Opinion
Civil Action 20-3640
06-17-2021
MELISSA REED, as Administrator of the Estate of Jonathan Tavares, Plaintiff, v. CITY OF PHILADELPHIA, BRUCE HERDMAN, Ph.D., COMMISSIONER BLANCHE CARNEY, JOHN DOE CORRECTIONS OFFICERS 1-20, CORIZON HEALTH, INC., MARIE HOLDER, M.D., ROMEKA ROBINSON, LPN, SCHARDE JUBILEE, LPN, EUJUDICE FEVRIER, TIFFANY THOMAS, LPN, DELENE ROLEN, RN, MICHELE LAWRENCE, LPN, EMMANUEL MARINHO, RN, JOHN DOE CORIZON EMPLOYEES 1-10, JOHN DOE CORIZON POLICY MAKERS 1-5, Defendants.
MEMORANDUM
DuBOIS, J.
I. INTRODUCTION
This is a civil rights survival and wrongful death action arising out of Jonathan Tavares's death while in custody at the Curran-Fromhold Correctional Facility in Philadelphia, Pennsylvania (“CFCF”). Plaintiff, Melissa Reed, filed suit as Administrator of the Estate of Jonathan Tavares against several defendants, including the City of Philadelphia (“the City”), Commissioner Blanche Carney, Bruce Herdman, Ph.D. and Marie Holder, M.D. Plaintiff asserts a claim under 42 U.S.C. § 1983 against the City for violation of Tavares's Fourteenth Amendment rights. Plaintiff also asserts § 1983 claims under against Dr. Holder, Commissioner Carney, and Dr. Herdman for their alleged deliberate indifference to Tavares's serious medical needs. Plaintiff seeks, inter alia, compensatory and punitive damages in connection with all of her claims.
Plaintiff also asserts a negligence claim against Dr. Holder, which is not addressed in the pending Motions.
Presently before the Court are the Motion to Dismiss for Failure to State a Claim filed by the City, Commissioner Blanche Carney and Dr. Herdman, and the Partial Motion to Dismiss Plaintiff's Amended Complaint filed by Dr. Holder. For the reasons set forth below, the Motion filed by the City, Commissioner Blanche Carney and Dr. Herdman is granted in part and denied in part, and the Motion filed by Dr. Holder is denied.
II. BACKGROUND
The facts set forth in the Amended Complaint, accepted as true for purposes of resolving the Motions to Dismiss, may be summarized as follows:
“On or about May 8, 2018, Jonathan Tavares was arrested on charges of aggravated assault and related offenses” arising out of a dispute with his wife. Am. Compl. ¶¶ 39, 65. He was subsequently incarcerated at CFCF as a pretrial detainee. Id. ¶ 40. Dr. Holder-a physician employed by defendant Corizon Health, Inc., working at CFCF-conducted Tavares's initial medical intake interview. Id. ¶ 16. During that interview, “Tavares disclosed a recent history of hospitalization for a mental health problem and suicidal ideation.” Id. ¶¶ 49-50. “Despite this disclosure, Dr. [Holder] improperly charted that Tavares did not have a history of suicidal ideation.” Id. ¶ 50. She “repeated this incorrect medical history on each of her subsequent evaluations, as did other Corizon employees and behavioral health workers.” Id. ¶ 51.
On or about June 15, 2018, Tavares posted bail and was released on house arrest. Id. ¶¶ 55, 66. Three days later, on June 18, 2018, he was rearrested for violating the terms of his house arrest by “fight[ing] with his wife.” Id. ¶ 66. “Upon his return to prison [Tavares] complained of ‘depression, cannot sleep, feeling agitated/Irritated/Angry, Feeling Anxious/Panic Attack.'” Id. ¶ 67. “[Tavares] was exhibiting signs of depression, sadness, crying, and worrying.” Id. ¶ 74. “On or about June 21, and again on June 22, [Tavares] was seen in response to a behavioral health sick call due to depression and/or other warning signs indicative of mental health problems concerning for self-harm.” Id. ¶ 77. During this time, Tavares “had written to his mother . . . that he did not want to live anymore” and, plaintiff alleges that “the prison was reviewing and reading all prison mail.” Id. ¶ 85.
On or about June 25, 2018, Dr. Holder re-evaluated Tavares. Id. ¶ 59. During that re-evaluation, he denied any history of suicidal ideation. Id. ¶¶ 61-62. Dr. Holder “recommended his admission into the ‘BH Caseload' which indicated his need to be monitored by behavioral health.” Id. ¶ 78. Dr. Holder met with Tavares again on or about June 28, 2018, but “failed to appropriately chart this interaction, and in fact made no medical note in the chart at all . . . .” Id. ¶ 80. “After Dr. [Holder's] direction and medical order to place [Tavares] into the behavioral health caseload, he was seen only twice by any mental, behavioral or social health worker . . . .” Id. ¶ 83.
Dr. Holder prescribed a drug, Pamelor, for Tavares. Id. ¶ 46. It “has a known risk and/or side effect of increasing suicidal ideation in individuals.” Id. ¶¶ 47. Pamelor “is not recommended, and strongly warned against for use in any individual who has previously, or recently experienced suicidal ideation.” Id. ¶ 48. Defendants administered Pamelor, among other medications, to Tavares and noted their administration in his medical chart. Id. ¶ 56. However, they “failed to confirm that [Tavares] was actually ingesting this medication.” Id. ¶ 57.
“During this time [Tavares] was spiraling out of control in depression and was actively plotting a plan of self harm and suicide by ‘cheeking' his pills.” Id. ¶ 84. “‘Cheeking' refers to the act of a patient hiding medications between their gums and cheeks.” Id. ¶ 53. “Tavares ‘cheeked' medications for several days in order to purposely take a lethal dose, which he did on or about July 28, 2018.” Id. ¶ 54. “On or about August 1, 2018, [Tavares] was pronounced dead.” Id. ¶ 44.
On October 21, 2020, the City, Commissioner Carney and Dr. Herdman filed the Motion to Dismiss for Failure to State a Claim (Document No. 32) (“City's Motion”). Plaintiff filed a Response on November 4, 2020 (Document No. 37). On November 2, 2020, Dr. Holder filed the Partial Motion to Dismiss Plaintiff's Amended Complaint (Document No. 33) (“Dr. Holder's Partial Motion”). Plaintiff filed a Response on November 16, 2020 (Document No. 38). The Motions are thus ripe for decision.
III. LEGAL STANDARD
The purpose of a 12(b)(6) motion to dismiss is to test the legal sufficiency of the complaint. Liou v. Le Reve Rittenhouse Spa, LLC, No. 18-5279, 2019 WL 1405846, at *2 (E.D. Pa. Mar. 28, 2019) (DuBois, J.). To survive a motion to dismiss, a plaintiff must allege “sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In assessing the plausibility of a plaintiff's claims, a district court first identifies those allegations that constitute nothing more than mere “legal conclusions” or “naked assertion[s].” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 564 (2007). Such allegations are “not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. The court then assesses “the ‘nub' of the plaintiff['s] complaint-the well-pleaded, nonconclusory factual allegation[s]”-to determine whether it states a plausible claim for relief. Id. at 680.
IV. APPLICABLE LAW
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that the defendant, acting under color of state law, deprived him of a right secured by the United States Constitution or federal law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). Typically, a prisoner challenging the conditions of his confinement or the adequacy of his medical treatment asserts claims under the Eighth Amendment's prohibition of cruel and unusual punishment. In this case, however, the Eighth Amendment does not apply because, at all relevant times, plaintiff was a pretrial detainee-not a convicted prisoner. See Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003). Instead, plaintiff's claims are evaluated, in part, under the Due Process Clause of the Fourteenth Amendment, which encompasses the same standards applied under the Eighth Amendment. Bell v. Wolfish, 441 U.S. 520, 538 (1979); see also Montgomery v. Ray, 145 Fed.Appx. 738, 740 (3d Cir. 2005) (“While the due process rights of a pre-trial detainee are at least as great as the Eighth Amendment protections available to a convicted prisoner, the proper standard [is] . . . whether the conditions of confinement (or here, inadequate medical treatment) amounted to punishment prior to an adjudication of guilt.”).
The Court analyzes plaintiff's § 1983 claim against the City under the standard of municipal liability enunciated in Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). See Natale, 318 F.3d at 583. “[A] municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell, 436 U.S. at 691. Rather, to state a claim against a municipal entity under § 1983, a plaintiff must allege (1) a constitutional violation by a state actor (2) that was caused by a municipal policy or custom. Id. at 694; see also Mulholland v. Gov't Cty. of Berks, Pa., 706 F.3d 227, 237 (3d Cir. 2013). A policy is established when a decisionmaker with final authority “issues an official proclamation, policy, or edict.” Mulholland, 706 F.3d at 237. Practices that are “so permanent and well-settled as to virtually constitute law” are considered custom. Id.
V. DISCUSSION
The following claims are asserted in the Amended Complaint and addressed in the pending Motions. Against Dr. Herdman, Commissioner Carney and Dr. Holder, plaintiff alleges violations of 42 U.S.C. § 1983 for their “deliberate indifference to [Tavares's] serious medical needs” (Counts I and II). Against the City, plaintiff alleges violations of §§ 1983 and 1988 for maintaining “a custom and policy of unconstitutional conduct” (Count III) (“Monell claim”). Against all defendants, plaintiff alleges a wrongful death action (Count VI) and a survival action (Count VII). In the City's Motion, filed jointly with Dr. Herdman and Commissioner Carney, defendants move to dismiss all claims against them. In Dr. Holder's Partial Motion, she moves to dismiss only the claims asserted against her in Counts I and II and plaintiff's request for punitive damages in connection with those claims. The Court addresses each Motion in turn.
A. City's Motion
In their joint Motion with the City, Dr. Herdman and Commissioner Carney argue that the § 1983 claims against them should be dismissed on the ground that plaintiff does not allege that they were personally involved in the claimed constitutional violations. Plaintiff does not oppose the Motion to the extent it seeks dismissal with prejudice of the claims against Dr. Herdman and Commissioner Carney and the Court determines that such dismissal is warranted. The Court thus grants that part of the City's Motion which seeks dismissal of the claims against Dr. Herdman and Commissioner Carney with prejudice.
The City's Motion also seeks dismissal of the Monell claim against it and argues that, without the Monell claim, plaintiff's wrongful death and survival claims fail as a matter of law on the ground that they do not “constitute independent causes of action.” City's Mot., 9. The Court evaluates the Monell, wrongful death and survival claims in turn and determines that the allegations supporting such claims are sufficient to survive the City's Motion.
i. Monell Claim
The City contends that plaintiff's Monell claim should be dismissed on the grounds that (1) “[p]laintiff simply parrots the legal standard for municipal liability without pleading any actual facts that support their claim;” and (2) “[p]laintiff has not alleged any facts supporting the existence of prior similar incidents, let alone facts sufficient to allow the Court to draw a reasonable inference that the City failed to train either an individual involved in this incident, or employees generally as to the areas identified by [p]laintiff.” City's Mot., 6, 8. The Court evaluates both arguments and concludes that plaintiff has stated a Monell claim.
a. Municipal Policy or Custom
With respect to the City's first argument, the Court concludes that plaintiff has pled sufficient facts to state a claim for municipal liability. Plaintiff asserts that the City has “adopted and maintained for many years a recognized and accepted policy, custom, and/or practice of condoning and/or acquiescing to the deliberate indifference to the serious medical needs of inmates who are suicidal, including . . . failing to ensure that prisoners in their care, custody are properly placed on suicide watch, and control ingested the [sic] medication which they were being administered.” Am. Compl. ¶ 112. Additionally, plaintiff alleges that the City's failure to establish appropriate policies, practices, and training resulted in the failure of prison medical professionals to provide adequate treatment to Tavares. Id. at ¶ 116. “A plaintiff is not obligated to plead with special particularity the exact policies and practices that were in place, prior to taking any discovery into the alleged policies, and explain exactly how these precisely alleged policies caused or contributed to [an individual's] injuries.” Rodriguez v. City of Phila., No. 14-CV-7362, 2015 WL 4461785, at *4 (E.D. Pa. July 21, 2015). Thus, at this stage of the proceedings, the Court determines that plaintiff's allegations are sufficiently specific to state a Monell claim.
b. Pattern of Similar Constitutional Violations
The City's second argument-that plaintiff's failure to identify prior similar incidents is fatal to her Monell claim-fails on the ground that plaintiff has sufficiently alleged a Monell claim based on a single incident of inadequate training. “A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train . . . .” Connick v. Thompson, 563 U.S. 51, 62 (2011). However, “in certain situations, the need for training can be said to be so obvious, that failure to do so could properly be characterized as deliberate indifference to constitutional rights even without a pattern of constitutional violations.” Thomas v. Cumberland Cty., 749 F.3d 217, 223 (3d Cir. 2014). “Liability in single-incident cases depends on the likelihood that the situation will recur and the predictability that an officer lacking specific tools to handle that situation will violate citizens' rights.” Id. at 223-24.
In this case, plaintiff alleges that the City “fail[ed] to adequately train prison and medical staff employees regarding the warning signs of potential suicides . . . [and] the necessary precautions to avoid suicides.” Am. Compl. ¶ 116. Additionally, plaintiff claims that the City “lack[ed] sufficient policies and/or training relating to suicide watch and to the administration of medication, and the assurance that medication is being actually ingested by inmates instead of ‘cheeked' or stored for the purpose of using the medication for an improper and unsafe purpose such as overdosing.” Id. ¶ 113.
Plaintiff further avers that the actions of the prison officials during the time preceding Tavares's death made the need for training obvious. Specifically, she alleges that the CFCF staff, prescribed plaintiff Pamelor, “which is contra-indicated for individuals who have a history of suicidal ideation, ” id. ¶ 101; ignored the obvious signs that Tavares would commit suicide, id. ¶¶ 98-99; and “failed to take any action or precaution to ensure that [Tavares] was actually ingesting the medication which was being administered to him.” Id. ¶ 105. The Court determines that these allegations are sufficient to state a Monell claim without a pattern of similar violations.
In similar circumstances, courts have concluded that failure to train claims based on a single incident are sufficient under Monell. See Thomas, 749 F.3d at 223-24 (holding inmate-on-inmate assault was predictable result of failure to train correctional staff in de-escalation techniques); A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 575, 580 (3d Cir. 2004) (permitting failure to train claim involving single incident of assault on juvenile facility detainee based on lack of training to identify potential victims of physical attack); Koukos v. Chester Cty., No. 16-4602, 2017 WL 511634, at *11 (E.D. Pa. Feb. 7, 2017) (“Koukos's allegations regarding inadequate training with respect to the care of inmates undergoing opiate detoxification and withdrawal are sufficiently specific and connected to his injuries to plausibly state a claim.”). At this stage of the proceedings, plaintiff's allegations with respect to the lack of training on monitoring and treating detainees at risk of suicide are sufficient to state a Monell claim against the City based on a failure to train theory.
ii. Wrongful Death and Survival Claims
The City next argues that plaintiff's wrongful death and survival claims should be dismissed because they cannot be asserted as an independent cause of action. Because plaintiff has not asserted a viable Monell claim, the City contends, plaintiff's wrongful death and survival claims fail as a matter of law.
The Court agrees with the City that the Pennsylvania Wrongful Death Act and the Survival Act do not provide independent causes of action, but “provide a vehicle through which plaintiffs can recover for unlawful conduct that results in death.” Sullivan v. Warminster Township, 765 F.Supp.2d 687, 707 (E.D. Pa. 2011); see Sunderland v. R.A. Barlow Homebuilders, 791 A.2d 384, 390-91 (Pa. Super. Ct. 2002). However, because the Court has already concluded that plaintiff has stated a Monell claim against the City, the Court also concludes that she has adequately alleged unlawful conduct to support her wrongful death and survival actions. See, e.g., Woloszyn v. County of Lawrence, 396 F.3d 314, 316, 318-19 (3d Cir. 2005) (§ 1983 claim served as the underlying cause of action supporting wrongful death and survival claims); McDonald-Witherspoon v. City of Philadelphia, No. 17-1914, 2018 WL 4030702, at *14 (E.D. Pa. Aug. 23, 2018) (same). Accordingly, that part of the City's Motion which seeks dismissal of the wrongful death and survival claims is denied.
For the foregoing reasons, the City's Motion to Dismiss is denied to the extent that it seeks dismissal of all claims against the City. The Motion is granted to the extent that it seeks dismissal of all claims against Dr. Herdman and Commissioner Carney and those claims are dismissed with prejudice. The Court next addresses the Partial Motion to Dismiss filed by Dr. Holder.
B. Dr. Holder's Partial Motion
Dr. Holder's Partial Motion seeks dismissal of the two federal claims asserted against her under § 1983: “Deliberate Indifference to Serious Medical Needs-Known Risk of Suicide” (Count I); and “Deliberate Indifference to Serious Medical Needs-Need to Properly Administer Medication, Ensure Ingestion and Prevent Storage of Medication for the Purpose of Self Harm” (Count II). She contends that (a) “[p]laintiff has not pled that [Tavares] exhibited a particular vulnerability to suicide or that Dr. Holder knew or should have known of that vulnerability;” and (b) plaintiff has not alleged that “Dr. Holder knew [Tavares] was not properly taking his medication or that she was responsible for administering and monitoring [his] medications.” Holder Mot., 9-10. Dr. Holder also moves to dismiss plaintiff's claim for punitive damages in connection with both claims on the ground that “[p]laintiff has asserted no facts that Dr. Holder acted recklessly, callously or that she was motivated by evil intentions.” Id., 11. The Court addresses each argument in turn.
i. Deliberate Indifference to Risk of Suicide
To hold a prison official liable under § 1983 for failing to prevent a pre-trial detainee's suicide, a plaintiff must allege:
(1) that the individual had a particular vulnerability to suicide, meaning that there was a strong likelihood, rather than a mere possibility, that a suicide would be attempted;
(2) that the prison official knew or should have known of the individual's particular vulnerability; and
(3) that the official acted with reckless or deliberate indifference, meaning something beyond mere negligence, to the individual's particular vulnerability.Palakovic v. Wetzel, 854 F.3d 209, 223-24 (3d Cir. 2017). The Court evaluates each of these factors in turn, and concludes that plaintiff has sufficiently alleged that Dr. Holder was deliberately indifferent to Tavares's particular vulnerability to risk of suicide.
The “particular vulnerability” standard does not entail a heightened pleading requirement or a showing that “the plaintiff's suicide was temporally imminent or somehow clinically inevitable.” Id. at 230. However, the vulnerability “must be so obvious that a lay person would easily recognize the necessity for preventative action.” Id. at 222.
Plaintiff alleges that two months prior to Tavares's pre-trial detention, he was hospitalized for having suicidal ideations and that he disclosed this history during his initial interview with Dr. Holder. Am. Compl. ¶ 49. Plaintiff also states that during a subsequent interview on June 25, 2018, Tavares lied to Dr. Holder and denied ever having been hospitalized for suicidal ideations, which was “a significant warning sign indicative of intent to commit self-harm.” Id. ¶ 62. Further, plaintiff claims that around this time, Tavares was exhibiting signs of depression, id. ¶ 74; and “indicated that he had weeks where he was feeling useless or sinful.” Id. ¶ 76. Based on these allegations, the Court concludes that plaintiff has sufficiently stated that Tavares had a particular vulnerability to suicide, and that Dr. Holder knew or should have known of that vulnerability.
The Court next evaluates whether plaintiff has sufficiently alleged that Dr. Holder “acted with reckless or deliberate indifference, meaning something beyond mere negligence, to [Tavares's] particular vulnerability.” The Amended Complaint sets forth the following allegations regarding Dr. Holder's failure to address Tavares's risk of suicide:
• Despite Tavares's disclosure of his recent hospitalization for suicidal ideation during his initial intake interview, Dr. Holder failed to properly document that he had a history of suicidal ideation, id. ¶ 50;
• Dr. Holder prescribed Pamelor, which “is not recommended, and strongly warned against for use in any individual who has previously, or recently experienced suicidal ideation, ” for Tavares, id. ¶ 48;
• Dr. Holder later failed to identify a significant warning sign that Tavares was prone to suicide-his denial of his history of suicidal ideation, id. ¶ 69;
• Three days after Tavares had been seen by behavioral health professionals due to “warning signs indicative of mental health problems concerning for self-harm, ” Dr. Holder did not recommend that he be placed on suicide watch, id. ¶ 77;
• The last time Dr. Holder met with Tavares was on or about June 28, 2018 and she “failed to appropriately chart this interaction, and in fact made no medical note in the chart at all . . . .” id. ¶ 80;
• At some point during the following month, Tavares “cheeked” Pamelor and Dr. Holder failed to identify this sign that he would commit suicide, id. ¶ 57.These allegations are sufficient to support plaintiff's claim that Dr. Holder was deliberately indifferent to Tavares's particular vulnerability to suicide. Accordingly, that part of Dr. Holder's Partial Motion which seeks dismissal of plaintiff's claim under § 1983 for deliberate indifference to Tavares's known risk of suicide is denied.
ii. Deliberate Indifference to Proper Administration of Medication
Dr. Holder next argues that plaintiff's second § 1983 claim for deliberate indifference to the proper administration of medication should be dismissed.
In order to state a claim for violation of the constitutional right to adequate medical care, a plaintiff must allege “(i) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Dr. Holder does not dispute that Tavares had a serious medical need, but argues that plaintiff has not pled deliberate indifference because she has failed to allege that Dr. Holder was responsible for administering Tavares's medications. The Court rejects this argument.
It is undisputed that Dr. Holder (a) was responsible for providing medical care to Tavares, (b) assessed his mental health periodically, and (c) prescribed Pamelor for him. Plaintiff alleges that during the month preceding his death, while Tavares was “cheeking” Pamelor in order to commit suicide, Dr. Holder did not meet with Tavares once. Additionally, plaintiff states that Dr. Holder knew Tavares was “particularly vulnerable to suicide and that there was a strong likelihood that he would attempt suicide, and notwithstanding this knowledge of a significant risk to [his] health and safety . . . [Dr. Holder] fail[ed] to take any action or precaution to ensure that [he] was actually ingesting the medication which was being administered to him.” Am. Compl. ¶ 105.
The Court concludes that plaintiff has sufficiently alleged that Dr. Holder was deliberately indifferent to Tavares's serious medical needs-namely the proper administration of Pamelor. That part of Dr. Holder's Partial Motion that seeks dismissal of plaintiff's second § 1983 claim against her is denied.
iii. Claim for Punitive Damages
Finally, Dr. Holder moves to dismiss plaintiff's request for punitive damages on the ground that “[p]laintiff has asserted no facts that Dr. Holder acted recklessly or callously or that she was motivated by evil intentions.” Holder Mot., 11.
“Punitive damages in § 1983 cases are available where the defendants have acted with a ‘reckless or callous disregard of, or indifference to, the rights and safety of others.'” Mitchell v. City of Phila., 344 Fed.Appx. 775, 780 (3d Cir. 2009) (quoting Keenan v. City of Phila., 983 F.2d 459, 469-70 (3d Cir. 1992)). “Punitive damages are to be ‘reserved for special circumstances,' . . . in which the defendant's conduct amounts to something more than a bare violation justifying compensatory damages or injunctive relief.” Id. (quoting Keenan, 983 F.2d at 470).
In this case, plaintiff alleges that Dr. Holder committed more than a bare § 1983 violation. Plaintiff states that Dr. Holder's failure to adequately address Tavares's serious medical needs and her failure to address his risk of suicide were “malicious, intentional and reckless and displayed . . . a reckless indifference to [his] rights and well-being.” Am. Compl. ¶¶ 103, 109. These allegations, combined with those supporting her § 1983 claims, discussed supra, are sufficient to support a claim for punitive damages at this stage of the litigation.
Accordingly, that part of Dr. Holder's Partial Motion that seeks dismissal of plaintiff's claim for punitive damages is denied.
VI. CONCLUSION
For the foregoing reasons, the City's Motion to Dismiss is granted in part and denied in part. The Motion is granted to the extent that it seeks all claims against Dr. Herdman and Commissioner Carney and those claims are dismissed with prejudice. The Motion is denied in all other respects. Dr. Holder's Partial Motion to Dismiss is denied. An appropriate order follows.