Amberslie v. Prisoner Transp. Serv. of Am., LLC

Full title: AKANNI AMBERSLIE, Plaintiff, v. PRISONER TRANSPORT SERVICE OF AMERICA…

Court: UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

Date published: Mar 4, 2019

Civil Action No. 9:17-CV-0564 (TJM/DEP) (N.D.N.Y. Mar. 4, 2019)

Opinion

Civil Action No. 9:17-CV-0564 (TJM/DEP)

03-04-2019

AKANNI AMBERSLIE, Plaintiff, v. PRISONER TRANSPORT SERVICE OF AMERICA, LLC, Defendant.

APPEARANCES: FOR PLAINTIFF: AKANNI AMBERSLIE, Pro Se 17-B-2005 Livingston Correctional Facility P.O. Box 91 Sonyea, NY 14556 FOR DEFENDANT: GOLDBERG SEGALLA LLP 8 Southwoods Boulevard Suite 300 Albany, NY 12211-2526 GOLDBERG SEGALLA LLP 5786 Widewaters Parkway Syracuse, NY 13214-1840 OF COUNSEL: JONATHAN M. BERNSTEIN, ESQ. SHANNON T. O'CONNOR, ESQ.

DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE

APPEARANCES: FOR PLAINTIFF: AKANNI AMBERSLIE, Pro Se
17-B-2005
Livingston Correctional Facility
P.O. Box 91
Sonyea, NY 14556 FOR DEFENDANT: GOLDBERG SEGALLA LLP
8 Southwoods Boulevard
Suite 300
Albany, NY 12211-2526 GOLDBERG SEGALLA LLP
5786 Widewaters Parkway
Syracuse, NY 13214-1840 OF COUNSEL: JONATHAN M. BERNSTEIN, ESQ. SHANNON T. O'CONNOR, ESQ. DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE

ORDER, REPORT, AND RECOMMENDATION

This is a civil rights action brought by pro se plaintiff Akanni Amberslie, an inmate currently confined in a New York State prison facility, pursuant to 42 U.S.C. § 1983, against defendant Prisoner Transportation Services, LLC ("PTS"), a corporation organized under Tennessee law, and with its principal place of business near Nashville, Tennessee. In his amended complaint, plaintiff alleges that defendant was engaged to transport him in custody from Fayetteville, Georgia to Broome County, New York as a pretrial detainee, and that during the course of the transport, he was exposed to inhumane conditions rising to a level of constitutional significance.

Currently pending before the court is a motion brought by defendant seeking dismissal of the amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(3) and 12(b)(6), without leave to replead. In the motion, defendant argues that (1) plaintiff's complaint fails to set forth facts sufficient to demonstrate the existence of a plausible due process claim; (2) plaintiff's amended complaint fails to allege facts to support that his constitutional rights were violated pursuant to an official policy or custom under the criteria set forth in Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978); and (3) venue is improper in the Northern District of New York. Alternatively, defendant seeks a transfer of the action to the Middle District of Tennessee, where defendant is headquartered, pursuant to 28 U.S.C. § 1404(a). For the reasons set forth below, I recommend that defendant's motion to dismiss be granted, and plaintiff's complaint be dismissed. I. BACKGROUND ²

2 In light of the procedural posture of this case, the following recitation is drawn principally from plaintiff's amended complaint, the contents of which have been accepted as true for purposes of the pending motion. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)); see also Cooper v. Pate, 378 U.S. 546, 546 (1964).
I have also considered plaintiff's opposition to the pending motion to the extent that it is consistent with, and elaborates upon, the factual allegations contained in the amended complaint. See Drake v. Delta Air Lines, Inc., 147 F.3d 169, 170 n.1 (2d Cir. 1998) ("[W]e deem [the plaintiff]'s complaint to include the facts contained in his memorandum of law filed in response to [the defendant]'s 1996 motion to dismiss.").

On March 14, 2017, plaintiff was transferred into the custody of defendant PTS to be transported from Georgia to New York.³ Dkt. No. 35 at 3. In the ensuing days that he was in defendant's custody, plaintiff was confined to a cramped prisoner transport van, where he was unable to move or stretch for forty or fifty hours at a time. Dkt. No. 45 at 7. Plaintiff alleges that he was not provided with his medication in a timely fashion, that he was not given three meals per day, and that he was deprived of the use of the bathroom for up to seven hours at a time, resulting in his having to use a water bottle to relieve himself. Id. at 4-7; see also Dkt. No. 35.

3 Defendant's transport of plaintiff from Georgia to New York was conducted pursuant to the Interstate Transportation of Dangerous Criminals Act of 2000, or "Jeanna's Act", Pub. L. 106-560, S.18998 (Dec. 21, 2000), codified at 34 U.S.C. § 60601 et seq., and the regulations promulgated under that Act and found at 28 C.F.R. Pt. 97.

Plaintiff alleges that he suffered these conditions as a result of defendant's "policies" and the lack of training of its personnel. Dkt. No. 35. In further support of his claim, plaintiff details the treatment of other individuals he claims were transported by defendant and subjected to either unsafe or inhumane treatment as a result of defendant's policies and lack of training. Dkt. No. 35 at 2-3. As a result of the conditions of his interstate transport, plaintiff alleges that he suffers from a variety of ailments, including anxiety, stress, headaches, night terrors, bladder issues, depression, and pain in his knees. Dkt. No. 45 at 1.

II. PROCEDURAL HISTORY

Plaintiff commenced this action on May 23, 2017. Dkt. No. 1. His original complaint named defendant PTS, the State of New York, and Broome County as defendants. Id. at 1-2. Following the grant of plaintiff's application for leave to proceed in forma pauperis and the court's review of his complaint pursuant to 28 U.S.C. §§ 1915(e), 1915A, Senior District Judge Thomas J. McAvoy issued a decision and order on June 8, 2017, in which he (1) dismissed all claims against the State of New York, with prejudice; (2) dismissed plaintiff's claims against the Broome County, without prejudice; (3) dismissed plaintiff's Fourteenth Amendment equal protection claim against defendant PTS, without prejudice; and (4) ordered that only plaintiff's Fourteenth Amendment cruel and unusual punishment claim against defendant PTS survived the court's sua sponte review. See generally Dkt. No. 4.

In lieu of answering plaintiff's complaint, defendant moved on August 31, 2017 seeking dismissal of his remaining claims for failure to state a cognizable claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See generally Dkt. No. 23. Defendant also moved to dismiss on the ground that venue was improper pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure and argued, in the alternative, that the action should be transferred to the United States District Court for the Middle District of Tennessee. See generally id. As a result of that motion, and following my issuance of a report and recommendation, Judge McAvoy issued a decision and order on February 22, 2018 dismissing plaintiff's complaint, but granting him leave to replead. Dkt. Nos. 33, 38.

Plaintiff availed himself of the opportunity to replead and filed an amended complaint on February 1, 2018. Dkt. No. 35. On March 6, 2018, defendant again moved for dismissal of plaintiff's amended complaint pursuant to Rule 12(b)(3) and 12(b)(6) of the Federal Rules of Civil Procedure, arguing in the alternative that the action should be transferred to the United States District Court for the Middle District of Tennessee, and on May 31, 2018, submitted additional materials in support of its motion. Dkt. Nos. 39, 46. Plaintiff filed papers in opposition to the motion on May 25, 2018. Dkt. No. 45. Defendant's motion, which is now fully briefed and ripe for determination, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. §§ 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed. R. Civ. P. 72(b).

III. DISCUSSION

A. Motion to Dismiss for Improper Venue⁴

4 As a magistrate judge, although I lack the authority, absent consent of the parties, to order dismissal of an action, a venue transfer is regarded as a non-dispositive matter, which falls within the scope of my non-consensual jurisdiction under 28 U.S.C. § 636(b)(1)(A). Because defendant's motion to transfer venue is raised in conjunction with its motion to dismiss, however, I have chosen to format my response to that motion as a recommendation to Judge McAvoy.

In its motion, defendant asserts that venue is improperly laid in the Northern District of New York, and that it is therefore entitled to dismissal of the amended complaint pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure. Dkt. No. 39-10 at 18-22. As an alternative to dismissal, defendant requests that the matter be transferred to the Middle District of Tennessee. See generally id. Plaintiff opposes the motion to dismiss, as well as defendant's alternative argument to transfer. See generally Dkt. No. 45.

1. Legal Standard Governing Motions to Dismiss for Improper Venue - Generally

To survive a motion to dismiss for improper venue pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure, it is the plaintiff's burden to plead that venue is proper in the district in which the case has been brought. Zaltz v. JDATE, 952 F. Supp. 2d 439, 447 (E.D.N.Y. 2013). Where, as here, the parties have not yet engaged in discovery, the plaintiff must only make a prima facie showing of venue being proper, with all the pleadings and affidavits being construed in plaintiff's favor. Starr v. Michael Stars, Inc., No. 12-CV-860, 2013 WL 12291517, at *2 (N.D.N.Y. Mar. 21, 2013) (Mordue, J.).⁵ Thus, in analyzing defendant's claim of improper venue, the court must view all facts in the light most favorable to the plaintiff. Phillips v. Audio Active Ltd., 494 F.3d 378, 384 (2d Cir. 2007). The court "may consider evidentiary matters outside the pleadings 'by affidavit or otherwise[.]' " TradeComet.com LLC v. Google, Inc., 693 F. Supp. 2d 370, 375 n.3 (S.D.N.Y. 2010) (quoting Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986)). The question of whether to dismiss on the basis of improper venue is entrusted to the sound discretion of the district court. Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir. 1993).

5 Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.

To determine whether venue in this district is "improper," and if a plaintiff's complaint is therefore subject to dismissal under Rule 12(b)(3), the court is guided by 28 U.S.C. § 1391(b), which is applicable to claims filed pursuant to section 1983. See, e.g., Phillips v. PTS of Am., LLC, No. 16-CV-0466, 2017 WL 9325623, at *2 (E.D. Ky. Sept. 12, 2017) ("There is no special venue statute for § 1983 civil rights actions."). Pursuant to section 1391(b), a civil action may be brought in:

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;

(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the

subject of the action is situated; or

(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.

28 U.S.C. § 1391(b)(1)-(3).⁶ As can be seen, "[i]n cases where the plaintiff brings a civil action in a district other than the one where any defendant lives, venue will be proper 'if a substantial part of the events or omissions giving rise to the claim occurred' in that judicial district." E. Mishan & Sons, Inc. v. Smart and Eazy Corp., No. 18-CV-3217, 2018 WL 6528496, at *7 (S.D.N.Y. Dec. 12, 2018) (quoting 28 U.S.C. § 1391(b)(2)) (finding plaintiff's choice of venue proper in the Southern District of New York where defendants, two California corporations, advertised, shipped, and marketed products to New York residents).

6 Subsection (3) of the venue statute is inapplicable unless application of subsections (1) or (2) do not yield a judicial district in which the action may be brought. See, e.g., Grasso v. Bakko, 570 F. Supp. 2d 392, 397 (N.D.N.Y. 2008) (Hurd, J.) ("Section (3) is inapplicable because there are other districts in which this action could have been brought.").

"In the event a court in which an action is pending finds that venue is improper, a court 'shall dismiss, or if it be in the interest of justice, transfer [the] case to any district or division in which it could have been brought.' " Stern v. Westerman Ball Ederer Miller & Sharfstein, LLP, No. 17-CV-0034, 2017 WL 7411022, at *7 (N.D.N.Y. Mar. 23, 2017) (Peebles, M.J) (quoting 28 U.S.C. § 1406(a)); see Goldlawr, Inc. v. Heiman, 369 U.S. 463, 465-67 (1962).

2. Venue Pursuant to 28 U.S.C. § 1391(b)(1)

A civil action may be brought in "a judicial district in which any defendant resides[.]" 28 U.S.C. § 1391(b)(1). For purposes of the present motion, defendant argues that plaintiff cannot rely on residence to establish venue in the Northern District of New York. Dkt. No. 39-10 at 19. In particular, defendant asserts that because it is incorporated in the State of Tennessee and is headquartered in Whites Creek, Tennessee, a neighborhood of Nashville, it "resides" in the Middle District of Tennessee for purposes of section 1391(b)(1). Id.; see also Dkt. No. 39-3.

Defendant's argument, however, ignores the contours of 28 U.S.C. § 1391(c)(2), which provides that for purposes of determining proper venue, a business entity "shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court's personal jurisdiction with respect to the civil action in question[.]" As a result, the venue question turns not on the location of incorporation or principal place of business, but on whether the district court can properly assert personal jurisdiction over the corporate defendant. See, e.g., Gonsalves-Carvalhal v. Aurora Bank, FSB, No. 12-CV-2790, 2014 WL 201502, at *4 (E.D.N.Y. Jan. 16, 2014).

Personal jurisdiction is determined by "a two-step inquiry." Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 169 (2d Cir. 2013)). First, the court "look[s] to the law of the forum state" to determine whether there is personal jurisdiction. Id.; see Brown v. Lockheed Martin Corp., 814 F.3d 619, 624 (2d Cir. 2015). If there is personal jurisdiction under state law, the court still must consider whether the exercise of personal jurisdiction over the out-of-state defendant "comports with due process protections established under the United States Constitution." Licci, 732 F.3d at 169; see Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001).

Here, although defendant indicates that it does not have any offices or employees in the State of New York, see Dkt. No. 39-2 at 5, because it has ignored the contours of 28 U.S.C. § 1391(c)(2), it has not provided any additional information from which the court could meaningfully analyze whether it is subject to the personal jurisdiction of the court for purposes of venue. I note, however, that defendant has not moved to dismiss the complaint for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. Moreover, it does appear that defendant "transacts . . . business" inasmuch as it provides comprehensive prisoner transportation services for law enforcement agencies across the State of New York. See N.Y. C.P.L.R. § 302(a)(1).

At this stage, when construing all pleadings and affidavits in plaintiff's favor, as the court must, particularly in the absence of additional information from defendant, I am inclined to conclude that venue is proper in the Northern District of New York pursuant to 28 U.S.C. § 1391(b)(1). Accordingly, although I recommend that defendant's motion on this basis be denied, I will proceed to subsection (2) of the venue statute.

3. Venue Pursuant to 28 U.S.C. § 1391(b)(2)

A challenge to venue pursuant to section 1391(b)(2) is informed by a two-part inquiry. Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 432 (2d Cir. 2005). "First, a court should identify the nature of the claims and the acts or omissions that the plaintiff alleges give rise to those claims." Id. Second, a court must determine whether a "substantial part of the events of omissions giving rise" to plaintiff's claim occurred in this district. Id.; 28 U.S.C. § 1391(b)(2).

In 2005, the Second Circuit joined several other circuits in clarifying that the phrase "a substantial part" does not mean "the substantial part," and, accordingly, venue may properly lie in more than one district pursuant to section 1391(b)(2). Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 356-57 (2d Cir. 2005). The court cautioned, however, that the venue statute must be strictly construed, and the term "significant" implies that "for venue to be proper, significant events or omissions material to the plaintiff's claim must have occurred in the district in question, even if other material events occurred elsewhere." Id. at 357 (emphasis in original); see also Daniel, 428 F.3d at 432.

"Substantiality is intended to preserve the element of fairness so that a defendant is not haled into a remote district having no real relationship to the dispute." Cottman Transmission Sys., Inc. v. Martino, 36 F.3d 291, 294 (3d Cir. 1994). When the material acts or omissions bear a "close nexus to the claims," they are properly considered "significant" under the statute. Daniel, 428 F.3d at 433. For events to be considered "substantial," however, "does not require a majority of the events to take place here, nor that the challenged forum be the best forum for the lawsuit to be venued." Hayes v. Transcor Am., LLC, No. 08-CV-0293, 2009 WL 1795309, at *2 (E.D. Pa. June 23, 2009) (quoting Fellner ex rel. Estate of Fellner v. Philadelphia Toboggan Coasters, Inc., No. 05-CV-2052, 2005 WL 2660351, at *3 (E.D. Pa. Oct. 18, 2005)). In other words, "significant events or omissions material to the plaintiff's claim must have occurred in the district in question, even if other material events occurred elsewhere." Glasbrenner, 417 F.3d at 357; see Fen Wang v. Tavernier, 621 F. App'x. 83, 84 (2d Cir. 2015).

Addressing the first part of the inquiry pertaining to the nature of plaintiff's claims, and drawing all reasonable inferences in his favor, I note that plaintiff alleges the following in his amended complaint: (1) defendant violated plaintiff's Fourteenth Amendment rights during his transfer from Georgia to New York in which he was "depriv[ed] of food, bathroom, unreasonable safety and medical attention"; and (2) defendant violated his Fourteenth Amendment rights through unconstitutional policies and inadequate training. See generally Dkt. No. 35. In effect, the acts or omissions giving rise to plaintiff's claims stem from defendant's allegedly unconstitutional policies and inadequate training, resulting in plaintiff's "deprivation of food," denial of bathroom breaks, "unreasonable safety," and defendant's failure to provide necessary medication. Id.; see also Dkt. No. 45.

Defendant contests venue in this district, arguing that "a substantial part" of the events did not occur in New York, and thus venue in this district is improper. See Dkt. No. 39-10 at 20-22. Although plaintiff does not specifically plead each state through which he was transported, viewing the facts in the light most favorable to plaintiff, it appears likely that the alleged acts or omissions giving rise to plaintiff's claims occurred throughout the duration of his transfer, which spanned through multiple districts from Georgia to New York. See Dkt. No. 35 at 3 (stating that plaintiff was subjected to the alleged harm "during his transport . . . from Georgia to Broome County"). According to the affidavit of defendant's president and general counsel, Joel W. Brasfield, plaintiff's transport traversed through the following states: Georgia on March 14 and 15, 2017; North Carolina, South Carolina, Virginia, and Maryland on March 16, 2017; Pennsylvania, New York, and New Jersey on March 17, 2017; New Jersey on March 18, 2017; and New Jersey and Pennsylvania on March 19, 2017. Dkt. No. 39-2 at 7-10. Plaintiff, for the second time, entered the state of New York in the early morning hours of March 20, 2017, reaching Buffalo, New York at approximately 12:30 a.m. Dkt. No. 39-2 at 10. The transport then continued through Syracuse, Oriskany, and Rome before dropping plaintiff off at his final destination in Binghamton, New York at approximately 9:00 p.m. Dkt. No. 39-2 at 10.

Despite the fact that the quantity of the acts or omissions alleged to have occurred in this district is relatively small considering the duration of his interstate transport, those acts or omissions alleged to have been committed by defendant are not insignificant. " 'Substantiality' for venue purposes is more a qualitative than a quantitative inquiry, determined by assessing the overall nature of the plaintiff's claims and the nature of the specific events or omissions in the forum, and not by simply adding up the number of contacts." Daniel, 428 F.3d at 432-33; see also Katz v. Mogus, 538 F. Supp. 2d 538, 543 (E.D.N.Y. 2007) (finding venue proper where less than one-fifth of the conduct giving rise to plaintiff's claimed damages occurred within the district).

The court is guided by similar cases involving claims against companies in the primary business of transporting prisoners. In those cases, several courts have found that although the time spent in the forum state was minimal, the defendant-transport companies' acts or omissions in the forum state still bore a "close nexus" to the plaintiffs' claims such that venue was proper. See, e.g., Hayes, 2009 WL 1795309, at *1 (quoting Leone v. Cataldo, 574 F. Supp. 2d 471, 484 (E.D. Pa. 2008)); see also Daniel, 428 F.3d at 433 ("When material acts or omissions within the forum bear a close nexus to the claims, they are properly deemed "significant" and, thus, substantial.").

For example, in Hayes v. Transcor America, LLC, plaintiff was transported by the defendant over six days, beginning in North Carolina and ending in Philadelphia, Pennsylvania. Hayes, 2009 WL 1795309, at *1. The plaintiff alleged that during the course of the transport and in accordance with its unconstitutional policies, the defendant refused to provide the plaintiff with his medications and denied his requests to use bathroom facilities, resulting in the plaintiff defecating on himself. Id. Applying the "substantial part" test of section 1391(b)(2), the district court found that venue was proper in the Eastern District of Pennsylvania. Id. at *2-4. Reasoning that the "within-[d]istrict acts or omissions" bore a close nexus to plaintiff's claims and were "qualitatively central to [p]laintiff's claims and comprised[d] part of the historical predicate" for the action, the court found venue proper in the Eastern District of Pennsylvania. Id. at *3 (quoting Estate of Moore v. Dixon, 460 F. Supp. 2d 931, 936 (E.D.Wis. 2006)) (internal quotation marks omitted); see also Hastings v. Inmate Servs. Corp., No. 2:17-CV-145, 2017 WL 5138272, at *5 (M.D. Fla. Nov. 6, 2017) (finding venue proper pursuant to section 1391(b)(2) in the Middle District of Florida on plaintiff's section 1983 claims alleging inadequate medical care during plaintiff's fifteen-day trip from California to Florida because plaintiff alleged the misconduct continued while in defendant's custody in the state of Florida and plaintiff claimed he was treated for his injuries in Florida); Schilling v. Transcor Am., LLC, No. 08-CV-0941, 2009 WL 3334889, at *4 (N.D. Cal. Oct. 14, 2009) (finding venue proper pursuant to section 1391(b)(2) because "it [was] undisputed that at least some portion of [the prisoner's] route was in the Northern District.").

Drawing all reasonable inferences in plaintiff's favor, I find that a substantial portion of the events or omissions giving rise to plaintiff's claims occurred in this district, and that venue is therefore proper in the Northern District of New York pursuant to 29 U.S.C. § 1391(b)(2). Accordingly, I recommend that defendant's motion on this basis also be denied.

B. Motion to Transfer Venue

In the alternative, defendant has requested that the court, in the exercise of its discretion, transfer the case to the Middle District of Tennessee, where PTS is headquartered, pursuant to 28 U.S.C. 1404(a). Dkt. No. 39-10 at 24-29. That section provides, in relevant part, as follows:

for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.

28 U.S.C. § 1404(a); see Gottlieb v. U.S. Sec. & Exch. Comm'n, 723 F. App'x 17, 19 (2d Cir. 2018) (summary order)). "The purpose of section 1404(a) is to prevent the waste of time, energy, and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense." Flaherty v. All Hampton Limousine, Inc., 01 Civ 9939, 2002 WL 1891212, at *1 (S.D.N.Y. Aug. 16, 2002) (internal quotation marks omitted) (quoting Eskofot A/S v. E.I. Du Pont De Nemours & Co., 872 F. Supp. 81, 94 (S.D.N.Y. 1995)); see also Van Dusen v. Barrack, 376 U.S. 612, 616 (1964). The decision of whether to grant a requested transfer under section 1404(a) is addressed to the sound discretion of the court. Nelson A. Taylor Co., Inc. v. Tech. Dynamics Grp. Inc., No. 95-CV-0431, 1997 WL 176325 (N.D.N.Y. Apr. 7, 1997) (Pooler, J.) (citing Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir. 1993)).

In this circuit, the decision of whether to grant a requested transfer under section 1404 is informed by several relevant factors, including

(1) the plaintiff's choice of forum, (2) the convenience of witnesses, (3) the location of relevant documents and relative ease of access to sources of proof, (4) the convenience of parties, (5) the locus of operative facts, (6) the availability of process to compel the attendance of unwilling witnesses, [and] (7) the relative means of the parties.

D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 106-07 (2d Cir. 2006) (alteration in original) (quoting Albert Fadem Trust v. Duke Energy Corp., 214 F. Supp. 2d 341, 343 (S.D.N.Y. 2002)); see also N.Y. Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 112 (2d Cir. 2010); Wagner v. N.Y. Marriot Marquis, 502 F. Supp. 2d 312, 314 (N.D.N.Y. 2007) (Mordue, J.).

A party seeking to transfer under section 1404(a) bears the " 'burden of making out a strong case for a transfer.' " Filmline Prods., Inc. v. United Artists Corp., 865 F.2d 513, 521 (2d Cir. 1989) (quoting Ford Motor Co. v. Ryan, 182 F.2d 329, 330 (2d Cir. 1950). Although the Second Circuit has

never explicitly approved a district court's use of the 'clear and convincing evidence' standard in ruling on a motion to transfer venue . . . [i]t is . . . appropriate that the district courts in [this] Circuit have consistently applied the clear and convincing evidence standard in determining whether to exercise discretion to grant a transfer motion.

N.Y. Marine, 599 F.3d at 113-14. Thus, the court should not "disturb a plaintiff's choice of forum 'unless [the d]efendants make a clear and convincing showing that the balance of convenience favors [their] choice.'" View 360 Sols., LLP v. Google, Inc., 12-CV-1352, 2013 WL 998379, at *1 (N.D.N.Y. Mar. 13, 2013) (Dancks, M.J.), report and recommendation adopted by 2013 WL 12130430 (N.D.N.Y. Aug. 13, 2013) (Suddaby, C.J.).

Here, because this case could have been brought in the proposed transferee district, the determination of whether the action should be transferred to the Middle District of Tennessee will turn on the balance of the convenience and interest of justice factors. While plaintiff's choice of forum is afforded considerable weight, "[c]onvenience of both party and non-party 'witnesses is probably the single-most important factor in the analysis of whether transfer should be granted.' " In re Bennett Funding Grp., Inc., 259 B.R. 243, 249 (N.D.N.Y. 2001) (Kahn, J.) (quoting Berman v. Informix Corp., 30 F. Supp. 2d 653, 657 (S.D.N.Y. 1998)). An evaluation of this factor typically involves weighing the materiality of testimony witnesses may provide, the number of witnesses, and where those witnesses are located. See View 360, 2013 WL 12130430, at *5. To that end, the Second Circuit has stated that when a party seeks to rely on the "convenience of witnesses" factor, the party "must clearly specify the key witnesses to be called and must make a general statement of what their testimony will cover." Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir. 1978), abrogated on other grounds by Pirone v. MacMillan, Inc., 894 F.2d 579, 586 (2d Cir. 1990). This requirement exists so that the court may appropriately assess the inconvenience of a particular forum. See Beatie & Osborn LLP v. Patriot Sci. Corp., 431 F. Supp. 2d 367, 396 (S.D.N.Y. 2006).

Here, through the affidavit of Mr. Brasfield, defendant PTS states that it expects to call James Carder, an individual whom they identify as the "Officer in Charge" and one of the drivers participating in plaintiff's transport, as a witness. Dkt. No. 39-2 at 5. Defendant acknowledges, however, that Mr. Carder does not reside in Tennessee, but is based in Florida. Id. Although the Middle District of Tennessee is somewhat closer to Mr. Carder's residence, either district would be equally inconvenient for that witness.

Defendant also states that "the number of witnesses relevant to this action is unknown, but witnesses with knowledge of extradition transports such as this one . . . are located in Tennessee." Id. at 6. Plaintiff, on the other hand, has identified numerous witnesses who he believes will testify on his behalf regarding the conditions of his transportation, including one of the two drivers of the transport. See Dkt. No. 45 at 7-9. Plaintiff claims his witnesses are located in the northeast, including in Syracuse, New York, Pennsylvania, and New Jersey, although he does provide the specific location of each witness listed. See Dkt. No 45 at 7-9. While the "convenience of witness" factor would normally weigh in favor of defendant in light of plaintiff's allegations regarding the unconstitutional policies of defendant, considering plaintiff's identification of specific witnesses that he intends to call at trial, I do not find that this factor weighs heavily in favor of one party over the other such that it should disturb plaintiff's choice of venue.

With respect to the third convenience and interest of justice factor, including the location of documents, defendant recognizes that "[a]lthough documents in this case may be available electronically, . . . it will be easier to access in the Middle District of Tennessee since all of the original documents are housed at Defendants home office located in Whites Creek, Tennessee." Dkt. No. 39-10 at 26-27. Although the documents are physically located in Tennessee and this factor would weigh in favor of transfer, "the [c]ourt does not view it as particularly significant given that we live in a technological age, where electronic production has become the norm in litigation." Zaltz, 952 F. Supp. 2d at 462. In addition, this factor is not entitled to great weight because defendant has not indicated that transporting the original documents from Tennessee would be particularly burdensome. See, e.g., Larew v. Larew, 11-CV-5771, 2012 WL 87616, at *5 (S.D.N.Y. Jan. 10, 2012); see also Weintraub v. Advanced Corr. Healthcare, Inc., 161 F. Supp. 3d 1272, 1283 (N.D. Ga. 2015) ("Since the predominance of electronic discovery in the modern era, most courts have recognized that the physical location of relevant documents is no longer a significant factor in the transfer inquiry").

Turning next to the fourth factor and considering the convenience of the parties, it is true that defendant will suffer some inconvenience if the case remains in the Northern District of New York. The reality, however, is that the plaintiff is currently incarcerated in a facility located within the Western District of New York, and therefore will suffer considerable hardship if the case were to be transferred to the Middle District of Tennessee. " '[W]here transfer would merely shift the inconvenience from one party to the other,' the court should leave plaintiff's choice of venue undisturbed." Wagner, 502 F. Supp 2d at 316 (quoting Wilshire Credit Corp. v. Barrett Capital Mgmt. Corp., 976 F. Supp. 174, 182 (W.D.N.Y. 1997)). Accordingly, this factor favors the action remaining in the Northern District of New York and against transferring the action to the Middle District of Tennessee.

When examining the locus of operative facts, "courts look to the 'site of the events from which the claim arises.' " Oubre v. Clinical Supplies Mgmt., Inc., No. 05-CV-2062, 2005 WL 3077654, at *4 (S.D.N.Y. Nov. 17, 2005) (quoting 800-Flowers, Inc. v. Intercontinental Florist, Inc., 860 F. Supp. 128, 134 (S.D.N.Y. 1994)). While the alleged harm suffered by plaintiff may ultimately have flowed from defendant's policies, which were likely drafted and originated in Tennessee, where PTS is headquartered, the relevant events themselves are alleged to have occurred as a continuum over the course of plaintiff's journey from Georgia to New York. This factor is thus neutral, at best.

As for the availability of process to compel the attendance of unwilling witnesses, this court has the authority to compel the attendance of a non-party witness within one hundred miles of where the individual resides, is employed, or regularly conducts business. Fed. R. Civ. P. 45(c)(1)(A). For party witnesses, the court may compel a witness's compliance within the state where the person resides, is employed, or regularly transacts business. Fed. R. Civ. P. 45(c)(1)(B). Defendant has indicated that the witnesses it intends to call either reside in Florida or Tennessee, and thus the court is not convinced it may compel those witnesses, if they were unwilling, to attend a trial in the Northern District of New York. See Dkt. 39-2 at 4-5 (identifying defendant's potential witnesses). Plaintiff has stated that he believes one potential witness lives in Syracuse, whereas another potential witness may reside in New Jersey. See Dkt. No 45 at 7-9. For the remainder of the witnesses listed by plaintiff, no residence was provided. See Dkt. No 45 at 9 (listing the names of thirteen witnesses). Considering that the location of plaintiff's witnesses is likely speculative, the court is not convinced it has the authority to compel the attendance of any witnesses listed by plaintiff. Thus, this factor weighs in favor of defendant's requested transfer where the majority its witnesses may be compelled to attend in the Middle District of Tennessee.

Finally, with respect to the relative means of the parties, I find that this factor weighs heavily in favor of plaintiff. "Where a disparity exists between the means of the parties, such as in the case of an individual suing a large corporation, the court may consider the relative means of the parties in determining where a case should proceed." 800-Flowers, Inc., 860 F. Supp. at 135. In response to defendant's motion to transfer, plaintiff asserts that he is proceeding pro se and has limited resources. Dkt. No. 45 at 8. Plaintiff further notes that travel to Tennessee is hindered by his incarceration. Id. Where a party argues against transfer based on inadequate means, he must offer documentation to demonstrate that transfer would be unduly burdensome on his or her finances. See Zaltz, 952 F. Supp. 2d at 463-64 (citing cases); see also Weintraub, 161 F. Supp. 3d at 1284 (concluding that because the defendant was "a large and established company" and plaintiff was "retired and of modest means," this factor weighed against transfer). As plaintiff is proceeding in forma pauperis in this matter, documentation is before the court regarding plaintiff's financial status. See generally Dkt. No. 2. In light of the apparent disparity in the financial means of the parties, the court finds that this factor weighs heavily in favor of keeping the case in this district.

Finally, defendant argues that in the interest of justice and trial efficiency, this matter should be transferred. While courts often consider this factor in making a transfer determination, see, e.g., 800-Flowers, 860 F. Supp. at 135 (discussing application of the "interest of justice" factor), defendant has not offered any meaningful points for consideration beyond the factors already discussed herein. See Dkt. No. 39-10 at 29. Thus, I find no compelling reason as to why the matter should be transferred to the Middle District of Tennessee.

On consideration of the relevant factors, I find that notions of convenience and fairness weigh in favor of upholding plaintiff's choice of venue in this district. While defendant has demonstrated that it would suffer some inconvenience should the matter remain here, other factors weigh heavily in plaintiff's favor, namely plaintiff's choice of forum, plaintiff's residence, and the relative means of the parties. Accordingly, I recommend that defendant's motion to transfer be denied.

C. Defendant's Motion to Dismiss Pursuant to Rule 12(b)(6)

1. Legal Standard

A motion to dismiss a complaint, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, calls upon a court to gauge the facial sufficiency of that pleading using a standard which, though unexacting, "demands more than an unadorned, the-defendant-unlawfully-harmed me accusation" in order to withstand scrutiny. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, "a pleading must contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.' " Iqbal, 556 U.S. 677-78 (quoting Fed. R. Civ. P. 8(a)(2)). While modest in its requirements, that rule commands that a complaint contain more than mere legal conclusions. See Iqbal, 556 U.S. at 679 ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.").

In deciding a Rule 12(b)(6) dismissal motion, the court must accept the material facts alleged in the complaint as true and draw all inferences in favor of the non-moving party. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Twombly, 550 U.S. at 555-56); see also Cooper, 378 U.S. at 546; Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003); Burke v. Gregory, 356 F. Supp. 2d 179, 182 (N.D.N.Y. 2005) (Kahn, J.). To withstand 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.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570); see also Ruotolo v. City of N.Y., 514 F.3d 184, 188 (2d Cir. 2008). As the Second Circuit has observed, "[w]hile Twombly does not require heightened fact pleading of specifics, it does require enough facts to 'nudge plaintiffs' claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 570) (alterations omitted).

When assessing the sufficiency of a complaint against this backdrop, particular deference should be afforded to a pro se litigant, whose complaint merits a generous construction by the court when determining whether it states a cognizable cause of action. Erickson, 551 U.S. at 94 ("'[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976) (citation omitted)); Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) ("[W]hen a plaintiff proceeds pro se, a court is obliged to construe his pleadings liberally." (quotation marks and alterations omitted)); Kaminski v. Comm'r of Oneida Cty. Dep't of Soc. Servs., 804 F. Supp. 2d 100, 104 (N.D.N.Y. 2011) (Hurd, J.) ("A pro se complaint must be read liberally.").

2. Plaintiff's Due Process Claim

Section 1983 "establishes a cause of action for 'the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." German v. Fed. Home Loan Mortg. Corp., 885 F. Supp. 537, 573 (S.D.N.Y. 1995) (citing Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983)). It " 'is not itself a source of substantive rights[,] . . . but merely provides 'a method for vindicating federal rights elsewhere conferred[.]' " Patterson v. Cty. of Oneida, 375 F.3d 206, 225 (2d Cir. 2004) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). In order to state a claim pursuant to section 1983, a plaintiff must allege "(1) 'that some person has deprived him of a federal right,' and (2) 'that the person who has deprived him of that right acted under color of state . . . law.' " Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640 (1980)); accord, Byng v. Delta Recovery Servs. LLC, 568 F. App'x 65, 65-66 (2d Cir. 2014).

State action is an essential element of any claim that is brought pursuant to section 1983. Gentile v. Republic Tobacco Co., No. 95-CV-1500, 1995 WL 743719, at *2 (N.D.N.Y. Dec. 6, 1995) (Pooler, J.) (citing Velaire v. City of Schenectady, 862 F. Supp. 774, 776 (N.D.N.Y. 1994) (McAvoy, J.)). A private entity becomes a state actor when there is " 'such a close nexus between the [s]tate and the challenged action' that the state is 'responsible for the specific conduct." Fabrikant v. French, 691 F.3d 193, 206 (2d Cir. 2012) (alteration and emphasis in original) (quoting Cranley v. Nat'l Life Ins. Co. of Vt., 318 F.3d 105, 111 (2d Cir. 2003)). Courts employ three main tests to determine whether private actions are attributable to the states:

(1) [when] the entity acts pursuant to the coercive power of the state or is controlled by the state ("the compulsion test"); (2) when the state provides significant encouragement to the entity, the entity is a willful participant in joint activity with the state, or the entity's functions are entwined with state policies ("the joint action test" or "close nexus test"); or (3) when the entity has been delegated a public function by the state ("the public function test").

Id. at 207 (quoting Sybalski v. Indep. Grp. Home Living Program Inc., 546 F.3d 255, 257 (2d Cir. 2008)).

Notably, numerous district courts have permitted a plaintiff to proceed with section 1983 claims against private corporations engaged in offering prison transport services. See, e.g., McCorvey v. Prison Transp. Servs. of Am., LLC, No. CV 16-16993, 2017 WL 2270024, at *3 n.5 (Apr. 25, 2017), report and recommendation adopted by 2017 WL 2256778 (E.D. La. May 23, 2017); Lewis v. Extradition Transp. of Am., No. 13-CV- 0138, 2014 WL 494573, at *4 & n.2 (D. Mont. Feb. 5, 2014); Nave v. Trans-Cor of Am., No. 06-CV-1065, 2007 WL 2156670, at *4 (D.S.C. July 26, 2007). Here, all parties acknowledge that defendant is a private entity. Dkt. 35 at 1; Dkt. 39-2 at 4. At this juncture, however, defendant does not dispute that it is a state actor for purposes of a claim brought pursuant to section 1983. See Dkt. 39-10 at 14.

Defendant does argue that plaintiff's allegations, even if accepted as true, do not rise to a level of constitutional significance nor do the facts as pled support a finding that any PTS employee acted with the requisite state of mind necessary to establish a due process violation. Dkt. No. 39-10 at 12-13. As a state pretrial detainee, plaintiff's claims are subject to analysis under the due process clause of the Fourteenth Amendment, which governs claims of unconstitutional conditions of confinement of non-sentenced prisoners. Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017); Brown v. City of New York, No. 13-CV-06912, 2017 WL 1390678, at *10 (S.D.N.Y. Apr. 17, 2017). To establish such a claim under the Fourteenth Amendment, a pretrial detainee must demonstrate that the defendant responsible for the allegedly unconstitutional conditions of confinement acted with deliberate indifference to the plaintiff's circumstances. Darnell, 849 F.3d at 29; Brown, 2017 WL 1390678, at *10. This, in turn, entails a two-prong inquiry, including both "an 'objective prong' showing that the challenged conditions were sufficiently serious to constitute objective deprivations of the right to due process, and a 'subjective prong'—perhaps better classified as a 'mens rea prong' or 'mental element prong'—showing that the [defendant] acted with at least deliberate indifference to the challenged conditions." Darnell, 849 F.3d at 29.

To satisfy the objective prong at the pleading stage, plaintiff must allege facts that plausibly demonstrate, either alone or in combination, that he faced conditions posing an unreasonable risk of serious damage to his health. Darnell, 849 F.3d at 29. There is no bright-line "test" to determine whether the deprivation is sufficiently serious; rather, the objective prong is " 'evaluated in light of contemporary standards of decency.' " Id. (quoting Blissett v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995)); see also Rhodes v. Chapman, 452 U.S. 337, 346 (1981). Applying this standard, I note that the Second Circuit has held a prisoner may not be deprived of basic human needs, including, for example, food, shelter, medical care, and reasonable safety. Darnell, 849 F.3d at 29 (quoting Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012)). Under Darnell, the second prong is ultimately informed through an objective lens as

the pretrial detainee must prove that the defendant-official 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. In other words, the 'subjective prong' (or 'mens rea prong') of a deliberate indifference claim is defined objectively.

Id. at 35.

Plaintiff alleges that defendant subjected him to "the deprivation of food, bathroom, unreasonable safety and medical attention," and was provided "a fast food sandwich for days when a prisoner is provided 3 meals a day." Dkt. No. 35 at 3 (internal quotation marks omitted). In his opposition to defendant's motion, plaintiff elaborates that "everytime [sic] myself or anyone on the van requested permission to use the bathroom[,] [Officer Carder would say that he had to call a local precinct or jail to see if they would allow us to stop at their jail and allow us to use the bathroom." Dkt. No. 45 at 7. Plaintiff further states that although he cannot recall every bathroom break during the course of the transport, he remembers "several occasions where [he and fellow prisoners] weren't allowed to use the bathroom for several hours," and he used "water bottles for a urinal for most of this trip." Id. Regarding food, plaintiff recounted one occasion where he was fed by hospital staff from Oneida Hospital as opposed to being provided food by PTS drivers. Id. at 3. In his response, plaintiff does not elaborate any further regarding his alleged "deprivation of food," nor does he elaborate upon his allegation of "unreasonable safety." See generally Dkt. No. 45; Dkt. No. 35 at 3.

With respect to the allegation that he was deprived of medical attention, plaintiff provides additional facts in his opposition, alleging that "[b]etween the time of March 14^th- March 19 2016 [he] was denied [his] blood pressure medication when [he] was having serious problems due to hypertension"; "[t]he PTS officers were told by the nurse at fayetteville county jail that it was extremely important that [he] was given [his] medication every morning at 8:00 a.m. consistently"; "[he] was only given [his] medication in Georgia and Maryland"; [he] only received [his] medication in Maryland while using the restroom at a police station on the 16^th at 11:00 p.m. [He] didn't receive medication until leaving Kearney NJ in the morning 3 days after"; "[t]he mishandling of [his] medication could have resulted in [his] having a stroke or a heart attack while on the highway traveling through a number of different states." Dkt. No. 45 at 4-5.

Plaintiff's broad allegations regarding the deprivation of food, bathroom breaks, and unreasonable safety, over a relatively brief, finite period, which have been accepted as true as they must at this procedural stage, fail to rise to a level sufficient to sustain claim for a due process violation under the Fourteenth Amendment. See e.g., Walker v. Schriro, 2013 WL 1234930, at *12-*13 (S.D.N.Y. Mar. 26, 2013) (finding that a two-day confinement without access to "access to food, shower, linens, running water, and a bathroom" did not amount to a constitutional deprivation); Dzwonczyk v. Syracuse City Police Dep't, 710 F. Supp. 2d 248, 269 (N.D.N.Y. 2008) (McCurn, J.) (finding that an overnight deprivation of food and water did not amount to a constitutional deprivation). Although plaintiff's amended complaint appears to allege that defendant had knowledge of the alleged prohibited conduct through its application of unconstitutional policies, as discussed herein, the harm alleged by plaintiff does not rise to a level of constitutional significance. Thus, the court need not analyze the second, mens rea prong of the test for plaintiff's allegations regarding the deprivation of food and bathroom breaks and unreasonable safety.⁷

7 I note that plaintiff's amended complaint states documents are attached to his pleading "in substantiation of this objective prong." See Dkt. No. 35. However, no such documents are attached to his amended complaint.

Plaintiff's allegations claiming deprivation of medical care require closer examination, as plaintiff elaborates to a greater extent regarding defendant's alleged failure to provide plaintiff his medication. Although not specifically set forth, the court liberally construes plaintiff's amended complaint, in conjunction with his opposition to defendant's motion to dismiss, to assert a claim for deliberate indifference to his medical needs. To plead a cognizable medical deprivation claim under the Fourteenth Amendment, plaintiff's allegations must still meet the two-prong analysis discussed above—that is, plaintiff must establish that the deprivation was "sufficiently serious" and that defendant was aware of plaintiff's medical needs and "consciously disregarded a substantial risk of serious harm" to plaintiff's health. See, e.g., Dzwonczyk, 710 F. Supp. 2d at 268 (internal citations omitted). At this juncture, I am unable—given the paucity of factual allegations in his amended complaint—to determine whether plaintiff's medical condition constitutes a "sufficiently serious" condition. See Araujo v. City of New York, No. 08-CV-3715, 2010 WL 1049583, at *7 (E.D.N.Y. Mar. 19, 2010) (stating that "[a]lthough the Second Circuit has articulated factors that are relevant to whether a medical condition is 'sufficiently serious,' . . . the [c]ourt cannot make a conclusive determination on that issue in this case at the motion to dismiss stage, based upon the allegations in the complaint" where plaintiff alleged he needed various medications for his diabetes, high blood pressure, and post-traumatic stress disorder).

However, even assuming that plaintiff has satisfied the first prong of the analysis, plaintiff has not sufficiently pled facts reflecting that defendant acted with reckless indifference to plaintiff's medical condition. Despite plaintiff's allegation that a nurse from the Fayetteville County Jail informed defendant of plaintiff's need to take blood pressure medication, plaintiff has not alleged he informed defendant that he had a life-threatening medical condition, made requests to defendant for his medications, or requested immediate medical care at any of the stops during the transport. See Dkt. Nos. 35, 45. At best, plaintiff's allegations tend to show little more than an inadvertent failure to provide him with adequate medical care over a brief period, and thus fail to rise to a level of constitutional magnitude. See, e.g., Araujo, 2010 WL 1049583, at *7 (finding only inadvertent failure to provide medical care where plaintiff failed to request immediate emergency care while in custody and failed to inform an official that he had a "serious medical condition that caused extreme pain, was life-threatening or fast-degenerating"). Moreover, despite the fact that plaintiff was to take his medication daily, plaintiff admits that his need for his medication did not go completely ignored by defendant. See Dkt. No. 45 at 4 (noting that he received his medication in Georgia, Maryland, and New Jersey); see also Dzwonczyk, 710 F. Supp. 2d at 269 (finding that "because [the p]laintiff's alleged injury is not sufficiently serious, and because he alleges that his medical concerns were addressed by at least one person, he fails to state a claim against [the d]efendants for deliberate indifference to a medical need.").

Accordingly, since plaintiff has failed to allege facts to support a cognizable due process claim under the Fourteenth Amendment, I recommend a finding that his remaining claim is subject to dismissal.

2. Plaintiff's Supervisory Claims Under Monell

As an alternative basis for seeking dismissal under Rule 12(b)(6), defendant argues that plaintiff's allegations fail to satisfy the criteria set forth under Monell.

Even assuming plaintiff could meet his burden to demonstrate a plausible due process claim, this would not carry the day for plaintiff. Similar to holding a municipality liable for a constitutional tort, when attempting to hold a private entity accountable, plaintiff must allege that actions of defendant's employees were taken pursuant to some official policy or custom of defendant that caused the constitutional violation to occur. Rojas v. Alexander's Dep't Store, 924 F.2d 406, 408 (2d Cir. 1990); see, e.g., Karn v. PTS of Am., LLC, No. 16-CV-3261, 2017 WL 4162251, at *5 (D. Md. Sept. 19, 2017) (noting that the plaintiff could "proceed only against the PTS employees in their personal capacities, or seek to establish that the employees were acting pursuant to an official policy or custom of PTS."); Bess v. City of New York, No. 11-CV-7604, 2013 WL 1164919, at *2 (S.D.N.Y. Mar. 19, 2013) ("Despite the fact that it is a private entity, [the private defendant] enjoys the benefit of the Monell requirements for the same reason it may be named as a defendant in a [section] 1983 suit."). In the absence of such a showing, a private entity, such as defendant, cannot be held liable for the constitutional torts of its employees because there is no respondeat superior liability under section 1983, whether the defendant is a municipality or a private entity acting for the state. See Rojas, 924 F.2d at 40; Whalen v. Allers, 302 F. Supp. 2d 194, 202-03 (S.D.N.Y. 2003).

An entity may be held accountable for a constitutional violation that has occurred pursuant to "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the municipality's] officers . . . [or] pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decision-making channels." Monell., 436 U.S. at 690-91. Such liability can be established in various ways, including through "proof of an officially adopted rule or widespread, informal custom[] [demonstrating] 'a deliberate government policy of failing to train or supervise its officers.' " Bruker v. City of N.Y. 337 F. Supp. 2d 539, 556 (S.D.N.Y. 2004) (quoting Anthony v. City of N.Y., 339 F.3d 129, 140 (2d Cir. 2003)). A plaintiff may also show that the allegedly unconstitutional action was "taken or caused by an official whose actions represent official policy," Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000), or when municipal officers have acquiesced in or condoned a known policy, custom, or practice that violates federal law. Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 126 (2d Cir. 2004); see also Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007) ("Monell's policy or custom requirement is satisfied where a local government is faced with a pattern of misconduct and does nothing, compelling the conclusion that the local government has acquiesced in or tacitly authorized its subordinates' unlawful actions.").

A state actor's failure to act "satisfies the policy or custom requirement only where the need to act is so obvious, and the inadequacy of current practices [is] so likely to result in a deprivation of federal rights[] that the municipality . . . can be found deliberately indifferent to the need." Reynolds, 506 F.3d at 192 (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989)). Assuming a plaintiff can prove that a state action has acquiesced to a pattern of conduct that may result in a violation of federal law, "for liability to attach[,] . . . the identified deficiency . . . must be closely related to the ultimate injury." City of Canton, 489 U.S. 391; accord, Amnesty Am., 361 F.3d at 130 ("City of Canton requires that plaintiffs establish not only that the officials' purported failure to train occurred under circumstances that could constitute deliberate indifference, but also that plaintiffs identify a specific deficiency in the city's training program and establish that . . . it actually caused the constitutional deprivation." (internal quotation marks omitted)).

Plaintiff's complaint fails to allege facts that would plausibly establish Monell liability on the part of defendant PTS. See generally Dkt. No. 35. The Supreme Court's decision in Twombly and Iqbal both require that Monell-like liability claims provide a "factual description of such a policy, not just bald allegations that such a thing existed." Bess, 2013 WL 1164919, at *2 (citing Davis v. City of New York, 07-CV-1395, 2008 WL 2511734 (S.D.N.Y. June 19, 2008)); see also Dilworth v. Goldberg, 914 F. Supp. 2d 433, 454 (S.D.N.Y. 2012) (requiring more than simply conclusory allegations that an employee did not receive proper training and unexplained implications that additional training would have resulted in better conditions).

Here, plaintiff alleges that defendant employs multiple policies that result in the endangerment of passengers' lives during transport. Dkt. No. 35 at 2. These purported "policies" on behalf of defendant include a policy to "operate vans without bathrooms," lack of adequate bathroom breaks, and a lack of seatbelts in the prisoner transport vans. Id. (internal quotation mark omitted). Plaintiff alleges that with respect to the lack of seatbelt policy, it has resulted in over ten "crashes involving injuries and even death . . . because prisoners are shackled, but without [seatbelts and] unable to brace themselves." Id. However, plaintiff simply alleges that because certain conditions existed, they result from unidentified policies, as opposed to providing a factual description of the alleged policies. Likewise, plaintiff has also failed to plead sufficient facts to show that such customs constitute a deprivation of federal rights such that defendant may be found deliberately indifferent to plaintiff's needs.

Moreover, plaintiff contends that although defendant provides training to its employees, that training is wholly inadequate. Dkt. No. 35 at 1-2. Plaintiff contends that defendant's employees do not receive training in "medical and mental health education," which would plaintiff alleges would "prevent[ the] deprivation of life, [and] minimize[] the risk of injuries" suffered by prisoners during transport. Id. at 2. Yet, plaintiff has not pleaded any facts with respect to how this alleged failure to train resulted in a deprivation of plaintiff's rights.

Plaintiff also points to specific instances where passengers were allegedly injured during the course of their transportation by defendant, including a 2009 crash that resulted in the death of an unidentified passenger due to lack of seatbelt; the 2014 death of William Weintraub due to lack of medical attention; the 2014 death of Denise Isaacs due to lack of medical attention; and the 2016 death of William Culpepper due to lack of medical attention. Dkt. No. 35 at 3. These isolated instances devoid of any further context, while perhaps indicating negligence on the part of individual drivers, do not amount to a pattern of misconduct. Reynolds, 506 F.3d at 192 ("Such a pattern, if sufficiently persistent or widespread as to acquire the force of law, may constitute a policy or custom within the meaning of Monell."). There are no allegations as to when the training occurred, what training was provided to the driver on plaintiff's transport, or most notably, any connection to the ultimate injury alleged in this case.

Accordingly, as an alternative basis for dismissal of plaintiff's remaining claim, I recommend a finding that plaintiff's amended complaint fails to allege facts that would demonstrate a plausible basis to find Monell-type liability on the part of defendant PTS.

D. Whether to Permit Amendment

Ordinarily, a court should not dismiss a complaint filed by a pro se litigant 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." Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991); see also Fed. R. Civ. P. 15(a) ("The court should freely give leave when justice so requires."); see also Mathon v. Marine Midland Bank, N.A., 875 F. Supp. 986, 1003 (E.D.N.Y.1995) (permitting leave to replead where court could "not determine that the plaintiffs would not, under any circumstances, be able to allege a civil RICO conspiracy"). An opportunity to amend is not required, however, where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) ("Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice."). Stated differently, "[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend." Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v. Peters, No. 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.).

In this instance, the deficiencies identified in this report are substantive in nature and extend beyond the mere sufficiency of plaintiff's complaint. Moreover, plaintiff has already been afforded one opportunity to amend his complaint and failed to cure the deficiencies there were identified by the court. See Dkt. Nos. 33, 38. Because I find that any amendment that might be offered by plaintiff would be futile, I recommend against granting him leave to further amend his complaint.

IV. ORDER, SUMMARY, AND RECOMMENDATION

While plaintiff's experience during his transport from Georgia to New York may have been unpleasant and uncomfortable, he has failed to plausibly allege that defendant's policies resulted in a deprivation of a constitutional magnitude. Accordingly, it is hereby respectfully

RECOMMENDED that defendant's motion to dismiss (Dkt. No. 39) be GRANTED in part to the extent outlined in this report and recommendation, and that plaintiff's amended complaint (Dkt. No. 35) be DISMISSED, without leave to replead.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report.⁸ FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993). It is further hereby

8 If you are proceeding pro se and are served with this order, report and recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the report and recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).

ORDERED that the clerk of the court is respectfully directed to modify the court's records to change defendant Prisoner Transport Service of America, LLC name on the docket to "Prisoner Transportation Services of America, LLC"; and it is further hereby

ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.

/s/_________

David E. Peebles

U.S. Magistrate Judge Dated: March 4, 2019

Syracuse, New York