United States District Court, S.D. New York
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.
Maria Vizzo Austa Starr Devlin Daryl Paxson David Rosen
Heidell, Pittoni, Murphy & Bach, LLP New York, New York
Counsel for Defendant Vassallo.
OPINION & ORDER
S. BRODERICK, UNITED STATES DISTRICT JUDGE.
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.
December 5, 2011, Plaintiff was arrested for Criminal
Possession of a Weapon and Menacing. (See Mettham Decl. Ex.
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.)
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
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.
“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.)
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.
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.)
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. (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
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.
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.”
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.)
Motion to Dismiss
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).
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).
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).
Motion to Strike
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).
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)).
The Third ...