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Burgess v. County of Rensselaer

December 14, 2006

BRIAN M. BURGESS, PLAINTIFF,
v.
COUNTY OF RENSSELAER; RENSSELAER COUNTY SHERIFF'S DEPARTMENT; DANIEL KEATING, LARRY WALRAED, ROBERT LOVERIDGE, HAROLD SMITH, DON HOGAN, AND MORTEZA S. NAGHIBI, M.D., IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES; KATHLEEN JIMINO, IN HER OFFICIAL CAPACITY; JOHN DOES # 1 THOUGH 9; ADEPT HEALTH CARE SERVICE, INC.; SHERRY LYNN MAC ISAAC, R.N.; PAULINE T. ROSE, L.P.N.; BARBARA JEAN CICOGNAMI, R.N.; ROSEMARY SOREL, L.P.N.; AND JANE DOES #1 THROUGH 2, DEFENDANTS.



The opinion of the court was delivered by: Neal P. McCurn, Senior District Judge

Memorandum, Decision and Order

In this civil rights action plaintiff Brian Burgess alleges that while he was held as a pre-trial detainee at the Rensselaer County Jail ("the Jail"), each of the 25 defendants named herein deprived him of his constitutional rights in one way or another. Named as defendants are the County of Rensselaer ("County"); the Rensselaer County Sheriff's Department; Daniel Keating, the County Sheriff; Larry Walraed, the County Undersheriff; Robert Loveridge, a Sheriff's Department colonel; Harold Smith, a Sheriff Department lieutenant; Don Hogan, Sheriff Department Forensic Coordinator; Mortez S. Naghibi, M.D., Jail Physician; Kathleen Jimino, Rensselaer County Executive; John Does No. 1-9; Adept Health Care Service, Inc. ("Adept"); Sherry Lynn Mac Isaac, R.N., Pauline T. Rose, L.P.N., Barbara Jean Cicognani, L.P.N. and Rosemary Sorel, L.P.N., nurses who purportedly worked at the Jail as employees of Adept.; and Jane Does No. 1&2.

The crux of plaintiff's argument is that if, among other things, the defendants had "regular[ly] and continuous[ly] observe[ed] [his] activities and/or [his] medical condition[,]" he would not have fractured his left hip while incarcerated. Doc. #55, exh. A thereto (Co.) at 13, ¶ 54. The first four of plaintiff's ten causes of action are based upon 42 U.S.C. § 1983. Additionally, he alleges six supplemental state law claims: (1) medical malpractice; (2) breach of contract*fn1 ; (3) intentional and/or negligent infliction of emotional distress; (4) negligence; (5) gross negligence; and (6) negligent supervision and retention of employees.

On January 25, 2006, the court heard oral argument with respect to the defense motions for summary judgment brought pursuant to Fed. R. Civ. P. 56. The court reserved decision. Following constitutes the court's decision in this matter.

I. Parties' Submissions

Prior to oral argument, the court alerted counsel to what it deemed to be certain deficiencies in their motion papers -- deficiencies which made resolving the court's task on these motions unnecessarily arduous. At that time the court took a fairly hardline approach in terms of what it would and would not deem to be part of the record. Upon further reflection, however, because it does not believe that parties should bear the brunt of their counsels' transgressions, and "because it does not wish to apply the Rules with a rigidity that would undermine the interests of justice," Hudson v. Internal Revenue Service, No. 03-CV-172, 2004 WL 1006266, at *4 n.9 (N.D.N.Y. March 25, 2004) (internal quotation marks and citation omitted), the court has retreated somewhat from its stated position prior to oral argument. Although "adverse to the conservation of judicial resources[,]"*fn2 Kilmer v. Flocar, Inc., 212 F.R.D. 66, 69 ((N.D.N.Y. 2002) (citations omitted), and although the court was "not required to consider what the parties fail[ed] to point out in their Local Rule [7.1 . . .] statements[,]" this court "in its discretion . . . has opt[ed] to conduct an assiduous review of the record[.]"*fn3 See Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (internal quotation marks and citations omitted); see also Badlam v. Reynolds Metals Company, 46 F.Supp.2d 187, 193 n.2 (N.D.N.Y. 1999) (court "parsed the record" where "the brunt of counsel's neglect w[ould] [have been] . . . . borne by their clients"). Thus, although it could have, the court "did not turn a blind eye to the facts elsewhere available[.]" See Little v. Cox Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995) (emphasis added). Counsel are forewarned that the court will not be so lenient in any future submissions which are similarly lacking.

II. Defendants

Based upon several concessions by plaintiff, the court grants the motions for summary judgment as to Jane Does 1 & 2; John Does 1-9; the Rensselaer County Sheriff's Department ("the Sheriff's Department" or "the Department"); and Kathleen Jimino, sued solely in her official capacity as Rensselaer County Executive. Granting these motions reduces the number of defendants from 25 to eleven. Further, despite the plain language of the complaint wherein plaintiff alleges that he is suing a number of the municipal defendants both in their individual and in their official capacities, during oral argument he changed his position. Now, plaintiff maintains that he is suing the following municipal defendants solely in their individual capacities: Daniel Keating, the County Sheriff; Larry Walraed, the County Undersheriff; Robert Loveridge, a Sheriff's Department colonel; Harold Smith, a Sheriff Department lieutenant; Don Hogan, Sheriff Department Forensic Coordinator; and Mortez S. Naghibi, M.D., Jail Physician. The court will proceed with its analysis accordingly.

III. 42 U.S.C. § 1983

Plaintiff's first four causes of action are based upon 42 U.S.C. § 1983,*fn4 which allows citizens to sue a state official for the deprivation of "any rights, privileges, or immunities secured by the Constitution and laws [of the United States]." 42 U.S.C. § 1983. To establish a claim under 42 U.S.C. § 1983, a plaintiff "must show that: 1) a person acting under color of state law committed the conduct complained of and 2) that the conduct deprived the Plaintiff[] of some constitutional right." Shpigler v. Etelson, No. 05 Civ. 6206(CLB), 2005 WL 2874792, at *6 (S.D.N.Y. Nov. 1, 2005) (citing Daniels v. Williams, 474 U.S. 327 (1986)).

The nurses contend that they are entitled to summary judgment with respect to plaintiff's first and third causes of action because plaintiff Burgess cannot establish either that they were state actors or that they deprived him of a constitutional right. For obvious reasons, the municipal defendants are not challenging their status as state actors. Like the nurses, however, the municipal defendants contend that they are entitled to summary judgment with respect to the first and third causes of action because plaintiff cannot establish that any of them deprived him of a constitutional right. The court will address each of these arguments in turn.

A. State Actor

The facts underlying the state actor issue are not in dispute, only the application of the law to said facts. The court will proceed with its analysis accordingly.

"The fundamental purpose of § 1983 is to provide compensatory relief to those deprived of their federal rights by state actors." Brown v. Community Action Organization, Inc., No. 03-CV-295S, 2005 WL 2412817, at *2 (W.D.N.Y. Sept. 29, 2005) (internal quotation marks and citations omitted). Thus, "a court assessing the viability of a § 1983 claim must first determine whether the actions alleged were committed under color of state law."*fn5 Id. (citation omitted). The nurses contend that they are not state actors because they did not have a contract with the state to provide medical services to those retained at the Jail. Rather, defendant nurses explain that they worked for defendant Adept, a company which "provides a variety of nursing services in a number of different settings." Doc. 55 at 9. Given the absence of a contract directly between the nurses and the County, the nurses claim that their relationship with plaintiff was nothing more than that of any "nurse and . . . patient[.]" Id. Hence the nurses reason that they cannot be held liable under section 1983 as they were not state actors when providing medical care to plaintiff.

Plaintiff counters that the nurses are state actors because they were employed by Adept, which did have a contract with the County to provide nursing care to Jail detainees. Thus, plaintiff alleges that he was deprived of his constitutional rights by "persons for whom the county is responsible and who were responsible to the county." Doc. 74 at 2 (citations omitted).

To support their argument that they are not state actors, the nurse defendants rely heavily upon Nunez v. Horn, 72 F.Supp.2d 24 (N.D.N.Y. 1999). In Nunez, the court held that the defendant physician who (1) operated on the plaintiff inmate at a hospital outside the prison; (2) did not have a contract with the state to render such services; and (3) was not a prison employee was not a state actor. To be sure, like the doctor in Nunez, the defendant nurses were not jail employees; nor did they, as individuals, have a contract with the County to provide nursing services. The lack of a contractual relationship between the nurses and the County is not dispositive of the state actor issue herein. That is especially so given the fact that the defendants nurses were employed by Adept, an entity which albeit private did have a contract with the County to provide nursing services to ail detainees; and is itself a state actor. Under the terms of that contract, the County reimbursed Adept, which in turn paid the nurses for providing their services to Jail detainees. Thus, in contrast to Nunez, there was a contractual relationship between the defendant nurses and the County, albeit not a direct one.

Nunez is also distinguishable from the present case because the defendant nurses did not "freely perform [their] medical duties in a much more physician-controlled environment[,]" i.e. a private non-prison hospital. Nunez, 72 F.Supp.2d at 27. Rather, the nurses here were rendering their medical services within the confines of a county jail where "the non-medical functions of prison life inevitably influence the nature, timing, and form of medical care provided to inmates such as [the plaintiff]." See West v. Atkins, 487 U.S. 42, 57 n. 15 (1988). Given these factual differences between Nunez and this action, the defendant nurses' reliance upon Nunez is misplaced. What is more, even a cursory examination of the relevant state actor jurisprudence demonstrates that the nurses are state actors.

"When, as here, the defendant is a private . . . individual, in order to satisfy the state action requirement, the allegedly unconstitutional conduct must be fairly attributable to the State." Szekeres v. Schaeffer, 304 F.Supp.2d 296, 306 (D.Conn. 2004) (internal quotation marks and citation omitted). "Numerous Supreme Court cases have identified the 'host of facts that can bear on the fairness of such an attribution.'" Community Action Organization, 2005 WL 2412817, at *3 (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296 (2001)). Succinctly put, "a private activity is deemed state action: (1) when there is a close nexus between the private and state actors, (2) when the private activity is a product of state compulsion, or (3) when the private activity is a public function." Turturro v. Continental Airlines, 334 F.Supp.2d 383, 394 (S.D.N.Y. 2004) (footnote omitted) (emphasis added).

Application of the public function test to the record as presently constituted provides further support for the conclusion that the defendant nurses are state actors. To be considered state actors under that test, the plaintiff must show that the private party used powers "traditionally the exclusive prerogative of the State." Rendell-Baker, 457 U.S. at 842. "The standard to declare a function to belong exclusively to the state is strict, and an extraordinarily low number of functions have been held to be public." Turturro, 334 F.Supp.2d at 396. Nonetheless, it is well-settled that "the provision of medical care to . . . prisoners is a public function, even if private physicians contract with the government to provide those services." Young v. Halle Housing Associates, L.P., 152 F.Supp.2d 355, 365 (S.D.N.Y. 2001) (citing West v. Atkins, 487 U.S. 42, 54 (1988)). In part the underlying rationale for that conclusion is that "[a]n inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met." See Estelle v. Gamble, 429 U.S. 97, 103 (1976). As the Supreme Court explained more fully in West:

It is only those physicians authorized by the State to whom the inmate may turn. Under state law, the only medical care . . . West could receive . . . was that provided by the State. If the Doctor . . . misused his power by demonstrating deliberate indifference to the plaintiff's serious medical needs, the resultant deprivation was caused, in the sense relevant for state-action inquiry, by the State's exercise of its right to punish the plaintiff by incarceration and to deny him a venue independent of the State to obtain needed medical care.

West, 487 U.S. at 56.

Even though the issue in West was whether a private doctor who was under contract with the state to provide medical care to inmates at a state prison hospital was a state actor for section 1983 purposes, nothing in West or its progeny suggests that a distinction should be made between doctors and nurses in that setting. Because Nunez is readily distinguishable from the present case and because the defendant nurses herein were engaging in a public function, the court denies their summary judgment motion to the extent they are claiming that they are not state actors. This conclusion is bolstered by the fact that given its contractual relationship with the County to provide nursing services to County jail inmates, as the nurse defendants acknowledge in their reply memorandum,"Adept may very well be a state actor for the purpose of § 1983[.]" Doc. 75 at 5. See Sherlock v. Montefiore Medical Center, 84 F.3d 522, 527 (2d Cir. 1996) (citation omitted) ("The fact that a municipality is responsible for providing medical attention to persons held in its custody may make an independent contractor rendering such services a state actor within the meaning of § 1983 with respect to the services so provided[.]") "[B]y extension," then, the nurses, as employees of a state actor are also state actors. See Riester v. Riverside Community School, 257 F.Supp.2d 968, 972 (S.D.Ohio 2002) (where community school was found to be a state actor, so were its employees and management companies); cf. Davis v. Cole-Hoover, No. 03CV550, 2004 WL 1574649, at *10 (W.D.N.Y. June 14, 2004) ("The question of whether [the hospital] (and its affiliated medical personnel) is a state actor . . . turns on the contractual relationship [the hospital] had with DOCS [the Department of Correctional Services].")

B. Deprivation of a Constitutional Right

Section 1983 "is not in itself a source of substantive rights, but instead proves a method for vindicating federal rights elsewhere conferred." Kearsey v. Williams, No. 99 Civ. 8646 DAB, 2005 WL 2125874, at *2 (S.D.N.Y. Sept. 1, 2005) (internal quotation marks and citations omitted). In the present case, plaintiff relies upon five separate constitutional amendments as the bases for his section 1983 claims. In his first cause of action, plaintiff alleges that all of the individual defendants denied him medical treatment, and this denial amounted to deliberate indifference to his serious medical needs in violation of the Fifth, Eighth and Fourteenth Amendments to the United States Constitution. The second cause of action is against certain Jail officials for failure to intercede on plaintiff's behalf when his rights were being violated. Plaintiff's third cause of action is substantially similar to his first, except that it is couched solely in terms of the Due Process Clause of the Fourteenth Amendment, and it names therein only two municipal defendants -- Forensic Coordinator Hogan and Dr. Naghibi -- along with the nurses. Plaintiff's fourth cause of action alleges that the municipal defendants, with the exception of the doctor, through their "policies, procedures, customs and practices. . . violated [his] civil rights . . . under the First, Fourth, Fifth, Eighth and Fourteenth Amendments[.]" Co. at 18, ¶ 70.

Of the five amendments to which plaintiff Burgess cites in his complaint, only one directly applies here -- the Fourteenth. On the face of it, the freedoms which the First Amendment protects, such as "speech, press, religion, assembly, association and petition for redress of grievances[,]" Malloy v. Hogan, 378 U.S. 1, 5 n. 4 (1964) (and cases cited therein), are not implicated herein; and plaintiff has not attempted to explain how they might be. Accordingly, to the extent plaintiff's fourth cause of action is predicated upon alleged violations of the First Amendment, the court sua sponte grants summary judgment in defendants' favor. Likewise, there is no readily apparent basis for plaintiff's reliance upon the Fourth Amendment which protects against "unreasonable searches and seizures," U.S. CONST. amend. IV, and plaintiff offers none. Thus the court sua sponte grants summary judgment in defendants' favor in this regard as well.

Plaintiff fares no better when it comes to the Fifth Amendment, which applies only to the federal government. Sylla v. City of New York, No. 04-cv-5692, 2005 WL 3336460, at * 2 (E.D.N.Y. Dec. 8, 2005) (citing Public Utilities Commission of District of Columbia v. Pollak, 343 U.S. 451, 461 (1952)). "Where, as here, defendants are municipal, rather than federal entities and officials, a due process claim under the Fifth Amendment must be dismissed." Id. (citation omitted). Thus plaintiff has improperly invoked the Fifth Amendment, and the court sua sponte grants summary judgment in defendants' favor in this regard as well. Likewise, because plaintiff Burgess was an unconvicted pre-trial detainee at the times of the events complained of herein, and not an inmate, his reliance upon the Eighth Amendment is misplaced. See R.Dye v. Virts, No. 03-CV-6273L, 2004 WL 2202638, at *3 n.1 (W.D.N.Y. Sept. 28, 2004) ("At all relevant times, plaintiff was a pretrial detainee, not a prisoner, and as such, the Eighth Amendment does not apply.")*fn6 In light of the foregoing, the only source of the constitutional right which plaintiff is seeking to vindicate is his Fourteenth Amendment due process right to adequate medical treatment.

1. Due Process

Because the nurse defendants' state actor argument is unavailing, and because there is no dispute that the municipal defendants are state actors, the issue becomes whether any of these defendants deprived plaintiff of his right to adequate medical care. At this juncture the court also will address this issue in terms of the individual municipal defendants.

"[T]he official custodian of a pretrial detainee may be found liable for violating the detainee's due process rights if the official denied treatment needed to remedy a serious medical condition and did so because of his deliberate indifference to that need." Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996) ...


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