KATHERINE POLK FAILLA, United States District Judge
BACKGROUND
A. Factual Background
For purposes of this motion, the Court accepts as true the well-pleaded allegations of Plaintiff's pleadings. Plaintiff, who is proceeding pro se , is legally blind; in 2017, he was detained at the Otis Bantum Correctional Center (the "OBCC"), and then at the North Infirmary Command (the "NIC"), both of which are part of the Rikers Island correctional facility complex in New York City. (Compl. ¶¶ 1-3, 29-32).
Prior to entering DOC custody, Plaintiff sustained injuries that included "[b]lindness in both eyes, broken finger, [s]titches in right leg open wounds (tibia fibula), swelling and lacerations of facial area closed eye, contusion of left leg, high fever,
From January 8, 2017, until January 20, 2017, Plaintiff was housed in the Security Risk Group (or "SRG") at OBCC, in an upper dormitory reached by three flights of stairs, along with other inmates who were gang members, despite Plaintiff's having "injuries to the right leg and contusions on the left leg with crutches and a broken finger and [being] clearly disabled[.]" (Compl. ¶ 29; Mar. Supp. Compl. ¶¶ 7-8).
On January 20, 2017, Plaintiff was transferred to NIC, where he was "informed that handicap housing was shut down," and placed in a medical unit dormitory. (Compl. ¶ 32; Mar. Supp. Compl. ¶ 10). While in the medical unit, Plaintiff was issued a "short" blind mobility cane. (Compl. ¶ 33). Plaintiff alleges that he should have been issued a "tall" blind mobility cane, and that the cane provided to him "was too short" for him to use. (Id. ). Plaintiff also lacked an inmate mobility assistant, or sighted guide, to assist him in his movements around the facility. (Id. at ¶ 34). The Court understands that Plaintiff is not only challenging prison officials' failure to act on his requests for accommodations, but also their failure to advise him of available resources for blind inmates. As stated in the pleadings, Plaintiff was compelled to "[c]ontinue on crutches, without [a] mobility guide, social worker, or information on Reasonable Accommodations within [the] facility [which] should have consist[ed] of, free matter for the blind mail, mobility guide, Blind cane, video Court, and devices within facility law library, corrective lenses, social worker , phone system, large lettering commissary purchases, [and] Braille courses. " (Mar. Supp. Compl. ¶ 10 (first emphasis added, second emphasis in original) ).
Plaintiff was also allegedly denied access to assistive devices in the law library, and this denial forms a significant portion of
Plaintiff went to the law library, and asked Defendant VICKI BURGESS, the law library officer, about assistive devices to utilize for "legally blind" and visually impaired inmates. Plaintiff showed the Defendant his grievance about reasonable accommodations and letter from [Deputy] of Programs Ms. Chaplin, and Defendant NINA EDWARDS about assistive devices being in the law library, and Defendant BURGESS denied plaintiff from utilizing the assistive devices, stating his medical documents of being legally blind and paper work had no[ ] merit, and that he could not utilize any assistive devices which fall[ ] under reasonable accommodations.
(Compl. ¶ 36). Plaintiff's March Supplemental Complaint further specifies:
In and around [July 20, 2017,] plaintiff entered the Law library at (NIC) North Infirmary Command. Seeking assistance in utilizing devices, under Reasonable Accommodations relating to visual Impairment, such as qualified readers, taped texts, or other effective methods available to individuals with visual impairment, acquisition, or modification of equipment or devices. Upon entering[, Plaintiff] received little if any assistance.
(Mar. Supp. Compl. ¶ 29).
Thereafter, Plaintiff contacted Defendant Nina Edwards to request reasonable accommodations. (Compl. ¶ 37). According to the Complaint, "[w]hen plaintiff contacted defendant NINA EDWARDS, she referred the request for reasonable accommodations to [another person] when she [was] supposed to have handled it herself[,]" suggesting that Defendant Edwards may have delayed or impaired Plaintiff's attempts to access accommodations. (Id. ). Additional information is provided in Plaintiff's March Supplemental Complaint:
[A] law Clerk directed him to [a] posting containing Nina Edwards's incorrect information of location. Plaintiff addresse[d] a letter to Nina Edwards resulting in return to sender due to incorrect address.... [P]revious complaints ... were ignore[d] at the hands of Nina Edwards. Plaintiff filed a grievance. On [August 13, 2017,] due to no response [Plaintiff] filed a second grievance involving reasonable accommodations within [the] court system ... and communication barriers. (DOCS) fail[ed] to make such facilities privileges, advantages, or Accommodations available through alternative methods.... In and around the date of [August 18, 2017, Plaintiff] receive[d] [a] visit from Deputy of Programs Ms. Chaplin. [Plaintiff stated his] grievance pertaining to devices, under Reasonable Accommodations within the facility law library.... In and around [August 18, 2017, Plaintiff] entered the law library and was told by [Defendant Burgess that she was] unaware of any access to devices[.]
(Mar. Supp. Compl. ¶ 29). Plaintiff filed a grievance with both the superintendent and Defendant Edwards in or about August 30, 2017, to no avail. (Id. ). Plaintiff alleges here that his "inability to utilize the law library [caused him to] suffer[ ] injuries" because it impeded his ability to advocate for himself in his legal proceedings
Copies of Plaintiff's requests for reasonable accommodations of his disability at the law library are attached to his pleadings. The first request is contained in an Inmate Grievance and Request Program ("IGRP") statement form dated July 20, 2017, wherein Plaintiff stated: "I am requesting a device to use inside of [the] law library to read ... documents because I'm unable to see due to being legally blind." (Compl., Ex. 1 at 4). Also attached is a response, dated August 18, 2017, which states: "Please be advised that the Disability Rights Coordinator for Inmates has received your request for an accommodation ... you will be informed of a determination as soon as possible." (Id. at 5).
The second grievance, an appeal to the Warden of NIC dated August 18, 2017, states:
I have been informed that the assistive devices [were] in the law library, however the law library officer has stated that I'm unable to use it and I've been denied reasonable accommodations Under the American with Disabilities Act, the ADA coordinator was suppose[d] to assure that I got reasonable accommodations, and suppose[d] to respond better to request for it[.]
(Compl., Ex. 1 at 6).
Plaintiff's third grievance, an appeal to the DOC dated August 31, 2017, states:
There is no assistive device in the law library that "legally Blind" and visually impaired inmates can utilize[ ], I was told that there was some in the law library then told by the law library officer BURGESS that I couldn't utilize the assistive devices which she discriminated against me in regards to programs and services available.... I would like to know exactly what reasonable accommodations purchases were made ... because there [are] no assistive devices in the law library and I was denied from utilizing them by law library officer Burgess.
(Compl., Ex. 1 at 7-8).
Among the exhibits to Plaintiff's December Supplemental Complaint is a different IGRP form, dated August 13, 2017, in which Plaintiff grieves the lack of reasonable accommodations in his housing:
I am "legally blind" and requesting reasonable accommodations of a mobility guide to assist me with my daily living[. T]here is suppose[d] to be two inmates employed to assist legally blind and visually impaired inmates with their daily living however the disability Dorm is closed down and in Dorm 2 they have dis[a]bled inmates with inmate assistants available].] I need help. [A]lso I am being transported via regu[lar] bus when I [am supposed] to be transported by para van transport with the shoulder strap, in accordance with the "ADA" requirements.
(Dec. Supp. Compl., Ex. D).
Separately, Plaintiff alleges that the NIC facility lacked several accommodations for inmates in wheelchairs or who have difficulty hearing, such as non-slip shower mats and wheelchair-accessible exits, handrails, and proper ramps. (Compl. ¶¶ 28-29, 42-58). Plaintiff also alleges that he was retaliated against for filing complaints and grievances. (Id. at ¶ 77).
1. Plaintiff's Pleadings
Plaintiff commenced this action on November 30, 2017. (Dkt. # 2). He brings claims under
On March 20, 2018, Plaintiff filed the first of several supplemental factual allegations (Dkt. # 16), which he later informed the Court were not intended to replace the original Complaint (see Dkt. # 20). Given Plaintiff's pro se status, the Court will nonetheless consider the facts alleged in Plaintiff's later submissions as supplemental to his Complaint. Additional factual submissions were filed on April 16, 2018 (Dkt. # 25), and May 3, 2018 (Dkt. # 26).
On December 19, 2018, after briefing on the motion to dismiss had concluded, Plaintiff submitted an additional set of factual allegations, entitled "Supporting Evidence of Federal Claims." (Dkt. # 41). The document contains many of the same allegations, and attaches many of the same exhibits, as his prior two submissions. However, as described above, it contains an additional IGRP form from August 12, 2017, in which Plaintiff seeks a mobility guide and "para van" transportation.
2. The Instant Motion
On July 30, 2018, Defendants moved to dismiss the Complaint in its entirety. (Dkt. # 35). Plaintiff submitted a memorandum in opposition on August 13, 2018 (Dkt. # 38), and Defendants replied on October 5, 2018 (Dkt. # 39).
DISCUSSION
A. Applicable Law
When considering a motion to dismiss under Rule 12(b)(6), the court must "draw all reasonable inferences in [the non-movant's] favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief." Faber v. Metro. Life Ins. Co. ,
In light of Plaintiff's pro se status, the Court will construe his pleadings "liberally and 'interpret them to raise the strongest arguments that they suggest.' " Pabon v. Wright ,
B. Analysis
1. Plaintiff's Claims for Declaratory and Injunctive Relief Are Dismissed as Moot
As a preliminary matter, the Court considers whether any of Plaintiff's claims is moot because Plaintiff is no longer in DOC custody. "It is settled in this Circuit that a transfer from a prison facility moots an action for injunctive relief against the transferring facility. On the other hand, the transfer does not moot an action for damages." Prins v. Coughlin ,
Plaintiff acknowledges that he is "presently under the care, custody and control of ... Sullivan Correctional Facility" in Fallsburg, New York. (Pl. Opp. 1). As Plaintiff is no longer in the custody of the DOC, his claims for declaratory and injunctive relief are dismissed.
2. Plaintiff's Claims Under the ADA Survive in Part and Are Dismissed in Part
a. Pleading an Adequate Claim Under the ADA
To state a claim under the ADA, plaintiffs must show "that [i] they are 'qualified individuals' with a disability; [ii] that the defendants are subject to the ADA; and [iii] that plaintiffs were denied the opportunity to participate in or benefit from defendants' services, programs, or activities, or were otherwise discriminated against by defendants, by reason of plaintiffs' disabilities." Henrietta D. v. Bloomberg ,
"[P]laintiffs may not bring suits for money damages against individual defendants under the ADA." Askins v. New York City Transit , No. 11 Civ. 6371 (PGG),
Defendants argue for dismissal of the ADA claims against the individual Defendants on the basis that Plaintiff "cannot assert ADA claims against individual defendants." (Def. Br. 14). Defendants are correct that, to the extent that Plaintiff seeks money damages against the individual Defendants under the ADA, such claims must be, and are, dismissed. See
c. Plaintiff's ADA Claims Against the Institutional Defendants Survive in Part and Are Dismissed in Part
Plaintiff's ADA claims against the institutional Defendants for monetary damages remain to be considered. Defendants concede that Plaintiff is a "qualified individual with a disability as defined by the ADA," and that the institutional Defendants - DOC (subsumed by Defendant City of New York) and HHC - are subject to the ADA. (Def. Br. 16). However, Defendants maintain that Plaintiff has failed adequately to plead the third, denial-of-services prong of an ADA claim. (Id. ). On that prong, Plaintiff's pleadings present three categories of ADA-related allegations that the Court will address in turn: (i) failure to provide assistive devices in the law library; (ii) failure to provide accommodations with respect to Plaintiff's housing, including a mobility guide, separate housing, a longer cane, and separate busing, as well as a failure to provide free postal services; and (iii) non-compliance with ADA guidelines and alleged contempt of court.
i. Plaintiff's ADA Claim for Denial of Reasonable Accommodations in the Law Library Survives
Plaintiff alleges that he requested access to assistive devices in the law library, and that he was not provided with such devices, including specifically that Defendant Vicky Burgess denied him access to such devices. (Compl. ¶ 36; see also Pl. Opp. 14). Plaintiff filed multiple written grievances seeking access to the law library, copies of which are appended to the Complaint. (Compl. ¶ 36, Ex. 1). He also showed Defendant Burgess a letter indicating the existence of the assistive devices, all without success. (Id. at ¶ 36). Plaintiff contends that he was "unlawfully denied to utilize visual impairment devices during a critical stage of his criminal proceedings[.]" (Pl. Opp. 13).
Relatedly, Plaintiff argues that the law library "falls below any known acceptable standard" because it lacks sufficient volumes, and has "outdated software, inoperable typewriters, [and] limited employees with neither knowledgeable insight nor law experience." (Pl. Opp. 13). In Plaintiff's view, "reasonable accommodations for his visual impairment [include] devices such as
Defendants' brief initially appears to seek dismissal of all of Plaintiff's ADA claims, including his claims for denial of access to assistive devices in the law library and blind mail, on the grounds that "[Plaintiff] has not alleged that he was denied meaningful access to prison services or programs, and because he does not allege that he actually requested any particular accommodation and was subsequently denied such accommodation." (Def. Br. 16 (emphasis added) ). One page later, Defendants qualify this argument: "Plaintiff alleges that he was denied numerous accommodations.... Other than with respect to Plaintiff's allegations regarding the law library and blind mail however, Plaintiff fails to allege that he was prevented from participating in or benefitting from prison programs because of his disability." (Id. at 17). And one page after that, Defendants qualify their argument even further: "[A]part from assistive devices in the law library, nowhere in the Complaint, or any other part of his pleadings, does he allege that he actually requested the accommodations which he alleges he was denied." (Id. at 18).
Therefore, specifically as to assistive devices in the law library, the Court understands Defendants to acknowledge that Plaintiff has adequately alleged that he actually requested the accommodations he was denied. Nonetheless, Defendants argue that Plaintiff's ADA claim should fail because, in Defendants' view, Plaintiff has not adequately alleged that he was denied meaningful access to prison services or programs. (See Def. Br. 18 (asserting that Plaintiff has failed adequately to plead a denial of "meaningful access to prison services or programs" (emphasis added) ); see also id. at 19).
The Second Circuit has explored the intersection of the ADA concepts of "reasonable accommodation" and "meaningful access" in the prison context in Wright v. New York State Department of Corrections ,
The Wright Court explained the obligation of prison officials to provide meaningful access to prison programs and services:
A reasonable accommodation must provide effective access to prison activities and programs. That is, the accommodation must overcome structural impediments and non-trivial temporal delays that limit access to programs, services, and activities. An accommodation is not plainly reasonable if it is so inadequate that it deters the plaintiff from attempting to access the services otherwise available to him. In short, providing meaningful access requires just that - granting inmates meaningful participation in prison activities and programs.
Viewed through the lens of Wright , the Court finds that Plaintiff has adequately stated a claim under the ADA based on the lack of assistive devices in the law library. Plaintiff repeatedly requested, and was denied, reasonable accommodations for visually impaired persons to access the law library. These denials impeded, if not outright prevented, Plaintiff from using the law library. And the law library is a vital public service, which Plaintiff was denied the opportunity to participate in and benefit from as a result of his disability. See Pa. Dep't of Corr. v. Yeskey ,
ii. Certain of Plaintiff's Housing-Related ADA Claims Survive
Plaintiff also argues a variety of housing-related ADA claims, including claims that he "remain[ed] in general population, without any mobility guide, blind stick, [or] social worker, while forced to court without any handicap accessibility transportation." (Pl. Opp. 6; see
As to most of these allegations, Defendants contend that the Complaint fails to allege that Plaintiff was denied an opportunity to participate in, or benefit from, programs and services due to his disability. (See Def. Br. 17 (arguing the Complaint does not allege that Plaintiff was "prevented from accessing any prison service because of his disability, or because he was not provided an accommodation") ).
Defendants are correct that "to be denied a reasonable accommodation, an individual must first request that accommodation." (Def. Reply 9).
As to the claims that remain, the Court considers the extent to which denial of these accommodations may have impeded Plaintiff's "opportunity to participate in or benefit from defendants' services, programs, or activities[.]" Henrietta D. ,
On this record, we cannot determine that DOCCS's accommodations are plainly reasonable and effectively provide [the plaintiff] meaningful access to prison programs, benefits, and services because there is evidence that indicates the mobility assistance program fails to allow [the plaintiff] to move freely throughout the DOCCS facility and discourages his participation in prison activities.
The same cannot be said for Plaintiff's requests for accommodations in transportation. Plaintiff does not contend that he was denied access to any prison programs or services because of his transportation on general population buses; that his ability to access any programs or services was in any way impaired because of the use of these buses; or that he was in any way dissuaded from using the general population buses. Instead, Plaintiff states only that he was transported to these programs and services in a regular bus, rather than a "para van transport with the shoulder strap." (Dec. Supp. Compl. at 30). These allegations do not suffice to state a claim under the ADA or the Rehabilitation Act.
iii. Plaintiff's Claims for Non-Compliance with ADA Guidelines and Contempt of Court Are Dismissed
As a third category of ADA claims, Plaintiff alleges that DOC has failed to comply generally with ADA Guidelines and is in contempt of various consent decrees and settlement agreements. (Compl. ¶¶ 41-59, 94-97). To the extent Plaintiff raises them as civil rights violations, the claims fail. "The remedy for breach of [a consent decree] is a suit for breach of contract or enforcement of the decree through judicial sanctions, including contempt, not an action under § 1983."
These claims also fail under the ADA and the Rehabilitation Act. As Defendants observe, Plaintiff "fails to allege that he suffered any injury related to the alleged" breaches of the consent decrees and settlement agreements, and, indeed, "fails even to allege that the noncompliance issues ... pertained to his disability or that his disability required accommodations in these contexts." (Def. Br. 20). The ADA Guidelines referenced in Plaintiff's pleadings primarily concern wheelchair accessibility and hearing accessibility. (See, e.g. , Compl. ¶¶ 37-59, 97). Plaintiff has not alleged that he used a wheelchair, or that he required accommodations for a hearing impairment, at any point during the relevant period. Accordingly, to the extent that Plaintiff's claims of non-compliance with ADA Guidelines address any accommodations other than those for which he was eligible as a result of his disability, those claims are also dismissed.
3. Plaintiff's Constitutional Claims Are Dismissed
a. Plaintiff's First Amendment Claim for Denial of His Right of Access to the Courts Is Dismissed
The Court now turns to Plaintiff's constitutional claims, brought under
Plaintiff's claims of law library deficiencies are also presented as deprivations of his First Amendment right to access the courts. In Bounds v. Smith , the Supreme Court held that prisoners' "constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law."
demonstrate that the alleged shortcomings in the library ... hindered his efforts to pursue a legal claim. He might show, for example, that a complaint he prepared was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison's legal assistance facilities, he could not have known. Or that he had suffered arguably actionable harm that he wished to bring before the courts, but was so stymied by inadequacies of the law library that he was unable even to file a complaint.
Lewis v. Casey ,
Moreover, the right of access extends solely to certain types of legal claims - specifically, "direct appeals from the convictions for which [the inmates]
"[T]he right to counsel and the right of access to the courts are interrelated, since the provision of counsel can be a means of accessing the courts. However, the two rights are not the same." Benjamin v. Fraser ,
Here, Plaintiff argues that "his inability to utilize any devices within the facility law library so prejudiced him in meaningful access to the courts[.]" (Pl. Opp. 13, 16-17). Plaintiff claims as well that the denial of free postage for blind mail also violated his right of access to the courts. (Id. at 4, 13-17). The following sections of Plaintiff's pleadings, liberally construed, provide additional allegations relevant to his access-to-courts claim:
• Plaintiff's March Supplemental Complaint alleges that, in addition to his difficulty accessing the law library, Plaintiff's own counsel failed to provide him with discovery documents,and fabricated criminal charges against him. (Mar. Supp. Compl. ¶¶ 2, 24-25). Because of the law library deficiencies, Plaintiff was rendered unable "to obtain documents in [his] criminal proceedings aside from what his defense attorney verbally explain[ed.]" (Id. at ¶ 23). As a result, Plaintiff alleges that he was unable "to examine documents[,] file motions, or unable to receive discovery[.]" (Id. at ¶ 27). "Plaintiff experience[d] denial in receiving discovery though [his] entire proceedings[.]" (Id. at ¶ 36).
• Plaintiff's December Supplemental Complaint adds that the denial of reasonable accommodations in the law library resulted in a "denial of meaningful access to the courts during a critical stage of his criminal proceedings weeks before hearing and trial." (Dec. Supp. Compl. at 6).12
Plaintiff's briefing identifies three purported injuries caused by the alleged denial of access to the law library. First , it "hinder[ed Plaintiff] in being effective resulting in accept[ance] of [a] guilty plea ... [that] has now been render[ed] as not knowingly, voluntarily and intelligently accepted." (Pl. Opp. 13).
Second , Plaintiff complains that his motion to set aside his sentence as illegal and the product of ineffective representation, which motion was filed in state court pursuant to New York Penal Law § 440.20 (the "440.20 Motion"), "was denied due to failure to controvert these allegations during criminal proceedings which plaintiff challenged due to his inability to see and properly research his criminal proceedings [.]" (Pl. Opp. 15 (emphasis added) ). In support, Plaintiff attaches a copy of the 440.20 Opinion issued on May 30, 2018, from the trial court in Kings County, denying Plaintiff's 440.20 Motion. (Id. , Ex. A (the "440.20 Opinion") ).
Third , Plaintiff claims that his difficulties accessing the law library "denied [him] the opportunity to research important constitutional violations now raised in motions." (Pl. Opp. 14). As to this third purported injury, Plaintiff's March Supplemental Complaint presents additional relevant allegations regarding an earlier lawsuit that Plaintiff filed pursuant to
[Plaintiff's] claim was dismissed on the grounds that it was not filed or served within the time frame prescribed.... However, it was due to the delay of the Office of the District Attorney, in providing the video tape, coupled with the Public Defenders' derelict of duty in obtaining the video in a timely manner [that] plaintiff was unable to file the 1983 claim before the Court. This denial of the 1983 action on statute of limitations ground clearly is an injury caused by the parties. This inability to utilize the law library [caused Plaintiff the injury of] not knowing that the courts may not grant such applications unless [he moved for] tolling[.]
(Mar. Supp. Compl. ¶¶ 32-33). Plaintiff attaches a letter, dated July 7, 2017, in which he advised the Department of Justice ("DOJ") that he was facing a charge of robbery, and that his public defender "[i]nform[ed] [the Civilian Complaint Review Board, or "C.C.R.B."] not to [discuss] my
Defendants make two arguments in opposition. To start, they assert that the 440.20 Opinion undermines Plaintiff's allegations of injury in the making of his 440.20 Motion - both because it establishes that Plaintiff submitted the motion on March 29, 2018, long after Plaintiff had been transferred from DOC custody on September 14, 2017, and because it dismissed Plaintiff's motion on the merits rather than on procedural grounds. (Def. Reply 6). The Court concurs, and observes as well that the state-court judge who issued the 440.20 Opinion found no infirmities in Plaintiff's guilty plea proceeding, while also finding that Plaintiff's counsel was effective for purposes of the Sixth Amendment and the New York State Constitution. (Pl. Opp., Ex. A). See generally
Defendants' second argument is that Plaintiff's access-to-courts claims "are without merit because it is clear that Plaintiff was represented by counsel at all times relevant to the instant action." (Def. Reply 6). Further, Defendants argue that "Plaintiff does not allege that Defendants in any way interfered with his access to counsel , he only alleges that he was experienc[ing] difficulties using the law library." (Id. ). The record only partially supports Defendants' position.
The 440.20 Opinion establishes that Plaintiff received the effective assistance of counsel during his criminal proceedings for purposes of the Sixth Amendment and the New York Constitution. (Pl. Opp., Ex.
In consequence, the Court considers whether impediment of a § 1983 claim for assault by arresting police officers qualifies an injury that can establish standing for a claim for denial of access to the courts. The Court finds that it does not. Lewis limits standing for such claims to denial of the tools that "inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement." Lewis ,
While it is not necessary to its decision, the Court pauses to note one further flaw in Plaintiff's access-to-court claims concerning his § 1983 action: they are demonstrably false. Plaintiff claims that his § 1983 action was dismissed as untimely. (See Mar. Supp. Compl. ¶¶ 32-33). It was not. Plaintiff filed his complaint in this District on or about August 22, 2017, and it was transferred to the United States District Court for the Eastern District of New York on venue grounds on or about August 25, 2017. (See Walker v. Raja , No. 17 Civ. 6434 (CM) (S.D.N.Y.), Dkt. # 1, 4; Walker v. Raja , No. 17 Civ. 5202 (PKC) (LB) (E.D.N.Y.) ). According to the E.D.N.Y. docket, the case was stayed for several months while the C.C.R.B. completed an investigation into claims of officer misconduct. (See, e.g. , No. 17 Civ. 5202, Dkt. # 36 (stay order entered April 18, 2018), 51 (order lifting stay entered August 7, 2018) ). According to the most recent docket entries, the parties are discussing potential motion practice or trial. (See, e.g. , No. 17 Civ. 5202, Dkt. # 83 (defendants' letter motion dated February 1, 2019, regarding
For all of the reasons discussed in this section, Plaintiff's claims of deprivation of his First Amendment right to access the courts are dismissed.
b. Plaintiff's Fourteenth Amendment Claims Are Dismissed
i. Plaintiff Has Not Stated a Claim for Deliberate Indifference to Serious Medical Needs
Plaintiff also raises several claims under the Fourteenth Amendment, beginning with challenges to the medical care he received at Rikers Island. Courts in the Second Circuit analyze a pretrial detainee's claims of unconstitutional conditions of confinement, such as inadequate medical care, under the Fourteenth Amendment's Due Process Clause rather than the Eighth Amendment's Cruel and Unusual Punishment Clause. Darnell v. Pineiro ,
A claim for inadequate medical care requires a showing of "deliberate indifference to ... serious medical needs," which in turn requires proof of two elements: "medical need" and "deliberate indifference." Smith v. Carpenter ,
The Second Circuit has clarified that the second element, "deliberate indifference," though often characterized as "subjective," is better understood as an element simply analyzing mens rea because it is "defined objectively." Darnell ,
Plaintiff alleges inadequate medical care in the forms of failure "to employ
Plaintiff's pleadings fail to allege any unreasonable denials of proper medical care, or any deterioration or worsening of any of Plaintiff's conditions, that resulted from a denial of proper medical care. Plaintiff does not allege that he was ever denied medical treatment (although the Court wishes the delay in receiving treatment were shorter than that alleged), and "does not allege facts showing any negative consequence resulting from any alleged inadequate or delayed medical treatment." (Def. Reply 2). To the contrary, the Complaint indicates that Plaintiff was diagnosed with advanced glaucoma prior to his arrest, and that, while in custody, he received care for this condition from a specialist, while receiving frequent medical treatment for the injuries to his finger and leg. (See Compl., Ex. 1 at 16-17). As a result, Plaintiff has failed adequately to plead deliberate indifference to serious medical needs under the Fourteenth Amendment.
ii. Plaintiff Has Not Stated a Claim for Violation of DOC Internal Procedures
Plaintiff also tries, without success, to establish a constitutional violation from DOC's alleged failure to abide by its own internal policies and procedures. "[T]he failure to follow a DOCS Directive or prison regulation does not give rise to a federal constitutional claim." Rivera v. Wohlrab ,
iii. Plaintiff Has Not Stated a Claim Relating to His Conditions of Confinement at Rikers Island
As a third argument under the Fourteenth Amendment, Plaintiff claims that Defendants failed to protect him while he was detained at Rikers Island. It "is a Fourteenth Amendment violation where [an] officer acted with deliberate indifference to a substantial risk of serious harm to an inmate." Rosen v. City of New York ,
Here, Plaintiff argues that unsafe conditions of confinement deprived him of his "constitutional right to be reasonably protected from constant threats of violence and sexual assault from other inmates[.]" (Pl. Opp. 11). He alleges that corrections officers "[f]ailed to reasonably protect him from constant threats of violence and exercise preventive measures from potential assaults from other inmates while legally blind being housed inside general population housing." (Id. ). Plaintiff argues that other inmates, who were gang members, prevented him from using the bathroom or the phone, caused him "extreme difficulty" in showering, navigating his environment, and identifying persons around him, and stole his personal belongings. (Id. ). And Plaintiff contends that these inmates "received cooperation from individual correction officers[.]" (Id. ).
Defendants correctly observe that Plaintiff has failed to show a "substantial risk of serious harm because Plaintiff has not alleged any facts showing an imminent or actual harm, physical violence, violence of any kind, or any threats more than mere verbal harassment." (Def. Br. 10). It is true, as Plaintiff claims and Defendants concede, that Plaintiff "does not need to wait until he is actually assaulted before obtaining relief." (Id. (citing Woodhous v. Virginia ,
c. Plaintiff's Retaliation Claims Under the First and Fourth Amendments Are Dismissed
Plaintiff fares no better recasting certain of his claims as ones for retaliation. To state a First Amendment claim for retaliation, a Plaintiff must show "[i] that the speech or conduct at issue was protected, [ii] that the defendant took adverse action against the plaintiff, and [iii] that there was a causal connection between the protected speech and the adverse action." Dolan v. Connolly ,
Plaintiff alleges that, "[i]n retaliation for [his] complaints, grievances defendants denied him handicapped housing, denied him reasonable accommodations, increasingly hindered [his] access to handicap housing and assistance devices and auxiliary aids, and adequate medical care." (Compl. ¶ 77). This bare assertion, without more, does not adequately state a claim for First Amendment retaliation. (See Def. Br. 11-12).
In sum, Plaintiff has failed to state a claim for constitutional violations under the First or Fourteenth Amendments. And while Plaintiff suggested a Fourth Amendment claim in his Complaint (see Compl. ¶¶ 11, 75), there are no allegations regarding same in any of his pleadings, and his opposition memorandum does not mention the Fourth Amendment (see generally Pl. Opp.). The Court does not consider Plaintiff to have alleged a Fourth Amendment claim. Because Plaintiff has failed to plead a viable claim under
4. Plaintiff's Claims for Compensatory Damages Under the PLRA Are Dismissed
Section 803(d)(e) of the Prison Litigation Reform Act of 1996 (the "PLRA") mandates that "[n]o 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). In this Circuit, plaintiffs may bring an action under the PLRA for punitive damages for purely mental or emotional injury. Thompson v. Carter ,
Defendants are correct that Plaintiff has failed to allege "any physical injury as a result of the alleged conditions of confinement, the alleged failure to protect, the alleged delay in medical treatment or any other constitutional tort." (Def. Br. 21). Therefore, to the extent Plaintiff seeks compensatory damages under the PLRA, his claims are dismissed.
5. The Court Continues to Exercise Jurisdiction over Plaintiff's State-Law Claims
As Defendants point out, the Court has discretion to decline to exercise
6. The Court Will Not Permit Plaintiff to Amend His Complaint Further
Plaintiff has not sought leave to amend, and the Court will not grant such leave sua sponte. In recognition of Plaintiff's pro se status, the Court has effectively permitted him to amend his Complaint four times by accepting and considering three supplemental pleadings and an opposition memorandum of law that included updated factual, as well as legal, arguments. Cf. Ganley v. City of New York ,
CONCLUSION
For the reasons stated in this Opinion, Defendants' motion to dismiss is GRANTED in part and DENIED in part. Plaintiff's claims under the ADA and the Rehabilitation Act for assistive devices, a sighted guide, and changes in housing remain viable. His other claims are dismissed with prejudice. The Clerk of Court is directed to terminate the motion at docket entry 35.
Per the Court's individual rules, the parties are ORDERED to meet and confer and submit a proposed case management plan to the Court on or before March 15, 2019 .
SO ORDERED.
Notes
In consideration of Plaintiff's pro se status, the Court has reviewed several of Plaintiff's submissions for factual allegations, including his complaint (the "Complaint" or "Compl." (Dkt. # 2) ), as well as various supplemental pleadings filed on this Court's electronic case filing system on March 20, 2018 (Dkt. # 16 (the "March Supplemental Complaint" or "Mar. Supp. Compl.") ), April 16, 2018 (the "April Supplemental Complaint" or "Apr. Supp. Compl." (Dkt. # 25) ), May 3, 2018 (the "May Supplemental Complaint" or "May Supp. Compl." (Dkt. # 26) ), and December 19, 2018 (the "December Supplemental Complaint" or "Dec. Supp. Compl." (Dkt. # 41) ). Several of these documents were filed in response to pre-motion and motion-related submissions by Defendants; however intended, the Court believes them to be best construed as supplements to the Complaint. For convenience, the Court refers to Defendants' memorandum of law in support of their motion to dismiss as "Def. Br." (Dkt. # 37), to Plaintiff's opposition to the motion to dismiss as "Pl. Opp." (Dkt. # 38), and to Defendants' reply as "Def. Reply" (Dkt. # 39).
The New York City Department of Correction is a nonsuable entity, while the Health and Hospitals Corporation ("HHC") is a suable entity. See N.Y. City Charter ch. 17, § 396 ("All actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law.");
Plaintiff does not explain how he came to be housed initially in SRG. From Plaintiff's submissions, and from documents referenced in or attached as exhibits to those submissions, the Court understands that Plaintiff was then being detained at Rikers Island as a result of two indictments charging him with robbery, burglary, and other offenses alleged to have been committed in September 2016 and January 2017. (See Pl. Opp., Ex. A (opinion denying motion pursuant to
For ease of reference, the Court will at times repeat Plaintiff's nomenclature of "handicap housing" to refer to housing for people with disabilities at Rikers Island.
Plaintiff does not indicate whether his law library claims pertain to the libraries at OBCC, NIC, or both. From the documents attached to Plaintiff's pleadings, the Court understands the claims to pertain to the NIC library. Identifying the precise facility or facilities to which Plaintiff's claims pertain is unnecessary for the Court's evaluation of those claims at this stage of the proceeding.
Also attached to the Complaint is Plaintiff's completed "request for reasonable accommodations for inmates with sensorial disabilities form," dated October 2, 2017. (Compl., Ex. 1 at 18). However, as the form makes clear, this request was submitted to officials at the Sullivan Correctional Facility, where Plaintiff is currently incarcerated, and not Rikers Island.
Plaintiff's claims under the ADA and the Rehabilitation Act are evaluated using the same standards. See Henrietta D. v. Bloomberg ,
Defendants understandably focus on the Complaint, not realizing that the Court would accept Plaintiff's later submissions as supplemental pleadings. To be fair, the Court has considered Defendants' challenges to the entirety of Plaintiff's pleadings.
Defendants rely on Colon v. New York State Department of Corrections and Community Supervision , which they argue dismissed an ADA claim for failure to allege that the accommodation was actually requested and denied. (Def. Reply 9). This is not an entirely accurate characterization of the holding in Colon , which, more precisely described, dismissed the plaintiff's complaint for failure to allege the denial of an accommodation that was more reasonable than the one actually provided. Colon v. N.Y.S. State Dep't of Corr. & Cmty. Supervision , No. 15 Civ. 7432 (NSR),
In making this determination, the Court has considered both the grievance forms that Plaintiff attached to his pleadings, as well as any allegations in Plaintiff's pleadings that he requested a particular accommodation (as opposed to allegations that Plaintiff was not provided proactively with accommodations that he did not request, such as corrective lenses or Braille courses).
The Court observes, for example, that Plaintiff's requests for "handicap housing" appear to have been denied because of the absence of available housing. The Court is also unaware of any available accommodations provided in the medical units at NIC, or how such accommodations would compare with dedicated housing for disabled inmates. Such issues will undoubtedly be fleshed out in discovery.
Plaintiff's April Supplemental Complaint contains a more fundamental claim that appointed counsel are not trained properly to represent visually impaired criminal clients. (See, e.g. , Apr. Supp. Compl. ¶¶ 1-2). This challenge does not fit within any of the legal claims raised by Plaintiff in his initial Complaint, and it will not be addressed by the Court.
The doctrine of issue preclusion (also known as collateral estoppel) relitigation of an issue when "[i] the identical issue necessarily was decided in the prior action and is decisive of the present action, and [ii] the party to be precluded from relitigating the issue had a full and fair opportunity to litigate the issue in the prior action." Evans v. Ottimo ,
The related doctrine of claim preclusion requires "[i] a final judgment on the merits, [ii] by a court of competent jurisdiction, [iii] in a case involving the same parties or their privies, and [iv] involving the same cause of action." EDP Med. Computer Sys., Inc. v. United States ,, 624 (2d Cir. 2007) (internal citation omitted); see also Marcel Fashions Grp., Inc. v. Lucky Brand Dungarees, Inc. , 480 F.3d 621 , 108 (2d Cir. 2015). 779 F.3d 102
To the extent that Plaintiff is referencing a failure on his part to file a notice of claim within the 90-day window specified in
Indeed, the assertion undercuts the remainder of Plaintiff's pleadings: Plaintiff has alleged that these deficiencies were present from the very beginning of his detention at Rikers Island, and not that they were precipitated or aggravated by any protected speech on Plaintiff's part.
The Second Circuit has not specifically addressed the interplay between the ADA and the PLRA, but other Circuits have concluded that the ADA does not provide an exception to the PLRA's requirement of physical harm. See generally Flaming v. Alvin Cmty. Coll. , No. CV H-17-1074 (AHB),