United States District Court, S.D. New York
April 1, 2005.
JOSE J. SHOMO, Plaintiff,
CITY OF NEW YORK, et al., Defendants.
The opinion of the court was delivered by: ALVIN HELLERSTEIN, District Judge
OPINION AND ORDER GRANTING MOTION TO DISMISS, WITH PARTIAL LEAVE
Plaintiff Jose J. Shomo, a pro se inmate in the custody of
the Department of Correctional Services of the State of New York,
brings this suit pursuant to 42 U.S.C. § 1983, seeking
compensatory damages in the amount of $100 million relating to
alleged violations of the First, Fourth, Sixth, Eighth, and
Fourteenth Amendments to the U.S. Constitution by thirteen named
defendants and 5 unnamed defendants. Plaintiff bases his claims
on alleged deliberate indifference to his serious medical needs
relating to his upper body paralysis and nervous system
afflictions, assault, and destruction of personal property.
Defendants have filed a motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6) on the grounds that the action is barred by
plaintiff's failure (1) to file his claim within the statute of
limitations; (2) to file a notice of claim to preserve state law
claims; (3) to allege personal involvement on the part of certain
defendants; (4) to properly state a deliberate indifference to
medical needs claim; (5) to properly state a destruction of
property claim; and (6) because of certain defendants' qualified
immunity. I address such assertions by defendants as are
necessary to resolve this motion. I. Background
From September 20, 1999 to January 4, 2001, Plaintiff was in
the custody of the New York City Department of Corrections (DOC).
Plaintiff alleges that during that time various corrections
officers and medical care providers were responsible for numerous
and continuous incidences of deliberate indifference to his
medical needs, assault, and destruction of property. Plaintiff's
allegations are summarized below.
A. The Deliberate Medical Indifference Allegations
On his first day in custody, September 20, 1999, Shomo received
a physical examination from Dr. Christen Pedestu, who found that
Shomo suffered from right arm paralysis and limited use of his
left arm. See Compl., ¶ 30. Dr. Pedestu also noted that
"Plaintiff was receiving Health Home Attendants Services while he
was on the streets." Compl., ¶ 31. Accordingly, Dr. Pedestu
recommended that the DOC admit Shomo to the North Infirmary
Command (NIC). Id. Over the next five months, Shomo met with a
barrage of doctors, including defendants Dr. Shahid Nawaz, ¶¶ 35,
41; Dr. Saroja Singha,*fn1 ¶¶ 39, 40, 78, 80; Dr. Joy
Meyers, ¶¶ 40, 44-47, 71; Dr. Marie Francois, ¶ 52; Dr. Rameem
Seegobin, ¶¶ 67, 71; and various unnamed doctors.
Plaintiff Shomo's allegations relate that he suffered pain and
paralysis in his arms, making it difficult or impossible to
perform activities of daily living (ADLs) such as eating,
dressing, grooming, toileting, or bathing. See, e.g., Compl.,
¶¶ 33, 42-46. Medical and security staff at the DOC refused to
provide assistance with those activities, despite Plaintiff's
repeated requests. See e.g., Compl., ¶¶ 42-46, 50, 51, 54, 59,
66. Further, Plaintiff alleges that he was improperly housed with
the general population of inmates during his stays at various
detention facilities, when he should have been admitted to infirmary
custody because of his medical condition. See, e.g., Compl., ¶¶
33, 49, 51, 56, 62-66. As a result of these deprivations and
improper treatment, Plaintiff states that he experienced "muscle
spasms, migraine headaches, severe back and neck pain, as well as
emotional trauma." Compl., ¶ 99. In particular, Shomo alleges
that since DOC staff would not assist with him his ADLs, he was
forced to pay other inmates to perform those activities for him
or "remain dirty, stinking, unbathed, etc." Compl., ¶ 51. See
also Compl., ¶ 97.
Shomo also alleges that an injury to his foot went untreated by
staff for a prolonged period of time, causing unnecessary pain
and requiring Plaintiff to hop around on one foot for seven weeks
while his foot healed. See Compl., ¶¶ 78-81, 101. Because
medical staff refused to treat his foot, and because staff
refused to provide Plaintiff with a wheelchair, Plaintiff
allegedly fell down several times, causing injury to his left
shoulder and ribs, as well as emotional trauma. See Compl., ¶
Finally, Plaintiff alleges he suffered injury to his left arm
as the result of corrections officers' refusal to obey
instructions provided by the medical staff at the DOC. Following
a court appearance on October 7, 1999,*fn2 Corrections
Officer Pelite indicated that he intended to handcuff Shomo to
another inmate for the return trip to Rikers Island detention
facility. See Compl., ¶ 38. Plaintiff then explained to Pelite
that he carried medical instructions describing how to handcuff
him. Officer Pelite then notified the area supervisor, "Captain
Swartz."*fn3 Id. According to the complaint, Captain
Swartz said "he didn't give a hoot" what the medical instructions said, that it was too late to call special
transportation, NIC or anyone else. Id. He then ordered Shomo
to be handcuffed to the other inmate. Id. While handcuffed to
the other inmate, Shomo began to suffer muscle spasms. Id. He
later slipped while boarding the bus, causing his left arm, which
was cuffed to the other inmate, to be wrenched upwards. Id.
After these incidents, Plaintiff was taken to the NIC where he
indicated that he was feeling pain and could not move his left
B. The Assault Allegation
On March 11, 2000, Plaintiff alleges that after a brief
exchange of words, Corrections Officer Little reached through the
bars of his cell, and then "violently pulled him into the bars,"
Compl., ¶ 91, as well as "scratching and clawing him." Compl., ¶
135. As a result, Plaintiff suffered severe pain to the left
shoulder, lacerations, swelling, and bruises. See Compl., ¶
C. Destruction of Property
Shomo states generally that corrections officers destroyed his
personal property during searches of his cell and that this
occurred at least 100 times between October 8, 1999, and January
4, 2001. See Compl., ¶ 95. Plaintiff additionally states that
he suffered physical and emotional pain after each cell search
because his physical ailments made it painful for him to
rearrange his cell and that he was compelled to pay other inmates
to assist him. See Compl., ¶ 97. II. Discussion
A. Standards on a 12(b)(6) Motion to Dismiss
A Rule 12(b)(6) motion requires the court to determine whether
plaintiff has stated a legally sufficient claim. A motion to
dismiss under Rule 12(b)(6) may be granted only if "it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Conley
v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957);
Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991). The court's
function is "not to assay the weight of the evidence which might
be offered in support" of the complaint, but "merely to assess
the legal feasibility" of the complaint. Geisler v. Petrocelli,
616 F.2d 636, 639 (2d Cir. 1980). In evaluating whether plaintiff
may ultimately prevail, the court must take the facts alleged in
the complaint as true and draw all reasonable inferences in favor
of the plaintiff. See Jackson Nat'l Life Ins. Co. v. Merrill
Lynch & Co., 32 F.3d 697, 699-700 (2d Cir. 1994). Moreover, a
complaint submitted pro se must be liberally construed and is
held to a less rigorous standard of review than formal pleadings
drafted by an attorney. Hughes v. Rowe, 449 U.S. 5, 9,
101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Salahuddin v. Coughlin,
781 F.2d 24, 29 (2d Cir. 1986).
B. Service of Process
Corporate Counsel for the City of New York accepted service of
process and represents defendants City of New York, New York City
Department of Corrections, William Fraser, Eric Perry, Dr. Saroja
Singh, and Dr. Marie Francois. See Letter From Jordan M. Smith
to Hon. Alvin K. Hellerstein of April 26, 2004. Corporate Counsel
provided addresses for defendants Pauline Little, Dr. Joy Myers,
St. Barnabas Hospital, Marquita Wright, Dr. Shahid Nawaz, and Dr.
Rameeh Seegobin. Id. In his Opposition to Defendant Motion to
Dismiss ("Plaintiff's Opposition"), Shomo indicates that an attempt to serve defendants
Wright, Dr. Nawaz, Dr. Seegobin by United States Marshals did not
succeed, presumably because the addresses provided by the City of
New York were no longer accurate when the attempt was made. See
Plaintiff's Opposition ¶ 6.
Under ordinary circumstances, the plaintiff must serve notice
on the defendant within 120 days of filing the complaint. See
Fed.R. Civ. Proc. Rule 4(m). This rule is not strictly enforced
in pro se prisoner cases. See Carney v. Davis, 1991 U.S.
Dist. LEXIS 10254, No. 90 Civ. 2591, 1991 WL 150537, at *3
(S.D.N.Y. 1991) (declining to dismiss pro se prisoner's action
despite three and one-half years delay in service). I find that
Plaintiff Shomo requested that U.S. Marshals serve notice on Drs.
Nawaz and Seegobin within a reasonable period of time and that he
was not in a position to monitor whether they succeeded in
serving those defendants. I therefore direct Corporate Counsel
for the City of New York to investigate and provide Shomo with
updated addresses for Drs. Nawaz and Seegobin, and to confirm
that Dr. Myers has been served notice, as these are the only
three persons against whom Plaintiff has leave to re-plead.
C. Statute of Limitations
Plaintiff Shomo states claims under 42 U.S.C. § 1983, the Civil
Rights Act of 1964, the Rehabilitation Act of 1973, and the
Americans with Disabilities Act of 1990. See Compl., ¶¶ 97-136.
The defendants argue that the statute of limitations has expired
for all claims made by Shomo pursuant to those Acts.
1. 42 U.S.C. § 1983
Congress did not provide a statute of limitations period for
the filing of § 1983 claims. In the absence of congressional
specification, the Supreme Court has held that "[w]here state law provides multiple statutes of limitations for personal injury
actions, courts considering § 1983 claims should borrow the
general or residual statute for personal injury actions." Owens
v. Okure, 488 U.S. 235, 250 (1989). In New York, the relevant
period is three years. See N.Y.C.P.L.R. § 214(5) (Consol.
2004); Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir.
2002) (parties stipulated that relevant period for § 1983 claim
was three years).
Shomo was in prison at the time he filed this lawsuit. Pursuant
to the "mailbox rule" governing pro se complaints by
incarcerated litigants, Shomo filed his complaint on September
26, 2003, the day he swore his complaint before a Notary Public
and conceivably handed it to prison officials. See Dory v.
Ryan, 999 F.2d 679, 682 (2d Cir. 1993) (complaint deemed filed
on date prisoner gives the complaint to prison officials). Under
the three year statute of limitations, Shomo's complaint reaches
back to September 26, 2000. As defendants argue, however, Shomo
does not identify any specific conduct by defendants occurring
after April 14, 2000, although he does generally allege that
defendants were deliberately indifferent to his serious medical
needs through his release from prison on January 4, 2001. Shomo's
complaint therefore falls under the statute of limitations.
Since, however, he also alleges continuing indifference, and
therefore it is possible Shomo may allege a § 1983 claim that
accrues after September 26, 2000, I allow that possibility, as I
discuss later in this opinion.
Federal law governs the question of when the § 1983 claim
accrues, even though the statute of limitations is borrowed from
state law. See M.D. v. Southington Bd. of Educ.,
334 F.3d 217, 221 (2d Cir. 2003); Pearl v. City of Long Beach,
296 F.3d at 80 n. 2. Under federal law, the statute of limitations begins
to run once the plaintiff knows or has reason to know of the
injury on which his claim is based. Cornwell v. Robinson,
23 F.3d 694, 703 (2d Cir. 1994) (citing Singleton v. New York, 632 F.2d 185, 191 (2d Cir.
For the purposes of determining when Shomo's claim accrued, I
must first evaluate whether the doctrine of continuing violation
is applicable to his case. The doctrine of continuing violation
is available to litigants who bring Title VII employment
discrimination suits and tolls the statute of limitation such
that it does not begin until the last injurious act. See, e.g.,
AMTRAK v. Morgan, 536 U.S. 101, 116-17 (2002). To date, several
decisions have discussed, but refrained from applying, the
doctrine of continuing violation to medical indifference claims.
See Pino v. Ryan, 49 F.3d 51, 54 (2d Cir. 1995) ("plaintiff
has alleged no facts indicating a continuous or ongoing
violation"); Doe v. Goord, 2004 U.S. Dist. LEXIS 24808 (D.N.Y.
2004) ("Whether the `continuing violation doctrine' should apply
also need not be determined at this stage"); Griswold v.
Morgan, 317 F. Supp. 2d 226, 232 (D.N.Y. 2004) (declining to
decide whether continuous violation doctrine applied to
deliberate medical indifference claim and dismissing on other
grounds); Thomas v. Wright, 2002 U.S. Dist. LEXIS 19618 (D.N.Y.
2002) (same). However, in Cole v. Miraflor, 2001 U.S. Dist.
LEXIS 1681 (D.N.Y. 2001) (Sweet, J.) ("Second Circuit has
recognized that the rule may apply in [deliberate medical
indifference case]") (citing Pino v. Ryan, supra) (emphasis
added), the doctrine of continuing violation in a deliberate
medical indifference case was applied. I note that Cole's
complaint was later dismissed on administrative exhaustion
grounds. See 195 F. Supp. 2d 496 (S.D.N.Y. 2002).
In AMTRAK v. Morgan, supra, the United States Supreme Court
clarified the doctrine of continuing violation as it applied to
Title VII employment discrimination claims, holding that
"[h]ostile environment claims are different in kind from discrete
acts." 536 U.S. at 115. Discrete acts are those acts that
constitute a "separate actionable" violation by the defendant,
id. at 114, and "are not actionable if time barred, even when they are
related to acts alleged in timely filed charges." Id. at 113.
Hostile environment claims, on the other hand, involve acts that
"may not be actionable on [their] own." Id. at 115. Instead,
the "entire hostile work environment encompasses a single
unlawful employment practice," id. at 117, or in other words
the plaintiff's injury has a temporal component he or she is
subjected to discriminatory conditions day after day, and while
each day's undeserved humiliations may not independently provide
grounds for a lawsuit, in the aggregate the plaintiff has a
colorable claim of discrimination.
Shomo's claim more closely resembles the accumulation of acts
that create a hostile work environment claim, than allegations of
discrete acts of deliberate indifference. This is not to say that
all claims of deliberate indifference to serious medical needs
should be characterized as hostile work environment claims for
the purposes of tolling the statute of limitations. In fact, many
such claims allege discrete behavior, as when an inmate suffers a
serious injury that demands immediate attention, or when medical
care provider acts in such a way that manifests deliberate
indifference to the possibility of harm. Here, Shomo allegedly
entered prison already suffering from a chronic neurological
condition that, unlike a bleeding knife wound, required
attention, but not necessarily immediate attention. Moreover, it
is difficult to characterize an omission to provide care as a
discrete act when the needed care can occur at any point during
the day or week with identical effect. When the inmate is
paralyzed and unable to perform ADLs, except with great pain and
humiliation, as Shomo alleges, the desired assistance is
frequently needed, but a single failure to provide it does not,
by itself, cause an actionable injury.
I conclude that Shomo's claim is analogous to the hostile work
environment described in AMTRAK, supra, and that tolling the
statute of limitations on the basis of continuing violation in the deliberate medical indifference context has sufficient
support in this Circuit, the Supreme Court, and in the rationale
underlying the doctrine. Just as the hostile work environment
confronts the claimant with daily indignations that rise to the
level of a lawsuit only when aggregated, so might the suffering
inmate lack a claim on the first day the prison authorities or
doctors ignore his medical condition, and on the second day, and
the third. But over a stretch of months, the prisoner's suffering
at the hands of indifferent corrections officers and medical
staff might ripen into a legitimate complaint, and in such a
case, it would make sense to consider the entire period of
medical neglect, meaning that the unlawful practice would end on
the last day prison authorities had a duty to provide medical
care to Plaintiff Shomo. If this were true, Shomo's claim might
accrue later than September 26, 2000, and until January 4, 2001,
the day he was released from prison. Shomo's claim thereby might
come within the statute of limitations.
Further, the doctrine of continuing violation applies even if
the plaintiff became aware of the cause of action before the
statute of limitations ran, so long as a related act or omission
that forms part of the hostile environment, or in this case,
deliberate medical indifference claim, occurred within the
statute of limitations. See AMTRAK v. Morgan,
536 U.S. at 117-19. Thus even if Shomo were aware of a complete cause of
action on April 14, 2000, under the doctrine of continuing
violation, he would not be required to file suit within three
years of that date if related acts or omissions of deliberate
medical indifference occurred later. See id.
Since I hold that the doctrine of continuing violation applies
to deliberate indifference claims, I now must consider whether
Plaintiff Shomo alleges facts that enable him to invoke the
doctrine. To allege continuing violation, the plaintiff must
"allege both the existence of an on-going policy of
discrimination and some non-time-barred acts taken in furtherance
of that policy." Harris v. City of New York, 186 F.3d 243, 250 (2d Cir.
1999). I hold, giving Shomo the pleading benefits of a pro se
litigant, that Shomo has sufficiently alleged the existence of an
ongoing policy of denying him medical treatment, but that he has
not sufficiently alleged non-time-barred acts in furtherance of
the alleged policy of denying him medical treatment.
Shomo's allegations might amount to deliberate medical
indifference taking place between September 20, 1999, and April
14, 2000, but it is not clear. Shomo does not make any specific
allegations, after April 14, 2000, that he sought medical
assistance or was improperly denied care. His general allegations
encompassing the period from January 29, 1999 to January 4, 2001,
are insufficient to allege non-time-barred acts or omissions as
required by Harris v. New York, supra.
Therefore I dismiss the complaint, but in light of the
liberality accorded pro se litigants, Boag v. MacDougall,
454 U.S. 364 (1982), I give Plaintiff leave to re-plead. The
re-pleading, which must be served and filed within 30 days after
the City makes the report required by this Opinion, must give
specific time, place, and circumstances to show that Plaintiff
has a real, non-time-barred claim for relief.
2. Rehabilitation Act of 1973; Americans with Disability Act
The Rehabilitation Act of 1973, 29 U.S.C. § 704, and the
American with Disability Act of 1990, 42 U.S.C. § 12132, both
adopt the state residual personal injury statute of limitations,
which in New York is three years. See Harris v. City of New
York, 186 F.3d at 247-48. I decline to adopt the statute of
limitations analysis above for these statutes, however, because
Shomo clearly lacks a cause of action under either statute.
3. Statute of Limitations as it Relates to Corrections Officer
Little Unlike the provision of medical treatment, the assault
allegedly committed by Corrections Officer Little cannot be
construed as part of a deliberate medical indifference claim. An
assault is independently actionable, and as such the logic that
underlies the doctrine of continuing violation is inapplicable.
The complaint as it relates to Corrections Officer Little is
dismissed with prejudice.
4. Statute of Limitations as it Relates to Captain Swartz
Although Shomo might adequately state a claim of deliberate
indifference to his medical needs against defendant Captain
Swartz, I dismiss the claim against him with prejudice for the
same reasons as apply to Corrections Officer Little.
Specifically, the single incident that involved Captain Swartz,
see Compl., ¶ 38, does not fit within the larger pattern of
refusal to assist with ADLs that form the basis for Plaintiff's
continuing violation theory.
5. Statute of Limitations as it Relates to Destruction of
The doctrine of continuing violation does not apply to
destruction of property claims, and since Shomo does not specify
any such acts after September 26, 2000, his claim is dismissed
with prejudice to the extent that it alleges destruction of
D. Lack of Personal Involvement
I dismiss Plaintiff's complaint as it relates to defendants
William Fraser and Eric Perry since Plaintiff has failed to
demonstrate the kind of personal involvement required to show
constitutional violations. "It is well settled in this Circuit
that personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under §
1983." Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)
(citations omitted); see also Back v. Hastings On Hudson
Union Free School Dist., 365 F.3d 107, 127 (2d Cir. 2004) ("An
individual cannot be held liable for damages under § 1983 `merely because he held a
high position of authority,' but can be held liable if he was
personally involved in the alleged deprivation." (quoting Black
v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996))); Wright v. Smith,
21 F.3d 496, 501 (2d Cir. 1994) ("The rule in this circuit is
that when monetary damages are sought under § 1983, the general
doctrine of respondeat superior does not suffice and a
showing of some personal responsibility of the defendant is
required.") (citation omitted).
Colon instructs that the "personal involvement of a
supervisory defendant may be shown by evidence that: (1) the
defendant participated directly in the alleged constitutional
violation, (2) the defendant, after being informed of the
violation through a report or appeal, failed to remedy the wrong,
(3) the defendant created a policy or custom under which
unconstitutional practices occurred, or allowed the continuance
of such a policy or custom, (4) the defendant was grossly
negligent in supervising subordinates who committed the wrongful
acts, or (5) the defendant exhibited deliberate indifference to
the rights of inmates by failing to act on information indicating
that unconstitutional acts were occurring." 58 F.3d at 873
In his complaint, Shomo identifies Commissioner Fraser and
Deputy Commissioner Perry as having responsibility for operating
and maintaining DOC jails in the City of New York. See Compl.,
¶¶ 5, 6. Shomo only mentions these defendants again to indicate
that he filed a complaint with their respective offices alleging
the violations discussed above. See Compl., ¶¶ 26, 73. In his
Opposition to Defendant's Motion to Dismiss, Shomo adds that
although Fraser and Perry were aware of the violations, they did
nothing to protect him. Plaintiff's Opp., ¶ 15, and cites Brown
v. Coughlin, 758 F.Supp. 786 (1991) (finding allegation against
Commissioner sufficient to survive summary judgment). Shomo does not adequately state that Fraser and Perry were
aware of the violations he alleges. He does not indicate when he
complained to their offices, or what the content of the complaint
was. See Compl., ¶ 26, 73. Nor does the attempt to explain how
defendants Fraser and Perry were responsible, directly or
indirectly, for the acts of the other named defendants, or the
prevailing conditions that contributed to Plaintiff's injuries.
Therefore, Plaintiff fails to state a claim against defendants
Fraser and Perry and I order that the complaint against each of
them is dismissed, with prejudice.
E. Municipal Liability and the Department of Corrections
In order to establish the liability of a municipality in an
action under § 1983 for unconstitutional acts by a municipal
employee below the policymaking level, a plaintiff must establish
that the violation of his constitutional rights resulted from a
municipal custom or policy. Vann v. City of New York,
72 F.3d 1040, 1049 (2d Cir. 1995). To establish the violation, the
plaintiff must demonstrate the existence of the policy and show
that the policy caused his injuries. See Vippolis v. Village of
Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (citing Oklahoma
City v. Tuttle, 471 U.S. 808, 824 n. 8 (1985)). The municipal
policy does not need to be an explicitly stated rule or
regulation. A plaintiff may state a claim against a municipality
by showing that it repeatedly ignored complaints that would put
it on notice of the alleged violations. See Vann v. City of New
York, 72 F.3d at 1049.
Shomo fails to identify any municipal or DOC policy or custom
that caused his injuries and he does not effectively claim that
the DOC ignored his complaints. Plaintiff asserts that he was not
transferred to Goldwater Hospital because of a DOC policy that
restricted intake at the hospital to HIV positive patients. See
Compl., ¶ 71, 129. This policy could not have caused Shomo's injuries, nor did it prevent the DOC staff from assisting
him with ADLs at the NIC or other hospitals under contract with
the DOC, like St. Barnabas Hospital.
The argument that the DOC had a policy of ignoring medical
issues in general, or Shomo's medical issues in particular, fails
because Shomo was seen by many doctors and received numerous
medical tests. Shomo's complaint conveys that between the
beginning of his confinement on September 20, 1999 and the end of
his detailed allegations on March 11, 2000, he received attention
from medical staff on nearly a weekly basis. See generally
Compl., ¶¶ 29-91. He also received a nerve conduction study,
Compl., ¶ 82; a diagnostic MRI, Compl., ¶ 83; and various x-rays,
Compl., ¶ 86. Plaintiff also indicates that he received
prescribed medication. See e.g., Compl., ¶ 39. A reasonable DOC
supervisor or other individual with responsibility for agency
policy reviewing this record of treatment could easily conclude
that Shomo was receiving adequate care. Plaintiff's claim against
the City of New York is dismissed with prejudice.
Plaintiff's claim against the Department of Corrections is
dismissed with prejudice as all claims against City agencies
shall be construed as claims against the City of New York. See
N.Y. City Charter, Ch. 17, § 396; Echevarria v. Dep't of
Correctional Servs., 48 F. Supp. 2d 388, 391 (S.D.N.Y. 1999)
("suits against the DOC are suits against a non-suable entity and
are properly dismissed on that basis").
F. Deliberate Medical Indifference
The government has an obligation "to provide medical care for
those whom it is punishing by incarceration." Estelle v.
Gamble, 429 U.S. 97, 103 (1976). In order to establish a claim
under § 1983 for failure to provide medical attention, the
plaintiff must allege not only that he suffered from a serious
injury, but also that the injury sustained was caused by
"deliberate indifference" on the part of the defendants. Farmer v. Brennan,
511 U.S. 825, 832 (1994). Deliberate indifference might be found
when an official "knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of facts
from which the inference could be drawn that substantial risk of
serious harm exists, and he must also draw that inference. Id.
at 834. Though a plaintiff must prove at trial that the defendant
had a state of mind "equivalent to criminal recklessness,"
Hernandez v. Keane, 341 F.3d at 144, the subjective element of
intent may be pleaded generally. See Phelps v. Kapnolas,
308 F.3d 180, 186 (2d Cir., 2002).
Plaintiff Shomo does not allege medical malpractice, nor would
such a claim be actionable under Eighth Amendment law. See Smith
v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003) ("Eighth
Amendment is not a vehicle for bringing medical malpractice
claims"). First, he claims that although various doctors ordered
that he receive assistance with his ADLs, DOC staff, including
nurses and corrections officers, refused to provide that
assistance. Second, Shomo alleges that Drs. Myers, Nawaz, and
Seegobin transferred him to general population even though they
knew, on the basis of other doctors' findings, that he was unfit
for general population living.
Failure of Medical Staff and Security Staff to Assist with
As to the first general allegation, Shomo has not named
individuals who deliberately ignored medical instructions, with
the exception of the aforementioned Captain Swartz, Compl., ¶ 38.
Many of his allegations simply state that although he requested
assistance with ADLs from medical staff and security staff, none
was given, in spite of alleged doctor's orders. See Compl., ¶¶
45, 50, 51, 54, 59, 63, 66, 68, 70, 72, 76, 94 (medical and
security staff refused to assist with ADLs). Shomo alleges some of his injuries in the passive voice
and these allegations do not name any defendant at all, except by
inference. See e.g., Compl., ¶ 56 ("Plaintiff was not
transferred to NIC despite Dr. Daniel's expressed orders.");
Compl., ¶ 58 ("In spite of Dr. Appel's order the day before,
Plaintiff was cleared for housing in general population.");
Compl., ¶ 58 ("Plaintiff was to receive assistance with [ADLs].
These orders were not carried out.").
These allegations do no more than provide context to Shomo's
complaint. The plaintiff, however, must identify the party
responsible for his injuries, and Shomo does not do this with
respect to the medical and security staff's alleged failure to
assist with ADLs. I evaluate the deliberate indifference to
serious medical needs claims as to each of the named individuals
who could possibly remain in the suit below.
St. Barnabas Hospital
Plaintiff Shomo identifies St. Barnabas Hospital ("the
hospital") in paragraphs 119, 124, 125, 126, and 129, arguing
that the hospital had institutional responsibility to ensure that
medical staff provided proper care and that the hospital failed
to provide that level of care. I assume, without deciding, that
the hospital acts under color of state law with respect to DOC
inmates and is therefore subject to claims under § 1983.
The hospital is subject to the supervisory defendant analysis
of Colon, supra. Shomo does not adequately explain how the
hospital created a policy or custom under which unconstitutional
practices occurred, allowed the continuance of such a policy or
custom, was grossly negligent in supervising subordinates who
committed the wrongful acts, or exhibited deliberate indifference
to the rights of inmates by failing to act on information
indicating that unconstitutional acts were occurring. Colon,
58 F.3d at 873. It is not apparent from Shomo's complaint that any supervising authority at the hospital was
aware that medical staff refused to comply with doctors'
instructions, or that the hospital created or fostered a policy
that would encourage medical staff to refuse to comply. The
complaint is dismissed with respect to St. Barnabas Hospital.
Dr. Saroja Singh
Plaintiff Shomo identifies Dr. Saroja Singh in paragraphs 15,
39, 40, 78, 80, 110, and 111, alleging that Dr. Singh refused to
examine him, Compl., ¶ 39; and denied his request for a second
opinion, Compl., ¶ 39, 110. Shomo's claim against Dr. Singh falls
short because he indicates that during his medical appointments
Dr. Singh asked him questions about his condition and prescribed
him medication. At most, Shomo alleges that Dr. Singh was
negligent in giving treatment, and "negligence, even if it
constitutes medical malpractice, does not, without more, give
rise to a constitutional claim." Smith v. McGinnis, 2003 U.S.
Dist. LEXIS 25768 (D.N.Y. 2003) (citing Neitzke v. Williams,
490 U.S. 319, 321-22 (1989)). To rise to the level of medical
indifference, however, the defendant must have been aware of the
condition and deliberately refused to treat it with conscious
disregard of the substantial risk of serious harm. See Hernandez
v. Keane, 341 F.3d at 144. Although Plaintiff is not required to
plead that Dr. Singh acted with the "very purpose of causing
harm," Farmer v. Brennan, 511 U.S. at 835, he must at least
attempt to show that Dr. Singh was aware of the substantial risk
of harm to the defendant and chose to ignore it. Shomo concludes
that Dr. Singh's failure to provide more extensive treatment
resulted in the loss of the use of his left arm, Compl., ¶ 110
but other parts of his complaint undermine this assertion. In
particular, Shomo's complaint describes substantial neurological
problems affecting his left arm that pre-dated his interaction
with Dr. Singh, and indeed, appear to pre-date his incarceration. See Compl., ¶ 31
(Plaintiff's medical records showed that he received "Home
Health" services); Compl., ¶ 36 (Physician's Assistant Pitchford
issued medical instructions . . . "to prevent further
neurological damage to Plaintiff's left arm."). On the face of
Shomo's pleading, therefore, it is clear that Dr. Singh was not
the cause of the neurological damage to his left arm, and given
the nature of his condition, it seems highly unlikely that Dr.
Singh was in a position to make it worse when she treated him on
several different occasions. The complaint is dismissed with
prejudice as it relates to Dr. Singh.
Dr. Marie E. Francois
Plaintiff Shomo identifies Dr. Francois two times in his
complaint, in paragraph 20, declaring that she is a physician
with responsibility for treating inmates, and in paragraph 52,
alleging that Dr. Francois denied him a second opinion following
the results of an examination that indicated that he was able to
perform ADLs. Shomo clearly fails to state a claim against Dr.
Francois, since prisoners are not constitutionally entitled to a
second medical opinion. See Smith v. McGinnis, 2003 U.S. Dist.
LEXIS 25768 *13-14 (doctor's decision not to seek second opinion
not deliberate indifference to serious medical needs). The
complaint is dismissed with prejudice as it relates to Dr.
Physician Assistant Marquita Wright*fn4
Plaintiff Shomo identifies Ms. Wright in paragraph 19 and her
name does not appear again the complaint. The complaint is
dismissed as it relates to Ms. Wright.
Dr. Joy Myers,*fn5 Dr. Shahid Nawaz,*fn6 and Dr.
Rameeh Seegobin*fn7 Plaintiff Shomo is granted leave to re-plead his claim as it
relates to Drs. Myers, Nawaz, and Seegobin. The sequence of
events he describes fulfills the requirements to state a
deliberate indifference to medical needs claim under § 1983.
Shomo alleges that these doctors ordered his discharge from the
infirmary to the prison general population while fully aware that
he was incapable of performing ADLs. See Compl., ¶ 113 (Dr.
Myers); Compl., ¶ 120 (Drs. Nawaz and Seegobin).
On October 13, 1999, an unnamed neurologist at Bellevue
Hospital determined that Shomo was capable of performing ADLs
after performing a "non focal exam." See Compl., ¶ 48, 113.
Following this exam, however, multiple doctors determined that
Plaintiff required assistance with ADLs. See Compl., ¶ 55 (Dr.
Vettigunta on November 2, 1999); Compl., ¶ 56 (Dr. Daniel on
November 4, 1999); Compl., ¶ 57 (Dr. Appel on November 4, 1999);
Compl., ¶ 62 (Dr. Yeager on November 20, 1999). On February 11,
2000, Dr. Ismaila Adiatu found that Plaintiff was declared fit
for general population "due to a medical error." See Compl., ¶
84. Finally, on March 8, 2000, Dr. Adiatu "emphasized that
Plaintiff's case should be reviewed [at] the highest level,
because Plaintiff was not receiving the proper care." Compl., ¶
Shomo alleges that each of the named doctors was aware that
other doctors had found that he needed assistance with ADLs.
See Compl., ¶ 120 ("in spite of having reviewed various medical
records from outside hospitals [and] diagnostic test results
indicating Plaintiff's need for assistance with ADLs, Dr. Nawaz
and Dr. Seegobin ordered Plaintiff discharged from infirmary
care"); Compl., ¶ 121 (same allegation repeated for Drs. Myers
and Seegobin). As physicians, these individuals would have known
of and disregarded "an excessive risk to inmate health or safety," Farmer v. Brennan, 511 U.S. at 834, by transferring
Shomo to general population where he was unable to eat or bathe
because of his upper extremity paralysis. Shomo persistently
requested assistance with ADLs, and multiple doctors agreed that
his condition necessitated that assistance. Each doctor was aware
of these facts from which the inference could be drawn that a
substantial risk of serious harm existed.
Shomo alleges that he suffered serious physical pain and
emotional trauma as a result of his residence in the general
population with medical care. He also alleges that the refusal of
medical and security staff to assists with ADLs deprived him of
the conditions of basic human decency. See e.g., Compl., ¶ 114
(Plaintiff could not comply with strip searches, forced to eat
like a dog, pay other inmates to assist him with toileting,
bathing, and washing clothes). Although these consequences "do
not inevitably entail pain" they may nevertheless fail to comport
with contemporary standards of decency. See Koehl v.
Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996) (deprivation of
medically-prescribed eyeglasses sufficiently serious to violate
the Eighth Amendment).
The complaint is dismissed with prejudice as it relates to
defendants City of New York, New York City Department of
Corrections, Commissioner William Fraser, Deputy Commissioner
Eric Perry, Captain Swartz, Corrections Officer Little, St.
Barnabas Hospital, Marquita Wright, Dr. Saroja Singh, and Dr.
Marie Francois. The complaint is dismissed without prejudice and
Shomo is given leave to re-plead as it relates to defendants Dr.
Joy Myers, Dr. Shahid Nawaz, and Dr. Rameeh Seegobin. Corporate Counsel for the City of New York is directed to
determine the current addresses of defendants Drs. Myers, Nawaz,
and Seegobin, and to ascertain whether they have been served with
notice. Corporate Counsel shall file a report with Plaintiff and
this Court containing the service of notice status of remaining
defendants and their addresses within 30 days.
Plaintiff is advised that although he is granted leave to
re-plead against Drs. Myers, Nawaz, and Seegobin, he must allege
specific acts causing injuries committed by or at the instruction
of one or more of those individuals occurring after September 26,
2000, in order to come within the continuing violation doctrine
he seeks to invoke. If he fails to do so on re-pleading, his
complaint will be dismissed with prejudice. The re-pleading must
be filed within 30 days after the City files its report with the
Plaintiff and this Court.