Opinion
19-CV-2336 (JPC) (KHP)
01-12-2022
SHAQUILLE DINKINS, Plaintiff, v. GUSTAVE, et al., Defendants.
THE HONORABLE JOHN P. CRONAN, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
Pro se Plaintiff Shaquille Dinkins brings this action under 42 U.S.C. § 1983 against Defendants the City of New York, New York City Department of Correction (“DOC”) Captain Gustave (“Gustave”), Captain Mitchell (“Mitchell”), Correction Officer (“CO”) Humphries (“Humphries”), CO Young (“Young”), and CO Mayo (“Mayo”), arising from an alleged improperly conducted strip search and subsequent use of force at the George R. Vierno Center (“GRVC”) on Rikers Island that occurred on March 1, 2019 while Plaintiff was a pretrial detainee. Read liberally and in a light most favorable to Plaintiff, Plaintiff's complaint asserts that his rights under the Fourteenth Amendment to the U.S. Constitution were violated because: (1) during the course of an institutional strip search, Young grabbed his naked penis for a few seconds while pulling up Plaintiff's boxer shorts; (2) Mayo used excessive force by pushing him against the wall and handcuffing him after he refused to comply with the strip search; (3) Humphries and Young used excessive force by punching him in the back after he was handcuffed by Mayo; and (4) Mayo was deliberately indifferent to Plaintiff's medical needs and his conditions of confinement by virtue of the fact that Plaintiff was forced to wait approximately five hours in a cell without a chair, bedspring or mattress after stating that he had asthma, chest pains and wrist and back pain before being seen by the doctor at the jail. Additionally, the Court construes the Complaint as stating claims for failure to intervene as against Mitchell and Gustave during the search and excessive force incidents.
Plaintiff also brought claims against the New York City Department of Correction, but on April 16, 2019, the Honorable George B. Daniels dismissed that defendant. (ECF No. 6.)
Currently before the Court is Defendants' motion for summary judgment in which Defendants seek the dismissal of all claims, or in the alternative raise the defense of qualified immunity. (ECF Nos. 81-85.) Defendants assert that the Defendant the City of New York is also entitled to summary judgment because Plaintiff has not asserted any claim whatsoever against the City. (ECF No. 85. P. 10.) The Defendants do not construe Plaintiff's deposition or complaint as raising a failure to intervene claim in their motion. Instead, Defendants concluded their motion by taking the position that the Complaint should simply be dismissed against Gustave and Mitchell. In support of their motion, Defendants rely principally on excerpts of Plaintiff's deposition testimony and medical records pertaining to Plaintiff's injuries. For the reasons that follow, I respectfully recommend that Defendants' motion be granted in part and denied in part.
All facts are undisputed unless otherwise noted. All rational inferences are drawn in Plaintiff's favor consistent with the requirements of Rule 56. Defendants initially submitted excerpts of Plaintiff's deposition transcript. (ECF No. 82-2, Ex. B.) However, the Court perceived gaps in the testimony provided and requested the complete deposition transcript, which the court reviewed in its entirety. (ECF No. 94.)
On March 1, 2019, Plaintiff was incarcerated as a pre-trial detainee in the GRVC unit on Rikers Island. (Defs.' Local R. 56.1 Statement ¶ 1, ECF No. 83 (hereinafter “R. 56.1 Statement”).) At approximately 9:00 a.m. on March 1, 2019, an institutional search was conducted in Plaintiff's housing area by several DOC personnel, including Defendant Captain Gustave. (Id. ¶ 2.) During the institutional search, Plaintiff refused to be strip searched by Captain Gustave due to a belief that Captain Gustave was a homosexual. (Id. ¶ 4; Pl. Dep. at ECF No. 94-1 at pps. 29, 70, 73.) When Plaintiff refused to be searched in his cell, he was warned that his refusal required removal to segregation intake for a strip search to be conducted outside of Gustave's presence. (Id. ¶ 5; Pl. Dep. at ECF No. 94-1 at p. 76.) Plaintiff acknowledged this and thereafter was placed in flex handcuffs and removed to a three-point search pen for purposes of conducting the search. (Id. ¶ 7; Pl. Dep. at ECF No. 94-1 at pps. 76-77.)
Once Plaintiff was in the pen in segregation intake, Defendants Humphries and Young entered the pen and held Plaintiff in place while Young began the search. Captain Mitchell was outside of the pen but had a view into the pen. Captain Gustave left the area at that point. (Id. ¶ 8.)
Young began the search by first removing Plaintiff's shoes and then pulling down Plaintiff's sweatpants, thermal bottoms, and boxers. (Id. ¶ 8; Pl. Dep. at ECF No. 94-1 at pps. 89-90.) Plaintiff's shoes, sweatpants and thermal bottoms were not the authorized prison uniform and thus were taken away. Young then began to pull Plaintiff's boxers back up. Plaintiff alleges that Young grabbed Plaintiff's genitals with his left hand, grabbing the shaft of his penis for a couple seconds, while pulling Plaintiff's boxers up. (Id. ¶ 9; Pl. Dep. at ECF No. 94-1 at pps. 89-91.) Based on the description provided by Plaintiff in his deposition, the Court infers that the touching was of Plaintiff's naked penis because he testified in his deposition that his thermal bottoms and sweatpants were off and that Young grabbed his penis before the boxers were fully pulled up. (Pl. Dep. at ECF No. 94-1 at pps. 90-95.) Plaintiff became irate at this physical contact, asked Young “what you doing, ” and began screaming, asking for Defendant Captain Mitchell to enter the search pen. (Id. ¶ 10; Pl. Dep. at ECF No. 94-1 at p. 97.)
At Plaintiff's request, Captain Mitchell entered the search pen. Young informed Mitchell that he did not grab Plaintiff's penis. Captain Mitchell instructed Young to exit the search pen. (Id. ¶¶ 11-12; Pl. Dep. at ECF No. 94-1 at pps. 99-100.) Captain Mitchell then instructed another officer, Mayo, to enter the pen and remove Plaintiff's flex handcuffs so the strip search could resume. (Pl. Dep. at ECF No. 94-1 at p. 106.) During this time, Captain Mitchell remained on the outside of the pen, but by the door. After Mayo removed Plaintiff's flex handcuffs, Officer Humphries left the pen for Mayo to resume the search. (Pl. Dep. at ECF No. 94-1 at p. 108.)
As the search resumed, Mayo told the Plaintiff to take off one item of clothing at a time from his upper body. (ECF No. 94-1 at p. 107.) Plaintiff took off his shirt and other items. These items also were not the authorized institutional clothing and were taken away. Mayo gave Plaintiff tan institutional pants to put on over his boxers. (Pl. Dep. at ECF No. 94-1 at p. 111.) The remainder of the strip search, which involves the prisoner spreading his buttocks and squatting and coughing, had not yet been completed at that point. (Pl. Dep. at ECF No. 94-1 at p. 101, describing what takes place during an institutional strip search).
Then, Plaintiff heard Young, from outside of the pen, threatening to do something physical to Plaintiff. (Id. ¶ 16; Pl. Dep. at ECF No. 94-1 at pps. 112-113.) However, Plaintiff admitted in his deposition that he did not hear specifically what Young said and that he was not certain whether Young was making the threat to Plaintiff or someone else, but assumed the threat was to him based on what had just transpired with the strip search. (Id.) Upon hearing Young's threats, Plaintiff began yelling and refused to continue with the strip search and said he was ready to fight Young. (Pl. Dep. at ECF No. 94-1 at p. 110.) At this time, Captain Mitchell and Mayo told Plaintiff to relax and finish with the search. (Pl. Dep. at ECF No. 94-1 at pps. 113, 115.) Plaintiff testified during his deposition that he [Plaintiff]
just kept on being loud and belligerent. I was mad. I was already mad that they violated me. Then, I was mad because I assumed he was talking to me about doing bodily harm. I just kept on saying he could come in the pen. We can get it over with, let him come in the pen. I just kept being belligerent. He didn't want to hear nothing.(Pl. Dep. at ECF No. 94-1 at p. 115.) The Plaintiff testified that the officers asked Plaintiff to finish getting dressed so he could go in another nearby holding cell, but Plaintiff refused. (Pl. Dep. at ECF No. 94-1 at p. 116.) At that point, while Plaintiff was yelling and refusing to comply with directions, Mayo pushed Plaintiff against the wall and grabbed Plaintiff's wrist and biceps so he could handcuff Plaintiff, this time with traditional metal handcuffs. (Id. ¶ 18; Pl. Dep. at ECF No. 94-1 at p. 118.) Plaintiff resisted, moving his upper body and fighting against Mayo's hold, causing the handcuffs to tighten. (Id. ¶ 19; Pl. Dep. at ECF No. 94-1 at p. 119.) Captain Mitchell turned on his body cam to film the incident. (Pl. Dep. at ECF No. 94-1 at p. 116.) Young and Humphries entered the pen to assist Mayo and punched Plaintiff in the back, telling Plaintiff to stop fighting and resisting. (Id. at p. 121.) Plaintiff testified that officers Young and/or Humphries punched him four or five times during the scuffle. (Id. at p. 123.) He admitted that he was trying to resist and fight the officers off even after the handcuffs were on him. (Id. at p. 123.) Plaintiff further admitted during his deposition that once he stopped trying to fight the officers, no further punches were thrown. (Id. at p. 124.)
After the officers gained control, the search was never completed, and Mayo removed Plaintiff from the search pen. Captain Mitchell ordered another unnamed officer to escort Plaintiff to a different empty cell in segregation intake. (ECF No. 83. ¶¶ 22-23; Pl. Dep. at ECF No. 94-1 at pps. 125-126.) Plaintiff said he complained to this officer, although he doesn't remember who it was, that he had a sore wrist and arms. (Pl. Dep. at ECF No. 94-1 at p. 127.) Plaintiff was put in a segregation intake cell in handcuffs. About 30 minutes later, an officer that Plaintiff could not identify came and took the handcuffs off. Plaintiff asked this unidentified officer when he could go to the medical unit, but the person did not respond. (Pl. Dep. at 94-1 at pps. 130-131.) Sometime later, Plaintiff complained to Mayo that he was experiencing pain in his chest, wrist and back, stated that he was asthmatic and that possibly an attack was coming on, and expressed a desire to go to the medical unit. (ECF No. 83. ¶ 25; Pl. Dep. at ECF No. 94-1 at p. 132.) Mayo told Plaintiff they were going to get him a shirt and footwear so he could be taken to the medical unit and later returned with those items. At approximately 2:20 p.m., Plaintiff was taken to the medical clinic at GRVC, evaluated by Dr. Pravin Ranjan, MD, and diagnosed with abrasions on both wrists and an abrasion on the left side of his lower back and was provided with pain medication and a muscle relaxant. (ECF No. 83 ¶ 26; Pl. Dep. at ECF No. 94-1 at pps. 136-137; DOC Injury to Inmate Report No. 19/2346.) Plaintiff was in the cell for approximately five hours before seeing the doctor. (Pl. Dep. at ECF No. 94-1 at p. 131.) After receiving treatment, he returned to his housing unit. On March 5, 2019, Plaintiff underwent an x-ray on his back which revealed no acute stress or significant injury. Plaintiff was diagnosed with a backache and prescribed physical therapy. (ECF No. 83. ¶ 28; Pl. Dep at ECF No. 94-1 at p. 146; DOC Injury to Inmate Report No. 19/2346.)
Plaintiff apparently was not wearing a shirt when escorted to this pen. Additionally, he admitted that he was wearing contraband footwear that was removed and taken from him. (Pl. Dep. at ECF No. 94-1 at p. 87.)
DOC undertook two investigations into the occurrences described above. The investigations resulted in a finding of no wrongdoing by the officers. (ECF No. 82-3.) Video footage from various surveillance camera angles was reviewed as part of the investigation. The video footage was produced to Plaintiff, though Plaintiff states he did not receive all of the relevant video in discovery (ECF No. 87), and no video footage has been submitted in connection with the instant motion.
STANDARDS OF REVIEW
A. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the Court finds that no rational jury could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
“The moving party bears the burden of showing the absence of a genuine dispute as to any material fact . . .” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir. 2014). “Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial.” Johnson v. Xerox Corp., 838 F.Supp.2d 99, 103 (W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Once the moving party has met its burden, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts, and may not rely on conclusory allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011)). Specifically, the non-moving party “must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown, 654 F.3d at 358. Indeed, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
Additionally, “[i]t is well-settled that Pro se litigants generally are entitled to a liberal construction of their pleadings, which should be read to raise the strongest arguments that they suggest.” Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (internal quotations and citation omitted); see also Hemphill v. New York, 380 F.3d 680, 687 (2d Cir. 2004) (“It is well- established that ‘when [a] plaintiff proceeds Pro se . . . a court is obliged to construe his pleadings liberally, particularly when they allege civil rights violations.'” (alteration in original) (internal citation omitted)), overruled on other grounds by Ross v. Blake, 578 U.S. 632 (2016). Moreover, “a Pro se litigant should be afforded every reasonable opportunity to demonstrate that he has a valid claim.” Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984).
This District's Local Rule of Civil Procedure 56(a) requires the submission of a statement of undisputed facts in support of a summary judgment motion and requires the opposing party to provide a response. Pursuant to Local Rule of Civil Procedure 56(a)(2), “[e]ach numbered paragraph in the moving party's statement of material facts may be deemed admitted for purposes of the motion unless it is specifically controverted by a correspondingly numbered paragraph in the opposing statement.” Gubitosi v. Kapica, 154 F.3d 30, 31 n.1 (2d Cir. 1998) (because plaintiff failed to respond to defendant's statement of material facts submitted in accordance with local rules, “the material facts contained in his statement are deemed to be admitted as a matter of law”).
As a preliminary matter, the Court faces the question of whether, for purposes of this motion, it should deem all facts set forth in Defendants' Rule 56.1 Statement to be admitted because, despite having received notice of the requirements of the local rule, Plaintiff failed to adhere to those requirements in his opposing Statement. (See Def. Opposition at ECF No. 87.) On this, Defendants argue that because Plaintiff failed to comply with the rule and did not dispute any material facts, they should be deemed admitted for the purposes of this motion. (ECF No. 88, p. 3.)
Despite Plaintiff's failings in this regard, Plaintiff's written opposition to the motion, while imperfect, does highlight for the Court those facts that Plaintiff believes to be in dispute. (ECF No. 87.) Given that Plaintiff is proceeding pro se, that it is the movant's burden to show there is no genuine issue of material fact before summary judgment can be granted, and that, in this case, it is not difficult for the Court-or for Defendants-to determine where any disputed factual issues lie, the Court declines to accept blindly as “admitted” all factual averments made by Defendants. See Holtz v. Rockefeller & Co., Inc., 258 F.3d 63, 73 (2d Cir. 2001) (court “has broad discretion to determine whether to overlook a party's failure to comply with local court rules”) (citations omitted); see also, e.g., Melendez v. Devry Corp., 2005 WL 3184277, **1-2 (E.D.N.Y. Nov. 29, 2005) (declining to deem admitted all facts set forth in defendant's statement, where plaintiff was proceeding pro se). Rather, consistent with what other courts have done, this Court considers the totality of the parties' submissions in identifying disputed material facts, and construes those disputed facts in Plaintiff's favor as is appropriate on summary judgment. See Hamilton v. Bally of Switz., 2005 WL 1162450, *3-4 (S.D.N.Y. May 12, 2005); see also Melendez, 2005 WL 3184277, at *2 (examining “the entire record before the court, glean[ing] the material facts therefrom, and decid[ing] the motion based on those facts” despite plaintiff's failure to comply with Local Rule 56.1(c)).
B. Section 1983 Actions
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 Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). To state a claim under § 1983, a plaintiff must allege “(1) the challenged conduct was attributable to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed by the U.S. Constitution.” Castilla v. City of New York, 2013 WL 1803896, at *2 (S.D.N.Y. Apr. 25, 2013); see Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010). The conduct in this case implicates Plaintiff's rights under the Fourteenth Amendment because Plaintiff was a pretrial detainee at the time of the incidents. Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017).
DISCUSSION
As noted above, the complaint can be construed as asserting the following causes of action: (1) sexual abuse by Young; (2) excessive force by Mayo, Young and Humphries; (3) deliberate indifference to Plaintiff's medical needs and his conditions of confinement by Mayo; and (4) failure to intervene by Captains Mitchell and Gustave. These claims are addressed in turn below.
1. Unlawful Sexual Abuse During Search
Plaintiff does not challenge the prison officials' right to have conducted a strip search on the day in question, rather Plaintiff challenges the manner in which the strip search was conducted, including Defendant Young's alleged grab of Plaintiff's penis. It is well established that prison officials may devise search protocols to eliminate or mitigate risks in prison and that such protocols can include strip searches to discover contraband such as drugs and weapons that can be secreted on an inmate's body. See Florence v. Bd. Of Chosen Freeholders of County of Burlington, 566 U.S. 318 (2012). In general, strip searches are ones involving the inmate being required to remove his clothes, lift his genitals for visual inspection, spread his buttocks or genital area for visual inspection and cough in a squatting position. Id. Although visually intrusive, they do not involve touching of an inmate's private parts. Id. Pat frisk searches, in contrast, typically involve searches over clothes where an officer may have momentary contact with a private part through clothing. See, e.g., Hayes v. Dahlke, 976 F.3d 259 (2d Cir. 2020) (describing a pat frisk as one that occurs over clothing).
Whether physical touching of a prisoner during the course of a search can constitute a violation of the prisoner's Constitutional rights has been addressed by the Second Circuit in the case of convicted inmates, not pretrial detainees. In Boddie v. Schnieder, the Second Circuit concluded that such touching can constitute sexual abuse of a prisoner by a corrections officer and may in some circumstances violate the prisoner's right under the Eighth Amendment to the Constitution to be free from cruel and unusual punishment. 105 F.3d 857, 860-61 (2d Cir. 1997). It held that a prison official violates a prisoner's Eighth Amendment rights when he subjects the inmate to punishment that is (1) “objectively, sufficiently serious” based on contemporary standards and in so doing (2) acted with a “sufficiently culpable state of mind to violate the prisoner's constitutional rights.” Boddie, 105 F.3d at 861 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994); Rhodes v. Chapman, 452 U.S. 337, 347 (1981); and Hudson v. McMillian, 503 U.S. 1, 8 (1992)). In Boddie, a female corrections officer was accused of making a pass at the prisoner, squeezing his hand, touching his penis, calling him a “sexy black devil, ” and bumping into him “with her whole body vagina against [his] penis.” Id. at 859-60. The Second Circuit held that this conduct was not “cumulatively egregious” enough under the objective prong of the test to reach constitutional dimensions. Id. at 861.
More recently, the Second Circuit stated that under today's standards, Boddie would have come out differently. Crawford v. Cuomo, 796 F.3d 252, 259, 261 (2d Cir. 2015). In Crawford, the Circuit clarified that when evaluating whether sexual conduct is objectively sufficiently serious to give rise to a constitutional claim, courts should look to contemporary standards of decency. Id. at 260 (stating the standard set forth in Boddie must be applied in the context of contemporary societal mores). As restated in Crawford, an evaluation of the objective prong of the Boddie test is “context specific.” Id. at 256 (quoting Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013)). Although recognizing that “not ‘every malevolent touch by a prison guard gives rise to a federal cause of action, '” conduct that is “repugnant” based on “evolving standards of decency, ” satisfies the objective prong of the test. Id. (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)). A single incident of sexual abuse, if sufficiently severe or serious, can meet the standard; recurrent conduct bears on severity of the conduct. Id. at 257. Penetration, physical injury or direct contact with uncovered genitalia also is not necessarily required to meet the standard. Id. However, to be sure, a prison officer's intentional contact with an inmate's genitalia absent a penological purpose and that is taken to humiliate the inmate or gratify the officer's sexual desire will meet the standard. Id. The focus of the inquiry must be whether the sexual contact is “incidental to legitimate official duties.” Id. “[N]o amount of gratuitous or sexually-motivated fondling of an inmate's genitalia-even if limited in duration or conducted through the inmate's clothes--is permitted.” Id. at 258. Because the prison official in Crawford “squeezed” and “fondled” Crawford's penis and “roamed” his hands down Crawford's thigh, the Court found that the touching was not incident to any legitimate duties. Id. There also were facts in Crawford that suggested the official undertook the search to arouse himself or humiliate Crawford. Id.; See also Hayes, 976 F.3d at 275 (emphasizing that the principle inquiry in determining whether there is an Eighth Amendment violation “is whether the contact is incidental to legitimate official duties, such as a justifiable pat frisk or strip search, or by contrast whether it is undertaken to arouse or gratify the officer or humiliate the inmate”).
Whether the standard for evaluating a claim of sexual abuse by a pretrial detainee is the same as for that of a convicted inmate, that is, whether the standard under the Fourteenth Amendment has both objective and subjective mens rea elements, is unclear. See Gilliam v. Black, 2019 WL 3716545, at *10 (D. Conn. Aug. 7, 2019); Lewis v. Huebner, 2020 WL 1244254, at *9 (S.D.N.Y. Mar. 16, 2020). In the context of a pretrial detainee's claim of deliberate indifference to conditions of confinement complaining about inadequate nutrition and unsanitary conditions, the Second Circuit recently held that there were both objective and subjective mens rea elements to a claim. Darnell, 849 F.3d at 35. But, in the context of a pretrial detainee's excessive force claim, the U.S. Supreme Court held that the detainee was required to show only that “the force purposely and knowingly used was objectively unreasonable in light of the facts and circumstances at the time.” Kingsley v. Hendrickson 576 U.S. 389, 397-98, 403 (2015). This Court need not reach the subjective prong if Defendants have demonstrated that there are no facts from which a juror could conclude that the grab in this case was not objectively sufficiently serious. Thus, I first address whether the conduct was objectively sufficiently serious.
The good faith of the officer in using the force is nevertheless considered or “baked into” the standard by virtue of the fact that the reasonableness of the force is assessed from the perspective of the officer based on the facts the officer knew and perceived at the time. Id. at 399.
Since Crawford, a number of cases have considered various situations involving alleged sexual abuse to ascertain if the facts were sufficiently severe from an objective standpoint to give rise to a constitutional claim. One court found that a single isolated episode involving brief contact with an arrestee's genital area during a pat-down, through clothing and a touching of breast area to check underneath a bra was insufficiently severe to state a constitutional claim and was incidental to the search. Scalpi v. Amorim, 2018 WL 1606002, at *18 (S.D.N.Y. Mar. 29, 2018). Scalpi, however, involved a search that occurred prior to the decision in Crawford. In another case, a pretrial detainee asserted sexual abuse after the prison official grabbed her buttocks after she refused to squat a fourth time during the strip search. On a motion to dismiss, the court found that these allegations, accepted as true, were not sufficiently unreasonable or objectively serious to state a claim. Patterson v. Ponte, 2017 WL 1405753 (S.D.N.Y. Apr. 17, 2017). In another case involving a situation when a prison official inserted a finger into an inmate's rectum to find a pill that the inmate allegedly had stolen causing pain and contrary to prison protocols for conducting a manual body cavity search, the court found that the allegations stated a plausible claim for sexual abuse from an objective unreasonableness standpoint. Gilliam v. Black, 18 Civ. 1740, 2019 WL 3716545, at *13 (D. Conn. Aug. 7, 2019); See also Breton v. Cook, 20 Civ. 247, 2021 WL 1946377 (D. Conn. May 13, 2021) (on motion to amend, allegation that prison guard intentionally zipped up pants to catch the inmate's genitals and cause pain and damage was sufficient to state a claim from an objective standpoint); Torres v. City of New York, 17 Civ. 6604 (S.D.N.Y. Sept. 30, 2019) (on motion to dismiss, dismissing claim of sexual assault based on forced removal of contraband from an inmate's rectum for which there was reasonable belief that the Plaintiff had secreted contraband in a body cavity). Finally, one of the few cases this Court was able to find where the court addressed the standard on a motion for summary judgment is DeJesus v. Malloy, 531 F.Supp.3d 650, 654 (W.D.N.Y. 2021). In DeJesus, the plaintiff alleged that the prison official placed his hand inside plaintiff's pants and boxer shorts and squeezed his penis and testicles causing pain, swelling and blood in his urine for which he received medical treatment. Id. The Court found that these facts were objectively sufficiently serious to state a claim of sexual abuse and denied summary judgment. Id.
Based on the case law developed since Crawford, Defendants have not met their burden to show there are no material facts in dispute. Plaintiff alleges that Young grabbed the shaft of his naked penis while pulling up Plaintiff's boxer shorts during a strip search conducted in a manner contrary to how strip searches are to be conducted; that is-inmates, not guards, remove their own clothes and no touching by the guard is involved in the strip search. A reasonable juror could conclude that this touching was not incidental to the search and served no penological purposes and was objectively unreasonable and severe within the meaning of Crawford based on current standards of decency. Indeed, Defendants present no other undisputed facts that would preclude such a conclusion. To be sure, Young denies Plaintiff's allegation and there may be other evidence such as videos and testimony of witnesses that support Young's version of events. But, a jury must evaluate what actually happened, not the Court on a motion for summary judgment. See Crawford, 796 F.3d at 257 (recognizing that a single incident can be sufficient to be objectively serious, even if there is no physical injury, and that the focus on the inquiry is whether the sexual contact was “incidental to legitimate official duties”).
If the Eighth Amendment standard for sexual abuse applies, then Defendants might still prevail on their motion if there were no facts from which a reasonable juror could conclude that Young lacked the requisite mens rea. In Boddie, the Circuit recognized that “[w]here no legitimate law enforcement or penological purpose can be inferred from the defendant's alleged conduct, the abuse itself may, in some circumstances, be sufficient evidence of a culpable state of mind.” 105 F.3d at 861. In Crawford, the Circuit elaborated that evidence of intent to humiliate the inmate or to sexually gratify the prison official would satisfy the mens rea element, but also recognized that the conduct itself alone may be sufficient to satisfy the mens rea prong. 796 F.3d at 257 & n.4. Finally, in DeJesus, the court denied summary judgment noting that there was no evidence presented that would show there was a penological purpose for the guard to have reached inside the Plaintiff's pants, grabbing and squeezing his penis, and later stating “you like that freak” as he performed a pat frisk. 531 F.Supp.3d at 664. This absence of evidence was sufficient to preclude summary judgment on the mens rea prong, to the extent applicable, in light of the standard set forth in Crawford. The court noted that it would be different if the search had occurred outside the inmate's pants. Id. (citing to Shaw v. Prindle, 661 Fed.Appx. 16, 19 (2d Cir. 2016) (affirming grant of summary judgment where pat frisk search conducted outside the plaintiff's clothing involved “excessive searching” of the crotch area, between the plaintiff's buttocks and massaging of the rectum and groin area). Assuming there is a mens rea requirement for a Fourteenth Amendment claim, in light of the fact that mens rea can be inferred if there is no penological purpose to the contact and that there is no evidence whatsoever of a valid penological purpose for grabbing an inmate's naked penis during the course of strip search (which typically does not involve any physical touching of the inmate but rather close visual inspection), the grab itself may be sufficient for a reasonable juror to conclude Young acted with a culpable state of mind. Boddie, 105 F.3d at 861. Thus, even if the mens rea prong applies, there are factual issues that preclude summary judgment.
The conduct in Prindle occurred prior to Crawford. Thus, it is unclear whether the outcome in Prindle would be the same postCrawford. Shaw v. Prindle, 2015 WL 4740374 (N.D.N.Y. Aug. 10, 2015). This Court does not read Crawford to make touching over clothes less of a concern than touching of an inmate's unclothed body; to the contrary, Crawford states that touching is not even necessarily required to make out a claim of sexual abuse. See Crawford, 796 F.3d at 257.
In sum, when construing the sparse undisputed facts in the light most favorable to Plaintiff, Defendants have not met their burden to show that no reasonable juror could conclude that the conduct was solely gratuitous and unreasonable based on contemporary standards of decency. Accordingly, I recommend denying Defendant's motion for summary judgment on Plaintiff's claim of sexual abuse in violation of his Fourteenth Amendment rights.
2. Excessive Use of Force Claim
a. Applicable Law
Plaintiff's Complaint raises two separate excessive force claims: one against Mayo for handcuffing Plaintiff against the wall; and one against Humphries and Young for assisting Mayo in restraining Plaintiff by punching Plaintiff in the back. Defendants argue that none of this conduct amounts to excessive force under the Fourteenth Amendment, as it was objectively reasonable given the circumstances at the time and did not cause a serious injury to Plaintiff. As noted above, the Supreme Court has stated that 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, 397-98, 403. 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. Id.; See also Barnes v. Harling, 368 F.Supp.3d 573, 592 (W.D.N.Y. 2019) (discussing factors).
b. Excessive Force Claim Against Corrections Officer Mayo
The undisputed facts concerning Mayo's handcuffing of Plaintiff do not, under the objectively unreasonable standard, state a claim under the Fourteenth Amendment. To start, the handcuffing occurred because Plaintiff admittedly was belligerent and refused to consent to a routine search. (See Pl. Dep. at ECF No. 94-1, p. 115.) Plaintiff also acknowledged during his deposition that he understood that correctional officials conduct institutional searches and strip searches and does not dispute the purpose of the search. (Id. p. 74.)
Notably, Plaintiff's flex cuffs had been removed and he was not handcuffed when he became belligerent, refused to continue with the search, and threatened to fight Young based on what he thought Young had said to him. (Id. p. 104.) In response to Plaintiff's belligerence and threats, no reasonable juror could conclude that it was unreasonable for Mayo to restrain Plaintiff against the wall and handcuff Plaintiff to maintain order and avoid a threat of injury to both Plaintiff and the officers conducting the search. Indeed, courts have found that similar uses of force, as used here, were not objectively unreasonable. See, e.g. Casiano v. Ashley, 515 F.Supp.3d 19, 25 (W.D.N.Y. 2021) (granting summary judgment where the Court found that plaintiff's refusal to comply with deputies' directives and the resulting use of force was objectively reasonable to get her to comply with their commands where the officers grabbed her, together with another deputy, and pushed her against a wall and threw her onto the floor; also finding that the deputies did not strike her; they grappled with her and wrestled her to the floor in an effort to get her handcuffed); Berman v. Williams, No. 17cv2757, 2019 WL 4450810, at *6 (S.D.N.Y. Sept. 17, 2019) (“The defendants' use of force - in this case punching and using one burst of mace - during the Intake Search Area incident was objectively reasonable because it was proportionate to the plaintiff's resistance. The plaintiff refused to comply with orders to remove his clothing in the Intake Search Area, which was a legitimate command.”); Barnes v. Harling, 368 F.Supp.3d 573, 592 (W.D.N.Y. 2019) (summary judgment granted where the Court found that the officer used an objectively reasonable amount of force in an effort to restore institutional security and handcuff plaintiff when he knee-striked plaintiff); France v. Morton, No. 12-CV-5576 (KMK), 2018 WL 1276860, at *9 (S.D.N.Y. Mar. 9, 2018) (Summary judgment granted as to the excessive force claim where plaintiff alleged that the officers bashed plaintiff's head against the wall, grabbed him by his neck choking him, and picked him up by his handcuffs. Court found force used was not objectively unreasonable where officers believed plaintiff posed a physical threat and was not obeying an order, resulting in the officer using limited force to bring plaintiff to the bed to handcuff him.); Dobbins v. Ponte, No. 15-CV-3091 (JMF), 2017 WL 3309726, at *5 (S.D.N.Y. Aug. 2, 2017) (Summary judgment granted where the Court found that plaintiff was indisputably acting in a belligerent and defiant manner, and with need to preserve internal order and discipline to maintain institutional security the force used to restrain plaintiff - i.e. forcefully holding plaintiff's handcuffed arms behind in in control holds to gain his compliance and to ensure he did not escape them and run - was not objectively unreasonable.).
Additionally, Plaintiff's alleged injury from Mayo's conduct is minor -- abrasions on both wrists and an abrasion on the left side of his lower back. (Pl. Dep. at ECF No 94-1 at pps. 151152.) Courts find that this type of injury falls into the category of de minimis. See Johnson v. City of New York, No. 18-CV-5623 (ALC), 2020 WL 3100197, at *3 (S.D.N.Y. June 11, 2020) (The Court dismissed plaintiff's unnecessary handcuffing /1983 excessive force claim where detective pulled plaintiff out of holding pen, causing plaintiff's head and body to hit the wall, and other offices grabbed plaintiff and shoved him against wall to handcuff him and plaintiff suffered a bump on his forehead, head pain, bruises on his left and right wrists, and numb wrists.); McGarrell v. Arias, No. 18-CV-2273, 2019 WL 2528370, at *4 (S.D.N.Y. Mar. 1, 2019), report and recommendation adopted, No. 18-CV-2273, 2019 WL 1254880 (S.D.N.Y. Mar. 19, 2019) (“De minimis injuries from handcuffing such as numbness or inflammation are insufficient to sustain an excessive force claim.”); see also id. (“Minor cuts from handcuffing do not support an excessive force claim, even if the cuts result in some bleeding.”) In this case, Plaintiff's minor injuries also support a finding that the use of force was not severe and consistent with the objective of eliminating the physical threat Plaintiff posed to the officers by his belligerence and threats to fight. As a general matter, de minimis uses of physical force does not give rise to a Fourteenth Amendment claim. McGarrell v. Arias, No. 18CIV2273GBDHBP, 2019 WL 2528370, at *4 (S.D.N.Y. Mar. 1, 2019), report and recommendation adopted, No. 18CIV2273GBDHBP, 2019 WL 1254880 (S.D.N.Y. Mar. 19, 2019); Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) (holding that “[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights;” granting summary judgment and dismissing claims of excessive force during arrest where plaintiffs' handcuffs were applied too tightly causing “minor discomfort, ” but sustained no serious injury).
Not only was Mayo's use of force de minimis under the circumstances, Plaintiff did not allege in his complaint or in his deposition any facts to suggest that Mayo did not perceive the need to restrain and cuff Plaintiff given his admitted yelling and invitation to fight Young. Rather, the undisputed facts based on Plaintiff's own deposition testimony point to a finding that Mayo reasonably applied de minimis force to obtain compliance with the search protocol. In sum, no reasonable juror could conclude that Mayo's use of force was excessive based on the undisputed facts presented. Johnson v. City of New York, 2011 WL 1044852, at *1 (S.D.N.Y. Mar. 18, 2011) (The Court granted defendants motion for summary judgment where plaintiff's “tight handcuffs” claim was not “sufficiently serious or harmful enough” to be actionable, and that the handcuffing did not constitute conduct that is “repugnant to the conscience of mankind” based on the contemporary standards of decency.)
Accordingly, I recommend granting Defendants' summary judgment motion with regard to the excessive force claim against Mayo.
c. Excessive Force Claim Against Corrections Officers' Humphries and Young
Similarly, the facts concerning the force used by Humphries and Young, under the objectively reasonable standard, do not state a claim under the Fourteenth Amendment. Again, the standard is evaluated from the perspective of a reasonable officer on the scene, and “not with the 20/20 vision of hindsight.” Kingsley, 576 U.S. at 397. The court must account for the interest of the detention facility to preserve order and discipline and protect the safety of officers and inmates. Id. The standard focuses on whether the actions are rationally related to a legitimate, nonpunitive purpose and whether the force appears excessive in relation to that purpose. Id. at 398.
Plaintiff alleges that he was punched four or five times for about three or four minutes in the back, admittedly while he was fighting and resisting against the hold of the officers and refusing to continue with the search. (Pl. Dep. at ECF No. 94-1 at p. 123.) Defendants argue that Humphries' and Young's actions were meant to subdue Plaintiff given his belligerence and threats to fight while being handcuffed and, in the moments, thereafter. (ECF No. 85 at p. 25.) They describe what they did as using upper body controls, including punches to Plaintiff's back, in an effort to secure him against the cell wall. (ECF No. 85 at p. 25; Defs. 56.1 at ¶¶ 17-18.) There is no dispute that once Plaintiff was secured and no longer fighting against the guards, no additional force was utilized. (Pl. Dep. at ECF No. 94-1 at pps. 123-124.)
When an inmate is belligerent, trying to fight off officers and yelling, even while cuffed, security and discipline issues are readily apparent. Plaintiff was not lying on the floor and pinned down. He was attempting to fight off the officers and refusing to comply with an institutional search. He could have kicked the officers, butted them with his head, or otherwise presented a safety risk. Given “the security problem at issue; the threat reasonably perceived by the officer[s]; and [the fact that Plaintiff] was actively resisting, ” Kingsley v. Hendrickson, 576 U.S. 389, 135 S.Ct. 2466, 2473, 192 L.Ed.2d 416 (2015), Defendants were justified in using nontrivial amounts of force. See e.g., Frost v. New York City Police Dep't, 980 F.3d 231, 256 (2d Cir. 2020) (affirming dismissal of excessive force claim with regards to the January 16, 2013 incident where defendants had to use force to extract the plaintiff from his cell and the plaintiff struggled with officers, even though the Court found that the struggle between the officers and plaintiff could have been gentler); Frost v. Davis, 2019 WL 4512620, at *7 (S.D.N.Y. Sept. 18, 2019) (granting summary judgment on plaintiff's excessive force claim where, throughout the officers encounter with the plaintiff, the officers struggled with plaintiff and the most serious use of force was taking plaintiff down to the ground and spraying plaintiff with OC spray; forced use found to be well within the Fourteenth Amendment's standard of objective reasonableness). This conclusion is bolstered by Plaintiff's own admission that when he stopped resisting, no further force was utilized. In other words, the force was used only to gain control, a legitimate purpose.
Fortunately, Plaintiff was not seriously injured by the punches. Plaintiff's medical report noted abrasions on both wrists (from the handcuffs) and an abrasion on the left side of his lower back for which he was prescribed Ibuprofen and a muscle relaxant. (ECF No. 82-3, Exh. C. “Injury to Inmate Report;” Exh. D Correctional Health Services Medical Records.”) Additionally, Plaintiff underwent an x-ray on his back which revealed no acute stress or significant injury and was diagnosed with a backache. (Id.) Although evidence about the nature and extent of a Plaintiff's injuries are not dispositive of an excessive force claim, de minimis injuries suggest the force was not significant. Rolkiewicz v. City of N.Y., 442 F.Supp.3d 627, 645 (S.D.N.Y. 2020); Washpon v. Parr, 561 F.Supp.2d 394, 407 (S.D.N.Y. 2008). Courts have found that more severe force than used in this case was not so objectively unreasonable to give rise to an excessive force claim under the Fourteenth Amendment. See Brooks v. Westchester Cty. Jail, 2021 WL 3292229, at *6 (S.D.N.Y. Aug. 2, 2021) (summary judgment granted where the force defendant used against plaintiff was objectively reasonable and no reasonable juror could conclude otherwise because the forced used was limited after plaintiff refused to lock into his cell and shoved defendant away, plaintiff's injuries of a cut to his right knuckle, and pain to his head, face, lip and shoulder were de minimis injuries, and the level of force used was objectively reasonable to compel plaintiff's cooperation); Malave v. Austin, 2021 WL 3603433, at *6 (E.D.N.Y. Aug. 13, 2021) (dismissing plaintiff's excessive force claim where officer pushed plaintiff twice resulting in plaintiff's fall causing her severe pain to her neck, back, chest, arms and left wrist, holding that, while the officer could have used less force against plaintiff, the use of force was objectively reasonable.); Boomer v. Lanigan, 2002 WL 31413804, at *2 (S.D.N.Y. Oct. 25, 2002) (granting summary judgment on pretrial detainee's excessive force claim where, inter alia, “[t]he tape shows that a scuffle ensued . . . which consisted essentially of the Team leaning into [plaintiff] to hold him against the wall until he settled down”).
Lastly, the Court notes that Plaintiff's opposition memo does not oppose the dismissal of this excessive force claim, nor does it refute any facts regarding the situation surrounding the use of force. Rather, his opposition focuses on the sexual conduct and the conditions in the cell while he was waiting to go to the medical unit.
In light of the above, no reasonable juror could conclude that the force used by Humphries and Young was objectively unreasonable. Accordingly, I recommend granting summary judgment with respect to the excessive force claim against Humphries and Young.
3. Deliberate Indifference Claims
a. Applicable Law
Read liberally, Plaintiff's complaint raises deliberate indifference claims as to the delay in his medical treatment for his alleged chest pain and, separately, as to the conditions of his confinement. 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, 837 (1994). “The Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones[.]” Id. at 832 (internal quotation marks and citation omitted). A pretrial detainee's deliberate indifference claim is analyzed under the Due Process Clause of the Fourteenth Amendment. Charles v. Orange Cty., 925 F.3d 73, 85-86 (2d Cir. 1019) (explaining that conduct constituting deliberate indifference to medical needs in violation of Eighth Amendment for convicted prisoners would also violate the Fourteenth amendment rights of pretrial detainees.); see also Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017.)
To prevail on a deliberate indifference claim, a plaintiff must offer evidence that (1) the medical need was “a condition of urgency, ” and (2) that the defendants treated that need with deliberate indifference. Charles v. Orange Cty., 925 F.3d 73 at 86.
b. Medical Indifference Claim
As a threshold matter, Plaintiff was not deprived of medical care; rather, he indisputably was treated the same day as the incident. Perez v. Hawk, 302 F.Supp.2d 9, 21 (E.D.N.Y.2004) (citation omitted) (“treatment of a [plaintiff's] medical condition ‘generally defeats a claim of deliberate indifference.'”). Second, Plaintiff does not raise any complaint about the medical treatment or care he was provided.
The crux of Plaintiff's medical indifference claim is that Mayo was indifferent to his need for medical attention, by delaying his medical treatment, when he informed them he was experiencing pain in his chest and that he was asthmatic. However, this claim also fails. When a detainee's deliberate indifference claim involves delay in treatment, not denial of treatment, the analysis of the medical need “focus[es] on the challenged delay . . . rather than the prisoner's underlying medical condition alone in analyzing whether the alleged deprivation is, in objective terms, sufficiently serious.” Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003). The strip search and handcuffing took place at approximately 9:20 a.m. on March 1, 2019 and, according to medical paperwork, Plaintiff was seen by Dr. Pravin Ranjan at approximately 2:20 p.m. Plaintiff complained to an officer that he needed to be treated because he had asthma and chest pains, a sore back, and a sore wrist. (Pl. Dep at ECF No. 94-1 at p. 132.) While Plaintiff testified that he felt an asthma attack coming on, Plaintiff did not further elaborate about this when complaining to Mayo. While asthma can be serious, at the first two instances in speaking to guards he could not identify, Plaintiff did not assert that he told the guards that he could not breathe or was having an asthma attack. Nor is there any evidence he was showing signs of a heart attack or that he told guards he thought he was having a heart attack or asthma attack. Notably, the doctor's report from the same day suggests that Plaintiff did not have any breathing or heart issues. Instead, the doctor diagnosed Plaintiff with minor abrasions and prescribed Ibuprofen and a muscle relaxant. (ECF No. 82-3, Exs. C, D.) These undisputed facts suggest that the delay was not objectively serious. Furthermore, Plaintiff presents no evidence that his condition worsened because of any delay in seeing the doctor.
There is a slight discrepancy as to the exact times, but these discrepancies are immaterial to the outcome of the motion on this claim, as there appears to be agreement that the wait was approximately five hours. (Pl. Dep. at ECF No. 94-1 at p. 131.)
In similar cases involving equivalent or even more serious medical conditions, courts have found that a prisoner failed to state a viable claim of deliberate indifference to medical needs because of non-seriousness of medical condition and/or a mere delay in treatment. See, e.g. Rolkiewicz v. City of New York, 442 F.Supp.3d 627 (S.D.N.Y. Mar. 3, 2020) (granting summary judgment because plaintiff's bruise on his head does not amount to a condition of urgency); Goodwin v. Kennedy, 2015 U.S. Dist. LEXIS 29282, 2015 WL 1040663 at *12 (E.D.N.Y. Mar. 10, 2015) (multiple cuts and lacerations not serious; collecting cases); Bilal v. White, 494 Fed.Appx. 143, 145-46 (2d Cir. 2012) (affirming dismissal of deliberate indifference claims for prisoner with epilepsy and arthritis involving only a few hours delay in treatment and no evidence that inmate's conditions worsened over the hours of delay); Ford v. Phillips, 2007 WL 946703, at *12 (S.D.N.Y. March 27, 2007) (granting summary judgment because plaintiff's medical needs, including a bruise on his forehead, abrasions with bleeding on his left temple, upper chest, abdomen, underarm, scratches on his upper back are not injuries that produce death, degeneration or extreme pain.); Bumpus v. Canfield, 495 F.Supp.2d 316, 322 (W.D.N.Y. 2007) (granting summary judgment where an unexplained several-day delay in dispensing plaintiff's hypertension medication did not give rise to constitutional violation because no evidence that delay caused any actual harm to plaintiff or gave rise to a significant risk of serious harm); McCoy v. Goord, 225 F.Supp.2d. 233, 260 (S.D.N.Y. 2003) (plaintiff who claimed that prison officials failed to treat him for chest pains did not make out an Eighth Amendment claim of deliberate indifference, noting that plaintiff failed to allege a serious medical condition); Cf. Hutchinson v. New York State Corr. Officers, 2003 WL 22056997, at *3 (S.D.N.Y. Sept. 4, 2003) (complaint of chest pain did not constitute a sufficiently serious condition); Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) (quoting Chance, 143 F.3d 698, 702 (2d Cir. 1998) (temporary discomfort and five-hour delay in treatment did not give rise to constitutional violation).
There also are no facts from which a reasonable juror could infer that Mayo acted recklessly or failed to act with reasonable care to mitigate any risk to Plaintiff's health or safety. Even assuming that upon hearing Plaintiff's medical complaints and request to go to the medical unit Mayo said, “you wanted to be an asshole this morning, ” (Pl. Dep. at ECF No. 94-1 at p. 132), there is no evidence that Mayo was indifferent to Plaintiff's care, failed to alert the medical unit of Plaintiff's need for treatment, or was actually responsible for any delay in taking Plaintiff to the medical unit. To the contrary, Plaintiff received appropriate treatment, just not as quickly as he preferred. This too requires dismissal of Plaintiff's claim. See Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (granting summary judgment where plaintiff failed to demonstrate that any officer was actually aware of the severity, if any, of his injury.); Yant v. Scholack, 1998 WL 157053 at *7 (S.D.N.Y. Apr. 3, 1998) (granting summary judgment where prisoner failed to demonstrate that any of the named defendants had any personal involvement in, or responsibility for, plaintiff's failure to receive medicine.); Hamilton v. Broomfield, 1998 WL 17697 at *3 (S.D.N.Y. Jan. 20, 1998) (dismissing plaintiff's denial of medical treatment claim because, inter alia, “plaintiff [does not] allege that the officers were aware that ‘a substantial risk of serious harm' existed”).
In sum, no reasonable juror could conclude that Mayo acted unreasonably, let alone violated Plaintiff's right to adequate medical care, based on the undisputed facts presented. Accordingly, I recommend granting Defendant's motion for summary judgment with regard to this claim.
c. Conditions of Confinement Claim
Although not articulated in Plaintiff's complaint, in his deposition Plaintiff complained that his temporary cell in the segregation intake unit in which he waited before going to the medical unit did not have a chair, bed frame, or mattress. (ECF No. 94-1 at p. 131.) The Court construes this as a claim for deliberate indifference as to the conditions of confinement. When evaluating such a claim, courts look to “contemporary standards of decency.” Darnell, 849 F.3d at 29. Numerous courts have held that unpleasant or unsanitary conditions only rise to the level of a constitutional violation if they amount to an “objectively, sufficiently serious . . . denial of the minimal civilized measure of life's necessities.” Willey v. Kirkpatrick, 801 F.3d 41, 66 (2d Cir. 2015). Furthermore, a plaintiff must proffer facts to show an official's deliberate indifference to those conditions, or that that those conditions are punitive. Darnell, 849 F.3d at 34 n.12
In this case, Plaintiff was in the cell for around five hours where (the Court assumes) he had to sit on the floor or stand. Plaintiff provides no facts to suggest that this situation posed an unreasonable risk of serious damage to his health. While the Court recognizes that this wait was no doubt unpleasant, the circumstances do not rise to a deprivation of constitutional rights because the conditions were not objectively sufficiently serious to pose a risk to Plaintiff or otherwise inhumane. See Darnell, 849 F.3d at 30 (quoting Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013)) (to state a claim for a violation of due process based on conditions of confinement, a plaintiff must show the challenged “conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health, which includes the risk of serious damage to physical and mental soundness.”); see also Milling, 876 F.3d at 55; see also, KEITH DREW, Plaintiff, v. CITY OF NEW YORK et al., Defendants. Additional Party Names: Cynthea Cowan, Cynthia Brann, Edward Jeffries, Joel Andrews, Joseph Ponte, Kisa Smalls, Marie-Ange Dorval, Maxsolaine Mingo, Tonya Glover, Unisha Flood, 2022 WL 19705, at *5 (S.D.N.Y. Jan. 3, 2022) (dismissing complaint where pretrial detainee failed to allege that he suffered any harm, was deprived of any basic human need during a 12-hour lockdown, nor that any defendant “knew or should have known” that the lockdown posed an “unreasonable risk of serious damage to his health.”); Corley v. City of New York, 2017 WL 4357662, at *12 (S.D.N.Y. Sept. 28, 2017) (dismissing plaintiff's conditions of confinement claim finding “[p]laintiff's allegations do not plead the necessary requirements” for a claim for unconstitutional conditions of confinement where plaintiff's pleading “contain[ed] no facts to suggest that the lock-downs [at issue] caused him any harm whatsoever”).
Accordingly, I respectfully recommend granting summary judgment as to Plaintiff's conditions of confinement claim.
4. Claims Against Captains Gustave and Mitchell
Defendants suggest that Plaintiff does not raise any claims against Captains Gustave and Mitchell. After reading Plaintiff's deposition, the undersigned construes Plaintiff's complaint as raising two failure to intervene claims: one against Captain Gustave and one against Captain Mitchell.
To hold an officer liable under a failure to intervene theory, a plaintiff must demonstrate that the officer's failure to intervene “permitted fellow officers to violate” the plaintiff's “clearly established statutory or constitutional rights, ” and that it was “objectively unreasonable . . . to believe that his fellow officers' conduct did not violate those rights.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997). A police officer is under a duty to intercede and may be held liable for his failure to do so if he has sufficient time to act to prevent it. O'Neill v. Krzeminski, 839 F.2d 9, 11-12 (2d Cir. 1988); see also Figueroa v. Mazza, 825 F.3d 89, 106 (2d Cir. 2016). Moreover, the officer faulted for failing to intervene must have had “a realistic opportunity to intervene to prevent the harm from occurring.” Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). Because a plaintiff may recover on a failure to intervene theory only by showing that the purported failure led to the denial of clearly established statutory or constitutional rights, Ricciuti, 124 F.3d at 129, a “failure to intervene claim is contingent upon the disposition of the [underlying] primary claims.” Levy v. City of New York, 935 F.Supp.2d 575, 594 (E.D.N.Y. 2013); Martinez v. City of New York, 2021 WL 4502440, at *12 (E.D.N.Y. Sept. 30, 2021) (The Court found that since summary judgment is appropriate for the defendants on those underlying claims, summary judgment is also appropriate on the failure to intervene claims predicated upon them.)
Plaintiff testified that Captain Mitchell ordered the officers around, told Young to get out of the search pen, and witnessed everything because he was the supervisor in the area where he was strip searched. (Pl. Dep. at ECF No. 94-1 at pps. 177-178.) From the facts presented, it appears that Mitchell potentially could have intervened with the search and prevented the alleged sexual abuse. Defendants have failed to provide undisputed facts that would preclude a reasonable juror from concluding that Mitchell had “a realistic opportunity to intervene” to prevent Young from taking it upon himself to disrobe the Plaintiff and then grabbing Plaintiff's penis. Anderson, 17 F.3d at 557. Thus, summary judgment is inappropriate on the failure to intervene claim against Mitchell as to the sexual abuse claim. See Martinez v. City of New York, 2021 WL 4502440, at *12 (E.D.N.Y. Sept. 30, 2021) (failure to intervene claim denied where Lieutenant was reportedly stationed at a desk with a full view of where plaintiff was handcuffed and was present at various points during his custody.) The same outcome is not warranted for the remainder of the failure to intervene claim.
Because a plaintiff may recover on a failure to intervene theory only by showing that the purported failure led to the denial of clearly established statutory or constitutional rights, Ricciuti, 124 F.3d at 129, a “failure to intervene claim is contingent upon the disposition of the [underlying] primary claims, ” Levy v. City of New York, 935 F.Supp.2d 575, 594 (E.D.N.Y. 2013). Therefore, since I recommend that granting summary judgment is appropriate for Defendants Mayo, Young and Humphries on the excessive force claims, summary judgment is also appropriate on the failure to intervene claim against Mitchell predicated upon the excessive force claims.
With regard to Captain Gustave, Plaintiff testified in his deposition that Gustave could have removed himself from Plaintiff's housing area so the search could have been conducted there, obviating the need for Plaintiff to have been transported to segregation intake. (Pl. Dep. at ECF No. 94-1 at pps. 178-179.) This allegation, without more, is insufficient to state a claim of failure to intervene against Gustave because Gustave was not personally in the area when any of the alleged constitutional violations occurred. Gustave's position as a Captain is alone insufficient to state a claim against him personally. Tangreti v. Bachmann, 983 F.3d 609, 619620 (2d Cir. 2020). Accordingly, I recommend granting summary judgment as to the failure to intervene claims raised against Captain Gustave.
5. Qualified Immunity
Defendants argue that the officers are entitled to qualified immunity for their conduct. Given that I have recommended granting Defendants' motion as to all claims except as to the sexual abuse and related failure to intervene claim, it is only necessary to evaluate the latter.
“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). 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)). The immunity 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)). Nevertheless, 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 on summary judgment only when “the factual record is not in serious dispute.” Lennon, 66 F.3d at 421 (2d Cir. 1995) (quoting Warren v. Dwyer, 906 F.2d 70, (1990)); see also Busch v. City of New York, 2003 WL 22171896 (E.D.N.Y. Sept. 11, 2003) (In the context of qualified immunity the Court found that there were “too many disputed facts” that played into the issue of whether defendant's use of pepper spray was excessive).
In this case, Plaintiff's constitutional right to be free from gratuitous sexual touching was clearly established prior to the incident. See Crawford, 796 F.3d 252 (2d Cir. 2015). Accordingly, Young and Mitchell are entitled to qualified immunity if they can establish, as a matter of law, that it was “objectively reasonable” for them to believe that their conduct was lawful. If the Court draws all reasonable inferences in Plaintiff's favor, as it must for purposes of the instant motion, neither Young nor Mitchell can meet their burden on this motion because they cannot show that “officers of reasonable competence could disagree” as to the propriety of grabbing an inmate's naked penis during the course of an institutional strip search. Accordingly, I respectfully recommend that Defendants' motion for summary judgment on the basis of qualified immunity be denied as to the remaining claims against Young and Mitchell. See Ortiz v. Pearson, 88 F.Supp.2d 151, 162-63 (S.D.N.Y. 2000).
6. Claims against the City of New York
Defendants note in their motion that the Court added the City of New York as a Defendant, pursuant to Federal Rule of Civil Procedure 21 (ECF No. 6.), but that the City of New York is entitled to summary judgment because Plaintiff has not asserted any claim whatsoever against the City. (ECF No. 85 at p. 10.) If Plaintiff intended to bring such a claim - this would be construed as a Monell claim.
To plead a § 1983 claim against a municipality, such as the City, a plaintiff must allege: “(1) actions taken under color of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an official policy of the municipality caused the constitutional injury.” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978)). In other words, a plaintiff seeking to hold a municipality liable under § 1983 must prove: “(1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Rodriguez v. Winski, 973 F.Supp.2d 411, 425 (S.D.N.Y. 2013). A plaintiff satisfies the “policy or custom” requirement by alleging 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.Johnson v. Paul, 2018 WL 2305657, at *3 (S.D.N.Y. May 21, 2018) (quoting Brandon v. City of New York, 705 F.Supp.2d 261, 276-77 (S.D.N.Y. 2010)).
Inaction can rise to the level of a municipal policy “where a local government is faced with a pattern of misconduct and does nothing, compelling the conclusion that the local government has acquiesced in or tacitly authorized its subordinates' unlawful actions.” Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007).
Defendants allege that Plaintiff failed to state any claim whatsoever against the City. Even though the Court is denying Defendant's motion for summary judgment with respect to the sexual abuse claim against Young and the failure to intervene claim against Mitchell, the Plaintiff has failed to allege the three elements to prove a Monell claim; mainly that an official policy or custom caused plaintiff to be subjected to a denial of a constitutional right. There are no facts here to suggest that the City had a policy, pattern, or practice of violating Plaintiff's Fourteenth Amendment rights with regards to the claims alleged. Furthermore, § 1983 requires Plaintiff to “demonstrate that, through its deliberate conduct, the municipality was the moving force behind the alleged injury[, ]” Lucente v. Cty. Of Suffolk, 980 F.3d 284, 297 (2d Cir. 2020), and that Plaintiff “suffered the denial of a constitutional right that was caused by an official municipal policy or custom.” McGrier v. City of New York, 849 Fed.Appx. 268 (2d Cir. 2021) (quoting Frost, 980 F.3d at 257). No such facts exist here. Accordingly, summary judgment should be granted against the City of New York.
CONCLUSION
For all of the foregoing reasons, I respectfully recommend that Defendants' motion for summary judgment be granted with respect to the excessive force claims, the conditions of confinement claims, the failure to intervene claim against Mitchell as to the excessive force, the failure to intervene claim as against Gustave, and any claims against the City of New York. I recommend that the motion be denied with respect to the sexual abuse claim against Young and the failure to intervene claim against Mitchell as to Young's alleged sexual abuse.
NOTICE
Plaintiff shall have seventeen days and Defendant shall have fourteen days from the service of this Report and Recommendation to file written objections to the Report and Recommendation, 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)).
If any party files written objections to this Report and Recommendation, the opposing party may respond to the objections after being served with a copy. Fed.R.Civ.P. 72(b)(2). Plaintiff shall have seventeen days and Defendant shall have fourteen days to respond. Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable John P. Cronan at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing 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 Cronan. The failure to file these timely objections will 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).