Murnsv.City of New York

United States District Court, S.D. New YorkMay 15, 2001
00 CIV. 9590 (DLC) (S.D.N.Y. May. 15, 2001)

00 CIV. 9590 (DLC)

May 15, 2001

George Wachtel, Daniel Perez, Ronald L. Kuby, Law Office of Ronald L. Kuby, New York, NY, for plaintiff.

Ronald Gade, M.D., St. Barnabas Correctional Health Systems, Inc., and Doctors Roe One through Ten:, Andrew Zwirling, Garbarini Scher New York, NY, for defendants St. Barnabas Health Care Systems.


DENISE COTE, United States District Judge.

The plaintiff's daughter committed suicide while an inmate at Rikers Island. The plaintiff has sued, among others, those in charge of medical care at the prison on the theory that their deliberate indifference to the decedent's medical condition directly contributed to her death.

Defendants St. Barnabas Health Care Systems ("St. Barnabas"), St. Barnabas Correctional Health Systems, Inc. ("St. Barnabas Correctional"), and Ronald Gade, M.D. (together "medical defendants"), move to dismiss certain of the claims against them pursuant to Rule 12(b)(6), Fed.R.Civ.P. For the reasons stated below, their motion is granted in part.


The facts as alleged by plaintiff are as follows. On November 22, 1999, plaintiff's 18-year old daughter, Susan K. Murns ("Murns"), committed suicide by hanging herself from a light fixture in her cell while she was detained in the general population at the Rikers Island Correctional Facility ("Rikers Island"). She had attempted suicide at least four other times during the previous two years, including while at Rikers Island in late August 1999, all of which was documented in her Rikers Island medical records. Murns' medical history included other conduct and behavior that the defendants knew were indicia of high suicide risk, such as self-mutilation and addiction to heroin and other drugs.

Defendant City of New York (the "City") operated and administered Rikers Island through its subdivision, the New York City Department of Corrections, and was ultimately responsible for the care and safety of its inmates. Defendant Bernard C. Kerik was the City's Commissioner of Corrections. Defendant New York City Health and Hospitals Corporation ("HHC") is a municipally operated corporation, which is responsible for the medical and mental health facilities, policies, and procedures at Rikers Island. HHC performed its obligations through its subdivision, the HHC Office of Correctional Health Services. Defendant Luis R. Marcos, M.D. was the President of HHC.

Through its contract with the City, St. Barnabas was the primary on-site provider of medical and mental health care to inmates at Rikers Island. Defendant Ronald Gage, M.D. was the Chief Executive Officer of St. Barnabas. Defendant St. Barnabas Correctional, an affiliate of St. Barnabas, administered the delivery of health care services to inmates at Rikers Island.

The Mental Health Policy and Procedures manual of CHS ("Mental Health Manual") requires that medical and correctional personnel at Rikers Island place inmates known to be at risk of suicide under preventive supervision. The Mental Health Manual also requires that medical and mental health personnel at Rikers Island provide psychological counseling and medical treatment to inmates who exhibit symptoms such as those that Murns exhibited. Plaintiff alleges on information and belief that Murns was not receiving psychological counseling or medical treatment at Rikers Island during the period before she died.

Under the terms of the contract between St. Barnabas and the City, St. Barnabas was paid $342 million over three years and it was permitted to retain any funds it did not spend in performing the contract. The complaint alleges that in order to increase profits, St. Barnabas "significantly reduced" the level of staffing and funding at Rikers Island, as compared to the previous contract holder, Montefiore Hospitals Corporation ("Montefiore"). St. Barnabas also instituted policies that "narrowed" inmate access to medical services. Plaintiff alleges on information and belief that such policies applied restrictive criteria on inmates' eligibility for mental health services, which encouraged St. Barnabas staff at Rikers Island to limit or deny psychological help to inmates such as Murns. Some examples of the limitations that St. Barnabas placed on access to medical services included: a 57% reduction in referrals to off-island hospitals as compared to Montefiore; a reduction of the per diem staff pool to fill shift vacancies to 50 people as compared to 200 under Montefiore; and the substitution of experienced physicians with recently trained physicians or with physician's assistants. As a result of these and other cost-cutting measures, St. Barnabas earned profits of 14% to 18%, while the quality of inmate health care at Rikers Island "deteriorated dramatically." Plaintiff further asserts that the average suicide rate of New York Corrections Department inmates in the first two years of the St. Barnabas contract rose by 50% compared to the rate during the last four years of the Montefiore contract.

Plaintiff asserts that the profit "norm" in the prison health care industry is 6% to 10%.

Plaintiff brings this action for equitable relief and damages to remedy violations of his daughter's constitutional rights and rights under New York State law. The medical defendants move to dismiss the Section 1983 claim as well as the state law claims for breach of contract, negligent hiring, wrongful death, and intentional infliction of emotional pain and suffering.


A court may dismiss an action pursuant to Rule 12(b)(6), Fed.R.Civ.P., only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which will entitle him to relief.'" Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In considering the motion, the court must take "as true the facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor." Jackson Nat'l Life Ins. v. Merrill Lynch Co., 32 F.3d 697, 699-700 (2d Cir. 1994). The court can dismiss the claim only if, assuming all facts alleged to be true, the plaintiff still fails to plead the basic elements of a cause of action.

A. Section 1983

The medical defendants assert that plaintiff has failed to state a claim against them under Section 1983 of Title 42, United States Code ("Section 1983"), because (1) St. Barnabas and St. Barnabas Correctional lack final policymaking authority with respect to inmate health services; (2) plaintiff has not alleged sufficient facts to plead a cause of action against the medical defendants; and (3) the medical defendants are qualifiedly immune from suit under Section 1983.

1. Policymaking Authority

The medical defendants do not dispute that they were acting under the color of state law in administering health care to Rikers Island inmates through the contract St. Barnabas had with the City and HHC. See Kia P. v. McIntyre, 235 F.3d 749, 757 (2d Cir. 2000) (private entities performing governmental functions are state actors). Nor do they deny that they are "persons" subject to suit under Section 1983. Rather, they contend that, because neither St. Barnabas nor St. Barnabas Correctional had final policymaking authority with respect to inmate health services, the civil rights claims against the two corporate defendants must be dismissed.

The liability of St. Barnabas and St. Barnabas Correctional cannot be based simply on misconduct by one of their employees. There is no liability under Section 1983 based on an assertion of the doctrine of respondeat superior. As defendants correctly observe, "[m]unicipal liability under § 1983 occurs, if at all, at the level of policy-making, and cannot be premised on a theory of respondeat superior." Ciraolo v. City of New York, 216 F.3d 236, 242 (2d Cir. 2000) (citing Monell v. Department of Social Servs., 436 U.S. 658, 694 (1978)). Similarly, vicarious liability may not be imposed on private employers. See Scott v. Abate, No. CV-93-4589 (CPS), 1995 WL 591306, at *9 (E.D.N Y Sept. 27, 1995); Temple v. Albert, 719 F. Supp. 265, 267-68 (S.D.N.Y. 1989).

Under Monell, a municipality can be liable for its employees' actions where the challenged actions resulted from official policy or practice, where that official policy or practice caused or led to plaintiff's injuries, and where the injuries amount to a violation of the plaintiff's federal rights. Monell, 436 U.S. at 691-94. A plaintiff must plead and prove that the local government's "policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy" caused the injury. Id. at 694; see Oklahoma City v. Tuttle, 471 U.S. 808, 818 (1985); Rookard v. Health and Hosps. Corp., 710 F.2d 41, 45 (2d Cir. 1983) (municipal corporation). A plaintiff may plead the existence of an illegal custom or policy by alleging facts that tend to support, at least circumstantially, that a municipality has "so failed to train its employees as to display a deliberate indifference" to constitutional rights. Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993).

Several cases have applied a Monell analysis to private hospitals performing governmental functions through their affiliation with a municipality. See, e.g., West v. City of New York, No. 88 Civ. 1801 (DC), 1996 WL 240161, at *4 (S.D.N.Y. May 8, 1996); Scott v. Abate, No. CV-93-4589 (CPS), 1995 WL 591306, at *9 (E.D.N.Y. Sept. 27, 1995); Johnson v. Department of Corrections, No. 92 Civ. 7716 (MGC), 1995 WL 121295, at *3 (S.D.N.Y. Mar. 21, 1995); King v. Morris, No. 86 Civ. 2829 (CSH), 1989 WL 49380, at *3 (S.D.N.Y. May 3, 1989). There are several conceptual hurdles, however, to the strict application of a Monell analysis to a private entity, even one that performs a governmental function under contract with the state. For example, and as illustrated by the parties' submissions with this motion, the traditional Monell analysis requires examination, inter alia, of whether a municipal official with "final policymaking authority" — an issue which is in turn governed by state law — has adopted a policy rendering the municipality liable. City of St. Louis v. Praprotnik, 485 U.S. 112, 123-26 (1988); Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000).

A similar analysis applies to supervisors who are sued under Section 1983. Supervisors are personally involved in the constitutional torts of those whom they supervise, and thus liable, when:

"(1) the [official] participated directly in the alleged constitutional violation, (2) the [official], after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the [official] created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the [official] was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the [official] exhibited deliberate indifference to the rights of [others] by failing to act on information indicating that unconstitutional acts were occurring."

Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)).

Here, plaintiff has alleged that St. Barnabas and St. Barnabas Correctional were charged, under the contract with the HHC, with responsibility for the medical care of Rikers Island inmates, that they actually set the policies that governed the provision of that care, and that those policies were responsible for the death of Murns. Plaintiff thus alleges more than a theory of respondeat superior. Plaintiff's allegations are sufficient to state a claim against St. Barnabas and St. Barnabas Correctional.

2. Deliberate Indifference

The medical defendants assert that plaintiff fails to state a claim against them for deliberate indifference under the Eighth Amendment. To state an Eighth Amendment claim for denial of adequate medical care, a plaintiff must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Estelle v. Gamble, 429 U.S. 97, 105 (1976). To meet this standard, the plaintiff must allege (1) a "sufficiently serious" condition, one that "may produce death, degeneration, or extreme pain," Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (citation omitted), and (2) that the defendant acted with a sufficiently culpable state of mind, which must be "the equivalent of criminal recklessness;" namely, when the official "knows of and disregards an excessive risk to inmate health or safety." Id. (citation omitted). Mere negligence or medical malpractice does not constitute deliberate indifference, id., nor do mere differences of opinion between the prisoner and the defendants concerning the proper course of treatment. Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998). Rather, officials must "intentionally deny or delay access to medical care or intentionally interfer[e] with the treatment once prescribed." Estelle, 429 U.S. at 104-05.

The parties have briefed this claim under the Eighth Amendment standard, which would apply to sentenced prisoners. The complaint is silent as to whether the decedent was a sentenced prisoner or a pretrial detainee. Since the Fourteenth Amendment standard for parallel claims made on behalf of detainees would not change the result here, Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996), the motion can be decided without any explicit representation regarding the decedent's status.

The plaintiff has sufficiently alleged that the medical defendants were aware of a substantial risk that Murns would commit suicide, and that despite this knowledge, they failed to treat Murns. The defendants do not contest that the risk of suicide is a serious condition. While they argue that differences of opinion regarding medical treatment, and negligent treatment do not support an Eighth Amendment claim, the plaintiff has alleged more. While the defendants argue that the plaintiff had no "right" to preventive supervision outside the general prison population, they do acknowledge that they had "a duty to use reasonable care to prevent suicidal mental patients from killing themselves." The plaintiff has alleged sufficient facts to claim a breach of that duty through deliberate indifference to the decedent's needs.

3. Qualified Immunity

The medical defendants next assert that the doctrine of qualified immunity protects them from liability under Section 1983 for the claims of deliberate indifference to medical needs since medical care is entitled to a presumption of correctness. Qualified immunity protects state actors sued in their individual capacity from a suit for damages. Johnson, 239 F.3d at 250; Lewis v. Cowen, 165 F.3d 154, 166 (2d Cir. 1999). A state actor is qualifiedly immune if either "(a) the defendant's action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law." Johnson, 239 F.3d at 250. The medical defendants do not deny that it was clearly established in November 1999, that inmates have a constitutional right to be protected against suicide. Given that concession, they may not rely on the deference given to medical personnel in making medical decisions to immunize their alleged inaction in this case. The plaintiff's allegations that they were deliberately indifferent to the decedent's medical needs defeat their resort to the defense of qualified immunity at this stage of the litigation.

B. Breach of Contract

St. Barnabas moves to dismiss the claim that it breached its contract with the City on the ground that Murns was not a third party beneficiary to the contract. Under New York law, "[a] third party claiming to be a beneficiary of a contract must demonstrate that the parties to the contract intended at the time of contracting to confer the benefit claimed." Conway v. Icahn Co., 16 F.3d 504, 509 (2d Cir. 1994). While a party need not be "specifically mentioned in a contract to be considered a third-party beneficiary," Newman Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 663 (2d Cir. 1996), the intent to benefit the party must be apparent "from the face of the agreement." Id. (citation omitted). See Owens v. Haas, 601 F.2d 1242, 1250 (2d Cir. 1976); California Public Employees' Ret. Sys. v. Shearman Sterling, 95 N.Y.2d 427, 434-35 (N.Y. 2000).

In Owens v. Haas, the Second Circuit found that the provisions of the contract providing for the safekeeping and protection of prisoners in that case "suggested" that "a federal prisoner who was injured in a county jail, could claim status as an intended beneficiary of the contract" between the United States Bureau of Prisons and Nassau County. Owens, 601 F.2d at 1250. This holding was entirely consistent with the principle that "[w]here performance is to be rendered directly to a third party under the terms of an agreement, that party must be considered an intended beneficiary." Flickinger v. Harold C. Brown Co., 947 F.2d 595, 600 (2d Cir. 1991) (citation omitted); see also Trepel v. City of New York, No. 98-CV-6327 (JG), 2000 WL 1364362, at *6 (E.D.N.Y. Sept. 11, 2000).

Under the contract here, St. Barnabas agreed to provide medical services to the inmates of City correctional facilities, and it performed the contract by providing medical services directly to the inmates. As alleged by plaintiff, the inmates were the intended beneficiaries of the contract between St. Barnabas and the City.

C. Negligent Hiring and Supervision

Plaintiff's claim for negligent hiring and supervision must be dismissed. Because plaintiff seeks to hold St. Barnabas and St. Barnabas Correctional liable for its employees' alleged medical malpractice, plaintiff's claim against them for negligent hiring cannot be maintained. "Where an employee is acting within the scope of his or her employment, the employer is liable under the theory of respondeat superior and no claim may proceed against the employer for negligent hiring or retention." Rossetti v. Board of Education, 716 N.Y.S.2d 460, 462 (App. Div. 2000); see also Liddell v. Slocum-Dickson Med. Group, P.C., 710 N.Y.S.2d 278, 278 (App.Div. 2000); Karoon v. New York City Transit Auth., 659 N.Y.S.2d 27, 29 (App.Div. 1997).

D. Emotional Pain and Suffering

The medical defendants move to dismiss the claim of intentional infliction of emotional distress on Murns. Under New York law, a claim for intentional infliction of emotional distress requires a showing of:

"(1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress."

Conboy v. AT T Corp., 241 F.3d 242, 258 (2d Cir. 2001) (quoting Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999)). The conduct must be "so outrageous in character" and "so extreme in degree, so as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Stuto, 164 F.3d at 827. "Whether the conduct alleged may be reasonably regarded as so extreme and outrageous as to permit recovery is a matter for the court to determine in the first instance." Id. Here, the plaintiff has not alleged conduct by the medical defendants that is sufficiently outrageous and extreme to support a claim for intentional infliction of emotional distress and the claim is dismissed. See e.g., Conboy, 241 F.3d at 258; Stuto, 164 F.3d at 828-29 (listing cases).


For the reasons stated, defendants' motion to dismiss is granted in part. Plaintiff's claims for negligent hiring and supervision and intentional infliction of emotional distress are dismissed.