Barnett v. Westchester County et al

Filing 62

OPINION & ORDER: re: 59 MOTION to Dismiss Plaintiff's Amended Complaint. filed by Penny, Aramark Correctional Services, LLC, Craig, Penny Stewart, Manuel Mendoza, Charles Butler, Charles, Aramark Food Services, W estchester County, Craig Boissy, Coffey Kohli, Coley, Kevin M. Cheverko. For the foregoing reasons, Defendants motion to dismiss is GRANTED. Plaintiff's remaining claims are dismissed without prejudice and with leave to replea d. Plaintiff may file a Second Amended Complaint consistent with this Opinion on or before October 21, 2021. An Amended Civil Rights Complaint form is attached to this Order. Failure to file an Amended Complaint within the tim e allowed, and without good cause to excuse such failure, will result in dismissal of Plaintiff's Complaint with prejudice. The Clerk of the Court is respectfully directed to terminate Defendants' Motion to Dismiss at ECF No. 59. The C lerk of the Court is further directed to mail a copy of this Opinion to Plaintiff at his last address listed on ECF and show proof of service on the docket. So Ordered. (Signed by Judge Nelson Stephen Roman on 9/4/2021) (js) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
9/4/2021

JEROME BARNETT,
Plaintiff,

No. 18-cv-2483 (NSR)
OPINION & ORDER

-againstWESTCHESTER COUNTY, et al.,
Defendants.
NELSON S. ROMÁN, United States District Judge:

Plaintiff Jerome Barnett (“Plaintiff”), proceeding pro se, commenced this action, pursuant
to 42 U.S.C. § 1983 (“Section 1983”), by the filing of his Complaint on April 1, 2018. (ECF No.
1.) In a previous Opinion dated February 28, 2020, the Court dismissed Plaintiff’s Religious
Freedom Restoration Act (“RFRA”) and Religious Land Use and Institutionalized Person Act of
2000, 42 U.S.C. § 2000cc, et seq. (“RLUIPA”) claims with prejudice, and dismissed Plaintiff’s
Section 1983 claims without prejudice. (ECF No. 44.) Plaintiff subsequently filed an Amended
Complaint on July 9, 2020 asserting Section 1983, RLUIPA, and RFRA claims against Defendants
Westchester County (“Westchester”), Commissioner Kevin Cheverko, Aramark Correctional
Services, LLC (“Aramark”), Aramark Food Services Director Manual Mendoza, Kitchen Civilians
Charles Butler and Coffey Kohli (collectively, “Defendants”).

(See Plaintiff’s Amended

Complaint (“Am. Compl.”) (ECF No. 51).) Presently before the Court is the motion of Defendants
to dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6). (ECF
No. 59.) Plaintiff did not submit any opposition to the motion. For the following reasons,
Defendants’ motion is GRANTED, and Plaintiff’s Amended Complaint is dismissed without
prejudice.

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BACKGROUND
I.

Factual Allegations
The following facts are derived from the Amended Complaint or matters of which the
Court may take judicial notice, are taken as true, and constructed in the light most favorable to pro
se Plaintiff for the purposes of this motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);

Nicosia v. Amazon.com, Inc., 834 F.3d 220, 230 (2d Cir. 2016).
Plaintiff alleges that he is currently incarcerated at Cape Vincent Correctional Facility (Am.
Compl. at 2 1) and was previously incarcerated at Westchester County Jail (“WCJ”) in or around
2017, where the events giving rise to this action occurred (id. at 4). When he arrived at WCJ on
February 10, 2017, he was informed by unspecified persons that “the foods that Aramark were
serving inmates were still substandard, undercooked, rotted food, bread was stale or molded, and
the food trays smell horrible from the water lodged in them.” (Id.) On an unspecified date,
Plaintiff concluded that “meal trays are not cleaned properly” and noticed that “trays still had food
on them” and “meals were arriving cold from sitting in the halls waiting to be picked up.” (Id.)
Also on an unspecified date, Plaintiff “filed several informal grievances and complaints” and was
told by unspecified “correction officers and sergeant [that] if [Plaintiff is] go[ing to] complaint,
[then] don’t come to prison.” (Id.)
Plaintiff identifies six dates “of occurrences”—February 10, 2017, February 11, 2017,
February 15, 2017, October 15, 2017, October 30, 2017, and November 14, 2017—that give rise
to his action, but largely fails to describe what events took place on those dates. (Id.) Nor does
Plaintiff describe conduct engaged in by any of the individual defendants after referencing them

1

Plaintiff’s Amended Complaint does not contain numbered paragraphs.
Accordingly, citations to the Amended Complaint in this Opinion refer to the page(s) where the
cited allegations are raised.
2

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in the case caption and list of defendants. As mentioned above, Plaintiff states that he was
informed of negligent food practices upon his arrival on February 10, 2017. He also alleges that,
on an unspecified date in or around October 2017, he noticed that meatballs that he was served by
an unspecified person were undercooked and pink, showed the meatballs to an unspecified housing
unit officer, the officer logged the issue in a complaint book, and Plaintiff subsequently
experienced gastric distress, diarrhea, and vomiting. (Id.) Afterwards, on unspecified dates, meals
“continued to arrive undercooked . . . on dirty trays” and on a “number of times” he found hair in
his meals. (Id. at 5.) Though Plaintiff identifies his current place of incarceration as Cape Vincent
Correctional Facility, he simultaneously alleges that the food issues at WCJ are “an on-going
problem, that happens almost every meal, every day” and given the repetitiveness of these issues
“officers are tired of logging the same complaints” and “have an attitude when [asked Plaintiff] to
log . . . complaint[s] in the book.” (Id.)
In connection with the above allegations, Plaintiff asserts “violation[s] of my rights as
guaranteed by the First, Eighth, Fourteenth Amendments to the U.S. Const., RIUPA and RFRA”
and claims injuries including “significant weight loss, extreme stomach pains and cramps,
vomiting, nausea, hunger pains, [and] suffering headaches.” (Id.) Plaintiff seeks compensatory,
punitive, and special damages in an amount no less than $10,000,000, and preferably in the amount
of $925,000,000. (Id.)
II.

Procedural History
Plaintiff Keith Hall filed his Complaint on April 2, 2018. (See Complaint (ECF No. 1).)
Subsequently, by Opinion & Order dated February 28, 2020, the Court dismissed Plaintiff’s
RLUIPA and RFRA claims with prejudice and dismissed Plaintiff’s Section 1983 without
prejudice and with leave to replead. (Opinion & Order dated February 28, 2020 (“Opinion”) (ECF
No. 44).) Plaintiff filed his Amended Complaint on July 9, 2020. Presently before the Court is
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the motion of Defendants to dismiss the remaining claims against them in their entirety pursuant
to Federal Rules of Civil Procedure 12(b)(6).

(ECF No. 59.)

Defendants submitted a

memorandum in support of their motion. (Defendants’ Memorandum of Law in Support of their
Motion to Dismiss (“Defs’ Mem.”) (ECF No. 60).) Plaintiff did not oppose the motion. This
Opinion follows.
LEGAL STANDARD
I.

Fed. R. Civ. P. 12(b)(6)
On a Fed. R. Civ. P. 12(b)(6) motion, dismissal is proper unless the complaint “contain[s]
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). When there are well-pleaded factual allegations in the complaint, “a court should
assume their veracity and then determine whether they plausibly give rise to an entitlement to
relief.” Id. at 679. When a motion to dismiss a complaint is unopposed, a court should nevertheless
“assume the truth of a pleading’s factual allegations and test only its legal sufficiency.” McCall v.
Pataki, 232 F.3d 321, 322 (2d Cir. 2000).
The critical inquiry is whether the plaintiff has pled sufficient facts to nudge the claims
“across the line from conceivable to plausible.” Twombly, 550 U.S. at 555. A motion to dismiss
will be denied where the allegations “allow[] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
Pro se complaints are to be liberally construed. Estelle v. Gamble, 429 U.S. 97, 106 (1976).
They must be held to less stringent standards than complaints written by lawyers, and only
dismissed when the plaintiff can prove “no set of facts in support of his claim which would entitle
him to relief.” Estelle, 429 U.S at 106 (quoting Conley v. Gibson, 335 U.S. 41, 45–46 (1957)).
This “is particularly so when the pro se plaintiff alleges that [his] civil rights have been violated.”
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Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Pro se complaints must
be interpreted as raising the strongest claims they suggest, but “must still state a plausible claim
for relief.” Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013).
II.

42 U.S.C. § 1983 Claims
Section 1983 provides, in relevant part, that: “[e]very person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected,
any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured.” 42 U.S.C. § 1983.
Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights
elsewhere conferred by those parts of the United States Constitution and federal statutes that it
describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); see Cornejo v. Bell, 592 F.3d 121,

127 (2d Cir. 2010). To state a claim under Section 1983, a plaintiff must allege two essential
elements: “(1) that the defendants deprived him of a right ‘secured by the Constitution or laws of
the United States’; and (2) that they did so ‘under color of state law.’” Giordano v. City of New
York, 274 F.3d 740, 750 (2d Cir. 2001) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
49–50 (1999)).
DISCUSSION
Read liberally, Plaintiff’s Amended Complaint asserts three types of claims against
Defendants. First, Plaintiff brings a Monell claim against Westchester and Aramark, based on an
alleged failure to properly train and supervise their subordinates and a longstanding pattern of
providing substandard food. Second, Plaintiff nominally asserts a First Amendment claim against
all Defendants but fails to assert any facts supporting such a claim. Third, Plaintiff brings a claim
for deliberate indifference to his conditions of confinement against all Defendants under the
Fourteenth Amendment.
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Separately, the Court notes that Plaintiff attempts to once against assert claims under
RLUIPA and RFRA but, as these claims were dismissed with prejudice, Plaintiff cannot resurrect
those claims in an Amended Complaint and they remain dismissed with prejudice. Finally, the
Court notes that Plaintiff no longer appears to assert a claim for deprivation of his rights under the
Equal Protection Clause which is no longer invoked or discussed or implicated by the allegations
in the Amended Complaint.
The Court addresses the remaining claims below.
I.

Municipal Liability of Westchester and Aramark
In contrast to the Complaint, the Amended Complaint lacks any substance upon which the
Court could even liberally infer what Plaintiff’s underlying theory is as to liability under Monell
v. Dep’t of Social Servs. of City of New York, 436 U.S. 658 (1978). In any event, the Court
concludes that Plaintiff has not asserted any facts upon which the Court could conclude that
Defendants failed to adequately train employees or support conduct that amounted to a custom or
policy under Monell.
A municipality, or private actor engaged in governmental action, 2 may not be held liable
under Section 1983 on a respondeat superior theory solely because the municipality employs a
tortfeasor. Monell, 436 U.S. at 691. Therefore, under Monell, a plaintiff must demonstrate “that

2

Courts that have considered the issue have found that Aramark, in its capacity as a
food provider at WCJ, can be viewed as a state actor for purposes of assessing Monell liability.
See, e.g., Pagan v. Westchester Cty., No. 12 Civ. 7669(PAE)(JCF), 2014 WL 982876, at *23–24
(S.D.N.Y. Mar. 12, 2014). Indeed, this Court has previously explained that (1) “Aramark’s
‘seemingly private’ behavior can be treated as that of the state given that the challenged action,
proper food service, flows directly from the obligations of the government entity and is performed
under its supervision,” and (2) “Aramark, by providing meals to inmates, performs a ‘public
function’ and therefore is a state actor.” Salgado v. DuBois, No. 17-cv-6040 (NSR), 2019 WL
1409808, at *9 (S.D.N.Y. Mar. 28, 2019). The Court need not further explore this issue at this
time because Aramark has permitted the Court to treat it as a state actor for purpose of this motion
only. (Defs. Mem. at 10.)
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the municipality itself caused or is implicated in the constitutional violation.” Amnesty Am. v.
Town of W. Hartford, 361 F.3d 113, 125 (2d Cir. 2004). This generally requires a plaintiff to
allege that “(1) an official custom or policy [] (2) subjected [him or her] to (3) a denial of a
constitutional right.” Ferrari v. Cty. of Suffolk, 790 F. Supp. 2d 34, 40 (E.D.N.Y. 2011); see also
Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008) (“In order to prevail on a claim against a
municipality under [S]ection 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.”). To establish an official custom or policy, a plaintiff must allege
(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.
White v. Westchester Cty., No. 18-CV-730 (KMK), 2018 WL 6726555, at *10 (S.D.N.Y. Dec. 21,
2018) (quoting Brandon v. City of New York, 705 F. Supp. 2d 261, 276–77 (S.D.N.Y. 2010)).
Failure to Train: Where municipal liability is based on a failure to train employees, the
inadequate training must “reflect[] deliberate indifference to . . . constitutional rights.” City of
Canton v. Harris, 489 U.S. 378, 392 (1989). To prove deliberate indifference, a plaintiff must
properly plead (1) “that a policymaker knows ‘to a moral certainty’ that her employees will
confront a given situation”; (2) “that the situation either presents the employee with a difficult
choice of the sort that training or supervision will make less difficult or that there is a history of
employees mishandling the situation”; and (3) “that the wrong choice by the . . . employee will
frequently cause the deprivation of a citizen’s constitutional rights.” Okin v. Vill. of Cornwall-On7

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Hudson Police Dep’t, 577 F.3d 415, 440 (2d Cir. 2009) (citing Walker v. City of New York, 974
F.2d 293, 297–98 (2d Cir. 1992)). Here, Plaintiff does not mention any failure by Westchester or
Aramark to properly train and supervise its employees or contractors with respect to food safety.
As this Court previously advised Plaintiff that it was insufficient to make a conclusory assertion
that Defendants improperly trained their employees (Opinion at 7), it follows that he fails to
plausibly plead a failure to train where he does not even attempt to make any allegations regarding
the training and supervision of food service providers.
Unofficial Policy or Custom: If a plaintiff is premising Monell liability on an unofficial
policy or custom, the practice, custom, or usage must be so widespread and so persistent that it has
the force of law. Goode v. Westchester Cty., No. 18-cv-2963 (NSR), 2019 WL 2250278, at *3
(S.D.N.Y. May 24, 2019). Here, Plaintiff, at best, attempts to establish that Defendants’ conduct
is consistent and widespread by alleging that issues with food service “is an on-going problem,
that happens almost every meal, everyday.” (Am. Compl. at 5.) However, this allegation is even
less suggestive of actionable conduct than Plaintiff’s conclusory claim in the Complaint that
Westchester and Aramark “allowed for a longstanding pattern of substandard food” at WCJ.
(Compl ¶ 40.) As the prior more directly relevant (but conclusory) allegation was insufficient to
plausibly allege a municipal policy or custom, it follows that Plaintiff’s even less relevant
conclusory allegation about the quality of meals is insufficient to establish a municipal policy or
custom.
In sum, Plaintiff has failed to adequately allege the existence of an official policy or its
equivalent, and has fared even worse than in his initial pleadings. Defendants’ motion to dismiss
Plaintiff’s claims against Defendants Westchester, Aramark, and individual defendants sued in
their official capacity, is GRANTED, and those claims are dismissed without prejudice.

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II.

Personal Involvement
Defendants argue that Plaintiff’s claim fails for the additional reason that Plaintiff did not
allege personal involvement on the part of any Defendant in the decision to defer his surgery. The
Court agrees.
In general, “personal involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.” McKinnon v. Patterson, 568 F.2d 930, 934
(2d Cir. 1977). “[A] defendant in a § 1983 action may not be held liable for damages for
constitutional violations merely because he [or she] held a high position of authority.” Black v.

Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); see also Grullon v. City of New Haven, 720 F.3d 133,
138–39 (2d Cir. 2013). Personal involvement of a supervisory defendant may be shown by
evidence of any of the following factors (the “Colon factors”):
(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.
Grullon, 720 F.3d at 139 (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). Notably,
“mere ‘knowledge and acquiescence’” to unconstitutional conduct, or mere failure to act on a
complaint, without more, fails to state a claim under Section 1983. Faulk v. N.Y.C. Dep’t of Cor.,
No. 08-CV-1668(LGS), 2014 WL 239708, at *10 (S.D.N.Y. Jan. 21, 2014); Mateo v. Fischer, 682
F. Supp. 2d 423, 430 (S.D.N.Y. 2010) (“[T]he receipt of letters or grievances, by itself, does not
amount to personal involvement.”).
Here, Plaintiff fails to allege any conduct engaged in by any of the named individual
defendants, and the only place their names appear in the Amended Complaint is in the case caption
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or list of defendants. Simply naming individuals as defendants and including them in the case
caption is insufficient to plausibly allege a Section 1983 claim. See, e.g., Iwachiw v. New York
State Dep’ t of Motor Vehicles, 299 F. Supp. 2d 117, 121 (E.D.N.Y. 2004) (“[W]here the complaint
names a defendant in the caption but contains no allegations indicating exactly how the defendant
violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to that
defendant should be granted”) (citations omitted)), aff’d, 396 F.3d 525 (2d Cir. 2005).
Accordingly, the facts are far from sufficient to support Defendants’ personal involvement
in any constitutional deprivation, and each of his claims against Kevin Cheverko, Manual
Mendoza, Charles Butler, and Coffey Kohli in their individual capacities are dismissed without
prejudice. Should Plaintiff elect to file an amended complaint, this deficiency must be cured.
III.

Sufficiency of Plaintiff’s Claims
Even if the Court had concluded that Plaintiff established the personal involvement of the

individual defendants or that Westchester County and Aramark could be held liable under Monell,
it would still conclude that Plaintiff has failed to state any claim upon which relief can be granted.
A.

Free Exercise Claim

Plaintiff nominally asserts a free exercise claim by, in sum, alleging a “violation of my
rights as guaranteed by the First . . . Amendment[.]” (Am. Compl. at 5.) Defendants argue that
“Plaintiff does not set forth any facts in his Amended Complain[t] that can reasonably be construed
as a First Amendment violation.” (Defs’ Mem. At 9.) The Court agrees with Defendants.
To establish a free exercise claim, an inmate must typically plead that he or she had a
sincerely held religious belief that was substantially burdened by conduct that was not reasonably
related to a legitimate penological interest. Corbett v. Annucci, No. 16-cv-4492 (NSR), 2018 WL
919832, at *3 (S.D.N.Y. Feb. 13, 2018) (citing Turner v. Sidorowicz, No. 12-CV-7048 (NSR),
2016 WL 3938344, at *5 (S.D.N.Y. July 18, 2016); Holland v. Goord, 758 F.3d 215, 220–23 (2d
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Cir. 2014)). “[A]n individual claiming violation of free exercise rights need only demonstrate that
the beliefs professed are sincerely held and in the individual’s own scheme of things, religious.”
Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003).
In its previous Opinion, this Court concluded that “Plaintiff has not alleged that he has a
sincerely held religious belief that was violated by the quality of meals he received” because
“Plaintiff openly admits that he pretended to be Jewish only so that he could receive what he
thought would be higher quality meals.” (Opinion at 14.) In other words, Plaintiff previously
identified a religious belief that might have been violated by the quality of meals he was served
but failed to assert a plausible claim because he admitted that his “beliefs” were not sincerely held.
In the Amended Complaint, Plaintiff does not identify any religion that he purports to observe.
The Amended Complaint is even less plausible than the Complaint because Plaintiff no longer
even asserts an insincerely held religious belief. Accordingly, Defendants’ motion to dismiss
Plaintiff’s free exercise claim is GRANTED, and the claim is dismissed without prejudice.
B.

Conditions of Confinement Claim

To set forth a Section 1983 conditions-of-confinement claim under the Fourteenth
Amendment, a plaintiff must show that an individual “acted with deliberate indifference to the
challenged conditions.” See Sanders v. City of New York, No. 16 Civ. 7426 (PGG), 2018 WL
3117508, at *6 (S.D.N.Y. June 25, 2018). This deliberate indifference test for a pretrial detainee
contains an objective prong and a mens rea prong. Darnell v. Pieiro, 849 F.3d 17, 29 (2d Cir.
2017). Likewise, where deliberate indifference claims are brought by pretrial detainees, as is the
case here, 3 such claims are analyzed under the Due Process Clause of the Fourteenth Amendment,
3

It is unclear whether Plaintiff’s claims are predicated upon conduct that occurred
while he was a pre-trial detainee or a post-conviction inmate. On the one hand, Plaintiff
identifies himself as a convicted and sentenced prisoner in his Amended Complaint form. (Am.
Compl. at 2.) On the other hand, Plaintiff previously asserted that he was a pretrial detainee at
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rather than under the Eighth Amendment, because “pretrial detainees have not been convicted of
a crime and thus ‘may not be punished in any manner—neither cruelly and unusually nor
otherwise.’” Id. (internal alterations omitted).
The objective prong requires that the “deprivation at issue be, ‘in objective terms,
sufficiently serious.’” Simmons v. Mason, No. 17-CV-8886 (KMK), 2019 WL 4525613, at *9
(S.D.N.Y. Sept. 18, 2019). A plaintiff “must show that the conditions, either alone or in
combination, pose an unreasonable risk of serious damage to his health.” Darnell, 849 F.3d at 30.
“There is no ‘static test’ to determine whether a deprivation is sufficiently serious; instead, ‘the
conditions themselves must be evaluated in light of contemporary standards of decency.’” Id. at
29 (quoting Blissett v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995)).
As relevant here, the Constitution “require[s] that prisoners be served ‘nutritionally
adequate food that is prepared and served under conditions which do not present an immediate
danger to the health and well being of the inmates who consume it.’” Robles v. Coughlin, 725
F.2d 12, 15 (2d Cir. 1983) (quoting Ramos v. Lamm, 639 F.2d 559, 571 (10th Cir. 1980), cert.
denied, 450 U.S. 1041 (1981)). Courts have held that “allegations that a prisoner was served food
contaminated or tainted by foreign objects” may satisfy the objective prong of the deliberate
indifference test. See Crispin v. Westchester Cty., No. 18 CV 7561 (VB), 2019 WL 2419661, at
*3 (S.D.N.Y. June 10, 2019) (quoting Ballard v. Lane, No. 18-cv-1721 (AJN), 2019 WL 1129158,
at *2 (S.D.N.Y. Mar. 12, 2019)).
Under the mens rea prong, “a plaintiff must plausibly allege that the defendant-official
acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care

WCJ in his Complaint. (Compl. ¶ 14.) In an abundance of caution the Court analyzes Plaintiff’s
claims pursuant to the more plaintiff friendly standard accorded to pre-trial detainees.
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to mitigate the risk that the condition posed to the pretrial detainee even though the defendantofficial knew, or should have known, that the condition posed an excessive risk to health or safety.”
Strange v. Westchester Cty. Dep’t of Corr., No. 17-CV-9968 (NSR), 2018 WL 3910829, at *2
(S.D.N.Y. Aug. 14, 2018) (internal quotations omitted). This standard is “defined objectively”
and “can be violated when an official does not have subjective awareness that the official’s acts .
. . have subjected the detainee to a substantial risk of harm.” Darnell, 849 F.3d at 30.
Plaintiff alleges that he received undercooked meatballs on several occasions, that the food
trays regularly contain old food from previous meals, and that he found hair in his meals on
multiple occasions. (Am. Compl. at 4-5.) Plaintiff further alleges that he became sick after eating
undercooked meatballs and subsequently sought medical treatment for his ailments, which
included, inter alia, weight loss, stomach pains and cramps, vomiting/nausea, daily hunger pains,
and headaches. (Id.) Drawing all reasonable inferences in Plaintiff’s favor, the Court concludes
that Plaintiff has sufficiently alleged that he was exposed to conditions that “plausibly posed an
unreasonable risk of serious damage to [P]laintiff’s health.” See, e.g., Adeghe v. Westchester Cty.,
No. 18 CV 7912 (VB), 2019 WL 4142470, at *3 (S.D.N.Y. Aug. 30, 2019) (concluding that
plaintiff satisfied objective prong of deliberate indifference test by alleging that “he was served
food contaminated with plastic tray chippings, hair, flies, and mold; that his food was undercooked,
and that he has been consistently ill as a result of the food, including suffering diarrhea, vomiting,
fatigue, and more”); Crispin, 2019 WL 2419661 at *3 (concluding that plaintiff satisfied objective
prong of deliberate indifference test by alleging (1) “that on at least twenty occasions, his meal
tray contained raw and bloody meat—food that is nutritionally inadequate, to say the least,” (2)
that “he was served food contaminated with mold and tainted with plastic chips,” both resulting in
various ailments).

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Plaintiff, however, has failed to meet the mens rea prong of the deliberate indifference test.
Plaintiff claims that: (1) he “filed several informal grievances and complaints” of an unknown
subject matter and that unspecified officers told him not to complain, (2) he complained to an
unspecified housing unit officer who witnessed his undercooked meatball, and (3) that unspecified
officers “are tired of logging the same complaints.” (Am. Compl. at 4-5.) Based on those
allegations, Plaintiff fails to assert any affirmative conduct, omission, knowledge possessed by, or
knowledge that should have been possessed by any of the defendants, and accordingly has not
plausibly alleged that any defendant acted with deliberate indifference. As in Adeghe, the mens
rea prong is not satisfied because Plaintiff failed to allege that any defendants “serv[ed] [P]laintiff
the allegedly inadequate food” much less that they “prepared or served plaintiff the food that made
him sick, w[ere] present on the occasions when plaintiff was served that food, or knew of any
instance on which plaintiff was allegedly served inadequate food either before or after the fact.”
2019 WL 4142470 at *4.
Since Plaintiff has not provided any allegation indicating that any of the Defendants acted
intentionally to impose unsanitary food service, or recklessly failed to act with reasonable care, his
deliberate indifference claim fails. Accordingly, the Court GRANTS Defendants’ motion to
dismiss that claim without prejudice and with leave to replead.
IV.

Leave to Amend
Generally pro se plaintiffs are allowed an opportunity to amend their complaint before the

Court will dismiss it with prejudice. Owens v. N.Y.C. Dep’t of Sanitation, No. 11-CV-8297, 2013
WL 150245, at *3 (S.D.N.Y. Jan. 15, 2013) (“[A] court should grant leave to amend [to a pro se
litigant] at least once before dismissing [a complaint] with prejudice”); Breer v. Maranville, No.
12-CV-0053, 2012 WL 6597707, at *3 (D. Vt. Nov. 27, 2012) (“The Second Circuit has cautioned
that district courts should not dismiss pro se complaints with prejudice without granting leave to
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amend at least once when a liberal reading of the complaint gives any indication that a valid claim
might be stated.”). Though this Court has already afforded Plaintiff an opportunity to amend his
complaint, it appears Plaintiff significantly misunderstood the legal import of amending a
complaint. Indeed, Plaintiff’s Amended Complaint is far less detailed and does not address any of
the deficiencies identified in the Opinion. Plaintiff will be given another chance to further amend
his complaint. To the extent that Plaintiff elects to file a Second Amended Complaint he should
bear in mind that the Second Amended Complaint will replace not supplement the First Amended
Complaint so any claims, facts, or attachments that Plaintiff wishes the Court to consider must be
within or attached to the Third Amended Complaint.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED. Plaintiff’s
remaining claims are dismissed without prejudice and with leave to replead. Plaintiff may file a
Second Amended Complaint consistent with this Opinion on or before October 21, 2021. An
Amended Civil Rights Complaint form is attached to this Order. Failure to file an Amended
Complaint within the time allowed, and without good cause to excuse such failure, will result in
dismissal of Plaintiff’s Complaint with prejudice.
The Clerk of the Court is respectfully directed to terminate Defendants’ Motion to Dismiss
at ECF No. 59. The Clerk of the Court is further directed to mail a copy of this Opinion to Plaintiff
at his last address listed on ECF and show proof of service on the docket.

Dated: September 4, 2021
White Plains, New York

SO ORDERED:

________________________________
NELSON S. ROMÁN
United States District Judge
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Case 7:18-cv-02483-NSR Document 62 Filed 09/07/21 Page 17 of 22

I.

BASIS FOR JURISDICTION

Federal courts are courts of limited jurisdiction (limited power). Generally, only two types of
cases can be heard in federal court: cases involving a federal question and cases involving
diversity of citizenship of the parties. Under 28 U.S.C. § 1331, a case arising under the United
States Constitution or federal laws or treaties is a federal question case. Under 28 U.S.C. § 1332,
a case in which a citizen of one State sues a citizen of another State or nation, and the amount
in controversy is more than $75,000, is a diversity case. In a diversity case, no defendant may
be a citizen of the same State as any plaintiff.
What is the basis for federal-court jurisdiction in your case?
☐ Federal Question
☐ Diversity of Citizenship
A. If you checked Federal Question
Which of your federal constitutional or federal statutory rights have been violated?

B. If you checked Diversity of Citizenship
1. Citizenship of the parties
Of what State is each party a citizen?
The plaintiff ,

, is a citizen of the State of
(Plaintiff’s name)

(State in which the person resides and intends to remain.)
or, if not lawfully admitted for permanent residence in the United States, a citizen or
subject of the foreign state of
.
If more than one plaintiff is named in the complaint, attach additional pages providing
information for each additional plaintiff.

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If the defendant is an individual:
The defendant,

, is a citizen of the State of
(Defendant’s name)

or, if not lawfully admitted for permanent residence in the United States, a citizen or
subject of the foreign state of
.

If the defendant is a corporation:
The defendant,

, is incorporated under the laws of

the State of
and has its principal place of business in the State of
or is incorporated under the laws of (foreign state)
and has its principal place of business in

.

If more than one defendant is named in the complaint, attach additional pages providing
information for each additional defendant.

II. PARTIES
A. Plaintiff Information
Provide the following information for each plaintiff named in the complaint. Attach additional
pages if needed.

First Name

Middle Initial

Last Name

Street Address

County, City

State

Telephone Number

Zip Code

Email Address (if available)

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Case 7:18-cv-02483-NSR Document 62 Filed 09/07/21 Page 19 of 22

B. Defendant Information
To the best of your ability, provide addresses where each defendant may be served. If the
correct information is not provided, it could delay or prevent service of the complaint on the
defendant. Make sure that the defendants listed below are the same as those listed in the
caption. Attach additional pages if needed.
Defendant 1:

First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

Defendant 2:

First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

Defendant 3:
First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

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Defendant 4:
First Name

Last Name

Current Job Title (or other identifying information)
Current Work Address (or other address where defendant may be served)
County, City

State

Zip Code

III. STATEMENT OF CLAIM
Place(s) of occurrence:

Date(s) of occurrence:

FACTS:

State here briefly the FACTS that support your case. Describe what happened, how you were
harmed, and what each defendant personally did or failed to do that harmed you. Attach
additional pages if needed.

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INJURIES:

If you were injured as a result of these actions, describe your injuries and what medical
treatment, if any, you required and received.

IV. RELIEF
State briefly what money damages or other relief you want the court to order.

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Case 7:18-cv-02483-NSR Document 62 Filed 09/07/21 Page 22 of 22

V. PLAINTIFF’S CERTIFICATION AND WARNINGS
By signing below, I certify to the best of my knowledge, information, and belief that: (1) the
complaint is not being presented for an improper purpose (such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported
by existing law or by a nonfrivolous argument to change existing law; (3) the factual
contentions have evidentiary support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for further investigation or discovery;
and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil
Procedure 11.
I agree to notify the Clerk's Office in writing of any changes to my mailing address. I
understand that my failure to keep a current address on file with the Clerk's Office may
result in the dismissal of my case.
Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to
proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated

Plaintiff’s Signature

First Name

Middle Initial

Last Name

Street Address
County, City
Telephone Number

State

Zip Code
Email Address (if available)

I have read the Pro Se (Nonprisoner) Consent to Receive Documents Electronically:
☐ Yes

☐ No

If you do consent to receive documents electronically, submit the completed form with your
complaint. If you do not consent, please do not attach the form.

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