Huber v. County of Erie

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

______________________________________

JESSICA HUBER, DECISION

and

Plaintiff, ORDER

v.

20-CV-00748V(F)

COUNTY OF ERIE,

ERIE COUNTY SHERIFF TIMOTHY B. HOWARD,

ERIN BURCH, Psychologist,

SHANNON STEVENSON,

CHRISSY SCOTT,

MELISSA MULDOON,

CALLY GRAHAM,

CYNTHIA L. MULLER, RN,

KEVIN BUGMAN, RN,

KRISTIN KRTANJEK, NP,

TOM CHAPIN, PNP, and

UNIVERSITY PSYCHIATRIC PRACTICE, INC.,

Defendants.

______________________________________

APPEARANCES: THE PHOENIX LAW GROUP PLLC

Attorneys for Plaintiff

FARES A. RUMI, of Counsel

2166 Church Road

Darien Center, New York 14040

MICHAEL A. SIRAGUSA

ERIE COUNTY ATTONREY

Attorney for Defendants Erie County, Sheriff Howard,

Stevenson, Scott, Muldoon, Graham, Krtanjek, and Bugman

JEREMY C. TOTH, Assistant County Attorney, of Counsel

95 Franklin Street, Room 1634

Buffalo, New York 14202

GIBSON, McASKILL & CROSBY, LLP

Attorneys for Defendant Chapin

CRAIG R. WATSON, and

KATHLEEN MARIE SWEET, of Counsel

69 Delaware Avenue, Suite 900

Buffalo, New York 14202-3866

JURISDICTION

This case was referred to the undersigned by Honorable Lawrence J. Vilardo on

July 27, 2020, for all pretrial matters including preparation of a report and

recommendation on dispositive motions. The matter is presently before the court on

County Defendants’ First Motion to Dismiss for Failure to State a Claim, filed July 24,

2020 (Dkt. 6), County Defendants’ Second Motion to Dismiss for Failure to State a

Claim, filed August 27, 2020 (Dkt. 14), Plaintiff’s First Motion to Amend/Correct

Complaint, filed August 30, 2020 (Dkt. 16), and Defendant Chapin’s Motion to Dismiss

the Complaint and First Amended Complaint, filed September 9, 2020 (Dkt. 19).

BACKGROUND

Plaintiff Jessica Huber (“Plaintiff”) commenced this civil rights action pursuant to

42 U.S.C. § 1983 alleging violations of her Fourteenth Amendment rights, as well as

common law negligence and malpractice claims against Defendants County of Erie

(“the County”), Erie County Sheriff Timothy B. Howard (“Howard”), Shannon Stevenson

(“Stevenson”), Chrissy Scott (“Scott”), Melissa Muldoon (“Muldoon”), Cally Graham

(“Graham”), Kevin Bugman, RN (“Bugman”), and Kristina Krtanjek, NP (“Krtanjek”)

(together, “County Defendants”), as well as psychologist Erin Burch (“Dr. Burch”),

Cynthia Muller, RN (“Muller”), Tom Chapin, PNP (“Chapin”), and University Psychiatric

Practice, Inc. (“UPPI”).1 Plaintiff’s claims pertain to an alleged denial of appropriate

medical care while in the custody of Defendant County, including failure to provide

Plaintiff with necessary medications Plaintiff was prescribed for various ailments

1 According to the docket, Dr. Burch, Muller, and UPPI were never served and have yet to appear in this

action.

including depression, bipolar disorder, and anxiety, as well as hypertension,

hyperlipidemia, and a seizure disorder, and unreasonable use of force, resulting in

physical and psychological harm. All those named as Defendants have been served

and appeared in this action through counsel with the exception of Burch, Muller, and

UPPI.

On July 24, 2020, County Defendants filed a motion to dismiss for failure to state

a claim (Dkt. 6) (County Defendants’ First Motion to Dismiss”), attaching the Declaration

of [Assistant County Attorney]2 Jeremy C. Toth in Support of Defendants’ Motion to

Dismiss (Dkt. 6-1) (“First Toth Declaration”), with Exhibit A (Dkt. 6-2), and the

Memorandum of Law in Support of Defendants’ Motion to Dismiss (Dkt. 6-3) (“County

Defendants’ Memorandum”). Plaintiff did not oppose County Defendants’ First Motion

to Dismiss but, instead, filed on August 16, 2020, an amended complaint without leave

of the court (Dkt. 12) (“reputed amended complaint” or “RAC”)). The reputed amended

complaint does not include any new defendants and is essentially identical to the

Complaint, but for additional factual allegations clarifying that the alleged medical

condition afflicting Plaintiff was benzodiazepine withdrawal, and a newly asserted claim

for failure to intervene. On August 27, 2020, County Defendants filed a motion to

dismiss the reputed amended complaint (Dkt. 14) (“County Defendants’ Second Motion

to Dismiss”), attaching the Declaration of [Assistant County Attorney] Jeremy C. Toth in

Support of Defendants’ Motion to Dismiss First Amended Complaint (Dkt. 14-1)

(“Second Toth Declaration”), with Exhibit A (Dkt. 14-2).

2 Unless otherwise indicated, all bracketed material has been added.

On August 30, 2020, Plaintiff filed a motion for leave to amend the Complaint

(Dkt. 16) (“Plaintiff’s Motion to Amend”), attaching four exhibits (Dkts. 16-1 through 16-

4), including a proposed amended complaint (Dkt. 16-1) (“proposed amended

complaint” or “PAC”). Plaintiff also filed on August 30, 2020, the Memorandum of Law

in Opposition to Defendants’ Motion to Dismiss (Dkt. 17) (Plaintiff’s First Response to

County Defendants”), attaching two additional exhibits (Dkts. 17-1 and 17-2). On

September 9, 2020, Defendant Chapin filed a motion to dismiss the Complaint and the

reputed amended complaint (Dkt. 19) (“Chapin’s Motion to Dismiss”), attaching the

Attorney Affidavit of Craig R. Watson, Esq. (Dkt. 19-1) (“First Watson Affidavit”), two

exhibits (Dkts. 19-2 and 19-3), and a Memorandum of Law (Dkt. 19-4) (“Chapin’s

Memorandum”).

On September 21, 2020, County Defendants filed the Declaration of [Assistant

County Attorney] Jeremy C. Toth in Opposition to Plaintiff’s Motion to Amend Complaint

(Dkt. 21) (“Third Toth Declaration”). On September 24, 2021, Defendant Chapin filed

the Attorney Declaration of Craig R. Watson (Dkt. 22) (“Second Watson Affidavit”),

attaching exhibits A through C (Dkts. 22-1 through 22-3). On September 30, 2020,

Plaintiff filed the Reply Declaration [of Matthew Albert, Esq.] for Plaintiff’s Motion to

Amend Her Complaint (Dkt. 23) (“Albert Declaration”). On October 10, 2020, Plaintiff

filed the Memorandum of Law in Opposition to Defendants’ Motion to Dismiss (Dkt. 24)

(“Plaintiff’s Second Response to County Defendants”). On October 27, 2020,

Defendant Chapin filed the Attorney Reply Declaration of Craig R. Watson, Esq. (Dkt.

25) (“Third Watson Affidavit”), and the Reply Memorandum of Law (Dkt. 25-1)

(“Chapin’s Reply”). Oral argument was deemed unnecessary.

Based on the following, County Defendants’ First Motion to Dismiss is

DISMISSED as moot; Defendants’ Second Motion to Dismiss is DISMISSED as moot;

Plaintiff’s Motion to Amend is GRANTED in part and DENIED in part; Defendant

Chapin’s Motion to Dismiss is DISMISSED as moot.

FACTS3

On January 24, 2018, Plaintiff Jessica Huber (“Plaintiff”), entered into the custody

of Defendants Erie County (“the County”), and Erie County Sheriff Timothy B. Howard

(“Howard”), when Plaintiff was arrested for a probation violation and transported to the

Erie County Holding Center (“ECHC”) in Buffalo, New York. Upon arriving at ECHC,

Plaintiff underwent an Intake Screening with Defendant Cynthia Muller, RN (“RN

Muller”), during which Plaintiff advised she was taking several prescriptions drugs for

depression, anxiety, and bipolar disorder including, inter alia, Klonopin,4 which Plaintiff

regularly took three times a day and took the drug that day. Plaintiff also provided a list

of her medications to Muller who then sent Plaintiff for a “detox evaluation” regarding

Klonopin. Later on January 24, 2018, Plaintiff underwent a Mental Health Assessment

and Admissions Screening at ECHC with Defendant Shannon Stevenson (“Stevenson”),

during which Plaintiff advised she had been prescribed Klonopin since 2018 and her

health would be negatively affected without the drug. On January 25, 2018, Plaintiff

underwent a detox evaluation at ECHC with Defendant Kristina Krtanjek, NP

3 Taken from the pleadings and motion papers filed in this action.

4 “Klonopin” is the brand name version of “clonazepam” which is a “benzodiazepine” drug (nervous

system depressant), and a controlled substance approved for treatment of panic and seizure disorders.

See Clonazepam (Klonopin), available at: https://www.nami.org/About-Mental-Illness/Treatments/Mental-

Health-Medications/Types-of-Medication/Clonazepam-{Klonopin) (last visited August 17, 2021). The

court, like the parties, uses these terms interchangeably based on the context.

(“Krtanjek”), who reviewed Plaintiff’s medical history and medications and then cleared

Plaintiff from detox without either arranging for Plaintiff to receive Klonopin as previously

prescribed or to wean Plaintiff off the medication. In the evening of January 25, 2018,

one Michael Carr, LPN (“Carr”),5 provided Plaintiff with Ibuprofen (nonsteroidal, anti-

inflammatory analgesic), but no other medications.

In the morning of January 26, 2018, Carr provided Plaintiff with additional

medications, including Minipress (blood pressure), Topiramate (anti-seizure), Risperdal

(antipsychotic medication for treatment of schizophrenia and bipolar disorder), and

Ibuprofen. In the evening of January 26, 2018, Plaintiff was administered additional

medications by Amy Prieur, LPN (“Prieur”),6 including Metoprolol Succinate ER (blood

pressure), Ibuprofen, CVS Omeprazole (gastroesophageal reflux disease or “GERD”),

Topiramate, and Welchol (high cholesterol). Other of Plaintiff’s previously prescribed

medications, including Clonazepam, Trintellix (antidepressant), Seroquel IR

(schizophrenia), Trazadone (antidepressant), Lyrica (fibromyalgia and neuropathy), and

Metoprolol ER (blood pressure), were discontinued. Also on January 26, 2018, Plaintiff

met with Defendant psychologist Erin Burch (“Dr. Burch”), to whom Plaintiff reported she

was in pain from fibromyalgia, was having migraines and difficulty sleeping, had a poor

appetite, and was having vague suicidal ideation, and also complained that she was not

being given all her prescribed medications. The focus, for purposes of this discussion,

is on the clonazepam Plaintiff was prescribed.

5 Carr is not a defendant to this action.

6 Prieur is not a defendant to this action.

On January 27, 2018, Plaintiff underwent a mental health evaluation at ECHC

with Defendant Cally Graham (“Graham”),7 to whom Plaintiff complained she was not

receiving all of her prescribed medications, advising she felt a “manic episode coming”

based on symptoms of feeling “on edge” and difficulty sleeping, which Plaintiff

recognized as benzodiazepine withdrawal based on a previous episode which left

Plaintiff in a catatonic state for five days. Complaint ¶ 24. Following the evaluation with

Graham, Plaintiff, while being escorted to ECHC’s “Constant Observation Unit,” became

lightheaded and collapsed. Plaintiff was found to be “largely unresponsive to medical

and security staff questions,” id. ¶ 26, yet responding registered nurse Defendant Kevin

Bugman (“Bugman”), allegedly kicked Plaintiff in the head and told her to “quit faking.”

Id. ¶ 27. Plaintiff was then transported by wheelchair to an examination at ECHC by

Defendant Krtanjek who advised Plaintiff to increase her fluids consumption and follow-

up as needed.

On January 28, 2018, Plaintiff underwent a mental health evaluation at ECHC

with Defendant Chrissy Scott (“Scott”),8 to whom Plaintiff complained her medications

were not being properly regulated by ECHC. Scott reported Plaintiff presented with a

depressed mood and flat affect, and stated she had much pain and was not sleeping, all

symptoms which Plaintiff alleges are known symptoms of benzodiazepine withdrawal.

On January 30, 2018, Plaintiff had a psychiatric medication consult at ECHC with

Defendant Tom Chapin, PNP (“Chapin”), who is employed by UPPI, not the County, and

whom Plaintiff informed of her history of bipolar disorder, anxiety, and depression, as

well as that Plaintiff had been treating with a psychiatrist and had manic episodes.

7 Graham’s position at ECHC is not described.

8 Scott’s position at ECHC is not in the record.

Chapin listed the medications Plaintiff was prescribed while at ECHC which did not

include Clonazepam.

On February 2, 2018, Plaintiff had a comprehensive suicide risk assessment at

ECHC with Graham who noted Plaintiff’s treatment for various mental health conditions

including bipolar. Although at the beginning of the assessment Plaintiff was coherent,

as the assessment progressed, Plaintiff reported being light-headed and did not know

where she was. Graham noted that Plaintiff was exaggerating her condition to feign

mental health and medical symptoms.

On February 3, 2018, Defendant Melissa Muldoon (“Muldoon”),9 made a

Constant Observation Progress Note at ECHC that Plaintiff presented as drowsy and

with very slow speech. When asked where she was, Plaintiff did not know and

presented with impaired judgment.

On February 4, 2018, Scott engaged in a Constant Observation Progress

interview at ECHC with Plaintiff, noting Plaintiff presented with poverty of speech,

reported not sleeping well, and was having panic attacks.

On February 6, 2018, Plaintiff was found on the floor of her ECHC cell after

falling off her bed. Plaintiff was unable to verbally respond and her pupils were dilated

and unresponsive bilaterally. Plaintiff was transported to ECHC’s Delta medical unit

where she had a seizure lasting an entire minute with full body jerking, urine

incontinence, and drooling. Plaintiff also was tachycardiac (rapid heart rate), with

depleted oxygen saturation levels. Nurse practitioner Jasmine Richardson

(“Richardson”)10 called for an ambulance and while awaiting its arrival, Plaintiff had

9 Muldoon’s position at ECHC is not in the record.

10 Richardson is not a defendant to this action.

another seizure lasting one minute and 45 seconds, her eyes were dilated, and Plaintiff

was unresponsive. Plaintiff was transported by ambulance to Erie County Medical

Center (“ECMC”), in Buffalo, New York, where she was admitted and remained

hospitalized until February 23, 2018.

While at ECMC, Plaintiff was reported as incontinent, nonverbal, cyanotic (bluish

discoloration of the skin and mucous membranes caused by depleted blood oxygen),

tachycardiac, and unresponsive. Plaintiff was intubated and placed in ECMC’s Trauma

Intensive Care Unit (“TICU”). Attending ECMC physician Harsha Yedlapati noted that

prior to being admitted to ECMC, Plaintiff had not taken Klonopin for three weeks and

that Plaintiff’s seizures were consistent with benzodiazepine withdrawal. ECMC

physician Mohammadreza Azadfard started Plaintiff on a medically managed detox

program to wean Plaintiff off clonazepam. On February 9, 2018, Plaintiff’s core body

temperature dropped and a warming blanket medical device was used to raise her

temperature, yet Plaintiff was minimally responsive, on a full ventilator, and in acute

respiratory failure with acute encephalopathy (brain disease, damage, or malfunction),

seizures, and presumed aspiration pneumonia (caused by breathing foreign objects into

the lungs or airways).

Plaintiff maintains that Defendants were deliberately indifferent to Plaintiff’s

medical condition, which included commonly known symptoms of benzodiazepine

withdrawal, and arrived, without any factual or medical reason, at the baseless

conclusion that Plaintiff was a malinger or was feigning psychiatric illness. Plaintiff

further maintains that but for numerous lifesaving treatments, Plaintiff would have died

from benzodiazepine withdrawal.

DISCUSSION

1. Motions to Dismiss

In the original Complaint, Plaintiff asserted four claims for relief including (1) a

§ 1983 claim for medical indifference against Defendants Dr. Burch, Stevenson, Scott,

Muldoon, Graham, Muller, Bugman, Krtanjek, and Chapin (together, “Medical

Defendants”)11 (“First Claim” or “medical indifference claim”); (2) a § 1983 claim against

Defendants County, Howard, and UPPI pursuant to Monell v. Dep't of Soc. Servs. of

City of N. Y., 436 U.S. 658, 690–92 (1978) (“Monell”) asserting liability for the alleged

unconstitutional action resulting from an official policy, practice, or custom, based on a

theory of respondeat superior (“Second Claim” or “Monell claim”); (3) a medical

malpractice claim under New York common law against the Medical Defendants (“Third

Claim” or “malpractice claim”); and (4) an § 1983 excessive force claim against

Defendant Bugman (“Fourth Claim” or “excessive force claim”). In the RAC, Plaintiff

named the same Defendants, asserted additional factual allegations and alleged a fifth

claim against the Medical Defendants for failing to intervene (“Fifth Claim” or “failure to

intervene claim”). The PAC is essentially identical to the RAC, asserting the same

claims against the same Defendants as in the RAC, but includes several additional

allegations, attaches two exhibits, and is redlined to indicate the changes from the

original Complaint. Such redlining is not included in the RAC. The two exhibits

attached to the PAC include the Civil Rights Division’s Investigation of the Erie County

Holding Center and the Erie County Correctional Facility issued by the United States

11 Unlike the other Medical Defendants, all of whom are alleged to be employees of Defendant County,

Complaint ¶¶ 5-12, Defendant Chapin is alleged to be an employee of Defendant UPPI, which is alleged

to be a New York non-profit corporation with whom the County contracted to provide medical care and

treatment to inmates at ECHC. Complaint ¶ 14.

Department of Justice on July 15, 2009 (Dkt. 16-3) (“Attorney General’s Report”), and

the Final Report of the New York State Commission of Correction: In the Matter of the

Special Investigation into the Care and Treatment Provided to India Cummings, an

inmate of the Erie County Holding Center, issued on June 26, 2018 (Dkt. 16-4)

(“Commission Report”) (together, “governmental investigative reports”).

County Defendants move to dismiss the original Complaint for failure to state a

claim as well as the reputed amended complaint both as filed too late to be filed as of

right pursuant to Fed.R.Civ.P. 15(a)(1), and, alternatively, for the same reasons County

Defendants assert in support of dismissing the original Complaint. Chapin moves to

dismiss the First and Fifth Claims in the reputed amended complaint, and to remand the

RAC’s Third Claim to state court. All three motions to dismiss, however, were rendered

moot once Plaintiff filed her motion for leave to file an amended complaint. See Wilson

v. Fabric Cellar, Inc., 2021 WL 2942354, at * 2 (W.D.N.Y. July 13, 2021) (“When the

proposed amendment requires leave of court, ‘the preferred course is to grant leave to

amend even if doing so renders moot the motion to dismiss, rather than granting the

motion to dismiss and rendering moot the motion for leave.’” (quoting Rheaume v.

Pallito, 2015 WL 7300790, at * 2 (D.Vt. Oct. 2015) (emphasis omitted) (quoting Roller

Brearing Co. v American Software, Inc., 570 F.Supp.2d 376, 384 (D.Conn. 2008)), and

citing Pure Country, Inc. v. Sigma Chi Fraternity, 312 F.3d 952, 956 (8th Cir. 2002)

(reversing district court’s denial of motion for leave to amend complaint and holding that

motion for leave rendered moot pending motion to dismiss, rather than vice versa))).

See also Pettaway v. Nat'l Recovery Sols., LLC, 955 F.3d 299, 303 (2d Cir. 2020)

(instructing that when a plaintiff moves to file an amended complaint while a motion to

dismiss is pending, a court “may either deny [the] pending motion to dismiss as moot or

consider the merits of the motion, analyzing the facts as alleged in the amended

pleading.” (citing Conforti v. Sunbelt Rentals, Inc., 201 F. Supp. 3d 278, 291 (E.D.N.Y.

2016))). Further, “[a]s a general matter, amendments to the pleadings are favored in

order to facilitate a resolution on the merits.” Goldin Assocs., L.L.C. v. Donaldson,

Lufkin & Jenrette Sec. Corp, 2003 WL 22218643, at *13 (S.D.N.Y. Sept. 25, 2003)

(citing Black Radio Network, Inc. v. NYNEX Corp., 44 F. Supp. 2d 565, 573 (S.D.N.Y.

1999)). Accordingly, County Defendants’ First Motion to Dismiss, County Defendants’

Second Motion to Dismiss, and Chapin’s Motion to Dismiss are DISMISSED as moot.

Further, because the RAC and PAC are essentially identical, County Defendants

filed papers indicating their arguments asserted in support of the Motions to Dismiss the

Complaint and the Reputed Amended Complaint should be construed in opposing

Plaintiff’s Motion to Amend. Third Toth Declaration ¶¶ 9-10. Defendant Chapin

acknowledges Plaintiff’s filing of the Motion to Amend renders the RAC a nullity, but

rather then requesting the court construe Chapin’s motion papers filed in support of

Chapin’s Motion to Dismiss as opposing Plaintiff’s Motion to Amend, requests that

should the court permit Plaintiff to file and serve the PAC, then the court should

consider Chapins arguments made in support of Chapin’s Motion to Dismiss as

asserted in support of dismissing the PAC See Second Watson Affidavit ¶¶ 15-16;

Third Watson Affidavit ¶ 10. Given that both County Defendants and Chapin recognize

the filing of Plaintiff’s Motion to Amend render the RAC a nullity, in the interest of judicial

economy, the court construes the arguments contained in the papers filed by the

various Defendants as asserted in opposition to Plaintiff’s Motion to Amend.

2. Motion to Amend

With the dismissal of the three motions to dismiss, only Plaintiff’s Motion to

Amend remains pending. Plaintiff’s Motion to Amend is governed by Fed.R.Civ.P. 15

(“Rule 15__”), which, as relevant, provides “[t]he court should freely give leave when

justice so requires.” Fed.R.Civ.P. 15(a)(2). See Foman v. Davis, 371 U.S. 178, 181

(1962) (leave to file an amended complaint “shall be freely given when justice so

requires.”). “[A]n amended pleading may be filed pursuant to Rule 15(a) where the new

allegations do not unduly prejudice an opponent, are not the result of undue delay or

bad faith, and are not futile.” Warren v. Goord, 2006 WL 1582385, at * 7 (W.D.N.Y. May

26, 2006). Further, “[a]n amendment to a pleading is futile if it could not withstand a

motion to dismiss under Rule 12(b)(6).” Dougherty v. Town of N. Hempstead Bd. of

Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002). Accordingly, the arguments advanced

by County Defendants and Chapin in support of their respective motions to dismiss are

relevant to Plaintiff’s Motion to Amend. See El-Shabazz v. State of New York

Committee on Character and Fitness for the Second Judicial Department, 428

Fed.Appx. 95, at *1 (July 5, 2011) (“‘When the plaintiff has submitted a proposed

amended complaint, the district judge may review that pleading for adequacy and need

not allow its filing if it does not state a claim upon which relief can be granted.’” (quoting

Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119, 123 (2d Cir. 1991)). In ruling on a

motion under Rule 12(b)(6), and, thus, in considering the plausibility of a proposed

amended pleading, the court may consider only “the facts as asserted within the four

corners of the complaint, the documents attached to the complaint as exhibits, and any

documents incorporated into the complaint by reference.” McCarthy v. Dun &

Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The court thus addresses in turn

each of the claims in the PAC.

A. Civil Rights Claim

Four of Plaintiff’s five claims seek damages for alleged violations of her

constitutional rights pursuant to 42 U.S.C. § 1983 (“§ 1983”), which imposes civil liability

upon persons who, acting under color of state law, deprive an individual of rights,

privileges, or immunities secured by the Constitution and laws of the United States.

Section 1983, however, is not itself a source of substantive rights but, rather, provides

the mechanism by which a plaintiff may seek vindication of federal rights elsewhere

conferred. Graham v. Connor, 490 U.S. 386, 393-94 (1989). Because Plaintiff was

detained at ECHC on a violation of probation charge, Plaintiff was a pretrial detainee at

all times relevant to her claims. Additionally, for relief under § 1983, a plaintiff must

establish the defendant was personally involved in the alleged deprivation. Warren v.

Pataki, 823 F.3d 125, 136 (2d Cir. 2016) (“To establish a section 1983 claim, ‘a plaintiff

must establish a given defendant's personal involvement in the claimed violation in

order to hold that defendant liable in his individual capacity.’” (quoting Patterson v.

County of Oneida, N.Y., 375 F.3d 206, 229 (2d Cir. 2004))).

Furthermore, although Defendant Chapin is not a County employee but, rather,

worked at ECHC pursuant to a contract between the County and UPPI, Chapin’s

employer, depending on the terms of the contract between the County and UPPI, which

is not in the record, Chapin may be liable as a state actor under the so-called “public

function test” if Chapin’s conduct included employing powers “traditionally the exclusive

prerogative of the State.” See Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982) (to be

considered a state actor under the public function test, the plaintiff must show the

private party used powers “traditionally the exclusive prerogative of the State.”).

Generally, “[t]he provision of medical care to incarcerated prisoners is a public function,

even if private physicians contract with the government to provide those services.”

Young v. Halle Hous. Assoc., L.P., 152 F.Supp.2d 355, 365 (S.D.N.Y. 2001). The

underlying rationale for this conclusion is that “[a]n inmate must rely on prison

authorities to treat his medical needs; if the authorities fail to do so, those needs will not

be met.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). Nevertheless, where a defendant

physician treats prison inmates, it is “the physician’s function within the state system,

not the precise terms of his employment, that determines whether his actions can fairly

be attributed to the State in a suit under § 1983.” Doe v. Torres, 2006 WL 290480, at *

9 (S.D.N.Y. Feb. 8, 2006). Although Chapin is a nurse practitioner, rather than a

physician, and provided medical services to Plaintiff at ECHC, rather than in a state

correctional facility, courts within the Second Circuit have applied the “public function

test” in circumstances similar to the instant case. See Burgess v. County of

Rennselaer, 2006 WL 3729750, at * 4 (N.D.N.Y. Dec. 18, 2006) (concluding defendant

nurse working at county jail pursuant to the county jail’s contract with the defendant’s

employer could be held liable under § 1983 as a state actor).

1. Deliberate Indifference

In the proposed amended complaint, Plaintiff claims each of the Medical

Defendants was deliberately indifferent to her serious medical needs when, despite

Plaintiff advising she had been regularly taking Clonazepam since 2016, and exhibiting

symptoms of benzodiazepine withdrawal, the Medical Defendants failed to take

seriously Plaintiff’s complaints that she was being denied her prescribed medication for

her mental health conditions resulting in Plaintiff experiencing life-threatening

benzodiazepine withdrawal. County Defendants argue the facts asserted in the

proposed amended complaint, even if true, fail to establish the requisite deliberate

indifference to find County Defendants liable for medical indifference to the serious

medical situation posed by Plaintiff’s benzodiazepine withdrawal. County Defendants’

Memorandum at 4-8. Defendant Chapin maintains this claim is insufficient because it

challenges Chapin’s exercise of medical judgment on a single occasion, e.g., the

January 30, 2018 psychiatric medication consultation, which can establish, at most,

negligence but cannot establish the deliberate indifference necessary to support the

claim. Chapin’s Memorandum at 5-9; Chapin’s Reply, at 2-4.

Because at the time of the events relative to this claim, Plaintiff was being held in

the ECHC as a pretrial detainee, her deliberate indifference claim is analyzed according

to the Fourteenth Amendment's Due Process Clause, rather than under the Eighth

Amendment's Cruel and Unusual Punishments Clause. See Darnell v. Pineiro, 849 F.3d

17, 29 (2d Cir. 2017) (recognizing unconstitutional conditions of confinement claims

brought by pretrial detainees are correctly analyzed under the Fourteenth Amendment);

Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009) (“[A] person detained prior to

conviction receives protection against mistreatment at the hands of prison officials

under the Due Process Clause of the . . . Fourteenth Amendment if held in state

custody.”), overruled on other grounds by Darnell, 849 F.3d at 35-36. This is because

“‘[p]retrial detainees have not been convicted of a crime and thus may not be punished

in any manner – neither cruelly and unusually or otherwise.’” Darnell, 849 F.3d at 29

(quoting Iqbal v. Hasty, 490 F.3d 143, 168 (2d Cir. 2007) (further citation and quotation

marks omitted)). In the instant case, the PAC does not fail to sufficiently establish the

requisite deliberate indifference required for a plausible Fourteenth Amendment

violation based on the benzodiazepine withdrawal Plaintiff endured as a result of

Medical Defendants’ alleged conduct.

To state a Fourteenth Amendment claim for medical indifference, a pretrial

detainee need plead only “facts ‘showing that she had a serious medical condition and

that it was met with deliberate indifference.’” Bruno v. City of Schenectady, 727

Fed.Appx. 717, 720 (2d Cir. 2018) (internal quotation marks and citation omitted). In

particular relevance here, the first prong of a deliberate indifference claim based on an

alleged denial of adequate medical treatment requires the plaintiff suffer from “‘a

condition of urgency, one that may produce death, degeneration, or extreme pain.’” Id.

(quoting Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005)). Here, Plaintiff’s

benzodiazepine withdrawal satisfies this prong for a Fourteenth Amendment deliberate

indifference claim. See Caiozzo, 581 F.3d at 72 (considering alcohol withdrawal a

condition of urgency); Pusateri v. City of Dunkirk, 2021 WL 3160768, at * (W.D.N.Y. July

27, 2021) (recognizing opiate withdrawal can present a condition of urgency); Stojcevski

v. County of Macomb, 2019 WL 4744432, at *12 (E.D.Mich. Sept. 30, 2019) (denying

summary judgment to defendant county jail officials who failed to properly treat

defendant inmate for benzodiazepine withdrawal). The second prong is “whether a

‘reasonable person’ would appreciate the risk to which the detainee was subjected.”

Bruno, 727 Fed.Appx. at 720 (quoting Darnell v. Pineiro, 849 F.3d 17, 29, 33-35 (2d Cir.

2017)). Toward this end, the PAC contains numerous allegations that Plaintiff

repeatedly advised each Medical Defendant she had been regularly taken

benzodiazepine, see, e.g., PAC ¶¶ 17-19 (alleging Plaintiff, during her Intake Screening

at ECHC on January 24, 2018, both told Muller of the prescription medications Plaintiff

took and provided Muller with a list of such medications which list included, inter alia,

Clonazepam), and that Plaintiff was observed by various Defendants with symptoms

Plaintiff maintains are commonly recognized as consistent with benzodiazepine

withdrawal. See, e.g., PAC ¶ 24 (while meeting with Dr. Burch on January 26, 2018,

Plaintiff complained of migraines, difficulty sleeping, poor appetite, and vague suicidal

ideation, that she was not being provided with her medications, and that she feared she

would going into benzodiazepine withdrawal), ¶ 25 (during January 27, 2018 mental

health evaluation with Graham, Plaintiff advised she sensed a “manic episode coming”),

and ¶ 29 (during January 28, 2018 mental health evaluation with Scott, Plaintiff was

noted to present with depressed mood, flat affect, was in pain, and not sleeping, and

Plaintiff advised she was undergoing benzodiazepine withdrawal because she had not

been provided with Clonazepam). Accordingly, the PAC contains sufficient factual

allegations plausibly establishing in accordance with Ashcroft v. Iqbal, 556 U.S. 662,

678-79 (2009) (requiring complaint state a claim with “facial plausibility” to survive

motion to dismiss), the circumstances confronting the Medical Defendants were

sufficient for a reasonable person to appreciate the risk to which Plaintiff was subjected

based on benzodiazepine withdrawal. Bruno, 727 Fed.Appx. at 720. The PAC thus

states a medical indifference claim against Medical Defendants based on Plaintiff's

benzodiazepine withdrawal. Plaintiff’s Motion to Amend is GRANTED with regard to

Plaintiff’s Fourteenth Amendment medical indifference claim.

2. Monell

Plaintiff asserts in the proposed amended complaint that Defendants County and

Howard12 engaged in widespread and persistent practice of denying inmates medical

care because other ECHC inmates have suffered medical episodes, PAC ¶¶ 83-85,

attaching as exhibits several reports indicating ECHC has been the subject of

investigations (Dkt. 16-2), by the United States Department of Justice (Dkt. 16-3), and

New York State Commission of Correction regarding the death of another inmate, one

India Cummings (“Cummings”) (Dkt. 16-4). In opposition to Plaintiff’s Motion to Amend,

County Defendants argue that the other inmates Plaintiff identifies in the proposed

amended complaint as also having been subjected to medical indifference while

incarcerated at ECHC did not endure any prescribed medication withdrawal, County

Defendants’ Memorandum at 10, and the governmental investigative reports on which

Plaintiff relies do not substantiate that County Defendants were acting pursuant to any

policy. Id. at 10-13.

Although a municipality cannot be held liable under § 1983 solely on a theory of

respondeat superior, a § 1983 claim may be brought against a municipality if the alleged

unconstitutional action was the result of an official policy, practice, or custom. Monell,

436 U.S. at 690–92. “[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). “[T]o

12 Plaintiff also asserts her Monell claim against UPPI which has not been served and has yet to appear in

this action. The court also notes Plaintiff refers to ECHC as a defendant in asserting the Monell claim,

see PAC ¶ 58, but ECHC is not named as a defendant in the caption, nor is there any indication that

ECHC was served. As such, ECHC also is not a defendant to this action. Moreover, ECHC is not a

suable entity for purposes of this action. See Wierzbic v. County of Erie, 2018 WL 550521, at *5

(W.D.N.Y. Jan. 25, 2018).

hold a city liable under § 1983 for the unconstitutional actions of its employees, a

plaintiff is required to plead and prove three elements: (1) an official policy or custom

that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.”

Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). There are four ways a plaintiff

can satisfy this requirement including alleging 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. Mar. 30, 2010) (internal quotation marks

and citations omitted). Moreover, there must be a causal link between the policy and

the alleged injury. Batista, 702 F.2d at 397. “[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.” DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) (internal

quotation marks and citation omitted). In the instant case, Plaintiff does not seek to

allege any formal policy officially endorsed by the municipality, or actions taken by

government officials responsible for establishing the municipal policies that caused the

particular deprivation in question. Nevertheless, insofar as Plaintiff seeks to allege a

Monell claim based on 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 based on a failure to train or supervise, the proposed

amended complaint is sufficient.

Preliminarily, insofar as Plaintiff seeks to assert a Monell claim against Defendant

Howard in his official capacity as Erie County Sheriff, the claim is actually against the

Erie County Sheriff’s office. Monell, 436 U.S. at 690, n. 55 (holding “local government

officials sued in their official capacities are ‘persons’ under § 1983 in those cases in

which, as here, a local government would be suable in its own name.”). New York law,

however, provides that “departments which are merely administrative arms of a

municipality, do not have a legal identity separate and apart from the municipality and

cannot sue or be sued.” Wierzbic v. County of Erie, 2018 WL 550521, at *5 (W.D.N.Y.

Jan. 25, 2018) (dismissing claims against Erie County Sheriff’s Department and village

police department because “they are sub-units or agencies of their municipalities and

not subject to suit) (citing cases). Accordingly, Plaintiff cannot pursue a Monell claim

against Defendant Howard in his official capacity as Erie County Sheriff.

With regard to Defendant County, a Monell claim based on a consistent and

widespread, albeit not expressly authorized, practice so as to constitute a custom or

usage of which a supervising policy-maker must have been aware is established

“‘where a local government is faced with a pattern of misconduct and does nothing,

compelling the conclusion that the local government has acquiesced in or tacitly

authorized its subordinates’ unlawful actions.’” Triano v. Town of Harrison, 895

F.Supp.2d 526, 534 (S.D.N.Y. 2012) (quoting Reynolds v. Giuliani, 506 F.3d 183, 192

(2d Cir. 2007) (citation omitted)). At this stage of the action, the court does not consider

the weight of the two reports Plaintiff attaches to the proposed amended complaint in

support of a Monell claim based on a wide-spread practice; rather, the governmental

investigative reports, along with the proposed amended complaint’s factual allegations

that despite Plaintiff’s repeatedly advising the ECHC’s medical staff, including those

assigned to provide psychiatric care, of Plaintiff’s history of psychiatric illness, and that

Plaintiff was regularly taking benzodiazepine, and within a couple of days after not

receiving benzodiazepine began exhibiting what Plaintiff maintains are common

symptoms of benzodiazepine withdrawal, are sufficient to state a Monell claim based on

a wide-spread practice. See Green v. Harris, 2018 WL 4300021, at * 1-2 (W.D.N.Y.

Sept. 10, 2018) (denying objections to decision granting inmate plaintiff leave to file an

amended complaint asserting a Monell claim for a pattern and practice of deliberate

indifference to serious medical needs at ECHC supported by the same Attorney

General Report). Significantly, both the Attorney General Report and the Commission

Report attached as exhibits to the proposed amended complaint are the results of

investigations into, inter alia, allegations of deficient medical and mental health care

provided at the ECHC.

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

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

Supreme 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 v. 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).

Insofar as Plaintiff also seeks to allege Defendants County and Howard failed to

train or supervise the Medical Defendants, PAC ¶ 62, “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, however, 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.”) (Brennan, J.,

concurring); Iacovangelo v. Corr. Med. Care, Inc., 624 F. App'x 10, 14 (2d Cir. 2015)

(affirming a dismissal of a plaintiff's Monell claim for deliberate indifference to serious

medical needs because “the amended complaint provides only one additional example

of a similar incident”); Jones v. Town of E. Haven, 691 F.3d 72, 85 (2d Cir. 2012)

(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 not based on a single

incident but, rather, on a series of incidents, she has plausibly pleaded that Defendants

had “notice that [the] course of training [and supervision were] deficient[.]” Connick, 563

U.S. at 1360. In the instant case, similar to the alleged widespread practice, the

governmental investigations upon which Plaintiff relies in the proposed amended

complaint are directed to allegations that the medical and mental health care was so

deficient as to give rise to Plaintiff’s claim that those Medical Defendants delivering such

care were not adequately trained or supervised.

Accordingly, Plaintiff’s Motion to Amend to assert claims under Monell based on

a widespread practice, as well as on failure to train or supervise is GRANTED.

3. Excessive Force

In the proposed amended complaint, Plaintiff seeks to allege that following her

mental health evaluation with Graham on January 27, 2018, after collapsing while being

transported back to her cell, Defendant Bugman kicked Plaintiff in the head and told her

to “quit faking,” PAC ¶¶ 25-27, thus subjecting Plaintiff to excessive force in violation of

Plaintiff’s Fourth Amendment right to be free from unreasonable seizure. Id. ¶¶ 75-80.

In opposing this claim, County Defendants argue the claim is nonsensical because

Bugman is not law enforcement personnel, but a nurse. County Defendants’

Memorandum at 24. Plaintiff argues Bugman’s employment position with the County is

irrelevant to Plaintiff’s excessive force claim. Plaintiff’s First Response to County

Defendants at 10; Plaintiff’s Second Response to County Defendants at 10. County

Defendants do not argue in further opposition to this claim.

Here, the alleged kick to Plaintiff’s head allegedly delivered by Defendant

Bugman did not occur in connection with any arrest, seizure, or stop. See Graham v.

Connor, 490 U.S. 386, 388 (1989) (standard governing constitutional excessive-force

claims against government officials in “the course of making an arrest, investigatory

stop, or other seizure” of a person is the Fourth Amendment's objective reasonableness

standard). Plaintiff does not reference, and the court’s research does not reveal, any

case holding or suggesting a defendant, like Bugman whose job does not require

arresting, seizing, or stopping another, may be liable for a constitutional violation based

on conduct that otherwise establishes only an assault and battery claim under state

common law. Compare Lewis v. Mollette, 752 F.Supp.2d 233 (N.D.N.Y. 2010)

(denying summary judgment on Fourth Amendment excessive force claim asserted

against defendant, employed as a “Youth Division Aide” responsible for maintaining

safety and security within youth detention facility and authorized to use, when

necessary, a “Physical Restraint Technique” (“PRT”), to prevent harm to an inmate or

others, based on defendant’s use of PRT when the circumstances failed to establish

any need for use of the PRT to subdue the plaintiff).13 Plaintiff does not assert she was

arrested or seized by Bugman when Bugman allegedly kicked Plaintiff in the head and,

as such, this claim falls outside the protection of the Fourth Amendment. See Tierney v.

Davidson, 133 F.3d 189, 199 (2d Cir. 1998) (vacating district court’s denial of summary

judgment to defendants on plaintiff’s Fourth Amendment excessive force claims where

the plaintiffs failed to assert either that they were arrested or seized when the

defendants allegedly used the excessive force).

Plaintiff’s Motion to Amend is thus DENIED as to the excessive force claim

against Defendant Bugman.

4. Failure to Intervene

The proposed amended complaint includes a claim that the Medical Defendants

failed to intervene in the inadequate medical care Plaintiff allegedly received so as to

prevent harm to Plaintiff. PAC ¶¶ 82-84. In opposing this proposed claim, County

Defendants maintain that assuming, arguendo, the remaining claims are dismissed, the

court will have held there is no other cognizable claim such there is no unconstitutional

incident with which County Defendants can be held liable failure to intervene. Second

Toth Affidavit ¶ 10; Third Toth Affidavit ¶ 10. Defendant Chapin argues the allegations

Plaintiff seeks to assert against Chapin who encountered Plaintiff on only one occasion,

i.e., a January 30, 2018 psychiatric medication consultation, are insufficient to state a

plausible claim for failure to intervene against him. Chapin’s Memorandum at 6, 9.

13 The court notes that Plaintiff did not assert the Fourteenth Amendment as a basis for this claim. See

Hemphill v. Schott, 141 F.3d 412, 418 (2d Cir. 1998) (“[O]utside the context of an arrest, a plaintiff may

make claims of excessive force under [section] 1983 under the Due Process Clause of the Fourteenth

Amendment.”). See also Tierney v. Davidson, 133 F.3d 189, 199 (2d Cir. 1998) (same).

“‘It is widely recognized that all law enforcement officials have an affirmative duty

to intervene to protect the constitutional rights of citizens from infringement by other law

enforcement officers in their presence.’” Terebesi v. Torreso, 764 F.3d 217, 243 (2d

Cir. 2014) (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)). “‘An officer

who fails to intercede is liable for the preventable harm caused by the actions of the

other officers where that officer observes or has reason to know: (1) that excessive

force is being used; (2) that a citizen has been unjustifiably arrested; or (3) that any

constitutional violation has been committed by a law enforcement official.’” Id. (quoting

Anderson, 17 F.3d at 557). “To establish such a claim of failure to intervene, a plaintiff

must prove the following four elements: (1) that a constitutional violation was being

committed against the plaintiff; (2) that the officer knew, or deliberately ignored, the fact

that the constitutional violation was going to be, or was being, committed; (3) that the

defendant had a reasonable opportunity to intervene and prevent the harm; and (4) that

the defendant did not take reasonable steps to intervene.” Thomas v. City of Troy, 293

F. Supp.3d 282, 296 (N.D.N.Y. 2018). In the instant case, should Plaintiff be able to

establish her Fourth Amendment deliberate indifference claim against any of the

Medical Defendants, then the failure to intervene claim asserted in the proposed

amended complaint is plausible. See Krzeminski v. City of Buffalo, 2018 WL 10335659,

at * 6 (W.D.N.Y. Dec 10, 2018) (recommending plaintiff’s failure to intervene claims not

be dismissed where triable issues of fact precluded summary judgment on the plaintiff’s

related claims of Constitutional violations), report and recommendation adopted, 2019

WL 5956368 (W.D.N.Y. Nov. 13, 2019). Here, Defendants are alleged to have failed to

intervene with the failure to provide adequate medical care to Plaintiff, particularly with

regard to her benzodiazepine withdrawal.14 In particular, here, the allegations in the

proposed amended complaint describe a series of medical examination and

consultations at which Plaintiff advised the various Medical Defendants of her significant

psychiatric history and listed numerous medications, including benzodiazepine, with

Plaintiff later complaining of symptoms she maintains are consistent with

benzodiazepine withdrawal while also complaining she was not receiving any

benzodiazepine despite regularly taking such medication since it was first prescribed in

2016 including earlier in the day she was arrested on January 24, 2018.

Plaintiff’s Motion to Amend is GRANTED with regard to the Medical Defendants’

failure to intervene claim.

B. New York Common Law Medical Malpractice

The proposed amended complaint’s Fourth Claim seeks to assert a medical

malpractice claim under New York common law against all Defendants. PAC ¶¶ 68-81.

In opposing Plaintiff’s Motion to Amend, County Defendants argue that because

pursuant to N.Y. Gen. Mun. Law § 50-i[1] (“§ 50-i[1]), claims against a municipality and

its employees must be commenced within one year and 90 days of the events on which

such claims are premised, such claim is time-barred because the alleged negligence

occurred on February 6, 2018, yet the action was not commenced until July 9, 2020.

County Defendants’ Memorandum at 13. County Defendants further argue Plaintiff

14 The court notes that although § 1983 claims for failure to intervene are generally predicated on

allegations that defendant law enforcement or corrections officers failed to intervene against the use of

excessive force in the plaintiff’s arrest or seizure or to protect the plaintiff from physical harm by another

inmate, courts within the Second Circuit have recognized failure to intervene claims in the context of

alleged deliberate indifference to the plaintiff’s serious medical needs. See, e.g., Bernier v. Carter, 2020

WL 2092481, at * 5 (N.D.N.Y. May 1, 2020) (rejecting recommendation that summary judgment be

granted in favor of defendant who allegedly failed to provide the inmate plaintiff with adequate medical

care).

failed to serve timely serve a Notice of Claim pursuant to N.Y. Gen. Mun. Law § 50-e.

Id. Defendant Chapin argues that with the presumed dismissal of Plaintiff’s First and

Fifth Claims, no other federal claims will remain in the action such that the court should

decline to exercise supplemental jurisdiction over the medical malpractice claim.

Chapin’s Memorandum at 10-12; Chapin’s Reply at 4-5. Alternatively, Chapin maintains

Plaintiff’s medical malpractice claim is sufficiently distinct from the proposed amended

complaint’s other claims such that the medical malpractice claim is not part of the same

case or controversy as required to support supplemental jurisdiction. Id. In opposition

to County Defendants, Plaintiff argues that naming individual municipal employees in a

notice of claim is not a condition precedent to joining such defendants in the action.

Plaintiff’s First Response to County Defendants at 9; Plaintiff’s Second Response to

County Defendants at 9. Plaintiff further maintains that as of March 12, 2020, the

statute of limitations was tolled by Executive Order § 202.815 in light of the COVID-19

pandemic. Id. Plaintiff did not separately respond to Defendant Chapin’s arguments.

It is undisputed that Plaintiff claim to have served County Defendants with a

Notice of Claim as required by N.Y. Gen. Mun. Law § 50-e. Service of a Notice of Claim

is a prerequisite to Plaintiff’s state law claims against municipalities and their officers.

N.Y. County Law § 52[1]. Regardless of whether Plaintiff is correct in asserting that a

Notice of Claim need not name individual defendants, Plaintiff’s First Response to

County Defendants at 9; Plaintiff’s Second Response to County Defendants at 9, a

Notice of Claim must be served “within ninety days after the claim arises. . . .” N.Y.

Gen. Mun. Law § 50-e[1](a). Because the final factual allegation involving the County

15 Plaintiff incorrectly refers to the Executive Order as “202.1.”

Defendants occurred on February 6, 2018, the Notice of Claim was required to be filed

by May 6, 2018, and Plaintiff’s failure to do so is fatal to her medical malpractice claims

against all County Defendants. See Davis v. New York, 342 N.E.2d 516, 517 (N.Y.

1975) (affirming appellate court’s dismissal of action against municipality for failing to

comply with Notice of Claim requirements under N.Y. Gen. Mun. Law §§ 50-e and 50-i).

Accordingly, the court need not reach Plaintiff’s argument that the one year and 90-day

limitations period applicable to Plaintiff’s medical malpractice claim against the County

Defendants was tolled by Executive Order 202.8.

With regard to Defendant Chapin’s16 argument that the court should refrain from

exercising supplemental jurisdiction over the medical malpractice claim, such argument

is without merit insofar as it is predicated on the presumption that the court would find

the proposed amended complaint fails to adequately allege a Fourth Amendment

deliberate indifference claim or a failure to intervene claim against Chapin. Nor is there

any merit to Chapin’s alternative argument that the deliberate indifference claim

asserted against him is too remote from the federal claims to support the exercise of

supplemental jurisdiction; rather a plain reading of the proposed amended complaint’s

allegations establishes the same claimed facts, e.g., that Plaintiff suffered sustained

medical problems because of the alleged unlawful benzodiazepine withdrawal, are

alleged in support of both the federal claims and the New York common law medical

malpractice claim.

1616 New York’s Notice of Claim provision does not apply to Chapin who is not a County employee. See

Merrimack Mutual Fire Ins. Co., v. Long Island Power Authority, 41 N.Y.S3d 44, 47 (2d Dept. 2016)

(observing defendant electrical power company, as a private entity, was not subject to New York’s Notice

of Claim provision, § 50-e).

Insofar as Plaintiff’s Motion to Amend seeks to assert medical malpractice, the

motion is DENIED as to the County Defendants and is GRANTED as to Defendant

Chapin.

CONCLUSION

Based on the foregoing, County Defendants’ First Motion to Dismiss (Dkt. 6) is

DISMISSED as moot; Defendants’ Second Motion to Dismiss (Dkt. 14) is DISMISSED

as moot; Plaintiff’s Motion to Amend (Dkt. 16) is GRANTED in part and DENIED;

Defendant Chapin’s Motion to Dismiss (Dkt. 19) is DISMISSED as moot. The amended

complaint, amended in accordance with this Decision and Order (Dkt. 16-1) should be

filed within ten (10) days of receipt of this Decision and Order, following which the

matter will be scheduled for a conference pursuant to Fed.R.Civ.P. 16(b).

SO ORDERED.

/s/ Leslie G. Foschio

______________________________________

LESLIE G. FOSCHIO

UNITED STATES MAGISTRATE JUDGE

DATED: August 17th, 2021

Buffalo, New York