Latouche v. Hammer

• Docket Number: 22-cv-1437 (CS)
• Decision Date: 31 July 2023
• Parties: VALERY LATOUCHE, Plaintiff, v. DR. JOHN HAMMER, THE REGIONAL MEDICAL DIRECTOR (RMD), Defendant.
• Court: U.S. District Court — Southern District of New York

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VALERY LATOUCHE, Plaintiff, v. DR. JOHN HAMMER, THE REGIONAL MEDICAL DIRECTOR (RMD), Defendant.

No. 22-cv-1437 (CS)

United States District Court, S.D. New York

July 31, 2023

Seibel, J.

ORDER OF DISMISSAL

CATHYSEIBEL, U.S.D.J.

Plaintiff currently incarcerated in Sing Sing Correctional Facility brought this pro se action under 42 U.S.C. § 1983, asserting claims arising from his medical care during his pretrial detention in the Rockland County Jail and during his incarceration in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”).

By order dated March 14, 2022, the Court granted Plaintiff's request to proceed in forma pauperis (IFP).^[1](ECF No. 5.) By order dated March 29, 2022, the Court granted Plaintiff leave to file an amended complaint that complied with the applicable pleading standards. (ECF No. 6.) Plaintiff filed his Amended Complaint against Defendants John Morley, Rockland County, and Rockland County Jail. (ECF No. 8.) By order dated April 29, 2022, the Court dismissed Plaintiff's claims against Defendant Rockland County Jail because it lacked the capacity to be sued, and his claims against Defendant Rockland County because the claims were time barred and failed to state a claim on which relief can be granted. (ECF No 11.)

After being granted leave to file an amended complaint at a pre-motion conference, (Minute Entry dated Feb. 28, 2023), Plaintiff filed a Second Amended Complaint on May 18, 2023, (ECF No. 27), and then another on June 15, 2023, (ECF No. 28), naming only Dr. John Hammer and Dr. Razia Ferdous as Defendants. But neither Complaint alleged facts regarding what those individuals did or failed to do that violated Plaintiff's rights. By order dated July 6, 2023, the Court granted Plaintiff leave to amend one final time and reminded him of the relevant pleading standards, as set forth in ECF No. 6. (ECF No. 30.)

On July 26, 2023, Plaintiff filed his Fourth Amended Complaint against Defendant Dr. John Hammer but again fails to include any facts as to what he allegedly did or failed to do that violated Plaintiff's rights. (ECF No. 32 (“FAC”).)

STANDARD OF REVIEW

The Prison Litigation Reform Act requires that federal courts screen complaints brought by prisoners who seek relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss a prisoner's in forma pauperis complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).^[2]

Submissions by pro se plaintiffs are to be examined with “special solicitude,” Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010), interpreted “to raise the strongest arguments that they suggest,” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), and “held to less stringent standards than formal pleadings drafted by lawyers,” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (per curiam). Nevertheless, “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice,” and district courts “cannot invent factual allegations” that the plaintiff has not pleaded. Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010).

DISCUSSION

I. Claims Against Dr. Hammer

In his Fourth Amended Complaint, Plaintiff alleges that Dr. John Hammer failed to adequately address his medical condition and was deliberately indifferent to his medical needs. (FAC ¶ 1.) The Eighth Amendment imposes a duty on prison officials to ensure that inmates receive adequate medical care. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). “Yet not every lapse in medical care is a constitutional wrong. Rather, a prison official violates the Eighth Amendment only when two requirements” - one objective and one subjective - “are met.” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006).

The objective element requires that “the alleged deprivation of adequate medical care . . . be sufficiently serious.” Id. Under this element of the test, one must ask (a) “whether the prisoner was actually deprived of adequate medical care” and (b) if so, “whether the inadequacy in medical care is sufficiently serious.” Id. at 279-80. Only “deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson v. Seiter, 501 U.S. 294, 298 (1991). Because a “prison official's duty is only to provide reasonable care,” Salahuddin, 467 F.3d at 279 (citing Farmer, 511 U.S. at 844-47), “prison officials are liable only if they fail to take reasonable measures in response to a medical condition,” Rutherford v. Correct Care Sols., LLC, No. 18-CV-12049, 2020 WL 550701, at *5 (S.D.N.Y. Feb. 4, 2020).

The subjective component requires a plaintiff to plausibly allege that the official acted with deliberate indifference to the inmate's health. Salahuddin, 467 F.3d at 280. “This mental state requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result.” Id. “The defendant's belief that his conduct poses no risk of serious harm (or an insubstantial risk of serious harm) need not be sound so long as it is sincere.” Id. at 281.

“[N]egligence, even if it constitutes medical malpractice, does not, without more, engender a constitutional claim.” Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998). Deliberate indifference is more than an “inadvertent failure to provide adequate medical care.” Estelle v. Gamble, 429 U.S. 97, 105 (1976). While deliberate indifference is not established merely because a provider concludes no medical treatment is necessary, Jordan v. Fischer, 773 F.Supp.2d 255, 276-77 (N.D.N.Y. 2011), the personnel in question must actually evaluate the patient's condition and make a determination, see Smith v. Outlaw, No. 15-CV-9961, 2017 WL 4417699, at *4 (S.D.N.Y. Sept. 30, 2017) (plaintiff who alleged he complained of chest pains and was sent back to his cell without examination or treatment before having a heart attack had pleaded deliberate indifference); Gilliam v. Hamula, No. 06-CV-6351, 2011 WL 6148943, at *16 (W.D.N.Y. Dec. 12, 2011) (alleged refusal to examine Plaintiff could support finding of deliberate indifference); cf. Powell v. Cusimano, 326 F.Supp.2d 322, 338-39 (D. Conn. 2004) (plaintiff was not denied medical care because evidence clearly showed he was in fact examined by a nurse).

Even assuming Plaintiff has adequately pleaded facts satisfying the objective prong, he fails to plead any facts supporting a claim against Dr. Hammer, who apparently is a Regional Medical Director for DOCCS. The FAC describes the treatment Plaintiff received for his gynecomastia from providers at DOCCS facilities. (See FAC ¶¶ 8-12.) It further alleges that one of those providers - not Dr. Hammer - told Plaintiff that a biopsy had been denied by an official in Albany because Plaintiff's mammogram was negative and the condition was regarded as cosmetic. (Id. ¶ 11.) He further alleges that after an MRI and normal blood tests, a request to see a specialist was not honored. (Id. ¶ 12.)

There are no facts suggesting that Dr. Hammer is the official who made those decisions, and thus the FAC fails to state a claim as to him. “It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Colon v. Coughlin, 58 F.3d 865 873 (2d Cir. 1995). While Colon laid out a special test for supervisory liability outlining five ways a plaintiff could show personal involvement of a supervisor, the Second Circuit has clarified that under the Supreme Court's ruling in Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Colon test is invalid, and instead “a plaintiff must plead and prove ‘that each Government-official defendant, through the official's own individual actions, has violated the Constitution.'” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 676). “Simply put, there's no special rule of liability for supervisors.” Id. While “‘[t]he factors necessary to establish a § 1983 violation will vary with the constitutional provision at issue' because the elements of different constitutional violations vary,” id. (quoting Iqbal, 556 U.S. at 676), “[t]he violation must be established against the supervisory official directly,” id. (emphasis added). In the absence of any allegation as to what, if anything, Dr. Hammer did in connection with Plaintiff's care, it is plain that he is being sued merely based on his supervisory position, which even before Tangreti would not suffice to show personal involvement for purposes of § 1983. See, e.g., Banks v. Annucci, 48 F.Supp.3d 394, 416 (N.D.N.Y. 2004) (“Where a defendant is a supervisory official, a mere linkage to the unlawful conduct through the chain of command (i.e., under the doctrine of respondeat superior) is insufficient to show his or her personal involvement in that unlawful conduct.”). Even if I were to assume that Dr. Hammer is the official who made the decisions about the biopsy and seeing a specialist, Plaintiff has failed to provide facts plausibly suggesting that he did so with deliberate indifference. Plaintiff merely states in a conclusory fashion that Dr. Hammer, in his position as Regional Medical Director, was “fully aware” of Plaintiff's condition and “failed to exercise [his] duty to provide reasonable care,” (FAC ¶ 13), and that this failure amounts to deliberate indifference, (id. at 4). But he provides no...