Hardy v. the City of N.Y.

• Decision Date: 12 August 2010
• Docket Number: Civil Action No. CV-09-0166 (DGT)
• Citation: 732 F.Supp.2d 112
• Parties: Lawrence HARDY, Plaintiff, v. The CITY OF NEW YORK, the City of New York Department of Correction, Correction Officer Patrick Dorvil, Badge No. 11544, Frantz Medard, M.D. as Agents, Servants, and Employees of the City of New York Department of Correction, Officer Ricky Reynolds, Officer Brian Lewis, Officer George Lewis, Officer Thomas Lewis, Nurse Ann Dalecki, P.A. Noriel DeGuzman, Kamal Pathak, M.D., as Agents, Servants, and Employees of the New York State Department of Correctional Services and John and Jane Does (Medical Providers, Police & Correction Officers in the Employ of the City of New York Department of Correction and New York State Department of Correctional Services), Defendants.
• Court: U.S. District Court — Eastern District of New York

732 F.Supp.2d 112

Lawrence HARDY, Plaintiff,

v.The CITY OF NEW YORK, the City of New York Department of Correction, Correction Officer Patrick Dorvil, Badge No. 11544, Frantz Medard, M.D. as Agents, Servants, and Employees of the City of New York Department of Correction, Officer Ricky Reynolds, Officer Brian Lewis, Officer George Lewis, Officer Thomas Lewis, Nurse Ann Dalecki, P.A. Noriel DeGuzman, Kamal Pathak, M.D., as Agents, Servants, and Employees of the New York State Department of Correctional Services and John and Jane Does (Medical Providers, Police & Correction Officers in the Employ of the City of New York Department of Correction and New York State Department of Correctional Services), Defendants.

Civil Action No. CV-09-0166 (DGT).

United States District Court,

E.D. New York.

Aug. 12, 2010.

Andrew C. Laufer, Law Office of Andrew C. Laufer, PLLC, New York, NY, for Plaintiff.

Barry K. Myrvold, New York City Law Department, Laura A. Del Vecchio, Doreen Dufficy, Austa S. Devlin, Heidell, Pittoni, Murphy & Bach, LLP, Wesley Eugene Bauman, Assistant Attorney General Office of the Attorney General of the State of New York, New York, NY, for Defendants.

MEMORANDUM AND ORDER

TRAGER, District Judge:

Lawrence Hardy ("Hardy") brings this action against numerous New York City and New York State defendants as a result of his allegedly unlawful arrest on October 15, 2007, and subsequent incarceration from October 15, 2007, to March 11, 2008. Just prior to his arrest, Hardy had been diagnosed with an ear condition. This condition deteriorated significantly during his subsequent incarceration, ultimately necessitating several surgeries and lengthy rehabilitation. Hardy's primary claim is that the staff of various facilities gave unconscionably little attention to this ear problem, amounting to deliberate indifference to his serious medical condition in violation of 42 U.S.C. § 1983, conspiracy in violation of 42 U.S.C. § 1985 and municipal liability. Read at its broadest, Hardy's complaint can also be construed to allege: (1) false arrest under state law and 42 U.S.C. § 1983; (2) assault and battery; (3) maliciousprosecution; and (4) negligence in hiring, retention and training of employees. Defendants to this action include the City of New York (the "City"), the City of New York Department of Correction ("NYCDOC"), Correction Officer Patrick Dorvil, Badge No. 11544 ("Officer Dorvil," together with the City and NYCDOC, "City defendants"), Frantz Medard, M.D. ("Dr. Medard"), Officer Ricky Reynolds ("Officer Reynolds"), Officer Brian Lewis ("Officer B. Lewis"), Officer George Lewis ("Officer G. Lewis"), Officer Thomas Lewis ("Officer T. Lewis," together with Officers Reynolds, B. Lewis and G. Lewis, the "Willard Correction Officers"), Nurse Ann Dalecki ("Nurse Dalecki"), P.A. Noriel DeGuzman, Kamal Pathak, M.D. ("Dr. Pathak," together with the Willard Correction Officers, Nurse Dalecki and P.A. Noriel DeGuzman, "State defendants") and other unnamed medical providers, police officers and correction officers in the employ of NYCDOC and New York State Department of Correctional Services ("NYS DOCS") (collectively referred to as "defendants").

All defendants have filed motions to dismiss. Defendant Dr. Medard moves to dismiss Hardy's § 1983 deliberate indifference claim against him under Fed.R.Civ.P. 12(b)(6), or in the alternative, moves for summary judgment pursuant to Fed.R.Civ.P. 56. City defendants move to dismiss Hardy's amended complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. State defendants move to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(6) and 12(d). For the reasons explained below, defendants' motions are granted in part and denied in part.

Background

(1)

Pertinent History of Medical Treatment and Incarceration

For reasons explained infra, defendants' motions are treated as motions for summary judgment with respect to Hardy's claims of deliberate indifference to his medical needs. Accordingly, the following facts are based upon Hardy's amended complaint as well as the medical records submitted along with the parties' motion papers.

On October 6, 2007, Hardy sought medical attention at Woodhull Hospital emergency room in Brooklyn, New York ("Woodhull") for pain he was experiencing in his left ear. Pl.'s Aff. Opp'n Defs.' Mot. Dismiss, Ex. D ("Pl.'s Ex. D") at 21; see also Am. Compl. ¶ 26; Tr. Pl.'s § 50-h Hr'g Test. ("50-h Test.") at 11.¹ Hardy was given an appointment to see an ear, nose and throat ("ENT") specialist the following day. 50-h Test. at 11-12. When Hardy returned for the appointment, the ENT specialist said that there was "something wr[o]ng, but he didn't know exactly what," and Hardy was given another follow-up appointment for October 18, 2007.² 50-h Test. at 12; Am. Compl. ¶ 27.

a. Arrest

Before this follow-up appointment could occur, however, Hardy was arrested by police officers for an alleged parole violation. Am. Compl. ¶¶ 28-32; 50-h Test. at 12-16. Hardy claims that on October 15, 2007, police officers entered his grandmother's residence "looking to serve a warrant for someone who was renting aroom there in 2005." 50-h Test. at 13. Hardy does not know how the police officers entered the residence. 50-h Test. at 13. After entering the residence, the officers woke Hardy up and began to question him as to whether he knew the individual they were looking for. 50-h Test. at 13-14; Am. Compl. ¶ 29. Hardy informed them that he did not know the man in the picture and told them that "it [was] obvious he [was] not in the room with [Hardy] because there [was] nowhere for him to hide." 50-h Test. at 14.

The officers subsequently asked Hardy his name, which he refused to provide. However, after officers saw Hardy's identification on the dresser, they took it out of the room, ran his name and found an alleged parole violation. Am. Compl. ¶ 30; 50-h Test. at 14. Upon returning to the room, they informed Hardy that he had an "active parole violation for absconding" and arrested him. 50-h Test at 14, 16.

Hardy now asserts that his arrest was improper because the alleged parole violation was in error. Although Hardy had previously served a four-year sentence for robbery and had been released in 2006, Hardy contends that he was never properly sentenced to parole for that offense. Am. Compl. ¶ 31; 50-h Test. at 12-16. When asked during his 50-h Testimony whether he was on parole, Hardy responded that "[a]ccording to the State of New York, [he] was on parole," but also stated that he personally did not think he was on parole. ³ 50-h Test. at 14.

Hardy concedes that his previous arrest and incarceration for robbery would typically give rise to a term of parole.⁴ 50-h Test. at 15. Further, Hardy has clarified that he was in fact subject to a term of Post Release Supervision ("PRS"), which was administratively imposed by NYS DOCS. Pl.'s Aff. Opp'n Defs.' Mot. Dismiss at 16-17. However, the Second Circuit and the New York Court of Appeals have since held that the administrative imposition of PRS is improper. See Earley v. Murray, 451 F.3d 71, 75-76 (2d Cir.2006); People v. Sparber, 10 N.Y.3d 457, 859 N.Y.S.2d 582, 889 N.E.2d 459 (2008); Garner v. N.Y. Dep't of Corr. Servs., 10 N.Y.3d 358, 362, 859 N.Y.S.2d 590, 889 N.E.2d 467, 470 (2008). Seizing on this fact, Hardy believes that because the method through which he was sentenced to PRS is no longer valid, he could not have violated his PRS term, and thus any arrest and incarceration for such a violation was improper. Nevertheless, he admitted in his 50-H Testimony that "[a]s it stands, the parole violation is a valid parole violation, as it stands currently." 50-h Test. at 20.

After his arrest on October 15, 2007, Hardy had a hearing before a judge at Riker's Island sometime in mid-November and was sentenced to a ninety-day programas a result of his parole violation. Id. at 20-22. It was while awaiting this sentencing and then serving this sentence that Hardy's claims regarding deliberate indifference to his medical condition arose, as explained below.

b. Rikers Island

After his arrest on October 15, Hardy was taken to Otis Bantum Correctional Center ("OBCC"), a facility on Rikers Island. There, Hardy was "processed and taken to medical intake as are all prisoners who initially arrive at Rikers Island." Am. Compl. ¶ 32-33; 50-h Test. at 17. Hardy claims that he explained to staff, including defendants Officer Dorvil and Dr. Medard, that he was experiencing extreme ear pain and dizziness and had a follow-up appointment scheduled at Woodhull.⁵ Am. Compl. ¶ 34. According to Hardy's complaint, defendants, including Officer Dorvil and Dr. Medard, "told him he was fine and sent him into lockup." Id. ¶ 35.

However, the record contradicts Hardy's claims that Rikers Island intake staff completely ignored his medical issue. Specifically, Hardy's "Intake History and Physical Exam" form from October 15 indicates that medical staff noted Hardy's ear problem and placed him on oral medication, which pharmacy records show was Amoxicillin. Decl. Laura A. Del Vecchio Supp. Def.'s Mot. Dismiss ("Del Vecchio Decl."), Ex. I at NYC6-9; Del Vecchio Decl., Ex. J at NYC66.

Moreover, the evidence indicates that the named individual City defendants played limited roles. Officer Dorvil appears to have completed certain forms relating to Hardy at intake, including a discharge planning questionnaire and a suicide prevention screening form. Del Vecchio Decl., Ex. I at NYC45-46. The latter form seems to indicate that Hardy was not referred to the medical unit by Officer Dorvil at the time it was completed. Id. at NYC46. Dr. Medard, on the other hand, appears to have been entirely absent from Hardy's intake. Dr. Medard has submitted a declaration stating that in 2007, he did not work at OBCC or conduct intake evaluations at Rikers Island. Del Vecchio Decl., Ex. K. Instead, Dr. Medard explains that at the time of Hardy's arrest he was employed...