Carter v. Broome Cnty.

• Decision Date: 21 August 2019
• Docket Number: 9:16-CV-422
• Citation: 394 F.Supp.3d 228
• Parties: Rose CARTER, as Administrator of the Estate of Salladin Barton, Plaintiff, v. BROOME COUNTY, David Harder, Sheriff, Broome County, Mark Smolinsky, Administrator; Broome County Jail, Correctional Medical Care, Inc., Emre Umar, President, Correctional Medical Care, Inc., Maria Carpio, Chief Executive Officer, Correctional Medical Care, Inc., John Does 4-6, Employees of Broome County Sheriff's Department, Mahmood Butt, Florante Tinio, Katelyn Claire, Sheena Fenescey, and Morganne Shute, Defendants.
• Court: U.S. District Court — Northern District of New York

394 F.Supp.3d 228

Rose CARTER, as Administrator of the Estate of Salladin Barton, Plaintiff,

v.BROOME COUNTY, David Harder, Sheriff, Broome County, Mark Smolinsky, Administrator; Broome County Jail, Correctional Medical Care, Inc., Emre Umar, President, Correctional Medical Care, Inc., Maria Carpio, Chief Executive Officer, Correctional Medical Care, Inc., John Does 4-6, Employees of Broome County Sheriff's Department, Mahmood Butt, Florante Tinio, Katelyn Claire, Sheena Fenescey, and Morganne Shute, Defendants.

9:16-CV-422

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

Signed August 21, 2019

LAW OFFICES OF ELMER ROBERT KEACH, III, P.C., Attorneys for Plaintiff, One Pine West Plaza, Suite 109, Albany, NY 12205, OF COUNSEL: ELMER R. KEACH, III, ESQ., MARIA K. DYSON, ESQ.

BROOME COUNTY ATTORNEY'S OFFICE, Attorneys for Defendants Broome County, David Harder, and Mark Smolinsky, Broome County Office Building, 60 Hawley Street, P.O. Box 1766, Binghamton, NY 13902, OF COUNSEL: ROBERT G. BEHNKE, ESQ., JENNIFER L. SUWAK, ESQ.

STEINBERG, SYMER LAW FIRM, Attorneys for Defendants Correctional Medical Care, Inc., Emre Umar, Maria Carpio, Mahmood Butt, Florante Tinio, Katelyn Claire, Sheena Fenescey, and Morganne Shute, 27 Garden Street, Poughkeepsie, NY 12601, OF COUNSEL: JONATHAN E. SYMER, ESQ.

MEMORANDUM–DECISION and ORDER

DAVID N. HURD, United States District Judge

I. INTRODUCTION

On April 13, 2016, plaintiff Rose Carter ("Carter" or "plaintiff"), administrator of the Estate of Salladin Barton ("Barton" or "decedent"), filed this 42 U.S.C. § 1983 action against defendants Broome County (the "County"), County Sheriff David Harder ("Sheriff Harder"), County Jail Administrator Mark Smolinsky ("Administrator Smolinsky"), Correctional Medical Care, Inc. ("CMC"), CMC President Emre Umar ("President Umar"), CMC Chief Executive Officer Maria Carpo ("CEO Carpo"), Registered Nurse Kaye Been ("Nurse Been"), Registered Nurse Dawn Dames ("Nurse Dames"), Licensed Practical Nurse Karen Dickerson ("LPN Dickerson"), Registered Nurse Hope R. ("Nurse Hope"), Registered Nurse Kathy Scope ("Nurse Scope"), Registered Nurse Judy Olsa ("Nurse Olsa"), three John Doe officers employed by the County Sheriff's Office (the "County Does"), and three John Does employed by CMC (the "CMC Does").

Following some procedural wrangling in which certain groups of named defendants answered Carter's pleading while other filed motions to dismiss it, plaintiff sought and received a series of extensions of time before amending her complaint as of right. See FED. R. CIV. P. 15(a)(1).

As relevant here, Carter's amended pleading (1) eliminated the six nurses and the three CMC Does¹ as defendants in this action; and (2) added claims against County Jail physician Mahmood Butt ("Doctor Butt"), County Jail psychiatrist Florante Tinio ("Doctor Tinio"), and three County Jail social workers: Katelyn Claire ("LMSW Claire"), Sheena Fenescey ("LMSW Fenescey"), and Morganne Shute ("LMSW Shute").

Carter's six-count amended complaint principally alleged that defendants violated Barton's Eighth Amendment rights while he was being held at the County Jail. According to plaintiff, Doctor Butt, Doctor Tinio, LMSW Claire, LMSW Fenescey, and LMSW Shute (collectively the "medical defendants") were deliberately indifferent to an increasingly serious medical problem that led to decedent's premature death (First Cause of Action).

Carter's amended complaint further alleged that the County Does, employed as security staff at the Jail, violated Barton's Eighth Amendment rights by repeatedly assaulting him in response to behavioral problems that manifested from the constitutionally inadequate medical care he received in the period before his death (Second Cause of Action).

Carter's pleading also asserted § 1983 claims for municipal liability against the County and CMC and § 1983 claims for supervisory liability against Sheriff Harder, Administrator Smolinsky, President Umar, and CEO Carpio. Plaintiff alleged that CMC and its leadership knowingly implemented, and that the County policymaking officials knew of and failed to correct, an ongoing policy of providing constitutionally inadequate medical care to inmates at the County Jail as a cost savings measure (Third Cause of Action).

Finally, Carter's pleading asserted state law claims against all of the named defendants for conscious pain and suffering (Fourth Cause of Action), against the County and "all Correctional Medical Care defendants" for wrongful death (Fifth Cause of Action), and against "all Broome County defendants" for assault, battery, emotional distress, and negligent supervision (Sixth Cause of Action).

On November 2, 2016, the County, Sheriff Harder, Administrator Smolinsky, and the County Does (collectively the "County defendants") answered Carter's amended complaint. Dkt. No. 41. However, CMC, President Umar, and CEO Carpio (the "CMC defendants") moved under Federal Rule of Civil Procedure ("Rule") 12(b)(6) seeking to dismiss plaintiff's operative pleading for failure to state any viable federal claims against them.² Dkt. No. 39. Following several requests for extensions of time, the medical defendants³ also moved to dismiss plaintiff's claims against them. Dkt. No. 50.

On September 29, 2017, a Memorandum–Decision & Order (the "September 29 MDO") granted in part and denied in part the two pending motions. The September 29 MDO dismissed the individual-capacity Eighth Amendment claims against LMSW Claire, LMSW Fenescey, and LMSW Shute because Carter's amended complaint did not allege sufficient factual material to plausibly conclude that any of these three defendants engaged in any deliberately indifferent behavior that violated Barton's constitutional rights.

The September 29 MDO also dismissed any individual-capacity Eighth Amendment claims against President Umar and CEO Carpio based on direct or supervisory liability under § 1983, since plaintiff failed to allege either of these two defendants were "personally involved" in any of the incidents that gave rise to decedent's eventual death.

However, the September 29 MDO left for discovery against the CMC defendants and the medical defendants Carter's (1) deliberate medical indifference claim against Doctor Butt and Doctor Tinio (First Cause of Action); (2) municipal liability claim against CMC based on that alleged indifference (Third Cause of Action); (3) state law claim for conscious pain and suffering (Fourth Cause of Action); (4) state law claim for wrongful death (Fifth Cause of Action); and (5) state law claims for assault, battery, emotional distress, and negligent supervision (Sixth Cause of Action). Of course, none of plaintiff's various claims were dismissed against any of the County defendants, since they answered plaintiff's amended complaint rather than moving for dismissal.

Following the completion of discovery, the County defendants moved under Rule 56 for summary judgment on all of Carter's claims against them. According to the County defendants, plaintiff (1) has failed to establish Sheriff Harder's or Administrator Smolinsky's "personal involvement" in any of the alleged misconduct; (2) cannot show that Barton's mistreatment and death occurred as a result of any policy or custom attributable to the County; and (3) did not marshal sufficient facts to demonstrate that the County Does used excessive force against decedent at any time. The County defendants further argue that plaintiff's various state law claims must be dismissed because she failed to serve a timely notice of claim.

The motion has been fully briefed and will be considered on the basis of the submissions without oral argument.

II. BACKGROUND

For at least a decade before his premature death, Barton suffered from a recurrent, severe, well-documented mental illness. Defs.' Statement of Material Facts ("Defs.' Facts"), Dkt. No. 104-11 ¶ 4. From June 10, 2013 until January 14, 2015, the County held decedent at the Jail. Id. ¶ 1. The parties' expert witnesses disagree on what "ultimately caused" decedent's passing, but both opine that it resulted from "a medical-related issue." Id. ¶ 3.

On November 15, 2014, and again on December 11, 2014, County Jail officials took Barton to Wilson Memorial Regional Medical Center, where he was diagnosed with hyponatremia

; i.e. , low sodium blood levels, a well-known and well-documented side effect of Trileptal, a prescription medication decedent took to manage certain aspects of his ongoing mental illness. See Pl.'s Counter-Statement of Material Facts ("Pl.'s Facts"), Dkt. No. 114 ¶ 1; see also Am. Compl., Dkt. No. 33 ¶ 17.

On both occasions, the hospital advised the County Jail to restrict and monitor Barton's water intake, and that further blood work would be prudent to better evaluate decedent's medical condition. Pl.'s Facts ¶ 2. During the second hospitalization, the hospital recommended Barton undergo a thyroid ultrasound as well. Id.

In spite of these warnings, Doctor Butt did not restrict Barton's water intake. Pl.'s Facts ¶ 3. To the contrary, medical staff and other inmates continued to observe decedent having regular access to water, and in fact decedent "was known for drinking copious amounts of powdered drinks." Id. ¶ 4. The Jail never conducted any blood testing on decedent. Id. Nor did it conduct a thyroid ultrasound. Id. ¶ 5. According to a preliminary report attached to the operative pleading, decedent eventually died from an untreated medical condition caused by the "prolonged prescribed use of Trileptal

and excessive water intake." Ex. B to Am. Compl.

On several occasions, the New York State Commission of Correction (the "Commission"), the state oversight agency⁴ responsible for evaluating all state correctional facilities, county jails, local police lock-ups, and secure centers, has recommended that various counties, include Broome County, terminate their medical services contracts with CMC as a result of inmate deaths. Pl.'s Facts ¶ 7. Indeed, Sheriff Harder...