Mosquera v. Nassau Health Care Corporation

FILED _. □□□□ □□

IN CLERK'S OFFICE RD

U.S. DISTRICT COURT E.D.NLY. □□

* DEC 04 209 *

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK BROOKLYN OFFICE

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VALENTINO MOSQUERA,

Plaintiff,

MEMORANDUM AND ORDER

- against - 19-CV-853 (RRM) (RML)

NASSAU HEALTH CARE CORPORATION; NASSAU

COUNTY CORRECTIONAL CENTER;

CORRECTIONAL HEALTH SERVICES; NASSAU

COUNTY CORRECTIONAL SHERIFF

DEPARTMENT; RAYBROOK F.C.I.; DR. DONNA

HENIG; DR. MONTERO; and DR. MICHEL LONG,

Defendants.

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ROSLYNN R. MAUSKOPF, United States District Judge.

Plaintiff Valentino Mosquera brings this action pro se, principally alleging that he

received inadequate medical care during his detention at Nassau County Correctional Center.

(Compl. (Doc. No. 1).) Because Mosquera was incarcerated when he filed this action, the Court

reviews the complaint sua sponte pursuant to 28 U.S.C. § 1915A, as well as the in forma

pauperis statute, 28 U.S.C. § 1915. Mosquera’s application to proceed in forma pauperis is

granted, (IFP Mot. (Doc. No. 8)), but the Court will recover the full filing fee in installments

pursuant to 28 U.S.C. § 1915(b). For the reasons set forth below, the action is dismissed without

prejudice and with leave to replead.

BACKGROUND

The following facts are drawn from the complaint and are assumed true for the purposes

of this Order. At the pleadings stage of the proceeding, the Court assumes the truth of “all well-

pleaded, nonconclusory factual allegations” in the complaint. Kiobel v. Royal Dutch Petroleum

Co., 621 F.3d 111, 124 (2d Cir. 2010) (citing Ashcroft v. Igbal, 556 U.S. 662, 680 (2009)), aff'd,

569 U.S. 108 (2013).

Mosquera was injured on January 9, 2019, when he was transported from Raybrook

Federal Correctional Institution (“F.C.I.”) to the Nassau County Correctional Center by

personnel from the Nassau County Sheriff's Department. (Compl. at 4.) Mosquera alleges that

the Nassau County Sheriff's Department picked him up from Raybrook F.C.1., though he does

not identify any particular individuals. (/d.) Mosquera alleges that “the sheriff’ was assisting

him to exit the transport vehicle because his hands were cuffed and his feet were shackled. (/d.)

When “the sheriff lost his grip” on Mosquera’s arm, Mosquera fell, twisting his ankle. (/d.)

Mosquera’s ankle was black and blue, and swollen. (/d.) He informed the medical staff of his

injury when he arrived at the Nassau County Correctional Center, and an unnamed individual

gave him an icepack and told him that he would be scheduled for X-rays. (/d.) That week,

Mosquera was required to use stairs for meals. (/d.) Mosquera alleges that “after a week of

living in excrusiating [sic] pain and complaining to the medical staff,” he was “walked to

medical” where X-rays of his right ankle were performed. (/d.) The X-rays revealed that

Mosquera’s ankle was broken and that the bones had shifted “from being forced to walk on it.”

(/d.) Dr. Henig told Mosquera that surgery was required, and Dr. Montero placed a cast on his

ankle as a temporary measure. (/d.) However, when Mosquera showered, the cast got wet and

he was subsequently transported to Nassau University Hospital to have the cast removed. Dr.

Long examined Mosquera and stated that a cast should never have been used. (/d.)

Mosquera filed a form civil rights complaint in this Court in February 2019. It is not

entirely clear which defendants Mosquera intends to sue. While the caption on the first page of

the complaint lists several municipal entities as defendants, it is not clear whether Mosquera

intends to name Nassau County Correctional Center and Correctional Health Services, or Nassau

County Correctional Center Correctional Health Services. (Compl. at 1.) Moreover, on the

second page of the complaint, Mosquera only lists Drs. Henig, Montero, and Long as the

defendants; there is no mention of the municipal entities. (/d. at 2.)!

Mosquera seeks $500,000 in damages for the pain and suffering and medical negligence

he experienced “in Nassau County.” (/d. at 5.) He alleges that he will not be able to work, run,

or exercise for up to a year, and that he will require physical therapy. (/d.)

STANDARD OF REVIEW

The Prison Litigation Reform Act (““PLRA”) requires a district court to screen a civil

complaint brought by a prisoner against a governmental entity or its agents and dismiss the

complaint, or any portion of the complaint, if the complaint is “frivolous, malicious, or fails to

state a claim upon which relief may be granted.” 28 U.S.C. § 1915A(b)(1); see also Liner v.

Goord, 196 F.3d 132, 134 & n.1 (2d Cir. 1999) (noting that under the PLRA, sua sponte

dismissal of frivolous prisoner complaints is not only permitted, but mandatory). Similarly,

pursuant to the in forma pauperis statute, 28 U.S.C. § 1915, the Court must dismiss a complaint,

or any portion thereof, if it 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 from a defendant who

is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). An action is deemed frivolous when it

“lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the

complaint.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citations

omitted),

After filing the complaint, Mosquera filed a letter, dated February 20, 2019, stating that he would like to add

Nassau University Medical Center as a defendant. (PI.’s Letter (Doc. No. 5) at 2.) On February 26, 2019, the pro se

office sent Mosquera a letter providing information on how to file an amended complaint. (Doc. No. 6.) Mosquera

has not filed an amended complaint. As set forth below, the Court grants Mosquera leave to file an amended

complaint within 30 days of the date of this Order.

In reviewing the complaint, the Court is mindful that pro se submissions are held to “less

stringent standards than formal pleadings drafted by attorneys.” Erickson v. Pardus, 551 U.S.

89, 94 (2007); see also Ceara v. Deacon, 916 F.3d 208, 213 (2d Cir. 2019). The Court is

required to read the pro se complaint liberally and interpret it to raise the strongest arguments it

suggests. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Ahlers v. Rabinowitz, 684 F.3d 53, 60 (2d

Cir. 2012). Still, while courts must read pro se complaints with “special solicitude,” Triestman

v. Fed. Bureau of Prisons, 470 F.3d 471, 474-76 (2d Cir. 2006) (internal quotation marks

omitted) (citations omitted), a complaint must plead enough facts, “accepted as true, to state a

claim to relief that is plausible on its face.” Cohen v. Rosicki, Rosicki & Assocs., P.C., 897 F.3d

75, 80 (2d Cir. 2018) (internal quotation marks omitted) (quoting Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009)). “A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” /qgbal, 556 U.S. at 678 (citation omitted).

DISCUSSION

Mosquera’s claims are cognizable under 42 U.S.C. § 1983, which provides a cause of

action for the deprivation of civil rights by state officials. To sustain a claim under § 1983, a

plaintiff must allege two essential elements. First, “the conduct complained of must have been

committed by a person acting under color of state law.” Pitchell v. Callan, 13 F.3d 545, 547 (2d

Cir. 1994) (citation omitted). Second, “the conduct complained of must have deprived a person

of rights, privileges, or immunities secured by the Constitution or laws of the United States.” □□□

(citation omitted). Further, a plaintiff seeking to recover money damages under § 1983 must

allege the direct or personal involvement of each of the named defendants in the alleged

constitutional deprivation. See Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010); Farrell v.

.

Burke, 449 F.3d 470, 484 (2d Cir. 2006). It is well established that a municipality cannot be held

liable under § 1983 on a respondeat superior theory. See Monell v. Dep’t of Soc. Servs. of the

City of New York, 436 U.S. 658, 690-91 (1978); Roe v. City of Waterbury, 542 F.3d 31, 36 (2d

Cir. 2008); Alwan v. City of New York, 311 F. Supp. 3d 570, 587 (EDN.Y. 2018) (Ҥ 1983 does

not authorize respondeat-superior liability . . . .” (citations omitted)).

I. Municipal Liability .

To prevail on a § 1983 claim against a municipality, a plaintiff must show “that ‘action

pursuant to official municipal policy’ caused the alleged constitutional injury.” Cash v. Cty. of

Erie, 654 F.3d 324, 333 (2d Cir. 2011) (quoting Connick v. Thompson, 563 U.S. 51, 60 (2011)).

Local governments may “be sued for constitutional deprivations visited pursuant to

governmental ‘custom’ even though such a custom has not received formal approval through the

body’s official decisionmaking channels.” Monell, 436 U.S. at 690-91. However, proof ofa

single incident of unconstitutional activity is insufficient to impose liability on a municipality

unless proof of the incident includes evidence that it was caused by an existing, unconstitutional

municipal policy that can be attributed to a policymaker. City of Oklahoma City v. Tuttle, 471

U.S. 808, 823 (1985).

Here, Nassau County Correctional Center, Correctional Health Services, and Nassau

County Sheriff's Department are all municipal entities. Even affording the pro se complaint a

liberal construction, Mosquera has alleged no facts from which the Court may reasonably

construe a municipal policy, custom, or practice. Further, the complaint is devoid of any

allegation that municipal officials took any action with final decision-making authority. As

Mosquera has not alleged a municipal policy or custom that would confer liability on the

municipal defendants, he has failed to plausibly allege a § 1983 claim against them, and all

claims against them must be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).

II. Raybrook F.C.L. and Nassau Health Care Corporation

Additionally, the complaint does not allege any misconduct with respect to two

defendants. First, Mosquera has not alleged that Raybrook F.C_I or any of its officials were

responsible for his injuries. Not only is the complaint silent as to any alleged misconduct by

Raybrook F.C.I., but the complaint states that Mosquera was injured after he left that facility.

Furthermore, Mosquera names Nassau Health Care Corporation as one of the defendants, yet

there are no allegations whatsoever regarding this entity. Accordingly, Mosquera’s § 1983

claims against Raybrook and Nassau Health Care Corporation are also dismissed pursuant to 28

USS.C. §§ 1915A(b)(1), 1915(e)(2)(B) (ii).

III. Drs. Henig, Montero, and Long

Further, with respect to the individual doctor defendants — Drs. Henig, Montero, and

Long — the allegations of inadequate medical care in the complaint do not state a claim under §

1983. Malpractice claims cannot be sustained under § 1983 because they sound in negligence,

and mere negligence does not rise to the level of a constitutional violation. See Kingsley v.

Hendrickson, 135 S. Ct. 2466, 2472 (2015) (“[L]iability for negligently inflicted harm is

categorically beneath the threshold of constitutional due process.” (emphasis omitted) (internal

quotation marks omitted) (citation omitted)); see also Estelle v. Gamble, 429 U.S. 97, 105-06

(1976) (noting that mere negligence in diagnosis or treatment is insufficient to state a valid

Eighth Amendment claim, and emphasizing that “[m]edical malpractice does not become a

constitutional violation merely because the victim is a prisoner”); Benjamin v. Galeno, 415 F.

Supp. 2d 254, 256 (S.D.N.Y. 2005).

However, a pretrial detainee alleging deliberate indifference to his health or safety may

assert a claim under the Due Process Clause of the Fourteenth Amendment. See Darnell v.

Pinero, 849 F.3d 17, 29 (2d Cir. 2017).” Plaintiffs seeking to establish a due process claim based

on deliberate indifference must satisfy both a subjective and an objective element. First, to

satisfy the subjective element, the plaintiff must plausibly allege that he suffered a sufficiently

serious constitutional deprivation. Under this first prong, “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.” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)

(internal quotation marks omitted) (citation omitted). There is no “static test” to decide whether

a deprivation is sufficiently serious; rather, the “conditions themselves must be evaluated in light

of contemporary standards of decency.” Blissett v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995)

(citations omitted). To satisfy the second prong, which is assessed objectively, the plaintiff must

plausibly allege that defendant(s) acted with deliberate indifference. See Darnell, 849 F.3d at 29.

He must show that defendant(s) “knew, or should have known, that the condition posed an

excessive risk to health or safety.” Jd. at 35. Moreover, as previously stated, respondeat

superior is not a basis for liability under § 1983, and thus the plaintiff must allege the personal

involvement of each named defendant in the alleged constitutional deprivation. See Farrell v.

Burke, 449 F.3d 470, 484 (2d Cir. 2006) (“[PJersonal involvement of defendants in alleged

constitutional deprivations is a prerequisite to an award of damages under § 1983.” (internal

quotation marks omitted) (citation omitted)); see also Ying Li v. City of New York, 246 F. Supp.

3d 578, 599 (E.D.N.Y. 2017) (“[T]he mere listing of” defendant officers “as supervisors . . . is

2 Mosquera is advised that the legal standard governing his rights depends on whether or not he was a pretrial

detainee during the relevant time period. The Court assumes that Mosquera was a pretrial detainee at the time of the

alleged injury. If Mosquera was not a pretrial detainee, a different standard would apply.

insufficient to create an inference of personal involvement absent further allegations, especially

because a defendant may not be held liable merely by his connection to the events through links

in the chain of command.” (brackets omitted) (internal quotation marks omitted) (citations

omitted)).

Here, Mosquera does not allege that any of the defendant doctors acted with deliberate

indifference. The only allegation related to Dr. Henig is that she told Mosquera that surgery was

required. While Mosquera names Dr. Henig in the complaint as the “Director of Health Services

for N.C.C.,” her status as a supervisor is an insufficient basis to impose liability under § 1983,

absent additional facts about her personal involvement in a constitutional violation. As for Dr.

Long, the only allegation in the complaint is that he advised Mosquera that Dr. Montero erred in

placing a cast on his ankle. Further, the only claim against Dr. Montero in the complaint sounds

in negligence or medical malpractice. To the extent Mosquera intends to assert a § 1983 claim

against staff members of the Nassau County Correctional Center who delayed in ordering X-rays

or failed to properly diagnose his injury, he does not allege the identifies of these individuals in

the complaint. Accordingly, the inadequacy of the factual allegations against Drs. Henig, Long,

and Montero also warrant the dismissal of this action for failure to state a claim on which relief

may be granted. See 28 U.S.C. §§ 1915A, 1915(e)(2)(B) (Gi).

IV. Leave to Amend

Although the complaint currently fails to state a claim on which relief may be granted, in

light of Mosquera’s pro se status, the Court grants him thirty days from the date of this Order to

amend the complaint to the extent Mosquera believes he may state a plausible claim against

medical personnel of the Nassau County Correctional Center. See Fed R. Civ. P. 15(a); see also

Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (“Certainly the court should not dismiss

without granting leave to amend at least once when a liberal reading of the [pro se] complaint

gives any indication that a valid claim might be stated.” (alteration in Davis) (quoting Gomez v.

USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)).

If he chooses to file an amended complaint, Mosquera must do so within thirty days of

the date of this Order. The amended complaint must be captioned “Amended Complaint” and

bear the same docket number as this Order. Mosquera is advised that an amended complaint

replaces the complaint in its entirety and therefore it must include all of his claims and factual

allegations against all of the defendants against whom he wishes to proceed. If Mosquera

decides to pursue a claim against individual actor(s) for the violation of his due process rights as

a pretrial detainee, he must allege facts suggesting that those individuals were deliberately

indifferent to his serious medical needs. He must name as proper defendants those individuals

who have some personal involvement in the constitutional violations he alleges in the amended

complaint. Even if Mosquera does not know the names of the individuals, he may identify each

of them as John Doe or Jane Doe. To the best of his ability, he must describe each individual

and the role she or he played in the alleged deprivation of his rights.

CONCLUSION

As set forth above, all claims are dismissed for failure to state a plausible claim for relief

pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1). No summonses shall issue against the

defendants. In light of Mosquera’s pro se status, however, he is granted thirty days from the date

of this Order to file an amended complaint. If submitted, the amended complaint will be

reviewed for compliance with this Order and for sufficiency under Federal Rule of Civil

Procedure 8 and 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1).

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken

in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. See

Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is respectfully

directed to mail a copy of this Memorandum and Order to the pro se plaintiff at the address listed

on the docket, and to note the mailing on the docket.

SO ORDERED.

Dated: Brooklyn, New York

Dec 2 ,2019

s/Roslynn R. Mauskopf

ROSLYNN R. MAUSKOPF

United States District Judge

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