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McCray v. Lee

United States District Court, S.D. New York

March 29, 2018

LIONEL McCRAY, Plaintiff,

          Lionel McCray Auburn, NY Pro Se Plaintiff

          Bradley G. Wilson, Esq. Office of the Attorney General of the State of New York New York, NY Counsel for Defendants

          OPINION & ORDER

          KENNETH M. KARAS, District Judge

         Plaintiff Lionel McCray (“Plaintiff”), currently an inmate at Collins Correctional Facility, proceeding pro se, filed a Second Amended Complaint (“SAC”), pursuant to 42 U.S.C. § 1983, against Superintendent William Lee (“Lee”), Watch Commander Lt. Plimley (“Plimley”), and Sergeant Kutz (“Kutz, ” and collectively, “Defendants”), alleging violations of Plaintiff's and other similarly situated inmates' rights under the Eighth Amendment and New York State law. (See SAC (Dkt. No. 60).)[1] Before the Court is Defendants' Motion To Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (the “Motion”). (See Notice of Defs.' Mot. To Dismiss (Dkt. No. 64)); Mem. of Law in Support of Defs.' Mot. To Dismiss (“Defs.' Mem.”) (Dkt. No. 65).) For the reasons to follow, Defendants' Motion is granted.

         I. Background

         The Court assumes the Parties' familiarity with the facts and the procedural history of this case, as described in McCray v. Lee, No. 16-CV-1730, 2017 WL 2275024 (S.D.N.Y. May 24, 2017). The Court will therefore recount only the information necessary to resolve the instant Motion and the new allegations contained in the SAC.

         A. Factual Background

         The following facts are drawn from Plaintiff's SAC and are taken as true for the purpose of deciding the instant Motion. Plaintiff was a convicted prisoner incarcerated at Green Haven Correctional Facility (“Green Haven”) during the time of the alleged events. (SAC II(A).)[2]

         On February 20, 2014, at approximately 10:10 a.m., Plaintiff was on “a call-out list [for keeplock recreation] and escorted by . . . Kutz to the doorway of the G and H block [recreational] yard” of Green Haven. (Id. II(A)-(C); II(D) ¶ 14.) Kutz “gave Plaintiff . . . a direct [o]rder to proceed into the” yard “to observe a limited one hour a day exercise.” (Id. II(D) ¶ 14.) Snow that had fallen in the yard “melted by day creating run-off's [sic] that later refroze by night, forming ice” and “fresh snow covered prior formed ice.” (Id. II(D) ¶ 10.) Plaintiff was “walk[ing] down the narrow path walkway between H block and the snow covered handball court. . . [and] tr[ying] to avoid an about three feet long frozen solid sheet of ice on the yard walkway floor, ” when he “slipped on the frozen sheet of ice and fell.” (Id. II(D) ¶ 14.) “[I]n an attempt to save his hand and face from injury, ” Plaintiff “folded himself . . . and braced for impact with the walkway floor, thereby landing on his left shoulder.” (Id.) Upon impact, “Plaintiff heard a pop from his ankle area.” (Id.)

         “Kutz was not available in the yard, ” and “‘[I]nmate Webley' came to help Plaintiff up.” (Id. II(D) ¶ 15.)[3] “Plaintiff limped back to E block” where he “remov[ed] his boot and show[ed] [a correctional] officer his swollen left ankle, ” and “requested an emergency sick-call.” (Id. II(D) ¶ 16.) A doctor at Green Haven “took an incident report and issued Plaintiff a bandage and some painkillers.” (Id.) “Plaintiff's health care provider ordered an [x]-ray and MRI after Plaintiff filed a grievance for lack of adequate medical care and the horrendous conditions in the facility's yard.” (Id.)

         Plaintiff avers that “[t]here was no snow storm in progress at the time of [his] injuries, ” (id. II(D) ¶ 15), and that Kutz, “who[] was charged with supervision of . . . [i]nmates['] one hour exercise in the facility's G and H block yard on February 20[], 2014, showed deliberate indifference to [i]nmates['] safety” by allowing the yard and walkways to remain “covered with ice and snow.” (Id. II(D) ¶ 12.) Kutz was “the last in the chain-of-authorities to ‘inspect' the G and H block yard, [and] knew of the deteriorating yard condition.” (Id.; see also Id. II(D) ¶ 19(c) (alleging Kutz “inspected the G and H yard” and was “well aware of the severe danger of deteriorating winter conditions within the yard).) Nonetheless, Kutz “disregarded any need to take any corrective measures to fix the unsafe conditions within the yard, before opening it for use for keeplock [i]nmates['] exercise.” (Id. II(D) ¶ 19(c).) Plaintiff contends that Kutz also “showed deliberate indifference when he gave Plaintiff . . . a direct [o]rder to proceed into the . . . yard . . . under said deteriorating conditions.” (Id. II(D) ¶ 13.) “[D]ays after Plaintiff filed a grievance regarding inadequate medical care for his yard injuries and the hazardous conditions within the facility's yards, ” Kutz spoke to Plaintiff about the grievance and asked if Plaintiff intended to sue. (Id. II(D) ¶ 19(c).) Plaintiff replied “yes, ” and in response, “Kutz laughed and said ‘you not [sic] going to get any money and nothing is going to happen.'” (Id.) Kutz “then walked away, despite seeing that Plaintiff had suffered and was suffering serious injuries from a swollen left ankle.” (Id.)

         Plaintiff further alleges that Lee, as Superintendent of Green Haven, “was responsible for the policy making, operations, management, care[, ] and custody of the convicted prisoners housed at [Green Haven], ” and was “also ultimately responsible for the training and supervision of the correctional officers employed at Green Haven.” (Id. II(D) ¶ 2.)[4] Plaintiff contends “Lee exercised deliberate indifference to the health, safety[, ] and limited exercise needs of the [i]nmates . . . when he created a policy and custom of no snow and ice removal from the facility's recreational yards during the winter months, ” (id. II(D) ¶ 3), and “not installing winter snow and ice removal access ways or route[s], ” (id. II(D) ¶ 7). Lee's policies also included “closing down the facility's C, D[, ] and J block yard for entire winter seasons” and “restricted access to the facility's only in-door [sic] [gym].” (Id. II(D) ¶ 3.)

         Plaintiff also alleges that Plimley is “an agent of” Lee's and is “responsible for implementing” policies and customs at Green Haven related to snow and ice removal. (Id. II(D) ¶ 4.)[5] According to Plaintiff, Plimley had “authority to prevent harm to facility [i]nmates by authorizing facility recreational yards safe for use” and “perform[ing] . . . necessary inspections.” (Id.) Plimley allegedly “showed deliberate indifference to the deteriorating conditions of hazardous piles of snow and ice in the facility's yards during the winter months of 2014” and “[o]rdered” the F and H yards “safe for keeplock [i]nmates exercise under hazardous deteriorating conditions.” (Id. II(D) ¶ 5.)

         According to Plaintiff, Lee and Plimley “had actual and constructive knowledge of the dangerous winter conditions” that resulted from their policies and customs because the “hazardous conditions [were] easily visible from the facility's long hallways and through the windows.” (Id. II(D) ¶ 7.) Plaintiff avers that his grievance filed with Lee after his slip and fall further demonstrates “deliberate indifference” and a “disregard . . . for adequate corrective measures or a change in policy and custom.” (Id. II(D) ¶ 19(a).) Additionally, other “[i]nmates had filed grievances regarding this custom[, ] practice[, ] and policy” and “Defendants failed to take any corrective actions or change . . . [the] policy and custom.” (Id. II(D) ¶ 7; see also Id. II(D) ¶ 19(a) (same).)

         Plaintiff alleges Defendants Lee and Plimley were deliberately indifferent to “[i]nmates['] need for a safe limited daily exercise” and had “the intent to deter [i]nmates['] outdoor exercises by allowing months of hazardous winter accumulation of snow and ice to remain unremoved.” (Id. II(D) ¶ 8.) Their policies and customs “obstructed travel [and] deni[ed] movement within facility yards and also obstructed access to yard exercise equipment.” (Id. II(D) ¶ 6.) This snow and ice “eliminated foot traction and posed a deadly risk of substantial harm to yard users, ” and put “[i]nmates in need of daily exercise in a dilemma of abandoning limited yard exercise or risk[ing] the hazardous conditions.” (Id. II(D) ¶ 8.) Ignoring “winter snow and ice” accumulation, (id. II(D) ¶ 11), combined with the intentional closing of the yards in C, D, and J block, restricted access to the indoor gym, and the facility being at maximum capacity, caused “overcrowding” in the yards that were open, (id. II(D) ¶¶ 9, 11), and an “obstacle course” of snow and ice, (id. II(D) ¶ 11). “[A]ll together, ” these policies “had a mutually enforcing combined effect of a systematic intent to det[e]r and discourage facility [i]nmates from limited exercise and [showed] disregard for health and safety.” (Id. II(D) ¶ 9.) Plaintiff alleges that “[t]he deprivation of a safe and hazard free prison recreational yard, for limited exercise, deprived Plaintiff . . . of the minimum measures of life's necessities, such as limited daily exercise and [a] hazard free exercise environment, health[, ] and safety.” (Id. II(D) ¶ 11.)

         Plaintiff alleges his Eighth Amendment rights were violated by these policies, which were intended to deny inmates “movement, ” “exercise, ” and “safety.” (Id. II(D) ¶ 19(a).) More specifically, Plaintiff alleges he has suffered “unnecessary exposure to unsafe facility yard conditions, denial of a hazard free limited exercise time . . . denial of access to the facility's indoor [sic] [gym] for limited exercise[, ] and denial of safety and security due to overcrowding within the facility's yards during the winter months.” (Id. II(D) ¶ 19(d).) Plaintiff also alleges his state law rights were violated by Defendants' gross negligence. (Id. II(D) ¶¶ 21-22.)

         Plaintiff contends he is “permanently and severely injured in the regions of his left ankle and left shoulder” and he “suffer[ed] and continue[s] to suffer great bodily and mental ‘pains.'” (Id. II(D) ¶ 17.) Plaintiff had an “extensive tear to his left ankle ligament that lead to swelling . . . and months of physical therapy and steroid injection treatment, ” and “a left shoulder dislocation” and now his shoulder “easily pops in and out of [the] socket at random.” (Id. at III.) Plaintiff requests declaratory and injunctive relief, as well as compensatory and punitive damages and attorney's fees. (See Id. V.)[6] Plaintiff also requests that this Court “charge . . . [D]efendant . . . Lee for the [c]riminal offense of [r]eckless [e]ndangerment in the [f]irst degree.” (Id.)

         B. Procedural History

         Plaintiff filed his Complaint on March 7, 2016. (See Dkt. No. 2.) On May 23, 2016, Plaintiff filed an application for the Court to request pro bono counsel, (see Dkt. No. 8), which the Court denied without prejudice on June 7, 2016, (see Dkt. No. 10). Plaintiff filed an Amended Complaint on August 4, 2016. (See Dkt. No. 20.)

         On January 4, 2017, Defendants filed a Motion To Dismiss and accompanying memorandum of law. (See Dkt. Nos. 44-45.) Plaintiff filed his Opposition to Defendants' Motion on February 1, 2017, (see Dkt. No. 52), and Defendants filed their Reply on February 16, 2017, (see Dkt. No. 53). On May 24, 2017, the Court granted Defendants' Motion To Dismiss and granted Plaintiff 30 days to file an Amended Complaint ...

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