Opinion
21-CV-8629 (PAE) (RWL)
07-28-2022
MICHAEL J. LEE, Plaintiff, v. WARDEN CARTER, et al., Defendants.
REPORT AND RECOMMENDATION TO HON. PAUL A. ENGELMAYER: MOTION TO DISMISS
ROBERT W. LEHRBURGER, United States Magistrate Judge.
Plaintiff Michael J. Lee (“Lee” or “Plaintiff”), proceeding pro se, brings this lawsuit against Warden Carter, N.T.C./D.OC./V.C.B.C., Captain Guerra, N.T.C./D.OC./V.C.B.C., Captain John Doe, N.T.C./D.OC./V.C.B.C., and Captain Horton, N.T.C./D.OC./V.C.B.C., for violation of his constitutional rights under 42 U.S.C. § 1983. Plaintiff's claims stem from his conditions of confinement beginning on October 5, 2021, while he was incarcerated as a pre-trial detainee at the New York City Department of Corrections Vernon C. Bain Correctional Center (“Vernon Bain”). Plaintiff alleges he was deprived of toilet paper, soap, and toothbrushes for two to three days, and denied food and water for seven to eight hours.
Defendants have moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. Plaintiff did not file an opposition to Defendants' motion, and Defendants did not file a reply. For the reasons discussed below, I recommend that the complaint be DISMISSED for failure to prosecute, or, alternatively, that Defendants' motion be GRANTED on the merits.
BACKGROUND
A. Procedural History
On October 19, 2021, Lee filed a complaint alleging conditions-of-confinement claims in violation of his constitutional rights under Section 1983. 42 U.S.C § 1983. (Dkt. 1 (“Compl.”).) The complaint includes the names of twenty-five other detainees housed in unit #3-AA in Vernon Bain. On November 1, 2021, Chief Judge Swain severed the claims of each Vernon Bain detainee pursuant to Federal Rule of Civil Procedure 21, and Lee's case was reassigned to Judge Engelmayer. (Dkt. 43.) On March 17, 2022, Defendants filed a motion to dismiss the complaint. (Dkts. 59, 60.) On the same day, the case was referred to the undersigned for general pretrial and dispositive motions. (Dkt. 62.)
B. Factual History
The facts are drawn from the complaint. As required on a motion to dismiss, the Court accepts as true all well-pled allegations of the complaint and draws all reasonable inferences in favor of Lee, the non-moving party. Applying a liberal reading afforded to pro se plaintiffs, Lee's allegations and claims can be coherently distilled to the following.
On October 5, 2021, at approximately 11:45 a.m., Lee arrived at Vernon Bain. The unit Lee was housed in, Housing Unit 3-AA, was without toilet paper, soap, and toothbrushes for approximately two to three days. Lee contends Captain Supervisor Horton knew or should have known Lee needed those materials. When Lee tried to raise the issue with Captain Guerra, Lee claims she pressed her emergency security button which led to Lee and the other Unit 3-AA inmates being put in hand restraints. (Compl. at 5.) Lee and the others were then taken to the facility's intake holding cells where the toilet water was turned off and the Shift Facility Supervising Intake Captain, Defendant John Doe, did not provide food or water to the inmates for seven to eight hours. (Id.)
Lee alleges injuries consisting of being hungry and thirsty for an “extremely long time”; being fatigued from lack of proper nutrition; and thus being unable to perform normal daily activities and functions. Lee seeks punitive damages in the amount of $5,000, compensatory damages in the amount of $1,500, and injunctive relief.
LEGAL STANDARDS
A. Motion To Dismiss For Failure To State A Claim
Under Federal Rule of Civil Procedure 12(b)(6), a pleading may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6) (“Rule 12(b)(6)”). To survive a Rule 12(b)(6) motion, a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007). A claim is facially plausible when the factual content pleaded allows a court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009).
“Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.” Id.(quoting Twombly, 550 U.S. at 557, 127 S.Ct. at 1966). In considering a motion to dismiss, a district court “accept[s] all factual claims in the complaint as true, and draw[s] all reasonable inferences in the plaintiff's favor.” Lotes Co. v. Hon Hai Precision Industry Co., 753 F.3d 395, 403 (2d Cir. 2014). However, this tenet is “inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949. “[R]ather, the complaint's factual allegations must be enough to raise a right to relief above the speculative level ... i.e., enough to make the claim plausible.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (internal quotation marks and brackets omitted). A complaint is properly dismissed where, as a matter of law, “the allegations in [the] complaint, however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 558, 127 S.Ct at 1966.
For the purposes of considering a motion to dismiss pursuant to Rule 12(b)(6), a court generally is confined to the facts alleged in the complaint. See Cortec Industries v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991). A court may, however, consider additional materials, including documents attached to the complaint, documents incorporated into the complaint by reference, public records, and documents that the plaintiff either possessed or knew about, and relied upon, in bringing the suit. See Kleinman v. Elan Corp., 706 F.3d 145, 152 (2d Cir. 2013) (quoting ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). In that regard, if “a document relied on in the complaint contradicts allegations in the complaint, the document, not the allegations, control, and the court need not accept the allegations in the complaint as true.” Poindexter v. EMI Record Group Inc., No. 11-CV-559, 2012 WL 1027639, at *2 (S.D.N.Y. March 27, 2012) (citing Barnum v. Millbrook Care Ltd. Partnership, 850 F.Supp. 1227, 1232-33 (S.D.N.Y.1994)).
B. Legal Standards For Section 1983 Claims
To state a cause of action under § 1983, “‘a plaintiff must allege that some person acting under color of state law deprived him of a federal right.'” Ahlers v. Rabinowitz, 684 F.3d 53, 60-61 (2d Cir. 2012) (quoting Washington v. James, 782 F.2d 1134, 1138 (2d Cir. 1986)). Because § 1983 does not provide its own substantive right, plaintiffs must identify the federally protected right that was allegedly violated. See Gonzaga University v. Doe, 536 U.S. 273, 285, 122 S.Ct. 2268, 2276 (2002) (plaintiffs cannot simply claim a violation of § 1983, because § 1983 “‘by itself does not protect anyone against anything'”) (quoting Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 617, 99 S.Ct. 1905, 1916 (1979)). Accordingly, a plaintiff must show that (1) the defendant acted under color of state law and that (2) as a result of the defendant's actions, the plaintiff suffered a denial of federal statutory rights or constitutional rights or privileges. Annis v. County Of Westchester, 136 F.3d 239, 245 (2d Cir. 1998). Additionally, “in all § 1983 cases, the plaintiff must prove that the defendant's action was a proximate cause of the plaintiff's injury.” Gierlinger v. Gleason, 160 F.3d 858, 872 (2d Cir. 1998); see also White v. City Of New York, No. 16-CV-6183, 2017 WL 3575700, at *5 (S.D.N.Y. Aug. 17, 2017).
C. Review Of Pro Se Pleadings
“Pro se complaints ‘must be construed liberally and interpreted to raise the strongest arguments that they suggest.'” Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)). “[T]he Second Circuit, as a general matter, is solicitous of pro se litigants, enforcing standards of procedural leniency rather than holding them to the rigidities of federal practice.” Massie v. Metropolitan Museum of Art, 651 F.Supp.2d 88, 93 (S.D.N.Y. 2009); see also Weixel v. Board of Education, 287 F.3d 138, 147-48 (2d Cir. 2002) (reversing dismissal where district court failed to construe pro se plaintiff's complaint liberally); Ortiz v. Cornetta, 867 F.2d 146, 148 (2d Cir. 1989) (“Once a pro se litigant has done everything possible to bring his action, he should not be penalized by strict rules which might otherwise apply if he were represented by counsel”).
That said, “even pro se plaintiffs cannot withstand a motion to dismiss unless their pleadings contain factual allegations sufficient to raise a ‘right to relief above the speculative level,'” Martinez v. Ravikumar, 536 F.Supp.2d 369, 370 (S.D.N.Y. 2008) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. at 1965), and must allege “‘enough facts to state a claim to relief that is plausible on its face.'” Perry v. Mary Ann Liebert, Inc., 765 Fed.Appx. 470, 473 (2d Cir. 2019) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. at 1974).
DISCUSSION
Defendants argue that the complaint should be dismissed because Lee failed to exhaust his administrative remedies under the Prison Litigation Reform Act (the “PLRA”), and he has failed to allege facts that rise to the level of a constitutional violation. The Court agrees. Additionally, the complaint should be dismissed due to Lee's failure to prosecute his case.
A. Plaintiff's Failure To Prosecute
Although Defendants do not raise the argument, the Court first addresses Lee's failure to prosecute his case by not providing an updated address or contacting the Court in over nine months.
1. Facts Relevant To Lee's Failure To Prosecute
When Plaintiff filed this case, he was detained at Vernon Bain in the Bronx, New York. (See Compl. at 4.) Prior to November 17, 2021, Lee was transferred to Downstate Correctional Facility in Fishkill, New York. (Dkt. 49 (Change of Address Order).) Lee received mail at the Fishkill facility until January 31, 2022. (See Dkt. 55.) On March 17, 2022, Defendants filed a certificate of service declaring service of the motion to dismiss on Lee at the Fishkill address. (Dkt. 61.) On April 14, 2022, the Court entered an order directing Lee to file his opposition to Defendants' motion to dismiss by May 16, 2022, and Defendants to file their reply, if any, no later than May 31, 2022. (Dkt. 63.) The order at Dkt. 63 was mailed to Lee at the Fishkill address but was returned as not deliverable on April 27, 2022.
On April 28, 2022, the Court entered an order acknowledging Dkt. 63 as undeliverable to Lee and ordering Defendants to make a good faith effort to determine Lee's current address and to mail him the orders at Dkts. 63 and 64. (Dkt. 64.) The order further stated that by May 13, 2022 “Defendant shall file either (1) proof of service to Plaintiff's current address, or (2) a statement that despite Defendant's good faith efforts, Plaintiff's current address could not be identified. The deadline for Plaintiff to file a response to Defendant's motion to dismiss (see Dkt. 59-60) is sua sponte extended to June 13, 2022. Defendant shall file any reply by June 30, 2022.” (Dkt. 64.) On May 13, 2022, Defendant filed a certificate of service declaring that Plaintiff was served by first class mail at the Robert N. Davoren Center in East Elmhurst, New York. (Dkt. 65.) The Court entered an order on May 31, 2022, directing the Clerk of Court to mail a notice of change of address to the East Elmhurst address. (Dkt. 66.) That order, however, was returned to sender.
According to a review of the New York State Incarcerated Lookup, Lee was released from jail on March 15, 2022. Lee has not filed anything with the Court since October 29, 2021. (Dkt. 42.)
https://nysdoccslookup.doccs.ny.gov/ (last accessed July 18, 2022.)
2. Dismissal Is Warranted For Lee's Failure To Prosecute
Federal Rule of Civil Procedure 41(b) gives district courts the power to dismiss a case if “the plaintiff fails to prosecute” the case, “to comply with [the Federal Rules of Civil Procedure],” or to comply with court orders. Fed.R.Civ.P. 41(b). Rule 41(b) does not define “failure to prosecute,” but “[i]t can evidence itself either in an action lying dormant with no significant activity to move it or in a pattern of dilatory tactics.” Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d Cir. 1982). The “primary rationale” for dismissal pursuant to Rule 41(b) is “the failure of plaintiff in his duty to process his case diligently.” Id. at 43.
The Second Circuit has articulated a five-factor framework for determining whether a court should dismiss a case under Fed.R.Civ.P. 41(b). This test requires the court to consider: “[(i)] the duration of the plaintiff's failure to comply; [(ii)] whether the plaintiff was on notice that failure to comply would result in dismissal; [(iii)] whether the defendants are likely to be prejudiced by further delay in the proceedings; [(iv)] a balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard; and [(v)] whether the judge has adequately considered a sanction less drastic than dismissal.” Spencer v. Doe, 139 F.3d 107, 112-13 (2d Cir. 1998); see also Ampudia v. Lloyd, 531 Fed.Appx. 32, 34 (2d Cir. 2013); Shannon v. General Electric Co., 186 F.3d 186, 193-94 (2d Cir. 1999). “No one factor is dispositive,” and the determination is based on the “record as a whole.” Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir. 2009) (quoting United States ex rel. Drake v. Norden Systems, Inc., 375 F.3d 248, 254 (2d Cir. 2004)). The decision to dismiss for failure to prosecute is committed to the district court's discretion. Ampudia, 531 Fed.Appx. at 33-34 (citing LeSane v. Hall's Security Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001)).
Additionally, “dismissal for failure to prosecute is generally proper where the plaintiff has failed to maintain a current address with the court.” Salem v. City of New York, No. 16-CV-7562, 2017 WL 6021646, at *2 (S.D.N.Y. Dec. 4, 2017) (dismissing case brought by pro se incarcerated plaintiff who had failed to update address); see also Boone v. Department of Corrections, No. 20-CV-9409, 2021 WL 5761904, at *2 (S.D.N.Y. Dec. 3, 2021) (concluding dismissal was warranted where plaintiff had nearly five months to notify the Court of his release and any new address but had not done so); Laney v. Ramirez, No. 10-CV-9063, 2011 WL 6594491, at *1 (S.D.N.Y. Dec. 22, 2011) (a “case cannot proceed without a current address for the plaintiff and the failure to maintain such an address with the Court is a ground for failure to prosecute”).
Lee's multiple failures to update the Court with his new address have delayed the case and unduly burdened the Defendants. Despite being transferred to a different facility prior to being released from jail on March 15, 2022, Lee did not apprise the Court or Defendants of any new address to which he had been transferred. Nor did Lee provide any new address after having been released. The last known date that Lee received mail was January 31, 2022. Since then, each attempt at contacting him has failed, and each mailing has been returned as not deliverable. Lee bears responsibility for the resulting delay in moving his case forward. See Robinson v. United States, No. 03-CV-1001, 2005 WL 2234051, at *2 (S.D.N.Y. Sept. 8, 2005) (“Only the Plaintiff can be responsible for notifying the court and the Defendant of his updated address, and Plaintiff's failure to do so has made it impossible to provide him any notice.”)
All relevant factors warrant dismissal for failure to prosecute. The duration of Lee's failure to provide any notice of his new address or to advance his case is significant. Lee has not filed anything or communicated with the Court in over nine months. (See Dkt. 42.) Courts have found far shorter periods to be sufficient grounds to dismiss pursuant to Rule 41(b). See, e.g., Singelton v. City of New York, No. 14-CV-9355, 2015 WL 9581781, at *2 (S.D.N.Y. Dec. 30, 2015) (two months); Varney v. Batman, No. 08-cv-9702, 2012 WL 1080137, at *1 (S.D.N.Y. Mar. 30, 2012) (three months).
As for the other factors, Lee was notified from the outset that failure to update his address could result in dismissal of his case. (See Dkt. 48 at 2 (information package with instructions for updating address and warning that “Your case could be dismissed if you do not notify the court of an address change”).) Lee's failure to prosecute has prejudiced and will continue to prejudice Defendants by unfairly burdening them with both the cloud of pending litigation and inability to resolve the case indefinitely. To the extent failure to provide an updated address were the only ground for dismissal (as discussed below, it is not), dismissal would be without prejudice. The Southern District of New York is one of the busiest districts in the nation. Its resources are best devoted to litigants who maintain an interest in prosecuting their cases, particularly ones, unlike the instant case, that have potential merit. “Finally, because the plaintiff has failed to file a current address with the Court, there is no lesser sanction which could be effective.” Laney, 2011 WL 6594491, at *1.
Although dismissal for failure to prosecute is warranted, Lee's case also should be dismissed because it has no merit for the reasons next discussed.
B. Failure To Exhaust Administrative Remedies
Defendants argue Lee's complaint should be dismissed because it is apparent from the face of the complaint that he failed to exhaust his administrative remedies as provided by the PLRA. The Court agrees.
The PLRA states “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Lee's suit falls within the purview of this provision as the Supreme Court has established “[t]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes.” Porter v. Nussle, 534 U.S. 516, 532122 S.Ct. 983, 992 (2002). Lee's complaint alleging substandard living conditions while incarcerated at Vernon Bain clearly constitutes a “suit about prison life.” See Leak v. Schriro, No. 11-CV-8023, 2013 WL 1234945, at *2 (S.D.N.Y. Feb. 20, 2013), R. & R. adopted, 2013 WL 1248620 (S.D.N.Y. Mar. 27, 2013) (“suits brought by inmates alleging inadequate living conditions are within the scope of the PLRA”); Francis v. Department of Corrections, 12-CV-0946, 2012 WL 4849149, at *2 (S.D.N.Y. July 17, 2012) (inmate bringing claim regarding deficient beds fell within scope of PLRA).
“Although a plaintiff need not specifically plead exhaustion to survive a motion to dismiss, a complaint may be dismissed for failure to exhaust administrative remedies if the failure is clear from the face of the complaint.” Gregory v. Department of Correction of New York City, No. 13-CV-4289, 2014 WL 3876612, at *2 (S.D.N.Y. July 16, 2014) (citing Roland v. Smith, 907 F.Supp.2d 385, 388 (S.D.N.Y. 2012)); see also Hickman v. City of New York, No. 20-CV-4699, 2021 WL 3604786, at *2 (S.D.N.Y. Aug. 12, 2021) (“courts within this District routinely grant motions to dismiss where a plaintiff's nonexhaustion is clear from the face of the complaint.”) (collecting cases).
It is evident from the face of Lee's complaint that he failed to exhaust his administrative remedies. At New York City Department of Correction facilities, such as Vernon Bain, grievance procedures are governed by the Inmate Grievance Procedures (“IGP”). See New York City Department Of Correction Directive “Inmate Grievance Procedures” (No. 3376R-A, effective Dec. 10, 2018) [hereinafter “IGP”]; Massey v. City of New York, No. 20-CV-5665, 2021 WL 4943564, at *6 (S.D.N.Y. Aug. 30, 2021), R. & R. adopted, 2021 WL 4459459 (S.D.N.Y. Sept. 29, 2021), aff'd, 2021 WL 5234977 (S.D.N.Y. Nov. 9, 2021) (“Pursuant to Directive 3376R-A, NYC DOC ‘maintains a robust administrative grievance procedure - the Inmate Grievance and Request Program (the “IGRP”) - for inmates [and detainees] at all of its facilities'”) (quoting Leneau v. City of New York, No. 16-CV-0893, 2018 WL 583120, at *2 (S.D.N.Y. Jan. 26, 2018)); McKinney v. City of New York, No. 19-CV-05320, 2020 WL 5775664, at *3 (S.D.N.Y. July 23, 2020), R. & R. adopted, 2020 WL 5775194 (S.D.N.Y. Sept. 28, 2020) (“New York State's grievance procedure requires that a prisoner first file a grievance with the Inmate Grievance Resolution Committee (IGRC)”).
https://www1.nyc.gov/assets/doc/downloads/directives/Directive3376R-A.pdf (last accessed July 19, 2022).
The IGP provides “inmates with the opportunity to file issues regarding their confinement through a structured, non-adversarial, and expedient process. Any inmate who is directly and personally affected by an issue, condition, practice, service or lack of an accommodation with regard to any issue that may arise in connection with their incarceration ... may file a complaint (grievance).” IGP § I. The IGP mandates a multistep grievance process that inmates must follow to exhaust their administrative remedies. An inmate must first either properly sign and submit a Form 7101R or call 311 to file a complaint. See IGP §§ V(F), (H). Within seven business days, the Grievance Coordinator will review the Form 7101R or the 311 complaint, assess the submission, and determine whether it should be dismissed and closed, referred to a different entity, or investigated further. IGP § VI(A)(1). The Grievance Coordinator will then enter the proposed resolution of the grievance on a Form 7102R and shall meet with the inmate to review the proposed resolution. Id. If the inmate is not satisfied with the proposed resolution of the grievance, he can then appeal to the Commanding Officer. IGP § VII. The inmate then has the option to appeal the Commanding Officer's decision to the Division Chief. IGP § VIII. Lastly, if the inmate is dissatisfied with the decision of the Division Chief, he may appeal to the Central Office Review Committee (“CORC”). IGP § IX. An “inmate must use the grievance process to obtain a final response for the Department regarding any grievance unless there is an identified alternative process for resolving a particular issue”. IGP § V(K).
“[I]t is ... well settled that ‘proper exhaustion' requires an inmate to not only file an initial grievance, but also to exhaust his claims through each level of the specified grievance process.” Massey, 2021 WL 4943564, at *7. The face of the complaint shows that Lee did not do so. First, the complaint makes no reference to any filing of a Form 7101R, a 311 call, or official grievance complaint made or filed by Lee. Rather, the complaint merely states that the issue was brought up to Captain Guerra. (Compl. at 5.) Merely “bringing up” an issue to a staff member does not satisfy even the first step required by the IGP.
Second, there were only two days between the incident occurring on October 5, 2021, and Lee signing his complaint on October 7, 2021. (Compl. at 4, 7.) Given that the DOC grievance process requires multiple steps, has allocated time periods for each step, and three different appeals before it is considered final, it is virtually impossible that Lee could have completed these steps and received a final decision in two days. Courts in this District have repeatedly dismissed inmate's complaints demonstrating much longer periods between incident and complaint that lack any reference to following the IGP process. See Rivera v. Royce, No. 19-CV-10425, 2021 WL 2413396, at *6 (S.D.N.Y. June 11, 2021) (finding that a period of sixteen days between an attack and signing of the initial complaint “preclud[ed] the possibility that plaintiff could have exhausted his administrative remedies before filing this action; as a matter of fact and law, it simply would not have been possible for Plaintiff to do so”); Lopez v. Cipolini, 136 F.Supp.3d 570, 581 (S.D.N.Y. 2015) (stating it was clear from her filings that plaintiff failed to exhaust her administrative remedies before filing suit in federal court because the complaint was filed only ten days after the events giving rise to the suit); Price v. City of New York, No. 11-CV-6170, 2012 WL 3798227, at *3 (S.D.N.Y. Aug. 30, 2012) (dismissing complaint because it was apparent from the face of the complaint that plaintiff had failed to exhaust his administrative remedies as only twenty-one days had passed between the alleged incident and the date of the complaint). Accordingly, the complaint should be dismissed for failure to exhaust administrative remedies under the PLRA.
C. No Constitutional Violation
Defendants next argue Lee's complaint fails to allege facts that rise to the level of a constitutional violation. The Court again agrees.
Because Lee was a pretrial detainee, his “claims of unconstitutional conditions of confinement are governed by the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishments Clause of the Eight Amendment.” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017); Benjamin v. Fraser, 343 F.3d 35, 49 (2d Cir. 2003), overruled on other grounds by Caiozzo v. Koreman, 581 F.3d 63 (2d Cir. 2009) (stating pretrial detainees challenge to environmental conditions of their confinement are properly reviewed under the Fourteenth Amendment because they have not been adjudged guilty of any crime). A pretrial detainee's allegations of deliberate indifference to unconstitutional conditions of confinement must satisfy a two-prong test comprised of both objective and subjective standards.
“[T]o establish an objective deprivation, the inmate must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health. ... There is no static test to determine whether a deprivation is sufficiently serious; instead, the conditions themselves must be evaluated in light of contemporary standards of decency.” Molina v. County of Westchester, No. 16-CV-3421, 2017 WL 1609021, at *2 (S.D.N.Y. Apr. 28, 2017) (internal citations and quotation marks omitted). To satisfy the second, subjective prong, “[a] pretrial detainee must prove that the defendant-official acted intentionally . or recklessly failed to act with reasonable care to mitigate the risk . even though the defendant-official knew, or should have known, of the risk of harm.” Id. at *3 (internal quotations marks omitted); see also Darnell, 849 F.3d at 35 (same and referring to this subjective prong as the “mens rea prong”).
To satisfy the objective prong, the conditions must have “pos[ed] an unreasonable risk of serious damage to [Lee's] health,” Reid v. City of New York, No. 20-CV-644, 2022 WL 1164524, at *6 (S.D.N.Y. Apr. 20, 2022), R. & R. adopted, 2022 WL 2340450 (S.D.N.Y. June 29, 2022), or have been a deprivation of the “minimal civilized measure of life's necessities.” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399 (1981). Ultimately, “to establish the objective element ... a prisoner must prove that the conditions of his confinement violate contemporary standards of decency.” Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002). Here, Lee claims he was deprived of toilet paper, soap and toothbrushes for approximately two to three days and of water or food for approximately seven to eight hours. (Compl. at 4, 5.) Those temporary deprivations do not amount to a denial of “the minimal civilized measure of life's necessities” and therefore do not give rise to a constitutional violation.
The “objective prong” analysis is the same under both the Eighth and Fourteenth Amendments. Reid, 2022 WL 1164524, at *6.
As for Lee's being without toiletries for a few days, “courts [in this Circuit] are extremely reluctant to find constitutional violations based on temporary deprivations of personal hygiene and grooming items.” Dillon v. City of New York, No. 12-CV-7113, 2013 WL 6978959, at *3 (S.D.N.Y. Nov. 18, 2013). And the two to three-day period that Lee says he was without toiletries is shorter than other periods that courts have found insufficient to rise to a constitutional level. See, e.g., Beauvoir v. Falco, 345 F.Supp.3d 350, 373-74 (S.D.N.Y. 2018) (finding deprivation of toiletries, such as a toothbrush and toilet paper, for four to five days did not satisfy the objective test); Trammell v. Keane, 338 F.3d 155, 165 (2d Cir. 2003) (deprivation of toiletries, i.e. soap, toothpaste, and toothbrush, for seventeen days did not rise to the level a constitutional violation).
Similarly, Lee was without water and food for a brief period - seven to eight hours - that falls short of a constitutional violation. While “the precise length of a ‘significant deprivation' is undefined,” Simmons v. Kelly, No. 06-CV-6183, 2009 WL 857410, at *8 (S.D.N.Y. Mar. 31, 2009), courts consistently hold that being without food and water for seven or eight hours does not constitute a due process violation. See, e.g., Porter v. Bunch, No. 16-CV-5935, 2019 WL 1428431, at *6 (S.D.N.Y. Mar. 29, 2019) (stating Plaintiff being without water for eight hours is not a clear deprivation of “the minimal civilized measure of life's necessities”); Livigni v. Ortega, No. 15-CV-9454, 2016 WL 6143351, at *3 (S.D.N.Y. Oct. 19, 2016) (plaintiff being locked in a cold transport bus for seven hours without access to water did not objectively “pose an unreasonable risk of serious damage to his health”); Webster v. City of New York, 333 F.Supp.2d 184, 200 (S.D.N.Y. 2004) (holding failure to provide food and water to pretrial detainees for a few hours did not rise to the level of a due process violation).
Having failed to satisfy even the objective prong, Lee has failed to state a claim for unconstitutional conditions of confinement.
CONCLUSION
For the reasons discussed above, I recommend that the complaint be DISMISSED for failure to prosecute, or, alternatively, that Defendants' motion be GRANTED.
DEADLINE TO OBJECT AND PRESERVE APPEAL
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules Of Civil Procedure, the parties have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of Court, with extra copies delivered to the Chambers of the Honorable Paul A. Engelmayer, United States Courthouse, 40 Foley Street, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, New York, New York 1007. Failure to file timely objections will result in waiver of objections and preclude appellate review.