Perkins v. Perez et al
Filing
40
OPINION AND ORDER: For the reasons stated above, Defendants Motion To Dismiss is granted in part and denied in part. The Court dismisses Plaintiffs state-law claims with prejudice. The Court dismisses Plaintiffs claims against Defendants Perez, Benh eim, Nameth, Travis, and Whelan, as well as Plaintiffs claims against all Defendants in their official capacities, without prejudice. If Plaintiff wishes to file a second amended complaint, Plaintiff must do so within 30 days of the date of this O pinion. Plaintiff should include within that second amended complaint any changes to correct the deficiencies identified in this Opinion that Plaintiff wishes the Court to consider. Plaintiff is advised that the second amended complaint will replac e, not supplement, all prior complaints. The second amended complaint must contain all of the claims, factual allegations, and exhibits that Plaintiff wishes the Court to consider. If Plaintiff fails to abide by the 30-day deadline, his claims may be dismissed with prejudice. The Clerk is respectfully directed to terminate the pending Motion, (Dkt. No. 32), and to mail a copy of this Order to Plaintiff. SO ORDERED. (Signed by Judge Kenneth M. Karas on 3/18/2019) (jca) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SHAKEE PERKINS,
Plaintiff,
v.
No. 17-CV-1341 (KMK)
OPINION & ORDER
ADA PEREZ, et al.,
Defendants.
Appearances:
Shakee Perkins
Coxsackie, NY
Pro se Plaintiff
Janice Powers, Esq.
New York State Office of the Attorney General
White Plains, NY
Counsel for Defendants
KENNETH M. KARAS, United States District Judge:
Shakee Perkins (“Plaintiff”), currently incarcerated at Greene Correctional Facility,
brings this pro se Action under 42 U.S.C. § 1983 against Superintendent Ada Perez (“Perez”),
Medical Director John Benheim (“Dr. Benheim”), Correction Officer (“C.O.”) Richard Ulysse
(“Ulysse”), C.O. Damon Travis (“Travis”), C.O. Ryan Whelan (“Whelan”), and Sergeant Fred
Nameth (“Nameth”) (collectively, “Defendants”). Plaintiff, who sues Defendants both
individually and in their official capacities, alleges that Defendants violated his constitutional
rights and committed state-law torts against him. Before the Court is Defendants’ Motion To
Dismiss (the “Motion”). (See Not. of Mot. (Dkt. No. 32).)
For the following reasons, the Motion is granted in part and denied in part.
I. Background
A. Factual Background
The following facts are drawn from Plaintiff’s Amended Complaint and the exhibits
attached to it, (Am. Compl. (Dkt. No. 15)), and are taken as true for the purpose of resolving the
instant Motion.
On February 21, 2014, Plaintiff was incarcerated at Downstate Correctional Facility
(“Downstate”). (Am. Compl. ¶ 1.) 1 At about 9:15 a.m. that day, Plaintiff was in his cell when
Defendant Ulysse and an unnamed porter came to collect Plaintiff’s laundry. (Id. ¶¶ 1–2.) The
porter “handed [P]laintiff a pen to write his initials on his clothing,” which Plaintiff did. (Id.
¶¶ 2–3.) However, when Plaintiff “attempted to return the pen,” Ulysse “grabbed and strongarmed [P]laintiff’s right hand in a[n] aggressive stronghold[,] causing [P]laintiff’s wrist to swell
and become numb.” (Id. ¶ 3.) Ulysse further “squeez[ed]” Plaintiff’s “right hand and
aggressively pull[ed] [his] arm out of the hole in the door until [his] elbow reached the outer
edge of the hole.” (Id. ¶ 4.) Although Plaintiff “hopelessly begged” Ulysse to stop and
“screamed for help,” Ulysse did not stop and instead “braced his foot/feet up against the cell
door using both hands to get a better grip on” Plaintiff’s hand, causing further pain. (Id. ¶¶ 4–5.)
Ulysse thereafter “became more violent and aggressive,” “intentionally pull[ed]” Plaintiff’s
“entire right arm out of the hole on the cell door until [his] body was pressed up against the cell
door,” and “aggressively twisted and yanked [his] right arm in a downward violent motion[,]
causing more damage and severe pain,” as well as numbness. (Id. ¶¶ 6–8, 40.) Plaintiff
“struggled with” Ulysse for “approximately four more minutes before surrendering his arm.”
1
Plaintiff’s filings in this case contain both numbered and unnumbered paragraphs.
Where not possible to cite to the numbered paragraph, the Court cites to the ECF-generated page
numbers stamped at the top right-hand corner of the document.
2
(Id. ¶ 8.) Ulysse thereafter released Plaintiff’s arm and “walked way laughing.” (Id. ¶ 9.)
Plaintiff “screamed for help in pain” and “requested emergency medical attention” for
twenty minutes. (Id. ¶¶ 9, 41.) Plaintiff was then escorted to Nameth’s office. (Id. ¶ 9.)
Nameth questioned Plaintiff (and two nearby inmates) about the incident. (Id. ¶ 10.) Plaintiff
requested that “the investigation be postponed so that [he] can receive medical attention,” but
Nameth “denied [the] request and stated: ‘You have to answer these questions first.’” (Id.)
Plaintiff alleges the questioning caused a delay in his “emergency medical needs” and caused his
“right hand and mid-area of the arm to swell.” (Id. ¶¶ 10–11, 41–42.)
After “[a]fter a period of twenty minutes or so,” Plaintiff was taken to the medical unit.
(Id. ¶ 12.) X-rays and photographs were taken of the injury. (Id.) Defendant Dr. Benheim, in
examining Plaintiff, “grabbed” his “left arm and attempted to put [his] right arm in a medical
sling,” despite Plaintiff’s complaints. (Id. ¶¶ 13, 42.) Dr. Benheim “forced” Plaintiff to lie down
“by picking [him] up by the legs” and pushing his “upper body down on the bed.” (Id. ¶ 14.) He
then attached an IV with an “unknown narcotic” to Plaintiff’s arm without asking Plaintiff’s
permission or whether he was allergic to it. (Id. ¶¶ 15–16.) Plaintiff “begged” Dr. Benheim not
to touch him and asked for another doctor, but that request was refused. (Id. ¶ 15.) Plaintiff
“immediately” began to “sweat, feel cold, have trouble breathing, feel dizzy, [feel] panic-struck,
[feel] naus[eous] and hallucinate,” have “short epileptic episodes,” and feel “half his body
numbed, frozen and the other half in great pain.” (Id. ¶¶ 17, 19.) Dr. Benheim injected Plaintiff
with “another dose of an unknown narcotic,” causing Plaintiff pain from the needle — which
was inserted “carelessly” into his injured arm — and causing Plaintiff to become “incoherent”
and “unresponsive” and to have “blurry vision.” (Id. ¶¶ 18, 40.)
Plaintiff was then referred to an outside hospital for further treatment. (Id. ¶ 24.)
3
Defendants Travis and Whelan, responsible for transporting Plaintiff to the van that would take
him to the hospital, “aggressively grabbed [his] arms, pulling both arms towards [his] back,” and
placed him in “mechanical restraints.” (Id. ¶¶ 19, 40–41.) This caused Plaintiff pain, who “tried
to speak but was unable to [do so] because of the narcotic effects” of the medicine given to him
by Dr. Benheim. (Id. ¶ 20.) Instead, Plaintiff cried and moaned to signal his distress. (Id.)
Travis and Whelan carried Plaintiff to the van instead of putting Plaintiff in a “medical mobile
bed or portable carry stretcher,” and, in placing him in the van, failed to fasten a seat belt around
him. (Id.) Before they left for the hospital, Whelan smoked a cigarette, causing Plaintiff “to
have trouble breathing.” (Id. ¶ 21.) Further, the van door was left open, causing Plaintiff, who
“did not have on a winter coat,” to “nearly experience[] hypothermia” and to begin “crying,
moaning, shivering, coughing, and breathing very fast.” (Id.) When the van door was closed,
Plaintiff was left “restrained in an uncomfortable[,] painful position with no air circulating[,]
leaving [him] to inhale” Whelan’s cigarette smoke for about fifteen minutes. (Id. ¶ 22.) Plaintiff
then “vomited twice and then blacked out” in the van, and “woke up on the van floor and was
unable to get up or move” because of the “ongoing effects of the unknown narcotic and being
restrained by” handcuffs. (Id. ¶ 23.) Plaintiff was “incoherent and unresponsive” upon arrival at
the hospital. (Id. ¶¶ 23–24.) Following the visit to the hospital, Plaintiff was transported by
Travis and Whelan back to Downstate “in the same negligent manner” as before. (Id. ¶ 24.)
Upon return to Downstate, Plaintiff was placed in involuntary protective custody (“IPC”)
without a bed, chair, food, or water, thus forcing him to sit “on the edge of a windowsill” and
sleep “in an uncomfortable position.” (Id. ¶ 25.) From February 22–24, 2014, Plaintiff
repeatedly asked Dr. Benheim for a medical shower, but was denied one without explanation,
causing him to develop a foot fungus. (Id. ¶¶ 26–27, 43.)
4
On February 24, 2014, Plaintiff was released back into Downstate’s general population
and given an ace bandage to “keep [his] right arm in a comfortable position.” (Id. ¶ 28.) Upon
return to his cell, he wrote a letter to Defendant Perez complaining about the assault and medical
treatment and requesting to be moved to another facility “because [he] feared that he would be
assaulted and retaliated against by all defendants mentioned in this complaint.” (Id. ¶ 29; see
also Am. Compl. Ex. C1 (letter to Perez).)
On February 26, 2014, Defendant Ulysse approached Plaintiff in the mess hall “during
lunch chow” and “verbally threatened” him to not “file a grievance or he would retaliate and
make sure other officers in any facility [P]laintiff is transferred to retaliate [against him] as well.”
(Am. Compl. ¶ 30.) Ulysse further forced Plaintiff to “remove his ace-bandage off his right arm
and hand it over.” (Id. ¶¶ 30–31.) Plaintiff “filed a grievance about the assault, retaliation,
negligence[,] and mess hall encounter with” Ulysse. (Id. ¶ 31; see also Am Compl. Ex. C2
(grievance regarding incident).) Plaintiff made several requests for medical care between
February 26 and March 3, 2014, but received no response. (Am Compl. ¶ 32.)
On March 4, 2014, Plaintiff was transferred to Great Meadow Correctional Facility
(“Great Meadow”). (Id. ¶ 33.) Upon arrival, he was told by another inmate that there was a note
stating that Plaintiff “was an asshole, litigant[,] and grieving threat[,] and [giving] an order to
destroy all of [his] property.” (Id. ¶ 34.) On March 6, 2014, Plaintiff was issued a misbehavior
report by a prison officer not named as a Defendant here, which Plaintiff alleges was false and an
act of retaliation on behalf of Ulysse. (Id. ¶¶ 35–36, 44; see also Am. Compl. Ex. D6
(misbehavior report).)
B. Procedural Background
Plaintiff signed his initial Complaint and handed it to prison officials for mailing on
5
January 18, 2017. (See Compl. 55 (Dkt. No. 2).) Plaintiff completed his request to proceed
without prepayment of fees, that is, in forma pauperis (“IFP”), on the same day. (See Dkt. No.
1.) The Court received Plaintiff’s initial complaint and IFP request on February 22, 2017. (See
Dkt. (dates associated with entries at Dkt. Nos. 1, 2).) On February 23, 2017, the Court granted
Plaintiff’s IFP request. (Dkt. No. 4.)
Plaintiff’s initial Complaint named Perez and several John Does as Defendants. (See
Compl. 1–2.) On March 2, 2017, the Court issued an Order directing service on Perez and
directing the New York State Attorney General’s Office to identify the John Doe Defendants.
(Dkt. No. 6.) Perez was thereafter served, and the identities of the John Doe Defendants
ascertained. (Dkt. Nos. 10–12.)
On June 23, 2017, Plaintiff filed the instant Amended Complaint. (Am. Compl.) The
Court issued a second Order directing service, (Dkt. No. 16), and the remaining Defendants were
thereafter served, (Dkt. Nos. 17, 18, 19, 20, 21). On January 25, 2018, Defendants filed a letter
seeking a pre-motion conference in anticipation of filing a motion to dismiss. (Dkt. No. 27.) On
February 5, 2018, the Court set a briefing schedule. (Dkt. No. 28.) Defendants filed the instant
Motion To Dismiss and accompanying papers on March 5, 2018. (See Not. of Mot.; Mem. of
Law in Supp. of Mot. (“Defs.’ Mem.”) (Dkt. No. 31).) On May 8, 2018, Plaintiff filed a
response in opposition. (See Pl.’s Mem. of Law in Opp’n to Mot. (“Pl.’s Mem.”) (Dkt. No. 35).)
On May 21, 2018, Defendants filed a reply. (See Defs.’ Reply Mem. of Law in Further Supp. of
Mot. (“Defs.’ Reply”) (Dkt. No. 36).)
II. Discussion
Defendants move to dismiss the Amended Complaint pursuant to Federal Rules of Civil
Procedure 8 and 12(b)(6). (See generally Defs.’ Mem.)
6
A. Rule 8
Federal Rule of Civil Procedure 8 provides, as relevant here, that “[a] pleading that states
a claim for relief must contain . . . a short and plain statement of the claim showing that the
pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), and that “[e]ach allegation must be simple,
concise, and direct,” id. at 8(d)(1). Nonetheless, Rule 8 also provides that “[n]o technical form is
required” to comply with the rules, id., and that “[p]leadings must be construed so as to do
justice,” id. at 8(e).
In Defendants’ view, the Amended Complaint runs afoul of Rule 8 because it is “long
and rambling and a total of 131 pages,” “contains broad sweeping and conclusory allegations,
many of which not directed to any particular party,” and “is accompanied with exhibits that are
unrelated to the allegations.” (Defs.’ Mem. 6–7 (relying in part on Salahuddin v. Cuomo, 861
F.2d 40, 42 (2d Cir. 1988)); see also Defs.’ Reply 1–2 (arguing that the Amended Complaint
“contains extraneous facts about non-parties,” contains repetitions, and references documents
and events that do not involve any Defendant).
While the Court is sympathetic to Defendants’ view of the Amended Complaint, Plaintiff
has not violated Rule 8. “The fundamental command of the Federal Rules of Civil Procedure is
never to exalt form over substance.” Amron v. Morgan Stanley Inv. Advisors Inc., 464 F.3d 338,
343 (2d Cir. 2006) (citation and quotation marks omitted). When enforcing technical
requirements on litigants, courts are always mindful of the “jurisprudential preference for
adjudication of cases on their merits rather than on the basis of formalities.” Salahuddin, 861
F.2d at 42; see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (“The liberal notice
pleading of Rule 8(a) is the starting point of a simplified pleading system, which was adopted to
focus litigation on the merits of a claim.”); cf. Wynder v. McMahon, 360 F.3d 73, 80 (2d Cir.
7
2004) (noting that “form matters in our system of adjudication,” but holding that the complaint
“[was] not so lacking in form as to warrant dismissal” (citation and quotation marks omitted)).
In this context, “dismissal of a pro se claim as insufficiently pleaded is appropriate only in the
most unsustainable of cases,” Boykin v. KeyCorp, 521 F.3d 202, 216 (2d Cir. 2008) (italics
omitted), and it “is usually reserved for those cases in which the complaint is so confused,
ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised,”
Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000) (quoting Salahuddin, 861 F.2d at 42).
Therefore, instead of mechanically determining whether a complaint’s allegations are
“short and plain” or “simple, concise, and direct,” Fed. R. Civ. P. 8(a)(2), (d)(1), the Court
considers more broadly whether the complaint gives “fair notice” to the defendants, Salahuddin,
861 F.2d at 42; see also Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995) (“The function of
pleadings under the Federal Rules is to give fair notice of the claim asserted.” (citation and
quotation marks omitted)); Amron, 464 F.3d at 343 (“A complaint need only ‘give the defendant
fair notice of what the plaintiff’s claim is and the grounds upon which it rests.’” (quoting
Swierkiewicz, 534 U.S. at 513)); Wynder, 360 F.3d at 79 (“The key to Rule 8(a)’s requirements is
whether adequate notice is given.” (citation omitted)). “Fair notice is that which will enable the
adverse party to answer and prepare for trial, allow the application of res judicata, and identify
the nature of the case so it may be assigned the proper form of trial.” Simmons, 49 F.3d at 86
(citation and quotation marks omitted). Thus, the Court will not dismiss a complaint that may be
prolix or even unintelligible unless the complaint’s form or substance prevents the defendant
from forming a “fair understanding” of the plaintiff’s allegations or otherwise prejudices the
defendant in responding to the complaint. Kittay, 230 F.3d at 542; see also Amron, 464 F.3d at
343 (“Dismissal is improper on technical pleading irregularities, which are excusable as long as
8
they neither undermine the purpose of notice pleading nor prejudice the adverse party.” (citation
and quotation marks omitted)); Phillips v. Girdich, 408 F.3d 124, 130 (2d Cir. 2005) (“Although
[the plaintiff’s] allegations were not neatly parsed and included a great deal of irrelevant detail,
that is not unusual from a pro se litigant. As long as his mistakes do not prejudice his opponent,
a plaintiff is entitled to trial on even a tenuous legal theory, supported by the thinnest of
evidence.” (citations omitted)).
Here, the Amended Complaint provides Defendants fair notice of the claims against them
and therefore satisfies the short-and-plain-statement requirement of Rule 8. The Amended
Complaint contains each of the usual sections, including a list of the Parties and their addresses,
(Am. Compl. 1–3); a description of each Defendant, (id. at 4–6); a statement on jurisdiction and
venue, (id. at 6); a chronological description of the alleged facts and a statement of claims, (id. at
7–24); a description of each count, (id. at 25–43); a description of Plaintiff’s injuries, (id. at 48);
and a statement as to the relief sought, (id. 49–52). Indeed, the Amended Complaint usefully
contains a statement on Plaintiff’s attempts at exhaustion, (id. at 44–46), and on Plaintiff’s
previous lawsuits, (id. at 47). Throughout, the Amended Complaint uses numbered pages and
paragraphs, and it contains neat, orderly, easy-to-read handwriting. Therefore, even if some
portions of the Amended Complaint “contain[] a number of arguably confusing or irrelevant
paragraphs,” and contain sections that are repetitive and certain exhibits whose relevance may
not be apparent, “the Court cannot say that the . . . Amended Complaint fails to put . . .
Defendants on fair notice of Plaintiff’s claims.” Ong v. Park Manor (Middletown Park) Rehab.
& Healthcare Ctr., 51 F. Supp. 3d 319, 346 (S.D.N.Y. 2014); see also Kittay, 230 F.3d at 542
(finding that a complaint satisfied Rule 8 where the “allegations [were] sufficiently clear to have
provided [the defendant] with a fair understanding of what the plaintiff [was] complaining about
9
and to have allowed [the defendant] to know whether there is a legal basis for recovery” (citation
and quotation marks omitted)).
B. Rule 12(b)(6)
1. 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)
(citations, quotation marks, and alterations 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. (quotation marks and alteration 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
complaint,” id. at 563, and a plaintiff need 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 or her] claim[] 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
context-specific 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.’” (citation omitted) (second alteration in original) (quoting Fed. R.
10
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.”).
In considering a motion to dismiss, the Court “must accept as true all of the factual
allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“In addressing the sufficiency
of a complaint we accept as true all factual allegations . . . .” (quotation marks omitted)).
Further, “[f]or the purpose of resolving [a] motion to dismiss, the Court . . . draw[s] 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)). Where, as here, a plaintiff proceeds pro se, the “complaint[] must be construed liberally
and interpreted to raise the strongest arguments that [it] suggest[s].” Sykes v. Bank of Am., 723
F.3d 399, 403 (2d Cir. 2013) (per curiam) (quotation marks omitted). However, “the liberal
treatment afforded to pro se litigants does not exempt a pro se party from compliance with
relevant rules of procedural and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559
(S.D.N.Y. 2013) (quotation marks omitted); see also Caidor v. Onondaga County, 517 F.3d 601,
605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves regarding
procedural rules and to comply with them.” (italics and quotation marks omitted)).
Generally, “[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) (quotation
marks and citation omitted). When a plaintiff proceeds pro se, however, the Court may consider
11
“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) (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), statements by the plaintiff “submitted in response to [a] defendant’s
request for a pre-motion conference,” Jones v. Fed. Bureau of Prisons, No. 11-CV-4733, 2013
WL 5300721, at *2 (E.D.N.Y. Sept. 19, 2013), and “documents that the plaintiff[] either
possessed or knew about and upon which [the plaintiff] relied in bringing the suit,” Rothman v.
Gregor, 220 F.3d 81, 88 (2d Cir. 2000).
2. Analysis
Defendants move to dismiss the Amended Complaint on grounds that the claims are
time-barred; that Plaintiff failed to exhaust administrative remedies; that Plaintiff fails to allege
the personal involvement of Defendant Perez; that Plaintiff fails to allege an Eighth Amendment
claim; that Plaintiff fails to allege a First Amendment retaliation claim; that the claims against
Defendants in their official capacities must be dismissed under the Eleventh Amendment; and
that Defendants are entitled to qualified immunity. (See Defs.’ Mem. 7–22.) The Court
addresses each argument separately to the extent necessary.
a. Statute of Limitations
i. Section 1983 Claims
Defendants argue that Plaintiff’s § 1983 claims relating to the events of February 21,
2014 are time-barred. (See Defs.’ Mem. 7.) “In [§] 1983 actions, the applicable limitations
period is found in the ‘general or residual state statute of limitations for personal injury actions.’”
Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997) (alterations omitted) (quoting Owens v.
12
Okure, 488 U.S. 235, 249–50 (1989)). Here, New York’s three-year statute of limitations for
personal injury actions applies. See N.Y. C.P.L.R. § 214(5); see also, e.g., Pearl v. City of Long
Beach, 296 F.3d 76, 79 (2d Cir. 2002) (holding that, because § 1983 does not contain a specific
statute of limitations, courts apply the statute of limitations for personal injury actions under state
law, which in New York is three years (citing N.Y. C.P.L.R. § 214(5))). Therefore, in
Defendants’ view, Plaintiff’s § 1983 claims relating to the events of February 21, 2014 are timebarred because he did not file his initial Complaint until February 22, 2017, one day following
the expiration of the statute of limitations. (See Defs.’ Mem. 8.)
This is incorrect as a matter of law. Under the prison mailbox rule, an inmate’s
complaint is deemed filed on the day it is handed to prison officials for mailing. See Allen v.
N.Y.C. Dep’t of Corr., No. 06-CV-7205, 2010 WL 1644943, at *7 (S.D.N.Y. Mar. 17, 2010)
(citing Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993)). Here, Plaintiff signed his initial
Complaint on January 18, 2017. (See Compl. 55.) “Although it is not clear when [Plaintiff]
gave his complaint to prison officials, absent evidence to the contrary, the Court assumes that
[Plaintiff] gave [it] to prison officials for mailing on the date he signed it.” Johnson v. Coombe,
156 F. Supp. 2d 273, 277 (S.D.N.Y. 2001) (citation, quotation marks, and original alterations
omitted). Therefore, Plaintiff’s initial Complaint was timely filed over a month prior to the
expiration of the statute of limitations.
ii. State Law Claims
Defendants also argue that Plaintiff’s state-law claims are time-barred. (See Defs.’ Mem.
9–10.) “The accrual of pendant state law tort claims . . . in federal court actions is governed by
state law.” Mitchell v. Home, 377 F. Supp. 2d 361, 377 (S.D.N.Y. 2005). In New York, the
statute of limitations for intentional torts is one year. See N.Y. C.P.L.R. § 215(3). Plaintiff’s
13
Amended Complaint alleges state-law intentional torts occurring between February 21, 2014 and
about March 6, 2014. (See generally Am. Compl.) Plaintiff’s initial Complaint was not mailed
until January 18, 2017. Therefore, Plaintiff’s state-law claims are time-barred and must be
dismissed with prejudice.
b. Exhaustion
Defendants argue that Plaintiff’s § 1983 claims are barred for failure to exhaust
administrative remedies. (See Defs.’ Mem. 7–9.)
The Prison Litigation Reform Act (“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). This “language is ‘mandatory’:
An inmate ‘shall’ bring ‘no action’ (or said more conversationally, may not bring any action)
absent exhaustion of available administrative remedies.” Ross v. Blake, 136 S. Ct. 1850, 1856
(2016) (citation omitted). The exhaustion requirement applies to “all inmate suits about prison
life,” Porter v. Nussle, 534 U.S. 516, 520, 532 (2002), and includes actions for monetary
damages even if monetary damages are not available as an administrative remedy, see Booth v.
Churner, 532 U.S. 731, 741 (2001). Moreover, the PLRA “requires proper exhaustion, which
means using all steps that the prison grievance system holds out.” Williams v. Priatno, 829 F.3d
118, 122 (2d Cir. 2016) (citations, quotation marks, and alteration omitted). Indeed, the PLRA
demands “strict compliance with the grievance procedure . . . , or else dismissal must follow
inexorably.” McCoy v. Goord, 255 F. Supp. 2d 233, 246 (S.D.N.Y. 2003) (citations, quotation
marks, and alteration omitted).
However, the PLRA contains a “textual exception to mandatory exhaustion.” Ross, 136
14
S. Ct. at 1858. “[T]he exhaustion requirement hinges on the ‘availab[ility]’ of administrative
remedies: An inmate . . . must exhaust available remedies, but need not exhaust unavailable
ones.” Id. Available “grievance procedures . . . are capable of use to obtain some relief for the
action complained of.” Id. at 1859 (citation and quotation marks omitted). In Ross, the Supreme
Court identified “three kinds of circumstances in which an administrative remedy, although
officially on the books, is not capable of use to obtain relief.” Id. An administrative remedy is
unavailable: (1) where “it operates as a simple dead end — with officers unable or consistently
unwilling to provide any relief to aggrieved inmates”; (2) where the procedure is “so opaque that
it becomes, practically speaking, incapable of use” such that “no ordinary prisoner can discern or
navigate it”; or (3) where “prison administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or intimidation.” Id. at 1859–60. It
bears noting, however, that the “three circumstances discussed in Ross do not appear to be
exhaustive,” Williams, 829 F.3d at 123 n.2, but rather “guide the Court’s inquiry,” Khudan v.
Lee, No. 12-CV-8147, 2016 WL 4735364, at *5 (S.D.N.Y. Sept. 8, 2016) (citation omitted).
Finally, failure to exhaust is an affirmative defense, not a pleading requirement. See
Jones v. Bock, 549 U.S. 199, 216 (2007); Grullon v. City of New Haven, 720 F.3d 133, 141 (2d
Cir. 2013). “Inmates are not required to specially plead or demonstrate exhaustion in their
complaints.” Jones, 549 U.S. at 216. Accordingly, “dismissal is appropriate on a motion to
dismiss where failure to exhaust is clear on the face of the complaint.” Brinson v. Kirby
Forensic Psych. Ctr., No. 16-CV-1625, 2018 WL 4680021, at *6 (S.D.N.Y. Sept. 28, 2018)
(citation omitted); see also McCoy, 255 F. Supp. 2d at 249 (same).
The grievance program applicable here is the New York State Department of Corrections
15
and Community Supervision (“DOCCS”) Inmate Grievance Program (“IGP”). 2 See 7
N.Y.C.R.R. § 701 et seq. The IGP provides for a three-step grievance process. The inmate must
first submit a written grievance to the Inmate Grievance Review Committee (“IGRC”). See
Gayot v. Perez, No. 16-CV-8871, 2018 WL 6725331, at *6 (S.D.N.Y. Dec. 21, 2018) (citing 7
N.Y.C.R.R. § 701.5(a)). “If the IGRC’s determination is adverse to the inmate, at the second
step the inmate may appeal to the superintendent within seven calendar days.” Id. (citing 7
N.Y.C.R.R. § 701.5(c)). “And if the superintendent’s determination is adverse to the inmate, at
the third and final step the inmate may appeal to the Central Office Review Committee
(“CORC”) within seven calendar days.” Id. (citing 7 N.Y.C.R.R. § 701.5(d)). Only after
completing all three steps of the IGP may suit be brought. See Williams, 829 F.3d at 122.
In the Amended Complaint, Plaintiff states that he “has continued to [pursue] all
complaints and exhaust all administrative remedies,” (Am. Compl. ¶ 38), that he “filed
grievances” at Downstate and Great Meadow with regard to his claims, (id. at 44–45), and that
he “appealed all complaints to the [relevant] Superintendent” and “appealed further to the
[CORC],” (id.). Plaintiff also acknowledges, however, that “some complaints, grievances[,] and
appeals were never addressed or acknowledged by [DOCCS],” that “some complaints did not
meet [DOCCS] deadlines because [they were] destroyed or missing from acts of retaliation,” and
that “[s]ome complaints were never filed due to the long history of harassment, threats, fear of
plaintiff’s life and retaliation from [DOCCS] and [its] employees.” (Id.) Plaintiff further alleges
that Defendant Ulysse “verbally threatened” him “not to file a grievance or he would retaliate.”
2
Plaintiff alleges that the “grievance procedure at [Downstate and Great Meadow] . . .
did not cover any of [his] claims.” (Am. Compl. 45). This is incorrect. As noted, the exhaustion
requirement applies to “all inmate suits about prison life.” Porter, 534 U.S. at 520, 532.
16
(Id. ¶ 30.) In short, Plaintiff clarifies, “most of the grievances” were “never processed,” some
were “destroyed,” others were processed but “denied,” and some were never filed at all for fear
of retaliation. (Id. at 45–46.)
As Defendants point out, (Defs.’ Mem. 8), Plaintiff essentially admits that he did not
exhaust as required by the PLRA. Plaintiff attaches no documents to the Amended Complaint
demonstrating that he filed grievances or appeals regarding the allegations of February and
March 2014 described in the Amended Complaint. To be sure, Plaintiff does attach copies of
several grievances and appeals filed between February 2015 and January 2016, but those refer
not to the allegations raised in the Amended Complaint but to separate issues that postdate the
events of, and indeed involve a different correctional facility than, alleged in the Amended
Complaint. (See Am. Compl. Exs. D16–D18, D24–D41.) 3 Plaintiff also attaches several letters,
written in February–April 2014, May 2016, and December 2016, to Defendant Perez, other
officials in the Downstate and Great Meadow grievance departments, and the DOCCS
commissioner, describing and complaining about many of the allegations raised in the Amended
Complaint. (See Am. Compl. Exs. C1–C2, D8–D11, D44–D46, D49.) However, these letters
are not themselves grievances. “Numerous courts considering that issue have found that
complaints that were not filed as formal grievances cannot satisfy the exhaustion requirement” of
the PLRA. Collins v. Goodliff, No. 12-CV-6595, 2014 WL 6065670, at *2 (W.D.N.Y. Nov. 13,
2014) (citation omitted); see also Scott v. Gardner, 287 F. Supp. 2d 477, 488–89 (S.D.N.Y.
2003) (“Letters of complaint, regardless of the addressee, are not part of the grievance process
and do not satisfy the exhaustion requirement.” (citation omitted)); Houze v. Segarra, 217 F.
3
Indeed, Plaintiff attaches letters from prison officials stating that no grievances are on
file as to the allegations raised in the Amended Complaint. (See Am. Compl. Exs. D11, D12,
D42, D47.)
17
Supp. 2d 394, 395–96 (S.D.N.Y. 2002) (holding that letters to the superintendent asking for an
investigation of an alleged assault did not constitute exhaustion); Beatty v. Goord, 210 F. Supp.
2d 250, 255–56 (S.D.N.Y. 2000) (holding that “writing letters” to prison medical director,
superintendent, and DOCCS commissioner did not constitute exhaustion).
The Amended Complaint and its attached exhibits thus demonstrate that Plaintiff did not
exhaust his administrative remedies as required by the PLRA. The question, then, is whether an
exception to the exhaustion requirement applies. Plaintiff makes no showing whatsoever that the
IGP is a “simple dead end” that is “unable” to provide relief to grievances. Ross, 136 S. Ct. at
1859. Nor can it be said that the IGP is “so opaque that it becomes, practically speaking,
incapable of use,” such that “no ordinary prisoner can discern or navigate it,” id., for the
Amended Complaint amply demonstrates that Plaintiff filed numerous formal grievances and
appeals (albeit about other issues) pursuant to the requirements of the IGP. Therefore, the only
possible applicable exception is whether Plaintiff was “thwart[ed]” from using the IGP through
prison officials’ “machination, misrepresentation, or intimidation,” that is, whether prison
officials “misled or threatened” Plaintiff to prevent his use of the IGP. Id. at 1860.
Here, Plaintiff alleges:
On February 26th[,] 2014, during lunch chow, [P]laintiff was approached by C.O.
Ulysse inside the mess[] hall. Mr. Ulysse verbally threatened the [P]laintiff[,]
telling [P]laintiff not to file a grievance or he would retaliate and make sure other
officers in any facility [P]laintiff is transferred to retaliate as well. Mr. Ulysse also
stated “[You’re] not going to win with me” and made [P]laintiff remove his acebandage off his right arm and hand it over. Plaintiff immediately removed the acebandage and handed it to C.O. Ulysse out of fear for his life, safety[,] and to prevent
further assaults and retaliation.
(Am. Compl. ¶¶ 30–31.) Plaintiff further explains that, as a result, “some complaints” were
“destroyed or missing from acts of retaliation,” (id. ¶ 38); that “[s]ome complaints were never
filed due to the long history of harassment, threats, fear of plaintiff’s life and retaliation from
18
[DOCCS] and [its] employees,” (id.); and that “most of the grievances” were “never processed,”
some were “destroyed,” others were processed but “denied,” and some were never filed for fear
of retaliation, (id. at 45–46).
This allegation, taken as true for purposes of this Motion, is, if barely, sufficiently
“specific and clear” because the alleged threat “relates directly to Plaintiff’s prospective
grievance against” Ulysse. White v. Westchester County, No. 18-CV-730, 2018 WL 6726555, at
*7 (S.D.N.Y. Dec. 21, 2018). Plaintiff explains “with particularity” when and where Ulysse
threatened him. Id. Plaintiff further indicates that Ulysse’s threat was directly related to the
February 2014 incident and to the possibility that a grievance would be filed against him.
Plaintiff also connects Ulysse’s threat to another act of intimidation and retaliation, namely, the
taking of Plaintiff’s bandage. Moreover, context suggests that Plaintiff was in fact intimidated
by Ulysse’s threat. Two days prior to Ulysse’s threat, Plaintiff wrote a letter to Perez
complaining about Ulysse’s assault. (See Am. Compl. Ex. C1.) And following Ulysse’s threat,
Plaintiff filed numerous formal grievances relating to other issues. (See Am. Compl. Exs. D16–
D18, D24–D41.) Yet, despite taking these actions, Plaintiff did not file a formal grievance
against Ulysse relating to the assault. The Amended Complaint thus indicates that Ulysse
threatened Plaintiff not to file a grievance against him and that the threat had its intended effect.
Therefore, Plaintiff alleges sufficient facts that satisfy, at least at the motion-to-dismiss stage, the
third Ross exception. Cf. Jackson v. Downstate Corr. Facility, No. 16-CV-267, 2018 WL
3650136, at *6 (S.D.N.Y. July 31, 2018) (holding no exception to exhaustion existed where the
alleged threat was “wholly unsupported by any evidence and [was] conclusory insofar as [the]
[p]laintiff point[ed] to no facts regarding such intimidation”); Medina v. Kaplan, No. 16-CV7223, 2018 WL 797330, at *5 (S.D.N.Y. Feb. 8, 2018) (“Conclusory allegations of intimidation
19
are insufficient to establish the unavailability of administrative remedies. . . . There is no
allegation that the threat was even related to [the plaintiff’s] grievance and ability to exhaust
available administrative relief.” (citation omitted)). 4
Accordingly, although Plaintiff failed to complete any of the steps of the IGP with
respect to the allegations contained in the Amended Complaint, an exception to the exhaustion
requirement plausibly applies. This ruling is without prejudice to Defendants raising this issue in
a summary judgment motion.
c. Personal Involvement of Defendant Perez
“It is well settled that, in order to establish a defendant’s individual liability in a suit
brought under § 1983, a plaintiff must show . . . the defendant’s personal involvement in the
alleged constitutional deprivation.” Grullon, 720 F.3d at 138. To establish personal
involvement, a plaintiff must show that:
(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.
Id. at 139 (citation, italics and quotation marks omitted). In other words, “[b]ecause vicarious
liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal,
556 U.S. at 676. Therefore, Plaintiff must plausibly allege that Defendant Perez’s actions fall
4
The Court further notes that Defendants focus solely on the question whether Plaintiff
completed exhaustion, and fail entirely to address the question whether any exception to
exhaustion applies. (See Defs.’ Mem. 9–10; Defs.’ Reply 2–3.)
20
into one of the five categories identified above. See Lebron v. Mrzyglod, No. 14-CV-10290,
2017 WL 365493, at *4 (S.D.N.Y. Jan. 24, 2017) (holding that the five categories “still control[]
with respect to claims that do not require a showing of discriminatory intent” post-Iqbal).
Plaintiff does not allege that Defendant Perez herself committed, or “participated
directly” in, the alleged assault and inadequate medical care or that Perez “created a policy or
custom” enabling those allegations. Grullon, 720 F.3d at 139. Plaintiff alleges only that
Defendant Perez did not respond to a letter, sent on February 24, 2014, “complaining about the
assault [and] negligence and request[ing] to be moved to another complex or facility because
Plaintiff feared that he would be assaulted and retaliated against by all [D]efendants mentioned
in this [Amended] [C]omplaint.” (Am. Compl. ¶ 29.) The letter states:
On Feb. 21, 2014, around 9:15 a.m., I was attacked and assaulted by a[n] officer
for no reason. The officer ignored my request for medical attention and showed no
remorse for his actions. The medical department also treated me unfair and
neglected me. There [were] two officers who took me to the hospital and both
officers also mistreated me, neglected my medical needs, injuries[,] and health. I
feel like this entire facility[’s] staff members and officers are disrespecting,
harming[,] and mistreating me because of the assault against me. Why was I placed
back in this cell knowing there is a possibility that my attacker can harm me
again[?] I don’t want to be in this complex or jail. Can I please be moved away to
another location to avoid future attacks and mistreatment[?]
(Am. Compl. Ex. C1.) This letter suggests a “gross negligence,” “failure to remedy,” or
“deliberate indifference” theory of personal involvement. (See Pl.’s Mem. 7.) Yet, Plaintiff
states that, “[o]n March 3rd, 2014, [P]laintiff was placed on a draft and drafted the next day . . .
to Great Meadow Correctional Facility.” (Am. Compl. ¶ 33.) And Plaintiff attaches a letter, sent
by another prison official on behalf of Perez, stating: “You are currently in Reception status.
When your classification is complete, you will be transferred to a facility that will meet your
identified needs.” (Am. Compl. Ex. D5.) In other words, Plaintiff alleges that, less than two
weeks after requesting a facility transfer from Perez, he both received a response and was in fact
21
transferred. It therefore cannot be said either that Perez failed to address Plaintiff’s request, that
Perez was deliberately indifferent to Plaintiff’s complaint, or that Perez was grossly negligent in
supervising subordinates in responding to Plaintiff’s request. See Thompson v. Booth, No. 16CV-3477, 2018 WL 4760663, at *7 (S.D.N.Y. Sept. 28, 2018) (holding no personal involvement
where “[t]here is no allegation that [a defendant] failed to act on information regarding the
[allegedly] unlawful conduct or otherwise acted with gross negligence” (third alteration in
original) (citation and quotation marks omitted)). Accordingly, Plaintiff fails to allege Perez’s
personal involvement in the alleged constitutional violations raised in the Amended Complaint.
d. Eighth Amendment Claims Against Dr. Benheim, Nameth, Travis, and
Whelan 5
“The Eighth Amendment forbids ‘deliberate indifference to serious medical needs of
prisoners.’” Spavone v. N.Y. State Dep’t of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013)
(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). An inmate’s claim of deliberate
indifference to his medical needs by those overseeing his care is analyzed under the Eighth
Amendment because it is an allegation that “conditions of confinement [are] a form of
punishment” and thus is a “violation of [the] Eighth Amendment right to be free from cruel and
unusual punishments.” Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017). To state a deliberate
indifference claim, Plaintiff must plausibly allege (1) “that he suffered a sufficiently serious
constitutional deprivation,” and (2) that Defendants “acted with deliberate indifference.”
Feliciano v. Anderson, No. 15-CV-4106, 2017 WL 1189747, at *8 (S.D.N.Y. Mar. 30, 2017).
The first element is “objective” and requires Plaintiff show that the “alleged deprivation
of adequate medical care [is] sufficiently serious.” Spavone, 719 F.3d at 138 (citation and
5
Defendants do not move to dismiss Plaintiff’s Eighth Amendment claim against Ulysse.
22
quotation marks omitted). In other words, “the inmate must show that the conditions, either
alone or in combination, pose an unreasonable risk of serious damage to his health.” Walker v.
Schult, 717 F.3d 119, 125 (2d Cir. 2013) (citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
Analyzing this objective requirement involves two inquiries: “whether the prisoner was actually
deprived of adequate medical care,” and “whether the inadequacy in medical care is sufficiently
serious,” which in turn “requires the court to examine how the offending conduct is inadequate
and what harm, if any, the inadequacy has caused or will likely cause the prisoner.” Salahuddin
v. Goord, 467 F.3d 263, 279–80 (2d Cir. 2006). “There is no settled, precise metric to guide a
court in its estimation of the seriousness of a prisoner’s medical condition.” Brock v. Wright,
315 F.3d 158, 162 (2d Cir. 2003). Nevertheless, the Second Circuit has offered the following
non-exhaustive list of factors to consider when evaluating an inmate’s medical condition:
“(1) whether a reasonable doctor or patient would perceive the medical need in question as
important and worthy of comment or treatment, (2) whether the medical condition significantly
affects daily activities, and (3) the existence of chronic and substantial pain.” Id. (citation and
quotation marks omitted).
The second element, which goes to mental state, requires Plaintiff show that the prison
officials were “subjectively reckless in their denial of medical care.” Spavone, 719 F.3d at 138
(citation omitted). This means that the official must have “appreciate[d] the risk to which a
prisoner was subjected,” and have had a “subjective awareness of the harmfulness associated
with those conditions.” Darnell, 849 F.3d at 35; see also Nielsen v. Rabin, 746 F.3d 58, 63 (2d
Cir. 2014) (“Deliberate indifference is a mental state equivalent to subjective recklessness,” and
it “requires that the charged official act or fail to act while actually aware of a substantial risk
that serious inmate harm will result.” (citation and quotation marks omitted)). In other words,
23
“[i]n medical-treatment cases not arising from emergency situations, the official’s state of mind
need not reach the level of knowing and purposeful infliction of harm; it suffices if the plaintiff
proves that the official acted with deliberate indifference to inmate health.” Id. (citation and
quotation marks omitted). An official’s awareness of the risk of serious harm can be established
through “inference from circumstantial evidence,” including “from the very fact that the risk was
obvious.” Farmer v. Brennan, 511 U.S. 825, 842 (1994). However, “mere negligence” is
insufficient to state a claim for deliberate indifference. Walker, 717 F.3d at 125 (quoting
Farmer, 511 U.S. at 835). Neither does “mere disagreement over the proper treatment . . . create
a constitutional claim,” and accordingly, “[s]o long as the treatment given is adequate, the fact
that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment
violation.” Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998).
i. Dr. Benheim
Defendants argue that Plaintiff’s inadequate deliberate indifference claim is nothing more
than a non-actionable disagreement with the treatment provided to him by Dr. Benheim. (Defs.’
Mem. 13.) The Court agrees. The Amended Complaint and accompanying attachments show
that, on February 21, 2014, following the alleged assault by Ulysse, Plaintiff was taken to the
medical unit, where x-rays and photographs were taken of the injury (although it is unclear by
whom). (Am. Compl. ¶ 12.) Dr. Benheim then “grabbed” Plaintiff’s “left arm and attempted to
put [his] right arm in a medical sling,” ignoring Plaintiff’s complaints, (id. ¶¶ 13, 42), and
“forced” Plaintiff to lie down by picking him up by the legs and pushing his upper body down on
the bed, (id. ¶ 14). Plaintiff “begged” Dr. Benheim “not to touch” him and “requested the
service of a different physician and to be taken to an outside hospital.” (Id. ¶ 15.) Dr. Benheim
“ignored” Plaintiff and attached an IV with an “unknown narcotic” to Plaintiff’s arm without
24
asking for Plaintiff’s consent or whether he was allergic to it. (Id. ¶¶ 15–16.) 6 The IV
“immediately” caused Plaintiff to “sweat, feel cold, have trouble breathing, feel dizzy, [feel]
panic-struck, [feel] naus[eous] and hallucinate,” have “short epileptic episodes,” and feel “half
his body numbed, frozen and the other half in great pain.” (Id. ¶¶ 17, 19.) Dr. Benheim then
injected Plaintiff with “another dose of an unknown narcotic,” causing Plaintiff pain from the
needle — which was inserted “carelessly” into his injured arm — and causing Plaintiff to
become “incoherent” and “unresponsive” and to have “blurry vision.” (Id. ¶¶ 18, 40.) Dr.
Benheim then referred Plaintiff for a consultation at an outside hospital. (Id. ¶ 24; see also Am.
Compl. Exs. B1–B2.)
These allegations show that Dr. Benheim did not ignore Plaintiff’s medical needs or deny
Plaintiff medical care. Rather, within about an hour of Plaintiff’s injury, Dr. Benheim conducted
an examination of Plaintiff’s arm and shoulder, treated him with pain medication, and, having
taken contemporaneous notes as to Plaintiff’s condition and possible diagnosis, referred Plaintiff
for further treatment. (See Am. Compl. Exs. B2–B3.) Although Plaintiff sharply disagreed with
Dr. Benheim’s treatment at the time and now alleges that he had an adverse reaction to the
medication administered, Plaintiff essentially alleges “negligence amounting to medical
malpractice,” which is “insufficient to state a claim of deliberate indifference.” Whitley v. Ort,
No. 17-CV-3652, 2018 WL 4684144, at *8 (S.D.N.Y. Sept. 28, 2018) (citations omitted); see
also Chance, 143 F.3d at 703 (noting that “mere disagreement over the proper treatment” is
insufficient, provided that “the treatment given is adequate”); Melvin v. County of Westchester,
No. 14-CV-2995, 2016 WL 1254394, at *7 (S.D.N.Y. Mar. 29, 2016) (holding that “treatment of
6
Medical records attached to the Amended Complaint show that Plaintiff was
administered Toradol, a non-steroidal anti-inflammatory drug. (See Am. Compl. Exs. D1–D2.)
25
a prisoner’s medical condition generally defeats a claim of deliberate indifference” (citation and
quotation marks omitted)). Accordingly, Plaintiff fails to satisfy either element required to state
an Eighth Amendment deliberate indifference claim.
Further, to the extent Plaintiff alleges that Dr. Benheim improperly denied him a medical
shower from February 22–24, 2014, (Am. Compl. ¶¶ 26–27), such a claim does not rise to the
level of an Eighth Amendment violation. “Courts in this circuit routinely reject conditions-ofconfinement claims based on the temporary denial of showers.” Williams v. Ramos, No. 13-CV826, 2013 WL 7017674, at *6 (S.D.N.Y. Dec. 23, 2013); see McCoy, 255 F. Supp. 2d at 260
(holding that “a two-week suspension of shower privileges does not suffice as a denial of ‘basic
hygienic needs’”); Dolberry v. Levine, 567 F. Supp. 2d 413, 417 (W.D.N.Y. 2008) (holding that
the denial of showers for “several weeks” would not constitute an Eighth Amendment violation);
Ramirez v. Holmes, 921 F. Supp. 204, 208 (S.D.N.Y. 1996) (holding that the denial of a shower
on three occasions did not constitute a serious deprivation); Graham v. Kuhlmann, No. 88-CV6618, 1990 WL 210298, at *4 (S.D.N.Y. Dec. 12, 1990) (holding that allowing an inmate one
shave and shower per week provided minimally adequate hygiene).
ii. Nameth
Defendants argue that Plaintiff fails to establish Defendant Nameth’s deliberate
indifference to Plaintiff’s medical needs. (Defs.’ Mem. 15–16.) The Court agrees. Plaintiff
alleges that, immediately following the alleged assault by Ulysse, he was escorted to Nameth’s
office “to be questioned about the incident that occurred.” (Am. Compl. ¶¶ 10, 41–42.) While
being questioned, “Plaintiff complained about is injuries and pain and asked [Nameth] could the
investigation be postponed so that [he] can receive medical treatment.” (Id. ¶ 10.) However,
Nameth “denied [his] request and stated: ‘You have to answer these questions first.’” (Id.) The
26
delay ultimately lasted “twenty minutes or so,” after which Plaintiff was escorted for medical
care. (Id. ¶ 12.) In Plaintiff’s view, Nameth “knew [he] was in great amounts of pain, [yet] did
nothing to prevent [his] suffering and disregarded an excessive risk to [his] medical needs.” (Id.
¶ 42.)
These allegations fail to establish Nameth’s deliberate indifference. “[A] delay in
treatment does not violate the constitution unless it involves an act or failure to act that evinces a
conscious disregard of a substantial risk of serious harm.” Pabon v. Wright, No. 99-CV-2196,
2004 WL 628784, at *8 (S.D.N.Y. Mar. 29, 2004) (citation and quotation marks omitted), aff’d,
459 F.3d 241 (2d Cir. 2006). That is, “denying or delaying needed treatment for a serious
medical condition constitutes deliberate indifference for Eighth Amendment purposes only if,”
for example, “officials delayed care as a form of punishment, ignored a life-threatening and fastdegenerating condition for several days, or delayed major surgery.” Myrie v. Calvo, 615 F.
Supp. 2d 246, 248 (S.D.N.Y. 2009) (citation omitted). Plaintiff makes no allegation that Nameth
delayed Plaintiff’s treatment in order to punish him; to the contrary, Plaintiff acknowledges that
Nameth questioned him for the purpose of investigating the incident. Nor does Plaintiff suggest
that Nameth ignored a serious medical condition over a long period of time. Rather, the
Amended Complaint shows that Plaintiff received medical treatment less than one hour after the
alleged assault, and that Nameth’s investigation delayed medical treatment by some twenty
minutes. (Am. Compl. ¶¶ 11–12; see also Am. Compl. Exs. D1–D4.) Plaintiff alleges that the
twenty-minute delay “caus[ed] his right and mid-area of the arm to swell,” but there is no
allegation that such a delay caused Plaintiff any additional injuries or harm and, indeed, the
ensuing x-rays and photographs showed that Plaintiff suffered no fracture and required no
serious treatment beyond administration of an anti-inflammatory drug. There is, therefore, “no
27
evidence that [Nameth] consciously disregarded a substantial risk of serious harm through
deliberate delay of treatment.” Pabon, 2004 WL 628784, at *8; see also Waller v. DuBois, No.
16-CV-6697, 2018 WL 1605079, at *7 (S.D.N.Y. Mar. 29, 2018) (dismissing deliberate
indifference claim in part because “the alleged delay . . . was minimal”). Accordingly, Plaintiff’s
deliberate-indifference claim against Nameth is dismissed.
iii. Travis and Whelan
(a) Handcuffing
Plaintiff alleges that Defendants Travis and Whelan, in transporting Plaintiff to an outside
hospital for treatment, “aggressively grabbed [his] arms, pulling both arms towards [his] back,”
placed him in handcuffs, and, because he was “unable to walk,” “carried [him] by the arms” to
the van rather than placing him in a cart or stretcher. (Am. Compl. ¶¶ 19–20.) Plaintiff contends
that Travis and Whelan did so while “highly aware of [his] injuries and disabilities after
receiving medical reports that [were] required to be giv[en] to” outside physicians. (Id. at 30.)
Plaintiff further alleges that, although he “was unable to [speak] because of the narcotic effects,”
he “showed signs of distress from the restraints by crying and moaning.” (Id. ¶ 20.) Finally,
Plaintiff alleges that, once in the van, he “vomited twice” and “blacked out” in the van, “woke up
on the van floor,” and “was unable to get up or move” due to “the ongoing effects of the
unknown narcotics and being restrained by hand and ankle shackles.” (Id. ¶ 23.)
Defendants argue that this claim of excessive force is, at most, a de minimis allegation
that does not implicate the Eighth Amendment. (See Defs.’ Mem. 17–18.) The Court agrees.
To be sure, overly tight handcuffing can in some circumstances constitute excessive force. See
Kerman v. City of New York, 261 F.3d 229, 239–40 (2d Cir. 2001). “In evaluating the
reasonableness of handcuffing, the Court is to consider evidence that: 1) the handcuffs were
28
unreasonably tight; 2) the defendants ignored the plaintiff’s pleas that the handcuffs were too
tight; and 3) the degree of injury to the wrists.” Lynch ex rel. Lynch v. City of Mount Vernon,
567 F. Supp. 2d 459, 468 (S.D.N.Y. 2008) (citation, quotation marks, and alteration omitted). A
failure to allege any continuing injury from the handcuffing is “fatal” to a claim of excessive
force. Id. Put another way, “the use of tightly fastened handcuffs that result in . . . only minor
injuries is not an actionable use of excessive force.” Johnson v. City of New York, No. 09-CV4685, 2011 WL 1044852, at *4 (S.D.N.Y. Mar. 18, 2011) (citation and quotation marks
omitted)); Blue v. City of New York, No. 14-CV-7836, 2018 WL 1136613, at *11 (S.D.N.Y. Mar.
1, 2018) (“Generally, handcuffing that does not cause injury beyond temporary discomfort or
bruising does not rise to the level of an excessive force claim.” (citation omitted)).
Here, Plaintiff alleges that the narcotics administered to him caused him to be “unable to
[speak]” and then to “vomit[] twice” and “black[] out” in the van. (Am. Compl. ¶¶ 20, 23.) Yet,
the Amended Complaint alleges that Dr. Benheim — not Travis or Whelan — gave Plaintiff the
narcotics that caused these injuries, (see id. ¶¶ 15–19), and Plaintiff does not otherwise suggest
that these injuries are attributable to Travis or Whelan. Plaintiff also alleges that, in being taken
to the van, he “showed signs of distress from the [handcuffs] by crying and moaning,” (id. ¶ 20);
that Travis and Whelan “carried [him] by the arms” to the van when he “was unable to walk,”
(id.); and that, upon waking up in the van, he “was unable to get up or move” due to the narcotics
and the handcuffs, (id. ¶ 23). Yet, Plaintiff does not suggest that these actions caused him a
“lasting injury.” Blue, 2018 WL 1136613, at *11. Accordingly, the Amended Complaint fails to
state an Eighth Amendment handcuffing claim.
(b) Second-Hand Smoke
Plaintiff alleges that Whelan smoked “a cigarette” while Plaintiff was in the van with the
29
door open, causing him “to have trouble breathing.” (Am. Compl. ¶ 21.) Plaintiff further alleges
that the van door was then closed, causing Plaintiff “to inhale the second hand smoke and
carbon-monoxide for approximately ten to fifteen minutes or so before the van was started up.”
(Id. ¶ 22.) As Defendants argue, however, (see Defs.’ Mem. 16–17; Defs.’ Reply 7–8), this
claim is a de minimis allegation that does not implicate the Eighth Amendment. The Supreme
Court has stated that, in order to make out an Eighth Amendment claim based on exposure to
second-hand smoke, Plaintiff must show that Defendants “have, with deliberate indifference,
exposed him to levels of [environmental tobacco smoke (“ETS”)] that pose an unreasonable risk
of serious damage to his future health.” Helling v. McKinney, 509 U.S. 25, 35 (1993); accord
Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002); Johnson v. Goord, 01-CV-9587, 2005 WL
2811776, at *7 (S.D.N.Y. Oct. 27, 2005) (“The Supreme Court made clear in Helling . . . that
inmates do not have an unqualified constitutional right to a smoke-free environment, but only a
right to be free of involuntary exposure to a level of ETS which ‘unreasonably endangers’ their
future health.” (alteration omitted) (quoting Helling, 509 U.S. at 35)).
Here, Plaintiff cannot meet this standard. Plaintiff alleges facts that are a far cry from
those in Helling, 509 U.S. at 28, in which the Supreme Court declined to grant summary
judgment where the plaintiff shared a cell with someone who smoked five packs of cigarettes per
day. Indeed, the facts alleged by Plaintiff do not come close even to those in which courts have
dismissed ETS-based claims. See Islam v. Connolly, No. 07-CV-3225, 2011 WL 723568, at *7–
8 (S.D.N.Y. Feb. 16, 2011) (holding that the plaintiff failed to show that he was being exposed to
unreasonably high levels of ETS where the plaintiff’s cell was next to that of a smoker);
Johnson, 2005 WL 2811776, at *5 (granting summary judgment where, “unlike in Helling . . .
[here the] plaintiffs do not allege that they were forced to share cells with smokers”); Zaire v.
30
Artuz, No. 99-CV-9817, 2003 WL 230868, at *5 (S.D.N.Y. Feb. 3, 2003) (granting summary
judgment where the plaintiff was only exposed to second-hand smoke in common areas). Nor
does Plaintiff allege that he sought treatment for smoke inhalation or that he suffers from a
medical condition that makes him especially susceptible to smoke inhalation. See Enigwe v.
Zenk, No. 03-CV-854, 2007 WL 2713849, at *3 (E.D.N.Y. Sept. 14, 2007) (noting that the
plaintiff “has not alleged that he suffers from a medical condition, such as asthma, that was
exacerbated by exposure to ETS”). Finally, Plaintiff has made no showing that Travis acted with
deliberate indifference; Plaintiff does not allege that he complained to Travis about the smoke or
that he suffered from some medical condition, or that Travis otherwise knowingly disregarded
Plaintiff’s sensitivity to ETS. See id. at *6 (“There is no evidence that prison officials were
aware that [the plaintiff] was being exposed to unreasonably high levels of ETS.”). Accordingly,
Plaintiff’s Eighth Amendment ETS claim must fail.
e. First Amendment Retaliation Claim
“Prisoners have a constitutional right to petition the government, and it is a violation of
§ 1983 for prison officials to retaliate against prisoners for the exercise of that right.” Bartley v.
Collins, No. 95-CV-10161, 2006 WL 1289256, at *4 (S.D.N.Y. May 10, 2006). To state a First
Amendment claim of retaliation, an inmate must allege “(1) that the speech or conduct at issue
was protected, (2) that the defendant took adverse action against the [inmate], and (3) that there
was a causal connection between the protected conduct and the adverse action.” Holland v.
Goord, 758 F.3d 215, 225 (2d Cir. 2014) (citation, quotation marks, and original alteration
omitted). An adverse action is any “retaliatory conduct that would deter a similarly situated
individual of ordinary firmness from exercising his or her constitutional rights.” Davis v. Goord,
320 F.3d 346, 353 (2d Cir. 2003) (citation omitted). In determining whether a prison official’s
31
conduct constitutes adverse action, “the court’s inquiry must be tailored to the different
circumstances in which retaliation claims arise, bearing in mind that prisoners may be required to
tolerate more than average citizens.” Id. (citation, quotation marks, and alterations omitted).
“[B]ecause virtually any adverse action taken against a prisoner by a prison official — even
those otherwise not rising to the level of a constitutional violation — can be characterized as a
constitutionally proscribed retaliatory act,” the Second Circuit has instructed that district courts
must “approach prisoner retaliation claims with skepticism and particular care.” Dolan v.
Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (citation and quotation marks omitted); see also
Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (“Retaliation claims by prisoners are prone
to abuse since prisoners can claim retaliation for every decision they dislike.” (citation and
quotation marks omitted)). Accordingly, First Amendment retaliation claims must be supported
by “specific and detailed factual allegations” and not stated in “wholly conclusory terms.”
Dolan, 794 F.3d at 295 (citation and quotation marks omitted).
Here, Plaintiff alleges that, on February 24, 2014, he wrote a letter to Perez “complaining
about the assault” and requesting a transfer to another facility out of a “fear[] that he would be
assaulted and retaliated against by all defendants.” (Am. Compl. ¶ 29.) Two days later, while
Plaintiff was in the lunch hall, Ulysse “verbally threatened” Plaintiff by telling him “not to file a
grievance or he would retaliate and make sure other officers in any facility [he] is transferred to
retaliate as well.” (Id. ¶ 30.) Ulysse also stated, “[You’re] not going to win with me,” and
demanded Plaintiff hand over his ace bandage, which Plaintiff did, “out of fear for his life,
safety, and to prevent further assaults and retaliation.” (Id. ¶¶ 30–31.) Finally, on March 6,
2014, following Plaintiff’s March 4, 2014 transfer to Great Meadow, Plaintiff was “taken to a
hearing for a [m]isbehavior report that [he] had no knowledge or notice of” and that was both
32
“false” and “an act of retaliation” by Ulysse. (Id. ¶¶ 35–36; see also Am. Compl. Ex. D6
(misbehavior report); id. Ex. D7 (disciplinary hearing disposition).)
Defendants argue that these allegations are conclusory. (See Defs.’ Mem. 19.) The Court
disagrees. These allegations, taken as true for purposes of this Motion, are, if barely, sufficiently
specific to state a First Amendment claim of retaliation. As to the first Holland requirement,
Plaintiff engaged in protected speech by writing a letter of complaint to Perez. See Booth v.
Comm’r of Corr., No. 19-CV-100, 2019 WL 919580, at *5 (D. Conn. Feb. 25, 2019) (“Filing
complaints and grievances is protected activity.” (citing Gill v. Pidlypchak, 389 F.3d 379, 380
(2d Cir. 2004)); Quezada v. Roy, No. 14-CV-4056, 2017 WL 6887793, at *11 (S.D.N.Y. Dec.
14, 2017) (“[P]rotected activity is not limited to the filing of grievances, and there is some
evidence that [the] [p]laintiff complained to [one defendant] about [another defendant’s]
harassing conduct, which is its own exercise of protected activity.” (citation omitted)); Smith v.
Woods, No. 03-CV-480, 2006 WL 1133247, at *10 (N.D.N.Y. Apr. 24, 2006) (noting that “the
First Amendment protects . . . the filing of written grievances and complaints”) (citation
omitted)), aff’d, 219 F. App’x 110 (2d Cir. 2007). And, as to the second and third Holland
requirements, Plaintiff sufficiently alleges adverse action that plausibly is causally connected to
Plaintiff’s protected conduct. Plaintiff first alleges that Ulysse “verbally threatened” him by
telling him “not to file a grievance or he would retaliate and make sure other officers in any
facility [he] is transferred to retaliate as well” and further demanded Plaintiff hand over his ace
bandage. (Id. ¶¶ 30–31.) “Verbal threats may qualify as adverse actions” only where they are
“sufficiently specific and direct.” White, 2018 WL 6726555, at *17 (collecting cases); see also
Terry v. Hulse, No. 16-CV-252, 2018 WL 4682784, at *11 (S.D.N.Y. Sept. 28, 2018) (same).
Here, Plaintiff explains when and where the threat took place. Further, Plaintiff indicates that
33
Ulysse’s threat was directly related to the February 2014 incident of alleged assault and to the
possibility that a grievance would be filed against him in connection with that incident. To be
sure, Plaintiff does not explain what precisely Ulysse’s threat was; there is no indication, for
example, that Ulysse directly threatened physical harm. However, given that the initial
interaction between Ulysse allegedly involved physical harm, and given that Ulysse took
Plaintiff’s ace bandage following the threat, (see Am. Compl. ¶¶ 30–31) — an action that could
be understood as designed to cause Plaintiff discomfort and pain — this action could well “deter
a similarly situated [inmate] of ordinary firmness from exercising his or her constitutional
rights,” namely, the filing of a grievance or complaint. Davis, 320 F.3d at 353 (citation omitted).
Moreover, context suggests that Plaintiff was in fact intimidated by Ulysse’s threat. Two days
prior, Plaintiff had written a letter to Perez complaining about Ulysse’s assault. (See Am.
Compl. Ex. C1.) And following Ulysse’s threat, Plaintiff filed numerous formal grievances
relating to other issues. (See Am. Compl. Exs. D16–D18, D24–D41.) Yet, despite taking these
actions, Plaintiff did not file a formal grievance against Ulysse relating to the assault. The
Amended Complaint thus indicates that, just two days after filing a complaint, Ulysse threatened
Plaintiff not to file a grievance against him, and that Ulysse’s threat had its intended effect. See
Kerman v. City of New York, 261 F.3d 229, 242 (2d Cir. 2001) (officer’s statement to plaintiff
that he “would teach [plaintiff] a lesson and give him something to sue for” stated a retaliation
claim); cf. Jacques v. Dep’t of Corr., No. 18-CV-308, 2018 WL 5619715, at *6 (D. Conn. Oct.
30, 2018) (holding that, “[o]ther than a bare allegation of threats of physical violence, [the
plaintiff] has not alleged any facts that could support a claim of retaliation”); Deangelis v.
Property Officer Cowels, No. 16-CV-472, 2016 WL 4443140, at *2, *4 (D. Conn. Aug. 18,
2016) (holding the plaintiff’s allegation that he “filed a lost property claim form” and that the
34
defendant “later told him that she had lost the receipt and later denied the claim” to be “not
sufficiently specific and detailed” because there was no allegation that the defendant
“deliberately lost his property receipt in retaliation for his filing a [reimbursement] claim”).
Accordingly, Plaintiff plausibly states a First Amendment retaliation claim against Ulysse
sufficient to survive a motion to dismiss. 7 This ruling is without prejudice to Defendants raising
this issue in a summary judgment motion.
f. Monell Liability
Plaintiff sues Defendants in both their individual and official capacities. “A claim
asserted against a [defendant] in his official capacity . . . is in effect a claim against the
governmental entity itself . . . for ‘official-capacity suits generally represent only another way of
pleading an action against an entity of which an officer is an agent.’” Lore v. City of Syracuse,
670 F.3d 127, 164 (2d Cir. 2012) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55
7
The Court notes, however, that Plaintiff’s other allegations of retaliation are insufficient
to state a First Amendment retaliation claim. Plaintiff alleges that, following his March 4, 2014,
transfer to Great Meadow, (see Am. Compl. ¶¶ 33–39), he was told by another inmate that there
was a note stating that Plaintiff “was an asshole, litigant[,] and grieving threat[,] and [giving] an
order to destroy all of [his] property,” (id. ¶ 34). Yet, Plaintiff does not allege that his property
was destroyed or otherwise connect this allegation to an act of retaliation. Plaintiff also claims
that Ulysse directed that a false and retaliatory misbehavior report be filed against him, that he
“was taken to a hearing” on March 6, 2014 regarding the report without prior notice, and that he
was found “guilty and punished” despite the fact that the “hearing officer stated [that] he could
not locate [the relevant] evidence for [P]laintiff to defend himself.” (Id. ¶¶ 35–36.) Although it
is true that the Second Circuit has held that “the filing of false misbehavior reports” — at least
those that result in the imposition of serious punishments, such as “three weeks in keeplock” —
“would deter a prisoner of ordinary firmness from vindicating his or her constitutional rights
through the grievance process and the courts” and thus constitute adverse action, Gill, 389 F.3d
at 384 (2d Cir. 2004), here, Plaintiff both fails to describe the punishment’s type or duration and
fails to plausibly connect the false misbehavior report to Ulysse. Indeed, the misbehavior report
was filed not by Ulysse but by a non-party prison official, and does not name or involve Ulysse.
(Am. Compl. ¶¶ 35–36.) Plaintiff finally claims that, “[s]ince March 6, 2014, [he] has
experienced numerous acts of retaliation by employees of [DOCCS] in regards to filing
complaints, grievances, property claims[,] and lawsuits.” (Id. ¶ 37.) This claim, however, is
“wholly conclusory,” Dolan, 794 F.3d at 295, as it identifies no specific retaliatory act.
35
(1978))). “Congress did not intend municipalities to be held liable [under § 1983] unless action
pursuant to official municipal policy of some nature caused a constitutional tort.” Monell, 436
U.S. at 691. Thus, “to prevail on a claim against a municipality under [§] 1983 based on acts of
a public official, a plaintiff is required to prove: (1) actions taken under color of law;
(2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an
official policy of the municipality caused the constitutional injury.” Roe v. City of Waterbury,
542 F.3d 31, 36 (2d Cir. 2008) (citing Monell, 436 U.S. at 690–91). The fifth element reflects
the notion that a Monell defendant “may not be held liable under § 1983 solely because it
employs a tortfeasor.” Bd. of County Comm’rs v. Brown, 520 U.S. 397, 403 (1997); see also
Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986) (noting that a municipality may not be
held liable under § 1983 “by application of the doctrine of respondeat superior” (citation and
italics omitted)). Rather, “municipalities may only be held liable when the municipality itself
deprives an individual of a constitutional right.” Newton v. City of New York, 566 F. Supp. 2d
256, 270 (S.D.N.Y. 2008). A plaintiff may satisfy the fifth element by alleging one of the
following:
(1) a formal policy officially endorsed by the municipality; (2) actions taken by
government officials responsible for establishing the municipal policies that caused
the particular deprivation in question; (3) a practice so consistent and widespread
that, although not expressly authorized, constitutes a custom or usage of which a
supervising policy-maker must have been aware; or (4) a failure by policymakers
to provide adequate training or supervision to subordinates to such an extent that it
amounts to deliberate indifference to the rights of those who come into contact with
the municipal employees.
Brandon v. City of New York, 705 F. Supp. 2d 261, 276–77 (S.D.N.Y. 2010) (citations omitted).
Here, Plaintiff fails entirely to allege that any Defendant acted pursuant to a formal
DOCCS or other policy, that any Defendant acted pursuant to a DOCCS, Downstate, or other
practice or custom, that any Defendant was responsible for the promulgation of policies relevant
36
to Plaintiff’s claims, or that any Defendant failed to receive adequate training or supervision and,
because of that failure, caused Plaintiff’s injuries. Accordingly, because Plaintiff does not allege
the fifth element required to state a Monell claim, his claims against Defendants in their official
capacities must be dismissed. See McKenzie v. City of Mount Vernon, No. 18-CV-603, 2018 WL
6831157, at *7 (S.D.N.Y. Dec. 28, 2018) (dismissing Monell claims where the plaintiff did “not
allege any facts suggesting a policy or custom that led to [the] alleged” deprivation).
III. Conclusion
For the reasons stated above, Defendants’ Motion To Dismiss is granted in part and
denied in part. 8
The Court dismisses Plaintiff’s state-law claims with prejudice.
The Court dismisses Plaintiff’s claims against Defendants Perez, Benheim, Nameth,
Travis, and Whelan, as well as Plaintiff’s claims against all Defendants in their official
capacities, without prejudice. If Plaintiff wishes to file a second amended complaint, Plaintiff
must do so within 30 days of the date of this Opinion. Plaintiff should include within that second
amended complaint any changes to correct the deficiencies identified in this Opinion that
Plaintiff wishes the Court to consider. Plaintiff is advised that the second amended complaint
will replace, not supplement, all prior complaints. The second amended complaint must contain
all of the claims, factual allegations, and exhibits that Plaintiff wishes the Court to consider. If
Plaintiff fails to abide by the 30-day deadline, his claims may be dismissed with prejudice.
8
The Court need not address at this time whether any Defendant is entitled to qualified
immunity. Defendants’ one-page qualified immunity argument fails to meaningfully apply the
relevant law to the facts of this case. (See Defs.’ Mem. 21–22.) Further, Defendants “are
represented by counsel and attempting to dismiss a pro se Complaint.” Whitley v. Bowden, No.
17-CV-3564, 2018 WL 2170313, at *12 (S.D.N.Y. May 10, 2018). Defendants are free to renew
— and sufficiently argue — their qualified immunity defense at a later date.
37
The Clerk is respectfully directed to terminate the pending Motion, (Dkt. No. 32), and to
mail a copy of this Order to Plaintiff.
SO ORDERED.
Dated: March t:6_, 2019
White Plains, New York
38
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