Case 7:16-cv-00983-NSR-JCM Document 130 Filed 08/25/17 Page 1 of 61
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`ELAINE CASE, as Administratrix of the
`Estate of KASEEM J. PANKEY,
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`Plaintiff,
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`
`
`-against-
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`ADRIAN H. ANDERSON, individually and in his
`official capacity as Sheriff of the County of Dutchess;
`JOHN DOE (1) and RICHARD ROE (1), Deputy
`Sheriffs of the County of Dutchess; THE COUNTY
`OF DUTCHESS; RONALD J. SPERO, individually
`and in his official capacity as Chief of the Town of
`Poughkeepsie Police Department, JOHN DOE (2)
`and RICHARD ROE (2), Police Officers in the Town
`of Poughkeepsie Police Department; TOWN OF
`POUGHKEEPSIE; JOHN DOE (3) and RICHARD
`ROE (3), Police Officers and/or Dispatchers in the
`City of Poughkeepsie Police Department;
`WESTCHESTER MEDICAL CENTER HEALTH
`CARE CORPORATION, doing business as,
`WESTCHESTER MEDICAL CENTER, through its
`subsidiary, THE MIDHUDSON REGIONAL
`HOSPITAL OF WESTCHESTER MEDICAL
`CENTER; and CORRECTIONAL MEDICAL
`CARE, INC.,
`
`Defendants.
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`NELSON S. ROMÁN, United States District Judge
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`No. 16 Civ. 983 (NSR)
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`OPINION & ORDER
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`This case concerns the events surrounding the pre-trial detainment and eventual suicide
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`of Mr. Kaseem J. Pankey, who was admitted to and escaped from a mental health facility at The
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`MidHudson Regional Hospital of Westchester Medical Center (the “Hospital”), later arrested by
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`police officers from the City of Poughkeepsie (the “City”) pursuant to an outstanding criminal
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`warrant previously issued by the Town of Poughkeepsie (the “Town”), thereafter transferred to
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`the custody of the Town and arraigned on the warrant, and held at the County of Dutchess (the
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`“County”) jail for two days until his death on November 26, 2014. Plaintiff Elaine Case,
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`grandmother to the deceased and administratrix of his estate, alleges that during these events Mr.
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`Pankey was subjected to negligence and deprivations of his Fourteenth Amendment Due Process
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`rights in violation of 42 U.S.C. § 1983.
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`On behalf of Mr. Pankey’s estate, Plaintiff brings this action against the County, the
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`County Sheriff Adrian H. Anderson (“Sheriff Anderson”), Deputy Sheriffs for the County John
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`Doe (1) and Richard Roe (1) (the “County Deputies”); Correctional Medical Care, Inc.
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`(“CMC”); the Town, the Town Chief of Police Ronald J. Spero (“Chief Spero”), Town Officers
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`John Doe (2) and Richard Roe (2) (the “Town Officers”); the City, Police Officers and/or
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`Dispatchers in the City Police Department John Doe (3) and Richard Roe (3) (the “City
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`Officers”); and Westchester Medical Center Health Care Corporation, doing business as
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`Westchester Medical Center through its subsidiary the Hospital, for the alleged violations of state
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`and federal law. All Defendants have moved to dismiss the complaint pursuant to Federal Rules
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`of Civil Procedure 12(b)(6) or 12(c). Plaintiff has cross-moved to amend the operative
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`complaint in order to specifically allege claims against the City Officers.1
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`For the following reasons, Plaintiff’s motion to amend is GRANTED and Defendants’
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`motions to dismiss are GRANTED in part and DENIED in part.
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`1 As part of Plaintiff’s opposition to the City’s motion to dismiss, she indicated she was withdrawing her
`claims against Chief Knapp of the City of Poughkeepsie Police Department and the City, but she has since clarified
`that she continues to assert negligence claims against the City despite withdrawing her federal claims. (See Letter
`from Counsel for Plaintiff dated Oct. 19, 2016 (“Plaintiff [] requests that the arguments contained in her
`Memorandum in support of her negligence claims against the City Police Officers also be read in support of her
`negligence claim against the City under the doctrine of respondeat superior.”), ECF No. 94.)
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`2
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`I.
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`Factual Allegations2
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`BACKGROUND
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`Over the span of less than a week, Kaseem J. Pankey was, as Plaintiff alleges, negligently
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`allowed to leave the Hospital and subjected to additional negligence and deliberate indifference
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`to his mental health problems as he was shuffled between various law enforcement agencies.
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`a. Admitted to the Hospital
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`On November 20, 2014, Mr. Pankey was admitted to Defendant Hospital’s facilities as a
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`psychiatric patient. (PAC ¶ 23.) At that time, he was accompanied by City of Poughkeepsie
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`police officers (id. ¶ 53) and his grandmother, Plaintiff Elaine Case—who informed the Hospital
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`of her relationship to Mr. Pankey and that he lived with her, and provided the Hospital with her
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`contact information (id. ¶ 24). This was not the first time Mr. Pankey had been admitted to the
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`Hospital as a psychiatric patient or that they were informed of his familial and living relationship
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`with Mrs. Case. (Id. ¶ 25.)
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`After he was admitted, the Hospital’s mental health treatment unit diagnosed him with,
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`among other disorders, suicidal behavior and psychosis, and provided him with medication. (Id.
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`¶¶ 26-27.) At this time, he expressed to Hospital staff members that he sought protection from
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`“devils and their demons.” (Id. ¶ 28.) On the same day as his admission to the Hospital, the
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`staff determined he required inpatient mental health stabilization. (Id. ¶ 30.)
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`2 The following facts are taken from Plaintiffs’ proposed third amended complaint (ECF No. 86, Ex. A)
`(“PAC”). See Polanco v. NCO Portfolio Mgmt., Inc., 23 F. Supp. 3d 363, 366 n.1 (S.D.N.Y. 2014) (Freeman, J.)
`(accepting facts alleged in proposed amended complaint as true for the purposes of deciding a motion to amend).
`Many of the allegations contained therein are made “upon information and belief,” which is still permissible post-
`Iqbal to the extent they are not conclusory or speculative. See New York v. United Parcel Serv., Inc., 131 F. Supp.
`3d 132, 137 (S.D.N.Y. 2015) (quoting Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010)) (“A plaintiff
`may plead facts alleged upon information and belief ‘where the facts are peculiarly within the possession and control
`of the defendant.’”).
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`3
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`Over the course of the next two days, Mr. Pankey was agitated and disruptive during
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`meals, refused the medication provided for him, and shouted at staff members. (Id. ¶¶ 31-32.)
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`He stated his belief that he was being held hostage and made frequent requests to leave the
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`facility. (Id. ¶ 32.) The staff determined he was “disorganized, delusional, and in need of
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`reorienting.” (Id.) During this time, Mr. Pankey caused a number of “Code Green” events to
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`occur—i.e., he tried to leave the facility despite the staff determining he required inpatient
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`services. (Id. ¶ 29.)
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`On November 22, 2014, after becoming increasingly unstable and agitated, stating to
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`staff members that he was “God” and “God does not have to take meds,” he pushed past a staff
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`member near a safety exit door and absconded from the Hospital. (Id. ¶¶ 34-35.) The Hospital
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`issued a Code Green and staff members tried to locate Mr. Pankey, but could not. (Id. ¶ 36.)
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`Plaintiff alleges the Hospital was negligent in allowing Mr. Pankey to leave the facility,
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`for not properly restraining him, for failing to have adequate security measures in place to
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`prevent him from leaving, for failing to supervise him, and for failing to properly medicate him.
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`(Id. ¶ 159.)
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`b. After the Escape
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`After Mr. Pankey escaped, a psychiatrist employed at the Hospital issued an order
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`pursuant to § 9.55 of the New York State Mental Hygiene Law requiring Mr. Pankey be
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`apprehended by law enforcement authorities. (Id. ¶ 38.)3 Hospital staff called various police
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`agencies within the County of Dutchess, including the City of Poughkeepsie police and the Town
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`of Poughkeepsie police. (Id. ¶¶ 39-40, 54, 57.) Plaintiff alleges the Hospital was negligent,
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`3 The order is referenced throughout Plaintiff’s complaint, and the City has provided a copy as part of its
`motion to dismiss. (See Decl. Thomas F. Kelly III in Supp. City Mot. (“Kelly Decl.”), Ex. F (Mental Hygiene order
`issued the evening of Nov. 22, 2014), ECF No. 90.) The Court takes judicial notice of the text of the order.
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`4
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`however, because it failed to send copies of the Mental Hygiene order to all local law
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`enforcement agencies. (Id. ¶ 159.)
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`When the Defendant Town police received the call from the Hospital, they informed the
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`staff member that he should contact the City police because Mr. Pankey’s home address was
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`within the City’s jurisdiction. (Id. ¶¶ 40-41, 55.) The Town is alleged to have made no efforts to
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`apprehend Mr. Pankey. (Id. ¶ 46.) The Hospital also contacted the Defendant City Officers,
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`who were familiar with Mr. Pankey and knew of his psychiatric problems, and informed them
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`that he needed to be apprehended pursuant to a Mental Hygiene order issued that day. (Id. ¶¶ 56-
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`57.) The Hospital explained that he was a “threat to his [own] safety” and “to the safety and
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`well-being of others[.]” (Id. ¶ 57.) Nevertheless, the City Officers made no efforts to apprehend
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`Mr. Pankey, to return him to the Hospital, or to contact Mrs. Case. (Id. ¶ 58.)
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`c. Apprehended by the City and Turned Over to the Town
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`On November 25, 2014, the City Officers apprehended Mr. Pankey (id. ¶ 59), but despite
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`their knowledge of his psychiatric history and of the Mental Hygiene order, they did not attempt
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`to enforce the order or to contact Mrs. Case (id. ¶¶ 60-61). Instead, the City advised the Town
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`that Mr. Pankey had been apprehended and held for arraignment. (Id. ¶¶ 42, 59.) The City
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`turned Mr. Pankey over to the Town because of an outstanding criminal warrant,4 and allegedly
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`made no efforts to inform the Town of the Mental Hygiene order. (Id. ¶¶ 43, 47, 62.) Plaintiff
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`4 The warrant is referenced in Plaintiff’s complaint (PAC ¶¶ 43, 48), and the Town has provided a copy as
`part of its motion to dismiss. (See Decl. Steven C. Stern in Supp. Town Mot. (“Stern Decl.”), Ex. A (arrest warrant
`issued by Justice Paul O. Sullivan of the Town of Poughkeepsie Justice Court on November 19, 2014 for the crime
`of grand larceny), ECF No. 110.) The Court takes judicial notice of the text of the warrant, though, as with the text
`of the Mental Hygiene order (see supra note 3), it does not impact the viability of Plaintiff’s claims. Additionally,
`the Court notes that the City Officers were alerted to Mr. Pankey’s activities on November 25 when he asked a store
`owner for money and “grabbed a free cookie off of the counter” as he exited the store. (See Kelly Decl., Ex. E.)
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`5
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`alleges the Defendant City Officers were negligent or deliberately indifferent to Mr. Pankey’s
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`well-being as a result of these failings. (Id. ¶ 179.)
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`The Defendant Town similarly, despite its own independent knowledge, did not inform
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`the City of the Mental Hygiene order that required Mr. Pankey be returned to the Hospital. (Id.
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`¶ 44.) Nor did the Town contact Mrs. Case. (Id. ¶ 46.) Plaintiff alleges these failings amounted
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`to negligence on the part of the Town (id. ¶ 164) and that the Town Officers were either
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`negligent or deliberately indifferent to Mr. Pankey’s due process rights when they failed to return
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`him to the Hospital (id. ¶¶ 169, 172-74).
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`d. Arraigned by the Town and Turned Over to the County
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`The Defendant Town Officers brought Mr. Pankey to the Town Justice Court to be
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`arraigned on the outstanding criminal warrant. (Id. ¶ 48.) During his arraignment and
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`subsequent transfer to the Defendant County, the officers did not inform those involved that a
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`Mental Hygiene order had been issued with regard to Mr. Pankey. (Id. ¶¶ 49-50, 63.) Plaintiff
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`alleges the Town Officers were either negligent or deliberately indifferent to Mr. Pankey’s due
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`process rights when they failed to impart this material information to the court and the Sheriff.
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`(Id. ¶¶ 170-74.)
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`e. Detained by the Sheriff at the County Jail
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`At the time that Mr. Pankey was in the custody of the County, Defendant CMC was
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`under contract with the Sheriff’s department to provide medical and mental health services to all
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`inmates held at the jail. (Id. ¶ 101.) Thus, once Mr. Pankey was in the Defendant Sheriff’s
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`custody, he was under the care of either the Sheriff’s office or CMC.5 Mr. Pankey had been in
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`5 Therefore, the description of the subsequent events, while only referencing the Sheriff’s office, also
`includes alternative pleading regarding CMC. (See generally ¶¶ 101-36.)
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`6
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`the custody of the County Sheriff before, and on at least three prior occasions the Sheriff had
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`been made aware of Mr. Pankey’s mental illness. (Id. ¶¶ 64-66.) But once he was taken into
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`custody by the Sheriff and placed in the County Jail on this occasion, Deputy Sheriff Shane
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`Roth—who was neither a psychiatrist nor a mental health professional—conducted a suicide
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`prevention screening with Mr. Pankey. (Id. ¶¶ 63, 67-69, 103-104.) Deputy Roth noted Mr.
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`Pankey was “bipolar” and “acting strange.” (Id. ¶¶ 69, 105.) The Sheriff’s office noted that he
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`needed a psychiatric referral. (Id. ¶¶ 74, 109-10.)
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`The next day, November 26, 2014, members of the Sheriff’s office noted his past
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`psychiatric history included a bipolar disorder diagnosis and that he had been hospitalized for
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`psychiatric disorders. (Id. ¶¶ 76, 77 (the office was aware he was a “known entity in the mental
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`health system with a diagnosis of bipolar”), ¶ 78 (aware of his history of “psychiatric illness and
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`substance use”); see also id. ¶¶ 112-13, 115 (same for CMC).) The Sheriff’s office found Mr.
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`Pankey to be exhibiting poor insight, judgment, and impulse control, and determined he had
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`bipolar disorder as well as an anti-social personality disorder. (Id. ¶¶ 78, 81-82, 111, 114, 117-
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`18.) Furthermore, during an interview with a member of the Sheriff’s office, he stated that he
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`had “escaped” from the Hospital. (Id. ¶¶ 79, 116.) At that time, the department recommended
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`that Mr. Pankey be transferred to mental health housing and evaluated by a psychiatrist. (Id.
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`¶¶ 83-84, 119-20.) Unfortunately, neither of those things occurred. (Id. ¶¶ 85-87, 121-23.)
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`Instead, after completing their initial assessment and interview, members of the Sheriff’s
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`office escorted him back to his cell in the County jail. (Id. ¶¶ 88-89.) During his return to his
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`cell, Mr. Pankey complained about being touched by a Deputy Sheriff and behaved aggressively.
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`(Id. ¶ 91.) Once he was in his cell, lying face down on his bunk, his restraints were removed and
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`a nurse was called to medically evaluate him. (Id. ¶¶ 92-93.) But, because Mr. Pankey stood up
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`during the evaluation, the nurse, Kimberly Stickle, was directed to leave and could not complete
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`the examination. (Id. ¶ 94.) While in his cell and in the presence of members of the Sheriff’s
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`office, he stated that “he wanted to go home.” (Id. ¶ 90.)
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`After the members of the Sheriff’s office and Nurse Stickle departed, Mr. Pankey was left
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`alone and unattended in his cell, with access to materials with which he could harm himself. (Id.
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`¶¶ 95, 97 (the precise materials are not described in the complaint).) Mr. Pankey proceeded to
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`commit suicide. (Id. ¶¶ 100, 136.)
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`As a result, Plaintiff alleges the County Defendants and CMC either acted negligently or
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`pursuant to a policy of deliberate indifference to Mr. Pankey’s well-being and his Due Process
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`rights by, inter alia, failing to implement sufficient procedural safeguards to protect inmates
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`suffering from mental illness. (Id. ¶¶ 184, 195, 204.) Plaintiff further alleges the County
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`Deputies were deliberately indifferent as evidenced by their failing to stand guard by his cell,
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`failing to obtain his medication, and failing to remove dangerous items from his cell. (Id. ¶ 199.)
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`II.
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`Procedural History
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`Between October 20, 2015, and December 30, 2015, within 90 days of Mrs. Case being
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`appointed as Administratrix of Mr. Pankey’s estate (id. ¶ 138), Plaintiff served Notices of Claim
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`upon the Defendant Sheriff (id. ¶ 137), the Defendant Hospital (id. ¶ 142), the Defendant City
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`and its Police Department (id. ¶ 147), and upon the Defendant Town and its Police Department
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`(id. ¶ 152). On February 3, 2016, a Section 50-h hearing was held pursuant to New York State
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`General Municipal Law, where the attendees included the majority of the Defendants in this
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`action. (See id. ¶ 140 (Sheriff), ¶ 145 (Hospital), ¶ 150 (City), ¶ 155 (Town).) Plaintiff
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`commenced this lawsuit on February 9, 2016. (See Compl., ECF No. 1.)
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`Each set of Defendants has moved to dismiss the operative complaint pursuant to Rule
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`12(b)(6) or 12(c). (See ECF Nos. 78 (Hospital), 88 (City), 97 (County), 109 (Town), & 114
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`(CMC).)6 Plaintiff has cross-moved to amend the complaint to focus her federal claims on the
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`City Officers as opposed to the City of Poughkeepsie, though she seeks to continue her
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`negligence claims against the City. (See ECF No. 85 & No. 86, Ex. A (proposed Third Am.
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`Compl.), No. 94 (letter clarifying withdrawal of claims), No. 49 at ¶¶ 56-64, 179-86 (currently
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`operative complaint asserting claims against City).)
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`LEGAL STANDARDS ON A MOTION TO DISMISS AND
`CROSS-MOTION TO AMEND THE PLEADINGS
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`Under Rule 12(b)(6) or 12(c) motions to dismiss, the inquiry is whether the complaint
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`“contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
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`on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
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`550 U.S. 544, 570 (2007)); accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010)
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`(applying same standard to Rule 12(c) motions). “While legal conclusions can provide the
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`framework of a complaint, they must be supported by factual allegations.” Id. at 679. To
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`survive a motion to dismiss, a complaint must supply “factual allegations sufficient ‘to raise a
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`right to relief above the speculative level.’” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d
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`6 Briefing of all of the motions was complete as of January 25, 2017. (See Hospital Mem. in Supp. Mot.
`(“Hosp. Mem.”), ECF No. 80; Decl. William H. Bave, Jr. in Supp. Mot. (“Bave Decl.”), ECF No. 79; Pl. Mem. in
`Opp’n Hosp. Mot. (“Pl. Opp’n Hosp.”), ECF No. 83; Hosp. Mem. in Reply to Pl. Opp’n (“Hosp. Reply”), ECF
`No. 82; City Mem. in Supp. Mot. (“City Mem.”), ECF No. 89; Kelly Decl., ECF No. 90; Pl. Mem. in Opp’n City
`Mot. (“Pl. Opp’n City”), ECF No. 84; City Mem. in Reply to Pl. Opp’n (“City Reply”), ECF No. 92; Town Mem. in
`Supp. Mot. (“Town Mem.”), ECF No. 111; Stern Decl., ECF No. 110; Pl. Mem. in Opp’n Town Mot. (“Pl. Opp’n
`Town”), ECF No. 112; Town Mem. in Reply to Pl. Opp’n (“Town Reply”), ECF No. 113; County Mem. in Supp.
`Mot. (“County Mem.”), ECF No. 99; Aff. David L. Posner, Esq. in Supp. County Mot. (“Posner Aff.”), ECF No. 98;
`Pl. Mem. in Opp’n County Mot. (“Pl. Opp’n County”), ECF No. 102; County Mem. in Reply to Pl. Opp’n (“County
`Reply”), ECF No. 103; CMC Mem. in Supp. Mot. (“CMC Mem.”), ECF No. 115; Decl. Ellen A. Fischer in Supp.
`CMC Mot. (“Fischer Decl.”), ECF No. 116; Pl. Mem. in Opp’n CMC Mot. (“Pl. Opp’n CMC”), ECF No. 118; CMC
`Mem. in Reply to Pl. Opp’n (“CMC Reply”), ECF No. 119; Pl. Mem. in Supp. Mot. to Amend. (“Pl. Amend.
`Mem.”), ECF No. 87; Decl. Robert N. Isseks in Supp. Mot. to Amend (“Isseks Decl.”), ECF No. 86.)
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`87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555). The Court must take all material
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`factual allegations as true and draw reasonable inferences in the non-moving party’s favor, but
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`the Court is “‘not bound to accept as true a legal conclusion couched as a factual allegation,’” or
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`to credit “mere conclusory statements” or “[t]hreadbare recitals of the elements of a cause of
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`action.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
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`Federal Rule of Civil Procedure 15 governs amendments to pleadings. After the first
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`permissive amendment, further amendments are conditioned on either “the opposing party’s
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`written consent or the court’s leave”—the latter of which should be “freely give[n] . . .when
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`justice so requires.” Fed. R. Civ. P. 15(a)(2). Although the standard is lenient, “[r]easons for a
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`proper denial of leave to amend include undue delay, bad faith, futility of amendment, and
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`perhaps most important, the resulting prejudice to the opposing party.” State Teachers Ret. Bd.
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`v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981) (citing Foman v. Davis, 371 U.S. 178, 182
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`(1962) (“In the absence of any apparent or declared reason—such as undue delay, bad faith or
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`dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
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`previously allowed, undue prejudice to the opposing party by virtue of . . . the amendment, [or]
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`futility of amendment—the leave sought should, as the rules require, be ‘freely given.’”)).
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`Federal Rule of Civil Procedure 21 provides that, “[o]n motion or on its own, the court
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`may at any time, on just terms, add or drop a party.” Fed. R. Civ. P. 21. Federal Rule of Civil
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`Procedure 20(a)(2) permits the joinder of persons as defendants in an action if “(A) any right to
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`relief is asserted against them jointly, severally, or in the alternative with respect to or arising out
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`of the same transaction or occurrence or series of transactions or occurrences; and (B) any
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`question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P.
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`20(a)(2). “According to the Supreme Court, ‘joinder of claims, parties and remedies is strongly
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`encouraged,’ and ‘the impulse is toward the broadest possible scope of action consistent with
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`fairness to the parties.’” Ferrara v. Smithtown Trucking Co., 29 F. Supp. 3d 274, 279-80
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`(E.D.N.Y. 2014) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 724 (1966)). “Thus,
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`‘[l]ike Rule 15, the requirements of Rule 20(a) should be interpreted liberally in order to enable
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`the court to promote judicial economy by permitting all reasonably related claims for relief by or
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`against different parties to be tried in a single proceeding.’” Id. (quoting Liegey v. Ellen Figg,
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`Inc., No. 02 Civ. 1492 (JSM) (JCF), 2003 WL 21361724, at *3 (S.D.N.Y. June 11, 2003)).
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`If during the proceedings the Court enters a Rule 16 scheduling order that further restricts
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`amendments, then “the lenient standard under Rule 15(a) . . . must be balanced against the
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`[stricter] requirement under Rule 16(b)[.]” Holmes v. Grubman, 568 F.3d 329, 334-35 (2d Cir.
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`2009) (internal citations omitted). Rule 16(b)(4) provides that “[a] schedule may be modified
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`only for good cause and with the judge’s consent,” where “‘good cause’ depends on the diligence
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`of the moving party.” Fed. R. Civ. P. 16(b)(4); Parker v. Columbia Pictures Indus., 204 F.3d
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`326, 340 (2d Cir. 2000).
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`Irrespective of whether undue delay, prejudice, bad faith, or, if applicable, lack of good
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`cause can be established, leave to amend may independently be denied “on grounds of futility if
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`the proposed amendment fails to state a legally cognizable claim or fails to raise triable issues of
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`fact.” AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., 626 F.3d 699, 726 (2d Cir.
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`2010) (quoting Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110-11 (2d Cir. 2001)); accord
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`Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman, 371 U.S. at
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`182). In other words, “[a]n amendment to a pleading is futile if the proposed claim could not
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`withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6),” or if the proposed
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`amendments would be insufficient to support Article III standing—a threshold inquiry for courts.
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`Lucente v. Int’l Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002); Treiber v. Aspen Dental
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`Mgmt., Inc., 94 F. Supp. 3d 352, 367 (N.D.N.Y. 2015), aff’d, 635 F. App’x 1 (2d Cir. 2016)
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`(summ. order); Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff’d,
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`561 U.S. 247 (2010). Thus, a court should deny a motion to amend if it does not contain enough
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`factual allegations, accepted as true, to state a claim for relief that is “plausible on its face” or to
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`demonstrate standing to bring the claim. Riverhead Park Corp. v. Cardinale, 881 F. Supp. 2d
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`376, 379 (E.D.N.Y. 2012) (quoting Twombly, 550 U.S. at 570) (denying motion to add claims as
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`futile); Ashmore v. Prus, 510 F. App’x 47, 49 (2d Cir. 2013) (summ. order) (“granting leave to
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`amend would be futile as the barriers to relief for [the alleged] claims cannot be surmounted by
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`reframing the complaint” where inter alia plaintiff lacked standing to seek injunctive relief).
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`The central inquiry for the Court when considering a motion to dismiss in tandem with a
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`motion to amend is, therefore, whether the proposed amended complaint can survive the motion
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`to dismiss. In determining whether a complaint states a plausible claim for relief, a district court
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`must consider the context and “draw on its judicial experience and common sense.” Iqbal, 556
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`U.S. at 679. It is important to note that “pleading is not an interactive game in which plaintiffs
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`file a complaint, and then bat it back and forth with the Court over a rhetorical net until a viable
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`complaint emerges.” In re Merrill Lynch Ltd. P’ships Litig, 7 F. Supp. 2d 256, 276 (S.D.N.Y.
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`1997). The court’s “duty to liberally construe a plaintiff’s complaint [is not] the equivalent of a
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`duty to re-write it.” Geldzahler v. New York Medical College, 663 F. Supp. 2d 379, 387
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`(S.D.N.Y. 2009) (internal citations and quotation marks omitted). A claim is facially plausible
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`when the factual content pleaded allows a court “to draw a reasonable inference that the
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`defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
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`Case 7:16-cv-00983-NSR-JCM Document 130 Filed 08/25/17 Page 13 of 61
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`DISCUSSION
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`Plaintiff’s proposed Third Amended Complaint alleges the Town Officers were negligent
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`or deliberately indifferent to Mr. Pankey’s Due Process rights (Count III) and the Town was thus
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`also negligent (Count II), the City Officers were negligent or deliberately indifferent (Count IV)
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`and the City was thus similarly negligent, the County and Sheriff Anderson were negligent or
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`deliberately indifferent to Mr. Pankey’s Due Process rights (Count V), the County Deputies were
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`deliberately indifferent to Mr. Pankey’s Due Process rights (Count VI), CMC was negligent or
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`had a policy of deliberate indifference towards the Due Process rights of pre-trial detainees, such
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`as Mr. Pankey (Count VII), and the Hospital was negligent (Count I). During the briefing of
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`Defendants’ motions to dismiss, and after proposing her latest complaint, Plaintiff has withdrawn
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`all claims against Chief Ronald J. Knapp of the City Police Department (Pl. Opp’n City at 1) and
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`Chief Spero of the Town Police Department (Pl. Opp’n Town at 1). Furthermore, Plaintiff has
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`withdrawn her § 1983 claims against the City, the Town, and CMC. (See Pl. Opp’n City at 1; Pl.
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`Opp’n Town at 1; Pl. Opp’n CMC at 1.) Plaintiff has indicated, however, that she wishes to
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`continue her negligence claims against the City based on her allegations—made as part of the
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`proposed amended complaint—against the City Officers. (See supra note 1.)
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`The Court will address the remaining claims alleged against the various sets of
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`Defendants starting with the federal causes of action. If Plaintiff’s federal claims are plausibly
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`alleged, exercising supplemental jurisdiction over her state law claims as they relate to the
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`Defendants will be appropriate at this juncture.7
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`7 The Court’s supplemental jurisdiction, 28 U.S.C. § 1367(a), is available for these common law claims.
`See Kirschner v. Klemons, 225 F.3d 227, 239 (2d Cir. 2000) (“pendent party jurisdiction [is] possible where the
`claim in question arises out of the same set of facts that give rise to an anchoring federal question claim against
`another party”); see, e.g., Jones v. Nickens, 961 F. Supp. 2d 475, 495 (E.D.N.Y. 2013) (court exercised supplemental
`jurisdiction over negligence claims asserted against hospitals, despite dismissing § 1983 claims against those
`entities, where federal claims remained against county and claims derived from a common nucleus of fact).
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`Case 7:16-cv-00983-NSR-JCM Document 130 Filed 08/25/17 Page 14 of 61
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`I.
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`Federal Claims (Section 1983)
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`The gravamen of Plaintiff’s federal claims concerns the conditions of Mr. Pankey’s
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`confinement, or more specifically the law enforcement agencies’ responses to his mental health
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`needs, after he escaped from the Hospital and was later detained on the unrelated criminal
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`warrant. “A pretrial detainee’s claims of unconstitutional conditions of confinement are
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`governed by the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and
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`Unusual Punishments Clause of the Eight Amendment . . . because, pretrial detainees have not
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`been convicted of a crime and thus may not be punished in any manner—neither cruelly and
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`unusually nor otherwise.” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (internal
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`quotations, modifications, and citations omitted); see also Bell v. Wolfish, 441 U.S. 520, 579
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`(1979) (Stevens, J., dissenting) (pretrial detainees “are innocent[s] . . . who have been convicted
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`of no crimes[;] [t]heir claim is not that they have been subjected to cruel and unusual punishment
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`in violation of the Eighth Amendment, but that to subject them to any form of punishment at all
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`is an unconstitutional deprivation of their liberty”). It thus logically follows that “[a] detainee’s
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`[Due Process] rights are ‘at least as great as the Eighth Amendment protections available to a
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`convicted prisoner.’” Darnell, 849 F.3d at 29 (quoting City of Revere v. Massachusetts Gen.
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`Hosp., 463 U.S. 239, 244 (1983)) (emphasis added).
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`The duty of a state actor to protect those in state custody from harm stems from the
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`special relationship created between the State and such an individual once the State choses to
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`exercise plenary control over a detainee or inmate. “[I]t is the State’s affirmative act of
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`restraining [an] individual’s freedom to act on his own behalf—through incarceration,
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`institutionalization, or other similar restraint of personal liberty—which is the ‘deprivation of
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`liberty’ triggering the protections of the Due Process Clause[.]” DeShaney v. Winnebago Cty.
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`
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`Case 7:16-cv-00983-NSR-JCM Document 130 Filed 08/25/17 Page 15 of 61
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`Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989). “[W]hen the State takes a person into its custody
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`and holds him there against his will, the Constitution imposes upon it a corresponding duty to
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`assume some responsibility for his safety and general well-being.” Id. at 199-200.
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`“For example, . . . ‘[neither] prisoners [nor detainees] may [] be deprived of their basic
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`human needs—e.g., food, clothing, shelter, medical care, and reasonable safety—and they may
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`not be exposed to conditions that pose an unreasonable risk of serious damage to [their] future
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`health.’” Darnell, 849 F.3d at 30 (quoting Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012));
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`see also Estelle v. Gamble, 429 U.S. 97, 105 (1976) (“deliberate indifference to a pri