Wyatt, as Administratrix of the Estate of India T. Cummings v. County of Erie

UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF NEW YORK

TAWANA R. WYATT, as )

Administrator of the Estate )

of INDIA T. CUMMINGS, )

)

Plaintiff, )

)

v. ) File No. 1:17-cv-446-wks

)

CITY OF LACKAWANNA, CITY OF )

LACKAWANNA POLICE DEPARTMENT, )

OFFICER JOHN-PAUL FIGLEWSKI, )

OFFICER BALCARCZYK, OFFICER )

JONES, CAPTAIN JOSEPH LEO, )

CAPTAIN ROBERT JANOWSKI, )

COUNTY OF ERIE, ERIE COUNTY )

SHERIFF’S OFFICE, SHERIFF )

TIMOTHY B. HOWARD, SHERIFF’S )

DEPUTY BEARING BADGE 1079, )

AMY JORDAN, R.N., BRIDGET )

LEONARD, HOLLANI GOLTZ, JILL )

LOBOCCHIARO, UNIVERSITY )

PSYCHIATRIC PRACTICE, INC., )

PETER MARTIN, M.D., EVELYN )

COGGINS, M.D., TOM CHAPIN, )

M.D., ERIE COUNTY MEDICAL )

CENTER CORPORATION, GERALD )

IGOE, M.D., TARA M. CIESLA, )

P.A., UNIVERSITY EMERGENCY )

MEDICAL SERVICES, INC., )

)

Defendants. )

OPINION AND ORDER

Plaintiff Tawana Wyatt, as administrator of the Estate of

India Cummings, brings this action alleging mistreatment related

to Cummings’ arrest, incarceration, and medical care. Pending

before the Court are motions filed by medical providers seeking

dismissal of Wyatt’s federal constitutional claims for failure to

meet the required legal standard, and her state law claims for

lack of supplemental jurisdiction. The first motion is submitted

by defendants Gerald Igoe, M.D., Tara M. Ciesla, P.A., and

University Emergency Medical Services, Inc. (“UEMS”)

(collectively “UEMS defendants”). ECF No. 110. The second

motion is submitted by defendant Erie County Medical Center

Corporation (“ECMCC”). ECF No. 123. For the reasons set forth

below, the motions to dismiss are granted.

Factual and Procedural Background

Wyatt alleges that on February 1, 2016, Cummings was

arrested and detained at the Erie County Holding Center (“ECHC”).

While in police custody she suffered a spiral fracture of her

left humerus. Cummings was subsequently transported to the

Emergency Department at Erie County Medical Center (“ECMC”) for

treatment of her broken arm. There, she was treated by Dr. Igoe

and Ms. Ciesla, both of whom are employees of UEMS. UEMS

reportedly contracts with ECMCC to provide emergency medical

services. Cummings was discharged at approximately 2:00 a.m. on

February 2, 2016 and returned to ECHC.

Over the course of the following two weeks, Cummings

allegedly became delusional and refused to eat or drink. On

February 17, 2016, she lost consciousness and showed no

observable heart rate or respiration. She was transported to

Buffalo General Hospital, where she was diagnosed with cardiac

arrest, severe dehydration, malnutrition, and organ failure. She

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died at the hospital four days later.

Wyatt’s First Amended Complaint (“FAC”) asserted three

causes of action against the UEMS defendants. Two of those

causes of action alleged medical malpractice, while the third

alleged violations of Cummings’ civil rights under 42 U.S.C. §

1983. The FAC similarly asserted three causes of action against

ECMCC: one for medical malpractice, one for federal civil rights

violations, and one for wrongful death. The FAC claimed that Dr.

Igoe, Ms. Ciesla and ECMCC failed to properly diagnose and treat

Cummings’ physical and mental health conditions prior to her

discharge on February 2, 2016.

The UEMS defendants and ECMCC each moved to dismiss the FAC,

arguing that Wyatt had failed to state a claim under 42 U.S.C. §

1983 because her allegations fell short of alleging “deliberate

indifference” as required for a federal claim. They also argued

that in the absence of a valid federal claim, the Court lacked

jurisdiction over the remaining state law claims. The Court

agreed, dismissed Wyatt’s claims without prejudice, and granted

her leave to amend her pleadings.

Wyatt subsequently filed a Second Amended Complaint (“SAC”).

The SAC asserts four causes of action against the UEMS

defendants, including medical malpractice claims and a

constitutional claim under 42 U.S.C. § 1983. Wyatt has added a

“Monell claim” against UEMS. The SAC also asserts four causes of

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action against ECMCC: one for medical malpractice, two under

Section 1983, and one for wrongful death. The factual

allegations in the SAC with respect to the UEMS defendants and

ECMCC are more specific than those set forth in the FAC. The SAC

highlights medical notes reporting that Cummings “states that a

man assaulted her, and pulled on her arm, breaking it.” The ECMC

Summary/Departure report noted that Cummings offered “multiple

stories for arm injury. Refusing to cooperat[e] w/ MD ... MD

aware and in to see patient.” The medical records also allegedly

state that the “[p]atient sustained an MVC” and was “unable to

recall the details of the accident, questionable loss of

consciousness, belted driver with airbag deployment. Patient is

uncertain when she sustained her injury.”

The SAC claims that the discrepancies in Cummings’

statements “should have alerted the ECMCC medical staff,

including [Dr. Igoe and Ms. Ciesla], to perform a further workup

including a chest x-ray and Mental Health referral, which they

failed to so perform.” The SAC further claims that defendants

failed to diagnose a medical condition revealed by Cummings’

blood work, which condition “may have contributed to her altered

mental state.” In summarizing her claim, Wyatt submits that

Cummings should not have been transferred from ECMC to ECHC on

February 2, 2016 because it was “evident to [defendants] that she

required immediate mental health diagnosis and treatment, and

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required further diagnosis concerning her physical condition.”

An additional set of factual allegations in the SAC is

specific to ECMCC. Those allegations pertain to “9Z2 beds,”

which are described in the parties’ filings as forensic mental

health beds. When such beds were unavailable at ECMC, detainees

were returned to ECHC. The SAC alleges that it was the “custom,

practice, actions, policy, and/or failures of decisionmakers at

the ECMCC to maintain only two such beds for [inmates and

detainees] and to negligently, and or with gross negligence ...

send detainees to ECHC, where it was known or should have been

known ... that such inmates or patients would not receive the

requisite and adequate care” required by the Constitution.

The SAC also includes, as an attachment, a Commission Report

issued after a special investigation into Cummings’ treatment.

The Commission Report states, in relevant part: “The Medical

Review Board finds that the discrepancy in the cause of the

injury and the multiple car accidents prior to her arrest with

the altered mental status should have alerted the ECMC medical

staff to perform a further workup including a chest x-ray and

Mental Heath referral.” The movants now argue that the Medical

Review Board’s conclusions, as well as each of the allegations

set forth in the SAC, may reflect medical malpractice but do not

rise to deliberate indifference as required for a federal civil

rights claim. Consequently, they have moved for dismissal of the

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federal causes of action for failure to state a claim, and

dismissal of the state law claims for lack of supplemental

jurisdiction.

Discussion

I. Motion to Dismiss Standards

The movants seek dismissal of Wyatt’s federal claims under

Federal Rule of Civil Procedure 12(b)(6). Rule 12(b)(6) provides

for dismissal of a complaint for “failure to state a claim upon

which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To

survive a motion to dismiss, 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)). In assessing whether a plaintiff has met this

standard, the Court must “constru[e] the complaint liberally,

accepting all factual allegations ... as true, and drawing all

reasonable inferences in the plaintiff’s favor .” Goldstein v.

Pataki, 516 F.3d 50, 56 (2d Cir. 2008).

“On a motion to dismiss, courts ‘are not bound to accept as

true a legal conclusion couched as a factual allegation.’”

Sharkey v. Quarantillo, 541 F.3d 75, 83 (2d Cir. 2008) (quoting

Papasan v. Allain, 478 U.S. 265, 286 (1986)). More than “labels

and conclusions” are required, and “a formulaic recitation of the

elements of a cause of action will not do.” Twombly, 127 S. Ct.

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at 1965. Accordingly, “bald assertions and conclusions of law

will not suffice.” Reddington v. Staten Island Univ. Hosp., 511

F.3d 126, 132 (2d Cir. 2007).

The parties have also moved for dismissal of Wyatt’s state

law claims for lack of supplemental jurisdiction. Under Federal

Rule of Civil Procedure 12(b)(1), a case is dismissed for lack of

subject matter jurisdiction when the federal court lacks the

power to adjudicate it. Makarova v. United States, 201 F.3d 110,

113 (2d Cir. 2000). A district court may exercise supplemental

jurisdiction over state law claims under 28 U.S.C. § 1367. 28

U.S.C. § 1367(a). Section 1367(c)(3) provides that a district

court “may” decline to exercise supplemental jurisdiction when it

has dismissed the related federal claims. 28 U.S.C. §

1367(c)(3). Accordingly, the statute is permissive rather than

mandatory. See generally Marcus v. AT&T Corp., 138 F.3d 46, 57

(2d Cir. 1998).

II. Constitutional Claims

Wyatt brings her constitutional claims against the UEMS

defendants and ECMCC pursuant to 42 U.S.C. § 1983. The UEMS

defendants argue that they cannot be sued under 42 U.S.C. § 1983

because they are not state actors. As a general rule, private

entities are not liable under Section 1983. See National

Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 191 (1988).

There is an exception, however, when “conduct that is formally

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‘private’ may become so entwined with governmental policies or so

impregnated with a governmental character as to become subject to

the constitutional limitations [p]laced upon state action.”

Perez v. Sugarman, 499 F.2d 761, 764 (2d Cir. 1974).

The actions of nominally private entities are

attributable to the state when those actions meet one

of three tests: [1] [t]he compulsion test[, where] the

entity acts pursuant to the coercive power of the state

or is controlled by the state[;] [2] [t]he public

function test[, where] the entity has been delegated a

public function by the [s]tate[;] or, [3] [t]he joint

action test or close nexus test[, where] the state

provides significant encouragement to the entity, the

entity is a willful participant in joint activity with

the [s]tate, or the entity’s functions are entwined

with state policies.

Hollander v. Copacabana Nightclub, 624 F.3d 30, 34 (2d Cir. 2010)

(internal quotation marks omitted) (quoting Sybalski v. Indep.

Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir.

2008)).

Here, the UEMS defendants do not qualify as state actors

under any of these three tests. First, their treatment of

Cummings was not compelled by means of a contract with the State

or otherwise. Indeed, there is no allegation that the UEMS

defendants contracted specifically to provide medical care to

inmates or detainees. Second, their work as emergency room

health care providers was not a delegated public function, and

third, they were not engaged in a joint activity with the state.

See Koulkina v. City of New York, 559 F. Supp. 2d 300, 320

(S.D.N.Y. 2008) (“Private physicians are generally not state

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actors, especially where the physician is ‘not performing a

function traditionally reserved for the State and where [the

physician] was not under contract with the State to provide

medical services.’” (quoting Vazquez v. Marciano, 169 F. Supp. 2d

248, 253–54 (S.D.N.Y. 2001)); see also Sykes v. McPhillips, 412

F. Supp. 2d 197, 204 (N.D.N.Y. 2006) (declining to deem a private

physician a state actor were he “engaged in a single encounter

with a prisoner presented for emergency treatment, which he was

obligated under law to provide”).

The SAC alleges that Dr. Igoe and Ms. Ciesla “were state

actors under color of law of a statute ordinance, regulation,

custom, or usage [of] the law of New York State with respect to

the care and treatment of [Cummings] while a patient at ECMCC

facilities and an inmate in the ECHC.” The Second Circuit has

held, however, that “a private entity does not become a state

actor for purposes of Section 1983 merely on the basis of the

private entity’s creation, funding, licensing, or regulation by

the government.” Fabrikant v. French, 691 F.3d 193, 207 (2d Cir.

2012). When treating Cummings, the providers in question made

decisions based upon their medical judgment, and not upon any

specific law or regulation. Their decisions were not mandated by

the state, and their treatment of Cummings did not amount to

state action. See, e.g., Johnson v. Fein, No. 9:18-CV-96

(DNH/DEP), 2019 WL 1877584, at *6 (N.D.N.Y. Mar. 25, 2019),

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report and recommendation adopted, 2019 WL 1877296 (N.D.N.Y. Apr.

26, 2019) (“Dr. Fein’s treatment decisions resulted from ‘pure

medical judgment,’ which dispels any notion of state

compulsion.”); see also Davis v. Cole-Hoover, No. 03-CV-0550,

2004 WL 1574649, at *10 (W.D.N.Y. June 14, 2004) (“[T]he medical

decisions of private doctors at issue here do not reflect

government influence or inducement.”).

The UEMS defendants, together with ECMCC, also argue that

the SAC fails to allege a viable constitutional claim. Because

Cummings was a pretrial detainee, the legal standard to be

applied comes from the Due Process Clause. Darnell v. Pineiro,

849 F.3d 17, 29 (2d Cir. 2017) (“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 Eighth Amendment.”).

That standard provides that “[a] pretrial detainee may establish

a § 1983 claim for allegedly unconstitutional conditions of

confinement by showing that the officers acted with deliberate

indifference to the challenged conditions.” Darnell, 849 F.3d at

29.

To state a claim of deliberate indifference, a plaintiff

must satisfy two elements: (1) an “objective” element, which

requires a “showing that the challenged conditions were

sufficiently serious to constitute objective deprivations of the

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right to due process,” and (2) a “subjective” element, which

requires a “showing that the officer acted with at least

deliberate indifference to the challenged conditions.” Id. In

the context of medical care, the plaintiff first “must show that

the conditions, either alone or in combination, pose[d] an

unreasonable risk of serious damage to [the detainee’s] health.”

Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (citing Rhodes

v. Chapman, 452 U.S. 337, 347 (1981)). The second element

requires the plaintiff to allege “that the [defendant] acted

intentionally to impose the alleged condition, or recklessly

failed to act with reasonable care to mitigate the condition

posed to the pretrial detainee even though the [defendant] knew,

or should have known, that the condition posed an excessive risk

to health or safety.” Darnell, 849 F.3d at 35.

In order to meet the objective requirement, the alleged

deprivation of adequate medical care must be “sufficiently

serious.” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006)

(citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). In

assessing seriousness, the Court must examine how the care was

allegedly inadequate and that how inadequacy caused or would

likely cause the plaintiff harm. Id. (citing Helling v.

McKinney, 509 U.S. 25, 32–33 (1993)).

Here, Wyatt claims that ECMC Emergency Department providers,

including Dr. Igoe and Ms. Ciesla, “were aware of the objectively

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serious medical conditions of decedent and ... with deliberate

indifference did fail to act, to ignore the life-threatening or

fast-degenerating condition of decedent ... even though

defendants knew or should have known the conditions posed an

excessive risk to the health or safety of decedent.” The factual

allegations underlying these claims consist primarily of the

Commission Report and the finding by the Medical Board. The

Medical Board concluded that the providers should have taken

additional action, including ordering a chest x-ray and a mental

health referral, and should have identified a medical condition

revealed by Cummings’ blood work. The movants now contend that,

even accepting the Medical Board’s conclusions, the facts alleged

do not amount to a plausible claim of deliberate indifference to

a serious medical need.

The allegations in the SAC state that Cummings arrived at

ECMC with a broken arm. That injury was treated, and she was

soon returned to ECHC. Over the next two weeks Cummings

displayed behavior and medical issues that resulted in her

ultimate admission to Buffalo General Hospital. There is no

doubt that Cummings’ condition became objectively serious during

her weeks of detention.

The question presented here is whether, when faced with

inconsistent statements about the origins of her arm injury, it

should have been apparent that Cummings had other serious medical

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needs. If the Court assumes for the sake of argument that

Cummings’ needs were objectively serious when she arrived at

ECMC, it must turn to the subjective element of the test. The

subjective element asks whether the official acted with “a

sufficiently culpable state of mind.” Farmer, 511 U.S. at 834

(citing Wilson v. Seiter, 501 U.S. 294, 300 (1991)). In order to

satisfy this element, Wyatt must demonstrate more than a

negligent failure to provide adequate medical care and, as stated

above, must instead show deliberate indifference. “Deliberate

indifference is a mental state equivalent to subjective

recklessness, as the term is used in criminal law. This mental

state requires that the charged official act or fail to act while

actually aware of a substantial risk that serious inmate harm

will result.” Salahuddin, 467 F.3d at 280 (citations omitted).

As the movants properly contend, the SAC fails to set forth

a plausible allegation that Cummings’ health care providers were

aware of a risk of serious medical harm and nonetheless failed to

act. The Medical Board reportedly found that additional

diagnostic steps should have been taken. Relying on that

conclusion, Wyatt claims that the providers should have performed

a chest x-ray and ordered a mental health evaluation. There is

also an allegation that blood work was not properly assessed. In

Estelle v. Gamble, the Supreme Court noted that “the question

whether an X-ray or additional diagnostic techniques or forms of

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treatment is indicated is a classic example of a matter for

medical judgment. A medical decision not to order an X-ray, or

like measures, does not represent cruel and unusual punishment.”

429 U.S. 97, 107 (1976). Likewise, a “complaint that a physician

has been negligent in diagnosing or treating a medical condition

does not state a valid claim of medical mistreatment under the

[Constitution].” Id. at 106.

Cummings was taken to ECMC for treatment of arm pain and was

treated for a broken arm. There is no allegation that she was

either ignored or denied medical care for that injury. A claim

that her varied explanations, and her confused mental state

generally, should have alerted providers to other medical or

mental health issues constitutes an allegation of negligence.

There are no allegations from which the Court can reasonably

infer deliberate indifference on the part of Dr. Igoe, Ms.

Ciesla, or other Emergency Department personnel. Accordingly,

the SAC fails to state a plausible federal claim against the UEMS

defendants and ECMC medical staff.

In addition to claims regarding treatment by individual

providers, Wyatt brings allegations of unconstitutional customs

or policies by ECMCC and UEMS. The SAC alleges generally that

the movants failed to properly train or supervise their

subordinates, and that such failure amounted to deliberate

indifference. This general allegation does not reference any

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specific factual claims, and is in itself too conclusory to

support a cause of action.1

ECMCC is more specifically accused of having an unlawful

custom or policy with respect to inpatient mental health beds.

The SAC alleges that “[a] 9Z2 bed is an inpatient mental health

bed at the ECMCC facility that can provide a higher level of

psychiatric inpatient care.” ECMC reportedly had two such beds.

Although ECMCC had an agreement with Erie County to offer those

beds for inmate or detainee use, when the beds are not made

available the detainee is allegedly returned to ECHC, “resulting

in the denial of adequate medical treatment.”

ECMCC does not dispute that it may be subject to a claim of

municipal liability under Monell v. City of New York Department

of Social Services, 436 U.S. 658, 691-95 (1978). To hold ECMCC

liable under Monell and Section 1983, Wyatt must show an official

policy or custom that caused the plaintiff to be subjected to a

denial of a constitutional right. See Wary v. City of New York,

490 F.3d 189, 195 (2d Cir. 2007). The Second Circuit has held

that “a single incident alleged in a complaint, especially if it

involved only actors below the policy-making level, does not

suffice to show a municipal policy.” Ricciuti v. N.Y.C. Transit

1 To the extent the SAC is claiming liability purely on the

basis of an employer-employee relationship, it is well

established that respondeat superior is not a basis for liability

under Section 1983. See Hernandez v. Keane, 341 F.3d 137, 144

(2d Cir. 2003).

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Authority, 941 F.2d 119, 123 (2d Cir. 1991).

Here, the claims regarding 9Z2 beds are insufficient in

several respects. First, for reasons discussed above, there is

no plausible claim that the failure to provide Cummings with such

a bed was a constitutional violation. Moreover, there is no

allegation that ECMCC had a custom or policy of returning

detainees or inmates to ECHC when they are psychiatrically

unstable, regardless of 9Z2 bed availability. Nor is there an

allegation that all 9Z2 beds were full when Cummings was at ECMC

on the night of February 1, 2016. Finally, any alleged harm

focuses on a single incident, yet Second Circuit precedent

requires more. See Ricciuti, 941 F.2d at 123; Newton v. City of

New York, 566 F. Supp. 2d 256 271 (S.D.N.Y. 2008) (“[A] custom or

policy cannot be shown by pointing to a single instance of

unconstitutional conduct by a mere employee of the State.”).

In opposition to ECMCC’s motion to dismiss, Wyatt argues

that the psychiatric bed allegation is not limited to February 1,

2016, but instead extends to a later period that same month when

Wyatt was being held at ECHC and was allegedly waiting for access

to a 9Z2 bed. The SAC claims that Cummings was “identified for a

9Z2 bed” by an ECHC interdisciplinary team but was “still

awaiting bed availability,” and that no effort was made to take

her back to ECMC. That allegation does not support a claim that

ECMCC had a custom or policy of denying proper psychiatric care

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to detainees or inmates who were being attended to at ECMC, or

that ECMCC was aware that Cummings or others held at ECHC were

denied such care. The SAC therefore fails to state a plausible

Monell claim against ECMCC, and the federal claims against the

movants are dismissed.

III. State Law Claims

With no plausible federal constitutional claims pending

against them, the movants seek dismissal of Wyatt’s state law

claims. As noted above, 28 U.S.C. § 1367(c)(3) makes the

exercise of supplemental jurisdiction discretionary when the

related federal claims have been dismissed. The Supreme Court

has held that “when the federal-law claims have dropped out of

the lawsuit in its early stages and only state-law claims remain,

the federal court should decline the exercise of jurisdiction by

dismissing the case without prejudice.” Carnegie-Mellon Univ. v.

Cohill, 484 U.S. 343, 350 (1988). In keeping with this guidance,

dismissal of the state law claims brought against the movants is

warranted.

The Court also notes that the remaining federal claims,

brought against other defendants, revolve mostly around Cummings’

treatment during her arrest and her approximately two weeks of

detention prior to her death. Because the UEMS defendants and

ECMCC played no role in either the arrest or the multi-day

detention, the remaining federal claims bear only a thin

17

relationship to the state law claims being brought against the

movants. See Promisel v. First Am. Artificial Flowers Inc., 943

F.2d 251, 254 (2d Cir. 1991) (holding that disputes are part of

the “same case or controversy” within § 1367 when they “derive

from a common nucleus of operative fact”). Their motions to

dismiss the state law claims are therefore granted and those

claims are remanded to the state court.2

Conclusion

For the reasons set forth above, the motions to dismiss

filed by Gerald Igoe, M.D., Tara M. Ciesla, P.A., and University

Emergency Medical Services, Inc. (ECF No. 110) and Erie County

Medical Center Corporation (ECF No. 123) are granted. The state

law claims brought against those defendants are remanded to state

court.

DATED at Burlington, Vermont, this 5th day of August, 2020.

/s/ William K. Sessions III

William K. Sessions III

U.S. District Court Judge

2 This case was originally filed in the New York State

Supreme Court, Erie County.

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