Wheeler v. NYC DOC

• Court: District Court, S.D. New York
• Decided: November 26, 2019
• Docket: 1:19-cv-09689
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK BRETT E. WHEELER, Plaintiff, 19-CV-9689(CM) -against- ORDERTO AMEND NYCDOC; JOHN DOE # 1, Defendants. COLLEEN McMAHON, Chief United States District Judge: Plaintiff, a pretrial detainee currently incarcerated at the George R. Vierno Center (GRVC)on Rikers Island, brings this pro seaction under 42 U.S.C. §1983, alleging that Defendants violated his rights.By order dated November 19, 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 ofthis order. STANDARD OF REVIEW The Prison Litigation Reform Act requires that federal courts screen complaints brought by prisoners who seek relief against a governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a prisoner’s in forma pauperis complaint, or any portion of the complaint, 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

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). 636, 639 (2d Cir. 2007).The court must also dismiss a complaint ifthe 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,”Triestman v. Fed. Bureau of Prisons, 470

F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the“special solicitude”in pro se cases, id. at 475 (citation omitted), has its limits – to state a claim,pro sepleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief. The Supreme Court has held that under Rule 8, a complaint must include enough facts to state a claim for relief “that is plausible on its face.”Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570(2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing

the complaint, the court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,”which are essentially just legal conclusions. Twombly, 550 U.S.at 555.After separating legal conclusions from well-pleaded factual allegations, the court must determine whether those facts make it plausible – not merely possible –that the pleader is entitled to relief.Id.

2 BACKGROUND The following facts are taken from the complaint.On June 6, 2018, while Plaintiff was detained at the GRVC, another prisoner threw hot water at him.An unidentified correction officer failed to “properly protect[]”Plaintiff and correction or medical staff failed to give him “proper medical treatment.”(ECF No. 2, 4.)As a result of the incident, Plaintiff sustained an

injury to his left forearm and chest. Plaintiff brings this action against the New York City Department of Correction (DOC) and a John Doe defendant. Heseeks monetary damages. DISCUSSION A. New York City Department of Correction Plaintiff’s claims against the New York City Department of Correction (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 replaceDOC with the City ofNew York. SeeFed. R. Civ. P. 21. This amendment is without prejudice to any defenses the City of New York may wish to assert.

3 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 violation of 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. Conditions of ConfinementClaims The Court construes Plaintiff’s allegations –that an unidentified correction officer failed

to protect him from another prisoner throwing hot water and that correction or medical staff denied him adequate medical attention for his injuries –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, the claims arise under the Due Process Clause of the Fourteenth Amendment. See Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017).

4 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 35.2 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). Failure to Protect Plaintiff asserts that an unidentified correction officer failed to protect him from a prisoner who threw hot water at him. But his assertions do not show that any correction official knew of an excessive risk to his health and safety and failed to take reasonable measure to

2 See also Lombardo v. Freebern, No. 16-CV-7146 (KMK), 2018 WL 1627274, at *17 (S.D.N.Y. Mar. 30, 2018) (pretrial detainee must allege that a state actor should have known of the risk of harm to him); Taylor v. City of New York, No. 16-CV-7857 (NRB), 2018 WL 1737626, at *12 (S.D.N.Y. Mar. 27, 2018) (“Although Darnell involved a Fourteenth Amendment challenge to a prisoner’s conditions of confinement, its holding applies with equal measure to failure to protect claims.”). 5 protect him.Plaintiff is therefore granted leave to amend his complaint to detail his failure-to- protect claim. Should Plaintiff choose to amend his complaint, he must allege sufficient facts suggesting that correction officials were deliberately indifferent because theyknew of a specific serious risk to Plaintiff’s safety during his detention and took no action to prevent it.Plaintiff must name as defendants the individuals who failed to protect him from harm and allege facts

showing how each person was personallyinvolved. Inadequate Medical Care Plaintiff also claims that he was denied proper medical care for his injuries. But he does not allege facts suggesting that he suffered from a “sufficiently serious”medical condition such as “[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain.”Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998); see Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (noting that standard contemplates “a condition of urgency, one that may produce death, degeneration, or extreme pain”). Nor does Plaintiff allege that correction or medical staff should

have known that his alleged medical issues “posed an excessive risk to [his] health or safety,” and they “recklessly failed to act with reasonable care to mitigate the risk[s],”Darnell, 849 F.3d at 35. Should Plaintiff amend his complaint, he must also allege facts showing that he had a condition that posed a serious risk to his health or safety and that correction or otherstaff members intentionally or recklessly denied him medical attention. Plaintiff must describe his serious medical conditions, name as defendants the individuals who denied or interfered with his medical needs, and allege what each defendant did to violate his rights.

6 D. Application for Pro Bono Counsel Plaintiff also submits an application for the court to request probono counsel. The factors to be considered in ruling on an indigent litigant’s request for counsel include the merits of the case, Plaintiff’s efforts to obtain a lawyer, and Plaintiff’s ability to gather the facts and present the case if unassisted by counsel. See Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir.

1989); Hodge v. Police Officers,802 F.2d 58, 60-62 (2d Cir. 1986). Of these, the merits are “[t]he factor which command[s] the most attention.”Cooper, 877 F.2d at 172. Because it is too early in the proceedings for the Court to assess the merits of the action, Plaintiff’s motion for counsel is denied without prejudice to renewal at a later date. LEAVE TO AMEND The Court grants Plaintiff leave to amend his complaint to detail how correction officials or other staff failed to protect him from harm and denied him medical attention.First, Plaintiff must name as the defendant(s) in the caption3 and in the statement of claim those individuals who were allegedly involved in the deprivation of his federal rights. If Plaintiff does not know the name of a defendant, he may refer to that individual as “John Doe”or “Jane Doe”in both the caption and the body of the amended complaint.4The naming of John Doe defendants, however,

does not toll the three-year statute of limitations period governing this action and Plaintiff shall be responsible for ascertaining the true identity of any “John Doe”defendants and amending his

3The caption is located on the front page of the complaint. Each individual defendant must be named in the caption.Plaintiff may attach additional pages if thereis not enough space to list all of the defendants in the caption. If Plaintiff needs to attach an additional page to list all defendants, he should write “see attached list”on the first page of the amended complaint. Any defendants named in the caption must also be discussed in Plaintiff’s statement of claim. 4 For example, a defendant may be identified as: “Correction Officer John Doe #1 on duty August 31, 2019, at GRVC, during the 7-3 p.m. shift.” 7 complaint to include the identity of any “John Doe” defendants before the statute of limitations period expires. Should Plaintiff seek to add a new claim or party after the statute of limitations period has expired, he must meet the requirements of Rule 15(c) of the Federal Rules of Civil Procedure. Second, 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’ 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 violation occurred; where such violation occurred; 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. The Court dismisses the New York City Department of Correction from this action. See 28 U.S.C. § 1915(e)(2)(B)Gi). The Clerk of Court is also directed to add the City of New York as a defendant under Fed. R. Civ. P. 21. Plaintiffs application for counsel (ECF No. 4) is denied without prejudice to renewal at a later date. 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-9689 (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 he cannot 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. Cf Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). SO ORDERED. Dated: November 26, 2019 whe New York, New York hie. I hich 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 #

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

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

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

Prison Address

County, City State Zip Code

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