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December 8, 2005.

Maurice SYLLA, Plaintiff,
THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF CORRECTIONS and C.O. DOE, the last name being fictitious and currently unknown, Defendant.

The opinion of the court was delivered by: LEO GLASSER, Senior District Judge



The complaint in this case arises out of an alleged "slip and fall" which took place in a flooded bathroom at Riker's Island Correctional Facility asserts three claims: (1.) violations of civil rights guaranteed by the Federal Constitution under 42 U.S.C. §§ 1981, 1983, 1985, and 1986, (2.) state constitutional claims and (3.) common law negligence.


  As an initial matter, subject matter jurisdiction is based on the federal claims pleaded by the plaintiff. 28 U.S.C. § 1331. However, the complaint acknowledges that Riker's Island Correctional Facility is located in the Bronx, and neither alleges action which took place in the Eastern District of New York, nor specifies defendant's connection to the Eastern District. This would suggest that the Southern District of New York might provide a more appropriate venue for this litigation. Nonetheless, in argument, plaintiff's counsel stated that his client lives in Brooklyn. As such, jurisdiction and venue are found to be proper. BACKGROUND

  The pleaded facts are construed in the light most favorable to plaintiff, as is required on a motion to dismiss. Maurice Sylla ("Sylla" or "plaintiff"), who was incarcerated at the time of the incident, alleges that on or around December 28, 2003, he "slipped and fell in a condemned bathroom, which should have been closed because of flooding." (¶ 19).*fn1 He alleges that defendant C.O. Doe knew that the bathroom was flooded and that plaintiff might injure himself, but that he instructed him to use it nonetheless. (¶ 26).

  Plaintiff asserts that he requested medical attention immediately, but was forced to wait for four weeks before he was treated. (¶ 28). As a result of the incident, plaintiff asserts that he suffered prolonged injuries, including severe spine, back, neck, and cervical collar injuries, as well as psychological trauma, including mental anguish, acute emotional distress, fear, and anxiety. (¶¶ 39, 49). He also alleges that Defendants City of New York ("City") and City of New York Department of Corrections ("Corrections") failed to provide training "that would enable [Defendant Doe] to detect potentially dangerous conditions . . . [and to] follow standard prison procedures/guidelines in a responsible manner." (¶ 46).


  Plaintiff claims to state causes of action under Sections 1981, 1983, 1985, and 1986 of Title 42 of the United States Code, specifying constitutional violations of the Fifth, Eighth, Ninth, and Fourteenth Amendments. Additionally, he alleges common law claims for premises liability and negligent hiring and supervision. The complaint also makes reference to violations of the state constitution, without specificity. Defendants move to dismiss the claim under Rule 12(b)(6).

  Rule 12(b)(6) of the Federal Rules of Civil Procedure allows dismissal for "failure to state a claim upon which relief can be granted." Fed.R.Civ.Proc. 12(b)(6). In order to survive dismissal, a plaintiff must assert a cognizable claim and allege facts that, if true, would support such a claim. See Boddie v. Schneider, 105 F.3d 857, 860 (2d Cir. 1997). A court must not dismiss a complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). When deciding a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), a court takes the facts as alleged in the complaint to be true, and must draw all reasonable inferences from those facts in favor of the plaintiff. See Chosen Intern., Inc. v. Chrisha Creations, 413 F.3d 324, 327 (2d Cir. 2005). Nevertheless, "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002).

  I. Admissibility of Materials Submitted in Opposition to Defendant's Motion to Dismiss.

  At the outset, the Court considered the materials submitted by plaintiff in opposition to defendant's motion to dismiss. Plaintiff has submitted an affidavit by which he makes additional representations about the alleged events which gave rise to his claims. Plaintiff's counsel has also submitted an Affirmation in Opposition, in which he refers to a number of case-related details of which he has no direct personal knowledge, and upon which he relies as grounds for arguing that the motion to dismiss should not be granted. This affirmation will be disregarded. See Fed.R.Civ.Proc. 56(e). When matters outside of the pleadings are presented to a court in response to a motion to dismiss, the court may proceed in one of two ways: It may rule only on the motion to dismiss, limiting itself "to the allegations of the complaint and any documents attached to or incorporated by reference in the complaint," Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999), or, the court may convert the motion to one for summary judgment, under Fed.R.Civ.Proc. 56, in which case "all parties shall be given reasonable opportunity to present all material made pertinent" by the conversion. Fed.R Civ.Proc. 12(b). See also, e.g., Hayden, 180 F.3d 42, 54 (2d Cir. 1999). The Court addresses the motion as only a motion to dismiss, and the facts stated above reflect only the facts pleaded in the complaint. The additional materials from plaintiff and plaintiff's counsel have been excluded.

  II. Plaintiff's § 1983 Claims against C.O. Doe

  In order to state a claim under 42 U.S.C. § 1983 against C.O. Doe, plaintiff must state facts which warrant an inference that a constitutional right was violated, and indicate that the officer was personally involved in the deprivation that right. See, e.g., Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987). Plaintiff alleges violations of the Fifth, Eighth, Ninth, and Fourteenth Amendments. Because plaintiff has failed to state facts on which an inference might be made that a constitutional right was violated, the § 1983 claim against C.O. Doe must be dismissed.

  A. Fifth Amendment and Ninth Amendment Claims

  Plaintiff has alleged a general violation of the Fifth Amendment, presumably those provisions that prohibit the deprivation of life, liberty, or property without due process of law. The Fifth Amendment is applicable only to the federal government. Public Utilities Commission of District of Columbia v. Pollak, 343 U.S. 451, 461 (U.S. 1952) Where, as here, defendants are municipal, rather than federal entities and officials, a due process claim under the Fifth Amendment must be dismissed. See Dye v. Virts, ...

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