Dawkins v. Copeland

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

EDWARD C. DAWKINS,

Plaintiff,

– against –

COPELAND, Correctional Officer; M.

HOLINESS, Grievance Coordinator; RICE,

Civilian, SCULLY, Cashier Officer; S.

OPINION & ORDER

CANADY, Grievance Coordinator; Executive

Director of Programs DEPUTY WARDEN VAS 17 Civ. 9926 (ER)

#242; DR. RAMOS and DR. KATZ, Medical

Directors; DR. JOHN DOE; CAROLYN

SAUNDERS, Warden of North Infirmary

Command; K.TILLERY, Captain; LOUNETTE

DAWKINS, Captain; CAPTAIN COLON;

CAPTAIN COOPER; and DEPUTY WARDEN

GRACE, Executive Supervisor Operations,

Defendants.

RAMOS, D.J.:

Edward Dawkins, incarcerated and pro se, sues a group of employees of New

York City’s Department of Correction and a group of medical professionals at the City’s

Health and Hospital Corporation. He alleges that the defendants ignored his medical

needs, subjected him to unconstitutional conditions of confinement, and interfered with

his mail while he was a pre-trial detainee at Rikers Island. He brings his lawsuit under 42

U.S.C. § 1983.

dis Opinion and Order concerns the motion to dismiss Dawkins’ Amended

Complaint brought by three of the defendants from the Department of Correction:

Officer Shirley Canady, Officer Tanoya Copeland, and Capt. Lounette Dawkins. de

Court will also address, sua sponte, claims against defendants that have not been served

in this action. For the following reasons, Canaday’s and Capt. Dawkins’ motions to

dismiss are GRANTED in their entirety, Copeland’s motion to dismiss is GRANTED in

part and DENIED in part, and claims against all other defendants are DISMISSED. Of

the dismissed defendants, all are dismissed with prejudice, except for Cooper, Colon, and

Grace, who are dismissed without prejudice.

I. BACKGROUND

Dawkins’ allegations are made in his Amended Complaint, Doc. 79, and an

affidavit attached to his memorandum in opposition to the moving defendants’ motion to

dismiss, Doc. 101. Because Dawkins is proceeding pro se, the Court will consider the

factual allegations made in the affidavit alongside the Amended Complaint. See Long v.

Lafko, 254 F. Supp. 2d 444, 446 (S.D.N.Y. 2003).

A. Medical Care

Police brought Dawkins to Lincoln Medical Center on January 2, 2015, after he

had been assaulted by four individuals. Am. Compl. (“AC”) ¶ 30, Doc. 79. Physicians

diagnosed him with broken ribs, a broken eye socket, and a broken cheek. AC ¶ 31.

Because of a pending misdemeanor charge, Dawkins was discharged into police custody

on January 7, after which made an appearance in a Bronx criminal court. AC ¶ 31. de

presiding judge, after observing Dawkins’ condition, ordered that he be seen by a

physician for further treatment. AC ¶ 32.

On January 8, Dawkins was admitted to the Vernon C. Bain Correctional Center

(“VCBC”) for pretrial detainment. dere, he received an intake examination, and

informed the examining nurse of the treatment he had received at Lincoln Medical

Center. AC ¶ 33; Mot. in Opp. Ex. 2, Doc. 101. He also told the nurse that he suffered

from narcolepsy and severe sleep apnea, which required treatment with a BiPAP machine.

AC ¶ 33. Dawkins had a follow-up appointment with a physician the next day, during

which he was prescribed a double mattress to assist with rib pain due to the fractures he

sustained from his assault. Mot. in Opp. Ex. 3. Dawkins alleges that throughout his time

at VCBC he was assigned a steel frame bed with a two-inch thick mattress. AC ¶ 34.

Dawkins complained of severe chest plains and breathing problems on January

11, while still detained at VCBC. Mot. in Opp. Ex. 5 (“Aff.”) ¶ 7. He was seen by a

nurse, who performed an electrocardiogram, and the John Doe physician named in his

Amended Complaint, who diagnosed him with a cold and prescribed ibuprofen, a muscle

relaxer, and an antacid. AC ¶ 35; Mot. in Opp. Ex. 18. Dawkins has since identified the

John Doe as Mohammed Chowdhury. Aff. ¶ 8.

Dawkins was transferred to the Otis Bantum Correctional Center on Rikers Island

a few days after January 11. He saw a dentist on January 21 to treat complications

related to his broken cheek and eye socket. AC ¶ 36; Aff. ¶ 10. After taking an x-ray, the

dentist ordered that Dawkins be immediately transferred to Bellevue Hospital Center. AC

¶ 36. de physicians there performed another x-ray and a CT scan. AC ¶ 36.

de Bellevue physicians found a significant amount of blood in Dawkins’ lungs,

causing the right lung to collapse. AC ¶ 38. dey operated immediately to repair the

lung, placing him under a local anesthetic because of fears his sleep apnea could cause

complications under a general anesthetic. AC ¶ 39. Dawkins indicates that the procedure

was very painful.

Dawkins arrived at Northern Infirmary Command (“NIC”) on Rikers Island on

January 29 to recover from his surgery. Aff. ¶ 15. During his stay at NIC, Dawkins was

issued a BiPAP machine, but without a humidifier. Aff. ¶ 15. He was also issued a

mattress that he alleges was too thin to support him, especially since he suffered from

herniated and bulging discs in his back. Aff. ¶ 16. Dawkins complained of these

conditions to defendant Dr. Raul Ramos, a medical director at NIC, and defendant

Carolyn Saunders, the warden of NIC. Aff. ¶ 15–17. He alleges that he was issued a

thinner mattress after he complained to Saunders. AC ¶ 17. He also claims that he

suffered tooth decay, as well as dry mouth, headaches, blurred vision, loss of balance, and

nose irritation each morning because he was never issued a BiPAP humidifier. AC ¶ 42.

Dawkins’ dormitory was searched in February 2017 by defendants Captain Colon,

Deputy Warden Grace, and Captain Cooper. Aff. ¶ 46. Grace directed Colon to remove

medical mattresses from the beds. Aff. ¶ 46. Dawkins complained to Cooper that he

needed the medical mattress. Aff. ¶ 46. Cooper spoke with the medical director at the

time, defendant Katz, who indicated that Dawkins was not authorized for one. Aff. ¶ 47.

Dawkins asked a physician’s assistant for assistance; the assistant, with the approval of

Katz, wrote a prescription for a thicker mattress. Aff. ¶ 48. When informed of the

prescription, Capt. Dawkins indicated that the Department of Correction no longer

supplied the thicker mattresses. Aff. ¶ 48.

After the search of his dormitory, Dawkins made a formal request for a thicker

mattress as an accommodation for his medical conditions. Aff. ¶ 51. de request was

approved, but he never received a thicker mattress. Aff. ¶ 51. Dawkins alleges that the

failure to provide him with a thicker mattress aggravated his sleep apnea and caused him

pain.

Dawkins also alleges that medical staff at NIC did not properly treat his

narcolepsy by giving him too little prescribed medication, and failed to perform follow-

up tests to better diagnose his condition. Aff. ¶ 53. As a result, he alleges, he was unable

to stay awake during a pretrial hearing and was forced to enter a plea of guilty to an

offense. Aff. ¶ 54.

B. Mail Difficulties

While at NIC, Dawkins attempted to file a notice of claim in March 2015 against

the New York City Health and Hospitals Corporation (“H+H”), which operates Lincoln

Medical Center, Bellevue Medical Center, and the medical facilities at both VCBC and

Rikers Island. He first sent separate notices of claim to New York City’s Office of the

Comptroller and the general counsel of H+H via certified mail with return receipt

requested on March 11. Aff. ¶ 19. Dawkins resent his notices on March 30. Aff. ¶ 21.

He alleges that none of the notices were received and that his inmate account was never

charged for the cost of the mailing. Aff. ¶¶ 19, 21. In an April call with Dawkins, a clerk

for the Comptroller’s office indicated that facilities on Rikers Island had “a history of not

mailing claims against them.” Aff. ¶ 21.

Dawkins spoke about his mail with defendant Copeland on March 20. At the

time, Copeland worked as NIC’s assigned mail officer, and Dawkins had seen her pick up

mail from his dormitory. AC ¶ 18, Aff. 20. She told him that she had taken the notices to

a trailer to be processed. Aff. ¶ 20.

Sometime afterwards, Dawkins spoke with Copeland and defendant Capt. Tillery.

Dawkins told Tillery that there was no entry indicating that his notices had been received

by Copeland in a logbook for outgoing legal mail. Aff. ¶ 23. Copeland said that Dawkins

did not have sufficient funds in his inmate account to cover postage. Aff. ¶ 24. Tillery

instructed Dawkins to file a grievance. Aff. ¶ 23.

Dawkins then went to Capt. Dawkins. He told Capt. Dawkins that Copeland was

not following a Department of Correction directive mandating that indigent prisoners be

given stationery and postage for all legal mail. Aff. ¶ 24. Capt. Dawkins said she would

speak with Copeland about the matter.

Dawkins filed a grievance related to his lost mail on April 27. Mot. in Opp. Ex. 7

at 2. When interviewed as part of the investigation, Copeland indicated that Dawkins did

not have sufficient funds in his inmate account to cover postage. Aff. ¶ 22. She said that

she would speak with a cashier to determine how to complete the transaction if Dawkins

did not have sufficient funds and would notify Dawkins when the transaction was

complete. Aff. ¶ 22.

On the same day he filed his grievance, Dawkins spoke with defendant Holiness,

a grievance coordinator, about his mail. She told Dawkins that the Department of

Correction would only pay for legal mail after his inmate account was empty for two

weeks. Aff. ¶ 27. In May, he spoke with her again, and she told him that the Department

does not pay for legal mail at all. Aff. ¶ 28. He alleges that this conversation was a

response to his complaints to Capts. Dawkins and Tillery.

Dawkins filed another grievance on May 14, after speaking with Holiness. Mot.

in Opp. Ex. 7 at 1. de investigator spoke with defendant Scully, a cashier at Rikers, who

indicated that inmates are only considered indigent after two weeks with no funds in their

account. Scully indicated that whether to provide stamps is in the mail officer’s

discretion, because if there are funds in the account the inmate must purchase stamps

from the facility commissary. Scully further indicated that the Department of Correction

does not pay for return receipt or certified mail and does not pay for postage of items over

three ounces.

At some point, defendant Canady replaced Holiness as grievance coordinator.

Dawkins spoke with her about the mail, and she responded that she would find out where

his notice had gone. Aff. ¶ 26. She eventually reported, as had other Department of

Correction employees, that inmates are not considered indigent until their accounts had

been empty for a certain period of time. Aff. ¶ 26.

Dawkins remained at NIC over the next year and a half. During this time he

served as a member of NIC’s inmate council, which was a body that spoke with prison

officials — including Capt. Dawkins, Tillery, Canady, and Copeland — on the inmates’

behalf. As a representative, he continued to complain of missing legal mail and the

failure of the Department of Correction to pay for postage and stationery. Aff. ¶ 31.

On September 8, 2016, Dawkins brought up the mail issue again at a council

meeting. Aff. ¶ 32. At the meeting, Capt. Dawkins suggested that the U.S. Postal Service

sometimes failed to regularly pick up outgoing mail. Aff. ¶ 32. Another inmate

complained to the Postal Service of delayed incoming mail, after which, in October 2016,

the Postal Service indicated that it delivered mail to a post office near Rikers Island on a

daily basis. Mot. in Opp. Ex. 8. de Postal Service indicated that Rikers Island staff

were responsible for picking up the mail after delivery to the post office. Mot. in Opp.

Ex. 8.

In August 2016, Dawkins mailed a petition to file a late notice of claim with the

Bronx Supreme Court. Aff. ¶ 36. de court indicated its receipt of the petition in

February 2017. Aff. ¶ 37. It granted Dawkins permission to proceed in forma pauperis

upon payment of a $75 filing fee on September 27, 2017, although Dawkins alleges he

was never informed of this filing. Aff. ¶ 38. de Bronx court denied his petition in June

2018, finding that the application was made outside the applicable statute of limitations.

Mot. in Opp. Ex. 20.

C. Conditions of Confinement

In his affidavit, Dawkins describes two main issues with the conditions of his

confinement. First, he alleges that the mattresses he was given were too thin to support

any adult human, even a well one; he claims he told Katz, Ramos, Tillery, Saunders, and

Capt. Dawkins of this issue on September 8, 2016. Aff. ¶ 45. And, second, he alleges

that the air of his living quarters was of poor quality. In particular, ventilation was

limited and air ducts were filled with dust. AC ¶ 43. Mold accumulated in front of

windows, a ceiling had been damaged from water leaks, and there were pipes with

exposed fiberglass insulation. AC ¶ 43. He claims that he was also forced to breathe

exhaust fumes of idling vehicles waiting for clearance to enter the Rikers Island complex.

AC ¶ 44. Dawkins alleges these conditions caused him to suffer nose bleeds. AC ¶ 43.

He claims he told Tillery and defendant Deputy Warden Vaz of these air quality issues.

Aff. ¶ 42

In addition to his own averments, Dawkins documents these conditions through

the affidavit of a fellow inmate, see Mot. in Opp. Ex. 14, and a series of emails sent from

a staff attorney at the Legal Aid Society to Department of Correction officials, see Mot. in

Opp. Exs. 6, 12, 15. dere are over a dozen attached emails, mostly sent in May and

June of 2016. dey notify the Rikers officials, none of whom are named defendants, of

Dawkins’ complaints regarding his medical care, legal mail, and conditions of

confinement.

II. PROCEDURAL HISTORY

Dawkins filed the instant Complaint on December 19, 2017, and he requested

permission to proceed in forma pauperis. Docs. 1, 2, 5. On February 6, 2018, the Court

(McMahon, C.J.) granted Dawkins’ application. Doc. 6. dat complaint named several

defendants that had treated Dawkins at some point, none of whom are named in the

Amended Complaint: Dr. Lilian Lwin, Dr. Lueders Meno; Dr. Soula Priovolos, Dr.

Ronald Simon, and Ixel Cervera.

On March 8, 2018, to allow Dawkins to effect service on Lwin, Meno, Priovolos,

Simon, and Cervera, the Court (Sullivan, J.) instructed the Clerk of Court to issue

summonses as to those defendants and to deliver to the United States Marshals Service all

documents necessary to effect service. Doc. 8 at 2. de Court noted that each defendant

must be served within 90 days of the issue dates of the summonses. Id. at 2 (citing Fed.

R. Civ. P. 4(m)). de Court noted that it was Dawkins’ responsibility to request, if

necessary, an extension of time for service. Id. (citing Meilleur v. Strong, 682 F.3d 56, 63

(2d Cir. 2012)). And the Court warned Dawkins that failure to timely serve a defendant,

or to request an extension of time to effect service, may result in dismissal of the action as

to any unserved defendant. Id. (citing Fed. R. Civ. P. 4(m)). With respect to the

defendants employed by the Department of Correction, the Court directed the Clerk of

Court to notify the Department of Correction and the New York City Law Department of

the Court’s request that those defendants waive service. Id. at 2–3.

de Court then issued a Valentin Order directing the Law Department to ascertain

the names and addresses of two defendants unidentified in Dawkins’ Complaint and to

provide Dawkins and the Court with those names and addresses within 60 days. Id. at 3

(citing Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997)). de Court noted that upon

receipt of their identities, it would issue an order adding these defendants to the action

and requesting that they waive service. Id.

Following the Court’s omnibus order, the three moving defendants, Copeland,

Canady, and Capt. Dawkins, waived service of summons. Doc. 11. Waiver of service of

summons, however, was returned unexecuted as to the other defendants employed by the

Department of Correction. Docs. 14–16. Moreover, on May 4, 2018, the Law

Department identified Deputy Warden Vaz as the Deputy Warden for Programs at NIC

during the period relevant to Dawkins’ Complaint. Doc. 18. On May 14, 2018, service

was effected on Meno and Priovolos. Docs. 21–22. Service was returned unexecuted on

Lwin, Simon, and Cervera. See Docs. 14–16.

In a March 31, 2019 Opinion and Order, this Court dismissed any claims under 42

U.S.C. § 1983 against Lwin, Meno, Priovolos, Simon, Cervera because Dawkins failed to

allege any of these defendants were aware of excessive risk to Dawkins and failed to act

with reasonable care to mitigate any such risk. 2019 WL 1437049, at *9, Doc. 71 at 19.

It also dismissed any state law claims against them because his Complaint was not

brought within the applicable statute of limitations. Id.

de Court also dismissed without prejudice all claims against any unserved

defendants employed by the Department of Correction, namely Holiness, Rice, Scully,

Vaz, Katz, Saunders, and Tilley. 2019 WL 1437049, at *4–5, Doc. 71 at 9–11. Relying

on the previous Orders of Judge Sullivan, the Court found that Dawkins had not shown

good cause for why he had not been more diligent in serving the unserved defendants

before the 90-day deadline prescribed in Federal Rule of Civil Procedure 4(m). Id.

Finally, the Court dismissed the Complaint against Copeland, Canady, and Capt.

Dawkins without prejudice. de Court found, inter alia, that Dawkins had failed to

allege an injury arising from any alleged interference with his mail, had failed to allege

the personal involvement of these defendants in unconstitutional conditions of

confinement, and had failed to show that he put any of the these defendants on notice of

his medical needs. 2019 WL 1437049, at *5–7, Doc. 71 at 15–17. It also denied any

Monell claims against the defendants, and, because Dawkins has since been transferred

from NIC, any equitable relief. 2019 WL 1437049, at *8, Doc. 71 at 17.

Dawkins filed his Amended Complaint on June 13, 2019, adding Ramos,

Chowdhury (then as John Doe), Colon, Cooper, and Grace as defendants. Doc. 79. de

moving defendants filed their motion to dismiss on June 27. Doc. 80. dey filed an

additional motion to stay discovery on October 1 that is pending at this time. Doc. 92.

Dawkins requested the Court’s assistance in serving the newly added defendants

in a July 2019 letter. Doc. 84 at 3. de Law Department requested that the Court decline

to issue summonses and dismiss the claims sua sponte against these defendants under the

authority granted by 28 U.S.C. § 1915A(b). Doc. 85 at 2. de Court did not issue

summonses, but reserved decision on whether to dismiss the action against the unserved

defendants Doc. 88.

III. LEGAL STANDARD

“To survive a 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 plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. Although a plaintiff must allege sufficient facts to show “more

than a sheer possibility that a defendant has acted unlawfully,” id., “a complaint . . . does

not need detailed factual allegations” to survive a motion to dismiss, Twombly, 550 U.S.

at 555.

de question on a motion to dismiss “is not whether a plaintiff will ultimately

prevail but whether the claimant is entitled to offer evidence to support the claims.” Sikhs

for Justice v. Nath, 893 F. Supp. 2d 598, 615 (S.D.N.Y. 2012) (quoting Villager Pond,

Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995)). Consequently, when ruling on a

motion to dismiss pursuant to Rule 12(b)(6), the Court accepts all plausible and

nonconclusory factual allegations in the complaint as true and draws all reasonable

inferences in the plaintiff’s favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014); see

also Twombly, 550 U.S. at 556 (“[A] well-pleaded complaint may proceed even if it

strikes a savvy judge that actual proof of those facts is improbable. . . .”). “For purposes

of this rule, the complaint is deemed to include any written instrument attached to it as an

exhibit or any statements or documents incorporated in it by reference.” Chambers v.

Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (internal quotation marks omitted).

Finally, special considerations counsel in favor of relaxed pleading standards for

pro se plaintiffs. See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir.

2008) (noting that pro se complaints, “however inartfully pleaded, must be held to less

stringent standards” (internal quotation marks omitted)). Accordingly, in adjudicating the

motion to dismiss Dawkins’ Complaint, the Court looks beyond his Amended Complaint,

considers the factual allegations contained in his opposition papers, see Long v. Lafko,

254 F. Supp. 2d 444, 446 (S.D.N.Y. 2003), and interprets the totality of allegations in his

papers to raise the strongest claims they suggest, see Triestman v. Fed. Bureau of Prisons,

470 F.3d 471, 474–75 (2d Cir. 2006). As the Second Circuit has observed, a liberal

construction of pro se pleadings is especially important when dealing with civil rights

complaints, like Dawkins’ Amended Complaint. See Weinstein v. Albright, 261 F.3d 127,

132 (2d Cir. 2001). “However, even pro se plaintiffs asserting civil rights 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. N.Y. State Dep’t of Labor,

709 F. Supp. 2d 218, 224 (S.D.N.Y. 2010) (internal quotation marks and emphasis

omitted).

IV. THE MOVING DEFENDANTS’ MOTIONS

To succeed under Section 1983, Dawkins must allege that (1) defendants are state

actors or acted under color of state law at the time of the challenged action, and (2) the

challenged action deprived him of a right secured by the Constitution or federal law. Am.

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999). “Section 1983 itself creates

no substantive rights; it provides only a procedure for redress for the deprivation of rights

established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993).

To succeed against these individual defendants, Dawkins must establish their

“personal involvement in the claimed violation . . . .” Warren v. Pataki, 823 F.3d 125,

136 (2d Cir. 2016) (internal quotation omitted). He may do so by alleging 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.” Colon

v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).

A. Access to the Courts & Free Flow of the Mails

As with his original complaint, Dawkins alleges that the defendants unlawfully

interfered with his access to the courts. Under the First and Fourteenth Amendment,

incarcerated persons possess a constitutional right to access the courts, and this right

encompasses the right to send and receive legal mail. See West v. Rivera, No. 13 Civ.

3965 (RA), 2015 WL 997788, at *3 (S.D.N.Y. Mar. 6, 2015) (citing Davis v. Goord, 320

F.3d 346, 351 (2d Cir. 2003)). To establish a claim for unlawful interference with access

to the courts, a plaintiff must plead factual allegations establishing an “actual injury”; put

differently, “the plaintiff must ‘demonstrate that the prison hindered his efforts to pursue a

non-frivolous legal or administrative action.’” Id. (quoting Guarneri v. West, 495 F.

App’x 142, 144 (2d Cir. 2011)).

In its March 2019 Opinion and Order, the Court dismissed this claim because

Dawkins did not properly allege such an injury. He pleaded that he had attempted to

serve H+H with a notice of claim via the Comptroller’s office. Such service would have

been ineffective because H+H is a separate entity from the City and must be served

directly. See Scantlebury v. N.Y.C. Health & Hosps. Corp., 830 N.E.2d 292, 297 (N.Y.

2005) (“Here, plaintiff served a notice of claim on the City of New York. de proper—

and different — party was [H+H]. A party sustaining injury allegedly attributable to

these health facilities must file a verified notice of claim with [H+H] prior to the

commencement of a lawsuit.” (internal quotation marks and alterations omitted)).

Dawkins’ Amended Complaint (via the affidavit attached to his briefing papers)

newly alleges that he mailed the General Counsel of H+H a notice of claim, in addition to

the one he mailed the Comptroller’s office. de moving defendants now argue, however,

that serving H+H was never necessary because Dawkins only sought to hold the hospital

corporation liable under Section 1983. Claims against H+H under Section 1983 do not

require a notice of claim. See Mejía v. N.Y.C Health & Hosps. Corp., 16 Civ. 9706, 2018

WL 3442977, at *14 (S.D.N.Y. July 17, 2018).

But Dawkins’ allegations reach further than a civil-rights claim against the

physicians that treated him. His allegations include a claim that at least one doctor

employed by H+H diagnosed him with a cold while his lungs were filling with blood —

an allegation which, when read with the solicitude to which pro se pleadings are entitled,

suggests that Dawkins could have had a non-frivolous state law claim of negligence and

malpractice. Indeed, when arguing for the dismissal of the original Complaint against its

employees, H+H argued that Dawkins’ state law allegations were meritless in part

because he had failed to follow the notice of claim requirement. See Doc. 43 at 16 (citing

N.Y. Unconsol. Law § 7401(2)).

Furthermore, if a defendant had indeed interfered with his attempts to mail a

notice of claim, such action would have hindered his legal case. To successfully pursue a

claim against H+H, Dawkins needed to file notice of claim within 90 days after his cause

of action accrued. N.Y. Unconsol. Law § 7401(2). He was cared for by H+H between

January 2 and January 21, 2015, meaning, to be timely, he would have needed to file his

claim by April 21, 2015. He attempted to mail his claims on March 11 and March 30,

2015. As Dawkins pleads his claims, Copeland never told him that his mail had been

rejected or otherwise not sent until after the notice of claim period had expired. Viewing

the facts in the light most favorable to Dawkins and drawing all inferences in his favor,

the Court finds he would have been hindered if prison officials had interfered with his

mail at this time. de moving defendants do not present any argument to the contrary in

their briefing.

de Court also finds, again without any opposing argument from the defendants,

that Dawkins has properly pleaded Copeland’s personal involvement. He alleges that

Copeland did not record his legal mail in the out-going logbook, and that it was she who

collected both sets of notices from his dormitory mailbox. He further alleges that she

violated Department of Correction policy by failing to post his legal mail despite his not

having sufficient funds in his inmate account. As Scully, the prison cashier, indicated,

whether to post a letter when there were not sufficient funds was within the discretion of

the mail officer — in this case, Copeland. Accordingly, Dawkins’ claim against Copeland

for interference with access to the courts may proceed.1

Dawkins does not, however, plead the personal involvement of either Capt.

Dawkins or Canady in this alleged constitutional violation. At best, he complained of the

situation to both of these defendants after which they conducted investigations into the

matter. As the Court held in its earlier order, “a defendant’s mere receipt of a grievance is

1 In their motion, the defendants do not argue that they should be entitled to qualified immunity against

Dawkins’ access to the courts claim — only against his conditions of confinement and medical needs

claims. See Doc. 81 at 12–13; Doc. 105 at 9. In any event, Copeland would likely not be entitled to

qualified immunity because a prisoner’s right to send and receive legal mail is clearly established. See

Bellezza v. Holland, 09 Civ. 8434, 2011 WL 2848141, at *8 (S.D.N.Y. July 12, 2011) (denying qualified

immunity on motion to dismiss access to the courts and mails claim).

insufficient to show their personal involvement in a constitutional deprivation.” 2019 WL

1437049, at *8, Doc. 71 at 16 (citing Allah v. Annucci, No. 16 Civ. 1841 (KMK), 2017

WL 3972517, at *7 (S.D.N.Y. Sept. 7, 2017)). derefore, Dawkins has failed to allege a

claim of intereference with access to the courts against Capt. Dawkins and Canady.

Dawkins also fails to plead a violation of his constitutional right to the free flow

of the mails. Inmates have a First Amendment right to the “free flow of incoming and

outgoing mail.” Davis, 320 F.3d at 351. In light of this right, “[r]estrictions on prisoners’

mail are justified only if they further one or more of the substantial governmental

interests of security, order, and rehabilitation, and must be no greater than is necessary or

essential to the protection of the particular governmental interest involved.” Id. (internal

quotation marks and alterations omitted). For liability to attach, “the inmate must show

that the prison officials ‘regularly and unjustifiably’ interfered with the incoming [or

outgoing] legal mail.” Id. (citation omitted).

Dawkins’ allegations in this regard are unchanged from his original Complaint.

He has failed to show in a nonconclusory manner an “ongoing practice of censorship” or

that the defendants’ actions “chilled [his] right of access to the courts or impaired the

legal representations he received.” Id. At best, his allegations amount to one or two

instances of his mail being stopped, rather than a long-term effort to block his

communication with the outside world. de allegations of violations of his right to free

flow of the mails are dismissed against the moving defendants.

B. Conditions of Confinement

“Jailed individuals are protected against ‘deliberate indifference’ to ‘conditions

that pose a substantial risk of serious harm’ by the Eighth Amendment or the Fourteenth

Amendment.” Howard v. Brown, 15 Civ. 9930, 2018 WL 3611986, at 4 (July 25, 2018)

(citation omitted). “A pretrial detainee’s claims of unconstitutional conditions of

confinement are governed by the Due Process Clause of the Fourteenth Amendment,

rather than the Cruel and Unusual Punishments Clause of the Eight Amendment.”

Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (citations omitted). dis is so because

“pretrial detainees have not been convicted of a crime and thus may not be punished in

any manner—neither cruelly and unusually nor otherwise.” Id. (internal quotation marks

and alterations omitted). dat said, “[a pretrial] detainee’s rights are ‘at least as great as

the Eighth Amendment protections available to a convicted prisoner.’” Id. (quoting City

of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)).

To establish a Section 1983 claim for allegedly unconstitutional conditions of

confinement, a plaintiff must make two showings. Darnell, 849 F.3d at 29. First, the

plaintiff must “show[] that the challenged conditions were sufficiently serious to

constitute objective deprivations of the right to due process.” Id.; see also id. at 30

(“Under both the Eighth and Fourteenth Amendments, to establish an objective

deprivation, the inmate must show that the conditions, either alone or in combination,

pose an unreasonable risk of serious damage to his health . . . .” (internal quotation marks

omitted)). Second, the plaintiff must “show[] that the officer[s] acted with at least

deliberate indifference to the challenged conditions.” Id. Of note, the requisite mens rea

to establish deliberate indifference in cases involving pretrial detainees (and thus, the

Fourteenth Amendment) diverges from the mens rea requirement in cases involving

convicted persons (and thus, the Eighth Amendment). Id. at 34–35. de Eighth

Amendment imposes a subjective mens rea standard: To be liable, the prison official

must “know[] of and disregard[] an excessive risk to inmate health or safety.” Id. at 32

(quoting Farmer, 511 U.S. at 837). In contrast, however, the Fourteenth Amendment

applies an objective mens rea standard: de official need only “recklessly fail[] 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 (citing Kingsley v. Hendrickson, 135 S. Ct.

2466 (2015)).

Dawkins allegations here are largely unchanged from the allegations in his

original Complaint. As the Court ruled in its March 2019 Opinion and Order, “assuming

Dawkins has pleaded sufficiently serious conditions of confinement, Dawkins fails to

plead factual allegations sufficient to give rise to an inference of deliberate indifference

on the part of the Correction Defendants.” 2019 WL 1437049, at *8, Doc. 71 at 15. de

two relevant updates to his Complaint do not save this claim.

First, he alleges that he complained to Dawkins regarding his thin mattress in

September 2016 at an inmate council meeting and in February 2017 following the search

of his cell by Cooper, Colon, and Grace. But Dawkins does not allege that he told Capt.

Dawkins that the thin mattress posed any “excessive risk to [his] health or safety” or that

Capt. Dawkins should have known of that risk. Darnell, 849 F.3d at 35.

Second, he alleges that a staff attorney at the Legal Aid Society sent a number of

emails to prison officials, relaying Dawkins’ complaints about his condition. But the

emails were addressed to none of the defendants in this action, and Dawkins has failed to

plead any facts suggesting that any of the defendants were ever aware or should have

been aware of these emails, much less whether those emails communicated any excessive

risk to Dawkins’ safety. See Darnell, 849 F.3d at 35.

Accordingly, Dawkins’ claims of unconstitutional conditions of confinement are

dismissed against all moving defendants.

C. Deliberate Indifference to Medical Needs

To sustain a claim for deliberate indifference to serious medical needs, Dawkins

must show that (1) he had a serious medical condition, yet (2) he was treated with

deliberate indifference by the defendant-officials. See Gersbacher v. City of New York,

134 F. Supp. 3d 711, 724 (S.D.N.Y. 2015) (citing Caiozzo v. Koreman, 581 F.3d 63, 72

(2d Cir. 2009)). For pretrial detainees, the mens rea element of a claim for deliberate

indifference of medical needs “is judged by the same deliberate indifference standard

articulated in Darnell.” Sanders v. City of New York, No. 16 Civ. 7426 (PGG), 2018 WL

3117508, at *8 (S.D.N.Y. June 25, 2018) (internal quotation marks omitted).

de Court dismissed Dawkins’ indifference to medical needs claims because it

found he failed to plead that he had informed any defendant of his condition. 2019 WL

1437049, at *8, Doc. 71 at 17. He attempts to address the Court’s finding by alleging that

the defendants must have known of his condition because he had given full medical

histories to prison medical officials during his intake and subsequent treatment. He also

alleges he told Capt. Dawkins that he needed a thicker mattress in February 2017 when

his medical mattress was taken away.

But, as with the emails documenting his conditions of confinement, Dawkins has

failed to plead facts that any of the defendants read or should have read his medical

charts. And he does not plead that he actually informed Capt. Dawkins of his injured

back or its connection to the need for a thicker mattress. He makes no allegations

whatsoever concerning Canady and Copeland. Accordingly, the indifference to medical

needs claims are dismissed against the moving defendants.

* * *

For the foregoing reasons, all claims are dismissed against Capt. Dawkins and

Canady in their individual capacities.2 Given that Dawkins, the plaintiff, has been

afforded an opportunity to replead his allegations already, the Court dismisses those

claims with prejudice. de claim against Copeland in her individual capacity for

interfering with Dawkins’ access to the courts survives; all other claims against her are

dismissed with prejudice.

Furthermore, all claims against the moving defendants in their official capacities

are dismissed with prejudice. For such claims to have survived, Dawkins must have

2 Because the Court does not find any constitutional violations for the claims it has dismissed against the

moving defendants, it does not reach the question of whether the moving defendants are entitled to

qualified immunity for those claims.

alleged that the violations of his rights were due to “a policy, custom, or practice of the

municipal defendant.” Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir. 2004).

He did not do so here in relation to the one claim that survives, against Copeland.

Finally, Dawkins mentions in his Amended Complaint that the defendants

prevented him from contacting consular officials. He does not provide any factual

allegations supporting this allegation at all, and so any claims based upon it are dismissed

with prejudice.

V. NON-MOVING DEFENDANTS

de Court will now address the status of the non-moving defendants in this action.

dey fall into three groups. First are the defendants who had been named in Dawkins’

original Complaint: Holiness, Scully, Rice, Katz, Saunders, Vaz, and Tillery. Second are

Ramos and Chowdhury, newly added medical professionals. And third are Cooper,

Colon, and Grace, who are all Department of Correction Employees.

de Court previously dismissed Holiness, Scully, Rice, Katz, Saunders, and

Tillery in its March 2019 Opinion and Order because Dawkins had made no attempt to

serve them with process in a timely fashion. 2019 WL 1437049, at *4–5, Doc. 71 at 9–

10. dat decision, based on Judge Sullivan’s decision of October 19, 2018 is the law of

the case. See Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers &

Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003). As there has been no “intervening

change of controlling law, the availability of new evidence, or the need to correct a clear

error or prevent a manifest injustice,” the Court will again dismiss these defendants from

the case, with prejudice. Id.

de Court dismisses the other defendants under the authority granted by 28 U.S.C.

§ 1915A. In cases by prisoners brought against governmental officers, the Court may

dismiss claims sua sponte if it determines they are “frivolous, malicious, or fail[] to state

a claim upon which relief may be granted.” § 1915A(b)(1).

de claims against Ramos and Chowdhury fail to state a claim because they are

untimely. de statute of limitations for suits under Section 1983 is three years. See

Pinaud v. County of Suffolk, 52 F.3d 1139 (2d Cir. 1995). Dawkins’ latest interaction

with Chowdhury was in January 2015, and he alleges that he was treated by Ramos in

January 2015, as well.3 de date he filed his Amended Complaint, June 13, 2019, is well

after the three-year limitations period had expired. de claims do not relate back to the

allegations in the original Complaint because both parties are new to this matter. See

Harris v. Viau, No. 17 Civ. 9746 (KMK), 2019 WL 1331632, at *5 (S.D.N.Y. May 3,

2019) (finding Federal Rule of Civil Procedure 15 “inapplicable” because when “an

amendment adds a previously unmentioned party.” (internal quotation removed)).4

Accordingly, Ramos and Chowdhury are dismissed as defendants.

Finally, the claims against Colon, Cooper, and Grace are dismissed because they

fail to state a claim. Dawkins fails to allege that Colon or Grace knew or should have

known of his medical conditions when they searched his cell and Grace directed Colon to

remove the mattress. Cooper, though Dawkins told him he needed the mattress, checked

with Katz, a doctor, before taking it away. dis consultation with a medical professional

cannot form the basis for a claim of deliberate indifference to Dawkins’ medical needs.

See Ward v. Capra, No. 16 Civ. 6533 (KMK), 2018 WL 1578398, at *6 (S.D.N.Y. Mar.

29, 2018) (“Even if [defendant] had knowledge of the grievance, a prison administrator is

permitted to rely upon and be guided by the opinions of medical personnel concerning the

proper course of treatment administered to prisoners, and cannot be held to have been

personally involved if he does so.”).

3 Dawkins does allege that he informed Ramos of his thin mattress in September 2016. To the extent

Dawkins has a claim arising from this interaction, it is dismissed for the same reason the claims are

dismissed against Capt. Dawkins, who was at the same meeting.

4 Ye Court finds it appropriate to dismiss on this basis because Dawkins had the opportunity to counter any

limitations-based defense in his opposition to H+H’s motion to dismiss the original complaint. See Abbas

v. Dixon, 480 F.3d 636, 640 n.3 (2d Cir. 2007).

Because the Court is dismissing these claims sua sponte, and because Dawkins

has not had an opportunity to address the deficiencies with his Amended Complaint as

they relate to Colon, Cooper, and Grace, the Court will only dismiss the claims without

prejudice. Dawkins shall be permitted one more opportunity to plead his complaints

against those three defendants.

VI. CONCLUSION

For the foregoing reasons, the Court makes the following rulings:

§ Canaday’s and Capt. Dawkins’ motions to dismiss are GRANTED in their

entirety. de claims against them are DISMISSED with prejudice.

§ All claims against Holiness, Scully, Katz, Saunders, Rice, Vaz, Tillery, Ramos,

and Chowhurdy are DISMISSED, sua sponte, with prejudice.

§ de Amended Complaint is DISMISSED as to Grace, Colon, and Cooper,

without prejudice.

§ Copeland’s motion to dismiss the Amended Complaint is GRANTED in part

and DENIED in part. de Section 1983 claim based upon alleged unlawful

interference with access to the courts survives. All other claims against her

are DISMISSED with prejudice.

§ de moving defendants’ motion to stay discovery pending the resolution of

this motion, Doc. 92, is DENIED as moot.

de Court directs the parties to proceed as follows:

§ Should Dawkins wish to file a Second Amended Complaint amending his

claims against Cooper, Colon, and Grace, he must do so by June 1, 2020.

Upon receipt, the Court will screen it and issue orders of service, if warranted.

He may not add new defendants or alter the allegations made against

Copeland.

§ Copeland is directed to answer the Second Amended Complaint, confer with

Dawkins on a discovery plan, and submit a status report to the Court by June

1, 2020.

de Clerk of Court is respectfully directed to terminate from the case Canaday,

Capt. Dawkins, Holiness, Scully, Katz, Rice, Saunders, Vaz (a.k.a. “Vas” and “Executive

Director of Programs”), Tillery, Ramos, and Chowdhury (a.k.a. “Dr. John Doe”). The

Clerk is also directed to terminate the motions, Docs. 80, 92.

It is SO ORDERED.

Dated: March 31, 2020

New York, New York bt \ Ds

EDGARDO RAMOS, U.S.D.J.

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