Colbert v. Gumusdere et al

Filing 38

MEMORANDUM OPINION AND ORDER re: 16 MOTION to Dismiss the Amended Complaint, filed by Mr. Bilardi, Joseph Aponte, Turhan Gumusdere, City of New York. For the foregoing reasons, Defendant's motion to dismiss Plaintiff's A mended Complaint is granted in its entirety. The Clerk of Court is respectfully requested to enter judgment in Defendants' favor and close this case. This Memorandum Opinion and Order resolves Docket Entry Number 16. The Court certifies, pursuan t to 28 U.S.C. 1915(a)(3), that any appeal from this Memorandum Opinion and Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Signed by Judge Laura Taylor Swain on 3/25/2016) Copies Mailed By Chambers. (spo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------x
MICHAEL COLBERT,
Plaintiff,
-v-

No. 15CV1537-LTS-DCF

WARDEN TURHAN GUMUSDERE et al.

Defendants.
-------------------------------------------------------x
MEMORANDUM OPINION AND ORDER
In this action brought pursuant to 42 U.S.C. § 1983, pro se Plaintiff Michael
Colbert (“Plaintiff” or “Colbert”) seeks monetary damages for Eighth and Fourteenth
Amendment violations he allegedly suffered while incarcerated as a pretrial detainee at the Anna
M. Kross Center (“A.M.K.C.”) at Rikers Island. Plaintiff claims that A.M.K.C. Warden Turhan
Gumusdere, A.M.K.C. Maintenance Supervisor Anthony Bilardi, New York City Department of
Corrections (“DOC”) Commissioner Joseph Ponte, the City of New York (the “City”) and “EHO
Captain” Williams, as well as several John Doe officers (collectively “Defendants”), exhibited
deliberate indifference to his health and safety, causing him to suffer serious injuries as a result.
The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331.
Now before the Court is Defendants’ motion to dismiss Plaintiff’s Amended
Complaint (Docket Entry No. 9 (“Am. Compl.”)) pursuant to Federal Rule of Civil Procedure
12(b)(6).1 (See Docket Entry No. 16.) Defendants assert that: Plaintiff failed to exhaust the
1

According to Defendants’ Memorandum of Law in Support of Their Motion to
Dismiss the Amended Complaint (Docket Entry No. 17 (“Def. Memo.”)), the

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administrative remedies available to him at A.M.K.C. prior to bringing suit; Plaintiff has not
alleged sufficient facts to state a constitutional claim; and Plaintiff has failed to allege facts
sufficient to state a claim for municipal liability as against the City. The Court has carefully
considered all of the parties’ submissions. For the reasons set forth below, the Court grants
Defendants’ motion and dismisses Plaintiff’s Amended Complaint in its entirety.

BACKGROUND2
At approximately 8 a.m. on November 27, 2014, Plaintiff slipped and fell in a
puddle that had formed on the floor of his housing unit at the A.M.K.C. during a rainstorm the
previous night. (Am. Compl. ¶ II-d.) Plaintiff alleges that he was walking from his bed to the
bathroom when he slipped, and that he did not see the puddle because the dormitory lights were
not yet on for the day. (Id.) Plaintiff claims to have suffered injuries to his head, neck, back and
knee. (Am. Compl. ¶ III.) He was transported to Elmhurst Hospital, where doctors took x-rays
of his neck and back, gave him a knee brace and prescribed pain medication. (Id.)
Plaintiff claims that his housing unit had a leaky roof that allowed puddles to
form on the floor whenever it rained. (Id. ¶ II-d.) The roof deteriorated during Plaintiff’s time
defendant named in Plaintiff’s filings as EHO Captain Williams has not been
served with the Amended Complaint and has not waived service. (Def. Memo.
p. 2 n.1.) Because, as explained below, the Amended Complaint fails to state a
claim upon which relief may be granted, the Court grants Defendants’ request to
extend the relief granted herein to the served Defendants to Captain Williams as
well.
2

The facts that follow are drawn from the Amended Complaint and are assumed to
be true for the purposes of this motion practice. Certain additional facts
concerning Plaintiff’s efforts to exhaust his administrative remedies are drawn
from Plaintiff’s original Complaint (Docket Entry No. 2 (“Compl.”)) and
Plaintiff’s Notice of Opposition to Motion to Dismiss. (Docket Entry No. 22 (“Pl.
Opp.”).)

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in the unit, and he alleges that a puddle formed “in a new spot whenever it rain[ed] badly.” (Am.
Compl. ¶ II-d.) Plaintiff alleges that other prisoners had slipped, fallen, and injured themselves
as a result of these puddles prior to his own fall, and that Defendants knew about the problems
with the roof. (Id.) Officers assigned to the housing unit had submitted work orders to fix the
roof, and prisoners residing in the unit had filed grievances about it. (Id.) Furthermore, the
grievance clerk had emailed the A.M.K.C. maintenance staff to ask that the roof be fixed. (Id.)
At least one inmate in the same housing unit as Plaintiff had filed a civil complaint alleging facts
similar to those asserted by Plaintiff against Defendants prior to Plaintiff’s fall. (Id.); see Tyler
v. Gumusdere, et al., No. 14CV8638-JMF.
According to Plaintiff’s Opposition, he filed a grievance in the A.M.K.C.
grievance box sometime between his fall on November 27 and the end of November 2014. (Pl.
Opp. at ECF p. 12.) In December 2014, Colbert met with Elizabeth Landen, a member of
A.M.K.C.’s grievance staff, who told him she would send “a message by email [about the
problems with the roof] to the maintenance supervisor and captain.” (Id.)
Plaintiff signed his original Complaint on December 2, 2014, while his grievance
was “still pending.” (Compl. ¶ IV-E(3).) This action was commenced by the filing of that
Complaint on February 27, 2015. Plaintiff filed his Amended Complaint on April 14, 2015.
(Docket Entry No. 9.) At the time that Plaintiff filed the Amended Complaint, which was four
months after he suffered his injuries, the roof had still not been repaired. (Am. Compl. ¶ II-D.)
Plaintiff claimed, however, that he was “satisfied with the decision” on the grievance –
presumably referencing Landen’s follow-up with the maintenance supervisor and captain – and
saw “no need for appeal.” (Am. Compl. ¶ IV-E(3).)

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DISCUSSION
Legal Standards on a Rule 12(b)(6) Motion to Dismiss
“To survive a motion to dismiss [pursuant to Federal Rule of Civil Procedure
12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks and citations omitted). This requirement is satisfied when the factual content in
the complaint “allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
A complaint that contains only “naked assertions” or “a formulaic recitation of the elements of a
cause of action” does not suffice. Twombly, 550 U.S. at 555. In making its Rule 12(b)(6)
determinations, the Court “may consider any written instrument attached to the complaint,
statements or documents incorporated into the complaint by reference . . . and documents
possessed by or known to the plaintiff and upon which [he] relied in bringing the suit.” ATSI
Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). In deciding a Rule
12(b)(6) motion, a court assumes the truth of the facts asserted in the complaint and draws all
reasonable inferences from those facts in favor of the plaintiff. See Harris v. Mills, 572 F.3d 66,
71 (2d Cir. 2009).
The Court construes pro se pleadings liberally, Harris, 572 F.3d at 72, and
interprets them to raise the “strongest [claims] that they suggest.” Triestman v. Federal Bureau
of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted)
(emphasis in original). Nevertheless, the Court need not accept as true “conclusions of law or
unwarranted deductions of fact that are not admitted.” First Nationwide Bank v. Gelt Funding
Corp., 27 F.3d 763, 771 (2d Cir. 1994) (internal quotation marks and citations omitted).
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Exhaustion of Administrative Remedies
As an initial matter, Defendants argue that the Amended Complaint should be
dismissed because Plaintiff brought this action without first exhausting DOC’s four-step
administrative process for prisoner grievances. (Def. Memo. p. 5); see also DOC “Directive:
Inmate Grievance and Request Program” (“IGRP”) (No. 3376, effective Sept. 10, 2012),
available at http://www.nyc.gov/html/doc/downloads/pdf/Directive_3376_Inmate_Grievance_
Request_Program.pdf (last visited March 24, 2016); Groenow v. Williams, No. 13CV3916PAC-JLC, 2014 WL 941276, at *2 n.1 (S.D.N.Y. Mar. 11, 2014).
The Prison Litigation Reform Act of 1995 (the “PLRA”), which regulates the
filing of federal lawsuits by incarcerated individuals, provides in relevant part that “[n]o action
shall be brought with respect to prison conditions under section 1983 of this title, or any Federal
law, by a prisoner confined in any jail, prison, or correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C.S. § 1997e(a) (LexisNexis 2009). The
requirement of exhaustion “applies to all inmate suits about prison life, whether they involve
general circumstances or particular episodes, and whether they allege excessive force or some
other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). “Even when the prisoner seeks relief
not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to
suit,” id. at 524, so long as the administrative process “could provide some sort of relief on the
complaint stated.” Booth v. Churner, 532 U.S. 731, 734 (2001).
While exhaustion is a mandatory statutory precondition to filing suit, the PLRA
explicitly permits courts to dismiss cases without finding that administrative remedies have been
exhausted “[i]n the event that a claim is, on its face, frivolous, malicious, fails to state a claim
upon which relief can be granted, or seeks monetary relief from a defendant who is immune
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from such relief.” 42 U.S.C.S. § 1997e(c)(2) (LexisNexis 2009). In light of this provision, as
well as the Court’s determination, explained infra, that the Amended Complaint is facially
deficient, the Court need not conclusively determine whether Plaintiff fully exhausted the
administrative remedies available to him, nor whether special circumstances existed that would
have excused him from doing so.3 See Hemphill v. New York, 380 F.3d 680, 686 (2d Cir.
2004).

Plaintiff’s Failure to State a Claim
A pretrial detainee’s challenge to the conditions of his confinement is analyzed
under the Due Process Clause of the Fourteenth Amendment. Caiozzo v. Koreman, 581 F.3d 63,
66 (2d Cir. 2009); see also Hallett v. Davis, No. 11CV4646-WHP, 2012 WL 4378020, at *2
(S.D.N.Y. Sep. 25, 2012). The Eighth Amendment does not apply to Colbert’s claims because
“as a pre-trial detainee [Plaintiff] was not being punished.” Cuoco v. Moritsugu, 222 F.3d 99,
106 (2d Cir. 2000) (internal quotation marks and citations omitted). In Caiozzo, however, the
court held that the same standard applies in analyzing a Fourteenth Amendment claim: “[c]laims

3

On the record before the Court, it appears possible that Colbert did exhaust his
administrative remedies prior to filing suit. Although his original complaint was
signed on December 2, 2014 (see Compl.) – only five days after Plaintiff suffered
his alleged injuries – it was not actually filed until February 27, 2015, after
Colbert had met with grievance officer Elizabeth Landen. Colbert may well have
exhausted the administrative remedies available to him at A.M.K.C. upon meeting
with Landen. Landen’s decision to notify maintenance personnel about the
problem with the roof was a favorable outcome for Colbert, so the second step of
DOC’s Grievance and Request Program may not have applied to him. See IGRP
(“if unsatisfied with the disposition or a disposition has not been reached in a
timely manner, request a hearing with the Inmate Grievance Resolution
Committee within five days of the disposition.”). Even a quick response by
maintenance would not have been likely to lead to the leaky roof being fixed
within the five days in which Plaintiff could have appealed.

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for deliberate indifference to a serious medical condition or other serious threat to the health or
safety of a person in custody should be analyzed under the same standard irrespective of whether
they are brought under the Eighth or Fourteenth Amendment.” Caiozzo, 581 F.3d at 71.
To state a claim for constitutionally inadequate conditions of confinement, a
pretrial detainee must plead facts satisfying both objective and subjective criteria. The Supreme
Court has held that a prisoner must demonstrate both that “the deprivation alleged [was]
objectively, sufficiently serious,” and that prison officials exhibited “a sufficiently culpable state
of mind[:] deliberate indifference to inmate health or safety.”4 Farmer v. Brennan, 511 U.S. 825,
834 (1994) (internal quotation marks and citations omitted); see also Caiozzo, 581 F.3d at 71.
Under the objective prong of the analysis, “only extreme deprivations are sufficient to sustain a
conditions-of-confinement claim.” Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999)
(internal quotation marks and citations omitted). Prison conditions are required to be “humane,
though not necessarily comfortable,” and while “the conditions themselves must be evaluated in
light of contemporary standards of decency,” Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012)
(internal quotation marks and citations omitted), “objectively, the deprivation the inmate
suffered [must have been] ‘sufficiently serious that he was denied the minimal civilized measure
of life’s necessities.’” Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (citing Gaston v.
Coughlin, 249 F.3d 156, 164 (2d Cir. 2001)).
4

The Court acknowledges that the Supreme Court’s decision in Kingsley v.
Hendrickson, 135 S. Ct. 2466 (2015), which held that “the appropriate standard
for a pretrial detainee’s excessive force claim is solely an objective one,” id. at
2473, may have implications for cases such as this one, in which a pretrial
detainee has asserted a deliberate indifference claim. The Kingsley holding has
not yet, however, been applied beyond the context of excessive force cases.
Moreover, even if Kingsley’s purely objective analysis were applied here, the
Court’s analysis would remain unchanged because Plaintiff has failed to allege
facts that satisfy the objective prong of the deliberate indifference inquiry.

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Here, despite Plaintiff’s characterization of his living conditions at A.M.K.C. as
“squalid, dangerous and potentially fatal,” the facts set forth in the Amended Complaint depict
an unpleasant, but not unconstitutional, set of living conditions arising from poor maintenance.
(Am. Compl. ¶ II-d.) According to the diagram attached to the Amended Complaint, the leaks
that created the puddles were not pervasive. (Id. Ex. A.) Courts in this district have consistently
held that “slippery prison floors, at best, pose a claim of negligence, which is not actionable
under the United States Constitution.” Jennings v. Horn, No. 05CV9435-SAS, 2007 WL
2265574, at *5 (S.D.N.Y. Aug. 7, 2007); see also Covington v. Westchester County Dep’t of
Corrections, No. 06CV5369-WHP, 2010 WL 572125, at *8 (S.D.N.Y. Jan. 25, 2010) (holding
that a wet hallway floor on which the plaintiff slipped and fell “does not rise to the level of
intolerable prison conditions,” even if prison officials knew about the wet conditions and ordered
the prisoner into the hallway); Edwards v. The City of New York, No. 08CV05787-PGG, 2009
WL 2596595, at *3 (S.D.N.Y. Aug. 24, 2009) (holding that “allegations of wet conditions
leading to a slip-and-fall will not support a Section 1983 claim even where . . . the plaintiff also
alleges that the individual defendants had notice of the wet condition but failed to address it.”).
Cf. Walker v. Vargas, No. 11CV9034-ER, 2013 WL 4792765 (S.D.N.Y. Aug. 26, 2013)
(complaint met objective prong where plaintiff alleged that he had been forced to work in prison
kitchen that had been flooded for a week due to a clogged drain and contained hazardous
conditions, including an open hot water drain into which plaintiff slipped, sustaining serious
burns).
Plaintiff has not alleged facts that, read in the light most favorable to him,
indicate that he was “denied the minimal civilized measure of life’s necessities.” See Walker,
717 F.3d at 125. Accordingly, his Amended Complaint fails to meet the first prong of the
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deliberate indifference test – demonstration that there was an objectively serious condition that
posed an excessive risk to inmate health or safety. See Farmer, 511 U.S. at 837. Under these
circumstances, the Amended Complaint cannot survive this motion practice and the Court need
not address the subjective prong of the test.
In light of Plaintiff’s failure to plead facts alleging that the conditions of his
confinement were objectively serious enough to state a claim of deliberate indifference rising to
the level of a Fourteenth Amendment violation, the Court grants Defendants’ motion to dismiss
Plaintiff’s Amended Complaint.5

5

In light of the Court’s determination that Plaintiff has failed to plead a
constitutional violation, which is a necessary prerequisite of a claim for municipal
liability under Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658
(1978), the Court also grants Defendants’ motion insofar as it seeks dismissal of
Plaintiff’s municipal liability claim.

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CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss Plaintiff’s Amended
Complaint is granted in its entirety. The Clerk of Court is respectfully requested to enter
judgment in Defendants’ favor and close this case.
This Memorandum Opinion and Order resolves Docket Entry Number 16.
The Court certifies, pursuant to 28 U.S.C. 1915(a)(3), that any appeal from this
Memorandum Opinion and Order would not be taken in good faith, and therefore in forma
pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S.
438, 444-45 (1962).
SO ORDERED.
Dated: New York, New York
March 25, 2016

/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge

Copy mailed to:
Mr. Michael Colbert, DIN 15R2219
Watertown Correctional Facility
23147 Swan Road
Watertown, New York 13601-9340

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