Daly v. New York City et al

Filing 17

REPORT AND RECOMMENDATION re: 11 MOTION to Dismiss filed by Joseph Ponte, Maxsolaine Mingo, New York City. For the reasons discussed above, I recommend that the defendants' motion be granted. Pursuant to 28 U.S.C. § 636(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 objectionsto this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra c opies 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 1007. Failure to file timely objections will preclude appellate review. (Objections to R&R due by 6/13/2017.) (Signed by Magistrate Judge James C. Francis on 5/30/2017) Copies Transmitted this Date By Chambers. (anc)

the plaintiff has not responded.

For the reasons that follow, I

recommend that the motion be granted.
Background
Mr. Daly’s complaint states that while he was being detained 2
at the AMKC, “the NYCDOC [] forced [him] to mis-use the Bob Barker
mattress on a foundation when it is clearly labeled to be used without
one.”

(Complaint (“Compl.”) at 3).

To substantiate this claim, he

has attached a copy of a mattress tag to the complaint which states
“this mattress is intended to be used without a foundation.”
(Mattress Warning Label, attached as exhibit to Compl.).

Mr. Daly

also claims that he suffers “from spinal stenosis as well as 2 crushed
vertebrae.” (Compl. at 3).

He further asserts that “the NYCDOC is

aware that this product causes medical issues and induces severe pain
when it is mis-used” and that “[b]ecause of their deliberate
indifference[, his] pre-existing condition has been exacerbated to
the point of being continuously excruciatingly painful.”

(Compl.

at 3).
Mr. Daly filed a grievance with the DOC on July 14, 2016,
alleging that his mattress exacerbated his back conditions.
at 8).

(Compl.

He brought this action two weeks later on July 28, 2017, after

2

While no party has indicated whether Mr. Daly is a pre-trial
detainee or a convicted prisoner, I will assume that he is the former,
as he would be entitled to somewhat greater constitutional
protection.
2

receiving no response to the grievance.

(Compl. at 4, 7).

When

asked on the complaint form to describe what efforts he made to appeal
the decision on his grievance, Mr. Daly states, “None, they never
responded within 2 weeks.”

(Compl. at 4).

The defendants have moved to dismiss the complaint on the
grounds that: (1) the plaintiff failed to exhaust his administrative
remedies, (2) the constitutional claim is insufficiently pled, and
(3) no facts are alleged in the complaint that could plausibly provide
a basis for municipal or individual liability.
Discussion
A.

Legal Standard

To survive a motion to dismiss under Rule 12(b)(6) of the Federal
Rules of Civil Procedure, “a complaint must contain sufficient
factual matter . . . to ‘state a claim to relief that is plausible
on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

The

court’s charge in ruling on a 12(b)(6) motion “is merely to assess
the legal feasibility of the 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)).

The court must construe the complaint in
3

the light most favorable to the plaintiff, “taking its factual
allegations to be true and drawing all reasonable inferences in the
plaintiff’s favor.”

Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009).

This standard applies equally to pro se plaintiffs, but their
pleadings are read more liberally and are construed as raising the
strongest claims implied.
825 (2d Cir. 2014).

See Teichmann v. New York, 769 F.3d 821,

The court may also consider “materials outside

the complaint to the extent that they are consistent with the
allegations in the complaint.”

Martinez v. Aycock-West, 164 F.

Supp. 3d 502, 508 (S.D.N.Y. 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. 2000).
B.

Exhaustion of Administrative Remedies

The Prison Litigation Reform Act bars a prisoner from bringing
a § 1983 action related to prison conditions unless “administrative
remedies . . . are exhausted.”

42 U.S.C. § 1997e(a); see also

Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016).

Because

failure to exhaust is an affirmative defense, a plaintiff’s complaint
need not allege that he has exhausted his administrative remedies.
Williams, 839 F.3d at 122.

Therefore, a court may dismiss a
4

complaint only if a plaintiff’s failure to exhaust “is clear on the
face of the complaint.”

Id.

In this case, the plaintiff was required to comply with the DOC’s
multi-step Inmate Grievance Resolution Program (“IGRP”), which
directs an inmate to:
(1) file a complaint with the IGRC for informal resolution; (2)
if an informal resolution is not reached within five days,
request a formal hearing before the IGRC; (3) appeal the IGRC’s
decision to the facility warden; (4) appeal the facility
warden’s decision to the Central Office Review Committee
(“CORC”); and (5) appeal the CORC’s decision to the New York
City Board of Correction (“BOC”).
Cannon v. City of New York, Nos. 11 Civ. 8983 et al., 2013 WL 1234962,
at *3 (S.D.N.Y. Jan. 29, 2013), report and recommendation adopted,
2013 WL 1248546 (S.D.N.Y. March 27, 2013); see also New York City
Department
Grievance

of

Correction,

and

re:

Inmate

Program,

Request

Directive

§

II.F,

http://www1.nyc.gov/assets/doc/downloads/directives
/Directive_3376_Inmate_Grievance_Request_Program.pdf
visited May 19, 2017).

(last

“A prisoner’s remedies are not deemed

exhausted until he proceeds through all five levels of the [IGRP].”
Williams v. City of New York, No. 03 Civ. 5342, 2005 WL 2862007, at
*10 (S.D.N.Y. Nov. 1, 2005).
Pursuant to the IGRP, Mr. Daly filed a grievance on July 14,
2016.

(Compl. at 8).

He explains that he received no response to

this grievance and did not take any additional steps.
5

(Compl. at

4).

The defendants argue that this establishes a failure to exhaust

and

mandates

dismissal.

(Memorandum

of

Law

in

Support

of

Defendant’s Motion to Dismiss the Complaint at 5).
While the lack of a response to an initial grievance by itself
is not an excuse for failing to exhaust all remedies, other
circumstances may excuse such a failure.

Garvin v. Rivera, No. 13

Civ. 7054, 2015 WL 3999180, at *3 (S.D.N.Y. June 29, 2015).

The

Supreme Court recently reaffirmed that a prisoner’s failure to
exhaust administrative remedies may be excused if the grievance
procedure is not “available” to him.
136

S.

Ct.

1850,

1856

(2016).

Ross v. Blake, __ U.S. __, __,
An

administrative

remedy

is

unavailable when, for example, “it operates as a simple dead end -with officers unable or consistently unwilling to provide any relief
to aggrieved inmates”; when the procedure is “so opaque that it
becomes, practically speaking, incapable of use”; or “when prison
administrators thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimidation.”
Id. at 1859-60.
Because failure to exhaust is an affirmative defense and may
be excused, courts in this Circuit have denied motions to dismiss
complaints brought on that basis, even where the plaintiff admits
to failing to exhaust administrative remedies and does not allege
facts explaining the failure.

See, e.g., Franklin v. New York City,
6

No. 16 Civ. 5549, 2017 WL 776105, at *5 (S.D.N.Y. Feb. 10, 2017) (where
plaintiff alleged he did not receive response to grievance and failed
to file appeal, court could not determine from face of complaint
whether plaintiff “has failed to exhaust available remedies”; Shaw
v. Ortiz, No. 15 Civ. 8964, 2016 WL 7410722, at *5 (S.D.N.Y. Dec.
21, 2016) (where plaintiff alleged he did not receive response to
grievance and failed to file appeal, court could not determine from
face of complaint “whether the prison’s administrative remedies were
in fact ‘available’”); but cf. Mena v. City of New York, No. 13 Civ.
2430, 2016 WL 3948100, at *4-5 (S.D.N.Y. July 19, 2016) (granting
defendants’ motion for summary judgment for non-exhaustion where
plaintiff failed to establish unavailability of grievance procedure
and noting Department of Correction directive allowing “inmates [to]
directly proceed to the next level of review in the event of the
[Department’s] failure to respond to a grievance”).

Because it is

not clear on the face of the complaint that Mr. Daly’s failure to
exhaust administrative remedies cannot be excused, the complaint
should not be dismissed on that basis.
C.

Conditions-of-Confinement Claim

In order to establish a § 1983 claim for unconstitutional
conditions of confinement, a detainee must allege “(1) a deprivation
that is ‘objectively, sufficiently serious’ that he was denied ‘the
minimal

civilized

measure

of

life’s
7

necessities,’

and

(2)

a

‘sufficiently culpable state of mind’ on the part of the defendant
official, such as deliberate indifference to inmate health or
safety.”

Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001)

(quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).

Mr. Daly’s

complaint fails on both counts.
1.

Objective Deprivation

Alleging an objectively, sufficiently serious deprivation
requires the plaintiff to “show that the conditions . . . pose an
unreasonable risk of serious damage to his health.”
Schult, 717 F.3d 119, 125 (2d Cir. 2013).

Walker v.

“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.’”

Darnell v. Pineiro, 849 F.3d 17, 30 (2d Cir.

2017) (quoting Blissett v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995)).
The only condition Mr. Daly complains of is being forced to use
a mattress on a foundation in apparent contravention of instructions
that the mattress is intended to be used without a foundation.
(Compl. at 3).

The plaintiff has not alleged any facts that

plausibly link the exacerbation of his ailments to the supposed
misuse of the mattress.

Accordingly, Mr. Daly’s complaint is

conclusory and fails to meet established pleading requirements.

See

Iqbal, 556 U.S. at 678.
Furthermore, the “warning” label on the Bob Barker mattress used
8

at the AMKC relates not to chiropractic health, but to fire safety.
See Howard v. City of New York, Nos. 12 Civ. 4069 et al., 2012 WL
7050623, at *6 (S.D.N.Y. Dec. 20, 2012)(“[T]he warning relates to
fire safety . . . .

[T]here is no reason to believe that the

instructions relate to chiropractic health.”).

To the extent that

Mr. Daly’s complaint may be read to assert that the Bob Barker
mattress is simply uncomfortable, “the Constitution does not require
‘comfortable’ prison conditions.”

Walker, 717 F.3d at 125 (quoting

Rhodes v. Chapman, 452 U.S. 337, 347, 349 (1981)).
2.

Culpability

In the past, in order to make out a successful conditions of
confinement claim, both pre-trial detainees and convicted prisoners
were required to show that a defendant subjectively knew of a risk
and disregarded it.

See Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir.

2009) (overruled by Darnell, 849 F.3d 17.

Recently however, the

Second Circuit has lowered this burden for pre-trial detainees in
response to the Supreme Court’s decision in Kingsley v. Hendrickson,
___ U.S.

, 135 S. Ct. 2466 (2015).

Darnell, 849 F.3d at 29-36.

Now, a pre-trial detainee can meet this prong by showing objectively
that a reasonable person should have known of the risk of deprivation.
Id. at 36.

Accordingly,

[T]he pretrial detainee must prove 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
9

though the defendant-official knew, or should have known, that
the condition posed an excessive risk to health or safety.
Id. at 35.
Here, although he claims to have been “subjected to deliberate
indifference” (Compl. at 3), Mr. Daly has wholly failed to allege
that any specific individuals were aware or should have been aware
of the health risk to which he claims he was exposed.

He states only

that the “NYCDOC is aware that this product causes medical issues
. . . when it is mis-used, and yet has done nothing to replace this
product.”

(Compl. at 3).

Yet the DOC is not a defendant, and the

plaintiff does not allege facts suggesting that any individual
defendant had the requisite state of mind.

Accordingly, Mr. Daly’s

pleading falls short of plausibly alleging deliberate indifference
by any party.
D.

Personal Involvement of Named Defendants

The Second Circuit has long required plaintiffs to show a
defendant’s personal involvement in the alleged constitutional
deprivation to successfully bring a § 1983 claim against him.

See

Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013).

In

the instant case, Mr. Daly has named two individuals as defendants:
Commissioner Joseph Ponte of the DOC and Warden Maxsolaine Mingo of
the AMKC.

However, he has not provided any facts that would allow

the Court to infer either individual’s personal involvement.

In

fact, neither of them is mentioned at all in the complaint except
10

to be named as defendants.
Read liberally, as a pro se plaintiff’s complaint must be, Mr.
Daly could be attempting to implicate Commissioner Ponte or Warden
Mingo under a respondeat superior or chain-of-command rationale, but
neither theory can serve as the basis for a § 1983 claim.
v. Keane, 341 F.3d 137, 144-45 (2003).
the

necessary

personal

involvement

Hernandez

Instead, Mr. Daly must show
by

pleading

that

these

defendants: (1) participated directly in the violation; (2) failed
to remedy the wrong after learning of the violation; (3) created a
policy or custom under which unconstitutional practices occurred;
(4) were grossly negligent in supervising subordinates who caused
the unlawful condition or event; or (5) exhibited deliberate
indifference by failing to act on information indicating that
unconstitutional acts were occurring.

Id. at 145; Morgan v. Ward,

No. 14 Civ. 7921, 2016 WL 427913, at *6 (S.D.N.Y. Feb. 2, 2016).

As

Mr. Daly has not met any of these standards, the motion to dismiss
should be granted on these grounds as well.
E.

Municipal Liability

Municipal liability may be found even in absence of individual
liability, so long as there is a constitutional injury.

See Barrett

v. Orange County Human Rights Commission, 194 F.3d 341, 344-50 (2d
Cir. 1999).

However, since the plaintiff here has failed to state

a claim against any correction official, his claim against the City
11

of New York likewise fails.

See Askins v. Doe No. 1, 727 F.3d 248,

253 (2d Cir. 2013) (“Establishing the liability of the municipality
requires a showing that the plaintiff suffered a tort in 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.”).
F.

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 [will] succeed in stating a claim.”

Gomez v. USAA Federal

Savings Bank, 171 F.3d 794, 796 (2d Cir. 1990) (per curiam).
Daly has not yet been given that chance.

Mr.

He should therefore be

permitted to amend his complaint, consistent with this Report and
Recommendation.
Conclusion
For

the

reasons

discussed

defendants’ motion be granted.

above,

I

recommend

that

the

Pursuant to 28 U.S.C. § 636(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 the Court, with extra copies delivered to the
12