Opinion
1:20-cv-09493 (LTS) (SDA)
09-27-2021
Ricardo Gil-Cabrera, Plaintiff, v. Department Of Corrections et al., Defendants.
TO THE HONORABLE LAURA TAYLOR SWAIN, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.
INTRODUCTION
Plaintiff, a pretrial detainee currently incarcerated at the Vernon C. Bain Center (“VCBC”), brings this pro se action under 42 U.S.C. 1983 against the City of New York, Cynthia Brann, Commissioner of the New York City Department of Correction (“DOC”), Margaret Egan, Executive Director of the Board of Correction and Patsy Yang, Senior Vice President for Correctional Health Services at New York City Health and Hospital Corporation (“HHC”) (collectively “Defendants”). (Second. Am. Compl. (“SAC”), ECF No. 10.) Plaintiff alleges that, for the period September 22, 2020 through December 6, 2020, the conditions at VCBC were unsafe given the COVID-19 pandemic and that Defendants were deliberately indifferent to the serious risk of his contracting COVID-19. (Id.; see also Order, ECF No. 20.) Now before the Court is Defendants' partial motion, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss Plaintiff's claims against Brann, Egan and Yang (together, the “Individual Defendants”) and his claims pursuant to the Equal Protection Clause of the United States Constitution and for punitive damages. (Notice of Motion, ECF No. 25)
The Court notes that Vincent Schiraldi was named DOC Commissioner effective June 1, 2021.
For the reasons set forth below, I respectfully recommend that Defendants' partial motion to dismiss be GRANTED.
For purposes of this motion, the Court accepts Plaintiff's allegations as true and draws all reasonable inferences in his favor. See City of Providence v. BATS Glob. Mkts., Inc., 878 F.3d 36, 50 (2d Cir. 2017).
Plaintiff alleges that, during the relevant time period, Brann, Yang and Egan acknowledged the “legal inside gathering mandates” of 50% capacity set by then New York Governor Andre Cuomo and New York City Mayor Bill DeBlasio, as well as social distancing requirements, but that the conditions in his housing area at VCBC did not comply with these requirements. (SAC at 4.) Plaintiff alleges that he was housed in an open dormitory setting and that the beds were “behind one another 3-4 inches apart and across from one another 3-4 feet” with no dividers. (Id.) Plaintiff further alleges that his dormitory stayed between 40 to 50 people, with 50 being 100% capacity. (Id.) In addition, Plaintiff alleges that detainees shared sinks, toilets and showers with all 50 people. (Id.) Plaintiff filed a complaint to 311 regarding these conditions. (Id.) Plaintiff also alleges that new admissions were not being properly screened for COVID-19 because they were admitted before receiving the test results from COVID-19 screening tests. (Id.) Plaintiff alleges that Defendants “intentionally ignore[d] or covered up these acts.” (Id. at 5.) Plaintiff alleges that he has asthma and that the conditions scared him. (Id.)
Although Plaintiff indicates that he attached a copy of the complaint as Exhibit A, there is no exhibit attached to the SAC.
PROCEDURAL HISTORY
Plaintiff filed his original Complaint with 49 other VCBC detainees. (Compl., ECF No. 2.) On November 9, 2020, the Court severed the matter into separate civil actions. (11/9/2021 Order, ECF No. 1.) Plaintiff filed an Amended Complaint on November 24, 2020. (Am. Compl., ECF No. 6.) By Order dated December 21, 2020, Chief Judge Swain directed Plaintiff to amend his pleading. (Order to Amend, ECF No. 9.) Plaintiff filed his Second Amended Complaint on January 4, 2021. (SAC, ECF No. 10.) On January 15, 2021, Chief Judge Swain referred this action to me for general pretrial purposes. (Order Referring Case to Magistrate Judge, ECF No. 11.) On February 18, 2021, the Court entered an Order that, among other things, deemed the SAC amended to substitute the City of New York as a defendant in place of the Department of Correction. (Order, ECF No. 20.)
On April 23, 2021, Defendants filed the partial motion to dismiss that is now before the Court. On April 27, 2021, Chief Judge Swain referred this action to me for a report and recommendation on the pending motion. (Amended Order Referring Case to Magistrate Judge, ECF No. 28.) The same day, the Court set June 11, 2021 as the deadline for Plaintiff to file any response to the partial motion to dismiss. (Order, ECF No. 29.) Plaintiff has not filed any opposition to Defendants' motion.
LEGAL STANDARDS
To survive a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim is facially plausible if the complaint contains ‘factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Nguyen v. FXCM Inc., 364 F.Supp.3d 227, 239 (S.D.N.Y. 2019). The Court “must accept as true all of the allegations contained in the complaint[, ]” but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted); see also Nguyen 364 F.Supp.3d at 239 (“The Court need not accept as true, ‘legal conclusions, deductions, or opinions couched as factual allegations.'”) (quoting In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007)).
Where, as here, a plaintiff is proceeding pro se, the Court must “construe his complaint liberally and interpret it ‘to raise the strongest arguments that it suggests.'” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (quoting Harris v. City of N.Y., 607 F.3d 18, 24 (2d Cir. 2010)). “Accordingly, courts apply a more flexible standard when evaluating the sufficiency of a pro se litigant's complaint than when reviewing a complaint submitted by counsel.” Stokes v. de Blasio, No. 17-CV-07890 (JGK), 2019 WL 132279, at *2 (S.D.N.Y. Jan. 8, 2019) (alteration omitted). “This liberal pleading standard, however, does not excuse a pro se plaintiff from providing sufficient factual allegations that state a plausible claim.” Id. (internal quotation marks and alteration omitted).
II. 42 U.S.C. 1983
To state a claim under 1983, a plaintiff “must allege that (1) defendants are state actors or acted under color of state law at the time of the challenged action, and (2) the challenged action deprived him of a right secured by the Constitution or federal law.” Dawkins v. Copeland, No. 17-CV-09926 (ER), 2020 WL 1529161, at *6 (S.D.N.Y. Mar. 31, 2020) (citing Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)). “Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere.” Id. (quoting Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993)).
DISCUSSION
I. Plaintiff's Equal Protection Claim Should Be Dismissed
The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. “The clause ‘is essentially a direction that all persons similarly situated should be treated alike.'” Braxton/Obed-Edom v. City of New York, No. 17-CV-00199 (GBD) (SDA), 2018 WL 11316020, at *12 (S.D.N.Y. Dec. 20, 2018), report and recommendation adopted, 368 F.Supp.3d 729 (S.D.N.Y. 2019) (quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985)). To state a cognizable Equal Protection claim “a plaintiff must allege purposeful discrimination directed at an identifiable or suspect class or that, as a class of one, he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Leneau v. Ponte, No. 16-CV-00776 (GHW), 2018 WL 566456, at *5 (S.D.N.Y. Jan. 25, 2018) (internal citations omitted). However, “[t]o establish any theory of an Equal Protection violation, a plaintiff must demonstrate that he is treated differently than others who are similarly situated.” Randolph v. DOCCS, No. 17-CV-00700 (NSR), 2018 WL 4374006, at *5 (S.D.N.Y. Sept. 13 2018) (citing cases).
There are three types of equal protection claims: (1) selective enforcement; (2) discriminatory intent; and (3) class of one. See Braxton, 2018 WL 11316020, at *12 n.15. “Both selective enforcement and discriminatory intention require a demonstration that ‘the conduct was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitution[al] rights, or malicious or bad faith intent to injure a person.'” Id. (quoting Le Clair v. Saunders, 627 F.2d 606, 609-10 (1980)). “The class of one theory permits a plaintiff, not in a protected class, to state a cognizable claim if she establishes that ‘she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.'” Id. (quoting Analytical Diag. Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d Cir. 2010)).
Here, Plaintiff does not allege that he is a member of a protected class, or that he was treated differently from similarly situated inmates on an impermissible basis. Although Plaintiff alleges that he was treated differently than people who are not in custody, “inmates are not, by virtue of being inmates, members of a protected class[, ]” Lopes v. Westchester Cnty., No. 18-CV-08205 (KMK), 2020 WL 7029002, at *9 (S.D.N.Y. Nov. 30, 2020), and no reasonable jury could find that Plaintiff was similarly situated to someone not in custody. See Id. at *8 (Although “[g]enerally, whether two comparators are similarly situated is a factual issue that should be submitted to the jury. . . [a]t the motion to dismiss stage . . . a court still must determine whether, based on a plaintiff's allegations in the complaint, it is plausible that a jury could ultimately determine that the comparators are similarly situated.”) (internal citations and quotation marks omitted); see also Crippen v. Town of Hempstead, No. 07-CV-03478 (JFB) (ARL), 2013 WL 1283402, at *6 (E.D.N.Y. Mar. 29, 2013) (plaintiffs seeking to state a class-of-one claim “must demonstrate that they were treated differently than someone who is prima facie identical in all relevant respects”). Accordingly, I recommend that the Court dismiss Plaintiff's equal protection claim.
II. Plaintiff's Conditions Of Confinement Claims Against The Individual Defendants Should Be Dismissed
“A pretrial detainee's claims of unconstitutional conditions of confinement are governed by the Due Process Clause of the Fourteenth Amendment[.]” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). “A pretrial detainee may establish a § 1983 claim for allegedly unconstitutional conditions of confinement by showing that the [defendants] acted with deliberate indifference to the challenged conditions.” Id. “This means that a pretrial detainee must satisfy two prongs to prove a claim, an ‘objective prong' showing that the challenged conditions were sufficiently serious to constitute objective deprivations of the right to due process, and a ‘subjective prong' - perhaps better classified as a ‘mens rea prong' or ‘mental element prong'-showing that the officer acted with at least deliberate indifference to the challenged conditions.” Id. To meet the mens rea prong for claims under the Fourteenth Amendment, a plaintiff must show that a defendant “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.at 35 (citing Kingsley v. Hendrickson, 576 U.S. 389 (2015)).
Courts have recognized that the term “subjective prong” is misleading because “the Supreme Court has instructed that ‘deliberate indifference' roughly means ‘recklessness,' but ‘recklessness' can be defined subjectively (what a person actually knew, and disregarded), or objectively (what a reasonable person knew, or should have known).” Darnell, 849 F.3d at 29 (quoting Farmer v. Brennan, 511 U.S. 825, 836-37 (1994)).
“[A] defendant in a § 1983 action may not be held liable for damages for constitutional violations merely because [he or she] held a high position of authority.” Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); see also Iqbal, 556 U.S. 662, 676 (2009) (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.”) Accordingly, “[t]o hold a state official liable under § 1983, a plaintiff must plead and prove the elements of the underlying constitutional violation directly against the official.” Tangreti v. Bachmann, 983 F.3d 609, 620 (2d Cir. 2020).
In Tangreti, the Second Circuit rejected the previously relied upon test for supervisory liability set forth in Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). See Tangreti, 983 F.3d at 616 (“Iqbal holds that a plaintiff may not rely on a special test for supervisory liability.”). Accordingly, although Defendants cite to the Colon factors in their memorandum of law, the Court does not consider them.
Plaintiff alleges that Brann, Yang and Egan “acknowledged” capacity restrictions and social distancing requirements for indoor gatherings, but that the conditions in his housing area at VCBC did not comply with these requirements. (SAC at 4.) Plaintiff further alleges that he made a complaint to 311 regarding the conditions. (Id.) In addition, Plaintiff alleges that Defendants knew or should have known that individuals being admitted to VCBC were not properly screened for COVID-19 because, although they were tested, they were admitted before the test results were available. (Id.) Finally, Plaintiff alleges that “Defendants” were deliberately indifferent because they “intentionally ignored or cover[ed]-up these acts.” (Id. at 5.)
“[C]orrectional officials have an affirmative obligation to protect inmates from infectious disease.” Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996). “It is ‘undisputed-and, indeed, by now common knowledge-that COVID-19 is a highly dangerous disease that poses a significant risk of severe illness and death.'” James v. Annucci, No. 20-CV-06952 (CJS), 2021 WL 3367530, at *2 (W.D.N.Y. Aug. 3, 2021) (quoting Martinez-Brooks v. Easter, 459 F.Supp.3d 411, 440 (D. Conn. 2020)); see also Fernandez-Rodriguez v. Licon-Vitale, 470 F.Supp.3d 323, 349 (S.D.N.Y. 2020) (“Put simply, COVID-19 stands with the roster of infectious diseases from which correctional officials have an affirmative obligation to protect inmates.”) (citing cases) (internal quotation marks omitted). Accordingly, courts have found that “an inmate can face a substantial risk of serious harm in prison from COVID-19 if a prison does not take adequate measures to counter the spread of the virus.” Chunn v. Edge, 465 F.Supp.3d 168, 200 (E.D.N.Y. 2020) (citing cases).
Plaintiff alleges that the conditions in his housing area failed to comply with capacity limitations and social distancing guidelines to prevent the spread of the virus and that detainees were admitted prior to receiving COVID-19 test results. (SAC at 4.) Although Plaintiff does not allege that Defendants failed to take any measures to protect him and other detainees from COVID-19 or that he actually was exposed to or contracted COVID-19, the Court finds, at this stage of the proceeding, that Plaintiff plausibly has alleged that he faced a substantial risk of serious harm based on the conditions at VCBC. Cf. Ruffino v. Cook, No. 21-CV-00311 (VAB), 2021 WL 1946395, at *2-3 (D. Conn. May 15, 2021) (allegations related to spread of COVID-19 sufficient to satisfy first prong); see also Martinez-Brooks, 459 F.Supp.3d at 440 (“The cornerstone of the public health response to COVID-19 is to practice ‘social distancing.'”).
As to the second prong, however, the Court finds that Plaintiff has not adequately alleged that Brann, Yang or Egan intentionally or recklessly failed to act with reasonable care to mitigate the risk that the alleged conditions posed to Plaintiff. Plaintiff does not allege that Brann, Yang or Egan knew or should have known about the particular conditions at VCBC and their supervisory positions are not sufficient, without more, to show that they were or should have been aware of such conditions. See Smith v. Westchester Cnty., No. 19-CV-03605 (NSR), 2021 WL 2856515, at *7 (S.D.N.Y. July 7, 2021) (“a defendant's high position or rank is not sufficient in and of itself to show that the defendant is, or should be aware of something-plaintiffs need more factual support showing why or how defendants are or should be aware of something.”). In any event, “mere ‘knowledge and acquiescence' to unconstitutional conduct, or mere failure to act on a complaint, without more, fails to state a claim under Section 1983.” Id. (quoting Iqbal, 556 U.S. at 677). Furthermore, Plaintiff's conclusory allegations that “Defendants” ignored or covered up the conditions at VCBC are insufficient to state a claim against any of the Individual Defendants personally. See Id. (“dismissal is typically warranted where a plaintiff ‘fails to make any factual allegations' against individually named defendants, and instead ‘only generally alleges' violations by staff or employees.”); see also Gibson v. State of New York et al., No. 21-CV-04251 (GHW), 2021 WL 4267683 (S.D.N.Y. Sept. 20, 2021) (dismissing § 1983 claims against DOC supervisors alleging deliberate indifference to serious risk of contracting COVID-19 when complaint lacked facts about how supervisory officials were personally involved in alleged violations); Rose v. City of New York Dep't of Correction, No. 21-CV-03164 (AT), 2021 WL 3271830, at *2 (S.D.N.Y. July 30, 2021) (dismissing § 1983 claim alleging failure to protect plaintiff from contracting COVID-19 at VCBC when plaintiff did not allege any facts showing how officer “was personally involved in the events underlying his claims”).
Finally, to the extent that Plaintiff purports to assert a claim against Brann and Egan in their official capacities, I recommend that those claims be dismissed because they are duplicative of Plaintiff's claims against the City. See Davis v. Stratton, 360 Fed.Appx. 182, 183 (2d Cir. 2010) (“In a suit against a public entity, naming officials of the public entity in their official capacities adds nothing to the suit.”) (internal quotation marks and alterations omitted); see also Phillips v. Cnty. of Orange, 894 F.Supp.2d 345, 385 at n.35 (S.D.N.Y. 2012) (“Within the Second Circuit, where a plaintiff names both the municipal entity and an official in his or her official capacity, district courts have consistently dismissed the official capacity claims as redundant.”). I further recommend that any claim against Yang in her official capacity be dismissed because the SAC contains no allegations regarding any policy or custom by Yang's employer, NYC Heath + Hospitals Corp., as a basis for the alleged constitutional deprivations. See Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978) (municipality liable under § 1983 only if alleged deprivation occurs by reason of “policy or custom”).
Any claims against Yang in her official capacity are treated as claims against HHC itself. See Caminero v. Rand, 882 F.Supp. 1319, 1322 (S.D.N.Y. 1995). HHC “is a municipal corporation subject to the principles of municipal liability set forth in Monell.” Id. (citing Rookard v. Health and Hospitals Corp., 710 F.2d 41, 45 (2d Cir. 1983)).
III. Punitive Damages
Among other relief, Plaintiff seeks punitive damages. (SAC at 6.) Defendants argue, and the Court agrees, that punitive damages are not available for claims asserted against the City or the Individual Defendants in their official capacities. See New Windsor Volunteer Ambulance Corps, Inc. v. Meyers, 442 F.3d 101, 122 (2d Cir. 2006) (“[A] municipality . . . is immune from a claim for punitive damages[.]”); see also Smith v. City of New York, No. 14-CV-00443 (LTS) (KNF), 2015 WL 1433321, at *9 (S.D.N.Y. Mar. 30, 2015) (dismissing plaintiff's claim for punitive damages against City in § 1983 lawsuit).
IV. Leave To Amend
In this Circuit, “[i]t is the usual practice upon granting a motion to dismiss to allow leave to replead.” Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991). Indeed, the Second Circuit has cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). However, leave to amend need not be granted if it would be futile. See Medina v. Tremor Video, Inc., 640 Fed.Appx. 45, 47 (2d Cir. 2016). Because Plaintiff conceivably may be able to allege additional facts to state a valid claim against the Individual Defendants in their personal capacities and against Yang in her official capacity, I recommend that the Court grant leave to amend with respect to those claims. However, because Plaintiff's claims against Brann and Egan in their official capacities are redundant of his claims against the City, I recommend that leave to amend those claims be denied.
CONCLUSION
For these reasons, I respectfully recommend that Defendants' partial motion to dismiss be GRANTED and that Plaintiff be given leave to amend, as set forth herein. The Clerk of Court is respectfully requested to mail a copy of this Report and Recommendation to the pro se Plaintiff.
SO ORDERED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Chief Judge Swain.
THE FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).