Opinion
9:21-cv-01090 (BKS/TWD)
02-01-2024
LUIS MENDEZ, Plaintiff, v. CAYUGA COUNTY, Defendant.
LUIS MENDEZ BURKE, SCOLAMIERO LAW FIRM JUDITH B. AUMAND, ESQ.
LUIS MENDEZ
BURKE, SCOLAMIERO LAW FIRM JUDITH B. AUMAND, ESQ.
REPORT-RECOMMENDATION AND ORDER
THÉRÈSE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
This matter has been referred for a report and recommendation by the Honorable Brenda K. Sannes, Chief United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Luis Mendez commenced this pro se action pursuant to 42 U.S.C. § 1983 (“Section 1983”) asserting claims arising out of his confinement at the Cayuga County Jail as a federal pretrial detainee. (Dkt. No. 11.) Plaintiff, who is presently confined at the Onondaga County Justice Center, paid the full statutory filing fee. (Dkt. No. 9.) Following the Court's initial review of Plaintiff's amended complaint pursuant to 28 U.S.C. § 1915A, only Plaintiff's Section 1983 medical indifference claim against Defendant Cayuga County remains. (Dkt. Nos. 26, 29.) Currently before the Court is Defendant's unopposed motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 34.) For the reasons discussed below, the Court recommends Defendant's motion be granted.
II. PROCEDURAL HISTORY
Plaintiff commenced this action in October of 2021. (Dkt. No. 11.) On January 19, 2022, the Court reviewed the complaint pursuant to 28 U.S.C. § 1915A, and found it failed to state a claim upon which relief may be granted. (Dkt. No. 12.) In light of Plaintiff's pro se status, he was afforded an opportunity to submit an amended complaint. Id. at 22-24. Plaintiff was specifically advised that his failure to comply with the January 2022 Order within thirty days would result in dismissal of the action. Id. Plaintiff was also ordered to promptly notify the Clerk's Office, in writing, of any change in his address and was warned his failure to do so may result in the dismissal of this action. Id. at 23-24.
The procedural history of this case leading up to the January 2022 Order was discussed at length therein.
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
On April 20, 2022, following several extensions of the amended pleading deadline and the return of certain mail as undeliverable, the Court dismissed this action without prejudice pursuant to 28 U.S.C.§ 1915A(b)(1), Federal Rule of Civil Procedure 41(b), and Local Rule 41.2(b), based on Plaintiff's failure to comply with the January 2022 Order and maintain a current address in accordance with Local Rule 10.1(c). (Dkt. No. 22.) That same day, judgment was entered dismissing this action. (Dkt. No. 23.) Both the April 2022 Order and the Order of Judgement were returned to the Court as undeliverable. (Dkt. No. 24.)
On September 8, 2022, the Court received a letter from Plaintiff's friend or relative, which provided a new address for Plaintiff, and requested an update on this case. (Dkt. No. 25.) In light of this submission, the Clerk sent a copy of the April 2022 Order and Order of Judgement to Plaintiff at this new address. See id. Shortly thereafter, Plaintiff filed a letter requesting this action be re-opened. (Dkt. No. 26.) On October 5, 2022, the Court granted Plaintiff's request to vacate the Judgment and afforded him a final opportunity to file an amended complaint within thirty days. (Dkt. No. 27.)
Thereafter, Plaintiff timely submitted the amended complaint. (Dkt. No. 28.) Unlike the original, which named only employees of Cayuga County Jail and a treating physician as defendants, the caption of the amended complaint named the United States of America as the only defendant, and the body of the pleading asserted Section 1983 claims against only Cayuga County Jail. Id.
On initial review, the Court liberally construed the amended complaint to assert a Section 1983 medical indifference claim against Cayuga County based on a delay in medical treatment under the Due Process Clause of the Fifth Amendment, and a medical negligence claim against the United States of America pursuant to the Federal Tort Claims Act (“FTCA”). (Dkt. No. 29.) As detailed therein, only Plaintiff's Section 1983 medical indifference claim against Cayuga County survived initial review and required a response. Id. In so ruling, the Court expressed no opinion as to whether this claim could withstand a properly filed dispositive motion. Id. All remaining federal claims were dismissed pursuant to 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted. Id. at 8-9.
In Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017), the Second Circuit made clear that the standard governing conditions of confinement claims, which encompass claims for medical indifference, is the same whether brought by a state or federal pretrial detainee. Id. at 21 n.3 (“This case implicates the Due Process Clause of the Fourteenth Amendment because it involves state pretrial detainees who are seeking to vindicate their constitutional rights....However, the analysis in this decision should be equally applicable to claims brought by federal pretrial detainees pursuant to the Due Process Clause of the Fifth Amendment.”).
By Text Order entered January 11, 2023, Plaintiff was informed that because he paid the filing fee for this action, he was responsible for serving the summons and amended complaint on Cayuga County in accordance with Federal Rule of Civil Procedure 4. (Dkt. No. 30.) In relevant part, Plaintiff was advised Rule 4(c) of the Federal Rules of Civil Procedure also provides that “[a]t the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court.” Id. On January 27, 2023, Plaintiff filed a letter request for the Marshals to effectuate service on his behalf and provided payment of the $8.00 service fee to the U.S. Marshal. (Dkt. No. 31.) On February 15, 2023, the Court granted Plaintiff's letter request and directed the Clerk to issue a summons and forward it along with a copy of the amended complaint to the U.S. Marshal for service of process on Cayuga County. (Dkt. Nos. 32, 33.)
On May 1, 2023, Cayuga County filed the instant counseled motion to dismiss for failure to state a claim upon which relief may be granted and for lack of personal jurisdiction. (Dkt. No. 34.) The Court notified Plaintiff his response was due by May 22, 2023. (Dkt. No. 35.) However, that text notice was returned as undeliverable. (Dkt. No. 36.) On June 12, 2023, the Court sua sponte granted Plaintiff a 30-day extension of time to respond to Defendant's motion. (Dkt. No. 37.) On June 15, 2023, Plaintiff filed a change of address. (Dkt. No. 38.) On June 29, 2023, the June 12, 2023, text order was returned as undeliverable. (Dkt. No. 39.) Because it was unclear if Plaintiff received a copy of the text order entered on June 12, 2023, on August 16, 2023, the Court sua sponte granted a second 30-day extension of time to respond to Defendant's motion. (Dkt. No. 41.) Plaintiff's response was therefore due by September 15, 2023. Id. To date, Plaintiff has not filed a response to Defendant's motion, and the time to do has expired. On October 12, 2023, the Clerk received a letter from Plaintiff requesting an update on the case and the Clerk mailed a copy of the docket sheet to Plaintiff. (Dkt. No. 42.)
III. FACTUAL BACKGROUND
The facts are drawn from the amended complaint. (Dkt. No. 28.) On December 29, 2020, Plaintiff was housed in the Special Housing Unit at Cayuga County Jail as a federal pretrial detainee. Id. at 1. At approximately 4:30 p.m., Plaintiff ingested “pieces” of a “metal wire” that were served in his dinner. Id. Plaintiff felt “great pain and started spitting out blood.” Id. He immediately contacted “Cayuga staff to obtain medical assistance.” Id. Corrections Officer Cowan responded to his request for assistance, spotted the metal wire, and contacted Corrections Sergeant (“Sgt.”) Marvintino. Id. Sgt. Marvintino “arrived and witnessed [Plaintiff] spitting out blood and saw pieces of wire still in the food tray[.]” Id. He “took a slew of photos of the metal and blood spit up by [Plaintiff] with his cell phone.” Id. Sgt. Marvintino told Plaintiff arrangements would be made for his transport to a hospital, but thereafter advised Plaintiff “the hospitals were closed and no medical was present[.]” Id. at 1-2. As a result, liberally construed, Plaintiff alleges he experienced a delay in medical treatment. Id. at 2.
As the Court noted on initial review of the amended complaint, the nature of the alleged delay is unclear. (Dkt. No. 29 at 4 n.3.) Plaintiff states he received x-rays at Cayuga County Jail two days after the alleged incident, and was evaluated by a physician at a hospital “[a] month later.” (Dkt. No. 28 at 2.) However, documents attached to the original complaint indicate that Plaintiff was taken for abdominal radiographs the morning after he allegedly swallowed metal material, and again a few days later. (Dkt. No. 2 at 1-2.) In addition, Plaintiff alleged in the original complaint that he spoke to a nurse the day after the alleged incident, and again less than two weeks later. (Dkt. No. 11 at 7.)
IV. STANDARD OF REVIEW
A defendant may move to dismiss a complaint “for failure to state a claim upon which relief can be granted” under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion tests the legal sufficiency of the complaint and whether it conforms to Rule 8(a)(2) of the Federal Rules of Civil Procedure. To survive a motion to dismiss, the complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Determining whether a complaint states a plausible claim for relief . . . requires the reviewing court to draw on its judicial experience and common sense . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief. Iqbal, 556 U.S. at 679 (internal quotations and citations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
A complaint may be dismissed pursuant to Rule 12(b)(6) only where it appears that there are not “enough facts to state a claim that is plausible on its face.” Twombly, 550 at 570. While Rule 8(a)(2) “does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me-accusation.” Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). A complaint which “tenders ‘naked assertion[s]' devoid of ‘further factual enhancement'” does not suffice. Id. (citation omitted).
“In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Where a party is proceeding pro se, the court is obliged to “read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest.” See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts remain obligated to construe pro se complaints liberally even after Twombly). In considering a Rule 12(b)(6) motion, “the court considers the complaint, any written documents attached to them, and any matter of which the court can take judicial notice for the factual background of the case.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (citation and internal quotation marks omitted).
“A plaintiff's failure to respond to a motion to dismiss does not relieve the Court of its obligation to consider the merits of plaintiff's claims,” and “‘[i]f a complaint is sufficient to state a claim on which relief can be granted, the plaintiff's failure to respond . . . does not warrant dismissal.'” Malloy v. Sopchak, No. 1:18-CV-1460 (BKS/DJS), 2020 WL 4432631, at *2 (N.D.N.Y. July 31, 2020) (quoting McCall v. Pataki, 232 F.3d 321, 322 (2d Cir. 2000)).
V. DISCUSSION
Defendant argues Plaintiff's amended complaint must be dismissed for (1) failure to state a claim of municipal liability; (2) failure to state a claim for deliberate indifference to a serious medical need; and (3) for lack of personal jurisdiction. (Dkt. No. 34-2.)
A. Personal Jurisdiction
“Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.” Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). While Defendant's motion cites only Federal Rule of Civil Procedure 12(b)(6) as the basis of its motion, the Court construes it as, in part, being made under Rule 12(b)(5) for insufficient service of process. To survive a motion to dismiss for insufficient service of process under Rule 12(b)(5), “the plaintiff bears the burden of establishing that service was sufficient.” Allstate Ins. Co. v. Rosenberg, 771 F.Supp.2d 254, 260 (E.D.N.Y. 2011) (quoting Khan v. Khan, 360 Fed.Appx. 202, 203 (2d Cir. 2010) (summary order)).
A Rule 12(b)(5) motion to dismiss “is the proper vehicle for challenging the mode of delivery or lack of delivery of the summons and complaint.” Mhina v. Citizens Bank, N.A., No. 5:22-CV-427 (BKS/ML), 2022 WL 16572045, at *2 (N.D.N.Y. Nov. 1, 2022).
“In deciding a Rule 12(b)(5) motion, a Court must look to Rule 4, which governs the content, issuance, and service of a summons.” DeLuca v. AccessIT Grp., Inc., 695 F.Supp.2d 54, 64 (S.D.N.Y. 2010). Under Rule 4, a plaintiff must serve the summons and complaint on a defendant within 90 days of filing the complaint. Fed.R.Civ.P. 4(c)(1), (m). If a plaintiff fails to effect service on a defendant, the court “must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Fed.R.Civ.P. 4(m). If, however, “the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Id. (emphasis added); Canady v. Correct Care Sols., No. 15-CV-4893 (KMK), 2017 WL 4280552, at *9 (S.D.N.Y. Sept. 25, 2017) (noting that when a plaintiff has demonstrated good cause, the extension to serve is mandatory) (citing Blessinger v. United States, 174 F.R.D. 29, 31 (E.D.N.Y. 1997)). Accordingly, there are two means by which a court can grant an extension: (1) upon a showing of good cause; or (2) within its discretion. Fed.R.Civ.P. 4(m).
“The following two factors are relevant in a court's evaluation of good cause: (1) the reasonableness and diligence of plaintiff's efforts to serve; and (2) the prejudice to defendants from the delay.” Lopez v. Guziczek, No. 21 CV 10099 (NSR), 2023 WL 6973732, at *1 (S.D.N.Y. Oct. 23, 2023) (citations omitted); see Patel v. Singh, No. 21-CV-00759, 2023 WL 2262792, at *5 (E.D.N.Y. Feb. 28, 2023) (“[I]f a defendant has received actual notice of a lawsuit, ‘regardless of whether service was initially proper or whether good cause is found, the Court may still grant an extension of time given to a plaintiff to serve the defendant in its discretion.'”) Id. (declining to dismiss complaint for lack of service).
Moreover, “[t]here is a strong federal policy in favor of resolving disputes on the merits.” Byrd v. Town of DeWitt, No. 5:23-CV-390 (DNH), 2023 WL 6467921, at *4 (N.D.N.Y. Oct. 5, 2023). “Consequently, as long as ‘it appears that proper service may still be obtained,' Grammenos v. Lemos, 457 F.2d 1067, 1070 (2d Cir. 1972), the right remedy is typically to direct the plaintiff to re-serve the pleading.” Byrd, 2023 WL 6467921 at *4; see Zapata v. City of New York, 502 F.3d 192, 195-96 (2d Cir. 2007) (granting an extension “even in the absence of good cause”).
As detailed above, the Court directed the U.S. Marshals to serve the summons and amended complaint on Cayuga County. (See Dkt. Nos. 32, 33.) As such, Plaintiff was “entitled to rely on the U.S. Marshals to effect service.” Burris v. Nassau Cnty. Dist. Att'y, No. 14-CV-5540, 2023 WL 6450398, at *5 (E.D.N.Y. Sept. 30, 2023).
Upon review, it appears the U.S. Marshals inadvertently served the amended complaint on Cayuga County District Attorney's Office on March 2, 2023. (Dkt. No. 34-2 at 3-5, 10-11; Dkt. No. 34-1 at 1-3.) As Defendant correctly points out, the Cayuga County District Attorney's Office is not authorized to accept service on behalf of Cayuga County. (Dkt. No. 34-2 at 10-11; Fed. R. Civ. P. 4(j), N.Y. C.P.L.R. § 311.) Plaintiff has therefore failed to effect proper service on Cayuga County.
Rule 4(j) of the Federal Rules of Civil Procedure permits service of process on a local government “by delivering a copy of the summons and of the complaint to its chief executive officer” or “serving a copy of each in the manner prescribed by the state's law for serving a summon or like process on such a defendant.” Fed.R.Civ.P. 4(j). Pursuant to New York law, personal service upon a governmental subdivision shall be made by delivering the summons . . . upon a county, to the chair or clerk of the board of supervisors, clerk, attorney or treasurer[.]” N.Y. C.P.L.R. § 311.
However, a pro se plaintiff may avoid dismissal under Rule 4(m) if he “indicated to the court his reliance on service by the Marshals[.]” Romandette v. Weetabix Co., 807 F.2d 309, 311 (2d Cir. 1986). Such is the case here. (Dkt. Nos. 31, 32.) Thus, on the current record, the Court finds “the Marshals' failure to effect service automatically constitutes good cause within the meaning of Rule 4(m).” Ruddock v. Reno, 104 Fed.Appx. 204, 206-07 (2d Cir. 2004).
Accordingly, Court recommends denying Defendant's motion to dismiss for improper service and lack of personal jurisdiction.
Ordinarily, the Court would further recommend that Plaintiff be granted an extension of time under Federal Rule of Civil Procedure 4(m) to effectuate proper service on Cayuga County and direct the U.S. Marshals to re-attempt service of the amended complaint and summons within that time frame. However, because the Court recommends granting Defendant's motion to dismiss under Rule 12(b)(6), the Court declines to do so at this time.
B. Municipal Liability
Defendant argues Plaintiff has failed to state a claim for municipal liability. See Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). The Court agrees.
Under Monell, a municipality may be liable for deprivation of constitutional rights “when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” Id. at 694. “The policy or custom need not be memorialized in a specific rule or regulation,” Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir. 1996), and it may be “reflected in either action or inaction,” Cash v. Cnty. of Erie, 654 F.3d 324, 341-42 (2d Cir. 2011).
The existence of a municipal policy or custom may be plead in any of four ways: “(1) a policy formally adopted and endorsed by the municipality; (2) actions taken by policymaking officials that caused the particular deprivation alleged; (3) practices by subordinate officials that are not expressly authorized but are so widespread and consistent that policymakers must have been aware of them; or (4) a failure by policymakers to train or supervise that amounts to deliberate indifference to the rights of those who come into contact with the inadequately trained or supervised municipal employees.” Crawley v. City of Syracuse, 496 F.Supp.3d 718, 729 (N.D.N.Y. 2020) (internal quotation marks omitted) (citing Deferio v. City of Syracuse, 770 Fed.Appx. 587, 589 (2d Cir. 2019) (summary order)). “Boilerplate statements” that county employees were acting in accord with a municipal policy, with no facts to support those statements, are not sufficient to support a Monell claim. See Brown v. Oneida Cnty., No. 6:15-CV-0849, 2016 WL 4275727, at *4 (N.D.N.Y. Aug. 12, 2016).
“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.” McLennon v. City of New York, 171 F.Supp.3d 69, 95 (E.D.N.Y. 2016) (internal quotation marks and ellipsis omitted); see also Cruz v. Vill. of Spring Valley, No. 21-CV-2073, 2022 WL 428247, at *6 (S.D.N.Y. Feb. 11, 2022) (collecting cases). Put simply, to allege “there is a policy does not make it so.” Vassallo v. City of New York, No. 15-CV-7125, 2016 WL 6902478, at *14 (S.D.N.Y. Nov. 22, 2016). “Once a plaintiff has demonstrated the existence of a municipal policy, a plaintiff must then establish a causal connection, or an ‘affirmative link,' between the policy and the deprivation of his constitutional rights.” Deferio, 770 Fed.Appx. at 589 (citing Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985)).
Generally, “[e]stablishing the liability of the municipality requires a showing that the plaintiff suffered a tort in violation of federal law committed by the municipal actors [acting in furtherance of the municipality's] custom or policy.” Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013). However, the Second Circuit has also recognized that “constitutional injuries may be found to exist . . . in the absence of individual liability, [where] the injuries complained of are not solely attributable to the actions of named individual defendants.” Barrett v. Orange Cnty. Hum. Rts. Comm'n, 194 F.3d 341, 350 (2d Cir. 1999) (“[E]ven in situations where the acts or omissions of individual employees do not violate an individual's constitutional rights, ‘the combined acts or omissions of several employees acting under a governmental policy or custom may violate' those rights.”).
As noted, Plaintiff alleges that after he ingested metal material and was told by Sgt. Marvintino that arrangements would be made for his transport to a hospital, Sgt. Marvintino thereafter advised Plaintiff that he could not receive emergency medical treatment because “the hospitals were closed and no medical was present[.]” (Dkt. No. 28 at 1-2.) Plaintiff suggests his injuries “all originat[e] from lack of care and professional ethics and safety of the Cayuga County Jail” and the “County Jail . . . violated their duty to serve safe and sanitary meals to inmates without mold, mercury or metal.” Id. at 3.
Here, the Court finds Plaintiff has failed to plausibly allege Cayuga County maintained a policy or custom which deprived him of a constitutional right. (Dkt. No. 34-2 at 7.) To that end, Plaintiff has not identified any formal policy that delayed his medical treatment and, while the policy or practice need not be formally memorialized, in order to establish the existence of a municipal policy or custom for purposes of Section 1983 Plaintiff must demonstrate that Cayuga County has a “persistent and widespread” practice that is “so permanent and well settled as to constitute a ‘custom or usage' with the force of law.” Ruiz v. City of New York, No. 14-cv-5231, 2015 WL 5146629, at *11 (S.D.N.Y. Sept. 2, 2015). The allegations in the amended complaint fall short of this high standard. See Schnauder v. Gibens, 679 Fed.Appx. 8, 10 (2d Cir. 2017) (no de facto policy alleged where “apart from a detailed recounting of his own experiences,” the complaint contained “only general conclusory allegations that there was a policy”) (internal quotation marks omitted); Iacovangelo v. Correctional Med. Care, Inc., 624 Fed.Appx. 10, 14 (2d Cir. 2015) (widespread practice not pled where other than the plaintiff, the pleading provides only one additional example of a similar incident); Santana v. City of New York, No. 15-CV-6715, 2018 WL 1633563, at *10 (S.D.N.Y. Mar. 29, 2018) (“[I]t is well-settled that 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.”).
The Court notes “the absence of a policy is not a policy and is not actionable under Monell.” Zachary v. City of Newburgh, No. 13-CV-5737, 2014 WL 1508705, at *5 (S.D.N.Y. Apr. 1, 2014) (citation omitted); see also Quinones v. New York City, No. 19-CV-5400, 2020 WL 5665142, at *19 (S.D.N.Y. Aug. 17, 2020) (“[B]ut, under Monell, a municipality's failure to put a formal policy in place to prevent unlawful conduct is not the same thing as an actionable policy.”), report and recommendation adopted, 2020 WL 6901340 (S.D.N.Y. Nov. 23, 2020). “Nonetheless, the Supreme Court has left a narrow opening for § 1983 claims . . . seeking liability based not on affirmative conduct but on a government official's failure to act.” Reynolds v. Giuliani, 506 F.3d 183, 191-92 (2d Cir. 2007) (citation omitted). When a municipality “does not have an adequate policy . . . Monell liability exists ‘where a local government is faced with a pattern of misconduct and does nothing, compelling the conclusion that the local government has acquiesced in or tacitly authorized its subordinates' unlawful actions.” Fraser v. City of N.Y., No. 20-CV-4926, 2021 WL 1338795, at *10 (S.D.N.Y. Apr. 9, 2021) (quoting Reynolds, 506 F.3d at 192). “Such a pattern, if sufficiently persistent or widespread as to acquire the force of law, may constitute a policy or custom within the meaning of Monell.” Id. Plaintiff's amended complaint does not plausibly allege a “pattern of misconduct.” (Dkt. No. 28.) Rather, as Defendant points out, the facts alleged indicate singular interactions with employees of the jail done in response to his specific situation. (Dkt. No. 34-2 at 7.) See Brogdon v. City of New Rochelle, 200 F.Supp.2d 411, 427 (S.D.N.Y. 2002) (“A single incident by itself is generally insufficient to establish the affirmative link between the municipal policy or custom and the alleged unconstitutional violation.”).
Further, Plaintiff has not identified any actions taken by policymaking individuals resulting in the alleged delay, nor does the amended complaint contain allegations describing a failure by policymakers to provide adequate training or supervision to subordinates. See, e.g., Dosiak v. Town of Brookhaven, No. 16-cv-6658, 2017 WL 7048912, at * 11 (E.D.N.Y. Nov. 27, 2017); Boonmalert v. City of New York, 2017 WL 1378274, at * 7 (S.D.N.Y. Apr. 12, 2017).
Moreover, Plaintiff has not responded to Defendant's motion to dismiss, and therefore he “has failed to identify how any of the allegations contained in his amended complaint support imposing municipal liability on [Cayuga] County.” Rowles v. Doe, No. 19-CV-6933, 2021 WL 3946291, at *3 (W.D.N.Y. Sept. 3, 2021); see, e.g., Isaac v. City of New York, No. 17-CV-1021, 2018 WL 1322196, at *6 (S.D.N.Y. Mar. 13, 2018) (de facto policy not plausibly alleged where plaintiff merely asserted that “the City of New York has been aware of the routine, dangerous, and constitutionally inadequate medical care [in its jail]”).
Because Plaintiff has failed to plausibly allege municipal liability on the part of Cayuga County, the Court recommends granting Defendant's motion for failure to state a claim upon which relief may be granted and recommends dismissing Plaintiff's Section 1983 medical indifference claim against Defendant Cayuga County.
As such, the Court does not reach Defendant's remaining argument. (Dkt. No. 34-2 at 7-10.)
VI. LEAVE TO AMEND
Despite the rather extensive history of this litigation, it remains only in the earliest stages. As noted, Plaintiff did not oppose Defendant's motion to dismiss or seek leave to amend. However, given Plaintiff's pro se status, the Court recommends Plaintiff's Section 1983 medical indifference claim against Defendant Cayuga County be dismissed without prejudice and with leave to amend. See Maharishi Hardy Blechman Ltd. v. Abercrombie & Fitch Co., 292 F.Supp.2d 535, 555 (S.D.N.Y. 2003) (noting that courts routinely grant leave to replead following judgment on the pleadings, unless amendment would be futile); see Levinson v. United States Fed. Bureau of Prisons, Metro. Corr. Ctr. - New York, 594 F.Supp.3d 559, 567 (S.D.N.Y. 2022) (“[W]hen a motion to dismiss is granted, the usual practice is to dismiss the claims without prejudice and grant plaintiff leave to amend the complaint.”).
VII. CONCLUSION
WHEREFORE, for the reasons set forth herein, it is hereby
RECOMMENDED that Defendant's motion to dismiss (Dkt. No. 34) be GRANTED; and it is further
RECOMMENDED that Plaintiff's Section 1983 medical indifference claim against Defendant Cayuga County be DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO AMEND; and it is further
ORDERED that the Clerk serve a copy of the Report-Recommendation and Order on all parties in accordance with Local Rules, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation and Order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).
IT IS SO ORDERED.