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finding that plaintiff failed to allege a serious medical need where allegations about pain were generic
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1:15-cv-1356 (BKS/DEP)
01-28-2016
TYRONE WATSON, Plaintiff, v. JOHN DOE, Kingston Police Department, et al. Defendants.
APPEARANCES: Tyrone Watson 13-A-4239 Eastern NY Correctional Facility Box 338 Napanoch, NY 12458 Pro se Plaintiff
APPEARANCES:
Tyrone Watson
13-A-4239
Eastern NY Correctional Facility
Box 338
Napanoch, NY 12458
Pro se Plaintiff Hon. Brenda K. Sannes, United States District Judge :
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Tyrone Watson, a New York State inmate, commenced this civil rights action under 42 U.S.C. § 1983, against two John Doe defendants who are members of the Kingston Police Department. Dkt. No. 1. Plaintiff alleges that defendants used excessive force against him during an unlawful arrest on October 18, 2012, and refused him medical attention for his injuries. Id.
Plaintiff's complaint and application to proceed in forma pauperis were forwarded to United States Magistrate Judge David E. Peebles to review the sufficiency of the claims under 28 U.S.C. § 1915(e). On December 21, 2015, Magistrate Judge Peebles issued a Report, Recommendation, and Order recommending that plaintiff's Fourteenth Amendment deliberate medical indifference claim be dismissed, without prejudice, with leave to amend. Dkt. No. 6, p. 12. Judge Peebles further recommended that in the event the Report Recommendation is adopted and plaintiff fails to amend his complaint by the deadline set by the assigned district judge, plaintiff's complaint be accepted for filing, except as to his deliberate medical indifference claim, and that the Clerk of the Court add the City of Kingston Chief of Police, Gilles M. Larochelle, as a defendant for purposes of service and discovery. Id. Magistrate Judge Peebles advised plaintiff that, under 28 U.S.C. § 636(b)(1), failure to file written objections to the Report Recommendation within fourteen days "will preclude appellate review." Id.
Section 1915(e) directs that when a plaintiff seeks to proceed in forma pauperis, "the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
On January 7, 2016, plaintiff filed an amended complaint. Dkt. No. 7. The amended complaint contains additional facts regarding plaintiff's excessive force, false arrest, and deliberate indifference claims. Id. The amended complaint also contains allegations, which, viewed liberally, appear to assert a municipal liability claim under Monell v. Dep't of Social Servs., 436 U.S. 658 (1978), against the City of Kingston. Id. To date, plaintiff has not filed any objections to the Report Recommendation.
II. STANDARD OF REVIEW
As no objections to the Report Recommendation have been filed, and the time for filing objections has expired, the Court reviews the Report Recommendation for clear error. See Glaspie v. N.Y.C. Dep't of Corr., No. 10 CV 00188(GBD)(JCF), 2010 WL 4967844, at *1, 2010 U.S. Dist. LEXIS 131629, at *2-3 (S.D.N.Y. Nov. 30, 2010) (explaining that when no objections to report and recommendation are made, "the Court may adopt [it] if there is 'no clear error on the face of the record.'") (quoting Adee Motor Cars, LLC v. Amato, 388 F. Supp. 2d 250, 253 (S.D.N.Y. 2005)).
III. DISCUSSION
A. Excessive Force and False Arrest
The Court has reviewed the Report Recommendation with respect to the excessive force and false arrest claims for clear error and found none. The Court therefore adopts Magistrate Judge Peebles' conclusion that plaintiff's allegations asserting excessive force and false arrest are sufficient to survive review under 28 U.S.C. § 1915(e). Dkt. No. 6, p. 7. As the amended complaint only supplements the facts regarding the incident which forms the basis for plaintiff's excessive force and unlawful arrest claims, see Dkt. No. 1, p. 5; Dkt. No. 7, pp. 2-3, the Court likewise concludes that these claims, as amended, survive review under § 1915(e).
B. Deliberate Indifference
Magistrate Judge Peebles found that the original complaint failed to allege sufficient facts to state a claim that the defendant police officers were deliberately indifferent to his serious medical needs. In light of the fact that plaintiff has filed an amended complaint, however, which adds new allegations regarding the deliberate indifference claim, Magistrate Judge Peebles' recommendation that the deliberate indifference claim in the complaint be dismissed is now moot. The Court has therefore considered the sufficiency of the amended complaint, in light of 28 U.S.C. § 1915(e)(2)(B), to determine whether the new factual allegations concerning deliberate medical indifference cure the deficiencies identified in the Report Recommendation. After considering the allegations in the amended complaint liberally, with deference to plaintiff's pro se status, the Court finds that plaintiff has failed to state a claim of deliberate medical indifference.
In the amended complaint, plaintiff alleges that John Doe #2 "punched [him] in the face;" that both officers "wrestled [him] to the ground;" and that he was "being choked and told to stop resisting." Dkt. No. 7, p. 2. Plaintiff alleges that his "nose was bleeding" and he "was barely coherent." Id. Plaintiff alleges that after he was put in the police car he "asked to be taken to the hospital, not knowing if my nose was broken or not; because it wouldn't stop bleeding." Id. He alleges that the officers ignored him and brought him "straight to the police station." He alleges that at the police station he again asked to be brought to the hospital "because my nose was still bleeding." Id. Plaintiff states that he was "once again ignored," but does not identify who at the police station ignored his request. Plaintiff asserts that the defendants "acted with deliberate indifference, fully aware of the substantial risk of serious harm exist [sic] at the time of the incident." Id. at 3.
A claim of deliberate indifference to serious medical needs has an objective prong and a subjective prong. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996). As set forth in Magistrate Judge Peebles' Report Recommendation, to establish a claim of deliberate medical indifference, the objective component requires a plaintiff to allege that the deprivation was "sufficiently serious;" the subjective component requires a plaintiff to allege and that the defendant "acted or failed to act despite his knowledge of a substantial risk of serious harm." Farmer v. Brennan, 511 U.S. 825, 834, 842 (1994); Caiozzo v. Koreman, 581 F.3d 63, 71 (2d Cir. 2009) (applying Farmer test to pre-trial detainees). Factors that should be considered in assessing whether a medical need is sufficiently serious include: "(1) whether a reasonable doctor or patient would perceive the medical need in question as 'important and worthy of comment or treatment,' (2) whether the medical condition significantly affects daily activities, and (3) 'the existence of chronic and substantial pain.'" Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003) (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)).
Here, plaintiff has not alleged that his nose was broken; nor has he identified any medical treatment that he needed. Plaintiff did not allege how long his nose was bleeding, or describe any pain associated with his injury. Thus, even viewing his pro se allegations with leniency, the allegations fail to allege a serious medical need. See Munlyn v. Pietrie, No. 13-CV-6170FPG, 2014 WL 3695488, at *6, 2014 U.S. Dist. LEXIS 101274, at *16 (W.D.N.Y. July 24, 2014) (finding that the complaint failed to allege a serious medical condition where only the allegation was that the plaintiff "was 'in pain,'" and there were no allegations regarding, among other things, "the level or extent of the pain . . . any resulting inability to engage in normal activities, or any harm consequently experienced or likely to occur."). Further, although plaintiff alleged that he asked the defendant officers to take him to the hospital because his nose "wouldn't stop bleeding," Dkt. No. 7, ¶ 8, he has not alleged that he told the officers that he was in pain or that his nose was broken. Thus the complaint, even construed liberally, fails to allege that the officers were aware that their failure to take plaintiff to the hospital for prompt medical treatment posed a substantial risk of serious harm to plaintiff. Hathaway, 99 F.3d at 552 (holding that the subjective component requires that "the charged official must act with a sufficiently culpable state of mind," which "is the equivalent of criminal recklessness."). C.f., Lasher v. City of Schenectady, No. 02-CV-1395, 2004 WL 1732006, at *5, 2004 U.S. Dist. LEXIS 14870, at *17 (N.D.N.Y. Aug. 3, 2004) (finding evidence that plaintiff's nose was broken and bleeding for approximately two hours raised a triable issue of fact regarding a serious medical need); Riles v. Bannish, No. 3:10-CV-652 (RNC), 2010 WL 3169391, at *4, 2010 U.S. Dist. LEXIS 80920, at *11 (D. Conn. Aug. 11, 2010) (finding allegations that doctor denied pain medication, after plaintiff complained of excruciating pain, and failed to timely diagnose and treat the plaintiff's broken nose were sufficient to state a claim of deliberate indifference). Because it is possible that plaintiff could state a plausible medical indifference claim, the claim is dismissed with leave to amend. If plaintiff seeks to amend the complaint, he should note that any amended complaint will replace the existing complaint, and must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994). He should further note the information provided by Magistrate Judge Peebles in the Report Recommendation. Dkt. No. 6, pp. 9-10.
C. Municipal Liability - Monell
A municipality may not be held liable under § 1983 on the basis of respondeat superior. Monell, 436 U.S. at 694-95. Rather, municipalities are responsible only for "their own illegal acts," Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986), and are not vicariously liable for civil rights violations perpetrated by their employees. See Monell, 436 U.S. at 691. In order to sustain a §1983 claim for municipal liability, a plaintiff must show that he suffered a constitutional violation, and that the violation resulted from an identified municipal policy or custom. Monell, 436 U.S. at 694-695. A municipal policy or custom may be established by any of the following: (1) a formal policy, officially promulgated by the municipality, id. at 690; (2) action taken by the official responsible for establishing policy with respect to a particular issue, Pembaur, 475 U.S. at 483-84; (3) unlawful practices by subordinate officials so permanent and widespread as to practically have the force of law, City of St. Louis v. Praprotnik, 485 U.S. 112, 127-30 (1985) (plurality opinion); or (4) a failure to train or supervise that amounts to "deliberate indifference" to the rights of those with whom the municipality's employees interact. City of Canton v. Harris, 489 U.S. 378, 388 (1989).
Read liberally, the amended complaint appears to allege, under the fourth theory, that the City of Kingston had a custom or policy of tolerating the use of excessive force and police misconduct in executing arrests and that it failed to properly train or supervise its officers in these areas. "A pattern of similar constitutional violations by untrained employees is 'ordinarily necessary' to demonstrate deliberate indifference for purposes of failure to train." Connick v. Thompson, 563 U.S. 51, 62 (2011). Here, plaintiff alleges that "Kingston Police Chief, Gilles M. Larochelle is responsible for teaching his officers the protocol and etiquette when dealing with civilians in the community." Dkt. No. 7, ¶ 4. Plaintiff further alleges that the "deliberate and extreme excessive force, and police brutality, and unlawful arrests" he allegedly suffered "at the hands of the Kingston Police Department," Dkt. No. 7, ¶ 10, were not "isolated incident[s]," Dkt. No. 7, ¶ 9, but rather part of a "patern" [sic] of unconstitutional conduct that has existed in "the Kingston Police Department from 2012-back to 1995." Dkt. No. 7, ¶ 10. In addition to his allegations concerning his October 2012 excessive force and false arrest claims that are the subject of this action, plaintiff recounts incidents from July 2012 and March 1995 during which officers from the Kingston Police Department allegedly subjected him to excessive force and unlawfully arrested him. See, e.g., Dkt. No. 7, ¶ 9 ("The officer grabs my arm and with his other arm chokes me while another officer puts handcuffs on me"); Dkt. No. 7, ¶ 10 (while laying down on his "stomach in the mud . . . [t]he officer hits me in the temple area of my head knocking me out. When I wake up the police Rottweiler was ripping my thigh apart on my right leg"))." Id. These assertions, read liberally in combination with the facts in the complaint, sufficiently allege a series of incidents during which City of Kingston police officers subjected him to excessive force and falsely arrested him to warrant an inference that their conduct was attributable to inadequate training or supervision amounting to deliberate indifference. See Tyus v. Newton, No. 3:13-CV-1486 SRU, 2015 WL 1471643, at *11, 2015 U.S. Dist. LEXIS 42089, at * 29-30 (D. Conn. Mar. 31, 2015) ("In view of the number of alleged unconstitutional traffic stops, searches, and arrests involving the plaintiff and at least one other individual prior to the incidents involving the plaintiff, I conclude that the plaintiff has alleged sufficient facts to state a plausible claim that the City of New London had a custom or policy of tolerating police misconduct and acted with deliberate indifference by poorly training or supervising its officers regarding motor vehicle stops, detentions, pat-down and body cavity searches, and arrests"); Castilla v. City of New York, No. 09 Civ. 5446(SHS), 2012 WL 3871517, at **4-5, 2011 U.S. Dist. LEXIS 95619, at *12 (S.D.N.Y. Sept. 6, 2012) (denying motion for judgment on the pleadings regarding municipal liability because plaintiff alleged "a string of incidents in which she was victimized by multiple officers in multiple locations, both on and off City property" as well as "various other instances of male police officers taking sexual advantage of females under their custody or control")
Although not identified in the caption as a defendant, affording plaintiff the solicitude he is due as a pro se litigant, the Court construes the amended complaint as raising a claim against the City of Kingston. See Gonzalvo v. State of New York, No. 9:11-cv-0909, 2013 WL 4008881, at *2, 2013 U.S. Dist. LEXIS 108490, at * *6-7 (N.D.N.Y. July 10, 2013) (district court's authority to substitute defendants in pro se complaint sua sponte is "well supported," collecting cases), report and recommendation adopted by Gonzalvo v. State of New York, No. 9:11-cv-0909, 2013 WL 4008881, 2013 U.S. Dist. LEXIS 108403 (N.D.N.Y. Aug. 2, 2013). The Clerk of Court is directed to amend the caption accordingly. --------
IV. CONCLUSION
For these reasons, it is
ORDERED that the amended complaint (Dkt. No. 7) is ACCEPTED AS FILED; and it is further;
ORDERED that the Report Recommendation (Dkt. No. 6) is ADOPTED as it applies to the amended complaint; and it is further
ORDERED that plaintiff's Fourteenth Amendment deliberate medical indifference claim is DISMISSED without prejudice and with leave to amend; and it is further
ORDERED that if plaintiff wishes to file a second amended complaint that correct the pleading defects identified with respect to his Fourteenth Amendment deliberate indifference claim, he shall do so within thirty (30) days of the date of this order; and it is further
ORDERED that any second amended complaint plaintiff submits shall be a complete pleading, which will supersede the amended complaint, and may not incorporate any portion of the original or amended complaints by reference, in accordance with Local Rule 7.1(a)(4) of the Local Rules of Practice for this District; and it is further
ORDERED that the Clerk of the Court shall add the City of Kingston as a defendant in this action and amend the caption accordingly; and it is further
ORDERED that once the City of Kingston has filed an answer, plaintiff must seek, through discovery, the identity of the Doe defendants; and it is further
ORDERED that upon receipt from plaintiff of the documents required for service of process, the Clerk of the Court shall issue a summons, together with a copy of plaintiff's amended complaint, and forward them to the United States Marshal for service upon the City of Kingston; and it is further
ORDERED that, after service of process on defendant City of Kingston, it shall file a response to the amended complaint as provided for in the Federal Rules of Civil Procedure; and it is further
ORDERED that the Clerk of Court shall mail a copy of this Memorandum-Decision and Order to plaintiff along with copies of the unpublished decisions cited in this decision.
IT IS SO ORDERED.
Dated: January 28, 2016
/s/ _________
Brenda K. Sannes
U.S. District Judge