Cary v. The City of New York, No. 1:2017cv06443 - Document 16 (S.D.N.Y. 2018)
Court Description: OPINION re: 12 MOTION to Dismiss the Amended Complaint filed by The City of New York. For the foregoing reasons, the Defendant's motion to dismiss is granted, and the Complaint is dismissed without prejudice. (As further set forth in this Order.) (Signed by Judge Robert W. Sweet on 3/27/2018) (cf)
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Cary v. The City of New York ' Doc. 16 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------x JOSEPH CARY , 1 7 Civ . 6443 Plaintiff, OPINION -againstCIT Y OF NEW YORK , et al. , Defendants. ----------------------------------------x APPEARANCES : usl1)C suNY uocuMrt.::T,. !\ , , _ ftLED . . N.. \' ELECfRU.- 1' .;- . I . ; . . Pro Se Plaintiff JOSEPH L. CARY 17R2602 Ulster Correct i onal Facility P . O. Box. 800 Napanoch , NY 12458 ~~~·601nl& = I Attorneys for Defendants ZACHARY W. CARTER Corporation Counsel of the Ci t y of New York 1 00 Church Street New York , NY 10007 By : Christopher Ferreira, Esq . Dockets.Justia.com Sweet, D.J. Defendant the City of New York (the "City" or t he "Defendant" ) , o n its behalf and o n behalf of Jane Doe and J o hn Do e , has moved pursuant t o Federal Rule of Civil Procedure 1 2 (b ) (6 ) to dismiss the pro se complaint (the "Complaint") of plaintiff J o seph Cary ("Cary" or the "Plaintiff" ) , in which the Plaintiff alleges that he was subjected to unc o nstitutional conditi o ns of confinement while he l d i n an intake area at Riker's I s l and for a five-day period from July 1 3, 2017 to July 18, 2017 . Based on the facts and conc l usions set forth below , the City ' s unopposed mo tion to dismiss is granted . I. Facts & Prior Proceedings Plaintiff filed the Complaint on August 7 , 2 017, alleging that he was subjected t o unconstituti o nal conditions of conf in ement whi l e held in an intake area at Riker ' s Is l and for a five - day period from July 13, 2017 to Ju l y 1 8 , 2017 . 1 " Under the so- called ' prison mailbox rule ,' a prose prisoner ' s papers are deemed f il ed when they a r e h a n ded ove r to p r is on off i c i a ls fo r forwar d i n g to the Court . " See S i mmons v . Cripps , No . 12 - CV- 106 , 2013 WL 1 290 2 68 , at *4 n . 5 (S . D. N. Y. Feb. 15 , 2013) (citing Houston v . Lack , 487 U. S . 26 6, 270 (1988)) (finding that the plai n t i f f' s comp l a i nt was deemed filed t he day i t was signed by the plaintiff) . Pl ainti f f si gne d the Compla i nt on Augu st 7 , 2017 , and therefo r e is considered to have filed the Complaint on that date . 1 t. In his Complaint , Plaintiff alleges that he arrived at Rikers Island on Ju l y 13, 2017 after being sentenced to five days in jail for smoking in a park. On July 14, 2017 , Plaintiff was taken to a court hearing, and upon his return to Rikers Island, he was placed in a "hot, dirty, overcrowded cell where the toilet didn't flush, stomach turning smell 11 11 and that featured a "nose pinching, while he awaited housing. Plaintiff alleges that on July 15, 2017 , he complained to unnamed officers that he had not yet been housed, that he had "heat sensitive conditions , 11 that he had been placed in the wrong building, and that he could "no longer withstand the overcrowded , d irt y , and smelling cell because of [his] heat sensitive condition. 11 That same day , Plaintiff blacked out in his cell due to his heat sensitivity. Plaintiff alleges that after he was awoken by a fellow inmate, his nose began to bleed, and that a fellow inmate informed a correction officer on duty of his conditi on. The officer called for medical assistance twice but received no answer, and although she had "no knowledge 11 of his blackout , the officer tended to him with " care and concern . 11 Plaintiff further alleges that he was escorted to the clinic approximately two and a half hours after his blackout incident. Plaintiff saw a prison doctor, and he inf ormed the doctor of his b l ackout event and that his head hurt. The doctor 2 informed him that his nose bleed was the most pressing problem, but that if Plaintiff wanted his head looked at, the doctor would set up an appointment and offer the Plaintiff pain killers. Plaintiff declined both offers for treatment. After seeing the doctor, Plaintiff was escorted to a different cell "closer to the entrance," where the escorting officer told Plaintiff that he could "get some clean air" because the "outside door was open." Sometime shortly after 6 pm on July 15, 2017, Plaintiff was transferred to the C95 building at Rikers Island, and around 7 pm, he was placed in cell #4, where he awaited housing. Plaintiff stayed in cell #4 in the C95 building from the evening of July 15, 2017 ~ntil the morning of July 17, 2017, when he "was moved from the clean cell [he] was in with one other inmate into an overcrowded, dirty, smelling cell where the toilet didn't flush once again." Plaintiff further alleges that, from July 17, 2017 to shortly after 1 am on July 18, 2017, he was unable to "groom himself properly" or "speak to his family," and that he had been unable to sleep due to "the fact of cutting and stabbing and not knowing or trusting people," which allegedly "kept him on his feet." Plaintiff was held in this cell until shortly after 1 am on July 18, 2017, when he was housed in the "18 Lower 'B' Side" housing unit. 3 Defendant filed the instant motion to dismiss on January 2 , 2018 , and the motion was marked fully submitted on February 14, 2018 . No opposition or request for extension was received from the Plaintiff. II. The Applicable Standard On a Rule 12(b) (6) motion to dismiss , all factual allegations in the complaint are accepted as true and all inferences are drawn in favor of the pleader. Mills v. Polar Molecular Corp ., 1 2 F.3d 1170, 1174 (2d Cir . 1993). 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, Corp . v. Twombly, 556 U.S. 662, 663 (2009) (quot ing Bell Atl. 550 U.S. 544, 555 (2007)). A claim is facially plausible when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, (quoting Twombly, 556 U.S. at 663 550 U.S. at 556). In other words , the factual allegations must "possess enough heft to show that the pleader is entitled to relief." Twombly, 550 U.S. at 557 quotation marks omitted). 4 (internal While "a plaintiff may plead facts alleged upon informati o n and belief 'where the belief is based on factual information that makes the inference of culpability plausible,' such allegations must be 'accompanied by a statement of the facts upon which the belief is founded.'" Munoz-Nagel v. Guess, Inc., No. 1 2 Civ. 1312 (ER), 2013 WL 1809772, at *3 (S.D.N.Y. Apr. 30, 2013) (quoting Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010)); Prince v. Madison Square Garden, 427 F. Supp. 2d 372, 384 (S.D.N.Y. 2006); Williams v. Calderoni, 11 Civ. 3020 (CM), 2012 WL 691832, at *7 (S.D.N.Y. Mar. 1, 2012)). The pleadings, howe v er, "must contain something more than a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Twombly, 550 U.S. at 555 (citation and internal quotation omitted). In considering a motion to dismiss, "a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and d oc uments incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). 5 III. The Defendant's Motion to Dismiss Plaintiff's Complaint Is Granted Construing the Complaint liberally , the Plaintiff has See failed to state any claim upon which relief may be granted. McEachin v . McGuinnis , 357 F.3d 197, 200 (citation omitted) (2d Cir. 2004) ("[W]hen the plaintiff proceeds prose , as in this case, a court is obliged to construe his pleadings liberally, particularly when they allege civil rights violations ." ) . The City has submitted authorities sufficient to establish that Cary has failed to exhaust administrative remedies as required by the Prison Litigation Reform Act "PLRA"), 42 U. S . C. § (the 1997(e)(a) ; to allege facts showing that the Defendants acted with deliberate indifference to Plaintiff 's health and safety or to a serious medical condition ; to allege facts showing that Plaintiff ' s alleged injury arose from some official policy or pract i ce giving rise to municipal liability; and to participate in a physical, as required by the PLRA , U.S.C. § 42 1997 (e) (c) . The PLRA provides , in relevant part, that "[n] o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983] or any other Federal law, by a prisoner confined in any jail, prison , or other correctional facility until such 6 administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). As such, exhaustion of administrative remedies is a prerequisite to the present suit. See Porter v. Nussle, 534 U.S. 516, 524 1290268, at *7 (2002); see also Simmons, 2013 WL (noting that Plaintiff's failure to exhaust administrative remedies is an affirmative defense). "Where a plaintiff concedes lack of exhaustion, or non-exhaustion is otherwise apparent from the face of the complaint, the Court may decide the exhaustion issue on a Rule 12(b) (6) motion to dismiss." Simmons, 2013 WL 1290268, at *8. Moreover, "dismissal on the basis of failure to exhaust is mandatory, inmate's claims can only proceed. [and] an . if, as to each claim, he has exhausted all available administrative remedies, including all appellate remedies provided within the [New York City Department of Correction] system." Id., at *7. Here, the relevant administrative procedures are as follows. The Department of Cor recti on 's Inmat e Grievance and Request Program ("IGRP"), set forth in Department of Correction Directive 3376 , requires inmates who wish to file a grievance to submit a form to grievance staff within ten business days of the incident giving rise to the grievance. 2 See Garvin v. Rivera, No. Judicial notice has been taken of the IGRP and the foregoing materials related to the procedures for exhausting administrative remedies . See Fed . R. Evid . 20 1 ("A judicially noticed fact must be one not subject to reasonable 7 13-CV-7054, 2015 WL 876464, at *3 (S.D.N.Y. Feb. 2 8 , 2015). Within fi v e business days o f recei v ing the f o rm, grie v ance staff must provide an informal resolution, (see IGRP § IV(G) (1)), af t er which the inmate will have fi v e business days to appeal and request a formal hearing, (see IGRP § IV(G) (5) (b)). The f o rmal hearing is c onducted bef o re the Inmate Grievance Resolution Committee, which issues a written disposition within five business days. ( See IGRP § I V (I) ( 2) . ) Finally, within five business days of the commanding officer's de c ision, an inmate may appeal to the Central Office Re v iew Committee, which must render a disp o sition within fifteen days of receipt of the appeal. ( See IGRP § IV ( J) ( 5) . ) "[A] n inmate may appeal if he d o es n o t receive a timely disp o sition at an y stage" of the process. Garvin, 2015 WL 8 76464, at * 3 (internal quotation marks omitted ) . "The administrati v e process is c omplete only when the [Central Office Review Committee] has issued its disposition." Id. Plaintiff has failed to exhaust all available administrative remedies bef o re commen c ement o f the instant suit, dispute i n that i t is eithe r (1 ) genera l ly known within the t erritorial jurisdi ct i on of the trial cou r t or (2) capable o f accurate a nd r eady determination by resort to sour ces wh ose accuracy cannot r ea sonab ly be quest i oned." ) ; see a lso Chri s tman v . S ki nner , 468 F. 2d 72 3, 726 (2d Ci r. 1972) (holding it proper fo r t r i al cou r t to take j udicial notice of sta t e p r ison regulations concerning books and magazines) . 8 thus dismissal is mandatory. The time period pertaining to Plaintiff's underlying grievances is July 13, 2017 to July 18, 2017. Plaintiff signed his Complaint on August 7, 2017, and mailed it on August 21, 2017. Therefore, even if Plaintiff acted expeditiously, it would take approximately five or six weeks from the filing of the initial grievance to complete the mandated grievance process. Even assuming Plaintiff filed his grievance on July 13, 2017, and if there was no delay at any stage of the process, it would have been impossible for Plaintiff to proceed through the entire grievance process, including all appeals, before Plaintiff filed the Complaint on August 7, 2017. Accordingly, Plaintiff has failed to exhaust his administrative remedies, and on this basis alone, Defendant's motion is granted and the Complaint is dismissed without prejudice. See Price v. City of New York, No. 11 Civ. 6170 (TPG), 2012 WL 3798227, at *3 (S.D.N.Y. Aug. 30, 2012) (holding that it would have been impossible for the plaintiff to have pursued his grievance through all steps of the procedure in the 21 days between the alleged incident and the filing of his complaint). Moreover, based on the City's authorities, which are are appropriate and unopposed, Cary has similarly failed to state a claim under federal law relating to Defendant's alleged 9 . ' . deliberate indifference to Plaintiff's serious medical condition; to demonstrate that Plaintiff's injury arose from some official policy or practice giving rise to municipal liabilit y ; and, to sufficiently allege that . Plaintiff has suffered a physical injury, as required by the PLRA. Because Plaintiff has failed to state a claim arising under federal law, Plaintiff's request that supplemental jurisdiction be extended o v er his state law claims is declined. IV. Conclusion For the foregoing reasons, the Defendant's mo tion to dismiss is granted, and the Complaint is dismissed without prejudice. It is so ordered. New York, NY Marchi 2018 7, U.S.D.J. 10
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