Martinez v. Schriro et al

Filing 57

MEMORANDUM OPINION AND ORDER re: 47 MOTION to Amend/Correct 20 30/60 Days Amended Complaint. filed by Johnny Martinez, 49 MOTION to identify John Doe defendants. filed by Johnny Martinez. For the reasons stated above, Defendants ' motion to dismiss is GRANTED, Plaintiff's motion for leave to file a second amended complaint is DENIED, and Plaintiff's motion for a Valentin order is DENIED as moot. The Clerk of Court is directed to terminate the motions at ECF Nos. 21, 47, and 49, mail a copy of this order to Plaintiff pro se, and close the case. (Signed by Judge Kimba M. Wood on 1/9/2017) (kgo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JOHNNY MARTINEZ,
Plaintiff,
-againstCOMMISSIONER DORA B. SCHRIRO, WARDEN
KATIE MULVEY, M.D.C., BRUNO, Maintenance
Worker M.D.C., BROWN, Grievance Supervisor M.D.C.,
CITY OF NEW YORK,

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: I 4 ( t 7-r I

I

14 Civ. 3965 (KMW) (RLE)

MEMORANDUM OPINION
AND ORDER

Defendants.
KIMBA M. WOOD, District Judge:
Plaintiff prose, Johnny Martinez, an inmate previously in the custody of the New York
City Department of Corrections ("DOC"), brings this action pursuant to 42 U.S.C. § 1983 against
the City of New York; Dora B. Schriro, former New York City Commissioner of Correction;
Katie Mulvey, Warden of the Manhattan Detention Center ("M.D.C."); Bruno, a maintenance
worker employed by M.D.C.; and Sean Brown, a grievance supervisor at the M.D.C.
(collectively, "Defendants"). ECF No. 20 at 1-2 ("Am. Compl."). Plaintiff alleges that, while in
custody at the M.D.C., he slipped and fell on a puddle of water caused by a leaking air
conditioning duct pipe and suffered extensive injuries to his head and back. Id. at 2-3.
Defendants move to dismiss the Amended Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). ECF No. 21. After Defendants' motion was fully submitted, Plaintiff
moved to file a second amended complaint, ECF No. 47, and sought an order, pursuant to

Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997), for assistance in identifying a "John Doe"
defendant identified in Plaintiffs proposed second amended complaint, ECF No. 49. For the
reasons stated below, Defendants' motion is GRANTED and Plaintiffs motions are DENIED.

I. BACKGROUND 1

On September 5, 2011, Plaintiff was walking to the showers of the M.D.C. housing unit
when he slipped and fell "with [g]reat [fJorce." Am. Compl. at 3. Plaintiff sustained injuries to
his head, which "split open" with a three-inch cut, and his lower back. Id. Plaintiff received
emergency medical treatment at Bellevue Hospital, and underwent physical therapy at the West
Facility on Rikers Island for nearly half a year. Id. Plaintiffs slip was caused by a puddle of
water from a leaking air duct pipe connected to the M.D.C. 's air conditioning ventilation system.
Id. at 4. The air duct piping had been leaking for some time, and corrections officers had made

several complaints about the leaking pipe and submitted work orders to replace it prior to
Plaintiffs injury. Id. Although Defendants were aware of the problem prior to Plaintiffs injury,
they took no steps to fix the leak. Id. at 5.
On September 9, 2011, Plaintiff filed a grievance about the DOC's failure to fix the
leaking pipe. Id. at 7-8 & Ex. A. Plaintiff never received a response to his grievance or an
acknowledgement that it was received, despite multiple requests to Defendant Brown, the
grievance supervisor. Id. at 9. To Plaintiffs knowledge, Defendant Brown did not conduct an
investigation into Plaintiffs grievance. Id. Plaintiff wrote to Defendant Brown to inquire about
the status of his grievance on October 10, 2011, id. Ex. B, and sent a notice of intention to file a
claim to the Corporation Counsel of the City of New York on November 4, 2011, id. Ex. C. The
City acknowledged receipt of Plaintiffs claim on November 15, 2011, and stated it would
investigate. Id. Ex. D. On April 15, 2013, Plaintiff wrote to the City to ask for an update about
the status of his claim and the investigation. Id. Ex. E.
1

The following facts are taken from the Amended Complaint and are assumed to be true for purposes of
Defendants' motion to dismiss. See Tellabs. Inc. v. Makar Issues & Rights. Ltd., 551 U.S. 308, 322 (2007); see also
Shipping Fin. Servs. Corp. v Drakos, 140 F.3d 129, 131 (2d Cir. 1998) ("When considering a motion to dismiss ...

for failure to :5tate a cause ofact10n, a court must accept as true all material factual allegations in the complaint.").
2

Plaintiff filed this action on May 21, 2014, ECF No. 2, and the Amended Complaint on
November 19, 2014, ECF No. 20. Defendants filed their motion to dismiss on December 4,
2014. ECF No. 21. After some delay, Plaintiff filed his opposition to Defendants' motion on
October 21, 2015. Pl. Opp., ECF No. 43. Plaintiff filed his motion seeking leave to file a second
amended complaint and his Valentin motion on August 1, 2016. ECF Nos. 47, 49. The case was
transferred to the undersigned on November 22, 2016.

II. LEGAL STANDARD
In order to survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient
factual allegations "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible "when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court accepts as
true all well-pleaded factual allegations and draws all reasonable inferences in favor of the nonmoving party. See Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010).
In construing complaints by plaintiffs proceeding prose, the Court applies a "more
flexible standard to evaluate their sufficiency than [it] would when reviewing a complaint
submitted by counsel." Lerman v. Bd. of Elections in New York, 232 F.3d 135, 140 (2d Cir.
2000); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("[A] prose complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers." (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The Court, therefore, is
obligated to construe prose pleadings with '"special solicitude,' interpreting the complaint to
raise the 'strongest [claims] that [it] suggest[s].'" Hill v. Curcione, 657 F.3d 116, 122 (2d Cir.

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2011) (alterations in original) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 47475 (2d Cir. 2006)).

III. DISCUSSION
Defendants cite a number of grounds on which Plaintiffs amended complaint should be
dismissed: (1) failure to exhaust administrative remedies; (2) failure to state a cognizable
constitutional claim for deliberate indifference; (3) failure to state a claim for municipal liability;
(4) failure to allege personal involvement of the individually named defendants; and (5) statute
oflimitations for state tort claims. Def. Mem. at 5-20, ECF No. 22. As discussed below, the
Court cannot conclude that none of the exceptions to the exhaustion requirement apply, and
cannot dismiss the Amended Complaint on that basis. However, the Court finds that Plaintiff
has failed to allege a § 1983 claim and that any state-law negligence claims are barred by the
statute oflimitations, and accordingly grants Defendants' motion.
A. Failure to Exhaust Administrative Remedies

Defendants argue that Plaintiff failed to exhaust his administrative remedies, as required
by the Prison Litigation Reform Act ("PLRA "), 42 U.S.C. § 1997e et seq. Def. Mem. at 5-10.
The DOC dictates procedures for filing a grievance that include a multi-step process, which is set
forth in the DOC's Inmate Grievance Resolution Program ('"IGRP"). 2 An inmate must exhaust
all steps before he may pursue litigation in federal court, including filing an administrative
appeal, even when he does not receive a response to his initial grievance. Tyler v. Argo, No. 14
Civ. 2049, 2014 WL 5374248, at *4 (S.D.N.Y. Oct. 10, 2014). Plaintiff admits that he failed to
exhaust administrative remedies. PL Opp. at 22.

2

The Court takes judicial notice of the IGRP, as courts regularly do in this district. See, e.g., Myers v. City of New
York, No. 11 Civ. 8525, 2012 WL 3776707, at *4 n.6 (S.D.N.Y. Aug. 29, 2012). The IGRP directive that governed
administrative exhaustion in this case is available on the DOC's website. See DOC, Directive 3375R-A (effective
March 13, 2008), http://www.nyc.gov/html/doc/downloads/pd£'3375R-A.pdf.

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However, certain caveats apply: "when (1) administrative remedies are not available to
the prisoner; (2) defendants have either waived the defense of failure to exhaust or acted in such
as [sic] way as to estop them from raising the defense; or (3) special circumstances, such as a
reasonable misunderstanding of the grievance procedures, justify the prisoner's failure to comply
with the exhaustion requirement." Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir.
2006) (citing Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004)). Because nonexhaustion
is an affirmative defense, "a plaintiff is not required to plead or demonstrate exhaustion in a
complaint." Seymore v. City of New York, No. 12 Civ. 6870, 2014 WL 1259563, at *3 (S.D.N.Y.
Mar. 26, 2014) (citing Jones v. Bock, 549 U.S. 199, 212 (2007)). "It follows that a claim should
be dismissed for failure to exhaust only if 'nonexhaustion is clear from the face of the complaint,
and none of the exceptions outlined by the Second Circuit are germane."' Henning v. N. Y. C.

Dep 't of Correction, No. 14 Civ. 9798, 2016 WL 297725, at *2 (S.D.N.Y. Jan. 22, 2016)
(quoting Lovick v. Schriro, No. 12 Civ. 7419, 2014 WL 3778184, at *4 (S.D.N.Y. July 25,
2014)).
In his opposition to Defendants' motion to dismiss, Plaintiff states that he does not have
access to the IGRP directive or an Internet connection with which to view it, Pl. Opp. at 23, and
that prison officials "intentionally, deliberately and maliciously prevented [him] from exhausting
his administrative remedies," id. at 27. Although these allegations appear in Plaintiffs
opposition papers, rather than on the face of the complaint, the Court, construing prose
pleadings liberally, "may rely on any opposition papers in assessing the legal sufficiency of the
plaintiff's claims." Henning, 2016 WL 297725, at *3 (quoting Rosado v. Herard, No. 12 Civ.
8943, 2013 WL 6170631, at *2 (S.D.N.Y. Nov. 25, 2013)). Taking these allegations as true, the
Court cannot conclude that "nonexhaustion is clear from the face of the complaint, and none of

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the exceptions outlined by the Second Circuit are germane." Id. (quoting Lovick, 2014 WL
3778184, at *4).
B. Section 1983 Claims
In order to state a claim under § 1983, a plaintiff must show a deprivation of a right,
privilege, or immunity under the Constitution or federal statute, and that the deprivation occurred
under the color of state law. 42 U.S.C. § 1983; see West v. Atkins, 487 U.S. 42, 48 (1988);
Feingoldv. New York, 366 F.3d 138, 159 (2d Cir. 2004); Sykes v. James, 13 F.3d 515, 519 (2d

Cir. 1993). Section 1983 does not itself create any substantive rights but rather "provides only a
procedure for redress for the deprivation of rights established elsewhere." Sykes, 13 F.3d at 519
(citing City of Okla. City v. Tuttle, 471 U.S. 808, 816 (1985)). Here, Plaintiff alleges violations
of the First Amendment, related to Defendants' handling of Plaintiffs grievance, and the Eighth
Amendment, related to the leak that led to Plaintiffs slip and fall. See Am. Compl. at 6, 9. The
Court holds that neither allegation amounts to a deprivation of a constitutional right.
1. First Amendment
Plaintiff alleges that his rights were violated when Defendant Brown failed to follow
proper procedures regarding Plaintiffs grievance by "repeatedly disregard[ing] plaintiffs First
Amendment Right to seek Redress of Grievance and to petition the Court for redress of
grievance," which prevented Plaintiff from properly exhausting his administrative remedies.
Am. Compl. at 9. The First Amendment protects the right to meaningful access to the courts as
part of the right to petition the government for redress of grievances. Bill Johnson 's Rests.. Inc.
v. NLRB, 461 U.S. 731, 741 (1983). However, "inmate grievance programs created by state law

are not required by the Constitution and consequently allegations that prison officials violated
those procedures does not give rise to a cognizable § 1983 claim." Njasang Nji v. Heath, No. 13

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Civ. 200, 2013 WL 6250298, at *6 (S.D.N.Y. Dec. 2, 2013) (quoting Shell v. Brzezniak, 365 F.
Supp. 2d 362, 370 (W.D.N.Y. 2005)); see also, e.g., Mimms v. Carr, No. 09 Civ. 5740, 2011 WL
2360059, at *10 (E.D.N.Y. June 9, 2011) ("The First Amendment is not implicated, however,
where prison officials deny an inmate access to grievance procedures."), ajf'd, 548 F. App'x 29
(2d Cir. 2013); Torres v. Mazzuca, 246 F. Supp. 2d 334, 342 (S.D.N.Y. 2003) ("Prison grievance
procedures do not confer any substantive right upon an inmate .... "). Accordingly, "[c]ourts
regularly dismiss claims brought to remedy alleged violations of inmate grievance procedures."

Alsaifullah v. Furco, No. 12 Civ. 2907, 2013 WL 3972514, at *13 (S.D.N.Y. Aug. 2, 2013)
(alteration in original) (quoting Edwards v. Horn, 10 Civ. 6194, 2012 WL 473481, at *11
(S.D.N.Y. Feb. 14, 2012), report and recommendation adopted, 2012 WL 760172 (S.D.N.Y.
Mar. 8, 2012)). The Court holds that Plaintiffs claim that Defendant Brown mishandled
Plaintiffs grievance cannot, as a matter oflaw, support a§ 1983 claim. Therefore, Plaintiffs
First Amendment claims are dismissed with prejudice.
2. Eighth Amendment
Plaintiffs Eighth Amendment claims are for "Deliberate Indifference; Negligence;[]
Failure to Act; [and] Cruel & [Unusual] Punishment" related to the alleged hazardous condition
of confinement caused by the leaking air duct pipe. 3 Am. Com pl. at 6. "The conditions of a
prisoner's confinement can give rise to an Eighth Amendment violation." Phelps v. Kapnolas,
308 F.3d 180, 185 (2d Cir. 2002) (citing Farmer v. Brennan, 511 U.S. 825, 828 (1994)). "In
such cases, a prisoner may prevail only where he proves both an objective element-that the

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The Court assumes that Plaintiff is protected by the Eighth Amendment's prohibition of cruel and unusual
punishment, which protects sentenced prisoners, rather than the Fourteenth Amendment's due process protection,
which protects pre-trial detainees. The distmction, however, is immaterial here, because the two Constitutional
prov1s1ons afford the same protection from deliberate indifference. See, e.g., Caiozzo v. Koreman, 581 F.3d 63, 69
(2d Cir. 2009) ("Claims for deliberate indifference to a ... serious threat to the health or safety of a person in
custody should be analy.Gcd under the same standard irrespective of whether they are brou8ht under the Ei8hth or
Fourteenth Amendment.").

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prison officials' transgression was 'sufficiently serious'-and a subjective element-that the
officials acted, or omitted to act, with a 'sufficiently culpable state of mind,' i.e., with 'deliberate
indifference to inmate health or safety."' Id. (quoting Farmer, 511 U.S. at 834); see also, e.g.,

Garcia v. Fischer, No. 13 Civ. 8196, 2016 WL 297729, at *4 (S.D.N.Y. Jan. 22, 2016).
To satisfy the "objective'' element, "a plaintiff must show that 'the conditions, either
alone or in combination, pose an unreasonable risk of serious damage to [an inmate's] health,'
which can be satisfied if an inmate is deprived of 'basic human needs such as food, clothing,
medical care, and safe and sanitary living conditions."' Aikens v. Royce, No. 14 Civ. 663, 2016
WL 5720792, at *6 n.10 (S.D.N.Y. Sept. 30, 2016) (alteration in original) (quoting Walker v.

Schult, 717 F.3d 119, 125 (2d Cir. 2013)). "Ultimately, to establish the objective element of an
Eighth Amendment claim, a prisoner must prove that the conditions of his confinement violate
contemporary standards of decency." Phelps, 308 F.3d at 185. "[O]nlythose deprivations
denying 'the minimal civilized measure oflife's necessities,' are sufficiently grave to form the
basis of an Eighth Amendment violation." Wilson v. Seiter, 501U.S.294, 298 (1991) (citation
omitted) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)); see also Blyden v. Mancusi,
186 F.3d 252, 263 (2d Cir. 1999) ("Because society does not expect or intend prison conditions
to be comfortable, only extreme deprivations are sufficient to sustain a 'conditions-ofconfinement' claim." (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992))).
Under the "subjective" element, "a defendant '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."' Aikens, 2016 WL 5720792, at *6 n.10 (quoting Phelps, 308

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F.3d at 185). "A prison official may be found to have had a sufficiently culpable state of mind if
he participated directly in the alleged event, or learned of the inmate's complaint and failed to
remedy it, or created or permitted a policy that harmed the inmate, or acted with gross negligence
in managing subordinates." Id. (quoting Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001)).
Allegations of negligence by prison officials will not support a claim under the Eighth
Amendment. Edwards v. City of New York, No. 08 Civ. 05787, 2009 WL 2596595, at *2
(S.D.N.Y. Aug. 24, 2009) (citing County ofSacramento v. Lewis, 523 U.S. 833, 849 (1998);
Farmer, 511 U.S. at 836; Daniels v. Williams, 474 U.S. 327, 328 (1986)).
Plaintiffs Amended Complaint fails to satisfy the objective element. As courts in this
circuit have regularly found, wet floor conditions that cause a prisoner to slip and fall do not
constitute an Eighth Amendment violation. See, e.g., Martin v. City of New York, No. 11 Civ.
600, 2012 WL 1392648, at *9 (S.D.N.Y. Apr. 20, 2012) (dismissing complaint that alleged that
plaintiff slipped and fell on a wet floor while wearing ill-fitting shoes); Hawkins v. Nassau Cnty.
Corr. Facility, 781 F. Supp. 2d 107, 113 (E.D.N.Y. 2011) ("[T]he alleged water in the shower
area does not deprive plaintiff of a basic human need and, thus, cannot as a matter of law give
rise to a constitutional violation that can be brought under Section 1983."); Flowers v. City of
New York, 668 F. Supp. 2d 574, 578 (S.D.N.Y. 2009) ("Any claim against the City for the slip
and fall that resulted in plaintiffs ankle injury-a garden variety tort-is not cognizable under
Section 1983 ... .");Edwards, 2009 WL 2596595, at *2-3 (granting motion to dismiss where
plaintiff slipped and fell on wet hallway floor, and collecting cases); see also, e.g., Reynolds v.
Powell, 370 F.3d 1028, I 031 (10th Cir. 2004) (holding that plaintiffs slip and fall in prison
shower was not a sufficiently serious condition to state a § 1983 claim); LeMaire v. Maass. 12
F.3d 1444, 1457 (9th Cir. 1993) ("Even if the floors of the shower are slippery .. ., 'slippery

9

prison floors ... do not state even an arguable claim for cruel and unusual punishment."'
(quoting Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989))). Because Plaintiffs complaint
fails to allege a "sufficiently serious" deprivation, Wilson, 501 U.S. at 298, Plaintiffs Eighth
Amendment claims are dismissed with prejudice.
C. State Law Claims
Although the Amended Complaint does not state so explicitly, the Court reads it to also
state a tort claim against Defendants. See Am. Compl. at 6 (including "Negligence" as one of
Plaintiffs causes of action); Def. Mem. at 19 (addressing Plaintiffs state law claims); cf Hill,
657 F.3d at 122. However, the tort claims must be dismissed as untimely. Plaintiffs injury
occurred on September 5, 2011. Am. Compl. at 3. An action for personal injury against the City
of New York or its employees must be commenced within one year and ninety days after the
claim arose. N.Y. Gen. Mun. Law§ 50-i(l)(c). Indeed, Plaintiff was notified about the statute
of limitations in a letter from the City acknowledging his notice of intention to file a claim. See
Am. Com pl. Ex. D. Plaintiffs Complaint was filed May 21, 2014, ECF No. 2, over two years
after the incident, and is thus time-barred. See, e.g., Betts v. Rodriquez, No. 15 Civ. 3836, 2016
WL 7192088, at *6 (S.D.N.Y. Dec. 12, 2016).
D. Plaintiffs Motion to Amend and Request for a Valentin Order
Although Rule 15 of the Federal Rules of Civil Procedure provides that leave to amend a
pleading should be freely granted "when justice so requires," Fed. R. Civ. P. 15(a)(2), such a
motion may be denied if the moving party has unduly delayed or acted in bad faith, the opposing
party will be unfairly prejudiced ifleave is granted, or the proposed amendment is futile, see

Foman v. Davis, 371 U.S. 178, 182 (1962). As discussed above, it is clear from the Amended
Complaint that Plaintiff is unable to state a claim under § 1983 or state law for his slip and fall,

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and the proposed second amended complaint, ECF No. 47, is unable to cure the deficiencies.
Because "[ t ]he problem with [Plaintiffs] causes of action is substantive[,] better pleading will
not cure it. Repleading would thus be futile." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000). Accordingly, Plaintiffs motion to file a second amended complaint is denied, and his
request for a Valentin order is denied as moot.
IV. CONCLUSION

For the reasons stated above, Defendants' motion to dismiss is GRANTED, Plaintiffs
motion for leave to file a second amended complaint is DENIED, and Plaintiffs motion for a
Valentin order is DENIED as moot. The Clerk of Court is directed to terminate the motions at

ECF Nos. 21, 47, and 49, mail a copy of this order to Plaintiff prose, and close the case.
SO ORDERED.

l~m#M'Yd

Dated: January 9, 2017
New York, New York

KIMBA W. WOOD
United States District Judge

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