Opinion
1:20-cv-10126 (VEC) (SDA)
12-15-2022
Jonathon Morales, Plaintiff, v. Cynthia Brann et al., Defendants.
AMENDED REPORT & RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.
TO THE HONORABLE VALERIE E. CAPRONI, UNITED STATES DISTRICT JUDGE:
INTRODUCTION
Pro se Plaintiff Jonathon Morales (“Plaintiff” or “Morales”) brings this Pro se action under 42 U.S.C. § 1983, alleging that defendants Cynthia Brann (“Brann”), then Commissioner of the New York City Department of Correction (“DOC”); Patsy Yang (“Yang”), Senior Vice President of Correctional Health Services (“CHS”); and Margaret Egan (“Egan”), Executive Director of the New York City Board of Correction (collectively, “Defendants”) violated his constitutional rights while he was a pretrial detainee at the Vernon C. Bain Center (“VCBC”) by failing to take adequate steps to mitigate the threat of COVID-19. (Second Am. Compl. (“SAC”), ECF No. 10.) Currently before the Court is Defendants' unopposed motion for summary judgment. (Defs.' Mot. Summary J., ECF No. 52.)
For the reasons set forth below, I respectfully recommend that Defendants' motion be GRANTED.
FACTUAL BACKGROUND
I. Plaintiff
Morales was a detainee at the VCBC from at least November 21, 2020 through February 16, 2021. (Defs.' Rule 56.1 Statement of Undisputed Facts (“Defs.' SOF”), ECF No. 64, ¶ 2; see also SAC at PDF p. 4.) Morales alleges that Brann, Yang and Egan were deliberately indifferent by not following COVID-19 safety protocols set by the Center for Disease Control and then-Governor Andrew Cuomo and then-Mayor Bill DeBlasio, including regarding social distancing and capacity restrictions for indoor gatherings. (SAC at PDF p. 4.) Morales alleges that he made complaints to 311, which were ignored by Defendants even though they were “obligated by position and title to make sure [his] conditions of confinement [were] safe, healthy, etc.” (Id.) Morales alleges that that the beds in his dorm at the time (Dorm 2BA) were 3 to 4 inches behind one another and 3 to 4 feet across from one another with no dividers or other safety nets. (Id.) Morales further alleges that his dorm consistently was at 70-100% capacity, rather than 50%. (Id. at 4-5) On January 12, 2021 and January 14, 2021, three individuals in Morales' dorm tested positive for COVD-19. (Id. at 5.) Morales alleges that Defendants ignored his health problems of asthma and that he lost sleep and lost his appetite from fear and hopelessness. (Id.)
II. COVID-19 Protocols At VCBC
Additional countermeasures taken by DOC and CHS in response to COVID-19 are set forth in the Declarations of Tanisha Mills and Party Yang. (See Mills Decl., ECF No. 56; Yang Decl., ECF No. 55.) Here, the Court summarizes the countermeasures most relevant to Plaintiff's claims.
Beginning on or around May 4, 2020, all new admissions to VCBC were offered a COVID-19 test. (Defs.' SOF ¶ 6.) Inmates who agreed to be tested were held in a housing area for newly admitted individuals with pending COVID-19 test results. (Id.) Only when a negative test was received was the inmate transferred to general population housing. (Id.) New inmates who declined testing were quarantined for 10-14 days before they were housed. (Id.) If an inmate tested positive for COVID-19, that person was removed to a designated area and any housing areas where that inmate had been housed during the infectious period were designated as Asymptomatic Exposed (AE) units and offered subsequent rounds of testing. (Id. ¶¶ 50-52.)
DOC implemented various cleaning and sanitizing protocols. (Defs.' SOF ¶¶ 21-25.) Soap and other cleaning supplies, including sanitizing solutions, general and floor cleaners, “gentle scrub” and mops, were available in each unit's janitor closet and were provided upon request, except in those housing units where access to those materials presented a security issue. (Id. ¶ 25.) Where possible in dormitory housing units, DOC ensured that there was an empty bed in between people in custody. (Id. ¶ 32.) DOC also provided guidance to individuals to refrain from sitting on other people's beds, and to sleep head to foot if there was not enough separation between beds. (Id.) Further, DOC painted social distancing cues on chairs and benches in dayroom and intake areas in order to help individuals understand and maintain safe distance from one another in communal spaces. (Id. ¶ 33.) In January 2021, CHS began offering the COVID-19 vaccine to high-risk inmates and, in March 2021, began offering the COVID-19 vaccine to all incarcerated individuals. (Id. ¶¶ 11-12.)
PROCEDURAL HISTORY
Plaintiff's original Complaint, dated November 20, 2020, was filed along with 12 other VCBC detainees and was an amended version of an earlier complaint filed by 49 VCBC detainees. (Compl., ECF No. 2.) On December 1, 2020, the Court severed the matter into separate civil actions. (12/1/2020 Order, ECF No. 1.) By Order dated February 8, 2021, Judge Caproni granted Plaintiff leave to amend his pleading. (Order, ECF No. 9.) Plaintiff filed his Second Amended Complaint on March 9, 2021. (SAC, ECF No. 10.) On March 12, 2021, Judge Caproni referred this action to me for general pretrial management and dispositive motions. (Order of Ref., ECF No. 11.) At some point prior to April 14, 2021, Plaintiff was released from DOC custody. (See 4/14/2021 Order, ECF No. 18.) Plaintiff again was detained in or around April 2022 at a different DOC facility. (See 4/25/2022 Mem. End., ECF No. 47.)
Following discovery, Defendants filed the motion for summary judgment that is now before the Court on June 30, 2022, along with their supporting papers, including the requisite Notice to Pro Se Litigants Pursuant to Local Civil Rule 56.2. (Notice, ECF No. 58.) On July 5, 2022, I entered an Order reminding Plaintiff, who by then had been released from custody, that the deadline to file his opposition to Defendants' motion was August 1, 2022. (See 7/5/2022 Order, ECF No. 60.) After Defendants belatedly filed their Rule 56.1 Statement on July 8, 2022, I extended the deadline for Plaintiff to file his opposition until August 9, 2022. (7/8/2022 Order, ECF No. 63.) On August 16, 2022, I sua sponte granted Plaintiff a further extension until September 14, 2022 to file his opposition. (8/16/2022 Order, ECF No. 67.) The Order informed Plaintiff that failure to do so would result in the Court deciding the motion on Defendants' motion papers only. (See id.) As of the date of this Report and Recommendation, Plaintiff has not filed an opposition to Defendants' motion or sought an extension of time to do so.
Defendants have filed similar motions for summary judgment in four other cases that have been referred to this Court. See Parker v. Brann et al., No. 20-CV-09408; Prendergast v. Brann et al., No. 20-CV-09418; Molina v. Brann et al., No. 20-CV-09483; and Davidson v. Brann et al., No. 20-CV-09500.
LEGAL STANDARDS
I. Rule 56
Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). The moving party has the initial burden of demonstrating the absence of a disputed issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 321-23 (1986). A dispute concerning material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (quoting Anderson, 477 U.S. at 248). A disputed fact is “material” only if it “might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248. In making its determination, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Id. at 255.
“Although the same standards apply when a Pro se litigant is involved, the Pro se litigant should be given special latitude in responding to a summary judgment motion.” Caines v. Oudkerk, No. 17-CV-03060 (PGG), 2018 WL 3059653, at *2 (S.D.N.Y. June 20, 2018) (internal citation and quotation marks omitted); see also Tarrant v. City of Mount Vernon et al., No. 20-CV-09004 (PMH), 2022 WL 17070062, at *3 (S.D.N.Y. Nov. 17, 2022) (noting “special solicitude” afforded Pro se litigants and that it is through that “lens of leniency” that courts must consider motions for summary judgment against pro se plaintiffs). Where “the non-moving party chooses the perilous path of failing to submit a response to a summary judgment motion, the district court may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial.” Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (internal quotation marks omitted). “[I]n determining whether the moving party has met this burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts contained in the moving party's Rule 56.1 statement” and instead “must be satisfied that the citation to evidence in the record supports the assertion.” Id.
II. Section 1983
“To state a claim under Section 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a ‘state actor.'” Griffin v. Corporation Counsel et al., No. 22-CV-08521 (LTS), 2022 WL 16926117, at *2 (S.D.N.Y. Nov. 14, 2022) (citing West v. Atkins, 487 U.S. 42, 48-49 (1988)). “A pretrial detainee's claim for unconstitutional conditions of confinement is governed by the Fourteenth Amendment Due Process Clause, which requires that officers take reasonable measures to guarantee the safety of the inmates[.]” Ungar v. City of New York, No. 21-1384-CV, 2022 WL 10219749, at *1 (2d Cir. Oct. 18, 2022) (citing Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017)).
To succeed on a conditions of confinement claim, a pretrial detainee must satisfy two prongs, “an ‘objective prong' showing that the challenged conditions were sufficiently serious to constitute objective deprivations of the right to due process, and a ‘subjective prong'-perhaps better classified as a ‘mens rea prong' or ‘mental element prong'-showing that the officer acted with at least deliberate indifference to the challenged conditions.” Darnell, 849 F.3d at 29. To establish the objective prong, “the inmate must show that the 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.” Id. at 30 (internal citation omitted). To establish the mens rea prong, “the pretrial detainee must prove that the defendant-official acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendantofficial knew, or should have known, that the condition posed an excessive risk to health or safety.” Id. at 35.
“[A] defendant in a § 1983 action may not be held liable for damages for constitutional violations merely because [he or she] held a high position of authority.” Blackv. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). “Instead, a plaintiff must plead and prove ‘that each Government-official defendant, through the official's own individual actions, has violated the Constitution.'” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 676); see also Boley v. Durets, 687 Fed.Appx. 40, 41 (2d Cir. 2017) (“As a fundamental prerequisite to establishing a § 1983 claim, a plaintiff must show the defendants' personal involvement in the alleged constitutional violation.”) “Assertions of personal involvement that are merely speculative are insufficient to establish a triable issue of fact.” Tarrant, 2022 WL 17070062, at *4 (citing Keesh v. Quick, No. 19-CV-08942, 2022 WL 2160127, at *9 (S.D.N.Y. June 15, 2022)).
DISCUSSION
Defendants argue that they should be granted summary judgment on Plaintiff's claim that the conditions of his confinement violated the Constitution “because the undisputed facts demonstrate that Defendants Brann, Yang, and Egan were not deliberately indifferent to any unreasonable risk of harm during the times relevant to the Complaint.” (Defs.' Mem., ECF No. 57, at 11.) Defendants argue both that no reasonable jury could find for Plaintiff on the objective prong, i.e., that the challenged conditions posed a substantial risk of serious harm; and that no reasonable jury could find for Plaintiff on the mens rea prong, which requires Plaintiff to show that Defendants intentionally or recklessly failed to act with reasonable care to mitigate the risk that the alleged conditions posed to Plaintiff. (Id. at 12-17.) Defendants further argue that they are entitled to summary judgment because Plaintiff has not alleged that Brann, Yang or Egan personally were involved in the alleged violations; cannot sustain viable claims against Defendants in their official capacities; and has failed to exhaust his available administrative remedies. (Id. at 17-24.)
I. Conditions Of Confinement
It is well settled that “correctional officials have an affirmative obligation to protect inmates from infectious disease.” Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996). Moreover, “[i]t is ‘undisputed-and, indeed, by now common knowledge-that COVID-19 is a highly dangerous disease that poses a significant risk of severe illness and death.'” Gil-Cabrera v. Dep't of Corr., No. 20-CV-09493 (LTS) (SDA), 2021 WL 5282620, at *4-5 (S.D.N.Y. Sept. 27, 2021), report and recommendation adopted sub nom. Gil-Cabrera v. City of New York, 2021 WL 5910055 (S.D.N.Y. Dec. 14, 2021) (quoting James v. Annucci, No. 20-CV-06952 (CJS), 2021 WL 3367530, at *2 (W.D.N.Y. Aug. 3, 2021)); see also Fernandez-Rodriguez v. Licon-Vitale, 470 F.Supp.3d 323, 349 (S.D.N.Y. 2020) (“Put simply, COVID-19 stands with the roster of infectious diseases from which correctional officials have an affirmative obligation to protect inmates.”) (citing Jolly, 76 F.3d at 477) (internal quotation marks omitted). Accordingly, courts have found that “an inmate can face a substantial risk of serious harm in prison from COVID-19 if a prison does not take adequate measures to counter the spread of the virus.” Chunn v. Edge, 465 F.Supp.3d 168, 200 (E.D.N.Y. 2020); see also Caraballo v. Dep't of Corr. City of New York, No. 22-CV-00971 (JLR), 2022 WL 16555313, at *4 (S.D.N.Y. Oct. 31, 2022) (“under certain circumstances, an inmate's exposure to COVID-19 could ‘pose an unreasonable risk of serious damage to his health,' thereby satisfying the objective prong”) (quoting Shomo v. Dep't of Corr. & Cmty. Supervision, No. 21-CV-00128 (PMH), 2022 WL 1406726, at *12 (S.D.N.Y. May 4, 2022)). The relevant inquiry is whether a petitioner has shown a substantial risk of serious harm from COVID-19 at a correctional facility in light of the countermeasures that the facility has in place. See Chunn, 465 F.Supp.3d at 201.
Here, the Court need not decide whether there is a genuine issue of material fact as to the objective prong, however, because Plaintiff cannot satisfy the mens rea prong. Even assuming Defendants were aware of the risks of COVID-19 by November 2020, the record is devoid of evidence that Brann, Yang or Egan “intentionally . . . impose[d] the alleged condition[s], or recklessly failed to act with reasonable care to mitigate the risk that the condition[s] posed” to Plaintiff. See Caraballo, 2022 WL 16555313, at *5 (quoting Darnell, 849 F.3d at 35). To the contrary, Defendants have adduced significant evidence as to countermeasures put in place by DOC and CHS to minimize the risk to inmates of COVID-19. (See generally Mills Decl.; Yang Decl.) And “[e]ven assuming [defendants'] response to COVID-19 was imperfect, or negligent, it is not enough to support a finding of deliberate indifference.” Jones v. Westchester Cty., No. 20-CV-08542 (PMH), 2022 WL 1406591, at *4-5 (dismissing § 1983 claims alleging failure by jail officials to provide proper care and adequate protection to prevent spread of COVID-19); see also Gibson v. Rodriguez, No. 20-CV-00953 (KAD), 2021 WL 4690701, at *7 (D. Conn. Oct. 7, 2021) (granting summary judgment to defendants on claim that they were deliberately indifferent to the risk posed by COVID-19 in view of reasonable countermeasures).
Moreover, Plaintiff has not set forth facts regarding any individual actions taken by Brann, Yang or Egan with respect to the alleged violations. The only allegations in the Second Amended Complaint as to Brann, Yang and Egan are that they did not follow COVID-19 protocols set by the CDC and state and city government regarding capacity limitations and social distancing requirements and ignored Plaintiff's complaints. (SAC at PDF p. 4.) Even if Plaintiff could establish that Defendants were aware of Plaintiff's complaints, that is not enough to establish personal involvement. See Shomo, 2022 WL 1406726, at *7 (“Plaintiff's allegations that the Individual Defendants held certain positions within DOCCS and denied his grievances are simply insufficient.”); see also McIntosh v. United States, No. 14-CV-07889, 2016 WL 1274585, at *16 (S.D.N.Y. Mar. 31, 2016) (“[M]ere receipt of a complaint or grievance from an inmate is insufficient to establish personal involvement[.]”). Accordingly, Plaintiff's claims also should be dismissed for lack of personal involvement. See Tangreti, 983 F.3d at 618 (liability exists only where the “defendant, through the official's own individual actions, has violated the Constitution”); see also Shomo, 2022 WL 1406726, at *7-8 (dismissing § 1983 claims for lack of personal involvement) (citing cases); Gibson v. State of New York et al., No. 21-CV-04251 (GHW), 2021 WL 4267683, at *1-2 (S.D.N.Y. Sept. 20, 2021) (dismissing § 1983 claims against DOC supervisors alleging deliberate indifference to serious risk of contracting COVID-19 when complaint lacked facts about how supervisory officials were personally involved in alleged violations).
According to a declaration submitted by Defendants, during the period November 21, 2020 through May 31, 2021, Plaintiff made no electronic complaints and submitted no grievances. (See Grening Decl., ECF No. 54, ¶¶ 3-4.)
To the extent Plaintiff asserts claims against Defendants in their official capacities, which are equivalent to claims “against the entity of which an officer is an agent[,]” Crosby v. Petermann, No. 18-CV-09470 (JGK), 2020 WL 1434932, at *4 (S.D.N.Y. Mar. 24, 2020) (citing Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)), the Court recommends that those claims be dismissed since Plaintiff has failed to establish that his constitutional rights have been violated. See Vickers-Pearson v. City of New York, No. 18-CV-08610 (KPF), 2020 WL 5732028, at *9 (S.D.N.Y. Sept. 24, 2020) (“there can be no municipal liability without an underlying constitutional violation”) (granting summary judgment).
II. Failure To Exhaust Administrative Remedies
The Court also agrees with Defendants that they are entitled to summary judgment because Plaintiff has failed to exhaust his administrative remedies as provided by the Prison Litigation Reform Act (“PLRA”). (See Defs.' Mem at 21-24.)
The PLRA states “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This action falls within the purview of this provision as the Supreme Court has established “[t]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes[.]” Porter v. Nussle, 534 U.S. 516, 532 (2002); see also 18 U.S.C. § 3626(g)(2) (defining the term “civil action with respect to prison conditions” to mean “any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison[.]”).
“As the Supreme Court and Second Circuit have instructed, ‘proper exhaustion . . . means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).'” Ortiz v. Annucci, No. 17-CV-03620 (RJS), 2019 WL 1438006, at *8 (S.D.N.Y. Mar. 29, 2019) (quoting Hernandez v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009)); see also Ford v. Aramark, No. 18-CV-02696 (NSR), 2020 WL 377882, at *4 (S.D.N.Y. Jan. 23, 2020) (“[T]o satisfy the exhaustion requirement, an inmate must use all available administrative mechanisms, including appeals, through the highest level for each claim.”) (internal quotation marks omitted).
The procedure for exhaustion is not defined by the PLRA, but rather by the rules of the facility in which the inmate-plaintiff is incarcerated. See Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009). “Because failure to exhaust is an affirmative defense . . . defendants bear the initial burden of establishing, by pointing to legally sufficient source[s] such as statutes, regulations, or grievance procedures, that a grievance process exists and applies to the underlying dispute[.]” Hubbs v. Suffolk Cnty Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015) (internal quotation marks omitted). If the defendants satisfy this initial burden, it is then up to the plaintiff to “demonstrate that other factors . . . rendered a nominally available procedure unavailable as a matter of fact.” Id. “Exhaustion, even where the facts are disputed, is a matter of law for the Court to decide.” Brooks v. Mullen, No. 14-CV-06690 (FPG), 2020 WL 6158614, at *5 (W.D.N.Y. Oct. 21, 2020); see also Ortiz, 2019 WL 1438006, at *9 (“factual disputes related to administrative exhaustion are properly resolved by the Court rather than a jury”) (citing Messa v. Goord, 652 F.3d 305, 309 (2d Cir. 2011)).
At Rikers Island, which includes VCBC, “grievance procedures are governed by the Inmate Grievance and Request Program (‘IGRP').” Hickman v. City of New York, No. 20-CV-04699 (RA) (OTW), 2021 WL 3604786, at *3 (S.D.N.Y. Aug. 12, 2021). Courts in this Circuit routinely take judicial notice of the IGRP. See Hickman, 2021 WL 3604786, at *3. “The IGRP applies to ‘[a]ny inmate who is directly and personally affected by an issue, condition, practice, service, or lack of an accommodation with regard to any issue that may arise in connection with their incarceration or action relating to their confinement.'” Massey v. City of New York, No. 20-CV-05665 (GBD) (DF), 2021 WL 4943564, at *7 (S.D.N.Y. Aug. 30, 2021) (alteration in original).
“The IGRP involves four steps: 1) submission of a complaint for informal resolution; 2) in the event an informal resolution is not reached within five days, request of a formal hearing; 3) appeal to the commanding officer; and 4) appeal to the Central Office Review Committee.” Hickman, 2021 WL 3604786, at *3; see also N.Y.C. Dep't of Corr., Directive 3376R-A at § V available at https://www1.nyc.gov/assets/doc/downloads/directives/Directive3376R-A.pdf (last visited December 14, 2022). “The inmate must take each of the four steps to exhaust the administrative grievance process.” Sanders v. City of New York, No. 16-CV-07426 (PGG), 2018 WL 3117508, at *4 (S.D.N.Y. June 25, 2018).
Defendants have adduced evidence that Plaintiff did not pursue any of the steps of the grievance process. (Grening Decl. ¶¶ 1-4; Defs.' SOF ¶¶ 71-75.) Even if Plaintiff made complaints to 311 as he alleged, that is not sufficient to satisfy the exhaustion requirements. See Massey, at *7 (a 311 call alone is not sufficient to satisfy the exhaustion requirements of the PLRA). Plaintiff has not presented any evidence that he exhausted his administrative remedies or that such remedies were unavailable. Accordingly, I recommend that Defendants motion for summary judgment be granted on this ground as well. See Handy v. City of New York, No. 19-CV-03885 (MKV) (OTW), 2021 WL 4482548, at *6 (S.D.N.Y. Aug. 27, 2021), report and recommendation adopted, 2021 WL 4481600 (S.D.N.Y. Sept. 30, 2021) (granting summary judgment for failure to exhaust when there were “neither allegations in the pleadings nor evidence in the record that Plaintiff exhausted his administrative remedies or that such remedies were not available to Plaintiff.”); see also Cosme v. Faucher, No. 21-CV-01341 (SVN), 2022 WL 16540861, at *4 (D. Conn. Oct. 28, 2022) (granting summary judgment for failure to exhaust when plaintiff “presented no evidence in opposition to Defendants' motion showing that he exhausted his administrative remedies.”).
III. Equal Protection
To the extent Plaintiff alleges a violation of the Equal Protection Clause of the Fourteenth Amendment, I recommend that such claim be dismissed because Plaintiff has not demonstrated that he was “treated differently than others who are similarly situated.” Singleton v. City of New York, No. 20-CV-08570 (ALC), 2022 WL 4620174, at *4 (S.D.N.Y. Sept. 30, 2022) (citing Gil-Cabrera, 2021 WL 5282620, at *3). Plaintiff does not allege that he was treated differently than other inmates, and to the extent he argues that inmates as a class were treated differently than those not in custody, “inmates are not, by virtue of being inmates, members of a protected class.” Id. (internal quotation marks and citations omitted).
CONCLUSION
For the foregoing reasons, I respectfully recommend that Defendants' motion for summary judgment be GRANTED.
SO ORDERED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Any requests for an extension of time for filing objections must be addressed to Judge Caproni.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 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).