United States District Court, E.D. New York
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
MEMORANDUM AND ORDER
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) 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
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
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, 2004 WL 2202638 (W.D.N.Y. 2004) (dismissing
pre-trial detainee's Fifth Amendment claims against county law
Plaintiff has also alleged a violation of the Ninth Amendment.
The Ninth Amendment, which provides no additional substantive
protections not found elsewhere in the law, has been held to be
inapplicable in the context of a § 1983 suit. See, e.g.,
Rini v. Zwirn, 886 F.Supp. 270, 289-290 (E.D.N.Y. 1995)
(collecting cases). Moreover, it has not been incorporated by the
Fourteenth Amendment to non-federal actors. See Id.
B. Eighth Amendment
The Eighth Amendment protects prisoners from "cruel and unusual
punishment" in the form of "unnecessary and wanton infliction of
pain" at the hands of prison officials. Wilson v. Seiter,
501 U.S. 294, 297 (1991); Estelle v. Gamble, 429 U.S. 97, 104
(1976). This protection includes an inmate's right to be free
from conditions of confinement that impose an excessive risk to
the inmate's health or safety. See Farmer v. Brennan,
511 U.S. 825, 837 (1994); Hathaway v. Coughlin, 37 F.3d 63, 66 (2d
Cir. 1994). The analysis of an Eighth Amendment violation
encompasses an objective standard, that the deprivation is
objectively sufficiently serious such that the plaintiff was
denied the minimal civilized measure of life's necessities, and a
subjective standard, that the defendant official possessed a
sufficiently culpable state of mind associated with the
unnecessary and wanton infliction of pain. See Farmer,
511 U.S. at 834. As to the objective standard, "to prevail on a claim
based on the conditions of his confinement, a prisoner must show
extreme deprivations, because routine discomfort is part of the
penalty that criminal offenders pay for their offenses against
society." Sims v. Artuz, 230 F.3d 14, 21 (2d Cir. 2000) (citing Hudson v. McMillan, 503 U.S. 1 at 8 (1992)).
See also, Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999)
("Because society does not expect or intend prison conditions to
be comfortable, only extreme deprivations are sufficient to
sustain a `conditions-of-confinement' claim.").
In this case, defendant posits two distinct Eighth Amendment
violations; first, against the instruction to use the condemned
bathroom, and second, against the delay in obtaining medical
1. the flooded bathroom
Defendants challenge whether the alleged "condemned bathroom,
which should have been closed because of flooding" can be
considered an objectively serious enough risk of harm to support
an Eighth Amendment violation. Courts have regularly held that a
wet or slippery floor does not pose an objectively excessive risk
to prisoners. See, e.g., Davis v. Reilly,
324 F.Supp.2d 361, 367 (E.D.N.Y. 2004) (failure to provide shower mats does not
rise to level of constitutional violation); Eley v. Kearney,
2005 WL 1026718 (slip op.) (D.Del. 2005) (classifying
"accumulated slippery substances" as "indadvertent or negligent"
rather than "obdurate and wanton"); Hill v. Central Reception
Assignment Facility, 2005 WL 2491517 (slip op.) (D.N.J.,2005)
("water problem" leading to slip and fall cannot satisfy
objective risk requirement); Wehrhahn v. Frank, 2004 WL 2110755
(W.D.Wis. 2004) (failure to put up a "slippery when wet" sign
insufficient grounds for stating Eighth Amendment claim). The
instruction to use a bathroom that is wet, or even flooded, does
not inherently constitute an excessively serious risk to
substantiate an Eighth Amendment violation, which is
fact-specific, "contextual and responsive to contemporary
standards of decency." Hudson v. McMillian, 503 U.S. 1 (1992).
The plaintiff has not pleaded facts from which one could infer
that the flooded bathroom posed an excessively serious risk to him; nor does the
conclusory statement that C.O. Doe "knew that plaintiff might
injure himself" transform a wet floor into anything more than a
Even if the bathroom constituted such an objective risk to him,
however, plaintiff must allege facts that, if proved, could give
rise to an inference of deliberate indifference on the part of
C.O. Doe, who allegedly instructed him to use the flooded
bathroom. See Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir.
2001) (applying deliberate indifference standard in case
involving allegations that inmate was exposed to unsanitary
conditions and prolonged cold); Blissett v. Coughlin,
66 F.3d 531, 536-37 (2d Cir. 1995) (applying deliberate indifference
standard in case involving allegations by inmate that he was kept
for several days in a dark unsanitary observation cell, without
any personal amenities).
The complaint alleges that C.O. Doe acted with "deliberate
indifference" to plaintiff's safety "by instructing [him] to use
said bathroom knowing full well of the likelihood that [he] might
injure himself." (¶ 26). However, in the next paragraph,
plaintiff equates deliberate indifference with negligence:
"[Defendants] negligently forced [plaintiff] to use a condemned
bathroom and negligently failed to restrict access to the
condemned bathroom and negligently failed to follow department
guidelines . . . Corrections negligently failed to guarantee that
Plaintiff Maurice Sylla's safety and wellbeing [sic] would be
safeguarded." (¶ 27). Negligence cannot provide the requisite
basis on which to sustain an Eighth Amendment violation of
deliberate indifference. See Blyden, 186 F.3d at 262 ("This
standard requires that only the deliberate infliction of
punishment, and not an ordinary lack of due care for prisoner
interests or safety, leads to liability.").
While the conclusory legal allegation of "deliberate
indifference" is intoned in the complaint, the plaintiff has alleged nothing more than a
"slip-and-fall" accident on a wet bathroom floor.*fn2
Because the slip-and-fall allegations do not meet either the
objective or subjective standards defining an Eighth Amendment
violation, a Section 1983 claim on this basis cannot survive a
motion to dismiss.
2. the right to medical treatment
Medical indifference claims comprise a subset of Eighth
Amendment prison conditions litigation. The Second Circuit has
summarized the law in Morales v. Mackalm:
To state an Eighth Amendment claim for medical
indifference, [claimant] must first allege a
sufficiently serious deprivation that is, a condition
of urgency, one that may produce death, degeneration,
or extreme pain. Next, he must show that the
defendant had a sufficiently culpable frame of mind,
which is defined as more than negligence, but less
than conduct undertaken for the very purpose of
causing harm. This state of mind requires that the
prison employee know facts from which the inference
could be drawn that a substantial risk of serious
harm exists, and that he, in fact, draw that
inference. The serious medical deprivation and state
of mind tests apply both to delayed or denied access
claims and to inadequate medical care claims.
278 F.3d 126
, 132 (2d Cir. 2002) (internal citations omitted).
Plaintiff alleges only that he "requested medical care
immediately but was forced to wait until four weeks before
receiving medical care." (¶ 28). This allegation does not support
either an inference that "the failure to treat [his] condition
could [have resulted] in further significant injury or the
unnecessary and wanton infliction of pain," Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998), or "that prison
officials intentionally denied or delayed access to medical care." Pappanikolaou v. New York City, 2005 WL 1661649
(E.D.N.Y. 2005).*fn3 As to the former, plaintiff has not
pleaded any facts to suggest "a condition of urgency" existed
requiring immediate attention from a doctor. Morales,
278 F.3d 126, 132 (2d Cir. 2002). In fact, he has not pleaded any facts at
all about his injuries resulting from the slip and fall; there is
simply no basis on which the Court can infer an objectively
serious medical condition. Compare Hylton v. Federal Bureau of
Prisons, 2002 WL 720605 (E.D.N.Y. 2002) (delay in repair of
cracked tooth resulting from slip and fall in shower
insufficiently serious condition) with Johnson v. Wright,
234 F.Supp.2d 352, 360 (S.D.N.Y. 2002) (inadequate treatment of
Hepatitis C sufficiently serious condition). As to the latter,
plaintiff has not alleged that any individual officer "actually
wish[ed] him harm, or at least, was totally unconcerned with his
welfare." Hathaway, 37 F.3d at 69. He has only alleged that he
was forced to wait for four weeks to see a doctor, an allegation
which falls far short of the allegations required by Hathaway
Because plaintiff has fulfilled neither the objective nor
subjective requirements of an Eighth Amendment claim with respect
to the alleged delay in receiving medical treatment, the § 1983
claims based on an Eighth Amendment violation of medical
indifference must be dismissed.
C. Fourteenth Amendment Claims
Plaintiff alleges a violation of the Fourteenth Amendment based
on the claim that the actions of the officials unlawfully
deprived him of his liberty interest in freedom from bodily
injury. To the extent that the claim is predicated upon the negligent
acts of prison officials, application of the Due Process Clause
has been squarely rejected by the Supreme Court. See Daniels
v. Williams, 474 U.S. 327, 328 (1986) ("the Due Process Clause
is simply not implicated by a negligent act of an official
causing unintended loss of or injury to life, liberty, or
property." (emphasis in original)).
While it is true that deliberate indifference by prison
officials may implicate the Fourteenth Amendment in some
circumstances, see, e.g., Snider v. Dylag, 188 F.3d 51, 54
(2d Cir. 1999) (officer allegedly declared "open season" on an
inmate, resulting in his assault by other prisoners), the Court
is cautioned against the automatic creation of due-process
deliberate indifference claims. See County of Sacramento v.
Lewis, 523 U.S. 833, 849-851 (1998). That teaching is
particularly applicable here, and the claim will be dismissed.
III. Plaintiff's Claims for § 1983 Municipal Liability
To hold this municipality liable here, plaintiff must plead and
prove three elements: "(1) an official policy or custom that (2)
causes the plaintiff to be subjected to (3) a denial of a
constitutional right." Zahra v. Town of Southold, 48 F.3d 674,
685 (2d Cir. 1995). Because plaintiff has failed to state a claim
of a constitutional violation which can survive a motion to
dismiss, the allegation of municipal liability must fail.
However, even if he could state a constitutional violation on
the basis of C.O. Doe's conduct, in order to state a claim for
municipal liability under § 1983, plaintiff must allege that
"through its deliberate conduct, the municipality was the
"moving force" behind the injury alleged." Board of County
Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 404
(1997) (emphasis in original). See also, City of Canton v.
Harris, 489 U.S. 378, 389 (1989); Pembaur v. City of
Cincinnati, 475 U.S. 469, 480-81 (1986). This requirement is
designed "to distinguish acts of the municipality from acts of its employees, in order
that municipal liability be limited to conduct for which the
municipality is actually responsible." Dangler v. New York City
Off Track Betting Corp., 193 F.3d 130, 142 (2d Cir. 1999). The
rule of respondeat superior does not effect municipalities in
this context. See Coon v. Town of Springfield, Vt.,
404 F.3d 683, 687 (2d Cir. 2005) (citing Monell v. Dep't of Social
Servs., 436 U.S. 658, 693 (1978)). Finally, where plaintiff
alleges that liability is based on a claim of failure to train or
supervise, the plaintiff must allege that "the failure to train
amounts to deliberate indifference to the rights of those with
whom municipal employees will come into contact." City of
Canton, 489 U.S. 388.
The complaint does not identify any policy or custom of the
Department of Corrections or the City of New York which might
have been the moving force behind plaintiff's injuries; to the
contrary, the complaint alleges that C.O. Doe's instruction to
plaintiff to use the bathroom was a violation by law of policies
of the municipality and its agency. (¶ 46). In this case, the
only possible predicate for municipal liability is that the
failure to train the officer "launch[ed] a series of events that
ultimately caused a violation of federal rights." Bryan County,
supra, 520 U.S. at 405. Such a theory is subject to "rigorous
standards of culpability and causation" to ensure that the
municipality is not held responsible for the isolated act of an
employee. Id. See also City of Canton, 489 U.S. at 391-392.
The simple assertion of a failure to train does not warrant an
inference that the municipality caused the individual act of an
employee. Because an individual officer's violation of federal
rights "may have resulted from factors other than a faulty
training program," City of Canton, 489 U.S. at 390-91,
plaintiff must not only allege a failure to train, but that there
exists "a deliberate City policy of failing to train its police
officers in how to interact with [particular] individuals."
Anthony v. City of New York, 339 F.3d 129, 140 (2d Cir. 2003).
No such allegation exists here. Plaintiff has not alleged any specific
deficiencies in a training program, nor a pattern of conduct by
employees which would place the municipality on notice that it
needed to alter its training regime. See City of Canton,
489 U.S. at 390-391. In the absence of any specific allegations,
plaintiff has not pleaded facts on which the Court can infer that
the municipality bears any culpability for the officers acts, or
that the training program in any way caused plaintiff's injuries.
Having failed to allege a constitutionally infirm "policy or
custom" of the municipality, a basis on which to infer that the
municipality caused any injury to him, or a constitutional
violation which can withstand a motion to dismiss, plaintiff's
efforts to establish municipal liability must also be dismissed.
IV. Other Claims
Plaintiff has also offered claims under 42 U.S.C. § 1981 for
equal rights under the law, 42 U.S.C. § 1985 for conspiracy to
interfere with constitutional rights; 42 U.S.C. § 1986 for
failing to prevent interference with constitutional rights; and
42 U.S.C. § 1988 for attorneys fees. He has also advanced
common law claims and state constitutional concerns.
1. § 1981 claim
42 U.S.C. § 1981 provides that:
All persons within the jurisdiction of the United
States shall have the same right in every State and
Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security
of persons and property as is enjoyed by white
citizens, and shall be subject to like punishment,
pains, penalties, taxes, licenses, and exactions of
every kind, and to no other.
The purpose of this statute is to prevent racial discrimination
in the formation of contracts and "to provide appropriate
remedies for intentional discrimination and unlawful harassment
in the workplace." 42 U.S.C.A. § 1981. Plaintiff has alleged
neither a contractual dispute, nor any workplace discrimination.
At oral argument, the Court inquired with plaintiff's counsel as
to the good faith basis for a claim on the basis of § 1981, and
counsel could not provide one. There simply is no basis for this
claim, and it must be dismissed.
2. § 1985 claim
Section 1985 prohibits conspiracy to interfere with civil
rights. "In order to maintain an action under Section 1985, a
plaintiff `must provide some factual basis supporting a meeting
of the minds, such that defendants entered into an agreement,
express or tacit, to achieve the unlawful end.'" Webb v. Goord,
340 F.3d 105, 110-11 (2d Cir. 2003) (quoting Romer v.
Morgenthau, 119 F.Supp.2d 346, 363 (S.D.N.Y. 2000)). The Second
Circuit has held that a "complaint containing only conclusory,
vague, or general allegations of conspiracy to deprive a person
of constitutional rights cannot withstand a motion to dismiss."
Gyadu v. Hartford Ins. Co., 197 F.3d 590, 591 (2d Cir. 1999).
See also Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983).
Plaintiff has failed to allege a conspiracy or supply facts
supporting an inference that there was any agreement between any
of the defendants to violate his constitutional rights. This
claim must be dismissed.
3. § 1986 claim
42 U.S.C. § 1986 creates a cause of action for neglecting to
prevent an actionable conspiracy under § 1985.
42 U.S.C. § 1986. A section 1986 claim must be predicated on a viable
section 1985 claim. See Koch v. Mirza, 869 F.Supp. 1031
(W.D.N.Y. 1994) (citing Hahn v. Sargent, 523 F.2d 461, 469-70
(1st Cir. 1975), cert. denied, 425 U.S. 904 (1976)). Where
plaintiff fails to state a viable § 1985 claim, he cannot state a
claim under § 1986.
4. § 1988 claim Finally, plaintiff seeks attorneys fees pursuant to 42. U.S.C.
§ 1988. However, 42 U.S.C. § 1988 does not provide a cause of
action, but is predicated upon "an action or proceeding to
enforce a provision of sections 1981, 1981a, 1982, 1983, 1985,
42 U.S.C. § 1988(b).
5. state law claims
As for the claims based on state constitutional violations and
common law negligence, those claims must be brought in the state
court. Even if this Court wanted to exercise supplemental
jurisdiction over those claims, having dismissed all federal
claims under Rule 12(b)(6), the Court must dismiss the state law
claims as well. See Castellano v. Bd. of Trustees,
937 F.2d 752, 758 (2d Cir. 1991) ("[I]f the federal claims are dismissed
before trial, even though not insubstantial in a jurisdictional
sense, the state claims should be dismissed as well.").
The court concludes that plaintiff has failed to state
allegations on the basis of which a constitutional violation
could be inferred. Defendant's motion to dismiss is therefore
granted. The Clerk of the Court is directed to close the case.
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