Slip Opinion
S.D.N.Y.2019Background
- Plaintiff Joseph V. Flood, a convicted inmate at Orange County Jail, sued Officers J. Cappelli and Carl E. DuBois under 42 U.S.C. § 1983 for an alleged sexual assault during a pat-frisk on April 1, 2018, and for subsequent retaliation after filing grievances.
- Flood alleges Cappelli ‘‘swiped’’ his hand between Flood’s buttocks during a frisk, made a suggestive comment, and that other officers were present. Flood reported the incident via the jail’s PREA process and filed grievances and appeals.
- Flood alleges he was confined to his cell for approximately six days and that Sergeant Zepplin imposed confinement after Flood told a mental-health counselor he feared being alone with Cappelli; Flood views this as retaliatory.
- DuBois is sued as the sheriff/supervisor but Flood concedes DuBois had no direct involvement; Flood seeks to hold him responsible in a supervisory capacity.
- Defendants moved to dismiss under Rule 12(b)(6) arguing (inter alia) lack of personal involvement as to DuBois, failure to state Eighth, Fourth, First, and Fourteenth Amendment claims, failure to exhaust administrative remedies, and qualified immunity.
- The Court granted the motion to dismiss without prejudice, dismissed all claims against DuBois, and gave Flood 30 days to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Personal involvement of Sheriff DuBois | DuBois is liable as the sheriff/supervisor responsible for employees | DuBois had no direct involvement; supervisory liability alone is insufficient | Dismissed for failure to plausibly allege DuBois’s personal involvement |
| Eighth Amendment — sexual assault | Cappelli’s touching during pat-frisk was sexual assault violating Eighth Amendment | Allegations insufficient to show subjective intent to arouse or humiliate; isolated contact + comment are conclusory | Dismissed: plaintiff failed to plausibly allege officer acted to gratify or humiliate, so no Eighth Amendment violation alleged |
| First Amendment — retaliation for filing grievance | Six-day cell confinement and Zepplin’s actions were retaliation for filing PREA grievance | Confinement was not causally connected to grievance; lacking temporal specifics and any link between grievance recipients and those who confined him | Dismissed for failure to plead causal connection (dates, link between actors) despite confinement qualifying as adverse action |
| Fourth/Fourteenth Amendment — unreasonable search / procedural due process | Pat-frisk was unreasonable/invasive; confinement implicated due process | Fourth: no facts showing search unreasonable or unrelated to penological need; Fourteenth: six days’ confinement lacks detail to show atypical/ significant hardship or procedural defects | Both claims dismissed: Fourth Amendment claim lacks facts showing unreasonableness; due process claim fails for absence of facts showing a protected liberty interest or defects in process |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must state a plausible claim)
- Ashcroft v. Iqbal, 556 U.S. 662 (individual liability under § 1983 requires personal involvement)
- Darnell v. Pineiro, 849 F.3d 17 (2d Cir.) (Eighth Amendment — sexual contact may violate Eighth when for gratification or to humiliate)
- Crawford v. Cuomo, 796 F.3d 252 (2d Cir.) (two-part Eighth Amendment test: subjective intent and objective severity)
- Hudson v. McMillian, 503 U.S. 1 (Eighth Amendment excessive force/conditions standard)
- Grullon v. City of New Haven, 720 F.3d 133 (2d Cir.) (standards for pleading a defendant’s personal involvement in § 1983 suits)
- Boddie v. Schnieder, 105 F.3d 857 (2d Cir.) (no Eighth Amendment violation from certain sexually charged misconduct absent intent to gratify or humiliate)
- Gill v. Pidlypchak, 389 F.3d 379 (2d Cir.) (keeplock/segregation can be adverse action for retaliation claims)
- Palmer v. Richards, 364 F.3d 60 (2d Cir.) (due process: atypical and significant hardship test; consider duration and conditions of confinement)