# Pusateri v. Chautauqua County

> District Court, W.D. New York · July 27, 2021

URL: https://www.frixlaw.com/law-library/cases/10363997

## Case

- **Court:** District Court, W.D. New York
- **Decided:** July 27, 2021
- **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/10363997

## How later opinions describe it (automated extraction)

- holding a plaintiff must establish “something more than mere negligence” to establish deliberate indifference under the Fourteenth Amendment
- affirming a dismissal of a plaintiff's Monel! claim for deliberate indifference to serious medical needs because “the amended complaint provides only one additional example of a similar incident”

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF NEW YORK.
PATTIE ANN PUSATERL, as )
Administrator for the Estate of )
GREGORY LEE GALLAWAY, )
Plaintiff, )
) Case No. 1:20-cv-00427
V. )
)
CITY OF DUNKIRK, )
CITY OF DUNKIRK POLICE )
DEPARTMENT, )
CITY OF DUNKIRK POLICE OFFICER )
DENISE ZENTZ, )
CHAUTAUQUA COUNTY )
CHAUTAUQUA COUNTY SHERIFF )
JAMES B. QUATTRONE, )
JOHN AND/OR JANE DOE(S) said being )
CHAUTAUQUA COUNTY SHERIFF )
DEPUTIES, )
CHAUTAUQUA COUNTY SHERIFF )
SERGEANT FULLER, )
JOHN AND/OR JANE DOES(S) said being —}
CHAUTAUQUA COUNTY JAIL )
PERSONNEL, )
ANGELA M. DAMORE, FNP-C, )
AMY MEYER RN, )
CHAUTAUQUA COUNTY SHERIFF’S )
DEPUTY TANNER DELAHOY bearing )
Badge Number 5100, )
CHAUTAUQUA COUNTY SHERIFE’S )
DEPUTY ROBERTS bearing Badge )
Number 5108, )
CHAUTAUQUA COUNTY SHERIFE’S )
DEPUTY ROBERT BURRELL bearing )
Badge Number 5060, and )
CHAUTAUQUA COUNTY SHERIFF’S )
SERGEANT WESTFAHL bearing )
Badge Number 671, )
Defendants. )

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS AND GRANTING LEAVE TO AMEND
(Doc. 40)
Plaintiff Pattie Ann Pusateri brings claims as the Administrator of the Estate of her
son, Gregory Lee Gallaway (the “Decedent”), arising from the circumstances surrounding
his death while he was a pretrial detainee at Chautauqua County Jail against Defendants
City of Dunkirk (“Defendant City”), City of Dunkirk Police Department (“Defendant
DPD”), City of Dunkirk Police Officer Denise Zentz (“Defendant Zentz”), Chautauqua
County (“Defendant County”), Chautauqua County Sheriff James B. Quattrone
(“Defendant Quattrone”), John and/or Jane Doe(s) said being Chautauqua County
Sheriff's Deputies (“Defendant John Doe Deputies”), Chautauqua County Sheriffs
Deputy Sergeant Fuller (“Defendant Fuller”), John and/or Jane Does(s) said being
Chautauqua County Jail Personnel (“Defendant John Doe Jail Personnel”), Angela M.
Damore, FNP-C (“Defendant Damore”), Amy Meyer, RN (“Defendant Meyer”),
Chautauqua County Sheriff's Deputy Tanner Delahoy bearing Badge Number 5100
(“Defendant Delahoy”), Chautauqua County Sheriffs Deputy Roberts bearing Badge
Number 5108 (“Defendant Roberts”), Chautauqua County Sheriff's Deputy Robert
Burrell bearing Badge Number 5060 (“Defendant Burrell”), and Chautauqua County
Sheriff's Sergeant Westfah! bearing Badge Number 671 (“Defendant Westfahl”).
In her Amended Complaint, Plaintiff alleges the following claims: (1) negligence
against Defendants City, DPD, and Zentz (Count J); (2) violation of the Decedent’s
Fourteenth Amendment right to adequate medical care and treatment in violation of 42
U.S.C. § 1983 against Defendants City and DPD (Count ID); (3) violation of the
Decedent’s Fourteenth Amendment right to adequate medical care and treatment in
violation of 42 U.S.C. § 1983 against Defendant Zentz (Count IID); (4) medical
malpractice against Defendants County, Damore, and Meyer (Count IV); (5) negligence
against Defendant County (Count V); (6) violation of the Decedent’s Fourteenth
Amendment right to adequate medical care and treatment in violation of 42 U.S.C,
§ 1983 against Defendant County (Count V1); (7) violation of the Decedent’s Fourteenth

Amendment right to adequate medical care and treatment in violation of 42 U.S.C.
§ 1983 against Defendants Damore and Meyer (Count VID; (8) negligence under N.Y.
Correct. L. § 500-C against Defendant Quattrone (Count VIID); (9) violation of the
Decedent’s Fourteenth Amendment right to adequate medical care and treatment in
violation of 42 U.S.C. § 1983 against Defendant Quattrone (Count DX); (10) violation of
the Decedent’s Fourteenth Amendment right to adequate medical care and treatment in
violation of 42 U.S.C. § 1983 against Defendants John Doe Deputies, John Doe Jail
Personnel, and Fuller (Count X); (11) negligence against Defendants Roberts, Delahoy,
Burrell, Westfahl, Fuller, John Doe Deputies, and John Doe Jai! Personnel (Count XI);
(12) violation of the Decedent’s Fourteenth Amendment right to adequate medical care
and treatment in violation of 42 U.S.C. § 1983 against Defendants Roberts, Delahoy,
Burrell, Westfahl, and Fuller (Count XID; and (13) wrongful death against all Defendants
(Count XID),
On November 2, 2020, Defendants County, Damore, Delahoy, John Doe Deputies,
John Doe Jail Personnel, Fuller, Meyer, Quattrone, Roberts, Burrell, and Westfahl
(“Defendants”) moved to dismiss Counts VI, VII, IX, X, XI,! and XII with prejudice and
moved to dismiss Counts [V, V, VIII, and XIII without prejudice. Plaintiff filed a
response in opposition on November 30, 2020. On December 14, 2020, Defendants filed
a reply.
Plaintiff is represented by James M. VanDette, Esq., and Vincent Thomas Parlato,
Esq. Defendants are represented by Michael P. McClaren, Esq., Peter L. Veech, Esq., and
Shannon Brae O’Neill, Esq.
1 The Amended Complaint’s Allegations.
Plaintiff is a resident of Tonawanda, New York. On or about July 9, 2019, Plaintiff
was granted Letters of Administration by the Surrogate’s Court for the County of
Chautauqua, State of New York, authorizing her to pursue the causes of action in her
Amended Complaint in her capacity as the Administrator of the Decedent’s Estate.

| Defendants request dismissal of Count XI with and without prejudice. (Doc. 40-4 at 41,)

Defendant County is a municipal corporation located in New York. Defendant
Quattrone was, at all relevant times, the Sheriff of Chautauqua County and was
responsible for the day-to-day operations of the Chautauqua County Jail, including the
safekeeping of its inmates. Defendants John Doe Deputies, John Doe J ail Personnel,
Fuller, Delahoy, Roberts, Burrell, and Westfah! were employees or subordinates of
Defendant Quattrone and/or Defendant County and were involved in the supervision of
the Decedent while he was in custody of Defendant Quattrone from April 10, 2019 until
April 11, 2019. Plaintiff's claims against each of these individual defendants are asserted
in their individual and official capacities.
Defendant Damore was, at all relevant times, a Family Nurse Practitioner
stationed at the Chautauqua County Jail, and Defendant Meyer was, at all relevant times,
a registered nurse employed at the Chautauqua County Jail. Defendants Damore and
Meyer were employees or subordinates of Defendant County and were responsible for
rendering medical care and treatment to inmates at the Chautauqua County Jail on April
10, 2019. Plaintiff brings claims against Defendants Damore and Meyer in their
individual and official capacities.
On April 10, 2019, the Decedent appeared at the Dunkirk City Court in response
to a warrant that had been issued as a result of his previous failure to appear in court ina
pending criminal case. Prior to the court proceeding, the City of Dunkirk City Court
Treatment Court Coordinator, Lee Ann Lazarony,” administered a drug screen of the
Decedent which was positive for THC, cocaine, benzodiazepine, and Suboxone. The drug
screen was done in connection with a February 1, 2018 Drug Treatment Court contract
between the Decedent and Dunkirk City Court, the terms of which required the Decedent
to abstain from using illegal drugs. Ms. Lazarony advised Dunkirk City Court, in open
court and on the record, of the Decedent’s positive drug screen results and advised the

2 Ms, Lazarony’s surname is spelled Lazaroney in the Amended Complaint, it is the court’s
understanding that “Lazarony” is the correct spelling. See
http://ww2.nycourts.gov/courts/8jd/Chautauqua/dunkirk.shtml (listing “Lee Ann Lazarony” as
the Dunkirk City Court, Chautauqua County treatment court coordinator).

court that he had tested positive for drug use at least three times within the last year,
At the hearing, Ms. Lazarony stated on the record: “I am concerned for his safety
and well-being, Your Honor.” (Doc. 24 at § 33) (internal quotation marks omitted). The
Decedent’s cousin, Christine Kaiser, also appeared at the hearing and advised an on-duty
DPD officer at the Dunkirk City Court that the Decedent was not well and in need of
medical attention. As a result of the Decedent’s positive drug screen, the Dunkirk City

Court remanded the Decedent to the ultimate custody of Defendant Quattrone at the
Chautauqua County Jail, subject to return on April 25, 2019 for further disposition.
In the courtroom, the Decedent was allegedly observed holding his head against a
wall for support, having difficulty walking, and falling on top of Ms. Kaiser when
attempting to embrace her. On that same day, at approximately 10:00 a.m., Ms. Kaiser
described the Decedent’s mental and physical condition to Plaintiff, prompting Plaintiff
to call Defendant DPD and speak with Defendant Zentz. During that call, Plaintiff
informed Defendant Zentz of what she had learned about the Decedent’s condition and
told Defendant Zentz that she was concerned that the Decedent would die ifhe did not
receive immediate medical treatment because he had likely taken a “suicide cocktail” of
drugs. id. at 12, 37. Defendant Zentz allegedly responded that the Decedent was “fine.”
Td.
Upon being remanded into custody, the Decedent became a pretrial detainee of
Defendant City and/or Defendant DPD. Following his appearance at the Dunkirk City
Court, the Decedent was transported to the Dunkirk City lock-up, where he remained in
the custody of Defendant City until transferred to the custody of Defendant Quattrone,
who oversees the Chautauqua County Jail.
Plaintiff alleges that, while he was in the custody of Defendant City, the
Decedent’s condition was “clear, observable, and apparent” to Defendants City and DPD
by and through their employees and other subordinates. /d. at 13, (40. At approximately
1:24 p.m., a Chautauqua County Jail questionnaire (the “Questionnaire”) was completed
for the Decedent wherein it was noted that he was a “‘high risk for ‘medical’ and
psychiatric.” Jd. at 13, 41. Responses to the Questionnaire included that the Decedent

was taking the following medications: “‘Kep[p]ra, [o]lanzap|ilne, [g]abapentin,
Wel[l]butrin,’ and ‘[a]mitript[y]line CVS Brooklyn Square.’” /d. The Questionnaire
further noted that the Decedent was receiving treatment for a medical condition, mental
health treatment, and had taken Suboxone within the last forty-eight hours. The
Questionnaire was signed by Defendant Meyer on Apri! 12, 2019.
At approximately 1:45 p.m., Defendant Meyer completed a Chautauqua County
Health and Human Services/Jail Division Opiate Withdrawal Assessment (the “Opiate
Withdrawal Assessment”) wherein the following narrative is set forth:
Inmate seen for Suboxone w/d Inmate takes 12mg QD. Inmate lethargic &
slurring words. Inmate first admits to meth use, then denies. Inmate then
states he had a dirty urine... multiple drugs. Inmate argumentative ...
staff & blaming medical for not getting his meds. Inmate stated he was
suicidal, but when this writer phoned Sgt Fuller inmate began yelling
“She’s lying.” Set Fuller spoke [with] inmate. Inmate stated he would try to
kill himself just for spite. Inmate asked if he attempted suicide would he be
removed from [constant watch]. Inmate then removed from medical and
taken to booking for [constant watch].
(Doc. 24 at 14, 7 42) (first alteration in Amended Complaint).
At approximately 2:00 p.m., Defendant Damore ordered “Keppra 500 milligrams
po BID,” which Plaintiff alleges means to be taken by mouth twice per day, and
“Olanzapine 10 milligram QHS,” an antipsychotic drug. Jd. at 24 at 14, 43 (internal
quotation marks omitted). Defendant Meyer allegedly received and noted this order.
Plaintiff alleges that Keppra was never administered to the Decedent and further
alleges that, upon information and belief, the Decedent had prior seizures in the
Chautauqua County Jail, including in 2018, and was at high risk for another seizure
without Keppra. Defendants Damore and Meyer allegedly knew or should have known
that polysubstance intoxication or indications could cause respiratory depression and
increased risk of death as well as increasing the risk of seizure death due to respiratory
depression. Plaintiff alleges that Defendant Damore ordered olanzapine while the
Decedent was experiencing polysubstance intoxication and that Defendant Damore
and/or Defendant Meyer administered that drug to the Decedent. The administration of

olanzapine, in combination with the multiple substances which the Decedent took before
incarceration, allegedly further depressed the Decedent’s respiratory function.
Plaintiff alleges, upon information and belief, that medical staff at the Chautauqua
County Jail, including Defendants Damore and Meyer, were familiar with the Decedent’s
medical and psychiatric file and/or records as well as his prescription medications from
the Decedent’s prior incarceration. Plaintiff alleges this includes familiarity with the
Decedent’s previously recorded “high risk factors” including “medical and psychiatric
risks” and “diagnosed . . . bipolar disorder, anxiety, depression and seizures, anger
management issues, mood swings, paranoia, panic attacks, inability to concentrate while
communicating, poor focus and attention, in addition to substantial substance abuse
issues.” fd. at 15-16, | 51.
Following the Opiate Withdrawal Assessment, the Decedent was placed ina
suicide gown and was under constant supervision, also known as “constant watchf{.]” Id.
at 16, 9 53 (internal quotation marks omitted). Plaintiff contends that according to
Defendant Quattrone’s and/or Defendant County’s policies, constant watch required that
staff maintain uninterrupted visual observation of the Decedent and continuous and direct

_ supervision by permanently occupying an established post in close proximity to the □

Decedent. These alleged policies further required that staff maintain a continuous clear
view of the Decedent so as to allow them to intervene immediately and directly in
response to situations or behavior observed which threatened the health or safety of
prisoners or good order of the facility.
At approximately 6:30 p.m., the Decedent was transported to a cell marked
“CS2/,]” where he remained until the following morning. At approximately 7:40 p.m. on
April 10, 2019, the Decedent was given medications, including clonidine, a blood
pressure medication; Imodium, a diarrhea medication; and olanzapine, He was not
adininistered Keppra despite it being ordered. Upon information and belief, this was the
last time any medical treatment was rendered to the Decedent until he was discovered
unresponsive the following morning.
On April 10, 2019, beginning at approximately 6:30 p.m., Defendant Delahoy

monitored the Decedent at a constant watch post outside cell CS2, noting “subject lays on
his stomach, on his bunk,” from 8:40 p.m. until 10:46 p.m., allegedly without periodically
checking for signs of life. fd. at 19, § 62. At 10:46 p.m., Defendant Burrell assumed the
post outside CS2 for constant watch until April 11, 2019 at 6:05 a.m. For the entirety of
his shift, Defendant Burrell noted at ten-minute intervals: “subject laying on bunk on his
stomach{.]” Jd. at 19, {63 (alteration in original). Plaintiff alleges that Defendant Burrell
did not maintain a constant watch with an uninterrupted or unobstructed clear view at all
times of the Decedent and did not periodically check to verify his signs of life.
From 1:50 a.m. until 1:57 a.m. on April 11, 2019, Defendant Burrell was relieved
for a break and the post outside CS2 was assumed by Defendant Roberts. Defendant
Roberts noted “subject laying on bunk on his stomach[.]” (Doc. 24 at 20, 64) (alteration
in original), Defendant Roberts provided Defendant Burrell break coverage from 4:26
a.m. until 4:32 a.m. on April 11, 2019, and again noted “subject laying on his bunk on his
stomach[.}” Id. at 20, {65 (alteration in original). Neither entry indicates that Defendant
Roberts attempted to verify the Decedent’s signs of life.
From April 10, 2019 at 10:56 p.m. until approximately 6:09 a.m, on April 11,
2019, Defendant Roberts conducted supervisory visits of the cells, including the Special
Housing Unit. During these visits, Defendant Roberts allegedly did not inquire about or
undertake to verify for himself the Decedent’s signs of life. Defendant Roberts had been
advised or briefed on the Decedent’s supervision or monitoring requirements as well as
Defendant Fuller’s order to place the Decedent in a suicide gown. Defendant Westfahl
also allegedly made supervisory visits and checked the logbook while the Decedent was
in cell CS2 and at no time verified his signs of life.
On April 11, 2019, at approximately 6:00 a.m., the Decedent was found
unresponsive in his cell. During the Decedent’s time in cell CS2, Defendant Quattrone’s
deputies, Defendants Delahoy, Roberts, Burrell, Westfahl, Fuller, J ohn Doe Deputies,
John Doe Jail Personnel, and others were stationed outside to conduct supervision.
Plaintiff alleges that despite the Decedent’s high-risk assessment, suicide threats,
and apparent incapacitation due to drugs, he was not examined by a jail physician.

Plaintiff alleges that the Decedent had been deceased for a period of several hours prior
to being discovered.
On April 11, 2019, the Office of Erie County Medical Examiner’s Jay Stah!-Herz,
MD, performed an autopsy on the Decedent, noting that he was found face down on the
mattress of his jail cell, that he had a history of polysubstance abuse, and that the cause
and manner of death were undetermined. Dr. Stahl-Herz noted a “possibility of toxicity
due to an as yet unidentified substance consumed before entry into jail cannot be
excluded.” /d. at 22, 471.
While the Decedent was under constant watch, Defendant Quattrone’s staff and
subordinates, including, but not limited to, Defendants Delahoy, Roberts, Burrell,
‘Westfahl, Fuller, John Doe Deputies, and/or John Doe Jail Personnel, allegedly failed to,
among other things, visually observe the Decedent without interruption at a post in close
proximity to him; note his activities every fifteen minutes in a logbook; and verify the
Decedent’s signs of life, including movement or audible speech, breathing, or snoring. In
addition, Defendant Quattrone allegedly negligently failed to train, supervise, and retain
Defendants Delahoy, Roberts, Burrell, Westfahl, Fuller, John Doe Deputies, and/or J ohn
Doe Jail Personnel.
II. Conclusions of Law and Analysis.
A. Standard of Review.
To survive a motion to dismiss filed pursuant to Fed R. Civ. P. 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)). Plaintiff must allege sufficient
facts to “nudgef] their claims across the line from conceivable to plausible|.|” Twombly,
550 U.S. at 570. “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.” Jgbal, 556 U.S. at 678.
The sufficiency of a plaintiff's complaint under Rule 12(b)(6) is evaluated using a
“two-pronged approach[.]” Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010)

(internal quotation marks omitted) (quoting /gbal, 556 U.S. at 679). First, the court
discounts legal conclusions and “[t]hreadbare recitals of the elements ofa cause of action,
supported by mere conclusory statements[.|” /gbal, 556 U.S. at 678. The court is also
“not bound to accept as true a legal conclusion couched as a factual allegation{.]” Jd.
(quoting Twombly, 550 U.S. at 555). Second, the court considers whether the factual
allegations, taken as true, “plausibly give rise to an entitlement to relief.” Id. at 679. This
second step is fact-bound and context-specific, requiring the court “to draw on its judicial
experience and common sense.” /d. The court does not “weigh the evidence” or “evaluate
the likelihood” that a plaintiff's claims will prevail. Christiansen v. Omnicom Grp., Inc.,
852 F.3d 195, 201 (2d Cir. 2017),
B. Whether Plaintiff Plausibly Pleads Proximate Cause.
Defendants contend that Plaintiff's § 1983 claims as well as Counts IV, V, VIII,
and XII must be dismissed against them based on a failure to plausibly allege proximate
cause. In support of this contention, Defendants assert that: (1) the toxicology report did
not show lethal levels of prescription or illicit drugs; (2) Plaintiff fails to allege facts that
any Defendant actually knew of the Decedent’s risk of polysubstance complications,
including respiratory depression; and (3) the Amended Complaint contains no plausible
facts “suggesting that [the Decedent] was placed ‘on watch’ for any reason other than his
own threats of self-harm.” (Doc, 40-4 at 22.)
To bring a claim under § 1983, “[a] defendant’s conduct must be a proximate
cause of the claimed violation in order to find that the defendant deprived the plaintiff of
his rights.” Rahman v. Fisher, 607 F. Supp. 2d 580, 584 (S.D.N.Y. 2009); Townes v. City
of New York, 176 F.3d 138, 146 (2d Cir. 1999) A § 1983 action, like its state tort
analogs, employs the principle of proximate causation.”), “Where the causal connection
is ‘too tenuous,’ the constitutional deprivation is not the proximate cause of actual
injury.” Carmichael y. City of New York, 34 F. Supp. 3d 252, 268 (E.D.N.Y. 2014) □
(quoting Phillips v. City of New York, 871 F. Supp. 2d 200, 206 (E.D.N.Y. 2012)).
“Questions relating to proximate cause are normally questions of fact[.]” Jd. (internal
quotation marks omitted).
10

Defendants argue that the Decedent’s death is not traceable to any violations of his
civil rights because a statement in the Autopsy Report? precludes Plaintiff from arguing
that the Decedent died from a failure to administer Keppra, respiratory depression due to
improper administration of olanzapine, or respiratory depression due to polysubstance
intoxication. Because the Autopsy Report does not determine a cause of death, it also
does not foreclose the possibility that Plaintiff's claimed causal factors were a proximate
cause of the Decedent’s death. The Autopsy Report alone is therefore insufficient to
render Plaintiffs causation claims implausible. See Page v. Monroe, 300 F. App’x 71, 75
(2d Cir. 2008) (“It is axiomatic that proximate cause ordinarily is a question to be
determined by the finder of fact.”) (internal quotation marks omitted) (quoting Decker v.
Forenta LP, 736 N.Y.S.2d 554, 555 (N.Y. App. Div. 2002)), This conclusion is
underscored by the Autopsy Report’s finding that the Decedent had ingested “prescribed
medications in concentrations that are not consistent with an acute mixed drug
intoxication that would cause death[,]” (Doc. 40-2 at 5) (emphasis supplied), while
recognizing a “possibility of toxicity due to an as yet unidentified substance consumed
before entry into jail[.]” (Doc. 24 at 22, | 71) (internal quotation marks omitted).
Defendants further contend that Plaintiff fails to allege that any of them actually
knew of the Decedent’s risk of polysubstance complications, including respiratory

3 Defendants cite the following statement from the Autopsy Report:
Toxicology testing revealed prescribed medications in concentrations that are not
consistent with an acute mixed drug intoxication that would cause death. Vitreous
chemistries were within normal limits. Microscopic examination of tissues was
unremarkable... . Following a thorough investigation, the cause and manner of
death for this decedent remain undetermined. ... The possibility of toxicity due to
an as yet unidentified substance consumed before entry into jail cannot be
excluded.
(Doc. 40-2 at 5.) Although Plaintiff did not include the Autopsy Report as an attachment to her
Amended Complaint, “[a] complaint is-deemed to include any written instrument attached to it as
an exhibit, materials incorporated in it by reference, and documents that, although not
incorporated by reference, are integral to the complaint[.]” Sira v. Morton, 380 F 3d 57, 66 Qd
Cir. 2004) (citations and internal quotation marks omitted). Because Plaintiff references the
Autopsy Report in her Amended Complaint, it is properly considered on a motion to dismiss. Id.
11

depression, and there is no basis to impute to them knowledge that the Decedent had
ingested lethal doses of drugs prior to entering the jail. Defendants argue that Plaintiff
alleges that information was given only to Defendants DPD and Zentz.
In her Amended Complaint, Plaintiff alleges that upon the Decedent’s arrival at
the Chautauqua County Jail, the Questionnaire as well as the Opiate Withdrawal
Assessment were completed and Defendant Meyer noted that the Decedent had ingested
Suboxone within the last forty-eight hours, admitted to using methamphetamine, said that
he had “a dirty urine” from a mix of drugs, and reported that he was suicidal. (Doc. 24 at
14, 4 42.) Even if, as Defendants argue, they did not know that hours earlier the
Decedent’s drug screen was positive for THC, cocaine, benzodiazepine, and Suboxone
and that Ms. Lazarony, Mt. Kaiser, and Plaintiff had each expressed concerns regarding
the Decedent’s health and well-being, Plaintiff has plausibly alleged that Defendant
Meyer was aware of the Decedent’s ingestion of multiple substances through the
Questionnaire and Opiate Withdrawal Assessment and that the remaining Defendants
knew that the Decedent was a “high medical and psychiatric risk[][.]” (Doc. 24 at 27-28,
{ 92.) These facts are sufficient at the pleading stage to support a claim that Defendants
were on notice of the risk of death or serious harm from polysubstance abuse.
Finally, although Defendants assert that it is uncontested that the Decedent was
placed on constant watch because of his threats of self-harm, a single record’ does not
negate the existence of other causal factors in the Decedent’s death nor does it negate
Defendants’ knowledge of those causal factors. See Gierlinger v. Gleason, 160 F.3d 858,
872 (2d Cir, 1998).
Accepting Plaintiff's allegations as true, although a close question, she has
plausibly pled a proximate causal connection between Defendants’ alleged deprivation of
the Decedent’s constitutional right to adequate medical treatment and safe conditions of
confinement and the Decedent’s death. Defendants’ motion to dismiss on Counts IV, V,
VI, VII, VIL, LX, X, XIL, and XIII for failure to plausibly plead proximate cause is

4 See Doc. 24-1 at6 (“[Pler Sgt. Fuller, subject on watch, subject made threats to harm...
himself].]”).
12

therefore DENIED.
C, Whether Plaintiff Plausibly Pleads a Monel/ Claim Against Defendant
County.
To state a claim for deliberate indifference to serious medical needs pursuant to 42
U.S.C. § 1983, a pretrial detaince must allege: “(1) objectively, the deprivation the
[detainee] suffered was sufficiently serious that he was denied the minimal civilized
measure of life’s necessities, and (2) subjectively, the defendant official acted with a
sufficiently culpable state of mind ..., such as deliberate indifference to [detainee]
health or safety.” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (alterations in
original) (internal quotation marks and citation omitted).
A municipality can be liable under § 1983 “if the deprivation of the plaintiff's
rights under federal law is caused by a governmental custom, policy, or usage of the
municipality.” Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir, 2012). “A plaintiff
may satisfy the ‘policy, custom or practice’ requirement [of a Monell claim] in one of
four ways[,]” Brandon v. City of New York, 705 F. Supp. 2d 261, 276 (S.D.N.Y. 20 10),
by alleging:
(1) a formal policy endorsed by the municipality; (2) actions directed by the
government’s authorized decisionmakers or those who establish
governmental policy; (3) a persistent and widespread practice that amounts
to a custom of which policymakers must have been aware; or (4) a
constitutional violation resulting from policymakers’ failure to train
municipal employees{,]
Deferio v. City of Syracuse, 770 F. App’x 587, 590 (2d Cir. 2019) (citations and internal
quotation marks omitted) (alterations adopted). “[A] plaintiff also must establish an
‘affirmative’ causal link between the municipality’s policy, custom, or practice and the
alleged constitutional injury.” Dumel v. Westchester Cnty., 2021 WL 738365, at *5
(S.D.N.Y. Feb, 25, 2021).
Defendant County asserts that Plaintiff has failed to state a Monell claim against it
because she has not plausibly alleged that the constitutional violation was caused by its
official “policy or custom,” nor has she plausibly alleged a failure to train or supervise.
Plaintiff responds that Defendant County maintained a deficient formal constant watch
13

policy, permitted practices of inmate neglect that were so widespread as to constitute a
custom or policy, did not have a jail physician, and failed to train and supervise
subordinates regarding medical and psychiatric care and treatment. With regard to a
formal policy, Plaintiff alleges that Defendant County’s policies required “uninterrupted
visual observation [of the Decedent], and continuous and direct supervision by
permanently occupying an established post in close proximity to [the Decedent],” (Doc.
24 at 16, 4 54), which Plaintiff contends was constitutionally deficient because Defendant
County’s staff were not required to verify the Decedent’s signs of life during constant
watch. She points out that New York Commission of Correction standards mandate that
correctional staff “periodically check to verify signs of life,” (Doc. 50-8 at 18), and
further asserts “as a result of the deficient written policies of [Defendant County]...
[D]ecedent, ... was in fact deprived of access to adequate medical care and treatment[.]”
(Doc. 24 at 33, § 114.)
A violation of prison policy does not, alone, give rise to a claim under § 1983. See
Joseph v. Marche, 2019 WL 1172382, at *4 (W.D.N.Y. Mar. 13, 2019) (“An alleged
violation of a prison policy, directive, or regulation, in and of itself, does not give rise to
a federal claim[.]”) (citing Russell v. Coughlin, 910 F.2d 75, 78 n.1 (2d Cir. 1990)).
Moreover, “where the policy relied upon is not itself unconstitutional, considerably more
proof than the single incident will be necessary in every case to establish both the
requisite fault on the part of the municipality, and the causal connection between the
‘policy’ and the constitutional deprivation.” City of Oklahoma City v. Tuttle, 471 US.
808, 824 (1985) (footnotes omitted). In this case, an allegedly deficient policy to verify
signs of life during constant watch in a single case, without more, will not suffice to state
a claim of municipal liability under Monell. /d. Plaintiff's Monell claim based on a failure
to train or supervise is similarly deficient.
To plead a Monell claim based on a failure to train or supervise, a plaintiff must
plead (1) that “a policymaker knows ‘to a moral certainty’ that her employees will
confront a given situation[,]” (2) “that the situation either presents the employee with a
difficult choice of the sort that training or supervision will make less difficult or that there |
14

is a history of employees mishandling the situation[,]” and (3) “that the wrong choice by
the city employee will frequently cause the deprivation of a citizen’s constitutional
rights.” Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992). As the Second
Circuit has observed:
A pattern of similar constitutional violations by untrained employees is
“ordinarily necessary” to demonstrate deliberate indifference for purposes
of failure to train [or supervise]. Policymakers’ “continued adherence to an
approach that they know or should know has failed to prevent tortious
conduct by employees may establish the conscious disregard for the
consequences of their action—the ‘deliberate indifference’—necessary to
trigger municipal liability.” Without notice that a course of training [or
supervision] is deficient in a particular respect, decisionmakers can hardly
be said to have deliberately chosen a training program that will cause
violations of constitutional rights.
Connick vy. Thompson, 563 U.S. 51, 62 (2011) (citations omitted).
“Merely alleging that Defendants failed to institute adequate procedures is not
enough to survive dismissal. Such a failure must first rise to the level of deliberate
indifference to be actionable.” Hardy v. Erie Cnty., 2012 WL 1835624, at *3 (W.D.N.Y.
May 18, 2012). With regard to a failure to train or supervise claim, “when [municipal]
policymakers are on actual or constructive notice that a particular omission in their
training program causes [municipal] employees to violate citizens’ constitutional rights,
the [municipality] may be deemed deliberately indifferent if the policymakers choose to
retain that program.” Connick, 563 U.S. at 61 (citations omitted), Correspondingly, a
failure to train or supervise evinces a municipal custom or policy only where decision-
makers adopt an “approach that they know or should know has failed to prevent tortious
conduct by employees[.]” Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397,
407 (1997).
A single instance of allegedly unconstitutional conduct is generally insufficient to
impose Monell liability. See Tuttle, 471 U.S. at 831 (“To infer the existence of a city
policy from the isolated misconduct of a single, low-level officer, and then to hold the
[County] liable on the basis of that policy, would amount to permitting precisely the
theory of strict respondeat superior liability rejected in Monell.”) (J. Brennan,
15

concutring); Jacovangelo v. Corr. Med. Care, Inc., 624 F. App’x 10, 14 (2d Cir. 2015)
(affirming a dismissal of a plaintiff's Monel! claim for deliberate indifference to serious
medical needs because “the amended complaint provides only one additional example of
a similar incident”); Jones, 691 F.3d at 85 (finding that the plaintiff showed “two
instances, or at the most three” cases of unconstitutional conduct by a “small number of
officers” that occurred “over a period of several years[,]” which “fell far short of showing
a policy, custom, or usage of officers” or conduct “so persistent that it must have been
known to supervisory authorities”), Because Plaintiff's failure to train and supervise
allegations are based on a single incident, she has not plausibly pled that Defendants had
“notice that [the] course of training [and supervision were] deficient[.]” Connick, 563
USS, at 1360.
For the foregoing reasons, because Plaintiff fails to plausibly allege a Monell
claim based on Defendant County’s alleged deficient constant watch policy or based on a
failure to train or supervise, Defendant County’s motion to dismiss Count V1 is
GRANTED.
D. Whether Plaintiff’s § 1983 Official Capacity Claims Should be
Dismissed as Redundant.
Defendants assert that Plaintiff's official capacity § 1983 claims against
Defendants Fuller, Westfahl, Damore, Meyer, Delahoy, Roberts, Burrell, John Doe
Deputies, and John Doe Jail Personnel, as set forth in Counts VII, X, and XII of the
Amended Complaint, are redundant because “[s]uits against state officials in their official
capacity .. . should be treated as suits against the State.” Hafer v. Melo, 502 U.S. 21, 25

(1991), The court agrees,
“Based upon the understanding that it is duplicative to name both a government
entity and the entity’s employees in their official capacity, courts have routinely
dismissed corresponding claims against individuals named in their official capacity as
redundant and an inefficient use of judicial resources.” Alvarado v, Westchester Cnty., 22
F. Supp. 3d 208, 213 (S.D.N.Y. 2014) (internal quotation marks omitted) (quoting
Castanza v. Town of Brookhaven, 700 F. Supp. 2d 277, 284 (E.D.N.Y. 2010)).

16

Defendants’ motion to dismiss Plaintiff's official capacity § 1983 claims in Counts
VIL, X, and XII against Defendants Fuller, Westfahl, Damore, Meyer, Delahoy, Roberts,
Burrell, John Doe Deputies, and John Doe Jail Personnel as redundant is GRANTED.
E. Whether Plaintiff Plausibly Pleads a Deliberate Indifference Claim
Against Defendants Damore and Meyer.
Defendants assert that Plaintiff's deliberate indifference claim against Defendants
Damore and Meyer is indistinguishable from her negligence and medical malpractice
claims against them and is unsupported by plausible factual allegations that these
Defendants acted with the requisite state of mind. Plaintiff responds that Defendants
Damore and Meyer knew or should have known that there was a high risk to the
Decedent’s health and safety due to his polysubstance intoxication and medical history
which could lead to an increased risk of seizure and/or death.
[‘T']o establish a claim for deliberate indifference to conditions of
confinement under the Due Process Clause of the Fourteenth Amendment,
the 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 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 □□□
Subjectively, the official charged with deliberate indifference must act with a
“sufficiently culpable state of mind[.|” See Wilson v. Seiter, 501 U.S. 294, 298 (1991).
The objective component requires that “the alleged deprivation must be sufficiently
serious, in the sense that a condition of urgency, one that may produce death,
degeneration, or extreme pain exists.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.
1996) (internal quotation marks omitted),
“Medical malpractice does not rise to the level of a constitutional violation unless
the malpractice involves culpable recklessness—‘an act or a failure to act by [a] prison
doctor that evinces a conscious disregard of a substantial risk of serious harm.’” Hill v.
Curcione, 657 F.3d 116, 123 (2d Cir. 2011) (quoting Chance v. Armstrong, 143 F.3d 698,
17

703 (2d Cir. 1998)). As a result, “a complaint that a physician has been negligent in
diagnosing or treating a medical condition does not state a valid claim of medical
mistreatment].]” Estelle v. Gamble, 429 U.S. 97, 106 (1976) (applying the Eighth
Amendment),
Plaintiff alleges that Defendant Meyer knew or should have known that the
Decedent’s condition posed a high risk of death or serious bodily injury because she
completed the Questionnaire and conducted an Opiate Withdrawal Assessment in which
the Decedent was slurring his words and was lethargic; said he had “a dirty urine”; stated
that he was suicidal: and had used a number of illegal drugs. (Doc. 24 at 14, J 42.)
Following Defendant Meyer’s completion of the Opiate Withdrawal Assessment, the
Decedent was placed in a suicide gown under constant watch, which Plaintiff argues was
a wholly insufficient and reckless response based on the Decedent’s multiple risk factors.
At the pleading stage, although a close question, this is sufficient to state a claim of

deliberate indifference. See lacovangelo, 624 F. App’x at 13 (finding that the plaintiff
had plausibly alleged the defendant recklessly failed to act with reasonable care when
“Tthe decedent] admitted to the daily use of drugs... , that she had a history of drug and
alcohol abuse, and that she acknowledged being under the influence of drugs at the time
of her admission to jail”).°
In contrast, Plaintiff does not allege that Defendant Damore was provided with the
Questionnaire or the Opiate Withdrawal Assessment, nor does she allege Defendant
Damore personally examined the Decedent. Instead, Defendant Damore’s role appears to
be confined to prescribing medications for the Decedent and possibly administering them.
Plaintiff's cursory allegation that Defendant Damore was familiar with the Decedent’s

5 See also Gabriel v. Cnty. of Herkimer, 889 F. Supp. 2d 374, 396 (N.D.N.¥.2012) (observing
that “the alleged deprivations—particularly the failure to notice symptoms of drug intoxication
and the failure to provide .. . medical treatment—were ‘sufficiently serious’ deprivations,
creating a risk of ‘death, degeneration, or extreme pain’”) (citations omitted); Sfojcevski vy. Cnty.
of Macomb, 2019 WL 4744432, at *12 (E.D. Mich. Sept. 30, 2019) (holding that “{a] reasonable
jury could... conclude that reliance on an individual at risk for polysubstance abuse to self-
report his or her worsening condition constitutes deliberate indifference”).
{8

medical history based on his prior incarceration presupposes a physician’s recall of the
medical history of each person under his or her care. See Gallop v. Cheney, 642 V.3d 364,
368 (2d Cir. 2011) (holding a court may dismiss a claim if the “well-pleaded facts” are
nonetheless implausible). Plaintiff does not further allege that Defendant Damore
reviewed the Decedent’s medical records before prescribing him medications, In any
event, as Defendants point out, the Autopsy Report concludes prescribed medications did
not cause the Decedent’s death.
Although discovery may yield additional information regarding Defendant
Damore’s knowledge of the Decedent’s condition, it is not presently set forth in the
Amended Complaint. The Amended Complaint therefore does not plausibly allege that
Defendant Damore “knew or should have known” that the medications she prescribed to
the Decedent objectively “posed an excessive risk to [his] healthy and safety.” Darnell,
849 F.3d at 35. Because Plaintiff's § 1983 claim against Defendant Damore does not
plausibly allege deliberate indifference, it is more properly characterized as a negligence
claim, which is not actionable under § 1983.°
For the reasons stated above, Defendants’ motion to dismiss Count VII, deliberate
indifference to the Decedent’s serious medical needs, is DENIED as to Defendant Meyer
and GRANTED as to Defendant Damore.
F, Whether Plaintiff Plausibly Pleads Defendants’ Personal Involvement
Under § 1983 and that Defendants Acted with the Requisite State of
Mind.
“It is well settled that, in order to establish a defendant’s individual liability in a
suit brought under § 1983, a plaintiff must show, inter alia, the defendant’s personal
involvement in the alleged constitutional deprivation.” Grudlon v. City of New Haven,
720 F.3d 133, 138 (2d Cir, 2013). Stated differently, a plaintiff “must . . . establish that [a
defendant] violated” the Eighth Amendment by his or her own conduct, “not by reason of
[his or her} supervision of others who committed the violation. [A plaintiff] must show

6 See Weyant v, Okst, 101 F.3d 845, 856 (2d Cir. 1996) (holding a plaintiff must establish
“something more than mere negligence” to establish deliberate indifference under the Fourteenth
Amendment) (internal quotation marks and citation omitted).
19

that [the defendant] herself ‘acted with deliberate indifference’—meaning that [the
defendant] personally knew of and disregarded an excessive risk to [the Decedent’s]
health or safety.” Tangreti v. Bachmann, 983 F.3d 609, 619 (2d Cir. 2020) (internal
quotation marks omitted). The Second Circuit has observed that while “there is no special
rule for supervisory liability] . . .‘[t]he factors necessary to establish a [§ 1983] violation
will vary with the constitutional provision at issue’ because the elements of different
constitutional violations vary.” Jd. at 618.
In Darnell, the Second Circuit explained that, in contrast with Eighth Amendment
deliberate indifference claims, an official can “violate the Due Process Clause of the
Fourteenth Amendment without meting out any punishment, which means that the Due
Process Clause can be violated when an official does not have subjective awareness that
the official’s acts (or omissions) have subjected the pretrial detainee to a substantial risk
of harm.” Darnell, 849 F.3d at 35. However,
the 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 health or safety. In other
words, the “subjective prong” (or “mens rea prong”) of a deliberate
indifference claim is defined objectively.
Td.
Plaintiffs allegations against Defendant Quattrone are limited to his promulgation
of deficient policies, permitting unlawful acts which amounted to a custom or policy, and
failing to train his subordinates. Plaintiff does not further allege that Defendant Quattrone
was personally involved in a constitutional violation or even that he had any personal
contact with the Decedent. Defendants’ motion to dismiss Count IX against Defendant
Quattrone in his individual capacity is therefore GRANTED.
Defendants assert that Plaintiffs individual capacity deliberate indifference claims
against Defendants Fuller, Westfahl, Delahoy, Burrell, and Roberts must also be
dismissed because they only knew of a risk of suicide and were unaware of the
Decedent’s risk of death from polysubstance intoxication or respiratory depression,
20

Defendants argue that Plaintiff further fails to plausibly allege that these individuals acted
with the requisite state of mind.
Plaintiff's allegations of deliberate indifference against Defendants Fuller,
Westfahl, Delahoy, Burrell, and Roberts include that each was posted outside the
Decedent’s cell during the period of constant watch and failed to verify the Decedent’s
signs of life. She has therefore plausibly alleged personal involvement. Plaintiff does not,
however, further allege that Defendants knew that the Decedent was at risk for overdose,
only that he was a “known medical and psychiatric risk, as evidenced by the fact that...
he... had been placed in a suicide gown and in cell CS2 under constant supervision or
constant watch.” (Doc. 24 at 42-43, J 140.) “[I|n general, . . . deliberate indifference [is]
lacking where officers take affirmative and reasonable steps to protect detainees from
suicide.” Kelsey v. City of New York, 306 F. App’x 700, 703 (2d Cir, 2009). Here, even
though the Decedent was placed in a suicide gown, Plaintiff does not assert Defendants
Fuller, Westfahi, Delahoy, Burrell, and Roberts were aware of any other specific risks of
harm and intentionally or recklessly disregarded them, nor does she plausibly allege that
they acted with the requisite state of mind.
Defendants’ motion to dismiss § 1983 claims against Defendants Fuller, Westfahl,
Delahoy, Burrell, and Roberts for failure to allege that they acted with the requisite state
of mind is therefore GRANTED.’
G. Whether Defendant Meyer is Entitled to Qualified Immunity,
Defendant Meyer contends she is entitled to qualified immunity because her
conduct did not violate a clearly established right. “The doctrine of qualified immunity
protects government officials from suit if ‘their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.’” Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013) (S.D.N.Y.
2015) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A court must determine:

? Because the individual capacity claims against these Defendants under § 1983 are dismissed,
the court does not address whether their dismissal is also appropriate pursuant to the doctrine of
qualified immunity.
21

“(1) whether plaintiff has shown facts making out violation of a constitutional right; (2) if
so, whether that right was ‘clearly established’; and (3) even if the right was ‘clearly
established,’ whether it was ‘objectively reasonable’ for the officer to believe the conduct
at issue was lawful.” Jd.
Although, “usually, the defense of qualified immunity cannot support the
grant of a Rule 12(b)(6) motion for failure to state a claim upon which
relief can be granted,” a district court may grant a Rule 12(b)(6) motion on
the ground of qualified immunity if “the facts supporting the defense
appear on the face of the complaint.”
Hyman v. Abrams, 630 F. App’x 40, 42 (2d Cir. 2015) (quoting McKenna v. Wright, 386
F.3d 432, 435-36 (2d Cir, 2004)).
“A Government official’s conduct violates clearly established law when, at the
time of the challenged conduct, the contours of a right are sufficiently clear that every
reasonable official would have understood that what he is doing violates that right.” Vega
Semple, 963 F.3d 259, 274 (2d Cir. 2020) (internal quotation marks and citation
omitted). It is understood that this analysis is undertaken to “ensure that the official being
sued had fair warning that his or her actions were unlawful.” /d. (internal quotation marks
omitted),
Plaintiff alleges that Defendant Meyer violated the Decedent’s constitutional
rights through deliberate indifference to his medical needs, resulting in the Decedent’s
untimely death. Defendant Meyer conducted the Opiate Withdrawal Assessment with the
Decedent, who informed her, among other things, that he was suffering withdrawal from
Suboxone, may have ingested methamphetamine, had “a dirty urine” from multiple
substances, and was considering suicide. (Doc. 24 at 14, J 42.) She also signed the
Questionnaire, which indicated Plaintiff was taking four prescriptions including Keppra
and Olanzapine. These documents arguably placed her on notice of the potential for
serious bodily injury or death for reasons beyond self-harm.
Because a right to adequate medical care is clearly established, see Estelle, 429
U.S. at 104, and because Plaintiff plausibly pleads a constitutional violation and
Defendant Meyer’s personal involvement, the court must await a factual record to

22

evaluate Defendant Meyet’s qualified immunity claim. Defendant Meyer’s motion to
dismiss claims against her on the basis of qualified immunity is therefore DENIED.
H. Whether Plaintiff Plausibly Pleads Negligent Training, Supervision,
and Retention Claims Against Defendants County and Quattrone.
Defendants argue that Plaintiffs negligent training, supervision, and retention
claims against Defendants County and Quattrone fail because Plaintiff has not alleged
that those Defendants’ subordinates acted outside the scope of their employment or had a
propensity for the conduct alleged and because Defendant County is not vicariously liable
for the acts of Defendant Quattrone’s subordinates.
Under New York law, “[w]here the acts of ‘employees’ are concerned, an
employer can be held vicariously liable under principles of respondeat superior for acts
committed within the scope of the employee’s employment, or may be held directly liable
for ‘negligent hiring, retention, or supervision’ for acts committed outside that scope.”
Ben v. United States, 160 F. Supp. 3d 460, 476 (N.D.N.Y. 2016) (emphasis and alteration
in original) (internal quotation marks omitted) (quoting Williams v. Boulevard Lines, Inc.,
2013 WL 1180389, at *13, n. 10 (S.D.N.Y. Mar. 12, 2013)).
While such vicarious liability does not arise from acts that are committed
for the employee’s personal motives unrelated to the furtherance of the
employer’s business, those acts which the employer could reasonably have
foreseen are within the scope of the employment and thus give rise to
liability under the doctrine of respondeat superior, even where those acts
constitute an intentional tort or a crime[.]
Galasso, Langione & Botter, LLP v. Galasso, 113 N.Y.8.3d 110, 118 (N.Y. App. Div.
2019) (internal quotation marks omitted) (quoting Holmes y. Gary Goldberg & Co., 838
N.Y.S.2d 105 (N.Y. App. Div. 2007)). “A necessary element of a cause of action to
recovet damages for negligent hiring, retention, or supervision is that the employer knew
or should have known of the employee’s propensity for the conduct which caused the
injury.” Perrone v. Monroe Cnty. Sheriff Patrick O'Flynn, 2015 WL 7776930, at *8
(W.D.N.Y, Dec. 2, 2015) (internal quotation marks omitted) (quoting Shu Yuan Huang v.
St. John’s Evangelical Lutheran Church, 12 N.Y.8.3d 232, 232 (N.Y. App. Div. 2015)).
Plaintiff alleges that “County employees and subordinates negligently disregarded
23

multiple rules, regulations, and protocols in the maintenance of the Chautauqua County
Jail such that” the Decedent “was not sent to a hospital or provided with heightened
medical care[.]” (Doc. 24 at 31-32, § 110.) These Defendants were acting “in furtherance
of the[ir] employer’s business,” Galasso, 113 N.Y.8.3d at 118, and within the scope of
their employment. Plaintiff does not allege that these Defendants had a propensity for
such conduct or that Defendants County or Quattrone were aware of any such propensity.
Therefore, to the extent that Counts V and VIII are based on negligent training,
supervision, and retention of subordinates, Plaintiff fails to plead a plausible cause of
action against Defendants County and Quattrone.
As an alternative ground for dismissal of Count V, Defendants contend that
Defendant County cannot be held vicariously liable for Defendant Quattrone’s alleged
negligent training and/or supervision of his deputies, “The County’s duty to provide and
maintain the jail building is distinguishable from defendant Sheriffs duty to ‘receive and

_ safely keep’ prisoners in the jail over which he has custody[.]” Freeland v. Erie Cnty.,
997 N.Y.S.2d 860, 862 (N.Y. App. Div. 2014) (quoting N.Y. Correct. Law § 500-c),
Mosey v. Cnty. of Erie, 984 N.Y.S.2d 706, 709 (N.Y. App. Div. 2014) (“The court...
properly granted defendants’ respective motions insofar as defendants asserted that they
were not vicariously liable for the conduct of the deputy sheriff.”). To the extent that
Plaintiff's negligence claim against Defendant County relies on Defendant County’s
vicarious liability for Defendant Quattrone’s deputies, including Defendant John Does,
that claim must be dismissed. See Villar v. Cnty. of Erie, 5 N.Y.S.3d 747, 748 (N.Y. App.
Div. 2015) (holding that a county “may not be held responsible for the negligent acts of
the Sheriff and his deputies on the theory of respondeat superior, in the absence ofa local
law assuming such responsibility”) (internal quotation marks omitted) (quoting
Marashian v, City of Utica, 626 N.Y.S.2d 646, 647 (N.Y, App. Div. 1995)); Busch v.
Howard, 2021 WL 2946532, at *4 (W.D.N.Y. July 14, 2021) (dismissing a negligence
claim against a county based on respondeat superior liability because the “[p]laintiff
ha[d] not alleged that [the] County ... enacted a local law adopting respondeat superior
liability”) (quoting DiJoseph v. Erie Cnty., 2020 WL 4194136, at *10 (W.D.N.Y. July 21,
24

2020)).
Defendants’ motion to dismiss Count V against Defendant County and Count VIII
against Defendant Quattrone is GRANTED.
I, Whether Plaintiff’s Negligent Breach of a Duty to Adequately
Supervise Claim is Duplicative.
Defendants argue that Count XI against Defendants Roberts, Delahoy, Burrell,
Westfahl, Fuller, John Doe Jail Personnel, and John Doe Deputies for negligently
breaching a duty to adequately supervise the Decedent must be dismissed as duplicative
of Count V because there is no allegation that these Defendants acted outside the scope of
their duties as employees of the County. Plaintiff counters that her fifth and eleventh
causes of action are different because Count V asserts negligence against Defendant
County with respect to its “duty to maintain the jail” and negligent training of employees
(Doe. 24 at 31, 109-10) while Count XI alleges negligence against Defendants
Roberts, Delahoy, Burrell, Westfahl!, Fuller, John Doe Jail Personnel, and J ohn Doe
Deputies for their negligent supervision of the Decedent.
Plaintiffs fifth and eleventh causes of action are asserted against different
defendants and allege different theories of recovery. They are therefore not duplicative,
and Defendants’ motion to dismiss Count XI on that ground is DENIED.
J. Whether Plaintiff’s Medical Malpractice Claims Should be Dismissed
for Procedural Noncompliance.
Under the New York Civil Practice Law Rules:
[ijn any action for medical, ... malpractice, the complaint shall be
accompanied by a certificate, executed by the attorney for the plaintiff,
declaring that:
the attorney has reviewed the facts of the case and has consulted
with at least one physician in medical malpractice actions, ... who is
licensed to practice in this state or any other state and who the
attorney reasonably believes is knowledgeable in the relevant issues
involved in the particular action, and that the attorney has concluded
on the basis of such review and consultation that there is a
reasonable basis for the commencement of such action[.]
N.Y. C.P.L.R. § 3012-a(a)(1).

25

Defendants argue that Plaintiff failed to file a Certificate of Merit in compliance
with New York law with her Amended Complaint. Her failure to do so does not negate
her malpractice claims because she filed a Certificate of Merit with her Original
Complaint. See Buchanan y. Hesse, 2018 WL 6067234, at *3 (S.D.N.Y. Nov. 20, 2018)
(denying a motion to dismiss based on “Plaintiffs’ counsel provided a certificate of merit
with the original complaint, which included a personal injury claim for pain and
suffering. The [moving [d]efendants do not explain why a revised certificate is necessary
here”); Frierson v. United States, 2019 WL 2601692, at *4 (D. Vt. June 25, 2019)
(rejecting “the United States’ contention that [the plaintiffs failure to include a
certificate of merit with the First Amended Complaint required dismissal of the entire
complaint” because the plaintiff included the certificate of merit with original complaint
and therefore the “screening process[]” was complete). Defendants’ motion to dismiss
Plaintiff's medical malpractice claims for failure to file a Certificate of Merit is therefore
DENIED.
IK. Leave to Amend.
Pursuant to Fed R. Civ. P. 15(a), courts “should freely give leave” to amend a
complaint “when justice so requires.” Fed. R Civ. P. 15{a). However, “[I]eave may be
denied ‘for good reason, including futility, bad faith, undue delay, or undue prejudice to
the opposing party.’” TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 2d Cir.
2014) (quoting McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007)).
Because at this juncture the court cannot find that any claims asserted by Plaintiff
would be futile, and because there is no other ground on which to deny leave to amend,*
Plaintiff is hereby GRANTED leave to amend within twenty (20) days of the date of this
Opinion and Order consistent with the Federal Rules of Civil Procedure and this court’s
Local Rules.
CONCLUSION
For the foregoing reasons, the court GRANTS Defendants’ motion to dismiss

8’ Defendants request that the court dismiss Counts VI, IX, X, XI, and XT with prejudice but do
not explain why they contend that outcome is appropriate.
26

Counts V, VI, VHI, [X, and XII, GRANTS IN PART and DENIES IN PART
Defendants’ motion to dismiss Counts VII and X and DENIES Defendants’ motion to
dismiss Count IV, XI, and XIU. The court GRANTS leave to amend the Amended
Complaint within twenty (20) days of the date of this Opinion and Order.
SO ORDERED.
SHE ce
Dated this’Y day of July, 2021. □
0 ge gncesi
So
Christina Reiss, District Judge
United States District Court

27

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10363997. Public record. Not legal advice.