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Dilworth v. Goldberg

United States District Court, S.D. New York

September 13, 2012

Anthony G. DILWORTH and Patricia Dilworth, Plaintiffs,
v.
Randy GOLDBERG, M.D., et al., Defendants.

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Michael Anthony Deem, Michael A. Deem, P.L.L.C., Mt. Vernon, NY, for Plaintiffs.

Darius Patrick Chafizadeh, Harris Beach PLLC, Adam Rodriguez, Reginald James Johnson, White Plains, NY, for Defendants.

OPINION AND ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge.

Anthony Dilworth (" Dilworth" ) and Patricia Dilworth (" Patricia" ) (together, " the Dilworths" or " plaintiffs" ) have brought this action arising out of Dilworth's confinement in the Westchester County Jail (the " WCJ" ). They allege various federal and state claims against New York Medical College (" NYMC" ), Westchester County, the Westchester County Health Care Corporation (" WCHCC" ), and 47 individuals.[1]

In a previous ruling, certain claims alleged in plaintiffs' second amended complaint

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were dismissed, including all claims against NYMC. Plaintiffs have moved this Court for leave to amend their complaint for a third time. The County Defendants have opposed plaintiffs' motion to amend. While it is not a party at this time, NYMC submitted a memorandum of law in opposition to plaintiffs' motion. For the reasons discussed below, plaintiffs' motion to amend is granted in part and denied in part.

I. BACKGROUND

A. Procedural History

On May 22, 2009, Anthony Dilworth filed a pro se complaint regarding his treatment at the WCJ under a separate docket number. See Complaint, filed May 22, 2009 (Docket # 2 in 09 Civ. 4810). Dilworth retained counsel in September 2009 and voluntarily dismissed his pro se complaint under that docket on October 6, 2009. See Voluntary Dismissal, filed Oct. 6, 2009 (Docket # 8 in 09 Civ. 4810).

On March 15, 2010, the Dilworths filed the complaint in the instant action. See Complaint, filed Mar. 15, 2010 (Docket # 2). On April 2, 2010, plaintiffs amended their complaint for the first time. See First Amended Complaint, filed Apr. 2, 2010 (Docket # 8). On September 14, 2010, the Court granted plaintiffs leave to file a second amended complaint, see Order, filed Sept. 14, 2010 (Docket # 133), and plaintiffs filed their second amended complaint on September 17, 2010, see Second Amended Complaint, filed Sept. 17, 2010 (Docket # 134) (" 2d Am. Compl." ).

The defendants moved to dismiss plaintiffs' second amended complaint. The motions of NYMC and two other defendants were granted in their entirety, and the County Defendants' motion was granted in part and denied in part. See Dilworth v. Goldberg, 2011 WL 4526555, at *11 (S.D.N.Y. Sept. 30, 2011). Plaintiffs filed the instant motion to amend on January 24, 2012.[2] The County Defendants opposed the motion.[3] NYMC also submitted a memorandum of law and affidavit in opposition to plaintiffs' motion to amend the second amended complaint.[4]

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B. Facts

The following is a summary of the allegations in the 89-page proposed third amended complaint. These allegations are assumed to be true for the purpose of resolving the instant motion.

1. Initial Injuries

From October 3, 2008 through September 23, 2009, Anthony Dilworth, who is African-American, was a pretrial detainee in the WCJ. See Proposed Verified Third Amended Complaint, dated Jan. 2012 (annexed as Ex. 1 to Deem Decl. 1) (" 3d Am. Compl." ) ¶¶ 13, 64. On December 16, 2008, a " trustee" of the WCJ spilled liquid wax on the floor of the WCJ. Id. ¶ 66(a). No caution signs were placed in the area, id. ¶ 66(b), and no correctional officer was in position to warn passersby of the hazard because the officer assigned to the area had quit his post without proper authorization, id. ¶ 66(c). While walking down the hallway, Dilworth slipped and fell on the wax, " suffered severe injuries to his head, back, and right arm, and lost consciousness due to the fall." Id. ¶ 66(d).

After the fall, Malfer and Birrittella " happened upon" Dilworth, who was then lying on the floor " in obvious physical distress and severe pain." Id. ¶ 66(e). Instead of calling an emergency code, " Malfer instructed other inmates to assist Mr. Dilworth to the WCJ's infirmary, in direct contravention to [Westchester County Department of Correction (" DOC" ) ] customs, policies, and procedures." Id. ¶¶ 66(g)-(h). Klivans, Rogers, James, Kadel, Malfer, and Birrittella were in the infirmary when Dilworth arrived. Id. ¶ 66(j). James gave Dilworth a " cursory" examination, id. ¶ 66( l ), and " deliberately understated and inaccurately documented Mr. Dilworth's actual medical condition," id. ¶ 66(m). Dilworth was released from " medical care in violation of rules, regulations, and policies governing the WCJ." Id. ¶ 66(m).

Dilworth tried to return to his bed, but Rogers ordered him to attend a previously scheduled visit with Patricia and " threatened to charge him with disobeying a direct order if he did not comply." Id. ¶ 66( o ). Dilworth visited with Patricia. See id. ¶ 66(r). Dilworth's injuries were immediately apparent to Patricia, a nurse, and various correction officers. See id. ¶¶ 66(p), (r), (s), (u), (w). At no time, however, was a " code" called or was Dilworth provided with emergency medical care. Id. ¶ 66(x).

After meeting with his wife, Dilworth was " brought to his bed in a wheelchair and ... [was] left to his own devices, in direct contravention to controlling emergency medical procedures, and rules, regulations, and policies governing the WCJ." Id. ¶ 66(y). Rogers went to Dilworth and demanded that he sign " fraudulent paperwork," which stated that Dilworth was the cause of his own accident and which would have " effectively waiv[ed] all legal claims against Westchester County, Malfer and others." Id. ¶ 66(z).

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2. Ensuing Events

The next day, December 17, 2008, Dilworth was visited by Klivans, Malfer, Rogers, Kenney, Williams, Alexander, James, Kadel, and Dr. Goldberg. Id. ¶ 67(a). Dilworth informed the group that " he could not breathe and suffered from extreme back pain." Id. ¶ 67(c). Dilworth was carried, placed in a wheelchair, and taken to the WCJ's medical clinic. Id. ¶¶ 67(e)-(f). Dilworth was unable to control his bowels and bladder, id. ¶ 67(g), and his " leg and arm shook uncontrollably," id. ¶ 67(h). " Kadel lifted Mr. Dilworth's shirt and discovered [that] he had sustained a chemical burn from the floor wax he fell in the day prior." Id. ¶ 67(j). At no time was Dilworth " transported to qualified emergency medical personnel, or otherwise provided access to them." Id. ¶ 67(i).

Dr. Goldberg examined Dilworth's back and asked Rogers to view it as well. Id. ¶ 67(k). Dr. Goldberg and Rogers then proceeded to have a private conversation, id. ¶ 67( l ), in which a " conspiracy to deny Dilworth all federal and state rights was spawned ... in order to cover up Malfer's and Birrittella's original misconduct," id. ¶ 67(m). Dilworth's medical records were falsified, see id. ¶¶ 67(p)-(r), and officers prevented him from being transported to a hospital, despite the fact that a sergeant told him that he should have been taken to one, id. ¶¶ 67(n), (t), (u), (w). Instead, Dilworth was transported to J2 Dorm, " a non-handicap accessible housing unit," where Dilworth was left in a bed " in direct contravention to controlling emergency medical procedures, rules, regulations, and policies governing the WCJ." Id. ¶ 67(u). " Upon arrival at J2 Dorm the correction officer on duty stated to Rogers, James and Kadel that Mr. Dilworth should be in the hospital, and J2 Dorm was not the proper housing area for a handicapped inmate." Id. ¶ 67(w) (internal quotation marks omitted).

3. Events in J2 Dorm

From December 17, 2008 through December 22, 2008, Dilworth was denied meals on several occasions, see id. ¶¶ 68(a), 71(b); was not able to take a shower, see id. ¶¶ 68(b)-(c); and was refused pain medication, see id. ¶ ¶ 71(d)-(e), 105(a). " Mr. Dilworth was made to lie in his own feces and urine for five days due to his inability to ambulate and the denial of all medical aids, including a portable urinal." Id. ¶ 74. Dilworth's request for a wheelchair was ignored and he was forced to walk with crutches, see id. ¶¶ 67(s), 75(e)-(f), which were eventually confiscated by Rogers, id. ¶¶ 75(a)-(b). During this time, Dilworth was not permitted to file sick call slips or grievances. See id. ¶¶ 67(y), 69(a)-(b), 71(a), 75(g), 79(d). Dilworth was repeatedly told by Rogers and other correction officers that he was being denied treatment per Rogers' orders. See id. ¶¶ 75(g)-(j), 75(r)(ii); see also id. ¶¶ 69(d), 97(h)-(n), 133(b). Rogers threatened Dilworth and told him not to file grievances. See id. ¶¶ 66( o ), 75(g), 149(a).

Patricia made visits to the WCJ on December 23, 2008 and on December 27, 2008. See id. ¶¶ 78(a), 83(a). On both occasions, " she waited for an extended period of time, but [Dilworth] never came to see her." Id. ¶¶ 78(b), 83(b). Patricia visited the WCJ again on December 30, 2008, and was able to visit with her husband, but when he arrived he was crying due to extreme pain and his " hand shook uncontrollably." Id. ¶¶ 84(a)-(c). During a subsequent visit with Patricia, Dilworth lost control of his bladder in her presence. Id. ¶ 85(a).

While in J2 Dorm, multiple correction officers told Dilworth not to submit any more grievances or otherwise refused to accept grievances, see id. ¶¶ 79(a)-(b), 79(d), 92(b), 92(g), 100(b), and Dilworth's subsequent requests for sick call slips and

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grievance forms were denied, see id. ¶¶ 110(a)-(c), 117(a)-(b), 166(a)-(b); see also id. ¶ 133(b) (" Rogers also instructed Reyes-Amariles and other correction officers that if Mr. Dilworth asked for ‘ anything’ their answer was to be ‘ No, just no.’ " ). Dilworth " subsequently made copies of his completed grievances and forwarded them to [Patricia]" who sent the grievances to the New York State Commission of Correction (" Commission" ). Id. ¶¶ 80-81; see also id. ¶ 36. Dilworth won one grievance submitted to the Commission and was informed he would be taken to the hospital, but he was not taken to the hospital. See id. ¶¶ 92(a)-(d).

During his time in the WCJ, multiple officers offered Dilworth medical treatment, commissary items, and early release if he agreed to sign a statement waiving his potential legal claims against Westchester County and other defendants. See id. ¶¶ 85(h), 89(d), 92(f), 100(a), 107, 118(f), 126(d). On multiple occasions, Dilworth was instructed to waive legal claims or to not bring any actions against other officers. See id. ¶¶ 66(z), 96. In addition, multiple officers prevented Dilworth's fellow inmates from assisting him. See id. ¶¶ 101, 118(a), 118(g)-(i), 135(i)-(j). If inmates did assist Dilworth, they were punished by correction officers. See id. ¶¶ 116(g)-(h), 118(g)-(i), 120, 135(i)-(j).

Throughout the course of his stay in J2 Dorm, Dilworth was subjected to numerous adverse actions. Dilworth's " law library, church, education and recreation privileges" were all revoked. Id. ¶ 92(g); see also id. ¶¶ 115, 117(c). His complaints of pain were consistently ignored and medical treatment was denied, despite the fact that Dilworth's injuries were well known. See id. ¶¶ 90(c)-(e), 94(c), 102, 104(b), 104(i), 106, 109(c)-(e), 111, 119. Dilworth " was assigned to Chronic Care, and prescribed various pain medications. However, Dr. Goldberg stated a certain prescription would not be renewed because Mr. Dilworth was ‘ costing [him] too much money.’ " Id. ¶¶ 90(a)-(b) (brackets in original). In addition, Dilworth's subsequent requests for pain medications were ignored. See id. ¶¶ 91, 97(a), 99. Instead, Dilworth was prescribed Tylenol. See id. ¶ 90(e). When Dilworth told Dr. Goldberg that Tylenol was " contraindicated for people with high blood pressure, such as himself," Dr. Goldberg told Dilworth that if he did not take the medications prescribed, including Tylenol, he would be disciplined. See id. ¶¶ 90(f)-(g).

Dr. Goldberg diagnosed Dilworth as having " ‘ tennis elbow,’ " despite the fact that he had previously informed Dilworth that his x-rays revealed that he had a " chipped bone in his right arm, and would need surgery to straighten his arm and remove the bone chip." Id. ¶¶ 90(c)-(d). At some point, Dilworth discovered that he had received authorization to use a wheelchair " for all appointments in the old jail clinic." Id. ¶ 97(b). However, Rogers learned of this authorization and deleted it. Id. ¶ 97(d). On multiple occasions, the logbooks of the jail and Dilworth's medical records were falsified in order to cover up the fact that Dilworth was not receiving the services he required. See id. ¶¶ 67(r), 92(j), 97(d), 105(b), 112(k). Dilworth was also prevented from obtaining a copy of his accident report. See id. ¶¶ 88, 109(a)-(b).

On February 12, 2008, Dilworth was referred to Mental Health Services. Id. ¶ 104(a). On that day, Dilworth spoke with Dr. Schramm. See id. ¶ 104(c). NYMC employed Dr. Schramm to provide mental health care to WCJ inmates. Id. ¶ 23. During the session, Dr. Schramm was told by a person named Hines " that J2 Dorm was not the proper housing area for Mr. Dilworth." Id. ¶ 104(f). Dr. Schramm told Dilworth he would look into the allegations, but Dilworth was not

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transferred from J2 Dorm or taken to qualified medical personnel. Id. ¶¶ 104(g)-(h). " Schramm also failed to provide any mental health care to Mr. Dilworth." Id. ¶ 104(i).

On one occasion, Dilworth was physically examined by Dr. Goldberg and others to determine whether he would be allowed to leave the WCJ for medical care. See id. ¶ 111(d). During the physical examination, Dr. Goldberg manipulated Dilworth's legs, " causing him extraordinary pain. Mr. Dilworth screamed in agony and pleaded for him to stop." Id. ¶¶ 111(e)-(f). Dr. Goldberg persisted. Id. ¶ 111(g). " As Goldberg pushed Mr. Dilworth's leg towards his chest[,] Mr. Dilworth heard a pop in his lower back, and experienced the greatest pain of his life." Id. ¶ 111(h). Dr. Goldberg " ignored the signs of Mr. Dilworth's physical distress." Id. ¶ 111( l ). " Goldberg then compelled Mr. Dilworth to attempt to walk on his heels...." Id. ¶ 111(m). Dilworth " attempted to comply, but fell to the floor striking his head and back, thereby exacerbating his original injuries and suffering additional severe pain." Id. ¶ 111(p).

At some point, Dilworth " attempted to take a shower with the assistance of the only aid available, a plastic chair." Id. ¶ 112(a). The chair broke and Dilworth fell in the shower stall " striking his face and teeth [on] the tiled floor." Id. ¶¶ 112(b)-(c). " As a result of the impact[,] Mr. Dilworth suffered additional physical injuries and severe pain, including subsequent loss of two teeth and a lacerated lip." Id. ¶ 112(d). Dilworth was not provided with emergency dental care. Id. ¶ 112(g). " Over the course of the next three months Mr. Dilworth submitted approximately twenty sick call slips to see a dentist, because his tooth and gum had become infected." Id. ¶ 112(i). " Goldberg directed Mr. Dilworth to stop submitting call slips for dental, and refused to perform an examination or prescribe an antibiotic even though puss visibly oozed from his lip and gum, emitting a putrid odor." Id. ¶ 112(j). Dr. Goldberg falsely stated in Dilworth's medical chart that he had examined Dilworth. Id. ¶ 112(k). Approximately two weeks after his fall, unidentified DOC medical personnel told Dilworth that he should have been prescribed antibiotics for his infected gum and that his tooth should be pulled. See id. ¶¶ 112( l )-(n). However, DOC medical personnel refused to pull the tooth because it had broken off below the gum line and an extraction of the tooth would therefore be considered surgery. See id. ¶ 112(m). DOC medical personnel recommended to Dilworth that he have the tooth pulled once released from custody. Id. ¶ 112(n). The DOC medical personnel " were acting pursuant to directives, policies, customs and/or practices of Westchester County, WCHCC and/or NYMC." Id. ¶ 112( o ).

On one occasion, " Patrick, Rogers and SanMarco compelled Mr. Dilworth to watch a brutal physical assault by Patrick upon inmate James Bowen who had injured his head and back when he fell out of the top bunk of a bunk bed." Id. ¶ 87(a). Dilworth tried to leave the area and avert his eyes from the " horrific display of brutality, but SanMarco issued a ‘ direct order’ to ‘ watch.’ " Id. ¶ 87(i). " As Patrick brutalized Mr. Bowen SanMarco assured Mr. Dilworth that if he ‘ signed’ fraudulent papers and waived his legal claims[,] things would get ‘ easier,’ Mr. Dilworth would be transferred to the hospital ward, and ‘ no more Rogers.’ " Id. ¶ 87(j). " Goldberg, Kadel, and James were present and personally observed the entire incident, but never attempted to interfere with Patrick's repeated assaults." Id. ¶ 87( o ). " Patrick, Rogers, and SanMarco were never disciplined for their misconduct against the other detainee or Mr. Dilworth." Id. ¶ 87(x).

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In February or March 2009, Dilworth asked Rogers " for permission to use the law library to obtain information regarding filing a notice of claim against Westchester County." Id. ¶ 115(a). Rogers denied Dilworth's request but told him that he would provide him with the information. Id. ¶ 115(b). " Rogers subsequently provided a boilerplate notice of claim form...." Id. ¶ 115(c). However, Rogers had " altered the form by crossing out the preprinted addressee on the form and writing in a party not authorized by state law to receive Mr. Dilworth's notice of claim on behalf of Westchester County." Id. ¶ 115(d).

Rogers and other correction officers encouraged other inmates at the prison to assault Dilworth. On a number of occasions, three inmates " filled ... balls with rice and other hard objects and repeatedly hurled them at Mr. Dilworth's head and genitals, often striking their intended target." Id. ¶ 116(c). " Mr. Dilworth reported the assaults to Maccabee, Poggi, Rogers and other correction officers on several occasions." Id. ¶ 116(d). However, the officers " refused to intervene or prevent the physical assaults." Id. ¶ 116(e). The same three inmates later beat and kicked Dilworth in the bathroom of their housing unit. Id. ¶ 116(j). One of the inmates, Thomas, told Dilworth that the beatings were " for Big Dog [Rogers]." Id. ¶ 116(k). " R. Freeman was on duty and in close enough proximity to hear Mr. Dilworth's screams for help from the bathroom, but failed to intervene in the prolonged and boisterous beating or document its occurrence." Id. ¶ 116( l ).

4. Events in J1 Dorm

After Dilworth refused protective custody, he was transferred to J1 Dorm. See id. ¶ 118(e). Once there, he was not provided access to the law library, see id. ¶¶ 121-22, and his medical needs continued to be ignored, id. ¶ 127. Dilworth was told that there was nothing wrong with him and that he was " ‘ delusional’ " for thinking he was injured. Id. ¶¶ 119, 127(c). " Garrett also arbitrarily confined Mr. Dilworth to a holding pen and forced him to stand in a manner that caused severe pain, on several occasions. Maintaining that position often resulted in Mr. Dilworth losing control of his bladder and soiling his clothes." Id. ¶¶ 129(b)-(c). On one occasion, " a Muslim Imam employed by the WCJ[ ] observed Mr. Dilworth leaving a trail of urine in the hallway and stated to Klivans that Mr. Dilworth should be in a wheelchair, and in the hospital." Id. ¶ 129(d)(v). " Klivans responded, in part, ‘ We're breaking him.’ " Id. ¶ 129(d)(vi). Dilworth " attempted to return to his area to change clothes," but Garrett refused his request, and then forced him to attend a visit with his wife. See id. ¶¶ 129(d)(vii)-(viii). Bourhill was present in the hallway at this time. Id. ¶ 129(d)(ix). After the incident, the Dilworths complained to Soychak and other correctional officers about Dilworth's medical condition and the fact that he could not control his bladder. Id. ¶¶ 129(d)(x)-(xi). " Soychak replied, ‘ Don't drink water.’ " Id. ¶ 129(d)(xii).

On numerous occasions, Dilworth was threatened with physical violence by correctional officers. See, e.g., id. ¶¶ 129(d) (vi), 130(a)-(b), 130(e)-(f), 132(e), 153(e), 176(b), 188; see also id. ¶ 149(a) (threatening the lives of Dilworth's children). Dilworth was also the target of racial slurs by multiple correctional officers. See, e.g., id. ¶¶ 132(c)-(f), 143(a), 153(d), 158(h), 184. Indeed, on one occasion, after threatening to " break" Dilworth, instructing Dilworth to " [s]it [his] black ass down," and calling Dilworth a " nigger," Santos revealed a tattoo on his shoulder to Dilworth. Id. ¶¶ 153(d)-(e). The tattoo depicted a scene in which three babies of different ethnicities— " ‘ Jews,’ ‘ Niggers,’ and ‘ Chinks' " — hung by their necks from nooses. Id.

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¶ 153(e). Santos informed Dilworth, " ‘ This is what we do[,]’ as he simulated grabbing the rope with his hand and hanging the ethnicities represented by the babies." Id. Dilworth submitted a grievance regarding Santos's demonstration of his tattoo to Dilworth, but " Santos informed Mr. Dilworth that nothing would come of his grievance." Id. ¶ 153(f). Another sergeant informed Dilworth that, with respect to Santos's tattoo and his explanation thereof, " Santos has a right of expression and nothing could be done about it." Id. ¶ 153(g).

On January 8, 2009, Dilworth " was scheduled to see the optometrist due to his blurred vision, which had begun after his slip and fall." Id. ¶ 95(a). Dilworth was seen by Dr. Bailey-Wallace, who " intentionally or recklessly misdiagnosed Mr. Dilworth with poor vision and in need of glasses, as justification for denying him medical care for his severe head injury." Id. ¶ 95(c). In February 2009, Kadel informed Dilworth that a medical report indicated that Dilworth had " ‘ chronic nerve damage; ’ [t]hat the nerve damage was due to Mr. Dilworth's ‘ head injury; ’ [t]he nerve damage was most likely the cause of his blurry vision, uncontrollable shaking and incontinence; and [t]hat he probably suffered from a ‘ pinched nerve’ in his spine." Id. ¶ 106(a).

" While housed in J Dorm[,] Mr. Dilworth completed and submitted several commissary orders. Most of these orders were never filled." Id. ¶¶ 135(a)-(b). Dilworth was incorrectly told that his orders were not being filled because " he did not have sufficient funds in his account." Id. ¶ 135(c). " Around January 2009[,] Mr. Dilworth informed Rogers that he was not receiving the items that he ordered from the commissary." Id. ¶ 89(a). Rogers, who " is responsible for the processing of inmate[s'] commissary purchase orders," id. ¶ 89(g), told Dilworth " that he would not get any commissary privileges because Mr. Dilworth did not know ‘ how to keep [his] mouth shut,’ " id. ¶ 89(b) (alteration in original), and offered to provide him with commissary privileges " if he signed a fraudulent document waiving his legal claims against Westchester County and other defendants," id. ¶ 89(d), but Dilworth refused, id. ¶ 89(e). " Various correction officers informed Mr. Dilworth that Rogers was responsible for the interference with his commissary privileges." Id. ¶ 135(d). Dilworth " brought this to the attention of Driesen, Kenney, Laughlin, Poggi, SanMarco, C. Smith, and several other correction officers," id. ¶ 135(e), although his complaints were never investigated and his commissary orders " continued to be interfered with," id. ¶¶ 135(f)-(g).

5. Events in A-Block

Eventually, Dilworth " was reassigned to A Block for the purpose of being housed in a handicap accessible cell and housing area." Id. ¶ 137(a). " The following day, Goldberg threatened to stop Mr. Dilworth's pain medications unless he identified the person responsible for assigning him to a handicap cell." Id. ¶ 137(b). While in A-Block, Dilworth did not receive his pain medication, was not provided meals on a regular basis, and was not assigned an aide to assist him with daily necessities. See id. ¶ 138(a). " In about May 2009, Goldberg arbitrarily discontinued Mr. Dilworth's pain medication." Id. ¶ 139. Dilworth was not allowed to file grievances and was told by various correction officers that the officers had been directed by their " supervisors and senior correction officers to not accept any grievances from Mr. Dilworth." Id. ¶¶ 138(b)-(c). " Garrett routinely interfered with Mr. Dilworth's visits, and intentionally inflicted physical, psychological and emotional pain upon him by requiring Mr. Dilworth to

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stand in a manner that knowingly caused him severe pain." Id. ¶ 150(a).

Dilworth endured various retaliatory acts as a result of the actions he initiated against defendants. As retaliation for the original pro se action Dilworth initiated, " Rogers directed continuous lighting of Mr. Dilworth's cell," id. ¶ 140(a), and made threats against the lives of the Dilworths' children, id. ¶ 149(a); see also id. ¶ 154 (" While housed in A Block, on information and belief, Rogers ordered all newly hired correction officers to arbitrarily search Mr. Dilworth because he was likely to be carrying contraband, when in fact he was not." ). While Dilworth resided in A-Block, " Garrett routinely interfered with Mr. Dilworth's visits, and intentionally inflicted physical, psychological and emotional pain upon him by requiring Mr. Dilworth to stand in a manner that knowingly caused him severe pain." Id. ¶ 150(a). Garrett ignored Dilworth's pleas that Garrett was causing him pain. Id. ¶¶ 150(b)-(c). Smiley, a member of the Special Investigation Unit, told Dilworth " that the reason he was being tortured was because of his federal lawsuit." Id. ¶ 150(f).

" On May 15, 2009, Mr. Dilworth was transferred to a handicap accessible cell." Id. ¶ 146. Starting on May 21, 2009, Dilworth " was confined to his cell for forty-one days due to fabricated disciplinary charges filed" against him. Id. ¶ 147.

While housed in A-Block, Dilworth submitted 50 grievances to Rogers, Kenney, Poggi, and other correctional officers regarding his unfilled commissary orders. See id. ¶ 152(a).

These grievances were never investigated. See id. ¶ 152(b). " Donna Blackmon, a supervisor of Aramark, verified that Mr. Dilworth's funds had been improperly removed from his account" and that " she never received any paperwork from Rogers, Kenney, Poggi, or any other correction officer or supervisor regarding Mr. Dilworth's complaints." Id. ¶¶ 156(a)-(b). On June 12, 2009, Blackmon discovered " that several of Mr. Dilworth's orders from Aramark were improperly placed in a storage room." Id. ¶ 157(a). Blackmon also told Dilworth that another inmate who had a pending legal claim against Westchester County " [w]as also experiencing interference with his commissary privileges." Id. ¶ 157(c). A correctional officer was present when Dilworth spoke with Blackmon and stated, ‘ " What do you expect ... you're suing the County.’ " Id. ¶ 157(b) (ellipsis in original).

While Dilworth was housed in A-Block, " Schramm conducted a physical examination of Mr. Dilworth," id. ¶ 145(a), in which he reviewed Dilworth's " medical chart and original pain medications, which had since been stopped by Dr. Goldberg," id. ¶ 145(b). " Mr. Dilworth again informed Schramm of the torturous treatment he was suffering." Id. ¶ 145(c). Nevertheless, Dilworth " continued to be denied medical or mental health care for his severe injuries and emotional trauma." Id. ¶ 145(d).

On June 13, 2009, " Rogers, Wyatt, and Tejeda entered Mr. Dilworth's cell and demanded that he surrender the legal papers he received from the Pro Se Clerk." Id. ¶ 158(a). When Dilworth refused, Rogers " ordered Wyatt and Tejeda to conduct an illegal strip search of Mr. Dilworth." Id. ¶ 158(c). During this search, Dilworth was forced to " strip completely naked in full view of the entire housing area." Id. ¶ 158(d). Rogers then " taunted and mocked Mr. Dilworth because of his injuries and medical condition, including his impotence." Id. Rogers then ordered " Tejeda and Wyatt to destroy and/or confiscate all [of Dilworth's] personal belongings, including all papers regarding his federal lawsuit, a Bible, prayer books, and family pictures." Id. ¶ 158(f). " After reading Mr. Dilworth's legal papers Rogers

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stated ... ‘ Fuck the Pro Se Clerk. This is Westchester. Nigger World.’ " Id. ¶ 158(h). Tejeda and Rogers then inflicted severe pain on Dilworth by performing " an illegal hand technique" on him. Id. ¶¶ 158(i)-(k). Dilworth's legal papers and personal belongings were never returned. See id. ¶¶ 158( l )-(n). On June 15, 2009, Rogers ordered SanMarco and Wyatt to conduct an additional search of Dilworth's cell. Id. ¶¶ 159(a)-(b). During this search they confiscated Dilworth's " writing material, extra towels, sheets, and blankets which were approved by medical personnel." Id. ¶ 159(c). Following these initial searches, Dilworth's cell was searched " every week, about three times a week." Id. ¶ 160(a).

A second strip search was conducted at the end of June 2009. Id. ¶¶ 161(b)-(g). Again, Dilworth was forced to strip naked in full view of the housing area. Id. ¶ 161(c). During the course of the search Dilworth " informed Rogers that he was suffering severe pain in his back." Id. ¶ 161(e). " Rogers stated he didn't ‘ give a fuck.’ " Id. ¶ 161(f). Rogers asked Dilworth if he wanted to " waive his legal claims against Westchester County and other defendants." Id. ¶ 161(g). Rogers then ordered Tejeda to remove one of the mattresses that had been prescribed to Dilworth to treat Dilworth's injuries. See id. ¶¶ 161(h)-(j).

On August 11, 2009, the Dilworths " personally informed Spano of Mr. Dilworth's severe injuries[,] ... the torture he was suffering at the hands of Goldberg, Rogers, and others," and that correction officers were eavesdropping on their visits. Id. ¶¶ 162(a), (c). " Spano turned to Soychak and asked if their statements were true. Soychak affirmatively misrepresented that it was the first time he had heard about [the Dilworths'] complaints." Id. ¶¶ 162(d)-(e). However, nothing changed for Dilworth. See id. ¶ 162(f). Correction officers continued to make extortionary threats, see id. ¶ 162(g); Dilworth's mail was tempered with, see id. ¶ 163(a)(i); his cell was continuously searched and the searches increased in severity and frequency, see id. ¶¶ 163(a)(v), (d); his personal belongings and legal papers were confiscated, see id. ¶¶ 163(a)(vi); and he was still prevented from placing commissary orders because of inaccuracies in his financial account, see id. ¶ 163(a)(ii). Dilworth discussed these occurrences with Lantz, who in turn told Amicucci and Spano. See id. ¶¶ 163(a)-(b), (e).

On September 1, 2009, Dr. Goldberg told Dilworth that he would like to " serve as Mr. Dilworth's treating physician through his private practice upon Mr. Dilworth's release from the WCJ." Id. ¶ 164(d). At that time, Dr. Goldberg disclosed the following information to Dilworth: (1) the medication Dilworth was receiving in the WCJ for his back " was ‘ not doing anything’ for him" ; (2) Dilworth had a chipped bone in his elbow; (3) Goldberg could not discuss many aspects of Dilworth's health; (4) the shaking in Dilworth's hands was due to nerve damage and idleness and that it might subside with proper treatment; (5) Dilworth's impotence was caused by the slip and fall in the WCJ; (6) Dilworth " suffered a crack in his # 2 vertebrae and it was leaking fluid," and his " # 4 and # 5 vertebrae likely needed to be fused" ; (7) " [b]udgetary matters prevented [Dilworth] from receiving ‘ all the care he needed’ while in custody," and for " financial reasons," he would receive either a CT scan or an NMI, but not both; and (8) he needed a CT scan. Id. ¶¶ 164(e)-(n), (p). Dr. Goldberg later " refused to accept" Dilworth's evaluation of his level of pain as a ten on a scale of one to ten, " stating ‘ Come on. You gotta have soul, like James Brown.’ " Id. ¶ 175.

On September 11, 2009, Dilworth retained counsel, who provided him with a

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copy of an " engagement letter and other legal documents." Id. ¶ 168(a). After conferring with counsel, Dilworth was stopped by Watson and Tejeda. Id. ¶ 168(b)(i). They conducted a full body search of Dilworth. Id. They told Dilworth that they were doing the search because they had " received a call from a DOC employee in the ‘ main office.’ " Id. ¶ 168(b)(ii). " Spano's office is referred to as the main office.' " Id. ¶ 168(b)(iii). Following the search, Dilworth's legal documents were forwarded to Spano's office. Id. ¶ 168(d). On the way back to his cell, Dilworth was stopped by Garrett, who arbitrarily confined Dilworth to a holding cell, confiscated his crutches, and forced him to stand for 45 minutes. Id. ¶¶ 168(e)(i)-(iii). Garrett also denied Dilworth his pain medication. See id. ¶¶ 168(f)-(g), (m). When Dilworth asked to speak to a sergeant, " Garrett replied, ‘ Take your black ass and go lock in.’ " Id. ¶¶ 168(h)-(i).

Throughout the course of his stay in A-Block, Dilworth was subjected to various adverse actions. He was denied pain medication and haircuts, id. ¶¶ 168(m), 169(e), 170(a); he was arbitrarily confined to his cell, id. ¶¶ 165, 169(a), 169(c), 170(d), 171(a); visits with Patricia and his attorney were shortened by correction officers, id. ¶¶ 169(b), 169(d), 171(b); he received smaller portions of food as a result of Dr. Goldberg's arbitrarily assigning him " diet trays," see id. ¶ 173(a); and his crutches were confiscated numerous times, see id. ¶¶ 170(e), (i). His food was also tampered with, id. ¶ 173(b), and he was forced to stand without the aide of his crutches for periods of up thirty minutes, see id. ¶¶ 170(b), (g). Dilworth continuously attempted to file grievances, but they were either denied or ignored, see id. ¶¶ 172(a)-(c), 174(a), or Dilworth was prevented from obtaining the required forms, see id. ¶ 166. " When Mr. Dilworth asked [why] he was being treated so poorly[,] Santos replied he was following ‘ orders'...." Id. ¶ 169(f).

From December 16, 2008 through September 23, 2009, Dilworth " submitted at least ten sick call slips specifically seeking medical care for incontinence" and spoke to Dr. Goldberg on three separate occasions regarding his incontinence. Id. ¶¶ 178(a)-(b). On each occasion, " Goldberg made handwritten notes in Mr. Dilworth's file" regarding his incontinence and stamped the file. Id. ¶¶ 178(c)-(d).

" From December 22, 2008 through September 23, 2009 Rogers arbitrarily confiscated four Bibles, approximately six ‘ Daily Breads' (prayer books), and approximately six ‘ Daily Words' (prayer books) from Mr. Dilworth, denying him the ability to read same which is central to his faith.’ ' Id. ¶ 76. Dilworth's family pictures, personal diary, writing materials, legal materials, and other personal items were also taken. Id. ¶¶ 75(h), 116(a), 123, 160(a), 161(b). Rogers told Dilworth that the confiscated items were " ‘ contraband.’ " Id. ¶¶ 75(i), 116(a), 125(e). While Dilworth resided in J2 Dorm, " Foy repeatedly prevented Mr. Dilworth from attending Sunday church services." Id. ¶ 108. In addition, Rogers and other officers confiscated items that had been prescribed to Dilworth, such as crutches, extra mattresses, sneakers, and portable urinals. See id. ¶¶ 113(b), 114(c), 125(e), 129(a), 159(c), 161(h)-(j). Dr. Goldberg told Dilworth that he knew Rogers was confiscating items that he had prescribed, id. ¶ 161(j), and that he would talk to Rogers about the repeated confiscation of Dilworth's urinals and extra mattresses, but Rogers continued to confiscate these items, see id. ¶ 113(b). Dr. Goldberg knew Rogers was denying Dilworth the use of sneakers, but did not stop Rogers. See id. ¶¶ 164(a)-(b). Instead, Rogers directed James and Kadel to delete from the computer " an entry authorizing [Dilworth] the use of his sneakers." Id. ¶ 164(b).

From January 21, 2009 through September 2009, Rogers, Quinoy, and various unknown

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correction officers fabricated and submitted approximately 20 disciplinary charges against Dilworth. Id. ¶¶ 97(e)-(n), 98, 132(f), 142, 143(b). " The majority of the charges were dismissed by the hearing officer." Id. ¶ 98(b).

6. Release from the WCJ

On September 23, 2009, Dilworth was released from custody. Id. ¶ 176(f). While Dilworth was waiting to be transported to the Westchester County Courthouse, Rogers " threatened him with physical bodily harm, due in part to his race, stating[,] ‘ You[r] black ass better not come back.’ " Id. ¶¶ 176(a)-(b). Correction officers read and made copies of Dilworth's legal documents and " placed all of Mr. Dilworth's personal belongings and legal papers into plastic bags and contaminated them with personal hygiene products." Id. ¶¶ 176(d)-(e).

After Dilworth's release from prison, the Dilworths " attempted to resume natural marital relations, but were unable to do so because of Mr. Dilworth's impotence and physical injuries he suffered while detained in the WCJ." Id. ¶ 179. " On or about September 25, 2009, Mr. Dilworth was evaluated by the Westchester County Department of Social Services and found to be permanently, totally disabled due to the injuries he sustained while detained in the WCJ." Id. ¶ 180. Dilworth then sought medical care at WCHCC. Id. ¶ 181(a). The WCHCC medical staff " consulted with Goldberg regarding Mr. Dilworth's medical history," but Dr. Goldberg " affirmatively misrepresented to WCHCC medical personnel that Mr. Dilworth had ‘ no documentation of incontinence.’ " Id. ¶¶ 181(b)-(c).

After Dilworth filed the complaint in the instant action on March 15, 2010, " Westchester County began to conduct an investigation into the allegations contained in the complaint and interviewed various employees at the WCJ." Id. ¶¶ 182-83. On April 7, 2010, Bourhill hung on the front door of the Dilworths' home a " DOC prison uniform containing several writings and markings including the plaintiffs' last name, ‘ nigger,’ [and] ‘ we no [sic] wear [sic] you live so shut your mouth.’ " Id. ¶ 184 (brackets omitted). " Several weeks" later, and before Dilworth had incorporated a description of the incident into a pleading, Tejeda said to Dilworth, " I heard someone ...


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