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Girodes v. City of New York

United States District Court, S.D. New York

July 26, 2018

JON E. GIRODES, Plaintiff,
v.
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.

          OPINION

          ROBERT W. SWEET U.S.D.J.

         Defendants 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.

         I. Prior Proceedings

         Plaintiff 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.

         II. The Facts

         The 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. 2012).

         On 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.

         Later 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.

         ORDER

         On 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.

         Plaintiff called 3-1-1 and "DOC's investigative division" to report his grievances, but no one responded. Compl. ¶ 23.

         As a result of the above alleged abuse, Plaintiff suffered harm and continues to suffer psychological and ...


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