Opinion
19 Civ. 8405 (GBD) (GWG)
11-16-2021
JERMAINE GORDON, Plaintiff, v. C.O. MR. DRUMMOND, et al., Defendants.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN UNITED STATES MAGISTRATE JUDGE
Plaintiff Jermaine Gordon brings this action against Correctional Officer Oral Drummond (“C.O. Drummond”), Correctional Officer Latoya Jackson (“C.O. Jackson”), and the City of New York pursuant to 42 U.S.C. § 1983 to recover damages in connection with defendants' alleged failure to protect Gordon from an assault by other inmates during his pretrial incarceration at Rikers Island. Defendants have moved for summary judgment on all claims.For the reasons stated below, defendants' motion should be denied in part and granted in part.
Defendants' Notice of Motion for Summary Judgment, filed June 18, 2021 (Docket # 52) (“Def. Mot.”); Declaration of Andrew Spears in Support, filed June 18, 2021 (Docket # 53) (“Spears Decl.”); Spears Decl., Exhibit A, filed June 18, 2021 (Docket # 53-1) (“Comp.”); Spears Decl., Exhibit B, filed June 18, 2021 (Docket # 53-2) (“Gordon Tr. 1”); Spears Decl., Exhibit C, filed June 18, 2021 (Docket # 53-3) (“Drummond Tr. 1”); Spears Decl., Exhibit D, filed June 18, 2021 (Docket # 53-4) (“Jackson Tr. 1”); Spears Decl., Exhibit E, filed June 18, 2021 (Docket 53-5) (“Calvert Aff.”); Memorandum of Law in Support, filed June 18, 2021 (Docket # 54) (“Def. Mem.”); Defendants' Statement of Material Facts Pursuant to Local Rule 56.1, filed June 18, 2021 (Docket # 55) (“Def. 56.1 Statement”); Memorandum of Law in Opposition, filed Aug. 2, 2021 (Docket # 57) (“Pl. Mem.”); Declaration of Sameer Nath in Opposition, filed Aug. 2, 2021 (Docket # 58) (“Nath Decl.”); Nath Decl., Exhibit 1, filed Aug. 2, 2021 (Docket # 58-1) (“Gordon Tr. 2”); Nath Decl., Exhibit 2, filed Aug. 2, 2021 (Docket # 58-2) (“Drummond Tr. 2”); Nath Decl., Exhibit 3, filed Aug. 2, 2021 (Docket # 58-3) (“Jackson Tr. 2”); Plaintiff's Response to Defendants' Statement of Undisputed Facts Pursuant to Rule 56.1, filed Aug. 2, 2021 (Docket # 59) (“Pl. 56.1 Statement”); Defendants' Reply Memorandum of Law, filed Aug. 26, 2021 (Docket # 60) (“Def. Reply”); Declaration of Andrew B. Spears in Further Support, filed Aug. 26, 2021 (Docket # 61) (“Spears Reply Decl.”); Spears Reply Decl., Exhibit A, filed Aug. 26, 2021 (Docket # 61-1) (“Gordon Tr. 3”); Spears Reply Decl., Exhibit B, filed Aug. 26, 2021 (Docket # 61-2) (“Protective Custody Form”).
I. BACKGROUND
Unless otherwise stated, the following facts are either undisputed or taken in the light most favorable to Gordon, the non-moving party.
A. Facts
On August 19, 2017, Gordon was assaulted by a group of inmates while incarcerated as a pretrial detainee at the New York City Department of Correction's (“DOC”) Anna M. Kross Center on Rikers Island. See Gordon Tr. 1 21:9-21, 34:1-25, 35:1-19, 56:2-25, 57:1-9, 68:10-11; Drummond Tr. 1 41:22-25. At the time, Gordon was awaiting trial on a child molestation charge. See Gordon Tr. 1 68:7-13.
At approximately 8:00 p.m., Gordon returned from a shower to his assigned housing area, West 17B Lower, a “dorm” housing facility where approximately 80 inmates sleep in an open area on single beds placed two feet apart, supervised by two correctional officers. See Gordon Tr. 1 21:18-25, 22:1-25, 66:1-4. On the night of the assault, C.O. Drummond was assigned to West 17B Lower and C.O. Jackson was assigned to nearby West 17A Lower. See Drummond Tr. 1 32:16-21; Jackson Tr. 111:3-6.
Gordon testified that, after returning to West 17B Lower, he spoke with another inmate, “Bilal” (sometimes incorrectly spelled as “Balla”), who told Gordon that he overheard C.O. Jackson informing a group of inmates of Gordon's homosexuality and child molestation charges, and C.O. Drummond giving them permission to assault a homosexual inmate in West 17B Lower. See Gordon Tr. 1 57:10-23, 66:1-4, 67:1-22, 74:18-25, 75:1-7; Gordon Tr. 2 43:13-16, 44:4-8; Gordon Tr. 3 26:4-11, 27:1-25, 28:1-25, 45:4-22. Defendants object to the admission of Bilal's statement as hearsay. See Def. Reply at 2-3. Although any statements by C.O. Drummond and C.O. Jackson may qualify as statements of a party opponent, see Fed.R.Evid. 801(d)(2)(A), Bilal's statement to Gordon constitutes hearsay within hearsay, see Fed.R.Evid. 805, and therefore is inadmissible unless it also falls within an exclusion from or an exception to the rule against hearsay, see id.; Fed.R.Evid. 802, which it does not. Accordingly, we do not consider Bilal's statements to the extent they are offered to prove the truth of C.O. Drummond and C.O. Jackson's alleged statements. See Fed.R.Evid. 801(c)(2).
At around 10:55 p.m., Gordon was lying on his bed when a “gang of [B]loods” approached. See Gordon Tr. 1 33:13-20, 69:2-12. The group's leader, “SP, ” approached Gordon from the left. See Gordon Tr. 1 33:13-20, 35:8-17, 66:6-9, 69:2-12. Gordon continued reading a book, pretending not to notice. See Gordon Tr. 1 33:20-25. Gordon stood up, put the book down, and attempted to put his shoes on. See Gordon Tr. 1 34:3-5. Before he could do so, SP struck Gordon on the side of his head. See Gordon Tr. 1 34:5-6. A second inmate, “Chestnut, ” hit Gordon next. See Gordon Tr. 1 35:8-19. Gordon tried to flee, but a group of inmates stopped him. See Gordon Tr. 1 34:7-17, 35:1-19. The inmates proceeded to punch, kick, and stomp on Gordon. See Gordon Tr. 1 35:1-4. They threw a “hot substance” on him. See Gordon Tr. 1 35:5. Gordon tried to protect himself but briefly lost consciousness. See Gordon Tr. 1 56:9-17. Eventually, Gordon regained consciousness and ran off towards the door, “bleeding and wet.” See Gordon Tr. 1 56:18-24. C.O. Drummond was not at his post when the assault occurred but instead was in a location called “the bubble, ” which is an area between West 17B Lower and West 17A Lower. See Gordon Tr. 1 34:17-25; Drummond Tr. 1 41:22-25, 42:3-6; Def. 56.1 Statement ¶ 9; Pl. 56.1 Statement ¶ 9. According to C.O. Drummond, he was there because he was going to the bathroom. See Drummond Tr. 1 42:3-6. When C.O. Drummond returned, Gordon was already at the door, demanding that C.O. Drummond and C.O. Jackson let him out of West 17B Lower and into the bubble. See Gordon Tr. 1 56:22-25, 57:1-2; Drummond Tr. 1 46:2-11. At this point, the assault had already finished. See Gordon Tr. 1 56:18-25, 57:1-9. According to Gordon, neither officer immediately let him into the bubble. See Gordon Tr. 1 57:2-3. In the period after Gordon asked to be let in, the attackers assaulted Bilal and, after Bilal ran to the door, Gordon and Bilal were let out of the unit and into the bubble. See Gordon Tr. 1 57:4-9.
Once Gordon was in the bubble, C.O. Drummond told Gordon that he did not know Gordon would be assaulted. See Gordon Tr. 1 74:2-25, 75:1. Gordon believed him. See Gordon Tr. 2 91:17-20. However, according to Gordon, C.O. Drummond did say that he knew a homosexual inmate would be attacked. See Gordon Tr. 1 74:9-13; 75:2-4 (C.O. Drummond said “[h]e knew an inmate was supposed to be assaulted” and told Gordon the “intended target” was to be a “gay person”). C.O. Drummond told Gordon that he thought the target was someone other than Gordon because, as recounted by Gordon, C.O. Drummond “was not expecting a Jamaican person because in Jamaica we don't mess with gay people and Jamaican m[e]n are not supposed to be gay.” Gordon Tr. 1 75:4-7. Although C.O. Drummond knew that homosexual inmates and inmates facing sexual abuse charges are at higher risk of being assaulted in jail, see Drummond Tr. 2 19:5-25, C.O. Drummond had no knowledge of Gordon's homosexuality or pending child molestation charge prior to the assault. See Gordon Tr. 1 75:2-9; Drummond Tr. 1 30:3-16. No. further conversation occurred between Gordon and the two officers. See Gordon Tr. 1 76:5-11; Gordon Tr. 2 81:4-10. Eventually, a “probe team” arrived and escorted Gordon out of the area. See Gordon Tr. 2 84:14-19.
Prior to the attack, Gordon did not inform or request help from anyone at DOC. See Gordon Tr. 1 67:1-25, 68:1-25, 69:1. The parties dispute whether Gordon filed a grievance with DOC regarding the incident afterwards. See Def. Mem. at 4-6; Pl. Mem. at 4-7; Def. Reply at 4-6.
B. Procedural History
On September 10, 2019, Gordon filed suit against C.O. Drummond, C.O. Jackson, and DOC, asserting claims under 42 U.S.C. § 1983. See Comp. at 1, 2. On November 15, 2019, the City of New York was substituted as a defendant in place of DOC. See Order of November 15, 2019 (Docket # 8), at 1-2. After a period of discovery, the three defendants filed the instant motion for summary judgment dismissing Gordon's claims on their merits and for failure to comply with the Prison Litigation Reform Act's (“PLRA”) administrative exhaustion requirement. See Def. Mem. at 1. Additionally, C.O. Drummond and C.O. Jackson seek dismissal on qualified immunity grounds. See id.
Although the complaint also refers to “negligence” and “discrimination, ” Comp. at 2, defendants characterize Gordon's complaint as raising only § 1983 failure to protect claims because any negligence or discrimination claims would fail for various reasons. See Def. Mem. at 3 n.3. Gordon - who is now represented by counsel - has not opposed this characterization of the complaint or otherwise made arguments that his case consists of anything other than his claims under 42 U.S.C. § 1983. We thus accept that Gordon may proceed only under § 1983.
The City of New York asserted in its memorandum of law that it was entitled to summary judgment “because plaintiff has not asserted any claim whatsoever against the City.” Id. Gordon provided no evidence supporting any claim against the City and did not even address any such claim. See Pl. Mem. at 1-12. Thus, any claim against the City must be dismissed.
II. LEGAL STANDARD
Rule 56(a) of the Federal Rules of Civil Procedure provides that a court shall grant summary judgment when “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). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, “[t]he evidence of the non-movant is to be believed” and the court must draw “all justifiable inferences” in favor of the nonmoving party. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)); accord Morales v. Quintel Ent., Inc., 249 F.3d 115, 121 (2d Cir. 2001) (“[A]ll reasonable inferences must be drawn against the party whose motion is under consideration.”).
Once the moving party has shown that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law, “the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial, ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis in original) (internal quotation omitted), and “may not rely on conclusory allegations or unsubstantiated speculation, ” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (citing cases). See Fed.R.Civ.P. 56(c), (e). In other words, the nonmovant must offer “concrete evidence from which a reasonable juror could return a verdict in his favor.” Anderson, 477 U.S. at 256. Where “the nonmoving party bears the burden of proof at trial, summary judgment is warranted if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to its case.” Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (punctuation and quotation omitted). Thus, “[a] defendant moving for summary judgment must prevail if the plaintiff fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case.” Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson, 477 U.S. at 247-48); accord El-Nahal v. Yassky, 835 F.3d 248, 252, 256 (2d Cir. 2016). III. DISCUSSION
A. Prison Litigation Reform Act
First, defendants seek summary judgment on the basis that Gordon failed to satisfy the PLRA's administrative exhaustion requirement. See Def. Mem. at 4.
1. The PLRA
The PLRA provides that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983] . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA requires “[p]roper exhaustion.” meaning that an inmate must “compl[y] with an agency's deadlines and other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90 (2006). The prisoner must use “all steps that the agency holds out, and [must] do[] so properly.” Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (internal quotation marks omitted). Thus, “[c]omplete exhaustion of . . . administrative remedies through the highest level for each claim is required.” Bennett v. James, 737 F.Supp.2d 219, 224 (S.D.N.Y. 2010) (quoting Veloz v. New York, 339 F.Supp.2d 505, 514 (S.D.N.Y. 2004), aff'd, 178 Fed.Appx. 39 (2d Cir. 2006)) (alteration in original) (internal quotation marks omitted). If a plaintiff fails to exhaust a claim, that claim must be dismissed. See Amador, 655 F.3d at 96 (citations omitted).
Failure to exhaust is an affirmative defense. Grullon v. City of New Haven, 720 F.3d 133, 141 (2d Cir. 2013); accord Jones v. Bock, 549 U.S. 199, 216 (2007). Thus, the defendants have the burden of proving that Gordon's claims were not exhausted. See Hubbs v. Suffolk Cnty. Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015) (“Because failure to exhaust is an affirmative defense, defendants bear the initial burden of establishing, by pointing to legally sufficient sources such as statutes, regulations, or grievance procedures, that a grievance process exists and applies to the underlying dispute.” (internal quotation marks, alterations, and citations omitted)).
If this showing is made, the plaintiff may nevertheless defeat summary judgment by showing that the purportedly applicable procedure was in fact unavailable to him. See Ross v. Blake, 578 U.S. 632, 642 (2016). “An administrative procedure is ‘unavailable' when (1) ‘it operates as a simple dead end - with officers unable or consistently unwilling to provide any relief to aggrieved inmates;' (2) the scheme is ‘so opaque that it becomes, practically speaking, incapable of use,' meaning that ‘some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it;' or (3) ‘when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.'” Hayes v. Dahlke, 976 F.3d 259, 268 (2d Cir. 2020) (quoting Ross, 578 U.S. at 643-44). Plaintiff bears the burden of demonstrating that the exhaustion process was unavailable. See, e.g., Henrius v. County of Nassau, 2019 WL 1333261, at *5 (E.D.N.Y. Mar. 22, 2019); accord White v. Velie, 709 Fed.Appx. 35, 38 (2d Cir. 2017) (summary order).
2. Applicability of the Inmate Grievance and Request Program
Gordon's assault occurred while he was incarcerated at Rikers Island. See Gordon Tr. 119:16-18. Thus, any grievance Gordon was required to file would have proceeded under the New York City Department of Correction's Inmate Grievance and Request Program. See Pizarro v. Ponte, 2019 WL 568875, at *4 (S.D.N.Y. Feb. 11, 2019) (citing Sanders v. City of New York, 2018 WL 3117508, at *4 (S.D.N.Y. June 25, 2018); Girodes v. City of New York, 2018 WL 3597519, at *3 (S.D.N.Y. July 26, 2018)). The IGRP requires an inmate to:
Strangely, the City has not put into the record the text of the IGRP in effect at the time of the incident. Accordingly, we will take judicial notice of its current contents. Sanders, 2018 WL 3117508, at *4 n.1 (“It is a common practice in this District to take judicial notice of the version of the IGRP in effect at the time of the events giving rise to [a prisoner's] claim.”) (internal quotation omitted) (alteration in original). The current procedure appears at: https://www.nyc.gov/html/doc/downloads/pdf/Directive3376InmateGrievanceRequestProg ram.pdf (“IGRP”). There is no suggestion from the parties that the IGRP differed in any material respect as of the date of the incident.
(1) file an informal complaint with the Inmate Grievance Resolution Committee (“IGRC”); (2) in the event that informal resolution is not reached within five days, request a formal hearing before the IGRC; (3) appeal any unfavorable decision by the IGRC to the Commanding Officer; (4) appeal any unfavorable decision by the Commanding Officer to the Central Office Review Committee; and (5) appeal any unfavorable decision from the Central Office Review Committee to the New York City Board of Correction.Girodes, 2018 WL 3597519, at *3 (quoting Myers v. City of New York, 2012 WL 3776707, at *4 (S.D.N.Y. Aug. 29, 2012)).
While “[i]nmate allegations of physical or sexual assault or harassment by either staff or inmates are not subject to the IGRP process.” IGRP at 5, here, the claims against the defendants do not involve an allegation of assault or harassment by the defendants but rather a failure by the defendants to protect the plaintiff from an assault. Thus, we conclude that the IGRP requires inmates to grieve failure-to-protect claims, as courts in this Circuit have repeatedly assumed. See Jhagroo v. Carty, 2019 WL 1922287, at *1 (E.D.N.Y. Apr. 29, 2019); Wilson v. Keane, 2003 WL 22132865, at *1 (S.D.N.Y. Sept. 16, 2003). The case of Taylor v. Swift, 21 F.Supp.3d 237, 241-44 (E.D.N.Y. 2014), is not to the contrary because it involved a different version of the IGRP, which made any “criminal misconduct” non-grievable and Swift found the failure to protect in that case to be a potential violation of federal criminal law. 21 F.Supp.3d at 242-43.
Swift concluded in the alternative that even if the IGRP applied, plaintiff's failure to exhaust was excused because it resulted from “a ‘reasonable [though mistaken] interpretation of [DOC] regulations, '” which fell within the “special circumstances exception” to PLRA exhaustion articulated in Hemphill, 380 F.3d at 689. See 21 F.Supp.3d at 243. However, the “special circumstances” exception for excusing compliance with the IGRP is inapplicable after the Supreme Court's invalidation of that exception in Ross, 578 U.S. at 648 (“Courts may not engraft an unwritten ‘special circumstances' exception onto the PLRA's exhaustion requirement.”). Thus, on this point, we respectfully decline to follow Swift or the cases that have relied on Swift. See, e.g., House v. City of New York, 2020 WL 6891830, at *8-9 (S.D.N.Y. Nov. 24, 2020); Alicea v. City of New York, 2020 WL 1528478, at *3 (S.D.N.Y. Mar. 31, 2020); Taylor v. City of New York, 2018 WL 1737626, at *4 (S.D.N.Y. Mar. 27, 2018).
We next turn to the question of whether Gordon (1) complied with the IRGP; or (2) is excused from compliance.
3. Gordon's Compliance with the IGRP
Gordon claims he initially wrote and submitted a grievance on August 20, 2017, but was told by a DOC officer, Captain Williams, that he would not be transferred into protective custody until the grievance was edited to remove references to DOC staff misconduct, which Gordon then did. See Gordon Tr. 2 83:7-25, 84:1-2. Once transferred, Gordon states that he wrote “the proper grievance that I wrote from day one, ” and “put it in.” Gordon Tr. 2 83:25, 84:1-11. Gordon made a copy and sent it to his attorney. Id. Gordon is aware of the “multi[-]step” grievance process and “completed all the protocols” but “no one responded.” Gordon Tr. 2 92:4-25.
Defendants have submitted an affidavit from Yanique Calvert, a DOC Operations Administrator, stating that a search of DOC records did not uncover documentation of Gordon's grievance. See Calvert Aff. Defendants also claim that the only relevant document in Gordon's inmate file is not a grievance, but rather a request for placement in protective custody, which Captain Williams approved on August 20, 2017. See Def. Reply at 6-7; Protective Custody Form.
In light of this conflicting evidence, there is a genuine issue of material fact as to whether Gordon's exhaustion was proper. Viewing the facts in the light most favorable to Gordon, a reasonable factfinder could conclude that Gordon in fact completed a proper initial grievance on two occasions: once when he presented it to Captain Williams (before he was forced to change it) and again after he was transferred. See Gordon Tr. 2 83:11-25, 84:1-2. Gordon also testified that he completed all the remaining steps of the IGRP process. See Gordon Tr. 2 92:4-25. This is not a case where Gordon's testimony is necessarily unbelievable. See, e.g., Jeffreys v. City of New York, 426 F.3d 549, 554-55 (2d Cir. 2005) (no “genuine” issue of material fact existed when non-movant's deposition testimony was the sole basis for opposing summary judgment and was unsupported by the record, contradictory, and inconsistencies were not susceptible to any reasonable explanation). Although defendants have submitted an affidavit regarding their own records of Gordon's grievances, the affidavit is highly conclusory. It does not describe how the records are kept or the nature of the search that was done for the records. There is also no information on record retention policies. See Calvert Aff. Indeed, Thomas v. New York State Department of Correctional Services, 2002 WL 31164546, at *3 (S.D.N.Y. Sept. 30, 2002), denied summary judgment in the face of a similarly conclusory affidavit.
Citing D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998), defendants insist that Gordon cannot prevail based on his own testimony but must instead produce what defendants refer to as “objective evidence” that he exhausted. See Def. Reply at 4-5. But D'Amico stands merely for the familiar proposition that “[t]he 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.” Id. Sworn deposition testimony based on personal knowledge that is not “facially implausible, ” Fincher v. Depository Trust and Cleaning Corp., 604 F.3d 712, 726 (2d Cir. 2010), qualifies as the “hard evidence” that D'Amico requires to survive summary judgment.
Defendants use the fact that they located a copy of Gordon's request to be placed in protective custody to argue that Gordon's “deposition testimony is contradicted by objective evidence in the factual record.” Def. Reply at 6 (citing Protective Custody Form). They argue that this form, as well as Gordon's inmate file (which was not included in their submissions) “indicates that Captain Williams did not reject [Gordon's] grievance, but that [Gordon] instead requested to be placed in protective custody.” Id. But this evidence is in fact consistent with Gordon's testimony that he was required to alter his initial grievance in order to be placed in protective custody. See Gordon Tr. 2 83:11-25, 84:1-2.
In sum, a genuine issue of material fact exists with respect to Gordon's compliance with the IGRP process. Although Gordon is not entitled to a jury trial on this issue, he is entitled to a nonjury “evidentiary hearing to address the material issues of fact that are preventing resolution of the exhaustion defense as a matter of law.” Zulu v. Barnhart, 2018 WL 4347798, at *4 (N.D.N.Y. Sept. 12, 2018); accord Messa v. Goord, 652 F.3d 305, 309-10 (2d Cir. 2011) (no constitutional right to jury trial on factual disputes about PLRA exhaustion). Because PLRA exhaustion is an affirmative defense, defendants will bear the burden of establishing Gordon's failure to exhaust at the evidentiary hearing. See Hubbs, 788 F.3d at 59.
While Gordon suggests that any remedies were “unavailable” due to Williams' initial refusal of the grievance, see Pl. Mem. at 5-6, Gordon has not met his burden on this issue given that he conceded that he was able to pursue the grievance process once he was transferred. See Gordon Tr. 2 83:25, 84:1-11, 92:4-25.
B. Failure to Protect Claim
Defendants seek dismissal of Gordon's failure to protect claims on the merits. To establish 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. Hous. Welfare Rights Org., 441 U.S. 600, 617-18 (1979).
“The Eighth Amendment prohibits the infliction of ‘[c]ruel and unusual punishments' on those convicted of crimes.” Morgan v. Dzurenda, 956 F.3d 84, 88 (2d Cir. 2020); accord U.S. Const. amend. VIII. The Supreme Court is clear that “[b]eing violently assaulted in prison” is an unconstitutional punishment, and prison officials are therefore obligated “‘to protect prisoners from violence at the hands of other prisoners.'” Farmer v. Brennan, 511 U.S. 825, 833-34 (1994) (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988); Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). For pretrial detainees like Gordon, however, the Fourteenth Amendment prohibits the imposition of any punishment whatsoever “prior to an adjudication of guilt.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). Accordingly, “[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.” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (citations omitted).
Under the Fourteenth Amendment, “[a] pretrial detainee may establish a § 1983 claim for allegedly unconstitutional conditions of confinement by showing that the officers acted with deliberate indifference to the challenged conditions.” Id. To prevail on his failure to protect claim, Gordon must satisfy a two-prong standard. See id.; Scott v. Westchester County, 434 F.Supp.3d 188, 198 (S.D.N.Y. 2020). First, Gordon “must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 833; Scott, 434 F.Supp.3d at 198. Those conditions must be “sufficiently serious to constitute objective deprivations of the right to due process.” Darnell, 849 F.3d at 29. Second, Gordon must establish that defendants acted with “deliberate indifference.” Darnell, 849 F.3d at 29. Although the Eighth Amendment requires actual knowledge to satisfy this “mens rea prong, ” Darnell, 849 F.3d at 29, 32, a pretrial detainee need only show that a defendant “should have known” of “an excessive risk to inmate health or safety.” Id. at 32-35 (“Unlike a violation of the Cruel and Unusual Punishments Clause, an official can violate the Due Process Clause of the Fourteenth Amendment without meting out any punishment, which means that the Due Process Clause can be violated when an official does not have subjective awareness that the official's acts (or omissions) have subjected the pretrial detainee to a substantial risk of harm.”).
1. Sufficiently Serious Conditions
When an “inmate [is] the victim of an undisputedly unprovoked attack.” “sufficiently severe injuries may constitute per se showings of a sufficiently serious condition of confinement.” House v. City of New York, 2020 WL 6891830, at *13 (S.D.N.Y. Nov. 24, 2020) (citing Knowles v. New York City Dep't of Corr., 904 F.Supp. 217, 221 (S.D.N.Y. 1995); Warren v. Goord, 579 F.Supp.2d 488, 491, 494 (S.D.N.Y. 2008); Perez v. Ponte, 236 F.Supp.3d 590, 600, 625-26 (E.D.N.Y. 2017), report and recommendation adopted, 2017 WL 1050109 (E.D.N.Y. Mar. 15, 2017)). Here, a gang of “Bloods” punched, kicked, and stomped on Gordon. See Gordon Tr. 1 34:5-6, 35:1-19, 56:6-15, 69:2-15. They threw a “hot substance” on him. See Gordon Tr. 1 35:5. They knocked him unconscious and left him bleeding. See Gordon Tr. 1 56:9-24. Gordon's injuries required medical attention. See Gordon Tr. 1 99:16-25. Moreover, defendants do not argue, and the record does not suggest, that Gordon did anything to provoke the attack. See Def. Mem. at 7-10; Def. Reply at 6-10. Based on the above, a reasonable jury could conclude that Gordon faced a “substantial risk of serious harm.” Farmer, 511 U.S. at 834.
Defendants argue that Gordon did not face “a sufficiently serious condition” because there were no prior hostilities between Gordon and his attackers, whom Gordon admitted he was previously “friendly with”; because Gordon did not report any concerns about a possible assault to anyone at DOC; and because “neither defendant had any reason to believe that plaintiff was going to be assaulted.” Def. Mem. at 8-10. However, a substantial risk of serious harm can exist without prior animosity, altercations, or notification. See, e.g., House, 2020 WL 6891830, at *11 (citation omitted) (“A previous altercation may support the factual finding of a substantial risk of serious harm, but there is no requirement of a prior altercation.”); Luckey v. Jonas, 2019 WL 4194297, at *1, *4 (S.D.N.Y. Sept. 4, 2019) (lack of warning that “surprise attack” was impending did not preclude finding of substantial risk of serious harm because plaintiff “was on the floor being ‘assaulted' for an hour and a half while the Defendants ‘did nothing to stop' the attack”); Blake v. Kelly, 2014 WL 4230889, at *5 (S.D.N.Y. Aug. 26, 2014) (plaintiff assaulted by another detainee for refusing to give up his seat in overcrowded, unmonitored holding cell sufficiently established a “factual question as to whether” overcrowding created a “substantial risk of serious harm”); Knowles, 904 F.Supp. at 221 (despite lack of warning or animosity between plaintiff and attackers, prong one satisfied when plaintiff's “face [was] suddenly and unexpectedly slashed by with a sharp instrument possessed by a fellow inmate”).
Furthermore, Gordon has explained why he did not report his fears that he was going to attacked. Gordon believed an attack was impending because Bilal told him C.O. Drummond and C.O. Jackson had acquiesced to it. Gordon did not report it because, as he put it, he is “not a stupid person, ” Gordon Tr. 1 67:11-22, suggesting he believed he would not get help from the officers that he thought had approved the attack. Under these circumstances, Gordon's failure to report, viewed by itself or in conjunction with the lack of prior animosity between Gordon and his assailants, does not preclude a reasonable jury from concluding that he nevertheless faced a “substantial risk of serious harm.” Farmer, 511 U.S. at 834.
We consider this statement only for the non-hearsay purpose of explaining Gordon's belief and reaction. See United States v. Dupree, 706 F.3d 131, 136 (2d Cir. 2013) (“[A] statement offered to show its effect on the listener is not hearsay.”); id. at 137 (“We have repeatedly held that a statement is not hearsay where, as here, it is offered, not for its truth, but to show that a listener was put on notice.”).
We also note that the factual underpinning of defendants' argument- that “neither [officer] had any reason to believe that plaintiff was going to be assaulted.” Def. Mem. at 10 - is contradicted by Gordon's testimony. According to Gordon, C.O. Drummond admitted that he knew a homosexual inmate would be assaulted. See Gordon Tr. 1 74:12-25, 75:1-7. The fact that C.O. Drummond did not know that the victim would be Gordon specifically does not diminish the risk that Gordon, as a homosexual, faced, nor does it preclude us from considering any elevation of that risk created by the absence of any response to it. See generally Molina v. County of Westchester, 2017 WL 1609021, at *3 (S.D.N.Y. Apr. 28, 2017) (“The failure of a correction officer to oversee prisoners, intervene in an attack, or otherwise fail to abide by prison safety protocols may under certain circumstances create a condition which poses a substantial risk of serious harm . . . .”) (citations omitted); id. at *1, *3 (first prong satisfied when correctional officer was absent from post and unable to see, hear, or promptly react to inmate spontaneously attacking plaintiff).
Given the above, we conclude that the planned, unprovoked assault in this case plainly constituted a condition posing a substantial risk of serious harm.
2. Mens Rea
To prevail on the second prong, a pretrial detainee must demonstrate that the defendant “acted intentionally . . . 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.” Darnell, 849 F.3d at 35. However, “[a] detainee must prove that [the] official acted intentionally or recklessly, and not merely negligently.” Darnell, 849 F.3d at 36; see also Kingsley v. Hendrickson, 576 U.S. 389, 396 (2015) (“[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.” (internal quotation omitted)).
According to defendants, the two officers were neither aware Gordon would be assaulted nor present “on the housing area floor” during the attack. Def. Mem. at 12. Thus, defendants argue that neither officer “should have known” of the risk of harm Gordon faced and, in making no effort to prevent or intervene during the assault, see id. at 11-12; Darnell, 849 F.3d at 35, neither officer “recklessly failed to act with reasonable care to mitigate th[at] risk, ” Darnell, 849 F.3d at 35. We address each officer's culpability in turn.
a. C.O. Drummond
As noted, Gordon's testimony is that C.O. Drummond himself admitted to Gordon that he knew a homosexual inmate would be assaulted. See Gordon Tr. 1 74:12-25, 75:1-7. Notwithstanding defendants' arguments to the contrary, the law does not require correctional officers who know of a particular risk to “guess beforehand precisely who would attack whom.” Farmer, 551 U.S. at 844. Cf. Rodriguez v. Sec'y for Dep't of Corr., 508 F.3d 611, 619 (11th Cir. 2011) (guard with notice of threat to specific inmate could not obtain summary judgment merely because he did not know who specifically posed the threat). Thus, if a correctional officer knows that a specific person or group intends to assault a homosexual inmate, the officer is not absolved from responsibly simply because he cannot identify the target. Instead, the officer must take reasonable steps in response to the substantial risk posed. See Darnell, 849 F.3d at 35. Once Drummond knew that the Bloods would assault a homosexual inmate, Drummond had to take reasonable action to prevent that attack - even if it only meant reporting the possibility to a superior who could make efforts to remove the gang members, offering inmates the opportunity to identify themselves as vulnerable to this specific attack, or seeking coverage during his bathroom break. See Farmer, 551 U.S. at 844 (“[P]rison officials . . . may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.”).
Here, C.O. Drummond was aware of a substantial risk that a homosexual inmate in 17B Lower would be violently attacked. That C.O. Drummond did not have reason believe the threat was empty is supported by his own testimony that he was aware that homosexual inmates and inmates facing sexual misconduct charges are more likely to be assaulted in prison. See Drummond Tr. 2 19:5-25. Thus, the risk that an inmate would soon be harmed was well-grounded in C.O. Drummond's training and experience.
A reasonable jury could find that C.O. Drummond should have known that doing nothing - and especially leaving 17B Lower without any guards - would increase the risk to the attackers' victim. Notably, defendants do not explain why C.O. Drummond was unable to ask someone to take his place before he left his assigned post as the only guard in 17B Lower.
Of course, we reject C.O. Drummond's argument that he cannot be liable because “plaintiff must necessarily demonstrate that the individual defendant was present during the incident, and could have intervened to stop it.” Def. Mem. at 11. In the cases cited to support this argument, see id. at 11-12 (citing Brown v. City of New York, 2017 WL 1390678, at *11 (S.D.N.Y. Apr. 17, 2017); Grant v. Burroughs, 2000 WL 1277592, at *3 (S.D.N.Y. Sept. 8, 2000)), the defendants had no notice of a specific attack. Here, C.O. Drummond knew an attack was impending. See Gordon Tr. 1 74:12-25, 75:1-7. He also knew he was the only guard in West 17B Lower's housing area. See Gordon Tr. 1 22:22-24; Drummond Tr. 2 32:16-21. Still, he took no action to mitigate the threat, and even removed himself from a position to intervene were the assault to occur. See Drummond Tr. 1 42:3-6. A reasonable jury could decide that this conduct met the recklessness threshold and thus that Drummond acted in violation of the Fourteenth Amendment.
b. C.O. Jackson
C.O. Jackson seeks summary judgment on the basis that she had no reason to know Gordon would be attacked, and thus, the failure to protect claim cannot proceed as to her. See Def. Mem. at 11-12. Again, defendants emphasize Gordon's failure to report the attack in advance and the lack of prior animosity between Gordon and his attackers. See id.
Correctional officers are generally not liable for a “surprise attack.” Fernandez, 2010 WL 1222017, at *4 (citations omitted). Here, there is no admissible evidence that C.O. Jackson had, or should have had, any prior knowledge of the planned attack, which lasted several minutes at most. See Gordon Tr. 1 61:1-8.
Gordon argues that C.O. Jackson knew or should have known of the impending attack because she informed the inmates of Gordon's homosexual status and of his then-pending child molestation charges, which “increased [Gordon's] risk of being assaulted by other inmates.” Pl. Mem. at 8-9. But as already explained, there is no admissible evidence supporting this contention. Gordon also argues that C.O. Jackson acted recklessly in responding to a substantial risk of serious harm when she did not promptly let Gordon into the “bubble” after Gordon banged on the door, instead “giving opportunity for the assault on [Gordon] to continue.” Pl. Mem. at 9. But Gordon's own, uncontradicted testimony reflects that by the time he banged on the door, the assault on him was over. See Gordon Tr. 1 56:18-25, 57:1-9. At that point, the attackers were assaulting Bilal. See id. Thus, at the time Gordon asked C.O. Jackson to open the “bubble” door, there was no longer a substantial risk of serious harm from which Gordon needed protection.
Accordingly, C.O. Jackson is entitled to summary judgment dismissing Gordon's § 1983 claim against her.
B. Qualified Immunity
Finally, C.O. Drummond seeks dismissal on qualified immunity grounds. See Def. Mem. at 12-14. “Qualified immunity attaches when an official's conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” White v. Pauly, 137 S.Ct. 548, 551 (2017) (per curiam) (internal quotation omitted). A court's qualified immunity analysis must address two questions. First, did the defendant violate a statutory or constitutional right? Second, was the right “clearly established” at the time of the challenged conduct? See Jones v. Treubig, 963 F.3d 214, 224 (2d Cir. 2020) (quoting Ricciuti v. Gyzenis, 834 F.3d 162, 167 (2d Cir. 2016)). Courts retain discretion to addresses these questions in whichever order they see fit. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
We have already addressed the first question in the previous section. As to question two, the Supreme Court has explained that a right is “clearly established” if “[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1978). While such rights “should not be defined at a high level of generality.” White, 137 S.Ct. at 552 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011), “the very action in question [need not have] previously been held unlawful.” Anderson, 483 U.S. at 640 (internal citation omitted). Rather, “in the light of pre-existing law[, ] the unlawfulness must [have been] apparent.” Id. This does not require “a case directly on point.” White, 137 S.Ct. at 551 (citation omitted). But it does require a precedent “clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply.” District of Columbia v. Wesby, 138 S.Ct. 577, 590 (2018). “In other words, existing law must have placed the constitutionality of the officer's conduct ‘beyond debate.'” Id. at 589 (quoting Ashcroft, 563 U.S. at 741). Only in “obvious case[s]” can the application of more “general tests” satisfy this requirement. See Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam) (citing Hope v. Pelzer, 536 U.S. 730, 738 (2002)).
Defendants who violate “clearly established” rights “may nonetheless establish immunity by showing that reasonable persons in their position would not have understood that their conduct was within the scope of the established prohibition.” In re State Police Litig., 88 F.3d 111, 123 (2d Cir. 1996) (citations omitted). However, “[a]bsent ‘extraordinary circumstances,' ‘[i]f the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.'” Vincent v. Yelich, 718 F.3d 157, 166 (2d Cir. 2013) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982)).
In August 2017, when Gordon was assaulted, it was clearly established that prison guards had a duty to protect pretrial detainees from substantial risks of serious harm of which they were or should have been aware. See Farmer, 511 U.S. at 836-38; Darnell, 849 F.3d at 32-35. And the Second Circuit in Morales v. New York State Department of Corrections, 842 F.2d 27 (2d Cir. 1988), held that a valid deliberate indifference claim exists when a correctional officer is on notice of an impending assault and does nothing to prevent or mitigate the risk that the assault will occur. See id. at 30 (permitting § 1983 claim against prison guard to proceed “in light of [plaintiff's] allegation that he complained to [the guard], only a few hours before the April 9 attack, that [another inmate] had tried to attack him the night before and would probably do so again” and the guard did nothing to address the threat).
In Morales, unlike Gordon's case, the specific target was known to the officer and the warning came from the victim himself. See id. But these differences are not material. On the former issue, Farmer makes it clear that, for liability to attach, there is no need for correctional officers to “guess beforehand precisely who would attack whom.” 551 U.S. at 844. On the latter issue, it is obviously not important who the notice comes from so much as that the notice be reliable. Indeed, the facts here are even more favorable to plaintiff because in Gordon's case we can infer, based on C.O. Drummond's post-attack statements, see Gordon Tr. 1 74:10-25, 75:1-7, that the notice came from the perpetrators themselves.
Given this state of the law, we conclude that at the time Gordon was attacked, it was clearly established that a prison guard with clear notice of an imminent and potentially serious inmate-on-inmate assault violates the Fourteenth Amendment when he takes no action in response to the risk. No. reasonable officer could have thought that such conduct did not violate the law. See In re State Police Litig., 88 F.3d at 123.
Accordingly, C.O. Drummond is not entitled to qualified immunity, and the motion for summary judgment as to him should be denied.
IV. CONCLUSION
For the foregoing reasons, defendants' motion for summary judgement (Docket # 52) should be denied as to defendant Drummond and granted as to defendants Jackson and City of New York.
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), (b), (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 Judge Daniels. 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 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).