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Elminio Ortiz v. the City of New York

December 12, 2012


The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1


Before the Court is a motion to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCP"). Elminio Ortiz ("Plaintiff") seeks to recover compensatory and punitive damages against numerous institutional and individual defendants; all of whom, Plaintiff alleges, played a role in Plaintiff's mistreatment while in the custody of the New York City Department of Corrections and other related institutions. Plaintiff brings suit pursuant to 42 U.S.C. §§ 1983, 1985 and 1986, as well as Title II of the Americans with Disabilities Act ("ADA"), 29 U.S.C. § 12131 et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. § 794. In addition to these federal causes of action, Plaintiff asserts state tort claims for negligent medical care; negligent hiring, training, supervision, and retention; premises liability; intentional infliction of emotional distress; and conversion. For the following reasons, the defendants' motion to dismiss is GRANTED in part and DENIED in part.


Plaintiff brings suit against numerous municipal and individual defendants. In all, Plaintiff is suing: The City of New York; the New York City Department of Health and Mental Hygiene ("DOHMH"); the New York City Health and Hospitals Corporation ("NYHHC"); the Bellevue Hospital Center; the New York City Department of Correction ("NYDOC"); the Manhattan Detention Center; the North Infirmary Command/Annex at Rikers Island; and the agents, servants and/or employees of these institutions, including but not limited to; medical personnel, such as the Medical Director (unnamed), Dolores Curbelo, M.D., physicians, nurses, therapists, other medical staff, and John Does 1 -- 10; and NYDOC personnel such as the Warden (unnamed), grievance committee members, Corrections Officer ("CO") "John" Howell, CO "John" Harris, Captain "Jane" Nicholas, Captain "John" Thomas, John Does 11--20.

For two periods of time between September 2007 and September 2009, Plaintiff was under the defendants' "control and care." Compl. ¶ 71--72. From September 2007 to February 25, 2009, Plaintiff was held at Rikers as a pre-trial detainee. Id. Plaintiff returned to the defendants' custody for approximately one month beginning on September 13, 2009; Plaintiff had been transferred on a temporary basis from the New York State Department of Correction and Community Supervision.*fn2 Id. While in the defendants' custody, Plaintiff spent the majority of his time housed in Dorm 3 of the Northern Infirmary Command/Annex at Rikers Island. Id. ¶ 73. The North Infirmary Command/Annex is a facility for inmates that "require medical services . . . or other assistance with their daily living." Id. Plaintiff also alleges that he spent time in the Manhattan Detention Center and the George Motchan Detention Center at Rikers Island. Id.

Plaintiff is an above-the-knee amputee and, in order to ambulate, requires the assistance of a prosthetic leg or wheelchair. Compl. ¶ 71--72. Shortly after he began his first stretch of time in the defendants' custody in September 2007, Plaintiff began to complain to NYDOC personnel about the condition of his prosthetic leg. Plaintiff alleges he experienced pain, discomfort, and impaired mobility from the "exposed metal and bolts" on the prosthesis where it attached to his leg. Id. ¶ 74. On three separate occasions, Plaintiff consulted with doctors regarding the condition of his prosthetic leg. Plaintiff does not name the doctors with whom he consulted as individual defendants in this action. On October 15, 2007, Plaintiff saw Dr. Michael Wieder, M.D., a DOHMH employee. Id. ¶ 75. Plaintiff alleges that Dr. Wieder diagnosed an infection at the point where the prosthesis came in contact with Plaintiff's leg and "directed . . . the prosthetic [sic] be repaired." Id. The defendants did not act upon Dr. Wieder's order and did not repair the prosthesis. Id. ¶ 76. On November 19, 2007, Plaintiff saw Dr. Joseph Thomas, M.D., another DOHMH employee. Id. ¶ 77. Plaintiff avers that Dr. Thomas stated that the prosthesis was unsalvageable and directed that it be replaced. Id. Like with Dr. Wieder's order, the defendants failed to act upon Dr. Thomas's order and replace the prosthetic leg. Id. ¶ 78. Sometime in January, 2008, Plaintiff was transported to Bellevue Hospital where he saw Dr. Jeffery Van Gelderen, M.D. Id. ¶ 79. Dr. Van Gelderen concurred with Dr. Thomas's assessment and directed the prosthesis be replaced. Id. Dr. Van Gelderen further provided Plaintiff with a wheelchair and authorized Plaintiff to use the wheelchair until the prosthetic leg was replaced.

Id. No action was taken pursuant to Dr. Van Gelderen's order until some six months later on April 22, 2008, when Plaintiff was measured and fitted for a new prosthesis. Id. ¶ 82. Despite the fitting session, Plaintiff never received the new prosthesis and instead continued to rely upon his deteriorated prosthesis and the wheelchair. Id. ¶ 83. Throughout this time, Plaintiff claims that he repeatedly complained of his condition, including voicing grievances to Dr. Dolores Curbelo, M.D., the medical director of NYDOC facilities. Id. ¶ 74.

On August 13, 2008, NYDOC staff, including CO "John" Harris, Captain "Jane" Nicholas, Captain "John" Thomas, and John Does 11--20, seized Plaintiff's wheelchair. Id. ¶ 84. The seizure of the wheelchair left Plaintiff only with the use of his tattered prosthesis. Id. The next day, Plaintiff fell and sustained injury to his shoulder, wrist, and back as he attempted to shower on one leg. Id. ¶ 86. Plaintiff alleges that the shower lacked hand rails, grab bars, rubber mats, or "any other means of assistance for disabled inmates . . . ." Id. Whether Plaintiff had previously showered with the assistance of his prosthesis or in his wheelchair is not disclosed in the complaint.

On January 22, 2009, NYDOC staff, including CO "John" Howell and Correction Defendant John Does 11--20 conducted a search of Plaintiff's cell. Id. ¶ 87. During the search, these defendants inspected the prosthetic leg and removed its synthetic and foam cover, thereby "rendering it unusable." Id.

It was only after Plaintiff transferred out of NYDOC custody on February 25, 2009, some ten months later after being fitted for a new prosthesis, that his treatment improved. Id. ¶ 90. On September 13, 2009, Plaintiff was transferred on a temporary basis back into NYDOC custody. Before being admitted back into the defendant's facilities, Plaintiff underwent a physical examination. Id. ¶ 93. During this evaluation, the NYDOC confiscated the treaded shoes Plaintiff received while in state custody and replaced them with NYDOC's standard-issue, non-treaded shoes. Id. Soon thereafter, on September 23, 2009, Plaintiff slipped between two beds on "sloped flooring and/or a broken tile" in Dorm 3 of the North Infirmary Command/Annex at Rikers Island and sustained injuries. Id. ¶ 95. Plaintiff asserts that the lack of traction in his new shoes caused him to slip and fall. Id. ¶ 97.

The present action is Plaintiff's second attempt at recovery. Plaintiff first brought a near-identical set of claims in the Eastern District before Judge Sterling Johnson in November, 2009. In March, 2012, that Court dismissed Plaintiff's claims, neither with nor without prejudice, pursuant to FRCP 12(b)(3). Ortiz v. City of New York, No. 09-CV-4215 (E.D.N.Y. Mar. 30, 2012), ECF No. 32. The Court noted that Rikers Island is part of Bronx County and therefore falls within the Southern District's jurisdiction pursuant to 28 U.S.C. § 1391. Id. Plaintiff moved to transfer his case to the Southern District on the same day Judge Johnson dismissed the case. Judge Johnson later denied Plaintiff's motion for transfer. Ortiz v. City of New York, No 09-CV-4215 (E.D.N.Y. Apr. 4, 2012), ECF No. 33.


I.Legal Standard

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). The requirement that the court accept all factual allegations as true does not apply to "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Id. The court's determination of whether a complaint states a "plausible claim for relief" is a "context-specific task" that requires application of "judicial experience and common sense." Id. at 679.

The defendants' grounds for dismissal are fairly straightforward. The gist of their argument is that the conduct giving rise to Plaintiff's constitutional claims occurred outside of the relevant statutes of limitations, and thus Plaintiff's federal causes of action are time-barred. In the alternative, the defendants argue that Plaintiff's federal claims are insufficiently pled. If either argument held true, they argue, this Court must dismiss the federal claims and should decline to exercise supplemental jurisdiction over the remaining state claims. In the event that this Court does not dismiss Plaintiff's federal claims, the defendants ask this Court to nonetheless exercise its discretion and decline to hear Plaintiff's state tort claims. The defendants, however, do not challenge the pleadings or merits of the pendant state claims.

II.Section 1983 Claims

Plaintiff raises several § 1983 claims and asserts that, while under their custody, various combinations of the named defendants, his First, Fourth, Eighth, and Fourteenth Amendment rights were violated.*fn3 The statute provides a private cause of action against state actors that deprive one of his rights afforded by federal law and the Constitution. See 42 U.S.C. § 1983. "To state a claim under Section 1983, a plaintiff must show: '(1) actions taken under color of law; (2) deprivation of a constitutional or statutory right; (3) causation, [and]; (4) damages.'" Rahman v. Fisher, 607 F. Supp. 2d 580, 584 (S.D.N.Y. 2009) (quoting Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008)). "A defendant's conduct must be a proximate cause of the claimed violation in order to find that the defendant deprived the plaintiff of his rights." Id. (citing Martinez v. California, 444 U.S. 227, 285 (1980)).

As a threshold matter, I reject Defendants' argument that Plaintiff's § 1983 claims are time-barred. The defendants assert that the majority of the alleged conduct giving rise to Plaintiff's § 1983 claims fall outside of the statute of limitations. Any conduct that occurred while Plaintiff was temporarily held by NYDOC in September 2009, the defendants argue, is insufficient to sustain any claims. Plaintiff entered into NYDOC custody in September 2007 and filed his first complaint in the Eastern District on October 10, ...

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