Dames v. Pigott

UNITED STATES DISTRICT COURT USDC SDNY

SOUTHERN DISTRICT OF NEW YORK DOCUMENT

□□□ □□□ eee eee +--+ X ELECTRONICALLY FILED .

. DOC#:

CECIL M. DAMES : DATE FILED: __8/26/2019

Plaintiff, :

: 18-CV-8352 (VSB)

- against - :

: OPINION & ORDER

SYDNEY PIGOTT, et al., :

Defendants. :

Appearances:

Cecil M. Dames

New York, New York

Pro se Plaintiff

Ana Maria Vizzo

Gabrielle Apfel

Heidell, Pittoni, Murphy & Bach, LLP

New York, New York

Counsel for Defendants

VERNON S. BRODERICK, United States District Judge:

Pro se Plaintiff Cecil Dames brings this action against Defendants Sydney Pigott, Steven

Bastian, New York City Health and Hospitals Corporation (‘NYC H&H”), and the City of New

York (the “City”), alleging violations of 42 U.S.C. § 1983 for deliberate indifference to

Plaintiff s medical needs in connection with a dental procedure Plaintiff underwent while he was

incarcerated. Before me is the motion of Defendants Bastian, NYC H&H, and the City to

dismiss Plaintiff's complaint. Because the complaint fails to state a claim for municipal liability

or to assert facts suggesting Defendant Bastian’s personal involvement in the alleged

constitutional violation, the motion to dismiss is GRANTED and Plaintiffs claims against

Bastian, NYC H&H, and the City are dismissed without prejudice. Because Defendant Pigott

has not yet been served with a copy of the summons and complaint, I decline to analyze whether

the allegations against Defendant Pigott fail to state a claim upon which relief may be granted,

and instead direct in a separate Order that the United States Marshals Service again attempt

service on Defendant Pigott.

Background1

On June 18, 2018, Plaintiff—who at the time was detained on a “parole hold” at the Eric

M. Taylor Center (“EMTC”) on Rikers Island—went to see Defendant Sydney Pigott, DDS, to

have a tooth extracted. (Compl. 2, 4.)2 In attempting to remove Plaintiff’s tooth, Dr. Pigott

drilled through the tooth, then through Plaintiff’s gum, and into his nasal cavity. (Id. at 4.)

Blood began to fill Plaintiff’s nose and mouth and Plaintiff twice stopped Dr. Pigott and

informed him that he was experiencing pain; Dr. Pigott responded that the procedure was nearly

complete and continued to drill into Plaintiff’s mouth. (Id.) Finally, after Plaintiff stopped Dr.

Pigott a third time to complain of pain, Dr. Pigott informed Plaintiff that he could not continue

the procedure because there was a risk that it might break Plaintiff’s jaw. (Id.) Following this

unsuccessful dental procedure, Dr. Pigott filed a false medical report that allegedly states that

there were “no complications” with the extraction and that Plaintiff had indicated that he felt “no

pain.” (Id.) To the contrary, Plaintiff suffered from pain throughout the procedure, and asserts

that he told Dr. Pigott that he was in pain at least three times. (Id.)

After the aborted dental procedure, Plaintiff suffered from ongoing pain as a result of the

1 The following factual summary is drawn from the allegations contained in Plaintiff’s complaint (“Complaint”).

(Doc. 2.) I assume the allegations set forth in the Complaint to be true for purposes of this motion. See Kassner v.

2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007). My references to these allegations should not be

construed as a finding as to their veracity, and I make no such findings.

2 “Compl.” refers to Plaintiff’s Complaint, filed September 12, 2018. (Doc. 2.)

failed extraction and, for the next six weeks, each time he attempted to drink fluids, the liquid

would pour out of his nose. (Id. at 5.) On August 3, 2018, Plaintiff underwent “major”

surgery—a buccal fat pad graft—to repair the damage and was advised that additional surgeries

may be necessary in the future. (Id. at 4–5.)

Procedural History

Plaintiff filed his Complaint on September 12, 2018, naming Dr. Pigott, EMTC Warden

Steven Bastian, NYC H&H, and the New York City Department of Corrections (“DOC”) as

Defendants, and setting forth allegations of deliberate indifference to Plaintiff’s medical needs.

(Compl. 1.) By Order dated October 24, 2018, (Doc. 6, at 2), Plaintiff’s claims against the DOC

were dismissed because an agency of the City of New York is not an entity that may be sued, and

the City of New York was added as a Defendant. See N.Y. City Charter ch. 17, § 396 (“[A]ll

actions and proceedings for the recovery of penalties for the violation of any law shall be brought

in the name of the city of New York and not in that of any agency, except where otherwise

provided by law.”). The Order further noted that because Plaintiff had been granted permission

to proceed in forma pauperis (“IFP”), (see Doc. 4), he was entitled to assistance from the Court

in effecting service of process, (see Doc. 6, at 2; see also 28 U.S.C. § 1915(d) (“The officers of

the court shall issue and serve all process . . . in [IFP] cases.”)). On November 20, 2018, Bastian

and the City both waived service of the Summons and Complaint. (Docs. 13, 19.) The United

States Marshals Service effected service on NYC H&H on December 14, 2018. (Doc. 19.)

Defendant Pigott, however, was not served with a copy of the Summons and Complaint, and

DOC declined to waive service of the Summons and Complaint on behalf of Defendant Pigott

because he is not a DOC employee. (Doc. 14.)

On January 17, 2019, Bastian, NYC H&H, and the City (the “Moving Defendants”) filed

a motion to dismiss the Complaint for failure to state a claim, pursuant to Federal Rule of Civil

Procedure 12(b)(6). (Docs. 20–22.) Plaintiff subsequently requested an extension of time to file

his opposition to the motion to dismiss to enable him to retain counsel. (Doc. 24.) On February

22, 2019, I granted Plaintiff’s request and instructed him to file his opposition on or before April

4, 2019. (Doc. 25.) After Plaintiff failed to adhere to the April 4 deadline, I issued an Order on

May 17, 2019, granting Plaintiff a final opportunity to oppose the pending motion to dismiss and

advising Plaintiff that if he did not show good cause for his failure to timely submit an

opposition by June 3, 2019, I would treat the motion as unopposed. (Doc. 26.) After Plaintiff

again failed to respond to my Order, the City requested that I deem the motion to dismiss

unopposed. (Doc. 27.) Finally, on June 21, 2019, Plaintiff submitted a brief letter, stating that

he “oppos[es] the defendant[s’] motion to dismiss” and “believe[s his] medical records clearly

show cause to proceed in this matter.” (Doc. 29.) Given Plaintiff’s pro se status, I will consider

his June 21 letter as his opposition to the motion to dismiss, even though it was untimely filed.

The Moving Defendants did not file a reply in further support of their motion.

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, accepted as true, 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 will have “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. This standard demands “more than a sheer possibility

that a defendant has acted unlawfully.” Id. “Plausibility . . . depends on a host of considerations:

the full factual picture presented by the complaint, the particular cause of action and its elements,

and the existence of alternative explanations so obvious that they render plaintiff’s inferences

unreasonable.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d Cir. 2011).

In considering a motion to dismiss, a court must accept as true all well-pleaded facts

alleged in the complaint and must draw all reasonable inferences in the plaintiff’s favor. Kassner

v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007). A complaint need not make

“detailed factual allegations,” but it must contain more than mere “labels and conclusions” or “a

formulaic recitation of the elements of a cause of action.” Iqbal, 556 U.S. at 678 (internal

quotation marks omitted). Finally, although all allegations contained in the complaint are

assumed to be true, this tenet is “inapplicable to legal conclusions.” Id.

B. Pro Se Litigant

Even after Twombly and Iqbal, a “document filed pro se is to be liberally construed and

. . . must be held to less stringent standards than formal pleadings drafted by lawyers.” Boykin v.

KeyCorp., 521 F.3d 202, 214 (2d Cir. 2008) (internal quotation marks omitted). Further,

pleadings of a pro se party should be read “to raise the strongest arguments that they suggest.”

Kevilly v. New York, 410 F. App’x 371, 374 (2d Cir. 2010) (summary order) (internal quotation

marks omitted). Nevertheless, dismissal of a pro se complaint is appropriate where a plaintiff

fails to state a plausible claim supported by more than conclusory factual allegations. See

Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). In other words, the “duty to liberally

construe a plaintiff’s complaint is not the equivalent of a duty to re-write it.” Geldzahler v. N.Y.

Med. Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (internal quotation marks omitted).

Discussion

A. Defendant Pigott

As the Moving Defendants point out in their motion to dismiss, Defendant Pigott has not

been served with a copy of the Summons and Complaint in this action. (See Defs.’ Br. 1 n.1.)3

Nor has Dr. Pigott waived service. (See Doc. 14 (Waiver of Service of Summons returned

unexecuted as to Dr. Pigott, who is “[n]ot a DOC employee”).)4 Rather, Defendants’ counsel

notes, “[w]e anticipate that if and when service is completed, we will be asked to represent [Dr.

Pigott].” (Defs.’ Br. 1 n.1.) Because Dr. Pigott has neither been served nor waived service, has

not appeared personally or through counsel, and, therefore, has not joined in the motion of the

Moving Defendants to dismiss the Complaint, I find it premature to address the validity of

Plaintiff’s claims against Dr. Pigott. After Dr. Pigott has been served by the U.S. Marshals

Service, he may—if he so chooses—file a separate motion to dismiss Plaintiff’s claims against

him.

B. Moving Defendants

Although I decline to assess whether Plaintiff’s claims against Dr. Pigott are sufficient to

withstand a motion to dismiss, I conclude that the Complaint fails to state a claim against the

Moving Defendants regardless of whether Plaintiff’s § 1983 claims may proceed against Dr.

Pigott.

3 “Defs.’ Br.” refers to the Memorandum of Law in Support of Defendants’ Motion to Dismiss the Complaint

Pursuant to F.R.C.P. Rule 12(b)(6), filed January 17, 2019. (Doc. 22.)

4 Although the notices of appearance filed by Gabrielle Apfel and Ana Maria Vizzo indicate that they have

“appear[ed] as trial counsel for all defendants in this matter,” (Docs. 9, 12), “[s]imply filing a notice of appearance is

insufficient to constitute waiver” of service, “even where the defendant has actual knowledge of the suit,” Gore v.

RBA Group, Inc., No. 03 Civ. 9442(RJS), 2009 WL 884565, at *5 (S.D.N.Y. Mar. 27, 2009) (internal quotation

marks omitted). In any event, it is likely that the reference in the notices of appearance to “all defendants” is an

error since Defendants’ counsel have indicated that they do not represent Defendant Pigott at this time. (See Defs.’

Br. 1 n.1 (“We anticipate that if and when service is completed, we will be asked to represent [Dr. Pigott].”).)

1. Applicable Law

“Section 1983 provides a civil claim for damages against any person who, acting under

color of state law, deprives another of a right, privilege or immunity secured by the Constitution

or the laws of the United States.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). Section 1983

does not establish substantive rights, but it provides a means of redress for the deprivation of

rights established elsewhere. Id. “It is well settled in this Circuit that personal involvement of

defendants in alleged constitutional deprivations is a prerequisite to an award of damages under

[Section] 1983.” Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006) (internal quotation marks

omitted); see also Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001) (explaining

that the basis of liability under § 1983 “is personal participation by one who has knowledge of

the facts that rendered the conduct illegal”). In this Circuit, the personal involvement of an

individual acting as a supervisor of the primary wrongdoer may be established by demonstrating

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 the 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 inmates by failing to act on information indicating that

unconstitutional acts were occurring.

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).

A municipality or municipal corporation is liable under § 1983 “if the governmental body

itself subjects a person to a deprivation of rights or causes a person to be subjected to such

deprivation.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (internal quotation marks omitted).

Because the language of § 1983 makes clear that “Congress did not intend municipalities to be

held liable unless action pursuant to official municipal policy of some nature caused a

constitutional tort,” a municipality “cannot be held liable solely because it employs a tortfeasor.”

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978) (emphasis in original). In order to

succeed on a claim against a municipality under § 1983, a plaintiff must show: “(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.”

Cowan v. City of Mount Vernon, 95 F. Supp. 3d 624, 636 (S.D.N.Y. 2015) (quoting Roe v. City

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

When determining whether municipal liability applies, a court must “conduct a separate

inquiry into whether there exists a ‘policy’ or ‘custom.’” Cowan, 95 F. Supp. 3d at 637 (quoting

Davis v. City of New York, 228 F. Supp. 2d 327, 336 (S.D.N.Y. 2002), aff’d, 75 F. App’x 827 (2d

Cir. 2003)). In order to prevail, a plaintiff must allege either “(1) a formal policy officially

endorsed by the municipality; (2) actions taken by government officials 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.” Brandon v. City of New York, 705 F. Supp. 2d 261, 276–77 (S.D.N.Y.

2010) (citations omitted). A plaintiff cannot show a “policy” or “custom” sufficient to impose

municipal liability merely by providing “[p]roof of a single incident of unconstitutional

activity . . . unless proof of the incident includes proof that it was caused by an existing,

unconstitutional municipal policy.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 841 (1985);

see also Cowan, 95 F. Supp. 3d at 637 (“Generally, a custom or policy cannot be shown by

pointing to a single instance of unconstitutional conduct by a mere employee of the

municipality.” (internal quotation marks omitted)).

Further, a “[p]laintiff must . . . prove a causal link between the policy, custom or practice

and the alleged injury in order to find liability against a municipality.” Brandon, 705 F. Supp. 2d

at 277; see also City of Canton v. Harris, 489 U.S. 378, 385 (1989) (“[O]ur first inquiry in any

case alleging municipal liability under § 1983 is the question whether there is a direct causal link

between a municipal policy or custom and the alleged constitutional deprivation.”).

2. Application

The Complaint does not contain any specific allegations against the City, NYC H&H, or

Bastian. Therefore, on this basis alone, I find that dismissal of each of the Moving Defendants

from this action is warranted.

a. Defendants City of New York and NYC H&H

Plaintiff has failed to state a claim for municipal liability against either the City or NYC

H&H. NYC H&H is “a public benefit corporation created to provide health and medical services

to New York City residents pursuant to [the] New York City Health and Hospitals Corporation

Act.” Simpkins v. Bellevue Hosp., 832 F. Supp. 69, 73 (S.D.N.Y. 1993) (citing N.Y. Unconsol.

Laws § 7382, et seq.). NYC H&H therefore qualifies as a “municipal corporation,” whose

liability under § 1983 is governed by the principles set forth in Monell. Id. (citing Rookard v.

Health & Hosps. Corp., 710 F.2d 41, 44–45 (2d Cir. 1983)).

Plaintiff’s Complaint contains no allegations that either the City or NYC H&H has a

“policy, custom or practice” of violating the constitutional rights of individuals in Plaintiff’s

position—much less that such a policy or custom was the proximate cause of Plaintiff’s injuries.

See Gonzalez v. City of New York, No. 14 Civ. 7721 (LGS), 2015 WL 6873451, at *9 (S.D.N.Y.

Nov. 9, 2015) (citing Monell, 436 U.S. at 694). The body of the Complaint, in fact, is entirely

devoid of any references to either the City or NYC H&H. Plaintiff alleges solely that his rights

were violated by Dr. Pigott, who injured him in the course of providing inadequate dental

treatment, and then falsified the corresponding treatment records in an effort to conceal his

misconduct. (Compl. 4.) These allegations—at most—relate to a “single instance of

unconstitutional conduct by a mere employee of the municipality,” and are therefore insufficient

to demonstrate a municipal policy or custom. Cowan, 95 F. Supp. 3d at 637.

There are no allegations in the Complaint suggesting (1) that Dr. Pigott provided

inadequate dental care pursuant to a formal policy; (2) that the officials responsible for

establishing municipal policies endorsed or tolerated such conduct; (3) that the constitutional

violations in question were part of a broader, widespread practice; or (4) that Dr. Pigott’s

conduct was the result of the City’s or NYC H&H’s failure to adequately train or supervise their

employees. See Brandon, 705 F. Supp. 2d at 276–77. Moreover, Plaintiff acknowledges in his

Complaint that he ultimately underwent oral surgery “to repair the damage that (Sydney Pigott)

caused.” (Compl. 5.) The fact that Plaintiff—while still incarcerated—received additional

medical treatment to reverse the damage allegedly caused by Dr. Pigott further undercuts the

notion that there was any “formal policy officially endorsed” by the City or NYC H&H

condoning Dr. Pigott’s alleged misconduct. See Brandon, 705 F. Supp. 2d at 276–77.

Accordingly, I find that the Complaint fails to allege any facts from which a juror could

plausibly infer an unconstitutional custom, policy, or practice to warrant municipal liability

under § 1983.

b. Defendant Bastian

The Complaint is similarly silent with respect to Defendant Bastian’s involvement in the

alleged misconduct. See Farrell, 449 F.3d at 484 (requiring “personal involvement” of each

defendant in the alleged constitutional deprivation). Plaintiff perhaps named Bastian as a

Defendant given Bastian’s supervisory role as warden of the facility where Plaintiff was

incarcerated; however, “[t]he bare fact that [a defendant] occupies a high position in the New

York prison hierarchy is insufficient” to sustain a § 1983 claim. Colon, 58 F.3d at 874; see also

Alvarado v. Westchester Cty., 22 F. Supp. 3d 208, 216 (S.D.N.Y. 2014) (“Section 1983 liability

cannot be predicated on a theory of respondeat superior.”). Here, the Complaint is devoid of any

allegations suggesting that Bastian directed, endorsed, or was even made aware of the treatment

Dr. Pigott provided to Plaintiff, and the Complaint also fails to allege that Bastian was grossly

negligent in supervising Dr. Pigott. See Colon, 58 F.3d at 873 (setting forth examples of

allegations that would support liability of a supervisory defendant under § 1983). In fact,

Bastian is not mentioned a single time in the body of the Complaint. I therefore find that the

allegations set forth in the Complaint wholly fail to support a § 1983 claim against Bastian. See

Hotter v. Schriro, No. 16 Civ. 6586 (LAP), 2018 WL 2081863, at *6 (S.D.N.Y. Mar. 29, 2018)

(dismissing claims where “Plaintiff ha[d] not pleaded facts sufficient to show that [the defendant

hospital director] was personally aware of and involved in the treatment Plaintiff received”).

C. Dismissal Without Prejudice

Claims brought pro se typically are dismissed without prejudice. See Cuoco v.

Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (unless there is no indication that the pro se plaintiff

will be able to assert a valid claim giving rise to subject matter jurisdiction, leave to amend

should be given). “A pro se complaint should not be dismissed without the Court granting leave

to amend at least once when a liberal reading of the complaint gives any indication that a valid

claim might be stated.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation

marks omitted). I see no reason to deviate from the normal practice in this case. Accordingly,

Plaintiff's § 1983 claims against the Moving Defendants are dismissed without prejudice.

V. Conclusion

For the foregoing reasons, the Moving Defendants’ motion to dismiss is GRANTED and

Plaintiffs claims against the City, NYC H&H, and Bastian are hereby DISMISSED WITHOUT

PREJUDICE.

An Order directing the U.S. Marshals Service to attempt service on Defendant Pigott will

issue separately.

The Clerk of Court is respectfully directed to mail a copy of this Opinion & Order to the

pro se Plaintiff and to close the motion pending at Document 20.

SO ORDERED.

Dated: August 26, 2019 ,

New York, New York if 1)

Vernon 8S. Broderick

United States District Judge

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