Roland v. City of New York et al

Filing 42

OPINION AND ORDER re: 33 MOTION for Summary Judgment . filed by The City Of New York Joseph Ponte. Defendants move for summary judgment. (As further set forth in this Order.) For the foregoing reasons, Defendants motion for summar y judgment is GRANTED. The Clerk of Court is directed to close the motion at Docket Number 33, enter judgment in favor of Defendants, close the case and mail a copy of this Opinion and Order to pro se Plaintiff. (Signed by Judge Lorna G. Schofield on 9/25/2018) (cf) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
:
HARRY ROLAND,
Plaintiff(s), :
:
:
-against:
:
JOSEPH PONTE, et al.,
Defendant(s). :
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9/25/2018

17 Civ. 2758 (LGS)
OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge:
Pro se Plaintiff Harry Roland brings this action against Defendants City of New York and
former Commissioner Joseph Ponte under 42 U.S.C. § 1983, seeking damages for a violation of
his constitutional rights -- in particular, for the failure to provide adequate meals -- while in the
custody of the New York City Department of Correction (“DOC”). Defendants move for
summary judgment. The motion is granted.
I.

BACKGROUND
The facts below are drawn from Defendants’ Rule 56.1 Statement and other submissions

on this motion, and are construed in favor of Plaintiff as the nonmoving party.1 See Nick’s
Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 113 (2d Cir. 2017).
A.

Plaintiff’s Diagnosis and Mucus-Less Diet

In February 2014, Plaintiff visited Dr. Konstantin Vaizman due to diarrhea and pain in his
lower back and abdomen. Dr. Vaizman conducted a colonoscopy and endoscopy and determined

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Plaintiff did not respond to Defendants’ Rule 56.1 statement, which ordinarily would be
construed as a concession. However, given Plaintiff’s pro se status and the instruction that “the
submissions of a pro se litigant must be construed liberally,” Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam), the failure to respond is excused. See
also Lloyd v. Holder, No. 11 Civ. 3154, 2013 WL 6667531, at *5 (S.D.N.Y. Dec. 17, 2013)
(“Courts in this Circuit typically forgive a pro se plaintiff’s failure to file a Local Rule 56.1
Statement, and generally conduct their own independent review of the record.”).

that Plaintiff suffered from, among other ailments, colitis. Dr. Vaizman prescribed Omeprazole,
which treats gastroesophageal reflux disease and ulcers. Plaintiff stopped taking Omeprazole
because he did not like how it made him feel. Plaintiff did not continue to seek treatment from
Dr. Vaizman because Plaintiff did not want to stay on medication for the remainder of his life.
In 2015, Plaintiff learned of the mucus-less diet proffered by Dr. Sebi, who is not a
medical doctor. Plaintiff visited Dr. Sebi’s website and watched his online videos but did not see
Dr. Sebi in person. The mucus-less diet consists of avoiding foods that create mucus in the body.
Plaintiff’s preferred diet includes organic fruits with black seeds in it and excludes most
manmade foods.
B.

Incarceration

Beginning in July 2016, Plaintiff was detained on Rikers Island in Otis Bantum
Correctional Center (“OBCC”). Through August 2016, Plaintiff informed correction officers and
supervisors of his special diet, and made grievances when he did not receive it. For example, on
July 29, 2016, Plaintiff met with Lisa Choleff, D.O. Dr. Choleff noted that Plaintiff “state[d] that
he does not have a gluten allergy, but does not eat meat of any kind, or dairy products due to
them causing ‘too much muc[]us in his body.’” Dr. Choleff also noted that Plaintiff saw a
nutritionist that day. Plaintiff was placed on the Therapeutic Diet List at OBCC for July 28
through August 17, 2016, as “Gluten Free.”
In late August 2016, Plaintiff was transferred to Brooklyn Detention Complex for
approximately two weeks. At Brooklyn Detention Complex, Plaintiff saw Allen I. Walker, P.A.,
who noted that “[Plaintiff] state[d] allergy to wheat / [g]luten and is [v]egan does not eat meat
poultry [s]ea [f]ood nor [d]airy.” Walker noted that Plaintiff needed vegetarian meal
replacements.
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On September 6, 2016, Plaintiff returned to Rikers Island in Anna M. Kross Center. On
September 7, 2016, Plaintiff was seen by Terry Gravsande, R.P.A. Gravesande requested that
Plaintiff receive a vegan diet and that Plaintiff be added to the therapeutic diet list. After
receiving vegan meals for several days, Plaintiff was placed in solitary confinement for fifteen
days, where Plaintiff did not receive gluten free or vegan meals. While in solitary confinement,
Plaintiff made complaints to DOC staff. On October 5, 2016, Plaintiff filed a grievance with
DOC for the denial of vegan meals. On October 7, 2016, DOC answered Plaintiff’s grievance by
informing Plaintiff that the dietician “confirmed that she just received [Plaintiff]’s name and
[Plaintiff] has been put on the list to receive a gluten free/vegetarian diet.”
In late September 2016, Plaintiff was transferred to George R. Vierno Center and began to
receive his requested diet on an irregular basis. Plaintiff complained to various DOC staff, who
sometimes helped Plaintiff get his preferred meals.
On May 26, 2017, Plaintiff received a container marked “Gluten-free” that, according to
both Plaintiff and a correction officer who checked Plaintiff’s food, contained meat. Plaintiff
filed a grievance on June 1, 2017. DOC staff said they would rectify the situation, but Plaintiff
does not know if it was actually rectified.
Until August 2017, Plaintiff continued to receive breakfasts containing wheat. From July
2016 until August 2017, Plaintiff saw physicians and nurses, but no dietician.
Plaintiff receives food in containers marked gluten free and vegan. However, Plaintiff has
not opened a gluten free container since May 2017. Plaintiff has not eaten any fruit or vegetables
while incarcerated. Plaintiff asserts that the DOC should provide organic fruits and vegetables.

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C.

Procedural History

On April 17, 2017, Plaintiff filed the instant action seeking $5,000,000 in damages. On
March 30, 2018, Defendants moved for summary judgment. Plaintiff did not file an opposition.
II.

STANDARD
Summary judgment is appropriate where the record establishes that “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “A genuine issue of material fact exists if ‘the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.’” Nick’s Garage, Inc., 875 F.3d at 113
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The court must construe
the evidence in the light most favorable to the nonmoving party and must draw all reasonable
inferences in favor of the nonmoving party. See id. When the movant has properly supported its
motion with evidentiary materials, the opposing party must establish a genuine issue of fact by
“citing to particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A). “[A] party may
not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion
for summary judgment.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (alteration in
original) (internal quotation marks omitted).
Where, as here, a party appears pro se, a court must construe “the submissions of a pro se
litigant . . . liberally” and interpret them “to raise the strongest arguments that they suggest.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal
quotation marks omitted) (collecting cases); Smith v. Fischer, 803 F.3d 124, 127 (2d Cir. 2015)
(confirming Triestman’s approach to pro se litigants). Pro se status does not, however, “relieve [a
non-movant] of his duty to meet the requirements necessary to defeat a motion for summary
judgment.” Dixon v. Zenk, 361 F. App’x 218, 219–20 (2d Cir. 2010) (summary order); accord
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O’Callaghan v. Uber Corp. of Cal., No. 17 Civ. 2094, 2018 WL 3302179, at *5 (S.D.N.Y. Jul. 5,
2018). “Bald assertions by a pro se litigant, completely unsupported by evidence, are not
sufficient to overcome a motion for summary judgment.” Harris v. City of New York, No. 13
Civ. 7788, 2016 WL 427908, at *3 (S.D.N.Y. Feb. 3, 2016) (internal quotation marks omitted).
III.

DISCUSSION
A.

Defendant Ponte

The evidence in the record is insufficient for a reasonable jury to find Defendant Ponte
personally liable.
“To prevail on a § 1983 claim, a plaintiff must establish (1) the violation of a right,
privilege, or immunity secured by the Constitution or laws of the United States (2) by a person
acting under the color of state law.” Simpson v. Town of Warwick Police Dep’t, 159 F. Supp. 3d
419, 430 (S.D.N.Y. 2016) (citing West v. Atkins, 487 U.S. 42, 48 (1988) and Flagg Bros., Inc. v.
Brooks, 436 U.S. 149, 155–57(1978)). “It is well settled in this Circuit that personal involvement
of defendants in alleged constitutional deprivations is a prerequisite to an award of damages
under § 1983.” Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006) (internal quotation marks
omitted). Traditionally, personal involvement can be established in five ways:
(1) the defendant participated directly in the alleged constitutional violation, (2)
the defendant, after being informed of the violation through a report or appeal,
failed to remedy the wrong, (3) the defendant created a policy or custom under
which unconstitutional practices occurred, or allowed the continuance of such a
policy or custom, (4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts, or (5) the defendant exhibited
deliberate indifference to the rights of inmates by failing to act on information
indicating that unconstitutional acts were occurring.

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Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (emphasis omitted) (citing Colon
v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)).2
Although the Complaint names Defendant Ponte as a party, the record contains no
evidence that implicates him. In his deposition, Plaintiff stated that he believed that by naming
Defendant Ponte, Plaintiff would not have to name individual correction officers. Dkt. No. 35-1
at 73:18-74:11. Naming an individual a party -- without more -- is insufficient to establish
personal involvement giving rise to direct liability. See Schoon v. Berlin, No. 7 Civ. 2900, 2011
WL 1085274, at *5 (S.D.N.Y. Mar. 23, 2011) (granting a motion to dismiss for failure to “allege
any personal or supervisory involvement of any of the individual defendants” where the operative
complaint was “devoid of any mention of [the individual] defendants” and contained “nothing . . .
that could support an inference of liability with regard to any of the individual defendants”).
Further, although a defendant may be liable “where unconstitutional acts are the result of a policy
promulgated by the defendant,” Brock v. Wright, 315 F.3d 158, 166 (2d Cir. 2003), to the extent
that DOC Directive 3253R-A -- signed by Defendant Ponte -- is a policy DOC staff followed
when providing Plaintiff his meals, for the reasons explained below, no unconstitutional acts

2

The Second Circuit has yet to determine how Iqbal effects Colon. See Grullo, 720 F.3d at 139
(recognizing possible conflict among the cases); see also Shaw v. Prindle, 661 F. App’x 16, 18
n.2 (2d Cir. 2016) (summary order) (“[T]he Supreme Court’s decision in Ashcroft v. Iqbal . . .
may have heightened the requirements for showing a supervisor’s personal involvement with
respect to certain constitutional violations.”). This issue is not presented and need not be
addressed in this case because Plaintiff has failed to allege Defendant Ponte’s personal
involvement under any of the Colon categories. See Ross v. Correct Care Sols. LLC, No. 11 Civ.
8542, 2013 WL 5018838, at *5 (S.D.N.Y. Sept. 13, 2013) (“The Supreme Court’s decision in
Iqbal, which found that a supervisor can be held liable only ‘through the official’s own individual
actions,’ arguably casts doubt on the continued viability of some of the categories set forth in
Hastings on Hudson and Colon. For the purposes of this case, however, it is not necessary to
explore this issue because the complaint fails to plead that [the individual defendants] were
personally involved under any of the Hastings on Hudson categories.”) (internal citations
omitted).
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occurred. As a result, DOC Directive 3253R-A is not a basis to hold Defendant Ponte personally
liable.
Defendants’ motion for summary judgement is granted as to Defendant Ponte.
B.

Other Potential Individual Defendants
1.

Unconstitutional Conditions of Confinement -- Failure to Provide
Adequate Nutrition

Even if Plaintiff could amend his pleading to add as Defendants other individual DOC
employees who played a role in his conditions of confinement as they pertain to his diet, such an
effort would be futile as those conditions do not give rise to a constitutional violation. See
Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (“Leave to amend, though
liberally granted, may be properly denied for . . . futility of amendment.”) (internal quotation
marks omitted); accord Sanya Lanausse v. City of New York, No. 15 Civ. 1652, 2016 WL
2851337, at *5 (S.D.N.Y. May 13, 2016) (“Although liberally granted, courts may properly deny
leave [to amend a complaint] if to do so would be futile.”).
A claim of unconstitutional conditions of confinement under the Fourteenth Amendment
requires a detainee to satisfy a two-prong test. Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017).
First, the detainee must satisfy the “objective prong” by “showing that the challenged conditions
were sufficiently serious to constitute objective deprivations of the right to due process.” Id.
(citations omitted). Second, the detainee must satisfy the “‘subjective prong’ -- perhaps better
classified as a ‘mens rea prong’ or ‘mental element prong’ -- showing that the officer acted with
at least deliberate indifference to the challenged conditions.” Id. The “subjective prong” can be
met by showing that the defendants actually knew about the condition and disregarded it, or that a
reasonable person should have known about the danger and it was disregarded. Id. (citing
Farmer v. Brennan, 511 U.S. 825 (1994)).
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For the following reasons, the evidence in the record fails to give rise to a triable issue of
fact that the conduct of DOC staff regarding Plaintiff’s diet created an unconstitutional condition
of confinement.
a.

Objective Prong

“Under both the Eighth and Fourteenth Amendments, to establish an objective
deprivation, ‘the inmate must show that the conditions, 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.’” Darnell, 849 F.3d at 30.3 In making that evaluation,
“[t]here 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, 849 F.3d at 30 (citing Blissett v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995)).
“The Eighth Amendment requires ‘nutritionally adequate food that is prepared and served
under conditions which do not present an immediate danger to the health and well being of the
inmates who consume it.’” Willey v. Kirkpatrick, 801 F.3d 51, 69 (2d Cir. 2015) (quoting Robles
v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983)); accord Roundtree v. City of New York, No. 15 Civ.
8198, 2018 WL 1586473, at *8 (S.D.N.Y. Mar. 28, 2018). “[A]ssuming a diet’s nutritional
adequacy, prison officials have the discretion to control its contents.” Whitenack v. Armor
Medical, No. 13 Civ. 2071, 2013 WL 2356110, at *6 (E.D.N.Y. May 28, 2013) (quoting Word v.
Croce, 169 F. Supp. 2d 219, 226 (S.D.N.Y. 2001)). “[A]bsent religious or medically peculiar
circumstances, a prisoner does not have a right to a specialized diet while incarcerated, vegetarian
or otherwise.” Whitenack, 2013 WL 2356110, at *6 (quoting Word, 169 F. Supp. 2d at 226).

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The deliberate indifference objective prong is evaluated under the same standard for both the
Eighth and Fourteenth Amendments. Ackridge v. Aramark Corr. Food Servs., No. 16 Civ. 6301,
2018 WL 1626175, at *19 n.19 (S.D.N.Y. Mar. 30, 2018) (citing Darnell, 849 F.3d at 30).
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Plaintiff does not allege that he was medically diagnosed with a condition necessitating a
mucus-less diet, or that his dietary preference is religiously motivated. First, Plaintiff contends
that prior to his incarceration, he adhered to a mucus-less diet on the advice of the teachings of
Dr. Sebi. Plaintiff has not met Dr. Sebi in person, and Dr. Sebi is not a medical professional;
rather, Plaintiff’s mucus-less diet is self-prescribed. Second, Plaintiff does not allege any
religious motivation behind his diet. Thus, Plaintiff has not established an objective deprivation.
Compare Hyman v. Nassau Cty. Corr. Facility, No. 12 Civ. 5099, 2013 WL 182816, at *4
(E.D.N.Y. Jan. 15, 2013) (granting a motion to dismiss for failure to state a claim) (“Since
plaintiff does not allege that he was deprived of a nutritionally adequate diet, nor that he was
deprived of a medically indicated or religiously necessary diet, while incarcerated . . . , his mere
disagreement with the portions and contents of the meals provided to inmates . . . does not rise to
the level of a constitutional deprivation.”), with Willey, 801 F.3d at 69 (diet of stale bread and
rotten cabbage is sufficient to state a claim), and Robles, 725 F.2d at 16 (food contaminated with
“dust, rocks, glass and human waste” is sufficient to state a claim).
b.

Subjective Prong

A pretrial detainee may satisfy the “subjective prong” in one of two ways. He may “prove
that the defendant-official acted intentionally to impose the alleged condition,” or, alternatively,
he may prove that the defendant-official “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. “In
other words, the ‘subjective prong’ (or ‘mens rea prong’) of a deliberate indifference claim is
defined objectively.” Id.

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In this case, even if Plaintiff had shown an objective deprivation, the record lacks
evidence from which a reasonable jury could find that DOC officers acted intentionally or
recklessly in responding to Plaintiff’s requests. To the contrary, the record shows that DOC staff
were responsive to his complaints. For example, after visits with medical staff, Plaintiff was
placed on dietary restrictions lists in July 2016, August 2016 and September 2016. When
Plaintiff complained about not receiving correct meals in October 2016, the DOC responded two
days later and placed Plaintiff on the gluten free/vegetarian diet list. After that, Plaintiff contends
that he received his preferred meals on an irregular basis. When he complained to DOC staff,
Plaintiff sometimes received help getting his preferred meals. Plaintiff has continued to receive
gluten free and vegan containers of food, but Plaintiff does not open containers marked gluten
free. Though Plaintiff alleges that he did not see a dietician until August 2017, Plaintiff saw
physicians and nurses at least three times before that. These actions foreclose the claim of
deliberate indifference. Wingate v. Gives, 725 F. App’x 32, 36 (2d Cir. 2018) (summary order)
(“[O]n the record presented, a reasonable jury could only find that defendants were not
deliberately indifferent, as the medical records show that medical staff met with [the plaintiff]
repeatedly about his dietary requests, issued prescriptions, and referred him to and worked with a
dietician, and that dieticians met with him on numerous occasions.”); Smith v. Fischer, 500 F.
App’x 59, 61–62 (2d Cir. 2012) (summary order) (“Even if [plaintiff] had shown that the special
meals provided by [defendant] represented a sufficiently serious danger to his health, [plaintiff]
failed to show facts sufficient to demonstrate that [defendant] acted with deliberate indifference.
It is undisputed that prison officials offered [plaintiff] access to special diets and arranged for him
to meet with a registered dietician.”); McWillis v. Cty. of Orange, No. 17 Civ. 4805, 2018 WL
3038497, at *4 (S.D.N.Y. June 19, 2018) (granting a motion to dismiss for failure to state a claim
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where “the documents attached to plaintiff’s complaint suggest [defendant] served plaintiff meals
it considered consistent with his dietary restrictions, but plaintiff disagreed with [defendant]’s
determination of what fell into that category”); Mastroianni v. Reilly, 602 F. Supp. 2d 425, 436
(E.D.N.Y. 2009) (“Based on the record, the Court finds that the diet provided to the plaintiff did
not pose an imminent danger to his health and the responsiveness of [defendant] staff to the
plaintiff’s dietary needs raises no constitutional concerns with respect to his health needs.”).
Plaintiff thus fails to present evidence giving rise to a triable issue of fact for either prong
of the unconstitutional conditions of confinement test. A reasonable jury could not find that the
acts of DOC staff who provided Plaintiff with his diet formed the basis of a constitutional
violation.
C.

Defendant City of New York

Because Plaintiff has failed to show that the acts of DOC staff who affected Plaintiff’s
conditions of confinement -- in particular his diet -- constituted a constitutional violation,
Defendant City of New York cannot be held liable. To hold a municipality liable for a
constitutional violation under § 1983, a plaintiff must prove 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 Soc. Servs., 436 U.S. 658, 690–91 (1978)); accord Mitchell v. City of New York, 841 F.3d 72,
80 (2d Cir. 2016). “[T]he City cannot be liable under Monnell where Plaintiff cannot establish a
violation of his constitutional rights.” Askins v. Doe, 727 F.3d 248, 253 (2d Cir. 2013) (internal
quotation marks omitted). Defendants’ motion for summary judgment as to Defendant City of
New York is granted.

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IV.

CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED.
The Clerk of Court is directed to close the motion at Docket Number 33, enter judgment

in favor of Defendants, close the case and mail a copy of this Opinion and Order to pro se
Plaintiff.
Dated: September 25, 2018
New York, New York

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