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) 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, ...