London v. Nassau County Correctional Facility

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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LENNOX LONDON,

Plaintiff, MEMORANDUM AND ORDER

20-CV-1991(JS)(SIL)

-against-

SHERIFF DZURENDA, DONNA L. HENIG, MD,

Medical Director, Nassau County

Correctional Center;

Defendants.

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APPEARANCES

For Plaintiff: Lennox London, Pro Se

20-A-1857

Greene Correctional Facility

P.O. Box 975

Coxsackie, New York 12051

For Defendants

Sheriff Dzurenda: Liora M. Ben-Sorek, Esq.

Nassau County Attorney’s Office

One West Street

Mineola, New York 11501

Henig and Joseph F. Fitzgerald, Esq.

Nassau County Rubin Paterniti Gonzalez Kaufman, LLP

Corr. Facility 1225 Franklin Avenue, Suite 200

Medical Unit: Garden City, New York 11530

SEYBERT, District Judge:

Pending before the Court is the motion to dismiss

(hereafter, “Dismissal Motion”) of Defendant Donna L. Henig, MD

(“Dr. Henig”) and the Nassau County Correctional Facility Medical

Unit (the “Medical Unit”) seeking to dismiss the Complaint filed

by incarcerated pro se plaintiff Lennox London (“Plaintiff”). (See

Dismissal Motion, ECF No. 28; Compl., ECF No. 1.)1 For the reasons

set forth below, Dr. Henig’s Dismissal Motion is DENIED insofar as

it is brought pursuant to Federal Rule of Civil Procedure 12(b)(1)

and seeks dismissal of Plaintiff’s state law claims. Otherwise,

the Dismissal Motion is GRANTED. In addition, Plaintiff’s

remaining claims against Sheriff Dzurenda are sua sponte DISMISSED

pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1).

BACKGROUND

I. Procedural History

On April 27, 2020, Plaintiff filed a pro se Complaint

pursuant to 42 U.S.C. § 1983 (“Section 1983”) against the Nassau

County Correctional Center (improperly named as the “Nassau County

Correctional Facility” (“the Jail”); the Medical Unit; the

Sheriff’s Department of Nassau County (the “Sheriff’s Department”)

and its “Officers”; Sheriff Dzurenda; and Dr. Henig together with

an application to proceed in forma pauperis (“IFP”). (See Compl.,

IFP Mot., ECF No. 2.)

1 By Memorandum and Order dated August 27, 2020 (hereafter, the

“2020 M&O”), the Court, inter alia, sua sponte dismissed

Plaintiff’s claims as against the Jail, the Medical Unit, and the

Sheriff’s Department with prejudice pursuant to 28 U.S.C. §§

1915(e)(2)(B)(ii) and 1915A(b)(1). The Court further dismissed

Plaintiff’s claims against the unnamed “Officers” without

prejudice for failure to allege a plausible claim for relief

pursuant to Federal Rule of Civil Procedure 8 and 28 U.S.C. §§

1915(e)(2)(B)(ii) and 1915A(b)(1). (See 2020 M&O, ECF No. 9, at

2, n.1, 8-9.) Thus, the only remaining Defendants are Dr. Henig

and Sheriff Dzurenda. (Id.)

Upon screening the Complaint and IFP application

pursuant to the Prisoner Litigation Reform Act (“PLRA”), 28 U.S.C.

§§ 1915(e)(2), 1915A, the Court granted Plaintiff’s IFP

application and sua sponte dismissed Plaintiff’s claims pursuant

to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) against all of

the defendants other than Sheriff Dzurenda and Dr. Henig. (See

2020 M&O at 2, 7-9.) The Court also requested that, in light of

the national emergency caused by the COVID-19 pandemic, the Nassau

County Attorney accept service of the Summonses and Complaint on

behalf of Sheriff Dzurenda and Dr. Henig in lieu of personal

service by the United States Marshals Service (“USMS”). (Id. at

8.)

By letter dated August 31, 2020, the Nassau County

Attorney apprised the Court that it would accept service on behalf

of Sheriff Dzurenda and explained that, because Dr. Henig is

employed by the Nassau Health Care Corporation, the County Attorney

is not authorized to accept service on her behalf. (See ECF No.

13.) Accordingly, after the pandemic-related service restrictions

were lifted, by Electronic Order dated March 15, 2021, the Court

extended the time period for service of the Summons and Complaint

upon Dr. Henig and ordered that the USMS effect such service. (See

Mar. 15, 2021 Elec. Order.)

Sheriff Dzurenda filed an Answer to the Complaint with

Affirmative Defenses (see Answer, ECF No. 14), and Dr. Henig filed

the Dismissal Motion (see ECF No. 28; see also Support Memo, ECF

No. 28-1.) Plaintiff filed opposition to the Dismissal Motion

(see Opp’n, ECF No. 29) and Dr. Henig filed a reply. (See Reply.)

II. Relevant Facts2

The Court sets forth only those facts relevant to the

instant Dismissal Motion, and reiterates that after the Court’s

August 27, 2020 Memorandum and Order, only Plaintiff’s Section

1983 claims and related state law claims against Sheriff Dzurenda

and Dr. Henig remain.3

Plaintiff’s handwritten Complaint generally complains

about the Jail’s protocol with respect to the COVID-19 pandemic.

(See Compl., in toto.) More specifically, Plaintiff alleges that

Sheriff Dzurenda and Dr. Hennig, among others, came into his unit

and distributed a “memo telling us we don’t need any COVID-19

tests. We don’t need to be tested cause we are safe.” (Id. at 4,

¶ II.) Plaintiff alleges that Dr. Henig advised that the inmates

and officers that have the virus “are in other parts of the

building downstairs . . . .” (Id.) According to the Complaint,

Plaintiff told Dr. Henig “that new inmates come into our unit from

the street and they are sick, they tested positive for the virus

2 The following facts are drawn from the Complaint.

3 As set forth above, supra at 2-3, all claims against the Unit,

the Jail, and the Sheriff’s Department have been dismissed with

prejudice because none of these entities have an independent legal

identity and thus cannot be sued. (See 2020 M&O at 7-8.)

and are here with us.” (Id.) Plaintiff also complains that the

corrections officers did not: wear masks or gloves; provide any

sanitizing supplies; and put any social distancing measures in

place. (Id.) Plaintiff complains that he was forced to be in

close quarters with inmates “who are showing COVID-19 symptoms.”

(Id.)

In the space on the form complaint that calls for a

description of any claimed injuries, Plaintiff reports he: was

diagnosed with tuberculosis; has a weakened immune system; and has

not received any medical treatment for his “lung disease” and

“breathing problems” including “shortness of breath, dry coughing,

fever, sneezing, runnie nose and runnie eyes.” (Id. at 4, ¶ II.A.)

Plaintiff also claims he is “pre-diabetic” and “they check my blood

all the time” and have also given him a nasal spray for his “stuffy”

nose. (Id. at 7-8.) Plaintiff also alleges that he suffers from

schizophrenia and bipolar disorder for which he takes medication

twice a day. (Id. at 4, ¶ II.A.) According to the Complaint,

Plaintiff’s “mental health issues got worse because of fear,

stress, worry, anxiety, paranoid, panic, emotional distress.”

(Id. at 7.)

Annexed to the Complaint is a four-page handwritten

document entitled “Attachment for Facts” wherein Plaintiff

generally complains that the inmates at the Jail are not being

released while “in NYC 1500 inmates was released from City jail”

by Mayor DeBlasio in response to the COVID-19 pandemis. (Id. at

5.) Plaintiff also alleges that, although Sheriff Dzurenda’s memo

says that two full-time cleaning crews are working around the clock

and are using “CDC approved disinfectant that kills the virus”, no

one has cleaned his unit. (Id. at 6.)

Finally, Plaintiff filed a Supplemental document

alleging that on April 28, 2020, another inmate housed in close

proximity to Plaintiff tested positive for the COVID-19 virus and

was moved to another location. (See Suppl. Ltr., ECF No. 8, at

1.) The following day, the cell and common areas of the Jail where

this inmate had been were disinfected and every inmate there was

given an N95 mask. (Id. at 1-2.) Plaintiff complains that, even

though an inmate he was exposed to had tested positive for the

COVID-19 virus, he still has not been tested. (Id. at 2.)

As a result of the foregoing, Plaintiff alleges that he

has been subjected to “[i]nadequate [h]ealth care, [f]ailure to

accommodate and medical negligence/neglect” for which he seeks to

recover $2.5 million dollars in damages in addition to “a full

body examination, the coronavirus test”, and treatment and care

for emotional distress. (Compl. at 5; see also id. at 9, ¶ III.)

Further, Plaintiff seeks an order compelling “[i]nvestigators to

come in to NCCF to see what’s going on and to change the Guidelines

& Rules.” (Id. at 9, ¶ III.)

III. The Dismissal Motion

Dr. Henig’s Dismissal Motion seeks dismissal of the

Complaint in its entirety pursuant to Federal Rules of Civil

Procedure 12(b)(1) and (6). (See Dismissal Motion, in toto.) More

specifically, Dr. Henig argues that Plaintiff’s: (1) Complaint

fails to state a plausible cause of action whether construed as

medical malpractice or a civil rights violation; (2) fails to

comply with the notice of claim requirements for personal injury

actions under state law, which bars his Complaint; and (3)

allegations do not set forth a plausible civil rights violation

for inadequate medical treatment. (See Support Memo at 5-16.)4

Plaintiff opposes the Dismissal Motion and argues that:

(1) Dr. Henig “fails to disclose the full and complete record of

Plaintiff’s factual claims”; (2) his pro se Complaint plausibly

alleges a deliberate indifference claim under the Eighth and

Fourteenth Amendments arising from the alleged denial of adequate

medical care; (3) his failure to comply with the notice of claim

requirements should be excused; (4) he has sufficiently alleged

that he was subjected to cruel and unusual punishment. (See

4 Dr. Henig also argues that the claims against the Medical Unit

are implausible because it is “merely [an] administrative arm[] of

a municipality” and “do[es] not have a legal identity separate and

apart from the municipality and therefore cannot sue or be sued.”

(Support Memo at 11.) The Court agrees and has already dismissed

Plaintiff’s claims against the Medical Unit for this reason. (See

2020 M&O at 2, 7-8.)

Opp’n.) Dr. Henig filed a reply addressing each of Plaintiff’s

arguments and asserting that any suggestion that she altered or

falsified Plaintiff’s Complaint is false. (Reply, ECF No. 31, at

4-8.)

DISCUSSION

I. Legal Standards

A. Rule 12(b)(1)

“A case is properly dismissed for lack of subject matter

jurisdiction under Rule 12(b)(1) when the district court lacks the

statutory or constitutional power to adjudicate it.” Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000). The Court is

required to determine whether it possesses subject matter

jurisdiction prior to deciding a case. Wynn v. AC Rochester, 273

F.3d 153, 157 (2d Cir. 2001); accord Morrison v. Nat’l Austl. Bank,

Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff’d, 561 U.S. 247 (2008)

(“Determining the existence of subject matter jurisdiction is a

threshold inquiry . . . .”) (internal quotation marks and citation

omitted). The plaintiff bears the burden of establishing that

subject matter exists by a preponderance of the evidence.

Makarova, 201 F.3d at 113.

B. Rule 12(b)(6)

To withstand a motion to dismiss brought pursuant to

Rule 12(b)(6), a complaint must contain factual allegations that

“state a claim to relief that is plausible on its face.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). This plausibility standard is

not a “probability requirement” and requires “more than a sheer

possibility that a defendant has acted unlawfully.” Id. (internal

quotation marks and citation omitted). Although the Court must

accept all allegations in the complaints as true, this tenet is

“inapplicable to legal conclusions.” Id. Thus, “[t]hreadbare

recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id. (citation omitted).

Ultimately, the Court’s plausibility determination is a “context-

specific task that requires the reviewing court to draw on its

judicial experience and common sense.” Id. at 679.

C. Notice of Claim

Under New York law, a notice of claim is a condition

precedent for suing a municipality or its employees for a tort.

See N.Y. Gen. Mun. Law § 50-e(1)(a). Indeed:

Section 50-i of New York’s General Municipal

Law, which governs state law tort claims

“against municipalities [and their] officers,

agents or employees whose conduct caused the

alleged injury,” provides by reference to

Section 50-e that a “plaintiff must file a

notice of claim prior to commencement of an

action against a municipality, and must serve

the notice of claim within 90 days after the

claim arises,” even if he brings the claim in

the context of “a federal civil rights

action.”

Peralta v. City of N.Y., et al., No. 21-CV-6395, 2022 WL 2805463,

at *4 (S.D.N.Y. July 18, 2022)5 (quoting Minus v. Spillane, No.

17-CV-4623, 2019 WL 6498258, at *3 (S.D.N.Y. Dec. 3, 2019)

(citation omitted) (quoting N.Y. Gen. Mun. Law § 50-i and Warner

v. Vill. of Goshen Police Dep’t, 256 F. Supp. 2d 171, 174-75

(S.D.N.Y. 2003)). In addition, “a notice of claim (or lack

thereof) is properly considered on a motion to dismiss as an

integral part of the complaint because, as a matter of state law,

the notice is a precondition to bringing a tort claim against a

municipality or municipal employee.” Peralta, 2022 WL 2805463, at

*4; see also Vyrkin v. Triboro Bridge & Tunnel Auth., No. 18-CV-

12106, 2021 WL 797654, at *6 (S.D.N.Y. Mar. 2, 2021) (“[T]imely

service of a notice of claim . . . is a condition precedent to

bringing the state law claims against the defendants.”).

D. The Prisoner Litigation Reform Act (“PLRA”)

The PLRA requires that this Court screen Plaintiff’s in

forma pauperis Complaint to determine if the action is frivolous

or malicious, fails to state a claim upon 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), 1915A. Where

appropriate, the PLRA directs a district court to sua sponte

5 Upon written request, Plaintiff will be provided copies of all

unpublished opinions cited in this decision. See Lebron v.

Sanders, 557 F.3d 76, 79 (2d Cir. 2009) (per curiam).

dismiss such claims as soon as it makes such a determination.6 See

id.; see also Liner v. Goord, 196 F.3d 132, 134 & n.1 (2d Cir.

1999) (noting that under §§ 1915, 1915A, sua sponte dismissals of

frivolous prisoner complaints are not only permitted but

mandatory).

A complaint filed by a pro se litigant is to be construed

liberally and “however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nevertheless, a pro

se complaint must state a plausible claim for relief and comply

with the minimal pleading standards set forth in Federal Rule of

Civil Procedure 8. See, e.g., Nielsen v. Rabin, 746 F.3d 58, 63

(2d Cir. 2014).

II. Application

A. Subject Matter Jurisdiction

The Court begins, as it must, with subject matter

jurisdiction. See Sutton v. Stony Brook Univ., No. 18-CV-7434,

2020 WL 6532937, at *10 (E.D.N.Y. Nov. 5, 2020) (“Determining the

existence of subject matter jurisdiction is a threshold inquiry

and a claim is properly dismissed for lack of subject matter

6 Indeed, in accordance with the PLRA’s mandate, the Court has

already sua sponte dismissed much of Plaintiff’s Complaint. (See

2020 M&O, in toto.) In declining to sua sponte dismiss the

remaining claims against Dr. Hening and Sheriff Dzurenda at that

early stage in the proceeding, the Court made clear that such

claims were “thin” at best. (Id. at 8.)

jurisdiction under Rule 12(b)(1) when the district court lacks the

statutory or constitutional power to adjudicate it.”) (citation

omitted). In general, a district court has subject matter

jurisdiction if the case arises under federal law, see 28 U.S.C.

§ 1331, or if there is complete diversity between the parties and

the amount in controversy exceeds $75,000, see 28 U.S.C. § 1332.

Here, Plaintiff’s pro se Complaint is submitted on the

Court’s form for actions brought pursuant to Section 1983 and

purports to allege, inter alia, that the Defendants were

deliberately indifferent to his claimed serious medical needs.

(See Compl., in toto.) Thus, Plaintiff has properly invoked this

Court’s federal question subject matter jurisdiction. Dr. Henig’s

contention that this Court is divested of subject matter

jurisdiction to adjudicate Plaintiff’s Section 1983 claims due to

his failure to file a notice of claim is misplaced. Although a

notice of claim is a condition precedent to adjudication of state

law claims in federal court, in Felder v. Casey, 487 U.S. 131, 151

(1988), the United States Supreme Court made clear that state

notice of claim statutes “are pre-empted as inconsistent with

federal law.” Id. at 132, 151-52. Thus, Plaintiff’s admitted

failure to file a notice of claim has no bearing on this Court’s

subject matter jurisdiction to adjudicate his Section 1983 claims.

Accordingly, the Court finds that it has subject matter

jurisdiction to adjudicate Plaintiff’s Section 1983 claims;

therefore, the Rule 12(b)(1) prong of Dr. Henig’s Dismissal Motion

is DENIED.

B. Section 1983

The Complaint purports to allege that Sheriff Dzurenda

and Dr. Henig were deliberately indifferent to Plaintiff’s medical

needs as related to the COVID-19 pandemic. More specifically,

Plaintiff complains that, although symptomatic, his requests for

a COVID-19 test and related treatment were denied.7 Accordingly,

the Complaint alleges that Plaintiff received “inadequate health

care” as a result of the Defendants “failure to accommodate and

medical negligence/neglect . . . because of the COVID-19, Corona

virus crisis pandemic.” (Compl. at 9, ¶ III.) The Complaint does

not allege whether Plaintiff’s Section 1983 claims are brought

pursuant to the Eighth or Fourteenth Amendments; however,

Plaintiff’s opposition papers assert that he has suffered a

deprivation of his Eighth and Fourteenth Amendment rights. (See

Compl., in toto; see also Opp’n at 4, 8.)8

7 Plaintiff alleges that although he had “shortness of breath,

dry coughing, fever, sneezing, runnie nose and runnie eyes” as

well as “no taste, no smell . . . I get no treatment.” (Compl. at

4, ¶ II.A., and 6.)

8 In addition, for the first time in his Opposition, Plaintiff

asserts that he has been subjected to cruel and unusual punishment

at the Jail as a result of the alleged failure to test and treat

his suspected COVID-19 infection. (See Opp’n at 6 (“The cruel and

unusual punishment suffered by plaintiff was not only emotionally

stressful and depressing, but psychologically debilitating

also.”).) Although such claim is not properly before the Court,

Section 1983 provides:

[e]very person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State . . . subjects, or causes

to be subjected, any citizen of the United

States . . . to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured.

42 U.S.C. § 1983. To state a claim under Section 1983, a plaintiff

must “allege that (1) the challenged conduct was attributable at

least in part to a person acting under color of state law and (2)

in an abundance of caution, given Plaintiff’s pro se status, the

Court has considered whether his allegations plausibly allege that

the conditions of his confinement violate the Fourteenth

Amendment. See Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017)

(“A pretrial detainee may not be punished at all under the

Fourteenth Amendment, whether . . . by deliberate indifference to

conditions of confinement, or otherwise.”).

To bring a conditions-of-confinement deliberate indifference

claim under the Due Process Clause, a pretrial detainee must allege

“that the challenged conditions were sufficiently serious to

constitute objective deprivations of the right to due process” and

that “the officer acted with at least deliberate indifference to

the challenged conditions.” Valdiviezo v. Boyer, 752 F. App’x 29,

32 (2d Cir. 2018). Thus, Plaintiff must show that, in light of

contemporary standards of decency, the severity and duration of

the challenged conditions, taken together, posed an unreasonable

risk of serious damage to his health, even absent any resulting

injury. See Darnell, 849 F.3d at 30. But when, “as here, a

communicable disease renders the general conditions of confinement

dangerous to [a plaintiff’s] health, and meeting [the plaintiff’s]

medical needs requires that [the defendants] take specific

measures to prevent their infection, the conditions of confinement

and unmet medical needs claims essentially merge.” Monroe v.

Jouliana, No. 20-CV-6807, 2021 WL 6052162, at *2 n. 6 (S.D.N.Y.

Dec. 20, 2021) (internal quotation marks and citation omitted).

For the same reasons set forth herein regarding the implausibility

of Plaintiff’s inadequate medical care claims, any challenge to

the conditions of his confinement similarly lack merit.

the conduct deprived the plaintiff of a right guaranteed under the

Constitution of the United States.” Rae v. County of Suffolk, No.

07–CV–2138, 2010 WL 768720, at *4 (E.D.N.Y. Mar. 5, 2010) (quoting

Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999)).

As Plaintiff was a pre-trial detainee when he filed the

present Complaint on April 27, 2020,9 his claims arise under the

Fourteenth Amendment. See Gazzola v. County of Nassau, No. 16-

CV-0909, 2022 WL 2274710, at *8 (E.D.N.Y. June 23, 2022) (“‘A post-

conviction-prisoner’s deliberate indifference claim is analyzed

under the Eighth Amendment while the same claim raised by a pre-

trial detainee is analyzed under the Due Process Clause of the

Fourteenth Amendment.’” (quoting Horace v. Gibbs, 802 F. App’x 11,

13–14 (2d Cir. 2020) (citing Darnell, 849 F.3d at 29))). This

distinction is relevant to the present dispute, because the Eighth

and Fourteenth Amendments “embrace different definitions of the

‘subjective’ or ‘mens rea prong.’” Horace, 802 F. App’x at 14

(citing Darnell, 849 F.3d at 35). Whereas under the Eighth

Amendment, the subjective requirement obligates the plaintiff to

show that the defendant official acted or failed to act while

9 (See Opp’n at 2 (“Beginning in the year 2020, the COVID-19

pandemic erupted during the pretrial confinement of plaintiff at

the [Jail].” (emphasis added)); Support Memo at 5 (following

Plaintiff’s August 2019 arrest, “[h]e was held in pre-trial

confinement at the [jail] awaiting trial. On October 29, 2020

Plaintiff plead guilty . . . .” (emphasis added)).)

actually aware of a substantial risk that serious inmate harm will

result, under the Fourteenth Amendment, “an official does not act

in a deliberately indifferent manner toward an arrestee unless the

official ‘acted intentionally to impose the alleged condition, or

recklessly failed to act with reasonable care to mitigate the risk

that the condition posed to the pretrial detainee even though the

defendant-official knew, or should have known, that the condition

posed an excessive risk to health or safety.’” Id. (quoting

Darnell, 849 F.3d at 35) (emphasis omitted); see also Charles v.

Orange County, 925 F.3d 73, 86–87 (2d Cir. 2019) (holding that

while this “formulation of the deliberate indifference standard

was developed in cases involving unconstitutional conditions of

confinement,” the “same principles” apply to claims of

unconstitutionally inadequate medical treatment).

Thus, to state a claim of deliberate indifference to a

serious medical need under the Due Process Clause of the Fourteenth

Amendment, a plaintiff must “plead facts showing that [he] had a

serious medical condition and that it was met with deliberate

indifference.” Bruno v. City of Schenectady, 727 F. App’x 717,

720 (2d Cir. 2018) (citation and quotation marks omitted).

Deliberate indifference under the Fourteenth Amendment “can be

shown by something akin to recklessness and does not require proof

of a malicious or callous state of mind.” Charles, 925 F.3d at

87. “Thus, a detainee asserting a Fourteenth Amendment claim for

deliberate indifference to his medical needs can allege either

that the defendants knew that failing to provide the complained of

medical treatment would pose a substantial risk to his health or

that the defendants should have known that failing to provide the

omitted medical treatment would pose a substantial risk to the

detainee’s health.” Id. at 87; see also Darby v. Greenman, 14

F.4th 124, 128 (2d Cir. 2021) (“Deliberate indifference requires,

at a minimum, ‘culpable recklessness, i.e., an act or a failure to

act that evinces a conscious disregard of a substantial risk of

serious harm.’”) (quoting Charles, 925 F.3d at 87) (cleaned up).

However, “mere medical malpractice is not tantamount to

deliberate indifference absent a showing of conscious disregard of

a substantial risk of serious harm.” Darby, 14 F.4th at 129

(citation and quotation marks omitted). Similarly, “a difference

of opinion about the proper course of treatment . . . does not

demonstrate deliberate indifference to a substantial risk of harm

to [a detainee’s] health.” Id. Further, “a plaintiff must plead

and prove that each Government-official defendant, through the

official’s own individual actions, has violated the Constitution.”

Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (“The

violation must be established against the supervisory official

directly.”) (citation and quotation marks omitted).

As stated earlier, Plaintiff alleges that corrections

officers at the Jail did not: wear masks or gloves; provide any

sanitizing supplies; or put any social distancing measures in

place. (See Compl. at 4, ¶ II.) Plaintiff also claims that “new

inmates come into our unit from the street and they are sick, they

tested positive for the virus and are here with us.” (Id.)

Further, Plaintiff claims that he was “force[d] into close quarters

with inmates who are showing COVID-19 symptoms, they have dry

cough[], fever, sneezing, difficulty breathing, red eye,

allergies, runnie nose, [and[ runnie eyes.” (Id.) Finally,

Plaintiff complains that his sick call request to get a COVID-19

test was denied even though he had symptoms, including a loss of

taste and smell. (See id. at 6.)

“[C]orrectional officials have an affirmative obligation

to protect inmates from infectious disease[,]” Jolly v. Coughlin,

76 F.3d 468, 477 (2d Cir. 1996), and “[i]t is undisputed that

COVID-19 is a highly dangerous disease that poses a significant

risk of severe illness and death.” Houston v. Capra, No. 20-CV-

02135, 2022 WL 748260, at *8 (S.D.N.Y. Mar. 11, 2022). While

Plaintiff suggests a few different ways in which he may have

contracted the virus,10 his allegations do not establish that these

conditions posed an excessive risk to his health or safety, nor

10 For purposes of this Memorandum and Order, the Court presumes

that Plaintiff contracted the virus, as is alleged. However, given

the absence of a test, whether Plaintiff did have COVID-19, as

opposed to another illness such as influenza or bronchitis, remains

an open question. Indeed, Plaintiff alleges that he has been

diagnosed with tuberculosis. (See Compl. at 4, ¶ II.A.)

that Dr. Henig or Sheriff Dzurenda knew or should have known that

these conditions posed a significant risk of serious illness or

death to him. See Darnell, 849 F.3d at 30, 35.

To the contrary, Plaintiff alleges that, in late March

and early April 2020, Dr. Henig, Sheriff Dzurenda, two doctors,

and others, came into Plaintiff’s “unit/dorm” and “walk[ed] around

cell to cell telling us we don’t need to be tested . . . because

the inmates and officers that have the virus – Covid-19 – [are]

not around us[,] they are in other parts of the building

downstairs.” (Compl. at 4.) Given Plaintiff’s acknowledgement

that Dr. Henig and Sheriff Dzurenda exposed themselves to the same

conditions of which he now complains, he has not established their

deliberate indifference. See Morgan v. Parmiter, No. 9:22-CV-

0147, 2022 WL 913188, at *4 (N.D.N.Y. Mar. 29, 2022) (dismissing

prisoner’s deliberate indifference claim challenging protocols

with regard to the COVID-19 virus under the more exacting Eighth

Amendment standard and explaining “[e]ven assuming Defendants’

response to COVID-19 was imperfect, or negligent, it is not enough

to support a finding of deliberate indifference”) (citing Pike v.

Cerliano, No. 6:20-CV-619, 2021 WL 3704377, at *3 (E.D. Tex. Aug.

3, 2021) (dismissing prisoner’s conditions-of-confinement claim

based upon two instances of officials not wearing masks because

“the general fear of contracting COVID-19 or that COVID-19 is

spreading is insufficient to state a claim under [S]ection 1983”),

report and recommendation adopted, 2021 WL 3700252 (E.D. Tex. Aug.

19, 2021)).

Furthermore, Plaintiff’s allegations belie his claim

that Defendants were deliberately indifferent to his medical

needs. As Plaintiff acknowledges: “they check my blood all the

time” because he is “pre-diabetic”; he receives medication twice

daily for his schizophrenia and bipolar disorder; and he was given

nasal spray for his “stuffy nose”. (Compl. at 7-8.) Though

Plaintiff may disagree with the treatment provided concerning his

symptoms that he believes were due to COVID-19 infection, “[a]

difference in opinion between a prisoner and prison officials

regarding medical treatment does not, as a matter of law,

constitute deliberate indifference.” Sonds v. St. Barnabas Hosp.

Corr. Health Servs., 151 F. Supp. 2d 303, 311 (S.D.N.Y. 2001)

(“Indeed, prison officials and medical officers have wide

discretion in treating prisoners, and Section 1983 is not designed

to permit federal courts to interfere in the ordinary medical

practices of state prisons.”).

Nor has Plaintiff adequately alleged that either of the

Defendants intentionally or recklessly failed to act with

reasonable care to mitigate the risk that the alleged conditions

posed to Plaintiff. Indeed, the Complaint is devoid of any

suggestion that Dr. Henig and/or Sheriff Dzurenda acted

intentionally to impose the alleged conditions, or recklessly

failed to act with reasonable care to mitigate the risk to

Plaintiff. Although Plaintiff alleges that Sheriff Dzruenda “lied

in his memo he hand[ed] out saying that we have 2 full time cleaning

crews [that] have been set up around the clock to clean all areas

of the facility and units with CDC approved disinfectant” (Compl.

at 6), there are no allegations suggesting that Sheriff Dzurenda

knew or should have known these procedures were allegedly not being

followed. (See id. in toto); see also James v. Annucci, No. 20-

CV-6952, 2021 WL 3367530, at *7 (W.D.N.Y. Aug. 3, 2021) (dismissing

“conclusory allegations [that] fail[ed] to allege the subjective

component of an Eighth Amendment claim and contain[ed] no

amplifying details regarding Defendants’ awareness that COVID-19

preventative measures were not being followed”) (internal

quotation marks and citation omitted); Monroe, 2021 WL 6052162, at

*4 (finding plaintiff-detainee did not plausibly allege serious

harm from COVID-19 caused by prison officials for failing to

provide plaintiff-detainee with a mask and for there being

“definitely a lack of social distancing,” even with plaintiff-

detainee’s additional allegations of “definitely insufficient

cleaning,” “the possibility that [the facility] doesn’t have [the]

antiviral filters that are required,” and a “risk of ‘numerous’

inmates exposed to COVID-19”). Again, Plaintiff’s allegations in

this regard are belied by Sheriff Dzruenda’s conduct in visiting

Plaintiff’s dorm and cell on multiple occasions with Dr. Henig and

others in March and April 2020. (See Compl. at 4, 6.) Moreover,

Plaintiff’s allegations that (a) after another inmate in close

proximity to Plaintiff tested positive for the COVID-19 virus, the

inmate was moved to another location, (b) the cell and common areas

of the Jail where that inmate had been were then disinfected, and

(c) thereafter, inmates was given N95 masks (see Suppl. Ltr., ECF

No. 8, at 1-2), demonstrate reasonable care to mitigate the risk

that the alleged conditions posed to Plaintiff. Further, there

are no facts from which the Court can reasonably construe Sheriff

Dzurenda’s or Dr. Henig’s personal involvement in the alleged

failure to ensure the safety protocols were being followed.

Thus, Plaintiff has not satisfied either prong of a

Fourteenth Amendment deliberate indifference claim. “Even

assuming Defendants’ response to COVID-19 was imperfect, or

negligent, it is not enough to support a finding of deliberate

indifference.” Jones v. Westchester County, No. 20-CV-08542, 2022

WL 1406591, at *4 (S.D.N.Y. May 4, 2022) (citations omitted). The

Court is sympathetic to the fact that detained individuals such as

Plaintiff may be at a heightened risk of contracting COVID-19, and

that Plaintiff may have, in fact, been infected with COVID-19.

However, in the absence of deliberate indifference by Dr. Henig or

Sheriff Dzurenda, Plaintiff has not alleged a plausible Section

1983 claim. Thus, Plaintiff’s Section 1983 claims are DISMISSED

WITHOUT PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii),

1915A(b)(1).

C. State Law Claims

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

constitutional claims, only Plaintiff’s state law claims for

negligence and 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 negligence and medical malpractice claims.

See Vaughn v. Phoenix House N.Y., Inc., 957 F.3d 141, 146 (2d Cir.

2020) (“Because the District Court properly dismissed [the

federal] claims, the only claims over which it had original

jurisdiction, it did not abuse its discretion by declining to

exercise supplemental jurisdiction over his [state law] 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.

III. Leave to Amend

The Second Circuit has stated that “[w]hen a motion to

dismiss is granted, the usual practice is to grant leave to amend

the complaint.” Hayden v. County of Nassau, 180 F.3d 42, 53 (2d

Cir. 1999); see also FED. R. CIV. P. 15(a)(2) (“The court should

freely give leave [to amend] when justice so requires.”). In

addition, leave to replead should be liberally granted to pro se

litigants. See Grullon v. City of New Haven, 720 F.3d 133, 140

(2d Cir. 2013) (“[A] pro se complaint generally should not be

dismissed without granting the plaintiff leave to amend at least

once . . . .”); see also Chavis v. Chappius, 618 F.3d 162, 170 (2d

Cir. 2010). Here, in an abundance of caution and with due regard

for Plaintiff’s status as a pro se litigant, Plaintiff is afforded

the opportunity to file an Amended Complaint in accordance with

the guidance set forth above.

Any Amended Complaint shall be clearly labeled “Amended

Complaint,” shall bear the same docket number as this Memorandum

and Order, 20-CV-1991(JS)(SIL), and shall be filed within thirty

(30) days from the date of this Memorandum and Order. Further,

any Amended Complaint must set forth a short and plain statement

of the facts upon which Plaintiff relies to support his claims

that the individuals named as defendants were personally engaged

in misconduct or wrongdoing that violated his constitutional

rights. Plaintiff is advised that any Amended Complaint will

completely replace the original Complaint in this action, and that

no portion of the prior Complaint shall be incorporated into his

Amended Complaint by reference. Plaintiff is advised that if he

fails to submit an Amended Complaint within the time allowed,

judgment will enter without further order and this case will be

closed. Alternatively, rather than file an Amended Complaint,

Plaintiff is free to pursue any valid claims he may have against

any Defendant in state court.

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED:

I. Dr. Henig’s Dismissal Motion (ECF No. 28) is DENIED insofar

as (a) it is brought pursuant to Federal Rule of Civil

Procedure 12(b)(1) and (b) seeks dismissal of Plaintiff’s

state law claims; otherwise, the Dismissal Motion is GRANTED;

II. Pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1),

Plaintiff’s remaining Section 1983 claims against Sheriff

Dzurenda are sua sponte DISMISSED WITHOUT PREJUDICE;

III. The Court declines to exercise supplemental jurisdiction over

Plaintiff’s state claims and they are, thus, DISMISSED

WITHOUT PREJUDICE; and

IV. Plaintiff is GRANTED LEAVE TO FILE AN AMENDED COMPLAINT within

thirty (30) days of the date of this Memorandum and Order as

set forth above.

IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. §

1915(a)(3), the Court certifies that any appeal from this Order

would not be taken in good faith; 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).

IT IS FURTHER ORDERED: that the Clerk of the Court shall

(1) mail a copy of this Memorandum and Order to the Plaintiff at

his address of record with the notation “Legal Mail” on the mailing

envelope; and (2) record such service on the docket;

SO ORDERED.

/s/ JOANNA SEYBERT _

Joanna Seybert, U.S.D.J.

Dated: August 5th , 2022

Central Islip, New York