Houston v. Cotter et al

Filing 125

ORDER denying 111 Motion for Summary Judgment; denying 113 Motion for Summary Judgment. For the reasons set forth herein, the Court denies the cross-motions for summary judgment in their entirety. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/27/2014. (Chipev, George)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 07-CV-3256 (JFB)(GRB)
_____________________

ROBERT HOUSTON,
Plaintiff,
VERSUS

THOMAS COTTER, JOHN WEISS, AND THE COUNTY OF SUFFOLK,
Defendants.
___________________
MEMORANDUM AND ORDER
March 27, 2014
___________________

justification for his placement and
maintenance on suicide watch, much less the
duration of his placement, and the tangible
conditions of his confinement. He asserts
that his treatment was the result of the
County’s deficient policy or custom,
whereby inmates could be kept on suicide
watch as punishment, with no meaningful
oversight, and for reasons other than
legitimate mental health concerns. Houston
seeks compensatory and punitive damages
pursuant to 42 U.S.C. §1983.

JOSEPH F. BIANCO, District Judge:
Plaintiff Robert Houston (“Houston” or
“plaintiff”) brings this action against
defendants Thomas Cotter (“Cotter”), John
Weiss (“Weiss”), and the County of Suffolk
(“the County”) (collectively, “defendants”)
pursuant to 42 U.S.C. § 1983.1 Houston’s
Fourteenth Amendment claim against the
County, at issue here, asserts that while
incarcerated at the Suffolk County
Correctional
Facility (“SCCF”)
and
following an assault by Cotter and Weiss,
corrections
officials
unconstitutionally
placed and maintained Houston on suicide
watch for two weeks—including eight days
after mental health professionals determined
that Houston was not a suicide risk. Houston
claims that there was no credible

The parties cross-move for summary
judgment pursuant to Federal Rule of Civil
Procedure 56. Defendants argue (1) plaintiff
should have filed his claim on or before
January 24, 2010, because he at least had
reason to know of the County’s policy or
custom by that time; and (2) regardless,
plaintiff did not suffer an atypical and
significant hardship in relation to the
ordinary incidents of prison life, because he
was on suicide watch for two weeks in
conditions minimally distinguishable from

1

Plaintiff originally also asserted claims against
Douglas Gubitosi, Arthur Thomas, and Gerard
Reynolds. Because the amended complaint only
brings claims against Cotter, Weiss, and the County,
the Court formally dismisses Gubitosi, Thomas, and
Reynolds from this action.

1

those on the disciplinary tier. Plaintiff
contends that (1) he could not have learned
of the County’s policy or custom until the
deposition of Dr. Thomas Troiano, a
psychiatrist, on July 13, 2011; (2) his
conditions of confinement gave rise to a
constitutional violation; and (3) the evidence
establishes
that
corrections
and
classifications officials regularly abuse their
discretion by using suicide watch to punish
difficult inmates. For the following reasons,
the Court denies the cross-motions for
summary judgment. There are genuine
issues of disputed fact that must be resolved
as to, inter alia, the statute of limitations
issue, whether SCCF deprived plaintiff of a
state-derived liberty interest when it placed
plaintiff on suicide watch in January 2007,
and whether a Suffolk County policy,
custom, or deliberate indifference caused
any resulting injury.
I.
A.

and Cotter and Weiss, then corrections
officers. (Pl. 56.1 ¶ 1; Def. 56.1 ¶ 12.)
Shortly after the altercation, Officer James
Zahn and Sergeant Gerard Reynolds moved
Houston to a holding pen. (Pl. 56.1 ¶ 3.)
Officer Robert Urban was the on-duty
holding pen officer. (Id.) At 9:10 a.m.,
Urban filled out a CF-11 form, which is
used to place inmates on suicide watch, for
Houston. (Id. ¶ 5.) At SCCF, any employee
can put an inmate on suicide watch by filling
out a CF-11. (Id. ¶ 7.) According to the CF11, Houston had said, “I wish I would have
died upstairs when I beat that cop[’]s ass. I
won’t stop beating cops till [sic] they kill
me.”4 (Id. ¶ 5.) Lieutenant John Krieg
signed the CF-11 on January 11, formally
placing plaintiff on suicide watch. (Id. ¶ 6.)
Plaintiff testified that he believes SCCF used
the suicide watch to cover up the assault and
as a punishment. (Def. 56.1 ¶¶ 6–8.)

BACKGROUND

Upon placing Houston on suicide watch,
SCCF took away Houston’s clothing and
required him to wear a suicide-safe garment:
a sleeveless smock made of coarse, tearresistant material and Velcro. (Id. ¶ 8.)
SCCF
officers—and
Houston—have
referred to the garment as a suicide “dress”
or “skirt.” (Id. ¶ 8; Houston Aff. ¶ 3.)
Plaintiff, like other suicide watch inmates,
could not wear underwear, socks, or any
other undergarment with the smock. (Pl.
56.1 ¶ 8.) SCCF then removed Houston to a
stripped cell in the Behavioral Modification
Housing Unit (“BMHU”). (Def. Counter

Factual Background

The Court takes the following facts from
the parties’ affidavits, depositions, exhibits,
and Rule 56.1 Statements of Fact. With
respect to each motion and the issues raised
therein, the Court construes the facts in the
light most favorable to the nonmoving
party.2 See Capobianco v. City of New York,
422 F.3d 47, 50 (2d Cir. 2005).
On January 11, 2007, an altercation
occurred between Houston, then an inmate
housed on the disciplinary tier at SCCF,3

yard. (Def. 56.1 ¶ 14.) They cannot order commissary
nor have certain items in their cell, such as a
television. (Id. ¶ 15.) They have access to medical
treatment, the law library, and food. (Id. ¶ 16.)

2

Although the parties’ Rule 56.1 statements contain
specific citations to the record, the Court cites to the
statements rather than to the underlying citations.
Unless otherwise noted, where a party’s Rule 56.1
statement is cited, that fact is undisputed or the
opposing party has not pointed to any contradictory
evidence in the record.

4

During his deposition, Urban could not remember if
plaintiff made this statement, but he testified that the
CF-11 form “[i]ndicates that that’s what I heard an
inmate state to me at that date and time.” (Urban
Dep. at 94:11–24.) Urban “interpreted that the inmate
wanted to die.” (Id. at 95:4–5.) Houston denies
making this statement. (Houston Aff. ¶ 3.)

3

Inmates on the disciplinary tier have restricted
privileges, such as a combined one half hour for a
shower and telephone call, and up to one hour in the

2

56.1 ¶ 9.) The cell contained a bare mattress
and a blanket made out of the same coarse
material as the smock, and corrections
officers situated immediately in front of the
Plexiglass
cell
window
constantly
5
supervised plaintiff. (Pl. 56.1 ¶ 9.) There
also is evidence that, the day after the
altercation, Weiss monitored Houston.6 (See
BMHU Logbook, Pl. Ex. 24 (showing Weiss
on shift on January 12).) According to the
County, suicide watch inmates have access
to the yard, a plastic spoon, a rubberized
pen, the law library, showers, razors, and
medical and mental health services. (See
Koelbel Dep. at 227:20–230:10.) Plaintiff,
however, claims that he had no showers,
telephone calls, prescription medications,
food, or access to the law library while in
BMHU. (Pl. Counter 56.1 ¶ 17.) It is unclear
whether plaintiff suffered these conditions
while on suicide watch (see id. ¶ 18 (noting
that conditions on suicide watch differ from
conditions in BMHU)), because plaintiff’s
Rule 56.1 Statement does not make such
representations.

2007. (Pl. 56.1 ¶ 11.) SCCF medical
personnel, however, found no medical basis
for Houston to remain on suicide watch as of
January 16. Specifically, Dr. Troiano noted
that Houston was alert, verbal, coherent, and
with no signs of mental illness. (January 16
Progress Notes, Pl. Ex. 17.) James Graziano,
a social worker, stated that Houston “does
not appear suicidal and will be removed
from suicide watch.” (Id.) For unknown
reasons, an unknown individual overruled
the recommendation to remove Houston
from suicide watch. (See Def. Counter 56.1
¶ 12.) On January 21, Nurse Practitioner
Jane Frith saw Houston, noted that he “states
he was [discontinued] from SW [on]
0111607,” and contacted classification.
(January 21 Progress Notes, Pl. Ex. 18.)
Houston remained on suicide watch. On
January 24, Dr. Troiano and Graziano saw
Houston again, noted that he continued to
deny “suicidal ideations,” and stated that
they would “write another slip attempting to
remove him from suicide watch.” (January
24 Progress Notes, Pl. Ex. 19.) Houston left
suicide watch on January 24.7

Dr. Troiano observed Houston on
January 11 and noted that Houston was “on
SW for reasons unknown; apparently he had
confrontation w 2 officers today; doesn’t
appear suicidal and he denies he is – will
remain on sw for now.” (January 11
Progress Notes, Pl. Ex. 30.) Plaintiff
remained on suicide watch for fourteen
days, from January 11 until January 24,

7

According to plaintiff’s expert, Jorge Baez, Houston
remained on suicide watch for more days after a
recommendation to remove than ninety-five percent
of other inmates who received such a
recommendation. (Pl. 56.1 ¶ 14.) Baez’s analysis,
however, takes into account an earlier period in
November 2006 when a mental health professional
recommended that Houston be removed from suicide
watch the day he was assigned to suicide watch. (See
Baez Expert Report ¶ 10.) Plaintiff, however, does
not challenge the constitutionality of that
confinement. It is unclear what impact the additional
days from the November 2006 period have on the
analysis as it relates to the days of confinement in
early 2006, which are at issue in this case.

5

According to John Koelbel, the County’s Rule
30(b)(6) witness, the constant supervision ensures
that an inmate “doesn’t kill himself.” (Koelbel Dep.
at 158:14–17.)
6

When asked if SCCF had any policy that would
allow a corrections officer involved in an altercation
with an inmate to supervise that inmate on suicide
watch, Koelbel stated: “That would be at the
discretion of the duty lieutenant, but I’ll tell you right
now that wouldn’t happen. . . . It’s common sense.”
(Koelbel Dep. at 234:4–18.) There is no evidence that
Weiss observed Houston again.

Baez also found that inmates in disciplinary housing
who are on suicide watch remained on suicide watch
an average of 3.5 times longer than inmates not in
disciplinary housing. (Id. at 2; ¶¶ 22–24.) The median
inmate on the fourth floor (disciplinary) remained on
suicide watch almost four times longer than the
median inmate on the second floor (non-

3

The New York State Sheriff’s
Association (“NYSSA”), which accredits
SCCF, requires annual in-service training on
suicide prevention.8 (Pl. 56.1 ¶ 17.) NYSSA
Standard 107 states, inter alia, that “matters
of medical, mental health, and dental
judgment are the sole province of the
responsible clinicians.” (Id. ¶ 18.)
Nevertheless, classifications officers at
SCCF have the authority and complete
discretion to remove inmates from suicide
watch. (Id. ¶ 15.) Plaintiff has also presented
evidence that, based on an interview with
inmates that lasts a few minutes, during
which no mental health practitioner is
present, classifications officers can override
a mental health professional’s conclusion
that an inmate should be removed from
suicide watch.9 (Id.) The officers do not
need supervisory approval or to document
their rationale. (Id.) In making the decision
to continue or remove an inmate from
suicide watch, classifications officers do not
have access to an inmate’s mental health
history, progress notes, or counseling
sessions. (Id.) The officers also receive no
post-academy training in suicide prevention
or formal training regarding how to evaluate
an inmate to determine if he or she should
be removed from suicide watch. (Id. ¶ 16.)
B.

Reynolds on July 26, 2007. Defendants
answered on September 19, 2007. Plaintiff
requested counsel on November 16, 2009,
and the Court denied that motion on
November 23, 2009. Counsel was appointed
in December 2010, after the case was to
proceed to trial on the excessive force claim.
After additional discovery, plaintiff filed
an amended complaint on December 16,
2013, alleging, inter alia, that the County
“knowingly enforced a policy or custom
whereby classification officers were
permitted to and did overrule, without
justification, directives of mental health
professionals that an inmate be removed
from suicide watch,” and “knowingly
enforced a policy or custom whereby
classification officers kept inmates from
suicide watch for reasons other than
legitimate mental health concerns, which
reasons include to punish an inmate.”
(Amended Complaint ¶¶ 92–93.) After the
Court denied defendants’ motion to dismiss
on August 10, 2012, defendants answered on
September 10, 2012.
Defendants moved for summary
judgment on July 26, 2013. Plaintiff filed his
cross-motion for summary judgment and his
opposition on September 6, 2013.
Defendants filed their reply to plaintiffs’
opposition and their opposition on October
4, 2013. Plaintiff replied on October 21,
2013. The Court held oral argument on
November 1, 2013. The Court has fully
considered the submissions of the parties.

Procedural Background

Plaintiff, proceeding pro se, filed the
complaint alleging excessive force by
Cotter, Weiss, Gubitosi, Thomas, and
disciplinary): eleven days versus three days. (Id. at
2.) This statistical comparison is based upon a total of
692 inmates on the second floor, versus 22 inmates
on the fourth floor. (See id. ¶ 23.)

II.

STANDARD OF REVIEW

Pursuant to Federal Rule of Civil
Procedure 56(a), a court may grant a motion
for summary judgment only if “the movant
shows that there is no genuine dispute as to
any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); Gonzalez v. City of Schenectady,
728 F.3d 149, 154 (2d Cir. 2013). The

8

NYSSA accredited and certified SCCF in 2005, and
re-certified SCCF in 2013. (Def. Counter 56.1 ¶ 17.)
9

For instance, an inmate may be returned to suicide
watch despite a recommendation to remove because
upon being interviewed, the inmate will tell a
classification officer that she remains suicidal. (Def.
Counter 56.1 ¶ 15.)

4

granted.” 477 U.S. at 249–50 (citations
omitted). Indeed, “the mere existence of
some alleged factual dispute between the
parties will not defeat an otherwise properly
supported motion for summary judgment.”
Id. at 247–48 (emphasis in original). Thus,
the nonmoving party may not rest upon
mere conclusory allegations or denials but
must set forth “‘concrete particulars’”
showing that a trial is needed. R.G. Grp.,
Inc. v. Horn & Hardart Co., 751 F.2d 69, 77
(2d Cir. 1984) (quoting SEC v. Research
Automation Corp., 585 F.2d 31, 33 (2d Cir.
1978)). Accordingly, it is insufficient for a
party opposing summary judgment “‘merely
to assert a conclusion without supplying
supporting arguments or facts.’” BellSouth
Telecomms., Inc. v. W.R. Grace & Co., 77
F.3d 603, 615 (2d Cir. 1996) (quoting
Research Automation Corp., 585 F.2d at
33).

moving party bears the burden of showing
that he or she is entitled to summary
judgment. Huminski v. Corsones, 396 F.3d
53, 69 (2d Cir. 2005). “A party asserting that
a fact cannot be or is genuinely disputed
must support the assertion by: (A) citing to
particular parts of materials in the record,
including
depositions,
documents,
electronically stored information, affidavits
or declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The court “is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted if “the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).

III.

DISCUSSION

Plaintiff claims the County violated his
constitutional rights under 42 U.S.C. § 1983
by unlawfully depriving him of his liberty
interest without due process of law through
“[t]he stigma and humiliation that [he]
experienced as a result of his placement and
stay on suicide watch”; “the mere tangible
conditions of his confinement”; and because
“[t]here was neither a credible justification
for his initial placement on suicide watch,
nor a reasonable explanation for the eightday period during which he was kept on
suicide watch against the advice of mental
health personnel.” (Pl. Motion, at 2.)

Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts . . . . [T]he nonmoving party must
come forward with specific facts showing
that there is a genuine issue for trial.’”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (alteration and emphasis in
original) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574,
586–87 (1986)). As the Supreme Court
stated in Anderson, “[i]f the evidence is
merely colorable, or is not significantly
probative, summary judgment may be

To state a claim under Section 1983, a
plaintiff must allege: (1) the deprivation of
any rights, privileges, or immunities secured
by the Constitution and laws, (2) by a person
acting under the color of state law. 42
U.S.C. § 1983; see also Snider v. Dylag, 188
F.3d 51, 53 (2d Cir. 1999). Section 1983
does not itself create substantive rights; it
5

offers “a method for vindicating federal
rights elsewhere conferred.” Patterson v.
Cnty. of Oneida, 375 F.3d 206, 225 (2d Cir.
2004). Further, to hold a municipality liable
under Section 1983, a plaintiff must show:
“(1) an official policy or custom that (2)
causes the plaintiff to be subjected to (3) a
denial of a constitutional right.” Torraco v.
Port Auth. of N.Y. & N.J., 615 F.3d 129, 140
(2d Cir. 2010) (citations omitted); see also
Monell v. Dep’t of Social Servs., 436 U.S.
658, 694 (1978).

Court, in which he said he was “obviously
being punished” through his placement on
suicide watch. (Def. Motion, at 5–6.)
Plaintiff counters that he had no reason to
know of SCCF’s “suicide watch policy that
permitted officers to override the advice of
mental health professionals and use suicide
watch as punishment” until the deposition of
Dr. Troiano in 2011. (Pl. Opp., at 14–16.)
According to the Second Circuit, the
discovery rule is not always appropriate for
Monell claims. In Pinaud v. County of
Suffolk, 52 F.3d 1139 (2d Cir. 1995), the
court explained:

The Court first considers whether the
statute of limitations bars the Monell claim.
Because the Court concludes that there is, at
the least, a genuine issue of material fact as
the timeliness of plaintiff’s amendment, the
Court then proceeds to address the merits.
A.

Since an actionable claim
under § 1983 against a
county
or
municipality
depends on a harm stemming
from
the
municipality’s
“policy or custom,” a cause
of
action
against
the
municipality
does
not
necessarily accrue upon the
occurrence of a harmful act,
but only later when it is clear,
or should be clear, that the
harmful
act
is
the
consequence of a county
“policy or custom.”

Statute of Limitations

The statute of limitations for a Section
1983 claim arising in New York is three
years. See Lynch v. Suffolk Cnty. Police
Dep’t, Inc., 348 F. App’x 672, 674 (2d Cir.
2009). Although state law provides the
statute of limitations period, federal law
determines when § 1983 claims accrue. See
Wallace v. Kato, 549 U.S. 384, 388 (2007).
Under federal law, a § 1983 claim accrues
“when the plaintiff knows or has reason to
know of the injury which is the basis of his
action.” Pearl v. City of Long Beach, 296
F.3d 76, 80, 85 (2d Cir. 2002).

Id. at 1157 (internal citation omitted). Thus,
a Section 1983 claim against a municipality
does not accrue until the plaintiff “knew
about, or at least had reason to know about,
the policy or custom” upon which she bases
the claim.10 Id.; see also Facciolo v. City of

The County asserts that plaintiff’s
Monell claim accrued no later than January
24, 2007, when Houston was removed from
suicide watch. The County argues that
plaintiff knew, or at least had reason to
know, of the custom or policy that allegedly
underlies his injury because of his
(1) deposition testimony that he believed in
January 2007 that he was put on suicide
watch as a punishment and to cover up the
assault; and (2) August 2007 letter to the

10

Other circuits reject this rule. For instance, in the
Third Circuit, “[t]he discovery rule does not delay the
running of the statute of limitations until a plaintiff is
aware of all the facts necessary to bring its cause of
action. Under the discovery rule, a claim accrues
upon awareness of the actual injury, not upon
awareness that the injury constitutes a legal wrong.”
New Castle Cnty. v. Halliburton NUS Corp., 111
F.3d 1116, 125 (3d Cir. 1997); see also Tengood v.
City of Philadelphia, --- F. App’x ---, 2013 WL

6

New York, No. CV-09-1332 (DGT)(JMA),
2010 WL 3155251, at *5 (E.D.N.Y. Aug. 6,
2010); Ruiz v. Suffolk Cnty. Sheriff’s Dep’t,
03-CV-3545, 2008 WL 4516222, at *2
(E.D.N.Y. Oct. 2, 2008). Nevertheless, the
limitations period for a cause of action
against a municipality cannot “run[] anew
upon the future discovery of facts
tangentially related,” rather than sufficiently
related, “to a Monell claim.” Lawson v.
Rochester City Sch. Dist., 446 F. App’x 327,
329 (2d Cir. 2011) (affirming holding that
discrimination claims were untimely
because plaintiff’s delayed accrual argument
relied upon “subsequent events” that were
“insufficiently related to the adverse
employment action to form the basis for a
determination that” claims were timely); see
Ruiz, 2008 WL 4516222, at *2 (reasoning
that delayed accrual was appropriate where
plaintiff could not have learned of facts
underlying Monell claim that improper
hiring practices led to use of excessive force
upon inmates until corrections officers
testified that they were hired despite having
failed psychological test required to become
corrections officers).11

Applying the “delayed accrual” theory
and viewing the evidence and drawing all
inferences in the light most favorable to
Houston, the Court concludes that a genuine
issue of material fact exists with respect to
whether plaintiff knew or should have
known of the County’s policy or custom
before January 24, 2010. Therefore, the
Court cannot grant summary judgment to the
County on statute of limitations grounds.
See Eagleston v. Guido, 41 F.3d 865, 871
(2d Cir. 1994) (citing Santiago Hodge v.
Parke Davis & Co., 909 F.2d 628, 633 (1st
Cir. 1990)) (noting, in a Section 1983 case,
that “in some circumstances, factual issues
related to statute of limitations should be put
before a jury”); Santiago Hodge, 909 F.2d at
633 (stating that jury must determine
whether plaintiffs had sufficient knowledge
to trigger statute of limitations because
determining when they knew of injury and
its connection with defendant’s actions was
question of fact); see also Fowler v. Land
Mgmt. Groupe, Inc., 978 F.2d 158, 162 (4th
Cir. 1992) (“In general, issues of fact
bearing on the application of a statute of
limitations are submitted, as are other issues
of fact, for determination by the jury.”);
Braune v. Abbott Labs., 895 F. Supp. 530,
556 (E.D.N.Y. 1995) (“Statutes of
limitations problems raised in complex cases
such as the instant one often present factual
disputes appropriate for jury resolution. It is

2933747, at *4 n.5 (3d Cir. 2013) (“There is also no
basis in our precedent for applying such a ‘delayed
accrual’ theory.”).
11

In Lawson, a summary opinion, the Second Circuit
noted that the language in Pinaud is “demonstrably
dictum.” 446 F. App’x at 329. Notwithstanding that
caution from Lawson, this Court still looks to the
dictum in Pinaud for guidance, and chooses to follow
that dictum in assessing the current state of the law in
the Second Circuit on this issue. The Court also notes
that the situation in Lawson is distinguishable from
the instant case. The district court in Lawson found
that the plaintiff’s racial discrimination claims
centered on his disparate treatment claim, and the last
actions the defendant took with respect to the
plaintiff’s employment that could reasonably be
factual support for the disparate treatment claim
occurred over four years before plaintiff filed his
racial discrimination claim. Lawson v. Rochester City
Sch. Dist., No. 07-cv-6544, 2010 WL 4174630, at *3
(W.D.N.Y. Oct. 22, 2010). The court reasoned that

any subsequent actions were not reasonably related to
the racial discrimination claims and, thus, could not
be the basis for determining timeliness. Id. By way of
contrast, here—as explained infra—a reasonable
factfinder could conclude that Houston’s Monell
claim arises from Dr. Troiano’s testimony, and is not
entirely dependent on earlier events. Nothing in the
Lawson holding undermines a general rule that a
Monell claim may accrue at the time the plaintiff
learns or has reason to know of the existence of a
municipal policy or custom that caused the
underlying injury. That inquiry is obviously a factintensive inquiry that will depend upon the particular
circumstances of each case.

7

(August 8 Letter, Pl. Ex. 2, at MITCH 22
(emphasis in original).) Again, if this letter
is construed most favorably to plaintiff in
light of the entire record, a reasonable
factfinder could conclude that, although
Houston knew he was being punished, he
never thought that suicide watch was used to
punish other inmates, too. Houston never
mentions other inmates or SCCF practices.
Thus, plaintiff can argue, as in Ruiz, where
the plaintiffs discovered facts supporting an
independent Monell claim during the
deposition of actors involved in the
underlying harm, that defendants present no
facts clearly suggesting that, until 2011,
Houston knew or should have known of the
County’s potential involvement in the
underlying injury.12

settled, for example, that the date that a
plaintiff constructively discovered his or her
‘injury’ is a mixed question of fact and law
to be determined by the jury.”).
Defendants first point to plaintiff’s
testimony that he thought he was put on
suicide watch as a form of punishment and
cover up. If all the evidence is construed
most favorably to plaintiff, however, a
reasonable factfinder could conclude that,
although Houston thought he was on suicide
watch as a punishment, he did not know the
County had a policy of placing inmates on
suicide watch as a form of punishment.
Houston testified that he “didn’t know” that
the County had such a policy (Houston Dep.
at 154:23–155:10), and only found out about
a policy after Dr. Troiano’s deposition in
July 2011 (id. at 155:11–22). Dr. Troiano
testified that SCCF uses suicide watch as a
punishment in certain circumstances, and
that classification officers have the authority
to remove inmates from suicide watch and
sometimes disregard the advice of mental
health personnel regarding when to remove
an inmate from suicide watch. (Troiano Dep.
at 21:21-22:6, 78:12-24, 81:17-82:7.)

In short, based upon the evidence
contained in the record, the Court concludes
that there is a genuine issue of fact as to
whether plaintiff had no reason to know of
12

The County also argues that the claim must have
accrued because plaintiff knew, or should have
known, enough of the “critical facts” of the injury
and causation to protect himself by exercising
reasonable diligence and seeking legal advice. (Def.
Motion, at 4 (citing Guccione v. United States, 670 F.
Supp. 527, 536 (S.D.N.Y. 1998).) However,
knowledge of the “critical facts” of a claim means
“knowledge of, or knowledge that could lead to, the
basic facts of the injury, i.e., knowledge of the
injury’s existence and knowledge of its cause or of
the person or entity that inflicted it.” 670 F. Supp. at
536 (emphasis added) (citing United States v.
Kubrick, 444 U.S. 111, 122 (1979); Barrett v. United
States, 689 F.2d 324, 328 (2d Cir. 1982)). Although
Houston (as a pro se plaintiff) had taken no
depositions, served no interrogatories, and made no
document requests before the appointment of counsel
in 2010, there is a genuine issue of material fact as to
whether the record should have given plaintiff any
reason to suspect a policy or custom underlay his
confinement such that he had “a duty to inquire into
the possible existence of a claim in the exercise of
due diligence.” Kronisch v. United States, 150 F.3d
112, 121 (2d Cir. 1998) (noting that “[a] claim does
not accrue when a person has a mere hunch, hint,
suspicion, or rumor of a claim”).

Defendants next point to an August 2007
letter. Houston, then pro se, wrote:
I went down to Mental
Health again today & was
again cleared by Mental
Health doctor T who says
again Mental Health never
placed me on suicide watch
to begin with. So why am I
still on suicide watch? . . .
I’m obviously being punished
for som[e] reason. . . . Why
am I made to walk around the
jail in a suicide watch smok
[sic], cuffs & shackles? This
treatment is humiliating &
unconstitutio[nal].
8

the existence of the Monell claim until Dr.
Troiano’s deposition, such that the statute of
limitations did not accrue until 2011.
Accordingly, the Court denies summary
judgment to the County on statute of
limitations grounds.13
B.

conditions of confinement on suicide watch
imposed an atypical and significant hardship
on him in relation to the ordinary incidents
of prison life, such that it implicates his
state-derived liberty interest as described
under Second Circuit case authority.

Merits of Plaintiff’s Due Process
Challenge

1. Violation of a Protected Liberty
Interest

Plaintiff alleges that the County
unlawfully deprived him of his liberty
interest without due process of law by
“implementing a policy whereby corrections
officers were permitted to place and keep
[plaintiff] on restrictive and degrading
suicide watch without any reasonable basis,
solely as malicious retaliation, over the
contrary recommendations of mental health
professionals.” (Pl. Motion, at 9.) To prevail
on this procedural due process claim under
Section 1983, plaintiff must show that (1) he
possessed a protected liberty interest and (2)
the County deprived him of that interest as a
result of insufficient process. See, e.g., Arce
v. Walker, 139 F.3d 329, 333 (2d Cir. 1998)
(citing Ky. Dep’t of Corr. v. Thompson, 490
U.S. 454, 460 (1989)); Bedoya v. Coughlin,
91 F.3d 349, 351–52 (2d Cir. 1996).

Inmates’ liberty interests derive from
two sources: (1) the Due Process Clause
itself or (2) state statutes or regulations.
Arce, 139 F.3d at 333. The Supreme Court,
however, “has narrowly circumscribed [the
scope of the Due Process Clause itself] to
protect no more than the ‘most basic liberty
interests in prisoners,’” id. (quoting Hewitt
v. Helms, 459 U.S. 460, 467 (1983)),
limiting it to freedom from restraints that
“exceed[] the sentence in . . . an unexpected
manner,” Sandin v. Conner, 515 U.S. 472,
478 (1995). Thus, the Due Process Clause
does not protect against every change in the
conditions of confinement that has an
adverse effect on inmates, so long as the
change is “‘within the normal limits or range
of custody which the conviction has
authorized the State to impose.’” Arce, 139
F.3d at 333–34 (quoting Sandin, 515 U.S. at
484); see Sandin, 515 U.S. at 479 n.4
(observing that proscribed conditions of
confinement must be “qualitatively different
from the punishment characteristically
suffered by a person convicted of crime, and
[have] stigmatizing consequences” (citation
and internal quotation marks omitted));
Vitek v. Jones, 445 U.S. 480, 493 (1980)
(holding that “involuntary commitment to a
mental hospital” is outside the standard
range of conditions of confinement of a
prison sentence).

For the reasons discussed in detail
below, to the extent plaintiff argues that the
stigmatization
from
suicide
watch
automatically creates a liberty interest
arising directly under the Due Process
Clause any time a prisoner is placed on
suicide watch, the Court disagrees. The
Court concludes, however, based on the
record before it, that a genuine dispute of
material fact exists as to whether plaintiff’s
13

As noted supra, the proper procedure is not to
submit the legal question of the statute of limitations
to the jury; rather, the Court intends to utilize a
special verdict sheet that will allow the jury to decide
the disputed factual issue. Once the factual issue is
decided, the Court will rule on the statute of
limitations question as a matter of law.

State statutes and regulations also confer
liberty interests on prisoners. Arce, 139 F.3d
at 334. A prisoner’s confinement or restraint
violates a state liberty interest if it “imposes
9

[an] atypical and significant hardship on an
inmate in relation to the ordinary incidents
of prison life.”14 Palmer, 364 F.3d at 64
(quoting Sandin, 515 U.S. at 484).

“stigmatizing nature of suicide watch is
exactly the kind of qualitatively different
restraint that gives rise to a protected liberty
interest.” (Pl. Reply, at 7.) Under this theory,
any placement on suicide watch inherently
implicates the Due Process Clause because
of the stigmatization alone. The Court
disagrees as a matter of law.

Plaintiff claims that (1) his placement on
suicide watch exposed him to the
humiliation of erroneous mental health
confinement and thus violated his rights
under the Due Process Clause itself; and (2)
in the alternative, his confinement imposed
atypical and significant hardships compared
with normal prison life. The County
counters that nothing indicates Houston
endured unusual conditions on suicide
watch. The Court addresses each prong.

According to the Supreme Court, the
challenged restraint must “exceed[] the
sentence in such an unexpected manner . . .
to give rise to protection by the Due Process
Clause of its own force.” Sandin, 515 U.S. at
484. Thus, an inmate’s liberty interest is
implicated under the Due Process Clause
itself only when the conditions of
confinement are “qualitatively different”
from general prison conditions. Vitek, 445
U.S. at 493. In the mental health context,
courts have found violations of Due Process
Clause-derived interests where inmates are
involuntarily committed to a mental health
facility, with its attendant stigma and
compelled treatment, or are placed in a
facility or ward with similar characteristics.
See, e.g., id. at 493–94; United States v.
Frierson, 208 F.3d 282, 283 (1st Cir. 2008);
Nolley v. Cnty. of Erie, 776 F. Supp. 715,
737–38 (W.D.N.Y. 1991); see also Saunders
v. Gomez, No. 97-1728, 1998 WL 668178,
at *1 (9th Cir. Sept. 18, 1998) (reasoning
that hearing was necessary before inmate
was transferred to psychiatric management
unit at state medical facility); Warren v.
Harvey, 632 F.2d 925, 931 (2d Cir. 1980)
(“Next to the actual deprivation of liberty,
the greatest harm to a person erroneously
committed to a mental institution is the
stigma attached to the commitment.”
(emphasis
added)).
Standing
alone,
however, “changes in the conditions of
confinement having a substantial adverse
impact on the prisoner” are insufficient to
invoke the protections of the Due Process
Clause if the conditions are within the
sentence imposed. Vitek, 445 U.S. at 493.

a. Liberty Interest Arising Under the
Due Process Clause
According to plaintiff, placing him on
suicide watch violated his liberty interests
under the Due Process Clause because the
14

A prisoner also must show that the state created a
liberty interest before the prisoner can show that the
prison infringed that interest. Palmer, 364 F.3d at 64
n.2. The parties do not address this requirement, but
that is of no consequence. First, “New York state law
creates a liberty interest in not being confined to
[Special Unit Housing (“SHU”)].” Palmer, 364 F.3d
at 64 n.2 (citation and internal quotation marks and
alterations omitted). Second, to the extent there is a
question as to the applicability of cases about
disciplinary conditions, courts consistently apply
Sandin to disciplinary segregation, administrative
detention, and other forms of “discretionary
confinement” that are “within the range of
confinement to be normally expected” by a prisoner.
Nwaokocha v. Sadowski, 369 F. Supp. 2d 362, 373
(E.D.N.Y. 2005) (citation omitted); see also Arce,
139 F.3d at 335 (refusing to distinguish between
prison restraints imposed for disciplinary and
administrative purposes). Houston contends that his
suicide watch was an unjustified punishment, but he
does not argue that suicide watch cannot “be
normally expected” by a prisoner during confinement
or question courts’ application of the “atypical and
significant hardship” principle to suicide watch.
Thus, the state law requirement is met, and the SHU
segregation cases can guide the analysis.

10

consequences. Standing alone, however, the
stigmatization from being assigned to
suicide watch at a prison facility does not
make that classification “exceed[] the
sentence in such an unexpected manner . . .
to give rise to protection by the Due Process
Clause of its own force.” Sandin, 515 U.S. at
484; cf. Earl v. Racine Cnty. Jail, 718 F.3d
689, 691 (7th Cir. 2013) (“When an inmate
is placed in conditions more restrictive than
those in the general prison population,
whether through protective segregation like
suicide watch or discretionary administrative
segregation, his liberty is affected only if the
more restrictive conditions are particularly
harsh compared to ordinary prison life or if
he remains subject to those conditions for a
significantly long time.”).

In Vitek, the Supreme Court held that a
felon “is entitled to the benefit of procedures
appropriate in the circumstances before he is
found to have a mental disease and
transferred to a mental hospital.” Id. The
Court reasoned that “the stigmatizing
consequences of a transfer to a mental
hospital
for
involuntary
psychiatric
treatment” and “the subjection of the
prisoner to mandatory behavior modification
as a treatment for mental illness[] constitute
the kind of deprivations of liberty that
requires procedural protections.” Id. at 494.
In Frierson, the First Circuit explained that
“[i]nvoluntary commitment to a federal
medical center removes a prisoner from the
general prison population and attaches to
him or her a certain stigma.” 208 F.3d at
283. Thus, the court held that the inmateplaintiff should have been at his
commitment hearing before his involuntary
transfer to the mental hospital. Id. In Nolley,
decided before Sandin, the court considered
the confinement of an inmate in
administrative segregation in a female ward
for HIV+ and suicidal and psychologically
unstable inmates. 776 F. Supp. at 737. The
court found the confinement “qualitatively
different from the punishment normally
suffered by a person convicted of a crime”
because the inmate was housed in the ward
immediately upon entering the facility
during each of her three confinements, never
received any administrative review prior to
or during the confinements, and was subject
to stigma and to “the kinds of pressures an
inmate would face in a mental hospital.” Id.
at 737–38.

Plaintiff cites to no authority (and the
Court could not find any) holding that
placement on suicide watch, by itself,
violates a protected interest arising directly
under the Due Process Clause. See, e.g.,
Cherer v. Frazier, No. 2:06-CV-502-PMPLRL, 2007 WL 2406844, at *6 (D. Nev.
Aug. 16, 2007) (“Prisoners have no liberty
interest arising directly from the Fourteenth
Amendment Due Process clause in avoiding
a transfer to more adverse confinement
conditions.” (citing Meachum v. Fano, 427
U.S. 215, 224–25 (1976))), aff’d 465 F.
App’x 681 (9th Cir. 2012). More
importantly, plaintiff does not question that
“segregation on a justified suicide watch” is
“within the range of confinement to be
normally expected by a prisoner,” or that
prison officials should be “encouraged to
attend to mental health considerations rather
than being penalized for having done so.”
Nwaokocha, 369 F. Supp. 2d at 373 (noting
“the emotional and psychological challenge
that prison imposes on mentally ill inmates,
and the sometimes severe effects that can
result[—]including, but not limited to,
inmate suicides and harm to others”). Nor
does plaintiff—who does not claim that he

Viewing the facts and drawing
inferences in the light most favorable to the
County, the Court concludes that plaintiff
cannot establish the deprivation of a liberty
interest arising directly under the Due
Process Clause. The Court does not discount
that being on suicide watch stigmatized
plaintiff and, in general, engenders adverse
11

484). The court must look to the actual
punishment in making this determination.
Id. at 64 (citing Scott v. Albury, 156 F.3d
283, 287 (2d Cir. 1998)). Factors to aid in
determining whether the inmate endured an
“atypical and significant hardship” include
(1) the effect of the confinement on the
length of incarceration, (2) the extent to
which the conditions of the disciplinary
segregation differ from other routine prison
conditions, and (3) the duration of the
disciplinary segregation compared to
discretionary confinement. Palmer, 364 F.3d
at 64 (quoting Wright v. Coughlin, 132 F.3d
133, 136 (2d Cir. 2008)). The court may
resolve the issue of atypicality as a matter of
law only when the conditions are
uncontested. Id. at 65.

received no medical review before or during
his placement—more broadly argue that any
confinement to suicide watch must be
preceded by notice, an adversary hearing
before an independent decisionmaker, and
legal assistance, which are the typical
protections courts have required after
finding a liberty interest directly under the
Due Process Clause. See, e.g., Saunders,
1998 WL 668178, at *1. In addition, unlike
in Vitek, plaintiff never went to a separate
mental health facility. And unlike in Nolley,
there is no evidence from which a
reasonable factfinder could conclude that
plaintiff, while on suicide watch, was
“subject to the kinds of pressures an inmate
would face in a mental hospital.” See 776 F.
Supp. at 737–38 (reasoning that pressures
were similar because inmates repeatedly
tried to kill themselves, spoke in gruesome
detail about crimes, and ate out of garbage).

There is no bright-line rule that
establishes a length of disciplinary
confinement beyond which a due process
right is implicated. Id. According to the
Second Circuit, restrictive confinements of
fewer than 101 days, like plaintiff’s,
generally do not raise a liberty interest
warranting protection, but “could constitute
atypical and significant hardships if the
conditions were more severe than the normal
SHU conditions . . . or a more fully
developed record showed that even
relatively brief confinements under normal
SHU conditions were, in fact, atypical.” Id.;
see also Davis v. Barrett, 576 F.3d 129,
133–34 (2d Cir. 2009) (same). Thus, to
determine if an inmate confined to
disciplinary housing for a relatively short
period of time endured an “atypical and
significant hardship,” the court must
examine the conditions of confinement “in
comparison to the hardships endured by
prisons in general population, as well as
prisoners in administrative and protective
confinement, assuming such confinements
are imposed in the ordinary course of prison
administration.” Davis, 576 F.3d at 134
(quoting Welch v. Barrett, 196 F.3d 389,

Therefore, as a matter of law, plaintiff’s
stigmatization from the suicide watch did
not, in itself, create a liberty interest arising
directly under the Due Process Clause.
b. “Atypical and Significant Hardship”
The Court next considers whether
Houston’s experience on suicide watch
violated a state-derived liberty interest. As
set forth below, as in Palmer, there are
genuine issues of disputed fact in the instant
case regarding his conditions of confinement
that preclude this issue from being decided
on summary judgment.
i.

Legal Standard

A prisoner’s liberty interest is implicated
by a disciplinary or administrative
confinement only if the confinement
“imposes [an] atypical and significant
hardship on the inmate in relation to the
ordinary incidents of prison life.” Palmer,
364 F.3d at 64 (quoting Sandin, 515 U.S. at
12

As set forth below, the Court concludes
that it cannot resolve the issue of atypicality
at this juncture, because the conditions
plaintiff suffered are unclear. See Palmer,
365 F.3d at 65–66 (affirming denial of
summary judgment where prison detailed
“normal” SHU conditions but plaintiff’s
affidavit raised questions as to conditions
under which he was confined and how they
compared to those for general population).

392–93 (2d Cir. 1999)); see also Wheeler v.
Butler, 209 F. App’x 14, 16 (2d Cir. 2006)
(“If [the] conditions, taken in totality, were
especially harsh vis-à-vis both the
conditions in the segregated confinement
and in the general prison population, they
may violate a liberty interest despite the
comparative shortness of the confinement.”
(citation and internal quotation marks and
alterations omitted)). Absent a detailed
factual record, courts typically affirm
dismissals of due process claims where the
period of time spent in SHU was short—
e.g., thirty days—and there was no
indication of unusual conditions. E.g.,
Palmer, 364 F.3d at 66.
ii.

As a threshold matter, there is no
evidence that the confinement affected the
length of plaintiff’s incarceration. In
addition, the duration of plaintiff’s stay on
suicide watch does not in itself implicate a
liberty interest. See, e.g., Ortiz v. McBride,
380 F.3d 649, 654 (2d Cir. 2004) (reasoning
that with respect to “normal” SHU
confinement, 101-day confinement does not
meet Sandin standard of atypicality). The
Court nevertheless must compare plaintiff’s
suicide watch conditions with those in the
disciplinary tier and in the general
population. See, e.g., Earl, 718 F.3d at 691
(comparing conditions in “protective
segregation like suicide watch” to those in
“ordinary prison life” even where inmate
was “placed on suicide watch only for five
days, which generally is too short a time to
trigger due-process protection”). Even
assuming arguendo that the confinement
initially was a “justified suicide watch,”
Nwaokocha, 362 F. Supp. 2d at 373, nothing
in the record clearly establishes that the time
on suicide watch after January 16 was
“justified.” Thus, to limit the comparison to
suicide watch would insulate any purported
SCCF policy from judicial scrutiny because
plaintiff does not claim his suicide
conditions were “unusually harsh” compared
to those of other suicide watch inmates. As
discussed below, if plaintiff’s conditions on
suicide watch are compared to the general
prison population, or even compared to
those on the disciplinary tier (where plaintiff
was housed prior to the suicide watch), there

Application

According to plaintiff, his confinement
in suicide watch gave rise to a protected
liberty interest because, unlike inmates in
the general population, he was deprived of
all clothing and bedding except for a suicide
smock and a blanket made of similar
material; was subjected to constant
observation, including one day with Weiss;
remained on suicide watch for fourteen
days, including eight days after mental
health personnel recommended that he leave
suicide watch; and felt stigmatized and “less
than human,” especially because he knew he
was not suicidal. (Pl. Motion, at 21–23.) The
County counters that, because of the
duration of the suicide watch, the Court
must (1) consider whether plaintiff’s
conditions on suicide watch are unusual as
compared to the conditions normally
experienced by an inmate on suicide watch
or (2) compare plaintiff’s conditions to those
on SCCF’s disciplinary tier—where plaintiff
was housed before being placed on suicide
watch—and not to those in the general
population. (Def. Motion, at 9–10.) Under
either analysis, the County argues that the
confinement was constitutional.
13

are genuine issues of disputed fact based on
the current record as to whether the suicide
watch conditions were an “atypical and
significant hardship.”

“far inferior” to others and “atypical and
significant” because he was kept in SHU for
twenty-four hours a day, was not permitted
daily exercise, and was prevented from
showering “for weeks at a time”); Stewart v.
Armstrong, No. 98-60024, 1999 WL
152940, at *1, 3 (5th Cir. Feb. 19, 1999)
(affirming judgment for plaintiff where
prison afforded no due process before
officers took his underwear, shoes,
mattresses, sheets, blankets, mail, and
toiletries for twenty days; gave him a paper
gown to wear; and turned water off for
seventy-two hours); Erle v. Dominguez, No.
2:09-CV-88-TLS, 2011 WL 781528, at *1,
5–6 (N.D. Ill. Feb. 28, 2011) (denying
motion to dismiss where plaintiff alleged he
was naked and in cell for eleven days with
fecal matter and urine on walls, gusting air
conditions, and no mattress or cushion), with
Earl, 718 F.3d at 689 (finding no unusually
harsh conditions where inmate in suicide
watch for five days was given a mattress and
suicide-proof blanket, denied writing
materials, and had deputies assigned to
closely and personally monitor him to
ensure his safety); Reynolds v. Mattson, No.
2:07-CV-59, 2008 WL 2704750, at *1
(W.D. Mich. July 9, 2008) (finding no cruel
and unusual punishment where inmate was
handcuffed, stripped of clothing, not
allowed any bedding, and only wore suicide
prevention gown, even if such actions were
not for legitimate purpose).

Although the Second Circuit has not
“delineate[d] the precise contours of
‘normal’ SHU confinement,” it has noted
that, “ordinarily, SHU prisoners are kept in
solitary confinement for twenty-three hours
a day, provided one hour of exercise in the
prison yard per day, and permitted two
showers per week.”15 Ortiz, 380 F.3d at 655
(citing Palmer, 364 F.3d at 65 n.3; N.Y.
Comp. Codes R. & Regs. tit. 7, §§ 304.1–
.14, 305.1–.6). According to the County,
inmates on suicide watch have access to a
yard and the law library, a plastic spoon for
food, rubberized pens, showers, shaving,
razors, mail, and medical and mental health
services. (E.g., Koelbel Dep. at 227–30;
Krieg Dep. at 109–13.) Suicide watch
inmates have more restrictions to their
freedom, a suicide garment (a sleeveless
smock made of tear-resistant material and
Velcro) and blanket, a bare mattress in a
stripped cell, and constant supervision.
(Koelbel Dep. at 231:11–17.)
It is clear that whether these types of
conditions, in combination, are sufficient to
implicate a liberty interest is a very fact
intensive inquiry. Compare Palmer, 365
F.3d at 66 (finding genuine disputes as to
harshness of conditions despite short
confinement where inmate in SHU claimed
he was deprived of all property, was
mechanically restrained whenever he was
escorted, and could not correspond with
family); Ortiz, 380 F.3d at 655 (concluding
that plaintiff adequately alleged that
conditions during ninety days in SHU were

Moreover, plaintiff also asserts that,
while in the BMHU, he could not shower,
make telephone calls, keep food or drink,
have access to the law library, or receive
prescription medications. (See Pl. Counter
56.1 ¶ 17; August 8 Letter, at MITCH 21–23
(stating, inter alia, that he was denied these
items and was in cuffs and shackles).) He
also felt humiliated, degraded, and “less than
human” because of the stigmatization, other
inmates’ knowledge of his situation, Weiss’s

15

Plaintiff does not contend that his general
disciplinary tier conditions were unconstitutional.

14

presence,16 plaintiff’s knowledge that he was
not suicidal, and the fact that he remained on
suicide watch for eight days after mental
health personnel recommended removal.
Such facts, if proven in combination with
the other alleged conditions of confinement,
may distinguish plaintiff’s confinement from
that in Earl or Reynolds and render it “an
atypical and significant hardship” that
implicates a liberty interest protected by
state law. Cf. Sandin, 515 U.S. at 479 n.4
(giving
weight
to
“stigmatizing
consequences” of confinement). In addition,
the County points to no authority holding
that continued confinement in suicide watch
without justification, for allegedly punitive
reasons, is the “sort of confinement that
inmates should reasonably anticipate
receiving at some point in their
incarceration.” Hewitt v. Helms, 459 U.S.
460, 468 (1983).

is warranted in his favor on the Monell claim
because, according to him, “there is no
genuine question of material fact that while
Mr. Houston was incarcerated at Suffolk
County Correctional Facility (“SCCF”), he
was subjected to abusive treatment that rose
to the level of a constitutional violation.”
(Pl. Motion, at 1.) For the reasons set forth
supra and below, the Court disagrees and
concludes this claim cannot be resolved on
summary judgment.
A municipal entity may be held liable
under Section 1983 where the plaintiff
demonstrates that the constitutional violation
complained of was caused by a municipal
“policy or custom.” Monell, 436 U.S. at 694
(noting that municipal policy must be the
“moving force of the constitutional
violation”); see also Patterson, 375 F.3d at
226. “The policy or custom need not be
memorialized in a specific rule or
regulation.” Kern v. City of Rochester, 93
F.3d 38, 44 (2d Cir. 1996) (citing Sorlucco
v. N.Y.C. Police Dep’t, 971 F.2d 864, 870
(2d Cir. 1992)). Instead, constitutional
violations by government officials that are
“persistent and widespread” can be “so
permanent and well settled as to constitute a
custom or usage with the force of law, and
thereby generate municipal liability.”
Sorlucco, 971 F.2d at 870–71 (citing
Monell, 436 U.S. at 691) (internal quotation
marks omitted). In addition, a policy,
custom or practice of the entity may be
inferred where ‘“the municipality so failed
to train its employees as to display a
deliberate indifference to the constitutional
rights of those within its jurisdiction.’”
Patterson, 375 F.3d at 226 (quoting Kern,
93 F.3d at 44). Municipal training is
actionable where, “in light of the duties
assigned to specific officers or employees
the need for more or different training is so
obvious, and the inadequacy so likely to
result in the violation of constitutional
rights, that the policymakers of the

Therefore, given the factual disputes
regarding the precise conditions of
plaintiff’s comparatively short confinement,
it cannot be determined at this juncture
whether plaintiff endured unusually harsh
conditions that constituted an “atypical and
significant” deprivation under Sandin. Both
sides have provided sufficient evidence to
create genuine issues of disputed fact that
must be resolved a trial before such a
determination can be made. Accordingly,
the Court denies the cross-motions for
summary judgment on this ground.
c. Existence of a Municipal Policy,
Custom, or Deliberate Indifference
That Caused Plaintiff’s Injury
Plaintiff argues that summary judgment
16

To the extent that the parties dispute whether
Weiss observed Houston alone on January 12 (see
Def. Counter 56.1 ¶ 10), the material fact is that the
observation occurred after the altercation and before
medical personnel cleared Houston as non-suicidal.

15

Because plaintiff has failed to establish a
protected liberty interest as a matter of law
at this juncture, he cannot demonstrate on
summary judgment that constitutional
violations occurred pursuant to a custom or
policy at SCCF. See Mercado v. City of New
York, 08 Civ. 2855 (BSJ)(HP), 2011 U.S.
Dist. LEXIS 140430, at *26 (S.D.N.Y. Dec.
5, 2011) (because there was “no
independent,
underlying”
Eighth
Amendment violation, there was “no basis
for municipal or supervisory liability”). In
any event, although the County concedes the
existence of a custom or policy as to SCCF’s
general suicide watch practices (see Def.
Counter 56.1 ¶¶ 5, 7, 15, 16), there is
sufficient evidence to create genuine issues
of fact as to the existence of a policy or
custom of unjustifiably overriding mental
health recommendations and using suicide
watch to punish inmates for disciplinary
issues, deliberate indifference as to
deficiencies in any policy, and causation.17

[municipality] can reasonably be said to
have been deliberately indifferent to the
need.” City of Canton v. Harris, 489 U.S.
378, 390 (1989); see also Ortiz v. Goord,
276 F. App’x 97, 98 (2d Cir. 2008)
(“Defendants may be held liable under §
1983 if they . . . exhibited deliberate
indifference to a known injury, a known
risk, or a specific duty, and their failure to
perform the duty or act to ameliorate the risk
or injury was a proximate cause of
plaintiff’s deprivation of rights under the
Constitution.” (citation and quotation marks
omitted)).
The entity, however, is only liable where
the entity itself commits a wrong; “a
municipality cannot be held liable under
§ 1983 on a respondeat superior theory.”
Monell, 436 U.S. at 691; see also Segal v.
City of N.Y., 459 F.3d 207, 219 (2d Cir.
2006) (“Monell does not provide a separate
cause of action for the failure by the
government to train its employees; it extends
liability to a municipal organization where
that organization’s failure to train, or the
policies or customs that it has sanctioned,
led to an independent constitutional
violation.”).

i. Initial Classification
First, to the extent that plaintiff’s claim
is premised on SCCF’s initial removal of
inmates to suicide watch, the Court finds
genuine issues of material fact regarding the
nature of any policy and causation.

According to plaintiff, the County’s
policy or custom “enabled any SCCF
employee to put an inmate on suicide watch
as punishment with no meaningful
oversight, and allowed classifications
officers – not mental health professionals –
complete, unsupervised control over when
inmates were removed from suicide watch.”
(Pl. Motion, at 1.) Plaintiff also argues that
the County is deliberately indifferent to the
need for and lack of training of SCCF
officers with respect to suicide watch
because the need for more training is so
“obvious,”
especially
given
how
classifications officers govern suicide watch.
(Id. at 14–16.)

Plaintiff does not seriously challenge
SCCF’s use of a CF-11 form (see generally
Pl. Motion, at 11–17 (focusing on removal
from suicide watch)), mental health
personnel evaluate inmates as soon as
possible after removal (e.g., January 11
Progress Notes (taken on day of removal)),
and courts recognize that “it is important
that prison officials be encouraged to attend
17

To some extent, plaintiff’s theory assumes both a
policy with an underlying punitive motive, and a
policy of deliberate indifference to any purported
deficiencies in SCCF’s practices. The Court
considers both alleged policies.

16

overriding a removal order; (2) thirty-nine
percent of all inmates on suicide watch
remained on it for at least one day after a
removal recommendation; (3) inmates on
suicide watch who were also in disciplinary
housing were left on suicide watch on
average three-and-a-half times as long as
other inmates, especially if they were repeat
offenders; and (4) Dr. Troiano stated that
SCCF officers used suicide watch to punish.
(Pl. Motion, at 12–14.) The Court disagrees,
and again concludes that this issue cannot be
decided on summary judgment.

to mental health considerations rather than
be penalized for having done so,”
Nwaokocha, 369 F. Supp. 2d at 374. More
importantly, Baez’s report does not discuss
motive and only indicates that from 2006–
2007, 22 disciplinary tier inmates were on
suicide watch, and 692 general population
inmates were on suicide watch. (Baez
Expert Report ¶ 22.) In fact, there is no
evidence in the record about other inmates’
CF-11 forms or initial suicide watch
evaluations—including plaintiff’s November
2006 CF-11, that someone told Urban to
remove plaintiff to suicide watch as
punishment, or that Urban placed Houston
in suicide watch because of his reputation.
(Contra Pl. Reply, at 10 (arguing that there
is ample evidence that extended stay on
suicide watch was motivated by punishment
because, inter alia, plaintiff had reputation
for being difficult and officers used suicide
watch to punish difficult inmates).). Dr.
Troiano also did not recommend plaintiff’s
removal from suicide watch on January 11.

The County has argued that there are
gaps in plaintiff’s evidence and the
reasonable inferences that could be drawn
from that evidence. For instance, a
correlation between the amount of time an
inmate spends on suicide watch with that
inmate’s disciplinary status does not
necessarily show causation. See, e.g., Gilks
v. Olay Co., 30 F. Supp. 2d 438, 443
(S.D.N.Y. 1998) (“Mere use of the product
and subsequent injury . . . are not a sufficient
basis from which to infer causation.”). The
County notes that Baez did not consider why
an inmate is placed or kept on suicide watch,
and an inmate could be left on suicide watch
because she acts or says she is suicidal after
convincing
a
medical
professional
otherwise.

Thus, construing the evidence most
favorably to defendants, there is a sufficient
basis to create a dispute as to the propriety
of plaintiff’s or other inmates’ initial
removal to suicide watch, such that plaintiff
is not entitled to summary judgment on this
issue. Accordingly, at this juncture, the
Court cannot conclude as a matter of law
that SCCF’s initial classification policy
exists, is deficient, and injured plaintiff.
ii.

Further, the Court does not consider Dr.
Troiano’s testimony to be an “ample fact[]
concerning [inmates’] treatment at the hands
of [corrections officers] from which the jury,
in conjunction with the statistical evidence,”
could only infer that an intent to punish
resulted in prolonged confinement on
suicide watch. Sorlucco, 971 F.2d at 872
(explaining that small statistical sample, in
conjunction with other evidence, could
support
inference
of
discriminatory
practice). In other words, while a jury could
reasonably draw such an inference based on
the evidence in this case, it is not the only

Continued Confinement to Suicide
Watch

Second, Plaintiff argues that there is no
genuine dispute that SCCF has a policy to
ignore mental health professionals and use
suicide watch as a punishment, or is
deliberately indifferent to a need for suicide
training to avoid such decisionmaking,
because: (1) officers do not speak with
mental
health
professionals
before
17

supervise its employees. First, there is a
disputed factual issue as to whether the
statistics could not put the County on notice
of any deficiency in SCCF’s policy or
custom. Further, although plaintiff argues
that the training at SCCF failed to meet
industry standards in effect in 2007, NYSSA
accredited SCCF in 2005 and reaccredited it
in 2013. Moreover, at this juncture, there is
no basis to conclude that the suicide watch
policy inherently is unconstitutional in any
application, such as where there is clear
evidence of suicidal ideations or a
classification officer makes a reasonable
judgment based on an inmate’s conduct.18
Cf. Nwaokocha, 369 F. Supp. 2d at 373.

reasonable inference available. Counsel
asked Dr. Troiano whether “suicide watch is
ever used as a form of punishment.”
(Troiano Dep. at 81:17–18.) Dr. Troiano
answered “yes,” and when asked “in what
circumstances it’s used that way,” he
responded: “As in the case I just mentioned,
if somebody is manipulating a situation by
saying they’re suicidal when they’re not,
they might be left on after we’ve taken them
off. And when they get uncomfortable, they
might just be left on for an extra couple of
days.” (Id. at 81:21–82:5.) When asked if
officers communicate why they have
overridden him, Dr. Troiano said they do not
“ever tell [him] that it’s a matter of
punishment.” (Id. at 82:18–83:4.) Thus, he
knows it is a “punishment” because the
officers say, “This fellow’s been on and off,
on and off, on and off. We are keeping him
on. I interpret it to be that. They don’t say,
We are punishing him.” (Id. at 83:2–11.)
Thus, defendants could try to argue to the
jury, in conjunction with other evidence, that
Troiano’s definition of a “punishment”
really pertains to situations where an inmate
misleads mental health personnel and
classification officers regarding his or her
suicidal ideations, rather than a broader
disciplinary practice.

For similar reasons, there are genuine
disputes as to causation. There are no
documents as to who left plaintiff on suicide
watch, and why. The absence of any
documentary evidence, standing alone,
cannot establish plaintiff’s case beyond
question. Although there is sufficient
evidence in the record, if plaintiff’s evidence
is credited and all reasonable inferences are
drawn in plaintiff’s favor, to conclude that
plaintiff was placed and maintained on
suicide watch for punitive purposes pursuant
to a SCCF policy, that is not the only
reasonable inference from the facts,
especially if they are construed in the light
most favorable to defendants. In other
words, there is sufficient evidence in the
record to create a material issue of fact as to
whether the confinement was punitive—
placing it within the ambit of the alleged
policy—or the result of negligence—taking
it outside of the ambit of the alleged policy
or liability for deliberate indifference. See
Salahuddin v. Goord, 467 F.3d 263, 280 (2d
Cir. 2006) (“Deliberate indifference is a
mental state equivalent to subjective

In short, based upon the record, there is a
material question of fact as to whether there
is a policy to leave disciplinary tier or
general population inmates on suicide watch
as punishment and not for a legitimate
reason. Accordingly, the Court must deny
summary judgment to plaintiff because there
is a genuine dispute as to whether the
County had a custom or policy, or was
deliberately indifferent to a practice, to use
suicide watch as “malicious retaliation.”
Such disputed factual issues also
preclude a finding, at the summary judgment
stage, that the County was deliberately
indifferent to a need to further train or

18

Indeed, plaintiff does not challenge his 2006
suicide watch even though Dr. Troiano advised that
plaintiff be removed from suicide watch right away.

18

recklessness . . . . The reckless official need
not desire to cause such harm or be aware
that such harm will surely or almost
certainly result. Rather, proof of awareness
of a substantial risk of the harm suffices. But
recklessness entails more than mere
negligence; the risk of harm must be
substantial and the official’s actions more
than merely negligent.”); Hayes v. N.Y.C.
Dep’t of Corr., 84 F.3d 614, 620 (2d Cir.
1996) (in Eighth Amendment context,
explaining that to determine whether prison
official’s actions or omissions rise to
deliberate indifference requires plaintiff to
demonstrate, inter alia, that officials
possessed sufficient culpable intent).

Dated: March 27, 2014
Central Islip, NY
***
Plaintiff is represented by Christopher
Denicola,
Laura
Zuckerwise,
Sarah
Edwards, Stewart Dearing, and Victor Hou,
of Clearly Gottlieb Steen & Hamilton LLP,
One Liberty Plaza, New York, NY 10006.
Defendants are represented by Brian
Mitchell, Assistant County Attorney, Office
of the Suffolk County Attorney, 100
Veterans Memorial Highway, P.O. Box
6100, Hauppauge, NY 11788.

In sum, although plaintiff proffers
evidence and arguments that could establish
that a deficient municipal policy or custom,
or deliberate indifference, caused the
deprivation of his liberty interests without
due process in January 2007, the Court must
consider the facts and draw all reasonable
inferences in favor of the County at the
summary judgment stage. Under that
standard, there is sufficient evidence—and a
lack of evidence—to raise genuine issues of
material fact concerning the causes of
plaintiff’s confinement to suicide watch.
Accordingly, the Court denies summary
judgment to plaintiff on this ground as well.
IV.

CONCLUSION

For the foregoing reasons, the Court
denies the cross-motions for summary
judgment in their entirety.
SO ORDERED.

_______________________
JOSEPH F. BIANCO
United States District Judge
19