Yefimova v. Brookdall Hospital

Filing 10

OPINION AND ORDER: For the reasons stated herein, the Court adopts the Report in full as to all of the plaintiffs listed above except Langston and Straker. Those 61 plaintiffs complaints are hereby DISMISSED with leave to file an amended complaint. T he Clerk of Court is directed to terminate any motion to dismiss pending in the cases listed above, and to close all of the cases except Nos. 12 Civ. 4961 and 12 Civ. 5155. The cases may be reopened without prejudice if a plaintiff files an amended c omplaint within 45 days. The Court accepts for filing Langston and Straker's amended complaints. The City's motion to dismiss-No. 12 Civ. 4961 (PAE)(JCF), Dkt. 19; No. 12 Civ. 5155 (PAE)(JCF), Dkt. 24-is denied as moot. Defendants are direc ted to respond to the two amended complaint. Finally, the Clerk of Court is respectfully directed to serve this Opinion and Order on each of the plaintiffs named in the caption at his address of record. re: (21 in 1:12-cv-04671-PAE-JCF) MOTION to Di smiss. filed by City of New York, (19 in 1:12-cv-04630-PAE-JCF) MOTION to Dismiss. filed by City of New York, (18 in 1:12-cv-04346-PAE-JCF) MOTION to Dismiss. filed by City of New York, (17 in 1:12-cv-04394-PAE-JCF) MOTION to Dismiss. filed by City o f New York, (26 in 1:12-cv-04302-PAE-JCF) MOTION to Dismiss. filed by City of New York, (17 in 1:12-cv-04306-PAE-JCF) MOTION to Dismiss. filed by City of New York, (19 in 1:12-cv-04532-PAE-JCF) MOTION to Dismiss. filed by City of New York, (16 in 1:1 2-cv-04275-PAE-JCF) MOTION to Dismiss. filed by City of New York, (17 in 1:12-cv-04457-PAE-JCF) MOTION to Dismiss. filed by City of New York, (23 in 1:12-cv-04638-PAE-JCF) MOTION to Dismiss. filed by City of New York, (16 in 1:12-cv-04382-PAE-JCF) MO TION to Dismiss. filed by City of New York, (24 in 1:12-cv-04266-PAE-JCF) MOTION to Dismiss. filed by City of New York, (18 in 1:12-cv-04634-PAE-JCF) MOTION to Dismiss. filed by City of New York, (18 in 1:12-cv-04347-PAE-JCF) MOTION to Dismiss. filed by City of New York, (17 in 1:12-cv-04670-PAE-JCF) MOTION to Dismiss. filed by City of New York, (16 in 1:12-cv-04274-PAE-JCF) MOTION to Dismiss. filed by City of New York, (17 in 1:12-cv-04698-PAE-JCF) MOTION to Dismiss. filed by City of New York, (19 in 1:12-cv-04517-PAE-JCF) MOTION to Dismiss. filed by City of New York, (17 in 1:12-cv-04383-PAE-JCF) MOTION to Dismiss. filed by City of New York, (27 in 1:12-cv-04694-PAE-JCF) MOTION to Dismiss. filed by City of New York, (18 in 1:12-cv-04396-P AE-JCF) MOTION to Dismiss. filed by City of New York, (17 in 1:12-cv-04299-PAE-JCF) MOTION to Dismiss. filed by City of New York, (19 in 1:12-cv-04533-PAE-JCF) MOTION to Dismiss. filed by City of New York, (8 in 1:12-cv-04207-LAP) MOTION pursuant to Rule 60(b). filed by Lyubov Yefimova, (17 in 1:12-cv-04524-PAE-JCF) MOTION to Dismiss. filed by City of New York, (18 in 1:12-cv-04523-PAE-JCF) MOTION to Dismiss. filed by City of New York. (Signed by Judge Paul A. Engelmayer on 2/11/2013) (ago).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
NORMAN S. HOWARD, PATRICK S. WATSON,
:
BLAKE WINGATE, DARREN STATON, NAVARRO :
JOHNSON, CHRISTIAN T. MARTINEZ, ISLIME
:
DUVIVIER, FRANCISCO FERREIRA, JOSEPH
:
OPPERISANO, WINSTON COWELL, ROGER SMITH, :
JOHN ENGLAND, CALVIN ELLIS, DARREN MACK, :
ALEX WILSON, MOSES SUAREZ, ONETT D. BROWN,:
HIRAM FELICIANO, GLENN CAMPBELL,
:
FRANCISCO AMADOR, SHASHKOV KONSTANTIN, :
WILLIAM VIELMAN, RALPHIE E. HAYES, ANDRE :
LIVINGSTON WILLIAMS, FREDERICK ROBERSON, :
WAYNE SULLIVAN, RAYMOND L. EDWARDS,
:
DEMETRIUS LOVING, MIKE HOLMES, ROBERT
:
FLEMING, DAVID SOTO, WILLIE VEGA, TROY
:
VALENTINE, ITTIAH MOGAI, ARTHUR STEWART, :
ROBERT DRAGOTI, ERNEST LANGSTON,
:
:
ANTHONY WHITE, ANGEL ESPADA, ROBERT
JOHNSON, REGINALD MILTON, RICHARD
:
:
MARTINEZ, JR., RICHARD WEBB, KENDALL
HAYES, MICHAEL STRAKER, NESTOR SANCHEZ, :
DAMILOLA ANIMASHAUN, ARTHUR JACK, WILLIE :
:
BOWMAN, FRANK TRIFILIO, JASON WILLIAMS,
:
BRANAN BOSTON, JOSE VAZQUEZ, RAHEEM
WATSON, JAMAL ARMSTEAD, HOWARD POWELL, :
GEORGE ETIENNE, RAYMOND MAXWELL, ALAN :
:
PEREZ, RASHEEN EVERETT, ANTHONY CRUZ,
:
ANTHONY PINDER, and BENNY DAVIS,
:
Plaintiffs,
:
-v:
:
:
CITY OF NEW YORK et al.,
:
:
Defendants.
:
:
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12cv4069
12cv4080
12cv4169
12cv4170
12cv4266
12cv4274
12cv4275
12cv4299
12cv4302
12cv4306
12cv4307
12cv4346
12cv4347
12cv4382
12cv4383
12cv4393
12cv4394
12cv4396
12cv4457
12cv4517
12cv4523
12cv4524
12cv4532
12cv4533
12cv4630
12cv4634
12cv4638
12cv4670
12cv4671
12cv4694
12cv4698

12cv4699
12cv4700
12cv4803
12cv4813
12cv4896
12cv4961
12cv5127
12cv5128
12cv5129
12cv5131
12cv5132
12cv5133
12cv5134
12cv5155
12cv5253
12cv5402
12cv5404
12cv5416
12cv5517
12cv5520
12cv5668
12cv5681
12cv5687
12cv5691
12cv5695
12cv5760
12cv5768
12cv5856
12cv5867
12cv5868
12cv5870
12cv5872

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:
Before the Court is the December 20, 2012 Report and Recommendation of Magistrate
Judge James C. Francis IV, recommending that the Court dismiss plaintiffs’ complaints for
failure to state a claim (the “Report”). For the reasons that follow, the Court adopts the Report in
full as to all plaintiffs.
I.

Background
The 63 pro se plaintiffs identified above bring similar lawsuits pursuant to 42 U.S.C.

§ 1983 against the City of New York (the “City”), Correction Commissioner Dora B. Schriro,
Mayor Michael Bloomberg, and Dr. Jean Richards of Corizon (a correctional healthcare services
provider). The plaintiffs, who are or were inmates or detainees in the custody of the New York
City Department of Correction at the Anna M. Kross Center on Rikers Island (“AMKC”), allege
violations of their Eighth Amendment rights and seek injunctive relief as well as compensatory
and punitive damages. They allege that they have not been provided with proper beds, which has
caused lower back, neck, and leg pain, as well as emotional distress. See Report 5 (summarizing
claims).
On August 27, 2012, the City moved to dismiss the complaints pursuant to Federal Rule
of Civil Procedure 12(b)(6). See, e.g., No. 12 Civ. 4069 (PAE)(JCF), Dkt. 16–18. Only one of
the 63 plaintiffs—Raheem Watson— opposed the motion to dismiss. See No. 12 Civ. 5687, Dkt.
13. On December 20, 2012, Judge Francis issued the Report, recommending that the City’s
motion to dismiss the complaints be granted because all 63 complaints failed to state a claim on
which relief could be granted. See, e.g., No. 12 Civ. 4069 (PAE)(JCF), Dkt. 22. The deadline
for plaintiffs to file objections to the Report was January 3, 2012. None of the 63 plaintiffs filed
objections. Two filed amended complaints.

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II.

Discussion
A. Standard of Review
In reviewing a Report and Recommendation, a district court “may accept, reject, or

modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1)(C). To accept those portions of the report to which no timely objection has
been made, “a district court need only satisfy itself that there is no clear error on the face of the
record.” Carlson v. Dep’t of Justice, No. 10 Civ. 5149 (PAE)(KNF), 2012 WL 928124, at *1
(S.D.N.Y. Mar. 19, 2012) (citation omitted); see also Wilds v. United Parcel Serv., 262 F. Supp.
2d 163, 169 (S.D.N.Y. 2003).
B. Non-Objecting Plaintiffs
Because none of the 63 plaintiffs here have submitted objections to the Report, a review
for clear error is appropriate. Careful review of the Report reveals no facial error in its
conclusions; the Report is therefore adopted in its entirety. Because the Report explicitly states
that “[f]ailure to file timely objections will preclude appellate review,” Report 25, these plaintiffs
failure to object operates as a waiver of appellate review. See Caidor v. Onondaga Cnty., 517
F.3d 601, 604 (2d Cir. 2008) (citing Small v. Sec’y of Health & Human Servs., 892 F.2d 15, 16
(2d Cir. 1989)).
The Court emphasizes that in adopting the Report, it is also adopting Judge Francis’s
recommendation that plaintiffs be granted permission to amend their complaints to state a claim,
if the facts so permit, of an Eighth Amendment violation. See Report 23–24. To do so, a
plaintiff must allege that “(1) he had a pre-existing medical condition requiring a special bed to
protect against serious damage to his future health; (2) he made that medical condition known to
the prison officials; (3) he requested a special bed to accommodate such medical condition; and

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(4) his request was denied by an ‘official [who knew] of and disregard[ed] an excessive risk to
[the plaintiff’s] health or safety.’” Id. at 24 (quoting Phelps v. Kapnolas, 308 F.3d 180, 186 (2d
Cir. 2002)). Plaintiffs may file, with the Pro Se Office, an amended complaint that plausibly
makes out the elements of a constitutional violation. 1 Plaintiffs are advised that any such
complaint, to be viable, must allege the elements of municipal liability or the personal
involvement of the individual named defendant(s). The requirements to adequately plead such
claims are set out in Judge Francis’s Report. See Report 21–23.
C. Amended Complaints
Two plaintiffs, Langston and Straker, have already filed amended complaints in response
to the Report. See No. 12 Civ. 4961 (PAE)(JCF), Dkt. 18 (“Langston Am. Compl.”); No. 12
Civ. 5155 (PAE)(JCF), Dkt. 27 (“Straker Am. Compl.”). Because the Court adopts the Report
and because the Report allowed plaintiffs a final opportunity to amend their pleadings, the Court
accepts these amended complaints for filing.
CONCLUSION
For the reasons stated herein, the Court adopts the Report in full as to all of the plaintiffs
listed above except Langston and Straker. Those 61 plaintiffs’ complaints are hereby
DISMISSED with leave to file an amended complaint. The Clerk of Court is directed to
terminate any motion to dismiss pending in the cases listed above, and to close all of the cases

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The Court notes that in 13 of these cases—case numbers 12 Civ. 4457, 12 Civ. 4532, 12 Civ.
4638, 12 Civ. 4700, 12 Civ. 4961, 12 Civ. 5127, 12 Civ. 5129, 12 Civ. 5404, 12 Civ. 5668, 12
Civ. 5681, 12 Civ. 5687, 12 Civ. 5691, and 12 Civ. 5872—there is no record on ECF of whether
the Report was, in fact, mailed to the plaintiff. The Court therefore is constrained to assume that
such a mailing did not occur. Because all 63 plaintiffs have the opportunity to amend their
complaint in response to this Opinion so as to properly allege a constitutional claim, these 13
plaintiffs were not prejudiced by lack of notice of the Report.
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except Nos. 12 Civ. 4961 and 12 Civ. 5155. The cases may be reopened without prejudice if a
plaintiff files an amended complaint within 45 days.
The Court accepts for filing Langston and Straker's amended complaints. The City's
motion to dismiss- No. 12 Civ. 4961 (PAE)(JCF), Dkt. 19; No. 12 Civ. 5155 (PAE)(JCF), Dkt.
24- is denied as moot. Defendants are directed to respond to the two amended complaint.
Finally, the Clerk of Court is respectfully directed to serve this Opinion and Order on
each of the plaintiffs named in the caption at his address of record.

SO ORDERED.

f~A,~
Paul A. Engelmayer
United States District Judge
Dated: February 11,2013
New York, New York

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