# Cheatham v. City of New York

> District Court, E.D. New York · January 14, 2020

URL: https://www.frixlaw.com/law-library/cases/10303650

## Case

- **Court:** District Court, E.D. New York
- **Decided:** January 14, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10303650

## How later opinions describe it (automated extraction)

- noting that even after Twombly, the court “remain[s] obligated to construe a pro se complaint liberally”
- noting that even after Twombly, the court “remain[s] obligated to construe a pro se complaint liberally”
- noting that even after Twombly, the court “remain[s] obligated to construe a pro se complaint liberally”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JAMESCHEATHAM, SSS

Plaintiff,
MEMORANDUM AND ORDER
-against- 18-CV-2388 (RRM) (LB)
CITY OF NEW YORK,
Defendant.
aati an gins en □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□
ROSLYNN R. MAUSKOPF, United States District Judge.
Plaintiff James Cheatham, who is currently incarcerated at the Fishkill Correctional
Facility and is proceeding pro se, filed the instant action on April 13, 2018, pursuant to 42
U.S.C. § 1983, asserting claims regarding the conditions of his confinement on Rikers Island. In
an Order entered on April 2, 2019, this Court granted Cheatham’s request to proceed in forma
pauperis and dismissed the complaint for failure to state a claim upon which relief may be
granted. Cheatham was also granted leave to file an amended complaint — and did so on
September 9, 2019. For the reasons below, Plaintiff's amended complaint is dismissed and
plaintiffis granted 30 days’ leave to file a second amended complaint.
BACKGROUND!
Cheatham’s original complaint was filed on April 13, 2018, against the City of New York
(“the City”), the State of New York, the New York City Department of Correction, as well as
other defendants. (Compl. (Doc. No. 1).) The complaint alleged, among other things, that the
Anna M. Kross Center on Rikers Island was a “slave complex” and that the conditions of
Cheatham’s confinement in that facility violated the constitution. (Compl. at 5-6.) This Court

! following facts are drawn from Cheatham’s amended complaint and are taken as true for the purposes of this
order,

dismissed Cheatham’s complaint for failure to state a claim. (Order of 4/2/2019 (Doc. No. 7).)
The Court granted Cheatham leave to amend his complaint in order to properly plead a claim
regarding the conditions of his confinement. (/d. at 8-9.) Cheatham was instructed that, in order
to state a claim against the City of New York, he would have plead facts showing a City policy
or custom caused his injury. (/d. at 5-6.) Cheatham was also instructed that, if he named
individual defendants, he needed to name “those individuals who have some personal
involvement in the action he alleges,” or at the very least “identify each of them as Correction
Officer John or Jane Doe, and to the best of his ability describe each individual.” (Order of
4/2/2019 at 8-9.)
Cheatham filed the instant amended complaint on September 9, 2019, naming only the
City of New York as a defendant. (Am. Compl. (Doc. No. 13) at 2.) Cheatham’s amended
complaint alleges that from February 20, 2018, until September 1, 2018, while detained at the
Anna M. Kross Center on Rikers Island, he was held in living conditions that were “inhumane.”
(Am. Compl. at 4.) Cheatham points to “the abundance of Rodents and Roaches,” showers
which lacked privacy and were “overcome by mold,” the provision of “tattered clothing which
didn’t fit,” medical care “at the bare minimum,” food that did not meet “the standards of the
Food and Drug Administration,” and a generally low “level of safety.” Ud. at 4-5.) Cheatham
does not identify a specific policy or custom of the City of New York, but quotes language from
the Supreme Court’s decision in Farmer v. Brennan, discussing prison officials’ duty under the
Eighth Amendment to the Constitution to “ensure that inmates receive adequate food, clothing,
shelter, and medical care, and [to] ‘take reasonable measures to guarantee the safety of the
inmates.’” 511 U.S. 825, 832-33 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27
(1984)). Cheatham states that these conditions violated his rights under the Fifth, Eighth, and

Fourteenth Amendments to the United States Constitution. (Am. Compl. at 6.) Cheatham seeks
“Monetary, Decla[ra]tory, and Injunctive relief in the sum of $3,000,000.” (/d.)
STANDARD OF REVIEW
The Prison Litigation Reform Act requires a district court to screen a civil complaint
brought by a prisoner against a governmental entity or its agents and to dismiss the complaint, or
any portion of the complaint, if the complaint is “frivolous, malicious, or fails to state a claim
upon which relief may be granted.” 28 U.S.C. § 1915A(b)(1).
To state a claim, a complaint must plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is
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.” Matson v. Bd. of Educ., 631
F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although all
allegations contained in the complaint are assumed to be true, this tenet is “inapplicable to legal
conclusions.” /gbal, 556 U.S. at 678. In reviewing a pro se complaint, the court must be
mindful that a plaintiff's pleadings should be held “to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting
Estelle v. Gamble, 429 U.S. 97, 104-105 (1976)); see also Harris v. Mills, 572 F.3d 66, 72 (2d
Cir. 2009) (noting that even after Twombly, the court “remain[s] obligated to construe a pro se
complaint liberally”).
DISCUSSION
I. Municipal Liability Under § 1983
To bring a § 1983 action against a municipality such as the City of New York, the
plaintiff must also establish that “the deprivation of the plaintiff's rights under federal law is

caused by a governmental custom, policy, or usage of the municipality.” Jones v. Town of East
Haven, 691 F.3d 72, 80 (2d Cir. 2012). “A policy or custom may be established by any of the
following: (1) a formal policy officially endorsed by the municipality; (2) actions or decisions
made by municipal officials with decision-making authority; (3) a practice so persistent and
widespread that it constitutes a custom through which constructive notice is imposed upon
policymakers; or (4) a failure by policymakers to properly train or supervise their subordinates,
such that the policymakers exercised ‘deliberate indifference’ to the rights of the plaintiff.”
Moran v. Cty. of Suffolk, No. 11-CV-3704 (PKC) (GRB), 2015 WL 1321685, at *9 (E.D.N.Y.
Mar. 24, 2015). The purpose of this requirement is to ensure that “a municipality is held liable
only for those deprivations resulting from the decisions of its duly constituted legislative body or
of those officials whose acts may fairly be said to be those of the municipality.” Bd. of Cty.
Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 403-04 (1997), Cheatham has failed to
plead this requirement in any of its forms.
A. Formal Policy
A plaintiff may establish municipal liability under § 1983 by pleading that a “formal
policy officially endorsed by the municipality” caused the constitutional violations he identifies.
Moran, 2015 WL 1321685, at *9. Cheatham does not identify a formal policy related to the
conditions of his confinement; rather, he cites text from the Supreme Court’s decision in Farmer
v. Brennan, 511 U.S. 825 (1994). (Am. Compl. at 4.) The standard articulated in Farmer,
calling for inmates to “receive adequate food, clothing, shelter, and medical care” is not a formal
policy of the City of New York. Farmer, 511 U.S. at 832-33. Even if it were, the unsanitary
and unhealthy conditions of confinement Cheatham alleges, far from being caused by the policy

he quotes, would have occurred in violation of that policy. Cheatham therefore fails to state a §
1983 claim against the City on the basis of a formal policy.
B. Actions or Decisions by Municipal Officials with Decision-Making Authority
A plaintiff can also establish municipal liability by identifying “actions or decisions made
by municipal officials with decision-making authority” which caused the constitutional
violations alleged in his complaint. Moran, 2015 WL 1321685, at *9. Cheatham does mention
the “lack of Correction’s Officers presence within the dorm area” in his complaint in explaining
the low “level of safety” at Rikers Island. (Am. Compl. at 5.) Cheatham does not allege,
however, that these officers had decision-making authority, or were involved in actions or
decisions that resulted in a municipal policy or custom. Furthermore, in the Order dismissing
Cheatham’s original complaint, Cheatham was directed by the Court to “describe each
individual” he alleges had “some personal involvement in the action he alleges in the amended
complaint.” (Order of 4/2/2019 at 8-9.) Cheatham has not done that here. Cheatham fails to
establish the City of New York’s municipal liability on the basis of decisions made by municipal
officials.
C. Persistent and Widespread Practice
A plaintiff may also plead a § 1983 claim against a municipality by identifying “a
practice so persistent and widespread that it constitutes a custom,” and alleging facts to support
the conclusion that the custom caused the constitutional violations he alleges. Moran, 2015 WL
1321685, at *9. To establish municipal liability on the basis of a persistent and widespread
practice, “a plaintiff must prove that the custom at issue is permanent and well-settled.” Little v.
Municipal Corp., 51 F. Supp. 3d 473, 487 (S.D.N.Y. 2014); see also City of St. Louis v.
Praprotnik, 485 U.S. 112, 127 (1988) (“Relying on the language of § 1983, the Court has long

recognized that a plaintiff may be able to prove the existence of a widespread practice that,
although not authorized by written law or express municipal policy, is ‘so permanent and well
settled as to constitute a “custom or usage” with the force of law.’” (quoting Adickes v. S.H.
Kress & Co., 398 U.S. 144, 167-168 (1970)). In this context, “‘widespread means that [the
unconstitutional acts in question] are common or prevalent throughout the [government body];
well-settled means that the [unconstitutional acts in question] have achieved permanent, or close
to permanent, status.°” Kucharezyk v. Westchester Cty., 95 F. Supp. 3d 529, 544 (S.D.N.Y.
2015) (quoting Davis v. City of New York, 228 F. Supp. 2d 327, 346 (S.D.N.Y. 2002)).
Cheatham identifies seven distinct conditions of confinement in his complaint: [1] “the
abundance of Rodents and Roaches,” [2] showers which lacked privacy, [3] showers “overcome
by mold,” [4] clothing that was “tattered” and “which didn’t fit,” [5] medical care “at the bare
minimum,” [6] food that did not meet “the standards of the Food and Drug Administration,” and
[7] a generally low “level of safety.” (Am. Compl. at 4-5.) In describing each of these
conditions, Cheatham alleges no facts supporting the conclusion that the condition is widespread
— or that it persisted in such a way so as to have “achieved... permanent, or close to permanent,
status.” Kucharczyk, 95 F. Supp. 3d at 544. At this stage, Cheatham does not need to prave the
permanence of the conditions he describes, but to prevail on this theory of § 1983 liability, he
does need to plead facts supporting the conclusion that the conditions he identifies were well-
settled in the City of New York — sufficiently so to be considered a “custom.” Because
Cheatham alleges no such facts in his amended complaint, he fails to state a § 1983 claim against
the City of New York based on a widespread or persistent practice of unconstitutional acts.

D. Failure to Train
Finally, a plaintiff may establish municipal liability by pleading “a failure by
policymakers to properly train or supervise their subordinates.” Moran, 2015 WL 1321685, at
*9. Cheatham makes no allegations to this effect. The amended complaint does not state a §
1983 claim against the City of New York based on a failure by policymakers to train or supervise
subordinates.
Il. Constitutional Violations
To state a claim against the City, Cheatham must also identify conditions of confinement
that could plausibly be unconstitutional. As a pretrial detainee, Cheatham was guaranteed
constitutional conditions of confinement by the Due Process Clause of the Fourteenth
Amendment to the Constitution. See Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). Courts
generally evaluate a pretrial detainee’s rights to constitutionally adequate conditions under the
same tests and standards applied in Eighth Amendment challenges to conditions of confinement
brought by convicted prisoners. See Santana v. City of New York, No. 15-CV-6715 (ER), 2018
WL 1633563, at *6 (S.D.N.Y. Mar. 29, 2018). It is also the case that “conditions of confinement
may be aggregated to rise to the level of a constitutional violation, but only when they have a
mutually reinforcing effect that produces the deprivation of a single, identifiable human need
such as food, warmth or exercise.” Santana, 2018 WL 1633563, at *7 (quoting Walker v. Schult,
717 F.3d 119, 125 (2d Cir. 2013)). To state a claim that a condition of confinement is
unconstitutional, a plaintiff must allege “conditions, either alone or in combination, [that] pose
an unreasonable risk of serious damage to his health.” Walker, 717 F.3d at 125. Turning to the
conditions Cheatham points to here, the Court concludes that, as pled, Cheatham has not
provided sufficient facts to conclude any of these conditions are unconstitutional.

A. Vermin
Cheatham alleges that Rikers Island has an “abundance of Rodents and Roaches.” (Am.
Compl. at 4.) Even if vermin are widespread at Rikers Island, the presence of vermin in a
detainee’s housing area generally does not rise to the level of a constitutional violation. See, e.g.,
Clay v. Lee, No. 13-CV-7662 (KMK), 2017 WL 436041, at *4 (S.D.N.Y. Jan. 30, 2017) (citing
cases). To state a constitutional claim based on the presence of vermin, Cheatham must allege
facts supporting the conclusion that the vermin at Rikers Island posed a serious danger to his
health. See id. (“Plaintiff does not describe how the presence of cockroaches in his cell
presented a danger to his well-being sufficient to satisfy the Eighth Amendment inquiry.”). As
pled, Cheatham fails to establish a constitutional violation based on the presence of vermin at
Rikers Island. Cheatham’s second amended complaint should include specific allegations about
pervasiveness of rodents and roaches as Rikers Island the danger posed to him by the roaches
and rodents.
B. Showers Lacking Privacy
Cheatham alleges that the showers at Rikers Island provided “no privacy.” (Am. Compl.
at 4.) Asa general rule, however, it is “a simple reality of prison life .. . that there is no
expectation of privacy in showers.” Roundtree v. City of New York, No. 15-CV-8198, 2018 WL
1586473, at *12 (S.D.N.Y. Mar. 28, 2018). Cheatham’s generalized complaint about the lack of
privacy in the Rikers Island showers therefore fails to state a constitutional claim.
C. Moldy Showers
Cheatham also brings his constitutional challenge based on the presence of mold in the
Rikers Island showers. (Am. Compl. at 4.) Cheatham does not provide details about the type of
mold, or whether it caused him serious physical harm. As pled, Cheatham fails to allege that the

.

mold “pose[d] an unreasonable risk of serious damage to his health.” Walker, 717 F.3d at 125.
If, however, Cheatham pleads such facts in his second amended complaint, exposure to mold —
black mold in particular — may suffice to state a claim for unconstitutional conditions of
confinement. See Reid v. Nassau Cty. Sheriff's Dept., No. 13-CV-1192 (SJF) (SIL), 2014 WL
4185195, at *14 n.14 (E.D.N.Y. Aug. 20, 2014).
D. Poor Quality Clothing
Cheatham alleges a constitutional violation based on the provision of “tattered clothing
which didn’t fit.” (Am. Compl. at 5.) As pled, Cheatham fails to allege that the clothing
provided “pose[d] an unreasonable risk of serious damage to his health.” Walker, 717 F.3d at
125. And given that Cheatham admits he was supplied with clothing, and makes no suggestion
that it was inadequate to keep him warm, it does not appear he could make out sucha claim. Cf
Brown v. McElroy, 160 F. Supp. 2d 699, 706 (S.D.N.Y. 2001) (denying plaintiff's claim that he
was unconstitutionally deprived clean clothing in prison because plaintiff “does not claim that he
was without any clothing” and therefore “has not sufficiently alleged conditions that would
satisfy the objective prong of [an unconstitutional conditions of confinement] claim.”).
E. Minimal Medical Care
Cheatham alleges that the medical care at Rikers Island “was given at the bare minimum
to prevent too many grievances.” (Am. Compl. at 5.) Yet in order to establish an Eighth
Amendment claim arising out of inadequate medical care, a prisoner must prove “deliberate
indifference to [his] serious medical needs.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.
1998) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Cheatham alleges no facts
regarding the medical treatment he received. He therefore fails to state a constitutional claim
based on a failure to provide adequate medical care.

F. Poor Quality Food
Cheatham alleges that the food provided at Rikers Island “lacked taste, flavor, and” was
below the quality “standards of the Food and Drug Administration.” (Am. Compl. at 4.)
Generally, as long as the food is “nutritionally adequate [and] is prepared and served under
conditions which do not present an immediate danger to the health and well-being of the inmates
who consume it[,]” no constitutional right is violated. Willey v. Kirkpatrick, 801 F.3d 51, 69 (2d.
Cir. 2015) (quoting Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983) (per curiam)). Cheatham
does not plead facts regarding the food he was provided, its nutritional adequacy, or its potential
effects on his health. He therefore fails to state a constitutional claim against the City based on
the quality of food he was served at Rikers Island.
G. Lack of Safety
Finally, Cheatham alleges that, while housed at Rikers Island, “the level of safety was
barely existent.” (Am. Compl. at 5.) Specifically, Cheatham describes being “housed in an open
dorm amongst other inmates with extreme mental issues and crimes extensive in nature.” (/d.) It
is true that “prison officials have a constitutional duty to act reasonably to ensure a safe
environment for a prisoner when they are aware that there is a significant risk of serious injury to
that prisoner.” Heisler v. Kralik, 981 F. Supp. 830, 837 (S.D.N.Y. 1997), aff'd sub nom. Heisler
v. Rockland Cty., 164 F.3d 618 (2d Cir. 1998). However, the mere fact that Cheatham was
housed with other inmates does not arise to a constitutional violation. Cheatham’s complaints
about an abstract threat posed by his fellow prisoners does not state a claim for unconstitutional
conditions of confinement.

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Ill. Injunctive Relief
Cheatham’s amended complaint also seeks unspecified declaratory and injunctive relief.
(Am. Compl. at 6.) Because Cheatham no longer resides at Rikers Island, any claim for
declaratory and injunctive relief is moot. See, e.g., Khalil v. Laird, 353 F. App’x 620, 621 (2d
Cir. 2009) (pro se prisoner’s claims for declaratory and injunctive relief in constitutional
challenge to conditions of confinement at the federal Metropolitan Detention Center in Brooklyn
were moot after he was released during the pendency of the action).
IV. Leave to Amend
The Second Circuit has instructed that a pro se litigant should be given the opportunity to
“amend his complaint prior to its dismissal for failure to state a claim, unless the court can rule
out any possibility, however unlikely it might be, that an amended complaint would succeed in
stating aclaim.” Gomez vy. USAA Federal Savings Bank, 171 F.3d 794, 796 (2d Cir. 1999).
Where “amendment would be futile,” the Court may deny leave to amend. Tocker v. Philip
Morris Cos., Inc., 470 F.3d 481, 491 (2d Cir. 2006).
As explained above, Cheatham may be able to plead facts sufficient for municipal
liability under § 1983 under a theory that certain City practices were sufficiently widespread and
persistent to constitute a City custom. Chatham’s amended complaint does not plead any facts to
suggest he could state a claim under the other three bases for municipal liability. Cheatham is
therefore granted leave to file a second amended complaint against the City alleging facts to
support that the City’s actions were widespread and persistent. In his second amended
complaint, Cheatham should allege specific facts supporting the conclusion that the conditions
he describes were sufficiently permanent and widespread so as to constitute a custom of the City

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of New York. Leave to amend is denied with respect to the other theories of municipal liability
because the Court finds amendment would be futile.
Cheatham’s leave to amend is also cabined to particular claims regarding his
confinement. As explained above, Cheatham has not adequately pled any of his unconstitutional
conditions claims. The court concludes that amendment of Cheatham’s claims based on the lack
of privacy in the showers, the provision of poor-quality clothing, and lack of safety from other
inmates would be futile. and therefore denies leave to amend on these claims. Cheatham is
granted leave to amend his claims regarding the presence of vermin, mold in the showers,
inadequate medical care, and poor-quality food. Cheatham is advised that he should allege
particular facts describing how each of these conditions of his confinement caused serious harm
to his individual health or well-being.
Cheatham is also advised that any amended complaint will replace all prior complaints
and thus must stand on its own, without reference to the prior complaints. Therefore, Cheatham
must include in the second amended complaint all necessary information that was contained in
the prior complaints. The second amended complaint must be captioned as a “Second Amended
Complaint” and bear the same docket number as this order.
CONCLUSION
Plaintiff's complaint is dismissed for failure to state a claim upon which relief may be
granted. See 28 U.S.C. §§ 1915A(b)(1); 1915 (e)(2)(B). Cheatham is granted thirty days’ leave,
from the date of this Order, to file a second amended complaint against the City of New York. If
Cheatham fails to file a second amended complaint within the time allowed, or fails to cure the
deficiencies discussed herein, judgment may enter against him. No summons shall issue at this
time and all further proceedings shall be stayed for 30 days from the date of this Order. The

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Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal 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),
SO ORDERED.
Dated: Brooklyn, New York
Jan | 2020 s/Roslynn R. Mauskopf

ROSLYNN R. MAUSKOPF
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10303650. Public record. Not legal advice.