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September 15, 2003


The opinion of the court was delivered by: Gerard E. Lynch, District Judge


Plaintiff Cyril Kendall, an inmate at the Rikers Island Correctional Facility ("Rikers Island"), brings this action pro se against various corrections officers, the New York City Department of Corrections ("DOCS"), and the prison itself, alleging that he was denied medically-indicated housing and medically-indicated supplies required by a post-operative condition. Defendants move to dismiss, arguing that plaintiff has failed to exhaust administrative remedies pursuant to the Prison Litigation Reform Act. In the alternative, DOCS and Rikers Island move to dismiss on the grounds that they are nonsuable agencies of the City of New York. For the reasons that follow, the former relief will be granted and the latter denied. [ Page 2]


The facts alleged in the Complaint must be taken as true in deciding this motion to dismiss. From the time of the events in question and continuing to the present, the plaintiff was housed in the North Infirmary Command at Rikers Island in protective custody. (PL Opp. ¶ 5.) Plaintiff suffers from asthma, as indicated in a letter from his criminal defense attorney to the prison. (Compl. Ex. 2, Letter from Hugh G. Jasne to Warden Squalente [sic], dated Sept. 26, 2002.) Plaintiff alleges that in August 2002, he passed out several times due to inhaling secondhand cigarette smoke in his living area. As a result, Dr. Adriana Vives made a medical consultation request on August 26, 2002, to house plaintiff in a non-smoking dormitory. (Compl. Ex. 1.) Dr. Vives made another consultation request to the same effect on September 24, 2002. (Compl. Ex. 3.) Plaintiff claims that these requests were given to and ignored by defendants Squillante and Fraser, and that he continued to be housed in an area pervaded by second-hand smoke that made it difficult for him to breathe. In addition, plaintiff claims that his former attorney informed Warden Squillante that he needed to be placed in smoke-free housing by letter dated September 26, 2002. (Compl. Ex. 2.)

Dr. Vives made a third medical consultation request on October 4, 2002, requesting that plaintiff be permitted to keep bottled water and food in his cell, and be permitted access to filtered water and the water fountain. (Compl. Ex. 4.) Plaintiff claims that these requests were also ignored by the prison authorities, and that defendants Kittles, Charles, Johnson and Cunningham, who worked shifts in his dormitory, prevented him from accessing the water fountain. (Compl. IV-A.) [ Page 3]

In October 2002, plaintiff underwent outpatient surgery at Bellevue Hospital for a hemorrhoid condition. (Compl. IV-A). As a result of this surgery, plaintiff required medical supplies to care for himself. On November 11, 2002, Physician's Assistant Allen I. Walker made a medical consultation request that plaintiff be provided with change of dressing and extra sheets for privacy while performing bathroom functions. (Compl. Ex. 5.) Plaintiff alleges that this request was ignored by prison authorities. Plaintiff also claims that he required a private toilet and a toilet seat and alleges that requests for that were likewise ignored. (Compl. IV-A.)

Plaintiff alleges that as a result of the prison's refusal to accommodate his medical requests, he has been forced to live in a smoke-filled area that makes it difficult for him to breathe and causes dizziness and vomiting; he cannot take his medications with food and water as medically indicated; he has had to drink water from the bathroom sink which causes his scrotum to hemorrhage; and he experiences fainting spells, abdominal pain and rectal bleeding.

Plaintiff asserts that he attempted to bring his grievances to Grievance Coordinator Mohammed Akinlolu (not a defendant here), but that Officer Akinlolu informed him that his complaint was not a grievance and refused even to document such response. (Compl. ELC.2.) In his opposition to the motion to dismiss, plaintiff further asserts that he requested and was denied an interview with the Grievance Resolution Committee to discuss his requests to be housed in a non-smoking area and to keep food and water in his cell. (PL Opp. ¶ 11.) Plaintiff also argues that because he was housed in protective custody, he did not have access to the official grievance forms located in another part of the prison, and that corrections officers refused to supply him with grievance forms. (Pl. Opp. ¶ 6.) Plaintiff brought suit on January 8, 2003, seeking injunctive relief, as well as monetary compensation for his pain and suffering. [ Page 4]


I. Standard for Dismissal under Rule 12(W6)

On a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must accept "as true the facts alleged in the complaint," Jackson Nat'l Life Ins. Co. v. Merrill Lynch & Co., 32 F.3d 697, 699-700 (2d Cir. 1994), and may grant the motion only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Thomas v. City of New York, 143 F.3d 31, 36 (2d Cir. 1998) (citations omitted); see also Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996) (when adjudicating motion to dismiss under Fed.R.Civ.P. 12(b)(6), the "issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims" (internal quotation marks and citations omitted)). When deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents attached to the complaint as exhibits or incorporated in it by reference. Brass v. American Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).

All reasonable inferences are to be drawn in the plaintiffs favor, which often makes it "difficult to resolve [certain questions] as a matter of law." In re Independent Energy Holdings PLC, 154 F. Supp.2d 741, 747 (S.D.N.Y. 2001). The task of a court in ruling on a 12(b)(6) motion is "`merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) quoting Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984).

Furthermore, because "most pro se plaintiffs lack familiarity with the formalities of pleading requirements, [courts] must construe pro se complaints liberally, applying a more [ Page 5]

flexible standard to evaluate their sufficiency." Lerman v. Board of Elections in the City of New York, 232 R3d 135,140 (2d Cir. 2000) citing Hughes v. Rowe, 449 U.S. 5, 9-10 (1980). A pro se litigant's supporting papers must be read broadly and "interpret[ed] to raise the strongest arguments that they suggest." Soto v. Walker, 44 ...

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