Simmons v. Schriro et al

Filing 28

MEMORANDUM AND OPINION re: 20 MOTION to Dismiss . filed by Joseph Ponte, Tony Durante, City of New York. For the foregoing reasons, Defendants' motion for judgment on the pleadings is GRANTED. The Clerk's Office is respectfully directed to mail a copy of this Memorandum and Opinion to the pro se Plaintiff, terminate the open motion at Document 20, and close this case. SO ORDERED. (Signed by Judge Vernon S. Broderick on 11/28/2017) (rj)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
BRANDI SIMMONS,
:
:
Plaintiff,
:
:
-v:
:
CITY OF NEW YORK, et al.,
:
:
Defendants. :
:
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11/28/2017

15-CV-2894 (VSB)
MEMORANDUM AND OPINION

Appearances:
Brandi Simmons
East Elmhurst, New York
Plaintiff Pro Se
Caleb Charles Hagopian
New York City Law Department
New York, New York
Counsel for Defendants
VERNON S. BRODERICK, United States District Judge:
Plaintiff Brandi Simmons brings this action pro se alleging claims under 42 U.S.C.
§ 1983 premised on hazardous health conditions at the Anna M. Kross Center (“AMKC”) on the
Rikers Island complex, the correctional facility where he was incarcerated, against Defendants
the City of New York, Tony Durante, warden of the correctional facility, and Joseph Ponte, New
York City Department of Correction Commissioner (collectively, “Defendants”). Before me is
Defendants’ motion to dismiss the amended complaint under Federal Rule of Civil Procedure
12(b)(6). (Doc. 20.)1 Because I find that Plaintiff failed to exhaust his administrative remedies,

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Although Defendants bring their motion under Rule 12(b)(6), Defendants have filed an answer, and therefore more
appropriately move under Rule 12(c). (See Doc. 12.) Therefore, I construe Defendants’ motion as a motion for
judgment on the pleadings under Rule 12(c). In any event, construing Defendants’ motion as one under Rule 12(c)

Defendants’ motion to dismiss is granted.
Background2
At least as of March 2015, Plaintiff was incarcerated at AMKC. (Am. Compl. 2.)3
Plaintiff resided in dormitory 4 in the upper area of AMKC, the location in which the events
giving rise to his claim occurred. (Id.) Specifically, Plaintiff alleges that from approximately
March 12, 2015 and March 15, 2015 “to and until [Beyond],” he and other inmates at AMKC
were forced to inhale the fumes of peeling paint and asbestos, which were hazardous to their
health. (Id.) Plaintiff filed a grievance on March 19, 2015 that was not directly answered. (Id.
at 2–3.) However, on April 13, 2015, a Captain inspected the dormitory together with health
environment inspectors. (Id. at 3.) On April 22, 2015, independent contractors came into the
dormitory to test for asbestos, and the area tested positive for asbestos. (Id.) Despite this
positive test, Plaintiff and his fellow inmates were not relocated. (Id.) The warden was again
notified, and although another Captain inspected the dormitory, Plaintiff was never moved. (Id.)
Plaintiff also contends that Rikers Island “is built on a landfill of garbage which has
corroded and now omits a bio-degradable cancerous odor that puts this Plaintiff at risk of
catching cancer over the years in which it will take the court system to take this Plaintiff to trial.”
(Id.) In addition to peeling paint, Plaintiff complains that the dormitory had non-working urinals
and toilets, constantly running sinks that were liable to overflow, and non-functional windows.

is in harmony with Defendants’ intent, since Defendants specifically requested “leave to file a motion to dismiss the
Amended Complaint pursuant to Rule 12(c).” (Doc. 16.)
2
I assume Plaintiff’s allegations contained in the amended complaint to be true for purposes of this motion. See
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002). However, my references to these allegations should not
be construed as a finding as to their veracity, and I make no such findings.
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“Am. Compl.” refers to the amended complaint, filed on June 9, 2015 (the “Amended Complaint”). (Doc. 6.) The
page numbers given to the Amended Complaint are not consecutively numbered, so any references to the page
numbers in the Amended Complaint shall be to those given by the ECF filing system.

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(Id.) Plaintiff claims that as a result of his inhalation of the hazardous fumes, it “is scientifically
proven” that such inhalation “can, does, and will cause mesothelioma, and cancer.” (Id.)
Finally, under the section of his Amended Complaint with the heading “Exhaustion of
Administrative Remedies,” Plaintiff only asserts that his claims did arise while he was confined
in a correctional facility. (Id.) However, the Amended Complaint, which uses pages from the
Amended Civil Rights Complaint form, skips pages four and five of that form—pages that
contained questions that required responses that would have provided details concerning what
steps, if any, Plaintiff took to exhaust his administrative remedies. (See id. at 3–4.)4
Procedural History
Plaintiff commenced this action by filing his complaint on April 7, 2015. (Doc. 2.) In
Plaintiff’s original complaint he stated that he “filed a grieviance [sic], but did not wait for a
response because [he] knew it would be a NON-GRIEVABLE action.” (Id. at 2.) On May 13,
2015, Chief Judge Loretta Preska, to whom this case was originally assigned, issued an order
instructing Plaintiff to submit an amended complaint within sixty days. (Doc. 5, at 7.) In her
order, Chief Judge Preska pointed out the deficiencies in the complaint and outlined what
Plaintiff would have to allege to plead satisfactorily his Section 1983 claim. (Id. at 5–6.)
Specifically, with regard to the deficiencies, Chief Judge Preska stated:
Plaintiff does not clearly allege what he personally experienced. For example, he
does not allege the basis for his knowledge about the presence of asbestos and he
does not provide such facts as exactly where within A.M.K.C. he experienced the
poor conditions, how long he has been exposed to the conditions, the dates of
exposure, whether he has had any specific health issues and how he knows that any
health issues are connected to the alleged conditions. Outside of filing his
grievance, Plaintiff does not explain whether he reported the conditions to any other
corrections personnel and what response, if any, the reports elicited. Finally,
Plaintiff does not clearly allege facts showing that the conditions posed a substantial
4

Notably, the Amended Civil Rights Complaint Form attached by Judge Preska in her May 13, 2015 Order
contained all of the relevant pages, which included all questions related to exhaustion of administrative remedies.
(See Doc. 5.)

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risk of serious harm or that any individual was deliberately indifferent to the risk
of serious harm to Plaintiff’s health or safety. The complaint therefore cannot
proceed in its current form.
(Id. at 4.) On June 9, 2015, Plaintiff filed the Amended Complaint, (Doc. 6), and on June 17,
2015, the case was reassigned to me. On June 23, 2015, I entered an Order dismissing
Defendants Bill De Blasio and New York City Corporation Counsel. (Doc. 9.) On October 20,
2015, Defendants filed their Answer. (Doc. 12.) On February 1, 2016, I granted Defendants’
request for leave to file a motion to dismiss under Federal Rule of Civil Procedure 12(c) and set a
briefing schedule. (Doc. 19.) In accordance with that briefing schedule, on March 4, 2016,
Defendants filed their motion to dismiss. (Docs. 20–21.) After Plaintiff did not file his
opposition by April 15, 2016, I entered an Order on June 10, 2016, instructing Plaintiff to file an
opposition on or before July 22, 2016, and informing Plaintiff that if no opposition is filed, I
would consider the motion fully briefed and render a decision without the aid of his response (the
“June Order”). (Doc. 23.) Plaintiff did not submit any opposition to Defendants’ motion to
dismiss.
On January 17, 2017, I issued another Order noting that Plaintiff may not have received a
copy of the June Order and bringing to light that, irrespective of Plaintiff’s failure to file a notice
of change of address, Plaintiff had been relocated from the AMKC to the George R. Vierno
Center on Rikers Island (the “January Order”). (Doc. 25.) For these reasons, I granted Plaintiff
another opportunity to file an opposition to Defendants’ motion on or before February 13, 2017,
and noted that if no opposition was filed, I would consider the motion fully briefed and render a
decision without the aid of Plaintiff’s response. (Id.)
In lieu of filing an opposition, Plaintiff, on January 31, 2017, filed a letter requesting that
I appoint counsel to assist him in responding to the motion to dismiss. (Doc. 26.) I issued an

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Order on February 2, 2017 denying Plaintiff’s request and again extending the time for Plaintiff
to respond to the motion to dismiss until March 3, 2017. (Doc. 27.) To date, and although
Plaintiff continues to pay the pro se fees associated with this litigation, (see Dkt. Entry Feb. 22,
2017), Plaintiff has not filed an opposition.
Legal Standards
“After the pleadings are closed—but early enough not to delay trial—a party may move
for judgment on the pleadings” under Federal Rule of Civil Procedure 12(c). Fed. R. Civ. P.
12(c). The standard applicable to motions under Rule 12(c) is the same as the standard applied
to motions to dismiss pursuant to Rule 12(b)(6). Alcantara v. Bakery & Confectionery Union &
Indus. Int’l Pension Fund Pension Plan, 751 F.3d 71, 75 (2d Cir. 2014). To survive a motion to
dismiss under Rule 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim will have
“facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. This standard
demands “more than a sheer possibility that a defendant has acted unlawfully.” Id. “Plausibility
. . . depends on a host of considerations: the full factual picture presented by the complaint, the
particular cause of action and its elements, and the existence of alternative explanations so
obvious that they render plaintiff’s inferences unreasonable.” L-7 Designs, Inc. v. Old Navy,
LLC, 647 F.3d 419, 430 (2d Cir. 2011).
In considering a motion under Rule 12(b)(6) or Rule 12(c), a court must “accept all
factual allegations in the complaint as true and draw all reasonable inferences in [the plaintiff’s]
favor.” Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009) (per curiam); accord Kassner v. 2nd

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Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007). A complaint need not make “detailed
factual allegations,” but it must contain more than mere “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action.” Iqbal, 556 U.S. at 678 (internal quotation marks
omitted). Finally, although all allegations contained in the complaint are assumed to be true, this
tenet is “inapplicable to legal conclusions.” Id.
Even after Twombly and Iqbal, a “document filed pro se is to be liberally construed and a
pro se complaint, however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.” Boykin v. KeyCorp., 521 F.3d 202, 214 (2d Cir. 2008)
(internal quotation marks omitted). Further, pleadings of a pro se party should be read “to raise
the strongest arguments that they suggest.” Kevilly v. New York, 410 F. App’x 371, 374 (2d Cir.
2010) (summary order) (internal quotation marks omitted). Nevertheless, dismissal of a pro se
complaint is appropriate where a plaintiff fails to state a plausible claim supported by more than
conclusory factual allegations. See Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). In other
words, the “duty to liberally construe a plaintiff’s complaint is not the equivalent of a duty to rewrite it.” Geldzahler v. N.Y. Med. Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (internal
quotation marks omitted).
Discussion
Defendants move to dismiss the Amended Complaint on the following grounds: (1)
failure to exhaust administrative remedies and failure to allege a physical injury as required by
the Prison Litigation Reform Act, 42 U.S.C. § 1997e (the “PLRA”); (2) failure to state a claim
for municipal liability; (3) failure to state the personal involvement of Commissioner Ponte and
Warden Durante; and (4) failure to state a cognizable constitutional claim that is facially

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plausible. (See Defs.’ Mem. 1.)5 Because I find that Plaintiff failed to exhaust his administrative
remedies warranting the dismissal of the Amended Complaint, I do not address the other bases
for dismissal raised by Defendants’ motion.6
The PLRA precludes a confined individual from bringing any action with respect to
prison conditions under Section 1983 or any other Federal law “until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). A court must carefully examine
the applicable grievance procedures available at a plaintiff’s correctional facility during the time
that the facts constituting the basis for the complaint arose to determine whether administrative
remedies were available. See Taylor v. N.Y. State Dep’t of Corr., No. 03 Civ. 1929(PKC), 2004
WL 2979910, at *6 (S.D.N.Y. Dec. 22, 2004) (citing Abney v. McGinnis, 380 F.3d 663, 668 (2d
Cir. 2004)). Here, Defendants refer to the New York City Department of Correction’s (“DOC”)
Inmate Grievance and Request Program (the “IGRP”) as the applicable set of procedures. (See
Defs.’ Mem. 4–5.) “The PLRA ‘requires proper exhaustion, which means using all steps that the
agency holds out, and doing so properly (so that the agency addresses the issues on the merits).’”
Groenow v. Williams, No. 13 Civ. 3961 (PAC)(JLC), 2014 WL 941276, at *2 (S.D.N.Y. Mar.
11, 2014) (quoting Hernandez v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009)).
Although prisoners “are not required to specially plead or demonstrate exhaustion in their

5

“Defs.’ Mem.” refers to Defendants’ Memorandum of Law in Support of Defendants’ Motion to Dismiss the
Complaint. (Doc. 21.)
6
However, I note that the Amended Complaint does not contain any allegations concerning an official policy or
custom necessary to support a claim for municipal liability, Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.
1995) (the three elements for municipal liability under section 1983 include: “(1) an official policy or custom that
(2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” (internal quotation marks omitted)),
nor does it contain allegations that Commissioner Ponte took any actions related to Plaintiff’s claims to support the
assertion of a section 1983 claim against him, Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (“It is well settled in
this Circuit that ‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983.’” (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991))). These
deficiencies also support the dismissal of the Amended Complaint as to the City of New York and Commissioner
Ponte.

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complaints,” Jones v. Bock, 549 U.S. 199, 216 (2007), and although many district courts will not
assume that a prisoner has failed to exhaust his administrative remedies when that prisoner
indicates he has taken certain steps but is silent as to the remaining steps, see Groenow, 2014
WL 941276, at *3 (citing case law), dismissal is appropriate where failure to exhaust is clear on
the face of the complaint, see id. at *4; see also Loccenitt v. City of N.Y., No. 11 Civ. 5651
(PAC)(HBP), 2012 WL 3822701, at *3 (S.D.N.Y. July 30, 2012), report and recommendation
adopted, No. 11 Civ. 5651 (PAC)(HBP), 2012 WL 3822213 (S.D.N.Y. Sept. 4, 2012).
Here, although Chief Judge Preska provided Plaintiff with the proper form including
questions the answers to which would have cast significant light on Plaintiff’s adherence to the
grievance process, (see Doc. 5), Plaintiff did not provide any information with respect to his
exhaustion of the administrative remedies except to state that his claim did arise while he was
incarcerated and that he filed a grievance on March 19, 2015, (Am. Compl. 2–3), less than two
weeks before he submitted his initial complaint, (see Doc. 2, at 5). However, in the initial
complaint, Plaintiff stated that he “filed a grieviance [sic], but did not wait for a response
because [he] knew it would be a NON-GRIEVABLE action.” (Id. at 2.) Plaintiff also claimed
that the grievance was “STILL PENDING.” (Id.) Plaintiff explicitly conceded that while he
initiated a grievance, he did not wait for a response or otherwise follow the IGRP procedure
before filing his complaint because he assumed the offense would not be grievable, and there are
no allegations in the Amended Complaint that contradict these statements. (Id.; see generally
Doc. 6.) Under these circumstances, I find that Plaintiff failed to exhaust his administrative
remedies at the time he filed his complaint.

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Conclusion
For the foregoing reasons, Defendants’ motion for judgment on the pleadings is
GRANTED. The Clerk’s Office is respectfully directed to mail a copy of this Memorandum and
Opinion to the pro se Plaintiff, terminate the open motion at Document 20, and close this case.

SO ORDERED.
Dated: November 28, 2017
New York, New York
______________________
Vernon S. Broderick
United States District Judge

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