Little et al v. Municipal Corporation, The City of New York

Filing 166

OPINION & ORDER re: 116 MOTION to Dismiss Romero's Second Amended Complaint, in its entirety, and to partially dismiss Little's Second Amended Complaint, filed by Warden Duffy, Mikell Spears, Warden Ardo, Bernadette Brow n, Elio Elias, Commissioner Dora B. Schriro, 103 MOTION OPPOSITION TO MOTION TO DISMISS, filed by Anthony Romero. Defendants' Motion To Dismiss is granted with respect to all of Romero's claims on exhaustion grounds and is grante d as to Little's claims that he was unconstitutionally classified, denied a work assignment, and denied access to the courts. The Motion is denied without prejudice as to Little's claims for excessive confinement, unsanitary housing cond itions, denial of food, exposure to extreme temperatures, and denial of laundry services, as well as his claims of excessive force for the use of chemical agent by Defendant Yousuf and the alleged use of force by Defendant Spears. Should Defendants wish to file a renewed motion to dismiss on Little's conditions-of-confinement and excessive force claims, Defendants are to submit a pre-motion letter to the Court within 14 days of the date of this Opinion & Order. Little is to respond with in 14 days thereafter. The Court will then issue a scheduling order as to any viable motion. Pursuant to the Court's order, (Dkt. No. 162), the stay of discovery is lifted. The Clerk of Court is respectfully requested to terminate the pending Motions. (Dkt. Nos. 103, 116.) SO ORDERED. (Signed by Judge Kenneth M. Karas on 3/29/17) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CLIFTON LITTLE and ANTHONY ROMERO,
Plaintiffs,
v.
MUNICIPAL CORPORATION, THE CITY OF
NEW YORK, COMMISSIONER DORA B.
SCHRIRO, WARDEN DUFFY, DEPUTY
WILLIAMS, CAPTAIN BERNADETTE
BROWN, WARDEN ARDO, OFFICER
ROMEIRO HILL, MS. JACKSON, OFFICER
CREGG, OFFICER CHAPMAN, CAPTAIN
VAUGHN, OFFICER STOKES, DEPUTY
WARDEN BAILEY, OFFICER YOUSIF,
OFFICER LEWIS, CAPTAIN WYNN, CAPTAIN
CIMATO, OFFICER ANTONIO BRAVO,
OFFICER MIKELL SPEARS, and CAPTAIN
ELIO ELIAS,

No. 12-CV-5851 (KMK)
OPINION & ORDER

Defendants.

Appearances:
Clifton Little
Dannemora, NY
Pro Se Plaintiff
Anthony Romero
Romulus, NY
Pro Se Plaintiff
Evan Schnittman, Esq.
Corporation Counsel of the City of New York
New York, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Anthony Romero (“Romero”) and Clifton Little (“Little,” and together, “Plaintiffs”),
proceeding pro se, bring this Action against Municipal Corporation, the City of New York (“the

City”), Commissioner of the New York City Department of Correction Dora B. Schriro
(“Commissioner Schriro”), Warden Duffy (“Duffy”), Deputy Williams (“Williams”), Captain
Bernadette Brown (“Brown”), Warden Ardo (“Ardo”), Officer Romeiro Hill (“Hill”), Ms.
Jackson (“Jackson”), Officer Cregg (“Cregg”), Officer Chapman (“Chapman”), Captain Vaughn
(“Vaughn”), Officer Stokes (“Stokes”), Deputy Warden Bailey (“Bailey”), Officer Yousuf
(“Yousuf”), Officer Lewis (“Lewis”), Captain Wynn (“Wynn”), Captain Cimato (“Cimato”),
Officer Antonio Bravo (“Bravo”), Officer Mikell Spears (“Spears”), and Captain Elio Elias
(“Elias,” and collectively, “Defendants”), for violations of constitutional rights Plaintiffs suffered
while incarcerated at the George R. Vierno Center (“GRVC”) at Rikers Island. 1 Both Romero
and Little separately filed Second Amended Complaints, (Dkt. Nos. 68, 99), that are the subject
of the instant Motion To Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (the
“Motion”). (Dkt. No. 116.) 2 For the reasons to follow, Defendants’ Motion is granted in part
and denied in part.
1

The Court notes that Yousuf’s name is spelled incorrectly as “Yousif” in Little’s Second
Amended Complaint. The Court refers to Defendant Yousuf by the correct spelling of his name,
despite the fact that the caption of this case reflects the misspelling.
2

On November 7, 2014, Plaintiffs filed an Amended Complaint naming, among others,
Jackson and Williams as additional Defendants. (See Dkt. Nos. 67, 68.) In a letter to the Court
dated July 7, 2016, counsel for Defendants stated that “[the Department of Correction (‘DOC’)]
is unable to waive service on behalf of Officer Jackson . . . [and] Deputy Williams . . . because
DOC cannot specifically identify which individual Plaintiff Little and/or Plaintiff Romero intend
to sue.” (Dkt. No. 115.) The letter indicated that “[a]ccording to DOC’s records, there are
numerous correctional officers with the last name[] of Jackson, . . . and more than one Deputy
Warden and/or Assistant Deputy Warden with the last name[] of Williams . . . .” (Id.). In a
subsequent letter to the Court, counsel asserted that Romero had failed to provide additional
identifying information for Defendants Jackson and Williams and thus sought dismissal of “all
claims against Officer Jackson and Deputy Williams . . . based upon Plaintiff Romero’s failure to
prosecute.” (Dkt. No. 124.) In a memo endorsement dated October 11, 2016, the Court denied
the request to dismiss without prejudice and noted that “Defendants [did] not address Plaintiff’s
argument that he has provided the relevant timeframe, location, and underlying conduct at issue,
and [did] not explain why, even with such information, Defendants [we]re still unable to
adequately narrow the universe of potential defendants.” (Dkt. No. 141.) Defendants were
2

I. Background
A. Factual Background
The following facts are drawn from Plaintiffs’ Second Amended Complaints (“SACs”)
and are taken as true for the purpose of deciding the instant Motion. 3
1. Plaintiff Romero’s Allegations
Romero alleges that he was subjected to excessive confinement on “about 15 to 20
[occasions]” when “for long periods of time” he was “locked in [his] cell[].” (Second Am.
Compl. of Anthony Romero (“Romero SAC”) 3–4 (Dkt. No. 68).) Specifically, Romero asserts
that on July 11, 2012, he and other inmates “were held and locked in [their] cells [for]
approximately 23 hours for no apparent reason.” (Id. at 7.)
Romero asserts that 4-B Housing Unit (“4-B”) “started having sewage back[]ups and the
housing area would get flooded with feces[] [and] urine,” (id. at 3), and he was forced to wait in
the flooded cell while Defendants “fix[ed] the problem,” (id. at 4). Romero was denied “a linen
[e]x[]change so that [he] could receive clean sheets, blankets, [and] towels,” and he and other
inmates “had to clean [their] own property . . . without the help of a washer or dryer.” (Id.)

instructed that they could respond to the Court’s endorsement by October 29, 2016, but
Defendants did not do so. (Id.) Thus Defendants Jackson and Williams have yet to be served
and therefore do not join in Defendants’ instant Motion.
On November 7, 2014, Municipal Corporation and the City of New York were
terminated as parties to the Action. (See Dkt. (minute entry Nov. 7, 2014).)
3

In his SAC, Plaintiff Romero lists Timothy Beckman, Terry Patterson, Jalah Knight,
and Martin Concepcion as “Parties To This Action.” (Second Am. Compl. of Anthony Romero
1 (Dkt. No. 68).) In its prior Opinion & Order, the Court specified that “Plaintiffs must file their
own amended complaint, which must include the signature of the Plaintiff to which it is to be
attributed.” (Op. & Order 41 (Sept. 29, 2014) (Dkt. No. 61).) The Court further clarified that “if
a Plaintiff cannot sign, and thereby join, another Plaintiff’s amended complaint, he must submit
his own signed amended complaint to the Court.” (Id.) As Beckman, Patterson, Knight, and
Concepcion have neither signed another Plaintiff’s amended complaint, nor submitted their own,
the claims of these Plaintiffs are dismissed.
3

Romero was not reimbursed for the property which was damaged during the flooding. (Id. at 7.)
As a result of the “dirty environment” to which Romero was subjected, he “developed . . . bad
allergies . . . [and] skin irr[i]tation.” (Id. at 4.)
Romero and other inmates at GRVC “were strip searched and all of [their] property [was]
taken from [them].” (Id. at 3.) Additionally, Romero was “without food for . . . about 14 or 16
hours.” (Id.) 4
Romero also asserts that he was functionally denied access to the law library because “if
[he] had a call-out . . . [he] had to decide which one [he] wanted to go to or which one was the
most important that day,” as the available resources were offered at the same time. (Id. at 4.)
Consequently, Romero “wasn’t able to research [his] [criminal] case properly.” (Id. at 5.)
2. Plaintiff Little’s Allegations 5
On March 3, 2012, Little’s cell in 4-B was flooded when a “slop sink” overflowed and he
was denied access to his cell to remove his property from the floor to ensure it was not damaged.
(See Second Am. Compl. of Clifton Little (“Little SAC”) ¶¶ 3–8 (Dkt. No. 99).) 6 Little was
subsequently confined to the cell flooded with water “filled with urine, feces[,] and other
unidentified substances,” with “no ventilation and a window that would not open.” (Id. ¶ 15.)

4

It is unclear from Romero’s SAC the dates on which the alleged strip searches and
withholding of food took place.
5

Defendants do not move to dismiss Plaintiff Little’s claims regarding First Amendment
retaliation, deliberate indifference to his medical needs stemming from a March 3, 2012 asthma
attack, property damage, and excessive force arising from an incident on February 15, 2013.
(See Mem. of Law in Supp. of City Defs.’ Mot. To Dismiss Pl. Romero’s Second Am. Compl.,
in its Entirety, and To Partially Dismiss Pl. Little’s Second Am. Compl.) 1 n.1 (Dkt. No. 118).)
Therefore, the facts pertaining to such claims are not included herein.
6

Little’s SAC consists of an Amended Complaint form, along with a handwritten
attachment with a section labelled “Facts of Claim.” Paragraph numbers refer to the handwritten
attachment, at ECF pages numbered 6–20.
4

Following the flooding, Little was escorted to the prison gym, where “the windows were
open and the air was extremely cold.” (Id. ¶ 19.) Little requested that the windows be closed
and that he be given a blanket, but was denied both requests. (Id. ¶¶ 19–20.) During this time,
Little alleges that he alerted Defendant Elias that he had not eaten for 13 hours, but was told he
could eat at 6 a.m. when breakfast was served. (Id. ¶ 21.) Little was returned to his flooded cell,
where he discovered his sink and toilet were not working. (Id. ¶ 23.) At 6 a.m., 18 hours after
Little’s previous meal, inmates were “issued half a pint of 1% milk and [four] slices of hard
molded bread.” (Id. ¶ 25.)
On or about April 4, 2012, Little was “reclassified and placed on a Security Risk Group
[(‘SRG’)] list” by Defendant Vaughn because he was “an alleged ‘active’ gang member.” (Id.
¶ 28.) Little asserts that such action was taken “without conducting any form of an investigation
or providing [him] any form of a notice.” (Id.) As a result of Little’s reclassification, he lost his
job as an inmate hair stylist. (Id. ¶ 29.) When Little sought to file a grievance in response, he
was told “being fired was not a grievable issue” and was denied his request for a grievance
number for the grievances he eventually filed in connection with both losing his job and the
alleged inhumane conditions due to the flooding of 4-B. (Id. ¶ 30.)
Little also asserts that Defendants Vaughn, Stokes, and Chapman denied Little’s right of
access to the courts and restricted him from using the law library. (Id. ¶¶ 31–36, 48.) “Due to
this denial of legal services[,] [Little] was unable to file any Article 78 petition challenging” his
reclassification as SRG and his property damage. (Id. ¶ 34.) Little further alleges that the denial
“affected [his] criminal proceedings,” (id. ¶ 35), and that “[h]ad it not been for [Defendant]
Chapman’s denial of law library services, [Little] would not have been convicted or faced a
trial,” (id.).

5

On August 11, 2012, Little alleges that Defendant Yousuf sprayed Little with “‘O.C.’
([c]hemical [a]gent)” and he was “handcuffed . . . and taken to intake and placed in a holding
pen, . . . until he was seen by medical staff for the exposure to ‘O.C.’” (Id. ¶ 37.) Before being
seen by medical staff, Defendant Wynn told Little “when medical calls you in you better say you
have no injuries because if you don’t hold it down and my officer gets in trouble you will get
fucked up.” (Id. ¶ 38 (internal quotation marks omitted).) “[O]ut of fear,” Little told medical
staff “he had no injuries and refuse[d] to sign any documents.” (Id. ¶ 39.)
On August 12, 2012, Little “was handcuffed, placed in a [Department of Correction
(‘DOC’)] van and taken from GRVC to [Otis Bantum Correctional Center (‘OBCC’)] for
[prehearing detention (‘PHD’)] in OBCC’s [Central Punitive Segregation Unit (‘CPSU’)] area
under the recommendation of [D]efendant Wynn and approval of [D]efendant Duffy.” (Id. ¶ 42.)
Little “remained in a single cell with no vent[i]l[]ation for a total of seven days without any of
his personal property.” (Id.) Little was not given a hearing, notice of infraction, or misbehavior
report in relation to the incident, and suffered “extreme headaches and anxiety” as a result of this
confinement. (Id.) 7
B. Procedural History
Due to the age and procedural complexity of the Action, the Court recounts only the
procedural history relevant to the instant Motion.8

7

Little’s SAC appears to omit ¶¶ 43–44, although the pages are consecutively numbered,
suggesting that there is an error in the numbering of paragraphs and not an omission of
information. (See Little SAC ¶¶ 42, 45.)
8

For a full recitation of the procedural history of the case, see the Court’s prior Opinion
& Order of September 29, 2014. (See Op. & Order 4–6.)
6

In an Opinion & Order (“Opinion”) dated September 29, 2014, the Court granted
Defendants’ motion to dismiss and dismissed Plaintiffs’ Amended Complaint without prejudice.
(Op. & Order (“Opinion”) 41 (Dkt. No. 61).) In doing so, the Court granted Plaintiffs
permission to file a second amended complaint. (Id.) The Court’s Opinion further instructed
that “[t]he other Plaintiffs must file their own amended complaint, which must include the
signature of the Plaintiff to which it is to be attributed” and that “if a Plaintiff cannot sign, and
thereby join, another Plaintiff’s amended complaint, he must submit his own signed amended
complaint to the Court.” (Id.) On November 10, 2014, Plaintiff Romero filed his signed SAC.
(Dkt. No. 68.)
In an attempt to comply with the Court’s order, Little filed an Amended Complaint on
November 19, 2014, naming John and Jane Doe Defendants. (Dkt. No. 72.) On January 15,
2015, the Court directed Defendants to identify the John and Jane Doe Defendants who appear in
Little’s Amended Complaint pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997). (See
Dkt. No. 76.) 9 By letter dated March 9, 2015, Defendants informed the Court that they had
partially complied with the Valentin Order and requested an extension of time to continue their
attempt to ascertain the identities of certain John Doe Defendants, (see Dkt. No. 78), which the
Court granted on March 10, 2015, (Dkt. No. 79). By letter dated March 30, 2015, Defendants
informed the Court that they “ha[d] made a genuine effort to comply with the Court’s Valentin
Order, and . . . ha[d] been working with [DOC] employees to determine the remaining
identi[t]ies of the John [or Jane] Doe Defendants.” (Dkt. No. 80.) Defendants sought more
information from Little to ascertain the identities of two (or more) John and/or Jane Doe

9

In Valentin, the Second Circuit held that a pro se litigant is entitled to assistance from
the district court in identifying a defendant. 121 F.3d at 75.
7

Defendants, (id. at 2), and on April 1, 2015, the Court ordered that Little supply certain
information towards that end, (Dkt. No. 82). Little responded by letter dated April 14, 2015,
(Dkt. No. 83), but was unable to provide information sufficient to allow Defendants to identify
the remaining John Does, (Dkt. No. 84). Several letters were exchanged between the Parties, but
Little did not provide any additional information as to the identities of the remaining John Does.
(Dkt. Nos. 87–88, 90.) On February 9, 2016, the Court provided Little with one final
opportunity to provide more information to allow Defendants to identify the remaining John
Does, ordering Little to provide the information by March 1, 2016, or risk dismissal of the claims
against those Defendants, (Dkt. No. 94), but Little never provided the requested information. On
March 18, 2016, the Court dismissed the claims against the remaining John Does, without
prejudice, pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute. (Dkt. No.
95.) The Court instructed Little to file a Second Amended Complaint naming the John Doe
Defendants identified by Defendants in their March 9, 2015 letter. (Id. at 2.)
On May 2, 2016, Little filed his SAC. (Dkt. No. 99.) On July 8, 2016, Defendants filed
the instant Motion and accompanying papers. (Dkt. Nos. 116–20). On August 22, 2016,
Defendants’ counsel filed a letter requesting that the Court deem the Motion as submitted on
behalf of Defendants Lewis, Vaughn, Hill, Wynn, Bravo, Cimato, Cregg, Stokes, and Bailey,
(Dkt. No. 131), and the Court granted the request the following day, (Dkt. No. 132).
On October 3, 2016, Romero filed his opposition, (Dkt. No. 136), and on November 2,
2016, Little filed his opposition, (Dkt. No. 144). On November 9, 2016, Defendants’ counsel
filed a letter requesting that the Court deem the Motion as submitted on behalf of Defendant
Yousuf, (Dkt. No. 147), and the Court granted the request on the same day, (Dkt. No. 148). In a
letter to the Court dated November 16, 2016, Little requested reconsideration of the Court’s

8

decision to consider the Motion submitted on behalf of Defendant Yousuf, and additionally
requested that the Court grant default judgment against Defendants Spears, Hill, Brown, Bailey
and Cregg. (Dkt. No. 149). Defendants filed a response to Little’s letter on November 23, 2016,
(Dkt. No. 150), and the Court denied Little’s request on November 28, 2016, (Dkt. No. 152). On
December 2, 2016, Defendants filed their reply to Plaintiffs’ opposition to the Motion. (Dkt. No.
154.) 10
II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint “does not need detailed factual
allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(alteration and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil
Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement.” Id. (alteration and internal quotation marks
omitted). Rather, a complaint’s “[f]actual allegations must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated
adequately, it may be supported by showing any set of facts consistent with the allegations in the

10

On February 13, 2017, Defendants requested a stay of discovery pending the Court’s
determination on the instant Motion. (Dkt. No. 161.) The Court granted the request on February
27, 2017. (Dkt. No. 162.) In a letter dated March 10, 2017, Little requested that the Court
reconsider its decision to stay discovery, (Dkt. No. 163), and Defendants responded in a letter on
March 21, 2017, (Dkt. No. 164). The Court denied Little’s request for reconsideration on March
21, 2017. (Dkt. No. 165.)
9

complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to relief that
is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his] claims across the line from
conceivable to plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556 U.S. at 679
(“Determining whether a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense. But where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader
is entitled to relief.’” (second alteration in original) (citation omitted) (quoting Fed. R. Civ. P.
8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the
hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery
for a plaintiff armed with nothing more than conclusions.”).
“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), and
“draw[] all reasonable inferences in favor of the plaintiff,” Daniel v. T & M Prot. Res., Inc., 992
F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145
(2d Cir. 2012)). Additionally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must
confine its consideration to facts stated on the face of the complaint, in documents appended to
the complaint or incorporated in the complaint by reference, and to matters of which judicial
notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999)
(internal quotation marks omitted); see also Wang v. Palmisano, 157 F. Supp. 3d 306, 317
(S.D.N.Y. 2016) (same).
Because Plaintiffs are proceeding pro se, the Court construes their “submissions . . .
liberally” and interprets them “to raise the strongest arguments that they suggest.” Triestman v.

10

Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal quotation marks
omitted). Furthermore, for the same reason, it is appropriate to consider “materials outside the
complaint to the extent that they are consistent with the allegations in the complaint,” Alsaifullah
v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug. 2, 2013) (internal
quotation marks omitted), including “documents that a pro se litigant attaches to his opposition
papers,” Agu v. Rhea, No. 09-CV-4732, 2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010)
(italics omitted); see also Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) (noting that a
court may consider “factual allegations made by a pro se party in his papers opposing the
motion” (italics omitted)); Rodriguez v. Rodriguez, No. 10-CV-891, 2013 WL 4779639, at *1
(S.D.N.Y. July 8, 2013) (“Although the [c]ourt is typically confined to the allegations contained
within the four corners of the complaint, when analyzing the sufficiency of a pro se pleading, a
court may consider factual allegations contained in a pro se litigant’s opposition papers and other
court filings.” (citation and internal quotation marks omitted)).
B. Analysis
1. Conditions of Confinement and Use of Chemical Agent
In its prior Opinion, the Court instructed that the status of a plaintiff as either a convicted
prisoner or pretrial detainee dictated whether his conditions of confinement were analyzed under
the Eighth or Fourteenth Amendment. (See Opinion 14 n.7 (citing Caiozzo v. Koreman, 581
F.3d 63, 69 (2d Cir. 2009).) The Court encouraged Plaintiffs to include in their Amended
Complaint “whether they were convicted prisoners or pretrial detainees at the time of the
relevant incidents,” (id.), but noted that “[c]laims for deliberate indifference to a . . . serious
threat to the health or safety of a person in custody should be analyzed under the same standard
irrespective of whether they are brought under the Eighth or Fourteenth Amendment,” (id. (citing

11

Caiozzo, 581 F.3d at 72)). In their SACs, both Romero and Little assert that they were pretrial
detainees at the time the alleged violations occurred, thus their claims are covered by the Eighth
Amendment. (See Romero SAC 8; Little SAC ¶ 1.)
Under the Eighth Amendment standard, a plaintiff is required to prove “(1) a deprivation
that is objectively, sufficiently serious that he was denied the minimal civilized measure of life’s
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) (internal quotation marks omitted) (citing Farmer v. Brennan, 511 U.S. 825,
834 (1994)). Thus, under the Eighth Amendment a plaintiff has to satisfy both an objective
prong and subjective prong.
In the more than two years since the Court issued its prior Opinion, the relevant
jurisprudence changed dramatically. First, in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015),
the Supreme Court held that for excessive force claims brought pursuant to the Due Process
Clause of the Fourteenth Amendment, “a pretrial detainee must show only that the force
purposefully or knowingly used against him was objectively unreasonable.” Id. at 2473; see also
id. at 2472 (“[I]f the use of force is deliberate—i.e., purposeful or knowing—the pretrial
detainee’s claim may proceed.” (italics omitted)). Thus, the Supreme Court concluded that
plaintiffs bringing excessive force claims under the Fourteenth Amendment do not need to
satisfy the subjective intent component of claims brought under the Eighth Amendment.
Two months later, the Second Circuit decided Willey v. Kirkpatrick, 801 F.3d 51 (2d Cir.
2015), addressing plaintiff-appellant Willey’s Eighth Amendment conditions-of-confinement
claims. Willey alleged three periods of confinement in unsanitary conditions: one in which
“officers placed him in solitary confinement with a Plexiglas shield restricting the airflow to his

12

small cell and then incapacitated his toilet, so that he was reduced to breathing a miasma of his
own accumulating waste,” and two occurrences in which he was “detain[ed] in an observation
cell whose walls and mattress were smeared with feces and stained with urine.” Id. at 55.
Willey also alleged that he was served a week’s worth of nutritionally inadequate meals. Id.
The district court found that Willey’s claims could not survive summary judgment because
among other reasons, he was “vague as to the dates that the alleged [toilet] shut-off occurred, and
ha[d] made conflicting allegations about the duration” and “Willey ha[d] not claimed that he
suffered sickness or other ill effects as a result of the malodorous atmosphere caused by the
[toilet] shut-off.” Willey v. Kirkpatrick, No. 07-CV-6484, 2013 WL 434188, at *9 (W.D.N.Y.
Feb. 4, 2013), vacated and remanded by 801 F.3d 51 (2d Cir. 2015). Vacating the decision of
the district court, the Second Circuit held that the proper inquiry for a conditions-of-confinement
claim does not involve “any bright-line durational requirement” or “some minimal level of
grotesquerie.” Willey, 801 F.3d at 68. Rather, the “analysis must consider both the duration and
the severity of an inmate’s experience of being exposed to unsanitary conditions.” Id.; see also
id. (“The severity of an exposure may be less quantifiable than its duration, but its qualitative
offense to a prisoner’s dignity should be given due consideration.”). 11 The Second Circuit
further held that “serious injury is unequivocally not a necessary element of an Eighth
Amendment claim.” Id.
Finally, and most germane to the instant Action, earlier this year, the Second Circuit
decided Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017), a case brought by 20 individual

11

In regard to his nutritionally inadequate food claim, the Second Circuit found that
“Willey’s claim [was] not that all restricted diets are unconstitutional, but that the particular food
he received was” and therefore he had adequately alleged “that his restricted diet was unusually
unhealthy.” Willey, 801 F.3d at 69.
13

plaintiffs, each of whom was detained in a temporary holding facility for between 10 and 24
hours. Id. at 23. The plaintiffs alleged that they were subjected to degrading conditions of
confinement, including overcrowding, unusable toilets, inadequate sanitation, infestation, and
inadequate nutrition, among other complaints. Id. The district court, in granting summary
judgment to the defendants, held that “occasional and temporary deprivations of sanitary and
temperate conditions, without more, do not constitute a sufficiently serious deprivation under the
Eighth Amendment to constitute punishment,” and that “the evidence fail[ed] to establish [that]
any [p]laintiff was regularly denied his or her basic human needs or was exposed to conditions
that posed an unreasonable risk of serious damage to his or her future health.” Cano v. City of
New York, 119 F. Supp. 3d 65, 74 (E.D.N.Y. 2015), aff’d in part and vacated in part by Darnell,
849 F.3d 17. The district court determined that the fact that no plaintiff had been exposed to the
complained of conditions for more than 24 hours and the lack of any actual serious injury
warranted the conclusion that no plaintiff had suffered an objective constitutional violation. See
id. at 73 (“[The] [p]laintiffs only complain of such issues for a short period of time—an average
of [10] to [24] hours—with nothing more.”); id. at 75 (“[T]he uncontroverted evidence
establishes that no [p]laintiff was regularly deprived access to a toilet.”); id. at 77 (“Here, not a
single [p]laintiff was exposed to urine, feces, and/or vomit for anything more than a limited
period of time . . . .”); id. at 82 (“Most [p]laintiffs did not seek any sort of medical treatment and
none of the [p]laintiffs provide evidence of having suffered any long term physical or emotional
harm . . . .”). As to the subjective prong, the district court held that no reasonable jury could
conclude that the defendants knew about conditions that posed an excessive risk to the plaintiffs’
health and safety, and that the defendants, at most, were merely negligent. Id. at 84.

14

On appeal, the Second Circuit vacated the judgment of the district court, finding that the
district court had “essentially ruled that no set of conditions, no matter how egregious, could
state a due process violation if the conditions existed for no more than [10] to [24] hours” and
that such ruling “was error.” Darnell, 849 F.3d at 37. Instead, the court held “conditions of
confinement cases must be evaluated on a case-by-case basis according to severity and duration.”
Id.
As to the subjective deliberate indifference prong—which the Second Circuit suggested
might be “better classified as a ‘mens rea prong’ or ‘mental element prong,’” id. at 29 (italics
omitted), the court held that “after Kingsley, it is plain that punishment has no place in defining
the mens rea element of a pretrial detainee’s claim under the Due Process Clause,” id. at 35
(italics omitted). “[T]he Due Process Clause can be violated when an official does not have
subjective awareness that the official’s acts (or omissions) have subjected the pretrial detainee to
a substantial risk of harm.” Id. The Second Circuit thus overruled Caiozzo “to the extent that it
determined that the standard for deliberate indifference is the same under the Fourteenth
Amendment as it is under the Eighth Amendment.” Id. Thus, to establish a claim for deliberate
indifference to conditions of confinement under the Due Process Clause of the Fourteenth
Amendment, a pretrial detainee must show “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.” Id. “In other
words, the ‘subjective prong’ (or ‘mens rea prong’) of a deliberate indifference claim is defined
objectively.” Id. (italics omitted).

15

The Court recognizes that this recent body of case law has significantly altered the
judicial landscape since the Parties submitted their briefing on the instant Motion. Therefore, in
light of the Second Circuit’s decision in Darnell, Defendants’ Motion To Dismiss Plaintiffs’
conditions-of-confinement claims is denied without prejudice. Should Defendants wish to file a
renewed Motion that addresses Plaintiffs’ allegations of excessive confinement, unsanitary
housing conditions, denial of food, exposure to extreme temperatures, and denial of laundry
services, they may file a pre-motion letter with the Court detailing the merits of any such motion.
Additionally, as the Supreme Court’s decision in Kingsley revised the applicable standard
for excessive force claims, Defendants’ Motion is dismissed without prejudice as to the claims
for the use of chemical agent “O.C.,” (Little SAC ¶¶ 37–39), as well as Little’s allegations that
he was “pushed in the back by [Defendant] Spears and landed on his hands and knees into the
water filled with bodily waste,” (id. ¶ 17). Defendants may address these claims in any renewed
motion to dismiss.
To the extent that Defendants’ Motion has not been affected by the decisions detailed
above, the Court now turns to whether Plaintiffs have sufficiently plead constitutional violations
in connection with their denial of access to the courts, Romero’s claim that he was strip searched,
and Little’s claims regarding his prisoner classification and denial of work assignment.
2. Denial of Access to the Courts and Law Library Access
Both Romero and Little assert various claims regarding denial of their access to the
courts, restriction of law library services, and Defendants’ failure to maintain an adequate law
library. (Romero SAC 4–5; Little SAC ¶¶ 31–36, 48.) It is axiomatic that prisoners “have a
constitutional right of access to the courts,” Bourdon v. Loughren, 386 F.3d 88, 92 (2d Cir. 2004)
(internal quotation marks omitted), and that pro se inmates have a right to assistance in the form

16

of “adequate law libraries or adequate assistance from persons trained in the law,” Bounds v.
Smith, 430 U.S. 817, 828 (1977). However, impairment of an inmate’s “litigating capacity is
simply one of the incidental (and perfectly constitutional) consequences of conviction and
incarceration.” Pollack v. Holanchock, No. 10-CV-2402, 2012 WL 1646893, at *2 (S.D.N.Y.
May 10, 2012) (internal quotation marks omitted).
“To establish a constitutional violation based on denial of access to the courts, a plaintiff
must show that the defendant’s conduct was deliberate and malicious, and that the defendant’s
actions resulted in an actual injury to the plaintiff.” Bellezza v. Holland, 730 F. Supp. 2d 311,
314 (S.D.N.Y. 2010) (emphasis added) (internal quotation marks omitted); see also Davis v.
Goord, 320 F.3d 346, 351 (2d Cir. 2003) (“[A] plaintiff must allege that the defendant took or
was responsible for actions that hindered a plaintiff’s efforts to pursue a legal claim.” (alteration
and internal quotation marks omitted)); Monsky v. Moraghan, 127 F.3d 243, 247 (2d Cir. 1997)
(“In order to establish a violation of a right of access to courts, a plaintiff must demonstrate that a
defendant caused actual injury, i.e., took or was responsible for actions that hindered a plaintiff’s
efforts to pursue a legal claim.” (alteration, italics, citation, and internal quotation marks
omitted)). For example, a plaintiff could show that he “has been unable to file a complaint or has
had a complaint dismissed for failure to observe a technicality” as a result of the actions of the
defendant. Benjamin v. Fraser, 264 F.3d 175, 184 (2d Cir. 2001).
Romero alleges that due to scheduling conflicts, he “had to decide . . . [whether law
library access] was the most important [call-out] that day,” and therefore “wasn’t able to research
[his] case properly.” (Romero SAC 4–5.) Romero does not appear to allege any actual
restriction of his access to the law library, but rather that he was forced to make a decision to
spend his time in the law library or elsewhere. Such allegations do not rise to the level of

17

unconstitutional obstruction of access to the courts. However, even were Romero to have
sufficiently pleaded that he was denied access, his claim is deficient because it does not allege
any harm caused to him. Romero asserts that his inability to “research [his] case properly” “was
very frustrating,” (id. at 5), but does not plead an actual injury, Monsky, 127 F.3d at 247 (“In
order to establish a violation of a right of access to courts, a plaintiff must demonstrate that a
defendant caused actual injury, i.e., took or was responsible for actions that hindered a plaintiff’s
efforts to pursue a legal claim.” (alterations, italics, citations, and internal quotation marks
omitted)). Accordingly, Romero’s allegations regarding access to the law library are dismissed
for failure to state a claim.
Little alleges that Defendant Chapman denied him access to the law library on multiple
occasions at the request of Defendants Stokes and Vaughn. (Little SAC ¶¶ 31–36.) Little avers
that “[d]ue to this denial . . . [he] was unable to file any Article 78 petition” in relation to his
reclassification as SRG and damage to his property. (Id. ¶ 34.) Little further asserts that the
denial resulted in his inability “to do any research to respond to . . . [D]efendant[s’] motion to
dismiss, dated Nov[ember] 12, 2013,” (id.), and “affected [P]laintiff’s criminal proceedings,” (id.
¶ 35). Had it not been for Defendant Chapman’s refusal to allow him to use the law library,
Little asserts he “would not have been convicted or faced a trial,” (id.), and that “had [he] been
provide[d] the legal materials he needed to further prosecute his property claim, he would have
prosecuted his claim and succeed[ed],” (id. ¶ 48). While the Court cannot yet discern at this
stage of the litigation whether the outcomes of Little’s proceedings would have been different
had Defendants not restricted access to the law library or failed to provide legal materials, Little
has identified “an ‘actual injury’ in a specific legal action resulting from the alleged
deprivation.” Collins v. Goord, 438 F. Supp. 2d 399, 418 (S.D.N.Y. 2006). Little’s claimed

18

inability “to file any Article 78 petition” or “do any research to respond to . . . Defendant[s’]
motion to dismiss,” (Little SAC ¶ 34), are precisely the kind allegations that survive a motion to
dismiss, compare Ifill v. Goord, No. 03-CV-355S, 2005 WL 2126403, at *8 (W.D.N.Y. Sept. 1,
2005) (dismissing an access-to-courts claim because the plaintiff did not allege the defendants
“prevented him from filing a claim or responding to a dispositive motion, or caused him to miss
a deadline or otherwise fail to comply with an order from any court”); Odom v. Poirier, No. 99CV-4933, 2004 WL 2884409, at *9 (S.D.N.Y. Dec. 10, 2004) (dismissing an access-tocourts claim because “[the] plaintiff’s conclusory allegations that the defendants caused him
irreparable harm in his ability to litigate . . . state and federal claims . . . or that the loss of [his]
legal materials caused him irreparable harm to exercise his rights of access to the courts are
simply insufficient to state a claim” (internal quotation marks omitted)); Gill v. Pact Org., No.
95-CV-4510, 1997 WL 539948, at *5 (S.D.N.Y. Aug. 28, 1997) (dismissing access-tocourts claim based on failure to provide photocopying and law books where the plaintiff
“offer[ed] no specific references to injury” and did not “explain any manner in which he or any
of his claims were prejudiced”) with Amaker v. Goord, No. 98-CV-3634, 2000 WL 718438, at *3
(S.D.N.Y. June 5, 2000) (finding the plaintiff’s allegation “that he was prevented from filing a
timely appeal in an Article 78 proceeding because the defendants kept him from passing legal
papers to his family for purposes of submission to the court” was sufficient to survive a motion
to dismiss). At this stage of the litigation, Plaintiff need allege “only enough facts to state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. However, as explained
below, because Little has failed to exhaust his administrative remedies with respect to this claim,
Defendants’ Motion To Dismiss this claim is granted.

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3. Searches
With respect to Romero’s allegations that he was strip searched, (see Romero SAC 3),
Romero fails to state a claim. “[A]n inmate challenging a strip search must ultimately meet the
burden of establishing that the search at issue was unreasonable and for such a claim to survive a
motion to dismiss, the plaintiff must plead facts sufficient to give rise to a plausible inference
that the search was not reasonably related to legitimate penological interests.” Simmons v.
Cripps, No. 12-CV-1061, 2013 WL 1290268, at *21 (S.D.N.Y. Feb. 15, 2013) (report &
recommendation) (citation omitted). Plaintiff Romero has failed to plead any facts beyond the
single conclusory statement that such a search occurred. Thus the court cannot determine
whether the search (or searches) was “an exaggerated response to legitimate penological
concerns regarding security and discipline.” Esquilin v. Schriro, No. 13-CV-3724, 2014 WL
2795408, at *4 (S.D.N.Y. June 19, 2014) (internal quotation marks omitted). Moreover, Romero
fails to name the individual or individuals who conducted the alleged search or when the search
occurred. (See Romero SAC 3 (“We were strip searched and all of our property [was] taken
from us.”). Accordingly, Romero’s claims are dismissed.
4. Classification of Prisoners and Denial of Work Assignment
Little’s claims as to his classification as SRG and dismissal from his position as an
inmate hairstylist are deficient for the reasons set forth in the Court’s prior Opinion. (See
Opinion 24–28.) The Court declines to revisit these unaltered allegations, because as previously
noted, Little “does not allege conditions so extreme as to amount to punishment.” (Id. at 27
(noting that Little’s classification and termination from his prison job do not amount to a

20

constitutional violation and collecting cases).) As Little has failed to plead additional facts to
bolster his allegations of unconstitutional conduct, his claims are dismissed. 12
5. Failure to Exhaust Administrative Remedies
Defendants also move to dismiss Romero’s SAC on the grounds that Romeo failed to
exhaust his administrative remedies pursuant to the Prison Litigation Reform Act (“PLRA”).
(Mem. of Law in Supp. of City Defs.’ Mot. To Dismiss Pl. Romero’s SAC, in its Entirety, and to
Partially Dismiss Pl. Little’s SAC (“Defs.’ Mem.”) 20–26 (Dkt. No. 118).) Defendants argue
that Little failed to exhaust his administrative remedies in respect to his claim that he was denied
access to the courts. (Id. at 24–25.) The PLRA provides that “[n]o action shall be brought with
respect to prison conditions under [§] 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies as
are available are exhausted.” 42 U.S.C. § 1997e(a). The exhaustion requirement applies to all
personal incidents while in prison, Porter v. Nussle, 534 U.S. 516, 532 (2002) (holding
exhaustion is required for “all inmate suits about prison life, whether they involve general
circumstances or particular episodes”); see also Johnson v. Killian, 680 F.3d 234, 238 (2d Cir.
2012) (same), and includes actions for monetary damages despite the fact that monetary damages
are not available as an administrative remedy, Booth v. Churner, 532 U.S. 731, 741 (2001)
(holding exhaustion is required “regardless of the relief offered through administrative
procedures”). Moreover, the PLRA mandates “‘proper exhaustion’—that is, ‘using all steps that
the agency holds out, and doing so properly,’ . . . [which] entails . . . ‘completing the

12

The same is true for Little’s unamended allegations that his being “force[d] to wear a
lime green prison jumpsuit on the visiting floor of GRVC . . . caused [him] discomfort and
embarrassment.” (Little SAC ¶ 60.) The Court previously found that such allegations do not
rise to a level as to constitute cruel and unusual punishment. (See Opinion 28.)
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administrative review process in accordance with the applicable procedural rules.’” Amador v.
Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (alteration omitted) (quoting Woodford v. Ngo, 548
U.S. 81, 88, 90 (2006)); see also Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question
that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in
court.”).
Prisoners in the custody of DOC must exhaust all levels of the Inmate Grievance Program
(“IGP”) process even if they do not receive a response from the Inmate Grievance Resolution
Committee (“IGRC”) or superintendent. See Dabney v. Pegano, 604 F. App’x 1, 4–5 (2d Cir.
2015) (“The IGP provides a clear timeline for appealing grievances to the [Central Office
Review Committee (‘CORC’)], which applies even when the prisoner does not receive a timely
decision from the IGRC or a superintendent. [The] [p]laintiff therefore had an unimpeded path
to the CORC, notwithstanding his claims that the . . . grievance clerk failed to process his
complaint and that the . . . superintendent ignored his appeal.” (citation omitted)). Thus, if a
plaintiff does not receive a response from the IGRC, he normally must file an appeal with the
prison superintendent and then with the CORC to fully exhaust his grievance. Indeed, the IGP
explicitly states that “matters not decided within the time limits may be appealed to the next
step.” 7 N.Y.C.R.R. § 701.6(g)(2); see also id. § 701.8(g) (same for expedited harassment
grievances).
The PLRA does, however, “contain[] its own, textual exception to mandatory
exhaustion.” Ross v. Blake, 136 S. Ct. 1850, 1858 (2016). The Supreme Court recently
explained:
Under § 1997e(a), the exhaustion requirement hinges on the “availab[ility]” of
administrative remedies: An inmate, that is, must exhaust available remedies, but
need not exhaust unavailable ones. And that limitation on an inmate’s duty to
exhaust . . . has real content. . . . [A]n inmate is required to exhaust those, but only
22

those, grievance procedures that are “capable of use” to obtain “some relief for the
action complained of.”
Id. at 1858–59 (quoting Booth, 532 U.S. at 738).
There are “three kinds of circumstances in which an administrative remedy, although
officially on the books, is not capable of use to obtain relief.” Id. at 1859. First, an
“administrative procedure is unavailable when . . . it operates as a simple dead end—with
officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Id.
Second, “an administrative scheme might be so opaque that it becomes, practically speaking,
incapable of use. In this situation, some mechanism exists to provide relief, but no ordinary
prisoner can discern or navigate it.” Id. Third, an administrative remedy may be unavailable
“when prison administrators thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.” Id. at 1860. These three
circumstances “do not appear to be exhaustive,” Williams v. Priatno, 829 F.3d 118, 123 n.2 (2d
Cir. 2016), but they do “guide the Court’s inquiry,” Khudan v. Lee, No. 12-CV-8147, 2016 WL
4735364, at *5 (S.D.N.Y. Sept. 8, 2016).
A plaintiff need not plead that one of these three circumstances exists or that he did in
fact exhaust his administrative remedies because the “[f]ailure to exhaust administrative
remedies is an affirmative defense under the PLRA, not a pleading requirement.” Williams, 829
F.3d at 122. Defendants bear the burden of proving that Romero and Little failed to exhaust
available administrative remedies. McCoy v. Goord, 255 F. Supp. 2d 233, 248 (S.D.N.Y. 2003)
(“[The] defendants bear the burden of proof and prisoner plaintiffs need not plead exhaustion
with particularity.”); see also Williams, 829 F.3d at 122 (“[I]nmates are not required to specially
plead or demonstrate exhaustion in their complaints.” (internal quotation marks omitted)). Thus,
a motion to dismiss pursuant to Rule 12(b)(6) for failure to exhaust should be granted only if
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“nonexhaustion is clear from the face of the complaint.” Lovick v. Schriro, No. 12-CV-7419,
2014 WL 3778184, at *4 (S.D.N.Y. July 25, 2014) (alterations and internal quotation marks
omitted); see also Lee v. O’Harer, No. 13-CV-1022, 2014 WL 7343997, at *3 (N.D.N.Y. Dec.
23, 2014) (“Dismissal under Rule 12(b)(6) for failure to exhaust is appropriate if such failure is
evidenced on the face of the complaint and incorporated documents.”); Sloane v. Mazzuca, No.
04-CV-8266, 2006 WL 3096031, at *4 (S.D.N.Y. Oct. 31, 2006) (“[B]y characterizing nonexhaustion as an affirmative defense, the Second Circuit suggests that the issue of exhaustion is
generally not amenable to resolution by way of a motion to dismiss.” (internal quotation marks
omitted)).
As noted in the Court’s September 2014 Opinion, Romero has “not pled that [he]
exhausted [his] administrative remedies” prior to filing his complaints in this Action. (Opinion
35.) Indeed, in his SAC, Romero admits that he “did not exhaust [his] administrative
remed[ies]” because of “fear of retaliation from [DOC] officers.” (Romero SAC 8.) However,
Romero’s allegations of generalized fear are insufficient to excuse his failure to exhaust. See
Brown v. Napoli, 687 F. Supp. 2d 295, 297 (W.D.N.Y. 2009) (finding the plaintiff failed to
allege any facts to support his claimed fear of retaliation where complaint stated that the plaintiff
did not file a grievance due to his “[f]ear for [his] personal safety and retaliation by correctional
staff”); Harrison v. Stallone, No. 06-CV-902, 2007 WL 2789473, at *5 (N.D.N.Y. Sept. 24,
2007) (“[A] general fear of retaliation is not sufficient to excuse the exhaustion requirement.”
(internal quotation marks omitted)); Hines v. Valhalla County Corr., No. 01-CV-6935, 2002 WL
1822740, at *3 (S.D.N.Y. Aug. 8, 2002) (“If an inmate’s allegation of a secondhand retaliatory
threat was enough to allow the inmate to begin litigation without properly filing grievances, the
PLRA’s exhaustion requirement could be easily circumvented by all inmates. A general fear of

24

retaliation is not an exception to the PLRA’s exhaustion requirement.” (footnote omitted)).
Therefore, as “nonexhaustion is clear from the face of the complaint,” Lovick, 2014 WL
3778184, at *4 (internal quotation marks omitted), Romero’s claims are dismissed for failure to
exhaust his administrative remedies.
Little asserts that he filed a grievance with respect to the “[d]enial of law library
services,” but that it “went unanswered.” (Little SAC 22.) When prompted in his SAC to
describe what steps he took to appeal that decision, Little states “the grievance unit at GRVC
refused to provide me any grievance [number,] so I could not appeal.” (Id.) As noted supra, “an
inmate’s failure to take an available administrative appeal, even when the initial grievance
receives no response, constitutes a failure to exhaust available administrative remedies.” See
Mena v. City of New York, No. 13-CV-2430, 2016 WL 3948100, at *4 (S.D.N.Y. July 19, 2016)
(internal quotation marks omitted). Nor is Little’s failure to exhaust excused by his contention
that the grievance unit denied him a grievance number. See Wallace v. Fisher, No. 13-CV-1208,
2015 WL 9275001, at *2 (N.D.N.Y. Dec. 18, 2015) (“After carefully reviewing the case law, the
[c]ourt finds that the weight of authority (and the better-reasoned authority) answers th[e]
question [of whether the IGRC’s nonresponse to a grievance must be appealed to the
superintendent where the plaintiff’s grievance was never assigned a grievance number] in the
affirmative.”); Collins v. Cunningham, No. 06-CV-420, 2009 WL 2163214, at *3, *6 (W.D.N.Y.
July 20, 2009) (rejecting the plaintiff’s argument that administrative remedies were unavailable
where his grievance was not assigned a grievance number); Midalgo v. Bass, No. 03-CV-1128,
2006 WL 2795332, at *7 (N.D.N.Y. Sept. 26, 2006) (noting that the plaintiff was “requir[ed]” to
seek an appeal to the superintendent, even though he never received a response to his grievance,
which was never assigned a grievance number); Hernandez v. Coffey, No. 99-CV-11615, 2003

25

WL 22241431, at *4 (S.D.N.Y. Sept. 29, 2003) (rejecting the plaintiff’s argument that he was
unable to exhaust because he never received a grievance number, finding he could nonetheless
have appealed any such nonresponse to the next level). Accordingly, as Little has failed to
exhaust available administrative remedies, his access-to-courts claim is dismissed. 13
C. Dismissal With Prejudice
A complaint should be dismissed without prejudice if the pleading, “‘liberally read,’
suggests that the plaintiff has a claim that []he has inadequately or inartfully pleaded and that
[]he should therefore be given a chance to reframe.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000) (alterations and citation omitted) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d
794, 795 (2d Cir. 1999)). If a complaint, however, has substantive problems and “[a] better
pleading will not cure [them],” “[s]uch a futile request to replead should be denied.” Id. (citing
Hunt v. All. N. Am. Gov’t Income Tr., 159 F.3d 723, 728 (2d Cir. 1998)). Courts are especially
wary of giving plaintiffs multiple “bites at the apple” where a plaintiff has already been granted
leave to amend. See Anthony v. Brockway, No. 15-CV-451, 2015 WL 5773402, at *3 (N.D.N.Y.
Sept. 30, 2015) (“[The] [p]laintiff has already been given one opportunity to amend his
complaint . . . , and there is nothing in his second amended complaint suggesting that [he] could
do better given another opportunity.”); Al-Qadaffi v. Servs. for the Underserved (SUS), No. 13CV-8193, 2015 WL 585801, at *8 (S.D.N.Y. Jan. 30, 2015) (denying leave to amend where

13

Defendants argue that “Little’s claim for injunctive or declaratory relief is moot
because he is no longer in DOC custody.” (Defs.’ Mem. 32.) The Court agrees that Little’s
transfer to Elmira Correctional Facility, a facility operated by New York State, moots his claims
for injunctive or declaratory relief against officials of Rikers Island. See Salahuddin v. Goord,
467 F.3d 263, 272 (2d Cir. 2006) (“[A]n inmate’s transfer from a prison facility generally moots
claims for declaratory and injunctive relief against officials of that facility.”). Therefore, Little’s
claims for injunctive and declaratory relief that Defendants have not sought to dismiss in the
instant Motion are dismissed with prejudice.
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“[the plaintiff] has already had one chance to amend his [c]omplaint, and there is still no
indication that a valid claim might be stated if given a second chance”), aff’d, 632 F. App’x 31
(2d Cir. 2016); Bui v. Indus. Enters. of Am., Inc., 594 F. Supp. 2d 364, 373 (S.D.N.Y. 2009)
(dismissing an amended complaint with prejudice where the plaintiff failed to cure the
deficiencies identified in his initial complaint despite “being given ample opportunity to do so”).
Here, Romero and Little have already amended their pleadings twice, once in response to
substantive and specific instruction from the Court. (See generally Opinion.) There is no reason
to suspect that, given another opportunity to amend, Plaintiffs will be able to cure the substantive
deficiencies in their respective SACs. Therefore, those of Plaintiffs’ claims that are dismissed
herein are dismissed with prejudice.
III. Conclusion
In light of the foregoing, Defendants’ Motion To Dismiss is granted with respect to all of
Romero’s claims on exhaustion grounds and is granted as to Little’s claims that he was
unconstitutionally classified, denied a work assignment, and denied access to the courts. The
Motion is denied without prejudice as to Little’s claims for excessive confinement, unsanitary
housing conditions, denial of food, exposure to extreme temperatures, and denial of laundry
services, as well as his claims of excessive force for the use of chemical agent by Defendant
Yousuf and the alleged use of force by Defendant Spears.
Should Defendants wish to file a renewed motion to dismiss on Little’s conditions-ofconfinement and excessive force claims, Defendants are to submit a pre-motion letter to the
Court within 14 days of the date of this Opinion & Order. Little is to respond within 14 days
thereafter. The Court will then issue a scheduling order as to any viable motion.

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Pursuant to the Court's order, (Dkt. No. 162), the stay of discovery is lifted.
The Clerk of Court is respectfully requested to terminate the pending Motions . (Dkt.
Nos. 103, 116.)
SO ORDERED .
DATED:

March ~. 2017
White Plains, New York
K

UNI

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