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Eric J. Lesane v. City of New York

November 3, 2011

ERIC J. LESANE, PLAINTIFF,
v.
CITY OF NEW YORK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Harold Baer, Jr., United States District Judge:

OPINION AND ORDER

By this Order, the Court decides Defendants' Motion to Dismiss. Plaintiff filed his Complaint on March 22, 2011. On September 19, 2011, Defendants moved, unopposed, to dismiss the Complaint. For the reasons set forth below, Defendants' Motion to Dismiss is granted.

BACKGROUND

Plaintiff, appearing pro se, is a pre-trial detainee in the custody of the City of New York Department of Correction ("DOC"), incarcerated at all times relevant to this litigation at Otis Bantum Correctional Center ("O.B.C.C.") on Rikers Island. Plaintiff brings this action, pursuant to 42 U.S.C. § 1983, alleging inadequate conditions of confinement at O.B.C.C. Plaintiff's allegations include unfair visitation policies, unsanitary food service, inadequate hygiene procedures and difficulty accessing recreation. Plaintiff also alleges that he was denied medical attention on one occasion and that he was strip searched before and after contact visits.

LEGAL STANDARD

Plaintiff's failure to oppose Defendants' Motion to Dismiss, by itself, does not militate dismissal of the Complaint. See McCall v. Pataki, 232 F.3d 321, 322 (2d Cir. 2000); see also Maggette v. Dalsheim, 709 F.2d 800, 802 (2d Cir. 1983). "If a complaint is sufficient to state a claim on which relief can be granted, the plaintiff's failure to respond to a Rule 12(b)(6) motion does not warrant dismissal." McCall, 232 F.3d at 322-23. In deciding an unopposed motion to dismiss, the Court must draw all inferences of fact in favor of the non-moving party. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006). In addition, the Court affords a liberal construction to pro se pleadings. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d. Cir. 2006) (citations omitted).

DISCUSSION

A. Visitation Policies

The Plaintiff lacks standing to assert the claims concerning unfair visitation policies because he has failed to demonstrate a sufficient connection to and harm from the Defendants' alleged conduct. The right to initiate a lawsuit brings with it a threshold requirement that prevents a plaintiff from bringing claims before a court on behalf of persons not party to the litigation. See Warth v. Seldin, 422 U.S. 490, 498-99 (1975) ("whether the plaintiff has made a 'case or controversy' . . . within the meaning of Article III . . . is the threshold question in every federal case, determining the power of the court to entertain suit"); Arizonians for Official English v. Arizona, 520 U.S. 43, 64 (1997). The burden of establishing the right to initiate a lawsuit rests with the plaintiff. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

To demonstrate the right to initiate a lawsuit, Plaintiff must show that (i) he has personally suffered some actual or threatened injury as a result of Defendants' alleged illegal conduct; (ii) the injury is fairly traceable to Defendants' conduct; and (iii) the injury is likely to be redressed by the requested relief. Valley Forge Christian College v. American United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982); Pashaian v. Eccelston Properties, Ltd., 88 F.3d 77, 82 (2d Cir. 1996). Whatever personal interest Plaintiff may have in challenging the Defendants' visitation policies, he does not allege that he suffered injury as a result of their alleged actions. Accordingly, Plaintiff fails to demonstrate that he is entitled to have the Court address his claims regarding visits and how visitors are treated by Defendants.

B. Inadequate Medical Care

Plaintiff's allegation that he was denied medical attention on one occasion does not rise to the level of a constitutional violation. In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court held that "deliberate indifference to serious medical needs constitutes the 'unnecessary and wanton infliction of pain,' proscribed by the Eighth Amendment." Id. at 104. At a minimum, there must be "at least some allegation of a conscious or callous indifference to a prisoner's rights." Zaire v. Dalsheim, 698 F. Supp. 57, 59 (S.D.N.Y. 1988) (citations omitted); see also Gill v. Mooney, 824 F.2d 192, 195-96 (2d Cir. 1987). "Deliberate indifference" must be evidenced by proof that a defendant intentionally denied, delayed access to or interfered with prescribed treatment. Id. at 104-06. See also Hathaway v. Coughlin, 37 F.2d 63, 66-68 (2d Cir. 1994); Gill, 824 F.2d at 195-96; Collins v. Ward, 652 F. Supp. 500, 510 (S.D.N.Y. 1987); Williams v. Coughlin, 650 F. Supp. 955, 957 (S.D.N.Y. 1987).

Plaintiff's allegation that he was denied medical care on one occasion fails to demonstrate that prison officials were deliberately indifferent to his medical needs. Plaintiff fails to allege sufficient facts demonstrating a delay or denial of care to a serious medical need and any ...


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