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SHOMO v. CITY OF NEW YORK

United States District Court, S.D. New York


April 1, 2005.

JOSE J. SHOMO, Plaintiff,
v.
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 TO REPLEAD
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., ¶ 102.

  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 arm. Id.

  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., ¶ 136.

  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. 1980)).

  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 of 1990

  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 Property Claims

  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 property.

  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 (citations omitted).

  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 ADLs

  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. Francois.

  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., ¶ 90.

  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).

  III. Conclusion

  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.

  SO ORDERED.


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