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Randy Suggs Morrissette v. A.M.K.C. Warden Cripps; C/O Hutchinson #17243

September 14, 2011

RANDY SUGGS MORRISSETTE, PLAINTIFF,
v.
A.M.K.C. WARDEN CRIPPS; C/O HUTCHINSON #17243; C/O FREEMANTLE #11386,
DEFENDANT.



The opinion of the court was delivered by: John G. Koeltl, District Judge:

MEMORANDUM OPINION AND ORDER

The plaintiff filed a pro se complaint alleging a claim under 42 U.S.C. § 1983 for failure to be placed in adequate prison housing within a twenty-four hour period in violation of the Eighth Amendment. He listed as defendants Anna M. Cross Center ("AMKC") Warden Cripps, Corrections Officer ("C/O") Hutchinson and C/O Freemantle. The defendants have moved to dismiss the complaint pursuant to Fed R. Civ. P. 12 (b)(6). The plaintiff was given extended time to respond to the motion but failed to do so.

I.

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court's function on a motion to dismiss is " not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). While the Court should construe the facial allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions." Id.

When faced with a pro se complaint, the Court must "construe [the] complaint liberally and interpret it to raise the strongest arguments that it suggests." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (brackets and internal quotation marks omitted). "Even in a pro se case, however, . . . threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

(internal quotation marks omitted). Thus, although the Court is "obligated to draw the most favorable inferences" that the complaint supports, it "cannot invent factual allegations that [the plaintiff] has not pled." Id.; see also Johnson v. Westchester Co. Dep't of Correction Medical Dep't, No. 10 Civ. 6309, 2011 WL 2946168(S.D.N.Y. July 19, 2011).

II.

The following allegations are assumed to be true for the purposes of this motion.

The plaintiff arrived at the AMKC on August 26, 2010. Compl. at 3. He alleges that he was held in the AMKC clinical area for over seventy-two hours, despite having been told and having read on the facility wall that he would be housed within twenty-four hours*fn1 . Id. The complaint indicates that, due to the defendants' "neglecting to house [him]," he experienced severe back and neck pain from sleeping on the floor and in a chair, and was potentially exposed to hepatitis from having to share a water cup with other inmates. Id.

III.

The defendants moved to dismiss pursuant to Federal Rule of Procedure 12(b)(6). They argued that the plaintiff (a) failed to allege the personal involvement of any of the defendants; (b) failed to plead facts that rise to the level of a Constitutional violation; (c) that the individual defendants are entitled to qualified immunity; and (d) that the plaintiff has not pled a basis for municipal liability.

A.

The defendants argue that the plaintiff failed to allege personal involvement on the part of the three individual defendants. "It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Farrel v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)(quoting Wright v. Smith, 21 F.3d 496, 501(2d Cir. 1994)). Where the officer is a supervisor, at a minimum, "liability in a § 1983 action depends on a showing of some personal responsibility, and cannot rest on respondeat superior." Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003); see also Iqbal, 129 S.Ct. at 1948; Solar v. Annetts, 707 F. Supp. 2d 437, 441 (S.D.N.Y. 2010). Beyond direct action by the state official, there is considerable disagreement in the Second Circuit as to how a plaintiff may sufficiently demonstrate personal involvement of a supervisor. Compare Qasem v. Toro, 737 F. Supp. 2d 147, 150-52 (S.D.N.Y. 2010)(finding that "the five [Colon v. Coughlin, 58 F.3d 865, 873(2d Cir. 1995)] categories supporting personal liability of supervisors still apply as long as they are consistent with the requirements applicable to the particular constitutional provision alleged to have been violated."), with Bellamy v. Mount Vernon Hosp., No. 07 Civ. 1801, 2009 WL 1835939, at *6(S.D.N.Y. June 26, 2009)(finding that Iqbal abrogated three of the Colon categories) aff'd 387 Fed. App'x 55(2d Cir. 2010)(summary order); see also Agular v. Immigration and Customs Enforcement Division, No. 7 Civ. 8224, 2011 WL 3273160 at *9-11 (S.D.N.Y Aug. 1, 2011)(noting split of opinion); Belleza v. Holland, 730 F. Supp. 2d 311, 317 n. 1(S.D.N.Y. 2010)(same)*fn2 . It is unnecessary, however, to explore the outer reaches of supervisor liability because the complaint fails to allege any supervisor involvement. See Schoon v. Berlin, No. 07 Civ. 2900, 2011 WL 1085274, at *4 (S.D.N.Y. Mar. 23, 2011)

Aside from naming Warden Cripps and the two C/O's as defendants, the complaint is devoid of any mention of the three with respect to any of the allegations. The complaint alleges only that the plaintiff read and was told that he would be housed within twenty-four hours, yet had to wait at least seventy-two hours before he was housed. Merely stating that the defendants "neglect[ed] ...


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