Lopez v. N.Y.C. Department of Correction

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ANTHONY LOPEZ, Plaintiff, 19-CV-3887 (CM) -against- ORDERTO AMEND NYC DEPARTMENT OF CORRECTION, et al., Defendants. COLLEEN McMAHON, Chief United States District Judge: Plaintiff, currently incarcerated at Downstate Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants violated his rights. By order datedMay 3, 2019,the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis.1 For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within sixty days of the date of this order. STANDARD OF REVIEW The Court must dismiss a complaint, or portion thereof, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639(2d Cir. 2007). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. SeeFed. R. Civ. P. 12(h)(3).While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,”

1 Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceed in forma pauperis. See 28 U.S.C. §1915(b)(1). Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). BACKGROUND The following facts are taken from the complaint: On December 28, 2019, at 7:00 p.m., at the Manhattan Detention Complex (MDC), Plaintiff “stepped out of the shower box and slipped

in a puddle of water [and] [d]ue to there being no drainage, fell and hurt [his] back and head.” (Compl. at 3.) Fellow prisoners informed correctional staffof thefall, and “[a] short while after Captain Avon arrived,”she asked Plaintiff whether he could “get up”; Plaintiff toldher that he “could not move.” (Id.) Then, “a short while after that,” a medical team arrived and a John Doe doctor “demanded [Plaintiff] to get up.” (Id.) Plaintiff informed the doctor that he “was in pain and . . . couldn’t move.” (Id.)The doctor “touched the back of [Plaintiff’s] head and stated that [his] hair broke [the] fall.” (Id.)The doctor also stated that Plaintiff “did not have a fracture . . . [and] that he was tired of the slip and falls and that he was not going to call E.M.S.” (Id.) After the doctor and the medical team left the area, Captain Avon informed Plaintiff, who

was still on the floor, “that she would make sure Deputy Warden Mitchell [did] not call E.M.S. because she thought that [Plaintiff] was faking.” (Id.) Two hours after the slip and fall, at 9:00p.m., MDC commenced its lock-in of the prisoners; Plaintiff remained on the floor. “[S]oonafter the lights went out at 12:00 a.m., [Plaintiff] managed to get up and was still denied medical attention. . . . At approximately 2:00 a.m., the officer on post stated that the clinic didn’t want [Plaintiff] . . . and [the officer] handed [Plaintiff] a 2 pack of non-aspirin.” (Id.) As of April 22, 2019, the date Plaintiff signed the complaint, he still suffered from neck and back pain as a result of the fall. (Id.) He seeks money damages. DISCUSSION A. New York City Department of Correction (DOC) Plaintiff’s claims against the DOC must be dismissed because an agency of the City of New York is not an entity that can be sued. N.Y. City Charter ch. 17, § 396 (“[A]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by

law.”); Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007); see also Emerson v. City of New York, 740 F. Supp. 2d 385, 396 (S.D.N.Y. 2010)(“[A] plaintiff is generally prohibited from suing a municipal agency.”). In light of Plaintiff’s pro sestatus and clear intention to assert claims against the City of New York, the Court construes the complaint as asserting claims against the City of New York, and directs the Clerk of Court to amend the caption of this action to replace the DOC with the City of New York. See Fed. R. Civ. P. 21. This amendment is without prejudice to any defenses the City of New York may wish to assert. B. City of New York To state a claim against the City of New York,Plaintiff must allege facts showingthat

(1)a municipal policy, custom, or practice (2)caused the violationof his constitutional rights. See Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997).Put simply, Plaintiffmust show that the Cityitself caused the violation of his rights.See Connick v. Thompson, 563 U.S. 51, 60(2011) (relying on Monell v. Dep’t of Soc. Servs. of City of New York,436 U.S. 658, 692 (1978)). Plaintiff does not state any facts suggesting that a City policy, custom or practice caused his injuries to occur. But because “[a] pro secomplaint should not [be] dismiss[ed] without [the Court] granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated,”Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation marks omitted, alterations in original)), the Court grants Plaintiff leave to amend his complaint to state any facts suggesting that a City policy, custom, or practice caused his injuries. C. Deliberate indifferenceto conditions of confinement

The Court construes Plaintiff’s allegations –that he slipped and fell at the MDC and that Defendants denied him adequate medical attention after his fall –as asserting claims that correction officers were deliberately indifferent to the conditions of his confinement that posed a serious threat to his health or safety.As Plaintiff was a pretrial detainee during the events giving rise to his claims, theclaims arise under the Due Process Clause of the Fourteenth Amendment. SeeDarnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). To state a conditions of confinement claim,Plaintiff must satisfy two elements: (1) an “objective” element, which requires a showing that the challenged conditions are sufficiently serious, and (2) a “mental” element, which requires a showing that the officer acted with at least deliberate indifference to the challenged conditions. Id.

The objective element requires a showing that “the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health” or safety, which “includes the risk of serious damage to ‘physical and mental soundness.’” Id.at 30 (quoting LaReau v. MacDougall, 473 F.2d 974, 978 (2d Cir. 1972)). The mental element requires a showing“that the defendant-official acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety.” Id. at 35. The mere negligence of a correctional official is not a basis for a claim of a federal constitutional violation under §1983.See Daniels v. Williams, 474 U.S. 327, 335-36 (1986); Davidson v. Cannon, 474 U.S. 344, 348 (1986). Slipperyfloors “District courts in this Circuit have repeatedly held that, standing alone, a claim that a

prisoner fell on a slippery floor and injured himself fails to satisfy the first prong of a conditions- of-confinement claim.”Strange v. Westchester Cty. Dep’t of Corr., No. 17-CV-9968 (NSR), 2018 WL 3910829, at *3 (S.D.N.Y. Aug. 14, 2018) (collecting cases). Moreover, where a plaintiff fails to allege that a correction officershowed “deliberate indifference to the consequences of his conduct for those under his control and dependent upon him,” Morales v. N.Y.S. Dep't of Corr., 842 F.2d 27, 30 (2d Cir. 1988), the plaintiff fails to state facts showing that the mental element ofa condition-of-confinement claim is satisfied,see, e.g., Strange,2018 WL 3910929, at *1(holding that theplaintiff had failed to show deliberate indifference where healleged that he had slipped and fell upon exiting his cell shower and “he did not have a shower mat to protect him from slipping”);Fredricks v.City of New York, No. 12-

CV-3734 (AT), 2014 WL 3875181, at *4 (S.D.N.Y. July 23, 2014) (holding that “[a] prisoner’s bare complaint about a slippery floor, without more, does not state an arguable claim of deliberate indifference.”); Seymore v. Dep’t of Corr. Servs., No. 11-CV-2254 (JGK), 2014 WL 641428, at *4 (S.D.N.Y. Feb. 18, 2014) (holding that “plaintiff ha[d], at most, alleged that various defendants were negligent in failing to correct conditions, not that any defendant obdurately and wantonly refused to remedy a specific risk to the plaintiff.”). But see Fredricks, 2014 WL 3875181, at *5-6 (concluding that plaintiff with known disability who was subjected to slippery floor stated a constitutional claim). Plaintiff’s assertion that he stepped out of the shower into a puddle of water is insufficient to state a claim of deliberate indifference to theconditions of his confinement. First, apuddle of water Plaintiff, standing alone,did not pose an unreasonable risk of serious damage toa prisoner’s safety. See, e.g.,Strange, 2018 WL 3910929, at *3. Though Plaintiffdid fall because of the water,and the puddle allegedly formed due to a nonexistent drainage system, the condition

itself did not pose aconstitutionally recognized unreasonable risk. Moreover, Plaintiff does not assert that Defendants showed deliberate indifference to an unreasonable risk of serious damage to his safety. Plaintiff therefore fails to state a claim that Defendants were deliberately indifferent to his conditions of confinement with respect to the slippery floor. District courts generally grant a proseplaintiff an opportunity to amend a claim to cure its defects, but leave to amend is not required where it would be futile. See Hill v. Curcione, 657 F.3d 116, 123–24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because the defects in this claim cannot be cured with an amendment, the Court declines to grant Plaintiff leave to amend his conditions of confinement claim as to the slippery floor.

Medical care Plaintiff’s allegations that he was denied constitutionally adequate medical care after his fall must meet the same deliberate indifference test. Where a prisoner alleges that some treatment was provided but that it was inadequate, the objective component focuses on the seriousness of the alleged inadequacy. See Salahuddinv. Goord, 467 F.3d 263280(2d Cir. 2006). Thus, where a prisoner alleges that treatment was inadequate because of delay, for example, the relevant concern is not “the severity of the prisoner’s underlying medical condition,” but the “particular risk of harm faced by a prisoner due to the challenged deprivation of care.” Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003). “[M]ere disagreement over the proper treatment does not create a constitutional claim.” Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998). Plaintiff fails tostate a claim that Defendants denied him constitutionally required medical attention after his slip and fall. Rather, his allegations indicate that he and the John Doe doctor disagreed over the treatment he required. For example, the doctor informed Plaintiff that

he did not have a fracture. But Plaintiff believed he required more care, though he does not state the type of care he was denied.Fatal to this claim is Plaintiff’s failure to allege any facts suggesting that he suffered a specificinjury from the fall that required specifictreatment. That is, Plaintiff does not allege what care Defendants deniedhim. Though he does state that he still feels pain, this allegation, standing alone, does not suggest that Defendants denied him care for any specific injury. While the Court is inclined to dismiss this claim for failure to state a claim, it would not be futile to grant Plaintiff leave to amend. The Court therefore grants him leave to amend his complaint to state any facts suggesting that Defendants failed to provide him medical attention

for a particular injury that he suffered after his fall. LEAVE TO AMEND Plaintiff is granted leave to amend his complaint to detail his medical claims. In the statement of claim, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant named in the amended complaint. Plaintiff is also directed to provide the addresses for any named defendants. To the greatest extent possible, Plaintiff’s amended complaint must: a) give the names and titles of all relevant persons; b) describe all relevant events, stating the facts that support Plaintiff’s case including what each defendant did or failed to do; c) give the dates and times of each relevant event or, if not known, the approximate date and time of each relevant event; d) give the location where each relevant event occurred; e) describe how each defendant’s acts or omissions violated Plaintiff’s rights and describe the injuries Plaintiff suffered; and f) state what relief Plaintiff seeks from the Court, such as money damages, injunctive relief, or declaratory relief. Essentially, the body of Plaintiff’s amended complaint must tell the Court: who violated his federally protected rights; what facts show that his federally protected rights were violated; when such violationoccurred; where such violationoccurred; and why Plaintiff is entitled to relief. Because Plaintiff’s amended complaint will completely replace, not supplement, the original complaint,any facts or claims that Plaintiff wishes to maintain must be included in the amended complaint. CONCLUSION The Clerk of Court is directed to assign this matter to my docket, mail a copy of this order to Plaintiff, and note service on the docket. Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court’s Pro Se Intake Unit within sixty days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 19-CV- 3887 (CM). An Amended Civil Rights Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and hecannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to docket this as a “written opinion” within the meaning of Section 205(a)(5) of the E-Government Act of 2002. SO ORDERED. Dated: May 17, 2019 . New York, New York hie. Iu yh Chief United States District Judge

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

CV. Write the full name of each plaintiff. (Include case number if one has been assigned) AMENDED against: COMPLAINT (Prisoner) Do you want a jury trial? 0mNd—MN L1Yes LINo

Write the full name of each defendant. If you cannot fit the names of all of the defendants in the space provided, please write “see attached” in the space above and attach an additional sheet of paper with the full list of names. The names listed above must be identical to those contained in Section IV.

NOTICE The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual’s full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual’s birth; a minor’s initials; and the last four digits of a financial account number. See Federal Rule of Civil Procedure 5.2.

Rev. 5/20/16

I. LEGAL BASIS FOR CLAIM State below the federal legal basis for your claim, if known. This form is designed primarily for prisoners challenging the constitutionality of their conditions of confinement; those claims are often brought under 42 U.S.C. § 1983 (against state, county, or municipal defendants) or ina “Bivens” action (against federal defendants). L] Violation of my federal constitutional rights L] Other: Il. PLAINTIFF INFORMATION Each plaintiff must provide the following information. Attach additional pages if necessary.

First Name Middle Initial Last Name

State any other names (or different forms of your name) you have ever used, including any name you have used in previously filing a lawsuit.

Prisoner ID # (if you have previously been in another agency’s custody, please specify each agency and the ID number (such as your DIN or NYSID) under which you were held)

Current Place of Detention

Institutional Address

County, City State Zip Code II. PRISONER STATUS Indicate below whether you are a prisoner or other confined person: L] Pretrial detainee L] Civilly committed detainee L] Immigration detainee L] Convicted and sentenced prisoner L] Other:

IV. DEFENDANT INFORMATION To the best of your ability, provide the following information for each defendant. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant. Make sure that the defendants listed below are identical to those listed in the caption. Attach additional pages as necessary. Defendant 1: First Name Last Name Shield #

Current Job Title (or other identifying information)

Current Work Address

County, City State Zip Code Defendant 2: First Name Last Name Shield #

Current Job Title (or other identifying information)

Current Work Address

County, City State Zip Code Defendant 3: First Name Last Name Shield #

Current Job Title (or other identifying information)

Current Work Address

County, City State Zip Code Defendant 4: First Name Last Name Shield #

Current Job Title (or other identifying information)

Current Work Address

County, City State Zip Code V. STATEMENT OF CLAIM Place(s) of occurrence:

Date(s) of occurrence: FACTS: State here briefly the FACTS that support your case. Describe what happened, how you were harmed, and how each defendant was personally involved in the alleged wrongful actions. Attach additional pages as necessary. INJURIES: If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received.

VI. RELIEF State briefly what money damages or other relief you want the court to order. VII. PLAINTIFF’S CERTIFICATION AND WARNINGS By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11. I understand that if I file three or more cases while I am a prisoner that are dismissed as frivolous, malicious, or for failure to state a claim, I may be denied in forma pauperis status in future cases. I also understand that prisoners must exhaust administrative procedures before filing an action in federal court about prison conditions, 42 U.S.C. § 1997e(a), and that my case may be dismissed if I have not exhausted administrative remedies as required. I agree to provide the Clerk's Office with any changes to my address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case. Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Dated Plaintiff’s Signature

First Name Middle Initial Last Name

Prison Address

County, City State Zip Code

Date on which I am delivering this complaint to prison authorities for mailing: