OPINION AND ORDER
Plaintiff Andrew Vail, pro se, brought the instant Action in August 2012, and currently alleges three causes of action related to medical treatment he received while incarcerated under the care of the New York City Department of Corrections. Before the Court is Defendants’ Motion for Judgment on the Pleadings. For the following reasons, the Court grants Defendants’ Motion.
I. BACKGROUND
A. Factual Background
The events giving rise to this action occurred on September 2, 2010, while Plaintiff was incarcerated at the Anna M. Kross Center (“AMKC”) at Rikers Island Prison Facility. (See Second Am. Compl. (July 19, 2013) (“SAC”) ¶¶ 3, 12-16 (Dkt. No. 45).) Defendants R.N. Otilia Phillips-
Shortly thereafter, Plaintiff “began to feel ill,” prompting him to “complaint ] to correctional staff.” (Id. ¶ 17.) Plaintiff alleges that he was “immediately seen by [Defendant [Phillips-]Drakes, who, after taking [Plaintiffs] vital signs, discovered [that he] was suffering severe acute tachycardia and hypertension, as well as an abnormal E.K.G.” (Id.) “[Phillips-Drakes] then immediately notified ... [Dr.] Than,” who subsequently “examined [Plaintiff].” (Id. ¶¶ 17-18.) Dr. Than then “consulted” another doctor, and “it was determined [that Plaintiff] was suffering acute cardiac abnormalities, and needed to be immediately rushed via emergency medical services to [a hospital] for emergency treatment and intervention.” (Id. ¶ 18.) An ambulance arrived less than an hour later and transported Plaintiff to the hospital. (See id. ¶ 19; see also Pl.’s Mem. of Law in Opp’n to Defs.’ Mot. To Dismiss (“Opp’n”) (June 29, 2014) 1 (Dkt. No. 96) (noting Plaintiff was “immediately rushed via ambulance to [the hospital] for emergency treatment and care”).) Plaintiff alleges that one of the emergency medical technicians (“EMTs”), EMT Rosado, “notice[d] that ... [Phillips-]Drakes and [Dr.] Than [had] erroneously medicate[d], treat[ed,] and advise[d] Plaintiff ..., as they believed him to be another patient, Luis Vega,” and notified them of their error. (Id. ¶¶ 20-21.) ■ Plaintiff also alleges that he “was escorted by two ... correctional officers ... who told [him] not to tell anybody about the incident,” (id. ¶ 20), and that the Rikers Defendants thereafter “participate^ in a cover-up in order to protect themselves from possible legal,
B. Procedural History
Before he filed the instant Action, Plaintiff filed a similar lawsuit in New York Supreme Court against Defendant City of New York on December 7, 2011, alleging a medical-malpractice claim based on essentially the same facts. (Id. ¶ 8-9; see also id. Ex. A (state court opinion).) On November 20, 2012, the Supreme Court dismissed Plaintiffs lawsuit on the grounds that Plaintiff failed to file a timely notice of claim, which is a “condition precedent” to the commencement of an action against a municipality such as the City of New York. N.Y. Gen. Mun. Law § 50-e(l)(a). (See also SAC Ex. A (state court opinion) at 2, 6.)
Plaintiff then filed the instant Action on August 6, 2012, alleging two causes of action — one apparently under 42 U.S.C. § 1983, claiming that the Rikers Defendants acted with deliberate indifference towards Plaintiffs health, and the other under state law, alleging that Defendant City of New York breached a “duty to protect” Plaintiff by failing to supervise and/or screen the Rikers Defendants and by failing to resolve and/or investigate the incident. (See Compl. (Dkt. No. 2).) Then, in a letter dated April 18, 2013, sent after he had served all three Defendants, Plaintiff requested leave to file an amended complaint on the grounds that he had “come across material and facts which would significantly clarify the original complaint.” (Letter from PI. to Court (April 24, 2013) (Dkt. No. 25).) The Court granted that request on April 23, 2013. (See id.) Plaintiff filed his Amended Complaint on May 22, 2013, alleging essentially the same two claims against the same three Defendants. (See First Am. Verified Compl. (Dkt. No. 27).)
On July 3, 2013, less than two months later, and after Defendants had filed Answers to the Amended Complaint, Plaintiff sought leave to file a second amended complaint, averring that he had “failed to state supplemental jurisdiction over [his] state law tort claims” and that he “wishe[d] to clarify [a paragraph] of his Amended Complaint to strike the inadvertent deliberate indifference wording in his medical malpractice cause of action.” (See Mot. for Leave To File a Second Am. Compl. (July 24, 2013) ¶¶ 1-2 (Dkt. No. 46).) Plaintiff also wished to add a supplemental state claim. (See Aff. in Supp. of Mot. for Leave To File a Second Am. Compl. ¶ 2 (July 24, 2013) (Dkt. No. 46).) On July 23, 2013, the Court granted Plaintiffs request, and it accepted for filing the proposed Second Amended Complaint that Plaintiff had attached to his Motion for Leave To Amend.. (See Dkt. No. 46 (granting Plaintiffs Motion); SAC.) That Complaint, which is the operative Complaint for the purposes of Defendants’ Motion, includes three causes of action — one under § 1983, alleging that the Rikers Defendants acted with deliberate indifference to Plaintiffs serious medical need, and two under state law, alleging that the Rikers Defendants committed medical malpractice when they treated Plaintiff on September 2, 2010, and that Defendant City of New York is liable for those Defendants’ actions under a theory of respondeat superior liability. (See SAC ¶¶ 22-33.)
Defendants thereafter submitted a request for a pre-motion conference in a letter dated October 18, 2013, and the Court granted that request three days later. (See Letter from Laura A. Del Vec-chio, Esq., to Court (Oct. 18, 2013) (Dkt. No. 67).) At the conference, held on December 18, 2013, and attended by Plaintiff via telephone, the Court adopted a scheduling order whereby Defendants would file their motion no later than February 15, 2014; Plaintiff would file his response no later than March 15, 2014; and Defendants would file their reply no later than March 29, 2014. (See Dkt. No. 71 (Scheduling Order); Dkt. (minute entry for Dec. 18, 2013).) Defendants ultimately filed their Motion and accompanying Memorandum of Law on February 21, 2014.5 (See Notice of Mot. (“Mot.”) (Dkt. No. 83);
Before Defendants filed their Motion, in a letter dated February 7, 2014, Plaintiff made the first of many requests for an extension of his time to respond to the Motion. (See Letter from PI. to Court (Feb. 18, 2014) (Dkt. No. 76).) In that request, Plaintiff informed the Court that he was imminently “being transferred to another correctional facility”; the Court granted his request and extended his time to respond by 10 days (i.e., until March 25). (See id.) Plaintiff submitted another request, dated February 14, 2014, apparently based on the same underlying circumstances, wherein he specifically requested a two-week extension; the Court granted that request as well, adjusting the entire briefing schedule by two weeks. (See Letter from PL to Court (Feb. 24, 2014) (Dkt. No. 86).) Then, in a letter dated May 6, 2014, Plaintiff informed the Court that he would be “undergoing ... surgery in the very near future,” and he asked the Court to suspend the case “until [his] medical issues are taken care of.” (Letter from PI. to Court (May 13, 2014) (Dkt. No. 88) (internal quotation marks omitted).)6 On May 13, the Court granted Plaintiffs request and stayed the case for 60 days, but it directed Plaintiff to provide a status update by July 15, 2014. (Id.) In a letter dated June 21, 2014, Plaintiff informed the Court that he underwent surgery on June 19, 2014, and that he was “scheduled to follow-up within [two-to-three] weeks,” but that he was at that time “unaware [whether he would] need another surgery.” (Letter from PL to Court 1 (June 26, 2014) (Dkt. No. 92).) He also noted that he had been placed into protective custody on June 9, 2014, which “preclude[d] the possibility of [him] being able to physically attend the law library,” and that a prison official had denied his request for photocopies of documents related to his case. (Id. at 2.) He also specifically requested a further extension of his time to respond until September 12, 2014, but the Court denied this request on June 25, 2014. (Id. at 3.) In a letter dated July 26, 2014, Plaintiff informed the Court that he was scheduled to be released from custody on July 31, 2014, and he requested that the -Court grant an extension of his time to respond until September 2, 2014. (See Letter from Pl. to Court (July 31, 2014) (Dkt. No. 93).) The Court granted that request on July 30, 2014. (See id.) Finally, in a letter dated August 20, 2014, Plaintiff informed the court that difficulty locating a halfway house had delayed his release from custody, and he requested a further extension of time. (See Letter from Pl. to Court (Aug. 20, 2014) (Dkt. No. 94).) The Court granted Plaintiff two additional weeks to respond to Defendants’ Motion. (See id.) Plaintiff filed his Opposition to Defendants’ Motion under seal on September 17> 2014. (See Opp’n.)7 Defendants filed their Reply on September 26, 2014. (See Reply Aff. (“Reply”) (Sept. 26, 2014) (Dkt. No. 97).)
II. DISCUSSION
A. Conversion
As exhibits to his Opposition, Plaintiff attached documentary evidence that he did not include with his Second Amended
“When matters outside the pleadings are presented in support of, or in opposition to[,] a [Rule 12(c) ] motion, a district court must either exclude the additional material and decide the motion on the [pleadings] alone[,] or convert the motion to one for summary judgment under [Rule 56] and afford all parties the opportunity to present supporting material.” Kouakou v. Fideliscare N.Y., 920 F.Supp.2d 391, 396 (S.D.N.Y.2012) (second and fifth alterations in original) (internal quotation marks omitted); see also Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir.2000) (discussing same standard in the context of a 12(b)(6) motion). “Federal courts have complete discretion” in determining whether to exclude material beyond the pleadings or to convert a motion to dismiss into a motion for summary judgment. Kouakou, 920 F.Supp.2d at 396 (internal quotation marks omitted). The exercise of such discretion “will turn on whether or not the proffered material, and the resulting conversion ..., is likely to facilitate the disposition of the action.” Feder v. Sposato, No. 11-CV-193, 2014 WL 1801137, at *4 (E.D.N.Y. May 7, 2014) (internal quotation marks omitted). With this concern in mind, courts in the Second Circuit have been hesitant to convert a motion to dismiss into a motion for summary judgment before discovery is complete because “[t]here would be little point in considering a summary judgment motion when significant relevant facts may yet to be discovered.” Wajilam Exports (Singapore) Pte. Ltd. v. ATL Shipping Ltd., 475 F.Supp.2d 275, 278 (S.D.N.Y.2006); see also Hellstrom v. U.S. Dep’t of Veterans Affairs, 201 F.3d 94, 97 (2d Cir.2000) (“Only in the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery.”); McIntyre v. Longwood Cent. Sch. Dist., No. 07-CV-1337, 2008 WL 850263, at *6 (E.D.N.Y. Mar. 27, 2008) (noting that the “plaintiff is entitled to discovery ... before requiring him to oppose a summary judgment motion”); . Oseni v. Tristar Patrol Servs., No. 05-CV-2875, 2006 WL 2972608, at *6 (E.D.N.Y. Oct. 18, 2006) (noting that “[s]ummary judgment is rarely appropriate in cases where the plaintiff has not had the opportunity to conduct discovery”); cf. Graham v. City of New York, 869 F.Supp.2d 337, 346 (E.D.N.Y.2012) (declining to convert the defendants’ motion to dismiss into a motion for summary judgment where the plaintiff “supplied additional documents in further opposition to defendants’ motion .... [b]ecause the case [could] be decided based on the pleadings”).
In this case, Magistrate Judge Davison stayed discovery pending the outcome of Defendants’ Motion. (See Dkt. No. 64.) Therefore, because discovery is far from
Even when adjudicating a motion to dismiss, however, there are certain categories of documents that the Court may take into account. The Court “may consider ... any written instrument attached to the complaint as an exhibit, any statements or documents incorporated in it by reference, and any document upon which the complaint heavily relies,” ASARCO LLC v. Goodwin, 756 F.3d 191, 198 (2d Cir.2014) (internal quotation marks omitted), in other words, any document that is “integral to the complaint,” Sira v. Morton, 380 F.3d 57, 67 (2d Cir.2004). The Court declines to consider the documents Plaintiff attached to his Opposition here, however, because Plaintiff does not reference them, explicitly or implicitly, in his Second Amended Complaint, nor does he heavily rely on the documents. Even if Plaintiff relied on the documents when writing his Second Amended Complaint— which no evidence in the record suggests— merely alleging facts supported by the content of the documents does not render them “integral” to the Complaint. See Madu, Edozie & Madu, P.C. v. Socket-Works Ltd. Nigeria, 265 F.R.D. 106, 123-24 (S.D.N.Y.2010) (noting that merely possessing documents, or alleging facts only present in those documents, is not sufficient for them to be considered “integral” to a complaint). Indeed, Plaintiff witnessed much of the conduct he alleged in the Complaint first-hand, so it is unlikely that he based his allegations in any large part on the documents. The Court, therefore, will exclude the exhibits to Plaintiffs Opposition when deciding Defendants’ Motion To Dismiss.
B. Standard of Review
“After the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). “Judgment on the pleadings is appropriate where material facts are undisputed and where a judgment on the merits is possible merely by considering the contents of the pleadings.” Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir.1988). “[T]he standards for dismissal pursuant to Rule 12(c) are the same as for a dismissal pursuant to Rule 12(b)(6).” Ideal Steel Supply Corp. v. Anza, 652 F.3d 310, 324 (2d Cir.2011). To survive a motion to dismiss under Rule 12(c), therefore, “a complaint must allege sufficient facts which, taken as true, state a plausible claim for relief.” Keiler v. Harlequin Enters. Ltd., 751 F.3d 64, 68 (2d Cir.2014). In reviewing a complaint, the Court “accept[s] all factual allegations as true and draw[s] every reasonable inference from those facts in the plaintiffs favor.” In re Adderall XR Antitrust Litig., 754 F.3d 128, 133 (2d Cir.2014) (internal quotation marks omitted). Moreover, as discussed above, along with the Complaint itself, the Court “may consider ... any written instrument attached to the complaint as an exhibit, any statements or documents incorporated in it by reference, and any document upon which the com
The Supreme Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss,” and by extension a Rule 12(c) motion to dismiss, “does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his [or her] ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (third alteration in original) (citations omitted). Instead, the Supreme Court has emphasized that the “[flactual allegations must be enough to raise a right to relief above the speculative level,” id., and that “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint,” id. at 563, 127 S.Ct. 1955. A plaintiff must allege “only enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955. But if a plaintiff has “not nudged [his or her] claims across the line from conceivable to plausible, the[] complaint must be dismissed.” Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.’ ” (alteration in original) (citation omitted), (quoting Fed.R.Civ.P. 8(a)(2))). Where, as here, the complaint was filed pro se, it must be construed liberally with “special solicitude” and interpreted to raise the strongest claims that it suggests. Hill v. Curcione, 657 F.3d 116, 122 (2d Cir.2011) (internal quotation marks omitted).
C. Analysis
Defendants move to dismiss the Second Amended Complaint for three reasons. First, they argue that Plaintiffs § 1983 claim against the Rikers Defendants should be dismissed for failure to state a claim that those Defendants were deliberately indifferent to Plaintiffs health, and thereby violated his constitutional rights. {See Defs.’ Mem. ¶ 17.) Second, they argue that Plaintiffs § 1983 “respondent superior” claim against Defendant City of New York should be dismissed for failure “to allege a policy, practice or custom that led to a violation of [Plaintiffs] civil rights.” (Id. ¶ 28.) Third, they argue that Plaintiffs state-law medical malpractice claims against Defendant City of New York should be dismissed for the same reasons given by the state court in its November 2012 order dismissing Plaintiffs case. (See id. ¶¶ 33-34.)
1. Timeliness of Motion
As an initial matter, Plaintiff argues that Defendants’ Motion should be denied because Defendants waited one year after “inherit[ing]” the case before filing the Motion, which Plaintiff characterizes as a “lengthy delay.” (See Opp’n 3). The Court disagrees.
Under Federal Rule of Civil Procedure 12(c), a party may file a motion to dismiss on the pleadings at any time after the pleadings are closed so long as the motion is filed “early enough not to delay trial.” As noted above, Plaintiff filed his Second Amended Complaint on July 19, 2013. (See SAC). Defendants then filed their Motion approximately seven months later, on February 21, 2014. (See Defs.’ Mem.) Discovery was still ongoing at that time, but expert discovery had not yet occurred, and a trial date had not yet been
2. Deliberate Indifference
‘While prison officials should provide adequate medical care to prisoners, ‘not every lapse in medical care is a constitutional wrong.’ ” Bell v. Jendell, 980 F.Supp.2d 555, 559 (S.D.N.Y.2013) (quoting Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir.2006)). In this context, a post-state-conviction-prisoner’s claim that he received unconstitutionally inadequate medical care is analyzed under the Eighth Amendment’s prohibition on the infliction of “cruel and unusual punishment,” as applied to the states by the Fourteenth Amendment. See Mahone v. City of New York, No. 13-CV-8014, 2014 WL 1407702, at *2 n. 3 (S.D.N.Y. Apr. 11, 2014); see also Caiozzo v. Koreman, 581 F.3d 63, 69 & n. 3 (2d Cir.2009) (noting that “[a] convicted prisoner’s claim of deliberate indifference to his medical needs by those overseeing his care is analyzed under the Eighth Amendment,” and that, “[i]n the case of a state prisoner, it is the Eighth Amendment as applied to the States by the Fourteenth Amendment”).8 To state such a claim, Plaintiff must plausibly allege that “(1) objectively, the deprivation the inmate suffered was sufficiently serious that he was denied the minimal civilized measure of life’s necessities,” and “(2) subjectively, the defendant official acted with a sufficiently culpable state of mind, such as deliberate indifference to inmate health or safety.” Walker v. Schult, 717 F.3d 119, 125 (2d Cir.2013) (alteration omitted) (internal quotation marks omitted); see also Youmans v. City of New York, 14 F.Supp.3d 357, 361 (S.D.N.Y.2014) (same).
a. Medication Error and Subsequent Treatment
Plaintiff first alleges in his Second Amended Complaint that Phillips-Drakes incorrectly administered Librium, rather than Tylenol with Codeine, to Plaintiff. (SAC ¶ 16.) Plaintiff alleges that before he took the Librium, he “protested that [it] was inconsistent in size, shape[,] and color to [his] regularly prescribed medication.” (Id. ¶ 16.) Plaintiff further alleges that, after Phillips-Drakes notified Dr. Than of his symptoms, Dr. Than examined Plaintiff, assuming he was Luis Vega, and determined that he needed to be rushed to the hospital. (Id. ¶ 18; see also Opp’n 17 (alleging that Dr. Than never checked Plaintiffs identification).)
Here, even assuming that Plaintiffs allegations satisfy the first, objective prong of a deliberate indifference claim, Plaintiff has failed to allege facts satisfying the second, subjective prong. “In medical-treatment cases not arising from emergency situations, the official’s state of mind need not reach the level of knowing and purposeful infliction of harm; it suffices if the plaintiff proves that the official acted with deliberate indifference to inmate health.” Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir.2014) (internal quotation marks omitted) (quoting Salahuddin, 467 F.3d at 280). “Deliberate indifference is a mental state equivalent to subjective recklessness,” and it “requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result.” Id. (internal quotation marks omitted) (quoting Salahuddin, 467 F.3d at 280). Conversely, “mere negligence is not actionable, nor is mere medical malpractice ... tantamount to deliberate indifference.” Bell, 980 F.Supp.2d at 561 (internal quotation marks omitted); see also Salahuddin, 467 F.3d at 280 (noting that “recklessness entails more than mere negligence”); Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir.2003) (“ ‘Deliberate indifference’ describes a mental state more blameworthy than negligence ....”); Santana v. City of New York, No. 13-CV-3034, 2014 WL 1870800, at *5 (S.D.N.Y. May 8, 2014) (“[D]eliberate indifference is more substantial than mere disagreement over a course of treatment, negligence[,] or even medical malpractice.”).
Under certain circumstances, it is conceivable that a plaintiffs allegations could demonstrate that a defendant was deliberately indifferent to a substantial risk of harm resulting from the administration of incorrect, and therefore potentially dangerous, medication. Here, however, Plaintiffs other allegations undercut Plaintiffs claim. For example, Plaintiff alleges that “prior to administering]” the Librium, Phillips-Drakes “failed to verify [Plaintiffs] identification,” (SAC ¶ 16), and that Dr. Than likewise failed to check Plaintiffs identification before treating him, (Opp’n 7). According to Plaintiff, the Rikers Defendants both “believed [Plaintiff] to be another patient, Luis Vega.” (Id. ¶ 20.) Thus, instead of alleging that Phillips-Drakes administered a random or un
Moreover, Plaintiffs allegations in the Second Amended Complaint demonstrate that, after taking the Librium, Plaintiff received prompt and adequate medical care. When Plaintiff became symptomatic, he was “immediately seen by ... [Phillips-]Drakes,” who took his vital signs and sought to diagnose his symptoms. (SAC ¶ 17 (emphasis added).) Shortly thereafter, Dr. Than examined Plaintiff and, after consulting with another doctor, “determined [that Plaintiff] was suffering acute cardiac abnormalities[ ] and needed to be
b. Failure to Acknowledge and Notify, and Alleged Cover-up
Plaintiff alleges that “when presented with actual knowledge of [Plaintiffs] serious medical need by EMT D. Rosado, [the Rikers Defendants] failed to acknowledge their error of medicating [Plaintiff] with another patient[’]s medication, participating in a cover-up.” (SAC ¶ 23.) In his Opposition, Plaintiff takes this allegation a step further and for the first time claims that the Rikers Defendants “were well aware that Plaintiff was suffering from life threatening side effects due to being administered Librium,” because they are “trained and licensed medical professionals,” implying that the Rikers Defendants
Where new allegations in a pro se plaintiffs opposition memoranda “are consistent with the allegations contained” in the Complaint, they may be read “as supplements to th[e] pleadings.” Boyer v. Channel 13, Inc., Nos. 04-CV-2137, et al., 2005 WL 2249782, at *6 (S.D.N.Y. Mar. 9, 2005); see also Paul v. Bailey, No. 09-CV-5784, 2013 WL 2896990, at *5 (S.D.N.Y. June 13, 2013) (considering “factual allegations made by pro se [p]laintiff in [the plaintiffs] opposition papers” because they were “consistent with those in the initial complaint and amended complaints” (italics omitted)); Gertskis v. U.S. E.E.O.C., No. 11-CV-5830, 2013 WL 1148924, at *1 (S.D.N.Y. Mar. 20, 2013) (considering allegations from the plaintiffs opposition memoranda “to the extent they are consistent with the [a]mended [c]omplaint”); Chukwueze v. NYCERS, 891 F.Supp.2d 443, 448 (S.D.N.Y.2012) (“[Because a pro se plaintiffs allegations must be construed liberally[,], it is appropriate for a court to consider factual allegations made in a pro se plaintiffs opposition memorandum, as long as the allegations are consistent with the complaint.” (italics omitted)). In this ease, therefore, the Court will construe any new allegations contained in the Opposition as part of the pleadings, provided they are consistent with the allegations contained in the Second Amended Complaint.
In the Second Amended Complaint, Plaintiff alleges that EMT Rosado notified the Rikers Defendants of their error upon his arrival, (see SAC ¶ 21; see also id. ¶ 23 (alleging that the Rikers Defendants were deliberately indifferent “when presented with actual knowledge of [Plaintiffs] serious medical need by [EMT] D. Rosado”)), and that the Rikers Defendants both “believed” that Plaintiff was Vega prior to that time, (id. ¶ 20). However, in his Opposition, Plaintiff now claims that the Rik-ers Defendants failed to notify the hospital and EMTs of their mistake. (Opp’n 4, 10.) These new allegations are inconsistent with Plaintiffs clear suggestion in the Second Amended Complaint that the Rikers Defendants were unaware of their mistake until the EMTs arrived. The Court, therefore, declines to treat Plaintiffs new allegations as part of the pleadings. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.2006) (“[0]ur cases have also indicated that we cannot read into pro se submissions claims that are not ‘consistent’ with the pro se litigant’s allegations .... ” (italics omitted)); Blue v. Macy’s Herald Square, No. 12-CV-5673, 2013 WL 3717777, at *1 n. 3 (S.D.N.Y. July 16, 2013) (declining to consider an allegation from the plaintiffs opposition because it was inconsistent with the complaint).
Even if the Court were to credit Plaintiffs new allegations, however, the allegations as a whole are still insufficient to constitute a claim for deliberate indifference. Taking a liberal view of Plaintiffs allegations regarding the Rikers Defendants’ failure to acknowledge their mistake, failure to notify the hospital and EMTs of that mistake, and attempted cover-up, the Court may construe them in one of two ways. Either (a) they form part of the same instance of deliberate indifference that began when Phillips-Drakes gave Librium to Plaintiff, or (b) they are a separate and distinct instance of deliberate indifference. Either way, Plaintiff fails to state a claim.
For similar reasons, Plaintiffs argument in his Opposition that the alleged cover-up shows that the Rikers Defendants “acted with a state of mind equivalent to criminal recklessness” is also without merit. (Opp’n 3; see also id. at 9 (alleging that the Rikers Defendants “crossed the line from simple malpractice to deliberate in
Second, treating Plaintiffs allegations as if they refer to a separate act of deliberate indifference, Plaintiff fails to allege sufficient facts to meet the first, objective prong of a deliberate indifference claim. “To determine whether a deprivation is[ ] ‘objectively, sufficiently serious,’ a court first asks ‘whether the person was actually deprived of adequate medical care.’ ” Rodriguez, 2012 WL 811515, at *2 (quoting Salahuddin, 467 F.3d at 279 (emphasis added)). Here, Plaintiff does not satisfactorily connect the Rikers Defendants’ failure to acknowledge or notify others of their mistake after it was made, or the alleged subsequent cover-up, to any inadequacy in his medical care.
By Plaintiffs own admission, EMT Ro-sado discovered upon his arrival that Phillips-Drakes had given Plaintiff the wrong medication, and Plaintiff left the Rikers Defendants’ care at that time. (See SAC ¶ 20.) Therefore, by approximately 7:07 pm on the evening of the events at issue, (see id. ¶¶ 19-20), approximately an hour after Phillips-Drakes administered the wrong medication, (see id. ¶ 16), the medical professionals in charge of Plaintiffs medical care had all the available relevant information about Plaintiffs condition. The fact that it was the Rikers Defendants who committed the initial mistake, and not other medical professionals at Rikers, would not have had any impact on Plaintiffs treatment, and even if it did, EMT Rosado had that information.
It is therefore unclear what impact the Rikers Defendants’ acknowledgement of their mistake, or notification of the EMTs and the hospital of that mistake, would
3. Monell Claim
Even if the Court found that Plaintiff stated a plausible deliberate indifference claim against the Rikers Defendants, it nonetheless agrees with Defendants that Plaintiff has failed to sufficiently allege a § 1983 claim against the City under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). It is well-settled that a municipality may not be held liable under § 1983 “by application of the doctrine of respondeat superior.” Pembaur v. City of Cincinnati 475 U.S. 469, 478, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (citing Monell, 436 U.S. at 691, 98 S.Ct. 2018); see also Vassallo v. Lando, 591 F.Supp.2d 172, 201 (E.D.N.Y.2008) (noting that “a municipal entity may only be held liable where the entity itself commits a wrong”). Instead, there must be a “direct causal link between a municipal policy or custom and the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); see also Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir.2012) (“[A] municipality can be held liable under Section 1983 if the deprivation of the
Plaintiff has failed to allege that the Rikers Defendants committed misconduct pursuant to official municipal policy. In his Second Amended Complaint, Plaintiff alleges that the City had “notice and knowledge” of Defendants’ actions, and that it “encouraged and permitted” them. (SAC ¶ 30.) Plaintiff further alleges in his Opposition that the “ ‘identified custom’ ” for Monell purposes is “the grossly deficient medical care that the City of New York utilizes for its Rikers Island Prison Facility,” (Opp’n 11), and seemingly also is the City’s “failure to train and supervise its employees,” (Id. at 12.) Of these allegations, the only factually specific allegation regarding a policy or custom is that the City failed to train its employees. However, because Plaintiff provides no additional detail beyond the general assertion that the City failed to train its employees, his allegation is insufficient to state a claim. See Doe v. City of New York, No. 09-CV-9895, 2012 WL 2900483, at *2 (S.D.N.Y. July 2, 2012) (finding that the plaintiff did not “adequately allege[ ] that a failure to train or supervise caused [the plaintiffs] injury,” because the complaint “contain[ed] no facts elaborating on ... the defective nature of the ... training program, let alone ... how a defect in training ... caused her harm.”); Johnson v. City of New York, No. 12-CV-2484, 2012 WL 2394894, at *1 (E.D.N.Y. June 25, 2012) (“Neither the mere recitation of a failure to train municipal employees[,] nor [reference to] a single incident ..., is sufficient to raise an inference o[f] the existence of a custom, policy, or practice.”).
Additionally, Plaintiff notes in his Opposition that he has “multiple pending discovery demands” relevant to his Monell claim. (Opp’n 11.) Plaintiff admits that because discovery has not yet been completed, he has “not yet had a chance to fully formulate his claim against the [C]ity.” (Id. at 12.) The fact that Plaintiff needs discovery to adequately state a claim for Monell is tantamount to an admission that he has, thus far, failed to state a Monell claim. The Court therefore grants Defendants’ Motion with respect to Plaintiffs claim against the City.
Plaintiffs state-law claims arise only under a theory of supplemental jurisdiction, and therefore the Court need not and will not exercise its discretion to maintain such jurisdiction over those claims. See 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims over which it has original jurisdiction .... ”); see also Matican v. City of New York, 524 F.3d 151, 154-55 (2d Cir.2008) (“[I]f [a plaintiff] has no valid claim under § 1983 against any defendant, it is within the district court’s discretion to decline to exercise supplemental jurisdiction over the pendent state-law claims.”).
In light of the foregoing, the Court dismisses Plaintiffs Second Amended Complaint. However, this dismissal is without prejudice, and Plaintiff is given 30 days to submit a Third Amended Complaint.- The Clerk of Court is respectfully requested to terminate the pending Motion. (See Dkt. No. 83.)
SO ORDERED.
1.
The Second Amended Complaint's reference to "Corizon” appears to refer to Corizon Health, Inc., a third-party provider of prison • health services. See Corizon, http://www. corizonhealth.com (last visited Aug. 18, 2014). Corizon is not a defendant in this case, and the Complaint does not otherwise discuss Corizon.
Moreover, the case caption lists Defendant Otilia Phillips-Drakes as "Otilia Phillips-Drake.” (See Dkt.) For the sake of clarity, the Court notes that all references to "Otilia Phillips-Drakes” in this Opinion refer to the individual listed in the caption as "Otilia Phillips-Drake.”
2.
Dr. Kay-Njemanze is not a defendant in this case, and the Second Amended Complaint does not contain any other allegations regarding this individual.
3.
Plaintiff made another request for appointment of counsel in a letter dated October 16, 2013, but Magistrate Judge Davison denied it "[f]or the same reasons stated in [his] [August 8, 2013] decision denying appointment of counsel.” (See Dkt. No. 66 (Appl. for the Court to Req. Pro Bono Counsel); Dkt. No. 69 (Order denying request).)
4.
In light of this order staying discovery, Magistrate Judge Davison later denied Plaintiff’s January 14, 2014 request for appointment of expert witnesses without prejudice. (See Dkt. No. 73 (Notice of Motion for appointment of experts); Dkt. No. 75 (Order denying motion without prejudice, noting that "Plaintiff may renew [his] request if Defendants^] motion is not granted”).)
5.
The Court granted Defendants a three-day extension to February 18, 2014, and the docket reflects that Defendants unsuccessfully attempted to file their Motion on that day. (See Dkt. No. 74 (granting three-day-extension request); Dkt. Nos. 77-78 (incorrectly filed Motion and Memorandum).) Defendants apparently were unable to correct the filing error until February 21, 2014.
6.
Plaintiff noted that, “because of security concerns,” he was "not entitled to [know] the exact date” of the surgery. (Dkt. No. 88.)
7.
On December 1, 2014, the Court issued an Order To Show Cause ordering Plaintiff to explain why his Opposition, and the exhibits attached thereto, should remain under seal. (See Dkt. No. 102.)
8.
Based on Plaintiffs allegation that he was "awaiting transfer to state prison” when the alleged misconduct occurred, the Court assumes Plaintiff had already been convicted of the crime(s) for which he was ultimately incarcerated at that time. (SAC ¶ 11.) However, even if Plaintiff had not yet been convicted, meaning his claim would properly be analyzed under the Due Process Clause of the Fourteenth Amendment, the same Eighth Amendment "cruel and unusual punishment” standard would apply. Caiozzo v. Koreman, 581 F.3d 63, 69, 71 (2d Cir.2009) (noting that, while the Due Process Clause governs claims of deliberate indifference made by individuals who are "detained prior to conviction,” "[cjlaims for deliberate indifference to a serious medical condition or other serious threat to the health or safety of a person in custody should be analyzed under the same standard irrespective of whether they are brought under the Eighth or Fourteenth Amendment”); see also Nielsen v. Rabin, 746 F.3d 58, 63 n. 3 (2d Cir.2014) (citing Caiozzo for the same proposition).
9.
Notably, even Plaintiff alleges that the Rik-ers Defendants' conduct was negligent. (See SAC ¶ 21 (alleging that, at a certain point, the Rikers Defendants “were notified of their negligence by” EMT Rosado).)
10.
Plaintiff does allege in the Second Amended Complaint that it took the ambulance up to 52 minutes to arrive, (see SAC ¶¶ 18-19 (alleging that the Rikers Defendants made the emergency-treatment determination "at approximately 6:15 P.M.” but that the ambulance arrived "at approximately 7:07 P.M.”)), which some might characterize as a "delay,” even though the Second Amended Complaint does not include such a characterization. However, Plaintiff does not allege that any injuries resulted from such a delay, nor does he allege that the Rikers Defendants caused a delay in Plaintiff's transfer to the hospital. (See id. ¶ 18 (alleging that Dr. Than determined that Plaintiff "needed to be immediately rushed” to the hospital (emphasis added)).)
11.
Plaintiff alleges in the Second Amended Complaint that Dr. Than examined him fifteen minutes after he took Librium and determined he “needed to be immediately rushed via emergency medical services to [the hospital],” meaning the EMTs were on their way to Rikers within minutes of Plaintiff becoming symptomatic. (SAC ¶ 18.) Plaintiff does not allege, nor does common sense suggest, that the EMTs would have arrived any sooner had the Rikers Defendants admitted their mistake.