Perez v. The City of New York et al
MEMORANDUM AND ORDER dated 2/17/17 granting plaintiff's 4 Motion for Leave to Proceed in forma pauperis. The complaint is dismissed with leave to amend to assert a claim for deliberate indifference to plaintiffs serious medical needs. Grante d 20 days to amend his complaint. The court certifies pursuant to 28:1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). ( Ordered by Judge Brian M. Cogan on 2/17/2017 ) c/m w/unpublished decision (Guzzi, Roseann)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
: DECISION AND ORDER
- against : 17 Civ. 366 (BMC)(LB)
THE CITY OF NEW YORK; DEPARTMENT :
OF CORRECTIONS; COMMISSIONER OF
N.Y.C. CORRECTIONS; WARDEN OF
N.Y.C. CORRECTIONS; DEPUTY
WARDEN; OFFICER TAVARES; and JOHN :
DOES # 1 – 4, Captain’s Officers Present in
Dorm # 2, Bed # 6,
COGAN, District Judge.
Plaintiff pro se Julio Perez, who is currently incarcerated at Rikers Island, brings this
action pursuant to 42 U.S.C. § 1983 against the City of New York, New York City Department
of Correction (“DOC”), and multiple individual defendants alleging that his constitutional rights
were violated when a chemical agent got into his eyes during a prison disturbance and he was
denied immediate medical treatment. The Court grants plaintiff’s request to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915. For the following reasons, the complaint is dismissed
with leave to amend to assert a claim for deliberate indifference to plaintiff’s serious medical
This is the second complaint that plaintiff has filed related to the alleged incident that
occurred in June 2016 at the Robert N. Davoren Complex at Rikers Island. The previous
complaint was dismissed for failure to state a claim against the named defendants and plaintiff
was given leave to file an amended complaint. See Perez v. City of New York Dep’t of Corr.,
No. 16 Civ. 5307, 2016 WL 5477598 (E.D.N.Y. Sept. 29, 2016). Because plaintiff failed to file
a timely amended complaint, the action was dismissed and plaintiff’s subsequent motion for
reconsideration of dismissal was denied. The instant complaint states similar factual allegations
to the previous complaint, but, unlike the previous complaint, it names the individual corrections
officers that plaintiff alleges are responsible for the alleged deprivation of his constitutional
Plaintiff alleges that he was sitting on his bed when two other inmates began fighting.
When a corrections officer sprayed K-9 chemical spray at the fighting inmates, the chemical
traveled into plaintiff’s eyes due to a fan blowing in plaintiff’s direction. Plaintiff alleges that he
sought medical attention, but was diverted to the mental health area because of an alarm. When
the alarm desisted, plaintiff was returned to his unit without seeing the doctor. Plaintiff alleges
that he was not brought to see a doctor until two months after the incident. Plaintiff states that
the doctor provided him with eye drops and informed him that he needed glasses due to
deterioration of his eyes.
Under 28 U.S.C. § 1915A, a district court “shall review, before docketing, if feasible or,
in any event, as soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or employee of a governmental entity.” On
review, a district court shall dismiss a prisoner complaint sua sponte if the complaint is
“frivolous, malicious, or fails to state a claim upon which relief may be granted; or seeks
monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).
Pursuant to the in forma pauperis statute, a district court must also dismiss a case if the court
determines that the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from
such relief.” 28 U.S.C. § 1915(e)(2)(B).
As an initial matter, the complaint is dismissed as to DOC because New York City
agencies, such as DOC, are not suable entities. See N.Y.C. Admin. Code & Charter Ch. 16 §
396; Cuadrado v. New York City Dep’t of Corr., No. 08 Civ. 3026, 2009 WL 1033268, at *2
(S.D.N.Y. April 16, 2009) (dismissing the complaint against the New York City Department of
Correction because it is not a suable entity). Accordingly, plaintiff’s claims against the DOC are
dismissed for failure to state a claim upon which relief may be granted.
Here, plaintiff brings claims for deprivations of constitutional rights under 42 U.S.C.
§ 1983. To sustain a claim brought under § 1983, plaintiff must allege that the conduct
complained of (1) “[was] committed by a person acting under color of state law,” and (2)
deprived . . . [him] of rights, privileges or immunities secured by the Constitution or laws of the
United States.” Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). Moreover, he must allege the
direct or personal involvement of each of the named defendants in the alleged constitutional
deprivation. Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010). “Because vicarious liability is
inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the Constitution.” Ashcroft v. Iqbal,
556 U.S. 662, 676 (2009). Plaintiff names the Commissioner, the Warden, and the Deputy
Warden of the DOC as defendants, but he fails to allege that these supervisory officials
participated in the alleged harm or could otherwise be held liable for any deprivation of his
constitutional rights. Accordingly, the claims against the Commissioner, the Warden and the
Deputy Warden are dismissed.
The complaint is also dismissed as to the City of New York. A municipality can be liable
under §1983 only if the plaintiff can show that a municipal policy or custom caused the
deprivation of his or her constitutional rights. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
690-91 (1978). There are no such allegations here.
Plaintiff’s Eighth Amendment claim regarding allegations of the defendant correction
officers’ use of K-9 spray to break up a fight between two prisoners, which winded up in
plaintiff’s eyes due to a blowing fan, is dismissed for failure to state a claim. To state an Eighth
Amendment claim for use of excessive force, an inmate’s allegations must meet both a
subjective and an objective requirement. To meet the subjective requirement, the inmate must
show that the prison officials involved “had a wanton state of mind when they were engaging in
the alleged misconduct.” Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999). The key question
in determining wantonness is “‘whether force was applied in a good-faith effort to maintain or
restore discipline, or maliciously and sadistically to cause harm.’” Wright v. Goord, 554 F.3d
255 (2d Cir. 2009) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). “[W]ide ranging
deference” must be accorded to the actions of prison officials in responding to an inmate
confrontation. Whitley v. Albers, 475 U.S. 312, 321 (1986). The objective component requires
that the alleged conduct be “sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834 (1994).
“[N]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's
chambers, violates a prisoner’s constitutional rights . . . and an allegation indicating a de minimis
use of force will rarely suffice to state a constitutional claim.” Sims v. Artuz, 230 F.3d 14, 22
(2000) (internal quotation marks and citations omitted).
Plaintiff’s allegations do not meet either the objective or subjective component for an
excessive force claim. Here, the alleged use of force was de minimis and reasonable to restore
order during the course of the prison disturbance. Plaintiff also fails to allege any facts
supporting that the prison officials sprayed the K-9 to “maliciously” cause harm to the two
prisoners engaged in the alteration, let alone to plaintiff who was not directly sprayed with the K9 and who was only affected by the chemical due to a blowing fan. See Hernandez v. C.O.
Jones 17628, No. 06 CV 3738, 2006 WL 3335091 (E.D.N.Y. Oct. 10, 2006) (dismissing an
inmate’s excessive force claim for failure to meet the requirements of an Eighth Amendment
claim where the inmate was sprayed with pepper spray during a prison disturbance). At most,
plaintiff alleges that the corrections officers should have been more careful and anticipated that
the fan might blow the spray in his direction. That is, if anything, a negligence claim, not a
For similar reasons, plaintiff also fails to state an Eighth Amendment claim for the denial
of medical care. A claim for inadequate medical treatment may give rise to a constitutional
deprivation where a prisoner alleges “acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97 (1976). To
sufficiently allege a claim of deliberate indifference, plaintiff must state facts to support that: (1)
he suffered from a “serious medical condition,” that is a condition that may “produce death,
degeneration, or extreme pain,” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (citation and
internal quotation marks omitted), and (2) the individual defendants were deliberately indifferent
to his serious medical condition, that is they “knew of and disregarded an excessive risk to
[plaintiff’s] health or safety . . . ” Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009) (internal
quotation marks and citation omitted).
Although the condition of plaintiff’s eyes is likely “sufficiently serious” to satisfy the
objective component, plaintiff fails to allege facts suggesting that defendants acted with
deliberate indifference to his condition. The complaint states that plaintiff was initially
prevented from seeing a doctor only because an “alarm” was ringing. There is nothing wrong
with that unless plaintiff pleads facts showing that (a) defendants could have taken measures to
treat him despite the chaotic events that were occurring during the alarm; and (b) they recklessly
disregarded his condition when they could have taken steps to treat him.
After the alarm desisted, plaintiff alleges that he was brought back to his unit without
seeing a doctor, but he does not allege any facts indicating that defendants were aware of
plaintiff’s condition. The complaint also fails to explain why plaintiff did not see a doctor until
two months after the incident, or state any facts indicating that defendants were aware of his
condition and recklessly ignored it during this time.
Plaintiff’s request to proceed in forma pauperis is granted pursuant to 28 U.S.C. § 1915.
The complaint is dismissed for failure to allege a plausible claim to relief pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii). In light of plaintiff’s pro se status, however, he is granted twenty days to
amend his complaint if he has a deliberate indifference claim against the individual correctional
officers and/or other members of Rikers Island staff. Should plaintiff decide to file an amended
complaint, it must be submitted within twenty days of this Order, be captioned “Amended
Complaint,” and bear the same docket number as this Order. Plaintiff is advised that the
amended complaint will completely replace the original complaint, so plaintiff must include in it
any allegations from the prior complaint that he wishes to pursue against the individual
defendants. Further, if plaintiff fails to comply with this Order within the time allowed, the
action shall be dismissed and judgment shall enter.
The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order
would not be taken in good faith and therefore in forma pauperis status is denied for purpose of
an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
Digitally signed by
Brian M. Cogan
Dated: Brooklyn, New York
February 17, 2017
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