16-2447-cv
Schnauder v. Gibens


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 10th day of February, two thousand seventeen.

PRESENT: BARRINGTON D. PARKER,
                 REENA RAGGI,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges.
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PETER M. SCHNAUDER, AKA “PETER SCHBAUDER,”

                                   PLAINTIFF-APPELLANT,

                        V.                                               NO. 16-2447-CV

FRANKLIN GIBENS, INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY THE DEPARTMENT OF CORRECTION FOR THE CITY OF
NEW YORK, DORIS B. SCHRIRO, INDIVIDUALLY AND IN HER
OFFICIAL CAPACITY AS THE COMMISSIONER FOR THE NEW
YORK CITY DEPARTMENT OF CORRECTION, THOMAS HALL,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DEPUTY
WARDEN IN CHARGE OF OTIS BANTUM CORRECTIONAL CENTER,
RIKERS ISLAND CORRECTIONAL FACILITY, ERIK BERLINER,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS ASSOCIATE
COMMISSIONER OF HEALTH AFFAIRS AND FORENSIC
SERVICES OF THE NEW YORK CITY DEPARTMENT OF CORRECTION,
NEW YORK CITY DEPARTMENT OF CORRECTION,


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JANE DOES 1-100, JOHN DOES 1-100,

                                         DEFENDANTS - APPELLEES.
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APPEARING FOR APPELLANT:                         ROBERT J. ADINOLFI, Esq., New York, New
                                                 York.

APPEARING FOR APPELLEES:                         QIAN JULIE WANG, Assistant Corporation
                                                 Counsel (Scott Shorr, Assistant Corporation
                                                 Counsel, on the brief), for Zachary W. Carter,
                                                 Corporation Counsel for the City of New York,
                                                 New York, New York.

        Appeal from a judgment of the United States District Court for the Eastern District

of New York (Sterling Johnson, Jr., Judge).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the July 13, 2016 judgment of the district court is AFFIRMED.

        Plaintiff Peter M. Schnauder appeals from the dismissal of his claims under the

Eighth Amendment, see 42 U.S.C. § 1983, the Americans with Disabilities Act (“ADA”),

see id. § 12132, and Section 504 of the Rehabilitation Act, see 29 U.S.C. § 794, based on

defendants’ alleged failure to provide timely treatment of his broken nose while he was

imprisoned.1 We review de novo the dismissal of a complaint pursuant to Fed. R. Civ.

P. 12(b)(6), accepting all factual allegations in the complaint as true and drawing all

reasonable inferences in the plaintiff’s favor. See Barrows v. Burwell, 777 F.3d 106,

111 (2d Cir. 2015). The complaint must plead “enough facts to state a claim to relief

that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and
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  Although afforded the opportunity to amend his § 1983 claims against individual
defendants, Schnauder voluntarily dismissed his individual claims to pursue an
immediate appeal of claims against the institutional defendants.

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we will not accept as true allegations that amount only to “legal conclusions,” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). In applying these standards here, we assume the

parties’ familiarity with the facts and record of prior proceedings, which we reference

only as necessary to explain our decision to affirm.

1.     Section 1983 Claim

       To state a § 1983 claim for official or municipal violation of constitutional rights,

a plaintiff must adequately plead an official policy or custom that resulted in the violation

alleged. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978); accord Littlejohn

v. City of New York, 795 F.3d 297, 314–15 (2d Cir. 2015). Schnauder argues that his

allegations were sufficient to show a “de facto policy . . . to downplay and ignore the

medical needs of inmates to limit their ability to be released.” Appellant’s Br. 37. The

argument fails because, apart from a detailed recounting of his own experiences,

Schnauder’s complaint contains only “general and conclusory allegation[s] that there was

. . . a policy” to deny prisoners adequate medical care. Littlejohn v. City of New York,

795 F.3d at 314–15. Such allegations are insufficient to sustain or “raise a reasonable

expectation that discovery will reveal evidence” in support of his claim. Bell Atl. Corp.

v. Twombly, 550 U.S. at 556.

       Schnauder invokes Turpin v. Mailet, 619 F.2d 196, 202 (2d Cir. 1980), for the

principle that a single act may suffice to warrant an inference of municipal “deliberate

indifference” or “gross negligence.” His reliance is misplaced because however serious

the delay in treating a broken nose, that omission is not analogous to the “single,

unusually brutal or egregious beating” provided in Turpin as an example of conduct

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admitting an inference of a policy of deliberate indifference or gross negligence. Id.;

see also Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 129 (2d Cir. 2004) (citing

Turpin for proposition that “extreme” use of force “might be sufficient to allow a

factfinder to infer deliberate indifference” by policymaker).

       Because Schnauder’s proposed amended complaint offers only equally conclusory

allegations, any attempt to amend would have been futile.              See, e.g., Cuoco v.

Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Accordingly, we affirm both the district

court’s dismissal of Schnauder’s Monell claim and its denial of leave to amend.

2.     ADA and Rehabilitation Act Claims

       To state a prima facie claim under either the ADA or Rehabilitation Act, a

plaintiff must adequately plead that (1) he is a qualified individual with a disability;

(2) the defendant is an “entity subject to the [A]cts;” and (3) “he was denied the

opportunity to participate in or benefit from . . . services, programs, or activities” or

“otherwise discriminated against . . . by reason of his disability.”   Wright v. N.Y. State

Dep’t of Corr., 831 F.3d 64, 72 (2d Cir. 2016). In so doing, a plaintiff may rely upon a

“reasonable accommodation” theory. See Henrietta D. v. Bloomberg, 331 F.3d 261, 273

(2d Cir. 2003).

       Schnauder challenges the district court’s determinations that he insufficiently

alleged “disability” and causation.     We need not reach Schnauder’s first argument

because, assuming arguendo that his allegations of breathing difficulty sufficed to show a

“disability,” Schnauder has not adequately pleaded that he was denied the opportunity for

medical treatment by reason of his broken nose. See Wright v. N.Y. State Dep’t of Corr.,

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831 F.3d at 72. Schnauder’s argument that denial of timely and meaningful medical

treatment for his nose constituted a failure to provide a “reasonable accommodation” fails

because the broken nose was not the reason he was unable to access medical services;

rather, it was the reason he sought such services. In short, because he has not pleaded

facts showing that denial of treatment was attributable to bias based on disability, see

McGugan v. Aldana-Bernier, 752 F.3d 224, 231–32 (2d Cir. 2014), his pleadings do not

admit an inference of proscribed discrimination, see generally Doe v. Pfrommer, 148

F.3d 73, 82–84 (2d Cir. 1998) (dismissing ADA claim where inmate’s pleadings of denial

of vocational rehabilitation in fact challenged adequacy of services received).

       Accordingly, we affirm the dismissal of Schnauder’s ADA and Rehabilitation Act

claims.

3.     Conclusion

       We have considered Schnauder’s remaining arguments and conclude that they are

without merit.    Accordingly, the July 13, 2016 judgment of the district court is

AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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