United States District Court, S.D. New York
OPINION AND ORDER
Vincent L. Briccetti United States District Judge.
Cleon Taylor, proceeding pro se and in forma
pauperis, brings this action under 42 U.S.C. §
1983, alleging defendants C.O. Scott, C.O. Rosier, Deputy
O'Neill, Captain Melville, and C.O. Giess violated his
rights under the Eighth Amendment.
pending is defendants' unopposed motion to dismiss the
amended complaint pursuant to Rule 12(b)(6). (Doc. #29).
reasons set forth below, defendants' motion is GRANTED.
Court has subject matter jurisdiction under 28 U.S.C. §
deciding the pending motion to dismiss, the Court accepts as
true all well-pleaded factual allegations in the amended
complaint and draws all reasonable inferences in
plaintiff's favor, as summarized below.
relevant times, plaintiff was incarcerated at Green Haven
a.m. on September 15, 2014, plaintiff asked C.O. Rosier for a
plunger because plaintiff's toilet was clogged with human
waste. C.O. Rosier responded that the facility was on
lockdown for a facility-wide search. C.O. Rosier passed
plaintiff's cell six or seven times throughout the day.
Plaintiff requested the plunger each time but Rosier never
provided the plunger to plaintiff.
11:30 a.m. on September 15, 2014, C.O. Scott came to
plaintiff's cell to ask if he needed medication.
Plaintiff responded that he did not need medication but he
did need a plunger to unclog his toilet. Plaintiff then
showed C.O. Scott the clogged toilet, which plaintiff had
covered with a towel. C.O. Scott continued his rounds.
Plaintiff asked him for the plunger on other occasions that
day. At 6:30 p.m., upon returning from the medical clinic,
plaintiff again asked C.O. Scott for a plunger “because
[his] toilet [wa]s filled with even more feces.” (Am.
Compl. ¶ 11). C.O. Scott told plaintiff to go to his
cell and lock in. Plaintiff did not receive a plunger from
a.m. on September 16, 2014, plaintiff stopped C.O. Hayden and
asked him for a plunger for the clogged toilet. Two hours
later, plaintiff heard C.O. Hayden talking to another inmate
two floors below plaintiff's cell. Plaintiff yelled to
C.O. Hayden to ask for a plunger, but Hayden did not reply.
p.m. on September 16, 2014, while plaintiff was returning to
his cell from the clinic, he saw C.O. Scott. Plaintiff asked
him, “Why was I not allowed to use the plunger and
could I use it now[?]” (Am. Compl. ¶ 16). C.O.
Scott answered that plaintiff could not use the plunger and
that “[h]e was ordered by his captain not to give the
plunger to any inmates.” (Id.).
a.m. on September 17, 2014, plaintiff stopped C.O. Giess,
explained to him that he had no flushing toilet for over
forty-eight hours, and asked him for a plunger. At 11:30 a.m.
C.O. Giess again passed by plaintiff's cell. Plaintiff
asked him if he had forgotten about the plunger. C.O. Giess
responded that he had not forgotten and that he had told the
“A station officer.” (Am. Compl. ¶ 18).
Plaintiff then asked C.O. Giess if he could go to sick call
because he was dizzy and having difficulty breathing. C.O.
Giess said he would let the A officer know of the request.
Thereafter, around 12:30 p.m., plaintiff told a different
corrections officer that he had asked to go to sick call and
added that he wanted to speak to a sergeant. The corrections
officer denied those requests.
September 17, 2014, at 7:00 p.m., plaintiff stopped Deputy
O'Neill as he was walking by plaintiff's cell.
Plaintiff explained to Deputy O'Neill that
plaintiff's toilet had been clogged for over forty-eight
hours and told him the difficulty he had had trying to get a
plunger. Specifically, plaintiff told Deputy O'Neill that
C.O. Scott told plaintiff, “[t]he Captain ordered him
not to give out the plunger to [any] inmates.” (Am.
Compl. ¶ 21). Captain Melville was nearby, so Deputy
O'Neill asked him whether he had told C.O. Scott not to
give out plungers to inmates. Captain Melville said,
“No, if anything I would tell the officers to go
ahead and give out the plunger to those inmates who need
it, because the inmates cannot come out of their cell to get
it [themselves].” (Id. ¶ 22). Both Deputy
O'Neill and Captain Melville assured plaintiff he would
receive a plunger.
did not receive a plunger until the following day, September