REPORT and RECOMMENDATION

KEVIN NATHANIEL FOX, Magistrate Judge.

TO THE HONORABLE PAUL A. ENGELMAYER, UNITED STATES DISTRICT JUDGE

On August 25, 2016, Antoine Ross ("Ross"), proceeding pro se, commenced this action pursuant to 42 U.S.C. § 1983, against, inter alia, the City of New York ("City"), alleging the violation of his constitutional rights under the Fourth Amendment. The City has moved to dismiss the complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). The City contends that Ross's complaint should be dismissed because he has failed to state a constitutional claim pursuant to § 1983 or to allege sufficiently the existence of an unconstitutional municipal policy or practice. Ross opposes the motion.

BACKGROUND

Procedural History

Ross filed his initial complaint on August 25, 2016, naming, as defendants, the City, Captain Willis and three John Doe officers. Ross amended his complaint for the first time on June 2, 2017, and for a second time on November 1, 2017. See Docket Entry No. 34. Ross's Second Amended Complaint named, as defendants, in addition to the City, Captain Dion Willis, Correction Officer George, Shield #732, and Correction Officer Genoves, Shield #17683.

On November 15, 2017, the City filed a motion to dismiss Ross's Second Amended Complaint, pursuant to Fed. R. Civ. P. 12(b)(6). Ross filed a third amended complaint on December 28, 2017, and a fourth, and final, amended complaint on January 5, 2018. By letter dated November 20, 2017, counsel to the City informed the court that it "intend[ed] to rely on its original motion to dismiss," including supporting documents, "as against [Ross's] Fourth Amended Complaint." Thereafter, the court referred the City's motion to dismiss to the undersigned for resolution.

Ross's Fourth Amended Complaint

Ross alleges that, on June 26, 2016, his "constitutional rights under the [F]ourth Amendment to be safe and secure in his person," were violated during an incident that tookplace when he was an inmate at the Otis Bantum Correction Center, on Riker's Island in New York. According to Ross, he was "sprayed in the face with MK-9 chemical agent by a probe team, in an effort to produce him to (sic) a court appearance." Ross alleges that, due to his asthma, "exposure to the chemical agent caused suffering [and] shortness of breath, [and] pain in [his] back and ribs." Ross alleges that he was later informed by the medical staff at the correctional facility that he "was not suppose[d] to be sprayed." According to Ross, the injuries he sustained as a result of the incident were "shortness of breath, pain in [his] back, chest and ribs" and "[e]motional psychological pain [and] trauma." Ross alleges that Captain Willis, Officer George, and Officer Genoves of the New York City Department of Corrections ("DOC") were responsible for the attack. Ross seeks $2.5 million in money damages as well as certain injunctive relief, namely, that DOC "implement a new policy on how to utilize this chemical agent."

City's Contentions

The City contends that Ross "has not articulated a municipal policy that led to his alleged constitutional deprivation and, as such, his claim against the City fails on that basis alone." The City acknowledges that, read liberally, Ross's complaint appears to suggest that DOC policy "did not require an officer to get clearance from `medical' before using the MK-9 chemical agent on a prisoner." However, they contend, Ross "fails to allege any facts, other than a single incident on June 26, 2016, to support his allegation that this was, in fact, DOC policy." Thus, the City argues, Ross's claims against the City must be dismissed on that basis alone.

The City also asserts that the plaintiffs claims regarding DOC policy are "self-contradictory" because they imply that "DOC policy did not require medical clearance to use MK-9 on him, yet, elsewhere claims that he `was seen by medical and was informed by medical staff that [he] wasn't supposed to be sprayed.'" Hence, according to the City, Ross "fails to articulate a constitutionally-deficient policy or custom" and, therefore, does not state a plausible claim for relief.

Plaintiff's Reply

The plaintiff responds to the City's motion citing evidence he contends is in his favor, including: (1) an interview of Ross by the "Investigation Division," (Ross does not identify whose "Investigation Division" conducted the interview), wherein Ross's statement was "recorded and confirmed"; (2) a Genetic video captured on 6/14/2016 and a statement from Captain Willis; (3) use of force witness reports; and (4) "[d]iscovery . . . submitted to [the] plaintiff showing true evidence and medical reports"; (5) "Inmate Voluntary Statement"; and (6) "Inmate Medical Reports."

DISCUSSION

Legal Standard

Ashcroft v. Iqbal, 556 U.S. 662,678, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly. 550 U.S. 544,570, 127 S.Ct. 1955, 1974 (2007)).

"In addressing the sufficiency of a complaint we accept as true all factual allegations and draw from them all reasonable inferences but we are not required to credit conclusory allegations or legal conclusions couched as factual allegations." Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (quoting Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir. 2013)); see also Interpharm, Inc. v. Wells Fargo Bank, Nat'l Ass'n, 655 F.3d 136, 141 (2d Cir. 2011) (on a motion to dismiss pursuant to Rule 12(b)(6) we "assum[e] all facts alleged within the four comers of the complaint to be true, and draw[] all reasonable inferences in plaintiff's favor").

"It is well established that the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest." Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citation omitted). "Nonetheless, a prose complaint must state a plausible claim for relief." Nielsen, 746 F.3d at 63 (citation omitted).

In bringing this action, Ross alleges a violation of his constitutional rights under the Fourth Amendment. The Fourth Amendment protects the rights of the people "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. However, interpreting Ross's submissions to "raise the strongest arguments that they suggest," the Court understands his claims, construed liberally, to invoke the Eighth and Fourteenth Amendments, in that he alleges being subjected to cruel and unusual punishment by the City's correction officers stemming from excessive force they employed on him when they sprayed a chemical agent in his face to procure him for a court appearance. "The Eighth Amendment provides: `Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.' The provision is applicable to the States through the Fourteenth Amendment." Roper v. Simmons, 543 U.S. 551, 560, 125 S.Ct. 1183, 1190 (2005). The Eighth Amendment grants individuals the right not to be subjected to excessive sanctions. See Atkins v. Virginia, 536 U.S. 304, 311, 122 S.Ct. 2242, 2246 (2002).

To state an Eighth Amendment violation claim premised on the use of excessive force, a plaintiff must allege facts tending to show two things: 1) subjectively, that the defendant acted with wantonness and in bad faith in light of the particular circumstances surrounding the challenged conduct; and 2) objectively, that the defendants' actions violated contemporary standards of decency. See Blyden v. Mancusi, 186 F.3d 252, 262-63 (2d Cir. 1999). "When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency are always violated. This is true whether or not significant injury is evident." Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 1000 (1992). "Although not every malevolent touch by a prison guard gives rise to a federal cause of action . . . inmates have the right to be free from the unnecessary and wanton infliction of pain at the hands of prison officials." Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013) (citations and internal quotation marks omitted).

Section 1983 subjects only persons to liability. See 42 U.S.C. § 1983. However, in Monell v. Department of Social Servs. of the City of New York, 436 U.S. 658, 98 S. Ct. ` (1978), the Supreme Court determined that a municipality is a person within the meaning of Section 1983. See Monell, 436 U.S. at 690, 98 S. Ct. at 2035. To survive the Fed. R. Civ. P. 12(b)(6) motion made by the City, Ross must allege facts plausibly tending to show that the unconstitutional acts he attributes to the corrections officers in this § 1983 action, spraying his face with a chemical agent, "resulted from a municipal custom or policy" of the City. Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995). Ross alleges that he was told by the medical staff at the jail facility that "he was not supposed to be sprayed." This suggests the existence of a policy regarding the use of the MK-9 chemical agent. However, Ross has not alleged facts plausibly tending to show that the: 1) policy resulted in wanton conduct by the corrections officers; or 2) conduct of the officers objectively violated contemporary standards of decency. Therefore, in the circumstance of this case, Ross has not alleged facts plausibly tending to show that he suffered a violation of his Eighth and Fourteenth Amendment rights due to a policy of the City. Therefore, granting the City's motion to dismiss the complaint is warranted.

RECOMMENDATION

For the reasons set forth above, I recommend that the City's motion to dismiss, Docket Entry No. 35, be granted.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

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 objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Paul A. Engelmayer, 500 Pearl Street, Room 2201, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 425, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Engelmayer. Failure to file objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).