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Simon v. Nyc Department of Corrections

United States District Court, Second Circuit

August 29, 2013

NATHAN SIMON, Plaintiff,


JESSE M. FURMAN, District Judge.

Plaintiff Nathan Simon, proceeding pro se, brings this action pursuant to Title 42, United States Code, Section 1983, against the City of New York and two individual Defendants, alleging that they violated his constitutional rights under the Eighth and Fourteenth Amendments while he was incarcerated in a New York City Department of Correction ("DOC") facility. Defendants move to dismiss the Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion to dismiss is unopposed. For the reasons discussed below, Defendants' motion is GRANTED, and the Amended Complaint is dismissed.


The following facts, taken from the Amended Complaint, are assumed to be true for purposes of this motion. See, e.g., LaFaro v. N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009).

Plaintiff is a New York State prisoner, currently incarcerated at the Anna M. Kross Center ("AMKC") on Rikers Island, a DOC facility. (Am. Compl. at II(A) (Docket No. 21)). On October 1, 2012, Correction Officer Shirley Blow and Angela Hudson, a Patient Care Associate for a private entity that provides health and medical services to DOC inmates, came to Plaintiff's housing unit to administer HIV tests. ( Id. at II(A), II(D); Mem. in Support 1 n.1 (Docket No. 24)). Defendants Blow and Hudson called out the names of individuals to be tested and Plaintiff alleges that "[a]s these individuals were coming back into the housing area the other inmates were badgering them for their results." (Am. Compl. at II(D)). He alleges that one of the Defendants called his name, but that he did not respond because he "know[s] [his] status" and didn't want "everyone else in my business." ( Id. ). Because of his refusal to respond, the other inmates called Plaintiff names and harassed him, causing him such "mental anguish" that he contemplated suicide. ( Id. at III, II(D)). Plaintiff also alleges that he "asked to see the psychiatrist but was denied because [he] didn't explain in full detail why [he] needed to see them." ( Id. at III).

On the basis of these allegations, Plaintiff claims that Defendants violated his Fourteenth Amendment right to privacy. Liberally construed, Plaintiff's Amended Complaint arguably also includes a claim for constitutionally inadequate conditions of confinement and denial of medical treatment in violation of the Eighth Amendment. He seeks monetary compensation in the amount of $2, 000, 000.00 "for the humiliation, mental anguish and discrimination [he] endured while incarcerated." ( Id. at V).


In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g., Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009). To survive a Rule 12(b)(6) motion, however, the plaintiff must plead sufficient facts "to state a claim to relief that is plausible on its face." Bell Atl. 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). More specifically, the plaintiff must allege sufficient facts to show "more than a sheer possibility that a defendant has acted unlawfully." Id. A complaint that offers only "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Further, if the plaintiff has not "nudged [his or her] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Id. at 570.

Plaintiff here is proceeding pro se. Therefore, his submissions should be held "to less stringent standards than formal pleadings drafted by lawyers." Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks omitted); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (stating that a court is "obligated to construe a pro se complaint liberally"). Nevertheless, pro se plaintiffs are not excused from the normal rules of pleading and "dismissal under Rule 12(b)(6) is proper if the complaint lacks an allegation regarding an element necessary to obtain relief.'" Geldzahler v. N.Y. Med. Coll., 663 F.Supp.2d 379, 387 (S.D.N.Y. 2009) (quoting 2 Moore's Federal Practice § 12.34 [4][a] at 12-72.7 (2005) (alteration omitted)). Thus, the "duty to liberally construe a plaintiff's complaint [is not] the equivalent of a duty to re-write it.'" Id. (quoting 2 Moore's Federal Practice § 12.34[1][b], at 12-61 (internal quotation marks omitted)); see also, e.g., Joyner v. Greiner, 195 F.Supp.2d 500, 503 (S.D.N.Y. 2002) (dismissing action because pro se plaintiff "failed to allege facts tending to establish" that defendants violated his constitutional rights).

When, as here, a motion to dismiss is unopposed, the failure to oppose does not, by itself, justify dismissal. 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 (quoting McCall, 232 F.3d at 322-23). Consequently, as with all Rule 12(b)(6) motions, when deciding an unopposed motion to dismiss the Court must "assume the truth of a pleading's factual allegations and test only its legal sufficiency." McCall, 232 F.3d at 322.


A. Violation of the Fourteenth Amendment

Plaintiff alleges that Defendants violated his constitutional right to privacy by "call[ing] [his] name" for HIV testing. (Am. Compl. at II(D)). The United States Constitution recognizes a right to privacy, which protects "the individual interest in avoiding disclosure of personal matters." Matson v. Bd. of Educ. of City Sch. Dist. of N.Y., 631 F.3d 57, 63 (2d Cir. 2011) (citation omitted). Specifically, the Due Process Clause of the Fourteenth Amendment protects a "right to privacy [that] can be characterized as a right to confidentiality, '" which "includes the right to protection regarding information about the state of one's health." Doe v. City of N.Y., 15 F.3d 264, 267 (2d Cir. 1994). This right extends to a prisoner's HIV status. See Powell v. Schriver, 175 F.3d 107, 112 (2d Cir. 1999). The Second Circuit has explained that prisoners retain a right to privacy for medical information unless (1) that disclosure was reasonably related to legitimate penological interests or (2) the information contained within the medical records was not the type of sensitive medical information contemplated by the courts for constitutional protection. See id. at 111-13.

Here, however, Plaintiff has not alleged that any Defendant actually disclosed his HIV status or other confidential medical information. Instead, he claims that Defendants Blow and Hudson came to his housing unit to perform HIV testing and that one of them called his name, indicating that he was to be tested. (Am. Compl. at II(D)). Merely calling a prisoner's name for testing does not amount to a disclosure of that prisoner's HIV status or any other confidential medical information. Similarly, disclosure of a prisoner's refusal to take a mandatory HIV test does not violate the prisoner's right to privacy. See Hunt v. Ortiz, 84 F.Appx. 34, 35-37 (10th Cir. 2003) (holding that a prison official's disclosure to other inmates that the plaintiff had refused to take an HIV test did not violate the plaintiff's right to privacy because "[t]he refusal to take a medical test does ...

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