The opinion of the court was delivered by: L. Sharpe U.S. District Judge
Following her attempt to commit suicide, plaintiff Kelly Ann Mayo, through her father, brought suit against defendants County of Albany (the "County") and Correctional Medical Services, Inc. ("CMS")*fn1 claiming, among other things, deliberate indifference, pursuant to 42 U.S.C. § 1983, as well as state law claims for breach of contract and negligence. Defendants have moved for summary judgment and plaintiff has responded with a cross-motion for summary judgment. Following review of the parties' briefs, the responses, the law and the record on the matter, the court grants the County and CMS's motions for summary judgment and denies Mayo's motion for summary judgment.
The following relevant facts are undisputed. On May 13, 2006, Mayo was booked into the County's correctional facility after being charged with Criminal Possession of a Controlled Substance. (Mayo's Statement of Material Facts at ¶ 1, Dkt. No. 59-3, and Ex. E, Dkt. No. 51-8.) On the same date, at 2:30 A.M., Mayo was administered a suicide prevention screening by Officer Mark Charette. (Mayo's Statement of Material Facts at ¶ 2, Dkt. No. 59-3.) During the suicide screening, Mayo indicated that it was her first incarceration, that she had a history of heroin abuse and had last used heroin the day before, and that she was worried about major problems other than her legal situation. (Id. at ¶ 3.) Officer Charette concluded Mayo was not a suicide risk. (Id. at ¶ 4.) Officer Charette then referred Mayo for a medical evaluation. (Id. at ¶ 5.) Pursuant to a contract with the County, pre-trial detainees receive services by CMS. (Id. at ¶ 6.)
On May 13, 2006, at 3:15 A.M., Mayo was examined by Debra Vogel R.N., a nurse employed by CMS. (Id. at ¶ 9.) As part of her medical history and screening, Mayo advised Vogel that she had experienced withdrawal problems on prior attempts to quit drugs and that she took a medication named Subutex.*fn2 (Vogel's Deposition at p. 19-20, Dkt. No. 51-17.) Vogel then spoke to Dr. Michael Salzman regarding Mayo's medical evaluation. (Mayo's Statement of Material Facts at ¶ 11, Dkt. No. 59-3.) Dr. Salzman gave telephone orders to place Mayo on a heroin/alcohol detoxification regime. (Id. at ¶ 12.)
Mayo was housed in the infirmary in cell number one and placed on active supervision. (Id. at ¶ 14.) Active supervision requires that an officer conducts a personal observation of the inmate every 30 minutes and is immediately available to respond to emergencies. (Mooney's deposition at p. 53, Dkt. No. 51-14.) On May 15, 2006, Mayo was the only inmate housed in the infirmary. (Mayo's Statement of Material Facts at ¶ 15, Dkt. No. 59-3.) Cell number one is the cell located nearest the infirmary. (Id. at ¶ 18.) In the infirmary, the nurses conduct rounds of the inmates every two hours. (Vogel's deposition at p. 27, Dkt. No. 51-17.) The charge nurse was to determine if additional supervision was warranted for an inmate housed in the infirmary. (Cooper's deposition at 44, Dkt. No. 51-20.) No additional supervision was requested concerning Mayo. (Vogel's deposition at 51-52, Dkt. No. 51-17.)
When an inmate is housed in the infirmary, CMS nurses could request a mental health referral and constant observation, if necessary. (Id.) At the time of the incident, CMS did not request to increase the level of supervision for Mayo nor did it request a mental health evaluation of Mayo. (Id.)
Mayo's detoxification flow sheet revealed that on May 15, 2006, at 6:30 A.M., she was suffering from tremors, agitation and visual hallucinations. (Mayo's Statement of Material Facts at ¶ 36, Dkt. No. 59-3.) She complained to Nurse Laventure that she was seeing gnats. (Id.) Dr. Salzman, subsequent to this report, examined Mayo and documented that she appeared stable. (Ex. W at ¶ 3, Dkt. No. 54-26, Ex. S at ¶ 18, Dkt. No. 54-22, and Ex. C, Dkt. No. 54-6.) Later that day, Officer Shannon Marshal ("Officer Marshal"), the officer working in the medical unit at the time who performed rounds in the infirmary, checked on Mayo every 30 minutes beginning at 3:00 P.M. (Marshall's deposition at pp. 49, 58-63, Dkt. No. 51-15.) Officer Marshall reported seeing Mayo standing by her door at 3:00 P.M., 3:30 P.M., 4:00 P.M. and 4:30 P.M. (Id.) At 4:41 P.M., Officer Marshall found Mayo hanging in her cell by a bed sheet. (Id. at pp. 62-63.) As a result of her attempted suicide, Mayo suffered permanent brain damage. (Mayo's Statement of Material Facts at ¶ 51, Dkt. No. 59-3.)
Mayo, through her father, has brought this civil rights action claiming, among other things, deliberate indifference, as well as state law breach of contract and negligence. Defendants moved for summary judgment and Mayo responded with a cross-motion for summary judgment.*fn3
To defeat a summary judgment motion, the nonmoving party must show sufficient evidence to create a genuine issue of material fact. Wills v. Amerada Hess Corp., 379 F.3d 32, 41 (2d Cir. 2004). The nonmoving party must provide more than a scintilla of evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In other words, the party must present sufficient evidence to permit a reasonable juror to find in its favor, but the nonmoving party cannot simply rely on unsupported allegations in attempting to survive a summary judgment motion. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
I. Deliberate Indifference
"A municipality may be sued under 42 U.S.C. § 1983 for the constitutional violations of its employees occurring pursuant to an official policy or custom." Ramos v. City of New York, 298 Fed.Appx. 84, 86 (2d Cir. 2008) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 692 (1978)). However, under Monell, "a municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue. Respondeat Superior or vicarious liability will not attach under § 1983." City of Canton v. Harris, 489 U.S. 378, 385 (1989). Thus, Monell liability exists only if a policy or custom of the municipality inflicts injury. Id. Moreover, a private corporation also is liable under Section 1983 for its own unconstitutional policies or customs. Rojas v. Alexander's Dept. Store, Inc., 924 F.2d 406, 408 (2d. Cir. 1990).
"The rights of one who has not been convicted are protected by the Due Process Clause." Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996). "Thus, the 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 ...