09-1745-cv
Mayo v. County of Albany

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE
32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER,
IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST
EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF
THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY
ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE
SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY
ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE
AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE
REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH
THE ORDER WAS ENTERED.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 17th day
of December, two thousand nine.

Present:
         JOSEPH M. McLAUGHLIN,
         ROBERT A. KATZMANN,
         GERARD E. LYNCH,
                     Circuit Judges.
________________________________________________

KELLY ANN MAYO, an incapacitated person, by and through her father, JOSEPH F. MAYO,
as the proposed special guardian of the person and property,

           Plaintiffs-Appellants,

                  v.                                            No. 09-1745-cv

COUNTY OF ALBANY and CORRECTIONAL MEDICAL SERVICES, INC.,

           Defendants-Appellees,

JAMES L. CAMPBELL, SHERIFF, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY,
SHANNON MARSHALL, CORRECTION OFFICER, IN HER INDIVIDUAL AND OFFICIAL
CAPACITY, JILL HARRINGTON, R.N., IN HER INDIVIDUAL AND OFFICIAL
CAPACITY, GLORIA COOPER, R.N., IN HER INDIVIDUAL AND OFFICIAL CAPACITY,
MARY BRUNO, R.N., IN HER INDIVIDUAL AND OFFICIAL CAPACITY, CATHY
PIENKOSKI, R.N., IN HER INDIVIDUAL AND OFFICIAL CAPACITY, TRISHA BECK,
L.P.N., IN HER INDIVIDUAL AND OFFICIAL CAPACITY, JANE DOE, AN
UNIDENTIFIED AGENT, SERVANT, AND/OR EMPLOYEE OF THE DEFENDANT,
CORRECTIONAL MEDICAL SERVICES, INC. AND MICHAEL SALZMAN, IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY,

         Defendants.
________________________________________________

For Appellants:                            JAMES E. MONROE , Dupée & Monroe, P.C., Goshen,
                                           N.Y.

For Appellee County of Albany:            SHAWN F. BROUSSEAU , Napierski, Vandenburgh &
                                          Napierski, L.L.P., Albany, N.Y.

For Appellee Correctional Medical
      Services, Inc.:                      DEBRA J. YOUNG , Thuillez, Ford, Gold, Butler &
                                           Young, L.L.P., Albany, N.Y.



        Appeal from the United States District Court for the Northern District of New York

(Sharpe, J.).

        ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

        Plaintiffs appeal from the district court’s grant of summary judgment to the defendants on

plaintiffs’ claims for deliberate indifference pursuant to 42 U.S.C. § 1983, breach of contract and

negligence under state law. We review the district court’s judgment de novo. See Jaramillo v.

Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008). We assume the parties’ familiarity with

the facts, procedural history, and specification of issues on appeal.



                                                  2
       As an initial matter, municipal liability against the County of Albany attaches only if

Mayo can demonstrate a policy, custom or practice which deprived her of a federal or

constitutional right. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978); see also

Ciraolo v. City of New York, 216 F.3d 236, 242 (2d Cir. 2000). We also note that the Eighth

Amendment is not directly applicable to Mayo because she was a pretrial detainee. See Johnson

v. Glick, 481 F.2d 1028, 1032 (2d Cir. 1973) (overruled on other grounds). Constitutional claims

by pretrial detainees must instead be analyzed under the Due Process Clause of the Fourteenth

Amendment, which, in practice, involves the same test as that used to analyze claims by

convicted inmates under the Eighth Amendment. See Weyant v. Okst, 101 F.3d 845, 856 (2d Cir.

1996). Until recently, the applicable standard was objective, requiring a lower threshold of proof

since it did not reach the defendant’s state of mind. However, as this Court has recently noted in

Caiozzo v. Koreman, 581 F.3d 63 (2d Cir. 2009), the Supreme Court’s decision in Farmer v.

Brennan, 511 U.S. 825 (1994), applied a subjective standard to Eighth Amendment deliberate

indifference claims, requiring evidence that the defendant “disregard[ed] a risk of harm of which

he [was] aware.” Caiozzo, 581 F.3d at 65 (quoting Farmer, 511 U.S. at 837). This Court, in

Caiozzo, resolved the ambiguity as to which test applies to Fourteenth Amendment deliberate

indifference claims by determining that the standard was indeed subjective, thereby overruling

Liscio v. Warren, 901 F.2d 274 (2d Cir. 1990), which had earlier applied the objective standard.

See Caiozzo, 581 F.3d at 71. A plaintiff bringing a deliberate indifference claim must therefore

demonstrate that the defendant deliberately disregarded knowledge of the harm he knew he could




                                                3
cause as a result of his actions. Id.1

        To substantiate a claim of deliberate indifference, the plaintiffs must establish two

elements: that Mayo had a “serious medical condition” and that it was met with “deliberate

indifference.” Id. at 72 (internal quotation marks omitted). Thus, under Farmer (as applied to

the case at bar), Mayo must show that defendants knew of and yet disregarded excessive risk to

her health and safety, and that defendants were both “aware of facts from which the inference

could be drawn that a substantial risk of serious harm exist[ed], and . . . also dr[e]w the

inference.” Farmer, 511 U.S. at 837; see also Caiozzo, 581 F.3d at 72. Indeed, the standard

requires a showing that defendants acted with “a state of mind that is the equivalent of criminal

recklessness.” Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (internal quotation marks

omitted).

        To the extent that withdrawal from heroin and alcohol addictions presents a serious

medical condition, it appears undisputed that Mayo satisfied the first prong of the test. Mayo’s

claim, however, founders on the second prong. We cannot conclude that the informed decisions

to keep Mayo under active supervision, as opposed to constant supervision – a cumulative

determination after no less than three evaluations2 – was “deliberately indifferent.” At each



        1
         Caiozzo also reaffirmed the Court’s position that “[c]laims for deliberate indifference to
a serious medical condition or other serious threat to the health or safety of a person in custody
should be analyzed under the same standard irrespective of whether they are brought under the
Eighth or Fourteenth Amendment.” Caiozzo, 581 F.3d at 72.
        2
         Mayo was first evaluated upon arrest on May 13, 2006 and administered a Suicide
Prevention Screening; she was again evaluated by a nurse, who identified heroin and alcohol
addictions which prompted CMS’s doctor to order treatments and medication to address eventual
withdrawal symptoms; on the day of her suicide attempt, May 15, 2006, Mayo was evaluated a
third time by the doctor after exhibiting withdrawal symptoms.

                                                  4
evaluation, the medical personnel making the assessment came to an informed conclusion that,

despite some contraindications, Mayo was stable enough not to pose a suicide risk.

         We decline plaintiffs’ invitation to adopt a per se rule requiring constant supervision for

inmate patients exhibiting symptoms of withdrawal from substance abuse in the absence of any

supportive authority. Neither can we credit plaintiffs’ contention that CMS failed to provide

adequately tailored care to Mayo’s specific needs because Mayo’s course of treatment reflected

adjustments in light of multiple evaluations and the “standing orders” in question were

handwritten instructions specifically responsive to Mayo’s case.

         Plaintiffs’ reliance on 9 N.Y.C.R.R. 7003.3(h) and the related Chairman’s Memorandum

No. 17-99 is misplaced because these provisions articulate an affirmative duty to determine

whether an inmate requires additional supervision and to so provide only if it is determined

necessary. The threshold determination of what level of supervision an inmate requires in light

of his or her suicide risk remains, however, within the medical judgment of the prison medical

staff.

         In light of the foregoing, we find that defendants were not deliberately indifferent to

Mayo’s medical condition, either by policy or practice, or by the care administered to Mayo, and

therefore we affirm the district court’s grant of summary judgment to defendants on this claim.

         In order to substantiate a claim of negligence, plaintiffs must establish: (1) the existence

of a duty owed by the defendant to the plaintiff; (2) a breach of this duty; and (3) injury resulting

from the breach of duty by the defendant. See, e.g., Akins v. Glens Falls City School Dist., 53

N.Y.2d 325, 333 (1981). The primary inquiry is whether the injury was a reasonably foreseeable

consequence of the defendant’s actions. See Gordon v. City of New York, 70 N.Y.2d 839, 841


                                                   5
(1987). Where prison staff “know[s] or should know that a prisoner has suicidal tendencies or

that a prisoner might physically harm himself, a duty arises to provide reasonable care to assure

that such harm does not occur.” Id.

       In light of the foregoing discussion, we cannot find that Mayo’s suicide attempt was a

reasonably foreseeable consequence of defendants’ actions, and we accordingly cannot find that

defendants were negligent. More specifically: (1) none of the evaluative tools employed

indicated that Mayo posed a suicide risk;3 (2) Mayo did not exhibit symptoms of withdrawal until

the day of her attempt, which, in any event, prompted a third evaluation by a doctor; (3) in

anticipation of withdrawal symptoms, Mayo was appropriately placed in a detox program; (4)

Mayo did not exhibit any suicidal ideation in contemporaneous conversations with her boyfriend

and father in the days leading to her attempt; and (5) there were no outward manifestations of

potential suicide up through the last 10 minutes before her suicide attempt. Plaintiffs’ only

evidence suggesting negligence, the expert affidavit of Dr. William B. Head, Jr., is premised on

the bare assumption, not founded in the evidence or supported by the expert’s own analysis, that

plaintiff was a suicide risk. This entirely conclusory assertion is insufficient to defeat summary

judgment. Accordingly, though plaintiffs argue that the failure to provide constant supervision in

light of Mayo’s substance addictions constitutes negligence, we again decline to adopt the per se

rule that plaintiffs advance and conclude that the district court did not err in granting summary

judgment as to this count.

       Finally, as to the breach of contract claim, under New York law, a plaintiff claiming

       3
         The guidelines and protocols followed at the detention facility were approved by the
National Commission on Correctional Health Care, which is understood to represent the
applicable standard of care for inmates.

                                                 6
rights as a third-party beneficiary must demonstrate: “(1) the existence of a valid and binding

contract between other parties, (2) that the contract was intended for his benefit and (3) that the

benefit to him is sufficiently immediate, rather than incidental, to indicate the assumption by the

contracting parties of a duty to compensate him if the benefit is lost.” State of California Pub.

Employees Ret. Sys. v. Shearman & Sterling, 95 N.Y.2d 427, 434-35 (2000) (internal quotation

marks omitted).

       It is not disputed that a contract existed between the County of Albany and CMS for the

latter to provide medical services to prisoners and pretrial detainees. Nor is it disputed that Mayo

was the intended beneficiary of the contract. The main thrust of plaintiffs’ argument is that

defendants failed to provide the minimum standard of care as required by 9 N.Y.C.R.R.

7003.3(h) and the Chairman’s Memorandum. Since the Court has already determined that

defendants were neither deliberately indifferent nor negligent in the standard of care provided to

Mayo, we accordingly cannot find that there was a breach of contract due to defendants’ alleged

failure to provide appropriate care for the reasons stated above.

       Plaintiffs seek to lower the evidentiary bar required to substantiate their claims by relying

on Noseworthy v. City of New York, 298 N.Y. 76 (1948). The Noseworthy doctrine’s “sphere of

operation is in the weight to be assigned to circumstantial evidence concerning disputed facts

because the more direct and proper source of this evidence no longer exists.” Kazanoff v. United

States, 945 F.2d 32, 35 n.4 (2d Cir. 1991) (internal quotation marks omitted). The Noseworthy

doctrine is inapplicable, however, because “this lesser degree of proof pertains to the weight

which the circumstantial evidence may be afforded by the jury, not to the standard of proof the

plaintiff must meet.” Holiday v. Huntington Hosp., 164 A.D.2d 424, 428 (N.Y. App. Div. 2d


                                                  7
Dept. 1990). Moreover, the primary rationale underlying the doctrine is not squarely presented

here since Mayo herself would not, in any event, have been qualified to testify as to the medical

adequacy of her treatment. At most, Mayo could have elucidated the exact events leading up to

her suicide attempt, which stands independent of the central inquiry into the adequacy of the

defendants’ medical care during her detainment.

       We have considered appellants’ remaining arguments and find them to be without merit.

       For the foregoing reasons, the Court AFFIRMS the district court’s grant of summary

judgment to the defendants.

                                                  FOR THE COURT:
                                                  CATHERINE O’HAGAN WOLFE, CLERK

                                                  By:_________________________________




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