Opinion
18 Civ. 2273 (GBD)(HBP)
03-01-2019
FLOYD McGARRELL, Plaintiff, v. CORRECTION OFFICER ARIAS #3856, Defendant.
REPORT AND RECOMMENDATION
:
TO THE HONORABLE GEORGE B. DANIELS, United States District Judge,
I. Introduction
By notice of motion dated August 10, 2018 (Docket Item ("D.I." 15)), defendant moves pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the complaint for failure to state a claim on which relief can be granted. For the reasons set forth below, I respectfully recommend that the motion be granted.
II. Facts
Plaintiff, who is proceeding pro se, was formerly a pretrial detainee in the custody of the New York City Department of Corrections and was housed on Rikers Island. Read leniently, his complaint alleges the following facts.
On the morning of January 8, 2018, plaintiff was standing in front of his cell while it was being searched. Plaintiff was recovering from a broken ankle at the time and apparently was standing with crutches. Plaintiff had a chair in his cell, and the Captain conducting the search ordered a Corrections Officer to remove it. Plaintiff told the Captain that he had the chair for medical reasons and that he had a note authorizing him to have the chair. According to plaintiff, the Captain responded "It shouldn't be in your cell, if you have to take a shower then sit on your bucket."
Plaintiff then asked to be taken to "intake" to resolve the matter. Another inmate, apparently in the vicinity of plaintiff, also asked to be taken to intake. For reasons that are not explained in the complaint, the Captain then ordered the Corrections Officers to "secure all inmates," and plaintiff and the other inmate who had also requested to be taken to intake were the last to be searched. Defendant Arias then approached plaintiff and tried to force him back into his cell. Plaintiff repeated his request to be taken to intake, and the Captain then instructed Arias to handcuff plaintiff behind his back. Plaintiff stated that he was not supposed to be rear-cuffed for medical reasons and that he also had a medical note to that effect. Arias, nevertheless, rear-cuffed plaintiff "tightly," and "bended [sic] [plaintiff's] left hand upright into the cuffs" while the Captain took plaintiff's crutches and "tried to force [plaintiff] to walk" (Complaint (D.I. 2) ("Compl.") at 5).
I understand "intake" to refer to the medical department at Rikers Island. See Rivera v. Doe, 16 Civ. 8809 (PAE)(BCM), 2018 WL 1449538 at *2 (S.D.N.Y. Feb. 26, 2018) (Report & Recommendation), adopted at, 2018 WL 1441386 (S.D.N.Y. Mar. 22, 2018); Cuadrado v. City of New York, 05 Civ. 10706 (PKC), 2007 WL 2330300 at *2 (S.D.N.Y. Aug. 16, 2007).
The complaint does not explain the relationship, if any, between the order to "secure all inmates" and the search of plaintiff.
Plaintiff describes the ensuing events as follows:
When I refused to move without my crutches, fearing of falling and causing more damage to my broken ankle C.O. Arias forcefully took a step while holding my hand still bending it into the cuffs, making me lean forward close to falling. C.O. Arias # 3856 then held me up to stand pulling me up still bending my hand (left hand) into the cuff and I began to feel my hand going numb. I then told them I would go in my cell and Capt. Conyers instructed me to hop to the wall using my right leg to uncuff me [sic]. After debating that that's dangerous to me with them (the Correction Officers) I took 3 hops to the wall cause my left wrist [was] hurting. Still til this moment C.O. Arias # 3856 was bending my left hand upright into the cuff. After C.O. Arias uncuffed me I reached for my crutches and went in my cell and observed my left wrist which [was] swollen and bleeding. After an hour I received medical attention and [was] told the cuff cut into my wrist and the tightness was cutting off my blood circulation caus[ing] it to swell.(Compl. at 5-6).
Plaintiff seeks $40,000 in damages "for assault and excessive use of force" (Compl. at 5).
Defendant argues that the complaint should be dismissed because the complaint does not allege that the force used was objectively unreasonable and does not allege that plaintiff suffered an objective injury. In addition, to the extent the complaint can be construed as alleging a claim for deliberate indifference to a serious medical condition, defendant argues that the complaint should be dismissed for failing to allege a serious deprivation of medical care. Finally, to the extent the complaint can be read as alleging a common law claim for assault, defendant argues that it should be dismissed, as a matter of discretion, because the federal claims are being dismissed.
Plaintiff has not responded to defendant's motion. In order to ensure that plaintiff understood the consequences of his failure to respond, I issued an Order on October 16, 2018 (D.I. 22) advising plaintiff that although defendant's motion would not be granted on default, his failure to respond to the motion "ma[de] it substantially more likely that the motion to dismiss will be granted." My Order also extended plaintiff's time to respond to the motion to November 16, 2018. A copy of my Order was mailed to plaintiff's residence and has not been returned as undeliverable. To date, plaintiff has never made any submission in response to the motion nor has he contacted my chambers in any way.
III. Analysis
A. Legal Standards Applicable to Rule 12(b)(6) Motions
The general standards applicable to a motion to dismiss pursuant to Rule 12(b)(6) are well settled and require only brief review:
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678, 129 S. Ct. 1937 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). As the Supreme Court has explained, this standard creates a "two-pronged approach," id. at 679, 129 S.Ct. 1937, based on "[t]wo working principles," id. at 678, 129 S.Ct. 1937.
First, although a complaint need not include detailed factual allegations, it must provide "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). "Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we 'are not bound to accept as true a legal conclusion couched as a factual allegation.'" Id. (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). . . .
Second, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. This "facial plausibility" prong requires the plaintiff to plead facts "allow[ing] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, 129 S.Ct. 1937. Importantly, the
complaint must demonstrate "more than a sheer possibility that a defendant has acted unlawfully." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not 'show[n]' -- 'that the pleader is entitled to relief.'" Id. at 679, 129 S.Ct. 1937 (quoting Fed.R.Civ.P. 8(a)(2)). "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.Pension Benefit Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717-18 (2d Cir. 2013).
Where, as here, a plaintiff proceeds pro se, the complaint must be construed liberally to raise the strongest claims the allegations suggest. "We afford a pro se litigant 'special solicitude' by interpreting a complaint filed pro se to raise the strongest claims that it suggests." Hardaway v. Hartford Pub. Works Dep't, 879 F.3d 486, 489 (2d Cir. 2018) (internal quotation marks omitted); accord McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017); Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (per curiam); Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). Nevertheless, notwithstanding the leniency afforded to pro se litigants, "pro se complaints must contain sufficient factual allegations to meet the plausibility standard[.]" Okoh v. Sullivan, 441 F. App'x 813, 814 (2d Cir. 2011) (summary order). "Even in a pro se case, . . . 'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'" Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010), quoting Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). Finally, although a court is "obligated to draw the most favorable inferences that [a pro se] complaint supports, [it] cannot invent factual allegations that [plaintiff] has not pled." Chavis v. Chappius, supra, 618 F.3d at 170.
B. Application of the Foregoing Principles
1. Excessive Force
A pretrial detainee, like plaintiff, is protected against the use of excessive force by corrections officials by the Due Process clause of the Fourteenth Amendment. United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999); accord Quiller v. City of New York, 16 Civ. 3205 (RJS), 2018 WL 3418777 at *3 (S.D.N.Y. July 13, 2018) (Sullivan, then D.J., now Cir. J.). In order to state a claim for excessive force, a pretrial detainee must allege facts showing "that the force purposely or knowingly used against him was objectively unreasonable." Kingsley v. Hendrickson, --- U.S. ---, 135 S. Ct. 2466, 2473 (2015).
"[O]bjective reasonableness turns on the 'facts and circumstances of each particular case,'" [Kingsley v. Hendrickson, supra, 135 S. Ct. at 2473] (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)), and the Court must determine objective reasonableness "from the perspective of a reasonable officer on the scene,
including what the officer knew at the time," and accounting for the "'legitimate interests that stem from [the government's] need to manage the facility in which the individual is detained,'" id. (quoting Wolfish, 441 U.S. at 540). "[T]he effective management of the detention facility once the individual is confined" has been determined by the Supreme Court to be "a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such restrictions are intended as punishment." Wolfish, 441 U.S. at 540. A non-exclusive list of the considerations that may bear on the reasonableness of the use of force includes: "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 . . . to temper or to limit the amount of force; the severity of the security problem . . .; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting." Kingsley, 135 S. Ct. at 2473.Knight v. City of New York, 16 Civ. 7888 (RJS), 2019 WL 95480 at *3 (S.D.N.Y. Jan. 2, 2019) (Sullivan, Cir. J.)
"[E]xcessively tight handcuffing that causes injury can constitute excessive force . . . ." Shamir v. City of New York, 804 F.3d 553, 557 (2d Cir. 2015). "[I]n evaluating the reasonableness of handcuffing, a Court is to consider evidence that: 1) the handcuffs were unreasonably tight; 2) the defendants ignored the arrestee's pleas that the handcuffs were too tight; and 3) the degree of injury to the wrists." Esmont v. City of New York, 371 F. Supp. 2d 202, 215 (E.D.N.Y. 2005) (Sifton, D.J.); accord Pizarro v. Ponte, 17 Civ. 4412 (LGS), 2019 WL 568875 at *6 (S.D.N.Y. Feb. 11, 2019) (Schofield, D.J.); Rivera v. Samilo, 16-CV-1105 (DLI)(JO), 2018 WL 1701935 at *10 (E.D.N.Y. Mar. 30, 2018); Lloyd v. City of New York, 246 F. Supp. 3d 704, 724 (S.D.N.Y. 2017) (Woods, D.J.); Lynch v. City of Mt. Vernon, 567 F. Supp. 2d 459, 468 (S.D.N.Y. 2008) (Conner, D.J.). "[R]outine handcuffing . . . absent something more, cannot constitute a cognizable excessive force claim." Jouthe v. City of New York, 05-CV-1374 (NGG)(VVP), 2009 WL 701110 at *14 (E.D.N.Y. Mar. 10, 2009) (internal quotation marks omitted). "There is a consensus among District Courts in this Circuit that tight handcuffing does not constitute excessive force unless it causes some injury beyond temporary discomfort and bruising." Hollins v. City of New York, 10 Civ. 1650 (LGS), 2014 WL 836950 at *9 (S.D.N.Y. Mar. 3, 2014) (Schofield, D.J.); accord Codrinqton v. City of New York, 12-CV-01650 (SLT)(SMG), 2015 WL 893567 at *10 (E.D.N.Y. Mar. 2, 2015) ("'[T]ight handcuffing' generally does not give rise to an excessive force claim absent a showing of lasting injury."). De minimis injuries from handcuffing such as numbness or inflammation are insufficient to sustain an excessive force claim. Hamlett v. Town of Greenburgh, 05 Civ. 3215 (MDF), 2007 WL 119291 at *3 (S.D.N.Y. Jan. 17, 2007) (Fox, M., M.J.) (numbness); Wilder v. Village of Amityville, 288 F. Supp. 2d 341, 344 (E.D.N.Y. 2003) (inflammation). Minor cuts from handcuffing do not support an excessive force claim, even if the cuts result in some bleeding. Burroughs v. Mitchell, 325 F. Supp. 3d 249, 270 (N.D.N.Y. 2018); Sullivan v. City of New York, 17 Civ. 3779 (KPF), 2018 WL 3368706 at *10 (S.D.N.Y. July 10, 2018) (Failla, D.J.); Kaplan v. City of New York, 14 Civ. 4945 (RJS), 2018 WL 2084955 at *9 (S.D.N.Y. Mar. 22, 2018) (Sullivan, then D.J., now Cir. J.); Gardner v. Robinson, 16 Civ. 1548 (GBD)(RWL), 2017 WL 8890294 at *9 (S.D.N.Y. Nov. 22, 2017) (Report & Recommendation) (Lehrburger, M.J.), adopted in pertinent part, rejected in part, 2018 WL 722858 (S.D.N.Y. Feb. 6, 2018) (Daniels, D.J.); Gersbacher v. City of New York, 134 F. Supp. 3d 711, 723-24 (S.D.N.Y. 2015) (Woods, D.J.); Ambrose v. Korines, CV030411 (TCP)(MLO), 2005 WL 1962027 at *2 (E.D.N.Y. Aug. 9, 2005).
Judged by the foregoing standards, plaintiff's excessive force claim fails to state a claim. Plaintiff does not allege that he ever complained to Arias that the handcuffs were too tight, nor does he claim that he ever sought medical treatment for any injury resulting from the handcuffing. In addition, it appears that plaintiff sustained only minor injuries as a result of the handcuffing. He describes his injuries as swelling and a cut that caused bleeding. However, without more detail, it is impossible to assess whether the cut was in the nature of a scratch or paper cut or something more severe. The inference that plaintiff suffered only a minor injury is also supported by plaintiff's apathy with respect to this action. Plaintiff never responded to defendant's motion and never responded to my Order inviting a response and extending his time to respond mea sponte. Common sense teaches that an individual who has suffered a non-trivial injury would not be so indifferent to proceedings seeking redress for the injury. Finally, plaintiff also alleges that the handcuffs were removed as soon as he reentered his cell, suggesting that they were applied for only a very short period of time.
According to the complaint, plaintiff sought to be taken to intake to resolve the issue of whether he was permitted to have a chair in his cell, and the request to be taken to intake preceded the application of the handcuffs (Compl. at 4-5). Thus, the request to be taken to intake could not have been the result the handcuffing.
Plaintiff's allegation that Arias "bended [sic] [plaintiff's] left hand upright into the cuffs" is somewhat troubling because it can be read to suggest that Arias deliberately used a maneuver intended to inflict pain on plaintiff. "When prison officials maliciously and sadistically use force to cause harm[,] . . . contemporary standards of decency always are violated[,] . . . whether or not significant injury is evident." Wilkins v. Gaddy, 559 U.S. 34, 37 (2010), quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992). However, given the absence of any allegation of a non-trivial injury, the absence of a claim this maneuver caused any injury and the apparently short duration of plaintiff's handcuffing, Arias' alleged conduct is not of sufficient gravity to constitute a constitutional violation. Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) ("Not 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.").
As explained below, if your Honor accepts my recommendation that the complaint be dismissed, I also recommend that plaintiff be granted thirty days to submit an amended complaint. If there is more to Arias' alleged conduct or plaintiff's injury than is set forth in the complaint, plaintiff will have an opportunity to supplement those allegations in an amended complaint.
Thus, I conclude that plaintiff has failed to allege a claim for excessive force based on the alleged application of tight handcuffs.
2. Deliberate Indifference
Read leniently, the complaint also arguably states a claim for deliberate indifference to plaintiff's medical needs.
To assert a viable constitutional claim for inadequate medical care, a plaintiff must plead facts showing that (1) the deprivation of medical care is objectively "sufficiently serious" in light of a medical condition "that may produce death, degeneration, or extreme pain," Hill, 657 F.3d at 122, and (2) "the defendant-official . . . intentionally . . . or recklessly failed to act with reasonable care . . . even though the defendant-official knew, or should have known," that the alleged medical condition "posed an excessive risk to health or safety." Darnell, 849 F.3d at 35; see also Hill, 657 F.3d at 122-23.Ramirez v. Tatum, 17 Civ. 7801 (LGS), 2018 WL 6655600 at *6 (S.D.N.Y. Dec. 19, 2018) (Schofield, D.J.); accord Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017); Warren v. Ewanciw, 15 Civ. 8423 (JCM), 2019 WL 589488 at *9 (S.D.N.Y. Feb. 13, 2019) (McCarthy, M.J.); Van Hoven v. City of New York, 16 Civ. 2080 (GBD)(DCF), 2018 WL 4417842 at *1 (S.D.N.Y. Sept. 17, 2018) (Daniels, D.J.); Ryan v. Cty. of Nassau, 12-CV-5343 (JS)(SIL), 2018 WL 354684 at *3 (E.D.N.Y. Jan. 10, 2018). Where a deliberate indifference claim is based on a delay in providing medical care, "the seriousness inquiry is narrower [and] 'focuses on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone.'" Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006), quoting Smith v. Carpenter, 316 F.2d 178, 185 (2d Cir. 2003); accord Fortunato v. Bhopale, 12 Civ. 1630 (KPF), 2017 WL 3142070 at *7 (S.D.N.Y. July 24, 2017) (Failla, D.J.).
The complaint meets neither standard. As discussed above, the only injury alleged by plaintiff is swelling of his wrist and a cut of undefined seriousness. These are not serious medical conditions. Goodwin v. Kennedy, CV-13-1774 (SJF)(AKT), 2015 WL 1040663 at *12 (E.D.N.Y. Mar. 10, 2015) (multiple cuts and lacerations not serious; collecting cases); Ford v. Phillips, 05 Civ. 6646 (NRB), 2007 WL 946703 at *12 (S.D.N.Y. Mar. 27, 2007) (Buchwald, D.J.) ("Abrasions, a minor bruise, slight bleeding and scratches are not injuries that may produce death, degeneration or extreme pain, and no reasonable jury could find to the contrary."). In addition, there is nothing in the complaint that even remotely suggests that the delay in receiving medical care -- one hour -- resulted in an exacerbation of any condition.
With respect to the mens rea prong of a deliberate indifference claim, there is not even an allegation that Arias was involved in the one-hour delay in providing plaintiff with medical care. Nevertheless, even if I assume that he was involved in the one-hour delay, no facts are alleged that would have put Arias on notice that a 60-minute delay "posed an excessive risk to plaintiff's health or safety."
3. Assault Claim
Because I recommend that plaintiff's federal claims be dismissed, to the extent the complaint can be read as alleging a common law assault claim, I recommend that the your Honor decline to exercise supplemental jurisdiction over that claim and that the claim be dismissed without prejudice. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966); Sadallah v. City of Utica, 383 F.3d 34, 40 (2d Cir. 2004); Giordano v. City of New York, 274 F.3d 740, 754 (2d Cir. 2001).
4. Leave to Replead
As noted above, in certain circumstances, a detainee's claim based on tight handcuffing can give rise to a viable excessive force claim. Shamir v. City of New York, supra, 804 F.3d at 557. Because plaintiff may have a valid claim, if my recommendation that the complaint be dismissed is adopted, I further recommend that plaintiff be given leave to file an amended complaint within thirty days of your Honor's Order. Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991) ("[T]he court should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated."); accord Watley v. Katz, 631 F. App'x 74, 76 (2d Cir. 2016) (summary order); Pantoja v. Banco Popular, 545 F. App'x 47, 49 (2d Cir. 2013) (summary order) ("[D]istrict courts should generally not dismiss a pro se complaint without granting the plaintiff leave to amend.").
IV. Conclusion
Accordingly, for all the foregoing reasons, I respectfully recommend that plaintiff's complaint be dismissed to the extent it asserts claims for excessive force or deliberate indifference to a serious medical need. To the extent the complaint alleges a common law assault claim, I further recommend that it be dismissed without prejudice. If your Honor adopts my recommendation, I also recommend that plaintiff be granted leave to file an amended complaint within thirty days of your Honor's Order.
V. OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule 72 of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6(a). Such objections and responses thereto shall be filed with the Clerk of the Court with courtesy copies delivered to the Chambers of the Honorable George B. Daniels, United States District Judge, 500 Pearl Street, Room 1310, New York, New York 10007 and to the Chambers of the undersigned, 500 Pearl Street, Room 1670, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Daniels. FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983) (per curiam). Dated: New York, New York
March 1, 2019
Respectfully submitted,
/s/_________
HENRY PITMAN
United States Magistrate Judge Copy mailed to: Mr. Floyd McGarrell
Apt. 9
713 St. Nicholas Avenue
New York, New York 10031 Copies transmitted to: Counsel for Defendant