affirming district court’s dismissal under Rule 12(b)(6) because three brief encounters with ETS “alleged only de minimis injury, and, hence, did not amount to an Eighth Amendment violation”
How later courts described this case
- affirming district court’s dismissal under Rule 12(b)(6) because three brief encounters with ETS “alleged only de minimis injury, and, hence, did not amount to an Eighth Amendment violation”
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT |S CNICALLY FILED |]
SOUTHERN DISTRICT OF NEW YORK □□
CEDRIC REID, [oo ores haishiomtatreat etreemens □□
Plaintiff, MEMORANDUM DECISION
: AND ORDER
-V- :
: 20 CV. 644 (GBD) (JLC)
THE CITY OF NEW YORK, et al., :
Defendants. :
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GEORGE B. DANIELS, United States District Judge:
Pro se Plaintiff Cedric Reid brings this action pursuant to 42 U.S.C. § 1983 against various
City and State Defendants.
Specifically, Plaintiff asserts a total of 11 allegations of violations of his constitutional right
to humane conditions of confinement and adequate medical treatment. City and State Defendants
move to dismiss Plaintiff's complaint for failure to state a claim upon which relief can be granted,
pursuant to Federal Rule of Civil Procedure (“FRCP”) 12(b)(6), and lack of subject matter
jurisdiction pursuant to FRCP 12(b)(1). (ECF Nos. 45, 51.)
Before this Court is Magistrate Judge Cott’s August 6, 2021 Report and Recommendation
(the “Report”), recommending that Defendants motions to dismiss be granted. (Report at 1, 55.)
Magistrate Judge Cott advised the parties that failure to file timely objections to the Report would
constitute a waiver of those objections on appeal. (/d. at 55.) No objections have been filed.
Having reviewed the Report for clear error and finding none, this Court ADOPTS the Report in
full.
L. FACTUAL BACKGROUND!
From September 16, 2016 to October 30, 201 7, Plaintiff Was a pretria] detainee under New
York City custody, (Report at 3.) On October 31, 2017, Plaintiff was Convicted. (/d.) On May
14, 2018 Plaintiff was transferred to the Custody of New York State. (/d at 7.)
a. Exposure to Asbestos
Plaintiff alleges that from September 23, 2016 through March 24, 2017, he often had to
walk through a corridor infested with asbestos to reach institutiona] Services and programs within
the Eric M. Taylor Center (EMTC”), (Report at 4.) On occasion, the prison facility’s alarm
would ring and the officer escorting Plaintiff through the corridor would instruct Plaintiff to “put
[his] hands on the wall.” (d.) Plaintjfe alleges that asbestos-covered Pipes near the wall were
“less than 1 foot away” from his face and he had to keep his hands on the wall for 15to 20 minutes
while the alarm rang. (/d.) On December 22, 2016, Plaintiff submitted a grievance regarding his
€xposure to asbestos and received a Fesponse on January 4, 2017 Stating that there was “no
knowledge of any Asbestos inside of EMTC.” (/d) However, the City Department of Corrections
allegedly conducted an “Asbestos Abatement Project” to remove asbestos from the corridors jn
December 2016, (/d. at 4-5.)
b. Unsupportive Mattress
From October 2016 to March 14, 2018, Plaintiff alleges that his cell mattress was
ort at 5.) On October 31, 2016, Plaintiff
im sharp back pain. (Rep
unsupportive and caused him sharp . ine injuries to the backs of inmates
submitted a grievance report noting that mattresses were “causing 1nj
—- ro . nd is set forth in greater detail in ate ton
lees hc Res) deine ene a
a ST chee Mie Cake co
(Report at 2) Plaintiff's opposition papers. (E
for the first time in
...” (See Compl., ECF No. 2 at 47, 51.) Plaintiff requested a “double mattress” but the request
was denied. (Report at 5.)
c. Inadequate Footwear
From December 2016 through March 2016, Plaintiff wore “canvass facility-issued”
sneakers which he claimed were inadequate for outdoor recreation during the winter. (Report at
6.) The footwear allegedly aggravated Plaintiff's pre-existing neuropathy” and caused numbness
in his toes, a tingling sensation, and a “pins and needles” feeling. Ud.) On December 22, 2016,
Plaintiff submitted a grievance regarding the footwear and received a response that the
“institutional footwear had been approved/implemented by BOC.” (/d.)
d. Exposure to Tuberculosis
From April 6, 2018 to an unspecified date, Plaintiff alleges that he was exposed to
tuberculosis since the City Defendants failed to locate and isolate an inmate who tested positive
for the disease. (Report at 7.)
e. Premature Release from HHC’s Medical Care
Plaintiff alleges that on May 14, 2018, he was prematurely transferred from City custody
and treatment at New York City Health and Hospitals Corporation (“HHC”) to State custody.
(Report at 7.) At the time of the transfer, Plaintiff claims he had an upcoming physical therapy
session scheduled on May 24, 2018 at HHC for a rotator cuffinjury. (/d. at 7-8.)
f. Inadequate Ventilation and Exposure to Second-Hand Smoke
Plaintiff alleges that he is a non-smoker with pre-existing respiratory conditions (chronic
obstructive pulmonary disease and asthma) and was exposed to second-hand smoke “as prevalent
then (July 9, 2018) as it was in the early 90s... .” while in State custody. (Compl. { 9C.) He
2 Neuropathy is a condition that caused Reid to experience nerve pain and sensations such as tingling,
electric shocks, cramps, spasms, and numbness. (Compl. { 10C; Report at 6).
alleges “unruly indoor tobacco smoking” despite DOCCS’ “‘zero-smoking policy... .’” (Compl.
4 9C.) Starting in June 2018, Plaintiff wrote and submitted complaints to the State Defendants
regarding the second-hand smoke exposure and a lack of ventilation that “felt like 80-95 degrees.”
(/d.)
g. Inadequate Medical Care at State Facility
Finally, Plaintiff alleges that he received inadequate medical treatment for his physical
therapy, respiratory conditions, neuropathy, and podiatry needs while in State Custody. He claims
his physical therapy sessions were inconsistent and that he suffered from the smoke in the facility.
(Compl. {IV.). Plaintiff claims that the State Defendants failed to provide him with his neuropathy
medication, gabapentin. (Report at 11-12.) Finally, Plaintiff alleges that he requested to see a
podiatrist for foot pains, in-grown toenails, corns, and calluses but was denied. (dd. at 41.)
Il. LEGAL STANDARDS
A. Reports and Recommendations.
A court “may accept, reject, or modify, in whole or in part, the findings or
recommendations” set forth in a magistrate judge's report. 28 U.S.C. § 636(b)(1)(C). A magistrate
judge’s report to which no objections are made is reviewed for clear error. See Edwards v. Fischer,
414 F. Supp. 2d 342, 346-47 (S.D.N.Y. 2006) (citations omitted). “In clear error review, a court
should reverse a finding only if it is ‘left with the definite and firm conviction that a mistake has
been committed,’ and not merely if it ‘would have decided the case differently.” Hernandez vy.
City of New York, No. 11 Civ. 6644 (KPF) (DF), 2015 WL 321830, at *2 (S.D.N.Y. Jan. 23, 2015)
(quoting Easley vy. Cromartie, 532 U.S. 234, 242 (2001).
B. Rule 12(b)(6) Failure to State a Claim.
“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 Be// Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plaintiff
must demonstrate “more than a sheer possibility that a defendant has acted unlawfully”; stating a
facially plausible claim requires the plaintiff to plead facts that enable the court “to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Jd. The factual
allegations pled must therefore “be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citation omitted). A district court must first review a plaintiff's
complaint to identify allegations that, “because they are no more than conclusions, are not entitled
to the assumption of truth.” /gbal, 556 U.S. at 679. The court then considers whether the plaintiff's
remaining well-pleaded factual allegations, assumed to be true, “plausibly give rise to an
entitlement to relief.” /d.; see also Targum v. Citrin Cooperman & Co., No. 12 Civ. 6909 (SAS),
2013 WL 6087400, at *3 (S.D.N.Y. Nov. 19, 2013). In deciding the 12(b)(6) motion, the court
must also draw all reasonable inferences in the non-moving party’s favor. See N.J. Carpenters
Health Fund vy. Royal Bank of Scot. Grp., PLC, 709 F.3d 109, 119-20 (2d Cir. 2013).
C. Pro Se Plaintiffs.
Submissions of pro se litigants are read liberally and interpreted to “raise the strongest
arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.
2006) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)). Courts must also “afford pro
se plaintiffs ‘special solicitude’ before granting motions to dismiss or motions for summary
judgment.” Quadir v. N.Y. State Dep't of Labor, 39 F. Supp. 3d 528, 536 (S.D.N.Y. 2014) (quoting
Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)).
Il. PLAINTIFF’S DELIBERATE INDIFFERANCE, MONELL LIABILITY, AND
STATE LAW CLAIMS AGAINST DEFENDANTS ARE DISMISSED WITHOUT
PREJUDICE
The Report construes Plaintiffs complaint as asserting (1) claims of deliberate indifference
to unconstitutional conditions of confinement and to serious medical needs against both the City
Defendants and State Defendants pursuant to 42 U.S.C. § 1983; (2) claims against the City
Defendants pursuant to Monell v. Dep’t of Soc. Services., 436 U.S. 658 (1978); and (3) state law
gross negligence claims against State Defendants Riley, Loughren, and Moran.
A. Plaintiff Cannot Prevail on His Claims of Deliberate Indifference to Unconstitutional
Conditions of Confinement and to Serious Medical Needs
As an initial matter, Magistrate Judge Cott correctly construed Plaintiffs § 1983 deliberate
indifference claims, arising while Plaintiff was a pretrial detainee, under the Due Process Clause
of the Fourteenth Amendment. Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017); Davis v.
McCready, 283 F. Supp. 3d 108, 116 (S.D.N.Y. 2017). Plaintiff's deliberate indifference claims
arising after his conviction were correctly construed under the Eighth Amendment. Darnell, 849
F.3d at 29.
Claims of deliberate indifference to conditions of confinement and deliberate indifference
to medical needs contain both an objective and subjective prong. /d. The subjective prongs of
both claims differ whether the claim is analyzed under the Eight or Fourteenth Amendment.
To establish an objective deprivation under both Amendments, “the inmate must show that
the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his
health, which includes the risk of serious damage to physical and mental soundness.” Jd. at 30
(citations and quotations omitted). Under the Fourteenth Amendment, a plaintiff must additionally
allege that “the defendant 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.” /d. at 35. Under the Eighth Amendment, a plaintiff must additionally
allege that the defendant “acted with more than mere negligence” and instead knew of and
disregarded an “excessive risk to inmate health and safety.” Walker v. Schult, 717 F.3d 119, 125
(2d Cir. 2013).
Under both the Eighth and Fourteenth Amendments, to succeed on a claim of deliberate
indifference to medical needs, a plaintiff must objectively allege that the deprivation of adequate
medical care was “sufficiently serious”. Davis, 283 F. Supp. 3d at 116. Further, if the inmate is
receiving ongoing treatment and the offending conduct is an unreasonable delay or interruption of
that treatment, “the seriousness inquiry focuses on the challenged delay or interruption in treatment
rather than the prisoner’s underlying medical condition alone.” /d.; Smith vy. Carpenter, 316 F.3d
178, 185 (2d Cir. 2003). The Court must consider the actual medical consequences that flow from
the alleged denial of care... .” Jd at 187. Under the Eight Amendment, a plaintiff must allege
that the prison officials were “subjectively reckless in their denial of medical care.” Spavone y.
New York State Dep’t of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013) (citation omitted). Under
the Fourteenth Amendment, a plaintiff must allege that an “objectively reasonable person in
[djefendant’s position would have known, or should have known, that [dJefendant’s actions or
omissions posed an excessive risk of harm” to the plaintiff. Davis, 283 F. Supp. 3d at 121.
a. Claims Against City Defendants
i. Deliberate Indifference to Conditions of Confinement—Exposure to
Asbestos
Magistrate Judge Cott correctly found that Plaintiff failed to state a deliberate indifference
claim based on exposure to asbestos. Exposure to asbestos can pose a sufficiently serious risk of
health to satisfy the objective prong of a deliberate indifference claim. Pratt v. City of New York,
929 F. Supp. 2d 314, 320 (S.D.N.Y. 2013) (citing LaBounty v. Coughlin, 137 F.3d 68, 72 (2d Cir.
1998)). However, the inmate must be exposed to an “unreasonably high concentration of air-borne
asbestos particles.” Johnakin v. N.Y.C. Dep't of Corr., No. 11-CV-4807 (SLT) (LB), 2013 WL
5519998, at *17 (E.D.N.Y. Sept. 30, 2013). Here, Plaintiff alleges that he had to occasionally
stand near asbestos-covered pipes while the facility’s alarm rang, but he did not include how
frequently this occurred or how often he had to place his hands on the walls near the pipes. (Report
at 24.) These facts are insufficient to support a conclusion that the alleged exposure was
“unreasonably” high. While Plaintiff submitted a grievance report, he similarly failed to allege
how City Defendants knew or should have known that there was asbestos exposure that posed an
“excessive risk” to Plaintiff's health or safety. (qd. at 24-25.) Thus, Plaintiffs deliberate
indifference claim based on exposure to asbestos is dismissed.
ii. Deliberate Indifference to Conditions of Confinement—Unsupportive
Mattress
Magistrate Judge Cott correctly held that Plaintiff failed to allege a deliberate indifference
claim based on an unsupportive mattress. A plaintiff's conditions-of-confinement claim based on
an unsupportive mattress may survive a motion to dismiss if “(1) the plaintiff had a medical
condition requiring a non-standard bed to protect against serious damage to his future health; (2)
he made his condition known to the prison officials; (3) he requested a non-standard bed to
accommodate the condition; and (4) his request was denied by an official who knew of and
disregarded an excessive risk to the plaintiffs health or safety.” Youmans v. Schriro, No. 12-CV-
3690 (PAE) (JCF), 2013 WL 6284422, at *5 (S.D.N.Y. Dec. 3, 2013). Here, Plaintiff did not
allege any pre-existing condition necessitating a special mattress. (Report at 27.) Further, even
if Plaintiff had plausibly alleged that his back pain was sufficiently serious to satisfy the objective
standard, he fails to allege how Defendants knew or should have known that the mattress posed a
substantial risk of harm. Plaintiff only sent a request for a new mattress to alleviate back pain.
at 28.) Thus, Plaintiff's deliberate indifference claim based on an unsupportive mattress is
dismissed.
iii. Deliberate Indifference to Medical Needs—Exposure to Tuberculosis
Magistrate Judge Cott correctly held that Plaintiff failed to allege sufficient facts to support
his deliberate indifference claim based on exposure to tuberculosis. (Report at 29.) “There can be
little doubt that [tuberculosis], 1f contracted by an inmate, would result in serious harm.” Jones v.
Goord, 435 F. Supp. 2d 221, 245 (S.D.N.Y. May 26, 2006). As Magistrate Judge Cott properly
held, Plaintiff did not allege that he was actually exposed to an inmate with tuberculosis, ever
contracted tuberculosis, experienced respiratory conditions related to or caused by the alleged
exposure to tuberculosis, was denied any medical treatment for tuberculosis, or received
inadequate treatment related to tuberculosis. (Report at 30.) He also failed to allege that City
Defendants were aware of a substantial risk to Plaintiff's health and disregarded that risk. (/d.)
Thus, Plaintiff's deliberate indifference claim based on exposure to tuberculosis is dismissed.
iv. Deliberate Indifference to Medical Needs-—Premature release from
HHC’s medical care
Magistrate Judge Cott correctly determined that Plaintiff failed to allege a deliberate
indifference to medical needs claim based on his release from HHC. (Report at 30.) At the time
of his release from HHC to State custody, Plaintiff was receiving treatment for a rotator cuff injury.
(Id.) The Report properly considered the “severity of the temporary deprivation” of medical care
when Plaintiff was released. Ayuso v. Bentivegna, No. 18-CV-3419 (NSR), 2021 WL 2535535, at
*3 (S.D.N.Y. June 21, 2021) (citing Smith, 316 F.3d at 186) (“[I]f the allegedly offending conduct
is delayed treatment, a court considers “the severity of the temporary deprivation alleged by the
prisoner.”). Plaintiff alleges that his facility transfer delayed his upcoming physical therapy
appointment and interrupted his ongoing treatment. (Report at 30.) He further alleges that he was
in “extreme pain” while being transferred. (/d. at 31.) Magistrate Judge Cott properly found that
Plaintiff failed to specifically attribute this pain to the delayed physical therapy appointment.
Snyder y. Alam, No. 15-CV-4033 (VB), 2016 WL 2642226, at *4 (S.D.N.Y. May 6, 2016).
Further, Plaintiff pled no facts to suggest that City Defendants had “subjective awareness of the
harmfulness” associated with Plaintiff's release from HHC. (Report at 31.) Thus, Plaintiffs
deliberate indifference claim based on his release from medical care at HHC should be dismissed.
b. Claims Against State Defendants
i. Deliberate Indifference to Conditions of Confinement—Inadequate
Ventilation
Magistrate Judge Cott correctly held that Plaintiff failed to state a deliberate indifference
claim based on inadequate ventilation. (Report at 33-34.) Inadequate ventilation that results in
extreme temperatures or produces unsanitary conditions rises to the level of a constitutional
violation if it constitutes an “objectively, sufficiently serious . . . denial of the minimal civilized
measure of life’s necessities.” Willey v. Kirkpatrick, 801 F.3d 51, 66 (2d Cir. 2015). Here, as
Magistrate Judge Cott found, Plaintiff did not allege any facts regarding the duration or severity
of the conditions while in State custody. /d. Plaintiff only alleges that the lack of ventilation “felt
like 80-95 degrees.” (Compl. at § 9.) Further, Plaintiff did not allege any facts to suggest the State
Defendants knew of and disregarded an “excessive risk” to Plaintiff's health or acted above the
level of “mere negligence”. Walker, 717 F.3d at 125. Thus, Plaintiff's deliberate indifference
claim based on inadequate ventilation is dismissed.
10
il. Deliberate Indifference to Conditions of Confinement-—Exposure to
Secondhand Smoke
Magistrate Judge Cott correctly held that Plaintiff failed to state a deliberate indifference
claim based on exposure to secondhand smoke. (Report 34-37.) Exposure to unsafe levels of toxic
substances, such as tobacco smoke, can suffice as a sufficiently dangerous condition to satisfy the
objective prong of an Eight Amendment claim. Wright v. New York State Dep't of Corr. Servs.,
No. 06-CV-3400 (RJS) (THK), 2008 WL 5055660, at *10 (S.D.N.Y. Oct. 10, 2008). The Plaintiff
must demonstrate that he was exposed to “unreasonably high levels” of the second-hand smoke.
Jones v. Goord, 435 F. Supp. 2d 221, 245 (S.D.N.Y. May 26, 2006). Here, Plaintiff alleges that
smoking occurred —“smoking indoors was as prevalent then (July 9, 2018) as it was in the early
90’s....” and “indoor smoking is occurring despite DOCCS’ so-called ‘zero-smoking policy’ . .
..~— but he provided no facts as to the severity or duration of the tobacco smoke exposure.
(Report at 35.) Plaintiff similarly failed to allege any facts that suggest that the State Defendants
knew of and disregarded an “excessive risk” to Plaintiff's health. Walker, 717 F.3d at 125.
Plaintiff alleges that, while at the State facility Downstate, he filed a written complaint, but no
remedial steps were taken. (Report at 35-36.) While at the State facility Sing Sing, Plaintiff alleges
that he requested a windowed cell—as opposed to a cell with bars. (Ud. at 36.) His request was
initially denied, but Plaintiff was ultimately moved to a windowed cell. (/d.) Magistrate Judge
Cott correctly found these facts insufficient to plausibly allege the subjective prong of Plaintiff's
claim. (/d.) Thus, Plaintiffs deliberate indifference claim based on exposure to second-hand
smoke is dismissed.
11
il. Deliberate Indifference to Medical Needs—Lower level of treatment then
at HCC for physical therapy, respiratory conditions, podiatry, and
neuropathy
Magistrate Judge Cott correctly held that Plaintiff failed to allege a deliberate indifference
to medical needs claim based on the treatment Plaintiff received in State custody. (Report 37-42.)
Plaintiff alleges that he received inferior treatment for his physical therapy, respiratory conditions,
neuropathy, and podiatry needs. (/d. at 37.) Since Plaintiff admitted to receiving medical
treatment for the physical therapy, respiratory conditions, and neuropathy, Magistrate Judge Cott
properly analyzed whether the alleged inadequate treatments were sufficiently serious. (/d. at 38);
see, e.g., Ayuso, 2021 WL 2535535, at *3 (“When the offending conduct is failure to treat, a court
examines ‘the severity of the prisoner's underlying medical condition;’ however, if the allegedly
offending conduct is delayed treatment, a court considers “the severity of the temporary
deprivation alleged by the prisoner.” (quoting Smith y. Carpenter, 316 F.3d 178, 186 (2d Cir.
2003)). For the podiatry needs, Magistrate Judge Cott properly analyzed whether the underlying
conditions (foot pains, in-grown toe nails, corns, and calluses) were sufficiently serious. Ayuso,
2021 WL 2535535, at *3.
First, Magistrate Judge Cott properly concluded that Plaintiff's allegation—that he
received “on/off” physical therapy—did not plausibly allege that his treatment was inadequate or
that it caused or likely would cause harm. Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir.
2006). Second, the Report construed Plaintiff's respiratory conditions allegation as arising out of
his exposure to second-hand smoke and the State Defendants’ failure to provide a smoke-free
environment. (Report at 38-39.) As discussed above, Plaintiff did not plead enough facts as to the
frequency, intensity, duration, or circumstances in which he was exposed to second-hand smoke.
Compare Davis v. New York, 316 F.3d 95, 100-01 (2d Cir. 2002) (court reversed summary
12
judgment in favor of prison officials where plaintiff produced evidence that he had been double
bunked with smoker, housed for six years in areas where majority of inmates were smokers, and
was then surrounded by seven inmates who were chain smokers or heavy smokers) with Gill v.
Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (affirming district court’s dismissal under Rule
12(b)(6) because three brief encounters with ETS “alleged only de minimis injury, and, hence, did
not amount to an Eighth Amendment violation”). Third, Plaintiff alleges that State Defendants
prescribed him a different neuropathy medication than he had received at HHC. (Report at 39.)
The Report properly concluded that Plaintiff failed to allege whether he continued to experience
neuropathy symptoms after taking the different medication and did not allege that he informed
State Defendants of any continuing or worsening condition. (/d. at 40.) As Magistrate Judge Cott
noted, Plaintiff's claim amounts to “a disagreement with or preference for a specific treatment
rather than a constitutional violation.” Ayuso, 2021 WL 2535535, at *4. Fourth, Plaintiff's
podiatry needs (foot pain, in-grown toenails, corns, and calluses) do not constitute a sufficiently
serious medical need that poses an “unreasonable risk of serious damage” to Plaintiff's health.
Walker, 717 F.3d at 125. Finally, Plaintiff failed to allege that State Defendants were “subjectively
reckless” and knew of and disregarded a substantial risk of serious harm for any of his allegations
of inferior treatment in State custody. (Report at 40.) Thus, Plaintiff's deliberate indifference
claim based on alleged inferior medical treatment in state custody should be dismissed.
B. Monell Liability
Magistrate Judge Cott properly found that Plaintiff's allegations did not establish Monell
liability against the City Defendants. (Report at 42-45.) A municipality or municipal corporation
is liable under § 1983 if “the governmental body itself subjects a person to a deprivation of rights
or causes a person to be subjected to such deprivation.” Connick v. Thompson, 563 U.S. 51, 60
13
(2011) (internal quotation marks omitted). Since Plaintiff failed to allege an underlying claim of
a constitutional violation, the Report properly concluded that Plaintiff's Monell claim is meritless.
(Report at 44.) Further, “when a plaintiff lacks any underlying claim of deprivation of a
constitutional right, the claim of municipal liability on the part of the municipal defendant must be
dismissed as well.” Lerner v. Hempstead Public Schools, 55 F. Supp. 3d 267, 283 n.14 (E.D.N.Y.
2014) (citing Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006). Thus, Plaintiff's Monell
claim is dismissed.
C. Personal Liability
Magistrate Judge Cott properly found that Plaintiff's allegations did not substantiate any
claims against the individual State Defendants for personal liability? (Report at 45-51.) To
establish personal involvement, a plaintiff must plead that “each Government-official defendant,
through the officer’s own individual actions, has violated the Constitution.” (Ud. at 45.) As
Plaintiff did not adequately plead an underlying constitutional violation, the Report properly
concluded that Plaintiff failed to adequately plead personal involvement of the State Defendants.
at 46.) Thus, Plaintiff's personal involvement claims against the State Defendants are
dismissed.
D. Qualified Immunity
The Court agrees with Magistrate Judge Cott’s recommendation that since all of Plaintiff's
claims are being dismissed, there is no need to address the qualified immunity arguments set forth
by the State Defendants and City Defendants. (Report at 51.)
3 The Report did not analyze the City Defendants’ personal involvement because the City Defendants did
not argue that Plaintiff failed to plausible allege personal involvement.
14
E. State Claims
Magistrate Judge Cott properly held that Plaintiffis precluded from raising state law claims
in federal court pursuant to N.Y. Corr. Law §24 and that this Court should decline to exercise
supplemental jurisdiction over any state law claims. (Report at 51-53.) The Report construed
Plaintiff's complaint to assert a state law claim of gross negligence against Defendants Riley,
Loughren, and Moran for failing to properly train the SCOC’s Records Access Officer and to
properly “supervise” subordinates who deprived Plaintiff of his constitutional rights. (/d. at 51.)
Magistrate Judge Cott correctly held that “N.Y. Corr Law § 24 precludes a plaintiff from raising
state law claims in federal court against state employees in their personal capacities for actions
arising within the scope of their employment.” Davis v. McCready, 283 F. Supp. 3d 108, 123
(S.D.N.Y. 2017). Further, because Plaintiff failed to state a § 1983 claim, the Court declines
supplemental jurisdiction over any state law claims that may be alleged. See, e.g., Matican v. City
of New York, 524 F.3d 151, 154-55 (2d Cir. 2008). Thus, any state law claims are dismissed.
IV. PLAINTIFF’S DELIBERATE INDIFFERENCE CLAIM BASED ON
INADEQUATE FOOTWEAR AGAINST CITY DEFENDANTS IS DISMISSED
Magistrate Judge Cott correctly held that Plaintiff failed to state a deliberate indifference
claim based on inadequate footwear while in City custody. (Report at 25.) Courts in this Circuit
have consistently determined that “pinched nerves, sores, calluses, bleeding heels, and back and
leg problems” resulting from being forced to wear institutional footwear do not “offend
contemporary standards of decency. ...” Simmons v. Cripps, No. 12-CV-1061 (PAC) (DF), 2013
WL 1290268, at *16 (S.D.N.Y. Feb. 15, 2013). Plaintiff alleges “numbness,” a “tingling
sensation,” and a “pins and needles feeling.” (Compl. § 3C.) As Magistrate Judge Cott stated,
Plaintiffs injuries are no worse than the injuries other courts have considered to be inoffensive to
15
contemporary standards of decency. (Report at 26.) Plaintiff's grievance report did not mention
any impact the footwear had on his neuropathy—only that his feet were cold. (/d.) Thus, Plaintiff
also failed to allege sufficient facts to establish that any of the City Defendants knew or should
have known of an excessive risk to Plaintiffs health. (/d.) As the Report concluded, this allegation
is inherently defective and cannot be cured by amendment. (/d. at 53.); see Simmons, 2013 WL
1290268 at *16 (“[P]inched nerves, sores, calluses, bleeding heels, and back and leg problems”
resulting from being forced to wear institutional footwear do not “offend contemporary standards
of decency ....”). Thus, this Court dismisses this claim.
Vv. CONCLUSION
Magistrate Judge Cott's Report is ADOPTED. Defendants’ motions to dismiss Plaintiff's
complaint, (ECF Nos. 45 and 51), are GRANTED. The Clerk of Court is directed to close these
motions accordingly.
Dated: New York, New York
September 14, 2021
SQOORDERED.
“60. &. Donxy
THEO B. DANIELS
ited-States District Judge
16