LOWELL BAKER, Brooklyn, NY,
Pintiff Pro Se.
John Buhta, Esq., MICHAEL A. CARDOZO, CORPORATION COUNSEL OF THE CITY OF NEW YORK, New York, NY, Attorney for Defendants.
ROBERT W. SWEET, District Judge.
Defendants City of New York, Dora B. Schiro, Robert N. Cripps, Michael R. Bloomberg (s/h/a "Michael Blumberg") and Raymond Kelly (collectively, "Defendants") have moved to dismiss the complaint ("Complaint") of plaintiff Lowell Baker ("Baker" or "Plaintiff") pursuant to Fed.R.Civ.P. 12(b) (6) ("Rule 12(b)(6)") for failure to state a claim upon which relief may be granted. For the reasons set forth below, Defendants' motion is granted and the Complaint is dismissed, with leave given to replead within twenty days.
On March 16, 2012, Plaintiff filed the Complaint which has asserted a claim under 42 U.S.C. § 1983 arising from the alleged failure of prison officials to provide Plaintiff with a diet that was both sufficiently nourishing and also in conformance with necessities of Plaintiff's medical condition and religious dietary requirements. See Compl. at 4-9.
On March 8, 2013, Defendants moved to dismiss the Complaint pursuant to Rule 12(b)(6) for failure to state a claim. The motion was taken on submission on April 17, 2013.
At the time of the events relevant to the Complaint, Plaintiff was a pre-trial detainee in the custody of the New York City Department of Correction ("DOC") at the Anna M, Kross Center ("AMKC") at Rikers Island. Compl. at 2.
As a child, Plaintiff was diagnosed with a "critical intestinal, gastric condition." Compl. at 5. This condition caused "colon inflation followed by ulcers" and necessitated surgery to treat an "epigastic hernia." Id . Subsequent to that procedure, Plaintiff was placed on "the most extreme vegan diet, " and has since then continued to "embrace [some] form of vegan diet, " by abstaining from eating "all and any kind of meat and meat byproduct, dairy, process[ed] food, artificial sweets and sweetener, alcohol, synthetic food, too much fruit high in acid, white starch... etc[...] [.]" Id . If Plaintiff's gastrointestinal condition is ignored, it "can and will result in [his] condition reoccurring and even worsening." Id.
Plaintiff is a member of a religion that he alternatively identifies as "Yah-Wehons, " "Hebrew Adventist, " and "Jewish Adventist." Id. at 4, 14-15. Plaintiff's religious beliefs require him to "live a life of meatless consumption for the promotion of health and well being." Id. at 3.
Consonant with Plaintiff's medical and religious needs, during his incarceration at AMKC Plaintiff received a modified, meatless diet. Id. at 7. He was served kidney beans as "protein substitute for meat, " as well as vegetables, soy milk, cereal, and bread as part of his daily meals. Id. at 7-8. Additionally, Plaintiff was able to consume ramen noodle soup obtained from the prison commissary. Id. at 8. In one instance, however, Plaintiff was served mashed potatoes that contained milk, which he has trouble digesting due to his medical condition, and as a result became "ill." Id. at 7. Moreover, Plaintiff has alleged that the beans he received contained certain "toxins" that were harmful to his medical condition. Id. at 8. Consequently, Plaintiff often declined to eat some of the food he was served, see Id. at 5, and as a result, often did not consume sufficient food to meet his daily required caloric intake. Id. at 8.
During his incarceration, Plaintiff filed a grievance regarding his diet, and was subsequently visited by the "kitchen administrative staff." Id. at 10, 14. When this visit did not resolve the issues regarding Plaintiff's diet, Plaintiff sent letters to defendants Cripps and Schiro. See Id. at 11, 15, 17. In response, Plaintiff received a letter from Maggie Peck, DOC's Director of Constituent Services, advising Plaintiff to utilize AMKC's Inmate Grievance Resolution Program. See Id. at 20.
Plaintiff has alleged that, as a result of his insufficient diet, experienced symptoms such as "low vision, dizziness, "constant and very sharp head pain, " "exhaustion and weryness [sic]" and weight loss. Id. at 3, 9. Plaintiff has sought $2, 000, 000 in damages for, inter alia, "caloeric intake depravation [sic], " as well as "an order ensuring proper and [adequate] meal ...