United States District Court, S.D. New York
REPORT AND RECOMMENDATION
C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE.
plaintiff, James Daly, proceeding pro se, brings this action
against the City of New York (the "City"); Joseph
Ponte, former Commissioner of the New York City Department of
Correction (the "DOC"); and Maxsolaine Mingo,
former Warden of the Anna M. Kross Center (the
"AMKC") on Rikers Island. Mr. Daly sues under 42
U.S.C. § 1983, arguing that the defendants violated his
constitutional rights by requiring him to sleep on an
improperly mounted mattress, exacerbating pre-existing
medical problems with his back. He now seeks injunctive
relief in the form of a more suitable mattress, compensatory
damages totaling $15, 000, 000, and punitive damages in the
amount of $5, 000, 000.
defendants filed a motion to dismiss the complaint pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure to
which the plaintiff has not responded. For the reasons that
follow, I recommend that the motion be granted.
Daly's complaint states that while he was being
detainedat the AMKC, “the NYCDOC  forced
[him] to mis-use the Bob Barker mattress on a foundation when
it is clearly labeled to be used without one.”
(Complaint (“Compl.”) at 3). To substantiate this
claim, he has attached a copy of a mattress tag to the
complaint which states “this mattress is intended to be
used without a foundation.” (Mattress Warning
Label, attached as exhibit to Compl.). Mr. Daly also claims
that he suffers “from spinal stenosis as well as 2
crushed vertebrae.” (Compl. at 3). He further asserts
that “the NYCDOC is aware that this product causes
medical issues and induces severe pain when it is
mis-used” and that “[b]ecause of their deliberate
indifference[, his] pre-existing condition has been
exacerbated to the point of being continuously excruciatingly
painful.” (Compl. at 3).
Daly filed a grievance with the DOC on July 14, 2016,
alleging that his mattress exacerbated his back conditions.
(Compl. at 8). He brought this action two weeks later on July
28, 2017, after receiving no response to the grievance.
(Compl. at 4, 7). When asked on the complaint form to
describe what efforts he made to appeal the decision on his
grievance, Mr. Daly states, “None, they never responded
within 2 weeks.” (Compl. at 4).
defendants have moved to dismiss the complaint on the grounds
that: (1) the plaintiff failed to exhaust his administrative
remedies, (2) the constitutional claim is insufficiently
pled, and (3) no facts are alleged in the complaint that
could plausibly provide a basis for municipal or individual
survive a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, “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 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). The court's charge in ruling on a 12(b)(6)
motion “is merely to assess the legal feasibility of
the complaint, not to assay the weight of the evidence which
might be offered in support thereof.” GVA Market
Neutral Master Ltd. v. Veras Capital Partners Offshore Fund,
Ltd., 580 F.Supp.2d 321, 327 (S.D.N.Y. 2008) (quoting
Eternity Global Master Fund Ltd. v. Morgan Guaranty Trust
Co. of New York, 375 F.3d 168, 176 (2d Cir. 2004)). The
court must construe the complaint in the light most favorable
to the plaintiff, “taking its factual allegations to be
true and drawing all reasonable inferences in the
plaintiff's favor.” Harris v. Mills, 572
F.3d 66, 71 (2d Cir. 2009).
standard applies equally to pro se plaintiffs, but
their pleadings are read more liberally and are construed as
raising the strongest claims implied. See Teichmann v.
New York, 769 F.3d 821, 825 (2d Cir. 2014). The court
may also consider “materials outside the complaint to
the extent that they are consistent with the allegations in
the complaint.” Martinez v. Aycock-West, 164
F.Supp.3d 502, 508 (S.D.N.Y. 2016) (quoting Alsaifullah
v. Furco, No. 12 Civ. 2907, 2013 WL 3972514, at *4 n.3
(S.D.N.Y. Aug. 2, 2013)). Finally, even if a plaintiff does
not oppose a Rule 12(b)(6) motion, the failure to respond
does not warrant dismissal if the complaint sufficiently
states a claim. McCall v. Pataki, 232 F.3d 321, 323
(2d Cir. 2000).
Exhaustion of Administrative Remedies '
Prison Litigation Reform Act bars a prisoner from bringing a
§ 1983 action related to prison conditions unless
“administrative remedies . . . are exhausted.” 42
U.S.C. § 1997e(a); see also Williams v.
Priatno, 829 F.3d 118, 122 (2d Cir. 2016). Because
failure to exhaust is an affirmative defense, a
plaintiff's complaint need not allege that he has
exhausted his administrative remedies. Williams, 839
F.3d at 122. Therefore, a court may dismiss a complaint only
if a plaintiff's failure to exhaust “is clear on
the face of the complaint.” Id.
case, the plaintiff was required to comply with the DOC's
multi-step Inmate Grievance Resolution Program