Smith v. Doe

UNITED STATES DISTRICT COURT CLE  RK

EASTERN DISTRICT OF NEW YORK 11:29 am, Ma  y 27, 2022

-------------------------------------------------------------------X U.S. DISTRICT COURT

TERRY SMITH, #132209, E A S T E R N  D IS TRI CT OF NEW YORK

LONG ISLAND OFFICE

Plaintiff,

MEMORANDUM & ORDER

-against- 22-CV-00017(GRB)(JMW)

P.O. SUPRINA, I.D. No. 00234; P.O. PEREZ, I.D. No.

00223; P.O. CAREY, I.D. No. 00074; P.O. SCHMIDT,

I.D. No. 00071; DET. MICHAEL SCHMIDT, I.D. No.

71-110; DET. EDWARD J. CAREY, I.D. No. 74-129;

Defendants.

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GARY R. BROWN, United States District Judge:

Before the Court is the amended complaint filed by pro se plaintiff Terry Smith

(“Plaintiff”) pursuant to the Court’s January 27, 2022 Order. Docket Entry “DE” 7, 11. Upon

review, the Court finds that Plaintiff has not alleged a plausible claim, and, for the reasons that

follow, Plaintiff’s deliberate indifference claims are dismissed with prejudice and his excessive

force claims are dismissed without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii) and

1915A(b).

BACKGROUND

1. Summary of the Amended Complaint

Plaintiff’s amended complaint is again submitted on the Court’s form for civil rights

actions brought pursuant to 42 U.S.C. § 1983 (“Section 1983”) and now names four police officers

and two detectives who are alleged to work for the Riverhead Police Department (together

“Defendants”). See Am. Compl., generally, DE 11 and at 3. Like the original complaint,

Plaintiff again alleges that, following his arrest on November 26, 2021 while at the Riverhead

Town Police Department, he informed an unidentified officer “that he had high blood pressure”

and “was not feeling well and that he needed to take his high blood pressure medication.” Id. at

6. According to the amended complaint, “Plaintiff began to feel light headed, [had] blurred

vision, and slight chest pains.” Id. Plaintiff also alleges that he had “severe back pain” and

“could not walk” or “take photographs or fingerprints because of severe pain in [his] lower back.”

Id. Plaintiff alleges that the officer denied his request for medical attention for approximately

three hours and twenty minutes after which time Plaintiff was taken to the hospital. Id. at 7, 9-

10. According to the amended complaint, Plaintiff was taken to the hospital only after he “fell

out” briefly. Id. at 7. Further, Plaintiff complains that he was walked out of the police station

without socks or shoes on a cold rainy day. Id. at 8.

Plaintiff next alleges that, once at the Suffolk County Correctional Facility’s Riverhead

location, he saw a doctor and described his symptoms, which included blurred vision, headaches,

trouble concentrating, and difficulty with balance. Id. at 8. According to the amended

complaint, the doctor told Plaintiff that “it sound[s] like you had a slight stroke.” Id. Plaintiff

alleges that he is awaiting the results of the MRI of his brain. Id.

In addition, Plaintiff complains that he was handcuffed and shackled around his ankles for

approximately ten and a half hours while at the police station. Id. at 9. According to the

amended complaint, plaintiff was seated and “cuffed to the table in front of him” that “was chest

high.” Id. at 11. Due to the chain that went through his waist belt that connected to the shackles,

Plaintiff was unable to rest his hands on the table. Id. Plaintiff describes that the “cuffs and

shackles [] were very tight” and, when he “mov[ed] his arms to improve his circulation, the cuff

cut into his wrist, causing pain and discomfort.” Id. Plaintiff surmises that he was treated this

way because he “refused to take fingerprints and photos.” Id. at 10.

As a result of the foregoing, Plaintiff claims that the Defendants were deliberately

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indifferent to his serious medical needs and inflicted cruel and unusual punishment in violation of

the Eighth Amendment for which Plaintiff seeks to recover a damages award in the sum of $10

million. Id. at 5, ¶ V.

LEGAL STANDARDS

I. Sufficiency of the Pleadings

As Judge Bianco summarized,

A district court is required to dismiss an in forma pauperis complaint if the action

is frivolous or malicious, fails to state a claim on which relief may be granted, or

seeks monetary relief against a defendant who is immune from such relief. See 28

U.S.C. §§ 1915(e)(2)(B)(i)-(iii). The Court is required to dismiss the action as

soon as it makes such a determination. See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii).

It is axiomatic that district courts are required to read pro se complaints liberally,

see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429

U.S. 97, 106 (1976)); Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010), and to

construe them “‘to raise the strongest arguments that [they] suggest [ ].’” Chavis,

618 F.3d at 170 (quoting Harris v. City of New York, 607 F.3d 18, 24 (2d Cir.

2010)). Moreover, at the pleadings stage of the proceeding, the Court must assume

the truth of “all well-pleaded, nonconclusory factual allegations” in the complaint.

Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 123 (2d Cir. 2010), aff’d, 569

U.S. 108 (2013) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)). However,

“[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements . . . are not entitled to the assumption of truth.” Iqbal, 556

U.S. at 678 (citation omitted).

Notwithstanding a plaintiff’s pro se status, a complaint must plead sufficient facts

to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). “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.” Iqbal, 556 U.S. at 678. The

plausibility standard requires “more than a sheer possibility that a defendant has

acted unlawfully.” Id.; accord Wilson v. Merrill Lynch & Co., 671 F.3d 120, 128

(2d Cir. 2011). While “detailed factual allegations” are not required, “[a] pleading

that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a

cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at

555). Plaintiff’s factual allegations must also be sufficient to give the defendant

“fair notice of what the . . . claim is and the grounds upon which it rests,” Twombly,

550 U.S. at 555 (internal quotation marks and citation omitted).

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Patrick v. Bronx Care, No. 14-CV-7392 (JFB)(AKT), 2014 WL 7476972, at *1-2 (E.D.N.Y. Dec.

31, 2014).

II. Plaintiff’s Claims

A. Section 1983

As the Court made clear in the January 27, 2022 Memorandum & Order, “[t]o maintain a

Section 1983 action, a plaintiff must show that the defendant (1) acted under color of state law (2)

to deprive the plaintiff of a right arising under the Constitution or federal law.” See Mem. &

Order, DE 7 at 4 (citing Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993)). It is well settled that,

in order to establish a defendant’s individual liability in a suit brought under § 1983, a plaintiff

must allege the defendant’s personal involvement in the claimed constitutional deprivation.

Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (“To establish a violation of § 1983 by a

supervisor, as with everyone else, then, the plaintiff must establish a deliberate, intentional act on

the part of the defendant to violate the plaintiff’s legal rights.”) (internal quotation marks and

citation omitted) (emphasis added); Graesser v. Lovallo, No. 22-CV-320(LJV), 2022 WL

1443914, at *4 (W.D.N.Y. May 6, 2022) (“personal involvement is required for liability under

section 1983”). Indeed, “[f]ailing to allege that a defendant was personally involved in, or

responsible for, the conduct complained of renders a complaint ‘fatally defective on its face.’”

Shomo v. State of New York Dept. of Corr. and Comm. Supervision, et al., No. 21-CV-00128

(PMH), 2022 WL 1406726, at *7 (S.D.N.Y. May 4, 2022) (quoting Alfaro Motors, Inc. v. Ward,

814 F.2d 883, 886 (2d Cir. 1987) (internal quotation marks omitted)).

Here, apart from the caption, none of the six Defendants are mentioned in the body of the

amended complaint, nor does Plaintiff attribute any of the challenged conduct or inaction to any

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particular Defendant. See Am. Compl, generally (DE 11). “Although Fed. R. Civ. P. 8 does not

demand that a complaint be a model of clarity or exhaustively present the facts alleged, it requires,

at a minimum, that a complaint give each defendant fair notice of what the plaintiff’s claim is and

the ground upon which it rests.” Atuahene v. City of Hartford, 10 F. App’x 33, 34 (2d Cir. 2001)

(internal quotation marks and citation omitted) (emphasis added). Indeed, “[b]y lumping all the

defendants together in each claim and providing no factual basis to distinguish their conduct,

[Plaintiff’s] complaint fail[s] to satisfy this minimum standard.” Id. at 34.

Simply put, “Plaintiff cannot proceed on a claim under 42 U.S.C. § 1983 without

identifying who deprived him of the associated right.” Griffith v. Clarkstown Police Dep’t, No.

20-CV-06505 (PMH), 2022 WL 1213452, at *5 (S.D.N.Y. Apr. 25, 2022) (citing Yorro v. NYS

DOC, No. 17-CV-09405, 2018 WL 9963874, at *5 (S.D.N.Y. Jan. 3, 2018); Groves v. New York,

No. 09-CV-00412, 2010 WL 1257858, at *8 (N.D.N.Y. Mar. 1, 2010), adopted by 2010 WL

1257942 (N.D.N.Y. Mar. 26, 2010)) (add’l citation omitted). Accordingly, as is readily apparent,

Plaintiff has not sufficiently alleged a Section 1983 claim against any Defendant that survives

plausibility review.

B. Deliberate Indifference Claims

Even if Plaintiff had sufficiently alleged the personal involvement of a Defendant, his

deliberate indifference claims are implausible for the reasons that follow. State pretrial detainees,

like Plaintiff, are protected under the Due Process Clause of the Fourteenth Amendment.1

1 According to the information maintained by the New York State Office of Court Administration on its public

website, Plaintiff pled not guilty during his December 9, 2021 arraignment and is awaiting trial on burglary in the

third degree, grand larceny in the third degree and petit larceny charges under Suffolk County Court – Criminal term

Indictment No. 71031-21. See

https://iapps.courts.state.ny.us/webcrim_attorney/Detail?which=charge&docketNumber=JWpW/Uq5MUGCf_PLU

S_Z03ehRNA==&countyId=RGmOR4u7mFEnUqEBkD3k3Q==&docketId=406_PLUS_CU8JXOz61oDHeKIQyQ

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Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017); Yancey v. Robertson, 828 F. App’x 801, 803

(2d Cir. 2020) (summary order). Plaintiff was instructed that a Fourteenth Amendment claim for

deliberate indifference to a serious medical need is analyzed under a two-prong test which requires:

(1) an objectively “sufficiently serious” injury; and (2) a subjectively sufficient state of mind in

that the defendant “knew or should have known” that “an excessive risk to health or safety” would

result. See Mem & Order, DE 7 at 4-6. In addition, the Court explained where, as here:

a prisoner alleges a delay in medical treatment, courts examine both the seriousness

of the prisoner’s medical conditions and the harm caused by any unreasonable

delay. Lombardo, 807 F. App’x at 123 (citing Salahuddin, 467 F.3d 263, 280 (2d

Cir. 2006) (“[I]f the prisoner is receiving on-going treatment and the offending

conduct is an unreasonable delay or interruption in that treatment, the seriousness

inquiry ‘focus[es] on the challenged delay or interruption in treatment rather than

the prisoner’s underlying medical condition alone.’” )(quoting Smith v. Carpenter,

316 F.3d 178, 185 (2d Cir. 2003)).

Mem. & Order, DE 7 at 5.

As a threshold matter, Plaintiff’s present allegations regarding his deliberate indifference

claims are largely the same as those alleged in the original complaint. Notwithstanding the

Court’s clear guidance as to minimum requirements to plausibly allege a deliberate indifference

claim, Plaintiff’s amended complaint omits any facts from which the Court could reasonably

construe a plausible deliberate indifference claim. Again, Plaintiff’s alleged “slight chest pain[s]”

do not constitute a sufficiently serious medical condition. See Shepard v. Kelly, No. 19 CIV. 669

(NSR), 2021 WL 1600495, at *3 (S.D.N.Y. Apr. 23, 2021) (citing Hutchinson v. N.Y. Corr.

==&docketDseq=XAtDTFawu3Yc7RcVAZUMYA==&defendantName=Smith,+Terry+M&court=Suffolk+County

+Court+-+Criminal+Term&courtType=S&recordType=C&recordNum=XXmpLGlK3uqT_PLUS_H/oJnCfyQ==

(last visited on May 24, 2022). Thus, even though Plaintiff alleges that his deliberate indifference claims arise

under the Eighth Amendment, the Court reads such claims as properly brought pursuant to the Fourteenth

Amendment.

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Officers, No. 02 CIV. 2407 (CBM), 2003 WL 22056997, at *5 (S.D.N.Y. Sept. 4, 2003) (holding

that plaintiff who had only alleged chest pains failed to satisfy objective prong); McCoy v. Goord,

255 F.Supp.2d 233, 260 (S.D.N.Y. 2003) (dismissing pro se plaintiff’s deliberate indifference

claim based on chest pain where plaintiff failed to allege “for what serious medical condition he

sought and was denied treatment, [or] what harm, if any, resulted from the delay in treatment”));

Flemming v. Velardi, No. 02 CIV. 4113 AKH, 2003 WL 21756108, at *2 (S.D.N.Y. July 30, 2003)

(“severe heart condition can be sufficiently ‘serious,’” but not mere “chest pains” and

“discomfort”).2

Nor does Plaintiff allege any harm caused by the alleged three hour and twenty minute

delay in medical treatment. See Am. Compl., generally; Bradshaw v. City of New York, 855 F.

App’x 6, 10 (2d Cir. 2021) (summary order) (affirming dismissal of deliberate indifference claim

where medical professionals treated plaintiff for his injuries on the day he sustained them). And,

with regard to the second prong, although the Court found that “Plaintiff has not alleged any facts

demonstrating that any Defendant acted with ‘objective recklessness’, much less actual awareness

of a substantial risk that serious harm would result from a delay in treatment” (DE 7 at 6), he has

not added any new facts in support of this claim. Because “Plaintiff’s own allegations

demonstrate that the officers reasonably acted on that information in transporting him to the

hospital for treatment within a short time frame” (DE 7 at 6) after telling an officer that Plaintiff

takes medication to control his high blood pressure, Plaintiff’s allegations again fall far short of

2 That these cases were decided under the Eighth Amendment instead of the Fourteenth Amendment is

inconsequential. “Claims for deliberate indifference to a serious medical condition or other serious threat to the

health or safety of a person in custody should be analyzed under the same standard irrespective of whether they are

brought under the Eighth or Fourteenth Amendment.” Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009),

overruled on other grounds by Darnell, 849 F.3d at 17; see also Feliciano v. Anderson, No. 15-CV-

4106(LTS)(JLC), 2017 WL 1189747, at *8 (S.D.N.Y. Mar. 30, 2017).

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objective recklessness and do not establish any Defendant acted unlawfully in delaying medical

treatment while aware that there was a substantial risk of serious harm to Plaintiff. Accordingly,

even affording Plaintiff the special solicitude granted to pro se litigants, for these reasons and for

the reasons set forth in the January 27, 2022 Memorandum & Order, the amended complaint does

not set forth a plausible deliberate indifference claim and is thus dismissed with prejudice pursuant

to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii), 1915A(b)(1).

C. Section 1983 Excessive Force Claims

Plaintiff also alleges that he was subjected to excessive force by being tightly handcuffed

and shackled for approximately ten and a half hours. See Am. Compl., DE 11 at 9. The Court

liberally construes Plaintiff’s excessive force claim as arising under the Fourth Amendment.

Livigni v. Ortega, No. 15-CV-9454 (CM), 2016 WL 6143351, at *4 (S.D.N.Y. Oct. 19, 2016).

“In evaluating the reasonableness of handcuffing, courts in this circuit consider evidence that: ‘1)

the handcuffs were unreasonably tight; 2) the defendant[] ignored the [plaintiff’s] pleas that the

handcuffs were too tight; and 3) the degree of injury to the wrists.’” Pierre v. City of New York,

531 F. Supp. 3d 620, 627-28 (E.D.N.Y. 2021) (citing Lynch ex rel. Lynch v. City of Mount Vernon,

567 F. Supp. 2d 459, 468 (S.D.N.Y. 2008) (quoting Esmont v. City of New York, 371 F.Supp.2d

202, 215 (E.D.N.Y. 2005)). “[W]here an officer's use of force in handcuffing is plainly

unreasonable under the circumstances or where a plaintiff manifests clear signs of her distress—

verbally or otherwise—a fact finder may decide that the officer reasonably should have known

that his use of force was excessive for purposes of establishing a Fourth Amendment violation.”

Cugini v. City of New York, 941 F.3d 604, 613 (2d Cir. 2019). The Second Circuit recently

clarified “that, although the[se] factors ‘may prove useful to a district court in assessing the

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soundness of a handcuff-based excessive force claim,’ no one factor is dispositive, and the test is

ultimately one of reasonableness that ‘is not limited to a factual checklist.’” Horace v. Gibbs,

802 F. App’x 11, 15 (2d Cir. 2020) (summary order) (quoting Cugini, 941 F.3d at 613). Indeed,

“the touchstone of an excessive force claim regarding tight handcuffing turn[s] on whether a

reasonable officer would have known that the force used was excessive.” Kuchma v. City of

Utica, No. 6:19-CV-766(GTS)(TWD), 2020 WL 491474, at *4 (N.D.N.Y. Jan. 30, 2020), report

and recommendation adopted, No. 6:19-CV-0766(GTS)(TWD), 2020 WL 967168 (N.D.N.Y. Feb.

28, 2020).

Here, though thin, had Plaintiff sufficiently alleged the personal involvement of a

defendant, the Court finds that his excessive force claims would survive initial review. Plaintiff

complains that he was handcuffed and shackled for over ten hours despite his arrest for non-violent

crimes, and that he had alerted “officers” that the handcuffs were too tight. Further, Plaintiff’s

allegation that the “officer” said he would loosen the handcuffs and remove the shackles and waist

band if Plaintiff allowed them to take his fingerprints suggests that the officer knew the force used

was excessive. Accordingly, Plaintiff’s excessive force claims are dismissed without prejudice

pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii), 1915A(b)(1) and with leave to file an amended

complaint that includes the personal involvement of each individual Defendant against whom

Plaintiff seeks to impose liability for the alleged excessive force relating to the handcuffs.

D. State Law Claims

As the undersigned has previously observed:

Pursuant to 28 U.S.C. § 1367(c), a district court ‘may decline to exercise

supplemental jurisdiction over’ state law claims if, as here, ‘the district court has

dismissed all claims over with it has original jurisdiction.’ 28 U.S.C. § 1367(c)(3);

see Delaney v. Bank of Am. Corp., 766 F.3d 163, 170 (2d Cir. 2014). ‘Dismissal of

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the state law claims, however, is not absolutely mandatory, and the authority of

whether to retain or decline jurisdiction resides in the sound discretion of the

Court.’ Cinevert v. Varsity Bus Co., No. 12-CV-1223 (RRM)(VVP), 2014 WL

4699674, at *3 (E.D.N.Y. Sept. 22, 2014) (internal quotation marks and citations

omitted); see Delaney, 766 F.3d at 170. ‘In deciding whether to exercise

jurisdiction over supplemental state-law claims, district courts should balance the

values of judicial economy, convenience, fairness, and comity — the ‘Cohill

factors.’ Klein & Co. Futures, Inc. v. Bd. of Trade, 464 F.3d 255, 262 (2d Cir. 2006)

(citation omitted). ‘[I]n the usual case in which all federal-law claims are eliminated

before trial, the balance of factors will point toward declining to exercise

jurisdiction over the remaining state-law claims.’ Kolari v. New York-Presbyterian

Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (quoting Carnegie-Mellon Univ. v. Cohill,

484 U.S. 343, 350 n. 7, 108 S. Ct. 614, 98 L. Ed. 2d 720 (1988)); see Brzak v.

United Nations, 597 F.3d 107, 113-14 (2d Cir. 2010) (“[I]f a plaintiff’s federal

claims are dismissed before trial, the state claims should be dismissed as well.”).

Espinosa v. Nassau Cty. Corr. Ctr., No. 20-CV-00223(GRB)(VMS), 2021 WL 826168, at *3-4

(E.D.N.Y. Mar. 3, 2021) (citation omitted). Here, having dismissed Plaintiff’s Section 1983

claims - - the only federal cause of action - - the Court finds that concerns for judicial economy,

convenience, fairness and comity weigh against retaining supplemental jurisdiction over any

remaining state law claims, including negligence. Accordingly, the undersigned declines to

exercise supplemental jurisdiction over any remaining state law claim and such claims are

therefore dismissed without prejudice. Plaintiff may pursue any valid claim he may have in state

court.

III. Leave to Amend

A pro se plaintiff should ordinarily be given the opportunity “to amend at least once when

a liberal reading of the complaint gives any indication that a valid claim might be stated.” Shomo

v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009) (internal quotation marks and citation

omitted). Given that Plaintiff has already been afforded an opportunity to amend his deliberate

indifference claims and has again failed to plausibly allege a proper deliberate indifference claim,

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the Court declines to permit further amendment of those claims. However, Plaintiff is granted

leave to amend his excessive force claims in accordance with the guidance set forth above. Any

amended complaint shall: (1) bear docket number 22-CV-0017(GRB)(JMW); (2) be clearly

labeled “second amended complaint”; and (3) be filed within thirty (30) days from the date of this

order. To be clear, the second amended complaint shall include the personal involvement of any

individuals who are named as defendants, including factual allegations concerning their conduct

or inaction regarding the handcuffing and shackling of Plaintiff. Plaintiff is warned that a failure

to timely file a second amended complaint, absent a showing of good cause, will lead to the entry

of judgment and this case will be closed.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order

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 the

Court is directed to mail a copy of this Order to the pro se plaintiff at his address of record and

note service on the docket.

SO ORDERED.

__/s/__________________

Gary R. Brown

United States District Judge

Dated: May 27, 2022

Central Islip, New York

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