Opinion
1:21-cv-09049 (AT) (SDA)
11-02-2022
Alejandro Mejia, Plaintiff, v. Warden Carter et al., Defendants.
TO THE HONORABLE ANALISA TORRES, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
STEWART D. AARON, United States Magistrate Judge.
INTRODUCTION
During all times relevant to this action, Plaintiff Alejandro Mejia (“Plaintiff” or “Mejia”) was a pretrial detainee incarcerated at the Vernon C. Bain Center (“VCBC”) at Rikers Island. (See 11/1/21 Order, ECF No. 1, at 1; Am. Compl., ECF No. 13, at 2.) In his Amended Complaint, he alleges claims under 42 U.S.C. § 1983 against four employees of the New York City Department of Correction (“DOC”), namely, Defendants Warden Carter (“Carter”), Captain Guerra (“Guerra”), Captain Horton (“Horton”) and Captain John Doe (“John Doe”) (collectively, the “Defendants”). (See Am. Compl. at 1-2.) 1
Mejia later was transferred to New York City's Otis Bantum Correctional Center (see 3/30/22 Order, ECF No. 14, at 2), before he was transferred back to VCBC. (See 5/5/22 Order, ECF No. 17.) On October 3, 2022, Mejia was transferred to the New York State prison system (see NYC Dep't of Corr. Inmate Lookup Service, (https://a073-ils-web.nyc.gov/inmatelookup/pages/home/home.jsf)), and currently is incarcerated at the Franklin Correctional Facility. (See NYS Dep't of Corr. and Comm. Supervision Incarcerated Lookup, https://nysdoccslookup.doccs.ny.gov/). The Clerk of Court is respectfully requested to update Mejia's address on the ECF docket.
Presently before the Court is Defendants' motion, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the Amended Complaint for failure to state a claim. (See Defs.' Not. of Mot., ECF No. 18.) For the reasons set forth below, I respectfully recommend that Defendants' motion be GRANTED.
For purposes of this motion, the Court accepts Plaintiff's allegations as true and draws all reasonable inferences in his favor. See City of Providence v. BATS Glob. Mkts., Inc., 878 F.3d 36, 50 (2d Cir. 2017).
The Amended Complaint allegations concern events that occurred during a two-to-three-day period commencing on October 5, 2021. (See Am. Comp. at 4-5.) The Amended Complaint alleges that detainees assigned to Housing Unit 3-AA at VCBC (including Mejia) were deprived of food, water and “running toilets” for 7 to 8 hours, and were deprived of toilet paper, soap and toothbrushes for two to three days. (See id.) As a result, the detainees were hungry and fatigued, and “robbed of proper nutrition.” (Id.) In addition, they suffered nausea and headaches from becoming dehydrated and suffered psychological harm. (Id.)
The Amended Complaint alleges that the relevant events commenced on October 5, 2021 and that they persisted for “2-3 days.” (See Am. Compl. at 4-5.) In addition, Plaintiff's alleges in his Amended Complaint that his pleading was delivered to prison officials on October 7, 2021. (See id. at 6.)
PROCEDURAL HISTORY
On October 19, 2021, Michael J. Lee, who then was detained at VCBC, filed a pro se Complaint in this Court against VCBC prison officials Carter, Guerra, Horton and John Doe asserting conditions-of-confinement claims and seeking money damages. (See Lee v. Carter, No. 21-CV-08629, Compl., ECF No. 1.) The Lee Complaint included the names of 25 other detainees housed in unit # 3-AA in VCBC, including Mejia. (See id. at 1 & Ex. A.) On November 1, 2021, Chief 2 Judge Swain severed the claims of each VCBC detainee pursuant to Federal Rule of Civil Procedure 21 (see 11/1/21 Order at 5-6), and the ECF docket reflects that Mejia's action was reassigned to Judge Torres on December 7, 2021.
On December 8, 2021, Judge Torres entered an Order requesting that Defendants Carter, Horton and Guerra waive service of summons, and directing the New York City Law Department (the “Law Department”) to provide to Plaintiff and the Court the identity and badge number of the John Doe Defendants. (See 12/8/21 Order of Service, ECF No. 7.) On December 8, 2021, Judge Torres also referred this action to me for general pretrial purposes. (Order of Ref., ECF No. 9.)
On February 7, 2022, the Law Department informed Mejia and the Court of the names and badge numbers of the captains who supervised VCBC's intake procedures on October 5, 2021, as well as the times that they worked. (Response to Valentin Order, ECF No. 11-1.) On February 8, 2022, the undersigned entered an Order requiring Mejia to file an amended pleading naming any newly identified individual as a defendant no later than March 14, 2022. (See 2/8/22 Order, ECF No. 12.)
On February 8, 2022, Mejia filed an Amended Complaint that appears to be nearly identical to his initial Complaint. (Compare Compl., ECF No. 3, with Am. Compl.) Most notably, the Amended Complaint does not list any newly identified defendant in place of the John Doe Defendant, as the 2/8/22 Order required. (See Am. Compl.) On March 30, 2022, the undersigned entered an Order extending Mejia's deadline to file an amended pleading to April 27, 2022, and stating that, if he failed to comply with this directive, the Court would proceed with the Amended Complaint as the operative pleading. (See 3/30/22 Order at 1.) In addition, the undersigned 3 warned Mejia that failure to name the John Doe Defendant could result in a recommendation to the District Judge that his claims against the John Doe Defendant be dismissed. (See id. at 1-2.)
Mejia thereafter did not amend the pleading as directed by the Court. Thus, by Order dated May 5, 2022, the Court deemed the Amended Complaint to be the operative pleading. (See 5/5/22 Order.) The May 5 Order directed Defendants to respond to the Amended Complaint by June 6, 2022. (See id.)
On June 6, 2022, Defendants filed the motion to dismiss that is now before the Court. (See Defs.' Not. of Mot.) On June 8, 2022, Judge Torres referred Defendants' motion to me for a report and recommendation. (Am. Order of Ref., ECF No. 21.) On June 9, 2022, the Court set July 21, 2022 as the deadline for Mejia to file his opposition to Defendants' motion. (6/9/22 Order, ECF No. 22.) After Mejia failed to file any opposition, the Court entered an Order, dated July 28, 2022, providing that, Mejia shall file his opposition to Defendants' motion to dismiss no later than August 29, 2022 and that his failure to do so would result in the Court deciding the motion on Defendants' motion papers only. (See 7/28/22 Order, ECF No. 28.) To date, Mejia has not filed any opposition to Defendants' motion.
MOTION TO DISMISS LEGAL STANDARDS
To survive a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim is facially plausible if the complaint contains ‘factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Nguyen v. FXCM Inc., 364 F.Supp.3d 227, 4 239 (S.D.N.Y. 2019). The Court “must accept as true all of the allegations contained in a complaint[,]” but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted); see also Nguyen 364 F.Supp.3d at 239 (“The Court need not accept as true, ‘legal conclusions, deductions, or opinions couched as factual allegations.'”) (quoting In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007)).
Where, as here, a plaintiff is proceeding pro se, the Court must “construe his complaint liberally and interpret it ‘to raise the strongest arguments that it suggests.'” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (alteration omitted) (quoting Harris v. City of N.Y., 607 F.3d 18, 24 (2d Cir. 2010)). “Accordingly, courts apply a more flexible standard when evaluating the sufficiency of a pro se litigant's complaint than when reviewing a complaint submitted by counsel.” Stokes v. de Blasio, No. 17-CV-07890 (JGK), 2019 WL 132279, at *2 (S.D.N.Y. Jan. 8, 2019) (alteration omitted). “This liberal pleading standard, however, does not excuse a pro se plaintiff from providing sufficient factual allegations that state a plausible claim.” Id. (internal quotation marks and alteration omitted).
DISCUSSION
I. Failure To Exhaust Administrative Remedies
Defendants argue Plaintiff's Amended Complaint should be dismissed because it is apparent from the face of the Amended Complaint that he failed to exhaust his administrative remedies as provided by the Prison Litigation Reform Act (“PLRA”). (See Defs.' Mem., ECF No. 19, at 5-11.) The Court agrees. 5
The PLRA states “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This action falls within the purview of this provision as the Supreme Court has established “[t]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes.” Porter v. Nussle, 534 U.S. 516, 532 (2002); see also 18 U.S.C. § 3626(g)(2) (defining the term “civil action with respect to prison conditions” to mean “any civil proceedings arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison.”).
“Although a plaintiff need not specifically plead exhaustion to survive a motion to dismiss, a complaint may be dismissed for failure to exhaust administrative remedies if the failure is clear from the face of the complaint.” Gregory v. Department of Correction of New York City, No. 13-CV-04289 (AT), 2014 WL 3876612, at *2 (S.D.N.Y. July 16, 2014) (citing Roland v. Smith, 907 F.Supp.2d 385, 388 (S.D.N.Y. 2012)); see also Hickman v. City of New York, No. 20-CV-04699 (RA) (OTW), 2021 WL 3604786, at *2 (S.D.N.Y. Aug. 12, 2021) (“courts within this District routinely grant motions to dismiss where a plaintiff's non-exhaustion is clear from the face of the complaint.”) (collecting cases).
The procedure for exhaustion is not defined by the PLRA, but rather by the rules of the facility in which the inmate-plaintiff is incarcerated. See Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009). “At Rikers Island, grievance procedures are governed by the Inmate Grievance and Request Program (‘IGRP').” Hickman, 2021 WL 3604786 at *3. Courts in this Circuit routinely take 6 judicial notice of the IGRP. See id. “The IGRP applies to ‘[a]ny inmate who is directly and personally affected by an issue, condition, practice, service, or lack of an accommodation with regard to any issue that may arise in connection with their incarceration or action relating to their confinement.'” Massey v. City of New York, No. 20-CV-05665 (GBD) (DF), 2021 WL 4943564, at *7 (S.D.N.Y. Aug. 30, 2021) (alteration in original).
The version of the IGRP, effective as of December 10, 2018, requires the following steps: First, the aggrieved person may submit a grievance to the Office of Constituent and Grievance Services (“OCGS”). N.Y.C. Dep't of Corr., Directive 3376R-A at § V (December 10, 2018), https://www1.nyc.gov/assets/doc/downloads/directives/Directive 3376R-A.pdf. The Grievance Coordinator must propose a resolution within seven business days. Id. at § VI.A.1. Second, if the aggrieved person is not satisfied with OCGS's proposed resolution, the aggrieved person may appeal to the facility's Commanding Officer. Id. at § VI.A.6.ii. OCGS must forward the appeal to the Commanding Officer within one business day, and the Commanding Officer must render a disposition within five business days of receiving it. Id. at § VII.A, B. Third, if the aggrieved person is not satisfied with the Commanding Officer's disposition, the aggrieved person may appeal to the facility's Division Chief within two days. Id. at § VII.D. OCGS must forward the appeal to the Division Chief within one business day, and the Division Chief must render a disposition within five business days of receiving it. Id. at § VIII.A, B. Fourth, if the aggrieved person is not satisfied with the Division Chief's disposition, the aggrieved person may appeal to the Central Office Review Committee (“CORC”) within two days. Id. at §§ VIII.B, IX. OCGS must forward the appeal to the Director of Constituent and Grievance Services within one business day, and the CORC generally must render a disposition within five business days of receiving it. Id. at § IX.B, D-F. 7
“[T]o satisfy the exhaustion requirement, an inmate must use all available administrative mechanisms, including appeals, ‘through the highest level for each claim.'” Ford v. Aramark, No. 18-CV-02696 (NSR), 2020 WL 377882, at *4 (S.D.N.Y. Jan. 23, 2020).
In the present case, it is apparent that Mejia did not exhaust administrative remedies given the duration of the exhaustion process and the time between the events alleged and the filing of the Complaint. The Complaint and Amended Complaint both allege that the incident at issue commenced on October 5, 2021. (See Compl. at 4; Am. Compl. at 4.) The Complaint states that it was delivered to jail officials on October 12, 2021. (See Compl. at 7.) The Amended Complaint lists the delivery as having been made five days earlier, i.e., on October 7, 2011. (See Am. Compl. at 6.) The Complaint was received by the Court on October 19 or 20, 2021. (See Lee v. Carter, No. 21-CV-08629, Compl. at 1.) Thus, only 14 or 15 days elapsed between the incident and the filing of the Complaint. Even assuming that Mejia filed a grievance the same day as the incident and immediately appealed every adverse decision, he could not have exhausted his appeals. The facility was entitled to take 25 days or more to resolve all levels of appeal.
The Lee ECF docket reflects that the Complaint in that action was filed on October 19, 2021, but the Complaint bears a file stamp of having been received by the Pro Se Office on October 20, 2021. (See Lee v. Carter, No. 21-CV-08629, Compl. at 1.)
Courts in this district “have dismissed claims as a matter of course because it would have been temporally impossible for the plaintiffs to have exhausted their administrative remedies before filing the complaints,” where “the period between the date of the alleged incident and the filing of the complaint was 21 or fewer days.” Miller v. Annucci, No. 17-CV-04698 (KMK), 2019 WL 4688539, at *12 (S.D.N.Y. Sept. 26, 2019) (collecting cases). Accordingly, the Amended Complaint should be dismissed for failure to exhaust administrative remedies under the PLRA. 8
In some cases, before dismissing their cases, courts have permitted pro se detainees similarly situated to Mejia, an opportunity to make a submission to the Court alleging any facts showing that the IGRP grievance process was de facto unavailable to him, such that their failure to exhaust should be excused. See, e.g., Thompson v. Carter, No. 21-CV-08982 (LGS), 2022 WL 2533112, at *3 (S.D.N.Y. July 7, 2022). Such an approach is not necessary in this case since it should be dismissed on the merits, as explained in Section II, infra.
II. No Constitutional Violation
Defendants also argue that Mejia's Amended Complaint fails to allege facts that rise to the level of a constitutional violation. (See Defs.' Mem. at 11-16.) The Court agrees.
To state a claim under § 1983, a plaintiff “must allege that (1) defendants are state actors or acted under color of state law at the time of the challenged action, and (2) the challenged action deprived him of a right secured by the Constitution or federal law.” Dawkins v. Copeland, No. 17-CV-09926 (ER), 2020 WL 1529161, at *6 (S.D.N.Y. Mar. 31, 2020) (citing Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)). “Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere.” Id. (quoting Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993)).
“A pretrial detainee's claims of unconstitutional conditions of confinement are governed by the Due Process Clause of the Fourteenth Amendment[.]” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). “A pretrial detainee may establish a § 1983 claim for allegedly unconstitutional conditions of confinement by showing that the [defendants] acted with deliberate indifference to the challenged conditions.” Id. “This means that a pretrial detainee must satisfy two prongs to prove a claim, an ‘objective prong' showing that the challenged conditions were sufficiently 9 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 officer acted with at least deliberate indifference to the challenged conditions.” Id.
“Because society does not expect or intend prison conditions to be comfortable, only extreme deprivations are sufficient to sustain a ‘conditions-of-confinement' claim.” Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999) (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)). Thus, to satisfy the objective prong, the conditions must have “pos[ed] an unreasonable risk of serious damage to [Mejia's] health,” Reid v. City of New York, No. 20-CV-00644 (GBD) (JLC), 2022 WL 1164524, at *6 (S.D.N.Y. Apr. 20, 2022), report and recommendation adopted, 2022 WL 2340450 (S.D.N.Y. June 29, 2022), or have been a deprivation of the “minimal civilized measure of life's necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Ultimately, “to establish the objective element . . . 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 Amended Complaint does not plausibly allege that the conditions at VCBC posed “an unreasonable risk of serious damage to his health.” See Reid, 2022 WL 1164524, at *6. Further, as explained below, the Court finds that Mejia was not deprived of the “minimal civilized measure of life's necessities.” See Rhodes, 452 U.S. at 347.
The “objective prong” analysis is the same under both the Eighth and Fourteenth Amendments. Reid, 2022 WL 1164524, at *6.
The Amended Complaint alleges that the detainees were deprived of food, water and “running toilets” for seven to eight hours, and were deprived of toilet paper, soap and toothbrushes for two to three days. (See Am. Compl. at 4-5.) The deprivation of food and water 10 for a seven to eight-hour period, as Mejia alleges, falls short of a constitutional violation. While “the precise length of a ‘significant deprivation' is undefined,” Simmons v. Kelly, No. 06-CV-06183 (RJS), 2009 WL 857410, at *8 (S.D.N.Y. Mar. 31, 2009), courts have held that being without food and water for seven or eight hours does not constitute a due process violation. See Porter v. Bunch, No. 16-CV-05935 (KMK), 2019 WL 1428431, at *6 (S.D.N.Y. Mar. 29, 2019) (being without water for eight hours not clear deprivation of “the minimal civilized measure of life's necessities”); Livigni v. Ortega, No. 15-CV-09454 (CM), 2016 WL 6143351, at *3 (S.D.N.Y. Oct. 19, 2016) (plaintiff being locked in cold transport bus for seven hours without access to water did not objectively “pose an unreasonable risk of serious damage to his health”).
It is not clear from the Amended Complaint how the 25 listed detainees were denied “running toilets” for seven to eight hours. (See Am. Compl. at 5.) In any event, a temporary deprivation of a working toilet is not sufficient to meet the objective prong. See, e.g., Odom v. Keane, 95-CV-09941, 1997 WL 576088 (S.D.N.Y. Sept. 15, 1997) (Sotomayor, J.) (no objective injury where plaintiff's toilet did not function for a ten-hour period between 9 p.m. and 7 a.m.); see also Harvin v. Chapdelaine, No. 16-CV-01616 (VAB), 2017 WL 3725611, at *11 (D. Conn. Aug. 29, 2017) (“District courts in the Second Circuit have consistently held that temporary deprivations of toilet use that do not result in serious physical harm or contamination do not rise to the level of Eighth Amendment or other constitutional violations.”) (citing cases).
Similarly, with respect to Mejia's being without toiletries for a few days, “courts [in this Circuit] are extremely reluctant to find constitutional violations based on temporary deprivations of personal hygiene and grooming items.” Dillon v. City of New York, No. 12-CV-07113, 2013 WL 6978959 (LAP), at *3 (S.D.N.Y. Nov. 18, 2013). And the two to three-day period that Mejia alleges he was without toiletries is shorter than other periods that courts have found insufficient to rise to a constitutional level. See Beauvoir v. Falco, 345 F.Supp.3d 350, 373-74 (S.D.N.Y. 2018) (finding deprivation of toiletries, such as a toothbrush and toilet paper, for four to five days did 11 not satisfy the objective test); see also Trammell v. Keane, 338 F.3d 155, 165 (2d Cir. 2003) (deprivation of toiletries for seventeen days did not rise to the level a constitutional violation).
In sum, Mejia's temporary deprivations do not amount to a denial of the minimal civilized measure of life's necessities, and therefore do not give rise to a constitutional violation. Having failed to satisfy even the objective prong, Mejia has failed to state a claim for unconstitutional conditions of confinement.
Mejia's failure to file an amended pleading naming a new defendant in place of the John Doe Defendant is an independent basis for dismissing the claims against the John Doe Defendant. See Dellutri v. Doe, No. 11-CV-04396 (GBD) (GWG), 2012 WL 4714764, at *1 (S.D.N.Y. Oct. 2, 2012) (dismissing without prejudice for failure to comply with order to amend complaint to name Doe defendants and failing to serve them in accordance with Federal Rule of Civil Procedure 4(m)).
CONCLUSION
For these reasons, I respectfully recommend that Defendants' motion to dismiss be GRANTED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party 12 may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Torres.
THE FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). 13