Cunningham v. The City of New York et al

Filing 139

OPINION AND ORDER: re: 115 MOTION for Summary Judgment filed by Rose Agro. For the above reasons, Defendant's motion for summary judgment is GRANTED. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 115 and close the case. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 3/27/2023) (ama) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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EMIR CUNNINGHAM,
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Plaintiff,
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-against:
ROSE AGRO, Former Warden Of Anna M. Kross
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Center,
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Defendant.
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x
ANDREW L. CARTER, JR., District Judge:

15-CV-1266 (ALC)
OPINION & ORDER

Plaintiff Emir Cunningham brings this action against Defendant Rose Agro, the former
Warden of the Anna M. Kross Center at Rikers Island, pursuant to 42 U.S.C. § 1983. Before the
Court is Defendant’s Motion for Summary Judgement. ECF No. 115. After careful consideration,
Defendant’s motion for summary judgment is GRANTED.

BACKGROUND
The Court assumes the parties’ familiarity with the facts and procedural background of
the case, which are more fully laid out in the Court’s Opinion and Order on the Motion to
Dismiss the Second Amended Complaint. See ECF No. 69. The only surviving claims from the
Second Amended Complaint of August 8, 2018 (ECF No. 43) are those against Rose Agro, the
former Warden of the Anna M. Kross Center (“AMKC”) on Rikers Island.
In short, these claims center around Plaintiff’s time at the AMKC, which began on or
about October 5, 2013 and ended on or about October 17, 2013. See Plaintiff’s Statement of

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Undisputed Facts, ECF No. 125, ¶ 17; ¶ 64. Plaintiff alleges that his then fiancé submitted a 311
complaint about the conditions of his incarceration on October 8, 2013. ECF No. 125, ¶¶ 37-41.
The 311 complaint was forwarded to Defendant Agro’s office on that same day. ECF No. 125, ¶
43; Ex. L. A response was sent on Ms. Agro’s behalf on October 11, 2013 to a number of
individuals who were likely Ms. Agro’s deputies, directing them to “investigate immediately and
report [their] findings to . . . this office today, October 11, 2013.” Id.
Plaintiff Emir Cunningham asserted claims for deliberate indifference, excessive force,
failure to intervene or protect, and civil conspiracy to violate civil rights in connection with his
period of incarceration at the Anna M. Kross Center (“AMKC”), a New York City Department
of Correction (“DOC”) facility. Following further proceedings in the case after the motion to
dismiss stage, Plaintiff dropped his claims for excessive force as to Defendant Agro. See
Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion for Summary Judgment.
ECF No. 123 at 18, n. 9.

LEGAL STANDARD
Under Fed. R. Civ. P. 56, summary judgment is proper where admissible evidence in the
form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a
genuine issue of material fact and one party's entitlement to judgment as a matter of
law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The moving party
has the burden “to demonstrate that no genuine issue respecting any material fact exists.” Gallo
v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994) (citing Heyman
v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)). A genuine issue of material
fact exists “if the evidence is such that a reasonable jury could return a verdict for the non-

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moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In deciding a
summary judgment motion, courts must construe the evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in its favor. Niagara Mohawk Power Corp.
v. Jones Chemical Inc., 315 F.3d 171, 175 (2d Cir. 2003) (citing Anderson, 477 U.S. at 255)).
Once the moving party meets its initial burden of demonstrating the absence of a genuine
issue of material fact, the non-moving party must come forward with “concrete particulars
demonstrating that trial is necessary.” R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77
(2d Cir. 1984); See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Ying Jing Gan v. City of
New York, 996 F.2d 522, 532 (2d Cir. 1993) (citing Fed. R. Civ. P. 56(e)). Although the Court
must view the facts in a light most favorable to the non-moving party, that party “must do more
than simply show that there is some metaphysical doubt as to the material facts.” Dister v. The
Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). See Delaware & Hudson Ry. v.
Consolidated Rail Corp., 902 F.2d 174, 176 (2d Cir.1990), cert. denied, 500 U.S. 928 (1991).
Thus, summary judgment cannot be defeated by drawing attenuated inferences, nor by relying
“on mere speculation or conjecture as to the true nature of the facts.” Knight v. U.S. Fire Ins.
Co., 804 F.2d 9, 12 (2d Cir. 1986), cert. denied, 480 U.S. 932 (1987). Rather, “[t]he plaintiff, to
avoid summary judgment, must show a genuine issue by presenting evidence that would be
sufficient, if all reasonable inferences were drawn in his favor, to establish the existence of that
element at trial.” Cornett v. Sheldon, 894 F. Supp. 715, 724 (S.D.N.Y. 1995) (citations omitted).
See Anderson, 477 U.S. at 248; R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997). In
so doing, plaintiff must produce evidence in the record and may not rely simply on conclusory

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statements or on contentions that the affidavits supporting the motion are not credible. See Wyler
v. United States, 725 F.2d 156, 160 (2d Cir. 1983).
To state a constitutional claim based on the conditions of confinement, a plaintiff must
establish “deliberate indifference to an objectively serious need.” See, e.g., Wilson v. Seiter, 501
U.S. 294, 297–98 (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976). First, the alleged
deprivation must be “sufficiently serious, in the sense that a condition of urgency, one that may
produce death, degeneration, or extreme pain[,] exists.” Hathaway v. Coughlin, 99 F.3d 550, 553
(2d Cir. 1996) (internal quotations omitted). This is commonly known as the ‘objective prong.’
To satisfy the objective prong, “a prisoner must prove that the conditions of his confinement
violate contemporary standards of decency.” Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir.
2002). “Because society does not expect or intend prison conditions to be comfortable, only
extreme deprivations are sufficient” to sustain such a claim. Blyden v. Mancusi, 186 F.3d 252,
263 (2d Cir. 1999). Second, the detainee must establish that the defendant acted with a culpable
state of mind under the so-called ‘subjective prong.’ Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir.
2017). The defendant must have acted intentionally, or “recklessly failed to act with reasonable
care to mitigate the risk” although the defendant “knew, or should have known, that the
condition posed an excessive risk to health or safety.” Id. at 35.

DISCUSSION
Potential Administrative Remedies Claims
The primary allegations in the Second Amended Complaint concerning Defendant are the
allegations that Plaintiff submitted a grievance to Defendant and that Plaintiff did not obtain any
resolution of his claims through DOC’s grievance process. Second Amended Complaint ¶ 65. At

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most, there was a period of approximately six days between the time that it appears Warden
Agro was aware of his complaints and the time he was transferred out of AMKC. Under these
circumstances, Plaintiff was transferred before any resolution of his claims was likely to occur,
and it was objectively reasonable for Defendant to believe that she had no constitutional
obligation to resolve Plaintiff’s claims after he had been transferred to another facility and any
issues concerning his detention at AMKC were rendered moot.
In addition, allegations that Defendant did not properly respond to grievance claims do
not violate any due process right. “[I]t is well-established that inmates do not have a protected
liberty interest in the processing of their prison grievances.” See Monroe v. Gerbing, 16-CV2818 (KMK), 2017 WL 6614625, at *14 (S.D.N.Y. Dec. 27, 2017). Further, “inmate grievance
programs created by state law are not required by the Constitution and consequently allegations
that prison officials violated those procedures does not give rise to a cognizable § 1983 claim.”
Njasang Nji v. Heath, 13-CV-200 (CM,) 2013 WL 6250298, at *6 (S.D.N.Y. Dec. 2, 2013).
Therefore, any claims based purely on an alleged ‘failure to respond’ theory or ‘failure to follow
DOC policies’ are unavailing.
The parties dispute whether Mr. Cunningham failed to exhaust his administrative
remedies at AMKC as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. §
1997e(a), or whether his failure to exhaust administrative remedies is excused. The record is
unclear on this matter, so the Court resolves it in favor of Plaintiff. As has been stated before in
this district, “[b]ecause nonexhaustion is an affirmative defense, a plaintiff is not required to
plead or demonstrate exhaustion in a complaint.” Seymore v. City of New York, No. 12 Civ.
6870, 2014 WL 1259563, at *3 (S.D.N.Y. Mar. 26, 2014) (citing Jones v. Bock, 549 U.S. 199,
212 (2007)). It follows that a claim should be dismissed for failure to exhaust only if

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‘nonexhaustion is clear from the face of the complaint, and none of the exceptions outlined by
the Second Circuit are germane.’” Martinez v. Schriro, No. 14 Civ. 3965 (KMW)(RLE), 2017
WL 87049, at *3 (S.D.N.Y. Jan. 9, 2017) (internal citations and quotations omitted). Defendant
fails to establish this affirmative defense, and therefore the Court does not reach the question of
whether Plaintiff properly utilized and exhausted AMKC/DOC’s administrative grievance
process.
Even assuming that the exhaustion requirement was excused or properly met, Plaintiff
has made no claim for deliberate indifference. Because the failure to follow the administrative
grievance process is not in and of itself a § 1983 claim, the Court now consider what appears to
be Plaintiff’s underlying claim – deliberate indifference to his needs while incarcerated.

Deliberate Indifference Claim: Medical Care
Plaintiff claims that he did not receive his medication for mental health conditions while
incarcerated at AMKC. Plaintiff’s Statement of Undisputed Facts, ECF No. 125, ¶¶ 27-31. He
also states that he was not seen by any medical professionals during his time at AMKC.
Plaintiff’s Deposition Tr. ECF No. 125, Ex. P, 190:22-192:15. However, Defendant disputes this,
citing to corrections medical records showing that plaintiff spoke with multiple medical
personnel during his stay at AMKC, including mental health counselors, physicians, and an
audiologist that provided him with a hearing aid. Defendant’s Statement of Undisputed Facts,
ECF No. 125, ¶¶ 9-14. Plaintiff claims that he does not recall these medical appointments and
makes generalized allegations that the records could have been falsified. These are not sufficient
to contradict voluminous health records from the time that Plaintiff was at AMKC. The Second
Circuit has held that a party cannot create a material dispute based purely on their own

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conclusory statements. A plaintiff must produce evidence in the record and may not rely “simply
on conclusory statements or on contentions that the affidavits supporting the motion are not
credible.” See Wyler v. United States, 725 F.2d 156, 160 (2d Cir. 1983). Plaintiff’s failure to
recall the medical appointments is not a sufficient basis for the Court to conclude that the
medical records have been falsified, or to create a factual dispute as to their veracity.
Further, even assuming that Plaintiff did not receive medical care for the time period he
was at AMKC, the record does not support a conclusion that the delay in his care was
sufficiently serious. Where a plaintiff alleges a delay in medical treatment (rather than the
outright denial of medical treatment), then the “sufficiently serious” inquiry focuses on the
challenged delay itself, rather than on the underlying condition alone. Salahuddin v. Goord, 467
F.3d 263, 280 (2d Cir. 2006). Thus, a short interruption of care, even if the underlying medical
condition is serious, does not constitute a serious medical need where “the alleged lapses in
treatment are minor.” Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003). “Although a delay
in providing necessary medical care may in some cases constitute deliberate indifference, [the
Second Circuit] has reserved such a classification for cases in which, for example, officials
deliberately delayed care as a form of punishment, ignored a life-threatening and fastdegenerating condition for three days, or delayed major surgery for over two years.” Demata v.
New York State Correctional Dep’t of Health Servs., 198 F.3d 233, at *5 (2d Cir. 1999) (internal
citations omitted) (internal quotation marks omitted).
The alleged delay in this case is not “sufficiently serious.” Plaintiff received psychiatric
care and consultations while he was at AMKC and received a hearing aid within a few days.
Regarding the subjective prong, Plaintiff does not provide instances of medical personnel
recklessly failing to act with reasonable care. Upon notifying medical personnel of his

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symptoms, he received prescriptions for his conditions and a hearing aid. Therefore, even if there
was a delay in care, there is no evidence that personnel acted with the requisite subjective intent.

Deliberate Indifference Claim: Housing, Food, Showers
Plaintiff claims that he made complaints about his housing arrangements, food, and
access to showers while he was at AMKC. Defendant’s Rule 56.1 Statement Of Undisputed
Facts In Support Of Defendant’s Motion For Summary Judgment, ECF No. 125, ¶ 4 (housing),
¶¶ 19-20 (food), ¶¶ 46-47 (access to showers). However, for each of these, Plaintiff fails to show
a sufficiently serious condition, and also fails to show that defendant “knew, or should have
known, that the condition posed an excessive risk to health or safety” to satisfy the subjective
prong. “To constitute deliberate indifference, [t]he prison official must know of, and disregard,
an excessive risk to inmate health or safety.” Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013)
The conduct described does not reach this threshold. As noted in Defendant’s Statement
of Undisputed Facts, Plaintiff was offered food around three times a day. See Id. at ¶¶ 19-20.
Cunningham stated in his deposition that “Whenever I asked, I was offered [food] a couple of
times by a few female COs.” Plaintiff’s Deposition Tr. ECF No. 125, Ex. P at 161:10-12.
Although Plaintiff alleges that he was involved in altercations in his housing and that it was
crowded in the AMKC Receiving Room, these do not amount to unconstitutional conditions of
confinement, as there was not “an excessive risk” to Cunningham’s safety. Finally, although the
parties dispute whether Warden Agro was aware that Cunningham had complaints about his
access to showers, he does not show that she knew of and disregarded “an excessive risk to
inmate health or safety.”

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The Court finds the rest of Plaintiff’s arguments unavailing, and because there was no
underlying constitutional claim against Defendant, it does not reach the civil conspiracy 1 or
qualified immunity arguments.

CONCLUSION
For the above reasons, Defendant’s motion for summary judgment is GRANTED. The
Clerk of Court is respectfully directed to terminate the motion at ECF No. 115 and close the
case.
SO ORDERED.
Dated:

New York, New York
March 27, 2023

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ANDREW L. CARTER, JR.
United States District Judge

“To prove a conspiracy claim under Section 1983, a plaintiff must show (1) an agreement between two or more
actors; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal
causing damages.” Randle v. Alexander, 170 F. Supp. 3d 580, 591 (S.D.N.Y. 2016) (internal quotations omitted).
Since there is no unconstitutional injury, the civil conspiracy claim must fail.

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