236 F. Supp. 3d 590
E.D.N.Y.2017Background
- Perez, a pro se pretrial detainee, sued DOC Commissioner Joseph Ponte and Nassau County official Michael Sposato under 42 U.S.C. § 1983 for events while detained (transfers, searches, alleged sexual touching, assaults by officers and other inmates).
- Relevant incidents: July 2015 transfer Rikers→Nassau County Corr. Center (NCCC); Sept. 15, 2015 pat-frisk (Officer Foley alleged to have touched plaintiff); Sept. 29, 2015 refusal to strip → chemical spray/force/strip search; Dec. 26 and Jan. 6 inmate attacks (serious facial laceration); April 7, 2016 return to Rikers and segregation; April 14, 2016 transfer to Rockland County jail.
- Perez alleged supervisory/Monell theories against Ponte and Sposato (policy/custom of transfers outside NYC; failure to protect/supervise) and sought to add several individual defendants in an amended complaint.
- Defendants moved to dismiss under Rule 12(b)(6) for failure to state claims (including arguments about lack of personal involvement and qualified immunity); court considered pro se filings liberally and the PLRA exhaustion defense.
- Magistrate Judge recommended dismissal of the complaint as to Ponte and Sposato for insufficient allegations of personal involvement, granted limited leave to amend to (a) add Chief Turhan Gumusdere and two John Doe officers and (b) proceed on due-process claim based on the Rikers→Rockland transfer and the failure-to-protect claim; other claims (sexual assault, strip-search, excessive-force, municipal Monell claim) were recommended dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to exhaust PLRA remedies | Perez says he filed many grievances and reported to Internal Affairs and county DA; grievances were ignored/no response | Defendants argue plaintiff did not plead exhaustion and did not follow grievance steps | Dismissal for non‑exhaustion inappropriate at 12(b)(6); facts ambiguous and plaintiff alleges initiation of grievance process — exhaustion not apparent from complaint |
| Supervisory liability (Ponte, Sposato) | Claims that DOC policy/custom allowed punitive transfers and supervisors failed to address complaints or supervise subordinates | Defendants: no personal involvement; conclusory Monell-style allegations insufficient | Dismissed as to Ponte and Sposato for failure to plead personal involvement or facts plausibly linking supervisors to violations; leave to amend denied as to them |
| Transfer from Rikers→Rockland (Due Process / retaliation) | Perez contends transfer was punitive/retaliatory (threats from Chief Gumusdere, temporal proximity after complaints) and interfered with counsel access | Defendants: transfers are discretionary; mere transfer does not implicate due process; no facts showing punitive intent | Magistrate found plausible due-process (retaliation) claim as to Chief Gumusdere based on statements + timing; permitted amendment to assert this claim against Gumusdere |
| Sixth Amendment (access to counsel) | Transfers prevented free phone calls and attorney visits; burdened communication | Defendants: (implicit) prison policies and transfer discretion justified restrictions | Dismissed for failure to plead necessary factual detail showing an unreasonable or substantial burden on counsel access |
| Sexual touching during pat-frisk (Officer Foley) | Perez alleges Officer Foley touched between buttocks, smelled fingers and made comment — characterized as sexual assault | Defendants: frisk was incident to a cell search and penological interest in contraband; no intent to humiliate/sexualize | Dismissed: allegations insufficient to show sexual-motivation or objectively serious sexual abuse under Eighth/Fourteenth Amendment standards |
| Excessive force / strip-search claims | Perez alleges sprayed with chemicals, thrown/punched; later stripped and exposed to many people | Defendants: force and strip-searches were for security/discipline; no excessive or punitive conduct alleged | Excessive-force claim dismissed for lack of factual detail (context, officer identity, injuries) and no alleged injury; strip-search claim dismissed as reasonable/related to penological interest; exposure/humiliation alone insufficient |
| Failure-to-protect (attacks by other inmates) | Perez alleges officers witnessed Jan. 6 attack, did not intervene, fled — resulted in severe facial injury requiring plastic surgery | Defendants: (implicit) no deliberate indifference | Allowed to proceed if plaintiff can identify officer defendants (John Doe pleading permitted); factual allegations satisfy objective (serious injury) and subjective (officers watched/fled) standards |
| Monell municipal liability | Perez alleges DOC policy permitted unconstitutional transfers to county jails with more restrictive conditions and that policymakers ratified misconduct | Defendants: policy permissive and facially constitutional; no facts showing ratification by policymakers | Dismissed: policy language is not facially unconstitutional and plaintiff failed to allege that a policymaker ratified unconstitutional application; Monell theory inadequate |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (establishes two‑step plausibility review and rejects conclusory allegations)
- Bell v. Wolfish, 441 U.S. 520 (1979) (pretrial detainees may not be punished; restrictions valid if reasonably related to legitimate objectives)
- Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015) (pretrial detainee excessive-force claims judged by objective standard)
- Farmer v. Brennan, 511 U.S. 825 (1994) (deliberate indifference standard for failure-to-protect claims)
- Monell v. Dept. of Social Servs., 436 U.S. 658 (1978) (municipal liability requires policy, custom, or deliberate indifference by policymakers)
- Jones v. Bock, 549 U.S. 199 (2007) (PLRA exhaustion is an affirmative defense; prisoners need not plead exhaustion)
- Twombly v. Bell Atl. Corp., 550 U.S. 544 (2007) (pleading must state a plausible claim, not mere labels and conclusions)
- Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004) (circumstances that may excuse PLRA exhaustion)
- Boddie v. Schneider, 105 F.3d 857 (2d Cir. 1997) (sexual abuse by corrections officer can violate constitutional rights)
- Covino v. Vermont Dep’t of Corr., 933 F.2d 128 (2d Cir. 1991) (transfer of pretrial detainee does not itself implicate due process)