Flannery v. Cnty. of Niagara

Full title: JENNIFER G. FLANNERY, as Public Administratrix of the Estate of Leroy…

Court: United States District Court, Western District of New York

Date published: May 15, 2024

23-CV-864JLS(F) (W.D.N.Y. May. 15, 2024)

Opinion

23-CV-864JLS(F)

05-15-2024

JENNIFER G. FLANNERY, as Public Administratrix of the Estate of Leroy Cheek, III, Deceased, Plaintiff, v. COUNTY OF NIAGARA, SHERIFF MICHAEL J. FILICETTI, PRIMECARE MEDICAL OF NEW YORK, INC., PRIMECARE MEDICAL, INC. DR. ANA NATASHA CERVANTES, NIAGARA COUNTY SHERIFF'S DEPUTIES JOHN DOES 1-5, Defendants.

PENBERTHY LAW GROUP, LLP Attorneys for Plaintiff BRITTANYLEE PENBERTHY, of Counsel GIBSON, McASKILL & CROSBY, LLP Attorneys for Defendants County of Niagara and Sheriff Michael J. Filicetti BRIAN P. CROSBY, MELISSA M. MORTON, ELISHA D. TEIBEL, of Counsel BARCLAY DAMON, LLP Attorneys for Defendants PrimeCare Medical of New York, Inc. and PrimeCare Medical, Inc. PAUL A. SANDERS, of Counsel RICOTTA MATTREY CALLOCCHIA MARKEL & CASSERT Attorneys for Defendant Dr. Ana Natasha Cervantes KATHERINE V. MARKEL, of Counsel

LESLIE G. FOSCHIO UNITED STATES MAGISTRATE JUDGE

PENBERTHY LAW GROUP, LLP Attorneys for Plaintiff BRITTANYLEE PENBERTHY, of Counsel

GIBSON, McASKILL & CROSBY, LLP Attorneys for Defendants County of Niagara and Sheriff Michael J. Filicetti BRIAN P. CROSBY, MELISSA M. MORTON, ELISHA D. TEIBEL, of Counsel

BARCLAY DAMON, LLP Attorneys for Defendants PrimeCare Medical of New York, Inc. and PrimeCare Medical, Inc. PAUL A. SANDERS, of Counsel

RICOTTA MATTREY CALLOCCHIA MARKEL & CASSERT Attorneys for Defendant Dr. Ana Natasha Cervantes KATHERINE V. MARKEL, of Counsel

REPORT AND RECOMMENDATION

LESLIE G. FOSCHIO UNITED STATES MAGISTRATE JUDGE

TABLE OF CONTENTS

JURISDICTION ..................................................... 2

BACKGROUND ...................................................... 2

FACTS .............................................................. 5

DISCUSSION ........................................................ 9

Defendants' Motions to Dismiss .......................................... 9

Plaintiff's Federal Law Claims ...................................... 12

Plaintiff's State Law Claims ........................................ 13

Plaintiff's First Cause of Action/Plaintiff's Inadequate Medical Care and Monitoring Claim ................................. 18

A. Niagara County ...................................... 18

B. Sheriff Filicetti ....................................... 32

C. Dr. Cervantes ....................................... 43

Plaintiff's Second Cause of Action/Plaintiff's Monell Claim ................ 55

A. Niagara County ...................................... 55

B. Sheriff Filicetti ....................................... 60

Plaintiff's Third Cause of Action/Plaintiff's Negligent Hiring, Failure to Train and Negligent Supervision Claim ....................... 62

A. Niagara County ...................................... 63

Negligent Hiring ..................................... 63

Failure to Train ...................................... 67

Failure to Supervise .................................. 75

B. Sheriff Filicetti ........................................ 77

Negligent Hiring ...................................... 77

Failure to Train ...................................... 79

Failure to Supervise .................................. 82

Supplemental Jurisdiction ............................................. 85

Plaintiff's State Law Claims ............................................ 86

Plaintiff's Fourth Cause of Action/Plaintiff's Negligent Screening Claim . . . . 86

A. Niagara County ..................................... 87

B. Sheriff Filicetti ...................................... 90

C. Dr. Cervantes ...................................... 95

Plaintiff's Fifth Cause of Action/Plaintiff's Negligent Failure to Train and N.Y. Corrections Law § 500-c Claim ..................... 104

A. Niagara County .................................... 105

B. Sheriff Filicetti ..................................... 106

Plaintiff's Sixth Cause of Action/Plaintiff's Malpractice Claim ............ 108

A. Niagara County .................................... 109

B. Sheriff Filicetti ..................................... 113

C. Dr. Cervantes ..................................... 117

Plaintiff's Seventh Cause of Action/Plaintiff's Wrongful Death Claim ..... 119

A. Niagara County .................................... 119

B. Sheriff Filicetti ..................................... 122

C. Dr. Cervantes ..................................... 122

Plaintiff's Eighth Cause of Action/Plaintiff's Negligent Hiring, Training, Supervision and Retention Claim .......................... 123

A. Niagara County .................................... 123

B. Sheriff Filicetti ..................................... 137

C. Dr. Cervantes ..................................... 141

Dismissal With or Without Prejudice ..................................... 145

Order to Show Cause ................................................ 147

CONCLUSION ..................................................... 155

JURISDICTION

This case was referred to the undersigned for all pretrial matters by order of Hon. John L. Sinatra, Jr., filed August 30, 2023 (Dkt. 12). The matter is presently before the court on Defendants County of Niagara and Niagara County Sheriff Micheal J. Filicetti and Dr. Ana Natasha Cervantes's motions to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), filed August 29, 2023 (Dkt. 10), (Dkt. 11), and the court's Order to Show Cause why the John Doe Defendants 1-5 should not be dismissed pursuant to Fed.R.Civ.P. 4(m) dated February 6, 2024 (Dkt. 21) (“OTSC”).

BACKGROUND

Plaintiff initiated this action by summons and complaint, dated May 25, 2023, in New York Supreme Court, Niagara County. On June 26, 2023, Plaintiff filed an Amended Summons and Complaint in New York Supreme Court pursuant to N.Y.C.P.L.R. § 1003 (permitting proper joinder of parties) (Dkt. 1-4) (“the Amended Complaint”).¹On August 22, 2023, Defendants removed the action to this court pursuant to 28 U.S.C. § 1441(a) based on Plaintiff's federal claims brought pursuant to 42 U.S.C. § 1983 (“§ 1983”) against all Defendants (Dkt. 1). Plaintiff did not contest removal by filing a motion to remand. On August 29, 2023, Defendants PrimeCare Medical of New York, Inc. and its parent, PrimeCare Medical, Inc., filed an Answer (Dkt. 8) but have not separately moved to dismiss nor joined in Defendants' motions.²

1 The Amended Complaint substituted Jennifer G. Flannery as Public Administratrix of the Estate of Leroy Cheek, III, Deceased in place of the original Plaintiffs Margaret Palumbo and Leory Cheek Jr.

2 According to the Amended Complaint, “[t]he Plaintiff, Jennifer G. Flannery was appointed as Public Administratrix of the Estate of Leroy Cheek, III, deceased, pursuant to Letters of Temporary Limited Administration dated June 8, 2023.” Amended Complaint ¶ 4. Plaintiff's counsel avers that “Plaintiff lack[ed] any control over when Erie County Surrogates Court would issue the same [letters of temporary limited administration].” Penberthy Declaration (Dkt. 16) ¶ 4. Following Flannery's appointment as public administratrix, on June 26, 2023, Penberthy Declaration ¶ 6, the Amended Complaint was filed along with a “Notice to County Clerk, Amendment to Caption” requesting the County Clerk of New York Supreme Court, Niagara County, amend the caption of the action by replacing “Jennifer G. Flannery, as Public Administratrix of the Estate of Leroy Cheek, III, Deceased,” as Plaintiff in lieu of “Margaret Palumbo and Leroy Cheek, Jr., as Proposed Administratrix of the Estate of Leroy Cheek, III, Deceased.” Dkt. 1-3. For the purpose of the instant motions, the court relies on Penberthy's averments and actions, which Defendants have not challenged as inaccurate nor procedurally improper.

On August 29, 2023, Defendants County of Niagara (“Niagara County” or “the County”), Niagara County Sheriff Filicetti (“Filicetti” or “Sheriff Filicetti”) (together “County Defendants”) and Defendant Dr. Ana Natasha Cervantes (“Cervantes” or “Dr. Cervantes”) filed motions to dismiss the Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6) (Dkts. 10 and 11, respectively) (“County Defendants' motion”) Dkt. 10; (“Dr. Cervantes's motion”) Dkt.11. County Defendants' motion includes the Declaration of Brian P. Crosby [Esq.]³In Support of Defendants' Motion To Dismiss the Amended Complaint (Dkt. 10-1) (“Crosby Declaration”) together with Exhibits A - C (“Crosby Declaration Exh(s) ”) and a Memorandum Of Law (Dkt. 10-5) (“County Defendants' Memorandum of Law”).⁴Dr. Cervantes's motion includes the Attorney Declaration of Katherine V. Markel [Esq.] (Dkt. 11-1) (“Markel Declaration”) together with Exhibits 1 - 3 (“Markel Declaration Exh(s) ”) (Dkt. 11-2, Dkt. 11-3, Dkt. 11-4) and Memorandum of Law In Support Of Defendant Dr. Ana Natasha Cervantes' Motion To Dismiss (Dkt. 11 5) (“Dr. Cervantes's Memorandum of Law”). Markel Declaration Exh. 1 is a copy of the Summons and Complaint filed May 25, 2023, Exh. 2 is a copy of the Amended Complaint filed June 26, 2023, Exh. 3 is the Affidavit of Defendant Dr. Ana Natasha Cervantes dated August 29, 2023 (Dkt. 10-4) (“Cervantes Affidavit”).

3 Unless indicated otherwise, bracketed material is added.

4 Crosby Declaration Exh. A (Dkt. 10-2) is a copy of Plaintiff's Notice of Claim dated March 30, 2022 served upon the Niagara County attorney pursuant to N.Y. Gen. Munic. Law § 50-e. Crosby Declaration Exh. B is a copy of the summons in connection with the Complaint served on May 25, 2023. Crosby Declaration Exh. C is a copy of the Amended Summons and Amended Complaint (Dkt. 10-4) served on Defendants on June 26, 2023.

On October 10, 2023, Plaintiff filed the Declaration of Brittanylee Penberthy [Esq.] In Opposition To Defendants' Motion To Dismiss The Complaint [sic] (Dkt. 16) (“Penberthy Declaration”) together with Exhibit A (Dkt. 16-1) (“Penberthy Declaration Exh. A”)⁵ and Plaintiff's Answering Memorandum Of Law In Opposition To Defendant Cervantes, County of Niagara, and Niagara County Sheriff Michael J. Filicetti's Motions To Dismiss The Amended Complaint (Dkt. 16-2) (“Plaintiff's Memorandum of Law”); the Reply Declaration of Brian P. Crosby In Further Support Of Defendants' Motion To Dismiss The Amended Complaint was filed November 11, 2023 (Dkt. 17) (“Crosby Reply Declaration”) together with Reply Memorandum Of Law Of Defendants, County of Niagara and Sheriff Michael J. Filicetti, In Further Support Of Their Motion To Dismiss The Amended Complaint (Dkt. 17-1) (“County Defendants' Reply Memorandum of Law”).⁶

5 Penberthy Declaration Exh. A is a copy of the Affidavit of Service of Joseph Jeziorowski purporting to have been served on the John Doe Defendants, dated August 21, 2023.

6 Dr. Cervantes did not file any reply papers.

In response to the OTSC, on February 16, 2024, Plaintiff filed Declaration [of Brittanylee Penberthy, Esq.] In Further Opposition To Dismissal Of John Doe Defendants (Dkt. 22) (“Penberthy Declaration re: Dismissal Of John Doe Defendants”) together with Plaintiff's Memorandum Of Law In Further Opposition To Dismissal Of Niagara County Sheriff's Deputies John Does 1-5 (Dkt. 22-1) (“Plaintiff's Memorandum Of Law re: Dismissal of John Doe Defendants”). On February 21, 2024, County Defendants filed the Declaration Of Brian P. Crosby [Esq.] In Support Of Dismissal Of Niagara County Sheriff's Deputies John Does 1-5 (Dkt. 23) (“Crosby Declaration”) together with Memorandum Of Law In Support Of Dismissal Of The Amended Complaint As To Niagara County Sheriff's Deputies John Does 1-5 (Dkt. 23-1) (“County Defendants' Memorandum of Law re: Dismissal of John Doe Defendants”). Oral argument was deemed unnecessary.

Based on the following, County Defendants' motion (Dkt. 10) should be GRANTED without prejudice with respect to Plaintiff's First, Second and Third Causes of Action; without prejudice with respect to Plaintiff's Fourth, Fifth, Sixth and Seventh Causes of Action against Niagara County; with prejudice with respect to Plaintiff's Eighth Cause of Action against Niagara County; with prejudice with respect to Plaintiff's Fourth, Fifth, Sixth, and Eighth Causes of Action against Sheriff Filicetti; and without prejudice with respect to the Seventh Cause of Action against Sheriff Filicetti. Dr. Cervantes's motion (Dkt. 11) should be GRANTED without prejudice with respect to Plaintiff's First, Fourth, Sixth, Seventh and Eighth Causes of Action. The John Doe Defendants 1-5 should be DISMISSED without prejudice.

FACTS ⁷

7 Taken from pleadings and papers filed in this action. The Amended Complaint is filed as Exh. C to County Defendants' Motion to Dismiss, see Dkt. 10-4, and Exh. 2 to Dr. Cervantes's Motion to Dismiss. See Dkt. 11-3 at 2-22. For the purposes of this Report and Recommendation, the court references the Amended Complaint as it appears in Dkt. 10-4, County Defendants' Exh. C.

Plaintiff's decedent, Leroy Cheek, III, a pretrial detainee, (“Cheek” or “Plaintiff's decedent”) died tragically by suicide on either February 26 or February 27, 2022, while incarcerated at the Niagara County Jail (“the Jail”) in the custody of Sheriff Filicetti and Defendant Niagara County Deputy Sheriffs John Does 1-5, unnamed Niagara County Deputy Sheriffs and corrections officers (“Doe Defendants”).⁸ Amended Complaint (Dkt. 10-4) ¶¶ 6, 9, 13. Plaintiff alleges that in his capacity as Niagara County Sheriff, Sheriff Filicetti was responsible for the safe keeping of Jail inmates as well as the hiring, supervision and training of Jail personnel including deputy sheriffs and Jail corrections officers and for creating and maintaining the policies, practices and procedures for the operation of the Jail. Amended Complaint (Dkt. 10-4) ¶¶ 9, 73. Defendants PrimeCare Medical of New York, Inc. and PrimeCare Medical, Inc. (“PrimeCare Defendants” or “PrimeCare”) are alleged by Plaintiff, upon information and belief, to have been contracted by Niagara County and Filicetti to provide health care services for prisoners and pretrial detainees held in the Jail (“the PrimeCare contract” or “the contract”). Amended Complaint (Dkt. 10-4) ¶17.⁹ Defendant Dr. Ana Natasha Cervantes (“Dr. Cervantes”) is alleged, also on information and belief, to have been employed by PrimeCare Defendants as Chief Psychiatrist at the Jail and was responsible for Cheek's medical care. Amended Complaint (Dkt. 10-4) ¶ 21. Plaintiff further alleges, upon information and belief, that Dr. Cervantes and other PrimeCare employees were under the supervision of Filicetti, Doe Defendants and Niagara County. Amended Complaint (Dkt. 10-4) ¶ 20.

8 The Amended Complaint does not provide any information as to how, e.g., by hanging, drug overdose or self-inflicted wound, Cheek's suicide was effected nor does the record specify on which day, February 26 or February 27, Cheek died.

9 A copy of the PrimeCare contract is not included in the record.

Plaintiff alleges, upon information and belief, that following Cheek's arrest¹⁰ and coming into custody at the Jail on January 12, 2022, “staff” at the Jail “became associated and familiar with” Cheek's “medical file . . . including the fact that . . . [Cheek] had high risk factors [and] mental health and potential suicidal issues.” Amended Complaint (Dkt. 10-4) ¶ 27. Plaintiff further alleges that Cheek then suffered from “deteriorating mental health” creating an urgent need for hospitalization and the administration of medications to treat Cheek's mental health condition. Amended Complaint (Dkt. 10-4) ¶¶ 29, 31. Plaintiff also alleges Defendants failed to properly diagnose Cheek for his mental health condition. Amended Complaint (Dkt. 10-4) ¶ 30. According to Plaintiff, upon information and belief, “despite the high-risk assessment of [Cheek], the suicide threats potentially expressed and/or the appearance of decomposition,” Cheek “was not properly examined by a physician.” Amended Complaint (Dkt. 10-4) ¶ 32. Plaintiff also alleges upon information and belief that Niagara County and Filicetti were aware of five prior inmate suicide attempts at the Jail which occurred between approximately 2008 and 2021. Amended Complaint (Dkt. 104) ¶ 33. Given these alleged prior inmate suicides, Plaintiff alleges Defendants failed to provide procedures, policies and training to Jail staff to prevent further inmate deaths including Cheek's. Amended Complaint (Dkt. 10-4) ¶¶ 35, 36.

10 The reason for Cheek's arrest does not appear in the record.

Upon information and belief, Plaintiff alleges Dr. Cervantes provided and prescribed to Cheek an improper dosage of Prazosin, in response to Cheek's complaint of a sleeping problem caused by Cheek's PTSD condition, a drug known to cause sideeffects including PTSD nightmares and suicidal ideations. Amended Complaint (Dkt. 10-4) ¶¶ 39, 40, 41. Upon information and belief, Plaintiff further alleges Defendants Niagara County and Filicetti “were aware that inmates with a prior history of self-injurious behavior and suicidal thoughts pose a heightened risk for suicide,” Amended Complaint (Dkt. 10-4) ¶¶ 43, and that County Defendants, Dr. Cervantes and PrimeCare Defendants had knowledge that Cheek “had a history of self-injurious behavior,” including “suicidal ideations and suicidal attempts.” Amended Complaint (Dkt. 10-4) ¶ 45. According to Plaintiff, prior to his death while in County Defendants' custody, Cheek “exhibited several serious medical and health conditions that demonstrated an increased risk of suicide,” Amended Complaint (Dkt. 10-4) ¶ 47. Plaintiff also alleges, on information and belief, “Defendants were directly warned of . . . [Cheek's] suicidal inclinations immediately prior to his death.” Amended Complaint (Dkt. 10-4) ¶ 49.

Plaintiff further alleges Defendants Niagara County, Filicetti and the Doe Defendants failed to comply with inmate monitoring requirements as provided by the N.Y. Commission of Corrections and Title 9 of the N.Y. Code of Rules and Regulations Part 7003, that were binding on Defendants including the Doe Defendants as well as by internal policies of Niagara County and Filicetti. Amended Complaint (Dkt. 10-4) ¶¶ 52, 53, 54. Plaintiff also alleges, upon information and belief, that “while . . . [Cheek] was under constant watch and constant supervision as a result of his [Cheek's] various assessments made upon intake [by] Filicetti's staff . . . including [the Doe Defendants],” “these Defendants should have subjected Cheek to constant visual observation to verify signs of life” for Cheek thereby constituting a failure to prevent Cheek's suicide. Amended Complaint (Dkt. 10-4) ¶¶ 52, 53, 58. Plaintiff alleges Niagara County and Filicetti also “negligently failed to train, supervise and retain Defendant Jail staff with respect to compliance with Title 9 of the N.Y. Code of Rules and Regulations and the rules of the N.Y. Commission of Corrections, including the Commission Chairman's Memoranda, and N.Y. State, County and Filicetti's “general orders” regarding Jail “housing unit supervision, assessments, mental health treatment, searches and compliance” with such requirements which failures “contributed to” Defendants' failures to “verify [Cheek's] . . . signs of life, failing to post a [monitoring] position adequately close to [Cheek's] cell and [Defendants'] failure to prevent [Cheek's] suicide.” Amended Complaint (Dkt. 10-4) ¶¶ 56, 57, 58. The balance of the Amended Complaint's 134 paragraphs are discussed, to the extent necessary, in the following discussion.

DISCUSSION

Defendants' Motions to Dismiss.

A complaint must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) (“Rule 12(b)(6)”) for failure to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (“Twombley”) (retiring longstanding precedent of Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (“a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”). As such, the Supreme Court requires application of “a ‘plausibility standard . . . .'” Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009) (citing Twombly, 550 U.S. at 570, and quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“ Iqbal”)). On a motion to dismiss under Rule 12(b)(6), the court looks to the four corners of the complaint and is required to accept the plaintiff's non-conclusory allegations as true and to construe those allegations in the light most favorable to the plaintiff. Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008) (court is required to liberally construe the complaint, accept as true all factual non-conclusory allegations in the complaint, and draw all reasonable inferences in the plaintiff's favor). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

A claim has 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. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 557)

“[A] Rule 12(b)(6) motion is addressed to the face of the pleading.” Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir. 1985). “In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the [pleading], documents attached to the [pleading] as exhibits, and documents incorporated by reference in the [pleading].” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court should consider the motion by “accepting all factual allegations as true and drawing all reasonable inferences in favor of the [claimant].” Trustees of Upstate N.Y.Eng'rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). “While a [pleading] attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a [claimant's obligation to provide the grounds of his entitlement] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal quotations and citations omitted). On a motion to dismiss, the court is required to take as true all factual allegations in the complaint, but the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). Relevantly, a “fact” is “[s]omething that actually exists; an aspect of reality . . ..” Facts, Black's Law Dictionary (10^th ed. 2014). “Facts include not just tangible things, actual occurrences, and relationships, but also states of mind such as intentions and the holding of opinions.” Id. Statements or legal conclusions unsupported by factual allegations are conclusory and need not be considered. See Deniran v. Museum of Modern Art, 2022 WL 3030513, at * 2 (S.D.N.Y. Aug. 1,2022) (determining that although the plaintiff “contends that [the defendant's] vaccination policy is a ‘state program,' [ ], that is a conclusory statement unsupported by assertions of fact that the Court need not credit on a motion to dismiss”). “[B]are assertions, . . . amounting] to nothing more than a ‘formulaic recitation of the elements' of a[n asserted] claim, . . . are conclusory and not entitled to be assumed true.” Iqbal, 556 U.S. 662, 681 (quoting Twombly, 550 U.S. at 554-555). Such “bald allegations” are not rejected because “they are unrealistic or nonsensical;” instead, it is the “‘conclusory nature' of [such] allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.” Id. (quoting Twombly, 550 U.S. at 551). An allegation of an essential element of a claim is conclusory where the allegation is unsupported by any facts. See Green v. McLaughlin, 480 Fed.Appx. 44, 46 (2d Cir. 2012) (dismissing plaintiff's claim that defendants conspired to violate the plaintiff's constitutional rights because “[a]side from his conclusory statement that there was a ‘meeting of the minds' between the defendants, [the] complaint alleged no facts upon which it may be plausibly inferred that the defendants came to an agreement to violate his constitutional rights.”). Further, applying the standard for a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) “is ‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'” In re Amaranth Natural Gas Commodities Litigation, 730 F.3d 170, 80 (2d Cir. 2013) (quoting Iqbal, 556 U.S. 662 at 679). See also ATSI Communications, Inc v. Shaar Fund, Ltd., 493 F.3d 87, 89 (2d Cir. 2007)) (“To survive dismissal, the plaintiff must provide the grounds upon which . . . [plaintiff] rests through factual allegations sufficient ‘to raise a right to relief above the speculative level.'”) (quoting Twombly, 550 U.S. at 127). Plaintiff asserts three federal law claims under § 1983 and five state law claims based on New York State statutory and common law.

Plaintiff's Federal Law Claims.

In the instant case, Plaintiff's three federal claims are asserted pursuant to § 1983, which permits imposing civil liability upon persons who, acting under color of state law, deprive an individual of rights, privileges, or immunities secured by the Constitution and laws of the United States. Patterson v. County of Oneida, New York, 375 F.3d 206, 225 (2d Cir. 2004) (quoting 42 U.S.C. § 1983). Section 1983, however, “ ‘is not itself a source of substantive rights.'” Id. (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). Rather, § 1983 “merely provides ‘a method for vindicating federal rights elsewhere conferred' . . ..” Id.

The elements of a § 1983 claim include (1) the deprivation of a federal constitutional or statutory right, and (2) by a person acting under color of state law. Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005) (citing Gomez v. Toledo, 446 U.S. 635, 640 (1980)). Thus, “[t]he first step in any such claim is to identify the specific constitutional right allegedly infringed.” Id. (citing Graham v. Connor, 490 U.S. 386, 394 (1989); and Baker, 443 U.S. at 140). In the instant case, Plaintiff alleges Defendants Niagara County, Sheriff Filicetti, the five John Doe Deputy Sheriffs, Dr. Cervantes, and the PrimeCare Defendants violated Cheek's Fourteenth Amendment right to receive adequate medical, i.e., mental health care, and proper monitoring as a pretrial detainee while in Sheriff Filicetti's custody.

For a First Cause of Action, Plaintiff asserts a § 1983 claim against all Defendants based on Defendants' denial, as a result of deliberate indifference, of Cheek's substantive due process right to adequate medical care and treatment for a serious medical need, viz., Cheek's mental health, and proper monitoring, while in custody, in violation of the Fourteenth Amendment. (“Plaintiff's First Cause of Action” or (“Plaintiff's Inadequate Medical Care and Monitoring Claim”). Amended Complaint (Dkt. 10-4) ¶¶ 66-69. Plaintiff's Second Cause of Action, brought pursuant to § 1983 against County Defendants, alleges County Defendants' violation of Cheek's substantive due process right to adequate medical care for Cheek's mental health was the result of policies, customs or practices maintained by Niagara County and Sheriff Filicetti, Amended Complaint (Dkt. 10-4) ¶ 73, that were established by unnamed “[o]fficials within the County or the office of Filicetti.” Amended Complaint (Dkt. 10-4) ¶ 74. Plaintiff further alleges, in connection with Plaintiff's Second Cause of Action, that as a result of such municipal policies, customs or practices, these Defendants were deliberately indifferent to the proper hiring, discipline and supervision of Jail employees who would come into contact with Jail inmates, like Cheek, in need of adequate medical treatment to be adequately screened for risks of suicide and to adequately monitor Cheek while he was in Defendant Filicetti's custody. Amended Complaint (Dkt. 10-4) ¶¶ 73, 78 (“Plaintiff's Second Cause of Action” or “Plaintiff's Monell Claim”). Plaintiff's Third Cause of Action alleges a § 1983 claim based on Niagara County and Sheriff Filicetti's failure to properly hire, train and supervise these Defendants' respective jail employees to adequately “screen inmates,” Amended Complaint (Dkt. 10-4) ¶¶ 83, 85, to determine whether an inmate posed a serious suicide risk thereby constituting County Defendants' deliberate indifference to the “rights” of Jail inmates, including Cheek, to be screened for a risk of suicide and that such failure to screen and monitor Cheek while in custody was demonstrated by the County and Filicetti's “subordinates and employees, whom [sic] deliberately ignored various warnings raised by various persons that . . . [Cheek] was in need of immediate medical assistance while suffering from a serious medical condition.” Amended Complaint (Dkt. 10-4) ¶ 74. (“Plaintiff's Third Cause of Action” or “Plaintiff's Negligent Hiring, Negligent Supervision and Failure to Train Claim”). In further support of Plaintiff's § 1983 claims, Plaintiff alleges Defendants failed to comply with 9 N.Y.C.R.R. Pt. 7003 establishing requirements for the monitoring of certain jail inmates. Amended Complaint (Dkt. 10-4) ¶¶ 52, 53.

Plaintiff's State Law Claims.

For a Fourth Cause of Action, Plaintiff asserts Defendants Niagara County and Filicetti, Dr. Cervantes, the John Does, and the PrimeCare Defendants negligently failed to properly screen Jail inmates including Cheek as to whether such inmates posed a serious suicide risk and that, as a result of Defendants' failure to assess and treat Cheek's mental health condition, Cheek was able to commit suicide. Amended Complaint (Dkt. 10-4) ¶¶ 93-95. (“Plaintiff's Fourth Cause of Action” or “Plaintiff's Negligent Suicide Screening Claim”). In Plaintiff's Fifth Cause of Action, Plaintiff alleges that as a result of Niagara County and Sheriff Filicetti's negligent training, supervision and retention of Jail employees, Defendants Niagara County and Filicetti violated their respective duties under N.Y. Corrections Law § 500-c[4] (“§ 500-c[4]”) which requires a county sheriff to provide for the safe keeping of all persons lawfully in his or her custody and as a result of County Defendants' failure to comply with § 500-c[4], Cheek was able to commit suicide. Amended Complaint (Dkt. 10-4) ¶¶ 99, 100 (“Plaintiff's Fifth Cause of Action” or “Plaintiff's Failure to Train and § 500-c Claim”). For Plaintiff's Sixth Cause of Action, asserted against all Defendants, Plaintiff alleges N.Y. Corrections Law § 501 required Niagara County and Sheriff Filicetti to employ a physician, either individually or through a professional services corporation or partnership, to provide Jail inmates, such as Cheek, with appropriate medical care and treatment while in County Defendants' custody and that Niagara County, Sheriff Filicetti, Dr. Cervantes, the John Does, PrimeCare Defendants, and their respective employees were negligent in failing to refer Cheek to a hospital or otherwise provide for an adequate diagnosis or treatment of his alleged mental decomposition prior to his suicide. Amended Complaint (Dkt. 10-4) ¶¶ 103-106. Plaintiff further alleges Defendants' failure to refer Cheek for a “higher level” of care was in violation of N.Y.C.R.R. § 7010.1(b), Amended Complaint (Dkt. 10-4) ¶ 109, which requires the chief administrative officer of local correctional facilities, in this case, the Niagara County Sheriff, to promptly screen inmates to “identify serious or lifethreatening medical conditions requiring immediate evaluation and treatment.” Amended Complaint (Dkt. 10-4) ¶¶ 109, 110. As a result of Defendants' failures to comply with such regulation with respect to Cheek and properly diagnose and monitor Cheek's condition, Plaintiff alleges Defendants' actions or omissions constituted malpractice. Amended Complaint (Dkt. 10-4) ¶¶ 110. (“Plaintiff's Sixth Cause of Action” or “Plaintiff's Malpractice Claim”). For Plaintiff's Seventh Cause of Action, Plaintiff alleges that as a result of all Defendants' negligence and reckless disregard with respect to Cheek's need for mental health treatment Plaintiff asserts a wrongful death claim on behalf of Cheek's four minor children pursuant to § 5-4.1of the N.Y. Estates, Powers and Trust Law (N.Y.E.P.T.L. § 5-4.1”). Amended Complaint (Dkt. 10-4) ¶¶ 117, 120. (“Plaintiff's Seventh Cause of Action” or “Plaintiff's Wrongful Death Claim”). In Plaintiff's Eighth Cause of Action, Plaintiff alleges all Defendants negligently failed to properly hire, retain, supervise and train Jail officers and medical professionals to adequately address Cheek's medical needs. Amended Complaint (Dkt. 10-4) ¶¶ 122130. (“Plaintiff's Eighth Cause of Action” or “Plaintiff's State Law Negligent Hiring, Retention, Supervision and Training Claim”).¹¹

11 In the heading to Plaintiff's Eighth Cause of Action, Plaintiff alleges such claim is for Defendants' Negligent Hiring, Training and Retention of Employees under New York law; however, in the subsequent paragraphs Plaintiff references only Defendants' alleged failure to properly “hire, supervise and train” such employees. See Dkt. 10-4 at ¶¶ 124-130.

At the outset, the court notes that consistent with County Defendants, see County Defendants' Memorandum of Law (Dkt. 10-5) at 8-9 (citing Iqbal and Twombly) and Dr. Cervantes, see Dr. Cervantes's Memorandum of Law (Dkt. 11-5) at 8-9, 14-15 (citing Iqbal and Twombly), the Amended Complaint is in large measure based on non-factual conclusory allegations and as such is insufficient and subject to dismissal. In opposition, Plaintiff asserts Iqbal does not require “intricate detailed factual allegations,” see Plaintiff's Memorandum of Law (Dkt. 16-2) at 7, relying on Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000) (asserting dismissal inappropriate unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him or her to relief, which in essence states the test as enumerated in Conley which was rescinded by Twombly and Iqbal). However, a fair reading of the Amended Complaint supports that many of Plaintiff's significant allegations are conclusory. For example, Amended Complaint (Dkt. 10-4) ¶ 69 alleges that “as a result of the deliberate indifference of the Defendants, the health and status of . . . [Cheek] was not checked . . . [until Cheek expired]). See also Amended Complaint ¶ 73 (“County and Filicetti maintained a policy, custom or practice of deliberate indifference to the hiring, supervision, or discipline of its [sic] [Jail] employees ....”); ¶ 75 (“As a result of the policies, customs, or practices [of

County Defendants] Defendants caused the deprivation of . . . [Cheek's] access to adequate medical care and treatment . . .”); ¶ 100 (“As a result of the negligent training, supervision, and retention of . . . [Jail personnel] [Cheek committed suicide] ....”). The court, accordingly, finds the Amended Complaint suffers from a substantial number of conclusory pleadings and is therefore insufficient under Iqbal. The additional issues pertaining to the insufficiencies of Plaintiff's eight causes of action are discussed in greater detail as necessary infra. Plaintiff's First Cause of Action/Plaintiff's Inadequate Medical Care and Monitoring Claim.

A. Niagara County.

In Plaintiff's First Cause of Action, Plaintiff asserts all Defendants violated Cheek's Fourteenth Amendment right to receive proper medical care and monitoring to address Cheek's mental health issues and suicidal tendency while Cheek was in Niagara County and Sheriff Filicetti's custody in the Niagara County Jail as a result of Defendants' deliberate indifference. Amended Complaint (Dkt. 10-4) ¶¶ 27, 29, 30, 32, 39, 40, 41, 45, 66. In support of its motion, Niagara County contends Plaintiff's First Cause of Action should be dismissed as alleged against the County for the reason that Plaintiff's claim fails to plausibly allege that any lack of proper medical care for Cheek, or any alleged failure to properly monitor Cheek during his custody, resulted from a municipal policy or practice created by a final County policy-maker, a prerequisite to a municipality's § 1983 liability as established by Monell v. New York City Dept. of Soc. Svcs., 436 U.S. 658, 690 (1978) (“Monell”). See County Defendants' Memorandum of Law (Dkt. 10-5) at 3-4 (referencing Amended Complaint (Dkt. 10-4) ¶¶ 64-71) (incorporating by reference paragraphs 1-64 of the Amended Complaint). Specifically, in paragraph 27 of the Amended Complaint, Plaintiff alleges, upon information and belief, that prior to Cheek's suicide on February 26-27, 2022, while in Sheriff Filicetti's custody, “staff” at the Niagara County Jail, not otherwise identified by Plaintiff, became aware of Cheek's medical history which indicated Cheek had “high risk factors” with regard to Cheek's mental health and “potential suicidal issues.” Plaintiff further alleges that Defendants failed to properly diagnose Cheek for his mental health conditions. Amended Complaint (Dkt. 10-4) ¶ 30. Plaintiff also alleges, on information and belief, that despite the “high-risk assessment” of Cheek made by unidentified Jail staff and “potentially expressed suicide threats,” Cheek “was not properly examined by a physician.” Amended Complaint (Dkt. 10-4) ¶ 32. Plaintiff further alleges, in paragraph 45 of the Amended Complaint, Defendants had “actual and constructive knowledge of” Cheek's “self-injurious behavior . . . suicidal ideations and suicidal attempts.” Plaintiff also alleges that Defendants failed, with deliberate indifference to Cheek's mental health needs, to provide proper medical assistance to Cheek and to monitor him during his custody. Amended Complaint (Dkt. 10-4) ¶ 66.

Plaintiff counters by asserting § 1983 liability against the County is sufficiently pleaded “if the supervisory official is determined to have created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom or the defendant was grossly negligent in supervising subordinates who committed the wrongful acts.” Plaintiff's Memorandum of Law (Dkt. 16-2) at 10 (citing Iqbal, 556 U.S. at 676-77). Plaintiff further asserts “that Defendants Niagara County and Sheriff Filicetti knew or should have known of “his employee's [sic] propensity for the conduct which caused . . . [Cheek's death],” including a “lack of medical care . . . given to [sic] pre-trial detainee whose mental health is suffering.” Id. at 10. Plaintiff also references five inmate suicides at the Niagara County Jail which occurred over an approximately 13-year period but without asserting such suicides occurred under circumstances similar to that of Cheek's, caused by similar alleged constitutional violations, or that such suicides occurred during Sheriff Filicetti's tenure or while any of the John Doe Defendants were employed at the Jail. Id. Plaintiff asserts all Defendants were deliberately indifferent to Cheek's need for mental health assistance to prevent Cheek's suicide. Plaintiff's Memorandum of Law (Dkt. 16-2) at 11 (citing Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017) (deliberate indifference may be established by defendant's objective awareness that defendant's conduct violates a plaintiff's Fourteenth Amendment due process rights)). Specifically, Plaintiff claims all Defendants “‘recklessly failed to act with reasonable care to mitigate the risk that the [medical] condition posed to . . . [Cheek] and . . . [Defendants] should have known that the condition posed an excessive risk to [Cheek's] health and safety.'” Id. (quoting Darnell, 846 F.3d at 35). Plaintiff also relies on a recent state court case in which the plaintiff was determined to have sufficiently alleged a § 1983 violation against Niagara County and Dr. Cervantes based on the plaintiff's allegation that defendants Niagara County and Dr. Cervantes had provided the plaintiff with inadequate medical care while plaintiff was detained in the Niagara County Jail. See Plaintiff's Memorandum of Law (Dkt. 16-2) at 14 (citing Prezioso v. County of Niagara, 183 N.Y.S.3d 825 (4^th Dept. 2023) (Prezioso”)). In reply, Defendant County cites to caselaw supporting Plaintiff's allegations failed to plausibly allege Plaintiff's constitutional rights were violated as a result of municipal policy or practice established by an individual with final policy-making authority on behalf of Niagara County. See County Defendants' Reply (Dkt. 17-1) at 910 (citing cases).

Although Plaintiff asserts the First Cause of Action against Niagara County without specifically referencing Monell, it is settled that under § 1983 a municipal defendant, like Niagara County, which can act only through its employees, Amnesty America v. Town of West Hartford, 361 F.3d 113, 126 (2d Cir. 2004) (“A municipality may . . . be held liable for a constitutional deprivation caused by a lower-level employee's single tortious act if the plaintiff can show that the municipality “ordered or ratified” the act.”), cannot be held liable on the theory of respondent superior. Monell, 436 U.S. at 690. Instead, § 1983 liability attaches to a municipality only where a plaintiff plausibly claims the plaintiff was subject to a denial of a constitutional right by a municipal employee who was caused to act by an official policy enacted by the municipality, i.e., through an ordinance or resolution adopted by the municipality or an official policy or custom created by a municipal official with final policy-making authority on behalf of the municipal defendant. Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2009). Additionally, “where [as in the instant case] a plaintiff relies not on a formally declared or ratified policy, but rather on the theory that the conduct of a given official represents official policy, it is incumbent on the plaintiff to establish that element as a matter of law.” Jeffes v. Barnes, 208 F.3d 49, 57-58 (2d Cir. 2000) (finding county sheriff was final policy-maker for defendant county with respect to plaintiff's First Amendment claims), cert. denied, 531 U.S. 813 (2000); see also Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006) (a § 1983 plaintiff must establish that “policies or customs that [were] sanctioned” by the municipality led to the alleged constitutional violation (citing Monell, 436 U.S. at 694)).

In opposition to Defendant Niagara County's contention, Plaintiff asserts that “Defendants Niagara County and Sheriff Filicetti knew or should have known of his [Filicetti's] employee's propensity for the conduct which caused . . . [Cheek's] injuries, namely the lack of medical care and concern” for pretrial detainees in need of such assistance. Plaintiff's Memorandum (Dkt. 16-2) at 10. However, while the Amended Complaint is replete with allegations attempting to demonstrate Defendants' alleged failures to properly treat and monitor Cheek constituted deliberate indifference in support of Plaintiff's First Cause of Action, none describe with any factual basis such failures resulted from an official policy or practice with respect to Cheek's suicide established on behalf of Niagara County either by official action of Niagara County or by a final County decision-maker sufficient to plausibly create municipal liability under Monell. See, e.g., Amended Complaint ¶¶ 27, 28 (alleging “staff” at the Niagara County Jail failed to provide appropriate medical care to Cheek despite knowledge that Cheek presented with “high risk factors” and experienced mental health and “potential suicidal issues”); ¶ 48 (“Defendants exhibited deliberate indifference to . . . [Cheek's] mental health needs” resulting in Cheek's suicide). As such, the Amended Complaint fairly read fails to plausibly allege that the violation of Cheek's Fourteenth Amendment right to receive proper medical assistance and monitoring while in custody prior to his suicide resulted from a municipal policy or practice established by Niagara County.

Without stating that the alleged “staff” at the Jail included employees of Niagara County, Plaintiff's allegation is more fairly read as alleging such staff were employees of Sheriff Filicetti, not the County, and that County Defendants exhibited deliberate indifference to Cheek's mental health needs fails to allege such indifference was the result of a County policy or practice created by an official with final policy making authority with respect to providing Jail inmates with proper medical assistance and monitoring. See Wray, 490 F.3d at 195. “The right of pretrial detainees to receive adequate medical care is protected by the Due Process Clause of the Fourteenth Amendment.” Pridgen v. Iland Jail [sic], 2023 WL 1438375, at *6 (S.D.N.Y. Feb. 1, 2023) (citing Horace v. Gibbs, 802 Fed.Appx. 11, 13-14 (2d Cir. 2020)). However, contrary to Plaintiff's allegation, see Amended Complaint (Dkt. 10-4) ¶ 66 (despite Cheek's serious medical condition, Defendants “failed to monitor him . . .”), a failure to monitor a pretrial detainee is not within the ambit of the Fourteenth Amendment's protections. See Lara-Grimaldi v. County of Putnam, 529 F.Supp.3d 88, 109 (S.D.N.Y. 2021) (failure to monitor pretrial detainee who committed suicide supported, at most, finding of negligence which is insufficient to support a § 1983 claim) (citing cases). The court also finds Plaintiff's argument that Niagara County should have known of “his,” Sheriff Filicetti's, “employee's [sic] propensity” for causing the lack of necessary medical care to pretrial detainees held at the Jail, see Plaintiff's Memorandum of Law (Dkt. 16-2) at 10, exhibiting mental health issues effectively concedes a lack of involvement in the alleged violations by any employees of Niagara County thus placing Niagara County beyond the scope of Monell liability based on Plaintiff's allegations in support of Plaintiff's First Cause of Action against Niagara County. See Wray, 490 F.3d at 195 (holding that Monell requires that the defendant municipality have acted unconstitutionally through its employees).

Nor does Plaintiff's allegation, see Amended Complaint (Dkt. 10-4) ¶ 33, that Defendants were aware of five inmate deaths at the Niagara County Jail which occurred over an approximate¹²13-year period, the last taking place in 2021, constitute the equivalent of an allegation that Cheek's alleged deprivations resulted from an official policy or practice establishing Monell liability against Niagara County. See Iacovangelo v. Correctional Medical Care, Inc., 624 Fed.Appx. 10, 13-14 (2d Cir. 2015) (a § 1983 claim must allege “existence of a formal policy or a practice so persistent and widespread that it constitutes a custom or usage of which supervisory authorities must have been aware”; defendant's “troubled track record” in providing adequate medical care to inmates undergoing drug or alcohol withdrawal was insufficient to demonstrate plaintiff has pleaded “a custom of not providing such treatment”) (italics in original); see also Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012) (“isolated acts of excessive force by non-policy making municipal employees are generally not sufficient to demonstrate a municipal custom, policy, or usage that would justify municipal liability”); Giaccio v. City of New York, 308 Fed.Appx. 470, 472 (2d Cir. 2009) (four similar, one of which allegedly occurred within two years of plaintiff's disclosures, see Giaccio v. City of New York, 502 F.Supp.2d 380, 389 (S.D.N.Y. 2007) incidents “falls far short of establishing a practice that is so ‘persistent or widespread' as to justify the imposition of municipal liability”) (internal citations omitted). Moreover, Plaintiff's allegation, see Amended Complaint (Dkt. 10-4) ¶¶ 56-58, alleging County Defendants failed to train the John Doe Defendants in requirements for proper monitoring of Jail inmates who exhibit suicidal risks, and a failure to train Niagara County Deputy Sheriffs who staff the Jail to be more responsive to Cheek's mental health needs to establish Cheek was thereby deprived of adequate medical care, also fails to plausibly state a § 1983 claim against Niagara County. See Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir. 1993) (“Similarly, the simple recitation that there was a failure to train municipal employees does not suffice to allege that a municipal custom or policy caused the plaintiff's injury.”) See also Ball v. County of Erie, 2021 WL 5903308, at *3 (W.D.N.Y. Dec. 14, 2021) (“‘the duty to supervise and train Sheriff's deputies rests with the [county] Sheriff'”) (quoting Metcalf v. County of Erie, 104 N.Y.S.3d 815, 816 (4^th Dept. 2019))).

12 The exact dates of death of the suicide victims alleged was provided in only two of the cases cited by Plaintiff. See Amended Complaint, Dkt. 10-4, ¶ 33.

It is also well settled that a plaintiff who relies on Monell is required to allege with reasonable particularity the specific policy or practice alleged to have been created by the defendant municipality. Littlejohn v. City of New York, 795 F.3d 297, 315 (2d Cir. 2015) (dismissing Monell claim because plaintiff pleaded only a “general and conclusory allegation . . . that there was a policy”). Here, although the Amended Complaint alleges that as a result of County Defendants' “policies, customs, and practices,” County Defendants deprived Cheek of his rights to adequate care and treatment of his medical condition (Dkt. 10-4) ¶ 75, Defendants failed to adequately screen inmates for risk of suicide (Dkt. 10-4) ¶ 77, Defendants failed to properly monitor Cheek (Dkt. 10-4) ¶ 78, and Defendants failed to respond to Cheek's attempted suicide (Dkt. 10-4) ¶ 80, nowhere in the Amended Complaint's allegations in support of the First Cause of Action is there any reference to an actual policy or practice created by County Defendants with respect to providing mental health services to Jail inmates or the lack of proper monitoring of such inmates. Particularly, the preceding allegations reference that the Defendants' failures resulted from “policies, customs and practices” created by County Defendants but without any description of what policies, customs, or practices these Defendants are alleged to have created. Guerrero v. City of New York, 2013 WL 673872, at *2 (S.D.N.Y. Feb. 25, 2013) (“At the pleading stage, the mere assertion . . . that a municipality has such a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference.”) (internal quotation marks omitted); Maynard v. City of New York, 2013 WL 6667681, at *4 (S.D.N.Y. Dec. 17, 2013) (“Conclusory allegations that there was such a policy or custom, without identifying or alleging supporting facts is insufficient to state a [§ 1983] claim.”); see also Bones v. County of Monroe, 2023 WL 8809732, at *5 (W.D.N.Y. Dec. 20, 2023) (“To survive a motion to dismiss a municipal liability claim, a plaintiff must allege facts tending to support, at least circumstantially, an inference that a municipal policy or custom exists.” (quoting McLennon v. City of New York, 171 F.Supp.3d 69, 95 (E.D.N.Y. 2016)) (internal quotation marks and ellipses omitted and citing caselaw)); Santos v. New York City, 847 F.Supp.2d 573, 278 (S.D.N.Y. 2012) (plaintiff's failure to plead any facts, even circumstantially, that defendants engaged in unconstitutional actions based on a municipal policy or practice requires dismissal with prejudice). As such, Plaintiff's allegations regarding Niagara County's alleged policy and practice of failing to prevent inmate suicides are conclusory and thus insufficient to support Plaintiff's First Cause of Action against Niagara County.

In addition, under § 1983, in the absence of an official policy adopted by the municipality itself, municipal liability attaches only where “a deliberate choice to follow a course of action is made . . . by the official responsible for establishing final policy with respect to the subject matter in question.”¹³ Pembaur v. Cincinnati, 475 U.S. 469, 48384 (1986); Jeffes, 208 F.3d at 57 (“Where the contention is not that the actions complained of were taken pursuant to a local policy that was formally adopted or ratified but rather that they were taken or caused by an official whose actions represent official policy, the court must determine whether that official had final policymaking authority in the particular area involved.”) (citing Jett v. Dallas Independent School District, 491 U.S. 701, 737 (1989)); Wray, 490 F.3d at 195. In the instant case, Plaintiff does not dispute that Niagara County is a municipality for § 1983 and Monell purposes. See Amended Complaint (Dkt. 10-4) ¶ 7 (“Defendant Niagara County . . . is a municipal corporation . . ..”); ¶ 73 (“The County . . . maintained a policy, custom, or practice of deliberate indifference”). Establishing Monell liability against a county based on whether a county official had final policy-making authority in regard to the relevant subject matter is a question of state law. See Pembaur, 475 U.S. at 483-84 (county prosecutor or sheriff could establish county policy with respect to authority of deputy sheriffs to forcibly enter plaintiff's place of business to execute search warrant under Ohio law sufficient to hold county liable for such entry under § 1983); Jeffes, 208 F.3d at 57 (matter of whether official had final policymaking authority to be determined by court). The court therefore considers whether Sheriff Filicetti, the only “official,” Pembaur, 475 U.S. at 483-84, named by Plaintiff as a County “policy maker[ ],” see Amended Complaint (Dkt. 10-4) ¶ 64 (referencing Amended Complaint (Dkt. 10-4) ¶ 16) (“as ‘policy makers,' Defendants Niagara County and Sheriff Filicetti were aware that . . . [staff] at the Niagara County Jail would encounter inmates with mental disorders who required medical assistance to address potential suicidal risks”)), qualifies under New York law as an official with authority to act as a final policy-maker on behalf of Niagara County with respect to providing mental health care to inmates of the Jail sufficient to plausibly allege a § 1983 claim against Niagara County.

13 Unless indicated otherwise, all underlining is added.

Whether an alleged official may be considered as a final policy-maker on behalf of a municipal defendant depends on whether applicable state law confers such status on the official and whether such status includes policy-making authority over the subject area underlying a plaintiff's § 1983 claims. Pembaur, 475 U.S. at 483, 84; Jeffes, 208 F.3d at 57. In the instant case such subject matter includes, based on Plaintiff's allegations, the management of the Niagara County Jail and, specifically, the medical care, treatment, and monitoring of inmate-detainees with alleged mental health issues (see Amended Complaint (Dkt. 10-4) ¶ 15) (“Sheriff Filicetti . . . is charged by the laws of the State of New York with maintaining the County Jail and is responsible for the conditions of confinement, health, safety and medical care and treatment of inmates”) a question to be determined by the court as a matter of law, Pembaur, 475 U.S. at 48384; Jeffes, 208 F.3d at 57, and one the Plaintiff has the burden to establish to avoid dismissal of Plaintiff's First Case of Action against Niagara County. See Long v. County of Orleans, 540 F.Supp.3d 344, 352 (W.D.N.Y. 2021) (granting summary judgment to defendant county based on plaintiff's failure to establish defendant sheriff had final policy making authority on behalf of defendant county with respect to use of force to effect plaintiff's arrest by sheriff) (citing Jeffes, 208 F.3d at 57); see also Okongwu v. County of Erie, 2021 WL 1111152, at *6 (W.D.N.Y. Mar. 23, 2021) (granting summary judgment to defendant county based on plaintiff's failure to demonstrate the existence of a municipal policy by defendant county the result of which caused plaintiff's alleged injury); Edrei v. City of New York, 254 F.Supp.3d 565, 580 (S.D.N.Y. 2017) (“It is ultimately the plaintiff's burden to establish, as a matter of law, that [an] official had final policymaking authority in the particular area involved[,]”) (citations and alteration omitted), aff'd sub nom., Edrei v. Maguire, 892 F.3d 525 (2d Cir. 2018); Vaher v. Town of Orangetown, N.Y., 133 F.Supp.3d 574, 594 (N.D.N.Y. 2015) (“In order to hold a municipality liable for a single decision by municipal policymaker, a plaintiff must demonstrate the decisionmaker's final policymaking authority over the specific area of governmental behavior that is being challenged.”) (citation, alteration, and internal quotation marks omitted)); Lin v. County of Monroe, 66 F.Supp.3d 341, 351 (W.D.N.Y. 2014) (defendant county not responsible for developing and implementing policies, procedures, and regulations for any conduct of its sheriff's deputies; instead, sheriff is responsible for the policies that govern sheriff's deputies and sheriff is therefore not a county policymaker).

Here, Plaintiff's allegations make clear that the specific areas over which Sheriff Filicetti had final policy making authority are alleged to be the care and custody, including medical services, of Jail inmates. See Amended Complaint (Dkt. 10-4) ¶ 9 (“Sheriff Filicetti . . . was responsible for creating the policies, practices, and procedures at the Niagara County Jail.”); ¶ 10 (“Sheriff Filicetti . . . has the custody, control and charge of Niagara County Jail and the inmates confined within”); ¶ 15 (“Sheriff Filicetti ... is responsible [under state law] . . . for health, safety, and medical care and treatment of [Jail] inmates.”). Plaintiff further alleges that Niagara County and Sheriff Filicetti as “policymakers” were aware that Jail employees would have contact with inmates in need of mental health intervention and their failure to provide such treatment may result in suicides. Amended Complaint (Dkt. 10-4) ¶ 16. However, despite Plaintiff's allegations, a fair review of the Amended Complaint fails to reveal any allegations describing a specific policy or practice relating to the medical care and custody of inmates established by a County official sufficient to impose § 1983 liability upon Niagara County under Monell.

Under N.Y. Corrections Law § 500-c[4] (“§ 500-c[4]”), the Niagara County Sheriff “shall receive and safely keep in the county jail of his county each person lawfully committed to his custody.” See Villar v. Howard, 64 N.E.3d 280, 283 (N.Y. 2016) (upon assuming custody of pretrial detainee, county sheriff owes a duty to care for detainee). See also Woods v. Town of Tonawanda, 2020 WL 1703537, at *19 (W.D.N.Y. Apr. 8, 2020) (Under § 500-c[4] “sheriff is exclusively responsible for the custody treatment, care, and control of inmates.”) (citing New York caselaw). Under N.Y. County Law § 217, which states that a county is required to maintain a county jail, a county is only responsible for maintaining the physical structure of the jail not the general safety of inmates unless such safety can be fairly alleged to have been impaired by a deficiency arising from the county's alleged failure to properly maintain the physical structure of the jail. See Ball, 2021 WL 5903308, at *4 (denying defendant county's motion to dismiss where plaintiff alleged he suffered a spider bite while in custody at defendant's jail). Plaintiff cites to no authority supporting that under New York law a county has any legal responsibility for the medical care of inmates detained in a county jail and the court's research reveals none. Thus, under New York law, the County Sheriff, Defendant Filicetti, not Niagara County, is solely responsible for the care, specifically medical care, of inmates while in the Sheriff's custody.

Finally, as noted, Discussion, supra, at 20, Plaintiff asserts that the recent state court decision in Prezioso supports Plaintiff's contention that the Amended Complaint sufficiently alleges a § 1983 claim against Niagara County based on an alleged “deliberate policy and a pattern of conduct which, if proven, demonstrate a willful refusal or failure to provide adequate medical care to persons detained in the [Niagara County] jail.” Prezioso, 183 N.Y.S.3d at 829 (citing Cooper v. Morin, 375 N.Y.S.2d 928, 934 (4^thDept. 1975) (“Cooper”)). Plaintiff's Memorandum of Law (Dkt. 16-2) at 14. In opposition to Plaintiff's reliance on Prezioso, Defendants contend Prezioso provides no support to Plaintiff's claim as it is a state, not federal, court decision and, as such, uses a different pleading standard, i.e., the Iqbal plausibility requirement. County Defendants' Reply, Dkt. 17-1, at 10. See, e.g, Philadelphia Indemnity Ins. Company v. Indian Harbor Ins. Company, 434 F.Supp.3d 4, 10 (E.D.N.Y. 2020) (“Decisions of a state's intermediate and lower courts are not binding on federal courts.”). See also Rizvi v. North Shore Hematology-Oncology Assocs., P.C., 2020 WL 6495585, at *4 (S.Ct. Suffolk Cnty. Nov. 4, 2020) (“New York's ‘relaxed notice pleading standard' remains undisturbed post Ashcroft v. Iqbal.”) (quoting Artis v. Random House, 936 N.Y.S.2d 479, 484 (Sup.Ct. New York Cnty. 2011)).

However, a careful reading of the court's decision in Prezioso fails to indicate that the court considered Monell's requirement that absent a formal policy adopted by the municipality for § 1983 liability to attach to a municipality such as the County, an alleged municipal policy or practice causing the plaintiff's constitutional rights to be violated must be found to have been established by a county official with final policy-making authority with regard to the relevant subject matter, i.e., the medical needs of jail inmates. See Prezioso, 184 N.Y.S.3d at 829; see Discussion, supra, at 26-29 (citing caselaw). Nor do the cases relied on by Prezioso support that this prerequisite to § 1983 municipal liability was considered. For example, in Andrews v. County of Cayuga, 38 N.Y.S.3d 304, 305 (4^th Dept. 2016), see Prezioso, 184 N.Y.S.3d at 829, in holding Plaintiff's detainee's allegations of inadequate medical care by jail personnel against the county defendant sufficiently alleged a § 1983 claim, the court did not address this prerequisite to § 1983 municipal liability. Additionally, Cooper is inapposite as in that case plaintiff did not appeal the trial court's dismissal of plaintiff's § 1983 claim against the defendant county executive, see Cooper, 375 N.Y.S.2d at 929-30, and, in any event, the decision predated Monell. Accordingly, the court declines to follow Prezioso as authority to impose § 1983 liability on Niagara County, as Plaintiff asserts. See Plaintiff's Memorandum of Law (Dkt. 16-2) at 14.

Therefore, Plaintiff's failure to plausibly allege that Sheriff Filicetti, or any other official, acted as a municipal official with final policy-making authority on behalf of Niagara County and in such capacity created an official policy or practice of the County with respect to the medical care and monitoring of pre-trial detainees held in the Jail and to plausibly allege the existence of a policy or practice by the County which, through the actions or inactions of County employees resulted in Cheek's suicide, supports fully County Defendants' motion to dismiss. Accordingly, as Plaintiff has failed to plausibly allege Niagara County is liable under § 1983 for Cheek's alleged failure to receive adequate medical care and monitoring when in County Defendants' custody as a result of a policy or practice created by Niagara County, County Defendants' Motion to Dismiss Plaintiff's First Cause of Action against Niagara County should be GRANTED.

B. Sheriff Filicetti.

In this case, Plaintiff sued Sheriff Filicetti in both his official and individual capacities. See Amended Complaint (Dkt. 10-4) ¶ 9 (“Sheriff Filicetti is sued in both his individual and official capacities”). Plaintiff also sues Niagara County, a municipality which Sheriff Filicetti serves as its Sheriff. See Amended Complaint (Dkt. 10-4) ¶¶ 7, 9.

At the outset, Sheriff Filicetti contends that Plaintiff's First Cause of Action against him in his official capacity should be dismissed as essentially a claim against Niagara County. See County Defendants' Memorandum of Law (Dkt. 10-5) at 32 (citing several cases). Plaintiff has not responded to this argument. See Plaintiff's Memorandum of Law (Dkt. 16-2) (passim). Section 1983 claims against municipal officials in their official capacity are considered to be claims against the defendants' municipality itself and, as such, are subject to dismissal as duplicative of the claim against the municipality which the official serves. See Wierzbic v. County of Erie, 2018 WL 550521, at *6 (W.D.N.Y. Jan. 25, 2018) (citing Curley v. Vill. of Suffern, 268 F.3d 65, 72 (2d Cir. 2001)).

Accordingly, Plaintiff's First Cause of Action against Sheriff Filicetti in his official capacity should be dismissed and County Defendants' motion on this ground should be GRANTED.

As to Plaintiff's First Cause of Action against Sheriff Filicetti in his individual capacity, Sheriff Filicetti contends the Amended Complaint fails to plausibly allege that Sheriff Filicetti was personally involved in any of the alleged constitutional deprivations alleged by Plaintiff. See County Defendants' Memorandum of Law (Dkt. 10-5) at 33-36 (citing caselaw). Plaintiff opposes Defendants' motion as to this issue asserting Plaintiff has plausibly pleaded that Sheriff Filicetti created a policy or custom under which the unconstitutional practices alleged by Plaintiff, to wit: the inadequate mental health services and monitoring needed by Cheek to prevent his suicide, occurred; that Sheriff Filicetti allowed the continuation of such policy or custom; or that Sheriff Filicetti was grossly negligent in supervising his subordinates, presumably Defendant John Does 15, who committed the alleged wrongful acts. Plaintiff's Memorandum of Law (Dkt. 16-2) at 10. Plaintiff further contends that the Amended Complaint plausibly alleges Filicetti's personal involvement in Cheek's improper treatment by denying Cheek appropriate medical attention for Cheek's mental health problem as alleged in the Amended Complaint (Dkt. 10-4) ¶ 28, in failing to refer Cheek to a hospital to assist in treating Cheek's mental health symptoms as alleged in paragraph 31 of the Amended Complaint, as a result of the Sheriff's failure to provide proper dosage of Cheek's prescribed medication as alleged in paragraph 46 of the Amended Complaint, see id., at 12, and that, as alleged in paragraph 66 of the Amended Complaint, despite being aware of Cheek's deteriorating mental health, Filicetti ignored Cheek's condition and with deliberate indifference failed to properly monitor Cheek as required by N.Y. Code of Rules and Regulations Title 9 Part 7003, and took no action to obtain appropriate medical assistance for Cheek. Id. Sheriff Filicetti also contends that Plaintiff's § 1983 claim is subject to dismissal based on qualified immunity. See County Defendants' Memorandum of Law (Dkt. 10-5) at 44-45 (citing caselaw). Plaintiff has not responded to this latter contention.

“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.'” Kravitz v. Purcell, 87 F.4^th 111, 129 (2d Cir. 2023) (quoting Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013)). Specifically, “‘a plaintiff must plead and prove ‘that each Government-official defendant, through the official's own individual actions, has violated the Constitution.'” Id. (quoting Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (“Tangreti”) (quoting Iqbal, 556 U.S. at 672)). Whether Plaintiff's allegations of Sheriff Filicetti's personal involvement are considered as a matter of supervisory liability or based on the Sheriff's personal involvement in the alleged constitutional deprivations, they are insufficient. Here, Plaintiff's primary basis for asserting Sheriff Filicetti was personally involved in Cheek's deprivation of essential medical care is that Filicetti was responsible for creating a policy or practice whereby the alleged “unconstitutional practices occurred,” Plaintiff's Memorandum of Law (Dkt. 16-2) at 10, that Sheriff Filicetti allowed the continuance of such unconstitutional practices, or was grossly negligent in supervising his employees, id., which bases were previously available as a means by which supervisory liability under § 1983 could be established. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (“Colon”). In Colon, the Second Circuit enumerated five ways in which a supervising defendant's personal involvement could be established. “The personal involvement for § 1983 purposes of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.” Id. (citing Williams v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)).

In Tangreti, however, the Second Circuit rescinded such broad forms of supervisory liability and, in keeping with the Supreme Court's declaration in Iqbal concerning § 1983's personal involvement requirement, held that a § 1983 plaintiff “must plead and prove ‘that each Government-official defendant, through the official's own individual actions, has violated the Constitution.'” Tangreti, 983 F.3d at 618 (quoting Iqbal, 556 U.S. at 676). This court has found that after Tangreti, only the first Colon criteria, that defendant directly participated in the alleged unconstitutional violation - the so-called “active conduct” standard, and the third Colon criteria, that defendant “created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom,” sufficient to establish a supervisory defendant's personal involvement in a § 1983 case as required to establish a viable basis for defendant's personal involvement in the alleged unconstitutional violation. See Marcus v. City of Buffalo, 2023 WL 5154167, at *5 (W.D.N.Y. Aug. 10, 2023) (citing Tangreti, 983 F.3d at 617 n. 4) (citing cases)),¹⁴ report and recommendation adopted, 2023 WL 7016546 (W.D.N.Y. Oct. 25, 2023). Here, as discussed, supra, with respect to Niagara County's alleged § 1983 liability, Plaintiff's allegations in support of Sheriff Filicetti's personal involvement based on the third Colon criteria are nonetheless insufficient in that they also fail to allege, with the required degree of specificity or factual basis, as required by Iqbal, any description as to the nature of such unconstitutional policies, customs and practices allegedly adopted by Sheriff Filicetti or that he allowed the continuance of such policies, customs and practices sufficient to establish Filicetti's personal involvement in the alleged constitutional violations. See, Discussion, supra, at 20-26.

14 See Tangreti, 983 F.3d at 617 n. 4 (quoting Bellamy v. Mt. Vernon Hosp. 2009 WL 1835939, at *6 (S.D.N.Y. June 26, 2009) (“Iqbal's ‘active conduct' standard only imposes liability on a supervisor through section 1983 if that supervisor actively had a hand in the alleged constitutional violation.”)).

To avoid a finding that allegations purporting to plausibly show the requisite degree of a § 1983 defendant's personal involvement are conclusory and thus insufficient to state a claim, a plaintiff must also allege a “factual basis” to demonstrate defendant's personal involvement in the alleged constitutional deprivation through Sheriff Filicetti's ‘active conduct' in this case. See Houghton v. Cardone, 295 F.Supp.2d 268, 276 (W.D.N.Y. 2003) (requiring “factual basis” to support allegations that § 1983 defendant was personally involved in alleged “deprivations”) (citing caselaw)). In Houghton, the court found plaintiff's allegations that defendant failed to adequately train or supervise his subordinates, knew about and tolerated the officers' allegedly unlawful behavior, and “failed to institute a proper system of review and reprimand” to be conclusory and nonfactual. Id. Plaintiff's allegations are likewise insufficient. See, e.g., Amended Complaint ¶ 66 (Filicetti “recklessly took no action to summon or obtain appropriate medical assistance for . . . [Cheek]”). Further, none of the Amended Complaint's allegations asserted by Plaintiff to satisfy § 1983's personal involvement requirement for Sheriff Filicetti based on Filicetti's ‘active conduct,' see Plaintiff's Memorandum of Law (Dkt. 16-2) at 12 (referencing Amended Complaint (Dkt. 10-4) ¶¶ 28, 31, 46 and 66), is sufficient.

Specifically, in support of Plaintiff's allegation pleaded in paragraph 28 of the Amended Complaint, Plaintiff alleges Sheriff Filicetti denied Cheek “appropriate medical attention in relation to his mental health.” Such a generalized allegation, however, fails to provide any “factual basis,” Houghton, 295 F.Supp.2d at 296, from which it can be plausibly inferred that the Sheriff had engaged in any interactions with Cheek involving Cheek's alleged need for medical treatment during Cheek's custody nor how the Sheriff is alleged to have actually denied Cheek such medical attention. See Schiff v. Suffolk County Police Department, 2015 WL 1774704 at **3, 7 (E.D.N.Y. Apr. 20, 2015) (plaintiff's motion to amend denied where plaintiff sought to assert a claim against, inter alia, county sheriff, for failing to provide medical treatment where proposed amended complaint contained no allegations of any interactions between sheriff and the plaintiff). This conclusion is further supported by Plaintiff's allegations that the medical treatment of Jail inmates had been, pursuant to N.Y. Correction Law § 501 (requiring county legislature to appoint physician or medical services corporation to provide medical services to jail inmates (“§ 501”), contracted out to PrimeCare and that Dr. Cervantes was the physician initially assigned to evaluate and provide medical treatment to Cheek for his PTSD thus undermining Plaintiff's allegations that Sheriff Filicetti personally failed to provide such care to Cheek. See Amended Complaint ¶¶ 17-19, 21. Significantly, nowhere in the Amended Complaint does Plaintiff assert Sheriff Filicetti interfered with PrimeCare or Dr. Cervantes in the care and treatment of Cheek. See Amended Complaint (Dkt. 10-4) (passim). Nor does Plaintiff include in the Amended Complaint the contract between the County and PrimeCare from which it could be determined whether Sheriff Filicetti had any supervisory authority with respect to PrimeCare's responsibility under the contract with Niagara County for providing medical services to Jail inmates.

Similarly, in paragraph 31 of the Amended Complaint, Plaintiff alleges Sheriff Filicetti's personal involvement in violating Cheek's Fourteenth Amendment rights by Filicetti's failing to refer Cheek to a hospital or administer medication to Cheek for his mental health condition. Again, Plaintiff's allegation fails to provide any factual basis, see Houghton, 295 F.Supp.2d at 276, in support of the allegation to plausibly infer Sheriff Filicetti was personally involved through his ‘active conduct,' see, Discussion, supra, at 36, n.14 (quoting Bellamy, 2009 WL 1835939, at *6) in such alleged failure and is rendered implausible given that Plaintiff also alleges PrimeCare and Dr. Cervantes were responsible for Cheek's medical care, Amended Complaint (Dkt. 10-4) ¶ 21, or that Sheriff Filicetti somehow interfered with PrimeCare or Dr. Cervantes's ability to refer Cheek to a hospital. See Rosseter v. Annetts, 2012 WL 4486082, at *8 (N.D.N.Y. June 29, 2012) (where plaintiff alleged sheriff provided inadequate medical care including delayed treatment and misdiagnosis of plaintiff's condition, plaintiff failed to provide evidence of sheriff's personal involvement where no factual basis existed to support that sheriff had examined or diagnosed plaintiff's injury and was not directly responsible for scheduling treatments or outside specialists visits), report and recommendation adopted, 2012 WL 4482858 (N.D.N.Y. Sept. 27, 2012). By the same token, Plaintiff's allegation in the Amended Complaint paragraph 46 in support of Plaintiff's assertion of Sheriff Filicetti's personal involvement with Cheek's Fourteenth Amendment right to proper medical care that the Sheriff provided improper medication and dosages, also is similarly deficient. See Mastroianni v. Reilly, 602 F.Supp.2d 425, 439 (E.D.N.Y. 2009) (defendant sheriff not personally involved in plaintiff's medical care for a heart condition where medical care was “delegated,”pursuant to § 501, to a medical care corporation, as in this case, through a contract with the county).

Additionally, the court takes judicial notice that in New York State only licensed health care professionals are legally authorized to prescribe medications. See N.Y. Educ. Law § 6810[1]. As Sheriff Filicetti is not alleged by Plaintiff to be legally authorized to issue drug prescriptions or to have personally interacted with Cheek, it follows that Plaintiff's allegation of § 1983 liability against Filicetti on this basis is not plausible.

In the instant case, Plaintiff has alleged Defendant PrimeCare was under contract with Niagara County and Sheriff Filicetti to provide health care services to inmates at Niagara County Jail, Amended Complaint (Dkt. 10-4) ¶¶ 17-20, and that Defendant Dr. Cervantes was responsible for Cheek's medical care, Amended Complaint (Dkt. 10-4) ¶ 24, thus rendering it implausible based on any factual allegation as required by Iqbal that Sheriff Filicetti had any significant personal interaction with Cheek sufficient to support any of Plaintiff's allegations asserting the Sheriff's personal involvement with Cheek's alleged constitutional deprivation of any necessary mental health treatment. See Lara-Grimaldi v. County of Putnam, 2018 WL 1626348, at *11 (S.D.N.Y. Mar. 29, 2018) (§ 1983 complaint against sheriff based on plaintiff's decedent's suicide while in defendant sheriff's custody dismissed for lack of any allegation of personal involvement by sheriff where complaint failed to allege sheriff interacted with plaintiff's decedent). Finally, in paragraph 66 of the Amended Complaint, Plaintiff asserts Sheriff Filicetti failed to adequately monitor Cheek as required by 9 N.Y.C.R.R. Pt. 7003.3(h) (providing guidelines for inmate monitoring by county jails regarding inmates with special need of supervision based on prisoner's “condition, illness or injury”) and obtain appropriate medical assistance for Cheek. Such allegation is also deficient in that it fails to provide any facts, i.e., “occurrences,” see Facts, Black's Law Dictionary (10^th ed. 2014), upon which it could reasonably be inferred that Sheriff Filicetti had any personal contact with Plaintiff or that he had been directly responsible for performing any guard duty, including monitoring, for Cheek during Cheek's custody at the Jail. Moreover, it is well-established that a violation of a state administrative regulation is an insufficient basis upon which to predicate § 1983 liability. See Doe v. Connecticut Dept. of Child and Youth Servs., 911 F.2d 868, 869 (2d Cir. 1990) (“‘[A] violation of state law neither gives [plaintiffs] a § 1983 claim nor deprives defendants of the defense of qualified immunity to a proper § 1983 claim.'”) (quoting Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987)); Hyman v. Holder, 2001 WL 262665, at *6 (S.D.N.Y. Mar. 15, 2001) (plaintiff's allegation that defendants failed to follow prison regulations insufficient basis for § 1983 claim) (quoting Doe, 911 F.2d at 869).

Further, Plaintiff's allegations, on “information and belief,” asserting in substance that Sheriff Filicetti was aware of Cheek's “history of self-injurious behavior, as well as suicidal ideations and suicide attempts,” Amended Complaint (Dkt. 10-4) ¶ 45 and was “directly warned of [Cheek's] suicidal inclinations . . . immediately prior to his death, Id., ¶ 49, also fail to plausibly allege personal involvement as such allegations fail to provide any factual basis informing the Sheriff how such prior knowledge was obtained. See Curtis v. Cenlar FSB, 645 Fed.Appx. 17, 20-21 (2d Cir. 2016) (“The relevant allegations in the verified complaint - all made ‘[u]pon information and belief' - are merely speculative, and by themselves insufficient to defeat defendants' motion.”); James v. Monroe County, 2022 WL 17155831, at *8 (W.D.N.Y. Nov. 22, 2022) (“”where . . . the pleading contains allegations made . . . ‘upon information and belief,' the pleading must include the facts upon which the beliefs are founded”) (citing caselaw); Prince v. Madison Square Garden, 427 F.Supp.2d 372, 384 (S.D.N.Y. 2006) (“Conclusory pleadings on information and belief are inadequate as a matter of law to survive a motion to dismiss” unless they are “accompanied by a statement of facts upon which the belief is found.”) (internal quotations and citations omitted). “Even where facts are peculiarly within the possession and control of the defendant, the plaintiff must allege some factual basis for the allegations made upon information and belief.” James, 2022 WL 17155831, at *8 (information and belief allegation insufficient); compare Case v. Anderson, 2017 WL 3701863, at *12 (S.D.N.Y. Aug. 25, 2017) (finding plaintiff's allegations that sheriff's personal involvement in decedent's arraignment and multiple prior incarcerations at the county jail sufficiently informed sheriff of decedent's mental health issues); see also Houghton, 295 F.Supp.2d at 296 (finding plaintiff's allegations that defendant sheriff knew about and tolerated the officers' allegedly unlawful behavior “conclusory” and thus insufficient to allege sheriff's personal involvement in officers' alleged deprivations). Here, no similar factual material tending to plausibly plead Sheriff Filicetti had, or recklessly disregarded, awareness of Cheek's risk of suicide, is provided by Plaintiff's allegations and, as such, they do not plausibly allege Sheriff Filicetti's personal involvement in Cheek's alleged denial of adequate medical care as Plaintiff asserts. See Iqbal, 556 U.S. at 678 (requiring “sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face'”) (quoting Twombly, 550 U.S. at 570); Acosta v. Thomas, 837 Fed.Appx. 32, 36 (2d Cir. 2020) (defendant chief medical officer not personally involved with inmate's care in the absence of any allegation that such defendants examined, diagnosed or made any treatment decision). Thus, none of the four specific allegations asserted by Plaintiff, see Plaintiff's Memorandum of Law (Dkt. 16-2) at 12, satisfy the personal involvement requirement for § 1983 liability against Defendant Sheriff Filicetti in his individual capacity, nor are Plaintiff's allegations of Sheriff Filicetti's knowledge of Cheek's mental health condition, see Shenk v. Cattaraugus County, 305 Fed.Appx. 751, 754 (2d Cir. 2009) (defendant deputy sheriffs not personally involved where, despite knowledge of pretrial detainee's mental health impairment, there were no evidence such defendants knew or should have known such impairment posed substantial risk of harm), sufficient to plausibly allege Sheriff Filicetti's personal involvement in the alleged deprivation of Cheek's Fourteenth Amendment right to adequate medical care, and County Defendants' motion on this ground should be GRANTED.

As regards to Sheriff Filicetti's assertion that qualified immunity is applicable to Plaintiff's First Cause of Action, see County Defendants' Memorandum of Law (Dkt. 105) at 45, because the undersigned is recommending that Plaintiff's claim against the County and Sheriff Filicetti be dismissed for failure to state a claim, Sheriff Filicetti's assertion of qualified immunity need not be determined at this time. See Bones, 2023 WL 8809732, at *7 (where court “court has determined that Plaintiff does not plausibly allege a constitutional violation,” it is not necessary to determine defendant's qualified immunity defense). Should the District Judge disagree with such recommendation, Sheriff Filicetti may seek qualified immunity on summary judgment. See Cadwallader v. Devlin, 155 F.Supp.3d 175, 191 (N.D.N.Y. 2016) (recognizing defendant may raise qualified immunity at a later stage in the case following court's denial of defendants' Rule 12(b)(6) motions).

C. Dr. Cervantes.

In support of Defendant Dr. Cervantes's motion to dismiss Plaintiff's First Cause of Action, Dr. Cervantes contends, based on Plaintiff's allegations generally asserting that Niagara County, Sheriff Filicetti and Dr. Cervantes failed to provide Cheek with proper mental health medical care, that, as to Dr. Cervantes, a licensed medical doctor, (1) such allegation amounts to medical malpractice which is insufficient to plausibly allege Dr. Cervantes was guilty of deliberate indifference, an element of Plaintiff's Fourteenth Amendment claim, Markel Declaration (Dkt. 11-1) ¶ 8; see also Dr. Cervantes's Memorandum of Law (Dkt. 11-5) at 14 (citing caselaw), (2) that Plaintiff's allegations fail to plausibly plead Dr. Cervantes was personally involved with Cheek, id. at 14-15, (3) that Dr. Cervantes did not act with deliberate indifference in her alleged interactions with Cheek, id. at 15-16, and (4) that, in any event, Dr. Cervantes is entitled to qualified immunity on Plaintiff's § 1983 claim. Id. at 16.

Preliminarily, the court notes that as an employee of Defendant PrimeCare, the company Plaintiff alleges had a contract with Niagara County to provide medical services to Niagara County Jail inmates, Amended Complaint ¶¶ 17, 21, Dr. Cervantes has not contended that she is not a state actor for § 1983 purposes. See Doe v. Torres, 2006 WL 290480, at *9 (S.D.N.Y. Feb. 8, 2006) (citing West v. Atkins, 487 U.S. 42, 54 (1988) (“[a] a physician employed by [a state] to provide medical services to state prison inmates act[s] under color of state law for purposes of § 1983 when undertaking his duties in treating [a prisoner's] injury”)).

In opposition to Dr. Cervantes's contentions, Plaintiff argues that given Plaintiff's allegations that Cheek presented with serious mental health needs which were known to Defendants, including “potentially expressed” suicide threats, Amended Complaint (Dkt. 10-4) ¶ 32, Dr. Cervantes failed to properly diagnose Cheek as a likely suicide risk in light of his mental health condition, Amended Complaint (Dkt. 10-4) ¶¶ 30, 34. Plaintiff's Memorandum of Law (Dkt. 16-2) at 6-7. Plaintiff further contends that Dr. Cervantes improperly prescribed Prazosin for Cheek, a blood pressure medication with known adverse side-effects including “worsening PTSD nightmares . . . causing suicidal ideations” as alleged by Plaintiff, Amended Complaint (Dkt. 10-4) ¶ 39, and that Dr. Cervantes's failure to prescribe Cheek with proper medications to address his alleged suicidal inclinations was reckless. Id. ¶ 41; Plaintiff's Memorandum of Law (Dkt. 16-2) at 12. Plaintiff also asserts Dr. Cervantes failed to provide Cheek with his “required medications,” see Amended Complaint (Dkt. 10-4) ¶ 42, arguing that the Amended Complaint plausibly alleges Dr. Cervantes's alleged conduct amounts to deliberate indifference not medical malpractice. Plaintiff's Memorandum (Dkt. 16-2) at 11-12. Additionally, Plaintiff asserts Dr. Cervantes's contention that her treatment of Cheek began January 19, 2022 and ended February 2, 2022, upon her review of Cheek's medical chart, Dr. Cervantes Affidavit, Markel Declaration (Dkt. 11-4) ¶ 6 (“Cervantes Affidavit”),¹⁵ purporting to absolve Dr. Cervantes of liability, is without merit because Dr. Cervantes had a “continuing duty” to render proper medical care to Cheek up to the time Cheek committed suicide, but failed to do so causing Cheek's mental condition to deteriorate. Plaintiff's Memorandum (Dkt. 16-2) at 12.

15 In the Cervantes Affidavit, Dr. Cervantes avers that she first encountered Cheek on January 19, 2022, and after receiving his complaint of experiencing nightmares prescribed 2 mg of Prazosin at night, and that she expected Cheek would follow-up in 3-4 weeks. Cervantes Affidavit ¶ 5. Dr. Cervantes also avers that she last reviewed Cheek's medical chart on February 2, 2022. Id. at ¶ 6. Dr. Cervantes further avers that on February 21, 2022, Cheek was treated by Nurse Practitioner Paula Dillman who diagnosed Cheek with Unspecified Depressive Disorder and Anxiety Disorder and that NP Dillman discontinued Prazosin and prescribed a different medication, Zoloft, and recommended a follow-up in eight weeks. Id. at ¶ 7. Finally, Dr. Cervantes avers that she was not a “collaborating physician” for NP Dillman, had no supervisory authority over NP Dillman, and did not discuss Cheek with Dillman. Id. ¶ 8.

With regard to Dr. Cervantes's reliance on the Cervantes Affidavit, see Dr. Cervantes's Memorandum of Law (Dkt. 11-5) at 7, 8, although on a motion to dismiss, the court may consider papers attached to the complaint, see DiFolco, 622 F.3d at 111 (on a Rule 12(b)(6) motion court considers “documents attached to [pleading] as exhibits”), the court may not consider exhibits proffered by defendant unless the court, in its discretion, treats the Rule 12(b)(6) motion as one seeking summary judgment thus allowing plaintiff an opportunity to provide a responsive filing. Parada v. Banco Industrial De Venezuela, C.A., 753 F.3d 62, 68 (2d Cir. 2014) (“‘[A] district court acts properly in converting a [Rule 12(b)(6)] motion . . . into a motion for summary judgment when the motion presents matters outside the pleadings' and the court gives ‘sufficient notice to an opposing party and an opportunity for that party to respond.'” (quoting Hernandez v. Coffey, 307 (2d Cir. 2009)). Here, the court declines to convert the proceeding to one seeking summary judgment by Dr. Cervantes and, accordingly, does not consider the Cervantes Affidavit.

“A plaintiff must show ‘something more than mere negligence' to establish deliberate indifference in the Fourteenth Amendment context.” Charles v. Orange County, 925 F.3d 73, 87 (2d Cir. 2019) (quoting Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996)). “Errors in professional judgment do not rise to a level of deliberate indifference necessary to recovery under a § 1983 action.” Bowman v. Campbell, 850 F.Supp. 144, 147 (N.D.N.Y. 1994) (citing Bryant v. Maffucci, 923 F.2d 878, 983 (2d Cir. 1991) (citing Estelle v. Gamble, 429 U.S. 97, 105-06 (1976), cert. denied, 502 U.S. 849 (1991))). “Thus, ‘mere medical malpractice is not tantamount to deliberate indifference, but it may rise to the level of deliberate indifference when it involves culpable recklessness, i.e., an act or a failure to act ... that evinces a conscious disregard of a substantial risk of serious harm.'” Charles, 925 F.3d at 87 (quoting Cuoco v. Moritsugu, 222 F.3 99, 106 (2d Cir. 2000)). Accordingly, the court addresses whether Plaintiff has plausibly pleaded that Dr. Cervantes acted with deliberate indifference with regard to her alleged failure to adequately treat Cheek.

“While in custody, a pretrial detainee has a Fourteenth Amendment substantive due process right to care and protection, including protection from suicide.” Kelsey v. City of New York, 306 Fed.Appx. 700, 702 (2d Cir. 2009) (“Kelsey”) (citing Cuoco, 222 at 106; Weyant, 101 F.3d at 856). A pretrial detainee's due process right extends to protection of the detainee against suicide “resulting from a pre-existing mental health disorder,” Case, 2017 WL 3701863, at *8 (citing Kelsey, 306 Fed.Appx. at 701 and Hare v. City of Corinth, Miss., 74 F.3d 633, 648 (5^th Cir. 1996)). “‘A detainee may establish a § 1983 claim for allegedly unconstitutional conditions of confinement'- such as a denial of mental health care - ‘by showing that the [state] officers acted with deliberate indifference to the challenged conditions.'” Case, 2017 WL 3701863, at *8 (quoting Darnell, 846 F.3d at 29 (quoting Benjamin v. Fraser, 343 F.3d 35, 50 (2d Cir. 2003))). A § 1983 defendant's deliberate indifference with respect to a plaintiff's mental health care is plausibly pleaded where a plaintiff alleges the failure to provide adequate mental health care was sufficiently serious to constitute an objective deprivation of the right to due process and that the defendant state actor either acted “‘intentionally'” in depriving a detainee of such due process right “‘or recklessly failed to act with reasonable care ... even though the defendant-official knew, or should have known, that the condition posed an excessive risk to the [detainee's] health or safety.'” Lara-Grimaldi, 2018 WL 1626348, at *6 (quoting Darnell, 849 F.3d at 35).

Deliberate indifference requires plaintiff show the detainee was actually deprived of adequate medical care and that the offending conduct or omissions create an “unreasonable risk of serious damage to the [detainee's] health,” id., in the instant case, Cheek's suicide. Treatment of psychiatric or psychological conditions as in the case of depression or suicide attempts have been held to constitute a serious medical need. See Case, 2017 WL 3701863, at **7, 9. Here, Plaintiff alleges Cheek was treated by Dr. Cervantes for post-traumatic stress disorder (“PTSD”) nightmares, see Amended Complaint (Dkt. 10-4) ¶ 39, a condition this court has held to be “a serious medical need.” Bruno v. Annucci, 2023 WL 2601947, at *6 (W.D.N.Y. Mar. 22, 2023) (holding plaintiff's allegations of untreated PTSD established a serious medical condition satisfying the objective prong of a § 1983 claim for inadequate medical care). Courts have also held that treatment of a psychiatric or psychological condition including protection from suicide may present a serious medical need. Kelsey, 306 Fed.Appx. at 702; Cuoco, 222 F.3d at 106. In addition to Cheek's PTSD diagnosis, Plaintiff alleges, on information and belief, that unidentified “staff” at the Jail became “familiar” with Cheek's medical records which indicated Cheek's had “high risk factors” including “potential suicidal issues.” Amended Complaint (Dkt. 10-4) ¶ 27. Plaintiff further alleges on information and belief that such records included “suicide threats [that were] potentially expressed,” Amended Complaint (Dkt. 10-4) ¶ 32, that Defendants had “actual and constructive knowledge” of Cheek's “suicidal ideations and suicide attempts,” Amended Complaint (Dkt. 10-4) ¶ 45, and that Defendants were “directly warned of the [Cheek's] suicidal inclinations” “immediately prior to his death.” Amended Complaint (Dkt. 10-4) ¶ 49. However, upon review, the court finds Plaintiff's allegations to be lacking in any required factual basis, inconsistent, conclusory and selfcontradictory and therefore fail to plausibly plead Dr. Cervantes acted with reckless disregard to an excessive risk to Cheek's health or safety, i.e., imminent suicide, that Dr. Cervantes knew or reasonably should have known of. Additionally, allegations made upon information and belief are insufficient to sustain Plaintiff's burden to demonstrate the allegations establish a plausible claim rendering the allegations as speculative. See Discussion, supra, at 41-42 (citing caselaw).

Specifically, Plaintiff's allegation that “staff” at the Jail became aware that Cheek's medical records included “high risk factors” and “potential suicidal issues,” made on information and belief, fails to state the identity of the “staff,” who became aware of Cheek's medical records, the exact nature of such high risk factors, and how Dr. Cervantes became aware of such “records.” See Houghton, 295 F.Supp.2d at 276 (plaintiff failed to allege facts upon which the basis for defendant's knowledge of officers' alleged unlawful behavior could be assessed and were thereupon “conclusory”). Moreover, that Cheek may have had “potential suicidal issues,” Amended Complaint (Dkt. 10-4) ¶ 27, also alleged on information and belief, is an ambiguous assertion which fails to plausibly allege Defendants were in fact aware that Cheek's mental condition presented an “excessive risk to. . . [Cheek's] health or safety that the [Dr. Cervantes] knew or reasonably should have known.” Darnell, 846 F.3d at 35. Further, such allegation is also inconsistent with Plaintiff's allegation in paragraph 49 of the Amended Complaint that Defendants were directly warned of Cheek's “suicidal inclinations” (underlining added) prior to his death. See Grant v. County of Erie, 542 Fed.Appx. 21, 23 (2d Cir. 2013) (courts not required to accept contradictory allegations or when “claim is based on wholly conclusory and inconsistent allegations”) (citing cases); Spiteri v. Russo, 2013 WL 4806960, at *8 (E.D.N.Y. Sept. 7, 2013) (court not obligated to reconcile or accept internally inconsistent pleadings nor contradictory allegations on motion to dismiss) (citing caselaw). A “potential” suicidal issue, see Amended Complaint (Dkt. 10-4) ¶ 27, it may be fairly said, is a far cry from an actual threat of an imminent suicide constituting “an excessive risk” to Cheek's “health and safety,” Darnell, 846 F.3d at 35, and that Cheek harbored an “inclination,” see Amended Complaint (Dkt. 10-4) ¶ 49, to commit suicide hardly suffices to plausibly allege Dr. Cervantes was aware of, or reasonably should have been aware of, an “excessive risk,” Darnell, 846 F.3d at 35, that Cheek's suicide was imminent. As such, Plaintiff's allegations, even assuming they are true, regarding the extent of Cheek's purported risk of committing suicide are, at best, speculative. “‘Custodians have been found to ‘know' of a particular vulnerability to suicide when they have had actual knowledge of an obviously serious suicide threat, a history of suicide attempts, or a psychiatric diagnosis identifying suicidal propensities.'” Case, 2017 WL 3701863 at *11 (quoting Colburn v. Upper Darby Twp, 946 F.2d 1017, 1025 n.1 (3d Cir. 1991) (citing cases) (italics in original). Here, in the absence of factually based allegations that Dr. Cervantes had actual knowledge that Cheek posed an obviously serious risk of suicide, had a recent history of suicide or had been medically diagnosed as having suicidal propensities, Plaintiff's allegations hardly bespeak that Cheek presented to Dr. Cervantes as an “obviously serious suicide threat.” Id. Further, Plaintiff fails to allege the source of the asserted “high-risk assessment” of Cheek's mental condition as alleged in Amended Complaint ¶ 32, or that Dr. Cervantes was personally involved in such assessment.

Absent such supporting facts, it cannot be determined that it is plausible to conclude Dr. Cervantes was, or reasonably should have been, aware of such alleged risks of suicide by Cheek. See James, 2022 WL 17155831, at *13 (the court rejected on defendants' Rule 12(c) motion plaintiff's contention that defendants acted with deliberate indifference to plaintiff's alleged risk of suicide where plaintiff did not allege decedent “talked of committing suicide,” nor exhibited a dramatic change in her behavior prior to committing suicide).

Additionally, while specific threats by a detainee of an intention to commit suicide in response to which a custodian fails to take precautionary action, may constitute a plausible allegation of deliberate indifference, see Lara-Grimaldi, 2018 WL 1626348, at **2, 8 (plaintiff alleged deceased inmate had informed defendants she had previously attempted suicide, suffered from mental health issues, had previously injected heroin, and had cried out to her jailers for help without their providing assistance in response to her request, prior to committing suicide while incarcerated, sufficiently alleged deliberate indifference), in the instant case the Amended Complaint alleges no similar facts, particularly with regard to whether Dr. Cervantes was aware that Cheek allegedly had a history of suicide attempts or verbally stated to his jailers that he intended to commit suicide. See James, 2022 WL 17155831, at 13 (granting dismissal of plaintiff's deliberate indifference claim where plaintiff made no allegation that decedent talked of committing suicide); cf. Case, 2017 WL 3701863, at **12-13 (plaintiff plausibly alleged defendants acted with deliberate indifference where plaintiff's allegations supported an inference that detainee's bipolar condition required mental health care, that detainee exhibited strange behavior was known to defendants, and that defendants failed to provide such care). Here, in contrast, Plaintiff conclusorily alleges Cheek “exhibited several serious medical and mental health conditions that demonstrated an increased risk of suicide,” Amended Complaint (Dkt. 10-4) ¶ 47, without providing any facts, as required by Iqbal, as to the nature of such medical conditions that would reasonably cause a physician, like Dr. Cervantes, to be concerned for Cheek's safety. Although Plaintiff alleges in the Amended Complaint (Dkt. 10-4) ¶ 45 that Cheek had a history of suicide attempts and that Defendants were aware of this “history,” the allegation is based on “information and belief” and, as such, is insufficient to defeat Dr. Cervantes's motion. See Curtis, 645 Fed.Appx. at 20-21; James, 2022 WL 17155831, at *8; Prince, 427 F.Supp.2d at 384. “Even where facts are peculiarly within the possession and control of the defendant, the plaintiff must allege some factual basis for the allegations made upon information and belief.” James, 2022 WL 17155831, at *8. Nor does the allegation provide any indication regarding the source of the alleged “history,” such as Cheek's medical records or any facts concerning the recency or frequency of Cheek's alleged suicide attempts. See, e.g., Lara-Grimaldi 529 F.Supp.3d at 107 (citing Shimmel v. Moody, 2020 WL 555281, at *5 (E.D.Mich. Feb. 4, 2020) (citing Mantell v. Health Professionals Ltd., 612 Fed.Appx. 302, 307 (6^th Cir. 2015) (officials not deliberately indifferent based on knowledge of decedent inmate's prior history of depression and “single suicide attempt some five years in the past”))). In the instant case, Plaintiff's allegations therefore fail to plausibly allege Dr. Cervantes was made aware prior to Cheek's suicide that Cheek presented an “obviously serious suicide threat,” Case, 2017 WL 3701863, at *11 (quoting Colburn, 946 F.2d at 1025 n. 1), had in fact a history of recent suicide attempts, or had been psychiatrically diagnosed with suicidal propensities sufficient to plausibly demonstrate Dr. Cervantes was deliberately indifferent to Cheek's risk of suicide.

In short, Plaintiff's allegations against Dr. Cervantes are lacking in sufficient factual content and are conclusory, inconsistent, and self-contradictory to support a plausible claim that Dr. Cervantes acted with deliberate indifference in regard to Cheek's suicide risk. See Iqbal, 556 U.S. at 678, 680 (finding plaintiff's allegations of harsh conditions of confinement were the result of plaintiff's religion, race, and/or national origin, were conclusory, and not entitled to be assumed as true). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). Facts are not conclusions, rather, they are based on actual occurrences. See, Discussion, supra, at 40 (citing Fact, Black's Law Dictionary, 10^th ed.). Therefore, if at all, Plaintiff has alleged Dr. Cervantes engaged in negligent treatment of Cheek, as alleged in Plaintiff's Fourth Cause of Action, or malpractice, as alleged in Plaintiff's Sixth Cause of Action, which are not equivalent to deliberate indifference required for a § 1983 claim, see Charles, 925 F.3d at 87; Bowman, 850 F.Supp. at 147 (citing Bryant, 923 F.2d at 983). Additionally, other than Plaintiff's allegations regarding Dr. Cervantes's improper prescription of Prazosin, see Amended Complaint (Dkt. 10-4) ¶¶ 39-41, Plaintiff failed to allege Dr. Cervantes's personal involvement in Plaintiff's other alleged constitutional violations, i.e., based on Defendants' alleged deliberate indifference. See Amended Complaint (Dkt. 10-4) ¶¶ 42-49 (alleging “Defendants,” without differentiation among the County, Sheriff Filicetti, Dr. Cervantes, and the Doe Defendants, failed to properly respond to Cheek's need for medical treatment resulting in Cheek's suicide). Such failure to allege “specific” involvement by the grouping of defendants is “insufficient” under Iqbal-Twombly to state a claim based on defendants' personal involvement. See S.B. v. The City of New York, 2016 WL 4530455, at *13 (E.D.N.Y. Aug. 29, 2016) (plaintiff's “allegations are functionally identical - and equally bare and conclusory . . . ”) (citing Barber v. Ruzzo, 2011 WL 4965343, at * 2 (N.D.N.Y. Oct. 19, 2011) (“Simply stating that [defendants] were ‘personally and actively involved in the [alleged constitutional violation] against a plaintiff' is grossly insufficient to establish [defendants'] personal involvement in the [conditional violation] ....” (bracketing in original quotation omitted)). As such, Dr. Cervantes's motion to dismiss Plaintiff's First Cause of Action should be GRANTED.

As regards Dr. Cervantes's assertion that qualified immunity is applicable to Plaintiff's First Cause of Action, see Dr. Cervantes's Memorandum of Law (Dkt. 11-5) at 16, because the undersigned is recommending that Plaintiff's claim against Dr. Cervantes be dismissed for failure to state a claim, Dr. Cervantes's assertion of qualified immunity need not be determined at this time. See Bones, 2023 WL 8809732, at *7 (where court “court has determined that Plaintiff does not plausibly allege a constitutional violation,” it is not necessary to determine defendant's qualified immunity defense). Should the District Judge disagree with such recommendation, Dr. Cervantes may present qualified immunity on summary judgment. See Cadwallader, 155 F.Supp.3d at 191 (recognizing defendant may raise qualified immunity at a later stage in the case following court's denial of defendants' Rule 12(b)(6) motions).

Plaintiff's Second Cause of Action/Plaintiff's Monell claim.

Plaintiff's Second Cause of Action, pursuant to § 1983, is asserted against only Niagara County and Sheriff Filicetti. See Amended Complaint (Dkt. 10-4) at 13. Specifically, in this cause of action Plaintiff alleges these Defendants were responsible for establishing municipal policies for providing medical care and treatment to detainees held at the Jail and that these Defendants were also responsible for the practice of allowing the deprivation of such detainees' rights to adequate medical care by Defendants' subordinates and employees constituting a custom or usage of which the County and Sheriff were aware. See Amended Complaint (Dkt. 10-4) ¶¶ 74, 75. Plaintiff further alleges that as a result of the Niagara County and Filicetti's policies, acting through their subordinates and employees, these Defendants failed to adequately screen inmates, like Cheek, for serious risks of suicide, to properly monitor Cheek to prevent his suicide, ignored various warnings that Cheek required immediate medical attention, and failed to “attend to” Cheek's suicide attempt. Amended Complaint (Dkt. 10-4) ¶ 76-80.

A. Niagara County.

In support of dismissal of this claim, Niagara County contends that Plaintiff has failed to plausibly plead either the existence of a formal policy calculated to deprive Jail inmates, including Cheek, of necessary medical care and treatment created by Niagara County, or to allege sufficient facts to show that a practice of such constitutional deprivation was so widespread and persistent at the Niagara County Jail that supervisory authorities for the County or Sheriff Filicetti must have been aware of such practices, or that as municipal actors, a policy or usage can be inferred from the County

Defendants' deliberate indifference to such abuses by supervisory officials of the Defendant municipality, Niagara County. County Defendants' Memorandum of Law (Dkt. 10-5) at 11 (citing Iacovangelo, 624 Fed.Appx. at 13). In particular, Niagara County argues that Plaintiff's allegations in support of Plaintiff's Second Cause of Action are conclusory and fail to identify the specific policy, custom or practice asserted by Plaintiff created by Niagara County to have resulted in Cheek's constitutional deprivation. Id. at 11, 12 (referencing Amended Complaint (Dkt. 10-4) ¶¶ 74, 75, 77, 78 and 80) (citing caselaw)). Niagara County further contends Plaintiff's supporting allegations, given their conclusory nature and vagueness, fail to plausibly state a custom or practice of promoting constitutional deprivations of which the County was aware. Id. at 13. Specifically, Niagara County argues that a single incident such as Cheek's suicide is insufficient to establish the existence of a municipal policy or custom actionable for Monell purposes. Id. (citing DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) (“a single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice to show a municipal policy”) (quoting Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119, 123 (2d Cir. 1991)). Further, Niagara County contends Plaintiff's allegation, see Amended Complaint (Dkt. 10-4) ¶ 33, that the Niagara County Jail experienced one lawsuit and four other alleged inmate suicides over a 13-year period, without describing the facts of such cases demonstrating that they were substantially similar to the alleged facts involved in Cheek's case, including that the suicides were the result of constitutional deprivations similar to those Plaintiff has alleged with respect to Cheek's suicide, is insufficient to plausibly plead a custom, practice or policy actionable under § 1983. Id. (citing Giaccio, 308 Fed.Appx. at 472 (four similar incidents do not establish a persistent and widespread practice to support municipal liability under Monell)). Third, Niagara County contends that Plaintiff also fails to provide support for Plaintiff's Second Cause of Action against it based on Plaintiff's allegation that Niagara County supervisory officials acted with deliberate indifference to Cheek's risk of suicide as alleged by Plaintiff, County Defendants' Memorandum of Law (Dkt. 10-5) at 14. Deliberate indifference requires a plaintiff show a municipal officer made a “conscious choice” to “disregard[ ] a known or obvious consequence of his action,” id. (quoting Jones, 691 F.3d at 81 (quoting Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397, 410 (1997))), and Plaintiff has failed to allege that any supervisory officials of Niagara County had knowledge of prior unconstitutional actions or omissions by Niagara County employees in regard to the provision of medical care to Jail inmates which supervisory officials deliberately chose to ignore. Id. at 14.

In opposition, Plaintiff asserts Monell liability against Niagara County may be established by a single constitutional violation when a municipal policy or custom unconstitutional on its face caused the violation. Plaintiff's Memorandum of Law (Dkt. 16-2) at 15 (citing City of Oklahoma v. Tuttle, 471 U.S. 808, 823-24 (1985) (a single incident of an unconstitutional violation insufficient to establish Monell liability in the absence of proof that it was caused by a municipal policy created by a municipal policymaker), and Leatherman v. Tarrant Cnty. Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993) (holding § 1983 actions against municipalities not subject to heightened pleading requirement)). Plaintiff also argues in opposition to dismissal that Niagara County, and Sheriff Filicetti as a policymaker for the County, adopted or allowed to remain in place a custom, policy or practice “relative to inadequate mental health care/treatment” of Jail inmates in need of such attention. Id. at 15 (citing caselaw). Finally, Plaintiff reasserts the five inmate suicides at the Jail alleged in paragraph 33 of the Amended Complaint, as supporting Plaintiff's allegations that Niagara County acted with deliberate indifference to Cheek's risk of suicide. Id. at 1516. In reply, Niagara County argues that Plaintiff has failed to plausibly allege that Cheek was a victim of unconstitutional actions by County employees pursuant to a policy or custom established by the County and therefor has failed to plausibly allege an underlying constitutional violation, as a prerequisite to any Monell liability, based on deliberate indifference on the part of Niagara County. County Defendants' Reply (Dkt. 17-1) at 8 (citing cases). Niagara County further maintains that Plaintiff has not sufficiently alleged Niagara County has maintained a policy or custom to deny Jail inmates adequate medical care. Id. at 9 (citing caselaw). As Niagara County argues, Plaintiff's Second Cause of Action suffers from several deficiencies.

First, as discussed in connection with Plaintiff's First Cause of Action, see Discussion, supra, at 20-26, Plaintiff has failed to plausibly plead that Niagara County had established a policy, custom, or practice in relation to the provision of medical assistance to Jail inmates, and the monitoring of such inmates, with serious mental health issues, a required element of a Monell claim against a municipal defendant like Niagara County. In this connection, the court finds that Sheriff Filicetti is not a final policy-maker for Niagara County nor does the County have any responsibility for the medical care of Jail inmates, particularly, when, as here, such care has been assigned to a private contractor, PrimeCare and Dr. Cervantes as a PrimeCare employee. See Discussion, supra, at 26-30, 39-40. Second, the Amended Complaint fails to plausibly allege that Cheek's suicide resulted from any deliberate indifference by an employee of Niagara County, thus failing to adequately plead the existence of an underlying constitutional violation based on Cheek's suicide, a prerequisite to any Monell liability. See Discussion, supra, at 22-25. In particular, as relevant to Niagara County's alleged § 1983 liability, Plaintiff does not allege any Niagara County policy-making officials regarding the operation of the Jail were aware of or had knowledge of prior constitutional violations in regard to Jail inmates being deprived of proper medical care or monitoring at the hands of Niagara County employees and deliberately chose to ignore such violations. See Jones, 691 F.3d at 81 (“a plaintiff can prevail against a municipality by showing that the policymaking official was aware of the employee's unconstitutional actions and consciously chose to ignore them”); Iacovangelo, 624 Fed.Appx. at 14 (dismissal warranted by plaintiff's failure to plead a “sufficiently widespread practice among [defendant's employees] to support reasonably the conclusion that [a constitutional deprivation] was the custom . . and that supervisory personnel must have aware of it”); Sanchez v. New York Correct Care Solutions Medical Services, P.C., 2018 WL 6510759, at *11 (W.D.N.Y. Dec. 11, 2018) (alleged instances of prior failures to properly respond to medical problems of inmates by private medical service contractor insufficient to support Monell claim against county defendant). Nor do Plaintiff's references to other earlier Jail suicides allege such instances occurred as a result of constitutional violations similar to those alleged by Plaintiff with respect to Cheek committed by Niagara County employees. See Giacco, 308 Fed.Appx. at 472 (four prior incidents alleging defendant's wrongful conduct fail to provide basis to impose § 1983 liability based on a municipal policy or practice on defendants). Therefore, County Defendants' motion to dismiss Plaintiff's Second Cause of Action against Niagara County should be GRANTED.

B. Sheriff Filicetti.

In support of Plaintiff's claim as pleaded in Plaintiff's Second Cause of Action, Plaintiff's allegations fairly read indicate Plaintiff seeks to impose liability upon Sheriff Filicetti based on his status as a municipal policymaker on behalf of Niagara County. See Amended Complaint (Dkt. 10-4) ¶ 73 (“The County and Filicetti maintained a policy, custom, or practice of deliberate indifference to the hiring, supervision, or discipline of its [sic] employees ....”); ¶ 74 (“Officials within the County or the office of Filicetti were responsible for establishing the municipal policies relative to procuring medical care and treatment of pretrial detainees in the [the Jail] ....”); ¶ 75 (“As a result of the policies,

customs, or practices of the County and Filicetti, Defendants caused the deprivation of . . . [Cheek's] access to adequate medical care and treatment ....”). In support of County Defendants' motion, County Defendants contend that Plaintiff's Second Cause of Action attempts to improperly plead a claim under Monell against Sheriff Filicetti as an individual municipal actor thereby requiring Sheriff Filicetti's personal involvement in causing the alleged violation of Cheek's Fourteenth Amendment right to treatment in order to prevent suicide by a Jail inmate. County Defendants' Memorandum of Law (Dkt. 10-5) at 36-37 (“it is when execution of a government's policy or custom . . . inflicts the [constitutional] injury that the government as an entity is responsible under § 1983”) (quoting Monell, 436 U.S. at 693). County Defendants further contend that the Second Cause of Action fails to allege Sheriff Filicetti was personally involved in the alleged violation of Cheek's right to receive medical assistance, a necessary prerequisite to § 1983 liability. Id. ¹⁶ County Defendants therefore contend that any alleged status Sheriff Filicetti may have as an alleged policymaker would be relevant, if at all, to Plaintiff's claim against Niagara County pursuant to Monell. Id.

16 Plaintiff's failure to plausibly allege Sheriff Filicetti's personal involvement in Cheek's deprivations of inmates' health care is more fully discussed above. See Discussion, supra, at 34-43.

Plaintiff's opposition, Plaintiff's Memorandum of Law (Dkt. 16-2) at 15, does not directly address County Defendants' contentions supporting dismissal of the Second Cause of Action against Sheriff Filicetti; rather, Plaintiff asserts that Sheriff Filicetti allegedly acquiesced in a “custom, policy, or practice” of providing inadequate mental health care to Jail detainees. Id. (citing Green v. City of Mount Vernon, 96 F.Supp.3d 263, 306 (S.D.N.Y. 2015) (“Green”); Benacquista v. Spratt, 217 F.Supp.3d 588, 601 (N.D.N.Y. 2016) (“Benacquista”). However, in both cases the courts upheld not a Monell claim against local government officials, but a Monell claim against the officials' respective municipal or governmental defendants based on the defendants' policymaking officials' deliberate indifference to apparent constitutional violations by the defendants' employees. Green, 96 F.Supp.3d at 306; Benacquista, 217 F.Supp.3d at 601. As the court in Green stated, “where a policymaking official exhibits deliberate indifference to constitutional deprivations caused by subordinates, such that the official's inaction constitutes a ‘deliberate choice,' that acquiescence may ‘be properly thought of as a city policy or custom that is actionable under § 1983,'” Green, 96 F.Supp.3d at 306, thus confirming the alleged § 1983 liability in Green and Benacquista is predicated on Monell. Likewise, in Benacquista, the court concluded that plaintiff had “sufficiently pleaded a failure-to-act-or-supervise Monell claim [against the defendant school board] to survive dismissal ....” Benacquista, 217 F.Supp.3d at 601. Additionally, Plaintiff's

Second Cause of Action is devoid of any allegations that could conceivably support a plausible inference that Sheriff Filicetti was personally involved in Cheek's mental health care or suicide. See Discussion, supra, at 34-41. Accordingly, the court finds that Plaintiff's Second Cause of Action against Sheriff Filicetti is based on Monell and thus cannot be the basis for personal liability against Sheriff Filicetti under § 1983. See Green v. City of Mount Vernon, 2024 WL 710191, at *1 n. 1 (S.D.N.Y. Feb. 21, 2024) (noting the plaintiff “correctly concedes that [the defendant Spratt] individually cannot be sued under Monell.”) Alternatively, should the District Judge disagree with this analysis, the County Defendants' motion should be GRANTED on the ground that Plaintiff has failed to plausibly plead Sheriff Filicetti was personally involved in the alleged constitutional violation. As such, County Defendants' motion to dismiss Plaintiff's Second Cause of Action against Sheriff Filicetti should be GRANTED.

Plaintiff's Third Cause of Action/Plaintiff's Negligent Hiring, Failure to Train and Negligent Supervision Claim.¹⁷

17 Although denominated as a claim for negligent hiring, training and supervision, Plaintiff is alleging Defendants County and Sheriff Filicetti acted with deliberate indifference. Amended Complaint (Dkt. 104) at 16, Plaintiff's Third Cause of Action. The court notes that insofar as Plaintiff is alleging negligent hiring, training and supervision, negligence is not actionable under § 1983. See D.J. by Comfort v. Corning-Painted Post Area School District, F.Supp.3d, 2024 WL 989703, at *11 (W.D.N.Y. Mar. 7, 2024) (citing cases).

Plaintiff's Third Cause of Action, brought pursuant to § 1983, is asserted, like Plaintiff's Second Cause of Action, only against Niagara County and Sheriff Filicetti. See Amended Complaint (Dkt. 16-4) at 15. Specifically, this cause of action alleges Defendants Niagara County and Sheriff Filicetti were responsible for establishing policies and practices relative to providing medical care and treatment of pretrial detainees, Amended Complaint (Dkt. 10-4) ¶ 83, held at the Jail, and that Niagara County and Sheriff Filicetti negligently hired employees and “failed to provide adequate training or supervision to subordinates . . . amount[ing] to deliberate indifference to the [constitutional] rights of “[pretrial detainees at the Jail].” Id. Plaintiff further alleges that the County and Sheriff failed to hire, supervise and train their respective personnel “to adequately screen inmates” at the Jail, Amended Complaint (Dkt. 10-4) ¶ 85, and that such failures caused inadequate provision of medical services to Cheek resulting in Cheek's suicide. Amended Complaint (Dkt. 10-6) at ¶¶ 86, 88.

A. Niagara County.

In support of County Defendants' motion to dismiss this cause of action, Niagara County contends that Plaintiff's allegations fail to satisfy the requirements for a § 1983 failure to properly hire, train, and supervise claim. County Defendants' Memorandum of Law (Dkt. 10-5) at 9-17.

Negligent Hiring.

Specifically, Niagara County argues with respect to Niagara County's alleged failure to properly hire its employees responsible for providing medical services to Jail inmates that Plaintiff's claim fails to plausibly allege such failure was the result of deliberate indifference on the part of a policy-maker acting on behalf of Niagara County. County Defendants' Memorandum of Law (Dkt. 10-5) at 21-23 (quoting Brown, 520 U.S. at 411 (“Only where adequate scrutiny of an applicant's background would lead a reasonable policymaker to conclude that the plainly obvious consequence of the decision to hire the applicant would be the deprivation of a third party's federally protected right can the official's failure to adequately scrutinize the applicant's background constitute ‘deliberate indifference.'”) and Henry-Lee v. City of New York, 746 F.Supp.2d 546, 566 (S.D.N.Y. 2010) (“To prevail on a claim for negligent hiring . . . a plaintiff must prove that a municipality's failure to properly . . . hire . . . its [employees] in a relevant respect evidences a deliberate indifference to the [constitutional] rights of its inhabitants.” (citing cases)). Niagara County further argues that Plaintiff's allegations that the County failed to properly hire are devoid of any “facts ‘tending to support'” an inference that the County maintained a policy or custom of inadequate screening of prospective employees which resulted in Cheek's alleged constitutional deprivations. Id. at 22 (quoting Bowers v. City of Salamanca, 2021 WL 2917672, at *3 (W.D.N.Y. July 12, 2021)).

In opposition, Plaintiff fails to address Niagara County's contentions in support of dismissing Plaintiff's negligent hiring claim as asserted in Plaintiff's Third Cause of Action. See Amended Complaint (Dkt. 10-4) ¶¶ 84, 85, 86, 88, 89 (County Defendants failed to hire employees to adequately screen inmates at the Jail). See Plaintiff's Memorandum of Law (Dkt. 16-2) at 16-18. Rather, Plaintiff's opposition to Niagara County's contentions limits itself to a defense of Plaintiff's other claims of County Defendants' “negligent” training, supervision, and instruction. See id. at 17 (“The Amended Complaint alleges, and should be read as such, that each of the County Defendants specifically failed to undertake proper safeguards for care and protection of Plaintiff [sic], as well as failing to train, instruct, and supervise its own personnel as it relates to inmate care.”). Plaintiff further asserts Plaintiff has sufficiently pleaded both Defendants Niagara County and Sheriff Filicetti's “manner or practice of training and supervising their own employees was deficient or inadequate.” Plaintiff's Memorandum of Law (Dkt. 16-2) at 18 (citing Case, 2017 WL 3701863, at *26). Thus, Plaintiff may be found to have abandoned Plaintiff's Third Cause of Action insofar as it asserts a claim based on Niagara County's alleged failure to adequately review applicants for service, i.e., hire, in the County Jail relative to the care and custody of inmates. See Wilkov v. American Financial Svcs., Inc., 753 Fed.Appx. 44, 46 n. 1 (2d Cir. 2018) (affirming district court's dismissal of certain claims on the ground the plaintiff abandoned the claims when plaintiff failed to argue in opposition to the defendant's motion to dismiss them). Plaintiff's failure to oppose Niagara County's contentions in support of dismissal of this claim therefore warrants dismissal based on Plaintiff's abandonment of Plaintiff's “negligent hire” claim, see Plaintiff's Memorandum of Law (Dkt. 16-2) at 17, pursuant to § 1983. Even assuming Plaintiff has not abandoned this particular claim, a review of the Amended Complaint reveals Plaintiff has failed to sufficiently allege such claim.

First, as discussed with respect to Plaintiff's First Cause of Action, under New York law, the County has no responsibility in regard to the provision of medical services to inmates of the Jail, a responsibility which state law imposed solely on the County Sheriff, in this case, Defendant Filicetti. See Discussion, supra, at 29-30. Thus, whether the County failed to adequately screen applicants for employment at the Jail is irrelevant as the staffing at the Jail was not a responsibility of the County. Second, even presuming such responsibility by the County and that the County in fact employed any of the staff for the Jail, a fair reading of Plaintiff's claim indicates Plaintiff's allegations are unspecific and fail to assert facts, as required by Iqbal, viz., “occurrences,” upon which it can be plausibly inferred to establish the elements of the so-called “negligent” hire claim. In particular, Plaintiff alleges that Niagara County's “deficiencies in hiring . . . [its] employees [for the Jail] was [sic] highly likely to inflict the particular injury suffered by the Plaintiffs [sic].” Amended Complaint (Dkt. 10-4) ¶ 84. Again, in paragraph 85, the Amended Complaint generally alleges Niagara County “failed to hire . . . Officers and Personnel to adequately screen inmates at the Niagara County Jail.” Further, Plaintiff alleges that “[i]dentifying and adequately addressing the medical needs of inmates requires specialized training, and upon information and belief, Defendants County and Filicetti failed to hire the appropriate personnel for this role.” Amended Complaint (Dkt. 10-4) ¶ 89. In none of these allegations does Plaintiff provide facts or other information supporting an inference that Niagara County had a policy of inadequate hiring practices relative to any conceivable “role” it may have had with respect to the provision of mental health or other medical services to Jail inmates, protected by the Fourteenth Amendment, amounting to deliberate indifference to the medical needs of such inmates. Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995) (conclusory allegations “‘that a municipality has [an unconstitutional] custom or policy [are] insufficient in the absence of allegations of fact rendering support, at least circumstantially, to such an inference'”) (quoting Dwares, 985 F.2d at 100). See also Cato v. Zweller, 2023 WL 8653857, at *8 (W.D.N.Y. Dec. 14, 2023) (deliberate indifference claim alleging serious risk to plaintiff's health and safety based on defendants' conditions of confinement required “factual content” to avoid dismissal); Wyatt v. Kozlowski, 2021 WL 130978, at *8 (W.D.N.Y. Jan. 14, 2021) (“To state a Fourteenth Amendment claim for medical deliberate indifference, a pretrial detainee ‘must plead facts showing that she had a serious medical condition and that it was met with deliberate indifference.'”) (quoting Bruno v. City of Schenectady, 727 Fed.Appx. 717, 720 (2d Cir. 2018)); Smith v. Town of Lewiston, 2020 WL 5237924, at *12 (W.D.N.Y. July 30, 2020) (“[M]ere generalized assertions as to the existence of a nonspecific custom or policy [ ] will not satisfy Monell's requirements”). Nor do the allegations satisfy the requirements for such a theory of § 1983 liability as established by the Supreme Court in Brown, 520 U.S. at 411 (see Discussion, supra, at 57). In particular, Plaintiff's allegations fail to identify any County employee who may have held some responsibility with respect to providing medical care to inmates and who had a background of misconduct that would have created an obvious risk of unconstitutional conduct that could foreseeably result in similar constitutional deprivations involving Jail inmates and thereby constituting deliberate indifference. See Brown, 520 U.S. at 411. Nor has Plaintiff sufficiently alleged a causal link between Niagara County's alleged negligent hiring of its putative Jail staff and Cheek's suicide. See Clarke v. Antonini, 2024 WL 1347578, at *6 (S.D.N.Y. Mar. 29, 2024) (Monell requires plaintiff demonstrate “a causal link” between a municipal policy and the alleged constitutional injury, viz., “an affirmative link between, for example, the [hiring] inadequacies and the particular violation at issue.”) (brackets in Clarke omitted) (quoting Tuttle, 471 U.S. at 824 n. 8). Thus, even if this claim was not abandoned by Plaintiff, it is insufficiently pleaded and should be DISMISSED as such. Accordingly, County Defendants' motion directed to Plaintiff's Third Cause of Action against Niagara County as to this claim should be GRANTED.

Failure to Train.

As noted, in Plaintiff's Third Cause of Action, Plaintiff asserts § 1983 liability against County Defendants alleging Defendants' failure to adequately train subordinates led to Cheek's suicide. See Amended Complaint (Dkt. 10-4) ¶ 84 (“County and Filicetti's deficiencies in hiring, training, and adequately supervising their employees was [sic] highly likely to inflict the particular injury suffered by the Plaintiffs [sic].”) (referring to Cheek's death by suicide). In support of County Defendants' motion to dismiss this claim, Niagara County contends that Plaintiff has failed to plausibly allege the elements of a § 1983 claim based on a municipal defendant's failure with deliberate indifference to train its employees who are accused of a violation of a plaintiff's constitutional rights as a result of such failure to train. See County Defendants' Memorandum of Law (Dkt. 10-5) at 15-19. Plaintiff responds by arguing that the Amended Complaint sufficiently alleges that Niagara County failed to properly train its employees as “it relates to inmate care.” Plaintiff's Memorandum of Law (Dkt. 16-2) at 17. Plaintiff further asserts Niagara County was aware of “ongoing issues involving the growing number of inmate suicide [sic] and/or attempts [at the Jail] and undoubtedly failed to properly address the same ....” Id. at 18 (asserting County Defendants' awareness of one lawsuit and four other Jail suicide cases over an approximate 13-year period). Plaintiff's allegations pertaining to Niagara County's alleged failure to properly train its Jail employees include allegations that such employees failed to comply with New York State regulations relating to mental health treatment of Jail inmates, see Amended Complaint (Dkt. 10-4) ¶ 56, requiring county jails provide proper monitoring and mental health treatment of inmates who present risks of suicide, see Amended Complaint (Dkt. 10-4) ¶ 57 and ¶ 76. In reply, Niagara County contends that Plaintiff's failure to train allegations are insufficient (Dkt. 17-1) at 11 (citing Bowers, 2021 WL 2917672, at *3). Niagara County further argues in response to Plaintiff's assertion that County Defendants were aware of other jail suicides (Dkt. 16-2 at 18), that Plaintiff has failed to allege that any of the alleged suicides were similar in nature to Cheek's suicide (Dkt. 17-1) at 11, or were caused by a “purported pattern of similar constitutional violations by untrained [Niagara County] employees, that more or better supervision would have protected against the purported constitutional violations, or that a particular employee's background indicated the employee would deprive a third party of their constitutional rights.” Id. at 11-12 (citing, inter alia, Brown, 520 U.S. at 411; Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995 (municipal awareness of repeated constitutional violations by employees without meaningful responsive action can support finding of deliberate indifference); and Bowers, 2021 WL 2917672, at **3-4 (dismissing plaintiff's failure to train claim based on plaintiff's failure to allege “facts demonstrating [defendant's] deliberate indifference”)).

“A municipality or other local government may be liable under this section [1983] if the governmental body itself ‘subjects' a person to a deprivation of rights or ‘causes' a person ‘to be subjected' to such deprivation.” Connick v. Thompson, 563 U.S. 51,61 (2011) (citing Monell, 436 U.S. at 692). “But, under § 1983, local governments are responsible only for ‘their own illegal acts.'” Id. (quoting Pembaur, 475 U.S. at 479 (italics in original) (citing Monell, 436 U.S. at 665-83)). Municipalities “are not vicariously liable under § 1983 for their employees' actions.” Id. (citing Monell, 436 U.S. at 691); see also Brown, 520 U.S. at 403; City of Canton v. Harris, 489 U.S. 378, 392 (1989)).

“A municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.” Connick, 563 U.S. at 61. This is because identifying a “policy of inadequate training is far more nebulous, and a good deal further removed from the constitutional violation” than the type of official policy at issue in Monell. Id. (quotation marks omitted); see also Greene v. City of New York, 742 Fed.Appx. 532, 536 (2d Cir. 2018) (“a § 1983 claim against a municipality is at its weakest” when the plaintiff asserts a failure to train claim). “‘[T]he inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to a deliberate indifference to the rights of persons with whom the police come into contact.'” Jenkins v. City of N.Y., 478 F.3d 76, 94 (2d Cir. 2007) (quoting Harris, 489 U.S. at 388). “Only where a municipality's failure to train its employees in a relevant respect evidences a ‘deliberate indifference' to the rights of its inhabitants can such a shortcoming be properly thought of as a city ‘policy or custom' that is actionable under § 1983.” Id. See also Strobridge v. City of Elmira, 2022 WL 597464, at *7 (W.D.N.Y. Feb. 28, 2022) (citing Ruiz v. Westchester Cnty., 2020 WL 4340788, at *8 (S.D.N.Y. July 28, 2020); and Treadwell v. County of Putnam, 2016 WL 1268279, at *4 (S.D.N.Y. Mar. 30, 2016)).

A Monell claim based on a failure to train has three elements. Jenkins, 478 F.3d at 94 (quoting Walker v. City of New York, 974 F.2d 293, 297 (2d Cir. 1992)). “First, the plaintiff must show that a policymaker knows ‘to a moral certainty' that her employees will confront a given situation.” Id. (internal citation omitted). “Second, the plaintiff must show that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation.” Id. “Finally, the plaintiff must show that the wrong choice by the . . . [municipal] employee will frequently cause the deprivation of a citizen's constitutional rights.” Id. “[T]he focus must be on adequacy of the training program in relation to the tasks the particular officers must perform,” Harris, 489 U.S. at 390, and, if not, on whether such alleged inadequate training can be justifiably said to represent municipal policy. Id. Moreover, the plaintiff must show an identified “specific” deficiency in the alleged training actually caused the employee's deliberate indifference to the specific constitutional violation at issue, here, Cheek's alleged deprivation of medical assistance and resulting suicide. Green v. City of New York, 465 F.3d 65, 81 (2d Cir. 2006) (quoting Amnesty America, 361 F.3d at 129; see also Miller v. County of Monroe, 2013 WL 2180738, at *6 (W.D.N.Y. May 17, 2013) (“[Harris] requires that plaintiffs establish not only that the officials' purported failure to train occurred under circumstances that could constitute deliberate indifference, but also that plaintiffs identify a specific deficiency in the city's training program and establish that that deficiency is ‘closely related to the ultimate injury,' such that it ‘actually caused' the constitutional deprivation.”) (quoting Amnesty America, 361 F.3d at 129) (citing Harris, 489 U.S. at 391). A fair reading of Plaintiff's Third Cause of Action supports that Plaintiff's allegations fail to address these requirements. See Amended Complaint (Dkt. 10-4) ¶¶ 82-90.

A failure to train claim, however, cannot be grounded merely on conclusory assertions of the existence of a municipal policy; rather, the plaintiff must plead “facts tending to show that the failure to train . . . amounted to deliberate indifference to the constitutional rights of people who may find themselves in [the plaintiff's] situation.” Santos, 847 F.Supp.2d at 577 (citing Tuttle, 471 U.S. at 823, and Walker, 974 F.2d at 297). See also Bowers, 2021 WL 2917672, at *4. The “[p]laintiff must plead facts suggesting ‘a likelihood that the failure to train or supervise will result in the officer making the wrong decision.'” Jimenez v. City of New York, 2020 WL 1467371, at * 5 (S.D.N.Y. Mar. 26, 2020) (quoting Walker, 974 F.2d at 299). For example, a failure to train claim may be sufficiently pleaded by alleging facts indicating “[a] pattern of similar constitutional violations by untrained [municipal] employees.” Connick, 563 U.S. at 62. A single incident is insufficient to establish the existence of such a pattern. See DeCarlo, 141 F.3d at 61 (“Single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice to show a municipal policy”).

The court notes that the Second Circuit has stated, as relevant to Plaintiff's failure to train claim, that “[w]hile it may be true that § 1983 plaintiffs cannot be expected to know the details of a municipality's training programs prior to discovery, . . . this does not relieve them of their obligation under Iqbal to plead a facially plausible claim ....” Simms v. City of New York, 480 Fed.Appx. 627, 631 n. 4 (2d Cir. 2012). “For example, plaintiffs can meet their pleading obligations in this respect by alleging facts indicating ‘[a] pattern of similar constitutional violations by untrained [municipal] employees.'” Id. (quoting Connick, 563 U.S. at 62). Here, Plaintiff's allegations in support of Plaintiff's failure to train claim fail to plausibly allege such a failure is attributable to Niagara County for several reasons.

First, in none of the relevant allegations in the Amended Complaint does Plaintiff assert any specific facts that (1) a Niagara County policy-maker knew to a moral certainty that his or her employees will confront a given situation, i.e., one involving a risk of suicide by a Jail inmate, (2) the situation (confronting an inmate suicide risk) either presented the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation, and (3) the wrong choice by the employee will frequently cause the deprivation of a person's constitutional rights. See Jenkins, 478 F.3d at 94; see also Bowers, 2021 WL 2917672, at **3-4 (in a Rule 12(b)(6) motion, plaintiff's failure to train claim required dismissal for lack of factual allegations supporting plaintiff's claim based on municipal deliberate indifference). Second, Plaintiff's assertion of five instances of suicides at the Jail occurring over a period of 13-years, Amended Complaint (Dkt. 10-4) ¶ 33, are devoid of any specifics sufficient to support an inference that such suicides were substantially similar to Cheek's¹⁸ and that they resulted from a violation of the Cheek's Fourteenth Amendment right to adequate medical care or monitoring, as alleged by Plaintiff in this case, warranting a conclusion that such similar instances constitute a pattern of constitutional violations by Niagara County employees thereby supporting an inference of a municipal policy by Niagara County of inadequate training with deliberate indifference. “‘A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train .... Without notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.'” Simms, 480 Fed.Appx. at 630 (quoting Connick, 563 U.S. at 62)). Nor has Plaintiff sufficiently alleged a causal link between Niagara County's alleged negligent failure to train its putative Jail employees and Cheek's suicide. See Clarke, 2024 WL 1347578, at *6 (Monell requires plaintiff demonstrate a “causal link” between a municipal policy and the alleged constitutional injury, viz., “an affirmative link between for example the [training] inadequacies alleged and the particular constitutional violation at issue”) (brackets in Clarke omitted) (quoting Tuttle, 471 U.S. at 824 n. 8). Thus, the court finds Plaintiff has failed to plausibly allege that Niagara County's alleged failures to train its employees with respect to the safety and medical needs of Jail inmates, including Cheek, was the result of deliberate indifference constituting a policy or practice of the County.

18 The court notes a complete dearth of factual allegations regarding the circumstances of Cheek's suicide in the Amended Complaint.

Finally, although an issue not raised by the County Defendants, the court finds that it is implausible that Niagara County had any employees assigned to the Jail during Cheek's custody to provide inmates with safety and medical care services. See N.Y. County Law § 217 (“each county shall maintain a county jail as prescribed by law”); N.Y. Correct. Law § 500-c (sheriff to secure and hold persons committed by lawful authority securely and safely); Ball, 2021 WL 5903308, at *4 (county defendant may be liable for an inmate's physical injury based on physical defects in jail); Wood, 2020 WL 1703537, at *19 (county sheriff “is exclusively responsible for the custody, treatment, care, and control of inmates.”) (citing caselaw); Freeland v. Erie County, 997 N.Y.S.2d 860, 862 (4^th Dept. 2014) (“The County's duty to provide and maintain the jail building is distinguishable from defendant Sheriff's duty to ‘receive and safely keep' prisoners in the jail over which he has custody.”); see also Metcalf, 104 N.Y.S.3d at 816 (“The duty to supervise and train Sheriff's deputies rests with the Sheriff.”) (citing Mosey v. County of Erie, 984 N.Y.S.2d 706, 710 (4^th Dept. 2014) (“The County has no similar duty”) (citing Villar, 5 N.Y.S.3d 747, 748 (4^th Dept. 2015))). Thus, the court finds it implausible, based on Plaintiff's allegations, that any Niagara County employee who was assigned to the Jail would have any duties to provide services to inmates relative to their medical or security requirements. Therefore, Plaintiff has failed to plausibly allege a failure to train claim under § 1983 against Niagara County and, as such, County Defendants' motion directed to Plaintiff's Third Cause of Action against Niagara County should be GRANTED as to this claim.

Failure to Supervise.

As to the Plaintiff's Third Cause of Action asserting Niagara County's liability under § 1983 for failing to properly supervise Jail employees in responding to potential inmate suicides, “[t]o establish municipal liability based on the failure to supervise [municipal employees], . . . plaintiff must show ‘that a policymaking official had notice of a potentially serious problem of unconstitutional conduct'” demonstrating “that the need for corrective action was ‘obvious' and the policymaker's failure to investigate or rectify the situation evidences deliberate indifference, rather than mere negligence or bureaucratic inaction.” McCart v. Village of Mt. Morris, 2011 WL 3421505, at *6 (W.D.N.Y. Aug. 4, 2011) (quoting Amnesty America, 361 F.3d at 128 (quoting Vann, 72 F.3d at 1049)). See Kiss v. Torres, 2024 WL 1210941, at *24 (S.D.N.Y. Mar. 19, 2024) (municipal liability for failure to supervise requires the plaintiff to plead either a pattern of similar unconstitutional conduct or that the municipality consistently failed to investigate such allegations (citing cases)). On a motion to dismiss a failure to supervise claim against a municipality under § 1983, based on the existence of the requisite municipal policy giving rise to the alleged failure to supervise municipal employees, “mere allegations of a municipal custom or practice of tolerating official misconduct [by failing to supervise such employees] are insufficient to demonstrate the existence of such a custom unless supported by factual details.” Tricano v. Town of Harrison, N.Y., 895 F.Supp.2d 526, 535 (S.D.N.Y. 2012); see also Buffalo Through Richardson v. City of Buffalo, 2020 WL 2401277 at *12 (W.D.N.Y. May 12, 2020) (granting defendant summary judgment where plaintiff failed to provide evidence of a city “official's awareness of and failure to rectify unconstitutional conduct”).

Here, Plaintiff's allegations in support of Plaintiff's failure to supervise claim against Niagara County are patently insufficient. For example, Plaintiff alleges on information and belief that Niagara County negligently failed to supervise its Jail employees with respect to compliance with state and local requirements affecting inmate housing and mental health treatment, Amended Complaint (Dkt. 10-4) ¶ 56, “maintained a policy, custom or practice of deliberate indifference to the . . . supervision, or discipline of its employees . . . [who] would come into contact with inmates,” id. ¶ 73, and was deficient in regard to “adequately supervising” county employees so as to avoid the likelihood of causing injury to inmates including Cheek. Id. ¶ 84. See also Amended Complaint (Dkt. 10-4) ¶¶ 85, 86, 88 (alleging Niagara County's failure to properly “hire, supervise, and train” its employees with respect to the mental health needs of certain Jail inmates). Such allegations are facially conclusory and amount to a “‘formulaic recitation of the elements of . . . [the] cause of action.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. at 678 (quoting Twombly, 550 U.S. at 557). See also Knight v. N.Y. Dept. of Corr. and Comm. Svcs., 2022 WL 21808094, at *4 (W.D.N.Y. Oct. 24, 2022) (finding plaintiff's allegation of prison eye doctor's treatment as “inadequate” was conclusory and insufficient to avoid dismissal of plaintiff's § 1983 claim). Rather, a fair review of Plaintiff's allegations support a finding that none of Plaintiff's allegations plausibly support an inference that Niagara County, acting through a policy-maker, deliberately disregarded an obvious need for supervision of its Jail employees, as alleged, in order to prevent continued constitutional violations with respect to the safety or medical needs of Jail inmates. See McCart, 2011 WL 3421505, at *6 (quoting Amnesty America, 361 F.3d at 128). “Mere allegations of . . . inadequate supervision are insufficient to demonstrate the existence of . . . [a municipal] custom unless supported by factual details . . . supporting] an inference . . . that the failure to . . . [supervise] caused [plaintiff's] constitutional injuries,” Tieman v. City of Newburgh, 2015 WL 1379652, at *13 (S.D.N.Y. Mar. 26, 2015); see also Cato, 2023 WL 8653857, at *8; Wyatt, 2021 WL 130978, at *8, or disregarded an obvious need for supervision of Jail employees to prevent continued constitutional violations. Additionally, to the extent Plaintiff's allegations are based on Plaintiff's information and belief, they are inadequate. See Curtis, 645 Fed.Appx. At 20-21; James, 2022 WL 17155831, at *8; Prince, 427 F.Supp.2d at 384. Nor has Plaintiff sufficiently alleged a causal link between Niagara County's alleged negligent supervision of its putative Jail employees and Cheek's suicide. See Clarke, 2024 WL 1347578, at *6 (Monell requires plaintiff demonstrate “a causal link” between a municipal policy and the alleged constitutional injury, viz., “an affirmative link between for example the . . . [supervisory] inadequacies alleged and the particular violation at issue.”) (brackets in Clarke omitted) (quoting Tuttle, 471 U.S. at 824 n.8)). Accordingly, County Defendants' motion to dismiss Plaintiff's Third Cause of Action against Niagara County on this claim should be GRANTED.

B. Sheriff Filicetti.

Negligent Hiring.

As to Plaintiff's Third Cause of Action based on an alleged failure to adequately hire Sheriff's Filicetti's employees, i.e., “Officers and Personnel,” Amended Complaint (Dkt. 10-4) ¶ 85, who had responsibility with respect to the custody and medical care of Jail inmates, Sheriff Filicetti contends that such claim should be dismissed as to him for lack of any plausible allegation that Sheriff Filicetti was personally involved in hiring of such Jail personnel. County Defendants' Memorandum of Law (Dkt. 10-5) at 37-38 (citing caselaw). In Plaintiff's opposition, Plaintiff does not directly respond to Sheriff Filicetti's contention and instead argues that the Amended Complaint sufficiently pleaded that Sheriff Filicetti's “manner or practice of training and supervising . . . [his] own employees was deficient or inadequate.” Plaintiff's Memorandum of Law (Dkt. 162) at 18. In reply, Sheriff Filicetti contends that as a result of the Second Circuit's 2020 decision in Tangreti, 983 F.3d at 618 (§ 1983 plaintiffs must plead and prove specific facts that a supervisory official defendant, like Sheriff Filicetti, violated the constitution through his own acts), the court's pre-Ashcroft v. Iqbal decision in Colon, 58 F.3d at 873 (setting forth five ways in which a supervising defendant may be found to create responsibility under § 1983 for a subordinates actions) should no longer be followed. County Defendants' Reply (Dkt. 17-1) at 16 (citing Tangreti, 983 F.3d at 618). See Discussion, supra, at 35-36.

As relevant, Plaintiff relies on three such methods established in Colon, specifically, that a defendant created a policy or custom under which unconstitutional practices occurred, or defendant allowed the continuance of such a policy or custom, or the defendant was grossly negligent in supervising subordinates who committed the wrongful acts. See Plaintiff's Memorandum of Law (Dkt. 16-2) at 10. However, there is no longer a cause of action under § 1983 for supervising liability based on the three factors enumerated in Colon and on which Plaintiff relies as a substitute for the prerequisite personal involvement for § 1983 liability now confirmed by the Second Circuit in Tangreti as required for such liability under Iqbal. See Trangreti, 983 F.3d at 618.

County Defendants further reiterate Plaintiff has failed to allege facts indicating Sheriff Filicetti was personally involved in the training of Jail staff members who may have had contact with Cheek during his custody. County Defendants' Reply (Dkt. 17-1) at 16. Since Iqbal, “there is no special rule for supervisory liability . . . [such that a § 1983] plaintiff must plead and prove that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Marcus, 2023 WL 5154167, at *5, report and recommendation adopted, 2023 WL 7016546 (W.D.N.Y. Oct. 25, 2023). Here, Plaintiff's allegations simply do not provide any facts upon which, either circumstantially or directly, see Santos, 847 F.Supp.2d at 576 (requiring plaintiff “allege facts tending to support, at least circumstantially, an inference” of policy or custom supporting personal involvement) it can be plausibly inferred that Sheriff Filicetti was personally involved in the hiring of members of the Jail staff who may have had contact with Cheek during his custody sufficient to sustain Plaintiff's Third Cause of Action alleging County Defendants' negligent hiring of Sheriff's Filicetti's subordinates. See Bowers, 2021 WL 2917672, at *3 (quoting Zahra, 48 F.3d at 685). Nor does Plaintiff sufficiently allege a causal link between the alleged negligent hiring of Jail personnel by Sheriff Filicetti and Cheek's suicide. See Clarke, 2024 WL 1347578, at *6. Accordingly, County Defendants' motion to dismiss Plaintiff's Third Cause of Action against Sheriff Filicetti's based on Plaintiff's negligent hiring claim should be GRANTED.

Failure to Train.

In support of County Defendants' motion to dismiss Plaintiff's Third Cause of Action alleging Sheriff Filicetti's failure to properly train Jail personnel, presumably in this case the five John Doe Deputy Sheriffs, with custodial responsibilities for Cheek, with respect to the adequate screening of Jail inmates and in providing necessary medical assistance to inmates presenting with alleged conditions like Cheek's, Amended Complaint ¶¶ 85, 88, and compliance with Title 9 of the N.Y.C.R.R. 7003.3(h) relating to monitoring and supervision of Jail inmates, Amended Complaint (Dkt. 10-4) ¶¶ 52, 53, 57, Sheriff Filicetti contends that Plaintiff has failed to plausibly allege Sheriff Filicetti was personally involved in the training of unnamed “Officers and Personnel,” Amended Complaint (Dkt. 10-4) ¶¶ 85, 86, 88, 90, responsible for supervising Cheek while in Sheriff Filicetti's custody. County Defendants' Memorandum of Law (Dkt. 10-5) at 37-38 (citing Brooks v. Prack, 77 F.Supp.3d 301, 313 (W.D.N.Y. 2014) and Tricoles v. Bumpus, 2006 WL 767897, at *4 (E.D.N.Y. Mar. 23, 2006)). Plaintiff opposes by arguing Plaintiff has sufficiently pleaded Sheriff Filicetti's “manner or practice of training [his] . . . own employees was deficient or inadequate.” Plaintiff's Memorandum of Law (Dkt. 16-2) at 17-18 (citing Case, 2017 WL 3701863, at *26 (finding plaintiff has plausibly alleged defendant sheriff was personally involved in failing to train deputies with regard to proper treatment and screening of pretrial detainees under state negligence law) (citing Ryan v. Moss, 2013 WL 956722, at *19 (W.D.N.Y. Mar. 12, 2013))). Plaintiff further reiterates Plaintiff's assertion that it is “uncontroverted” that County Defendants were aware of prior suicides at the Jail yet failed to properly address them. Plaintiff's Memorandum of Law (Dkt. 16-2) at 18. In reply, Sheriff Filicetti reiterates that the Amended Complaint fails to assert specific i.e., non-conclusory, factual allegations that demonstrate Sheriff Filicetti's personal involvement in the “purported constitutional violations.” County Defendants' Reply (Dkt. 17-1) at 16 (citing caselaw). Further, as a County Defendant, Sheriff Filicetti argues, that with reference to Plaintiff's allegation that Defendants were aware of prior suicides at the Jail, Plaintiff's allegation fails to allege that any of the five suicides occurred under similar circumstances to Cheek's and involved similar alleged constitutional violations by untrained Sheriff's employees. County Defendants' Reply (Dkt. 17-1) at 11-12.

As to Sheriff Filicetti's contention that Plaintiff has failed to allege the requisite degree of Sheriff Filicetti's personal involvement, Plaintiff alleges that the Sheriff is responsible for training of Jail deputies and other personnel. Amended Complaint (Dkt. 10-4) ¶ 9. However, such broad and non-specific allegations are insufficient to plausibly allege Sheriff Filicetti was in fact personally involved in the implementation of such training. See Tangreti, 983 F.2d at 618 (§ 1983 plaintiff must plead and prove “each Government-official defendant, through the official's own individual actions, has violated the Constitution.”); Tricoles, 2006 WL 767897, at *4 (plaintiff's allegation that DOCCS Commissioner failed to train his employees without any “specific allegations of personal involvement [in the implementation of such training], are too vague and conclusory to state a [§ 1983] claim”). Moreover, even if Plaintiff had sufficiently alleged Sheriff Filicetti was personally involved in the training of Jail staff, Plaintiff's allegations fail to satisfy the three criteria necessary to state a failure to adequately train claim under § 1983 as set forth in Jenkins, 478 F.3d at 94 (quoting Walker, 974 F.2d at 297); see Discussion, supra, at 67-74 (explaining why Plaintiff's Third Cause of Action alleging a failure to train claim against Niagara County should be dismissed). See Johnson v. Town of Greece, 2014 WL 185175 at *3 (W.D.N.Y. Jan. 17, 2024) (plaintiff's alleged 15 civilian complaints against defendant town failed to provide specific facts demonstrating sufficient similarities to plaintiff's allegations of excessive force and racial profiling and thus failed to satisfy Jenkins's criteria for a valid failure to train claim). Compare Michel v. Orange Cty., N.Y., 2024 WL 461693, at *2 (2d Cir. Feb. 7, 2024) (finding under Jenkins defendant sheriffs and county jail personnel were liable to plaintiff based on a failure to train theory where plaintiff alleged defendants knew to a moral certainty that second-hand smoke in the jail was “pervasive,” a history of jail employees' inadequate response to such pervasive smoke, and jail employees' general failure to respond to smoking violations at the jail). No similar facts are alleged in the present case by Plaintiff with respect to Sheriff Filicetti's awareness of the likelihood of Jail suicides or inadequate responses to the suicides by Jail personnel. Nor does Plaintiff sufficiently allege a causal link between Sheriff Filicetti's alleged failure to train Jail staff and Cheek's suicide. See Clarke, 2024 WL 1347578, at *6. Therefore, County Defendant's motion to dismiss Plaintiff's Third Cause of Action against Sheriff Filicetti based on Plaintiff's failure to train claim should be GRANTED.

Failure to Supervise.

In support of dismissal of Plaintiff's Third Cause of Action, asserting Sheriff Filicetti violated Cheek's right to have properly supervised Jail personnel provide him with necessary custodial medical care and monitoring, Amended Complaint (Dkt. 10-4) ¶¶ 56, 73, 84, 85, 86, 88, Sheriff Filicetti contends Plaintiff's allegations fail to plausibly show Sheriff Filicetti's personal involvement in the failure to supervise Jail employees. County Defendants' Memorandum of Law (Dkt. 10-6) at 37-38 (citing caselaw). Plaintiff opposes dismissal of this claim asserting Plaintiff's allegations are sufficient. Plaintiff's Memorandum of Law (Dkt. 16-2) at 17-18. In reply, County Defendants argue the Amended Complaint is devoid of specific allegations to demonstrate Sheriff Filicetti was personally involved in the alleged supervisory violations. County Defendants' Reply (Dkt. 17-1) at 16 (citing Littlejohn, 795 F.3d at 314; Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)).

As to the Plaintiff's Third Cause of Action asserting Sheriff Filicetti's liability under § 1983 for failing to properly supervise Jail employees in regards to their alleged failures to properly respond to potential inmate suicides, § 1983 imposes liability only on a supervising official where such officials are alleged to have committed a constitutional violation. See McCluskey v. Roberts, 2022 WL 2046079, at *3 (2d Cir. June 7, 2022) (summary order) (citing Tangreti, 983 F.3d at 616). A plaintiff's pleading therefore “may not depend on a theory of supervisory liability,” because ‘government officials may not be held liable [under § 1983] for the unconstitutional conduct of their subordinates under a theory of respondeat superior.'” Id. (quoting Tangreti, 983 F.3d at 616). Instead, Plaintiff must plausibly allege that Sheriff Filicetti violated Cheek's right to receive medical care and assistance through Filicetti's “own conduct, not through his supervision [or a lack thereof] of others who may have committed the violation.” McCluskey, 2022 WL 2046079, at *3. Thus, a governmental supervisor's § 1983 liability may not be asserted based on the supervisor's alleged gross negligence in supervising subordinates. See Murrell v. Sheron, 2023 WL 1970487, at *7 (W.D.N.Y. Feb. 13, 2023) (citing Tangreti, 983 F.3d at 618).

As noted, see Discussion, supra, at 82, Plaintiff's opposition consists of stating Plaintiff has sufficiently alleged a supervisory violation by Sheriff Filicetti. Plaintiff's Memorandum of Law (Dkt. 16-2) at 17-18 (citing Case, 2017 WL 3701863, at *26) (“Case”). Here, Plaintiff's allegations are all facially deficient in that they are conclusory and amount to a “formulaic recitation of the elements of . . . [the] cause of action.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). See, e.g., Amended Complaint (Dkt. 10-4) ¶ 84 (“Filicetti's deficiencies in hiring, training, and adequately supervising . . . [his] employees was highly likely to inflict the particular injury suffered by Plaintiffs”). “Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (quoting Twombly, 550 U.S. at 557). Plaintiff's allegations in support of Sheriff Filicetti's alleged negligent supervision fail to satisfy these criteria as they are conclusory. See also Knight, 2022 WL 21808094, at *4 (finding plaintiff's allegation of prison eye doctor's treatment as “inadequate” was conclusory and insufficient to avoid dismissal of plaintiff's § 1983 claim). Nor does Plaintiff's reliance (see Dkt. 16-2 at 18) on Case require a different result. In Case, the court found plaintiff's conclusory allegations concerning defendant municipalities' liability based on the “failings” of John Doe police officers in handling plaintiff's decedent's arrest and transfer, failed to state a claim under New York law for negligent training or supervision. See Case, 2017 WL 3701863, at *26. Moreover, Plaintiff's allegations are devoid of any facts plausibly suggesting Filicetti was directly responsible for Cheek's care and custody or that his alleged neglect affirmatively caused Cheek's death by suicide. See Poe v. Leonard, 282 F.3d 123, 140 (2d Cir. 2022 (supervisory liability requires an “affirmative causal link between supervisor's inaction and [the plaintiff's] injury”). Therefore, based on the foregoing analysis, County Defendants' motion to dismiss Plaintiff's Third Cause of Action against Sheriff Filicetti on this claim should be GRANTED.

Supplemental Jurisdiction.

Pursuant to 28 U.S.C. § 1367(a) (“§ 1367”), “in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution....” Relevantly, § 1367 provides “[t]he district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction ....” 28 U.S.C. § 1367(c)(3). Although district courts have discretion whether to decline to exercise supplemental jurisdiction over claims remaining after the dismissal of all claims over which there is original jurisdiction, the Second Circuit instructs “that ‘in the usual case in which all federal-law claims are eliminated before trial, the balance of factors will point toward declining to exercise jurisdiction over the remaining state-law claims.'” Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (ellipsis omitted) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). The relevant factors to be considered include “the traditional ‘values of judicial economy, convenience, fairness, and comity.'” Id. (quoting Cohill, 484 U.S. at 350). Further, “[i]n the absence of a clearly articulated federal interest and without any other consideration of the Cohill factors,” a district court exceeds its discretion by exercising supplemental jurisdiction. Id., 455 F.3d at 123.

The instant case does not present the “usual case” where all federal claims are “eliminated on a motion to dismiss, prior to the investment of significant judicial resources.” Kolari, 455 F.3d at 123-24. Rather, regardless of whether the District Judge agrees with the undersigned's recommendation that Plaintiff's federal (see Discussion, supra, at 18-84) and state law claims (see Discussion, infra, at 86-144) asserted against the County Defendants and Dr. Cervantes should be dismissed, the action will proceed against the remaining PrimeCare Defendants which have not moved to dismiss, and against which several of the same federal (Plaintiff's First Cause of Action) and state law (Plaintiff's Fourth, Sixth, Seventh, and Eighth Causes of Action) claims are asserted by Plaintiff. Moreover, the moving Defendants' arguments supporting dismissal of the relevant state law claims and Plaintiff's opposition are thoroughly presented and do not involve unusual questions of state law. Cf. Chapman v. Crane Co., 694 Fed.Appx. 825, 828 (2d Cir. 2017) (district court may decline to exercise supplemental jurisdiction where, inter alia, “‘the claim raises a novel or complex issue of state law ....” (quoting 28 U.S.C. § 1367(c))). Accordingly, the court should not decline to exercise supplemental jurisdiction over Plaintiff's state law claims at this stage of the proceedings and should exercise jurisdiction over the state law claims.

Plaintiff's State Law Claims Plaintiff's Fourth Cause of Action/Plaintiff's Negligent Screening Claim.

In Plaintiff's Fourth Cause of Action Plaintiff asserts a state law negligence claim against all Defendants based on Defendants' alleged failure to properly screen inmates at the Jail with regard to the inmates risk of suicide, Amended Complaint ¶¶ 93, 94, and Defendants' alleged failure to correctly assess and treat Cheek's mental health condition resulting in Cheek's suicide. Amended Complaint (Dkt. 10-4) ¶ 95. Defendants County, Sheriff Filicetti and Dr. Cervantes request dismissal of this claim.

A. Niagara County.

In support of dismissal of this claim against it, Niagara County contends that under applicable New York law counties in New York State are not liable for the torts, including negligence, committed by the county sheriff or his deputies absent a local law assuming such liability. See County Defendants' Memorandum of Law (Dkt. 10-5) at 23-24 (citing cases). Plaintiff's opposition does not directly respond to Niagara County's contention; instead, Plaintiff argues that Niagara County is vicariously liable for the alleged negligent treatment of Cheek based on the respective failures of Sheriff Filicetti, Dr. Cervantes, PrimeCare, and Sheriff Filicetti's deputies (John Does 1-5) to provide appropriate medical care to Cheek while he was in custody, in misdiagnosing and medicating Cheek's condition, and their respective failures to protect Cheek against self-inflicted harm particularly suicide. Plaintiff's Memorandum of Law (Dkt. 16-2) at 1819.

Additionally, Plaintiff alleges that Sheriff Filicetti was the primary official responsible for the operation of the Jail, safety of Jail inmates during Cheek's custody as well as the hiring, training and supervision of other employees with custodial duties for Jail inmates. See Amended Complaint (Dkt. 10-4) ¶¶ 9, 10, 11, 13, 15. Plaintiff also alleges Niagara County has a duty to maintain the Jail and to train Jail staff in rendering medical and psychiatric care to inmates, see Amended Complaint (Dkt. 10-4) ¶ 51, except for Sheriff's Deputies and corrections officers, see Amended Complaint (Dkt. 104) ¶ 13 (John Doe Defendants were Sheriff's Deputies and corrections officers employed “by Niagara County at Niagara County Jail” while Cheek was an inmate), ¶ 14 (“The Officers were persons engaged in the custody, care, safekeeping, and detention of . . . Cheek” while in the Jail.). However, other than employees of Sheriff Filicetti (see Amended Complaint (Dkt. 10-4) ¶ 11 (“Filicetti and those employed by Niagara County Sheriff's Office were responsible for the . . . day-to-day operations of the Niagara County Jail and the safe-keeping of inmates”)), Plaintiff does not allege any employees of the County were, in fact, so employed. See Amended Complaint (Dkt. 10-4) (passim). In reply, Niagara County reasserts that under New York law, it is not liable for the alleged negligence of Sheriff Filicetti or his deputy sheriffs, including Jail personnel employed by the Sheriff, in the absence of a local law adopted by the County assuming such liability. County Defendants' Reply (Dkt. 17-1) at 12-13 (citing caselaw). Thus, the court finds that the Amended Complaint limits the Plaintiff's Fourth Cause of Action to alleged acts and omissions of Sheriff Filicetti and his deputies and corrections officers. With regard to Dr. Cervantes, the Amended Complaint specifically alleges Dr.

Cervantes is an agent or employee of PrimeCare, not the County or Sheriff Filicetti. See Amended Complaint (Dkt. 10-4) ¶ 21. For purposes of the instant analysis of Niagara County's contention, Dr. Cervantes is therefore not within the scope of this bar to Niagara County's potential liability as asserted by Niagara County based on the alleged negligence of Sheriff Filicetti, his deputies or other unidentified Jail employees of the Sheriff. Further, as alleged, see Amended Complaint (Dkt. 10-4) ¶ 17, as PrimeCare's relationship to Niagara County is based on a contract, Niagara County cannot be liable to Plaintiff for any negligence committed by PrimeCare and its employees based on respondeat superior. See Blanca C. v. County of Nassau, 480 N.Y.S.2d 747, 750-52 (2d Dept. 1984) (counties and private contractors are not vicariously liable for the negligent acts of contract service providers, aff'd, 481 N.E.2d 545 (N.Y. 1985)).

It is well-settled that, as required by Article XIII, § 13(a) of the N.Y. Constitution, a county is not liable for the negligence of a sheriff, or his or her deputies, in the absence of a local law adopted by the county. See DiJoseph v. Erie County, 2020 WL 4194136, at *9 (W.D.N.Y. July 21, 2020) (“The County cannot be held vicariously liable for the negligent acts of the Sheriff or his deputies.”) (citing Johanson v. County of Erie, 22 N.Y.S.3d 763, 765 (4th Dept. 2015); Prezioso, 183 N.Y.S.3d at 831 (“‘[A] county may not be held responsible for the negligent acts of the sheriff and his deputies in the theory of respondeat superior in the absence of a local law assuming such responsibility”) (quoting Mosey, 984 N.Y.S.2d at 709 (internal quotation marks omitted); Villar, 5 N.Y.S.3d at 748)). See also Douglas v. County of Oswego, 573 N.Y.S.2d 236, 238 (S.Ct. Oswego County 1991) (“Douglas”) (“The rationale underlying the extension of county immunity for acts of deputy sheriffs, jailers and other sheriff's employees is that, notwithstanding that they might also be county employees by virtue of the source of their payment, civil service benefits and the like, employees of the sheriff appointed pursuant to [N.Y.] County Law § 652 are extensions of the office of the sheriff.”). As of 2022, Niagara County has not adopted a local law accepting such responsibility, see Cain v. County of Niagara, 2022 WL 616795, at *17 (W.D.N.Y. Mar. 2, 2022), and Plaintiff has not alleged or asserted otherwise. Accordingly, Plaintiff's Fourth Cause of Action alleging a negligence claim against Niagara County based on the alleged negligence of Sheriff Filicetti and his deputies or other Jail employees with respect to Cheek's need for medical assistance while in the Sheriff's custody should be DISMISSED and County Defendants' motion to dismiss such claim should be GRANTED.

B. Sheriff Filicetti.

Sheriff Filicetti contends Plaintiff's Fourth Cause of Action should be dismissed as time-barred and that under New York law a sheriff cannot be held liable for acts or omissions of his deputies, i.e., the five John Doe deputy sheriffs, performing a criminal justice function particularly, as in this case, pertinent to the guarding of inmates at a county jail. Defendants' Memorandum of Law (Dkt. 10-5) at 38-40 (citing cases). Specifically, Sheriff Filicetti argues that as an action brought pursuant to state law against Sheriff Filicetti in his official capacity, Plaintiff's claim is subject to N.Y.C.P.L.R. § 215[1] (“§ 215[1]”) which provides that actions against a county sheriff “by doing an act in his official capacity or by omission of an official duty” must be commenced within one-year. Id. (quoting Adams v. County of Rensselaer, 487 N.E.2d 906, 907 (N.Y. 1985) (“the Sheriff is prescribed, by law, to safely keep inmates of the County Jail” and thus one-year statute of limitations under C.P.L.R. § 215[1] was applicable to bar plaintiff's claim against the sheriff); and citing Houghton, 295 F.Supp.2d at 280 (N.Y.C.P.L.R. § 215[1] one-year statute of limitations period applied where alleged injury stemmed from sheriff's official duty to have custody of the county jail); and Snyder v. Plank, 909 N.Y.S.2d 246, 247 (4^th Dept. 2010) (accord). The court first considers whether Sheriff Filicetti's contention based on the statute of limitations pursuant to § 215[1], constituting an affirmative defense, see Fed.R.Civ.P. 8(c)(1) (defining affirmative defenses which are required to be pleaded as including one based on a statute of limitations) is cognizable on Sheriff Filicetti's Rule 12(b)(6) motion to dismiss.

It is established in the Second Circuit that “[a] defendant may raise the affirmative defense that a claim is time-barred in a motion to dismiss if that defense is apparent from the face of the complaint.” Simmons v. Reich, 2021 WL 5023354, at *1 (2d Cir. Oct. 29, 2021) (citing Pani v. Empire Blue Cross Blue Shield,152 F.3d 67, 74 (2d Cir. 1998)). “When that is the case, the plaintiff has the burden to plead the elements of exceptions to the statute of limitations to meet the plausibility standard.” Id. (citing internal citations omitted). In this case, the court finds that from an examination of Plaintiff's allegations in support of the Fourth Cause of Action, such affirmative defense is “apparent from the face of the complaint.”

First, the only dates alleged with respect to Cheek's custody and care by Defendants include January 12, 2022 as the date Cheek, as a result of an arrest, became a pretrial detainee of Sheriff Filicetti's, Amended Complaint (Dkt. 10-4) ¶ 26, when Plaintiff alleges staff at the Jail became aware Cheek presented with “high risk factors” in his “mental health and potential suicide issues,” id., and February 26 or 27, 2022, the probable dates of Cheek's alleged suicide. See Amended Complaint (Dkt. 10-4) ¶ 56. Thus, regardless of which date Plaintiff's negligence claim accrued on one of those two dates, and it is apparent from the face of the Amended Complaint that such claim against the Sheriff would be subject to the one-year period of limitations pursuant to § 215[1], a fact Plaintiff presumably was aware of, which would obviously apply with the result that by simple computation such one-year period expired February 26, 2023, if Cheek died February 26, 2022, or February 27, 2023, if Cheek died February 27, 2022. Accrual of a right to commence a tort action under New York law “occurs when the claim becomes enforceable, i.e., when all the elements of the tort can be truthfully alleged in a complaint.” Kronos, Inc. v. AVX Corp., 612 N.E.2d 289, 292 (N.Y. 1993) (holding N.Y.C.P.L.R. § 208(a) (citing Jacobus v. Colgate, 111 N.E. 837, 840 (N.Y. 1916) as applied to its wrongful death limitations period tolled until estate administrator appointed). Here, all elements of Plaintiff's alleged tort of negligence were complete upon Cheek's suicide which occurred on February 26^th or 27^th, 2022. The court may take judicial notice of facts established by a calendar, as the accuracy of a calendar cannot be reasonably questioned. See, e.g., Edwards v. Berryhill, 2019 WL 2340953, at *4 n.10 (W.D.N.Y. June 3, 2019) (taking judicial notice of fact established by calendar); Nassry v. St. Luke's Roosevelt Hosp., 2016 WL 1274576, at *13 n.8 (S.D.N.Y. Mar. 31, 2016) (same). In either event, as no later dates relevant to the accrual of Plaintiff's Fourth Cause of Action are alleged in the Amended Complaint, it follows that Sheriff Filicetti may base his motion on the statute of limitations affirmative defense.

Plaintiff's response is based on Plaintiff's assertion that under N.Y.C.P.L.R. § 208(a), the one-year limitations period established under § 215[1] on a claim against a sheriff was tolled to the date of Plaintiff's appointment as administratrix of Cheek's estate on June 26, 2023, see Penberthy Declaration (Dkt. 16) ¶ 6, and authority to bring the instant action on behalf of Cheek's four minor children, as Cheek's distributees thus avoiding the one-year limitations period of § 215[1] by the filing of the Amended Complaint on June 26, 2023. Plaintiff's Memorandum of Law (Dkt. 16-2) at 28 (citing Hernandez v. N.Y.C. Health & Hosps. Corp., 585 N.E.2d 822, 826 (N.Y. 1991) (“Hernandez).¹⁹ However, § 208(a) and Hernandez have been held to be limited to a wrongful death action pursuant to N.Y.E.P.T.L. § 5-4.1[1] (wrongful death action to be commenced within two years of decedent's death). See Machado v. Gulf Oil, L.P., 146 N.Y.S.3d 66, 72 (1^st Dept. 2021) (N.Y. Court of Appeals has “declined to extend the C.P.L.R. 208 toll for a wrongful death claim to a cause of action for personal injury because of the distinction between the two causes of action.”) (citing Heslin v. County of Greene, 923 N.E.2d 1111, 1115-17 (N.Y. 2021) (“Heslin”). County Defendants do not contest Plaintiff's Seventh Cause of Action asserting a wrongful death action against all Defendants as time-barred. County Defendants' Memorandum of Law (Dkt. 17-1) at 18. Accordingly, Plaintiff's contention that the § 215[1] limitations period applicable to Plaintiff's claim was tolled by § 208(a)until June 26, 2023, is without merit.

19 In Plaintiff's Memorandum of Law (Dkt. 16-2), Plaintiff states Plaintiff received Temporary Limited Letters of Administration on June 8, 2023. Dkt. 16-2 at 28. See also Penberthy Declaration (Dkt. 16) ¶ 8.

Here, the gravamen of Plaintiff's Fourth Cause of Action is that Sheriff Filicetti and certain of his deputies, ostensibly the five John Doe Defendants, were negligent in their failure to provide adequate medical assistance to Cheek and to more carefully monitor Cheek so as to prevent his suicide. See Amended Complaint (Dkt. 10-4) ¶¶ 9396. As such, it is fair to conclude that Plaintiff's negligence claim, as alleged in Plaintiff's Fourth Cause of Action, arises from the alleged omissions of Sheriff Filicetti in connection with his official duty to keep inmates safe while in his custody and that all elements of such claim came into being upon Cheek's death, thus accruing this claim. See Kronos, Inc., 612 N.E.2d at 840 (New York claims accrue when all elements come into existence). Therefore, the one-year limitations set forth in § 215[1] is applicable to Plaintiff's Fourth Cause of Action against Sheriff Filicetti and the five John Doe Deputy Sheriffs and corrections officers, if any. Hence, as Plaintiff's claim accrued not later than February 27, 2022, the latest alleged date of Cheek's suicide, see Amended Complaint (Dkt. 10-4) ¶ 6 (“The [Plaintiff's] decedent, Leroy Cheek, III, died on February 26/27, 2022 while in custody of the Niagara County Jail.”) the applicable one-year statute of limitations under § 215[1] expired February 27, 2023; however, the Complaint commencing this action was not filed until May 25, 2023, or approximately three months past the February 27, 2023 date for commencing a timely action for Plaintiff's claim against Sheriff Filicetti. Accordingly, Plaintiff's negligence claim against Sheriff Filicetti and the John Doe Defendants as alleged in Plaintiff's Fourth Cause of Action should be found to be time-barred.

Sheriff Filicetti further contends in support of County Defendants' motion to dismiss that under New York law, a county sheriff “cannot be held personally liable for the acts or omissions of his deputies while performing criminal justice functions, and that this principle precludes vicarious liability for the torts of a deputy [sheriff].” Barr v. Albany County, 406 N.E.2d 481, 485 (N.Y. 1980); Villar v. Howard, 6 N.Y.S.3d 811, 813 (4^th Dept. 2015) (citing Barr, 406 N.E.2d at 485). Guarding of prisoners while housed at a jail is considered as a criminal justice function. See Wilson v. Sponable, 439 N.Y.S.2d 549, 551 (4^th Dept.) (“[g]uarding prisoners accused of crime is a criminal, as opposed to a civil, function”) (citing Flaherty v. Millikin, 86 N.E. 558, 569 (N.Y. 1908)), appeal dismissed, 54 N.Y.2d 834 (1981); Johanson, 22 N.Y.S.3d at 765; Trisvan v. County of Monroe, 809 N.Y.S.2d 369, 374 (4^th Dept. 2006). Therefore, Defendant County's motion to dismiss Plaintiff's Fourth Cause of Action against Sheriff Filicetti should be GRANTED.

C. Dr. Cervantes.

Dr. Cervantes seeks dismissal of Plaintiff's Fourth Cause of Action on two grounds. First, Dr. Cervantes contends that Plaintiff's negligence claim as asserted in Plaintiff's Fourth Cause of Action, based on Plaintiff's allegations, is actually a claim of medical malpractice. Specifically, Dr. Cervantes argues that as Plaintiff's Fourth Cause of Action alleging Dr. Cervantes was negligent in respect to the treatment of Cheek as asserted in the Amended Complaint, see Amended Complaint (Dkt. 10-4) ¶¶ 39-42, 46 (alleging improper prescribing of Prazosin to Cheek by Dr. Cervantes); Amended Complaint (Dkt. 10-4) ¶¶ 48, 66 (alleging Dr. Cervantes was deliberately indifferent to Cheek's deteriorating mental health and suicidal inclination); Amended Complaint (Dkt. 10-4) ¶¶ 30, 77, 85 (Dr. Cervantes failed to properly screen, assess and treat Cheek for risk of suicide); and Amended Complaint (Dkt. 10-4) ¶ 21 (as a licensed physician Dr. Cervantes was the Chief Psychiatrist at the Jail), such negligence should be considered as a claim of medical malpractice. Dr. Cervantes Memorandum of Law (Dkt. 11-5) at 9. Dr. Cervantes therefore contends Plaintiff's claim as alleged in this cause of action is subject to dismissal for failure to comply with the requirements of New York law for medical malpractice claims particularly by failing to allege how Dr. Cervantes's treatment of Cheek deviated from the standard of medical practice applicable to the treatment provided by Dr. Cervantes to Cheek in response to Cheek's apparent PTSD nightmares, see Amended Complaint (Dkt. 10-4) ¶ 39, and that such treatment was the proximate cause of Cheek's suicide. Dr. Cervantes's Memorandum of Law (Dkt. 11-5) at 10 (citing caselaw). Dr. Cervantes further contends that the Fourth Cause of Action, properly considered as one alleging a medical malpractice, is time-barred under N.Y. General Municipal Law § 50-d[2] (“§ 50-d[2]”). Id. at 10.

Specifically, Dr. Cervantes asserts that based on her affidavit submitted to the court with Dr. Cervantes's motion to dismiss, see Exh. 3 to Markel Declaration (Dkt. 114) (“Cervantes's Affidavit”), Dr. Cervantes commenced treating Cheek at the Jail on January 19, 2022 when she prescribed Prazosin for Cheek's PTSD nightmares with an anticipated follow-up within the next 3-4 weeks and later reviewed Cheek's medical chart on February 2, 2022. Cervantes Affidavit (Dkt. 11-4) ¶¶ 5, 6. Thereafter, as averred by Dr. Cervantes, on February 21, 2022, P.A. Paula Dillman diagnosed Cheek with depression and anxiety, discontinued Dr. Cervantes's Prazosin prescription, and prescribed Zoloft to address Cheek's condition. Cervantes Affidavit ¶ 7. According to Dr. Cervantes, given that her last day of her involvement with Cheek, as averred in her affidavit, was February 2, 2022 when she reviewed Cheek's medical chart and even allowing for the continuous treatment doctrine based on NP Dillman's review of Cheek's medical chart on February 21, 2022, thus constituting Plaintiff's accrual date for a malpractice claim against Dr. Cervantes pursuant to § 50-d[2], the applicable limitations period of one-year plus 90 days required by § 50-i[1][c] commenced to run from February 21, 2022 and expired May 22, 2023, or three days prior to the May 25, 2023 filing date of the Complaint in this action thereby rendering Plaintiff's Fourth Cause of Action time-barred. See Dr. Cervantes's Memorandum of Law (Dkt. 11-5) at 11 (citing Prezioso, 183 N.Y.S.3d at 828-29) (holding plaintiff's claim of inadequate care by Dr. Cervantes time-barred by § 50-i[1][c] as brought more than one-year and 90 days following plaintiff's release from jail when plaintiff was no longer subject to Dr. Cervantes's treatment). Dr. Cervantes also contends that the tolling provision of N.Y.C.P.L.R. § 214-a (“§ 214-a”), applicable to medical malpractice claims, extending the accrual date for a medical malpractice claim to the last date of continuous treatment for the same illness, injury or condition, is inapplicable to Plaintiff's claim as based on the asserted facts in Dr. Cervantes's Affidavit. According to Dr. Cervantes, continuous treatment tolling pursuant to § 214-a is inapplicable to Dr. Cervantes's last treatment date of Cheek, February 2, 2022, in the absence of an “ongoing treatment of a medical condition,” given N.P. Dillman commenced treating Cheek on February 21, 2022. Dr. Cervantes's Memorandum of Law (Dkt. 11-5) at 12 (quoting Massie v. Crawford, 583 N.E.2d 935, 937-38 (N.Y. 1991), rearg. denied, 592 N.E.2d 804 (N.Y. 1992).

Here, according to Dr. Cervantes, based on the Cervantes Affidavit, the last date of her treatment of Cheek was February 2, 2022, see Exh. 3 to Markel Declaration (Dkt. 11-4) ¶ 6, the last date necessary for establishing all elements of Plaintiff's right to commence a medical malpractice action, thus negating Cheek's suicide dates of February 26 or February 27, 2022 as the accrual date for the one-year and 90 day period of limitations under § 50-i[1][c], with a corresponding expiration date of May 3, 2023, and, as such, Plaintiff's claim is time-barred.

Plaintiff's opposition does not directly respond to Dr. Cervantes's contention that Plaintiff's Fourth Cause of Action against Dr. Cervantes should be construed as one asserting a medical malpractice claim and should be dismissed for failure to comply with the pleading requirements under New York law for such a claim. See Plaintiff's Memorandum of Law (Dkt. 16-2) at 18-19. Rather, Plaintiff's response to this issue is limited to an assertion that Dr. Cervantes, together with Sheriff Filicetti and the John Doe Defendants, “are alleged to have taken part in the care of Mr. Cheek and . . . failed to adequately tend to his mental health needs.” Plaintiff's Memorandum of Law (Dkt. 16-2) at 19. In opposition to Dr. Cervantes's contention, that properly considered as a malpractice claim and thus subject to § 50-d, the Fourth Cause of Action is time-barred under § 50-i[1][c], Plaintiff responds, first, that Plaintiff's claim is timely based on an accrual date of February 27, 2022, the later date of Cheek's suicide and the date of filing the Complaint, May 25, 2023, thus resulting in a timely filing of the action by two days, i.e., based on an expiration date of May 27, 2023, see Plaintiff's Memorandum of Law (Dkt. 16-2) at 26. Second, Plaintiff asserts that it is not yet established that Dr. Cervantes acted as an agent of a municipality, in this case Niagara County, Plaintiff's Memorandum of Law (Dkt. 16-2) at 26, and that Plaintiff was therefore required to commence an action against Dr. Cervantes in accordance with § 50-i[1][c]. Id. at 26-27. Third, Plaintiff argues that Dr. Cervantes, as an “independent contractor,” is not within the scope of § 50-d and thus Plaintiff's claim is not subject to § 50-i[1][c]'s statute of limitations. Id. Finally, Plaintiff asserts even if Plaintiff's claim is subject to § 50-i[1][c], accrual of the limitation period of one-year plus 90 days was tolled by the continuous treatment principle pursuant to N.Y.C.P.L.R. § 214-a and, based on Dr. Cervantes's Affidavit that a “3-4” week “follow-up” with Cheek was expected as of January 19, 2022, see Dkt. 11-4 ¶ 5, Dr. Cervantes has “admitted” her treatment of Cheek had not been ”completed” as of February 2, 2022, thereby extending, by operation of the continuous treatment rule, the § 50-i[1][c] accrual date to February 26 or February 27, 2022, when Cheek expired. Id. at 28. Plaintiff's opposition to Dr. Cervantes's motion is without merit for several reasons.

First, it is clear that, as Dr. Cervantes contends, based on Plaintiff's allegations against Dr. Cervantes, Plaintiff's Fourth Cause of Action is more properly considered as one alleging medical malpractice. Where a negligence claim, such as that alleged in Plaintiff's Fourth Cause of Action, directly relating to a physician's provision of mental health care is likely to be “substantially related to medical treatment” it is “thereupon properly viewed as a medical malpractice claim”); See Harrell v. N.Y. State Dept. of Corr. and Comty. Supervision, 2019 WL 3821229, at **18-19 (S.D.N.Y. Aug. 14, 2019) (“Harrell”); see also Idiakheua v. N.Y. State Dept. of Corrections, 2022 WL 10604355, at * 15 (E.D.N.Y. Oct. 18, 2022) (“A negligence claim directly relating to a physician or nurse's provision of mental health care is likely to be ‘substantially related to medical treatment' and ‘therefore properly viewed as a medical malpractice claim.'”) (quoting Harrell, 2019 WL 3821229, at **18-19). Whether a claim alleges “ordinary negligence [or] medical malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts.” Pearce v. Feinstein, 754 F.Supp. 308, 310 (W.D.N.Y. 1990); see also Carroll v. United States, 2023 WL 3981420, at *4 (N.D.N.Y. June 13, 2023) (quoting Miller v. Albany Medical Ctr. Hosp., 464 N.Y.S.2d 297, 299 (3^rd Dept. 1983)). Here, given Plaintiff's allegations that Dr. Cervantes was negligent in her failure to properly treat Cheek (see Amended Complaint (Dkt. 10-4) ¶¶ 39-42, 46) (alleging improper prescribing dosage of Prazosin to Cheek) and her failure, as the Jail's chief psychiatrist, to properly assess and treat Cheek for risk of suicide, id. ¶ 30 (“Defendants failed to properly diagnose . . . [Cheek] for his mental health conditions”); ¶ 47 (Cheek's “symptoms and evaluations conducted by Defendants . . . demonstrated [Cheek presented] an increased risk of suicide”), the court finds Plaintiff's allegations involve the exercise of medical skills by Dr. Cervantes that are possessed by physicians and not laymen. Therefore, the Fourth Cause of Action against Dr. Cervantes should be construed as one asserting medical malpractice. See Idiakheua, 2022 WL 10604355, at * 15; Harrell, 2019 WL 3821229, at *18; LaRusso v. St. George's Univ. Sch. of Med, 936 F.Supp.2d 288, 304 (S.D.N.Y. 2013) (“In determining whether an action sounds in medical malpractice or simple negligence, the critical question is the nature of the duty to the plaintiff which the defendant is alleged to have breached .... When the duty arises from the physician patient relationship or is substantially related to medical treatment, the breach gives rise to an action sounding in medical malpractice, not simple negligence.”)

It is also settled New York law that to prevail in a medical malpractice claim, a plaintiff must plead and prove defendant deviated from the accepted standards of medical practice and that the deviation is the proximate cause of plaintiff injuries. See Torres v. City of New York, 154 F.Supp.2d 814, 819 (S.D.N.Y. 2001) (“Torres”); see also James, 2022 WL 17155831, at *15 (quoting Torres); Weston v. Staten Island Care Center. LLC, 203 N.Y.S.3d 390, 391-92 (2d Dept. 2024); Bagley v. Rochester Gen. Hosp., 1 N.Y.S.3d 635, 637 (4^th Dept. 2015) (quoting O'Shea v. Buffalo Medical Group, P.C., 882 N.Y.S.2d 619, 620 (4^th Dept. 2009) appeal dismissed, 918 N.E.2d 964 (N.Y. 2009)). Thus, a plaintiff asserting a medical malpractice claim is required to plead with fair specificity the nature of the physical or psychological malady for which medical treatment was sought from the defendant physician, the applicable standard of treatment for such conditions, and how the defendant physician's treatment deviated from such prevailing standard of care as well as that the deviation proximately caused plaintiff's injury. See Rivera v. Federal Bureau of Prisons, 2018 WL 11312146, at *11 (S.D.N.Y. Dec. 14, 2018) (to state a claim for medical malpractice, a plaintiff must allege the condition for which treatment was sought, the treatment provided, and that the treatment deviated from the acceptable standard of care); Torres, 154 F.Supp.2d at 879 (same). Nor is a plaintiff permitted to avoid such pleading prerequisite by denominating the claim as sounding in ordinary negligence. See Harrell, 2019 WL 3821229, at **18-19 (finding the plaintiff's claim, although denominated as for negligence, was actually for medical malpractice and was time-barred). Thus, fairly read, Plaintiff's Fourth Cause of Action should be considered as alleging medical malpractice against Dr. Cervantes. First, Plaintiff sued Dr. Cervantes as a psychiatrist. Amended Complaint (Dkt. 10-4) ¶ 21. (“Dr. Cervantes . . . was . . . Chief Psychiatrist at the Niagara Jail . . ., responsible for [Cheek's] medical care.”). Second, Dr. Cervantes is alleged to have improperly prescribed a medication and dosage to Cheek, which only a licensed health care professional can do in New York State and of which the court takes judicial notice. See N.Y. Educ. Law § 6810[1]. Third, insofar as Dr. Cervantes is accused by Plaintiff of misdiagnosing Cheek's mental condition, see Amended Complaint (Dkt. 10-4) ¶ 30. Again, given that Dr. Cervantes is sued as a physician, such allegations can only be reasonably construed as alleging Dr. Cervantes had thereby engaged in medical malpractice. Thus, a fair review of the Amended Complaint supports that Plaintiff's Fourth Cause of Action asserts a medical malpractice claim and not a basic negligence claim against Dr. Cervantes. The court turns to Dr. Cervantes's contention that the Fourth Cause of Action, whether treated as a negligence or a malpractice claim, is time-barred pursuant to Gen. Mun. Law § 50-i[1][c].

With regard to the timeliness of Plaintiff's Fourth Claim against Dr. Cervantes, Section 50-d[2] provides that no action for medical malpractice may be brought against a physician, like Dr. Cervantes, who is employed by a municipal jail and renders care to a person, like Cheek, in the custody of a public jail, without receiving compensation by the person treated, unless such action is brought in accordance with N.Y. Gen. Mun. Law § 50-i[1][c] which requires the action be commenced within one-year and 90 days “after the happening of the event upon which the claim is based.” N.Y. Gen. Mun. Law § 50-i[1][c]. Under New York law, an action for tort damages accrues “when the claim become enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint.” Kronos, Inc., 612 N.E.2d at, 292.

As discussed in connection with Sheriff Filicetti's contention that Plaintiff's Fourth Cause of Action is time-barred pursuant to N.Y.C.P.L.R. 215[1], see, Discussion, supra, at 90-94, it is settled Second Circuit law that “[a] defendant may raise the affirmative defense that a claim is time-barred in a [Rule 12(b)(6)] motion to dismiss if that defense is apparent from the face of the complaint.” Simmons, 2021 WL 5023354, at *1 (citing Pani, 152 F.3d at 74)). Here, the court finds that Dr. Cervantes's reliance on § 50-i[1][c] constitutes an affirmative defense that is not fully apparent from the face of the Amended Complaint for the reason that whether Plaintiff's claim accrued on February 2, 2022 as Dr. Cervantes asserts in the Cervantes Affidavit, or on February 26 or 27, 2022 as Plaintiff argues, is dependent on the facts asserted by Dr. Cervantes's Affidavit, which are not alleged in the Amended Complaint and has not been accepted by the court as a pleading in this case. See, Discussion, supra, at 45-46. A fair reading of the Amended Complaint indicates it is barren of any dates related to Dr. Cervantes's treatment of Cheek upon which a statute of limitations defense can be predicated. Particularly, although the date of Cheek's initial incarceration is alleged to be January 12, 2022 (see Amended Complaint (Dkt. 10-4) ¶ 26, and Dr. Cervantes allegedly improperly prescribed Prazosin to Cheek, no date of such improper prescription is alleged. See Id. ¶¶ 39-41 (alleging Dr. Cervantes improperly prescribed Prazosin to Cheek during Cheek's custody in the Jail but without any statement alleging the date of such improper prescription). No other dates relative to Cheek's care by Dr. Cervantes and N.P. Dillman similar to those provided in the Cervantes Affidavit upon which the accrual date for Plaintiff's claim can be determined on the face of the Amended Complaint are alleged. In particular, N.P. Dillman's diagnosis of Cheek and prescription of Zoloft on February 21, 2022 is not mentioned in the Amended Complaint. Dr.

Cervantes's § 50-i[1][c] defense therefore cannot be determined on the face of the Complaint and the court may not address Dr. Cervantes's contention, as presented on Dr. Cervantes's Rule 12(b)(6) motion, that Plaintiff's Fourth Cause of Action against her, properly construed as a medical malpractice claim within the scope of § 50-d and § 50-i[1][c], is time-barred. To illustrate, the possible significance of this finding assuming Plaintiff's claim actually accrued on or before February 24, 2023, thereby requiring the action be commenced no later than May 25, 2023, Plaintiff's claim would be timely as filed May 25, 2023. It is therefore unnecessary to address Plaintiff's argument that based on the allegations in the Amended Complaint Dr. Cervantes is not an agent of the County and is therefore not subject to § 50-i[1][c]. Nor does Dr. Cervantes assert such a contention. See Dr. Cervantes's Memorandum of Law (Dkt. 11-5) at 9-10. Nevertheless, based on the Plaintiff's failure to allege the substantive prerequisites under New York law to a medical malpractice claim, see Discussion, supra, at 95-101, Dr. Cervantes's motion directed to Plaintiff's Fourth Cause of Action, should be GRANTED.

Plaintiff's Fifth Cause of Action/Plaintiff's Negligent Failure to Train and N.Y. Corrections Law § 500-c Claim.

Plaintiff's Fifth Cause of Action asserts Niagara County and Sheriff Filicetti are liable to Plaintiff based on negligence in performing these Defendants' respective duties under N.Y. Corrections Law § 500-c[4] (“§ 500-c[4]”) which states, as relevant, that as the Sheriff of Niagara County, Sheriff Filicetti “shall receive and safely keep in the county jail of his county each person lawfully committed to his custody ....”²⁰

20 N.Y. Corrections Law § 500-c[4] imposes this duty upon the “chief executive officer of a county;” § 500-c[13] in turn imposes this duty upon the Sheriff of Niagara County notwithstanding § 500-c[4]'s reference to a county's chief executive officer. N.Y. Corrections Law § 500-c[2] also provides that for the counties within the City of New York, the City Commissioner of Corrections and in Westchester County the County Commissioner of Corrections has such duty.

Specifically, Plaintiff alleges that Niagara County and Sheriff Filicetti were under the duty to safely keep, including to provide necessary medical care to, Cheek. Amended Complaint (Dkt. 10-4) ¶ 99. Plaintiff further alleges that as a result of the negligent training, supervision and retention of officers and personnel, presumably the John Doe Deputy Sheriffs, who worked at the Jail, attributable, as alleged by Plaintiff, to Niagara County and Filicetti, such officers and Jail personnel negligently disregarded their duties, as well as under certain state rules and regulations, in failing to properly supervise Cheek thereby allowing Cheek to commit suicide, in violation of § 500-c[4], [13]. See Amended Complaint (Dkt. 10-4) ¶ 100. Niagara County and Sheriff Filicetti seek dismissal of this claim on the additional ground that it is duplicative of Plaintiff's Eighth Cause of Action which also alleges negligent hiring, training and supervision of Jail personnel by County Defendants. See County Defendants' Memorandum of Law (Dkt. 16-5) at 25, 40-41. In Plaintiff's Eighth Cause of Action, Plaintiff asserts all Defendants negligently hired, trained, supervised and retained Jail staff which failures resulted in Cheek's suicide. See Amended Complaint (Dkt. 10-4) ¶¶ 124-131. A fair review of Plaintiff's allegations in support of Plaintiff's Eighth Cause of Action supports a conclusion that it is essentially duplicative of the allegations in support of Plaintiff's Fifth Cause of Action asserted against all Defendants and, accordingly, the court addresses more fully the issues presented by County Defendants in connection with its treatment of Plaintiff's Eighth Cause of Action. See, Discussion, infra, at 118-144.

A. Niagara County.

In support of County Defendants' motion to dismiss Plaintiff's Fifth Cause of Action, Niagara County contends that any duty created by § 500-c is directed solely to a county sheriff, and not the County itself. County Defendants' Memorandum of Law (Dkt. 16-5) at 24 (citing cases). Additionally, Niagara County argues that under New York law it is not liable for any negligence as a result of inaction on the part of the deputies or other Jail personnel employed by Sheriff Filicetti. Id. at 25; see, Discussion, supra, at 89. Plaintiff's response, which does not directly address Niagara County's contention, is limited to arguing that County Defendants have failed to provide any authority to support that Sheriff Filicetti is not liable to Plaintiff for negligence in performing his duties under § 500-c. Plaintiff's Memorandum of Law (Dkt. 16-2) at 19-20 (citing LaVigne v. Allen, 321 N.Y.S.2d 179, 181 (3^rd Dept. 1971) (“LaVigne”) (holding complaint against a sheriff alleging negligence in connection with mentally ill prisoner's suicide while in sheriff's custody stated a claim under state law). However, consistent with Plaintiff's reliance on the holding in LaVigne, Plaintiff concedes that her Fifth Cause of Action does not lie against Niagara County. Id. at 20 (“[A]dmittedly, this [Fifth Cause of Action] cause of action is appropriately plead [sic] only as against Defendant Sheriff Filicetti.”)

As Niagara County argues, New York courts distinguish between a statutory duty imposed by § 500-c upon a sheriff to safely keep prisoners in a jail and the duty imposed upon a county to provide and maintain a jail building itself created by N.Y. County Law § 217 (“Each county shall continue to maintain a county jail ....”). See Ball, 2021 WL 5903308, at *4 (citing Freeland, 997 N.Y.S.2d at 862) (“The County's duty to provide and maintain the jail building is distinguishable from defendant Sheriff's duty to ‘receive and safely keep' prisoners in the jail over which he has custody” and N.Y. Correct. Law § 500-c and N.Y. County Law § 217). Thus, no statutory duty with respect to the care and custody of Jail inmates as relevant to the instant case is imposed on Niagara County by § 500-c[4], [13], and Plaintiff's related claim of the County's negligence in training, supervision and retention of its employees also should be DISMISSED, and Plaintiff concedes as much. Therefore, County Defendants' motion to dismiss Plaintiff's Fifth Cause of Action against Niagara County on these grounds should be GRANTED.

B. Sheriff Filicetti.

In support of County Defendants' motion to dismiss Plaintiff's Fifth Cause of Action against Sheriff Filicetti, the Sheriff again contends Plaintiff's claim is time-barred by C.P.L.R. § 215[1] (action against sheriffs acting in his official capacity or omitting to perform an official duty subject to one-year period of limitations), and (2) that as Sheriff, he cannot, under New York law, be liable for the acts or omissions of his deputies and other Jail staff who are performing a criminal justice function. See County Defendant's Memorandum of Law (Dkt. 10-5) at 39-40 (citing cases). In opposition, Plaintiff argues that Sheriff Filicetti has failed to provide any legal authority holding that Plaintiff's claim as alleged in this cause of action cannot be pursued against the Sheriff, Plaintiff's Memorandum of Law (Dkt. 16-2) at 20, and that the one-year statute of limitations of § 215[1] was tolled by N.Y.C.P.L.R. § 208(a) which tolls a one-year statute of limitations for the period of a plaintiff's disability. Plaintiff's Memorandum of Law (Dkt. 16-2) at 28 (quoting Hernandez, 585 N.E.2d at 826). Plaintiff therefore asserts that as Plaintiff is the representative of Cheek's four minor children, appointed on June 8, 2023, id., the Amended Complaint was filed timely on June 26, 2023. Plaintiff is incorrect.

As discussed in connection with Plaintiff's Fourth Cause of Action alleging negligence against Sheriff Filicetti, see Discussion, supra, at 92-93, Hernandez's holding that § 208(a) tolls a statute of limitations because of the disability created by a distributee's minority is limited to a wrongful death action brought pursuant to N.Y.E.P.T.L. § 5-4.1[1]. See Machado, 146 N.Y.S.3d at 72 (N.Y. Court of Appeals has limited Hernandez's holding of the tolling effect of § 208(a) to wrongful death claims) (citing Heslin, 923 N.E.2d at 1115-17). Therefore, Plaintiff's contention that Plaintiff's Fifth Cause of Action is timely against Sheriff Filicetti based on the application of § 208(a) is without merit for the same reason that the District Judge should, as recommended, find that Plaintiff's Fourth Cause of Action negligence claim against Sheriff Filicetti is time-barred. Further, courts have held that § 215[1] applies to state law claims against a sheriff and his deputies arising from the exercise of their official duties. See Houghton, 295 F.Supp.2d at 280 (§ 215[1]'s one-year limitation period applies to county sheriff and his deputies for acts based on official conduct) (citing Kingston v. Erie County, 505 N.Y.S.2d 9 (4^th Dept. 1986)); see also Snyder, 909 N.Y.S.2d at 247 (§ 215[1] applied to claim based on sheriff's alleged failure to keep jail in safe condition). Additionally, Plaintiff fails to rebut Sheriff Filicetti's contention that absent a local law adopting responsibility for acts by a sheriff or his deputies, a sheriff is not liable for the negligence of his deputies in the performance of a criminal justice function such as the guarding of prisoners in a county jail. See Barr, 406 N.E.2d at 485; Villar, 6 N.Y.S.3d at 813 (court properly granted defendant sheriff's motion to dismiss complaint to the extent plaintiff alleged that defendant is vicariously liable for the negligence of his deputies in the absence of a local law adopting such liability) (citing Barr, 406 N.E.2d at 485; and Trisvan, 809 N.Y.S.2d 349, 369 (4^th Dept. 2006)). Thus, Plaintiff's opposition to Sheriff Filicetti's motion on this issue is without merit and County Defendants' motion to dismiss Plaintiff's Fifth Cause of Action against Sheriff Filicetti should be GRANTED.

Plaintiff's Sixth Cause of Action/Plaintiff's Malpractice Claim.

In Plaintiff's Sixth Cause of Action Plaintiff alleges all Defendants, including Niagara County, Sheriff Filicetti, Dr. Cervantes, PrimeCare, and the John Doe Deputy Sheriffs, negligently failed to diagnose and provide proper medical care for Cheek, including a referral to a hospital despite knowing, or reasonably should have known, Cheek was experiencing a mental health crisis while in custody thereby constituting medical malpractice. Amended Complaint (Dkt. 10-4) ¶¶ 104-108. Plaintiff also alleges that Niagara County and Sheriff Filicetti had a statutory duty to provide a jail physician, as well as medical care and treatment, to inmates of the Jail pursuant to N.Y. Correction Law § 501[1] (“§ 501[]”). Amended Complaint (Dkt. 10-4) ¶ 103. Plaintiff also alleges Defendants violated 9 N.Y.C.R.R. § 7010.1(b) which requires jail personnel to promptly screen inmates for serious and life threatening medical conditions. Amended Complaint (Dkt. 10-4) ¶¶ 104, 105, 110.

A. Niagara County.

In support of County Defendants' motion to dismiss these claims against Niagara County, the County contends that N.Y. County Law § 501[1], [2], which requires counties in New York State appoint a physician or “procure” the services of a medical services corporation to provide medical services to jail inmates, does not provide a basis for a medical malpractice claim nor does it impose liability upon the County for medical malpractice arising from such services. County Defendant's Memorandum of Law (Dkt. 10-5) at 26. Niagara County further contends that any alleged violation of 9 N.Y.C.R.R. § 7010.1(b) does not create a private right of action. Id. (citing Freeland, 997 N.Y.S.2d at 863 (state law civil rights claim against sheriff and undersheriff based on violation of N.Y.C.R.R. § 7010.1 dismissed as the regulation does not confer a private right of action upon which the regulation may be enforced and Powlowski v. Wullich, 479 N.Y.S.2d 89, 94 (4^th Dept. 1984)). Plaintiff opposes Niagara County's contention asserting § 501 does not create liability for malpractice on the County on several grounds.

First, Plaintiff asserts that as Niagara County has engaged in a proprietary function by providing medical care, particularly psychiatric treatment, to Jail inmates as required by Correction Law § 501, the County is held to the same duty of care as private individuals, such as physicians, who engage in similar activities would be. Plaintiff's Memorandum of Law (Dkt. 16-2) at 21 (citing Sebastian v. State of New York, 720 N.E.2d 878, 880 (N.Y 1999) (“proprietary functions” are those “in which governmental activities essentially substitute for or supplement ‘traditionally private enterprises'”)). Thus, according to Plaintiff, all Defendants, including Niagara County, are held to the usual standard of care in a state law negligence action, i.e., whether the alleged injury to Cheek was, under the circumstances, reasonably foreseeable. Id. at 22. Plaintiff further contends that under New York caselaw, Niagara County is responsible for any malpractice committed by Dr. Cervantes based on respondeat superior. See Plaintiff's Memorandum of Law (Dkt. 16-2) at 22 (citing Delosh v. City of Syracuse, 407 N.Y.S.2d 940, 941-42 (4^th Dept. 1978) (“Delosh”); Cooper, 375 N.Y.S.2d at 934 (“Cooper”); and Douglas, 573 N.Y.S.2d at 242 (“Douglas”). Niagara County does not respond to this contention nor does Plaintiff respond to Niagara County's contention that 9 N.Y.C.R.R. § 7010.1(b) does not support of private right of action. See County Defendants' Reply Memorandum of Law (Dkt. 17-1) at 19-20; Plaintiff's Memorandum of Law (Dkt. 16-2) at 20-22.

In reply, Niagara County reiterates its contention, see County Defendants' Memorandum of Law (Dkt. 10-5) at 26 (“Niagara County did not diagnose, treat, or otherwise care for . . . [Cheek]”) that Niagara County could not have committed medical malpractice as it is prerequisite to such a claim that the services from which the claim arises have been provided by a physician or another health care professional, and in this case Plaintiff has alleged the relevant medical services rendered to Cheek were provided by PrimeCare, a medical services corporation, and Dr. Cervantes, the Chief Psychiatrist at the Jail, as PrimeCare's employee, Amended Complaint (Dkt. 10-4) ¶¶ 17, 21; County Defendants' Reply (Dkt. 17-1) at 13-14, and not by Niagara County or any of its employees. Additionally, Niagara County contends that Defendant PrimeCare is alleged by Plaintiff to have engaged in the proprietary function of providing medical services to Jail inmates, not Niagara County, by virtue of a contract as authorized by § 501. See County Defendants Reply (Dkt. 17-1) at 14 (citing Amended Complaint (Dkt. 10-4) ¶ 17) (alleging Niagara County contracted with Defendant PrimeCare to provide medical services to Jail inmates). See Schrempf v. State, 487 N.E.2d 883, 886 (N.Y. 1985) (observing the provision of medical and psychiatric care to state institution mental patient is proprietary).

In Douglas, the court held that liability for malpractice by a physician duly appointed pursuant to N.Y Correction Law § 501[1] (“§ 501[1]”) attached to the defendant county under respondeat superior given that the physician in that case was directly appointed by the county pursuant to § 501[1]. See Douglas, 573 N.Y.S.2d at 241-42. Here, in contrast to the facts in Douglas, the Amended Complaint alleges that Niagara County entered into a contract with PrimeCare, a medical services corporation, to provide medical services to Jail inmates pursuant to N.Y. Correction Law 501[2], see Amended Complaint (Dkt. 10-4) ¶¶ 17, 21, and, as such, there is no basis to support an allegation that PrimeCare was thereby acting as a County officer or employee sufficient to impute liability against the County based on respondeat superior. See Schrempf, 487 N.E.2d at 886. Nor does Plaintiff's reliance on Cooper or Delosh provide support for Plaintiff's contention. In Cooper, the court determined that the jail doctor defendant could be liable to plaintiff for failure to provide adequate medical care in violation of plaintiff's constitutional rights but did not address whether the county was required to indemnify defendant-doctor based on respondeat superior. See Cooper, 375 N.Y.S.2d at 933-34. In Delosh, the court found that the defendant county was not liable for malpractice committed by a medical school extern hired by the county sheriff. See Delosh, 407 N.Y.S.2d at 941. Therefore, any medical malpractice claim arising from medical services provided by PrimeCare, specifically, Dr. Cervantes, would not attach to Niagara County by reason of respondeat superior. See Blanca C., 480 N.Y.S.2d at 750-52 (counties and private contractors are not vicariously liable for the negligent acts of contract service providers); see c.f, RJC Realty Holding Corp. v. Republic Franklin Ins. Co., 808 N.E.2d 1263, 1265-66 (N.Y. 2004) (under the doctrine of respondeat superior, unlike in a § 1983 action, an employer can be held “vicariously liable for torts committed by an employee acting within the scope of employment . . ., so long as the tortious conduct is generally foreseeable and a natural incident of the employment.”). Instead, any possible malpractice committed by Dr. Cervantes would be more likely imputed to PrimeCare as her employer. Moreover, as discussed below, see Discussion, infra, at 115-16 (quoting Marshall v. Rosenberg, 151 N.Y.S.3d 240, 243 (3d Dept. 2021) (quoting McNulty v. City of New York, 762 N.Y.S.2d 162, 166 (N.Y. 2003)), a medical malpractice claim under New York law can only be brought against a health care professional. Other than Dr. Cervantes, Plaintiff does not allege the involvement of any other health care professional in the treatment of Cheek. As such, Plaintiff's Sixth Cause of Action fails to plausibly plead a medical malpractice claim against Niagara County and County Defendants' motion to dismiss Plaintiff's Sixth Cause of Action for malpractice against Niagara County should therefore be GRANTED.

B. Sheriff Filicetti.

In support of County Defendants' motion to dismiss Plaintiff's Sixth Cause of Action against Sheriff Filicetti, Sheriff Filicetti contends, first, that such claim is time-barred under N.Y.C.P.L.R. § 215[1] requiring actions against a county sheriff acting in his official capacity or by omission of an official duty to be commenced within one-year of accrual of the claim. County Defendants' Memorandum of Law (Dkt. 10-5) at 39 (citing caselaw). As Cheek is alleged to have died at the latest on February 27, 2022, see Amended Complaint (Dkt. 10-4) ¶¶ 12, 50 (Cheek succumbed to suicide on February 26 or 27, 2022), under § 215[1] the one-year limitations period for Plaintiff's malpractice claim against Sheriff Filicetti expired on February 27, 2023, and as this action was commenced May 25, 2023 or approximately three months after the expiration date of the statute of limitations, Sheriff Filicetti therefore contends the instant claim against Sheriff Filicetti is now time-barred. Id. ²¹Second, Sheriff Filicetti argues, See County Defendants' Memorandum of Law (Dkt. 10-5) at 41, that under N.Y Correction Law § 501 it is Niagara County not the County Sheriff that has the statutory responsibility to provide medical services to Jail inmates by appointing a physician or procuring such services through a medical services corporation. See N.Y. Correct. Law § 501[1], [2]; see also Wilson, 439 N.Y.S.2d at 552 (“The county does have the duty to ‘maintain' the jail (County Law, § 217) and to provide a jail physician (County Law § 501)”).

21 As to Sheriff Filicetti's contention that Plaintiff's Sixth Cause of Action against him is time-barred under N.Y.C.P.L.R. § 215[1], an affirmative defense, the court has determined in connection with its recommendation on County Defendants' motion to dismiss Plaintiff's Fourth Cause of Action, that such affirmative defense is properly asserted in County Defendants' Rule 12(b)(6) motion. See Discussion, supra, 90-91.

Plaintiff opposes Sheriff Filicetti's contentions by asserting the applicable one-year statute of limitations for such claims against a sheriff is tolled in this case because all of Cheek's distributees are minor children and the claim could not be sued until a public administrator was appointed as provided by N.Y.C.P.L.R. § 208(a). Plaintiff's Memorandum of Law (Dkt. 16-2) at 28 (citing Hernandez, 585 N.E.2d at 825 (holding that § 208(a) toll applies to wrongful death action until appointment of guardian for minor distributees or majority of sole distributee)). Plaintiff also asserts that Sheriff Filicetti “in fulfillment of the [Niagara] County's duty to provide medical care and treatment to . . . [Cheek] negligently failed to diagnose . . . [Cheek's] health condition.” Plaintiff's Memorandum of Law (Dkt. 16-2) at 21. Sheriff Filicetti rebuts Plaintiff's argument that the effect of N.Y.C.P.L.R. § 215[1] is tolled by N.Y.C.P.L.R. § 208(a) by arguing that Hernandez and § 208(a) are limited to wrongful death actions brought pursuant to N.Y.E.P.T.L. § 5-4.1. County Defendants' Reply (Dkt. 17) at 18 (citing cases). Plaintiff's contention is in error for three reasons.

First, Plaintiff's assertion that N.Y.C.P.L.R. § 208(a) tolls the § 215[1] one year limitations period for Plaintiff's malpractice claim is incorrect given that § 208(a) is limited to apply only to wrongful death actions, see Machado, 146 N.Y.S.3d at 73 (citing Heslin, 923 N.E.2d at 1115-16 (stating that in Heslin N.Y. Court of Appeals “declined to extend the CPLR 208(a) toll on a wrongful death claim to a cause of action for personal injury because of the distinction between the two causes of action.”)). As such, Plaintiff's tolling contention based on § 208(a) is without merit. Second, Plaintiff's assertion that Sheriff Filicetti bears responsibility for providing medical care to inmates supporting a medical malpractice claim against the Sheriff, Plaintiff's Memorandum of Law (Dkt. 16-2) at 20-21, fails to recognize that under New York law medical malpractice can only be asserted against medical professionals and persons who act in concert with such professionals. See Marshall, 151 N.Y.S.3d at 243 (“The threshold question in determining a medical professional's liability [in a medical malpractice action] is whether that professional owed the plaintiff a duty of care; ‘taking into account common concepts of morality, logic and consideration of the social consequences of imposing the duty.'” (quoting McNulty, 792 N.E.2d at 166)); see also Morres v. City of New York, 154 F.Supp.2d 814, 819 (S.D.N.Y. 2001) (“[the plaintiff] fails to allege, and admits that he does not even know, whether . . . [defendants] are even medical doctors,” [and as such] “the claim is not specific enough to survive a motion to dismiss”); Rabinovich v. Maimonides Medical Center, 113 N.Y.S.3d 198, 202 (2d Dept. 2019) (“‘The distinction between ordinary negligence and [medical] malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts'”) (quoting Jeter v. New York Presbyt. Hosp., 101 N.Y.S.3d 411, 413 (2d Dept. 2019)). Further, the New York Court of Appeals has held that a medical malpractice claim “may apply to acts or omissions committed by individuals and entities other than physicians where those acts or omissions either constitute medical treatment or bear a substantial relationship to the rendition of medical treatment.” Karasek v. LaJoie, 699 N.E.2d 889, 891 (N.Y. 1998) (“Karasek”) (citing Bleiler v. Bodnar, 479 N.E.2d 230, 234 (N.Y. 1985)). As relevant to Plaintiff's Sixth Cause of Action, in Karasek, the court also determined “diagnostic and treatment services provided by . . . medically trained” psychiatrists are “'medical' in nature ....”

Karasek, 699 N.E.2d at 892. Here, as Plaintiff has not alleged Sheriff Filicetti is a medically trained professional or that he provided Cheek with services having a substantial relationship to the rendition of medical treatment to Cheek by Dr. Cervantes or other PrimeCare personnel, it follows that Sheriff Filicetti cannot be liable for a claim of medical malpractice arising from any alleged failure to properly diagnose or treat Cheek while in the Sheriff's custody as Plaintiff alleges. Third, New York courts have held, with respect to a jail physician providing medical services to jail inmates, appointed pursuant to § 501[2] such as Dr. Cervantes, “there is no reason to suppose that the activities of a provider of medical services in a jail would or could be supervised or controlled by the Sheriff, as would the activities of deputy sheriffs and other jail personnel.” Douglas, 573 N.Y.S.2d at 241. Notably, nothing in the Amended Complaint purports to allege Sheriff Filicetti supervised or directed Dr. Cervantes's medical interactions with Cheek. As noted, see Facts, supra, at 6, the Amended Complaint specifically alleges Dr. Cervantes is an employee (or agent) of PrimeCare, not Sheriff Filicetti. See Amended Complaint (Dkt. 10-4) ¶ 21 (Dr. Cervantes is an “agent or employee” of PrimeCare and was “responsible for the medical care of [Cheek].”).

Where, as asserted, the claim is shown to be without legal merit, such claim cannot be found to satisfy the Iqbal test of plausibility test. See Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010) (“Under Iqbal[‘s] plausibility standard], factual allegations must be sufficient to support legal conclusions.” (citing Iqbal, 556 U.S. at 680)). Thus, there is no basis for Plaintiff's Sixth Cause of Action against Sheriff Filicetti, and County Defendants' motion directed to this claim as to Sheriff Filicetti should be GRANTED.

C. Dr. Cervantes.

In support of Dr. Cervantes's motion to dismiss Plaintiff's Sixth Cause of Action asserting a medical malpractice claim, Dr. Cervantes contends that (1) Plaintiff's claim fails to properly plead the required elements, applicable under New York law, of a medical malpractice claim, and that, (2) in any event, such claim is untimely having been commenced May 25, 2023, three days after expiration of the applicable one-year and 90 day time period applicable to such claims under N.Y. Gen. Mun. Law § 50-i[1][c]. Dr. Cervantes's Memorandum of Law (Dkt. 11-5) at 10-11. In addition to a generalized assertion that Dr. Cervantes owed Cheek a duty to exercise reasonable care, Plaintiff's Memorandum of Law (Dkt. 16-5) at 22, in Plaintiff's response to Dr. Cervantes's contentions, Plaintiff also asserts that Plaintiff's allegations against Dr. Cervantes based on Dr. Cervantes's failure to provide Cheek with “proper or adequate medical treatment states a viable cause of action against the County Defendants.” Id.

It is settled New York law, that in asserting a medical malpractice claim, a plaintiff must plead and prove that defendant physician's professional standard deviated from the accepted standard of medical practice applicable to plaintiff's treatment and that the deviation was the proximate cause of plaintiff's injury. See Torres, 154 F.Supp.2d at 819 (citing New York caselaw); see Mazella v. Beals, 57 N.E.3d 1083, 1090 (N.Y. 2016) (“In a medical malpractice action, the plaintiff must show that the ‘defendant deviated from acceptable medical practice, and that such deviation was a proximate cause of the plaintiff's injury.'” (quoting James v. Wormuth, 997 N.E.2d 133, 136 (N.Y. 2013))); Wilson v. Fin Kelstein, N.Y.S.3d, 2024 WL 1645320, at *2 (2d Dept. Apr. 17, 2024) (“In order to establish the liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff's injuries.” (quotation omitted)); see also Weston, 203 N.Y.S.3d at 391-92 (same); Bagley, 1 N.Y.S.3d at 637 (same). Additionally, the court observes that Plaintiff has failed to comply with N.Y.C.P.L.R. § 3012-1(a)[1] which requires that in “any medical malpractice action, the complaint must be accompanied by a certificate executed by the plaintiff's attorney declaring that the attorney has: reviewed the facts of the case; consulted with a licensed physician whom the attorney reasonably believes is knowledgeable in the relevant issues involved in the action; and concluded that there is a reasonable basis to commence the action.” Finnegan v. University of Rochester, 180 F.R.D. 247, 248-49 (W.D.N.Y. 1998). Here, a fair reading of the Amended Complaint fails to indicate Plaintiff has put forth any allegations complying with the applicable pleading requirements for a medical malpractice claim required by New York law, including N.Y.C.P.L.R. § 3012-1(a)[1], sufficient to withstand a motion to dismiss for failure to state a claim. See Ruston, 610 F.3d at 59. Second, as noted, Dr. Cervantes's also contends that even if Plaintiff's malpractice claim has been sufficiently pleaded it is nevertheless time-barred under § 50-i[1][c], Dr. Cervantes's Memorandum of Law (Dkt. 11-5) at 11. However, this contention is addressed in connection with Plaintiff's Fourth Cause of Action. See Discussion, supra, at 102-103 (finding that as an affirmative defense, Dr. Cervantes's contention that Plaintiff's claim is time-barred is not cognizable on Dr. Cervantes's Rule 12(b)(6) motion as the facts necessary to determine such defense do not appear on the face of the Amended Complaint) (citing Simmons, 2021 WL 5023354, at *1)). Accordingly, for the same reasons discussed in connection with Plaintiff's Fourth Cause of Action, the court finds Dr. Cervantes's contention that Plaintiff's claim is time-barred under § 50-i[1][c] not cognizable on Dr. Cervantes's motion to dismiss. Irrespective of such determination, the court also finds Plaintiff has failed to plausibly allege a medical malpractice claim against Dr. Cervantes for the reasons discussed above, see Discussion, supra at 117-18. Accordingly, Plaintiff's Sixth Cause of Action against Dr. Cervantes for medical malpractice, has not been plausibly alleged and therefore Dr. Cervantes's motion to dismiss Plaintiff's Sixth Cause of Action should be GRANTED.

Plaintiff's Seventh Cause of Action/Plaintiff's Wrongful Death Claim.

In Plaintiff's Seventh Cause of Action, Plaintiff alleges a wrongful death claim pursuant to N.Y.E.P.T.L. § 5-4.1 against all Defendants based on the negligence and reckless disregard of the Defendants' obligations to provide Cheek with proper medical treatment and protection against suicide causing Cheek's suicide and the resulting loss of support for his four minor children. Amended Complaint (Dkt. 10-4) ¶¶ 117-20. Dismissal of this claim is requested by Niagara County, Sheriff Filicetti and Dr. Cervantes.

A. Niagara County.

In support of dismissal of this claim, Niagara County contends that as Plaintiff's § 1983 and state law claims are all subject to dismissal as a matter of law, and as such claims also form the basis of Plaintiff's wrongful death action, this claim necessarily fails as well. County Defendants' Memorandum of Law (Dkt. 16-5) at 30.²²Plaintiff's opposition asserts that as this claim is “not specifically duplicative of any other cause of action [alleged by Plaintiff], otherwise warranting dismissal,” dismissal of Plaintiff's Seventh Cause of Action is not warranted. Plaintiff's Memorandum of Law (Dkt. 16-2) at 22-23 (citing Greasley v. United States, 2021 WL 935731, at *5 (W.D.N.Y. Mar. 11, 2021) (in regard to a New York wrongful death claim “appellate courts have determined that it is possible to allege a mixture of medical malpractice and negligence”)). Plaintiff further argues that as Plaintiff has alleged “a plausible negligence claim,” under Plaintiff's Fourth and Fifth Causes of Action, Plaintiff's Seventh Cause of Action should be sustained. Id.²³ Plaintiff misapprehends County Defendants' contention. As County Defendants explain, the flaw in Plaintiff's wrongful death action is not that it is an improper duplication of Plaintiff's § 1983, negligence, or medical malpractice claims as Plaintiff contends; rather County Defendants' argue that as Plaintiff's reckless disregard of Cheek's Fourteenth Amendment right to proper medical care, i.e., deliberate indifference (Plaintiff's First Cause of Action), causing Cheek's suicide by virtue of an unconstitutional policy or practice (Plaintiff's Second Cause of Action), causing Cheek's suicide as a result of County Defendants' failures to properly hire, train, and supervise (Plaintiff's Third Cause of Action), negligence (Plaintiff's Fourth and Fifth Causes of Action), medical malpractice (Plaintiff's Sixth Cause of Action), and negligent hiring, training, supervision, and retention (Plaintiff's Eighth Cause of Action), Discussion, infra, at 123-144, claims provide the legal predicates for Plaintiff's wrongful death claim and should be dismissed on statute of limitations and inadequate pleading grounds, Plaintiff's Wrongful Death claim is therefore likewise subject to dismissal. See County Defendants' Memorandum of Law (Dkt. 10-5) at 30. County Defendants are correct.

22 Niagara County and Sheriff Filicetti do not contend Plaintiff's Wrongful Death Action is time-barred, see County Defendants' Reply (Dkt. 17-1) at 18, as under N.Y.E.P.T.L. § 5-4.1, such actions are required to be commenced within two-years after the decedent's death, in this case not later than February 27, 2024 (or February 26, 2024), and the Complaint was filed May 25, 2023. Plaintiff's Memorandum of Law (Dkt. 16-2) at 28.

23 Although Plaintiff does not assert Plaintiff also intended to allege a malpractice claim as stated in Plaintiff's Sixth Cause of Action, the court presumes this to be an unintended oversight.

Under New York's Wrongful Death Statute, N.Y.E.P.T.L. § 5-4.1 (“E.P.T.L. § 54.1”), a decedent's distributees are permitted to maintain an action to “recover damages for a wrongful act, negligence or default ....” Thus, as Plaintiff's § 1983 claims based on County Defendants' alleged deliberate indifference to Cheek's suicide risk, and state law negligence and medical malpractice claims provide the legal predicate, i.e., “a wrongful act or negligence,” E.P.T.L. § 5-4.1, necessary to allege a valid wrongful death claim under by E.P.T.L. § 5-4.1 should be dismissed, see, Discussion, supra, at 18-84, 86-119, 123-144, Plaintiff's Wrongful Death Claim against Niagara County, by the same token, also requires dismissal. See Graves v. Brookdale Univ. Hosp. and Med. Ctr, 114 N.Y.S.3d 53, 54 (1^st Dept. 2019) (where plaintiff wrongful death claim was predicated on plaintiff's medical malpractice claim which was time-barred, plaintiff's wrongful death claim was equally subject to dismissal as time-barred); Alexopoulos v. Metro. Transportation Auth., 838 N.Y.S.2d 50, 51 (1^st Dept. 2007) (plaintiff's wrongful death action predicated on defendant's negligence dismissed where evidence failed to show defendant was at fault). Accordingly, Plaintiff's assertion in opposition to County Defendants' contention seeking dismissal of Plaintiff's Seventh Cause of Action is without merit and County Defendants' motion to dismiss this claim against Niagara County should be GRANTED.

B. Sheriff Filicetti.

Sheriff Filicetti's request for dismissal of Plaintiff's wrongful death claim raises the same grounds for dismissal as asserted by Niagara County. See County Defendants' Memorandum of Law (Dkt. 10-5) at 43. Therefore, for the reasons discussed above with regard to Niagara County's request for dismissal of this claim, see Discussion, supra, at 119-21, County Defendants' motion to dismiss Plaintiff's Seventh Cause of Action against Sheriff Filicetti should be GRANTED.

C. Dr. Cervantes.

In support of dismissal of this claim, Dr. Cervantes contends such claim is defectively pleaded for the same reasons asserted by County Defendants, see Discussion, supra, at 119-21, see Dr. Cervantes's Memorandum of Law (Dkt. 11-5) at 10 (“Plaintiff's seventh claim asserted for wrongful death must fail, as the underlying allegations of negligence and professional malpractice are deficient.”) and as time-barred. See id. at 11-14. For the reasons set forth above, see Discussion, supra, at 4354, 95-104, 117-19, 141-44, in regard to Plaintiff's First, Fourth, Sixth and Eighth Causes of Action against Dr. Cervantes, the court finds Plaintiff's Wrongful Death Claim against Dr. Cervantes fails as a matter of law and, as such, should be DISMISSED. As to Dr. Cervantes's contention that Plaintiff's claim is time-barred by § 50-i[1][c], the court finds, for the reason that this issue cannot be raised based on the face of the Amended Complaint, Dr. Cervantes's contention to be beyond the scope of Dr. Cervantes's Rule 12(b)(6) motion. See Discussion, supra, at 102-103. Accordingly, Dr. Cervantes's motion to dismiss Plaintiff's Seventh Cause of Action should be GRANTED.

Plaintiff's Eighth Cause of Action/Plaintiff's Negligent Hiring, Training, Supervision and Retention Claim.

In Plaintiff's Eighth Cause of Action, Plaintiff alleges all Defendants were negligent in the hiring, training, supervision, and retention of Defendants' deputies, officers, and medical professionals assigned to the Jail in respect to their obligation to provide adequate medical assistance to inmates with serious mental health concerns, including those with conditions which Cheek allegedly presented, which failures resulted in Cheek's suicide. Amended Complaint (Dkt. 10-4) ¶¶ 124-31.

A. Niagara County.

In support of County Defendants' motion to dismiss Plaintiff's Eighth Cause of Action against it, Niagara County sets forth three grounds. First, to the extent this claim is based on Niagara County's alleged negligent hiring and retention of Jail employees, the County contends that Plaintiff's Notice of Claim, see Exh. A to Crosby Declaration (Dkt. 10-2), failed to make any reference to such claims and therefore fails to comply with N.Y. Gen. Mun. Law § 50-e[1][a] (“§ 50-e”) (requiring claimants serve a Notice of Claim with a municipality within 90 days after the claim arises as a precondition to suit). County Defendants' Memorandum of Law (Dkt. 10-5) at 27-28. Specifically, Niagara County argues that § 50-e provides that as a precondition to commencing any action against a municipality, a plaintiff is required to serve upon the municipality a notice of claim which must, inter alia, state “the nature of the claim.” Id. (citing caselaw holding that failure to comply with § 50-e requires dismissal of the putative claim). Niagara County therefore contends as Plaintiff failed to mention in the Notice of Claim that Plaintiff was asserting County Defendants were guilty of negligent hiring and retention of Jail employees, such claims are now barred and should be dismissed. Id. Second, Niagara County contends that to the extent Plaintiff's Eighth Cause of Action seeks to impose liability on the County based on its alleged negligence in regard to the hiring, training and supervision of Sheriff Filicetti's deputies and other Sheriff's staff assigned to the Jail, such claims are also subject to dismissal because under New York law the County Sheriff is solely responsible for the hiring, training, and supervision of such Jail personnel, not Niagara County. Id. (citing N.Y. County Law § 652) [2] (sheriff authorized to appoint deputy sheriffs); see also Ball, 2021 WL 5903308, at *3 (“the duty to supervise and train [the] Sheriff's deputies rests with the Sheriff”) (quoting Metcalf, 104 N.Y.S.3d at 816 and citing Mosey, 984 N.Y.S.2d at 710 (holding “the County has no similar duty” to train or supervise deputy sheriffs) (citing Villar, 5 N.Y.S.3d at 748))). Third, Niagara County contends that even if Niagara County had its own employees assigned to the Jail to perform medical services or custodial functions for inmates it is basic New York law that unless such employees are alleged to have acted outside the scope of their employment, a claim against a municipal employer for negligent hiring, training, and supervision of such employees is subject to dismissal. Id. at 28 (citing caselaw). Niagara County also argues that the exception to this requirement, where the employer negligently fails to train an employee, is alleged to have been caused by the employer's gross negligence thereby warranting imposing punitive damages as Plaintiff has requested, see Amended Complaint (Dkt. 10-4) ¶ 133 (“Plaintiffs [sic] claim punitive damages”) at Prayer for Relief, is inapplicable to Plaintiff's claims in the absence of any allegations by Plaintiff to sufficiently establish such gross negligence attributable to Niagara County. County Defendants' Memorandum of Law (Dkt. 10-5) at 28 (citing McKnight v. City of Rochester, N.Y., 2015 WL 1462379, at **3-4 (W.D.N.Y. Mar. 30, 2015) (merely alleging punitive damages without factual allegations to establish gross negligence does not support exception to the rule requiring plaintiff to plead employee tortfeasor acted outside scope of his or her employment to support negligent failure to train claim)).

Even assuming Plaintiff's Eighth Cause of Action alleging Niagara County's negligence in hiring, retention, training and supervision of Defendants' Jail employees is properly pleaded, Niagara County argues such claim is barred under the New York state law that municipal conduct involving the exercise of governmental discretion is immune from suit. See County Defendants' Memorandum of Law (Dkt. 10-5) at 30-31 (citing caselaw). Plaintiff has not responded to this contention. See Plaintiff's Memorandum of Law (Dkt. 10-6) (passim).

Plaintiff opposes dismissal of Plaintiff's claims based on Defendants' negligent hiring and retention of Defendants' employees claim by asserting that Plaintiff's Notice of Claim is sufficient to support Plaintiff's Eighth Cause of Action alleging County Defendants' negligence in hiring and retention of County Defendants' Jail personnel. Plaintiff's Memorandum of Law (Dkt. 16-2) at 24 (citing New York caselaw). Specifically, Plaintiff asserts that a notice of claim complies with § 50-e if the notice provides “‘facts sufficient to enable the [municipality] to investigate'” the claim, and need not describe any “specific causes of action.” Id. at 25 (citing Hargroves v. City of New York, 2014 WL 1271039, at * 5 (E.D.N.Y. Mar. 26, 2014) (“Hargroves”) (internal citations and quotations marks omitted)). Plaintiff also argues that Plaintiff has properly pleaded a claim of negligent supervision, training or retention under New York law. See Plaintiff's Memorandum of Law (Dkt. 16-2) at 23 (quoting Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004) (“Ehrens”) (“To state a claim for negligent supervision or retention under New York law, . . . a plaintiff must show: (1) that the tortfeasor [employer] and the defendant were in an employee-employer relationship, (2) that the employer knew or should have known of the employee's propensity for the conduct which caused the injury prior to the injury's occurrence; and (3) that the tort was committed on the employer's premises or with the employer's chattels.”)). See also Fat Brands, Inc. v. Ramjeet, 75 F.4^th 118, 130 (2d Cir. 2023) (recognizing under New York law that in the absence of an employer-employee relationship, there may be potential liability for a negligent supervision claim based on defendants having “exercised a high degree of control over the principal tortfeasors”). Plaintiff further asserts the Amended Complaint plausibly alleges that Niagara County Sheriff's Deputies Defendants John Doe 1-5, “and possibly Defendant Cervantes,” had an employer-employee relationship with County Defendants and that it was known to County Defendants that Jail employees were “continually failing” to prevent inmate suicides by failing to appropriately treat, and safeguard such other inmates, in addition to Cheek. Plaintiff's Memorandum of Law (Dkt. 16-2) at 24.

Notably, Plaintiff also does not address County Defendants' argument that under New York law as Sheriff Filicetti, not the County, has sole authority to hire, train and supervise Jail employees, particularly his deputy sheriffs, the County cannot be sued for negligence in respect to such hiring, training or supervision, and that Plaintiff is, in any event, required to allege such employees acted outside of their respective scope of employment as a prerequisite to a state law claim of negligent training or supervision. See Plaintiff's Memorandum of Law (Dkt. 16-2) at 23-24. Nor does Plaintiff attempt to rebut County Defendants' contention regarding Plaintiff's request for punitive damages as insufficient to avoid application of the requirement that in order to invoke the punitive damages exception to the prerequisite to a negligent training or supervision claim, that the employee must be shown to have acted beyond the scope of his employment, a plaintiff must put forth allegations of gross negligence, which Plaintiff has failed to do in this case. Id. Such failure to respond to Niagara County's contentions by Plaintiff supports a conclusion that Plaintiff has thereby conceded the validity of County Defendants' arguments with respect to these issues. See Lopez Canas v. Whitaker, 2019 WL 2287789, at *5 (W.D.N.Y. May 29, 2019) (“It is well settled in this Circuit that ‘[a] plaintiff effectively concedes a defendant's arguments by his failure to respond to them,'” (quoting Felske v. Hirschmann, 2012 WL 716632, at *3 (S.D.N.Y. Mar. 1, 2012) (citing cases))). In reply, Niagara County argues that although Plaintiff's Notice of Claim specifically states County Defendants failed, inter alia, “to properly train and monitor their agents, servants and/or employees with respect to the proper handling supervision and monitoring of [Jail] inmates,” absent from the Notice of Claim is any reference to an allegation of Niagara County's negligence with respect to the hiring and retention of County Defendants' Jail employees. County Defendants' Reply (Dkt. 17-1) at 15 (citing cases). Further, Niagara County reiterates its contention that under New York law, Sheriff Filicetti, and not Niagara County, has the sole authority to hire, train and supervise deputy sheriffs and other personnel who may have been assigned to guard Jail inmates thereby excluding Niagara County from such liability as alleged in Plaintiff's Eighth Cause of Action. Id. Alternatively, should the District Judge disagree with the undersigned's conclusion that Plaintiff's failure to address County Defendants' arguments in support of dismissal of this claim has thereby conceded County Defendants' arguments as discussed above, see Discussion, supra, at 123-27, the undersigned addresses the merits of Defendants' contentions. See, Discussion, infra, at 128-31.

As to whether Plaintiff's Notice of Claim sufficiently complied with § 50-e, with regard to Plaintiff's failure to provide notice that Plaintiff intended to assert a claim for negligent hiring and retention as well as for negligent supervision and training which County Defendants concede were stated in Plaintiff's Notice of Claim, see County Defendants' Reply (Dkt. 17-1) at 14-15 (“while the notice of claim demonstrates Plaintiff's intent to pursue negligent supervision and training claims ....”), it is well-settled New York law that “[a] notice of claim is a condition precedent to bringing a tort claim against a municipality.” O'Brien v. City of Syracuse, 429 N.E.2d 1158, 1160 (N.Y. 1981) (citing N.Y. Gen. Mun. Law § 50-e[1][a]). Further, New York State's notice of claim requirements apply to state law claims against New York municipalities regardless of whether those claims were brought in state or federal court. Hardy v. New York City Health & Hosps. Corp., 164 F.3d 789, 793 (2d Cir. 1999). Notice of claim requirements “are construed strictly by New York state courts,” A.T. & T. v. New York City Dep't of Human Res., 736 F.Supp. 496, 499 (S.D.N.Y. 1990), and “[f]ailure to comply with these requirements may result in a dismissal for failure to state a cause of action.” Brown v. Metro. Transp. Auth., 717 F.Supp. 257, 259 (S.D.N.Y. 1989).

“Merely providing notice of the occurrence is not adequate to constitute notice of a particular claim.” Fincher v. County of Westchester, 979 F.Supp. 989, 1002-03 (S.D.N.Y. 1997) (citing Brown v. New York City Transit Auth., 568 N.Y.S.2d 54, 56 (1^st Dept. 1991)). “Among other things, the notice must state ‘the time when, the place where and the manner in which the claims arose.'” Id. (citing N.Y. Gen. Mun. Law § 50-e[2]). “The test of the notice's sufficiency is whether it includes information sufficient to enable the city to investigate the claim.” Id. (citing, inter alia, Rivero v. City of New York, 48 N.E.2d 486, 488 (N.Y. 1943)). “Circumstances must determine in each case whether the notice served is sufficient.” Schwartz v. City of New York, 165 N.E. 517, 517-18 (N.Y. 1929).

Nevertheless, “[t]he fact that a cause of action not mentioned in the notice of claim arises out of the same incident as enumerated claims ‘is not pivotal; rather, the nature of the claim and the theory of liability are determinative.'” Fincher, 979 F.Supp. at 1003 (quoting Wanczowski v. City of New York, 588 N.Y.S.2d 1011, 1011 (1^st Dept. 1992) (further citation omitted)). “Any cause of action or theory of liability not directly or indirectly mentioned in the notice of claim may not be included in a subsequent lawsuit.” Id. (citing Jewell v. City of New York, 1995 WL 86432, at * 1 (S.D.N.Y. Mar. 1, 1995) (further citations omitted)). In the instant case, the Notice of Claim Plaintiff served on County Defendants regarding the Plaintiff's claim for negligent hiring, training, supervision and retention of employees under New York law is deficient as the Notice of Claim is devoid of any reference to a potential claim or theory of liability of negligent hiring or retention; instead, the Notice of Claim explicitly accuses County Defendants of negligence in failing to properly train and “monitor” their respective agents and employees in the proper handling, supervision and monitoring of inmates without mention of Defendants' alleged negligent hiring and retention of Jail employees. Crosby Declaration (Dkt. 10-2) Exh. A at ¶ 5.

New York law requires the notice set forth facts that suggest “a claim for negligent hiring [and retention]” was intended to be asserted by Plaintiff. See Hargroves, 2014 WL 1271024, at *6 (citing New York cases). Here, the Notice of Claim asserts County Defendants were negligent in failing to supervise Cheek, provide Cheek with proper medical care as well as by failing to have comprehensive policies and procedures to prevent the inmate suicides as Plaintiff alleges and to properly train Defendant County and Sheriff Filicetti employees with respect to the proper handling, supervision and monitoring of the inmates. See (Dkt. 10-2) ¶ 5. Neither of these asserted grounds for a future lawsuit, such as Plaintiff's Fourth, Fifth and Sixth Causes of Action based on County Defendants' alleged negligence in failing to respond to Cheek's alleged suicidal inclinations, could reasonably prompt Defendants to investigate a potential claim based on an alleged negligent failure to hire or retain any Jail employees who interacted with Cheek. See Fincher, 979 F.Supp. at 1003. Moreover, such allegations fail to address the fact that a negligent hiring and retention claim would require County Defendants to investigate circumstances pertaining to the suitability of prospective Jail employees which likely took place well prior to Cheek's suicide, i.e., at the time when the alleged offending Defendants' employees were hired, see Hargroves, 2014 WL 1271024, at *4 (noting that plaintiffs' notice of claim referred to a timeframe well-after the time period, i.e., the date of plaintiffs' false arrest, when the defendants were alleged to have acted negligently with respect to hiring any particular employee allegedly involved in plaintiff's false arrest).

Further, in contrast to Hargroves, Plaintiff's Notice of Claim fails to, expressly or indirectly, assert that the claim includes County Defendants' negligent hiring and retention of any named employees, i.e., the five John Doe Defendants, that Defendants knew had propensities to deprive inmates of their constitutional rights, or that Defendants failed to investigate such employees' background which would have revealed the employees were unfit to serve as Jail guards. See Hargroves, 2014 WL 1271039, at * 6 (noting distinction between co-plaintiff Allen's notice of claim which particularized that defendants should have been aware of propensity of arresting officer to act improperly as police officer and the absence of such allegation in other Hargroves plaintiffs' notice). Thus, in this case, Plaintiff's Notice of Claim fails to provide County Defendants with any reason to investigate the potential for liability based on Defendants' negligence in regard to the hiring or retention of Defendants' Jail employees. Accordingly, the court finds Plaintiff's Notice of Claim fails to, directly or indirectly, Fincher, 979 F.Supp. at 1003, provide sufficient notice to County Defendants of Plaintiff's potential negligent hiring and retention claims based on such “theory of liability,” Fincher, 979 F.Supp. at 1003, arising from Cheek's suicide and requires the Eighth Cause of Action for negligent hiring and retention be DISMISSED and that County Defendants' motion on this issue be GRANTED. See O'Brien, 429 N.E.2d at 1160 (dismissing complaint against municipality for failure to serve sufficient notice of claim).

With respect to Niagara County's contention that Plaintiff has failed to allege Defendants' employees acted outside the scope of their employment, a prerequisite to a negligent training, supervision or retention claim, see Velez v. City of New York, 730 F.3d 128, 136 (2d Cir. 2013) (“To maintain a claim against a municipal employer for the ‘negligent hiring, training, and retention' of [an employee] tortfeasor under New York law, a plaintiff must show that the employee acted ‘outside the scope of her employment.'”); Bryant v. Monroe County, 2022 WL 119184, at *14 (W.D.N.Y. Jan. 12, 2022) (dismissing claims for negligent hiring, retention, training or supervision when defendant municipal employees were acting within the scope of their employment), the court finds Niagara County's contention to have merit. This rule is equally applicable to a county sheriff despite the fact the sheriff cannot be held liable for the actions of his deputies based upon respondeat superior. See Ortiz v. Orleans County, 2022 WL 1242486, at *5 (W.D.N.Y. Mar. 15, 2022) (plaintiff's contention that because sheriff not liable for action of tortfeasor deputy sheriff does not waive state law requirement of showing employee acted outside scope of employment as prerequisite to negligent training claim), report and recommendation adopted, 2022 WL 1241704 (W.D.N.Y. Apr. 26, 2022); see also Ben v. United States, 160 F.Supp.3d 460, 477 (N.D.N.Y. 2016) (“. . . the only time a claim for negligent retention, training or supervision makes sense is when an employee tortiously injures someone while acting outside the scope of his employment, and the injured party cannot hold the employer vicariously liable in respondeat superior for the employee's tort ....”). Here, a fair reading of the Amended

Complaint fails to reveal any allegations by Plaintiff that plausibly allege that any of the John Doe Defendants, or other unnamed employees of County Defendants and PrimeCare, acted outside of the scope of their employment at the Jail when Plaintiff alleges such Defendant employees failed to adequately monitor or provide Cheek with proper medical care so as to prevent his suicide. In fact, Plaintiff's pertinent allegations establish such employees were acting within the scope of their employment in failing to provide Cheek with adequate care as Plaintiff alleges. See, e.g., Amended Complaint (Dkt. 16-4) ¶ 14 (“the [John Doe] Officers were persons engaged in the custody, care, safekeeping, and detention of Plaintiff[sic] Decedent Leroy Cheek, III”). Such allegation does not support any plausible inference that the officers' “engage[ment]” resulted from conduct outside the scope of their employment. Nor do any of Plaintiff's allegations in support of the Eighth Cause of Action factually allude to blatant misconduct by County Defendants' employees as Jail attendants that could reasonably support an inference that their alleged failures to properly attend to Cheek's mental health needs were outside the scope of their employment. See Amended Complaint (Dkt. 10-4) ¶¶ 123131.

New York courts have held that an employee's conduct is within the scope of his employment “so long as he is discharging his duties, ‘no matter how irregularly, or with what disregard of instructions.'” Ierardi v. Sisco, 119 F.3d 183, 188 (2d Cir. 1997) (quoting Cepeda v. Coughlin, 513 N.Y.S.2d 528, 530 (2d Dept. 1987) (quoting Riviello v. Waldron, 391 N.E.2d 1278, 1281 (N.Y. 1979))). Here, Plaintiff's allegations clearly assert that County Defendants' employees were alleged to have been discharging their respective duties as Jail guards and were not acting “irregularly” or in “disregard of instructions” provided by Defendants. See Cepeda, 513 N.Y.S.2d at 530 (finding prison guards acted within the scope of their employment in their use of force on inmate plaintiff in exercising custody and control of inmates for purposes of immunity from state law suits against corrections officers provided by N.Y. Corrections Law § 24). Moreover, while Plaintiff asserts that County Defendants' employees were continually failing to prevent other inmates' suicides, referring to Plaintiff's allegation of five prior inmate suicides at the Jail over a thirteen-year period, i.e., 2008-2021, see Amended Complaint (Dkt. 10-4) ¶ 33, presumably in an attempt to demonstrate such Defendant employees, including the John Doe Defendants, had a propensity to violate the Fourteenth Amendment rights of pretrial detainees, see Ehrens, 385 F.3d at 235, this assertion is without merit for the reason that Plaintiff's allegations provide no facts identifying any of the Defendant John Doe Deputy Sheriffs or other Jail employees Plaintiff accuses of such ‘propensity,' based on an alleged knowledge of any of the prior suicides at the Jail, nor does Plaintiff allege that any of these unnamed Defendants were in fact employed at the Jail when any of the alleged suicides occurred between approximately 2008 and 2021. See Roice v. County of Fulton, 803 Fed.Appx. 429, 433 (2d Cir. 2020) (affirming district court's dismissal on summary judgment of plaintiff's state law clam for negligent supervision or retention where pretrial detainee failed to proffer evidence that employee who provided care to plaintiff had propensity to being deliberately indifferent to the needs of detainees). Thus, Plaintiff's failure to plausibly allege Niagara County employees, in failing to adequately respond to Cheek's mental health condition and need for close monitoring acted outside the scope of their employment, supports the recommendation that Plaintiff's Eighth Cause of Action against Niagara County should be DISMISSED.

Turning to Niagara County's contention that Plaintiff's Eighth Cause of Action against Niagara County is barred under state law governmental immunity, preliminarily, the court considers whether assertions of a governmental immunity as an affirmative defense regarding state law claims as Plaintiff has asserted in this case can be considered on Defendants' motion pursuant to Rule 12(b)(6). See Discussion, supra, 91-92 (addressing whether under Second Circuit caselaw an affirmative defense is cognizable on a Rule 12(b)(6) motion). Provided the merits of such a defense are ascertainable from the face of the complaint the court may consider the defense. See Simmons, 2021 WL 5023354, at *1 (addressing defendant's statute of limitations affirmative defense on defendants' Rule 12(b)(6) motion); Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010) (court determined, on Rule 12(b)(6) motion, merits of defendants' qualified immunity defense after drawing all reasonable inferences from the record in plaintiff's favor). Here, the merits of Niagara County's governmental immunity defense asserted to defeat Plaintiff's Eighth Cause of Action against Niagara County are ascertainable from the face of the Amended Complaint. Specifically, Plaintiff alleges in support of Plaintiff's Eighth Cause of Action that “Defendants [ sic ] failure to properly hire, supervise and train deputies and/or officers and/or medical professionals . . . resulted [in Cheek's] suicide.” See Amended Complaint (Dkt. 10-4) at ¶ 125. Based on such allegation, it is apparent that Plaintiff's claim, as alleged, necessarily implies that Niagara County's decision-making with respect to such hiring, supervision and training of its Jail staff involved the exercise of discretion by governmental officials acting on behalf of the County and thus coming within the zone of the state law governmental decision-making immunity as discussed below. See, c.f. Abate v. County of Erie, 151 N.Y.S.3d 291, 293 (4^th Dept. 2021) (finding question of fact precluded barring plaintiff's claim based on discretionary immunity) (citing Coleson v. City of New York, 24 N.E.3d 1074, 1079 (N.Y. 2014) (same)). Plaintiff points to no questions of fact with regard to County Defendants' immunity defense. As this issue may therefore be resolved based on the face of the Amended Complaint, it is properly addressed on County Defendants' motion to dismiss. Accordingly, the court addresses Niagara County's governmental immunity defense.

It is established New York law that as a result of the state's retention of immunity for “governmental actions requiring expert judgment or the exercise of discretion,” Arteaga v. State, 527 N.E.2d 1194, 1196 (N.Y. 1988) “governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of governmental functions.” Valdez v. City of New York, 960 N.E.2d 356, 361 (N.Y. 2011). Discretionary acts within the scope of governmental immunity include acts that “involve the exercise of reasoned judgment which could typically produce different acceptable results.” Tango v. Tulevech, 459 N.E.2d 182, 186 (N.Y. 1983). Thus, provided the decision to hire a municipal employee “resulted from the exercise of [municipal] discretion,” Mon v. City of New York, 579 N.E.2d 689, 692-93 (N.Y. 1991), a decision to hire a municipal employee is within the scope of governmental immunity. Mon, 579 N.E.2d at 694. Further, in addition to a claim of negligent hiring, claims of negligent training and supervision have been held to also be within the scope of such immunity. See Maldovan v. County of Erie, 134 N.Y.S.3d 594, 598 (4^th Dept. 2020) (action against sheriff for negligent hiring, training and supervision of his deputies in connection with decedent's death entitled sheriff to governmental function immunity (citing Mon, 579 N.E.2d at 694)). Thus, even assuming, for the sake of analysis, Niagara County hired Jail employees, Plaintiff's Eighth Cause of Action against Niagara County should be found to be barred by state law governmental immunity. Therefore, fairly read, the Amended Complaint fails to allege a plausible negligent hire, retention, supervision or training claim against Niagara County and County Defendants' motion to dismiss Plaintiff's Eighth Cause of Action against Niagara County should be GRANTED. See Wright v. State of New York, 145 N.Y.S.3d 156, 160 (3d Dept. 2021) (sustaining governmental immunity defense against plaintiff's motion to strike).

B. Sheriff Filicetti.

In support of County Defendants' motion to dismiss Plaintiff's Eighth Cause of Action against Sheriff Filicetti, Sheriff Filicetti contends such claims, as with Plaintiff's Fourth, Fifth and Sixth Causes of Action, is also time-barred by operation of the one-year statute of limitations applicable to all actions against a county sheriff. See N.Y.C.P.L.R. § 215[1] (one-year period of limitation applicable to actions against a county sheriff for liability allegedly incurred by doing an official act or by omission of an official duty); see also Duryea v. County of Livingston, 2007 WL 1232228, at *3 (W.D.N.Y. Apr. 26, 2007) (plaintiff's claims against county sheriff for negligent hiring, training, and supervision, subject to one year statute of limitation for actions against sheriff under § 215[1]). Here, the one-year limitations period expired one year following Cheek's suicide on either February 26 or February 27, 2022, or February 27 or February 28, 2023, whereas this action was commenced by the filing of the Complaint on May 25, 2023, or approximately three months after the applicable one-year limitations period provided by § 215[1] expired. Sheriff Filicetti further argues that Plaintiff's Eighth Cause of Action is fatally flawed based on its failure to identify the employees negligently trained by Sheriff Filicetti as Plaintiff alleges, County Defendants' Memorandum of Law (Dkt. 10-5) at 42-43 (citing caselaw), and therefore is insufficient as failing to provide any factual support to an allegation, required by New York law, that Sheriff Filicetti as an “employer knew or should have known of the [tort-feasor] employee's propensity for the conduct which caused the injury.” Shu Yuan Huang v. St. John's Evangelical Lutheran Church, 12 N.Y.S.3d 232, 233 (2d Dept. 2015) (internal quotation marks and citations omitted). A careful review of the Amended Complaint indicates Plaintiff has failed to allege this element of a failure to train claim. In opposition, Plaintiff asserts that the one-year limitation period otherwise applicable to Plaintiff's claim against Sheriff Filicetti was tolled by operation of N.Y.C.P.L.R. § 208(a) (“§ 208(a)”), which permits tolling of a limitations period for claims with a limitations period of less than three years for the period of a putative plaintiff's disability, in this case until Plaintiff's appointment in June 2023 as representative of Cheek's estate or Cheek's minor distributees reaching their respective majorities. See Plaintiff's Memorandum of Law (Dkt. 16-2) at 28 (citing Hernandez, 585 N.E.2d at 826.

As discussed, Discussion, supra, at 114-15, in connection with Plaintiff's Sixth Cause of Action alleging Defendants' malpractice, there is no merit to Plaintiff's assertion that the tolling provision of § 208(a) is applicable to Plaintiff's Eighth Cause of Action as § 208(a) has been limited to wrongful death actions. Therefore, § 215[1] applies fully to Plaintiff's Eighth Cause of Action against Sheriff Filicetti. Moreover, Plaintiff fails to respond to Sheriff Filicetti's contention, County Defendants' Memorandum of Law (Dkt. 10-5) at 42, pointing to Plaintiff's failure to identify a factual allegation regarding any alleged propensity on the part of any of the John Doe Deputy Sheriffs or any other Jail employees of the Sheriff to deprive Jail inmates having serious mental health needs of adequate care and monitoring. See Plaintiff's Memorandum of Law (Dkt. 16-2) at 27-28. In Reply, Sheriff Filicetti argues Plaintiff's claim fails, as Niagara County also argued, see County Defendants' Memorandum of Law (Dkt. 10-5) at 28, for lack of any factual allegation that any alleged tort-feasor Jail employees, particularly the John Doe Defendants, in failing to provide Jail inmates with possible mental health problems with adequate care and attention, acted outside the scope of their employment, a precondition to a claim of negligent hiring, retention, supervision or training. County Defendants' Reply (Dkt. 17-1) at 20-21 (citing caselaw). See Bryant, 2022 WL 119184, at *14 (plaintiffs' “claim of negligent hiring, retention, training or supervision, is incompatible with the Complaint's unambiguous factual assertion that the defendant RPD officers were acting within the scope of their employment at all relevant times”); see also Ortiz, 2022 WL 1242486, at *5, report and recommendation adopted, 2022 WL 1241704 (W.D.N.Y. 2022) (county sheriff not liable for negligent training and supervision claim based on plaintiff's failure to allege sheriff's employees acted outside the scope of their employment); Ben, 160 F.Supp.3d at 477 (“. . . the only time a claim for negligent retention, training or supervision makes sense is when an employee tortiously injures someone while acting outside the scope of his employment, and the injured party cannot hold the employer vicariously liable in respondeat superior for the employee's tort ....”).

Here, Plaintiff does not allege that Sheriff Filicetti's alleged unidentified tortfeasor employees acted outside the scope of their employment at the Jail with respect to Cheek's mental health and monitoring needs; in fact, the Amended Complaint should fairly be read to allege that they did not. See Amended Complaint (Dkt. 10-4) ¶¶ 13, 14 (“The [John Doe] Officers were persons engaged in the custody, care, safekeeping, and detention of . . . Cheek . . .”)). Nor do any of Plaintiff's allegations in support of the Eighth Cause of Action against Sheriff Filicetti allude to misconduct by Sheriff Filicetti's employees as Jail attendants that could plausibly imply that any alleged failures on the part of such employees to properly attend to Cheek's mental health needs occurred outside the scope of their employment at the Jail. See Amended Complaint (Dkt. 10-4) ¶¶ 123-131; see also Ierardi, 119 F.3d at 188 (employee's conduct is within the scope of his employment “so long as he is discharging his duties, ‘no matter how irregularly, or with what disregard of instructions.'” (quoting Cepeda, 513 N.Y.S.2d at 530 (quoting Riviello, 391 N.E.2d at 1281))). Moreover, Plaintiff fails to contest Sheriff Filicetti's other contention that Plaintiff's claim is subject to dismissal because it does not allege the specific propensities of the Sheriff's employees who, because of a lack of proper hiring decisions and training on the part of Sheriff Filicetti, had a propensity to cause harm to Jail inmates through neglect of the mental health needs of such inmates. See Defendants' Reply (Dkt. 17-1) at 21 (citing Kenneth R. v. Roman Catholic Diocese of Brooklyn, 654 N.Y.S.2d 791, 793 (2d Dept. 1997) (“[A] necessary element of such causes of action [for negligent hiring, supervision and retention] is that the employer knew or should have known of the employee's propensity for the conduct which caused the injury”)); see also Rich v. Fox News Network, LLC, 939 F.3d 112, 129 (2d Cir. 2019) (quoting Ehrens, 385 F.3d at 235). Further, Plaintiff's allegation that “Defendants knew and/or should have known that failure to adequately train, supervise and monitor the conduct of [Jail] Officers and Personnel would likely result in unreasonable danger to inmates,” Amended Complaint (Dkt. 10-4) ¶ 129, is notably silent with regard to this essential element of a negligent hiring, retention, or supervision claim.

Even assuming Plaintiff's Eighth Cause of Action against Sheriff Filicetti has been properly pleaded, Sheriff Filicetti alternatively contends that Plaintiff's Eighth Cause of Action is barred by the state law governmental immunity. See County Defendants' Memorandum of Law (Dkt. 10-5) at 45 (adopting Defendant Niagara County's contention asserting such immunity described at County Defendants' Memorandum of Law (Dkt. 10-5) at 30-31). For the reasons discussed in regard to Niagara County's asserted immunity bar to Plaintiff's Eighth Cause of Action as discussed, see Discussion, supra, at 134-37, Plaintiff's claim against Sheriff Filicetti's should also be DISMISSED based on such immunity. Accordingly, Defendant County's motion to dismiss Plaintiff's Eighth Cause of Action against Sheriff Filicetti should be GRANTED.

C. Dr. Cervantes.

In support of Dr. Cervantes's motion to dismiss Plaintiff's Eighth Cause of Action, Dr. Cervantes contends that this claim is time-barred pursuant to N.Y. Gen. Mun. Law § 50-i[1] (“§ 50-i[1][c]”), which requires any claim for negligence and medical malpractice against a physician or other medical service providing jail inmates with medical services as provided by N.Y. Gen. Mun. Law § 50-d (“§ 50-d”) to be brought pursuant to § 50-i[1][c]. See Dr. Cervantes's Memorandum of Law (Dkt. 11-5) at 11-14. Additionally, Dr. Cervantes contends Plaintiff's allegations fail to plausibly allege that Dr. Cervantes is responsible for hiring, training, or supervision of any Jail staff. See Dr. Cervantes's Memorandum of Law (Dkt. 11-5) at 10. Under § 50-d, a claim against a physician who provides medical treatment, without cost to the recipient, to an inmate of a public institution, in this case, the Niagara County Jail, maintained by Niagara County as a municipal corporation, must be commenced within one-year and 90 days following its accrual. See N.Y. Gen. Mun. Law § 50-i[1][c]. According to Dr. Cervantes, the one- year plus 90 day limitations period required by § 50-i[1][c], as applicable to Dr. Cervantes's treatment of Cheek pursuant to § 50-d, expired on May 22, 2023, whereas the Complaint was filed May 25, 2023. Dr. Cervantes's Memorandum of Law (Dkt. 115) at 11-13. Further, Dr. Cervantes argues that the continuous treatment tolling provision of N.Y.C.P.L.R. § 214-a (“§ 214-a), which provides that in a medical malpractice case, for which a two-year and six months limitations period is applicable, running from the date of the act, omission or failure complained of or the date of the last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure is inapplicable to Plaintiff's claim based on Dr. Cervantes's assertion that she did not provide Cheek with any “continuous treatment for the same illness” after February 21, 2022. Id. (referencing Cervantes Affidavit (Dkt. 11-4) ¶¶ 6, 7). See Dr. Cervantes's Memorandum of Law (Dkt. 11-5) at 11-13.

According to Dr. Cervantes, based on her affidavit, see Cervantes's Affidavit, Exh. 3 to Dr. Cervantes's Motion to Dismiss (Dkt. 11-4) ¶ 6, February 2, 2022, the date Dr. Cervantes last reviewed Cheek's medical treatment chart, was the last date Dr. Cervantes could conceivably have been considered to have treated Cheek as thereafter, commencing February 21, 2022, Cheek was, as Dr. Cervantes avers, under the care of a different health care provider, N.P. Paula Dillman, presumably also employed like Dr. Cervantes by PrimeCare. See Dr. Cervantes's Memorandum of Law (Dkt. 11-5) at 12 (referencing Cervantes Affidavit (Dkt. 11-4) ¶ 7). By this scenario, the accrual date for a malpractice claim against Dr. Cervantes was, at the latest, February 21, 2022 which results in an expiration date under § 50-i[1][c] of May 22, 2023 or one- year and 90-days after February 21, 2022. Thus, according to Dr. Cervantes, with the Complaint having been filed May 25, 2023, such claim is time-barred by three days. Dr. Cervantes's Memorandum of Law (Dkt. 11-4) at 11, 13. Plaintiff opposes dismissal relying on the tolling of § 214-a based on the asserted applicability of the continuous treatment tolling which would result in the accrual date of February 26 or February 27, 2022 when Cheek is alleged to have died by suicide. Plaintiff's Memorandum of Law (Dkt. 16-2) at 27-28. However, as discussed in connection with Plaintiff's Fourth Cause of Action against Sheriff Filicetti and Dr. Cervantes, the court has determined that insofar as the Defendants asserted a statute of limitations affirmative defense that cannot be addressed on a Rule 12(b)(6) motion unless such defenses are apparent on the face of the Complaint, see Discussion, supra, at 90-92, 102-103, Dr. Cervantes's contention asserting that Plaintiff's claim is time-barred under § 50-i[1][c] cannot be determined on the face of the Amended Complaint and thus is not cognizable on Dr. Cervantes's Rule 12(b)(6) motion. Moreover, the undersigned declines to consider Dr. Cervantes's' Affidavit in connection with the instant Rule 12(b)(6) motion. See Discussion, supra, at 45-46.

Notwithstanding the court's determination that Dr. Cervantes's defense based on §§ 50-d and 50-i[1][c] is not cognizable on Dr. Cervantes's Rule 12(b)(6) motion to dismiss, as discussed above, the court nevertheless finds Plaintiff has failed to plausibly allege a viable claim of failure to properly hire, retain, train and supervise under New York law against Dr. Cervantes. Specifically, nowhere in Plaintiff's Eighth Cause of Action against Dr. Cervantes does Plaintiff allege any factual basis to support that Dr. Cervantes, as a PrimeCare employee, see Amended Complaint (Dkt. 10-4) ¶ 21, had any authority or responsibility to “properly hire, retain, supervise, and train deputies, and/or officers and/or medical professionals” who had contact with Cheek and other Jail inmates in need of medical services as Plaintiff alleges in support of Plaintiff's Eighth Cause of Action, see Amended Complaint (Dkt. 10-4) ¶ 123. Thus, Plaintiff has failed to sufficiently allege that Dr. Cervantes was in an employer-employee relationship with any specific Niagara County, Sheriff Filicetti or PrimeCare employees, a required element for this claim under New York law, see Ehrens, 385 F.3d at 235 (stating required three elements for a negligent supervision and retention claim under New York law including that the defendant must be in an employer-employee relationship with the employeetortfeasor). Nor does Plaintiff allege that Dr. Cervantes exercised a “high degree of control” over an alleged tortfeasor-employee, see Fat Brands, Inc., 75 F.4^th at 130 (recognizing that New York law includes, in the absence of an employer-employee relationship, that a defendant's liability for negligent supervision may be based on a defendant's having “exercised a high degree of control over the principal tortfeasor[ ]”). Neither does Plaintiff allege Dr. Cervantes had any awareness that any such alleged employee-tortfeasor had a propensity to engage in the wrongful conduct which caused the alleged injury to Cheek prior to the injury's occurrence, an additional required element for such claim. See Ehrens, 385 F.3d at 235. See Iqbal, 556 U.S. at 678 (“To survive a motion to dismiss, a complaint must contain sufficient factual matters, accepted as true, to ‘state a claim to relief that is plausible on its face.'”) (quoting Twombly, 550 U.S. at 580). Accordingly, based on these deficiencies, Plaintiff's Eighth Cause of Action against Dr. Cervantes should be DISMISSED and Dr. Cervantes's motion to dismiss such claim should be GRANTED.

Dismissal With or Without Prejudice.

“[T]he federal pleading standard applies to a motion to dismiss filed after an action has been removed.'” Power Authority of New York ex rel. Solar Liberty Energy Systems, Inc. v. Advanced Energy Industries, Inc., 2020 WL 5995186, at * 9 (W.D.N.Y. Oct. 9, 2020) (“Power Authority") (quoting Piechowicz v. Lancaster Cent. Sch. Dist., 2019 WL 6463402, at *2 (W.D.N.Y. Dec. 2, 2019) (citing Fed.R.Civ.P. 81(c)(1))). Relevantly, the Federal Rules of Civil Procedure provide that the federal “rules apply to a civil action after it is removed from a state court.” Fed.R.Civ.P. 81(c)(1)). Further, “[after removal, repleading is unnecessary unless the court orders it.” Fed.R.Civ.P. 81(c)(2) (italics added). As such, “Rule 81 implicitly acknowledges that there are circumstances in which a state court complaint must be repleaded in federal court—for example, when a defendant has successfully argued in a motion to dismiss that the complaint does not meet federal pleading requirements.” Power Authority, 2020 WL 5995186, at * 9. Nevertheless, the instant Amended Complaint was drafted for use in state court where it was not subject, when filed, to federal pleading requirements, including those articulated in Twombly and Iqbal, such that dismissal should be without prejudice and, to the extent not futile with leave to replead. See Johnson v. Tyson Foods, Inc., 2023 WL 2645553, at *2 (5^th Cir. Mar. 27, 2024 (unreported) (reviewing pursuant to Iqbal, on a Rule 12(b)(6) motion to dismiss, the sufficiency of a complaint filed in and removed from Texas state court, which applies a more lenient pleadings standard than the federal standard); Faulkner v. ADT Security Services, Inc., 706 F.3d 1017, 1020-21 (9^th Cir. 2013) (remanding to district court action, originally filed in state court and removed to federal court based on diversity jurisdiction, to permit district court to consider allowing the plaintiff to amend the pleadings in a manner satisfying the federal pleading standards set forth in Iqbal and Twombly). See also Urban v. Bassett, 2022 WL 1667377, at *2 (W.D.N.Y. Apr. 18, 2022) (recommending complaint removed from state court should be dismissed “for failing to comply with the requirements of Twombly and Iqbal,” but allowing leave to replead), report and recommendation adopted, 2022 WL 1666980 (W.D.N.Y. May 25, 2022). See also Power Authority, 2020 WL 5995186, at ** 9-10 (dismissing for failure to state a claim under federal pleading requirements cause of action asserted pursuant to New York False Claims Act, N.Y. State Fin. Law § 189(1)(a)-(b), but without prejudice and with leave to replead given action originally was filed in state court and removed to federal district court). Upon repleading, however, Plaintiff's attorney should be especially mindful of the deficiencies of the dismissed claims, particularly with regard to the federal pleading requirements set forth in Twombly and Iqbal. See Urban, 2022 WL 1667377, at * 3 (observing existing Second Circuit caselaw raised a question as to whether the plaintiff could assert a viable claim). Accordingly, as the court has found Plaintiff's First, Second, and Third Causes of Action should be dismissed based in-part on Plaintiff's failure to plead non-conclusory allegations, should the District Judge agree with such recommendation, dismissal should be without prejudice to repleading.

As to Plaintiff's state law claims, because Plaintiff's Fourth, Fifth, and Sixth Causes of Action are insufficiently pleaded as against Defendant Niagara County, the dismissal of such causes of action should be without prejudice and with leave to replead. As regards Sheriff Filicetti and the John Doe Defendants, these same causes of action should be dismissed with prejudice based on statute of limitations grounds. See Meyer v. Seidel, 89 F.4^th 117, 130 (2d Cir. 2023) (affirming district court's dismissal with prejudice claims that are time-barred). The Seventh Cause of Action for wrongful death asserted against all Defendants should be dismissed without prejudice and with leave to replead subject to Plaintiff's ability to sufficiently replead a predicate federal or state law claim consistent with the foregoing discussion. The Eighth Cause of Action should be dismissed with prejudice and without leave to replead against Sheriff Filicetti based on statute of limitations grounds, Meyer, 89 F.4^th at 130, and against Sheriff Filicetti and Niagara County based on governmental immunity grounds. Valdez, 960 N.E.2d at 364 (dismissal with prejudice of negligence claims based on governmental function immunity). As regards Dr. Cervantes, the Fourth, Sixth, Seventh, and Eighth Causes of Action should be dismissed without prejudice and with leave to replead provided Plaintiff can plead sufficient allegations consistent with the foregoing analysis of the grounds for dismissal of those claims against Dr. Cervantes.

Order to Show Cause.

In response to the OTSC why the action should not be dismissed against the five John Doe Defendants (“the John Does”) for failure to serve the John Does as required by Fed.R.Civ.P. 4(m) (“Rule 4(m)”), Plaintiff asserts that proper service of the summons in this action on the John Does was effected on July 24, 2023 prior to removal on August 22, 2023, as permitted under N.Y.C.P.L.R. § 308 (“§ 308”), Penberthy Declaration re: Dismissal of John Doe Defendants (Dkt. 22) ¶ 7. According to Exhibit A to Penberthy Declaration (Dkt. 16) (“Exh. A”) (“Affidavit of Service”), the summons to which Plaintiff refers was served along with a copy of the Amended Complaint pursuant to N.Y.C.P.L.R. § 308[2], which authorizes service upon an individual defendant by delivering a copy of the summons to a person of suitable age and discretion at the person to be served's place of business, on August 21, 2023, in this case on one Laura Moll, a legal secretary at the Niagara County Jail in Lockport, New York. See Affidavit of Service, Exh. A to Penberthy Declaration at 1. The Affidavit of Service also states Ms. Moll was an “Authorized Agent.” Id. Plaintiff therefore contends that service was properly effected on this case pursuant to Rule 4(e)(2) (allowing service in compliance with state law of the state in which the relevant district court is located, in this case, New York state) and Rule 4(e)(2)(C) (permitting service upon an agent authorized by appointment by law to receive service of process). See Penberthy Declaration re: Dismissal of John Doe Defendants (Dkt. 22) ¶ 5; Plaintiff's Memorandum of Law re: Dismissal of John Doe Defendants (Dkt. 22-1) at 4. Plaintiff further contends that federal courts permit John Doe pleadings to afford plaintiffs in § 1983 actions an opportunity to ascertain the identity of such John Doe defendants. Plaintiff's Memorandum of Law re: Dismissal of John Doe Defendants (Dkt. 22-1) at 3 (citing Davis v. Kelly, 160 F.3d 917, 921) (2d Cir. 1998) (“Davis”); Cole v. Artuz, 2000 WL 760749 at *6 (S.D.N.Y. June 12, 2000) (“Cole”) and Cruz v. City of New York, 232 F.Supp.3d 438, 448 (S.D.N.Y. 2017) (”Cruz”)). Plaintiff also asserts Plaintiff's use of John Doe defendants is permitted by N.Y.C.P.L.R. § 1024 which permits an action to be maintained against an unnamed party in a form that fairly apprises the unnamed party that he or she is the intended defendant (“§ 1024”). Id. at 4. Plaintiff therefore contends the dismissal of the Amended Complaint against the John Doe Defendants is not warranted, id.; alternatively, Plaintiff requests the court grant, pursuant to Rule 4(m) a brief period within which Plaintiff may conduct discovery to identify and serve the John Doe Defendants. Penberthy Declaration re: Dismissal of John Doe Defendants (Dkt. 22) ¶ 11.

In support of dismissal of the action against the John Doe Defendants for lack of proper and timely service pursuant to Rule 4(m), County Defendants contend that Plaintiff failed to (1) identify and serve the John Doe Defendants within 120-days after filing the Amended Complaint as required by N.Y.C.P.L.R. 306-b or within 90-days after removal as required by Rule 4(m), see County Defendants' Memorandum of Law re: Dismissal of John Doe Defendants (Dkt. 23-1) at 7-8, (2) comply with the requirements for reliance on § 1024, and (3) provide any justification, i.e., for good cause, to warrant the court exercise its discretion to grant Plaintiff an extension of time within which to identify and serve the John Doe Defendants. See Id. at 6-7; 10-12. Finally, County Defendants contend that Plaintiff's Fourth (Negligent Screening), Sixth (Medical Malpractice), and Eighth (Negligent Hiring, Training, Supervision and Retention) claims against the Doe Defendants were time-barred when the action was commenced on May 25, 2023 and, as such, the Doe Defendants should be dismissed regardless of Plaintiff's failure to properly and timely serve the John Doe Defendants. Crosby Declaration (Dkt. 23) at ¶ 16; County Defendants' Memorandum of Law re: Dismissal of John Doe Defendants (Dkt. 23) at 12-13 (citing N.Y.C.P.L.R. § 215[1]; Green v. Fulton County, 511 N.Y.S.2d 150, 152 (3d Dept. 1987) (actions against deputy sheriffs must be commenced within one-year as required by § 215[1]). Plaintiff has not responded to County Defendants' contentions.

At the outset, the court determines that although the service at issue was effected according to the Affidavit of Service on August 21, 2023 and removal occurred on August 22, 2023, Rule 4(e) and Rule 4(m) nevertheless govern whether service on the John Doe Defendants in this case was proper. See 28 U.S.C. § 1448 (federal rules of civil procedure Rule 4(e) and Rule 4(m) apply to removal actions in which service was incomplete or defective); see also Millet v. Selip & Stylianou LLP, 2020 WL 979787, at *1 (W.D.N.Y. Feb. 28, 2020). Rule 4(m) requires service pursuant to state law be accomplished within 90-days of the date of removal, FEDERAL CIVIL RULES HANDBOOK, Baiker-McKee Janssen (Thomson-Reuters) 2024 at 263 (citing § 1448 and caselaw). Pursuant to Rule 4(m), if defendant is not served within 90-days of the date of removal, the court must dismiss the action without prejudice against the defendant or order that service be made within a specified time. If plaintiff shows good cause for such failures, the court must extend the time for service for an appropriate period. See Rule 4(m). The Plaintiff bears the burden of demonstrating good cause, see Cassano v. Altshuler, 186 F.Supp.3d 318, 321-22 (S.D.N.Y. 2016) (exception exists to Rule 4(m)'s requirement that action be dismissed without prejudice if not served within 90-days, “if a plaintiff is able to demonstrate good cause for failure to timely serve ....”); see FEDERAL CIVIL RULES HANDBOOK, Baiker-McKee Janssen (Thomson-Reuters) 2024 at 258-263 (citing cases including Kogan v. Facebook, Inc., 334 F.R.D. 393, 401-02 (S.D.N.Y. 2020)). Relevantly, a plaintiff “cannot serve a John Doe” defendant pursuant to C.P.L.R. 308[2]. Royce v. Sunny's Limousine Service, Inc., 2021 WL 3928955, at *1 (E.D.N.Y. Sept. 2, 2021). Rather, a plaintiff is “required to ascertain the identity of the [Doe] defendants and then serve them with process.” Id.

Here, Plaintiff's 120-day period under § 306-b within which to identify and serve the John Doe Defendants expired September 25, 2022; Plaintiff's 90-day period pursuant to Rule 4(m) to identify and serve the Doe Defendants following removal expired November 25, 2023. Based on the record, at no time during such periods did Plaintiff make any effort to seek information from County Defendants which would have enabled Plaintiff to identify and timely serve the John Doe Defendants. Instead, Plaintiff erroneously implied, on October 10, 2023 in Plaintiff's attorney's Declaration in opposition to Defendants' motion to dismiss, that it was Defendants' obligation to do so. See Penberthy Declaration (Dkt. 16) ¶¶ 7, 9 (averring service was made on August 21, 2023 (referencing Exh. A the Affidavit of Service) on all Defendants including the John Doe Defendants and that “County Defendants are only parties in possession of information to disclose the actual identities of [the John Doe Defendants]”). However, a fair reading of the Affidavit of Service indicates it does not include any information related to the actual identity of the John Doe Defendants, such as duty stations or work shifts, which would be of any assistance to the County Defendants in ascertaining their identity. See Benitez v. Salotti, 2018 WL 3569931, at *2 (W.D.N.Y. July 25, 2018) (denying plaintiff's motion to compel defendants to identify John Doe defendants where plaintiff provided no information that would assist defendant in identifying Doe defendants such that plaintiff did not meet his burden to identify defendants and serve them) (citing cases). Significantly, until County Defendants received Plaintiff's opposition to County Defendants' motion to dismiss, County Defendants were not aware Plaintiff had purported to have served the John Doe Defendants as Plaintiff failed to timely file the Affidavit of Service with the court as required. See Fed.R.Civ.P. 4(e)(1) (proof of service must be made to the court by affidavit). (See Crosby Declaration (Dkt. 23) ¶ 7). Additionally, based on the record, there is no basis for Plaintiff's assertion that service on the John Doe Defendants was properly effected pursuant to C.P.L.R. 308[3] (permitting service on an authorized agent) as Plaintiff fails to provide an affidavit which “explicitly indicate[s] . . . that the individual being served has authority to accept service.” Luxottica Group S.p.A. v. Wafa Ali Inc., 2023 WL 6377332, at *6 (W.D.N.Y. Sept. 29, 2023).

Nor has Plaintiff complied with N.Y.C.P.L.R. § 1024 which allows plaintiffs to sue unnamed parties provided plaintiff has exercised “due diligence, prior to the running of the statute of limitations, to identify the defendant by name, and despite such efforts, are unable to do so.” Bumpus v. New York City Transit Auth., 883 N.Y.S.2d 99, 103-04 (2d Dept. 2009). The record demonstrates that Plaintiff has to date completely failed to make any effort to ascertain the identity of the John Doe Defendants as § 1024 requires.

Further, Plaintiff fails to demonstrate good cause for Plaintiff's failure to identify and serve the John Doe Defendants in accordance with Rule 4(m). Specifically, Plaintiff is required to show that “despite diligent attempts, service could not be made due to exceptional circumstances beyond his or her control.” Cassano v. Altshuler, 186 F.Supp.3d at 322. In this case, the record demonstrates that in the period since the Complaint was filed on May 25, 2023 until the present time, including following the filing of the Amended Complaint, Plaintiff has, as stated above, made no effort to identify the John Doe Defendants, apparently in the erroneous belief that it was contrary to the Plaintiff's obligation to do so, that of County Defendants. See Rule 4(e)(1) (“The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m).”). Moreover, in determining whether to grant a discretionary extension of time to serve the John Doe defendants, courts consider (1) whether any applicable statutory limitations have run, (2) whether the unserved defendants had actual notice of the claims asserted in the complaint, (3) whether defendants attempted to conceal the defect in service, and (4) whether the defendant would be prejudiced by extending plaintiff's time for service. Millet, 2020 WL 979787, at *3 (citation omitted). Courts “have declined to extend service deadlines where the plaintiff made no effort to achieve service, the resulting delay was lengthy, or plaintiffs failed to present a justifiable excuse for failing to effect service.” Kogan, 334 F.R.D. at 406. Here, several of Plaintiff's state law claims, Plaintiff's Fourth, Fifth, Sixth and Eighth Causes of Action against the Sheriff Filicetti as well as the John Doe Defendants, are recommended for dismissal based on statute of limitations grounds which expired prior to filing the Complaint, see Discussion, supra, at 90-94, 106-108, 114-15, 137-138. However, Plaintiff's First Cause of Action against the John Doe Defendants and the other Defendants is not time-barred as a § 1983 action is subject to a three-year limitations period. Second, there is nothing in the record to support, as is Plaintiff's burden, that any of the John Doe Defendants had actual knowledge of Plaintiff's claims. Third, there is no evidence that any of the John Doe Defendants sought to conceal their identifies or the defect in Plaintiff's attempted service pursuant to § 308[2] on August 21, 2023 and Plaintiff does not assert such fact. Last, if the court were to grant Plaintiff an extension of time, County Defendants could be potentially required to defend time-barred claims.

The cases relied on by Plaintiff purporting to support Plaintiff's request are distinguishable. In Davis, plaintiff was, unlike the instant case, pro se, and the issue presented was whether dismissal was premature arose on summary judgment not a question of valid service of process. See Davis, 160 F.3d at 921-22 (finding pro se plaintiff should have been given an opportunity to identify John Doe defendants through discovery). Here, Plaintiff is represented by counsel. In Cruz, the court, inconsistent with Plaintiff's request, held that “‘[w]here a plaintiff has had ample time to identify a John Doe defendant but gives no indication that he has made any effort to discover the [defendant's] name, . . . the plaintiff simply cannot continue to maintain a suit against the John Doe defendant.'” Cruz, 232 F.Supp.3d at 448 (quoting Coward v. Town & Vill. of Harrison, 665 F.Supp.2d 281, 300 (S.D.N.Y. 2009)). Finally, in Cole, the court declined to dismiss plaintiff's § 1983 claim pursuant to Rule 12(b)(6) against Jane Doe defendant doctor given that the identity of such Doe defendant may be available through pretrial discovery. See Cole, 2000 WL 760749, at *5 (S.D.N.Y. June 12, 2000). However, in so ruling, the court in Cole did not address whether dismissal was warranted based on plaintiff's failure to comply with Rule 4(m). Thus, none of the cases Plaintiff relies on support Plaintiff's failure to exercise diligence in ascertaining the identity of the John Doe Defendants.

Plaintiff has, moreover, failed to make use of informal requests to Defendants County and Sheriff calculated to identify the John Doe Defendants, Freedom of Information Requests available under the N.Y. Public Officer Law Art. 8, § 89 which would require disclosure of the names of the County Defendants' employees, the John Doe Deputy Sheriffs, or N.Y.C.P.L.R. § 3102[c] allowing for court ordered disclosure to aid a plaintiff in bringing an action. See Bumpus, 883 N.Y.S.2d at 106-07. In sum, given Plaintiff's unexcused lack of diligence in seeking to timely identify and serve the John Doe Defendants, the court should decline to grant an extension of time within which to serve the John Doe Defendants. See Felix-Torres v. Graham, 521 F.Supp.2d 157, 160 (N.D.N.Y. 2007) (dismissing without prejudice plaintiff's § 1983 complaint against four John Doe defendants where plaintiff failed to identify and serve such defendants in accordance with Rule 4(m)).

Based on the foregoing, Plaintiff's claims against the John Doe Defendants should be DISMISSED without prejudice pursuant to Rule 4(m).

CONCLUSION

Based on the foregoing, County Defendants' motion (Dkt. 10) should be GRANTED without prejudice with respect to Plaintiff's First, Second and Third Causes of Action; without prejudice with respect to Plaintiff's Fourth, Fifth, Sixth and Seventh Causes of Action against Niagara County; with prejudice with respect to Plaintiff's Eighth Cause of Action against Niagara County; with prejudice with respect to Plaintiff's Fourth, Fifth, Sixth, and Eighth Causes of Action against Sheriff Filicetti; and without prejudice with respect to the Seventh Cause of Action against Sheriff Filicetti. Dr. Cervantes's motion (Dkt. 11) should be GRANTED without prejudice with respect to Plaintiff's First, Fourth, Sixth, Seventh and Eighth Causes of Action. The John Doe Defendants 1-5 should be DISMISSED without prejudice.

ORDERED that this Report and Recommendation be filed with the Clerk of the Court.

ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within fourteen (14) days of service of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(d) of the Federal Rules of Civil Procedure and Local Rule 72.3.

Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).

Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Plaintiff and the Defendants.

SO ORDERED.