Mabry v. Fischer

• Decision Date: 05 December 2011
• Docket Number: 11 Civ. 2887 (LBS)
• Parties: SHARON MABRY AND TRACEY BOWE, Plaintiffs, v. BRIAN FISCHER, et al, Defendants.
• Court: U.S. District Court — Southern District of New York

SHARON MABRY AND TRACEY BOWE, Plaintiffs,

v.BRIAN FISCHER, et al, Defendants.

11 Civ. 2887 (LBS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date: December 5, 2011

MEMORANDUM& ORDER

SAND, J,

Plaintiffs Sharon Mabry ("Mabry") and Tracey Bowe ("Bowe"), committed to the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), bring this action pursuant to 42 U.S.C. § 1983 alleging that unsafe conditions of confinement are putting their health at risk in violation of the 5th, 8th and 14th Amendments to the United States Constitution. Named as Defendants are DOCCS and its Commissioner, Brian Fischer, Superintendent Andrea B. Hester, Health Service Director Barbara Griffith and Taconic Correctional Facility (the "State Defendants"); the Town of Bedford ("Bedford"); Peckham Materials Corporation ("Peckham"); and Asphalt Sealing Specialist Company ("Asphalt Sealing"). Before this Court are motions to dismiss filed by the State Defendants, Bedford and Peckham.¹

I. Background²

Plaintiffs Mabry and Bowe have been incarcerated at Taconic since June 17, 2010 and June 6, 2007, respectively. First Amended Compl. ("FAC") ¶ II.D. According to Plaintiffs, they are routinely exposed to unsafe levels of environmental tobacco smoke, mold, blood on thetoilets and "vermin," including insects and rodents. Id. Plaintiffs further assert that Peckham and Asphalt Sealing, two nearby commercial facilities, emit excessive noise and "toxic fumes" of "benzene" and other "dangerous carcinogens," causing Plaintiffs to experience chest pains, headaches, difficulty breathing, coughing, wheezing, reflux, stomach problems, itchy and swollen eyes and skin irritations. Mabry asserts that her health, already fragile from preexisting conditions, is being compromised further by these conditions. Id.

Plaintiffs filed grievances and wrote letters regarding these conditions, but prison officials either denied their requests for relief or failed to respond altogether. In response to letters Mabry sent to Defendant Fischer on June 26 and October 10, 2011, she received letters from Associate Commissioner Theresa Knapp-David and DOCCS Chief Medical Officer, Dr. Koenigsmann, both of whom directed Plaintiff to discuss her concerns with facility personnel. On November 17, 2010, Bowe wrote to Commissioner Fischer but received no response. Attached to the Complaint are copies of Plaintiffs' communications with prison officials. Am. Compl., attachments. Defendants assert, and Plaintiffs do not dispute, that Bowe did not grieve the vermin issue. State Defs.' Mot. Dismiss at 6-7.

Plaintiffs also wrote to Bedford and Peckham but received no response. FAC ¶ II.D. Plaintiffs assert that Bedford and Peckham were on notice about the pollution and that their failure to respond or take action constituted negligence and deliberate indifference to Plaintiffs' health and safety. According to Plaintiffs, Bedford is liable for their injuries for failing to prevent the emissions or to enforce environmental regulations and for having a policy of allowing toxic emissions to be released into the air, and Peckham for creating the hazardous conditions that are adversely affecting Plaintiffs' health. Plaintiffs seek monetary damages and injunctive relief, including improved conditions or transfers to another correctional facility. FAC ¶ V.

The State Defendants move to dismiss all claims against Commissioner Fischer and Bowe's vermin claim. Bedford and Peckham move to dismiss all claims against them. Only Mabry filed opposition papers. Bedford has asked the Court to dismiss Bowe's claims for failing to oppose its motion. In light of Plaintiffs' pro se status the Court declines to do so at this time. Going forward, however, Bowe must sign Mabry's responsive pleadings or submit her own or risk dismissal from the action for failure to prosecute.³

II. Discussion

A. Standard of Review

On a motion to dismiss, a court reviewing a complaint will consider all material factual allegations as true and draw all reasonable inferences in favor of the plaintiff. Lee v. Bankers Trust Co., 166 F.3d 540, 543 (2d Cir. 1999). "To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level." ATSI Commc'ns Inc. v. The Shaar Fund, Ltd., 493 F.3d 87, 93 (2d Cir. 2007) (internal quotation omitted). Ultimately, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Ail. Corp. v. Twombly, 550 U.S. 544, 547 (2007). "[A] simple declaration that defendant's conduct violated the ultimate legal standard at issue . . . does not suffice." Gregory v. Daly, 243 F.3d 687, 692 (2d Cir. 2001).

When reviewing a pro se complaint for failure to state a claim, a court is obligated to employ less rigorous standards than if the complaint was drafted by counsel. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) ("A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards thanformal pleadings drafted by lawyers,") (internal quotations and citations omitted). But a pro se plaintiff must still "identif[y] the particular events giving rise to her claim" so as to give defendants "fair notice of her claim and the grounds upon which it rests." Boykin v. KeyCorp., 521 F.3d 202, 214-15 (2d Cir. 2008) (citation omitted).

In reviewing a complaint, a court is not limited to the four corners of the complaint; a court may also consider "documents attached to the complaint as an exhibit or incorporated in it by reference, , . . 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." Brass v. American Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993). This includes the "full text of documents partially quoted in [the] complaint." Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006) (citing San Leandro Emergency Med. Group Profit Sharing Plan v. Philip Morris Cos., 75 F.3d 801, 808-09 (2d Cir. 1996)).

B. The Merits

1. The State

The State Defendants seek to dismiss (1) all claims against Commissioner Fischer for lack of personal involvement and (2) Bowe's vermin claim for lack of administrative exhaustion,

a. Personal Involvement

Plaintiffs claim that Defendant Fischer, in his capacity as DOCCS Commissioner, is liable for their injuries. To plead a § 1983 claim, a plaintiff must allege facts showing that each defendant was personally involved in the alleged violation of constitutional rights "through the official's own individual actions." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1940 (2009). "[T]he doctrine of respondeat superior ... does not suffice to impose liability for damages under section 1983 on a defendant acting in a supervisory capacity." Hayut v. State Univ. of N.Y., 352 F.3d733, 753 (2d Cir. 2003); see also Hemmings v. Gorczyk,\34 F.3d 104, 109 n.4 (2d Cir. 1998). Additionally, "[t]he bare fact that [a defendant] occupies a high position in the New York prison hierarchy is insufficient to sustain [a] claim." Colon v. Coughlin, 58 F.3d 865, 874 (2d Cir. 1995).

In this case, the only allegations against Fischer are that on two occasions he referred letters of complaint to other DOCCS officials and once he did not respond at all. The receipt of letters or grievances, by itself, does not amount to personal involvement. See Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (commissioner had no personal involvement when plaintiff wrote him two letters, one an appeal the Commissioner had referred to the prison superintendent for decision); Mateo v. Fischer, 682 F. Supp. 2d 423 (S.D.N.Y. 2010); Manswell v. U.S., 09 Civ. 4102, 2010 WL 3219156, at *5 (S.D.N.Y. Aug. 12, 2010); Higgins v. Artuz, 94 Civ. 4810, 1997 WL 466505, at *7 (S.D.N.Y. Aug. 14, 1997) ("[T]t is well-established 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 violations."); Watson v. McGinnis, 964 F. Supp. 127, 130 (S.D.N.Y. 1997) ("The law is clear that allegations that an official ignored a prisoner's letter are insufficient to establish liability."). Nor is it enough that a supervisor forwarded a complaint or grievance to another official for handling. Ramos v. Artuz, 00 Civ. 0149, 2001 WL 840131, at *8 (S.D.N.Y. July 25, 2001) (superintendent lacked personal involvement where he forwarded inmate's complaint letters to appropriate subordinates). This is because DOCCS commissioners and prison superintendents receive large numbers of letters from inmates, and they "delegate subordinates to handle them." Walker v. Pataro, 99 Civ. 4607, 2002 WL 664040, at *12 (S.D.N.Y. Apr. 23, 2002). Plaintiffs' allegations regarding Fischer's conduct do not allege sufficient personal involvement for § 1983 purposes.

b. Exhaustion

The State Defendants allege that Bowe did not grieve the vermin issue. Section 1997e(a) of the Prison Litigation Reform Act ("PLRA") states that "[n]o action shall be brought with respect to prison conditions under section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983), or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The Supreme Court has held that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). The issue of nonexhaustion should "be resolved as early as possible by the court." McCoy v. Goord, 255 F. Supp. 2d 233, 248 (S.D.N.Y. 2003). Complaints...