Johnson v. Warden-OBCC-CPSU et al

Filing 13

MEMORANDUM OPINION AND ORDER: The plaintiff should confirm his address for the Court by June 7, 2012. If the plaintiff fails to confirm his address by that, the plaintiff's case may be dismissed without prejudice for failure to prosecute. The defendant's time to move or answer is stayed until June 21, 2012. (Signed by Judge John G. Koeltl on 5/8/2012) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
RICHARD JOHNSON,
Plaintiff,
- against -

12 Civ. 1631 (JGK)
MEMORANDUM OPINION AND
ORDER

WARDEN-OBCC-CPSU, ET AL.,
Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The Court has received the attached letter, which it
forwards to the Plaintiff.
The defendant asserts that the plaintiff is no longer
incarcerated, and that the plaintiff has failed to update the
Court or the defendant with his contact information.
“The case cannot proceed without a current address for the
plaintiff and the failure to maintain such an address with the
Court is a ground for failure to prosecute.”

Laney v. Ramirez,

No. 10 Civ. 9063, 2011 WL 6594491, at *1 (S.D.N.Y. Dec. 22,
2011) (collecting cases); see generally LeSane v. Hall's Sec.
Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (“[I]t is
unquestioned that Rule 41(b) [of the Federal Rules of Civil
Procedure] also gives the district court authority to dismiss a
plaintiff's case . . . for failure to prosecute.”).

The docket

sheet indicates that the plaintiff has received mail at the
Ulster Correctional Facility, 750 Berme Road, P.O. Box 800,
Napanoch, NY 12458.

The plaintiff should confirm his address for the Court by
June 7, 2012.

If the plaintiff fails to confirm his address by

that, the plaintiff's case may be dismissed without prejudice
for failure to prosecute.
The defendant's time to move or answer is stayed until June
21, 2012.

SO ORDERED.
Dated:

New York, New York
May 8, 2011
John G. Koeltl
States District Judge

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THE CITY OF NEW YORK
MICHAEL A. CARDOZO

JEFFREY DAJliTO'f'I'ITZ
pllone; [phone]
£ax: [phone]
(not (Of service)

LAW DEPARTMENT

Corp01'ariOI'l COf.msei

100 CHURCH STREET
NEW YORK, NY 10007

May 7, 2012
'-=~~~~~~~=-

VIA FAX
Hon. John G. Koeltl
United States District Court
Southern District ofNew York
500 Pearl Street
New York) New York 10007

R~:OIZOl;D

CHAMBERS OF

JOHN G. KOELTL

U.S.D.

Re: JOMson v. Warden - OBCC - CPSU
12 Civ. 1631 (JGK)
Dear Judge Koeltl:

This office represents defendants Warden OBCC and Deputy Warden Ramos l in
this action in which Plaintiff, a former inmate of the New York City Deparb:nent of Correction
("DOC"), alleges that the facility Warden, a Deputy Warden and the legal coordinator violated

his constitutional rights because (i) he was not provided certain books from the jail's law library,
(ii) "social services" has contacted him only once and failed to follow-up with sick family
members, (iii) his grievances were not addressed, (iv) two of Iris letters were not mailed, and he
was not provided free stationary and envelopes, (v) he did not receive hot food, (vi) only 50
razors were issued each week for 100 inmates, (vii) no announcements were made for
medical/sick call or for "recreation run." Defendants Warden OBCC and DW Ramos ","rite to
seek a pre-motion conference with respect to their anticipated motion to dismiss.
On April 9, 2012, Plaintiff was transferred to State custody and subsequently was
released from incarceration. Plaintiff, however, has not yet notified the Court or Defendants of
his current location. Should he desire to proceed with this action, Defendants anticipate moving
to dismiss the Complaint on the following grounds: (i) Plaintiff did not pursue all the required
l~vels of the DOC grievance procedure and therefore failed to exhaust his administrative
I Defendant Riddick has not yet been served but likely will be represented by this office should
she so request.

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remedies, (ii) Plaintiff cannot bring suit for conditions to which he was not personally subjected,
(iii) Plaintiff failed to allege the personal involvement of the Warden and Deputy Warden
Ramos, (iv) Plaintiff fails to state any cognizable constitutional claim and (v) Plaintiff is not
entitled to injunctive or compensatory relief. Each of these is discussed below:
1.

Failure to Exhaust

It is well-settled that a plaintiff must pursue all the required levels of DOC's
grievance procedure before maintaining suit. Plaintiff here alleges that, although he filed a
grievance, he received no response. The grievance procedure, however, clearly requires an
inmate who has not received a response to seek a hearing. Indeed, courts have noted that the
City DOC's grievance procedure, unlike the State DOC's procedures, explicitly places the
burden on the inmate to request a formal hearing if he has not received a response to his
grievance within five days of filing the grievance. See Rivera v. Anna M. Kross Center, No. 10
Civ. 8696, 2012 U.S. Dist. tEXIS 15126, at *14~15 (S.D.N.Y. Feb. 7, 2012) (distinguishing
between City and State procedures). Further administrative steps also are described. See Piper
v. City of N.Y., No. 02 Civ. 1708, 2004 U.S. Dist LEXIS 29214, at *8 (S.D.N.Y. Mar. 17,
2004). While Plaintiff may have sent a letter to the Board of Correction (the last step in the
process), he did so on the very date his Complaint is dated, and without ftrst proceeding through
the interim steps. Accordingly, he failed to exhaust, and his Complaint should therefore be
dismissed. Marcello v Dep't. of Corrections, No. 07 Civ. 9665,2008 U.S. Dist. LEXIS 60895, at
"'5 (S.D.N.Y. July 30, 2008) (dismissing complaint for failure to exhaust where it appeared from
the face of the complaint that ;'plaintiffs abandoned the prescribed grievance procedures after
their initial grievance fonns failed to produce any results").
2.

Lack of Standing

Although the Complaint includes a litany of complaints, there is no specific
allegation that· Plaintiff was deprived of a razor, or suffered any conSequence of not being
advised of medical/sick call or "recreation run. n In addition, Plaintiff also appears to be
asserting a claim on behalf of his family members. when he alleges that "social services" failed
to follow up with sick family members. Plaintiff, however, has no standing to assert claims on
behalf of others, or to seek relief on their behalf. See Akto Investicni Spolecnost v. A.B. Watley,
2003 U.S. Dist. LEXIS 3478 (S.D.N.Y. Mar. 12, 2003) ("A party must 'assert his 0'Wll legal
rights and interests, and cannot rest his claim to relief on the legal rights or interests of third
parties."') (quoting Warth v. Seldin. 422 U.S. 490, 499 (1975).
3.

No personal involvement of Warden

osec or Deputy Warden Ramos

Where a plaintiff fails to allege how a particular defendant was personally
involved in any of the action or inaction that led to a violation of the plaintiff s constitutional or
federal rights) dismissal as to that defendant is warranted. Hemmings v. Gorczvk, 134 F .3d 104,
109 n.4 (2d Crr. 1998). Here, the Complaint contains absolutely no allegations against Deputy
Warden Ramos, warranting dismissal as against him. CarrasQuillo v. City of N.Y., 324 F. Supp.
2d 428, 435 (S.D.N.Y. 2004) (dismissing complaint against individuals who were named as
defendants but not mentioned at all in body of complaint); McCoy v. Goord, 255 F. Supp. 2d
233,258 (S.D.N.Y. 2003) ("It is well-settled that where the complaint names a defendant in the

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caption but contains no allegations indicating how the defendant violated the law or injured the
plaintiff, a motion to dismiss the complaint in regard to that defendant should be granted.")
(internal quotations omitted).
Additionally, the only allegation against defendant Warden OBCC is that this
defendant was "notified" of the conditions of which Plaintiff complains. Such a bare allegation,
however, is insufficient to demonstrate that this Defendant was personally involved in the
alleged constitutional deprivations, as it contains no facts demonstrating his involvement in the
complained-of conduct. See Garcia v. Watts, No. 08 Civ. 7778,2009 U.s. Dist. LEXIS 84697,
at *51~52 (S.D.N.Y. Aug. 27, 2009) (compiling lengthy case law); Johnson v. Wright, 234 F.
Supp.2d 352, 363 (S.D.N.Y. 2002)( "[I]1 is well-established that an allegation that an official
ignored a prisoner's letter of protest and request for an investigation of allegations made therein
is insufficient to hold that official liable for the alleged violations." (internal quotation mades
omitted, collecting cases).2 Accordingly, the Complaint also should be dismissed as against this
defendant. Collins v. Goord, 438 F. Supp. 2d 399, 420 (S.D.N.Y. 2006) (dismissing plaintiff's
claims against defendant Department of Correction Commissioner because plaintiff did not
sufficiently allege personal involvement).
4.

No constitutional violation

Plaintiff's other allegations fail to state a constitutional violation. First, Plaintiff
claims he was not provided books he requested from the law library, apparently contending that
this deprived him of access to the courts. However, he has not alleged any facts showing that
defendants took any action to hinder him from pursuing a valid legal claim, or actually interfered
with his access to courts or prejudiced an existing action. See Herrera v. Scully, 815 F. Supp.
713, 725 (S.D.N.Y. 1993) (emphasis added, citations omitted); Davis v. Goord, 320 F.3d 346,
351 (2d Cir. 2003). As Plaintiff has not alleged any facfi demonstrating that he suffered any
actual injury, his claim should be dismissed. Lewis v. Casey, 518 U.S. 343, 353 (1996) (plaintiff
must "show that a non~fri'Volous legal claim was frustrated or impeded due to the actions of
prison officials" in order to survive a motion to dismiss).
Plaintiff's allegations concerning the conditions of his confinement also fail. To
allege a constitutional violation based on these conditions, Plaintiff must allege both (i) that he
suffered an objectively serious deprivation and (ii) that officials who caused the harm, acted or
failed to act with a sufficiently culpable state of mind, i.e., with «deliberate indifference. to
inmate health or safety." Wilson v. Seiter, 501 U.S. 294,298 (1991); Phelps v. Kapnolas, 308
F 3d 180, 185 (2d Cir. 2002).
To satisfy the objective prong of his claim, Plaintiff must allege that he was
denied "the minimal civilized measure of life's necessities;' Rhodes v. Chapman, 452 U.S. 337,
346 (1981), including the "basic human needs') of "food, clothing, shelter, medical care and
reasonable safety." Helling v. McKinney, 509 U.S. 25,32 (1993) (internal citation and qUotation
Plaintiff's allegation that Defendants failed to address his grievances fails to state a claim for
this reason, as welL
.

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omitted). See Salahuddin v. Goord, 467 F.3d 263,279 (2d Cu. 2006), aff'd, 309 Fed. Appx. 535
(2d Cll. 2009). Plaintiff's allegations, howeverl faIl far short of meeting this standard.
Plaintiff's claim that his outgoing mail was not sent out on two occasions does not
give rise to a cognizable claim. Indeed, the Southern District recently dismissed a similar claim
finding it to be a de minimus deprivation. ~ee Edwards v. Hom, 2012 U.S. Dist, LEXIS 18424,
at'" 23-24 (S.D.N.Y. Feb. 14,2012), adopted, 2012 U.S. Dist LEXIS 30968 (S.D.N.Y. Mar 8,
2012). Plaintiffs claim that he received no hot food is similarly unavailing. See Leach v.
Duirain, 103 F. Supp.2d 542,547 (N.D.N.Y. 2000) (holding that denial of hot food to irunate for
two-month period as discipline for misconduct was not cruel and unusual punishment, absent
showing of nutritional inadequacy or inunediate danger to inmate's health and well-being).
Plaintiffs allegations with respect to the razors and no medicalfrecreational
announcements are sjmply too sparse to demonstrate a constitutional violation. Not only is there
no indication that Plaintiff hjmself was personal1y affected by these conditions, there is no
deSCription as to the nature of the deprivation, its duration or the consequences. The lack of
factual allegations is sufficient basis on which to dismiss the Complai11t See Locicero v.
O'Connell, 419 F. Supp. 2d 521, 525 (S.D.N.Y. 2006) (pro se litigants must allege facts
sufficient to indicate that they were deprived of a constitutional right). Thus, dismissal of a pro
se complaint is still appropriate where the plaintiff fails to alJege facts supporting his claim to
relief. Rodriguez: v. Wepin, 116 F.3d 62, 65 (2d Cir. 1997) (c~ting Conley v. Gibson) 355 U.S.
41,4546 (1957) ..
Plaintiff's claims, while perhaps disagreeable, do not constitute the denial of "the
minimal civilized measure of life's necessities." While Plaintiff may find these conditions to be
undesirable, they do not support a viable claim. See Rhodes v. Chapm~ 452 U.S. 337, 347
(1981) ("To the extent that such conditions are restrictive and even harsh, they are part of the
penalty that criminal offenders pay for their offenses against society.")
Moreover, Plaintiff's allegations do not satisfy the subjective prong of his claim,
which requires facts demonstrating that defendants "kn[ew] of and disregard[ed] an excessive
risk to inmate health or safety." Branham v Meachum, 77 F.3d 626,631 (20. Cir. 1996) (plaintiff
must show that prison official (quoting Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994),
cert. denied sub nom. Foote v. Hathaway, 513 U.S. 1154 (1995)). The Complaint should be
dismissed on this further basis
5. No injunctive or compensatory relief

In his Complaint, Plaintiff requests injunctive relief to "enforce a procedure that
will demand that i..n+nates confmed in CPSU at OBCe receive all mandated services." Complaint
at § V. However, although he has not so advised the Court, Plaintiff has been transferred out of
G.R.V.C (the facility in which the alleged deprivations took place) and, in fact, was transferred
to State custody on April 9, 2012 and subsequently released from custody. "It is settled in this
Circuit that a transfer from a prison facility moots an action for injunctive relief against the
transferring facility." Sweeper v. Taylor, 383 Fed. Appx. 81, 82 (2d Cir. 2010) (citing Prins v.
Coughlin, 76 F.3d 504, 506 (2d Cir. 1996) and Thompson v. Choinski, 525 F.3d 205, 209 (2d
Cir.2008). Thus, Plaintiff's claim for injunctive relief is moot.
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Plaintiff also is not entitled to compensatory damages. Section 1997e(e) of the
Prison Litigation Reform Act ("PLRA") provides that "[n]o Federal civil action may be brought
by a prisoner confined in a jail, prison
other correctional facility, for mental or emotional
injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. §
1997e(e). Here, however, Plaintiff seeks monetary damages ''for the mental anguish" he
endured. Complaint at § V. Nowhere, however, does Plaintiff allege that he incurred any
physical inJury.· In the absence of any physical injury, his claim for compensatory relief is
barred. See Wright v. Miller, 973 F. Supp. 390, 396 (S.D.N.Y. 1997) (holding that prisoners
could not recover damages for solely mental anguish under the PLRA).

or

Based on the foregoing, Defendants Warden OBCC and DW Ramos seek a pre­
motion conference to dismiss Plaintiffs Complaint. However, as Plaintiff has been released
from custody, Defendants respectfully request that no schedule be set until Plaintiff advises the
Court of his new address and thereby indicates his intention to pursue this action. Additionally,
as Defendants Warden OBCC and DW Ramos do not know Plaintiff's current location, we are
sending this letter to the address indicated on the docket and his last known State facility.

Thank you for your consideration of the foregoing.

cc: Richard Johnson

825-12-00511
NYC DOC -- AMKC
18-18 Hazen Street
East Ehnhurst, NY 11370
Richard Johnson (09-A-2284)
Ulster Correctional Facility
750 Benne Road
P.O. Box 800
Napanoch, New York 12458-0800

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