# McNeil v. Correctional Medical Care, Inc.

> District Court, N.D. New York · September 16, 2019

URL: https://www.frixlaw.com/law-library/cases/10312094

## Case

- **Court:** District Court, N.D. New York
- **Decided:** September 16, 2019
- **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/10312094

## How later opinions describe it (automated extraction)

- holding sickle cell crisis to be a “objectively serious medical condition” for the purposes of the Eighth Amendment
- observing that a plaintiff must demonstrate that, through its deliberate conduct, the municipality was the “moving force” behind the Plaintiff’s alleged injury

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MONIQUE MCNEIL,
as Administratrix of the Estate of
TERRANCE DUNCAN,
Plaintiff,
-against- 9:18-CV-0894 (LEK/DJS)
CORRECTIONAL MEDICAL
CARE, INC., et al.,
Defendants.
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
This action concerns the death of Terrance Duncan while in the custody of the
Schenectady County Correctional Facility (“SCCF”). Dkt. No. 1 (“Complaint”). He is alleged to
have died from complications stemming from sickle cell anemia. Id. ¶¶ 12, 33–34.
On behalf of Duncan’s estate, Monique McNeil has brought claims under 42 U.S.C.
§ 1983 against the County of Schenectady and Schenectady County Sheriff Dominic D’Agostino1

(collectively, the “County Defendants”); and Correctional Medical Care, Inc. (“CMC”), CBH
Medical, P.C. (“CBH”), CMC President Emre Umar, and John Does 1–3 (nurses employed by
CMC and/or CBH as nursing staff at SCCF) (collectively, the “Corporate Defendants”). Id. at

1 Sheriff D’Agostino has since been dismissed from this case by stipulation. See infra
Part II.B.
¶¶ 5–9, 11. Plaintiff has also sued Russell Fricke (a physician and medical director of SCCF
employed by CMC).2 Id. at ¶¶ 10, 19.
Before the Court are two motions to dismiss made pursuant to Federal Rule of Civil
Procedure 12(b)(6): one filed on behalf of the County Defendants and another on behalf of the

Corporate Defendants. Dkt. Nos. 10 (“County Defendants’ Motion to Dismiss”); 10-5 (“County
Defendants’ Memorandum”); 11 (“Corporate Defendants’ Motion to Dismiss”); 11-3
(“Corporate Defendants’ Memorandum”); 22 (“Plaintiff’s Response”); 27 (“County Defendants’
Reply”); 29 (“Corporate Defendants’ Reply”). Within their Motion to Dismiss, Corporate
Defendants also move to strike portions of the Complaint. Corporate Defs.’ Mem. at 17–21
(“Motion to Strike”).
For the following reasons, the County Defendants’ Motion to Dismiss is denied, the

Corporate Defendants’ Motion to Dismiss is granted in part and denied in part, and the Motion to
Strike is denied.
II. BACKGROUND
A. Factual Background
The Court draws all facts, which are assumed to be true, from the Complaint. Bryant v.
N.Y. State Educ. Dep’t, 692 F.3d 202, 210 (2d Cir. 2012). “For purposes of a motion to dismiss,”
the Second Circuit “deem[s] a complaint to include any written instrument attached to it as an
exhibit or any statements or documents incorporated in it by reference . . . and documents that the

2 Although Fricke works for CMC, he, unlike CMC, CBH, Umar, and John Does 1–3,
has answered Plaintiff’s complaint instead of moving to dismiss the case. Dkt. No. 30 (“Fricke
Answer”). Thus, Fricke is not grouped in with the other Corporate Defendants.
2
plaintiffs either possessed or knew about and upon which they relied in bringing the suit.”
Rothman v. Gregor, 220 F.3d 81, 88-89 (2d Cir.2000).
Duncan entered the custody of SCCF on July 3, 2015 and remained there as a pretrial
detainee until he died on August 2, 2015. Compl. 12, 15, 68 n.2. Upon booking into SCCF,
Duncan “reported that he had Sickle Cell Anemia, stomach cancer, and asthma.” Id. 7 15. People
with “Sickle Cell disease can also experience a Sickle Cell crisis, which can last hours to days,
and may result in death without appropriate and timely intervention.” Id. Duncan “had been
successfully managing his medical conditions for years.” Id. ¥ 34.
Over the course of July 2015 and, in particular, in the three days preceding his death,
Duncan “was both evaluated, and, on two occasions, hospitalized for severe pain associated with
his Sickle Cell disease while detained at [SCCF].” Id. J 17. Upon admittance to SCCF, Duncan
was “hospitalized for complaints of pain, and to rule out whether he was ina sickle cell crisis.”
Id. 16. Once the hospital “stabilized” Duncan it discharged him back to jail “with instructions
to return him to the hospital if the symptoms worsened.” Id, On July 5, 2015, a John Doe Nurse
evaluated Duncan “in response to a medical emergency that was called by corrections staff” as he
“was observed on the floor holding onto his chest”. Id. 7 18. On July 7, 2015, Fricke “conducted
a physical [examination]” of Duncan. Id. § 19. During this examination Fricke “was personally
advised of the [Duncan’s] Sickle Cell disease.” Id. “[N]o treatment plan was implemented to
monitor [Duncan’s] condition” besides providing Duncan with “pain medication” even though
Duncan “complained about being in severe pain.” Id. On July 8, 2015, Duncan “filed a sick call
slip with the medical department complaining about severe pain that had been keeping him up
for several days.” Id. {| 20. Duncan “was later observed by a nurse lying on the floor of his cell

complaining about pain.” Id, On July 9 and 13, 2015, Duncan “filed sick call slips requesting to
see Dr. Fricke for complaints about pain.” Id. J 21.
From thereon Duncan’s “condition significantly worsened.” Id. 4 22. On July 30, 2105,
Duncan was hospitalized after he was “evaluated for complaints of severe pain all over his body
on several occasions throughout the day.” Id. 4 23. A John Doe Nurse observed that Duncan “had
been evaluated on multiple occasions over the past several days with no improvement.” Id. At the
hospital, medical staff “ruled out a sickle cell crisis,” but observed Duncan “in severe pain and
discomfort.” Id. 4 24. The staff provided Duncan “with pain medication, and instructed the jail to
return [Duncan] to the hospital if his symptoms persisted or worsened.” Id. These instructions
were relayed to Fricke. Id.
Although Duncan “was returned to jail during the early morning hours of July 31, 2015,”
Duncan’s “symptoms did in fact worsen.” Id. {| 24-25. Between July 31 and August 2, 2015,
Duncan was evaluated “[o]n several occasions” for “complaints of pain, numbness, and
weakness.” Id. §] 25-26. On August 2, 2015, Duncan’s condition “precipitously declined.” Id.
4] 27. That morning, Duncan “was observed by nurses refusing to get out of bed, respond to
orders, or go to the medical department.” Id. § 28. At 5:45 PM, “a corrections officer requested
that a nurse evaluate [Duncan].” Id. §] 29. A John Doe Nurse observed Duncan to be lethargic. Id.
At 9:30 PM, a corrections officer once again requested that a nurse evaluate Duncan. Id. 7 31.
Duncan was observed “sitting on the floor next to his toilet, and unresponsive to commands.” Id.
At 9:40 PM, nurses found Duncan “on his stomach[] and unresponsive,” but “[rJather than
immediately send him to the hospital, Dr. Fricke ordered the nurses to wait another hour to see if
he continued to decline.” Id. § 33. “However, when Mr. Duncan was checked on again

approximately a half hour later, he was unconscious. Although rescue attempts were made, Mr.
Duncan could not be resuscitated. Mr. Duncan died as a result of suffering from an untreated
sickle cell crisis.” Id.
Plaintiff claims CMC, CBH, and Umar “have engaged in a well-documented pattern and

practice of providing inadequate and unqualified medical providers at the various facilities they
manage,” including SCCF, which “resulted in [Duncan’s] death”. See id. ¶¶ 36, 38. “CMC and
CBH’s contract with Schenectady County is an ‘all in,’ capitation contract, where the County
government pays a set fee for health services at their local jail, regardless of the medical needs of
the relevant detainees.” Id. ¶ 38. Thus, CMC’s and CBH’s business model “provides strong and
systemic disincentives for the provision of appropriate healthcare for detainees” because “all
medical care provided to detainees comes directly out of the profit margin of CMC and CBH

Medical.” Id. Moreover, under the business model “nursing assessments assume that the most
minor problem is occurring, and provide palliative treatments” instead of “rul[ing] out the most
serious condition as part of determining the source of a patient’s medical problems.” Id. ¶ 41.
The New York State Commission of Correction (“Commission”) “issued a harshly
critical opinion about the medical care that was provided to Mr. Duncan.” Id. ¶ 12. Although
nursing staff and Fricke suspected that Duncan’s severe symptoms on August 2 were caused by a
drug overdose, “they made no effort to conduct a differential diagnosis to rule out any other
conditions.” Id. ¶¶ 29–30. “The Commission found that, during this encounter, Defendant Fricke

and nursing staff ‘failed to recognized a critically unstable patient that needed immediate
intervention and failed to initiate an emergency transfer to a hospital.’” Id. ¶ 30.

5
The Commission has issued reports on CMC’s failure to provide appropriate care to
inmates at multiple correctional facilities, documenting at least twenty-four inmate deaths
(including three at SCCF) going back to 2009. Id. ¶ 42. Each negative report issued by the
Commission is “sent to the Sheriff of the Correctional Facility, and the executive employees of

[CMC], including Umar.” Id. ¶ 49. In sworn testimony in another litigation, Umar “confirmed
. . . that he has taken no remedial action in response” to the Commission’s reports. Id. ¶ 49. The
Commission concluded, “As the issue regarding CMC’s Inc’s [sic] ability to provide competent
medical care has been the subject of multiple reviews in multiple locations by the Medical
Review Board, the Schenectady County Sheriff should consider terminating the contract for
cause.” Id. ¶ 44. Yet even though “Schnectady County and Sheriff D’Agostino were well aware
of [CMC] and [CBH’s] trouble history, and its capitation business model,” the County “renewed

the company’s contract to provide healthcare at [SCCF] over the course of multiple years.” Id. ¶
62. Plaintiff alleges Sheriff D’Agostino had an incentive to “look the other way while his inmates
die and suffer egregious injuries” because he received “thousands of dollars” in “campaign
contributions” from CMC. Id. ¶¶ 60–61.
The New York State Attorney General also “subjected [CMC] to a lengthy investigation”
at the end of which CMC was required to “sign a consent decree.” Id. ¶¶ 45, 54. The settlement
agreement found that CMC “employed ‘unlicensed and inexperienced staff; inadequate staffing;
lack of adequate medical oversight; and failure to adhere to medical and administrative protocols

and procedures.’” Id. ¶ 56. And in a press release describing the settlement, the Attorney General
stated that “CMC’s actions represented ‘substandard care and mismanagement,’ and that CMC
was ‘shortchanging medical services’ for detainees.’” Id. ¶ 55. The Attorney General also
6
directed an outside company to audit CMC’s medical practices at the Albany County
Correctional Facility and the audit found that “almost no sick call encounters were assessed by
the nurses in compliance with the robust, well-developed nursing protocols set forth by CMC;”
that “[n]ursing assessments were minimal and often superficial. In particular, complaints of pain

were poorly assessed;” and that “the sick call process is almost exclusively a reactive process;
nurses did not initiate follow up with inmates to check progress of a condition.” Id. ¶ 47 (internal
quotation marks omitted). And after conducting a review of the Tioga County Jail, the Attorney
General found that “CMC staff did not ‘make necessary referrals to a psychiatrist or physician.’”
Id. ¶ 59.
There have been a number of federal lawsuits brought in New York and Pennsylvania
against CMC related to the denial of care or the provision of inadequate care to inmates who died

or were severely injured. Id. ¶ 42. Some of these cases have survived motions to dismiss and
resulted in settlements. Id.
B. Procedural History
On July 31, 2018, McNeil, as administratrix of Duncan’s estate, filed a complaint in this
action. Compl. The Complaint brought two causes of action. Id. ¶¶ 67–78. In her first cause of
action, Plaintiff alleged violations of the Fourteenth Amendment and 42 U.S.C. § 1983 against
Fricke and John Does 1–3 for providing Duncan with inadequate medical care. Id. ¶¶ 67–72. In
her second cause of action, Plaintiff alleged violations of the Fourteenth Amendment under

§ 1983 against all defendants (except John Does 1–3) for their implementation of policies which
provide inadequate medical care to detainees at SCCF and “many other local jails across the

7
state.” Id. ¶¶ 73–78.3 Plaintiff has requested compensatory damages, punitive damages (except
from Sherif D’Agostino), and attorneys’ fees. Id. ¶ 79, at 27.
On October 4, 2018, County Defendants filed their Motion to Dismiss. Cty. Defs.’ Mot
Dismiss. And on October 6, 2018, Corporate Defendants filed their Motion to Dismiss and

Motion to Strike. Corp. Defs.’ Mot Dismiss; Mot. Strike. On November 2, 2018, this Court
entered a stipulation signed by both parities dismissing Sheriff D’Agostino from the case. Dkt.
No. 19 (“Stipulation of Discontinuance”). Plaintiff filed a response to each Motion to Dismiss
that same day. Pl.’s Resp. On November 14 and 16, 2018, County Defendants and Corporate
Defendants replied to Plaintiff’s Response, respectively. Cty. Defs.’ Reply; Corp. Defs.’ Reply.
Fricke filed his answer to the Complaint on December 7, 2018. Dkt. No. 30 (“Fricke Answer”).
III. LEGAL STANDARD

A. Motion to Dismiss
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a
complaint must contain sufficient factual matter . . . ‘to state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. In assessing whether this standard has been met, courts “must accept all
allegations in the complaint as true and draw all inferences in the light most favorable to the
non-moving party’s favor.” In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007)

3 Although not explicitly stated, the Court construes Plaintiff’s second cause of action to
assert municipal liability under Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658
(1978).
8
(internal citation omitted).
B. Motion to Strike
Under Federal Rule of Civil Procedure 12(f), the Court may strike “an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f).
Motions to strike, though, are “highly disfavored,” Lee v. E*Trade Fin. Corp., No. 12-CV-6543,
2013 WL 4016220, at *7 (S.D.N.Y. Aug. 6, 2013), and “will be denied unless the matter asserted
clearly has no bearing on the dispute or the matter is significantly prejudicial to one of the
parties,” Citigroup, Inc. v. Wachovia Corp., 613 F. Supp. 2d 485, 489 (S.D.N.Y.2009) (internal
citations omitted). Indeed, “[i]t is settled in this Circuit that [such a] motion will be denied
‘unless it can be shown that no evidence in support of the allegation would be admissible.’” Kehr
ex rel. Kehr v. Yamaha Motor Corp., 596 F. Supp. 2d 821, 829 (S.D.N.Y. 2008) (quoting Lipsky
v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir. 1976)). “Thus the courts should not
tamper with the pleadings unless there is a strong reason for doing so.” Lipsky, 551 F.2d at 893.
IV. DISCUSSION
A. Motion to Dismiss
1. Section 1983 Generally
“42 U.S.C. § 1983 provides a civil claim for damages against any person who, acting
under color of state law, deprives another of the right, privilege or immunity secured by the
Constitution or the laws of the United States.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir.
1999). Section 1983 does not create any substantive rights; it provides civil litigants a procedure
to redress the deprivation of rights established elsewhere. Id. (citing City of Oklahoma City v.
Tuttle, 471 U.S. 808 (1985)). “To prevail on a § 1983 claim, a plaintiff must establish that a
person acting under the color of state law deprived him of a federal right.” Id.

2. Section 1983 Claims for Denial of Medical Care
a. Legal Standard
Where a plaintiff was allegedly deprived of medical care, courts construe the rights the
plaintiff seeks to vindicate as arising under either the Eighth Amendment prohibition against
cruel and unusual punishment, Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009), or the
Fourteenth Amendment’s Due Process Clause, Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir.
2017). However, “Eighth Amendment scrutiny is appropriate only after the State has complied

with the constitutional guarantees traditionally associated with criminal prosecutions . . . . The
State does not acquire the power to punish with which the Eighth Amendment is concerned until
after it has secured a formal adjudication of guilt in accordance with due process of law.” City of
Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (internal quotation marks and alterations
omitted).
Instead, “[a] pretrial detainee’s claims of unconstitutional conditions of confinement are
governed by the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and

Unusual Punishments Clause of the Eight[h] Amendment.” Darnell, 849 F.3d at 29. The Second
Circuit has clarified:
In Darnell, the plaintiffs complained, inter alia, that the facility where
they were detained was unsafe and unsanitary. Although Darnell did
not specifically address medical treatment . . . the same standard
applies to claims for deliberate indifference to medical needs because
deliberate indifference means the same thing for each type of claim
under the Fourteenth Amendment.
Charles v. Orange Cty., 925 F.3d 73, 87 (2d Cir. 2019) (internal citations and quotation marks
omitted). Therefore, because Duncan was merely a pretrial detainee, Compl. ¶ 68 n.2, and not a
10
sentenced prisoner, his claim is properly brought as a violation of his Fourteenth Amendment
rights.

Before Darnell, a plaintiff alleging deliberate indifference to medical needs needed to
satisfy two prongs: an “objective prong” showing that “the alleged deprivation [was] sufficiently
serious, in the sense that a condition of urgency, one that may produce death, degeneration, or
extreme pain, existed,” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (quoting Hathaway v.
Coughlin, 99 F.3d 550, 553 (2d Cir. 1996),* and a “‘mens rea prong,’ or ‘mental element
prong’—showing that the officer acted with at least deliberate indifference to the challenged
conditions,” Darnell, 849 F.3d at 29. Prior to Darnell, the second prong was assessed subjectively
in claims brought under both the Eighth and Fourteenth Amendments. See Spavone v. N.Y. State
Dep’t of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013) (“The second requirement is subjective:
the charged officials must be subjectively reckless in their denial of medical care.”); Caiozzo,
581 F.3d at 70 (“[T]he standard for deliberate indifference is the same under the Due Process
Clause of the Fourteenth Amendment as it is under the Eighth Amendment.”).
However, in light of the Supreme Court’s ruling in Kingsley v. Hendrickson, 135 S. Ct.
2466, (2015), the Second Circuit has held that in claims brought pursuant to the Fourteenth
Amendment:
[T]he pretrial detainee must prove that the defendant-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

* The analysis of the “objective prong” is the same under both the Eighth and Fourteenth
Amendments. Darnell, 849 F.3d at 30.
11

health or safety. In other words, the “subjective prong” (or “mens rea
prong”) of a deliberate indifference claim is defined objectively.
Darnell, 849 F.3d at 35. “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 (emphasis in original).

Determining whether a deprivation is sufficiently serious under the objective prong
involves two inquiries. Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006). The first question
is whether the plaintiff was actually deprived of adequate medical care. Id. Prison officials who
act “reasonably” in response to the inmate’s health risk will not be found liable under the Eighth
Amendment because the official’s duty is only to provide “reasonable care.” Id. at 279-80 (citing
Farmer v. Brennan, 511 U.S. 825, 844-47 (1994)). The second part of the objective-prong
analysis asks whether the purported inadequacy in the provision medical care is “sufficiently
serious.” Salahuddin, 467 F.3d at 280. The court must examine how the care was inadequate and
what harm the inadequacy has caused or will likely cause the prisoner. Id. (citing Helling v.
McKinney, 509 U.S. 25, 32-33 (1993)). If the “unreasonable care” consists of a failure to
provide any treatment, then a court examines whether the inmate’s condition itself is “sufficiently
serious.” Id. (citing Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003). Factors to
determine the “seriousness of the medical condition include whether a reasonable doctor or
patient would find it important and worthy of comment, whether the condition significantly

12

affects an individual’s daily activities, and whether it causes chronic and substantial pain.”
Salahuddin, 467 F.3d at 280 (internal quotation marks and alterations omitted).
b. Application
Plaintiff claims that John Does 1–3 and Fricke exhibited deliberate indifference to
Duncan’s medical needs. Compl. ¶¶ 67–72. As Fricke has not sought dismissal of Plaintiff’s

Complaint regarding her deliberate indifference claim against him, the Court addresses the
Corporate Defendants’ Motion to Dismiss only with regards to the John Does.
The objective prong is satisfied only if Duncan was deprived of adequate care. See
Salahuddin, 467 F.3d at 279. The Court finds Plaintiff has sufficiently pleaded that John Does
1–3 deprived Duncan of adequate medical care. They “failed to recognize Duncan’s declining
physical and mental status on several occasions that should have initiated an immediate transfer
to a hospital.” Compl. ¶ 35 (internal quotation marks omitted). They also failed to “perform an
adequate and timely nursing assessment based on critical information reported by a [nurse]

regarding Duncan’s physical appearance and lethargy.” Id. “While disagreements regarding
choice of treatment are generally not actionable under the Eighth Amendment, judgments that
have no sound medical basis, contravene professional norms, and appear designed simply to
justify an easier course of treatment (in this case, no treatment) may provide the basis of a claim.”
Stevens v. Goord, 535 F. Supp. 2d 373, 388 (S.D.N.Y. 2008). Despite evaluating Duncan on
several occasions for “complaints of pain, numbness, and weakness” that worsened between July
31 and August 2, 2015, John Does 1–3 did not send Duncan to the hospital even though SCCF

was instructed “to return [Duncan] to the hospital if his symptoms persisted or worsened.”
Compl. ¶¶ 22, 24–25.
13
Regarding the second part of the objective prong inquiry, sickle cell anemia, and sickle
cell crisis, represents a “sufficiently serious” medical condition. Lewis v. McGraw, No. 2-CV-
5568, 2005 WL 3050306, at *8 (S.D.N.Y. Nov. 14, 2005) (“[T]he Court accepts that sickle cell
anemia and the type of crises that Lewis describes—those involving a risk of organ deterioration
and failure—may be the type of serious medical condition toward which deliberate indifference
could constitute a constitutional violation.”); see also Reyes v. Gardener, 93 F. App’x 283, 284
(2d Cir. 2004) (holding sickle cell crisis to be a “objectively serious medical condition” for the
purposes of the Eighth Amendment). As evidenced by Duncan’s severe pain, lethargy, and
eventual death while incarcerated at SCCF, his sickle cell anemia (and accompanying sickle cell
crisis) were “condition[s] of urgency that may result in degeneration or extreme pain.” Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal quotation marks omitted), “where the
failure to treat .. . could result in further significant injury or the unnecessary and wanton
infliction of pain,” Harrison v. Barkley, 219 F.3d 132, 137 (2d. Cir. 2000) (internal quotation
marks omitted).
Finally, the subjective prong is satisfied since John Does 1-3 “knew[] or should have
known” that failing to provide Duncan with medical treatment for his sickle cell disease “posed
an excessive risk to [his] health or safety.” See Darnell, 849 F.3d at 35; see also Charles, 925
F.3d at 87. According to Plaintiff, Duncan “reported that he had Sickle Cell Anemia... .”
Compl. § 15. And, during Duncan’s brief period of incarceration at SCCF, the nursing staff
observed Duncan on multiple occasions in significant pain or in a lethargic state. See id. JJ 18,
20, 25-26, 29. On two occasions, Duncan was “hospitalized for severe pain associated with his
Sickle Cell Disease while detained at [SCCF].” Id. 417. Yet just before his death, nurses found

14

Duncan “on his stomach[] and unresponsive” but did not send him to the hospital even though
hospital staff had “instructed the jail to return [Duncan] to the hospital if his symptoms persisted
or worsened”. Id. ¶¶ 24, 33. “Plaintiff[’s] allegations, if proven true, are sufficient to establish
that Defendants knew, or should have known, of the substantial risk that” Duncan would “suffer

serious adverse health consequences if” he were not provided with adequate medical treatment,
“such that a fact-finder could infer reckless disregard beyond mere negligence or medical
malpractice.” See Charles, 925 F.3d at 89.
The SCCF medical staff is bound by ethical obligations not necessarily applicable to
other employees of the correctional facility. See Rhinehart v. Scutt, 894 F.3d 721, 738 (6th Cir.
2018) (“A doctor, after all, is bound by the Hippocratic Oath, not applicable to the jailor, and the
physician’s job is to treat illness, not punish the prisoner.”). The SCCF had a professional

obligation to safeguard Duncan’s well-being. Plaintiff’s allegations, if true, suggest the SCCF
medical staff consciously disregarded their ethical obligations leading to Duncan’s death.
Prisoners are entitled to no less medical care than those outside prison.
In sum, the Court finds Plaintiff has plausibly stated a claim of deliberate indifference
based on John Does 1–3’s denial of adequate treatment. Accordingly, Corporate Defendants’
Motion to Dismiss the deliberate indifference claims against John Does 1–3 is denied.
3. Section 1983 Claims Against Municipalities, namely, “Monell Claims”
Plaintiff claims that Corporate Defendants implemented policies and practices aimed at
providing inadequate medical care to inmates and thereby violated Duncan’s constitutional rights

pursuant to Monell, 436 U.S. at 691. Compl. ¶¶ 73–76, 78. Plaintiff further alleges that, under
Monell, Schenectady County “is directly liable for the actions of [CMC] and [CBH] as they
15
cannot delegate their constitutionally mandated responsibility to provide health care to detainees
at a local jail.” Id. at 77. Both Corporate Defendants and County Defendants seek dismissal of
Plaintiff's Monell claims. Corp. Defs.” Mem. at 13-16; Corp. Defs.’ Reply at 8-12; Cty. Defs.’
Mem. at 7-12; Cty. Defs.’ Reply at 1-5. As Fricke has not sought dismissal of Plaintiff's
Complaint regarding her Monell claim against him, the Court addresses the Corporate
Defendants’ Motion to Dismiss only with regards to CBH, CMC, and Umar.
a. Legal Standard
“[A] municipality cannot be held liable [under Section 1983] solely because it employs a
tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat
superior theory.” Monell, 436 U.S. at 691 (emphasis in original). “Instead, it is when execution
of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy, inflicts the injury that the government as an
entity is responsible under § 1983.” Id. at 694. “Monell does not create a stand-alone cause of
action under which a plaintiff may sue over a governmental policy, regardless of whether he
suffered the infliction of a tort resulting from the policy.” Askins v. Doe No. 1, 727 F.3d 248,
253 (2d Cir. 2013). Rather, “[l]iability under § 1983 is imposed on the municipality when it has
promulgated a custom or policy that violates federal law and, pursuant to that policy, a municipal
actor has tortiously injured the plaintiff.” Id. “Official municipal policy includes” not only “the
decisions of a government’s lawmakers,” but also “the acts of its policymaking officials, and
practices so persistent and widespread as to practically have the force of law. .. . These are
‘action[s] for which the municipality is actually responsible.’” Connick v. Thompson, 563 U.S.
51, 61 (2011) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80 (1986)). Thus, a

16

§ 1983 plaintiff need not prove that his injury was caused by an explicitly stated municipal rule
or regulation.
A municipality may be liable for its inaction if, in its failure to act, it “exhibit[ed]
deliberate indifference to constitutional deprivations caused by subordinates.” Cash v. Cty. of
Erie, 654 F.3d 324, 334 (2d Cir. 2011) (internal quotation marks omitted), cert. denied, 565 U.S.
1259 (2012); see generally City of Canton, Ohio v. Harris, 489 U.S. 378, 388-92 (1989). “[A]
municipal policy of deliberate indifference . .. may be shown by evidence that the municipality
had notice of complaints” of violations “but repeatedly failed to make any meaningful
investigation into such charges.” Outlaw v. City of Hartford, 884 F.3d 351, 380 (2d Cir. 2018).
“Thus, Monell liability, by its nature, will often turn on evidence concerning victims other than
the plaintiffs and alleged misfeasors other than the individual defendants.” Id. Awareness of
“highly publicized incidents” at other New York correctional facilities, combined with a failure
to take appropriate action, can be sufficient to establish a Monell claim against a policy-maker.
Cash, 654 F.3d at 336.
In addition, to establish Monell liability, a plaintiff must show a causal link between the
policy, custom, or practice and the alleged constitutional injury. Roe v. City of Waterbury, 542
F.3d 31, 36 (2d Cir. 2008) (observing that a plaintiff must demonstrate that, through its deliberate
conduct, the municipality was the “moving force” behind the Plaintiff’s alleged injury) (internal
quotation marks omitted).
“Although Monell dealt with municipal employers, its rationale has been extended to
private businesses.” Rojas v. Alexander’s Dept. Store, Inc., 924 F.2d 406, 409 (2d Cir. 1990); see
Bess v. City of New York, No. 11-CV-7604, 2013 WL 1164919, at *2 (S.D.N.Y. Mar. 19, 2013)

17

(“In providing medical care in prisons, [defendant corporation] performs a role traditionally
within the exclusive prerogative of the state and therefore, in this context, is the functional
equivalent of the municipality.”). A private company providing medical care to prisoners on
behalf of a county may, therefore, be liable under a municipal liability theory if it maintains a

custom or policy that causes a violation of a prisoner’s constitutional rights, and is found to be
acting under the color of state law. See Shomo v. City of New York, 579 F.3d 176, 185 n.3 (2d
Cir. 2009) (allowing prisoner to replead municipal liability claim against private medical
provider to determine if it was acting under color of state law). “The traditional definition of
acting under color of state law requires that the defendant in a § 1983 action has exercised power
possessed by virtue of state law and made possible only because the wrongdoer is clothed with
the authority of state law.” Carlos v. Santos, 123 F.3d 61, 65 (2d Cir. 1997) (internal quotation

marks omitted).
b. Application
Plaintiff alleges that all Defendants, except John Does 1–3, had a policy and custom of
unconstitutionally depriving prisoners of adequate health care. Compl. ¶¶ 73–78. Plaintiff further
alleges that this policy caused Duncan’s death. Id. ¶ 78.
(1) CBH and CMC
CBH is the medical provider at SCCF, where it performs a function traditionally “within
the exclusive prerogative of the state.” See Bess, 2013 WL 1164919 at *2; Comp. ¶ 6. It is
therefore the “functional equivalent of the municipality,” and potentially subject to Monell
liability. Id. However, Corporate Defendants argue that “[t]he Complaint contains no allegation
that [CMC] was responsible for providing medical care at SCCF for the relevant time period.”

18
Corp. Defs.’ Mem. at 13. Plaintiff admittedly does not allege CMC’s involvement in the
provision of medical care at SCCF beyond the execution of a contract between CMC and
Schenectady County to provide medical services at the jail for multiple years. Compl. JJ 38, 46,
62. However, the existence of this contractual arrangement suggests that CMC had a policy of
sanctioning inadequate medical care that violated Plaintiffs constitutional rights and therefore
affected the health care Plaintiff received at SCCF. See D’Agostino v. Montgomery Cty., No. CA
11-7728, 2012 WL 425071, at *4 (E.D. Pa. Feb. 9, 2012) (Finding “Plaintiff's allegation that the
County and CMC entered into a written contract which created a financial disincentive to meet
the serious medical needs of inmates who required referral to outside medical providers” along
with “the allegation that” a doctor “acted pursuant to a resulting policy, practice or custom which
discouraged outside referrals, is sufficient to state a claim of [Monell liability] at this stage of the
litigation”). Plaintiff alleges that Schenectady County has a contract with CMC that provides the
same disincentives as the policy discussed in Agostino. See Compl. § 38. Plaintiff further
alleges that such disincentives “affected the care provided to Mr. Duncan.” Id. Consequently, the
existence of the aforementioned contract and Plaintiff's “allegations of a problematic practice or
policy, known to and ratified by defendants, of denying medical care for cost-saving reasons
sufficiently elevate the Complaint, perhaps only barely, from being merely a blanket, general
assertion of entitlement to relief.”” See Kenney v. Montgomery Cty., No. CIV.A. 13-2590, 2013

> Corporate Defendants’ reliance on Iacovangelo v. Corr. Med. Care, Inc., No.
13-CV-6466, 2014 WL 4955366, (W.D.N.Y. Oct. 2, 2014), aff'd in part, vacated in part,
remanded, 624 F, App’x 10 (2d Cir. 2015) does not change the Court’s conclusion. In
Iacovangelo, the Court found that “given the very large number of inmates that CMC employees
must have treated over the years on a continuous basis, nine unrelated deaths, five of which were
by suicide and one of which was due to an undetermined cause, over the course of several years
does not plausibly suggest the existence of a policy of providing sub-standard care in order to
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WL 5356862, at *7 (E.D. Pa. Sept. 25, 2013) (citations and internal quotation marks omitted).
The Court therefore declines to dismisses Plaintiff's claims of Monell liability against CBH and
CMC.
(2) Umar
Plaintiff appears to bring a claim against Umar based on his personal involvement in
Duncan’s inadequate treatment because he “was responsible for the practices of his company that
led to widespread constitutional violations, including preventable deaths and grievous injuries
suffered by detainees that were under CMC/CBH’s care.” PI.’s Resp. at 20-21. However,
Plaintiff's allegations of such personal involvement are too thin. All that Plaintiff has alleged is
that Umar is president of CMC, that he once testified to the fact that CMC’s profit margins vary
with the amount of services CMC provides, that Umar once provided a bonus to and offered to
pay legal fees for an employee found by the New York State Department of Education to have
practiced without a medical license in violation of state law, that Umar received the
Commission’s negative reports regarding CMC’s provision of medical care at correctional

save money, such as is alleged here.” Id. at *16. Here, though, Plaintiff cites to Commission
reports documenting at least twenty-four inmate deaths (including three at SCCF) going back to
2009. Compl. § 42. Furthermore, the Iacovangelo court did not consider whether a county’s
contract with CMC bears on the issue of CMC’s Monell liability.
Additionally, Helijas v. Corr. Med. Care, Inc., No. 15-CV-1049, 2016 WL 5374124
(N.D.N.Y. Sept. 26, 2016), upon which Corporate Defendants also rely, does not change the
Court’s conclusion. The Helijas court found that the plaintiff had “not alleged facts plausibly
suggesting a sufficiently widespread practice among CMC employees” to support a holding that
the plaintiff sufficiently alleged Monell liability, id. at *15, but the Court concludes that Plaintiff
has done so here. Moreover, like in Iacovangelo, the Helijas court did not consider whether a
county’s contract with CMC bears on the issue of CMC’s Monell liability.

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facilities, and that Umar testified in another litigation he has failed to take action in response to
the Commission’s reports. Compl. ¶¶ 9, 37, 42, 49. Plaintiff has not sufficiently alleged details
about Umar’s involvement in creating or allowing unconstitutional policies, such as CMC’s
policy of sanctioning inadequate medical care, or how his actions caused violations of Duncan’s

constitutional rights. See Barnes v. Cty. of Broome, No. 17-CV-1398, Memorandum-Decision
and Order, at 26 (N.D.N.Y. filed Aug. 8, 2018) (Kahn, J.) (dismissing a Monell claim against
Umar on similar set of facts and for similar reasons). Hence, Plaintiff’s allegations are
insufficient to demonstrate a basis for subjecting Umar to Monell liability, and the Court grants
Corporate Defendants’ Motion to Dismiss as to Umar.
(3) Schenectady County
Plaintiff claims, “The County of Schenectady is directly liable for the actions of [CMC]
and [CBH] as they cannot delegate their constitutionally mandated responsibility to provide
health care to detainees at a local jail.” Compl. ¶ 77. The Court finds persuasive Plaintiff’s

discussion of Ancata v. Prison Health Servs. Inc., 769 F.2d 700 (11th Cir.1984) in support of this
claim. Pl.’s Resp. at 24–25. In Ancata, the Eleventh Circuit held that Broward County could not
relieve itself of liability for constitutional violations by contracting away, with private entities,
the duty to provide medical care to inmates. The plaintiff, who represented the estate of the
deceased, sued Broward County, its sheriff, and Prison Health Services (the private entity
responsible for providing medical care to those housed at the Broward County Jail) pursuant to §
1983 alleging cruel and unusual treatment based on deliberate indifference to the deceased’s

medical needs. Id. at 701. While the district court dismissed all claims against all defendants, the
circuit court reversed. Id. at 701, 705. In regards to Broward County the court noted:
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The federal courts have consistently ruled that governments, state and
local, have an obligation to provide medical care to incarcerated
individuals. This duty is not absolved by contracting with an entity
such as Prison Health Services. Although Prison Health Services has
contracted to perform an obligation owed by the county, the county
itself remains liable for any constitutional deprivations caused by the
policies or customs of the Health Service. In that sense, the county’s
duty is non-delegable.
Id. at 705 (internal citation omitted and emphasis added).

Although Plaintiff's Complaint focuses on how CMC and CBH, rather than Schenectady
County, had a policy of providing inappropriate medical care to detainees at SCCF, here, as in
Carter v. Broome Cty., No. 16-CV-422, 2019 WL 3938088 (N.D.N.Y. Aug. 21, 2019), “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.” Id. at *9; Compl. {ff 38, 46, 62. “Contracting 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 prisoners of the means to vindicate their Eighth
Amendment rights.” Carter, 2019 WL 3938088, at *9 (internal quotation marks and alterations
omitted) (quoting West v, Atkins, 487 U.S. 42, 56 (1988); see also King v. Kramer, 680 F.3d
1013, 1020 (7th Cir. 2012) (“The County cannot shield itself from § 1983 liability by contracting
out its duty to provide medical services . . . [t]he underlying rationale is not based on respondeat
superior, but rather on the fact that the private company’s policy becomes that of the County if
the County delegates final decision-making authority to it.”). Accordingly, Schenectady County
“remains liable for any constitutional deprivations caused by the policies or customs” of CMC
and CBH. See Ancata, 769 F.2d at 705; see also Black v. Allegheny Cty., 2014 WL 5493811, at

22

*10 (W.D. Pa. Oct. 30, 2014) (denying summary judgment to Allegheny County on a Monell
claim where issues of fact remained to be tried on private medical contractor’s policy or
practice). Plaintiffs claim against Schenectady County for Monell liability may therefore
proceed.
4. Punitive Damages
Corporate Defendants argue that the Court should dismiss Plaintiff's claim for punitive
damages because “Plaintiff has failed to plead the appropriate standard for this type of relief’ and
because “the underlying claims, as set forth above, seek but fail to properly plead, at most a
medical malpractice action, not grossly indifferent or intentional conduct.” Corp. Defs.” Mem. at
16. “Punitive damages are available in a [S]ection 1983 case ‘when the defendant’s conduct is
shown to be motivated by evil motive or intent, or when it involves reckless or callous
indifference to the federally protected rights of others.’” Mathie v. Fries, 121 F.3d 808, 815 (2d
Cir. 1997) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)).° “Generally, the issue of whether to
award punitive damages is an issue for the jury to decide based on an evaluation of plaintiff's
proof of ‘sufficiently serious misconduct.’” Phelan ex rel. Phelan v. Torres, No. 4-CV-3538,
2005 WL 4655382, at *15 (E.D.N.Y. Sept. 20, 2005) (quoting Smith, 461 U.S. at 52). Thus, the
Court concludes that the issue on whether Plaintiff is entitled to punitive damages is “better
addressed with the benefit of an evidentiary record.” See Richardson v. Corr. Med. Care, Inc.,
No. 17-CV-0420, 2018 WL 1580316, at *8 (N.D.N.Y. Mar. 28, 2018).

° Plaintiff agrees: “In order to determine whether punitive damages are appropriate,
courts look to whether the Defendants ‘acted intentionally or recklessly to deny a plaintiff his
protected rights.” See Pl.’s Resp. at 28 (quoting McFadden v. Sanchez, 710 F.2d 907, 913 (2d
Cir. 1983)).
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B. Motion to Strike
1. Consent Decree
Corporate Defendants first ask the Court to strike references to the consent decree
between CMC and the New York Attorney General. Mot. Strike at 17-18. Corporate Defendants
argue for this exclusion on the grounds that the consent decree was not the result of an
adjudication and that the decree provides it is not intended for use by any third party in any other
proceeding and is not intended as an admission of liability by CMC.
Corporate Defendants rely on Lipsky for the proposition that a consent decree cannot be
used as evidence in subsequent litigation because it was not the result of an actual adjudication of
any of the issues. Mot. Strike at 17-18. However, as the Lipsky court noted, “Evidentiary
questions... should... be avoided at such preliminary stage of the proceedings.” Lipsky, 551
F.2d at 893. “[O]rdinarily neither a district court nor an appellate court should decide to strike a
portion of the complaint on the ground that the material could not possibly be relevant on the
sterile field of the pleadings alone.” Id, The Court therefore declines to do so in this case.
Furthermore, the Second Circuit has held that, while a consent decree may not be admitted to
prove the truth of the matter asserted in the decree, it may be admitted for other purposes. United
States v. Gilbert, 668 F.2d 94, 97 (2d Cir. 1981). Here, Plaintiff intends to offer the consent
decree “for purposes of knowledge, notice, motive, and modus operandi.” P1.’s Resp at 31. Such
purposes are relevant to a determination of Monell liability. In order to prove Monell liability, a
plaintiff must prove that official policy caused the alleged constitutional injury. Roe, 542 F.3d at
36. One way to establish the existence of such a policy is through a showing of “deliberate
indifference” by high-level officials. See supra Part I(3)(a). Actual knowledge or notice of

24

constitutional violations (even if at another facility), as this consent decree purports to show, are
relevant to establishing “deliberate indifference”.
Corporate Defendants further argue, “Since it is not alleged herein that [CMC] even was
the medical care services provider at SCCF at the time at issue” then the references to the consent

decree “are unequivocally inflammatory and irrelevant on their face inadmissible.” Mot. Strike at
18. As discussed above, Plaintiff has adequately alleged CMC had a policy of sanctioning
inadequate medical care that violated Plaintiff’s constitutional rights. Supra Part I(3)(b)(1).
Because Plaintiff intends to offer the consent decree as evidence that CMC had such an
unconstitutional policy, then Plaintiff’s references to the decree “bear[] on the dispute” and the
Court declines to strike them. See Citigroup, 613 F. Supp. at 489.
2. Bribery Between CMC and Sheriff D’Agostino
County Defendants argue that Plaintiff’s allegations “Sheriff D’Agostino accepted
campaign contributions as a bribe in order to overlook deaths of inmates at this facility are

scandalous, speculative, specious, and conclusory.” Mot. Strike at 19. Plaintiff has alleged that
Sheriff D’Agostino had an “enormous incentive to hire CMC, despite their long and troubled
history” because he received “thousands of dollars” in “campaign contributions.” See Compl.
¶¶ 60–61. Campaign contributions do not necessarily equate to bribes, and the Court is not
persuaded to read the Complaint as asserting CMC bribed Sheriff D’Agostino for its contract
with Schenectady County.
Furthermore, that Sheriff D’Agostino may have accepted campaign donations from CMC

bears on whether Schenectady County “renewed [CMC and CBH’s] contract to provide
healthcare at [SCCF] over the course of multiple years” despite the County’s awareness of
25
“[CMC and CBH’s] troubled history, and its capitation business model,” id. ¶ 62, as such
contributions could plausibly serve as evidence that a public official who may have had a hand in
contracting for CMC and CBH’s services at SCCF was more willing to overlook those problems.
Consequently, the Court will not strike Plaintiff’s allegations regarding Sheriff D’Agostino’s

acceptance of campaign donations from CMC.
3. Albany Times Union Article
Corporate Defendants also urge the Court to strike allegations of inadequate care included
in an Albany Times Union article. Mot. Strike at 19. The Court declines to strike these
allegations for similar reasons as it refuses to strike allegations pertaining to the consent decree
between CMC and the New York Attorney General: the article “bear[s] on the dispute” since it,
like consent decree, suggests that CMC had a policy of sanctioning inadequate medical care that
violated Plaintiff’s constitutional rights. See Citigroup, 613 F. Supp. at 489. “Evidentiary
questions” regarding the admissibility of the article “should . . . be avoided at such preliminary

stage of the proceedings.” See Lipsky, 551 F.2d at 893.
4. Allegations Pertaining to CMC
Corporate Defendants also implore the Court to strike certain other allegations pertaining
to CMC, including that it has been sued “successfully on countless occasions” and that the
Commission recommended terminating CMC’s contracts in certain counties because of improper
treatment of inmates. Mot. Strike at 20. The Court will not strike the Commission
recommendation that CMC’s contracts be terminated and the discussion of the other lawsuits
against CMC because they also speak to knowledge and notice, which is relevant to Monell
liability. The Court currently makes no determination on the eventual admissibility of such

26
evidence, but given the “highly disfavored” status of motions to strike, E*Trade Fin. Corp., 2013
WL 4016220, at *7, the Court will not grant this aspect of the Motion to Strike at this stage.
CONCLUSION
Accordingly, it is hereby:
ORDERED, that the County Defendants’ Motion to Dismiss (Dkt. No. 10) is DENIED.
Plaintiff's claim against Schenectady County may proceed; and it is further
ORDERED, that Corporate Defendants’ Motion to Dismiss (Dkt. No. 11) is GRANTED
in part. Plaintiff's claim against Umar is dismissed without prejudice; and it is further
ORDERED, Plaintiff may move to replead her claim against Umar within sixty days of
the date of this Memorandum-Decision and Order; and it is further
ORDERED, that Corporate Defendants’ Motion to Dismiss is otherwise DENIED. The
claims against CMC, CBH, and John Does 1-3 may proceed; and it is further
ORDERED, that Defendants’ requests for relief under Rule 12(f) are denied; and it is
further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED: September 16, 2019
Albany, New York

US. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10312094. Public record. Not legal advice.