McNair v. Ponte
| Decision Date | 29 March 2019 |
| Docket Number | 16-CV-1722 (LAP) |
| Parties | LARRY MCNAIR, Plaintiff, v. JOSEPH PONTE, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Pro se Plaintiff Larry McNair ("McNair" or "Plaintiff") brings this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights arising from an incident that occurred while he was incarcerated at the Robert N. Davoren Complex ("R.N.D.C.") on Riker's Island. New York City Department of Correction ("D.O.C.") Commissioner Joseph Ponte ("Ponte") has moved to dismiss the Second Amended Complaint ("SAC"), dated Jan. 30, 2018 [dkt. no. 34], in its entirety with prejudice, pursuant to Federal Rules of Civil Procedure 12(b)(6), 16(f), and 41(b), and has further requested that the Court deem McNair's claims abandoned. (See Notice of Motion (the "Motion to Dismiss"), dated Mar. 6, 2018 [dkt. no. 39], 1; Defendant's Memorandum of Law in Support of His Motion to Dismiss the Second Amended Complaint ("Motion to Dismiss Mem."), dated Mar. 6, 2018 [dkt. no. 40], 1; Response in Support of the Motion to Dismiss ("Motion to Dismiss Response"), dated Apr. 27, 2018 [dkt. no. 43], 1-2.)1
For the reasons set forth below, the Motion to Dismiss [dkt. no. 39] is granted and the SAC [dkt. no. 34] is dismissed in its entirety with prejudice.
On January 18, 2015, McNair was housed in "Housing Unit Six Upper North in the R.N.D.C."2 (SAC at 1.) At approximately 5:30P.M. that day, during a discussion between McNair and Defendant "Caucasian Six Upper North C.O. R.N.D.C. John Doe"3 about McNair's psychotropic medications, "Caucasian Six Upper North C.O. R.N.D.C. John Doe" sprayed McNair with a chemical agent at close range, even though McNair "did not pose a threat," was behind two steel doors, and "did not in fact make any physical contact with" "Caucasian Six Upper North C.O. R.N.D.C. John Doe." (Id. at 2-3.)
Before spraying McNair, "Caucasian Six Upper North C.O. R.N.D.C. John Doe" "ignored [a] custom and policy" requiring him to check with medical services to see whether McNair suffered from a medical condition where the use of a chemical agent on McNair could result in McNair's death. (Id. at 2.) Ponte, Defendant "R.N.D.C. Warden John Doe," and "Deputy WardenSecurity John/Jane Doe,"4 "created" this D.O.C. "policy and[]/or custom."5 (Id.)
McNair suffers from "serious and persistent" physical medical conditions, namely, congestive heart failure, high blood pressure, and seizures; due to these medical conditions, exposure to a chemical agent could result in McNair's death. (Id. at 2-3.) McNair has previously received emergency treatment in the clinic for chest pains and difficulty breathing. (Id. at 3.) A medical permit states that McNair should not be exposed to chemical agents. (Id.) McNair also suffers from "persistent and serious" psychological medical conditions, namely, schizoaffective disorder, depression, and anxiety. (Id.)
After spraying McNair, "Caucasian Six Upper North C.O. R.N.D.C. John Doe" pressed his "P.B.A. button." (Id. at 2.) McNair was then escorted to the R.N.D.C.'s intake area by Defendant "R.N.D.C. Intake C.O. African American John Doe." (Id.) Once there, "R.N.D.C. Intake C.O. African American JohnDoe" refused to have McNair seen by medical staff. (Id.) "R.N.D.C. Intake C.O. African American John Doe" also did not decontaminate McNair following his exposure to the chemical agent, as required by "their custom [or] policy."6 (Id.) Due to "R.N.D.C. Intake C.O. African American John Doe's" failure to provide McNair such medical care, Defendant "African American Captain John Doe" failed in "his duty and responsibility" to provide McNair "access to adequate and prompt medical care and tre[a]tment consistent with the minimum standards of the Board of C[o]rrection Staff." (Id.)
As a result of the incident, McNair now suffers from blurred vision, depression, heightened anxiety, auditory hallucinations, suicidal ideations, nightmares, increased cardiac problems, and wears a pacemaker in his chest for "low percentage of ejection fraction." (Id. at 3-4.)
On March 7, 2016, McNair filed the Complaint, alleging essentially the same facts as set forth above. (See Complaint, dated Mar. 7, 2016 [dkt. no. 2].) In the Complaint, McNair alleged that the date of the incident was January 18, 2016 and identified the defendants in the Complaint's caption as follows:"N.Y.C.D.O.C. Comm. Joseph Ponte"; "R.N.D.C. Warden K. Collins"; "Deputy Warden Securit[y] Phipps"; "Captain Antoine"; and "C.O. 6[]Upper North Caucasian John Doe 3:00 to 11:00 P.M. 1/18/16." (Id. at 1, 3.)
In accordance with Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997) (per curiam), the Court ordered the New York City Law Department, which is the attorney for and agent of D.O.C., to ascertain the identity of "the white male officer who worked the 3:00 pm to 11:00 pm shift at '6 upper north' at the RNDC on January 18, 2016" named in the Complaint (the "Complaint John Doe Defendant"). (See Order of Service ("Valentin Order"), dated May 13, 2016 [dkt. no. 10], 1-2.) The Court ordered the New York City Law Department to provide this information to McNair and the Court within sixty days of the date of the Valentin Order. (Id. at 2.) McNair was ordered to file an amended complaint that named the Complaint John Doe Defendant within thirty days of receiving that information. (Id.)
On July 12, 2016, the New York City Law Department timely filed a letter in response to the Valentin Order identifying the Complaint John Doe Defendant as former Correction Officer R. Gorle ("Gorle"). (See Letter ("Valentin Response"), dated July 12, 2016 [dkt. no. 18], 1.) Pursuant to the Valentin Order, McNair had thirty days from July 12, 2016, or until August 11,2016, by which to file an amended complaint. (See Valentin Order at 2.)
By Order dated August 17, 2017, the Court noted that McNair had failed to file an amended complaint within thirty days of receiving the Valentin Response identifying Gorle and gave McNair "one final opportunity to file an amended complaint no later than September 15, 2017." (See Order ("August 2017 Order"), dated Aug. 17, 2017 [dkt. no. 27], 1.) The Court warned McNair that "[f]ailure to file timely may result in dismissal of the action." (Id.)
McNair timely filed an amended complaint on September 14, 2017. (See Civil Mrights [sic] Amended Complaint ("AC"), dated Sept. 14, 2017 [dkt. no. 28].) In the AC, McNair alleged that the date of the incident was "May and around the middle of May" and identified the defendants in the AC's caption as follows: "R.N.D.C. Warden John/Jane Doe"; "N.Y.C.D.O.C.S. Comm. Joseph Ponte"; "Dorm Two African American Jane Doe C.O."; "Deput[y] []Warden Security John/Jane Doe"; and 7 (Id. at 1.)
On October 2, 2017, Ponte filed an answer to the AC. (See Answer to the "Civil Rights" Amended Complaint by Defendants, dated Oct. 2, 2017 [dkt. no. 29].)
On January 18, 2018, the Court held an Initial Pretrial Conference. At the Initial Pretrial Conference, Ponte asserted that McNair's pleadings contained several deficiencies. Specifically, Ponte argued that McNair alleged that the incident occurred on different dates in the Complaint and AC. ( ) Ponte also argued that, despite previously identifying certain defendants by name in the Complaint, McNair identified those same defendants as "John Does" in the AC. (Id. at 4:4-4:15.) Additionally, Ponte noted that, despite being provided the identify of the Complaint John Doe Defendant by the New York City Law Department on July 12, 2016, McNair did not name that defendant in the AC. (Id. at 4:7-15, 5:1-3.)
On January 19, 2018, pursuant to the discussion during the January 18, 2018 Initial Pretrial Conference, "the Courtgrant[ed] [McNair] permission to amend the [AC] no later than February 1, 2018." (Order ("January 2018 Order"), dated Jan. 19, 2018 [dkt. no. 33], 1.)8
On January 30, 2018, McNair timely filed the SAC. In the SAC, McNair alleged that the date of the incident was January 18, 2015 and identified the defendants in the SAC's caption as follows: "N.Y.C.D.O.C Comm. Joseph Ponte"; "R.N.D.C. Warden John Doe"; "Caucasian Six Upper North C.O. R.N.D.C. John Doe"; "African American Captain John Doe"; and "R.N.D.C. Intake C.O. African American John Doe."9 (SAC at 1.)
On February 12, 2018, Ponte advised the Court that he intended to move for dismissal in lieu of an answer and requested the Court's endorsement of a briefing schedule. (SeeLetter Motion ("Ponte's February 12, 2018 Letter"), dated Feb. 12, 2018 [dkt. no. 35].)
On February 28, 2018, McNair filed the February "Opposition." In the February "Opposition," McNair included exhibits identifying the date of the incident as January 18, 2016 and identified the defendants in the February "Opposition's" caption as follows: "N.Y.C.D.O.C. Comm. Joseph Ponte"; "R.N.D.C. Warden Collins"; "Captain Antoine"; and "C.O. R. Gorle." (February "Opposition" at 1, 6-14.)
On March 8, 2018, the Court ordered the following briefing schedule: Ponte's Motion to Dismiss was due no later than March 6, 2018; McNair's opposition was due no later than April 6, 2018; and Ponte's reply, if any, was due no later than April 27, 2018. (See Order ("March 2018 Order"), dated Mar. 8, 2018 [dkt. no. 42], 3.) Ponte timely served McNair with the Motion to Dismiss by mail on March 6, 2018, two days prior to the issuance of the March 2018 Order. (See Declaration of Service, dated Mar. 6, 2018 [dkt. no. 39-2], 1.) On April 27, 2018, Ponte filed his Motion to Dismiss Response.
By Order dated June 19, 2018, the Court noted that McNair filed the February "Opposition" in response to Ponte's February 12, 2018 Letter. (June...
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