United States District Court, S.D. New York
JON E. GIRODES, Plaintiff,
CITY OF NEW YORK, CAPTAIN FELIX, Defendants.
Attorneys for Plaintiff ANDREW F. PLASSE, P.C. By: Andrew F.
Plasse, Esq. Attorneys for Defendants
ZACHARY CARTER Corporation Counsel of the City of New York
By: Philip R. DePaul, Esq.
W. SWEET U.S.D.J.
the City of New York (the "City") and Captain Felix
("Felix") (collectively, the
"Defendants") have moved, pursuant to Federal Rule
of Civil Procedure 12(b)(6), to dismiss the complaint (the
"Complaint") of plaintiff pro se Jon Girodes
("Girodes" or the "Plaintiff"), in which
he alleges claims of deliberate indifference to serious
medical needs, retaliation, and municipal liability in
violation of 42 U.S.C. § 1983. Plaintiff cross-moved to
amend the Complaint pursuant to Federal Rule of Civil
Procedure 15(a)(2). Based on the facts and conclusions set
forth below, Defendants' motion to dismiss is granted,
and Plaintiff's motion for leave to amend the Complaint
is similarly granted.
commenced this action on September 5, 2017, alleging
deliberate indifference to serious medical needs,
retaliation, and municipal liability in violation of 42
U.S.C. § 1983. Defendants filed the instant motion to
dismiss on February 6, 2018. Andrew Plasse
("Plasse") entered his appearance on behalf of
Plaintiff on March 21, 2018, and filed a cross-motion to
amend the Complaint on April 9, 2018. Upon several
adjournments of the hearing date, the motions were thereafter
argued and marked fully submitted on May 2, 2018.
Complaint sets forth the following facts, which are assumed
true for the purpose of this motion to dismiss. See Koch v.
Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir.
August 4, 2017, Plaintiff and two other inmates requested to
visit the medical clinic (the "Clinic") at the
George R. Vierno Center ("GRVC") on Rikers Island.
Compl. ¶ 1. Shortly after making the request,
"[Felix] said to prepare to be escorted to the
clinic." Compl. ¶ 3. Plaintiff then asked if other
inmates were at the Clinic, and learned that inmates from the
general population were at the Clinic. Compl. ¶ 3.
Plaintiff and the two other inmates then expressed concern as
to the amount of time they would have to "wait inside a
cage" before seeing a physician. Compl. ¶ 3.
Plaintiff alleged that normally when he and other inmates
from his housing area visit the Clinic, they are alone
because they hold a security status of closely monitored
cases' ("CMC"), and inmates with CMC status are
prohibited from coinciding with the general population.
Compl. ¶ 3. Felix told Plaintiff and the two other
inmates "go now or you're not going at all,"
and then walked out of the housing area without awaiting
their response. Compl. ¶ 3.
that evening at 10:00 p.m., Plaintiff and the two other
inmates were instructed to "lock-in" their cells
for the evening. Compl. ¶ 4. When Plaintiff and the two
other inmates again requested to visit the Clinic, Felix and
Correction Officer Mayo ("Mayo") entered the
housing unit, allegedly in an aggressive and combative
manner. Compl. ¶ 4. Plaintiff alleges that Mayo yelled
at and forcefully put his body face-to-face with one of the
inmates with the intention of provoking a fight. Compl.
¶ 4. Mayo yelled at another inmate in an intimidating
and aggressive manner, again allegedly attempting to provoke
an altercation. Compl. ¶ 4. Mayo then pointed to
Plaintiff and said "Go into your cell. No. doctor for
you," and "You don't want some of this
asshole." Compl. ¶ 4. Next, Mayo entered the third
inmate's cell and threw all of the inmate's personal
belongings, including his food, on the floor. Compl. ¶
5. Mayo walked out with the inmate's personal radio.
Compl. ¶ 5.
August 5, 2017, Plaintiff alleges that Felix retaliated
against Plaintiff and other inmates in housing area 6-A by
executing a special search' by the Department of
Correction ("DOC") "E.S.U. search team"
in which Plaintiff was forced to subject to a strip search.
Compl. ¶ 22. Plaintiff asserts that this was not a
random search because Felix had announced the forthcoming
strip search as a threat the day before. Compl. ¶ 22.
called 3-1-1 and "DOC's investigative division"
to report his grievances, but no one responded. Compl. ¶
result of the above alleged abuse, Plaintiff suffered harm
and continues to suffer psychological and ...