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Hall v. Nys Dep't of Corr. and Cmty. Superv.

United States District Court, N.D. New York

March 3, 2015

NICOLE HALL, as Admin. of the Estate of Amir Hall, Plaintiff,
v.
NYS DEP'T OF CORR. AND CMTY. SUPERV.; N.Y.S. OFFICE OF MENTAL HEALTH; BRIAN FISCHER, Comm'r of N.Y.S. DOCCS; DR. MICHAEL F. HOGAN, Comm'r of N.Y.S. OMH; DANIEL J. KANE, Sgt., Mid-State C.F.; JOHN P. DISCHIAVO, Lt., Mid-State C.F.; DAVID A. BUCKBEE, Corr. Officer, Mid-State C.F.; ROY JOHNSON, Corr. Officer, Mid-State C.F.; PAUL E. LASHWAY, Corr. Officer, Mid-State C.F.; ROBERT T. EVANS, Corr. Officer, Mid-State C.F.; MICHAEL P. HUSNAY, Corr. Officer, Mid-State C.F.; JAMES R. TEDESCO, Corr. Officer, Mid-State C.F.; JOSEPH P. NORWICH, Corr. Officer, Mid-State C.F.; CHARLES KELLY, Superint., Great Meadow C.F.; WILLIAM F. HULIHAN, Superint., Mid-State C.F.; LEWIS RICHARD DAVIS, Soc. Worker, OMH; LYUBOV SAVITSKIY, Nurse, Mid-State C.F.; ZOE KINGSLEY, Nurse, Great Meadow C.F.; J. KILBURN, Sgt., Great Meadow C.F.; DR. SARAH NELSON, Psychiatrist, OMH; YOLANDA PERONI, Soc. Worker, OMH; MARILYN STEMEN, Nurse Practitioner, OMH; NICOLE HUNTER, Soc. Worker, OMH; KELLY DEHIMER, Nurse Supervisor, OMH; JULIE HUTCHINSON, Nurse, OMH; DOWNSTATE C.F. JANE AND JOHN DOES #1-10; DR. ROBERT BAKALL, Physician, OMH; SHANNAN SULLIVAN, Psychology Assist., OMH; DR. LAWRENCE FARAGO, Physician, OMH; JILL PORTER, Licensed Master Soc. Worker, OMH; KAREN TORTELET, Psychiatric Nurse Practitioner, OMH; LORI CUNNINGHAM, Licensed Master Soc. Worker, OMH; MID-STATE C.F. MED. STAFF JANE AND JOHN DOES #1-10; DeRIDER, Lt., Mid-State C.F.; DUBERNECKI, Lt., Mid-State C.F.; D.S.S. WARD, Hearing Officer, Mid-State C.F.; CHRISTOPHER J. HOLMER, Capt., Mid-State C.F.; MID-STATE C.F. JANE AND JOHN DOES #1-10; DR. DANIELLE DILL-LEWIS, Physician, OMH; GREAT MEADOW C.F. JANE AND JOHN DOES #1-10, Defendants.

STROOCK & STROOCK & LAVAN LLP JAMES L. BERNARD, ESQ., PATRICK N. PETROCELLI, ESQ., New York, NY, Counsel for Plaintiff.

HON. ERIC T. SCHNEIDERMAN, TIMOTHY P. MULVEY, ESQ., Assistant Attorney General, Syracuse, NY, Counsel for All Defendants Except Lewis Richard Davis and Zoe Kingsley.

LaMARCHE SAFRANKO LAW PLLC GEORGE E. LaMARCHE, ESQ., MARC R. PALLOZZI, ESQ., Clifton Park, NY, Counsel for Defendant Lewis Richard Davis.

LAW OFFICE OF ROBERT M. WINN ROBERT M. WINN, ESQ., Granville, NY, Counsel for Defendant Zoe Kingsley.

DECISION & ORDER

GLENN T. SUDDABY, District Judge.

Currently before the Court, in his prisoner civil rights action filed by Nicole Hall as the Administratrix of the Estate of Amir Hall ("Plaintiff") against the 76 above-captioned New York State employees and agencies, are the following five motions: (1) a motion to dismiss the Third and Fourth Claims of Plaintiff's Amended Complaint for failure to state a claim upon which relief can be granted, filed by all individually named Defendants except Lewis Richard Davis and Zoe Kingsley ("the AG Defendants"); (2) Defendant Kingsley's motion for summary judgment; (3) Defendant Davis' motion for summary judgment; (4) Plaintiff's motion in limine to partially exclude the expert testimony relied on by AG Defendants in their motion for partial summary judgment; and (5) the AG Defendants' motion for partial summary judgment. (Dkt. Nos. 85, 130, 132, 134, 146.) For the reasons set forth below, the AG Defendants' motion to dismiss is granted; Defendant Kingsley's motion for summary judgment is granted; Defendant Davis' motion for summary judgment is granted; Plaintiff's motion in limine is granted; and the AG Defendants' motion for partial summary judgment is granted in part and denied in part.

TABLE OF CONTENTS

I. PLAINTIFF'S CLAIMS 5 II. LEGAL STANDARDS GOVERNING DEFENDANTS' MOTIONS 8 A. Motion for Judgment on the Pleadings 8 B. Motion for Summary Judgment 10 III. ANALYSIS 10 A. The AG Defendants' Motion to Dismiss for Failure to State a Claim 10 1. Parties' Briefing on the AG Defendants' Motion to Dismiss 10 2. Ruling on the AG Defendants' Motion to Dismiss 13 B. Defendant Kingsley's Motion for Summary Judgment 19 1. Parties' Briefing on Defendant Kingsley's Motion 19 2. Ruling on Defendant Kingsley's Motion 21 C. Defendant Davis' Motion for Summary Judgment 27 1. Parties' Briefing on Defendant Davis' Motion 27 2. Ruling on Defendant Davis' Motion 30 D. Plaintiff's Motion in Limine to Partially Exclude the Expert Testimony Relied on by the AG Defendants in Their Motion for Partial Summary Judgment 38 1. Parties' Briefing on Plaintiff's Motion in Limine 38 2. Ruling on Plaintiff's Motion in Limine 39 E. The AG Defendants' Motion for Partial Summary Judgment 40 1. Parties' Briefing on the AG Defendants' Motion for Partial Summary Judgment 40 2. Ruling on the AG Defendants' Motion for Partial Summary Judgment 42 a. The AG Defendants' First Argument 42 i. Nelson 42 ii. Peroni 42 iii. Hunter 44 iv. Hutchinson and Dehimer 44 v. Stemen 45 vi. Sullivan 46 vii. Bakall 48 viii. Cunningham 49 ix. Porter, Tourtelot and Farago 51 x. DeRider, Wiernicki, Holmer and Ward 56 xi. Extraction Team 60 xii. Kilburn 63 xiii. John and Jane Does 65 b. The AG Defendants' Second Argument 65 c. The AG Defendants' Third Argument 68 d. The AG Defendants' Fourth Argument 68

I. PLAINTIFF'S CLAIMS

Generally, Plaintiff's Amended Complaint alleges that, between August 31, 2009, and June 20, 2010, Defendants were deliberately indifferent to Amir Hall's serious medical needs, discriminated against him based on his mental illness, and neglected their duties while he was a patient of the CNY Psychiatric Center in the New York State Office of Mental Health ("OMH"), and was in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), resulting in his suicide on June 20, 2012. (Dkt. No. 38 [Plf.'s Am. Compl.].)

More specifically, the Amended Complaint alleges that, during this period, Amir received a series of diagnoses and transfers: (1) a transfer from the Albany County Jail to the CNY Psychiatric Center on August 31, 2009, so that he could receive mental health treatment; (2) a transfer from the CNY Psychiatric Center to Downstate Correctional Facility ("C.F.") on November 3, 2009, with a diagnosis of Major Depressive Disorder and a recommendation that he participate in a Transitional Intermediate Care Program ("TrICP"); (3) a transfer from Downstate C.F. to Mid-State C.F. on December 10, 2009, with a diagnosis first of Polysubstance Dependence and Borderline Personality Disorder (bearing a Mental Health Service Level or "MHSL" of 1), then of Adjustment Disorder, Alcohol Dependence, Cannabis Dependence, and Personality Disorder Not Otherwise Specified (also bearing a MHSL of 1), and an intent that he participate in a Sex Offender Treatment Program ("SOTP") and Aggression Replacement Training Program ("ARTP") there; (4) a transfer from Mid-State C.F.'s general population to its Residential Crisis Treatment Program ("RCTP") on January 2, 2010, so that his suicidal ideation could be treated; (5) a transfer from the RCTP back to Mid-State C.F.'s general population at some subsequent point in January 2010; (6) a transfer from Mid-State C.F.'s general population to its Special Housing Unit ("SHU") on February 17, 2010, where he served successive disciplinary sentences over the next four months (i.e., 21 days starting on February 17, 2010, 30 days starting on March 12, 2010, 43 days starting on April 20, 2010, and seven months starting on June 9, 2010), with his diagnosis changed on April 8, 2010, to Polysubstance Dependence and Borderline Personality Disorder (bearing a MHSL of 1), and downgraded on June 4, 2010, to MHSL 2, due to a purported lack of symptoms supporting a major mental health diagnosis; and (7) a transfer from Mid-State C.F.'s SHU to Great Meadow C.F.'s SHU on June 18, 2010, to complete the seven-month SHU sentence. ( Id. )

Generally, based on these factual allegations, Plaintiff's Amended Complaint asserts the following ten claims against Defendants: (1) a claim of deliberate indifference to Amir's serious medical needs under the Eighth Amendment, asserted against approximately 49 doctors, nurses, social workers, and correctional employees;[1] (2) a claim of deliberate indifference to his serious medical needs under the Eighth Amendment, asserted against four supervisory officials;[2] (3) a claim of violation of Title II of the Americans with Disabilities Act of 1990 ("ADA"), asserted against approximately 49 agencies, doctors, nurses, social workers, and correctional employees;[3] (4) a claim of violation of Section 504 of the Rehabilitation Act of 1973 ("the Rehabilitation Act"), also asserted against approximately 49 agencies, doctors, nurses, social workers, and correctional employees;[4] (5) a claim of negligence under New York State common law, asserted against approximately 25 doctors, nurses and social workers;[5] (6) a claim of ministerial neglect under New York State common law, asserted against approximately 22 doctors, nurses and social workers;[6] (7) a claim of medical malpractice under New York State common law, asserted against approximately 23 doctors, nurses and social workers;[7] (8) a claim of wrongful death under New York State common law, asserted against approximately 25 doctors, nurses and social workers;[8] (9) a claim of violation of the New York State Constitution, asserted against 14 doctors, nurses and social workers;[9] and (10) a claim of violation of the New York State Constitution, asserted against four supervisory officials.[10] ( Id. )

II. LEGAL STANDARDS GOVERNING DEFENDANTS' MOTIONS

A. Motion for Judgment on the Pleadings

Although the AG Defendants' label their motion as one to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), it is actually one for judgment on the pleadings under Fed.R.Civ.P. 12(c) because an Answer had already been filed by them. (Dkt. No. 62.) In any event, the legal standards governing the motions are the same. See Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001) ("The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that of a Rule 12(b)(6) motion for failure to state a claim.") (collecting cases). As a result, for the sake of consistency, the Court will refer to the AG Defendants' motion for judgment on the pleadings as a "motion to dismiss."

Because this Decision and Order is intended primarily for the review of the parties, and counsel have demonstrated (in their memoranda of law) an adequate understanding of the wellknown legal standard governing a motion to dismiss for failure to state a claim, the Court will not recite that legal standard in its totality in this Decision and Order, but will merely direct the reader to the Court's decision in F.M. ex rel. Ms. M. v. Anderson Center for Autism, 13-CV-0041, 2014 WL 4457256, at *7-9 (N.D.N.Y. Sept. 10, 2014) (Suddaby, J.), which accurately recites that legal standard.

In addition, the Court will briefly recite the standard governing what documents are considered when a dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal pursuant to Fed.R.Civ.P. 12(b)(6) or Fed.R.Civ.P. 12(c), the following matters outside the four corners of the complaint may be considered without triggering the standard governing a motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer, (2) documents incorporated by reference in the complaint (and provided by the parties), (3) documents that, although not incorporated by reference, are "integral" to the complaint, or (4) any matter of which the court can take judicial notice for the factual background of the case.[11]

B. Motion for Summary Judgment

Again, because this Decision and Order is intended primarily for the review of the parties, and counsel have demonstrated (in their memoranda of law) an adequate understanding of the well-known legal standard governing a motion for summary judgment, the Court will not recite that legal standard in its totality in this Decision and Order, but will merely direct the reader to the Court's decision in Lenigan v. Syracuse Hancock Int'l Airport, 10-CV-1420, 2013 WL 149461, at *4-5 (N.D.N.Y. Jan. 14, 2013) (Suddaby, J.), which accurately recites that legal standard.

III. ANALYSIS

A. The AG Defendants' Motion to Dismiss for Failure to State a Claim

1. Parties' Briefing on the AG Defendants' Motion to Dismiss

Generally, in their motion to dismiss the Third and Fourth Claims of Plaintiff's Amended Complaint for failure to state a claim (i.e., her claims arising under the ADA and the Rehabilitation Act), the AG Defendants argue as follows: (1) the legal standards governing Plaintiff's claims under the ADA and the Rehabilitation Act are the same; (2) under the legal standard that governs both of those claims, Plaintiff's Amended Complaint fails to allege facts plausibly suggesting the third element of such claims (i.e., that Amir was denied the opportunity to participate in, or benefit from, the AG Defendants' services, programs, or activities, or was otherwise discriminated against by the AG Defendants, by reason of his disability), because, while Plaintiff's allegations challenge the adequacy of the mental health treatment that Amir received, they do not allege facts plausibly suggesting any discriminatory conduct based on his disability (most notably, that he was treated any differently than were inmates who are not mentally disabled); and (3) at the very least, to the extent that Plaintiff asserts a claim for money damages against any state officials in their official capacities under either the ADA or Rehabilitation Act (for example, as expressly stated in Paragraphs 203 and 216 of the Amended Complaint), those claims are barred by the doctrine of sovereign immunity. (Dkt. No. 85, Attach. 1.)

Generally, in response, Plaintiff argues as follows: (1) although Plaintiff expressly bases both of her discrimination claims on each of the three separate theories on which she can do soi.e., disparate treatment, disparate impact, and failure to make reasonable accommodation-the AG Defendants have focused on only the first of those three theories, neglecting to address the other two; (2) as an initial matter, the AG Defendants' argument regarding Plaintiff's reliance on the disparate-treatment theory should be rejected because she has sufficiently alleged discrimination because of Amir's disability (for example, in Paragraphs 69, 79 and 108 of the Amended Complaint); (3) in any event, Plaintiff's discrimination claims survive under a disparate-impact theory because she has sufficiently alleged that DOCCS has a facially neutral policy of using solitary confinement in a punitive manner to punish misbehavior, and a practice of not offering certain programs to inmates who are receiving inpatient psychiatric services (as alleged in Paragraphs 164 to 172 of the Amended Complaint); (4) in any event, Plaintiff's discrimination claims survive under a failure-to-make-reasonable-accommodations theory because she has alleged that, despite Amir's request, he was denied access to certain programs and services (such the SOTP, ARTP or TrICP) while he was confined in SHU (as alleged in Paragraphs 71, 77 and 108 of the Amended Complaint and as indicated in four exhibits to Attorney Petrocelli's Declaration); (5) because, in opposing the AG Defendants' motion to dismiss, Plaintiff has relied on facts and other information "outside the pleadings, " the Court should convert the AG Defendants' motion to dismiss to one for summary judgment and deny it; and (6) in the event the Court grants the AG Defendants' motion to dismiss, it should grant Plaintiff leave to file a Second Amended Complaint. (Dkt. No. 96.)

Generally, in reply, the AG Defendants argue as follows: (1) contrary to Plaintiff's argument, the paragraphs of her Amended Complaint that she relies on do not allege facts plausibly suggesting discrimination based on disability but allege merely an inadequate level of mental health care; (2) with regard to Plaintiff's reliance on the disparate-impact theory of liability and the failure-to-make-reasonable-accommodation theory of liability, (a) she does not allege facts plausibly suggesting that Amir could have participated in any DOCCS program while he was a patient at the CNY Psychiatric Center, (b) she does not allege facts plausibly suggesting that he was a convicted sex offender sufficient to qualify for the SOTP (or that non-mentally ill inmates at Mid-State C.F., who were not convicted sex offenders, were enrolled in the SOTP), and (c) she disregards the fact that he effectively excluded himself from access to any inmate programs (including the SOTP) by incurring disciplinary penalties within a month of arriving at Mid-State C.F., as alleged in the Amended Complaint; (3) the Court should not accept Plaintiff's evidentiary submissions or convert the AG Defendants' motion to dismiss to one for summary judgment, because (a) if viewed in a light most favorable to Plaintiff, they do not establish a prima facie case of ADA discrimination by Defendants against Amir, and (b) in any event, Plaintiff has not filed a Statement of Material Facts as required by Local Rule 7.1(a)(3) of the Local Rules of Practice for this District; and (4) finally, Plaintiff should not be granted leave to amend her operative pleading yet again, because doing so would be futile. (Dkt. No. 112.)

2. Ruling on the AG Defendants' Motion to Dismiss

After carefully considering the matter, the Court grants this motion for the reasons stated in the AG Defendants' memoranda of law. See, supra, Part III.A.1. of this Decision and Order. To those reasons, the Court adds the following analysis.

Regarding Plaintiff's disparate-treatment theory of liability, the Court rejects that theory on the additional ground that the Amended Complaint alleges only conclusorily that Defendants treated Amir differently than they treated others similarly situated because of his mental illness. For example, of the 49 Defendants against whom this claim is asserted, 14 are mental health care professionals, [12] 30 of the other 35 officials being John or Jane Doe Defendants (against whom scant, if any, factual allegations are asserted).[13] With regard to the 14 mental health care professionals, it appears implausible to the Court that those mental health professionals, whose job it was to care for mentally ill patients such as Plaintiff, intentionally discriminated against him based on his mental illness.[14]

Moreover, with regard to all 49 of these Defendants, the Court notes that Paragraphs 69, 79 of 108 of the Amended Complaint are based merely on "information and belief." (Dkt. No. 38, at ¶¶ 69, 79, 108 [Plf.'s Am. Compl].) Granted, such allegations may suffice "where [1] the facts are peculiarly within the possession and control of the defendant or [2] where the belief is based on factual information that makes the inference of culpability plausible." Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir.2010) (internal quotation marks omitted). However, here, Plaintiff has identified no barrier that would prevent her from obtaining the identify (or even a description) of any of the other individuals to whom she compares Amir. See, e.g., Installed Bldg. Prods., LLC v. Cottrell, 13-CV-1112, 2014 WL 3729369, at *4 (W.D.N.Y. July 25, 2014) ("The Plaintiff has identified no barrier that would prevent it from simply asking the customers or employees it alleges Cottrell has solicited whether Cottrell has, in fact, solicited them.").[15] As a result, Plaintiff's "information and belief" allegations will suffice only if the belief is based on factual information that makes the inference of culpability plausible. However, here, the "factual information" relied on by Plaintiff is not alleged. (Dkt. No. 38, at ¶¶ 69, 79, 108 [Plf.'s Am. Compl].) This remains the case even when the Court considers the 307 pages of exhibits attached to Plaintiff's Amended Complaint. (Dkt. No. 38, Attach. 1-8.) Simply stated, this theory of liability is vague, speculative and conclusory. See, e.g., JBCHoldings NY, LLC v. Pakter, 931 F.Supp.2d 514, 526-27 (S.D.N.Y. 2013).

Regarding Plaintiff's disparate-impact theory of liability, the Court rejects that theory on each of two grounds: (1) as an initial matter, the Amended Complaint fails to allege facts plausibly suggesting the existence of any policy whatsoever; and (2) in any event, the Amended Complaint fails to allege facts plausibly suggesting that any such policy imposed a significantly adverse or disproportionate impact on a protected group of individuals. The Court notes that, with regard to Amir's treatment in the CNY Psychiatric Center, Plaintiff does not allege facts plausibly suggesting that other mental health patients were treated differently than was Amir based on their particular mental illness, or that Amir could have even participated in any DOCCS program or service while he was a patient at the CNY Psychiatric Center.[16] With regard to Amir's treatment in DOCCS, Plaintiff does not allege facts plausibly suggesting that other mental health patients were treated differently than was Amir based on their particular mental illness (e.g., receiving access to TrICP, SOTP and/or ARTP), or even that all mental health patients were denied access to TrICP at Mid-State C.F., or to TrICP, SOTP and/or ARTP at Mid-State C.F.[17] In any event, Plaintiff does not allege facts plausibly suggesting that non-mentally-ill inmates convicted of a disciplinary offense and serving a sentence in SHU can participate in programs and services (such as the TrICP, SOTP and ARTP).[18]

Regarding Plaintiff's failure-to-make-reasonable-accommodations theory of liability, the Court rejects that theory on the additional ground that the Amended Complaint does not allege facts plausibly suggesting any alternative accommodation that would have been reasonable under the circumstances, which involved the following: (1) the commission of a dozen increasingly serious disciplinary violations by Amir over a four-month period (stemming from charges of losing/damaging property, having property in an unauthorized location, smuggling property, committing an unreported identification change, refusing a direct order, creating a disturbance, fighting, committing violent conduct, creating another disturbance, committing an assault on staff, committing an unhygienic act, committing more violent conduct, committing another assault on staff, and committing another unhygienic act); and (2) sufficient assessment of his mental health condition by various Defendants to result in two changes of his mental health diagnoses during that time period. (Dkt. No. 38, at ¶¶ 91, 92, 93, 95, 96, 97, 98, 99, 100, 103, 110, 111, 113 [Plf.'s Am. Compl.]; Dkt. No. 38, Attach. 4, at 9, 10-14 [attaching pages "8" through "13" of N.Y.S. Commission of Correction's Final Report, describing offenses]; Dkt. No. 38, Attach. 8, at 10 [attaching page "9" of N.Y.S. Commission of Correction's Final Report, stating that "SHU inmates are seen daily by mental health on SHU rounds and are offered private out of cell encounters bi-weekly"].) Under the circumstances, to the extent Plaintiff challenges the adequacy of the mental health attention and diagnoses that Amir received while in SHU, that challenge is appropriately asserted in an Eighth Amendment claim.

Regarding Plaintiff's request that the Court convert the AG Defendants' motion to dismiss to one for summary judgment, the Court denies that request on each of three alternative grounds: (1) it is nonsenical to argue that, under Fed.R.Civ.P. 12(d), the Court should consider matters outside the pleadings (on a motion to dismiss for failure to state a claim) merely because the non-movant has presented them;[19] (2) in any event, the Court finds it unnecessary to proceed to an evidentiary analysis of claims that, as here, have been shown to be not actionable;[20] and (3) in any event, granting Plaintiff's request would cause an undue delay in the resolution of these two claims (necessitated by the Court's having to give the AG Defendants a reasonable opportunity to supplement their motion papers with a Rule 7.1 Statement, give Plaintiff a reasonable opportunity to supplement her opposition papers with a Rule 7.1 Response, and give the AG Defendants a reasonable opportunity to supplement their reply papers).[21]

Finally, regarding Plaintiff's request for leave to file a Second Amended Complaint, the Court denies that request on each of three alternative grounds: (1) such leave need not be "freely" given to Plaintiff, because she has already filed an Amended Complaint;[22] (2) in any event, no proposed Second Amended Complaint has been attached, in violation of Local Rule 7.1(a)(4); and (3) in any event, the proposed amendment is both unduly late and futile.[23]

B. Defendant Kingsley's Motion for Summary Judgment

1. Parties' Briefing on Defendant Kingsley's Motion

Generally, in her motion for summary judgment, Defendant Kingsley argues as follows:

(1) with regard to Plaintiff's Eighth Amendment claim, the record contains no admissible evidence from which a rational fact finder could conclude that the allegedly inadequate medical care that Kingsley provided to Amir (by failing to perform a face-to-face interview with him, including a suicide screen, upon his arrival at Great Meadow C.F. at 2:15 p.m. on June 18, 2010) could produce death, degeneration, or extreme pain in him, given that (a) his chart did not indicate that he was going to hurt himself (and indeed it indicated that he had already been referred to mental health), (b) an essentially identical suicide screen was completed by Kilburn upon Amir's arrival at SHU at 2:36 p.m. that day, and (c) Amir was assessed by Registered Nurse Stevens at 2:48 p.m. that day; (2) in any event, the record contains no admissible evidence from which a rational fact finder could conclude that Kingsley acted with a sufficiently culpable mental state (i.e., deliberate indifference, which is akin to criminal recklessness, or knowing of and disregarding an excessive risk to inmate health and safety), given that (a) she made several unsuccessful attempts to have Amir brought to her area for a face-to-face interview, (b) she reviewed his chart and found nothing to indicate to her that he was going to hurt himself, (c) she knew that an identical suicide screen would be completed if Amir was admitted to SHU (which it had been, by Defendant Kilburn, at 2:36 p.m. that day), and (d) she was concerned enough about Amir's treatment to call a nurse at the SHU to ensure that he received his Synthroid; and (3) Plaintiff's pendent state-law claims are barred by New York Correction Law § 24. (Dkt. No. 130, Attach. 6 [Def. Kingsley's Memo. of Law].)

Generally, in response, Plaintiff argues as follows: (1) with regard to her Eighth Amendment claim, the record contains admissible evidence from which a rational fact finder could conclude that Defendant Kingsley's failure to obtain immediate mental health care for Amir was objectively serious and was likely to cause him serious harm; (2) moreover, the record contains admissible evidence from which a rational fact finder could conclude that Kingsley deliberately failed to provide Amir with the immediate OMH referral that she determined he needed; and (3) New York Correction Law § 24 does not bar Plaintiff's pendent state-law claims against Kingsley because that statute applies only to claims arising from actions or failures performed "within the scope of [Kingsley's] employment and in the discharge of [her] duties, " and Plaintiff's claims against Kingsley all arise from failures that were not performed within the scope of her employment or in the discharge of her duties. (Dkt. No. 150 [Plf.'s Opp'n Memo. of Law].)

Generally, in reply, Defendant Kingsley argues as follows: (1) Plaintiff's counsel misinterprets Salahuddin v. Goord, 467 F.3d 263 (2d Cir. 2006), which imposes liability not for all failures to act but only for failures to act under circumstances in which the charged official was actually aware of a substantial risk that serious inmate harm would result (as a consequence of the failure to act), which circumstances are not present here; (2) the violation of an established procedure, without more, does not constitute deliberate indifference; and (3) Plaintiff's pendent state-law claims against Kingsley are barred by New York Correction Law § 24, because those claims all arise from failures that were performed within the scope of Kingsley's employment or in the discharge of her duties (e.g., a negligent completion of a health screening form through a mere chart review). (Dkt. No. 160 [Def. Kingsley's Reply Memo. of Law].)

2. Ruling on Defendant Kingsley's Motion

After carefully considering the matter, the Court grants this motion for the reasons stated in Defendant Kingsley's memoranda of law. See, supra, Part III.B.1. of this Decision and Order. To those reasons, the Court adds the following analysis.

Plaintiff's claims against Defendant Kingsley are based on two acts of omission: (1) completing Amir's health screening form (upon his arrival of Great Meadow C.F.) based on only a review of his medical records (i.e., without conducting an in-person suicide screen), in violation of DOCCS policy; and (2) determining that Amir needed an immediate referral to OMH without separately making that referral, also in violation of DOCCS policy.

With regard to the first act of omission (i.e., completing Amir's health screening form without conducting an in-person suicide screen), it is undisputed that (regardless of whether she could have, or should have, departed from prior procedure and left her clinic unattended by a medical staff member to see Amir down in the SHU) Defendant Kingsley made several unsuccessful attempts to have Amir brought up to her area for a face-to-face interview. (Dkt. No. 130, Attach. 9, at 20 [attaching page "70" of Kingsley Depo.]; Dkt. No. 130, Attach. 2, at ¶¶ 6-7, 12 [Kingsley Decl.].)

Moreover, it is undisputed that, while Defendant Kingsley found from Amir's medical records that he needed an immediate referral to mental health, she did not see in those medical records any indication that he was an active suicide risk. (Dkt. No. 130, Attach. 2, at ¶ 9 [Kingsley Decl., stating, "From my review of Amir Hall's medical records, I did not see any indication that he was an active suicide risk"].)[24] Nor was she advised of any such risk from the transport officers, who recalled no unusual behavior from Amir during his transport. (Dkt. No. 130, Attach. 5, at ¶ 17 [Plf.'s Rule 7.1 Response, admitting fact].)

Furthermore, it is undisputed that, at the time Defendant Kingsley completed Amir's health screening form, she knew that, if he was going to SHU, he would receive a nearly identical suicide screening; and it is also undisputed that he received that suicide screening approximately16 minutes after arriving at Great Meadow C.F. (Dkt. No. 130, Attach. 9, at 7-8 [attaching pages "57" and "58" of Kingsley Depo.]; Dkt. No. 130, Attach. 5, at ¶¶ 17, 20 [Plf.'s Rule 7.1 Response, admitting fact].)

Finally, it is undisputed that Defendant Kingsley was sufficiently concerned about Amir's treatment to speak to a nurse assigned to the SHU to ensure that he received his Synthroid medication. (Dkt. No. 130, Attach. 9, at 39 [attaching page "89" of Kingsley Depo.]; Dkt. No. 130, Attach. 2, at ¶ 8 [Kingsley Decl.].)

Based on these undisputed facts, it appears conceivable that a rational fact finder could conclude that Defendant Kingsley acted negligently by completing Amir's health screening form without conducting an in-person suicide screen; however, no rational fact finder could conclude that Kingsley acted with a mental state akin to criminal recklessness (i.e., knowing of, and disregarding, an excessive risk to inmate health and safety), even if she had been previously informed that completing a separate form based only on chart review was not proper practice.

With regard to the second act of omission (i.e., determining that Amir needed an immediate referral to OMH without separately making that referral), it is true that, when completing Amir's health screening form, Defendant Kingsley checked the box marked "Yes" next to the words "Immediate Referral to Mental Health." (Dkt. No. 147, Attach. 71, at 3 ["Health Screening for Intrasystem Transfer".) It is also true that Kingsley knew that the completed form, which would be put in Amir's chart, would not reach the doctor responsible for reviewing Amir's records for another three days (i.e., until Monday). (Dkt. No. 147, Attach. 97, at 11-13 [attaching pages "65" through "67" of Kingsley Depo.].)

However, it is undisputed that the Great Meadow C.F. mental health unit was staffed by at least one nurse during that three-day period. (Dkt. No. 130, Attach. 8, at 25-26 [attaching pages "25" and "26" of Kingsley Depo.]; Dkt. No. 130, Attach. 9, at 23 [attaching page "73" of Kingsley Depo.].) More importantly, it is undisputed that the form (which is generally not even looked at by the doctor) is not even what triggers the doctor's attention to an inmate's mental health problems. (Dkt. No. 147, Attach. 130, Attach. 9, at 17 [attaching page "67" of Kingsley Depo.].) Rather, it is undisputed that what triggers the doctor's attention is a packet containing, inter alia, a form listing the inmate's mental health problems. (Dkt. No. 147, Attach. 130, Attach. 9, at 18-19 [attaching pages "68" and "69" of Kingsley Depo.].)

In any event, it is undisputed that Defendant Kingsley checked the box merely because she was under the (correct) impression Amir was already being seen by mental health (effectively rendering her box checking redundant in nature). (Dkt. No. 130, Attach. 9, at 15, 17, 18, 28 [attaching pages "65, " "67, " "68, " and "78" of Kingsley Depo.]; Dkt. No. 130, Attach. 2, at ¶ 14 [Kingsley Decl.].) Moreover, based on her experience, she assumed (again correctly, it turned out) that the Mid-State C.F. mental health staff had already contacted the Great Meadow C.F. mental health staff regarding Amir. (Dkt. No. 130, Attach. 8, at 23-24 [attaching pages "23" and "24" of Kingsley Depo.]; Dkt. No. 130, Attach. 9, at 18, 19, 21, 22 [attaching pages "68, " "69, " "71, " and "72" of Kingsley Depo.].)[25]

Finally, setting aside the fact that the violation of a DOCCS procedure does not itself constitute a violation of the Eighth Amendment, the Court has difficulty locating in the record any admissible evidence that Defendant Kingsley even violated any DOCCS procedure by not separately making that referral under the circumstances. (Dkt. No. 130, Attach. 11, at 18 [attaching page "16" of of N.Y.S. Commission of Correction's Final Report, which does not, as asserted by Plaintiff, require a nurse to separately refer an inmate to mental health after checking the box marked "Immediate Referral to Mental Health."].)

Based on these undisputed facts, it appears conceivable that a rational fact finder could conclude that Defendant Kingsley acted negligently by determining that Amir needed an immediate referral to OMH without separately making that referral; however, no rational fact finder could conclude that Kingsley acted with a mental state akin to criminal ...


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