Opinion
12 Civ. 8943 (PGG) (FM)
11-25-2013
TYRONE ROSADO, Plaintiff, v. DAPHNEE HERARD, Defendant.
REPORT AND RECOMMENDATION TO THE HONORABLE PAUL G. GARDEPHE FRANK MAAS, United States Magistrate Judge.
Plaintiff Tyrone Rosado ("Rosado"), a pretrial detainee at the George Motchan Detention Center at Rikers Island, brings this pro se action pursuant to 42 U.S.C. § 1983 ("Section 1983") seeking declaratory, injunctive and monetary relief. In both his original complaint, (ECF No. 2), and his amended complaint, (ECF No. 25 ("Am. Compl.")), Rosado alleges that defendant Daphnee Herard ("Herard"), a mental health clinician at Rikers Island, violated his constitutional, statutory, and common law rights by denying him and other Spanish-speaking detainees access to "therapeutic group sessions," and by disclosing his HIV status to other detainees. Herard has moved to dismiss Rosado's complaint and amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (See ECF No. 30; ECF No. 38 at 4 n.1). On August 29, 2013, Your Honor referred the case to me to report and recommend with respect to this motion. (ECF No. 35). For the reasons set forth below, I recommend that Herard's motion be granted in part and denied in part.
I. Background
A. Relevant Procedural History
Rosado's original complaint, dated November 27, 2012, was received by the Pro Se Office of this Court on December 7, 2012. (ECF No. 2). In that complaint, Rosado named Herard and two other individuals as defendants. By order dated February 1, 2013, Your Honor dismissed the claims against the other defendants for failure to allege their personal involvement. (ECF No. 11). Thereafter, on July 19, 2013, Herard served her motion to dismiss the claims against her. (See ECF Nos 29, 30, 33). In response, Rosado filed the Amended Complaint, which named only Herard - individually and in her official capacity - as a defendant. (ECF No. 25, ¶ 5). Rosado also filed both an affirmation, (ECF No. 36 ("Rosado Affirm.")), and a declaration, (ECF No. 37 ("Rosado Decl.")), in opposition to Herard's motion to dismiss, after which Herard filed a reply, (ECF No. 38 ("Reply Mem.")). The motion consequently is fully submitted.
By letter dated August 20, 2013, Herard requested that her papers in support of her motion to dismiss the initial complaint be deemed to address the claims in the Amended Complaint. (ECF No. 29).
B. Facts
Unless otherwise noted, the following facts, taken from the Amended Complaint and Rosado's opposition papers, are presumed to be true.
Rosado is currently in the custody of the New York City Department of Correction ("DOC") at Rikers Island. (Am. Compl. ¶ 4). On July 17, 2012, Rosado was assigned to the Rikers Mental Health Assessment Unit for Infracted Inmates ("MHAUII") for disciplinary reasons. (Id. ¶ 6; see Def.'s Mem. in Supp. of Mot. to Dismiss, ECF No. 32 ("Def.'s Mem.") at 2). Herard is a licensed mental health clinician responsible for the welfare of detainees in the MHAUII. (Am. Compl. ¶ 5).
Rosado was not permitted to attend "therapeutic group sessions" while he was confined in the MHAUII. (Id. ¶ 7). Other inmates - "mainly Spanish speaking detainees" - also were prohibited from participating in these sessions. (Id.). African-American inmates, on the other hand, were permitted to participate. (Id. ¶ 12; Rosado Affirm. at 6). Rosado complained to Herard about being "denied access to his therapeutic group sessions," but received no response. (Am. Compl. ¶¶ 8-9). He therefore filed a complaint through the facility's Inmate Grievance and Request Program ("I.G.R.P.") in which he contested Herard's denial of his access to group sessions. (Id. ¶ 10).
On September 28, 2012 and October 7, 2012, Rosado filed two further complaints through the I.G.R.P. regarding these events. (Am. Compl. ¶¶ 18-19). The first grievance was "modif[ied] in [Rosado's] favor;" the second was denied as "non-grievable," but Commissioner Schriro forwarded his letter to the DOC Health Affairs Unit. (Id. ¶ 20).
Some time later, Herard was informed of the grievance against her. (Id. ¶ 11). She visited Rosado in his cell and "inquired as to why he [filed] a grievance." (Id. ¶ 12). Rosado responded by asking why "only African American[] inmates [were] allow[ed] to attend . . . group session[s] an[d] not Spanish speaking inmates." (Id.). Herard then "became [agitated] and [belligerent]" and "stated out loud that [Rosado was] just mad because [he was] on the verge of dying because he[']s (H.I.V.-positive)." (Id. ¶ 13). In the days following this exchange, other detainees asked Herard what had occurred. (Id. ¶ 14). In her responses, Herard disclosed that "Rosado was indeed H.I.V.-positive." (Id.). As a result, Rosado's medical condition "became known throughout the prison." (Id. ¶ 16). Rosado alleges that, because of Herard's disclosures, he suffered "mental anguish" in the form of "depression, insomnia, scornful [harassment], headaches, inability to [concentrate], fatigue, [and] loss of appetite," "became annoyed [continually]," was "a target of gossip [and r]umor as well as harassment by prisoners which might lead to inmate on inmate violence," and has anxiety and panic attacks. (Id. ¶ 17).
II. Standard of Review
A Rule 12(b)(6) motion to dismiss for failure to state a claim "tests the legal sufficiency of [a] plaintiff's claim[s] for relief." Krasner v. HSH Nordbank AG, 680 F. Supp. 2d 502, 511 (S.D.N.Y. 2010) (Lynch, D.J.). In deciding the motion, the Court must accept as true all factual allegations made in a complaint and draw all reasonable inferences in favor of the plaintiff. Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). A complaint need not contain "detailed factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Nonetheless, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555).
To survive a Rule 12(b)(6) motion, a complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). Determining whether the allegations of a complaint nudge a plaintiff's claims across the line from merely "conceivable to plausible" requires the Court to "draw on its judicial experience and common sense." Id. at 679-80. In making its assessment, the Court may consider, in addition to a plaintiff's factual averments, any written instrument upon which the plaintiff necessarily relies, regardless of whether it is attached to the complaint or incorporated therein by reference, Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002), as well as any public records, including complaints filed in state court, Blue Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004). When a plaintiff is proceeding pro se, the Court also may rely on any opposition papers in assessing the legal sufficiency of the plaintiff's claims. See Crum v. Dodrill, 562 F. Supp. 2d 366, 374 n.13 (N.D.N.Y. 2008) (citing Gadson v. Goord, No. 96 Civ. 7544 (SS), 1997 WL 714878, at *1 n.2 (S.D.N.Y. Nov. 17, 1997)). Furthermore, the Court may take judicial notice of indisputable facts. See Fed. R. Evid. 201. Legal conclusions masquerading as factual averments, however, may not be taken into account. Twombly, 550 U.S. at 555.
The Court must read pro se pleadings "liberally" and interpret them "to raise the strongest arguments" that they may suggest. Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (quoting Harris v. City of N.Y., 607 F.3d 18, 24 (2d Cir. 2010)). "Dismissal of a pro se complaint is nevertheless appropriate where a plaintiff has clearly failed to meet minimum pleading requirements." Carvel v. Ross, No. 09 Civ. 722 (LAK) (JCF), 2011 WL 856283, at *8 (S.D.N.Y. Feb. 16, 2011).
III. Discussion
Construing the Amended Complaint liberally, Rosado appears to claim that Herard violated his rights under the Privacy Act, the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), the Americans with Disabilities Act ("ADA"), the Rehabilitation Act, the First and Fourteenth Amendments to the United States Constitution, and New York State law. I will address each of these claims in turn.
A. Privacy Act
Rosado claims that Herard violated his rights under the Privacy Act, 5 U.S.C. § 552A(E)(9), by failing to maintain the confidentiality of his medical information. (Am. Compl. ¶ 22). Although the Privacy Act authorizes private suits against agencies for violations of its provisions, "individual officers are not proper parties to a Privacy Act action." Mandel v. U.S. Office of Pers. Mgmt., 244 F. Supp. 2d 146, 153 (E.D.N.Y. 2003), aff'd, 79 Fed. App'x 479 (2d Cir. 2003) (citing Bavido v. Apfel, 215 F.3d 743, 747 (7th Cir. 2000); Connelly v. Comptroller of the Currency, 876 F.2d 1209, 1216 (5th Cir. 1989); Brown-Bey v. United States, 720 F.2d 467, 469 (7th Cir. 1983)). Accordingly, Rosado's Privacy Act claim should be dismissed.
B. HIPAA
Rosado's next claim is that Herard violated HIPAA, 42 U.S.C. § 1320, et seq., by revealing his HIV status to other inmates. HIPAA requires health care providers to keep patient medical records confidential. Id. Courts overwhelmingly have concluded, however, that a patient does not have a private right of action under HIPAA. See, e.g., Mascetti v. Zozulin, No. 3:09 Civ. 963 (PCD), 2010 WL 1644572, at *4 (D. Conn. Apr. 20, 2010); Cassidy v. Nicolo, No. 03 Civ. 6603 (CJS), 2005 WL 3334523, at *5 (W.D.N.Y. Dec. 7, 2005) (collecting cases). Rosado's HIPAA claim therefore should be dismissed.
C. ADA and Rehabilitation Act
Rosado also seeks to assert claims under the ADA and the Rehabilitation Act. Herard argues that the Court should not consider these claims because Rosado first asserted them in his opposition papers. (Reply Mem. at 4).
In evaluating the legal sufficiency of a pro se plaintiff's claims, a court may rely on the plaintiff's opposition papers. See Crum, 562 F. Supp. 2d at 374 n.13 (citing Gadson, 1997 WL 714878, at *1 n.2). This extension of the usual principles applicable to a Rule 12(b)(6) motion applies to factual allegations that are consistent with those contained in the complaint. Richardson v. New York, 10 Civ. 6137 (SAS), 2012 WL 76910, at *1 n.10 (S.D.N.Y. Jan. 9, 2012) (citing Cusamano v. Sobek, 604 F. Supp. 2d 416, 461 (N.D.N.Y. 2009)). Entirely new claims, however, are not given such liberal treatment. See Pandozy v. Segan, 518 F. Supp. 2d 550, 554 n.1 (S.D.N.Y. 2007), aff'd, 340 F. App'x 723 (2d Cir. 2009) (new claims raised in pro se plaintiff's opposition papers not considered by Court on motion to dismiss); Bernstein v. City of N.Y., 06 Civ. 895 (RMB), 2007 WL 1573910, at *10 (S.D.N.Y. May 24, 2007) (same).
Here, Rosado's Amended Complaint expressly states that he asked Herard "why he [was] being denied access" to "therapeutic group session[s] that detainees are entitled to under the directive ([reasonable] accommodation for people with mental/[physical] disabilities)." (Am. Compl. ¶ 8). Liberally construed, this statement may be read to assert an ADA claim, even if Rosado first expressly referred to the ADA in his opposition papers.
Nonetheless, as Herard correctly observes, Rosado may not seek money damages under the ADA because the statute does not permit claims for money damages against natural persons in either their individual or their official capacities. See Harris v. NYU Langone Med. Ctr., No. 12 Civ. 0454 (RA) (JLC), 2013 WL 3487032, at *29 (S.D.N.Y. July 9, 2013) (collecting cases). Accordingly, to the extent Rosado seeks money damages under the ADA, his claim should be dismissed.
Turning to his Rehabilitation Act claim, both the ADA and the Rehabilitation Act require essentially the same proof to state a claim. Clarkson v. Coughlin, 898 F. Supp. 1019, 1037 (S.D.N.Y. 1995). Accordingly, the allegations in Rosado's Amended Complaint suffice to assert a Rehabilitation Act claim. (Am. Compl. ¶ 8). Like the ADA, however, the Rehabilitation Act does not permit a plaintiff to recover money damages from a natural person in her individual or official capacity. Keitt v. New York City, 882 F. Supp. 2d 412, 426 (S.D.N.Y. 2011) ("Individuals in their personal capacities are not proper defendants on claims brought under the ADA or the Rehabilitation Act.") (citing Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)); Maus v. Wappingers Cent. Sch. Dist., 688 F. Supp. 2d 282, 302 n.10 (S.D.N.Y. 2010) ("[I]ndividuals cannot 'be named as defendants in ADA or Rehabilitation Act suits in their official or representative capacities.'") (quoting Sutherland v. N.Y. State Dep't of Law, No. 96 Civ. 6935 (JFK), 1999 WL 314186, at *7 (S.D.N.Y. May 19, 1999)). Accordingly, here again, to the extent Rosado seeks to recover damages, his claim must be dismissed.
Notwithstanding the limitations on damage recoveries, both the ADA and Rehabilitation Act permit an award of injunctive relief against an individual defendant sued in an official capacity. Harris, 572 F.3d at 72-73 (citing Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003)). As a consequence, to the extent that Rosado seeks non-monetary relief against Herard in her official capacity, the motion to dismiss should be denied.
To proceed against Herard in her official capacity under the Rehabilitation Act, Rosado also must show that DOC was a recipient of "Federal financial assistance." See 29 U.S.C. § 794(a); Henrietta D., 331 F.3d at 272. Herard does not appear to contest Rosado's assertion that DOC received such funding. (See Rosado Affirm. at 8; Reply Mem. at 4-5).
D. Section 1983
Section 1983 itself confers no substantive rights. Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). Accordingly, to state a claim under Section 1983, a plaintiff must allege that a defendant acting under color of state law has deprived him of a right, privilege, or immunity guaranteed by the United States Constitution. See 42 U.S.C. § 1983. In this case, Rosado alleges, and Herard does not deny, that Herard acted under color of state law. (See Am. Compl. ¶ 1). Rosado therefore has stated the predicate for his constitutional claims. For the reasons set forth below, however, only one of those claims should be permitted to proceed.
1. Constitutional Right to Privacy
The Supreme Court has held that the Fourteenth Amendment and other provisions of the United States Constitution and Bill of Rights give rise to a "right of personal privacy." See Roe v. Wade, 410 U.S. 113, 152 (1973). This right incorporates an individual's "interest in avoiding disclosure of [certain] personal matters." Whalen v. Roe, 429 U.S. 589, 599 (1977). These "personal matters" include an individual's HIV status. Doe v. City of N.Y., 15 F.3d 264, 267 (2d Cir. 1994). Inmates and detainees do not automatically shed this protection when they are taken into custody. See Powell v. Schriver, 175 F.3d 107, 112 (2d Cir. 1999). Nevertheless, the right of privacy is not absolute. See Whalen, 429 U.S. at 602 (disclosure of certain medical information for public health purposes is not "impermissible invasion of privacy"). For example, the right of privacy extends only to "previously undisclosed medical information." Powell, 175 F.3d at 112. Medical information that has entered the public domain through such means as a publicly-available court filing is no longer protected. See Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 n.11 (2d Cir. 2004) ("Once [information] is public, it necessarily remains public.").
Liberally construed, the Amended Complaint alleges that Herard violated Rosado's constitutional right to privacy by revealing his HIV status to other detainees. (Am. Compl. ¶¶ 13-14). Herard seeks dismissal of this claim on the theory that she could not have invaded Rosado's privacy rights because Rosado himself previously had disclosed his HIV status in a public court filing in Florida in 2011. (ECF No. 31 (Decl. of Ass't Corp. Counsel Jeffrey S. Dantowitz, dated July 19, 2013 ("Dantowitz Decl."), Ex. 1)).
In his Florida filing, Rosado stated that his "chronic medical ailment is Human Immunodeficiency Virus." (Dantowitz Decl., Ex. 1). By voluntarily admitting that he was HIV-positive, Rosado made his HIV status a matter of public record, thereby waiving his constitutional right to privacy with respect to this information. Accordingly, because Rosado's HIV status was no longer private as of 2011, any further disclosure that Herard may have made cannot give rise to a constitutional violation. Rosado's constitutional right to privacy claim therefore should be dismissed.
2. Equal Protection
Rosado further alleges that Herard violated the Equal Protection Clause of the Fourteenth Amendment by allowing African-American detainees to attend group sessions, but not affording "Spanish speaking detainees" the same opportunity. (Am. Compl. ¶ 7).
"The Equal Protection Clause requires the government to treat all similarly situated people alike." African Trade & Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355, 362 (2d Cir. 2002). The clause "does not forbid classifications" altogether, but "keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike." Pugh v. Goord, 571 F. Supp. 2d 477, 502 (S.D.N.Y. 2008) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)). "[A]bsent a compelling state interest, racial discrimination in administering prisons violates the Equal Protection Clause." Santiago v. Miles, 774 F. Supp. 775, 797 (W.D.N.Y. 1991) (quoting Black v. Lane, 824 F.2d 561, 562 (7th Cir. 1987)). In order to establish an equal protection violation, a plaintiff bears the burden of demonstrating "purposeful discrimination . . . directed at an identifiable or suspect class." Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995) (citation omitted).
a. Suspect Class
Rosado alleges that he and other Spanish-speaking inmates were treated differently than African-American inmates because they were denied the opportunity to participate in group therapy sessions. (Am. Compl. ¶ 7, 12). Herard contends that this claim must be dismissed because "language does not identify members of a suspect class." (Def.'s Mem. at 8) (citing Soberal-Perez v. Heckler, 717 F.2d 36, 42 (2d Cir. 1983)). Although language by itself may not give rise to a suspect class, ethnicity does, and "Hispanics as an ethnic group do constitute a suspect class for the purpose of equal protection analysis." Soberal-Perez, 717 F.2d at 41 (citing Keyes v. Sch. Dist. No. 1, 413 U.S. 189, 197 (1973); Hernandez v. Texas, 347 U.S. 475, 477-79 (1954)).
Herard maintains that Rosado has failed to allege that her "conduct in not allowing [Rosado] to attend group sessions was based on his ethnicity." (Def.'s Mem. at 8). Herard is correct that Rosado generally uses the term "Spanish speaking" to describe the victims of the discrimination he alleges. (See Am. Compl. ¶¶ 7, 11-12). Nevertheless, Rosado does not allege that detainees were denied access to group therapy based on their language ability. In context, it seems clear that Rosado used the term "Spanish speaking" as a surrogate for the word "Hispanic" in describing the wrong that he suffered. Indeed, he compares the participation of "African American" detainees to the exclusion of "Hispanics" and also mentions "segregation" and "Jim Crow" in his I.G.R.P. complaints. (Rosado Decl., Exs. A-1, A-2, B-1; Am. Compl. ¶ 11-12). Construed liberally, Rosado's averments more than suffice to allege the differential treatment of a suspect class.
b. Discriminatory Intent
Rosado's Equal Protection claim nevertheless fails to plausibly allege discriminatory intent on the part of Herard. Discriminatory intent "requires more than 'intent as volition or intent as awareness of consequences.'" Iqbal, 556 U.S. at 676 (quoting Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979)). To plead discriminatory intent, a plaintiff must show that a defendant acted "'because of,' not merely 'in spite of,' [the] adverse effects upon an identifiable group." Id. at 677. Rosado has alleged no facts from which the Court can infer such intent. At most, Rosado claims that he complained to Herard about the situation and received no response. (Am. Compl. ¶¶ 8-9). Nowhere in his papers does Rosado allege that Herard ever referred to his ethnicity, or any other fact from which discriminatory intent reasonably could be inferred. Rosado "would need to allege more by way of factual content to 'nudg[e]' his claim of purposeful discrimination 'across the line from conceivable to plausible.'" Iqbal, 556 U.S. at 683 (quoting Twombly, 550 U.S. at 570). Accordingly, this claim should be dismissed.
3. Due Process
Herard acknowledges that Rosado's Amended Complaint can also be read to raise a "stigma plus" claim under the Fourteenth Amendment Due Process Clause based on her alleged disclosure of his HIV status to other detainees. (Def.'s Mem. at 13-14). To state such a claim in this context, a plaintiff must allege "[a] the utterance of a [false] statement about h[im] that is injurious to h[is] reputation . . . and [b] 'some tangible and material state-imposed burden . . . in addition to the stigmatizing statement.'" Velez v. Levy, 401 F.3d 75, 87 (2d Cir. 2005) (quoting Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001), rev'd on other grounds, Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1 (2003)). Rosado cannot plausibly allege such a claim here because the statements he says Herard made are true. Rosado has previously admitted as much in court filings. (Dantowitz Decl., Ex. 1). In fact, Rosado brings claims in this action that directly depend on his HIV-positive status. (See Rosado Affirm. at 9 (arguing that Rosado has a claim under the Rehabilitation Act because Herard "categorically denie[d]" him "access to his therapeutic group sessions" because he is "H.I.V.-positive")). Rosado also has supplied the Court with documentation confirming his diagnosis. (See Rosado Affirm. Attach. (Progress Notes dated 11/11/11, 11/15/11, 12/12/11)). Absent a showing that Herard made a statement that falsely stigmatized Rosado, any "stigma plus" claim that he may have asserted should be dismissed.
4. Fourteenth Amendment Deliberate Indifference
Although Herard reads the Amended Complaint as asserting an Eighth Amendment deliberate indifference claim, (see Def.'s Mem. at 9-13), when such claims are brought by pretrial detainees, rather than convicted prisoners, they arise under the Fourteenth - not the Eighth - Amendment. See Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009). Both types of claims, however, are subject to the same standard. Id. at 72. Accordingly, to prevail on his claim that Herard showed deliberate indifference to his medical needs, Rosado must show that (a) objectively, the condition was a "sufficiently serious" violation of his constitutional rights; and (b) subjectively, Herard had a state of mind of "deliberate indifference" to his health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Even liberally construed, Rosado's Amended Complaint does not come close to plausibly alleging these required elements of his claim.
a. Serious Violation
At the outset, Rosado has not alleged a "sufficiently serious" violation of his rights. In assessing whether a deprivation is "sufficiently serious," courts look to the following factors: "[i] whether 'a reasonable doctor or patient would find [it] important and worthy of comment,' [ii] whether the condition 'significantly affects an individual's daily activities,' and [iii] whether it causes 'chronic and substantial pain.'" Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006) (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)). "When a prisoner alleges a complete denial of adequate medical care, courts must evaluate the seriousness of the prisoner's underlying medical condition." Hamm v. Hatcher, No. 05 Civ. 503 (ER), 2013 WL 71770, at *8 (S.D.N.Y. Jan. 7, 2013) (citing Bellotto v. Cnty. of Orange, 248 F. App'x 232, 236 (2d Cir. 2007)). When a prisoner concedes that medical care was given, but contends that it was inadequate, the "inquiry is 'narrower.'" Id. (quoting Salahuddin, 467 F.3d at 280). In that situation, the analysis "focus[es] on the particular risk of harm that resulted . . . rather than the severity of the prisoner's underlying medical condition." Id. (citing Salahuddin, 467 F.3d at 280).
Here, Rosado does not contend that DOC failed to address his auto-immune disease or the psychological sequellae that might be expected to ensue, or that the agency ignored his known mental health diagnoses. Indeed, he himself has furnished the Court with numerous Progress Notes indicating that he was receiving care and treatment by Correctional Health Services. (See Rosado Affirm. Attach.). The only issue that Rosado raises with respect to his treatment is the alleged denial of therapeutic group sessions. Rosado's allegations, in essence, amount to "a disagreement regarding the proper course of medical treatment." Mills v. Luplow, 391 F. App'x 948, 950 (2d Cir. 2010). Such a disagreement, however, does not provide the basis for a constitutional claim. Chance, 143 F.3d at 703. At best, Rosado has alleged that group sessions "enable[] patient[s] to avoid the unnecessary suffering of acute episodes of mental illness" and that, without such sessions, "repeated acute episodes can be [predicted]." (Rosado Affirm. at 7). This allegation is wholly conclusory. Moreover, even if it were assumed to be true, a detainee's increased emotional distress does not rise to the level of a constitutional violation. In order to rise to that level, the deprivation must cause "a condition of urgency, one that may produce death, degeneration, or extreme pain." Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (quoting Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J., dissenting)); see also Wilson v. Seiter, 501 U.S. 294, 298 (1991) ("The Constitution . . . 'does not mandate comfortable prisons,' and only those deprivations denying 'the minimal civilized measure of life's necessities' . . . form the basis of [a constitutional] violation.") (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 349) (1981) (internal citation omitted)). Significantly, Rosado does not allege that he himself suffered any psychological damage as a result of the denial of group sessions. Rather, he alleges only that this "could" be the result. (See Rosado Affirm. at 7). This plainly is not enough to meet the objective prong of the deliberate indifference test.
b. Deliberate Indifference
Even if the deprivation of group sessions were a "sufficiently serious" violation, Rosado has not plausibly alleged that Herard acted with "deliberate indifference." Farmer, 511 U.S. at 834. Deliberate indifference is "something more than mere negligence, . . . [but] something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." Farmer, 511 U.S. at 835; see Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (likening deliberate indifference to "the equivalent of criminal recklessness") (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)). This threshold is met when defendants are "aware of facts from which the inference could be drawn that a substantial risk of serious harm exists" and they, in fact, draw that inference. Farmer, 511 U.S. at 837.
In an attempt to satisfy this element of his deliberate indifference claim, Rosado alleges that (i) Herard knew that he suffered from "bipolar [and] anti-social personality [disorder]," (ii) group sessions allow inmates to "interact with one another so that they [may] practice their social [and] listening skills," (iii) group sessions were provided to some inmates, (iv) "group sessions enable[] patient[s] to avoid the unnecessary suffering of acute episodes of mental illness," and (v) without such sessions, "repeated acute episodes can be [predicted]." (Rosado Affirm. at 6-7). Assuming that all this is true, Rosado still has not shown that Herard acted with deliberate indifference. Rather, Herard may simply have had a different view of Rosado's need for these additional services. Absent some showing that Herard knew that Rosado faced a risk of "serious harm" unless he attended group sessions, there is no basis on which a finder of fact could plausibly conclude that she acted with deliberate indifference. Furthermore, Rosado's conclusory statements to the contrary are, as a matter of law, insufficient to fill the gap. Twombly, 550 U.S. at 555.
Accordingly, Rosado's Fourteenth Amendment deliberate indifference claim should be dismissed.
5. Retaliation
Rosado also alleges that Herard revealed his HIV status to other inmates in retaliation for his filing of grievances. See Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996) ("[R]etaliation against a prisoner for pursuing a grievance violates the right to petition government for the redress of grievances guaranteed by the First and Fourteenth Amendments and is actionable under § 1983."). To state a First Amendment claim for retaliation, Rosado must demonstrate that: (a) he was engaged in constitutionally-protected activity; (b) Herard took adverse action against him; and (c) there was a causal connection between the protected activity and the adverse action. Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004). Furthermore, "because prisoner retaliation claims are 'easily fabricated,' and accordingly 'pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration,' [courts] are careful to require non-conclusory allegations." Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003) (quoting Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)).
Rosado has sufficiently alleged that he was engaged in the constitutionally-protected activity of filing grievances. (Am. Compl. ¶ 10). Rosado also has sufficiently alleged that he suffered an adverse action. An "adverse action" is defined as "retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights." Dawes, 239 F.3d at 493. Although purely "inconsequential" actions are not sufficient to meet this threshold, actions need not be egregious or constitute stand-alone constitutional violations to state a claim for relief. Bell v. Johnson, 308 F.3d 594, 603 (6th Cir. 2002) (citing Thaddeus-X v. Blatter, 175 F.3d 378, 386, 398 (6th Cir. 1999)). Here, although Rosado previously had revealed his HIV status in a public court filing, there is no indication that this information was public knowledge at the MHAUII prior to the events giving rise to this claim. The disclosure of this information, in the very location where Rosado was lodged, consequently might well have "deter[red] a similarly situated individual of ordinary firmness from exercising his . . . constitutional rights." Dawes, 239 F.3d at 493.
To satisfy the causal connection element of his retaliation claim, Rosado must plausibly allege that his protected conduct was "a substantial or motivating factor for the adverse actions taken by prison officials." Bennett, 343 F.3d at 137. One way of establishing this causal connection is to show that the protected activity was followed closely in time by an adverse action. Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009). In Espinal, the Second Circuit concluded that an inference of a causal connection could be drawn despite the passage of six months between the protected activity and the alleged retaliatory action. Id. In this case, barely a week elapsed between Rosado's constitutionally-protected grievance and the alleged disclosure. (See Am. Compl. ¶¶ 11-14; Rosado Decl., Ex. B-1). Indeed, it occurred (at least in part) during a conversation between Rosado and Herard regarding his grievance. (Am. Compl. ¶¶ 12-13). These facts are enough to raise a plausible claim that Herard's disclosure of his private medical information was causally related to Rosado's grievance filing.
For these reasons, Herard's motion to dismiss Rosado's retaliation claim should be denied.
E. New York State Law Claims
In addition to his federal claims, Rosado asserts a number of state law claims. Herard has not contested the sufficiency of any of these claims. Liberally construing Rosado's filings, he brings state law claims for negligence, intentional infliction of emotional distress, defamation, and violation of New York Corrections Law § 137(5) and New York Public Health Law § 2782(3). A federal court may exercise supplemental jurisdiction over such state law claims when a federal claim vests the court with subject matter jurisdiction and the state and federal claims "derive from a common nucleus of operative fact." United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966). All of Rosado's state claims arise out of the same events as his federal claims. They therefore share this "common nucleus." See id.
Nonetheless, a district court "may decline to exercise supplemental jurisdiction . . . if (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction." 28 U.S.C. § 1367(c). Although Herard originally contended that Rosado had failed to comply with the notice of claim requirements under New York law, (see Def.'s Mem. at 16-17 (citing N.Y. Gen. Mun. Law §§ 50-e, 50-i)), she since has retreated from this line of defense, (see Reply Mem. at 6). Accordingly, Herard's only remaining argument is that the Court should decline to exercise supplemental jurisdiction over Rosado's state law claims because there is no "cognizable federal claim." (Def.'s Mem. at 17). Should Your Honor adopt this Report and Recommendation, however, Rosado's federal retaliation claim and aspects of his ADA and Rehabilitation Act claims will survive. In these circumstances, Section 1367(c)(3) obviously would not apply.
F. Limitation of Damages Under the Prison Litigation Reform Act
Finally, Herard seeks an order dismissing Rosado's claims to the extent that they do not allege a physical injury. The Prison Litigation Reform Act ("PLRA") provides in that regard that "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). The courts have interpreted this language to mean that a prisoner "cannot recover damages for mental or emotional injury for a constitutional violation in the absence of a showing of actual physical injury." Thompson v. Carter, 284 F.3d 411, 417 (2d Cir. 2002). Section 1997e(e), however, does not contain any limitations on injunctive or declaratory relief, nominal and punitive damages, or damages for a physical injury or mental or emotional injury suffered in addition to a physical injury. See id. at 418-19.
Herard's motion mistakenly assumes that, where no physical injury is alleged, the only injury that a plaintiff may suffer as a result of retaliation is mental or emotional harm. The Second Circuit has held, however, that intangible deprivations of liberty and personal rights are distinct from claims for pain and suffering, mental anguish, and mental trauma. See Kerman v. City of N.Y., 374 F.3d 93, 125 (2d Cir. 2004) ("The damages recoverable for [a plaintiff's Fourth Amendment claims] are separable from damages recoverable for such injuries as physical harm, embarrassment, or emotional suffering."). Accordingly, the PLRA's physical injury requirement does not bar an award of compensatory damages for First Amendment violations. See Rowe v. Shake, 196 F.3d 778, 781-82 (7th Cir. 1999) ("A prisoner is entitled to judicial relief for a violation of his First Amendment rights aside from any physical, mental, or emotional injury he may have sustained."); Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998) (Section 1997e(e) "does not apply to First Amendment [c]laims regardless of the form of relief sought."); Lipton v. Cnty. of Orange, N.Y., 315 F. Supp. 2d 434, 457 (S.D.N.Y. 2004) (an exception to the PLRA's physical injury requirement exists where a prisoner's claims arise under the First Amendment); Cancel v. Mazzuca, 205 F. Supp. 2d 128, 138 (S.D.N.Y. 2002) (PLRA "does not present an obstacle to" First Amendment claim).
Furthermore, even when a claim potentially is subject to the PLRA, the confined plaintiff need not plead physical injury in his complaint. See Frieson v. City of N.Y., No. 11 Civ. 4611 (JGK), 2012 WL 1948782, at *2 (S.D.N.Y. May 30, 2012) (denying motion to limit damages pursuant to Section 1997e(e) because, "at the motion to dismiss stage, the Court cannot, and need not, conclusively resolve the factual question of whether or not the plaintiff suffered physical injury in addition to his claimed mental and emotional injury"). Herard's application to foreclose Rosado from receiving any compensatory damages therefore is premature.
IV. Conclusion
For the reasons set forth above, the Defendant's motion to dismiss (ECF No. 30) should be granted in part and denied in part. Rosado should be permitted to proceed with his First Amendment retaliation claim, his ADA and Rehabilitation Act claims to the extent that he seeks non-monetary relief against Herard in her official capacity, and his state law claims. His remaining claims should be dismissed.
V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that any objections to this Report and Recommendation must be served and filed with the Clerk of the Court within fourteen days from today, with copies sent to the chambers of the Honorable Paul G. Gardephe, United States District Judge, at the Thurgood Marshall Courthouse, 40 Centre Street, New York, New York, 10007 and to the chambers of the undersigned, at the Daniel Patrick Moynihan Courthouse, 500 Pearl Street, New York, New York, 10007. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Gardephe. The failure to file timely objections will result in a waiver of those objections for purposes of an appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010). Dated: New York, New York
November 25, 2013
/s/_________
FRANK MAAS
United States Magistrate Judge Copies to: Tyrone Rosado
241-11-05751
George Motchan Detention Center (GMDC)
15-15 Hazen Street
East Elmhurst, NY 11370 Defense Counsel via ECF