Case 1:15-cv-03030-PAE Document 7 Filed 07/06/15 Page 1 of 17

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JOSE DELACRUZ,

FIRST AMENDED
COMPLAINT

Plaintiff,
- against -

Case No.: 1:15-civ-03030-PAE

CITY OF NEW YORK, and JOHN DOES ONE
THROUGH TEN,
Defendants.
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Plaintiff, JOSE DELACRUZ, by his undersigned attorneys, HUERTA, PLLC, as and
for his complaint against defendants, CITY OF NEW YORK and JOHN DOES ONE
THROUGH TEN, and respectfully alleges upon his own personal knowledge, and upon
information and belief as to all other matters as follows:
PRELIMINARY STATEMENT
1.

This action is brought pursuant to U.S. Constitution and related statutes, a

violation of the plaintiff’s civil rights and to New York State common law negligence tort and
related claims. Plaintiff has been an inmate under the control/supervision of the CITY OF NEW
YORK since 2013. In 2014, plaintiff slipped and fell in the shower/bathroom area of prison due
to a dangerous condition/defect which the defendants, CITY OF NEW YORK and JOHN
DOES ONE THROUGH TEN, failed to cure. Through no fault of his own, plaintiff has been
made to suffer pain and injury. After such injury, plaintiff notified all defendants of such injuries,
was medically treated, and defendants took notice of plaintiff medical condition and
subsequently violated his civil rights by failing to provide adequate bedding and necessities that
plaintiff as an injured person with head, neck, and back trauma required. Plaintiff seeks redress.

Case 1:15-cv-03030-PAE Document 7 Filed 07/06/15 Page 2 of 17

JURISDICTION AND VENUE
2.

This Court has original jurisdiction over all federal law claims pursuant to 28

U.S.C. § 1331 and supplemental jurisdiction over all state law claims pursuant to 28 U.S.C. §
1367.
3.

This action properly lies in the United States District Court, Southern District of

New York, pursuant to 28 U.S.C. sec. 1391 because the unlawful civil rights abuses and
negligence alleged herein occurred in the State of New York, County of Bronx.
4.

The plaintiff has not made the request of relief herein to any other Court or judge.
PARTIES

5.

Plaintiff, JOSE DELACRUZ, at all times relevant herein, was a domiciliary of

the State of New York, County of Bronx. Plaintiff resided at Riker’s Island Prison, County of
Bronx, New York. Plaintiff has been held at Riker’s Island both before and after conviction, and
the more fully described civil rights violations have been commited against plaintiff at all times
described.
6.

That at all times herein mentioned, upon information and belief, defendant, CITY

OF NEW YORK, was and still is a municipal corporation duly licensed and existing under the
and by virtue of the laws of the State of New York and The City of New York.
7.

At all times relevant to the Complaint, defendants, JOHN DOES ONE

THROUGH TEN, true identities are unknown to plainitiff, but these defendants did cause,
create, were negligent, reckless, and wanton, failed to intervene in the negligence and (were
intentional in participating in and creating) civil rights violation as more fully described in this
Complaint.

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PROCEDURAL REQUIREMENTS
General Municipal Law § 50
8.

Plaintiff has complied with General Municipal Law section 50 and all procedural

requirements necessary to commence a lawsuit against defendants, including defendant, CITY
OF NEW YORK.
9.

This is an action for psychological injuries and damages, among other things,

sustained by Plaintiff arising out of actions perpetrated by defendant, CITY OF NEW YORK.
10.

Within ninety days after the accrual of the instant action, a satisfactory Notice of

Claim was filed with defendant, CITY OF NEW YORK, or its agent(s), on behalf of Plaintiff.
11.

Defendant, CITY OF NEW YORK, failed to demand a hearing pursuant to

section 50(h) of the General Municipal Law of New York.
12.

Defendant City of New York, and/or its agent(s), has refused or neglected to

make any adjustment or payment on plaintiff’s claims (as stated in plaintiff’s Notice of Claim).
Plaintiff commences this action within one year and ninety days of the date of accrual of the
instant action.
Prison Litigation Reform Act
42 U.S.C. § 1997e(a)
13.

That a grievance was made, for applicable claims, under 42 U.S.C. § 1997e(a) and

that such procedure was exhausted through the procedures as set for by CITY OF NEW YORK,
and/or JOHN DOES ONE THROUGH TEN.
14.

That all of or part of the claims made herein are not subject to administrative

procedure and/or such procedure cannot be properly exhausted.

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15.

All such grievances were denied by defendants, CITY OF NEW YORK, and/or

JOHN DOES ONE THROUGH TEN.
16.

Plaintiff made additional grievances to the New York Inspector General and New

York City Department of Correction Health Department. Neither of those grievances were
adjudicated as those agencies do not have a formal grievance procedure for prisoners.
17.

The nature of relief requested herein cannot be granted via the administrative

appeal process.
18.

The defendants, CITY OF NEW YORK, and/or JOHN DOES ONE

THROUGH TEN, have established a policy to deny the nature of the relief requested herein via
the administrative appeal process.
STATEMENT OF FACTS
19.

Plaintiffs repeats and realleges the foregoing allegations.

20.

Plaintiff was obeying the law at all relevant times.

21.

Plaintiff was lawfully located in Riker’s Island, Bronx County, City and State of

New York.
22.

That in 2014, plaintiff slipped and fell in the bathroom/shower at Riker’s Island

Prison – George Motchan Detention Center, Bronx County, New York.
23.

That in 2014 and 2015 the plaintiff was medically treated by defendants, CITY

OF NEW YORK and JOHN DOES ONE THROUGH TEN.
24.

That plaintiff is 6’1” (six foot and one inches) of height and 220 (two hundred and

twenty) lbs.
25.

That plaintiff is black and as such is part of a protected class under the laws of the

United States of America.

4

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26.

That after plaintiff’s injury, plaintiff asked for supplemental bedding and medical

equipment to help alleviate the pain of his suffering and pain.
27.

That defendants, CITY OF NEW YORK and/or JOHN DOES ONE

THROUGH TEN, provided plaintiff with a flimsy thin cardboard like bed that is designed to
sleep a person no larger than 5’11” (five foot and eleven inches) of height nor support the weight
of the plaintiff.
28.

That after complaint and bona-fide grievances were made, defendants, CITY OF

NEW YORK and/or JOHN DOES ONE THROUGH TEN, did not accommodate plaintiff’s
medical needs with appropriate bedding among other medical devices and/or equipment that is
appropriate for the plaintiff’s medical conditions.
29.

That the beds provided to plaintiff are in violation of health and chiropractic

regulations and/or recommendations.
30.

That plaintiff is needlessly suffering in pain and anguish because the has an

incorrect sized bed and that as such continued use did cause and will cause detriment to the
plaintiff.
31.

Further, anytime that the plaintiff attempts to “build up” his bed using additional

blankets or pillows, that the defendants, CITY OF NEW YORK and/or JOHN DOES ONE
THROUGH TEN, remove such from plaintiff’s cell.
32.

That throughout the relevant periods, plaintiff was and/or is being held by

defendant, CITY OF NEW YORK, pending trial and/or following conviction.
33.

That plaintiff is currently being held by defendants, CITY OF NEW YORK

and/or JOHN DOES ONE THROUGH TEN, awaiting sentencing.

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34.

That the torts and civil right violations as described herein are continuing in

nature.
AS AND FOR THE FIRST CLAIM FOR RELIEF
Negligence – State Claim
35.

Plaintiffs repeats and realleges the foregoing allegations.

36.

That defendant, CITY OF NEW YORK, was in possession of the plaintiff’s body

and as such has a duty to safeguard the plaintiff’s body from harm.
37.

That the defendants, CITY OF NEW YORK and/or JOHN DOES ONE

THROUGH TEN, as the manufacturer, installer, maintenance company, and/or repair man of the
slippery wet tiles, sewage drain, and water pipes that caused harm to the plaintiff, when he slipped
and fell, had a duty to inspect, repair, properly install, and/or check for defects of those defective
and dangerous conditions.
38.

That the breach of duty by defendants, CITY OF NEW YORK and/or JOHN

DOES ONE THROUGH TEN, was the sole and proximate cause to the plaintiff’s injuries.
39.

That the plaintiff was caused to be rendered sick, sore, lame, disabled, sustain

severe nervous shock and mental anguish, great physical pain and emotional upset, psychological
injuries, some of which injuries will be permanent in nature and duration, and the plaintiff will
be permanently caused to suffer pain.
40.

This action falls within one or more of the exceptions set forth in CPLR 1602.
AS AND FOR THE SECOND CLAIM FOR RELIEF
42 U.S.C. § 1983

41.

Plaintiffs repeats and realleges the foregoing allegations.

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42.

Defendants, JOHN DOES ONE THROUGH TEN, participated directly in the

violation as described herein, including the failure to provide the plaintiff with adequate required
medical care and failing to provide a proper mattress for the plaintiff’s injuries.
43.

Defendants, JOHN DOES ONE THROUGH TEN, after learning of the

violation, failed to remedy the wrong. A grievance was filed and Defendants, JOHN DOES
ONE THROUGH TEN, failed to supply plaintiff with medically required items such as an
appropriate bed for his injury.
44.

Over 90 lawsuits have been filed in this Court alleging similar facts, defendants,

JOHN DOES ONE THROUGH TEN, have created a policy or custom under which
unconstitutional practices are occurring.
45.

Defendants, JOHN DOES ONE THROUGH TEN, was grossly negligent in

supervising subordinates who caused the unlawful condition or event, scores of New York City
Department of Correction employees have been prosecuted and convicted of crimes, including
the violation of prisoner’s civil rights.
46.

Upon information and belief, defendant, JOHN DOES ONE THROUGH TEN,

at all relevant times, was aware that the defendants and other members of the Department of
Corrections are unfit who have previously committed acts similar to those alleged herein, have a
propensity for unconstitutional conduct and/or have been inadequately trained.
47.

There have been at least two class action lawsuits against the City of New York

because the Department of Corrections violated the civil rights of persons in custody on a mass
scale.

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48.

In addition to frequently violating the civil rights of countless inmates in custody

of the Department of Corrections of New York City, numerous members of the Department of
Corrections commit crimes.
49.

Ricardo Walters, a New York City Correctional Officer was sentenced to 203

years in prison, after a jury in November found him guilty of rape, kidnapping, sexual assault,
and robbery charges in connection with a series of early morning attacks, including one on a
pregnant woman.
50.

Christopher “Noel” Clavell, a New York City Correction Officer was found guilty

by a Queens jury of killing the mother of his young child.
51.

Robert Whitfield, a Correction Officer with the New York City Department of

Correction, after receiving a bribe of $100,000 in cocaine after he promised to secure an inmate's
early release, was convicted, May 30, 2013, on Criminal Possession of a Controlled Substance in
the First Degree, Conspiracy in the Second Degree, Conspiracy in the Fourth Degree, Bribe
Receiving in the First Degree, Bribe Receiving in the Second Degree and Official Misconduct.
52.

Genevieve Simmons, a New York City Correction Officer, pleaded guilty in

Manhattan federal court to one count of embezzlement of government funds.
53.

Lloyd Nicholson, a Corrections Officer at the Rikers Island Prison Complex, was

sentenced to six years in prison for a series of assaults that occurred while he worked as a guard.
A jury found Nicholson guilty of orchestrating severe beatings of teenage inmates in an
organized scheme he referred to as "The Program."
54.

Correction Officers Michael McKie and Khalid Nelson avoided 50-year jail terms

in a plea bargain deal for their roles in “The Program.” The sadistic, secret society for inmates
led to the death of 18-year-old Christopher Robinson at the hands of other Rikers inmates in

8

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October 2008. McKie, received a two-year jail term for assault and Nelson was sentenced to a
year in prison for attempted murder.
55.

In 2012, New York City Corrections Officer Denise Albright pled guilty to

conspiracy charges.
56.

Department of Correction officers Christopher Huggins, Ronald Donnelley,

Michael Dorsainvil and Mark Anglin were arrested for allegedly covering up a Rikers Island
inmate's beating on March 20, 2013.
57.

On June 26, 2013, an indictment was unsealed in the Bronx following an 11-

month investigation against 10 correction officers. Seven of the 10 were charged with assault and
attempted gang assault, and all 10 have been charged with evidence tampering. Two of the
correction officers were captains and one was the assistant chief of security.
58.

Over the last five years, about 20 correction officers have been prosecuted in

connection with assaults on inmates.
59.

On March 24, 2014, Terrence Pendergrass, a New York City correction officer

was arrested on Monday by the Federal Bureau of Investigation and charged with violating the
civil rights of a mentally ill inmate who died after begging for medical help from his cell for
hours.
60.

Defendant, JOHN DOES ONE THROUGH TEN, by failing to properly train

and adequately supervise Department of Correction employees have exhibited deliberate
indifference by failing to act on information indicating that unconstitutional acts were occurring.
61.

Defendant’s, JOHN DOES ONE THROUGH TEN, failure to act resulted in the

violation of plaintiffs’ constitutional rights as described herein.

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62.

Plaintiff has suffered excessive risk and injury as a result of the medically

inappropriate bed provided to him by defendants, JOHN DOES ONE THROUGH TEN.
AS AND FOR THE THIRD CLAIM FOR RELIEF
Failure to Intervene – State Claim
63.

Plaintiff repeats and realleges the foregoing allegations.

64.

Defendants, JOHN DOES ONE THROUGH TEN, had a reasonable

opportunity to prevent the violations of plaintiffs’ constitutional rights, but they failed to
intervene.
65.

That the plaintiff was caused to be rendered sick, sore, lame, disabled, sustain

severe nervous shock and mental anguish, great physical pain and emotional upset, psychological
injuries, some of which injuries will be permanent in nature and duration, and the plaintiff will
be permanently caused to suffer pain.
66.

Accordingly, the defendants are liable to plaintiff failing to intervene to prevent

the violation of plaintiffs’ constitutional rights.
AS AND FOR THE THIRD CLAIM FOR RELIEF
Monell Claim Against the City of New York
67.

Plaintiffs repeats and realleges the foregoing allegations.

68.

Defendant, CITY OF NEW YORK, is a “person” within the meaning of 42

U.S.C. § 1983.
69.

Defendant, CITY OF NEW YORK, through a policy, practice or custom,

directly caused the constitutional violations suffered by plaintiff. To wit: by causing a
constitutional violation of plaintiff’s rights by deliberate indifference causing, creating and
fostering an environment of injurious hazard and excessive risk to the plaintiff’s health and
safety.

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70.

Defendant, CITY OF NEW YORK, controls and operates the Department of

Corrections. The Department of Corrections houses and supervises inmates who are awaiting
trial, sentencing and are in transit to other correctional facilities.
71.

Defendant, CITY OF NEW YORK, is responsible for the health and safety of

the aforementioned group, indeed the Defendant, CITY OF NEW YORK, has a heightened
duty to care for and supervise this group as their right to freedom and self-determination has
been stripped and they are not allowed to make decisions regarding their own health and safety.
72.

Defendant, CITY OF NEW YORK, through the grievance process has learned

of the constitutional violations that have taken place upon the defendant by lack of medical care
and appropriate bedding and such due to the plaintiff medical condition.
73.

Defendant, CITY OF NEW YORK, knew of plaintiff’s medical injury and

condition prior to these constitutional violations.
74.

There have been more than 90 lawsuit filed in this Court alleging theses very

same constitutional violations. Defendant, CITY OF NEW YORK, has made a custom or
policy to deny these basic rights to the prisoners they are entrusted to care for by the people of
the State of New York and more importantly by the individual rights and freedoms guaranteed to
the plaintiff by the United States Constitution.
75.

By and through the acts of defendant, CITY OF NEW YORK, that the plaintiff

was caused to be rendered sick, sore, lame, disabled, sustain severe nervous shock and mental
anguish, great physical pain and emotional upset, psychological injuries, some of which injuries
will be permanent in nature and duration, and the plaintiff will be permanently caused to suffer
pain.

11

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76.

Upon information and belief, defendant, CITY OF NEW YORK, at all relevant

times, was aware that the defendants and other members of the Department of Corrections are
unfit who have previously committed acts similar to those alleged herein, have a propensity for
unconstitutional conduct and/or have been inadequately trained.
77.

There have been at least two class action lawsuits against the City of New York

because the Department of Corrections violated the civil rights of persons in custody on a mass
scale.
78.

In addition to frequently violating the civil rights of countless inmates in custody

of the Department of Corrections of New York City, numerous members of the Department of
Corrections commit crimes.
79.

Ricardo Walters, a New York City Correctional Officer was sentenced to 203

years in prison, after a jury in November found him guilty of rape, kidnapping, sexual assault,
and robbery charges in connection with a series of early morning attacks, including one on a
pregnant woman.
80.

Christopher “Noel” Clavell, a New York City Correction Officer was found guilty

by a Queens jury of killing the mother of his young child.
81.

Robert Whitfield, a Correction Officer with the New York City Department of

Correction, after receiving a bribe of $100,000 in cocaine after he promised to secure an inmate's
early release, was convicted, May 30, 2013, on Criminal Possession of a Controlled Substance in
the First Degree, Conspiracy in the Second Degree, Conspiracy in the Fourth Degree, Bribe
Receiving in the First Degree, Bribe Receiving in the Second Degree and Official Misconduct.
82.

Genevieve Simmons, a New York City Correction Officer, pleaded guilty in

Manhattan federal court to one count of embezzlement of government funds.

12

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83.

Lloyd Nicholson, a Corrections Officer at the Rikers Island Prison Complex, was

sentenced to six years in prison for a series of assaults that occurred while he worked as a guard.
A jury found Nicholson guilty of orchestrating severe beatings of teenage inmates in an
organized scheme he referred to as "The Program."
84.

Correction Officers Michael McKie and Khalid Nelson avoided 50-year jail terms

in a plea bargain deal for their roles in “The Program.” The sadistic, secret society for inmates
led to the death of 18-year-old Christopher Robinson at the hands of other Rikers inmates in
October 2008. McKie, received a two-year jail term for assault and Nelson was sentenced to a
year in prison for attempted murder.
85.

In 2012, New York City Corrections Officer Denise Albright pled guilty to

conspiracy charges.
86.

Department of Correction officers Christopher Huggins, Ronald Donnelley,

Michael Dorsainvil and Mark Anglin were arrested for allegedly covering up a Rikers Island
inmate's beating on March 20, 2013.
87.

On June 26, 2013, an indictment was unsealed in the Bronx following an 11-

month investigation against 10 correction officers. Seven of the 10 were charged with assault and
attempted gang assault, and all 10 have been charged with evidence tampering. Two of the
correction officers were captains and one was the assistant chief of security.
88.

Over the last five years, about 20 correction officers have been prosecuted in

connection with assaults on inmates.
89.

On March 24, 2014, Terrence Pendergrass, a New York City correction officer

was arrested on Monday by the Federal Bureau of Investigation and charged with violating the

13

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civil rights of a mentally ill inmate who died after begging for medical help from his cell for
hours.
90.

Despite the above, defendant, CITY OF NEW YORK, exercised deliberate

indifference by failing to take remedial action. The City failed to properly train, retrain,
supervise, discipline and monitor the defendants and other officers/employees like them.
91.

Defendant’s, CITY OF NEW YORK, failure to act resulted in the violation of

plaintiffs’ constitutional rights as described herein.
92.

Plaintiff has suffered excessive risk and injury as a result of the medically

inappropriate bed provided to him by defendants, CITY OF NEW YORK.

AS AND FOR THE FOURTH CLAIM FOR RELIEF
Eight Amendment
93.

Plaintiffs repeats and realleges the foregoing allegations.

94.

Plaintiff suffered a deprivation, sufficiently serious to deny him the minimal

civilized measure of life’s necessities, that is plaintiff is 6’1” and was given a mattress that can
only accommodate a 5’11” as if he were some homeless vagabond living on the street. Having a
mattress that can accommodate both your height and weight are basic items that any person who
is a prisoner should have.
95.

In this case, plaintiff is injured, and his injury happened in the jail. The defendants

CITY OF NEW YORK and JOHN DOES ONE THROUGH TEN, knew about his injury
because he reported it immediately. Further the defendants, CITY OF NEW YORK and JOHN
DOES ONE THROUGH TEN, also knew about his injury because he sought continuous
medical treatment. Further, the defendants, CITY OF NEW YORK and JOHN DOES ONE
THROUGH TEN, knew about plaintiff’s injury because of the complaints plaintiff made.

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96.

With access to his medical records, defendants, CITY OF NEW YORK and

JOHN DOES ONE THROUGH TEN, knew of the seriousness of plaintiff’s injuries. With this
knowledge, defendants, CITY OF NEW YORK and JOHN DOES ONE THROUGH TEN,
failed to provide bedding suitable for this medical condition.
97.

Defendants, CITY OF NEW YORK and JOHN DOES ONE THROUGH

TEN, with the knowledge of plaintiff’s request for suitable required bedding.
98.

Defendants acted with deliberate indifference, they knew of and disregarded

excessive risk to plaintiff’s health and safety.
99.

Defendant’s, CITY OF NEW YORK and JOHN DOES ONE THROUGH

TEN, failure to act resulted in the violation of plaintiffs’ constitutional rights as described herein.
100.

Plaintiff has suffered excessive risk and injury as a result of the medically

inappropriate bed provided to him by defendants, CITY OF NEW YORK and JOHN DOES
ONE THROUGH TEN.

WHEREFORE, as a result of defendant’s, CITY OF NEW YORK and JOHN DOES
ONE THROUGH TEN, unlawful conduct and actions alleged herein, Plaintiff demands
judgment severably and jointly:
a.

As and for each and every Claim for Relief: (a) compensatory damages in an
amount to be determined at trial; (b) punitive damages in an amount to be
determined at trial; (d) pre and post judgment interest; (e) attorney fees, costs and
disbursements; (f) and for such other and further relief as this Court may deem
just and proper.

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Dated:

New York, New York
July 6, 2015
HUERTA, PLLC
Attorneys for Plaintiff

By:

_________________________________
Michael A. Huerta (MH 0919)
Attorney & Counselor at Law
Office Address
1 World Trade Center
New York, New York 10007
(212) 729-4385 tel
(866) 959-0064 fax

Mailing Address
P.O. Box 141
New York, New York 10008

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VERIFICATION
Pursuant to CPLR 3020:
I, Michael A. Huerta, an attorney, at Huerta PLLC, admitted to the practice of law before
the Courts of the State of New York, and not a party to the above-entitled cause, affirm the
following to be true under the penalties of perjury pursuant to CPLR 2106: I have read the
foregoing Complaint and know the contents thereof, and the recitals contained in the Complaint
are true to the best of my knowledge, information and belief.
The sources of my information and the grounds of my belief as to all matters in the
foregoing Complaint not therein stated to be upon my personal knowledge are gathered from my
research involving plaintiff and defendants; investigation involving recitals of Complaint; and
information regarding Defendant that is available to the public.
I have made this verification for the plaintiff as he does not reside in the county where
my office is located.

Dated:

New York, New York
July 6, 2015

Michael A. Huerta MH0919
Attorney for Plaintiff

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