White v. New York City et al

Filing 35

REPORT AND RECOMMENDATION re: 18 MOTION to Dismiss The Amended Complaint filed by Bob Barker Company Inc.; 22 MOTION to Dismiss the Amended Complaint filed by Pines, Joseph Ponte, City of New York, Beaulieu, D. Frazier, Ada Presely, Dora B. Schriro, Mitchell, Timberlake, Clement Glenn, Jean. For the reasons discussed above, I recommend that each of the defendants' motions 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 objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the 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 8/14/2017.) (Signed by Magistrate Judge James C. Francis on 7/31/2017) Copies Mailed By Chambers. (anc)

Erik White brings this suit pro se pursuant to 42 U.S.C. §
1983 against the City of New York (“the City”); former New York
City Department of Correction (“DOC”) Commissioner Dora Schiro;
current DOC Commissioner Joseph Ponte; Corizon Health Services
Manager John/Jane Doe; Warden K. Staues; Warden Frazier; Warden
Beaulieu; Warden Clement Glenn; Warden Ada Presely; Correction
Officers Taylor and Timberlake; Security Officer Chambers; and
Captains

Spencer,

Mitchell,

Thomas,

Jean,

and

Richardson

(collectively, the “City Defendants”); and the Bob Barker Company
Inc.1 The plaintiff, who was held in the custody of the DOC at the
Otis Bantum Correctional Center (“OBCC”), the Robert N. Davoren
Center (“RNDC”), and the Brooklyn Detention Complex (“BKDC”),
alleges

that

the

conditions

Fourteenth Amendment2 rights.

of

his

confinement

violated

his

He seeks compensatory damages in the

amount of $15,000,000 and injunctive relief.

The City Defendants

1

The plaintiff also named the DOC and Brooklyn Detention
Complex as defendants in his Complaint, but the Court dismissed all
claims against those defendants sua sponte. (Order dated March 1,
2017, at 2-3).
2

In the Amended Complaint, Mr. White alleges violations of
his Fifth and Eighth Amendment rights. However, it appears he was
a pre-trial detainee. (See Order dated October 4, 2016, at 3 n.2;
Memorandum of Law in Support of Defendants’ Motion to Dismiss the
Amended Complaint at 7 & n.3). These claims would therefore be
properly brought under the Fourteenth Amendment.
Patterson v.
Ponte, No. 16 Civ. 3156, 2017 WL 1194489, at *5 (S.D.N.Y. March 30,
2017) (“A pre-trial detainee’s conditions of confinement claims are
governed by the Due Process Clause of the Fourteenth Amendment
rather than the Eighth Amendment . . . .”).
2

and Bob Barker Company have each moved to dismiss the claims
against them.

For the reasons set forth below, I recommend that

the motions be granted.
Background
Mr. White was detained at several New York City jails from
June 18, 2014, through October 31, 2016.
Compl.”) at 4).3

(Amended Complaint (“Am.

He began experiencing back pain in April 2015

while detained at BKDC.
OBCC

transferred

to

“experience

pain

shoulder.”

(Am. Compl. at 5).

and

on

(Am. Compl. at 11).
Rikers

soreness

Island,
in

[his]

where

He was later
he

lower

continued

back,

neck

to
and

The plaintiff alleges that this

pain was caused by the thin, uncomfortable Bob Barker mattresses
that were issued to him at each institution.

(Am. Compl. at 4).

Mr. White complained of these back problems and eventually received
medical treatment from Dr. Harjinder Bhatti.
25).

The

condition,

plaintiff
prescribed

states

(Am. Compl. at 5-6,

that

Dr.

Bhatti

medication,

and

wrote

“confirmed”
a

referral

his
form

requesting that Mr. White be given a firm mattress. (Am. Compl. at
5).
Mr. White presented this form to officers in his housing unit

3

Because the Amended Complaint includes unnumbered pages, I
use the page numbers assigned by the Court’s Electronic Case Filing
System.
3

who were unable to help him procure such a mattress. (Am. Compl. at
6).

He then discussed the issue with Warden Staues, who told him

that the DOC does not provide such mattresses and that he would not
be allowed to have two mattresses as an alternative.
at 6).

(Am. Compl.

Nevertheless, the plaintiff found and started using an

additional mattress, which was repeatedly confiscated by several
correction officers, including Correction Officers Foster, Taylor,
and Wilson and Captain Mitchell.

(Am. Compl. at 6-7).

Mr. White

showed each of the officers “proof” of his need for a firm mattress
–- presumably Dr. Bhatti’s referral form –- when they confiscated
the additional mattress.

(Am. Compl. at 7).

Mr. White complains that the lack of a proper mattress and the
resulting lack of sleep and back pain caused his mental health to
deteriorate.

(Am. Compl. at 7-8).

He was ultimately referred to

the mental health department, where he was prescribed medication to
treat depression, anxiety, and insomnia. (Am. Compl. at 7-8). The
plaintiff eventually stopped taking this medication, feeling that
he was growing too dependent on it.

(Am. Compl. at 8).

Mr. White was transferred from OBCC to RNDC in September 2015.
(Am. Compl. at 8, 11).

At RNDC, he was told that since his

doctor’s note was from another institution, he would need to get
another one; however, he was cautioned that the doctors at RNDC
would not write prescriptions for special mattresses.
4

(Am. Compl.

at 8).

In response, and without authorization, Mr. White obtained

a second mattress.

(Am. Compl. at 8).

Again, the second mattress

was repeatedly confiscated by correction officers.

(Am. Compl. at

8-9). The plaintiff also presented the referral form to these
officers.

(Am. Compl. at 9).

When Mr. White was transferred to

back to BKDC in August 2016, this same sequence of events occurred
again.

(Am. Compl. at 9, 12).

He was taken to see a doctor at

BKDC who diagnosed him with sciatica and prescribed medication.
(Am. Compl. at 10).

Mr. White refused to take this prescription,

as he had concerns about the potential negative side effects. (Am.
Compl. at 10).

He was also scheduled for physical therapy to treat

his sciatica, but he was transferred to New York State Department
of Corrections and Community Supervision before receiving any
further treatment.

(Am. Compl. at 10).

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
5

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)).
construe

the

complaint

in

the

light

most

The court must

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. See Teichmann v. New York, 769 F.3d 821,
825 (2d Cir. 2014). 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)).
B.

City Defendants

The City defendants have moved to dismiss the plaintiff’s
claims,

arguing

that

(1)

the

constitutional

claims

are

insufficiently pled, (2) the plaintiff has failed to state a valid
municipal liability claim, and (3) Warden Glenn, Warden Presely,
6

Warden Bealieu, Captain Frazier, Commissioner Ponte, and former
Commissioner Schriro were not personally involved in any of the
alleged deprivations.
1.
The

Inadequate Medical Care

plaintiff

claims

the

defendants

violated

his

constitutional rights by exhibiting deliberate indifference to his
medical

need.

(Am.

Compl.

at

13-14).

The

conditions-of-confinement analysis under the Fourteenth Amendment
consists of a two-pronged test.

Cuffee v. City of New York, No. 15

Civ. 8916, 2017 WL 1134768, at *4 (S.D.N.Y. March 27, 2017).
First,

a

plaintiff

must

establish

“that

the

[constitutional]

deprivation alleged is ‘objectively sufficiently serious’ such that
the plaintiff was denied ‘the minimal civilized measure of life’s
necessities.’”

Id. (alteration in original) (quoting Trammell v.

Keane, 338 F.3d 155, 161 (2d Cir. 2003)).

In the context of an

inadequate medical care claim, this requires a showing of a medical
“condition of urgency, one that may produce death, degeneration, or
extreme pain.”

Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005)

(quoting Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998)).
Second, a plaintiff must establish a “‘sufficiently culpable
state

of

mind’

associated

infliction of pain.’”

with

‘the

unnecessary

and

wanton

Cuffee, 2017 WL 1134768, at *4 (quoting

Trammell, 338 F.3d at 161).

A pre-trial detainee -- unlike a
7

convicted prisoner, for whom the state of mind requirement is
defined subjectively -- can meet this prong by showing that an
objectively reasonable person knew or should have known of the risk
to inmate health or safety:
[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 though the
defendant-official knew, or should have known, that the
condition posed an excessive risk to health or safety.
Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017).
“To succeed on a claim involving an alleged deficient bed, a
plaintiff must [establish] that ‘[he] had a medical condition
requiring a non-standard bed to protect against serious damage to
his future health’ or ‘that the medical condition was itself
created by an inadequate bed or mattress . . . .’”

Patterson, 2017

WL 1194489, at *6 (third alteration in original) (quoting Youmans
v. Schriro, No. 12 Civ. 3690, 2013 WL 6284422, at *5 (S.D.N.Y. Dec.
3, 2013)).
a. Objective Requirement
For a medical condition to satisfy the objective prong, it
must be a “‘condition of urgency’ that may result in ‘degeneration’
or ‘extreme pain.’”

Chance v. Armstrong, 143 F.3d 698, 702 (2d

Cir. 1998) (quoting Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.
1994)).

“[T]here is no ‘static test’ to determine whether a
8

deprivation

is

sufficiently

serious

[to

meet

the

objective

element].”

Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012)

(quoting Blissett v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995)).
The Second Circuit has held that the adequacy of a mattress may,
alone or in combination with other factors, constitute a condition
that satisfies the objective prong of the conditions-of-confinement
test if its inadequacy causes or threatens to cause sufficiently
serious harm, most often sleep deprivation.

Walker v. Schult, 717

F.3d 119, 126-27 (2d Cir. 2013) (collecting cases).
To the extent that the plaintiff argues in his reply that the
Bob Barker mattress is uncomfortable and is not to be used with a
foundation (Objection to Defendants[’] Motion to Dismiss Amended
Complaint

(“Pl.

Reply”)

2),4

at

establish the objective prong.

these

claims

would

fail

to

Simply alleging that a mattress is

uncomfortable is insufficient to “show that the conditions . . .
pose an

unreasonable

risk

Walker, 717 F.3d at 125.

of

serious

In general,

damage

Chapman, 452 U.S. 337, 347, 349 (1981)).
label

on

the

Bob

Barker

4

his

health.”

“the Constitution does not

require ‘comfortable’ prison conditions.”

“warning”

to

Id. (quoting Rhodes v.
And the referenced

mattress

relates

not

to

Like the Amended Complaint, the pages of the plaintiff’s
Reply are unnumbered. Accordingly, I use the page numbers assigned
by the Court’s Electronic Case Filing System.
9

chiropractic health, but to fire safety. See, e.g., 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.”) (citation ommitted).
However, as alleged in the Amended Complaint, Mr. White
received a recommendation from Dr. Bhatti to be given a firm
mattress for a medical purpose.

(Am. Compl. at 25).

It is unclear

what, if any, diagnosis Mr. White received at that time.

Later,

while at BKDC, he was diagnosed with sciatica allegedly due to the
mattresses and sleeping conditions.

(Am. Compl. at 10).

The

plaintiff further alleges that he was scheduled for physical
therapy before his transfer to a New York State facility.
Compl. at 10).

(Am.

He was also prescribed medication, which he

ultimately refused to take due to the possibility of negative side
effects.

(Am. Compl. at 10).

Mr. White notes that his sleep was

so disrupted that it caused anxiety and depression, leading to a
prescription for medication for these ailments.

(Am. Compl. at 7-

8).
The Amended Complaint has few details regarding his diagnoses
or how the mattresses contributed to the development of these
illnesses.

However, the plaintiff is proceeding pro se, and

questions regarding the progression of his illness are highly fact
10

specific.

Treatment

with

physical

therapy

and

prescription

medication “is indicative of the seriousness of the condition.”
Harris v. Moore, No. 15 Civ. 1608, 2015 WL 10427865, at *3
(S.D.N.Y. Dec. 3, 2015).

The allegations in the Amended Complaint

are therefore sufficient to satisfy the objective prong. See Abreu
v. Schriro, No. 14 Civ. 6418, 2016 WL 3647958, at *3 (S.D.N.Y. July
1,

2016)

(prisoner

with

sciatica

treated

with

x-rays,

pain

medication, and physical therapy satisfied objective prong for
purposes of motion to dismiss).
b.

Subjective Requirement

A plaintiff satisfies the subjective element of his burden by
showing that a prison official has acted with a culpable state of
mind. “[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 v. Anderson, No. 15 Civ. 4106,

2017 WL 1189747, at *13 (S.D.N.Y. March 30, 2017).
The Amended Complaint alleges that various officers at OBCC,
RNDC, and BKDC confiscated his second mattress.

(Am. Compl. at 6-

10). The plaintiff argues that this was deliberate indifference to
his medical need given Dr. Bhatti’s recommendation. (Am. Compl. at
6-10).

However, Mr. White does not clearly allege that he even

showed his referral to a number of these defendants, namely Captain
11

Thomas, Captain Richardson, and Security Officer Timberlake.
Compl. at 9-10).

(Am.

The Amended Complaint only states that “[a]ll

were made aware of my condition and situation, but yet it was not
in their duty to be concerned.”

(Am. Compl. at 10).

Even under

the liberal pleading standards applied to a pro se complaint, these
meager allegations are insufficient to demonstrate that these
defendants knew or should have known the severity of Mr. White’s
medical

condition.

See

Patterson,

2017

WL

1194489,

at

*7

(allegations that defendants were “aware of and responsible for the
deprivations”

without

further

factual

support

insufficient

to

satisfy subjective prong) (internal quotation marks ommitted).
Therefore, the claims against defendants Thomas, Richardson, and
Timberlake should be dismissed.
Conversely, Mr. White alleges that he showed the referral
form to Captain Pine, Captain Jean, and Security Officer Taylor,
and they all confiscated his second mattress.

(Am. Compl. at

6-

10). Mr. White also showed the note to Warden Staues and requested
a more firm mattress, or, in the alternative, a double mattress.
(Am. Compl. at 6).

Still, these facts also do not allege the

mental state required to survive a motion to dismiss. The referral
form does not prescribe a double mattress.

(Am. Compl. at 25).

And, while it may be the plaintiff’s belief that a double mattress
was a suitable substitute for the prescription for a firm mattress,
12

that is not supported by Dr. Bhatti’s note or any other allegations
of fact.
inform

The plaintiff admits as much, stating that he “did not

the

defendants

that

a

second

mattress

was

necessary because [he] did not have any proof of that.”

medically
(Pl. Reply

at 13).
The Amended Complaint is also unclear regarding what Dr.
Bhatti told the plaintiff about his medical condition, and what, if
any, of that information was communicated to the defendants.

Cf.

Harris v. Moore, No. 15 Civ. 1608, 2015 WL 10427865, at *4
(S.D.N.Y.

Dec.

3,

2015)

(subjective

element

satisfied

when

plaintiff showed doctor’s note that described plaintiff’s specific
medical diagnosis and need for additional mattress to defendants).
Mr. White was eventually diagnosed with sciatica at BKDC, but it
does not appear he received that diagnosis while at OBCC.

The

Amended Complaint does not allege that the plaintiff was denied
proper care after this diagnosis. But prior to this diagnosis, the
defendants were only shown a brief referral form that did not
provide any explanation or context relaying the importance of this
request.

(Am. Compl. At 25).

The plaintiff argues that it is

“common knowledge” that failure to adequately treat a medical
problem will cause serious damage.

(Pl. Reply at 6).

But there

was no indication on this note that this request was in connection
with a diagnosed medical issue rather than simple discomfort.
13

Furthermore, many illnesses or injuries are sufficiently minor that
overlooking an aspect of treatment will not necessarily lead to
“serious harm.”

Feliciano,

2017 WL 1189747, at *13.

Absent any

further diagnosis, explanation, or context in Dr. Bhatti’s referral
that might demonstrate its urgency, there is no reason to believe
that a reasonable person should have known of the importance of
this request.
The Amended Complaint fails to satisfy the subjective prong,
and therefore fails to state a Section 1983 claim for failure to
provide medical care.
2.

Personal Involvement

Even if the plaintiff successfully pled a constitutional
violation, to state a claim against the individual defendants, a
“plaintiff must allege sufficient facts to demonstrate that [the]
defendants were personally or directly involved in the violation,
that is, that there was ‘personal participation by one who ha[d]
knowledge of the facts that rendered the conduct illegal.’” Harris
v. Westchester County Department of Corrections, No. 06 Civ. 2011,
2008 WL 953616, at *9 (S.D.N.Y. April 3, 2008) (second alteration
in original) (quoting Provost v. City of Newburgh, 262 F.3d 146,
155 (2d Cir. 2001)).
violation

may

be

Personal involvement in a Section 1983

shown

by

evidence

that:

(1)

the

official

participated directly in the violation; (2) the official, after
14

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

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.

1995); Washington v. Kelly, No. 03 Civ. 4638, 2004 WL 830084, at *3
(S.D.N.Y. April 13, 2004).
Mr. White does not allege any facts that would demonstrate the
personal involvement of several of the individual defendants.
Amended

Complaint

alleges

that

Commissioner

Ponte,

The

former

Commissioner Schriro, and Corizon Health Services Manager Jane/John
Doe failed to make any changes to the mattresses despite being
named in repeated complaints regarding these mattresses.
Compl. at 3-4, 12-13).

(Am.

Defendants Frazier, Beaulieu, and Presely

are not mentioned in the Amended Complaint apart from being named
in

the

caption.

The

plaintiff

presents

no

“further

factual

enhancement” that demonstrates the involvement of any of plaintiffs
that

would

push

these

allegations

possibility and plausibility.”

past

“the

line

between

Twombly, 550 U.S. at 546; see also

Patterson, 2017 WL 1194489, at *7 (similar “meager allegations are
insufficient to show how any specific defendant would have known
15

about the alleged conditions.”); Boyd v. City of New York, Nos. 12
Civ. 3385 et al., 2012 WL 5914007, at *3 (S.D.N.Y. Sept 18, 2012)
(similar pleading “fail[ed] to support a plausible inference that
the individual defendants were personally involved in the alleged
violation.”), report and recommendation adopted in relevant part,
2013 WL 452313 (S.D.N.Y. Feb. 6, 2013).
Read liberally, as a pro se plaintiff’s complaint must be, Mr.
White could be attempting to implicate these officials under a
respondeat superior or chain or command rationale, but neither
theory may serve as the basis for a Section 1983 claim.
v. Keane, 341 F.3d 137, 144-45 (2d Cir. 2003).
recommend

that

the

motion

to

dismiss

with

Hernandez

Accordingly, I

respect

to

these

defendants be granted on this basis as well.
3.

Municipal Liability

The City is a defendant in this case.

To state a claim of

municipal liability, “a plaintiff must make factual allegations
that

support

the

plausible

inference

that

the

constitutional

violation took place pursuant to [a municipal policy or custom.]”
Missel v. County of Monroe, 351 F. App’x 543, 545 (2d Cir. 2009);
see Monell v. Department of Social Services of the City of New
York, 436 U.S. 658, 690-91 (1978).

An “official policy” may be

implemented through a “policy statement, ordinance, regulation, or
decision” that is officially promulgated by a municipality’s policy
16

makers.

Anthony v. City of New York, 339 F.3d 129, 139 (2d Cir.

2003) (quoting Monell, 436 U.S. at 690).

A “custom,” for the

purposes of municipal liability, must be so entrenched and wellestablished as to constitute a practice with the force of law.
Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004).
“And although a municipality may [be] held liable even where there
is no liability as to an individual defendant, no claim will lie
where there is no underlying constitutional violation.”

Ford v.

City of New York, No. 15 Civ. 7598, 2016 WL 4990258, at *5
(S.D.N.Y. Aug. 26, 2016).
Even

if

the

allegations

in

the

Amended

Complaint

were

sufficient to establish that the denial of Mr. White’s request for
a double mattress occurred pursuant to a municipal policy, the fact
remains that Mr. White has failed to allege any constitutional
violation.

Accordingly, I recommend that the claim against the

City be dismissed.
C.

Bob Barker

The plaintiff alleges that the Bob Barker Company is liable
under Section 1983 for supplying the mattresses to the City.
Section 1983 “is not itself a source of substantive rights, but a
method for vindicating federal rights elsewhere conferred by those
parts of the United States Constitution and federal statutes that
it describes.”

Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979).
17

To plead a claim properly under § 1983, a plaintiff must allege
that “(1) the challenged conduct was attributable at least in part
to a person who was acting under color of state law and (2) the
conduct deprived the plaintiff of a right guaranteed under the
Constitution of the United States.”

Thomas v. City of New York,

No. 11 Civ. 0578, 2012 WL 4889257, at *2 (S.D.N.Y. Oct. 16, 2012)
(quoting Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999)).

Despite

providing supplies to the prison, “Barker could not plausibly be
described as one of the officials acting under color of law ‘who
caused the harm’ or did so with the requisite state of mind -namely, deliberate indifference.”

Walker v. Schriro, No. 11 Civ.

9299, 2013 WL 1234930, at *16 (S.D.N.Y. March 26, 2013); see also
Rodriguez v. City of New York; No. 14 Civ. 5172; 2014 WL 4629034,
at *2 (S.D.N.Y. Sept. 12, 2014).

Therefore, I recommend that this

claim be dismissed.
In addition to the Section 1983 claim, according to his answer
to the motion, the plaintiff is pursuing a theory of product
liability

against

the

Bob

Barker

Company.

(Objection

to

Defendant’s -- Bob Barker Company -- Motion to Dismiss Amended
Complaint at 1-2).

The Amended Complaint could be read to assert

a design defect claim.

“[A] defectively designed product is one

which, at the time it leaves the seller’s hands, is in a condition
not reasonably contemplated by the ultimate consumer.” Robinson v.
18

Reed-Prentice Division of Package Machinery Co., 49 N.Y.2d 471,
479, 426 N.Y.S.2d 717, 720 (1980).

The plaintiff argues that

“[t]hese mattresses are made thin (by design) and drastically loses
its support with wear and tare [sic]”

(Am. Compl. at 4).

But

besides these assertions, the plaintiff does not provide any
factual support for this claim.

Even read liberally, the Amended

Complaint does not demonstrate how the product was in a condition
not reasonably contemplated by the ultimate consumer.

Simply put,

a thin mattress may be uncomfortable, but that does not mean it was
defective.

Accordingly, Mr. White’s pleading falls short of

plausibly alleging a design defect claim.

Even if he crossed the

Iqbal line, this is a state law products liability claim in a case
where all federal claims are being dismissed, which would entitle
the Court to decline to exercise supplemental jurisdiction at this
stage of the litigation.

See Walker, 2013 WL 1234930, at *16.

Accordingly, I recommend that all of the claims against the Bob
Barker Company be dismissed.
D.

Leave to Amend

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
19

794, 796 (2d Cir. 1999) (per curiam).
opportunity.

Mr. White has had that

The Honorable Colleen McMahon, U.S.D.J., has already

permitted Mr. White to file an amended complaint and outlined the
standards that it was required to meet. (Order dated Oct. 4, 2016,
Docket No. 5).

The Amended Complaint fails to satisfy those

standards, and there is no reason to believe that affording the
plaintiff another chance would yield a different result.

Leave to

amend should be denied.
Conclusion
For the reasons discussed above, I recommend that each of the
defendants’ motions 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

objections

to

this

Report

and

Recommendation.

Such

objections shall be filed with the Clerk of the 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

objections will preclude appellate review.

20

to

file

timely