Calhoun v. The Department of Correction & Others: et al
Filing
49
REPORT AND RECOMMENDATIONS re: 43 MOTION to Dismiss, filed by The City of New York. For all the foregoing reasons, I respectfully recommend that the City's motion to dismiss (Docket Item 43) be granted and that plaintiff's complaint be dismissed with prejudice as to all defendants. Objections to R&R due by 1/31/2014. (Signed by Magistrate Judge Henry B. Pitman on 1/14/2014). Copies Mailed By Chambers. (ja)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
SIDNEY CALHOUN,
:
Plaintiff,
THE NEW YORK CITY DEPARTMENT,
OF CORRECTION, et al.,
10 Civ. 182 (LAK)(HBP)
:
-against-
:
REPORT AND
RECOMMENDATION
:
:
Defendants.
:
-----------------------------------X
PITMAN, United States Magistrate Judge:
TO THE HONORABLE LEWIS A. KAPLAN, United States District Judge,
I.
Introduction
Plaintiff Sidney Calhoun, a former detainee at the
George R. Vierno Center ("GRVC") on Rikers Island, commenced this
action, pro se, against the New York City Department of Correction ("NYCDOC"), the Department of Mental Health and Hygiene and
twelve individual defendants pursuant to 42 U.S.C. § 1983.
Plaintiff claims that he was subjected dangerous conditions and
received inadequate medical care in violation of his Eighth
Amendment right against cruel and unusual punishment.
On con-
sent, the NYCDOC and the Department of Mental Health and Hygiene
were dismissed from this action and replaced by the City of New
York (the "City") (Order of Service, dated Apr. 12, 2013, (Docket
Item 36) at 3).
By notice of motion, dated July 15, 2013, the City
moved to dismiss plaintiff's amended complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.
On November
22, 2013, after nearly six months without response to the motion
from plaintiff, I issued an Order to plaintiff, stating:
By notice of motion dated July 15, 2013 (Docket
Item 43), defendants have moved to dismiss the complaint. To date, plaintiff has not served or filed any
opposition to the motion, nor has he requested an
extension of time within which to serve opposition
papers.
Although I shall consider the merits of the
defendants' motion and shall not grant the motion on
default, plaintiff's failure to submit any opposition
to the motion to dismiss makes it substantially more
likely that the motion will be granted. Thus, plaintiff's failure to oppose the motion increases the
likelihood that his complaint will be dismissed.
Accordingly, if plaintiff wishes to submit any
opposition to the defendants' pending motion, he is
directed to serve and file such papers no later than
December 16, 2013. In the absence of a request for an
extension of time, I shall consider the motion fully
submitted as of that date and ready for decision.
(Order, dated November 22, 2013, (Docket Item 48)).
A copy of
this Order was mailed to plaintiff at Sing Sing Correctional
Facility, 354 Hunter Street, Ossining New York 10562, and was
2
returned to my chambers as undeliverable.1
Plaintiff has not
responded to defendant's motion or communicated with my chambers
in any way since this motion was filed.
Accordingly, I consider
the City's motion fully submitted and ripe for decision.
II.
Facts2
Plaintiff's claim arises from allegedly dangerous
conditions to which he was subjected while in the custody of
NYCDOC as a pre-trial detainee at GRVC on Rikers Island.
At or about midday on June 19, 2009, plaintiff was
transported to GRVC's punitive segregation unit (Am. Compl. 15).
He was placed in a cell that had previously undergone repairs,
but was recently deemed habitable by prison officials (Am. Compl.
15).
However, the cell's windows were bolted shut and the cell's
ventilation and sprinkler systems were inoperable (Am. Compl.
15).
Plaintiff also alleges that the cell did not contain a
mattress or a towel, sheet, face cloth or cup ("Toiletries") (Am.
Compl. 16).
Plaintiff claims that Corrections Officers Abrams
1
As noted in my November 22, 2013 Order, plaintiff was
apparently released from custody on June 5, 2013, but the address
set forth in the text is the only address plaintiff has provided
to the Court.
2
The facts set forth herein are drawn from plaintiff's
amended complaint (Amended Complaint, dated February 20, 2010,
(Docket Item 4) ("Am. Compl.")) unless otherwise noted.
3
and Chuck,3 the touring officers that afternoon, failed to alert
the touring captain that his cell lacked a mattress or to obtain
a mattress and Toiletries for him themselves (Am. Compl. 16).
At
or around 4:15 p.m., plaintiff received a mattress but not the
Toiletries (Am. Compl. 16).
At or around 8:15 p.m. that evening, plaintiff, while
washing his face, flipped the light switch in his cell and
received an electric shock (Am. Compl. 17).
The light switch
allegedly sparked and "exploded," resulting in electrical power
being cut off to the top and bottom tiers of plaintiff's cell
block and black residue around the socket (Am. Compl. 17, 20).
Although plaintiff's accounts of his injuries are inconsistent,
he asserts that he suffered severe pain from burns on the middle
and ring fingers of his right hand, intense throbbing, and then
numbness (Am. Compl. 17-18).
Officer Chuck responded at around
8:40 p.m. and arranged for plaintiff to be escorted to the GRVC's
clinic (Am. Compl. 17).
Between 9:00 p.m. and 9:30 p.m., Correc-
tions Officer Lumina brought plaintiff to GRVC's clinic for
treatment (Am. Compl. 17).
3
Plaintiff handwrote his amended complaint on a form
complaint. He spells the names of several officers
inconsistently.
4
The clinic's physician that evening, Dr. Pravin Ranjan,
diagnosed plaintiff with first degree burns to the middle and
ring fingers of his right hand (Am. Compl. 25).
Dr. Ranjan
dressed his hand and prescribed plaintiff Motrin and Silvadene
cream (Am. Compl. 18, 25).
After leaving the clinic, plaintiff refused to return
to his cell.
Captain Banks ultimately persuaded plaintiff to do
so by offering to provide his missing Toiletries (Am. Compl. 18).
After plaintiff returned to his cell he learned that his telephone and shower privileges had been revoked.
receive the missing Toiletries (Am. Compl. 19).
He also did not
On two subse-
quent occasions, plaintiff's also found his food "destroyed" (Am.
Compl. 19).
Plaintiff concludes that Captain Querin, Captain
Smith, Deputy Stutes, and Corrections Officers Abrams, Chuck,
Lopez and Ruiz revoked these privileges at the order of Captain
Banks because he refused to return to his cell (Am. Compl. 19).
He also asserts that Captain Banks delayed the investigation of
the light switch for the same reason (Am. Compl. 20).
Plaintiff was given a follow-up appointment at GRVC's
clinic three days later on June 22, 2009.
Plaintiff told the
clinic staff that he needed new dressing and Silvadene, but the
attending physician advised plaintiff that he had fully recovered
from treatment (Am. Compl. 20).
The medical records attached to
5
the amended complaint indicate that GRVC's medical staff also saw
plaintiff again on June 28, 2009 and July 2, 2009 (Am. Compl. 32,
34).
Three weeks after the incident with the light switch,
plaintiff was transferred to another cell (Am. Compl. 5, 19).
Some time after plaintiff's transfer, maintenance workers repaired the defective light switch (Am. Compl. 20).
Finally,
plaintiff asserts that prison officials had been aware of the
defective light switch before his accident because "countless"
complaints had been filed with unidentified individuals regarding
"an 'exploding light switch'" (Am. Compl. 19).
Plaintiff does
not disclose how he knows this putative fact.
Plaintiff claims that he suffered a physical injury to
his right hand and trauma from the three weeks he was forced to
stay in the cell in question.
He seeks $5,000,000 in damages for
pain and suffering and emotional stress.
6
III.
Analysis
A.
Standards Applicable
to a Motion to Dismiss
The standards applicable to a motion to dismiss pursuant to Rule 12(b)(6) are well-settled and require only brief
review.
When deciding a motion to dismiss under Rule
12(b)(6), [the court] must accept as true all
well-pleaded factual allegations of the complaint and
draw all inferences in favor of the pleader. See City
of Los Angeles v. Preferred Communications, Inc., 476
U.S. 488, 493, 106 S. Ct. 2034, 90 L. Ed. 2d 480
(1986); Miree v. DeKalb County, 433 U.S. 25, 27 n. 2,
97 S. Ct. 2490, 53 L. Ed. 2d 557 (1977) (referring to
"well-pleaded allegations"); Mills v. Polar Molecular
Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). "'[T]he
complaint is deemed to include any written instrument
attached to it as an exhibit or any statements or
documents incorporated in it by reference.'" Int'l
Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d
69, 72 (2d Cir. 1995) (quoting Cortec Indus., Inc. v.
Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991)). The
Court also may consider "matters of which judicial
notice may be taken." Leonard T. v. Israel Discount
Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999)
(citing Allen v. WestPoint-Pepperill, Inc., 945 F.2d
40, 44 (2d Cir. 1991)). In order to avoid dismissal, a
plaintiff must do more than plead mere "[c]onclusory
allegations or legal conclusions masquerading as factual conclusions." Gebhardt v. Allspect, Inc., 96 F.
Supp. 2d 331, 333 (S.D.N.Y. 2000) (quoting 2 James Wm.
Moore, Moore's Federal Practice ¶ 12.34[a] [b] (3d ed.
1997)).
Hoffenberg v. Bodell, 01 Civ. 9729 (LAP), 2002 WL 31163871 at *3
(S.D.N.Y. Sept. 30, 2002) (Preska, D.J.); see also In re Elevator
7
Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007); Johnson &
Johnson v. Guidant Corp., 525 F. Supp. 2d 336, 345-46 (S.D.N.Y.
2007) (Lynch, D.J.).
The Supreme Court has clarified the proper mode of
inquiry to evaluate a motion to dismiss pursuant to Rule
12(b)(6), which uses as a starting point the principle that "[a]
pleading that states a claim for relief must contain . . . a
short and plain statement of the claim showing that the pleader
is entitled to relief."
Fed.R.Civ.P. 8(a).
[I]n Bell Atl[antic] Corp. v. Twombly, 550 U.S. 544
(2007), the Court disavowed the well-known statement in
Conley v. Gibson, 355 U.S. 41, 45-46 (1957)[,] that "a
complaint should not be dismissed for failure to state
a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." 550 U.S. at 562.
Instead, to survive a motion to dismiss under Twombly,
a plaintiff must allege "only enough facts to state a
claim to relief that is plausible on its face." Id. at
570.
Talley v. Brentwood Union Free Sch. Dist., 08 Civ. 790, 2009 WL
1797627 at *4 (E.D.N.Y. June 24, 2009).
While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations
. . . a plaintiff's obligation to provide the "grounds"
of his "entitle[ment] to relief" requires more than
labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do . . . .
Factual allegations must be enough to raise a right to
relief above the speculative level . . . on the assumption that all the allegations in the complaint are true
(even if doubtful in fact) . . . .
8
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citations, internal quotations and alterations omitted).
In evaluating a motion under Rule (12)(b)(6), the court
must determine whether the plaintiff has alleged any facially
plausible claims.
Fahs Constr. Grp., Inc. v. Gray, 725 F.3d 289,
290 (2d Cir. 2013) (per curiam).
A claim is plausible when its
factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a
defendant has acted unlawfully."
Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citations omitted).
"Where a complaint pleads
facts that are merely consistent with a defendant's liability, it
stops short of the line between possibility and plausibility of
entitlement to relief."
Ashcroft v. Iqbal, supra, 556 U.S. at
678 (internal quotations omitted).
Accordingly, "where the
well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged -- but
it has not 'show[n]' -- 'that the pleader is entitled to relief.'"
Ashcroft v. Iqbal, supra, 556 U.S. at 679, quoting
Fed.R.Civ.P. 8(a)(2).
"[T]he tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to legal
9
conclusions," however.
Ashcroft v. Iqbal, supra, 556 U.S. at
663; Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir.
2013).
As a result, "a court considering a motion to dismiss can
choose to begin by identifying pleadings that, because they are
no more than conclusions, are not entitled to the assumption of
truth.
While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations."
Ashcroft v. Iqbal, supra, 556 U.S. at 664.
Nevertheless, where, as here, a plaintiff proceeds pro
se, the complaint must be liberally construed to raise the
strongest claims the allegations suggest.
Sykes v. Bank of Am.,
723 F.3d 399, 403 (2d Cir. 2013); Sims v. Blot, 534 F.3d 117, 133
(2d Cir. 2008); Pabon v. Wright, 459 F.3d 241, 248 (2d Cir.
2006); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Tracy v. Freshwater, 623 F.3d 90, 100-04 (2d Cir. 2010) (observing that the requirement of "special solicitude" includes liberal
construction of papers, "relaxation of the limitations on the
amendment of pleadings," leniency in enforcing procedural rules,
and "deliberate, continuing efforts to ensure that a pro se
litigant understands what is required of him.") (citations
omitted).
10
B.
Section 1983 Claims
Section 1983 imposes liability on individuals who,
while acting under the color of state law, violate an individual's federally-protected rights.
Perkins v. Brown, 285 F. Supp.
2d 279, 283 (E.D.N.Y. 2003); Johnson v. Bendheim, 00 Civ. 720
(JSR), 2001 WL 799569 at *5 (S.D.N.Y. July 13, 2001) (Rakoff,
D.J.).
Plaintiff claims that defendants violated his constitu-
tional rights by subjecting him to unreasonable health and safety
risks and providing inadequate medical treatment for injuries he
sustained during his incarceration.
The United States Constitution protects incarcerated
individuals against deliberate indifference to conditions that
pose a substantial risk of serious harm to his physical wellbeing.
If the individual is a sentenced prisoner, the source of
protection is the Eighth Amendment.
825, 828 (1994) (citations omitted).
Farmer v. Brennan, 511 U.S.
If the individual is a
pretrial detainee, the source of protection is the Due Process
Clause of the Fourteenth Amendment.
845, 856 (2d Cir. 1996).
Weyant v. Okst, 101 F.3d
The source of the protection is of no
practical importance because the Fourteenth Amendment provides
substantially the same protection to pretrial detainees that the
Eighth Amendment provides to sentenced prisoners.
11
See Bell v.
Wolfish, 441 U.S. 520, 535 n.16 (1979); Weyant v. Okst, supra,
101 F.3d at 856; Bryant v. Maffucci, 923 F.2d 979, 983 (1991);
see also Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000)("We
have often applied the Eighth Amendment deliberate indifference
test to pre-trial detainees bringing actions under the Due
Process Clause of the Fourteenth Amendment.").
Moreover,
"[b]ecause the due process rights of pretrial detainees are 'at
least as great as the Eighth Amendment protections available to a
convicted prisoner,' and the same standard applies, cases cited
that refer to the Eighth Amendment are thus applicable to the
conditions of confinement claims alleged [by a pretrial detainee]."
Pine v. Seally, No. 9:09-CV-1198 (DNH/ATB), 2011 WL
856426 at *3 n.12 (N.D.N.Y. Feb. 4, 2011), quoting City of Revere
v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).
1.
Deliberate Indifference
to Plaintiff's Conditions
of Confinement
The Eighth Amendment prohibits "cruel and unusual
punishments."
In Wilson v. Seiter, 501 U.S. 294, 296-302 (1991),
the United States Supreme Court addressed an inmate's claim that
prison conditions violated the Eighth Amendment's prohibition
against cruel and unusual punishment and noted that "[t]he
Constitution . . . 'does not mandate comfortable prisons,' . . .
12
and only those deprivations denying 'the minimal civilized
measure of life's necessities,' . . . are sufficiently grave to
form the basis of an Eighth Amendment violation."
Wilson v.
Seiter, supra, 501 U.S. at 298, quoting Rhodes v. Chapman, 452
U.S. 337, 347, 349 (1981); Salahuddin v. Goord, 467 F.3d 263, 267
(2d Cir. 2006).
In Farmer v. Brennan, supra, 511 U.S. at 834, the
Supreme Court articulated a two-part test for determining whether
prison conditions violated the Eighth Amendment with both objective and subjective components.
"First, the deprivation alleged
must be, objectively, 'sufficiently serious.'"
Farmer v. Brenna-
n, supra, 511 U.S. at 834, quoting Wilson v. Seiter, supra, 501
U.S. at 298; see also Hudson v. McMillian, 503 U.S. 1, 5 (1992).
For claims premised on "a failure to prevent harm, the inmate
must show that he is incarcerated under conditions posing a
substantial risk of serious harm."
Farmer v. Brennan, supra, 511
U.S. at 834, citing Helling v. McKinney, 509 U.S. 25, 35 (1993).
Second, the Supreme Court required that "a prison
official must have a 'sufficiently culpable state of mind.'"
Farmer v. Brennan, supra, 511 U.S. at 834, quoting Wilson v.
Seiter, supra, 501 U.S. at 297; see also Wilson v. Seiter, supra,
501 U.S. at 302-303; Hudson v. McMillian, supra, 503 U.S. at 8;
Trammell v. Keane, supra, 338 F.3d 155, 161 (2d Cir. 2003).
13
In
cases involving prison conditions, "that state of mind is one of
'deliberate indifference' to inmate health or safety."
Farmer v.
Brennan, supra, 511 U.S. at 834, quoting Wilson v. Seiter, supra,
501 U.S. at 302-03; see also Helling v. McKinney, supra, 509 U.S.
at 34-35; Hudson v. McMillian, supra, 503 U.S. at 5; Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Hines v. Lacy, 189 F.3d 460,
1999 WL 642915 at *3 (2d Cir. 1999) (unpublished) (internal
citations omitted); Lyncee v. Jenks, 98 Civ. 3638 (RCC), 2000 WL
343893 at *2-*3 (S.D.N.Y. Mar. 31, 2000) (Casey, D.J.).
An
official acts with deliberate indifference when she "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."
Farmer v. Brennan, supra,
511 U.S. at 837; see also Wilson v. Seiter, supra, 501 U.S. at
298-302; Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994).
"The subjective element requires a state of mind that is the
equivalent of criminal recklessness . . . ."
Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).
Hathaway v.
"Not every governmen-
tal action affecting the interests or well-being of a prisoner is
subject to Eighth Amendment scrutiny . . . .
To be cruel and
unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for
14
the prisoner's interests or safety."
Whitley v. Albers, 475 U.S.
312, 319 (1986); accord County of Sacramento v. Lewis, 523 U.S.
833, 849 (1998), citing Daniels v. Williams, 474 U.S. 327, 328
(1986) ("[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.");
Kruzel v. County of Suffolk, 23 F. App'x 95, 96 (2d Cir. 2002);
John E. Andrus Mem'l, Inc. v. Daines, 600 F. Supp. 2d 563, 585
(S.D.N.Y. 2009) (Seibel, D.J.); Miner v. N.Y. State Dep't of
Health, 02 Civ. 3180 (MBM), 2004 WL 1152491 at *5 (S.D.N.Y. May
24, 2004) (Mukasey, D.J.).
A Section 1983 claim will not lie for merely unpleasant
prison conditions.
Courts outside of this Circuit, however, have
concluded that an inmate's forced exposure to the risk of electric shock can, in some circumstances, be objectively serious.
For example, forcing an inmate to work with faulty electrical
equipment or near exposed electrical wiring without appropriate
protection can pose a substantial risk of serious harm.
See,
e.g., Ambrose v. Young, 474 F.3d 1070, 1078 (8th Cir. 2007)
(finding an Eight Amendment violation where supervising officer
ordered inmates to stomp out a fire near a downed power line);
Hall v. Bennett, 379 F.3d 462, 464 (7th Cir. 2004) ("[W]orking on
a live electrical wire without adequate protective equipment
presents an objectively serious risk to inmate safety . . . .");
15
McKinney v. Archey, 1:08 CV 112 (JM), 2008 WL 3914978 at *3 (N.D.
Ind. Aug. 19, 2008) (noting that working with a defective electrical breaker "presents an objectively serious risk").
Simi-
larly, ungrounded, frayed or exposed wiring in an inmate's cell
or shower room, especially near water, can create an objectively
serious danger to an inmate's safety.
See, e.g., Cotton v.
Taylor, No. 97-60610, 1999 WL 155652 at *4 (5th Cir. 1999) (per
curiam) (holding that pooling water and sparking electrical
outlets in an inmate's cell pose a substantial risk of serious
harm); Huff v. Pundt, No. 2:11–cv–148, 2012 WL 2994839 at *8
(S.D. Tex. June 29, 2012) (concluding that a shower adjacent to
exposed wires and rusted light fixtures poses a substantial risk
of electrocution); Patterson v. Kistousky, No. 07C 5731, 2010 WL
5490653 at *3 (N.D. Ill. Dec. 30, 2010)(finding that multiple
shocks caused by faulty wiring in shower over a two month period
where the frequency and extent of those shocks were in dispute
potentially raised a colorable Eighth Amendment claim).
On the
other hand, absent any physical harm, potential electrical
hazards do not necessarily rise to the level of a constitutional
violation.
Van Nort v. Dickinson, No. CIV. S–09–1566 (KJM), 2010
WL 308715 at *2 (E.D. Cal. Jan. 12, 2010), citing Morissette v.
Peters, 45 F.3d 1119, 1123 (7th Cir. 1995) (dismissing plaintiff's allegations that wires and electrical outlets abutting the
16
steel frame of his bed posed a substantial risk of serious harm
absent allegations that the outlets were overloaded or that the
wiring was frayed or in poor condition); Robinson v. Detella, No.
95 C 4067, 1996 WL 422154 at *3-*4 (N.D. Ill. July 24, 1996)
(holding that plaintiff failed to state an Eighth Amendment claim
because he was not required to spend any time in basement where
the alleged electrical system had exposed wires and dripping
water).
Under the subjective component of the two-prong test, a
Section 1983 claim for exposure to electrical hazards will not
lie for conduct that is merely negligent.
Austin v. Craighead
Cnty. Jail, 189 F. App'x 583, 584 (8th Cir. 2006) (per curiam)
(no liability where defendant "believed the power to the wires
had been cut off, and Austin did not show that defendants actually knew of and disregarded, or were deliberately indifferent
to, a risk to his safety."); Turner v. Burnside, No. 5:06-CV-293
(CAR), 2011 WL 1230821 at *2-*3 (M.D. Ga. Feb. 22, 2011) (Report
& Recommendation), adopted at, 2011 WL 1193211 (M.D. Ga. Mar. 30,
2011), aff'd, 444 F. A'ppx 394, 396-97 (11th Cir. 2011) (recommending summary judgment be granted for defendant where plaintiff
presented no evidence that the supervising officer of his work
detail knew a defective oven posed a substantial risk of electrocution); McKinney v. Archey, supra, 2008 WL 3914978 at *4 (dis17
missing complaint where plaintiff failed to show (1) complaints
regarding defective electric breaker, (2) allegations that
defendants knew of the condition or (3) that the defect was
readily apparent); Littlejohn v. Moody, 381 F. Supp. 2d 507, 51112 (E.D. Va. 2005) (dismissing complaint notwithstanding defendant's knowledge that buffering unit had history of shocking
people; unit had recently been repaired and defendant was justified in assuming that equipment was no longer dangerous).
Finally, courts have dismissed plaintiffs' claims where
there is no genuine issue of fact that defendants were not
deliberately indifferent to defective electrical wiring in a
cell.
Compare Cotton v. Taylor, supra, 1999 WL 155652 at *4
(prison official made repairs after learning of the risk of
electric shock from pooling water in plaintiff's cell), and
Morissette v. Peters, supra, 45 F.3d at 1123, with Cody v.
Newborn, No. 6:09–cv–06026, 2011 WL 4368549 at *5 (W.D. Ark. Aug.
25, 2011) (Report & Recommendation), adopted at, 2011 WL 4368389
(W.D. Ark. Sept. 19, 2011) (failure to remedy hanging wires above
shower head after plaintiff's complaints of electric shock
demonstrated deliberate indifference).
Judged by the foregoing standards, I conclude that
plaintiff's claim should be dismissed to the extent it is based
on the allegedly unsafe conditions in his cell.
18
Assuming,
without deciding, that the circumstances were sufficiently
serious under the objective prong, plaintiff's amended complaint
does not allege facts sufficient to meet the subjective prong.
The amended complaint alleges that a defective light
switch in plaintiff's cell "exploded" when plaintiff used it (Am.
Compl. 17).
According to plaintiff, the switch sparked, steamed,
burned and cut off the power to the top and bottom tiers of the
cellblock (Am. Compl. 17, 20).
The electrical shock also caused
plaintiff to suffer burns, severe pain, throbbing and subsequent
numbness in his hand (Am. Compl. 17).
If true, these allegations
demonstrate that the defective light switch in plaintiff's cell
may have created an objectively serious danger to plaintiff's
health and safety.
As the cases above demonstrate, allegations
that (1) a cell contained faulty wiring, (2) the defect had the
potential to cause electric shock, and (3) the wiring defect
shocked plaintiff and caused non-trivial injuries can satisfy the
objective prong of a deliberate indifference claim.
Cotton v.
Taylor, supra, 1999 WL 155652 at *4; Huff v. Pundt, supra, 2012
WL 2994839 at *8; Patterson v. Kistousky, supra, 2010 WL 5490653
at *3.
Although plaintiff appears to have alleged facts that
satisfy the objective prong of a Section 1983 claim, his claim,
nevertheless, fails because he does not sufficiently allege any
19
facts that could sustain a finding of deliberate indifference.
Plaintiff does not sufficiently allege that defendants knew of
and disregarded a substantial risk to plaintiff's health or
safety, or that defendants were aware of facts from which they
could have inferred that there was a substantial risk of serious
harm, that they drew such an inference and that they disregarded
it.
Plaintiff does not allege that any of the defendants
knew that the light switch in his cell was defective.
The
closest plaintiff comes to alleging that the defendants knew of
an unreasonably dangerous condition in plaintiff's cell is to
allege that unidentified prison officials "knew [plaintiff's]
complaint was real [be]cause they had countless grievance[s] for
similar complaint[s] about an 'exploding light switch' to my
event [sic]" (Am. Compl. 19).
Assuming that this allegation
relates to the switch that allegedly injured plaintiff, I conclude that this allegation does not meet the plausibility standard set forth in
Ashcroft v. Iqbal, supra, 556 U.S. at 680-83.
Although I appreciate that no heightened pleading standard is
applicable in Section 1983 cases, Matos v. City of New York, 10
Civ. 4558, 2012 WL 7160430 at *6 n.6 (E.D.N.Y. Dec. 3, 2012),
plaintiff here is alleging facts that a pretrial detainee would
not know, i.e., the history of grievances regarding the condi20
tions of his cell.
In the absence of some explanation of the
basis for this allegation, I conclude that this aspect of the
complaint fails to allege "enough fact[s] to raise a reasonable
expectation that discovery will reveal evidence" sufficient to
sustain a finding of deliberate indifference.
Twombly v. Bell
Atlantic Corp., supra, 550 U.S. at 556.
Moreover, even if this allegation were plausible, it
fails to provide a basis on which to attribute knowledge of the
allegedly dangerous conditions to any of the named defendants.
See Brantley v. Fischer, 9:12-CV-1051 (NAM/RFT), 2013 WL 5466790
at *6 (N.D.N.Y. Sept. 30, 2013).
If the complaint fails to state
a claim against the individual defendants, it necessarily fails
to state a Section 1983 claim against the City.
City of Los
Angeles v. Heller, 475 U.S. 796, 799 (1986); Curley v. Village of
Suffern, 268 F.3d 65, 71 (2d Cir. 2001).4
Moreover, the response by prison officials to the
conditions in plaintiff's cell belies his claim of deliberate
indifference.
Plaintiff was moved to a new cell three weeks
after the incident and alleges no injury during those three weeks
4
The exception to Heller recognized in Barrett v. Orange
Cnty. Human Rights Comm'n, 194 F.3d 341, 347 (2d Cir. 1999) has
no application here because plaintiff does not allege that the
City authorized a policy that led to plaintiff's alleged injury.
See Sforza v. City of New York, 07 Civ. 6122 (DLC), 2009 WL
857496 at *9 (S.D.N.Y. Mar. 31, 2009) (Cote, D.J.).
21
(Am. Compl. 20).
The amended complaint also alleges that a
maintenance crew fixed the switch in his cell soon after plaintiff was transferred (Am. Compl. 20).
The cases are clear that
where, as here, prison officials resolve the electrical problem
rather than ignore it, they do not act with deliberate indifference.
Cotton v. Taylor, supra, 1999 WL 155652 at *4.
I also note that plaintiff claims other deficiencies in
his confinement.
Specifically, he alleges that he was deprived
of a mattress from midday to 4:15 p.m. on June 19, 2009 and was
denied Toiletries, phone and shower access, and, on two occasions, meals (Am. Compl. 15-16).
These deprivations are not
sufficiently serious to sustain a due process claim.
See, e.g.,
Trammell v. Keane, supra, 338 F.3d at 165 ("Deprivation of . . .
toiletries [other than toilet paper] for approximately two weeks
-- while perhaps uncomfortable -- does not pose such an obvious
risk to an inmate's health or safety . . . ."); Cunningham v.
Jones, 667 F.2d 565, 566 (6th Cir. 1982) (per curiam) (concluding
that the Eighth Amendment was not violated where the meals
provided were sufficient nutrition to sustain normal health);
Wiley v. Kilpatrick, No. 07-CV-6485 (MAT), 2013 WL 434188 at *10
(W.D.N.Y. Feb. 4, 2013) (same); Davis v. Chapple, No. 07-cv-321
(GTS/DRH), 2009 WL 6312502 at *13 (N.D.N.Y. Nov. 4, 2009) (Report
& Recommendation), adopted at, 2010 WL 985763 (N.D.N.Y. Mar. 16,
22
2010) (deprivation of a mattress for three days did not constitute an objectively serious harm); Tapp v. Taylor, No. 05–CV–1442
(LEK/DRH), 2009 WL 2473499 at *4-*5 (N.D.N.Y. July 16, 2009)
(inmate housed naked and without a mattress for five hours did
not constitute an Eighth Amendment violation).
These temporary
and minor deprivations, judged independently or in the aggregate,
did not subject plaintiff to unreasonable health and safety
risks.
2.
Deliberate Indifference
to Plaintiff's Serious
Medical Needs
Plaintiff also claims that he was given inadequate
medical care resulting from his injuries (Am. Compl. 3).
Under the Eighth, and in this case, the Fourteenth,
Amendments, the government is obligated to provide medical care
to inmates and "'deliberate indifference to serious medical needs
of prisoners constitutes the "unnecessary and wanton infliction
of pain" proscribed by the Eighth Amendment.'"
Washington v. The
City of New York, 10 Civ. 389 (LTS)(JLC), 2011 WL 566801 at *2
(S.D.N.Y. Feb. 15, 2011) (Swain, D.J.), quoting Estelle v.
Gamble, supra, 429 U.S. at 104.
However, not every claim of inadequate medical treatment by an inmate establishes a Constitutional violation.
23
Estelle v. Gamble, supra, 429 U.S. at 105.
A plaintiff must
satisfy both the objective and subjective prongs of the deliberate indifference standard to state such a claim.
Curcione, 657 F.3d 116, 122 (2d Cir. 2011).
See Hill v.
A plaintiff must
show that (1) "the alleged deprivation of medical treatment is,
in objective terms, 'sufficiently serious'" and (2) "the charged
official acted with a 'sufficiently culpable state of mind.'"
Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005) (internal
quotations omitted).
A medical condition is sufficiently serious if it is "a
condition of urgency, one that may produce death, degeneration,
or extreme pain."
Johnson v. Wright, supra, 412 F.3d at 403
(internal quotation omitted).
"Factors to consider in determin-
ing the existence of a serious medical condition include 'the
existence of an injury that a reasonable doctor or patient would
find important and worthy of comment or treatment; the presence
of a medical condition that significantly affects an individual's
daily activities; the existence of chronic and substantial pain,'
or 'the absence of adverse medical effects or demonstrable
physical injury.'"
Edmonds v. Cent. N.Y. Psychiatric Ctr., 10
Civ. 5810 (DAB)(KNF), 2011 WL 3809913 at *4 (S.D.N.Y. Aug. 25,
2011) (Batts, D.J.) (internal footnote and alterations omitted),
24
quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) and
Smith v. Carpenter, 316 F.3d 178, 187 (2d Cir. 2003).
"Furthermore, 'the particular risk of harm faced by a
prisoner due to the challenged deprivation of care, rather than
the severity of the prisoner's underlying medical condition,
considered in the abstract' is the relevant inquiry in deciding a
. . . claim based on temporary delay or interruption of medical
treatment."
Atkins v. Cnty. of Orange, 372 F. Supp. 2d 377, 413
(S.D.N.Y. 2005) (Conner, D.J.), quoting Smith v. Carpenter,
supra, 316 F.3d at 186.
"Indeed, in most cases, the actual
medical consequences that flow from the alleged denial of care
will be highly relevant to the question of whether the denial of
treatment subjected the prisoner to a significant risk of harm."
Smith v. Carpenter, supra, 316 F.3d at 187.
To satisfy the subjective prong, a plaintiff must show
that "the prison official was aware of, and consciously disregarded, the prisoner's medical condition."
Hernandez v. Goord,
02 Civ. 1704 (DAB), 2006 WL 2109432 at *6 (S.D.N.Y. July 28,
2006) (Batts, D.J.), citing Chance v. Armstrong, supra, 143 F.3d
at 703.
"[I]n certain instances, a physician may be deliberately
indifferent if he or she consciously chooses 'an easier and less
efficacious' treatment plan."
F.3d at 703.
Chance v. Armstrong, supra, 143
"[M]ere medical malpractice is not tantamount to
25
deliberate indifference, but it may rise to the level of deliberate indifference when it involves culpable recklessness, i.e., an
act or a failure to act . . . that evinces a conscious disregard
of a substantial risk of serious harm."
Cuoco v. Moritsugu,
supra, 222 F.3d at 107 (internal quotation marks omitted).
Plaintiff alleges that he suffered numbness, throbbing,
and "tremendous pain" in his hand from the electric shock (Am.
Compl. 17-18).
The physician who saw plaintiff that evening, Dr.
Pravin Ranjan, described the injury as first degree burns on the
ring and middle fingers of his right hand (Am. Compl. 25).
Plaintiff alleges that his wounds were dressed, and that he was
prescribed Motrin for his pain and Silvadene to treat his burns
(Am. Compl. 18).
A first degree burn does not ordinarily constitute an
urgent medical condition or one likely to produce death, degeneration, or extreme pain.
Rather, first degree burn, unlike more
serious second or third degree burns, is one that creates a mild
redness in the skin but without blistering or any necrosis of the
skin or surrounding tissue.
The Sloane-Doreland Annotated
Medical-Legal Dictionary, 102 (1987); see also Johnson v.
Havener, 534 F.2d 1232, 1233 (6th Cir. 1976) (quoting a physician's description of a first degree burn as "one which merely
produces a redness of the skin, similar to sunburn").
26
Plain-
tiff's description of the burn he suffered is consistent with the
symptoms of a burn in the first degree:
pain and discomfort on a
small area of his body, but no blistering or long term scarring.
Courts have often rejected burns of the magnitude suffered by
plaintiff as insufficiently serious to satisfy the objective
prong of the deliberate indifference standard where, as here,
they are treated within hours of the injury.
See, e.g., Cole v.
Fischer, No. 08 CV 512, 2009 WL 3734343 at *4 (W.D.N.Y. Nov. 4,
2009), aff'd, 416 F. App'x 111 (2d Cir. 2011) (finding that
resulting back pain from second decree burns did not constitute a
sufficiently serious injury); Pressley v. Green, 02 Civ. 5261
(NRB), 2004 WL 2978279 at *4 (S.D.N.Y. Dec. 21, 2004) (Buchwald,
D.J.)(granting summary judgment upon finding that plaintiff's
second degree burns to the chest and associated blistering did
not constitute a sufficiently serious injury).
But cf. Walker v.
Vargas, 11 Civ. 9034 (ER), 2013 WL 4792765 at *8 (S.D.N.Y. Aug.
26, 2013) (Ramos, D.J.), citing Paradis v. Blair, 1:07-CV-94,
2007 WL 3223222 at *2 (D. Vt. Oct. 29, 2007).
Moreover, plain-
tiff does not allege that his burns developed signs of infection
or other complications, requiring more extensive medical treatment.
Smith v. Carpenter, supra, 316 F.3d at 186.
Plaintiff has
not alleged any facts that suggest that his burns are so debilitating that the failure to treat them subjected him to a signifi27
cant risk of harm.
Thus, the amended complaint fails to allege a
sufficiently serious medical condition.
Even if I assume that the allegations in the amended
complaint satisfy the objective prong, they do not provide a
factual basis to conclude that defendants were aware of, and
consciously disregarded plaintiff's condition.
Plaintiff states
that there were delays in his initial treatment and follow-up
appointments and that the doctor who initially treated him was
hostile (Am. Compl. 17-18, 20).
He also complains that he was
denied bandages and Silvadene at his follow-up appointment (Am.
Compl. 20).
Plaintiff's own allegations show that any delay was
minor; the amended complaint alleges, at best, a delay of 90
minutes before the initial treatment (Am. Compl. 17).
Even if
this delay was medically significant, allegations of delay alone
do not rise to the level of recklessness.
James v. Correct Care
Solutions, 13 Civ. 0019 (NSR), 2013 WL 5730176 at *6 (S.D.N.Y.
Oct. 21, 2013) (Roman, D.J.).
Second, plaintiff's allegation that he did not receive
the follow-up treatment that he wanted shows, at best, noncognizable malpractice.
Dean v. Coughlin, 804 F.2d 207, 215 (2d
Cir. 1986); Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151
F. Supp. 2d 303, 312 (S.D.N.Y. 2001) (McMahon, D.J.)
28
("[D]isagreements over medications, diagnostic techniques (e.g.,
the need for X-rays), forms of treatment, or the need for specialists or the timing of their intervention, are not adequate
grounds for a Section 1983 claim.").
The allegations here do not
demonstrate that defendants acted with deliberate indifference.
Because plaintiff's claims do not "raise a right to
relief above a speculative level," he has failed to state a
claim.
Bell Atl. Corp. v. Twombly, supra, 550 U.S. 555 (citation
omitted).
Therefore, I respectfully recommend that the City's
motion to dismiss be granted.
C.
Plaintiff's Claims Against
the Individual Defendants
Finally, I note that the individual defendants identified by plaintiff's amended complaint -- Captains Banks, Presley,
Querin and Smith, Deputy (Warden) Stutes, Corrections Officers
Abrams, Chuck, Durrant, Ruiz, Lumina and Lopez and a Dr.
Rosenthal -- were never served.5
If this report and recommenda-
tion is adopted, the individual defendants would be the only
defendants left in the case.
5
Docket Item 29 docket incorrectly states that plaintiff
returned executed summons' as to Banks, Presley and Durrant. The
returned summons' in the case file, however, show that they were
unexecuted (See Docket Item 29).
29
The deficiencies in the amended complaint discussed
above apply with equal for to all defendants.
Plaintiff's
amended complaint does not sufficiently set forth facts from
which a court can reasonably infer that any defendant was deliberately indifferent.
Where, as here, the substantive flaws in
plaintiff's complaint warrant dismissal as to the unserved
defendants and moving defendants alike, dismissal with prejudice
for the reasons raised by a moving defendant, rather than a
dismissal pursuant to Fed.R.Civ.P. 4(m), is the more prudent
course of action.
See McCoy v. Goord, 255 F. Supp. 2d 233, 263
(S.D.N.Y. 2003) (Chin, D.J.) (declining to address whether claims
against unserved defendants should be dismissed pursuant to Rule
4(m) where plaintiff failed to exhaust his administrative remedies under the PLRA); see also Cuello v. Lindsay, 09 Civ. 4525
(KAM)(MDG), 2011 WL 1134711 at *1 n.2 (E.D.N.Y. Mar. 25, 2011).
Accordingly, and for the reasons set forth in section
III.B above, I respectfully recommend that plaintiff's claims
against the individual defendants also be dismissed with prejudice.
IV.
Conclusion
For all the foregoing reasons, I respectfully recommend
that the City's motion to dismiss (Docket Item 43) be granted and
30
that plaintiff's complaint be dismissed with prejudice as to all
defendants.
V.
Objections
Pursuant to 28 U.S.C. § 636(b)(1)(C)) and Rule 72(b) of
the Federal Rules of Civil Procedure, the parties shall have
fourteen (14) days from receipt of this Report to file written
objections.
See also Fed.R.Civ.P. 6(a).
Such objections (and
responses thereto) shall be filed with the Clerk of the Court,
with courtesy copies delivered to the Chambers of the Honorable
Lewis A. Kaplan, United States District Judge, 500 Pearl Street,
Room 2240, and to the Chambers of the undersigned, 500 Pearl
Street, Room 750, New York, New York 10007.
Any requests for an
extension of time for filing objections must be directed to Judge
Kaplan.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT
IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW.
Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); IUE AFL-CIO Pension
Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v.
Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair
31
Ltd'
l
838 F.2d 55
1
57-59 (2d Cir. 1988); McCarthy v. Manson
F.2d 234 1 237-38 (2d Cir. 1983)
Dated:
I
714
(per curiam).
New York New York
January 141 2014
I
Respectfully submitted
l
HENRYPI
United States Magistrate Judge
Copies mailed to:
Sidney Calhoun 6
DIN 10-A-1812
Sing Sing Correctional Facility
354 Hunter Street
Ossining New York 10562
l
Carolyn E. Kruk
Gloria M. Yi
New York City Law Department
100 Church Street
New York New York 10007
I
6As noted above plaintiff was released from custody on June
2013 and the address set forth above is the only address
plaintiff has provided to the Court.
I
51
32
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