UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
August 27, 2009
ESTATE OF VALERIE YOUNG, ET. AL., PLAINTIFFS,
STATE OF NEW YORK OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Lewis A. Kaplan, District Judge.
At the time of her demise, Valerie Young was a mentally retarded 49 year-old woman who was in defendants' custody and care. Plaintiffs, Viola Young, individually and in her capacity as administrator of Valerie's estate, and Valerie's two siblings, seek damages for Valerie's alleged mistreatment and untimely death. They assert violations of her substantive due process rights, as well as violations of the Americans with Disabilities Act ("ADA")*fn1 and the Rehabilitation Act of 1973 ("Rehabilitation Act").*fn2 The matter now is before the Court on defendants' motion for summary judgment dismissing the complaint.*fn3
Valerie Young resided at the Brooklyn Developmental Center ("BDC"), a residential treatment facility operated by the New York Office of Mental Retardation and Developmental Disabilities ("OMRDD"), from 1990 until her death on June 19, 2005. She suffered from severe mental retardation and other maladies. These included (1) a seizure disorder that was controlled with medication, (2) a neurological condition that affected her gait and caused her left foot to drop, and (3) bilateral edema of her feet. Despite these conditions, however, Young's health was generally stable. Her mental condition improved and deteriorated over time, prompting her treatment team to try different medications.*fn4
OMRDD is the New York State agency charged with providing services to persons with mental retardation and developmental disabilities. It provides services through thirteen developmental disabilities services offices ("DDSOs"). The BDC is the DDSO for Kings County, New York. The BDC is not a hospital, but its staff includes psychiatrists, psychologists, physicians, nurses, dentists, social workers, and physical and occupational therapists.*fn5
Peter Ushakow was director of the BDC from 2000 until his retirement in 2008 and was responsible for overseeing its daily operations. Jan Williamson, deputy director of operations at the BDC since 2004, supervises its residential units. Suresh Ayra is a former deputy director of the BDC who left in 2004 whose duties included overseeing the business office, discipline coordinators, residential services, housekeeping, maintenance and the power plant.*fn6
Defendants Ferdinand, Hayes, and Milos all were part of Young's interdisciplinary treatment team ("ITT"). Every resident of a BDC unit has an ITT, comprised of a psychiatrist and/or psychologist, medical providers, social worker and other staff who provide direct care, recreation, speech, physical therapy and occupational therapy.*fn7 Ferdinand was Young's treatment team leader beginning in May 2001, Hayes was Young's residential unit supervisor beginning in 2003, and Dr. Milos was Young's treating physician starting in January 2002. All three defendants continued in their respective roles until Young's death.*fn8
The Parties' Contentions
On June 19, 2005, at approximately 8:30 p.m., Young collapsed in the shower and was taken to the hospital where she died later that night. The autopsy report attributed her death to a pulmonary embolism in consequence of deep vein thrombosis ("DVT") of the lower extremities due at least in part to inactivity.*fn9 Plaintiffs allege that Young was denied necessary health care and treatment by defendants, which caused her pain and suffering and ultimately led to her death.*fn10
The core of the complaint is the contention that Young, during the last months of her life, largely was confined to a wheelchair or otherwise kept immobile as a result of sedative medication and untreated and/or inadequately treated conditions.*fn11 Plaintiffs assert that defendants knew or should have known that inactivity can cause DVT and, in turn, pulmonary emboli and that they caused Young's death by allowing her to remain sedentary without regular standing and walking.. In plaintiffs' view, Young died because defendants failed to take prophylactic measures meeting minimum professional standards and defendants thus violated Young's substantive due process rights.*fn12
Defendants argue that the oversight, monitoring, evaluation, and treatment of Young by BDC staff conformed to the accepted standard of care.*fn13 They deny that inactivity is a risk factor for DVT and assert that Young's care providers could not reasonably have anticipated that she would develop DVT and a fatal pulmonary embolism because she had none of the currently accepted risk factors or symptoms recognized as increasing the likelihood of DVT. Defendants deny also that Young was sedentary or kept immobile and contend that Young received physical therapy, ambulated with assistance, and appeared wholly asymptomatic in the three weeks prior to her death.*fn14
Prior Proceedings -- Plaintiffs' Motion for Sanctions
In November 2004, Young's ITT placed her on fifteen minute checks that required staff to watch her closely because she had suffered an unexplained injury.*fn15 BDC staff were required to make entries reflecting these checks in special observation logs. Plaintiffs quite understandably sought discovery of those logs in this action but, with the exception of four pages from the logs, they were not produced.*fn16
On May 14, 2008, plaintiffs moved for sanctions for the alleged spoliation of the logs.*fn17 On March 31, 2009, this Court found, inter alia, that defendants failed in their duty to preserve the logs, that this failure was at least negligent, and that the logs contained information relevant to plaintiffs' substantive due process claim.*fn18 Accordingly, the Court granted plaintiffs' motion for sanctions to the extent that (1) the Court could draw an adverse inference against defendants on any merits-based dispositive motions that defendants might make before or during trial, and (2) the jury, should the case reach that stage, would be permitted to hear evidence regarding the missing evidence and be given an adverse inference instruction.*fn19
I. Summary Judgment Standard
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.*fn20 In deciding a motion for summary judgment, a court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party.*fn21 For the non-moving party to defeat summary judgment, all that is required "'is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or a judge to resolve the parties' differing versions of the truth at trial.'"*fn22
II. ADA and Rehabilitation Act Claims
Plaintiffs' second and third claims for relief allege that the defendants' acts and omissions in the treatment of Valerie Young violated the ADA and the Rehabilitation Act. Defendants move for summary judgment dismissing both claims on several grounds.*fn23
Plaintiffs have failed to address defendants' arguments or even to mention either claim. They thus have abandoned their ADA and Rehabilitation Act claims.*fn24 Accordingly, defendants are entitled to summary judgment dismissing the second and third causes of action.
III. Claims Against Defendant Ayra
Plaintiffs concede that defendant Suresh Arya left BDC prior to the alleged conduct at issue here and do not oppose defendants' motion to the extent that it seeks Ayra's dismissal from this action.*fn25 Accordingly, all claims against Ayra are dismissed.
IV. Due Process Claim
A. Eleventh Amendment
The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State . . ."*fn26 Furthermore, "[a] state's Eleventh Amendment protection from suit extends to its agencies and departments,"*fn27 and it applies to suits against State officials in their official capacities.*fn28 Accordingly, defendants are entitled to dismissal of all claims against the OMRDD, which is a State agency,*fn29 and of the claims against the individual BDC defendants in their official capacities.
B. Claim Against Individual Defendants in their Personal Capacities
What remains is plaintiffs' substantive due process claim against the remaining individual defendants in their individual capacities. Defendants argue that this claim too must be dismissed because (1) plaintiffs have failed to raise a genuine issue of material fact, (2) the defendants in any case are entitled to qualified immunity, and (3)defendants Uschakow and Williamson were not personally involved in Young's care and treatment.
1. The Substantive Due Process Standard
The substantive component of the Due Process Clause bars "certain government actions regardless of the fairness of the procedures used to implement them."*fn30 To prevail on their substantive due process claims, plaintiffs must show that defendants' actions were "'arbitrary, conscience-shocking, or oppressive in a constitutional sense,' and not merely 'incorrect or ill-advised.'"*fn31 In the context of a state's affirmative duties to individuals in its custody or care, officials may be liable under Section 1983 only if their "omissions were a substantial factor leading to the denial of a constitutionally protected liberty or property interest, and the officials displayed a mental state of deliberate indifference with respect to those rights."*fn32
A further note is appropriate in light of the fact that defendant Milos is a physician. "A doctor will not be held liable under Section 1983 for treatment decisions unless such decisions are 'such a substantial departure from accepted judgment, practice, or standards as to demonstrate that [she] actually did not base the decision on such a judgment.'"*fn33 This standard requires more than simple negligence by the doctor, but less than deliberate indifference.*fn34 It is not violated if experts merely disagree with care or treatment decisions that actually were made or think that another course of conduct would have been better.*fn35 Indeed, the issue is not whether the optimal course of treatment was followed, but whether "'professional judgment in fact was exercised.'"*fn36
2. Disputed Issues of Material Fact
Defendants' protestations to the contrary notwithstanding, there remain disputed issues of fact material to plaintiffs' substantive due process claim.
First, while it is undisputed that Young suffered from drop foot in her left foot and that she had an unstable gait and difficulty walking prior to her death,*fn37 the parties hotly contest whether Young was kept essentially immobilized in the months and weeks prior to her death.*fn38 Certainly there is evidence supporting defendants' contention that Young was ambulatory, used a wheelchair merely for transport, and was not kept sedentary.*fn39 However, as the Court already observed in addressing the sanctions motion, there is evidence also suggesting that Young may have been kept immobile in that time period.*fn40 For instance, the autopsy report concluded that inactivity contributed to Young's death,*fn41 and the special observation log entries for the date of her death suggest that she sat in her wheelchair continuously from 3:00 p.m. until 8:00 p.m.*fn42 Young's mother testified that BDC staff did not regularly walk Young because she was unsteady on her feet,*fn43 and a log entry from April 20, 2005 stated that Young was "to remain in a wheelchair at all times."*fn44 Indeed, the BDC's own mortality review commission discussed the fact that "staff who monitored [Young] may not have encouraged her to walk around because of fear of her falling."*fn45 Furthermore, there is at least some evidence supporting plaintiffs' contention that Young's medication kept her sedated and contributed to her alleged sedentariness.*fn46
The New York State Commission on the Quality of Care and Advocacy for Persons with Disabilities (the "Commission") also conducted an investigation into Young's death. It found that Young "[d]ied of a PE [pulmonary embolism] from DVT from inactivity" and that the "facility did not adequately address the implications."*fn47 In a post-investigation letter sent to director Uschakow, the Commission's investigator noted his suspicion that Young "may have spent extended periods of time in her wheelchair."*fn48 The Commission's report noted also that there was evidence that Young, contrary to defendants' claim, may have been using a wheelchair prior to April 2005.*fn49
The foregoing evidence would be more than sufficient to demonstrate the existence of genuine issues of material fact without resorting to the spoliation of the observation logs. That spoliation, however, reinforces the conclusion because plaintiffs are entitled to an inference that Young was sedentary in the period leading up to her death.
Defendants attempt to sidestep this factual dispute by asserting that it is immaterial. Specifically, they argue that plaintiffs' claim still would fail even if Young had been kept immobile because plaintiffs "cannot overcome the medical fact that DVT can occur without warning."*fn50 But the argument is not persuasive.
Defendants' contention that Young's alleged inactivity is immaterial rests on their broader argument, supported by their expert Diane Sixsmith, that inactivity is not a risk factor for DVT and that Young had neither any of the accepted risk factors for DVT nor symptoms recognized as increasing the likelihood of a DVT diagnosis.*fn51 But they overlook the fact that the question whether inactivity is a risk factor for DVT is itself a disputed issue in this case. Plaintiffs' expert contradicts Sixsmith and contends that inactivity is a risk factor for DVT.*fn52 Moreover, Sixsmith's ultimate conclusion that Young was not at risk for DVT in consequence of inactivity itself is based at least in part on defendants' version of the disputed issue of whether Young was sedentary.*fn53
Further, the autopsy report's conclusion that Young's death was at least in part the result of DVT caused by inactivity on its face suggests at least a potential causal connection between inactivity and DVT.*fn54 Indeed, the BDC's own mortality review commission on Young's death "discussed possible preventive measures for consumers who are at a high risk for DVT's (i.e., smokers, sedentary, non ambulatory)."*fn55
Finally, defendants rely on plaintiffs' expert, Dr. Bindie, who stated that "DVT is frequently asymptomatic or the symptoms are not classical" and that the "first sign of DVT can be pulmonary emboli or death."*fn56 They argue on this basis that plaintiffs essentially have conceded that defendants could not reasonably have anticipated that Young would develop DVT and a fatal pulmonary embolism. But this argument too is insufficient to defeat the motion.
As an initial matter, defendants quote Dr. Bindie out of context, eliding the next sentence in his report in which he concluded that "[a] high index of suspicion is necessary."*fn57 When read as a whole, it is obvious that Dr. Bindie's point is that a high degree of caution is necessary to prevent DVT precisely because it can be asymptomatic. Together with plaintiffs' core contentions that inactivity is a risk factor for DVT and that a trier of fact would be entitled to conclude that Young was kept inactive for months and weeks before her death, Dr. Bindie's opinion supports rather than undermines plaintiffs' claim.
In sum, there are material disputed factual issues as to whether sedentariness or inactivity are risk factors for DVT and whether Young in fact was maintained in a sedentary state. These disputed issues go to the heart of plaintiffs' claim that the treatment and care Young received fell below professionally accepted minimum standards and shocked the conscience.
3. Qualified Immunity
There nevertheless remains the question of whether, as defendants assert, any of the individual defendants on her treatment team is entitled to qualified immunity at this stage of the proceedings.
"Government officials performing discretionary functions are entitled to qualified immunity 'from federal constitutional claims . . . as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.'"*fn58 A defendant is entitled to qualified immunity if either (1) the defendant's actions did not violate clearly established law or (2) it was objectively reasonable for the defendant to believe that his actions did not do so.*fn59
Defendants assert that defendants Milos, Ferdinand and Hayes are entitled to dismissal on the ground of qualified immunity because their treatment and care of Young was objectively reasonable and that there is "no evidence" that they "were deliberately indifferent to Ms. Young's care and, therefore, no violation of her constitutional rights."*fn60 But the facts about defendants' conduct remain in sharp dispute. Indeed, defendants do not argue that they would be entitled to qualified immunity even if they treated and cared for Young as plaintiffs allege they did. On the contrary, defendants' argument for qualified immunity is predicated on the disputed factual assertions that (1) Young was not kept sedentary, (2) even if she was, sedentariness is not a risk factor for DVT, and (3) "[a]t a minimum, Young received proper treatment and care for her particular medical and mental health conditions."*fn61
Thus, while the Court is cognizant of the important role qualified immunity plays as a shield not just against ultimate liability, but against lawsuits and their attendant costs,*fn62 resolving the issue at this stage, when the facts are not clear, would be inappropriate.*fn63
4. Supervisory Liability and Lack of Personal Involvement
Finally, defendants Uschakow and Williamson argue that the substantive due process claims against them must be dismissed because they were not personally involved in Young's treatment or care.*fn64
"'[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite" to a damages award under Section 1983.*fn65 Until recently, the Second Circuit rule was that a supervisory official was "personally involved" only when that official:
"(1) participate[d] directly in the alleged constitutional violation;
(2) fail[ed] to remedy the violation after being informed of the violation through a report or appeal;
(3) create[d] or allow[ed] the continuation of a policy or custom under which unconstitutional practices occurred;
(4) act[ed] with gross negligence in supervising subordinates who commit the wrongful acts; or
(5) exhibit[ed] deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring."*fn66
This Term, however, the Supreme Court in Ashcroft v. Iqbal held that "[b]ecause vicarious liability is inapplicable to . . . [section] 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution,"*fn67 and it explicitly rejected the argument that "'a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution.'"*fn68 Accordingly, "[a]bsent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct."*fn69
Precisely what remains of the Second Circuit rule in light of Iqbal is not entirely clear. While the Circuit has not yet addressed the question, one of my colleagues has concluded that:
"[o]nly the first and part of the third Colon categories pass Iqbal's muster -- a supervisor is only held liable if that supervisor participates directly in the alleged constitutional violation or if that supervisor creates a policy or custom under which unconstitutional practices occurred. The other Colon categories impose the exact types of supervisory liability that Iqbal eliminated -- situations where the supervisor knew of and acquiesced to a constitutional violation committed by a subordinate."*fn70
Plaintiffs do not contend that Uschakow and Williamson were directly involved in any of the treatment or care at issue. Rather, they assert that they are liable because they failed to failed, either before or after Ms. Young's death, to adopt a policy to prevent DVT .*fn71
As an initial matter, it is difficult to see how either Uschakow or Williamson could be held liable on the theory that he failed, after Ms. Young's demise, to adopt a policy to prevent DVT. Any such failure would bear no causal connection to the harm allegedly caused by their alleged constitutional violation.
Plaintiffs' allegations with respect to the inaction of Messrs. Uschakow and Williamson during the period before Ms. Young's death are exceptionally vague, amounting essentially to a claim that they ultimately were responsible for the proper running of the facility and, in consequence, for any failure to adopt a policy to prevent DVT therefore would suffice to establish supervisory liability even after Iqbal.
The Court has considerable doubt that supervisory liability properly could be imposed on such a basis, as it appears that the duty would be far too general. But it would be inappropriate to resolve that issue until the facts concerning the actual responsibilities of Messrs. Uschakow and Williamson, what they did and did not do, and the relationship, if any, of their actions and omissions to Ms. Young's situation are clear. As these defendants have failed to demonstrate the absence of a genuine issue of material fact on an issue as to which they would have the burden of proof at trial, summary judgment on qualified immunity grounds would be inappropriate at this juncture.
For the foregoing reasons, defendants' motion and amended motion for summary judgment dismissing the complaint [DI 36, 48]*fn72 are granted to the extent that plaintiffs' (1) Section 1983 claims against the OMRDD and against all individual defendants in their official capacities, and (2) the second and third causes of action are dismissed. They are denied in all other respects.