United States District Court, S.D. New York
OPINION AND ORDER
PAUL OETKEN United States District Judge
Cory McGee, proceeding pro se, filed this action
under 42 U.S.C. § 1983 against Defendants the City of
New York, Commissioner Joseph Ponte and Chief Yolanda Canty
of the New York City Department of Correction, and Warden
Carolyn Saunders and Deputy Warden Sherma Dunbar of the Otis
Bantum Correctional Center. Defendants moved to dismiss the
complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim on which relief can be
granted. (Dkt. No. 12.) McGee failed to respond to this
reasons that follow, Defendants' motion is granted.
following facts are taken from the complaint and are presumed
true for purposes of this motion.
is an inmate detained at the Otis Bantum Correctional Center
(“OBCC”) in East Elmhurst, New York, part of the
Rikers Island complex. (Dkt. No. 2 (“Compl.”) at
1.) Defendant Canty is the Chief of the New York City
Department of Correction (“DOC”). (Compl. at 1.)
Defendant Ponte is the DOC Commissioner. (Compl. at 2.)
Defendant Dunbar is the Deputy Warden of Security at OBCC,
and Defendant Saunders is the Warden of OBCC. (Compl. at 2.)
on the night of October 20, 2016, OBCC was placed on
lockdown, and Plaintiff was locked in his “housing
area.” (Compl. at 3.) On several occasions, Plaintiff
asked prison officials, including Defendant Dunbar, why he
and his fellow inmates were locked in their cells. Dunbar
responded that her superiors had authorized the lockdown.
(Compl. at 3.)
October 29, Defendant Canty conducted a “tour” of
Plaintiff's housing area. Plaintiff asked her why the
inmates were locked in their cells and “also tried to
explain to her that [the inmates] were not getting
recreation, religious services programs, [and] law library
[access].” (Compl. at 3.) Canty responded that
Plaintiff could be released from lockdown if he “g[a]ve
up a sca[l]pel.” (Compl. at 3.)
October 20 until November 4, Plaintiff filed grievances, but
received no response. He then wrote to Defendants Canty,
Ponte, Dunbar, and Saunders to complain about the conditions
of the lockdown. (Compl. at 3‒4.) He also wrote to the
“Board of Corrections” and “Department of
Investigations.” (Compl. at 5.) Beyond that, Plaintiff
did not continue to pursue his grievances. (Compl. at 4, 5.)
filed this suit on December 9, 2016. (Dkt. No. 2.) In July
2017, Defendants moved to dismiss his complaint for failure
to state a claim. (Dkt. No. 12.) The Court granted
Plaintiff's request for a 60-day extension of time to
amend his complaint or otherwise respond to Defendants'
motion. (Dkt. No. 18.) Plaintiff failed to file any response
within this 60-day period. On October 23, 2017, the Court
issued an order informing Plaintiff that Defendants'
motion would be treated as unopposed unless he filed an
amended complaint or opposition by November 17, 2017. (Dkt.
No. 20.) Because Plaintiff has not responded to date,
Defendants' motion is treated as unopposed.
under Rule 12(b)(6) is proper when a complaint lacks
‘factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.'” Haughton v. Clinton,
No. 15 Civ. 1160, 2015 WL 9244398, at *1 (S.D.N.Y. Dec. 17,
2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). “‘A document filed pro se,
' like the complaint here, ‘is to be liberally
construed, and a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.'” Id.
(quoting Boykin v. KeyCorp., 521 F.3d 202, 214 (2d
Cir. 2008)). “Nonetheless, a complaint must contain
‘factual allegations sufficient to raise a right to
relief above the speculative level, ' including ‘an
allegation regarding [each] element necessary to obtain
relief.'” Id. (alteration in original)
(quoting Blanc v. Capital One Bank, No. 13 Civ.
7209, 2015 WL 3919409, at *2 (S.D.N.Y. June 24, 2015)).
a Plaintiff fails to oppose a motion to dismiss a complaint
for failure to state a claim, automatic dismissal is not
merited.” Evans v. Aramark Food, No. 14 Civ.
6469, 2016 WL 1746060, at *2 (S.D.N.Y. Apr. 28, 2016).
Instead, the court must evaluate “the sufficiency of a
complaint . . . based on its own reading of the pleading and
knowledge of the law.” Id. (quoting McCall
v. Pataki, 232 F.3d 321, 322-323 (2d Cir. 2000)).
“In deciding an unopposed motion to dismiss, a court is
to assume the truth of a pleading's factual allegations
and test only its legal sufficiency.”
Haughton, 2015 WL 9244398, at * 1 (quoting Haas
v. Commerce Bank, 497 F.Supp.2d 563, 564 (S.D.N.Y.