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Delgado v. Dembar

United States District Court, S.D. New York

September 24, 2014

JIMMY DELGADO, Plaintiff,
v.
DEPT. DEMBAR, et al., Defendants.

OPINION & ORDER

RINE B. FORREST, District Judge.

On January 7, 2013, plaintiff Jimmy Delgado, who is representing himself pro se, filed this action alleging that he was held in the Segregated Housing Unit ("SHU") at the George R. Vierno Center ("GRVC") on Rikers Island for nine days in violation of his civil rights pursuant to 42 U.S.C. § 1983. On October 21, 2013, plaintiff filed an Amended Complaint (ECF No. 18), and on February 18, 2014, plaintiff filed a Second Amended Complaint naming Correctional Officer Andino, Captain Purdy and Assistant Deputy Warden Dunbar as defendants (ECF No. 43).

Before this Court is defendants' motion to dismiss.[1] (ECF No. 46.) Plaintiff missed his initial April 10, 2014 deadline to respond to defendants' motion. On April 18, 2014, the Court issued an Order allowing plaintiff to file a response by April 28, 2014. (ECF No. 54.) The Court also informed plaintiff that, if he failed to respond, "the Court will take the motion as unopposed." (Id.) The Docket reflects that the Court mailed a copy of the Order to plaintiff. (See ECF No. 54, indicating "Copies Sent By Chambers.") Plaintiff failed to file a response within that deadline, and he has not attempted otherwise to respond to defendants' motion.[2] The Court considers the motion unopposed but nonetheless considers its merits. See Goldberg v. Danaher , 599 F.3d 181, 183 (2d Cir. 2010) (explaining that district courts should consider the merits of a motion to dismiss rather than automatically grant the motion if a plaintiff fails to respond).

For the reasons set forth below, the Court hereby GRANTS defendants' motion to dismiss.

I. BACKGROUND

Plaintiff, who is incarcerated, alleges that on or about November 21, 2012, he was taken to the SHU at the GRVC "for no appearance [sic] reason" and held there for approximately nine days. (Second Am. Compl., Brief Statement of Facts ("Facts") ¶ 1-2.) Plaintiff included in his First Amended Complaint a report from C.O. Andino regarding the events leading to plaintiff being taken to SHU.[3] (First Am. Compl., at Attachment: Report and Notice of Infraction). C.O. Andino reports witnessing another inmate punch plaintiff in the facial area; although plaintiff did not return any punches, a "probe team" arrived and escorted the inmates to "intake." (Id.) The Notice of Infraction charged plaintiff with "assault with injury" (Charge Number 101.12) and "refuse [sic] to obey a direct order" (Charge Number 26.11). (Id.)

Plaintiff alleges that he was denied visitation rights of family members while in the SHU. (Facts ¶ 1.) He further alleges that he "was denied proper bedding and subjected to cruel and unsual [sic] punishment and illegal detention." (Id.) Plaintiff alleges he suffered injuries of "emotional and psychological" trauma as a result of his placement in the SHU. ( Id. ¶ 2-3.)

II. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a Complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, plaintiff "must provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level.'" ATSI Commc'ns, Inc. v. Shaar Fund, Ltd. , 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)). In other words, the Complaint must allege "enough facts to state a claim to relief that is plausible on its face." Twombly , 550 U.S. at 570. "A claim has 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, 678 (2009). The Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in plaintiffs favor, but does not credit "mere conclusory statements" or "[t]hreadbare recitals of the elements of a cause of action." Id.

"[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers..." Estelle v. Gamble , 429 U.S. 97, 106 (1976) (citations and internal quotation marks omitted). Accordingly, the Court "liberally construe[s] pleadings and briefs submitted by pro se litigants... reading such submissions to raise the strongest arguments they suggest." Bertin v. United States , 478 F.3d 489. 491 (2d Cir. 2007). However, even a pro se complaint must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678; see Fuentes v. Tilles , 376 F.Appx. 91, 92 (2d. Cir. 2010) (affirming district court's dismissal of pro se complaint for failure to state a claim).

In deciding an unopposed motion to dismiss, the Court is to "assume the truth of a pleading's factual allegations and test only its legal sufficiency. Thus, although a party is of course to be given a reasonable opportunity to respond to an opponent's motion, the 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." McCall v. Pataki , 232 F.3d 321, 322-23 (2d Cir. 2000) (citation omitted).

III. DISCUSSION

Based on his allegedly unconstitutional confinement in the SHU, plaintiff seeks $2, 000, 000 in compensatory damages and $30, 000 in punitive damages for violations of his Fourth, Eighth, and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983. ( Id. ¶ 4-5.)

Defendants move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss all claims. Plaintiffs claims indeed fail for several reasons: (1) plaintiff has failed to exhaust the administrative remedies, (2) he has failed to state a claim of unconstitutional conditions of confinement, (3) he has failed to allege that defendants were personally involved in any constitutional violation, ...


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