United States District Court, E.D. New York
July 8, 2004.
LOUIS EDWARD DAVIS a.k.a. MICHAEL DAVIS, Plaintiff,
EDWARD REILLY, Nassau County Sheriff, and DR. JAMES NEAL Defendants.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
The pro se plaintiff Louis Edward Davis aka Michael Davis
("Davis" or the "plaintiff" commenced this action against the
Nassau County Sheriff Edward Reilly ("Reilly") and Dr. James Neal
("Dr. Neal"), the Medical Director of the Nassau County
Correctional Center (the "NCCC"), for violation of
42 U.S.C. § 1983. Presently before the Court is a motion by Reilly to dismiss
the complaint pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure for failure to state a claim upon which relief
can be granted.
All facts are taken from the complaint unless otherwise stated.
On April 18, 2003, while incarcerated at the NCCC, the plaintiff
slipped on a wet cement floor outside of the shower area and was
injured. The plaintiff claims that he was made to lie in "dirty
shower water" for approximately thirty minutes until an ambulance
arrived to escort him to the Nassau University Medical Center
(the "Medical Center"). At the Medical Center, the plaintiff
received several X-rays and a CAT scan. The treating doctor
informed the plaintiff that he had sprained his neck and back.
The doctor then gave the plaintiff a shot to "loosen" his stiff
neck and back. Approximately four hours later, the plaintiff was
returned to the NCCC.
The following day, the plaintiff complained of pains in his
back and neck area when he attempted to walk around.
Additionally, he claims he suffered "needle like" pains in his
left testicle and sustained lacerations on the rear of his head.
A doctor saw the plaintiff and informed him that his pains were
normal given his fall on the previous day. The plaintiff was also
given pain medication three times per day.
At some point between April, 2003 and September, 2003, the
plaintiff was transferred from the NCCC to Downstate Correctional
Facility. In a letter dated September 10, 2003, the plaintiff
informed the Court that he was transferred to the Green Haven
Correctional Facility in Stormville, New York.
On August 5, 2003, the plaintiff commenced this action against
Reilly and Dr. Neal. The plaintiff claims that Reilly violated
Section 1983 by failing to place shower mats and tiles in the
shower area which the plaintiff claims he claims would have
prevented his slip and fall from occurring. The plaintiff also
alleges that Dr. Neal violated Section 1983 and the Eighth
Amendment's prohibition on cruel and unusual punishment by
failing to supervise and adequately train his medical staff to
respond to the plaintiff's medical needs and by acting with a
deliberate indifference to those needs.
Presently before the Court is a motion by Reilly pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss
the complaint for failure to state a claim upon which relief can
Reilly asserts, among other things, that the claims against him
should be dismissed, because (1) the plaintiff's claims are
barred by the Prison Litigation Reform Act of 1995 ("PLRA"); (2)
the plaintiff's complaint fails to state a claim upon which
relief can be granted; and (3) the plaintiff has failed to comply
with New York law.
A. Standard of Review
In reviewing a motion to dismiss for failure to state a claim
upon which relief can be granted pursuant to Rule 12(b)(6), the
Court should dismiss the complaint only if it appears beyond
doubt that the facts alleged in the complaint would not entitle
the plaintiff to relief. King v. Simpson, 189 F.3d 284, 287 (2d
Cir. 1999); see also Bernheim v. Litt, 79 F.3d 318, 321 (2d
Cir. 1996). The Court must accept all of the allegations in the
complaint as true and draw all reasonable inferences in favor of
the plaintiff. See Koppel v. 4987 Corp., 167 F.3d 125, 128 (2d
Cir. 1999); Jaghory v. N.Y. State Dep't of Educ.,
131 F.3d 326, 329 (2d Cir. 1997). Additionally, the issue before the Court
is not whether the plaintiff's claim will ultimately prevail, but
whether the plaintiff is entitled to offer evidence in support of
the claims. Villager Pond, Inc. v. Town of Darien, 56 F.3d 375,
378 (2d Cir. 1995).
Furthermore, the Court must construe a pro se plaintiff's
complaint liberally. See Hughes v. Rowe, 449 U.S. 5, 10,
66 L.Ed.2d 163, 101 S.Ct. 173 (1980); Simmons v. Abruzzo,
49 F.3d 83, 87 (2d Cir. 1995) (citing Haines v. Kerner, 404 U.S. 519,
520, 30 L.Ed.2d 652, 92 S.Ct. 594 (1972)). Here, the plaintiff
filed an "Affirmation in Response to Motion to Dismiss" (the
"Affirmation") in which additional facts are alleged. Thus, when
reviewing factual allegations, the Court may examine materials
outside of the four corners of the pro se plaintiff's
complaint. See e.g., Supinski v. Merrill Lynch & Co., No. 00
Civ. 7363, 2001 WL 930779, at *1 n. 2 (E.D.N.Y. Aug. 13, 2001)
("the policy reasons favoring liberal construction of pro se
pleadings warrant the Court's consideration of the allegations
contained in plaintiff's memorandum of law, at least where those
allegations are consistent with the allegations in the
complaint." (citations omitted)).
B. The Prison Litigation Reform Act of 1995
The Prison Litigation Reform Act of 1995 (the "PLRA"),
42 U.S.C. § 1997e(a), mandates that
[n]o action shall be brought with respect to prison
conditions under section 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
42 U.S.C. § 1997e(a). Although failure to exhaust administrative
remedies is not a jurisdictional predicate under the PLRA, see
Richardson v. Goord, 347 F.3d 431
, 434 (2d Cir. 2003), the
prisoner "must pursue his challenge to the conditions in question
through to the highest level of administrative review prior to
his suit." Flanagan v. Maly, No. 99 Civ. 12336, 2002 U.S. Dist.
LEXIS 1373, at *2 (S.D.N.Y. Jan. 29, 2002).
This exhaustion prerequisite, "applies to all inmate suits
about prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or
some other wrong." Porter v. Nussle, 534 U.S. 516, 532,
152 L.Ed.2d 12, 122 S.Ct. 983 (2002). Claims asserting "deliberate
indifference" concerning medical care are allegations that fall
within the exhaustion requirement of the PLRA. See Baez v.
Parks, 02 Civ. 5821, 2004 U.S. Dist. LEXIS 8182, at *12-13
(S.D.N.Y. May 11, 2004) (citing Wagnoon v. Johnson, No. 02 Civ.
10282, 2004 U.S. Dist. LEXIS 4722, at *4 (S.D.N.Y. Mar. 23, 2004)
(dismissing deliberate indifference claim because inmate failed
to exhaust administrative remedies finding that the claim was
barred by the PLRA).
In this case, the plaintiff has not exhausted his
administrative remedies with regard to his claims against either
defendant. In the complaint, the plaintiff acknowledges that even
though there is a prisoner grievance procedure, he has not
availed himself of that process. In addition, in his Affirmation
the plaintiff admits that he was unaware of any requirement that
he exhaust administrative remedies and, thus "inadvertently
failed to do so." Aff. p. 2.
If a prisoner's failure to exhaust administrative remedies is
merely a "temporary, curable, procedural flaw" that the plaintiff
can cure by exhausting the remedies, dismissal without prejudice
is appropriate. Snider v. Melinaer, 199 F.3d 108, 111-12 (2d
Cir. 1998); see also Morales v. Mackalm, 278 F.3d 126, 131 (2d
Cir. 2002). However, dismissal of a section 1983 complaint with
prejudice is proper where the prisoner failed to exhaust
administrative remedies available after a period of several
months and those remedies are no longer available, partly because
of the prisoner's being transferred to another correctional
facility. Berry v. Kerik, 345 F.3d 126, 128 (2d Cir. 2003);
see also Arnold v. State of New York, No. 01 Civ. 2131, 2003 WL
22901052, at *2 (dismissing complaint with prejudice because of
the "inability to exhaust . . . due to the time limitations
contained in New York's exhaustion scheme.").
Here, the plaintiff had at his disposal administrative remedies
but failed to employ them. Further, the plaintiff is no longer
incarcerated at the NCCC and thus, the administrative remedies
are unavailable. See Berry, 345 F.3d at 128. (noting that
dismissal with prejudice is appropriate if administrative
remedies are no longer available because of the prisoner has been
transferred to another correctional facility).
Accordingly, the plaintiff's claims are barred by the PLRA. In
any event, on the merits, as set forth below, the plaintiff fails
to state a claim upon which relief can be granted.
C. Section 1983
Section 1983 provides that:
Every 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
42 U.S.C. § 1983.
In order to sustain a claim, the "plaintiff must allege (1)
that the challenged conduct was attributable at least in part to
a person acting under color of state law, and (2) that such
conduct deprived the plaintiff of a right, privilege, or immunity
secured by the Constitution or laws of the United States."
Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993).
In addition, it is well-settled that the defendant's personal
involvement is a prerequisite to an award of damages under
Section 1983, see McKinnon v. Patterson, 568 F.2d 930, 934 (2d
Cir. 1977). Any complaint that fails to allege personal
involvement is "fatally defective on its face." Alfaro Motors,
Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987) (internal
quotations and citations omitted). A defendant is "personally
involved" if he or she "directly participated in the infraction."
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citations
omitted). Also, a defendant in a supervisory capacity may be
"personally involved" within the meaning of Section 1983 if the
state actor (1) failed to remedy the wrong after learning of the
violation through a report or appeal; (2) created or continued a
custom or policy under which unconstitutional practices ensued;
or (3) was grossly negligent in managing subordinates who caused
the unlawful condition or event. Id.
In this case, the plaintiff fails to allege that Reilly was
directly involved in his injuries. Furthermore, to the extent
that Reilly is a state actor in a supervisory role, the plaintiff
fails to allege that Reilly created or allowed any custom
regarding wet floors to exist or acted in a grossly negligent
manner in managing the officers he supervised.
Reading the complaint liberally, see Hughes, 449 U.S. at 10,
the plaintiff alleges that Reilly had notice of wet floors
outside the shower area prior to the plaintiff's slip and fall.
Yet even if the plaintiff could implicate Reilly personally,
failure to provide shower mats does not rise to the level of a
constitutional violation within the meaning of Section 1983 and,
thus is not actionable. See Jones v. Nassau County Sheriff
Dep't, 285 F. Supp.2d 322, 326 (E.D.N.Y. 2003) (concluding that
failure to place shower mats in the NCCC "do[es] not trigger the
protections of the Fourteenth Amendment"); Spencer v. Warden
Sylvester, No. 97 Civ. 5491, 1999 U.S. Dist. LEXIS 1098, at * 6
(E.D.N.Y. Feb. 2, 1999) (concluding that a slip and fall claim is
not actionable under Section 1983); see also Daniels v.
Williams, 474 U.S. 327, 332, 88 L.Ed.2d 662, 106 S.Ct. 662
(1986) (stating that the Due Process Clause is not implicated
when prison officials' lack of due care contributes to a pillow
being left on the stairs resulting in a prisoner's injury). In
Daniels, the Supreme Court noted:
We think that the actions of prison custodians in
leaving a pillow on the prison stairs . . . are quite
remote from the concerns [of the Due Process Clause].
Far from an abuse of power, lack of due care suggests
no more than a failure to measure up to the conduct
of a reasonable person. To hold that an injury caused
by such conduct is a deprivation within the meaning
of the Fourteenth Amendment would trivialize the
centuries-old principle of due process of law.
Daniels, 474 U.S. at 332.
Accordingly, the plaintiff's Section 1983 claim against Reilly
D. The Deliberate Indifference Claim
As stated above, the plaintiff claims that Dr. Neal violated
Section 1983 and the Eighth Amendment's prohibition on cruel and
unusual punishment by failing to supervise and adequately train
his medical staff to respond to the plaintiff's medical needs and
by acting with a deliberate indifference to those needs. Although
the plaintiff alleges that his Eighth Amendment rights were
violated, this Amendment applies only to convicted prisoners.
See Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996) (citations
omitted). The Fourteenth Amendment applies to pre-trial
detainees. See Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996)
(citations omitted). Here, the plaintiff does not indicate
whether he has already been convicted of a crime or whether he is
a pre-trial detainee. Nevertheless, regardless of the academic
distinction between the Eighth and Fourteenth Amendments, "the
standard for analyzing a pre-trial detainee's Fourteenth
Amendment claim is the same as the Eighth Amendment standard."
Thomas v. Nassau County Correctional Center, 288 F. Supp.2d 333,
337 (E.D.N.Y. 2003) (internal quotations omitted).
To establish a constitutional claim of inadequate medical care,
the plaintiff must prove "deliberate indifference to [his]
serious medical needs." Estelle v. Gamble, 429 U.S. 97, 105,
50 L.Ed.2d 251, 97 S.Ct. 285 (1976). There is a two-pronged test
in determining "deliberate indifference" that includes both an
objective and subjective component. Id.; see also Wright v.
Schelker, No. 01 Civ. 2646, 2003 U.S. Dist. LEXIS 23134, at *12
(S.D.N.Y. Oct. 27, 2003). First, the physical injury must have
been "sufficiently serious," meaning that it "may produce death,
degeneration, or extreme pain." Hathaway v. Coughlin,
37 F.3d 63, 66 (2d Cir. 1994) (internal quotations and citations
omitted). Second, the defendant's failure to issue proper care
must have "resulted from a sufficiently culpable state of mind."
Wright, 2003 U.S. Dist. LEXIS 23134, at *12.
Here, the plaintiff's injuries, namely a sprained back and neck
coupled with pain in the left testicle, do not constitute a
serious medical condition. Helling v. McKinney, 509 U.S. 25,
33, 125 L.Ed.2d 22, 113 S.Ct. 2475 (1993) (A serious medical
condition includes not only conditions affecting the plaintiff's
current health problems, but also those that are "very likely to
cause serious illness and needless suffering" in the ensuing
weeks, months or year); see also see also Liscop v. Warren,
901 F.2d 274, 277 (2d Cir. 1990) (condition must be life-threatening
Furthermore, the plaintiff fails to allege that Dr. Neal's
treatment of his injury constituted a conscious disregard of his
medical condition. The plaintiff indicates that he was given
x-rays, Cat-Scans, an injection of medicine to loosen his stiff
neck and back and pain medication three times per day. The
plaintiff also states that he is "constantly going to sick call."
Compl. ¶ IV. The Court notes that even if the plaintiff could
prove wrongdoing by Dr. Neal, medical malpractice does not
translate to a constitutional violation simply because the
injured party is a prisoner. See Estelle, 429 U.S. at 106.
Rather, the "question whether an [x]-ray or additional
diagnostic techniques or forms of treatment is indicated is a
classic example of a matter for medical judgment. A medical
decision not to order an [x]-ray, or like measures does not
represent cruel and unusual punishment. At most it is medical
malpractice. . . ." Estelle, 429 U.S. at 107.
Accordingly, the because the plaintiff fails to state a claim
against Dr. Neal, the Court sua sponte dismisses the claims
against Dr. Neal. See PLRA § 1997e(c) (stating that the Court
may, on its own motion, dismiss any action brought by a prisoner
with regards to prison conditions without first requiring the
exhaustion of administrative remedies if the complaint fails to
state a claim upon which relief can be granted).
E. State Law Negligence Claim
Because the federal claims have been dismissed, the Court
declines to exercise supplemental jurisdiction over the
plaintiff's state law claims. See 28 U.S.C. § 1367(c)(3) (stating
that the Court may decline to exercise supplemental jurisdiction
if the Court has dismissed all claims over which it had original
jurisdiction); see also Arroyo v. City of New York, et al., No.
99 Civ. 1458, 2003 WL 22211500, at * 3 (Sept. 25, 2003)
(citing United Mine Workers v. Gibbs, 383 U.S. 715, 726,
16 L.Ed.2d 218, 86 S.Ct. 1130 (1966). Accordingly, these claims are
dismissed without prejudice.
F. Leave to Amend
Although the Court would generally grant the plaintiff leave to
replead, it is beyond doubt that the plaintiff will not be able
to state facts to support a viable claim under federal law,
because (1) failure to remedy a wet shower area with mats does
not rise to the level of a constitutional violation and (2) a
sprained back, neck, and pains in the testicular region does not
rise to the level of a sufficiently serious injury. See Pangburn
v. Culbertson, 200 F.3d 65, 70-71 (2d Cir. 1999) ("Futility is a
valid reason for denying a motion to amend . . . where it is
beyond doubt that the plaintiff can prove no set of facts in
support of his amended claims.") (internal quotations and
citation omitted). Accordingly, the complaint is dismissed in its
entirety with prejudice.
Based upon the foregoing, it is hereby
ORDERED, that the motion by Reilly to dismiss all of the
claims is GRANTED; and it is further
ORDERED, that all of the federal claims against Reilly are
dismissed with prejudice; and it is further
ORDERED, that the state law claims against Reilly are
dismissed without prejudice; and it is further
ORDERED, that the Court sua sponte dismisses all of the
federal claims against Dr. Neal with prejudice; and it is further
ORDERED, that the Court sua sponte dismisses all of the
state law claims against Dr. Neal without prejudice; and it is
ORDERED, that the Clerk of the Court is directed to close
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