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Irwin Johnson v. Ms. Rose Agros

August 20, 2012


The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:


Plaintiff Irwin Johnson ("Johnson") brings this 42 U.S.C. § 1983 action against five employees of the New York City Department of Corrections ("DOC"), alleging that the unsafe conditions under which he was incarcerated caused him to fall and injure himself, and that his rights under the Eighth and Fourteenth Amendments were thereby violated. Johnson, at the time, was imprisoned in the Manhattan Detention Complex ("MDC"). He claims that, while working near a shower area, he fell on his back because his prison-issue slippers were inadequate for the work he was doing, and because there was no mat outside the shower area. Defendants, through the City of New York, move to dismiss the Amended Complaint with prejudice for failure to state a claim. Because Johnson has failed to exhaust the administrative remedies available to him, the Court dismisses the Amended Complaint without prejudice.

I.Factual Background*fn1

On July 28, 2010, at about 10:30 p.m., Johnson was completing a work detail assignment at the MDC. Compl. ¶¶ II.C, II.D.1. He was assigned to clean the showers; having completed that task, he went to return the cleaning supplies. Id. ¶ II.D.2. While doing so, Johnson slipped and fell onto his back. Id. ¶ II.D.3. Johnson claims the fall was caused both by the "Chinese slippers" he was issued upon entering the MDC and the lack of a safety mat outside the shower area. Id. ¶¶ II.D.1, 3. Motasir Miah, a correction officer on duty at the time, observed the fall, and notified the prison medical staff. Id. ¶ II.D.4. The medical staff, after examining Johnson, called for an ambulance, and a group of emergency medical technicians arrived to take him to a medical facility. Id. ¶¶ II.D.5--6. Johnson was taken to Bellevue Hospital, where he was given a CAT scan and a full body scan. Id. ¶ II.D.7. A doctor notified him that, as a result of the fall, Johnson was having muscle spasms and inflammation in his lower back. Id. ¶ II.D.8. Upon discharge, Johnson was issued a cane to help him walk and was "very strongly medicated." Id.

¶¶ II.D.9, III. He is still undergoing treatment for his injuries. Id. ¶ V.

Johnson brings this action against: (1) Rose Agros, the warden of the MDC at the time of the incident; (2) Artemio Colon, the MDC's deputy warden at the time of the incident; (3) Peter Brookins, the assistant deputy warden at the time of the incident; (4) Charles Bruij, a captain working at the prison that evening; and (5) Motasir Miah, the correction officer who observed the incident. He seeks $50,000 in compensatory damages and $50,000 in nominal damages for "current and foreseeable injury" as a result of the accident, "which resulted in pain in [his] back, spine, and legs." Id. Johnson concedes that he did not file a grievance about the alleged incident. Compl. ¶ IV.D. He claims that there was no grievance procedure in the MDC; he also claims that physical injury "is not a grievable issue." Id. ¶¶ IV.B, E, F.

II.Procedural History

On October 26, 2010, Johnson brought this suit, which named two individual defendants as John Does. The DOC subsequently identified those officers as Brookins and Bruij. Johnson failed to timely serve certain individual defendants, although ultimately all defendants waived service. Johnson has also transferred facilities a number of times during this lawsuit, which slowed its progress. On February 21, 2012, Johnson signed an Amended Complaint, which was filed on February 24, 2012. On May 7, 2012, defendants moved to dismiss the Amended Complaint. Also on May 7, 2012, defendants filed an affidavit of service of the motion on defendant by mail. Johnson has not made any submission in response to defendants' motion. On July 2, 2012, the Court granted defendants' request that the Court consider the motion unopposed.

III.Legal Standard

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Accordingly, in considering a motion to dismiss, a district court "must accept as true all well-pleaded factual allegations in the complaint, and 'draw[ ] all inferences in the plaintiff's favor.'" Brown v. Kay, No. 11-cv-7304, 2012 WL 408263, at *7 (S.D.N.Y. Feb. 9, 2012) (quoting Allaire Corp. v. Okumus, 433 F.3d 248, 249--50 (2d Cir. 2006)).

Because plaintiff is proceeding pro se, the Court must construe liberally his Amended Complaint and any further pleadings, and "interpret them to raise the strongest arguments that they suggest." Cold Stone Creamery Inc. v. Gorman, 361 F. App'x 282, 286 (2d Cir. 2010) (summ. order) (internal quotation marks omitted). As a general rule, pro se complaints are held to less stringent standards than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520--21 (1972); Boykin v. KeyCorp, 521 F.3d 202, 213--14 (2d Cir. 2008). However, despite the more lenient standard, to survive a motion to dismiss, a pro se plaintiff must still plead enough facts to state a claim to relief that is plausible on its face. See Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011). A claim will only have "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, 556 U.S. 662, 663 (2009). Accordingly, dismissal of a pro se complaint is appropriate where a plaintiff has clearly failed to meet minimum pleading requirements. See Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997); Honig v. Bloomberg, No. 08-cv-541, 2008 WL 8181103, at *4 (S.D.N.Y. Dec. 8, 2008), aff'd, 334 F. App'x 452 (2d Cir. 2009).

A plaintiff's failure to oppose a 12(b)(6) motion does not by itself merit dismissal of a complaint. See Goldberg v. Danaher, 599 F.3d 181, 183--84 (2d Cir. 2010); McCall v. Pataki, 232 F.3d 321, 322--23 (2d Cir. 2000). "[T]he sufficiency of a complaint is a matter of law that the court is capable of determining based on its own reading of the pleading and knowledge of the law." Goldberg, 599 F.3d at 184 (citing McCall, 232 F.3d at 322--23). Accordingly, "[i]f 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." Id. Consequently, as with all Rule 12(b)(6) motions, in deciding an unopposed motion to dismiss, a court is to "assume the truth of a pleading's factual allegations and test only its legal sufficiency" according to the principles ordinarily applicable on a motion to dismiss. McCall, 232 F.3d at 322.


Defendants have moved to dismiss the Amended Complaint on three grounds, that: (1) Johnson has failed to exhaust his administrative remedies; (2) Johnson has failed to allege conditions that rise to the level of a constitutional violation; and (3) Johnson has not alleged that any defendant was personally involved in the accident. Because the Court finds that Johnson has failed to ...

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