Correction Officers' Benevolent Association, Inc. et al v. City of New York et al

Filing 51

MEMORANDUM OPINION AND ORDER: re: 35 AMENDED MOTION to Dismiss Amended Notice of Motion filed by Joseph Ponte, Bill De Blasio, New York City Department of Correction, City of New York. For the foregoing reasons, Defendants' motion to dismiss the Complaint is granted in its entirety. This dismissal is without prejudice to the filing of a motion pursuant to Federal Rule of Civil Procedure 15(a) for leave to amend the Complaint. Any such motion must be filed by July 2, 2018 and m ust be accompanied by a memorandum of law and a copy of the proposed amended complaint that is blacklined to identifythe proposed changes. Failure to make a timely motion for leave to amend, or to demonstrate in such a motion that amendment would not be futile, will result in dismissal of this action with prejudice and without further advance notice. This Memorandum Opinion and Order resolves Docket Entry No. 35. SO ORDERED., ( Motions due by 7/2/2018.) (Signed by Judge Laura Taylor Swain on 5/30/2018) (ama) Modified on 5/30/2018 (ama).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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CORRECTION OFFICERS’ BENEVOLENT
ASSOCIATION, INC., TIFFANI DUBLIN,
individually and on behalf of all others
similarly situated, ANTHONY ROMANO,
individually and on behalf of all others
similarly situated, MATTHEW HINES,
individually and on behalf of all others
similarly situated, FRANCIS CASTRO,
individually and on behalf of all others
similarly situated, JOHN AND JANE DOES
1-2,000,
Plaintiffs,
-v-

No. 17 CV 2899-LTS

THE CITY OF NEW YORK, MAYOR BILL
DE BLASIO, NEW YORK CITY
DEPARTMENT OF CORRECTION, and
COMMISSIONER CYNTHIA BRANN1,
Defendants.
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MEMORANDUM OPINION AND ORDER
Plaintiff Correction Officers’ Benevolent Association, Inc. (“COBA”), the
exclusive bargaining representative for all employees of the New York City Department of
Correction (“DOC”) holding the title of “Correction Officer” (“CO”), and COs Tiffani Dublin,
Anthony Romano, Matthew Hines, and Francis Castro (collectively “Plaintiffs”) bring this

1

Pursuant to Federal Rule of Civil Procedure 25(d), Commissioner Cynthia Brann is
substituted for Defendant Commissioner Joseph Ponte, who was named as a party to this
action in his official capacity. See Phillip v. Schriro, No. 12-CV-8349-RA, 2014 WL
4184816, at *9 (S.D.N.Y. Aug. 22, 2014); (Compl. ¶ 16). The Clerk of Court is directed
to amend the caption as set forth above.

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action, in the case of the named COs, both individually and on behalf of others similarly situated,
against the City of New York (the “City”), its mayor, Bill De Blasio, the DOC, and Cynthia
Brann, the DOC Commissioner (collectively “Defendants”). Plaintiffs claim that Defendants
have violated 42 U.S.C. section 1983 (“Section 1983”) by subjecting them to a state-created
danger in derogation of their substantive due process rights guaranteed by the Fourteenth
Amendment. (Compl., Docket Entry No. 1, ¶ 7.) Defendants move pursuant to Federal Rule of
Procedure 12(b)(6) to dismiss Plaintiffs’ Complaint for failure to state a claim upon which relief
can be granted. (Docket Entry No. 35.)
The Court has subject matter jurisdiction of this action pursuant to 28 U.S.C.
sections 1331 and 1343(a)(3).
The Court has reviewed the parties’ submissions carefully and, for the following
reasons, grants Defendants’ motion to dismiss Plaintiffs’ Complaint in its entirety.
BACKGROUND
The following facts are drawn from the Complaint. The Court takes these facts as
true for the purposes of this motion to dismiss.
Defendant DOC is an agency of the City of New York charged with the
administration of the City’s jail system, which includes 10 facilities located on Rikers Island in
addition to other facilities throughout the City and within two City hospitals. (Compl. ¶ 15.)
The inmate population of the DOC facilities consists of pretrial detainees who have not been
convicted or sentenced, and sentenced inmates serving a term of one year or less. (Id.) To
effectuate its mission “to ensure the care, custody, and control of persons housed within its
facilities,” DOC employs approximately 9,000 COs, who are represented by COBA for
bargaining purposes. (Id. ¶¶ 7, 15.)

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Following a two and one-half year investigation into conditions at City jails, the
United States Department of Justice (“DOJ”) issued a report in August 2014 citing DOC for
“rampant violations” and mandating certain reforms. (Id. ¶ 21.) The DOJ then intervened in
Nunez v. City of New York, a then-pending class action lawsuit alleging that DOC was violating
the rights of its inmates through the excessive use of force against them. (Compl. ¶ 21; see
Nunez, 11-cv-5845-LTS-JCF (S.D.N.Y.), Second Am. Compl., Docket Entry No. 34.) On
October 21, 2015, the Court entered a consent judgment in Nunez which mandated changes in,
inter alia, the DOC use of force protocol, discipline of the DOC uniformed staff, staff training,
and other policies relating to inmate safety and supervision. (See Nunez Consent Judgment,
Docket Entry No. 1-12.)
In March 2015, the City announced a “14 Point Plan” and a series of initiatives,
policies, practices, and customs to reduce violence against inmates within city jails. (Compl. ¶¶
21-22.) Plaintiffs allege that these reforms prioritized the safety of inmates at the expense of the
safety of the COs and other staff members. (Id. ¶¶ 1, 4, 22, 50, 125.) Plaintiffs have identified
the following nine particular policies or practices2 that they allege have increased the COs’
exposure to physical danger or even death: (1) The discontinuation of the use of punitive
segregation, a practice in which an inmate found guilty of violating certain rules, including
assaulting staff, is housed in a higher-security unit, for young inmates in favor of alternative
programs with no punitive element, such as the Transition Restorative Unit, the Second Chance
Housing Unit, the Secure Unit, and the Enhanced Security Housing Unit (id.¶¶ 24-32); (2)
limiting the use of punitive segregation among the adult inmate population in favor of an

2

Some of the challenged policies and procedures were implemented prior to the
announcement of the 14 Point Plan. (See Compl. ¶¶ 21-22, 24.)

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increased reliance on non-punitive programs and failing to use punitive segregation even to the
extent authorized by this reformed policy (id. ¶¶ 47-53, 60-62); (3) DOC’s failure to transfer
inmates under investigation for violence against DOC staff to Pre-Hearing Detention as
authorized by Directive 4501R-D (id. ¶¶ 65-68); (4) the promulgation and implementation of a
new Use of Force Policy to comply with the Nunez consent judgment, requiring the exhaustion
of an allegedly burdensome set of prerequisite actions before necessary force can be used and
prohibiting the use of force in other dangerous situations (id. ¶¶ 75-84; Use of Force Directive
5006R-D, effective November, 20, 2015, Docket Entry No. 1-14); (5) inadequate training and
training facilities (Compl. ¶¶ 85-104); (6) DOC’s housing of “high security risk inmates” at the
West Facility, a facility originally designed to house inmates with communicable diseases,
without adequate DOC staff (id. ¶¶ 105-107, 117); (7) DOC’s inmate classification system, the
use of which results in a concentration of gang-affiliated inmates being housed together (id. ¶¶
119-121, 124); (8) DOC’s failure to provide COs with necessary equipment, including “batons,
helmets, gloves, mechanical restraints, spit masks, . . . arm and shin guards,” and body scanners,
which could detect weapons concealed on inmates (id. ¶¶ 131-133, 135, 137-138); and (9) the
intentional underreporting and misclassification of acts of violence against DOC staff (id. ¶¶ 142,
144-148, 153-157, 159).
Plaintiffs allege that violence in city jails increased 18%, as reported in May
2017, and injuries to DOC staff increased to approximately 1,337, in the period between
November 2015 and December 2016. (Id. ¶¶ 1, 50.) Plaintiffs proffer graphic allegations
detailing inmate violence against and abuse of DOC staff. (See generally Compl. ¶¶ 28-154.)
Plaintiffs also allege that these specific incidents and the alleged increase in the rate of violence
against DOC staff are attributable to Defendants’ aforementioned policies and practices. (Id. ¶¶

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32, 41-42, 45, 51-52, 64, 70, 72, 74, 79, 81-82, 84, 95-96, 98-99, 104-105, 108, 117, 119, 121122, 124, 129-130, 137-138, 140-141.) According to Plaintiffs, DOC’s alleged underreporting
and mischaracterizations of violent encounters between inmates and staff present a misleading
impression of the safety at DOC facilities and “give a false sense of security to the thousands of
Correction Officers in the Jails.” (Id. ¶ 158.) COBA has notified DOC that its punitive
segregation policies are “dangerous and caus[ed] harm to Correction Officers on several
occasions” and that its training facilities are inadequate. (Id. ¶¶ 64, 101.)
DISCUSSION
In determining whether a plaintiff has set forth the “short and plain statement of
the claim showing that [it is] entitled to relief” required by the Federal Rules (see Fed. R. Civ. P.
8(a)(2)), the Court looks to whether the allegations in the complaint establish the “facial
plausibility” of the plaintiff’s claims. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Such a showing “must be
enough to raise a right to relief above the speculative level,” requiring “more than labels and
conclusions, [or] a formulaic recitation of the elements of a cause of action.” Twombly, 550
U.S. at 555 (internal quotation marks omitted). In deciding a Rule 12(b)(6) motion to dismiss,
the Court assumes the truth of the facts asserted in the complaint and draws all reasonable
inferences from those facts in favor of the plaintiff. See Harris v. Mills, 572 F.3d 66, 71 (2d Cir.
2009). “In adjudicating a motion to dismiss, a court may consider only the complaint, any
written instrument attached to the complaint as an exhibit, any statements or documents
incorporated in it by reference, and any document upon which the complaint heavily relies.”

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Geron v. Seyfarth Shaw LLP (In re Thelen LLP), 736 F.3d 213, 219 (2d Cir. 2013) (citing
Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)).
Plaintiffs bring suit under Section 1983, which authorizes civil actions against
individual state actors for relief from a “deprivation of any rights, privileges, or immunities
secured by the Constitution.” 42 U.S.C.S. § 1983 (LexisNexis 2013). Under the principles
enunciated by the Supreme Court in Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91
(1978), municipal governmental entities may be held liable under Section 1983 if the deprivation
is the product of a municipal policy or custom. Plaintiffs assert that they are being subjected to
a deprivation of their rights to substantive due process, specifically that they have a
constitutional right “to be free from governmental policies that create or increase a substantial
and imminent risk of serious bodily harm or death from third parties, like inmates” (Pls.’ Mem.
Of Law in Opp’n to Defs.’ Mot. to Dismiss, Docket Entry No. 41, at 2), and that Defendants
have implemented jail reform policies with deliberate indifference to COs’ safety, thereby
increasing the COs’ risk of physical injury or even death at the hands of the City’s inmates. See
Pena v. Deprisco, 432 F.3d 98, 108 (2d Cir. 2005) (“a state created danger can be the basis of a
substantive due process violation”). The Due Process Clause of the 14th Amendment to the
Constitution of the United States provides that “‘[n]o State shall . . . deprive any person of life,
liberty, or property, without due process of the law.’ . . . It has been read ‘to guarantee more than
a fair process . . . and to cover a substantive sphere as well, barring certain government actions
regardless of the fairness of the procedure used to implement them.’” Pena, 432 F.3d at 98
(citations omitted).
Generally, neither the Fifth nor Fourteenth Amendment mandates that a
governmental entity or agent affirmatively act to protect the life, liberty, property, or safety of a

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member of the public. Deshaney v. Winnebago County Dep’t of Social Services, 489 U.S. 189,
196-97 (1989). A government may, however, owe such a duty to a person who enjoys a special
relationship with the state, such as a prisoner, id. at 197-200, or, under certain circumstances, if
the state created the particular danger to the person’s life or safety, Pena, 432 F.3d at 108. The
Supreme Court has nonetheless cautioned that the Due Process Clause of the Constitution “does
not transform every tort committed by a state actor into a constitutional violation.” Deshaney,
489 U.S. at 202. A court must “screen[] out all but the most significant constitutional violations,
lest the Constitution be demoted to a font of tort law.” Matican v. City of New York, 524 F.3d
151, 155 (2d Cir. 2008) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 848 n.8 (1988)
(internal quotation marks and alterations omitted)).
Plaintiffs do not claim that they are in a “special relationship” with Defendants
that is sufficient to give rise to an affirmative duty to protect them and support a viable
substantive due process claim. Rather, Plaintiffs’ substantive due process claim is premised on
the assertion that Plaintiffs are being subjected to dangers created by the government entities.
Plaintiffs assert that Defendants’ actions here constituted deliberate indifference to Plaintiffs’
asserted right to be free from the risk of an increase in state-created danger, insofar as
Defendants knew of the risks to the COs of increased exposure to inmate violence that their
policies entailed and enacted the policies anyway.3

3

The Second Circuit treats special relationships and state-created dangers “as separate and
distinct theories of liability.” Pena, 432 F.3d at 109.

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To succeed on a state-created danger substantive due process violation claim, a
plaintiff must establish that the defendant caused the plaintiff to suffer harm4 through an
affirmative action that was of such character as to shock the conscience. See Lombardi v.
Whitman, 485 F.3d 73, 79, 81, 81 n.5 (2d Cir. 2007). “Government action resulting in bodily
harm is not a substantive due process violation unless the government action was so egregious,
so outrageous, [or arbitrary, in a constitutional sense] that it may fairly be said to shock the
contemporary conscience.” See id. at 79, 85 (quoting Pena, 432 F.3d at 112 and citing Collins v.
City of Harker Heights, Tex, 503 U.S. 115, 129 (1992)) (internal quotation marks and citations
omitted). A determination as to whether a state-sanctioned action shocks the conscience requires
a careful evaluation of the particular circumstances of the case, including the nature of the state
action, the magnitude and form of the harm inflicted on the plaintiff, and the state of mind of the
defendants. Lewis, 523 U.S. at 850-54; cf. Pena, 432 F.3d at 114 (finding that police officials’
implicit condonation of heavy drinking by off-duty officers shocked the conscience because it
extended over a long period of time, presented an obvious risk, and resulted in grave danger to
the public).
The poles of the range of states of mind that can support a determination that an
executive actor’s conduct shocks the conscience and can therefore constitute a substantive due
process violation are clear. “[C]onduct intended to injure in some way unjustifiable by any
government interest is the sort of official action most likely to rise to the conscience-shocking
level.” Lewis, 523 U.S. at 849. Negligently inflicted harm, on the other hand, cannot, as a
categorical matter, shock the conscience in a constitutional sense. Lewis at 848-49. Between

4

A plaintiff may state a claim under the state-created danger doctrine where, as here, the
defendant’s actions allegedly enhanced or increased the risk of harm. See Okin v.
Village of Cornwall-On-Hudson Police Dept., 577 F.3d 415, 427-28 (2d Cir. 2009).

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intentionally and negligently inflicted harm lies injury caused through a defendant’s deliberate
indifference, a state of mind that, akin to recklessness, requires that a defendant knew of the risk
and deliberately assumed or disregarded it. Pena, 432 F.3d at 114 (defining deliberate
indifference); see Matican, 524 F.3d at 158 (observing that deliberate indifference is situated
between the two poles of negligence and the intentional infliction of harm). Whether a
defendant’s deliberate indifference is sufficiently egregious to shock the conscience is dependent
on the particular circumstances of the violative conduct, such as the nature of the government
action and the harm inflicted. Lewis, 523 U.S. at 850; cf. Pena, 432 F.3d at 114. Here,
Plaintiffs’ claims are premised on allegations that Defendants acted, not with the intent to harm
COs, but in a manner that was deliberately indifferent to increased risks of harm to COs as a
consequence of measures designed to improve to conditions for inmates. (See Compl., ¶¶ 1, 4,
22, 50, 125.)
Courts have recognized that a government actor’s deliberate indifference may
shock the conscience and thereby support a substantive due process claim where the government
actor created or increased the danger to an individual and had sufficient “time to make unhurried
judgments, upon the chance for repeated reflection, largely uncomplicated by the pulls of
competing obligations” or public goals. Lewis, 523 U.S. at 853; see Lombardi, 485 F.3d at 83;
see also Pena, 432 F.3d at 112-14. Courts have acknowledged, however, that government action
often necessitates decisions that inherently involve weighing the risk to the safety and welfare of
one group against that of another or the advancement of other public policy goals. Collins, 503
U.S., at 128-29; Lombardi 485 F.3d at 83-85. The Second Circuit, recognizing a government’s
need to make such difficult decisions, has held that deliberately indifferent policy actions of
government actors cannot shock the conscience in a constitutional sense where they seek to

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accommodate competing governmental interests even if the decision-making official, aware of
the risks to a particular group, makes a poor choice resulting in grave consequences. Lombardi
48 F.3d at 83-85. Thus, liability cannot be imposed under the deliberate indifference standard
when a governmental entity acts subject to the pull of competing governmental obligations. See
id. at 85. In such circumstances, a substantive due process violation cannot be found unless the
government action was undertaken arbitrarily or with the intent to harm. See also Benzman v.
Whitman, 523 F.3d 119, 128 (2d Cir. 2008) (finding that, in light of competing public policy
considerations, a state-created danger claim could only succeed if plaintiff alleged that the
government “acted with intent to harm”).
In Lombardi, the plaintiffs alleged that, following the terrorist attacks of
September 11, 2001, the United States Environmental Protection Agency (“EPA”) violated
rescue and clean-up workers’ substantive due process rights by issuing false statements
indicating that the air surrounding the former World Trade Center site was safe, thus inducing
the workers to continue to work at the site with inadequate protective equipment. 485 F.3d at
74-77. The Second Circuit upheld the dismissal of the complaint, finding that the alleged
conduct did not shock the conscience and reasoning that “substantive due process liability should
not be allowed to inhibit or control policy decisions of government agencies, even if some
decisions could be made to seem gravely erroneous in retrospect,” especially where a
government is entrusted to prioritize risks to one group relative to another group or the
advancement of a public goal. Id. at 84-85.
Here, Plaintiffs allege that Defendants prioritized the safety of DOC’s inmates
over that of the COs and violated Plaintiffs’ right to substantive due process through deliberate
indifference to the implications CO safety of their policy changes. Although the COs perform

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vital work in an inherently dangerous environment, this attention to the safety of DOC’s inmates,
who themselves enjoy a special relationship with the City entitling them to protection pursuant to
the Due Process Clause,5 is exactly the type of competing obligation that makes liability based
on the deliberate indifference standard inappropriate. See Benzman, 523 F.3d at 128 (rejecting a
deliberate indifference claim where EPA misrepresentations induced residents to return to lower
Manhattan following the World Trade Center attacks even though the competing interest was not
as weighty as the EPA’s interest in encouraging the rescue and recovery work that was at issue in
Lombardi). Recognition of a viable cause of action based on that standard in this context would
essentially impose constitutional liability on the DOC for any policy that foreseeably and
markedly increased the risks to the safety of either DOC staff or DOC inmates, thereby
effectively paralyzing the agency in any action designed to protect either group.6 Furthermore,
Plaintiffs acknowledge that some of the DOC reforms are necessary in order for Defendants to
comply with their obligations under the Nunez consent judgment, which represents still another
competing obligation. (See Compl. ¶¶ 78-79 (asserting that compliance with the Nunez consent
judgment increased workplace danger).)
Plaintiffs contend that a claim based on deliberate indifference is appropriate in
these circumstances simply because Defendants implemented their reform policies in an

5

6

Prisoners enjoy a special relationship with the state entitling them to protection through
the substantive due process doctrine because the state has deprived them of the ability to
provide for their own care and safety by virtue of their confinement. See Matican, 524
F.3d 155-56 (discussing the establishment of a special relationship).
In light of its determination that Plaintiffs may not proceed under a theory of deliberate
indifference, the Court need not consider whether any particular increase or combination
of increases of the already significant and ever-present risks COs face on a daily basis is
sufficient to shock the conscience.

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unhurried and deliberative manner.7 Although the Second Circuit, in rejecting the deliberate
indifference claim in Lombardi, observed that exigent circumstances had compelled the EPA to
act in a hasty manner, it discounted this consideration and held the deliberate indifference
standard insufficient to support a finding of conscience shocking behavior solely because the
EPA’s responsibility to shield response workers from harm was subject to a competing public
interest, namely to facilitate the clean-up and recovery of the World Trade Center site.8
Lombardi, 485 F.3d at 82-83; see also Matican, 524 F.3d at 158-59 (observing that the Lombardi
court did not rely on the EPA’s need to act quickly). The parties have not cited, and the Court’s
research has not disclosed, any precedent in which another court has held the deliberate
indifference standard sufficient to support a substantive due process claim where a valid and
articulated competing government obligation was a factor in the challenged conduct. See
Lombardi, 485 F.3d at 83 (“In previous cases in which we recognized a state created danger,
government officials were not subject to the pull of competing obligations.”); Pena, 432 F.3d at
114 (“Not condoning egregious drunk driving ‘does not ordinarily clash with other equally
important governmental responsibilities.’”) (quoting Lewis, 523 U.S. at 852); cf. Kowaleski v.
Lewis, 643 F. Supp. 2d 259, 271-74 (N.D.N.Y. 2009) (upholding a claim under the deliberate
indifference standard where a plaintiff prison guard was subjected to harassment and other
behavior that increased her risk of harm, after she reported misbehavior by other prison

7

8

Plaintiffs do not explicitly allege the manner in which these policies and practices were
formulated and implemented. Plaintiffs do, however, allege that they were implemented
through new DOC programs, policies, and directives, from which the Court can infer that
a formal, deliberative, and reflective process was followed. See Doe v. Columbia Univ.,
831 F.3d 46, 48-49 (2d Cir. 2016) (stating that, in considering a motion to dismiss, all
reasonable inferences must be resolved in favor of the plaintiff).
Because the Lombardi court did not rely on the government’s need to act quickly
following the attacks, the Court declines Plaintiffs’ invitation to construe the holding in
Lombardi as limited to government actions in the aftermath of a disaster.

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personnel, but without a finding of any competing government obligation). Notwithstanding the
very real and palpable danger that the COs labor under in caring for and securing the City’s
inmates, Plaintiffs have provided no authority that would support a constitutional claim for statecreated danger based on Defendants’ deliberate policy determinations here, where inmate and
CO welfare considerations are acknowledged in the Amended Complaint, and there is no
allegation that Defendants acted with an intent to inflict harm on the COs in a way that is
unjustified by any legitimate government interest.9 See Lewis, 523 U.S. at 849 (stating that
intentional injury “unjustifiable by any government interest” is the most likely type to rise to
conscience-shocking levels); see also Benzman, 523 F.3d at 128 (finding that in light of
competing public policy considerations, a state-created danger claim could only succeed if
plaintiff alleged that the government “acted with intent to harm”).
Plaintiffs cite the Supreme Court’s decision in Lewis, in support of their argument
that the deliberate indifference standard is generally appropriate in a prison setting. The Lewis
Court, however, used a prison staff’s deliberate indifference to the welfare of a prisoner as an
example of conscience-shocking behavior precisely because no “substantial countervailing
interest excuse[s] the State from making provision for the decent care and protection of those it
locks up.” 523 U.S. at 851-52 (internal quotation marks and citations omitted).
Plaintiffs also point to a passage in Gantt v. Ferrara, No. 15-CV-7661 (KMK),
2017 WL 1192889, at *12 (S.D.N.Y. Mar. 29, 2017), for the proposition that a court may find

9

Plaintiffs argue that deliberate indifference qualifies as an intent to cause harm and thus
shocks the conscience because the deliberate indifference standard requires a defendant
to act after intentionally disregarding risks to a plaintiff. This argument is without merit
because courts have analogized deliberate indifference to recklessness and distinguished
it from intent to purposefully cause harm. See Pena, 432 F.3d at 114.

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deliberate indifference conscience-shocking when a state actor engages in harmful behavior over
an extended period of time notwithstanding competing governmental obligations. Plaintiffs’
reliance on Gantt is misplaced. The Gantt court was characterizing two Second Circuit
decisions, Pena, 432 F.3d at 113-14, and Okin v. Village of Cornwall-On-Hudson Police Dept.,
577 F.3d 415, 432 (2d Cir. 2009), each of which concluded that there was no countervailing
government interest before finding that the deliberately indifferent behavior shocked the
conscience and neither of which indicates that a competing obligation is overcome if a defendant
engages in harmful conduct over an extended period of time. In Gantt itself, the court found that
there was no factual basis in the complaint for a finding that the defendants in that case had even
been aware of the risk to which the plaintiff claimed that they had deliberately been indifferent.
See Gantt, 2017 WL 1192889, at *13.
Plaintiffs thus fail to state claims upon which relief may be granted with respect to
the first eight challenged polices or practices.
Defendants’ remaining claim, that the alleged practice of deliberately
underreporting and misreporting violence in their jails is shocking to the contemporary
conscience, fails to state a claim because Plaintiffs allege no facts showing how such false
reporting increases the COs’ exposure to physical harm. Cf. Lombardi, 485 F.3d at 81, 81 n.5
(taking the plaintiffs’ allegations as true, assuming and setting aside the question of a causal
connection between the government action and the harm suffered by the plaintiffs). Although
Plaintiffs argue that these misrepresentations are intended to make the DOC facilities appear
safer than they actually are, Plaintiffs provide no factual allegations tying the allegedly false
reports of violence against COs or among inmates to any of the alleged injuries to a CO. The
claim must therefore be dismissed, and the Court need not consider whether Defendants’ alleged

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behavior in this regard could be actionable as conscience-shocking under the Due Process
Clause.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss the Complaint is
granted in its entirety. This dismissal is without prejudice to the filing of a motion pursuant to
Federal Rule of Civil Procedure 15(a) for leave to amend the Complaint.
Any such motion must be filed by July 2, 2018 and must be accompanied by a
memorandum of law and a copy of the proposed amended complaint that is blacklined to identify
the proposed changes. Failure to make a timely motion for leave to amend, or to demonstrate in
such a motion that amendment would not be futile, will result in dismissal of this action with
prejudice and without further advance notice.
This Memorandum Opinion and Order resolves Docket Entry No. 35.

SO ORDERED.
Dated: New York, New York
May 30, 2018
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge

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