Estevez v. The City of New York et al

Filing 54

MEMORANDUM OPINION AND ORDER re: 48 FIRST MOTION to Dismiss for failure to state a claim. filed by The City of New York, Robert Cripps, Luis A. Rivera, Joseph Ponte, Carlton Newton. The Court has considered all of the arguments rai sed by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For the foregoing reasons, the motion to dismiss is granted, and the plaintiff's claims are dismissed without prejudice and with leave to replead. Any second amended complaint in this action is to be filed within thirty (30) days of the date of this Memorandum Opinion and Order. If no such amended complaint is filed, the Clerk is directed to close this case. The Clerk is directed to close all pending motions. (Signed by Judge John G. Koeltl on 3/28/2017) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
ESTEVEZ,

16-cv-00073 (JGK)
Plaintiff,

MEMORANDUM OPINION AND
ORDER

- against THE CITY OF NEW YORK ET AL.,
Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The plaintiff, Juan Estevez, a convicted inmate proceeding
pro se, claims pursuant to 42 U.S.C. § 1983 that his
constitutional rights were violated while he was incarcerated at
the Anna M. Kross Center (the “AMKC”), a holding facility
operated by the New York City Department of Correction (the
“DOC”). Specifically, the plaintiff claims that his
constitutional rights were violated by deliberately indifferent
prison officials when he slipped and fell on an unduly wet
shower floor at the AMKC, and when he received allegedly
inadequate medical treatment for his resulting injuries.
DOC Commissioner Joseph Ponte, AMKC Warden Carlton Newton,
Supervising Warden Robert Cripps, and West Facility Warden Luis
A. Rivera (the “individual defendants”), and the City of New
York (the “City”) (collectively, the “defendants”) have moved to
dismiss the Amended Complaint for failure to state a claim

pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure.1 For the following reasons, the motion to dismiss is
granted.
I.
In deciding a motion to dismiss pursuant to Rule 12(b)(6),
the allegations in the complaint are accepted as true, and all
reasonable inferences must be drawn in the plaintiff’s favor.
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.
2007). The Court’s function on a motion to dismiss is “not to
weigh the evidence that might be presented at a trial but merely
to determine whether the complaint itself is legally
sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.
1985). The Court should not dismiss the complaint if the
plaintiff has stated “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). “A claim has 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). While the Court should construe the factual allegations
in the light most favorable to the plaintiff, “the tenet that a

1

While the plaintiff denies that the motion to dismiss should be
granted, the plaintiff did not provide a substantive response to
the defendants’ motion to dismiss. See Dkt. 53.
2

court must accept as true all of the allegations contained in
the complaint is inapplicable to legal conclusions.” Id.
When faced with a pro se complaint, the Court must
“construe [the] complaint liberally and interpret it to raise
the strongest arguments that it suggests.” Chavis v. Chappius,
618 F.3d 162, 170 (2d Cir. 2010) (citation and internal
quotation marks omitted). “Even in a pro se case, however, . . .
threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id.
(citation omitted). Thus, although the Court is “obligated to
draw the most favorable inferences” that the complaint supports,
it “cannot invent factual allegations that [the plaintiff] has
not pled.” Id.
When presented with a motion to dismiss pursuant to Rule
12(b)(6), the Court may consider documents that are referenced
in the complaint, documents that the plaintiff relied on in
bringing suit and that are either in the plaintiff’s possession
or that the plaintiff knew of when bringing suit, or matters of
which judicial notice may be taken. See Taylor v. Vt. Dep’t of
Educ., 313 F.3d 768, 776 (2d Cir. 2002); see also Cooksey v.
Digital, No. 14-CV-7146 (JGK), 2016 WL 5108199, at *2 (S.D.N.Y.
Sept. 20, 2016).

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II.
The allegations in the Amended Complaint are accepted as
true for the purposes of this motion to dismiss.
During the relevant period, the plaintiff alleges that he
was a convicted inmate temporarily incarcerated at the AMKC, a
holding facility operated by the DOC, pending his transfer to
State custody. Am. Compl. ¶ 12.
On November 3, 2015, the plaintiff claims that he slipped
and fell on a wet floor when he left the shower area at the AMKC
“because there were no[] mats on the floor.” Am. Compl. ¶ 12.
The plaintiff claims that there was “excessive water” on the
floor because the “drainage system . . . was not working
properly.” Am. Compl. ¶ 12. The plaintiff claims that he injured
his right wrist and aggravated an existing shoulder injury. Am.
Compl. ¶ 14.
The plaintiff alleges that he was treated about an hour
later by Dr. Habib Mohammad. Am. Compl. ¶ 14. Dr. Mohammad
concluded that the plaintiff had an injury to his right wrist,
noting that the plaintiff had swelling and reduced movement in
his right hand. Am. Compl. ¶ 14. Dr. Mohammad placed the
plaintiff’s right arm in a “splint/sling.” Am. Compl. ¶ 14. Dr.
Mohammad ordered that x-rays be performed, and prescribed pain
medication for the plaintiff, namely, “Tylenol/Codeine #3, 2
tabs [to be] taken every 12 hours for 4 days.” Am. Compl. ¶ 14.

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The plaintiff alleges that he was treated the next day by
Dr. Roxanne Hobbs-Green. Am. Compl. ¶ 15. The plaintiff alleges
that he complained about his pain, but that Doctor Hobbs-Green
refused his request for stronger pain medication. Am. Compl. ¶
15.
Five days later, on November 9, 2015, the plaintiff alleges
that he was treated by Doctor Lester Liberman, who diagnosed the
plaintiff with a “Closed Fracture of navicular bone of wrist814.01 (primary), and/or first metacarpal.” Am. Compl. ¶ 17. The
plaintiff alleges that Dr. Liberman referred the plaintiff for
hand surgery at an outside hospital, and scheduled a “follow-up
in 3 weeks.” Am. Compl. ¶ 17.
The plaintiff alleges that he was treated the next day by
Dr. Azmat Hasan after the plaintiff complained about continued
pain and reduced use of his right arm. Am. Compl. ¶ 18. Dr.
Hazan diagnosed the plaintiff with a “Contusion of wrist-93221,” and prescribed 400 mg. of Ibuprofen to be taken twice daily
for four days. Am. Compl. ¶ 18. None of the doctors that treated
the plaintiff are named as defendants in the Amended Complaint.
On November 12, 2015, nine days after the alleged fall, the
plaintiff was discharged from DOC custody and transferred to
State custody. Am. Compl. ¶ 19. In addition to alleging that the
medical treatment that he received at the AMKC was inadequate,
the plaintiff claims that the defendants did not take the

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requisite steps to inform the State authorities about the
severity of his injury to ensure that he would receive proper
medical treatment after leaving the AMKC. Am. Compl. ¶ 44. In
particular, the plaintiff alleges that the AMKC failed to
forward his medical records to the State authorities. Am. Compl.
¶ 44.
The plaintiff claims that the defendants were aware that
the floors around the shower area were unduly slippery, and that
the medical center at the AMKC was inadequate, based on a
variety of prior litigations against “New York City Jails.” Am.
Compl. ¶¶ 3-4, 19.
The plaintiff claims that he continues to suffer from pain
and other adverse consequences attributable to the fall. Am.
Compl. ¶ 19.
The plaintiff has brought claims against the defendants for
deliberate indifference to unconstitutional conditions of
confinement, and for deliberate indifference to his serious
medical needs, both in violation of the Eighth Amendment right
to be free from cruel and unusual punishments.2

2

The plaintiff also asserts claims pursuant to the Due Process
Clause of the Fourteenth Amendment. However, “a convicted
prisoner is obligated to pursue relief for allegedly
unconstitutional conditions under the Cruel and Unusual
Punishment[s] Clause of the Eighth Amendment while a pre-trial
detainee’s claim is properly brought under the Due Process
Clause of the Fourteenth Amendment.” V.W. by & through Williams
v. Conway, No. 9:16-CV-1150, 2017 WL 696808, at *17 (N.D.N.Y.
6

III.
A.
A deliberate indifference claim under the Eighth Amendment
consists of two elements. The first element is objective and
requires that a plaintiff establish a sufficiently serious
deprivation; the second element is subjective, and requires that
a plaintiff establish a sufficiently culpable state of mind on
the part of the responsible official. See Farmer v. Brennan, 511
U.S. 825, 832 (1994); Willey v. Kirkpatrick, 801 F.3d 51, 66 (2d
Cir. 2015); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.
1998).
(i)
The defendants have moved to dismiss the claims for
deliberate indifference to unconstitutional conditions of
confinement.
To establish the objective prong of a claim for deliberate
indifference to unconstitutional conditions of confinement, “the
inmate must show that the conditions, either alone or in
combination, pose an unreasonable risk of serious damage to his
health . . . , which includes the risk of serious damage to
Feb. 22, 2017); see also Darnell v. Pineiro, 849 F.3d 17, 29 (2d
Cir. 2017). The plaintiff alleges that he was a convicted inmate
at the time his constitutional rights were allegedly violated.
Am. Compl. ¶ 12. Accordingly, all of the claims in the Amended
Complaint will be construed as though they were brought under
the Cruel and Unusual Punishments Clause of the Eighth
Amendment.
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physical and mental soundness.” Darnell v. Pineiro, 849 F.3d 17,
30 (2d Cir. 2017) (citations and internal quotation marks
omitted). “There is no ‘static test’ to determine whether a
deprivation is sufficiently serious; instead, ‘the conditions
themselves must be evaluated in light of contemporary standards
of decency.’” Id. (quoting Blissett v. Coughlin, 66 F.3d 531,
537 (2d Cir. 1995)).
“[C]onditions of confinement may be aggregated to rise to
the level of a constitutional violation, but ‘only when they
have a mutually enforcing effect that produces the deprivation
of a single, identifiable human need such as food, warmth, or
exercise.’” Id. (quoting Walker v. Schult, 717 F.3d 119, 125 (2d
Cir. 2013)). “Each of [the] conditions must be measured by its
severity and duration, not the resulting injury, and none of
[the] conditions is subject to a bright-line durational or
severity threshold.” Id. at 32; see also Willey, 801 F.3d at 68.
To establish the subjective prong of a claim for deliberate
indifference to unconstitutional conditions of confinement under
the Eighth Amendment, a plaintiff must show “that the defendant
acted with more than mere negligence.” Farmer, 511 U.S. at 835.
“To constitute deliberate indifference, ‘[t]he prison official
must know of, and disregard, an excessive risk to inmate health
or safety.’” Walker, 717 F.3d at 125 (citation omitted).

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The plaintiff claims that the defendants were deliberately
indifferent to unconstitutional conditions of confinement at the
AMKC, namely, the wet floor around the shower area. The
plaintiff claims that the defendants failed to rectify the
problem by placing shower mats on the floor.
The allegations here of a slippery floor around a shower
area are not severe enough to rise to the level of an objective
constitutional violation because they did not plausibly pose an
unreasonable risk of serious damage to the plaintiff’s health.
See, e.g., Martinez v. Schriro, No. 14CIV3965 (KMW), 2017 WL
87049, at *5 (S.D.N.Y. Jan. 9, 2017) (“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.”); Carr v. Canty, No. 10 CIV. 3829 (JPO), 2012 WL
3578742, at *2 (S.D.N.Y. Aug. 16, 2012); Davis v. Reilly, 324 F.
Supp. 2d 361, 367 (E.D.N.Y. 2004) (failure to provide shower
mats did not give rise to an objective deprivation); LeMaire v.
Maass, 12 F.3d 1444, 1457 (9th Cir. 1993) (“Even if the floors
of the shower are slippery . . . , ‘slippery 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)). Indeed, “The present case is similar to cases
that are regularly dismissed under the objective element of the
deliberate indifference inquiry because they allege simple state

9

law torts” that are not actionable under the Constitution.
Seymore v. Dep’t of Corr Servs., No. 11 CIV. 2254 (JGK), 2014 WL
641428, at *4 (S.D.N.Y. Feb. 18, 2014) (collecting cases); see
also Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003)
(“[T]he Eighth Amendment is not . . . a substitute for state
tort law.”).
In addition, there are no plausible allegations suggesting
that the individual defendants were aware of the challenged
conditions. To allege awareness, the plaintiff points to the
high-level supervisory positions that the individual defendants
occupied at the AMKC. The plaintiff also identifies (without
much particularity) myriad litigations at all “New York City
Jails” related to a variety of issues, see Am. Compl. ¶ 20, that
would not necessarily have put the individual defendants on
notice of the slippery floors at the AMKC. The Amended Complaint
does not plausibly allege that the individual defendants were
aware of, and disregarded, the challenged conditions. See Little
v. Mun. Corp., 51 F. Supp. 3d 473, 492 (S.D.N.Y. 2014)
(“Plaintiffs fail to allege that these individuals expressed or
exhibited behavior evident of a mental state equivalent to
anything more than negligence.”); Zubek v. Warden, in 2010 of
Corrigan-Radgowaki Corr. Ctr., No. 3:15-CV-1633-VLB, 2016 WL
1735805, at *2 (D. Conn. May 2, 2016) (“The complaint fails to

10

identify any facts describing what anyone did, failed to do,
knew, or obviously should have known.”).
Accordingly, the claims for deliberate indifference to
conditions of confinement are dismissed.
(ii)
The defendants have moved to dismiss the claims for
deliberate indifference to the plaintiff’s serious medical
needs.
To establish the objective prong of a claim for deliberate
indifference to serious medical needs, the plaintiff must plead
that “a condition of urgency, one that may produce death,
degeneration, or extreme pain” exists. Hathaway v. Coughlin, 99
F.3d 550, 553 (2d Cir. 1996); see also Villar v. Ramos, No. 13
CV 8422 (JGK), 2015 WL 3473413, at *3 (S.D.N.Y. June 2, 2015).
The defendants do not challenge that the alleged injury suffered
by the plaintiff constituted a serious medical condition.
To establish the subjective prong of a claim for deliberate
indifference to serious medical needs under the Eighth
Amendment, the plaintiff must plausibly allege that the official
knew of the plaintiff’s serious need and deliberately
disregarded it. See Farmer, 511 U.S. at 837; Smith v. Carpenter,
316 F.3d 178, 184 (2d Cir. 2003). Absent a showing of “culpable
recklessness” by the physician, disagreements over forms of
treatment or the timing of intervention implicate medical

11

judgments that do not give rise to an Eighth Amendment
violation. Chance, 143 F.3d at 703; see also Villar, 2015 WL
3473413, at *3. “[I]n the medical context, an inadvertent
failure to provide adequate medical care cannot be said to
constitute an unnecessary and wanton infliction of pain or to be
repugnant to the conscience of mankind. Thus, a complaint that a
physician has been negligent in diagnosing or treating a medical
condition does not state a valid claim of medical mistreatment
under the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97,
105-06 (1976) (internal quotation marks omitted).
The actions allegedly taken by the doctors at the AMKC
undercut the plaintiff’s deliberate indifference claims. The
allegations show that the doctors at the AMKC promptly treated
the plaintiff for his injuries, and were available to him for
further treatments. They immobilized his right arm, ordered xrays, prescribed medication, and scheduled follow-up treatments,
including surgery. The plaintiff faults the doctors for not
prescribing stronger medication, or taking other treatment
actions more expeditiously, but “there is no allegation by the
plaintiff that [the AMKC] denied him any medically-necessary
treatment.” Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151
F. Supp. 2d 303, 312 (S.D.N.Y. 2001) (actual treatments by
doctors undermined deliberate indifference claims).

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The plaintiff also alleges that the doctors at the AMKC
failed to ensure that he would receive follow-up treatment after
he left the AMKC. The allegations are conclusory and fail to
show plausibly that the doctors understood that the plaintiff
would not receive the recommended treatments, let alone that
they were deliberately indifferent to his medical needs. See
Andrew v. Bellevue Hosp., No. 13-CV-8531 (KBF), 2016 WL 7009018,
at *4-5 (S.D.N.Y. Nov. 30, 2016); Walker v. Reid, No. 84 CIV.
5281 (EW), 1985 WL 192, at *1 (S.D.N.Y. Jan. 14, 1985)
(Weinfeld, J.) (“While plaintiff alleges that at [the prison], a
facility doctor ‘allegedly scheduled an appointment’ for outside
treatment, but that he never went to an outside hospital for
treatment, he has not alleged that this failure was intentional
. . . .”); McFadden v. Fischer, No. 13-CV-559 (FPG), 2016 WL
5661824, at *15 (W.D.N.Y. Sept. 30, 2016) (allegations of
problems associated with follow-up medical appointments
established, at best, mere negligence).
In addition, there are no plausible allegations to show
that any of the named individual defendants knew about any
aspect of the plaintiff’s injury or his medical treatments.
Andrew, 2016 WL 7009018, at *4 (“Without facts to support an
inference that any defendant knew of his alleged injuries,
plaintiff’s allegations of deliberate indifference are
inadequate.”). Again, the generalized allegation that there have

13

been prior litigations against the New York City jail system is
insufficient to show that the individual defendants, even with
their high-level supervisory positions, had any awareness of the
plaintiff’s medical needs in this case.
Accordingly, the claims for deliberate indifference to
serious medical needs are dismissed.
B.
The defendants correctly argue that the plaintiff’s failure
to plead the personal involvement of the individual defendants
in this case provides an additional basis for dismissal of the
claims against the individual defendants.
“[P]ersonal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under § 1983.” Farid v. Ellen, 593 F.3d 233, 249 (2d
Cir. 2010) (citation omitted). Indeed, “[t]here is no respondeat
superior liability in § 1983 cases.” Green v. Bauvi, 46 F.3d
189, 194 (2d Cir. 1995) (citation omitted). “A defendant’s
status as warden or commissioner of a prison, standing alone, is
. . . insufficient to establish personal involvement under
section 1983.” Walker v. Schriro, No. 11 Civ. 9299, 2013 WL
1234930, at *15 (S.D.N.Y. Mar. 26, 2013) (citations and internal
quotation marks omitted). To allege plausibly a defendant’s
personal involvement, “a plaintiff must plead that each
Government-official defendant, through the official’s own

14

individual actions, has violated the Constitution.” Iqbal, 556
U.S. at 676. Although the Court of Appeals for the Second
Circuit has not addressed whether Iqbal “heightened the
requirements for showing a [prison or correctional official’s]
personal involvement with respect to certain constitutional
violations,” see, e.g., Hogan v. Fischer, 738 F.3d 509, 519 n.3
(2d Cir. 2013), the Court of Appeals has indicated that, even
after Iqbal, “[a] supervisory official personally participates
in challenged conduct not only by direct participation, but by
(1) failing to take corrective action; (2) creation of a policy
or custom fostering the conduct; [or] (3) grossly negligent
supervision or deliberate indifference to the rights of others.”
Rolon v. Ward, 345 Fed. App’x 608, 611 (2d Cir. 2009) (summary
order) (citation omitted); see also Samuels v. Prack, No. 13-CV8287 (KMK), 2017 WL 934706, at *6 (S.D.N.Y. Mar. 8, 2017);
Seymore, 2014 WL 641428, at *6.
The plaintiff’s supervisory liability claims must be
dismissed because the plaintiff has failed to allege an
underlying constitutional deprivation. See, e.g., Seymore, 2014
WL 641428, at *6; Floyd v. Bailey, No. 10 Civ. 7794, 2013 WL
1155361, at *7 (S.D.N.Y. Mar. 21, 2013).
Moreover, there is no basis to conclude that any of the
individual defendants were personally involved in either the
challenged conditions of confinement or in the medical treatment

15

of the plaintiff’s injury. The allegations of personal
involvement are primarily predicated on the job titles of the
individual defendants, which is insufficient to establish
personal involvement. Similarly, the allegations of previous
litigations are far too generalized and conclusory to lead to a
plausible inference that the individual defendants had any
involvement in the alleged deprivations.
Accordingly, the claims against the individual defendants
are also dismissed for failure to plead personal involvement.
IV.
The claims against the City must be dismissed because the
plaintiff has failed to allege a substantive claim for which the
City could be liable. Moreover, the claims against the City must
also be dismissed because the plaintiff has failed to plead a
basis for municipal liability under Monell v. Dep’t of Soc.
Servs. of the City of New York, 436 U.S. 658 (1978). Monell
provides that “municipalities may be sued directly under § 1983
for constitutional deprivations inflicted upon private
individuals pursuant to a governmental custom, policy,
ordinance, regulation, or decision.” Batista v. Rodriguez, 702
F.2d 393, 397 (2d Cir. 1983) (citing Monell, 436 U.S. at 690–
91). Municipalities are not subject to liability under theories
of respondeat superior, but rather on the basis that their
policies or customs “inflict[ed] the injury upon the plaintiff.”

16

Id. “[T]o hold a city liable under § 1983 for the
unconstitutional actions of its employees, a plaintiff is
required to plead and prove three elements: (1) an official
policy or custom that (2) causes the plaintiff to be subjected
to (3) a denial of a constitutional right.” Id.; see also
Seymore, 2014 WL 641428, at *8;.
Monell only “extends liability to a municipal organization
where that organization’s failure to train, or the policies or
customs that is has sanctioned, led to an independent
constitutional violation.” Segal v. City of New York, 459 F.3d
207, 219 (2d Cir. 2006). Where, as here, a plaintiff does not
allege an underlying constitutional violation, there can be no
liability under Monell. Id.; see also Seymore, 2014 WL 641428,
at *8. In any event, the allegations attempting to link a policy
or custom to an injury are boilerplate and conclusory. The
Amended Complaint fails to state a claim against the City
because the plaintiff has not alleged any facts to connect his
asserted injuries to any training, policy, or custom on the part
of the City. See Seymore, 2014 WL 641428, at *8; Benavides v.
Grier, No. 09 CIV 8600 (JGK), 2011 WL 43521, at *3 (S.D.N.Y.
Jan. 6, 2011).
V.
Rule 15(a) provides that leave to file an amended complaint
should be granted “freely . . . when justice so requires.” Fed.

17

R. Civ. P. 15(a)(2); see also Foman v. Davis, 371 U.S. 178, 182
(1962) (“Rule 15(a) declares that leave to amend ‘shall be
freely given when justice so requires’; this mandate is to be
heeded.” (citation omitted)). The plaintiff has not asked for
leave to replead. However, the plaintiff is proceeding pro se
and has only amended his pleadings once. In the interests of
justice, the plaintiff is granted leave to file a second amended
complaint consistent with this Memorandum Opinion and Order
because it cannot be said that further amendment would be
futile. See Gonzalez v. J.P. Morgan Chase Bank, N.A., No. 16-CV02611 (JGK), 2017 WL 122993, at *12 (S.D.N.Y. Jan. 12, 2017).

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CONCLUSION
The Court has considered all of the arguments raised by the
parties. To the extent not specifically addressed, the arguments
are either moot or without merit. For the foregoing reasons, the
motion to dismiss is granted, and the plaintiff’s claims are
dismissed without prejudice and with leave to replead. Any
second amended complaint in this action is to be filed within
thirty (30) days of the date of this Memorandum Opinion and
Order. If no such amended complaint is filed, the Clerk is
directed to close this case.
The Clerk is directed to close all pending motions.
SO ORDERED.
Dated:

New York, New York
March 28, 2017

____________/s/______________
John G. Koeltl
United States District Judge

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