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Cruz v. City of New York

United States District Court, S.D. New York

January 30, 2015

JUNARO VELEZ CRUZ, Plaintiff,
v.
CITY OF NEW YORK, PRISON HEALTH SERVICES, CAPTAIN FAULKS, Shield No. 1304, CORRECTION OFFICER DAWSON, Shield No. 2752, CORRECTION OFFICER JOSEPH, Shield No. 9559, P.A. DONALD MCGIBBON, MEDICAL DIRECTOR ARKADY CHERCHEVER, M.D., CAPTAIN TILLERY, Shield No. 1448, CORRECTION OFFICER CAMILLA, Shield No. 9553, ROMMEL MOULLOS, M.D., L. FAZA, M.D., CAPTAIN BERBRES, Shield No. 129, CORRECTION OFFICER PIERRE CHARLES, Shield No. 6987, WARDEN (UNNAMED), Shield No. 13351, CAPTAIN. COX, Shield No. 154, CORRECTION OFFICER HIN, Shield No. 13357, P.A.
v.
JONES, Defendants

Junaro Velez Cruz, Plaintiff, Pro se, Bridgeport, CT.

For Prison Health Services, City of New York, Defendants: Mark Galen Toews, LEAD ATTORNEY, NYC Law Department, New York, NY; Theresa Jeanine D'Andrea, LEAD ATTORNEY, New York City Law Department, New York, NY.

MEMORANDUM AND ORDER

ANALISA TORRES, United States District Judge.

Plaintiff pro se, Junaro Velez Cruz, alleges that during his incarceration at Rikers Island, Defendants, City of New York (the " City"), Prison Health Services (" PHS"), and various Department of Correction (" DOC") employees, violated his constitutional rights. Liberally construed, Plaintiff's amended complaint alleges that: (1) Correction Officer Joseph and unnamed City employees failed to protect Plaintiff from inmate assaults in violation of his Eighth Amendment rights; (2) Correction Officer Joseph and an unnamed Captain used excessive force against Plaintiff in violation of his Eighth Amendment rights; and (3) the City and PHS are liable for these violations pursuant to Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Defendants move to dismiss the amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, the motion is DENIED as to the failure to protect claim asserted against Joseph and GRANTED with prejudice in all other respects.

BACKGROUND[1]

Plaintiff filed an initial complaint on April 5, 2013, alleging claims for deliberate indifference to his medical needs, deliberate indifference to his safety, and violations of the Americans with Disabilities Act (the " ADA") against the City and PHS arising from incidents that took place in February 2012. On September 7, 2013, the City and PHS filed a motion to dismiss Plaintiff's initial complaint.

On March 4, 2014, the Court granted the motion dismissing Plaintiff's ADA claims with prejudice and dismissing the claims for deliberate indifference to Plaintiff's medical needs and deliberate indifference to his safety with leave to amend. Order 11, ECF No. 39. The Court stated that Plaintiff's amended complaint should " nam[e] any individuals who deliberately delayed, interfered with, or denied treatment of a serious medical need or who deliberately failed to protect Plaintiff from a known risk." Id. The Court also stated that, " [i]n the event Plaintiff files an amended complaint, Plaintiff is directed to produce evidence demonstrating that he has exhausted all available administrative relief as to any alleged wrongdoing." Id.

On March 17, 2014, Plaintiff filed an amended complaint, which describes four incidents during which Plaintiff was injured. Am. Compl., ECF No. 42. Each of the alleged incidents took place after the filing of the initial complaint. Id. As attachments, Plaintiff submits four DOC " injury to inmate" reports. Id. at 8-11. The upper portion of each report is filled out by a DOC official and contains a description of the incident, and the bottom portion is filled out by medical staff and contains a description of Plaintiff's injuries and recommended treatment. Id.

First, Plaintiff alleges that on August 2, 2013, Joseph repeatedly slammed Plaintiffs right arm in a slot on Plaintiff's cell door, causing injuries to his arm. Id. at 3, 8. This incident " was [d]ocumented, " and Joseph received a " summons and [c]itation." Id. at 3.

Second, Plaintiff alleges that on October 15, 2013, he was injured in a " one on one" fight with another inmate. Id. at 3, 9. Plaintiff's left tibia and right knee were injured during this altercation. Id.

Third, Plaintiff alleges that, following the August 2, 2013 incident, Joseph called Plaintiff a " snitch" in front of other inmates, which caused Plaintiff to be assaulted by another inmate on October 18, 2013. Id. at 3. During the October 18, 2013 incident, Plaintiff was hit in the head with a broomstick and received a cut to the left side of his scalp. Id. at 3, 10. Plaintiff was treated at the Bellevue Hospital emergency room and received three stitches or staples in his scalp. Id.

Fourth, Plaintiff alleges that on October 22, 2013, an unidentified Captain punched Plaintiff, causing a cut to his lip. Id. at 3, 11. According to the DOC summary of the incident, the Captain's action was taken in response to an attempt by Plaintiff to assault a member of the staff. Id. at 11. The prison medical staff reported that Plaintiff refused an icepack and received no other treatment in connection with this incident. Id.

Plaintiff alleges that he filed grievances in connection with each claim but states that " the[y] refused to answer." Id. at 4. Plaintiff asserts that " most of the time they just threw the papers in the garbage." Id. at 5. Plaintiff, however, also alleges that when he received responses to his grievances that he did not like, he appealed those decisions to the warden and the grievance appeal board but received no responses. Id. at 4-5.

DISCUSSION

I. Standard of Review

A court will " liberally construe 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) (citation omitted). " The policy of liberally construing pro se submissions is driven by the understanding that '[i]mplicit in the right to self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.'" Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). Although a court is " obligated to draw the most favorable inferences that [a plaintiff's] complaint supports, [a court] cannot invent factual allegations that he has not pled." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). " [T]he court should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and internal quotation marks omitted).

To survive a motion to dismiss, a complaint " must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 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)). On a 12(b)(6) motion, a district court may consider only the complaint, documents attached to the complaint, matters of which a court can take judicial notice, or documents that plaintiffs knew about and relied upon. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). A court must accept allegations contained in the complaint as true and draw all reasonable inferences in favor of the non-movant. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). The standard is " applied with particular strictness when the plaintiff complains of a civil rights violation . . . or where the plaintiff is appearing pro se." Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991) (citations omitted).

Notwithstanding the special solicitude afforded to pro se civil rights complainants, district courts are required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). A court must dismiss a complaint, or portion thereof, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). The Prison Litigation Reform Act (the " PLRA") provides that " [n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a).

II. The Amended Complaint

Liberally construed, Plaintiff claims that the City, PHS, Joseph, and other unnamed Defendants violated his Eighth Amendment rights by failing to protect him from other inmates. Plaintiff alleges that Joseph and an anonymous Captain violated his Eighth Amendment rights by using excessive force and injuring him. Plaintiff also claims that the City and PHS are liable for these violations pursuant to Monell .

A. Failure to Protect

The Eighth Amendment, which applies to the states through the Due Process Clause of the Fourteenth Amendment, see Rhodes v. Chapman, 452 U.S. 337, 344-45, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), prohibits the " unnecessary and wanton infliction of pain, " Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). It is well established that under the Eighth Amendment, " prison officials have a duty . . . to protect prisoners from violence at the hands of other prisoners." Farmer v. Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (citation and internal quotation marks omitted). " However, not every injury that occurs in prison between two prisoners rises to the level of a constitutional violation." Strano v. City of New York, 97 Civ. 0387, 1998 WL 338097, at *2 (S.D.N.Y. June 24, 1998) (citation omitted).

To establish a constitutional violation, courts require a prisoner to demonstrate that named prison officials were responsible for exposing the prisoner to a constitutionally intolerable risk of violence. See Farmer, 511 U.S. at 834; Morales v. N.Y. State Dep't of Corr., 842 F.2d 27, 29-30 (2d Cir. 1988). " In Farmer, the Supreme Court set out a two-pronged test that determines when a failure to protect a prison inmate from assault by other inmates rises to the level of a constitutional violation." Hines v. Lacy, No. 98-2961, 1999 WL 642915, at *3 (2d Cir. Aug. 20, 1999). The objective first prong requires that the inmate must have been " incarcerated under conditions posing a substantial risk of serious harm." Farmer, 511 U.S. at 834. The subjective second prong requires that the prison official must have shown " deliberate indifference" to the prisoner's safety. Id.

Two of the incidents alleged by Plaintiff involve injuries sustained at the hands of fellow prisoners. With respect to the first, Plaintiff alleges that on October 15, 2013, he was in a " one on one" fight with another inmate during which his left tibia and right knee were injured. Am. Compl. at 3, 9. Plaintiff has only alleged that he and another inmate were in an altercation and has not alleged the personal involvement of any Defendant. This is not sufficient to state a claim. See Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006) (" It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.") (internal quotation marks omitted). Nor are the allegations surrounding the October 15, 2013 altercation sufficient to satisfy either the objective or subjective requirements of an Eighth Amendment failure to protect claim. First, Plaintiff does not allege that he was confined under circumstances that posed a substantial risk of serious harm. Specifically, Plaintiff has not alleged that officers failed to intervene to stop the attack, nor has Plaintiff pointed to any previous altercations between himself and the other inmate or to any requests to be separated from that individual. See Blake v. Kelly, 12 Civ. 7245, 2014 WL 4230889, at *5 (S.D.N.Y. Aug. 26, 2014). And it is well established that " [m]inor injuries from random altercations" or other unexpected incidents are generally not sufficient to make out a claim for deliberate indifference. Gilmore v. Rivera, 13 Civ. 6955, 2014 WL 1998227, at *4 (S.D.N.Y. May 14, 2014) (internal quotation marks omitted); see also Colliton v. Gonzalez, 07 Civ. 2125, 2011 WL 1118621, at *6 (S.D.N.Y. Mar. 23, 2011). Second, Plaintiff has not alleged that any of the named Defendants knew of and disregarded a risk to Plaintiff as required under the subjective prong. See Parris v. N.Y. State Dep't Corr. Servs., 947 F.Supp.2d 354, 363 (S.D.N.Y. 2013). Plaintiff's allegations concerning the October 15, 2013 incident do not state a claim upon which relief may be granted.

With respect to the second incident, Plaintiff claims that on October 18, 2013, an inmate hit Plaintiff in the head with broomstick because Joseph had previously called Plaintiff a " snitch" in front of other inmates. Unlike the October 15, 2013 incident, Plaintiff has alleged personal involvement, and there are sufficient allegations against Joseph, which, if substantiated, could establish an Eighth Amendment failure to protect claim. As courts in this Circuit have recognized, " a claim for deliberate indifference may lie where a corrections officer identifies an inmate as being an informant or 'snitch' in front of other inmates." Campbell v. Gardiner, 12 Civ. 6003, 2014 WL 906160, at *4 (W.D.N.Y. Mar. 7, 2014) (collecting cases); see also Allah v. Juchnewioz, 93 Civ. 8813, 1999 WL 562100, at *3 (S.D.N.Y. July 30, 1999) (" Many courts have recognized, . . . in the context of Eighth Amendment analysis, the dangers a prisoner faces from his fellow inmates when labeled a snitch or informant."); Young v. Coughlin, 93 Civ. 262, 1998 WL 32518, at *7 n.9 (S.D.N.Y. Jan. 29 1998) (" [C]alling a prisoner a 'snitch' in front of other prisoners with wanton disregard for the inmate's safety may constitute an Eighth Amendment violation."), aff'd, 182 F.3d 902 (2d Cir. 1999). Plaintiff's allegation that Joseph called Plaintiff a " snitch" in the presence of other inmates suggests deliberate conduct that creates a real risk of physical injury. Such conduct by an officer is capable of satisfying both the objective and subjective prongs. Plaintiff, however, fails to allege the personal involvement of the remaining Defendants. Moreover, Plaintiff has not alleged that any other Defendant had the requisite knowledge of Joseph's statements or of any related risk to Plaintiff's safety. Accordingly, Plaintiff has stated a failure to protect claim against Joseph but has not stated a claim against the remaining Defendants in connection with the October 18, 2013 incident.

B. Excessive Force

" In the context of a claim by a prisoner that he was subjected to excessive force by prison employees, the source of the ban against such force is the Eighth Amendment's ban on cruel and unusual punishments." Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009). Under the Eighth Amendment, " inmates have the right to be free from 'unnecessary and wanton infliction of pain' at the hands of prison officials." Romano v. Howarth, 998 F.2d 101, 104 (2d Cir. 1993) (citation omitted). In evaluating an excessive force claim under the Eighth Amendment, a court considers two factors, " one subjective, focusing on the defendant's motive for his conduct, and the other objective, focusing on the conduct's effect." Wright, 554 F.3d at 268.

Under the subjective component, a plaintiff must establish that a defendant's use of force was inflicted " 'maliciously and sadistically for the very purpose of causing harm'" and that it was not " 'applied in a good faith effort to maintain or restore discipline.'" James v. Hayden, 06 Civ. 12911, 2008 WL 5062737, at *2 (S.D.N.Y. Nov. 25, 2008) (quoting Hudson v. McMillian, 503 U.S. 1, 6, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)). With respect to the objective component, the Eighth Amendment's ban on cruel and unusual punishment does not extend to " de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Hudson, 503 U.S. at 10 (internal quotation marks omitted). Thus, " [n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights." Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (citation omitted); see also Hudson, 503 U.S. at 9.

In his complaint, Plaintiff describes two incidents during which he sustained injuries as a direct result of officer conduct. First, Plaintiff alleges that on August 2, 2013, Joseph caused injuries to Plaintiff's right arm by slamming it in a slot on Plaintiff's cell door. Plaintiff attaches a medical report to his amended complaint indicating that Plaintiff suffered a " non-tender ecchymosis" ( i.e., a bruise) on his forearm. Am. Compl. 8. The report states that there was no bleeding and that the sole treatment Plaintiff received was " reassurance." Id. The facts alleged do not plausibly suggest more than a de minimis use of force and do not rise to the level of a constitutional violation. As courts have recognized when confronted with similar allegations, " [t]he insignificance of plaintiff's injuries and the fact that the medical records completely undermine his allegations . . . warrant a finding that the force used was de minimis as a matter of law." Gashi v. Cnty. of Westchester, 02 Civ. 6934, 2007 WL 749684, at *6 (S.D.N.Y. Mar. 12, 2007); see also Perry v. Stephens, 659 F.Supp.2d 577, 582 (S.D.N.Y. 2009) (" [C]ourts in this Circuit have routinely found such types of minimal injuries and pain insufficient to satisfy the objective prong for claims of Eighth Amendment violations.") (collecting cases). Accordingly, Plaintiff has failed to state an Eighth Amendment excessive force claim in connection with the August 2, 2013 incident

Second, Plaintiff alleges that on October 15, 2013, he was punched by an unnamed Captain and that he suffered a cut to his lip. The injury report attached by Plaintiff to the amended complaint states that Plaintiff refused an ice pack when offered, and there is no other indication that the injury suffered was more than de minimis . Am. Compl. 3, 11. As with the August 2, 2013 incident, these allegations are insufficient to state a claim under the objective prong. See Perry, 659 F.Supp.2d at 582; Gashi, 2007 WL 749684, at *6. Moreover, the DOC report provided by Plaintiff states that he was " involved in a use of force after attempting to assault staff, " and Plaintiff offers no other details as to the circumstances giving rise to this incident. Am. Compl. 3, 11. Plaintiff does not allege that the unidentified Captain acted unreasonably or with the purpose of maliciously injuring Plaintiff as is required to state a claim under the subjective prong. Accordingly, Plaintiff has failed to state an excessive force claim in connection with the October 15, 2013 incident.

C. Monell Claims

" [A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents." Monell, 436 U.S. at 694. To state a § 1983 claim against the City, Plaintiff must allege that the alleged actions were committed pursuant to an official policy, practice, or custom. See id. The requirement also applies to private entities such as PHS that are " contracted by municipalities to provide medical care to inmates." Dolan v. Richards, 10 Civ. 5809, 2011 WL 1197462, at *1, *4 (S.D.N.Y. Mar. 25, 2011) (citation omitted). A plaintiff can meet this requirement by identifying a particular decision or action by someone who is asserted to be a final policymaker for the governmental entity being sued. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). Consistent with this principle, " where a policymaking official exhibits deliberate indifference to constitutional deprivations caused by subordinates, such that the official's inaction constitutes a deliberate choice, that acquiescence may be properly thought of as a city policy or custom that is actionable under § 1983." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 126 (2d Cir. 2004) (Sotomayor, J.) (citation and internal quotation marks omitted).

Plaintiff has failed to allege, even in a conclusory fashion, the existence of a policy or custom pursuant to which the City and PHS violated his constitutional rights. Nor has Plaintiff alleged any facts from which such a policy might be inferred. See Seymore v. Dep of Corr. Servs., 11 Civ. 2254, 2014 WL 641428, at *8 (S.D.N.Y. Feb. 18, 2014) (" [T]he plaintiff's complaint fails to state a claim against the City because the plaintiff has not alleged any facts that connect his asserted injuries to any training, policy, or custom on the part of the City of New York."). Indeed, there is no suggestion in the amended complaint that the City or PHS, or any relevant policymaking officials, were alerted to potential constitutional violations against Plaintiff and exhibited deliberate indifference to those violations. Plaintiff has failed to cure the deficiencies the Court identified in dismissing the Monell claims in Plaintiff's initial complaint and, again, has failed to state a claim against the City or PHS in the amended complaint.

III. Exhaustion of Administrative Remedies

The PLRA provides that " [n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). " Exhaustion is mandatory--unexhausted claims may not be pursued in federal court." Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011); see also Booth v. Churner, 532 U.S. 731, 741 n.6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) (" [A]n inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues."). Exhaustion under the PLRA is an affirmative defense, and, " [a]s such, plaintiff need not plead exhaustion in the complaint." Bennett v. Onua, 09 Civ. 7227, 2010 WL 2159199, at *2 (S.D.N.Y. May 26, 2010). " However, if it is clear from the face of the complaint that the plaintiff failed to exhaust administrative remedies, a motion to dismiss pursuant to Rule 12(b)(6) for failure to exhaust should be granted." Lewis v. City of New York, 12 Civ. 5850, 2013 WL 3833001, at *3 (S.D.N.Y. July 23, 2013).

The DOC has a formal grievance process known as the Inmate Grievance Resolution Program (the " IGRP"), [2] which this Court may take judicial notice of as a matter of public record. See Myers v. City of New York, 11 Civ. 8525, 2012 WL 3776707, at *4 n.6 (S.D.N.Y. Aug. 29, 2012) (collecting cases). Pursuant to the IGRP, inmates are required to follow a four-tiered review process for most grievances. Charles v. Gordon, 12 Civ. 8332, 2013 WL 6667632, at *3 (S.D.N.Y. Dec. 17, 2013) .

In dismissing Plaintiff's initial complaint, the Court instructed Plaintiff to produce evidence demonstrating that he exhausted all available administrative relief. See Order 11. Plaintiff has failed to comply with this instruction. However, it is not clear from the face of the amended complaint that Plaintiff failed to exhaust all available administrative remedies as to the alleged constitutional violations, and normally the Court must make a factual finding regarding exhaustion before dismissing on this ground. See Dennis v. Westchester Cnty. Jail Corr. Dep't, 485 F.App'x 478, 480 (2d Cir. 2012) (summary order) (citation omitted). In particular, Plaintiff alleges that he filed grievances in connection with each incident and that he sought to appeal certain of those decisions to the warden and the grievance appeals board when he was dissatisfied with the results. Although Defendant may ultimately prevail in demonstrating Plaintiff's failure to exhaust following discovery on this issue, the Court declines to find that it is clear from the face of the amended complaint that Plaintiff failed to exhaust all available administrative remedies in connection with his failure to protect claim.

CONCLUSION

Defendants' motion to dismiss is DENIED as to the failure to protect claim asserted against Joseph and GRANTED with prejudice in all other respects.

The Clerk of the Court is directed to: (1) terminate the motion at ECF No. 51; (2) mail a copy of this order and all unpublished cases cited herein to Plaintiff pro se; and (3) amend the caption as set forth on page one of this memorandum and order.

SO ORDERED.


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