United States District Court, S.D. New York
OPINION AND ORDER
EDGARDO RAMOS, U.S.D. JUDGE.
Santana (“Plaintiff”), acting pro se and
in forma pauperis, brings this action against the
City of New York (“City”), Commissioner Joseph
Ponte, Warden Kenneth Stukes, and Deputy Warden Robert Kelly
(collectively “Defendants”), pursuant to 42
U.S.C. § 1983. Plaintiff alleges that the conditions of
his confinement at the Otis Bantum Correctional Center
(“Bantum”) violated his constitutional rights and
that he was housed in punitive segregation without due
process. Defendants bring the instant motion to dismiss the
Complaint pursuant to Federal Rule of Civil Procedure 12(c).
For the reasons set forth below, the Defendants' motion
to dismiss is GRANTED.
construed, Plaintiff principally alleges that he was subject
to unconstitutional conditions of confinement at Bantum's
Enhanced Supervision Housing (“ESH”) on Rikers
Island from April 15, 2015 to December 15, 2015.
Plaintiff's Opposition Memorandum to Defendants'
Motion to Dismiss (“Opp. Mem.”) (Doc. 37), at 4.
Specifically, Plaintiff claims that he was placed in ESH
where detainees are locked up in continuous cycles of 24
hours in their cells followed by 7 hours outside of their
cells. During the 24-hour lock-up period, detainees are not
afforded time to shower or an hour for recreation.
Plaintiff's Complaint (“Compl.”) (Doc. 2) at
3. He alleges that no one ever cleaned his cell even though
his cell was searched every week. Opp. Mem. at 6. Plaintiff
also claims that detainees were subjected to excessive and
unjust beatings and were denied prompt medical attention.
Compl. Ex. A. Specifically, he describes an incident during
which he was severely beaten by several correction officers
and thereafter denied medical attention for the injuries he
suffered. Opp. Mem. at 7-8. He further alleges that
he ate two out of three meals in his cell and that the food
was not served at the prescribed temperature as mandated by
the health code. Id. at 3. Plaintiff also claims
that there were prolonged delays in delivering inmates in ESH
to the visiting area, and that they were kept in their cells
even when the temperature exceeded 90 degrees. Id.
Ex. A. Plaintiff claims that these conditions, as well as the
fact that detainees housed in ESH are not allowed to have a
representative on the Inmate Council, demonstrate that
detainees in ESH were actually subjected to punitive
segregation in violation of the Eight Amendment. Id.
at 3; Ex. A. Punitive segregation is intended as a response
to an offense committed by an inmate while he is
incarcerated. See 40 R.C.N.Y. § 1-17(a).
result of these conditions, Plaintiff states he suffers from
“[d]epression, [i]solation, despair, disorientation,
hal[l]ucinations, depr[i]vation of senses, hearing, sight,
smell” and is “unable to think and put things in
perspective [and] seeing ghost[s] at night.” Compl. At
3. He also alleges that he did not receive any medical care
for these issues while in confinement. Id. Plaintiff
is seeking $8 million in damages for treatment and care of
these afflictions, all of which were allegedly caused by the
unconstitutional conditions of his confinement. Id.
Plaintiff alleges a violation of his constitutional right to
due process stemming from his transfer to ESH on April 15,
2015, without any prior notification or administrative
hearing. Opp. Mem. at 3-4. Plaintiff claims that there was no
pre-transfer event that could have justified the transfer.
Id. at 3. Although he concedes that during his
pretrial detention he had three previous altercations with
other inmates which caused his security classification to
increase from 20 to 30, these altercations were remote in
time, having taken place between March 2014 and September
2014. Id. Plaintiff further alleges that he had no
more altercations between September 2014 and the date of his
transfer to ESH seven months later, received no more
citations, and had his security classification level
decreased from 30 to 17 in the seven months preceding his
transfer to ESH. Id. Plaintiff asserts that the only
reason given for his placement in ESH was his criminal
history. Compl. at 5.
only after being confined in ESH for two weeks that Plaintiff
was afforded a hearing to oppose his transfer. Opp. Mem. at
4. At that hearing, Plaintiff claims that he was not provided
any assistance and was not allowed to call any witnesses to
testify on his behalf. Thereafter, Plaintiff alleges that
hearings would take place every forty-five days to determine
whether to continue his placement in ESH. His placement was
extended after every subsequent hearing despite the fact that
his only disciplinary citation during this period was for a
violation of the smoking ban. Id. at 5. Plaintiff
alleges that he tried to file a grievance regarding his
placement in ESH by writing directly to Warden Kenneth
Stukes, Deputy Warden Robert Kelly, and the New York City
Board of Correction, but was informed that his placement at
ESH was not a grievable issue. Compl. at 4.
addition to monetary damages, Plaintiff is seeking injunctive
relief ordering the Department of Corrections to change its
practices concerning the operation of ESH, Plaintiff's
removal from ESH, and treatment for Plaintiff's
afflictions mentioned above. Id. at 5.
filed the instant action on August 24, 2015. See
Compl. The Complaint did not include an allegation that
Plaintiff had been beaten by correction officers. Defendants
filed their answer on April 22, 2016. Doc. 15. Defendants
filed an amended answer on August 18, 2016. Doc. 25. On April
4, 2017, this Court granted Defendants' order to show
cause why this action should not be dismissed for want of
prosecution pursuant to Federal Rule of Civil Procedure 41(b)
based on Plaintiff's failure to keep the Court and
Defendants apprised of his current residence. Doc. 28. That
same day, Plaintiff filed a letter providing his current
mailing address and explaining that while he was
incarcerated, the documents pertaining to the case were lost.
8, 2017, Defendants filed a motion to dismiss the Complaint
pursuant to Rule 12(c). Doc. 30. Plaintiff filed an
opposition to Defendants' motion on August 14, 2017.
See Opp. Mem. Defendants' reply memorandum in
support of the motion to dismiss was filed on September 15,
2017. Doc. 43.
Rule 12(c) Motion to Dismiss Standard
12(c) provides that “[a]fter the pleadings are
closed--but early enough not to delay trial--a party may move
for judgment on the pleadings.” Fed.R.Civ.P. 12(c). The
Court applies the same standard of review to a Rule 12(c)
motion as it does to a motion to dismiss for failure to state
a claim upon which relief can be granted under Rule 12(b)(6).
Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d
Cir. 2006) (citing Karedes v. Ackerley Grp. Inc.,
423 F.3d 107, 113 (2d Cir. 2005)). On a motion to dismiss
pursuant to Rule 12(b)(6), the Court is required to accept as
true all factual allegations in the complaint and to draw all
reasonable inferences in the plaintiff's favor.
Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014).
However, the Court is not required to credit legal
conclusions, bare assertions or conclusory allegations.
Ashcroft v. Iqbal, 556 U.S. 662, 678-81 (2009)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). To survive a motion to dismiss pursuant to Rule
12(b)(6), a complaint must contain enough factual matter to
state a claim to relief that is plausible on its face.
Id. at 678 (citing Twombly, 550 U.S. at
570). A claim is facially plausible “when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). Accordingly, a plaintiff
is required to support his claims with sufficient factual
allegations to show “more than a sheer possibility that
a defendant has acted unlawfully.” Id. If the
plaintiff has not “nudged [his] claims across the line
from conceivable to plausible, [the] complaint must be
dismissed.” Id. at 680 (quoting
Twombly, 550 U.S. at 570).
Pro Se Plaintiff
same standard applies to motions to dismiss for pro
se plaintiffs. See Zapolski v. Fed. Repub. of
Germany, 425 F. App'x 5, 6 (2d Cir. 2011). The Court
remains obligated to construe a pro se complaint
liberally, and to interpret a pro se plaintiff's
claims as “rais[ing] the strongest arguments that they
suggest.” Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474 (2d. Cir. 2006) (citing Pabon v.
Wright, 459 F.3d 241, 248 (2d Cir. 2006)). The
obligation to be lenient while reading a pro se
plaintiff's pleadings “applies with particular
force when the plaintiff's civil rights are at
issue.” Jackson v. N.Y.S. Dep't of Labor,
709 F.Supp.2d 218, 224 (S.D.N.Y. 2010) (citing McEachin
v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)).
Nevertheless, “pro se status ‘does not
exempt a party from compliance with relevant rules of
procedural and substantive law.'”
Triestman, 470 F.3d at 477 (quoting Traguth v.
Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). To survive a
motion to dismiss pursuant to Rule 12(b)(6), a pro
se plaintiff's pleadings still must contain
“more than an unadorned, the
defendant-unlawfully-harmed me accusation.”
Iqbal, 566 U.S. at 678. A pro se complaint
that “tenders naked assertion[s] devoid of further
enhancement” will not suffice. Id. (internal
quotations omitted) (quoting Twombly, 550 U.S. at
42 U.S.C. § 1983
seeks to impose liability on the City pursuant to Section
1983. Compl. at 1. Although a municipality cannot be held
liable under Section 1983 solely on a theory of respondeat
superior, a Section 1983 claim may be brought against a
municipality if the alleged unconstitutional action was the
result of an official policy, practice, or custom. Monell
v. Dep't of Soc. Servs. of City of N. Y., 436 U.S.
658, 690-92 (1978). To state a claim under Section 1983, a
plaintiff must allege that: (1) defendants were state actors
or were acting under color of state law at the time of the
alleged wrongful action, and (2) the action deprived
plaintiff of a right secured by the Constitution or federal
law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.
40, 49- 50 (1999). Section 1983 does not create any rights,
but merely provides “a procedure for redress for the
deprivation of rights [already] established.” Sykes
v. James, 13 F.3d 515, 519 (2d Cir. 1993) (internal
citation omitted). Accordingly, a civil rights action brought
under Section 1983 will stand only insofar as the plaintiff
can prove an actual violation of his rights under the
Constitution or federal law. Singer v. Fulton Cnty.
Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144, 150
construing the Complaint, Plaintiff alleges that he suffered
unconstitutional conditions of confinement and a violation of
his due process rights in connection with his placement in
ESH. Compl. at 3. In Plaintiff's opposition to
Defendants' motion, he alleges new facts that were not
included in his Complaint. Opp. Mem. at 2-8. Most notably, he
alleges that he was beaten by several correction officers.
Id. at 7-8. In addition, Plaintiff seeks to add 27
new defendants and raises a number of new causes of action,
namely: excessive force, deliberate indifference to a serious
medical need, failure to protect, and disability-based
discrimination under Section 504 of the Rehabilitation Act
and the Americans with Disabilities Act. Id. at 1,
7- 8, 9, 17-19. Plaintiff, however, has not sought leave to
amend his Complaint.
plaintiffs may not amend their complaints through their
motion papers.” Anderson v. Davis Polk &
Wardwell LLP, 850 F.Supp.2d 392, 402 (S.D.N.Y. 2012);
see also Soules v. Connecticut Dep't of Emergency
Servs. and Pub. Prot., 882 F.3d 52, 56 (2d Cir. 2018)
(“[A] party is not entitled to amend its complaint
through statements made in motion papers . . . .”)
(quoting Wright v. Ernst & Young LLP, 152 F.3d
169, 178 (2d Cir. 1998)). Despite this restriction,
“the mandate to read the papers of pro se
litigants generously makes it appropriate to consider a
plaintiff's papers in opposition to a defendant's
motion to dismiss as effectively amending the allegations of
the plaintiff's complaint, to the extent that those
factual assertions are consistent with the allegations in the
plaintiff's complaint.” Cusamano v. Sobek,
604 F.Supp.2d 416, 461 (N.D.N.Y. 2009); see also Aponte
v. Buono, No. 11 Civ. 1077 (CBA) (MDG), 2011 WL 6812924,
at *3 (E.D.N.Y. Dec. 28, 2011) (“[T]o the extent
[Plaintiff's opposition to Defendant's motion to
dismiss] contains new facts relevant to [Plaintiff's]
claim against [Defendant], the Court liberally construes the
factual allegations in the original . . . complaint as
effectively amended by this submission.”).
cannot amend his Complaint to add additional causes of
actions in his opposition papers. See Wright, 152
F.3d at 178 (declining to read in Plaintiff's amended
complaint a new cause of action asserted in opposition papers
to a motion to dismiss); see also Mathie v. Goord,
267 F. App'x 13, 14 (2d Cir. 2008) (holding that claim
asserted in a pro se plaintiff's opposition
papers to a motion to dismiss was not encompassed in the
plaintiff's amended complaint); Williams v.
Rosenblatt Sec. Inc., 136 F.Supp.3d 593, 609 (S.D.N.Y.
2015) (“A [pro se] plaintiff cannot amend his
complaint [by adding new or different claims] in response to
a motion to dismiss.”); Bernstein v. City of New
York, No. 06 Civ. 895 (RMB), 2007 WL 1573910, at *10
(S.D.N.Y. May 24, 2007) (holding that “[n]ew claims not
specifically asserted in the complaint may not be considered
by courts when deciding a motion to dismiss” a pro