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analyzing subjective prong noting “plaintiff claims that the defendants ‘all knew [the backed-up toilet in plaintiff's cell] was an on going problem, and did nothing about it’ ”
Summary of this case from Florio v. Deputy of Sec. Ms. Canty & Corr. Officer Ms. LeachOpinion
08 Civ. 2195 (RJS)(HBP)
04-29-2011
ANGELO ORTIZ, Plaintiff, v. DEPARTMENT OF CORRECTION OF THE CITY OF NEW YORK, et al., Defendants.
Copies mailed to: Mr. Angelo Ortiz DIN 07-A-6984 Mohawk Correctional Facility 6100 School Road P.O. Box 8451 Rome, New York 13442-8451 Lesley B. Mbaye, Esq. Assistant Corporation Counsel City of New York 100 Church Street New York, New York 10007
REPORT AND RECOMMENDATION
: TO THE HONORABLE RICHARD J. SULLIVAN, United States District Judge,
I. Introduction
Plaintiff Angelo Ortiz, a former inmate on Rikers Island, commenced this action pro se against the Department of Correction of the City of New York ("NYCDOC") and five individual defendants pursuant to 42 U.S.C. § 1983 ("Section 1983"). Ortiz alleges he was subjected to unsanitary conditions in violation of his Eighth Amendment right against cruel and unusual punishment. On consent, the NYCDOC was dismissed from this action on August 10, 2010 (Docket Item 51).
By notice of motion dated September 22, 2010 (Docket Item 57), individual defendants Correction Officer Tamika Hernandez, Correction Officer Kaia Sweeting, Correction Officer Petchula Harris, Deputy Warden Yolanda Canty and Captain Kelly Lester move to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, I respectfully recommend that the motion be granted. II. Facts
The facts set forth herein are drawn from plaintiff's second amended complaint (Second Amended Complaint, dated May 2, 2009 (Docket Item 30)) unless otherwise noted.
Plaintiff's claim arises from allegedly unsanitary conditions he was subjected to while in the custody of the NYCDOC and incarcerated at Rikers Island. On three occasions between December 3 and December 14, 2007, the toilet in plaintiff's cell overflowed and contaminated the cell with the products of elimination. The flooding was apparently the result of a drainage problem that the NYCDOC was attempting to rectify; plaintiff was told a plumber had been called.
On December 3, 2007, plaintiff noticed that his toilet was overflowing as soon as he was transferred into his cell in the 11th Lower Housing Unit. He alerted Hernandez, who told plaintiff that he "better get use [sic] to it" and that this had been going on for "the long's," which I take to mean a long time. When plaintiff asked to be moved to a different cell, Hernandez told him that he must wait until the plumber fixed the drain. Plaintiff also noticed human waste coming out of the drain outside his cell. At approximately 4 p.m. that day, plaintiff was moved. After the flooding, plaintiff was not given appropriate equipment (an unspecified "mask" and gloves) to clean his cell. He told the deputy in charge that he was sick from the smell and that he had "a tumor in [his] head." He was told to go sit in the dayroom.
Plaintiff handwrote his second amended complaint on a form complaint. He also handwrote his response to the motion to dismiss. Although plaintiff frequently used improper grammar, his submissions are understandable.
On December 8, 2007, plaintiff awoke to find that another sewage overflow had flooded his cell; the sewage touched his feet. His entire unit was sent to the gym for four hours. When he returned to his cell, he again cleaned his cell without a mask or gloves.
On the evening of December 13, 2007, plaintiff's cell flooded again due to a sewage overflow, and he slept in the dayroom on chairs and tables. The next day, when plaintiff asked a captain if he could be moved, another captain was called. The second captain handcuffed plaintiff, told him to keep quiet and moved him to intake, where plaintiff slept on the floor. Plaintiff was then relocated to another part of the prison and later moved to another facility. He never again slept in his cell in the 11th Lower Housing Unit.
Plaintiff claims he suffered severe headaches and dizziness as a result of the flooding. He seeks $100,000 in damages for pain and suffering, emotional stress and neglect.
III. Analysis
A. Standards Applicable to a Motion to Dismiss
The standards applicable to a motion to dismiss pursuant to Rule 12(b)(6) are well-settled and require only brief review.
When deciding a motion to dismiss under Rule 12(b)(6), [the court] must accept as true all well-pleaded factual allegations of the complaint and draw all inferences in favor of the pleader. See City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 493, 106 S. Ct. 2034, 90 L. Ed. 2d 480 (1986); Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 97 S. Ct. 2490, 53 L. Ed. 2d 557 (1977) (referring to "well-pleaded allegations"); Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). "'[T]he complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.'" Int'l
Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991)). The Court also may consider "matters of which judicial notice may be taken." Leonard T. v. Israel Discount Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999) (citing Allen v. WestPoint-Pepperill, Inc., 945 F.2d 40, 44 (2d Cir. 1991)). In order to avoid dismissal, a plaintiff must do more than plead mere "[c]onclusory allegations or legal conclusions masquerading as factual conclusions." Gebhardt v. Allspect, Inc., 96 F. Supp. 2d 331, 333 (S.D.N.Y. 2000) (quoting 2 James Wm. Moore, Moore's Federal Practice ¶ 12.34[a] [b] (3d ed. 1997)).Hoffenberg v. Bodell, 01 Civ. 9729 (LAP), 2002 WL 31163871 at *3 (S.D.N.Y. Sept. 30, 2002) (Preska, D.J.); see also In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007); Johnson & Johnson v. Guidant Corp., 525 F. Supp. 2d 336, 345-46 (S.D.N.Y. 2007) (Lynch, D.J.).
The Supreme Court has clarified the proper mode of inquiry to evaluate a motion to dismiss pursuant to Rule 12(b)(6), which uses as a starting point the principle that "[a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a).
[I]n Bell Atl[antic] Corp. v. Twombly, 550 U.S. 544 (2007), the Court disavowed the well-known statement in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)[,] that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." 550 U.S. at 562. Instead, to survive a motion to dismiss under Twombly,
a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." Id. at 570.Talley v. Brentwood Union Free Sch. Dist., 08 Civ. 790, 2009 WL 1797627 at *4 (E.D.N.Y. June 24, 2009).
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . . 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 . . . . Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact) . . . .Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citations, internal quotations and alterations omitted).
In evaluating a motion under Rule (12)(b)(6), the court must determine whether the plaintiff has alleged any facially plausible claims. See Smith v. NYCHA, No. 09-4473-CV, 2011 WL 564294 at *1 (2d Cir. Feb. 18, 2011) (unpublished). A claim is plausible when its factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citations omitted). "Where a complaint pleads facts that are merely consistent with a defen- dant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Ashcroft v. Iqbal, supra, 129 S. Ct. at 1949 (internal quotations omitted). Accordingly, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not 'show[n]' -- 'that the pleader is entitled to relief.'" Ashcroft v. Iqbal, supra, 129 S. Ct. at 1950, quoting Fed.R.Civ.P. 8(a)(2).
"[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions," however. Ashcroft v. Iqbal, supra, 129 S. Ct. at 1949; Reed Const. Data Inc. v. McGraw-Hill Cos., Inc., 09 Civ. 8578, 2010 WL 3835196 at *3 (S.D.N.Y. Sept. 14, 2010) (Sweet, D.J.). As a result, "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, supra, 129 S. Ct. at 1950.
Nevertheless, where, as here, a plaintiff proceeds pro se, the complaint must be liberally construed to raise the strongest claims the allegations suggest. Sims v. Blot, 534 F.3d 117, 133 (2d Cir. 2008); Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Tracy v. Freshwater, 623 F.3d 90, 100-04 (2d Cir. 2010) (observing that the requirement of "special solicitude" includes liberal construction of papers, "relaxation of the limitations on the amendment of pleadings," leniency in enforcing procedural rules, and "deliberate, continuing efforts to ensure that a pro se litigant understands what is required of him.") (citations omitted); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
B. Exhaustion Requirement
The Prison Litigation Reform Act ("PLRA") provides, in pertinent part, that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); Johnson v. Rowley, 569 F.3d 40, 45 (2d Cir. 2009); Handberry v. Thompson, 446 F.3d 335, 341 (2d Cir. 2006); Oates v. City of New York, 02 Civ. 5960 (GEL), 2004 WL 1752832 at *1 (S.D.N.Y. Aug. 4, 2004) (Lynch, D.J.). However, while "the PLRA establishes a mandatory exhaustion requirement, it does not create a jurisdictional predicate to our ability to hear the appeal." Handberry v. Thompson, supra, 446 F.3d at 342, citing Richardson v. Goord, 347 F.3d 431, 434 (2d Cir. 2003). Thus, "[t]he failure to exhaust available administrative remedies is an affirmative defense . . . [that] is waiveable." Handberry v. Thompson, supra, 446 F.3d at 342, quoting Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004); accord Johnson v. Rowley, supra, 569 F.3d at 45; Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004); Hobson v. Fischer, 10 Civ. 5512 (SAS), 2011 WL 891314 at *2 n.22 (S.D.N.Y. Mar. 14, 2011) (Scheindlin, D.J.); Banks v. Stewart, 08 Civ. 7463 (RJS)(THK), 2010 WL 2697075 at *2 (S.D.N.Y. July 6, 2010) (Sullivan, D.J.) (adopting Report and Recommendation), quoting Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir. 2006).
Defendants do not argue that plaintiff failed to exhaust his administrative remedies. Therefore, I conclude that defendants have waived this defense.
C. Standards Applicable to Section 1983 Claims
Section 1983 imposes liability on individuals who, while acting under the color of state law, violate an individual's federally-protected rights. Perkins v. Brown, 285 F. Supp. 2d 279, 283 (E.D.N.Y. 2003); Johnson v. Bendheim, 00 Civ. 720 (JSR), 2001 WL 799569 at *5 (S.D.N.Y. July 13, 2001) (Rakoff, D.J.). Plaintiff alleges that defendants violated his Eighth Amendment right against cruel and unusual punishment by subjecting him to the unsanitary conditions of repeated toilet overflows.
A jailed individual is protected by the United States Constitution against deliberate indifference to conditions that pose a substantial risk of serious harm to his physical well-being. If the individual is a sentenced prisoner, the source of protection is the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 828 (1994) (citations omitted). If the individual is a pretrial detainee, the source of protection is the Due Process Clause of the Fourteenth Amendment. Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996). It is unclear whether plaintiff was a pretrial detainee or was serving a sentence at the time of the events alleged in the complaint, but this ambiguity is of no moment because the Fourteenth Amendment provides substantially the same protection to pretrial detainees that the Eighth Amendment provides to sentenced prisoners. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979); Weyant v. Okst, supra, 101 F.3d at 856; Bryant v. Maffucci, 923 F.2d 979, 983 (1991); see also Caiozzo v. Koreman, 581 F.3d 63, 70 (2d Cir. 2009) ("We have often applied the Eighth Amendment deliberate indifference test to pre-trial detainees bringing actions under the Due Process Clause of the Fourteenth Amendment." (quoting Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000)). Moreover, "[b]ecause the due process rights of pretrial detainees are 'at least as great as the Eighth Amendment protections available to a convicted prisoner,' and the same standard applies, cases cited that refer to the Eighth Amendment are thus applicable to the conditions of confinement claims alleged here." Pine v. Seally, No. 9:09-CV-1198 (DNH/ATB), 2011 WL 856426 at *3 n.12 (N.D.N.Y. Feb. 4, 2011), quoting City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).
The Eighth Amendment prohibits "cruel and unusual punishments." In Wilson v. Seiter, 501 U.S. 294, 296-302 (1991), the United States Supreme Court addressed an inmate's claim that prison conditions violated the Eighth Amendment's prohibition against cruel and unusual punishment and noted that "[t]he Constitution . . . 'does not mandate comfortable prisons,' . . . and only those deprivations denying 'the minimal civilized measure of life's necessities,' . . . are sufficiently grave to form the basis of an Eighth Amendment violation." Wilson v. Seiter, supra, 501 U.S. at 298, quoting Rhodes v. Chapman, 452 U.S. 337, 347, 349 (1981); Salahuddin v. Goord, 467 F.3d 263, 267 (2d Cir. 2006).
In Farmer v. Brennan, supra, 511 U.S. at 834, the Supreme Court articulated a two-part test with both objective and subjective components for determining whether prison conditions violated the Eighth Amendment. "First, the deprivation alleged must be, objectively, 'sufficiently serious.'" Farmer v. Brennan, supra, 511 U.S. at 834, quoting Wilson v. Seiter, supra, 501 U.S. at 298; see also Hudson v. McMillian, supra, 503 U.S. 1, 5 (1992). For claims premised on "a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm." Farmer v. Brennan, supra, 511 U.S. at 834 (1994), citing Helling v. McKinney, 509 U.S. 25, 35 (1993).
Additionally, the Supreme Court required that "a prison official must have a 'sufficiently culpable state of mind.'" Farmer v. Brennan, supra, 511 U.S. at 834, quoting Wilson v. Seiter, supra, 501 U.S. at 297; see also Wilson v. Seiter, supra, 501 U.S. at 302-303; Hudson v. McMillian, supra, 503 U.S. at 8; Trammell v. Keane, supra, 338 F.3d at 161. In cases involving prison conditions, "that state of mind is one of 'deliberate indifference' to inmate health or safety." Farmer v. Brennan, supra, 511 U.S. at 834, quoting Wilson v. Seiter, supra, 501 U.S. at 302-03; see also Helling v. McKinney, supra, 509 U.S. at 34-35; Hudson v. McMillian, supra, 503 U.S. at 5; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Hines v. Lacy, 189 F.3d 460, 1999 WL 642915 at *3 (2d Cir. 1999) (unpublished) (internal citations omitted); Lyncee v. Jenks, 98 Civ. 3638 (RCC), 2000 WL 343893 at *2-*3 (S.D.N.Y. Mar. 31, 2000) (Casey, D.J.). An official acts with deliberate indifference when she "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." Farmer v. Brennan, supra, 511 U.S. at 837; see also Wilson v. Seiter, supra, 501 U.S. at 298-302 (1991); Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). "The subjective element requires a state of mind that is the equivalent of criminal recklessness . . . ." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).
A Section 1983 claim will not lie for prison conditions that are merely unpleasant. However, chronic exposure to human waste will give rise to a colorable claim. In Gaston v. Coughlin, 249 F.3d 156, 165-66 (2d Cir. 2001), the Second Circuit reinstated an inmate's Eighth Amendment claim against two defendants where the area in front of the inmate's cell "was filled with human feces, urine, and sewage water" for several consecutive days. There, the Court of Appeals stated that it was "unwilling to adopt as a matter of law the principle that it is not cruel and unusual punishment for prison officials knowingly to allow an area to remain filled with sewage and excrement for days on end." Gaston v. Coughlin, supra, 249 F.3d at 166. Similarly, in LaReau v. MacDougall, 473 F.2d 974, 977-79 (2d Cir. 1972), the Second Circuit held that an inmate who spent five days in a cell that contained only a grate-covered hole in the floor for a toilet, which could only be flushed from the outside, was deprived of his Eighth Amendment rights. "Causing a man to live, eat and perhaps sleep in close confines with his own human waste is too debasing and degrading to be permitted. The indecent conditions that existed in this . . . cell seriously threatened the physical and mental soundness of its unfortunate occupant." LaReau v. MacDougall, supra, 473 F.2d at 978; see also Wright v. McMann, 387 F.2d 519, 522, 526 (2d Cir. 1967) (finding 33-day placement of prisoner in strip cell which was "fetid and reeking from the stench of the bodily wastes of previous occupants which . . . covered the floor, the sink, and the toilet," combined with other conditions, violated Eighth Amendment); Smith v. United States, No. 9:09-CV-729 (TJM/DRH), 2011 WL 777969 at *2, *11 (N.D.N.Y. Feb. 3, 2011) (Report and Recommendation), adopted by, 2011 WL 776150 (N.D.N.Y. Mar. 1, 2011) (denying motion for summary judgment where inmate alleged that officers "refused to flush the toilet or provide the inmates with toilet paper for two weeks," causing overflow of human waste to spill onto cell floor and inmate to become "nauseous and lightheaded from the odor").
Courts outside of this Circuit have reached the same result where exposure to sewage lasts for a substantial period of time. See McCord v. Maggio, 927 F.2d 844, 846-47 (5th Cir. 1991) (finding Eighth Amendment violation where inmate lived in cell for two years and slept on floor for months "into which rain water and backed-up sewage leaked"); Williams v. Adams, 935 F.2d 960, 961-62 (8th Cir. 1991) (reversing grant of summary judgment for defendants where plaintiff alleged "that the toilet in the cell did not work" and overflowed continuously "and the floor stay[ed] filthy with its wast[e]" over 13-day period); Howard v. Adkison, 887 F.2d 134, 136-38 (8th Cir. 1989) (Eighth Amendment violation sufficiently proven where inmate lived for two years in cell where walls, door and food slot "were covered with human waste," mattress was "stained with urine and human waste" and pleas for remedial measures went unanswered); McCray v. Sullivan, 509 F.2d 1332, 1336 (5th Cir. 1975) (finding conditions in isolation cells where inmates lived for as long as 21 days violated Eighth Amendment where waste "frequently" overflowed onto the floors of the cells); Looper v. Sanders, Civil No. 6:10-cv-06037, 2011 WL 861714 at *4-*5, *8 (W.D. Ark. Mar. 10, 2011) (denying defendants' motion for summary judgment where plaintiff was exposed to raw sewage for over 10 months); Jones v. Sanders, No. 08-6035, 2009 WL 2432632 at *7 (W.D. Ark. Aug. 7, 2009) (Report and Recommendation) (recommending denial of defendants' motion for summary judgment where plaintiff was exposed to raw sewage for a month and a half).
On the other hand, where exposure to such waste is intermittent or limited to a matter of hours, courts normally will not entertain such actions. "The Eighth Amendment is generally not violated . . . where unsanitary conditions are temporary." Kee v. Hasty, 01 Civ. 2123 (KMW)(DF), 2004 WL 807071 at *26 n.24 (S.D.N.Y. Apr. 14, 2004) (Freeman, M.J.) (Report and Recommendation), citing McNatt v. Unit Manager Parker, No. 3:99 Cv. 1397 (AHN), 2000 WL 307000 at *4 (D. Conn. 2000); Whitnack v. Douglas County, 16 F.3d 954, 955-58 (8th Cir. 1994) (reversing jury verdict for plaintiff and finding no violation based on 24-hour exposure to vomit in sink, dried feces on toilet seat and dried urine puddles on floor before cleaning supplies were made available); Prellwitz v. Anderson, Civil No. 07-2120 (PAM/JSM), 2007 WL 2033804 at *2-*3 (D. Minn. July 12, 2007) (granting motion to dismiss under 28 U.S.C. § 1915A(b) where waste water on cell floor lasted only three hours and odor of inoperable toilet lasted six hours); Odom v. Keane, 95 Civ. 9941 (SS), 1997 WL 576088 at *5 (S.D.N.Y. Sept. 17, 1997) (Sotomayor, D.J.) (condi- tion where toilet failed to flush between 9 p.m. and 7 a.m. for several months "does not amount to cruel and unusual punishment"); Evans v. Fogg, 466 F. Supp. 949, 950 (S.D.N.Y. 1979) (Lasker, D.J.) ("To be kept in a refuse-strewn cell for 24 hours and in a flooded cell (a condition resulting from [plaintiff's] own acts) for two days is a rough experience, but, since neither condition persisted for more than a limited period of time, it cannot be said that the condition amounted to cruel and unusual punishment.").
In Burkholder v. Newton, 116 F. App'x 358, 363 (3d Cir. 2004), the Third Circuit affirmed the dismissal of the complaint where a prisoner alleged his toilet often overflowed during a 30-day period. "It is questionable if having . . . a toilet that backs up sometimes is really an 'atypical and significant hardship . . . in relation to the ordinary incidents of prison life.'" Burkholder v. Newton, supra, 116 F. App'x at 363, quoting Sandin v. Conner, 515 U.S. 472, 484 (1995). But see DeSpain v. Uphoff, 264 F.3d 965, 971-72 (10th Cir. 2001) (reversing grant of summary judgment for defendants where plaintiff alleged that a unit-wide backup of the plumbing system lasted 36 hours); Sherman v. Gonzalez, No. 1:09-cv-00420-LJO-SKO PC, 2010 WL 2791565 at *4-*6, *8 (E.D. Cal. July 14, 2010) (Report and Recommendation), adopted by, 2010 WL 3432240 (E.D. Cal. Aug. 31, 2010) (denying defendants' motion to dismiss where prisoner was left in his cell for five hours following toilet overflow that prompted prison officials to leave building).
Where an inmate's exposure to waste lasts for three or four days, the Circuits are split. Compare Smith v. Copeland, 87 F.3d 265, 269 (8th Cir. 1996) (affirming summary judgment for defendants where plaintiff was subjected to an overflowing toilet in his cell for four days), with McBride v. Deer, 240 F.3d 1287, 1291-92 (10th Cir. 2001) (vacating Rule 12(b)(6) dismissal where plaintiff alleged he was forced to live in "feces-covered cell" for three days), and Sperow v. Melvin, 182 F.3d 922, 1999 WL 450786 at *1-*3 (7th Cir. 1999) (unpublished) (reversing Rule 12(b)(6) dismissal where inmate "was subjected to appalling conditions" of waste-filled cell "for three full days"); and Young v. Quinlan, 960 F.2d 351, 355-56, 363-65, (3d Cir. 1992), superceded by statute on other grounds as stated in Ghana v. Holland, 226 F.3d 175, 184 (3d Cir. 2000) (reversing summary judgment for defendants where inmate was moved to "dry cell" without working toilet for 96 hours and forced to urinate and defecate in his cell).
Under the subjective component of the two-prong test, a Section 1983 claim will not lie for conduct by prison officials that is merely negligent. Trammell v. Keane, 338 F.3d 155, 165 (2d Cir. 2003) (affirming grant of summary judgment for defendants and finding no deliberate indifference, but at worst negligence, where inmate was left with one roll of toilet paper to last approximately nine days); accord Dye v. Lomen, 40 F. App'x 993, 994, 996-97 (7th Cir. 2002) (no proof that defendants deprived plaintiff with toilet paper for several days to unnecessarily and wantonly inflict pain); Harris v. Fleming, 839 F.2d 1232, 1234-35 (7th Cir. 1988) (finding defendants' neglect of plaintiff's need for toilet paper over five days "was not intentional, nor did it reach unconstitutional proportions"). "Not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny . . . . To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner's interests or safety." Whitley v. Albers, 475 U.S. 312, 319 (1986); accord County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998), citing Daniels v. Williams, 474 U.S. 327, 328 (1986) ("[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process."); Kruzel v. County of Suffolk, 23 F. App'x 95, 96 (2d Cir. 2002); John E. Andrus Mem'l, Inc. v. Daines, 600 F. Supp. 2d 563, 585 (S.D.N.Y. 2009) (Seibel, D.J.); Miner v. N.Y. State Dep't of Health, 02 Civ. 3180 (MBM), 2004 WL 1152491 at *5 (S.D.N.Y. May 24, 2004) (Mukasey, D.J.).
Finally, courts have dismissed plaintiffs' claims where there is no genuine issue of fact that defendants were deliberately indifferent to only a brief toilet overflow. Lollis v. Page, Civil No. 4:07-cv-4067, 2008 WL 853561 at *4 (W.D. Ark. Mar. 27, 2008) (defendant "supplied cleaning materials to Plaintiff" ten to fifteen minutes after toilet overflow); Brown v. Hickman, Civil No. 06-3035, 2007 WL 2806711 at *9-*10 (W.D. Ark. Sept. 25, 2007) (adopting Report and Recommendation) (although toilet overflowed for 4 1/2 hours and did not work for 22 hours, a plumber was called and defendant "checked the cell and saw only a small amount of water on the floor").
D. Application of the Foregoing Principles to Plaintiff's Claim
Judged by the standards set forth above, I conclude that plaintiff's claim does not survive the motion to dismiss. As an initial matter, the circumstances alleged by plaintiff are not sufficiently serious under the objective prong. Even if plaintiff's allegations are true, the conditions he describes did not pose a substantial risk of serious harm.
As the cases discussed above demonstrate, courts have generally distinguished claims based on an inmate's continuous and chronic exposure to waste from claims of only intermittent or brief exposure. Here, plaintiff alleges: (1) that he was exposed to a sewage overflow for an unspecified number of hours on December 3, 2007; (2) that he awoke to a second overflow on December 8, 2007, and was moved later that day, and (3) that a third overflow occurred on the night of December 13, 2007 which resulted in plaintiff being moved elsewhere. In each of these incidents, plaintiff was only exposed to waste for a relatively small number of hours; it appears that his total exposure was probably less than 24 hours. Although unpleasant, these incidents are simply too limited to withstand a motion to dismiss. In Sherman v. Gonzalez, supra, 2010 WL 2791565 at *4, the complaint was found to withstand a motion to dismiss because it alleged that plaintiff had actually "suffered significant physical harm from the conditions in his cell" and "was rushed to an outside hospital for emergency treatment after the unsanitary conditions triggered a severe asthma attack, and [that] his heart stopped temporarily." In contrast, plaintiff here never suffered from any similar conditions and only complained about headaches, dizziness and sickness. Plaintiff's allegation that he had "a tumor in [his] head" does not change the foregoing analysis. The allegation that plaintiff developed a tumor from transitory exposure to sewage is fanciful and need not be credited here. "The law requires 'something more than a fanciful allegation' to survive a motion to dismiss." Brown v. Lindemann, 83 Civ. 6174 (RLC), 1992 WL 147667 at *4 (S.D.N.Y. June 15, 1992) (Carter, D.J.), quoting Contemporary Mission, Inc. v. United States Postal Serv., 648 F.2d 97, 100 (2d Cir. 1981). I conclude, therefore, that the facts here are distinguishable from those in Sherman v. Gonzalez, supra.
While the Second Circuit has stated that it was "unwilling to adopt as a matter of law the principle that it is not cruel and unusual punishment for prison officials knowingly to allow an area to remain filled with sewage and excrement for days on end," Gaston v. Coughlin, supra, 249 F.3d at 166 (emphasis added), the conditions to which plaintiff was subjected here did not last "for days on end." Five days passed between each incident, and the exposure did not last for an entire day in any of the incidents. This, I conclude, distinguishes this case from the cases cited above in which a plaintiff's claim was sustained. Judges in this district have repeatedly declined to find that sporadic or brief exposures to waste represented cruel and unusual punishment. Odom v. Keane, supra, 1997 WL 576088 at *5; Evans v. Fogg, supra, 466 F. Supp. at 950. Similarly, in the cases cited above where Courts of Appeals have reversed Rule 12(b)(6) dismissals or grants of summary judgment in favor of defendants, the exposure to sewage and waste was of far longer duration than that alleged here.
Additionally, I note that in Wesolowski v. Kamas, 590 F. Supp. 2d 431, 434-35 (W.D.N.Y. 2008), aff'd, No. 09-2506-pr, 2011 WL 477583 (2d Cir. Feb. 11, 2011), the Honorable David G. Larimer, United States District Judge, stated that a "prison's failure to provide [plaintiff] with specific cleaning supplies or the magnitude of its response to an overflowed toilet elsewhere on the cell block, represent minor inconveniences of prison life which 'are part of the penalty that criminal offenders pay for their offenses against society'" (quoting Anderson v. Coughlin, 757 F.2d 33, 35 (2d Cir. 1985)). I agree with Judge Larimer's analysis, and I conclude that plaintiff's allegations concerning the lack of cleaning supplies to represent a transitory problem, not a constitutional deprivation.
Furthermore, even if plaintiff could satisfy the objective prong of a Section 1983 claim, his claim would still fail because he does not sufficiently allege that defendants were deliberately indifferent. Plaintiff does not sufficiently allege that defendants actually knew of and disregarded a substantial risk to plaintiff's health or safety, or that defendants were aware of facts from which they could have inferred that there was a substantial risk of serious harm, that they drew such an inference and that they disregarded it.
Although plaintiff claims that the defendants "all knew [the backed-up toilet in plaintiff's cell] was an on going problem, and did nothing about it," his own narrative in the second amended complaint contradicts this statement. He details the various attempts by prison officials to repair the sewage system and to relocate plaintiff and other inmates until the problem was resolved. There is a clear difference between cases where defendants allegedly knew about unsanitary conditions but did nothing and cases where officials actually acted to resolve or alleviate the problem, as they are alleged to have done here. Compare Smith v. United States, supra, 2011 WL 777969 at *2 (prison officials refused to flush inmates' toilet or provide inmates with toilet paper for two weeks). The complaint's specific factual allegations demonstrate that defendants repeatedly took steps to alleviate plaintiff's exposure to the overflowing toilet. During the first incident, plaintiff was told that a plumber had been called -- which is the antithesis of deliberate indifference. The complaint also states that within hours of the first incident, plaintiff was moved. When plaintiff became sick from cleaning waste, prison officials let him leave his cell and sit in the dayroom. In the second incident plaintiff describes, the entire unit was moved to the gym. And during the third incident, plaintiff slept overnight in the dayroom one night, in intake the next night and never returned to his cell to sleep.
Because plaintiff's claims do not "raise a right to relief above the speculative level," he has failed to state a claim. Bell Atl. Corp. v. Twombly, supra, 550 U.S. at 555 (citation omitted). Therefore, I respectfully recommend that the individual defendants' motion to dismiss be granted.
While plaintiff's claims fail on the merits as to all individual defendants, Hernandez also appears to have a valid defense pursuant to Fed.R.Civ.P. 12(b)(2). As discussed above, service was not made on Hernandez (Docket Item 41). Defendants note this fact but argue that the complaint should be dismissed as to all defendants on Rule 12(b)(6) grounds (Defs.' Mem. at 2 n.1). Because plaintiff has failed to state a claim, I need not reach the Rule 12(b)(2) issue.
IV. Conclusion
Accordingly, for all the foregoing reasons, I recommend that the individual defendants' motion to dismiss (Docket Item 57) be granted.
V. Objections
Pursuant to 28 U.S.C. § 636(b)(1)(C)) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6(a). Such objections (and responses thereto) shall be filed with the Clerk of the Court, with courtesy copies delivered to the Chambers of the Honorable Richard J. Sullivan, United States District Judge, 500 Pearl Street, Room 640, and to the Chambers of the undersigned, 500 Pearl Street, Room 750, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Sullivan. FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983) (per curiam). Dated: New York, New York
April 29, 2011
Respectfully submitted,
/s/_________
HENRY PITMAN
United States Magistrate Judge Copies mailed to: Mr. Angelo Ortiz
DIN 07-A-6984
Mohawk Correctional Facility
6100 School Road
P.O. Box 8451
Rome, New York 13442-8451 Lesley B. Mbaye, Esq.
Assistant Corporation Counsel
City of New York
100 Church Street
New York, New York 10007