Opinion
1:21-cv-01573 (PAE) (VF)
06-17-2022
JUAN M. VAZQUEZ, Plaintiff, v. CITY OF NEW YORK; CYNTHIA BRANN, Commissioner, for the NYCDOC; DANA ROTH, Inspector General for the NYCDOC; DERRICK CEPHAS, Chairman for the Board of Correction; JOSEPH CAPUTO, Warden of RNDC; UNKNOWN CORT, Deputy Warden of RNDC; UNKNOWN FERRARAS, Deputy Warden of RNDC; UNKNOWN CORPORAN; UNKNOWN APONTE, Supervising Captain for RNDC; ADJANIE CRUZ, Legal Coordinator for RNDC; UNKNOWN USHER, Correction Officer for RNDC; UNKNOWN HERRERA, Correction Officer for RNDC; JEAN RENE, Warden for OBCC; JOSEPH GRIMA, Deputy Warden for OBCC; JOHN/JANE DOE, Deputy Warden of Programs for OBCC; UNKNOWN SMALLS, Supervising Officer for OBCC; UNKNOWN HICKS, Supervising Officer for OBCC; UNKNOWN HICKS, Correction Officer for OBCC; UNKNOWN ALEXANDER, Correction Officer for the ESU/SOP; JOHN DOE, Supervising Captain ESU; NEW YORK CITY HEALTH & HOSPITALS INC.; LAURA MELLO, Records Access Officer for the NYCDOC; JOHN MORLEY, Director of Health for the NYSDOCCS; KAY ARNOLD, Director Health for ACF; DAVID WILLIAMS, Supervising Physician for ACF; JOHN/JANE DOE, Legal Coordinator for NYCDOC; JOHN/JANE DOES, all those in active participation, Defendants.
HONORABLE PAUL A. ENGELMAYER, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
VALERIE FIGUEREDO UNITED STATES MAGISTRATE JUDGE
Plaintiff Juan M. Vazquez, proceeding pro se and in forma pauperis, is an inmate currently incarcerated at Attica Correctional Facility. Plaintiff brings this action under 42 U.S.C. §1983 against the City of New York (the “City”) and various individual Defendants (collectively, “Defendants”), alleging that Defendants violated his constitutional rights. See Amended Complaint, filed July 28, 2021, ECF No. 18-1 (“Am. Compl.”). The City and Defendant Dana Roth move to dismiss Plaintiff's claims under Federal Rule of Civil Procedure 12(b). See Defs.' Br., filed Feb. 15, 2022, ECF No. 56.
Although Roth did not join the City's Motion to Dismiss initially, Roth did join the motion by the time the City filed its Reply Memorandum on April 8, 2022 (see ECF No. 61 at 8).
For the reasons set forth below, I respectfully recommend that the City and Roth's Motion to Dismiss be GRANTED.
Based on a review of the docket, only the City and Roth have been served with a summons. The other Defendants named in the Amended Complaint have not yet been served and have not appeared in the action. Cognizant of the Second Circuit's “general policy of disapproving sua sponte dismissals of pro se prisoner petitioners before service and appearance,” to the extent I recommend dismissal of any claim in the Amended Complaint, it is only as asserted against the City and Roth. Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987) (citing Massop v. Coughlin, 770 F.2d 299, 301 (2d Cir. 1985)) (italics in original).
I. BACKGROUND
A. Facts Alleged in the Amended Complaint
Plaintiff entered the custody of the Department of Corrections (“DOC”) on September 17, 2017, and was transferred from the Manhattan Detention Complex to Rikers Island on January 26, 2018. Am. Compl. at 13, ¶¶ 68, 71-72. On January 9, 2020, Plaintiff entered the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”). Id. at 49, ¶ 494.
On December 18, 2018, while detained at the Robert N. Davoren Complex on Rikers Island (“RNDC”), Plaintiff “was given a Report of Notice of infraction for fighting and assault” after he was assaulted by another detainee, Aaron Williams, several days earlier. Id. at 13-14, ¶¶ 73, 75. Williams “was an inmate on the Mental Health Roster” who had been “prescribed psychotropic medication.” Id. at 13, ¶ 74. Plaintiff never received a hearing for this report and “an administrative appeal was unavailable” because the infraction was dismissed “on the basis of self-defense.” Id. at 14, ¶¶ 76-77.
On November 2, 2019, while detained at Otis Bantum Correctional Center on Rikers Island (“OBCC”), Plaintiff fought with another detainee, Jason Quiles, “an inmate on the Mental Health Roster” who had been “prescribed psychotropic medication.” Id. at 14, ¶¶ 80-81. Plaintiff had a hearing for the incident and was “reprimanded for th[e] altercation.” Id. at 14, ¶ 82. At the hearing, Plaintiff informed the hearing officer that “there were numerous Mental Health referrals” that had been “submitted by Corrections Officers for [Quiles].” Id. at 14, ¶ 83. Plaintiff “appealed the sanction” but never received a response. Id. at 14, ¶ 88. Plaintiff alleges that the DOC's failure to respond to his appeal, in addition to preventing Plaintiff from “exhausting” his “administrative remedy,” demonstrates a “practice and pattern” by DOC of intentionally misreporting disciplinary infractions involving mentally ill inmates and covering up the violence within Rikers Island. Id. at 14-15, ¶¶ 89, 93. Plaintiff also alleges that the “intentional and willful misreporting of violent incidents created an ‘atypical and significant' violent prison condition.” Id. at 15, ¶ 91. Plaintiff claims that because unnamed Defendants “callously disregarded” the mental-health referrals and otherwise did not provide Quiles with adequate mental-health treatment, they “create[ed] a substantial risk of harm to Plaintiff” and failed to protect Plaintiff from the increased risk of violence posed by Quiles. Id. at 14-15, ¶¶ 83-86, 91.
On January 4, 2020, Jean Jeffrey, another detainee, “violently assaulted” Plaintiff. Id. at 15, ¶ 94. A disciplinary report falsely claiming that Plaintiff had intentionally fought Jeffrey was later dismissed because Plaintiff was found to have acted in self-defense. Id. at 15, ¶¶ 97, 99. Plaintiff was not provided with an opportunity to appeal. Id. at 15, ¶ 100. Plaintiff alleges that unnamed Defendants disregarded Jeffrey's “propensity for violent outbursts” and “allowed [Jeffrey] to remain in an open dormitory area,” endangering Plaintiff's safety. Id. at 15, ¶ 96. According to Plaintiff, the assault by Jeffrey “may have been directly related” to threats made by Defendant Adjanie Cruz, the RNDC Legal Coordinator, to have Plaintiff “assaulted by Corrections Officers and/or inmates” in response to Plaintiff having filed administrative grievances against Cruz around the same time. Id. at 16, ¶¶ 102, 104, 108. The Amended Complaint provides that the attack by Jeffrey “occurred in ‘temporal proximity'” to “sexual abuse claims Plaintiff filed against Ms. Cruz.” Id. at 16, ¶ 104.
In addition, Plaintiff, who has 25 years of paralegal experience, was fired from his job in the prison's law library on or about June 7, 2019, allegedly in retaliation because Plaintiff had filed grievances against Defendants Cruz and Corrections Officer (“C.O.”) Usher on or about June 6-7, 2019. Id. at 26-27, ¶¶ 229-39. Plaintiff filed “administrative grievances” because Cruz was verbally abusive to Plaintiff, groped him, and made “sexually derogatory remarks” towards him. Id. at 24, 26, ¶¶ 202-09, 238-40. Plaintiff alleges that, during one incident, Cruz “fondled [Plaintiff's] private parts” causing Plaintiff to have an erection, after which Cruz “began laughing.” Id. at 24, ¶¶ 206-07. According to Plaintiff, Usher observed these events and did not intervene on Plaintiff's behalf. Id. at 26, ¶¶ 237-40. On or about June 7, 2019, Usher informed Plaintiff “that he was terminated from [his job assignment in] the [law library] because he filed grievances against [Usher] and Ms. Cruz,” and claimed that “Ms. Cruz ‘felt uncomfortable' with [Plaintiff] working in the [law library] after filing administrative grievances against her.” Id. at 26, ¶¶ 237-38. Plaintiff's grievances concerning Cruz and Usher's retaliatory conduct, submitted on or about June 8, 2019, went unaddressed. Id. at 27, ¶ 247. Plaintiff further claims that he was transferred to OBCC on June 18, 2019, in retaliation for filing such grievances and that the “retaliatory transfer” caused him to suffer the loss of (1) a job assignment, (2) wages, and (3) “adequate legal access resulting in actual injury.” Id. at 28, 31, ¶¶ 261, 287-90.
While at OBCC, Plaintiff submitted numerous applications requesting “a variance” to work in the law library, but he alleges that certain Defendants “would not grant” him a variance because he is Hispanic. Id. at 41, ¶¶ 398-99. Plaintiff further claims that similarly situated African American inmates were “given variances to work” in the law library, among other places. Id. at 41, ¶ 400. Plaintiff was not permitted to file an administrative grievance concerning these allegedly “racially discriminatory job assignments.” Id. at 42, ¶¶ 405-09.
On October 23, 2019, Plaintiff was diagnosed with “Halifax limited,” and “Onset of Arthritic condition,” by an OBCC doctor, and despite a “medical order . . . recommending Plaintiff wear [o]rthopedic [f]ootwear,” Plaintiff was denied “medical footwear for his serious medical condition that caused him sufficiently serious pain.” Id. at 42, ¶¶ 413-16. Plaintiff alleges that the footwear provided by DOC “is not [o]rthopedic and/or supportive and can actually aggravate, worsen and create medical foot problems” and “affected [his] daily activities, such as walking and standing.” Id. at 43, ¶¶ 418-19. Plaintiff submitted a request “to be given his own personal footwear and/or be provided with Orthopedic Footwear,” but the request was denied. Id. at 43, ¶¶ 420, 423. On November 18, 2019, Defendant Correctional Officer Alexander confiscated a pair of sneakers from Plaintiff despite Plaintiff's medical condition and medical order. Id. at 43, ¶¶ 427-33. Plaintiff's grievance about that incident went unanswered. Id. at 44, ¶¶ 435. Further, Plaintiff was informed by a doctor at OBCC that surgery for one of his foot conditions (hallux limitus) was denied because it was considered “elective surgery” by the DOC even though the condition caused Plaintiff “extreme pain.” Id. at 46, ¶¶ 456-57.
The Court assumes that Plaintiff's reference to “Halifax Limited” was intended to refer to the foot condition known as “Hallux Limitus”- a condition in which an individual's hallux (the joint connecting the big toe and foot) becomes inflamed, sore, and stiff. See https://www.webmd.com/osteoarthritis/what-is-hallux-limitus.
In addition, Plaintiff informed the Rikers Island medical department that he suffers from sciatica, a “very painful” condition, as well as muscle loss in his right leg. Id. at 46, ¶¶ 460-61. On or about November 1, 2019, Plaintiff submitted a request for “appropriate bedding” because the mattresses provided by DOC “aggravated Plaintiff's sciatic condition.” Id. at 46, ¶ 462. Plaintiff's request was not acted upon. Id. at 47, ¶ 467. According to Plaintiff, the mattresses provided by DOC are “so worn they provide a thin layer of protection against the steel,” causing Plaintiff 's “[s]ciatic condition to worsen.” Id. at 47, ¶ 466. Plaintiff further claims that the mattresses are “torn with the insulation exposed” causing Plaintiff “sleep deprivation” and “to seek medical attention for rashes.” Id. Plaintiff also was not provided treatment by “a [n]eurologist and [p]odiatrist” despite scheduling appointments with those specialists. Id. at 47, ¶¶ 468-69. Plaintiff alleges that DOC failed to send his complete medical history to DOCCS, and that he is still not receiving treatment for his medical conditions. Id. at 51, ¶¶ 518-25.
B. Procedural History
Plaintiff filed his original complaint on February 19, 2021. See ECF No. 2 (“Compl.”). On May 17, 2021, the Honorable Paul A. Engelmayer issued an Opinion & Order to Amend (the “Order”), dismissing Plaintiff's Complaint, in part, and allowing Plaintiff to replead certain claims. The Court dismissed, and denied Plaintiff leave to re-plead, numerous claims, including: (1) those brought against immune parties (i.e., judicial officers, prosecutors, and state agencies); (2) parties against whom Plaintiff does not allege viable §1983 claims (i.e., private defense attorneys and state FOIL officers); (3) claims that are barred by the Younger v. Harris, 401 U.S. 37 (1971), abstention doctrine (i.e., those concerning pending state criminal charges against Plaintiff); and (4) claims for which venue is not proper in this District (i.e., those arising out of Plaintiff's detention at Attica Correctional Facility). See Order at 26. The Order also denied Plaintiff leave to replead his class claims. Id.
In the amended complaint, Plaintiff repleads certain claims for which Judge Engelmayer denied leave to amend, including (1) claims alleging injury on behalf of other inmates, for which Plaintiff lacks standing, see Am. Compl. at 14, 20-21, 34, ¶¶ 84-85, 156-60, 325-26; Order at 89, and (2) claims alleging insufficient law library access, see Am. Compl. at 25, 40-41, ¶¶ 21626, 384-95; Order at 14-15. Because those claims were dismissed, and the Court denied Plaintiff leave to replead them, I do not address them here.
The Court, however, permitted Plaintiff to amend his Complaint to provide additional factual support for certain claims. The Court allowed Plaintiff to replead several claims-all pertaining to the conditions of his confinement at Rikers Island: (1) a Fourteenth and Eighth Amendment deliberate-indifference claim based on Plaintiff's alleged medical needs; (2) a Fourteenth and Eighth Amendment deliberate-indifference claim alleging that Defendants failed to protect Plaintiff from violent inmates; (3) a First Amendment retaliation claim based on Plaintiff's filing of grievances and complaints; (4) an Equal Protection claim based on alleged racially discriminatory hiring; and (5) a procedural due process claim arising from various disciplinary proceedings involving Plaintiff. See Order at 11-14, 16-18. As to those claims, the Court explained that Plaintiff was granted leave to file an amended complaint, alleging facts to show (1) “how each defendant was personally involved in violating his constitutional rights,” and (2) “that the City of New York may be held liable for what occurred.” Id. at 11. The Court further instructed Plaintiff that his “amended complaint must tell the Court: who violated his rights; what facts show that his rights were violated; when such violation occurred; where such violation occurred; and why [Plaintiff] is entitled to relief.” Id. at 27.
Additionally, the Court concluded that Plaintiff had “arguably” alleged sufficient facts to support two claims: a claim that his medically prescribed footwear had been seized; and a claim that Defendant Cruz had groped and fondled Plaintiff's genitalia. See Id. at 11, n.4, 27-28. The Order directed Plaintiff to re-allege those claims in the Amended Complaint, “and provide any additional facts about those two matters.” See id. at 11, n.4.
As stated in further detail below, Plaintiff has sufficiently pled a deliberate-indifference claim as against Defendant Cruz based on the allegations of inappropriate sexual conduct by Cruz towards Plaintiff. Plaintiff has also pled a First Amendment retaliation claim as against Defendants Cruz and Usher as it relates to Plaintiff's termination from his job assignment at the law library.
Plaintiff filed an Amended Complaint on July 28, 2021. The City moved to dismiss the complaint on February 15, 2022. Defendant Roth joined the City's motion to dismiss on April 8, 2022. The motion was fully briefed as of April 8, 2022.
II. LEGAL STANDARDS
A. Standard of Review for a Motions to Dismiss
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint “must plead ‘enough facts to state a claim to relief that is plausible on its face.'” Green v. Dep't of Educ. of City of New York, 16 F.4th 1070, 1076-77 (2d Cir. 2021) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (citation omitted). In determining if a claim is sufficiently plausible to withstand dismissal, a court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The court's function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). When presented with a motion to dismiss pursuant to Rule 12(b)(6), the court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (citation omitted).
The Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest arguments that they suggest.” Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)); McKithen v. Brown, 481 F.3d 89, 96 (2d. Cir. 2007) (holding that pleadings and allegations of a pro se plaintiff must be construed liberally for the purposes of deciding motions pursuant to 12(b)(6)). But the “special solicitude” in pro se cases, Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (citation omitted), has its limits - “a pro se complaint must state a plausible claim for relief,” Hogan v. Fisher, 738 F.3d 509, 515 (2d Cir. 2013). See also Morren v. New York University, 2022 WL 1666918, at *12 (S.D.N.Y. Apr. 29, 2022) (“[T]he Court may not invent factual allegations that a plaintiff has not pled.”) (citation and internal quotation marks omitted). The “factual allegations [must be] sufficient to raise a right to relief above the speculative level.” Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008) (internal quotation marks omitted); Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (“Even in a pro se case, however . . . threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”) (citation and internal quotation marks omitted). A Court must dismiss a prisoner's complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). Because issues of fact, credibility, and the weight of the evidence are not properly considered on a motion to dismiss, the Court has not considered them here. See Morren, 2022 WL 1666918, at *12.
B. Claims Arising Under 42 U.S.C. § 1983
“Individuals who have suffered a deprivation of a constitutionally protected right may seek relief under [42 U.S.C. § 1983].” Scheckells v. Goord, 423 F.Supp.2d 342, 346 (S.D.N.Y. 2006). To state a claim under § 1983, a plaintiff must allege that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a “state actor.” West v. Atkins, 487 U.S. 42, 48 (1988) (citation omitted).
A plaintiff proceeding under § 1983 must also allege facts showing a defendant's direct and personal involvement in the alleged constitutional deprivation. See Spavone v. New York State Dep' t of Corr. Serv., 719 F.3d 127, 135 (2d Cir. 2013) (“It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.”) (citation omitted). A defendant may not be held liable under §1983 solely because that defendant employs or supervises a person who violated the plaintiff's rights. See Iqbal, 556 U.S. at 676 (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior”). Instead, “[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).
Additionally, to state a claim against the City of New York, it is not enough for the plaintiff to allege that a municipal employee or agent engaged in some wrongdoing. Instead, the plaintiff must show that the municipality itself caused the violation of his rights. See Connick v. Thompson, 563 U.S. 51, 60 (2011) (citing Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 692 (1978)). Specifically, to state a § 1983 claim against a municipality, a plaintiff must allege facts showing (1) the existence of a municipal policy, custom, or practice, and (2) that the policy, custom, or practice caused the violation of the plaintiff's constitutional rights. See Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012); Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403, 415 (1997).
III. DISCUSSION
A. Deliberate-Indifference to Plaintiff's Medical Needs
Plaintiff alleges that while detained at Rikers Island he was (1) denied medically prescribed footwear for his foot condition (hallux limitus and onset of arthritis) and his personal footwear was confiscated; (2) denied “appropriate bedding” to accommodate his sciatica; and (3) denied surgery for his foot condition and appointments with a podiatrist and neurologist. See Am Compl. at 42-47. The Eighth Amendment protects convicted prisoners against “deliberate indifference to serious medical needs,” City of Revere v. Mass. Gen. Hospital, 463 U.S. 239, 239, 243-44 (1983), and the Fourteenth Amendment is the source of such protection for pretrial detainees, Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). In his initial complaint, Plaintiff did not delineate whether the incidents involving the denial of medical care arose when he was a pretrial detainee or a convicted prisoner. See Order at 11; see also Compl. at 52-56. Likewise, Plaintiff in his amended complaint has not included any additional facts from which to determine whether he was a pretrial detainee or a convicted prisoner at the time of the alleged incidents. The Court thus examines Plaintiff's allegations in the Amended Complaint under both the Eighth Amendment and Fourteenth Amendment standards for claims alleging deliberate indifference to medical needs.
In his Amended Complaint, Plaintiff alleged that he was “under the Custody of the NYCDOC from September 17, 2017, until January 9, 2020.” Am. Compl. at 13, ¶ 68. Defendants rely on this allegation to argue that the acts at issue occurred while Plaintiff was a pretrial detainee. See Defs.' Br. at 5. But Plaintiff could have been in the custody of the DOC after his conviction and while he was awaiting transfer to a state facility. It thus is not apparent from the Amended Complaint that merely because Plaintiff was in the custody of the DOC that he was a pretrial detainee as opposed to a convicted prisoner.
Deliberate-indifference claims under the Eighth and Fourteenth Amendments include two prongs: an objective component and a subjective component. Darnell, 849 F.3d at 29. To satisfy the objective prong, “‘the inmate must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health.'” Id. (citation omitted). The alleged deprivation must be, in objective terms, “sufficiently serious, in the sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exists.” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)). Stated differently, a plaintiff must allege “a deprivation that is ‘objectively, sufficiently serious' that he was denied ‘the minimal civilized measure of life's necessities.'” Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)); see also Patterson v. Ponte, No. 16-CV-3156 (PAE) (JCF), 2017 WL 1194489, at *5 (S.D.N.Y. Mar. 30, 2017), report and recommendation adopted, 2017 WL 1405753 (S.D.N.Y. Apr. 17, 2017). “Although the Constitution does not require ‘comfortable' prison conditions, the conditions of confinement may not ‘involve the wanton and unnecessary infliction of pain.'” Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 349 (1981)). Each condition “must be measured by its severity and duration, not the resulting injury.” Darnell, 849 F.3d at 32.
The subjective component differs for claims under the Eighth and Fourteenth Amendments. See Darnell, 849 F.3d at 34-35. Under the Eighth Amendment, “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. Thus, an official is not liable under the Eighth Amendment for “failure to alleviate a significant risk that he should have perceived but did not.” Id. at 838. In contrast, an official can be liable under the Fourteenth Amendment when he “knew, or should have known, that the condition posed an excessive risk to health or safety,” and intentionally or “recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee.” Darnell, 849 F.3d at 35 (citing Kingsley v. Hendrickson, 576 U.S. 389 (2015)) (emphasis added). Under either test, the subjective component requires a showing that the defendant acted with a “sufficiently culpable state of mind.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (citation and internal quotation marks); see also Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) (“A serious medical condition exists where ‘the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.'”) (quoting Chance, 143 F.3d at 702). A challenge to medical care based on the inadvertent or negligent failure to provide adequate care does not raise a constitutional claim under either the Fourteenth Amendment or the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 105-06 (1976); Chance,143 F.3d at 703 (“[N]egligence, even if it constitutes medical malpractice, does not, without more, engender a constitutional claim.”).
1. Foot Conditions and Orthopedic Footwear
Beginning with Plaintiff's claim concerning his foot conditions and the denial of orthopedic footwear, Plaintiff's allegations are insufficient to plead a § 1983 claim under either the Fourteenth or Eighth Amendment standard for the deliberate indifference to medical needs. In his Amended Complaint, Plaintiff alleges that he was denied his request for orthopedic footwear despite a diagnosis of hallux limitus and onset of arthritis, and despite receiving a medical order recommending such footwear. See Am. Compl. at 42, ¶¶ 413-16. Plaintiff also alleges that the footwear he was provided by the prison “is not [o]rthopedic and/or supportive and can actually aggravate, worsen and create medical foot problems.” See id. at 43, ¶ 418. Plaintiff further claims that his foot conditions affected his daily activities and caused him “extreme pain and discomfort.” See id., ¶ 419. Additionally, Plaintiff alleges that Defendant C.O. Alexander “confiscated a pair of sneakers from Plaintiff' despite Alexander being informed of Plaintiff's “medical order for [o]rthopedic [f]ootwear.” See id. at 43-44, ¶¶ 427-431. These are the same allegations that Plaintiff made in his original complaint. See Compl. at 52, ¶¶ 1-4, 6-8, 11, 14-18.
First, Plaintiff's allegations fail to satisfy the objective prong of the deliberate-indifference standard because the complaint does not allege facts demonstrating that Plaintiff suffered from a sufficiently serious medical condition. Although Plaintiff states that he suffers from arthritis and hallux limitus and that those conditions caused him “serious pain,” Am. Compl. at 42, ¶¶ 413-16, Plaintiff does not include any factual allegations explaining the seriousness of the condition, the kind of pain suffered, the length of time that he suffered pain, or how the pain affected his daily activities. Nor has plaintiff alleged any facts explaining how the deprivation of orthopedic footwear caused a worsening of his foot condition, beyond a conclusory statement that the footwear provided by the prison can “aggravate, worsen, and create medical foot problems.” Id. at 43, ¶¶ 418-19. The case law overwhelmingly holds that “prisoner complaints about . . . foot problems do not establish the objective prong of the deliberate indifference standard.” See Brown v. DeFrank, No. 06-CV-2235 (AJP), 2006 WL 3313821, at *21 (S.D.N.Y. Nov. 15, 2006) (finding bunions are not sufficiently serious to establish a claim for deliberate indifference); see also Hernandez v. Goord, 02-CV-1704, 2006 WL 2109432, at *1, 5-6 (S.D.N.Y. July 28, 2006) (reasoning that plaintiff's injured left foot, diagnosed as hammertoe, was not severe enough to establish deliberate-indifference claim); Veloz v. New York, 35 F.Supp.2d 305, 312 (S.D.N.Y. 1999) (finding plaintiff's fracture, bone cyst and degenerative arthritis in feet were not “sufficiently serious” medical conditions).
Moreover, Plaintiff's allegation that he was denied orthopedic footwear and forced to wear institutional footwear is also insufficient to satisfy the objective prong of the deliberate-indifference standard because Plaintiff has not alleged a sufficiently serious foot condition. See Reid v. City of New York, No. 20-CV-644, 2021 WL 3477243, at *11 (S.D.N.Y. Aug. 6, 2021), report and recommendation adopted, 2021 WL 4177756 (S.D.N.Y. Sept. 14, 2021); see also McGann v. Coombe, No. 96-CV-576 (SJ), 1997 WL 88719, at *1 (E.D.N.Y. Feb. 19, 1997) (concluding that failure to provide Plaintiff with special shoes, despite a podiatrist's medical order diagnosing Plaintiff with arthritis and gout, did not state a claim for deliberate indifference to a medical need because complaint did not allege “the presence of a serious medical need”); Jones v. Ng, No. 14-CV-1350, 2015 WL 998467, at *7 (S.D.N.Y. Mar. 5, 2015) (finding plaintiff failed to establish that the deprivation of his orthopedic footwear was sufficiently serious to satisfy the objective prong of a deliberate-indifference claim); Stevens v. City of New York, 12-CV-3808, 2013 WL 81327, at *3 (S.D.N.Y. Jan. 8, 2013) (“[P]ain and other problems resulting from [inmates] being forced to wear institutional footwear are not sufficiently serious to satisfy [the objective] prong” of the deliberate-indifference standard.); Williams v. Dep't of Corr., 11-CV-1515, 2011 WL 3962596, at *4 (S.D.N.Y. Sept 7, 2011) (finding institutional footwear that caused “extreme” leg and foot pain was not a constitutional violation); see also Hammonds v. Richards, No. S90-122 (RLM), 1992 WL 86059, at *8 (N.D. Ind. Jan. 17, 1992) (finding diagnosis of hallux limitus did not rise to the level of a serious medical need).
In any case, even if Plaintiff had alleged a sufficiently serious medical condition, Plaintiff has not alleged facts sufficient to satisfy the subjective prong of the deliberate-indifference standard. To establish a claim for deliberate indifference under the Fourteenth Amendment, a pretrial detainee “must prove that the defendant-official acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety.” Darnell, 849 F.3d at 35. A claim under the Eighth Amendment imposes a stricter standard, requiring that the defendant actually knew of a condition that posed an excessive risk to the health or safety of the inmate. Farmer, 511 U.S. at 837. Plaintiff's Amended Complaint does not include any additional facts from which to infer that any individual defendant, aside from Alexander, knew or should have known about his foot condition. See Order at 12-13. Moreover, as to Defendant Alexander, Plaintiff's meager allegation that Alexander was informed of Plaintiff's medical order for orthopedic footwear but nonetheless confiscated Plaintiff's personal footwear, Am. Compl. at 43, ¶ 427, is insufficient to show how Alexander would have known that Plaintiff's foot condition was serious and that the denial of special footwear posed an excessive risk of harm to Plaintiff's health. See Perkins v. Schriro, 11-CV-814, 2012 WL 5909892 at *2 (S.D.N.Y. Nov. 21, 2012) (finding corrections officer did not act in a sufficiently culpable manner when he confiscated plaintiff's footwear without specific knowledge of the gravity of plaintiff's condition); see also Patterson, 2017 WL 1194489, at *7.
In sum, Plaintiff's allegations concerning his foot conditions and the denial of orthopedic footwear are insufficient, as a matter of law, to state a deliberate-indifference claim under either the Fourteenth or Eighth Amendments.
2. Sciatica and Appropriate Bedding
Turning to Plaintiff's allegations concerning his sciatica, in his original complaint Plaintiff alleged that he informed the Rikers Island medical department that he suffers from sciatica, that it is a “very painful” condition, that the mattresses provided by the DOC “aggravated” his condition, and that his request for “appropriate bedding” was denied. Compl. at 55, ¶ 1-3. Plaintiff realleged those same allegations in his Amended Complaint, see Am Compl. at 46, ¶ 460-62, 467, and added that the mattresses are “torn with the insulation exposed” causing him “sleep deprivation” and “rashes,” id. at 47, ¶ 466. These allegations are insufficient to plead a § 1983 claim.
Of course, whether back pain such as sciatica presents an objectively serious medical need depends upon the circumstances of the particular case presented. Williams v. Smith, 2009 WL 2431948, at *8 (S.D.N.Y. Aug. 10, 2009). In that regard, courts consider whether the condition “significantly affects an individual's daily activities, and whether it causes chronic and substantial pain.” Id.; see also Chance, 143 F.3d at 702 (concluding that allegation by prisoner that he was in “great pain” for “at least six months” was sufficient, at pleading stage, to plead that his dental condition was sufficiently serious to satisfy objective prong). Here, Plaintiff's threadbare allegation that his sciatica was “very painful,” Am. Compl. at 46, ¶ 460, without any indication as to how long the pain lasted or how the condition affected his daily activities, is insufficient to plead an objectively serious medical need. See Blackson v. City of New York, No. 14-CV-452 (VEC), 2014 WL 6772256, at *4 (S.D.N.Y. Dec. 2, 2014) (plaintiff's general allegations regarding his “nerve condition” and that he experienced “back pain[ ]” failed to allege sufficient facts to establish that he suffered from a serious medical condition because he did not provide “more specific allegations as to the duration, severity and detrimental impact of the conditions”); Flemming v. Wright, No. 9:11-CV-804 (NAM) (TWD), 2013 WL 4804493, at *10 (N.D.N.Y. Sept. 9, 2013) (general allegations of back pain are insufficient to state a claim for deliberate indifference).
Nor has Plaintiff alleged facts from which one could reasonably infer that the denial of “appropriate bedding” caused a worsening of his sciatica or back pain or that his condition even required a non-standard bed. Plaintiff, for instance, does not allege that he was obtaining physical therapy or medication for the treatment of his sciatica-allegations that would help to show that Plaintiff's condition was objectively serious. Cf White v. Schriro, No. 16-CV-6769 (PAE) (JCF), 2017 WL 3268202, at *4 (S.D.N.Y. July 31, 2017), report and recommendation adopted, 2018 WL 1384506 (S.D.N.Y. Mar. 16, 2018) (objective prong satisfied by allegations in complaint that plaintiff was prescribed medication for pain caused by sciatica and was receiving physical therapy for that condition); Abreu v. Schriro, No. 14-CV-6418, 2016 WL 3647958, at *3 (S.D.N.Y. July 1, 2016) (same). Instead, Plaintiff has only a wholly conclusory allegation that “the mattress given out by the NYCDOC aggravated [his] [s]ciatic condition.” Am. Compl. at 46, ¶ 462. Plaintiff's naked assertion that he suffered pain, a rash, and “sleep deprivation,” id. at 47, ¶ 466, as a result of an inadequate bed or mattress, even liberally construed, is insufficient to raise a plausible claim of a constitutional violation. See Patterson, 2017 WL 1194489, at *6 (dismissing claim alleging that plaintiff's mattress “cause[d] extreme hip, back, and leg pain” because “[t]hese naked assertions fail to provide the factual detail necessary to allege plausibly that [Plaintiff] suffered the injuries as a result of the bed”) (citation and internal quotation marks omitted); Davis v. McCready, 283 F.Supp.3d 108, 116 (S.D.N.Y. 2017) (dismissing deliberate-indifference claim based on failure to provide therapeutic mattress because plaintiff did not allege how resulting back pain posed excessive risk to his health and safety); Lewal v. Wiley, 29 Fed.Appx. 26, 29 (2d Cir. Jan.4, 2002) (summary order) (affirming dismissal of a deliberate-indifference claim based on allegations that the defendants refused to treat the plaintiff for a persistent rash because plaintiff had not alleged the existence of a serious medical condition); Purdie v. City of New York, 10-CV-5802, 2011 WL 1044133, at * 3 (S.D.N.Y. Mar. 15, 2011) (“A skin rash is generally insufficient to meet the objective requirement of a sufficiently grave and serious condition giving rise to a deliberate indifference [to serious medical needs] claim.”); see also Walker, 717 F.3d 119, 125 (2d Cir. 2013) (“[T]he Constitution does not require ‘comfortable' prison conditions”) (quoting Rhodes, 452 U.S. at 349).
Plaintiff has also failed to plead facts to satisfy the subjective prong of the deliberate-indifference standard. The Amended Complaint alleges no facts concerning any defendant's knowledge of Plaintiff's sciatica condition or back pain-it only states that “NYC, NYDOC, Comm. Brann, John/Jane Does refused to provide Plaintiff with a mattress to accommodate his medical conditions.” Am. Compl. at 47, ¶ 467. Plaintiff's original Complaint similarly lacked factual details regarding any defendant's knowledge. See Compl. at 55, ¶ 1-3. In short, Plaintiff has not alleged any facts in the Amended Complaint from which to infer that any individual Defendant knew or should have known that Plaintiff's sciatica or denial of appropriate bedding posed a serious or unreasonable risk to Plaintiff's health or safety. See Order at 12-13. Accordingly, Plaintiff has failed to allege facts to support the objective and subjective prongs of the deliberate-indifference standard for this claim.
3. Foot surgery & Access to a Podiatrist and Neurologist
Plaintiff also alleges that he was denied surgery for his foot condition and access to certain doctors. More specifically, Plaintiff alleges that he was informed by a doctor at OBCC that surgery for one of his foot conditions (hallux limitus) was denied because it was considered “elective surgery” by the DOC, even though the condition caused Plaintiff “extreme pain.” Compare Am. Compl. at 46, ¶¶ 456-57, with Compl. at 55, ¶¶ 1-2. Plaintiff also alleges that he was not provided “appointments to see a [n]eurologist and [p]odiatrist” despite scheduling appointments with those specialists. Compare Am. Compl. at 47, ¶¶ 468-69, with Compl. at 56, ¶¶ 7-8.
To determine whether allegations of inadequate medical care are sufficient under the objective prong, a court must decide “first, if the prisoner was actually deprived of adequate medical care and, second, whether the inadequacy in medical care is sufficiently serious.” Howard v. City of New York, No. 12-CIV-4069 (PAE) (JCF), 2012 WL 7050623, at *6 (S.D.N.Y. Dec. 20, 2012), report and recommendation adopted as modified, 2013 WL 504164 (S.D.N.Y. Feb. 11, 2013) (internal quotation marks omitted). The deprivation must be sufficiently serious “such that the medical condition might have produced death, degeneration, or extreme pain.” Mena v. City of New York, No. 13-CV-2430, 2014 WL 4652570, at *6 (S.D.N.Y. Sept. 18, 2014) (internal quotation marks omitted). In determining the seriousness of a medical condition in relation to a claim alleging inadequate medical care, district courts in this Circuit consider:
(1) the “existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment”; (2) “the presence of a medical condition that significantly affects an individual's daily activities”; (3) “the existence of chronic and substantial pain”; and (4) “adverse medical effects or demonstrable physical injury.”Ferguson v. Cai, No. 11-CV-6181, 2012 WL 2865474, at *3 (S.D.N.Y. July 12, 2012) (quoting Chance, 143 F.3d at 702, and Smith v. Carpenter, 316 F.3d 178, 187 (2d Cir. 2003)).
First, Plaintiff asserts that he was denied an appointment with a neurologist, but he does not explain why he needed an appointment with a neurologist. Plaintiff's Amended Complaint does not include any allegations concerning a medical condition that he was suffering from that would have required treatment from a neurologist. Thus, there are no allegations from which to infer that the denial of an appointment with a neurologist created an unreasonable risk of serious damage to Plaintiff's health. Plaintiff also makes a bare allegation that he was denied an appointment with a podiatrist. But here, too, Plaintiff does not provide any explanation for why the denial of an appointment with a podiatrist created an unreasonable risk of serious damage to his health.
Similarly, Plaintiff's allegations concerning the denial of surgery are bare and do not establish that he suffered from a sufficiently pressing and serious medical need that warranted immediate surgery. For instance, Plaintiff does not allege that his foot condition was life threatening. See Pagan v. Corr. Med. Servs., No. 11-CV-1357 (ER), 2013 WL 5425587, at *13 (S.D.N.Y. Sept. 27, 2013) (finding Plaintiff failed to satisfy the objective prong because surgery on his knee was considered “elective,” and the condition was not “life threatening” or “fast- degenerating”). And to the extent Plaintiff states that his foot condition was “degenerative” and caused him “extreme pain,” Plaintiff's allegations are conclusory. Plaintiff does not include any facts describing the frequency or duration of the pain or any effects from the denial or delay in obtaining surgery for his foot condition. See, e.g., Patterson, 2017 WL 1194489, at *6 (deliberate-indifference claim based on denial of insulin was not sufficiently pled where plaintiff did not allege sufficient facts explaining how the delay in treatment impacted him); Morgan v. Shivers, No. 14-CV-7921 (GHW), 2018 WL 618451, at *8 (S.D.N.Y. Jan. 29, 2018) (“Where temporary delays or interruptions in the provision of medical treatment have been found to satisfy the objective seriousness requirement in [the Second] Circuit, they have involved either a needlessly prolonged period of delay, or a delay which caused extreme pain or exacerbated a serious illness.”); Feliciano v. Anderson, No. 15-CV-4106 (LTS) (JLC), 2017 WL 1189747, at *11 (S.D.N.Y. Mar. 30, 2017) (“Although a delay in providing necessary medical care may in some cases constitute deliberate indifference, [the Second Circuit] has reserved such a classification for cases in which, for example, officials deliberately delayed care as a form of punishment; ignored a ‘life-threatening and fast-degenerating' condition for three days; or delayed major surgery for over two years.”) (citation omitted). Additionally, as already discussed, Plaintiff's allegations about his foot conditions do not demonstrate that he was suffering from a sufficiently serious medical condition for which he was denied medical care. See Dinkins v. New York, 2020 WL 5659554, at *8 (S.D.N.Y. Sept. 23, 2020) (in assessing whether allegations involving inadequacy in medical care satisfied objective prong, courts examine whether the inmate's medical condition was sufficiently serious).
Finally, as it pertains to this claim, Plaintiff has also failed to plead facts to satisfy the subjective prong of the deliberate-indifference standard. Plaintiff's Amended Complaint does not allege any facts concerning any defendant's knowledge of his conditions in connection with his denial of surgery for his foot or the denial of appointments with health specialists. Instead, Plaintiff only asserts that he submitted administrative grievances, but there are no allegations that any of the individual defendants would have known about such grievances. Am. Compl. at 4647, ¶¶ 456-58, 468-70. The allegations are thus insufficient to show that any individual Defendant knew or should have known that denial of foot surgery, or denial of an appointment with a podiatrist or neurologist, posed a serious or unreasonable risk to Plaintiff's health or safety. See Order at 12-13; see also Davis, 2016 WL 796847, at *4 (granting motion to dismiss in part because plaintiff failed to allege that defendants “were ever aware of that the appointments with [plaintiff] were scheduled . . . or that they prevented the appointments from taking place” and thus did not have a sufficiently culpable state of mind).
Accordingly, Plaintiff has also failed to allege facts to support the objective and subjective prongs of the deliberate-indifference standard for this claim.
B. Failure to Protect
In his Amended Complaint, Plaintiff alleges three incidents between himself and other inmates. First, Plaintiff alleges that he and inmate Jason Quiles-“an inmate on the Mental Health Roster” who was prescribed medication-were involved in an altercation on November 2, 2019. Am. Compl. at 14, ¶¶ 80-81. Plaintiff alleges that Quiles was allowed to “remain in open and overcrowded dormitory” housing, despite “numerous referrals” for a mental-health evaluation, “creating a substantial risk of harm to Plaintiff and others.” Id. at 14, ¶ 84. Plaintiff further claims that prison officials engaged in “intentional and willful misreporting of violent incidents,” creating an “atypical and significant violent prison condition.” Id. at 15, ¶¶ 90-91. Second, Plaintiff states that he was “violently assaulted” by inmate Jean Jeffrey on January 4, 2020. Id. at 15, ¶ 94. Plaintiff alleges that Jeffrey had a “propensity for violent outbursts” and had “several verbal confrontations” with correction officers. Id. at 15, ¶¶ 95-96. Plaintiff states that Defendants “failed to appropriately respond to” Jeffrey “acting out violently” and “allowed him to remain in open dormitory area callously disregarding inmate” safety. Id. at 15, ¶ 96. Finally, Plaintiff alleges that on December 14, 2018, he was assaulted by inmate Aaron Williams-“an inmate on the Mental Health Roster” who had been “prescribed psychotropic medication.” Id. at 13, ¶¶ 73-74.
Plaintiff raised all of these allegations in his original complaint, which the Court found were insufficient to state a § 1983 claim. See Order at 14. Plaintiff has not supplemented his allegations with additional facts. Compare Compl. at 16-18, ¶¶ 5-7, 13-18, 22-27, with Am. Compl. at 13-15, ¶¶ 73-74, 80-84, 90-96. These alleged assaults may have occurred after Plaintiff was convicted and while he was awaiting transfer to state custody to serve his sentence, which would mean that Plaintiff's claims are examined under the Eighth Amendment. See Order at 13-14; Defs.' Br. at 10; Helling v. McKinney, 509 U.S. 25, 31 (1993). However, if Plaintiff remained a pre-trial detainee at the time of the assaults, the claims would be examined under the Fourteenth Amendment. Darnell, 849 F.3d at 29; Taylor v. City of New York, No. 16-CV-7857 (NRB), 2018 WL 1737626, at *12 (S.D.N.Y. Mar. 27, 2018) (“Although Darnell involved a Fourteenth Amendment challenge to a prisoner's conditions of confinement, its holding applies with equal measure to failure to protect claims.”). Thus, the Court will examine Plaintiff's failure-to-protect claims under both the Eighth and Fourteenth Amendments.
Under the Eighth and Fourteenth Amendments, correction officials must take reasonable measures to ensure the safety of prisoners, including protecting them against violence by other prisoners. Farmer, 511 U.S. at 834; Winters v. Smalls, No. 1:19-CV-7272 (CM), 2019 WL 3889857, at *1 (S.D.N.Y. Aug. 19, 2019); Parris v. New York State Dep't Corr. Servs., 947 F.Supp.2d 354, 362 (S.D.N.Y. 2013). Although prison officials have a duty to protect prisoners from violence at the hands of other prisoners, not every injury “suffered by one prisoner at the hands of another translates to constitutional liability for prison officials responsible for the victim's safety.” Farmer, 511 U.S. at 834. Instead, the failure to protect an inmate violates the Constitution when correction officials exhibit “deliberate indifference to a substantial risk of serious harm” to the prisoner. Id. at 828 (internal quotation marks omitted); Morales v. New York State Dep't of Corr., 842 F.2d 27, 30 (2d Cir. 1988); Winters, 2019 WL 3889857, at *1. To state a claim for deliberate indifference based on a theory of failure-to-protect under the Eighth Amendment, a plaintiff must allege that prison officials were subjectively aware of an excessive risk to inmate health or safety and disregarded that risk. Farmer, 511 U.S. at 837; Zimmerman v. Macomber, No. 95-CV-0882, 2001 WL 946383, at *5 (S.D.N.Y. Aug. 21, 2001). A pretrial detainee, however, “may prevail in a [Fourteenth Amendment] claim for deliberate indifference even when a state actor merely should have known of the serious risk.” Winters, 2019 WL 3889857, at *2 (emphasis in original).
Importantly, “[c]ourts routinely deny deliberate indifference claims based upon surprise attacks.” Parris, 947 F.Supp.2d at 363 (citation omitted). For an Eighth Amendment Claim, a plaintiff must generally allege “that the defendants knew of a prior altercation between the plaintiff and his attacker, or of threats that had been made against the plaintiff.” Id. (citation omitted). Similarly, for a Fourteenth Amendment claim, a substantial risk of serious harm “can be demonstrated where there is evidence of a previous altercation between a plaintiff and an attacker, coupled with a complaint by a plaintiff regarding the altercation or a request by [a] plaintiff to be separated from the attacker.” Scott v. Westchester Cnty., 434 F.Supp. 3D 188, 198 (S.D.N.Y. 2020) (citation and internal quotation marks omitted). “A plaintiff can sufficiently plead a failure-to-protect claim ‘when [the] inmate inform[ed] corrections officers about a specific fear of assault and [was] then assaulted.'” Scott, 434 F.Supp.3d at 199 (citation omitted). Furthermore, in order to state a claim for deliberate indifference based on a failure-to-protect against a general risk of harm to all inmates at the facility, a plaintiff must allege that the defendants knew, or should have known, of a history of prior inmate-on-inmate attacks similar to the one suffered by the plaintiff, and that the measures they should have taken in response to such prior attacks would have prevented the attack on the plaintiff or mitigated the risk of harm. See Parris, 947 F.Supp.2d at 363-64 (citing Coronado v. Goord, No. 99-CV-1674, 2000 WL 1372834, at *6 (S.D.N.Y. Sept. 25, 2000)); Winters, 2019 WL 3889857, at *2.
Plaintiff has made no allegations that any particular Defendant knew, or should have known, of any specific or direct threat made against Plaintiff by Williams, Quiles, Jeffrey, or any other inmate. Nor does the Amended Complaint contain any allegations that any defendant knew, or should have known, that Williams, Quiles, or Jeffrey had a history of similar assaults against Plaintiff or other inmates. Finally, there are no allegations that Plaintiff was previously attacked by these inmates. Instead, Plaintiff has bare allegations that Williams, Quiles, and Jeffrey had violent propensities and mental health referrals. Because Plaintiff has alleged no facts suggesting that any of the individual Defendants were, or should have been, aware of a particular risk to his safety or to a general risk of harm to all inmates posed by Williams, Quiles, or Jeffrey, Plaintiff has failed to state a claim that any individual Defendant had a sufficiently culpable state of mind under the Eighth or Fourteenth Amendment standard and was deliberately indifferent in failing to protect him from these attacks. See Parris, 947 F.Supp.2d at 363 (finding plaintiff failed to state a claim that defendants were deliberately indifferent in failing to protect him because “the Complaint d[id] not allege that the defendants knew of any threats made against the plaintiff or that the plaintiff had been involved in any prior altercations” and “alleged no facts suggesting that any of the defendants knew of a particular risk to the plaintiff's safety”); Fernandez v. New York City Dep't of Corr., No. 08-CV-4294 (KMW), 2010 WL 1222017, at *4 (S.D.N.Y. Mar. 29, 2010) (complaint did not plead that “[plaintiff] and [inmate] were involved in a prior altercation, that [inmate] had previously threatened [plaintiff], or that there was any other reason for officers at DOC to be on notice that there was a risk of altercation between plaintiff and [inmate],” and thus the “facts” did not “support a finding of constitutional liability”); Coronado, 2000 WL 1372834, at *5-6 (dismissing claim alleging failure to protect because plaintiff failed to plead that defendants “actually knew of a substantial risk of serious harm” to plaintiff or that he was “vulnerable to attack”); Winters, 2019 WL 3889857, at *3 (S.D.N.Y. Aug. 19, 2019) (dismissing failure-to-protect claim where Plaintiff did not “show that Defendants knew that another inmate posed a serious risk of harm to Plaintiff and were deliberately indifferent to that risk, or that Defendants should have known of such a risk.”); Jean v. AMKC C95 Intake, No. 18-CV-3294 (CM), 2018 WL 10408875, at *2 (S.D.N.Y. May 15, 2018) (dismissing failure-to-protect claim because plaintiff failed to “set forth any facts showing that a correctional officer knew or should have known, before the attack occurred, of a substantial risk of serious harm that the other inmates posed to Plaintiff, or that any correctional officer acted recklessly in failing to reduce or eliminate the risk of harm”).
In sum, Plaintiff has failed to state an Eighth or Fourteenth Amendment violation on a failure-to-protect theory.
C. Retaliation and Discrimination
1. Retaliation
Plaintiff claims that he was fired from his job in the prison's law library in retaliation for having filed grievances against Defendants Cruz and Usher. Am. Compl. at 26-27, ¶¶ 229-45. Plaintiff filed an “informal grievance” against Cruz and Usher on or about June 6, 2019, and submitted a “formal Administrative Grievance” against Cruz on or about June 7, 2019. Id. at 26, ¶¶ 229-236. Plaintiff filed these grievances against Cruz because she was verbally abusive, groped him, and behaved in a “sexually derogatory” manner towards him, and because Cruz refused “to comply with his request for information and legal services.” Id. at 24, 26-27, ¶¶ 20309, 229, 237-40. Plaintiff filed a grievance against Usher because Usher observed Cruz's conduct and did not intervene on Plaintiff's behalf. Id. at 26, ¶¶ 229-31, 237-40. According to Plaintiff, on or about June 7, 2019, Usher “specifically” informed Plaintiff that he was terminated from his law library job because “[Plaintiff] filed grievances against [Usher] and [Cruz], and because Cruz “felt uncomfortable” with Plaintiff working in the law library “after filing administrative grievances against her.” Id. at 26, ¶¶ 237-38. On or about June 8, 2019, Plaintiff “submitted another grievance concerning the retaliatory work assignment termination.” Id. at 27, ¶ 245. In addition, Plaintiff claims that he was transferred to OBCC on June 18, 2019, in “temporal proximity to the filing of administrative grievances,” in retaliation for filing the grievances, and to “deter him” from filing grievances. Id. at 28, 31, ¶¶ 261, 287. As a result of the “retaliatory transfer,” Plaintiff claims that he lost his job assignment and wages, and also lost “adequate legal access.” Id. at 31, ¶¶ 288-90. Except for his allegation of “temporal proximity” between the filing of his grievances and transfer, id. at 28, ¶ 261, Plaintiff's allegations in his amended complaint are the same as those in his original complaint. Compare id. at 24-31, ¶¶ 203-09, 229 40, 261, 287-90, with Compl. at 29-36, ¶¶ 109-114, 137, 145-48, 170, 183, 198-99.
To allege a First Amendment retaliation claim, a prisoner must show “(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.” Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (quoting Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)). Filing a grievance is protected First Amendment activity. Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996). To constitute an adverse action, retaliatory conduct must be conduct that “would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights . . . Otherwise, the retaliatory act is simply de minimis and therefore outside the ambit of constitutional protection.” Dawes, 239 F.3d at 492-93 (citations omitted). A plaintiff must allege that his actions were protected by the Constitution, and that such “conduct was a substantial or motivating factor for the adverse actions taken by prison officials.” Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003). Thus, “[t]he causal connection must be sufficient to support the inference ‘that the speech played a substantial part' [in the adverse action].” Diesel v. Town of Lewisboro, 232 F.3d 92, 108 (2d Cir. 2000) (quoting Ezekwo v. NYC Health & Hosps. Corp., 940 F.2d 775, 780-91 (2d Cir. 1991)). A plaintiff can establish a causal connection giving rise to an inference of retaliation, for example, by showing that the protected activity was “very close” in time to the adverse action. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (citation omitted).
A prisoner's claims of retaliation must be examined with particular care, however, because they are “‘prone to abuse' since prisoners can claim retaliation for every decision they dislike.” Graham, 89 F.3d at 79 (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)). Courts have “insisted on a higher level of detail in pleading [retaliation claims] and have held that ‘a complaint which alleges retaliation in wholly conclusory terms may safely be dismissed on the pleadings alone.'” Gill, 824 F.2d at194-95 (quoting Flaherty, 713 F.2d at 13). To survive a motion to dismiss, a plaintiff alleging retaliation must support his claim with “specific and detailed factual allegations, not stated in wholly conclusory terms.” Blalock v. Jacobsen, No. 13-CV-8332 (JMF), 2014 WL 5324326, at *6 (S.D.N.Y. Oct. 20, 2014) (citing Friedl v. City of New York, 210 F.3d 79, 85-86 (2d Cir. 2000) (internal quotation marks omitted)); Harrison v. Traylor, No. 17-CV-6678 (NSR), 2022 WL 580773, at *4 (S.D.N.Y. Feb. 25, 2022); Anderson v. Lapolt, No. 07-CV-1184, 2009 WL 3232418, at *5 (N.D.N.Y. Oct. 1, 2009).
Here, there is no doubt that Plaintiff's filing of grievances qualifies as protected activity for First Amendment purposes. Bilal v. White, 494 Fed.Appx. 143, 146-47 (2d Cir. 2012); Graham, 89 F.3d at 80. Plaintiff also alleges that he filed grievances on or about June 6-7, 2019, he was terminated from his law library job on or about June 7, 2019, and Defendants Usher told Plaintiff that same day that he was terminated from his job because he had filed the grievances against Usher and Cruz, which made Cruz feel “uncomfortable.” Because the Court is obligated to construe pro se complaints liberally, the close temporal proximity between Plaintiff's termination and his filing of grievances, coupled with Plaintiff's allegation about Usher's statement, suffice to demonstrate that Plaintiff's grievances played a “substantial part” in his termination. Plaintiff has thus pled sufficient facts to state a First Amendment retaliation claim based on his termination from his law library job.
On the other hand, Plaintiff's allegation that his transfer to OBCC was taken in retaliation for the filing of grievances is supported solely by conclusory assertions, lacking factual support to properly plead a causal connection and establish a sufficiently plausible claim. See Gill, 824 F.2d at 194 (affirming dismissal of claim that unrequested changes in plaintiff's work assignment was retaliatory because plaintiff “conclusorily allege[d] that the job transfers were intended to punish and harass him.”); Dawes, 239 F.3d at 493 (affirming dismissal of retaliation claim because plaintiff alleged in “conclusory terms that the references to him [by correctional officers] as an ‘informant' and a ‘rat'. . . opened him up to assault from his fellow inmates”); Crenshaw v. Hartman, 681 F.Supp.2d 412, 416 (W.D.N.Y. 2010) (dismissing allegation that defendants wrote a false misbehavior report against plaintiff in response to a grievance plaintiff filed against one of the defendants because “plaintiff's conclusory assertion that [the conduct] was retaliatory in nature fails to state a plausible claim”). For example, Plaintiff includes no factual allegations from which to infer that his filing of grievances played a “substantial” part in his transfer to OBCC. See Harrison, 2022 WL 580773, at *4 (dismissing retaliation claim because allegations did not establish that protected activity was “substantial or motivating factor in the prison officials' actions”) (citations and internal quotation marks omitted). Nor do Plaintiff's allegations establish a “clear causal chain” between his filing of grievances and his transfer to OBCC. Plaintiff does not include factual allegations showing that Cruz, a legal coordinator, or Usher, a corrections officer, had any role in determining the transfer of inmates between facilities. Instead, Plaintiff's allegations suggest that his transfer to OBCC was due to the fact that he was no longer a pretrial detainee, but, rather, a convicted prisoner. See Order at 17, n.7 (citing Roseboro v. Gillespie, 791 F.Supp.2d 353, 373 (S.D.N.Y. 2011) (holding that plaintiff could not prevail on retaliation claim if “even absent the retaliatory motivation, the plaintiff would have received the same punishment”)). Thus, Plaintiff has failed to state a First Amendment retaliation claim with respect to his allegations concerning his transfer to OBCC.
In sum, although Plaintiff has not alleged sufficient facts to adequately plead a First Amendment retaliation claim based on his transfer to OBCC, he has alleged sufficient facts to plead a First Amendment retaliation claim, as against Defendants Cruz and Usher, based on the loss of his law library job.
2. Discrimination
Plaintiff also claims that he was not given a job at OBCC because of his race, in violation of the Equal Protection Clause. See Am. Compl. at 41-42, ¶¶ 398-412. More specifically, Plaintiff claims that Defendants Grima, Smalls, and Hicks “would not grant Plaintiff a variance” to work in the prison library “based on his Race/Ethnicity, e.g., White Hispanic,” even though other “similarly-situated African American inmates were given [a] variance to work” in the law library. Id. at 41, ¶¶ 399-400. These are the same allegations that Plaintiff raised in his original complaint; he included no new allegations in his amended complaint. Compare Compl. 50-51, ¶¶ 1-6, 13-16, with Am. Compl. at 41-42, ¶¶ 398-409.
“[P]risoners are protected under the Equal Protection Clause of the Fourteenth Amendment from invidious discrimination based on race.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (citation omitted). “The Equal Protection Clause requires that the government treat all similarly situated people alike.” Harlen Assocs. v. Inc. Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (citation omitted). To plead a facially valid Equal Protection claim, a plaintiff must allege: “(1) that he [or she] has been treated differently from similarly-situated inmates, and (2) that the discrimination is based upon a constitutionally impermissible basis, such as race.” Gilliam v. Baez, No. 15-CV-6631 (KMK), 2017 WL 476733, at *7 (S.D.N.Y. Feb. 2, 2017) (citation omitted); see also Phillips v. Girdich, 408 F.3d 124, 129-30 (2d Cir. 2005). Further, because neither a state nor a state official in his official capacity is a “person” within the meaning of § 1983, see Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989), an Equal Protection Clause violation under § 1983 requires personal involvement by a defendant, and plaintiff “must plead . . . that the defendant acted with discriminatory purpose,” Iqbal, 556 U.S. at 676; Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995) (noting that evidence of “purposeful discrimination” is required to establish an Equal Protection violation).
Plaintiff generally claims that his applications to work in the OBCC law library were rejected because he is Hispanic, and that similarly situated African American inmates were provided variances to work in the law library. Am. Compl. at 41, ¶¶ 398-403. But prisoners have no right or protected interest, constitutional or otherwise, in any particular job assignment. Gill, 824 F.2d at 194; see also Anderson, 2009 WL 3232418, at *11. Inmates can be assigned jobs, and removed from them, for virtually any reason, provided that such decisions are not based on the inmate's race or religion. Bussey v. Phillips, 419 F.Supp.2d 569, 589 (S.D.N.Y. 2006). And Plaintiff has not asserted any facts supporting an inference that any individual Defendant acted with a specific discriminatory intent when refusing to provide Plaintiff a job in the OBCC law library. See, e.g., Giordano v. City of New York, 274 F.3d 740, 743 (2d Cir. 2001) (“We affirm [dismissal of § 1983 claims] because [Plaintiff] did not in any event introduce evidence to show that defendants intentionally treated [him] differently from others similarly situated.”) (internal quotation marks omitted) (emphasis in original); Manley v. Thomas, 255 F.Supp.2d 263, 268 (S.D.N.Y. 2003) (denying the inmate's discrimination claim because there was no evidence that the plaintiff was subjected to “intentional disparate treatment”) (internal quotation marks omitted); Crenshaw, 681 F.Supp.2d at 415 (denying equal protection claim because Plaintiff “allege[d] in conclusory fashion that he was removed from [his job assignment] on account of his race . . . [and] allege[d] no facts in support of that assertion”). Plaintiff has thus failed to state an Equal Protection Clause claim.
D. Procedural Due Process
Plaintiff also raises a claim pertaining to the imposition of infractions arising from the three assaults involving Williams, Quiles, and Jeffrey. Am. Compl. at 13-15, ¶¶ 73, 75-77, 82, 97-99. Plaintiff's Amended Complaint states that following an assault by Williams, Plaintiff “was given a Report of Notice of infraction for fighting and assault,” and never received a hearing or the opportunity to appeal “because the infraction was dismissed . . . on the basis of self-defense.” Id. at 13-14, ¶¶ 73, 75-77. Plaintiff further claims that following his altercation with Quiles, he was provided a hearing, and was subsequently issued a disciplinary sanction and “reprimanded.” Id. at 14, ¶ 82. Plaintiff “appealed the sanction,” but never received a response. Id. at ¶ 88. Finally, akin to his allegations concerning the incident with Williams, Plaintiff claims that after being assaulted by Jeffrey, he received a “Notice of Report of Infraction . . . misrepresenting the fact [that] he was violently assaulted” by Jeffrey, but the infraction was dismissed because he was found to have “acted in self-defense.” Id. at 15, ¶¶ 97-99. Plaintiff claims that an administrative appeal was unavailable “due to the disciplinary report being dismissed.” Id. at 15, ¶ 100. These are the same allegations that Plaintiff raised in his original complaint. Compare Compl. at 16-18, with Am. Compl. at 13-15. Plaintiff does not state that he is alleging a violation of his procedural due process rights, but given his allegations concerning the denial of an administrative appeal for his infractions, the Court construes Plaintiff to be raising such a claim.
Although prison inmates necessarily have their liberty severely curtailed while incarcerated, they are nevertheless entitled to certain procedural protections when disciplinary actions subject them to further liberty deprivations such as loss of good-time credit or special confinement that imposes an atypical hardship. See Wolff, 418 U.S. at 555-56. “In a § 1983 suit brought to enforce procedural due process rights, a court must determine (1) whether a [liberty or] property interest is implicated, and, if it is, (2) what process is due before the plaintiff may be deprived of that interest.” Nnebe v. Daus, 644 F.3d 147, 158 (2d Cir. 2011). The threshold question for a due process claim “is always whether the plaintiff has a property or liberty interest protected by the Constitution.” Perry v. McDonald, 280 F.3d 159, 173 (2d Cir. 2001) (quoting Narumanchi v. Bd. of Trs. of the Conn. State Univ., 850 F.2d 70, 72 (2d Cir. 1988)). For prison disciplinary proceedings where a liberty or property interest is implicated, an inmate is entitled “to advance written notice of the charges against him; a hearing affording him a reasonable opportunity to call witnesses and present documentary evidence; a fair and impartial hearing officer; and a written statement of the disposition, including the evidence relied upon and the reasons for the disciplinary actions taken.” Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004) (citing Wolff, 418 U.S. at 563-67). Convicted prisoners do not have a liberty interest in a disciplinary hearing unless the punishment subjects them to “atypical and significant hardship . . . in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).
None of Plaintiff's claims implicate a liberty or property interest, let alone one that amounts to atypical and significant hardship. In these circumstances, liberty interests protected by the Due Process Clause “will generally be limited to freedom from restraint.” Sandin, 515 U.S. at 483-84. Following the altercations with Williams and Jeffrey, the infractions Plaintiff received were dismissed in his favor on a finding that he acted in self-defense. Am. Compl. at 14-15, ¶¶ 76-77, 99-100. Plaintiff's own allegations establish that he did not suffer any adverse consequences (and certainly no atypical and significant hardship). Plaintiff has thus not alleged that he suffered the deprivation of any protected liberty or property interest.
Moreover, with respect to the altercation with Quiles, Plaintiff received a hearing where he was given an opportunity to defend his actions. Although he was “reprimanded for th[e] altercation,” Am. Compl. at 14, ¶ 82, Plaintiff was provided an opportunity to appeal the sanction, id. at 14, ¶ 88. Plaintiff thus received both notice and a hearing for the infraction stemming from the altercation with Quiles. Id. at 14, ¶ 82. Additionally, Plaintiff has not alleged any facts from which to infer that the “reprimand” he received deprived him of a liberty interest. Plaintiff does not specify how he was reprimanded or explain the nature of the punishment he received. Without additional factual support, Plaintiff has not sufficiently plead enough to allege an unconstitutional deprivation of any liberty or property interest. See Flood v. Cappelli, No. 18-CV-3897 (KMK), 2019 WL 3778736, at *10 (S.D.N.Y. Aug. 12, 2019) (dismissing procedural due process claim in part because plaintiff did not allege any factual details suggesting he was deprived of a liberty interest); see also Samuels v. Davis, No. 14-CV-7204, 2015 WL 4653238, at *2 (S.D.N.Y. July 28, 2015) (dismissing due process claim where “the complaint does not allege any facts about the conditions [of disciplinary confinement], including whether they were atypical or unusually harsh”); Landron v. City of New York, No. 14-CV-1046, 2014 WL 6433313, at *5 (S.D.N.Y. Nov. 7, 2014) (same).
E. Sexual Abuse
Plaintiff alleges that Defendant Cruz was verbally abusive, groped him, and behaved in a “sexually derogatory” manner towards him. Am. Compl at 24-27, ¶¶ 203-09. Specifically, Plaintiff alleges that Cruz (1) persistently made offensive comments to him, see id. at 19, 24, ¶¶ 136, 202-06, 309, and (2) “grabbed” and “fondled” Plaintiff's “private parts,” causing Plaintiff “an erection” and Cruz to “beg[in] laughing,” see id. at 24, ¶¶ 206-07. Plaintiff claims that Cruz derived “sexual gratification by demeaning, emasculating and sexually teasing” Plaintiff, and that Cruz had “ha[d] no legitimate reason to search and/or touch [P]laintiff because she [was] not a correction officer.” Id. at 19, 24, ¶¶ 137, 208-09. Judge Engelmayer concluded that Plaintiff had alleged sufficient facts to support this claim. See Order at 11, n.4, 27-28. The Order directed Plaintiff to re-allege this claim in the Amended Complaint, “and provide any additional facts.” Id. at 11, n.4. Although Plaintiff did not supplement the Amended Complaint with additional factual detail, compare Compl. at 29-31, with Am. Compl at 24-26, Plaintiff's allegations are sufficient to state a claim under the Eighth and Fourteenth Amendments.
These comments include, for instance: (1) that Plaintiff “should have joined the circle jerk,” Am. Compl. at 19, ¶ 136; (2) “You're moody like a woman on her menstruation,” Am. Compl. at 24, ¶ 204; (3) “You act like you have a vagina,” id.; (4) “You're fat and obese and should not eat,” id.
“Because sexual abuse by a corrections officer may constitute serious harm inflicted by an officer with a sufficiently culpable state of mind, allegations of such abuse are cognizable as Eighth Amendment claims.” Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997). To state an Eighth Amendment claim arising from sexual abuse, a prisoner “must allege that the defendant acted with a subjectively ‘sufficiently culpable state of mind,'” and that the “conduct was objectively ‘harmful enough' or ‘sufficiently serious' to reach constitutional dimensions.” Crawford v. Cuomo, 796 F.3d 252, 256 (2d Cir. 2015) (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)). “A corrections officer's intentional contact with an inmate's genitalia or other intimate area, which serves no penological purpose and is undertaken with the intent to gratify the officer's sexual desire or humiliate the inmate, violates the Eighth Amendment.” Id. at 257. With regards to physical sexual assault, “the principal inquiry is whether the contact” with an inmate's genitalia or other intimate area “is incidental to legitimate official duties, such as a justifiable pat frisk or strip search, or by contrast whether it is undertaken to arouse or gratify the officer or humiliate the inmate.” Id. at 257-58 (citing Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). “[A] single incident of sexual abuse” can violate the Eighth Amendment “if sufficiently severe or serious.” Id. (citing Boddie, 105 F.3d at 861). Additionally, in the absence of an inference that the prison official's alleged conduct served a legitimate penological or law enforcement purpose, “the abuse itself may, in some circumstances, be sufficient evidence of a culpable state of mind.” Boddie, 105 F.3d at 861. To allege a constitutional violation, “an inmate need not allege that there was penetration, physical injury, or direct contact with uncovered genitalia.” Id. at 257.
Generally, protections under the Fourteenth Amendment for pretrial detainees are “at least as great as the Eighth Amendment protections available to a convicted prisoner.” Darnell, 849 F.3d at 29. However, “it is presently unclear whether both [the objective and subjective] prongs required for Eighth Amendment sexual abuse claims are also required for claims of ‘sexual abuse under the Fourteenth Amendment.'” Lewis v. Huebner, No. 17-CV-8101 (KMK), 2020 WL 1244254, at *9 (S.D.N.Y. Mar. 16, 2020) (quoting Gilliam v. Black, No. 18-CV-1740, 2019 WL 3716545, at *10 (D. Conn. Aug. 7, 2019)); see also Holland v. City of New York, 197 F.Supp.3d 529, 546 (S.D.N.Y. 2016). As courts have recognized, the standard announced by the United States Supreme Court in Kingsley v. Hendrickson-for excessive force claims brought by pretrial detainees-may also apply to claims of sexual abuse by pretrial detainees. Gilliam, 2019 WL 3716545, at *10. Under that standard, “a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable.” Kingley v. Hendrickson, 576 U.S. 389, 396-97. Here, Plaintiff's allegations are sufficient to plead a claim under either the Eighth or Fourteenth Amendment standards because, as discussed below, he describes intentional sexual contact of his genitalia that served no penological purpose.
Accepting the facts alleged in the complaint as true, Cruz “grabbed” and “fondled” Plaintiff's genitalia, causing him an “erection.” Am. Compl. at 24, ¶¶ 206-07. Upon seeing the erection, Cruz “began laughing.” Id. Even if Cruz were a corrections officer (and Plaintiff alleges that she was not) conducting a search of Plaintiff, there would be no legitimate penological justification for her having grabbed and fondled Plaintiff's genitalia. See Crawford, 796 F.3d at 257-58 (finding that inmate stated an Eighth Amendment claim where he alleged that defendant “fondl[ed] and squeeze[ed] [the plaintiffs] penis in order to make sure [he] did not have an erection”). Moreover, the type of intentional conduct alleged in the Amended Complaint and Plaintiff's allegation that Cruz began laughing upon seeing Plaintiff's erection suggest that Cruz was intending to humiliate Plaintiff, arouse herself, or both. See id. at 258-59 (noting that “demeaning comments, including the statements . . . and subsequent taunts . . . suggest[ed] that [the defendant] under took the search in order to arouse himself, humiliate [the plaintiff], or both”).
At this stage, Plaintiff's allegations of sexual abuse plausibly give rise to an Eighth or Fourteenth Amendment violation, depending on whether Plaintiff was a pretrial detainee or convicted prisoner at the time of the alleged abuse. I thus recommend that Plaintiff be permitted to proceed with this claim. Plaintiff, however, should be allowed to amend his complaint to provide facts from which to determine whether he was a pretrial detainee or convicted prisoner at the time of the alleged sexual abuse by Defendant Cruz.
F. Monell Claims Against the City
Plaintiff also asserts claims against the City under a theory of municipal liability with respect to most of the allegations described above, including those regarding (1) deliberate indifference, Am. Compl. at 46-47, ¶¶ 457, 467; (2) failure to protect, id. at 15, ¶¶ 91, 98; (3) retaliation, id. at 2, 4, 31, ¶¶ 4, 18, 286; and (4) procedural due process, id. at 4, 14-15, ¶¶ 21, 89, 93. As an initial matter, these claims for municipal liability necessarily fail, because Plaintiff has not adequately alleged a constitutional violation by an individual defendant. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986); MacFall v. City of Rochester, 495 Fed.Appx. 158, 161 (2d Cir. 2011) (“Given that plaintiffs failed to adequately allege an underlying constitutional violation, the district court did not err in dismissing their claim for municipal liability.”); Segal v. City of New York, 459 F.3d 207, 219-20 (2d Cir. 2006) (holding that district court need not reach issue of municipal liability where underlying constitutional claims were dismissed); Muhammad v. Cohen, No. 13-CV-1422 (KBF), 2015 WL 1973330, at *12 (S.D.N.Y. May 1, 2015) (finding that because “plaintiff has not adequately alleged a constitutional violation . . . there is thus no basis for municipal liability”); Rankel v. Town of Somers, 999 F.Supp.2d 527, 550 (S.D.N.Y. 2014) (“Absent an underlying constitutional violation, a Monell claim cannot lie.”).
To the extent Plaintiff does assert a Monell claim against the City, it is based solely on the alleged retaliatory transfer to OBCC; Plaintiff does not assert a Monell claim against the City stemming from the loss of his law library job. See Am. Compl. at 2, 4, 31, ¶¶ 4, 18, 286.
In any event, even if Plaintiff had alleged an underlying constitutional violation, Plaintiff has not sufficiently alleged the existence of a municipal policy, custom, or practice that caused the violation of his constitutional rights. See Jones, 691 F.3d at 74, 80; see also Anderson v. Townsend, 21-CV-03569 (LAK), 2021 WL 5359681, at *8 (S.D.N.Y. 2021). For instance, Plaintiff alleges that (1) the City's refusal to provide him appropriate bedding was “due to the Municipal Policy of not allowing medical accommodations for serious medical needs of inmates,” Am. Compl. at 47, ¶ 467; (2) the City's refusal to provide “elective surgery” was part of “a Municipal Policy” of “deliberate indifference” to serious medical needs, id. at 46, ¶ 457; (3) the City had a “practice and pattern” of allowing “intentional misreporting” of disciplinary infractions by prison officials, in “disregard” for inmate safety, id. at 15, ¶¶ 91, 98; (4) the City's “Municipal Policy” allowed “retaliatory transfers to dismiss complaints against staff,” id. at 2, 4, 31 ¶¶ 4, 18, 286; and (5) the City had a “practice and pattern” that covered up “the violence at Riker's Island” by allowing prison officials “to manipulate the grievance procedures to prevent the exhaustion of administrative remedies,” id. at 4, 14-15, ¶¶ 21, 89. But for each of those allegations, Plaintiff does not include any factual support for his conclusory assertion that the City had a practice or policy, or a connection between the alleged policy and a violation of Plaintiff's constitutional rights. See Dilworth v. Goldberg, No. 10-CV-2224 (RJH) (GWG), 2011 WL 3501869, at *25-26 (S.D.N.Y. July 28, 2011). Nor, for instance, are there any allegations regarding what specific actions by City employees were known to a policymaker at NYCDOC or the City and ignored. Id.
Finally, although Plaintiff has sufficiently pled a sexual-abuse claim as against Defendant Cruz, Plaintiff does not include factual allegations in his Amended Complaint from which to infer that Cruz was acting pursuant to a policy, custom, or practice imposed by the City. Instead, Plaintiff has pled a conclusory assertion that the “refusal to document any allegation of sexual abuse committed by staff is a widespread, pervasive customary practice of NYDOC prison officials.” See Am. Compl. at 34, ¶ 331; see also id. at 4, 34-35, ¶¶ 27, 332. But Plaintiff does not plead any facts demonstrating that a policymaker or official at the City was aware of Cruz's sexual abuse and deliberately ignored the conduct. See Dilworth, 2011 WL 3501869, at *25 (failing to state a Monell claim where complaint contained no allegations “regarding what specific actions were known to a policymaker” and ignored by the municipal official).
Accordingly, I recommend that any § 1983 claims that Plaintiff asserts against the City also be dismissed for failure to state a claim.
G. Further Leave to Amend is Unwarranted as to Defendants City and Roth
District courts generally should grant a pro se plaintiff an opportunity to amend a complaint to cure its defects unless amendment would be futile. See Hill, 657 F.3d at 123-24; Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). 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)) (emphasis added). Nevertheless, leave to amend is properly denied where all indications are that the pro se plaintiff will be unable to state a valid claim. See Valle v. Police Dep't Cnty. of Suffolk Cent. Records, No. 10-CV-2847, 2010 WL 3958432, at *2 (E.D.N.Y. Oct. 7, 2010); see also Cuoco, 222 F.3d at 112 (explaining that repleading is futile where the problem with the claim “is substantive [and] better pleading will not cure it”).
Here, Plaintiff has already been afforded one opportunity to amend his complaint. The Court provided Plaintiff with instructions as to what factual allegations were necessary to support each of his claims. Plaintiff subsequently filed an amended complaint that re-pled virtually identical claims, with no additional factual support. Given Plaintiff's inability to provide additional factual support for his claims, the Court thus concludes that it would be futile to grant Plaintiff yet another opportunity to amend his complaint as to Defendants City and Roth. See, e.g., Ward v. City of Middletown, No. 17-CV-5248 (NSR), 2022 WL 562949, at *8 (S.D.N.Y. Feb. 24, 2022); Bussey, 419 F.Supp.2d at 589; see also Dietrich v. Bauer, 76 F.Supp.2d 312, 351 (S.D.N.Y. 1999) (“[W]here a plaintiff is on notice of deficiencies in an initial pleading and has had the opportunity to cure them by a first amendment, dismissal with prejudice is proper when a complaint previously has been amended.”) (citation and internal quotation marks omitted).
CONCLUSION
For the foregoing reasons, the Court respectfully recommends that the City and Roth's Motion to Dismiss be GRANTED. Plaintiff has not stated plausible § 1983 claims against Defendants City and Roth with respect to allegations of deliberate indifference (both to medical needs and based on a failure to protect), retaliatory transfer, discrimination, and procedural due process. As previously noted, supra n.1, the Court does not recommend sua sponte dismissal of the Amended Complaint as against the remaining Defendants who have not yet been served.
NOTICE
Plaintiff shall have fourteen days, and Defendant 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 fourteen 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 Judge Paul A. Engelmayer at the United States Courthouse, 500 Pearl Street, 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 Engelmayer. 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).