Busch v. Howard

UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT OF NEW YORK

JAMES BUSCH, )

)

Plaintiff, )

)

V. )

)

COUNTY OF ERIE, )

GRACE MOKA, RN, )

JESSICA HALL, NP, ) Case No. 1:20-cv-01515

MIKE MCBRIDE, LPN, )

JULIA DIBIASE-JOHNSTON, RN, )

LYDIA TORRES, RN, )

ALLISON PARKER, }

HEIDI CORNELL, NP, )

DEBRA WESTFIELD, RN, )

JOHN DOES 1-19, )

SHC SERVICES, INC., and )

JOHN DOES 1-10, )

)

Defendants. )

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS

(Doc. 24)

Plaintiff James Busch brings this suit against Defendants County of Erie; Grace

Moka, RN; Jessica Hall, NP; Mike McBride, LPN; J ulia DiBiase-Johnston, RN; Lydia

Torres, RN; Allison Parker; Heidi Cornell, NP; Debra Westfield, RN;! John Does 1-10,

intended to be the individuals/officers responsible for supervising the Plaintiff (the “J ohn

Doe Deputies”); SHC Services, Inc.; and John Does 1-10, intended to be the

individuals/medical professionals responsible for providing medical care to Plaintiff

while he was incarcerated (the “John Doe Medical Professionals”). Plaintiff's claims

1 Defendants Moka, Hall, McBride, DiBiase-Johnston, Torres, Parker, Cornell, and Westfield are

named in both their individual and official capacities.

arise from his contraction of Hepatitis A? while at the Erie County Holding Center and

the Erie County Correctional Facility and Defendants’ alleged deliberate indifference in

providing him care in response to an allegedly known Hepatitis A outbreak at those

facilities.

On July 13, 2021, the court granted in part and denied in part Defendants’? first

motion for judgment on the pleadings, dismissing Plaintiff's negligence claim against

County of Erie to the extent that claim is based on respondeat superior, Plaintiff's 42

U.S.C. § 1983 claim against all defendants except SHC Services, Inc.; Plaintiff’ s

respondeat superior and vicarious liability claim; and all claims against Erie County

Holding Center, Erie County Correctional Facility, and the Erie County Sheriff's

Department. The court granted Plaintiff leave to amend.

On July 23, 2021, Plaintiff filed a three-count Amended Complaint, alleging

negligence (Count I); violations of 42 U.S.C. § 1983 (Count IT); and conspiracy to

deprive him of his constitutional rights (Count III). Pending before the court is the

Moving Defendants’* second motion for judgment on the pleadings (Doc, 24.) Pursuant

to a stipulated extension of time to respond, Plaintiff opposed the motion on December

21, 2021 (Doc. 28). The Moving Defendants did not file a reply.

Plaintiff is represented by Blake Joseph Zaccagnino, Esq. The Moving Defendants

are represented by Anthony B. Targia, Esq. SHC Services, Inc. is represented by Jason T.

Britt, Esq., and Julie M. Bargnesi, Esq.

L Allegations in the Amended Complaint.

Plaintiff is a resident of the State of New York. Beginning on August 8, 2019,

Plaintiff was in custody and under the supervision of Defendants and housed in the Erie

2 Plaintiff alleges that “[u]pon information and belief, he was diagnosed with Hepatitis A.” (Doc,

17 at 10, § 36.)

3 Plaintiff’s original complaint named Defendants County of Erie, John Doe Deputies, SHC

Services, Inc., and John Doe Medical Professionals. It also named other parties who have since

been dismissed.

4 Ajl Defendants except SHC Services, Inc. join in the pending motion, Defendant SHC Services,

Inc, also did not join in the first motion for judgment on the pleadings.

County Holding Center and the Erie County Correctional Facility, which are controlled

by County of Erie. Plaintiff does not allege whether he was incarcerated pre-trial or post-

conviction. Defendant SHC Services, Inc. is alleged to be a foreign corporation

responsible for providing medical care to Plaintiff while he was incarcerated. Defendants

Moka, Hall, McBride, DiBiase-J ohnston, Torres, Parker, Cornell, and Westfield are

allegedly employees of County of Erie and/or SHC Services, Inc.

Plaintiff claims that in 2019, while he was in the Erie County Holding Center and

the Erie County Correctional Facility, there was a known Hepatitis A outbreak at each

facility. According to an October 8, 2019 press release from the Erie County Department

of Health, symptoms of Hepatitis A include fatigue, abdominal pain and discomfort, low-

grade fever, dark urine, and yellowing of the skin and eyes. The onset of symptoms

typically appears between fifteen and fifty days following exposure,

During the last two weeks of October 2019, Plaintiff began to complain of

symptoms associated with Hepatitis A, including fatigue, abdominal pain and discomfort,

a fever, dark urine, and yellowing of the skin and eyes. Plaintiff alleges that between

October 15, 2019 and October 23, 2019, he reported his symptoms to Defendants Moka,

Hall, McBride, DiBiase-Johnston, Torres, Parker, and Corneil and was evaluated by

Defendant Westfield for his symptoms, yet “[h]is Hepatitis went undiagnosed, untreated,

and his symptoms and condition worsened, causing him pain and injury.” (Doe. 17 at 21-

22, 70-76). Plaintiff claims he “made other complaints of a similar nature” to J ohn

Doe Deputies and John Doe Medical Professionals, Jd. at 22, 477.

Plaintiff alleges that, in response to his complaints, “[h]e was told that he was

dehydrated” and “to drink water and to take Tylenol.” Jd. at 7, | 24. Following his initial

report of symptoms, his condition worsened, He reported his worsening symptoms to

Defendants and told them he needed to go to the emergency room. “His request was

denied.” Jd. at 7, 425.

On October 23, 2019, Plaintiff was hospitalized at the Erie County Medical Center

and, upon information and belief, was diagnosed with Hepatitis A. Plaintiff remained in

the hospital until November 1, 2019. He alleges that he unknowingly contracted the virus

from objects, food, or drinks provided by Defendants which were “contaminated by stool

from an infected person[.]” Jd. at 8, § 26. During his hospitalization, upon information

and belief, Plaintiff was interviewed by a representative from the Erie County

Department of Health, who disclosed that the Hepatitis A outbreak was known to

Defendants prior to Plaintiff's reports of symptoms. Plaintiff further alleges that he

sustained “severe and permanent injuries” as a result of Defendants’ conduct and “will

continue to incur medical . . . expenses related to his care, treatment and attempted

cure[.]” Jd, at 10, 937. As a result of his injuries, he alleges his earning capacity has been

impaired.

In Count I, Plaintiff alleges that while he was incarcerated, Defendants negligently

failed to provide him with adequate medica! and mental health care by, among other

things, failing to properly supervise and observe him; improperly screening and

evaluating his risk; allowing untrained employees to screen inmates for risk of injury; and

negligently hiring, training, supervising, and retaining employees.

In Count II, he asserts that Defendants violated 42 U,S.C. § 1983 by failing to

adequately treat him and by delaying his medical care. He further asserts a Monell claim

against County of Erie and SHC Services, Inc. for their alleged custom or policy of

allowing unsanitary conditions and failing to provide adequate treatment.

In Count III, Plaintiff asserts that Defendants conspired “together with their

agents, servants and/or employees .. . to undertake a course of conduct that violated [his]

civil rights[.]” (Doc. 17 at 39, { 107.) He requests punitive damages on all counts based

on Defendants’ alleged deliberate indifference and malice toward him.

Il, Conclusions of Law and Analysis.

The Moving Defendants seek dismissal of Count Il because Plaintiff's allegations

are conclusory and fail to plausibly state a claim. In addition, the Moving Defendants

seek dismissal of all negligence claims against County of Erie based on a theory of

respondeat superior; all negligence claims under § 1983; and Monell claims against

County of Erie. The Moving Defendants argue these claims must be dismissed as res

judicata because of the court’s earlier dismissal of them without prejudice but also

incorporate the arguments for their dismissal made in their briefing of their first motion

for judgment on the pleadings. As Plaintiff correctly points out, a dismissal without

prejudice does not have preclusive effect. See Camarano v. Irvin, 98 F.3d 44, 47 (2d Cir,

1996) (“It is well established that a dismissal without prejudice has no res judicata effect

on a subsequent claim.”).

The Moving Defendants argue that all claims against the “Erie County Sheriff's

Office[], Erie County Correctional Facility, Erie County Holding Center, and Timothy B

Howard and Thomas Dina, as Erie County Sheriff and Superintendent of Jails{,]

respectively, must be dismissed as outside the applicable limitations period.” (Doc, 24-2

at 2.) Because those persons are not named as defendants in the Amended Complaint, the

Moving Defendants’ motion to dismiss claims against them based on the statute of

limitations is DENIED AS MOOT.

“The standard for granting a Rule 12(c) motion for judgment on the pleadings is

identical to that for granting a Rule 12(6)(6) motion for failure to state a claim.” Lynch v.

City of New York, 952 F.3d 67, 75 (2d Cir. 2020) (alterations adopted) (internal quotation

marks and citation omitted). 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 “nudge[] [his] 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.” Jqbal, 556 U.S. at 678, The court does not “weigh the

evidence” or “evaluate the likelihood” that a plaintiffs claims will prevail. Christiansen

y. Omnicom Grp., Inc., 852 F.3d 195, 201 (2d Cir. 2017).

A. Whether Phaintiff’s § 1983 Claims Against the Individual Defendants

Should Be Dismissed.

The Moving Defendants seck dismissal of Plaintiff's § 1983 claims against the

individually named health care personnel, Defendants Moka, Hall, McBride, DiBiase-

Johnston, Torres, Parker, Cornell, and Westfield, because Plaintiff has not sufficiently

alleged their personal involvement ‘na constitutional violation. Plaintiff's § 1983 claim

alleges a failure to treat in violation of his Eighth and Fourteenth Amendment rights

against each of these Defendants. “A pretrial detainee’s claims of unconstitutional

conditions of confinement are governed by the Due Process Clause of the Fourteenth

Amendment, rather than the Cruel and Unusual Punishments Clause of the Eight

Amendment.” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). However, because

Plaintiff does not allege whether he was a pretrial detainee or detained following a

conviction, the court will analyze his § 1983 claim under both standards.

The Eighth and Fourteenth Amendments forbid “deliberate indifference to serious

medical needs of prisoners[.]” Spavone v. New York State Dep’t of Corr. Servs., 719 F.3d

127, 138 (2d Cir. 2013) (internal quotation marks omitted) (quoting Estelle v. Gamble,

429 U.S. 97, 104 (1976)); see also Davis v. Cnty. of Nassau, 355 F. Supp. 2d 668, 674

(E.D.N.Y. 2005) (“The Fourteenth Amendment has been held to afford pretrial detainees

at least as much protection from cruel detention conditions as the Eighth Amendment

affords postconviction prisoners from cruel punishment.”’).

To state a claim under the Eighth Amendment based on deliberate indifference, a

plaintiff must plead: “(a) conditions of confinement that objectively pose an unreasonable

risk of serious harm to their current or future health, and (b) that the defendant acted with

‘deliberate indifference.’” Vega v. Semple, 963 F.3d 259, 273 (2d Cir. 2020) (quoting

Farmer y. Brennan, 511 U.S. 825, 834 (1994)). Deliberate indifference under the Eighth

Amendment means the official must “know| ] of and disregard[ ] an excessive risk to

inmate health or safety; the official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists, and he must also draw the

inference.” Farmer, 511 U.S. at 837.

To state a claim of deliberate indifference under the Due Process Clause of the

Fourteenth Amendment, a plaintiff must allege:

(a) conditions that objectively pose an unreasonable risk of serious damage

to ... health; and (b) 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.

Vega, 963 at 273-74 (internal footnote, citations, and quotation marks omitted) (alteration

and emphasis in original). Under the Fourteenth Amendment, deliberate indifference □□□

said to be defined objectively.” /d. at 274.

In his Amended Complaint, Plaintiff alleges that in the last two weeks of October

2019 he reported symptoms of fatigue, abdominal pain and discomfort, fever, dark urine,

and yellowing of his skin and eyes. After his initial report, he alleges his symptoms

worsened, and he told Defendants that he needed to go to the emergency room but was

denied appropriate care. Ultimately, he was hospitalized for his symptoms for

approximately one week. Plaintiff alleges, upon information and belief, that Defendants

knew about a Hepatitis A outbreak and did nothing to prevent his exposure to it. These

allegations are sufficient to plausibly plead a constitutional violation that Defendants

deliberately disregarded the serious risks of harm that the Hepatitis A outbreak posed to

Plaintiff's health and well-being.

In order to allege a violation under § 1983 against an individual defendant, a

plaintiff must further plausibly allege the defendant’s personal involvement in the

constitutional violation. See Darby v. Greenman, 14 F.4th 124, 130 (2d Cir. 2021) ([The

plaintiff] fails to state a [§ 1983] claim against the [ djefendants because he does not

allege any ‘personal involvement in alleged constitutional deprivations.’”) (alteration

adopted) (quoting Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)). The Second

Circuit has held that “personal involvement” under § 1983 means “direct participation, or

failure to remedy the alleged wrong after learning of it, or creation of a policy or custom

under which unconstitutional practices occurred, or gross negligence in managing

subordinates.” Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996).

Plaintiff alleges that between October 15, 2019 and October 23, 2019, he

“reported” his symptoms to Defendants Moka, Hall, McBride, DiBiase-J ohnston, Torres,

Parker, and Cornell and “was evaluated by” Defendant Westfield for his symptoms, yet

Hepatitis went undiagnosed, untreated, and his symptoms and condition worsened,

causing him pain and injury.” (Doc. 17 at 21-22, 49 70-76). Plaintiff claims he “made

other complaints of a similar nature” to J ohn Doe Deputies and John Doe Medical

Professionals. Jd. at 22, 477. Plaintiff asserts these factual allegations “showf{] that the

individual Defendants deliberately disregarded the serious risk of harm that Hepatitis A

posed to Plaintiff and his well-being.” Jd. at 479.

The Moving Defendants argue that Plaintiff does not allege any “unlawful conduct

by any individually named [D]efendant” but only that “Plaintiff received medical care

and treatment from all the individually named correctional health professionals in

response to various sick call requests made by the Plaintiff” (Doc. 24-2 at 5.) The

Moving Defendants contend that the only conduct alleged is that the individual

Defendants “rendered medical care and treatment[,}” id. at 4-5, and negligence or

medical malpractice are not viable § 1983 claims.

- “Tt is well-established that mere disagreement over the proper treatment does not

create a constitutional claim... . Moreover, negligence, even if it constitutes medical

malpractice, does not, without more, engender a constitutional claim,” Chance v.

Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (citations omitted). However, “certain

instances of medical malpractice may rise to the level of deliberate indifference, namely,

when the malpractice involves culpable recklessness, i.e., an act or a failure to act by the

prison doctor that evinces a conscious disregard of a substantial risk of serious harm.” □□□

(internal quotation marks and citations omitted). “In certain instances, a physician may be

deliberately indifferent if he or she consciously chooses ‘an easier and less efficacious’

treatment plan.” Jd. (quoting Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974)).

“Whether a course of treatment was the product of sound medical judgment, negligence,

ot deliberate indifference depends on the facts of the case.” Id.

At this juncture, the court cannot weigh the evidence to determine whether the

individual Defendants’ acts or omissions were reasonable, negligent, or rose to the level

of deliberate indifference. Plaintiff has alleged that each individual Defendant knew there

was a Hepatitis A outbreak, was personally involved in Plaintiff's treatment and care,

knew Plaintiff was experiencing severe symptoms consistent with Hepatitis A, and yet

pursued a course of treatment of oral hydration and over-the-counter pain medication for

over a week when more intensive treatment was necessary. Although Plaintiff does not

allege that the individual Defendants “were personally involved in any deliberate delay of

treatment or failure to provide medical care to Plaintiff,” Brown v. F ischer, 2018 WL

4177935, at *4 (W.D.N.Y. Aug. 29, 2018), at the pleading stage, it is sufficient that

Plaintiff has alleged that each individual Defendant was personally involved in providing

him “‘an easier and less efficacious’” course of treatment, which may, depending on the

facts of the case, constitute “deliberate indifference.” Chance, 143 F.3d at 703 (quoting

Williams, 508 F.2d at 544).

Because Plaintiff has plausibly alleged their personal involvement, the Moving

Defendants’ request to dismiss Plaintiff's § 1983 claims against Defendants Moka, Hall,

McBride, DiBiase-Johnston, Torres, Parker, Cornell, and Westfield is DENIED.

B. Whether Plaintiff’s Monell Claims Against County of Erie Should Be

Dismissed.

Under Monell, a municipality may be liable under 42 U.S.C, § 1983 for its

employees’ unconstitutional actions “if the deprivation of the plaintiff's tights under

federal law is caused by a governmental custom, policy, ot usage of the municipality.”

Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012), To assert a Moneil claim, a

plaintiff must plead: “(1) an official policy or custom that (2) causes the plaintiff to be

subjected to (3) a denial of a constitutional right.” Wray v. City of New York, 490 F.3d

189, 195 (2d Cir. 2007) (citing Batista v. Rodriguez, 702 F.2d 393, 397 2d Cir, 1983)).

“The mere assertion that a municipality has such a custom or policy is insufficient in the

absence of allegations of fact tending to support, at least circumstantially, such an

inference.” Cotto v. City of New York, 803 F. App’x 500, 503 (2d Cir. 2020) (alteration

and quotation marks omitted) (quoting Zahra v. Town of Southold, 48 F.3d 674, 685 (2d

Cir. 1995)). For this reason, “boilerplate language echoing the requirements contained in

Monell[,]” Green v. City of Mount Vernon, 96 F. Supp. 3d 263, 302 (S.D.N.Y. 2015), will

not suffice.

Although “[a] plaintiff is not required to identify an express rule or regulation in

order to establish a Monell claim, and a court may infer a municipal policy from acts or

omissions of the municipality’s policy makers, . .. in the absence of other evidence, a

‘single incident of errant behavior is an insufficient basis for finding that a municipal

policy caused plaintiff's injury.’” JF v, Carmel Cent. Sch. Dist., 168 F. Supp. 3d 609, 617

(S.D.N.Y. 2016) (quoting Sarus v. Rotundo, 831 F.2d 397, 402-03 (2d Cir. 1987)); see

DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) (concluding that “a single incident

alleged in a complaint, especially if it involved only actors below the policy-making

level, does not suffice to show a municipal policy”). There are, however, “numerous

examples from within the Second Circuit in which the district court allowed a Monell

claim to survive [a motion to dismiss] where the [p]laintiff alleged only a few examples

of similar misconduct.” See DiPippo v. Cnty. of Putnam, 2019 WL 1004152, at *10

(S.D.N.Y. Feb. 28, 2019) (collecting cases),

Plaintiff claims County of Erie had a policy or custom of failing to protect those in

its custody from imminent health problems and failing to provide those same individuals

adequate medical treatment. ‘To support this allegation, Plaintiff cites two lawsuits filed in

the past thirteen years against County of Erie which he alleges demonstrate similar

misconduct. The court may consider these cases because Plaintiff “relies heavily upon

[their] terms and effect,” making them integral to the Amended Complaint, Chambers v.

Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002), and because they are properly

subject to judicial notice under Fed, R. Evid. 201. See Glob. Network Commce'ns, Inc. v.

City of New York, 458 F.3d 150, 157 (2d Cir, 2006) (“A court may take judicial notice of

a document filed in another court not for the truth of the matters asserted in the other

litigation, but rather to establish the fact of such litigation and related filings.”) (internal

quotation marks omitted) (quoting Int’l Star Class Yacht Racing Ass’n v. Tommy Hilfiger

U.S.A. Inc., 146 F.3d 66, 70 (2d Cir. 1998)); see also L-7 Designs, Ine. v. Old Navy,

LLC, 647 F.3d 419, 422 (2d Cir, 201 1) (“On a 12(c) motion, the court considers the

complaint, the answer, any written documents attached to them, and any matter of which

the court can take judicial notice for the factual background of the case. A complaint is

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also 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.”) (alterations adopted) (internal quotation marks

and citations omitted). The court, however, need not accept Plaintiff's characterizations

of the cited cases.

Plaintiff relies upon United States v. Erie Cnty., N. ¥., a 2009 lawsuit in which the

Department of Justice “alleged that the conditions at the Erie County facilities violated

the federal constitutional rights of the inmates housed there by failing (a) to protect them

from harm, (b) to provide adequate mental health care or medical care, and (c) to engage

in adequate suicide prevention.” 763 F.3d 235, 236 (2d Cir. 2014). The United States

asserted “Eighth and Fourteenth Amendment violations for, infer alia, medical

indifference, substandard mental health and medical care, and environmental health and

safety failings.” Jd. at 237, While Plaintiff alleges this lawsuit “revealed” deficient

medical care and unsanitary conditions in facilities operated by County of Erie, (Doc. 17

at 25-30), the lawsuit ended in a settlement whereby “the claims against the individual

defendant-officials were dismissed, and . . . Erie County did not admit wrongdoing[.]”

Erie Cnty., 763 F.3d at 237.

The second case cited by Plaintiff, brought by the New York State Commission of

Correction against Timothy B. Howard, individually and in his capacity as Sheriff of Erie

County, and County of Erie alleging violation of certain regulations of the Commission,

also ended without a finding of deliberate indifference. The only admission of

wrongdoing was by Sheriff Howard, who admitted that he “failed to ensure that the

Sheriff's Office conducted proper review, investigation, and assessments of several

‘nejdents” and failed to submit “timely Reportable Incident forms for several reportable

incidents[.]” Final Order and Consent Judgment at 4, New York State Comm'n of Corr. v.

Howard, No. 803433/2021 (N.Y. Sup. Ct., Erie Cnty. June 15, 2021), ECF 10.

Two cases settled without an admission of wrongdoing or liability by County of

Erie “is not enough to plausibly allege a widespread and persistent practice sufficient to

infer a policy or custom for Monell liability.” Forte v. City of New York, 2018 WL

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4681610, at *10 (S.D.N.Y. Sept. 28, 2018); see also Walker v, City of New York, 2015

WL 4254026, at *9 (S.D.N.Y. July 14, 2015) (finding that allegations of thirty-six

lawsuits involving allegedly false arrests, none of which resulted in an adjudication or

finding of liability, over the span thirteen years, were “insufficient to plausibly support an

inference of a widespread custom”); Walker v. City of New York, 2014 WL 1259618, at

*3 (S.D.N.Y. Mar. 18, 2014) (finding that plaintiffs reliance on ten complaints, “none

resulting in an adjudication of liability[],” over the span of a decade, “hardly suggests the

frequency or pervasiveness of the purported custom that is required to state a Monell

claim”); Tieman v. City of Newburgh, 2015 WL 1379652, at *17 (S.D.N.Y. Mar. 26,

2015) (finding lawsuits cited in a complaint “insufficient to plausibly support an

inference of a widespread custom” because “even if the civil complaints involved

comparable conduct to that alleged here, none resulted in an adjudication of liability”)

(alteration adopted) (internal quotation marks and citations omitted) (collecting cases).

Because Plaintiff's Monell allegations do not plausibly plead a policy or custom of

deliberate indifference, Defendants’ motion to dismiss Plaintiff's Monel! claim against

County of Erie is GRANTED.

C. Whether Plaintiff’'s Respondeat Superior Claims and Negligence Claims

under § 1983 Should Be Dismissed.

The Moving Defendants ask the court to dismiss Plaintiff's negligence claims

against County of Erie to the extent they rely on respondeat superior liability as well as

Plaintiff's negligence claims under § 1983. Plaintiff maintains that he “did not assert a

negligence claim sounding in respondeat superior or Section{ 11983 in his amended

complaint.” (Doc, 28-1 at 24.) Plaintiff is bound by his concession. See Bergerson v. N.Y.

State Off of Mental Health, Cent. N.Y. Psychiatric Ctr., 652 F.3d 277, 289 (2d Cir. 2011)

(“[AJU litigants are ‘bound by the concessions of freely retained counsel.’”) (quoting

Hoodho v. Holder, 558 F.3d 184, 192 (2d Cir. 2009)); cf Purgess v. Sharrock, 33 F.3d

134, 144 (2d Cir. 1994) (“A court can appropriately treat statements in briefs as binding

judicial admissions of fact.”). The Moving Defendants’ request to dismiss Plaintiff's

negligence claim against County of Frie to the extent it is based on respondeat superior

12

liability and Plaintiff's negligence claims under § 1983 is therefore DENIED AS MOOT,

CONCLUSION

For the foregoing reasons, the court GRANTS IN PART and DENIES IN PART

the Moving Defendants’ motion for judgment on the pleadings. (Doc. 24.) Plaintiff's

Monell claims against County of Erie are hereby DISMISSED.

SO ORDERED.

Dated this “ day of May, 2022. ee

Christina Reiss, District Judge

United States District Court

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