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Vail v. The City of New York

United States District Court, S.D. New York

December 2, 2014

ANDREW VAIL, Plaintiff,

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[Copyrighted Material Omitted]

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Andrew Vail, Plaintiff, Pro se, New York, NY.

For City of New York, R.N. Phillips-Drake, and M.D. Sein Than, Defendants: Austa Starr Devlin, Esq., Gillian C. Thomas, Esq., Heidell, Pittoni, Murphy & Bach, LLP, Stamford, CT.

For City of New York, R.N. Phillips-Drake, and M.D. Sein Than, Defendants: Brendan James Alt, Esq., Heidell, Pittoni, Murphy & Bach, LLP, White Plains, NY.

For City of New York, Defendant: James William Magee, Esq., Heidell, Pittoni, Murphy & Bach, LLP, New York, NY.

For City of New York, R.N. Phillips-Drake, and M.D. Sein Than, Defendants: Laura Anne Delvecchio, Esq., Heidell, Pittoni, Murphy & Bach, LLP, New York, NY.

For City of New York, R.N. Phillips-Drake, and M.D. Sein Than, Defendants: Michael Finkelstein, Esq., New York City Law Department, Corporation Counsel, New York, NY.

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Plaintiff Andrew Vail, pro se, brought the instant Action in August 2012, and currently alleges three causes of action related to medical treatment he received while incarcerated under the care of the New York City Department of Corrections. Before the Court is Defendants' Motion for Judgment on the Pleadings. For the following reasons, the Court grants Defendants' Motion.


A. Factual Background

The events giving rise to this action occurred on September 2, 2010, while Plaintiff was incarcerated at the Anna M. Kross Center (" AMKC" ) at Rikers Island Prison Facility. ( See Second Am. Compl. (July 19, 2013) (" SAC" ) ¶ ¶ 3, 12-16 (Dkt. No. 45).) Defendants R.N. Otilia Phillips-Drakes

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(" Phillips-Drakes" ) and M.D. Sein Than (" Dr. Than" ) (collectively, the " Rikers Defendants" ) were, respectively, a " registered nurse" and a " medical doctor," each of whom was " employed by Corizon and contracted by [Defendant City of New York] to provide medical services at the Rikers Island Prison Facility." ( Id. ¶ ¶ 6-7.)[1] Plaintiff alleges in his Second Amended Complaint that, " on September 2, 2010[,] at approximately 6:00 P.M., [Plaintiff] was summoned to the Harts[] Island Clinic located within the [AMKC] to receive his medication, Tylenol No. 3 [with] codeine, which [had been] prescribed to him by Dr. Theodora Key-Njemanze, D.O. on August 25, 2010." ( Id. ¶ 15.)[2] Plaintiff " was under the professional care of [D]efendants Phillips-Drakes and [Dr.] Than" that evening, the former of whom was responsible for dispensing Plaintiff's medication. ( Id. ¶ ¶ 14, 16.) Plaintiff alleges that, before administering medication to Plaintiff, Phillips-Drakes " failed to verify [Plaintiff's] identification." ( Id. ¶ 16.) Thus, instead of administering prescription Tylenol, Phillips-Drakes administered " Librium, a powerful[,] fast-acting benzodiazepine," even though Plaintiff did not have a prescription for that medication. ( Id.) In response, Plaintiff " protested that the [administered] medication . . . was inconsistent in size, shape and color to [his] regularly prescribed medication." ( Id.) Nevertheless, he took the medication. ( Id.)

Shortly thereafter, Plaintiff " began to feel ill," prompting him to " complain[] to correctional staff." ( Id. ¶ 17.) Plaintiff alleges that he was " immediately seen by [D]efendant [Phillips-]Drakes, who, after taking [Plaintiff's] vital signs, discovered [that he] was suffering severe acute tachycardia and hypertension, as well as an abnormal E.K.G." ( Id.) " [Phillips-Drakes] then immediately notified . . . [Dr.] Than," who subsequently " examined [Plaintiff]." ( Id. ¶ ¶ 17-18.) Dr. Than then " consulted" another doctor, and " it was determined [that Plaintiff] was suffering acute cardiac abnormalities, and needed to be immediately rushed via emergency medical services to [a hospital] for emergency treatment and intervention." ( Id. ¶ 18.) An ambulance arrived less than an hour later and transported Plaintiff to the hospital. ( See id. ¶ 19; see also Pl.'s Mem. of Law in Opp'n to Defs.' Mot. To Dismiss (" Opp'n" ) (June 29, 2014) 1 (Dkt. No. 96) (noting Plaintiff was " immediately rushed via ambulance to [the hospital] for emergency treatment and care).) Plaintiff alleges that one of the emergency medical technicians (" EMTs" ), EMT Rosado, " notice[d] that . . . [Phillips-]Drakes and [Dr.] Than [had] erroneously medicate[d], treat[ed,] and advise[d] Plaintiff . . ., as they believed him to be another patient, Luis Vega," and notified them of their error. ( Id. ¶ ¶ 20-21.) Plaintiff also alleges that he " was escorted by two . . . correctional officers . . . who told [him] not to tell anybody about the incident," ( id. ¶ 20), and that the Rikers Defendants thereafter " participate[d] in a cover-up in order to protect themselves from possible legal,

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professional, and/or other ramifications," ( id. ¶ 21). Plaintiff does not allege what happened at the hospital that night, but he does allege that the Rikers Defendants' mistake caused Plaintiff to " suffer[] and continue[] to suffer from extreme physical pain and mental anguish, including but not limited to hypertension, current and ongoing palpitations, tachycardia, left ventricular hypertrophy, heightened anxiety, depression[,] and insomnia among other ailments and conditions, some of which are persistent and may be deemed permanent." ( Id. ¶ 31.)

B. Procedural History

Before he filed the instant Action, Plaintiff filed a similar lawsuit in New York Supreme Court against Defendant City of New York on December 7, 2011, alleging a medical-malpractice claim based on essentially the same facts. ( Id. ¶ 8-9; see also id. Ex. A (state court opinion).) On November 20, 2012, the Supreme Court dismissed Plaintiff's lawsuit on the grounds that Plaintiff failed to file a timely notice of claim, which is a " condition precedent" to the commencement of an action against a municipality such as the City of New York. N.Y. Gen. Mun. Law § 50-e(1)(a). ( See also SAC Ex. A (state court opinion) at 2, 6.)

Plaintiff then filed the instant Action on August 6, 2012, alleging two causes of action--one apparently under 42 U.S.C. § 1983, claiming that the Rikers Defendants acted with deliberate indifference towards Plaintiff's health, and the other under state law, alleging that Defendant City of New York breached a " duty to protect" Plaintiff by failing to supervise and/or screen the Rikers Defendants and by failing to resolve and/or investigate the incident. ( See Compl. (Dkt. No. 2).) Then, in a letter dated April 18, 2013, sent after he had served all three Defendants, Plaintiff requested leave to file an amended complaint on the grounds that he had " come across material and facts which would significantly clarify the original complaint." (Letter from Pl. to Court (April 24, 2013) (Dkt. No. 25).) The Court granted that request on April 23, 2013. ( See id.) Plaintiff filed his Amended Complaint on May 22, 2013, alleging essentially the same two claims against the same three Defendants. ( See First Am. Verified Compl. (Dkt. No. 27).)

On July 3, 2013, less than two months later, and after Defendants had filed Answers to the Amended Complaint, Plaintiff sought leave to file a second amended complaint, averring that he had " failed to state supplemental jurisdiction over [his] state law tort claims" and that he " wishe[d] to clarify [a paragraph] of his Amended Complaint to strike the inadvertent deliberate indifference wording in his medical malpractice cause of action." ( See Mot. for Leave To File a Second Am. Compl. (July 24, 2013) ¶ ¶ 1-2 (Dkt. No. 46).) Plaintiff also wished to add a supplemental state claim. ( See Aff. in Supp. of Mot. for Leave To File a Second Am. Compl. ¶ 2 (July 24, 2013) (Dkt. No. 46).) On July 23, 2013, the Court granted Plaintiff's request, and it accepted for filing the proposed Second Amended Complaint that Plaintiff had attached to his Motion for Leave To Amend. ( See Dkt. No. 46 (granting Plaintiff's Motion); SAC.) That Complaint, which is the operative Complaint for the purposes of Defendants' Motion, includes three causes of action--one under § 1983, alleging that the Rikers Defendants acted with deliberate indifference to Plaintiff's serious medical need, and two under state law, alleging that the Rikers Defendants committed medical malpractice when they treated Plaintiff on September 2, 2010, and that Defendant City of New York is liable for those Defendants' actions under a theory of respondeat superior liability. ( See SAC ¶ ¶ 22-33.)

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Prior to granting Plaintiff leave to file his Second Amended Complaint, on July 9, 2013, the Court held a conference at which the Court adopted a discovery schedule and entered an order referring the case to Magistrate Judge Paul E. Davison for general pretrial purposes. ( See Dkt. No. 42 (Order of Reference); Dkt. No. 55 (Case Management & Scheduling Order); Dkt. (minute entry for July 9, 2013).) After a conference held on August 8, 2013, Magistrate Judge Davison issued two orders authorizing the release of certain medical records to Plaintiff. ( See Dkt. Nos. 57, 59.) He also issued an order denying Plaintiff's July 29, 2013 request for the appointment of pro bono counsel, finding that he " [could not] presently ascertain whether or not [P]laintiff's claims [met] the threshold merit requirement," and that, to date, Plaintiff had " shown an ability to effectively prosecute his case." ( See Dkt. No. 58, at 2; see also Mot. for Appointment of Counsel (Dkt. No. 48).)[3] Subsequently, Magistrate Judge Davison held another conference on September 23, 2013, at which he denied as premature Plaintiff's September 3, 2013 Motion for an order compelling discovery. ( See Dkt. (minute entry for Sept. 23, 2013); Mot. for an Order Compelling Disc. (Dkt. No. 60).) At that conference, Magistrate Judge Davison also scheduled a settlement conference for October 17, 2013. ( See Dkt. (minute entry for Sept. 23, 2013).) However, approximately one week before the conference, Defendants' counsel informed Magistrate Judge Davison that Defendants " [were] no longer interested in participating in a settlement conference at [that] time," but instead wished to request a premotion conference from this Court. ( See Dkt. No. 64 (Letter from Laura A. Del Vecchio, Esq., to Magistrate Judge Davison (Oct. 10, 2013)).) Magistrate Judge Davison granted that request and stayed discovery pending the outcome of Defendants' request. ( See Dkt. No. 64 (memorandum from Magistrate Judge Davison, dated Oct. 15, 2013).)[4]

Defendants thereafter submitted a request for a pre-motion conference in a letter dated October 18, 2013, and the Court granted that request three days later. ( See Letter from Laura A. Del Vecchio, Esq., to Court (Oct. 18, 2013) (Dkt. No. 67).) At the conference, held on December 18, 2013, and attended by Plaintiff via telephone, the Court adopted a scheduling order whereby Defendants would file their motion no later than February 15, 2014; Plaintiff would file his response no later than March 15, 2014; and Defendants would file their reply no later than March 29, 2014. ( See Dkt. No. 71 (Scheduling Order); Dkt. (minute entry for Dec. 18, ...

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