Connor v. Brann
Filing
38
OPINION AND ORDER re: 25 MOTION to Dismiss the Complaint filed by Cynthia Brann, Skupien, Bailey, Kisa Smalls. For all of the foregoing reasons, Defendants' motion to dismiss is GRANTED. Should Plaintiff wish to attempt to correct his deficient pleading and allege facts showing the personal knowledge and involvement of any Defendant, he shall do so by filing a Proposed Amended Complaint no later than November 5, 2018, which the Court will construe as a motion to f ile an amended complaint. If he does not do so, the case will be closed. The Clerk of Court is directed to close the motion at Docket Number 25, 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 10/5/2018) (anc) 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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:
QUAVON CONNOR,
:
Plaintiff,
:
:
-against:
:
N.Y.C. D.O.C. COMM. CYNTHIA BRANN, et :
al.,
:
Defendants. :
:
-------------------------------------------------------------X
10/5/2018
17 Civ. 9560 (LGS)
OPINION AND ORDER
LORNA G. SCHOFIELD, District Judge:
WHEREAS, Plaintiff brings this action under 42 U.S.C. § 1983, alleging violations of his
Eighth and Fourteenth Amendment rights in connection with allegedly unconstitutional
conditions of confinement;
WHEREAS, Plaintiff was incarcerated at the Eric M. Taylor Center (“EMTC”) on Rikers
Island, residing in the 7 Lower housing area;
WHEREAS, the Complaint alleges as follows: while Plaintiff was incarcerated at EMTC,
asbestos was discovered in the 7 Lower housing area. After this discovery, Defendants failed to
relocate Plaintiff to a different housing area. As a result of Defendants’ failure to relocate
Plaintiff, Plaintiff is at an elevated risk of developing asbestos-related conditions such as
mesothelioma, tonsillitis, and lung cancer. Plaintiff seeks damages and injunctive relief.
WHEREAS, Defendants are Cynthia Brann, the Commissioner of the New York
Department of Correction; Kisa Smalls, the Warden of EMTC; Deputy Bailey, Deputy Warden of
Security; and Captain Skupien, 7 Lower Housing Area Supervisor. The Complaint rests liability
on their “responsib[ility] for my care, custody, and control . . . and responsibility to provide safe
living conditions.”
WHEREAS, on July 9, 2018, Defendants filed a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6). To survive a motion to dismiss under Rule 12(b)(6), “a complaint 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.” Iqbal, 556 U.S. at 678. On a Rule 12(b)(6) motion, “all
factual allegations in the complaint are accepted as true and all inferences are drawn in the
plaintiff’s favor.” Littlejohn v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015).
WHEREAS, a document filed pro se is to be liberally construed, and a pro se complaint is
held to less stringent standards than formal pleadings drafted by lawyers. See Fowlkes v.
Ironworkers Local 40, 790 F.3d 378, 387 (2d Cir. 2015). Where a plaintiff litigates pro se, “we
read his papers liberally and interpret them to raise the strongest arguments that they suggest.”
Gerstenbluth v. Credit Suisse Secs. (USA) LLC, 728 F.3d 139, 142 (2d Cir. 2013) (internal
quotation marks omitted). Although Plaintiff has not opposed Defendants’ motion, “the
sufficiency of a complaint is a matter of law that the court is capable of determining based on its
own reading of the pleading and knowledge of the law.” McCall v. Pataki, 232 F.3d 321, 322–23
(2d Cir. 2000); accord Roy v. Law Offices of B. Alan Seidler, P.C., 284 F. Supp. 3d 454, 457
(S.D.N.Y. 2018).
WHEREAS, the Complaint does not specify the precise cause of action it asserts, but
reading the Complaint to raise the strongest arguments it suggests, it is best interpreted as raising
claims under 42 U.S.C. § 1983. In order to succeed on a claim under § 1983, “a plaintiff must
allege that (1) the defendant was a state actor, i.e., acting under color of state law, when he
committed the violation and (2) the defendant deprived the plaintiff of rights, privileges or
immunities secured by the Constitution or laws of the United States.” Milan v. Wertheimer, 808
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F.3d 961, 964 (2d Cir. 2015) (internal quotation marks omitted).
WHEREAS, Plaintiff claims that in failing to take action in response to the discovery of
asbestos, Defendants deprived Plaintiff of his rights under the Eighth and Fourteenth
Amendments to the United States Constitution. Plaintiff seeks (1) pain and suffering damages of
$25,000 from each of the four defendants, (2) emotional stress and mental anguish damages of
$25,000 from each of the four defendants, (3) punitive damages of $50,000 from each of the four
defendants and (4) “the immediate closing and evacuation of all inmates.”
For the reasons stated below, it is hereby ORDERED that Defendants’ motion to dismiss
is granted.
Plaintiff’s claims for “pain and suffering damages” and “emotional stress and mental
anguish damages” are barred by the Prison Litigation Reform Act, under which “[n]o Federal
civil action may be brought by a prisoner . . . for mental or emotional injury suffered while in
custody without a prior showing of physical injury or the commission of a sexual act.” 42 U.S.C.
§ 1997e(e). The Complaint fails to allege any physical injury associated with Plaintiff’s asbestos
exposure; indeed, the “Injuries” section of the Complaint states only that Plaintiff suffers from the
future risk of developing asbestos-related illnesses.
Plaintiff’s claim for punitive damages is also barred. Plaintiff seeks to impose liability on
Defendants in their individual capacities, i.e., impose personal or individual liability on each
Defendant. See Patterson v County of Oneida, N.Y., 375 F.3d 206, 229 (2d Cir. 2004)
(explaining liability in “individual capacity”). But a § 1983 plaintiff must plead “a given
defendant’s personal involvement in the claimed violation in order to hold that defendant liable in
his individual capacity.” Warren v. Pataki, 823 F.3d 125, 136 (2d Cir 2016) (internal quotation
marks omitted). The Complaint, which alleges only that Defendants had a responsibility to
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provide for Plaintiff’s safe living conditions, is insufficient. The Complaint fails to allege the
personal involvement of any Defendant as required to plead a sufficient claim.
Finally, Plaintiff’s claim for equitable relief is moot. “In this circuit, an inmate’s transfer
from a prison facility generally moots claims for declaratory and injunctive relief against officials
of that facility.” Shepherd v. Goord, 662 F.3d 603, 610 (2d Cir. 2011). Since the commencement
of this action, Plaintiff has been transferred out of EMTC and is currently incarcerated at the
Greene Correctional Facility in Coxsackie, New York.
* * * *
For all of the foregoing reasons, Defendants’ motion to dismiss is GRANTED. Should
Plaintiff wish to attempt to correct his deficient pleading and allege facts showing the personal
knowledge and involvement of any Defendant, he shall do so by filing a Proposed Amended
Complaint no later than November 5, 2018, which the Court will construe as a motion to file an
amended complaint. If he does not do so, the case will be closed.
The Clerk of Court is directed to close the motion at Docket Number 25, enter judgment
in favor of Defendants, close the case and mail a copy of this Opinion and Order to pro se
Plaintiff.
Dated: October 5, 2018
New York, New York
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