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McCray v. Lee

United States District Court, S.D. New York

May 24, 2017

LIONEL McCRAY, Plaintiff,
v.
SUPERINTENDENT WILLIAM LEE, WATCH COMMANDER LT. PLIMLEY, SERGEANT KUTZ, Defendants.

          Lionel McCray Auburn, NY Pro Se Plaintiff

          Bradley G. Wilson, Esq. Counsel for Defendants

          OPINION & ORDER

          KENNETH M. KARAS, District Judge:

         Plaintiff Lionel McCray (“Plaintiff”), currently an inmate at Auburn Correctional Facility proceeding pro se, brings this Action against Superintendent William Lee (“Lee”), Watch Commander Lt. Plimley (“Plimley”) and Sergeant Kutz (“Kutz, ” and collectively, “Defendants”), for violation of Plaintiff's rights under the Eighth Amendment and New York State law. Before the Court is Defendants' Motion To Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (the “Motion”). (See Dkt. No. 44.) For the reasons to follow, Defendants' Motion is granted.

         I. Background

         A. Factual Background

         The following facts are drawn from Plaintiff's Amended Complaint and are taken as true for the purpose of deciding the instant Motion.

         On February 20, 2014, at approximately 10:10 a.m., Plaintiff was in the “G and H block recreational yard” of Green Haven Correctional Facility (“Green Haven”). (Am. Compl. ¶ 12 (Dkt. No. 20).) Plaintiff was “walk[ing] down the narrow . . . walkway between H block and the handball court . . . [and] tr[ying] to avoid an about three feet long frozen solid sheet of ice on the yard walkway floor, ” when he “slipped on the frozen icy walkway and fell.” (Id. ¶ 13.) “[I]n an attempt to save his hands and face from injury, ” Plaintiff “folded himself . . . and braced for impact [of] the walkway floor, thereby landing on his left shoulder.” (Id.) Upon impact, “Plaintiff heard a pop from his ankle area.” (Id.)

         “Plaintiff limped back to E block” where he “remov[ed] his boot and show[ed] [a correctional] officer his swollen left ankle, ” and “requested an emergency sick-call.” (Id. ¶ 15.) A doctor at Green Haven “took an incident report and issued Plaintiff a bandage and some painkillers.” (Id. ¶ 16.) “Plaintiff['s] health care provider ordered an [x]-ray and MRI after Plaintiff fil[]ed a grievance for lack of adequate medical care.” (Id.)

         Plaintiff avers that “[t]here was no storm in progress at the time of [his] slip and fall, ” (id. ¶ 14), and that Defendant Kutz, “who[] was charged with supervision of . . . [i]nmates in the G and H yard on February 20[], 2014, showed complete indifference to [i]nmates['] safety” by allowing the walkways to remain “unsanded or de-iced.” (Id. ¶ 11.)

         Plaintiff further alleges that “Defendants failed to use [o]rdinary care to furnish . . . Plaintiff and other [i]nmates with a reasonably safe place to observe recreation and to perform . . . exercise, ” (id. ¶ 18), and that “[a]s a direct and proximate result of one of more of the . . . acts of . . . [D]efendants['] recklessness and deliberate indifference, ” Plaintiff suffered permanent and severe injuries to his left ankle and left shoulder, “which has caused Plaintiff to suffer great bodily and mental pains, ” (id. ¶ 17).

         Plaintiff requests declaratory and injunctive relief, as well as compensatory and punitive damages and attorney's fees. (See Id. at 10.) Plaintiff also requests that this Court “charge . . . [D]efendant . . . Lee for the [c]riminal offense of [r]eckless [e]ndangerment in the [f]irst degree.” (Id.)

         B. Procedural History

         Plaintiff filed his Complaint on March 7, 2016. (See Dkt. No. 2.) On May 23, 2016, Plaintiff filed an application for the Court to request pro bono counsel, (see Dkt. No. 8), which the Court denied without prejudice on June 7, 2016, (see Dkt. No. 10). Plaintiff filed the Amended Complaint on August 4, 2016. (See Dkt. No. 20.)

         Since filing the Amended Complaint, Plaintiff has made several motions to the Court, including a renewed application requesting counsel, (see Dkt. No. 29), a letter informing the Court that his mail has been ordered intercepted and requesting that the Court “divert[] [his case] to the Southern District Alternative Dispute Resolution Program, ” (see Dkt. No. 30), a motion to certify Plaintiff's case as a class action, (see Dkt. No. 33), a motion for a preliminary injunction and for expedited discovery, (see Dkt. No. 37), a motion requesting the Court to take judicial notice, (see Dkt. No. 47), and a motion for leave to file a Second Amended Complaint, (Dkt. No. 49).

         On January 4, 2017, Defendants filed the instant Motion To Dismiss and accompanying memorandum of law. (See Dkt. Nos. 44-45.) Plaintiff filed his opposition to Defendants' Motion on February 1, 2017, (see Dkt. No. 52), and ...


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