Opinion
11 CV 2598 (SLT)
11-26-2012
DAVID BROOKS, Plaintiff, v. MICHAEL SPOSATO, et. al., Defendants.
REPORT AND RECOMMENDATION
On April 18, 2011, plaintiff David H. Brooks commenced this lawsuit against the following defendants: Michael Sposato, acting sheriff of Nassau County and Warden of the Nassau County Correctional Center ("NCCC"); William Zerillo, Warden of the Queens Private Detention Facility ("QPDF"); Dr. Lyubov Gorelik, a staff psychiatrist at QPDF; Jason Maffia, Supervising Health Services Administrator of QPDF; Timothy Hogan, Richard Viets, and John Quaranto, all of whom are Deputy United States Marshals (the "Marshal defendants"); and John Does 1-100, alleged to be various employees of NCCC, QPDF, and the United States Marshals Service. Plaintiff seeks damages for violations of the Eighth Amendment, as well as damages for alleged medical malpractice by defendant Gorelik.
Plaintiff initially and occasionally throughout his papers refers to Nassau County Correctional Center as Nassau County Correctional Facility. For the sake of clarity, the Court uses Nassau County Correctional Center ("NCCC") throughout this Report and Recommendation.
On April 18, 2012, the undersigned held a telephone conference in this case, at which time the Court Ordered the parties to attempt to reach an agreement regarding the disposition of certain of plaintiff's claims, and to notify the Court of any unresolved issues by May 7, 2012. Currently before the Court are the issues raised in the parties' subsequent submissions to the Court.
BACKGROUND
Plaintiff alleges that he was first arrested on October 24, 2007 On charges of securities fraud, and that he was taken to NCCC. (Compl. ¶¶ 3, 16). At both an initial detention hearing held on October 25, 2007 and at a second bail hearing on October 30, 2007, both held in the Eastern District of New York, plaintiff's counsel stated in open court that plaintiff had serious psychological illnesses that required him to receive "very high doses" of a benzodiazepine medication. (Id. ¶¶ 5, 17-20). Throughout the time that plaintiff was first incarcerated at NCCC, from his arrest on October 24, 2007 until he was released on bail on January 3, 2008, plaintiff received his necessary doses of benzodiazepine. (Id. ¶ 22). Plaintiff similarly received the required benzodiazepine medication while on bail. (Id. ¶ 23).
Citations to "Compl." refer to plaintiff's Complaint, filed in the Southern District of New York on April 18, 2011. Although plaintiff relies upon an Amended Complaint in some of his papers (see, e.g., plaintiff's response to the Marshal defendants' Motion to Dismiss, which was filed as a bundled motion on March 19, 2012), the Amended Complaint was never filed with the court, and therefore, is not relied on in this Report and Recommendation. Indeed, although plaintiff filed a request to submit an Amended Complaint on January 18, 2012, that request was withdrawn by plaintiff on March 19, 2012, and this Court So Ordered that withdrawal on March 20, 2012.
The Complaint asserts that at the initial detention hearing on October 25, 2007, plaintiff's counsel advised the court of plaintiff's health issues. (Compl. ¶ 18). On October 29, 2007, plaintiff's treating physician provided the court with a letter that explained plaintiff's illness, discussed the medication he was receiving, and warned that if plaintiff "abruptly" stopped taking the benzodiazepine medication, it could result in "life threatening grand mal seizures." (Id. ¶ 20). On October 30, 2007, the government conceded that plaintiff "had exhibited bizarre and troubling behavior, and was being treated with extraordinarily high doses of psychiatric medication." (Id. ¶ 21).
On January 14, 2010, plaintiff alleges that he was arrested again, and again was remanded to the custody of NCCC. (Id. ¶ 24). Plaintiff asserts that while he was being transported to NCCC on January 14, 2010, he suffered a serious panic attack and was taken immediately to the emergency room of New York Presbyterian/Weill Cornell Medical Center, where plaintiff was given benzodiazepine medication before being transported to the NCCC facility. (Id.) Upon arriving at the NCCC facility, plaintiff asserts that he was placed into solitary confinement and was deprived of his medication. (Id. ¶ 25).
Plaintiff does not explain why he was re-arrested. (See Compl. ¶¶ 6, 24). However, according to the docket sheet for the related criminal matter, United States v. Schlegel, et al., 06 CR 550 ("06 CR 550"), plaintiff was arrested on January 14, 2010 on charges that he had violated the conditions of his release and "together with others . . . concealed and continued to maintain and conceal financial assets in overseas accounts." (See Affidavit in Support of Government's Motion to Revoke Bail, signed by the Honorable Joanna Seybert on January 14, 2010, 06 CR 550, docket no. 766).
Plaintiff does not specify from where he was being transported. (See Compl. ¶ 24).
The next day, on January 15, 2010, a status conference was held before Judge Seybert. (See 06 CR 550, docket no. 746). Plaintiff's counsel allegedly disclosed to the court that plaintiff had suffered a panic attack and had subsequently visited the emergency room; plaintiff alleges that in the presence of unidentified deputy Marshals, Judge Seybert instructed that plaintiff be allowed to take his medication. (Compl. ¶ 27). Upon receipt of a letter from plaintiff's physician about the potential harms of depriving plaintiff of his medication, plaintiff asserts that the court again on January 16, 2010 "said that plaintiff should get his medications as soon as practicable." (Id.) However, plaintiff claims that he was not allowed to take his medication on January 17 or 18, 2010. (Id. ¶ 28).
Plaintiff does not explicitly state that it was during this conference that the emergency room visit was disclosed (see id. ¶ 26), but since this appears to be the only proceeding held in open court that day, the Court assumes that the disclosure was, in fact, made during the status conference. (See 06 CR 550, docket no. 746).
On January 20, 2010, Judge Seybert issued a Memorandum Opinion that directed Michael Sposato to provide plaintiff with the following medications: Ativan (2 milligram tablets, up to 10 tablets per day) and Ambien (10 milligram tablets, up to two tablets at bedtime). (See Compl. ¶ 31; 06 CR 550, docket no. 761). Despite this Order, plaintiff alleges that the NCCC withheld the benzodiazepine from him on January 19, 20, and 21, 2010. (Id. ¶¶ 29-31). On January 22 through January 24, 2010, no court proceedings occurred, and plaintiff claims that he did not receive his necessary medication. (Id. ¶ 33).
Plaintiff asserts that NCCC intentionally withheld the benzodiazepine medication when not in court to "detox" plaintiff from the medication, despite plaintiff's claim that abruptly cutting off plaintiff's medication in this fashion could have dire consequences to his health. (Compl. ¶¶ 34, 27). As a result, plaintiff alleges that plaintiff's counsel was forced to make an application to Judge Seybert, who allowed plaintiff to take his medication in open court. (Id. ¶¶ 29-31).
On January 27, 2010, plaintiff alleges that NCCC officials discovered that plaintiff had illicitly acquired a benzodiazepine medication, charged him with a violation, and on January 29, 2010, NCCC officials transferred plaintiff to another prison facility, the QPDF. (Id. ¶ 35).
The violation presumably was of NCCC regulations, although plaintiff does not specify.
Plaintiff avers that while at QPDF, plaintiff was not only denied his required benzodiazepine medication, but he was also put on a regimen of contra-indicated drugs. (Id. ¶ 43). Plaintiff alleges that he was placed in solitary confinement even though he was not convicted of a violent felony, nor had he violated any QPDF rules. (Id. ¶ 44). Plaintiff further claims that he did not receive his necessary benzodiazepine medication on January 29, 30, or 31, 2010, because QPDF did not administer it to him, and no court proceedings occurred on those dates. (Id. ¶ 45). On February 3, 2010, defendant Zerillo, the warden of QPDF, sent an e-mail to the Marshal defendants, stating that continuing to give plaintiff benzodiazepine while in court could put plaintiff at risk of a "major health episode." (Id. ¶ 46). The defendant Deputy Marshals allegedly delivered this message to the Court, and in reliance on both that e-mail message and on a report from NCCC that plaintiff had been "safely detoxed," the Court issued an Order on February 3, 2010 that plaintiff was no longer to receive benzodiazepine medication. (Id. ¶¶ 34, 47).
The trial began on January 25, 2010. (See 06 CR 550, docket no. 785). There was a break in the trial proceedings from January 29, 2010 until February 1, 2010. (See 06 CR 550, docket nos. 799, 812).
Following the Court's Order to terminate the benzodiazepine regime, plaintiff's personal physician submitted a letter to the Court on February 4, 2010, reiterating the harms of terminating plaintiff's benzodiazepine, and an attending physician at QPDF wrote in plaintiff's file about the potential harms to plaintiff if he was not placed on a "withdrawal protocol." (Id. ¶¶ 48-49). Defendant Gorelik, a psychiatrist at QPDF, also indicated in his notes that plaintiff was "uncomfortable," feeling "numb," and was "biting his gums because of anxiety" after being cut off from the medication. (Id. ¶ 50).
A hearing relating to the QPDF's refusal to provide the benzodiazepine to plaintiff was held on February 8, 2010 in the Eastern District of New York before the Honorable Kathleen Tomlinson, United States Magistrate Judge. On February 13, 2010, Judge Tomlinson issued a Report and Recommendation, recommending that plaintiff either be put back on the medication or be weaned off of it in accordance with the Bureau of Prison detoxification guidelines. (Id. ¶¶ 52, 55). The Report and Recommendation was adopted on February 16, 2010, and the Court Ordered defendants Zerillo, Maffia, and Gorelik (the "QPDF defendants") to administer plaintiff's medication as directed by plaintiff's personal physician. (Id. ¶ 57). Nonetheless, plaintiff claims that defendants failed to administer the required medication. (Id. ¶ 59).
Plaintiff claims that he did not receive any benzodiazepine medication from February 3 through February 16, 2010. (Id.) Plaintiff concedes that he did receive a "small dose" of a benzodiazepine in the courtroom on February 17, 2010, but did not receive any such medication that evening. Plaintiff claims he was also denied medication at the QPDF on February 18, 2010. (Id.)
Plaintiff was in court on February 17 and 18, 2010 because trial proceedings occurred on those days. (See 06 CR 550, docket nos. 850, 853).
Plaintiff avers that as a result of defendants' failure to provide him with his required benzodiazepine medication, he experienced withdrawal symptoms, including panic, anxiety, sweating, diarrhea, and loss of appetite. (Id. ¶ 63). He also suffered from lengthy anxiety attacks and "extreme unremitting pain." (Id.) Additionally, on February 16, 2010, plaintiff suffered a panic attack and seizure, losing consciousness and falling from his bed; plaintiff alleges that he was unable to breathe for a time. (Id. ¶ 66). Plaintiff asserts that correctional officers at QPDF failed to assist him, and instructed other prisoners who had come to his aid to desist. (Id. ¶¶ 66-67). Following the panic attack, plaintiff contends that he was administered contra-indicated drugs that left him feeling "numb and frozen," and he has since been diagnosed with Post-Traumatic Stress Disorder (PTSD) as a result of what allegedly has been categorized as a "near death" experience. (Id. ¶¶ 67-71).
Plaintiff asserts that the PTSD has resulted in the following health problems: head numbness, impaired balance, daily headaches, exacerbated insomnia, impaired focus and comprehension, loss of appetite (leading to weight loss of 60 pounds), difficulty communicating, and possible impaired vision. (Compl. ¶ 71).
Plaintiff originally filed his Complaint in the Southern District of New York on April 18, 2011. On May 24, 2011, the QPDF defendants filed a Motion requesting either dismissal of the Complaint or a transfer of venue. The Honorable Deborah A. Batts granted the Motion to Transfer on that same day, and the case was assigned to the Honorable Sandra L. Townes in this district. A dispute then arose because counsel for the Marshal defendants sought to have the case reassigned to Judge Seybert, since she was presiding over the related criminal matter. Judge Townes issued an Order on July 3, 2011, denying defendants' request for reassignment, finding that the case was not so related to the criminal proceeding as to necessitate a transfer. Defendants filed a Motion for Reconsideration or Reassignment to Judge Seybert on June 7, 2011, which was denied by Judge Townes on October 20, 2011.
On January 18, 2012, plaintiff filed a Motion to Amend, Supplement, and Correct his Complaint, which was referred to the undersigned on March 5, 2012. On March 19, 2012, the Marshal defendants filed a Motion to Dismiss, seeking to have the claims brought against them dismissed with prejudice. Also on March 19, 2012, plaintiff filed both a Notice of Voluntary Dismissal, seeking to dismiss the Marshal defendants without prejudice, and a letter withdrawing his Motion to Amend, Supplement, and Correct his Complaint. On March 20, 2012, Judge Townes granted plaintiff's Notice of Voluntary Dismissal, dismissing the Marshal defendants without prejudice. On March 21, 2012, the undersigned So Ordered plaintiff's request to withdraw his Motion to Amend, Supplement, and Correct his Complaint.
The undersigned then held a telephone conference on April 18, 2012, and instructed the parties to notify the Court if they could not come to an agreement regarding withdrawal or dismissal of any of plaintiff's claims. In response, the parties have made a number of arguments, to which the Court now directs its attention.
DISCUSSION
1. The Marshal Defendants
On March 19, 2012, the Marshal defendants filed a Motion to Dismiss the claims against them with prejudice. (See Marshal Defs.' Mot. to Dismiss). That same day, plaintiff filed a Notice of Voluntary Dismissal of the claims against the Marshal defendants, but requested that the dismissal be without prejudice. (See Pl.'s Notice of Dismissal). The following day, on March 20, 2012, Judge Townes granted plaintiff's Notice of Voluntary Dismissal, dismissing the Marshal defendants without prejudice. Despite the numerous subsequent interactions between plaintiff and the Marshal defendants that suggest the claims against the Marshal defendants are still pending, the matter was settled by Judge Townes' Order. Put simply, the Marshal defendants have not been a part of this case since March 20, 2012, when Judge Townes issued her Order. If the Marshal defendants desired to have the claims against them dismissed with prejudice as they initially requested in their Motion to Dismiss, they should have made such a request to Judge Townes by filing a Motion for Reconsideration. 2. The QPDF Defendants
Citations to "Marshal Defs.' Mot. to Dismiss" refer to defendants Hogan, Quaranto, and Viets' Motion to Dismiss for Failure to State a Claim, filed with the Court on March 19, 2012.
Citations to "Pl.'s Notice of Dismissal" refer to plaintiff's Notice of Voluntary Dismissal of the claims against defendants Hogan, Viets, and Quaranto, filed with the Court on March 19, 2012.
See plaintiff's letter to the Court submitted on April 30, 2012 ("Pl.'s 4/30/12 Ltr."); plaintiff's letter to the Court submitted on May 1, 2012 ("Pl.'s 5/1/12 Ltr."); the Marshal defendants' letter to the Court submitted on May 7, 2012 ("Marshal Defs.' 5/7/12 Ltr."); and plaintiff's letter to the Court submitted on May 18, 2012 ("Pl.'s 5/18/12 Ltr.").
On April 30, 2012, plaintiff submitted a letter to the Court stating that he had reached an agreement with the QPDF defendants, and that he would file papers dismissing the federal claims against the QPDF defendants with prejudice. (Pl.'s 4/30/12 Ltr.). The following day, on May 1, 2012, plaintiff submitted another letter to the Court, stating that it was his understanding that his Motion to Dismiss against the QPDF defendants, allegedly filed on March 19, 2012, was still pending. (Pl.'s 5/1/12 Ltr.). However, a review of the docket sheet shows that no Motion to Dismiss (or Notice of Withdrawal) relating to the QPDF defendants was ever filed.
In April, plaintiff stated that pursuant to the agreement he reached with the QPDF defendants, "[p]laintiff intends to file the appropriate dismissal papers regarding the Bivens claims against QPDF [d]efendants shortly." (Pl.'s 4/30/12 Ltr.).
On August 24, 2012, the QPDF defendants submitted a letter to the Court expressing concern that plaintiff never moved to dismiss the federal claims against the QPDF defendants, as plaintiff suggested he would in his April 30, 2012 letter. (QPDF Defs.' 8/24/12 Ltr.). The QPDF defendants also expressed concern that plaintiff had since filed a duplicative claim, alleging the same state law claims, in New York State Supreme Court, Nassau County, on June 6, 2012. On September 4, 2012, plaintiff responded by submitting a letter to the Court that explained plaintiff's reasons for filing a new case in state court without first dismissing the claims against the QPDF defendants in federal court. (Pl.'s 9/4/12 Ltr.). Plaintiff stated that he filed the case in state court because he had no alternative "to preserve the claims as against potential limitations defenses." (Id.)
Citations to "QPDF Defs.' 8/24/12 Ltr." refer to the letter submitted to the Court by the QPDF defendants on August 24, 2012.
The case filed in the State Supreme Court, Nassau County, on June 6, 2012, bears case number 601050/2012.
Citations to "Pl.'s 9/4/12 Ltr." refer to the letter submitted to the Court by plaintiff on September 4, 2012.
Although plaintiff failed to withdraw his claims against the QPDF defendants, and the QPDF defendants have not yet filed a Motion to Dismiss, plaintiff in this case has been on notice since the April 18, 2012 telephone conference with the undersigned that his federal claims against the QPDF defendants may be subject to dismissal in light of Minecci v. Pollard, the most recent Supreme Court precedent on Bivens claims. - U.S. - , 132 S. Ct. 617 (2012). In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court recognized "an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights." See Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). Since that time, however, the Court has allowed individuals to recover under Bivens only in rare circumstances. See Feldman v. Lyons, 852 F. Supp. 2d 274, 278-79 (N.D.N.Y. 2012). Specifically, in Bivens, the Court allowed an implied right of action based on a claim of unlawful search and seizure under the Fourth Amendment; subsequently, in Davis v. Passman, 422 U.S. 228 (1979), the Court allowed for claims of employment discrimination under the Fifth Amendment Due Process Clause; and in Carlson v. Green, 446 U.S. 14 (1980), claims for Eighth Amendment violations by federal prison officials were permitted. In all other circumstances, the Court has denied the existence of a private right of action under Bivens. See Minecci v. Pollard, 132 S. Ct. at 622.
Most recently, in Minecci v. Pollard, the Court denied a private right of action under Bivens to a plaintiff who was seeking damages for the actions of employees at a privately-operated federal prison. The Court reasoned that the plaintiff's "Eighth Amendment claim focuses upon a kind of conduct that typically falls within the scope of traditional state tort law," and in the case of plaintiff Pollard, "state tort law authorize[d] adequate alternative damages actions." Id. at 623. The Court held that no implied private right of action against the privately-operated federal prison employees was necessary because the plaintiff had the ability to sue for the allegedly unconstitutional behavior in state court under state tort law. Id. at 620. The Court reasoned that the state tort law claim was an adequate alternative because it deterred constitutional violations, and it provided a means for compensating those harmed by constitutional violations. Id. at 625. The Court also noted that "state law remedies and a potential Bivens remedy need not be perfectly congruent;" instead, they must merely provide "roughly similar compensation to victims of violations." Id. at 625.
In this case, plaintiff acknowledges in his Complaint that QPDF is a "private detention facility owned by a private, publicly traded company." (Compl. ¶ 10). Plaintiff asserts that QPDF operates "under contract with the United States government as a detention center of persons under the jurisdiction of the United States Bureau of Prisons." (Id.) Since Minecci v. Pollard holds that a Bivens action may not be pursued against employees of a privately-operated federal prison facility, plaintiff does not appear to have a viable federal claim under any set of facts against the QPDF defendants. Indeed, plaintiff seems to recognize that he has no viable federal claims, which may explain why he initially indicated his intention to dismiss and why he has filed identical state law claims in state court.
Thus, although defendants have not formally moved to dismiss, it appears that plaintiff's Bivens claims against the QPDF defendants would be subject to dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim in light of Minecci. If the federal constitutional claims against the QPDF defendants were dismissed with prejudice, the state law claims brought against the QPDF defendants in federal court would also be subject to dismissal. "Where federal claims in an action premised on federal question jurisdiction are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well." Emerson v. City of New York, 740 F. Supp. 385, 396 (S.D.N.Y. 2010) (quoting Castellano v. Board of Trustees, 937 F.2d 752, 758 (2d Cir. 1991)). However, in this case, since neither party has actually moved to dismiss either the federal or state law claims against the QPDF defendants, (see discussion supra at 9), the Court directs plaintiff to submit a motion either withdrawing his claims against the QPDF defendants in this action or indicating an intention to proceed in this Court, but not in state court. See 28 U.S.C. § 1367. If plaintiff continues to pursue his claims in both federal and state court, the Court respectfully recommends that the QPDF defendants be allowed to move to dismiss. The Court echoes the QPDF defendants' concerns regarding plaintiff's pending state law action (see QPDF Defs.' 8/24/12 Ltr.) and the inefficiency and potential for incompatible findings.
Although the Court may dismiss claims sua sponte, pursuant to Federal Rule of Civil Procedure 12(b)(6), when a party fails to state a claim upon which relief can be granted, Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curium), the plaintiff must first have received sufficient notice and be given an opportunity to be heard. See Wachtler v. County of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994) (quoting Leonhard v. United States, 633 F.2d 599, 609 n.11 (2d Cir. 1980), cert. denied, 451 U.S. 908 (1981); Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam)). Whether the court may dismiss a claim with prejudice depends on whether relief could be granted based on any set of facts. See Graham v. Bank of America, 432 Fed. Appx. 41 (2d Cir. 2011). In this case, the Court declines to recommend dismissal in the absence of a motion from either party.
3. Defendant Sposato
Defendant Sposato, Acting Sheriff of Nassau County and Warden of NCCC, filed an answer to plaintiff's Complaint on June 14, 2011 and opposed plaintiff's Motion to Amend, Supplement, and Correct his Complaint, which was filed on February 24, 2012, but was subsequently withdrawn by plaintiff. In his May 1, 2012 letter to the Court, plaintiff indicates that he filed a Motion to Dismiss the claims against defendant Sposato without prejudice on March 19, 2012; however, as noted earlier, the Court never received such a motion. (See Pl.'s 5/1/12 Ltr.).
Since no motion has been filed, defendant Sposato has not made his position known to the Court. Given that the issues relating to plaintiff's claims against Sposato are complex, and therefore, would benefit from briefing by the parties before a decision is made, the Court respectfully recommends that the issue of whether defendant Sposato should be dismissed from this action be considered only once plaintiff or defendant Sposato squarely presents the issue to the court.
CONCLUSION
The Court respectfully recommends that: (1) the Marshal defendants' letter motion seeking dismissal of the claims against them with prejudice be deemed moot in light of Judge Townes' March 20, 2012 Order; (2) plaintiff be directed to either submit a motion withdrawing his claims against the QPDF defendants in this action or indicating an intention to proceed against the QPDF defendants in this action and not in the state court action; (3) if plaintiff continues to pursue his claims against the QPDF defendants in both federal and state court, then the QPDF defendants be allowed to move to dismiss; and (4) given the absence of any formal motion to dismiss the claims against defendant Sposato, the court refrain from any action at this time.
Any objections to this Report and Recommendation must be filed with the Clerk of the Court, with a copy to the undersigned, within fourteen (14) days of receipt of this Report. Failure to file objections within the specified time waives the right to appeal the District Court's order. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72(b); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).
The Clerk is directed to send copies of this Report and Recommendation to the parties either electronically through the Electronic Case Filing (ECF) system or by mail.
SO ORDERED. Dated: Brooklyn, New York
November 26, 2012
/s/_________
Cheryl L. Pollak
United Stales Magistrate Judge
Eastern District of New York