White v. New York City Dept. of Corrections et al
OPINION AND ORDER re: 52 MOTION to Dismiss the Amended Complaint Pursuant to Federal Rules of Civil Procedure 12(c). filed by Captain Antoine, Capt. Korporan, Karen Collins, City of New York, 59 MOTION TO JOIN MOTION TO DISM ISS AMENDED COMPLAINT PURS. TO FRCIVP. 12(C). filed by Santos. For the foregoing reasons, Defendants motions are granted, and the Complaint is dismissed in its entirety. The Clerk of Court is directed to close the motions at Docket Nos. 52 and 59, to leave this case open for resolution of the pro se Defendant's crossclaim and to mail a copy of this Order to pro se Plaintiff and pro se Defendant. (Signed by Judge Lorna G. Schofield on 8/17/2017) (kgo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CITY OF NEW YORK, et al.,
16 Civ. 6183 (LGS)
OPINION AND ORDER
LORNA G. SCHOFIELD, District Judge:
Pro se Plaintiff Erik White commenced this action under 42 U.S.C. § 1983 against the
City of New York, Assistant Deputy Chief of Corrections Karen Collins, Captain Korporan,
Captain Antoine and former Correction Officer Carlos Santos, who is appearing pro se.
Defendants move to dismiss the First Amended Complaint under Federal Rule of Civil
Procedure 12(c). For the reasons that follow, Defendants’ motions are granted.
The facts below are drawn from the Complaint, the First Amended Complaint and
Plaintiff’s statements at the Rule 16 conference that was held on May 2, 2017. Given the
“special solicitude” afforded pro se litigants, Plaintiff’s factual allegations from all of these
sources are considered to be a part of the Complaint, and these sources individually or together
are referred to in this Opinion as the “Complaint.” See Williams v. Corr. Officer Priatno, 829
F.3d 118, 122 (2d Cir. 2016); see also White v. Schriro, No. 16 Civ. 6769, 2017 WL 3268202, at
*2 (S.D.N.Y. July 31, 2017) (“The court may also consider materials outside the complaint to the
extent that they are consistent with the allegations in the complaint.”) (internal quotation marks
omitted). All factual allegations are assumed to be true, and all reasonable inferences are drawn
in Plaintiff’s favor as the non-moving party. Christiansen v. Omnicom Grp., Inc., 852 F.3d 195,
199 (2d Cir. 2017).
This action arose from an incident that occurred in December 2015, while Plaintiff was a
pretrial detainee at Riker’s Island. Plaintiff was in protective custody in a special housing area,
where he was segregated from other inmates. Defendant Officer Santos escorted Plaintiff’s
housing area to the barbershop. While Plaintiff was in the barbershop, Officer Santos allowed a
group of adolescent inmates to enter and asked the adult inmates to allow the adolescents to get
their haircuts first. Because Plaintiff was in protective custody, Officer Santos should not have
exposed Plaintiff to other inmates in the barbershop, but he “wanted to save time and cut
An altercation involving some of the adolescent inmates occurred in the barbershop. To
restore order, unnamed officers wearing gas masks sprayed a chemical agent on the adolescents
who were directly involved in the incident. Officers then ordered Plaintiff and the other inmates
to lay face down on the floor, where Plaintiff came into contact with the chemical agent.
Defendant Captain Korporan, the area captain, and Defendant Deputy Chief Collins, were among
the senior prison officials who were present in the barbershop.
Plaintiff was brought to a holding cell in a decontamination intake area where Defendant
Captain Antoine was the intake captain on duty. Deputy Chief Collins “had been present and
fully aware of the situation” but she “soon became scarce without assuming control . . . .” While
Plaintiff was in the holding cell, he “continued to hack uncontrollably as [he] breathed in the
chemicals from [his] skin and [his] clothing.” Plaintiff also “regurgitated phle[g]m and saliva, as
well as endured breathing complications and dizziness.” Plaintiff’s distress was obvious, and
officers who are not defendants repeatedly inquired about Plaintiff’s well-being and brought him
In the hours after the incident, Plaintiff continually asked prison officials, including
Captain Antoine, for permission to take a shower and for medical attention. At some point that
day, Defendant Korporan and an unnamed captain came to Plaintiff’s holding cell and asked him
to give a written statement regarding the incident. Plaintiff declined and again requested medical
attention and a shower. Defendant Korporan told Plaintiff that the clinic was crowded with
individuals who had been directly involved in the incident, “but she would see what she could
Approximately six hours after the incident, Plaintiff was taken to the clinic for medical
treatment. He was taken back to the clinic some time that night “because of [his] condition” and
prescribed Maalox and Ibuprofen. Plaintiff was returned to his housing area where he was
locked in his cell for over 24 hours while the facility was on lockdown. He was permitted to
shower only after the lockdown was lifted. Plaintiff suffers from eczema, which was
exacerbated by the chemical agent. At the Rule 16 conference, Plaintiff stated that he was given
a skin cream to alleviate his symptoms and “was okay after . . . about a week.”
Federal Rule of Civil Procedure 12(c) permits a party to move for judgment on the
pleadings “[a]fter the pleadings are closed -- but early enough not to delay trial.” The same
standard that applies to motions to dismiss under Rule 12(b)(6) applies to motions under Rule
12(c). See Mantena v. Johnson, 809 F.3d 721, 727–28 (2d Cir. 2015). “[T]he only facts to be
considered are those alleged in the complaint, and the court must accept them, drawing all
reasonable inferences in the plaintiff’s favor, in deciding whether the complaint alleges sufficient
facts to survive.” Doe v. Columbia Univ., 831 F.3d 46, 48 (2d Cir. 2016). To withstand
dismissal, a pleading “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)). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id. (citation omitted).
Courts must “liberally construe pleadings and briefs submitted by pro se litigants, reading
such submissions to raise the strongest arguments they suggest.” McLeod v. Jewish Guild for the
Blind, --- F.3d ----, No. 15 Civ. 2898, 2017 WL 3044626, at *2 (2d Cir. July 19, 2017) (citation
omitted). “The policy of liberally construing pro se submissions is driven by the understanding
that implicit in the right to self-representation is an obligation . . . of the court to make reasonable
allowances to protect pro se litigants from inadvertent forfeiture of important rights because of
their lack of legal training.” Id. (citation omitted).
Construing the Complaint liberally, it seeks to allege a number of constitutional
violations under 42 U.S.C. § 1983 for deliberate indifference to serious medical needs and safety,
a violation of the Equal Protection Clause of the Fourteenth Amendment and municipal liability
against the City for failure to train, as well as negligence under New York law. As explained
below, the § 1983 claims are dismissed for failure to state a claim, and the Court declines to
exercise supplemental jurisdiction over the state law claim.
A. Federal Claims Under § 1983
“Section 1983 is not itself a source of substantive rights, but merely provides a method
for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271 (1994)
(internal quotation marks omitted). To establish a claim under § 1983, a plaintiff must show “(1)
that some person has deprived him of a federal right, and (2) that the person who has deprived
him of that right acted under color” of state law. Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005)
(internal quotation marks omitted). “The first step in any such claim is to identify the specific
constitutional right allegedly infringed.” Albright, 510 U.S. at 271. Here, the factual allegations
in the Complaint can be construed to allege § 1983 claims of deliberate indifference to serious
medical needs and safety, a violation of the Equal Protection Clause and municipal liability
against the City of New York.
a. Deliberate Indifference to Serious Medical Needs
The deliberate indifference claim is dismissed because the Complaint does not plead
sufficient facts. To state a claim for deliberate indifference to serious medical needs under
§ 1983, a plaintiff must satisfy a two-prong test. The first prong is objective: “the alleged
deprivation of adequate medical care must be sufficiently serious.” Spavone v. N.Y. State Dep’t
of Corr. Servs., 719 F.3d 127, 139 (2d Cir. 2013) (internal quotation marks omitted). A court
must consider “how the offending conduct is inadequate and what harm, if any, the inadequacy
has caused or will likely cause the prisoner.” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir.
2006); accord Candelario v. Quality Choice Corr. Healthcare, No. 16 Civ. 2083, 2017 WL
3049553, at *4 (S.D.N.Y. July 18, 2017). To satisfy the first prong, “the inmate must show that
the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his
health.” Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013). The objective prong is the same
regardless of whether the plaintiff is a pretrial detainee or a prisoner. Feliciano v. Anderson, No.
15 Civ. 4106, 2017 WL 1189747, at *10 (S.D.N.Y. Mar. 30, 2017) (citing Darnell v. Pineiro,
849 F.3d 17, 30 (2d Cir. 2017)).
The second prong is subjective and requires a court to consider the defendant’s mental
state. Under the second prong, “a defendant possesses the requisite mens rea when he acts or
fails to act under circumstances in which he knew, or should have known, that a substantial risk
of serious harm to the pretrial detainee would result.” Feliciano, 2017 WL 1189747, at *13
(applying Darnell to a deliberate indifference to serious medical needs claim under § 1983). A
defendant’s “actions [must be] more than merely negligent.” Id. (quoting Salahuddin, 467 F.3d
Plaintiff alleges that he came into contact with a chemical agent that caused him to cough
uncontrollably, continually cough up phlegm and saliva, and suffer breathing complications,
dizziness and eczema. The Complaint also describes the care that Plaintiff received -- medical
attention within six hours of the incident; a second visit to the infirmary on the night of the
incident (when he was prescribed Maalox and Ibuprofen); permission to shower to
decontaminate himself approximately 24 hours later; and cream for his eczema. The Complaint
does not allege that any of Plaintiff’s symptoms were long-lasting or permanent.
Construing the alleged facts in Plaintiff’s favor, the Complaint fails to satisfy the
objective prong of the deliberate indifference test. Where, as here, “a prisoner alleges a
temporary delay or interruption in the provision of otherwise adequate medical treatment, it is
appropriate to focus on the challenged delay or interruption in treatment rather than the
prisoner’s underlying medical condition alone in analyzing whether the alleged deprivation is, in
objective terms, sufficiently serious . . . .” Cuffee v. City of New York, No. 15 Civ. 8916, 2017
WL 1134768, at *6 (S.D.N.Y. Mar. 27, 2017) (internal quotation marks omitted). “[A] short
interruption of care, even if the underlying medical condition is serious, does not constitute a
serious medical need where the ‘alleged lapses in treatment are minor.’” Id. (alterations in
original) (quoting Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003)). “However, allegations
that the defendant’s delay in treating a minor or ordinary medical condition can nevertheless
become a constitutional violation if the condition worsens [as a result of the delay] and creates a
substantial risk of injury.” Id. (internal quotation marks omitted and alterations in original).
Here, the basis for the deliberate indifference claim is that Plaintiff’s medical treatment
was delayed, not that it was inadequate. As pleaded, the delay that Plaintiff experienced does not
rise to the level of a constitutional violation. Feliciano, 2017 WL 1189747, at *11 (quoting
Demata v. N.Y. State Corr. Dep’t of Health Servs., 198 F.3d 233 (2d Cir. 1999) (unpublished))
(“Although a delay in providing necessary medical care may . . . constitute deliberate
indifference, [the Second Circuit] has reserved such a classification for cases in which, for
example, officials deliberately delayed care as a form of punishment; ignored a ‘life-threatening
and fast-degenerating’ condition for three days; or delayed major surgery for over two years.”);
Valdiviezo v. City of New York, No. 15 Civ. 3902, 2017 WL 1191528, at *4 (S.D.N.Y. Mar. 29,
2017) (same and collecting cases).
The Complaint does not allege that the delay in treatment caused or worsened Plaintiff’s
injury. See, e.g., Valdiviezo, 2017 WL 1191528, at *5 (dismissing a deliberate indifference
claim where plaintiff did not allege any injury as a result of the delay); Smith v. City of New
York, No. 15 Civ. 7910, 2016 WL 7471334, at *4–5 (S.D.N.Y. Dec. 28, 2016) (dismissing a
deliberate indifference claim where plaintiff failed to allege that an approximately four and a half
hour delay “either caused or exacerbated his medical condition” and collecting cases). Even
assuming the chemical agent aggravated Plaintiff’s eczema, the Complaint suggests that, at
worst, the delay temporarily exacerbated Plaintiff’s pre-existing skin condition, which itself does
not constitute a serious medical need under Second Circuit law. See, e.g., Sledge v. Kooi, 564
F.3d 105, 108 (2d Cir. 2009) (affirming grant of summary judgment, in part, because plaintiff’s
eczema, back pain, stomach disorders, allergies, and asthma did not constitute a serious medical
need sufficient to support a claim of deliberate indifference to serious medical needs under
§ 1983). Because Plaintiff’s claim fails under the objective prong, this Opinion does not reach
the second prong of the deliberate indifference test. This claim is dismissed.
b. Deliberate Indifference to Safety
The claim for deliberate indifference to safety is insufficient as well. To state a claim for
deliberate indifference to safety, a plaintiff must allege: “(1) objectively, the deprivation the
inmate suffered was sufficiently serious that he was denied the minimal civilized measure of
life’s necessities, and (2) subjectively, the defendant acted with a sufficiently culpable state of
mind . . . .” Burgess v. Gerbing, No. 15 Civ. 9256, 2017 WL 2992208, at *3 (S.D.N.Y. July 13,
2017) (quoting Walker, 717 F.3d at 125). Under the first prong, “the inmate must show that the
conditions, either alone or in combination, pose an unreasonable risk of serious damage to his
health.” Burgess, 2017 WL 2992208, at *4 (quoting Walker, 717 F.3d at 125). Under the
second prong, a plaintiff must show 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.” Darnell, 849 F.3d at 35.
The Complaint fails to state a claim for deliberate indifference to Plaintiff’s safety based
on his exposure to harmful chemicals in the barbershop. The Complaint alleges that Plaintiff
was ordered to lay face down on the floor, which caused him to come into contact with a
dangerous chemical agent. The Complaint also alleges that defendants knew that there were
innocent people in the barbershop when they sprayed the chemical agent and recklessly failed to
protect them. These bare allegations are insufficient to meet the objective prong of the deliberate
indifference test. Defendants’ efforts to restore order, which included ordering the inmates to lay
on the floor were reasonable and based on a legitimate penological concern for the safety of the
inmates, including Plaintiff. The assertion that Defendants should have been more careful to
protect the inmates from the chemical agent residue on the ground sounds in negligence (rather
than recklessness) and is not a constitutional violation. See Perez v. City of New York, No. 17
Civ. 0366, 2017 WL 684186, at *3 (E.D.N.Y. Feb. 17, 2017) (dismissing deliberate indifference
to safety claim where a chemical agent got into plaintiff’s eyes during a prison disturbance and
he was denied medical treatment for two months because the use of the chemical agent was
“reasonable to restore order,” and noting that negligent failure to protect plaintiff from exposure
to the chemical agent does not constitute a constitutional violation). Moreover, for the reasons
discussed above, Defendants’ conduct did not expose Plaintiff to an objectively unreasonable
risk of serious damage to his health. Because the Complaint does not satisfy the objective prong
of the deliberate indifference test, this Opinion does not reach the subjective prong with respect
to the use of chemicals to restore order.
To the extent Plaintiff argues that Officer Santos acted with reckless disregard for
Plaintiff’s safety because Officer Santos brought Plaintiff to the barbershop despite Plaintiff’s
protective custody status, this argument is unpersuasive. The Complaint fails to allege any facts
to support an inference that Officer Santos acted intentionally or recklessly, rather than
negligently, by having Plaintiff and the other adult inmates wait in the barbershop while the
adolescent inmates got their hair cut. See Brown v. City of New York, No. 13 Civ. 6912, 2017
WL 1390678, at *11 (S.D.N.Y. Apr. 17, 2017) (dismissing a deliberate indifference claim where,
at worst, defendants negligently put plaintiff in the general prison population because “any
§ 1983 claim for a violation of due process requires proof of a mens rea greater than mere
negligence”). In addition, Officer Santos’ actions were not the proximate cause of Plaintiff’s
alleged injuries. That is, if unnamed officers had not sprayed the chemical agent or ordered
Plaintiff to lay face down on the ground -- a superseding cause -- Plaintiff would not have
suffered any harm as a result of Officer Santos’ conduct. See Poventud v. City of New York, 750
F.3d 121, 159 (2d Cir. 2016) (“In all § 1983 cases, the plaintiff must prove that the defendant’s
action was a proximate cause of the plaintiff[’]s injury.”); Bogart v. City of New York, No. 13
Civ. 1017, 2015 WL 5036963, at *5–*6 (S.D.N.Y. Aug. 26, 2015) (“[E]ven if a Section 1983
defendant’s initial act is the ‘but for’ cause of some ultimate harm . . . , he is not legally liable for
the harm if an intervening act is a ‘superseding cause’ that breaks the legal chain of proximate
cause.”) (relying on Higazy v. Templeton, 505 F.3d 161, 181 (2d Cir. 2007)).
Similarly, insofar as the Complaint can be construed to allege a claim of excessive force,
that claim also fails because the Complaint does not allege the use of any force that was
excessive. See, e.g., Candelario v. City of New York, No. 12 Civ. 1206, 2013 WL 1339102, at *9
(S.D.N.Y. Apr. 3, 2013) (finding plaintiff’s § 1983 claim of excessive force meritless because he
did “not allege any facts that cou[ld] support an excessive force claim”); Jenkins v. Elder, No.
12 Civ. 4165, 2015 WL 5579699, at *4, *6 (S.D.N.Y. Sept. 22, 2015) (granting summary
judgment as to excessive force claim under § 1983 where plaintiff failed to allege that defendant
officers used more than de minimis force, or that one of the individual defendants had used any
force against plaintiff).
c. Equal Protection
Construed broadly, the Complaint alleges that Defendants violated Plaintiff’s right to
equal protection under the Fourteenth Amendment and § 1983, because those who were directly
involved in the altercation -- i.e., the adolescent inmates who were sprayed with the chemical
agent -- were immediately decontaminated and afforded medical attention, but Plaintiff and
others who experienced secondary exposure were forced to wait.
“The equal protection clause directs state actors to treat similarly situated people alike.”
Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995)). To state a claim, plaintiff must allege
“purposeful discrimination, directed at an identifiable or suspect class,” Giano, 54 F.3d at 1057,
or that, as “a class of one,” he was “intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in treatment,” see Vill. Of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000) (per curium). See, e.g., Phillips v. Girdich, 408 F.3d 124, 130
(2d Cir. 2005) (vacating dismissal of Equal Protection claim under § 1983, in part, because the
Complaint could be read to allege a class of one Equal Protection violation); Davis v. McCready,
No. 14 Civ. 6405, 2017 WL 627454, at *5 (S.D.N.Y. Feb. 15, 2017) (dismissing Equal
Protection claim for failure to allege membership in any particular class, or differential treatment
compared with others similarly situated).
Viewing the alleged facts in the light most favorable to Plaintiff, the Complaint fails to
allege facts to support a claim under § 1983 based on an equal protection violation. First, the
Complaint does not allege that Plaintiff was a member of a suspect class (or any class), or that
Plaintiff was treated differently than similarly situated individuals without a rational basis for the
difference in treatment. To the extent that the Complaint alleges that Plaintiff was treated
differently than the adolescent inmates in the barbershop, this is insufficient because the
Complaint makes clear that Plaintiff and those adolescent inmates, who were directly involved in
the altercation and were sprayed with the chemical agent were not similarly situated. Further,
the Complaint does not assert that any difference in treatment was without a rational basis. To
the contrary, the Complaint suggests that there was a rational basis because the adolescent
inmates came into direct contact with the dangerous chemical agent, whereas Plaintiff came into
contact with it only after being told to lay on the ground. Second, the Complaint does not allege
that Defendants purposefully delayed his medical treatment and permission to shower due to
intentional or purposeful discrimination based on his membership in a protected class, or for
some other purpose lacking a rational basis. Therefore, this claim is dismissed.
d. Municipal Liability
The Complaint alleges that the City is liable because “it is not in their [Correction
Officers’] training to protect the innocent in such incidents of chaos.” This claim fails as a
matter of law.
To hold a municipality liable for a constitutional violation under § 1983, a plaintiff must
demonstrate that “the deprivation of the plaintiff’s rights under federal law is caused by a
governmental custom, policy, or usage of the municipality.” Jones v. Town of E. Haven, 691
F.3d 72, 80 (2d Cir. 2012) (citing Monell v. Dep’t of Social Servs., 436 U.S. 658, 690–91
(1978)); accord Mitchell v. City of New York, 841 F.3d 72, 80 (2d Cir. 2016). A “policy or
custom” exists “where a policymaking official exhibits deliberate indifference to constitutional
deprivations caused by subordinates, such that the official’s inaction constitutes a ‘deliberate
choice’ . . . .” Cash v. Cty. of Erie, 654 F.3d 324, 334 (2d Cir. 2011); Maldonado v. Schriro, No.
15 Civ. 3409, 2016 WL 7243548, at *2 (S.D.N.Y. Dec. 14, 2016).
A city’s failure to train or supervise constitutes “deliberate indifference” where three
requirements are met: (1) “a policymaker knows to a moral certainty that her employees will
confront a given situation”; (2) “the situation either presents the employee with a difficult choice
of the sort that training or supervision will make less difficult or that there is a history of
employees mishandling the situation”; and (3) “the wrong choice by the city employee will
frequently cause the deprivation of a citizen’s constitutional rights.” Okin v. Vill. Of CornwallOn-Hudson Police Dep’t, 577 F.3d 415, 440 (2d Cir. 2009) (quoting Walker v. City of New York,
974 F.2d 293, 297–98 (2d Cir. 1992)). “A pattern of similar constitutional violations by
untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes
of failure to train.” Connick v. Thompson, 563 U.S. 51, 62 (2011) (internal quotation marks
omitted); Tchatat v. Police Officer Liam O’Hara, No. 14 Civ. 2385, 2017 WL 3172715, *8
(S.D.N.Y. July 25, 2017) (citing Connick to rule on a motion to dismiss failure to train claim).
“Although there is no heightened pleading requirement for complaints alleging municipal
liability under § 1983, a complaint does not suffice if it tenders naked assertions devoid of
further factual enhancement.” Valdiviezo, 2017 WL 1191528, at *3. “The mere assertion . . .
that a municipality has such a custom or policy is insufficient in the absence of allegations of fact
tending to support, at least circumstantially, such an inference.” Id. (quoting Dwares v. City of
New York, 985 F.2d 94, 100 (2d Cir. 1993)).
The Complaint fails to plead sufficient facts to state a claim for municipal liability under
Monell. First, as discussed above, the Complaint does not allege an underlying violation of
federal law. See Cohen v. Walcott, No. 13 Civ. 9181, 2017 WL 2729091, at *5 (S.D.N.Y. June
23, 2017) (“Where, as here, a plaintiff fails to establish an underlying constitutional violation
there can be no liability under Monell.”). Second, the Complaint does not include any factual
allegations that could support any of the three Walker factors. The Complaint alleges, in a
conclusory manner, that the alleged constitutional violations resulted from the City’s failure to
train its correction officers “to protect the innocent in such incidents of chaos.” See Brown, 2017
WL 1390678, at *13 (dismissing Monell claim under § 1983 where plaintiff did not offer specific
factual allegations regarding the City’s training for Department of Corrections personnel).
Because the Complaint fails to plead adequately municipal liability under § 1983, all claims
against the City are dismissed.
B. State Claims
To the extent that the Complaint can be read to plead negligence -- or any other claim -under New York law, the Court declines to exercise supplemental jurisdiction. A district court
may decline to exercise supplemental jurisdiction over claims arising under state law if the court
“has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). In
considering whether to exercise its discretion, courts must weigh considerations of “[judicial]
economy, convenience, fairness, and comity.” Jones v. Ford Motor Credit Co., 358 F.3d 205,
214 (2d Cir. 2004). These factors will usually lead to dismissal of the non-federal claims when
the federal claims have been dismissed at a relatively early stage. See Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 350 (1988). Here, all of the federal claims against Defendants are
dismissed on a Rule 12(c) motion before significant discovery has taken place. Therefore, the
Court declines to exercise supplemental jurisdiction.
Under the Prison Litigation Reform Act (“PLRA”), “[n]o action shall be brought with
respect to prison conditions under [42 U.S.C. § 1983] . . . by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a); Williams, 829 F.3d at 122. Failure to exhaust under the
PLRA is an affirmative defense rather than a pleading requirement, but “a district court may still
dismiss a complaint for failure to exhaust administrative remedies if it is clear on the face of the
complaint that the plaintiff did not satisfy the PLRA exhaustion requirement.” Id. (quoting Jones
v. Block, 549 U.S. 199, 215 (2007)). Here, although it is clear on the face of the Complaint that
Plaintiff did not file a grievance at the facility where he was incarcerated (in the initial
Complaint, he checked the boxes indicating that he did not file a grievance), Defendants did not
assert this affirmative defense in their Answer, and therefore, it is waived. See Ruggiero v. Cty.
of Orange, 467 F.3d 170, 175 (2d Cir. 2006) (noting that a defendant may waive the defense of
failure to exhaust); accord Banks v. Cty. of Westchester, 168 F. Supp. 3d 682, 693 n.3 (S.D.N.Y.
2016) (“failure to exhaust . . . may be waived by a defendant, or forfeited by failure to raise the
defense”) (internal quotation marks omitted). Accordingly, the Complaint is dismissed. To the
extent that Plaintiff believes he can cure the pleading deficiencies identified above, he must
exhaust his administrative remedies before refiling a new action in federal court.
For the foregoing reasons, Defendants’ motions are granted, and the Complaint is
dismissed in its entirety. The Clerk of Court is directed to close the motions at Docket Nos. 52
and 59, to leave this case open for resolution of the pro se Defendant’s crossclaim and to mail a
copy of this Order to pro se Plaintiff and pro se Defendant.
Dated: August 17, 2017
New York, New York
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