McMahon, J.

MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS THE COMPLAINT

:

Pro Se Plaintiff Milo Tyler, an inmate currently in custody of the New York City Department of Correction, brings this action pursuant to 42 U.S.C. § 1983, alleging that he was subjected to unconstitutional conditions of confinement while incarcerated at the Anna M. Kross Center (A.M.K.C.). Specifically, Plaintiff alleges that he was forced to walk three blocks from his housing unit to the main facility building (where he accessed various jail facilities) without a coat or jacket in extreme weather conditions. Plaintiff also alleges that the New York City Board of Correction's Minimum Standard requirements were violated when he was deprived of his daily hour of recreation because he chose not to go outside during his recreation period in cold weather without a jacket or coat.

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendants the City of New York, Warden Rose Argo ("Warden Argo"), and Officer Juanita Galloway ("Officer Galloway") moved to dismiss Plaintiff's Complaint on the grounds that: (1) Plaintiff has failed to allege a physical injury as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(e); (2) the Complaint fails to allege any unconstitutional condition of confinement, (3) Plaintiff fails to state a claim for municipal liability, and (4) Plaintiff has failed to exhaust the available administrative remedies for his claims, as required by the PLRA. 42 U.S.C. § 1997e(a).

The Defendants' motion is granted and the complaint is dismissed.

BACKGROUND

Plaintiff, who was a pretrial detainee when he filed his Complaint, alleges that, beginning sometime in the fall of 2013 and continuing through January 8, 2014 (the date the Complaint was filed), he was not provided with a jacket or coat when he walked from his housing unit to the main building at A.M.K.C. in bad weather - a distance of "at least 3 full New York City Blocks" - in order to use the law library, go to court, or access medical facilities, religious services, and the gym. Compl. ¶ II(D). Plaintiff alleges that temperatures at times were at or below freezing and that on occasion it was raining or snowing. Compl., Attachment #1, supplementing ¶ II(D) at 1. ("Attachment #1"). Plaintiff also alleges that he was sometimes forced to stand outside the entrance to the main building in extreme weather conditions for as long as twenty minutes without appropriate outerwear. Plaintiff alleges that Officer Galloway acted with deliberate indifference by not allowing detainees to stand inside the entrance to the main building, and instead requiring them to wait outside to be picked up by an escort officer. Id.

Plaintiff also alleges that he was deprived of outdoor recreation in violation of AMKC's minimum standards because he was denied access to recreation when he refused to go outside in cold weather without a jacket. Attachment #1 at 3. Plaintiff does not allege that he was denied recreation altogether; indeed, his allegations indicate he was permitted to go to the "gym." See Compl. ¶ II(D).

Plaintiff alleges that these things caused him "mental anguish, psychological and emotional distress." He does not allege that he suffered any physical injury as a result of his exposure to the cold or his decision to miss recreation. See Id. at ¶ III.

Plaintiff alleges that he filed an initial grievance at A.M.K.C. complaining about the lack of jacket or coat while traveling from his housing unit to the main building. Id. at ¶ IV(D). As of the time Plaintiff filed the Complaint, he alleges that he had "never received a response" and was "unaware of how to appeal a grievance [he] never received a response to." Id. at ¶ IV(E).

Plaintiff seeks five million dollars in compensatory damages for alleged emotional injuries, as well as five million dollars in punitive damages. Id. at ¶ V. The Complaint also seeks to "ensure that detainees on Rikers Island are allowed to keep their jackets/coats for them to move around outside in extreme and severe weather conditions," "for the Department of Corrections in A.M.K.C. to develop a better movement system for detainees in the West Housing Units, especially in the winter," and for "[Officer] Galloway to be relieved of her post at the West Main Building Gate." Id.

While Warden Agro's name appears in the caption, she is not mentioned in the body of the Complaint; there are no allegations concerning her conduct.

DISCUSSION

I. Legal Standard on a Motion to Dismiss

Pursuant to Fed. R. Civ. P. 12(b)(6), when considering a motion to dismiss a court must accept a complaint's factual allegations as true and must draw reasonable inferences in the plaintiff's favor. See Roth v. Jennings, 489 F.3d 499, 501 (2d Cir. 2007) (internal citation omitted). To withstand a motion to dismiss a complaint must assert "enough facts to state a claim for relief that is plausible on its face," which requires that the "plaintiff plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Detailed factual allegations" are not required, but a plaintiff must provide more than "an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (internal citations and quotation marks omitted).

It is well-established that complaints of pro se litigants must be liberally construed and interpreted to "raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)). Nevertheless, this liberal pleading standard does not excuse a pro se plaintiff from providing sufficient factual allegations that state a plausible claim. See Pandozy v. Segan, 518 F. Supp. 2d 550, 554 (S.D.N.Y. 2007) (internal citation omitted). Even a pro se plaintiff's complaint may be dismissed if the plaintiff fails to properly state a claim upon which relief can be granted. See People v. Fischer, No. 11 Civ. 2694, 2012 WL 1575302, at *3 (S.D.N.Y. May 3, 2012) (citing Praseuth v. Werbe, 99 F.3d 402, 402 (2d Cir. 1995)).

II. The Prison Litigation Reform Act Bars Plaintiff's Claims Because He Has Alleged No Physical Injury

Section 1997e(e) of the PLRA provides as follows: "No Federal civil action may be brought by a prisoner confined in a jail, prison or other correctional facility, for mental, or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). Courts have routinely dismissed prisoner civil rights suits seeking damages for constitutional violations where a prisoner alleges that he suffered only emotional and mental injuries. Cox v. Malone, 199 F. Supp. 2d 135, 139 (S.D.N.Y. 2002); see also Howard v. City of New York, No. 11 Civ. 5899, 2012 WL 5816976, at *5 (S.D.N.Y. Nov. 14, 2012). When the complaint fails to allege a physical injury, "[t]hat omission is fatal." Fincher v. City of New York, No. 09 Civ. 10318, 2010 WL 3719236, at *1 (S.D.N.Y. Sept. 20, 2010); see also, e.g., Greene v. Dep't of Corr., No. 10 Civ. 5344, 2012 WL 694031, at *3 (S.D.N.Y. Mar. 5, 2012) ("Cases asserting emotional harm, unaccompanied by a claim of physical harm, are routinely dismissed.").

Here, Plaintiff alleges no physical injury. See Compl. ¶ III. Instead, Plaintiff alleges that he suffered "emotional and psychological distress." Plaintiff does allege that he is entitled to damages for "pain and suffering," but he fails to connect that to any identifiable physical injury, as required by the PLRA.

Furthermore, even if Plaintiff's allegation of "pain and suffering" could be construed as suggesting that he suffered from some physical injury, Plaintiff has not alleged that this injury lasted for a significant period of time, had any lasting effects, or required medical attention. See Compl. Plaintiff stated that "he was not sent to medical for any injuries," Pl.'s Opp'n. Mot. To Dismiss, 1 ("Pl's Opp'n"), but does not allege that he was denied medical attention for any injuries. Accordingly, his pleading fails to meet the physical injury requirements of the PLRA. Dillion v. City of New York, No. 12 Civ. 7775, 2014 WL 658095, at *2 (S.D.N.Y. Feb. 19, 2014) (citing Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999); Jones v. H.H.C. Inc., No. 00 Civ. 6512, 2003 WL 1960045, at *5 (S.D.N.Y. Apr. 8, 2003)).

Ordinarily I would grant the motion to dismiss on this ground, but grant plaintiff leave to replead. Here, however, leave to replead would be futile because plaintiff's claim is barred for failure to exhaust administrative remedies.

III. Plaintiff has Failed to Exhaust His Available Administrative Remedies

Pursuant to the Prisoner Litigation Reform Act, 42 U.S.C. § 1997e(a), a prisoner must exhaust all administrative remedies before initiating suit on a federal claim. The Act states:

No action shall be brought with respect to prison conditions under section 1979 of the Revised Statutes of the United States (42 U.S.C. § 1983), 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.

The New York City Department of Correction has a well-established, multi-step grievance procedure, the Inmate Grievance and Request Program ("IGRP"), all levels of which must be exhausted for a prisoner to satisfy the exhaustion requirement. See Ramrattan v. Schriro, No. 11 Civ. 3749, 2013 WL 3009980, at *1-2 (S.D.N.Y. June 17, 2013). To exhaust administrative remedies, an inmate must first file a grievance with the Inmate Grievance Review Committee, which will informally address the grievance. See IGRP at § IV(D). If not satisfied with the informal resolution of the grievance, an inmate may request a formal hearing before the Committee. Id. at § IV(G)(5)(b). If not satisfied with the result of the hearing, an inmate can then appeal to the facility warden, followed by an appeal to the Central Office Review Committee, and ultimately an appeal to the New York City Board of Correction. Id. at §§ IV(I), (J); see also Ramrattan, 2013 WL 3009980, at *1-2. The IGRP also specifically requires a prisoner who receives no response to his grievance within a certain time period to move on to the next step of the grievance process. IGRP at § IV(D)(10)(a).

The Complaint alleges that Plaintiff filed an initial grievance as required by the IGRP. However, Plaintiff specifically alleges that he did not proceed with any additional steps in the grievance process - he did not request a hearing or take any appeals. See Compl. ¶ IV(E). Plaintiff alleges that he received no response to his initial grievance, and states that "[he is] unaware of how to appeal a grievance [he] never received a response to." Id.

Unfortunately for Plaintiff, his excuse is unsatisfactory. It is well settled that an inmate who receives no response to his grievance must continue with the next steps in the grievance process. Plaintiff's failure to take any further steps in the face of administrative silence constitutes a failure to exhaust his administrative remedies. Mamon v. New York Dept. of Corr., No. 10 Civ. 8055(NRB), 2012 WL 260287, at *4 (S.D.N.Y. Jan. 27, 2012); see also Cannon v. City of New York, No. 11 Civ. 8983(PAE)(JCF), 2013 WL 1234962, at *3-5 (S.D.N.Y. Jan. 29, 2013); Martin v. City of New York, No. 11 Civ. 600, 2012 WL 1392648, *5-7 (S.D.N.Y. Apr. 20, 2012). Indeed, "[i]t is well-settled . . . that 'even when an inmate files a grievance and receives no response, he must nevertheless properly exhaust all appeals before his grievance is considered exhausted.'" George v. Morrison-Warden, No. 06 Civ. 3188, 2007 WL 1686321, at *3 (S.D.N.Y. June 11, 2007) (quoting Bligen v. Griffen, No. 06 Civ. 4400, 2007 WL 430427, at *2 (S.D.N.Y. Feb. 8, 2007)) (emphasis supplied by the Court).

While exhaustion of administrative remedies is mandatory under the Prison Litigation Reform Act, "certain caveats apply." Collins, 438 F. Supp. 2d at 411 (internal citation omitted). The Second Circuit has developed a "three-part inquiry" to determine whether an inmate is excused from the otherwise non-waivable exhaustion requirement. Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004). The Court must consider: (1) whether the administrative remedies were available to the inmate; (2) whether defendants did not preserve the defense, or whether defendants' actions inhibited exhaustion thereby estopping defendants from raising the defense; and (3) whether special circumstances justify the inmate's failure to comply with the exhaustion requirement. Id. (internal citations omitted). Furthermore, a "good-faith effort to exhaust" all of the administrative requirements has been deemed an implicit factor in considering whether an inmate should be denied an opportunity to pursue his claim in federal court for failure to comply with administrative procedures. See Torres v. Carry, 672 F. Supp. 2d 338, 345 (S.D.N.Y. 2009).

Here, Plaintiff does not allege that he was prevented from filing a grievance by anyone in authority at AMKC. Nor does he allege that anyone prevented him from requesting a hearing or filing an appeal when his grievance went unaddressed. See Compl. ¶ IV. All plaintiff alleges by way of justification is that he was "unaware of how to appeal a grievance [he] never received a response to," Compl. ¶ IV(E), and that Defendants did not post the procedures of how to file a grievance in AMKC's facilities. Pl.'s Opp'n. at 4.

The fact that he filed a grievance indicates that administrative remedies were in fact available to him. Ignorance of the procedure is no excuse - especially here, where Plaintiff admits that he went to the Main Building in order to go to the law library, where he could have researched the IGRP to his heart's content. His claim that he did not know how to proceed does not mean that the grievance process was unavailable to him; "lack of knowledge or understanding of the process," without a plausible claim that Defendants kept him from acquiring information about the grievance process, neither renders administrative remedies "unavailable" to Plaintiff not excuses his failure to avail himself of them. Cannon, 2013 WL 1234962, at *4-5; Martin, 2012 WL 1392648, *5-7; but see, Walker v. Vargas, No. 11 Civ. 9034, 2013 WL 4792765, (S.D.N.Y. Aug 26, 2013).

Because plaintiff failed to exhaust his administrative remedies, it would be futile to grant him leave to amend so that he could allege physical injury (assuming he suffered from any).

IV. Plaintiff Fails to Plead a Claim for an Unconstitutional Condition of Confinement or Deliberate Indifference to a Sufficiently Serious Deprivation

Although Plaintiff's failure to exhaust his administrative remedies suffices to bar granting him leave to amend, there is yet another reason to conclude that leave to amend would be futile: on the facts alleged, Plaintiff fails to make out any constitutional violation.

I construe plaintiff's allegation that he was exposed to cold weather and wintry elements because he was not provided with a jacket or coat as a claim of an unconstitutional condition of confinement under the Due Process Clause of the Fourteenth Amendment. See e.g., Jennings v. Horn, No. 05 Civ. 9435, 2007 WL 2265574, at *4 (S.D.N.Y. Aug. 7, 2007). To allege a constitutional claim arising out of unconstitutional conditions of confinement, a prisoner must plead facts that would, if believed, give rise to a plausible inference of deliberate indifference to a serious deprivation. See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).

The court's assessment of the alleged violation "embodies both an objective and subjective prong." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). The objective prong "measures the severity of the deprivation," and requires it to be objectively and sufficiently serious. Id.; see also Farmer v. Brennan, 511 U.S. 825, 834 (1994). The subjective "deliberate indifference element requires a finding that the defendant acted with a sufficiently culpable state of mind . . . ." Arnold v. Westchester Cnty. Corr. Facility, No. 10 Civ. 1249, 2011 WL 3501897, at *4 (S.D.N.Y. July 18, 2011) (quoting Hathaway, 99 F.3d at 553). This requires a prison official to show "deliberate indifference to inmate health or safety." Farmer, 511 U.S. at 834. Under this standard, "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious bodily harm exists and he must also draw the inference." Id.

"Mere negligence" and ordinary lack of due care for a prisoner's interest or safety does not violate the Constitution. Id. at 835. Rather, an official's state of mind must amount to "the equivalent of criminal recklessness; namely, when the prison official 'knows of and disregards an excessive risk to inmate health or safety' . . . ." Hathaway, 99 F.3d at 553 (citing Farmer, 511 U.S. at 837).

Plaintiff's allegation that he was not provided a jacket or coat when he traveled from his housing unit to the main building falls far short of stating a constitutional violation.

Pursuant to the objective prong of the Hathaway test, "only extreme deprivations are sufficient to sustain a conditions-of-confinement claim." Hallett v. Davis, No. 12 Civ. 4646, 2012 WL 4378020, at *6 (S.D.N.Y. Sept. 25, 2012) (quoting Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999)) (internal quotation marks omitted). While the Constitution does not tolerate inhumane conditions of confinement, neither does it mandate that prisons be comfortable. See Farmer, 511 U.S. at 832 (citing Rhodes v. Chapman, 452 U.S. 337, 349 (1981)). To prevail on a conditions-of-confinement claim, an inmate must show that he was "denied the minimal civilized measure of life's necessities," or that he was exposed "to conditions that pose an unreasonable risk of serious damage to [his] future health." Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (quoting Rhodes, 452 U.S. at 346) (internal quotation marks omitted).

"The Second Circuit has held that proof that the inmate was subjected for a prolonged period to bitter cold is sufficient to raise a triable issue of fact as to the objective prong." Tafari v. McCarthy, 714 F. Supp. 2d 317, 358 (N.D.N.Y. 2010). In Gaston v. Coughlin, 249 F.3d 156, 165 (2d Cir. 2001), for example, the Court of Appeals held that an inmate's claim that he was subjected to near or well below freezing temperatures in his cell for a five-month period barred summary judgment in favor of defendants. Similarly, in Corselli v. Coughlin, 842 F.2d 23 (2d Cir. 1988), defendants were not entitled to summary judgment where the evidence demonstrated that the prisoner was subjected to temperatures near or well below freezing in his cell for three months.

However, where an inmate has not been subjected to "bitter cold" for a "prolonged period," a prisoner's claims fall short of constitutional violations. Trammell v. Keane, 338 F.3d 155, 164 (2d Cir. 2003). In Trammell, plaintiff alleged that he was kept virtually naked in his cell for about three weeks. Id. at 158-159. However, plaintiff did not allege that his holding cell was exposed to freezing temperatures or that it lacked adequate heat. Id. at 165. The Circuit deemed summary judgment in defendants' favor warranted because plaintiff failed to allege conditions that rose to the level of constitutional violations. Id.

In Tafari, 714 F. Supp. 2d at 356, the plaintiff alleged that prison officers sent him outside for an hour at a time during recreation in sub-zero temperature after showers, which caused his dreadlocks to freeze and gave him head colds and influenza. The plaintiff also alleged that he was denied underclothes and other items of winter clothing because the New York State Department of Correctional Services stopped issuing winter clothing items to inmates. Id. The Tafari court dismissed the case, holding: "Although this hour [during which Plaintiff was outside] was likely very uncomfortable and was repeated often, the evidence does not show that Plaintiff was ever exposed to the bitter cold temperatures for the kinds of 'prolonged' periods described in Second Circuit precedent." Id. at 358; see also Ford v. Jones, No. 04-41268, 2005 WL 2445925, at *317 (5th Cir. 2005) (holding no constitutional violation where an inmate was forced to remain outside in below 45 degree weather, without a jacket, for three hours after outdoor recreation).

Here, Plaintiff's facts and allegations are analogous to, albeit less severe than, those deemed insufficient to make out a constitutional violation in Tafari. Plaintiff alleges that he was forced to walk a distance of three city blocks without a coat in cold and/or wet weather whenever he had to go to the main building, and sometimes stand in cold or extreme weather condition ns for up to 20 minutes once he got there. Compl. ¶ II(D). Plaintiff does not allege that this exposure posed an unreasonable risk of serious damage to his future health - indeed, as discussed above, he fails to allege that it caused him any physical harm. See Compl. ¶ III. The amount of exposure to which Plaintiff was allegedly subject - a few minutes for each trip between his cell block and the main building, plus the occasional few minutes of standing outside - is less than, or at most equivalent to, what the Tafari court concluded was not sufficiently serious to be unconstitutional. Furthermore, the Tafari court dismissed the plaintiff's claims despite his allegation that his hair froze and that exposure resulted in head colds and influenza. Here, Plaintiff has alleged no illness, no physical symptoms at all that resulted from his exposure to cold temperatures for short periods on occasion.

Similarly, Plaintiff's assertion that he could not go outside during recreation periods due to the lack of a coat does not rise to the level needed to plead an objectively serious, and therefore unconstitutional, harm, as required by Hathaway. "Sporadic infringement of the right to exercise does not rise to the level of a constitutional deprivation." Dillion v. City of New York, No. 12 Civ. 7775, 2014 WL 658095, at *4 (S.D.N.Y. Feb. 19, 2014); see also Davidson v. Coughlin, 968 F. Supp. 121, 131 (S.D.N.Y. 1997) (depriving inmate of outdoor exercise for 14 consecutive days did not violate the constitution). If a prisoner who chooses to spend time outdoors in the cold during recreation periods has no claim for unconstitutional exposure to cold, because he could stay warm by staying inside, see Koehl v. Bernstein, 10 Civ. 3808, 2100 WL 2436817, at *18 (S.D.N.Y. June 17, 2011), then a prisoner like Plaintiff - who affirmatively pleads that he was allowed to recreate indoors on cold days (after all, plaintiff complains about having to walk through the cold to get to the gym!) - cannot complain of a constitutional violation when he declines to go outside without a coat.

In short, the facts pleaded by Plaintiff - while undoubtedly establishing that he was placed in an uncomfortable position from time to time - do not give rise to a plausible inference that he was exposed to bitter cold temperatures for prolonged periods of time, as required to make out a constitutional violation in this Circuit. He thus fails to satisfy the "objective" prong of the Hathaway test. The facts alleged by Plaintiff, assuming them to be true, do not support a finding that he sustained, or was at risk of sustaining, any objectively serious injury. Therefore, granting Plaintiff leave to amend would be futile.

V. Plaintiff has Failed to State a Claim for Municipal Liability Against the City of New York

Finally, the complaint fails to state a cognizable §1983 claim for municipal liability.

A municipality cannot be liable for alleged constitutional violations unless the violations are the result of an official policy, custom, or practice of the municipality. Monell v. New York City Dep't of Soc. Services, 436 U.S. 658, 691-94 (1978). A municipality also cannot be held liable for the alleged unconstitutional acts of its employees on the basis of respondeat superior. Montgomery v. City of New York, No. 09 Civ. 06145, 2011 WL 1770849, at *2 (S.D.N.Y. May 9, 2011) (citing Monell, 436 U.S. at 691); see also Tenenbaum v. Williams, 193 F.3d 581, 597 (2d Cir. 1999).

Plaintiff does not plead the existence of any policies, customs, or practices of the City of New York requiring correctional officials to refuse to give inmates cold weather gear or to routinely expose them to excessive cold. See Compl. Plaintiff also does not claim that any alleged wrongdoing was due to actions by individuals whose "acts may fairly be said to represent official policy." See Compl.; see also Montgomery, 2011 WL 1770849, at *2 (quoting Monell, 436 U.S. at 694). He does not even complain that the Warden had anything to do with his situation; he lays the blame squarely at the feet of Officer Galloway.

Because Plaintiff fails to plead sufficient facts to establish a claim for municipal liability, all claims against the City of New York must be dismissed.

CONCLUSION

For the foregoing reasons, Defendants' motion to dismiss the complaint is GRANTED and the complaint is dismissed with prejudice and without leave to replead. The Clerk of Court is directed to remove the motion at Docket No. 12 from the court's list of open motions, and to close the file. Dated: October 10, 2014

/s/_________

U.S.D.J. BY ECF TO COUNSEL BY FIRST CLASS MAIL TO:

Milo Tyler, Plaintiff Pro Se

#825-13-00262

Anna M. Kross Center

18-18 Hazen Street

East Elmhurst, NY 11370