Rosa v. Triborough Bridge and Tunnel Authority

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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

DONNA MARIE ROSA, :

as Administratrix of the Estate of Nicole Ann :

Garbellotto, deceased, :

:

Plaintiff, :

:

- against - :

: MEMORANDUM

TRIBOROUGH BRIDGE AND TUNNEL : DECISION AND ORDER

AUTHORITY, et al., :

: 18-cv-1384 (BMC)

Defendants. :

:

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

COGAN, District Judge.

This case arises from a sad incident in which a young woman, Nicole Ann Garbellotto,

died from a self-administered drug overdose. Her mother, as Administratrix, has sued the

Triborough Bridge and Tunnel Authority (the “TBTA”) and its individual officers (together, the

“TBTA Defendants”), who found her unconscious and took her to the hospital;1 the hospital

(Staten Island University Hospital, or “SIUH”) and hospital personnel who treated her (together,

the “SIUH Defendants”); and the City of New York and police officers who took custody of

Garbellotto after her discharge from the hospital (together, the “City Defendants”).

The City Defendants have moved for summary judgment, which is granted for the

reasons stated below. Although Garbellotto’s death was tragic, no reasonable juror could find in

favor of plaintiff on her federal claims, and the Court declines supplemental jurisdiction over the

remaining state law claims.

1 In its November 15, 2018 order, the Court dismissed the claims against the TBTA Defendants.

BACKGROUND

TBTA personnel found Garbellotto unresponsive in a vehicle at the Verrazano Bridge toll

plaza and placed her under arrest for DUI. Shortly thereafter, emergency medical technicians

revived Garbellotto by administering Narcan2 and transported her to SIUH. At SIUH,

Garbellotto received two more doses of Narcan and, hours later, the director of medical

toxicology at SIUH recommended that she be cleared for discharge into police custody.

Garbellotto’s discharge instructions indicated that she was stable, alert and oriented, not in

respiratory distress, had vital signs within the normal limits, and did not have a high risk of

death.

TBTA personnel then brought Garbellotto to the 120th precinct, where defendant Denis

Samuylin was at the front desk. Samuylin learned that Garbellotto had been arrested and arrived

from SIUH. TBTA personnel took Garbellotto to be photographed, fingerprinted, and searched

in front of NYPD personnel. NYPD personnel then searched Garbellotto by going through her

pockets, patting her down, shaking out her clothes, and having her walk through a metal detector;

Garbellotto had no contraband. According to NYPD personnel, Garbellotto did not mention

having any medical condition and appeared normal, coherent, not intoxicated, and not in need of

medical attention. An NYPD officer unsuccessfully attempted to give Garbellotto a retina scan;

the officer believes that Garbellotto was able to open her eyes for long enough a retina scan, but

the retina scan failed for reasons the officer cannot recall.

Garbellotto then entered her cell. Defendant Ericka Dendy, a cell attendant, noted that

Garbellotto was in good condition and gave her juice to drink when Garbellotto indicated that

she was thirsty. Dendy indicated that Garbellotto did not request any medical attention. Dendy

2Narcan is a type of medication used to block the effects of opioids. It can treat narcotic overdoses in emergency

situations.

stated that she inspected Garbellotto’s cell every half an hour, as cell attendants are required to

perform routine inspections of each cell every half an hour. Between these physical checks, cell

attendants sit in a designated desk area that has two monitors where cell attendants can monitor

the cells using surveillance cameras.

Defendant Dawn Susi-Ortiz also inspected the cells of the female detainees with another

police officer around this time. An interviewer for the New York City Criminal Justice Agency

interviewed Garbellotto and observed that she appeared normal, was coherent and cooperative,

and answered all of the interviewer’s questions. The interviewer also indicated that Garbellotto

did not request any medical attention.

Shortly after Garbellotto’s interview, defendant Nancy Heinz took over Dendy’s routine

cell inspection duties. Heinz indicated that she monitored Garbellotto every half an hour and did

not observe anything unusual for the next four hours. Approximately four hours and twenty

minutes into Heinz’s shift, Heinz noticed that Garbellotto was sitting in a strange manner, as if

she had fallen off of the bench in the cell. Heinz entered the cell, performed CPR, pulled an

alarm, and yelled for another officer to call for an ambulance.

Medical personnel arrived and noted that Garbellotto looked pale but with normal skin

temperature and no indications of trauma. They removed her to a hospital, where she was

pronounced dead of cardiac arrest.

Plaintiff then brought this action. Plaintiff brings federal claims against the City

Defendants for indifference to serious medical needs in violation of the Fourth and Fourteenth

Amendments to the United States Constitution, as well as failure to intervene to prevent that

constitutional deprivation. Plaintiff also brings state claims against some or all of the City

Defendants for wrongful death, negligence, intentional infliction of emotional distress, negligent

infliction of emotional distress, negligent hiring and training, and negligent training and

supervision.

DISCUSSION

Under Federal Rule of Civil Procedure 56, a court may grant summary judgment when

“the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” “Where the record taken as a whole could not lead a

rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.”

Matsushita Elect. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation

marks omitted). A plaintiff must put forward some “concrete evidence from which a reasonable

juror could return a verdict in his favor” to withstand a motion for summary judgment.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

I. Federal Law Claims

A. Deliberate Indifference

To prevail on a deliberate indifference claim, a plaintiff “must show that she had a

serious medical condition and that it was met with deliberate indifference.” Cuoco v. Moritsugu,

222 F.3d 99, 106 (2d Cir. 2000) (internal quotation marks omitted). To determine whether

defendants acted with deliberate indifference under the Fourteenth Amendment, courts employ

“an objective standard, i.e., whether a reasonable person would appreciate the risk to which the

detainee was subjected.” Bruno v. City of Schenectady, 727 F. App'x 717, 720 (2d Cir. 2018)

(internal quotation marks omitted). Courts also employ an objective standard to evaluate a claim

for deliberate indifference to medical needs under the Fourth Amendment. See Arum v. Miller,

331 F. Supp. 2d 99, 111 (E.D.N.Y. 2004). “This objective standard requires the Court to focus

on the circumstances confronting the police at the time of the arrest without regard to their

underlying motives or attitude towards the suspect.” Id. (internal quotation marks, citations,

alterations omitted).

Deliberate indifference entails more than negligence, but less than conduct undertaken for

the very purpose of causing harm or with knowledge that harm will result. See Farmer v.

Brennan, 511 U.S. 825 (1994). Thus, “liability for negligently inflicted harm is categorically

beneath the threshold of constitutional due process.” Kingsley v. Hendrickson, 135 S. Ct. 2466,

2472 (2015) (internal quotation marks omitted).

Here, no reasonable juror could find that City Defendants’ conduct constituted deliberate

indifference to Garbellotto’s medical needs under the Fourth or Fourteenth Amendment. To the

contrary, the individual City Defendants physically examined Garbellotto; provided her with

juice; and regularly monitored Garbellotto’s condition when she was in her cell. Her interactions

with various NYPD personnel all indicate that she appeared to be normal, and as soon as Heinz

noticed that Garbellotto appeared to require medical attention, Heinz performed CPR, pulled the

alarm, and yelled for another officer to call medical personnel, who quickly arrived to treat

Garbellotto.

There is no evidence that she requested medical attention from the City Defendants, and

there is no reason to believe any of these defendants would have refused medical attention if she

requested it. Under these circumstances, the individual City Defendants acted reasonably to

monitor Garbellotto and were reasonably attentive to her medical needs, despite Garbellotto’s

death.

Plaintiff’s arguments to the contrary are not persuasive. Plaintiff contends Samuylin

should have ordered an increase in the frequency of the physical inspections of Garbellotto’s cell

in light of her discharge from SIUH. Even if, in some cases, it may be appropriate to find that

the Constitution requires physical inspections of detainees that occur more frequently than every

half an hour, such judicial micromanagement of police supervision of detainees would be

inappropriate here. As “a layperson”, Samuylin was “entitled to rely on the opinions of the

medical staff” at SIUH, who determined that Garbellotto’s condition was stable enough for her

to be released into police custody. Phelan v. Chin, 10-cv-6344, 2012 WL 3597409, at *2

(W.D.N.Y. Aug. 20, 2012).

Plaintiff disagrees with decisions that SIUH personnel made in treating Garbellotto, but

“mere disagreement over the proper treatment does not create a constitutional claim.” Chance v.

Armstrong, 143 F.3d 698, 703 (2d Cir. 1998). Nor did the Constitution require Samuylin or any

other individual City Defendant to order additional medical treatment for Garbellotto based on

their lay assessment of her medical condition. “One can imagine the repercussions if non-

medical prison officials were to attempt to dictate the specific medical treatment to be given to

particular prisoners – for whatever reason.” Cuoco, 222 F.3d at 111.

Plaintiff also contends that Susi-Ortiz could be liable since she was present when EMTs

arrived to treat Garbellotto after Heinz called for medical assistance. Plaintiff infers that Susi-

Ortiz therefore “knew, or should have known, the risk Ms. Garbellotto was in.” To the extent

plaintiff suggests that Susi-Ortiz should have taken some additional actions to treat Garbellotto

as the EMTs arrived, plaintiff fails to identify any act that would have helped Garbellotto –

rather than merely interfering with her treatment by medical professionals – let alone any

additional action that the Constitution required Susi-Ortiz to have taken.

Moreover, plaintiff blames Heinz for her conduct between her inspections of

Garbellotto’s cell. Plaintiff speculates that Garbellotto may have fallen well before anyone

discovered her, but Heinz may not have noticed “due to the practice of cell attendants watching

TV, cell talking on the phone, looking at her phones, and doing crossword puzzles.” The record

is not clear about how often, if ever, Dendy or Heinz watch TV, use their phones, or do

crosswords while at their desk area, and there is no reason – apart from plaintiff’s speculation –

to believe that Heinz was too distracted from her monitoring duties to notice that Garbellotto had

fallen well before Heinz noticed. Heinz’s regular inspection of Garbellotto’s cell further reduces

the likelihood that she fell well before anyone noticed.

B. Failure to Intervene

“It is widely recognized that all law enforcement officials have an affirmative duty to

intervene to protect the constitutional rights of citizens from infringement by other law

enforcement officers in their presence.” Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994).

“If the Court determines that the officer's conduct did not violate a constitutional right, however,

the analysis [of a failure to intervene claim] ends.” Feinberg v. City of New York, 99-cv-12127,

2004 WL 1824373, at *4 (S.D.N.Y. Aug. 13, 2004).

Because plaintiff has not shown that any of Garbellotto’s constitutional rights were

violated, the failure to intervene claims are dismissed.

C. Qualified Immunity

“Officials are not liable for bad guesses in gray areas; they are liable for transgressing

bright lines.” Coollick v. Hughes, 699 F.3d 211, 221 (2d Cir. 2012) (internal quotation marks

omitted). Thus, qualified immunity “shields public officials performing discretionary functions

from civil liability insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known or insofar as it was

objectively reasonable for them to believe that their acts did not violate those rights.” Bradway

v. Gonzales, 26 F.3d 313, 317-18 (2d Cir. 1994) (internal citations and quotation marks omitted).

This standard protects “all but the plainly incompetent or those who knowingly violate the law.”

Malley v. Briggs, 475 U.S. 335, 341 (1986).

Here, even if plaintiff’s deliberate indifference or failure to intervene claims survived, the

individual City Defendants would be protected by qualified immunity. They physically

examined Garbellotto; provided her with juice; and regularly monitored Garbellotto’s condition

when she was in her cell. There is no evidence that Garbellotto requested medical attention, and

once Heinz discovered that Garbellotto needed such attention, she performed CPR, pulled the

alarm, and yelled for another office to call medical personnel, who quickly arrived to treat

Garbellotto. The individual City Defendants’ conduct was thus well within the scope of

qualified immunity.

D. Monell

Plaintiff brings a claim against the City of New York under Monell v. Dep't of Soc.

Servs. of City of New York, 436 U.S. 658, 654 (1978) (“[W]hen 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 … the government as an entity is responsible

under § 1983.”). However, courts dismiss Monell claims when there is no underlying

constitutional violation. See Segal v. City of New York, 459 F.3d 207 (2d Cir. 2006).

Plaintiff seeks to hold the City of New York liable under Monell for the individual City

Defendants’ purported constitutional violations. But since there was no underlying constitutional

violation, the Monell claims are dismissed.

II. State Law Claims

Under 28 U.S.C. § 1367(c), a district court may “decline to exercise supplemental

jurisdiction over a claim” if the district court “has dismissed all claims over which it has original

jurisdiction.” Indeed, the Supreme Court has directed that, except in unusual circumstances, “if

the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional

sense, the state claims should be dismissed as well.” United Mine Workers of Am. v. Gibbs, 383

U.S. 715, 726 (1966). Dismissal of the state claims avoids “[n]eedless decisions of state law,”

which “should be avoided both as a matter of comity and to promote justice between the parties,

by procuring for them a surer-footed reading of applicable law.” Id.

Thus, “[t]he strong preference in this Circuit is for district courts to decline to exercise

supplemental jurisdiction under § 1367(c)(3) when all of the federal claims are dismissed from

the suit prior to trial.” Schiffman v. Epstein, 04-cv-2661, 2009 WL 1787760, at *7 (S.D.N.Y.

June 23, 2009). When the federal claims are dismissed before trial, courts only retain

supplemental jurisdiction in unusual circumstances, including “when the remaining state law

claims are linked to unique federal interests, when dismissal of the federal claims comes days

before the commencement of trial, when the court has expended significant time in discovery

and dispositive motion practice prior to dismissal of the federal claims, and when the state law

claims do not present novel questions of state law.” Id.

Having dismissed all federal claims in this case before commencing or even scheduling

trial, the Court declines to exercise supplemental jurisdiction over the remaining claims in this

case, which are only state law claims. The state law claims, primarily based on negligence and

similar causes of action, do not implicate any federal interests and raise entirely different legal

issues than any federal claim for a constitutional violation, since “liability for negligently

inflicted harm is categorically beneath the threshold of constitutional due process.” Kingsley,

135 S. Ct. at 2472 (internal quotation marks omitted).

The City Defendants have raised statute of limitations defenses to plaintiff’s state law

claims, and – as the Court noted in its November 15, 2018 order – New York state courts are in

the best position to resolve statute of limitations defenses that arise entirely under state law.

Plaintiff’s remaining causes of action also include claims for medical malpractice against the

SIUH Defendants. Since the regulation of medical malpractice and medical malpractice

insurance is a significant interest of New York State, adjudicating medical malpractice claims is

more appropriate for state than for federal court. See All. of Am. Insurers v. Cuomo, 854 F.2d

591, 600 (2d Cir. 1988).

Further, the Court’s prior involvement in this case does not constitute an extraordinary

circumstance that would prevent the Court from declining to exercise supplemental jurisdiction.

The Court has only had minimal involvement in the discovery in this case, and the Court has not

determined the admissibility of plaintiff’s proposed expert witness or issued any evidentiary

rulings in this case. The Court’s prior involvement in dispositive motion practice was limited to

its November 15, 2018 order resolving a motion to dismiss by the TBTA Defendants that related

solely to the TBTA Defendants’ interactions with Garbellotto and raised separate issues from

any remaining state claims in this case.3

3 In the November 15, 2018 order, the Court also dismissed all federal claims against the TBTA Defendants, and

declined supplemental jurisdiction over plaintiff’s state claims against these defendants in light of the dismissal of

the federal claims. Now that all federal claims have been dismissed, there is an even more compelling justification

for declining supplemental jurisdiction over the state claims here than there was in connection with the November

15, 2018 order.

CONCLUSION

The City Defendants’ [72] motion for summary judgment is granted with prejudice with

respect to the federal claims and without prejudice with respect to the state claims. All

remaining state claims in this action are dismissed without prejudice. The SIUH Defendants’

[86] motion to exclude expert witness testimony is denied as moot. The Clerk is directed to enter

judgment accordingly.

SO ORDERED.

USD

Dated: Brooklyn, New York

August 6, 2019

11