King et al v. Ponte et al

Filing 84

ORDER for 82 Report and Recommendations 53 Motion to Dismiss, Motion to Stay filed by Deputy Warden of Security Caputo, Decicco, Joseph Ponte, Deputy Warden of Security Rene, Monica Windley, Motions terminated: 53 MOTION to Dism iss the Amended Complaints. MOTION to Stay Discovery until the adjudication of the motion to dismiss filed by Deputy Warden of Security Caputo, Decicco, Joseph Ponte, Deputy Warden of Security Rene, Monica Windley. For the r easons stated above, the Court adopts Judge Moses's February 22, 2018 Report & Recommendation in its entirety, and Defendants' motion to dismiss is granted. As to leave to amend, 1. the claims of Garcia, Douglas, Rainey, Keaton, and Va ughn related to mold in the GRVC showers are dismissed with leave to amend; 2. Plaintiffs' claims related to backless stools are dismissed without leave to amend; 3. McNair's claim alleging that he was required to sleep on a yoga mat is di smissed with leave to amend; 4. Plaintiffs' claims related to a missed breakfast meal are dismissed without leave to amend. Any amended complaint must be filed by shall be filed by April 20, 2018. The Clerk of Court is directed to terminate the motion (Dkt. No. 53), and to mail a copy of this order to pro se Plaintiffs. (As further set forth in this Order.) (Signed by Judge Paul G. Gardephe on 3/19/2018) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LARRY McNAIR; ERIC KEATON;
MALIK RAINEY; ANTOINE GARCIA;
RAKEEM DOUGLAS; and DAVID
VAUGHN,
Plaintiffs,

USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:-------~----DATE FILED: '311 y] I

9

ORDER
16 Civ. 4646 (PGG)

-againstN.Y.C. D.O.C. COMMISSIONER
JOSEPH PONTE; G.R.V.C. WARDEN
MONICA WINDLEY; DEPUTY
WARDEN SECURITY RENE; DEPUTY
WARDEN SECURITY CAPUTO;
DEPUTY WARDEN SECURITY HILL;
C.O. DECICCO; C.O. STRONG; and C.O.
JANE DOE,
Defendants.

PAUL G. GARDEPHE, U.S.D.J.:
Prose Plaintiffs Larry McNair, Eric Keaton, Malik Rainey, Antoine Garcia,
Rakeem Douglas, and David Vaughn - each of whom is a current or former pretrial detainee at
the George R. Viemo Center ("GRVC") on Rikers Island- bring this action under 28 U.S.C. §
1983, asserting conditions-of-confinement claims arising out of their incarceration at the GRVC.
(McNair Am. Cmplt. (Dkt. No. 37); Keaton Second Am. Cmplt. ("SAC") (Dkt. No. 44); Rainey
Am. Cmplt. (Dkt. No. 34); GarciaAm. Cmplt. (Dkt. No. 31); Douglas Am. Cmplt. (Dkt. No. 32);
Vaughn Am. Cmplt. (Dkt. No. 33)) Plaintiffs jointly filed the initial Complaint on June 20, 2016
(Cmplt. (Dkt. No. 2)), but separately filed individual amended complaints after Chief Judge
McMahon issued a November 9, 2016 order to amend. (See Dkt. Nos. 28, 31-34, 36-37, 44)

Plaintiffs' separate amended complaints assert similar claims, but there is some variation in the
allegations and the defendants named in these pleadings. 1
On June 21, 2017, Commissioner Ponte, GRVC Warden Windley, Deputy Warden
Rene, Deputy Warden Caputo, and Corrections Officer Decicco moved to dismiss all six
amend~d complaints, arguing that (1) Plaintiffs fail to state a claim; (2) Plaintiffs fail to allege
any personal involvement by Defendants; and (3) McNair and Keaton cannot seek injunctive
relief because they are no longer confined at the GRVC. 2 (Def. Mot. (Dkt. No. 53)) Only
McNair, Keaton, and Vaughn filed oppositions to Defendants' motion to dismiss. (See Dkt. Nos.
60, 71, 74)
On September 13, 2017, this Court referred Defendants' motion to the assigned
magistrate judge for a Report and Recommendation ("R&R"). (Dkt. No. 70) On February 22,
2018, Magistrate Judge Barbara Moses issued a 24-page R&R recommending that Defendants'
motion to dismiss be granted. (R&R (Dkt. No. 82) at 23) For the reasons stated below, this
Court will adopt the R&R in its entirety.

1

Commissioner Ponte and Warden Windley are named as defendants by all six Plaintiffs,
Deputy Warden Rene is named as a defendant by Keaton and Douglas; Deputy Warden Caputo is
named as a defendant by McNair and Keaton; and Corrections Officer Decicco is named as a
defendant by Rainey, Garcia, Douglas, and Vaughn. (See Dkt. Nos. 31-34, 37, 44) Certain other
individuals listed as defendants in one or more of the amended complaints, including "Deputy
Warden Security Hill," "C.O. Strong," and "C.O. Jane Doe," were never served and have not
appeared in this action.
2

Defendants also moved to revoke McNair's in forma pauperis status and to dismiss his claims
on the ground that he had accumulated "more than three strikes under the Prisoner Litigation
Reform Act." (Def. Mot. (Dkt. No. 53) at 2) In an October 11, 2017 Order, this Court denied the
motion, finding that McNair could pursue his claims under the "imminent danger" exception.
(See Dkt. No. 77 at 3)
2

BACKGROUND

I.

PROCEDURAL IDSTORY
On June 20, 2016, Dushawn King- a pre-trial detainee at the GRVC - filed a

Complaint asserting three conditions-of-confinement claims under 42 U.S.C. § 1983. (See
Cmplt. (Dkt. No. 2)) The Complaint included, as an attachment, the names and signatures of
twenty additional pre-trial detainees (see id. at 3-4), and named as defendants New York City
Department of Corrections ("DOC") Commissioner Ponte, GRVC Warden Windley, Deputy
Warden Hill, Corrections Officer Decicco, and Corrections Officer Strong. (ML. at 1)
The Complaint alleged, "on behalf of all plaintiffs named herein," that beginning
in March 2016, "plaintiffs ... were subject to the toxic ingestion of mold from the shower areas
that was and could cause ... cancer[] and lung infection during daily showers[,] where the steam
from the hot water vaporizes, and is inhaled by all plaintiffs." (Id. at 6) The Complaint further
alleged that there were "pre[-]existing work orders to remove the [mold]" which were "never
completed ... by the defendants['] maintenance department." (@ The Complaint also alleged
that "plaintiffs are ... forced to sit on stools ... with no back support," which "causes plaintiffs
to walk with the hunchback syndrome," to "need the assistance of a cane," and to develop
hemorrhoids. (Id. at 6-7) The Complaint further alleged that, in June 2016, Officers Decicco
and Strong did not permit Plaintiffs to leave their cells after an eight hour period, which caused
Plaintiffs to miss breakfast. (Id. at 7)
Although the Complaint alleged a list of injuries, it did not link any particular
injury with any particular plaintiff. (See id. at 9 ("Plaintiffs have suffered an enormous amount
of emotional stress, and mental anguish, chest pains, back pains, [hemorrhoids], hunch back
syndrome, breathing problems, runny nose, scratchy throat, teary eyes, claustrophobia, anxiety,

3

nightmares, headaches, paranoia, visual and auditory hallucinations, cramps, [and] ambulation
problems[.]")) The Complai:pt also did not allege, with respect to the mold and stools issues, that
any particular defendant was personally involved in the alleged unconstitutional conduct. (See
id. at 6) Instead, the Complaint alleged that Commissioner Ponte, Warden Windley, and Deputy
Warden Rene (who was not named in the caption) were liable because they "did not use their
broad discretion in forming directives and policies [to require that] their subordinates operate
[the GRVC] within the confines of the United States Constitution and New York State and City
Laws." (Id. at 7-8)
On July 19, 2016, Chief Judge McMahon issued an order directing each plaintiff
- other than King - to pay the court filing fee or to file an in forma pauperis application and
authorization form. (Dkt. No. 5 at 1-2) The July 19, 2016 order also directed eachplaintiffexcept for King - to certify the Complaint, and warned plaintiffs that their claims would be
dismissed if they did not comply with the order within thirty days. (Id. at 2)
Eight plaintiffs -McNair, Keaton, Rainey, Garcia, Douglas, Vaughn, Justin
Camenello, and Jayme Rodriguez-complied with the July 19, 2016 order. (See Dkt. No. 28)
On November 9, 2016, Chief Judge McMahon issued an order dismissing the claims of the other
signatories to the Complaint, and directing the remaining nine plaintiffs (the eight plaintiffs who
complied with the July 19, 2016 order plus King) to file an amended complaint within 60 days.

Mat 1, 4)
The November 9, 2016 order also specified the Complaint's deficiencies, and
granted Plaintiffs leave to amend their complaint to "detail their claims":
Plaintiffs' assertions do not suggest that Defendants were deliberately indifferent
to an excessive risk to their health or safety. With respect to PlaintiflTs'] toxic
mold claim, Plaintiffs do not assert (1) how each of them have suffered from
exposure to the mold, (2) whether Defendants are aware that Plaintiffs have
4

become sick from the mold, or (3) how Defendants have ignored the risk of
Plaintiffs' being exposed to the mold.
As for Plaintiffs' stool claim, Plaintiffs do not state any facts detailing why
Defendants are requiring them to sit on a stool for prolonged periods of time and
whether Defendants are aware that this prolonged sitting has caused Plaintiffs to
suffer serious harm that Defendants are ignoring. Finally, as for Plaintiffs' cell
claim, they do not assert whether Defendants have refused to let them leave their
cells for prolonged periods without cause, on how many occasions, and how often
Plaintiffs have gone without a meal as a result of being locked in their cells.
(ML. at 3-4) Judge McMahon's order also instructed Plaintiffs that "the body of Plaintiffs'

amended complaint must tell the Court: who violated their federally protected rights; what facts
show that their federally protected rights were violated; when such violation occurred; where
such violation occurred; and why Plaintiffs are entitled to relief." @ at 5)
Between January 10, 2017 and February 14, 2017, Garcia, Douglas, Vaughn,
Rainey, Keaton, and McNair filed separate amended complaints. (Dkt. Nos. 31-34, 36, 37)
Camanello, Rodriguez, and King did not file amended complaints; accordingly, their claims were
dismissed. (See Dkt. Nos. 38 at 1; Dkt. No. 40 at 2) The case was assigned to this Court on
March 1, 2017.
On June 21, 2017, Defendants moved to dismiss all six amended complaints.
(Def. Mot. (Dkt. No. 53)) Only McNair, Keaton, and Vaughn filed oppositions to Defendants'
motion to dismiss. (See Dkt. Nos. 60, 71, 74) On September 13, 2017, this Court referred
Defendants' motion to Magistrate Judge Moses for a Report and Recommendation. (Dkt. No.
70) On February 22, 2018, Magistrate Judge Moses issued a 24-page R&R recommending that
Defendants' motion to dismiss be granted, but that Keaton, Rainey, Garcia, Douglas, and Vaughn
be given leave to amend their claims concerning the mold issue, and that McNair be given leave
to amend his claim that he was forced to sleep on a "yoga mat." (R&R (Dkt. No. 82) at 23)

5

Judge Moses's R&R gives notice that any objections are to be filed within
fourteen days from service of the R&R, and that "failure to file timely objections will preclude
appellate review." (Id. at 24) Only Keaton filed an objection to the R&R. (Dkt. No. 83)

II.

PLAINTIFFS' ALLEGATIONS3

A.

Mold in the Showers
Keaton, Rainey, Garcia, Douglas, and Vaughn allege that, beginning in March

2016, they were subjected to "the toxic ingestion of mold from the [GRVC] shower areas that
could cause ... cancer[], and lung infection during daily showers[,] where [] steam from the hot
water vaporizes, and is inhaled by [p]laintiff." (Keaton SAC (Dkt. No. 44) at 5; Rainey Am.
Cmplt. (Dkt. No. 34) at 4; Garcia Am. Cmplt. (Dkt. No. 31) at 4; Douglas Am. Cmplt. (Dkt. No.
32) at 4; Vaughn Am. Cmplt. (Dkt. No. 33) at 4) Plaintiffs further allege that "[t]here are preexisting work order[s] to remove [the mold]," which were "never completed ... by the
defendants via [their] maintenance department." (Keaton SAC (Dkt. No. 44) at 5)
Keaton, Rainey, Garcia, and Douglas do not allege that they suffered any specific
injuries as a result of their exposure to the mold. Vaughn claims that he has "a rash on [his] foot
from the mold in the showers." (Vaughn Am. Cmplt. (Dkt. No. 33) at 5)
No Plaintiff has alleged that any Defendant was aware of the mold or ignored the
risks associated with Plaintiffs' exposure to the mold.

3

"[I]n deciding a motion to dismiss a pro se complaint, it is appropriate to consider 'materials
outside the complaint to the extent that they are consistent with the allegations in the complaint,'
including 'documents that a prose litigant attaches to [his] opposition papers."' Pearson v.
Walden Univ., 144 F. Supp. 3d 503, 508 (S.D.N.Y. 2015) (internal citations omitted). In its
factual summary, the Court relies on Plaintiffs' complaints and documents that Plaintiffs filed in
opposition to Defendants' motion to dismiss, (See Dkt, Nos, 60, 72, 73)
6

B.

Backless Stools
All six plaintiffs allege that they were required to sit on backless stools in the

GRVC's day room for twelve to fourteen hours each day. (See McNair Am. Cmplt. (Dkt. No.
37) at 3; Keaton SAC (Dkt. No. 44) at 8; Rainey Am. Cmplt. (Dkt. No. 34) at 5; Garcia Am.
Cmplt. (Dkt. No. 31) at 5; Douglas Am. Cmplt. (Dkt. No. 32) at 5; Vaughn Am. Cmplt. (Dkt. No.
33) at 6) Keaton, Rainey, Garcia, and Douglas allege that sitting on these stools have extended
their spines, causing them to "walk with the hunchback syndrome," and to "need the assistance
of a cane." (Keaton SAC (Dkt. No. 44) at 8; Rainey Am. Cmplt. (Dkt. No. 34) at 5; Garcia Am.
Cmplt. (Dkt. No. 31) at 5; Douglas Am. Cmplt. (Dkt. No. 32) at 5) McNair similarly alleges that
sitting on the backless stools caused him to suffer "present and future long term back problems,
such as sciatica[,] slipped discs, [and] the hunchback syndrome." (McNair Am. Cmplt. (Dkt. No.
37) at 3) Vaughn states that he is "starting physical therapy for [his] back pains," but he does not
clearly identify the cause of his pain. (Vaughn Am. Cmplt. (Dkt. No. 33) at 5) No Plaintiff
alleges personal involvement by any Defendant in the alleged constitutional violation.

C.

Yoga Mat
McNair claims that he was forced to sleep on a "yoga mat[] that was not

manufactured for sleep purposes for months." (McNair Am. Cmplt. (Dkt. No. 37) at 3) In an
affidavit submitted in opposition to Defendants' motion to dismiss, McNair claims that he
"suffers from the 'hunchback syndrome' [and] needs a cane to ambulate," currently "ingests back
pain medication for his injuries," "wears a back brace," and "has to avoid stairs." (McNair Aff.
(Dkt. No. 60) at 3) McNair also states that he has been diagnosed with "sciatica," and that the
condition resulted from "sleeping on these floor mats." (McNair Aff. (Dkt. No. 60) at 4)

7

McN air also submitted medical records showing that he uses a cane, wears a back brace, and has
been treated for back pain. (Mk at 9-13)

D.

Missed Breakfast
Garcia, Douglas, Rainey, Keaton, and McNair allege that, on one occasion, they

were not permitted to leave their cells after an eight-hour period, causing them to miss breakfast.
(McNair Am. Cmplt. (Dkt. No. 37) at 3; Keaton SAC (Dkt. No. 44) at 8; Rainey Am. Cmplt.
(Dkt. No. 34) at 5; GarciaAm. Cmplt. (Dkt. No. 31) at 5-6; Douglas Am. Cmplt. (Dkt. No. 32) at
5-6) Garcia, Douglas, Rainey, and Keaton claim that this incident occurred in June 2016, and
assert that Officers Decicco and Strong did not permit Plaintiffs to leave their cells. (Keaton
SAC (Dkt. No. 44) at 8; Rainey Am. Cmplt. (Dkt. No. 34) at 5; Garcia Am. Cmplt. (Dkt. No. 31)
at 5-6; Douglas Am. Cmplt. (Dkt. No. 32) at 5-6) McNair alleges that this incident occurred in
April 2016, and states that it was "C.O. Jane Doe" who refused to permit McNair to go to
breakfast. (McNair Am. Cmplt. (Dkt. No. 37) at 3)

DISCUSSION
I.

LEGAL STANDARD
A.

Review of Magistrate Judge's Report and Recommendation
In reviewing a magistrate judge's 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)(l). Under 28 U.S.C. § 636(b)(l) and Fed. R. Civ. P.
72(b), a party may submit objections to a magistrate judge's R&R. Any objections must be
"specific" and "written," and must be made "[w]ithin 14 days after being served with a copy of
the recommended disposition." Fed. R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(l).

8

'"The district judge evaluating a magistrate judge's recommendation may adopt
those portions of the recommendation, without further review, where no specific objection is
made, as long as they are not clearly erroneous.'" Gilmore v. Comm'r of Soc. Sec., No. 09 Civ.
6241 (RMB) (FM), 2011 WL 611826, at *1 (S.D.N.Y. Feb. 18, 2011) (quoting Chimarev v. TD
Waterhouse Investor Servs., Inc., 280 F. Supp. 2d 208,212 (S.D.N.Y. 2003)). When a timely
objection has been made to the Magistrate Judge's recommendations, "[the district court judge]
shall make a de novo determination of those portions of the report or specified proposed findings
or recommendations to which objection is made." 28 U.S.C. § 636(b)(l).
"' [T]o the extent ... that the [objecting] party makes only conclusory or general
arguments, or simply reiterates the original arguments,"' however, '"the Court will review the
[R&R] strictly for clear error."' DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333,339 (S.D.N.Y.
2009) (quoting IndyMac Bank, FSB v. Nat'l Settlement Agency, Inc., No. 07 Civ. 6865 (LTS)
(GWG), 2008 WL 4810043, at *1 (S.D.N.Y. Oct. 31, 2008)); see also Edwards v. Fischer, 414
F.Supp.2d 342,347 (S.D.N.Y. 2006) ("[W]here objections are merely perfunctory responses
argued in an attempt to engage the district court in a rehashing of the same arguments set forth in
the original [pleadings], reviewing courts should review a report and recommendation for clear
error.") (internal quotation marks omitted). Furthermore, although "[t]he objections of parties
appearing pro se are generally accorded leniency and should be construed to raise the strongest
arguments that they suggest, ... even a prose party's objections to a Report and
Recommendation must be specific and clearly aimed at particular findings in the magistrate's
proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior
argument." DiPilato, 662 F. Supp. 2d at 340 (internal quotation marks and citations omitted).

9

Here, only Keaton filed an objection to the R&R (Dkt. No. 83), and his objection
is a perfunctory attempt to engage the Court in a rehashing of the same arguments set forth in his
pleading. (See id. at 1 ("PlainitffKeaton bring[s] this motion objecting [to the R&R] on the
grounds of tort liabilities."); id. ("These acts are deliberate indifferen[ce] [because] the[re] are
preexisting work-orders to remove [an] a[s]bestos like substance, [which were] never attempted
[] or completed to be removed by defendants[,] ... [and] subject[ing] Plaintiff Keaton to toxic
ingestion of mold from the shower area could cause long term cancerous lung infection."); id. at
2 ("Plaintiff Keaton has been expose[d] to an umeasonable risk to his future health .... ").
Accordingly, the Court need not conduct a de novo review, and will review the R&R for clear
error.

B.

Motion to Dismiss Standard
"To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcroft v. Igbal,
556 U.S. 662,678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,570 (2007)). "In
considering a motion to dismiss ... the court is to accept as true all facts alleged in the
complaint," Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229,237 (2d Cir. 2007) (citing
Dougherty v. Town ofN. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir. 2002)),
and must "draw all reasonable inferences in favor of the plaintiff." Id. (citing Fernandez v.
Chertoff, 471 F.3d 45, 51 (2d Cir. 2006)).
A complaint is inadequately pied "if it tenders 'naked assertion[ s]' devoid of
'further factual enhancement,"' Igbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557), and
does not provide factual allegations sufficient "to give the defendant fair notice of what the claim

10

is and the grounds upon which it rests." Port Dock & Stone Corp. v. Oldcastle Northeast, Inc.,
507 F.3d 117, 121 (2d Cir. 2007) (citing Twombly, 550 U.S. at 545).
A "pro se complaint ... [is] interpret[ed] ... to raise the 'strongest [claims] that
[it] suggest[s]."' Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (quoting Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471,474 (2d Cir. 2006) ~ curiam)); see Weixel v. Bd. of Educ. of
City of New York, 287 F.3d 138, 145-46 (2d Cir. 2002) ("When considering motions to dismiss a
prose complaint such as this, 'courts must construe [the complaint] broadly.... "' (quoting Cruz
v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000))). "However, although prose filings are read
liberally and must be interpreted 'to raise the strongest arguments that they suggest,' a pro se
complaint must still 'plead sufficient facts to state a claim to relief that is plausible on its face."'
Wilder v. United States Dep't of Veterans Affairs, 175 F. Supp. 3d 82, 87 (S.D.N.Y. 2016)
(internal citations omitted). Moreover, "the court need not accept as true 'conclusions of law or
unwarranted deductions of fact."' Whitfield v. O'Connell, No. 09 Civ. 1925 (WHP), 2010 WL
1010060, at *4 (S.D.N.Y. Mar. 18, 2010) (quoting First Nationwide Bank v. Gelt Funding Corp.,
27 F.3d 763, 771 (2d Cir. 1994)); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)
("[T]hreadbare recitals of a cause of action, supported by mere conclusory statements, do not
suffice [to establish entitlement to relief].").

II.

ANALYSIS 4
All of Plaintiffs' claims relate to the conditions of confinement at the GRVC.

Judge Moses's thorough and well-reasoned R&R concludes that Defendants' motion to dismiss

4

In their oppositions to Defendants' motion to dismiss, Vaughn and Keaton allege- for the first
time - that they were deprived of exercise on the same day that they were deprived of breakfast.
(Keaton Opp. (Dkt. No. 71) at 3 ("Defendants Decicco [and] Strong ... didn't let Keaton ... out
of [his] cell[] in that 8 hour period[], [and] took it upon them[ selves] to deny [him] of a life
necessity.,. [a]nd of outside exercise."); Vaughn Opp. (Dkt. No. 74) at 4 ("Defendants Decicco
11

should be granted on all claims, but that Keaton, Rainey, Garcia, Douglas, and Vaughn should be
given leave to amend their mold-related claims, and that McNair should be given leave to amend
his claim that he was forced to sleep on a "yoga mat." (R&R (Dkt. No. 82) at 23) The Court
finds no clear error in Judge Moses's recommendation.
A.

Applicable Law

1.

Conditions of Confinement Claims

"A pretrial detainee 's claims of unconstitutional conditions of confinement are
governed by the Due Process Clause of the Fourteenth Amendment," which requires "a showing
that the officers acted with deliberate indifference to the challenged conditions." Darnell v.
Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). To state a deliberate indifference claim under Section
1983, a plaintiff must plead both objective and subjective elements. Id.
The objective element requires an inmate to allege conditions that, "either alone
or in combination, pose an unreasonable risk of serious damage to his health, which includes the
risk of serious damage to physical and mental soundness." Id. at 30 (internal quotation marks
and citations omitted). In determining whether a deprivation is "sufficiently serious," the court
should not apply a "static test," but rather evaluate "the conditions themselves .. : in light of
contemporary standards of decency." Id. (internal quotation marks and citations omitted).

[and] Strong ... didn't let Vaughn ... out of [his] cell[] in that 8 hour period[], [and] took it
upon them[selves] to deny [him] of a life necessity ... [a]nd of outside exercise.")) Judge Moses
observed that "[b]ecause these are new claims ... , they are not properly considered in
connection with [D]efendants' motion to dismiss [P]laintiffs' existing claims." Judge Moses
further concluded that "even if [she] were to analyze them on the merits, ... they fail to state a
constitutional claim." (R&R (Dkt. No. 82) at 23) While "[e]xercise is one of the basic human
needs protected by the Eighth Amendment, ... a deprivation of exercise amounts to a
constitutional violation only where an inmate is denied all meaningful exercise for a substantial
period of time." Ruggiero v. Prack, 168 F. Supp. 3d 495,519 (W.D.N.Y. 2016) (internal
quotation marks and citation omitted). Here, Vaughn and Keaton claim that they were denied
exercise for one day, and this claim does not rise to the level of a constitutional violation,
12

"[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)).
The subjective element requires an inmate to allege that "the defendant-official
acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable
care to mitigate the risk that the condition posed to the pretrial detainee[,] even though the
defendant-official knew, or should have known, that the condition posed an excessive risk to
health or safety." Id. at 35. An allegation of "mere negligence" does not suffice, id. at 36, and
alleged "reckless or intentional action (or inaction)" is only sufficient if it is "the product of a
voluntary act (or omission) by the official." Id. at 36 n.16.

2.

Personal Involvement

"It is well settled that, in order to establish a defendant's individual liability in a

suit brought under§ 1983, a plaintiff must show ... the defendant's personal involvement in the
alleged constitutional deprivation." Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir.
2013). Furthermore, "[b]ecause vicarious liability is inapplicable to ... § 1983 suits," Iqbal, 556
U.S. at 676, "supervisors cannot be held liable based solely on the alleged misconduct of their
subordinates." Vasquez v. Reilly, No. 15-CV-9528 (KMK), 2017 WL 946306, at *11 (S.D.N.Y.
Mar. 9, 2017). "[A] plaintiff must plead that each Government-official defendant, through the
official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676.
"Conclusory accusations regarding a defendant's personal involvement in the alleged violation,
standing alone, are not sufficient." Vasquez, 2017 WL 946306, at* 11.

13

B.

Mold-Related Claims
Judge Moses concludes that the mold-related claims alleged by Keaton, Rainey,

Garcia, Douglas, and Vaughn should be dismissed, because "plaintiffs fail to state facts making
any of the defendants [individually] liable for the condition." (R&R (Dkt. No. 82) at 15) The
Court agrees with that assessment.
As to Vaughn, Judge Moses correctly observes that he "does not allege any facts
as to the conduct of any [individual] defendant." (Id. at 16; see also Vaughn Am. Cmplt. (Dkt.
No. 33) at 3-5) Because Vaughn has not pied any facts "show[ing] [a] defendant's personal
involvement in the alleged constitutional deprivation," Grullon, 720 F.3d at 139, his mold-related
claim is patently insufficient.
As to Keaton, Rainey, Garcia, and Douglas, Judge Moses correctly observes that
they only allege "in extremely general terms, that the most senior defendants - Commissioner
Ponte, Warden Windley, and Deputy Warden Rene - failed to require their subordinates to
comply with the Constitution." (R&R (Dkt. No. 82) at 16; see also Keaton SAC (Dkt. No. 44) at
9 ("Commissioner Joseph Ponte, G.R.V.C. Warden Monica Windley, and Deputy Warden of

Security Rene are liable ... in that they didn't[,] in their[] discretion in forming directives and
policies[,] [require] that their subordinates operate [the GRVC] within the confines of the United
States Constitution...."); Rainey Am. Cmplt. (Dkt. No. 34) at 5; Garcia Am. Cmplt. (Dkt. No.
31) at 6; Douglas Am. Cmplt. (Dkt. No. 32) at 6) Such conclusory allegations are insufficient to
establish the personal involvement of supervisory defendants in the alleged constitutional
violation. See Lindsey v. Butler, 43 F. Supp. 3d 317,330 (S.D.N.Y. 2014) ("In order to hold
supervisors liable for creating a custom or policy fostering a constitutional violation, courts in
this Circuit have required that plaintiffs plead more than conclusory allegations of the existence

14

of the custom or policy.") (collecting cases); Miner v. Goord, 646 F. Supp. 2d 319,326
(N.D.N.Y. 2009) ("conclusory allegations" that supervisor "created a policy which permitted
unconstitutional practices to occur" were "insufficient to show [] personal involvement" in
alleged constitutional deprivation), aff'd, 354 F. App'x 489 (2d Cir. 2009). Accordingly, these
plaintiffs' mold-related will be dismissed.
Judge Moses recommends, however, that these five plaintiffs be given leave to
amend their mold-related claims. (R&R (Dkt. No. 82) at 17-18) Judge Moses concludes that
amendment would not be futile because (1) "[c]ourts have found that 'allegations of exposure to
black mold may, in certain circumstances, satisfy the objective element of [a conditions of
confinement] claim,"'

fuL. at 15 (quoting Reid v. Nassau Cty. Sheriff's Dep't, No.

13-CV-1192

SJF SIL, 2014 WL 4185195, at* 14 n.14 (E.D.N.Y. Aug. 20, 2014) (collecting cases))), and
(2) plaintiffs allege that "work orders [to remove the mold] existed but were not executed." (Id.
at 17) The Court agrees. Accordingly, Keaton, Rainey, Garcia, Douglas, and Vaughn will be
given one final opportunity to allege facts showing that (1) the mold in the showers has caused,
or poses an unreasonable risk of causing, serious damage to their own health; and (2) that each
supervisory defendant intentionally permitted the alleged condition to exist, or recklessly failed
to act with reasonable care to mitigate the risk that the condition posed to Plaintiffs, even though
the supervisory defendant knew, or should have known, that the condition posed an excessive
risk to Plaintiffs' health or safety. Darnell, 849 F.3d at 30, 35.

C.

Backless Stools
Judge Moses recommends that Plaintiffs' claims related to the backless stools be

dismissed, because Plaintiffs' allegations do not satisfy either the objective prong or the
subjective prong of a conditions-of-confinement claim. (R&R (Dkt. No. 82) at 18-19) This

15

Court agrees. As an initial matter, Judge Moses correctly observes that, "[a]lthough some of
these plaintiffs claim in conclusory terms that they were 'forced' to sit on these stools, ... [n]o
plaintiff alleges that he is unable to stand, to stretch, or to move around the day room." (IQ,_ at
18) Accordingly, "a more plausible reading of their allegations is that no better furniture was
available for them to sit on." (@
With respect to the objective prong, Judge Moses correctly notes that '"the
Constitution does not mandate comfortable prisons'" (id. at 19 (quoting Phelps v. Kapnolas, 308
F.3d 180, 185 (2d Cir. 2002)), and concludes that "offering only backless stools to sit on in the
day room is [not] sufficiently serious, in light of contemporary standards of decency, to rise to
the level of a Fourteenth Amendment violation." (@ The Court finds no error in that
conclusion. See Tarpley v. Stouffer, No. CIV.A. GLR-13-522, 2014 WL 768838, at *1, 7 (D.
Md. Feb. 21, 2014) (holding that "[n]one of the claims asserted [by plaintiff] amount to a
deprivation of minimal life necessities" where plaintiff claimed, inter alia, that the recreation
room contained "seating for only 16 people," and that "on most nights there [we]re more than 40
inmates crowded into the room," making it '"standing room only"'); Patin v. LeBlanc, No.
CIV.A. 11-3071, 2012 WL 3109402, at *14 (E.D. La. May 18, 2012) (holding that plaintiff had
"not alleged a violation under the objective component of the Eighth Amendment" where he
complained, inter alia, of "reduced [] available seating per inmate" and the lack of "chairs or
tables in the cells for an inmate to use when seating [wa]s not available in the recreation area"),
report and recommendation adopted, No. CIV.A. 11-3071, 2012 WL 3109398 (E.D. La. July 31,
2012).
With respect to the subjective prong, Judge Moses concludes that, even if
Plaintiffs' allegations met the objective prong of a Fourteenth Amendment claim, their claims

16

"would nonetheless fail," because they do not explain "how any of the defendants they have sued
was personally involved in creating (or failing to remediate) the condition complained of, much
less that any of them acted with a 'sufficiently culpable state of mind."' (R&R (Dkt. No. 82) at
19 (quoting Darnell, 849 F.3d at 35)) The Court also finds no error in that conclusion.
Judge Moses recommends that these claims be dismissed with prejudice. (.lfl)
The Court agrees that amendment of these claims would be futile, because the provision of only
backless stools in the day room does not rise to a constitutional violation. Accordingly, these
claims will be dismissed with prejudice.

D.

Yoga Mat
Judge Moses concludes that McNair's claim that he was required to sleep on a

yoga mat should be dismissed, because McNair has not alleged facts "demonstrating the personal
involvement of any of the defendants he names." (R&R (Dkt. No. 82) at 20) The Court agrees.
As Judge Moses observes, McNair alleges that former Commissioner Ponte, Warden Windley,
and Deputy Warden Caputo "forced [him] to sleep on [a] yoga mat[]" (McNair Cmplt. (Dkt. No.
37) at 3), but this allegation "lacks any factual detail explaining what these defendants actually
did." (R&R (Dkt. No. 82) at 20) McNair does not allege that any of these officials "personally
required [him] to sleep on a yoga mat, directed others to do so, or even knew what type of
bedding [he] was given." (.lfl at 20-21) Nor does he allege that "these defendants created or
enforced a policy requiring inmates to sleep on yoga mats at the GRVC." (Id. at 21)
Furthermore, although McNair alleges that he filed a grievance regarding the yoga mat in April
2016, and that this grievance was "sent to Deputy Warden of Security Caputo, Warden Monica
Windley, and Commissioner Joseph Ponte" (McNair Cmplt. (Dkt. No. 37) at 6-7),
"[Defendants'] mere receipt of [plaintiff's] grievance, and their subsequent inaction, are

17

insufficient to establish the personal involvement of these defendants." Alvarado v. Westchester·

ili, 22 F. Supp. 3d 208,215 (S.D.N.Y. 2014).

Accordingly, McNair's claim related to the yoga

mat must be dismissed.
Judge Moses recommends, however, that McNair be given leave to amend this
claim, "[g]iven [its] nature," and the "relatively robust injury allegations." (R&R (Dkt. No. 82)
at 21) With respect to the "nature of the claim," Judge Moses states that McNair's allegations,
while "short on specifics," appear to "satisfy the pleading threshold for the objective prong of a
Fourteenth Amendment conditions-of-confinement claim."

ffih at 20)

The Court agrees.

The Second Circuit has held that, as a regular method of housing inmates, forcing
prisoners or pre-trial detainees to sleep on mattresses placed on the floor does not
pass constitutional muster, Lareau v. Manson, 651 F.2d 96, 107 (2d Cir.1981), but
[that] this should not be considered a~ ~rule, see Peterkin v. Walker, 101 F.3d
681, 1996 WL 146530, at *1 (table) (2d Cir.1996) .... A proper analysis requires
this Court to consider all the particular circumstances of the case. See Bell v.
Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).
Brown v. McGinnis, No. 05-CV-758S, 2012 WL 267638, at *6 (W.D.N.Y. Jan. 30, 2012). Here,
as Judge Moses observes, McNair alleges that he was deprived of a standard prison mattress
"'designed for sleep purposes"' for "'months,"' despite "his pre-existing back problems." (R&R
(Dkt. No. 82) at 20 (quoting McNair Am. Cmplt. (Dkt. No. 37) at 3)) These allegations plausibly
plead conditions "pos[ing] an unreasonable risk of serious damage to [McNair's] health."
Darnell, 849 F.3d at 30. Accordingly, McNair will be given one final opportunity to allege facts
showing that each defendant-official acted intentionally to impose the alleged condition, or
recklessly failed to act with reasonable care to mitigate the risk that the condition posed to
McNair even though the supervisory defendant knew, or should have known, that the condition
posed an excessive risk to health or safety. Id. at 3 5.

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E.

Missed Breakfast
Judge Moses recommends that Garcia, Douglas, Rainey, Keaton, and McNair's

claim that they missed breakfast on one occasion be dismissed, because "no plaintiff alleges that
he missed more than one breakfast," and "[i]t is well established that a single missed meal cannot
satisfy [] the objective prong of a conditions-of-confinement claim." (R&R (Dkt. No. 82) at 22)
The Court agrees with that assessment. While "[t]he Eighth Amendment requires that prisoners
be provided with 'nutritionally adequate food,"' Edwards v. Hom, No. 10 CIV. 6194 (RJS)
(JLC), 2012 WL 760172, at *8 (S.D.N.Y. Mar. 8, 2012) (quoting Robles v. Coughlin, 725 F.2d
12, 15 (2d Cir. 1983)), "[c]ourts have found the Eight Amendment to be implicated only where a
prisoner's allegations involve a serious and continued deprivation of nutritionally adequate
food." Id. at *8-9 (dismissing Section 1983 "claims regarding deprivation of meals" where
plaintiff alleged that that he was deprived of adequate food "on four separate dates over a span of
six months," including one "morning meal" and one "afternoon meal"). Here, no plaintiff has
alleged "a serious and continued deprivation of nutritionally adequate food." Id. at *8.
Accordingly, the missed breakfast claim asserted by Garcia, Douglas, Rainey, Keaton, and
McNair will be dismissed.
Judge Moses recommends that this claim be dismissed with prejudice. (R&R
(Dkt. No. 82) at 22) The Court agrees that amendment of this claim would be futile.
Accordingly, it will be dismissed with prejudice.

CONCLUSION
For the reasons stated above, the Court adopts Judge Moses's February 22, 2018
Report & Recommendation in its entirety, and Defendants' motion to dismiss is granted. As to
leave to amend,

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1. the claims of Garcia, Douglas, Rainey, Keaton, and Vaughn related to mold in
the GRVC showers are dismissed with leave to amend;
2. Plaintiffs' claims related to backless stools are dismissed without leave to
amend;
3. McNair's claim alleging that he was required to sleep on a yoga mat is
dismissed with leave to amend;
4. Plaintiffs' claims related to a missed breakfast meal are dismissed without
leave to amend.
Any amended complaint must be filed by shall be filed by April 20, 2018.
The Clerk of Court is directed to terminate the motion (Dkt. No. 53), and to mail a
copy of this order to prose Plaintiffs.
Dated: New York, New York
March J_J_, 2018
SO ORDERED.

Paul G. Gardephe
United States District Judge

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