Cite as: Norman Howard v. City of New York, 12 Civ. 4069, NYLJ 1202582629966, at *1 (SDNY, Decided December 20, 2012)

District Judge Paul Engelmayer

Decided: December 20, 2012


Patrick S. Watson, Plaintiff; Blake Wingate, Plaintiff; Darren Staton, Plaintiff; Navarro Johnson, Plaintiff; Christian T. Martinez, Plaintiff; Islime Duvivier, Plaintiff; Francisco Ferreira, Plaintiff; Joseph Opperisano, Plaintiff; Winston Cowell, Plaintiff; Roger Smith, Plaintiff; John England, Plaintiff; Calvin Ellis, Plaintiff; Darren Mack, Plaintiff; Alex Wilson, Plaintiff; Moses Suarez, Plaintiff; Onett D. Brown, Plaintiff; Hiram Feliciano, Plaintiff; Glenn Campbell, Plaintiff; Francisco Amador, Plaintiff; Shashkov Konstantin, Plaintiff; William Vielman, Plaintiff; Ralphie E. Hayes, Plaintiff; Andre Livingston Williams, Plaintiff; Frederick Robertson, Plaintiff; Wayne Sullivan, Plaintiff; Raymond L. Edwards, Plaintiff; Demetrius Loving, Plaintiff; Mike Holmes, Plaintiff; Robert Fleming, Plaintiff; David Soto, Plaintiff; Willie Vega, Plaintiff; Troy Valentine, Plaintiff; Ittiah Mogai, Plaintiff; Arthur Stewart, Plaintiff; Robert Dragoti, Plaintiff; Ernest Langston, Plaintiff; Anthony White, Plaintiff; Angel Espada, Plaintiff; Robert Johnson, Plaintiff; Reginald Milton, Plaintiff; Richard Martinez, Jr., Plaintiff; Richard Webb, Plaintiff; Kendall Hayes, Plaintiff; Michael Straker, Plaintiff; Nestor Sanchez, Plaintiff; Damilola Animashaun, Plaintiff; Arthur Jack, Plaintiff; Willie Bowman, Plaintiff; Frank Trifilio, Plaintiff; Jason Williams, Plaintiff; Branan Boston, Plaintiff; Jose Vasquez, Plaintiff; Raheem Watson, Plaintiff; Jamal Armstead, Plaintiff; Howard Powell, Plaintiff; George Etienne, Plaintiff; Raymond Maxwell, Plaintiff; Alan Perez, Plaintiff; Rasheen Everett, Plaintiff; Anthony Cruz, Plaintiff; Anthony Pinder, Plaintiff; Benny Davis, Plaintiff; 12 Civ. 4080 12 Civ. 4169; 12 Civ. 4170; 12 Civ. 4266; 12 Civ. 4274; 12 Civ. 4275; 12 Civ. 4299; 12 Civ. 4302; 12 Civ. 4306; 12 Civ. 4307; 12 Civ. 4346; 12 Civ. 4347; 12 Civ. 4382; 12 Civ. 4383; 12 Civ. 4393; 12 Civ. 4394; 12 Civ. 4396; 12 Civ. 4457; 12 Civ. 4517; 12 Civ. 4523; 12 Civ. 4524; 12 Civ. 4532; 12 Civ. 4533; 12 Civ. 4630; 12 Civ. 4634; 12 Civ. 4638; 12 Civ. 4670; 12 Civ. 4671; 12 Civ. 4694; 12 Civ. 4698; 12 Civ. 4699; 12 Civ. 4700; 12 Civ. 4803; 12 Civ. 4813; 12 Civ. 4896; 12 Civ. 4961; 12 Civ. 5127; 12 Civ. 5128; 12 Civ. 5129; 12 Civ. 5131; 12 Civ. 5132; 12 Civ. 5133; 12 Civ. 5134; 12 Civ. 5155; 12 Civ. 5253; 12 Civ. 5402; 12 Civ. 5404; 12 Civ. 5416; 12 Civ. 5517; 12 Civ. 5520; 12 Civ. 5668; 12 Civ. 5681; 12 Civ. 5687; 12 Civ. 5691; 12 Civ. 5695; 12 Civ. 5760; 12 Civ. 5768; 12 Civ. 5856; 12 Civ. 5867; 12 Civ. 5868; 12 Civ. 5870; 12 Civ. 5872





All of the 63 pro se plaintiffs identified above bring




similar suits pursuant to 42 U.S.C. §1983 against the City of New York, Mayor Michael Bloomberg, Correction Commissioner Dora B. Schriro (the "Commissioner"), and Dr. Jean Richards, a manager at Corizon, a correctional healthcare services provider.1 The plaintiffs, who are or were inmates or detainees in the custody of New York City Department of Correction at the Anna M. Kross Center on Rikers Island ("AMKC"),2 claim that their Eighth Amendment right to be free from cruel and unusual punishment was violated by the defendants' failure to provide proper beds, which allegedly caused the plaintiffs lower back, neck, and leg pain as well as emotional distress.3 The plaintiffs seek compensatory and punitive damages. The defendants have moved to dismiss the complaint in each action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,


arguing that (1) the plaintiffs fail to state a constitutional claim; and (2) they fail to allege facts that would support municipal liability or the personal involvement of any individual defendant. After the defendants submitted the motion to dismiss, one plaintiff submitted opposition papers, while several others filed amended complaints, none of which makes significant modifications to the allegations of the original complaint. For the reasons set forth below, I recommend that the motion be granted and all 63 suits be dismissed with leave to file amended complaints.


The plaintiffs' complaints are part of a group of approximately 90 civil actions concerning beds at AMKC. The 63 complaints here were consolidated for the purposes of a single motion to dismiss.4 (Order dated Aug. 10, 2012 ("August 10 Order") at 4-5 in 12 Civ. 4069;5 e.g., Memorandum Endorsement dated Aug.




24, 2012 in 12 Civ. 5402). Of the 63 cases, more than 50 make use of the same typewritten, photocopied complaint,6 with the only differences among them being personal information such as the plaintiffs' names and identification numbers, which are written in by hand. Several others are handwritten complaints with virtually identical wording.7 Three complaints, filed by plaintiffs Raheem Watson, Andre Livingston Williams, and Michael Straker, make similar allegations, but provide more detail. (Complaint of Raheem Watson dated May 26, 2012 ("Watson Compl."); Amended Complaint of Andre Livingston Williams dated July 3, 2012 ("Williams Compl."); Second Amended Complaint of Michael Straker dated Aug. 18, 2012 ("Straker Compl.")).

In accordance with the standard for assessing a motion to dismiss, the allegations in the plaintiffs' complaints are taken as true.

In or around 2010, New York City began using new, cheaper beds at Department of Correction facilities. (Compl., ¶II.D). According to the vast majority of the complaints, the new beds are "incomplete" and, as was the case with the beds previously used, do not accommodate inmates who are taller than 5 feet, 11 inches. (Compl., ¶II.D). The failure to issue bed frames and mattresses to inmates on an individual basis has allegedly exacerbated




unspecified prior injuries8 suffered by the plaintiffs, and caused them "extreme lower back pain and leg soreness."9 (Compl., ¶¶II.D, III). Most of the plaintiffs also contend that because they were not given pillows, they suffer from neck pain.10 (Compl., ¶II.D). Additionally, the plaintiffs have allegedly suffered "extreme emotional distress as [they] cannot make a bed or mattress and everytime [sic] [they are] able to get an extra blanket to stuff with a sheet to build a mattress it is taken on the search." (Compl., ¶III).

The plaintiffs state that Mayor Bloomberg, the Commissioner, and the Corporation Counsel11 "are all responsible to access [sic]




a viable budgetary system in NEW YORK CITY to assure compliance with the State Correctional; health and hospital and chiropractic regulations for bedding et. al in the…Correctional System." (Compl., ¶II.D). In addition, the plaintiffs state that Dr. Richards has "failed to declare an emergency and have the health department mandate emergency measures." (Compl., ¶II.D). The plaintiffs also allege that the City "chose to overlook health and or other legal ramifications" to inmates. (Compl., ¶II.D).

Mr. Watson, who asserts he suffers from scoliosis,12 alleges that Dr. Richards, as the "medical reviewer who gives and denies clearance to medical needs" at AMKC, should have "alerted the Medical Supervisory prison Official" and seen to it that Mr. Watson received a replacement mattress. (Notice of Motion in Opposition of Defendant's Motion to Dismiss of Raheem Watson ("Watson Opp.") at 1-3).

Mr. Watson and Mr. Williams both state that the mattresses are placed on a "metal foundation" despite the mattress manufacturer's warning that the they should be used without a foundation. (Watson




Compl., ¶II.D; Williams Compl., ¶II.D).13 Mr. Williams states that "the mattress was not made to be used with a foundation," and that the defendants knew that placing the mattress on a metal frame would cause harm. (Williams Compl., ¶II.D).


A. Standard of Review for a Motion to Dismiss

In considering a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 110-11 (2d Cir. 2010). A complaint need not make "'detailed factual allegations,'" but it must contain more than mere "'labels and conclusions'" or "formulaic recitation[s] of the elements of a cause of action.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (alteration in original) (quoting Twombly, 550 U.S. at 555). Further, courts "accept[] as true only factual allegations, and [do] not accept as true allegations stating only legal conclusions." Braxton v. Nichols, No. 08 Civ. 08568, 2010 WL 1010001, at *1 (S.D.N.Y. March




18, 2010) (quoting Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) ("[T]hreadbare recitals of a cause of action, supported by mere conclusory statements, do not suffice [to establish entitlement to relief].")).

Where the complaint's factual allegations permit the court to infer only that it is possible, but not plausible, that misconduct occurred, the complaint fails to meet the minimum standard. Iqbal, 556 U.S. at 678. In ruling on a motion to dismiss, the court's task "'is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" GVA Market Neutral Master Ltd. v. Veras Capital Partners Offshore Fund, Ltd., 580 F. Supp. 2d 321, 327 (S.D.N.Y. 2008) (quoting Eternity Global Master Fund Ltd. v. Morgan Guaranty Trust Co. of New York, 375 F.3d 168, 176 (2d Cir. 2004)).

Pro se complaints are held to less stringent standards than those drafted by lawyers. Erickson, 551 U.S. at 94; see also McKewon v. New York State Commission on Judicial Conduct, 377 F. App'x 121, 122 (2d Cir. 2010). In fact, pleadings of a pro se party should be read "'to raise the strongest arguments that they suggest.'" Kevilly v. New York, 410 F. App'x 371, 374 (2d Cir. 2010) (quoting Brownell v. Krom,446 F.3d 305, 310 (2d Cir. 2006)). Even after Iqbal, which imposed heightened pleading standards for all complaints, pro se complaints are to be liberally construed. See Mills, 572 F.3d at 71-72. Dismissal of a pro se complaint is nevertheless appropriate where a plaintiff has clearly failed to meet minimum pleading requirements. See, e.g., Paul v. Bailey, No.




09 Civ. 5784, 2010 WL 3292673, at *4 (S.D.N.Y. July 21, 2010) (citing Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997)).

Finally, even when a plaintiffs does not oppose a Rule 12(b)(6) motion, the court must still determine, as a matter of law, whether the complaint sufficiently states a claim on which relief may be granted. McCall v. Pataki, 232 F.3d 321, 322-23 (2d Cir. 2000); Haas v. Commerce Bank, 497 F. Supp. 2d 563, 564 (S.D.N.Y. 2007). If the pleading is adequate, "the plaintiff's failure to respond to a Rule 12(b)(6) motion does not warrant dismissal." McCall, 232 F.3d at 323.

B. Plaintiffs' Claims

To state a claim under 42 U.S.C. §1983, the plaintiffs must show that, "(1) the challenged conduct was attributable at least in part to a person who was acting under color of state law, and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States." Snider v. Dylag, 188 F.3d 51, 53 (2d. Cir. 1999); see also Thomas v. City of New York, No. 11 Civ. 0578, 2012 WL 4889257, at *2 (S.D.N.Y. Oct. 16, 2012). The plaintiffs allege that they suffer severe physical pain, emotional distress, and exacerbation of prior injuries because the defendants' began providing new, "incomplete" beds to inmates at AMKC and failed to issue beds on an individual basis. (Compl., ¶¶II.D, III). Construed liberally, the plaintiffs claim that the defendants' failure to provide them with larger beds has resulted in an unconstitutional condition of confinement and constitutes deliberate indifference to their serious medical needs.




1. Conditions of Confinement

The plaintiffs' complaints, read liberally, do not allege an Eighth Amendment claim with regard to the conditions of their confinement. In order to state a valid conditions-of-confinement claim, the plaintiffs must satisfy a two-part test: (1) objectively, the deprivation they suffered was "sufficiently serious" as to deny them "the minimal civilized measure of life's necessities," and (2) subjectively, the defendants acted with "deliberate indifference," Wilson v. Seiter, 501 U.S. 294, 298, 303 (1991), in that they "kn[ew] of and disregard[ed] an excessive risk to inmate health or safety," Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994) (quotation omitted).

To meet the objective element of an Eighth Amendment claim, "a prisoner must prove that the conditions of his confinement violate contemporary standards of decency." Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002). The plaintiffs fail to meet this standard. The Eighth Amendment does not require "comfortable prisons." See Rhodes v. Chapman, 452 U.S. 337, 349 (1981). Rather, it forbids depriving prisoners of their "'basic human needs — e.g., food, clothing, shelter, medical care, and reasonable safety,'" or exposing them to "conditions that 'pose an unreasonable risk of serious damage to [their] future health.'" Phelps, 308 F.3d at 185 (alteration in original) (quoting Helling v. McKinney, 509 U.S. 25, 32, 35 (1993)). Thus, "only extreme deprivations are sufficient to sustain a 'conditions-of-confinement' claim." Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir.




1999) (citing Hudson v. McMillan, 503 U.S. 1, 9 (1992)).

Here, the plaintiffs' claims are wholly conclusory. They merely state that the failure to issue pillows and "proper[ly] size[d]" beds to inmates on an individualized basis caused "pain in lower back and neck and legs," "emotional distress," and "[e]xacerbation of prior injuries." (Compl., ¶¶II.D, III). But they fail to provide the factual detail necessary to allege plausibly that they suffered the injuries as a result of the beds at AMKC. For example, although the thrust of these actions seems to be that the beds provided at AMKC are uncomfortably short for inmates taller than five feet eleven inches, these form complaints do not allege any plaintiff's height. Nor are there sufficient factual allegations about how the beds and lack of pillows cause the claimed injuries. "[A] civil rights complaint must contain specific allegations of fact which indicate a deprivation of constitutional rights; allegations which are nothing more than broad, simple and conclusory statements are insufficient to state a claim under §1983." Williams v. City of New York, No. 03 Civ. 5342, 2005 WL 2862007, at *3 (S.D.N.Y. Nov. 1, 2005) (internal quotation marks omitted); see also Claudio v. Sawyer, 675 F. Supp. 2d 403, 407 (S.D.N.Y. 2009). The plaintiffs' "naked assertions" that they suffered "extreme pain" as a result of inadequate beds, without more, does not meet the standard for pleadings in a §1983 action. See Iqbal, 556 U.S. at 678.

Moreover, the conclusory allegations in these complaints describe conditions no more serious than those that courts have




regularly found insufficient to satisfy the objective prong of the Eighth Amendment. "Simply stated, the Eighth Amendment does not mandate 'comfortable' [] beds." Smith v. Woods, No. 9:03-CV-480, 2006 WL 1133247, at *13 (N.D.N.Y. April 24, 2006) (footnote omitted) (noting that even if plaintiff were claiming that allegedly defective bed exacerbated spondylolisthesis, he failed to establish "sufficiently serious" deprivation for purposes of the Eighth Amendment); see also Faunce v. Gomez, 163 F.3d 605 (table), 1998 WL 658646, at *1 (9th Cir. Sept. 17, 1998) (uncomfortable mattresses with insufficient bedding not deprivation of basic human needs as required to state a constitutional claim); Walker v. Schultz, No. 9:11-CV-287, 2012 WL 1037441, at *6 (N.D.N.Y. Jan. 20, 2012) (uncomfortable, short beds did not constitute unconstitutional condition of confinement; Growins v. Greener, No. 01 Civ. 6933, 2003 WL 943239, at *3 (S.D.N.Y. March 10, 2003) (short bed not basis for constitutional claim even assuming paraplegic prisoner's heel injuries were caused by contact with metal bed frame). Therefore, even liberally construed, the complaints fail to raise a plausible claim of a constitutional violation. See Iqbal, 556 U.S. at 678.

The plaintiffs cite a single case, Delaney v. Selsky, 899 F. Supp. 923 (N.D.N.Y. 1995), stating that it stands for the proposition that "improper bedding is cause for significant and atypical hardship." (Compl., ¶II.D). It does not. In Delaney, the court declined to grant a motion for summary judgment in favor of the defendants where an inmate who was almost seven feet tall




claimed that he had been deprived of his due process rights when, without the benefit of a hearing, he was subjected to disciplinary confinement for 197 days in a special cell with a short bed that forced him to "stand or lay in an uncomfortable and compromising position" most of the time. Delaney, 899 F. Supp. at 927-28. That is, Delaney found that there was a issue of fact as to whether these conditions caused the inmate "'atypical and significant hardship…in relation to the ordinary incidents of prison life,'" id. at 926 (quoting Sandin v. Connor, 515 U.S. 472, 484 (1995)), thus entitling him to certain procedural protections, such as notice and a hearing, before it was imposed. Id. at 928. It does not, therefore, hold that the bedding constituted such a hardship, but merely left open the possibility that it might.

In any case, and more importantly, Delaney's ruling on that procedural due process question is largely irrelevant to the question presented here, because the Eighth Amendment imposes a different standard. It requires only that prison officials provide "humane conditions of confinement" including "adequate food, clothing, shelter, and medical care." Farmer v. Brennan, 511 U.S. 825, 832 (1994). To be actionable, the deprivation alleged must result in a denial of "the minimal civilized measure of life's necessities." Wilson, 501 U.S. at 298 (internal quotation marks omitted). That is, whether or not a short bed can constitute an "atypical and significant hardship" does not inform the question of whether or not it constitutes cruel and unusual punishment. Indeed, the Delaney Court granted the defendants' motion for




summary judgment on Mr. Delaney's Eighth Amendment claim, stating, "[T]he Eighth Amendment protection applies only to those situations where one has suffered a loss of necessities such as food or medical care." (Memorandum, Decision & Order, Delaney v. Selsky, No. 92-CV-320 (N.D.N.Y. June 20, 1995), at 4). Thus, Delaney actually undermines the plaintiffs' position here.

In addition, even if the complaints had pled a sufficiently serious deprivation in conditions of confinement, they fail to meet the subjective prong of a §1983 claim. A defendant cannot be said to have been deliberately indifferent unless he "act[ed] with a sufficiently culpable state of mind." Salahuddin v. Good, 467 F.3d 263, 280 (2d Cir. 2006) (citing Wilson, 501 U.S. at 300). While the Eighth Amendment does not require "conduct undertaken for the very purpose of causing harm," Hathaway, 37 F.3d at 66, defendants "must both be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and [they] must also draw the inference," Farmer, 511 U.S. at 837.

Here, most of the plaintiffs do not allege any facts indicating that any defendant "kn[ew] of and disregard[ed] an excessive risk to inmate health or safety." Id. at 837. These plaintiffs state only that Mayor Bloomberg and the Commissioner were "responsible to access [sic] a viable budgetary system" and "assure compliance with the State Correctional; health and hospital and chiropractic regulations for bedding et. al in the…correctional system" and that Dr. Richards "failed to declare an emergency and have the health department mandate emergency




measures." (Compl., ¶II.D). Notably, the plaintiffs do not assert that the defendants had been "exposed to the information concerning the risk and thus must have known about it." Farmer, 511 U.S. at 842 (internal quotation marks omitted). Without such knowledge, they could not have possibly drawn the inference of substantial risk of harm.

Mr. Watson and Mr. Williams do state that the defendants placed the mattresses on a "metal foundation," despite tags attached to the mattresses that read "[t]his mattress is intended to be used without a foundation." (Watson Compl., ¶II.D; Williams Compl., ¶II.D; Mattress Tags, attached as Exh. B to Watson Opp.). Mr. Watson and Mr. Williams allege that Mayor Bloomberg and the Commissioner knew that placing the mattress on a metal frame would cause harm. (Watson Compl., ¶II.D; Williams Compl., ¶II.D). Mr. Watson states that the warning was likely made for "suitability and longevity of the product" as well as for a "chiropractic reason" and that the defendants had exhibited "obvious lack of concern, care, and decency." (Watson Opp. at 1-2). There is no allegation, however, that the defendants ever saw these tags. Moreover, those same tags also state that the mattresses "meet[] the requirements of 16 CFR 1633 (federal inflammability (open flame) standard for mattress sets) when used without a foundation," indicating that the warning relates to fire safety. (Mattress Tags, attached as Exh. B to Watson Opp.). Indeed, there is no reason to believe that the instructions relate to chiropractic health. Accordingly, the




plaintiffs fail to state a constitutional claim based on conditions of confinement.

2. Medical Need

Even read liberally, the plaintiffs' complaints also fail to state a constitutional claim with regard to their medical needs. Such a claim has objective and subjective prongs similar to those required in the conditions claim discussed above. Thus, a plaintiff must allege that he was subjected to objectively sufficiently serious harmful conditions. Wilson, 501 U.S. at 297-98, 303. To satisfy this prong, a court must determine, first, if "the prisoner was actually deprived of adequate medical care" and, second, "whether the inadequacy in medical care is "sufficiently serious." Salahuddin, 467 F.3d at 279-80. To meet the subjective element, there must be a showing that the official acted with deliberate indifference, in other words, that "the official 'kn[ew] of and disregard[ed] an excessive risk to inmate health or safety.'" Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (quoting Hathaway, 99 F.3d at 553).

No plaintiff has adequately alleged that the failure to provide him a larger bed is a sufficiently serious medical harm. "This standard contemplates a [showing by the prisoner that his medical need was] a condition of urgency, one that may produce death, degeneration, or extreme pain." Lucas v. McCoy, No. 10 Civ. 9611, 2011 WL 6005164, at *2 (S.D.N.Y. Nov. 30, 2011) (alteration in original) (internal quotation marks omitted). The plaintiffs — even those who have claimed exacerbation of extant conditions —




have failed to allege with any particularity that the failure to provide longer beds poses an excessive risk to their health.

Even if they had alleged such a condition of urgency, the plaintiffs do not allege that any of the defendants were made aware of the purported injuries suffered. Two plaintiffs, Mr. Watson and Mr. Williams, do assert that Dr. Richard was "aware through complaints of facts from which inference of substantial risk of serious harm could be drawn…defendant drew that inference + lack of correction indicated that they [sic] subjectively intended that harm to occur." (Watson Compl., ¶II.D; Williams Compl., ¶II.D). However, Mr. Watson and Mr. Williams state no details about the nature or timing of the complaints or to whom they were made. Their assertions are therefore entirely conclusory. See Adekoya v. Holder, 751 F. Supp. 2d 688, 697 (S.D.N.Y. 2010) (plaintiff did not satisfy subjective prong where his complaint states in conclusory terms that defendants were aware of his medical needs and failed to provide adequate care).

3. Personal Involvement

To successfully state a claim against an individual defendant, a "plaintiff must allege sufficient facts to demonstrate that defendant[] w[as] personally or directly involved in the violation, that is, that there was 'personal participation by one who ha[d] knowledge of the facts that rendered the conduct illegal.'" Harris v. Westchester County Department of Corrections, No. 06 Civ. 2011, 2008 WL 953616, at *9 (S.D.N.Y. April 3, 2008) (third alteration in original) (quoting Provost v. City of Newburgh, 262 F.3d 146, 155




(2d Cir. 2011)). Personal involvement in a §1983 violation may be shown by evidence that: (1) the official participated directly in the violation; (2) the official, after learning of the violation, failed to remedy the wrong; (3) the official created a policy or custom under which unconstitutional practices occurred; (4) the official was grossly negligent in supervising subordinates who caused the unlawful condition or event; or (5) the official exhibited deliberate indifference by failing to act on information indicating that unconstitutional acts were occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Washington v. Kelly, No. 03 Civ. 4638, 2004 WL 830084, at *3 (S.D.N.Y. April 13, 2004).

With regard to Mayor Bloomberg and the Commissioner, the complaints here merely state that they have failed to "access [sic] a viable budgetary system…to assure compliance with" state regulations. (Compl., ¶II.D). Most of the plaintiffs state that Dr. Richards "failed to declare an emergency and have the health department mandate emergency measures." (Compl. ¶II.D). These statements are made without any "further factual enhancement." Iqbal, 556 U.S. at 678 (internal quotation marks omitted). As such, they fail to support a plausible inference that the individual defendants were personally involved in the alleged violations.14 See Harris, 2008 WL 953616, at *9.




Mr. Watson and Mr. Williams state that Dr. Richards was aware, through complaints, that the plaintiffs should have been issued replacement mattresses. (Watson Compl., ¶II.D; Williams Compl., ¶II.D). Even if this were sufficient to show personal involvement, however, the plaintiffs fail to allege a constitutional violation for the reasons discussed above. Therefore, Dr. Richards' involvement in the conduct alleged in the complaints does not support liability. To survive a motion to dismiss, the complaints must present facts showing that each individual defendant had knowledge of conduct that constituted a constitutional violation and was personally involved in that conduct.

3. Municipal Liability

The plaintiffs also fail to state a claim against the City of New York. For a valid claim of municipal liability, "a plaintiff must make factual allegations that support a plausible inference that the constitutional violation took place pursuant to [a municipal policy or custom]." Missel v. County of Monroe, 351 F. App'x 543, 545 (2d Cir. 2009) (citation omitted); see also Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690-91 (1978). An "official policy" may be implemented through a "'policy statement, ordinance, regulation, or decision'" that is officially promulgated by a municipality's policy makers. Anthony v. City of New York, 339 F.3d 129, 139 (2d Cir. 2003)




(quoting Monell, 436 U.S. at 690). A "custom," for the purposes of municipal liability, must be so entrenched and well-established as to constitute a practice with the force of law. Patterson v. County of Oneida, New York, 375 F.3d 206, 226 (2d Cir. 2004).

The plaintiffs do allege a custom, here: that the defendants do not "issue proper[ly] size[d] bed frame[s] and mattress[es]" even for those individuals who are, presumably, taller than average. (Compl., ¶II.D). The problem is that this policy is not connected to any properly pled constitutional violation. Therefore, it cannot serve as the predicate for a claim of municipal liability. See, e.g., Missell, 351 F. App'x at 545 (stating that the claimed policy must have caused a constitutional violation). The plaintiffs do not, for example, allege facts showing that there is a policy of refusing to provide non-standard beds, even in cases of medical necessity.

If any of the plaintiffs is able to state a claim for a violation of the constitution (which I discuss below), in order to allege municipal liability, he will also have to allege sufficient facts that make a plausible case for finding that a policy or custom caused that violation. See, e.g., Iqbal, 556 U.S. at 678.

C. Leave to Amend

The Second Circuit has held that a pro se litigant should be afforded at least one opportunity to "amend his complaint prior to its dismissal for failure to state a claim, unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would succeed in stating a claim." Gomez v. USAA




Federal Savings Bank, 171 F.3d 794, 796 (2d Cir. 1999) (per curiam); see also Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991) (same). Because I cannot exclude the possibility that one or more of the plaintiffs here may be able to state a valid claim, they should be given an opportunity to amend the complaints.

A plaintiff may state a valid claim of a constitutional violation, for example, if he can show that (1) he had a preexisting medical condition requiring a special bed to protect against serious damage to his future health; (2) he made that medical condition known to prison officials; (3) he requested a special bed to accommodate such medical condition; and (4) his request was denied by an "official [who knew] of and disregard[ed] an excessive risk to [the plaintiff's] health or safety." See Phelps, 308 F.3d at 185-86.

Likewise, although the complaints fail to allege facts that would support either personal involvement of individual defendants or municipal liability, the plaintiffs should be accorded the opportunity to submit amended pleadings that satisfy the standards for asserting such claims.


For the foregoing reasons, I recommend that the defendants' motion to dismiss be granted and the plaintiffs' complaints be dismissed with leave to file amended complaints. Pursuant to 28 U.S.C. §636 (b)(1) and Rules 72, 6(a), and 6(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from this date to file written objections to this Report and




Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Paul A. Engelmayer, Room 660, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.

The Clerk of Court is respectfully directed to serve this Report and Recommendation on each of the plaintiffs named in the caption at his address of record.

Respectfully Submitted

1. New York Governor Andrew Cuomo was named as a defendant in the complaints, but the Honorable Paul A. Engelmayer, U.S.D.J., summarily dismissed the claims against him. (E.g., Order dated June 29, 2012 in 12 Civ. 4069).

2. One inmate, Alan Perez, does not appear to have been confined at AMKC, but rather at the George Motchan Detention Center, also located on Rikers Island.

3. Although it is unclear whether the plaintiffs are detainees awaiting trial or sentenced inmates at AMKC, the distinction is immaterial for the purposes of this discussion. Pretrial detainees' constitutional claims are analyzed under the due process clause of the Fourteenth Amendment to the Constitution, rather than the Eighth Amendment. Benjamin v. Fraser, 343 F.3d 35, 49 (2d Cir. 2003), overruled on other grounds by Caiozzo v. Koreman, 581 F.3d 63 (2d Cir. 2009). However, where the plaintiffs, as here, allege that the defendants have acted with deliberate indifference in perpetuating an unconstitutional condition of confinement or in failing to treat their serious medical needs, the analysis under the Fourteenth Amendment is the same as under the Eighth Amendment. See Caiozzo, 581 F.3d at 72. Therefore, as a shorthand, I will refer to the plaintiffs' claims as claims brought under the Eighth Amendment.

4. Judge Engelmayer ordered each of the plaintiffs to file an amended complaint naming the previously unnamed Corizon manager as a defendant once the City of New York had identified him as Dr. Jean Richards. (Order dated June 29, 2012 at 10-11 in 12 Civ. 4069). Most of the plaintiffs have failed to do so. However, for purposes of efficiency, I will assume that each of the plaintiffs has filed an amended complaint that complies with Judge Engelmayer's order. 5. The August 10 Order does not identify Howard v. City of New York, 12 Civ. 4069, as one of the cases to be addressed in the consolidated motion to dismiss, but instead lists case no. 12 Civ. 4609, a case wholly unrelated to these actions. (Aug. 10 Order at 4). It appears that two digits in the Howard case number were inadvertently transposed. This was a harmless error, however, because the defendants' motion to dismiss was served on Mr. Howard. (Certificate of Service dated Aug. 27, 2012 at 2 in 12 Civ. 4069).

6. These typewritten complaints are referred to collectively as the Complaint ("Compl.").

7. Examples include the Amended Complaint of Norman S. Howard dated Aug. 25, 2012 and the Amended Complaint of Ernest Langston dated Sept. 24, 2012.

8. Unlike other plaintiffs, Mr. Watson and Mr. Williams assert exacerbation of specific prior medical injuries — scoliosis, and Poland syndrome and scoliosis, respectively — which has resulted in "extreme pain in neck and lower back" for Mr. Watson and "extreme pain in lower back, shoulders and right leg" for Mr. Williams. (Waston Compl., ¶III; Williams Compl., ¶III).

9. Mr. Straker alleges that at two other Department of Correction facilities, he had been given a "double mattress permit" which had alleviated his back pain. (Straker Compl., ¶II.A). However, once he arrived at AMKC, which did not honor the permit, he began experiencing "major pain in [his] lower back, neck and legs" which cause him to have to lie on his right side, "creating pain in [his] upper right shoulder." (Straker Compl., ¶¶II.A, III).

10. Several plaintiffs assert in a note next to an exhibit attached to their pleadings that "dangerous" disinfectants are used to clean the mattresses. (Straker Compl. at 6; Complaint of Nestor Sanchez dated June 27, 2012 at 8; Complaint of Willie Bowman dated June 26, 2012 at 8). There is insufficient detail to determine whether they are trying to assert that the use of the cleaning liquid is a constitutional violation. Even if they were, the notes do not state a claim because the plaintiffs do not allege that the use of the disinfectants harmed them.

11. The plaintiffs do not name the Corporation Counsel as a defendant, nor could they. See, e.g., Cincotta v. New York City Human Resources Administration, 00 Civ. 9064, 2001 WL 897176 at *10 (S.D.N.Y. Aug. 9, 2001) (dismissing suit against Corporation Counsel because it is not suable entity).

12. Mr. Watson states that his scoliosis was caused when he slipped and fell at a Department of Correction facility. (Watson Opp. at 1). Although Mr. Watson's opinion regarding the causation of this condition is not entitled to any weight, medical records indicate that he was, indeed, diagnosed with mild scoliosis. (Medical Records dated Aug. 3, 2011, attached as Exh. A to Watson Opp., at 6).

13. Most of the plaintiffs have attached to their complaints copies of tags from the mattresses, which state in part that "[t]his mattress is intended to be used without a foundation." (Compl. at 9-11). The same label also notes that "[t]his mattress meets the requirements of 16 CFR 1633 (federal flammability (open flame) standard for mattress sets) when used without a foundation." (Compl. at 9-11).

14. Moreover, "the failure of a State authority to comply with State regulations" does not give rise to liability under Section 1983 unless there is "a specific conflict between a state plan or practice on the one hand and a federal mandate on the other." Concourse Rehabilitation and Nursing Center, Inc. v. DeBuono, 179 F.3d 38, 43 (2d Cir. 1999) (internal quotation marks omitted). Thus, the allegations against Mayor Bloomberg and the Commissioner are further flawed.