ColóN v. N.Y. State Dep't of Corr.
| Decision Date | 15 September 2017 |
| Docket Number | No. 15 Civ. 7432 (NSR),15 Civ. 7432 (NSR) |
| Parties | ARMANDO COLÓN, Plaintiff, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION; WLADYSLAW SIDOROWICZ, Sullivan Correctional Facility Medical Director; SULLIVAN CORRECTIONS OFFICERS "JOHN and/or JANE DOES" 1, 2, 3, etc.; SULLIVAN CORRECTIONAL FACILITY MEDICAL OFFICIALS "JOHN and/or JANE DOES" 1, 2, 3, etc.; ASHIT PATEL, M.D., all of whom are sued in their individual capacities, and ALBANY MEDICAL CENTER, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Armando Colón brings this action pursuant to 42 U.S.C. § 1983, Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., the Rehabilitation Act of 1973 ("RA"), 29 U.S.C. §§ 701 et seq., and New York state tort law, against the New York State Department of Corrections and Community Supervision ("DOCCS"), Sullivan Correctional Facility ("Sullivan") Medical Director Wladyslaw Sidorowicz, unknown "John or Jane Doe" Sullivan Correctional Officers ("Sullivan CO Does"), and unknown "John or Jane Doe" Sullivan Medical Officials ("Sullivan Medical Does") (collectively, "State Defendants"); Albany Medical Center ("AMC"), and Ashit Patel, M.D. (collectively, "Medical Defendants"). Specifically, Plaintiff alleges (1) violations of his Eighth and Fourteenth Amendment Rights by Sidorowicz and the Sullivan Does; (2) violations of the ADA and the RA by DOCCS; (3) medical malpractice and (4) negligence by Sidorowicz, the Sullivan Medical Does, AMC, and Patel. Thus, Plaintiff's federal claims involve only the State Defendants, while his state law claims implicate both the State Defendants and the Medical Defendants.
Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), all Defendants have moved to partially dismiss the Amended Complaint. For the following reasons, Defendants' motions to dismiss are GRANTED in part and DENIED in part.
Plaintiff, a 75 year-old visually-impaired incarcerated inmate at Sullivan Correctional Facility, claims that on September 22, 2013, he was assaulted by an unknown inmate as he was being escorted from his cell in the Sensorial Disabled Unit to the Sullivan infirmary. (Am. Compl. ("AC") ¶ 2.) At the time of the incident, Plaintiff, who is legally blind, was being escorted by Sullivan Corrections Officer Juan Martinez and an inmate at Sullivan, Martin Hodge, who "assisted visually impaired inmates through the facility." (Id.) As Plaintiff was being escorted to the infirmary, he was "approached, punched, and knocked unconscious by an unknown incarcerated person." (Id. ¶ 25.)
At the time of the incident, Plaintiff was in "keeplock status," which is designed to serve as a "form of punishment where incarcerated people are confined to their cells for approximately 23 hours a day and lose certain privileges." (Id. ¶ 22.) Plaintiff alleges that DOCCS hasimplemented a policy of making inmates face the wall whenever an inmate assigned to other in-prison punishment programs, such as the Special Housing Unit ("SHU") or Correctional Alternatives Program ("CAR"), is being transported through the facility. (Id. ¶¶ 19-20.) But because Plaintiff was "keeplock status," rather than in the SHU or CAR, he was not afforded that same benefit while being transported. (Id. ¶¶ 21-23.) Thus, Plaintiff contends that "[b]ut for DOCCS failing to establish a policy assuring the safe transportation of visually impaired incarcerated people on keeplock status, Plaintiff would not have been assaulted by the unknown inmate," making "Defendants' failure to accommodate Plaintiff's disability [] the proximate cause of [Plaintiff's] injury." (Id. ¶¶ 63-64.)
As a result of the attack, Plaintiff sustained a number of injuries, including multiple facial fractures, and was taken to Catskill General Hospital ("Catskill"). (Id. ¶¶ 26-28.) After receiving a CT scan at Catskill, Plaintiff was subsequently transferred to Defendant Albany Medical Center. (Id. ¶ 29.) Doctors at AMC informed Plaintiff that his injuries would require surgery, but the surgery could not be performed until the swelling to his face was reduced. (Id. ¶ 31.) He was then transferred back to Sullivan.
Plaintiff returned to AMC on September 27, 2013, five days after the incident, so that Defendant Patel could perform facial reconstructive surgery. (Id. ¶ 34.) The reconstructive surgery included "implantation in Plaintiff's right eye-socket and right cheekbone." (Id.) The following day, Plaintiff was discharged from AMC and returned to the Sullivan infirmary, where he stayed for an extended period of time. (Id. ¶ 35.)
Plaintiff alleges that he complained to Defendant Sidorowicz several weeks after the surgery about "excruciating pain on the right side of his face, swelling to the right side of his face, and difficulty chewing food on the right side of his mouth." (Id. ¶ 37.) Nevertheless, notuntil two months after his surgery, in December 2013, was Plaintiff transferred to Coxsackie Correctional Facility's Regional Medical Unit to be examined by Dr. Richard Agag. (Id. ¶¶ 39-40.) During that examination, Dr. Agag discovered that the metallic hardware installed by Patel in Plaintiff's cheekbone "had ripped through the upper right side of Plaintiff's mouth." (Id. ¶ 41.) Dr. Agag then recommended an emergency surgery in order to remove the protruding hardware. (Id. ¶ 42.)
On January 29, 2014, Defendant Patel performed a second surgery to remove the hardware. (Id. ¶ 43.) After that surgery, Plaintiff contends that he continued to complain to Sullivan Corrections Officers and Medical Officers, including Defendant Sidorowicz, about "excruciating pain on the right side of his face, swelling to the right side of his face, and difficulty chewing food on the right side of his mouth." (Id. ¶ 45.) In April 2014, again months later, Plaintiff returned to AMC where he received a CT scan and, allegedly, was informed by Defendant Sidorowicz that a bone inside his mouth was "exposed and had become infected." (Id. ¶¶ 47-48.)
Thereafter, on May 10, 2014, a third surgery was performed by Defendant Patel where he covered the exposed bone inside Plaintiff's mouth with a skin graft. (Id. ¶ 50.) Several days later, Plaintiff was discharged and returned to Sullivan. (Id. ¶ 51.) After the May 2014 surgery, Plaintiff underwent two additional oral surgeries in order to remove excessive and overlapping tissue inside of his mouth. (Id. ¶ 52.)
Plaintiff alleges that to this day he continues to "experience extreme pain on the right side of his face and has difficulty chewing food on the right side of his mouth." (Id. ¶ 53.)
Plaintiff commenced this lawsuit in forma pauperis and pro se on September 18, 2015. (See Compl., ECF No. 2.) Counsel appeared on his behalf on February 16, 2016. (ECF No. 34.) Plaintiff, assisted by counsel, amended his complaint on August 15, 2016. (See Am. Compl., ECF No. 41.) Each set of Defendants has moved to dismiss that complaint pursuant to Rules 12(b)(1) or 12(b)(6). (See ECF Nos. 58 (State Defendants), 68 (Medical Defendants).)2
Under Rule 12(b)(6) or 12(c) motions to dismiss, the inquiry is whether the complaint "contain[s] 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)); accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010) (). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679. To survive a motion to dismiss, a complaint must supply "factual allegations sufficient 'to raise a right to relief above the speculative level.'" ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555). The Court must take all material factual allegations as true and draw reasonable inferences in the non-moving party's favor, but the Court is "'not bound to accept as true a legal conclusion couched as a factual allegation,'" or to credit "mere conclusory statements" or "[t]hreadbare recitals of the elements of a cause of action." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
In determining whether a complaint states a plausible claim for relief, a district court must consider the context and "draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. It is important to note that "pleading is not an interactive game in which plaintiffs file a complaint, and then bat it back and forth with the Court over a rhetorical net until a viable complaint emerges." In re Merrill Lynch Ltd. P'ships Litig, 7 F. Supp. 2d 256, 276 (S.D.N.Y. 1997). The court's "duty to liberally construe a plaintiff's complaint [is not] the equivalent of a duty to re-write it." Geldzahler v. New York Medical College, 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (internal citations and quotation marks omitted). A claim is facially plausible when the factual content pleaded allows a court "to draw a reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678.
As to a motion brought under Rule 12(b)(1), "[a] case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Id.; but see John v. Whole Foods Mkt. Grp., Inc., 858 F.3d 732, 736 (2d Cir. 2017) (...
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