Mitchell v. City of New York et al, No. 1:2009cv03623 - Document 29 (S.D.N.Y. 2010)
Court Description: OPINION based upon the conclusions set forth above, the motion of the Defendants to dismiss the Amended Complaint is granted. Mitchell is granted leave to replead within 20 days re: 22 MOTION to Dismiss, filed by William C. Thompson, Michael Aaronson, Jani, Thomas Schwenor, David Barbaro, Robert Shaw, City of New York. (Signed by Judge Robert W. Sweet on 9/22/10) (cd)
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Mitchell v. City of New York et al Doc. 29 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------x BENJAMIN MITCHELL, Pla iff, 09 Civ. 3623 OPINION t CITY OF NEW YORK, WARDEN, ROBERT SHAWi (G.R.V.C.) INDIVIDUAL CAPACITY; C.O. JAN I , #17359, (G.R.V.C.) INDIVIDUAL CAPACITYj C.O. HARTi (G.R.V.C.) INDIVIDUAL CAPACITY WILLIAM C. THOMPSON; NYC COMPTROLLER, INDIVIDUAL CAPACITYi MICHAEL AARONSONj NYC COMPTROLLER OFFICE, BUREAU CHIEF; INDIVIDUAL CAPACITY; DAVID BARBARO, NYC COMPTROLLER OFFICE, DIVISION CHIEF; INDIVIDUAL CAPACITY; DOCTOR, THOMAS SCHWENOR, PA; PRISON HEALTH SERVICES, INDIVIDUAL CAPACITY, Defendants. -x A P PEA RAN C E S: Pro Se BENJAMIN MITCHELL #07-a-5226 Upstate Correctional Facility 309 Bare 11 Road P.O. Box 2001 Malone, NY 12943-2931 MICHAEL A. CARDOZO Corporation Counsel of the City of New York 100 Church Street, Room 2-165 New York, NY 10007 By: David A. Rosinus Jr. t Dockets.Justia.com Sweet, D.J. Defendants City of New York (the "Cityll), Warden Robert Shaw ("Warden Shaw") ("Officer Jani") I I Correction Officer Lavdrim Jani former New York City Comptroller William C. Thompson ("Comptroller Thompsonll) I Bureau Chief Michael Aaronson ("Aaronson"), Division Chief David Barbaro (IlBarbaro"), and Physician Assistant Thomas Schwaner (s/h/a Thomas Schwenor) ("Schwaner") Rule 12(b) (6) (collectively, the "Defendants") have moved under I Fed. R. Civ. P. to dismiss the Amended Complaint of Plaintiff Benjamin Mitchell, pro se (IlMitchell" "Plaintiff ll ). or the Upon the conclusions set forth below, the motion is granted, and the Amended Complaint is dismissed. Prior Proceedings Mitchell filed his complaint on April 9, 2009 and the Amended Complaint on October 5, 2009. The Amended Complaint alleges that, on July 12, 2007 at approximately 9:45 p.m., Mitchell IIfell on a wet floor in front of the Television Room" at the George R. Vierno Center (IIG.R.V.C.), Annex 15B on Riker's Island and that there was not 1 a wet floor sign on the floor when slipped, and that Jani "never filed an injury report." Am. Compl. § II.D. ficer leges that, the following day, he saw It also Schwaner, a physician assistant, after "complaining about pain in his back and chest" and that he had a "Medi-port in s chest attached to his main vein,!! and was "very concerned that the fall had detached the connection between the Medi-port and the vein." Id. Schwaner prescribed "Tylenol and muscle relaxers!! for Plaintiff and gave him a note that would enable him to get an extra mattress "to ease his pain. II Id. The Amended Complaint also alleges that Mitchell sent a Notice of Claim to the New York City Comptroller!s Office on July 31, 2007 and that the letter had not been sent out in midAugust of 2007, that he subsequently gave another Notice of Claim to his sister to mail and he received an acknowledgement of the receipt of March 19, 2009. s claim from the Comptroller's Office on Id. Attached to the Amended Complaint is a letter dated October 10, 2007, addressed to him at G.R.V.C. from Aaronson, a bureau chief at the Comptroller's Office, which he says he did not receive until April of 2009 (when it was attached to a subsequent letter from the Comptroller's Office) 2 because he was incarcerated at Downstate Correctional Facility beginning in September 2007. dated Oct. 10 1 Id. & Letter from Michael Aaronson 2007 (attached to the Amended Complaint as an unlabelled exhibit; hereinafter "Aaronson Letter") . The instant motion was marked fully submitted on June 9 1 2010. The Rule 12(b) (6) Standard On a motion to dismiss pursuant to Rule 12(b) (6) factual allegations are accepted as true drawn in favor of the pleader. l 1 and all inferences are Mills v. Polar , 12 F.3d 1170, 1174 (2d Cir.1993). The issue "is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Pond Inc. v. Town of Darien, 56 F.3d 375, 378 (2d r.1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 235-36 (1974)). Though the pleading standard set forth in Rule 8 of the Fed.R.Civ.P. is a liberal one, it is not without its demands: 3 1 [T] pleading standard Rule 8 announces ... demands more than an unadorned, the defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusion or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement. ______________ Ashcroft v. ___ r u.s. 129 S.Ct. 1937 1 1949 (2009) (internal cites and quotes omitted). allege suff Thus, a complaint must ient factual matter to "state a claim to relief that is plausible on s face. Id. II .. TwomblYr 550 U.S. 544 t . v. (quoting -------Bell Atl. 570 (2007)). In meeting this "plausibility standard,lI the plaintiff must demonstrate more than a "sheer possibility" of unlawful action; pleading facts that are "'merely consistent with defendant's liability ... t 'stops short of the line between possibility and plausibility of entitlement to relief.'" (quoting TwomblYr 550 U.S. at 557) Staten Island Univ. .r a i Id. _s_e_e____s_o_ Reddington v. 511 F.3d 126 1 131 (2d r.2007) ("Although the pleading standard is a liberal one, bald assertions and conclusions of law will not suffice. dismissal t To survive the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level." 4 (internal quotation marks and citations omitted)) i Gavish v. Revlon t Inc., No. OO-CV-7291 t 2004 WL 2210269 at *10 (S.D.N.Y. Sept. 30 t 2004) ("[B]ald contentions t unsupported characterizations t and legal conclusions are not well-pleaded allegations and will not defeat a motion to dismiss. lI ) • The Court is not limited to the four corners of the complaint t but may consider outside documents which are integral to it regardless of whether attached to the complaint, so long as the pleader has notice of them or refers to them. Schnall v. Marine Midland Bank, 225 F.3d 263 2000) . " [w] Ie courts general t See 266 (2d Cir. do not consider matters outside the pleadings, they may consider documents attached to the pleadings, documents referenced in the pleadings, or documents that are egral to the pleadings in order to determine if a complaint should survive a 12(b) (6) motion.ft Garcia v. Lewis, 2005 WL 1423253 at *10 (S.D.N.Y. June 16, 2005) . The Amended Complaint Fails To State A Fourteenth Amendment Claim For a pretrial detainee to show a violation of s Fourteenth Amendment rights regarding jail conditions, he must 5 meet a two-prong test. As to the first, objective prong, the plaintiff must show that a deprivation is "sufficiently serious" or that jail conditions impose a Tlsubstantial risk of harm." ous As to the second, subjective prong, the plaintiff must show that the defendants acted with deliberate indifference. See Farmer v. Brennan, 511 U.S. 825, 834 (1994) v. Mori -------='- , 222 F.3d 99, 106 (2d Cir. 2000). see also Cuoco i TI [M]ore than mere negligence" is required to meet the deliberate indifference standard. Cuoco, 222 F.3d at 106 (quoting Weyant v. Okst, 101 F.3d 845, 856 (2d Cir.1996)) i see also, e.g., Wilson v. Se 501 U.S. 294, 305 (1991) (noting that Tlmere negligence" would not satisfy, inter alia, the deliberate indifference standard). Instead, an official must "know[] of and disregard[] an excessive sk to inmate health or safety." Farmer, 511 U.S. at 837. The Amended Complaint Is to establish that the wet floor posed a substantial risk of serious harm, because Tlslippery prison floors, at best, pose a claim of negligence, which is not actionable under the United States Constitution." No. 05 Civ. 9435, 2007 U.S. Dist. LEXIS 57941, at *18 (S.D.N.Y. Aug. 7/ 2007) Maass, 12 F.3d 1444, 1457 ( ting, inter LeMaire v. - - - -ia, Cir. 1993)) i see also Covington v. 6 Westchester County Dep't of Corr., No. 06 Civ. 5369, 2010 U.S. Dist. LEXIS 11020, at *22 (S.D.N.Y. Jan. 25, 2010) (c ing, inter alia, Jennings, 2007 U.S. Dist. LEXIS 57941) i Sylla v. of New York, No. 04 Civ. 5692, 2005 U.S. Dist. LEXIS 31817, at *9 10 (E.D.N.Y. Dec. 8, 2005) ("Courts have regularly held that a wet or slippery floor does not pose an objectively excessive risk to prisoners." (collecting cases)). As in Sylla, Mitchell "has not pleaded facts from which one could infer that the [wet floor] posed an excessively serious him." Sylla, 2005 U.S. st. LEXIS 31817, at *10. sk to His allegations that the floor was wet, that no sign to warn him of s had been placed nearby, and that he fell, do not state a claim as to the objective prong of the deliberate indifference test. See also Wehrhahn v. Frank, No. 04-C-475-C, 2004 U.S. Dist. LEXIS 19060, at *3 4 (W.D. Wis. 2004) lure to place sign warning of wet floor only states a claim of negligence, not a constitutional claim) (cited in Sylla, 2005 U.S. Dist. LEXIS 31817, at *10). The Amended Complaint also fails to state a claim as to the subjective prong that test, which requires that a correction officer know of and the alleged risk. deliberately indifferent to The allegation that Officer Jani "witnessed 7 erwards decided to place [a] big floor fan" on the fall and the floor directed at Plaintiff, and that he did not file an injury report fails to state a claim on the deliberate indifference test's subjective prong. The Amended Compl fails to state a claim on either the subjective or the objective deliberate indifference test. prongs of Mitchell has not asserted facts that would prevent his slip-and-f 1 claim from being properly categorized as "a garden variety tort" that "is not cognizable under Section 1983" as a constitutional violation and that must instead be "litigated in s tat e court. II , 668 F. Supp . 2d 574, 578 (S.D.N.Y. 2009) ting Young v. County of Fulton, 160 F.3d 899, 902 (2d Cir. 1998)). IItort claim ll (Am. Compl. of a wet floor sign direct breach of duty Id. § Mitchell refers to this claim as a § V) and has leged that absence the area where he slipped constituted "a care and [was] also foreseeable [sic]," II.D (internal quotations omitted and capitalization removed) ). Elsewhere in his Amended Complaint, "[n]ot placing a wet floor sign, states that [sic] is something so easy to do, it's just a neglect of duty of care." Id. explicitly referring to most of the basic elements of a state law tort claim ___ 8 __., 53 N.Y.2d 325, 333 (1981)), Mitchell has alleged a state law negligence claim, not a federal civil rights violation arising would be cognizable under 42 e indifference out of del U.S.C. § 1983. The Amended Complaint has alleged that the day after he slipped and Schwaner. 11, Plaintiff received medical treatment from Am. Compl. "Medi port in § II.C. According to Mitchell, he had a s chest attached to s main vein ll at that time and was "very concerned that the fall had detached the connection between the Medi-port and the vein." Id. Schwaner did not take any x-rays, but prescribed "Tylenol and muscle relaxers" for Plaintiff and him a note that would enable him to get an extra mattress "to ease his rd. 11 Construed liberally, Mitchell is attempt to state a Fourteenth Amendment claim of deliberate indifference to a serious medical need. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also , 101 F.3d at 856 (applying the Estelle standard to case with a rial detainee pI iff). The standard for this type of deliberate indifference is nearly identical to the standard discussed above regarding indifference to a risk of harm; in this instance, a pI 9 iberate iff must show that 1) the medical need was sufficiently serious, and 2) defendant was deliberately indifferent to that need. Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). As to the first prong, a medical need is sufficiently . that may produce serious if it is "a condition of urgency . death, degeneration, or extreme pain." Coughlinr 37 F.3d 63, 66 (2d r.1994)). only that he was experiencing "pa he went to see Schwaner. Id. (quoting Hatl:1away v. Mitchell has alleged in his back and chest ll when Although he says that he was "very concerned that the fall had detached the connection between the medi-port [on his chest] and his II (Am. Compl. does not allege that this connection had in § II.C), detached, and he subsequently notes that his medi-port was removed several months later, in November of 2007, apparently without incident. See Id. § III (Plaintiff states that his fear "increased until the medi-port was removed on 11/30/07,11 but that after it was removed "began to feel just a little bit safer"). Mitchell's discomfort, and his concerns, are not the sort of injuries that produce a condition of urgency that could lead to death, degeneration, or extreme pain. ., Henderson v. Doe, No. 98 Civ. 5011, 1999 U.S. Dist. LEXIS 8672, at *2, *6-7 (S.D.N.Y. June 10, 1999) (broken finger not sufficiently serious medical 10 need because was not a condition of urgency that could lead to death, degeneration, or extreme pain) i Grant v. Burroughs, No. 96 Civ. 2753, 2000 U.S. Dist. LEXIS 12917, at *11 12 (S.D.N.Y. Sept. 8, 2000) (plaintiff's allegation that he was two months with a cheek laceration and swollen cheek pain held not sufficiently serious for the same reason) i see also Coqueran v. Eagen, No. 98 Civ. 7185, 2000 U.S. Dist. LEXIS 595, at *10 (E.D.N.Y. Jan. 20, 2000) (discussing Second Circuit cases with examples of delay or denial of medical care that is "sufficiently serious" to survive a motion to dismiss) . As to the sUbjective prong, Schwaner was not deliberately indifferent to Plaintiff's medical need. Mitchell noted that Schwaner prescribed him Tylenol and muscle relaxers, "and also gave Plaintiff a note for an extra Mattress [sic] to ease sleep. s in" and that this type of medication helps him to (Am. Compl. § II.C.) Mitchell's allegation that he did not receive an x-ray on his back, and his claim that his fear "remain[s]" because he has not had an x-ray does not establish the subjective prong. A defendant only acts "with the requisite deliberate indifference when that official 'knows of and disregards an excessive 11 sk to inmate health or safety, '" Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Farmer, 511 U.S. at 837), and "a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment" under the deliberate indifference standard. Estelle, 429 U.S. at 106. Whether or not the leged lure to perform an x-ray creates a valid medical malpractice claim, a constitutional claim alleging deliberate indifference "is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law." 178, 184 (2d Cir. 2003). Smith v. , 316 F.3d Schwaner was plainly not deliberately indifferent to Mitchell's medical needs and even if Mitchell nevertheless believes that Schwaner's failure to order x-rays constituted medical malpractice, that claim is not cognizable under § 1983, since "medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 105-6. For the reasons stated above, the Amended Complaint fails to state a Fourteenth Amendment claim. The Amended Complaint Fails To State A Claim Against Comptroller Aaronson And Barbaro 12 The Amended Complaint alleges that Mitchell sent a Notice of Claim to the New York City Comptroller's Office on July 31, 2007 and that the letter had not been sent out in midAugust 2007 and that he subsequently gave another Notice of Claim to his sister to mail. Am. Compl. § II.D. Mitchell the receipt of his claim from the received an acknowledgement Comptroller's Office on March 19, 2009. He also received the October 10, 2007, acknowledging receipt Aaronson Letter, dat of his Notice of claim, which he says he did not receive until April of 2009 because he was incarcerated at Downstate Correctional Facility beginning in September 2007 but the letter was addressed to him at G.R.V.C. and "the legal mail never followed" him. Id. & Aaronson Letter. The Amended Complaint appears to take issue with Barbaro's letter dated April 16, 2009 (whi Plaintiff has so attached to his Amended Complaint as an unlabelled exhibit; hereinafter "Barbaro Letter lf ), which noted that his" [notice of] claim was filed timelylf and appears to confuse two requirements: General Municipal Law § 50-e(1) (a) 's requirement that the Notice of Claim itself be filed within 90 days of the incident in question (which Plaintiff did do in a timely fashion), and General Municipal Law § 50-i (1) (c) 's requirement that any 13 lawsuit (or special proceeding) be filed within one year and 90 days of the incident (which, appears, Mitchell did not do In a timely fashion) . If construed liberally, the Amended Complaint might be interpreted to claim that Plaintiff "lost (or was severely hampered in) the ability to file a lawsuit," which would constitute a violation of his Due Process rights. Kaye, No. 06 Civ. 6289, 2007 U.S. (S.D.N.Y. Jan. 22, 2007). Ponterio v. st. LEXIS 4105, at *34 The allegation would be that, because the Comptroller's Office did not send the October 2007 letter acknowledging receipt of his Notice of Claim to him at Downstate Correctional Facility, his new address, Mitchell was unable to file a lawsuit concerning his slip-and-fall. See Am. Compl. § II.D. Mitchell does not allege that he contacted the Comptroller's Office to let them know of his change of address but implies that the Comptroller's Office should affirmatively determine his latest address whenever they send him a mailing. Given the applicable law, Mitchell's failure to receive the October 2007 acknowledgement letter did not affect 14 his ability to file a lawsuit. Although General Municipal Law § 50 i(l) (a) does require, as a condition precedent, that a 1 igant have filed a Notice of Claim before bringing any lawsuit or special proceeding, there is no requirement that the Comptroller's Office respond to that litigant's Notice of Claim before a lawsuit is filed arising out See Gen. Mun. Law § 50-i(1) (b) be prosecuted if, inter alia, its subject matter. (action or special proceeding may "at least thirty days have elapsed since the service" of the litigant's Notice of Claim "and adjustment or payment thereof has been neglected or refused") . Even if Mitchell is correct that the Comptroller's Office should be blamed for his lack of timely receipt of the October 2007 acknowledgement letter, that purported fault of the Comptroller's Office did not result in any infringement of his Due Process rights. Even if the Amended Complaint did state a Due Process claim on this basis, it does not identify any individuals from the Comptroller's Office who could be held liable under the law. It alleges that individual Defendants "William C. Thompson, David Barbaro and Michael Aaronson all have Supervisory positions [sic] and should have made sure that mail" reached him in a timely manner. 15 Am. CompI. aintiff's legal § II.D. However, § II [b]ecause vicarious liability is inapplicable to 1983 suits, a plaintiff must plead that each Government ficial defendant, through actions, has violated S.Ct. 1937, 1948 o f f i c i ' s own individual Constitution." , 129 Ashcroft v. I (2009); see also Id. at 1949 (noting that supervisors "may not be held accountable for the misdeeds their agents"); see also _C_o_l_o_n_v . . . . . _ _--=<.._ _ , Cir. 1995) involvement 58 F.3d 865, 873 ("It is well settled in this Circuit that personal defendants in alleged constitutional deprivations is a prerequisite to an award of damages under (quoting (2d v. § 1983.") Smith, 21 F.3d 496, 501 (2d Cir.1994)) Absent direct participation in a constitutional violation, a supervisor may only be liable if he IIcreate[d] a poli or custom under which unconstitutional practices occurred." _B_e_l_l_ _.. . . _v_._M_o_u_n_t___ . . . ___--"'-_ _ , No. 07 Ci v. 1801, 2009 U. S . Dist. LEXIS 54141, at *27 (S.D.N.Y. June 26, 2009) Joseph v. Fischer, No. 08 Civ. 2824, 2009 U.S. 96952, at *40 41 (S.D.N.Y. Oct. 7, 2009). has not alleged direct involvement i see also st. LEXIS The Amended Complaint any of the Comptroller defendants, nor does it allege that anyone created a policy or pract that violated Plaintiff's rights. allege facts sufficient to support a finding 16 As such, he does not liability on behalf of the individual Defendants from the Comptroller's Office. The Amended Complaint Fails To State A Claim For Denial Of Access To The Mails The Amended Complaint alleges that the Notice of Claim had not been sent for approximately half a month after Plaintiff had submitted it for mailingi that he gave another Notice of Claim to his sister to mail; that he did not receive the Aaronson Letter, dated October 10, 2007, until April of 2009, because he had been transferred to Downstate Correctional Facility by the time the response was sent to G.R.V.C.i and that he "believes that someone tampered with the legal mail so that [his] claim would not be heard. It Am. Compl. § II.D. Construed liberally, this portion of the Amended Complaint appears to be attempting to plead that Mitchell's First Amendment right of access to the mails was abridged without sufficient penological justification. See Thornburgh v. Abbott, 490 U.S. 401, 408-13 (1989). However, the alleged delay in the mailing of Mitchell IS Plaintiff. Notice of Claim does not appear to have injured The Comptroller's Office undisputedly received the 17 Notice of Claim by October 10, 2007, based on the Aaronson Letter; and, as a result/ his Notice of Claim was filed timely/ as Barbaro noted in his letter dated April 16, 2009. § II.D & Barbaro Letter. Thus/ no cognizable injury arising out this alleged delay has been stated. Tribble, 226 F. 3d 568/ 573 Am. Compl. (7th See Cir. 2000) so Zimmerman v. ("Allegations of sporadic and short term delays in receiving mail are insufficient to state a cause of action grounded upon the First Amendment.l!) . The Amended Complaint alleges that Mitchell believes "someone" tampered with his legal mail (Am. Compl. § II.D) but it does not allege that any particular correction officer or ty employee was responsible. other Because I! [i]t is well settled in th[e Second] Circuit that personal involvement of defendants in leged constitutional deprivations is a prerequisite to an award of damages under § 1983" F.3d at 873 Colon, 58 (quoting Wright, 21 F.3d at 501», and because Mitchell seeks only monetary damages in this lawsuit Compl. § see Am. V), his failure to identify any defendant as personally involved in the alleged lItampering ll is fatal to his claim. 18 In addition, the allegations concerning tampering do not 'Istate[] a plausible claim for relief" because there is an "'obvious alternative explanation'" based on the well-pleaded facts. Iqbal, 129 S.Ct. at 1950, 1951-2 (quoting Twombly, 550 U.S. at 567). At the time that the Comptroller's Office sent Aaronson's responsive letter to Mitchell at G.R.V.C., he had recently been transferred to Downstate Correctional Facility. See Am. Compl. § II.D. Based on the well-pleaded facts in the Amended Complaint, it appears that his "legal mail never followed" him. Conversely, the Amended Complaint fails to allege any facts to support a tampering claim. The fact that one piece of Mitchell's mail was not forwarded to his new address does not constitute tampering with the mails, nor does it violate Plaintiff's First Amendment rights. See Higgs v. Carver, No. 99-148-C, 2000 U.S. Dist. LEXIS 18930, at *36 37 (S.D. Ind. Dec. 15, 2000) cit ----""'- Zimmerman, 226 F.3d at 573) (allegation that three letters were not forwarded to detainee plaintiff when he was housed at a diagnostic center does not state a cause of action under the First Amendment), aff'd in part, vacated in part on other grounds, 286 F.3d 437 (7 th Cir. 2002). 19 The Amended Compl nt thus fails to state a First Amendment claim. The Amended Complaint Fails To state A Claim Against The City It is well established that a municipality may be liable under three § ements: 1983 only if a plaintiff has pled and proved "(I) an offic policy or custom that (2) causes the plaintiff to be subjected to (3 ) a deni constitutional right. 685 (2d Cir. 1995) 397 (2d Cir. 1983) of a Zahra v. Town of Southold, 48 F.3d 674, I! (quoting Batista v. Rodriguez, 702 F.2d 393, i citing, inter alia, Monell v. New York Ci , 436 U.S. 658, 690 91 (1978)) . The Amended Complaint has failed to allege that Plaintiff's alleged injuries resulted from an unconstitutional municipal policy or practice. I! The Amended Complaint does not even contain a [t]hreadbare recital[] of the elements of" a so called Monell claim, much less provide I! sufficient factual matter. state a claim to relief that is plausible on its face.1! 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555) . 20 . to Iqbal, Conclusion Based upon the conclusions set forth above, the motion of the Defendants to dismiss the Amended Complaint is granted. Mitchell is granted leave to replead within 20 days. It is so ordered. New York, NY September "yY, 2010 U.S.D.J. 21
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