United States District Court, S.D. New York
OPINION AND ORDER
PAUL OETKEN, United States District Judge
Jay Bradshaw, currently incarcerated at the Green Haven
Correctional Facility, brings this action pro se,
under 42 U.S.C. §§ 1981, 1983, and 1988, as well as
under state law. Bradshaw alleges that, when he was
incarcerated at the Anna M. Kross Center, Defendants denied
him postage to mail his Notice of Intention to File a Claim
by certified mail to the New York Office of the Comptroller,
violating his right of access to the courts, access to mail,
and other rights. Bradshaw first filed suit on November 17,
2015. (See Dkt. No. 2.) Defendants then filed a
motion to dismiss (see Dkt. No. 13), and in response
Bradshaw filed the operative amended complaint in this action
(see Dkt. No. 15
(“Compl.”)). Defendants, in turn, filed a motion to
dismiss the amended complaint. (Dkt. No. 19.) For the reasons
discussed below, the motion to dismiss the amended complaint
is granted in part and denied in part.
facts described herein are, unless otherwise noted, taken
from the operative complaint, papers appended to the
complaint, or, consistent with the Court's responsibility
to liberally construe a pro se plaintiff's
papers, from Bradshaw's opposition to the motion to
dismiss. See Escoffier v. City of N.Y., No. 13 Civ.
3918, 2016 WL 590229, at *1 (S.D.N.Y. Feb. 11, 2016).
Bradshaw's allegations are presumed true for the purposes
of this motion.
windows in the “dayroom area” at Anna M. Kross
Center (“AMKC”), in the Quad Lower 6 housing
unit-where Bradshaw was housed-would not close. (Compl.
¶ 11.) Even in the “bitterly cold months of
January and February, ” the windows stayed open,
prompting “several” inmate complaints regarding
the temperature. (Id.) On February 15, 2015,
maintenance “sealed all the windows” in the unit
using plastic bags. (Id. ¶ 13.) But the unit
now suffered from “insufficient air circulation”
and lacked any ventilation, producing very hot temperatures
that reached “above 100 degrees.” (Id.
¶ 14.) Several inmate complaints were made as a result.
week after the windows were sealed up, on February 22, 2015,
Bradshaw suffered difficulty breathing, along with
“throat and chest congestion, nausea and a
headache.” (Id. ¶ 15.) Bradshaw alleges
that these symptoms were caused by the hot temperatures and
absence of ventilation in the Quad. (Id.) As a
result, Bradshaw was taken to the medical clinic at AMKC for
an examination. (Id. ¶ 16.) The personnel there
determined that Bradshaw had contracted a throat infection,
and they provided him with treatment. (Id. ¶17;
id. at 23-25 (“Ex. 1”).)
result of the incident, Bradshaw sought to file a Notice of
Intention to File a Claim against the City of New York for
failure to properly maintain AMKC and for negligence in
causing Bradshaw's illness. (Id. ¶ 18-19;
id. at 27-30 (“Ex. 2”).) Bradshaw sought
to file the Notice within ninety days of the incident, by
mid-May, as required by New York General Municipal Law §
50-e. (Id. ¶ 18.) On March 12, 2015, Bradshaw
gave Officer Thomas (whom Bradshaw describes as the
“mail-officer at AMKC”) certified, outgoing legal
mail, which was labeled as such and addressed to the Office
of the Comptroller. (Id. ¶ 20; id. at
32 (“Ex. 3”).) Thomas told Bradshaw that because
Bradshaw was “indigent and unable to pay” the
cost of postage, he should “execute and submit with his
certified . . . mail an ‘Inmate Request for Withdrawal
of Funds for Postage' form, ” which Bradshaw
completed on March 12. (Id. ¶ 21; id.
at 24 (“Ex. 4”).) Based on this form, Bradshaw
alleges that Defendant John Doe, a “Social Service
Supervisor, ” determined that there was no money in
Bradshaw's “Inmate Account” on March 16,
March 19, and April 9, 2015. (Id. ¶¶ 9,
22.) Nevertheless, Doe failed to provide the funds required
for postage and “held the mail.” (Id.
month after Bradshaw sought to send the Notice, on April 14,
2015, Thomas returned the Notice to Bradshaw, along with two
other unspecified pieces of certified mail, also addressed to
the Office of the Comptroller. (Id. ¶ 23.)
Bradshaw claims that Thomas told him that Doe simply
“refuse[d] to provide funds to pay [the] expense of the
Certified Mail Receipt despite the Department's duty to
indigent inmates.” (Id. ¶ 24.) Thomas
allegedly told Bradshaw to “file a grievance.”
(Id. ¶ 25.)
April 19, 2015, Plaintiff filed a grievance regarding the
three pieces of “Certified (out-going legal)
mail” addressed to the Office of the Comptroller that
had been returned and for which Doe had refused to provide
the required funds for postage. (Id. ¶ 26;
id. at 36 (“Ex. 5”).) Having received
“no response, ” Bradshaw appealed and requested a
formal hearing, by letter dated May 1, 2015. (Id.
¶ 27; id. at 38 (“Ex. 6”).) Again
receiving no word back, Bradshaw appealed to Tony Durante
(“Warden Durante”), by letter dated May 11, 2015.
(Id. ¶ 28; id. at 40 (“Ex.
7”).) When Warden Durante failed to issue a decision,
Bradshaw appealed to the “Central Office Review
Committee” (“CORC”), by letter dated May
23, 2015. (Id. ¶ 29; id. at 42
(“Ex. 8”).) The CORC failed to render a decision
or otherwise respond, so Bradshaw considered his initial
grievance and subsequent appeals “constructively
denied.” (Id. ¶¶ 30-31.) Bradshaw
received only a letter from the “DOC, Office of the
Commissioner” stating that the Department of Correction
had received his letter of May 23, 2015, and that the letter
had been forwarded to the appropriate unit for investigation.
(Id. ¶ 32; id. at 44 (“Ex.
9”).) But Bradshaw received nothing further.
(Id. ¶ 33.) The ninety-day window in which
Bradshaw could file his Notice of Claim under New York law
elapsed on May 23, 2015. (Id. ¶ 34.)
9, 2016, Bradshaw was transferred from AMKC to Green Haven
Correctional Facility, where he remains to this day.
(Id. ¶ 35.) Bradshaw alleges that this was the
first time he had access to a law library. (Id.)
result of these circumstances, Bradshaw alleges that he was
“prevented from sending his Notice of Claim, ”
forfeiting the chance to bring a legal action. (Id.
¶ 36.) Here, Bradshaw brings a claim under 42 U.S.C.
§ 1983 for the deprivation of his access to courts and
his First Amendment right to send mail. (Id.
¶¶ 38-43.) Bradshaw further asserts claims for
discrimination on the basis of race or national origin.
(Id. ¶ 40.) He additionally alleges that the
relevant authorities failed to intervene, and advances claims
of supervisory and municipal liability, based on a pattern or
practice carried out by the city. (Id. ¶¶
53-66.) Bradshaw further claims that the City was generally
negligent, and specifically negligent in the screening,
hiring, and retention of personnel at AMKC, and in its
training and supervising, in violation of New York law, and
he further makes a claim for respondeat superior liability.
(Id. ¶¶ 67-78.) Finally, Bradshaw asserts
a claim under the Constitution of the State of New York that
duplicates the federal constitutional torts alleged.
(Id. ¶¶ 79-81.)
survive a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), “a complaint must contain
sufficient factual matter . . . to state a claim to relief
that is plausible on its face.” Wilson v. Merrill
Lynch & Co., 671 F.3d 120, 128 (2d Cir. 2011)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation mark omitted)). “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.”
Id. (quoting Iqbal, 556 U.S. at 678)
(internal quotation marks omitted).
evaluating whether a complaint meets these requirements,
courts assume that all “factual allegations contained
in the complaint” are true, Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 572 (2007), and “draw all
inferences in the light most favorable to the non-moving
party, ” In re NYSE Specialists Sec. Litig.,
503 F.3d 89, 95 (2d Cir. 2007) (citation omitted).
Additionally, a complaint “filed pro se is
‘to be liberally construed, ' and ‘a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers.'” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)).
heart of Bradshaw's claims is that Defendants violated
his rights, while he was an indigent inmate at AMKC, by
failing to provide the required postage to send outgoing
legal mail. “[A]s few as two incidents of mail
tampering could constitute an actionable violation (1) if the
incidents suggested an ongoing practice of censorship
unjustified by a substantial government interest, or (2) if
the tampering unjustifiably chilled the prisoner's right
of access to the courts or impaired the legal representation
received.” Davis v. Goord,320 F.3d 346, 351
(2d Cir. 2003) (citing Washington v. James, 782 F.2d
1134, 1139 (2d Cir. 1986)). “Interference with a
prisoner's mail thus may implicate two distinct rights:
the ‘right of access to the courts' ...