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Gilmore v. Rivera

United States District Court, S.D. New York

May 14, 2014

CALVIN N. GILMORE, Plaintiff,
v.
LOUIS RIVERA, Warden AMKC, NEW YORK CITY DEPARTMENT OF CORRECTIONS, Corrections Officer GINA REYNOLDS, Badge #2399, Corizon Medical Service Doctor JAYANTA RAY, M.D., Defendants.

PRO SE, CALVIN N. GILMORE, 349-1305589, A.M.K.C. C-95, East Elmhurst, NY.

Linda Mindrutiu, Esq. NYC LAW DEPARTMENT, OFFICE OF THE CORPORATION COUNSEL (NYC), New York, NY, Attorneys for Defendants.

OPINION

ROBERT W. SWEET, District Judge.

Defendants Warden Louis Rivera ("Rivera"), New York Department of Corrections ("DOC"), Corrections Officer Gina Reynolds ("Reynolds") and Corizon Medical Service Doctor Jayanta Ray ("Ray") (collectively, the "Defendants") have moved pursuant to Federal Rules of Civil Procedure 12(b) to dismiss the Complaint (the "Complaint") of pro se plaintiff Calvin N. Gilmore ("Gilmore" or the "Plaintiff"). Based on the conclusions set forth below, Defendants' motion is granted, and Plaintiff is granted leave to replead within 20 days.

Prior Proceedings

The Complaint concerns an incident that allegedly occurred on August 2, 2013 at the Anna M. Kross Center ("AMKC") on Rikers Island, East Elmhurst. (Compl. ¶ III [D].) It alleges that "serial feces thrower" inmate Roger Thomas ("Thomas") threw feces into Plaintiff's "mouth, ear and eyes" when Reynolds opened up the slot to Thomas' cell during linen exchange. (Compl. ¶ III [DJ.) Thomas threw feces out of the slot, some of which struck Plaintiff. (Id.) According to the Complaint, DOC knew that Thomas was a "feces thrower" and Reynolds and Rivera "failed to protect" Plaintiff from Thomas' conduct. ( Id. ) The Complaint alleges injuries of "sever apprehension of the contraction of HIV, Hepatitis A, Hepatitis B, burning and singing of the eyes, fear of losing eye sight, emotion[al] and psyc[h]ological damage." (Id. ¶ III.)

According to the Complaint, Plaintiff had previously filed for an administrative remedy for the denial of medical care. ( Id. ¶ IV.) The claim was found to contain a "non-grievable" issue. (Id. ¶ IV[E] [2].) Although it is not clear, it appears as if Plaintiff has not appealed the decision. (( Id. ¶ IV[E] [3].)

The Complaint is unclear as to Plaintiff's specific claims. Construed liberally, Plaintiff seems to be alleging a "failure to protect" claim. See Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (a pro se litigant's complaint is entitled to liberal interpretation) The Complaint has requested for $1 million in punitive damages, $500, 000 in compensatory damages and $1 million for pain and suffering.

Plaintiff filed the Complaint on September 30, 2013. On December 31, 2013, Defendants filed the instant motion to dismiss. Briefing was submitted and the matter was marked fully submitted on February 26, 2014.

Defendants' Motion To Dismiss Is Granted

The Applicable Standard

On a motion to dismiss pursuant to Rule 12 (b) (6), all factual allegations in the complaint are accepted as true, and all inferences are drawn in favor of the pleader. Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims....'" Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).

To survive a motion to dismiss pursuant to Rule 12 (b) (6), "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, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Plaintiffs must allege sufficient facts to "nudge[ ] their claims across the line from conceivable to plausible." Twombly, 550 U.S. at 570. Though the Court must accept the factual allegations of a complaint as true, it is "'not bound to accept as true a legal conclusion couched as a factual allegation.'" Iqbal, 129 S.Ct. at 1950 (quoting Twombly, 550 U.S. at 555).

A pro se litigant's complaint is entitled to liberal interpretation and may be read as raising the strongest arguments that it suggests. Pabon, 459 F.3d at 248. Nevertheless, a pro se complaint must be dismissed if it fails to satisfy the plausibility standard set forth in Iqbal. Mancuso v. Hynes, 379 F.Appx. 60, 61 (2d Cir. 2010). Dismissal under Fed.R.Civ.P. (12) (b) (6)is also proper if an affirmative defense, or other bar to relief, is apparent from the face of the complaint. Mac Truong v. Tran Dinh Truong, No. 03 Civ. 3423 ...


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