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Miles v. City of New York

United States District Court, S.D. New York

August 3, 2018

THOMAS MILES, Plaintiff,

          Thomas E. Miles Comstock, New York Pro Se Plaintiff

          Katherine Abigail Byrns Megan Patricia Conger Suzanna Publicker Mettham New York City Law Department New York, New York Counsel for the City Defendants.

          Ana Maria Vizzo Austa Starr Devlin Daryl Paxson David Rosen Heidell, Pittoni, Murphy & Bach, LLP New York, New York Counsel for Defendant Vassallo.

          OPINION & ORDER


         Pro se Plaintiff Thomas Miles brings this action pursuant to 42 U.S.C. § 1983, alleging that Defendants New York City Police Department (“NYPD”) Sergeant Sean Aman, NYPD Police Officer Kevin Butt, NYPD Police Officer Cynthia Acerra, New York City Department of Correction (“DOC”) Captain William Smith, DOC Captain Manuel Gonzalez, DOC Correction Officer Duane Groce, New York City Fire Department Emergency Medical Technician (“EMT”) Adam Vasquez, Physician Assistant (“PA”) Joseph McCreedy (the “Individual City Defendants”), the City of New York (the “City” and collectively, the “City Defendants”), and Dr. Susi Vassallo violated his federal civil rights. Before me are the motions of the City Defendants and Dr. Vassallo to dismiss Plaintiffs third amended complaint (“TAC”) in its entirety. For the reasons that follow, Defendants' motions are GRANTED.

         I. Background[1]

         On December 5, 2011, Plaintiff was arrested for Criminal Possession of a Weapon and Menacing. (See Mettham Decl. Ex. E.)[2] Plaintiff alleges that, during his arrest, he was subjected to excessive force by Defendants Sargeant Aman, Officer Butt, and Officer Accera (the “NYPD Defendants”). (TAC ¶¶ 62-105.) Plaintiff ultimately pled guilty to Attempted Criminal Possession of a Weapon in connection with his arrest. (See Mettham Decl. Ex. F.)

         After Plaintiff was arrested, the NYPD Defendants called for an ambulance, and Plaintiff was transported to Bellevue Hospital. (TAC ¶ 202.) At Bellevue Hospital, Dr. Vassallo asked Plaintiff “what was the matter, ” and he informed her of the circumstances of his arrest. (Id. ¶¶ 204-05.) He told her that he could not stand or walk, that he was in severe pain, and that he had urinated on himself. (Id. ¶ 205.) Despite this information, Dr. Vassallo failed to physically examine Plaintiff or provide him with any medication. (Id. ¶¶ 206-07.) However, Dr. Vassallo informed Officers Accera and Butt that “Plaintiff's x-rays indicated no injury” and that he could be discharged. (Id. ¶¶ 210-11.) Thereafter, Plaintiff was released to the custody of the NYPD Defendants, who first transported Plaintiff to the precinct, and then to central booking.

         While at central booking, EMT Vasquez examined Plaintiff and cleared him to proceed with the booking process. (Id. ¶¶ 493-95.) After Plaintiff was arraigned, he was transferred to the Manhattan Detention Complex (“MDC”), where he was “brutalized by other detainees” in the MDC holding cell. (Id. ¶¶ 527-28.) Defendants Captain Smith and Captain Gonzalez “took no action whatsoever to stop the attack” including by failing to direct their subordinates to do so. (Id. ¶¶ 530-32, 611-14.) Additionally, while he was in the MDC holding cell, Plaintiff “needed to use the toilet but being incapacitated by his serious injuries he was unable to get up.” (Id. ¶ 526.) Plaintiff pleaded with Defendants Captain Smith and Captain Gonzalez to be removed from the cell and returned to the hospital, but Defendant Captain Smith instead told him that he would not get “special treatment” because he was “white” and swore at him. (Id. ¶¶ 609-11.)

         After “countless hours in the over-crowded [MDC holding cell, ] where Plaintiff continued to be subjected to numerous, sporadic attacks by other detainees, ” Plaintiff was taken to a clinic at the MDC. (Id. ¶ 646.) At the clinic, Plaintiff was seen by Defendant PA McCreedy. (Id. ¶ 647.) Plaintiff explained that he had been seriously injured and was in “intolerable pain, ” and he begged to be sent back to Bellevue Hospital or to the jail's infirmary. (Id. ¶ 648.) Defendant PA McCreedy told him that “Plaintiffs condition clearly indicated hospitalization but he did not have the authority to send Plaintiff back to the hospital or to send him to the infirmary.” (Id. ¶ 649.) He thus refused Plaintiffs pleas for further treatment and cleared Plaintiff for general population placement. (Id. ¶¶ 648-51.)

         After several weeks of inadequate medical care, Plaintiff was treated at another clinic on or about February 22, 2012. (Id. ¶ 714.) During this visit, the doctor on duty informed Plaintiff that his “MRI results indicated that [he] had sustained four fractures to his pelvis, damage to his lumbar vertebrae, damage to spinal disc tissue, [and] nerve damage.” (Id. ¶ 714.) Although Plaintiff sought to receive further treatment and physical therapy, it was never provided to him. (Id. ¶¶ 720-24.)

         Plaintiff did not file a grievance in connection with these alleged incidents because he feared reprisal from Defendants and because he was “threatened by Defendants” with the prospect of Defendants losing his paperwork and losing him in the system if he continued to complain about his pain or if he asked to be returned to the hospital. (Id. ¶ 53.) He was also unable to leave his cell and was thus prevented access to any grievance process. (Id. ¶ 59.) Furthermore, “even if Plaintiff had pen and paper in his cell-which he did not-Plaintiff was . . . wracked with excruciating pain, ” and his injuries prevented him from writing and filing a grievance. (Id. ¶ 60.)

         II. Procedural History

         On November 20, 2014, Plaintiff commenced this action by filing his complaint (“Original Complaint”). (Doc. 1.) On January 5, 2015, I issued an order, sua sponte, pursuant to Valentin v. Dinkins, 121 F.3d 72, 76 (2d. Cir. 1997), requesting that Defendant City attempt to determine the identities of John Does #1 through #14 and provide the addresses at which those individuals could be served.[3] (Doc. 7 (the “Valentin Order”).) On October 6, 2015, Plaintiff filed his first amended complaint (“FAC”), (Doc. 31), naming Defendants Sergeant Aman, Officer Butt, Officer Accerra, EMT Vasquez, Captain Smith, Captain Gonzalez, PA McCreedy, Correction Officer Groce, and Dr. Vassallo in place of several of the John Does. Thereafter, Plaintiff filed a second amended complaint (“SAC”) on February 22, 2016, (Doc. 51), naming the same individuals as he did in the FAC.

         On August 24, 2016, the parties appeared before me for a telephone conference to discuss Defendants' anticipated motions to dismiss the SAC. (See Doc. 77.) At the conference, I permitted Defendants to file their motions, directing Plaintiff to file either an opposition or an amended complaint in response to those motions. Specifically, I explained that Plaintiff could file an amended complaint in lieu of an opposition and stated the following: “[I]f you think there are additional facts that you could add that would deal with the motions that the defendants are going to make, once you see their papers, you can . . . file whatever amended pleading- amended complaint-that you think would deal with their arguments.” (8/4/16 Tr. 7:11-18.)[4]

         On September 22, 2016, Dr. Vassallo filed her motion to dismiss the SAC, (Doc. 79), and the City Defendants filed their motion on October 3, 2016, (Doc. 85). After Plaintiff requested that I clarify my prior instruction and ruling from the telephone conference on August 24, 2016, (Doc. 89), I issued a written order noting the following: “Plaintiff can either file an amended complaint if he believes he can cure the deficiencies noted in Defendants' motion to dismiss, or-if he believes his complaint does not have the deficiencies asserted by Defendants such that it can survive the motion to dismiss-he can file a brief/papers in response arguing for why [Defendants'] motion is incorrect.” (Doc. 90.)

         On February 2, 2017, Plaintiff filed the TAC in response to Defendants' motions to dismiss. (Doc. 98.) In light of Plaintiff s filing of the TAC, I denied the pending motions to dismiss as moot with leave to re-file. (Doc. 99.) On March 6, 2017, the City Defendants filed their motion to dismiss the TAC and supporting materials, (Docs. 109-11), as did Dr. Vassallo, (Docs. 105-07). Plaintiff filed an opposition to both motions on June 12, 2017. (Doc. 117.) On July 6, 2017, the City Defendants and Dr. Vassallo each filed a reply in further support of their motions. (Docs. 118-19.)

         III. Legal Standards

         A. Motion to Dismiss

         To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim will have “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This standard demands “more than a sheer possibility that a defendant has acted unlawfully.” Id. “Plausibility . . . depends on a host of considerations: the full factual picture presented by the complaint, the particular cause of action and its elements, and the existence of alternative explanations so obvious that they render plaintiffs inferences unreasonable.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d Cir. 2011).

         In considering a motion to dismiss, a court must accept as true all well-pleaded facts alleged in the complaint and must draw all reasonable inferences in the plaintiffs favor. See Kassner, 496 F.3d at 237. A complaint need not make “detailed factual allegations, ” but it must contain more than mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). Although all allegations contained in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Id. A complaint is “deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (citation omitted).

         Even after Twombly and Iqbal, a “document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Further, pleadings of a pro se party should be read “to raise the strongest arguments that they suggest.” Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006) (quoting Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003)). Nevertheless, dismissal of a pro se complaint is appropriate where a plaintiff fails to state a plausible claim supported by more than conclusory factual allegations. See Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). In other words, the “duty to liberally construe a plaintiff's complaint is not the equivalent of a duty to re-write it.” Geldzahler v. N.Y. Med. Coll., 663 F.Supp.2d 379, 387 (S.D.N.Y. 2009) (internal quotation marks omitted).

         B. Motion to Strike

         Rule 8 provides that a complaint shall contain “a short and plain statement of the claim showing the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). When a complaint does not comply with Rule 8, the court may, on its own initiative, dismiss the complaint in its entirety or strike portions that are redundant or immaterial. See Fed. R. Civ. P. 12(f). “Dismissal, however, is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).

         C. Section 1983

         Section 1983 provides a civil claim for damages against “[e]very person who, under color of any statute . . . of any State . . . subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. “Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). “To state a claim under § 1983, a plaintiff must allege that defendants violated plaintiffs federal rights while acting under color of state law.” McGugan v. Aldana-Bernier, 752 F.3d 224, 229 (2d Cir. 2014), cert. denied, 135 S.Ct. 1703 (2015). Further, “in order to establish a defendant's individual liability in a suit brought under § 1983, a plaintiff must show . . . the defendant's personal involvement in the alleged constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013). Alternatively, “[t]o impose liability on a municipality under § 1983, a plaintiff must ‘identify a municipal policy or custom that caused the plaintiffs injury.'” Newton v. City of New York, 779 F.3d 140, 152 (2d Cir. 2015) (quoting Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997)).

         IV. Discussion

         A. The Third ...

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