# Brown v. NYCDOC MDC

> District Court, S.D. New York · April 17, 2020

URL: https://www.frixlaw.com/law-library/cases/10322357

## Case

- **Court:** District Court, S.D. New York
- **Decided:** April 17, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SHAMONE BROWN,
Plaintiff,
-against- 20-CV-2144 (LLS)
WARDEN NYCDOC MDC; ORDERTO AMEND
CORRECTIONAL JOHN DOE OFFICER 1
& 2; CITY OF NEW YORK,
Defendants.
LOUIS L. STANTON, United States District Judge:
Plaintiff, currently detained in the Otis Bantum Correctional Facility on Rikers Island,
brings this pro se action under 42 U.S.C. §1983, alleging that Defendants violated his federal
constitutional rights.By order datedApril 9, 2020,the Court granted Plaintiff’s request to
proceed without prepayment of fees, that is, in forma pauperis (“IFP”).1 For the reasons set forth
below, the Court grants Plaintiff leave to file an amended complaint within sixty days of the date
of this order.
STANDARD OF REVIEW
The Prison Litigation Reform Act requires that federal courts screen complaints brought
by prisoners who seek relief against a governmental entity or an officer or employee of a
governmental entity. See28 U.S.C. § 1915A(a). The Court must dismiss a prisoner’s IFP
complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief from a defendant who is immune
from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639

1 Prisoners are not exempt from paying the full filing fee even when they have been
granted permission to proceed IFP. See 28 U.S.C. §1915(b)(1).
(2d Cir. 2007).The Court must also dismiss a complaint if the court lacks subject matter
jurisdiction. See Fed. R. Civ. P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to
construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret
them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470

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

the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals
of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550
U.S.at 555.After separating legal conclusions from well-pleaded factual allegations, the Court
must determine whether those facts make it plausible –not merely possible –that the pleader is
entitled to relief.Id.
BACKGROUND
The following allegations are taken from the complaint. On or about May 8, 2019, three
inmates entered Plaintiff’s cell and rapedand physically assaulted him. The inmates forcibly
performed oral sex on Plaintiff, fondled him, and tried to “yank” his penis and testicles off. (ECF
No. 2, at 4.) He alleges that two correction officers –sued here as John Does –“left their post
and...allowed [the assault] to happen” to him. (Id.at 4.)
Plaintiff filed a notice of claim with the New York City Comptroller, but his claim was
denied for failure to comply with the statutory filing deadlines.2 (See id.at 15.)
He sues the Warden of MDC, two John Doe correction officers, and the City of New York

and seeks money damages.
DISCUSSION
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege both that:(1) a right
secured by the Constitution or laws of the United States was violated, and (2) the right was
violated by a person acting under the color of state law, or a “state actor.” West v. Atkins, 487
U.S. 42, 48-49 (1988).
A. Claims Against the City of New York
When a plaintiff sues a municipality under §1983, it is not enough for the plaintiff to
allege that one of the municipality’s employees or agents engaged in some wrongdoing. The
plaintiff must show that the municipality itself caused the violation of the plaintiff’s rights. See
Connick v. Thompson,131 S. Ct. 1350, 1359 (2011) (“A municipality or other local government

may be liable under this section [1983] if the governmental body itself ‘subjects’ a person to a
deprivation of rights or ‘causes’ a person ‘to be subjected’ to such deprivation.”) (quoting Monell

2 Documents attached to the complaint indicate that Plaintiff submitted his notice of
claim on May 17, 2019. (Id.at 9.) By letter datedJune 17, 2019, the Comptroller’s office
rejected Plaintiff’s Notice of Claim because it was not served in compliance with General
Municipal Law 50-e. That letter stated that if Plaintiff wished to pursue his claim, he must file
his Notice of Claim by proper method of service within ten days of the date of the letter. (Id.at
11.) On September 19, 2019, Plaintiff resent thenotice of claim to the comptroller’s office via
certified mail. (Id.at 12.) By letter dated September 26, 2019, the Comptroller’s office denied
Plaintiff’s claim because it was not filed within 90 days of the date of the incident, as required by
the municipal law. (Id.at 15.)
v. Dep’t of Soc. Servs. of City of New York,436 U.S. 658, 692 (1978)); Cash v. Cnty. of Erie, 654
F.3d 324, 333 (2d Cir. 2011). In other words, to state a §1983 claim against a municipality, the
plaintiff must allege facts showing (1) the existence of a municipal policy, custom, or practice,
and (2) that the policy, custom, or practice caused the violation of the plaintiff’s constitutional
rights. See Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); Bd. of Cnty. Comm’rs of

Bryan Cnty. v. Brown,520 U.S. 397, 403 (1997) (internal citations omitted).
Here, Plaintiff fails to allege facts showing that his constitutional rights were violated by
a policy, practice, or custom of the City of New York. The Court therefore dismisses Plaintiff’s
§1983 claims against the City of New York. 28 U.S.C. §1915(e)(2)(B)(ii).
B. Failure to Protect
Prison officials are required to take reasonable measures to guarantee the safety of
prisoners, including protecting them from harm caused by other prisoners. See Farmer v.
Brennan,511 U.S. 825, 832-33(1994); Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997). To
state a cognizable §1983 failure-to-protect claim, a prisoner must show that: (1) he is
incarcerated under conditions “posing a substantial risk of serious harm”; and (2) prison officials

acted with “deliberate indifference” to his safety. Farmer, 511 U.S. at 832-33; see Hayes v.
N.Y.C. Dep’t of Corr., 84 F.3d 614, 620 (2d Cir. 1996).
Plaintiff was a pretrial detainee at the time of the incident.A pretrial detainee assertinga
failure-to-protect claim under the Due Process Clause must pleadtwo elements: (1)an
“objective” element, which requires a showing that the risk of harmis sufficiently serious, and
(2) a “mental” element, which requires a showing that the officer knew or should have known of
the risk of serious harm but acted with deliberate indifference to that risk.Darnell v. Pineiro, 849
F.3d 17, 29 (2d Cir. 2017).3 In other words, a pretrial detainee must allege facts suggesting the
defendants “acted intentionally to impose the alleged condition, or recklessly failed to act with
reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though
the defendant-official knew, or should have known, that the condition posed an excessive risk to
health or safety.” Id.at 35. The mere negligence of a correctional official is not a basis for a

claim of a federal constitutional violation under §1983.See Daniels v. Williams, 474 U.S. 327,
335-36 (1986); Davidson v. Cannon, 474 U.S. 344, 348 (1986).
Plaintiff’s complaint alleges only that the defendant correction officers “left their post”
and therefore “allowed” the assault to happen.(ECF No. 2, at 4.) Plaintiff does not allege any
facts showing that the correction officers “acted intentionally to impose” the risk of harm or
“recklessly failed to act with reasonable care to mitigate the risk.” Darnell,849 F.3d at 35. The
Court cannot infer from Plaintiff’s allegations that the correction officers were deliberately
indifferent to his safety by failing to take reasonable measures to protect him. He fails to set forth
any facts showing that the correction officers knew or should have known, before the attack

occurred, of a substantial risk of serious harm that the other inmates posedto Plaintiff, or that the
correction officers acted recklessly in failing to reduce or eliminate the risk of harm. Plaintiff
therefore fails to state a claim on which relief may be granted. 28 U.S.C. §1915(e)(2)(B)(ii).
LEAVE TO AMEND
Plaintiff proceeds inthis matter without the benefit of an attorney. District courts
generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its

3 “Although Darnell involved a Fourteenth Amendment challenge to a prisoner’s
conditions of confinement, its holding applies with equal measure to failure to protect claims.”
Taylor v. City of New York, No. 16-CV-7857 (NRB), 2018 WL 1737626, at *12 (S.D.N.Y. Mar.
27, 2018).
defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir.
2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has
cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to
amend at least once when a liberal reading of the complaint gives any indication that a valid
claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v.

USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because Plaintiff may be able to allege
additional facts to state a valid §1983 claim for failure-to-protect, the Court grants Plaintiff 60
days’ leave to amend his complaint to detail his claims.
First, Plaintiff must name as the defendant(s) in the caption4 and in the statement of claim
those individuals who were allegedlyinvolved in the deprivation of his federal rights. If Plaintiff
does not know the name of a defendant, he may refer to that individual as “John Doe” or “Jane
Doe” in both the caption and the body of the amended complaint.5The naming of John Doe
defendants, however, does not toll the three-year statute of limitations period governing this
action and Plaintiff shall be responsible for ascertaining the true identity of any “John Doe”

defendants and amending his complaint to include the identity of any “John Doe” defendants
before the statute of limitations period expires. Should Plaintiff seek to add a new claim or party
after the statute of limitations period has expired, he must meet the requirements of Rule 15(c) of
the Federal Rules of Civil Procedure.

4The caption is located on the front page of the complaint. Each individual defendant
must be named in the caption. Plaintiff may attach additional pages if there is not enough space
to list all of the defendants in the caption.If Plaintiff needs to attach an additional page to list all
defendants, he should write “see attached list” on the first page of the Amended Complaint. Any
defendants named in the caption must also be discussed in Plaintiff’s statement of claim.
5 For example, a defendant may be identified as: “Correction Officer John Doe #1 on
duty August 31, 2010, at Sullivan Correctional Facility, during the 7-3 p.m. shift.”
In the statement of claim, Plaintiff must provide a short and plain statement of the
relevant facts supporting each claim against each defendant named in the amended complaint.
Plaintiff is also directed to provide the addresses for any named defendants. To the greatest
extent possible, Plaintiff’s amended complaint must:
a) give the names and titles of all relevant persons;

b) describe all relevant events, stating the facts that support Plaintiff’s case including
what each defendant did or failed to do;
c) give the dates and times of each relevant event or, if not known, the approximate date
and time of each relevant event;
d) give the location where each relevant event occurred;
e) describe how each defendant’s acts or omissions violated Plaintiff’s rights and
describe the injuries Plaintiff suffered; and
f) state what relief Plaintiff seeks from the Court, such as money damages, injunctive
relief, or declaratory relief.
Essentially, the body of Plaintiff’s amended complaint must tell the Court: who violated
his federally protected rights; what facts show that his federally protected rights were violated;
when such violationoccurred; where such violationoccurred; and whyPlaintiff is entitled to
relief. Because Plaintiff’s amended complaint will completely replace, not supplement, the
original complaint,any facts or claims that Plaintiff wishes to maintain must be included in the
amended complaint.
CONCLUSION
The Court dismisses Plaintiff’s §1983 claims against the City of New York for failure to
state a claim on which relief may be granted. 28 U.S.C. §1915(e)(2)(B)(ii).
The Court grants Plaintiff leave to file an amended complaint that complies with the
standards set forth above. Plaintiff must submit the amended complaint to this Court’s Pro Se
Intake Unitwithin sixty days of the date of this order, caption the document as an “Amended
Complaint,” and label the document with docket number 20-CV-2144 (LLS). An Amended Civil
Rights Complaint form is attached to this order. No summons will issue at this time. If Plaintiff
fails to comply within the time allowed, and he cannot show good cause to excuse such failure,
the Court will dismiss the complaint for failure to state a claim upon which relief may be
granted.
This order is to be mailed in chambers.
SO ORDERED.
Dated: April 17, 2020
New York, New York
Louis L. Stanton
U.S.D.J.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW Y O R K

(In the space above enter the full name(s) of the plaintiff(s).) AMENDED
COMPLAINT
-against- under the Civil Rights Act,
42 U.S.C. § 1983

Jury Trial: Q Yes Q No
(check one)

____ Civ. _________ ( )

(In the space above enter the full name(s) of the defendant(s). If you
cannot fit the names of all of the defendants in the space provided,
please write “see attached” in the space above and attach an
additional sheet of paper with the full list of names. The names
listed in the above caption must be identical to those contained in
Part I. Addresses should not be included here.)
I. Parties in this complaint:
A. List your name, identification number, and the name and address of your current place of
confinement. Do the same for any additional plaintiffs named. Attach additional sheets of paper
as necessary.
Plaintiff’s Name_____________________________________________________________
ID#_______________________________________________________________
Current Institution___________________________________________________
Address___________________________________________________________
__________________________________________________________________
B. List all defendants’ names, positions, places of employment, and the address where each defendant
may be served. Make sure that the defendant(s) listed below are identical to those contained in the
above caption. Attach additional sheets of paper as necessary.
Defendant No. 1 Name ___________________________________________ Shield #_________
Where Currently Employed __________________________________________
Address __________________________________________________________
_________________________________________________________________
Address __________________________________________________________
_________________________________________________________________
Defendant No. 3 Name ___________________________________________ Shield #_________
Where Currently Employed __________________________________________
Address __________________________________________________________
_________________________________________________________________
Who did
what? Defendant No. 4 Name ___________________________________________ Shield #_________
Where Currently Employed __________________________________________
Address __________________________________________________________
_________________________________________________________________
Defendant No. 5 Name ___________________________________________ Shield #_________
Where Currently Employed __________________________________________
Address __________________________________________________________
_________________________________________________________________
II. Statement of Claim:
State as briefly as possible the facts of your case. Describe how each of the defendants named in the
caption of this complaint is involved in this action, along with the dates and locations of all relevant events.
You may wish to include further details such as the names of other persons involved in the events giving
rise to your claims. Do not cite any cases or statutes. If you intend to allege a number of related claims,
number and set forth each claim in a separate paragraph. Attach additional sheets of paper as necessary.
A. In what institution did the events giving rise to your claim(s) occur?
_______________________________________________________________________________
_______________________________________________________________________________
B. Where in the institution did the events giving rise to your claim(s) occur?
_______________________________________________________________________________
C. What date and approximate time did the events giving rise to your claim(s) occur?
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
D. Facts:__________________________________________________________________________
_____________________________________________________________________________________
What
happened _____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
Was _____________________________________________________________________________________
anyone
else _____________________________________________________________________________________
involved?
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________

Who else
saw what
happened? III. Injuries:
If you sustained injuries related to the events alleged above, describe them and state what medical
treatment, if any, you required and received.
______________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
______________________________________________________________________________________
IV. Exhaustion of Administrative Remedies:
The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), requires that “[n]o action shall be
brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.” Administrative remedies are also known as grievance procedures.
A. Did your claim(s) arise while you were confined in a jail, prison, or other correctional facility?
Yes ____ No ____
events giving rise to your claim(s).
_____________________________________________________________________________________
_____________________________________________________________________________________
______________________________________________________________________________________
B. Does the jail, prison or other correctional facility where your claim(s) arose have a grievance
procedure?
Yes ____ No ____ Do Not Know ____
C. Does the grievance procedure at the jail, prison or other correctional facility where your claim(s)
arose cover some or all of your claim(s)?
Yes ____ No ____ Do Not Know ____
If YES, which claim(s)?
_______________________________________________________________________________
D. Did you file a grievance in the jail, prison, or other correctional facility where your claim(s) arose?
Yes ____ No ____
If NO, did you file a grievance about the events described in this complaint at any other jail,
prison, or other correctional facility?

Yes ____ No ____
E. If you did file a grievance, about the events described in this complaint, where did you file the
grievance?
_______________________________________________________________________________
1. Which claim(s) in this complaint did you grieve?
______________________________________________________________________________
_______________________________________________________________________________
2. What was the result, if any?
_______________________________________________________________________________
_______________________________________________________________________________
3. What steps, if any, did you take to appeal that decision? Describe all efforts to appeal to
the highest level of the grievance process.
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
F. If you did not file a grievance:
1. If there are any reasons why you did not file a grievance, state them here:
_________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
2. If you did not file a grievance but informed any officials of your claim, state who you
informed, when and how, and their response, if any:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

G. Please set forth any additional information that is relevant to the exhaustion of your administrative
remedies.
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Note: You may attach as exhibits to this complaint any documents related to the exhaustion of your
administrative remedies.
V. Relief:
State what you want the Court to do for you (including the amount of monetary compensation, if any, that
you are seeking and the basis for such amount).
VI. Previous lawsuits:
A. Have you filed other lawsuits in state or federal court dealing with the same facts involved in this
O thn ese action?
claims
Yes ____ No ____
B. If your answer to A is YES, describe each lawsuit by answering questions 1 through 7 below. (If
there is more than one lawsuit, describe the additional lawsuits on another sheet of paper, using
the same format.)
1. Parties to the previous lawsuit:
Plaintiff
Defendants
2.Court (if federal court, name the district; if state court, name the county) ________________

3. Docket or Index number
4. Name of Judge assigned to your case__________________________________________
5. Approximate date of filing lawsuit
6. Is the case still pending? Yes ____ No ____
If NO, give the approximate date of disposition__________________________________
7. What was the result of the case? (For example: Was the case dismissed? Was there
judgment in your favor? Was the case appealed?) _______________________________
________________________________________________________________________
________________________________________________________________________
C. Have you filed other lawsuits in state or federal court otherwise relating to your imprisonment?
On
other Yes ____ No ____
claims
D. If your answer to C is YES, describe each lawsuit by answering questions 1 through 7 below. (If
there is more than one lawsuit, describe the additional lawsuits on another piece of paper, using
the same format.)
1. Parties to the previous lawsuit:
Plaintiff
Defendants
2. Court (if federal court, name the district; if state court, name the county) ___________

3. Docket or Index number
4. Name of Judge assigned to your case_________________________________________
5. Approximate date of filing lawsuit
6. Is the case still pending? Yes ____ No ____
If NO, give the approximate date of disposition_________________________________
7. What was the result of the case? (For example: Was the case dismissed? Was there
judgment in your favor? Was the case appealed?) ______________________________
________________________________________________________________________
_________________________________________________________________________
I declare under penalty of perjury that the foregoing is true and correct.
Signed this day of , 20 .
Signature of Plaintiff _____________________________________
Inmate Number _____________________________________
Institution Address _____________________________________
_____________________________________
_____________________________________
_____________________________________
Note: All plaintiffs named in the caption of the complaint must date and sign the complaint and provide
their inmate numbers and addresses.
I declare under penalty of perjury that on this _____ day of _________________, 20__, I am delivering
this complaint to prison authorities to be mailed to the Pro Se Office of the United States District Court for
the Southern District of New York.
Signature of Plaintiff: _____________________________________

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10322357. Public record. Not legal advice.