Opinion
20-CV-7621 (AT) (JLC)
05-11-2022
TYRONE H. MASSEY, Plaintiff, v. CORRECTIONAL OFFICER MICHELE, et ano., Defendants.
TO THE HONORABLE ANALISA TORRES, UNITED STATES DISTRICT JUDGE:
REPORT & RECOMMENDATION
JAMES L. COTT, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Tyrone H. Massey, proceeding pro se, brings this § 1983 action pursuant to the Eighth and Fourteenth Amendments to the United States Constitution. Massey alleges that Captain Ahmed and Correctional Officer Michele (“Defendants”) of the New York City Department of Correction were deliberately indifferent to his medical needs when they delayed treatment after an incident in which he inhaled smoke from a fire while detained at Rikers Island. Defendants have moved to dismiss Massey's Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. For the reasons set forth below, I recommend that Defendants' motion be granted and that the case be dismissed with prejudice.
I. BACKGROUND
A. Factual Background
The following facts are taken from the Amended Complaint dated September 7, 2021 and its attachments (“Am. Compl.”), Dkt. No. 25, and are accepted as true for the purposes of the pending motion. See, e.g., Smolen v. Wesley, No. 16-CV-2417 (KMK), 2019 WL 4727311, at *4 (S.D.N.Y. Sept. 25, 2019) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)); Coleman v. State Supreme Ct., 697 F.Supp.2d 493, 503 (S.D.N.Y. 2010) (where plaintiff is proceeding pro se, court assessing legal sufficiency of claims may consider any document attached to complaint or incorporated therein by reference).
At the time of the incident that gave rise to this suit, Massey was a pretrial detainee at the George R. Vierno Center on Rikers Island (“GRVC”). Am. Compl. at 4. He alleges that on December 22, 2019, a fire broke out and his cell filled with smoke. Id. He reports that he began inhaling smoke and experienced “excruciating chest pains, shortness of breath, blurry vision, burning eyes, burning throat, [and] pains.” Id. According to Massey, he “scream[ed]” for New York City Department of Correction (“DOC”) Correctional Officer Michele (“Michele”) and DOC Captain Ahmed (“Ahmed”) to let him out of the cell because it was full of smoke, and to escort him to the clinic. Id. He contends that in response, they repeatedly told him, “you gonna stay in that cell and die.” Id. He allegedly continued to ask Defendants to take him to the clinic so he could receive his anti-seizure medication, because he began experiencing “involuntary muscle movements,” and grew concerned that he might have “an actual seizure episode.” Id. at 4-5. Massey alleges that Defendants were “aware of the risk of [him] being harmed” and denied him access to the clinic and his seizure medication for the remainder of their tour of duty. Id. at 5. The next day, another officer making the rounds found Massey unconscious in his cell. Id. at 6. That officer activated a medical emergency, and Massey was escorted to the hospital. Id.
According to Massey, Defendants were aware of the risk of him being harmed throughout this incident, and therefore were “deliberately indifferent to [his] serious medical needs subjecting [him] to unnecessary pain and suffering” in violation of his Eighth and Fourteenth Amendment rights. Id. at 5. Massey contends that had Defendants not denied him medical care, he would not have suffered a seizure the following day or been unresponsive. Id. at 6.
B. Procedural Background
Massey filed his original complaint on September 15, 2020, in which he brought suit against the City of New York, DOC, and Michele. Complaint, Dkt. No. 2. DOC was terminated as a Defendant on October 8, 2020, because it is not an entity that can be sued in its own name. Dkt. No. 8 (citing N.Y. City Charter ch. 17, § 396). On January 4, 2021, the City of New York filed a motion to dismiss. Dkt. No. 15. In response, Massey filed an Amended Complaint against Captain Ahmed and Correctional Officer Michele on September 7, 2021, and the City of New York was terminated as a Defendant. Am. Compl., Dkt. No. 25. On October 22, 2021, Defendants moved to dismiss the Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Memorandum of Law in Support of Defendants' Motion to Dismiss (“Def. Mem.”), Dkt. No. 30. Massey did not file any opposition papers to the motion, despite being given an extension of time to do so. See Dkt. No. 35.
II. DISCUSSION
A. Legal Standards
1. Rule 12(b)(6) Motions
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g., Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009). To survive a Rule 12(b)(6) motion, the plaintiff must plead sufficient facts “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). The plaintiff must allege facts sufficient to show “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint that offers only “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Furthermore, if the plaintiff has not “nudged [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed.” Id. at 570.
In deciding a Rule 12(b)(6) motion, a court may consider matters of which judicial notice may be taken under Rule 201 of the Federal Rules of Evidence. See, e.g., Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006); Kramer v. Time Warner, Inc., 937 F.2d 767, 773-75 (2d Cir. 1991). Such matters include “documents that are publicly available and whose accuracy cannot reasonably be questioned.” See Apotex, Inc. v. Acorda Therapeutics, Inc., 823 F.3d 51, 60 (2d Cir. 2016).
Finally, when deciding an unopposed motion to dismiss,
the Court is to ‘assume the truth of a pleading's factual allegations and test only its legal sufficiency. Thus, although a party is to be given a reasonable opportunity to respond to an opponent's motion, the sufficiency of a complaint is a matter of law that the court is capable of determining based on its own reading of the pleading and knowledge of the law.'Jones v. Westchester County, No. 20-CV-8542 (PMH), 2022 WL 1406591, at *3 (S.D.N.Y. May 4, 2022) (quoting McCall v. Pataki, 232 F.3d 321, 322-23 (2d Cir. 2000)).
2. Section 1983 Claims
To state a claim under § 1983, a plaintiff must allege that the challenged conduct (1) was “committed by a person acting under color of state law,” and (2) “deprived [the plaintiff] of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994)). Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979). “The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992).
3. Standards Applicable to Pro Se Litigants
Because Massey is proceeding pro se, his submissions are held “to less stringent standards than formal pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks omitted); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts are “obligated to construe a pro se complaint liberally”). Nevertheless, pro se plaintiffs are not excused from the normal rules of pleading and “dismissal under Rule 12(b)(6) is proper if the complaint lacks an allegation regarding an element necessary to obtain relief.” Geldzahler v. N.Y. Med. Coll., 663 F.Supp.2d 379, 387 (S.D.N.Y. 2009) (cleaned up). Thus, the “duty to liberally construe a plaintiff's complaint [is not] the equivalent of a duty to re-write it.” Id. (cleaned up); see, e.g., Joyner v. Greiner, 195 F.Supp.2d 500, 503 (S.D.N.Y. 2002) (dismissing action because pro se plaintiff “failed to allege facts tending to establish” that defendants violated his constitutional rights).
Notably, Massey is an experienced litigant in this Court, having filed many lawsuits over the years. See, e.g., Massey v. Smart, et al., No. 20-CV-9719 (AJN) (OTW); Massey v. Sapp, et al., No. 19-CV-11902 (GBD) (KNF); Massey v. City of New York, et al., No. 20-CV-07617 (ALC); Massey v. City of New York, et al., No. 20-CV-7622 (LTS) (RWL); Massey v. Holder, et al., No. 20-CV-8067 (RA) (OTW); Massey v. Hernandez, et al., No. 20-CV-8633 (GHW); Massey v. Bolanos, et al., No. 20-CV-8592 (LGS) (RWL); and Massey v. Iosif Shpits, No. 20-CV-8828 (LGS) (RWL). Thus, the degree of solicitude afforded to a pro se plaintiff like Massey “may be lessened where the particular pro se litigant is experienced in litigation and familiar with the procedural setting presented.” Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010).
B. Analysis
Defendants argue that the Amended Complaint should be dismissed for two reasons: (1) Massey failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”); and (2) the Amended Complaint fails to support a claim for deliberate indifference to Massey's medical needs because the delay in his treatment was neither sufficiently serious, nor was it the result of Defendants' reckless failure to act with reasonable care. Def. Mem. at 3, 8. As discussed below, Massey failed to exhaust his administrative remedies. Additionally, any delay in Massey's treatment was not the result of Defendants' reckless failure to act with reasonable care.
1. Massey Did Not Exhaust Available Administrative Remedies As Required Under the PLRA
The PLRA provides that “[n]o action shall be brought with respect to prison conditions under [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) (2012); see also Martin v. City of N.Y., No. 11-CV-600 (PKC) (RLE), 2012 WL 1392648, at *4 (S.D.N.Y. Apr. 20, 2012) (PLRA “requires that a prisoner exhaust all available administrative remedies before bringing an action regarding his confinement”). Failure to exhaust all available administrative remedies is grounds for dismissal. Booth v. Churner, 532 U.S. 731, 741 (2001) (affirming dismissal of prisoner's § 1983 complaint for failure to exhaust all available administrative remedies because prisoner did not appeal unfavorable administrative decision to highest level of review). Courts may dismiss a complaint where a failure to exhaust administrative remedies under the PLRA appears on the face of the pleadings. Williams v. Correction Officer Priatno, 829 F.3d 118, 122 (2d Cir. 2016).
Under the PLRA, “proper exhaustion” means “compliance with an agency's deadlines and other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). To exhaust administrative remedies, all appeals available through the prison's grievance system must be used. See, e.g., Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001). For inmates at Rikers such as Massey, the requisite grievance procedures specific to New York City jails are detailed in the New York City DOC Directive 3376R-A, Inmate Grievance Procedures. See DOC, Directive No. 3376R-A, Inmate Grievance Procedures Program (2018), Def. Mem. at 4, n.1. (“IGRP”). The IGRP also establishes specific procedures for “non-grievable complaints,” or complaints that cannot be fully resolved through the grievance process. Id. at §§ V(I)-(L). There are “no limits on an inmate's obligation to exhaust-irrespective of any ‘special circumstances,'” apart from the “significant qualifier” that “the remedies must indeed be ‘available' to the prisoner.” Ross v. Blake, 578 U.S. 632, 639 (2016); see also Whittington v. Ponte, No. 16-CV-1152 (AJN), 2020 WL 2750372, at *8 (S.D.N.Y. May 27, 2020) (“the PLRA carves out a narrow exception to the exhaustion requirement” when the “failure to exhaust should be excused because administrative remedies were unavailable”).
The Court takes judicial notice of the DOC Inmate Grievance Resolution Program. See Massey v. Sapp, 2021 WL 4461825, at *2 n.2 (citing Sanders v. Cty. of N.Y., No. 16-CV-7246 (PGG), 2018 WL 3117508, at *4 n.1 (S.D.N.Y. June 25, 2018) (“It is common practice in this District to take judicial notice of the version of the IGRP in effect at the time of the events giving rise to [a prisoner's] claim.”)).
Here, Massey did not exhaust all available administrative remedies prior to initiating this lawsuit. In his Amended Complaint, Massey contends that his claims are not subject to the PLRA's exhaustion requirement because the issue he raised -deliberate indifference to medical needs - was a “staff complaint.” Am. Compl. at 6-7. Massey notes that staff complaints are classified as “non-grievable” because the City of NY DOC Office of Constituent and Grievance Services Inmate Statement Form lists “staff complaints” on the list of “categories not subject to the grievance process.” Id. at 6, 7. He argues that because his issue was a non-grievable “staff complaint,” administrative remedies were “unavailable” to him. Id. at 6.
While Massey correctly asserts that the NY DOC Inmate Statement Form provided to inmates at Rikers lists “staff complaints” under the list of “categories not subject to the grievance process,” id. at 7, he nonetheless had access to available administrative remedies related to the incident giving rise to his Amended Complaint, as provided in the IGRP. As an initial matter, “claims relating to access to medical care filed against corrections officers do fall within [the IGRP]'s purview.” Leneau v. City of New York, No. 16-CV-893 (RA), 2018 WL 583120, at *3 (S.D.N.Y. Jan. 26, 2018). Further, as explained above, the IGRP contains administrative procedures specifically available for “non-grievable complaints” or complaints that cannot be fully resolved through the grievance process. IGRP at §§ V(I)-(L). Moreover, inmate grievances that are “non-grievable” are not necessarily without an administrative remedy unless they fall within three exceptions: (1) when a remedy “operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) when a remedy is “so opaque that it becomes, practically speaking, incapable of use”; and (3) when “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 578 U.S. at 64344; see also Williams, 829 F.3d at 123-24.
Here, Massey does not plead any facts to suggest that administrative remedies were unavailable to him based on any of the three exceptions. See id.; Stewart v. Cty. of Suffolk, No. 16-CV-1871 (JMA) (SIL), 2018 WL 6079966, at *3 (E.D.N.Y. Nov. 21, 2018) (plaintiff failed to exhaust remedies available when, among other things, he “does not make any argument that he fits in one of the three circumstances outlined by the Supreme Court in Ross . . .”). Further, Massey's “mistaken belief” that administrative remedies were unavailable to him based on the language of the Inmate Statement Form, “even if reasonable . . . does not excuse his failure to exhaust.” Lev v. Lewin, No. 9:19-CV-61 (BKS/DJS), 2020 WL 95432, at *4 (N.D.N.Y. Jan. 8, 2020) (summary judgment granted when plaintiff failed to exhaust administrative remedies despite belief that his issue “was not grievable”); see also Stewart, 2018 WL 6079966, at *3 (plaintiff's “misinterpretation of the Inmate Handbook” did not excuse him from exhausting available administrative remedies). Massey's argument that his issue was non-grievable, and thus administrative remedies were not available for purposes of the PLRA's exhaustion requirement, is therefore without merit.
Additionally, Massey acknowledges in his own complaint that he did not follow the grievance procedures. Am. Compl. at 6 (“filing grievances about this incident was not necessary as ‘staff complaints are non grievable'”). “Courts in this District routinely grant motions to dismiss where a plaintiff's non-exhaustion is clear from the face of the complaint.” Hickman v. Cty. of N.Y., No. 20-CV-4699 (RA) (OTW), 2021 WL 3604786, at *2 (S.D.N.Y. Aug. 12, 2021) (collecting cases); see also Massey v. Sapp, No. 19-CV-11902 (GBD) (KNF), 2021 WL 4461825, at *3 (S.D.N.Y. Sept. 29, 2021) (dismissing complaint when failure to exhaust “unambiguous” from face of complaint where plaintiff wrote: “I did not file a grievance because a staff complaint which is this is not subject to the grievance procedure”). Accordingly, Massey's amended complaint should be dismissed for failure to properly exhaust all available administrative remedies.
Notably, this would be the third time that Massey would have a case dismissed on exhaustion grounds. In Massey v. Sapp, 2021 WL 4461825, at *3-4, a case in which Massey alleged a fire in his cell on December 7-8, 2019 caused him harm and led to violations of his constitutional rights, the court dismissed Massey's complaint with prejudice on exhaustion grounds, finding that non-exhaustion was clear from the face of the complaint, and that administrative remedies were available. In Massey v. City of New York, No. 20-CV-5665 (GBD) (DF), 2021 WL 4943564, at *9 (S.D.N.Y. Aug. 30, 2021), adopted by 2021 WL 4459459 (Sept. 29, 2021), a case in which Massey alleged a fire in his cell on May 5, 2020 caused him harm and led to violations of his constitutional rights, the court also dismissed his case on exhaustion grounds for similar reasons. These decisions, and the authorities cited therein, provide additional support for this Court's recommendation to dismiss the Amended Complaint on exhaustion grounds.
The court also noted that the substantive issue of deliberate indifference to medical needs is a grievance subject to the IGRP. See Massey v. Sapp, 2021 WL 4461825, at *5.
2. Massey Did Not Assert a Cognizable Claim for Deliberate Indifference
Even if the Court were to reach the merits of his claims, Massey has not alleged a cognizable claim of deliberate indifference to his serious medical needs.Massey alleges that Defendants acted with deliberate indifference to his serious medical needs in violation of his Eighth and Fourteenth Amendment rights. Am. Compl. at 5. Because Massey was a pretrial detainee at the time of the alleged incident, a Fourteenth Amendment analysis applies. “A pretrial detainee's claims of unconstitutional conditions of confinement are governed by the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishments Clause of the Eighth Amendment.” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). The Due Process Clause of the Fourteenth Amendment creates “‘an affirmative duty to protect those held in [the state's] custody.'” Cash v. Cty. of Erie, 654 F.3d 324, 335 (2d Cir. 2011) (quoting Villante v. Dep't of Corr., 786 F.2d 516, 519 (2d Cir.1986)). Both the Eighth and Fourteenth Amendments “proscribe ‘deliberate indifference to serious medical needs' of prisoners or detainees . . . and Section 1983 allows lawsuits for violations of either Amendment.” Davis v. Cty. of Nassau, 355 F.Supp.2d 668, 674 (E.D.N.Y. 2005).
The reviewing court does not need to reach this issue given Massey's failure to exhaust, but for purposes of completeness this analysis is provided as an alternative ground for dismissal.
To establish a § 1983 claim for deliberate indifference in violation of due process, a pretrial detainee must plead sufficient facts to satisfy both parts of a twopronged test: an objective prong and a subjective prong. Darnell, 849 F.3d at 29. First, a plaintiff must satisfy the “‘objective prong' showing that the challenged conditions were sufficiently serious to constitute objective deprivations of the right to due process.” Id. In the context of a claim for deliberate indifference to serious medical needs, a plaintiff must show that the medical need was “sufficiently serious.” Wilson v. Seiter, 501 U.S. 294, 303-04 (1991). A “serious medical need” is “a condition of urgency, one that may produce death, degeneration, or extreme pain.” Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005). “There is no settled, precise metric to guide a court in its estimation of the seriousness of a prisoner's medical condition.” Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003). However, in cases where the alleged injury stems from an unreasonable delay in treatment, “the seriousness inquiry focuses on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone.” Davis v. McCready, 283 F.Supp.3d 108, 120 (S.D.N.Y. 2017); see also Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003).
To determine whether a delay or interruption in treatment is sufficiently serious, “the actual medical consequences that flow from the alleged denial of care will be highly relevant.” Reid v. City of New York, No. 20-CV-644 (GBD) (JLC), 2021 WL 3477243, at *9 (S.D.N.Y. Aug. 6, 2021) (quoting Smith, 316 F.3d at 187), adopted by 2021 WL 4177756 (Sept. 14, 2021). In this Circuit, where delays in medical treatment have been found to be objectively serious, “they have involved either a needlessly prolonged period of delay, or a delay which caused extreme pain or exacerbated a serious illness.” Morgan v. Shivers, No. 14-CV-7921 (GHW), 2018 WL 618451, at *8 (S.D.N.Y. Jan. 29, 2018) (internal quotation marks omitted) (collecting cases).
Second, a plaintiff must satisfy a “‘subjective prong' . . . showing that the officer acted with at least deliberate indifference to the challenged conditions.” Darnell, 849 F.3d at 29. In the context of a deliberate indifference claim, the subjective prong is “better classified as a ‘mens rea prong' or ‘mental element prong.'” Id. To satisfy the subjective prong of a deliberate indifference claim, a pretrial detainee must show that the defendants either knew or should have known that “failing to provide the complained of medical treatment would pose a substantial risk to his health.” Charles v. Orange Cnty., 925 F.3d 73, 87 (2d Cir. 2019).
With respect to the first prong - the objective prong - Massey has alleged a “sufficiently serious” deprivation of medical care and delay in treatment. Darnell, 849 F.3d at 29. Massey contends that he suffered injuries from smoke inhalation in his cell, was deprived of his seizure medication, and had a seizure the following day. Am. Compl. at 4-5. Further, he alleges that he “probably” would not have been found unconscious and having a seizure, were it not for the delay in medical treatment. Am. Compl. at 6. Other courts in this District have found that a plaintiff's allegations of 1) injuries from exposure to smoke following a fire in his cell, and 2) prescribed medication withheld from him are “sufficiently serious to constitute a deprivation of due process.” Ritter v. Montoya, No. 20-CV-114 (JGK), 2021 WL 230205, at *3 (S.D.N.Y. Jan. 22, 2021); see also Hill v. City of New York, No. 13-CV-8901 (KPF), 2015 WL 246359, at *3 (S.D.N.Y. Jan. 20, 2015) (plaintiff alleged sufficiently serious deprivation when smoke entered cell causing him to lose consciousness). Such is the case here. Accepting his allegations as true, Massey has pleaded sufficient facts to enable the Court to determine “the actual medical consequences that flow” from Defendants' alleged delay of care. Smith, 316 F.3d at 187. Therefore, Massey has satisfied the objective prong of the deliberate indifference analysis, at least at this stage of the proceedings.
However, Massey has failed to plead sufficient facts to meet the subjective prong also required to establish a claim for deliberate indifference. Massey asserts that Defendants were aware of the risk of him being harmed and told him that he was “gonna stay in that cell and die” despite Massey “begging for [his] seizure medication.” Am. Compl. at 4-5. “Ignoring requests for medical care made by a prisoner known to be an epileptic may constitute deliberate indifference to serious medical needs, particularly when it is undisputed that the inmate suffered a seizure after those requests.” Boomer v. Lanigan, No. 00-CV-5540 (DLC), 2002 WL 31413804, at *7 (S.D.N.Y. 2002). Nevertheless, the subjective prong requires that Defendants either knew or should have known of the “substantial risk” of harm posed to Massey. See Charles, 925 F.3d at 87. “A plaintiffs bare assertion that he might have a seizure is not indicative of deliberate indifference,” and neither does the delay of treatment “plausibly suggest” deliberate indifference. Easley v. Loverme, No. 18-CV-6326 (CJS), 2020 WL 2557809, at *8 (W.D.N.Y. May 20, 2020).
Here, Massey fails to allege any facts from which the Court could plausibly infer that he was “known to be an epileptic” to Defendants (or otherwise susceptible to seizures), Boomer, 2002 WL 31413804, at *7, apart from his own general and conclusory statements that Defendants “were both aware of the risk of [Massey] being harmed . . . and deliberately indifferent to [his] serious medical needs ....” Am. Compl. at 4-5. Massey does not assert, for example, that Defendants knew the serious nature of his health condition, diagnosed him, maintained medical records, created treatment plans, or engaged in any similar act. See Charles, 925 F.3d at 88.
Therefore, Massey has not pled sufficient facts to meet the subjective prong. Accordingly, Massey has failed to assert a cognizable claim for deliberate indifference to serious medical needs.
3. The Amended Complaint Should be Dismissed With Prejudice
“Pro se plaintiffs are allowed an opportunity to amend their complaint before the Court will dismiss it with prejudice.” Delorenzo v. Schiff, No. 20-CV-7935 (NSR), 2022 WL 889241, at *5 (S.D.N.Y. Mar. 25, 2022) (citing Owens v. N.Y.C. Dep't of Sanitation, No. 11-CV-8297 (ALC), 2013 WL 150245, at *3 (S.D.N.Y. Jan. 15, 2013)). Generally, “[b]ecause a failure to exhaust can be remedied through the pursuit of administrative process, ‘a dismissal for failure to exhaust available administrative remedies should be ‘without prejudice.''” Holt v. Town of Stonington, 765 F.3d 127, 133 (2d Cir. 2014) (quoting Standard Inv. Chartered, Inc. v. Nat'l Ass'n of Sec. Dealers, Inc., 560 F.3d 118, 124 (2d Cir.2009)). Nevertheless, dismissal with prejudice is appropriate where further attempts to amend the complaint would be futile. See, e.g., Dash v. Mayers, No. 19-CV-414 (GBD) (JLC), 2020 WL 1946303, at *9 (S.D.N.Y. Apr. 23, 2020), adopted sub nom. Dash v. Doe, No. 19-CIV-414 (GBD) (JLC), 2020 WL 3057133 (June 9, 2020).
Here, Massey has already had opportunities to plead additional facts to survive a motion to dismiss. First, he filed an Amended Complaint on September 7, 2021. Second, Massey did not file opposition papers to the motion to dismiss the Amended Complaint. See Pflaum v. Town of Stuyvesant, 937 F.Supp.2d 289, 300 (N.D.N.Y. 2013) (pro se plaintiff's papers in response to defendant's motion to dismiss may be considered as effectively amending allegations of complaint).
More importantly, the time to exhaust his administrative remedies with respect to the incident giving rise to his claims has long since passed. In these circumstances, dismissal with prejudice is appropriate. See Massey, 2021 WL 4461825, at *5 (“‘[W]here exhaustion was required but administrative remedies have become unavailable after the prisoner had ample opportunity to use them and no special circumstances justified failure to exhaust' - dismissal with prejudice is required.”) (quoting Berry v. Kerik, 366 F.3d 85, 88 (2d Cir. 2004)); Massey, 2021 WL 4943564, at *11 (courts generally dismiss claims with prejudice where plaintiff had opportunity to exhaust administrative remedies, failed to do so, and is no longer able to cure the defect) (citing Felix v. Simon, 303 Fed.Appx. 21, 22 (2d Cir. 2008)).
According to the IGRP, DOC staff may grant an extension to file a grievance no more than ten days from the alleged incident. Massey, 2021 WL 4461825, at *5 (citing IGRP § XI(B)(1)). Since it has been more than two years since the December 2019 incident giving rise to this suit, Massey's failure to exhaust is incurable.
Based on the NYC Department of Correction Inmate Lookup Service, it appears that Massey was released on April 25, 2022. New York City Department of Correction, Inmate Lookup Service, available at https://a073-ils-web.nyc.gov/inmatelookup/pages/home/home.jsf (last accessed May 11, 2022). Nonetheless, Massey has not provided an updated address to the Court.
III. CONCLUSION
For the foregoing reasons, I recommend that Defendants' motion to dismiss be granted, and the Amended Complaint be dismissed with prejudice.
PROCEDURE FOR FILING OBJECTIONS
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 such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres, United States Courthouse, 500 Pearl Street, New York, NY 10007. Any requests for an extension of time for filing objections must be directed to Judge Torres.
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).