Opinion
9:21-cv-00986-MAD-TWD
08-07-2023
BERNABE ENCARNACION, Plaintiff, v. LT. CONNORS, et al., Defendants.
BERNABE ENCARNACION LETITIA JAMES STEVE NGUYEN, ESQ.
BERNABE ENCARNACION
LETITIA JAMES STEVE NGUYEN, ESQ.
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
This matter has been referred for a report and recommendation by the Hon. Mae A. D'Agostino, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). At all times relevant, Plaintiff was an incarcerated individual in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”) at Shawangunk Correctional Facility (“Shawangunk”). (Dkt. No. 1.) On September 3, 2021, Plaintiff commenced this action pursuant to 42 U.S.C. § 1983 alleging a First Amendment retaliation claim against Corrections Officer (“CO”) Vitarius, and Eighth Amendment conditions of confinement claims against Lt. Connors, CO Olivo, and CO Vitarius. Id.; (see also Dkt. No. 8 at 17-21, 27, 33.)
Although CO Vitarius' last name is spelled “Vitarious” in previous filings, the Court uses the spelling provided in his declaration. (Dkt. No. 24-4 at 1, 5.) The Clerk is directed to correct the spelling to Vitarius on the docket.
Currently before the Court is Defendants' motion for summary judgment. (Dkt. No. 242.) For the reasons set forth below, the Court recommends Defendants' motion be granted in part and denied in part.
II. LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is warranted if “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); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52 (1986). The moving party bears the initial burden of demonstrating “the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Salahuddin v. Gourd, 467 F.3d 263, 272-73 (2d Cir. 2006). A fact is “material” if it “might affect the outcome of the suit under the governing law,” and is genuinely in dispute “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). The movant may meet this burden by showing the nonmoving party has “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing there is a genuine issue for trial. Salahuddin, 467 F.3d at 273. In that context, the nonmoving party must do more than “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
The Second Circuit instructs that on summary judgment motions, “‘[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.'” Jeffreys, 426 F.3d at 554 (alteration and emphasis in original) (quoting Anderson, 477 U.S. at 252). In other words, “a nonmoving party must offer some hard evidence showing that [his] version of the events is not wholly fanciful.” Id. (citation and internal quotation marks omitted). Accordingly, statements “that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obligated to “read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, that status “does not relieve [a pro se] plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (internal quotation marks and citation omitted).
In applying the summary judgment standard, the district court should not weigh evidence or assess the credibility of witnesses. Hayes v. New York City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996); Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (“Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.”)
III. DISCUSSION
On July 10, 2018, Plaintiff was placed in a cell in the Special Housing Unit (“SHU”) at Shawangunk. (Dkt. No. 1 at 1, 5.) Plaintiff claims while he was in the SHU, CO Vitarius, CO Olivo, and “all of the other Officers” in the SHU refused to pick up Plaintiff's laundry, “violated” his kosher meal trays by opening the sealed items on the tray, harassed him as they passed his cell, and did not allow Plaintiff to use his medically prescribed walking boots or cane. Id. at 6, 12-13. Because he was denied access to his boots and cane, Plaintiff could not leave his cell to shower or exercise during his 60 day stay in the SHU. (Dkt. No. 1 at 6, 53; Dkt. No. 24-3 at 62.) Plaintiff reported these “violation[s] and deprivations” verbally and in written grievances to Lt. Connors and Supt. Collado, among other supervisors. (Dkt. No. 1 at 6.) Supt. Collado responded, in relevant part, Plaintiff was not allowed his cane in the SHU, but could have his medical boots if he had a valid permit. Id. at 6, 53. Plaintiff then showed Supt. Collado's response along with his medical permit for his boots to Lt. Connors, CO Vitarius, and CO Olivo. Id. at 6, 50. In response, they began heating up everything in his kosher meal trays including cold cereal, fresh fruit, and “cold saled” making the food “unconsumable.” Id. at 7. As a result of being “deprive[d]” of his food, he lost 27 pounds while in the SHU. Id. Plaintiff also alleges CO Vitarius threw out his medical boots in retaliation for filing grievances against him. Id.
Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
A. Lt. Connors' Personal Involvement
Defendants seek summary judgment and dismissal of Plaintiff's Eighth Amendment conditions of confinement claim against Lt. Connors for lack of personal involvement. (Dkt. No. 24-2 at 8-9.) For the reasons set forth below, the Court recommends granting summary judgment as to this claim.
“[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (internal quotation marks and citation omitted). In order to prevail on a Section 1983 cause of action against an individual, a plaintiff must show “a tangible connection between the acts of a defendant and the injuries suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). “[D]irect participation as a basis of liability in this context requires intentional participation in the conduct constituting a violation of the victim's rights by one who knew of the facts rendering it illegal.” Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001) (internal quotation marks and citation omitted).
The Second Circuit has concluded “there is no special rule for supervisory liability” and has held a “plaintiff must plead and prove ‘that each Government-official defendant, through the official's own individual actions, had violated the Constitution.'” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). To avoid summary judgment, a plaintiff must establish the defendant violated the constitution by his or her “own conduct, not by reason of [the defendant's] supervision of others who committed the violation” and cannot “rely on a separate test of liability specific to supervisors.” Id. at 619. Thus, a “supervisor's ‘mere knowledge of his subordinate's discriminatory purpose' is not sufficient because that knowledge does not ‘amount[ ] to the supervisor's violating the Constitution.'” Id. at 616-17 (alteration in original) (quoting Iqbal, 556 U.S. at 677). “Failing to correct another officer's violation does not suffice; rather . . . the ‘active conduct' standard necessary to impose § 1983 liability on a supervisor requires the supervisor either directly participate in the alleged constitutional violation or create a policy or custom under which the alleged unconstitutional practices occurred.” Harrison v. Broderick, No. 18-CV-821JLS(F), 2022 WL 16837366, at *11 (W.D.N.Y. Aug. 18, 2022) (quoting Tangreti, 983 F.3d at 617 n.4), report and recommendation adopted, 2022 WL 16836406 (W.D.N.Y. Nov. 8, 2022).
A personal involvement inquiry on summary judgment “examines only whether there is record evidence to support a factfinder's conclusion that the individual under consideration was involved in the alleged conduct.” Brandon v. Schroyer, No. 9:13-CV-0939 (TJM/DEP), 2016 WL 1638242, at *14 (N.D.N.Y. Feb. 26, 2016), report and recommendation adopted, 2016 WL 1639904 (N.D.N.Y. Apr. 25, 2016), rev'd on other grounds sub nom. Brandon v. Kinter, 938 F.3d 21 (2d Cir. 2019).
The record evidence establishes Lt. Connors was not personally involved in any of the constitutional violations Plaintiff allegedly experienced. Due to his rank, Lt. Connors was not responsible for confirming callouts or conducting escorts to showers and recreation. (Dkt. No. 24-3 at 3.) Nor was he responsible for collecting laundry or receiving, delivering, and/or inspecting Plaintiff's food. Id. at 3, 6. Moreover, Plaintiff does not assert, beyond general conclusory allegations, Lt. Connors took part in tampering with his food or denying him showers, recreation, laundry, his medical boots, and his cane. (See Dkt. No. 1 at 6-7); Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (“Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact.”). Lt. Connors also denies knowledge of any other officers doing as such. (Dkt. No. 24-3 at 3, 4, 6.) While Plaintiff claims generally Lt. Connors was aware of this activity due to the grievances Plaintiff had filed, mere knowledge, and even failure to correct such behavior, is not enough to constitute personal involvement in the alleged violations. (Dkt. No. 1 at 6-7; Dkt. No. 28 at 6-7); see also Tangreti, 983 F.3d at 616-17; Harrison, 2022 WL 16837366, at *11. Finally, Plaintiff does not assert Lt. Connors created a policy or custom under which these alleged unconstitutional practices occurred. (See generally Dkt. Nos. 1, 28, 28-1); see also Harrison, 2022 WL 16837366, at *11. Therefore, Plaintiff has failed to raise a genuine issue of material fact and Lt. Connors is entitled to summary judgment due to lack of personal involvement.
For these reasons, the Court recommends granting Defendants' motion with regard to Plaintiff's Eighth Amendment claims against Lt. Connors.
B. Eighth Amendment Conditions of Confinement Claims
The Eighth Amendment protects prisoners from “cruel and unusual punishment” at the hands of prison officials. Wilson v. Seiter, 501 U.S. 294, 296-97 (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976). This includes punishments that “involve the unnecessary and wanton infliction of pain.” Gregg v. Georgia, 428 U.S. 153, 173 (1976). “To the extent that [prison] conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). The Second Circuit has held in order for a plaintiff
[t]o demonstrate that the conditions of his confinement constitute cruel and unusual punishment, the plaintiff must satisfy both an
objective test and a subjective test. First, the plaintiff must demonstrate that the conditions of his confinement result in unquestioned and serious deprivations of basic human needs. Second, the plaintiff must demonstrate that the defendants imposed those conditions with deliberate indifference.McAllister v. Garrett, No. 10-CIV-3828, 2011 WL 3875423, at *10 (S.D.N.Y. Sept. 1, 2011) (alteration in original) (quoting Welch v. Bartlett, 125 Fed.Appx. 340, 342 (2d Cir. 2005)).
Although the Constitution does not mandate a comfortable prison setting, prisoners are entitled to “basic human needs-e.g., food, clothing, shelter, medical care, and reasonable safety.” Brown v. Doe, No. 13 Civ 8409, 2014 WL 5461815, at *6 (S.D.N.Y. Oct. 28, 2014) (internal quotation marks and citations omitted). “Therefore, to establish the objective element of an Eighth Amendment violation, a prisoner ‘must prove that the conditions of his confinement violate contemporary standards of decency.'” Id. (quoting Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002)).
Under the subjective element, deliberate indifference “involves culpable recklessness, i.e., an act or a failure to act . . . that evinces a conscious disregard of a substantial risk of serious harm.” Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996)) (internal quotation marks omitted). “[T]he subjective element of deliberate indifference ‘entails something more than mere negligence . . . [but] something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.'” Hathaway, 99 F.3d at 553 (quoting Farmer v. Brennan, 511 U.S. 825, 826, (1994)). Put another way, “the officials acted, or omitted to act, with a sufficiently culpable state of mind, i.e., with deliberate indifference to inmate health or safety.” Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (internal quotation marks and citations omitted).
“Restrictive SHU conditions on their own do not, per se, rise to the level of cruel and unusual punishment.” Booker v. Maly, No. 12-CV-246 (NAM/ATB), 2014 WL 1289579, at *16 (N.D.N.Y. Mar. 31, 2014). “Normal” SHU conditions include being kept in solitary confinement for twenty-three hours per day, provided one hour of exercise in the prison yard per day, and permitted two showers per week. Ortiz v. McBride, 380 F.3d 649, 655 (2d Cir. 2004).
1. Food Tampering and Kosher Meals
Plaintiff asserts Eighth Amendment conditions of confinement claims against COs Olivo and Vitarius for allegedly tampering with his kosher meals. (Dkt. No. 1 at 6-7.) Specifically, Plaintiff claims CO Olivo, CO Vitarius, and other COs “opened his kosher meal trays and each food items in his kosher meals 3 times a day.” (Dkt. No. 1 at 6.) According to Plaintiff, “[a]s soon as they open it, that food is no longer Kosher.” (Dkt. No. 24-6 at 22.) Plaintiff further alleges COs Olivo and Vitarius microwaved and heated up “everything inside his kosher tray” including “cold cereal, fresh fruits-banana, apple or orange and cold saled daily” making the food “unconsumable.” (Dkt. No. 1 at 7.) As a result, he refused to eat the alleged non-kosher food and lost 27 pounds while in the SHU. Id.
While these allegations primarily relate to the retaliation claim against CO Vitarius, the Court finds they are also relevant to the discussion of the alleged food tampering. See infra Section III.D.
“[T]he Eighth Amendment prohibition against cruel and unusual punishment does require that prisoners be served ‘nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it.'” Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983) (quoting Ramos v. Lamm, 639 F.2d 559, 571 (10th Cir. 1980)). “In food tampering claims a plaintiff must allege that he suffered an actual injury, ‘the mere allegation of food tampering alone [ ] is insufficient to establish a claim under the Eighth Amendment.'” Calvin v. Schmitt, No. 15 CV-6584 (NSR), 2017 WL 4280683, at *5 (S.D.N.Y. July 7, 2017) (alteration in original) (quoting Harris v. Ashlaw, No. 9:07-CV-0358 (LEK/DEP), 2007 WL 4324106, at *5 (N.D.N.Y. Dec. 5, 2007)).
To begin, while Plaintiff claims all of his food was microwaved and was therefore “unconsumable,” he fails to allege the food provided to him at Shawangunk was prepared and served under conditions which would present an immediate danger to his health and wellbeing. See Dove v. Broome Cty. Corr. Facility, No. 9:10-CV-0002 (DNH/DEP), 2011 WL 1118452, at *11 (N.D.N.Y. Feb. 17, 2011), (recommending dismissal of Eighth Amendment claims where plaintiff failed to allege the food provided in prison was prepared and served in a manner that endangered his health), report and recommendation adopted, 2011 WL 867072 (N.D.N.Y. Mar. 10, 2011); see also Robles, 725 F.2d at 15.
Further, denial of kosher food does not necessarily rise to an Eighth Amendment violation. See Ackridge v. Aramark Corr. Food Servs., No. 16-CV-6301 (KMK), 2018 WL 1626175, at *20 (S.D.N.Y. Mar. 30, 2018); Wardv. Goord, No. 9:06-CV-1429 (DNH/DRH), 2009 WL 102928, at *7 (N.D.N.Y. Jan. 13, 2009). Here, on July 16, 2018, Plaintiff filed a grievance complaining COs were tampering with his kosher meals by removing the plastic wrappers “somewhere outside [his] presence” thus making the food non-kosher. (Dkt. No. 1 at 53; Dkt. No. 24-3 at 62.) In response, Supt. Collado explained the cellophane used around the kosher trays is not allowed in the SHU and is removed. (Dkt. No. 1 at 53.) However, the “food inside the tray is still wrapped and the meal is considered Kosher.” Id. Even if the food was not, in fact, kosher and “plaintiff may claim that he did not eat the non-kosher meals provided to him[,] such a claim, while perhaps cognizable under the First Amendment or the [Religious Land Use and Institutionalized Persons Act], does not also implicate cruel and unusual punishment in violation of the Eighth Amendment.” Dove, 2011 WL 1118452, at *11. Moreover, Plaintiff testified he would still sometimes eat the fruit and oatmeal provided to him and “thus[,] the deprivation of kosher meals cannot reasonably be expected to result in plaintiff not eating.” Id.; (Dkt. No. 24-6 at 24.) “Indeed, the plaintiff has not [and cannot] provide[ ] any authority for the proposition that denial of [kosher] food in prison would rise to the level necessary to be deemed cruel and unusual under the Eighth Amendment.” Dove, 2011 WL 1118452, at *11 (internal quotation marks and citations omitted) (alterations in original).
Therefore, the Court recommends granting summary judgment as to the Eighth Amendment conditions of confinement claims against COs Olivo and Vitarius with regard to Plaintiff's food tampering and kosher meal claims. See Ackridge, 2018 WL 1626175, at *20 (finding the plaintiff failed to allege a sufficiently serious deprivation required to state an Eighth Amendment claim when he chose not to eat the non-kosher meals provided to him and failed to plead the denial of kosher meals posed an unreasonable risk of serious damage to his health); see also Ward, 2009 WL 102928, at *7 (“In this case, [the plaintiff] has failed to establish an Eighth Amendment claim based upon denial of kosher meals during his transport . . . . he has neither proven the existence of imminent danger to his health and well-being nor an actual injury.”)
2. Denial of Laundry
Plaintiff alleges COs Olivo and Vitarius refused to pick up his laundry throughout his stay in the SHU. (Dkt. No. 1 at 6, 16.) Defendants assert Unit Officers took requests for laundry service every Monday morning at Shawangunk and once cleaned, the laundry was returned on Thursday. (Dkt. No. 24-2 at 13.) Moreover, according to the SHU logs provided by Defendants, CO Olivo only worked one Monday and CO Vitarius only worked two Mondays during Plaintiff's SHU confinement. (Dkt. No. 24-2 at 13; Dkt. No. 24-4 at 3, 30, 34, 35; Dkt. No. 24-5 at 3, 30.)
“Prisoners are entitled to ‘reasonably adequate sanitation' and ‘personal hygiene' under the Eighth Amendment, particularly over long periods of time.” Lunney v. Brureton, No. 04 CIV. 2438 (LAK) (GWG), 2005 WL 121720, at *8 (S.D.N.Y. Jan. 21, 2005) (quoting Howard v. Adkison, 887 F.2d 134, 137 (8th Cir. 1989)), report and recommendation adopted, 2005 WL 433285 (S.D.N.Y. Feb. 23, 2005). This includes the “the right to adequate laundry services.” Id.
There is no Eighth Amendment violation, however, when inmates are provided the opportunity and the supplies to wash their own clothes. Id.; Benjamin v. Fraser, 161 F.Supp.2d 151, 178-79 (S.D.N.Y. 2001) (availability of sinks and laundry detergent or bar soap sufficient under the Eighth Amendment), aff'd in relevant part and vacated in part, 343 F.3d 35 (2d Cir. 2003); Lunney v. Brureton II, 04 Civ. 2438 (LAK) (GWG), 2007 WL 1544629, at *14 (S.D.N.Y. May 29, 2007) (alleging inadequate laundry services without alleging inability to wash clothing did not violate Eighth Amendment), objections overruled, 2007 WL 2050301 (S.D.N.Y. July 18, 2007); Townsend v. Clemons, No. 12-CV-03434 (RJS) (SN), 2013 WL 818662, at *8 (S.D.N.Y. Jan. 30, 2013) (finding plaintiff had not alleged a sufficiently serious deprivation because he did not plead he could not clean his clothes at all), report and recommendation adopted, 2013 WL 868605 (S.D.N.Y. Mar. 4, 2013).
In his complaint, Plaintiff did not allege he could not clean his clothes at all, but only that Defendants would not pick up his laundry. (See Dkt. No. 1 at 6-7, 13, 14-15, 16.) According to Lt. Connors, “[o]ftentimes, incarcerated individuals decline[] outside laundry, preferring to wash clothes in their cell sinks.” (Dkt. No. 24-3 at 3.) Plaintiff did not allege he was denied the opportunity to do the same. For the reasons discussed herein, the Court recommends granting summary judgment as to the Eighth Amendment claims against COs Olivo and Vitarius with regard to the alleged denial of laundry.
In his response to Defendants' summary judgment motion, Plaintiff claims he was denied “an alternate opportunity or means to clean-wash his linens and clotheing himself.” (Dkt. No. 28-1 at 25.) However, this alleged inability to clean his clothes in his cell is not referenced anywhere in Plaintiff's complaint. (See Dkt. No. 1 at 6-7, 13, 14-15, 16.); see Lunney II, 2007 WL 1544629 at *14; Townsend, 2013 WL 818662 at *8. Moreover, when he testified at his deposition as to the factual bases of this claim, he made no mention he was unable to clean his clothes at all. (Dkt. No. 24-6 at 19-21, 44-45.) Accordingly, the Court has not considered this new fact in analyzing this claim on summary judgment. See, e.g., Feldman v. Sanders Legal Grp., 914 F.Supp.2d 595, 600 n.5 (S.D.N.Y. 2012) (declining to consider plaintiff's arguments in opposition brief that were “based on facts and theories that are not in the Complaint”); Tomlins v. Vill. of Wappinger Falls Zoning Bd. of Appeals, 812 F.Supp.2d 357, 363 n.9 (S.D.N.Y. 2011) (declining to consider facts raised for the first time in opposition papers, “as they do not form the basis for plaintiff's claims, and the complaint may not be amended simply by raising new facts in opposition to Defendants' motion”); Scott v. City of N.Y. Dep't of Corr., 641 F.Supp.2d 211, 229 (S.D.N.Y. 2009) (explaining facts and theories raised for the first time in opposition papers should not be considered in resolving a summary judgment motion), aff'd 445 Fed. App'x. 389 (2d Cir. 2011); Southwick Clothing LLC v. GFT (USA) Corp., No. 99-cv-10452 (GBD), 2004 WL 2914093, at *6 (S.D.N.Y. Dec. 15, 2004) (“A complaint cannot be amended merely by raising new facts and theories in plaintiffs' opposition papers, and hence such new allegations and claims should not be considered in resolving the motion [for summary judgment].”).
Even if Plaintiff had been denied laundry all eight Mondays he was in the SHU, “[a] successful § 1983 claim holds an individual personally responsible for the role his or her own acts or omissions played in violating someone's rights.” Zielinski v. Annucci, 547 F.Supp.3d 227, 236 (N.D.N.Y. 2021) (alteration in original) (quoting Dukes v. City of Albany, 492 F.Supp.3d 4, 12 (N.D.N.Y. 2020)) (internal quotation marks omitted). The record indicates CO Olivo only worked one Monday and CO Vitarius only worked two Mondays during Plaintiff's SHU confinement. (Dkt. No. 24-2 at 13; Dkt. No. 24-4 at 3, 30, 34, 35; Dkt. No. 24-5 at 3, 30.) Even taking into account the other five Mondays Plaintiff was allegedly denied laundry, there is simply no indication in the record the denial of laundry the weeks of July 9, July 30, and August 6, 2018, posed a serious risk to Plaintiff's health. Id.; Zielinski, 547 F.Supp.3d at 236.
3. Denial of Cane and Medical Boots
Plaintiff asserts Eighth Amendment conditions of confinement claims against COs Olivo and Vitarius for denying him use of his cane and medical boots despite having a “valid permit” for them. (Dkt. No. 1 at 6, 7.) As set forth above, Plaintiff filed a grievance on July 16, 2018, requesting, in part, the return of his cane and medical boots after he was denied access to them in the SHU. (Dkt. No. 24-3 at 62, 64.) On August 17, 2018, in response to his grievance, Supt. Collado informed Plaintiff he would be issued his cane if he needed to leave the unit but could not keep it in the cell with him. (Dkt. No. 24-3 at 64.) However, he could keep his medical boots in his cell if he had a valid permit for them. Id. Plaintiff did in fact have a valid medical permit from Shawangunk dated April 3, 2018, authorizing his medical boots and cane. (Dkt. No. 1 at 54.) Yet in Plaintiff's grievance filed on September 2, 2018, he claimed when he presented the “COs in SHU” both Supt. Collado's grievance response and the valid permit for his medical boots, CO Vitarius refused to allow Plaintiff to keep his medical boots in his cell, telling him “no[] boots or cane here.” (Dkt. No. 1 at 50.)
i. Denial of Medical Boots
The denial of Plaintiff's medical boots does not in and of itself trigger a constitutional violation. See Curtis v. Lucia, No. 9:15-CV-0718 (GLS/TWD), 2015 WL 13948917, at *7-8 (N.D.N.Y. Aug. 4, 2015) (finding plaintiff's vague allegations he suffered “harsh conditions” and the SHU staff refused to allow him to wear his medical boots or go to recreation failed to demonstrate the conditions were objectively serious to trigger constitutional protections); Trapani v. Annucci, No. 9:21-CV-0681 (LEK/ML), 2022 WL 7290107, at *10 (N.D.N.Y. June 21, 2022) (plaintiff's allegations that defendants placed him in punitive segregation, did not return the bulk of his personal belongings, and denied him his medically prescribed boots were “insufficient to plausibly suggest that he was incarcerated under conditions that objectively posed a substantial risk of serious harm.”), report and recommendation adopted, 2022 WL 4008027 (N.D.N.Y. Sept. 1, 2022).
However, even if denial of his medical boots did meet the objective prong of the Eighth Amendment test, “Plaintiff's failure to allege any facts indicating that [Defendants] acted, or did not act, with a wanton state of mind, forecloses any colorable allegation that he was denied his constitutional rights under the Eighth Amendment regarding prison conditions.” See Loadholt v. Lape, No. 9:09-CV-0658, 2011 WL 1135934, at *4 (N.D.N.Y. Mar. 3, 2011), report and recommendation adopted, 2011 WL 1114253 (N.D.N.Y. Mar. 25, 2011); see also Vaughan v. Erno, 8 Fed.Appx. 145, 146-47 (2d Cir. 2001) (finding complained conditions of confinement did not constitute an Eighth Amendment violation because plaintiff failed to show defendants acted with deliberate indifference, even assuming that he sufficiently alleged a serious harm).
Plaintiff alleges COs Olivo and Vitarius “did not allow[]” Plaintiff to “use his . . . medical boots” inside his cell even though he had a valid permit for them. (Dkt. No. 1 at 6-7, 50, 53.) Although Plaintiff did in fact have a valid permit for his medical boots, his conclusory allegations, without more, are not enough to show COs Olivo and Vitarius were deliberately indifferent to Plaintiff's health or safety. (Dkt. No. 1 at 53); see Houston v. Wright, No. 9:10-CV-1009 (NAM/RFT), 2013 WL 5439826, at *10 (N.D.N.Y. Sept. 27, 2013) (quoting Summerville v. Faciuna, 2009 WL 2426021, at *9 (W.D.N.Y. Aug. 6, 2009)) (“Even if the conditions of confinement were found to be unreasonable as a matter of law, a plaintiff cannot survive summary judgment unless he can point to ‘record evidence creating a genuine dispute' as to the facts regarding Defendants' culpable mental state”) (internal quotation marks omitted); see also Kia P. v. McIntyre, 235 F.3d 749, 763 (2d Cir. 2000) (“A plaintiff may not survive a properly asserted motion for summary judgment on the basis of conclusory allegations alone.”); D Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998) (“The non-moving party may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful”); Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir.1985) (“[M]ere conjecture or speculation by the party resisting summary judgment does not provide a basis upon which to deny the motion.”). Therefore, for the reasons set forth herein, the Court recommends granting summary judgment to COs Olivo and Vitarius on these claims.
ii. Denial of Cane
Similarly, the denial of Plaintiff's cane does not meet the objective standard of the Eighth Amendment. See Loadholt, 2011 WL 1135934, at *4 (“[C]ourts in this Circuit have found the deprivations of better pain medicine, a cane, a mattress, a pillow, or ‘better shoes,' as the Plaintiff has alleged, do not meet, neither singularly nor collectively, the objective standard under the Eighth Amendment.”) (citations omitted).
Further, it is undisputed that SHU policy prohibited Plaintiff from having his cane in his cell due to “safety and security reasons.” (Dkt. No. 24-3 at 4; Dkt. No. 24-4 at 3-4; Dkt. No. 245 at 3.) Therefore, the denial of Plaintiff's cane in the SHU does not constitute deliberate indifference because there was a “legitimate penological reason” for doing so. Rahman v. Artuz, No. 95 CIV 0272 MGC, 1999 WL 600520, at *4 (S.D.N.Y. Aug. 10, 1999) (finding plaintiff failed to prove defendants, who would not permit the prisoner to wear his knee braces in the SHU for security reasons, showed deliberate indifference to his medical needs because “[t]here was a legitimate penological reason for not giving him his braces in the SHU”); Roundtree v. City of New York, No. 15-CV-8198, 2018 WL 1586473, at *9 (S.D.N.Y. Mar. 28, 2018) (finding prison officials' denial of Plaintiff's request for medical equipment due to security concerns was a “legitimate, penological reason” to do so.).
Because Plaintiff cannot meet the objective or subjective prongs of the conditions of confinement inquiry here, the Court recommends granting summary judgment as to these claims against COs Olivo and Vitarius.
4. Denial of Showers and Recreation
The Court comes to a different conclusion regarding the alleged denial of showers and recreation. Plaintiff asserts COs Olivo and Vitarius denied him “out-of-cell exercise” and showers throughout the duration of his time in the SHU. (Dkt. No. 1 at 6-7, 14-15.) COs Olivo and Vitarius claim they would ask inmates during their daily rounds whether they wanted to exercise and every second or third day, they would also ask the inmates if they wanted to shower. (Dkt. No. 24-4 at 2; Dkt. No. 24-5 at 2.) If the inmates wanted to shower or exercise, the COs would escort the inmates to the appropriate area. (Dkt. No. 24-4 at 2; Dkt. No. 24-5 at 2.) Normally, if an inmate declined recreation, the COs would mark the inmate's refusal on a “Go Around” slip, which they would maintain for seven days. (Dkt. No. 24-4 at 2; Dkt. No. 24-5 at 2.) On days where showers were also offered, any shower or recreation refusals were instead recorded on the SHU logs. (Dkt. No. 24-4 at 2; Dkt. No. 24-5 at 2.) Both CO Olivo and CO Vitarius claim Plaintiff “was regularly given the option to shower and exercise, but often refused.” (Dkt. No. 24-4 at 2; Dkt. No. 24-5 at 2.)
The records provided by Defendants reflect that on July 8, 2018, and August 17, 2018, Plaintiff was marked as “Hold Live” for shower and recreation, indicating he was “temporarily off the unit for other reasons (such as medical visits).” (Dkt. No. 24-1 at 3; Dkt. No. 24-3 at 2, 36.) On July 10, 13, 15, 17, 22, 27, and 29, 2018, and August 5, 14, 21, 24, and 28, 2018, the COs on duty reported Plaintiff “refused” both showers and recreation. (Dkt. No. 24-3 at 37-42, 44, 45, 51, 54, 55, 57.) On July 20 and 31, 2018, and August 3, 5, 7, and 12, 2018, the COs on duty recorded Plaintiff “refused” showers. (Dkt. No. 24-3 at 41, 46-50.) The Court notes it is unclear whether the refusals for showers also applied to recreation on those days, as the recreation columns were left blank. Id. On July 24, 2018, and August 26, 2018, both the shower and outside recreation columns were left blank for Plaintiff. (Dkt. No. 24-3 at 43, 56.) On August 19, 2018, the COs drew a line through the shower column and left the recreation column blank in Plaintiff's row. (Dkt. No. 24-3 at 53.) It is unclear to the Court whether the blank spaces and lines are equivalent to refusals or something else.
However, Plaintiff gives a different version of events-mainly, he did not refuse showers and recreation, but he was unable to take a shower or go to recreation without assistance from his cane or medical boots. Plaintiff testified as follows:
Q. . . . So you would ask to take a shower. They would refuse to give your cane and they would refuse to let you take a shower?
A. That's correct.
Q. Okay. Approximately how many showers did you take during your time at -- in the box at Shawangunk?
A. None.
Q. And is that because they refused to let you take a shower?
A. Well, first they denied giving me the cane, and then they said that if I couldn't go without the cane that I wasn't going to be able to take a shower.
Q. Okay. So you're saying then that you were unable to walk to the shower because you didn't have a cane?
A. That's - that's correct.
Q. So is it that they denied your shower because you couldn't walk to the shower?
A. Correct.
(Dkt. No. 24-6 at 36-37.)
Q. . . .Could you explain why, in your opinion, they did not let you go to recreation?
A. Because they told me that they couldn't bring me the cane or the medical boot.
Q. Okay. So was this the same reason as in the -- with the showers?
A. That's correct.
Q. Okay. So is it right to say that because you could not walk to recreation or the showers, you were not permitted to go there?
A. That's correct, because without the boot or without the cane, I couldn't walk.
Q. Did you decline . . . the opportunity to go to recreation, or was it they said you could not go at all?
A. They told me that I couldn't go because they weren't going to bring me the boots or the cane.
Q. And to confirm, during your time in the box, you never got to go to recreation?
A. That's correct.
Q. Same with the showers?
A. That's correct.
(Dkt. No. 24-6 at 38-39)
i. Legal Standards Regarding Exercise and Recreation
“[E]xercise is one of the basic human needs protected by the Eighth Amendment.” Williams v. Goord1, 111 F.Supp.2d 280, 292 (S.D.N.Y. 2000); McCray v. Lee, 963 F.3d 110, 120 (2d Cir. 2020) (“In this Circuit the rights of prisoners to a meaningful opportunity for physical exercise had been clearly established.”). “However, not every deprivation of exercise amounts to a constitutional violation. Rather, a plaintiff must show that he was denied all meaningful exercise for a substantial period of time.” Williams v. GoordII, 142 F.Supp.2d 416, 425 (S.D.N.Y. 2001) (hereinafter Goord II). “Factors to consider in making this determination are: (1) the duration of the deprivation; (2) the extent of the deprivation; (3) the availability of other out-of-cell activities; (4) the opportunity for in-cell exercise; and (5) the justification for the deprivation.” Id.
Courts have granted summary judgment to prisoners where the magnitude of the deprivation of exercise was “patent.” Id.; see, e.g., Williams v. Greifinger, 918 F.Supp. 91, 98 (S.D.N.Y.) (holding plaintiff was entitled to summary judgment on Eighth Amendment claim because he was deprived of exercise for 589 days), rev'd on other grounds, 97 F.3d 699 (1996); Jolly v. Coughlin, 76 F.3d 468, 480 (2d Cir. 1996) (upholding preliminary injunction requiring prison officials to release inmate from medical keeplock when inmate was only allowed out of cell ten minutes per week for over three and a half years); McCray v. Lee, 963 F.3d 110, 117-18 (2d Cir. 2020) (finding plaintiff's Eighth Amendment damages claims for denial of physical exercise against certain defendants should not have been dismissed when plaintiff had alleged he did not have room to exercise in his cell and was denied any meaningful exercise opportunity for four months); Goord II, 142 F.Supp.2d at 426-29 (finding genuine issues of material fact precluded summary judgment on inmate's Eighth Amendment claim he was deprived of meaningful exercise for 28 days).
However, depriving a prisoner of exercise for a relatively brief period of time has resulted in summary judgment in defendants' favor. GoordII, 142 F.Supp.2d at 426; see, e.g., Barnes v. Craft, No. 04-CV-1269, 2008 WL 3884369 (NAM/GHL), at *9 (N.D.N.Y. Aug. 18, 2008) (denial of outdoor exercise “for six days [was] simply not sufficiently severe and prolonged to rise to the level of an Eighth Amendment violation.”); Gibson v. City of N.Y., 96 Civ. 3409, 1998 WL 146688, at *3 (S.D.N.Y. Mar. 25, 1998) (finding the “deprivation of the opportunity to participate in recreation for eight days in a sixty day period, even when coupled with the deprivation of an opportunity to exercise on two consecutive days” was not sufficiently serious); Davidson v. Coughlin, 968 F.Supp. 121, 131 (S.D.N.Y. 1997) (deprivation of outdoor exercise for fourteen days did not violate Eighth Amendment). Indeed, “an occasional day without exercise when weather conditions preclude outdoor activities . . . is not cruel and unusual punishment.” Anderson v. Coughlin, 757 F.2d 33, 36 (2d Cir. 1985).
ii. Legal Standards Regarding Showers
Inmates also have a right to sanitary living conditions and the necessary materials to maintain adequate personal hygiene. See Walker v. Schult, 717 F.3d 119, 127 (2d Cir. 2013). District courts within the Second Circuit have held a temporary denial of access to showers does not rise to the level of a serious deprivation of a human need. See George v. McGinnis, No. 05-CV-84 (SR), 2008 WL 4412109, at *4-5 (W.D.N.Y. Sept. 23, 2008) (deprivation of showers for thirteen days does not satisfy the objective element of an Eighth Amendment claim); McCoy v. Goord, 255 F.Supp.2d 233, 260 (S.D.N.Y. 2003) (dismissing Eighth Amendment claims as insufficient under the objective test because “a two-week suspension of shower privileges does not suffice as a denial of ‘basic hygienic needs'”) (citation omitted); Waring v. Meachum, 175 F.Supp.2d 230, 242 (D. Conn. 2001) (“[T]he prohibition of showers and failure to provide a change of clothing during the seven day lockdown period does not demonstrate that plaintiffs were deprived of a minimum civilized level of life's necessities”); Rogers v. Faucher, No. 3:18-cv-01809 (JCH), 2019 WL 1083690, at *5 (D. Conn. Mar. 7, 2019) (five day deprivation of shower use did not constitute sufficiently serious deprivation of a human need).
iii. Analysis
Construed liberally, Plaintiff alleges he was constructively denied recreation and showers because he physically could not walk to these activities and COs Olivo and Vitarius refused to give him his medical boots or cane. (Dkt. No. 1 at 6-7, 53; Dkt. No. 24-6 at 36-39.) As a result, his inability to walk to these activities was presumed to be a refusal. (See id.; Dkt. No. 24-3 at 37-42, 44-50, 51, 54, 55, 57.) The Court finds this case to be analogous to the Fourth Circuit case, Rivera v. Mathena, 795 Fed.Appx. 169 (4th Cir. 2019), where plaintiff Rivera alleged he was denied a “meaningful opportunity to shower and exercise because he was asleep when corrections officers took the shower and exercise list and [he] was [thus] deemed to have ‘refused' the opportunities.” Id. at 173 (citation omitted). Rivera was an inmate in segregation who was often alone in his cell for twenty-four hours a day without an alarm clock. Id. Prison staff refused to wake Rivera during shower and recreation callouts or accept his shower and recreation requests made by leaving a note or asking staff in person at a later time. Id.
The Fourth Circuit held for Rivera to have waived his right to Eighth Amendment constitutional protections, he would need to have shown an “intentional relinquishment” of these protections because the court does “not presume acquiescence in the loss of fundamental rights.” Id. (internal quotation marks and citations omitted). While the district court held it was Rivera's choice not to shower and exercise, the Fourth Circuit found Rivera did not “form the intention to waive Eighth Amendment protections against cruel and unusual punishments” while he was sleeping. Id. (internal quotation marks and citations omitted).
The Fourth Circuit noted “two months without showers and recreation can be sufficient to support an Eighth Amendment claim.” Id. at 174 (citing Brown v. Lamanna, 304 Fed.Appx. 206, 208 (4th Cir. 2008)). Rivera demonstrated he had received far fewer than the five hours of recreation and three showers each week he should have been permitted while in segregation. Id. at 174-75. Notably, at one point, he did not shower for almost eight weeks and did not exercise for about two months. Id. at 175. The Court found there was sufficient evidence to establish genuine issues of material fact as to the objective prong of the conditions of confinement claim. Id. at 174-75. Specifically, “[t]he combination and duration of the shower and exercise deprivations were sufficiently lengthy and severe over the course of Rivera's four years in segregation to provoke” constitutional concerns. Id. at 175. Rivera suffered injuries and “faced a substantial risk of serious harm as a result of long periods without showers and recreation.” Id.
The Court also found Rivera presented enough evidence to create a genuine issue of fact “as to whether prison staff had notice of both Rivera's shower and exercise deprivations and their impact on Rivera's physical and mental health” and once they were aware, whether they should have taken corrective action. Id. at 176. Rivera had filed numerous grievances challenging the denial of showers and recreation-alerting the staff to these issues. Id. When prison staff responded to these complaints, they showed “they knew Rivera was being denied showers and recreation against his will.” Id. Additionally, Rivera had told prison staff how the denial of showers and exercise was adversely affecting his health; he left notes on his door requesting showers and recreation; and showed certain defendants a doctor's note stating he was required to wash off his fungal medication on the days showers were offered. Id. There were also log sheets posted on Rivera's cell door showing he had missed extensive shower and exercise opportunities, which prison staff “would have seen.” Id. Even if Rivera had not advised certain defendants he was suffering mental and physical harm as a result of the denial of regular recreation and showers, “the risks posed would have been obvious to them.” Id.
Similarly, here, COs Olivo and Vitarius appear to have offered Plaintiff the opportunity to shower and exercise. (Dkt. No. 24-4 at 2; Dkt. No. 24-5 at 2.) However, there is a genuine issue of material fact whether Plaintiff intentionally relinquished his Eighth Amendment protections when he “refused” showers and recreation due to his inability to walk to those activities and, thus, whether he was given the meaningful opportunity to shower and exercise at all. (Dkt. No. 1 at 6-7; Dkt. No. 24-3 at 62.); Rivera, 795 Fed.Appx. at 174-76.
As to the objective prong, the Court finds there is a genuine issue of material fact as to whether the denial of showers and recreation for 60 consecutive days in the SHU posed a substantial risk of serious harm to Plaintiff. The Court also finds the Fourth Circuit's assessment in Rivera to be persuasive. In other words, the Court holds that approximately 60 days without showers and exercise is “sufficiently lengthy and severe” to raise constitutional concerns and potentially pose “a substantial risk of serious harm” to Plaintiff. Rivera, 795 Fed.Appx. at 175.
While Plaintiff did not explicitly allege he could not exercise in his cell, the Court finds Plaintiff's testimony he was unable to walk without his medical boots sufficient to demonstrate he was unable to exercise in his cell. (Dkt. No. 24-6 at 27.) Contra Brogdon v. City of New York, No. 16-CV-8076 (LAK)(RWL), 2018 WL 4762981, at *11 (S.D.N.Y. Aug. 8, 2018) (internal quotation marks and citation omitted) (“Courts have found no violation where the inmate has an opportunity for exercise, either in or outside of his cell”), objections overruled 2018 WL 4757947 (S.D.N.Y. Oct. 1, 2018); see also Huggins v. Schriro, No. 14 Civ. 6468, 2015 WL 7345750, at *6-7 (S.D.N.Y. Nov. 19, 2015) (dismissing claim where plaintiff had not alleged that he could not exercise in his cell), report and recommendation adopted 2016 WL 680822 (S.D.N.Y. Feb. 18, 2016).
The Court further finds Plaintiff has presented enough evidence to create a genuine issue of fact as to whether COs Olivo and Vitarius were deliberately indifferent to his health or safety. On July 16, 2018, Plaintiff filed a grievance in which he claimed he had been kept in his cell 24 hours a day since July 7, 2018. (Dkt. No. 24-3 at 62.) In said grievance, he requested he be allowed to shower and exercise and for his medical boots and cane to be returned to him. Id. On August 17, 2018, Supt. Collado responded while Plaintiff was not allowed his cane, he could have his medical boots if he had a valid permit. (Dkt. No. 1 at 53.) She also advised Plaintiff “must request recreation, and showers on appropriate days, during the morning go around. This is his responsibility.” Id. This response demonstrates, at least to some extent, prison staff “knew [Plaintiff] was being denied showers and recreation against his will.” Rivera, 795 Fed.Appx. at 176. Furthermore, in his appeal statement dated August 29, 2018, Plaintiff reported it had been “54 days” in the SHU without being allowed to shower or exercise because “the officers refused to let [him] use[] [his] cane, and medical boots.” (Dkt. No. 1 at 53.)
Plaintiff filed another grievance on September 2, 2018, requesting his medical boots which he needed “for daily activities.” (Dkt. No. 1 at 50.) He reported showing his medical permit to the COs in the SHU, but CO Vitarius still refused to allow him to keep his medical boots in his cell. Id. Even if COs Olivo and Vitarius were unaware of Plaintiff's grievances, there appears to have been conversations between Plaintiff and, at least, CO Vitarius where he explained his need for his medical boots or cane to go shower or exercise. (Dkt. No. 24-6 at 3639.) These conversations should have put COs Olivo and Vitarius on notice Plaintiff had not showered or exercised during his time in the SHU. Rivera, 795 Fed.Appx. at 175. Moreover, the SHU logs showing Plaintiff had not showered or exercised for weeks should have put COs Olivo and Vitarius on notice of this ongoing issue. Id. Therefore, because there are issues of fact as to whether Plaintiff's lack of showers and recreation was objectively serious and whether COs Olivo and Vitarius were deliberately indifferent to Plaintiff's health or safety, the Court recommends denying summary judgment as to these claims.
C. Harassment
Plaintiff alleges COs Olivo and Vitarius “harass[ed] him every time they pass[ed] in front of his cell.” (Dkt. No. 1 at 6.) He had previously filed a grievance stating CO Olivo referred to him using racial and religious slurs and told him he did not “deserve to live.” (Dkt. No. 24-5 at 44-46.) During the subsequent investigation, Sgt. Dangelewicz interviewed Plaintiff who “reinforced his statement and provided no witnesses to support his claim.” (Dkt. No. 24-3 at 74, 75.) CO Olivo also submitted a memorandum denying he threatened or harassed Plaintiff. (Dkt. No. 24-3 at 76.) Although CO Vitarius is included in Plaintiff's general allegations, Plaintiff does not appear to make any specific allegations of harassment against CO Vitarius. (See Dkt. No. 1 at 6-7.)
Nonetheless, even if COs Olivo and Vitarius verbally harassed Plaintiff “[i]t is well established in the Second Circuit that verbal harassment of inmates by prison officials, unaccompanied by any injury-no matter how inappropriate, unprofessional, or reprehensible it might seem-does not rise to the level of a violation of the Eighth Amendment.” Cusamano v. Sobek, 604 F.Supp.2d 416, 490 (N.D.N.Y. 2009). Threats, unaccompanied by any injury, also do not amount to such a violation. Id. Generally, injuries in these types of claims must be physical in nature. Id. However, “under certain circumstances, a prison official's infliction of psychological pain on an inmate may constitute an Eighth Amendment violation” if the psychological pain is “(1) intentionally inflicted and (2) more than de minimis in nature.” Id. at 491. Psychological injuries considered more than de minimis in nature include “depression, nausea, hyperventilation, headaches, insomnia, dizziness, and/or weight loss.” Id. at 492.
Plaintiff has not demonstrated that, at any point during his stay in the SHU, CO Olivo's and/or CO Vitarius' harassment caused him more than de minimis psychological injuries. As a result, “[e]ven when construed with the utmost of special leniency” Plaintiff has not created a question of material fact as to whether CO Olivo's and CO Vitarius' alleged conduct violated the Eighth Amendment. Id. Therefore, for the reasons set forth above, the Court recommends granting summary judgment as to these claims.
D. Retaliation
Plaintiff alleges CO Vitarius microwaved all the food on his kosher tray and threw out his medical boots in retaliation for Plaintiff filing a grievance against him. (Dkt. No. 1 at 7-8, 14-15, 53.) Plaintiff claims he had his medical boots for “outside medical trips” on August 16, 2018, and August 17, 2018. (Dkt. No. 1 at 50.) However, on August 29, 2018, when Plaintiff was moved from the SHU, he claims CO Vitarius “refused to brought to me the items in my SHU-Box he . . . said that he put them together with the rest of my other property, but my medical boots was not there with my other property.” Id. When he inquired about his medical boots, CO Vitarius “said that he couldn't found my medical boots in my SHU-box or in the SHU.” Id. CO Vitarius claims he was unaware of Plaintiff's grievances, he did not destroy or throw away Plaintiff's medical boots, and he did not tamper with Plaintiff's food. (Dkt. No. 24-4 at 4.)
To prove a First Amendment retaliation claim, “a prisoner must show ‘(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.'” Roseboro v. Gillespie, 791 F.Supp.2d 353, 366 (S.D.N.Y. 2011) (quoting Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)).
To demonstrate a prison official took adverse action against him, the plaintiff must show the defendant's retaliatory conduct “would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights . . . . Otherwise, the retaliatory act is simply de minimis, and therefore outside the ambit of constitutional protection.” Id. (internal quotation marks and citations omitted). In determining whether there is causal connection between the protected speech and the adverse action, a court may consider a number of factors, including “any statements made by the defendant concerning his motivation” and “the temporal proximity between the protected activity and the defendant's adverse action.” Id. (internal quotation marks and citations omitted). Prisoners' claims of retaliation must be examined with skepticism and particular care because they are “prone to abuse since prisoners can claim retaliation for every decision they dislike.” Id. at 367 (internal quotation marks and citations omitted).
Here, Plaintiff has met the first prong of the retaliation inquiry because “[i]t is well settled that the filing of a prison grievance is a protected activity.” Id. (quoting Mateo v. Fischer, 682 F.Supp.2d 423, 433 (S.D.N.Y. 2010)). However, Plaintiff has failed to show CO Vitarius actually took an adverse action against him. Key v. Toussaint, 660 F.Supp.2d 518, 526 (S.D.N.Y. 2009). To prevail on a retaliation claim involving missing property, Plaintiff must show both (1) CO Vitarius “intentionally” or “deliberately” lost or destroyed his property and (2) that CO Vitarius was “personally involved” in doing so. Id. (internal quotation marks and citations omitted). In light of the Second Circuit's admonition that retaliation claims must be examined with skepticism and great care, the evidence in this case is not sufficient to allow a reasonable jury to find CO Vitarius intentionally lost or destroyed Plaintiff's property. Id.
The record lacks any evidence CO Vitarius took adverse action against Plaintiff for the grievances he filed by intentionally losing or destroying his medical boots. Indeed, it is unclear to the Court whether CO Vitarius ever actually took possession of Plaintiff's medical boots. (See Dkt. No. at 1 at 50.) However, even if he had, there is no evidence to suggest CO Vitarius was the exclusive custodian of the boots; Plaintiff simply claims “[n]o prisoner had access to his box” containing his boots. (Dkt. No. 28-1 at 26); see Roseboro, 791 F.Supp.2d at 375; Key, 660 F.Supp.2d at 526. “The mechanism for storing [Plaintiff's] property and its chain of custody is simply unknown” and therefore the boots “might have been simply lost or misplaced . . . and not intentionally destroyed.” Key, 660 F.Supp.2d at 526; see also Roseboro, 791 F.Supp.2d at 375. Moreover, Plaintiff acknowledged he received his other property when leaving the SHU. (Dkt. No. 1 at 50; Dkt. No. 28-1 at 26.) The return of a portion of Plaintiff's property “suggests that there was no intentional act on any particular person's part to lose or destroy his property.” Key, 660 F.Supp.2d at 526.
In sum, the Court recommends granting summary judgment as to the retaliation claim because there is insufficient evidence for a reasonable jury to conclude CO Vitarius retaliated against Plaintiff. See Key, 660 F.Supp.2d at 526-27 (granting summary judgment to defendant corrections officers on First Amendment retaliation claim alleging intentional loss or destruction of property where there “[wa]s no evidence that [the defendants] were the exclusive custodians of the property after they took possession of it” prior to the plaintiff's transfer to another correctional facility; “[t]he mechanism for storing [the plaintiffs] property and its chain of custody [wa]s simply unknown”; and the return of a portion of plaintiff's property suggested there was no intentional act to lose or destroy plaintiff's property.)
E. Qualified Immunity
Defendants COs Olivo and Vitarius argue, in the alternative, they are entitled to qualified immunity on Plaintiff's claims. (Dkt. No. 24-2 at 18-19.) Because the Court has recommended granting summary judgment to all claims except the conditions of confinement claims with respect to Plaintiff's access to showers and recreation, the Court only addresses whether Defendants are entitled to qualified immunity as to those claims.
In resolving questions of qualified immunity at summary judgment, courts engage in a two-pronged inquiry. The first prong “asks whether the facts, taken in the light most favorable to the party asserting the injury . . . show the officer's conduct violated a federal right” and the second prong “asks whether the right in question was clearly established at the time of the violation.” Raspardo v. Carlone, 770 F.3d 97, 113 (2d Cir. 2014). “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Garcia v. Univ. of Connecticut Health Care Ctr., No. 3:16-CV-852 (JCH), 2018 WL 5830840, at *16 (D. Conn. Nov. 7, 2018) (internal quotation marks and citation omitted). The Supreme Court has held a court may consider these two questions in either order and, if it determines one prong is not satisfied, it need not reach the other. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
Even where a right is clearly established, an officer is entitled to qualified immunity if “it was objectively reasonable for the defendant to believe that his action did not violate such law.” Poe v. Leonard, 282 F.3d 123, 133 (2d Cir. 2002). An officer's actions are objectively reasonable if “officers of reasonable competence could disagree on the legality of the defendants' actions.” Ford v. Moore, 237 F.3d 156, 162 (2d Cir. 2001). “[I]f the court determines that the only conclusion a rational jury could reach is that reasonable officers [at the time of the alleged constitutional violation] would disagree about the legality of the defendants' conduct under the circumstances, summary judgment for the officers is appropriate.” Lennon v. Miller, 66 F.3d 416, 421 (2d Cir. 1995).
Whether a defendant's conduct was objectively reasonable, that is, “whether a reasonable official in the defendant's position would reasonably believe his conduct did not violate a clearly established right,” is a mixed question of law and fact. Outlaw v. City of Hartford, 884 F.3d 351, 367 (2d Cir. 2018). “Although a conclusion that the defendant official's conduct was objectively reasonable as a matter of law may be appropriate where there is no dispute as to the material historical facts . . . if there is such a dispute, the factual questions must be resolved by the factfinder.” Kerman v. City of New York, 374 F.3d 93, 109 (2d Cir. 2004) (citations omitted).
Here, COs Olivo and Vitarius argue they are entitled to qualified immunity because their actions were “objectively reasonable” as to Plaintiff's allegation he was denied showers and recreation because “he knowingly refused these opportunities.” (Dkt. No. 24-2 at 19.) “The court first addresses whether the facts, viewed in the light most favorable to the [P]laintiff, show that the officers' conduct violated a constitutional right.” Garcia, 2018 WL 5830840, at *16.
Plaintiff alleges COs Olivo and Vitarius denied him use of his medical boots after he showed them his valid medical permit. (Dkt. No. 1 at 6.) As a result, Plaintiff was unable to walk to the showers or recreation and, therefore, was constructively denied the meaningful opportunity to partake in these activities during his entire 60 day stay in the SHU. (Dkt. No. 1 at 6-7, 53; Dkt. No. 24-6 at 36-39.) As noted in more detail above, long periods of time without a meaningful opportunity to shower or exercise can constitute conditions of confinement which violate the Eighth Amendment. See GoordII, 142 F.Supp.2d at 426-29; Rivera, 795 Fed.Appx. at 174-75. Defendants contend Plaintiff refused showers and recreation of his own accord. (Dkt. No. 24-4 at 2; Dkt. No. 24-5 at 2.) However, here, the Court “may not resolve genuine disputes of fact in favor of the party seeking summary judgment.” Tolan v. Cotton, 572 U.S. 650, 656 (2014). Viewing the evidence in the light most favorable to Plaintiff, the Court concludes a rational jury could find CO Olivo and CO Vitarius constructively denied Plaintiff a meaningful opportunity to shower and exercise for 60 days and “[s]uch conduct was sufficiently serious to constitute a constitutional deprivation at the time.” Garcia, 2018 WL 5830840, at *16.
As discussed in more detail above, Defendants denying Plaintiff the use of his medical boots or cane did not, in and of itself, violate the Eighth Amendment. See supra Section III.B.3. Moreover, because canes were prohibited in the SHU for valid safety and security reasons, the Court will only address the denial of Plaintiff's medical boots, as those were allowed with a valid medical permit. See id.
The second prong of the qualified immunity analysis is whether the right that the defendants allegedly violated was clearly established at the time of their conduct, that is, whether “the rights that plaintiff asserts were violated [were] clearly established in a particularized sense, so that a reasonable official would know that his actions violated plaintiff's rights.” P.C. v. McLaughlin, 913 F.2d 1033, 1039 (2d Cir. 1990) (internal quotation omitted). As noted above, clearly established law at the time of the incident provided inmates are entitled to basic human needs, such as showers and recreation. See Goord II, 142 F.Supp.2d at 426-29; Rivera, 795 Fed.Appx. at 174-75. Thus, the right upon which his claim is based was clearly established at the time in question.
As previously mentioned, even where a right is clearly established, a defendant will be entitled to qualified immunity if, at the time of the alleged acts, it would have been “objectively reasonable for the defendant to believe that his action did not violate such law.” Poe v. Leonard, 282 F.3d at 133. In other words, the defendants are entitled to qualified immunity if reasonable officers at the time would disagree that the defendants' conduct violated Plaintiff's constitutional rights. See id.
The first question in the “objectively reasonable” analysis “is whether it was objectively reasonable for the officers to believe [Plaintiff's] deprivation was not sufficiently serious to meet the objective element of an Eighth Amendment claim.” Garcia, 2018 WL 5830840, at *17. At the time of the alleged violations in question, the Second Circuit had held there was “no static test to determine whether a deprivation is sufficiently serious, and that the conditions themselves must be evaluated in light of contemporary standards of decency.” Id. (quoting Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012)) (alterations and citation omitted). The Second Circuit had also held “prisoners may not be deprived of their basic human needs,” including food, clothing, shelter, and reasonable safety. Id. (quoting Jabbar, 683 F.3d at 57.) The Court concludes, if the jury credits Plaintiff's testimony, the alleged denial of showers and recreation for 60 days would amount to a serious deprivation of basic needs sufficient to meet the first element of an Eighth Amendment claim.
The second question is whether COs Olivo and Vitarius “are entitled to qualified immunity because it was objectively reasonable for the defendants to believe their conduct did not violate [Plaintiff's] Eighth Amendment right.” Id. As previously discussed, “to satisfy the subjective deliberate indifference element under the Eighth Amendment, a plaintiff must prove officers knew of, and disregarded, an excessive risk to health or safety.” Id. Here, Plaintiff filed multiple grievances and appeals requesting showers and recreation and his medical boots which he needed “for daily activities.” (Dkt. No. 1 at 50, 53; Dkt. No. 24-3 at 62.) He also reported showing the COs in the SHU his valid permit for his medical boots, but CO Vitarius still refused to permit him to keep his medical boots in his cell. (Dkt. No. 1 at 50.) Finally, the SHU logs showed Plaintiff had not showered or gone to recreation in weeks. (Dkt. No. 24-3 at 37-42, 4450, 51, 54, 55, 57.)
As discussed in more detail above, Plaintiff's actions and the SHU logs should have put COs Olivo and Vitarius on notice of this ongoing issue. Rivera, 795 Fed.Appx. at 175. Viewing the evidence in the light most favorable to Plaintiff, and drawing all reasonable inferences in his favor, the Court concludes a rational jury could find COs Olivo and Vitarius denied Plaintiff showers and recreation by denying him access to his medical boots. The Court also concludes a rational jury could find COs Olivo and Vitarius knew of and disregarded an excessive risk to Plaintiff's health and safety when they failed provide Plaintiff with a meaningful opportunity to shower and exercise, or that the risk to Plaintiff's health and safety was “obvious or otherwise must have been known to [the] defendants.” Walker, 717 F.3d at 125.
Because a reasonable trier of fact could find CO Olivo's and CO Vitarius' actions were objectively unreasonable, the Court recommends denying COs Olivo and Vitarius summary judgment on qualified immunity grounds. See Lennon, 66 F.3d at 420 (“If any reasonable trier of fact could find that the defendants' actions were objectively unreasonable, then the defendants are not entitled to summary judgment.”).
IV. CONCLUSION
After carefully reviewing the record, the parties' submissions, and the applicable law, and for the reasons stated herein, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 24-2) be GRANTED in part and DENIED in part as follows: (1) the Eighth Amendment conditions of confinement claims against Lt. Connors be dismissed; (2) the First Amendment Retaliation claim against CO Vitarius be dismissed; (3) the Eighth Amendment harassment claims against COs Olivo and Vitarius be dismissed; (4) the Eighth Amendment conditions of confinement claims against COs Olivo and Vitarius regarding the alleged tampering with of Plaintiff's kosher meals, the denial of laundry, and the denial of Plaintiff's cane and medical boots be dismissed; and (5) the Eighth Amendment conditions of confinement claims against COs Olivo and Vitarius regarding the alleged denial of showers and recreation proceed to trial; and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and that the Clerk correct the spelling of Defendant Vitarius' last name.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).
SO ORDERED.