Cano v. City of New York
Filing
OPINION, affirming in part, vacating in part the judgment of the district court and remanding for further proceedings consistent with this opinion, by PNL, RJL, J. Koeltl, FILED.[1972588] [15-2870]
Case 15-2870, Document 94-1, 02/21/2017, 1972588, Page1 of 52
15-2870
Darnell v. City of New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
____________________________________
August Term, 2016
Argued:
September 22, 2016
Decided: February 21, 2017
Docket No. 15-2870
____________________________________
KEVIN DARNELL, GERMAIN CANO, MICHAEL GLENN, MICHAEL MCGHEE, KERRY SCOTT,
TRAVIS GORDAN, GREGORY MAUGERI, DMITRIY MILOSLAVSKIY, STEVEN MODES, JACQUELINE
GUARINO, MICHAEL SPALANGO, WESLEY JONES, RAYMOND TUCKER, YVONNE MING, NANCY
VIGLIONE, KEITH JENNINGS, ELLI VIKKI, INDIVIDUALLY AND ON BEHALF OF A CLASS OF
ALL OTHERS SIMILARLY SITUATED, ERIC CEPHUS, PHILLIP SINGLETON, DEBORAH
GONZALEZ,
Plaintiffs – Appellants,
Nakaita Moore, Jahmel Lawyer, Peter Eppel,
Plaintiffs,
—v.—
RAFAEL PINEIRO, WILLIAM TOBIN, CITY
OF
NEW YORK, KENNETH KOBETITSCH,
Defendants – Appellees,
Deputy Commissioners John Does, 1-5, (representing the Deputy
Commissioners who supervised the operation of Brooklyn Central
Booking from June 12, 2010 to the present), Police Officers John
Does, 1-5, (representing the commanding officers of Brooklyn
Central Booking from June 12, 2010 to the present), Police
Commissioner Raymond Kelly,
Defendants.†
___________________________________
†
The Clerk of Court is respectfully requested to amend the
caption to conform to the above.
Case 15-2870, Document 94-1, 02/21/2017, 1972588, Page2 of 52
Before: LEVAL
1
AND
LOHIER, Circuit Judges, and KOELTL, District
Judge.*
Twenty state pretrial detainees brought individual § 1983
2
claims in the same complaint alleging that the City of New York
3
and the supervisory officers of a pre-arraignment holding
4
facility (collectively, “the defendants”) were deliberately
5
indifferent to allegedly unconstitutional conditions of
6
confinement at the holding facility. The United States District
7
Court for the Eastern District of New York (Kuntz, J.) granted
8
summary judgment in favor of the defendants, denied the
9
detainees’ motion to reconsider that judgment, and denied a
10
subsequent motion to reconsider the denial of the motion for
11
reconsideration. The detainees appealed.
12
The detainees concede that certain claims were properly
13
dismissed. As to those claims, we affirm the District Court’s
14
judgment. However, because there were genuine disputes as to
15
material facts with respect to the challenged conditions of
16
confinement, the individual defendants’ knowledge of those
17
conditions, and the failure to remedy those conditions, as well
18
as to the liability of the City of New York, we vacate the
19
judgment as to the remaining claims that were dismissed and
20
remand for further proceedings.
* Judge John G. Koeltl, of the United States District Court for
the Southern District of New York, sitting by designation.
2
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1
______________
2
3
4
5
6
7
8
SCOTT A. KORENBAUM (Stephen Bergstein, on the brief), Bergstein
& Ullrich, LLP, Chester, NY, for Plaintiffs-Appellants.
9
John G. Koeltl, District Judge:
ZACHARY W. CARTER, (Richard Dearing, Devin Slack, Kathy Chang
Park, on the brief), Corporation Counsel of the City of New
York, New York, NY, for Defendants-Appellees.
______________
10
This is a case about unconstitutional conditions of
11
confinement for pretrial detainees. Twenty state pretrial
12
detainees (“the plaintiffs”)1 arrested on separate dates between
13
July 10, 2011, and July 23, 2013, brought individual § 1983
14
claims in the same complaint against the City of New York (the
15
“City”), New York City Police Department (“NYPD”) Captain
16
Kenneth Kobetitsch, and NYPD Captain William Tobin (the
17
“individual defendants”) (collectively, “the defendants”).2 The
1
The plaintiffs are Kevin Darnell, Germain Cano, Michael Glenn,
Michael McGhee, Kerry Scott, Travis Gordan, Gregory Maugeri,
Dmitriy Miloslavskiy, Steven Modes, Jacqueline Guarino, Michael
Spalango, Wesley Jones, Raymond Tucker, Yvonne Ming, Nancy
Viglione, Keith Jennings, Elli Vikki, Eric Cephus, Phillip
Singleton, and Deborah Gonzalez. Three additional plaintiffs
initially brought claims against the defendants, but, prior to
this appeal, two voluntarily dismissed their claims without
prejudice, and one passed away.
2
The John Doe defendants named in the original complaint are no
longer parties to this action because the plaintiffs did not
pursue claims against them in the amended complaints. During the
proceedings before the District Court, the plaintiffs
voluntarily dismissed with prejudice the claims against former
NYPD Commissioner Raymond Kelly. By letter dated September 22,
2016, the plaintiffs abandoned the appeal of the judgment
dismissing their claims against Raphael Pineiro, the former
3
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1
plaintiffs alleged that they were each subjected to appalling
2
conditions of confinement while held pre-arraignment at Brooklyn
3
Central Booking (“BCB”) with deliberate indifference to the
4
deprivation of their Fourteenth Amendment due process rights.
5
Because BCB was only a pre-arraignment holding facility, no
6
plaintiff was held at BCB for more than twenty-four hours.
7
The United States District Court for the Eastern District
8
of New York (Kuntz, J.) granted summary judgment to the
9
defendants, reasoning that the plaintiffs failed to meet both
10
the objective and subjective requirements for a claim of
11
unconstitutional conditions of confinement based on a theory of
12
deliberate indifference. The District Court concluded that, with
13
respect to the “objective prong,” no plaintiff could establish
14
an objectively substantial deprivation of any constitutional
15
rights because no plaintiff actually suffered a serious injury,
16
or was “regularly denied his or her basic human needs or was
17
exposed to conditions that posed an unreasonable risk of serious
18
damage to his or her future health” for more than twenty-four
19
hours; nor could any plaintiff establish the “subjective prong”
20
of a deliberate indifference claim by proving that the
21
individual defendants were actually aware of any dangerous
22
conditions, or that the individual defendants acted unreasonably
First Deputy Commissioner of the NYPD. The judgment dismissing
the claims against Mr. Pineiro is accordingly affirmed.
4
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1
in responding to any such conditions; nor, for similar reasons,
2
could the plaintiffs establish that the individual defendants
3
acted with punitive intent. See Cano v. City of New York, 119 F.
4
Supp. 3d 65, 74, 82, 85-86 (E.D.N.Y. 2015). Because no plaintiff
5
could prove a constitutional deprivation, the District Court
6
also held that the individual defendants were entitled to
7
qualified immunity, and that the plaintiffs could not establish
8
that the City was liable pursuant to Monell v. Dep’t of Soc.
9
Servs. of City of New York, 436 U.S. 658, 690–91 (1978). See
10
11
Cano, 119 F. Supp. 3d at 86-87.
The District Court issued its opinion shortly after the
12
Supreme Court’s decision in Kingsley v. Hendrickson, 135 S. Ct.
13
2466 (2015), in which the Supreme Court held that, for excessive
14
force claims brought under the Due Process Clause of the
15
Fourteenth Amendment, “a pretrial detainee must show only that
16
the force purposely or knowingly used against him was
17
objectively unreasonable.” Id. at 2473. The Court rejected the
18
requirement that, for such claims, a pretrial detainee establish
19
a state of mind component to the effect that the official
20
applied the force against the pretrial detainee “maliciously and
21
sadistically to cause harm.” Id. at 2475 (citation omitted). The
22
District Court’s opinion was also issued two weeks before this
23
Court’s decision in Willey v. Kirkpatrick, 801 F.3d 51, 66-68
24
(2d Cir. 2015), in which this Court held that while the proper
5
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1
inquiry for a conditions of confinement claim is by reference to
2
the duration and severity of the conditions, the claim did not
3
require a “minimum duration” or “minimum severity” to reach the
4
level of a constitutional violation. This Court further made
5
clear that a “serious injury is unequivocally not a necessary
6
element of an Eighth Amendment [conditions of confinement]
7
claim.” Id. at 68.
8
The District Court did not analyze the implications of
9
Kingsley in its opinion. Moreover, the District Court denied the
10
plaintiffs’ motion for reconsideration based on Willey, as well
11
as the plaintiffs’ later motion for reconsideration of the order
12
denying the first motion for reconsideration, because the
13
District Court found that the plaintiffs’ appeal of the summary
14
judgment order divested it of jurisdiction over the case.
15
Among other issues, this case requires us to consider
16
whether, consistent with Willey, and the precedents on which it
17
is based, appalling conditions of confinement cannot rise to an
18
objective violation of the Fourteenth Amendment’s Due Process
19
Clause so long as the detainee is subjected to those conditions
20
for no more than twenty-four hours, and the detainee does not
21
suffer an actual, serious injury during that time. This case
22
also requires us to consider whether Kingsley altered the
6
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1
standard for conditions of confinement claims under the
2
Fourteenth Amendment’s Due Process Clause.3
3
For the reasons explained below, we affirm in part, and
4
vacate in part, the District Court’s judgment, and remand the
5
case to the District Court for further proceedings.
6
I.
7
In reviewing the District Court’s grant of summary judgment
8
in favor of the defendants, “we construe the evidence in the
9
light most favorable to the Plaintiffs, drawing all reasonable
10
inferences and resolving all ambiguities in their favor.” CILP
11
Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 118
12
(2d Cir. 2013) (citation and internal quotation marks omitted).
13
We affirm the grant of summary judgment only where “there is no
14
genuine dispute as to any material fact and the movant is
15
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
16
Our review is de novo. Ruggiero v. County of Orange, 467 F.3d
17
170, 173 (2d Cir. 2006).
3
This case implicates the Due Process Clause of the Fourteenth
Amendment because it involves state pretrial detainees who are
seeking to vindicate their constitutional rights. See, e.g.,
Benjamin v. Fraser, 343 F.3d 35, 49 (2d Cir. 2003), overruled on
other grounds by Caiozzo v. Koreman, 581 F.3d 63, 70 (2d Cir.
2009). However, the analysis in this decision should be equally
applicable to claims brought by federal pretrial detainees
pursuant to the Due Process Clause of the Fifth Amendment. See
Malinski v. New York, 324 U.S. 401, 415 (1945) (Frankfurter, J.,
concurring) (“To suppose that ‘due process of law’ meant one
thing in the Fifth Amendment and another in the Fourteenth is
too frivolous to require elaborate rejection.”).
7
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1
2
A.
This is a lawsuit on behalf of twenty individual plaintiffs
3
rather than a class action. As such, this is a review of a
4
judgment dismissing the separate claims of twenty plaintiffs
5
that were filed in a single complaint.
6
In its analysis, the District Court did not perform
7
individualized assessments of each plaintiff’s claims, reasoning
8
instead that, because no plaintiff’s confinement at BCB exceeded
9
twenty-four hours, and no plaintiff suffered an actual, serious
10
physical injury, no plaintiff could establish a violation. As
11
discussed below, the District Courted erred in its analysis.
12
Although the evidence differed with respect to the conditions
13
that each plaintiff was subjected to, we summarize the facts in
14
the light most favorable to the plaintiffs as a group to explain
15
the error in the District Court’s grant of summary judgment
16
dismissing the Second Amended Complaint. On remand, however, it
17
will be necessary for the District Court to analyze each
18
plaintiff’s claims, both with respect to the conditions of
19
confinement experienced by each plaintiff, and the personal
20
involvement of the individual defendants with respect to the
21
claims of each plaintiff.
8
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1
B.
2
(i)
3
During the relevant period, BCB was a temporary holding
4
facility located at 275 Atlantic Avenue, Brooklyn, New York,
5
that held recently arrested pretrial detainees awaiting
6
arraignment. BCB has since been relocated to a different
7
facility in Brooklyn. The facility at issue in this dispute is
8
no longer used to hold pretrial detainees.4
9
Individual defendant Captain Kenneth Kobetitsch was the
10
commanding officer at BCB through July 2011, and his tenure only
11
overlapped with the detention of plaintiff Glenn.5 Thereafter,
12
beginning on August 29, 2011, individual defendant Captain
13
William Tobin became BCB’s commanding officer, a position he
14
still holds, and his tenure overlapped with the detention of the
15
other plaintiffs. During their respective tenures, Captain
16
Kobetitsch and Captain Tobin supervised the officers and the
17
staff at BCB. Captain Kobetitsch and Captain Tobin toured and
4
The plaintiffs initially brought claims against the defendants
seeking compensatory damages and injunctive relief, but, in
proceedings before the District Court, the plaintiffs abandoned
the request for injunctive relief.
5
By letter dated September 22, 2016, the plaintiffs abandoned
their claims against Captain Kobetitsch, except as to plaintiff
Glenn, because Captain Kobetitsch was the commanding officer of
BCB only at the time plaintiff Glenn was detained there. The
judgment dismissing the claims against Captain Kobetitsch---with
the exception of plaintiff Glenn’s claims against Captain
Kobetitsch---is accordingly affirmed.
9
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1
inspected BCB daily, including its holding cells. Captain Tobin
2
testified that he monitored BCB for “cleanliness.”
3
BCB had eight holding cells, six designated for use by men
4
and two by women. Subordinate officers guarded detainees and
5
also purportedly received “training and instructions with
6
respect to, among other things, transferring detainees between
7
cells, ensuring that there [was] an appropriate number of
8
detainees in individual cells, so as to avoid overcrowding,
9
handling and providing food and beverages to detainees, proper
10
sanitation procedures, and the proper method for handling and
11
disposing of human excrement.”
12
(ii)
13
On separate dates between July 10, 2011, and July 23, 2013,
14
each plaintiff was arrested and detained in holding cells at
15
BCB.6 Because BCB is a temporary holding facility, each plaintiff
16
was held in custody at BCB from between ten to twenty-four
17
hours. While detained at BCB during the two-year period, each
18
plaintiff was allegedly subjected to one or more degrading
19
conditions of confinement that purportedly constitute nine types
20
of constitutional deprivations: (1) Overcrowding; (2) Unusable
21
Toilets; (3) Garbage and Inadequate Sanitation; (4) Infestation;
6
With the exception of plaintiffs Spalango and Tucker, who were
each detained at BCB on March 13, 2013, and plaintiffs Jennings
and Singleton, who were each detained at BCB on July 23, 2013,
the plaintiffs’ confinements at BCB did not overlap with each
other.
10
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1
(5) Lack of Toiletries and Other Hygienic Items; (6) Inadequate
2
Nutrition; (7) Extreme Temperatures and Poor Ventilation; (8)
3
Deprivation of Sleep; and (9) Crime and Intimidation. The
4
evidence adduced related to each condition, construed in the
5
light most favorable to the plaintiffs, is discussed in turn.
6
1.
Overcrowding. The plaintiffs consistently testified
7
that, for the majority of their respective confinements at BCB,
8
they and other detainees were packed into overcrowded cells
9
designed for, at best, one-half to one-third the actual
10
capacity. For example, one plaintiff testified that his holding
11
cell was so crowded that he could not determine if it had a
12
toilet. Another plaintiff described his cell as “having no room
13
to even stand” because it was “stuffed . . . like a can of
14
sardines.”
15
The plaintiffs testified that, because the cells were so
16
full, there was often only space to stand for hours at a time,
17
and that being forced to stand for hours continuously was
18
painful and degrading. Even when there was space in the cells,
19
the plaintiffs were reluctant to sit or lie down because the
20
floors were filthy. As one plaintiff testified, he only sat down
21
“out of extreme necessity” because he was “exhausted” and
22
“dehydrated.” While cells contained hard benches, there were not
23
nearly enough benches in any given cell to accommodate its
24
numerous occupants.
11
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1
2.
Unusable Toilets. Each cell at BCB contained, at best,
2
one exposed toilet that lacked a seat, lid, toilet paper, or
3
sufficient privacy partitions to conceal a toilet user from his
4
or her fellow holding mates. One plaintiff, who was too tired to
5
remain standing, testified that he curled up in a fetal position
6
next to the toilet, the only place he could find room to do so
7
in the cell. Some plaintiffs testified that they were kept for
8
stretches in cells that did not have any toilet at all.
9
Captain Tobin testified that, as a general practice,
10
toilets were cleaned and maintained regularly. Captain Tobin
11
also swore that “[d]etainees are never placed in a cell with a
12
non-functioning toilet” and that “[t]here is always at least one
13
roll of toilet paper provided in each cell.”
14
But the plaintiffs consistently testified that, for any
15
cell that did have a toilet, the toilet rim and bowl, along with
16
the surrounding floor and walls, were covered with some
17
combination of feces, maggots, urine, vomit, and rotten milk.
18
The toilets were frequently clogged and would overflow, spilling
19
their contents. The smell was horrific, with one plaintiff
20
describing the odor in the cells as “overbearing.” The
21
plaintiffs testified that roaches, mice, and other insects and
22
vermin were commonplace in the area around the toilets.
23
24
Under these circumstances, the plaintiffs testified that,
to varying degrees and for varying reasons, they found the
12
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1
toilets unusable. Some testified that they had the tolerance to
2
urinate in the toilets, while others could not bring themselves
3
to use the toilets even for urination. Some plaintiffs testified
4
that they did not use the toilet for the eminently practical
5
reason that it was clogged or overflowing, leading those
6
plaintiffs to fear that any overflow would spill into the cell
7
and even land on other detainees standing, sitting, or lying
8
next to the toilet; while others found the toilet and
9
surrounding area simply too sickening and unsanitary to use. As
10
one plaintiff testified, “you would have to be really out of
11
your mind to use” the toilet.
12
One plaintiff testified that he defecated in his pants
13
because he could no longer control his bowels. Another plaintiff
14
testified that he used a toilet to defecate without any toilet
15
paper. That plaintiff was later given an almost depleted roll of
16
toilet paper, which did not have enough paper for him to clean
17
himself.
18
Some of the plaintiffs testified that they asked officers
19
to take them to other cells with less filthy toilets, requests
20
the officers almost invariably denied.
21
3.
Garbage and Inadequate Sanitation. Given that many of
22
the toilets were clogged and overflowing, the plaintiffs
23
unsurprisingly testified that the holding cells themselves were
24
filthy. The cells had feces and dried urine caked to the floors.
13
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1
The stench from the toilets drifted through the holding cells,
2
and caused one plaintiff to “dry heav[e] . . . yellow bile.” The
3
plaintiffs consistently testified that the floors were sticky
4
and covered with garbage and other unsanitary items, such as
5
vomit, dead roaches, decaying apple cores, old milk cartons, and
6
rotting sandwiches. One plaintiff testified that he could not
7
“recall a time [the cells were] sanitary for a human being.”
8
9
Pursuant to prison policy, the cells did not contain trash
cans and detainees were expected to throw their trash on the
10
floor. Captain Tobin swore that BCB’s cells were cleaned by BCB
11
custodial staff three times a day. However, the plaintiffs did
12
not testify to witnessing any BCB staff cleaning or maintaining
13
the cells.
14
4.
Infestation. The plaintiffs consistently testified
15
that the holding cells were infested with rats, mice,
16
cockroaches, flies, and other insects and vermin. One plaintiff
17
testified that he saw mice and roaches coming out of a radiator;
18
another testified that he saw water bugs emerging from the
19
toilet and nearby exposed pipes; while another described seeing
20
roaches in the area where the food was stored, and under a sink.
21
Yet another plaintiff testified that he observed roaches
22
climbing on his sneaker. Finally, some plaintiffs testified that
23
they watched as rats and insects crawled into, out-of, and
24
around the boxes where food was stored.
14
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1
5.
Lack of Toiletries and Other Hygienic Items. The
2
plaintiffs generally testified that they were not provided with
3
basic toiletries, such as soap, tissues, toothbrushes,
4
toothpaste, and toilet paper, and that the officers generally
5
refused to provide these items even when explicitly requested.
6
One plaintiff, who was menstruating at the time of her
7
detention, began “bleeding all over [her]self.” She testified
8
that the officers were dismissive of her repeated requests for
9
sanitary napkins, and that she stopped asking for sanitary
10
napkins only when she heard an officer reprimand another
11
detainee for making similar requests. Likewise, another
12
plaintiff testified that he and his fellow detainees took turns
13
asking the officers for toilet paper. The officers responded by
14
threatening to delay arraignment if the detainees kept
15
“harassing [them].”
16
6.
Inadequate Nutrition. The plaintiffs generally found
17
the food and water provisions nutritionally inadequate. The
18
plaintiffs testified that the sandwiches, and much of the other
19
food, were moldy, rotten, stale, or otherwise inedible. Some
20
plaintiffs described seeing vermin and insects crawling in and
21
around the food boxes, which caused those plaintiffs to avoid
22
the food. One plaintiff testified that he saw another detainee
23
receive a sandwich that had rat bite marks in it. Another
24
plaintiff, a practicing Jewish Rabbi, refused to eat any food
15
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1
because it was not Kosher. When the plaintiff complained to an
2
officer, the officer replied, “[b]eggars can’t be choosy.” Under
3
these circumstances, some of the plaintiffs refused to eat any
4
food at BCB.
5
Many plaintiffs also testified that they did not trust that
6
the “drinking water” at BCB was potable because it was only
7
accessible from a grimy cooler on the floor, a filthy fountain,
8
or a dirty sink adjacent to the toilet. Some plaintiffs
9
testified that the water from those sources looked rusty and
10
11
otherwise foul.
Other plaintiffs testified that they did not have access to
12
any water or food, in any condition, for long periods of time.
13
One plaintiff testified that he asked for water, but that BCB
14
ran out of water. Another plaintiff testified that he did not
15
ask the officers for water or food after he witnessed the
16
officers ridiculing another detainee who had made the same
17
request.
18
Under these circumstances, many of the plaintiffs refused
19
to drink water and became dehydrated. Some plaintiffs were given
20
milk, but most refused to drink it because it was inexplicably
21
hot. The plaintiffs testified that the officers ignored the
22
plaintiffs’ concerns with respect to the milk and water.
23
24
7.
Extreme Temperatures and Poor Ventilation. The holding
cells were located in areas of BCB that suffered from poor
16
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1
ventilation, which exacerbated odor problems. In addition, the
2
plaintiffs testified that they were subjected to extreme
3
temperatures depending on the season and the location at BCB---
4
as such, a plaintiff might experience extreme heat and extreme
5
cold on the same day while moving through BCB. Some plaintiffs
6
testified that they found BCB unbearably hot while others
7
testified that they found it unbearably cold. One plaintiff
8
arrested in January 2012 testified that she removed her socks
9
and shoes due to the “ridiculous[] heat” even though she found
10
the cells, including the cell floors, disgusting and repulsive.
11
8.
Deprivation of Sleep. The plaintiffs testified that
12
they generally could not sleep while at BCB for a variety of
13
reasons. The filthy state of the holding cells, coupled with the
14
sheer number of detainees housed in any given cell, made it
15
difficult to find enough room to lie down---many plaintiffs
16
refused to sit or lie down on the floors at all. While BCB
17
apparently had mats that it would provide detainees upon
18
request, many plaintiffs testified that they were unaware of
19
their availability and, regardless, did not see any provided in
20
the cells. To explain why she did not think to request a mat,
21
one plaintiff mused that, “if [the officers] would not give
22
somebody toilet paper, I didn’t think they” would give us mats.
23
The plaintiffs who were given mats testified that the mats were
17
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1
filthy and, in any event, that there was no room in the cells to
2
lie down on them because of the overcrowding.
3
9.
Crime and Intimidation. The plaintiffs witnessed other
4
detainees fight each other. Some plaintiffs testified that
5
officers did not monitor the cells to break up altercations. One
6
plaintiff testified that she was kicked, pushed, and verbally
7
abused by other detainees, and that there was no officer nearby
8
to intervene. Another plaintiff testified that he was verbally
9
accosted by two other detainees for about ten hours, but that
10
the officers ignored his requests to be transferred to another
11
cell.
12
13
(iii)
The plaintiffs paint a picture of BCB that is alarming and
14
appalling. The plaintiffs testified that they found the
15
conditions at BCB degrading, humiliating, and emotionally
16
scarring. One plaintiff testified: “I was not treated in a
17
humane manner. I believe if I were a dog, and that if the
18
A.S.P.C.A. was brought in and there was a dog in that cell, that
19
the police officers, whoever were responsible for the treatment
20
of that dog in that cell, that they would be brought up on
21
charges.” Another plaintiff had an anxiety attack that required
22
hospitalization, which he explained:
23
24
25
[S]tarted because of the deplorable conditions. I
tried holding my bowel for about four hours. I wasn’t
able to use the bathroom or any form of the bathroom
18
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1
2
3
4
5
6
7
8
9
10
11
12
and I found it very hard to breathe. My chest was very
heavy and I tried to alert the guard. One guard just
walked by and when they were letting in more people I
told the guard I have to go to the hospital. I’m
having chest pains and it was maybe 30 minutes after
that they took me to the medical cell.
Another plaintiff testified that the experience “stay[ed]”
with him, explaining that it was something that was difficult to
forget.
However, the plaintiffs did not generally testify that they
suffered serious long term physical injuries or illnesses.
13
C.
14
(i)
15
The plaintiffs filed their initial complaint on June 26,
16
2013, which they amended on August 7, 2013, and again on
17
September 12, 2013. The defendants moved to dismiss the
18
plaintiffs’ claims pursuant to Rule 12(b)(6) of the Federal
19
Rules of Civil Procedure, a motion the District Court denied in
20
an Opinion and Order dated September 12, 2014. See Cano v. City
21
of New York, 44 F. Supp. 3d 324 (E.D.N.Y. 2014).
22
Although not the subject of the current appeal, this prior
23
opinion by the District Court provides helpful background. In
24
that opinion, the District Court noted that the defendants had
25
argued for a nearly “per se rule that no matter the conditions,
26
if a detainee is only exposed to them for less than twenty-four
27
hours, there can be no objective constitutional violation.” Id.
19
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1
at 333. The District Court rejected the defendants’ argument,
2
reasoning that even temporary deprivations could be objectively
3
unconstitutional so long as those conditions were sufficiently
4
serious. See id. The District Court accordingly held that the
5
plaintiffs had “plausibly alleged that the conditions of
6
confinement at BCB deprived them of the minimal civilized
7
measures of life’s necessities and subjected them to
8
unreasonable health and safety risks.” Id. (citing Walker v.
9
Schult, 717 F.3d 119, 126 (2d Cir. 2013)).
10
In addition, relying on this Court’s decision in Caiozzo v.
11
Koreman, 581 F.3d 63, 70 (2d Cir. 2009), the District Court
12
concluded that, to state a claim for unconstitutional conditions
13
of confinement, the plaintiffs were required to allege that the
14
individual defendants had acted with deliberate indifference in
15
a subjective sense, namely that the defendants knew and
16
disregarded excessive risks to the plaintiffs’ health and
17
safety. Cano, 44 F. Supp. 3d at 332-34. The District Court held
18
that the plaintiffs had met this threshold, ruling that it was
19
plausible that the individual defendants were aware of the
20
challenged conditions based on, among other things, “their own
21
observations . . . external reports and complaints; complaints
22
filed by detainees; reports by the media; and prior lawsuits.”
23
Id. at 334.
20
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1
The District Court also held that the plaintiffs had
2
adequately alleged punitive intent and personal involvement by
3
the individual defendants. See id. at 334-36.
4
5
(ii)
At the close of extensive discovery---which included, among
6
other things, the often uncontroverted deposition testimony of
7
each plaintiff---the defendants moved for summary judgment,
8
which the District Court granted in an Opinion and Order dated
9
August 13, 2015. Cano v. City of New York, 119 F. Supp. 3d 65
10
11
(E.D.N.Y. 2015).
The District Court began by stating that it would describe
12
the facts of the case “in the light most favorable to the
13
Plaintiffs, the non-moving party.” Id. at 70 (citation omitted).
14
However, the District Court never described the evidence of the
15
conditions that each individual plaintiff faced. Instead, the
16
District Court summarized the case by quoting allegations from
17
the Second Amended Complaint before proceeding to its discussion
18
of the case. See id. at 70-71. The District Court ultimately
19
held that the defendants were entitled to summary judgment for
20
several reasons. Id. at 72-73.
21
First, the District Court found that no jury could conclude
22
that any of the evidence of the challenged conditions of
23
confinement, “either taken in the aggregate or taken as a
24
whole,” objectively deprived any of the plaintiffs of their due
21
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1
process rights. Id. at 81. In contrast to the state of law
2
described in its opinion denying the defendants’ motion to
3
dismiss, the District Court concluded that, “[t]he Second
4
Circuit and her constituent District Courts have routinely held
5
that occasional and temporary deprivations of sanitary and
6
temperate conditions, without more, do not constitute a
7
sufficiently serious deprivation under the Eighth Amendment to
8
constitute punishment.” Id. at 74. Accordingly, the District
9
Court held that, “while certain conditions may have been
10
uncomfortable for Plaintiffs, the evidence fails to establish
11
any Plaintiff was regularly denied his or her basic human needs
12
or was exposed to conditions that posed an unreasonable risk of
13
serious damage to his or her future health.” Id. (emphasis
14
added). In particular, the District Court reasoned that no
15
plaintiff could establish an objective constitutional
16
deprivation because no plaintiff could link any condition of
17
confinement to any actual serious injury, and because the period
18
of confinement did not exceed twenty-four hours for any
19
plaintiff. See, e.g., id. (“Plaintiffs fail to show any of them
20
were subjected to overcrowding for an extended period of time
21
and further fail to establish any of them were injured in any
22
way from the overcrowding.”); id. at 82 (“Most Plaintiffs did
23
not seek any sort of medical treatment and none of the
24
Plaintiffs provide evidence of having suffered any long term
22
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1
physical or emotional harm due to time spent in the BCB.”); see
2
also id. at 74-82.
3
Second, the District Court concluded that no reasonable
4
jury could find that the plaintiffs had satisfied the subjective
5
prong of a deliberate indifference claim, namely that the
6
officers knew about conditions that posed excessive risks to the
7
plaintiffs’ safety and health. The Court found that the evidence
8
for the individual defendants---especially BCB’s log book
9
entries, which documented sporadic cleaning and maintenance
10
efforts, and Captain Tobin’s deposition testimony---established
11
that the individual defendants had reasonable practices in place
12
to ensure that the officers under their supervision acted
13
reasonably in response to any risks. Id. at 84-85. The District
14
Court found that the individual defendants had acted with, at
15
most, mere negligence. Id. at 84. Moreover, the District Court
16
found that none of the individual defendants could have known
17
about the allegedly unconstitutional conditions because there
18
was no evidence that the subordinate officers who actually
19
guarded the detainees informed the individual defendants of any
20
of the challenged conditions, which were not unconstitutional in
21
any event. See id. at 85.
22
23
Third, for substantially the same reasons, the District
Court concluded that there was no triable issue of fact as to
23
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1
whether any individual defendant had acted with punitive intent.
2
See id. at 85-86.
3
Finally, because the plaintiffs had failed to establish a
4
triable issue of fact that any of them had suffered an objective
5
deprivation (and therefore failed to establish an underlying
6
constitutional violation), the District Court concluded that the
7
individual defendants were entitled to qualified immunity, and
8
that the plaintiffs could not prove that the City had any Monell
9
liability. See id. at 86-87.
10
(iii)
11
On August 14, 2015, the District Court entered judgment
12
dismissing the plaintiffs’ Second Amended Complaint. On August
13
28, 2015, this Court issued its decision in Willey. On the same
14
day, the plaintiffs informed the District Court of their
15
intention to move for reconsideration based on Willey, and the
16
District Court later set a briefing schedule whereby the motion
17
for reconsideration would be fully briefed by October 23, 2015.
18
On September 11, 2015, the plaintiffs timely filed a Notice
19
of Appeal challenging the District Court’s grant of summary
20
judgment. Later that day, the plaintiffs filed with the District
21
Court their motion for reconsideration pursuant to Rules 59(e)
22
and 60(b) of the Federal Rules of Civil Procedure, and Local
23
Rule 6.3(e) of the United States District Court for the Eastern
24
District of New York. On the same day, in a minute order (the
24
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1
“First Minute Order”), the District Court denied the motion for
2
reconsideration, stating that the appeal divested it of
3
jurisdiction over the case.
4
The plaintiffs promptly moved for reconsideration of the
5
First Minute Order, arguing that, pursuant to Rule 4(a)(4)(B)(i)
6
of the Federal Rules of Appellate Procedure, the appeal did not
7
divest the District Court of jurisdiction to reconsider the
8
judgment. On September 12, 2015, in another minute order (the
9
“Second Minute Order”), the District Court denied without
10
elaboration the plaintiffs’ motion for reconsideration of the
11
First Minute Order. On October 5, 2015, the plaintiffs filed an
12
Amended Notice of Appeal challenging, in addition to the grant
13
of summary judgment, the First and Second Minute Orders.7
14
II.
15
16
A pretrial detainee’s claims of unconstitutional conditions
of confinement are governed by the Due Process Clause of the
7
It is unnecessary to reach the plaintiffs’ appeal challenging
the First and Second Minutes Orders, which were entered postjudgment. Those Orders do not raise any substantial issues that
affect the disposition of this appeal. To the extent that the
plaintiffs’ Notice of Appeal divested the District Court of its
jurisdiction to hear the post-judgment motions, Rule 62.1 of the
Federal Rules of Civil Procedure permits district courts to
issue “indicative rulings” to appellate courts when “a timely
motion is made for relief that the court lacks authority to
grant because of an appeal that has been docketed and is
pending.” Fed. R. Civ. P. 62.1; see also Fed. R. App. P. 12.1.
In the indicative ruling, the district court may indicate if it
believes that the relief sought is meritorious, meritless, or
merits further consideration, and request that the appellate
court remand the case for further proceedings.
25
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1
Fourteenth Amendment, rather than the Cruel and Unusual
2
Punishments Clause of the Eight Amendment. Benjamin v. Fraser,
3
343 F.3d 35, 49 (2d Cir. 2003), overruled on other grounds by
4
Caiozzo v. Koreman, 581 F.3d 63, 70 (2d Cir. 2009); see also
5
City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). A
6
pretrial detainee’s claims are evaluated under the Due Process
7
Clause because, “[p]retrial detainees have not been convicted of
8
a crime and thus ‘may not be punished in any manner—neither
9
cruelly and unusually nor otherwise.’” Iqbal v. Hasty, 490 F.3d
10
143, 168 (2d Cir. 2007) (quoting Benjamin, 343 F.3d at 49–50),
11
rev’d on other grounds sub nom., Ashcroft v. Iqbal, 556 U.S.
12
662, 678 (2009). A detainee’s rights are “at least as great as
13
the Eighth Amendment protections available to a convicted
14
prisoner.” City of Revere, 463 U.S. at 244.
15
A pretrial detainee may establish a § 1983 claim for
16
allegedly unconstitutional conditions of confinement by showing
17
that the officers acted with deliberate indifference to the
18
challenged conditions. See Benjamin, 343 F.3d at 50. This means
19
that a pretrial detainee must satisfy two prongs to prove a
20
claim, an “objective prong” showing that the challenged
21
conditions were sufficiently serious to constitute objective
22
deprivations of the right to due process, and a “subjective
23
prong”---perhaps better classified as a “mens rea prong” or
24
“mental element prong”---showing that the officer acted with at
26
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1
least deliberate indifference to the challenged conditions. The
2
reason that the term “subjective prong” might be a misleading
3
description is that, as discussed below, the Supreme Court has
4
instructed that “deliberate indifference” roughly means
5
“recklessness,” but “recklessness” can be defined subjectively
6
(what a person actually knew, and disregarded), or objectively
7
(what a reasonable person knew, or should have known). See
8
Farmer v. Brennan, 511 U.S. 825, 836-37 (1994).
9
Relying on this Court’s decision in Caiozzo v. Koreman, 581
10
F.3d 63, 72 (2d Cir. 2009), the District Court concluded that
11
the elements for establishing deliberate indifference under the
12
Fourteenth Amendment were the same as under the Eighth
13
Amendment. Cano, 119 F. Supp. 3d at 72 (citing Caiozzo, 581 F.3d
14
at 72). Therefore, the District Court required the plaintiffs to
15
prove that, “(1) objectively, the deprivation the [detainee]
16
suffered was ‘sufficiently serious that he was denied the
17
minimal civilized measure of life’s necessities,’ and (2)
18
subjectively, the defendant official acted with ‘a sufficiently
19
culpable state of mind . . . , such as deliberate indifference
20
to [detainee] health or safety.’” Id. at 73 (quoting Walker, 717
21
F.3d at 125).
22
In applying this test, the District Court erred in two
23
respects. First, the District Court misapplied this Court’s
24
precedents in assessing whether the plaintiffs had established
27
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1
an objectively serious deprivation. Second, we conclude that the
2
Supreme Court’s decision in Kingsley altered the standard for
3
deliberate indifference claims under the Due Process Clause.
4
A.
5
Under both the Eighth and Fourteenth Amendments, to
6
establish an objective deprivation, “the inmate must show that
7
the conditions, either alone or in combination, pose an
8
unreasonable risk of serious damage to his health,” Walker, 717
9
F.3d at 125, which includes the risk of serious damage to
10
“physical and mental soundness,” LaReau v. MacDougall, 473 F.2d
11
974, 978 (2d Cir. 1972). There is no “static test” to determine
12
whether a deprivation is sufficiently serious; instead, “the
13
conditions themselves must be evaluated in light of contemporary
14
standards of decency.” Blissett v. Coughlin, 66 F.3d 531, 537
15
(2d Cir. 1995) (citing Rhodes v. Chapman, 452 U.S. 337, 346
16
(1981)). For example, “[w]e have held that prisoners may not be
17
deprived of their basic human needs—e.g., food, clothing,
18
shelter, medical care, and reasonable safety—and they may not be
19
exposed to conditions that pose an unreasonable risk of serious
20
damage to [their] future health.” Jabbar v. Fischer, 683 F.3d
21
54, 57 (2d Cir. 2012) (citation and internal quotation marks
22
omitted).
23
24
“[C]onditions of confinement may be aggregated to rise to
the level of a constitutional violation, but ‘only when they
28
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1
have a mutually enforcing effect that produces the deprivation
2
of a single, identifiable human need such as food, warmth, or
3
exercise.’” Walker, 717 F.3d at 125 (quoting Wilson v. Seiter,
4
501 U.S. 294, 304 (1991)). Unsanitary conditions, especially
5
when coupled with other mutually enforcing conditions, such as
6
poor ventilation and lack of hygienic items (in particular,
7
toilet paper), can rise to the level of an objective
8
deprivation. See id. at 127-28 (collecting cases).
9
In Willey v. Kirkpatrick, 801 F.3d 51, 68 (2d Cir. 2015),
10
this Court recently reiterated that the proper lens through
11
which to analyze allegedly unconstitutional unsanitary
12
conditions of confinement is with reference to their severity
13
and duration, not the detainee’s resulting injury. In Willey, a
14
convicted prisoner brought, among other claims, a claim under
15
the Eighth Amendment against officers at a prison who allegedly
16
exposed him to unsanitary conditions by confining him alone in a
17
cell with little airflow, and then incapacitating his toilet for
18
a period of, at a minimum, seven days “so that he was reduced to
19
breathing a miasma of his own waste.” Id. at 55. In addition, on
20
two separate occasions (during one of which the prisoner was
21
kept naked), the officers confined the prisoner to an
22
observation cell smeared with feces and urine. See id. at 55,
23
58.
29
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1
In reinstating the prisoner’s claim, Willey reviewed Second
2
Circuit case law involving exposure to unsanitary conditions,
3
and, consistent with this Court’s precedents, made clear that
4
unsanitary conditions of confinement must be assessed according
5
to two components, severity and duration, on a case-by-case
6
basis.8 Id. at 66-68 (citing Gaston v. Coughlin, 249 F.3d 156 (2d
7
Cir. 2001); LaReau v. MacDougall, 473 F.2d 974 (2d Cir. 1972)).
8
While Willey acknowledged that “there are many exposures of
9
inmates to unsanitary conditions that do not amount to a
10
constitutional violation,” the Court rejected a “bright-line
11
durational requirement for a viable unsanitary-conditions claim”
12
or a “minimal level of grotesquerie required” before such a
13
claim could be brought. Id. at 68. As this Court explained,
14
“[t]he severity of an exposure may be less quantifiable than its
15
duration, but its qualitative offense to a prisoner’s dignity
16
should be given due consideration.” Id. Finally, the Court noted
17
that “serious injury is unequivocally not a necessary element of
18
an Eighth Amendment claim,” although “the seriousness of the
19
harms suffered is relevant to calculating damages and may shed
20
light on the severity of an exposure.” Id.
21
22
Willey also reinstated the prisoner’s claim based on the
provision of nutritionally inadequate food, concluding that the
8
The Court also noted that other Courts of Appeals are broadly
in accord with this analytical framework. See Willey, 801 F.3d
at 67 (collecting cases).
30
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1
prisoner’s allegations that he was usually served stale bread
2
and rotten cabbage for one week were sufficient to allege an
3
objective deprivation. Id. at 69. This Court again rejected the
4
imposition of bright-line limits on inadequate nutrition claims,
5
noting that the prisoner’s “claim is not that all restricted
6
diets are unconstitutional, but that . . . . his restricted diet
7
was unusually unhealthy.” Id.
8
Some of the challenged conditions in this case, such as
9
inadequate nutrition, and unsanitary conditions---including
10
inoperable toilets and filthy cells---are clearly covered by
11
Willey. Other conditions at issue, such as overcrowding, do not
12
necessarily fall under Willey’s express ambit. However, Willey
13
was not breaking new ground, but rather reaffirming the law in
14
this Circuit, and its reasoning applies to the other challenged
15
conditions in this case.
16
While the claims before the Court in Willey related to
17
unsanitary conditions and inadequate nutrition, this Court has
18
been reluctant to impose bright-line durational or severity
19
limits in conditions of confinement cases, and has never imposed
20
a requirement that pretrial detainees show that they actually
21
suffered from serious injuries. See Walker, 717 F.3d at 129
22
(distinguishing Rhodes v. Chapman, 452 U.S. 337 (1981), by
23
reasoning that the Supreme Court did not hold, as a matter of
24
law, that the provision of a cell sufficient to afford a
31
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1
pretrial detainee thirty-one square feet of space could not be
2
an unconstitutional deprivation of living space). Even in the
3
rare case where the Court has imposed bright-line limits, those
4
limits have been flexible and dependent upon the circumstances.
5
See Jabbar, 683 F.3d at 57 (“We hold that the failure of prison
6
officials to provide inmates with seatbelts on prison transport
7
buses does not, standing alone, violate the Eighth or Fourteenth
8
Amendments.” (emphasis added)).
9
Bright-line limits are generally incompatible with
10
Fourteenth Amendment teaching that there is no “static”
11
definition of a deprivation, see Blissett, 66 F.3d at 537
12
(citing Rhodes, 452 U.S. at 346), and the Supreme Court’s
13
instruction that any condition of confinement can mutually
14
enforce another, so long as those conditions lead to the same
15
deprivation, see Wilson, 501 U.S. at 304; see also Walker, 717
16
F.3d at 127-28. The latter point is implicit in Willey, 805 F.3d
17
at 68, which found that conditions that would normally have
18
nothing to do with sanitation (for example, poor air circulation
19
or being kept naked) can exacerbate the harmful effects of
20
unsanitary conditions. Accordingly, this Court has repeatedly
21
reiterated that conditions of confinement cases involve fact-
22
intensive inquiries. See, e.g., Willey, 805 F.3d at 68-69.
23
24
The standards for evaluating objective deprivations, as
articulated in Willey, thus extend to each of the nine
32
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1
challenged conditions of confinement at issue in this case---(1)
2
Overcrowding; (2) Unusable Toilets; (3) Garbage and Inadequate
3
Sanitation; (4) Infestation; (5) Lack of Toiletries and Other
4
Hygienic Items; (6) Inadequate Nutrition; (7) Extreme
5
Temperatures and Poor Ventilation; (8) Deprivation of Sleep; and
6
(9) Crime and Intimidation---regardless of whether those
7
conditions relate to a deprivation involving sanitation or
8
inadequate nutrition. Each of these conditions must be measured
9
by its severity and duration, not the resulting injury, and none
10
of these conditions is subject to a bright-line durational or
11
severity threshold. Moreover, the conditions must be analyzed in
12
combination, not in isolation, at least where one alleged
13
deprivation has a bearing on another. See Wilson, 501 U.S. at
14
304 (noting the synergy between cold temperatures and the
15
failure to provide blankets in establishing an Eighth Amendment
16
violation). An overcrowded cell, for example, may exacerbate the
17
effect of unsanitary conditions. Similarly, poor ventilation may
18
be particularly harmful when combined with an overflowing
19
toilet. Inadequate nutrition may be compounded by infestation.
20
B.
21
The second element of a conditions of confinement claim
22
brought under the Due Process Clause of the Fourteenth Amendment
23
is the defendant’s “deliberate indifference” to any objectively
24
serious condition of confinement. Courts have traditionally
33
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1
referred to this second element as the “subjective prong.” But
2
“deliberate indifference,” which is roughly synonymous with
3
“recklessness,” can be defined either “subjectively” in a
4
criminal sense, or “objectively” in a civil sense. As such, the
5
“subjective prong” might better be described as the “mens rea
6
prong” or “mental element prong.”
7
Just over two decades ago, in Farmer v. Brennan, 511 U.S.
8
825 (1994), the Supreme Court addressed the meaning of
9
“deliberate indifference” in the context of a convicted
10
prisoner’s deliberate indifference to conditions of confinement
11
claim brought under the Cruel and Unusual Punishments Clause of
12
the Eighth Amendment. The Supreme Court concluded that
13
deliberate indifference is properly equated with the mens rea of
14
“recklessness.” Id. at 836. However, the Court observed that
15
recklessness is not completely self-defining. See id. The Court
16
noted that recklessness could be defined according to an
17
objective standard akin to that used in the civil context, which
18
would not require proof of an official’s actual awareness of the
19
harms associated with the challenged conditions, or according to
20
a more exacting subjective standard akin to that used in the
21
criminal context, which would require proof of such subjective
22
awareness. See id. at 836-37.
23
The Supreme Court in Farmer rejected the application of an
24
objective standard for deliberate indifference as inappropriate
34
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1
under the Cruel and Unusual Punishments Clause, holding that an
2
official “cannot be found liable under the Eighth Amendment for
3
denying an inmate humane conditions of confinement unless the
4
official knows of and disregards an excessive risk to inmate
5
health or safety; the official must both be aware of facts from
6
which the inference could be drawn that a substantial risk of
7
serious harm exists, and he must also draw the inference.” Id.
8
at 837. The Supreme Court based its holding on a close reading
9
of the text of the Cruel and Unusual Punishments Clause, which
10
“outlaws cruel and unusual ‘punishments,’” not “cruel and
11
unusual ‘conditions.’” Id. According to the Supreme Court,
12
“punishment” connotes a subjective intent on the part of the
13
official, which also requires awareness of the punishing act or
14
omission. See id. at 836-37. As the Court stated, “an official’s
15
failure to alleviate a significant risk that he should have
16
perceived but did not, while no cause for commendation, cannot
17
under our cases be condemned as the infliction of punishment.”
18
Id. at 838.
19
Farmer did not address deliberate indifference for pretrial
20
detainees under the Due Process Clause of the Fourteenth
21
Amendment. Following Farmer, this Court seven years ago in
22
Caiozzo, 581 F.3d at 66, discerned two lines of Fourteenth
23
Amendment deliberate indifference authority in this Circuit: one
24
that applied an objective standard and another that applied a
35
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1
subjective standard. Caiozzo resolved the intra-circuit
2
divergence, holding that the same subjective standard for
3
deliberate indifference claims under the Eighth Amendment’s
4
Cruel and Unusual Punishments Clause should apply to deliberate
5
indifference claims under the Fourteenth Amendment’s Due Process
6
Clause, which the Court reasoned was “a logical extension of the
7
principles recognized in Farmer.”9 Id. at 71. This Court
8
explained that this Court’s jurisprudence for claims brought
9
under the Eighth Amendment had generally mirrored this Court’s
10
jurisprudence for claims under the Fourteenth Amendment. See id.
11
(citing Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000)).
12
Relying on the analysis of the Court of Appeals for the Fifth
13
Circuit in Hare v. City of Corinth, Mississippi, 74 F.3d 633
14
(5th Cir. 1996) (en banc), this Court highlighted that the
15
Supreme Court had given no indication that pretrial detainees
16
should be treated differently from their post-conviction
17
counterparts. See Caiozzo, 581 F.3d at 71-72 (quoting Hare, 74
18
F.3d at 649). This Court also noted that the majority of the
9
Caiozzo, 581 F.3d at 68, involved a claim for deliberate
indifference to medical needs under the Fourteenth Amendment.
Nevertheless, the Court’s interpretation of “deliberate
indifference” applied to any pretrial detainee claim for
deliberate indifference to “serious threat to . . . health or
safety”---such as from unconstitutional conditions of
confinement, or the failure-to-protect---because deliberate
indifference means the same thing for each type of claim under
the Fourteenth Amendment. See id. at 72.
36
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1
other Courts of Appeals had reached a similar conclusion. See
2
id. at 71 n.4 (collecting cases).
3
The Supreme Court’s decision in Kingsley v. Hendrickson,
4
135 S. Ct. 2466 (2015)---in which the Supreme Court concluded
5
that excessive force claims brought under the Fourteenth
6
Amendment do not require the same subjective intent standard as
7
excessive force claims brought under the Eighth Amendment---has
8
undercut the reasoning in Caiozzo.10 The issue before the Supreme
9
Court in Kingsley was whether “to prove an excessive force claim
10
[under the Fourteenth Amendment], a pretrial detainee must show
11
that the officers were subjectively aware that their use of
12
force was unreasonable, or only that the officers’ use of that
13
force was objectively unreasonable.” Kingsley, 135 S. Ct. at
14
2470 (emphasis added). Kingsley involved a pretrial detainee’s
15
allegations that prison officers, who had undisputedly
16
deliberately used force against the detainee (by using a Taser
17
to incapacitate him), had, in doing so, acted with excessive
18
force. See id.
19
20
Regarding the requisite mens rea for the officer’s use of
force against the detainee, the Court held “that a pretrial
10
See also Ross v. Correction Officers John & Jane Does 1-5, 610
F. App’x 75, 77 n.1 (2d Cir. 2015) (summary order). The panel in
Ross did not reach the implications of Kingsley because it
concluded that the defendant-official there was entitled to
qualified immunity, which resulted in the dismissal of the
plaintiff’s claims. See id.
37
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1
detainee must show only that the force purposely or knowingly
2
used against him was objectively unreasonable.”11 Id. at 2472-73.
3
The Court observed that, “[t]hus, the defendant’s state of mind
4
is not a matter that a plaintiff is required to prove.” Id. at
5
2472.
6
The Court reasoned that its interpretation of excessive
7
force claims under the Due Process Clause was consistent with
8
its prior precedents, including Bell v. Wolfish, 441 U.S. 520
9
(1979), where the Court had held that a pretrial detainee can
10
prevail on a claim brought under the Fourteenth Amendment
11
challenging “a variety of prison conditions, including a
12
prison’s practice of double-bunking” solely by proffering
13
objective evidence to show that the conditions were not
14
reasonably related to a legitimate, nonpunitive governmental
15
purpose. Kingsley, 135 S. Ct. at 2473 (citing Bell, 441 U.S. at
16
541-43). The Court found that the focus of Bell and its progeny
11
The Supreme Court in Kingsley framed its analysis by observing
that excessive force cases involve “two separate state-of-mind
questions. The first concerns the defendant’s state of mind with
respect to his physical acts—i.e., his state of mind with
respect to the bringing about of certain physical consequences
in the world. The second question concerns the defendant’s state
of mind with respect to whether his use of force was
‘excessive.’” Kingsley, 135 S. Ct. at 2472. The Court did not
address the first question because it was undisputed that the
officers had deliberately used force against the detainee by
purposefully and knowingly using the Taser on the detainee,
although the Court left open the possibility that the mental
state of recklessness might suffice for the first state-of-mind
question as well. Id.
38
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1
on punishment “does not mean that proof of intent (or motive) to
2
punish is required for a pretrial detainee to prevail on a claim
3
that his due process rights were violated” or that the
4
“application of Bell’s objective standard should involve
5
subjective considerations.”12 Id. at 2473-74 (collecting cases).
6
The Court also concluded that Eighth Amendment excessive
7
force jurisprudence did not control the standard for excessive
8
force claims under the Fourteenth Amendment. See id. at 2475
9
(finding that Eighth Amendment cases “are relevant here only
10
insofar as they address the practical importance of taking into
11
account the legitimate safety-related concerns of those who run
12
jails”). The Court stressed the different functions of the
13
Eighth Amendment’s Cruel and Unusual Punishments Clause and the
14
Fourteenth Amendment’s Due Process Clause:
15
16
17
18
19
20
21
22
The language of the two Clauses differs, and the
nature of the claims often differs. And, most
importantly, pretrial detainees (unlike convicted
prisoners) cannot be punished at all, much less
“maliciously and sadistically.” Thus, there is no need
here, as there might be in an Eighth Amendment case,
to determine when punishment is unconstitutional. Id.
(citations omitted).
12
A pretrial detainee can establish a due process claim for
inhumane conditions of confinement either by proving an
official’s deliberate indifference to those conditions, or by
proving that that those conditions are punitive. See Benjamin,
343 F.3d at 50. Kingsley and its precedents are clear that the
two theories of liability are distinct. Nothing about our
interpretation of the proper standard for deliberate
indifference for due process purposes should be construed as
affecting the standards for establishing liability based on a
claim that challenged conditions are punitive.
39
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1
2
Following the Supreme Court’s analysis in Kingsley, there
3
is no basis for the reasoning in Caiozzo that the subjective
4
intent requirement for deliberate indifference claims under the
5
Eighth Amendment, as articulated in Farmer, must apply to
6
deliberate indifference claims under the Fourteenth Amendment.
7
Caiozzo is thus overruled to the extent that it determined that
8
the standard for deliberate indifference is the same under the
9
Fourteenth Amendment as it is under the Eighth Amendment.13
10
Farmer is clear that “deliberate indifference” can be
11
viewed either subjectively or objectively. In the context of a
12
convicted prisoner asserting a violation of an Eighth Amendment
13
right to be free from cruel and unusual punishments, the Supreme
14
Court in Farmer defined deliberate indifference subjectively,
15
meaning that a prison official must appreciate the risk to which
16
a prisoner was subjected. The conditions of confinement were a
17
form of punishment, and, based on the Supreme Court’s
18
interpretation of the Cruel and Unusual Punishments Clause, the
19
prison official had to have subjective awareness of the
20
harmfulness associated with those conditions to be liable for
21
meting out that punishment.
22
23
After Kingsley, it is plain that punishment has no place in
defining the mens rea element of a pretrial detainee’s claim
13
This opinion has been circulated to all of the judges of the
Court prior to filing.
40
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1
under the Due Process Clause. Unlike a violation of the Cruel
2
and Unusual Punishments Clause, an official can violate the Due
3
Process Clause of the Fourteenth Amendment without meting out
4
any punishment, which means that the Due Process Clause can be
5
violated when an official does not have subjective awareness
6
that the official’s acts (or omissions) have subjected the
7
pretrial detainee to a substantial risk of harm.
8
Kingsley held that an officer’s appreciation of the
9
officer’s application of excessive force against a pretrial
10
detainee in violation of the detainee’s due process rights
11
should be viewed objectively. The same objective analysis should
12
apply to an officer’s appreciation of the risks associated with
13
an unlawful condition of confinement in a claim for deliberate
14
indifference under the Fourteenth Amendment. A pretrial detainee
15
may not be punished at all under the Fourteenth Amendment,
16
whether through the use of excessive force, by deliberate
17
indifference to conditions of confinement, or otherwise.
18
Therefore, to establish a claim for deliberate indifference
19
to conditions of confinement under the Due Process Clause of the
20
Fourteenth Amendment, the pretrial detainee must prove that the
21
defendant-official acted intentionally to impose the alleged
22
condition, or recklessly failed to act with reasonable care to
23
mitigate the risk that the condition posed to the pretrial
24
detainee even though the defendant-official knew, or should have
41
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1
known, that the condition posed an excessive risk to health or
2
safety. In other words, the “subjective prong” (or “mens rea
3
prong”) of a deliberate indifference claim is defined
4
objectively.
5
In concluding that deliberate indifference should be
6
defined objectively for a claim of a due process violation, we
7
join the Court of Appeals for the Ninth Circuit, which, sitting
8
en banc in Castro v. County of Los Angeles, 833 F.3d 1060, 1070
9
(9th Cir. 2016) (en banc), cert. denied, No. 16-655, 2017 WL
10
276190 (U.S. Jan. 23, 2017), likewise interpreted Kingsley as
11
standing for the proposition that deliberate indifference for
12
due process purposes should be measured by an objective
13
standard.14 The Court of Appeals for the Ninth Circuit concluded
14
that Kingsley’s broad reasoning extends beyond the excessive
15
force context in which it arose.15 See id. at 1069 (“The
14
Castro dealt with deliberate indifference in a failure-toprotect case, but---like this Court’s interpretation of
deliberate indifference, see note 9, supra---the interpretation
of deliberate indifference by the Court of Appeals for the Ninth
Circuit is equally applicable to a conditions of confinement
claim. See Castro, 833 F.3d at 1069-70 (overruling Clouthier v.
County of Contra Costa, 591 F.3d 1232 (9th Cir. 2010), which had
held that a subjective test applied to due process claims for
deliberate indifference to addressing serious medical needs);
Williams v. Fresno Cty. Dist. Attorney’s Office, No. 16-cv-00734
(DAD)(MJS), 2016 WL 5158943, at *4 (E.D. Cal. Sept. 20, 2016)
(applying Castro test to a due process claim for deliberate
indifference to conditions of confinement).
15
The defendants cite several decisions by other Courts of
Appeals that have continued to apply a subjective standard to
deliberate indifference claims for pretrial detainees after
42
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1
underlying federal right, as well as the nature of the harm
2
suffered, is the same for pretrial detainees’ excessive force
3
and failure-to-protect claims.”).
4
The defendants argue that using an objective standard to
5
measure deliberate indifference---a similar standard to the one
6
used before Caiozzo, see, e.g., Benjamin, 343 F.3d at 51; Liscio
7
v. Warren, 901 F.2d 274, 276 (2d Cir. 1990), overruled by
8
Caiozzo, 581 F.3d at 71---risks that officials that act with
9
mere negligence will be held liable for constitutional
10
violations. But any § 1983 claim for a violation of due process
11
requires proof of a mens rea greater than mere negligence.16 See
12
Kingsley, 135 S. Ct. at 2472 (“[L]iability for negligently
13
inflicted harm is categorically beneath the threshold of
14
constitutional due process.” (citation omitted)). A detainee
15
must prove that an official acted intentionally or recklessly,
Kingsley. But none of those cases considered whether Kingsley
had altered the standard for deliberate indifference for
pretrial detainees. See, e.g., Brown v. Chapman, No. 15-3506,
2016 WL 683260 (6th Cir. Feb. 19, 2016); Moore v. Diggins, 633
F. App’x 672 (10th Cir. 2015) (summary opinion); Mason v.
Lafayette City-Par. Consol. Gov’t, 806 F.3d 268 (5th Cir. 2015);
Smith v. Dart, 803 F.3d 304, 310 n.2 (7th Cir. 2015) (noting, in
light of Kingsley, that the parties argued the state of mind
element but that “it is not at issue in this appeal”).
16
The reckless or intentional action (or inaction) required to
sustain a § 1983 deliberate indifference claim must be the
product of a voluntary act (or omission) by the official. See
Farmer, 511 U.S. at 835 (observing that the word “deliberate” in
“deliberate indifference” might “require[] nothing more than an
act (or omission) of indifference to a serious risk that is
voluntary, not accidental” (citation omitted)).
43
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1
and not merely negligently. Indeed, pre-Caiozzo case law that
2
applied an objective standard was clear that officials could not
3
be found liable for negligent conduct. See, e.g., Liscio, 901
4
F.2d at 275.
5
The defendants also argue that the return to an objective
6
definition of deliberate indifference will open the flood-gates
7
to litigation. The argument is unpersuasive. Prior to Caiozzo,
8
some courts in this Circuit applied an objective standard for
9
deliberate indifference. Caiozzo chose to apply a subjective
10
standard to deliberate indifference because this Court thought
11
that it was more consistent with Farmer, not because of any
12
concerns that an objective standard would prompt the filing of
13
non-meritorious claims. Consistency with the Supreme Court’s
14
decision in Kingsley now dictates that deliberate indifference
15
be measured objectively in due process cases.
16
III.
17
A.
18
The District Court erroneously granted summary judgment for
19
the defendants on the basis that no jury could find that the
20
nine challenged conditions of confinement in this case,
21
considered together or separately, amounted to an objective
22
constitutional deprivation because no plaintiff could establish
23
a regular deprivation lasting more than twenty-four hours, or an
24
actual serious injury or sickness. However, the plaintiffs have
44
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1
adduced substantial evidence, much of it uncontroverted, that
2
they were subjected to appalling conditions of confinement to
3
varying degrees and for various time periods. While we recognize
4
that the District Court did not have the benefit of this Court’s
5
guidance in Willey, the plaintiffs’ claims should not have been
6
dismissed on the grounds that the conditions in this case did
7
not exceed ten to twenty-four hours, or result in serious
8
injury.
9
The District Court repeatedly stressed that the plaintiffs
10
were not regularly denied humane conditions of confinement:
11
“Plaintiffs only complain of such issues for a short period of
12
time—an average of ten to twenty-four hours—with nothing more.”
13
Cano, 119 F. Supp. 3d at 73; see also, e.g., id. at 75 (“[T]he
14
uncontroverted evidence establishes that no Plaintiff was
15
regularly deprived access to a toilet.”); id. at 77 (“Here, not
16
a single Plaintiff was exposed to urine, feces, and/or vomit for
17
anything more than a limited period of time because no Plaintiff
18
was held at BCB for more than one twenty-four hour period.”);
19
id. at 79 (“[T]here is no evidence that a single Plaintiff was
20
regularly denied any such toiletry during his or her stay at BCB
21
. . . .”). The District Court essentially ruled that no set of
22
conditions, no matter how egregious, could state a due process
23
violation if the conditions existed for no more than ten to
24
twenty-four hours. This was error. Willey, 801 F.3d at 68.
45
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1
The District Court also repeatedly stressed the lack of any
2
actual serious injury or illness in the case. See, e.g., Cano,
3
119 F. Supp. 3d at 82 (“Most Plaintiffs did not seek any sort of
4
medical treatment and none of the Plaintiffs provide evidence of
5
having suffered any long term physical or emotional harm due to
6
time spent in the BCB.”). In Willey, 801 F.3d at 68, this Court
7
rejected the argument that a plaintiff must prove a serious
8
injury in order to establish a constitutional violation due to
9
inhumane conditions of confinement.
10
The defendants argue that the District Court’s judgment
11
should be affirmed based on an assessment of the severity and
12
duration of the conditions at issue. They argue that Willey
13
supports their position given its admittedly more extreme facts.
14
They contend that those are the types of facts that constitute
15
an objective deprivation. They further contend that no plaintiff
16
in this case actually suffered a long term, grievous physical or
17
emotional injury, a not-so-subtle attempt to bring the standard
18
full circle back to evaluating objective deprivation by injury.
19
Ultimately, the defendants’ theory appears to be that state
20
officials are free to set a system in place whereby they can
21
subject pretrial detainees awaiting arraignment to absolutely
22
atrocious conditions for twenty-four hour periods (and perhaps
23
more) without violating the Constitution so long as nothing
24
actually catastrophic happens during those periods. That is not
46
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1
the law. As the District Court aptly stated in denying the
2
defendants’ motion to dismiss, “[o]ur Constitution and societal
3
standards require more, even for incarcerated individuals, and
4
especially for pretrial detainees who cannot be punished by the
5
state.” Cano, 44 F. Supp. 3d at 333. This Court’s cases are
6
clear that conditions of confinement cases must be evaluated on
7
a case-by-case basis according to severity and duration, and
8
instructs that a pretrial detainee’s rights are at least as
9
great as those of a convicted prisoner. Based on the record, the
10
gradation between the conditions of confinement at issue in this
11
case, and those at issue in Willey, may speak to damages, not
12
the absence of an objective constitutional deprivation.
13
14
B.
In addition, the District Court granted summary judgment to
15
the individual defendants because it concluded that the
16
plaintiffs could not establish that the individual defendants
17
had acted with subjective deliberate indifference, as opposed to
18
objective deliberate indifference. The District Court neither
19
analyzed Kingsley, nor had the benefit of our interpretation of
20
Kingsley as set forth in this opinion, which inures to the
21
benefit of the plaintiffs. The defendants argue that the
22
judgment should nevertheless be affirmed based on the standard
23
for deliberate indifference articulated here. The defendants’
24
argument should be addressed in the first instance by the
47
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1
District Court. The purported deliberate indifference of the
2
individual defendants must be assessed on an individualized
3
basis with respect to each plaintiff.17
4
C.
5
The District Court also erred in its application of the
6
well-settled standards for deciding a motion for summary
7
judgment. The District Court did not construe the evidence in
8
the light most favorable to the plaintiffs, nor did it draw all
9
reasonable inferences in their favor.
10
For example, the District Court justified the rejection of
11
the plaintiffs’ inadequate nutrition claims in part by noting
12
that plaintiff Vikki had “claimed that BCB served ‘wonderful
13
cheese and bologna sandwiches.’” Cano, 119 F. Supp. 3d at 80.
14
Although not reflected in the District Court’s opinion,
17
The defendants also argue on appeal that the plaintiffs have
failed to establish that the individual defendants had any
personal involvement in any of the challenged conditions of
confinement. As counsel for the defendants conceded at oral
argument, although the defendants raised the personal
involvement argument on their motion to dismiss, they did not
renew the argument in their motion for summary judgment. In
their summary judgment papers, the defendants only raised the
personal involvement argument with respect to the former First
Deputy Commissioner of the NYPD, Raphael Pineiro, who is no
longer a party to this action. See note 2, supra. The
defendants’ argument is accordingly not preserved for review and
deemed waived. See, e.g., Wal-Mart Stores, Inc. v. Visa U.S.A.,
Inc., 396 F.3d 96, 124 n.29 (2d Cir. 2005). In any event, the
plaintiffs’ claims against the individual defendants rely on the
evidence that the individual defendants personally toured BCB on
a daily basis, and were thus aware of the conditions at the
holding facility.
48
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1
plaintiff Vikki later clarified in her deposition that she did
2
not eat the sandwiches “[b]ecause the cheese was dry, the bread
3
was dry, and [she] wouldn’t feed it to [her] dog.” Construed in
4
the light most favorable to the plaintiffs, plaintiff Vikki’s
5
comment about “wonderful” sandwiches was sarcastic.
6
In another example, the District Court noted that plaintiff
7
Guarino had asked for a sanitary napkin to clean herself because
8
she was menstruating and “bleeding all over [her]self,” but the
9
District Court indicated that there was no proof that “any
10
officer at BCB acted with a sufficiently culpable state of
11
mind.” Id. at 84. This ignored plaintiff Guarino’s testimony
12
that, after repeatedly asking for a sanitary napkin, she only
13
desisted because she observed an officer threaten another
14
detainee with delayed arraignment if that detainee made any
15
additional requests.
16
Moreover, the District Court discounted as a mere matter of
17
preference the plaintiffs’ testimony that toilets were unusable,
18
reasoning that the plaintiffs were not “denied access” to
19
toilets. Id. at 75-76. That frames the plaintiffs’ testimony far
20
too narrowly. The plaintiffs’ testimony was that the toilets (if
21
there were any toilet in the particular cell) could not be used
22
for bowel movements because the toilets lacked privacy, and
23
because the toilets were not kept in such a way that they could
24
reasonably be used. The plaintiffs’ theory is that the toilets
49
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1
were maintained by deliberately indifferent officers in such a
2
manner that they were unusable. It is not a reasonable inference
3
that the plaintiffs merely decided not to use the toilets,
4
especially when one plaintiff defecated in his pants, another
5
defecated without toilet paper, and a third had an anxiety
6
attack that required hospitalization because he was “holding
7
[his] bowel for about four hours.”
8
Contrary to the District Court’s ruling that the individual
9
defendants “establish[ed] [that] they responded reasonably to
10
any risk that existed,” see id. at 83-85, the evidence about
11
regularly scheduled cleanings and pest control visits, at best,
12
established that there are genuine disputes as to material facts
13
concerning the handling of sanitation issues at BCB. The fact of
14
thrice daily visits by cleaning crews, even if undisputed, would
15
not eliminate the force of the plaintiffs’ testimony that the
16
cleaning crews did not do what was needed to clean the cells, or
17
remedy the non-functioning toilets.
18
D.
19
The District Court also granted summary judgment for the
20
defendants on the grounds that the plaintiffs could not
21
establish a claim based on punitive intent; that the individual
22
defendants were entitled to qualified immunity; and that the
23
plaintiffs could not establish that the City had Monell
24
liability. In light of the foregoing rulings, we vacate these
50
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1
rulings as well, although we do not decide how those issues
2
should be decided using the proper standards, including the
3
standards for a due process claim for deliberate indifference to
4
the conditions of confinement described above.
5
With respect to the plaintiffs’ punitive intent theory, the
6
District Court should reconsider the dismissal of that theory in
7
light of the evidence of the objectively serious conditions of
8
confinement.
9
With respect to qualified immunity and Monell liability,
10
the District Court based its rulings solely on its finding that
11
no plaintiff could establish an objective due process
12
deprivation. Because we disagree with that conclusion, we vacate
13
the qualified immunity and Monell liability rulings, and remand
14
those issues for further consideration in light of this
15
opinion.18 See, e.g., Jova v. Smith, 582 F.3d 410, 418 n.4 (2d
16
Cir. 2009) (per curiam) (remanding the issue of qualified
17
immunity where the district court did not consider the question
18
in the first instance).
18
The parties dispute whether letters from the Correctional
Association of New York---which the defendants contend support
the conclusion that the individual defendants are entitled to
qualified immunity---are inadmissible hearsay. The District
Court never ruled on this issue and, because we do not reach the
qualified immunity issue, we do not reach the admissibility
issue.
51
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1
2
CONCLUSION
For the reasons explained above, the judgment is AFFIRMED
3
in part, and VACATED in part, and the case is REMANDED for
4
further proceedings consistent with this opinion.
52
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