DelaCruz v. City of New York et al

Filing 61

REPORT AND RECOMMENDATION re: 47 MOTION for Summary Judgment filed by City of New York. For the reasons set forth above, summary judgment should be granted for the defendants. Pursuant to 28 U.S.C. § 636(b) (1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies deliver ed to the Chambers of the Honorable Paul A. Engelmayer, Room 2201, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review. (Objections to R&R due by 6/14/2017.) (Signed by Magistrate Judge James C. Francis on 5/31/2017) Copies Transmitted this Date By Chambers. (anc)

became dangerously slippery when wet. 1

(Third Amended Complaint

(“TAC”), attached as Exh. to Letter Motion for Leave to Amend
Complaint dated Oct. 6, 2016, ¶ 21). Throughout his incarceration,
he

alleges

confinement

that
and

he

suffered

inadequate

unconstitutional

medical

care

conditions

because

the

of

bedding

provided by Rikers staff exacerbated a pre-existing injury to his
left side and a back injury caused by the slip-and-fall incident.
(TAC, ¶¶ 24-25, 32, 63-66).

He also alleges that the Rikers

mailroom staff delayed the mailing of a notice of claim to the New
York City Comptroller’s office notifying it of claims he planned
to

bring

incident.

against

the

City

arising

out

of

the

slip-and-fall

(TAC, ¶¶ 50-62).

1

Mr. Delacruz alleges that the defendants knew about the
slippery floors but made no effort their remedy the condition.
(TAC, ¶ 21).
Neither party addresses this as an independent
conditions of confinement claim in their briefing. To the extent
that the plaintiff raises such a claim, numerous courts have held
that slippery floors in a jailhouse bathroom do not amount to an
unconstitutional condition of confinement, even when the defendant
is aware of the condition of the floors and ignores it. See, e.g.,
Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (“[A]n inch or
two of water in the shower . . . is not ‘an excessive risk to
inmate health or safety,’ nor the ‘denial of the minimal civilized
measure of life’s necessities.’” (quoting Farmer v. Brennan, 511
U.S. 825, 834 (1994))); Hawkins v. Nassau County Correctional
Facility, 781 F. Supp. 2d 107, 113 (E.D.N.Y. 2011) (“[T]he lack of
a shower mat and/or water on the floor in the jail does not rise
to the level of a constitutional violation and, thus, is not
actionable under Section 1983.”); Edwards v. City of New York, No.
08 Civ. 5787, 2009 WL 2596595, at *3 (S.D.N.Y. Aug. 24, 2009)
(“[C]ourts have held that allegations of wet conditions leading to
a slip-and-fall will not support a Section 1983 claim even where,
as here, the plaintiff also alleges that the individual defendants
had notice of the wet condition but failed to address it.”).
2

The defendants move for summary judgment on the following
grounds: (1) failure to prosecute the claims against the John Doe
defendants; (2) failure to establish unconstitutional conditions
of confinement or inadequate medical care; (3) failure to establish
unconstitutional interference with legal mail; and (4) failure to
establish municipal liability.
this

Court

plaintiff’s

should

decline

state

law

to

claim

The defendants also argue that
exercise
in

the

jurisdiction

event

that

all

over

the

of

the

constitutional claims are dismissed.
The plaintiff’s opposition to summary judgment, submitted in
the form of an Affirmation by counsel, argues only that his claim
of

interference

with

his

legal

mail

should

survive

summary

judgment; it does not address the remainder of the defendants’
arguments.

(Affirmation of Michael A. Huerta dated March 14, 2017

(“Pl. Memo.”), at 3-4).

The plaintiff also fails to submit any

evidence in support of his opposition memorandum.

Instead, he

cites his own deposition and the declaration of a corrections
officer that addresses the processing of inmate mail at Rikers,
both of which were submitted by the defendants in connection with
their motion for summary judgment.

(Pl. Memo. at 3-4; Deposition

of Jose Delacruz dated Nov. 23, 2016 (“Delacruz Dep.”), attached
as Exh. C to Declaration of Carolyn Kruk dated Jan. 26, 2017;
Declaration of Kimberly Henderson dated Jan. 24, 2017).

Although

the plaintiff does not provide a statement or counterstatement of
3

material facts pursuant to Local Rule 56.1, he states in his
opposition memorandum that he disputes two paragraphs of the
defendant’s 56.1 statement that concern the timeliness of the
plaintiff’s interrogatories and document requests (Pl. Memo. at 2;
Def. 56.1 Statement, ¶¶ 16-17), but that he concedes the veracity
of the remainder of the facts asserted in the defendants’ 56.1
statement.

(Pl. Memo. at 2).

Discussion
A.

Summary Judgment Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is appropriate where “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); accord

Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011).

A dispute

is “genuine” where “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); accord SCR Joint
Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009).

A

material fact is one that “might affect the outcome of the suit
under the governing law.”

Roe v. City of Waterbury, 542 F.3d 31,

35 (2d Cir. 2008) (quoting Anderson, 477 U.S. at 248).

In

assessing whether there is a genuine issue of material fact, “a
court must ‘construe the facts in the light most favorable to the
non-moving party and must resolve all ambiguities and draw all
4

reasonable inferences against the movant.’”

Seeman v. Local 32B-

32J, Service Employees Union, 769 F. Supp. 2d 615, 620 (S.D.N.Y.
2011) (quoting Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d
775, 780 (2d Cir. 2003)).
The moving party bears the initial burden of identifying those
portions of the record that demonstrate “the absence of a genuine
issue of material fact,” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986), following which the non-moving party must come forward
with “specific facts showing that there is a genuine issue for
trial,” Wrobel v. County of Erie, 692 F.3d 22, 30 (2d Cir. 2012)
(emphasis omitted) (quoting Matsushita Electric Industrial Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). “[W]here
the non[-]moving party will bear the burden of proof on an issue
at trial, the moving party may satisfy its burden by point[ing] to
an absence of evidence to support an essential element of the
non[-]moving party’s case.” New York City Health & Hospitals Corp.
v. Burwell, 174 F. Supp. 3d 792, 796 (S.D.N.Y. 2016) (alterations
in

original)

(quoting

Crawford

v.

Franklin

Corp., 758 F.3d 473, 486 (2d Cir. 2014)).

Credit

Management

The parties can support

their claims with documents, stipulations, affidavits, or other
discovery materials.

See Fed. R. Civ. P. 56(c)(1)(A).

However,

“only admissible evidence need be considered by the trial court in
ruling on a motion for summary judgment.”

5

Presbyterian Church of

Sudan v. Talisman Energy, Inc., 582 F. 3d 244, 264 (2d Cir. 2009)
(quoting Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997)).
B.

John Doe Defendants

Under Rule 4(m) of the Federal Rules of Civil Procedure,
“[i]f a defendant is not served within 120 days after
the complaint is filed, the court . . . must dismiss the
action without prejudice against that defendant or order
that service be made within a specified time. But if
the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate
period.”
Fed. R. Civ. P. 4(m).

The plaintiff commenced this action on April

9, 2015, and retained counsel on July 5, 2015.
on December 2, 2016.

Discovery closed

The plaintiff has yet to serve process on

any of the John Doe defendants, let alone identify them, despite
having more than one year to do so.

He does not offer any reason

for his failure to comply with Rule 4(m).

The claims against the

John

be

Doe

defendants

prejudice. 2

should

therefore

dismissed

without

See Roland v. Smith, 907 F. Supp. 2d 385, 391-92

(S.D.N.Y. 2012).
C.

Inadequate Bedding

Conditions

of

confinement

claims

brought

by

convicted

prisoners are governed by the Cruel and Unusual Punishments Clause

2

Because dismissal of all of the claims against the John Doe
defendants is appropriate, I need not address whether this Court
should decline to exercise jurisdiction over the state law failure
to intervene claim, as that claim is brought only against the John
Doe defendants and not the City of New York. (TAC, ¶¶ 85-88).
6

of the Eighth Amendment, whereas claims brought by pre-trial
detainees are governed by the Due Process Clause of the Fourteenth
Amendment.

Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017).

The record here does not indicate whether the plaintiff was a pretrial detainee or convicted prisoner at the time of the alleged
constitutional violations.

Because a pre-trial detainee’s rights

under the Fourteenth Amendment are “at least as great as the Eighth
Amendment protections available to a convicted prisoner,” id.
(quoting City of Revere v. Massachusetts General Hospital, 463
U.S. 239, 244 (1983), I assume for the purposes of this motion
that the plaintiff was a pre-trial detainee.
The conditions-of-confinement analysis under the Fourteenth
Amendment consists of a two-pronged test.

Cuffee v. City of New

York, No. 15 Civ. 8916, 2017 WL 1134768, at *4 (S.D.N.Y. March 27,
2017).

First,

a

plaintiff

must

establish

“that

the

[constitutional] deprivation alleged is ‘objectively sufficiently
serious’ such that the plaintiff was denied ‘the minimal civilized
measure of life’s necessities.’”

Id. (alteration in original)

(quoting Trammell v. Keane, 338 F.3d 155, 161 (2d Cir. 2003)).

In

the context of an inadequate medical care claim, this requires a
showing of a medical “condition of urgency, one that may produce
death, degeneration, or extreme pain.”

Johnson v. Wright, 412

F.3d 398, 403 (2d Cir. 2005) (quoting Hemmings v. Gorczyk, 134
F.3d 104, 108 (2d Cir. 1998)).
7

Second, a plaintiff must establish a “‘sufficiently culpable
state

of

mind’

associated

infliction of pain.’”

with

‘the

unnecessary

and

wanton

Cuffee, 2017 WL 1134768, at *4 (quoting

Trammell, 338 F.3d at 161).

A pre-trial detainee -- unlike a

convicted prisoner, for whom the state of mind requirement is
defined subjectively -- can meet this prong by showing that an
objectively reasonable person knew should have known of the risk
to inmate health or safety:
[T]he pretrial detainee must prove that the defendantofficial acted intentionally to impose the alleged condition,
or recklessly failed to act with reasonable care to mitigate
the risk that the condition posed to the pretrial detainee
even though the defendant-official knew, or should have
known, that the condition posed an excessive risk to health
or safety.
Darnell, 849 F.3d at 35.
“To succeed on a claim involving an alleged deficient bed, a
plaintiff must [establish] that ‘[he] had a medical condition
requiring a non-standard bed to protect against serious damage to
his future health’ or ‘that the medical condition was itself
created by an inadequate bed or mattress . . . .’”

Patterson v.

Ponte, No. 16 Civ. 3156, 2017 WL 1194489, at *6 (S.D.N.Y. March
30, 2017) (third alteration in original) (quoting Youmans v.
Schriro, No. 12 Civ. 3690, 2013 WL 6284422, at *5 (S.D.N.Y. Dec.
3, 2013)).

The plaintiff testified at his deposition that medical

staff and corrections officers at Rikers denied his requests for
a double mattress and that the mattress provided was too short for
8

a person of his height.

(Delacruz Dep. at 33-35).

However,

although the operative complaint alleges back and side injuries,
the record contains no evidence that he had a medical condition
requiring a longer mattress or double mattress, or that any serious
impairment was caused by his mattress.
57).

(Def. 56.1 Statement, ¶

To the extent that the plaintiff simply asserts that the

mattress was uncomfortable, “the Constitution does not require
‘comfortable’ prison conditions.”

Walker v. Schult, 717 F.3d 119,

125 (2d Cir. 2013) (quoting Rhodes v. Chapman, 452 U.S. 337, 349
(1981)).

Absent

any

credible

evidence

that

the

plaintiff’s

mattress exacerbated a pre-existing medical condition or caused a
new medical condition, summary judgment should be granted for the
defendants on the inadequate bedding claim. 3
D.

Interference with the Mail

Interference with a prison inmate’s legal mail “implicates
[his] rights to access to the courts and free speech as guaranteed

3

To the extent that the plaintiff brings a claim for
inadequate medical care beyond the provision of inadequate
bedding, the record contains no evidence of a sufficiently serious
medical condition that the defendants knew or should have known
about but failed to treat. Rather, the record indicates that the
plaintiff visited with doctors on dozens of occasions and that he
was prescribed various pain medications during these visits. (Def.
56.1 Statement, ¶¶ 21-46). Beyond the plaintiff’s complaints about
the strength of the pain medications (Delacruz Dep. at 21-24),
which do not alone establish a constitutional claim, see, e.g.,
Veloz v. New York, 339 F. Supp. 2d 505, 525 (S.D.N.Y. 2004), there
is no evidence in the record that the care provided was inadequate
in any way.
9

by the First and Fourteenth Amendments to the U.S. Constitution.”
Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003).

To establish

unconstitutional interference with legal mail, a plaintiff must
show (1) deliberate and malicious interference with his legal mail;
and (2) that the interference resulted in an adverse impact on an
existing cause of action.

Smith v. City of New York, No. 14 Civ.

443, 2015 WL 1433321, at *3 (S.D.N.Y. March 30, 2015); Cancel v.
Goord, No. 00 Civ. 2042, 2001 WL 303713, at *4 (S.D.N.Y. March 29,
2001).
At his deposition, the plaintiff testified that he filled out
his notice of claim on January 17, 2015, and submitted to the
mailroom on January 20, 2015.

(Delacruz Dep at 41-43).

The

parties agree that the plaintiff’s notice of claim was mailed on
January 31, 2015.

(Def. 56.1 Statement, ¶ 75).

The plaintiff

testified further that other inmates told him that Rikers staff
regularly retaliated against them by delaying or throwing away
their

mail,

including

letters

(Delacruz Dep. at 43-46, 48-49).

to

the

Comptroller’s

office.

None of the evidence concerning

what other inmates told the plaintiff about the processing of their
mail may be considered on summary judgment, however, as it is
inadmissible

hearsay

when

offered

through

the

plaintiff’s

testimony to establish that staff delayed or destroyed mail.

See

Fed. R. Evid. 801(c); Presbyterian Church of Sudan, 582 F. 3d at

10

264; New World Solutions, Inc. v. NameMedia Inc., 150 F. Supp. 3d
287, 305 (S.D.N.Y. 2015).
The defendant, meanwhile, explains that the delay in sending
the notice of claim was caused by the procedure that the United
States Postal Services, which is not a party to this litigation,
employs to collect mail from the Rikers mailroom.

(Def. 56.1

Statement, ¶¶ 74-76). The plaintiff does not submit any admissible
evidence to dispute this contention or support his claim beyond
his own subjective belief that the mailroom staff deliberately and
maliciously

interfered

with

his

mail.

Accordingly,

summary

judgment should be granted for the defendants on the claim of
unconstitutional interference with legal mail.
E.

Municipal Liability

To bring constitutional claims against a municipal defendant,
“a plaintiff must identify the existence of a municipal policy or
[custom] that caused the alleged constitutional violation” and
“demonstrate

a

sufficient

causal

relationship

violation and the municipal policy or [custom].”

between

the

Mitchell v. City

of New York, 841 F.3d 72, 80 (2d Cir. 2016) (citing Monell v.
Department of Social Services of the City of New York, 436 U.S.
658, 694-95 (1978)).

As the defendants have established the

absence of a genuine dispute as to whether any of the plaintiff’s
constitutional rights were violated, it is impossible for the
plaintiff to establish that any such violation was carried out
11