Opinion
20-CV-644 (GBD) (JLC)
04-20-2022
CEDRIC REID, Plaintiff, v. THE CITY OF NEW YORK, et al., Defendants.
REPORT &: RECOMMENDATION
JAMES L. COTT, UNITED STATES MAGISTRATE JUDGE.
To the Honorable George B. Daniels, United States District Judge:
Cedric Reid, proceeding pro se, brings this action against the City of New York and the New York City Health and Hospitals Corporation (collectively, “City Defendants”) under 42 U.S.C. § 1983 for alleged violations of his constitutional rights to humane conditions of confinement and adequate medical treatment. Reid also brings this action against seven officials employed by the New York State Commission of Correction and Department of Corrections and Community Supervision officials (collectively, “State Defendants”).
The City and State Defendants both moved to dismiss Reid's original complaint. In a Report & Recommendation, I recommended that Reid's complaint be dismissed in its entirety, but that Reid be given an opportunity to amend his complaint. The Report & Recommendation was subsequently adopted.
Reid then filed a 35-page Amended Complaint, asserting five claims that span several years and that arise from events that took place in both City and State correctional facilities. His first two claims stem from his time in City custody, from September 2016 to May 2018, and his remaining three claims arise from events that occurred since May 2018, during which time he has been in State custody. The City Defendants now move to dismiss Reid's Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and the State Defendants move to dismiss the Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons which follow, I recommend that both motions be granted.
I. BACKGROUND
The Court assumes familiarity with the facts underlying this action (and its prior Report and Recommendation), but nevertheless sets forth a brief summary based on the Amended Complaint and the parties' motion papers.
A. Factual Background
The following facts are taken from Reid's Amended Complaint and are accepted as true for purposes of the pending motions. Smolen v. Wesley, No. 16-CV-2417 (KMK), 2019 WL 4727311, at *4 (S.D.N.Y. Sept. 25, 2019) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Because Reid is proceeding pro se, the Court also considers allegations made for the first time in his opposition papers. See, e.g., Saudagar v. Walgreens Co., No. 18-CV-427 (KPF), 2019 WL 498349, at *1 n.1 (S.D.N.Y. Feb. 8, 2019) (“A district court deciding a motion to dismiss may consider factual allegations made by a pro se party in his papers opposing the motion.” (quoting Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013)).
Reid's Amended Complaint asserts claims against the following City Defendants: the City of New York and the New York City Health and Hospitals Corporation (“HHC”). Amended Complaint (“Amended Compl.”), Dkt. No. 89, at 2; see also City Defendants' Memorandum of Law in Support of Motion to Dismiss (“City Def. Mem.”), Dkt. No. 93, at 1. Reid has also sued the following seven State Defendants: Allen Riley, Chairman of the New York State Commission of Correction (“SCOC”); Anthony J. Annucci, the Acting Commissioner of the New York State Department of Corrections and Community Supervision (“DOCCS”); Osbourne A. McKay, the DOCCS Deputy Commissioner of Correctional Industries, Compliance Standards and Diversity; Robert Morton, the former DOCCS Superintendent of Downstate Correctional Facility; Michael Capra, the DOCCS Superintendent of Sing Sing Correctional Facility; Razia Ferdous, a DOCCS Correctional Physician at Sing Sing Correctional Facility; and V. Monroe, a DOCCS Nurse Practitioner.
Reid's original complaint also named New York City Department of Corrections Officer Nieema Everett as a defendant in this action. Complaint, Dkt. No. 2, ¶ 4C. On February 22, 2021, Everett filed an answer in this action. Dkt. No. 59. Reid's Amended Complaint does not name Everett as a defendant, but in their motion papers, the City Defendants appear to assume that Everett is still a defendant in this case. City Def. Mem. at 2 n.2. However, since Reid did not name Everett in the Amended Complaint, the claims against her should be deemed abandoned.
From September 16, 2016 to October 30, 2017, Reid was a pretrial detainee at the Eric M. Taylor Center (“EMTC”) on Rikers Island. Amended Compl., ¶¶ 1A, 1B, 2B, 2C. Reid alleges that during his time as a pretrial detainee and then following his conviction on October 31, 2017, the City Defendants and then the State Defendants provided inhumane conditions of confinement and exhibited deliberate indifference to his medical needs. Amended Compl. ¶¶ 1A-4C. These allegations are summarized in turn.
Reid's Amended Complaint does not clearly state the date on which he was convicted. See Amended Compl. ¶ 2C. However, because Reid is pro se, the Court may look to other materials outside the Amended Complaint, such as Reid's opposition papers to the previous motion to dismiss, to ascertain that he was convicted on October 31, 2017. Plaintiff's Memorandum of Law in Opposition to City Defendants' Motion to Dismiss (“Pl. Opp. City Def.”), Dkt. No. 53-1, at 9; see, e.g., Girard v. Collao, No. 18-CV-2026 (NSR), 2022 WL 409098, at *1 n.1 (S.D.N.Y. Feb. 9, 2022) (“While a court generally may not look outside the pleadings when receiving a Rule 12(b)(6) motion to dismiss . . . the mandate to read the papers of pro se litigants generously makes it appropriate to consider plaintiff's additional materials ....”) (internal quotations omitted).
1. Exposure to Asbestos
First, Reid alleges that approximately every day from September 23, 2016 through March 24, 2017, he was required to travel through a corridor infested with asbestos in order to access medication, visit the commissary, be transferred to court proceedings, be seen for sick calls, and access other institutional programs and services. Amended Compl. ¶ 1C. On occasion, while Reid was en route to these services and programs, the facility's alarm would ring, and the escorting officer would instruct Reid to “place [his] hands on the wall.” Id. Reid alleges that the asbestos-covered pipes near the wall were “no more than a foot away” from his face, and that he and other inmates would keep their hands on the wall for 10-15 minutes while waiting for the alarm to clear. Id. Reid does not allege how frequently the alarm rang while he was traveling through the lower corridor or how often he had to keep his hands on the wall.
On December 22, 2016, Reid submitted a grievance regarding his exposure to asbestos. Amended Compl. Ex. A. On January 4, 2017, the Grievance Supervisor responded to Reid's submission and stated that the Environmental Health Officer Captain had “no knowledge of any Asbestos inside of EMTC.” Id. However, from December 16, 2016 to December 18, 2016, the Department of Correction (“DOC”) allegedly conducted Phase 1 of an “Asbestos Abatement Project” to remove asbestos from EMTC's basement corridor. Amended Compl. ¶ 1C; Ex. B. Reid alleges that there were further asbestos abatement projects that followed Phase 1, but provides no additional facts about these projects. Id. at ¶ 1C. Reid alleges that he has experienced lung inflammation as a result of his exposure to asbestos. Amended Compl. ¶ IV; Ex. U.
2. Premature Release from HHC's Medical Care
Reid alleges that on the morning of May 14, 2018, he was prematurely transferred from DOC's custody to a New York State correctional facility. Amended Compl. ¶ 2C. At the time of his transfer, Reid was receiving ongoing treatment for a rotator cuff injury and was scheduled to receive a total of 15 physical therapy sessions. Id. Reid's sixth physical therapy session was scheduled for May 24, 2018. Id. Reid alleges that the City Defendants should have placed him on a “medical hold” to ensure that this medical care was uninterrupted. Id. Reid further alleges that as a result of his premature release from HHC's medical care, his arm does not move properly. Amended Compl. ¶ IV.
3. Inadequate Ventilation and Exposure to Secondhand Smoke
a. Downstate Correctional Facility
Reid alleges that he is a non-smoker with serious preexisting respiratory conditions: chronic obstructive pulmonary disease (“COPD”) and asthma. Amended Compl. ¶ 3C. From May 2018 onwards (following his transfer to the New York State-run Downstate Correctional Facility), Reid alleges that he was exposed to second-hand tobacco smoke (commonly referred to as environmental tobacco smoke or “ETS”). Id. at ¶ 3C(i). Reid alleges that other inmates smoked “wicks” or “rollies” (rolled cigarettes made from either toilet paper or rolling paper). Id. at ¶ 3C(iii). The smoke from the wicks and rollies, coupled with the high indoor temperature, would “regularly” give Reid headaches. Id. at ¶ 3C(i). Reid further alleges that due to Downstate's poor ventilation system, there was “no place for the fumes to escape.” Id. at ¶ 3C(ii). Moreover, Reid was allegedly “surrounded (or outnumbered) by inmate smokers at Downstate's 6 . . . man section of cells . . . and the [ETS] would drift over into neighboring cells.” Id. at ¶ 3C(iv). Reid alleges that “indoor smoking is constant, if one smoker is not smoking, than [sic] another is, and if its [sic] not any of the Plaintiff's neighboring smokers than [sic] its [sic] the above 6 man section, or another 6 man section within the complex, whom are emitting ETS ....” Id. Reid's exposure to ETS allegedly debilitated his already weakened breathing ability and caused him chest pains and shortness of breath. Id.
In June 2018, Reid wrote to Downstate Superintendent Robert Morton to notify him about the ETS and its effect on his respiratory conditions, but did not receive a response. Id. at ¶ 3C(v). On July 2, 2018, Reid submitted a grievance requesting a smoke-free cell. Id. ¶ 3C(vi). Reid repeated these complaints in a July 9, 2018 letter to DOCCS Acting Commissioner Annucci and requested that Annucci install carbon monoxide detectors, separate smokers from non-smokers, and prevent the use or sale of tobacco products at the facility. Amended Compl. ¶ 3C(xii); Ex. Q. On July 30, 2018, Reid was transferred to Sing Sing Correctional Facility. Amended Compl. ¶ 3C(vi). On August 7, 2018, Reid's July 2nd grievance was denied, and Reid appealed the denial on August 10, 2018. Id. On August 17, 2018, Downstate Superintendent Morton reviewed and affirmed the denial. Id. On August 22, 2018, Reid appealed this denial to the Central Office Review Committee, which denied the request as moot (given Reid's transfer to Sing Sing) on October 30, 2019. Id.
b. Sing Sing Correctional Facility
Reid alleges that at Sing Sing, inmates would smoke cigarettes and rollies for most of the day, and that ETS came from “four different directions . . . up, down, left and/or right ....” Id. at ¶ 3C(ix). Reid further alleges that the exposure to ETS was exacerbated by inadequate ventilation in the cells. Id.
On August 6, 2018, Reid was seen for a medical callout by Nurse Monroe. Amended Compl. ¶ 3C(x). Reid explained his respiratory condition concerns to her and requested a cell with a window to prevent indoor tobacco smoke from lingering in the air and exacerbating his condition. Id. Monroe reviewed Reid's medical records from his prior term of state incarceration as well as from HHC. Id. Monroe did not recommend or otherwise take steps to ensure Reid was provided with a windowed cell. Id.
On August 13, 2018, Reid wrote to a Nurse Administrator requesting an incell window to help with the tobacco smoke in accordance with a recommendation from Reid's former pulmonologist. Id.; Ex. N. Reid did not receive a response to this request. Id. On August 20, 2018, Reid wrote to Monroe to follow up on his request for a different cell, but did not receive a response. Id.
On August 27, 2018, Reid wrote to Sing Sing Superintendent Capra and informed him that he was being exposed to harmful, unwanted fumes and requested to be moved to a windowed cell in Sing Sing's 5-Building for medical reasons. Id. ¶ 3C(ix); Ex. K. On September 4, 2018, Reid wrote a letter requesting to be moved to 5-Building due to ETS. Id. at 3C(xi); Ex. P. On September 5, 2018, First Deputy Superintendent K. Winship replied, stating that Reid's request had been referred to the Acting Deputy Superintendent for Programs as well as Sing Sing's Facility Health Service Director (“FHSD”) Dr. Razia Ferdous. Id. at ¶ 3C(xi); Ex. P. Neither the Acting Deputy Superintendent nor Defendant Ferdous took any action to relocate Reid to another building. Id. at ¶ 3C(xi). On September 11, 2018, Reid received a letter from his appointed counselor, Wilcher, stating that he had called Dr. Ferdous, who told him that Sing Sing did not have the accommodations Reid was requesting and that an inmate experiencing a “large amount” of ETS exposure should go through emergency sick-call procedures. Id. ¶ 3C(xi); Ex. O. Reid alleges that Dr. Ferdous' failure to take any action to relocate him to another building constitutes deliberate indifference to his medical needs. Id. at ¶ 3C(xi).
On September 10, 2018, Superintendent Capra denied Reid's August 27threquest for a cell change and did not refer the matter to medical professionals at Sing Sing. Id. at ¶ 3C(ix). On October 3, 2018, Reid was moved to a windowed cell in 5-Building. Id.
On September 14, 2018 and again on March 8, 2019, Reid wrote to the SCOC to complain about ETS at DOCCS facilities. Id. at ¶ 4C. The SCOC construed Reid's complaints to be a request under New York's Freedom of Information Law (“FOIL”) rather than a complaint under New York Correction Law. Id. Reid further alleges that the SCOC's misinterpretation of his complaints resulted in further respiratory damages to non-smokers like Reid. Id.
On October 16, 2018, Reid received a letter from DOCCS Deputy Commissioner McKay. Id. The letter stated that “Governor Cuomo and Acting Commissioner Annucci has asked [McKay] to respond to [Reid's] letter regarding second-hand smoke” and acknowledged that while Reid's “medical condition did not warrant reasonable accommodation,” he had nonetheless been moved to a cell in 5-Building where he has access to, and control of, a window. Amended Compl. ¶ 3C(ix); Ex. M. Superintendent Capra and Director Washington were copied on the correspondence. Id.
Reid does not specifically allege when he wrote to Governor Cuomo and Acting Commissioner Annucci, but based on the Court's review of the Amended Complaint and exhibits, it appears that McKay was responding to Reid's September 4, 2018 letter.
More than a year later, on October 28, 2019, Reid received a surgical pathology exam at Westchester Medical Center that indicated a “serious respiratory condition.” Amended Compl. ¶ 3C(xiii); Ex. U. Reid alleges that the State Defendants were deliberately indifferent to his medical needs by failing to take steps to limit his exposure to ETS and by failing to enforce the DOCCS “zerosmoking policy.” Id.
Reid alleges that as a result of the State Defendants' deliberate indifference to his ETS exposure, he has experienced shortness of breath, chest pains, and lung inflammation. Amended Compl. ¶ IV. Reid seeks both compensatory damages and injunctive relief stemming from his constitutional claims. See generally Amended Compl. ¶¶ 3C, 4C; V.
B. Procedural History
On January 22, 2020, Reid commenced this suit against the City Defendants and the State Defendants. Complaint (“Compl.”), Dkt. No. 2. On September 28, 2020, this case was referred to me for general pre-trial supervision and for a report and recommendation on any dispositive motions. Dkt. No. 21. The City and State Defendants subsequently moved to dismiss Reid's complaint. Dkt. Nos. 45-46, 5153, 60, 63, 69-70, 74. On August 6, 2021, I issued a Report & Recommendation recommending that both the City Defendants' and State Defendants' motions be granted, but that Reid be given an opportunity to amend his complaint. Report and Recommendation (“Report” or “R&R”), Dkt. No. 80. On September 14, 2021, the R&R was adopted in full. Memorandum Decision & Order (“Order”), Dkt. No. 81.
The original complaint included claims against six State Defendants (Loughren, Moran, Koenigsmann, Nayshuler, Hammer, and Schupak) who were not named in the Amended Complaint.
On October 1, 2021, Reid filed the Amended Complaint. Dkt. No. 89. On October 18, 2021, the City Defendants moved to dismiss the Amended Complaint for failure to state a claim. Notice of Motion, Dkt. No. 92; City Def. Mem., Dkt. No. 93. On November 1, 2021, the State Defendants moved to dismiss the Amended Complaint for lack of subject matter jurisdiction and for failure to state a claim. Notice of Motion, Dkt. No. 97; Memorandum of Law in Support of State Defendants' Motion to Dismiss (“State Def. Mem.”), Dkt. No. 98. Reid submitted his opposition to the State Defendants' motion on December 6, 2021, and the State Defendants submitted reply papers on December 16, 2021. Plaintiff's Opposition to the State Defendants' Motion to Dismiss (“Pl. Opp.”), Dkt. No. 100; State Defendants' Reply Memorandum of Law (“State Def. Reply”), Dkt. No. 101. Reid did not oppose the City Defendants' motion.
II. DISCUSSION
A. Applicable Legal Standards
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion, a plaintiff must plead facts in his complaint that “state a claim to relief that is plausible on its face” and that satisfy Federal Rule of Civil Procedure 8(a)(2). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Rule 8(a)(2) requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Id. at 677-78 (quoting Fed.R.Civ.P. 8(a)(2)). 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.” Id. at 678 (citing Twombly, 550 U.S. at 556). Nevertheless, this standard still requires a plaintiff's pleadings to sufficiently “nudge[ ] [its] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. Furthermore, “[a] plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555. Therefore, “[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679; see also Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007) (complaint insufficient if it lacks factual allegations necessary “to give the defendant fair notice of what the claim is and the grounds upon which it rests”).
A complaint filed by a pro se plaintiff “is to be liberally construed and . . . must be held to less stringent standards than formal pleadings drafted by lawyers.” Bennett v. City of New York, 425 Fed.Appx. 79, 80 (2d Cir. 2011) (quoting Boykin v. KeyCorp., 521 F.3d 202, 214 (2d Cir. 2008)). Accordingly, pleadings of a pro se party should be read “to raise the strongest arguments they suggest.” Kevilly v. New York, 410 Fed.Appx. 371, 374 (2d Cir. 2010) (internal quotation marks omitted). In addition, as previously noted, the Court may also consider allegations that appear in a pro se plaintiff's opposition papers or other submissions to the Court. See e.g., Henning v. N.Y.C. Dep't of Corr., No. 14-CV-9798 (JPO), 2016 WL 297725, at *3 (S.D.N.Y. Jan. 22, 2016) (“Although this allegation appears in his opposition papers, the Court - consistent with its duty to liberally construe pro se pleadings - will credit Plaintiff's assertion in evaluating the sufficiency of his complaint.”).
“Nevertheless, dismissal of a pro se complaint is appropriate where a plaintiff fails to state a plausible claim supported by more than conclusory factual allegations.” Jones v. City of N.Y., No. 18-CV-1937 (VSB), 2020 WL 1644009, at *5 (S.D.N.Y. Apr. 2, 2020) (citing Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013)). In other words, the “duty to liberally construe a plaintiff's complaint is not the equivalent of a duty to re-write it.” Jones, 2020 WL 1644009, at *5 (quoting Geldzahler v. N.Y. Med. Coll., 663 F.Supp.2d 379, 387 (S.D.N.Y. 2009)).
The Court broadly construes Reid's Amended Complaint as asserting (1) claims of deliberate indifference to unconstitutional conditions of confinement and to serious medical needs against both the City Defendants and State Defendants pursuant to § 1983; (2) claims against the City Defendants pursuant to Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), arising out of any official municipal policies or customs that caused any of the alleged constitutional violations; and (3) state law gross negligence claims against State Defendant Riley. Under § 1983, a plaintiff must show that “each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Tangreti v. Bachmann, 983 F.3d 609, 616 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 676). Because the elements of different constitutional violations vary, “[t]he factors necessary to establish a § 1983 violation will vary with the constitutional provision at issue . . .” Tangreti, 983 F.3d at 618 (quoting Iqbal, 556 U.S. at 676).
In Tangreti, the Second Circuit overturned its decision in Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995), which had set forth five categories of evidence that may establish the liability of a supervisory official for a subordinate's conduct under § 1983. 983 F.3d at 615-18.
1. Conditions of Confinement
Reid was a pretrial detainee from September 16, 2016 to October 30, 2017. Amended Compl. ¶¶ 1C, 2C. Accordingly, his deliberate indifference claims arising during this period must be analyzed under the Due Process Clause of the Fourteenth Amendment rather than the Eighth Amendment, as “[p]retrial detainees have not been convicted of a crime and thus ‘may not be punished in any manner - neither cruelly and unusually nor otherwise.'” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (citations omitted). On the other hand, Reid's deliberate indifference claims arising after his conviction on October 31, 2017 must be analyzed under the Eighth Amendment. Id.; see also Amended Compl. ¶ 2C.
Under both the Fourteenth and Eighth Amendments, a plaintiff must satisfy both an “objective” prong establishing that the deprivation was “sufficiently serious that he was denied the minimal civilized measure of life's necessities,” and a “subjective” prong establishing that the “defendant official acted with a sufficiently culpable state of mind . . ., such as deliberate indifference to inmate health and safety.” Darnell, 849 F.3d at 29 (internal quotations omitted). However, while the “objective prong” analysis is the same under both amendments, the “subjective” prong differs. Id. at 29-30; 33-35.
Under both the Eighth and Fourteenth Amendments, a plaintiff can establish an objective deprivation by showing that “the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health . . .” Id. at 30 (citing Walker, 717 F.3d at 125). This includes “the risk of serious damage to physical and mental soundness.” Id. (citing LaReau v. MacDougall, 473 F.2d 974, 978 (2d Cir. 1972)). There is no bright-line test to determine whether a deprivation is sufficiently serious; instead, “the conditions themselves must be evaluated in light of contemporary standards of decency.” Blisset v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995) (citing Rhodes v. Chapman, 452 U.S. 337, 346 (1981)). Conditions of confinement “may be aggregated to rise to the level of a constitutional violation, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise.” Darnell, 849 F.3d at 30 (quoting Walker, 717 F.3d at 125).
In order to meet the “subjective” or “mens rea” prong under the Fourteenth Amendment, a plaintiff 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 defendantofficial knew, or should have known, that the condition posed an excessive risk to health or safety.Id. at 35.
To meet the subjective prong under the Eighth Amendment, a plaintiff must show that the defendant “acted with more than mere negligence,” and instead knew of and disregarded an “excessive risk to inmate health or safety.” Walker, 717 F.3d at 125. A defendant cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement “unless the official knows of and disregards an excessive risk to inmate health or safety; the 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.” Gunn v. Annucci, No. 20-CV-2004 (PMH), 2021 WL 1699949, at *8-9 (S.D.N.Y. Apr. 29, 2021) (quoting Darnell, 849 F.3d at 32).
2. Deliberate Indifference to Medical Needs
As with his conditions-of-confinement claims, Reid's deliberate indifference to medical needs claims arising from his time as a pretrial detainee must be analyzed under the Fourteenth Amendment, while any post-conviction deliberate indifference claims must be analyzed under the Eighth Amendment. See Davis v. McCready, 283 F.Supp.3d 108, 116 (S.D.N.Y. 2017) (citing Darnell, 849 F.3d at 29). To state a claim for deliberate indifference to serious medical needs, “a pretrial detainee must satisfy a two-pronged test: First, the alleged deprivation of adequate medical care must be ‘sufficiently serious.'” Id. (quoting Lloyd v. City of New York, 246 F.Supp.3d 704, 717 (S.D.N.Y. 2017)). Second, “the defendant must act with a ‘sufficiently culpable state of mind.'” Id. (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).
Under both the Fourteenth and Eighth Amendments, determining whether a deprivation of medical care is objectively serious involves two inquiries: (1) “whether the prisoner was actually deprived of adequate medical care,” and (2) “whether the inadequacy in medical care is sufficiently serious,” which in turn “requires the court to examine how the offending conduct is inadequate and what harm, if any, the inadequacy has caused or will likely cause the prisoner.” Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir. 2006); see also Davis, 283 F.Supp.3d at 117. “There is no settled, precise metric to guide a court in its estimation of the seriousness of a prisoner's medical condition.” Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003). Nevertheless, the Second Circuit has offered the following non-exhaustive list of factors to consider when evaluating an inmate's medical condition: “(1) whether a reasonable doctor or patient would perceive the medical need in question as important and worthy of comment or treatment, (2) whether the medical condition significantly affects daily activities, and (3) the existence of chronic and substantial pain.” Id. The term “sufficiently serious” has also been described as “a condition of urgency, one that may produce death, degeneration, or extreme pain.” Sonds v. Barnabas Hosp. Corr. Health Servs., 151 F.Supp.2d 303, 310 (S.D.N.Y. 2001).
If the alleged unreasonable medical care is “a failure to provide any treatment for an inmate's medical condition, courts examine whether the inmate's medical condition is sufficiently serious.” Davis, 283 F.Supp.3d at 120 (quoting Salahuddin, 467 F.3d at 280). However, “[i]n cases where the inadequacy is in the medical treatment given, the seriousness inquiry is narrower.” Id. If an inmate is receiving ongoing treatment and the offending conduct is an unreasonable delay or interruption in that treatment, “the seriousness inquiry focuses on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone.” Id.; see also Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003). In evaluating whether a delay or interruption in treatment is sufficiently serious, “the actual medical consequences that flow from the alleged denial of care will be highly relevant.” Smith, 316 F.3d at 187; see also Snyder v. Alam, No. 15-CV-4033 (VB), 2016 WL 2642226, at *4 (S.D.N.Y. May 6, 2016) (“only those injuries plaintiff specifically attributes to the delay will be considered”).
As with conditions-of-confinement claims, the framework for the “subjective” or “mens rea” prong of the analysis differs between the Fourteenth and Eighth Amendments. Under the Fourteenth Amendment, a plaintiff must plead sufficient facts to suggest that “an objectively reasonable person in [d]efendant's position would have known, or should have known, that [d]efendant's actions or omissions posed an excessive risk of harm” to the plaintiff. Davis, 283 F.Supp.3d at 120 (citing Darnell, 849 F.3d at 35); see also Lloyd, 246 F.Supp.3d at 719. However, “something more than negligence is needed to elevate a claim of medical misconduct to a constitutional tort.” Davis, 283 F.Supp.3d at 121 (citing Darnell, 849 F.3d at 36 (“But any § 1983 claim for a violation of due process requires proof of a mens rea greater than mere negligence.”)).
To satisfy the subjective prong under the Eighth Amendment, a plaintiff must show that prison officials were “subjectively reckless in their denial of medical care.” Spavone v. New York State Dep't of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013) (citing Salahuddin, 467 F.3d at 280). This means that the official must have “appreciate[d] the risk to which a prisoner was subjected,” and have had a “subjective awareness of the harmfulness associated with those conditions.” Darnell, 849 F.3d at 35; see also Salahuddin, 467 F.3d at 280 (“Deliberate indifference is a mental state equivalent to subjective recklessness,” and “requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result.”). In other words, “[i]n medical-treatment cases not arising from emergency situations, the official's state of mind need not reach the level of knowing and purposeful infliction of harm; it suffices if the plaintiff proves that the official acted with deliberate indifference to inmate health.” Salahuddin, 467 F.3d at 280. An official's awareness of the risk of serious harm can be established through “inference from circumstantial evidence,” including “from the very fact that the risk was obvious.” Farmer v. Brennan, 511 U.S. 825, 842 (1994). However, “mere negligence” is insufficient to state an Eighth Amendment claim for deliberate indifference. Walker, 717 F.3d at 125 (quoting Farmer, 511 U.S. at 835). Nor does “mere disagreement over the proper treatment . . . create a constitutional claim”; “[s]o 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.” Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998).
B. Analysis
1. Reid has Failed to State Any Plausible Claims for Relief
The Court assumes familiarity with its prior Report and incorporates by reference the analysis set forth therein. R&R at 22-51. With the prior Report and the Amended Complaint in mind, the Court first considers Reid's constitutional claims against the City Defendants and the State Defendants and then examines any state law claims against State Defendant Riley. As discussed below, despite having been given the opportunity to provide additional facts in an amended pleading, Reid has failed to state any plausible claims against the City Defendants or State Defendants.
a. Exposure to Asbestos
First, Reid contends that the City Defendants subjected him to unconstitutional conditions of confinement by exposing him to asbestos. Amended Compl. ¶ 1C. Reid's constitutional claim based on his exposure to asbestos in his original complaint was dismissed because he failed to plead “sufficient facts to establish that he was exposed to an ‘unreasonably high concentration of air-borne asbestos particles,'” and therefore failed to satisfy the objective prong of a Fourteenth Amendment conditions-of-confinement claim. R&R 24-25; Order at 78. Specifically, while Reid's original complaint alleged that he was required to use the lower corridor to access programs and services, it did not allege “how frequently the alarm rang while he was traveling through the lower corridor or how often he had to keep his hands on the wall” near the asbestos-covered pipes. R&R at 24. Moreover, the Court concluded that even if the allegations in Reid's original complaint satisfied the objective prong of an unconstitutional conditions-of-confinement claim, “there [were] no facts pled that would suggest that any of the City Defendants knew of or should have known of an excessive risk to Reid's health.” R&R at 24; Order at 8.
Because this claim arose during the period when Reid was a pretrial detainee, the Fourteenth Amendment's deliberate indifference analytical framework applies. Darnell, 849 F.3d at 29.
Reid's Amended Complaint does not cure these deficiencies. Although Reid alleges that he walked through the lower corridor every day to access programs and services, Amended Compl. at ¶ 1C, he does not allege how frequently the alarm rang while he was in the lower corridor or how often he had to keep his hands on the wall. Furthermore, Reid has not added any factual allegations from which the Court can conclude that any of the City Defendants knew or should have known of an “excessive risk” to Reid's health due to the alleged asbestos exposure. Darnell, 849 F.3d at 35. Therefore, Reid's Amended Complaint fails to allege a cognizable conditions-of-confinement claim based on asbestos exposure.
b. Premature Release from HHC Care
Next, Reid contends that the City Defendants were deliberately indifferent to his medical needs by releasing him from HHC's medical custody and transferring him to a New York State correctional facility before Reid's 15 physical therapy appointments were completed. Amended Compl. ¶ 2C. Because Reid was receiving ongoing treatment for his rotator cuff injury, the Court construes this claim as arising out of “delayed treatment,” and therefore must consider the “severity of the temporary deprivation alleged by the prisoner.” Ayuso v. Bentivegna, No. 18-CV-3419 (NSR), 2021 WL 2535535, at *3 (S.D.N.Y. June 21, 2021) (citing Smith, 316 F.3d at 186).
Reid's deliberate indifference claim based on his premature release from HHC custody was originally dismissed because he failed to plead “enough facts for the Court to determine ‘the actual medical consequences that flow' from the City Defendants' alleged delay of care.” R&R at 31 (citing Smith, 316 F.3d at 187). Although Reid alleged that his rotator cuff injury placed him in extreme pain, he did not “specifically attribute that injury to the delay of his sixth physical therapy appointment.” Id. (citing Snyder, 2016 WL 2642226, at *4 (“only those injuries plaintiff specifically attributes to the delay will be considered”)). Moreover, the Court concluded that even if the allegations in his original complaint satisfied the objective prong of a deliberate indifference claim, Reid had failed to allege “that the City Defendants had a ‘subjective awareness of the harmfulness associated' with Reid's transfer to a state facility.” Id. (citing Darnell, 849 F.3d at 35).
Reid's Amended Complaint does not cure these deficiencies. As an initial matter, Reid's deliberate indifference allegations against the City Defendants in the Amended Complaint are virtually identical to those in the original complaint. Compare Amended Compl. ¶ 2C with Compl. at ¶ 8C. Moreover, as with the original complaint, none of the allegations in Reid's Amended Complaint specifically attributes any of Reid's current issues with arm movement to the delay in his sixth physical therapy appointment. Nor does Reid's Amended Complaint allege any facts demonstrating that the City Defendants were actually aware, or should have been aware, that a New York State correctional facility would provide inadequate treatment for Reid's rotator cuff injury and then disregarded that risk by approving Reid's transfer to a state facility. See Green v. McLaughlin, 480 Fed.Appx. 44, 48 (2d Cir. 2012) (plaintiff failed to satisfy subjective prong because he did not allege that prison medical staff at pre-transfer facility was aware of substantial risk that posttransfer facility would provide inadequate treatment for plaintiff's medical condition). Therefore, Reid has failed to state a claim for deliberate indifference to medical needs based on his premature release from HHC's care.
c. Inadequate Ventilation and Exposure to ETS
With respect to the State Defendants, Reid contends that exposure to secondhand tobacco smoke, coupled with inadequate ventilation, at both Downstate and Sing Sing constituted unconstitutional conditions of confinement and deliberate indifference to medical needs, particularly in light of Reid's preexisting respiratory conditions: COPD and asthma. See generally Amended Compl. ¶ 3C. Exposure to unsafe levels of toxic substances, such as tobacco smoke, can suffice as a sufficiently dangerous condition to satisfy the objective prong of an Eighth Amendment conditions-of-confinement claim. See, e.g., Wright v. New York State Dep't of Corr. Servs., No. 06-CV-3400 (RJS) (THK), 2008 WL 5055660, at *10 (S.D.N.Y. Oct. 10, 2008) (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). However, to state an Eighth Amendment conditions-of-confinement claim based on ETS, Reid must demonstrate that he was exposed to “unreasonably high levels” of secondhand smoke. Jones v. Goord, 435 F.Supp.2d 221, 249 (S.D.N.Y. 2006).
Because Reid was convicted prior to his transfer to New York State correctional facilities, his claims arising from his time at Downstate and Sing Sing are properly analyzed under the Eighth Amendment. Darnell, 849 F.3d at 29.
Reid's conditions-of-confinement claim based on inadequate ventilation and his exposure to ETS was originally dismissed because he had failed to “allege sufficient facts for the court to determine the severity and duration of his exposure to ETS” and had therefore failed to allege that “these conditions posed an objectively unreasonable risk to [his] health.” R&R at 35; Order at 10-11. Moreover, the Court concluded that even if the allegations in Reid's original complaint satisfied the objective prong of a conditions-of-confinement claim, Reid had failed to plead “facts demonstrating that any of the State Defendants knew of and disregarded an ‘excessive risk' to Reid's health or safety.” R&R at 35 (citing Walker, 717 F.3d at 125); Order at 10-11.
Reid's Amended Complaint does not cure these deficiencies. While Reid alleges additional facts regarding the general prevalence of indoor smoking at Downstate and Sing Sing, see, e.g., Amended Compl. ¶¶ 3C(iv); 3C(ix), he does not provide any facts regarding the severity and duration of his personal exposure to ETS. Reid alleges that at Downstate, he was “surrounded” by other inmates in his 6-cell section who were smokers and that ETS would “drift over into neighboring cells.” Id. at ¶ 3C(iv). Reid further alleges that in June 2018, “on a daily basis, indoor smoking is constant, if one smoker is not smoking, than [sic] another one is, and if its [sic] not any of the Plaintiff's neighboring smoker than it's the above 6 man section, or another 6 man section within the complex, whom are emitting ETS.” Id. With respect to ETS at Sing Sing, Reid alleges only that “[p]risoners would smoke cigarettes/rollies, for most of the day” and that “ETS comes from four different directions.” Id. at ¶ 3C(ix). These allegations, without more, do not provide enough facts about the severity and duration of Reid's personal exposure to ETS from which the Court can conclude that these conditions posed an objectively unreasonable risk to Reid's health. Compare Davis v. New York, 316 F.3d 95, 10001 (2d Cir. 2002) (court reversed summary judgment in favor of prison officials where plaintiff produced evidence that he had been double bunked with smoker, housed for six years in areas where majority of inmates were smokers, and was then surrounded by seven inmates who were chain smokers or heavy smokers) with Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (affirming district court's dismissal under Rule 12(b)(6) because three brief encounters with ETS “alleged only a de minimis injury, and, hence, did not amount to an Eighth Amendment violation”).
Even if Reid had pleaded sufficient facts related to the severity and duration of his ETS exposure at Downstate and Sing Sing, he has not pleaded facts demonstrating that any of the State Defendants knew of and disregarded an “excessive risk” to Reid's health or safety. See, e.g., Walker, 717 F.3d at 125. Reid alleges that, while at Downstate, he submitted written complaints to Superintendent Morton and Acting Commissioner Annucci regarding the ETS and its impact on his health, but that they did not respond or take any steps to enforce the facility's “no indoor smoking” policy more consistently. Amended Compl. ¶¶ 3C(v); 3C(xii). These allegations, without more, fail to demonstrate that Morton and Annucci were more than merely negligent or knew of and disregarded an excessive risk to Reid's health and safety. Walker, 717 F.3d at 125 (defendant's mere negligence insufficient to satisfy Eighth Amendment subjective prong).
Reid's allegations regarding the State Defendants' actions at Sing Sing similarly fail to satisfy the subjective prong of the deliberate indifference inquiry. On August 27, 2018, Reid wrote to Superintendent Capra requesting a windowed cell in Sing Sing's 5-Building due to his preexisting respiratory conditions. Id. at ¶ 3C(ix). Although Capra initially denied Reid's request, Reid was ultimately reassigned to a windowed cell in 5-Building on October 3, 2018. Id. On October 16, 2018, Reid received a response from McKay, who wrote that while Reid's medical condition did not warrant an accommodation, McKay was aware that Reid had been transferred to a windowed cell in 5-Building. Id. ¶ 3C(ix); Ex. M. Capra and Washington were copied on McKay's response to Reid. Id.
Director Washington was not formally named as a defendant in Reid's Amended Complaint. See Amended Compl. I.B. However, because Reid is pro se and because the State Defendants have addressed the allegations against Washington in their motion papers, see, e.g., State Def. Mem. at 6, 9, the Court considers whether the allegations against Washington are sufficient to state a claim for relief.
These facts are insufficient to plausibly allege that Capra, McKay, or Washington knew of and disregarded an “excessive risk” to Reid's health. First, Reid's request to be transferred to a windowed cell was ultimately granted, demonstrating that the State Defendants were at least in part responsive to Reid's respiratory concerns due to ETS. Additionally, as discussed above, Reid has not alleged that he informed Capra, McKay, or Washington about the severity or duration of his ETS exposure before he was moved to a windowed cell. For these reasons, Reid has not alleged the requisite facts that Capra, McKay, and Washington actually knew (or should have known) of and disregarded an excessive risk to Reid's health. Therefore, these allegations fail to meet the subjective prong of the deliberate indifference claim.
To the extent Reid alleges a deliberate indifference claim against SCOC Chairman Riley, Amended Compl. ¶ 4C, he has not alleged any facts to demonstrate that Riley actually knew or should have known of and disregarded an excessive risk to Reid's health, and therefore that claim should be dismissed as well.
Moreover, to the extent Reid alleges a deliberate indifference to medical needs claim against Defendants Monroe and Ferdous, such a claim also fails. To adequately plead a deliberate indifference to medical needs claim, Reid must allege that he suffered a sufficiently serious deprivation of adequate medical care and that the State Defendants were “subjectively reckless in their denial of medical care.” Spavone, 719 F.3d at 138.
First, although exposure to ETS can be sufficiently serious to satisfy the objective prong of an Eighth Amendment deliberate indifference to medical needs claim, as discussed above, Reid has not pled enough facts as to the frequency, intensity, duration, and circumstances in which he was exposed to ETS at Sing Sing.
Additionally, there is no basis for the Court to conclude that Defendants Monroe or Ferdous were “subjectively reckless in their denial of medical care.” Spavone, 719 F.3d at 138. Reid concedes that Defendant Monroe did not inadequately “prescribe medications . . . hospital trips . . . and medical appointments,” and does not allege that she denied any treatment with respect to his physical symptoms arising out exposure to ETS. Instead, Reid alleges that Defendant Monroe failed to request that Reid be moved to a windowed cell even after becoming aware of his respiratory conditions. Amended Compl. ¶ 3C(x). Similarly, Reid alleges Dr. Ferdous should have taken steps to accommodate Reid's request for a windowed cell, and that her failure to do so constitutes deliberate indifference. Amended Compl. ¶ 3C(xi). These failures, without more, are insufficient to satisfy the subjective prong of a deliberate indifference to medical needs claim. See, e.g., Sledge v. Fein, No. 11-CV-7450 (PKC), 2013 WL 1288183, at *6 (S.D.N.Y. Mar. 29, 2013) (doctor's failure to make specific treatment recommendation to prison officials that plaintiff be moved to his own cell to alleviate plaintiff's medical conditions did not satisfy subjective prong of deliberate indifference claim).
In sum, Reid has not alleged any set of facts sufficient to support a cognizable unconstitutional conditions-of-confinement claim or a deliberate indifference to medical needs claim during his time in DOC or DOCCS custody, and therefore those claims should be dismissed.
To the extent Reid seeks injunctive relief to address the ETS levels at the Downstate and Sing Sing facilities, Amended Compl. ¶ V, that claim should be dismissed as moot given Reid's transfer to Green Haven Correctional Facility. Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir. 1996) (“It is settled in this Circuit that a transfer from a prison facility moots an action for injunctive relief against the transferring facility”); see also Simmons v. Cripps, No. 12-CV-1061 (PAC) (DF), 2013 WL 1290268, at *23 n.14 (S.D.N.Y. Feb. 15, 2013). In his opposition papers, Reid states that he was moved from Great Meadow Correctional Facility back to Sing Sing on August 19, 2021, and is therefore still entitled to injunctive relief. Pl. Opp. 18. However, Reid has since been moved to Green Haven Correctional Facility, Dkt. No. 102, and therefore his claim for injunctive relief should be dismissed as moot.
2. Monell Liability
As discussed in the Court's previous Report, because Reid has not plausibly alleged the existence of a constitutional violation, his Monell claim against the City of New York should also be dismissed. See R&R at 42-45 (collecting cases); Order at 13-14.
3. Personal Involvement
The State Defendants argue that Reid has failed to plausibly allege the personal involvement of Riley, Annucci, McKay, Washington, Morton, Capra, and Dr. Ferdous. State Def. Mem. at 8-14. As an initial matter, because Reid has not adequately pled any underlying claims of a constitutional violation, the Court need not determine whether Reid adequately pled the personal involvement of the State Defendants. See, e.g., Rivera v. Royce, No. 19-CV-10425 (PMH), 2021 WL 2413396, at *10 (S.D.N.Y. Jun. 11, 2021) (whether plaintiff pleaded personal involvement need not be addressed because of failure to plead any underlying constitutional claims) (collecting cases). However, because Reid is proceeding pro se, and for completeness, the Court will consider whether he has sufficiently alleged the personal involvement of any of the State Defendants. Given that many of Reid's allegations in his Amended Complaint are identical to those in the original complaint (analyzed at R&R pgs. 45-51), the Court will only consider whether the newly added allegations against the State Defendants are sufficient to allege their personal involvement.
“It is well settled that, in order to establish a defendant's individual liability in a suit brought under § 1983, a plaintiff must show . . . the defendant's personal involvement in the alleged constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013). To establish personal involvement, a plaintiff must plead that “each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Tangreti, 983 F.3d at 618 (quoting Iqbal, 556 U.S. at 676). As the Second Circuit recently stated in Tangreti, “[t]he factors necessary to establish a [§ 1983] violation will vary with the constitutional provision at issue because the elements of different constitutional violations vary. The violation must be established against the supervisory official directly.” Id.
With respect to Annucci, McKay, and Washington, Reid's only additional allegations are that these defendants should have monitored and been aware of ETS conditions and the associated risks in DOCCS facilities. Amended Compl. ¶ 3C(xiii). These allegations, without more, do not plausibly allege that these defendants, through their own individual actions, violated Reid's constitutional rights. Tangreti, 983 F.3d at 618. Therefore, Reid has failed to adequately allege Annucci, McKay, and Washington's personal involvement.
With respect to Morton and Capra, Reid's only additional allegations are that these defendants denied several of his grievance requests. Amended Compl ¶¶ 3C (vi); 3C(ix). These facts are insufficient to plausibly allege Morton and Capra's personal involvement in any alleged constitutional deprivations. Michel v. Orange Cty., N.Y., No. 21-CV-9406 (CS), 2021 WL 5529841, at *4 (S.D.N.Y. Nov. 24, 2021) (allegations that prison official denied plaintiff's grievances insufficient to allege personal involvement in violating plaintiff's constitutional rights).
With respect to Dr. Ferdous, Reid's allegations premise her liability on her position as Sing Sing's Facility Health Services Director, rather than any personal actions taken with respect to Reid's medical care. First, Reid alleges that his September 4, 2018 letter requesting to be moved to Sing Sing's 5-Building was forwarded to Dr. Ferdous, but that he received no response. Amended Compl. at ¶ 3C(xi). Reid alleges that his counselor Wilcher spoke with “Medical Director Ferdous” about Reid's medical condition and request to be moved to a windowed cell. Amended Compl. ¶ 3C(xi); Ex. O. However, Reid does not allege the extent to which Dr. Ferdous was made aware of Reid's condition, and does not allege that Dr. Ferdous reviewed his medical records or was otherwise personally involved in his medical care. Instead, Reid alleges only that Dr. Ferdous should have been aware of Reid's medical needs because she was Nurse Monroe's supervisor. Id. These facts, without more, are insufficient to plausibly allege Dr. Ferdous' personal involvement in any alleged constitutional violations. See, e.g., Mateo v. Fischer, 682 F.Supp.2d 423, 430 (S.D.N.Y. 2010) (“Courts in this circuit have said that the receipt of letters or grievances, by itself, does not amount to personal involvement.”).
Lastly, with respect to Riley, Reid's allegations in the Amended Complaint are substantively similar to his allegations in the original complaint, and therefore the Court incorporates by reference its analysis in its prior Report. Amended Compl. ¶ 4C; see R&R at 50-51.
In sum, Reid has not alleged the personal involvement of any of the defendants discussed herein. This lack of personal involvement provides a separate basis for dismissal.
The State Defendants argue that any named individual Defendant is entitled to qualified immunity. State Def. Mem. at 20-23. Because the Court recommends dismissing Reid's underlying claims, it need not address the State Defendants' qualified immunity defense at this time. Ayuso, 2021 WL 2535535, at *5; Gunn, 2021 WL 1699949, at *10 n.5 (declining to address defendants' qualified immunity arguments after dismissing plaintiff's underlying constitutional claims).
4. State Law Claim Against Chairman Riley
Finally, the Court liberally construes Reid's Amended Complaint to assert a state law negligence claim against Riley for failing to properly train the SCOC's Record Access Officer and to properly “supervise” subordinates who deprived Reid of his constitutional rights. Amended Compl. ¶ 4C. Because Reid fails to state a § 1983 claim as to any of the City and State Defendants, the Court should decline to exercise supplemental jurisdiction over any state law claims that may be construed to be alleged. See, e.g., Matican v. City of New York, 524 F.3d 151, 154-55 (2d Cir. 2008) (“[I]f [the plaintiff] has no valid claim under § 1983 against any defendant, it is within the district court's discretion to decline to exercise supplemental jurisdiction over the pendent state-law claims.”) (citation omitted); Dash v. Mayers, No. 19-CV-414 (GBD) (JLC), 2020 WL 1946303, at *9 (S.D.N.Y. Apr. 23, 2020), adopted sub. nom. Dash v. Doe, 2020 WL 3057133 (June 9, 2020).
III. CONCLUSION
For the foregoing reasons, I recommend that both the City and State Defendants' motions be granted. Moreover, Reid has now had two opportunities to amend and supplement his pleadings (and three, if you count his opposition papers to the current motions). See R&R at 54 n.19 (“Because the Court considered allegations made for the first time in Reid's opposition papers, Reid has effectively already had an opportunity to amend and supplement his pleadings.”). While the Court is sympathetic to the concerns Reid has raised in this litigation, nothing in his Amended Complaint (or his opposition papers) suggests that he possesses additional facts that would cure the deficiencies described in this Report. Therefore, I recommend that at this juncture Reid's claims be dismissed with prejudice. See, e.g., Palompelli v. Smith, No. 20-CV-8070 (CS), 2022 WL 624421, at *6 (dismissing pro se plaintiff's complaint with prejudice when there was no suggestion that plaintiff possessed facts that would cure deficiencies in previous complaints) (collecting cases); Dash, 2020 WL 1946303, at *9 (dismissing complaint with prejudice when plaintiff already had one opportunity to amend complaint and court liberally construed opposition in a way that effectively amounted to another pleading).
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels, United States Courthouse, 500 Pearl Street, New York, NY 10007. Any requests for an extension of time for filing objections must be directed to Judge Daniels. If Reid does not have access to cases cited herein that are reported on Westlaw, he should request copies from counsel for the City or State Defendants. Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009); Local Civil Rule 7.2, Local Rules of the United States District Courts for the Southern and Eastern Districts of New York.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).