Nelson v. New York City Department of Corrections et al
REPORT AND RECOMMENDATION re: 13 MOTION to Dismiss the Amended Complaint filed by New York City, N.Y. For the reasons discussed above, I recommend that the defendant's motion be granted. Pursuant to 28 U.S.C. § 63 6(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of Court, with extra copies delivered to the Chambers of the Honorable Paul A. Engelmayer, Room 2201, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review. Objections to R&R due by 7/26/2017 (Signed by Magistrate Judge James C. Francis on 7/12/2017) Copies Mailed By Chambers. (mro)
arrival at Rikers Island on September 29, 2015, he spent six
days in a holding cell, where he was forced to sleep on the
“bair [sic] cold concreat [sic] floors” without a blanket or
(Amended Complaint (“Amend. Compl.”) at 3).
when the plaintiff moved into a housing unit, he was allegedly
(Amend. Compl. at 3).
Mr. Nelson considers his
treatment “cruel and unusual punishment.”
(Amend. Compl. at 3).
To substantiate his claim, he attaches to his Amended Complaint
intended to be used without a foundation.”
Label, attached as Exh. A to Amend. Compl.).
Mr. Nelson claims
preexisting lower back pain worse, . . . [scoliosis] in [his]
back, numbness of arm, shoulders, hands, sides, hips, legs, and
feet, as well as pain i[n] those areas.”
(Amend. Compl. at 3).
The plaintiff claims to have suffered from sleep deprivation due
“disorientation, mental stress, and pain.”
(Amend. Compl. at
Department of Correction (“DOC”) about his back pain and the
(Amend. Compl. at 6-7). 1
“double up” mattresses.
then asked doctors to write medical notes for him and spoke with
(Amend. Compl. at 4).
On November 11,
2016, the plaintiff met with Grievance Supervisor “Mr. Guerrant”
and Grievance Officer “Mr. Jefferson,” who informed him that he
had exhausted his administrative remedies and that nothing more
would be done about the mattress.
(Amend. Compl. at 5).
The plaintiff brought this action on August 10, 2016, and
he amended his complaint on January 31, 2017, in response to an
order of the Court.
The defendant has moved to dismiss the
plaintiff has not stated a claim for municipal liability.
To survive a motion to dismiss under Rule 12(b)(6) of the
sufficient factual matter . . . to ‘state a claim to relief that
is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662,
Because the Amended Complaint is unnumbered after page
five, I use the page numbers generated by the Court’s Electronic
Case Filing system here.
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
A court’s charge in ruling on a 12(b)(6)
complaint, not to assay the weight of the evidence which might
be offered in support thereof.”
GVA Market Neutral Master Ltd.
v. Veras Capital Partners Offshore Fund, Ltd., 580 F. Supp. 2d
321, 327 (S.D.N.Y. 2008) (quoting Eternity Global Master Fund
Ltd. v. Morgan Guaranty Trust Co. of New York, 375 F.3d 168, 176
(2d Cir. 2004)).
A court must construe the complaint in the
allegations to be true and drawing all reasonable inferences in
the plaintiff’s favor.”
Harris v. Mills, 572 F.3d 66, 71 (2d
This standard applies equally to pro se plaintiffs, but
their pleadings are read more liberally and are construed as
York, 769 F.3d 821, 825 (2d Cir. 2014).
The court may also
consider “materials outside the complaint to the extent that
2016) (quoting Alsaifullah v. Furco, No. 12 Civ. 2907, 2013 WL
3972514, at *4 n.3 (S.D.N.Y. Aug. 2, 2013)).
Finally, even if a
plaintiff does not oppose a Rule 12(b)(6) motion, the failure to
respond does not warrant dismissal if the complaint sufficiently
states a claim.
McCall v. Pataki, 232 F.3d 321, 323 (2d Cir.
In order to establish a § 1983 claim for unconstitutional
conditions of confinement,
a pretrial detainee must satisfy two prongs, . . . an
conditions were sufficiently serious to constitute
objective deprivations of the right to due process,
and a “subjective prong” -- perhaps better classified
as a “mens rea prong” or “mental element prong” -showing
deliberate indifference to the challenged conditions.
Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017).
Alleging an objectively, sufficiently serious deprivation
alone or in combination, pose an unreasonable risk of serious
damage to his health.”
Walker v. Schult, 717 F.3d 119, 125 (2d
“There is no ‘static test’ to determine whether a
themselves must be evaluated in light of contemporary standards
Darnell, 849 F.3d at 30 (quoting Blissett v.
Coughlin, 66 F.3d 531, 537 (2d Cir. 1995)).
violation, the plaintiff would need to show, for example, that
(1) he had a preexisting medical condition requiring a
special bed to protect against serious damage to his
future health; (2) he made that medical condition
known to prison officials; (3) he requested a special
bed to accommodate such medical condition; and (4) his
request was denied by an “official [who knew] of and
disregard[ed] an excessive risk to [the plaintiff’s]
health or safety.”
Howard v. City of New York, Nos. 12 Civ. 4069 et al., 2012 WL
original) (quoting Phelps v. Kapnolas, 308 F.3d 180, 185-86 (2d
“Alternatively, a prisoner could also show that
the medical condition was itself created by an inadequate bed or
mattress and that an official who became aware of the situation
failed to remedy it.”
Youmans v. Schriro, No. 12 Civ. 3690,
2013 WL 6284422, at *5 (S.D.N.Y. Dec. 3, 2013).
The plaintiff claims to have been forced to use a mattress
on a foundation in contravention of manufacturer instructions
warning that the mattress should be used without a foundation.
exacerbation of existing ailments and the alleged misuse of the
In addition, he has not named any individual guard as
responsible, nor has he alleged any facts to plausibly suggest
allegations are conclusory and fail to meet established pleading
See Iqbal, 556 U.S. at 678.
Furthermore, the warning label on the mattress relates not
to chiropractic health, but to fire safety.
See Howard, 2012 WL
7050623, at *6 (“[T]he warning relates to fire safety. . . .
[T]here is no reason to believe that the instructions relate to
To the extent that Mr. Nelson’s Amended
Complaint may be read to assert that the mattress is simply
uncomfortable, “the Constitution does not require ‘comfortable’
Walker, 717 F.3d at 125 (quoting Rhodes v.
Chapman, 452 U.S. 337, 349 (1981)).
Mr. Nelson also claims that he was required to sleep on the
floor for six days.
He has neither identified any responsible
plausibly suggest that any correction official “acted with at
Consequently, Mr. Nelson’s amended complaint fails to state a
claim for unconstitutional conditions of confinement.
See Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir.
However, “Government officials may not be held liable
. . . for unconstitutional conduct of their subordinates under a
theory of respondeat superior.”
Iqbal, 556 U.S. at 676; see
also Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir.
Instead, “establishing the liability of the municipality
violation of federal law committed by the municipal actors, and,
in addition, that their commission of the tort resulted from a
custom or policy of the municipality.”
Askins, 727 F.3d at 253.
“A municipal policy may be pronounced or tacit and reflected in
either action or inaction,” Cash v. County of Erie, 654 F.3d
324, 334 (2d Cir. 2011), and may be premised upon the actions of
a policymaking individual, see Walker v. City of New York, 974
F.2d 293, 296-97 (2d Cir. 1992).
Mr. Nelson has not alleged facts from which it could be
inferred that the purportedly unconstitutional acts committed by
correction officers resulted from any policies of the City.
a result, the plaintiff has failed to state a claim against the
only defendant he has named.
Leave to Amend
The Second Circuit has held that a pro se litigant should
be afforded at least one opportunity to “amend his complaint
prior to its dismissal for failure to state a claim, unless the
court can rule out any possibility, however unlikely it might
be, that an amended complaint would succeed in stating a claim.”
Gomez v. USAA Federal Savings Bank, 171 F.3d 794, 796 (2d Cir.
1999) (per curiam).
Mr. Nelson has had that opportunity.
order dated September 7, 2016, the Honorable Colleen McMahon,
U.S.D.J., permitted Mr. Nelson to file an amended complaint and
Amended Complaint fails to satisfy those standards, and there is
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