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Il Park v. the City of New York; Officer Jennifer Lemon

November 22, 2011

IL PARK,
PLAINTIFF,
v.
THE CITY OF NEW YORK; OFFICER JENNIFER LEMON, BADGE #13045; CAPTAIN JAMES MOSES, BADGE #1622; OFFICER MICHAEL TREMBONE, BADGE #12904; MICHAEL HOURIHANE, WARDEN OF ANNA M. KROSS CENTER,
DEFENDANTS.



The opinion of the court was delivered by: Denise Cote, District Judge:

OPINION AND ORDER

Plaintiff Il Park ("Park"), proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 against The City of New York ("the City"), Officer Jennifer Lemon ("Lemon"), Captain James Moses ("Moses"), Officer Michael Trembone ("Trembone") and Warden Michael Hourihane ("Hourihane"). Park alleges that the defendants violated his constitutional rights by failing to provide him with adequate medical care and failing to correct a hazardous condition at the facility where he was detained. The defendants have moved to dismiss Park's second amended complaint ("SAC"). For the following reasons, the motion to dismiss is granted.

BACKGROUND

The following facts are taken from the SAC and the documents attached to it, and assumed to be true for the purposes of this motion. LaFaro v. New York Cardiothoracic Group, PLLC, 570 F.3d 471, 475 (2d Cir. 2009). During the relevant period, Park was a detainee at the Anna M. Kross Center ("AMKC") on Rikers Island. Lemon, Moses and Trembone were correctional officers assigned to AMKC. Hourihane was the warden of AMKC.

On November 30, 2009, Park complained to medical staff at AMKC about foot pain, and he was prescribed ibuprofen for the following four days. He complained of pain in his heel on December 5 and again saw a doctor. The doctor's notes suggested that Park was suffering from plantar fasciitis and referred him to a podiatrist. On December 17, Dr. Allan Goldberg ("Goldberg"), a podiatrist, noted that Park had pain in his heels while wearing unsupportive footwear and indicated that he had plantar fasciitis. Goldberg recommended that x-rays be taken of both feet and that he be allowed to wear work boots for support.

On January 19, 2010, Dr. Richard ("Richard") completed a consultation request form which stated that Park should be allowed to wear work boots for support, but that he need not be allowed to wear personal footwear. On January 28, two consultation request forms, one signed by Goldberg and the other by Richard, also permitted him to wear work boots.

After receiving medical permission and before November 1, 2010, Park informed Lemon that he was in need of supportive footwear. Lemon informed him that he would need to wait to obtain supportive footwear.

On November 1, 2010, Park was informed by Lemon that he was allowed recreational privileges, and he decided to play basketball. At the time, Park was not wearing supportive footwear. Park alleges that the basketball court was not level and had cracks and bumps. While playing basketball, Park tripped and fell on the court. Trembone assisted Park to the facility's infirmary, where he met Moses. Park informed Moses that he required supportive footwear and related to him the events that led to his injury. As a result of the injury, Park's left ankle became swollen and discolored, and the infirmary staff sent him to an urgent care facility, where they took x-rays and issued crutches. His left foot was also put in a cast. Park used the crutches and took pain medication for a month after the injury. On December 2, Park again consulted with medical staff about his need for supportive footwear and complained about his ankle pain.

Park filed a grievance on December 14, 2010. In his grievance, he complained that his November 1 injury was the result of playing basketball on an unlevel court and with unsupportive footwear. In a response dated December 22, the grievance committee noted that the inmate had been given supportive footwear some time after the injury, and that therefore no further action was needed. On December 23, Park wrote a letter to Hourihane about his injury and informed him that he had not been issued supportive footwear before the injury. Park asked Hourihane that the condition of the basketball court be investigated, as it was a health hazard. Park alleges that "on or around" December 30, he was given supportive footwear. On March 25, Park wrote a letter to the Board of Correction about his November 1 injury, informing it that despite medical permission to wear supportive footwear, none had been issued to him prior to his injury, and that therefore he was seeking monetary damages.

PROCEDURAL HISTORY

Park filed the complaint in this action on December 21, 2010, naming the City of New York and several John Doe defendants. On February 1, 2011, Corporation Counsel for the City of New York ("Corporation Counsel") was ordered to ascertain the identity of the John Doe defendants and provide that information to the plaintiff so that he could amend his complaint.

On May 17, Park filed an amended complaint identifying some of the John Doe defendants and elaborating on his factual allegations. The defendants filed a motion to dismiss the amended complaint on June 7. In a letter dated June 22, Park requested leave to amend his complaint again to add defendants about whom he still did not have sufficient information to name, and to supplement his allegations as to the defendants' personal involvement and his hazardous conditions claim. The defendants did not object to this request. Therefore, on July 6, the defendants' first motion to dismiss was denied as moot, and Park was given an opportunity to amend his complaint by August 5. He was informed that this would be his last opportunity to amend his complaint.

Park filed the SAC on August 5. The defendants filed a motion to dismiss the SAC on August 31, and the motion was ...


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