Osorio v. Westchester County

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

WILLIAM A. OSORIO,

Plaintiff,

No. 18-CV-5620 (KMK)

v.

OPINION & ORDER

WESTCHESTER COUNTY, et al.,

Defendants.

Appearances:

William A. Osorio

Valhalla, NY

Pro Se Plaintiff

Loren Zeitler, Esq.

Westchester County Department of Law

White Plains, NY

Counsel for Defendants

Mony B.P. Yin, Esq.

Thomas J. Bracken, Esq.

Bennett, Bricklin & Saltzburg, LLC

New York, NY

Counsel for Defendants

KENNETH M. KARAS, United States District Judge:

William A. Osorio (“Plaintiff”) brings this pro se Action, pursuant to 42 U.S.C. § 1983,

against Westchester County, Aramark Correctional Services, LLC (“Aramark”), Warden Francis

Delgrosso (“Delgrosso”), and Aramark Food Service Director Manuel Mendoza (“Mendoza”)

(collectively, “Defendants”), alleging that Defendants provided him with substandard and

unhygienic food while incarcerated at Westchester County Jail, in violation of the Fourteenth

Amendment. Before the Court is Defendants’ Motion To Dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6) (the “Motion”). (Not. of Mot. (Dkt. No. 17).) For the following

reasons, the Motion is granted.

I. Background

A. Factual History

The following facts are drawn from Plaintiff’s Complaint, (Compl. (Dkt. No. 2)), and are

taken as true for purposes of resolving the instant Motion.

Plaintiff alleges that, since his arrival at Westchester County Jail (“WCJ”) on October 30,

2017, Defendant Aramark has provided him with substandard and unhygienic food. (Compl. 5–

6.)1 In particular, Plaintiff — who is supposed to be on a “diabetic diet” — alleges that his meal

trays arrive with “rotte[n] food[]”; that his “salad is always brown and soggy”; that his “meat is

always raw and look[s] pink”; that he “find[s] insects” and “dead [flies]” in [his] food”; that the

meal trays have “mold” and “[leftover] food from [previous] meals” on them; and that the food

tastes “like pieces of plastic [are] coming off the tray and mixing with the food.” (Id.) As a

result, Plaintiff has experienced “nausea, explosive diarrhea, vomiting, stomach cramps, fatigue,

headaches, hunger pangs, [and] dehydration.” (Id. at 7.)

Plaintiff alleges that Defendant Delgrosso “knows” of the food problem “through

gri[e]vances, investigations[,] and complaints, but fails to take corrective actions.” (Id. at 5.)

Plaintiff also alleges that Kitt (not named as a defendant) refused to accept his grievance on

grounds that he was “not accepting Aramark grievances.” (Id. at 6.) Finally, Plaintiff alleges

that Defendants Delgrosso and Mendoza (along with Spano and Flax, not named as defendants)

“attend[] daily meetings” in which they “discuss . . . food [grievances] and lawsuits.” (Id.)

1 Plaintiff’s filings do not use consistent pagination. To avoid confusion, the Court cites

to the ECF-generated page numbers at the top right corner of the relevant page.

B. Procedural History

The initial Complaint was filed on June 20, 2018. (Compl.) On July 18, 2018, the Court

granted Plaintiff’s request to proceed in forma pauperis (“IFP”). (Dkt. No. 4.) Defendants filed

the instant Motion To Dismiss on December 5, 2018. (Not. of Mot. (Dkt. No. 17); Mem. of Law

in Supp. of Mot. (“Defs.’ Mem.”) (Dkt. No. 18).) Plaintiff did not file a response in opposition.

On May 24, 2019, the Court granted Defendants’ request to consider the Motion fully submitted.

(Dkt. No. 20.)

II. Discussion

Defendants principally argue that Plaintiff’s Fourteenth Amendment conditions-of-

confinement claim as to Westchester County, Aramark, and the individual Defendants in their

official capacities fails because Plaintiff has not established Monell liability; that Plaintiff fails to

establish the personal involvement of the individual Defendants in any constitutional violation;

and that, on the merits, Plaintiff fails to state a conditions-of-confinement claim. (Defs.’ Mem.

8–15.)2 The Court addresses each argument separately to the extent necessary.

A. Standard of Review

The Supreme Court has held that although a complaint “does not need detailed factual

allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citations, quotation marks, and alterations omitted). Indeed, Rule 8 of the Federal Rules of Civil

2 To the extent Defendants also make a qualified immunity “argument,” (see Defs.’ Mem.

15), Defendants merely restate the qualified immunity caselaw without meaningfully applying it

to the facts of the case. The Court therefore declines to consider at this time whether Defendants

are protected by qualified immunity.

Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked

assertions devoid of further factual enhancement.” Id. (quotation marks and alteration omitted).

Rather, a complaint’s “[f]actual allegations must be enough to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated

adequately, it may be supported by showing any set of facts consistent with the allegations in the

complaint,” id. at 563, and a plaintiff need allege “only enough facts to state a claim to relief that

is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or her] claim[] across the

line from conceivable to plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556

U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will . . . be a

context-specific task that requires the reviewing court to draw on its judicial experience and

common sense. But where the well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged — but it has not ‘show[n]’ — ‘that the

pleader is entitled to relief.’” (citation omitted) (second alteration in original) (quoting Fed. R.

Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the

hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery

for a plaintiff armed with nothing more than conclusions.”).

In considering a motion to dismiss, the Court “must accept as true all of the factual

allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per

curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“In addressing the sufficiency

of a complaint we accept as true all factual allegations . . . .” (quotation marks omitted)).

Further, “[f]or the purpose of resolving [a] motion to dismiss, the Court . . . draw[s] all

reasonable inferences in favor of the plaintiff.” Daniel v. T & M Prot. Res., Inc., 992 F. Supp. 2d

302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir.

2012)). Where, as here, a plaintiff proceeds pro se, the “complaint[] must be construed liberally

and interpreted to raise the strongest arguments that [it] suggest[s].” Sykes v. Bank of Am., 723

F.3d 399, 403 (2d Cir. 2013) (per curiam) (quotation marks omitted). However, “the liberal

treatment afforded to pro se litigants does not exempt a pro se party from compliance with

relevant rules of procedural and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559

(S.D.N.Y. 2013) (quotation marks omitted); see also Caidor v. Onondaga County, 517 F.3d 601,

605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves regarding

procedural rules and to comply with them.” (italics and quotation marks omitted)).

Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its

consideration to facts stated on the face of the complaint, in documents appended to the

complaint or incorporated in the complaint by reference, and to matters of which judicial notice

may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999)

(quotation marks and citation omitted). When a plaintiff proceeds pro se, however, the Court

may consider “materials outside the complaint to the extent that they are consistent with the

allegations in the complaint.” Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4

n.3 (S.D.N.Y. Aug. 2, 2013) (quotation marks omitted).

B. Analysis

1. Monell Liability

Defendants argue that Plaintiff fails to plausibly allege Monell liability as to Westchester

County, Aramark, and the individual Defendants in their official capacities. (Defs.’ Mem. 8–11.)

“Congress did not intend municipalities to be held liable [under § 1983] unless action

pursuant to official municipal policy of some nature caused a constitutional tort.” Monell v.

Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978); see also Pembaur v. City of

Cincinnati, 475 U.S. 469, 478 (1986) (holding that a municipality may not be liable under § 1983

“by application of the doctrine of respondeat superior” (citation and italics omitted)). Therefore,

“to prevail on a claim against a municipality under [§] 1983 based on acts of a public official, a

plaintiff is required to prove: (1) actions taken under color of law; (2) deprivation of a

constitutional or statutory right; (3) causation; (4) damages; and (5) that an official policy of the

municipality caused the constitutional injury.” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d

Cir. 2008) (citing Monell, 436 U.S. at 690–691). The fifth element reflects the notion that a

Monell defendant “may not be held liable under § 1983 solely because it employs a tortfeasor.”

Bd. of County Comm’rs v. Brown, 520 U.S. 397, 403 (1997) (citation omitted). A plaintiff may

satisfy the fifth element by alleging one of the following:

(1) a formal policy officially endorsed by the municipality; (2) actions taken by

government officials responsible for establishing the municipal policies that caused

the particular deprivation in question; (3) a practice so consistent and widespread

that, although not expressly authorized, constitutes a custom or usage of which a

supervising policy-maker must have been aware; or (4) a failure by policymakers

to provide adequate training or supervision to subordinates to such an extent that it

amounts to deliberate indifference to the rights of those who come into contact with

the municipal employees.

Brandon v. City of New York, 705 F. Supp. 2d 261, 276–77 (S.D.N.Y. 2010) (citations omitted).

Here, Plaintiff does not allege the existence of a formal policy or widespread informal

custom, nor does he allege that a municipal official with policymaking authority took certain

actions that caused the alleged problems at issue in this case. Rather, Plaintiff squarely alleges,

under the fourth prong above, that Westchester County “fails to supervise” Aramark’s food

preparation at WCJ to “ensure . . . compliance.” (Compl. 6.) On its own, this “boilerplate”

allegation “is insufficient, without more, to state a Monell claim.” Dawson v. Westchester

County, No. 18-CV-7790, 2019 WL 3408899, at *4 (S.D.N.Y. July 29, 2019) (citations and

alterations omitted). To state a Monell claim based on a failure to supervise, Plaintiff must allege

“(1) [that] there was a pattern of allegations of or complaints about, or a pattern of actual, similar

unconstitutional activity, and (2) [that] the municipality consistently failed to investigate those

allegations.” Treadwell v. County of Putnam, No. 14-CV-10137, 2016 WL 1268279, at *4

(S.D.N.Y. Mar. 30, 2016) (citation omitted). Plaintiff must also allege that

the municipality was deliberately indifferent to its employees’ conduct, for example, by showing

“that the need for more or better supervision to protect against constitutional violations was

obvious,” Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995). Plaintiff alleges here

that Delgrosso “knows” of the food-related problems at WCJ as a result of receiving grievances,

investigations, and complaints, (Compl. 5), and that Delgrosso and Mendoza (along with others

not named as defendants) “attend[] daily meetings” in which they “discuss . . . food [grievances]

and lawsuits,” (id. at 6). It is true that Plaintiff may establish deliberate indifference from the

fact that there “were repeated complaints of civil rights violations” and that “the complaints

[were] followed by no meaningful attempt on the part of the municipality to investigate or to

forestall further incidents.” Shepherd v. Powers, No. 11-CV-6860, 2012 WL 4477241, at *9

(S.D.N.Y. Sept. 27, 2012) (citation and quotation marks omitted); see also Lawrence v. City of

Rochester, No. 09-CV-6078, 2015 WL 510048, at *7, 9 (W.D.N.Y. Feb. 6, 2015) (same).

However, cases in which plaintiffs have successfully established deliberate indifference by

pointing to previous grievances and lawsuits have involved pleadings that name and detail those

previous lawsuits. See Edwards v. City of New York, No. 14-CV-10058, 2015 WL 5052637, at

*6 (S.D.N.Y. Aug. 27, 2015) (holding that the plaintiff sufficiently alleged the need for better

supervision where he “cited government reports, news articles[,] and [18] prior lawsuits” to

“create a plausible inference that the [municipality] has not meaningfully acted to improve

training and/or supervision to prevent further incidents”); Tieman v. City of Newburgh, No. 13-

CV-4178, 2015 WL 1379652, at *20 (S.D.N.Y. Mar. 26, 2015) (holding that the plaintiff’s

“allegations [describing nine lawsuits over five years] allow[ed] the Court to plausibly infer that

the [municipality] was on notice” of the allegedly unconstitutional conduct); McCants v. City of

Newburgh, No. 14-CV-556, 2014 WL 6645987, at *4–5 (S.D.N.Y. Nov. 21, 2014) (holding that

the plaintiff sufficiently alleged the need for better supervision where he listed and detailed

seventeen other complaints over a seven-year period raising similar allegations against the same

defendants); Farrow v. City of Syracuse, No. 12-CV-1401, 2014 WL 1311903, at *8 n.7

(N.D.N.Y. Mar. 31, 2014) (stating that the fact that “at least 15 excessive force complaints ha[d]

been filed against the [c]ity in the past 5 years” would be sufficient to state a plausible failure to

train claim); cf. An v. City of New York, 230 F. Supp. 3d 224, 231 (S.D.N.Y. 2017) (holding that

citation to “six lawsuits and one newspaper article over the span of four years is insufficient to

plausibly allege the [municipality’s] need [to act] was obvious”). Plaintiff has failed to name or

detail those alleged lawsuits, grievances, or investigations here. Therefore, Plaintiff’s barebones

allegation that Westchester County knew about WCJ’s alleged food problems through receipt of

complaints, grievances, and lawsuits does not, without more, plausibly allege a failure to

supervise claim. See Dawson, 2019 WL 3408899, at *5 (dismissing Monell claim where the

plaintiff alleged, in conclusory fashion, that WCJ and Aramark officials were aware of food

preparation problems through prior lawsuits, inmate grievances, and daily meetings).

Accordingly, Plaintiff’s claims against Westchester County and Aramark are dismissed,

as are his claims against the individual Defendants in their official capacities. See Jackson v.

Westchester County, No. 18-CV-7207, 2019 WL 3338020, at *5 (S.D.N.Y. July 25, 2019)

(dismissing claims against municipality and individual defendant in official capacity where the

plaintiff failed to plausibly allege Monell liability).

2. Personal Involvement

Defendants argue that Plaintiff fails to allege the personal involvement of Delgrosso or

Mendoza in any constitutional violation. (Defs.’ Mem. 11–13.)

“It is well settled that, in order to establish a defendant’s individual liability in a suit

brought under § 1983, a plaintiff must show . . . the defendant’s personal involvement in the

alleged constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133,138 (2d Cir.

2013) (citation omitted). To establish personal involvement, a plaintiff must show that:

(1) the defendant participated directly in the alleged constitutional violation, (2) the

defendant, after being informed of the violation through a report or appeal, failed

to remedy the wrong, (3) the defendant created a policy or custom under which

unconstitutional practices occurred, or allowed the continuance of such a policy or

custom, (4) the defendant was grossly negligent in supervising subordinates who

committed the wrongful acts, or (5) the defendant exhibited deliberate indifference

to the rights of inmates by failing to act on information indicating that

unconstitutional acts were occurring.

Id. at 139 (citation, italics, and quotation marks omitted). In other words, “[b]ecause vicarious

liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official

defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal,

556 U.S. at 676.

Here, Plaintiff alleges, as noted above, that Delgrosso “knows” of the food-related

problems at WCJ as a result of receiving grievances, investigations, and complaints, (Compl. 5),

and that Delgrosso and Mendoza (along with others not named as defendants) “attend[] daily

meetings” in which they “discuss . . . food [grievances] and lawsuits,” (id. at 6). These

allegations require further factual development. “Plaintiff does not provide facts alleging what,”

in particular, Delgrosso and Mendoza “knew about the poor food problem or when they knew

about it.” Dawson, 2019 WL 3408899, at *6 (citations, quotation marks, and alterations

omitted). “Moreover, Plaintiff does not allege that” Delgrosso or Mendoza “participated directly

in the preparation or distribution of food at all (let alone in the preparation or distribution of the

particular food at issue), established a policy or custom that allowed for rotten food to be

provided to inmates, failed to follow a policy or custom on food preparation, or were otherwise

grossly negligent in allowing others to prepare food without following proper procedures.” Id.

That Delgrosso and Mendoza may hold supervisory positions at WCJ “does not change the

analysis, because a defendant cannot be held liable for the service of rotten food based on a

respondeat superior theory.” Id. (citation, quotation marks, and original alterations omitted); see

also Iqbal, 556 U.S. at 676 (“[A] plaintiff must plead that each Government-official defendant,

through the official’s own individual actions, has violated the Constitution.”); Banks v. Annucci,

48 F. Supp. 3d 394, 416 (N.D.N.Y. 2014) (“Where a defendant is a supervisory official, a mere

‘linkage’ to the unlawful conduct through the ‘chain of command’ (i.e., under the doctrine of

respondeat superior) is insufficient to show his or her personal involvement in that unlawful

conduct.” (citations omitted)). There are, in sum, insufficient facts in the Complaint to plausibly

suggest that Delgrosso or Mendoza were personally involved in the alleged unconstitutional

deprivation at issue. See Webster v. Fischer, 694 F. Supp. 2d 163, 179 (N.D.N.Y. 2010) (“Vague

and conclusory allegations that a supervisor has failed to train or properly monitor the actions of

subordinate employees will not suffice to establish the requisite personal involvement and

support a finding of liability.”). Accordingly, Plaintiff’s claims against Delgrosso and Mendoza

in their individual capacities are dismissed.3

3 Because the Court has dismissed all Defendants on other grounds, it need not fully

consider whether Plaintiff states a Fourteenth Amendment claim based on the provision of

substandard and unhygienic food. The Court notes, however, that the Constitution “require[s]

that prisoners be served nutritionally adequate food that is prepared and served under conditions

which do not present an immediate danger to the health and well being of the inmates who

III. Conclusion

For the foregoing reasons, Defendants’ Motion To Dismiss is granted. Because this is the

first adjudication of Plaintiff’s claims, dismissal is without prejudice. If Plaintiff wishes to file

an amended complaint, Plaintiff must do so within 30 days of the date of this Opinion. Plaintiff

should include within that amended complaint all changes to correct the deficiencies identified in

this Opinion that Plaintiff wishes the Court to consider. Plaintiff is advised that the amended

complaint will replace, not supplement, all prior complaints and filings. The amended complaint

must contain all of the defendants, claims, factual allegations, and exhibits that Plaintiff wishes

the Court to consider.4 If Plaintiff fails to abide by the 30-day deadline, his claims may be

dismissed with prejudice.

consume it.” Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983) (citation and quotation marks

omitted). Plaintiff’s allegations that he was served — while on a “diabetic diet” — undercooked,

unhygienic, and contaminated food, thereby causing him illness, (Compl. 5–7), are nearly

identical to other cases in which courts have held the objective prong satisfied. See Moore v.

Westchester County, No. 18-CV-7782, 2019 WL 3889859, at *5 n.4 (S.D.N.Y. Aug. 19, 2019)

(collecting cases in which courts have held that allegations of substandard, unhygienic, and

contaminated food at WCJ satisfied the objective prong required to state a Fourteenth

Amendment claim). The Court expects that counsel for Defendants will meaningfully address

these repeated and serious allegations with their clients.

4 As Judge Briccetti recently put it in a similar case alleging deficient food at WCJ,

Plaintiff should, in amending his complaint:

1. give the dates and times of each incident in which [he] was served the food

described in his complaint;

2. describe how each defendant was involved in serving [him] such food — for

example, whether the defendant personally served him that food, was present

when [he] was served such food, or otherwise knew [he] was served the food;

3. describe how each defendant knew or should have known the food served to

[him] was inadequate;

The Clerk of the Court is respectfully requested to terminate the pending Motion, (Dkt.

No. 17), and to mail a copy of this Opinion to Plaintiff.

SO ORDERED.

DATED: August &l_, 2019

White Plains, New York hy

KENNETH M-

UNITED STATES DISTRICT JUDGE

4, state which, if any, defendants [he] informed of the problems with his food on

each such occasion, how the defendants responded to his complaints, and how

the defendants’ responses or lack thereof contributed to his injury;

5. include any details why [he] believes Aramark, Westchester County, or any of

their employees gave him such food or failed to remedy his complaints; and

6. include any facts regarding the existence of an official Aramark or Westchester

County policy or [unofficial] custom that caused the deprivation of a

constitutional right.

Crispin v. Westchester County, No. 18-CV-7561, 2019 WL 2419661, at *5 (S.D.N.Y. June 10,

2019).

12