United States District Court, S.D. New York
OPINION & ORDER
A. ENGELMAYER, District Judge.
Angel Maldonado, proceeding pro se, brings this
action under 42 U.S.C. § 1983, alleging that his
constitutional rights were violated while incarcerated in a
dormitory that exposed him to toxic fumes. By opinion and
order dated December 14, 2016, the Court granted
defendants' motion to dismiss but granted Maldonado leave
to file a second amended complaint. Dkt. 25 (the
"Order"). On February 28, 2017, the Court received
Maldonado's second amended complaint. Dkt. 28
("SAC"). Defendants now again move to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt.
31. Maldonado has not filed an opposition to this motion. The
Court treats the motion as unopposed and independently
considers the merits of the motion. See Goldberg v.
Danaher, 599 F.3d 181, 183 (2d Cir. 2010). For the
reasons set forth below, the motion to dismiss is granted.
alleges the New York City Department of Corrections
("DOC") confined him in a dormitory in which he was
exposed to "hazardous and toxic substances, " to
wit "black mold, toxic fumes and Asbestos." SAC at
1. After the DOC performed tests, the area was determined to
be uninhabitable and Maldonado was removed from the area.
Id. at 1-2, 5. Maldonado was in the dormitory and
exposed to the toxic substances for approximately 90 days.
alleges that defendants, "through [their] negligence[, ]
failed to adhere" to a number of laws and policies that
were intended to protect individuals from asbestos.
Id. at 2; see also Id. at 3 ("These
policies . . . were put in place to protect tenants/inmates
and employees from negligent owners/employers .... Plaintiff
was not at liberty to protect himself from the negligence of
the New York City Department of [Corrections.").
alleges that Warden Tony Durante failed to "see to the
buildings being held to the proper building standards, "
id., and that "in his capacity ... to oversee
day to day operation of the facilities ... Durante should be
held liable for any action or inaction of [those] under his
authority, " id. at 4. Maldonado alleges that
it is Durante's "responsibility to maintain the
buildings on Rikers Island in a fashion that would cause no
harm to" the buildings' inmates. Id. at 5.
Maldonado also alleges that the New York City Board of
Corrections should have "had a watchful eye on these
facilities" to prevent such injuries, and that the New
York City Corporation Counsel failed in its "duty to
advise the city on legal matter[s] . . . [and] failed in its
duty to protect prison inmates from" harm. Id.
seeks punitive and compensatory damages, measured at $300
million plus all present and future medical expenses.
Id. at 5.
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 (2009) (quoting Bell Ail.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When, as
here, a plaintiff proceeds pro se, a court must
liberally construe the plaintiffs pleadings and briefs,
"reading such submissions 'to raise the strongest
arguments they suggest.'" Bertin v. United
States, 478 F.3d 489, 491 (2d Cir. 2007) (quoting
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994))
(internal citations 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) (citing
Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
But, although courts are "obligated to draw the most
favorable inferences that [a pro se plaintiffs]
complaint supports, [courts] cannot invent factual
allegations that he has not pled." Chavis v.
Chappius, 618 F.3d 162, 170 (2d Cir. 2010).
Claims Against New York City Agencies
SAC names the New York City Corporation Counsel and the New
York City Board of Corrections as defendants. SAC at 1. The
New York City Charter states that "[a] 11 actions and
proceedings for the recovery of penalties for the violation
of any law shall be brought in the name of the City of New
York and not in that of any agency, except where otherwise
provided by law." N.Y.C. Admin. Code & Charter Ch.
16 § 396. It is, therefore, well-established law that an
agency of the City of New York "lacks independent legal
existence and is not a suable entity." Merced v.
City of New York, No. 14 Civ. 6285 (WFK), 2014 WL
5682516, at *1 (E.D.N.Y. Nov. 3, 2014); see also, e.g.,
Colon-Rodriguez v. New York City Dep 't of Corr.,
No. 07 Civ. 8126 (GBD), 2009 WL 995181, at *5 (S.D.N.Y. Apr.
13, 2009) (dismissing claims against the Board of Corrections
as a non-suable entity).
making "reasonable allowances to protect [a] pro
se litigant, " Abbas, 480 F.3d at 639,
the Court construes Maldonado's claims against the
Corporation Counsel and the Board of Corrections as, instead,
claims against the City of New York. See, e.g., Harrison
v. New York City Admin, for Children's Servs., No.
02 Civ. 947 (RCC) (RLE), 2003 WL 21640381, at *6 (S.D.N.Y.
July 7, 2003) (granting pro se plaintiff leave to
amend to name the City of New York as the proper party),
report and recommendation adopted, 2003 WL 22271219
(S.D.N.Y. Sept. 30, 2013).
as discussed below, the Court finds that Maldonado fails to
state facts sufficient to plead municipal liability.
Therefore, granting Maldonado leave to further amend his
complaint would be futile. McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007)
("A district court has discretion to deny leave [to
amend] for good reason, including futility .. ..").