United States District Court, S.D. New York
G. GARDEPHE UNITED STATES DISTRICT JUDGE.
se Plaintiff Hiawatha Cuffee, Jr., brings this action,
pursuant to 42 U.S.C. § 1983, against the City of New
York (the "City") and New York City Department of
Corrections ("DOC") Officers Gonzalez and
Squillaro. Plaintiff- who is incarcerated - alleges that the
individual defendants violated his constitutional rights in
connection with a motor vehicle accident involving a DOC bus
that was transporting Plaintiff to Rikers Island. (Cmplt.
(Dkt. No. 2)) Plaintiff also brings a Monell claim
against the City. (Id.) Defendants have moved to
dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6).
(Dkt. No. 16)
October 20, 2016, this Court referred Defendants' motion
to Magistrate Judge Debra Freeman for a Report and
Recommendation ("R & R"). (Dkt. No. 27) On
March 3, 2017, Judge Freeman issued a 28-page R & R
recommending that Defendants' motion to dismiss be
granted in part and denied in part. (Dkt. No. 29) For the
reasons stated below, this Court will adopt the R & R in
31, 2015, the DOC transported Plaintiff by bus from Rikers
Island -where Plaintiff was being detained - to Bellevue
Hospital Center. (Cmplt. (Dkt. No. 2) at 9)At Bellevue
Hospital, Plaintiff underwent a prostate examination and
biopsy. (Id.) After the procedure. Plaintiff got on
a DOC bus for transport back to Rikers Island. (Id.)
Plaintiff alleges that he "was handcuffed and shackled
at the waist[, ] and confined in a steel, locked cage
approximately VA feet wide." (Id.) The
cage "was positioned directly behind the driver" of
the bus. (Id.) Plaintiff did not have a seatbelt.
(Id. at 12) Defendant Gonzalez was driving the bus
(id. at 9), and Defendant Squillaro was present as a
passenger. (See Id. at 9-10; May 21, 2016
Pltf. Ltr. (Dkt. No. 14) at 3)
about 12:40 p.m., as the bus was returning to Rikers Island,
Defendant Gonzalez "pull[ed] out into traffic ... at an
unusually high rate of speed." (Cmplt. (Dkt. No. 2) at
9) Plaintiff then "heard the screeching of tires, "
and the DOC bus collided with another motor vehicle.
(Id. at 9-11; May 21, 2016 Pltf. Ltr. (Dkt. No. 14)
at 2) Plaintiff "was thrown forward" in the steel
cage and, "upon impact, " he "injured [his]
knee, lower back, . . . neck, and . . . was also bleeding
from [his] rectal area [due] to [his] recent biopsy."
(Cmplt. (Dkt. No. 2) at 9) Plaintiff alleges that he
"began screaming to [Defendant] Gonzalez ... to ... get
[him] back to the hospital because [he] desperately needed
medical assistance." (Id.) Plaintiff also
alleges that he told Defendants Gonzalez and Squillaro
"over and over" that he was bleeding. (May 21, 2016
Pltf Ltr. (Dkt. No. 14) at 3) Other inmates on the bus also
"scream[ed] for help" and "pleaded for medical
assistance." (Cmplt. (Dkt. No. 2) at 9)
Gonzalez and Squillaro told Plaintiff to "hold on"
and hurriedly exited the bus to investigate the accident.
(See id.) Although the bus was only "[five]
minutes [away] from Bellevue Hospital" at the time of
the accident (May 21, 2016 Pltf. Ltr. (Dkt. No. 14) at 1),
Plaintiff and the other inmates "sat on the bus for 1
Vi hours waiting for [DOC supervisors] to complete
their investigation [of the accident]." (Id. at
9) Plaintiff and the other inmates - still in shackles and
chains - were eventually loaded onto another DOC bus for
transport back to Rikers Island. (See May 21, 2016 Pltf. Ltr.
(Dkt. No. 14) at 1) Plaintiff "did not receive medical
attention until he was returned back to Rikers
[Island]." (Cmplt. (Dkt. No. 2) at 10) Plaintiff
contends that the defendant officers' failure to return
to Bellevue or to call medical personnel to the scene
"caused further harm to Plaintiff." (May 21, 2016
Pltf. Ltr. (Dkt. No. 14) at 3)
Rikers Island, Plaintiff received an X-ray and was given an
ice pack, pain medication, and a cane. (May 21, 2016 Pltf.
Ltr. (Dkt. No. 14) at 1; Cmplt. (Dkt. No. 2) at 4) Plaintiff
alleges that, as a result of the accident, he sustained
injuries to his neck, lower back, knees and pelvis, and that
he suffers "extreme" and "continued pain . .
. every day." (Cmplt. (Dkt. No. 2) at 10-11) Plaintiff
continues to walk with a cane and a "stomach belt,
" and expresses concern that his loss of mobility will
prevent him from performing his duties as a "certified
plant maintenance electrician." (Id. at 10-12)
commenced this action on November 12, 2015. (Dkt. No. 2) The
Complaint - considered liberally and together with
Plaintiffs' other filings - asserts three causes of
action: (1) a Fourth Amendment claim against Defendants
Gonzalez and Squillaro, based on their "reckless"
conduct that placed Plaintiff in a "dangerous
position" and caused his injuries; (2) an Eighth
Amendment or Fourteenth Amendment claim for deliberate
indifference against Defendants Gonzalez and Squillaro, based
on "their cruel and unusual punishment and lack . . .
of. . . medical response" to his injuries following the
accident; and (3) a Monell claim against
the City, based on its failure to equip DOC buses with seat
belts or air bags, which creates a danger that "shackled
and handcuffed" detainees may "fly out of their
seats." (Id. at 11-12)
30, 2016, Defendants moved to dismiss the Complaint pursuant
to Fed.R.Civ.P. 12(b)(6). (Dkt. No. 16) On October 20, 2016,
this Court referred Defendants' motion to Magistrate
Judge Debra Freeman for a Report and Recommendation ("R
& R"). (Dkt. No. 27) On March 3, 2017, Judge Freeman
issued a 28-page R & R recommending that Defendants'
motion to dismiss be granted except as to Plaintiffs
deliberate indifference claim against Defendant Gonzalez. (R
& R (Dkt. No. 29) at 26) Judge Freeman further recommends
that Plaintiff be granted leave to amend the remaining claims
in the Complaint, with the exception of the Fourth Amendment
claim, which Judge Freeman recommends be dismissed with
Freeman's R & R gives notice that any objections are
to be filed within fourteen days from service of the R &
R, and that "FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN
(14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL
PRECLUDE APPELLATE REVIEW." (Id. at 27) No
objections to the R & R have been filed.
Review of Magistrate Judge's Report and
reviewing a magistrate judge's report and recommendation,
a district court "may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate judge." 28 U.S.C. § 636(b)(1). Under 28
U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), a party may
submit objections to the magistrate judge's R & R.
Any objections must be "specific" and
"written, " and must be made "[w]ithin 14 days
after being served with a copy of the recommended
disposition." Fed.R.Civ.P. 72(b)(2); see also
28 U.S.C. § 636(b)(1).
district judge evaluating a magistrate judge's
recommendation may adopt those portions of the
recommendation, without further review, where no specific
objection is made, as long as they are not clearly
erroneous.'" Gilmore v. Comm'r of Soc.
Sec, No. 09 Civ. 6241 (RMB) (FM), 2011 WL 611826, at *1
(S.D.N.Y. Feb. 18, 2011) (quoting Chimarev v. TD
Waterhouse Investor Servs., Inc., 280 F.Supp.2d 208, 212
(S.D.N.Y. 2003)). A decision is "clearly erroneous"
when, "upon review of the entire record, [the court is]
left with the definite and firm conviction that a mistake has
been committed." United States v. Snow, 462
F.3d 55, 72 (2d Cir. 2006) (quotation marks and citation
Motion to Dismiss Standard
survive a motion to dismiss, 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 (2009) (quoting
Bell Atl. Corp. v. Twomblv. 550 U.S. 544, 570
(2007)). "In considering a motion to dismiss ... the
court is to accept as true all facts alleged in the
complaint, " Kassner v. 2nd Ave. Delicatessen
Inc.. 496 F.3d 229, 237 (2d Cir. 2007) (citing
Dougherty v. Town of N. Hempstead Bd. of Zoning
Appeals, 282 F.3d 83, 87 (2d Cir. 2002)), and must
"draw all reasonable inferences in favor of the
plaintiff." Id. (citing Fernandez v.
Chertoff, 471 F.3d 45, 51 (2d Cir. 2006)).
complaint is inadequately pled "if it tenders 'naked
assertion[s]' devoid of 'further factual enhancement,
'" Iqbal, 556 U.S. at 678 (quoting
Twomblv, 550 U.S. at 557), and does not provide
factual allegations sufficient "to give the defendant
fair notice of what the claim is and the grounds upon which
it rests." Port Dock & Stone Corp. v. Oldcastle
Northeast, Inc., 507 F.3d 117, 121 (2d Cir. 2007)
(citing Twomblv. 550 U.S. at 545).
a court in deciding a Rule 12(b)(6) motion is generally
limited to considering the facts alleged in the complaint, a
district court may also consider documents appended to the
complaint, documents incorporated by reference, and matters
of which judicial notice may be taken." Johnson v.
Ctv. of Nassau, 411 F.Supp.2d 171, 178 (E.D.N.Y.2006)
(citing Allen v. WestPoint-Pepperell. Inc.. 945 F.2d
40, 44 (2d Cir. 1991)). "In addition, a court may also
consider documents outside the pleadings if they are
'integral' to the complaint and upon which the
complaint relies." Id. at 178 (citing
Int'l Audiotext Network, Inc. v. American Tel, and
Tel. Co.. 62 F.3d 69, 72 (2d Cir. 1995)).
"pro se complaint. . . [is] interpreted] ... to raise
the 'strongest [claims] that [it] suggest[s].'"
Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)
(quoting Triestman v. Fed-Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006) (per curiam)); see
Weixel v. Bd. of Educ. of Citvof NewYork. 287 F.3d
138, 145-46 (2d Cir. 2002) ("When considering motions to
dismiss a pro se complaint such as this, 'courts
must construe [the complaint] broadly. . . .'"
(quoting Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir.
2000))). "However, although pro se filings are read
liberally and must be interpreted 'to raise the strongest
arguments that they suggest, ' a pro se complaint must
still 'plead sufficient facts to state a claim to relief
that is plausible on its face.'" Wilder v.
United States Dep't of Veterans Affairs. 175
F.Supp.3d 82, 87 (S.D.N.Y.2016) (internal citations omitted).
Moreover, "the court need not accept as true
'conclusions of law or unwarranted deductions of
fact."' Whitfield v. O'Connell, No. 09
Civ. 1925 (WHP), 2010 WL 1010060, at *4 (S.D.N.Y.Mar. 18,
2010) (quoting First Nationwide Bank v. ...