Opinion
21-CV-00301 (AT) (VF)
01-04-2024
GABINO GENAO, Plaintiff, v. CITY OF NEW YORK, et al., Defendants.
REPORT AND RECOMMENDATION
VALERIE FIGUEREDO, UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE ANALISA TORRES, UNITED STATES DISTRICT JUDGE
Plaintiff Gabino Genao, proceeding pro se and in forma pauperis, is presently incarcerated at Attica Correctional Facility. Genao brings this action against Defendants the City of New York (the “City”), Warden Sonya Harvey, Cynthia Brann, the Commissioner of the New York City Department of Corrections, Captain Moise, Officer Nowosu, Officer Freemantle, Captain Cohall, and Captain McCarthy (collectively, “Defendants”) pursuant to 42 U.S.C. § 1983, alleging violations of his federal constitutional rights. Presently before the Court is Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, I respectfully recommend that Defendants' motion be GRANTED in part and DENIED in part.
The individual defendants, other than Warden Harvey and Commissioner Brann, are referred to by their title and last name only. Neither Genao nor the City have provided the first names of those individuals.
The page numbers referenced herein for citations to the electronic docket (“ECF”) are to the original pagination in those documents.
Local Civil Rule 56.1(a) requires the moving party to submit a “short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.” Local Civ. R. 56.1(a). The nonmoving party, in turn, must submit “a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short[,] and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried.” Local Civ. R. 56.1(b). “A pro se litigant is not excused from this rule,” Brandever v. Port Imperial Ferry Corp., No. 13-CV-2813 (KBF), 2014 WL 1053774, at *3 (S.D.N.Y. Mar. 13, 2014) (citation omitted), and “[a] nonmoving party's failure to respond to a R. 56.1 statement permits the court to conclude that the facts asserted in the statement are uncontested and admissible,” T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009) (citation omitted).
Here, Defendants filed and served their Local Civil Rule 56.1 Statement of Undisputed Material Facts (see ECF No. 96), but Genao failed to respond as required by the local rules. Accordingly, the Court may conclude that the facts in Defendants' 56.1 Statement are uncontested and admissible. See Brandever, 2014 WL 1053774, at *3 (concluding that because the pro se plaintiff did not submit a Rule 56.1 statement in response to the moving party's statement of facts, “there [were] no material issues of fact”). In his written opposition, however, Genao does contest certain of Defendants' purported undisputed facts. See ECF No. 117 (“Pl.'s Mem.”). In light of the “special solicitude” afforded to pro se litigants “when confronted with motions for summary judgment,” Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988) (citations omitted), the Court, “in its discretion,” has opted to “conduct an assiduous review of the record,” and if Genao has contested any fact in Defendants' Rule 56.1 Statement by pointing to admissible evidence, the Court has deemed those facts to be disputed, Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (internal quotation marks omitted); Cherry v. Byram Hills Cent. Sch. Dist., No. 11-CV-3872 (ER), 2013 WL 2922483, at *1 (S.D.N.Y. June 14, 2013) (“[W]here a pro se plaintiff fails to submit a proper [Local] Rule 56.1 statement in opposition to a summary judgment motion, the Court retains some discretion to consider the substance of the plaintiff's arguments, where actually supported by evidentiary submissions.”) (citation and internal quotation marks omitted). However, where factual assertions in Plaintiff's opposition do not contain citations to the record or are not supported by evidence in the record, the Court disregards them. See Berry v. Marchinkowski, 137 F.Supp.3d 495, 502 n.1 (S.D.N.Y. 2015). Therefore, unless otherwise noted, the facts recounted herein reflect the undisputed, material facts contained in Defendants' Local Civil Rule 56.1 Statement of Facts (“R. 56.1 Statement”). See ECF No. 96.
A. Factual Background
On December 16, 2020, Genao was incarcerated in the custody of the New York City Department of Corrections (“DOCs”), and housed in Manhattan Detention Center “9 South, Cell 4.” R. 56.1 Statement ¶ 2. On December 16, 2020, at approximately 2:15 p.m., Genao started a fire in the food slot on his cell door. Id. ¶¶ 3, 5, 7. The food slot is a “space in the door where [Genao] can pass things in and out of the cell.” Id. ¶ 8; see also ECF No. 97-3 (“Genao Dep.”) at 214-15.
The fire burned for about one minute before Officer Nwosu “opened the food slot and extinguished [it].” R. 56.1 Statement ¶¶ 9-10; see also Genao Dep. at 213, 215. Genao was then rear-handcuffed and removed from his cell. R. 56.1 Statement ¶¶ 11-12.
Neither Genao nor Defendants identify which Corrections Officer rear-handcuffed Genao. The parties, however, do not dispute that Captain McCarthy was the supervisory captain during the incident. See R. 56.1 Statement ¶¶ 33-34; see also Genao Dep. at 226.
Genao was taken to “decontamination” and then to the medical clinic, all within an hour of the incident. Id. ¶¶ 13, 15-16; see also Geno Dep. at 220. Genao was taken to the clinic because he “couldn't breathe” and had stomach pains. R. 56.1 Statement ¶ 17; Genao Dep. at 221. At the clinic, Genao denied experiencing “[shortness of breath], cough, sputum, dizziness, and lightheadedness”; his chief complaints were “burning of his throat and stomach.” R. 56.1 Statement ¶¶ 20-21; see also ECF No. 97-4 (“Genao's Medical Records”) at DEF 910, 912. At the clinic, Genao was assessed for exposure to smoke and OC spray, as well as gastric irritation. R. 56.1 Statement ¶ 22; Genao's Medical Records at DEF 913. Genao never sought medical treatment for having been rear-handcuffed. R 56.1 Statement ¶ 23; see also Genao Dep. at 221222; Genao's Medical Records at DEF 910, 912-13. Following treatment, Genao was taken back to his cell. R. 56.1 Statement ¶ 24; see also Genao Dep. at 222.
B. Procedural History
Genao commenced this action on January 12, 2021, against Warden Harvey, Captain Moise, Officer Nowosu, Officer Freemantle, Captain Cohall, and Captain McCarthy asserting claims for excessive force, deliberate indifference to medical needs, unconstitutional conditions of confinement, violations of 18 U.S.C. §§ 1001 and 242, and a claim of municipal liability against the City and Commissioner Brann. See ECF No. 2 (“Compl.”). Defendants filed an Answer on August 6, 2021. See ECF No. 29. On April 25, 2022, the case was redesignated to the undersigned.
Genao does not assert any claim against Commissioner Brann other than a municipal liability claim. See Compl. at 12. However, municipal liability under Section 1983 “does not extend to individuals.” Fate v. Petranker, No. 19-CV-05519 (PMH), 2020 WL 3640007, at *7 (S.D.N.Y. July 6, 2020) (citation omitted). Accordingly, I recommend that Genao's municipal liability claim against Commissioner Brann be dismissed. Id.
Defendants filed their motion for summary judgment on May 8, 2023, see ECF No. 95; ECF No. 98 (“Defs.' Mem.”). Genao submitted an opposition in two parts. He submitted exhibits to his opposition on October 4, 2023, ECF No. 114; and then on October 18, 2023, he submitted his written opposition, ECF No. 117 (“Pl.'s Mem.”). On November 20, 2023, Defendants submitted their reply brief in further support of their motion. See ECF No. 121 (“Defs.' Reply”). And on December 28, 2023, Genao submitted-without leave from the Court-a sur-reply. See ECF No. 123 (“Pl.'s Sur-Reply.”).
While sur-replies are not permitted without court authorization, see, e.g., Preston Hollow Cap. LLC v. Nuveen Asset Mgmt. LLC, 343 F.R.D. 460, 466 (S.D.N.Y. 2023) (collecting cases), because Genao is proceeding pro se, the Court has considered his sur-reply, see Khudai v. Akamai Techs., No. 20-CV-3686 (JHR) (JLC), 2023 WL 7174616, at *2 (S.D.N.Y. Nov. 1, 2023). Genao's sur-reply, however, does not raise any new arguments that he did not previously make in his opposition brief.
LEGAL STANDARD
Summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994). “[T]he trial court's task at the summary judgment motion . . . is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them.” Gallo, 22 F.3d at 1224. The moving party bears the initial burden of demonstrating an entitlement to judgment as a matter of law and identifying the matter or matters that “it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323; Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008).
A fact is material when it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (quoting Anderson, 477 U.S. at 248). In determining whether there are genuine issues of material fact, the Court is “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)) (internal quotation marks omitted); Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008) (noting that the Court must view all facts “in the light most favorable” to the non-moving party). However, a court is not required to draw any inference that is “blatantly contradicted by the record, so that no reasonable jury could believe it.” Scott v. Harris, 550 U.S. 372, 380 (2007).
If the movant meets its burden, “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” Jaramillo, 536 F.3d at 145. “[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (internal quotation marks and citation omitted). Rather, to survive a summary judgment motion, the opposing party must establish a genuine issue of fact by “citing to particular parts of materials in the record.” Fed.R.Civ.P. 56(c)(1)(A); Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). For a genuine dispute regarding a material fact to warrant a jury trial, there must be sufficient evidence supporting the claimed factual dispute “to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.” Gallo, 22 F.3d at 1224.
Genao is proceeding pro se and thus the Court must liberally construe his filings to raise the strongest arguments they suggest. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006). “Nonetheless, proceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party's bald assertions unsupported by evidence are insufficient to overcome a motion for summary judgment.” Parker v. Fantasia, 425 F.Supp.3d 171, 183 (S.D.N.Y. 2019) (alterations and internal quotation marks omitted) (quoting Houston v. Teamsters Local 210, 27 F.Supp.3d 346, 351 (E.D.N.Y. 2014)).
DISCUSSION
To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must show that there has been a denial of a right, privilege, or immunity secured by the Constitution or laws of the United States and that the deprivation of such right occurred under color of state law. See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988). Section 1983 creates no substantive rights; rather, a plaintiff bringing a § 1983 claim must demonstrate a violation of an independent federal constitutional or statutory right. See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617-18 (1979).
A. Genao's Excessive-Force Claim under the Fourteenth Amendment
Genao alleges that Officer Nwosu used unnecessary and excessive force when he relied on a fire extinguisher to stop the fire on December 16, 2020. See Compl. at 5-6. Specifically, Genao alleges that Officer Nwosu sprayed the fire extinguisher at him, causing him to experience difficulty breathing and burning in his chest. Id. Defendants argue that Genao's excessive-force claim against Officer Nwosu should be dismissed because Officer Nwosu “needed to deploy a fire extinguisher to put the fire out, and save [Genao's] life.” Defs.' Mem. at 5 (emphasis omitted). Defendants contend that Genao was at most “incidentally sprayed” with the fire extinguisher. Id. For the reasons explained below, I recommend that Defendants' motion be denied as to this claim.
Genao also asserts an excessive-force claim against Officer Freemantle based on his use of OC Spray. Compl. at 6-7. Defendants are not moving for summary judgment on Genao's excessive-force claim as it relates to Officer Freemantle's use of the OC spray. See Defs.' Mem. at 2 n.1. Genao also brings a claim of deliberate indifference to medical needs as it relates to Officer Freemantle's use of OC spray. Compl. at 7-8. Defendants are moving for summary judgment as to that claim. See Defs.' Mem. at 8 n.2; supra at 13-20.
Because Genao was a pretrial detainee at the time of the fire on December 16th, his excessive-force claim is analyzed under the Fourteenth Amendment. Pridgen v. Iland Jail, No. 22-CV-2294 (ER), 2023 WL 1438375, at *5 (S.D.N.Y. Feb. 1, 2023). “The right of pretrial detainees to be free from excessive force amounting to punishment is protected by the Due Process Clause of the Fourteenth Amendment.” Id. (citing United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999)). A pretrial detainee's excessive-force claim under the Fourteenth Amendment requires a showing that the “force purposely or knowingly used” was “objectively unreasonable.” Id. (quoting Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015)) (internal quotation marks omitted).
Previously, pretrial detainees asserting excessive-force claims had to satisfy a subjective and objective element, akin to what is required to prove a claim under the Eighth Amendment. See United States v. Walsh, 194 F.3d 37, 47-49 (2d Cir. 1999). A plaintiff had to show that the alleged wrongdoing was “objectively sufficiently serious or harmful enough” to cause a constitutional violation, id. at 50, and that the alleged wrongdoer subjectively “had the necessary level of culpability, shown by actions characterized by wantonness in light of the particular circumstances surrounding the challenged conduct,” Sims v. Artuz, 230 F.3d 14, 21 (2d Cir. 2000) (citations and internal quotation marks omitted). The Supreme Court's decision in Kingsley, however, “altered the test previously used in the Second Circuit for claims arising under the Fourteenth Amendment,” eliminating the subjective element. Portillo v. Webb, No. 16-CV-4731 (VEC) (GWG), 2022 WL 2337380, at *5 (S.D.N.Y. June 29, 2022), report and recommendation adopted, 2022 WL 16736980 (S.D.N.Y. Nov. 7, 2022) (citations omitted).
“Objective unreasonableness ‘turns on the facts and circumstances of each particular case,' and is to be evaluated ‘from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.'” Douglas v. City of New York, No. 18-CV-9327 (KPF), 2022 WL 294075, at *6 (S.D.N.Y. Feb. 1, 2022) (quoting Kingsley, 576 U.S. at 397). The Supreme Court in Kingsley articulated certain factors a court should look to when assessing the reasonableness of the force used, including:
the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.576 U.S. at 397; accord Portillo, 2022 WL 2337380, at *6; Prigden, 2023 WL 1438375, at *6. “The factfinder must also ‘take account of the legitimate interests in managing a jail, acknowledging as part of the objective reasonableness analysis that deference to policies and practices needed to maintain order and institutional security is appropriate.”' Frost v. New York City Police Dep't, 980 F.3d 231, 252 (2d Cir. 2020) (quoting Kingsley, 576 U.S. at 400).
Of course, an officers' use of a chemical agent, like a fire extinguisher or pepper spray, when required to respond to a fire or a fight is not per se unreasonable. See, e.g., Burke v. Browns, 653 Fed.Appx. 683, 698-99 (11th Cir. 2016) (holding that a correctional officer spraying a fire extinguisher into an inmate's cell after the inmate started a fire “is a response commensurate to the significant threat posed by a prison fire” and thus not “malicious and sadistic”). Instead, a court's review of an officer's use of a chemical agent will depend on the manner in which the chemical agent was used. See Quinones v. Rollison, No. 18-CV-1170 (AJN), 2020 WL 6420181, at *4-5 (S.D.N.Y. Nov. 1, 2020) (explaining that the inquiry is “context specific'”) (citations omitted). For example, courts have found that the use of pepper spray to maintain or restore discipline among inmates does not amount to excessive force “if the force was applied in a good-faith effort.” Stinson v. City of New York, No. 18-CV-00027 (LAK) (BCM), 2021 WL 3438284, at *13 (S.D.N.Y. July 6, 2021); see also Berry v. City of New York, No. 12-CV-7819 (RWS), 2014 WL 2158518, at *5 (S.D.N.Y. May 22, 2014) (finding evidence that officer used pepper spray to break up violent fight between inmates insufficient to raise a genuine dispute about excessive force and thus granting summary judgment to officer); Boomer v. Lanigan, No. 00-CV-5540 (DLC), 2002 WL 31413804, at *5-6 (S.D.N.Y. Oct. 25, 2002) (correction officer did not use excessive force when he sprayed “chemical agent” at pre-trial detainee, after detainee refused to follow repeated orders to remove his arm from food slot in his cell); Beauvoir v. Falco, 345 F.Supp.3d 350, 369 (S.D.N.Y. 2018) (granting defendants summary judgment in a § 1983 case because the “use of the pepper spray . . . was permissible in the context of needing to maintain a baseline of order in the prison system,” where “Plaintiff repeatedly resisted multiple officers' orders”). Likewise, use of a fire extinguisher would not amount to excessive force if the officers only inadvertently sprayed the inmate with the fire extinguisher while attempting to end a fire. See Beckford v. Portuondo, 151 F.Supp.2d 204, 216 (N.D.N.Y. 2001) (explaining that Eighth Amendment assault claim would fail if plaintiff was “not intentionally spray[ed]” but rather was “inadvertently” sprayed).
Resolution of Genao's excessive-force claim, based on Officer Nwosu's use of the fire extinguisher, hinges on the location of the fire. Genao does not dispute that he started a fire in the food slot and that he was inside his cell at the time of the fire. In his deposition, Genao testified
that the fire was contained to the food slot. See Genao Dep. at 213-14. And it is undisputed that Officer Nwosu opened the food slot and extinguished the fire there. See R. 56.1 Statement ¶ 10. Genao testified, however, that the fire was not inside his cell. Genao Dep. at 213-14. And Genao further testified after Officer Nwosu extinguished the fire in the food slot, he then proceeded to spray Genao with the fire extinguisher. Id. at 215. Defendants, however, contend that Genao also started a fire inside the cell, separate and apart from the fire in the food slot. Defs.' Mem. at 5. Resolution of this factual dispute precludes summary judgment in Defendants' favor.
As support for their argument that there was a fire inside the cell, Defendants rely on three pieces of evidence. First, Defendants point to video footage showing a mattress that was removed from Genao's cell immediately after the fire was extinguished. Defendants contend that the mattress was “burnt.” See Defs.' Reply at 5. Second, Defendants rely on a declaration from Captain McCarthy where she attests that she saw a fire inside Genao's cell. Captain McCarthy also describes areas of the mattress that were burnt. See ECF No. 97-7 at ¶¶ 10-11. Finally, Defendants rely on the incident report (ECF No. 97-2, “Incident Report”) and a video report by Captain McCarthy, where she recounts the incident (ECF No. 97, Exhibit E at 06:56-07:20) and states that there was a fire inside Genao's cell. See Defs.' Reply at 5.
As an initial matter, the video footage of the mattress does not conclusively support Defendants' description that the mattress was “burnt.” The video shows a mattress that appears to have a green, vinyl-like exterior covering with two adjacent tears in that cover, with one torn piece of the vinyl appearing to have a brown residue; the mattress filling is visible, and it is white. See ECF No. 97, Exhibit D at 05:18-06:50. One cannot say definitively from the image of the mattress on the video that the tears in the green, vinyl-like covering were caused by a fire.
Without the video footage, what remains is the competing testimony of Genao-that there was no fire inside his cell, Genao Dep. at 213-14-and the testimony of Captain McCarthy-that there was a fire inside the cell, ECF No. 97-7 at ¶¶ 10-11. It is undisputed that Officer Nwosu “opened the food slot” to extinguish the fire, see R. 56.1 Statement ¶ 10, which supports Genao's testimony that the fire was contained to the food slot. Whether Captain McCarthy's testimony to the contrary is credible presents a classic factual dispute for resolution by the jury. See Chen-Oster v. Goldman, Sachs & Co., No. 10-CV-6950 (AT) (RWL), 2022 WL 814074, at *27 (S.D.N.Y. Mar. 17, 2022) (denying summary judgment where there existed a disagreement on material factual issues, thereby “creating a dispute that must be resolved by a jury”) (citation omitted); see also Jeanty v. Cty. of Orange, 379 F.Supp.2d 533, 542 (S.D.N.Y. 2005) (denying summary judgment where plaintiff's testimony created a factual dispute); Rivera v. Madan, No. 10-CV-4136 (PGG), 2013 WL 4860116, at *11 (S.D.N.Y. Sept. 12, 2013) (denying summary judgment because resolution of the claim required “credibility determinations that are the province of a jury”) (citations omitted). If a jury resolves that dispute by concluding that the fire was contained in the food slot, then a rational jury could also conclude that Officer Nwosu intentionally-rather than inadvertently in the course of extinguishing a fire in the cell- sprayed Genao with the fire extinguisher. See Beckford, 151 F.Supp.2d at 216 (summary judgment in defendants' favor on excessive-force claim precluded where there existed material issues of fact as to whether correctional officers sprayed plaintiff in face and chest with fire extinguisher as punishment for misbehavior or inadvertently in the confusion surrounding the fire). I thus recommend that Defendants' motion for summary judgment as to this claim be denied.
B. Genao's Deliberate-Indifference Claim under the Fourteenth Amendment
Genao bases his deliberate-indifference claim on two separate acts. Genao alleges that Captain McCarthy was deliberately indifferent to his medical needs because he “gave his staff direct orders” to rear-handcuff Genao, despite a medical directive stating that Genao could not be rear-handcuffed. See Compl. at 7. Genao also alleges that Officer Freemantle was deliberately indifferent to Genao's medical needs when he sprayed Genao with OC spray. Id. at 7-8. Genao contends that this spraying occurred under the supervision of Captains McCarthy and Cohall. Id. at 8. Genao states that he has asthma, and that Officer Freemantle's use of the OC spray caused him to experience “shortness of breath, coldness in lungs, [and] stabbing pain in [the right lung].” Pl.'s Mem. at 2. Genao also alleges that Officer McCarthy was deliberately indifferent to Genao's medical needs because he required that Genao submit to a “strip search” after Genao had been sprayed with OC spray, which delayed Genao's eventual decontamination. See Compl. at 4; Pl.'s Mem. at 3.
In his Complaint, Genao alleges that Captain Moise was the supervisory captain for the incident on December 16, 2020, and that he ordered that Genao be rear-handcuffed. See Compl. at 5, 7. After discovery, the parties now agree that Moise was not the supervisory captain for the incident and that the supervisory captain was McCarthy. See R. 56.1 Statement ¶¶ 33-34; see also Genao Dep. at 226.
To the extent Genao claims in his opposition brief and in his sur-reply that Defendants were deliberately indifferent to his medical needs when they returned him to his cell prior to its decontamination, Pl.'s Mem. at 3; Pl.'s Sur-Reply at 1, the Court does not consider this claim. Genao's briefs are the first time he mentions a deliberate-indifference claim based on a contaminated cell. Genao did not include factual allegations in his complaint to support those grounds for a deliberate-indifference claim. “It is ‘inappropriate to raise new claims for the first time in submissions in opposition to a summary judgment motion' because it fails to ‘give defendants fair notice of the nature of plaintiff's claim' and thus undermines the purpose of Federal Rule of Civil Procedure 8(a).” Espinoza v. New York City Dep't of Transp., 304 F.Supp.3d 374, 384 (S.D.N.Y. 2018) (quoting Thomas v. Egan, 1 Fed.Appx. 52, 54 (2d Cir. 2001)). Therefore, because Genao did not set forth in his complaint facts supporting a claim for deliberate indifference as it relates to the timing of the decontamination of his cell, the Court will only consider his deliberate-indifference claim based on the use of OC Spray and rear handcuffing.
As to Genao's deliberate-indifference claim based on the use of rear-handcuffs, Defendants argue that Genao cannot sustain a claim for deliberate indifference because he never requested medical treatment for rear-handcuffing while he was at the clinic for this incident, and because he does not allege or prove any injury as a result of being rear-handcuffed. See Defs.' Mem. at 8-12. And as to the deliberate-indifference claim based on the use of OC spray, Defendants contend that Genao was decontaminated and received medical treatment after the incident, and he has not alleged any specific injury caused by being sprayed with OC spray. See id. at 8 n.2. For the reasons discussed below, I recommend that summary judgment be granted to Defendants as to this claim in its entirety.
Genao's deliberate-indifference claim based on conduct that occurred while he was a pretrial detainee is properly analyzed under the Fourteenth Amendment. See Colon v. City of New York, No. 8-CV-3142 (HB), 2009 WL 1424169, at *5 (S.D.N.Y. May 21, 2009) (citing Bryant v. Mafucci, 923 F.2d 979, 983 (2d Cir. 1991)). “The standard to be applied is identical to the deliberate indifference standard for prisoners under the Eighth Amendment's prohibition against cruel and unusual punishment.” Id. (citing City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) and Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000)); see also Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009) (“Claims for deliberate indifference to a serious medical condition or other serious threat to the health or safety of a person in custody should be analyzed under the same standard irrespective of whether they are brought under the Eighth or Fourteenth Amendment.”).
Deliberate-indifference claims under the Fourteenth Amendment have two prongs, one objective, the other subjective: (1) that the inmate's “medical condition is objectively a serious one”; and (2) that the official acted with “deliberate indifference” to the inmate's medical needs. Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003). To satisfy 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.'” Vazquez v. City of New York, No. 21-CV-1573 (PAE) (VF), 2022 WL 17370156, at *6 (S.D.N.Y. Dec. 2, 2022) (quoting Darnell v. Pineiro, 849 F.3d 17, 30 (2d Cir. 2017)). A plaintiff must allege “a deprivation that is ‘objectively, sufficiently serious' that he was denied ‘the minimal civilized measure of life's necessities.'” Patterson v. Ponte, No. 16-CV-3156 (PAE) (JCF), 2017 WL 1194489, at *5 (S.D.N.Y. Mar. 30, 2017) (quoting Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001)), report and recommendation adopted, 2017 WL 1405753 (S.D.N.Y. Apr. 17, 2017). “In determining whether a condition is sufficiently serious, courts consider ‘whether the condition significantly affects an individual's daily activities,' and ‘whether [the condition] causes chronic and substantial pain.'” Bradshaw v. City of New York, 855 Fed.Appx. 6, 10 (2d Cir. 2021) (quoting Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006) (alterations in the original)). “Although the Constitution does not require ‘comfortable' prison conditions, the conditions of confinement may not ‘involve the wanton and unnecessary infliction of pain.'” Id. (quoting Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013)). Each condition “must be measured by its severity and duration, not the resulting injury.” Darnell, 849 F.3d at 32.
Regarding the subjective component, “[i]n Darnell, [the Second Circuit] clarified that deliberate indifference, in the context of a Fourteenth Amendment due process claim can be shown by something akin to recklessness, and does not require proof of a malicious or callous state of mind.” Charles v. Orange County, 925 F.3d 73, 86, (2d Cir. 2019) (citing Darnell, 849 F.3d at 33-34). Therefore, deliberate indifference under the Fourteenth Amendment, “can be established by either a subjective or objective standard: A plaintiff can prove deliberate indifference by showing that the defendant official “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 [the plaintiff's] health or safety.” Id. at 87 (quoting Darnell, 849 F.3d at 35 (emphasis and alterations in the original)). A plaintiff “need not show that a prison official acted or failed to act believing that harm would actually befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 842 (1970). A plaintiff must show “something more than mere negligence” to establish deliberate indifference in the Fourteenth Amendment context. Charles, 925 F.3d at 87 (quoting Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996)).
Beginning with the rear-handcuffing, Genao has not adduced facts to demonstrate that he suffers from a sufficiently serious medical condition. Genao does not articulate any medical condition that he suffers from, nor does he claim that the rear-handcuffing subjected him to any kind of pain. See Pl.s' Mem. at 5. Even a medical condition such as a broken or fractured hand is not considered a serious medical condition, and Genao has not even alleged any such injury here. See Osacio v. Greene, No. 08-CV-0018 (TJM), 2009 WL 3698382, at *5 (N.D.N.Y. Nov. 2, 2009) (finding that broken metacarpal (hand bone) does not constitute serious medical condition and collecting cases discussing the same); Ruiz v. Homerighouse, No. 01-CV-0266 (JTE), 2003 WL 21382896, at *3 (W.D.N.Y. Feb. 13, 2003) (dismissing deliberate-indifference claim as a matter of law because fractured metacarpal was not sufficiently serious medical condition). Additionally, Genao has not asserted that he was in any pain because of the rear-handcuffing, nor has he put forth any evidence substantiating or documenting the frequency or severity of any such pain. Although “[c]onclusory allegations of pain are insufficient to satisfy the objective prong of a medical indifference claim,” Trapani v. Dagostino, No. 18-CV-0805 (DNH) (CFH), 2018 WL 9815971, at *16 (N.D.N.Y. Sept. 12, 2018), Genao did not even complain of hand-related pain when he was evaluated at the clinic. See Genao Dep. at 221-222; Genao's Medical Records at DEF 910, 912-13. Nor did Genao seek medical treatment for being rear-handcuffed. R 56.1 Statement ¶ 23; see also Genao Dep. at 221-222; Genao's Medical Records at DEF 910, 912-13.
There is nothing in Genao's medical records detailing the nature of any hand-related injury. At most, there is the medical directive stating “Front cuff only . . . No Rear Cuff.” See Compl. at 13. But that directive does not list a medical condition or explain why rearhandcuffing could not be used on Genao. Because Genao has failed to adduce any evidence from which a rational factfinder could conclude that he suffered from a sufficiently serious condition to constitute a serious medical condition, he has not satisfied the objective prong of a deliberate-indifference claim.
Even if Genao had shown that he had an injury caused by the rear-handcuffing that was sufficiently serious, he has also failed to offer evidence that Officer McCarthy acted intentionally or recklessly or failed to act with reasonable care to mitigate the threat to Genao's health even though he knew, or should have known, that the condition posed an excessive risk to Genao's health. Swinson v. City of New York, No. 19-CV-11919 (KPF), 2022 WL 142407, at *9 (S.D.N.Y. Jan. 14, 2022). Arguing that he should not have been rear-cuffed, Genao relies on the medical directive appended to his Complaint, which indicates that he requires restraint modifications such as: “Front cuff only . . . No Rear Cuff.” Compl. at 13. Even assuming that Officer McCarthy knew of the medical directive, as already discussed, it is not sufficiently detailed as to the type of hand condition Genao suffered from. Although it indicates “front cut only” and “no rear cuff,” it does not explain why Genao could not be rear-cuffed. See id. Nor does the medical directive identify any medical condition corresponding to Genao's arm, shoulder, or hand. See id. In short, the medical directive does not contain any information from which Captain McCarthy could have, or should have known, that directing Genao to be rear-cuffed would pose “an excessive risk to health or safety.” Swinson, 2022 WL 142407, at *9 (citing Darnell, 849 F.3d at 35) (emphasis added); see also Perkins v. Schriro, No. 11-CV-814 (GBD)(JCF), 2012 WL 5909892, at *2 (S.D.N.Y. Nov. 21, 2012) (finding corrections officer did not act in a sufficiently culpable manner when he was not made specifically aware of plaintiff's condition or its gravity beyond the fact that the condition was listed on a medical transfer form). Genao has failed to adduce any evidence that Captain McCarthy acted with a “‘sufficiently culpable state of mind,'” Colon, 2009 WL 1424169, at *5 (quoting Farmer, 511 U.S. at 834), and thus Genao has not adduced any evidence to establish the subjective prong of a deliberate-indifference claim.
Turning to Genao's claim based on the use of OC spray by Officer Freemantle, that claim also fails because Genao points to no evidence to support either the objective or subjective prongs of the deliberate-indifference claim. Genao specifically faults Officer Freemantle, Captain McCarthy, and Captain Cohall for subjecting him to a strip search after being exposed to the OC spray, thereby delaying his eventual decontamination. See Compl. at 8; Pl.'s Mem. at 3. It is undisputed, however, that Genao was taken to the “[s]hower pen” to be decontaminated and then taken to the clinic for further decontamination and treatment within one hour of having been sprayed with OC spray. R. 56.1 Statement ¶¶ 13, 15-16; see also Geno Dep. at 220; Genao's Medical Records at 912-13; Incident Report at 18, 21, 26, 28. Genao's medical records from the clinic confirm that he was “allowed to decontaminate” upon arrival. See Genao's Medical Records at DEF 912. The medical records also indicate that Genao's respiration was “regular” and that he was not suffering from any “serious injury.” Id. The fact that Genao was treated within one hour of the exposure to OC spray undermines any claim that Defendants were deliberately indifferent to a serious medical need. See Flemming v. Kemp, No. 09-CV-1185 (TJM) (DRH), 2012 WL 4094196, at *15 (N.D.N.Y. Aug. 30, 2012) (granting summary judgment and dismissing deliberate-indifference claim based on exposure to chemicals where officers escorted plaintiff directly to a decontamination room, provided him with a shower, and removed his clothing), report and recommendation adopted, 2012 WL 4094009 (N.D.N.Y. Sept. 17, 2012); Blond v. City of Schenectady, No. 10-CV-0598, 2010 WL 4316810 (JTE), at *5 (N.D.N.Y. Oct. 25, 2010) (denial of ability to rinse eyes for 30 to 60 minutes after being sprayed with chemical agent was not serious medical need).
At the clinic, Genao also stated that “he ingested the equivalent of a tablespoon full of the yellow chemical powder from the fire extinguisher” and complained that his stomach was “burning.” R. 56.1 Statement ¶¶ 25-26; see also Genao's Medical Records at DEF 911, 912; Genao's Dep. at 221-22.
And, even if Genao had shown that he had an injury caused by the OC spray exposure that was sufficiently serious, he has nonetheless failed to offer evidence that Officer Freemantle, Captain McCarthy, or Officer Cohall acted intentionally or recklessly failed to act with reasonable care to mitigate the threat to Genao's health even though they knew, or should have known, that the conditions posed an excessive risk to Genao's health. Swinson v. City of New York, No. 19-CV-11919 (KPF), 2022 WL 142407, at *9 (S.D.N.Y. Jan. 14, 2022). Genao argues that the OC spray should not have been used because the medical directive also indicates that “No Chemical Agents” should be used. Compl. at 13. However, even assuming that Officer Freemantle, Captain McCarthy, and Captain Cohall knew of the medical directive, it is not sufficiently detailed with regard to what kind of condition Genao suffered. Here, too, the directive does not identify any corresponding medical condition related to the prohibition against “Chemical Agents.” The medical directive thus does not contain any information from which Officer Freemantle, Captain McCarthy, or Captain Cohall could have, or should have, known that spraying Genao with OC spray would pose “an excessive risk to health or safety.” Swinson, 2022 WL 142407, at *9 (citing Darnell, 849 F.3d at 35) (emphasis added); see also Perkins, 2012 WL 5909892, at *2. Because Genao has failed to show that when he was sprayed with the OC spray Officer Freemantle, Captain McCarthy, and Captain Cohall acted with a “‘sufficiently culpable state of mind,'” Colon, 2009 WL 1424169, at *5 (quoting Farmer, 511 U.S. at 834), he fails to satisfy the subjective prong of a deliberate-indifference claim as it relates to the use of OC spray.
In sum, there is no evidence in the record to support either the subjective or objective prongs of Genao's deliberate-indifference claim. I therefore recommend that summary judgment be granted to Defendants on Genao's deliberate-indifference claim in its entirety.
C. Municipal Liability
Genao alleges that DOCs employees “blatant[ly] abuse and violat[e] inmates' . . . rights and services.” Compl. at 12. Genao also alleges that the City is aware of the “history” of this “blatant[] violation of standard protocols, policy, and procedures.” Id. Further, Genao alleges that the City is aware of DOCs employees' “history of conspiring, concealing and falsifying of government documentation,” and have “failed to adequately, train, supervise and discipline their employees.” Id.
“The language of § 1983 makes clear that ‘Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort.'” Diarra v. City of New York, No. 16-CV-7075 (VSB), 2018 WL 4538903, at *4 (S.D.N.Y. Sept. 20, 2018), aff'd, 771 Fed.Appx. 69 (2d Cir. 2019) (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978)). To succeed on his claim against the City under § 1983 based on acts of the individual defendants, Genao must show: “(1) actions taken under color of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an official policy of the municipality caused the constitutional injury.” Cowan v. City of Mount Vernon, 95 F.Supp.3d 624, 636 (S.D.N.Y. 2015) (quoting Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008)).
To successfully establish the existence of a ‘policy' or ‘custom,' Genao must prove: “(1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question; (3) a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage of which a supervising policy-maker must have been aware; or (4) a failure by policymakers to provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees.” Brandon v. City of New York, 705 F.Supp.2d 261, 276-77 (S.D.N.Y. 2010) (citations omitted). Merely providing “[p]roof of a single incident of unconstitutional activity” is insufficient to impose municipal liability, “unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) (plurality opinion); see also Cowan, 95 F.Supp.3d at 637 (“Generally, a custom or policy cannot be shown by pointing to a single instance of unconstitutional conduct by a mere employee of the municipality.”) (internal quotation marks omitted); Guerrero v. City of New York, No. 12-CV-2916 (RWS), 2013 WL 673872, at *3 (S.D.N.Y. Feb. 25, 2013) (“[B]oilerplate assertions of a municipal policy or custom . . . without offering any accompanying factual support . . . are insufficient to state a claim for [municipal] liability.”).
Defendants argue that Genao's municipal liability claim should be dismissed because he has failed to adduce any evidence to support his allegations. See Defs.' Mem. at 14-16. They are correct. In his Complaint, Genao alleges generally that Defendants' customs and policies violate his and other inmates' constitutional rights. See Compl. at 12. Genao does not point to any evidence in the record to support such an allegation. “The mere assertion, however, that a municipality has such a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference.” Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993) (overruled on other grounds); see also Weir v. City of New York, No. 5-CV-9268 (DFE), 2009 WL 1403702, at *3 (S.D.N.Y. May 19, 2009). As the only support for his municipal liability claim, Genao points to the camera in his cell being inoperable at the time of the incident. See Pl.'s Mem. at 4. But Genao has not adduced any evidence to support an inference that the inoperability of the camera was anything other than a hardware malfunction or was in any way deliberately caused by a city employee. And even if the camera inoperability was caused by the malfeasance of a city employee, Genao “has not provided any evidence that any municipal employee's actions were undertaken in accordance with or pursuant to a policy or custom” of the City. See Sutton v. City of Yonkers, No. 13-CV-801 (GBD) (GWG), 2015 WL 390189, at *6 (S.D.N.Y. Jan. 26, 2015), report and recommendation adopted, 2015 WL 876459 (S.D.N.Y. Mar. 2, 2015).
In short, Genao has not adduced any evidence from which a reasonable factfinder could conclude that the individual Defendants were acting pursuant to a policy or custom of either DOCs or the City. See Brock v. City of New York, No. 15-CV-1832 (VSB), 2018 WL 3579099, at *12 (S.D.N.Y. July 25, 2018) (granting summary judgment on a municipal liability claim where the plaintiff offered “no direct or circumstantial evidence of a municipal policy, custom, or practice”) (emphasis added); see also CILP Associates, L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (noting that, when the movant points to a lack of evidence on an element on which the nonmovant would bear the burden of proof at trial, “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment”). I therefore recommend that summary judgment be granted to the City on Genao's claim of municipal liability. See Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 222 (2d Cir. 2004) (affirming summary judgment for County on § 1983 claim where plaintiff relied solely on conclusory assertions concerning the existence of a policy or custom).
D. Conditions of Confinement
Genao alleges that he was subjected to unconstitutional conditions of confinement when he was “deadlocked” in his cell on December 17, 2020, and denied access to food, medication, the “court,” recreation, and showers. Compl. at 9. For the reasons explained below, I recommend that Defendants' summary judgment motion be granted.
When addressing this claim in his opposition briefs, Genao focuses on allegations that he was returned to a cell that was not decontaminated. See Pl.'s Mem. at 6-7; Pl.'s Sur-Reply at 3. Like the deliberate-indifference claim related to decontamination, Genao's briefs are the first time he mentions a conditions-of-confinement claim as it relates to decontamination. Therefore, for the reasons explained above, see supra at 13 n.9, the Court will only consider Genao's conditions-of-confinement claim as it relates to Genao's allegation that he was “deadlocked” and denied access to food, medication, the “court,” recreation, and showers.
Because Genao was a pretrial detainee at the time of these allegations, this claim, too, is properly analyzed under the Fourteenth Amendment. See Darnell, 849 F.3d at 29 (“A pretrial detainee's claims of unconstitutional conditions of confinement are governed by the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishments Clause of the Eight Amendment.”) (citations omitted). Claims of unconstitutional conditions of confinement under the Fourteenth Amendment must satisfy both a subjective and objective prong. See Id. Under the subjective prong, Genao “must allege ‘that the officer acted with at least deliberate indifference to the challenged actions.”' Fullewellen v. City of New York, No. 1:21-CV-7219 (MKV), 2023 WL 2390551, at *5 (S.D.N.Y. Mar. 7, 2023) (quoting Darnell, 849 F.3d at 29). The subjective prong has been “defined objectively” by the Second Circuit, meaning that Genao “must allege facts suggesting 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 defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety.'” Id. (quoting Darnell, 849 F.3d at 35). To satisfy the objective prong, Genao must allege conditions that “either alone or in combination, pose an unreasonable risk of serious damage to . . . health.” Darnell, 849 F.3d at 30.
Other than alleging that he was “deadlocked” in his cell “the entire 7-3 pm tour,” Genao's Complaint is devoid of factual allegations explaining the conditions under which he was confined during that time. See Compl. at 9. Nor has Genao pointed to any evidence in his briefs to support the allegations in the Complaint. And Genao's allegation that he was “deadlocked” in his cell for eight hours is insufficient to satisfy the objective prong of his conditions-of-confinement claim. Genao does not allege that he was denied access to food, medication, the “court,” recreation, or showers outside of the eight-hour window during which he was in his cell. See id. Even if these deprivations occurred, the duration was too short to satisfy the objective component of a conditions-of-confinement claim. See, e.g., Daniels v. Carter, No. 21-CV-8985 (AT) (SLC), 2022 WL 17979915, at *9 (S.D.N.Y. Nov. 22, 2022) (eight-hour deprivation of food is not “objectively, sufficiently serious to give rise to a constitutional violation as a matter of law”) (quoting Farmer, 511 U.S. at 834) (internal quotation marks omitted), report and recommendation adopted, 2022 WL 17978908 (S.D.N.Y. Dec. 28, 2022); Diggs v. Marikah, No. 11-CV-6382 (PAE), 2013 WL 227728, at *4 (S.D.N.Y. Jan. 22, 2013) (120-day administrative segregation not sufficient to constitute Eighth Amendment violation); Thomas v. Hopkins, No. 20 CIV. 9709 (NSR), 2022 WL 2758489, at *5 (S.D.N.Y. July 14, 2022) (the denial of a single dose, or even several doses, of a needed medication is insufficient, without more, to establish a violation of the Eighth Amendment); Dillon v. City of N.Y., No. 12-CV-6746 (LAP), 2013 WL 3776252, at *6 (S.D.N.Y. July 18, 2013) (“A deprivation of access to shower and toothpaste for one morning . . . plainly do[es] not rise to the level of an objective [constitutional] violation.”); Herbert v. Smith, No. 20-CV-06348 (PMH), 2021 WL 3292263, at *6 (S.D.N.Y. Aug. 2, 2021) (‘“Occasional restrictions on recreation . . . as a matter of law, do not constitute a ‘severe deprivation.'”) (quoting Ponte, 2017 WL 1194489, at *5).
Lastly, as it relates specifically to Genao's allegation that he was denied access to the “court,” a claim based on that deprivation also fails. While “[i]t is well-settled that inmates have a constitutional right of reasonable access to the courts . . . [p]rison officials are not required to ensure that inmates have unlimited access.” McCoy v. Goord, 255 F.Supp.2d 233, 260 (S.D.N.Y. 2003) (citing Ahlers v. Carrillo, No. 94-CV-7945 (DC), 1997 WL 167049, at *3 (S.D.N.Y. Apr. 9, 1997)). Therefore, “not every interference with this right,” constitutes “a constitutional violation.” Id. Genao does not allege that he was entirely denied access to the courts. Instead, Genao points to a single instance where he was deprived of such access. See Compl. at 9. Further, Genao has failed to allege that this “deprivation actually impaired a legal claim,” which he must do to establish a constitutional violation. McCoy, 255 F.Supp.2d at 260 (citing Shabazz v. Vacco, No. 97-CV-3761 (DC), 1998 WL 901737, at *1 (S.D.N.Y. Dec. 28, 1998)).
Therefore, I recommend that Defendants' motion for summary judgment be granted as to Genao's conditions-of-confinement claim.
E. 18 U.S.C. §§ 1001 and § 242
Genao seeks to enforce the criminal penalties of 18 U.S.C. § 1001 against Warden Harvey, Cynthia Brann, Commissioner of the City Department of Corrections, Captain Moise, Officer Freemantle, and Captain Cohall, and the criminal penalties of 18 U.S.C. § 242 against Officer Freemantle, Captain Moise, and Officer Nwosu. See Compl. at 14-15.
18 U.S.C. § 1001 criminalizes knowingly and willfully falsifying or misrepresenting material facts “in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.” 18 U.S.C. § 1001(a)(1)-(2). 18 U.S.C. § 242, on the other hand, criminalizes acting “under the color of [] law” to deprive a person “of any rights, privileges, or immunities secured or protected by the Constitution.”
Genao acknowledges in his opposition brief that he “cannot assert criminal statutes in a civil proceeding.” Pl.'s Mem. at 4. He is correct. Courts “have long recognized that crimes are prosecuted by the government, not by private parties.” Hill v. Didio, 191 Fed.Appx. 13, 14-15 (2d Cir. 2006) (summary order) (citation omitted). Further, “[w]here Congress has not explicitly provided for a private right of action under a criminal statute, the Supreme Court has rarely implied one.” Vidurek v. Pollen, No. 20-CV-6714 (CS), 2021 WL 4066503, at *11 (S.D.N.Y. Sept. 7, 2021) (citing Chrysler Corp. v. Brown, 441 U.S. 281, 316 (1979)).
As it specifically pertains to 18 U.S.C. §§ 1001 and 242, courts have recognized that Congress did not expressly provide a private right of action under those statutes. See Caron v. TD Ameritrade, No. 19-CV-9015 (AJN), 2020 WL 7027593, at *3 (S.D.N.Y. Nov. 30, 2020) (no private right of action under 18 U.S.C. § 1001); Bender v. General Services Admin., No. 05-CV-6459 (GEL), 2006 WL 988241, at * 1 (S.D.N.Y. Apr. 14, 2006) (same); Ng v. HSBC Mortg. Corp., No. 07-CV-5434 (RRM) (VVP), 2010 WL 889256, at *9 (E.D.N.Y. Mar. 10, 2010) (same); Hill, 191 Fed.Appx. at 14 (no private right of action under 18 U.S.C. § 242); Lewis v. City of Newburgh, No. 20-CV-7973 (CS), 2021 WL 6052135, at *9 (S.D.N.Y. Dec. 20, 2021) (same); Vidurek v. Pollen, No. 20-CV-6714 (CS), 2021 WL 4066503, at *11 (S.D.N.Y. Sept. 7, 2021) (same); Jimenez v. Chase Bank, No. 18-CV-3297 (GHW) (SN), 2019 WL 919626, at *3 (S.D.N.Y. Jan. 28, 2019) (same), report and recommendation adopted, 2019 WL 917210 (S.D.N.Y. Feb. 25, 2019); see also Zahl v. Kosovsky, No. 08-CV-8308 (LTS) (THK), 2011 WL 779784, at *10 (S.D.N.Y. Mar. 3, 2011) (“[I]n determining whether a criminal statute implies a private right of action ‘the “dispositive question” is whether Congress intended to create a private right of action,' and courts ‘are to be “especially reluctant” to imply a private right of action where the statute explicitly provides a different remedy.'”) (quoting Alaji Salahuddin v. Alaji, 232 F.3d 305, 308 (2d Cir. 2000)).
Accordingly, because there is no private right of action under either 18 U.S.C. §§ 1001 or 242, I recommend that these claims be dismissed as well.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Defendants' motion for summary judgment be DENIED as to Genao's excessive-force claim based on Officer Nwosu's use of the fire extinguisher. Because Defendants did not move for summary judgment as to Genao's excessive-force claim as it relates to Officer Freemantle's use of the OC spray, that claim also survives. I recommend that Defendants' motion for summary judgment be GRANTED as to the following: deliberate-indifference claim based on rear-handcuffing and the use of the OC spray; municipal liability claim against the City and Commissioner Brann; conditions of confinement claim; and claims under 18 U.S.C. §§ 1001 and 242.
SO ORDERED.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed. R. Civ. P. 6(a), 6(b), 6(d).
A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the Honorable Analisa Torres. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Fed.R.Civ.P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).