Langer v. The County Of Suffolk

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

---------------------------------------X

ELIZABETH LANGER a/k/a ELIZABETH

FRANKEL,

Plaintiff, MEMORANDUM & ORDER

15-CV-0668(JS)(GRB)

-against–

FILED

PATRICIA BUERKLE, STEPHEN JOHN, M.D., CLERK

and VINCENT GERACI, M.D.,

8/8/2019 12:05 pm

Defendants. U.S. DISTRICT COURT

---------------------------------------X EASTERN DISTRICT OF NEW YORK

APPEARANCES LONG ISLAND OFFICE

For Plaintiff: Christopher S. Olson, Esq.

434 New York Avenue

Huntington, New York 11743

For Defendant: Arlene S. Zwilling, Esq.

Suffolk County Attorney

H. Lee Dennison Building-Fifth Floor

100 Veterans Memorial Highway

P.O. Box 6100

Hauppauge, New York 11788-0099

SEYBERT, District Judge:

Plaintiff Elizabeth Langer a/k/a Elizabeth Frankel

(“Plaintiff”) alleges that defendants Patricia Buerkle, Stephen

John, M.D., and Vincent Geraci, M.D., all medical employees at the

Suffolk County Correctional Facility (“SCCF”) (collectively,

“Defendants”) denied her adequate medical care in violation of 42

U.S.C. § 1983. She also alleges a state law medical malpractice

claim. Presently pending before the Court is Defendants’ motion

for summary judgment. (Def. Mot., D.E. 56.) For the following

reasons, Defendants’ motion is GRANTED.

BACKGROUND

I. Factual Background1

Plaintiff was incarcerated at SCCF in March 2014,

serving a sentence for criminal possession of a controlled

substance. On April 9, 2014, she fell and injured her foot. (Def.

56.1 Stmt., D.E. 44, ¶¶ 1-2.) At approximately 6:30 a.m., non-

party Margaret Mungo, a registered nurse with the Jail Medical

Unit (“JMU”), applied an ice pack and sent Plaintiff to Peconic

Bay Medical Center (“Peconic”), a private hospital. (Def. 56.1

Stmt. ¶ 3.) Doctors performed X-rays indicating that she had a

severely comminuted fracture2 of her right calcaneus (heel bone).

She was not admitted--Peconic staff wrapped her foot in an Ace

bandage, prescribed her pain medication, and gave her crutches.

She was released at approximately 10:00 a.m. (Def. 56.1 Stmt. ¶¶

4-6.)

Plaintiff was given discharge instructions. (Def. 56.1

Stmt. Ex. D, D.E. 44-4 (“Discharge Instructions”).) They included

three pages of standard forms. Page one defined an “Ace Bandage”

and explained how to apply one. Page two advised on walking with

crutches. Page three gave general instructions for fractures.

1 Unless noted, all facts are undisputed.

2 A comminuted fracture occurs when a bone breaks into more than

two pieces.

The fourth and final page listed the following “Special Advice

for: Elizabeth Frankel”:

Call John Brennan Dr today or the next

business day for an appointment to be seen.

When you call to make the appointment, tell

the secretary that you were referred from this

facility. When you go to see the doctor, bring

these instructions with you.

YOU HAVE A CALCANEUS FRACTURE COMMINUTED. YOU

NEED AN ORTHPEDIC (sic) EVALUATION.

NO DRIVING WITH PERCOCET, IT IS SEDATING.

FOLLOW UP WITH ORTHOPEDICS THIS WEEK.

FOLLOW UP WITH JAIL MEDICAL IN 1 DAY.

RETURN FOR ANY WORSENING, CHANGES OR ANY OTHER

CONCERNS.

RETURN FOR PROBLEMS WITH FOLLOW UP.

(Discharge Instructions at ECF p. 5 (capitalization in original).)

That same day, when she returned to the JMU, at

approximately 11:00 a.m., she was seen by defendant Patricia

Buerkle, a nurse practitioner. Buerkle ordered prescription

strength ibuprofen and ice. She noted Peconic’s diagnosis and

follow-up recommendation on Plaintiff’s medical chart. (Def. 56.1

¶ 8; Def 56.1 Stmt. Ex. E, D.E. 44-5 (“April 9 Chart”).) Because

Peconic recommended Plaintiff follow up with an orthopedic

specialist, she also completed a consultation request for

Plaintiff to see an outside orthopedist. There are no orthopedists

on staff in the JMU. If necessary, the JMU requests appointments

with outside medical providers, and those outside providers choose

the date and time of an inmate’s appointment. (Def. 56.1 Stmt.

¶ 9-10.)

Ten days later, on April 19, 2014, defendant Stephen

John, M.D. saw Plaintiff in the JMU. Plaintiff was on crutches

and stated that she was in pain and the ibuprofen was not working.

John changed her pain medication and ordered a sonogram to rule

out deep vein thrombosis. He noted in her medical chart that the

request for an orthopedic consultation was still pending. (Def.

56.1 Stmt. ¶ 10;3 Def. 56.1 Stmt. Ex. H, April 19 Progress Note,

D.E. 44-8.) A sonogram performed one day later showed no deep

vein thrombosis. John did not see Plaintiff again. (Def. 56.1

Stmt. ¶¶ 11-12.)

On April 30, Buerkle saw Plaintiff again. She noted on

the chart that Plaintiff was upset she had not been seen by an

orthopedist and that she told Plaintiff to sign a release so her

chart could be forwarded to a consulting orthopedist. She also

discussed the case with non-party Dr. Crowley, a JMU employee.

They sent Plaintiff back to the Emergency Room at Peconic because

she had not yet seen an outside orthopedist. (Def. 56.1 Stmt.

¶¶ 13-14.) Peconic personnel performed a CT scan, which still

indicated the fracture. In her discharge instructions, she was

3 There are 2 number 10 paragraphs. This cite is the second

paragraph 10.

again referred to Dr. John Brennan and told to call him that day

or the next for an appointment. (Def. 56.1 Stmt. ¶ 15.)

When Plaintiff returned to the JMU, non-party Dr. Dennis

Russo noted her second emergency room visit in her chart. He

further noted Plaintiff’s statement that since she was scheduled

to be released from jail in two days, following up was a “moot

point” and that she was “OK with continuing her present meds and

setting up a follow up in community after release.” (Def. 56.1

Stmt. ¶ 16.)

The next day, May 1, 2014--before her release--Plaintiff

had her outside consultation with Brennan. He noted there had

been a “delay in follow up.” He examined her and “reviewed the

case with Dr. Gamez who [felt] that she may be a candidate for

surgical intervention. [He] referred her to [Dr. Gamez] for

consultation.” (Def. 56.1 Stmt. ¶ 17; Def. 56.1 Stmt. Ex. O,

Brennan Notes, D.E. 44-15.)

On May 2, 2014, Plaintiff was released from SCCF. She

did not see Brennan or Gamez again. (Def. 56.1 Stmt. ¶¶ 18-19.)

Approximately two weeks after leaving SCCF, she saw Dr. Edward

Kormylo. He noted that she required open reduction and internal

fixation. He further noted that she was “contemplating surgical

management” but that he would “likely need to hold [off] on surgery

until further consolidation of fracture.” (Def. 56.1 Stmt. ¶ 21;

Def. 56.1 Stmt. Ex. Q, Kormylo Notes, D.E. 44-17.) He ultimately

performed surgery on Plaintiff’s foot on June 2, 2014. When she

was discharged from the hospital, she had no infection. However,

Kormylo had documented in his surgical report that she had not

followed preoperative instructions to stop smoking; that she

understood continuing intravenous drug use could lead to

infection; and that she was aware that failure to comply with his

instructions could lead to loss of a limb. (Def. 56.1 Stmt. ¶ 22;

Def. 56.1 Stmt. Ex. R, Surgical Report, D.E. 44-18.) Plaintiff

developed an infection after the initial surgery which required

multiple follow-up procedures with Kormylo. (Def. 56.1 Stmt. ¶ 24;

Pl. 56.1 Stmt., D.E. 44-22, ¶ 6.)

When deposed, Kormylo testified that Defendants’ actions

failed to satisfy “the standard of care for humanity.” (Pl. 56.1

Stmt. ¶¶ 8-9; Pl. 56.1 Stmt. Ex. 9, Kormylo Dep., 59:11-24.)

Defendants’ orthopedic expert, Dr. David Weissberg, testified that

the “typical treatment protocol” for a heel fracture is, assuming

the patient is healthy and the skin is in good condition, to

“perform [an] open reduction and internal fixation” “approximately

two weeks” after injury. (Pl. 56.1 Stmt. Ex. 5, Weissberg Dep.,

13:14-14:4.) He also noted that “[i]n general, calcaneal fractures

are not treated immediately [because] there is a very high

complication rate in terms of infection . . . if you operate on a

fracture such as this . . . too quickly . . . .” (Weissberg Dep.

13:6-11.)

Plaintiff alleges that she “sustain[ed] severe and

serious personal injuries” and “under[went] eight surgeries due to

complications as a result of the delay in treatment and

infections.” (Am. Compl., D.E. 48, ¶¶ 6, 20.) She argues that

Defendants’ “failure to provide the required care . . . constituted

deliberate indifference to [her] serious medical needs . . . and

a departure from good and accepted medical standards . . . .” (Am.

Compl. ¶ 19.) Plaintiff does not allege any current existing

injury related to these events.

II. Procedural History

Plaintiff initially filed a Complaint on February 10,

2015. (Compl., D.E. 1.) She filed an Amended Complaint on

April 12, 2016 (Am. Compl., D.E. 22) and then, at the direction of

this Court, a complete version of the Amended Complaint on April

27, 2019 (Am. Compl., D.E. 48.) Defendants filed their motion for

summary judgment on September 20, 2018 and Plaintiff filed her

opposition on October 22, 2018 (Pl. Opp., D.E. 57). Defendants

replied on November 2, 2018. (Def. Reply, D.E. 58.)

DISCUSSION

I. Legal Standard

A. Summary Judgment

Summary judgment will be granted where the movant

demonstrates that there is “no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). A genuine factual issue exists where “the

evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed 2d 202 (1986). In

determining whether an award of summary judgment is appropriate,

the Court considers the “pleadings, deposition testimony, answers

to interrogatories and admissions on file, together with any other

firsthand information including but not limited to affidavits.”

Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011).

The movant bears the burden of establishing that there

are no genuine issues of material fact. Gallo v. Prudential

Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994). Once

the movant makes such a showing, the non-movant must proffer

specific facts demonstrating “a genuine issue for trial.” Giglio

v. Buonnadonna Shoprite LLC, No. 06-CV-5191, 2009 WL 3150431, at

*4 (E.D.N.Y. Sept. 25, 2009) (internal quotation marks and citation

omitted). Conclusory allegations or denials will not defeat

summary judgment. Id. However, in reviewing the summary judgment

record, “‘the court is required to resolve all ambiguities and

draw all permissible factual inferences in favor of the party

against whom summary judgment is sought.’” Sheet Metal Workers’

Nat’l Pension Fund v. Vadaris Tech. Inc., No. 13-CV-5286, 2015 WL

6449420, at *2 (E.D.N.Y. Oct. 23, 2015) (quoting McLee v. Chrysler

Corp., 109 F.3d 130, 134 (2d Cir. 1997)).

B. Deliberate Indifference to Medical Needs

As Plaintiff was a prisoner in custody4 at the relevant

time here,

[t]o defeat summary judgment, [she is] obliged

to adduce evidence that defendants were

deliberately indifferent to a serious medical

need. This standard consists of both

objective and subjective components.

Objectively, the alleged deprivation must be

sufficiently serious, in the sense that a

condition of urgency, one that may produce

death, degeneration, or extreme pain exists.

Subjectively, the charged official must act

with a sufficiently culpable state of mind,

i.e., something more than mere negligence and

akin to criminal recklessness.

Simpson v. Oakes, 640 F. App’x 86, 87–88 (2d Cir. 2016) (internal

quotation marks and citations omitted).

As to the objective prong, “[i]f the prisoner is

receiving on-going treatment and the [alleged] offending conduct

is an unreasonable delay or interruption in that treatment, the

seriousness inquiry focuses on the challenged delay or

4 Though Plaintiff makes claims under the Eighth and Fourteenth

Amendments, as a prisoner in custody, her claims are analyzed

under the Eighth Amendment only. Compare Hathaway v. Coughlin,

37 F.3d 63, 66 (2d Cir. 1994) (“The Eighth Amendment . . .

applies to prison officials when they provide medical care to

inmates”) with Valdiviezo v. Boyer, 752 F. App’x 29, 32 (2d Cir.

2018) (“The district court erroneously analyzed [the

plaintiff’s] deliberate indifference to medical needs claims

under the Eighth Amendment. [The plaintiff’s] claims should be

analyzed under the Fourteenth Amendment because he was a

pretrial detainee at the time of alleged incidents.”).

interruption in treatment rather than the prisoner’s underlying

medical condition alone.” Villafane v. Sposato, No. 16-CV-3674,

2017 WL 4179855, at *19 (E.D.N.Y. Aug. 22, 2017) (quoting

Salahuddin v. Goord, 467 F. 3d 263, 280 (2d Cir. 2006)) (emphasis

added), R&R adopted, 2017 WL 4157220 (E.D.N.Y. Sept. 15, 2017);

cf. Salahuddin, 467 F. 3d at 280 (“if the unreasonable medical

care is a failure to provide any treatment for an inmate’s medical

condition, courts examine whether the inmate’s medical condition

is sufficiently serious”) (emphasis added). “In general, where

temporary delays or interruptions in the provision of medical

treatment have been found to satisfy the objective seriousness

requirement in this Circuit, they have involved either a needlessly

prolonged period of delay, or a delay which caused extreme pain or

exacerbated a serious illness.” Villafane, 2017 WL 4179855 at *20

(internal quotation marks and citations omitted).

“Although a delay in providing necessary medical care

may in some cases constitute deliberate indifference, [the Second

Circuit] has reserved such a classification for cases in which,

for example, officials deliberately delayed care as a form of

punishment; ignored a life-threatening and fast-degenerating

condition for three days; or delayed major surgery for over two

years.” Demata v. N.Y. State Corr. Dep’t of Health Servs., 198

F.3d 233, at *2 (2d Cir. 1999) (internal quotation marks and

citations omitted) (collecting cases). An inmate’s belief that

“something more should have been done to treat his [or her]

injuries is not a sufficient basis for a deliberate indifference

claim.” Id.

“The subjective component of deliberate indifference

requires a plaintiff to establish that a defendant ‘kn[e]w of and

disregard[ed] an excessive risk to [his] health or safety.’”

Pizarro v. Gomprecht, No. 10-CV-4803, 2013 WL 990998, at *11

(E.D.N.Y. Feb. 13, 2013), R&R adopted, 2013 WL 990997 (quoting

Chance v. Armstrong, 143 F. 3d 698, 702 (2d Cir. 1998)) (further

citations omitted) (alterations in original). “Because the Eighth

Amendment is not a vehicle for bringing medical malpractice claims,

nor a substitute for state tort law, not every lapse in prison

medical care will rise to the level of a constitutional violation.”

Smith v. Carpenter, 316 F. 3d 178, 184 (2d Cir. 2003). “A showing

of medical malpractice is . . . insufficient to support an Eighth

Amendment claim unless the malpractice involves culpable

recklessness, i.e., an act or a failure to act by the prison doctor

that evinces a conscious disregard of a substantial risk of serious

harm.” Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003)

(internal quotation marks and citation omitted).

“Where a dispute concerns not the absence of help, but

the choice of a certain course of treatment, or evidences mere

disagreement with considered medical judgment, [courts] will not

second guess the doctor.” Pizarro, 2013 WL 990998 at *13. “[M]ere

differences of opinion between the prisoner and the defendants

concerning the proper course of treatment” do not rise to a

constitutional violation. Demata, 198 F. 3d at *2.

II. Defendants’ Actions

A. Nurse Practitioner Buerkle

Because Defendants are sued in their individual

capacities,5 their liability is premised on a showing that they

personlly acted with deliberate indifference. See Hernandez, 341

F. 3d at 144. On the day Plaintiff was injured, when she returned

from Peconic, Buerkle examined her, iced her heel, and prescribed

pain medication. She was aware of Peconic’s recommendation that

Plaintiff follow up with a specialist, and immediately completed

a consultation request. Approximately three weeks later, Buerkle

saw Plaintiff again. She noted Plaintiff’s complaints about not

having yet seen a specialist and had her sign a release so her

chart could be forwarded to a specialist. She discussed

Plaintiff’s case with another doctor on staff, Crowley, and they

decided to send Plaintiff back to Peconic because she had not yet

seen a specialist.

Buerkle did not show deliberate indifference to

Plaintiff’s medical needs. To the contrary, she appears to have

5 Plaintiff originally named the County of Suffolk as a

defendant. By stipulation, all claims against the County were

discontinued with prejudice. (Order Dismissing Parties,

D.E. 55.)

taken the steps within her power to address Plaintiff’s issues.

The JMU did not have an orthopedic specialist on site. Buerkle

thus facilitated Plaintiff’s consultation by completing a request

form, completing a release form, and discussing the case with Dr.

Crowley. Buerkle followed established protocol. See Hernandez,

341 F. 3d at 148 (nurse who repeatedly attempted to schedule

physical therapy for inmate and received rejections from outside

institutions was not deliberately indifferent, and not personally

responsible for what “may be an unfortunate institutional

failure”). Buerkle also provided care with the ice and pain

medication.

As to the objective prong, at most, Plaintiff has

demonstrated that she received an orthopedic consultation not

within one week, as recommended, but within three weeks--a two-

week delay. Further, once she saw the specialist Brennan three

weeks after her injury, he only opined that “she may be a candidate

for surgical intervention.” (See Brennan Notes.) Plaintiff’s

expert testified that if her injury had been treated earlier, it

potentially could have been addressed with a less invasive

procedure, and that he “believe[d]” it would have “significantly

reduced the likelihood of the development of the infections that

[Plaintiff] developed.” (Kormylo Dep. 58:15-59:2.) Defendants’

expert testified similarly and noted that the “optimal” time to

treat Plaintiff’s fracture would have been at “approximately two

weeks.” (Weissberg Dep. 13:3-7; 13:23-14:4.) He explained that

the less invasive procedure had a “decreased” risk of infection.

(Weissberg Dep. 24:24-25:7.) He only stated that based upon his

review of her medical records, Plaintiff could “possibly” have

been a candidate for the less invasive procedure. (Weissberg Dep.

14:13-20.).

Plaintiff argues that there is “unanimity of opinion

from every medical expert who gave testimony during the discovery

phase of this action: namely, [she] sustained a severely comminuted

fracture of the calcaneus and this injury required surgical

treatment within two weeks.” (Pl. Opp. at 15 (emphasis added).)

This claim mischaracterizes the testimony and the record as a

whole. No medical professional stated that Plaintiff required

surgery in two weeks: not the Peconic doctor who initially examined

her and prepared discharge instructions,6 not the orthopedic

specialist Dr. Brennan, not Plaintiff’s surgeon and expert Dr.

Kormylo,7 and not Defendants’ expert Dr. Weissberg. Clearly, this

6 While Plaintiff makes much of the fact that the instruction to

“follow up with orthopedics this week” was capitalized (Pl. Opp.

at 2, 6, 11, 15, and 16), she ignores that many of the

instructions were capitalized, including the directive that she,

an inmate confined in a correctional facility, “no[t] driv[e]

with Percocet.” (Discharge Instructions at 5.) The Court thus

does not find the capitalization argument persuasive.

7 To the extent Dr. Kormylo testified that JMU employees’ actions

did not meet the standard of care “for humanity,” the Court

finds this hyperbolic statement to be tempered by his own

admission that he had no familiarity with the level of care a

is not a case where officials deliberately delayed care as

punishment, ignored a life threatening and fast-degenerating

condition, or delayed major surgery for years. See Demata, 198 F.

3d at *2. Rather, it is a “difference[ ] of opinion between

[Plaintiff] and the defendants concerning the proper course of

treatment.” Id.

Further, while Plaintiff surmises that “[s]urgery . . .

does not come cheap so that one cannot avoid the reasonable

inference that these Defendants were in no hurry to saddle their

employer with a heavy expense when [her] release date was so near,”

(Pl. Opp. at 6), “[c]onclusory allegations, conjecture, and

speculation . . . are insufficient to create a genuine issue of

fact.” Pizarro, 2013 WL 990998 at *12 (prisoner’s allegation that

facility did not approve his surgery because the state could not

afford it was insufficient to raise a triable issue of material

fact). Plaintiff points to no specific record facts that could

allow this Court to draw an inference in her favor that the

Defendants postponed her referral to save money. Accordingly,

Plaintiff has not established the objective or subjective

components of deliberate indifference as to Buerkle.

correctional facility is legally required to provide. (Kormylo

Dep. 59:7-24.)

B. Dr. John

John saw Plaintiff once, ten days after her injury. When

Plaintiff complained that she was in pain and the ibuprofen

prescribed by Buerkle was not working, he changed her medication

and ordered a sonogram. He noted in her chart that the request

for a consultation was pending. Again, at the time John saw

Plaintiff, no other medical professional had stated that she

required surgery. For the same reasons discussed as to Buerkle,

the Court concludes that John did not display deliberate

indifference to Plaintiff’s medical needs.

C. Dr. Geraci

“Absent some personal involvement by [a] supervisory

official in the allegedly unlawful conduct of his subordinates, he

cannot be liable under section 1983.” Hernandez, 341 F.3d at 144–

45. Supervisor liability can be established in one or more of the

following ways:

(1) actual direct participation in the

constitutional violation, (2) failure to

remedy a wrong after being informed

through a report or appeal, (3) creation

of a policy or custom that sanctioned

conduct amounting to a constitutional

violation, or allowing such a policy or

custom to continue, (4) grossly

negligent supervision of subordinates

who committed a violation, or (5) failure

to act on information indicating that

unconstitutional acts were occurring.

Id. at 145. It is undisputed that Geraci, the chief of the JMU,

never examined Plaintiff. She argues, however, that he had

personal involvement because he testified that “we knew the patient

needed a referral and we made the referral.” (Pl. Opp. at 11.)

According to Plaintiff, Geraci’s use of “the pronoun ‘we’ clearly

. . . can be interpreted to include himself, thereby making himself

a part of the group that failed to obtain an orthopedic consult”

in time. (Pl. Opp. at 11.) She claims Geraci had “actual or

constructive notice of unconstitutional practices and

demonstrate[d] gross negligence or deliberate indifference in

failing to act.” (Pl. Opp. at 14 (quoting Meriwether v. Coughlin,

879 F. 2d 1037 (2d Cir. 1989).)

The Court does not find supervisor liability. First,

the Court finds no underlying violation for the reasons set forth

above. Second, even if the Court had found that Buerkle or John

violated Plaintiff’s constitutional rights, Plaintiff has offered

no basis to conclude that Geraci (1) actually directly participated

in a constitutional violation, (2) failed to remedy a wrong after

being informed through a report or appeal, (3) created a policy or

custom that sanctioned conduct amounting to a constitutional

violation, or allowed such a policy or custom to continue, (4) was

grossly negligent in supervising subordinates who committed a

violation, or (5) failed to act on information indicating that

unconstitutional acts were occurring. Thus, Geraci’s supervision

was not deliberately indifferent. See Hernandez, 341 F. 3d at

145.

In sum, while Defendants did not bring Plaintiff to a

specialist within one week, over the course of the three weeks

before her release, they: examined her multiple times, listened to

and noted her complaints, iced her injury, prescribed medication,

changed her medication when she reported it was not working,

requested a consultation, followed up with the request and had her

sign a release, ordered a sonogram to rule out other injuries, and

sent her back to the hospital to receive additional care. Notably,

when Plaintiff was released and had control over her own medical

care, she did not see Kormylo for two weeks--approximately the

same amount of delay she alleges amounted to deliberate

indifference from Defendants. The Court thus finds that Defendants

are entitled to summary judgment.

III. Qualified Immunity

Plaintiff argues that if summary judgment in favor of

Defendants is denied as to deliberate indifference, then it would

be “entirely illogical to separately grant summary judgment on

qualified immunity grounds.” (Pl. Opp. at 22.) This Court has

granted summary judgment in favor of Defendants, but will briefly

discuss qualified immunity arguments in the alternative.

“Qualified immunity will defeat a federal claim unless

a plaintiff pleads facts showing (1) that the official violated a

statutory or constitutional right, and (2) that the right was

clearly established at the time of the challenged conduct.”

Gonzalez v. Hasty, 755 F. App’x 67, 69 (2d Cir. 2018) (internal

quotation marks and citation omitted). “The doctrine is broad in

scope, and as the Supreme Court has repeated on several occasions,

qualified immunity protects all but the plainly incompetent or

those who knowingly violate the law.” Jones v. Rivera, No. 16-

CV-4495, 2017 WL 2389591, at *3 (E.D.N.Y. June 1, 2017).

Although Plaintiff conclusorily argues that Defendants

were deliberately indifferent and thus qualified immunity should

not attach, she points to no case demonstrating that a two-week

delay in follow-up with an orthopedic referral rises to a

constitutional violation. At most, she submits that “far less

serious injuries/conditions (i.e. migraine headaches) have been

found to meet the objective prong of serious medical needs.” (Pl.

Opp. at 16.) This is insufficient. “While qualified immunity

does not require a case directly on point for a right to be clearly

established, existing precedent must have placed the statutory or

constitutional question beyond debate.” Gonzalez, 755 F. App’x at

69 (internal quotation marks and citation omitted). “In practice,

this means that officials are not liable for bad guesses in gray

areas; they are liable for transgressing bright lines.” Jones,

2017 WL 2389591 at *3-4 (internal quotation marks and citations

omitted) (explaining that “the dispositive question is whether the

violative nature of particular conduct is clearly established . .

. in light of the specific context of the case, not as a broad

general proposition.”) (alterations in original; internal

quotation marks and citation omitted). The Court finds it is far

from “beyond debate” that Defendants actions here amounted to an

Eighth Amendment violation, as explained in more detail in the

previous discussion. As Plaintiff has not demonstrated that

Defendants violated a clearly established constitutional right,

they are entitled to qualified immunity.

IV. State Law Claims

As a result of the Court’s conclusions as to Plaintiff’s

constitutional claims, only Plaintiff’s state law claims for

medical malpractice remain. “Although the dismissal of state law

claims is not required when the federal claims in an action are

dismissed, a federal court may decline to exercise supplemental

jurisdiction over the state law claims pursuant to 28 U.S.C.

§ 1367(c)(3).” Manginelli v. Homeward Residential, Inc., No. 13-

CV-2334, 2013 WL 6493505 (E.D.N.Y. Dec. 9, 2013) (citations

omitted). The Court has weighed the relevant factors in exercising

its discretion in this regard--i.e., the values of judicial

economy, convenience, fairness, and comity--and in light of the

dismissal of Plaintiff’s federal claims, the Court declines to

exercise supplemental jurisdiction over Plaintiff’s state law

medical malpractice claims. As a result, the Court does not reach

the parties’ arguments regarding a timely Notice of Claim under

New York General Municipal Law § 50.

CONCLUSION

For the foregoing reasons, Defendants’ summary judgment

motion (D.E. 56) is GRANTED in its entirety. Plaintiff’s

constitutional claims are DISMISSED with prejudice and her state

law medical malpractice claims are DISMISSED without prejudice to

refiling in state court. The Clerk of the Court is directed to

enter judgment accordingly and mark this case CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERT______

Joanna Seybert, U.S.D.J.

Dated: August 8 , 2019

Central Islip, New York