# London v. Nassau County Correctional Facility

> District Court, E.D. New York · August 5, 2022

URL: https://www.frixlaw.com/law-library/cases/10308255

## Case

- **Court:** District Court, E.D. New York
- **Decided:** August 5, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10308255

## How later opinions describe it (automated extraction)

- 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

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
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.
------------------------------------X
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10308255. Public record. Not legal advice.