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Iacovangelo v. Correctional Medical Care, Inc.

United States District Court, W.D. New York

October 2, 2014

FRANK B. IACOVANGELO, Public Administrator, Monroe County, as Administrator of the Estate of Marie Viera, Plaintiff,


CHARLES J. SIRAGUSA, District Judge.


This is an action under 42 U.S.C. ยง 1983 brought by the administrator of the estate of Maria Viera ("Viera"), who died while she was a pretrial detainee at the Monroe County Jail in Rochester, New York. Defendant Correctional Medical Care, Inc. ("CMC") had a contract with Monroe County to provide medial services at the jail. Generally, Plaintiff maintains that Viera was a drug-addicted inmate who obviously needed detoxication treatment, but was deliberately denied such treatment, and who died as a result. Now before the Court is Defendants' motion (Docket No. [#16]) to dismiss the Amended Complaint, and Plaintiff's cross-motion [#26] for an enlargement of time in which to serve three of the defendants, nunc pro tunc. Plaintiff's cross-motion is granted, but Defendants' application is also granted and this action is dismissed with prejudice.


Unless otherwise noted, the following facts are taken from the Amended Complaint in this action, including the attached exhibits.[1] The Court will briefly set forth the pertinent facts from the Amended Complaint, excluding the conclusory statements and legal conclusions of counsel.[2]

Tuesday, August 31, 2010

On August 31, 2010, at 5:28 p.m., Viera, age 53, was received at the Monroe County Jail, in connection with pending criminal charges. In the reception area of the jail, Viera told Deputy R.S., who is not a party, that she was "under the influence of drugs." Based upon what Viera said, R.S. completed a medical screening form, indicating that Viera had a history of drug and alcohol abuse and that she appeared to be under the influence of drugs. However, R.S. did not personally observe Viera exhibiting signs of intoxication or withdrawal, but rather, R.S. filled out the form based on what Viera told her.[3]

Approximately three hours later, Tamara Augello, R.N. ("Augello"), who was employed by defendant CMC, examined Viera and performed a medical screening. At that time Augello had the paperwork that was completed by R.S., and was therefore aware that R.S. had reported that Viera was under the influence of drugs. Augello was supposed to place Viera's name on a "detox flow sheet" so that she could be monitored, but failed to do so. Augello also failed to perform a check concerning any prescription medications that Viera might have needed, though there are no non-conclusory factual allegations that Viera actually needed prescription medication.[4] When Viera returned to the reception area of the jail, Deputy R.S. did not place her on "detoxification status, " due to the fact that Augello had not completed a "detox flow sheet." Nevertheless, the remainder of Viera's first night at the jail was apparently uneventful.

Wednesday, September 1, 2010

The following morning, at approximately 8:30 a.m., Viera was supposed to attend court for arraignment. However, Viera refused to attend court. In that regard, Viera did not refuse to attend because she was medically unable to do so, but rather, she indicated that she did not want to bother going to court, since she assumed that the arraignment judge would remand her to custody in any event. The judge arraigned Viera in her absence, remanded her to custody, and scheduled another appearance for the following day.

Ordinarily, following a detainee's arraignment, defendant Deputy Denise Cesarano ("Cesarano"), who worked in the jail's reception area, would receive "post-arraignment paperwork" that would include an indication as to whether the inmate needed further screening by medical staff. However, because Viera did not attend her court appearance, the court did not return Viera's paperwork to Cesarano, but instead, sent the paperwork to the jail's records staff. For this reason, apparently, Viera was not scheduled for a follow-up screening by medical staff.

At around this same time on the morning of September 1st, Cesarano had Viera change into jail-issued clothing, and she noticed that Viera's hygiene was poor. Viera also told Cesarano that she had been using heroin on a daily basis, and had spent the days prior to her arrest in a crack house. Consequently, at approximately 11:19 a.m., Cesarano changed Viera's status on the computer to "detoxification status, " based on Viera's statements and on the fact that she was aware of Viera's history of drug usage from past encounters with Viera at the jail. However, several hours later, at approximately 2:45 p.m., Cesarano removed Viera from the detoxification status list because she had not received any paperwork from the jail's medical department.[5]

Later that day, at approximately 5:30 p.m. Deputy R.S. observed that Viera ate her dinner. At around 6:45 p.m., another inmate requested to see a nurse, and R.S. summoned a nurse, defendant Maryanne McQueeney, R.N. ("McQueeney"), to the reception area, where Viera was also housed. As R.S. and McQueeney were walking to see the other inmate, they passed Viera's cell, and R.S. noticed that Viera was "bending over the toilet, " apparently due to nausea. R.S. asked Viera "if she wasl alright and [Viera] nodded in response."[6] Despite Viera's affirmative response, R.S. later indicated that she believed that Viera had been "exhibiting clinical signs warranting a nursing assessment, " although it is not alleged what those signs were, or if they merely consisted of her "bending over the toilet." Apparently, however, R.S. did not tell McQueeney that she thought McQueeney ought to examine Viera. In any event, Viera did not ask for assistance, and McQueeney did not examine her.[7]

Later that evening at approximately 10:00 p.m., defendant Deputy Peter DeCoste ("DeCoste") placed Viera back on a computerized list of inmates needing detoxification, although there is no allegation of fact as to why he did so.[8] The pleading suggests that nothing happened as a result of DeCoste placing Viera back on the detoxification list, since the jail's medical staff did not have access to the reception unit's computers at that time, and no one from the medical staff requested a printout of the detoxification list.

Thursday, September 2, 2010

At approximately 12:40 a.m., defendant Deputy Caroline McClellan ("McClellan") opened the door to Viera's cell to place another inmate into the cell. As McClellan did so, deputy C.S.[9] observed that Viera was awake and looked at the door, but did not say anything. McClellan observed that Viera did not appear to be in distress. Deputy Bobbie Jo Bishop ("Bishop"), who was escorting the other inmate being placed into Viera's cell, also observed that Viera, who was lying on her left side facing the wall, turned her head as the other inmate was being placed into the cell. Neither McClellan nor Bishop entered the cell at that time.

At approximately 2:10 a.m., Sergeant M.L., who is not a party, made rounds and reported observing nothing unusual.[10]

Throughout the night, McClellan and Bishop also conducted rounds every fifteen minutes. During those rounds, McClellan and Bishop observed that Viera continued to lie on her left side facing the wall, apparently asleep.[11]

At approximately 5:15 a.m., nurse R.W. came to the reception area for "detoxification rounds." At that time, apparently, R.W. entered Viera's cell and found that she was unresponsive. Bishop sounded a medical emergency while another deputy initiated CPR. Additionally, at 5:39 a.m., members of the Rochester City Fire Department arrived at the scene. However, it was determined that Viera had died during the night and had been dead for an unspecified "extended period." An investigation by the New York State Commission of Correction concluded that Viera died of Myocarditis, which is an "inflammation of the myocardium, " which is the "the middle muscular layer of the heart wall." Merriam Webster's Medical Dictionary (1993).[12]

On August 29, 2013, Plaintiff was appointed as administrator of Viera's estate by the Monroe County Surrogate's Court. On September 2, 2013, Plaintiff commenced this action on the last day of the three-year statute of limitations for actions under 42 U.S.C. ยง 1983.[13]

On December 31, 2013, Plaintiff filed the Amended Complaint [#9], which alleges that Defendants violated Viera's federal constitutional rights by acting with deliberate indifference to her serious medical needs. The pleading maintains that all of the individual defendants are liable in their individual capacities, and that Monroe County and CMC are subject to Monell liability. The Amended Complaint demands compensatory and punitive damages.

To briefly summarize, the Amended Complaint sets forth the facts described above, as taken from the Commission of Correction's fatality report, but then alleges that Defendants' actions were motivated by "bad faith and malice."[14] Essentially, the pleading maintains that Viera was so obviously in need of detoxification monitoring[15] that Defendants' failure to provide it must have been due to deliberate indifference to her serious medical needs.[16] The pleading further contends, "upon information and belief, "[17] that Defendants intentionally acted pursuant to a policy of providing sub-standard medical care to jail inmates, in order to save money.

After commencing the action, Plaintiff served all of the defendants except Augello, McQueeney and Maria Biuso ("Biuso"), CMC's supervisor at the Monroe County Jail. Eventually, on April 2, 2014, Plaintiff served Augello and McQueeney, and on April 11, 2014, Plaintiff served Biuso. In that regard, Plaintiff served Augello and McQueeney 212 days after commencing this action, and served Biuso 221 days after commencing the action.

On April 17, 2014, Defendants filed the subject motion to dismiss [#16] pursuant to FRCP 12(b)(6) and FRCP 4(m). The Rule 4(m) motion is brought on behalf of Augello, McQueeney and Biuso, and maintains that the action must be dismissed against them because Plaintiff failed to serve them within 120 days after the complaint was filed, without good reason. With regard to the 12(b)(6) motion, Defendants assert the following points about the Amended Complaint: 1) it fails to allege activity rising to the level of deliberate indifference, and pleads negligence at most; 2) it fails to plead that Sheriff Patrick O'Flynn ("O'Flynn"), Jail Superintendent Ron Harling ("Harling"), CMC's President Emre Umar ("Umar") or Biuso were personally involved in the alleged constitutional violation; and 3) it fails to plead municipal liability against Monroe County or CMC.

On May 27, 2014, Plaintiff filed a response [#25][18] to Defendants' motion, along with a cross-motion [#26] for leave to serve Augello, McQueeney and Biuso beyond the 120 limit allowed in Rule 4(m). With regard to the deliberate indifference claim, Plaintiff maintains that "drug and opiate withdrawal" is an objectively serious medical condition, and that Defendants acted with the requisite subjective intent, that was "the equivalent of criminal recklessness."[19] In that regard, Plaintiff contends that the instant case is similar to what happened in Livermore v. City of New York, No. 08 CV 4442 (NRB), 2011 WL 182052 (S.D.N.Y. Jan. 13, 2011), which the Court will discuss below. With regard to the Rule 4(m) application, Plaintiff contends that the Court should extend the time for service, nunc pro tunc, since he made a good faith effort to serve Augello, Biuso and McQueeney.

On June 17, 2014, Defendants filed papers further supporting their motion to dismiss and opposing Plaintiff's cross-motion. The Court has determined that oral argument is not necessary.


Defendants' Motion to Dismiss Pursuant to FRCP 4(m)

Augello, Biuso and McQueeney maintain that they are entitled to dismissal under Rule 4(m), and the law in that regard is clear:

Pursuant to Rule 4(m):

If a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the ...

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