Opinion
22-CV-04758 (JLR) (KHP)
07-10-2024
AMAURY URENA, Plaintiff, v. CITY OF NEW YORK, SEAN TURGUT, STEPHANIE PAMPHILE and TIFFANY WILLIAMS, Defendants.
HONORABLE JUDGE JENNIFER L. ROCHON, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON MOTION FOR SUMMARY JUDGMENT
KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
Pro se Plaintiff Amaury Urena brings this action under 42 U.S.C. § 1983 against Defendants the City of New York, Sean Turgut, Stephanie Pamphile and Tiffany Williams (collectively, “Defendants”) for actions that occurred while Plaintiff was a pretrial detainee.Before the Court for report and recommendation is Defendants' motion for summary judgment (the “Motion”) in which Defendants seek the dismissal of all claims and what the Court construes as Plaintiff's cross-motion for summary judgment (filed in opposition to Defendants' motion). (See ECF Nos. 79-82, 97-98, 101-02.) For the reasons that follow, I respectfully recommend that Defendants' motion be GRANTED and Plaintiff's motion be DENIED.
Plaintiff also brought claims against Warden Caputo and Warden John Doe, but on June 29, 2022, the Honorable Judge Lorna G. Schofield dismissed those defendants. (ECF No. 6.)
The following facts are undisputed except where otherwise noted.
On April 30, 2022, Plaintiff was housed in Quad Upper 10 at the Anna M. Kross Center (“AMKC”) on Rikers Island pending criminal charges for, among other things, armed robbery in the first degree. (ECF No. 81, Defendants' Statement of Material Facts (“DSMF”) at ¶ 1.) On that same date, Quad Upper 10 at AMKC was placed on lock down after several inmates were involved in a slashing. (Id. at ¶ 2.) Plaintiff received an infraction for his alleged involvement in the slashing incident. (Id. at ¶ 3.)
Plaintiff disputes that he was involved in the slashing incident but does not dispute he received an infraction.
On the night of April 30, 2022, Plaintiff was transferred to Quad Lower 12, an empty unit at AMKC, and was placed in a cell that contained a mattress, toilet, and sink. (Id. at ¶ 5.) Plaintiff received food while in Quad Lower 12 and remained there overnight until approximately 9:00 p.m. on May 1, 2022. (Id. at ¶¶ 7-8.) At some point while Plaintiff was in this cell in Quad Lower 12, he flooded his cell by clogging the toilet and flushing the toilet. (ECF No. 101, Defendants' Responses to Plaintiff's Statement of Material Facts, (“DRF”) at ¶ 4; Pl. Dep. 27:16-19.) Stephanie Pamphile and Tiffany Williams were assigned to Quad Lower 12 while plaintiff was incarcerated. (DSMF at ¶ 6.) At approximately 9:00 p.m., Plaintiff was handcuffed and placed on a bus to be transported from AMKC to the George R. Vierno Center (“GRVC”) on Rikers Island with approximately eight other inmates. (Id. at ¶ 9.) Plaintiff does not recall who handcuffed him. (Id. at ¶ 10.) Correction officer Turgut was one of the officers assigned to work on the bus while Plaintiff was on it. (Id. at ¶ 11.) Neither Stephanie Pamphile nor Tiffany Williams was present on the bus. (Id. at ¶ 12.)
Plaintiff testified that he received food from fellow inmates housed in a different housing area. Correction officers permitted these other inmates to bring Plaintiff food. (ECF No. 80, Declaration of Bailey Forcier, Exhibit A (“Pl. Dep.”), 26:4-18.)
The bus arrived at GRVC, but the inmates on the bus, including Plaintiff, were not permitted to enter the facility until approximately twelve hours later. (Id. at ¶¶ 13, 17.) For the duration of the twelve hours, Plaintiff was handcuffed on the bus. (Id. at ¶¶14-15, 17.) Plaintiff testified that while on the bus, he asked the correction officers to remove his handcuffs, to which they responded they could not do so. (Id. at ¶¶14-15; Pl. Dep. 39:13-40:23.) Plaintiff now disputes this and instead asserts he asked the officers to loosen his handcuffs, although he does not cite evidence for this assertion.
While on the bus, Plaintiff threatened to file a lawsuit against the correction officers, physically threatened one of them, and tried to kick the back door of the bus open. (Id. at ¶ 16.) After 12 hours, Plaintiff was released from the bus and placed inside a cell at GRVC, at which time his handcuffs were removed. (Id. at ¶ 18.) Plaintiff testified that upon arriving at GRVC, he informed correction officers that he needed to see “mental health” and “medical” and was told he would have to be secured in his cell first and then would be put on a medical list. (See ECF No. 98, Declaration of Amaury Urena, Pl. Dep. 58:12-17.) Plaintiff experienced pain in his shoulders and wrists because of the prolonged wearing of the handcuffs. (DSMF at ¶ 19; Pl. Dep. 72:23-73:3.) Plaintiff offers inconsistent statements in his Opposition and statement of facts regarding the duration of the shoulder and wrist pain, but he testified in his deposition that the pain continued for “a couple days.” (Pl. Dep. 72:23-73:8.) After the night spent on the bus, Plaintiff first received medical treatment on May 9, 2022 when he saw a mental health clinician, but he did not mention any shoulder or wrist injury. (DSMF at ¶ 20.) On May 10, 2022, Plaintiff saw a doctor at GRVC and requested medication for a razor rash, but again did not mention injury to the shoulders or wrists. (Id. at ¶ 21.) Plaintiff did not receive any medical treatment for injury that resulted from the prolonged handcuffing on May 1, 2022. (Id. at ¶ 22.)
Plaintiff did not file a grievance about being detained in Quad Lower 12 or on the bus. (Id. at ¶ 23.) Plaintiff did, however, call 311 to report that he was placed in a cell in Quad Lower 12 and subsequently held overnight on a bus while handcuffed. (DRF at ¶ 13; Pl. Dep. 85:2586:25.) Plaintiff did not follow up with 311 following his call. (DRF at ¶ 13; Pl. Dep. 87:18-21.)
PROCEDURAL HISTORY
Plaintiff initiated this action on June 7, 2022 with the filing of the initial complaint. (ECF No. 2.) On February 9, 2023, Plaintiff filed the First Amended Complaint, which is the operative complaint (the “Complaint”). (ECF No. 34.)
On January 12, 2024, Defendants filed the instant Motion and supporting papers. (ECF No. 79.) Plaintiff opposed the Motion on April 16, 2024 (the “Opposition”) (ECF No. 97), and Defendants replied on May 20, 2024 (the “Reply”) (ECF No. 102.) In the Opposition, Plaintiff suggests that summary judgment should be granted in his favor. Although not brought as a formal motion, the Court construes Plaintiff's Opposition as both an opposition to Defendants' Motion and as a cross-motion for summary judgment. See Davis v. City of Mount Vernon, No. 17 CV 8029 (VB), 2020 WL 3430198, at *1 (S.D.N.Y. June 22, 2020) (construing pro se plaintiff's submission as both a response to defendants' motion for summary judgment and as a crossmotion for summary judgment).
STANDARDS OF REVIEW
Under Rule 56 of the Federal Rules of Civil Procedure, a court may grant summary judgment when “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). “The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists,” but “when the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to” an absence of evidence “on an essential element of the nonmovant's claim.” Souza v. Exotic Island Enters., Inc., 68 F.4th 99, 108 (2d Cir. 2023) (citation and quotation marks omitted); see also In re Whole Foods Mkt. Grp., Inc. Overcharging Litig., 397 F.Supp.3d 406, 419-20 (S.D.N.Y. 2019) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), aff'd sub nom. John v. Whole Foods Mkt. Grp., Inc., 823 Fed.Appx. 46 (2d Cir. 2020). Once a movant has made that showing, “the nonmovant must set forth specific facts showing that there is a genuine issue for trial.” Souza, 68 F.4th at 108 (citation and quotation marks omitted). “Conclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact.” Shannon v. NYC. Transit Auth., 332 F.3d 95, 99 (2d Cir. 2003) (citation and quotation marks omitted); see also Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted); Herlihy v. City of New York, 654 Fed.Appx. 40, 43 (2d Cir. 2016).
“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To receive consideration, the evidence in the record must be admissible at trial. Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001). The Court must “resolve any doubts and ambiguities and draw all reasonable inferences in favor of the nonmoving party.” Johnson v. L'Oreal USA, 2023 WL 2637456, at *3 (2d Cir. March 27, 2023) (citation omitted). “Summary judgment is improper if the evidence is such that a reasonable jury could return a verdict for a nonmoving party.” Banks v. Gen. Motors, LLC, 81 F.4th 242, 258 (2d Cir. 2023) (internal quotation marks and citations omitted).
Additionally, “[i]t is well-settled that pro se litigants generally are entitled to a liberal construction of their pleadings, which should be read to raise the strongest arguments that they suggest.” Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (internal quotations and citation omitted); see also Hemphill v. New York, 380 F.3d 680, 687 (2d Cir. 2004) (“It is well-established that ‘when [a] plaintiff proceeds pro se . . . a court is obliged to construe his pleadings liberally, particularly when they allege civil rights violations.'” (alteration in original) (internal citation omitted)), overruled on other grounds by Ross v. Blake, 578 U.S. 632 (2016). Nevertheless, “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.” Leon v. Dep't of Educ., No. 10CV2725WFKARL, 2017 WL 6729676, at *4 (E.D.N.Y. Sept. 29, 2017), aff'd sub nom. Leon v. New York City Dep't of Educ., 740 Fed.Appx. 759 (2d Cir. 2018) (internal citations omitted).
Under the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, parties to a summary judgment motion are required to each submit a statement of material facts. S.D.N.Y & E.D.N.Y Civ. R. 56.1(a) & (b). The nonmoving party is tasked with responding to each of the facts asserted by the moving party and each fact that is not specifically denied or controverted may be deemed admitted. Id. at 56.1(c). Pursuant to Local Rule 56.1(d), each statement of material fact and each statement denying or controverting a statement of material fact “must be followed by citation to evidence that would be admissible[.]” Id. at 56.1(d).
As a preliminary matter, Defendants ask the Court, for purposes of this motion, to deem all facts set forth in Defendants' Rule 56.1 Statement to be admitted because, despite having received notice of the requirements of the local rule, Plaintiff failed to adhere to those requirements in his opposing statement. Where a plaintiff proceeding pro se does not file a proper local 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.” Cherry v. Byram Hills Cent. Sch. Dist., No. 11-CV-3872 ER, 2013 WL 2922483, at *1 (S.D.N.Y. June 14, 2013). Courts have held that, in light of the special solicitude afforded to pro se litigants, courts may “conduct an assiduous review of the record” for the purpose of deciding the summary judgment motion. Brown v. City of New York, No. 21CIV4632PGGSLC, 2023 WL 2908661 (S.D.N.Y. Jan. 30, 2023), report and recommendation adopted, No. 21CIV4632PGGSLC, 2023 WL 2496089, at *5 (S.D.N.Y. Mar. 14, 2023) (citing Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001), abrogated in part on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009)). Plaintiff's written opposition to the motion, while imperfect, does highlight for the Court those material facts that Plaintiff believes to be in dispute. Therefore, this Court considers the totality of the parties' submissions in identifying disputed material facts and construes those disputed facts in Plaintiff's favor as is appropriate on summary judgment. See Vasquez v. Reilly, No. 15-CV-9528 (KMK), 2018 WL 2768648, at *1 n.1 (S.D.N.Y. June 8, 2018) (collecting cases). However, where Plaintiff makes factual assertions in his opposition papers without citing to evidence, the Court disregards them. See Berry v. Marchinkowski, 137 F.Supp.3d 495, at *520 (S.D.N.Y. 2015).
DISCUSSION
Plaintiff's Complaint raises four separate 42 U.S.C. § 1983 claims: (1) unconstitutional conditions of confinement by the individual defendants; (2) unreasonable seizure by the individual defendants; (3) excessive force by Defendant Turgut and Doe 1; and (4) municipal liability by the City of New York. Defendants argue that summary judgment should be granted because all of Plaintiff's claims fail as a matter of law, Plaintiff failed to exhaust administrative remedies, and the individual Defendants are entitled to qualified immunity.
Defendant John Doe was terminated as a party on February 10, 2023.
1. Exhaustion of Administrative Remedies
Defendants argue that summary judgment should be granted as to Plaintiff's claims of unconstitutional conditions of confinement and unreasonable seizure because Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”) prior to bringing the instant action. Pursuant to the PLRA, “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The PLRA requires “proper exhaustion,” which means “using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).” Woodford v. Ngo, 548 U.S. 81, 90 (2006). However, the Supreme Court has identified three circumstances in which an administrative remedy is not capable of use and therefore exhaustion is not required: (1) where the administrative procedure “operates as a simple dead end - with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) where the process is “so opaque that it becomes, practically speaking, incapable of use”; and (3) “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross v. Blake, 578 U.S. 632, 633 (2016).
At Rikers Island, grievance procedures are governed by the Inmate Grievance Resolution Program (“IGRP”). Rodriguez v. City of New York, No. 1:21-CV-1384-GHW, 2023 WL 2368985, at *3 (S.D.N.Y. Mar. 6, 2023). The December 10, 2018 version of the IGRP, which is the most recent, details the following procedure for processing and resolving inmate complaints: “(1) submission of a complaint to the Office of Constituent and Grievance Services; (2) an appeal to the facility's Commanding officer; (3) an appeal to the facility's Division Chief; and (4) an appeal to the Central Office Review Committee.” Kelly v. Carter, No. 21-CV-8992 (ALC), 2023 WL 5334018, at *3 (S.D.N.Y. Aug. 18, 2023).
Courts routinely take judicial notice of the applicable IGRP procedures. See Hickman v. City of New York, No. 20-CV-4699 (RA)(OTW), 2021 WL 3604786, at *3 (S.D.N.Y. Aug. 12, 2021).
It is undisputed that Plaintiff did not file a grievance form regarding his detainment in Quad Lower 12 between April 30 and May 1, 2022 or his detainment on the bus between May 1 and May 2, 2022. (DSMF at ¶ 23.) Nevertheless, Plaintiff did call 311 to report his grievance regarding that incident, which is permitted under the IGRP. Defendants maintain, however, that Plaintiff failed to exhaust his administrative remedies because he did not complete the remaining steps in the IGRP process, namely, the various appeals. Courts have held that failure to pursue an unanswered grievance constitutes a failure to exhaust administrative remedies. See Rodriguez, 2023 WL 2368985, at *4 (holding that Plaintiff failed to exhaust administrative remedies because he did not follow up after not receiving a response to his 311 call reporting a grievance); Pizarro v. Ponte, No. 17 CIV. 4412 (LGS), 2019 WL 568875, at *5 (S.D.N.Y. Feb. 11, 2019) (finding that Plaintiff failed to exhaust administrative remedies regarding his due process rehousing claim because he failed to pursue his grievance after not receiving a response).
See N.Y.C. Dep't of Corr., Directive 3376R-A, § V.H (December 10, 2018), https://www1.nyc.gov/assets/doc/downloads/directives/Directive3376R-A.pdf (“An inmate may also call 311 to file their complaint.”)
Here, Plaintiff testified that he did not follow up when he did not receive a response to his grievance. (Pl. Dep. 87:10-19.) When asked why he did not follow up, Plaintiff responded that he thought it was “the[ir] job to follow up with me.” (Id. at 87:18-21.) Plaintiff also makes the conclusory assertion that any attempts to exhaust his administrative remedies would have been futile or unavailable. Conclusory assertions are insufficient to fall under an exception to the exhaustion rule. Because Plaintiff failed to pursue his grievance after not receiving a response, Plaintiff did not exhaust his administrative remedies. Regardless, even assuming Plaintiff had exhausted his administrative remedies, for the reasons set forth below, each of Plaintiff's claims also fails on the merits.
2. Section 1983 Claims
Section 1983 provides, in relevant part, that: “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured[.]” 42 U.S.C. § 1983. Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); see Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). To state a claim under § 1983, a plaintiff must allege “(1) the challenged conduct was attributable to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed by the U.S. Constitution.” Castilla v. City of New York, 2013 WL 1803896, at *2 (S.D.N.Y. Apr. 25, 2013); see Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010). The conduct in this case implicates Plaintiff's rights under the Fourteenth Amendment because Plaintiff was a pretrial detainee at the time of the incidents. Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017).
a. Unconstitutional Conditions of Confinement
Defendants argue that Plaintiff's unconstitutional conditions of confinement claim fails as a matter of law because the conduct at issue does not rise to the level of a constitutional violation. To prevail on an unconstitutional conditions of confinement claim, a pretrial detainee must satisfy two prongs: “(1) an objective prong showing that the challenged conditions were sufficiently serious to constitute objective deprivations of the right to due process; and (2) a ‘mens rea prong' that shows that the officer acted with at least deliberate indifference to the challenged conditions.” House v. City of New York, No. 18CIV6693PAEKNF, 2020 WL 6891830, at *11 (S.D.N.Y. Nov. 24, 2020) (internal citations and quotations omitted). In order to meet the objective prong, a plaintiff must show “that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to [her] health.” Moore v. Cnty. of Nassau, No. 18-CV-4786 (ST), 2023 WL 2477631, at *4 (E.D.N.Y. Mar. 13, 2023) (citing Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017)). While there is no static test to determine whether an objective deprivation was sufficiently serious, courts look to “contemporary standards of decency.” Darnell, 849 F.3d at 30. Many courts have held that “unpleasant or unsanitary conditions only rise to the level of a Constitutional violation if they amount to an objectively and sufficiently serious denial of the minimal civilized measure of life's necessities.” Flores v. City of New York, No. 21CV1680PGGKHP, 2022 WL 4705949, at *14 (S.D.N.Y. Aug. 8, 2022), report and recommendation adopted, No. 21CIV1680PGGKHP, 2022 WL 4592892 (S.D.N.Y. Sept. 30, 2022).
Neither Plaintiff's confinement in a cell in Quad Lower 12, nor his confinement on the bus rise to the level of a constitutional violation. Plaintiff does not provide facts to suggest that either confinement posed an unreasonable risk of serious damage to his health. As to Plaintiff's claim regarding his confinement to the cell, Plaintiff testified in his deposition that the cell contained a mattress, toilet, and sink, and that he received food, albeit from other inmates. (DSMF at ¶ 5; Pl. Dep. at 26:4-18.) Although Plaintiff asserts in the Opposition that his cell was flooded, he testified that he himself flooded the cell. (DRF at ¶ 4; Pl. Dep. 27:16-19.) A 24-hour confinement to a cell with a mattress, toilet, and sink, that was flooded based on Plaintiff's own actions, does not rise to the level of a deprivation of constitutional rights, even if Plaintiff was forced to miss a meal, because there is no evidence that Plaintiff's health was at risk. See Flores, 2022 WL 4705949, at *15 (finding plaintiff's allegation that he was forced to sit among sewage and toilet water that flooded his cell for a day not enough to constitute a constitutional violation because plaintiff did not allege he suffered sickness or ill effects resulting from such exposure); Mejia v. Carter, No. 121CV09049ATSDA, 2022 WL 17653826, at *5 (S.D.N.Y. Nov. 2, 2022), report and recommendation adopted, No. 21CIV9049ATSDA, 2022 WL 17624254 (S.D.N.Y. Dec. 13, 2022) (holding that the deprivation of food and water for a seven to eight-hour period does not rise to the level of a constitutional violation); Daniels v. Carter, No. 21CIV8985ATSLC, 2022 WL 17979915, at *9 (S.D.N.Y. Nov. 22, 2022), report and recommendation adopted, No. 21CIV8985ATSLC, 2022 WL 17978908 (S.D.N.Y. Dec. 28, 2022) (finding that an eight-hour deprivation of food and water was objectively not sufficiently serious to give rise to a constitutional violation as a matter of law); Genao v. City of New York, No. 21CV00303ATVF, 2023 WL 4633486 (S.D.N.Y. June 20, 2023), report and recommendation adopted, No. 21CIV303ATVF, 2023 WL 4625522, at *14 (S.D.N.Y. July 19, 2023) (finding Plaintiff's allegations that he was denied access to his property, linens and blankets for one night, and breakfast to be insufficient to sustain a conditions of confinement claim). Therefore, Plaintiff has not satisfied the objective prong of his conditions of confinement claim regarding his confinement to a cell in Quad Lower 12.
Plaintiff's confinement on the bus for twelve hours while handcuffed also does not rise to the level of a constitutional violation because Plaintiff does not provide facts showing an unreasonable risk of serious damage to his health. See Darnell, 849 F.3d at 30 (quoting Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013)) (to state a claim for a violation of due process based on conditions of confinement, a plaintiff must show the challenged “conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health, which includes the risk of serious damage to physical and mental soundness.”). In a similar case, Livigni v. Ortega, the Court held that leaving inmates on a bus overnight while handcuffed, without access to water or a restroom, did not rise to the level of a constitutional violation. No. 15-CV-9454 (CM), 2016 WL 6143351, at *4 (S.D.N.Y. Oct. 19, 2016). In contrast, the court in Colson v. Mingo held that the confinement conditions satisfied the objective prong where plaintiff was handcuffed on a bus for fifteen hours in close proximity to shattered glass, his own human waste, as well as vomit, feces and urine of other passengers with no access to a bathroom, water, or any hygienic materials. No. 18-CV-2765 (JGLC), 2024 WL 1018582, at *13 (S.D.N.Y. Mar. 8, 2024). This case is more similar to Livigni than Colson because Plaintiff asserts that he was confined to a bus overnight while handcuffed but provides no evidence that the situation posed an unreasonable risk of serious damage to his health. And, specifically, there is no allegation that there were dangerous or unsanitary conditions on the bus. Therefore, Plaintiff has not satisfied the objective prong of his conditions of confinement claim with respect to his detention on the bus.
Plaintiff relies on Hope v. Pelzer, in which the Supreme Court held the plaintiff's constitutional rights were violated when he was hitched to a post and was forced to remain there for seven hours shirtless while the sun burned his skin and without access to water. 536 U.S. 730, 735-37 (2002). Sun exposure for seven hours without cover or water clearly poses a threat to one's health, but those factors do not exist here, where Plaintiff was not exposed to the hot sun. Plaintiff also cites Palmer v. Johnson, but that case is distinguishable. 193 F.3d 346 (5th Cir. 1999) (finding Plaintiff established the objective prong when he was confined outdoors on a cold and windy night with forty-nine other inmates for seventeen hours with no shelter, jacket, source of heat or access to bathroom facilities and was forced to relieve himself in the small, bounded area shared with the other inmates). This case is unlike Palmer because it does not involve allegations of exposure to the elements or human waste, both of which could pose a threat to an individual's health.
Because Plaintiff does not satisfy the objective prong, I do not need to reach the subjective prong. See Moore v. Cnty. of Nassau, No. 18-CV-4786 (ST), 2023 WL 2477631, at *7 (E.D.N.Y. Mar. 13, 2023) (holding summary judgment is appropriate based on Plaintiff's failure to demonstrate that the objective prong has been satisfied). Accordingly, I respectfully recommend granting Defendants' motion for summary judgment as to Plaintiff's conditions of confinement claim and denying Plaintiff's cross-motion because Plaintiff has failed to raise any issues of material fact with regard to whether the conditions of confinement were sufficiently serious to constitute objective deprivations of the right to due process.
b. Unreasonable Seizure Against Individual Defendants
Defendants argue that Plaintiff's unreasonable seizure claim fails as a matter of law because, at the time of seizure, Plaintiff was already incarcerated. Plaintiff concedes in his Opposition that “an inmate cannot be illegally seized while he is lawfully incarcerated because the incarceration itself is the only relevant seizure for the purposes of the Fourth Amendment.” (quoting Garcia-Garcia v. City of New York, No. 12 CIV. 1302, 2013 WL 3832730, at *4 (S.D.N.Y. July 22, 2013)).
Accordingly, I respectfully recommend granting Defendants' motion for summary judgment as to Plaintiff's unreasonable seizure claim and denying Plaintiff's cross-motion. See Garcia-Garcia, 2013 WL 3832730, at *4-5 (granting motion to dismiss plaintiff's unlawful seizure claim because plaintiff was already in custody at the time of the alleged seizure); Bristol v. Queens Cnty., No. CV095544JFBAKT, 2018 WL 5077166, at *11 (E.D.N.Y. Mar. 30, 2018) (same), report and recommendation adopted, No. 09CV5544JMAAKT, 2018 WL 4328828 (E.D.N.Y. Sept. 11, 2018).
In the Opposition, Plaintiff purports to move to amend his Complaint to restore his first filed complaint as the operative complaint. This request is not properly raised in an opposition for summary judgment. In any event, the first filed complaint does not cure any of the deficiencies described herein.
c. Excessive Force Against Defendants Turgut and Doe 1
Defendants argue that Plaintiff's excessive force claim fails as a matter of law because handcuffing Plaintiff was objectively reasonable and Plaintiff cannot show injury from the handcuffing. To establish a claim of excessive force, “a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable” given the facts and circumstances at the time. Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015).
When evaluating the reasonableness of handcuffing, courts consider evidence that “1) the handcuffs were unreasonably tight; 2) the defendants ignored the arrestee's pleas that the handcuffs were too tight; and 3) the degree of injury to the wrists.” McGarrell v. Arias, No. 18CIV2273GBDHBP, 2019 WL 2528370, at *4 (S.D.N.Y. Mar. 1, 2019), report and recommendation adopted, No. 18CIV2273GBDHBP, 2019 WL 1254880 (S.D.N.Y. Mar. 19, 2019) (internal citations omitted). Here, Plaintiff asserts that he asked for his handcuffs to be loosened. While Plaintiff testified that he asked for the handcuffs to be removed rather than loosened, the Court notes that the officers could have offered to loosen Plaintiff's handcuffs in response to his pleas to have them removed, which neither party asserts the officers did. In any case, it is undisputed that while on the bus, Plaintiff threatened to file a lawsuit against the correction officers, physically threatened one of them, and tried to kick the back door of the bus open. (DSMF at ¶ 16.) Therefore, it was reasonable for the correction officers to believe that removing Plaintiff's handcuffs could pose a security threat.
In addition, Plaintiff's alleged injury from the handcuffing was minor - pain in his shoulders and wrist. When considering the severity of injury factor, “[t]here is a consensus among courts in this circuit that tight handcuffing does not constitute excessive force unless it causes some injury beyond temporary discomfort.” Ward v. Doe #3, No. 22-CV-6497-FPG, 2023 WL 3025218, at *3 (W.D.N.Y. Apr. 20, 2023) (internal citations omitted). Here, Plaintiff testified that the pain in his shoulders and wrists lasted for a couple of days. (Pl. Dep. 72:23-73:3.) Courts have found more serious injuries than Plaintiff's to be de minimis. See Johnson v. City of New York, No. 18-CV-5623 (ALC), 2020 WL 3100197, at *3 (S.D.N.Y. June 11, 2020) (dismissing plaintiff's excessive force claim where detective pulled plaintiff out of holding pen, causing plaintiff's head and body to hit the wall, and other officers grabbed plaintiff and shoved him against wall to handcuff him and plaintiff suffered a bump on his forehead, head pain, bruises on his left and right wrists, and numb wrists); McGarrell, 2019 WL 2528370, at *4 (“De minimis injuries from handcuffing such as numbness or inflammation are insufficient to sustain an excessive force claim.”); cf. Ali v. Ramos, No. 1:16-CV-01994 (ALC), 2020 WL 5817009 (S.D.N.Y. Sept. 30, 2020) (denying summary judgment on excessive force claim where plaintiff suffered nerve damage from handcuffing that required surgery). Although Plaintiff testified that he requested medical treatment upon arriving at GRVC, the medical records attached to Defendants' Motion indicate that Plaintiff did not receive any medical treatment until May 9, 2024, at which point he did not mention any injury to his shoulders or wrists. (DSMF at ¶ 20.) Therefore, Plaintiff did not have any continuing injury from the night spent on the bus, which further supports dismissal. See Falls v. (Police Officer) Detective Michael Pitt, No. 16-CV-8863 (KMK), 2021 WL 1164185, *14 (S.D.N.Y. Mar. 26, 2021) (holding that the fact that the tight handcuffing did not cause plaintiff continuing injury was fatal to his excessive force claim).
To the extent Plaintiff attempts to raise a cruel and unusual punishment claim in the Opposition, it is improper. See Espinoza v. New York City Dep't of Transportation, 304 F.Supp.3d 374, 384 (S.D.N.Y. 2018) (finding that 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 the plaintiff's claim.”) (internal citations omitted). In any case, because Plaintiff was a pretrial detainee at the time of the relevant events, his claims are analyzed under the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishment Clause of the Eighth Amendment. See Holland v. City of New York, 197 F.Supp.3d 529, 545 (S.D.N.Y. 2016).
Plaintiff cites Lynch ex rel. Lynch v. City of Mount Vernon, 567 F.Supp.2d 459 (S.D.N.Y. 2008), but that case does not support his position. In Lynch, the court granted dismissal of the excessive force claim despite the fact that there was evidence that the handcuffs were too tight because there was no evidence that the tight handcuffing injured the plaintiff to any serious degree. Id. at 468-69.
Accordingly, I recommend granting Defendants' summary judgment motion as to Plaintiff's excessive force claim and denying Plaintiff's cross-motion.
d. Municipal Liability Claim
Defendants argue that Plaintiff's municipal liability claim fails as a matter of law because Defendants did not violate Plaintiff's constitutional rights. A municipality can be held liable under 42 U.S.C. § 1983 if the deprivation of the plaintiff's rights under federal law is caused by a governmental custom, policy, or usage of the municipality. Blanco v. Success Acad. Charter Sch., Inc., No. 23-CV-01652 (LJL), 2024 WL 965001, at *20 (S.D.N.Y. Mar. 6, 2024) (citing Monell v. Department of Social Services, 436 U.S. 658, 690-91 (1978)). However, failure to establish an underlying constitutional violation is fatal to a municipal liability claim under Monell. See Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013) (“Unless a plaintiff shows that he has been the victim of a federal law tort committed by persons for whose conduct the municipality can be responsible, there is no basis for holding the munici stand-alone cause of action[.]"); Brown v. City of Ne 2908661 (S.D.N.Y. Jan. 30, 2023) (holding summary j liability claim because plaintiff did not establish an i and recommendation adopted, No. 21CIV4632PGGS 2023). Because Plaintiff's underlying 42 U.S.C. § 19< municipal liability claim also fails.
Accordingly, I recommend granting Defendai Plaintiff's municipal liability claim and denying Plain
CONCLUSION
For the foregoing reasons, I respectfully respectfully recommended that defendants motion for summary judgment be granted in its entirety and that plaintiff's cross-motion for summary judgment be denied in its entirety.
NOTICE
Plaintiff shall have seventeen days and Defendants shall have fourteen days 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 only when service is made under Fed.R.Civ.P. 5(b)(2)(C)(mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). A party may respond to another party's objections after being served with a copy. Fed. R. Civ. P.72(b)(2).
Plaintiff shall have seventeen days to serve and file any response. Defendant shall have fourteen days to serve and file any response. Any objections and any responses to such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Jennifer L. Rochon at the United States Courthouse, 500 Pearl St., New York, New York 10007, and served on the other parties. 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 Judge Rochon. The failure to file timely objections shall result in a waiver of those objections for purposes of appeal. 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).