The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Tyrone Graham, appearing pro se, commenced this action under 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), has sued a number of DOCS employees, alleging that his constitutional rights were violated in certain respects in 2004 while plaintiff was confined at Five Points Correctional Facility ("Five Points").
Defendants have moved to dismiss some of plaintiff's claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, the motion is granted.
I. Motions to Dismiss--General Principles
On a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief may be granted, the court should grant the motion "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). In ruling on such a motion, the Court must read the plaintiff's complaint generously, "drawing all reasonable inferences from the complaint's allegations," California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, (1972), and accepting "the material facts alleged in the complaint as true." Frasier v. General Electric Co., 930 F.2d 1004, 1007 (2d Cir. 1991).
Consistent with those principles, the Court of Appeals for the Second Circuit has stated that a "complaint should not be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted '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.'" Official Committee of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 158 (2d Cir. 2003) (quoting Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998)). A court's task in ruling on a Rule 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." Ryder Energy Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984).
II. Defendants' Motion to Dismiss
Plaintiff alleges that on May 30, 2004, he slipped and fell as he was leaving the shower at Five Points, and that when he fell he hit his neck and the back of his head, causing injury. He alleges that this would not have happened but for defendants' failure to provide non-slip mats on the floor in and near the shower. He also alleges that he received inadequate medical care for his injuries. He has sued a number of individuals employed at Five Points, asserting claims under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution.
Defendants contend that plaintiff's claims relating to the slip and fall itself (as opposed to plaintiff's subsequent medical care) must be dismissed for failure to state a claim. I agree. For purposes of Eighth Amendment claims, the Supreme Court has drawn a "distinction between mere negligenceand wanton conduct ... ." Whitley v. Albers, 475 U.S. 312, 322 (1986); see also Farmer v. Brennan, 511 U.S. 825, 835 (1994) ("Eighth Amendment liability requires more than ordinary lack of due care for the prisoner's interests or safety") (internal quotes omitted). To state an Eighth Amendment claim, an inmate must allege facts showing that prison officials displayed "'deliberate indifference' to the inmates' health or safety." Hope v. Pelzer, 536 U.S. 730, 738 (2002).
Although plaintiff alleges that defendants were aware of the dangerous condition of the shower floor, and failed to rectify it, that amounts to nothing more than negligence, and is not enough to establish an Eighth Amendment claim, which requires a showing of a "wanton state of mind ... ." Davidson v. Flynn, 32 F.3d 27, 30 (2d Cir. 1994). Again, all that plaintiff has alleged is that defendants failed to exercise due care in not installing non-slip mats in the shower. That is not enough. See Walker v. Reed, 104 F.3d 156, 157-58 (8th Cir. 1997) (inmate's allegation that he "slipped and fell" because of water on the floor of his barracks bathroom, injuring his arm and shoulder, "alleges only a claim for negligence," and did not state a constitutional claim); see also Kirby v. Kentucky Correctional Psychiatric Center, 198 F.3d 246 (Table), 1999 WL 1021736 at *2 (6th Cir. Nov. 2, 1999) ("Defendants acted, at most, with mere negligence or lack of due care by failing to provide shower mats or railing"); 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).
I also find that all of plaintiff's claims against Thomas M. Poole, the Superintendent of Five Points, must be dismissed. Aside from the absence of any allegations of anything more than negligence on Poole's part, plaintiff also has not alleged that Poole was personally involved in the events giving rise to this suit.
A plaintiff asserting a § 1983 claim against a supervisory official in his individual capacity must show that the supervisor was personally involved in the alleged constitutional deprivation. Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir.2001); Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001). "[M]ere 'linkage in the prison chain of command' is insufficient to implicate a state commissioner of corrections or a prison superintendent in a § 1983 claim." Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (quoting Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985)); see also Colon v. Coughlin, 58 F.3d 865, 874 (2d Cir. 1995) ("The bare fact that [the defendant] occupies a high position in the New York prison hierarchy is insufficient to sustain [plaintiff's] claim"). Rather, personal involvement may be shown by evidence that the defendant:
(1) participated directly in the alleged constitutional violation; (2) after being informed of the violation through a report or appeal, failed to remedy the wrong; (3) created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue; (4) was grossly negligent in supervising subordinates who committed the wrongful acts; or (5) exhibited deliberate indifference to others' rights by failing to act on information indicating ...