Carter v. Broome County

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

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ROSE CARTER, as

Administrator of the Estate

of Salladin Barton,

Plaintiff,

-v- 9:16-CV-422

BROOME COUNTY,

DAVID HARDER, Sheriff,

Broome County, MARK

SMOLINSKY, Administrator;

Broome County Jail,

CORRECTIONAL MEDICAL

CARE, INC., EMRE UMAR,

President, Correctional

Medical Care, Inc., MARIA

CARPIO, Chief Executive

Officer, Correctional Medical

Care, Inc., JOHN DOES 4-6,

Employees of Broome County

Sheriff's Department, MAHMOOD

BUTT, FLORANTE TINIO,

KATELYN CLAIRE, SHEENA

FENESCEY, and MORGANNE

SHUTE,

Defendants.

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APPEARANCES: OF COUNSEL:

LAW OFFICES OF ELMER ROBERT ELMER R. KEACH, III, ESQ.

KEACH, III, P.C. MARIA K. DYSON, ESQ.

Attorneys for Plaintiff

One Pine West Plaza

Suite 109

Albany, NY 12205

BROOME COUNTY ATTORNEY'S ROBERT G. BEHNKE, ESQ.

OFFICE JENNIFER L. SUWAK, ESQ.

Attorneys for Defendants Broome County,

David Harder, and Mark Smolinsky

Broome County Office Building

60 Hawley Street, P.O. Box 1766

Binghamton, NY 13902

STEINBERG, SYMER LAW FIRM JONATHAN E. SYMER, ESQ.

Attorneys for Defendants Correctional

Medical Care, Inc., Emre Umar,

Maria Carpio, Mahmood Butt,

Florante Tinio, Katelyn Claire,

Sheena Fenescey, and

Morganne Shute

27 Garden Street

Poughkeepsie, NY 12601

DAVID N. HURD

United States District Judge

MEMORANDUM–DECISION and ORDER

I. INTRODUCTION

On April 13, 2016, plaintiff Rose Carter ("Carter" or "plaintiff"), administrator of the

Estate of Salladin Barton ("Barton" or "decedent"), filed this 42 U.S.C. § 1983 action against

defendants Broome County (the "County"), County Sheriff David Harder ("Sheriff Harder"),

County Jail Administrator Mark Smolinsky ("Administrator Smolinsky"), Correctional Medical

Care, Inc. ("CMC"), CMC President Emre Umar ("President Umar"), CMC Chief Executive

Officer Maria Carpo ("CEO Carpo"), Registered Nurse Kaye Been ("Nurse Been"),

Registered Nurse Dawn Dames ("Nurse Dames"), Licensed Practical Nurse Karen Dickerson

("LPN Dickerson"), Registered Nurse Hope R. ("Nurse Hope"), Registered Nurse Kathy

Scope ("Nurse Scope"), Registered Nurse Judy Olsa ("Nurse Olsa"), three John Doe officers

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employed by the County Sheriff's Office (the "County Does"), and three John Does employed

by CMC (the "CMC Does").

Following some procedural wrangling in which certain groups of named defendants

answered Carter's pleading while other filed motions to dismiss it, plaintiff sought and

received a series of extensions of time before amending her complaint as of right. See FED.

R. CIV. P. 15(a)(1).

As relevant here, Carter's amended pleading (1) eliminated the six nurses and the

three CMC Does1 as defendants in this action; and (2) added claims against County Jail

physician Mahmood Butt ("Doctor Butt"), County Jail psychiatrist Florante Tinio ("Doctor

Tinio"), and three County Jail social workers: Katelyn Claire ("LMSW Claire"), Sheena

Fenescey ("LMSW Fenescey"), and Morganne Shute ("LMSW Shute").

Carter's six-count amended complaint principally alleged that defendants violated

Barton's Eighth Amendment rights while he was being held at the County Jail. According to

plaintiff, Doctor Butt, Doctor Tinio, LMSW Claire, LMSW Fenescey, and LMSW Shute

(collectively the "medical defendants") were deliberately indifferent to an increasingly serious

medical problem that led to decedent's premature death (First Cause of Action).

Carter's amended complaint further alleged that the County Does, employed as

security staff at the Jail, violated Barton's Eighth Amendment rights by repeatedly assaulting

him in response to behavioral problems that manifested from the constitutionally inadequate

medical care he received in the period before his death (Second Cause of Action).

1 The parties formalized the dismissal of these defendants by stipulation. See Dkt. Nos. 42, 45.

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Carter's pleading also asserted § 1983 claims for municipal liability against the County

and CMC and § 1983 claims for supervisory liability against Sheriff Harder, Administrator

Smolinsky, President Umar, and CEO Carpio. Plaintiff alleged that CMC and its leadership

knowingly implemented, and that the County policymaking officials knew of and failed to

correct, an ongoing policy of providing constitutionally inadequate medical care to inmates at

the County Jail as a cost savings measure (Third Cause of Action).

Finally, Carter's pleading asserted state law claims against all of the named

defendants for conscious pain and suffering (Fourth Cause of Action), against the County

and "all Correctional Medical Care defendants" for wrongful death (Fifth Cause of Action),

and against "all Broome County defendants" for assault, battery, emotional distress, and

negligent supervision (Sixth Cause of Action).

On November 2, 2016, the County, Sheriff Harder, Administrator Smolinsky, and the

County Does (collectively the "County defendants") answered Carter's amended

complaint. Dkt. No. 41. However, CMC, President Umar, and CEO Carpio (the "CMC

defendants") moved under Federal Rule of Civil Procedure ("Rule") 12(b)(6) seeking to

dismiss plaintiff's operative pleading for failure to state any viable federal claims against

them.2 Dkt. No. 39. Following several requests for extensions of time, the medical

defendants3 also moved to dismiss plaintiff's claims against them. Dkt. No. 50.

2 This motion was originally noticed on behalf of the some of the nurse defendants as well, Dkt. No.

39, but all of those defendants were later dismissed by stipulation, Dkt. No. 48. The parties' stipulation

appears to have resolved the cross-claims filed by those defendants, too. See id.

3 The medical defendants' notice of motion did not include Doctor Tinio. See Dkt. No. 50. According

to a suggestion of death filed by plaintiff, this defendant passed away on December 3, 2016. Dkt. No. 53.

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On September 29, 2017, a Memorandum–Decision & Order (the "September 29

MDO") granted in part and denied in part the two pending motions. The September 29 MDO

dismissed the individual-capacity Eighth Amendment claims against LMSW Claire, LMSW

Fenescey, and LMSW Shute because Carter's amended complaint did not allege sufficient

factual material to plausibly conclude that any of these three defendants engaged in any

deliberately indifferent behavior that violated Barton's constitutional rights.

The September 29 MDO also dismissed any individual-capacity Eighth Amendment

claims against President Umar and CEO Carpio based on direct or supervisory liability

under § 1983, since plaintiff failed to allege either of these two defendants were "personally

involved" in any of the incidents that gave rise to decedent's eventual death.

However, the September 29 MDO left for discovery against the CMC defendants and

the medical defendants Carter's (1) deliberate medical indifference claim against Doctor Butt

and Doctor Tinio (First Cause of Action); (2) municipal liability claim against CMC based on

that alleged indifference (Third Cause of Action); (3) state law claim for conscious pain and

suffering (Fourth Cause of Action); (4) state law claim for wrongful death (Fifth Cause of

Action); and (5) state law claims for assault, battery, emotional distress, and negligent

supervision (Sixth Cause of Action). Of course, none of plaintiff's various claims were

dismissed against any of the County defendants, since they answered plaintiff's amended

complaint rather than moving for dismissal.

Following the completion of discovery, the County defendants moved under Rule 56

for summary judgment on all of Carter's claims against them. According to the County

defendants, plaintiff (1) has failed to establish Sheriff Harder's or Administrator Smolinsky's

"personal involvement" in any of the alleged misconduct; (2) cannot show that Barton's

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mistreatment and death occurred as a result of any policy or custom attributable to the

County; and (3) did not marshal sufficient facts to demonstrate that the County Does used

excessive force against decedent at any time. The County defendants further argue that

plaintiff's various state law claims must be dismissed because she failed to serve a timely

notice of claim.

The motion has been fully briefed and will be considered on the basis of the

submissions without oral argument.

II. BACKGROUND

For at least a decade before his premature death, Barton suffered from a recurrent,

severe, well-documented mental illness. Defs.' Statement of Material Facts ("Defs.' Facts"),

Dkt. No. 104-11 ¶ 4. From June 10, 2013 until January 14, 2015, the County held decedent

at the Jail. Id. ¶ 1. The parties' expert witnesses disagree on what "ultimately caused"

decedent's passing, but both opine that it resulted from "a medical-related issue." Id. ¶ 3.

On November 15, 2014, and again on December 11, 2014, County Jail officials took

Barton to Wilson Memorial Regional Medical Center, where he was diagnosed with

hyponatremia; i.e., low sodium blood levels, a well-known and well-documented side effect of

Trileptal, a prescription medication decedent took to manage certain aspects of his ongoing

mental illness. See Pl.'s Counter-Statement of Material Facts ("Pl.'s Facts"), Dkt. No.

114 ¶ 1; see also Am. Compl., Dkt. No. 33 ¶ 17.

On both occasions, the hospital advised the County Jail to restrict and monitor

Barton's water intake, and that further blood work would be prudent to better evaluate

decedent's medical condition. Pl.'s Facts ¶ 2. During the second hospitalization, the hospital

recommended Barton undergo a thyroid ultrasound as well. Id.

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In spite of these warnings, Doctor Butt did not restrict Barton's water intake. Pl.'s

Facts ¶ 3. To the contrary, medical staff and other inmates continued to observe decedent

having regular access to water, and in fact decedent "was known for drinking copious

amounts of powdered drinks." Id. ¶ 4. The Jail never conducted any blood testing on

decedent. Id. Nor did it conduct a thyroid ultrasound. Id. ¶ 5. According to a preliminary

report attached to the operative pleading, decedent eventually died from an untreated

medical condition caused by the "prolonged prescribed use of Trileptal and excessive water

intake." Ex. B to Am. Compl.

On several occasions, the New York State Commission of Correction (the

"Commission"), the state oversight agency4 responsible for evaluating all state correctional

facilities, county jails, local police lock-ups, and secure centers, has recommended that

various counties, include Broome County, terminate their medical services contracts with

CMC as a result of inmate deaths. Pl.'s Facts ¶ 7. Indeed, Sheriff Harder admitted in his

deposition to being aware of inmate deaths at other CMC-contracted jail facilities. Id. ¶ 8.

Notably, the Commission recommended that the County "conduct an inquiry into the

fitness of [CMC] as a correctional medical provider." Pl.'s Facts ¶ 9. The Commission also

directed Sheriff Harder to ensure that CMC "made a range of policies [sic] changes" and to

"conduct an investigation into the conduct of its nurses." Id. But Sheriff Harder did not do

any of those things, since he approved of CMC's performance at the Jail. Id. ¶ 10.

The New York State Office of the Attorney General (the "OAG") conducted its own

investigation into CMC's policies and practices. Pl.'s Facts ¶ 11. The OAG's independent

4 Core Services, New York State Commission of Correction,

https://www.ny.gov/agencies/commission-correction.

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auditor made "a range of negative findings about CMC's performance at all of CMC's

facilities." Id. ¶ 13. The results of this investigation were released before Barton's

death. Id. ¶ 11. Sheriff Harder heard about the OAG's investigation, but never inquired

about any of its findings. Id. ¶ 12.

III. LEGAL STANDARD

The entry of summary judgment is warranted when "the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED.

R. CIV. P. 56(c)).

A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit

under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

material fact is genuinely in dispute "if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party." Id.

The movant bears the initial burden of demonstrating that there is no genuine issue of

material fact to be decided with respect to any essential element of the claim. Jeffreys v. City

of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). If this initial burden is met, the opposing party

must show, through affidavits or otherwise, that there is a material issue of fact for

trial. Anderson, 477 U.S. at 250.

Summary judgment is not appropriate if, after resolving all ambiguities and drawing all

factual inferences in favor of the nonmoving party, a review of the record reveals sufficient

evidence for a rational trier of fact to find in the non-movant's favor. Treglia v. Town of

Manlius, 313 F.3d 713, 719 (2d Cir. 2002).

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IV. DISCUSSION

As an initial matter, the County defendants have not done a particularly great job of

advancing their clients' interests with this motion. For instance, and as the relatively brief

factual recitation set forth above probably suggests, defendants have supplied precious little

material from the discovery record in support of their bid for the summary dismissal of each

and every one of the claims asserted against them in this case. See generally Defs.' Facts.

In addition to their three-page Local Rule Statement, the County defendants submitted

an attorney's affidavit that includes, inter alia, portions of the Jail's inmate handbook, some of

Sheriff Harder's deposition testimony, some County policies on how to handle inmates

expressing suicidal ideation, and copies of the expert witness reports. See Suwak Aff., Dkt.

No. 104-1. However, the reader is left to guess at the precise relevance of much of this

additional factual material, since the vast majority of it is not referenced at all in defendants'

Local Rule Statement itself. Compare Defs.' Facts with Suwak Aff. & exhibits.

Notably, the County defendants go on to complain, in both their Local Rule Statement

and accompanying memorandum of law, about the alleged inadequacy of certain

interrogatory responses provided to them in discovery. See, e.g., Defs.' Mem., Dkt. No.

104-12, 1-55; Defs.' Facts ¶ 12. But this federal judicial district, just like every other, has

well-worn, standard procedures for raising, resolving, and if necessary litigating discovery

disputes before the assigned U.S. Magistrate Judge. See, e.g., Local Rule 7.1(d).

Of course, this federal judicial district, just like every other, also adheres to the

nationwide statutory provisions governing how a civil litigant may appeal an adverse

5 Pagination corresponds with CM/ECF.

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discovery ruling to the assigned U.S. District Judge. See 28 U.S.C. § 636(b)(1)(A); FED. R.

CIV. P. 72(a). But discovery is already closed in this case, and had been for months by the

time defendants filed this summary judgment motion in late April 2019. See, e.g., Text

Minute Entry, January 25, 2019; Text Minute Entry, December 19, 2018. In other words, a

motion for summary judgment is not the place to raise this kind of complaint.

These shortcomings operate as an additional burden on the Court, which is tasked "at

the summary judgment motion stage of the litigation [with] carefully . . . discerning whether

there are any genuine issues of material fact to be tried[.]" Gallo v. Prudential Residential

Servs., Ltd. P'Ship, 22 F.3d 1219, 1224 (2d Cir. 1994) (Cardamone, J.).

The importance of this task, and the analytical difficulty attendant with carrying it out

properly, are just two reasons why the Local Rules warn summary judgment litigants that the

"[f]ailure of the moving party to submit an accurate and complete Statement of Material Facts

shall result in a denial of the motion." N.D.N.Y. L.R. 7.1(a)(3) (emphasis added).

As this language suggests, Local Rule 7.1(a)(3) "places the burden on the parties to

marshal the evidence [ ] in support of . . . the motion" for summary judgment. Walsh v. City

of Kingston, 2010 WL 681315, at *2 (N.D.N.Y. Feb. 23, 2010) (McAvoy, J.). Indeed, the

Second Circuit has routinely recognized that local rules governing summary judgment are

"essential tools" that relieve the district courts "of the onerous task of 'hunt[ing] through

voluminous records without guidance from the parties.'" N. Y. State Teamsters Conference

Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 649 (2d Cir. 2005) (quoting Holtz

v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001)).

More generally, a requirement like this accords with the principle of party presentation,

in which courts "rely on the parties to frame the issues for decision and assign to courts the

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role of neutral arbiter of matters the parties present." Greenlaw v. United States, 554 U.S.

237, 243 (2008). As Justice Scalia once explained, "[o]ur adversary system is designed

around the premise that the parties know what is best for them, and are responsible for

advancing the facts and arguments entitling them to relief." Castro v. United States, 540

U.S. 375, 386 (2003) (Scalia, J., concurring in part and concurring in the judgment).

After all, at this particular stage of the proceedings the initial burden is on the movant

to establish why there should not be a trial on one or more of the claims, not on the

non-movant to establish why there should. See, e.g., Celotex Corp., 477 U.S. at 323

(explaining that the movant bears the initial burden of production at summary judgment);

Salahuddin v. Goord, 467 F.3d 263, 272–73 (2d Cir. 2006) (describing two ways movant can

show prima facie entitlement to summary judgment on issues where non-movant will bear the

burden of proof at trial).

Consequently, the County defendants' shortcomings on this important procedural

issue, standing alone, likely provide a sufficient basis on which to deny their summary

judgment motion outright. See, e.g., Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373

F.3d 241, 244 (2d Cir. 2004) (holding denial of summary judgment is warranted where, inter

alia, "the evidence submitted in support of the summary judgment motion does not meet the

movant's burden of production"); Walsh, 2010 WL 681315, at *2 ("In the event that the

moving party fails to comply with Local Rule 7.1(a) (3), the Court is not required to conduct its

own review of the record in support of movant's factual assertions.").

To be clear, though, Carter's opposition to the motion is not without fault. Although

she appropriately included a mirrored response to the County defendants' meager statement

of material facts, Pl.'s Facts at 1-4, and then appropriately included a partial set of additional

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facts allegedly still in dispute, id. at 4-6, she went far beyond the mandate of the Local Rules,

dumping on the Court's docket what appears to be most of the discovery material produced

this action. See Dkt. Nos. 111-13; see also N.D.N.Y. L.R. 26.2 (explaining that parties

should not file discovery with the Court in the absence of a specific reason to do so).

Of course, Carter is entitled to defend against the summary disposition of her claims

by demonstrating that material facts remain in dispute. See N.D.N.Y. L.R. 26.2 (permitting

filing of discovery material in support of "any motion," including summary judgment). But just

like the County defendants, her three-page counter-statement of material facts is not a

co-extensive presentation of the discovery material she discusses in her opposition

memorandum. Compare Pl.'s Facts at 4-6, with Pl.'s Opp'n, Dkt. No. 115 at 6-23 and Dkt.

Nos. 111-13.

Again, this is not how the Local Rules governing summary judgment are supposed to

work. See N.D.N.Y. L.R. 7.1(a)(3) ("The non-movant's response may also set forth any

additional material facts that the non-movant contends are in dispute in separately numbered

paragraphs, followed by a specific citation to the record where the fact is established.").

Carter's opposition memorandum is full of confusion, too. At various points, plaintiff

identifies the wrong municipality as a defendant, Pl.'s Opp'n at 2, 23 (accusing "Monroe

County" of the claimed misconduct), recites the wrong legal standard, id. at 22-23 (setting

forth Rule 12(c) standard for judgment on the pleadings), and advances the wrong analysis

for evaluating the case in its current procedural posture, id. at passim (repeatedly directing

the Court to the sufficiency of her pleadings and allegations rather than the substance of the

discovery record); id. at 32 (asserting the "Court should not dismiss the Plaintiff's complaint

at this early stage").

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More troubling still, nowhere in her opposition memorandum does Carter clearly

identify whether Barton was a pre-trial detainee at the time of his death, whether this status

changed at any point during his detention at the County Jail, or what legal standard is

relevant to the underlying § 1983 claim for deliberate indifference to his serious medical

needs. See generally Pl.'s Opp'n.

Although it is almost certainly the case that Barton was a pre-trial detainee6 during the

relevant time period (since he was at the County Jail), the distinction proves critical to

properly evaluating Carter's federal constitutional claim(s). See, e.g., A.T. ex rel. Tillman v.

Harder, 298 F. Supp. 3d 391, 413 (N.D.N.Y. 2018) (discussing relaxation of deliberate

indifference standard for § 1983 claims brought by pre-trial detainees); Davis v. McCready,

283 F. Supp. 3d 108, 117 (S.D.N.Y. 2017) (same).

Given its importance in the analysis, Carter really should have taken the time to spell it

out. After all, her assertions of § 1983 supervisory liability against Sheriff Harder and

Administrator Smolinsky and of § 1983 municipal liability against the County (and CMC, a

non-movant right now) are all dependent in some way upon an underlying constitutional

violation by one or more subordinate personnel at the Jail (such as Doctor Butt). See, e.g.,

Evans v. Chalmers, 703 F.3d 636, 654 (4th Cir. 2012) (explaining these § 1983 claims are

ordinarily dependent on a "predicate constitutional violation"); Segal v. City of N.Y., 459 F.3d

207, 219 (2d Cir. 2006) (explaining that Monell "does not provide a separate cause of action"

but instead "extends liability to a municipal organization" if "policies or customs that it has

sanctioned" lead to "an independent constitutional violation" (emphasis in original)); Elek v.

6 To be clear, the County defendants acknowledge as much. See Defs. Mem. at 17 ("At the times

alleged in the Complaint the Decedent was a pretrial detainee . . . . ").

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Inc. Vill. of Monroe, 815 F. Supp. 2d 801, 808 (S.D.N.Y. 2011) ("Absent an underlying

constitutional violation, there is no cognizable claim for supervisor liability.").

Even in the context of § 1983 municipal liability, the presence of an underlying

constitutional violation remains a "required predicate" even if the plaintiff elects not to name

the directly responsible official(s) as defendants in the suit. See, e.g., Nardoni v. City of N.Y.,

331 F. Supp. 3d 116, 125 (S.D.N.Y. 2018); see also Askins v. Doe No. 1, 727 F.3d 248, 253

(2d Cir. 2013) ("In fact, the plaintiff need not sue the individual tortfeasors at all, but may

proceed solely against the municipality.").

By way of brief review, Carter's § 1983 claim (First Cause of Action) is based on the

allegedly deliberate indifference of County Jail medical staff to Barton's serious medical

needs. A pre-trial detainee's claim for deliberate medical indifference is analyzed using a

two-pronged standard drawn from Eighth Amendment principles and modified, as

appropriate, to recognize the fact that a pre-trial detainee is entitled to slightly greater

protection under the Fourteenth Amendment. See Singletary v. Russo, 377 F. Supp. 3d 175,

187 (E.D.N.Y. 2019); see also Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) ("A pretrial

detainee's claims are evaluated under the Due Process Clause . . . .").

First, the alleged medical need must be objectively "sufficiently serious." Singletary,

377 F. Supp. 3d at 187. "In determining whether a medical need is sufficiently serious to be

cognizable as a basis for a constitutional claim for deprivation of medical care, we consider

factors such as whether a reasonable doctor or patient would find the injury important and

worthy of treatment, whether the medical condition significantly affects an individual's daily

activities, and whether the illness or injury inflicts chronic and substantial pain." Charles v.

Orange Cty., 925 F.3d 73, 86 (2d Cir. 2019).

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Second, the detainee–plaintiff must show "the officer acted with at least deliberate

indifference to the challenged conditions." Darnell, 849 F.3d at 29. Under this standard, the

plaintiff "must prove that an official acted intentionally or recklessly, and not merely

negligently." Id. at 36. For instance, "[a] plaintiff can prove deliberate indifference by

showing that the defendant official 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 [the plaintiff's]

health or safety." Charles, 925 F.3d at 87 (citation and internal quotation marks

omitted) (emphasis in original).

"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." Charles, 925 F.3d at 87.

A. Municipal Liability

First, the County defendants argue Carter failed to identify any policy or custom of

insufficient medical treatment that might have led to Barton's death. Defs.' Mem. at

6. Although the County defendants concede a general awareness of the fact that decedent's

condition amount to a serious medical need, they nevertheless insist that plaintiff "has failed

to produce any evidence that might establish that persons in positions of responsibility in the

local government were so deliberately indifferent to prior incidents of this type of misconduct

as to tacitly encourage, condone[,] or acquiesce in such behavior." Id. at 7.

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"[U]nlike state tort law, constitutional torts cannot be premised on a theory of

respondeat superior." Walker v. Schult, 365 F. Supp. 3d 266, 284 (N.D.N.Y. 2019) (citing

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). Therefore, "[b]efore a municipality can be held

liable under § 1983, it must be shown to have been 'the moving force of the constitutional

violation.'" Carmichael v. City of N.Y., 34 F. Supp. 3d 252, 262-63 (E.D.N.Y. 2014) (quoting

Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978)); see also Cash v. Cty. of Erie,

654 F.3d 324, 341-42 (2d Cir. 2011) (equating "moving force" with "proximate cause").

"In order to prevail on a claim against a municipality under section 1983 based on acts

of a public official, a plaintiff is required to prove: (1) actions taken under color of law;

(2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that

an official policy of the municipality caused the constitutional injury." Roe v. City of

Waterbury, 542 F.3d 31, 36 (2d Cir. 2008) (citation omitted).

"The fifth element reflects the notion that 'a municipality may not be held liable

under § 1983 solely because it employs a tortfeasor.'" Cowan v. City of Mt. Vernon, 95 F.

Supp. 3d 624, 643 (S.D.N.Y. 2015) (quoting Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397,

403 (1997)). Importantly, this element "can only be satisfied where a plaintiff proves that a

'municipal policy of some nature caused a constitutional tort.'" Roe, 542 F.3d at 36 (citation

omitted). However, a "municipal policy may be pronounced or tacit and reflected in either

action or inaction." Cash, 654 F.3d at 334; see also Kern v. City of Rochester, 93 F.3d 38,

44 (2d Cir. 1996) ("The policy or custom need not be memorialized in a specific rule or

regulation.").

"Accordingly, a plaintiff may satisfy this fifth element with evidence of: '(1) a formal

policy officially endorsed by the municipality; (2) actions taken by government officials

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responsible for establishing the municipal policies that caused the particular deprivation in

question; (3) a practice so consistent and widespread that, although not expressly

authorized, constitutes a custom or usage of which a supervising policy-maker must have

been aware; or (4) a failure by policymakers to provide adequate training or supervision to

subordinates to such an extent that it amounts to deliberate indifference to the rights of those

who come into contact with the municipal employees.'" Benacquista v. Spratt, 217 F. Supp.

3d 588, 599-600 (N.D.N.Y. 2016) (quoting Cowan, 95 F. Supp. 3d at 637)).

Measured against this body of law, the County defendants' bid for dismissal of Carter's

municipal liability claim must be rejected. Plaintiff claims that CMC's policymaking leadership

has deliberately engaged in the practice of directing its employees to provide constitutionally

inadequate medical care and services at facilities, including the County Jail, as a

cost-savings measure. Pl.'s Opp'n at 26. Plaintiff further claims that this policy or practice

has led to serious injuries and even the deaths of inmates in CMC's care, and that this has

happened at correctional facilities throughout Upstate New York and Pennsylvania. Id. at 27.

Carter supports these accusations against CMC by referencing, inter alia, various

reports by the Commission, the OAG's settlement agreement with CMC, and the

independent auditor's adverse findings. Pl.'s Opp'n at 26. Those references, in turn, are

supported by plaintiff's evidentiary submissions in opposition to summary judgment. See id.

at 6-19.

Although this presentation is focused initially on CMC's alleged failures, "[c]ontracting

out prison medical care does not relieve the State of its constitutional duty to provide

adequate medical treatment to those in its custody, and it does not deprive the State's

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prisoners of the means to vindicate their Eighth Amendment rights." West v. Atkins, 487 U.S.

42, 56 (1988).

Accordingly, the County itself "remains liable for any constitutional deprivations

caused by the policies or customs of the [private medical contractor]." Ancata v. Prison

Health Servs., Inc., 769 F.2d 700, 705 (11th Cir. 1985); see also Black v. Allegheny Cty.,

2014 WL 5493811, at *10 (W.D. Pa. Oct. 30, 2014) (denying summary judgment to

municipality on Monell claim where issues of fact remained to be tried on private medical

contractor's policy or practice).

As the Seventh Circuit has observed in evaluating a similar claim of inadequate

medical care, summary judgment on a plaintiff's Monell claim is inappropriate if a fact-finder

could find "systemic and gross deficiencies in staffing, facilities, equipment, or procedures in

a detention center's medical care system" and that "a policy-making official knows about

them and fails to correct them." Dixon v. Cty. of Cook, 819 F.3d 343, 348 (7th Cir.

2016) (citation and internal quotation marks omitted).

Carter's present submissions are up to this task. Plaintiff connects CMC's alleged

provision of constitutionally inadequate medical care and services to the County, which

contracted with CMC to provide medical services at the Jail during the time period relevant

here. Viewed in the light most favorable to her, plaintiff's evidence also establishes that

Sheriff Harder and/or Administrator Smolinsky, in their roles as policymakers for the Jail,

possessed abundant knowledge about CMC's egregious misconduct, knew that CMC was

actively engaged in this misconduct at the County Jail, and yet failed to take any corrective

action to prevent the substantial risk of harm those policies and practices posed to the

inmates in their custody.

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Among other things, Carter's evidence shows that Sheriff Harder in particular (1) knew

CMC's medical practices had caused at least one prior inmate death at the County Jail;

(2) was aware that the state's investigation concluded that CMC's improper medical practices

caused or contributed to that death; (3) had plenty of notice that CMC had not changed its

medical policies or practices in any meaningful measure following that death; and

nevertheless (4) continued to approve of the County's use of CMC without any modifications

to its practices. See Pl.'s Opp'n at 20.

Summary judgment on a municipal liability claim is inappropriate where, as here, the

non-movant's evidence would permit a jury to find that the municipal policymaker's continued

inaction in the face of compelling evidence pointing to a clear, obvious, and ongoing need for

intervention amounted to a ratification of the kind of unconstitutional practice that was likely

to, and eventually did, lead to the death of an inmate who failed to receive treatment for his

serious medical needs. See, e.g., Charles, 925 F.3d at 86 ("In most cases, the actual

medical consequences that flow from the denial of care are highly relevant in determining

whether the denial of treatment subjected the detainee to a significant risk of serious

harm."). Accordingly, Carter's Monell claim against the County will remain for trial.

B. Supervisory Liability

This conclusion does not resolve the question of whether or not Sheriff Harder or

Administrator Smolinsky were "personally involved" in any of this alleged misconduct. As an

initial matter, though, the County defendants incorrectly argue that Carter has sued these two

defendants in their official capacities under § 1983. Defs. Mem. at 16.

It is true, as the County defendants argue, that an official-capacity damages action

against a policymaker is duplicative of a § 1983 municipal liability claim against the

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entity. Even so, the Court does not read the operative pleading as pressing this kind of

claim. For that matter, neither does plaintiff. Pl.'s Opp'n at 28 ("Nor is the Plaintiff bringing

an official capacity suit against [these defendants].").

In fact, Carter acknowledges that neither Sheriff Harder nor Administrator Smolinsky

were directly involved in the day-to-day supervision of Barton's medical care at the County

Jail. Even so, plaintiff alleges that these two supervisory officials can be held "accountable

for their support and acquiescence of policies and practices implemented by [ ] CMC [ ] that

they knew were leading to preventable deaths both in the Broome County Jail and in jails

across New York State." Pl.'s Opp'n at 28.

"Supervisory liability is a concept distinct from municipal liability, and is imposed

against a supervisory official in his individual capacity for his own culpable action or inaction

in the training, supervision, or control of his subordinates." Burwell v. Payton, 131 F. Supp.

3d 268, 302 (D. Vt. 2015). "The personal involvement of a supervisory defendant may be

shown by evidence that: (1) the defendant participated directly in the alleged constitutional

violation; (2) the defendant, after being informed of the violation through a report or appeal,

failed to remedy the wrong; (3) the defendant created a policy or custom under which

unconstitutional practices occurred, or allowed continuance of such a policy or custom,

(4) the defendant was grossly negligent in supervising subordinates who committed the

wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [others] by

failing to act on information indicating that unconstitutional acts were occurring." Odom v.

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Matteo, 772 F. Supp. 2d 377, 403 (D. Conn. 2011) (quoting Colon v. Coughlin, 58 F.3d 865,

873 (2d Cir. 1995)).7

Carter asserts that Sheriff Harder and Administrator Smolinsky are each liable as

supervisors under one or more of the Colon factors. For instance, plaintiff argues that the

evidence establishing her Monell claim almost certainly overlaps with the evidentiary showing

required by the third Colon factor; i.e., that the defendant–official created, or allowed to

continue, the practice challenged as unconstitutional. Additionally and in the alternative,

plaintiff argues the same general body of evidence would serve to demonstrate that these

defendants exhibited "deliberate indifference" to Barton's constitutional rights by "failing to

act on information indicating that unconstitutional acts were occurring."

Viewed in the light most favorable to her, Carter's evidence establishes that Sheriff

Harder and Administrator Smolinsky were responsible for the policymaking process at issue

here. Pl.'s Opp'n at 30. According to plaintiff, the Commission actually requires the Sheriff to

respond to an inmate death by gathering evidence, questioning employees who might have

been involved, and implementing any policy changes necessary to prevent future harm. Id.

Carter illustrates this point by describing how the process unfolded in the wake of the

2011 death of Alvin Rios, another inmate at the County Jail. Pl.'s Opp'n at 30. There, the

Commission directed Sheriff Harder to implement certain policy changes and to conduct an

inquiry into whether CMC should continue to provide medical care at the Jail. Id. at 31.

Carter contends that Sheriff Harder found CMC perfectly adequate as a medical care

provider to the Jail despite knowing (1) of its well-documented history of providing inadequate

7 The continued vitality of all five Colon factors remains an open question post-Iqbal. See, e.g.,

Raspardo v. Carlone, 770 F.3d 97, 117 (2d Cir. 2014).

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medical treatment; and (2) that it provided the particular kinds of inadequate medical

treatment and services that resulted in preventable inmate deaths (e.g., that of Alvin Rios

and Salladin Barton). Pl.'s Opp'n at 31.

In response, Sheriff Harder and Administrator Smolinsky assert that qualified immunity

shields them from liability on the individual-capacity § 1983 supervisory liability claims. Defs.'

Mem. at 11. According to them, the County has "extensive policies addressing treatment of

special needs inmates, including inmates with suicidal ideations." Id. at 11-12.

The County defendants therefore argue that Carter "has failed to demonstrate how a

reasonable authority figure in [defendants'] position would have known or have reason to

known [sic] there was a violation of Mr. Barton's constitutional rights." Id. at 12. They argue

this is especially so where, as here, neither individual defendant bore any direct, personal

responsibility for decedent's medical needs in the medical unit. See id.

"Qualified immunity is a defense available only to individuals sued in their individual

capacity." Askins v. Doe, 727 F.3d 248, 254 (2d Cir. 2013). The doctrine protects public

officials "from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

"When a defendant official seeks summary judgment on the ground that he is entitled

to qualified immunity, the motion should be granted if either the evidence, viewed in the light

most favorable to the plaintiff, is insufficient to establish the violation of a statutory or

constitutional right, or if that right was not clearly established at the time of the alleged

violation." Soto v. Gaudett, 862 F.3d 148, 156 (2d Cir. 2017).

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In other words, "[t]he issues on qualified immunity are: (1) whether plaintiff has shown

facts making out [a] violation of a constitutional right; (2) if so, whether that right was 'clearly

established'; and (3) even if the right was 'clearly established,' whether it was 'objectively

reasonable for the officer to believe the conduct at issue was lawful." Gonzalez v. City of

Schenectady, 728 F.3d 149, 154 (2d Cir. 2013) (citation omitted).

A right is "clearly established" when the "contours of the right [are] sufficiently clear

that a reasonable official would understand that what he is doing violates that

right." Anderson v. Creighton, 483 U.S. 635, 640 (1987); see also Malley v. Briggs, 475 U.S.

335, 341 (1986) (explaining that qualified immunity protects "all but the plainly incompetent or

those who knowingly violate the law.").

Importantly, however, "clearly established law" should not be defined "at a high level

of generality." Ashcroft v. al–Kidd, 563 U.S. 731, 742 (2011). Instead, it must be

"particularized" to the specific facts of the case. Anderson, 483 U.S. at 640; see also

Hancock v. Cty. of Rensselaer, 337 F. Supp. 3d 175, 182 (N.D.N.Y. 2018) (Mordue, J.) ("A

law is clearly established in the Second Circuit if the circuit court or the Supreme Court has

issued decisions that 'clearly foreshadow a particular ruling on the issue.'" (citation omitted)).

Measured against this standard, neither Sheriff Harder nor Administrator Smolinsky

has carried their burden of demonstrating an entitlement to qualified immunity at this

particular stage of the proceedings.

First, "deliberate indifference to an inmate's serious medical need or denial of

adequate medical treatment" has not been constitutionally permissible since at least 1976,

when the Supreme Court decided Estelle v. Gamble. 429 U.S. 97 (holding that government

has an Eighth Amendment "obligation to provide medical care for those whom it is punishing

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by incarceration"); see also Parks v. Blanchette, 144 F. Supp. 3d 282, 300 (D. Conn. 2015)

(citing Estelle to conclude it is "well-established . . . that deliberate indifference to an inmate's

serious medical need or denial of adequate medical treatment was not constitutionally

permitted"); Rahman v. Schriro, 22 F. Supp. 3d 305, 316 (S.D.N.Y. 2014) (finding clearly

established for qualified immunity purposes the "broader right to be free from deliberate

indifference to serious medical needs" and applying it to pre-trial detainee).

Second, the County defendants' present evidentiary submissions are woefully

insufficient, and certainly do not demonstrate that their conduct was objectively reasonable in

light of this clearly established law. See, e.g., Griffin v. Amatucci, 611 F. App'x 732, 733 (2d

Cir. 2015) (summary order) ("The defendants bear the burden of showing they are entitled to

qualified immunity . . . . ").

To the contrary, the County defendants' moving papers fail to give any meaningful

indication about what Sheriff Harder and Administrator Smolinsky did or did not do.8 See

Defs.' Facts. Even looking beyond defendants' three-page Local Rule Statement to the

underlying materials presented in their counsel's affidavit, a Jail handbook, a suicide

prevention manual, copies of some reports from the Jail, and some snippets of a deposition

do not establish the objective reasonableness of either defendant's conduct as a matter of

law. See Suwak Aff. & exhibits.

8 The County defendants belatedly attempted to rectify this error by submitting an affidavit by

Administrator Smolinsky in reply. Dkt. No. 122-1. But it is too late for that right now. Revise Clothing, Inc. v.

Joe's Jeans Subsidiary, Inc., 687 F. Supp. 2d 381, 387 (S.D.N.Y. 2010) ("It is plainly improper to submit on

reply evidentiary information that was available to the moving party at the time that it filed its motion and that

is necessary in order for that party to meet its burden."). The County defendants should plan to present that

evidence at trial.

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On the other hand, Carter's evidence, viewed in the light most favorable to her, readily

permits the conclusion that both Sheriff Harder and Administrator Smolinsky acted totally

unreasonably in light of this clearly established law. Parks, 144 F. Supp. 3d at

300 (characterizing qualified immunity analysis as one that overlaps with deliberate

indifference on summary judgment). Both defendants had abundant notice about the fact

that CMC continued to provide seriously inadequate medical care to inmates, and both

officials knew that this was an ongoing problem across CMC-contracted facilities, including

the County Jail.

Further, the Commission put these defendants on notice that the CMC-contracted

facility they supervised; i.e., the County Jail, needed significant changes to its medical

policies. Yet despite this knowledge, neither defendant took any corrective or investigative

action at the County Jail. As a result of the ongoing failure by CMC to provision appropriate

medical care to inmates at the County Jail, and the failure by these policymaking defendants

to intervene to correct it, Barton died while in the County's custody.

Thus, Carter has established that Sheriff Harder and Administrator Smolinsky were

aware of, and allowed the continuance of, CMC's unconstitutional policy and

practice. Alternatively, plaintiff has established that these defendants exhibited deliberate

indifference by failing to act on information indicating that unconstitutional acts were

occurring at the County Jail.

True or not, qualified immunity would not attach to those facts. If the proof at trial

establishes something significantly less than that, qualified immunity as to one or both of

these supervisory officials might be appropriate at that point. See, e.g., Ruggiero v. Prack,

168 F. Supp. 3d 495, 525 (W.D.N.Y. 2016) ("Where there are facts in dispute that are

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material to a determination of reasonableness, summary judgment on the basis of qualified

immunity is not appropriate.").

C. Excessive Force & The County Does

On the other hand, the County defendants correctly argue that Carter's excessive

force claim against the County Does must be dismissed. Defs.' Mem. at 17.

Carter abandoned this claim when she failed to defend it in her opposition

memorandum. See, e.g., Taylor v. City of N.Y., 269 F. Supp. 2d 68, 75 (E.D.N.Y. 2003)

("Federal courts may deem a claim abandoned when a party moves for summary judgment

on one ground and the party opposing summary judgment fails to address the argument in

any way.").

Even assuming otherwise, Carter cannot proceed against these defendants because

she never established the true identities of the County Does responsible for this alleged

misconduct. See, e.g., Berman v. Durkin, 2017 WL 1215814, at *4 (N.D.N.Y. Mar. 10, 2017)

(Stewart, M.J.) (Report & Recommendation) (recommending dismissal of Doe defendants

after close of discovery), adopted by 2017 WL 1207834 (N.D.N.Y. Mar. 31, 2017) (Kahn,

J.). Accordingly, plaintiff's Second Cause of Action will be dismissed.

D. Notice of Claim

The County defendants argue Carter's various state law causes of action must be

dismissed because she failed to timely file a proper notice of claim. See Defs.' Mem. at

22. Plaintiff responds that she received leave to file a late notice of claim from the County

Clerk. Pl.'s Opp'n at 34-36.

The general rule in federal court is that "state notice-of-claim statutes apply to

state-law claims." Hardy v. N.Y. City Health & Hosp. Corp., 164 F.3d 789, 793 (2d Cir.

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1999). "Under New York law, a notice of claim is a condition precedent to bringing a tort

claim against a municipality." Fincher v. Cty. of Westchester, 979 F. Supp. 989, 1002

(S.D.N.Y. 1997); see also N.Y. COUNTY LAW § 52; N.Y. GEN. MUN. LAW § 50-e(1)(a).

"The notice of claim must set forth, inter alia, the nature of the claim, and must be filed

within ninety days of when the claim arises." Hardy, 164 F.3d at 793. "The purpose of the

notice of claim requirement is to afford the municipality an adequate opportunity to

investigate the claim in a timely and efficient manner and, where appropriate, to settle claims

without the expense and risks of litigation." Fincher, 979 F. Supp. at 1002.

When triggered, the notice-of-claim requirement also "applies with equal force to state

law claims against municipal employees." Cotz v. Mastroeni, 476 F. Supp. 2d 332, 355

(S.D.N.Y. 2007) (citing N.Y. GEN. MUN. LAW § 50-i(1)). However, "[s]ervice of a notice of

claim upon . . . an employee of a [municipality] is not a condition precedent to the

commencement of an action against such person unless the [municipality] is required to

indemnify such person." Grasso v. Schenectady Cty. Pub. Library, 817 N.Y.S.2d 186 (N.Y.

App. Div. 3rd Dep't 2006) (citation and emphases omitted).

In turn, a municipality's duty to indemnify its employee depends "on whether [the

employee was] acting within the scope of [his or her] employment and whether the obligation

to indemnify the employee was formally adopted by a local governing body." Rew v. Cty. of

Niagara, 901 N.Y.S.2d 442, 443 (N.Y. App. Div. 4th Dep't 2010) (internal citations and

quotation marks omitted); see also N.Y. Pub. N.Y. PUB. OFF. LAW § 18(1)(a).

In other words, "[t]he notice prerequisite does not apply to claims asserted against

municipal employees in their individual capacities that allege injuries resulting from

intentional wrongdoing or recklessness." Reed v. Medford Fire Dep't, Inc., 806 F. Supp. 2d

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594, 605 (E.D.N.Y. 2011) (quoting Brenner v. Heavener, 492 F. Supp. 2d 399, 405 (S.D.N.Y.

2007)); see also Seale v. Madison Cty., 929 F. Supp. 2d 51, 72 (N.D.N.Y. 2013) (Suddaby,

J.) (concluding same where complaint alleged "the defendant county employees were acting

outside the scope of their employment, i.e., by the commission of intentional torts").

Carter did not file her notice of claim in the ninety-day period immediately following

Barton's death on January 14, 2015. However, New York law permits a plaintiff to apply for

leave to file a late notice of claim. N.Y. GEN. MUN. LAW § 50-e(5) ("Upon application, the

court, in its discretion, may extend the time to serve a notice of claim . . . .").

"A motion for leave to serve a late notice of claim must be brought within the

applicable Statute of Limitations which, unless tolled, is one year and 90 days from the date

upon which the claim allegedly accrued." Evans v. Brookdale Hosp. Med. Ctr., 599 N.Y.S.2d

84, 85 (N.Y. App. Div. 2d Dep't 1993); see also N.Y. GEN. MUN. LAW § 50-i(1).

Carter petitioned in state court for leave to file a late notice of claim on April 11, 2016,

two days before April 13, 2016, the end of the one year and ninety day limitations

period. See Defs.' Mem. at 22. While she waited for the state court to rule on that request,

plaintiff filed this action in federal court on April 13, 2016, the last day before the running of

the limitations period. Thereafter, in an Order dated June 8, 2016, Broome County Supreme

Court Justice Molly Reynolds Fitzgerald granted plaintiff leave to "file a Late Notice of Claim

within 30 days of the date of [the] Order." Ex. J to Suwak Aff.

The County defendants argue that Carter failed to meet the new deadline set by

Justice Fitzgerald's June 8 Order; i.e., the thirty days that began running from June 8.

Plaintiff acknowledges she did not serve her notice of claim by June 8. However, she claims

that another provision of state law gave her an extra, five-day grace period in which to timely

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file it. As plaintiff explains, a provision of New York's civil procedure law adds five days to

certain time periods when service of the document setting the time period occurs by mail.

Under that provision, "where a period of time prescribed by law is measured from the

service of a paper and service is by mail, five days shall be added to the prescribed period if

the mailing is made within the state." N.Y. C.P.L.R. 2103(b)(2). At least one division of the

Appellate Department has explained that "[t]he extension provided in CPLR 2103(b)(2)

constitutes legislative recognition of and compensation for delays inherent in mail

delivery." Sultana v. Nassau Hosp., 591 N.Y.S.2d 854 (N.Y. App. Div. 2d Dep't 1992).

Carter insists that CPLR 2103(b)(2) gave her an extra five days on top of the thirty

days already given to her by the state court on June 8, which would mean that she actually

had until July 13, 2016 to file her notice of claim. And she did accomplish it in that thirty-five

day time frame: plaintiff mailed her notice of claim to the County by certified mail on July 12,

2016. See N.Y. GEN. MUN. LAW § 50-e(3)(b) (explaining that service of a notice of claim by

"registered or certified mail" is complete when deposited with the postal service).

On the one hand, Carter has not cited to any clear authority that shows CPLR

2103(b)(2)'s five-day grace period applies to a court order granting leave to file a late notice

of claim like the one Justice Fitzgerald issued in her favor on June 8. On the other hand,

Sultana's logic strongly suggest that this five-day extension applies regardless of "whether

the actual number of days for [taking an action] is fixed by statute or by the court." 591

N.Y.S.2d 854. In sum, nothing about this dispute is made any clearer by the parties' present

submissions. Rather, a review of the County defendants' present submissions confirms only

that they have not established that dismissal is warranted on these claims at this time for this

reason. Accordingly, this argument will be rejected.

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In a related vein, the County defendants suggest that Carter's negligence-based

causes of action are also time-barred or fail on the merits. As to the latter argument, it is

rejected on summary judgment in light of plaintiff's present evidentiary submissions.

As to the former argument, both parties appear to measure the timeliness of Carter's

filings from January 14, 2015, the date of Barton's death. But the notice of claim includes

alleged misconduct running the entire length of decedent's imprisonment all the way back to

June 2013, and any discrete claims of negligence arising from earlier instances of

misconduct would likely have accrued on those earlier dates. See, e.g., McCoy v. City of

N.Y., 782 N.Y.S.2d 120, 122 (N.Y. App. Div. 2d Dep't 2004) (suggesting lower court could

only grant late notice of claim as to causes of action accruing "on or after" a certain date).

Although a claim based on a discrete act or omission during this earlier time period

would ordinarily be subject to the three-year limitations period for personal injury claims

arising from negligence, N.Y. C.P.L.R. 214(4), it might well be time-barred in light of the fact

that this three-year limitations period is shortened to one year and ninety days against a

municipality and its agents, servants, and employees, N.Y. GEN. MUN. LAW § 50-i(1). In any

event, the County defendants have not established that this is the case as a matter of law

and therefore this argument will be rejected for now.9

E. Intentional Torts

Finally, the County defendants argue that Carter's state law claim for intentional

infliction of emotional distress must be dismissed. Defs.' Mem. at 19-20. Plaintiff tries to

9 Notably, however, wrongful death claims are subject to a two-year limitations period following the

death, N.Y. EST. POWERS & TRUSTS LAW § 5-4.1, and this two-year period applies even when the wrongful

death claim is asserted against a municipal defendant like the County, N.Y. GEN. MUN. LAW § 50-i(1).

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avoid the dismissal of this claim by restating some of the "outrageous, and certainly reckless

conduct" that caused Barton's death. Pl.'s Opp'n at 33-34.

Upon review, these claims are time-barred. Because they are intentional torts that are

not subject to the notice-of-claim requirement, the applicable statute of limitations is one

year. Quinn v. United States, 946 F. Supp. 2d 267, 278 (N.D.N.Y. 2013) ("In New York, a

cause of action for intentional infliction of emotional distress accrues on the date of injury and

carries a one year statute of limitations."). Carter did not file her complaint in this action until

April 13, 2016. Barton died on January 14, 2015, more than one year before that date, and

plaintiff's complaint does not describe any relevant conduct that occurred after his death. .

Accordingly, those claims will be dismissed.10

V. CONCLUSION

Viewed in the light most favorable to her, Carter's evidence establishes that Barton's

tragic death could have been avoided if the County and its policymakers had taken action to

protect the inmates in their custody from an allegedly well-known danger: CMC's

profit-driven model of constitutionally inadequate medical care.

Therefore, it is

ORDERED that

1. The County defendants' motion for summary judgment is GRANTED in part and

DENIED in part;

2. Carter's Second Cause of Action alleging excessive force against the County Does

is DISMISSED;

10 The parties do not mention Carter's assault and battery claims and the Court declines to address

the issue sua sponte.

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3. The County Does are DISMISSED as defendants in this action; and

4. Carter's state law claims for intentional infliction of emotional distress are

DISMISSED against the County defendants.

The following claims remain for adjudication at trial:

(i) § 1983 deliberate medical indifference claims against Doctor Butt and

Doctor Tinio (First Cause of Action);

(ii) § 1983 deliberate medical indifference claims under Monell against the

County and CMC (Third Cause of Action);

(iii) □ □ 1983 deliberate medical indifference claims under Colon against

Sheriff Harder and Administrator Smolinsky (Third Cause of Action);

(iv) state law claims for conscious pain and suffering against all defendants

(Fourth Cause of Action);

(v) state law claims for wrongful death against the County and the CMC

defendants (Fifth Cause of Action); and

(vi) state law claims for assault, battery, negligent infliction of emotional

distress, and negligent supervision against the County defendants.

The Clerk of the Court is directed to terminate the pending motions.

IT IS SO ORDERED.

DLN

Dated: August 21, 2019

Utica, New York. United Sfates Judge

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