Opinion
21-CV-1680 (PGG) (KHP)
08-08-2022
GABRIEL FLORES, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.
HONORABLE PAUL G. GARDEPHE, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
KATHARINE H. PARKER United States Magistrate Judge.
Pro se Plaintiff Gabriel Flores commenced this action seeking damages and injunctive relief under 42 U.S.C. § 1983, alleging in his Second Amended Complaint (“SAC”) that the City of New York and 65 individual Defendants violated his constitutional rights while he was a pretrial detainee in the custody of the City of New York Department of Correction (“DOC”) and housed at the Otis Bantum Correctional Center (“OBCC”), the Vernon C. Bain Center (“VCBC”), Manhattan Detention Complex (“MDC”), and the George R. Vierno Center (“GRVC”). In light of Plaintiff's Pro se status, the Court construes the complaint as asserting claims that Defendants: (1) imposed restrictions on him that violated Minimum Standards of the New York City Board of Correction (“BOC”); (2) violated his First Amendment right to free exercise of religion and rights under the Religious Land Use and Institutionalized Persons Act of 2000, pursuant to 42 U.S.C. § 2000cc et seq., (“RLUIPA”) because his Quran and prayer rug were confiscated, he was not provided suhoor meals during Ramadan, and not permitted to meet with an Imam; (3) violated his rights under the Equal Protection Clause of the Fourteenth Amendment insofar as a prison Command Level Order (“CLO”) mandated he be given a Bible rather than allowing for a Quran; (4) violated his right to meaningful access to his counsel and the courts; (5) imposed restrictions on him in retaliation for his refusal to assault another inmate, Alexander Williams Jr. (“Williams”); (6) failed to provide medical care; (7) violated his rights by placing him in enhanced restraints when outside of his cell; (8) used enhanced restraints on him without an opportunity for a hearing in violation of due process; (9) failed to prevent him from being attacked and facilitated the attack; (10) used excessive force; and (11) served him contaminated food. Plaintiff further alleges that Defendant City of New York wrongfully instituted Command Level Order (“CLO 370.20”) and negligently hired, retained, trained, and supervised its employees.
Plaintiff twice amended his complaint. All citations herein refer to the Second Amended Complaint, which is the operative complaint. (ECF No. 24.)
On November 8, 2021, the City of New York moved to dismiss the SAC pursuant to Federal Rules of Civil Procedure 12(b)(6). (ECF No. 35.) On July 8, 2022, individual Defendants who waived service joined the motion to dismiss. (ECF No. 69.) For the reasons set forth below, I recommend that the motion to dismiss the SAC be granted in part and denied in part.
Defendants who joined the motion to dismiss include: Captain Roselio Arias, Shield No. 1861; Captain Mark Ballah, Shield No. 1219; Captain Andrei Blake, Shield No. 89; Captain Aracelis Camacho, Shield No. 1790; Assistant Deputy Warden (“ADW”) Tyrone Carter, Shield No. 94; Correction Officer (“CO”) Giovanni Castro, Shield No. 11930; CO Senayea Chuck, Shield No. 9192; CO Deonne Darbeau, Shield No. 4193; CO Joseph Day, Shield No. 5761; CO Steven Dejesus, Shield No. 497; CO Kewanee Drumwright, Shield No. 8667; Former CO Tyliek Dyches; Former CO Timothy Edmund; Captain Lashauna Farrow, Shield No. 964; CO Manuel Feliz, Shield No. 17854; ADW Ebonee Flemming, Shield No. 1075; Former DOC General Counsel Heidi Grossman; Former CO Robinson Guzman; ADW Shanele Henry, Shield No. 1038; CO Andrew Hickson, Shield No. 5395; CO William Humphries, Shield No. 13844; CO Joatan Humphries, Shield No. 4883; Chief Hazel Jennings, Shield No. 22; Captain Erica Law, Shield No. 85; CO Julius Lawrence, Shield No. 10351; CO Gboh Likoua, Shield No. 19071; Captain Charles Loiseau, Shield No. 1898; ADW Jean Louis, Shield No. 1011; Captain Bernard Mathis, Shield No. 82; Deputy Warden Joanne Matos, Shield No. 595; CO Willie McNeil, Shield No. 12557; Former CO Jennifer Montenegro; Captain Paul Moodie, Shield No. 593; Deputy Warden Tiffany Morales, Shield No. 4; CO Victor Nzeama, Shield No. 6774; CO Cassandra Oxley, Shield No. 1711; Captain Debbie Palmer, Shield No. 267; CO Chance Peay, Shield No. 18910; Captain Jonathan Peters, Shield No. 423; ADW Denise Phillips, Shield No. 14; CO Rick Purnhagen, Shield No. 12594; CO Yvonne Quinones, Shield No. 2315; CO Johanny Ramirez, Shield No. 15685; CO Rekiel Reid, Shield No. 8637; Warden Jean Rene, Shield No. 627; CO Preston Ritter, Shield No. 7994; CO Wilson Rodriguez, Shield No. 9665; Chief of Operations Becky Scott, Shield No. 25; CO Robin Sharma, Shield No. 13535; Deputy Warden Jonelle Shivraj, Shield No. 604; Captain Paul Smith, Shield No. 1222; CO Jaheem Smith, Shield No. 1650; Former CO Jon Smith; Chief Kenneth Stukes, Shield No. 19; Captain Octavio Subervi, Shield No. 1064; CO Shanell Taylor, Shield No. 8644; Captain Fanny Vallejo, Shield No. 924; CO Jovan Vasquez, Shield No. 11590; CO Lakeisha White, Shield No. 492; CO Kevin White, Shield No. 8507; Former CO Loretta Williams; and CO Kevin Young, Shield No. 12268.
The Court notes that the instant motion is unopposed as Plaintiff has not filed an opposition as ordered. See ECF Nos. 45, 72.
FACTUAL ALLEGATIONS
The following facts, taken from the SAC, are presumed true for purposes of this motion and all reasonable inferences are drawn in Plaintiff's favor. Plaintiff brings this case complaining about various conditions of confinement and treatment he received while he was in the DOC's custody. On March 5, 2020, while Plaintiff was housed in 5 West of OBCC, he was attacked outside his cell by unknown persons when CO Chuck and CO Smith allowed him to leave his cell despite ADW Velasquez's order to the contrary, and they stood a few feet away doing nothing to stop the attack. (SAC ¶ OB-3.) According to Plaintiff, Defendants have an illegal “custom policy” of housing detainees based on their “SRG” (security risk group) status instead of their actual classification score, which creates “gang houses or ‘SRG CRIBS.'” (SAC ¶ OB-4.) On July 4, 2020, while Plaintiff was housed in the VCBC protective custody unit 3-CA, Plaintiff was beaten in in the shower by six detainees while CO Feliz and CO Guzman watched and instructed assailants to kick and punch Plaintiff and allowed the assailing detainees to punch Plaintiff in the face while Defendants were holding his arms to take him outside the shower area. (SAC ¶ VC-2.)
Although Defendants seek to dismiss the entire SAC pursuant to Fed.R.Civ.P. 12(b)(6), they did not address in their motion to dismiss Plaintiff's allegations concerning his treatment at the OBCC and VCBC; thus, dismissal of Plaintiff's claims based on the allegations concerning his treatment at OBCC and VCBC, including his allegations that Defendants have an illegal “custom policy” of housing detainees based on their “SRG” status instead of their actual classification score, which creates “gang houses or ‘SRG CRIBS,'” is not warranted.
1. Judicial Lockdown Orders (collectively the “JLO”)
While Plaintiff was in the custody of the DOC's custody pending criminal charges against him, Justice Peter F. Vallone Jr. of the New York Supreme Court, Queens County, issued an order on August 10, 2020, directing that Plaintiff be subject to certain restrictions in prison to ensure, to the extent possible, that he is unable to communicate with or pass any material to any other inmates. (ECF No. 36-2.) On September 14, 2020, Justice Evelyn Braun of the New York Supreme Court, Queens County, issued an order adding a telephone number for Plaintiff's attorney (ECF No. 36-3), and on April 19, 2021, Justice Stephanie Zaro of the New York Supreme Court, Queens County, issued an order indicating a different attorney for Plaintiff (ECF No. 364).
The JLO imposed various restrictions on Plaintiff, directing that: (1) Plaintiff be housed “in a twenty-three (23) lock-down area, on lock-in-feed status, to be separated from all other inmates in the area in such a manner to prevent him, to the extent possible from communicating with or passing material to other inmates;” (2) Plaintiff be barred from any visits except with his attorney; (3) Plaintiff be barred from any phone calls except to his attorney; (4) Plaintiff be housed “in a separate holding pen in which no other inmates are housed” to prevent communication with and passing of material to other inmates; (5) Plaintiff be barred from sending any mail except to his attorney; (6) Plaintiff's letters to his attorney had to have a cover sheet with the name and address of his attorney and be given to the captain supervising Plaintiff to forward them to the jail security officers to in turn forward to Plaintiff's attorney; (7) to the extent that the DOC can arrange a procedure for doing so, Plaintiff be provided with one hour of recreation each day in an area outside of his cell where he is not able to contact other inmates or pose security risk; (8) if requested by Plaintiff, law library, commissary and religious services be brought to his cell; and (9) when any civilian must enter the housing area where Plaintiff is housed, they shall be accompanied by the captain who shall ensure that Plaintiff is not given any materials other than those needed for medical treatment. (ECF Nos. 36-2, 36-3, 36-4.)
2. Allegations Related to MDC
On September 23, 2020, while he was housed at the MDC, Plaintiff chewed on a piece of glass in his meal, which caused bleeding, and he found more pieces of glass of a significant size in his rice. (SAC ¶ MD-1.) Plaintiff notified the floor officer, who ordered all detainees to stop eating, after which Plaintiff was screened by medical staff in the facility triage area. (Id.)
On November 1, 2020, Plaintiff was eating his evening meal when he chewed on and spat out an inedible mass, discovering it was a dead mouse. (SAC ¶ MD-2.) Plaintiff notified the duty officer about this, who in turn notified ADW Aganwa, who took photographs of the dead mouse while still in the tray. (Id.). Plaintiff was then screened by medical staff and the incident was documented. (Id.)
3. Plaintiff's Arrival at GRVC and Command Level Order (“CLO 370.20”)
On November 2, 2020, Plaintiff was moved to the GRVC housing unit 1a. (SAC ¶¶ 2-3.) Pursuant to the JLO, DOC designated Plaintiff as a centrally monitored inmate who should be placed in a centrally monitored case (“CMC”) housing with waist chains and leg irons to be worn when outside the facility and during transport. (SAC Ex. 11.)
The CLO 370.20, effective November 2, 2020, states that its purpose is “to establish policy and procedures for the Care, Custody and Control of the inmates under Court Ordered lockdown status.” (SAC Ex. 11.) It provides that the inmates housed in court-ordered lockdown status shall be in “[t]wenty-three (23) hour lock-in, fed-in status” and shall be allowed to possess in their cell one Bible, three magazines, three books, one bar of soap, one container of shampoo, one toothbrush, one toothpaste, one plastic cup, one towel and a deodorant. (Id.) It also provides, inter alia, that: (1) “[i]nmates in lock-down status shall not be removed from their cells unless a Captain is present;” (2) “[w]henever a Court Ordered Lock-Down Inmate is removed from the housing area, he shall be restrained in leg irons, waist chains and mitts” and “shall be under one-on-one observation of a Correction Officer to assure no communication with any other inmate(s), verbally, in writing or through hand signs;” (3) “these inmates shall be strip-searched, and their property carefully searched on a daily basis;” (4) “[i]nmates will make all requests for Law Library materials in writing,” which “will be forwarded to the Security Office who will obtain copies of the requested materials and place same in the inmate blue storage bin;” (5) “[t]he assigned Captain will collect all letters written by the inmate” and “will turn them over to the Security Office,” and no inmates in court-ordered lockdown status will be permitted to send out any written or other type of communication; (6) “[t]he court ordered inmates are barred from Visits and Telephone calls to anyone other than their attorney of record,” and “[a]ll calls will be placed between the hours of 1330 - 1430 hours and 1630 - 1730 hours;” (7) “[i]nmates will be afforded a ten-minute shower, three (3) times per week,” and “a captain shall be present when the inmate is removed from his cell to the shower and again when he is returned from the shower to his cell;” (8) no incoming mail shall be forwarded to the inmates housed in the court-ordered areas until first forwarded to the GRVC Security Office and “approved by the Commanding Officer of his/her designee;” (9) “[t]he only items inmates housed in Court Ordered areas may purchase from commissary are: 1. Soap 2. Shampoo 3. Deodorant 4. Toothpaste 5. Paper;” (10) “[i]f these inmates request religious services, the Chaplain will be called to visit them;” (11) “[a]ny necessary medical or mental health services are to be provided to these inmates in the housing area,” and they “will not be removed to go to the Clinic unless it is physically impossible to provide them with necessary medical services in the cell/housing area;” and (12) inmates “may be afforded recreation in accordance with the details delineated in the court order or as amended in a separate memo,” and they “will be restrained in waist chains handcuffs and mitts whenever they are out of their cells for recreation.” (SAC Ex. 11.)
4. Minimum Standards
Plaintiff asserts that subjecting him to the CLO 370.20 violates BOC's Minimum Standards that: (1) “prisoners shall not be restricted in their communication with their attorney” (SAC ¶11, Policy §1-08(b)(1)); (2) “prisoners shall be entitled to access courts, attorneys, legal assistants, and legal materials (id., Policy §1-08(a)); (3) “all prisoners shall be permitted to shave daily” (id., Policy §1-03(c)(1)); (4) “recreation periods shall be at least one hour” (id., Policy §1-06(c)); (5) “showers hot and cold shall be made available to prisoners daily” (SAC ¶12, Policy §1-03(b)(1)); (6) “each law library shall contain necessary research material which shall be kept properly updated and supplemented and shall be replaced without undue delay” (SAC ¶28, Policy §1-08(g)); (7) “prisoners shall have reasonable access to typewriters, dedicated word processors, and photocopies” (id., Policy §1-08(g)(2)); and (8) “telecommunications between prisoners and attorneys shall be kept confidential and protected” (SAC ¶32, Policy §1-08(c)(5)).
5. Allegations Related to GRVC
a. Showers, Razor, Law Library, Unsanitary Cell, Recreation, Phone Calls to Attorney and Confidentiality
Plaintiff alleges that when he was transferred to GRVC on November 2, 2020, he was stripped and searched in front of all persons present in the intake area (SAC ¶ 1) and placed in a cell without a television, typewriter, and legal kiosk. (SAC ¶¶ 2-3.) Plaintiff's request for his daily shower, razor, recreation, law library and sick call were denied on November 3 by Deputy Warden Shivraj, CO Purnhagen and ADW Carter. (SAC ¶¶ 4-7.) On November 4, upon arrival to his cell #12 in unit 2A, plaintiff observed from the outside leftover trays and trash on the floor and requested permission to sanitize the cell, but CO Hickson denied the request placing Plaintiff inside the cell where Plaintiff found fecal matter splattered on the walls and sink, and dried toothpaste and mucous in the sink. (SAC ¶ 9.) Plaintiff's requests for shower were denied on November 4 by CO Drumwright and CO Nzeama, who did not allow Plaintiff to clean his cell, forcing Plaintiff “to sit among the sewage waste and toilet water that flooded the cell” on that day, and ADW Henry denied Plaintiff a shower, razor, phone calls, recreation, law library, sick call, and mental health services. (SAC ¶¶ 10-12.)
On November 5, Plaintiff's request for shower, razor, recreation, and a phone call to his attorney were denied by CO Ramirez, Captain Blake, ADW Henry, and CO Edmund. (SAC ¶¶ 1519.) On November 6, CO Ramirez denied Plaintiff's request for shower, razor, law library and recreation. (SAC ¶ 21.) Plaintiff was granted a shower later that day but refused to walk to the showers in protest of the conditions to which he was being subjected. (SAC ¶¶ 22-23.) Also, on that day, CO Hickson provided Plaintiff a phone call to his attorney; however, CO Hickson listened to the conversation, commented on Plaintiff's grievances by stating that Warden Dunbar will retaliate against Plaintiff if she finds out about them. (SAC ¶ 24.) CO Hickson also shared Plaintiff's grievances with CO McNeil. (Id.)
Plaintiff's requests for a shower, razor, recreation, law library and phone calls were denied on November 7 by Captain Vallejo due to the CLO 370.20. (SAC ¶26.) On the same day, law library services were provided to Plaintiff by CO “Humphries #4883,” who informed Plaintiff that the law library legal kiosk was inoperable. (SAC ¶ 28.) Plaintiff alleges that he was informed that no recreation equipment is available to him and that he would have to be in enhanced restraints during the recreation time, which deterred Plaintiff since he could not engage in a meaningful recreation. (SAC ¶ 29.)
Plaintiff asserts that on November 8, CO Young placed a phone call to Plaintiff's attorney and informed Plaintiff that the attorney did not answer (SAC ¶ 30) and, on November 9, “CO White #8507” placed a phone call to Plaintiff's attorney and informed him that the call was directed to voicemail (SAC ¶ 32), which Plaintiff had no way of verifying. According to Plaintiff, on November 9, “White #8507” offered Plaintiff a phone call to his attorney, but Plaintiff requested another time knowing that his attorney is not available, which was denied. (SAC ¶ 34.) On November 10, Captain Loiseau and CO Taylor denied Plaintiff's request for shower. (SAC ¶¶ 35-36.)
On November 11, ADW Carter ordered CO Young not to allow Plaintiff to call his attorney. (SAC ¶ 39.) Plaintiff's shower was also denied by CO Sherma on November 12. (SAC ¶ 40.) Plaintiff was deprived of phone calls on November 15 by “defendants from the security rank and file.” (SAC ¶ 42.) Plaintiff denied CO Dychese's offer to go to recreation on November 16 because there was no recreation equipment, and he would have to be placed in enhanced restraints. (SAC ¶ 43.) Plaintiff's requests to shower were denied on November 27 by CO Montenegro (SAC ¶ 63), on November 28 by CO Darbeau (SAC ¶ 64), and on December 1 by CO Lawrence (SAC ¶ 65).
On December 9, Plaintiff received an affirmation of his grievance about the lack of recreation equipment and the use of enhanced restraints during recreation, but Warden Rene “nullified plaintiff's affirmation” and his right to recreation, including recreation equipment. (SAC ¶ 70.) According to Plaintiff, Warden Rene “is one that allowed a custom policy (CLO 370.20) to exist” due to Warden Rene's “absolute authority over the facility.” (Id.) On December 17, Chief Becky Scott (“Chief Scott”) denied Plaintiff's grievance concerning recreation equipment. (SAC ¶ 71.)
On January 10 and 11, 2021, Captain Peters denied phone calls to Plaintiff. (SAC ¶¶ 7778.) On January 11, Plaintiff refused to return to his cell because he was not afforded phone calls for two days, and he “climbed atop a ledge that was twenty feet above ground level and refused to come down until someone had answers as to why Plaintiff had not used the phone in two days.” (SAC ¶ 82.) Captain Arias ordered that Plaintiff be pulled down, and “CO Smith #1650” jumped and grabbed Plaintiff, causing him to fall to the ground and sustain “a deep, vertical scrape down plaintiffs back.” (SAC ¶ 83.)
On March 1, 2021, Plaintiff received a disposition on his grievance concerning recreation, notifying him that the adequate recreation equipment was installed in his recreation area. (SAC ¶ 97.) Plaintiff did not receive recreation services on May 16, 19, 20, 22, 29, and 30, June 1 and 2, 2021. (SAC ¶¶ 109-16.)
b. Enhanced Restraints
On November 3, ADW Henry recited the content of the CLO 370.20 to Plaintiff (SAC ¶ 5), and Captain Mathis informed Plaintiff, when he moved him to unit 2A on November 4, about the CLO 370.20 requirements, including enhanced restraints in which Plaintiff was placed by CO Hickson, CO Reid, “White # 8507” and CO Ritter under Captain Mathis's supervision. (SAC ¶ 8.)
According to Plaintiff, on November 10, he asked Captain Ballah about the use of enhanced restraints upon arrival at GRVC without a hearing, and Captain Ballah explained that he reviewed Plaintiff's information which did not indicate enhanced restraints. (SAC ¶ 37.) Plaintiff alleges that Warden Dunbar implemented the CLO 370.20 “as a retaliatory tactic against another detainee who has sued companions and colleagues of” Warden Dunbar. (SAC ¶ 37.)
c. Plaintiff's Mail
On November 10, CO Taylor refused to take Plaintiff's mail for his attorney, referencing the CLO 370.20 restrictions. (SAC ¶ 36.) On November 11, CO Young denied Plaintiff's request to send mail to his attorney and threatened to spray Plaintiff with a chemical if he said another word. (SAC ¶¶ 38-39.) On November 16, CO White and CO McNeil opened and read Plaintiff's legal mail from his attorney and discussed Plaintiff's criminal case, CO McNeil asked CO White how much time he thinks Plaintiff would get. (SAC ¶ 44.) On November 17, Plaintiff gave his legal mail addressed to his attorney to ADW Carter, ADW Carter handed it to CO McNeil, who opened, read it, threw it away and started to speak loudly about details of the Plaintiff's criminal case. (SAC ¶ 48.)
On November 16, CO McNeil refused to deliver a package with clothing that the facility received via UPS under tracking number 950-516-835-8639, which Plaintiff's attorney confirmed. (SAC ¶¶ 44-45.) CO McNeil told Plaintiff that Plaintiff would never receive the package because he took it. (SAC ¶ 45.) After several attempts to obtain his package, Plaintiff became sick and medical emergency was called to take him to the facility clinic. (SAC ¶ 46.) Upon return to his cell in enhanced restraints, Captain Palmer-Campbell “squeezed plaintiff's cuffs around his wrists to the last click” and ordered that Plaintiff stay in the cell like that all night, causing Plaintiff's hands to become numb after several hours. (Id.) The following day around 6:30 a.m., ADW Carter refused to take off the restraints when Plaintiff requested, leaving Plaintiff restrained until 11:30 a.m., when ADW Carter returned and ordered “White #8507” to remove the restraints. (SAC ¶ 47.)
d. Cell Extraction and Excessive Force
On November 23, 2020, CO Quinones denied Plaintiff a shower. (SAC ¶ 49.) In anger, Plaintiff threw things out of his cell and flooded his cell. (Id.) On November 24, Warden Dunbar came to Plaintiff's cell with “White# 8507” and CO Hickson, told Plaintiff to pack because he was moving to another cell, and instructed “White #8507” to find a copy of the CLO 370.20 in Plaintiff's belongings and tear it apart, which prompted Plaintiff to block access to his property. (SAC ¶ 51.) Warden Dunbar instructed CO Day not to feed Plaintiff or provide any service until Plaintiff complied with her order to move to another cell. (SAC ¶ 52.) Thereafter, Captain Blake, “Humphries #13844,” CO Castro, CO Likoua, “Smith #1753,” “Vasquez # 11590,” and “Williams #3906” came to Plaintiff's cell whereby Captain Blake demanded that Plaintiff leave his cell willingly or be removed by force. (SAC ¶ 53.) When Plaintiff “placed his hands out of the slot to show that he was of no threat,” Captain Blake ordered that the cell door powered by an electric automatic hydraulic gearing system be opened while Plaintiff's hands were still in the slot, causing Plaintiff's “arms to be pinned bilaterally by both the threshold of the cell door frame and the feeding/cuffing door port with the force of the auto-hydraulic gear pushing backward onto the door track, trying to achieve full opening.” (SAC ¶ 57.) During that time, “Humphries #13844,” CO Castro and CO Likoua were yanking and bending Plaintiff's arms in an attempt to have Plaintiff submit and inflicting pain. (Id.) Captain Blake then deployed a chemical spray into Plaintiff's face, blinding him and causing respiratory obstructions, after which he was taken to the clinic in enhanced restraints. (SAC ¶ 53.) Plaintiff sustained bruises, lacerations, and subsequent scaring to his left forearm. (SAC ¶ 57.)
e. Smoke Inhalation
On November 24, 2020, a fire broke out in Plaintiff's unit, and he could not breath and started vomiting due to the smoke inhalation. (SAC ¶ 62.) CO Lawrence and CO Oxley denied Plaintiff's request to call medical emergency where CO Oxley told CO Lawrence “Fuck that nigga. He can breathe. Pay him no mind.” (Id.) On January 11, 2021, Plaintiff set fire in his cell because he did not receive telephone calls for two days. (SAC ¶ 80.) Plaintiff's cell became overcome with smoke and soot and Plaintiff could no longer breath, but ADW Louis instructed Captain Loiseau not to open Plaintiff's cell door. (Id.) Captain Loiseau “sat outside of plaintiff's cell and watched him choke and gasp for air before finally allowing Plaintiff out of cell,” and taking him to the clinic for smoke inhalation. (Id.) When Plaintiff was returned to his cell, it was covered in smoke and soot, and he was not given an opportunity to sanitize it or take a shower after the fire. (SAC ¶ 81.)
f. January 13, 2021 Search
On January 13, 2021, CO Reid, CO Ritter and ADW Carter conducted a property and strip search of Plaintiff at his cell. (SAC ¶ 86.) When Plaintiff was directed to take off his clothes, he initially complied. (Id.) CO Ritter placed Plaintiff's clothing on the handrail of the top tier prompting Plaintiff's refusal to comply further with the search, and Captain Palmer-Campbell informed Plaintiff that he was not getting his clothes back, so he may go back to his cell, and ordered his team to use force against Plaintiff, who was taken to the ground. (Id.) CO Reid removed Plaintiff's sneakers and another officer “put their knees atop plaintiff's neck, obstructing plaintiff's breathing.” (Id.) ADW Carter and CO McNeil entered Plaintiff's cell while he was restrained and when they exited, CO McNeil was holding Plaintiff's photographs in his hand. (Id.) Plaintiff was then escorted to the clinic, after which he was placed in enhanced restraints by ADW Phillips, despite Plaintiff's protest. (Id.)
Upon return to his cell, plaintiff observed his property thrown about the cell, his photographs “ripped up” and thrown in the toilet, and his clothing missing. (SAC ¶ 88.) Plaintiff was moved to cell #13. (Id.) Plaintiff's request to take a shower and access a typewriter was denied by CO Lawrence, who informed Plaintiff that a new security memorandum was issued by Deputy Warden Shivraj ordering facility officers not to allow detainees to shower during the period 3-11 p.m. or face disciplinary action if they do. (SAC ¶¶ 89-90.) Plaintiff noticed that the toilet and sink in his new cell were inoperable, which he reported to Captain Peters and asked to be moved to an operable cell, but Captain Peters denied the request. (SAC ¶ 91.) This caused Plaintiff to “set a fire to get out of the inoperable cell he was placed in.” (Id.) Captain Peters reported the fire and took Plaintiff to the clinic, after which he forced Plaintiff to return to the inoperable cell. (SAC ¶ 92.) Plaintiff was moved to cell #10 on January 14 by Captain Parris, after which he was visited by Bennet Stein (“Stein”), Director of Policy and Communication, who discussed the Plaintiff' various grievances with him. (SAC ¶ 93.)
g. Stolen Property
On November 24, 2020, Plaintiff was forcibly removed from his cell and had some of his property confiscated. (SAC ¶ 58.) Plaintiff requested and received a receipt for his confiscated property from CO Young. (Id.) Plaintiff asked CO Young why his Quran, prayer rug, and family photographs that were removed were not documented, to which CO Young stated that Plaintiff can only have one Bible and “this is America! We don't like Muslims, Mexicans, or criminals.” (Id.) On November 25, Plaintiff was informed that none of the items listed on Plaintiff's receipt were found in his property bag in the intake area. (SAC ¶ 59.) On November 26, 2020, Plaintiff requested Defendant Oxley to call the facility Imam to request a new Quran. (SAC ¶ 61.) The request was denied and Defendant Oxley stated chaplains may not give inmates any items pursuant to the CLO and that a Quran was impermissible. (Id.)
On March 4, 2021, Plaintiff was informed by Social Services and the property intake officer that all his bags were searched in the property room and no sweatpants belonging to Plaintiff were found. (SAC ¶ 99.) On March 23, “OCGS informed Plaintiff that the only bag they located was listed under property receipt #176835119 from 11/21/19.” (SAC ¶ 100.) However, Plaintiff was given a property receipt # 136741921 from the January 13, 2021 confiscation of a shirt, sweatpants and a pair of sneakers; thus, that property was “stolen” as ADW Carter and CO Ritter promised. (Id.)
h. Retaliation
On November 4, 2020, Warden Dunbar entered Plaintiff's cell with ADW Henry, grabbed Plaintiff by his shirt and stated that if Plaintiff continued to grieve about not receiving a shower and pursuing litigation, he would never shower, and directed CO Nzeama to give Plaintiff reduced portions of food, which CO Nzeama did when Plaintiff's dinner arrived that day. (SAC ¶¶ 13-14.) On November 13, Warden Dunbar directed CO Ritter and CO Hickson not to allow Plaintiff any phone calls or outgoing mail, including to his attorney, because he had been “lodging complaints and ratting on us.” (SAC ¶ 41.)
On December 2, CO McNeil denied Plaintiff's request to call his attorney and informed him that the reason for denial was Plaintiff's filing of complaints through his attorney. (SAC ¶ 66.) On December 3, ADW Carter informed Plaintiff that a television would be installed in all detainees' cells except the Plaintiff's because he continued to file complaints about a television. (SAC ¶ 67.) The television set was placed on the wall opposite Plaintiff's cell, so he had to stand up to watch television through a four-inch-wide glass on the cell door from thirty feet away. (Id.)
On December 23, ADW Carter and CO Ritter propositioned Plaintiff to attack another inmate, Alexander Williams, in exchange for their ensuring that he would receive all the required services. (SAC ¶ 72.) However, when Plaintiff refused and requested to use the phone, CO Ritter denied the request based on Plaintiff's denial. (Id.) On December 24, CO Young denied phone calls to Plaintiff. (SAC ¶ 74.)
On January 8, 2021, Captain Law told Plaintiff that she received his recreation grievance noting that her team does not afford recreational services. Captain Law stated that she would enforce the CLO 370.20 restrictions and “will personally see to it that Plaintiff can't do anything outside, as far as engage in meaningful recreation because plaintiff will be in Enhanced Restraint anyway,” deterring Plaintiff from engaging in recreation. (SAC ¶ 76.)
During an institutional search on January 20, 2021, Plaintiff was speaking with a grievance officer when Captain Law demanded that Plaintiff returns to his cell. (SAC ¶ 94.) When Plaintiff explained that he was trying to submit a grievance, Captain Law responded that Plaintiff is “doing too much with that grievance system. I'm getting E-Mails about putting a pull-up station in the rec area. I don't care about none of that,” and “[k]eep with that grievance shit: we gon' see about you.” (Id.) On January 29, Plaintiff received a letter from Stein concerning Plaintiff's mental health and medical services and recreation. (SAC ¶ 96.) In that letter, Stein acknowledged that it “appears that this previous policy CLO 104/19] is still in place.” (Id.)
On March 4, 2021, Plaintiff filed a grievance against ADW Carter because every morning for two weeks since the January 13 search, when touring the unit at 6 a.m., ADW Carter would bang on Plaintiff's door to wake him up and taunt him about how the security team had beaten him up, taken his clothes, especially his sweatpants on January 13, and how he ripped Plaintiff's photographs of his son and his son's mother, threatening that Plaintiff could get murdered because ADW Carter runs the jail. (SAC ¶ 98.) ADW Carter told Plaintiff that he ordered CO Ritter “to stash his sweatpants in defendant ADW Carter's # 94 personal office.” (Id.)
i. Privacy of Medical Information
On December 3, 2020, Plaintiff, who has a history of mental illness and self-harm, became dizzy and was informed that he could only have a mental health staff counsel him through his cell door, without any privacy. (SAC ¶ 68.) Plaintiff was visited by a mental health counselor, Mr. Roman, on December 9, who spoke loudly about Plaintiff's mental health diagnosis for all to hear. (SAC ¶ 69.)
j. Religious Services
On November 26, 2020, CO Oxley denied Plaintiff shower and refused to call for the facility Imam. (SAC ¶ 60.) On January 6, 2021, Plaintiff was approached by a Rabbi who asked if he would like to speak about religion with a Chaplain instead of an Imam, but Plaintiff responded that there was no reason he would speak with a Chaplain because he is a Muslim. (SAC ¶ 75.) Other inmates were receiving religious services while Plaintiff's request for Imam was denied. (Id.)
On April 12, 2021, when the holy month of Ramadan commenced, Plaintiff began to fast in observance of the celebration, but he never received “a suhur bag to break fast . . . with Halal food” during the entire month of Ramadan that lasted through May 12, despite requesting it and confirming that Plaintiff was enlisted as Muslim with the DOC before the Ramadan started. (SAC ¶¶ 101-07.)
LEGAL STANDARD
1. Motion to Dismiss Under Rule 12(b)(6)
When considering a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true and draw all inferences in the Plaintiff's favor. Littlejohn v. City of New York, 795 F.3d 297, 306-07 (2d Cir. 2015). To survive a motion to dismiss, the complaint must contain “sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While detailed factual allegations are not required, the complaint must contain more than mere “‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action'” or “'naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (quoting Twombly, 550 U.S. at 555, 557). As the Supreme Court explained in Iqbal, the “plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate only when “it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief.” Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000).
“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. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)). At the motion to dismiss stage, the Court may consider any document “attached to [the complaint] as an exhibit or any statements or documents incorporated in it by reference,” as well as “documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit[.]” Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000) (citations omitted).
2. Claims Under 42 U.S.C. § 1983
Section 1983 provides, in relevant part, that: “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured[.]” 42 U.S.C. § 1983. 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, 144 n.3 (1979); see also Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). To state a claim under § 1983, “a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (citation omitted).
Failing to allege that a defendant was personally involved in, or responsible for, the conduct complained of renders a complaint “fatally defective on its face.” Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987) (quoting Black v. United States, 534 F.2d 524, 527-28 (2d Cir. 1976)). Equally, “group pleading,” which “fail[s] to differentiate as to which defendant was involved in the alleged unlawful conduct,” is insufficient to state a claim under Section 1983. Myers v. Moore, 326 F.R.D. 50, 60 (S.D.N.Y. 2018) (quoting Leneau v. Ponte, 2018 WL 566456, at *15 (S.D.N.Y. Jan. 25, 2018)). To satisfy Rule 12(b)(6), a plaintiff must make “specific factual allegations” against each defendant. Thomas v. Venditto, 925 F.Supp.2d 352, 363 (E.D.N.Y. 2013) (citation omitted).
To establish a Monell claim to hold a municipality “liable under [Section] 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). The plaintiff may show the existence of such a policy or custom by identifying any of the following: (i) an express policy or custom; (ii) an authorization of a policymaker of the unconstitutional practice; (iii) failure of the municipality to train its employees, which exhibits a “deliberate indifference” to the rights of its citizens; or (iv) a practice of the municipal employees that is “so permanent and well settled as to imply the constructive acquiescence of senior policymaking officials.” Corley v. Vance, 365 F.Supp.3d 407, 438 (S.D.N.Y. 2019) (quoting Biswas v. City of New York, 973 F.Supp.2d 504, 536 (S.D.N.Y. 2013)), aff'd sub nom. Corley v. Wittner, 811 Fed.Appx. 62 (2d Cir. 2020); see also Outlaw v. City of Hartford, 884 F.3d 351, 372-73 (2d Cir. 2018) (discussing what constitutes official municipal policy and deliberate indifference).
3. Qualified Immunity
“Qualified immunity shields government officials from liability for civil damages as a result of their performance of discretionary functions and serves to protect government officials from the burdens of costly, but insubstantial, lawsuits.” Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995) (citation omitted). “Government actors performing discretionary functions are ‘shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); City of Tahlequah, Oklahoma v. Bond, 142 S.Ct. 9, 11 (2021). “[T]he qualified immunity defense protects a government actor if it was ‘objectively reasonable' for him to believe that his actions were lawful at the time of the challenged act.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640, 641 (1987). “The objective reasonableness test is met-and the defendant is entitled to immunity-if ‘officers of reasonable competence could disagree' on the legality of the defendant's actions.” Id. (quoting Malley v. Briggs, 475 U.S. 335, 340-41 (1986)). The doctrine protects “all but the plainly incompetent or those who knowingly violate the law.” City of Tahlequah, 142 S.Ct. at 11 (citing District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018)).
It is well settled in this Circuit that a defendant's ability to rely on qualified immunity from liability is a question of law for the court to decide only when the facts are not in dispute. Lennon, 66 F.3d at 421. In the context of a motion to dismiss, it must be clear from the face of the pleading that conduct of the officer was objectively reasonable as a matter of law. Cf. Iqbal, 556 U.S. at 671-672 (recognizing that denial of claim of qualified immunity on Rule 12(b)(6) motion can fall “within the narrow class of appealable orders despite ‘the absence of a final judgment'”); Ford v. Miller, 2019 WL 6831640, at *14 (S.D.N.Y. Aug. 23, 2019), report and recommendation adopted, 2019 WL 4673445 (S.D.N.Y. Sept. 25, 2019) (on motion to dismiss, finding officers entitled to qualified immunity because plaintiff failed to state a claim for violation of his constitutional rights; law was clear that plaintiff's complaints did not constitute a protectable liberty interest).
DISCUSSION
1. RULE 8(A)(2) OF THE FEDERAL RULES OF CIVIL PROCEDURE
Defendants argue that Plaintiff's SAC, consisting of 132 paragraphs and 48 exhibits and containing “plaintiff's personal opinions and recitation of alleged arguments plaintiff had with Correction Officers,” should be dismissed for failure to comply with Federal Rule of Civil Procedure 8(a)(2), which requires that a pleading “contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
Dismissal of a complaint for failure to comply with Rule 8(a)(2) “is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (citations omitted). Rule 8(a)(2) does not prohibit allegations of Plaintiff's personal opinions and arguments Plaintiff had with Defendants, and Defendants do not assert that the SAC is confusing, ambiguous, vague, or unintelligible. Thus, dismissal of the SAC pursuant to Fed.R.Civ.P. 8(a)(2) is not warranted.
2. LACK OF PERSONAL INVOLVEMENT
“It is well settled in this Circuit that ‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991)).
[T]here is no special rule for supervisory liability. Instead, a plaintiff must plead and prove that each Government-official defendant, through the official's own individual actions, has violated the Constitution. The factors necessary to establish a [§ 1983] violation will vary with the constitutional provision at issue” because the elements of different constitutional violations vary. The violation
must be established against the supervisory official directly.Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (internal citations and quotation marks omitted).
Defendants argue that Plaintiff failed to allege any specific facts indicating personal involvement in the alleged violations of his rights by the following Defendants: Kenneth Stukes (“Stukes”), Heidi Grossman (“Grossman”), Hazel Jennings (“Jennings”), Chief Scott, Tiffany Morales (“Morales”) and Joanne Matos (“Matos”).
Plaintiff asserts only that Ballah “alluded to the possibility” that Stukes “had a hand in Plaintiff's movement” (SAC ¶37), and CO McNeil told Plaintiff that Warden Rene “is going to back all plays that Chief Stukes, Chief Scott and Dunbar” (SAC ¶66). Apart from mentioning Stukes in paragraphs 37 and 66, the SAC is devoid of any allegations against Stukes based on his conduct. This is insufficient to state a claim against Stukes.
Plaintiff alleges that “the BOC had already cc'd defendant Hazel Jennings, defendant Heidi Grossman, and OCGS that [the CLO 370.20] is in direct conflict with Minimum Standards or Policy and/or Directive” (SAC ¶24), and Jennings and Grossman were aware of Defendants' violations of the Minimum Standards (SAC ¶28). Moreover, Jennings approved dissemination of an erroneous pedigree sheet being aware that Plaintiff was not classified as an “ERS” (enhanced restraint status). (SAC ¶37.) Apart from these paragraphs, the SAC is devoid of any allegations against Grossman and Jennings based on their conduct. Plaintiff's conclusory allegations about what Grossman and Jennings were aware of, are insufficient to satisfy the personal involvement requirement. See Ramsey v. Goord, 2005 WL 2000144, at *5 (W.D.N.Y. Aug. 13, 2005).
Plaintiff asserts that Warden Dunbar's order “that the security unit provide the phone calls exclusively” was “in consensus with” Morales and Matos (SAC ¶32) who approved dissemination of an erroneous pedigree sheet while being aware that Plaintiff was not classified as an “ERS” (SAC ¶37). Plaintiff's conclusory allegations in these two paragraphs unsupported by factual content are insufficient to state personal involvement by Morales and Matos.
Although Plaintiff alleges that Chief Scott also approved dissemination of an erroneous pedigree sheet despite being aware that Plaintiff was not classified as an “ERS” (SAC ¶37) is conclusory, Plaintiff also alleges that, on December 17, 2020, Chief Scott denied his grievance related to recreation, stating that “[t]here is no requirement for equipment,” citing to the SAC's Exhibit 18 (SAC ¶71). Because Plaintiff made specific factual allegations against Chief Scott, supported by Exhibit 18, he stated sufficiently Chief Scott's personal involvement in his claim of constitutional violation based on denial of recreation.
Accordingly, dismissing Plaintiff's claims against Stukes, Grossman, Jennings, Morales and Matos based on lack of personal involvement is warranted. However, it is not warranted Chief Scott.
Although Plaintiff sufficiently alleges the personal involvement of Chief Scott, as discussed below, I nonetheless recommend that she be dismissed as Plaintiff's recreational equipment claim does not rise to a constitutional violation.
3. MINIMUM STANDARDS VIOLATIONS
To start, when evaluating each of Plaintiff's claims concerning the CLO, they must be analyzed bearing in mind that Plaintiff was subject to a court-issued Lockdown Order which precipitated the CLO. Thus, the penological purpose for the restrictions in the CLO is presumptively valid, at least insofar as the CLO's requirements are consistent with the state court's Lockdown Order. See Avery v. Turn Key Health Clinics, LLC, 2020 WL 714176, at *9 (W.D. Ark. Feb. 12, 2020), aff'd, 839 Fed.Appx. 26 (8th Cir. 2021) (noting that “Security of the criminal justice process, enforcement of a court's orders, protection of victims and witnesses are legitimate penological interests”); see also Hubbard v. Johnson, 2019 WL 5579507, at *4 (N.D. Cal. Oct. 29, 2019); Pickford v. Lake Cnty. Cmty. Correction, 2015 WL 3822262, at *2 (N.D. Ind. June 19, 2015).
Defendants argue that to, the extent Plaintiff's claims are based on a violation of the BOC's Minimum Standards, no claim under Section 1983 can lie insofar as the Minimum Standards do not set the Constitutional standard.
Although the Second Circuit does not appear to have ruled on the issue, District Courts in this Circuit consistently have found that BOC's Minimum Standards do not, standing alone, establish a violation of a federally guaranteed right for purposes of Section 1983. Knight v. Mun. Corp., 2016 WL 4030632, at *6 n.7 (S.D.N.Y. July 26, 2016); Winters v. City of New York, 2020 WL 4194633, at *5 (S.D.N.Y. July 21, 2020); Walker v. Shaw, 2010 WL 2541711, at *6 (S.D.N.Y. June 23, 2010) (collecting cases). The rationale for these decisions is that the Minimum Standards, set by state law, are tantamount to procedural guidelines for prisons that the state chooses to require and not necessarily those federal courts might also impose under the Fourteenth Amendment. Korkala v. N.Y.C. Dep't of Corr., 84-cv-5740, 1986 WL 9798, at *4-5 (S.D.N.Y. Sept. 4, 1986). Thus, to the extent they require more than what is required by the Constitution, they do not form the basis of a claim under Section 1983. To the extent that the Minimum Standards align with Constitutional standards, those are addressed separately below when addressing the Constitutional claims. Accordingly, as violation of the Minimum Standards in and of themselves do not establish the basis for the deprivation of Constitutional right, I recommend that Plaintiff's claims for violation of the Minimum Standards be dismissed.
4. CONDITIONS OF CONFINEMENT
a. Qualified Immunity
Defendants argue that none of the conditions of Plaintiff's confinement violates clearly established law and “where, as here, correction officers act at the direction of a facially valid directive they are entitled to qualified immunity.” See Varrone v. Bilotti, 123 F.3d 75, 81-82 (2d. Cir. 1997). However, Defendants' reliance on Varrone is misplaced. In Varrone, which involved a prison visitor's Fourth Amendment right to be free from unreasonable searches and seizures, the court found:
Since the four subordinate officers were merely carrying out Malone's [(the Inspector General for the New York State Department of Correctional Services)] instruction and that of their immediate superior when they ordered the strip search, they were entitled to the same immunity Malone had. There is no claim that the order was facially invalid or obviously illegal; prison strip searches are not uncommon. To require the four officers independently to investigate the basis for the apparently valid order they received, as a condition to having the same qualified immunity that the source of the order (Malone) had, would create serious problems in the administration of a prison and be detrimental to the maintenance of proper order and discipline there.Id.
Unlike in Varrone, which did not involve a claim that the order in that case was facially invalid, Plaintiff challenges the validity of the CLO 370.20 and its restrictions. Defendants do not argue that Plaintiff does not have constitutional rights to basic life necessities, including hygiene, exercise, communication with his attorney and outgoing mail; rather, they concede that Plaintiff has those rights, but argue that sporadic deprivations of showers and razors (Def.'s Br. at 7-8), phone calls to his attorney (Id. at 8-9), and recreation (Id. at 9-10), as well as placing Plaintiff in enhanced restraints (Id. at 12), are not sufficient to state a claim for unconstitutional conditions of confinement. Defendants' conclusory assertion in their memorandum of law that “the CLO” is facially valid is not sufficient as a matter of law at this stage to confer qualified immunity protection in the circumstances of this case regarding Plaintiff's claim of unconstitutional conditions of his confinement. Thus, dismissing the SAC based on the argument that Defendants are entitled to qualified immunity because they acted at the direction of a facially valid directive is not warranted.
b. Allegations Related to MDC
While he was housed at the MDC, Plaintiff chewed on a piece of glass in his meal, which caused bleeding and he also chewed on a dead mouse. (SAC ¶¶ MD-1-2.) Defendants argue that Plaintiff's claims should be dismissed because his allegations do not show any personal involvement by any officer placing the glass and mouse in his food, or that any officer had knowledge of the glass and mouse in the food prior to plaintiff making it known to them, and they are entitled to qualified immunity. (Def.'s Br. at 30.)
Here, Plaintiff does not identify any individual Defendant responsible for preparing or serving food or supervising food preparation and service, and he does not allege any widespread and continuous contamination issues with food or that individual Defendants were aware of these issues and allowed them to continue or were grossly negligent in supervising subordinates and overseeing food preparation and service and failed to cure any food contamination issues. Since “personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983,” Wright, 21 F.3d at 501, and the SAC does not allege that any Defendant participated in or knew of contamination of the Plaintiff's food, the dismissal of claims based on the allegations of contaminated food while Plaintiff was housed at MDC is warranted. See Gray v. Metro. Det. Ctr., 2011 WL 2847430, at *10 (E.D.N.Y. July 15, 2011) (“Plaintiff does not allege that either of the Individual Defendants personally put glass in his food or had any reason to know that his food was contaminated when it was served.”); Lopes v. Westchester County, 2020 WL 7029002, at *4 (S.D.N.Y. Nov. 30, 2020) (“There is no allegation that Martinez, Delgrosso, or Spano participated directly in the preparation of food at all, established a policy or custom that allowed contaminated food to be provided to inmates, failed to follow a policy or custom on food preparation or were otherwise grossly negligent in allowing others to prepare food without following proper procedures, failed to remedy food preparation problems after being notified of the issues, or were deliberately indifferent to Plaintiff's condition after being informed of his illness and its cause.”); but see Hall v. Westchester County, 2021 WL 795165, at 4-5 (S.D.N.Y. Mar. 1, 2021) (Plaintiff adequately pleaded personal involvement and serious conditions against supervisory individual defendants where they were responsible for food preparation and supervision and participated in meetings to discuss complaints and lawsuits base on the food issues, and plaintiff was “regularly being served undercooked and bloody meat, moldy bread, and juice containers with mold around them, all of which are obvious health hazards,” he found “foreign objects, including a metal clip and flies, as well as phlegm in his food on several occasions,” his “food was prepared in unsanitary conditions” and “ old food was served.”). Thus, although the instances of food contamination are indeed terrible and something that should not have happened, I recommend granting the motion to dismiss with respect to Plaintiff's claims related to food contamination at MDC because they do not state a claim as pleaded under existing case law.
c. Showers, Razor, Recreation, Recreation, Television, Commissary, and Unsanitary Cell
Defendants argue that: (a) there is no constitutional right to daily showers (Def.' Br. at 7-8), access to television or commissary (Id. at 10); (b) denial of a razor on certain days is a de minimis deprivation insufficient to state a claim (Id. at 7); (c) Plaintiff does not allege he had contact with the sewage or that Defendants intentionally exposed to him to sewage (Id. at 8); and (d) sporadic deprivation of recreation does not amount to a constitutional violation, and there is no constitutional right to exercise equipment (Id. at 9-10).
The Constitution requires that prison officials “provide humane conditions of confinement” and “ensure that inmates receive adequate food, clothing, shelter, and medical care.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). “The Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones[.]” Id. (internal quotation marks and citation omitted). When a plaintiff is a pretrial detainee, as here, claims related to conditions of confinement are analyzed under the Due Process Clause of the Fourteenth Amendment. When evaluating such a claim, courts look to “contemporary standards of decency.” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017).
To state a claim for deliberate indifference to conditions of confinement, a plaintiff must show that the deprivation was both objectively serious and that the defendant official acted with sufficient mens rea, (the “subjective” prong of the test). Under the subjective prong, the plaintiff must show that the defendant was deliberately indifferent to any objectively serious condition of confinement. Id. at 32. Under the Fourteenth Amendment, this can be shown with evidence that the “defendant official acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety.” Id. at 35.
Numerous courts have held that unpleasant or unsanitary conditions only rise to the level of a Constitutional violation if they amount to an objectively and sufficiently serious denial of the minimal civilized measure of life's necessities. Id. at 30-32. Furthermore, a plaintiff must proffer facts to show “an official's deliberate indifference to those conditions, or that that those conditions are punitive.” Id. at 34 n.12.
“[C]onditions of confinement may be aggregated to rise to the level of a constitutional violation, but ‘only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise.'” Id. at 30. To properly assess whether conditions are sufficiently serious, the plaintiff must include information about the duration and severity of them, otherwise they may be dismissed. See, e.g., Figueroa v. County of Rockland, 2018 WL 3315735, at *7 (S.D.N.Y. July 5, 2018) (dismissing conditions-of-confinement claim alleging lack of ventilation, insect infestation, and feces/bodily fluids on the walls because plaintiff did not provide details as to duration of conditions); Jackson v. Sullivan County, 2018 WL 1582506, at *4 (S.D.N.Y. Mar. 27, 2018) (dismissing conditions-of-confinement claim in absence of allegations regarding severity and duration).
Here, Plaintiff alleges that Defendants denied, on various dates, his requests for a shower (November 3, 4, 5, 7, 10 and 12), razor (November 3, 4, 5, 6 and 7) and recreation (November 3, 4, 5 and 6, 2020 and May 16, 18, 19, 20, 22, 29, 30, June 1 and 2, 2021). These allegations do not rise to the level of a constitutional violation, either alone or in the aggregate, as they suggest episodic deprivations. Although Plaintiff asserts that showers, razor, and recreation were denied on various dates, he concedes that those services were otherwise afforded. For example, on November 6, 2020, Plaintiff was denied shower by CO Ramirez, but Plaintiff was offered a shower later that day. (SAC ¶¶ 21, 24.)
Plaintiff also alleges that he was placed in enhanced restraints during recreation. That claim is addressed below.
Moreover, Plaintiff fails to assert how denials of a shower or razor on occasion posed an objective risk of serious harm to him. See Trammell v. Keane, 338 F.3d 155, 165 (2d Cir. 2003) (“Deprivation of other [than toilet paper] toiletries for approximately two weeks-while perhaps uncomfortable-does not pose such an obvious risk to an inmate's health or safety to suggest that the defendants were ‘aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed], and [that they also drew] the inference.'”) (citation omitted); Thorpe v. Vill. of Greenwich, 2014 WL 788816, at *10 (N.D.N.Y. Feb. 25, 2014) (“Courts are reluctant to consider even a temporary deprivation of showers a constitutional violation.”); McCoy v. Goord, 255 F.Supp.2d 233, 260 (S.D.N.Y. 2003) (“[A] two-week suspension of shower privileges does not suffice as a denial of ‘basic hygienic needs,' nor does failure to provide razors for shaving rise to the level of constitutional concern.”) (citation omitted).
Plaintiff alleges that he was denied television in his cell and his access to the commissary was restricted. However, Plaintiff has no constitutional right to television in his cell, Rosales v. LaValley, 2014 WL 991865, at *11 (N.D.N.Y. Mar. 13, 2014) (“It is well established that prison inmates do not have a constitutional right to watch television because the amenity is not considered a necessity for inmates.”), or access to the commissary, Wingate v. City of New York, 2014 WL 3747662, at *1 (E.D.N.Y. July 25, 2014) (“Prisoners, including pretrial detainees, do not have . . . a constitutional right to the use of a prison commissary.”). Furthermore, Plaintiff failed to assert any injury caused by denials of television in his cell and access to the commissary.
Plaintiff alleges that his request to clean cell #12 containing leftover trays, trash on the floor, fecal matter on the walls and sink, and dried toothpaste and mucus in the sink was denied by Defendants. The Second Circuit has held that exposure to human waste may satisfy the objective prong, depending on “both the duration and the severity of the exposure.” Willey v. Kirkpatrick, 801 F.3d 51, 68 (2d Cir. 2015). Thus, exposure to human waste, even for periods of short duration, may constitute an objectively serious deprivation. Darnell, 849 F.3d at 30; see also Liverpool v. Davis, 442 F.Supp.3d 714, 729 (S.D.N.Y. 2020). Plaintiff alleges a single episode of exposure to unsanitary conditions, including fecal matter on the wall and in the sink and water from the flooded toilet, on November 4, 2020, lasting less than 24 hours and he does not allege that exposure was of any particular or significant severity. Although Plaintiff asserts that he was forced “to sit among the sewage and toilet water [that] flooded [his] cell,” he does not allege that he suffered sickness or ill effects resulting from the exposure that was not of long duration or severity. Thus, Plaintiff's single, short exposure to unsanitary conditions, on November 4, 2020, while no doubt extremely unpleasant, does not qualify as objectively sufficiently serious to state a claim for constitutional violation under existing case law. See Grant-Cobham v. Martinez, 2020 WL 2097807, at * 3 (E.D.N.Y. May 1, 2020) (dismissing claim alleging dirty conditions at Rikers, including that other inmates threw feces at or near plaintiff because plaintiff failed to provide information about duration of condition and whether fecal matter built up to such an extent that plaintiff's health was placed at risk).
Plaintiff's allegations concerning showers, razor, recreation, television in his cell, access to the commissary and unsanitary cell do not state a claim that his constitutional rights were violated. Thus, I recommend granting the motion to dismiss with respect to Plaintiff's claims based on the unsanitary cell and denials of showers, razor, recreation, television and commissary.
5. ACCESS TO THE COURTS AND COUNSEL
a. Law Library Access
An inmate's right to use a law library may be restricted if the restrictions employed are reasonably related to legitimate penological interests-namely, security. Overton v. Bazzetta, 539 U.S. 126, 132 (2003); Thornburgh v. Abbott, 490 U.S. 401, 409, 413 (1989); Burroughs v. Petrone, 138 F.Supp.3d 182, 210 (N.D.N.Y. 2015). Further, “prison law libraries and legal assistance programs are not ends in themselves, but only the means for ensuring ‘a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.'” Lewis v. Casey, 518 U.S. 343, 351 (1996) (quoting Bounds v. Smith, 430 U.S. 817, 825 (1977)). To state a claim for denial of access to the courts, a plaintiff must allege facts showing that the defendant's conduct “was deliberate and malicious, and that the “defendant's actions resulted in actual injury to the plaintiff.” Banks v. County of Westchester, 168 F.Supp.3d 682, 692 (S.D.N.Y. 2016) (quoting Bellezza v. Holland, 730 F.Supp.2d 311, 314 (S.D.N.Y. 2010). To demonstrate actual injury, a plaintiff must allege: (1) a valid underlying cause of action separate from the right-of-access claim; and (2) frustration or hindrance of the litigation caused by the defendant's actions. See Christopher v. Harbury, 546 U.S. 403, 415 (2002).
Plaintiff asserts that he was denied access to the law library on certain days, and no legal kiosk and typewriter were available to him upon request on several occasions. Defendants argue there is no constitutional right to electronic devices for research and a typewriter. (Def.'s Br. at 20-21.)
“[P]rison inmates do not enjoy a constitutional right to typewriters as implements of access to the courts.” Taylor v. Coughlin, 29 F.3d 39, 40 (2d Cir. 1994). Plaintiff fails to allege how the denial of law library access on certain occasions, including the lack of a legal kiosk and typewriter, hindered his efforts to pursue legal challenges in his criminal case, as he does not assert that he missed any deadlines, was prevented from hand writing his letters and/or briefs, or that he was prevented from or delayed in filing any legal document in his criminal case. See Gamble v. City of New York ex rel. NYC Dep't of Corr., 2009 WL 3097239, at *6 (S.D.N.Y. Sept. 25, 2009) (“The Constitution . . . ‘does not require unlimited and unrestricted access to a law library at the demand of a prisoner'” and “prison officials may place reasonable restrictions on inmates' use of facility law libraries as long as those restrictions do not interfere with inmates' access to the courts.”). Moreover, Plaintiff does not assert that Defendants' occasional denial of law library access resulted in an actual injury, such as dismissal of a meritorious claim. Cancel v. Goord, 2001 WL 303713, at *4 (S.D.N.Y. Mar. 29, 2001) (“Plaintiff Cancel does not state a cognizable § 1983 claim for denial of access to the courts because he has not alleged any actual injury resulting from Defendants' actions.”); see also Means v. Rockland Cnty. Corr. Facility, 2019 WL 1596489, at *7 (S.D.N.Y. Apr. 15, 2019) (finding that plaintiff's assertion that correction officials denied him access to the courts by failing to provide him law books, paper, typewriter, and free telephone calls insufficient to support a claim of denial of access to courts because plaintiff had access to materials to submit to the Court his handwritten complaint); Fusco v. Westchester Cnty. Dep't of Corr., 2021 WL 1254215, at *4 (S.D.N.Y. Apr. 1, 2021). Thus, I recommend that the motion to dismiss be granted with respect to Plaintiff's access to the courts claim based on denial of law library access.
b. Access To Counsel
A pretrial detainee's Sixth Amendment rights are violated when a prison regulation unjustifiably obstructs, infringes, unreasonably burdens or significantly interferes with his access to counsel. Patterson v. Ponte, 2017 WL 1194489, at *3 (S.D.N.Y. Mar. 30, 2017), report and recommendation adopted, 2017 WL 1405753 (S.D.N.Y. Apr. 17, 2017) (citations omitted). To the extent access is restricted based on an institutional rule, the court must evaluate the restriction in light of the goal of institutional security. Bell v. Wolfish, 441 U.S. 520, 547 (1979); Kingsley v. Hendrickson, 576 U.S. 389, 398 (2015); Turner v. Safley, 482 U.S. 78, 89 (1987). Courts also have recognized that prisoners do not have a right to unlimited telephone calls to counsel and that day and time limitations may be imposed. See, e.g., Bellamy v. McMickens, 692 F.Supp. 205, 214 (S.D.N.Y. 1988); Pino v. Dalsheim, 558 F.Supp. 673, 675 (S.D.N.Y. 1983); Patterson, 2017 WL 1194489, at *3-4 (postponement of one phone call and inability to speak with a paralegal on one occasion did not unreasonably burden right to counsel). “Correctional officials may regulate contact with attorneys to a point” to, for example, keep staff, detainees and witnesses safe, and prevent escape. Benjamin v. Fraser, 264 F.3d 175, 185 (2d Cir. 2001). However, regulations must be reasonably necessary to address these legitimate penological concerns. Id. “Further, states have no obligation to provide the best manner of access to counsel. Rather, restrictions on inmates' access to counsel via the telephone may be permitted as long as prisoners have some manner of access to counsel.” Bellamy, 692 F.Supp. at 214.
“[A] prisoner's right to the free flow of incoming and outgoing mail is protected by the First Amendment” and courts “have consistently afforded greater protection to legal mail than to non-legal mail, as well as greater protection to outgoing mail than to incoming mail.” Traore v. Rikers Island C-95 & C-76, 2022 WL 1556946, at *3 (S.D.N.Y. May 16, 2022) (citations omitted). Under the First Amendment, “[Restrictions on prisoners' mail are justified only if they “further[ ] one or more of the substantial governmental interests of security, order, and rehabilitation [and] must be no greater than is necessary or essential to the protection of the particular governmental interest involved.” Davis, 320 F.3d at 351 (citation omitted). The Second Circuit has held that prison officials can only open an inmate's outgoing legal mail if there is a “rational justification” for doing so. Davidson v. Scully, 694 F.2d 50, 54 (2d Cir. 1982) (citing Wolfish, 573 F.2d at 130.).
While a prisoner has a right to be present when his legal mail is opened, an isolated incident of mail tampering is usually insufficient to establish a Constitutional violation. Wolff v. McDonnell, 418 U.S. 539, 574-76 (1974). The Second Circuit has found that “two incidents of mail tampering could constitute an actionable violation (1) if the incidents suggested an ongoing practice of censorship unjustified by a substantial government interest, or (2) if the tampering unjustifiably chilled the prisoner's right of access to the courts or impaired the legal representation received.” Id. “The inmate must show that prison officials ‘regularly and unjustifiably interfered with the incoming legal mail.'” Johnson v. Barone, 2022 WL 344272, at *3 (D. Conn. Feb. 4, 2022) (quoting Davis, 320 F.3d at 351).
“The First Amendment protects prisoners' access to mail directly, unlike the right of access to courts, which protects prisoners' access to mail only derivatively and with respect to given claims.” Bellezza v. Holland, 2011 WL 2848141, at *6 (S.D.N.Y. July 12, 2011). “The right of access to courts gives rise to a number of derivative rights, including the right of inmates to receive [and send] legal mail without interference.” Id. at *4. “To state a claim for denial of access to the courts-in this case due to interference with legal mail-a plaintiff must allege that the defendant ‘took or was responsible for actions that hindered [a plaintiff's] efforts to pursue a legal claim.'” Davis, 320 F.3d at 351 (internal quotation marks and citation omitted). “Unlike prisoners who bring a claim for the violation of a constitutionally protected right, who have standing to assert that right even if the denial of the right did not cause an ‘actual injury,' prisoners who bring a claim for the violation of a derivative right of access to the courts must demonstrate ‘actual injury' in order to have standing.” Collins v. Goord, 581 F.Supp.2d 563, 573 (S.D.N.Y. 2008) (citing Benjamin, 264 F.3d at 185).
Although Plaintiff alleges that his requests to call and send mail to his attorney were denied on several occasions, he does not allege they were entirely denied or that he was prevented from communicating with his attorney in person during attorney visits. See Dublino v. McCarthy, 2019 WL 2053829, at *14 (N.D.N.Y. May 9, 2019) (“Conversely, courts have found that denying an inmate one method of communicating confidentially with his attorney does not give rise to a constitutional violation.”) (collecting cases); see also O'dell'bey v. Semple, 2020 WL 127698, at *8 (D. Conn. Jan. 10, 2020). Thus, plaintiff failed to state a claim for violation of his Sixth Amendment right to attorney based on denial of phone calls and mail to his attorney.
The Sixth Amendment right to counsel also includes the right to communicate with counsel in confidence. Weatherford v. Bursey, 429 U.S. 545, 554 n. 4 (1977) (“[T]he Sixth Amendment's assistance-of-counsel guarantee can be meaningfully implemented only if a criminal defendant knows that his communications with his attorney are private and that his lawful preparations for trial are secure against intrusion by the government, his adversary in the criminal proceeding.”); United States v. Rosner, 485 F.2d 1213, 1224 (2d Cir. 1973) (“[T]he essence of the Sixth Amendment right is, indeed, privacy of communication with counsel.”).
On November 6, 2020, CO Hickson provided a phone call to Plaintiff's attorney, listened to Plaintiff's conversation with his attorney, commented on Plaintiff's grievances to his attorney, stating that Warden Dunbar will retaliate against Plaintiff if she finds out about them, and shared Plaintiff's grievances with McNeil. (SAC ¶ 24.) On November 16, CO McNeil opened and read Plaintiff's mail from his attorney to CO White, they discussed Plaintiff's criminal charges, and CO McNeil asked CO White how much time he thinks Plaintiff would get. (SAC ¶ 44.) On November 17, Plaintiff gave his legal mail for his attorney to ADW Carter, ADW Carter handed Plaintiff's outgoing mail to CO McNeil, who opened, read it, threw it away and started loudly discussing details of the Plaintiff's legal situation and his communication to the attorney in his criminal case. (SAC ¶ 48.)
The CLO 370.20, consistent with the Plaintiff's JLO, provides that Plaintiff is not permitted to receive any mail without inspection and his privileged mail to and from his attorney is not exempted. Defendants failed to articulate any legitimate penological interest in monitoring Plaintiff's privileged, outgoing and incoming legal mail to and from his attorney. Since Plaintiff challenges the CLO 370.20 restrictions and, to the extent that Plaintiff's privileged, outgoing and incoming legal mail to and from his attorney was censored pursuant to the CLO 370.20, and that CO Hickson listened to Plaintiff's confidential communication with his attorney, made threats of retaliation and shared Plaintiff's grievances with CO McNeil, who also read and shared Plaintiff's grievances with CO White, at this stage of litigation Plaintiff's allegations against CO Hickson, CO McNeil, CO White, and ADW Carter are sufficient to state a claim that his constitutional rights under the First and the Sixth Amendments were violated. Thus, I recommend that the motion to dismiss the Plaintiff's claims against CO Hickson, CO McNeil, CO White, and ADW Carter based on violation of his First and Sixth Amendment rights with respect to the privileged communication with and mail from his attorney be denied. See Antrobus v. City of New York, 2014 WL 1285648, at *5 (S.D.N.Y. Mar. 27, 2014).
6. DUE PROCESS CLAIMS RELATED TO REQUIREMENT OF ENHANCED RESTRAINTS
Plaintiff claims that his procedural and substantive due process rights were violated by being designated a CMC case and placed in enhanced restraints without a hearing, including when he was taken to shower, recreation, and medical examinations. The CLO 370.20 required enhanced restraints when Plaintiff was outside of his cell. Plaintiff's complaints implicate his substantive and procedural due process rights under the Fourteenth Amendment, addressed below.
a. Fourteenth Amendment Substantive Due Process
“In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law,” the Supreme Court held that “the proper inquiry is whether those conditions amount to punishment of the detainee.” Bell, 441 U.S. at 535. “[I]in determining whether particular restrictions and conditions accompanying pretrial detention amount to punishment in the constitutional sense of that word,” courts “must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.” Id. at 538. The Supreme Court explained that, “in the absence of an expressed intent to punish, a pretrial detainee can nevertheless prevail by showing that the actions are not ‘rationally related to a legitimate nonpunitive governmental purpose' or that the actions ‘appear excessive in relation to that purpose.'” Kingsley, 576 U.S. at 398 (quoting Bell, 441 U.S. at 541-43)); Edrei v. Maguire, 892 F.3d 525, 535 (2d Cir. 2018).
In Hunter v. City of New York, the plaintiff challenged his placement in a segregated housing unit and being subjected to additional restrictions including enhanced security restraints. 2015 WL 5697218, at *1 (S.D.N.Y. Sept. 28, 2015). The court granted summary judgment finding that there was no evidence that any of the conditions, including the enhanced restraints, were intended to punish him or imposed for any purpose other than the prison's legitimate goal of complying with a state court order mandating that Plaintiff be prevented from making phone calls except to his attorney and prevented from writing or directing others to write to the victim of Plaintiff's crime due to Plaintiff's prior harassing conduct toward the victim. Id. at *9-16; see also Brown v. Doe, 2014 WL 5461815, at *7 (S.D.N.Y. Oct. 28, 2014) (pretrial detainee failed to state claim for substantive due process violation when conditions of confinement were imposed to enforce a court order).
Because the implementation of the CLO implicates other Constitutional protections, namely the free exercise of religion access to counsel, the analysis below focuses on Plaintiff's allegations related to being placed in enhanced restraints, which is assessed under the Fourteenth Amendment as Plaintiff is a pretrial detainee. Here, the CLO imposed security restrictions on all inmates under court ordered lockdown status, including Plaintiff, and established policy and procedures for the care, custody, and control of those inmates. (SAC Ex. 11.) The Lockdown Order was found necessary by the state court to achieve the purpose of preventing Plaintiff from comminating with others. Other cases have found that orders similar to the CLO are generally applicable and not issued to punish a particular detainee and are rationally related to a legitimate governmental objective of complying with the mandates of orders similar to Plaintiff's Lockdown Order. See e.g., Hunter, 2015 WL 5697218.
However, to the extent the CLO's mandate is overbroad and inconsistent with the goal of the Lockdown Order, there may be a valid due process claim. For example, it is unclear how placing Plaintiff in enhanced restraints during exercise/recreation or receiving medical treatment is necessary to achieve the mandate of the State Court's Lockdown Order.
“Courts have recognized that some opportunity for exercise must be afforded to prisoners.” McCray v. Lee, 963 F.3d 110, 117 (2d Cir. 2020) (quoting Anderson v. Coughlin, 757 F.2d 33, 34-35 (2d Cir. 1985)). Here, Plaintiff alleges that on November 16, 2020, he was afforded recreation, but CO Dychese told Plaintiff he had to stay in enhanced restraints during the entire period which deterred him from attending. (SAC ¶ 43.) Plaintiff also alleges that on January 8, 2021 he was approached by Captain Law regarding his recreation grievance, and Captain Law stated she was enforcing the restrictions in the CLO that Plaintiff had to be in enhanced restraints. (SAC ¶ 76.) And, Plaintiff alleges he filed a grievance on November 18, 2020 regarding recreation equipment and received a favorable outcome, but on December 8, 2020, Warden Rene nullified the grievance and stated that Plaintiff was “only due the ‘direct air and sunlight' provided by standing idle in a cage.” (SAC ¶ 70.)
Plaintiff also alleges that on November 8, 2020 he was told by officers that he would have to remain in enhanced restraints. (SAC ¶ 29.) However, Plaintiff fails to allege the personal involvement of a specific officer to support his claim on this occasion.
Courts in this circuit, including the Second Circuit have noted that requiring enhanced restraints may deprive a prisoner a meaningful opportunity to exercise and that such law is clearly established. See Edwards v. Quiros, 986 F.3d 187, 192 (2d Cir. 2021) (“we conclude that there was sufficient evidence for the jury to find that [the warden] had the requisite state of mind for the entire six-month period during which Edwards was required to exercise in restraints when outside of his cell”); McCray, 963 F.3d at 120 (“In this Circuit the rights of prisoners to a meaningful opportunity for physical exercise had been clearly established nearly three decades [ago]”); see also Brown v. Venettozi, 2021 WL 323264, at *6 (S.D.N.Y. Feb. 1, 2021). Thus, given the facts noted above, Plaintiff has plausibly alleged a violation of his rights regarding the use of enhanced restraints while exercising. See Paul v. LaValley, 712 Fed.Appx. 78, 79 (2d Cir. 2018) (“Accordingly, we have agreed with other Circuits that some opportunity for exercise must be afforded to prisoners, and we have held that this right was clearly established for qualified immunity purposes by no later than 1985[.]”) (internal citations and quotation marks omitted). Defendants are not entitled to qualified immunity on Plaintiff's meaningful exercise claim because there is clearly established law that placing an inmate in enhanced restraints during exercises infringes on the right to meaningful exercise. See Edwards, 986 F.3d at 195 (“The jury reasonably determined, upon sufficient evidence, that Quiros knowingly violated Edwards's clearly established right to meaningful exercise under the circumstances and lacked a sufficient justification for doing so. We will not disturb the jury's finding that Quiros was not entitled to qualified immunity.”).
While Plaintiff's allegations that he was placed in enhanced restraints while receiving medical care raises a plausible claim that the restraints were excessive for their purpose, Defendants are entitled to qualified immunity with regard to their use of enhanced restraints in this circumstance because there is no clearly established law that an inmate under a Lockdown Order may not be placed in restraints during while receiving medical care. See Lennon, 66 F.3d at 416.
Accordingly, I recommend that the motion to dismiss the substantive due process claim be denied as to requiring enhanced restraints while exercising but otherwise granted.
b. Fourteenth Amendment Procedural Due Process
To the extent that Plaintiff asserts a liberty interest in not being classified as a CMC inmate, such a claim warrants dismissal because no liberty interest exists in avoiding prison classification. See Pugliese v. Nelson, 617 F.2d 916, 925 (2d Cir. 1980) (“[J]udicial intervention into the classification of prisoners for monitoring and control purposes would almost inevitably involve the federal courts in the day-to-day operations of our prison system, which are better left to the expertise of prison administration authorities.”); see also Hunter, 2015 WL 5697218, at*12 (collecting cases).
However, this does not end the inquiry as to whether Plaintiff was entitled to some procedural due process before being designated for placement in enhanced restraints. The level of procedural protection required differs according to the purpose of the confinement. Benjamin, 264 F.3d at 190. If the restraint is imposed for disciplinary reasons, a prisoner must be provided written notice, adequate time to prepare a defense, a limited ability to present witnesses and evidence, and a written statement of the reasons for the discipline. Id. (citing Wolff, 418 U.S. at 561-70). If the restraint is for administrative purposes such as to mitigate a security threat or to segregate pending a completion of a misconduct investigation, an inmate “must merely receive some notice of the charges against him and an opportunity to present his views.” Id. (citing Hewitt v. Helms, 459 U.S. 460, 476 (1983)); see also Proctor v. LeClaire, 846 F.3d 597, 608 (2d Cir. 2017) (administrative segregation is permitted if necessary to incapacitate a detainee who poses a security threat or to conduct and complete an investigation into misconduct).
Prison officials also must conduct periodic reviews to determine whether an individual remains a security risk warranting the liberty restriction-a case-by-case factual assessment coupled with the prison conditions and tensions at the time. Parson v. Miller, 2018 WL 4233810, at *5 (N.D.N.Y. May 25, 2018), report and recommendation adopted, 2018 WL 4228427 (N.D.N.Y. Sept. 5, 2018). Prison officials are accorded substantial deference in the adoption of policies and procedures to ensure institutional security. Proctor, 846 F.3d at 610.
The purpose of the CLO is to comply with the State Court Lockdown Order, which is not disciplinary or purely administrative. (SAC Ex. 11.) This Court was unable to identify any Supreme Court or Circuit case setting forth the procedure for assessing or re-assessing restrictions imposed to implement a court order. A detainee could of course challenge a State Court order issued in his underlying criminal case through his defense attorney and notify the prison if and when the State Court order is lifted, at which time the prison presumably would cease subjecting the detainee to the internal prison procedures implemented solely to enforce the State Court order. But, to the extent a prison order was issued to implement a Court Order, the prison order presumably would remain in effect without review until the Court Order is lifted or modified. A prison could afford a hearing in advance of subjecting a detainee to such an order so that the detainee could challenge its scope to the extent it exceeded the dictates of the State Court order; however, the detainee could also go back to the state judge who issued the order to seek clarification of the restrictions required. Again, this Court could find no cases on point.
Since no clearly established law exists establishing that a pretrial detainee, such as Plaintiff, has a right to a hearing prior to or after imposition of enhanced restraints implemented purportedly for purposes of implementing a court-issued Lockdown Oder, the individual Defendants are entitled to qualified immunity on the Plaintiff's claim of violation of the procedural Due Process Clause of the Fourteenth Amendment. See Wills v. Microgenics Corp., 2021 WL 3516419, at *5 (E.D.N.Y. Aug. 10, 2021) (finding defendants were entitled to qualified immunity because former inmate's due process claim was not clearly established). Accordingly, dismissal of this claim is warranted.
7. MEDICAL CLAIMS AND PRIVACY
When evaluating a claim of deliberate indifference to medical needs by a pretrial detainee, the same basic two-prong test described above applies. That is, the deprivation must be sufficiently serious, and the defendant must act with a sufficiently culpable state of mind. Darnell, 849 F.3d at 29; Charles v. Orange County, 925 F.3d 73, 87 (2d Cir. 2019) (“Although Darnell did not specifically address medical treatment, the same principle applies here.”). However, the inquiry is slightly different on the first prong. The Court assesses (1) whether the detainee “was actually deprived of adequate medical care” and (2) whether the inadequacy in medical care is sufficiently serious, which in turn “requires the court to examine how the offending conduct is inadequate and what harm, if any, the inadequacy has caused or will likely cause the prisoner.” Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir. 2006).
The Second Circuit has set forth a non-exhaustive list of factors for courts to consider when undertaking the inquiry on the first prong including “(1) whether a reasonable doctor or patient would perceive the medical need in question as important and worthy of comment or treatment, (2) whether the medical condition significantly affects daily activities, and (3) ‘the existence of chronic and substantial pain.'” Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003) (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)). To be sufficiently serious to pose a risk of damage to inmate's health, there must exist “a condition of urgency, one that may produce death, degeneration, or extreme pain.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (quoting Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)). Further, “prison officials and medical officers have wide discretion in treating prisoners, and Section 1983 is not designed to permit federal courts to interfere in the ordinary medical practices of state prisons.” Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F.Supp.2d 303, 311 (S.D.N.Y. 2001) (citation omitted).
If there has been a total failure to provide treatment, the Court assesses whether the medical condition is sufficiently serious. Davis v. McCready, 283 F.Supp.3d 108, 120 (S.D.N.Y. 2017). But if some treatment has been provided, the court focuses on any delay or interruption in treatment in assessing the seriousness of the deprivation, rather than the underlying medical condition itself, and injuries attributable to the delay or interruption in treatment. Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003).
When assessing the subjective, or mens rea prong, the court assesses whether “an objectively reasonable person in [d]efendant's position would have known, or should have known, that [d]efendant's actions or omissions posed an excessive risk of harm” to the plaintiff. Davis, 283 F.Supp.3d at 120 (citing Darnell, 849 F.3d at 35). “[S]omething more than negligence is needed to elevate a claim of medical misconduct to a constitutional tort.” Id. at 121 (citing Darnell, 849 F.3d at 36).
A prisoner's right to privacy in his medical information is protected by the Fourteenth Amendment. Hancock v. County of Rensselear, 882 F.3d 58, 65 (2d Cir. 2018). However, the right is not unqualified. Rush v. Artuz, 2004 WL 1770064, at *11 (S.D.N.Y. Aug. 6, 2004). “[T]he interest in the privacy of medical information will vary with the condition.” Powell v. Schriver, 175 F.3d 107, 111 (2d Cir. 1999). Thus, courts have recognized a right to privacy in an inmate's transsexualism and HIV positive status because in the prison context these conditions may provoke hostility and intolerance from others. Id.
Courts within the Second Circuit have declined to recognize a claim for violation of medical privacy with regard to disclosure of mental health disorders because such disclosure was not likely to expose an inmate to discrimination or intolerance. See, e.g., Gibson v. Rosati, 2016 WL 11478234, at *5 (N.D.N.Y. May 19, 2016) (finding that the plaintiff's mental health history, recent mental health diagnosis, and compliance with psychiatric medications did not constitute protected information); Ruple v. Bausch, 2010 WL 3171783, at *4 (N.D.N.Y. July 21, 2010) (declining to extend Fourteenth Amendment protection where the plaintiff suffered from depression and possible liver damage). Magistrate Judge Cott recently determined that bipolar disorder is likely not such a condition demanding confidentiality under the Fourteenth Amendment. Dash v. Doe, 2020 WL 3057133, at *3 (S.D.N.Y. June 9, 2020) (finding Magistrate Judge Cott's determination correct and adopting his Report).
Further, even if a medical condition is one demanding privacy under the Fourteenth Amendment, prison officials can impinge that right if their actions are reasonably related to legitimate penological interests. Powell, 175 F.3d at 112; Dash, 2020 WL 3057133, at *3. The law is also clear that “gratuitous disclosure of an inmate's confidential medical information as humor or gossip . . . is not reasonably related to a legitimate penological interest, and it therefore violates the inmate's constitutional right to privacy.” Id. at 112.
Plaintiff does not allege that providing mental health to him in his cell posed an unreasonable risk of serious injury to his health or that the mental health provider acted intentionally or recklessly in failing to mitigate the risk posed by the condition. Plaintiff's mental illness is not a condition similar to that of HIV or transsexuality where courts have recognized that disclosure would impinge on the Fourteenth Amendment right of privacy. Plaintiff's allegations that he has a history of mental illness, received mental health services in his cell and the mental health provider spoke loudly are insufficient to state a claim for deliberate indifference to his health and violation of his medical information privacy. Thus, I recommend that the claims based on providing mental health in Plaintiff's cell and lack of privacy of his mental health condition be dismissed.
Plaintiff also alleges that he suffered smoke inhalation on November 24, 2020, when he could not breathe and started vomiting, but CO Lawrence and CO Oxley denied Plaintiff's request to call medical emergency. (SAC ¶ 62.) Additionally, on January 11, 2021, Plaintiff became overwhelmed with smoke and soot and could not breathe, but ADW Louis instructed Captain Loiseau not to let Plaintiff out of his cell because Plaintiff set the fire in his cell. (SAC ¶ 80). ADW Louis stated, “[l]et that motherfucker choke and die; stupid-ass wanna set fires, huh?” (Id.) Captain Loiseau watched Plaintiff choke and gasp for air but eventually let Plaintiff out and took him to the clinic for smoke inhalation. (Id.) A reasonable person would find that prolonged exposure to smoke inhalation significantly affects an individual's breathing and, consequently, daily activities and has potential to inflict substantial chest pain and potential death. See Gumora v. City of New York, 2018 WL 736018, at *5 (S.D.N.Y. Feb. 5, 2018) (“Courts in this district have consistently held that conditions of confinement that expose inmates to unreasonable levels of smoke satisfy the objective prong.”). Plaintiff was not allowed outside of his cell or provided medical assistance when he suffered breathing difficulties and vomited on November 24, 2020, and, although he did not indicate how long he was exposed to the smoke inhalation on January 11, 2021, he alleges that he was overwhelmed with smoke and soot, and he was choking and gasping for air. Thus, Plaintiff's allegations are sufficient to plead that his medical needs related to smoke inhalation were sufficiently serious. As for mens rea, Plaintiff sufficiently alleges that CO Lawrence and CO Oxley denied Plaintiff's request to call medical emergency and ADW Louis instructed Captain Loiseau not to let Plaintiff out because he set the fire in his cell and watched him choke and gasp for air, before letting him out.
Allegations that the Defendants were aware of the smoke and Plaintiff's complaints that he was having trouble breathing, coupled with CO Lawrence's and CO Oxley's denial of Plaintiff's request for medical assistance on November 24, 2020, and ADW Louis instructing Captain Loiseau not to let Plaintiff outside of cell while watching him choke and gasp for air on January 11, 2021, give rise to a plausible inference that Defendants were deliberately indifferent to Plaintiff's medical needs on this occasion. See Garcia v. Fischer, 2016 WL 297729, at *7 (S.D.N.Y. Jan. 22, 2016) (Where the smoke condition was apparent at 2:00 a.m., but defendants failed to call the fire department until 3:17 a.m. or begin evacuating plaintiffs until 4:00 a.m., this “could give rise to the inference that defendants knew plaintiffs were being exposed to unreasonably dangerous heavy smoke, yet deliberately chose not to alleviate this for two or more hours.”).
Thus, I recommend denying the motion to dismiss with regard to Plaintiff's claims against CO Lawrence, CO Oxley, ADW Louis, and Captain Loiseau for deliberate indifference to Plaintiff's medical needs in connection with smoke inhalation.
8. FIRST AMENDMENT RETALIATION
“[I]t is well established that ‘retaliation against a prisoner for pursuing a grievance violates the right to petition government for the redress of grievances guaranteed by the First and Fourteenth Amendments and is actionable under § 1983.'” Dolan v. Connolly, 794 F.3d 290, 294 (2d Cir. 2015) (quoting Graham v. Henderson, 89 F.3d 75, 80 (2d Cir.1996)). A plaintiff asserting First Amendment retaliation claims must allege “(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.” Id. (quoting Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009)). The filing of a prison grievance is protected activity. Id. To constitute an adverse action, the retaliatory conduct has to be of a nature that it would “deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights[.]” Davis, 320 F.3d at 353 (quoting Dawes v. Walker, 239 F.3d 489, 491 (2d Cir.2001)).
“[T]o satisfy the causation requirement, allegations must be sufficient to support the inference that the speech played a substantial part in the adverse action.” Id. at 354 (cleaned up). When determining a causal connection, courts may infer a retaliatory motive in the adverse action from: (1) “the temporal proximity of the filing to the grievance and the disciplinary action”; (2) “the inmate's prior good disciplinary record”; (3) “vindication at a hearing on the matter”; and (4) “statements by the defendant regarding his motive for disciplining the plaintiff.” Thomas v. DeCastro, 2019 WL 1428365, at *9 (S.D.N.Y. Mar. 29, 2019) (quoting Barnes v. Harling, 368 F.Supp.3d 573, 600 (W.D.N.Y. 2019)); see also Espina, 558 F.3d at 129.
Here, Defendants did not make a specific argument for dismissal of Plaintiff's First Amendment retaliation claim. Plaintiff sufficiently alleges that that Warden Dunbar and ADW Henry grabbed him by his shirt and Warden Dunbar stated that if Plaintiff continued to grieve about not receiving shower and pursue litigation, he would never shower, and directed CO Nzeama to give Plaintiff reduced portions of food, which CO Nzeama did when Plaintiff's dinner arrived that day. (SAC ¶¶ 13-14.) Warden Dunbar also directed CO Ritter and CO Hickson not to allow Plaintiff any phone calls or outgoing mail, including to his attorney, because he had been “lodging complaints and ratting on us” (SAC ¶ 41), and denial of his phone calls and mail were accompanied on many occasions by Defendants' statements that they were acting because Plaintiff complained about Defendants by filing grievances. CO McNeil denied Plaintiff's request to call his attorney and informed him that the reason for denial was Plaintiff's filing of complaints through his attorney. (SAC ¶ 66.) ADW Carter denied placing a television in Plaintiff's cell because he continued to file complaints. (SAC ¶ 67.)
ADW Carter and CO Ritter also propositioned Plaintiff to attack another inmate in exchange for their ensuring that he would have all the required services (SAC ¶ 72), but when Plaintiff refused and requested to use the phone, CO Ritter denied the request based on Plaintiff's denial of the proposition. (Id.) Thus, as alleged, the refusal to attack another inmate is adequate to support a claim of retaliation as Plaintiff suffered adverse consequences. See Bryant v. Higbee, 2017 WL 4365988, at *16 (D.N.J. Sept. 29, 2017) (finding that Plaintiff has adduced sufficient evidence, through his sworn testimony and additional evidence in the record, for a reasonable fact-finder to conclude that he was retaliated against by refusing to assault another inmate at defendant's behest); see also Lewis v. Hanson, 2022 WL 991729, at *26 (N.D.N.Y. Mar. 31, 2022) (“a retaliatory transfer to a facility with more restrictions constitutes an adverse action sufficient to discourage other inmates form exercising their right”).
Plaintiff also alleges that when Captain Law received Plaintiff's recreation grievance, she stated that she “will personally see to it that Plaintiff can't do anything outside, as far as engage in meaningful recreation” (SAC ¶ 76; SAC p. 423) and, when Plaintiff attempted to submit a grievance to her, Captain Law stated that Plaintiff is “doing too much with that grievance system. I'm getting E-Mails about putting a pull-up station in the rec area. I don't care about none of that,” and “[k]eep with that grievance shit: we gon' see about you.” (Id.) Additionally, CO McNeil denied Plaintiff the right to use the phone because he filed complaints about his cell extraction. (SAC ¶ 66.) Moreover, ADW Carter harassed Plaintiff because of “the grievances and complaints that my Attorney and myself have filed.” (SAC Exhibit 30, ECF No. 24-2, p. 2425). As Plaintiff has a right to file grievances, the threat of preventing him from engaging in meaningful recreation, which is arguably more meaningful here because Plaintiff is already under a lockdown order, Plaintiff's allegations are sufficient to survive the instant motion. See Davis, 320 F.3d at 352-53 (“the filing of prison grievances is a constitutionally protected activity”).
In sum, Plaintiff's allegations are sufficient, at this stage, to state a claim for the First Amendment retaliation against Warden Dunbar, ADW Henry, CO Nzeama, CO Ritter, CO Hickson, CO McNeil, ADW Carter and Captain Law. Thus, I recommend that the motion to dismiss the First Amendment retaliation claims against these Defendants be denied.
9. VIOLATIONS BASED ON RELIGION
Defendants did not make a specific argument for dismissal of Plaintiff's claims based on his religion. Plaintiff alleges that CO Oxley denied Plaintiff's request to call the facility Imam. (SAC ¶ 60.) Plaintiff was approached by a Rabbi who asked if he would like to speak about religion with a Chaplain instead of an Imam, but Plaintiff responded that there was no reason he would speak with a Chaplain because he is a Muslim. (SAC ¶ 75.) Other inmates were receiving religious services while Plaintiff's request for Imam was denied. (Id.) On April 12, 2021, when the holy month of Ramadan commenced, Plaintiff began to fast in observance of the celebration, but he never received “a suhur bag to break fast . . . with Halal food” during the entire month of Ramadan that lasted through May 12, despite requesting it and confirming that Plaintiff was enlisted as Muslim with the DOC before the Ramadan started. (SAC ¶¶ 10107.) When Plaintiff inquired with CO Young why his Quran, prayer rug and family photographs that were removed from his cell on November 24, 2020 were not documented, CO Young stated that Plaintiff can only have one Bible and “this is America! We don't like Muslims.” (SAC ¶ 58.)
“Sahur is the light pre-dawn meal eaten by Muslims during Ramadan.” Shakur v. Thomas, 2016 WL 11478237, at *3 (N.D.N.Y. June 2, 2016), report and recommendation adopted, 2016 WL 4617242 (N.D.N.Y. Sept. 6, 2016) (citing http://en.islamway.net/article/12571/suhur-pre-dawn-meal).
“The First Amendment, applicable to the States by reason of the Fourteenth Amendment,” Cruz v. Beto, 405 U.S. 319, 322 (1972), provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. I. “Inmates clearly retain protections afforded by the First Amendment, including its directive that no law shall prohibit the free exercise of religion.” O'Lone v. Est. of Shabazz, 482 U.S. 342, 348 (1987) (citations omitted). “[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests" Id. at 349 (citation omitted).
Courts consider the following factors in determining the reasonableness of a regulation or conduct burdening religious exercise: (1) whether there is a “valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it;” (2) “whether there are alternative means of exercising the right that remain open to [the] prison inmate;” (3) “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally;” and (4) “the absence of ready alternatives is evidence of the reasonableness of a prison regulation." Turner, 482 U.S. at 89-91. Assuming that the required burden on religious exercise under the Free Exercise Clause must be substantial, the Second Circuit stated that “establishing a substantial burden is ‘not a particularly onerous task.'” Brandon v. Kinter, 938 F.3d 21, 32 (2d Cir. 2019) (quoting McEachin v. McGuinnis, 357 F.3d 197, 202 (2d Cir. 2004)).
The Second Circuit also has noted that “courts have generally found that to deny prison inmates the provision of food that satisfies the dictates of their faith does unconstitutionally burden their free exercise rights.” McEachin, 357 F.3d at 203. Nonetheless, “incidents that are isolated, or few in number, involving a denial of religiously-mandated food, do not give rise to a First Amendment claim.” Maldonado v. Westchester County, 2021 WL 356155, at *5 (S.D.N.Y. Feb. 2, 2021) (quoting Washington v. Afify, 968 F.Supp.2d 532, 538 (W.D.N.Y. 2013) (collecting cases)). Similarly, a prison must permit a “reasonable opportunity for an inmate to engage in religious activities but need not provide unlimited opportunities.” Van Wyhe v. Reisch, 581 F.3d 639, 657 (8th Cir. 2009); see also Czekalski v. Hanks, 2020 WL 7231358, at *22 (DNH Dec. 8, 2020).
Plaintiff's allegations give rise to a plausible claim of a violation of his free exercise rights under the First Amendment with regard to denial of his request for an Imam, the Rabbi's offer that Plaintiff speak with a Chaplain instead of Imam, and Defendants' failure to provide Plaintiff suhur during the entire month of the Ramadan, from April 12 to May 12, 2021, despite Plaintiff's requests and Defendants' confirmation that Plaintiff was registered as Muslim with the DOC beforehand (SAC ¶¶ 101-07), coupled with the removal of Plaintiff's Quran and prayer rug from his cell without documentation because, as CO Young stated, Plaintiff can only have one Bible and “this is America! We don't like Muslims.” (SAC ¶ 58.)
In addition to the First Amendment Free Exercise violations, the Court interprets Plaintiff's allegations based on religion also to assert violations of Plaintiff's rights under the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq. (“RLUIPA”). RLUIPA “protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion.” Cutter v. Wilkinson, 544 U.S. 709, 721 (2005). RLUIPA ensures “greater protection for religious exercise than is available under the First Amendment.” Ramirez v. Collier, 142 S.Ct. 1264, 1277 (2022) (citation omitted). Defendants do not advance any argument for dismissal of Plaintiff's RILUPA claims. Accordingly, Plaintiff's RLUIPA claims remain in the action. The Court also construes the SAC as stating a claim for denial of equal protection under the Fourteenth Amendment insofar as it asserts the CLO provided for Bibles to be given to detainees to the exclusion of Quran. Defendants have not moved to dismiss this claim, so it too remains in the action.
To the extent Defendants argue that they are entitled to qualified immunity because they relied on the CLO, it is not warranted as caselaw suggests burdening religious exercise without justification violates the law. See Sabir v. Williams, 37 F.4th 810, 823-24 (2d. Cir.2022) (holding that the wardens were not entitled to dismissal of the SAC based on qualified immunity because case law and the text of a similar statute clearly established substantially burdening religious exercise without justification violated the law). Further, Plaintiff pleads plausibly and sufficiently the Defendants were aware of his religious identity and that he was classified as Muslim before the start of Ramadan. Accordingly, Defendants are not entitled to qualified immunity as to this cause of action.
10. EXCESSIVE USE OF FORCE
To establish a claim of excessive force, a pretrial detainee “must show only that the force purposely or knowingly used against him was “objectively unreasonable” given the facts and circumstances at the time. Kingsley, 576 U.S. 389, 396-97, 403; Edrei, 892 F.3d at 534. Courts consider a number of factors when determining objective reasonableness, including: the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting. Edrei, 892 F.3d at 534; see also Barnes v. Harling, 368 F.Supp.3d 573, 592 (W.D.N.Y. 2019) (discussing factors).
Here, Plaintiff alleges that Defendants used excessive force: (1) on November 16, 2020, when Captain Palmer-Campbell handcuffed Plaintiff inside his cell, and ADW Carter refused to remove handcuffs until the following morning at 11:30 a.m., causing Plaintiff's hands to become numb after several hours (SAC ¶¶ 46-47); (2) during Plaintiff's November 24, 2020 removal from his cell by Captain Blake, “Humphries #13844,” CO Castro, CO Likoua, “Smith #1753,” “Vasquez # 11590” and “Williams # 3906” when he sustained bruises, lacerations, and subsequent scaring to his left forearm (SAC ¶¶ 53-57); (3) on January 11, 2021, when Plaintiff refused to return to his cell, “climbed atop a ledge that was twenty feet above ground level,” and upon Captain Arias' order that Plaintiff be pulled down, “CO Smith #1650” jumped and grabbed Plaintiff, causing him to fall to the ground and sustain “a deep, vertical scrape down plaintiffs back” (SAC ¶¶ 82-83); and (4) during the January 13, 2021 search of Plaintiff's cell when CO Reid removed Plaintiff's sneakers and another officer “put their knees atop plaintiff's neck, obstructing plaintiff's breathing” (SAC ¶ 86).
Although “[d]e minimis injuries from handcuffing such as numbness or inflammation are insufficient to sustain an excessive force claim,” McGarrell v. Arias, 2019 WL 2528370, at *4 (S.D.N.Y. Mar. 1, 2019), report and recommendation adopted, 2019 WL 1254880 (S.D.N.Y. Mar. 19, 2019), the duration of time during which Plaintiff suffered hands numbness when he was left in the handcuffs overnight and refusal to alleviate the injury without any apparent reason, are additional factors making plausible Plaintiff's claim of excessive force related to handcuffing in his cell on November 16 and 17, 2020. Similarly, Plaintiff sustained injuries that are not insignificant during the November 24, 2020 removal from his cell, his fall form the ledge on January 11, 2021, and the January 13, 2021 search of his cell. While ultimately Plaintiff may not prevail on his claims of excessive force, at this stage of litigation, Plaintiff's allegations are plausible and sufficient to state a claim for excessive use of force against Captain PalmerCampbell, ADW Carter, Captain Blake, “Humphries #13844,” CO Castro, CO Likoua, “Smith #1753,” “Vasquez # 11590,” “Williams #3906,” Captain Arias, “CO Smith #1650,” and CO Reid.
11. STOLEN PROPERTY
Defendants did not address Plaintiff' claims concerning stolen property. Plaintiff asserts that: (1) on November 16, 2020, CO McNeil took his clothing package received by the facility (SAC ¶ 45); (2) Plaintiff's Quran, prayer rug and family photographs removed during the November 24 were confiscated and not returned (SAC ¶ 58); and (3) Plaintiff's the January 13, 2021 shirt sweatpants and a pair of sneakers were confiscated during the January 13, 2021 search and never returned, as ADW Carter and CO Ritter promised (SAC ¶ 100).
A claim for deprivation of property is not recognized in federal court if the state courts provide a remedy for the deprivation of that property. See Hudson v. Palmer, 468 U.S. 517, 533 (1984); Marino v. Ameruso, 837 F.2d 45, 47 (2d Cir. 1988) (citations omitted). “[T]he availability of an action in the Court of Claims provides [an] adequate post-deprivation remedy for prisoners who claim deprivation of personal property by prison officials.” Jones v. Harris, 665 F.Supp.2d 384, 401 (S.D.N.Y. 2009) (describing procedure available to state prisoners). Thus, “even the intentional destruction of an inmate's property by a prison officer does not violate the Due Process Clause if the state provides that inmate with an adequate postdeprivation remedy.” Little v. Mun. Corp., 51 F.Supp.3d 473, 499 (S.D.N.Y. 2014) (New York state law provides pretrial detainees with an adequate post-deprivation remedy, that is, Section 9 of the Court of Claims Act); see also Bazelais v. Rikers Island Corr. Ctr. (D.O.C.), 2022 WL 2805590, at *3 (S.D.N.Y. July 18, 2022).
Plaintiff does not allege that New York does not provide an adequate post-deprivation remedy for his claim that Defendants stole his property or that there is a systemic failure in Defendants' procedures governing confiscation and return of inmate property. See Butler v. Castro, 896 F.2d 698, 700 (2d Cir. 1990) (“[T]he existence of independent state relief does not defeat a Section 1983 claim where the deprivation complained of results from the operation of established state procedures.”). Thus, I recommend that Plaintiff's claims concerning stolen property be dismissed for failure to state a claim.
12. MUNICIPAL LIABILITY
A municipality cannot be held liable under Section 1983 under a respondeat superior theory. City of Canton v. Harris, 489 U.S. 378, 392 (1989). Rather, it can be liable only if the
Constitutional violations are caused by execution of a government policy or custom, “whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 694 (1978). “Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011). A plaintiff may demonstrate that such a policy or custom exists by introducing evidence of one of the following:
(1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question; (3) a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage of which a supervising policy-maker must have been aware; or (4) a failure by policymakers to provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees.Jones v. Westchester County, 182 F.Supp.3d 134, 158 (S.D.N.Y. 2016) (quoting Brandon v. City of New York, 705 F.Supp.2d 261, 276-77 (S.D.N.Y. 2010)). To prevail on a Monell claim, a plaintiff must also show that “there is a direct causal link between [the] municipal policy or custom and the alleged constitutional deprivation” he suffered. City of Canton, 489 U.S. at 385. “When a municipality chooses a course of action tailored to a particular situation, this may also represent an act of official government policy as that term is commonly understood.” Montero v. City of Yonkers, New York, 890 F.3d 386, 403 (2d Cir. 2018) (citing Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 125 (2d Cir. 2004)) (internal quotation marks omitted).
When alleging an affirmative municipal policy, “a plaintiff must make factual allegations that support a plausible inference that the constitutional violation took place pursuant either to a formal course of action officially promulgated by the municipality's governing authority or the act of a person with policymaking authority for the municipality.” Missel v. County of Monroe, 351 Fed.Appx. 543, 545 (2d Cir. 2009). The action of a single decisionmaker who has final authority may be sufficient to support Monell liability. Montero, 890 F.3d at 403. To determine whether an official has final decisionmaking authority, the official need not be a policymaker for all purposes, rather, “with respect to the conduct challenged, he must be responsible under state law for making policy in that area of the municipality's business.” Graham v. City of New York, 2009 WL 909620, at *2 (E.D.N.Y. Mar. 31, 2009) (quoting Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir.2000) (internal quotation marks and alterations omitted)). Courts have noted that it is often unclear whether wardens may be policymaker to support a Monell claim. See Id. (denying summary judgment and noting it is unclear whether Warden Curcio is a policymaker under state law); Pembaur v. City of Cincinnati, 475 U.S. 469, 483 n.12 (1986) (plurality opinion) (noting in dicta that a county sheriff, for example, may serve as an official policymaker for municipal-liability purposes with respect to some actions but not others); Elliott v. Mgmt. & Training Corp., 2017 WL 3089693, at *7 (N.D. Miss. July 19, 2017) (accepting on summary judgment that the warden may be an official policymaker); Sugamosto v. Emerald Corr. Mgmt., LLC, 2013 WL 12333651, at *3 (D.N.M. Feb. 13, 2013) (denying motion to dismiss because plaintiff sufficiently alleged that the warden possessed the authority to craft official prison policy requiring that plaintiff be shackled).
At this stage of the litigation, it is premature to definitively determine whether Warden Dunbar and Warden Rene a final decisionmaker to support municipal liability, thus dismissal is unwarranted. Here, Plaintiff alleges and provides documentation that Warden Dunbar drafted and enforced the CLO, a course of action supposedly tailored to the Lockdown Order to which Plaintiff was subject. (See SAC p. 423; SAC Ex. 11.) The CLO explicitly mentions that the inmates to which it applied may have a Bible, but does not mention other religious texts. (SAC Ex. 11.) The CLO, as written, may be violative of Plaintiff's Fourteenth Amendment rights to equal protection insofar as it provides greater protection to inmates requesting Bibles and not other religious texts such as Qurans and the Lockdown Order says nothing about limiting access to books. Further, Plaintiff alleges that he was told that he was not permitted to have a Quran because the CLO only permitted him to have a Bible. (See SAC ¶ 58.) Plaintiff also alleges that he was offered the opportunity to meet with a rabbi or chaplain who was visiting other similarly situated inmates but was not provided the opportunity to meet with an Imam. (SAC ¶ 75.) Thus, it is plausible that the CLO, the policy in question, was overbroad and caused the constitutional deprivation of not being provided a Quran or access to an Imam while allowing others a Bible and a religious leader. Similarly, the Lockdown Order did not specifically mandate enhanced restraints during exercise. Plaintiff alleges to have filed a grievance on November 18, 2020 regarding recreation and was told by Warden Rene that he was only entitled to direct air and sunlight. (SAC ¶ 70.) Insofar as the Second Circuit has indicated that enhanced restraints during recreation time may unconstitutionally burden a detainees's right to engage in meaningful exercise, the CLO was overbroad. Thus, a plausible Monell claim is stated as to this aspect of the CLO as well.
The same is not true for Plaintiff's claim that his Fourteenth Amendment rights were violated when he was placed in enhanced restraints during medical treatment under a deliberate indifference theory. The individual Defendants are alleged to have construed the CLO as mandating enhanced restraints in this circumstance, even though the CLO does not expressly state this (in contrast to mandating enhanced restraints for exercise). Thus, it is unclear whether the CLO was intended to cover this circumstance. The applicable Monell theory here would be that the Warden was deliberately indifferent to the manner in which individual officers were implementing the CLO. “To establish deliberate indifference a plaintiff must show that a policymaking official was aware of constitutional injury, or the risk of constitutional injury, but failed to take appropriate action to prevent or sanction violations of constitutional rights.” Jones v. Town of East Haven, 691 F.3d 72, 81 (2d Cir. 2012). Here, Plaintiff does not allege that any policymaker (i.e., Warden Dunbar) was actually aware that subordinates were enforcing the CLO to require enhanced restraints while receiving medical treatment. He only alleges that ADW Phillips placed him in enhanced restraints in medical, which he protested as not being on enhanced restraint status. (See SAC ¶ 87.) Personal knowledge cannot be imputed to Warden Dunbar because the CLO does not explicitly state that prisoners should be handcuffed when receiving medical attention or consulting their attorneys. Thus, Plaintiff has not plausibly alleged that Dunbar was deliberately indifferent and failed to take appropriate corrective action. The same cannot be said for Plaintiff's claim concerning his right to exercise because the CLO clearly states “inmates will be restrained in waist chains[,] handcuffs[,] and mitts whenever they are out of their cells for recreation.” (SAC Ex. 11.) In other words, Dunbar wrote the CLO with that restriction and had knowledge of it notwithstanding applicable case law stating that such restraints constitute an infringement of the right to meaningfully exercise.
Accordingly, I recommend denying Defendants' motion to dismiss Plaintiff's municipal liability claim with respect to the equal protection claims relating to the provision of religious texts and being placed in enhanced restraints when exercising. To the extent Plaintiff is raising other municipal liability claims, I recommend that those claims be dismissed.
13. NEGLIGENT TRAINING AND SUPERVISION
In addition to Constitutional claims, Plaintiff asserts state law negligent hiring, retention, training, and supervision claims. To state a claim for negligent hiring, retention, training and supervision, a plaintiff must first demonstrate an employee was negligent. Mena v. City of New York, 2019 WL 1900334, at *5-6 (S.D.N.Y. Apr. 29, 2019). Once this is established, a plaintiff must allege:
(1) that the tort-feasor and the defendant were in an employeeemployer relationship; (2) that the employer knew or should have known of the employee's propensity for the conduct which caused the injury prior to the injury's occurrence; and (3) that the tort was committed on the employer's premises or with the employer's chattels.Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir.2004) (cleaned up). In addition, “a claim for negligent training or supervision can only proceed against an employer for an employee acting outside the scope of her employment.” Id.; Mena, 2019 WL 1900334, *at 6 (collecting cases); Barnville v. Mimosa Cafe, 2014 WL 3582878, at *2 (S.D.N.Y. July 10, 2014); De'Bey v. City of New York, 2022 WL 909790, at*8 (S.D.N.Y. Mar. 29, 2022).
Here, Plaintiff does not allege that Defendants acted outside the scope of their employment; rather, he alleges that Defendants stated to him repeatedly that their actions were based on the CLO 370.20 and the restrictions contained therein. Given that Plaintiff does not allege that Defendants acted outside of the scope of their employment, no basis exists for his training and supervision claims under New York law. Hence, I recommend that these claims be dismissed.
14. OPPORTUNITY TO AMEND
Plaintiff has had two opportunities to amend his pleadings. Nothing in the SAC suggests that Plaintiff possesses additional facts that would cure the deficiencies described in this Report and Recommendation. Therefore, I recommend that at this juncture the deficient claims be dismissed with prejudice. See, e.g., Palompelli v. Smith, 2022 WL 624421, at *6 (S.D.N.Y. Mar. 3, 2022) (dismissing Pro se plaintiff's complaint with prejudice when there was no suggestion that plaintiff possessed facts that would cure deficiencies in previous complaints) (collecting cases); Dash v. Mayers, 2020 WL 1946303, at *9 (S.D.N.Y. Apr. 23, 2020) (dismissing complaint with prejudice when plaintiff already had one opportunity to amend complaint and court liberally construed opposition in a way that effectively amounted to another pleading).
CONCLUSION
For the foregoing reasons, I recommend GRANTING the motion to dismiss (ECF No. 35, 69) as to all claims except as to: (1) the claims concerning Plaintiff's treatment at OBCC and VCBC; (2) the claims against CO Hickson, CO McNeil, CO White and ADW Carter based on violation of Plaintiff's First and Sixth Amendment rights with respect to the privileged communication with and mail from his attorney; (2) the claims against CO Lawrence, CO Oxley,
ADW Louis, and Captain Loiseau for deliberate indifference to Plaintiff's medical needs in connection with smoke inhalation; (3) the claims against Warden Dunbar, ADW Henry, CO Nzeama, CO Ritter, CO Hickson, CO McNeil, ADW Carter and Captain Law for the First Amendment retaliation; (4) the Fourteenth Amendment Due Process conditions of confinement in connection with being placed in enhanced restraints during exercise against Warden Rene, Captain Law, and CO Dychese; (5) the claims against all Defendants for violations of Plaintiff's First Amendment Free Exercise rights, RLUIPA and denial of equal protection under the Fourteenth Amendment insofar as it asserts the CLO provided for Bibles to be given to detainees to the exclusion of Quran and confiscated his prayer rug; (6) the claims for excessive use of force against Captain Palmer-Campbell, ADW Carter, Captain Blake, “Humphries #13844,” CO Castro, CO Likoua, “Smith #1753,” “Vasquez # 11590,” “Williams #3906,” Captain Arias, “CO Smith #1650,” and CO Rei; and (7) the municipal liability claim as to Defendants City of New York, Dunbar, and Rene with regard to the policy restriction on provision of religious texts other than Bibles and being placed in enhanced restraints during recreation..
NOTICE
Plaintiff shall have seventeen days, and Defendants shall have fourteen days, from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). A party may respond to another party's objections after being served with a copy. Fed.R.Civ.P. 72(b)(2).
Plaintiff shall have seventeen days to serve and file any response. Defendants shall have fourteen days to serve and file any response. Any objections and any responses to such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Paul G. Gardephe at the United States Courthouse, 40 Foley Square, New York, New York 10007, and served on the other parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Gardephe. The failure to file timely objections shall result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).