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Swanson v. The City of New York

United States District Court, E.D. New York

July 21, 2017

ATLEE SWANSON, individually and as administratrix of the estate of ALVIN NELSON III, Plaintiff,
v.
THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF CORRECTIONS COMMISSIONER JOSEPH PONTE, CORIZON HEALTH INCORPORATED and JOHN and JANE DOES, Defendants.

          MEMORANDUM & ORDER

          MARGO K. BRODIE, United States District Judge:

         Plaintiff Atlee Swanson commenced the above-captioned action on June 17, 2016, individually and as administratrix of the estate of her son, Alvin Nelson III, alleging that numerous institutional and individual defendants[1] violated Nelson's constitutional rights by denying him adequate medical care and causing his death when he was a pre-trial detainee at Rikers Island Correctional Facility. (Compl., Docket Entry No. 1.) Plaintiff filed an Amended Complaint on December 5, 2016, against the City of New York, New York City Department of Corrections Commissioner Joseph Ponte, Corizon Health Incorporated, and John and Jane Doe employees of Rikers Island, Corizon Health, the New York City Department of Corrections and the City of New York. (Am. Compl., Docket Entry No. 20.) Plaintiff alleges claims for violations of Nelson's Fourth and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983, conspiracy under section 1983, supervisory and municipal liability under section 1983, “neglect/failure to prevent/intercede & conspiracy to deprive rights” under 42 U.S.C. §§ 1983, 1985 and 1986, “caused to be subjected” under section 1983, medical malpractice, wrongful death, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, loss of consortium and punitive damages. (Id. ¶¶ 85-232.) The City of New York (the “City”) moves to dismiss the Amended Complaint pursuant to Rules 12(b)(2) and 12(b)(5) of the Federal Rules of Civil Procedure for lack of personal jurisdiction and insufficient service of process and, in the alternative, to dismiss Plaintiff's claims for: (1) inadequate medical care under the Fourth and Eighth Amendments of the U.S. Constitution, [2] (2) conspiracy under sections 1983, 1985 and 1986, (3) supervisory liability, (4) municipal liability, (5) “neglect/failure to prevent/intercede & conspiracy to deprive rights, ” (6) “caused to be subjected” under section 1983 and (7) negligent or intentional infliction of emotional distress for failure to state a claim pursuant to Rule 12(b)(6).[3] (Def. Mot. to Dismiss (“Def. Mot.”) 2, Docket Entry No. 21; Decl. of J.C. O'Brien in Supp. of Def. Mot. (“O'Brien Decl.”), Docket Entry No. 22.) For the reasons set forth below, the Court denies the City's motion to dismiss for insufficient service of process and personal jurisdiction. The Court grants the City's motion to dismiss for failure to state a claim and dismisses Plaintiff's Fourth and Eighth Amendment claims, conspiracy claims under sections 1983 and 1985, failure to intercede claim under section 1986, as well as Plaintiff's claims for supervisory liability, municipal liability, “caused to be subjected” under section 1983 and negligent and intentional infliction of emotional distress.

         I. Background

         a. Factual background

         The Court assumes the truth of the factual allegations for the purpose of deciding this motion. Plaintiff alleges that between October of 2014 and January 21, 2015, while Nelson was a pre-trial detainee in the care and custody of Defendants at Rikers Island, Nelson was denied adequate and timely medical care despite his requests for such care. (See Am. Compl. ¶¶ 27-29.)

         In “about the second to third week of October 2014, ” Nelson visited the medical staff of GMDC with a cold, chills and a fever of 105 degrees, and the staff “merely sent [Nelson] back to his cell and gave him an aspirin or tylenol.” (Id. ¶ 34.) Nelson spoke to Plaintiff about this incident and said that he had “called for sick call” and was waiting to be treated, that he felt like he was “burning up” and his voice sounded raspy. (Id. ¶ 35.) The next day, Nelson again presented to GMDC and complained of the same symptoms, and again, the GMDC staff sent him back to his cell with aspirin or tylenol. (Id. ¶ 36.) Through October and November of 2014, these symptoms continued and worsened, and Nelson became physically weaker and complained of additional symptoms: his right shoulder felt like it was “on fire, ” he suffered from a loss of appetite and was so physically weak that he could not walk. (Id. ¶ 37.)

         Plaintiff called and complained of this treatment to female GMDC corrections officer Mitchell, and was told by Mitchell and her captain that Nelson would “just have to wait.” (Id. ¶¶ 42-43.) Nelson told Plaintiff that he was being made to wait for weeks to see a doctor and that he was perceived not to be suffering from anything severe enough to warrant treatment, even though he was repeatedly coughing up blood, feverish, and unable to walk. (Id. ¶¶ 44-45.) In December of 2014, Plaintiff continued to inquire into the handling of Nelson's health, calling the New York Statement Department of Corrections and Community Supervision (“DOCCS”), Rikers, and GMDC, as well as New York City's 311 line. (Id. ¶ 46.) In or around December of 2014, Nelson saw a doctor at GMDC, who advised him that “so long as you can put your arms over your head and can touch your toes, then there's nothing wrong with you.” (Id. ¶ 48.)

         Sometime in early January of 2015, a nurse in the GMDC infirmary “felt bad to see [Nelson] in his continuing worsening state and that no one there was doing anything about it, ” and finally drew Nelson's blood to send for testing. (Id. ¶ 50.) On January 21, 2015, Nelson was transported to Bellevue Hospital for treatment. (Id. ¶ 51.)

         Between January 21, 2015 and April 6, 2015, Nelson was hospitalized in the Bellevue Hospital Intensive Care Unit. (Id. ¶ 53.) Doctors at Bellevue Hospital told Nelson and Plaintiff that Nelson was suffering from terminal stage IV gall bladder cancer that had metastasized to other organs, and “that it was terminal and that had it been caught earlier and/or had he been brought to Bellevue earlier, it would not have been terminal and he could have under[gone] chemotherapy and/or radiation.” (Id. ¶¶ 53-54.) Because Nelson's cancer had metastasized to his bile duct, liver, spleen and spine, he suffered from blood clots and a stroke. (Id. ¶ 61.) He underwent “emergency life-saving surgery . . . from which he then became and remained paralyzed on the left sized of his body, ” and which “directly and proximately caused his wrongful death on or about April 6, 2015.” (Id.)

         Plaintiff alleges that Defendants were deliberately indifferent to Nelson's life and health, conspired to deny him adequate medical care because of his race, denied him adequate care, subjected him to cruel and unusual punishment, deviated from accepted standards of medical practice, and failed to train and supervise medical staff and employees who saw Nelson at GMDC. (Id. ¶ 64.) Plaintiff seeks compensatory and punitive damages for the denial of medical care, as well as damages for loss of services and companionship with Nelson and Nelson's two minor children. (Id. ¶ 65.)

         II. Discussion

         a. Standards of review i. Rules 12(b)(2) and 12(b)(5)

         On a motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, “[a] plaintiff bears the burden of demonstrating personal jurisdiction over a person or entity against whom it seeks to bring suit.” Troma Entm't, Inc. v. Centennial Pictures Inc., 729 F.3d 215, 217 (2d Cir. 2013) (citing Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 34 (2d Cir. 2010)); see also Thackurdeen v. Duke Univ., 660 F. App'x 43, 44-45 (2d Cir. 2016) (“In opposing a motion to dismiss for lack of personal jurisdiction, plaintiffs bear the burden of establishing that the court has jurisdiction over defendants.” (citations, alterations and internal quotation marks omitted)). “To establish personal jurisdiction, [a plaintiff] must show that [the defendant] has minimum contacts with the forum and was properly served.” Howell v. Campbell, No. 15-CV-3705, 2016 WL 1241529, at *2 (S.D.N.Y. Mar. 23, 2016) (citing Salmassi e. Kfr. v. Euro-America Container Line Ltd., 08-CV-4892, 2010 WL 2194827, at *4 (S.D.N.Y. June 1, 2010)).

         Rule 12(b)(5) permits a party to move to dismiss the complaint for insufficient service of process.[4] Fed.R.Civ.P. 12(b)(5). “In considering a Rule 12(b)(5) motion to dismiss for insufficient service of process, a court must look[] to matters outside the complaint to determine whether it has jurisdiction.” George v. Prof. Disposables Int'l, Inc., 221 F.Supp.3d 428, 432 (S.D.N.Y. 2016) (internal quotation marks omitted) (quoting Cassano v. Altshuler, 186 F.Supp.3d 318, 320 (S.D.N.Y. 2016)); see also Hawthorne v. Citicorp Data Sys., Inc., 219 F.R.D. 47, 49 (E.D.N.Y. 2003) (“Without proper service a court has no personal jurisdiction over a defendant.”). A court considers whether the plaintiff has complied with Rule 4, which governs the content, issuance and service of a summons. DeLuca v. AccessIT Grp., Inc., 695 F.Supp.2d 54, 64 (S.D.N.Y. 2010). “Once a defendant challenges the sufficiency of service of process, the burden of proof is on the plaintiff to show the adequacy of service.” Id. (citation omitted); accord Khan v. Khan, 360 F. App'x 202, 203 (2d Cir. 2010).

         ii. Rule 12(b)(6)

         In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must construe the complaint liberally, “accepting all factual allegations in the complaint as true and drawing all reasonable inferences in the plaintiff's favor.” Concord Assocs., L.P. v. Entm't Prop. Trust, 817 F.3d 46, 52 (2d Cir. 2016) (quoting Chambers v. Time Warner Inc., 282 F.3d 147, 152 (2d Cir. 2002)); see also Tsirelman v. Daines, 794 F.3d 310, 313 (2d Cir. 2015) (quoting Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997)).

         A complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717-18 (2d Cir. 2013). Although all allegations contained in the complaint are assumed true, this principle is “inapplicable to legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678.

         b. Insufficient service of process

         The City argues that despite repeated notices to Plaintiff, the City was never served with a summons in this action. (Def. Mem. 11.) Plaintiff acknowledges that the summons lacked the seal of the Court and signature of the Clerk of Court, but argues that a technical deficiency does not warrant dismissal because the City has not suffered prejudice from the error. (Pl. Opp'n Mem. 26.)

         Under Rule 4(b), “[o]n or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal.” Fed.R.Civ.P. 4(b). “If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant.” Id.; see also Id. 4(a)(1)(F) & (G) (requiring that a summons be signed by the clerk and bear the court's seal). “A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) [ninety days] and must furnish the necessary copies to the person who makes service.” Id. 4(c)(1). Rule 4(m) provides that:

If a defendant is not served within [ninety] 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 failure, the court must extend the time for service for an appropriate period.

         Id. 4(m). “It is clear under the second clause of Rule 4(m) that an extension is always warranted upon a showing of ‘good cause, '” and “[t]he first clause of Rule 4(m), which makes no mention of good cause, grants discretion to district courts in a backhanded fashion by dictating that they . . . must decide to dismiss . . . or decide not to dismiss. But no criteria for this decision are supplied in the rule itself.” Zapata v. City of New York, 502 F.3d 192, 197 (2d Cir. 2007). In determining whether a discretionary extension is appropriate absent good cause, a court considers the following factors: (1) whether any applicable statutes of limitations would bar the action once refiled; (2) whether the defendant had actual notice of the claims asserted in the complaint; (3) whether the defendant attempted to conceal the defect in service; and (4) whether the defendant would be prejudiced by extending the plaintiff's time for service. DeLuca, 695 F.Supp.2d at 66 (collecting cases); see also Soos v. Niagara County, 195 F.Supp.3d 458, 467 (W.D.N.Y. 2016); Howell, 2016 WL 1241529, at *4; Beauvoir v. U.S. Secret Serv., 234 F.R.D. 55, 58 (E.D.N.Y. 2006).

         Although “[t]echnical errors in a summons generally do not render service invalid, ” where the error “actually results in prejudice to the defendant or demonstrates a flagrant disregard of Rule 4, service will be considered invalid and amendment need not be allowed.” DeLuca, 695 F.Supp.2d at 65 (citations omitted); see also Durant v. Traditional Invs., Ltd., No. 88-CV-9048, 1990 WL 336611, at *4 (S.D.N.Y. Mar. 22, 1990) (“When the error in the summons goes to form rather than substance, amendment . . . should be freely granted . . . as courts should not deny a plaintiff her day in court due to technical imperfections in service.”); Macaluso v. N.Y.S. Dep't of Envtl. Conserv., 115 F.R.D. 16, 17 (E.D.N.Y. 1986 (stating that “amendments to process are freely given because courts do not wish to deny plaintiffs their day in court for failure to observe mere technicalities”); cf. Osrecovery, Inc. v. One Grp. Int'l, Inc., 234 F.R.D. 59, 60 (S.D.N.Y. 2005) (“Although minor or technical defects in a summons in certain circumstances do not render service invalid, defects that are prejudicial to the defendant or show a flagrant disregard for [Rule 4] do.”).

         “Courts in the Second Circuit are split as to whether an unsigned and unsealed summons is a technical defect or a flagrant disregard of Rule 4.” DeLuca, 695 F.Supp.2d at 65 (collecting cases); compare Kriger v. Am. Express Fin. Advisors, No. 98-CV-782E(F), 2000 WL 207119, at *4 (W.D.N.Y. Feb. 16, 2000) (denying the defendant's motion to dismiss for insufficient service where the absence of the clerk's signature and the court's seal were “mere technical defects”) with Macaluso, 115 F.R.D. at 18 (“This [c]ourt . . . does not view service of an unsigned, unsealed summons not issued by the court clerk as a mere technical defect. Instead, it amounts to a complete disregard of requirements of process set forth clearly and concisely in Rule 4.”).

         Here, the Court need not resolve whether the deficiencies in the summons amount to technical error or flagrant disregard of Rule 4 because, regardless, the Court exercises its discretion under Rule 4(m) to allow amendment.

         On June 17, 2016, the Clerk of Court directed Plaintiff to submit summonses. (See Notice dated June 17, 2016.) Plaintiff does not appear to have done so. On August 24, 2016, the City requested an extension of time to answer the Complaint or move to dismiss. (Def. Letter dated Aug. 24, 2016, Docket Entry No. 4.) On August 26, 2016, Magistrate Judge Robert Levy granted the City's request and directed Plaintiff's counsel to file a summons and affidavit of service by September 12, 2016. (Order dated Aug. 26, 2016.) On October 13, 2016, the City filed a letter requesting a pre-motion conference in anticipation of a motion to dismiss, and, in the letter, noted that it had not been properly served. (Def. Pre-Mot. Conf. Letter, Docket Entry No. 6.) The next day, Plaintiff filed numerous entries titled “SUMMONS returned executed, ” which attached affidavits of service corresponding to each named Defendant and stating that each Defendant had been served between August 8, 2016 and August 18, 2016. (See Docket Entry Nos. 7-14.) Each affidavit of service represented that a Defendant had been served by “Elite Legal Services of NY, Inc., ” and Plaintiff attached a single copy of the summons that was served on the City of New York. (See Summons, Docket Entry No. 7-1.) The summons provides the case number, the caption, the name and address of Plaintiff's attorney and instructions for answering the Complaint in accordance with the Federal Rules of Civil Procedure. (See id.) The summons does not include the City's name and address, bear the Court's seal or contain the signature of the Clerk of Court, but the City of New York's Office of Corporation Counsel appears to have stamped the summons upon receiving it on August 8, 2016. (See id.)

         Plaintiff has not detailed her efforts to serve Defendants in compliance with Rule 4, and thus has not shown good cause for the deficiencies. (See Pl. Opp'n Mem. 24-25.) The Court therefore applies the four factors to determine whether to grant Plaintiff further leniency in the absence of good cause. See Soos, 195 F.Supp.3d at 467 (applying the factors).

         In this case, the three-year statute of limitations applicable to claims under section 1983 will not expire until, at the earliest, October of 2017. See Abbas v. Dixon, 480 F.3d 636, 638 (2d Cir. 2007) (applying three-year limitations period to actions under section 1983 where the alleged incidents occurred in New York); (see also Am. Compl. ¶¶ 27-29 (alleging that the initial denials of medical care occurred in October of 2014)). Next, there is no evidence of prejudice to the City, which received the summons and timely appeared in the action. (See Summons (stamped as received on August 8, 2016).) As to the third factor, there is no evidence that the City attempted to conceal the defective service; in fact, it appears that the City gave notice of defective service early in the litigation, (see Order dated Aug. 26, 2016). Finally, as to the fourth factor, the City has identified no prejudice that it would suffer as a result of a further extension to service.

         Because the City has identified no prejudice from the errors in the summons, the sole result of granting Plaintiff an extension of time would be to require Defendants to defend the case on the merits. Accordingly, the Court grants Plaintiff thirty days from the date of this Memorandum and Order to serve a properly signed and sealed summons on each named Defendant, in compliance with Rule 4 of the Federal Rules of Civil Procedure, and to file both an affidavit of service and a copy of the summons as it was served on each Defendant. If Plaintiff fails to serve the summons or file proof of service with the Court within thirty days, the Court will dismiss the action without prejudice for failure to comply with Rule 4(m).

         c. Fourth Amendment and Fourteenth Amendment claims

         Plaintiff alleges in count one of the Amended Complaint that Defendants violated Nelson's Fourth Amendment and Fourteenth Amendment rights to be “free from unlawful seizure of his person and to be free from cruel and unusual punishment.” (Am. Compl. ¶¶ 86-88.) The City argues that count one invokes the language of the Eighth Amendment's prohibition on cruel and unusual punishment, [5] and that ...


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