United States District Court, S.D. New York
G. Gardephe United States District Judge
se Plaintiff Gary Sanders - a former pretrial detainee at the
Anna M. Kross Center ("AMKC") on Rikers Island -
brings this action under 42 U.S.C. § 1983 against the
City of New York (the "City"), AMKC Warden
Max'solaine Mingo, Captain Katia Leon, Correction Officer
Shanika Lewis, physician's assistants Kelly Guy and Susan
Noah, and nurse practitioner Kathleen Lehey (collectively,
"Defendants"). Construed liberally, the Second
Amended Complaint ("SAC") alleges that Defendants
subjected Plaintiff to unconstitutional conditions of
confinement and did not provide constitutionally adequate
medical care, because they did not provide Plaintiff with an
orthopedic mattress to accommodate his back injury. (SAC
(Dkt. No. 11) at 6-7) Plaintiff also asserts a Monell claim
against the City. (Id.)
have moved to dismiss the SAC pursuant to Fed.R.Civ.P.
12(b)(6). (Def. Mot. (Dkt. No. 26)) For the reasons stated
below, Defendants' motion to dismiss will be granted.
alleges that on May 28, 2016 - after his admission to the
AMKC - he was interviewed by Physician's Assistant Susan
Noah. (SAC (Dkt. No. 11) at 6) During the interview,
Plaintiff told Noah that he had a "prior back
injury," suffers from sciatica, and treats the condition
with a "tens machine," which "shoots
electrical pulses into [his] nerves." (Id.)
Plaintiff claims that Noah "refuse[d] to
acknowledge" this information. (Id.)
was later interviewed by Nurse Practitioner Kathleen Lehey.
(Id.) Plaintiff requested "medication" and
an orthopedic mattress as a "special accommodation"
for his back condition. (Id.) According to
Plaintiff, Lehey "ignored" both requests.
further alleges that, "after constantly going to the
clinic complaining [and] seeing  physician assistant Kelly
Guy," he underwent an X-ray and was prescribed naproxen,
an anti-inflammatory drug. (Id. at 6-7) Plaintiff
was later transferred to the Brooklyn Detention Complex,
where he has been prescribed gabapentin for his back pain.
(Id. at 7)
complains that he currently suffers from "extreme back
pain" that runs from his back to his left leg, as well
as alternating numbness and pain "like a million needles
... sticking ... all over [his] leg [and] feet."
(Id.) It is not clear from the SAC whether these
symptoms developed before or after Plaintiffs detention at
23, 2016, Plaintiff filed a grievance - pursuant to the
Inmate Grievance Request Program ("IGRP") at the
AMKC - regarding his back pain and his requests for a
mattress that is "suitable for [a] metal foundation
frame." (Id. at 12) Plaintiff alleges that
there was no response to his grievance. (Id. at 8)
Plaintiff forwarded a copy of his grievance to Warden Mingo
on July 13, 2016, and requested her assistance. (Id.
at 8, 13) The SAC is silent as to whether Warden Mingo
responded to Plaintiffs letter. The SAC does not allege that
Plaintiff took any other steps to exhaust his administrative
remedies. (Id. at 8)
commenced this action on September 20, 2016. The Complaint
names Warden Mingo and Bob Barker - a mattress manufacturer -
as defendants. (Cmplt. (Dkt. No. 2)) On October 25, 2016,
Chief Judge McMahon issued an Order to Amend which identified
certain deficiencies in the Complaint, and granted Plaintiff
leave to file an amended complaint within sixty days. (Oct.
25, 2016 Order (Dkt. No. 6))
Order to Amend explains that - in order to state an
unconstitutional conditions of confinement claim based on
a plaintiff must allege facts showing that (1) he had a
pre-existing medical condition requiring a special bed to
protect against serious damage to his future health; (2) he
made that medical condition known to the prison officials;
(3) he requested a special bed to accommodate such medical
condition; and (4) an official who knew of and disregarded an
excessive risk to the plaintiffs health or safety denied his
request.. .. [A] [plaintiffs] naked assertions that [he]
suffered extreme pain as a result of [an] inadequate bed,
without more, d[o] not meet the standard for pleadings in a
§ 1983 action.
(Id. at 3 (internal quotation marks omitted) (citing
Howard v. City of New York, 12 Civ. 4069 (PAE)
(JCF), 2013 WL 504164, at *2, 4 (S.D.N.Y. Feb. 11, 2013)))
Order to Amend further states that,
[i]n his [C]omplaint, Plaintiff does not allege that his
mattress exacerbated any prior injuries, that he informed
anyone at Rikers Island about a pre-existing injury requiring
a special bed, or that any Defendant refused to accommodate
any medical condition. Plaintiff thus fails to allege facts
showing that any Defendant knew of an excessive risk to his
health and acted with deliberate indifference in disregarding
that risk. Moreover, Plaintiff also fails "to provide
the factual detail necessary to state a claim that he
suffered injuries as a result of the bed." DelaCruz
v. City of New York, No. 15 Civ. 3030 (PAE) (JCF), 2015
WL 2399346, at *2 (S.D.N.Y. May 19, 2015). Plaintiffs
allegations thus fail to state a claim on which relief can be
granted. For these reasons, Plaintiff is granted leave to
amend his complaint to address the deficiencies detailed
The Order to Amend also explains that, [t]o state a claim
under 42 U.S.C. § 1983, a plaintiff must allege facts
showing the defendants' direct and personal involvement
in the alleged constitutional deprivation.... Plaintiff
alleges that he wrote to Warden Mingo regarding his
grievance. But he has not identified any specific individuals
or stated whether any of those individuals were aware of an
excessive risk of injury to Plaintiff. If Plaintiff seeks to
hold any individuals liable under § 1983, he must name
them as defendants in an amended complaint and provide facts
demonstrating that those individuals were personally involved
in the alleged violation of his constitutional rights.
(Id. at 4-5 (internal citations omitted)) The Order
also informs Plaintiff that "the body of Plaintiffs
amended complaint must tell the Court: who violated his
federally protected rights; what facts show that his
federally protected rights were violated; when such violation
occurred; where such violation occurred; and why Plaintiff is
entitled to relief." (Id at 6)
the City of New York is not named as a defendant in the
Complaint, the Order to Amend also explains that, "to
state a § 1983 claim against a municipality, the
plaintiff must allege facts showing: (1) the existence of a
municipal policy, custom, or practice, and (2) that the
policy, custom, or practice caused the violation of the
plaintiffs constitutional rights." (Id. at 4
(citing Bd. of Cnty. Comm'rs of Bryan Cnty. v.
Brown, 520 U.S. 397, 403 (1997); Jones v. Town of
East Haven, 691 F.3d 72, 80 (2d Cir. 2012)))
December 5, 2016, Plaintiff filed the First Amended Complaint
("FAC"), in which he adds the City, Captain Leon,
Officer Lewis, Physician's Assistant Guy, and John and
Jane Doe as defendants. (FAC (Dkt. No. 7)) The case was
assigned to this Court on December 27, 2016. On January 26,
2017, Plaintiff filed the SAC, which removes Bob Barker and
the Doe parties as defendants, and adds Noah and Lehey as
defendants. (SAC (Dkt. No. 11))
October 17, 2017, Defendants moved to dismiss the SAC on the
grounds that Plaintiff has not (1) exhausted his
administrative remedies as required by the Prisoner
Litigation Reform Act, 42 U.S.C. § 1997(e) (the
"PLRA"); (2) stated a Monell claim against
the City; and (3) pled a violation of his constitutional
rights. (Def Mot. (Dkt. No. 26)) Plaintiffs opposition was
due on November 17, 2017. (Oct. 31, 2017 Order (Dkt. No. 30))
Because Plaintiff has not filed any opposition to
Defendants' motion, the motion will be deemed unopposed.
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal. 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)).
These factual allegations must be "sufficient to raise a
right to relief above the speculative level.'"
Rahman v. Fisher. 607 F.Supp.2d 580, 584 (S.DN.Y.
2009) (quoting ATSI Commc'ns. Inc. v. Shaar Fund,
Ltd.. 493 F.3d 87, 98 (2d Cir. 2007)). "In
considering a motion to dismiss ... the court is to accept as
true all facts alleged in the complaint," Kassner v.
2nd Ave. Delicatessen Inc.. 496 F.3d 229, 237 (2d Cir.
2007) (citing Dougherty v. Town of N. Hempstead Bd. of
Zoning Appeals. 282 F.3d 83, 87 (2d Cir. 2002)), and
must "draw all reasonable inferences in favor of the
plaintiff." Id. (citing Fernandez v.
Chertoff, 471 F.3d 45, 51 (2d Cir. 2006)).
complaint is inadequately pled "if it tenders 'naked
assertion[s]' devoid of 'further factual enhancement,
'" Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 557), and does not provide
factual allegations sufficient "to give the defendant
fair notice of what the claim is and the grounds upon which
it rests." Port Dock & Stone Corp. v. Oldcastle
Northeast, Inc., 507 F.3d 117, 121 (2d Cir. 2007).
considering a motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6), a district court may consider the
facts alleged in the complaint, documents attached to the
complaint as exhibits, and documents incorporated by
reference in the complaint." DiFolco v. MSNBC Cable
L.L.C.. 622 F.3d 104, 111 (2d Cir. 2010) (citations
omitted). Additionally, "[w]here a document is not
incorporated by reference, the court may never [the] less
consider it where the complaint 'relies heavily upon its
terms and effect,' thereby rendering the document
'integral' to the complaint." Id.
(quoting Mangiafico v. Blumenthal, 471 F.3d 391, 398
(2d Cir. 2006)).
Plaintiff is proceeding pro se, this Court must construe his
pleading liberally. See Erickson v. Pardus. 551 U.S.
89, 94 (2007) ("A document filed pro se is 'to be
liberally construed.'") (quoting Estelle v.
Gamble. 429 U.S. 97, 106 (1976)). Accordingly, the Court
reads the SAC "to raise the strongest arguments [it]
suggests]." Fulton v. Goord, 591 F.3d 37, 43
(2d Cir. 2009) (quoting Green v. United States, 260
F.3d 78, 83 (2d Cir. 2001)). "As in any other case,
however, the Court accepts as true only factual allegations,
and does not accept as true allegations stating only legal
conclusions." Braxton v. Nichols, No. 08 Civ.
08568 (PGG), 2010 WL 1010001, at *1 (S.D.N.Y. Mar. 18, 2010)
(citing Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009) ("[T]hreadbare recitals of a cause of action,
supported by mere conclusory statements, do not suffice [to
establish entitlement to relief].")).
EXHAUSTION OF ...