# McCollum v. City of New York

> District Court, E.D. New York · November 25, 2020

URL: https://www.frixlaw.com/law-library/cases/10305247

## Case

- **Court:** District Court, E.D. New York
- **Decided:** November 25, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

DARIUS MCCOLLUM,
Plaintiff,

v.

MEMORANDUM AND ORDER
CITY OF NEW YORK, NEW YORK
16-CV-5272 (LDH)
DEPARTMENT OF CORRECTION, NEW
YORK CITY POLICY DEPARTMENT, AND
THE HONORABLE BETTY WILLIAMS

Defendants.

LASHANN DEARCY HALL, United States District Judge:

Plaintiff Darius McCollum, proceeding pro se, brings the instant action against
Defendants the City of New York, the New York State Department of Corrections (“DOC”), the
New York City Police Department (“NYPD”),1 and the Honorable Betty Williams, asserting
claims pursuant to 42 U.S.C. § 1983, the Americans with Disabilities Act (“ADA”), the
Rehabilitation Act, and New York City Human Rights Law (“NYCHRL”). By order dated
December 5, 2016, Plaintiff was granted leave to proceed in forma pauperis (“IFP”). Defendants
move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint
in its entirety.

1 Claims against the NYPD and DOC can only lie against the City of New York. See Jenkins v. City of N.Y., 478
F.3d 76, 93 n.19 (2d Cir. 2007) (citing Wray v. City of New York, 340 F.Supp.2d 291, 3030 (E.D.N.Y.2004) (quoting
N. Y.C. Charter § 396 (“All 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 were otherwise provided by
law.”))). Accordingly, any claims against the city agencies are dismissed.
BACKGROUND2
On November 11, 2015, Plaintiff was arrested for “pilfering a bus with no passengers.”
(Am. Compl. (“Compl.”) 2, ECF No. 6.) At the time of his arrest, an anti-crime officer on the
scene recognized Plaintiff and informed a uniformed officer that Plaintiff was “mental and had a
long history of this.” (Id. 4.)

Plaintiff was subsequently taken to the 78th Precinct. (Id.) Plaintiff alleges that one of
the detectives specifically asked whether Plaintiff suffered from a mental health problem to
which Plaintiff responded by indicating that he suffered from Asperger’s Syndrome, with
Excessive Compulsive Obsession. (Id.) At the precinct Plaintiff was interrogated but was not
Mirandized, nor did he sign a waiver of his Miranda rights. (Id.) Plaintiff was subsequently
transported to Central Booking, where he suffered a “mental relapse” and “was taken to the
hospital for anxiety attacks.” (Id.) At some point, Plaintiff was arraigned in Brooklyn Criminal
Court. (Id.) Plaintiff complains that “instead of being sent to either Mental Health Court, or to a
Mental Health facility,” Plaintiff “was given bail of $100,000.00 and sent to Riker’s Island.”

(Id.) Plaintiff was later offered a plea deal of five to ten years in prison. (Id.)
According to the complaint, the City of New York is punishing Plaintiff for criminal
conduct that is a direct result of his mental disability. (Id. at 2.) As Plaintiff alleges, it is
“common for individuals with Asperger’s disorder to develop an obsessive component.” (Pl.’s
Aff. Opp. Defs.’ Mot. (“Pl.’s Opp.”) 3, ECF No. 66.) In the case of Plaintiff, his condition has

2 The following facts are taken from the amended complaint and Plaintiff’s opposition papers, and are assumed to be
true for the purposes of this memorandum and order. See Aponte v. Buono, No. 11-CV-1077, 2011 WL 6812924, at
*3 (E.D.N.Y. Dec. 28, 2011) (considering new facts alleged in a pro se plaintiff’s opposition papers on a motion to
dismiss as the new factual allegations “effectively amended” complaint); Philippeaux v. United States, No. 10-CV-
6143, 2011 WL 4472064, at *4 (S.D.N.Y. Sept. 27, 2011) (“While a brief is not the appropriate mechanism to
amend a complaint, given plaintiff's pro se status, we review the [second amended complaint] and plaintiff's
opposition to the motion to dismiss liberally and address all of his allegations.”). Citations to the complaint and
Plaintiff’s opposition refer to the pagination assigned by the Court’s ECF system.
resulted in “an extreme obsession . . . with trains and buses,” over which he is powerless, and
which causes him to commit nonviolent crimes involving public transit. (Id. 2; Compl. 1.)
Although Plaintiff maintains that there is no cure for Asperger’s Syndrome, he alleges that
psychiatric treatment is available to “address different characteristics of the disorder.” (Pl.’s
Opp. 3.) Plaintiff further alleges that his continued incarceration would not be beneficial to the

treatment of his mental health condition and resulting conduct because he requires behavior
modification therapy to prevent recidivism. (Id. 4.)
Plaintiff also suffers from hearing loss and is in need of hearing aids. (Compl. 5.)
Plaintiff’s attorney in his criminal case repeatedly apprised the criminal court that “Plaintiff
cannot understand or participate in the Court proceedings (much less assist in his defense)
because he cannot hear and has not been given hearing aids.” (Id. 6.) According to Plaintiff, his
causes of action are non-grievable. (Id. 3.)
STANDARD OF REVIEW
To withstand a Rule 12(b)(6) motion to dismiss, 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, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is facially plausible when the alleged facts allow the court to draw a
“reasonable inference” of defendants’ liability for the alleged misconduct. Id. While this
standard requires more than a “sheer possibility” of defendants’ liability, id., “[i]t is not the
Court’s function to weigh the evidence that might be presented at trial” on a motion to dismiss.
Morris v. Northrop Grumman Corp., 37 F. Supp. 2d 556, 565 (E.D.N.Y. 1999). Instead, “the
Court must merely determine whether the complaint itself is legally sufficient, and, in doing so,
it is well settled that the Court must accept the factual allegations of the complaint as true.” Id.
(citations omitted).
Moreover, where, as here, a plaintiff is proceeding pro se, his pleadings “must be
construed liberally and interpreted to raise the strongest arguments that they suggest.” Sykes v.
Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons,

470 F.3d 471, 474 (2d Cir. 2006)). A pro se complaint, “however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted by lawyers.” Boykin v. KeyCorp,
521 F.3d 202, 213–14 (2d Cir. 2008) (quoting Erickson v. Pardus, 55 U.S. 89, 94 (2007) (per
curiam)). This rule is “particularly so when the pro se plaintiff alleges that [his] civil rights have
been violated.” Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citing
McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)). Still, “even pro se plaintiffs
asserting civil right[s] claims cannot withstand a motion to dismiss unless their pleadings contain
factual allegations sufficient to raise a ‘right to relief above the speculative level.’” Jackson v.
NYS Dep’t of Labor, 709 F. Supp. 2d 218, 224 (S.D.N.Y. 2010) (quoting Twombly, 550 U.S. at

555).
DISCUSSION
I. ADA and Rehabilitation Act
Title II of the ADA protects individuals with disabilities from discrimination in
government programs and activities. See Mary Jo. C. v. New York State and Local Retirement
System, 707 F.3d 144, 152 (2d Cir. 2013) (“The ADA aims ‘to provide a clear and
comprehensive national mandate for the elimination of discrimination against individuals with
disabilities’ . . .[in] public services, programs, and activities.” (quoting 42 U.S.C. §
12101(b)(1))). Specifically, the ADA provides that “no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be subjected to discrimination by any
such entity.” Weixel v. Bd. of Educ. of City of New York, 287 F. 3d 138, 146 (2d Cir. 2002)
(quoting 42 U.S.C. § 12132). The Rehabilitation Act similarly “provides that no otherwise
qualified individual with a disability . . . shall, solely by reason of her or his disability, be

excluded from the participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving [f]ederal financial assistance.” Id. Courts in this circuit
analyze claims asserted pursuant to the ADA and the Rehabilitation Act in tandem. See
Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir. 2003) (“Because Section 504 of the
Rehabilitation Act and the ADA impose identical requirements, we consider these claims in
tandem.”).
To survive a motion to dismiss, a plaintiff must allege that he has a disability as defined
by statute, is otherwise qualified for the benefit that he was denied, and was denied the benefit by
reason of his disability. 3 Weixel, 287 F.3d at 146-47. The rationale for the final requirement is

driven by the statutes’ larger aims. That is, “[b]ecause the purpose of the ADA and the
Rehabilitation Act is to eliminate discrimination on the basis of disability and to ensure
evenhanded treatment between the disabled and the able-bodied, there can be no claim under
these statutes without an allegation of disparate treatment.” Maccharulo v. New York State Dept.
of Correctional Services, No. 08-CV-301, 2010 WL 2899751, at *8 (S.D.N.Y. July 21, 2010).
In their motion to dismiss, Defendants do not take aim at Plaintiff’s allegation that he is
disabled or that he is qualified for government benefits and services. Rather, Defendants urge

3 The Rehabilitation Act imposes the additional requirement, not at issue here, that the plaintiff allege that the
defendant receives federal funding. See Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003)
(“Additionally, to establish a violation under the Rehabilitation Act, a plaintiff must show that the defendants
receive federal funding.”)
dismissal on the grounds that Plaintiff’s complaint does not include any allegation from which
the Court could plausibly infer that the conduct at issue occurred because of Plaintiff’s disability.
(Def.’s Mem. 7.) The Court agrees.
Plaintiff’s claims are premised on the notion that his arrest and imprisonment were
violative of the ADA and the Rehabilitation Act, which required that he instead be hospitalized

in light of his long-known Asperger’s syndrome diagnosis. (See generally Compl. 4–5.)
Notably, Plaintiff does not allege that, in the normal course, persons without disabilities who
engage in criminal conduct avoid arrest and incarceration. Rather, he alleges that the existence
of his mental health condition required Defendants to operate outside of the normal course.
(Compl. 4.) In other words, Plaintiff’s true complaint is “not that he was treated differently, but
the he should have been treated differently.” Sims v. City of New York, 2018 U.S. Dist. LEXIS
212966 at *8 (S.D.N.Y. Dec. 17, 2018) (emphasis in original). This sort of complaint is simply
not cognizable as a discrimination claim under the ADA or the Rehabilitation Act. See
Maccharulo, 2010 WL 2899751, at *4-5 (dismissing ADA and Rehabilitation Act claims on the

grounds that the plaintiffs, as administrators of the estate of a deceased former inmate, failed to
plead facts sufficient to demonstrate that the decedent was treated differently than non-disabled
persons who exhibited the same behaviors). In the absence of any allegation that he was treated
differently than others who committed criminal conduct and that the disparate treatment occurred
because of his mental illness, Plaintiff’s claims must fail.4

4 Plaintiff does not expressly assert a claim for discrimination under the Equal Protection Clause of the United States
Constitution. In light of Plaintiff’s pro se status, the Court notes that, if asserted, such a claim would fail for the
same reasons articulated with respect to Plaintiff’s ADA and Rehabilitation Act discrimination claims. See Freedom
Holdings, Inc. v. Spitzer, 357 F.3d 205, 234 (2d Cir. 2004) (“To establish a violation of the Equal Protection Clause
based on selective enforcement, a plaintiff must ordinarily show the following: (1) [that] the person, compared with
others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible
considerations[.]”).
II. Failure to Give Miranda Warnings
Defendants press that any claim for failure to deliver Miranda warnings must be
dismissed because Plaintiff has no constitutional right to be Mirandized before being questioned.
(Defs.’ Mem. 16-17.) The Court agrees. An interrogator’s failure to inform a plaintiff of his
rights under Miranda v. Arizona “does not, without more, result in § 1983 liability. While a

defendant has a constitutional right not to have a coerced statement used against him, a defendant
does not have a constitutional right to receive Miranda warnings.” Deshawn E. by Charlotte E. v.
Safir, 156 F.3d 340, 346 (2d Cir. 1998); Leogrande v. New York, 08-CV-3088, 2013 WL
1283392, at *9 (E.D.N.Y. Mar. 29, 2013) (“It is well settled that the mere failure to read a
suspect his Miranda warnings is not a constitutional violation in and of itself, and is therefore not
the basis for a Section 1983 claim.”). Accordingly, any Fifth Amendment claim on this ground
fails.
III. Deliberate Indifference to Medical Needs
Defendants urge the Court to dismiss Plaintiff’s deliberate indifference claim for failure

to exhaust as required by the Prisoner Litigation Reform Act of 1995 (the “PLRA”). Because
Plaintiff’s claim relates to the conditions of his custody, it could, presumably, be subject to the
provisions of the PLRA which provides that “[n]o action shall be brought with respect to prison
conditions under [42 U.S.C. § 1983] . . . by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a). “[F]ailure to exhaust administrative remedies is an affirmative defense under
the PLRA, not a pleading requirement” and thus, “inmates are not required to specially plead or
demonstrate exhaustion in their complaints.” Williams v. Correction Officer Priatno, 829 F.3d
118, 122 (2d Cir. 2016). However, “a district court still may dismiss a complaint for failure to
exhaust administrative remedies if it is clear on the face of the complaint that the plaintiff did not
satisfy the PLRA exhaustion requirement.” Id. The Court notes that Plaintiff alleges that his
claims are non-grievable, which suggests that Plaintiff did not avail himself of administrative
remedies under the mistaken belief that he could not. (Compl. 3.) However, in light of
Plaintiff’s pro se status, the Court declines to dismiss Plaintiff’s claim for failure to exhaust, and,

instead, evaluates the sufficiency of his allegations on the merits.
“To establish an unconstitutional denial of medical care, a prisoner must prove deliberate
indifference to his serious medical needs.’” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.
1994) (internal quotation and modification omitted). Successful assertion of a claim for
deliberate indifference requires a plaintiff to allege facts sufficient to satisfy both the objective
and subjective prongs of the standard. Id. First, “the alleged deprivation must be, in objective
terms, ‘sufficiently serious.’” Id. “The serious medical needs standard contemplates a condition
of urgency such as one that may produce death, degeneration, or extreme pain.” Charles v.
Orange Cty., 925 F.3d 73, 86 (2d Cir. 2019). Second, the plaintiff must allege deliberate

indifference, or that the “charged official act[ed] with a sufficiently culpable state of mind.”
Hathaway, 99 F.3d at 553. The required state of mind “is the equivalent of criminal
recklessness; namely, when the prison official knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id.
Defendants urge dismissal of Plaintiff’s deliberate indifference claim on the grounds that
the complaint fails to allege that Plaintiff suffers from an objectively serious medical condition.
Not necessarily so. (Id. 11.) According to the complaint, Plaintiff suffers from Asperger’s
syndrome and hearing loss. While these conditions could constitute serious medical conditions
for purposes of a claim for deliberate indifference to medical needs, Plaintiff’s allegations here
fail to demonstrate that his conditions rise to the level necessary to state a claim for deliberate
indifference. Plaintiff alleges that he suffers from Asperger’s Syndrome, with Excessive
Compulsive Obsession, which causes him to obsess over buses and trains, and commit crimes
involving public transit. (Pl.’s Opp. 1–2, 4.) With respect to his hearing loss, Plaintiff alleges

only that he is in need of hearing aids, and has apprised his attorney and the criminal court of that
fact. (Compl. 5–6.) Absent from the complaint is any allegation that “the denial of treatment
could result in further significant injury or the unnecessary and wanton infliction of pain.” Abreu
v. Lipka, 778 F. App'x 28, 31–32 (2d Cir. 2019) (“A serious medical condition exists where “the
failure to treat a prisoner's condition could result in further significant injury or the unnecessary
and wanton infliction of pain.” (quoting Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000)).
As pleaded therefore, these conditions are insufficient to constitute serious medical conditions as
required to save Plaintiff’s claims.
Moreover, even if the Court were to conclude that Plaintiff’s conditions, as pleaded, were

sufficient to satisfy the objective prong of his claim, Plaintiff’s claim would nonetheless fail
because he has not alleged facts sufficient to satisfy the subjective prong with respect to either
condition. As to Plaintiff’s claim regarding his Asperger’s Syndrome, although Plaintiff alleges
that the field detectives at the precinct were aware of his condition, he does not allege facts
sufficient to demonstrate that they were indifferent to it. (Compl. 4.) Interestingly, Plaintiff does
not allege that his condition was left untreated at either the precinct, or subsequently on Rikers
Island, or otherwise disregarded by officers. Rather, Plaintiff alleges only that he was taken to
prison rather than a mental health facility. (Id.) Likewise, with respect to the alleged denial of
hearing aids, Plaintiff alleges only that the court in his criminal case, the Honorable Betty
Williams was aware of his need. (Id. 6.) Moreover, even if Judge Williams was required to
provide hearing aids to Plaintiff, a conclusion that the Court does not reach, she would be
immune from suit for any alleged failure to do so.5 See Tapp v. Champagne, 164 F. App’x 106,
107 (2d Cir. 2006) (“The law affords judges absolute immunity from personal liability for acts
‘committed within their judicial jurisdiction,’ however erroneous the act and regardless of

motivation.”); see also Sundwall v. Leuba, 28 F. App’x 11, 12–13 (2d Cir. 2001) (“It is . . . well
established that officials acting in a judicial capacity are entitled to absolute immunity against §
1983 actions, and this immunity acts as a complete shield to claims for money damages.”
(internal quotations and modifications omitted)). Moreover, Plaintiff has not identified a single
Department of Corrections employee who was aware, or should have been aware of Plaintiff’s
condition; or who denied Plaintiff hearing aids despite his or her awareness of Plaintiff’s need.
Nor has Plaintiff pleaded facts sufficient to demonstrate that he was treated for his hearing-
related condition and thus a reasonable person in any Defendant’s position would have been
aware of his need for hearing aids.6 Plaintiff’s claims must therefore fail.

* * *
Because Plaintiff has failed to sufficiently allege any constitutional violation, Plaintiff’s
claim against the City of New York for Monell liability must fail. Pitchell v. Callan, 13 F.3d

5 It should also not go without saying that Judge Williams was never served, and the complaint should be dismissed
against her on those grounds. (See ECF No. 23 (returning summons addressed to Judge Williams as she no longer
works in the courthouse).)
6 Additionally, to the extent that Plaintiff purports to assert a claim a Sixth Amendment claim for denial of a fair trial
based on his lack of hearing aids in court, such a claim fails. Plaintiff’s complaint is devoid of facts demonstrating
that his trial has concluded or that any alleged denial of hearing aids impacted the results of his prosecution. See
Martin v. Merola, 532 F.2d 191, 194 (2d Cir. 1976) (“Until the state prosecutions have been concluded, it is simply
impossible to make any reasoned evaluation of plaintiffs’ claim that they have been deprived of the opportunity to
secure a fair trial by reason of the defendants’ actions. Such a claim requires more than the mere speculation of
damages contained in plaintiffs' complaint; it requires a showing that plaintiffs have in fact been denied their due
process rights.”); Rosenberg v. Martin, 478 F.2d 520, 525 (2d Cir. 1973) (“In order to recover damages for the
deprivation of the right to a fair trial, a plaintiff must show not merely that the police engaged in conduct which
‘exceeded the limits of proper police procedure’ and ‘might have affected his right to a fair trial,’ as the judge
instructed, but that the improper conduct in fact had that result.”).
545, 549 (2d Cir. 1994) (stating that if there was no constitutional injury inflicted on the plaintiff
“it is inconceivable that the City could be liable to [the plaintiff].”)
Moreover, having dismissed all of the federal claims in this action, the Court declines to
exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3) over Plaintiff’s claims
under the NYSHRL and the NYCHRL claims pursuant to 28 U.S.C. § 1367(c)(3). See Brzak v.

United Nations, 597 F.3d 107, 113–14 (2d Cir. 2010) (“We have said that if a plaintiff’s federal
claims are dismissed before trial, ‘the state claims should be dismissed as well.’” (quoting Cave
v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 250 (2d Cr. 2008))); see also First Capital
Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 182 (2d Cir. 2004) (“The exercise of supplemental
jurisdiction is left to the discretion of the district court[.]”). These claims are therefore dismissed
without prejudice for lack of subject-matter jurisdiction.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss for failure to state a claim is
GRANTED, and the complaint is dismissed in its entirety.

In light of his pro se status, Plaintiff is granted leave to file an amended complaint within
30 days from the entry of this memorandum and order. See Cruz v. Gomez, 202 F.3d 593 (2d
Cir. 2000). The amended complaint must be captioned “Amended Complaint” and bear the same
docket number as this memorandum and order. Failure to file an amended complaint within 30
days, as directed by this memorandum and order, will result in dismissal of Plaintiff’s case for
failure to prosecute.
SO ORDERED.

Dated: Brooklyn, New York /s/ LDH
November 25, 2020 LASHANN DEARCY HALL
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10305247. Public record. Not legal advice.