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holding that prison shoes alleged to cause "pain, chronic fungus, and a painful gait" were not unconstitutional
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11 Civ. 9623 (RJS) (JLC)
06-20-2012
JOSHUA WALKER, Plaintiff, v. C.O. CLEMSON et al., Defendants.
REPORT AND RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge.
To The Honorable Richard J. Sullivan, United States District Judge:
Plaintiff Joshua Walker ("Walker"), a pre-trial detainee in the custody of the City of New York Department of Correction ("DOC"), incarcerated at all times relevant to this litigation at the Vernon C. Bain Center ("V.C.B.C.") and the George R. Vierno Center ("G.R.V.C.") on Rikers Island, has brought this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights arising from alleged deliberate indifference to his serious medical needs on November 7, 2011. Proceeding pro se, he has sued C.O. Clemson, a DOC Correction Officer, G.R.V.C. Warden Rose Agro ("Warden Agro"), and V.C.B.C. Warden Robert Cripps ("Warden Cripps") (collectively "Defendants"), alleging that C.O. Clemson took his personal sneakers and, in exchange, gave him prison-issued sneakers which caused him severe pain. Walker asserts that, upon transfer to G.R.V.C., his personal sneakers were not returned, and further alleges that a facility doctor directed that he be provided with supportive institutional footwear due to foot spurs.
Defendants have moved to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the grounds that Walker has failed to (1) exhaust his administrative remedies; (2) allege the personal involvement of defendants Warden Agro and Warden Cripps; and (3) allege facts sufficient to give rise to a constitutional violation. For the reasons that follow, I recommend that the motion be granted and the Complaint dismissed in its entirety.
I. Background
A. Walker's Allegations
The following facts are taken from the Complaint dated December 20, 2011 ("Compl.") (Doc. No. 2), and are accepted as true for purposes of this motion. Walker alleges that, on November 7, 2011, while incarcerated at V.C.B.C., C.O. Clemson confiscated his Puma sneakers and, in exchange, gave him prison-issued sneakers. Compl. ¶ II. D (and property receipt attached to Complaint). Walker alleges further that his personal sneakers were not returned to him without explanation when he was transferred to G.R.V.C, despite being seen by the facility doctor at G.R.V.C. who recommended that Walker be provided with supportive institutional footwear due to his medical condition. Compl. ¶¶ II. D, III. He alleges that he received "minimal medical attention" for the "spurs of [his] feet," and that he has "severe pain on the ball[s] of [his] feet as well as spur and ankle pain causing [him] to walk off balance." Id. ¶ III. In his Opposition, Walker adds that the prison-issued sneakers caused him "to suffer pain, chronic fungus, [and] a painful gait which in turn warranted the use of a cane to correct" and that he "now has to wear orthopedic sneakers and faces possible surgeries in the near future." Pl. Opp. at 9.
In his Opposition, Walker states that C.O. Glemaud (rather than the named defendant, C.O. Clemson) confiscated his personal sneakers. Pl. Opp. at 1. To the extent that Walker seeks to assert a claim against C.O. Glemaud as opposed to, or in addition to, C.O. Clemson, the Court finds it to suffer from the same deficiencies as the one brought against Clemson.
Walker attaches to his December 20, 2011 Complaint a referral form from Dr. Marie Georges, also dated December 20, 2011, on which she notes: "Provide supportive institutional foot wear to [patient] due to his medical condition."
Walker also alleges that he filed numerous grievances and wrote letters to Warden Agro and Warden Cripps but that they did not respond. Id. ¶¶ IV. E, G.
B. Relief Sought
Walker brings this Complaint seeking $17,000 in damages. Id. ¶ V. Walker also requests injunctive relief, seeking a court order directing Defendants to change their policy to allow pre-trial detainees to wear their personal sneakers. Id.
C. Procedural History
In lieu of an answer, Defendants moved to dismiss the Complaint in its entirety, arguing that it failed to allege the personal involvement of Warden Agro and Warden Cripps and failed to allege a sufficient constitutional violation. Defendants' Memorandum of Law in Support of Motion to Dismiss the Complaint, dated March 7, 2012 ("Def. Mem."), at 1 (Doc. No. 13). Walker filed opposition papers on April 24, 2012, Plaintiff's Memorandum of Law in Support of Plaintiff's Opposition to Defendants' Motion to Dismiss ("Pl. Opp.") (Doc. No. 15), and Defendants filed reply papers on May 2, 2012 ("Def. Reply") (Doc. No. 16).
Defendants initially raised the issue of Walker's failure to exhaust his administrative remedies under the Prison Litigation Reform Act in their Motion to Dismiss. Def. Mem. at 4-7. In his Opposition, Plaintiff made persuasive arguments as to why he did not complete the prison grievance process, most significantly that DOC had reconsidered its policy and decided to allow prisoners once again to keep and wear their personal footwear. Pl. Opp. at 3-5. Accordingly, in their Reply, Defendants withdrew this aspect of their motion. Def. Reply at 1, n.1.
II. Discussion
A. Applicable Legal Standards
Defendants have moved to dismiss Walker's Complaint for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6). In considering a Rule 12(b)(6) motion, a court accepts all well-pleaded allegations in the complaint as true and draws all reasonable inferences in the plaintiff's favor. See, e.g., Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec. LLC, 568 F.3d 374, 381 (2d Cir. 2009). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility 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. (citation omitted). Mere "labels and conclusions" or a "formulaic recitation of the elements of a cause of action" are not enough to survive a motion to dismiss. Twombly, 550 U.S. at 555.
Complaints prepared by pro se litigants are held "to less stringent standards than formal pleadings drafted by lawyers." Peay v. Ajello, 470 F.3d 65, 67 (2d Cir. 2006) (citations and quotation marks omitted). Because Walker filed his pleadings pro se, the Court must liberally construe them and interpret his Complaint "to raise the strongest arguments it suggests." Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (citation omitted). However, the Court need not accept as true "conclusions of law or unwarranted deductions of fact[.]" See, e.g., First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994) (citation and quotation omitted). In addition, the fact that Walker is proceeding pro se "does not exempt [him] from compliance with relevant rules of procedural and substantive law[.]" Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (citation and quotation marks omitted).
When deciding a Rule 12(b)(6) motion to dismiss, "the district court is normally required to look only to the allegations on the face of the complaint." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007). However, the court may also rely upon "documents attached to the complaint as exhibits[] and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (citations omitted). The court can also consider "matters of which judicial notice may be taken, or . . . documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (citation and quotation marks omitted).
B. Walker Does Not Sufficiently Allege a Constitutional Violation
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a "state actor." West v. Atkins, 487 U.S. 42, 48-49 (1988). The rights implicated in this case are the Eighth Amendment's prohibition against cruel and unusual conditions of confinement and its requirement that prisoners be afforded adequate medical care. Construing Walker's Complaint liberally, as the Court must, it appears that Walker alleges two possible Eighth Amendment claims for relief: one challenging his conditions of confinement, and the other alleging inadequate medical care. I will consider each one in turn.
1. Claim Challenging Conditions of Confinement
In order to sustain a claim that prison conditions constitute "cruel and unusual" punishment under the Eighth Amendment, a prisoner must allege facts illustrating that prison officials were deliberately indifferent to the conditions. See Wilson v. Seiter, 501 U.S. 294, 297 (1991). This means a plaintiff must allege facts evidencing that (i) he has been denied the "minimal civilized measure of life's necessities," id. at 298 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)), and (ii) prison officials "knew of and disregarded an excessive risk to inmate health or safety." Branham v. Meachum, 77 F.3d 626, 631 (2d Cir. 1996) (citation omitted).
Although the Eighth Amendment does not technically apply to a pre-trial detainee such as Walker, "the standard of review for a Fourteenth Amendment Due Process claim by a pre-trial detainee is identical to an Eighth Amendment claim by a convicted prisoner. Accordingly, the Court analyzes the plaintiff's allegations under the Eighth Amendment's deliberate indifference standard." Martin v. City of New York, No. 11 Civ. 600 (PKC) (RLE), 2012 WL 1392648, at *8 (S.D.N.Y. Apr. 20, 2012) (citing Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009)).
a. Denial of Minimal Civilized Measure of Life's Necessities
"Under the Eighth Amendment, States may not deprive prisoners of 'basic human needs' and prison officials may not expose prisoners to conditions that 'pose an unreasonable risk of serious damage to [their] future health.'" Williams v. Dep't of Corrections, No. 11 Civ. 1515 (SAS), 2011 WL 3962596, at *3 (S.D.N.Y. Sept, 7, 2011) (quoting Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir, 2002) (quoting Helling v. McKinney, 509 U.S. 25, 35 (1993))); see Farmer v. Brennan, 511 U.S. 825, 837 (1994) (a prison official's act or omission must result in the denial of "the minimal civilized measure of life's necessities" or pose an "excessive risk to inmate health or safety" to constitute an Eighth Amendment violation). "Ultimately, to establish the objective element of an Eighth Amendment claim, a prisoner must prove that the conditions of his confinement violate contemporary standards of decency." Phelps, 308 F.3d at 185 (citing Helling, 509 U.S. at 35-36).
"Because society does not expect or intend prison conditions to be comfortable, only extreme deprivations are sufficient to sustain a 'conditions-of-confinement' claim." Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999) (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)). Several courts have recently found claims of deliberate indifference to conditions similar to those raised by Walker to be insufficiently serious to satisfy the objective prong of the deliberate indifference standard. See, e.g., Martin, 2012 WL 1392648, at *9 (dismissing conditions-of-confinement claim based on allegation that plaintiff slipped and fell on wet floor because prison-issued shoes were too large and had inadequate soles); Foreman v. Martin, 11 CV 4584 (ENV), 2012 WL 607665, at *2 (E.D.N.Y. Feb, 24, 2012) (dismissing claim that plaintiff was not allowed to wear sneakers of his choice); Williams, 2011 WL 3962596, at *4 (dismissing claim that plaintiff was forced to wear poorly constructed prison-issued footwear resulting in slip-and-falls and extreme leg and foot pain); Edwards v. Quinones, No. 10 Civ. 3141 (WHP), 2010 WL 4669110, at *3 (S.D.N.Y. Nov. 17, 2010) (dismissing claim that plaintiff was provided with inadequate sneakers as "border[ing] on the patently frivolous"); Brown v. DeFrank, No. 06 Civ. 2235 (AJP), 2006 WL 3313821, at *21 (S.D.N.Y. Nov. 15, 2006) (finding pain from foot condition not sufficiently serious) (collecting cases); compare Wheat v. New York City Dep't of Correction, No. 10 Civ. 5459 (SAS), 2010 WL 5129065, at *4 & n.61 (S.D.N.Y. Dec. 15, 2010) (denying motion to dismiss where plaintiff alleged that he was deprived of any shoes, not just uncomfortable shoes, for two weeks).
In this case, Walker merely alleges that C.O. Clemson took his personal sneakers and, in exchange, gave him prison-issued footwear. While the prison-issued footwear may not have been as supportive as his personal sneakers, the Constitution does not require that prisons provide high-quality footwear. See Rhodes, 452 U.S. at 349 ("the Constitution does not mandate comfortable prisons"). Walker's Complaint, therefore, does not allege a condition of confinement that offends contemporary standards of decency or poses an excessive risk to a prisoner's health or safety. As in Williams, where the plaintiff "may have been in discomfort for a period of time from having to wear shoes that he claims were poorly constructed with no support for the foot or cushion for the soles," Walker's allegations do not describe a condition of confinement that "offends contemporary standards of decency or poses an excessive risk to [Walker's] health or safety." Williams, 2011 WL 3962596, at *4. Accordingly, Walker has failed to establish the first element of a conditions-of-confinement claim.
b. Knowledge and Disregard of Risk
"In addition to [Walker's] failure to allege a sufficiently serious condition, he cannot establish the subjective prong of his deliberat[]e indifference claim: that Defendants acted with a sufficiently culpable mind in causing the alleged harm." Williams, 2011 WL 3962596, at *4; see Farmer, 511 U.S. at 837. This means that prison officials acted with a "deliberate indifference to prisoners' health or safety." Blyden, 186 F.3d at 262. Mere negligence or "an ordinary lack of care" is insufficient. Id. In order to establish Defendants' deliberate indifference, Walker must show that the "need" for more supportive footwear was "obvious." Williams, 2011 WL 3962596, at *4 (citing Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995)).
Walker does not allege that any individual prison official acted with such deliberate indifference as to amount to a constitutional violation. He asserts that C.O. Clemson took his personal sneakers and replaced them with prison-issued footwear. Walker does not, however, assert that his personal sneakers were anything other than commonly-worn sneakers or that they contained special insoles (or any other corrective feature, for that matter) that would have put C.O. Clemson or any other staff member on notice of his medical need. Likewise, Walker does not allege, either in his Complaint or Opposition, that he informed C.O. Clemson that he had to wear his personal sneakers for medical reasons. Nor has he identified any evidence to substantiate his medical condition that would have been known to prison officials prior to the date a facility doctor completed the referral form on December 20, 2011, the date of the Complaint, and more than a month after his sneakers were confiscated. Given the facts alleged, and the timing of Dr. Georges' referral, Walker cannot establish that it was obvious that prison-issued footwear would be harmful to him and thus result in a constitutional violation. Accordingly, Walker cannot establish deliberate indifference on the part of Defendants. Thus, the Complaint should be dismissed for failure to state a claim recognized by law under 42 U.S.C. § 1983.
2. Claim for Inadequate Medical Care
To the extent Walker's Complaint is construed to allege inadequate medical care, it fails as well. "In order to establish an Eighth Amendment claim arising out of inadequate medical care, a prisoner must prove 'deliberate indifference to [his] serious medical needs.'" Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Estelle v. Gamble, 492 U.S. 97, 104 (1976)). A claim of deliberate indifference to serious medical needs consists of (1) an objective "medical need" element based on the severity of the alleged deprivation, and (2) a subjective "deliberate indifference" element based on whether the involved prison officials acted with a sufficiently culpable state of mind. Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003).
a. Serious Medical Need
The objective element for an Eighth Amendment claim of inadequate medical care requires, first, determining "whether the prisoner was actually deprived of adequate medical care," and, second, "whether the inadequacy in medical care is sufficiently serious." Salahuddin v. Goord, 467 F.3d 263, 279, 280 (2d Cir. 2006) (internal quotation marks omitted); see Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). If the deprivation at issue is "a failure to provide any treatment for an inmate's medical condition, courts examine whether the inmate's [underlying] medical condition is sufficiently serious." Salahuddin, 467 F.3d at 280. If, however, the deprivation is in the degree or quantity of medical treatment actually given, "the seriousness inquiry is narrower." Id. Then, "it's the particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's underlying medical condition, considered in the abstract, that is relevant for Eighth Amendment purposes." Smith, 316 F.3d at 186. While this standard most certainly includes "condition[s] of urgency that may produce death, degeneration, or extreme pain," Hathaway, 99 F.3d at 553, it has also been interpreted to include "less serious denials [of medical attention] which cause or perpetuate pain." Brock v. Wright, 315 F.3d 158, 163 (2d Cir. 2003).
Walker does not allege that Defendants failed to provide any medical treatment altogether. In fact, Walker asserts in his Complaint that he received "minimal medical attention." Compl. ¶ III. Walker alleges that on December 20, 2011, the day he signed his Complaint, a facility doctor determined that he should be provided with supportive institutional footwear. Walker does not make any further allegations regarding the medical treatment he received other than indicating that his personal sneakers were not returned to him notwithstanding Dr. Georges' referral for supportive footwear made on the same day Walker signed his Complaint.
Walker does, however, acknowledge that after completing the first two steps of the Inmate Grievance Procedure, DOC changed its policy and allowed inmates to wear personal sneakers, Pl. Opp. at 5. It is not clear from the Complaint, however, how much time passed from December 20, 2011, the date Walker was seen by the facility doctor, to the date his personal sneakers were returned to him. The Court cannot, therefore, make a determination from the pleadings as to the particular risk of harm faced by Walker due to the alleged deprivation. Cf. Hallett v. City of New York, No. 08 Civ. 2831 (CM), 2010 WL 1379733, at *6 (S.D.N.Y. Mar. 26, 2010) ("the fact that plaintiff's feet hurt for a few weeks does not rise to the level of a medical condition that can support a constitutional claim for inadequate medical care"). The Court finds, however, that it is unnecessary to reach the question as to whether Walker's pleading is sufficient on this point as Walker fails to allege that Defendants acted with a sufficiently culpable state of mind.
b. Deliberate Indifference
The subjective prong of an Eighth Amendment claim of inadequate medical care requires that "the charged official [ ] act with a sufficiently culpable state of mind." Hathaway, 99 F.3d at 553. "The required state of mind, equivalent to criminal recklessness, is that 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.'" Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (quoting Farmer, 511 U.S. at 837).
Walker does not allege in his Complaint that at the time his personal sneakers were taken by C.O. Clemson he had ever informed Clemson, or anyone else for that matter, of his medical condition. In addition, because Walker's sneakers were not special in any way, the need for medical attention was not obvious at the time his sneakers were taken from him. It appears from Walker's Complaint and his Opposition that his only attempts to inform Defendants of his medical condition consisted of following the grievance procedures and writing letters to Warden Agro and Warden Cripps. Accordingly, Walker fails to allege that Defendants were deliberately indifferent to his medical needs and thus, the claims against them should be dismissed for this reason as well,
C. Walker Does Not Sufficiently Allege the Personal Involvement of Warden Agro and Warden Cripps in any Constitutional Violation
In addition to failing to state a claim against defendants Agro and Cripps, Walker has also failed to plead sufficient personal involvement by these Defendants to hold them responsible for any alleged constitutional violation. It is well-settled that "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Shomo v. City of New York, 579 F.3d 176, 184 (2d Cir. 2009) (citation and internal quotation marks omitted). Therefore, a complaint that fails to allege how a specific defendant violated the law or injured the plaintiff should be dismissed as to that defendant. See, e.g., Hemmings, 134 F.3d at 109 n.4. Because a defendant's conduct must be a proximate cause of the alleged Section 1983 violation, "the doctrine of respondeat superior . . . does not suffice to impose liability for damages under section 1983 on a defendant acting in a supervisory capacity[,]" and a showing of personal responsibility is required. Henry v. Davis, No. 10 Civ. 7575 (PAC) (JLC), 2011 WL 3295986, at *3 (S.D.N.Y. Aug. 1, 2011) (internal quotation marks and citations omitted), adopted, 2011 WL 5006831 (S.D.N.Y. Oct. 20, 2011). The Court of Appeals for the Second Circuit has described five ways in which a supervisory official may be involved in actions that caused the deprivation of constitutional rights:
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional
practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citations omitted).
Several lower courts have considered what impact, if any, Iqbal has had on the so-called Colon factors enumerated above, see, e.g., Gonzalez v. Sarreck, No. 08 Civ. 3661 (RWS), 2011 WL 5051341, at *14 n.3 (S.D.N.Y. Oct. 24, 2011) (dismissing defendants for lack of personal involvement) (collecting cases), but the Second Circuit has not yet squarely addressed the issue. Because Walker has failed to meet any of the five factors here, it is not necessary for this Court to weigh in on the issue.
Walker has failed to allege sufficient facts to demonstrate that Warden Agro and Warden Cripps were personally involved in any constitutional violation. Walker does not allege that Warden Agro or Warden Cripps directly participated in the alleged violations, that any policies they promulgated allowed the continuance of constitutional violations, or that they were negligent in the supervision of their subordinates. The Complaint alleges only that Warden Agro and Warden Cripps received grievances and letters from Walker regarding his medical condition and the confiscation of his personal sneakers. This is insufficient to state a constitutional claim against them. Simply writing to a supervisory official cannot establish personal involvement as a matter of law. See Shomo, 579 F.3d at 184 (dismissing § 1983 claims against Department of Correction officials for lack of personal involvement when "[t]he only allegation pertaining to [those] defendants [was] that [the plaintiff] filed complaints with [them]"); Edwards, 2010 WL 4669110, at *2 ("a single letter to a supervisory official is insufficient to establish personal involvement"); see also Rivera v. Pataki, No. 04 Civ. 1286 (MBM), 2005 WL 407710, at *22 (S.D.N.Y. Feb. 7, 2005) ("Simply because [the plaintiff] wrote to these supervisory officials complaining of mistreatment does not justify holding them liable under § 1983."). Additionally, "[b]oth the Court of Appeals and numerous district courts in this Circuit have held that receipt of letters or grievances is insufficient to impute personal involvement." Gonzalez v. Sarreck, No. 08 Civ. 3661 (RWS), 2011 WL 5051341, at *14 (S.D.N.Y. Oct. 24, 2011) (citing cases). Other than sending grievances and letters, Walker does not allege that Warden Agro and Warden Cripps had actual knowledge of the confiscation of his personal sneakers or the nature of his medical condition. The claims against Warden Agro and Warden Cripps should therefore be dismissed on this ground as well.
Even if Warden Agro and Warden Cripps ignored Walker's letters and grievances, it appears that there would still be no liability under section 1983. See, e.g., Honig v. Bloomberg, No. 08 Civ. 0541 (DAB), 2008 WL 8181103, at *5 (S.D.N.Y. Dec. 8, 2008) ("courts have repeatedly found that 'the allegation that a supervisory official ignored a . . . letter protesting unconstitutional conduct is not itself sufficient to allege the personal involvement of the official so as to create liability under § 1983") (citations omitted). "The general rule is that an allegation that an official ignored a prisoner's letter of protest and request for an investigation of allegations made therein is insufficient to hold that official liable for the alleged violation." Id. (citation omitted).
III. Conclusion
For the foregoing reasons, I recommend that the Court dismiss the Complaint against Defendants in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. To the extent the Court reaches it, Walker's request for injunctive relief should be also denied as moot because DOC has changed its policy and now permits pre-trial detainees to wear their personal sneakers.
PROCEDURE FOR FILING OBJECTIONS
TO THIS REPORT AND RECOMMENDATION
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 objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard J. Sullivan and the undersigned, United States Courthouse, 500 Pearl Street, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Sullivan.
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). If Walker does not have access to cases cited herein that are reported on Westlaw, he should request copies from Defendants. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009). Dated; New York, New York
June 20, 2012
/s/_________
JAMES L. COTT
United States Magistrate Judge
Copies of this Report and Recommendation have been sent by ECF to counsel of record and by mail to:
Joshua Walker ID #441-11-10770 09-09 Hazen Street East Elmhurst, New York 11370