Briccetti. J.

OPINION AND ORDER :

Plaintiff Renay Lynch, an inmate proceeding pro se, brings this Section 1983 civil rights action, alleging defendants were deliberately indifferent to her safety and her medical needs in violation of the Eighth Amendment. Defendants Blue, Waxter, and Asquith are Correctional Officers employed by the New York State Department of Corrections and Community Supervision at Bedford Hills Correctional Facility ("Bedford Hills") in Bedford Hills, New York.

Defendants move to dismiss the complaint under Rule 12(b)(6). (Doc. #26).

For the reasons set forth below, defendants' motion is GRANTED.

The Court has jurisdiction under 28 U.S.C. § 1331.

BACKGROUND

The following facts are drawn from the complaint and documents on which plaintiff relied in bringing suit. DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (noting the court may consider documents integral to the complaint if it is clear on the record that no dispute exists regarding the authenticity or accuracy of the documents).

At all relevant times, plaintiff was incarcerated at Bedford Hills. On February 20, 2014, she and several other inmates were being transported in a van back to Bedford Hills from a medical trip to Mt. Vernon Hospital, Officer Asquith drove, Officer Blue was in the front passenger seat, and Officer Waxter sat in the back of the van with the inmates. Plaintiff alleges Officers Asquith and Blue had "loud music blasting" while they were "traveling in a fast moving van on a dark highway at 7:30 p.m. at night." (Compl. ¶ 2). Plaintiff alleges the van was traveling 65 to 70 miles per hour and the officers listened to music because they were "laid back[,] trying to enjoy themselves and block the inmates out." (Pl.'s Opp. at 6).

Suddenly, one of the inmates began having a seizure, "causing chaos in the vehicle." (Compl. ¶ 2). Officer Waxter "panicked" (Pl.'s Opp. at 1), and "asked [plaintiff] to get up out [of her] seat and move . . . so [Officer Waxter] could help [the inmate] having seizures." (Compl. ¶ 2). Plaintiff, shackled with leg irons and chains around her waist, got up and was "thrown to [the] front of [the] van and then landed in [the] door well." Id. Plaintiff contends she injured her right hand, which was bandaged and in a sling from a recent operation. She also alleges she hurt her back and the right side of her body, and her "left index finger [was] busted open" and bleeding. Id. ¶¶ 2, 3.

Defendants brought the inmate who had the seizure to Westchester Medical Center. Plaintiff alleges defendants saw her "bleeding as she and the other inmates stood on the sidewalk" (Pl.'s Opp. at 6), but they "refused to have [her] seen [by medical personnel] at Westchester Medical." (Compl. ¶ 2).

After arriving back at Bedford Hills, plaintiff alleges Officer Waxter "refused to report [her] injuries or file an incident report" in an attempt to cover up the incident. (Compl. ¶ 2). Plaintiff concedes nurses in the medical department treated her injuries that same day.

On February 21, 2014, plaintiff filed an inmate grievance complaint based on Officer Waxter's refusal to file an incident report about plaintiff's injuries. The superintendent denied plaintiff's grievance, and plaintiff appealed.

Plaintiff alleges she had a second operation on her finger on June 25, 2014, and her right thumb is now deformed. On August 25, 2014, plaintiff filed her complaint (Doc. #1), and on June 30, 2015, defendants moved to dismiss for failure to state a claim pursuant to Rule 12(b)(6). (Doc. #24).

DISCUSSION

I. Legal Standard

A. Rule 12(b)(6) Standard

In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the operative complaint under the "two-pronged approach" articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, plaintiff's legal conclusions and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are not entitled to the assumption of truth and are thus not sufficient to withstand a motion to dismiss. Id. at 678; Hayden v. Paterson, 594 F,3d 150, 161 (2d Cir. 2010). Second, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 556 U.S. at 679.

To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard of "plausibility." Id. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. at 678. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.

The Court must liberally construe submissions of pro se litigants, and interpret them "to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal quotation marks and citation omitted). Applying the pleading rules permissively is particularly appropriate when, as here, a pro se plaintiff alleges civil rights violations. See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). "Even in a pro se case, however . . . threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation marks and citation omitted). Nor may the Court "invent factual allegations" plaintiff has not pleaded. Id.

II. Eighth Amendment Claims

Construed liberally, plaintiff's complaint alleges defendants violated her Eighth Amendment rights by (i) failing to protect her safety in the van and (ii) failing to provide medical treatment once she became injured. The Court addresses each theory of liability in turn.

A. Safe Conditions of Confinement

The Eighth Amendment requires prison conditions to be at least "humane." Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)). To adequately allege an Eighth Amendment violation, an inmate must satisfy objective and subjective elements of a two-pronged test.

First, under the objective prong, an inmate must allege facts showing she was denied "the minimal civilized measure of life's necessities." Farmer v. Brennan, 511 U.S. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 346 (1981)). When, as here, the claim is based on an alleged failure to prevent harm or provide safety, the inmate must show she "is incarcerated under conditions posing a substantial risk of serious harm." Id.

Second, under the subjective prong, an inmate must allege facts showing officials acted with "deliberate indifference" to the inmate's "health or safety." Farmer v. Brennan, 511 U.S. at 834. A correctional officer acts with deliberate indifference only when he "has knowledge that an inmate faces a substantial risk of serious harm and he disregards that risk by failing to take reasonable measures to abate the harm." Haves v. New York City Dep't of Corrs., 84 F.3d 614, 620 (2d Cir. 1996). A prison official "must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir. 2000) (quoting Farmer v. Brennan, 511 U.S. at 837).

Claims brought under Section 1983 must allege the personal involvement of each defendant. Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013). "Conclusory accusations regarding a defendant's personal involvement in the alleged violation, standing alone, are not sufficient." Brown v. Doe, 2014 WL 5461815, at *8 (S.D.N.Y. Oct. 28, 2014) (citation omitted), appeal dismissed (Feb. 17, 2015).

1. Officers Asquith and Blue

Defendants argue plaintiff's Eighth Amendment claim based on Officers Asquith's and Blue's failure to protect her in the van must be dismissed because plaintiff failed to allege these defendants were personally involved in any failure to provide for plaintiff's safety.

The Court agrees.

Officers Asquith and Blue were in the front seat of the van while plaintiff was in the back. Plaintiff alleges she fell and was injured while Officers Asquith and Blue were playing music too loudly and while Officer Asquith was driving the van on a dark highway at night. Even liberally construed, these facts do not plausibly allege Officers Asquith and Blue were personally involved in any violation of plaintiff's constitutional rights arising from plaintiff's injury in the van. Plaintiff has not alleged either officer in the front seat was aware plaintiff was switching seats in the back of the van. Nor has plaintiff alleged sufficient facts to support an inference Officer Asquith was driving recklessly or in deliberate disregard for plaintiff's safety.

Accordingly, plaintiff's complaint fails to allege Officers Asquith and Blue were personally involved in violating plaintiff's constitutional rights based on the failure to ensure her safety in the van.

2. Officer Waxter

Unlike Officers Asquith and Blue, Officer Waxter was personally involved because she was in the back of the van with plaintiff and instructed her to change seats, leading to plaintiff's injuries. However, even liberally construed, plaintiff's allegations fail to satisfy the objective and subjective prongs of an Eighth Amendment violation.

As to the objective element, there is no definitive test to determine when a condition is sufficiently serious. The Second Circuit has held "the failure to provide a seatbelt is not, in itself, sufficiently serious to constitute an Eighth Amendment violation." Jabbar v. Fischer, 683 F.3d 54, 58 (2d Cir. 2012) (quotations omitted). In Jabbar, a bus transporting the plaintiff made a forceful turn and he hit his head, knocking him unconscious. Id. at 56. In affirming the district court's dismissal of the plaintiff's claim, the Second Circuit held that a vehicle's lack of seatbelts, without more, is "reasonable." Id. at 58; see also Carrasquillo v. City of New York, 324 F. Supp. 2d at 436 ("Auto accidents do not, in and of themselves, give rise to federal causes of action.").

The case at hand is a closer call than Jabbar because here, in addition to plaintiff's not wearing a seatbelt, Officer Waxter allegedly ordered plaintiff to change seats. Construed liberally, plaintiff alleges Officer Waxter created a condition that posed a greater risk of harm to plaintiff than merely not having a seatbelt.

Nevertheless, having considered the application of Jabbar, the Court concludes, based on the allegations of the complaint, that Officer Waxter did not create a condition that posed a substantial or excessive risk of serious harm to plaintiff's safety. The magnitude of the increase in risk of injury by momentarily changing seats, compared with merely not wearing a seatbelt, is slight, and not unreasonable because it was based on Officer Waxter's need to access an inmate experiencing a seizure. See, e.g., Williams v. City of New York, 2005 WL 2862007, at *2 (holding the Eighth Amendment proscription against cruel and unusual punishment "does not cover vehicular accidents that expose a plaintiff to the risk of injury") (quoting Carrasquillo, 324 F. Supp. 2d at 437).

Moreover, even assuming plaintiff did adequately allege Officer Waxter created a condition that posed a substantial risk of serious harm, plaintiff has failed to allege Officer Waxter knew of and disregarded the risk in satisfaction of the subjective prong of the deliberate indifference test.

Plaintiff alleges Officer Waxter, in a moment of "chaos" (Compl. ¶ 2), "panicked," and directed plaintiff to move away from the inmate having a seizure. (Pl.'s Opp. at 1). Plaintiff's allegations do not support an inference Officer Waxter knew it would be dangerous for plaintiff to move away from the inmate having a seizure, and then disregarded that risk. Cf. Allah v. Goord, 405 F. Supp. 2d 265, 276 (S.D.N.Y. 2005) (holding subjective prong satisfied because defendant driver stopped short, injuring wheelchair-bound plaintiff, then, after repositioning the plaintiff, stopped short again, "in complete disregard for plaintiff's interests or safety"). At most, plaintiff has plausibly alleged Officer Waxter did not consider the risk to plaintiff's safety in ordering her to change seats because the officer panicked in a moment of chaos. Those allegations may give rise to a claim of negligence, but are not actionable under the Constitution. See White v. City of New York, 2011 WL 5873392, at *1 (S.D.N.Y. Nov. 22, 2011).

Accordingly, because plaintiff failed plausibly to allege that Officer Waxter created an excessive risk of harm to plaintiff's safety and consciously disregarded that risk, her Eighth Amendment claim based on her injury in the van is dismissed.

B. Failure to Provide Medical Treatment

After plaintiff was injured, she alleges defendants were deliberately indifferent to her serious medical needs. Defendants argue plaintiff failed to state an Eighth Amendment claim because she received treatment for her injuries later that day.

The Court agrees.

To assert a viable Eighth Amendment claim in the context of inadequate medical care, plaintiff must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). Similar to liability based on failure to provide safe conditions of confinement, this test has both an objective and a subjective component: plaintiff must plead facts showing (i) the alleged deprivation of medical care is "sufficiently serious," and (ii) the officials in question acted with a "sufficiently culpable state of mind." Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir. 2006).

To satisfy the objective component, a condition is sufficiently serious if it may cause "death, degeneration, or extreme pain," Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005) (quoting Hemmings v. Gorsczyk, 134 F.3d 104, 108 (2d Cir. 1998)), or if "the failure to treat [the] condition could result in further significant injury or the unnecessary and wanton infliction of pain." Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)).

To satisfy the subjective component, a plaintiff must allege the defendant had a mental state akin to recklessness, which "requires that the charged official act[ed] or fail[ed] to act while actually aware of a substantial risk that serious inmate harm will result." Salahuddin v. Goord, 467 F.3d at 280 (citing Farmer v. Brennan, 511 U.S. 825, 836-37 (1994)). For example, "a deliberate indifference claim can lie where prison officials deliberately ignore the medical recommendations of a prisoner's treating physicians." Johnson v. Wright, 412 F.3d at 404 (citing Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987)).

Here, plaintiff alleges defendants "refused to have [her] seen at Westchester Medical [Center]" even though her finger was bleeding. (Compl. ¶ 2). But plaintiff concedes Bedford Hills's medical staff treated her when she returned to Bedford Hills. Liberally construed, her allegations are that she should have been treated by the hospital's staff instead of by prison nurses, and her treatment was delayed because she was not treated at the hospital.

However, plaintiff fails to allege the prison medical staff's treatment was inadequate, that the delay in treatment led to a serious medical condition, or that defendants acted with the requisite deliberate indifference.

Plaintiff's preference to be treated by doctors at the Westchester Medical Center instead of the prison medical staff does not constitute a constitutional claim, especially when, as here, plaintiff does not allege the prison medical staff's treatment of her injuries was inadequate. See Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) ("It is well-established that mere disagreement over the proper treatment does not create a constitutional claim. So long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation.").

Similarly, the delay plaintiff faced before receiving treatment cannot form the basis of a constitutional claim. Under some circumstances, prolonged delays in treatment can support an inference of deliberate indifference. Hathaway v. Coughlin, 37 F.3d 63, 67 (2d Cir. 1994) (a jury could infer deliberate indifference based on a two-year delay); see also Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003) (a delay in treatment of "an otherwise insignificant wound" could conceivably create a substantial risk of injury if the wound became infected due to the delay). But plaintiff has not alleged any facts as to how the delay between the hospital and the prison created or worsened her medical conditions. Even liberally construed, the lapse in treatment here is "minor and inconsequential." Id.

More fundamentally, the complaint contains no allegations indicating any of the defendants were actually aware of a substantial risk plaintiff would experience harm if she waited to be seen by the prison medical staff, and then disregarded that risk.

Accordingly, plaintiff's claim based on defendants' failure to provide medical treatment is dismissed.

III. State Law Claims

Construed liberally, plaintiff's complaint arguably contains state law tort claims for negligence. Having dismissed plaintiff's federal claims, the Court declines to exercise supplemental jurisdiction over any state law claims in plaintiff's complaint pursuant to 28 U.S.C. § 1367(c)(3).

IV. Leave to Amend

The Court will, however allow plaintiff to amend her complaint with respect to her claim arising from defendants' alleged failure to provide for her safety in the van. District courts "should not dismiss [pro se complaints] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)).

Plaintiff is directed to state in her amended complaint (i) whether and how Officer Asquith was driving recklessly, causing plaintiff to fall into the door well; (ii) whether and how Officer Blue was involved in Officer Asquith's reckless driving; and (iii) whether and how Officer Waxter created a condition that posed a substantial or excessive risk to plaintiff's safety, and then disregarded that risk.

Plaintiff is reminded that any factual allegation in the amended complaint must be true to the best of her knowledge, information, and belief. See Fed. R. Civ. P. 11(b)(3). Because the amended complaint will completely replace the amended complaint, plaintiff should include in the amended complaint all information necessary to state a claim. Plaintiff is directed to complete the Amended Complaint form attached to this Opinion and Order.

Plaintiff is further directed to attach to her amended complaint any grievances she filed with respect to the incident in the van, as well as all evidence relating to her efforts to exhaust her administrative remedies prior to commencing this action.

Plaintiff is not granted leave to file an amended complaint with respect to her claims related to the alleged failure to treat her injuries. The complaint and plaintiff's opposition to defendants' motion to dismiss - even liberally construed - contain no allegations suggesting she has a valid claim that she has merely "inadequately or inartfully pleaded" and therefore should "be given a chance to reframe." Cuoco v. Moritsugu, 222 F.3d at 112. Thus, re-pleading plaintiff's failure to treat claim would be futile because plaintiff's claims suffer from substantive deficiencies that cannot be cured.

CONCLUSION

Defendants' motion to dismiss is GRANTED.

Plaintiff is granted leave to file an amended complaint, which must be filed by April 15, 2016, using the Amended Complaint form attached hereto. The completed Amended Complaint form must be mailed to the Pro Se Clerk at the United States Courthouse, 300 Quarropas Street, White Plains, New York 10601. If plaintiff does not file an amended complaint by that date, this case will be dismissed with prejudice.

The Clerk is instructed to terminate the motion. (Doc. #24).

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Dated: February 29, 2016

White Plains, NY

SO ORDERED:

/s/_________

Vincent L. Briccetti

United States District Judge

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