The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge
On August 2, 2011, pro se Plaintiff Kiaza Loccenitt ("Plaintiff") instituted this 42 U.S.C. § 1983 action against the City of New York ("Defendant"), claiming that he suffered from a number of maladies, and fear of contracting maladies, as a result of his alleged exposure to environmental pollutants on Rikers Island.
On February 17, 2012, Defendant moved, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss Plaintiff's complaint, arguing that: (1) Plaintiff failed to exhaust his administrative remedies; (2) Plaintiff's allegations are insufficient to state a claim; (3) Plaintiff failed to allege a claim rising to the level of a constitutional violation; and (4) Plaintiff failed to establish a City policy or custom. On July 30, 2012, Magistrate Judge Henry B. Pitman, issued a Report & Recommendation ("R&R"), recommending that the Court grant Defendant's motion to dismiss.
Plaintiff did not file objections, and thus the Court reviews the R&R for clear error. Finding no clear error, the Court adopts the R&R in its entirety and dismisses Plaintiff's complaint.
Plaintiff claims that he was exposed to numerous contaminants at Rikers Island, which caused him to experience "post traumatic stress, sick building syndrome, shortness of breath, psychological and physical paranoia, back pains, headaches, stomach pain, skin rashes, & loss of hair." Plaintiff also claims he was not provided adequate medical attention for these conditions.
Plaintiff's copy cat allegations derive in large measure from an article in the New York Daily News, which reported that several Corrections Officers assigned to Rikers Island had brought a lawsuit asserting similar claims. Plaintiff's complaint is also a verbatim copy of a complaint filed in Cepeda v. Bloomberg, 11 Civ. 2914 (WHP), which was dismissed on the City's motion.
II.Magistrate Judge Pitman's R&R
A. Legal Standard "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'"Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "[T]hreadbare recitals of the elements of the cause of action, supported by mere conclusory statements, do not suffice." Id. Pleadings of a pro se plaintiff are held to a less stringent standard and should be construed liberally "to raise the strongest arguments that they suggest." Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006).
B. Plaintiff's Failure To Exhaust Administrative Remedies
The Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions . . . by a prisoner . . . until such administrative remedies as available are exhausted." 42 U.S.C. § 1997e(a). Failure to exhaust is an affirmative defense, and thus it need not be pleaded in a complaint. See Jones v. Bock, 549 U.S. 199, 212 (2007). Where the affirmative defense is apparent from the face of the complaint, however, a court may decide the exhaustion issue on a Rule 12(b)(6) motion. See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1998).
In his complaint, Plaintiff claims that he had not exhausted his administrative remedies because his claims are "non-grievable." In his opposition brief, however, he argues that he has satisfied the four-step grieving process. Since Plaintiff is proceeding pro se, Magistrate Judge Pitman liberally construed Plaintiff's new allegations in his opposition brief as amending his complaint. See Washington v. James, F.2d 1134, 1138-39 (2d Cir. 1986). Magistrate Judge Pitman thus determined that "it is not clear whether plaintiff has exhausted his administrative remedies," and recommended that the Court deny Defendant's exhaustion defense at this juncture. (R&R 9.)
C. Plaintiff's Failure To State A Claim
In Cepeda v. Bloomberg, 2012 WL 75424, at *2 (S.D.N.Y. Jan. 4, 2012), which plaintiff copied word for word, District Court Judge Pauley held that "[e]ven if [Plaintiff] exhausted his remedies, dismissal would be appropriate because the Complaint makes only conclusory allegations devoid of any facts suggesting a plausible claim." "The Daily News article is not an adequate factual basis for [Plaintiff's] claim that toxins have harmed him." Id. Moreover, plaintiff failed to plausibly allege "that ...