Cosme v. Faucher et al

Filing 21

For the reasons in the attached Ruling, Defendants' partial motion to dismiss, ECF No. 19 , is GRANTED. Count Four is dismissed. The case will proceed on Counts One, Two, and Three. Plaintiff is reminded of his obligation to identify Captains John and Jane Doe through discovery. Failure to do so by the conclusion of discovery, i.e., by June 3, 2022, will result in the dismissal of all claims against them. Signed by Judge Sarala V. Nagala on 5/10/22. (Marks, Joshua)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JUSTIN COSME,
Plaintiff,
v.
FAUCHER, et al.,
Defendants.

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Civil No. 3:21-cv-1341 (SVN)

May 10, 2022

RULING ON DEFENDANTS’ MOTION TO DISMISS COUNT FOUR
Sarala V. Nagala, United States District Judge.
Plaintiff Justin Cosme filed a complaint pro se, pursuant to 42 U.S.C. § 1983, asserting
claims for unconstitutional conditions of confinement and deliberate indifference to his health and
safety related to conditions at Brooklyn Correctional Institution during the COVID-19 pandemic.
ECF No. 1. He named five defendants: Warden Faucher, Deputy Warden Blanchard, Captain Jane
Doe, Captain John Doe, and Commissioner Cook. Following initial review, portions of Plaintiff’s
initial four claims remain: a conditions of confinement claim regarding conditions in the A-dorm
against defendants Faucher, Blanchard, and Captains John and Jane Doe (Count One); a conditions
of confinement claim regarding the gym against defendants Faucher and Blanchard (Count Four);
and two deliberate indifference to health claims against defendants Faucher, Blanchard, and
Captains Doe1 (Counts Two and Three). All remaining claims are alleged against the defendants
in their individual capacities only.
Defendants Faucher and Blanchard (hereinafter “Defendants”) move to dismiss the claim

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As Plaintiff has not provided the names of Captains John and Jane Doe, as required by ECF No. 8, service has not
been ordered on these individuals and they are not yet parties to the suit.

asserted in Count Four of the Complaint regarding conditions of confinement in the gym, on the
ground that Defendants are protected by qualified immunity. Although both the Court and
Defendants informed Plaintiff of his obligation to respond to the motion, no response was filed.
See ECF Nos. 19-2 and 20. For the following reasons, Defendants’ motion is granted.
I.

ALLEGATIONS OF COMPLAINT

Plaintiff alleges the following facts relating to the claim that is the subject of Defendants’
motion to dismiss. In June 2020, Plaintiff tested positive for COVID-19. ECF No. 1 ¶ 19. Plaintiff
was moved to the gym for quarantine for three days. Id. ¶ 20. He “lived on the floor,” was denied
showers, clean water to bathe, clean clothes and bedding, toilet paper, and hygiene products. Id.
¶ 21. There were approximately fifty inmates in the gym. Id.
II.

LEGAL STANDARD

To withstand a motion to dismiss filed pursuant to Federal Rule of Civil Procedure
12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. The plausibility standard is not a probability
requirement; the pleading must show, not merely allege, that the pleader is entitled to relief. Id.
Legal conclusions and “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements,” are not entitled to a presumption of truth. Id. “To state a plausible
claim, the complaint’s ‘[f]actual allegations must be enough to raise a right to relief above the
speculative level.’” Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014) (quoting
Twombly, 550 U.S. at 555). When reviewing a motion to dismiss, the court must accept

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allegations in the complaint as true and draw all reasonable inferences in the non-movant’s favor.
Id.
III.

DISCUSSION

In Count Four, Plaintiff contends that Defendants subjected him to cruel and unusual
punishment in violation of the Eighth Amendment by requiring him to live on the gym floor for
three days without showers, hygiene products, cleaning supplies, or recreation. Doc. No. 1 at 18.
The Court (Shea, J.), previously determined that the conditions alleged combined to implicate the
right to sanitary living conditions and permitted the claim to proceed past the initial review stage
for further development of the record. ECF No. 8; see 28 U.S.C. § 1915A. Defendants now argue
that they are protected by qualified immunity on this claim.
The doctrine of qualified immunity “protects government officials ‘from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In other words, qualified
immunity “affords government officials ‘breathing room’ to make reasonable—even if sometimes
mistaken—decisions.” DiStiso v. Cook, 691 F.3d 226, 240 (2d Cir. 2012) (quoting Messerschmidt
v. Millender, 565 U.S. 535, 546 (2012)). “The qualified immunity standard is ‘forgiving’ and
‘protects all but the plainly incompetent or those who knowingly violate the law.’” Grice v.
McVeigh, 873 F.3d 162, 166 (2d Cir. 2017) (quoting Amorev v. Novarro, 624 F.3d 522, 530 (2d
Cir. 2010)).
Qualified immunity may be asserted on a motion to dismiss because “qualified immunity
provides government officials ‘immunity from suit rather than a mere defense to liability.’”
Looney v. Black, 702 F.3d 701, 705 (2d Cir. 2012) (quoting Pearson, 555 U.S. at 231). A

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defendant asserting a qualified immunity defense on a motion to dismiss, however, must overcome
a “formidable hurdle,” McKenna v. Wright, 386 F.3d 432, 434 (2d Cir. 2004), as “‘the plaintiff is
entitled to all reasonable inferences from the facts alleged, not only those that support his claim,
but also those that defeat the immunity defense.’” Neary v. Wu, 753 F. App’x 82, 84 (2d Cir.
2019) (quoting McKenna, 386 F.3d at 436). A defense of qualified immunity will support a motion
to dismiss, therefore, only if the plaintiff cannot state any facts that would prevent application of
qualified immunity. McKenna, 386 F.3d at 436.
In considering whether a state official is protected by qualified immunity, the court must
determine (1) whether plaintiff has shown facts making out a violation of a constitutional right;
and (2) if so, whether that right was “clearly established.” See Ashcroft v. al-Kidd, 563 U.S. 731,
735 (2011).

The district court has the discretion to determine, in light of the particular

circumstances surrounding the case, which of the two prongs of the qualified immunity standard
to address first. See Johnson v. Perry, 859 F.3d 156, 170 (2d Cir. 2017) (quoting Pearson, 555
U.S. at 236). Here, Defendants focus on the second prong, so the court will exercise its discretion
and address that prong first.
Official conduct violates clearly established law “when, at the time of the challenged
conduct, the contours of a right are sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.” al-Kidd, 563 U.S. at 741 (internal punctuation
and quotation marks omitted). In the last several years, the Supreme Court has reiterated “the
longstanding principle that clearly established law should not be defined ‘at a high level of
generality,” but, rather, must be particularized to the facts of the case. White v. Pauly, 580 U.S.
73, 137 S. Ct. 548, 552 (2017) (internal quotation marks and citations omitted); see also City of
Escondido v. Emmons, ___ U.S. ___, 139 S. Ct. 500, 503 (2019) (“Under our cases, the clearly

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established right must be defined with specificity. ‘This Court has repeatedly told courts … not to
define clearly established law at a high level of generality.’”) (quoting Kisela v. Hughes, ___ U.S.
___, 138 S. Ct. 1148, 1152 (2018) (per curiam)). The legal principle at issue must “clearly prohibit
the officer’s conduct in the particular circumstances before him.” District of Columbia v. Wesby,
___ U.S. ___, 138 S. Ct. 577, 590 (2018); see also Grice, 873 F.3d at 166 (2d Cir. 2017) (“rights
are only clearly established if a court can ‘identify a case where an officer acting under similar
circumstances’ was held to have acted unconstitutionally”) (quoting White, 137 S. Ct. at 552).
However, it is not necessary to identify a decision squarely on point to defeat qualified immunity.
See Anderson v. Creighton, 483 U.S. 635, 640 (1987) (“That is not to say that an official action is
protected by qualified immunity unless the very action in question has previously been held
unlawful…but it is to say that in the light of pre-existing law the unlawfulness must be apparent.”).
In considering whether a right is clearly established, the Court must consider Supreme
Court and Court of Appeals cases and determine what a reasonable officer would understand in
light of that law. Terebesi v. Torreso, 764 F.3d 217, 231 (2d Cir. 2014); see Camreta v. Greene,
563 U.S. 692, 709 n.7 (2011) (“district court decisions—unlike those from the courts of appeal—
do not necessarily settle constitutional standards or prevent repeated claims of qualified
immunity”). Absent a “case of controlling authority” or “a consensus of cases of persuasive
authority,” the officers “cannot have been ‘expected to predict the future course of constitutional
law.’” Wilson v. Layne, 526 U.S. 603, 617 (1999).
Under the Eighth Amendment, prisoners have a right to sanitary living conditions and the
necessary items to maintain adequate personal hygiene. See Walker v. Schult, 717 F.3d 119, 127
(2d Cir. 2013) (citing cases for the proposition that “the failure to provide prisoners with toiletries
and other hygienic materials may rise to the level of a constitutional violation”). The Second

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Circuit has not, however, established “any bright-line durational requirement for a viable
unsanitary-conditions claim.” Willey v. Kirkpatrick, 801 F.3d 51, 68 (2d Cir. 2015). Instead, the
court explained that, whether unsanitary conditions of confinement rise to the level of a
constitutional violation “depends on both the duration and the severity of the exposure.” Id. The
court noted that an extreme exposure for a few moments could violate the Eighth Amendment and
that “a less severe exposure may be constitutionally permissible if rectified in short order but may
become cruel and usual with the passage of time.” Id.
Plaintiff alleges that he was placed in quarantine in response to the COVID-19 pandemic,
not as punishment. During his three days in quarantine, he claims he was denied showers, clean
water to bathe, clean clothes, clean sheets, toilet paper, and hygiene products. ECF No. 1 ¶ 21.
“To be cruel and unusual punishment, conduct that does not purport to be punishment at all must
involve more than ordinary lack of due care for the prisoner’s interests or safety.” Whitley v.
Albers, 475 U.S. 312, 319 (1986). A “deprivation of toiletries, and especially toilet paper, can rise
to the level of unconstitutional conditions of confinement....” Trammell v. Keane, 338 F.3d 155,
165 (2d Cir. 2003) (citations omitted). In Trammell, however, the court found that provision of
one roll of toilet paper for nine days and negligence in replenishing supply accompanied by
deprivation of “toiletries for approximately two weeks—while perhaps uncomfortable” did not
violate the Eighth Amendment. Id. Denial of toilet paper and soap for a temporary period
generally must be accompanied by other deprivations to constitute an Eighth Amendment
violation. See, e.g., Wright v. McMann, 387 F.2d 519, 521-22, 526 (2d Cir. 1967) (allegations that
plaintiff was without clothing and exposed to bitter cold in solitary confinement cell for eleven
days, that he was deprived of soap and toilet paper, that the cell was filthy, without adequate heat,
and barren of furniture except for a sink and toilet would, if established, constitute an Eighth

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Amendment violation).
The Court is unable to find any reported cases from the Supreme Court or Second Circuit
finding a constitutional violation for the denial of the listed items for only three days, even in a
non-pandemic context. The cases that do allow Eighth Amendment claims to proceed on the basis
of such deprivations are far more extreme. See, e.g., Walker, 717 F.3d at 126-28 (plaintiff alleged
that, for 28 months, he was “confined in a cell with five other men, with inadequate space or
ventilation, stifling heat in the summer and freezing cold in the winter, unsanitary conditions,
including urine and feces splattered on the floor, insufficient cleaning supplies, a mattress too
narrow for him to lie on flat, and noisy, crowded conditions that made sleep difficult and placed
him at constant risk of violence and serious harm from cellmates”); Wiley, 801 F.3d at 66 (plaintiff
alleged various periods of unsanitary conditions, including a fourteen-day period during which he
was allegedly kept naked and nearly a month in a cell with urine stains on the floor and fecal stains
on the walls and mattresses, which also smelled bad). And several district court decisions, while
not dispositive on the question of whether a right is clearly established, have found that deprivation
of a shower for periods significantly longer than three days do not show a sufficiently serious
deprivation to state an Eighth Amendment claim. See, e.g., Rogers v. Faucher, No. 3:18-cv-1809
(JCH), 2019 WL 1083690 at *5 (D. Conn. Mar. 7, 2019) (dismissing claim where inmate was not
allowed to shower for five days and four hours); McCoy v. Goord, 255 F. Supp. 2d 233, 260
(S.D.N.Y. 2003) (dismissing claim where inmate was not allowed to shower for two weeks);
Waring v. Meachu, 175 F. Supp. 2d 230, 241 (D. Conn. 2001) (dismissing claim where inmates
alleged denial of showers and clean clothing during seven-day lockdown period).
Absent a controlling decision suggesting that prison officials’ actions in a circumstance
similar to the one presented here are unconstitutional, the Court cannot find that the right Plaintiff

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claims was violated was clearly established. Thus, Defendants are protected by qualified immunity
on this claim. See Brown v. City of New York, 862 F.3d 182, 190 (2d Cir. 2017) (“No precedential
decision of the Supreme Court or this Court ‘clearly establishes’ that the actions of [the
defendants], viewed in the circumstances in which they were taken, were in violation of the Fourth
Amendment.”)
IV.

CONCLUSION

Defendants’ partial motion to dismiss, ECF No. 19, is GRANTED. Count Four is
dismissed. The case will proceed on Counts One, Two, and Three. Plaintiff is reminded of his
obligation to identify Captains John and Jane Doe through discovery. Failure to do so by the
conclusion of discovery, i.e., by June 3, 2022, will result in the dismissal of all claims against
them.

SO ORDERED at Hartford, Connecticut, this 10th day of May, 2022.
/s/ Sarala V. Nagala
SARALA V. NAGALA
UNITED STATES DISTRICT JUDGE

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