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Rembert v. Cheverko

United States District Court, S.D. New York

July 10, 2014

PAUL REMBERT, Plaintiff,



On December 17, 2012, pro se plaintiff Paul Rembert commenced this action under 42 U.S.C. § 1983 for violations of his First, Eighth, and Fourteenth Amendment rights while he was incarcerated in the Westchester County Department of Corrections ("WCDOC").

The operative complaint, the Second Amended Complaint ("SAC"), [1] asserts § 1983 claims against two sets of defendants: (1) WCDOC, WCDOC Commissioner Kevin Cheverko, and WCDOC correction officers Ross Magnuson, Michael Randazzo, Joseph Delgado, Sergeant Luis Salterelli, and Captain John Gleason (collectively, the "WCDOC Defendants");[2] and (2) WCDOC medical provider Correct Care Solutions, LLC ("CCS"), and CCS employees Marcella King-Bogle and Michael Kelly (collectively, the "CCS Defendants").[3] (See SAC ¶¶ 4-11, 13-14.)

On January 17, 2014, the CCS Defendants moved to dismiss the SAC pursuant to Rule 12(b)(6); plaintiff opposed the motion on February 24, 2014, and the motion became fully briefed on March 6, 2014. (ECF Nos. 48-50, 72, 78.) Following service on the remaining WCDOC Defendants (see ECF Nos. 51, 54, 69, 71, 73-75, 79-83, 88), on April 16, 2014, the WCDOC Defendants also moved to dismiss the SAC pursuant to Rule 12(b)(6). (ECF No. 85-87.) Plaintiff opposed the motion on June 2, 2014, and the motion became fully briefed on June 23, 2014. (ECF Nos. 96, 99.)

For the reasons set forth below, the WCDOC Defendants' motion to dismiss is GRANTED and the CCS Defendants' motion to dismiss is GRANTED in part and DENIED in part.


A. February 2012 Incidents with Inmate Bridle

On February 27, 2012, plaintiff, then a WCDOC pre-trial detainee, alleges that he was working in the law library assisting inmates with legal research and the copying of forms. (See SAC ¶¶ 3, 23-24.) Plaintiff alleges that another inmate in the law library, Trevor Bridle, began to make copies in violation of posted signs restricting such activities. (Id. ¶ 25.) According to plaintiff, Bridle stated, "I'm making some damn copies on this machine and you had better not try to stop me because I'll beat your old ass." (Id.) Plaintiff alleges that Bridle was a "convicted violent sex offender there for violation of his parole." (Id.)

As Bridle began to make copies, plaintiff alleges that he left the law library to report Bridle's behavior to defendant Magnuson, and reported to Magnuson that he did not feel safe because Bridle was making threats toward him and operating the copy machine on his own. (Id.) Plaintiff alleges that Magnuson then entered the law library and spoke with Bridle, but took no further action. (Id.) According to plaintiff, no correction officers were in the law library either before Magnuson entered or after she left, though the library was monitored by video surveillance. (See id.; Rembert-WCDOC Opp. at 16, ECF No. 96.)

The next day, February 28, 2012, plaintiff alleges that he was again working in the law library when Bridle entered the room. (SAC ¶ 26.) Again, according to plaintiff, there were no correction officers in the library that day, although the library was monitored by video surveillance. (See id. 27-28; Rembert-WCDOC Opp. at 16.) Soon after Bridle entered the library, plaintiff alleges that Bridle engaged him in a heated verbal exchange in which Bridle threatened to break the copy machine and called plaintiff a "two-faced person and a rat." (SAC ¶ 26.) Plaintiff responded to Bridle: "are you talking to me?"; Bridle then got out of his seat and approached plaintiff. (Id.) Plaintiff also got out of his seat, but another inmate initially restrained Bridle. (Id.) After plaintiff and Bridle returned to their seats, Bridle again stood up and attacked plaintiff. (Id.) Plaintiff alleges that Bridle punched him in the head and eye, and that during the ensuing scuffle Bridle bit plaintiff and plaintiff felt a sharp pain in his left wrist when he fell to the floor. (Id.) Plaintiff alleges that Bridle punched plaintiff in the back of the head multiple times while he was on the floor, to the point where plaintiff became dizzy and nearly unconscious. (Id.)

After Bridle first punched plaintiff, plaintiff alleges that another inmate ran out of the library and told defendant Randazzo about the incident. (Id.) Plaintiff alleges that Randazzo eventually entered the law library and pulled Bridle off of plaintiff. (Id.) An emergency response team then arrived, placed plaintiff and Bridle in handcuffs, and took them to receive medical treatment. (Id.) At the clinic, plaintiff alleges that he told defendant King-Bogle, a CCS nurse, about the nature of his injuries-punches and bites-and that he had pain in his left wrist and shoulder. (Id. ¶ 28.) Plaintiff alleges that he received an injection in his shoulder for the bites, and bandages for the injuries to his eye and other lacerations. (Id.)

The same day, plaintiff completed a statement form describing the events of February 27 and 28, 2012. (Id. ¶ 30, Ex. D.) On the form, plaintiff indicated that he would like to "press charges" against Bridle. (Id. ¶ 30, Ex. D.) "Days later, "[4] plaintiff alleges that he filled out a grievance form regarding Magnuson's failure to protect plaintiff from Bridle, but "never received anything back on it." (Id. ¶ 17.) On March 2, 2012, plaintiff attempted to file a second grievance, "this time against the facility for placing Trevor Bridle... into population with other inmates who have lower security classifications." (Id. ¶ 18.) According to plaintiff, "a Sergeant" refused to accept and file the March 2 grievance "by saying that he don't accept grievances after the matter has been resolved, meaning that inmate Bridle was moved out of population the same day of the assault." (Id.)

B. Subsequent Medical Treatment

In the months that followed, plaintiff filled out multiple sick call slips and complained to CCS medical staff of ear, jaw, head, and wrist pain. (Id. ¶¶ 31-34.) At first, plaintiff alleges that he complained of headaches and wrist pain, but was told by CCS nurses that they could not give plaintiff any medicine for either ailment. (Id. ¶ 31.) During one visit to the clinic, plaintiff alleges that a CCS nurse, after examining plaintiff's ear and jaw, told him that there was nothing wrong with his ear and that he was "just a big baby." (Id. ¶ 32.) During another visit, plaintiff alleges he complained of blurry eyesight and bad headaches; plaintiff alleges that the CCS medical staff tested his eyesight and informed him that he needed glasses, but did not give him any medication. (Id. ¶ 33.)

Plaintiff alleges that his wrist also caused him significant pain during this time period. (See id. ¶¶ 34, 36.) During another visit to the clinic, plaintiff alleges that he showed a CCS nurse his wrist, which was swollen and immobile; the nurse then ordered an X-Ray "some time in the month of August [2012]." (Id. ¶ 34.) Plaintiff alleges that an X-Ray was subsequently taken of his wrist "[a]fter some time, " which showed a fracture. (Id. ¶ 35.) Plaintiff alleges that the CCS medical staff prescribed him Tylenol for the pain, and he was ordered to see an orthopedic specialist. (Id.) Subsequently, plaintiff alleges that CCS nurses changed his pain medication on three occasions during additional trips to the clinic; plaintiff alleges that some of these medications "did slightly ease the pain, " though he continued to have some difficulty sleeping. (Id. ¶¶ 36-38.)

On October 23, 2012, plaintiff alleges that he submitted a third grievance, this time "against the jail and medical staff for delaying to have plaintiff seen by the Orthopedic Specialist, " which plaintiff alleges he gave to defendant Salterelli. (Id. ¶¶ 19, 36, Ex. A.) Plaintiff alleges that, when Salterelli returned the grievance form to him, the second page of the form (which would have provided plaintiff with an opportunity to appeal the denial of his grievance) was missing. (Id. ¶ 19, Ex. A.)

In November 2012, plaintiff alleges that he saw an orthopedic specialist, who ordered surgery for plaintiff's wrist in plaintiffs presence. (Id. ¶ 36.) Despite that order, plaintiff alleges that defendant Kelly, CCS Director of Nursing, ordered one session of physical therapy. (See id. 14, 40, 51; Rembert-CCS Opp. at 5-6, ECF No. 72.) Plaintiff alleges that Kelly ordered physical therapy instead of surgery "to justify the delay of surgery" and "to avoid the cost of surgery... until plaintiff was transferred to a state prison." (SAC ¶¶ 40, 51.)

On December 17, 2012, [5] plaintiff filed his fourth grievance "against the jail and medical staff because of the delay of time it was taking to have the required surgery." (Id. ¶ 39, Ex. B.) The response to the grievance, dated December 19, 2012, states that an orthopedic specialist "recommended surgery but did not order it, " and that "the CCS Medical Director... generated an Outpatient Referral for the procedure." (Id. Ex. B at 2.) Plaintiff alleges that he did not receive this response to the grievance until Friday, December 28, 2012, and that the correction officer who returned it to him prevented him from appealing. (Id. ¶ 39.) Plaintiff alleges that this officer told him, in a "very intimidating manner, " that it was "not a good idea to appeal" and to "leave it alone because you're leaving soon." (Id.) On Monday, December 31, 2012, plaintiff was transferred from WCDOC to the New York State Department of Corrections, where he has since been incarcerated. (See id. ¶¶ 3, 39; ECF Nos. 8, 9.)

Plaintiff alleges that he has sustained permanent damage to his wrist, including the loss ...

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