Poole v. Nassau County et al
Filing
31
ORDER granting 20 Motion to Dismiss for Failure to State a Claim; denying 26 Motion to Dismiss for Failure to State a Claim. For the reasons set forth herein, County Defendants' motion to dismiss is denied. However, all claims against N assau County Correctional Center, Nassau County Sheriff's Department, and the Nassau County Department of Health are dismissed. Defendant New York State's motion to dismiss pursuant to Rule 12(b)(1) is granted, and the claims against it are dismissed. Ordered by Judge Joseph F. Bianco on 3/21/2016. (Dolecki, Lauren)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 15-CV-2762 (JFB)(AKT)
_____________________
DARIN POOLE,
Plaintiff,
VERSUS
NASSAU COUNTY ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
March 21, 2016
___________________
JOSEPH F. BIANCO, District Judge:
For the reasons discussed below, the
County Defendants’ motion is denied, and
New York State’s motion is granted.
On April 30, 2015, plaintiff Darin Poole
(“Poole” or “plaintiff”), proceeding pro se
and in forma pauperis, filed this action
against defendants Nassau County, Nassau
County Department of Health, Nassau
County Sheriff’s Department, Nassau County
Correctional Center (“NCCC,” s/h/a Nassau
County Jail), (collectively,
“County
Defendants”), and New York State (s/h/a
N.Y. State). Plaintiff alleges claims under
Section 1983 concerning his medical care
and the conditions of his confinement while
incarcerated at the NCCC.
I. BACKGROUND
A.
Facts
The following facts are taken from the
plaintiff’s complaint (Compl.) and are not
findings of fact by the Court. Instead, the
Court will assume the facts to be true and, for
purposes of the pending motions to dismiss,
will construe them in a light most favorable
to the plaintiff, the non-moving party.
Plaintiff alleges that, on April 9, 2015, he
was served elbow pasta with meat sauce,
along with the other inmates. (Compl. ¶ IV.)
He alleges that, after eating, he “became
nausheated (sic) and very sick” and felt like
his stomach “was going to explode” due to
his pain and cramps. (Id.) Plaintiff alleges
that he “never received a response from
medical, or let alone any medical treatment at
County Defendants now move to dismiss
the complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6), and defendant
New York State moves to dismiss the
complaint pursuant to Rule 12(b)(1) as well
as Rule 12(b)(6).
1
all” from April 10, 2015, to April 16, 2015.
(Id. at ¶ IV.A.)
stool sample, which contained ants and
roaches. (Id.) Plaintiff alleges that Dr.
Sanchez told him that he would get him
something for his stomach pain within a few
days, but that plaintiff still had not heard
anything back by April 22, 2015, nor was he
sent to the hospital or given any other
treatment. (Id.)
Plaintiff alleges that he told an officer that
he “was in serious pain,” believed that he had
food poisoning, and needed to go to
emergency medical. (Id. at Attach. 1.)
Plaintiff alleges that the officer told him that
“they weren’t calling medical unless
[plaintiff] was layed (sic) out cold on the
floor,” and directed plaintiff to fill out a sick
call form, which plaintiff did. (Id.) Plaintiff
then alleges that he told another officer who
was doing rounds that he wanted to go to the
hospital because he had food poisoning, but
that the officer told him that “they weren’t
going to call anyone unless [plaintiff] was
layed (sic) out not breathing at all and that
was the only way [he] would go to the
hospital.” (Id. at Attach. 2.) Plaintiff alleges
that he was unable to make himself throw up,
and remained in his cell for two days with
“constant stomach cramps and serious pain,”
unable to eat. (Id.)
Plaintiff also alleges that he told Dr.
Sanchez that he wanted the “built up fluid on
his left knee” drained because he could barely
walk, but that Dr. Sanchez never got back to
him after taking X-rays. (Id.) Plaintiff
alleges that as a result, his knee swelled to the
size of a softball. (Id.)
Plaintiff also includes an allegation that
NCCC is “cheating all inmates out of there
(sic) rec time” because officers tell inmates
that if they “don’t go outside when the call
outside rec then [they] must lock in.” (Id. at
Attach. 5.) Plaintiff alleges that “inmates are
forced to go in cold, wet weather” or risk
losing their rec time. (Id.)
Plaintiff alleges that he “used the
bathroom a total of 23 times,” and that the
first time, on April 12, 2015, there was
“blood in [his] stool with dead small ants and
roaches from food poisoning.” (Id. IV.A.;
see also id. at Attachs. 2-3.) Plaintiff alleges
that he asked an officer to come to his cell to
“verify [his] claim and report it to medical so
medical could get [him] to the emergency
room at the hospital but he refuse (sic) to
come up.” (Id. at Attach. 3.) Plaintiff alleges
that the officer told him to fill out another
sick call and put in a grievance, and by that
time, plaintiff had put in a total of three sick
calls and two grievances. (Id.)
Plaintiff commenced this action on April
30, 2015. On July 14, 2015, New York State
filed a motion to dismiss plaintiff’s
complaint. On September 4, 2015, the
County Defendants filed their motion to
dismiss. On September 21, 2015, plaintiff
filed a letter in opposition. On October 21,
2015, County Defendants filed a letter
requesting their motion be submitted as
unopposed.
Plaintiff alleges that, one or two days
later, he was called down for a sick call and
seen by Dr. Sanchez for the unrelated reason
of having his blood pressure checked. (Id. at
Attach. 4.) Plaintiff alleges that he explained
his illness to Dr. Sanchez, who asked for a
In reviewing a motion to dismiss pursuant
to Rule 12(b)(6), the Court must accept the
factual allegations set forth in the complaint
as true and draw all reasonable inferences in
favor of the plaintiff. See Cleveland v.
Caplaw Enters., 448 F.3d 518, 521 (2d Cir.
B. Procedural History
II. STANDARD OF REVIEW
2
“must accept as true all material factual
allegations in the complaint, but [it is] not to
draw inferences from the complaint favorable
to plaintiffs.” J.S. ex rel. N.S. v. Attica Cent.
Sch., 386 F.3d 107, 110 (2d Cir. 2004).
Moreover, the court “may consider affidavits
and other materials beyond the pleadings to
resolve the jurisdictional issue, but [it] may
not rely on conclusory or hearsay statements
contained in the affidavits.” Id. “The
plaintiff bears the burden of proving subject
matter jurisdiction by a preponderance of the
evidence.” Aurecchione v. Schoolman
Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.
2005).
2006); Nechis v. Oxford Health Plans, Inc.,
421 F.3d 96, 100 (2d Cir. 2005). “In order to
survive a motion to dismiss under Rule
12(b)(6), a complaint must allege a plausible
set of facts sufficient ‘to raise a right to relief
above the speculative level.’” Operating
Local 649 Annuity Trust Fund v. Smith
Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d
Cir. 2010) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). This
standard does not require “heightened fact
pleading of specifics, but only enough facts
to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570.
The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, 556 U.S. 662 (2009), setting forth a
two-pronged approach for courts deciding a
motion to dismiss. The Court instructed
district courts to first “identify[ ] pleadings
that, because they are no more than
conclusions, are not entitled to the
assumption of truth.” 556 U.S. at 679.
Though “legal conclusions can provide the
framework of a complaint, they must be
supported by factual allegations.”
Id.
Second, if a complaint contains “wellpleaded factual allegations, a court should
assume their veracity and then determine
whether they plausibly give rise to an
entitlement to relief.” Id.
Where, as here, the plaintiff is proceeding
pro se, “a court is obliged to construe his
pleadings liberally, particularly when they
allege civil rights violations.” McEachin v.
McGuinnis, 357 F.3d 197, 200 (2d Cir.
2004). A pro se plaintiff’s complaint, while
liberally interpreted, still must “‘state a claim
to relief that is plausible on its face.’”
Mancuso v. Hynes, 379 F. App’x 60, 61 (2d
Cir. 2010) (quoting Iqbal, 556 U.S. at 678);
see also Harris v. Mills, 572 F.3d 66, 72 (2d
Cir. 2009) (applying Twombly and Iqbal to
pro se complaint).
III. DISCUSSION
A. Section 1983 Claims
When a court reviews a motion to dismiss
for lack of subject-matter jurisdiction, it
Plaintiff brings several claims under
Section 1983 against the defendants. 1 To
and therefore are not suable entities”); see also Joseph
v. Nassau Cty. Corr. Ctr., No. 12-CV-4414
(JFB)(AKT), 2013 WL 1702162, at *3 (E.D.N.Y. Apr.
19, 2013) (dismissing claims against Nassau County
Correctional Center and Nassau County Sheriff’s
Department because “both entities are ‘administrative
arms’ of a municipality, Nassau County, and
accordingly, cannot be sued.”). “Under New York
law, departments that are merely administrative arms
of a municipality do not have a legal identity separate
and apart from the municipality and, therefore, cannot
1
Plaintiff asserts Section 1983 claims against the
NCCC, Nassau County Sheriff’s Department, and the
Nassau County Department of Health. The Court
notes, however, that these entities are “administrative
arms” of a municipality, Nassau County, and
accordingly, cannot be sued. See, e.g., Melendez v.
Nassau Cty., No. 10-CV-2516 (SJF)(WDW), 2010
WL 3748743, at *5 (E.D.N.Y. Sept. 17, 2010)
(dismissing plaintiff’s claims against the Nassau
County Sherriff’s Department of Correction and
Nassau County Correctional Center because those
entities are “administrative arms of Nassau County,
3
prevail on a claim under Section 1983, a
plaintiff must show: (1) the deprivation of
any rights, privileges, or immunities secured
by the Constitution and its laws; (2) by a
person acting under the color of state law. 42
U.S.C. § 1983. “Section 1983 itself creates
no substantive rights; it provides only a
procedure for redress for the deprivation of
rights established elsewhere.” Sykes v.
James, 13 F.3d 515, 519 (2d Cir. 1993)
(citation omitted). Plaintiff brings two
separate claims under Section 1983 alleging
violations of his Eighth Amendment right to
be free from cruel and unusual punishment.2
First, plaintiff alleges deliberate indifference
to his medical needs. Second, plaintiff
alleges that he was served contaminated
meals. The Court concludes that plaintiff has
adequately stated a claim for cruel and
unusual punishment regarding his claims for
deliberate indifference and inadequate food
preparation.
1. Deliberate Indifference
“The Eighth Amendment forbids
‘deliberate indifference to serious medical
needs of prisoners.’” Spavone v. N.Y. State
Dep’t of Corr. Servs., 719 F.3d 127, 138 (2d
Cir. 2013) (quoting Estelle v. Gamble, 429
U.S. 97, 104 (1976)). “There are two
elements to a claim of deliberate indifference
to a serious medical condition.” Caiozzo v.
Koreman, 581 F.3d 63, 72 (2d Cir. 2009).
“The first requirement is objective: the
alleged deprivation of adequate medical care
must be sufficiently serious.” Spavone, 719
F.3d at 138 (citation and internal quotation
marks omitted). Analyzing this objective
requirement requires two inquiries. “The
first inquiry is whether the prisoner was
actually deprived of adequate medical care.”
Salahuddin v. Goord, 467 F.3d 263, 279 (2d
Cir. 2006). The second inquiry is “whether
the inadequacy in medical care is sufficiently
serious. This inquiry requires the court to
examine how the offending conduct is
sue or be sued.” David v. Lynbrook Police Dep’t, 224
F. Supp. 2d 463, 477 (E.D.N.Y. 2002). Thus, plaintiff
cannot raise a plausible Section 1983 claim against the
NCCC, Nassau County Sheriff’s Department, or the
Nassau County Department of Health, and such claims
are dismissed.
would be useful to assure opportunity for vigorous
exercise during inclement weather, . . . an occasional
delay without exercise when weather conditions
preclude outdoor activity . . . is [not] cruel and unusual
punishment. With outdoor recreation space provided
and opportunity for its daily use assured, the absence
of additional exercise space indoors . . . is not a denial
of constitutional rights.” 757 F.2d at 36; see also
Patterson, 2012 WL 3264354, at *7 (granting motion
to dismiss plaintiff’s claim that detainees were “made
to have outdoor recreation even in heavy snow and
rain”); Johnakin v. NYC Dep’t of Corr., No. 11-CV4807 (SLT)(LB), 2013 WL 5519998, at *14 (E.D.N.Y.
Sept. 30, 2013) (granting motion to dismiss plaintiff’s
claim that inmates were unable to exercise in the
indoor gym during bad weather); Simmons v. Cripps,
No. 12-CV-1061 (PAC)(DF), 2013 WL 1290268, at
*17 (S.D.N.Y. Feb. 15, 2013), report and
recommendation
adopted,
No.
12-CV-1061
(PAC)(DF), 2013 WL 1285417 (S.D.N.Y. Mar. 28,
2013) (dismissing plaintiff’s claim that detainees were
“denied access to the gym during inclement weather”).
Thus, because plaintiff does not have a constitutional
right to exercise indoors, any claim based upon not
being able to have indoor recreation time would not be
cognizable.
2
To the extent that plaintiff attempts to raise a separate
claim for the deprivation of recreation time, that
allegation alone would be insufficient as a matter of
law to raise an Eighth Amendment issue. “Although a
prisoner may satisfy the objective component of the
Eighth Amendment test by showing that he was denied
meaningful exercise for a substantial period of time, .
. . temporary denials of exercise may be
constitutional.” Davidson v. Coughlin, 968 F. Supp.
121, 129 (S.D.N.Y. 1997) (internal citations omitted).
Further, “there is no constitutional right to exercise
indoors.” Patterson v. City of New York, No. 11-CV7976 (DLC), 2012 WL 3264354, at *7 (S.D.N.Y. Aug.
9, 2012). In Anderson v. Coughlin, 757 F.2d 33 (2d
Cir. 1985), the Second Circuit affirmed the grant of
summary judgment to defendants where the prisoner
plaintiffs requested an indoor exercise space in
addition to their outside space. The Second Circuit
noted that while “[n]o doubt indoor exercise space
4
inadequate and what harm, if any, the
inadequacy has caused or will likely cause
the prisoner.” Id. at 280. To meet this
requirement, “the inmate must show that the
conditions, either alone or in combination,
pose an unreasonable risk of serious damage
to his health.” Walker v. Schult, 717 F.3d
119, 125 (2d Cir. 2013). “There is no settled,
precise metric to guide a court in its
estimation of the seriousness of a prisoner’s
medical condition.” Brock v. Wright, 315
F.3d 158, 162 (2d Cir. 2003). Nevertheless,
the Second Circuit has “presented the
following non-exhaustive list of factors to
consider when evaluating an inmate’s
medical condition: ‘(1) whether a reasonable
doctor or patient would perceive the medical
need in question as important and worthy of
comment or treatment, (2) whether the
medical condition significantly affects daily
activities, and (3) the existence of chronic and
substantial pain.’” Morales v. Fischer, 46 F.
Supp. 3d 239, 247 (W.D.N.Y. 2014) (quoting
Brock, 315 F.3d at 162) (additional internal
quotation marks omitted); see also Griffin v.
Amatucci, No. 11-CV-1125 (MAD)(TWD),
2014 WL 2779305, at *4 (N.D.N.Y. June 19,
2014), rev’d in part on other grounds, 611 F.
App’x 732 (2d Cir. 2015) (same).
purposeful infliction of harm; it suffices if the
plaintiff proves that the official acted with
deliberate indifference to inmate health.”
Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir.
2014) (citation and internal quotation marks
omitted).
“Deliberate indifference is a
mental state equivalent to subjective
recklessness” and it “requires that the
charged official act or fail to act while
actually aware of a substantial risk that
serious inmate harm will result.” Id. (citation
and internal quotation marks omitted). In
contrast, mere negligence is not enough to
state a claim for deliberate indifference. See
Walker, 717 F.3d at 125; Vail v. City of New
York, 68 F. Supp. 3d 412, 424 (S.D.N.Y.
2014). Moreover, “mere disagreement over
the proper treatment does not create a
constitutional claim,” and accordingly, “[s]o
long as the treatment given is adequate, the
fact that a prisoner might prefer a different
treatment does not give rise to an Eight
Amendment
violation.”
Chance
v.
Armstrong, 143 F.3d 698, 703 (2d Cir. 1998);
see also Banks v. Annucci, 48 F. Supp. 3d
394, 408 (N.D.N.Y. 2014).
Here, the Court has liberally construed
plaintiff’s complaint – taking all of his
allegations as true and construing them in the
light most favorable to plaintiff – and, for the
reasons set forth below, cannot conclude at
this juncture, as a matter of law, that he has
failed to state a claim under Section 1983 for
deliberate indifference to serious medical
needs.
“The second requirement is subjective:
the charged officials must be subjectively
reckless in their denial of medical care.”
Spavone, 719 F.3d at 138. Under the second
prong, the question is whether defendants
“knew of and disregarded an excessive risk to
[a plaintiff’s] health or safety and that [they
were] both aware of facts from which the
inference could be drawn that a substantial
risk of serious harm existed, and also drew
the inference.” Caiozzo, 581 F.3d at 72
(citation, alterations, and internal quotation
marks omitted). In other words, “[i]n
medical-treatment cases not arising from
emergency situations, the official’s state of
mind need not reach the level of knowing and
With respect to the objective prong of
plaintiff’s deliberate indifference claim,
plaintiff alleges that he suffered food
poisoning, which made him feel as if his
stomach “was going to explode” due to his
pain and cramps. (Compl. ¶ IV.) Plaintiff
alleges that he “used the bathroom a total of
23 times,” and that the first time, on April 12,
2015, there was “blood in [his] stool with
dead small ants and roaches from food
5
poisoning.” (Id. ¶ IV.A.; see also id. at
Attachs. 2-3.) Taken as true, plaintiff’s claim
for food poisoning provides a plausible claim
that is sufficiently serious to meet the
objective requirement of a deliberate
indifference claim. See, e.g., Lewis v. Zon,
920 F. Supp. 2d 379, 389-90 (W.D.N.Y.
2013) (finding allegations that plaintiff
complained of vomiting, abdominal cramps,
diarrhea, and severe pain were sufficient to
raise a question of fact as to deliberate
indifference claim); Alexander v. Coughlin,
No. CV 90-3231 (RR), 1991 WL 150674, at
*2 (E.D.N.Y. July 26, 1991) (finding plaintiff
adequately pled deliberate indifference
regarding failure to treat his diarrhea
condition).
alleges that the officer told him to fill out
another sick call and put in a grievance, and
by that time, he had put in a total of three sick
calls and two grievances. (Id.) Drawing all
reasonable inferences in plaintiff’s favor,
plaintiff has plausibly alleged that County
Defendants knew of his food poisoning, but
decided not to provide him with medical
treatment, thus, consciously disregarding a
substantial risk of serious harm to plaintiff.
See, e.g., Perez v. Keysor, No. 9:10-CV-0518
(LEK)(CFH), 2013 WL 5493932, at *19
(N.D.N.Y. Sept. 30, 2013) (finding that
plaintiff demonstrated that a factual issue
existed with respect to the subjective prong
of his medical indifference claim, precluding
summary judgment, where plaintiff alleged
that he told guards of his medical need and
“attempt[ed] to receive medical assistance
from patrolling officers; however, they
disregarded his requests.”).3
With respect to the subjective prong,
plaintiff alleges that he told an officer that he
“was in serious pain,” believed that he had
food poisoning, and needed to go to
emergency medical, but that the officer told
him that “they weren’t calling medical unless
[plaintiff] was layed (sic) out cold on the
floor,” and directed plaintiff to fill out a sick
call form, which plaintiff did. (Compl. at
Attach. 1.) Plaintiff then alleges that he told
another officer who was doing rounds that he
wanted to go to the hospital because he had
food poisoning, but that the officer told him
that “they weren’t going to call anyone unless
[plaintiff] was layed (sic) out not breathing at
all and that was the only way [he] would go
to the hospital.” (Id. at Attach. 2.) Plaintiff
also alleges that he asked an officer to come
to his cell to “verify [his] claim and report it
to medical so medical could get [him] to the
emergency room at the hospital but he refuse
(sic) to come up.” (Id. at Attach. 3.) Plaintiff
Accordingly, plaintiff has stated a
plausible Section 1983 claim based upon
deliberate indifference to a serious medical
need.
2. Contaminated Food
Plaintiff also claims that he was subjected
to cruel and unusual punishment because he
was served contaminated food.
A prisoner alleging an Eighth
Amendment violation based on contaminated
food must demonstrate both an “objective
element—that
the
prison
officials’
transgression was ‘sufficiently serious’—and
a subjective element—that the officials acted,
or omitted to act, with a ‘sufficiently culpable
seen by Dr. Sanchez for the “unrelated reason” of
having his blood pressure checked. (Compl. at Attach
4.) Further, plaintiff alleges that although he told Dr.
Sanchez of his symptoms and gave Dr. Sanchez a stool
sample, Dr. Sanchez did not provide him any
treatment. (Id.) Such allegations do not provide a
basis for dismissing plaintiff’s claim at this juncture.
3
County Defendants argue that plaintiff failed to
allege a deliberate indifference claim because plaintiff
alleges that he saw a doctor, Dr. Sanchez, thus
demonstrating that “County Defendants administered
medical care instead of consciously disregarding
Plaintiff’s medical treatment.” (County Defs.’ Mem.
of Law at 5.) However, plaintiff alleges that he was
6
state of mind,’ i.e., with ‘deliberate
indifference to inmate health or safety.’”
Phelps v. Kapnolas, 308 F.3d 180, 185 (2d
Cir. 2002) (quoting Farmer v. Brennan, 511
U.S. 825, 834 (1994)).
The objective
requirement “‘does not mandate comfortable
prisons,’ [but] prisoners may not be denied
‘the minimal civilized measure of life’s
necessities.’” Id. (quoting Rhodes v.
Chapman, 452 U.S. 337, 347, 349 (1981)).
Thus, the Eighth Amendment requires
prisoners receive their “basic human needs—
e.g., food, clothing, shelter, medical care, and
reasonable safety.” Helling v. McKinney,
509 U.S. 25, 32 (1993) (citation and internal
quotation marks omitted). Prison officials
also may not “pose an unreasonable risk of
serious damage to [prisoners’] future health.”
Id. at 35.
Regarding the subjective
requirement, “‘a prison official cannot be
found liable under the Eighth Amendment for
denying an inmate humane conditions of
confinement unless the official knows of and
disregards an excessive risk to inmate health
or safety; the official must both be aware of
facts from which the inference could be
drawn that a substantial risk of serious harm
exists, and he must also draw the inference.’”
Phelps, 308 F.3d at 185-86 (quoting Farmer,
511 U.S. at 837).
which do not present an immediate danger to
the health and well being of the inmates who
consume it”) (quotation omitted); Thaxton v.
Simmons, No. 9:10-CV-1318 (MAD)(RFT),
2012 WL 360104, at *4 (N.D.N.Y. Jan. 5,
2012), report and recommendation adopted,
No. 9:10-CV-1318 (MAD)(RFT), 2012 WL
360141 (N.D.N.Y. Feb. 2, 2012) (finding that
plaintiff stated an Eighth Amendment
violation where plaintiff “ingested, but spit
out, the piece of metal, which caused injuries
to his tongue and cheek” that “developed into
dental pain and numbness to the right side of
his face”).
Here, plaintiff’s complaint alleges
sufficient facts to plead a claim of cruel and
unusual punishment due to the conditions of
confinement.
Plaintiff alleges that he
suffered food poisoning because he was
served food that contained dead small ants
and roaches. (Compl. ¶ IV.A.; id. at Attach.
3.) Plaintiff alleges that this resulted in
constant stomach cramps and serious pain for
two days. (Id. at Attach. 2.) At this stage of
the litigation, taking plaintiff’s allegations as
true, he has stated enough facts to plausibly
claim that his food was tampered with and
caused palpable injury to him.
Although plaintiff has not specifically
alleged that the County Defendants had
knowledge of the conditions under which the
food was prepared, “evidence that the risk
was obvious or otherwise must have been
known to a defendant is sufficient to permit a
jury to conclude that the defendant was
actually aware of it.” Brock v. Wright, 315
F.3d 158, 164 (2d Cir. 2003). Here, plaintiff
claims that the food contained dead ants and
roaches and, if true, a reasonable inference
could be drawn that the risk of contamination
was obvious. Thus, at the motion to dismiss
stage of the litigation, plaintiff has alleged
sufficient facts to satisfy the subjective prong
of his claim based on the obvious risk of the
alleged contamination of food in this case.
“Courts in the Second Circuit have
recognized that ‘depriving an inmate of food
or serving him contaminated food may
constitute a violation of the Eighth
Amendment.’” Varricchio v. Cty. of Nassau,
702 F. Supp. 2d 40, 56 (E.D.N.Y. 2010)
(quoting Quintana v. McCoy, No. 9:03-CV0924, 2006 WL 2827673, at *6 (N.D.N.Y.
Sept. 29, 2006)); see also Moncrieffe v.
Witbeck, No. 97-CV-253, 2000 WL 949457,
at *6 (N.D.N.Y. June 29, 2000) (same);
Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir.
1983) (per curiam) (concluding that the
Eighth Amendment requires prisoners to be
provided with “nutritionally adequate food
that is prepared and served under conditions
7
Jones v. Bock, 549 U.S. 199, 218 (2007);
Woodford, 548 U.S. at 88-90).
Accordingly, plaintiff has stated a
plausible Section 1983 claim based on
contaminated food that survives County
Defendants’ motion to dismiss.
Prior to Woodford, the Second Circuit
recognized some nuances in the
exhaustion
requirement:
(1)
administrative remedies that are
ostensibly ‘available’ may be
unavailable as a practical matter, for
instance, if the inmate has already
obtained a favorable result in
administrative proceedings but has no
means of enforcing that result, or if
the inmate has been deterred by
intimidation; (2) similarly, if prison
officials inhibit the inmate’s ability to
seek administrative review, that
behavior may equitably estop them
from raising an exhaustion defense;
(3) imperfect exhaustion may be
justified in special circumstances, for
instance if the inmate complied with
his reasonable interpretation of
unclear administrative regulations, or
if the inmate reasonably believed he
could raise a grievance in disciplinary
proceedings and gave prison officials
sufficient information to investigate
the grievance.
B. Failure to Exhaust
County Defendants argue that plaintiff’s
claims are barred by the Prison Litigation
Reform Act (“PLRA”) because plaintiff
failed to exhaust available administrative
remedies at the NCCC prior to commencing
this action.
The PLRA states that “[n]o action shall
be brought with respect to prison conditions
under [42 U.S.C. § 1983], or any other
Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until
such administrative remedies as are available
are exhausted.” 42 U.S.C. § 1997e(a). “The
PLRA exhaustion requirement ‘applies to all
inmate suits about prison life, whether they
involve general circumstances or particular
episodes, and whether they allege excessive
force or some other wrong.’” Espinal v.
Goord, 558 F.3d 119, 124 (2d Cir. 2009)
(quoting Porter v. Nussle, 534 U.S. 516, 532
(2002)). “Prisoners must utilize the state’s
grievance procedures, regardless of whether
the relief sought is offered through those
procedures.” Id. (citing Booth v. Churner,
532 U.S. 731, 741 (2001)).
“Proper
exhaustion demands compliance with an
agency’s deadlines and other critical
procedural rules because no adjudicative
system can function effectively without
imposing some orderly structure on the
course of its proceedings.” Woodford v. Ngo,
548 U.S. 81, 90-91 (2006). Therefore, the
exhaustion inquiry requires a court to “look
at the state prison procedures and the
prisoner’s grievance to determine whether
the prisoner has complied with those
procedures.” Espinal, 558 F.3d at 124 (citing
Reynoso v. Swezey, 238 F. App’x 660, 662
(2d Cir. 2007) (internal citations omitted);
see also Davis v. New York, 311 F. App’x
397, 399 (2d Cir. 2009) (citing Hemphill v.
New York, 380 F.3d 680, 686, 691 (2d Cir.
2004)). Initially, it was unclear whether the
above-discussed considerations would be
impacted by Woodford. See, e.g., Reynoso,
238 F. App’x at 662 (“Because we agree with
the district court that [plaintiff] cannot
prevail on any of these grounds, we have no
occasion to decide whether Woodford has
bearing on them.”); Ruggiero v. Cnty. of
Orange, 467 F.3d 170, 176 (2d Cir. 2006)
(“We need not determine what effect
8
Woodford has on our case law in this area,
however, because [plaintiff] could not have
prevailed even under our pre-Woodford case
law.”). However, even after Woodford, the
Second Circuit has continued to hold that an
inmate’s failure to comply with the
exhaustion requirement may be excused on
these grounds. See Messa, 652 F.3d 305, 309
(2d Cir. 2011) (citing Hemphill factors).
conclude on this record that plaintiff failed to
exhaust his administrative remedies. See,
e.g., Moschetto v. Nassau Cty. Sheriff, No.
10-CV-1971 (JFB)(AKT), 2011 WL
2457927, at *4 n.3 (E.D.N.Y. June 16, 2011).
Thus, defendants’ motion to dismiss for a
failure to allege exhaustion is dismissed
without prejudice to renewal at a later stage
in the litigation once discovery on this issue
is complete.
As
the
Supreme
Court
has
held, exhaustion is an affirmative defense.
See Jones, 549 U.S. at 216 (“We conclude
that failure to exhaust is an affirmative
defense under the PLRA, and that inmates are
not required to specially plead or demonstrate
exhaustion in their complaints.”); see also
Key v. Toussaint, 660 F. Supp. 2d 518, 523
(S.D.N.Y.
2009)
(Report
and
Recommendation) (“Failure to exhaust
administrative remedies under the PLRA is
an affirmative defense, . . . and thus the
defendants have the burden of proving that
[plaintiff’s] retaliation claim has not been
exhausted.” (citations omitted)).
C. Defendant New York State
New York State moved to dismiss the
complaint under Rule 12(b)(1) on the
grounds that plaintiff’s action against them is
barred by the Eleventh Amendment. Because
New York State is entitled to Eleventh
Amendment immunity, the claims against it
must be dismissed.
Plaintiff acknowledges that the NCCC
had a grievance procedure in place, and
alleges that he filed two grievances, neither
of which was answered. (Compl. ¶ II.)
County Defendants argue that plaintiff
“failed to exhaust his administrative remedies
prior to initiating the present action by not
taking his grievance to the highest level of
administrative review. Plaintiff merely states
that he filed two grievances and none were
answered although he concedes that he met
with Dr. Sanchez.” (County Defs.’ Mem. of
Law at 8.) In his letter in opposition, plaintiff
argues that “defendants buried [his] paper
trail” and that he did in fact exhaust his
administrative remedies. (Pl.’s Opp’n.)
The Eleventh Amendment states that the
“[j]udicial power of the United States shall
not be construed to extend to any
suit . . . commenced or prosecuted against
one of the United States by Citizens of
another State, or by Citizens or Subjects of
any Foreign State.” U.S. Const. amend. XI.
Thus, the Eleventh Amendment bars federal
suits against state governments by a state’s
citizens, unless that state “waive[s] its . . .
immunity from suit in a federal court,”
Lapides v. Bd. of Regents of Univ. of Ga., 535
U.S. 613, 618 (2002), or Congress
“abrogate[s]
such
immunity . . . [by]
mak[ing] its intention to abrogate
unmistakably clear in the language of [a
federal] statute and acts pursuant to a valid
exercise of its power under § 5 of the
Fourteenth Amendment,” Nev. Dep’t. of
Human Res. v. Hibbs, 538 U.S. 721, 726
(2003).
Construing the allegations in the
complaint and drawing all reasonable
inferences in plaintiff’s favor, as the Court
must on a motion to dismiss, the Court cannot
New York “has not waived its immunity
as to suits seeking either monetary or
injunctive relief in federal court.”
Goonewardena v. New York, 475 F. Supp. 2d.
9
310, 322 (S.D.N.Y. 2007) (citing N.Y. Court
of Claims Act § 8 (McKinney 2006)). In
addition, Congress has not abrogated such
immunity. Accordingly, New York State is
entitled to Eleventh Amendment immunity,
and the claims against it must be dismissed.
See, e.g., Marmot v. Bd. of Regents, 367 F.
App’x 191, 192 (2d Cir. 2010) (affirming
dismissal of Section 1983 action against New
York state agency and stating that “[i]t is
well-established that New York has not
consented to § 1983 suits in federal court”).
IV. CONCLUSION
For the foregoing reasons, County
Defendants’ motion to dismiss is denied.
However, all claims against Nassau County
Correctional Center, Nassau County Sheriff’s
Department, and the Nassau County
Department of Health are dismissed.
Defendant New York State’s motion to
dismiss pursuant to Rule 12(b)(1) is granted,
and the claims against it are dismissed.
SO ORDERED.
________________________
JOSEPH F. BIANCO
United States District Judge
Dated:
March 21, 2016
Central Islip, NY
***
Plaintiff proceeds pro se. County Defendants
are represented by Thomas Lai, Nassau
County Attorney Office, 1 West Street,
Mineola, NY 11501. New York State is
represented by Lori L. Pack, Office of the
New York State Attorney General, 300
Motor Parkway, Suite 205, Hauppauge, NY
11788.
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