Dilworth v. Goldberg

• Decision Date: 13 September 2012
• Docket Number: No. 10 Civ. 2224(JMF)(GWG).,10 Civ. 2224(JMF)(GWG).
• Parties: Anthony G. DILWORTH and Patricia Dilworth, Plaintiffs, v. Randy GOLDBERG, M.D., et al., Defendants.
• Court: U.S. District Court — Southern District of New York

914 F.Supp.2d 433

Anthony G. DILWORTH and Patricia Dilworth, Plaintiffs,

v.Randy GOLDBERG, M.D., et al., Defendants.

No. 10 Civ. 2224(JMF)(GWG).

United States District Court, S.D. New York.

Sept. 13, 2012.

Michael Anthony Deem, Michael A. Deem, P.L.L.C., Mt. Vernon, NY, for Plaintiffs.

Darius Patrick Chafizadeh, Harris Beach PLLC, Adam Rodriguez, Reginald James Johnson, White Plains, NY, for Defendants.

OPINION AND ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge.

Anthony Dilworth (“Dilworth”) and Patricia Dilworth (“Patricia”) (together, “the Dilworths” or “plaintiffs”) have brought this action arising out of Dilworth's confinement in the Westchester County Jail (the “WCJ”). They allege various federal and state claims against New York Medical College (“NYMC”), Westchester County, the Westchester County Health Care Corporation (“WCHCC”), and 47 individuals.¹

In a previous ruling, certain claims alleged in plaintiffs' second amended complaintwere dismissed, including all claims against NYMC. Plaintiffs have moved this Court for leave to amend their complaint for a third time. The County Defendants have opposed plaintiffs' motion to amend. While it is not a party at this time, NYMC submitted a memorandum of law in opposition to plaintiffs' motion. For the reasons discussed below, plaintiffs' motion to amend is granted in part and denied in part.

I. BACKGROUNDA. Procedural History

On May 22, 2009, Anthony Dilworth filed a pro se complaint regarding his treatment at the WCJ under a separate docket number. See Complaint, filed May 22, 2009 (Docket # 2 in 09 Civ. 4810). Dilworth retained counsel in September 2009 and voluntarily dismissed his pro se complaint under that docket on October 6, 2009. See Voluntary Dismissal, filed Oct. 6, 2009 (Docket # 8 in 09 Civ. 4810).

On March 15, 2010, the Dilworths filed the complaint in the instant action. See Complaint, filed Mar. 15, 2010 (Docket # 2). On April 2, 2010, plaintiffs amended their complaint for the first time. See First Amended Complaint, filed Apr. 2, 2010 (Docket # 8). On September 14, 2010, the Court granted plaintiffs leave to file a second amended complaint, see Order, filed Sept. 14, 2010 (Docket # 133), and plaintiffs filed their second amended complaint on September 17, 2010, see Second Amended Complaint, filed Sept. 17, 2010 (Docket # 134) (“2d Am. Compl.”).

The defendants moved to dismiss plaintiffs' second amended complaint. The motions of NYMC and two other defendants were granted in their entirety, and the County Defendants' motion was granted in part and denied in part. SeeDilworth v. Goldberg, 2011 WL 4526555, at *11 (S.D.N.Y. Sept. 30, 2011). Plaintiffs filed the instant motion to amend on January 24, 2012.² The County Defendants opposed the motion.³ NYMC also submitted a memorandum of law and affidavit in opposition to plaintiffs' motion to amend the second amended complaint.⁴B. Facts

The following is a summary of the allegations in the 89–page proposed third amended complaint. These allegations are assumed to be true for the purpose of resolving the instant motion.

1. Initial Injuries

From October 3, 2008 through September 23, 2009, Anthony Dilworth, who is African–American, was a pretrial detainee in the WCJ. See Proposed Verified Third Amended Complaint, dated Jan. 2012 (annexed as Ex. 1 to Deem Decl. 1) (“3d Am. Compl.”) ¶¶ 13, 64. On December 16, 2008, a “trustee” of the WCJ spilled liquid wax on the floor of the WCJ. Id. ¶ 66(a). No caution signs were placed in the area, id. ¶ 66(b), and no correctional officer was in position to warn passersby of the hazard because the officer assigned to the area had quit his post without proper authorization, id. ¶ 66(c). While walking down the hallway, Dilworth slipped and fell on the wax, “suffered severe injuries to his head, back, and right arm, and lost consciousness due to the fall.” Id. ¶ 66(d).

After the fall, Malfer and Birrittella “happened upon” Dilworth, who was then lying on the floor “in obvious physical distress and severe pain.” Id. ¶ 66(e). Instead of calling an emergency code, “Malfer instructed other inmates to assist Mr. Dilworth to the WCJ's infirmary, in direct contravention to [Westchester County Department of Correction (“DOC”) ] customs, policies, and procedures.” Id. ¶¶ 66(g)-(h). Klivans, Rogers, James, Kadel, Malfer, and Birrittella were in the infirmary when Dilworth arrived. Id. ¶ 66(j). James gave Dilworth a “cursory” examination, id. ¶ 66( l ), and “deliberately understated and inaccurately documented Mr. Dilworth's actual medical condition,” id. ¶ 66(m). Dilworth was released from “medical care in violation of rules, regulations, and policies governing the WCJ.” Id. ¶ 66(m).

Dilworth tried to return to his bed, but Rogers ordered him to attend a previously scheduled visit with Patricia and “threatened to charge him with disobeying a direct order if he did not comply.” Id. ¶ 66( o ). Dilworth visited with Patricia. See id. ¶ 66(r). Dilworth's injuries were immediately apparent to Patricia, a nurse, and various correction officers. See id. ¶¶ 66(p), (r), (s), (u), (w). At no time, however, was a “code” called or was Dilworth provided with emergency medical care. Id. ¶ 66(x).

After meeting with his wife, Dilworth was “brought to his bed in a wheelchair and ... [was] left to his own devices, in direct contravention to controlling emergency medical procedures, and rules, regulations, and policies governing the WCJ.” Id. ¶ 66(y). Rogers went to Dilworth and demanded that he sign “fraudulent paperwork,” which stated that Dilworth was the cause of his own accident and which would have “effectively waiv[ed] all legal claims against Westchester County, Malfer and others.” Id. ¶ 66(z).

2. Ensuing Events

The next day, December 17, 2008, Dilworth was visited by Klivans, Malfer, Rogers, Kenney, Williams, Alexander, James, Kadel, and Dr. Goldberg. Id. ¶ 67(a). Dilworth informed the group that “he could not breathe and suffered from extreme back pain.” Id. ¶ 67(c). Dilworth was carried, placed in a wheelchair, and taken to the WCJ's medical clinic. Id. ¶¶ 67(e)-(f). Dilworth was unable to control his bowels and bladder, id. ¶ 67(g), and his “leg and arm shook uncontrollably,” id. ¶ 67(h). “Kadel lifted Mr. Dilworth's shirt and discovered [that] he had sustained a chemical burn from the floor wax he fell in the day prior.” Id. ¶ 67(j). At no time was Dilworth “transported to qualified emergency medical personnel, or otherwise provided access to them.” Id. ¶ 67(i).

Dr. Goldberg examined Dilworth's back and asked Rogers to view it as well. Id. ¶ 67(k). Dr. Goldberg and Rogers then proceeded to have a private conversation, id. ¶ 67( l ), in which a “conspiracy to deny Dilworth all federal and state rights was spawned ... in order to cover up Malfer's and Birrittella's original misconduct,” id. ¶ 67(m). Dilworth's medical records were falsified, see id. ¶¶ 67(p)-(r), and officers prevented him from being transported to a hospital, despite the fact that a sergeant told him that he should have been taken to one, id. ¶¶ 67(n), (t), (u), (w). Instead, Dilworth was transported to J2 Dorm, “a non-handicap accessible housing unit,” where Dilworth was left in a bed “in direct contravention to controlling emergency medical procedures, rules, regulations, and policies governing the WCJ.” Id. ¶ 67(u). “Upon arrival at J2 Dorm the correction officer on duty stated to Rogers, James and Kadel that Mr. Dilworth should be in the hospital, and J2 Dorm was not the proper housing area for a handicapped inmate.” Id. ¶ 67(w) (internal quotation marks omitted).

3. Events in J2 Dorm

From December 17, 2008 through December 22, 2008, Dilworth was denied meals on several occasions, see id. ¶¶ 68(a), 71(b); was not able to take a shower, see id. ¶¶ 68(b)-(c); and was refused pain medication, see id. ¶ ¶ 71(d)-(e), 105(a). “Mr. Dilworth was made to lie in his own feces and urine for five days due to his inability to ambulate and the denial of all medical aids, including a portable urinal.” Id. ¶ 74. Dilworth's request for a wheelchair was ignored and he was forced to walk with crutches, see id. ¶¶ 67(s), 75(e)-(f), which were eventually confiscated by Rogers, id. ¶¶ 75(a)-(b). During this time, Dilworth was not permitted to file sick call slips or grievances. See id. ¶¶ 67(y), 69(a)-(b), 71(a), 75(g), 79(d). Dilworth was repeatedly told by Rogers and other correction officers that he was being denied treatment per Rogers' orders. See id. ¶¶ 75(g)-(j), 75(r)(ii); see also id. ¶¶ 69(d), 97(h)-(n), 133(b). Rogers threatened Dilworth and told him not to file grievances. See id. ¶¶ 66( o ), 75(g), 149(a).

Patricia made visits to the WCJ on December 23, 2008 and on December 27, 2008. See id. ¶¶ 78(a), 83(a). On both occasions, “she waited for an extended period of time, but [Dilworth] never came to see her.” Id. ¶¶ 78(b), 83(b). Patricia visited the WCJ again on December 30, 2008, and was able to visit with her husband, but when he arrived he was crying due to extreme pain and his “hand shook uncontrollably.” Id. ¶¶ 84(a)-(c). During a subsequent visit with Patricia, Dilworth lost control of his bladder in her presence. Id. ¶ 85(a).

While in J2 Dorm, multiple correction officers told Dilworth not to submit any more grievances or otherwise refused to accept grievances, see id. ¶¶ 79(a)-(b), 79(d), 92(b), 92(g), 100(b), and Dilworth's subsequent requests for sick call slips and grievance forms were denied, see id. ¶¶ 110(a)-(c), 117(a)-(b), 166(a)-(b); see also id. ¶ 133(b) (“Rogers also instructed Reyes–Amariles and other correction officers that if Mr. Dilworth asked for ‘anything’ their answer was to be ‘No, just no.’ ”). Dilworth “subsequently made copies of his completed grievances and forwarded them to [Patricia]” who sent the grievances to the New York State Commission of Correction (“Commission”). Id. ¶¶ 80–81; see also id. ¶ 36. Dilworth won one grievance submitted to the Commission and...