Opinion
9:20-CV-1115 (TJM/TWD)
11-04-2021
BAHSID MCLEAN, Plaintiff, v. AMY FERGUSON, CARL J. KOENIGSMANN, WAYNE VISALLI, and WILLIAM FENNESSEY, Defendants.
APPEARANCES: OF COUNSEL: BAHSID MCLEAN Plaintiff, pro se 16-A-5033 Auburn Correctional Facility HON. LETITIA JAMES Attorney General for the State of New York Counsel for Defendant AIMEE COWAN, Assistant Attorney General
APPEARANCES:
OF COUNSEL:
BAHSID MCLEAN
Plaintiff, pro se
16-A-5033
Auburn Correctional Facility
HON. LETITIA JAMES
Attorney General for the State of New York
Counsel for Defendant
AIMEE COWAN, Assistant Attorney General
ORDER AND REPORT-RECOMMENDATION
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
Bahsid McClean (“Plaintiff”), an inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), commenced this pro se action pursuant to 42 U.S.C. § 1983, asserting his constitutional rights were violated at Mid-State Correctional Facility (“Mid-State C.F.”). (Dkt. No. 11 (the “amended complaint”).) The Honorable Thomas J. McAvoy, Senior United States District Judge, reviewed the amended complaint in accordance with 28 U.S.C. § 1915, and found Plaintiff's state law medical malpractice, negligence, and Eighth Amendment deliberate indifference claims against Amy Ferguson (“Ferguson”), Carl J. Koenigsmann (“Koenigsmann”), Wayne Visalli (“Visalli”), and William Fennessey (“Fennessey”) (collectively “Defendants”) survived initial review and required a response. (Dkt. No. 20.)
The amended complaint also asserted claims against a defendant named “Nurse Rowick.” However, those claims were dismissed without prejudice on August 16, 2021, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. (Dkt. No. 43.)
Rather than answering, Defendants have moved to dismiss the amended complaint for failure to state a claim and for lack of subject matter jurisdiction. (Dkt. No. 23 (involving just Ferguson); Dkt. No. 41 (involving Koenigsmann, Visalli, and Fennessey).) These motions have been referred to this Court for a Report-Recommendation. For the reasons that follow, the Court recommends granting Defendants' motions.
The background section is derived from allegations in Plaintiff's amended complaint and accepted as true for the purpose of this motion. To supplement these allegations, Defendants filed certain documents with their motions to dismiss and Plaintiff previously filed documents related to his medical treatment. (Dkt. No. 15-1 (Plaintiff's submission of medical records); Dkt. No. 23-1 (Defendants' attorney declaration describing the filed exhibits including Plaintiff's medical records and relevant grievance documents).) For purposes of deciding this motion, the Court finds it can consider grievance documents and medical records related to the claims in this action because they are incorporated by reference in Plaintiff's amended complaint. See Xiao Qing Liu v. New York State Dep't of Health, No. 16 CIV. 4046 (ER), 2017 WL 3393944, at *4 (S.D.N.Y. Aug. 7, 2017) (considering medical records); Savage v. OFC. Michael Acquino, No. 13-CV-6376, 2016 WL 5793422, at *2 n.4 (W.D.N.Y. Sept. 30, 2016) (considering grievance documents). Where relevant, the Court will note when it is pulling facts from these record documents.
In medical records filed on the docket, it appears Plaintiff was diagnosed with “MILD RETROLISTHESIS OF L6 ON S1, MILD LEFTWARD SCOLIOSIS, SMALL DISC BULGES/HERNIATIONS AT ¶ 1-2 THROUGH L5-S1” after imaging was taken on November 19, 2017. (Dkt. No. 15-1 at 3.) Those records further show that, during his time at Attica Correctional Facility, Plaintiff was approved for eight physical therapy appointments to address his back pain. Id. at 5-12. He participated in physical therapy in June and July of 2019. Id. Some of the assigned exercises included press ups, planks, and bird dogs. See, e.g., id. at 17. It also appears Plaintiff was prescribed “Mobic 15 mg” to start on December 5, 2019, and to end on June 2, 2020. Id. at 38.
“Mobic” is the brand name for the drug meloxicam.
In his amended complaint, Plaintiff asserts his scoliosis causes “severe pain, ” and he was denied his prescription for “meloxicam” which “alleviates that pain.” (Dkt. No. 11 at 5.) Specifically, Plaintiff alleges that, when he arrived at Mid-State C.F. on February 5, 2020, defendant nurse practitioner Ferguson failed to provide the medication he was prescribed despite his documented history of scoliosis and back pain. Id. According to Plaintiff, Ferguson explained to him that, “because [he] was exercising when she came to see [him], [he] didn't need any pain medication and that [he] should use over the counter treatment even though [he] had informed her of [his] spinal condition and the immence (sic) amount of pain [he] was in[.]” Id. at 6. Plaintiff further contends his medical records demonstrate that over the counter pain medication does not work to alleviate his symptoms. Id. at 7. Thus, Plaintiff asserts he suffered “extreme pain” after his appointment with Ferguson because he was not provided the appropriate pain medication. Id. at 5.
Plaintiff alleges he filed a grievance related to Ferguson's decision after nurses Rowick and Visalli urged him to do so. Id. at 7. Plaintiff claims Visalli knew Ferguson's action was unprofessional and he had an obligation to report the “misconduct” but failed to do so. Id. In response to Plaintiff's grievance, Ferguson noted: “upon approaching the cell 2/5/20 PT was observed doing full push ups in his cell, 0 signs of pain or discomfort . . . 0 indication for Rx pain meds at this time.” (Dkt. No. 23-4 at 9.) Plaintiff claims Fennessey, the superintendent at Mid-State C.F., improperly denied his grievance. (Dkt. No. 11 at 7.) In that grievance denial on February 21, 2020, Fennessey noted “[m]edical . . . reports that there is no indication for prescription pain medication . . . .” (Dkt. No. 23-4 at 6.) Plaintiff asserts Fennessey “did not have [his] grievance properly investigated” and instead relied upon the reports of the same medical professional-Ferguson-about whom he was complaining. (Dkt. No. 11 at 7.) Notably, in an email on April 23, 2020, DOCCS personnel confirm Plaintiff was prescribed meloxicam for pain. (Dkt. No. 23-4 at 8.) Thus, Plaintiff argues that, had Fennessey made any independent effort to consider his medical claims, Fennessey would have discovered he was prescribed pain medication and acted on his grievance.
After his grievance was denied, Plaintiff alleges he wrote to Deputy Commissioner and Chief Medical Officer Koenigsmann explaining that he was denied his prescription medicine. (Dkt. No. 11 at 5.) According to Plaintiff, Koenigsmann responded that he did not have a prescription for pain medication. Id. Plaintiff asserts that, if Koenigsmann properly investigated his complaint, he would have discovered he was prescribed meloxicam prior to coming to Mid-State C.F. Id. at 7.
Plaintiff claims it was not until he was moved to Auburn Correctional Facility on March 18, 2020, that he finally started to receive his prescription pain medication. Id. at 6.
Based on these allegations, as noted above, Plaintiff asserts Eighth Amendment deliberate indifference, negligence, and medical malpractice claims against Ferguson, Koenigsmann, Visalli, and Fennessey.
Ferguson was served before the other defendants and moved to dismiss the claims against her. (Dkt. No. 23.) For her part, she argues “that the decision to prescribe one form of pain medication in place of another does not constitute deliberate indifference to a prisoner's serious medical needs.” (Dkt. No. 23-5 at 10 (citations omitted) (emphasis in the original).) Thus, Ferguson argues that “Plaintiff's difference in opinion as to the appropriate pain medication he should have received does not support a claim that [she] was deliberately indifferent to his ‘serious medical need.'” Id. at 12. Ferguson also suggests the amended complaint fails to allege she acted with a culpable mindset because her reason for not giving Plaintiff prescription medication-that he was doing pushups before he was evaluated-suggests she did not know of and disregard a serious risk to Plaintiff's health. Id. at 13.
For his part, Koenigsmann argues he should be dismissed because he retired from his position of Deputy Commissioner and Chief Medical Officer for DOCCS on October 30, 2018, and, thus, could not have been the person involved in this claim. (Dkt. No. 41-4 at 11.) Koenigsmann requests that the Court consider his declaration regarding his retirement in deciding this motion or convert this motion to a motion for summary judgment to have him dismissed. Id. In any event, however, Koenigsmann argues Plaintiff has failed to demonstrate that he acted with deliberate indifference. Id. at 12.
Similarly, Visalli filed a declaration asserting he did not work for DOCCS in any capacity in 2020. Id. at 13. However, he also argues the amended complaint fails to allege he acted with deliberate indifference. Id. at 13-14.
Fennessey contends he should be dismissed because he merely denied an administrative grievance regarding Plaintiff's medical treatment and “‘the review, denial or affirmance of a denial of a grievance is insufficient to establish personal involvement' of a supervisor.” Id. at 15 (citation omitted).
Finally, each defendant argues the state law claims should be dismissed pursuant to New York Corrections Law Section 24 for lack of subject matter jurisdiction. (Dkt. No. 23-5 at 14; Dkt. No. 41-4 at 15-17.)
Plaintiff did not respond to either of Defendants' motions. However, this Court is still required to determine whether the motions are meritorious. See McCall v. Pataki, 232 F.3d 321, 323 (2d Cir. 2000) (“If a complaint is sufficient to state a claim on which relief can be granted, the plaintiff's failure to respond to a Rule 12(b)(6) motion does not warrant dismissal.”); Girotto v. Andrianna Shamaris Inc., No. 19-CV-913, 2019 WL 5634199, at *2 (S.D.N.Y. Oct. 31, 2019) (“[E]ven an unopposed motion to dismiss must demonstrate that the complaint has failed to state a claim.”); L.R. 7.1(a)(3) (“Where a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the non-moving party's failure to file or serve any papers as this Rule requires shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause is shown.” (emphasis added)).
II. MOTION TO DISMISS
A. Standard of Review
A defendant may move to dismiss a complaint for “failure to state a claim upon which relief can be granted” under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion tests the legal sufficiency of the complaint and whether it conforms to Rule 8(a)(2) of the Federal Rules of Civil Procedure. To survive a motion to dismiss, the 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)). “Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense . . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Id. at 679 (internal citation and punctuation omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
A complaint may be dismissed pursuant to Rule 12(b)(6) only where it appears there are not “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. While Rule 8(a)(2) “does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me-accusation.” Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). In other words, a complaint which “tenders ‘naked assertion[s]' devoid of ‘further factual enhancement'” does not suffice. Id. (citation omitted).
“In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Where a pro se complaint fails to state a cause of action, the court generally “should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and internal quotation marks omitted). An opportunity to amend is not required where “[t]he problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Id.
B. Eighth Amendment Claims
“[D]eliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain . . . proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (internal quotation marks and citation omitted). To state a claim for deliberate indifference to a serious medical need, a plaintiff's claim must satisfy both objective and subjective elements. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). First, the alleged deprivation “must be, in objective terms, sufficiently serious.” Id. (quotations and citations omitted). “Second, the charged official must act with a sufficiently culpable state of mind.” Id.
Under the objective prong, the inmate's medical need or condition must be “a serious one.” Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003). The objective component has two subparts. “The first inquiry is whether the prisoner was actually deprived of adequate medical care, ” keeping in mind that only “reasonable care” is required. See Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 845-47 (1970)). “Second, the objective test asks whether the inadequacy in medical care is sufficiently serious” by examining “how the offending conduct is inadequate and what harm, if any, the inadequacy has caused or will likely cause the prisoner.” Id. at 280 (citing Helling v. McKinney, 509 U.S. 25, 32-33 (1993)).
To satisfy the subjective prong, a prison official or medical staff member must have been aware of a substantial risk that the inmate would suffer serious harm as a result of his or her actions or inactions. See Salahuddin, 467 F.3d at 279-80; see also Farmer, 511 U.S. at 837 (“[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”).
Here, Plaintiff alleges he suffers from scoliosis and that condition causes him severe pain and discomfort. (Dkt. No. 11 at 5.) The Court notes Defendants casually contest Plaintiff's allegation that he was diagnosed with scoliosis and that he suffered pain. (Dkt. No. 23-5 at 10.) Specifically, they assert “[a] list of his active and inactive medical conditions maintained by . . . DOCCS . . . does not reflect” a diagnosis for scoliosis. Id. However, the Court is required to accept Plaintiff's allegations as true for the purpose of this motion and, moreover, there are medical records on the docket that seem to indicate Plaintiff was diagnosed with scoliosis in 2017. (Dkt. No. 15-1 at 3.)
Defendants' primary argument with respect to Plaintiff's claim is that Ferguson's decision to treat Plaintiff's back pain with over the counter medication instead of prescription medication amounts to a mere disagreement in treatment which is not actionable. (Dkt. No. 23-5 at 8-14.) To that end, it is well established that “[t]he decision to prescribe one form of pain medication in place of another does not constitute deliberate indifference to a prisoner's serious medical needs.” Rush v. Fischer, 923 F.Supp.2d 545, 555 (S.D.N.Y. 2013), aff'd sub nom. Rush v. Canfield, 649 Fed.Appx. 70 (2d Cir. 2016) (summary order).
In Rush, for example, the plaintiff alleged the nurse “at Sing Sing acted with deliberate indifference to his serious medical needs when she did not provide him with the narcotic medication Percocet.” Rush, 923 F.Supp.2d at 554. The nurse, however, did provide him with ibuprofen to “manage his pain.” Id. at 554-55. The court found that “the plaintiff has provided no factual allegations that the decision to provide ibuprofen in lieu of Percocet deviated from reasonable medical practice for the treatment of his pain, much less that [the nurse] acted with a culpable state of mind in making this decision.” Id. at 554. In sum, the court found “[t]he plaintiff's allegations demonstrate a ‘mere disagreement over the proper treatment' of his pain, which ‘does not give rise to an Eighth Amendment violation.'” Id. (quoting Chance, 143 F.3d at 703.) Thus, Rush stands for the proposition that, “[t]o meet the deliberate indifference threshold, a plaintiff must set forth facts in the record establishing that the decision to prescribe a certain medication, and a determination concerning the severity of the medical condition presented, was based on something other than medical judgment.” Aikens v. Herbst, No. 16-CV-772S, 2017 WL 1208666, at *3 (W.D.N.Y. Apr. 3, 2017) (citing Rush, 923 F.Supp.2d at 555).
Similarly, in Harris v. Westchester Cty. Med. Ctr., No. 08 CIV. 1128 RJH, 2011 WL 2637429 (S.D.N.Y. July 6, 2011), the plaintiff raised a putative deliberate indifference claim against a defendant physician assistant (“PA”) for giving him Tylenol instead of the Vicodin that his doctor had prescribed. Id. at *1. The court swiftly rejected this allegation as a basis for an Eighth Amendment claim because “these allegations state only the bare fact that [the PA] took those actions, and give no reason to suspect that [she] acted for reasons that would subject her to Eighth Amendment liability.” Id. at *3 (citing Ravenell v. Van der Steeg, No. 05 Civ. 4042(WHP), 2007 WL 765716, at *6 (S.D.N.Y. Mar. 14, 2007) (“That Magill disagreed with Foster does not transform Foster's conservative recommendation into cruel and unusual punishment. The question of what diagnostic techniques and treatments should be administered to an inmate is a ‘classic example of a matter for medical judgment'; accordingly, prison medical personnel are vested with broad discretion to determine what method of care and treatment to provide to their patients.” (quoting Estelle, 429 U.S. at 107)); McKenna v. Wright, No. 01 Civ. 6571(WK), 2002 WL 338375, at *8 (S.D.N.Y. Mar. 4, 2002) (“The mere fact that the defendant physicians may have made a different medical decision with respect to Plaintiff's treatment than that purportedly recommended by Dr. Maliakkal does not indicate that they acted for culpable reasons.”)).
Here, the Court finds the facts as alleged in the amended complaint do not rise to a level of deliberate indifference. Rather Plaintiff's allegations amount to a “mere disagreement over the proper treatment” of his pain, which “does not give rise to an Eighth Amendment violation.” Chance, 143 F.3d at 703; see also Hill v. Curcione, 657 F.3d at 123 (“Issues of medical judgment cannot be the basis of a deliberate indifference claim where evidence of deliberate indifference is lacking.”). Specifically, Plaintiff appears to rest his claim on the basis that, because he was previously prescribed meloxicam, he was entitled to receive meloxicam moving forward. However, the record establishes Ferguson exercised her medical judgment to determine Plaintiff did not require prescription medication because he was observed working out and in no acute distress. (Dkt. No. 11 at 5; Dkt. No. 23-4 at 9.) To be sure, Ferguson may be faulted for failing to look into his past medical records; however, that failure alone is insufficient to find she was deliberately indifferent to Plaintiff's medical needs. In sum, the Court finds Ferguson's decision to provide over the counter medication in lieu of meloxicam was a reasonable exercise in medical judgment and is not actionable.
To that end, the Court recognizes the argument that, had Ferguson investigated his medical condition, she could have discovered Plaintiff's pushups were related to his physical therapy exercises and that over the counter medication previously did not work to alleviate his pain. Though these allegations may state a claim for medical malpractice or negligence, they do not rise to a level of deliberate indifference. See Estelle, 429 at 106 n.14 (“a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”); see also Hathaway, 37 F.3d at 68 (“mere medical malpractice does not constitute an Eighth Amendment violation”).
The Court further finds that the amended complaint does not state a claim against Vissali. Specifically, the only allegation in the amended complaint is that he failed to report Ferguson's decision to deny him prescription medication. (Dkt. No. 11 at 7.) However, there is no indication that Visalli acted with deliberate indifference merely because he failed to report Ferguson's alleged mistake. See Abreu v. Farley, No. 6:11-CV-06251 EAW, 2019 WL 1230778, at *29 (W.D.N.Y. Mar. 15, 2019) (failure to report alleged injury is insufficient to state a deliberate indifference claim) (citing White v. Rock, No. 9:13-CV-392 (GTS/CFH), 2016 WL 11478222, at *12 (N.D.N.Y. Feb. 23, 2016) (“The claim that a defendant failed to file an injury report is insufficient to satisfy the subjective prong of the deliberate indifference test.”), report and recommendation adopted, 2016 WL 1248904 (N.D.N.Y. Mar. 29, 2016); Harris v. Howard, No. 907-CV-1065 TJM/GJD, 2009 WL 537550, at *12 (N.D.N.Y. Mar. 3, 2009) (“Failure to complete reports is simply not an Eighth Amendment claim under any view of the facts.”)).
As noted above, Visalli filed a declaration suggesting he did not work for DOCCS during the relevant time. (Dkt. No. 41-3.) The Court will not consider this declaration in deciding the motion to dismiss because it is ultimately unnecessary.
Likewise, the Court finds the amended complaint fails to state a claim against Koenigsmann and Fennessey. To that end, “[t]he dismissal of the Section 1983 claims against the defendants actually involved in [Plaintiff's] ongoing medical care mandates dismissal of the supervisory liability claim[s]” against Koenigsmann and Fennessey. See Gonzalez v. Wright, 665 F.Supp.2d 334, 356 (S.D.N.Y. 2009). However, even were the Court to consider the claims on their own, the amended complaint would still fail to assert claims against these supervisory officials. First, as Defendants contend, the amended complaint simply does not support the inference that Koenigsmann “knew of and disregarded a substantial risk from the alleged discontinuance of pain medication by Nurse Ferguson in the sense that [he] was both ‘aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed], and [that] he . . . also dr[e]w the inference.'” (Dkt. No. 41-4 at 12 (citations omitted).) Moreover, “‘[i]t is clear that affirming the administrative denial of a prison inmate's grievance by a high-level official is insufficient to establish personal involvement under section 1983[.]'” Viera v. Sheahan, No. 6:17-CV-06844 EAW, 2021 WL 1226482, at *5 (W.D.N.Y. Mar. 31, 2021) (quoting Morales v. Fischer, 46 F.Supp.3d 239, 255 (W.D.N.Y. 2014)).
Koenigsmann filed a declaration asserting he had retired from DOCCS as of October 30, 2018. (Dkt. No. 41-2.) However, as with Visalli's declaration, the Court declines to consider it because it is unnecessary.
In sum, the Court finds Plaintiff's complaint fails to state an Eighth Amendment claim against any of the named defendants. Accordingly, the Court recommends granting Defendants' motions. However, giving special solicitude to Plaintiff, the Court recommends the dismissal be without prejudice and with leave to amend. See Cuoco, 222 F.3d at 112.
C. State Law Claims
Finally, the Court finds Plaintiff's state law claims of negligence and medical malpractice are barred by New York Correction Law Section 24, which provides that “[n]o civil action shall be brought in any court of the state . . . against any officer or employee of [DOCCS] . . . in his or her personal capacity, for damages arising out of any act done or the failure to perform any act within the scope of employment and in the discharge of duties by such officer or employee.” N.Y. Corr. Law § 24; see also Baker v. Coughlin, 77 F.3d 12, 15 (2d Cir. 1996) (holding that Section 24 applies to claims in federal court). “Courts in the Second Circuit have long held that Section 24 precludes a plaintiff from raising state law claims in federal court against state employees in their personal capacities for actions arising within the scope of their employment.” Davis v. McCready, 283 F.Supp.3d 108, 123 (S.D.N.Y. 2017) (collecting cases).
Courts consider a variety of factors when determining a correction officer's scope of employment, including “the connection between the time, place and occasion for the act; . . . whether the act is one commonly done by any employee; the extent of the departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated.” Degrafinreid v. Ricks, 452 F.Supp.2d 328, 332-33 (S.D.N.Y. 2006) (quoting Riviello v. Waldron, 47 N.Y.2d 297, 303 (N.Y. 1979)). Moreover, “an employee will be considered within the scope of his employment so long as he is discharging his duties, ‘no matter how irregularly, or with what disregard of instructions.'” Degrafinreid, 452 F.Supp.2d at 333 (quoting Cepeda v. Coughlin, 128 A.D.2d 995, 996 (3d Dep't 1987)).
Here, the amended complaint alleges Defendants were DOCCS' employees and were performing their duties when the alleged malpractice and negligence took place. Accordingly, insofar as Plaintiff asserts state law claims against Ferguson, Visalli, Fennessey, and Koenigsmann, the Court finds those claims should be dismissed pursuant to Corrections Law Section 24 for lack of subject matter jurisdiction. See, e.g., Heyliger v. Gebler, 496 F.Supp.2d 250, 253 (W.D.N.Y. 2007).
If an action is dismissed for lack of subject matter jurisdiction, the court is without power to dismiss with prejudice, and any dismissal must be without prejudice. See Faculty v. New York Univ., 11 F.4th 68, 78 (2d Cir. 2021) (“Article III deprives federal courts of the power to dismiss a case with prejudice where federal subject matter jurisdiction does not exist.”). However, the court may dismiss without prejudice, while denying leave to amend based on the lack of subject matter jurisdiction. See Guillory v. Bishop Nursing Home, 5:21-CV-410 (MAD), 2021 WL 2431259, at *3 (N.D.N.Y. June 15, 2021) (dismissing the complaint “without prejudice” and “without leave to amend” because the Court “lack[ed] . . . subject matter jurisdiction.”).
III. CONCLUSION
For the reasons stated above, the Court finds Plaintiff's amended complaint fails to state an Eighth Amendment claim against Defendants and this Court lacks subject matter jurisdiction to consider his state law claims.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendant Ferguson's motion to dismiss for failure to state a claim and for lack of subject matter jurisdiction (Dkt. No. 23) be GRANTED WITHOUT PREJUDICE and WITH LEAVE TO AMEND only the Eighth Amendment claim; and it is further
RECOMMENDED that Defendants Visalli, Koenigsmann, and Fennessey's motion to dismiss for failure to state a claim and for lack of subject matter jurisdiction (Dkt. No. 41) be GRANTED WITHOUT PREJUDICE and WITH LEAVE TO AMEND only the Eighth Amendment claims; and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec 'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).