Ellis v. United States

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------

JAMES ELLIS,

Plaintiff, MEMORANDUM & ORDER

23-CV-8350 (MKB)

v.

THE UNITED STATES OF AMERICA, FEDERAL

CORRECTIONS OFFICER WADLEY

DEMORCY, Individually, FEDERAL BUREAU

OF PRISONS CORRECTION OFFICERS “JOHN

DOE” #1-20, Individually (the name John Doe being

fictitious, as the true names are presently unknown),

Defendants.

---------------------------------------------------------------

MARGO K. BRODIE, United States District Judge:

Plaintiff James Ellis commenced the above-captioned action on November 9, 2023

against Defendant the United States of America for various common law claims under the

Federal Tort Claims Act1 (“FTCA”) and against Defendants federal corrections officers Wadley

Demorcy and John Does 1–20 for violations of Plaintiff’s Fifth Amendment and Eighth

Amendment rights. (Compl., Docket Entry No. 1.) On March 18, 2024, Defendants filed a

premotion conference (“PMC”) request for an anticipated motion to dismiss the Complaint.

(Defs.’ Letter Mot. for PMC, Docket Entry No. 13.) On April 12, 2024, in response to

Defendants’ PMC request and with leave of the Court, Plaintiff filed an Amended Complaint

adding factual allegations. (Am. Compl., Docket Entry No. 15.) Plaintiff narrowed his FTCA

1 The FTCA claims alleged in the Complaint are negligence by federal law

enforcement/corrections officers, negligent hiring/training/supervision/retention, negligently

failing to protect, denial or delay of medical care and/or medication, deliberate indifference to

Plaintiff’s welfare and safety, and deliberate indifference to Plaintiff’s medical needs. (Compl.

¶¶ 99–110, Docket Entry No. 1.)

claims against the United States to negligence, negligent failure to protect, “denial or delay of

medical care and/or medication,” deliberate indifference to Plaintiff’s health, welfare, and safety,

and deliberate indifference to Plaintiff’s medical needs, and his claims against Demorcy and

John Does 1–20 to one claim for deliberate indifference to Plaintiff’s medical needs in violation

his Fifth Amendment and Eighth Amendment rights. (Id. ¶¶ 91–134.)

On August 5, 2024, Defendants moved to dismiss (1) the FTCA claims for deliberate

indifference to Plaintiff’s health, welfare, and safety and deliberate indifference to Plaintiff’s

medical needs against the United States for lack of subject-matter jurisdiction pursuant to

Federal Rule of Civil Procedure 12(b)(1); and (2) the deliberate indifference to Plaintiff’s

medical needs claim against Demorcy for failure to state a claim upon which relief may be

granted pursuant to Federal Rule of Civil Procedure 12(b)(6) based on qualified immunity.2

Plaintiff opposed the motion.3 For the reasons explained below, the Court denies Defendants’

motion as to Plaintiff’s deliberate indifference claim against Demorcy. The Court also denies as

moot Defendants’ motion to dismiss the FTCA claims for deliberate indifference against the

United States because Plaintiff has withdrawn the claims.4 Because Defendants did not move to

dismiss Plaintiff’s remaining FTCA claims against the United States for negligence, negligent

2 (Defs.’ Mot. to Dismiss (“Defs.’ Mot.”), Docket Entry No. 24; Defs.’ Mem. in Supp. of

Defs.’ Mot. (“Defs.’ Mem.”), Docket Entry No. 24; Defs.’ Reply in Supp. of Defs.’ Mot.

(“Defs.’ Reply”), Docket Entry No. 28.)

3 (Pl.’s Opp’n to Defs.’ Mot. (“Pl.’s Opp’n”), Docket Entry No. 25.)

4 In his opposition to Defendants’ motion to dismiss, Plaintiff states that “[u]pon further

investigation of the case law surrounding [his] deliberate indifference claims as to [D]efendant

United States of America under the FTCA . . . , [he] has decided to withdraw those claims.”

(Pl.’s Opp’n 19 n.6.)

failure to protect, and “denial or delay of medical care and/or medication” nor his claims against

John Does 1–20,5 these claims may also proceed.

I. Background

On December 21, 2021, Plaintiff was arrested and remanded to the custody of the United

States Federal Bureau of Prisons (“BOP”) at Metropolitan Detention Center (“MDC”).6 (Am.

Compl. ¶̑ 24.) On April 13, 2022, Plaintiff pleaded guilty, and on July 28, 2022, the Court

sentenced him to twenty-seven months of imprisonment. (Id. ¶̑¶ 25–26.) At all relevant times,

Plaintiff remained incarcerated at MDC.7 (Id. ¶ 27.)

5 In their reply brief, Defendants note that “[w]hile the Amended Complaint named at least

twenty unidentified [John Doe] defendants, none are identified with any particularity,” (Defs.’

Reply 9 n.3), but do not argue that the claims against John Does 1–20 should be dismissed.

6 The Court assumes the truth of the factual allegations in the Amended Complaint for

the purpose of deciding Defendants’ motion.

7 Plaintiff brings his deliberate indifference to medical needs claim pursuant to both the

Fifth Amendment and Eighth Amendment. (See Am. Compl. ¶ 95.) Because Plaintiff was a

sentenced prisoner at the time of the incidents alleged in the Amended Complaint, the Eighth

Amendment applies to his deliberate indifference claim against Demorcy. See Caiozzo v.

Koreman, 581 F.3d 63, 69 (2d Cir. 2009) (“A convicted prisoner’s claim of deliberate

indifference to his medical needs by those overseeing his care is analyzed under the Eighth

Amendment because the right the plaintiff seeks to vindicate arises from the Eighth

Amendment’s prohibition of cruel and unusual punishment.” (internal quotation marks omitted)

(quoting Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996))), overruled on other grounds by

Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017); Weyant, 101 F.3d at 856 (“In the context of a

convicted prisoner, who has a right under the Eighth Amendment to be free from cruel and

unusual punishments, ‘[a] prison official’s “deliberate indifference” to a substantial risk of

serious harm to an inmate violates the Eighth Amendment.’” (alteration in original) (quoting

Farmer v. Brennan, 511 U.S. 825, 828 (1994))); Carter v. United States, No. 22-CV-6715, 2024

WL 1345313, at *1 n.3 (E.D.N.Y. Mar. 29, 2024) (“The right of a convicted prisoner ‘to be free

from cruel and unusual punishment,’ including ‘a prison official’s deliberate indifference to a

substantial risk of serious harm’ is protected under the Eighth Amendment, whereas the rights of

‘a pretrial detainee’ in federal custody ‘are protected by the Due Process Clause’ of the Fifth

Amendment.” (quoting Weyant, 101 F.3d at 856)); see also Cuoco v Moritsugu, 222 F.3d 99,

106 (2d Cir. 2000) (affirming that plaintiff’s deliberate indifference and other claims arose under

the Due Process clause of the Fifth Amendment rather than the Eighth Amendment because she

was in pretrial detention at the time of the alleged incidents).

a. Recurring water, air conditioning, and ventilation outages at MDC

On August 9, 2022, Plaintiff was being housed in MDC “I-63, 14 Upper,” and outside

temperatures were nearly ninety degrees. (Id. ¶̑ 32.) In the weeks leading up to August 9, 2022,

the air conditioning, water, and ventilation in Plaintiff’s cell block had been shut off “no less

than” three times in the hot and humid summer weather. (Id. ¶̑ 34.) Plaintiff and other inmates

complained to John Does 1–20 and/or Demorcy numerous times, requested to know the reason

for the shutoffs, and advised BOP corrections officers and medical staff that they were being

subjected to unbearable conditions, including extreme heat and lack of adequate water and

ventilation during overnight lock-ins. (Id. ¶¶̑ 35, 45.) Plaintiff had made requests to Demorcy

and/or John Does 1–20 and to BOP medical staff that he be provided with extra water overnight

when the periodic water outages occurred because BOP medical staff had prescribed Plaintiff

several medications to facilitate normal bowel movements and lessen constipation and explicitly

advised Plaintiff to take the medications with copious amounts of water. (Id. ¶̑¶̑ 40–42.)

Plaintiff was not provided with additional water during any outages. (Id. ¶̑ 42.)

Plaintiff and the other inmates in his cell block were not told the real reasons for the

outages. (Id. ¶̑ 36.) BOP staff, including John Does 1–20, told them that there were “plumbing

issues,” that “they were unable to provide further information about the nature of the problem,”

that “the outages would continue as necessary,” and that “they could not provide [P]laintiff or

any of the other inmates any update as to when the problem would be fixed.” (Id.) John Does 1–

20 “and/or other relevant United States employees” did not take the proper steps to

“expeditiously remedy” the “extremely hot and uncomfortable conditions.” (Id. ¶ 33.)

b. Plaintiff’s injuries and requests for medical attention

i. Plaintiff’s injuries

On August 9, 2022 before 9:15 P.M. and again on August 10, 2022 before 2:00 A.M.,

John Does 1–20 “and/or other relevant United States employees” purposely turned off the air

conditioning, water, and ventilation in Plaintiff’s and other inmates’ cells for unknown reasons,

causing “extremely hot” and “unbearable” conditions inside the MDC. (Id. ¶̑ 32.) Before

evening lockdown on August 9, 2022, Plaintiff and other inmates were provided with two

sixteen-ounce water bottles because of the water shut-off in their cells, and Plaintiff advised

several corrections officers that the two bottles of water were not enough and that he needed

additional water for the evening. (Id. ¶̑¶ 39, 43.) Plaintiff and the other inmates were not

provided additional water until approximately 7:30 A.M. or 8:00 A.M. the next morning. (Id.

¶¶̑ 39, 43.)

During overnight lock-in, between August 9, 2022 at 9:15 P.M. and August 10, 2022 at

2:00 A.M., Plaintiff was hot, dehydrated, constipated, and unable to sleep on account of his

medical condition and lack of sufficient water and properly functioning air conditioning and

ventilation. (Id. ¶¶̑ 37, 44.) He became lightheaded and fainted while straining to make a bowel

movement, forcefully hit his face on the stall that was approximately one foot away from the

toilet, fractured his jaw, and was unconscious for several minutes. (Id. ¶¶̑ 46–49.) Upon

regaining consciousness, Plaintiff was bleeding and tried to scream for help from corrections

officers but could only muster moaning and groaning because he could not move his mouth

completely and was in severe pain from his fractured jaw. (Id. ¶¶̑ 48–49.) For approximately

forty minutes, Plaintiff attempted to summon corrections officers by banging loudly with his fists

and forcefully kicking on his cell door, but no corrections officers or other BOP employee came

to his aid. (Id. ¶¶̑ 49–50.) Although corrections officers are required to perform rounds

approximately every fifteen minutes, Plaintiff did not see any officers pass his cell, which was

located in the top corner of the unit, during the forty minutes he banged on his cell door for help.

(Id. ¶̑ 51.) Plaintiff eventually fell asleep. (Id. ¶̑ 52.)

ii. Plaintiff’s requests for medical attention

Upon waking up the morning of August 10, 2022, Plaintiff was no longer bleeding but was

still suffering from mouth and jaw pain. (Id.) At approximately 7:30 A.M. or 8:00 A.M., Plaintiff

notified a corrections officer that he was in pain and needed immediate medical attention, but the

corrections officer advised Plaintiff that he could not get medical attention at that time because of a

shift change. (Id. ¶̑¶̑ 53–54.) Plaintiff remained in pain and again sought medical attention

approximately thirty minutes later. (Id. ¶̑ 55.) As Plaintiff waited to speak with the “Unit Team,”

he saw the facility dentist, Dr. Brown, and spoke with him about his immense facial pain and his

need for immediate medical attention. (Id.) While Plaintiff was speaking with Dr. Brown,

Demorcy and other corrections officers approached and heard Plaintiff explaining that he had

forcefully hit his face on the stall the prior evening due to the heat and dehydration, that he was in

severe facial pain, and that he needed immediate medical attention. (Id. ¶¶̑ ̑ 55–56.) Demorcy and

the other corrections officers also heard Dr. Brown advise Plaintiff that he had likely suffered a

serious face and jaw injury, needed to be immediately brought to the medical unit for evaluation,

and that Dr. Brown would personally escort Plaintiff to the medical unit. (Id. ¶̑ 56.) Demorcy

immediately responded that Plaintiff was lying about what happened, had probably gotten injured

in a fight rather than as Plaintiff described, was not seriously injured, did not require immediate

medical attention, and needed to return to his unit. (Id. ¶̑ 58.) As a result, Plaintiff was not

transported to the medical unit and was ordered to return to his housing unit. (Id. ¶̑ 59.) Plaintiff

remained in his housing unit, during which time he continued to complain about his severe pain to

corrections officers, but he did not receive medical treatment. (Id. ¶ ̑60.)

Between approximately 11:00 A.M. and 12:00 P.M., Plaintiff returned to the Unit Team’s

office and advised that he was injured, in severe pain, and needed immediate medical treatment

and/or to go to a hospital. (Id. ¶̑ 61.) Rather than escorting Plaintiff to the hospital, a corrections

officer took Plaintiff to see Dr. Brown. (Id. ¶̑ 62.) Upon arriving to Dr. Brown’s office between

approximately 11:35 A.M. and 12:00 P.M., Dr. Brown looked at Plaintiff’s face and advised that

he would attempt to get Plaintiff immediate medical attention as Plaintiff had swelling on his

lower right face, denied being assaulted, and appeared to be suffering from more than a dental

issue. (Id. ¶̑ 63.) A corrections officer told Plaintiff to return to his housing area and wait. (Id.

¶̑ 64.) Plaintiff returned to his housing area in severe pain and waited for some time until

corrections officers advised him they were taking him to the hospital. (Id. ¶¶̑ 65–66.) Plaintiff

departed for the hospital at approximately 3:45 P.M. (Id. ¶¶̑ 67–70.)

c. Plaintiff’s hospitalizations and requests for follow-up care

Upon arrival at the hospital, Plaintiff was evaluated and found to have two broken bones

in his face that required invasive surgery to repair, including wiring of his jaw and extraction of

one of his teeth. (Id. ¶̑ 72.) Plaintiff remained hospitalized for approximately two days

following surgery, and on August 12, 2022, upon release from the hospital, was transported back

to MDC but not to his normal housing unit. (Id. ¶¶̑ 73–74.) Plaintiff was taken to the Secure

Housing Unit (the “SHU”). (Id. ¶̑ 74.) Plaintiff had not committed any infractions nor received

any tickets or misbehavior reports. (Id.) Plaintiff remained in the SHU for approximately one

week, despite multiple complaints, and was denied his antibiotics, prescribed pain medication,

and adequate treatment. (Id. ¶̑ 75.)

By August 13, 2022, Plaintiff was unable to consume the food MDC officials provided

him and the minimal pain medication that Plaintiff was given “sporadically” was not helping his

“unremitting pain.” (Id. ¶̑ 76.) Doctors treating Plaintiff found that MDC was “unable to

provide sufficient pain management and nutrition” and told the facility to transfer him to a local

hospital “for [a] higher level of care.” (Id. ¶̑ 77.) Despite Plaintiff’s multiple complaints to

multiple corrections officers, he remained at MDC, malnourished and in severe pain. (Id. ¶̑ 78.)

On August 17, 2022, between 11:00 A.M. and 11:45 A.M., Plaintiff suffered a seizure

“for the first time in his life” and was transported to Brooklyn Hospital. (Id. ¶¶̑ 79, 81.) Plaintiff

remained at the hospital for approximately one day, during which time the wires in his mouth

were removed and he was treated for the seizure. (Id. ¶̑ 80.) On August 18, 2022, Plaintiff was

transported back to MDC. (Id. ¶̑ 82.) Several hours later, Plaintiff was advised that he needed

medical housing, an accommodation that Plaintiff had been requesting and that his doctors had

told MDC that Plaintiff needed in order to receive a higher level of care than MDC was

providing. (Id. ¶̑ 83.) Plaintiff was not immediately transferred into medical housing and

remained at MDC for another five days. (Id. ¶̑ 84.)

On or about August 23, 2022, nearly two weeks after the incident, Plaintiff was

transported to Windsor Park Nursing Home where he received antibiotics and other medication.

(Id. ¶̑ 85.) Plaintiff remained at Windsor Park for approximately three weeks and when he was

transported back to MDC, he was again put in the SHU. (Id. ¶̑ 86.) Plaintiff remained in the

SHU for several days without any justification or reason known to him. (Id. ¶̑ 87.)

Following the incident, Plaintiff remained at MDC and was later transferred to other BOP

facilities. (Id. ¶̑ 28.) On November 8, 2023, Plaintiff was released from BOP custody. (Id.

¶¶̑ 29, 31.)

II. Discussion

a. Standard of review

In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, a court “must construe [the Complaint] liberally, accepting all factual allegations

therein as true and drawing all reasonable inferences in the plaintiff[’s] favor.” Sacerdote v. N.Y.

Univ., 9 F.4th 95, 106–07 (2d Cir. 2021) (citing Palin v. N.Y. Times Co., 940 F.3d 804, 809 (2d

Cir. 2019)); see also Vaughn v. Phoenix House N.Y. Inc., 957 F.3d 141, 145 (2d Cir. 2020)

(quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002)). A complaint must

plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007); Bacon v. Phelps, 961 F.3d 533, 540 (2d Cir. 2020) (quoting

Twombly, 550 U.S. at 570). “A claim is plausible ‘when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.’” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)); see also Roe v. St. John’s Univ., 91 F.4th 643, 651 (2d Cir. 2024)

(quoting Matson, 631 F.3d at 63); Cavello Bay Reinsurance Ltd. v. Shubin Stein, 986 F.3d 161,

165 (2d Cir. 2021) (quoting Iqbal, 556 U.S. at 678). Although all allegations contained in the

complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Iqbal, 556

U.S. at 678; Roe, 91 F.4th at 651 (“Although all factual allegations contained in the complaint

are assumed to be true, this rule does not extend ‘to legal conclusions. Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not suffice.’”

(quoting Iqbal, 556 U.S. at 678)).

b. Plaintiff has stated a claim that Demorcy violated his Eighth Amendment

right to adequate medical care

Defendants argue that Plaintiff fails to show Demorcy’s “personal participation in

conduct amounting to deliberate indifference to [Plaintiff’s] serious medical needs,” as the

Amended Complaint contains only two factual allegations involving Demorcy that “are simply

insufficient” to “allow the inference that [Demorcy], through his own actions, violated Plaintiff’s

Eighth Amendment rights.” (Defs.’ Mem. 6–11; Defs.’ Reply 9.) In support, Defendants

contend that the first allegation, that “[Plaintiff] informed [Demorcy] at some point prior to

August 9, the date [Plaintiff] sought medical attention, that he needed additional water when it

was shut off overnight in the cells,” is a “vague” and “bare assertion” that does not plausibly

allege Demorcy’s “deliberate indifference to a serious medical need on August 9” because there

are no allegations indicating that (a) Plaintiff’s “gastrointestinal issues placed him at substantial

risk of serious harm” or that Demorcy “was aware of that risk”; (b) “providing only 32 ounces of

water during the overnight hours would equate to an ‘unnecessary and wanton infliction of

pain’”; and (c) Demorcy “knew of and disregarded a substantial risk to [Plaintiff’s] health” since

Plaintiff “does not allege that [Demorcy] refused him additional water the night he was injured,

or even that [Demorcy] was on duty at that time.” (Defs.’ Mem. 9–10 (citing Am. Compl. ¶¶ 41,

43).) Defendants also contend that Plaintiff’s allegation that “his medical condition necessitated

additional water for the overnight hours” lacks “factual allegations to support the claim,” such as

“what medications he was taking, how much water would be sufficient, or even why he needed

to take the medication during the lockdown hours, rather than during the day when he could

procure water on his own” or Demorcy’s “awareness” of “these specifics.” (Id. at 10.) As to the

second allegation, “that around 8:30 [A.M.], [Plaintiff] was talking with a medical professional,

Dr. Brown, outside the [U]nit [T]eam office when [Demorcy] inserted himself into the

conversation, expressed his disbelief that [Plaintiff] was seriously injured, and ordered him to

return to his cell rather than go to the medical unit with Dr. Brown,” Defendants argue that

Plaintiff has “no facts to establish that [Demorcy] should have inferred that [Plaintiff’s] injury

was serious and needed immediate attention” or that Demorcy “actually drew the inference.”

(Id. at 10 (citing Am. Compl. ¶¶ 55–56).) Defendants also argue that Plaintiff “does not allege

that [his] injuries should have been obvious from his appearance, nor does it allege that Dr.

Brown, a medical professional, objected when [Demorcy] ordered [Plaintiff] to return to his cell”

and that from the allegations, “it is reasonable to infer that [Demorcy] believed, as he is alleged

to have said, that [Plaintiff] was not seriously injured and did not require immediate medical

attention.” (Id. at 10–11.)

Plaintiff argues that “the fact-intensive nature of [his] claims makes dismissal completely

inappropriate at this stage.” (Pl.’s Opp’n 14.) In support he contends that (a) “a fully developed

medical record” is necessary for the Court to determine whether his condition “constituted a

serious medical need”; (b) the determination of whether any delay in Plaintiff’s treatment rises “to

the level of deliberate indifference” is “highly fact sensitive” and “should be analyzed with regard

to all relevant facts and circumstances”; and (c) state of mind cannot be pleaded. (Id. at 11–13

(citations omitted).) Plaintiff argues the allegations in his Amended Complaint “have been

repeatedly recognized –– on numerous grounds –– as being sufficient to plausibly state a claim.”

(Id. at 14–15.) He contends that he has sufficiently alleged a serious medical condition “that was

recognized, known, and documented by prison doctors” by showing that a physician mandated

treatment and that he was “suffering great pain.” (Id. at 15–16.). He also argues that his

allegations amount to a deliberate indifference claim under “all relevant legal standards” in the

Second Circuit because they show that Defendants “ignored or otherwise interfered with medically

proscribed treatment,” establish that his medical requests were ignored for reasons unrelated to his

medical condition, and that “Defendants created conditions that exacerbated them.” (Id. at 13, 17–

19.) Plaintiff also argues that the “sufficiency” of his Amended Complaint is “unaffected by

[D]efendants self-serving assertions that it was ‘reasonable’ for [Demorcy] to believe –– in the face

of medical recommendations to the contrary –– that [Plaintiff] was not seriously injured and did

not require immediate medical attention.” (Id. at 18–19 (citation omitted).)

“Congress has never ‘provide[d] a specific damages remedy for plaintiffs whose

constitutional rights were violated by agents of the [f]ederal [g]overnment.’” Cohen v. Trump,

No. 23-35, 2024 WL 20558, at *2 (2d Cir. Jan. 2, 2024) (alteration in original) (quoting Ziglar v.

Abbasi, 582 U.S. 120, 130 (2017)), cert. denied, 145 S. Ct. 415 (2024) (mem.). “In 1971,

however, the Supreme Court in Bivens [v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971)] created an implied cause of action such that ‘damages may be

obtained for injuries consequent upon a violation of the Fourth Amendment by federal

officials.’” Id. (quoting Bivens, 403 U.S. at 395). Because Bivens is the creation of federal

common law, its application has been limited. See Ballard v. Dutton, No. 23-6416, 2024 WL

4039606, at *1 (2d Cir. Sept. 4, 2024) (“Bivens provides a cause of action for damages against

federal officials for a limited set of constitutional torts.” (citing Egbert v. Boule, 596 U.S. 482,

490–91 (2022))); Dotson v. Griesa, 398 F.3d 156, 166 (2d Cir. 2005) (“Because a Bivens action

is a judicially created remedy . . . courts proceed cautiously in extending such implied relief[.]”);

Bal v. U.S. Dep’t of the Treasury, No. 21-CV-4702, 2023 WL 6517738, at *2 (S.D.N.Y. Oct. 5,

2023) (citing Bivens, 403 U.S. at 396–97) (same). “The Supreme Court has expressly recognized

only three contexts in which a Bivens remedy is available: unreasonable search and seizure by

federal officials in violation of the Fourth Amendment, Bivens, 403 U.S. 388; gender-based

employment discrimination by a United States Congressman in violation of the Fifth

Amendment, Davis v. Passman, 442 U.S. 228 (1979); and federal prison officials’ deliberate

indifference to an inmate’s serious medical needs in violation of the Eighth Amendment, Carlson

v. Green, 446 U.S. 14 (1980).” Ballard, 2024 WL 4039606, at *1 (citing Ziglar, 582 U.S. at

130–31). “Since Carlson, however, the Supreme Court has repeatedly declined to extend Bivens,

warning that ‘recognizing a cause of action under Bivens is “a disfavored judicial activity.”’” Id.

(quoting Egbert, 596 U.S. at 491); Atterbury v. U.S. Marshals Serv., 941 F.3d 56, 62 (2d Cir.

2019) (“[E]xpanding the Bivens remedy is now a disfavored judicial activity.” (quoting Ziglar,

582 U.S. at 135)).

“‘[D]eliberate indifference to serious medical needs of prisoners constitutes the

‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment[,] . . . whether

the indifference is manifested by prison doctors in their response to the prisoner’s needs or by

prison guards in intentionally denying or delaying access to medical care.” Darby v. Greenman,

14 F.4th 124, 128 (2d Cir. 2021) (alterations in original) (quoting Estelle v. Gamble, 429 U.S. 97,

104–05 (1976)); see Smith v. New York State, No. 23-6601, 2024 WL 4746554, at *2 (2d Cir.

Nov. 12, 2024) (“The Eighth Amendment requires prison officials to ‘provide humane conditions

of confinement’ by ‘ensur[ing] that inmates receive adequate . . . medical care . . . .’” (alteration

in original) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994))); Nazario v. Thibeault, No.

22-1657, 2023 WL 7147386, at *2 (2d Cir. Oct. 31, 2023) (“[D]eliberate indifference to a

prisoner’s ‘serious medical needs’ constitutes cruel and unusual punishment in contravention of

the Eighth Amendment.” (quoting Estelle, 429 U.S. at 106)); Walker v. Schult, 45 F.4th 598, 610

(2d Cir. 2022) (“Cruel and unusual punishment in violation of the Eighth Amendment can take

many shapes, whether by design, . . . or by deliberate indifference, for example to a prisoner’s

serious medical needs[.]” (citing Estelle, 429 U.S. at 103–05)). “An Eighth Amendment claim

arising out of inadequate medical care requires a demonstration of ‘deliberate indifference to [a

prisoner’s] serious medical needs.’” Gibson v. St. Elizabeth Med. Ctr. Hosp. Exec. Dir., No. 22-

1868, 2023 WL 3295843, at *2 (2d Cir. May 8, 2023) (alteration in original) (quoting Hill v.

Curcione, 657 F.3d 116, 122 (2d Cir. 2011)). “The standard of deliberate indifference includes

both subjective and objective components.” Mallet v. N.Y. State Dep’t of Correc. & Cmty.

Supervision, 126 F.4th 125, 132 (2d Cir. 2025) (quoting Chance v. Armstrong, 143 F.3d 698, 702

(2d Cir. 1998)).

The objective component requires a plaintiff to “show that, while he was incarcerated, he

suffered from a medical condition that is, ‘in objective terms, sufficiently serious.’” Id. (quoting

Chance, 143 F.3d at 702). “Though there is no single metric,” the Second Circuit has held “that

a ‘sufficiently serious’ medical condition in the Eighth Amendment context refers to a ‘condition

of urgency that may result in degeneration or extreme pain,’ that ‘significantly affects daily

activities,’ or that involves ‘chronic and substantial pain.’” Id. (first quoting Chance, 143 F.3d at

702; and then quoting Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003)). The Second Circuit

has considered “whether a reasonable doctor or patient would find the injury important and

worthy of treatment.” Charles v. Orange Cnty., 925 F.3d 73, 86 (2d Cir. 2019) (quoting Chance,

143 F.3d at 702); see Mallet, 126 F.4th at 141–42 (Menashi, J., dissenting) (explaining that

whether a medical condition is a “serious one” includes a consideration of “the existence of an

injury that a reasonable doctor or patient would find important and worthy of comment or

treatment” (quoting Chance, 143 F.3d at 702)); Bradshaw v. City of New York, 855 F. App’x 6,

10 (2d Cir. 2021) (same); LoCurto v. U.S. Bureau of Prisons, No. 23-CV-387, 2024 WL

4884343, at *8 (E.D.N.Y. Aug. 12, 2024) (quoting Charles, 925 F.3d at 86) (same), report &

recommendation adopted, 2024 WL 4880666 (E.D.N.Y. Nov. 25, 2024). An additional factor is

whether “the denial of treatment ‘could result in further significant injury or the unnecessary and

wanton infliction of pain,’” Abreu v. Lipka, 778 F. App’x 28, 31–32 (2d Cir. 2019) (quoting

Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000)). “The condition need not be ‘life-

threatening’ or ‘at the limit of human ability to bear,’ but it must be more than simply

‘uncomfortable and annoying.’” Mallet, 126 F.4th at 132 (quoting Brock, 315 F.3d at 163).

“The question will be whether a plaintiff plausibly alleges a condition that produces severe and

unmanaged pain.” Collymore v. Krystal Myers, RN, 74 F.4th 22, 30 (2d Cir. 2023).

“When the basis for a prisoner’s Eighth Amendment claim is a temporary delay or

interruption in the provision of otherwise adequate medical treatment,” courts may “focus on the

challenged delay or interruption in treatment rather than the prisoner’s underlying medical

condition alone in analyzing whether the alleged deprivation is, in ‘objective terms, sufficiently

serious.’” Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003) (quoting Chance, 143 F.3d at

702); see also Lombardo v. Graham, 807 F. App’x 120, 123 (2d Cir. 2020) (quoting same);

Culbreth v. Manuel, No. 24-CV-497, 2025 WL 35059, at *6 (S.D.N.Y. Jan. 6, 2025) (“When

medical treatment was provided but a complaint alleges that treatment was delayed or

inadequate, the relevant concern is the ‘particular risk of harm faced by a prisoner due to the

challenged deprivation of care.’” (quoting Carpenter, 316 F.3d at 186)); Kimbrough v. Malloy,

No. 24-CV-1572, 2024 WL 5146525, at *3 (D. Conn. Dec. 17, 2024) (“Where, as here, the claim

is that medical treatment was improperly delayed, the injury for the objective component focuses

on the effect of the delay rather than the underlying medical condition itself.” (citing Carpenter,

316 F.3d at 186)). “[I]t’s the particular risk of harm faced by a prisoner due to the challenged

deprivation of care, rather than the severity of the prisoner’s underlying medical condition,

considered in the abstract, that is relevant for Eighth Amendment purposes.” Carpenter, 316

F.3d at 186 (citing Chance, 143 F.3d at 702–03); Alvarez v. Wright, 797 F. App’x 576, 579 (2d

Cir. 2019) (“If the basis of the complaint is a temporary delay, . . . it is appropriate to focus on

the effect of that challenged delay in treatment in determining whether the risk was objectively

serious.” (citing Carpenter, 316 F.3d at 186)); Hanrahan v. Mennon, 470 F. App’x 32, 33 (2d

Cir. 2012) (“Where the challenge is to the adequacy of the treatment provided, such as in cases

where treatment is alleged to have been delayed or interrupted, the seriousness inquiry focuses

on ‘the particular risk of harm faced by a prisoner due to the challenged deprivation of care,

rather than the severity of the prisoner’s underlying medical condition, considered in the

abstract.’” (quoting Carpenter, 316 F.3d at 186)); Kerr v. DelPeschio, No. 19-CV-988, 2024

WL 148241, at *8 (D. Conn. Jan. 12, 2024) (quoting same). Courts may consider “[t]he absence

of adverse medical effects or demonstrable physical injury” in determining whether the delay

caused a risk of harm. Carpenter, 316 F.3d at 187; Valdiviezo v. Boyer, 752 F. App’x 29, 32 (2d

Cir. 2018) (same); Khozouri-Zadeh v. Cnty. of Nassau, No. 21-CV-4601, 2025 WL 343465, at

*6 (E.D.N.Y. Jan. 30, 2025). “Although a delay in providing necessary medical care may in

some cases constitute deliberate indifference, [the Second Circuit] has reserved such a

classification for cases in which, for example, officials deliberately delayed care as a form of

punishment, see Archer v. Dutcher, 733 F.2d 14, 16–17 (2d Cir. 1984); ignored a ‘life-

threatening and fast-degenerating’ condition for three days, Liscio v. Warren, 901 F.2d 274, 277

(2d Cir.1990); or delayed major surgery for over two years, see Hathaway v. Coughlin, 841 F.2d

48, 50–51 (2d Cir. 1988).” Demata v. N.Y. State Corr. Dep’t of Health Servs., 198 F.3d 233 (2d

Cir. 1999); see Sims v. City of New York, 788 F. App’x 62, 64 (2d Cir. 2019) (quoting same);

Mills v. Travers, No. 20-CV-3035, 2024 WL 1858224, at *4 (E.D.N.Y. Apr. 29, 2024) (same).

The subjective component requires a plaintiff to “establish that [the defendants] acted

with a ‘sufficiently culpable state of mind,’” Mallet, 126 F.4th at 132 (quoting Hathaway v.

Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)), and “show that the acts or omissions of [the

defendants] ‘evince[d] a conscious disregard of a substantial risk of serious harm,’” id. (second

alteration in original) (quoting Darby, 14 F.4th at 128). “The plaintiff must prove that the

official ‘had subjective knowledge of a substantial risk of serious harm to an inmate and

disregarded it.’” Nazario, 2023 WL 7147386, at *2 (quoting Tangreti v. Bachmann, 983 F.3d

609, 616 (2d Cir. 2020)). Moreover, “a deliberate indifference claim can lie where prison

officials deliberately ignore the medical recommendations of a prisoner’s treating physicians.”

Johnson v. Wright, 412 F.3d 398, 404 (2d Cir. 2005) (citing Gill v. Mooney, 824 F.2d 192, 196

(2d Cir. 1987)); see Rodriguez v. Manenti, 606 F. App’x 25, 27 (2d Cir. 2015) (same); Ellis v.

Kim, No. 23-CV-5309, 2024 WL 4882702, at *6 (S.D.N.Y. Nov. 25, 2024) (same); Crispin v.

Peiri, No. 21-CV-475, 2023 WL 2931846, at *7 (D. Conn. Apr. 13, 2023) (same); Raynor v.

Feder, No. 20-CV-1343, 2021 WL 431457, at *5 (D. Conn. Feb. 8, 2021) (same); see also Gill,

824 F.2d at 196 (“Prison officials are more than merely negligent if they deliberately defy the

express instructions of a prisoner’s doctors.”). District courts in the Second Circuit have found a

deliberate indifference claim against corrections officers and other nonmedical personnel based

on delayed treatment where “a plaintiff . . . prove[s] that [the nonmedical] prison personnel

intentionally delayed access to medical care when the inmate was in extreme pain and ha[d]

made his medical problems known to the attendant prison personnel.” Hodge v. Coughlin, No.

92-CV-622, 1994 WL 519902, at *11 (S.D.N.Y. Sept. 22, 1994), aff’d, 52 F.3d 310 (2d Cir.

1995); see Mehalick v. Stowell, No. 24-CV-775, 2024 WL 4930660, at *7 (N.D.N.Y. Dec. 2,

2024) (quoting Dumel v. Westchester Cnty., No. 19-CV-2161, 2021 WL 738365, at *10

(S.D.N.Y. Feb. 25, 2021)); Ibbison v. Scagliarni, No. 23-CV-1379, 2024 WL 4904636, at *10

(D. Conn. Nov. 27, 2024) (quoting Roundtree v. City of New York, No. 15-CV-8198, 2018 WL

1586473, at *6 (S.D.N.Y. Mar. 28, 2018)); Morrison v. United States, No. 17-CV-6779, 2019

WL 5295119, at *5 (S.D.N.Y. Oct. 18, 2019) (quoting same); Cannenier v. Skipper-Scott, No.

18-CV-2383, 2019 WL 764795, at *7 (S.D.N.Y. Feb. 20, 2019) (quoting same); Scott v. Abate,

No. CV-93-4589, 1995 WL 591306, at *5 (E.D.N.Y. Sept. 27, 1995) (quoting Hodge, 1994 WL

519902, at *11). “At a minimum, there must be at least some allegations of a conscious or

callous indifference to a prisoner’s rights.” Hodge, 1994 WL 519902, at *11 (citation omitted);

see Bright v. Annucci, No. 18-CV-11111, 2024 WL 3012043, at *7 (S.D.N.Y. June 13, 2024)

(quoting Hodge, 1994 WL 519902, at *11). However, “prison officials who lacked knowledge

of a risk cannot be said to have inflicted punishment” if “they knew the underlying facts but

believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or

nonexistent.” Farmer, 511 U.S. at 844; see Salahuddin v. Goord, 467 F.3d 263, 281 (2d Cir.

2006) (first quoting Farmer, 511 U.S. at 844), abrogated on other grounds as recognized by

Tripathy v. McKoy, 103 F.4th 106 (2d Cir. 2024); and then quoting Kravitz v. Purcell, 87 F.4th

111 (2d Cir. 2023)); Allen v. Koenigsmann, 700 F. Supp. 3d 110, 140 (S.D.N.Y. 2023) (“If the

charged official ‘knew the underlying facts but believed (albeit unsoundly) that the risk to which

the facts gave rise was insubstantial or nonexistent,’ then the official did not act with deliberate

indifference.” (quoting Salahuddin, 467 F.3d at 281)).

i. Plaintiff has sufficiently alleged that his injuries constituted an

objectively serious medical need

Construing the Amended Complaint liberally and drawing all permissible inferences in

Plaintiff’s favor, Plaintiff has alleged that he sustained an objectively serious injury as he was

knocked unconscious, suffered severe mouth and jaw pain, broke two bones in his face, and

required a complete jaw wiring and a tooth extraction after falling and forcefully hitting his face

on the toilet stall. See Marino v. Koenigsmann, No. 12-CV-1170, 2014 WL 1239514, at *6

(N.D.N.Y. Mar. 25, 2014) (concluding that the plaintiff’s “allegations that he hit his head,

causing him to fracture his jaw, loose three teeth and be rendered unconscious, in addition to his

claims that he experienced severe pain and difficulty eating and sleeping” were “more than

sufficient to plausibly allege that he suffered from an objectively serious underlying injury”).

Plaintiff has also alleged that Demorcy intentionally denied him treatment for his injuries by

ordering him to return to his housing unit despite overhearing Plaintiff recount the details of his

injury to Dr. Brown and despite hearing Dr. Brown inform Plaintiff that he “had likely suffered a

serious injury to his face/jaw,” “needed to be immediately brought to the medical unit for

evaluation,” and that Dr. Brown would escort him for treatment. (Am. Compl. ¶¶ 56, 58.)

Because Plaintiff ultimately received medical care after Demorcy refused to allow it, the

Court also considers the delay in treatment to determine whether his injury was, “in ‘objective

terms, sufficiently serious.’” Carpenter, 316 F.3d at 185 (quoting Chance, 143 F.3d at 702).

Plaintiff spoke with Dr. Brown and Demorcy ordered him to return to his cell around 8:30 A.M.

or 9:00 A.M. on the morning of August 10, 2022. (See Am. Compl. ¶¶ 53–56.) Plaintiff alleges

that he remained in his cell until between 11:00 A.M. and 12:00 P.M. when a different

corrections officer escorted him to see Dr. Brown again, at which time Dr. Brown said that he

would attempt to get Plaintiff medical attention, which Plaintiff received sometime after 3:45

P.M. when he departed for the hospital. (Id. ¶¶ 61–67.) Based on this sequence of events,

Demorcy’s refusal to allow Plaintiff to be treated delayed Plaintiff’s medical care by at least

three and a half hours. The delay in treatment appears brief but, as the parties agree, (see Defs.’

Mem. 13; Pl.’s Opp’n 12), the length of the delay in treatment alone is not dispositive of an

objectively serious need. See Allen v. N.Y.C. Dep’t of Corr., No. 06-CV-7205, 2010 WL

1644943, at *13 (S.D.N.Y. Mar. 17, 2010) (“The notion that there is a bright line separating

short delays from longer delays and that delays less than a specified amount of time are too brief

to demonstrate deliberate indifference is not reflected in the case law.” (citations omitted)),

report & recommendation adopted, 2010 WL 1631404 (S.D.N.Y. Apr. 19, 2010); see also

Carpenter, 316 F.3d at 186 (noting that “the serious medical need inquiry can properly take into

account the severity of the temporary deprivation alleged by the prisoner”). Although Plaintiff

does not allege directly that the delay in treatment exacerbated his injuries or put him at risk of

greater harm, the Court notes that the second time Plaintiff saw Dr. Brown, he appeared to

indicate for the first time that Plaintiff “had swelling on his lower right face,” (see Am. Compl.

¶ 63), a symptom that could have developed during Plaintiff’s three and a half hour wait in his

cell. Cf. Valdiviezo, 752 F. App’x at 32 (affirming dismissal of claim based on delay in medical

care because, although the plaintiff alleged that he was in pain during the hour-long wait, he did

not allege that the delay exacerbated the injuries from his initial fall).

Regardless, in light of the severity of Plaintiff’s injury and pain as evidenced by Dr.

Brown’s advisement that Plaintiff had likely suffered a serious injury and needed immediate

medical attention and Plaintiff’s subsequent surgery and two-day hospital stay, the Court cannot

conclude at this stage of litigation that the delay was not objectively serious merely because it is

not clear that Plaintiff’s injuries worsened after he was initially denied treatment. See Hunter v.

City of New York, 35 F. Supp. 3d 310, 320 (E.D.N.Y. 2014) (declining to “afford [d]efendants

the benefit of having delayed [p]laintiff’s visit to a medical provider by drawing an inference in

their favor from the fact that [p]laintiff’s [injuries] may not have worsened or improved during

that time”); McMillon v. Davidson, 873 F. Supp. 2d 512, 514 (W.D.N.Y. 2012) (“Severe pain can

itself constitute a serious medical need for Eighth Amendment purposes.” (citations omitted)).

ii. Plaintiff has alleged the subjective component of the deliberate

indifference claim –– that Demorcy acted with a sufficiently culpable

state of mind

As to the subjective prong of the Eighth Amendment deliberate indifference claim,

although close, the Court finds that Plaintiff has sufficiently pleaded that Demorcy consciously

disregarded a substantial risk of harm to Plaintiff. Plaintiff’s allegation that Demorcy heard

Plaintiff tell Dr. Brown “that he had forcefully hit his face on the toilet/desk stall the evening

before on account of the heat and dehydration, that he was in severe facial pain, and that he

needed immediate medical attention, (Am. Compl. ¶ 56), indicates that Demorcy at a minimum

knew Plaintiff was experiencing extreme pain. Mehalick, 2024 WL 4930660, at *7 (“[A]

plaintiff must prove that [the] nonmedical prison personnel intentionally delayed access to

medical care when the inmate was in extreme pain and has made his medical problems known to

the attendant prison personnel . . . .” (second alteration in original)); Bright, 2024 WL 3012043,

at *8 (concluding plaintiff “succinctly and sufficiently state[d] a deliberate indifference claim”

by alleging that he told specifically named guards responsible for his custody and care “of his

condition and the excruciating pain, he was suffering,” and that they “failed to take appropriate

action to get [him] the medical help he required, despite knowledge of the risk to his health”

(internal quotation marks omitted)); Jones v. Rock, No. 12-CV-447, 2013 WL 4804500, at *23

(N.D.N.Y. Sept. 6, 2013) (finding deliberate indifference where corrections officer knew the

plaintiff was in extreme pain and needed dental care and waived away another corrections officer

who tried to take the plaintiff to see a dental provider and stated that “[p]laintiff would see the

dentist last if he saw him at all”).

Moreover, even if Demorcy did not himself believe Plaintiff’s claims, as Plaintiff alleges,

Demorcy heard Dr. Brown advise that Plaintiff “likely suffered a serious injury,” needed

immediate medical evaluation, and he would personally escort Plaintiff for evaluation. (Am.

Compl. ¶ 56.) Based on these allegations, the Court infers that Demorcy knew Plaintiff was

seriously injured and that he needed immediate medical attention. See Matzell, 64 F.4th at 434

(“[O]n a motion to dismiss . . . , ‘the plaintiff is entitled to all reasonable inferences from the

facts alleged, not only those that support his claim, but also those that defeat the immunity

defense.’” (quoting McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004))). Thus, in stating that

Plaintiff “was lying about what happened, that he had probably gotten injured in a fight rather

than as [P]laintiff described, that he was not seriously injured, nor did he need immediate

medical attention and that he needed to return to his unit,” (id. ¶ 58), Plaintiff has alleged that

Demorcy “evince[d] a conscious disregard of a substantial risk of serious harm,’” Mallet, 126

F.4th at 132 (alteration in original), and “deliberately ignore[d] the recommendation of

[Plaintiff’s] treating physician[],” Johnson, 412 F.3d at 404; see, e.g., Crispin, 2023 WL

2931846, at *7 (permitting deliberate indifference claim to proceed where prison official

allegedly ignored mental health provider’s recommendation that plaintiff be sent for mental

health treatment); Raynor, 2021 WL 431457, at *5 (finding prisoner alleged “serious deprivation

of medical care” where he alleged that he had not received physical therapy for his chronic

shoulder condition despite the medical recommendation that he receive treatment); Quinones v.

City of New York, No. 16-CV-985, 2017 WL 1322205, at *9 (S.D.N.Y. Jan. 6, 2017) (finding

allegation that the defendant “officer was expressly informed by a doctor” that plaintiff needed

“immediate corrective surgery” and ignored the recommendation stated a deliberate indifference

claim), report & recommendation adopted, 2017 WL 775851 (S.D.N.Y. Feb. 28, 2017).

Although Demorcy said that Plaintiff was lying and was not severely injured, this

allegation alone does not establish that Demorcy did not act with deliberate indifference,

particularly in light of the allegations that Demorcy disregarded the statements of both Plaintiff

and Dr. Brown regarding Plaintiff’s injuries. The Court also does not infer from this allegation

that Demorcy “believed (albeit unsoundly) that the risk to which the facts gave rise was

insubstantial or nonexistent,” Farmer, 511 U.S. at 844, such that he would be freed from liability

at this stage of litigation. Id. (explaining that “[p]rison officials charged with deliberate

indifference” may escape liability by “show[ing], for example, that they did not know of the

underlying facts indicating a sufficiently substantial danger and that they were therefore unaware

of a danger, or that they knew the underlying facts but believed (albeit unsoundly) that the risk to

which the facts gave rise was insubstantial or nonexistent”); see Hudson v. Heath, No. 12-CV-

1655, 2014 WL 4364897, at *9 (N.D.N.Y. Aug. 29, 2014) (rejecting defendants’ argument that

prison official did not act with deliberate indifference on ground that she “was sincerely, if

unreasonably, convinced that her conduct did not pose a risk of serious harm to [p]laintiff”

because plaintiff sufficiently alleged that the official “consciously [chose] an ‘easier and less

efficacious’ treatment plan” and “[g]iven the need for evidence of [her] knowledge and motives

. . . granting the motion to dismiss would be unjust toward the [p]laintiff” (quoting Chance, 143

F.3d at 703)).

iii. Plaintiff does not sufficiently allege a claim for deliberate indifference

to serious medical needs based on Demorcy’s failure to provide him

additional water for his medication

Plaintiff alleges that Demorcy failed to respond to his requests for additional water before

the overnight lock-in from August 9 to August 10, during which time he sustained injuries from

his bowel movement. (Am. Compl. ¶¶ 42, 44–47.) To the extent Plaintiff is alleging that the

failure to provide additional water constituted Demorcy denying or delaying a serious medical

need for water to take constipation medication, the deliberate indifference claim fails against

Demorcy because Plaintiff does not plausibly allege that Demorcy knew that he needed the water

for his medication to be effective. Plaintiff alleges that:

In fact, in connection with [P]laintiff’s constipation and bowel issues,

BOP medical staff provided plaintiff with several different

medications which would assist him in having normal bowel

movements and less constipation and explicitly advised [P]laintiff

these medications needed to be taken with an abundance of water, and

thus BOP medical staff, [Demorcy] and/or [John Does 1–20] were

aware [P]laintiff needed to be provided with more than just two (2)

sixteen-ounce (16 oz) water bottles during the overnight lock in.

(Am. Compl. ¶ 41.) This allegation does not indicate that Plaintiff or BOP medical staff told

Demorcy, or any other corrections officer, that Plaintiff needed water for his medication.

Therefore, the allegation that Demorcy was aware that he needed the water is not supported by

any factual allegations.8 See Roe, 91 F.4th at 651 (“Although all factual allegations contained in

the complaint are assumed to be true, this rule does not extend ‘to legal conclusions. Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements, do not

suffice.” (citation omitted)); Iqbal, 556 U.S. at 678 (“Nor does a complaint suffice if it tenders

8 To the extent Plaintiff is also alleging that any of John Does 1–20 denied or delayed

Plaintiff’s need for additional water to take his constipation medication, the deliberate

indifference claim against them would fail for the same reason as the claim against Demorcy ––

Plaintiff does not plausibly allege that any correctional officer was aware that he needed the

water for his medication to be effective.

‘naked assertion[s]’ devoid of ‘further factual enhancement.’” (citation omitted and alteration in

original)).

Plaintiff alleges that he was being treated by a doctor for constipation, which supports

that “a reasonable doctor or patient would find the injury important and worthy of treatment,” a

factor that courts have found supports a serious medical need. Charles, 925 F.3d at 86 (quoting

Chance, 143 F.3d at 702). However, the fact that Plaintiff was without adequate water for the

medication prescribed to treat his constipation for the temporary period that the water outages

occurred does not give rise to a deprivation of medical care claim. See Thomas v. Hpopkins, No.

20-CV-9709, 2022 WL 2758489, at *5 (S.D.N.Y. July 14, 2022) (collecting cases and noting

that district courts in the Second Circuit “have held that the denial of a single dose, or even

several doses, of a needed medication is insufficient, without more, to establish a serious delay in

treatment under the Eighth Amendment”). Moreover, courts have found that gastrointestinal

issues similar to Plaintiff’s do not alone plead a claim for a serious medical need for purposes of

an Eighth Amendment deliberate indifference claim absent allegations that the issues were a

“condition of urgency that may result in degeneration or extreme pain,” “significantly affects

daily activities,” or “involves chronic and substantial pain.” Mallet, 126 F.4th at 132 (internal

quotation marks and citations omitted); see Castro v. Lupis, No. 22-CV-152, 2022 WL

21751798, at *4 (D. Conn. June 13, 2022) (plaintiff sufficiently pleaded his rectal pain was a

serious medical need based on allegations that “he was suffering excruciating pain that impacted

his sleep and daily activities,” the pain “prevent[ed] him from sitting and walking normally” and

the condition required surgical correction (alteration in original)); Harnage v. Shari, No. 16-CV-

1576, 2019 WL 7835666, at *5 (D. Conn. Dec. 3, 2019) (plaintiff sufficiently pleaded

constipation was a serious medical need where he alleged the “chronic” condition “caused him

severe pain and bleeding from his rectum” and painful, swelling, and bleeding hemorrhoids).

c. Demorcy is not entitled to qualified immunity

Defendants argue that Demorcy is entitled to qualified immunity because Plaintiff has not

plausibly alleged that Demorcy personally participated “in conduct amounting to deliberate

indifference to [Plaintiff’s] serious medical needs,” (Defs.’ Mem. 6–11), nor that Demorcy

violated a clearly established constitutional right of Plaintiff’s, (id. at 11–14). Defendants argue

that “[w]hile the general right to adequate medical care under the Eighth Amendment is not in

question, it is in no way clear that in the circumstances of this case, every reasonable official

would have understood that [Plaintiff] had an Eighth Amendment right to receive immediate

medical care.” (Id. at 12 (citations omitted)). In support, Defendants contend that it is not

“obvious” that “the smaller portion” of the delay in Plaintiff’s treatment “solely attributable to

[Demorcy] (which is all Demorcy can be held accountable for) or the total delay, which includes

the actions of a number of unidentified officers” was unconstitutional under Supreme Court or

Second Circuit precedent. (Id. at 13.) Defendants also argue that it is not apparent based on the

allegation that Demorcy “actually drew the inference that [Plaintiff] needed immediate care and

ordering him back to his housing unit would place [Plaintiff] at risk of serious harm,” and that

even if Demorcy made this assessment, “it was not clearly unreasonable in the moment” because

Plaintiff “does not allege that his appearance should have made it obvious that he needed

immediate medical assistance, he was holding a conversation with Dr. Brown at the time, and

Dr. Brown apparently did not object to [Demorcy’s] instruction.” (Id. at 13–14.)

Plaintiff argues that the “defense of qualified immunity cannot support the grant of a Rule

12(b)(6) motion” under Second Circuit precedent, (Pl.’s Opp’n 11 (internal quotation marks and

citations omitted)), and contends that “[b]ecause all of defendants’ arguments appear under the

singular headline of qualified immunity, there is no need to address any of their arguments

arguably related to the merits” and “while [D]efendants have made a personal involvement

argument, they have done so under the rubric of qualified immunity, which . . . is inapplicable,”

(Pl.’s Opp’n 9–10). In support, Plaintiff argues that “it is firmly established that the question of

qualified immunity is a mixed question of law and fact,” making “a court’s determination of

qualified immunity at any pretrial stage . . . inappropriate” when “resolution of the qualified

immunity defense hinges upon disputed factual issues, or upon mixed questions of fact and law.”

(Pl.’s Opp’n 11 (internal quotation marks and citations omitted).) He argues that the qualified

immunity defense is inapplicable because “Eighth Amendment Claims for deliberate indifference

require a knowing disregard of constitutional rights.” (Id. at 7.) In addition, Plaintiff argues that

plausible allegations of “deliberate indifference necessarily precludes a finding of qualified

immunity” and that it “logically follows that the very nature of the deliberate indifference

standard forecloses entitlement to qualified immunity” and that a “find[ing] [of] that level of

indifference” would be “enough” to effectively “preclude qualified immunity.” (Id. at 7–9

(alterations in original and citations omitted).)

“Any claim for damages against officials in their individual capacities . . . ‘implicates the

doctrine of qualified immunity.’” Tanvir v. Tanzin, 120 F.4th 1049, 1059 (2d Cir. 2024) (quoting

Tripathy, 103 F.4th at 116). “That doctrine ‘shields officials from civil liability so long as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Id. (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015));

see also Cerisier v. City of New York, No. 22-1756, 2023 WL 4618352, at *1 (2d Cir. July 19,

2023) (“The doctrine of qualified immunity shields government officials from suit unless (1) ‘the

official violated a statutory or constitutional right,’ and (2) ‘the right was “clearly established” at

the time of the challenged conduct.’” (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011));

McKinney v. City of Middletown, 49 F.4th 730, 738 (2d Cir. 2022) (“The doctrine of qualified

immunity ‘shields [officers] acting in their official capacity from suits for damages unless their

actions violate clearly-established rights of which an objectively reasonable official would have

known.’” (quoting Jones v. Parmley, 465 F.3d 46, 55 (2d Cir. 2006))). When an official invokes

the qualified immunity defense, courts must “apply a two-step analysis” under which a

defendant-official is shielded “from money damages unless the ‘plaintiff pleads facts showing

(1) that the official violated a statutory or constitutional right, and (2) that the right was “clearly

established” at the time of the challenged conduct.’” Tanvir, 120 F.4th at 1060 (quoting

Ashcroft, 563 U.S. at 735); see Pal v. Canepari, No. 23-730, 2024 WL 4341360, at *1 (2d Cir.

Sept. 30, 2024) (“Qualified immunity can shield defendants from constitutional claims where

their conduct ‘does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” (quoting White v. Pauly, 580 U.S. 73, 78–79 (2017)));

Soukaneh v. Andrzejewski, 112 F.4th 107, 115 (2d Cir. 2024) (“Qualified immunity shields

officials ‘when [their] conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” (quoting White, 580 U.S. at 78–79));

Tripathy, 103 F.4th at 116 (“The doctrine of qualified immunity shields officials from civil

liability so long as their conduct does not violate clearly established statutory or constitutional

rights.” (quoting Mullenix, 577 U.S. at 11)).

“To determine whether a law is clearly established, [the court] considers ‘the specificity

with which a right is defined, the existence of Supreme Court or Court of Appeals case law on

the subject, and the understanding of a reasonable officer in light of preexisting law.’” Matzell,

64 F.4th at 434 (quoting Terebesi v. Torreso, 764 F.3d 217, 231 (2d Cir. 2014)). “[T]here does

not need to be Second Circuit caselaw explicitly holding that a particular condition is sufficiently

serious to find that ‘[t]he right to be free from such a condition is clearly established.’” Mallet,

126 F.4th at 138 n.11 (quoting Collymore, 74 F.4th at 31); see Tripathy, 103 F.4th at 116 (“We

do not require a case directly on point, but existing precedent must have placed the statutory or

constitutional question beyond debate.” (quoting Ashcroft, 563 U.S. at 741)). “[Q]ualified

immunity depends on the facts known to the official at the time of the alleged violation,” such

that “‘[e]ven when [a court] find[s] a right clearly established,’ defendants are still immune from

damages liability if ‘reasonable persons in their position would not have understood that their

conduct was within the scope of the established prohibition.’” Tanvir, 120 F.4th at 1060 n.6

(first alteration in original) (quoting Wiggins v. Griffin, 86 F.4th 987, 994 (2d Cir. 2023)). “[I]f

officers of reasonable competence could disagree on th[e] issue, immunity should be

recognized.” Naumovski v. Norris, 934 F.3d 200, 210 n.12 (2d Cir. 2019) (first alteration in

original) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)); see Tripathy, 103 F.4th at 116

(“[A] right must be sufficiently clear that every reasonable official would have understood that

what he is doing violates that right.” (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012));

Nazario, 2023 WL 7147386, at *2 (“For a constitutional right to be clearly established, it must

be ‘clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’”

(quoting Saucier v. Katz, 533 U.S. 194, 202 (2001))).

“[T]he Supreme Court has ‘stressed the importance of resolving [qualified] immunity

questions at the earliest possible stage in litigation.’” Tanvir, 120 F.4th at 1060 n.6 (first

alteration in original) (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)). Although the

Second Circuit has recognized “that a qualified immunity defense ‘faces a formidable hurdle’ at

the motion to dismiss stage ‘and is usually not successful,’” Matzell, 64 F.4th at 434 (quoting

Sabir v. Williams, 52 F.4th 51, 64 (2d Cir. 2022)), “‘[l]ike other affirmative defenses, official

immunity may be resolved’ at that stage ‘when the facts establishing it are apparent on the face

of the complaint,’” Tanvir, 120 F.4th at 1060 n.6 (alteration in original) (quoting Bangs v. Smith,

84 F.4th 87, 95 (2d Cir. 2023)). “Where a defendant presents a qualified immunity defense on a

motion to dismiss . . . , ‘the plaintiff is entitled to all reasonable inferences from the facts alleged,

not only those that support his claim, but also those that defeat the immunity defense.’” Matzell,

64 F.4th at 434 (quoting McKenna v. Wright, 386 F.3d 432, 435–36 (2d Cir. 2004)); see also

Tillman v. Hoffman, No. 23-265, 2023 WL 7180675, at *1 (2d Cir. Nov. 1, 2023) (same).

i. Plaintiff has sufficiently alleged that Demorcy violated his Eighth

Amendment right to be free from cruel and unusual punishment

Defendants are not entitled to qualified immunity on the basis that Demorcy did not

violate a constitutional right. As discussed in Section II.b.i–ii, supra, Plaintiff sufficiently

alleges that Demorcy was deliberately indifferent to Plaintiff’s serious need for medical care for

the injuries he sustained following falling and hitting his head on the toilet stall. Deliberate

indifference to the serious medical needs of an incarcerated person violates the person’s Eighth

Amendment right not to have “cruel and unusual punishment inflicted.” See Estelle, 429 U.S. at

104–05; Smith, 2024 WL 4746554, at *2; Darby, 14 F.4th at 128; Nazario, 2023 WL 7147386, at

*2; Walker, 45 F.4th at 610; Gibson, 2023 WL 3295843, at *2.

ii. Plaintiff’s right to medical care was clearly established at the time of

the challenged conduct

Defendants are not entitled to qualified immunity on the basis that Plaintiff’s violated

right was not clearly established at the time of the challenged conduct. It was well-established

by August 9, 2022 that “deliberate indifference to serious medical needs of prisoners” in

violation of the Eighth Amendment encompasses a “prison guard[] . . . intentionally denying or

delaying access to medical care.” Estelle, 429 U.S. at 104–05. Moreover, Plaintiff alleges facts

in the Amended Complaint that, if proven, support the inference that a reasonable officer in

Demorcy’s position would have understood that refusing to allow Plaintiff to be treated for his

injuries was unlawful. See Tanvir, 120 F.4th at 1060 n.6. Specifically, as discussed in Section

II.b.i–ii, supra, Plaintiff sufficiently alleges in the Amended Complaint that he sustained an

objectively serious injury from forcefully hitting his face on the toilet stall and that Demorcy

consciously disregarded Plaintiff’s need for treatment despite hearing Plaintiff recount the details

of his injury and pain to Dr. Brown and despite Dr. Brown informing Plaintiff that he “had likely

suffered a serious injury to his face/jaw” and “needed to be immediately brought to the medical

unit for evaluation.” (Am. Compl. ¶¶ 55–60.) See Bright, 2024 WL 3012043, at *8 (finding

plaintiff “state[d] a deliberate indifference claim” by alleging that he told specifically named

guards responsible for his custody and care “of his condition and the excruciating pain” and his

“suffering,” and that they “failed to take appropriate action to get [him] the medical help he

required, despite knowledge of the risk to his health” (internal quotation marks omitted)).

While discovery may ultimately reveal additional facts that could demonstrate that a

reasonable officer in Demorcy’s position might not have understood his conduct to be unlawful,

the facts alleged in the Amended Complaint are sufficient to infer that a reasonable person in

Demorcy’s position would have known. See Walker v. Wright, No. 17-CV-425, 2018 WL

2225009, at *9 (D. Conn. May 15, 2018) (concluding that the plaintiff had “sufficiently alleged

facts that state a claim of violation of clearly established law” because allegations that the

defendants “should have known that [plaintiff’s] symptoms required treatment and, without

treatment, could pose an excessive risk to [his] health” permitted “the reasonable inference that

all reasonable officials would have known that they were violating a clearly established right”);

Est. of Rodriguez v. Simon, No. 06-CV-125, 2007 WL 2154238, at *9 (D. Vt. Mar. 30, 2007)

(denying qualified immunity defense on a motion to dismiss because the amended complaint

sufficiently alleged that the conduct of the defendant officials “was deliberatively indifferent to

[the plaintiff’s] serious medical needs” and the qualified immunity defense “would benefit from

discovery to flesh out more thoroughly the circumstances and motivations of [the officials’]

conduct”), report & recommendation adopted sub nom., 2007 WL 2107542 (D. Vt. July 19,

2007); see also Hyman v. Abrams, 630 F. App’x 40, 42 (2d Cir. 2015) (affirming denial of

motion to dismiss on the ground of qualified immunity but noting that “defendant may reali[z]e

the qualified immunity defense at successive stages” (citing Behrens v. Pelletier, 516 U.S. 299,

307–08 (1996))).

III. Conclusion

For the foregoing reasons, the Court denies Defendants’ motion to dismiss the deliberate

indifference to Plaintiff’s medical needs claim against Demorcy. The Court denies as moot

Defendants’ motion to dismiss the FTCA claims against the United States for deliberate

indifference based on Plaintiff’s withdrawal of the claims. Plaintiff may proceed with his FTCA

claims against the United States for negligence, negligent failure to protect, and “denial or delay

of medical care and/or medication” and his claims against John Does 1–20.

Dated: March 24, 2025

Brooklyn, New York

SO ORDERED:

/s/MKB

MARGO K. BRODIE

United States District Judge