21

- 3033

- cv Leggett v. Oneida Cnty. Corr. Facility 

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC D ATABASE (WITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19 th da y of October , two thousand twenty
- two . PRESENT: SUSAN L. CARNEY , JOSEPH F. BIANCO , MYRNA PÉREZ , Circuit Judges.

_____________________________________ Michael Leggett , Plaintiff

- Appellant ,

v. 21

- 3033

- cv Oneida County Correctional Facility, Jonathan Wigderson, D.O. Orthopedic Surgeon, Oneida County Correctional Facility , Defendant s -

Appellee s
.

_____________________________________

FOR PLAINTIFF

- APPELLANT: Michael Leggett , pro se , Utica , NY

. FOR DEFENDANT S

- APPELLEE S : Kenneth L

. Bobrow , Felt Evans, LLP, Clinton, NY.2 Appeal from a n order of the United States District Court for the Northern District of New York ( Hurd , J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order of the district court is AFFIRMED

. Appellant Michael Leggett , proceeding pro se and incarcerated at the time of these events , appeals the district court ’ s sua sponte dismissal of his claims , pursuant to 42 U.S.C. § 1983 , against Oneida County Correctional Facility (the “Oneida Facility”) and physician Jonathan Wigderson (“Dr. Wigderson”) for failure to state a claim

. S ee 28 U.S.C. §§ 1915(e)(2)(B) and 1915A

. Leggett alleged Eighth Amendment violations based on his conditions of confinement and inadequate medical care

. In particular, Leggett asserted that he slipped and fell d ue to water spilling from a broken, leaky sink at the Oneida Facility, resulting in a fractur e in his left knee

. Leggett further alleged the medical care for his fractured knee was inadequate because h e was given only a brace for the knee , without surgic al intervention. We assume the parties ’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal , to which we refer only as necessary to explain our decision to affirm. 1 Sua sponte dismissals for failure to state a claim are reviewed de novo

. McEachin v.
McGuinnis , 357 F.3d 197, 200 (2d Cir. 2004). We accept as true all well

- pleaded factual allegations in the complaint and draw all reasonable inferences in Leggett’s favor , assessing

1 As a threshold matter, we note that, a lthough the district court’s dismissal was in part without prejudice and Leggett was granted leave to amend, he chose to appeal rather than amend his complaint. The deadline to amend has now expired, and judgment has been entered by operati on of law. See Fed. R. Civ. P. 58(c)(2)(B); Fed. R. App. P. 4(a)(7)(A)(ii). Accordingly, we have appellate jurisdiction to review the dismissal order under 28 U.S.C. § 1291. See Slayton v. Am. Exp. Co. , 460 F.3d 215, 224 & n.7 (2d Cir. 2006)

.3 whether the complaint “ state [ s ] a claim to relief that is plausible on its face

. ” See Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)

. Moreover, although we construe pro se submissions

“ liberally

. . . to raise the strongest arguments that they suggest,” Triestman v. Fed. Bureau of
Prisons , 470 F.3d 471, 474 (2d Cir. 2006) (emphasis and internal quotation marks omitted), a pr o

se complaint must nevertheless contain “factual allegations sufficient to meet the plausibility requirement,” Hill v. Curcione , 657 F.3d 116, 122 (2d Cir. 2011).
T he district court properly dismissed the claims against Oneida County (the “County”)

. 2 Municipalities are liable under Section 1983 only if the challenged conduct was pursuant to a municipal policy or custom

. Monell v. Dep ’ t of Soc. Servs. , 436 U.S. 658 , 692

– 94 (1978) ; Patterson v. C ou nty of Oneida , 375 F.3d 206, 226 (2d Cir. 2004). The co mplaint does not contain

any facts that could support a reasonable inference that the alleged wrongdoing , whether relating to his conditions of confinement or his medical treatment, occurred pursuant to a policy or custom
of the C ounty or its correctional facility

. Accordingly, the complaint failed to state a plausible
Monell claim against the County. See 436 U.S. at 691 (“ [A] municipality cannot be held liable solely because it employs a tortfeasor

. . . . ”). Additionally , the complaint failed to state a plausible claim against an individual defendant

. With respect to the conditions of confinement claim, the complaint did not name an individual at the Oneida Facility who might have been personally involved in creating or failing to remediate
the allegedly unsafe condition

— namely, the wet floor caused by a leaking sink

. See Brandon v.

2 Leggett does not challenge the district court’s determination that the C ounty, rather than the Oneida Facility , was the proper defendant because the Oneida Facility lacks the capacity to be sued as an administrative arm of the C ounty with no legal identit y separate and apart from the C ounty

.4 Kinter , 938 F.3d 21, 36 (2d Cir. 2019) (requiring “ personal involvement of defendants” under
Section 1983). In any event, the complaint fai l s to contain any facts that plausibly show that the
condition was objectively an “unquestioned and serious deprivation[] of basic human needs , ” the first requirement for this type of Eighth Amendment claim. Jolly v. Coughlin , 76 F.3d 468, 480 (2d Cir. 19 96) ; see also McCray v. Lee , 963 F.3d 110, 120 (2d Cir. 2020) (holding that slippery conditions in a recreation yard were not a grave and intolerable risk under the Eighth Amendment)

. In addition, the complaint lacks any allegations that could establish the requisite subjective
intent

— deliberate indifference

— on the part of any individual responsible for the allegedly unsafe
condition

. See Hayes v. N.Y.C. Dep ’ t of Cor r
. , 84 F.3d 614, 620 (2d Cir. 1996). Instead, at m ost,
the allegations suggest negligence, which is insufficient to give rise to a n Eighth Amendment
conditions of confinement claim. See Edwards v. Quiros , 986 F.3d 187, 192 (2d Cir. 2021)

. As to the Eighth Amendment claim against Dr. Wigderson alleging inadequate medical

care , the complaint fails to describe how Dr. Wigderson was personally involved in the treatment of Leggett’s knee , as is required to survive a motion to dismiss

. See Brandon , 93 8 F.3d at 36. Moreover, even assuming arguendo t hat Dr. Wigderson treated Leggett’s knee condition, the complaint fails to adequately allege the requisite “deliberate indifference to his serious medical
needs.” Chance v. Armstrong , 143 F.3d 698, 70 2 (2d Cir. 1998)

. In fact, according to the complaint, Leggett received x

- rays and eventually a brace for stabilization. Th us, the allegations in the complaint reflect a disagreement

— or perhaps an assertion of negligence

— as to the proper course of treatment for his injury , but neither “ mere disagreement over the proper treatment ” nor negligence establishes an Eighth Amendment violation for alleged inadequate medical care

. Id.
at 703

. Therefore, the district court properly dismissed the claim against Dr. Wigderson.5 We hav e considered Leggett’s remaining arguments and find them to be without merit. 3 Accordingly, we AFFIRM the order of the district court.
FOR THE COURT: Catherine O = Hagan Wolfe, Clerk of Court

3 To the extent Leggett includes new allegations in his appellate brief and attaches several documents that were not presented to the district court, we conclude that there are no extraordinary circumstances that woul d warrant consideration of such allegations and documents for the first time on appeal. See Munn v. Hotchkiss Sch. , 795 F.3d 324, 330 (2d Cir. 2015) ; Int ’ l Bus. Machs. Corp. v. Edelstein , 526 F.2d 37, 45 (2d Cir. 1975) ( per curiam )

.