Smolen v. Fischer, 12 Civ. 1856 (PAC) (AJP)

Decision Date23 August 2012
Docket Number12 Civ. 1856 (PAC) (AJP)
PartiesSAMUEL J. SMOLEN, JR., Plaintiff, v. BRIAN FISCHER, Commissioner N.Y.S. Department of Correctional Services; ADA PEREZ, Superintendent Downstate Correctional Facility; and R. NGUYEN, R.N., Defendants.
CourtU.S. District Court — Southern District of New York

SAMUEL J. SMOLEN, JR., Plaintiff,
v.
BRIAN FISCHER, Commissioner N.Y.S. Department of Correctional Services;
ADA PEREZ, Superintendent Downstate Correctional Facility; and R. NGUYEN, R.N., Defendants.

12 Civ. 1856 (PAC) (AJP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

August 23, 2012


REPORT AND RECOMMENDATION

ANDREW J. PECK, United States Magistrate Judge:

To the Honorable Paul A. Crotty, United States District Judge:

Pro se plaintiff Samuel J. Smolen Jr. brings this § 1983 action alleging violations of his federal constitutional rights by defendants Commissioner Brian Fischer, Superintendent Ada Perez and Nurse R. Nguyen arising out of alleged conditions of his confinement and failure to take corrective action to improve those conditions at the Downstate Correctional Facility. (Dkt. No. 2: Compl. ¶ II.) Presently before the Court are defendants' motions to dismiss. (Dkt. No. 14: Fischer & Perez Notice of Motion; Dkt. No. 27: Nguyen Notice of Motion.) For the reasons stated below, Fischer and Perez's motion to dismiss should be DENIED and Nguyen's motion to dismiss should be GRANTED.

FACTS

In March 2009, Smolen was an inmate at Downstate. (Dkt. No. 2: Compl. at 3.) Smolen alleges that the storm windows in Downstate's cells are "made of poly-carbon and highly

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flammable." (Compl. at 2B, 2C.) On March 10, 2009, a storm window in an adjoining cell caught fire causing "thick toxic smoke" to fill up the "entire area." (Compl. at 3.) Smolen was unable to open his cell window because there was no knob or crank on the window. (Compl. at 2B, 3.) Smolen claims that because he could not open his cell window when "toxic smoke" filled his cell, he suffered breathing difficulties, chest pains and post traumatic stress disorder and was taken to the prison hospital. (Compl. at 3.) Smolen further alleges that he is now on drug therapy to improve his ability to fully breathe. (Dkt. No. 25: Smolen Opp. Aff. at IV.)

Smolen alleges that Fischer and Perez knew of "the hazard of those windows . . . from previous fires." (Compl. at 2B, 2C.) Smolen asserts that any time a serious fire breaks out at Downstate, "a full report of any fires and their causes must be submitted to the Commissioner," i.e., Fischer. (Smolen Opp. Aff. at II.)1 Smolen claims that Supt. Perez "was required to file all reports

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of past fires - [including] potentially and dangerous existing conditions at Downstate." (Smolen Opp. Aff. at V.)

Additionally, Smolen alleges that there was no one to help him out of his keeplock cell when the fire broke out because the corrections officer on duty was escorting other inmates to the mess hall. (Compl. at 2C, 3.) "[H]elp finally arrived" fifteen to twenty minutes after the fire had broken out. (Compl. at 3.) Smolen alleges that Commissioner Fischer is "responsible for staffing levels at [the facility] and was fully aware - that Downstate C.F. was operating understaffed . . . ." (Smolen Opp. Aff. at II.)

Smolen alleges that Nurse Nguyen failed to adequately treat him while he suffered from "severe toxic smoke inhalation." (Compl. at 2D.) Smolen claims that Nurse Nguyen did not send Smolen to "an outside hospital for a full medical evaluation and treatment - by a medical doctor and inhalation specialist as was done for the staff members." (Compl. at 2D.) Smolen further claims that Nguyen "failed to order any tests at the time of the incident and failed to recommend any follow up tests and medical treatment." (Compl. at 2D.)

Smolen's complaint asserts that defendants Commissioner Fischer and Supt. Perez: (1) knew or should have known of the "hazardous storm windows" but were deliberately indifferent in that they took no corrective action to replace the windows; (2) did not insure that the windows had knobs so they could be opened in case of an emergency such as fire; and (3) failed to insure that the housing unit is never left unattended by staff. (Compl. ¶ II.) Smolen's complaint asserts that Nurse Nguyen failed to order any tests at the time of the incident and failed to recommend any follow up medical tests and medical treatment. (Compl. at 2D). Smolen seeks compensatory and punitive damages. (Compl. ¶ V.)

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Defendants have moved to dismiss Smolen's complaint. (Dkt. No. 14: Fischer & Perez Notice of Motion; Dkt. No. 27: Nguyen Notice of Motion.) Fischer and Perez argue that Smolen's complaint fails to state a claim for relief under 42 U.S.C. § 1983 because: (1) Smolen's storm window claim does not involve a constitutional violation (Dkt. No. 15: Fischer & Perez Br. at 3-6), (2) defendants were not personally involved in any constitutional violation (id. at 6-7), and (3) defendants are entitled to qualified immunity (id. at 7-8). Nguyen argues that Smolen's complaint fails to state a claim for relief under 42 U.S.C. § 1983 because Nguyen was not deliberately indifferent to Smolen's medical needs (Dkt. No. 28: Nguyen Br. at 3-4) and Nguyen is entitled to qualified immunity (id. at 5).

ANALYSIS

I. THE STANDARDS GOVERNING A MOTION TO DISMISS

In two decisions in 2007 and 2009, the Supreme Court significantly clarified the standard for a motion to dismiss, as follows:

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." As the Court held in Twombly, the pleading standard Rule 8 announces does not require "detailed factual allegations," but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement."

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." 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. 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. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'"

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Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But 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."

In keeping with these principles 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. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 677-79, 129 S. Ct. 1937, 1949-50 (2009) (citations omitted & emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57, 570, 127 S. Ct. 1955, 1965-66, 1974 (2007) (retiring the Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102 (1957), pleading standard that required denying a Rule 12(b)(6) motion to dismiss "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.")).2

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Even after Twombly and Iqbal, the Court's role in deciding a motion to dismiss "is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Bison Capital Corp. v. ATP Oil & Gas Corp., 10 Civ. 0714, 2010 WL 2697121 at *5 (S.D.N.Y. June 24, 2010) (Peck, M.J.) (quotations omitted), report & rec. adopted, 2010 WL 3733927 (S.D.N.Y. Sept. 16, 2010).3

Even after Twombly and Iqbal, the Court must construe a pro se complaint liberally and must use less stringent standards when reviewing a pro se complaint than if the complaint had been drafted by counsel. See, e.g., Ercole v. LaHood, No. 11-1780, 2012 WL 2345934 at *1 (2d Cir. June 21, 2012); Harris v. Mills, 572 F.3d at 72; LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991).4 However, "[d]ismissal under Rule 12(b)(6) is proper if the complaint lacks an allegation regarding an element necessary to obtain relief . . . ." 2 Moore's Federal Practice § 12.34[4][a] at

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12-99 (2012). Thus, the "'duty to liberally construe a plaintiff's complaint [is not] the equivalent of a duty to re-write it.'" Id., § 12.34[1][b] at 12-79.5

II. DEFENDANTS FISCHER AND PEREZ'S MOTION TO DISMISS SHOULD BE DENIED

A. Legal Standards Governing § 1983 Eighth Amendment Deliberate Indifference To Prison Conditions Claims

To prevail in a § 1983 action, a plaintiff must demonstrate that he has been denied a constitutional or federal statutory right and that the deprivation occurred under color of...

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