17 Civ. 3875 (KPF)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
KATHERINE POLK FAILLA, District Judge
KATHERINE POLK FAILLA, District Judge:
Plaintiff Anton Liverpool, proceeding pro se, brings this action under
BACKGROUND1
A. Factual Background
On July 9, 2014, Plaintiff was convicted of a crime under New York State law. (Def. 56.1 ¶ 2). On July 10, 2014, Plaintiff was being detained inside the Main Intake area of OBCC, waiting to be transferred from OBCC to a building for sentenced inmates. (Id. at ¶ 3). During this time, Plaintiff was held in Pen #6 of thе Main Intake area, along with approximately eight other inmates. (Id. at ¶ 5). Three other inmates were being held in Pen #1, which was across the hall from Pen #6. (Id. at ¶¶ 6-7). Both cells had bars facing
At some point during the evening of July 10, 2014, one of Plaintiff‘s fellow inmates in Pen #6, Inmate Brown, began to mix together his feces, saliva, and urine with toilet water, with the intention of throwing it at the three inmates in Pen #1. (Def. 56.1 ¶ 8). One of the correction officers in the Main Intake area saw Brown relieving himself, and asked him something along the lines of Why you doing that? Doesn‘t the toilet work?, but did not otherwise seek to stop him (Id. at ¶ 9).2 Plaintiff implored Brown not to throw the mixture of human waste that he was concocting. (Id. at ¶ 10). Plaintiff then told Defendants Davis, Green, Laraque, and Llarch that Brown was going to throw the mixture and asked that he be let out of Pen #6. (Id. at ¶ 11). The parties agree that Plaintiff did not tell the correction officers specifically that Brown was going to throw the mixture at him, but Plaintiff did tell the officers that he did not want to be in Pen #6 when Brown began throwing his mixture. (Id. at ¶¶ 12-13; Pl. 56.1 ¶ 12). One correction officer spoke to Brown through the bars of Pen #6 and tried to prevent Brown from throwing the mixture. (Def. 56.1 ¶ 14). Brown threatened to throw the mixture at that correction officer if
she did not move away. (Id.). The correction officer departed without taking further action, and no other correction officers took preventative action.
Roughly 20 to 30 minutes after Plaintiff alerted the correction officers to the situation (Manningham Decl., Ex. C at 19:3-16), Brown began throwing the mixture at the three inmates in Pen #1. (Def. 56.1 ¶ 15). The parties agree that, as Brown threw the mixture at the pen across the hallway, it was spraying all over the place and hit Plaintiff as it rebounded off of Pen #6‘s bars. (Id. at ¶ 16). Plaintiff adds that some of the mixture hit Plaintiff as it was thrown, and not merely after it came in contact with the pen‘s bars. (Pl. 56.1 ¶ 16). In retaliation, the inmates in Pen #1 began throwing their own mixtures of human waste at the inmates in Pen #6. (Def. 56.1 ¶ 17; Pl. 56.1 ¶ 17). Plaintiff estimates that other inmates were throwing mixtures of human waste intermittently over the course of approximately one hour. (Manningham Decl., Ex. C at 20:3-19; but cf. Pl. 56.1 ¶ 19 (claiming that only one inmate in Pen #1 was throwing urine/[bodily] waste back to Pen #6). Defendants do not contest this.
As these events unfolded, the correction officers in the Main Intake Area made verbal attempts to stop the inmates from throwing their respective excretory mixtures. (Def. 56.1 ¶ 18). Plaintiff claims that the officers’ words were delivered in a mocking tone, and that they did not sincerely try to stop the misbehavior. (Pl. 56.1 ¶ 18).3 Inmate Brown and the inmates in Pen #1 did
not cоmply. (Def. 56.1 ¶ 19). At some point, Defendant Davis radioed for assistance. (Id.; Pl. 56.1 ¶ 19). Around midnight, a response team, supervised by Defendant
Upon entering the Main Intake area, Defendant Kiste observed feces and water on the floor and walls. (Def. 56.1 ¶ 23). The response team then ordered all the inmates in Pens #1 and #6 to turn their backs to the hallway and face the walls of their pens. (Id. at ¶ 24). The three inmates in Pen #1 initially refused to comply with the orders to turn around, causing Kiste to disperse three one-second bursts of OC spray — a chemical irritant akin to pepper spray — to the facial area of each of those inmates. (Id. at ¶¶ 26, 27). The record indicates that the third one-second burst was administered after the third inmate had complied by facing the wall, and was arguably unwarranted. (Pl. 56.1 ¶ 25; Dkt. #85, Def. 101).4 The parties dispute whether the OC spray was at any point directed into Pen #6, where Plaintiff was being held. (Def. 56.1 ¶ 27; Pl. 56.1 ¶ 27). A video recording of the incident, which the Court has reviewed, suggests that the OC spray was not directed at Pen #6.
(Manningham Decl., Ex. E).5 But an Incident Report Form generated after the incident suggests that OC spray was directed at Brown, who was held in Pen #6. (Dkt. #85, Def. 99). This Incident Report Form suggests the possibility that the video may not have captured the full inсident.
The response team ordered the inmates in Pen #6, including Plaintiff, to lay on the ground. (Def. 56.1 ¶ 28). Plaintiff, who was shirtless, put a white cloth on the floor and laid on top of it, in compliance with the correction officers’ order. (Id. at ¶ 30). The inmates were then handcuffed and escorted out of the Main Intake area, beginning with the inmates held in Pen #1. (Id. at ¶¶ 31, 32). At some point roughly three hours later, Plaintiff was given a medical shower. (Id. at ¶ 35; Pl. 56.1 ¶ 35). At around 3:32 a.m., Plaintiff was seen by a physician‘s assistant in the clinic. (Def. 56.1 ¶ 36). The physician‘s assistant noted that Plaintiff had been exposed to OC spray, but had no visible injuries or signs of chemical irritation or burn. (Id. at ¶ 38). Plaintiff reported feeling throat irritation for about 24 hours after the incident and felt facial burning for three or four days. (Id. at ¶ 39).
B. Procedural Background
Plaintiff filed his Complaint in this action
On November 9, 2017, the New York City Law Department filed a letter identifying Gustavo Kiste as the John Doe defendant in Plaintiff‘s Complaint. (Dkt. #18). Plaintiff filed a First Amended Complaint on February 6, 2018, substituting Defendant Kiste in place of John Doe. (Dkt. #27, 29). Plaintiff filed a Second Amended Complaint on February 13, 2018, adding Defendant Llarch as a defendant for the first time. (Dkt. #31). Plaintiff filed a Third Amended Complaint on March 19, 2018. (Dkt. #39). Defendants answered the Third Amended Complaint on August 29, 2018. (Dkt. #47). On August 21,
2018, the Court granted Defendants leave to file their motion for summary judgment, and set a briefing schedule. (Dkt. #46).
On March 7, 2019, Defendants filed their motion for summary judgment and supporting papers, including a Local Rule 56.1 Statement of Undisputed Facts. (Dkt. #56, 57, 58, 59). On May 22, 2019, Defendants filed a letter, noting that Plaintiff had failed to oppose their motion for summary judgment and requesting that the motion be granted. (Dkt. #65). On May 30, 2019, the Court received a letter from Plaintiff, requesting additional time to oppose Defendants’ motion for summary judgment. (Dkt. #66). The Court granted Plaintiff this extension on May 31, 2019. (Dkt. #67). Plaintiff filed his brief in opposition to Defendants’ motion for summary judgment on June 18, 2019. (Dkt. #69). Defendants filed their reply brief in further support of their motion for summary judgment on July 18, 2019. (Dkt. #74).
On July 24, 2019, the Court received a letter from Plaintiff, requesting leave to file an opposition to Defendants’ Rule 56.1 Statement. (Dkt. #75). The Court granted Plaintiff leave to file a counterstatement on July 31, 2019. (Dkt. #76). Plaintiff filed his Rule 56.1 Counterstatement on September 20, 2019. (Dkt. #79). The Court then granted Plaintiff leave to file exhibits in support of his Rule 56.1 Counterstatement on or before December 15, 2019. (Dkt. #84). The motion became fully briefed when the Court received Plaintiff‘s exhibits in support of his Rule 56.1 Counterstatement on December 27, 2019. (Dkt. #85).
DISCUSSION
A. Applicable Law
1. Motions for Summary Judgment Under Federal Rule of Civil Procedure 56
Under
It is the movant‘s burden to show that no genuine factual dispute exists and a court must resolve all ambiguities and draw all reasonable inferences in the non-movant‘s favor. Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). If the movant has met its burden, its opponent must do more than simply show that there is some metaphysical doubt as to the material facts and, toward that end, must come forward with specific facts showing that there is a genuine issue for trial.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (internal citations and quotation marks omitted). The nonmoving party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment. Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986).
In deciding a motion fоr summary judgment, a district court generally should not weigh evidence or assess the credibility of witnesses. Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 104 (2d Cir. 2011) (quoting Hayes v. N.Y.C Dep‘t of Corr., 84 F.3d 614, 619 (2d Cir. 1996)). But to that general rule, the Second Circuit has recognized an exception:
in the rare circumstance where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete, it will be impossible for a district court to determine whether the jury could reasonably find for the plaintiff, and thus whether there are any genuine issues of material fact, without making some assessment of the plaintiff‘s account.
Jeffreys, 426 F.3d at 554 (internal citation omitted) (quoting Anderson, 477 U.S. at 252). In this rare setting, a court considering a summary judgment motion may make credibility determinations. SEC v. Jankovic, No. 15 Civ. 1248 (KPF), 2017 WL 1067788, at *8 (S.D.N.Y. Mar. 21, 2017). Even then, the Second Circuit has cautioned that, [i]f there is a plausible explanation for discrepancies in a party‘s testimony, the court considering a summary judgment motion should not disregard the later testimony because of an earlier account that was ambiguous, confusing, or simply incomplete. Jeffreys, 426 F.3d at 555 n.2 (emphasis and citation omitted). Instead, such credibility assessments are to be reserved for extraordinary cases, where the facts alleged are so
2. Motions for Summary Judgment in Pro Se Cases
In a pro se case, the court must take an additional step and liberally construe the pro se party‘s pleadings to raise the strongest arguments that they suggest. McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
This task has been complicated by Plaintiff‘s imperfect compliance with Local Rule 56.1. Under that rule, a movant is required to identify admissible evidence in support of each factual assertion in his or her Rule 56.1 statement. See S.D.N.Y. Local Rule 56.1(d) (Each statement by the movant ... pursuant to Rule 56.1(a) ... must be followed by citation to evidence which would be admissible, set forth as required by Fed. R. Civ. P. 56(c).). Conversely, a non-movant seeking to controvert these factual assertions must also cite to admissible evidence, and where properly supported facts in a Local Rule 56.1 statement are denied with only conclusory assertions, the court will find such facts to be true. See id.; id. at 56.1(c) (Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party.). Plaintiff has madе clear which of Defendants’ proffered facts he disputes, but has not identified any admissible evidence in support of his disputes. (See Pl. 56.1).
Pro se litigants are ... not excused from meeting the requirements of Local Rule 56.1. Wali v. One Source Co., 678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009) (citing Vt. Teddy Bear, 373 F.3d at 246). Nevertheless, even where there is incomplete compliance with the Local Rules, a court retains discretion to consider the substance of the plaintiff‘s arguments. Id. (citing Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) ([W]hile a court is not required to consider what the parties fail to point out in their Local Rule 56.1 Statements, it may in its discretion opt to conduct an assiduous review of the record even where one of the parties has failed to file such a statement. (internal quotation marks omitted))); see also Hayes v. Cty. of Sullivan, 853 F. Supp. 2d 400, 406 n.1 (S.D.N.Y. 2012) (In light of Plaintiff‘s pro se status, the Court overlooks his failure to file a Local Rule 56.1 Statement and conducts its own independent review of the record.). To be fair to all parties, the Court will rely principally on its own assiduous review of the record.
B. Analysis
Plaintiff‘s Third Amended Complaint brings two claims against Defendants, each alleging a violation of his Eighth Amendment right to be free from cruel and unusual punishment: (i) Defendants Davis, Green, Laraque, and Llarch failed to satisfy their duty to protect Plaintiff from being assaulted with human waste; and (ii) Defendant Kiste employed excessive force in utilizing the OC spray. Defеndants have moved for summary judgment on both of these claims, on the bases that: (i) the claims against Defendants Kiste and Llarch are untimely; (ii) the failure to protect claim must fail as a matter of law; and
The Court first addresses Defendants’ arguments concerning the timeliness of the claims brought against Defendants Kiste and Llarch. The Court determines that these claims were filed outside the statute of limitations and do not relate back to timely-filed claims, and therefore grants summary judgment as to these defendants. But the Court concludes that there is a genuine dispute of material fact concerning Plaintiff‘s failure to protect claim, brought against Defendants Davis, Green, and Laraque, and denies the motion for summary judgment as to them. Finally, the Court considers, and grants summary judgment in favor of Defendants as to Plaintiff‘s deliberate indifference to medical needs claim.
1. Plaintiff‘s Claims Against Defendants Kiste and Llarch Are Untimely
Defendants argue that Plaintiff‘s claims against Defendants Kiste and Llarch are barred by the statute of limitations. (Def. Br. 5-9).
Generally speaking, plaintiffs are not allowed to circumvent New York‘s three-year statute of limitations by filing a complaint against a John Doe defendant within the three-year window, and then amending the complaint to name the defendant at a later time. Hogan, 738 F.3d at 517 (citing Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1075 (2d Cir. 1993)). As a result, if a plaintiff seeks to amend a complaint to name a John Doe defendant, and the statute of limitations has already run, the plaintiff must show that the amended complaint relates back to the original, timely-filed complaint under
In this case, Plaintiff knew оr had reason to know of the injuries allegedly caused by Defendants at the time those injuries occurred: July 10 and 11, 2014. (See generally TAC). As a result, Plaintiff was required to file any claims that arose out of that incident by July 11, 2017. Plaintiff filed the original Complaint before that date, on May 22, 2017, naming Defendants Davis, Green, Laraque, and a John Doe defendant. (Dkt. #1). But Plaintiff did not manifest an intent to substitute Defendant Kiste in place of the John Doe defendant
a. Federal Rule of Civil Procedure 15(c) Generally
(A) The law that provides the applicable statute of limitations allows relation back;
(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading; or
(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied аnd if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party‘s identity.
For an amended complaint to relate back to an original complaint under
b. Plaintiff‘s Claim Against Defendant Llarch Does Not Relate Back to the Original Complaint
The Second Circuit has interpreted
Here, Plaintiff cannot claim that, but for a mistake of identity, he would have brought claims against Defendant Llarch in the original Complaint. The original Complaint named four defendants: Defendants Davis, Green, Laraque, and a John Doe defendant later named as Defendant Kiste. The Complaint did not make any allegations concerning a misidentified individual who was actually Defendant Llarch. Nor did Plaintiff substitute Defendant Llarch in place of a previously named defendant upon realizing that there had been a mistake of identity.
Instead, Plaintiff named Defendant Llarch as an additional party on February 13, 2018, after the statute of limitations had run. Courts within this District have held that the relаtion-back provision of
The result would be no different if the Court were to apply New York‘s relation-back rules. New York‘s general relation-back statute,
For these reasons, Plaintiff‘s untimely claim against Defendant Llarch does not relate back to his timely original Complaint. Because Plaintiff did not bring his claim against Defendant Llarch until after the statute of limitations had run, Defendants’ motion for summary judgment is granted as to Defendant Llarch.
c. Plaintiff‘s Claim Against Defendant Kiste Does Not Relate Back to the Original Complaint
Nor does Plaintiff‘s claim against Defendant Kiste relate back to the original Complaint. Plaintiff did not know Defendant Kiste‘s identity when he filed the original Complaint — he attributed Kiste‘s actions to a John Doe defendant. And Plaintiff did not learn Defendant Kiste‘s identity until after the statute of limitations had run. (See Dkt. #18, 27). The Second Circuit has held that a lack of knowledge about a defendant‘s identity cannot be characterized as a mistake of identity. Hogan, 738 F.3d at 517-18. As a result,
But the Second Circuit has also held that, pursuant to
reflect that name. See
The Court concludes that Plaintiff did not satisfy the first of these requirements, because he did not exercise due diligence to identify Defendant Kiste before the statute of limitations had run. Plaintiff filed the original Complaint on May 22, 2017, more than two years and ten months after the incident had occurred. This did not allow ample time to obtain a Valentin order (which is routinely issued in this district) in order to identify the [person] he wanted to sue. Sherrad v. City of New York, No. 15 Civ. 7318 (CM), 2016 WL 1574129, at *4 (S.D.N.Y. Apr. 15, 2016). Plaintiff has neither alleged nor argued that he took any steps during that time to identify the individual who had allegedly used excessive force against him, or that he was prevented from filing the suit earlier when a timely Valentin order could have yielded the information he needed well before the cut-off date. Id. at *6; Smith v. Baugh, No. 16 Civ. 906V (F), 2018 WL 1918283, at *3 (W.D.N.Y. Apr. 24, 2018) (collecting cases and holding that a plaintiff‘s failure to more timely initiate a
who seeks relief pursuant to
Nor is there any indication that Plaintiff undertook any effort in the 50 days between the filing of the original Complaint and the running of the statute of limitations on July 11, 2017, to identify the John Doe defendant. To the contrary, the record reflects that Plaintiff treated his case with negligence during this time period: Plaintiff failed to provide the Court with an up-to-date mailing address, causing mailings to Plaintiff to be returned as undeliverable, and prompting the Court to order Plaintiff to show cause why his case should not be dismissed for failure to prosecute. (Dkt. #13).8
2. Plaintiff‘s Failure to Protect Claim Survives Defendants’ Motion for Summary Judgment
With summary judgment having been granted in favor of Defendants Kiste and Llarch, three defendants remain: Defendants Davis, Green, and Laraque (collectively, the “Remaining Defendants“). The Third Amended Complaint is best interpreted as asserting that these three correction officers violated Plaintiff‘s Eighth Amendment rights by failing to protect him from the actions of Inmate Brown, who threw a mixture of his urine, feces, saliva, and toilet water, hitting Plaintiff and inciting an hour-long war of excrement with other inmates in which Plaintiff was collateral damage. The Remaining Defendants argue that their conduct does not, as a matter of law, amount to a failure to protect in violation of Plaintiff‘s Eighth Amendment rights. They claim both that: (i) they did not violate Plaintiff‘s Eighth Amendment rights by failing to protect him; and (ii) even if they did violate Plaintiff‘s Eighth Amendment rights, they are entitled to qualified immunity. For the reasons discussed below, the Court disagrees.
a. Failure to Protect Generally
It is well settled that “[p]rison officials have a duty to ... protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 828 (1994) (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1977)); see also Ross v. Correction Officers John & Jane Does 1-5, 610 F. App‘x 75, 76-77 (2d Cir. 2015) (summary order); Villante v. Dep‘t of Corr., 786 F.2d 516, 522-23 (2d Cir. 1986). In order to state an
Courts apply a two-pronged test to analyze claims brought under the
b. A Triable Issue Exists Concerning Whether the Conditions of Plaintiff‘s Confinement Were Objectively Sufficiently Serious
As the Remaining Defendants acknowledge, there is no static test to determine whether a deprivation is sufficiently serious to meet the objective prong. “[I]nstead, ‘the conditions themselves must be evaluated in light of contemporary standards of decency.‘” Darnell, 849 F.3d at 30 (quoting Blissett v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995)). A plaintiff must show that the deprivation results in a denial of “the minimal civilized measure of life‘s necessities,” Wilson v. Seiter, 501 U.S. 294, 298 (1991) (citation omitted), but nеed not show that he suffered “serious injury” to succeed on an
The objective prong may be satisfied where an inmate is subjected to violent acts at the hands of other inmates. Hendricks v. Coughlin, 942 F.2d 109, 113 (2d Cir. 1991) (holding that “an inmate‘s claim that prison officials failed, as a result of their deliberate indifference, to protect him from the violent actions of other inmates may state a viable
The conditions Plaintiff was forced to endure would seem to exceed contemporary standards of decency. Plaintiff had a
Further, a reasonable juror could conclude that throwing human waste at another person constitutes an act of violence. The New York Penal Law would seem to support this categorization:
Finally, the Court finds that the unsanitary conditions from which the Remaining Defendants allegedly failed to protect Plaintiff would suffice to satisfy the objective prong. The Second Circuit directs courts to evaluate the “severity and duration” of unsanitary conditions on a case-by-case basis when evaluating whether conditions of confinement amount to a constitutional violation, and has rejected a “bright-line durational requirement” or a “minimal level of grotesquerie” requirement for viable unsanitary-conditions claims. Darnell, 849 F.3d at 31 (quoting Willey, 801 F.3d at 68). While “the severity of an exposure may be less quantifiable than its duration, [] its qualitative offense to a prisoner‘s dignity should be given due consideration.” Id.
The Remaining Defendants argue that Plaintiff‘s exposure to waste was not severe enough to meet the objective prong because he was nothing “more than a bystander,” was “splashed with residual bodily waste,” and “was not forced to stay in the cell for very long.” (Def. Br. 11). The Court disagrees with these factual assertions, as well as the legal significance ascribed to them. While Plaintiff was not the intended target of Inmate Brown‘s attack, he ceased to be a mere bystander when Inmate Brown hit him with human waste. Plaintiff was then forced to stay in the cell for roughly one hour, during which time
These conditions are comparable to those present in Fruit v. Norris, 905 F.2d 1147, 1151 (8th Cir. 1990). There, inmates were forced to clean a portion of a prison‘s raw-sewage lift-pump well. Id. at 1148-49. For ten minutes at a time, inmates entered the well, into which a continuous stream of raw sewage was being pumped, without safety equipment. Id. In Willey, the Second Circuit held that the factual scenario presented in Fruit — a ten-minute exposure to a “shower of human excrement without protective clothing and equipment” — was sufficient to state a claim for an
c. A Triable Issue Exists Concerning Whether the Remaining Defendants Had a Sufficiently Culpable State of Mind
The uncontested facts would also permit a reasonable jury to find that the Remaining Defendants acted with deliberate indifference towards Plaintiff in failing to take any action to prevent the debasement to which he was subjected. The parties agree that Plaintiff warned the Remaining Defendants that Inmate Brown was mixing his bodily waste; that Brown planned to throw that waste; and that Plaintiff did not want to be in Pen #6 when the waste was thrown. (Def. 56.1 ¶¶ 11, 13). A correction officer then approached Brown to prevent him from throwing the mixture, and Brown responded by threatening to throw the mixture at the officer. (Def. 56.1 ¶ 14). There is no indication that the Remaining Defendants took any further actions to stop Brown, or to protect Plaintiff.
The Remaining Defendants argue that the subjective prong has not been met for two reasons: (i) they were not aware that the waste was going to be thrown at Plaintiff; and (ii) even if they were, the Remaining Defendants responded reasonably to that risk. (Def. Br. 10-13). The Court disagrees on both counts.
First, the Remaining Defendants argue that they were not deliberately indifferent, because Plaintiff did not specifically advise them that Inmate Brown planned to throw the mixture of human waste at Plaintiff; rather, Plaintiff merely reported that Brown was going to throw the mixture. (Def. Br. 12). The Remaining Defendants claim that, from this generalized report, they “could not have drawn the inference that plaintiff faced an imminent, substantial risk of serious harm,” and could only
To review, the test for deliberate indifference in the context of an
Based on the record before it, and drawing all inferences in favor of Plaintiff, the Court concludes that a reasonable jury could find that the Remaining Defendants were aware of a substantial risk that Plaintiff would be exposed to Inmate Brown‘s bodily waste. See Anderson, 477 U.S. at 248 (holding that a genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party“); see also Hayes v. N.Y.C. Dep‘t of Corr., 84 F.3d 614, 620-21 (2d Cir. 1996) (finding that affirmative inferences in favor of the non-movant are required when deciding motions for summary judgment concerning the subjective deliberate indifference of prison officials). The Remaining Defendants indisputably knew that Brown intended to throw a mixture of his bodily waste from within Pen #6, which he shared with Plaintiff, and that Plaintiff had requested not to be present in the cell when the throwing began. (Def. 56.1 ¶¶ 11, 13). The seriousness of Brown‘s intention was underscored by his threat to throw the waste at the one correction officer who attempted to intercede. (Id. at ¶ 14). From this alone, a jury could find that the risk of Plaintiff being exposed to human waste if he remained in Pen #6 was so obvious that the Remaining Defendants knew of it.
Second, the Remaining Defendants argue that, even if they were aware of the substantial risk Plaintiff faced, they are not liable for any harm suffered because they responded reasonably to that risk. (Def. Br. 11-13). The Remaining Defendants are correct that “prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at 844. But the record does not support the Remaining Defendants’ contention that they undertook reasonable efforts to protect Plaintiff from harm. After learning that Inmate Brown intended to throw the bodily waste that he was accumulating in plain view, a single correction officer tried, verbally, to persuade Brown not to do so. (Def. 56.1 ¶ 14). When this attempt failed, and Brown threatened to throw the waste at the officer, the officer promptly left the scene. (Id.; Manningham Decl., Ex. C at
The “reasonable response” exception to liability for failure to protect has been successfully invoked in situations where officers took steps that were reasonably calculated to resolve the underlying risk to the inmate. See Ford v. Deacon, — F. App‘x —, No. 18-3269, 2019 WL 6271702, at *3 (2d Cir. Nov. 25, 2019) (summary order) (affirming grant of summary judgment against failure to protect claim where inmate filed grievance concerning condition of cell, and officers inspected the cell and repaired any issues found); see also El-Hanafi v. United States, No. 13 Civ. 2072 (GHW), 2015 WL 72804, at *17-18 (S.D.N.Y. Jan. 6, 2015) (finding prison medical official not liable for failing to diagnose an inmate‘s illness when the official ordered medical testing for the inmate to assist in diagnosing). Here, the Remaining Defendants were aware that the officer‘s attempt to stop Inmate Brown had failed and yet made no other efforts to respond to the risk Brown‘s conduct created. Even after the incident began, and inmates were throwing bodily waste around the cells, the Remaining Defendants did not take any action to restore order, other than a verbal attempt — the sincerity of which is contested — to stop the inmates. By the time a response team arrived, the incident had been ongoing for roughly an hour and the harm to Plaintiff had already occurred. (Manningham Decl., Ex. C at 20:3-19; Def. 56.1 ¶¶ 19, 20, 22). A jury could easily reject the Remaining Defendants’ argument that this conduct was reasonably calculated to prevent the risk of harm to Plaintiff.
The Court concludes that Plaintiff has put forth evidence that would permit a reasonable jury to find that the Remaining Defendants were subjectively deliberately indifferent to the risk Plaintiff faced. Thus, a triable issue exists concerning the second prong of the
d. The Remaining Defendants Are Not Entitled to Qualified Immunity at This Stage of the Proceedings
Finally, the Remaining Defendants argue that, even if they violated Plaintiff‘s
The Court has already concluded that a rational jury could find that the Remaining Defendants violated Plaintiff‘s
At the time of the incident, inmates such as Plaintiff had a clearly established right to be protected from “violence at the hands of other prisoners.” Farmer, 511 U.S. at 828. Further, inmates had a clearly established right to “humane conditions of confinement,” with prison officials providing “reasonable measures to guarantee the safety of inmates.” Id. at 832. The Remaining Defendants argue, however, that these rules are defined at too high a level of generality to have clearly established that their conduct would violate the law. (Def. Br. 14). Specifically, the Remaining Defendants note that there are no “Second Circuit cases which say there is a duty to protect inmates from being near other inmates who are throwing feces or urine.” (Id.).
And while the Remaining Defendants are correct on this narrow point, there is Second Circuit case law cleаrly establishing that prison officials “spraying an inmate with vinegar, excrement, and machine oil” violates the
Such a body of relevant case law exists here. The facts and ruling of Hogan, read in conjunction with black-letter law providing that “prison officials may not abuse prisoners directly, nor may they indirectly subject prisoners to harm by facilitating abuse at the hands of prisoners’ fellow inmates,” Randle v. Alexander, 960 F. Supp. 2d 457, 471 (S.D.N.Y. 2013) (collecting Second Circuit case law), places it beyond debate that a prison official cannot permit one inmate to spray another inmate with human waste. See also Francis v. City of New York, No. 17 Civ. 1453 (LAK) (HBP), 2018 WL 4659478, at *4 (S.D.N.Y. Aug. 21, 2018) (“Courts have found that, when an inmate informs corrections officers about a specific fear of assault and is then assaulted, this is sufficient to proceed on a claim of failure to protect.” (quoting Beckles v. Bennett, No. 05 Civ. 2000 (JSR), 2008 WL 821827 at *17 (S.D.N.Y. Mar. 26, 2008))). Because a reasonable jury could find that the Remaining Defendants were aware of a substantial risk that Plaintiff would be exposed to repeated sprays of bodily waste over the course of an hour, that jury could find that the Remaining Defendants violated a clearly established right in failing to protect Plaintiff.12
A second body of case law forecloses qualified immunity in this case: the
conditions of confinement. See Gaston v. Coughlin, 249 F.3d 156, 164-66 (2d Cir. 2001). Whether this right has been violated through exposure to human waste “depends on both the duration and the severity of the exposure.” Willey, 801 F.3d at 68 (collecting intra- and inter-Circuit case law that predates July 2014). In Fruit, a 1990 decision cited in Willey, the Eighth Circuit held that a reasonable jury could find that the
Typically, only decisions by the Supreme Court or the Second Circuit suffice to “clearly establish” that conduct is unlawful within this Circuit. See Lynch v. Ackley, 811 F.3d 569, 578-79 (2d Cir. 2016); but see id. at 579 n.9. But the Second Circuit has recognized that law may be clearly established by decisions from other circuits, if those decisions “clearly foreshadow a particular ruling on the issue.” Terebesi v. Torreso, 764 F.3d 217, 231 (2d Cir. 2014). Willey‘s reliance on Fruit, and the two Circuits’ identical analyses of conditions of confinement claims, makes clear that Fruit foreshadowed the Second Circuit‘s own ruling on the issue. Willey, 801 F.3d at 68. More fundamentally, Fruit reflects that the “contours of the right in question [were] clearly established” when Fruit was decided in 1990: exposing an inmate to a shower of human waste, even for a short period of time, violates the
3. Summary Judgment Is Granted As to Plaintiff‘s Deliberate Indifference to Medical Needs Claim
Plaintiff‘s brief in opposition to Defendants’ motion for summary judgment contains a few sentences that appear to assert a claim for deliberate indifference to medical needs in violation of the
Defendants argue that the operative Complaint does not include any allegations that would suggest that it assеrted a claim for deliberate indifference to medical needs. (Def. Reply 6-7). The Court agrees. The Third Amended Complaint merely alleges that Plaintiff was given an eye wash and a medical shower; it does not contain any information about how long Plaintiff waited to have this treatment provided, nor does it include any suggestion that Plaintiff believed the delay in treatment or treatment itself was unreasonable. (See generally TAC). Because Plaintiff‘s deliberate indifference to medical needs claim is not present in the operative complaint, the Court need not consider it. See King v. Puershner, No. 17 Civ. 1373 (KMK), 2019 WL 4519692, at *10 (S.D.N.Y. Sept. 19, 2019) (finding that “[i]t is well settled that a [pro se] litigant may not raise new claims not contained in the complaint in opposition to a motion for summary judgment” (quoting Mediavilla v. City of New York, 259 F. Supp. 3d 82, 106 (S.D.N.Y. 2016))); Mira v. Argus Media, No. 15 Civ. 9990 (RJS), 2017 WL 1184302, at *3 n.4 (S.D.N.Y. Mar. 29, 2017) (“Although district courts sometimes consider new factual allegations made in a pro se plaintiff‘s opposition briefs where they are consistent with those in the complaint ... they do not consider entirely new claims.“); Carby v. Holder, No. 11 Civ. 5775 (DLC), 2013 WL 3481722, at *7 (S.D.N.Y. July 10, 2013) (“Discovery has concluded, and [plaintiff] has made no request to amend her complaint to include this claim. It is generally inappropriate for a [pro se] plaintiff to raise new claims for the first time in opposition to a motion for summary judgment.“).
Thаt being said, the Court takes notice of the fact that Plaintiff‘s original Complaint (Dkt. #1), First Amended Complaint (Dkt. # 29), and Second Amended Complaint (Dkt. #31), do contain some allegations about the amount of time that Plaintiff was forced to wait for medical treatment after he was removed from Pen
Even if the Court were to consider Plaintiff‘s deliberate indifference to medical needs claim and read the allegations in Plaintiff‘s opposition brief and 56.1 Counterstatement as amending the Third Amended Complaint, the claim would fail. “[I]n cases where a prisoner alleges ‘a temporary delay or interruption in the provision of otherwise adequate medical treatment, it is appropriate to focus on the challenged delay or interruption in treatment rather than the prisoner‘s underlying medical condition alone.‘” Benjamin v. Pillai, — F. App‘x —, 2019 WL 5783304, at *2 (2d Cir. Nov. 6, 2019) (summary order) (quoting Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003)). Moreover, “the seriousness of a delay in medical treatment may be decided ‘by reference to the effect of delay in treatment. Consequently [,] delay in medical treatment must be interpreted in the context of the seriousness of the medical need, deciding whether the delay worsened the medical condition, and considering the reason for delay.‘” Smith, 316 F.3d at 186 (alterations and emphasis omitted) (quoting Hill v. Dekalb Reg‘l Youth Det. Ctr., 40 F.3d 1176, 1188 (11th Cir. 1994)). Here, Plaintiff has alleged that he was forced to wait three hours to receive medical attention after being exposed to human waste and OC spray. (Pl. Opp. 7). He has not alleged that the delay in treatmеnt caused his condition to worsen. Nor has he challenged the reasonableness of the medical treatment that he eventually received. And the reason that Plaintiff has identified for the delay in treatment is, at worst, benign: Defendants were providing medical treatment to each affected inmate in turn, starting with the inmates who suffered the worst injuries, including the inmates who were directly targeted with the OC spray. (Pl. Opp. 7; Pl. 56.1 ¶ 35). These allegations would not support a plausible claim for deliberate indifference to medical needs. See Bilal v. White, 494 F. App‘x 143, 145-146 (2d Cir. 2012) (summary order) (holding that allegations of “temporary delay or interruption in the provision of otherwise adequate medical treatment” lasting “only a few hours” did not, without more, support a viable
For the reasons set forth above, Defendants’ motion for summary judgment is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to Defendants Kiste and Llarch. The motion is DENIED as to Defendants Davis, Green, and Laraque. The Clerk of Court is directed to terminate the motion at docket entry 56. The Clerk of Court is directed to terminate Defendants Llarch and Kiste from this proceeding.
In order address potential next steps in this matter, the parties are hereby ORDERED to appear for a telephonic conference in this matter on March 23, 2020, at 2:00 p.m., in Courtroom 618 of the Thurgoоd Marshall Courthouse, 40 Foley Square, New York, New York 10007.
At the appointed date and time for the conference, the Warden or other official in charge of the Intake Center shall produce prisoner Anton F. Liverpool, Identification No. 155581, at a suitable location within the Intake Center equipped with a telephone, for the purpose of participating by telephone in the conference with the Court and defense counsel in the above referenced matter. At the appointed time, the parties shall call (888) 363-4749 and enter access code 6624801. Please note, the phone conference line will not be available prior to 2:00 p.m. Counsel for Defendants must (i) transmit this Order to the Warden forthwith; (ii) contact the Intake Center forthwith to arrange the call and to determine the telephone number at which pro se plaintiff will be reachable at the above time and date; and (iii) telephone the Court with pro se plaintiff on the line at the time and date of the conference.
SO ORDERED.
Dated: February 26, 2020
New York, New York
KATHERINE POLK FAILLA
United States District Judge
Sent by First Class Mail to:
Anton Liverpool
No. 155581
Intake Center PO Box 8249
Cranston, Rhode Island 02920
Notes
They just sat back. Everyone that was in the immediate area, they just lean[ed] back on the officers’ station and watched and, you
(Manningham Decl., Ex. C at 20:22-21:1).know, sat in the officers’ station and watched it and commented, like it was a sports event.