Opinion
21-cv-00303 (AT) (VF)
06-20-2023
GABINO GENAO, Plaintiff, v. CITY OF NEW YORK, WARDEN HARVEY, CAPTAIN DILLARD, CAPTAIN MOISE, OFFICER LISICHKIN, OFFICER HIDALGO, OFFICER LA TOUCHE, COMMISSIONER BRANN, OFFICER FERSOV Defendants.
TO: THE HONORABLE ANALISA TORRES, United States District Judge
REPORT AND RECOMMENDATION
VALERIE FIGUEREDO, United States Magistrate Judge
Plaintiff Gabino Genao, proceeding pro se and in forma pauperis, is presently incarcerated at Attica Correctional Facility. Genao brings this action against the City of New York (the “City”), Warden Harvey, Captain Dillard, Captain Moise, Captain Fersov, Officer Hidalgo, Officer Lisichkin, Officer La Touche, and Cynthia Brann, Commissioner of the Department of Corrections (collectively, “Defendants”) pursuant to 42 U.S.C. § 1983, alleging violations of his federal constitutional rights. Presently before the Court is Defendants' motion for summary judgment on all of Genao's claims pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, I respectfully recommend that Defendants' motion be GRANTED in part and DENIED in part.
The individual defendants, other than Commissioner Brann, are referred to by their title and last name only. Neither Plaintiff nor the City have provided the first names of those individuals.
BACKGROUND
Unless otherwise noted, the facts recounted herein reflect the undisputed, material facts contained in Defendants' Local Civil Rule 56.1 Statement of Facts (“R. 56.1 Statement”). See ECF No. 77. If Genao contested or challenged any facts in Defendants' Rule 56.1 Statement by pointing to admissible evidence in the record, the Court considered those facts to be disputed and did not include them in the facts recounted herein. See Pl.'s Mem., ECF No. 83 at 4-6. Facts that were not contradicted with admissible evidence, however, were deemed admitted. See Giannullo v. City of N.Y., 322 F.3d 139, 140 (2d Cir. 2003) (“If the opposing party . . . fails to controvert a fact so set forth in the moving party's Rule 56.1 statement, that fact will be deemed admitted.”); see also New York State Teamsters Conf. Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 648 (2d Cir. 2005) (finding it within the district court's discretion to deem the moving party's statement of material facts admitted where the opposing party “offered mostly conclusory denials” and “failed to include any record citations”).
On December 15, 2020, Genao was incarcerated in the custody of the Department of Corrections (“DOCs”) at the Manhattan Detention Center. R. 56.1 Statement ¶ 2. On that day, at approximately 9:32 p.m., Genao started a fire in his cell. See id. ¶¶ 3-4. The fire was captured by a video-surveillance camera located outside of Genao's cell. See R. 56.1 Statement ¶ 5; see also Video of Incident, ECF No. 75, Ex. D at 02:04:19. Beginning at approximately 9:32 p.m., the video footage shows black smoke coming out of Genao's cell, and orange flames can be seen coming out of the bottom and side of the cell door. See Video of Incident at 02:04:19-02:05:04. Through the window on the door to Genao's cell, flames are visible inside the cell. Id. Approximately 58 seconds after the fire started, see R. 56.1 Statement ¶ 5, five officers approached Genao's cell, see Video of Incident at 02:05:00.
The Court has reviewed video footage of the fire. See Video of Incident, ECF No. 75, Exhibit D. Genao has attempted to challenge certain facts in Defendants' Rule 56.1 Statement as they relate to the fire. See Pl.'s Mem., ECF No. 83 at 4-6. However, where the video of the incident indisputably contradicts Genao's assertions, the Court adopts the version of the facts reflected in the video. See Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir. 2007) (“Incontrovertible evidence relied on by the moving party, such as relevant videotape whose accuracy is unchallenged, should be credited by the court on [a motion for summary judgment] if it so utterly discredits the opposing party's version that no reasonable juror could fail to believe the version advanced by the moving party.”). The timestamps used herein in citations to the video footage refer to the hours, minutes, and seconds provided by the video player.
Officer Lisichkin opened the door to Genao's cell and, while standing by the door to the cell, sprayed a fire extinguisher inside the cell. See R. 56.1 Statement ¶ 6; see also Video of Incident at 02:05:02-02:05:08. Officer Lisichkin sprayed the fire extinguisher for about four seconds and then handed the fire extinguisher to Officer La Touche, who sprayed it for about 11 seconds, see R. 56.1 Statement ¶¶ 7-8, at which point flames are no longer visible on the video, see Video of Incident at 02:05:11-02:05:20. Genao then walked out of the cell; the video footage shows Genao walking backwards out of his cell at approximately 9:33 p.m. See Video of Incident at 2:05:22-02:05:27; R. 56.1 Statement ¶ 9. While standing outside of his cell, Genao was rear-handcuffed by Captains Moise and Dillard and then escorted out of the housing area. See R. 56.1 Statement ¶ 10; see also Video of Incident at 02:05:22-02:05:43.
Defendants were unable to identify the type of fire extinguisher Officers Lisichkin and La Touche used on December 15, 2020. In supplemental briefing, the City stated that “upon information and belief, the type of fire extinguisher used [was] an ‘ABC Fire Extinguisher.'” Defs.' Sup. Mem., ECF No. 91, at 2.
Defendants assert that Genao walked out of his cell “with his hands outstretched backwards,” R. 56.1 Statement ¶ 9, and that he therefore “invited officers to rear-cuff him by surrendering to officers with his hands behind his back, ECF No. 76 at 11 (emphasis in the original). As support for this fact, Defendants cite to the video of the incident. The video shows Genao, with both arms by his side, walking backwards out of his cell. See Video of Incident at 02:05:22-02:05:27. Although the video shows that Genao had his left arm extended slightly behind his torso, it does not conclusively show that Genao had both “hands outstretched backwards,” as Defendants suggest. R. 56.1 Statement ¶ 9. Thus, whether Genao had his hands “outstretched backwards” is a factual question that is in dispute.
After Genao left the housing area, Officer La Touche resumed spraying the fire extinguisher inside Genao's cell. See R. 56.1 Statement ¶ 11; see also Video of Incident at 02:05:45-02:05:59. At approximately 9:37 p.m., officers returned to Genao's cell to “clean” it, “removing items,” and “sweeping debris and fire extinguisher substance.” See R. 56.1 Statement ¶ 12; see also Video of Incident at 02:10:05-02:10:54.
At around 11:10 p.m., Genao went to the medical clinic, where he reported “irritation of the nose [and] throat associated with some coughing.” See R. 56.1 Statement ¶¶ 13, 18. Genao's medical records from the incident indicate that he was not in “respiratory distress.” Id. ¶ 14; see also ECF 75, Ex. E (“Genao's Medical Records”) at DEF962-65. The medical records also indicate that Genao did not identify any pain or injury to his arms, wrists, or hands during his visit to the clinic. R. 56.1 Statement ¶ 16. Genao was prescribed Prednisone and Maalox and was instructed to follow up with “genera[l] hygiene” and “continue[d] use of [a] rescue inhaler [and] steroid inhaler.” Genao's Medical Records at DEF963. After he was treated, Genao was taken back to his cell. See R. 56.1 Statement ¶ 20.
The following day, on December 16, 2020, Genao's cell was “decontaminated.” Id. ¶ 21. Later that same day, in the early afternoon, Genao started another fire inside his cell. See Id. ¶ 24. Genao was treated by medical personnel in the evening on December 16, 2020, because he had ingested a chemical substance in his cell. See id. ¶ 22; see also Genao's Medical Records at DEF948.
B. Procedural History
Plaintiff initiated this action on January 13, 2021, asserting claims for excessive force, deliberate indifference to medical needs, unconstitutional conditions of confinement, violations of 18 U.S.C. § 1001, and municipal liability against the City and Commissioner Brann. See ECF No. 2 (“Compl.”). Defendants filed Answers on May 7, 2021, June 18, 2021, and August 6, 2021. See ECF Nos. 24, 32, and 37. On April 25, 2022, the case was redesignated to the undersigned.
Defendants submitted their motion for summary judgment on September 30, 2022, see Defs.' Mem., ECF No. 74, and Genao submitted his opposition on November 21, 2022, see Pl.'s Mem., ECF No. 83. On December 19, 2022, Defendants submitted their reply memorandum. See Defs.' Reply, ECF No. 85. On April 12, 2023, the Court requested supplemental briefing from Defendants, see ECF No. 89, which they submitted on April 28, 2023, see Defs.' Sup. Mem., ECF No. 91.
LEGAL STANDARD
Summary judgment is warranted “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); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994). “[T]he trial court's task at the summary judgment motion . . . is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them.” Gallo, 22 F.3d at 1224. The moving party bears the initial burden of demonstrating an entitlement to judgment as a matter of law and identifying the matter or matters that “it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323; Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008).
A fact is material when it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (quoting Anderson, 477 U.S. at 248). In determining whether there are genuine issues of material fact, the Court is “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)) (internal quotation marks omitted); Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008) (noting that the Court must view all facts “in the light most favorable” to the non-moving party). However, a court is not required to draw any inference that is “blatantly contradicted by the record, so that no reasonable jury could believe it.” Scott v. Harris, 550 U.S. 372, 380 (2007).
If the movant meets its burden, “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” Jaramillo, 536 F.3d at 145. “[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (internal quotation marks and citation omitted). Rather, to survive a summary judgment motion, the opposing party must establish a genuine issue of fact by “citing to particular parts of materials in the record.” Fed.R.Civ.P. 56(c)(1)(A); Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). For a genuine dispute regarding a material fact to warrant a jury trial, there must be sufficient evidence supporting the claimed factual dispute “to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.” Gallo, 22 F.3d at 1224.
Genao is proceeding pro se and thus the Court must liberally construe his filings to raise the strongest arguments they suggest. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006). “Nonetheless, proceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party's bald assertions unsupported by evidence are insufficient to overcome a motion for summary judgment.” Parker v. Fantasia, 425 F.Supp.3d 171, 183 (S.D.N.Y. 2019) (alterations and internal quotation marks omitted) (quoting Houston v. Teamsters Local 210, 27 F.Supp.3d 346, 351 (E.D.N.Y. 2014)).
DISCUSSION
To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must show that there has been a denial of a right, privilege, or immunity secured by the Constitution or laws of the United States and that the deprivation of such right occurred under color of state law. See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988). Section 1983 creates no substantive rights; rather, a plaintiff bringing a § 1983 claim must demonstrate a violation of an independent federal constitutional or statutory right. See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617-18 (1979).
A. Genao's Excessive-Force Claim under the Fourteenth Amendment
Genao alleges that Officers Lisichkin and La Touche used unnecessary and excessive force when they relied on a dry, chemical-agent fire extinguisher to stop the fire in his cell on December 15, 2020. See Compl. at 5. Genao further alleges that the officers sprayed the fire extinguisher at him, and that the extinguisher's chemical agent made contact with his face, eyes and mouth, causing “inflammation of [his] mucus membranes, difficulty breathing, sneezing, and coughing.” Id. Defendants argue that Genao's excessive-force claim should be dismissed “because the video footage clearly shows that [Genao] started the fire, and that the officers' response to extinguish the fire was reasonable.” Defs.' Mem. at 1. Defendants contend that Genao's claim fails because he was only “incidentally sprayed with a fire extinguisher” in the course of the officers saving his life. Id. at 5-6. For the reasons explained below, I recommend that Defendants' motion be granted as to this claim.
In his Complaint, Genao alleged that Officer Hidalgo was the individual who had used the fire extinguisher. See Compl. at 5. After discovery, the parties now agree that Officers Lisichkin and La Touche were responsible for using the fire extinguisher to stop the fire. See Defs.' Mem. at 5 n.3; Pl.'s Mem. at 7.
Because Genao was a pretrial detainee at the time of the December 15th incident, his excessive-force claim is analyzed under the Fourteenth Amendment. Pridgen v. Iland Jail, No. 22-CV-2294 (ER), 2023 WL 1438375, at *5 (S.D.N.Y. Feb. 1, 2023). “The right of pretrial detainees to be free from excessive force amounting to punishment is protected by the Due Process Clause of the Fourteenth Amendment.” Id. (citing United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999)). A pretrial detainee's excessive-force claim under the Fourteenth Amendment requires a showing that the “force purposely or knowingly used” was “objectively unreasonable.” Id. (quoting Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015)) (internal quotation marks omitted).
Previously, pretrial detainees asserting excessive-force claims had to satisfy a subjective and objective element, akin to what is required to prove a claim under the Eighth Amendment. See United States v. Walsh, 194 F.3d 37, 47-49 (2d Cir. 1999). A plaintiff had to show that the alleged wrongdoing was “objectively sufficiently serious or harmful enough” to cause a constitutional violation, id. at 50, and that the alleged wrongdoer subjectively “had the necessary level of culpability, shown by actions characterized by wantonness in light of the particular circumstances surrounding the challenged conduct,” Sims v. Artuz, 230 F.3d 14, 21 (2d Cir. 2000) (citations and internal quotation marks omitted). The Supreme Court's decision in Kingsley, however, “altered the test previously used in the Second Circuit for claims arising under the Fourteenth Amendment,” eliminating the subjective element. Portillo v. Webb, No. 16-CV-4731 (VEC) (GWG), 2022 WL 2337380, at *5 (S.D.N.Y. June 29, 2022), report and recommendation adopted, 2022 WL 16736980 (S.D.N.Y. Nov. 7, 2022) (citations omitted).
“Objective unreasonableness ‘turns on the facts and circumstances of each particular case,' and is to be evaluated ‘from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.'” Douglas v. City of New York, No. 18-CV-9327 (KPF), 2022 WL 294075, at *6 (S.D.N.Y. Feb. 1, 2022) (quoting Kingsley, 576 U.S. at 397). The Supreme Court in Kingsley articulated certain factors a court should look to when assessing the reasonableness of the force used, including:
the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.576 U.S. at 397; accord Portillo, 2022 WL 2337380, at *6; Prigden, 2023 WL 1438375, at *6. “The factfinder must also ‘take account of the legitimate interests in managing a jail, acknowledging as part of the objective reasonableness analysis that deference to policies and practices needed to maintain order and institutional security is appropriate.”' Frost v. New York City Police Dep't, 980 F.3d 231, 252 (2d Cir. 2020) (quoting Kingsley, 576 U.S. at 400).
Of course, an officers' use of a chemical agent, like a fire extinguisher or pepper spray, when required to respond to a fire or a fight is not per se unreasonable. See, e.g., Burke v. Browns, 653 Fed.Appx. 683, 698-99 (11th Cir. 2016) (holding that a correctional officer spraying a fire extinguisher into an inmate's cell after the inmate started a fire “is a response commensurate to the significant threat posed by a prison fire” and thus not “malicious and sadistic”). Instead, a court's review of an officer's use of a chemical agent will depend on the manner in which the chemical agent was used. See Quinones v. Rollison, No. 18-CV-1170 (AJN), 2020 WL 6420181, at *4-5 (S.D.N.Y. Nov. 1, 2020) (explaining that the inquiry is “context specific, turning upon ‘contemporary standards of decency'”) (citations omitted). For example, courts have found that the use of pepper spray to maintain or restore discipline among inmates does not amount to excessive force “if the force was applied in a good-faith effort.” Stinson v. City of New York, No. 18-CV-00027, 2021 WL 3438284 (LAK) (BCM), at *13 (S.D.N.Y. July 6, 2021); see also Berry v. City of New York, No. 12-CV-7819 (RWS), 2014 WL 2158518, at *5 (S.D.N.Y. May 22, 2014) (finding evidence that officer used pepper spray to break up violent fight between inmates insufficient to raise a genuine dispute about excessive force and thus granting summary judgment to officer); Boomer v. Lanigan, No. 00-CV-5540 (DLC), 2002 WL 31413804, at *5-6 (S.D.N.Y. Oct. 25, 2002) (correction officer did not use excessive force when he sprayed “chemical agent” at pre-trial detainee, after detainee refused to follow repeated orders to remove his arm from food slot in his cell); Beauvoir v. Falco, 345 F.Supp.3d 350, 369 (S.D.N.Y. 2018) (granting defendants summary judgment in a § 1983 case because the “use of the pepper spray . . . was permissible in the context of needing to maintain a baseline of order in the prison system,” where “Plaintiff repeatedly resisted multiple officers' orders”). Likewise, use of a chemical agent, like a fire extinguisher, would not amount to excessive force if the officers only inadvertently sprayed the inmate with the fire extinguisher while attempting to end a fire. See Beckford v. Portuondo, 151 F.Supp.2d 204, 216 (N.D.N.Y. 2001) (explaining that Eighth Amendment assault claim would fail if plaintiff was “not intentionally spray[ed]” but rather was “inadvertently” sprayed).
Based on the undisputed facts, no reasonable jury could conclude that Officers Lisichkin's and La Touche's use of the fire extinguisher was objectively unreasonable. To begin, Genao does not dispute that he started a fire in his cell on December 15, 2020, at approximately 9:32 p.m. Nor does he dispute that there was a need for the officers to put out the fire. And, it is readily apparent from the video that the fire was sizeable. The flames and smoke spilled out of the cell through the sides of the door. See Video of Incident at 02:04:19-02:05:04. Given the nature of the fire, the amount of force used was commensurate with the emergency situation presented to the officers. In that regard, the video shows that Officers Lisichkin and La Touche sprayed the fire extinguisher only for as long as necessary to extinguish the flames and remove Genao from the cell. See id. at 02:05:04-02:05:20. Moreover, the officers' use of the fire extinguisher was proportional to the need for force. The video clearly demonstrates that, as the door to the cell opened, Officer Lisichkin immediately began spraying the fire extinguisher into the cell, while standing outside the door, and sprayed for only about four seconds. See id. at 02:05:04-02:05-08. The video also shows that after Officer La Touche was handed the fire extinguisher, he shifted his aim to target the large flames that spanned the entire left wall of the cell, by the door. Those flames became visible once the door to the cell had fully opened. See Id. at 02:05:16-02:05:20.
Although Genao claims that Officers Lisichkin and La Touche “purposely (not incidental[ly])” sprayed the chemical-agent fire extinguisher at him, see Coml. At 5; Pl.'s Mem. at 7, the Supreme Court has repeatedly admonished that a “court must make [the objective-reasonableness] determination from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.” Kingsley, 576 U.S. at 397. The video of the incident shows that the location of the fire within the cell would not have been readily apparent from the officers' vantage point outside of the cell, before the cell door had fully opened. However, even from outside the cell, the officers could have believed that the fire was large. Indeed, the red-orange glow of the flames was visible from the window on Genao's cell door, and black smoke and flames could be seen coming out of the cell through the sides of the door. See Video of Incident at 02:04:24-02:05:01. Further, the officers, responding to what appears from the video to be a sizeable fire, had only “seconds to assess the situation before acting.” Quinones, 2020 WL 6420181, at *5. Given the size of the fire and the fact that Genao was inside the cell, it was not objectively unreasonable for the officers to immediately begin spraying the fire extinguisher into Genao's cell once the cell door began to open. This is thus not a situation where the officers purposely sprayed Genao with a fire extinguisher while the fire was outside his cell, not in Genao's immediate location, or after the fire had been extinguished. Cf. Beckford, 151 F.Supp.2d at 209 (denying summary judgment on excessive-force claim where the prisoner started a fire in his cell, officers put out the fire, and, after the fire was extinguished, officers sprayed the prisoner with the fire extinguisher). In short, the video of the incident conclusively demonstrates that the officers' response to the fire was objectively reasonable. Defendants are thus entitled to summary judgment because Genao has not established a material issue of fact as to the objective element of his excessive-force claim.
B. Genao's Deliberate-Indifference Claim under the Fourteenth Amendment
Genao alleges that Captains Moise, Dillard and Fersov, and Warden Harvey were deliberately indifferent to his medical needs because he was rear-handcuffed and because neither he nor his cell were “decontaminated” of the residual chemical agent from the fire extinguisher before he was required to spend the night in the cell. See Compl. at 6-7. As to the rear-handcuffing, Defendants argue that Genao cannot sustain a claim for deliberate indifference because Genao received medical treatment promptly after the fire, and he has not shown that he suffered any injury resulting from being rear-handcuffed. Defs.' Mem. at 8. As for the failure to decontaminate his cell, Defendants assert that Genao's deliberate-indifference claim fails because the cell was cleaned after the fire and the conditions he remained in for approximately 15 hours did not subject him to an unreasonable safety risk. Defs.' Sup. Mem. at 3-4. For the reasons discussed below, I recommend that summary judgment be granted to Defendants with regards to Genao's deliberate-indifference claim based on the rear-handcuffing, but that summary judgment be denied as to Genao's claim based on the failure to decontaminate his cell.
As discussed, Genao's deliberate-indifference claim based on conduct that occurred while he was a pretrial detainee is properly analyzed under the Fourteenth Amendment. See Colon v. City of New York, No. 8-CV-3142 (HB), 2009 WL 1424169, at *5 (S.D.N.Y. May 21, 2009) (citing Bryant v. Mafucci, 923 F.2d 979, 983 (2d Cir. 1991)). “The standard to be applied is identical to the deliberate indifference standard for prisoners under the Eighth Amendment's prohibition against cruel and unusual punishment.” Id. (citing City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) and Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000)); see also Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009) (“Claims for deliberate indifference to a serious medical condition or other serious threat to the health or safety of a person in custody should be analyzed under the same standard irrespective of whether they are brought under the Eighth or Fourteenth Amendment.”).
Deliberate-indifference claims under the Fourteenth Amendment have two prongs, one objective, the other subjective: (1) that the inmate's “medical condition is objectively a serious one”; and (2) that the official acted with “deliberate indifference” to the inmate's medical needs. Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003). To satisfy the objective prong, “the inmate must ‘show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health.'” Vazquez v. City of New York, No. 21-CV-1573 (PAE) (VF), 2022 WL 17370156, at *6 (S.D.N.Y. Dec. 2, 2022) (quoting Darnell v. Pineiro, 849 F.3d 17, 30 (2d Cir. 2017)). A plaintiff must allege “a deprivation that is ‘objectively, sufficiently serious' that he was denied ‘the minimal civilized measure of life's necessities.'” Patterson v. Ponte, No. 16-CV-3156 (PAE) (JCF), 2017 WL 1194489, at *5 (S.D.N.Y. Mar. 30, 2017), report and recommendation adopted, 2017 WL 1405753 (S.D.N.Y. Apr. 17, 2017) (quoting Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001)). “In determining whether a condition is sufficiently serious, courts consider ‘whether the condition significantly affects an individual's daily activities,' and ‘whether [the condition] causes chronic and substantial pain.'” Bradshaw v. City of New York, 855 F. App'x. 6, 10 (2d Cir. 2021) (quoting Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006) (alterations in the original)). “Although the Constitution does not require ‘comfortable' prison conditions, the conditions of confinement may not ‘involve the wanton and unnecessary infliction of pain.'” Id. (quoting Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013)). Each condition “must be measured by its severity and duration, not the resulting injury.” Darnell, 849 F.3d at 32.
Regarding the subjective component, “[i]n Darnell, [the Second Circuit] clarified that deliberate indifference, in the context of a Fourteenth Amendment due process claim can be shown by something akin to recklessness, and does not require proof of a malicious or callous state of mind.” Charles v. Orange County, 925 F.3d 73, 86, (2d Cir. 2019) (citing Darnell, 849 F.3d at 33-34). Therefore, deliberate indifference under the Fourteenth Amendment, “can be established by either a subjective or objective standard: A plaintiff can prove deliberate indifference by showing that the defendant official “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 [the plaintiff's] health or safety.” Id. at 87 (quoting Darnell, 849 F.3d at 35 (emphasis and alterations in the original)). A plaintiff “need not show that a prison official acted or failed to act believing that harm would actually befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 842 (1970). A plaintiff must show “something more than mere negligence” to establish deliberate indifference in the Fourteenth Amendment context. Charles, 925 F.3d at 87 (quoting Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996)).
Nevertheless, prison officials and medical officers have wide discretion in treating prisoners, and “determinations of medical providers concerning the care and safety of patients are given a ‘presumption of correctness.'” Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F.Supp.2d 303, 312 (S.D.N.Y. 2001) (quoting Perez v. The County of Westchester, 83 F.Supp.2d 435, 440 (S.D.N.Y. 2000)). “[D]isagreements over medications . . . forms of treatment, or the need for specialists or the timing of their intervention, are not adequate grounds for a Section 1983 claim.” Id.
1. Rear-handcuffing
Beginning with Genao's claim that Captains Moise and Dillard were deliberately indifferent to his medical needs because they rear-handcuffed him, see Pl.'s Mem. at 10; Compl. at 6-7, Genao has not adduced facts to demonstrate that he suffers from a sufficiently serious medical condition. Genao states that he suffers from a “right hand contusion,” Pl.'s Mem. at 10, and that the rear-handcuffing subjected him to “pain,” Compl. at 8. But a hand contusion, without more, does not constitute a serious medical condition. Even a far worse medical condition, such as a broken or fractured hand, is not considered a serious medical condition, and here, Genao alleges that he has only a “contusion.” See Osacio v. Greene, No. 08-CV-0018, 2009 WL 3698382, at *5 (N.D.N.Y. Nov. 2, 2009) (finding that broken metacarpal (hand bone) does not constitute serious medical condition) (collecting cases); Ruiz v. Homerighouse, No. 01- CV-0266, 2003 WL 21382896, at *3 (W.D.N.Y. Feb. 13, 2003) (dismissing deliberate indifference claim as a matter of law because fractured metacarpal was not sufficiently serious medical condition).
Other than stating that he suffers from a contusion, Pl.'s Mem. at 10, Genao does not explain or otherwise elaborate as to the nature of his hand condition. His medical records also do not offer any explanation as to the nature of his hand condition. Dorland's Illustrated Medical Dictionary, however, defines a contusion as “an injury of a part without a break in the skin and with a subcutaneous hemorrhage,” and states that it is synonymous with a “bruise.” Contusion, Dorland's Illustrated Medical Dictionary (33d ed. 2020).
Moreover, beyond a conclusory statement that he was in “pain” because of the rear-handcuffing, Compl. at 5, Genao has not put forth any evidence substantiating or documenting the frequency and severity of the pain. “Conclusory allegations of pain are insufficient to satisfy the objective prong of a medical indifference claim.” Trapani v. Dagostino, No. 18-CV-0805 (DNH) (CFH), 2018 WL 9815971, at *16 (N.D.N.Y. Sept. 12, 2018), on reconsideration in part, 2019 WL 1054717 (N.D.N.Y. Mar. 6, 2019) (collecting cases); Flemming v. Wright, No. 11-CV-804, 2013 WL 4804493, at *10 (N.D.N.Y. Sept. 9, 2013) (plaintiff failed to allege a serious deprivation of medical care where he made “general allegations of pain” but “failed to allege specific factual material regarding” the alleged problem “or the degree of his pain during the time relevant to his claim”); Stapleton v. Pagano, No. 19-CV-952 (KMK), 2021 WL 3501163, at *5 (S.D.N.Y. Aug. 9, 2021) (“[T]hreadbare allegations” of pain “are insufficient, without more, to satisfy the first element of a deliberate indifference claim.”) (collecting cases).
Other than the medical directive stating “Front cuff only . . . No Rear Cuff,” see Compl. at 14, there is nothing in Genao's medical records detailing the nature of his hand contusion or any related hand injury, or the frequency and severity of the pain he allegedly suffers from that condition. Nor has Genao put forth any evidence to show that the actions of the officers in rear-handcuffing him exacerbated any pain or worsened his condition. See DelaCruz v. City of New York, No. 15-CV-3030, 2015 WL 2399346, at *2 (S.D.N.Y. May 19, 2015) (dismissing claim where plaintiff failed to “indicate how the prison bedding has caused or exacerbated his claimed injuries”); cf. Allen v. Koenigsmann, No. 19-CV-8173 (LAP), 2023 WL 2752375, at *22 (S.D.N.Y. Mar. 31, 2023) (evidence of “excruciating chronic pain resulting from a failed surgery” satisfied objective prong of the deliberate-indifference standard). Because Genao has failed to adduce any evidence from which a rational factfinder could conclude that his hand injury was sufficiently serious to constitute a serious medical condition, he has not satisfied the objective prong of a deliberate-indifference claim.
Even if Genao had shown that his hand injury was sufficiently serious, he has also failed to offer evidence that Captains Moise and Dillard acted intentionally or recklessly failed to act with reasonable care to mitigate the threat to Genao's health even though they knew, or should have known, that the condition posed an excessive risk to Genao's health. Swinson v. City of New York, No. 19-CV-11919 (KPF), 2022 WL 142407, at *9 (S.D.N.Y. Jan. 14, 2022). Arguing that Captains Moise and Dillard should have known not to rear-cuff him, Genao relies on the medical directive appended to his Complaint indicating that he requires restraint modifications such as: “Front cuff only . . . No Rear Cuff.” Compl. at 14. Even assuming that Captains Moise and Dillard knew of the medical directive, it is not sufficiently detailed with regard to the kind of hand condition Genao suffered. Although it indicates “no rear cuff” it does not explain why Genao could not be rear-cuffed and it does not identify any corresponding medical condition. See id. In short, the medical directive does not contain any information from which the officers could have, or should have, known that rear-handcuffing Genao would pose “an excessive risk to health or safety.” Swinson, 2022 WL 142407, at *9 (citing Darnell, 849 F.3d at 35) (emphasis added); see also Perkins v. Schriro, No. 11-CV-814 (GBD)(JCF), 2012 WL 5909892, at *2 (S.D.N.Y. Nov. 21, 2012) (finding corrections officer did not act in a sufficiently culpable manner when he was not made specifically aware of plaintiff's condition or its gravity beyond the fact that the condition was listed on a medical transfer form). Because Genao has failed to show that Captains Moise and Dillard acted with a “‘sufficiently culpable state of mind,'” Colon, 2009 WL 1424169, at *5 (quoting Farmer, 511 U.S. at 834), he fails to satisfy the subjective prong of a deliberate-indifference claim.
In sum, there is no evidence in the record to support either the subjective or objective prongs of Genao's deliberate-indifference claim as it relates to the officers' act of rear-cuffing him. I therefore recommend that summary judgment be granted to Defendants on Genao's Section 1983 claim based on the use of rear handcuffs.
2. Failure to Decontaminate
Genao also contends that Captains Moise, Dillard and Fersov, and Warden Harvey were deliberately indifferent to his medical needs when neither Genao nor his cell were “decontaminated” from the fire extinguisher's chemical-agent residue before he was returned to the cell to spend the night on December 15, 2020. See Pl.'s Mem. at 9-11; Compl. at 7-10. Genao states that he has asthma, see Pl.'s Mem. at 9, and that after the December 15th fire, he was denied a shower and returned to a cell that was not “decontaminated” from the residual chemical agents from the fire extinguisher, see Compl. at 7. Further, Genao alleges that he was not provided an inhaler, as indicated in the medical directive, that his “stomach hurt,” and his “chest was in pain.” See Compl. at 9. Genao's medical records indicate that he was examined on December 15, 2020, after the fire, and he had residue from the fire extinguisher on his hair and neck. See Genao's Medical Records at DEF964. The medical records also indicate that Genao was directed to continue using an inhaler as needed. Id. Additionally, medical records from December 16, 2020, the day after the fire, state that Genao had ingested dry powder leftover in his cell from a fire extinguisher. See id. at DEF947-48. That examination also revealed that Genao had not been decontaminated on December 15, 2020, and was eventually decontaminated at the clinic on December 16, 2020. Id. at DEF 949-50 (“The patient was brought to the clinic w/o a mask and he was not decontaminated.”). Photos of Genao's cell after the fire on December 15, show a cell that was covered in what appears to be layers of residual chemical agents from use of the fire extinguishers. See Defs.' Sup. Mem. at Ex. A.
First, Genao has adduced just enough evidence to raise an issue of fact as to whether he suffered from a sufficiently serious medical need. “The mere fact that [Genao] has an asthmatic condition does not necessarily mean that [he] has a serious medical need.” Scott v. DelSignore, No. 2-CV-029F, 2005 WL 425473, at *9 (W.D.N.Y. Feb. 18, 2005). However, Genao's asthma, coupled with the fact that he was left in a cell for approximately 15 hours with residual chemical agents in the cell and on his person, after having been denied a shower and not provided an inhaler, may support a finding by a jury that Genao suffered from a serious medical need, given his complaints of chest and stomach pain. See, e.g., Parsons v. City of New York, No. 17-CV-2707 (MKB), 2017 WL 2656135, at *4 (E.D.N.Y. June 19, 2017) (on motion to dismiss, allegations that inmate was sprayed with mace, had an allergy to chemical agents, and mace caused “burning to his eyes, face and skin” satisfied the objective element); Al-Bukhari v. Semple, No. 16-CV-1428 (SRU), 2017 WL 2125746, at *4 (D. Conn. May 16, 2017) (on motion to dismiss, prisoner pled sufficient facts to establish existence of serious medical need where he alleged “extreme pain as a result of being sprayed with a chemical agent” coupled with denials by staff of repeated requests for a shower to “decontaminate the agent”); West v. City of New York, No. 13-CV-5155 (PAE), 2014 WL 4290813, at *4 (S.D.N.Y. Aug. 28, 2014) (on motion to dismiss, prisoner adequately established the existence of a serious medical need with allegations that he was sprayed with mace, which resulted in “difficulty breathing, severe itching and burning, and skin discoloration”); Santos v. N.Y.C. Dep't of Correction, No. 08-CV-8790 (GBD) (THK), 2010 WL 1142066, at *10-11 (S.D.N.Y. Feb. 25, 2010) (on a motion to dismiss, prisoner established the existence of a serious medical need where he alleged he was sprayed in the face with a fire extinguisher, which caused pain in his face and left eye).
Defendants argue that Genao's allegation that he spent a night in a “cleaned, but not decontaminated cell for approximately 15 hours” does not rise to the level of a serious medical need. Defs.' Sup. Mem. at 4. In support of their argument, Defendants rely on cases where the allegations involved unsanitary or uncomfortable prison conditions, such as cells littered with food and urine, or cells without working toilets. See id. at 3-4 (citing Howard v. Brown, No. 15-CV-9930 (ER), 2018 WL 3611986, at *5 (S.D.N.Y. July 26, 2018) (plaintiff alleged he was “held for ‘several hours' in a cell littered with ‘food . . ., papers, urine, and other un-sanitary things,' with a nonworking toilet filled with waste, and no running water or ventilation”); Na v. Hvizdzak, No. 16-CV-592 (WQH) (WVG), 2018 WL 1225191, at *6 (S.D. Cal. Mar. 8, 2018) (plaintiff's cell conditions included “water on the floor, urine and feces near the toilet, and food splattered all over the wall”); Myers v. City of New York, No. 11-CV-8525 (PAE), 2012 WL 3776707, at *6-7 (S.D.N.Y. Aug. 29, 2012) (plaintiff alleged that he was “held in a warm room without air-conditioning,” where “[t]he only place to sit in the cell was on ‘a urine and filth laden floor'”); Singleton v. City of New York, No. 20-CV-8570 (ALC), 2022 WL 4620174, at *6 (S.D.N.Y. Sept. 30, 2022) (plaintiff alleged that he was forced to “‘sit and inhale filth [including urine and defecation] for hours . . . with no adequate ventilation'”).
However, being forced to remain in a cell littered with organic waste, like food and urine, although unsanitary and uncomfortable, is markedly different from being required to remain in a cell that contained a toxic substance, like the chemical agents from a fire extinguisher. Moreover, courts have found that exposure to toxic substance can lead to a serious medical need. See Parsons v. City of New York, No. 17-CV-2707 (MKB), 2017 WL 2656135, at *3 (E.D.N.Y. June 19, 2017) (exposure to chemical agent such as mace and denial of medical treatment was sufficient to allege a serious medical need for a deliberate-indifference claim); Wright v. New York State Dep't. of Corr. Servs., No. 06-CV-03400 (RJS) (THK), 2008 WL 5055660, at *10 (S.D.N.Y. Oct. 10, 2008), report and recommendation adopted, 2008 WL 5084193 (S.D.N.Y. Nov. 24, 2008), aff'd, 372 Fed.Appx. 175 (2d Cir. 2010) (“Exposure to unsafe levels of toxic substances, such as tobacco smoke or asbestos, may suffice as sufficiently dangerous conditions to satisfy the objective element.”) (citations omitted); Reid v. City of New York, No. 20-CV-644 (GBD) (JLC), 2021 WL 3477243, at *10 (S.D.N.Y. Aug. 6, 2021), report and recommendation adopted, 2021 WL 4177756 (S.D.N.Y. Sept. 14, 2021) (“Exposure to unsafe levels of toxic substances, such as tobacco smoke, can suffice as a sufficiently dangerous condition to satisfy the objective prong of an Eighth Amendment claim.”). Here, an issue of fact exists as to whether Genao was exposed to “an unreasonably high concentration,” Johnakin v. N.Y.C. Dep't of Corr., No. 11-CV-4807 (SLT) (LB), 2013 WL 5519998, at *17 (E.D.N.Y. Sept. 30, 2013), of toxic chemicals for a sufficient period of time so as to amount to a serious medical need, particularly given his asthma. See Simmons v. Gowanda Corr. Fac., No. 13-CV-0647, 2013 WL 3340646, at *2 (S.D.N.Y. July 1, 2013) (“For exposure to airborne asbestos fibers to create a substantial risk of serious harm . . . the intensity and duration of the exposure must both be significant.”).
Next, looking at the evidence in the light most favorable to Genao, there is sufficient evidence in the record for a jury to conclude that Captains Moise, Dillard and Fersov, and Warden Harvey were subjectively aware of, and consciously disregarded, an excessive risk to Genao's health when they returned him to his cell without a shower and without the cell having been decontaminated of residual chemical agents. Genao's medical directive lists “no chemical agents” as a restraint modification. See Compl. at 14. After his medical examination on December 15, 2020, Genao was directed to use an inhaler. See Genao's Medical Records at DEF963. Genao asserts that Captain Dillard was informed of this direction, see Pl.'s Mem. at 2, but that he nonetheless did not provide Genao with an inhaler, as indicated in the medical records, see Compl. at 9. Genao's medical records from December 15 indicated that he had fire extinguisher residue on his person, see Genao's Medical Records at DEF964, and photographs of Genao's cell showed that his cell was covered in what appears to be layers of chemical agent residue from the fire extinguisher, see Defs.' Sup. Mem. at Ex. A. Collectively, all of these factors could support a finding by a jury that the officers consciously disregarded an excessive risk to Genao's health. Compare Ennis v. Davies, No. 87-CV-1465 (LMM), 1990 WL 121527, at *3 (S.D.N.Y. Aug. 14, 1990) (holding that a jury could reasonably find that inmate's request for asthma medication was sufficient to make defendants aware of a serious medical need and failure to provide medication constituted deliberate indifference), with Ali v. Hogan, No. 12-CV-0104 (DNH) (RFT), 2013 WL 5503321, at *4 (N.D.N.Y. Sept. 12, 2013), report and recommendation adopted, 2013 WL 5466302 (N.D.N.Y. Sept. 30, 2013) (granting summary judgment on deliberate-indifference claim where plaintiff conceded that staff at psychiatric center provided him with his inhaler).
Defendants contend that because Genao's cell was decontaminated the next day, he “cannot advance a theory that anyone ignored his cell conditions or any potentially serious risk to his health.” Defs.' Sup. Mem. at 5. (citations omitted). But this argument ignores that Genao, who suffers from asthma, was left with residual chemical agents on his person and in his cell for around 15 hours. See Compl. at 7 (denial of shower); ECF No. 75, Ex. C at 228 (denial of shower); ECF No. 75, Ex. C at 220 (chest and stomach pain complaints); R. 56.1 Statement ¶ 21. This therefore is not a case where Genao was denied a shower or left in a decontaminated cell for only a short period of time. See Flemming v. Kemp, No. 09-CV-1185 (TJM) (DRH), 2012 WL 4094196, at *15 (N.D.N.Y. Aug. 30, 2012), report and recommendation adopted, 2012 WL 4094009 (N.D.N.Y. Sept. 17, 2012) (granting summary judgment and dismissing deliberate-indifference claim based on exposure to chemicals where officers escorted plaintiff directly to a decontamination room, provided him with a shower, and removed his clothing); see also Boyd v. Copeland, No. 18-CV-06302 (EAW), 2022 WL 2533315, at *5 (W.D.N.Y. July 7, 2022) (granting summary judgment and dismissing a deliberate-indifference claim based on exposure to chemicals where plaintiff contests the adequacy of decontamination that occurred approximately 15 to 20 minutes after the exposure). Moreover, video provided by Defendants in discovery showed that when the cell was ultimately decontaminated the following day, the crew cleaning the cell wore protective gear, including full body suits and masks. See ECF No. 75, Ex. B at 36-57. Given the medical directive and the fact that Genao was not permitted to shower and remained in a cell with residual chemical agents for 15 hours, a reasonable jury could find that Defendants should have known, or consciously disregarded, an excessive risk to Genao's health and safety, by allowing him to remain in the cell without decontamination.
Defendants also argue that Genao has not specified any injury beyond that “he ingested an unknown substance in his cell, and that he ultimately received medical treatment for the same.” Defs.' Sup. Mem. at 4 (citation and emphasis omitted). Evidence in the record, however, demonstrates that Genao did indeed complain of specific injuries. Genao states that he suffered “chest pains” while he was in the cell overnight. Pl.'s Mem. at 7. In his deposition, Genao testified that he suffered chest pain, as well as pain in his lungs, and he felt like he “couldn't breathe.” See ECF No. 75, Ex. C at 220. Genao also reported suffering from “irritation of throat and lungs” and “coughing,” as is evident from his Injury to Inmate Report and his medical records from December 15. See ECF No. 75, Ex. B at 5-6; Genao's Medical Records at DEF963-64. Defendants wholly ignore this evidence of Genao's complaints. And although Genao's allegations of injury are thin, Genao has proceeded pro se, without the benefit of counsel through all of fact discovery, and the Court is mindful that “pro se parties are to be given special latitude on summary judgment motions.” Salahuddin v. Coughlin, 999 F.Supp. 526, 535 (S.D.N.Y. 1998) (citations and internal quotations omitted); see also Samuels v. Schultz, No. 11-CV-6255, 2017 WL 1194376, at *3 (W.D.N.Y. Mar. 30, 2017) (affording leeway on a summary judgment motion when assessing pro se plaintiff's version of events); Atkinson v. Huntington, No. 15-CV-0065 (MAD) (TWD), 2016 WL 8735651, at *3 (N.D.N.Y. Aug. 19, 2016), report and recommendation adopted, 2016 WL 4991616 (N.D.N.Y. Sept. 19, 2016) (“Where a party is proceeding pro se, the court is obliged to ‘read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest.”') (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
In sum, because there is sufficient evidence to satisfy the objective and subjective prongs of Genao's deliberate-indifference claim based on the lack of decontamination, I recommend that Defendants' motion for summary judgment as to this claim be denied.
C. Municipal Liability
Genao alleges that DOCs has policies to “starve [inmates] out,” leave inmates “deadlocked” in their cells, not provide inmates with bed linens, falsify documentation, and violate medical directives. See Compl. at 8-12. Genao also alleges that the City failed to “adequately train, supervise, and discipline its employees,” and that it was aware of DOCs' policies and failed to intervene. Id. at 12.
“The language of § 1983 makes clear that ‘Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort.'” Diarra v. City of New York, No. 16-CV-7075 (VSB), 2018 WL 4538903, at *4 (S.D.N.Y. Sept. 20, 2018), aff'd, 771 Fed.Appx. 69 (2d Cir. 2019) (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978)). To succeed on his claim against the City under § 1983 based on acts of the individual defendants, Genao must show: “(1) actions taken under color of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an official policy of the municipality caused the constitutional injury.” Cowan v. City of Mount Vernon, 95 F.Supp.3d 624, 636 (S.D.N.Y. 2015) (quoting Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008)).
To successfully establish the existence of a ‘policy' or ‘custom,' Genao must prove: “(1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question; (3) a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage of which a supervising policy-maker must have been aware; or (4) a failure by policymakers to provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees.” Brandon v. City of New York, 705 F.Supp.2d 261, 276-77 (S.D.N.Y. 2010) (citations omitted). Merely providing “[p]roof of a single incident of unconstitutional activity” is insufficient to impose municipal liability, “unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) (plurality opinion); see also Cowan, 95 F.Supp.3d at 637 (“Generally, a custom or policy cannot be shown by pointing to a single instance of unconstitutional conduct by a mere employee of the municipality.”) (internal quotation marks omitted); Guerrero v. City of New York, No. 12-CV-2916 (RWS), 2013 WL 673872, at *3 (S.D.N.Y. Feb. 25, 2013) (“[B]oilerplate assertions of a municipal policy or custom . . . without offering any accompanying factual support . . . are insufficient to state a claim for [municipal] liability.”).
Defendants argue that Genao's claim for municipal liability should be dismissed because he has failed to adduce any evidence to support his allegations. See Defs.' Mem. at 13-14. In his response, Genao acknowledges that he must prove the existence of a policy or custom by the City, but although he states that the conduct here is the product of “decades of ongoing corruption and misconduct,” Genao does not point to any evidence in the record to support those allegations. Pl.'s Mem. at 12. “The mere assertion, however, that a municipality has such a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference.” Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993) (overruled on other grounds); see also Weir v. City of New York, No. 5-CV-9268 (DFE), 2009 WL 1403702, at *3 (S.D.N.Y. May 19, 2009). And although Genao argues that the municipal policies that caused his injuries were policies of “corruption and misconduct” that were “not in writing,” Pl.'s Mem. at 12, Genao has not adduced any evidence from which a reasonable factfinder could conclude that a policy or custom of either the DOCs or the City existed and that Defendants here were acting in accordance with that policy. See Brock v. City of New York, No. 15-CV-1832 (VSB), 2018 WL 3579099, at *12 (S.D.N.Y. July 25, 2018) (granting summary judgment on a municipal liability claim where the plaintiff offered “no direct or circumstantial evidence of a municipal policy, custom, or practice) (emphasis added); see also CILP Associates, L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (noting that, when the movant points to a lack of evidence on an element on which the nonmovant would bear the burden of proof at trial, “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment”).
Instead of pointing to evidence that shows the existence of a policy or custom by the City or DOCs, Genao cites to other cases that involved alleged instances of violence pursuant to a practice or policy implemented by DOCs and the City. See Pl.'s Mem. at 12 (citing Daniels v. City of New York, No. 17-CV-9960 (LGS), 2019 WL 251511, at *1 (S.D.N.Y. Jan. 17, 2019) and Inesti v. Hicks, No. 11-CV-2596 (PAC) (AJP), 2012 WL 2362626 (S.D.N.Y. June 22, 2012)). Genao may rely on those cases as evidence of a policy or custom here if those cases concerned practices and policies similar to those Genao alleges were in effect here. See Buari v. City of New York, 530 F.Supp.3d 356, 398 (S.D.N.Y. 2021) (“A plaintiff may [] plead the existence of de facto customs or policies ‘by citing to complaints in other cases that contain similar allegations.'”) (quoting Gaston v. Ruiz, No. 17-CV-1252 (NGP) (CLP), 2018 WL 3336448, at *6 (E.D.N.Y. July 6, 2018)). Such cases must involve complaints of “factually similar misconduct, be contemporaneous to the misconduct at issue in the plaintiff's case, and result in an adjudication of liability.” Id. at 399 (citations omitted).
As a threshold matter, however, the two cases Genao cites are factually dissimilar to the allegations in his Complaint. Daniels involved allegations of discrimination by DOCs employees, see 2019 WL 251511, at *1, and Inesti involved a failure to properly diagnose and provide medical care for a psychiatric condition, see Dkt. No. 11-CV-2596 at ECF No. 38. Further, neither case resulted in an adjudication of liability. In Daniels, the parties ultimately settled and the case was dismissed, see Dkt. No. 17-CV-9960 at ECF No. 76, and in Inesti, the defendants, who were New York City and New York State officials, prevailed at summary judgment, see Dkt. No. 11-CV-2596 at ECF No. 120. Therefore, Genao's reliance on these two cases to prove the existence of a widespread practice, policy, or custom is futile. See Isaac v. City of New York, No. 16-CV-4729 (KAM), 2018 WL 5020173, at *17 (E.D.N.Y. Aug. 6, 2018), report and recommendation adopted, 2018 WL 4583481 (E.D.N.Y. Sept. 24, 2018) (finding that other court cases could not establish a de facto policy or custom because they involved dissimilar misconduct, were resolved by settlement, or the defendant prevailed); see also Calderon v. City of New York, 138 F.Supp.3d 593, 613 (S.D.N.Y. 2015) (“None of the [16] lawsuits cited resulted in an adjudication or admission of liability and the number of suits does not suggest a pervasive illegal practice.”).
In short, because Genao has not pointed to any evidence supporting the existence of a policy or custom by the City, beyond his bare assertions, I recommend that summary judgment be granted to the City on Genao's claim of municipal liability. See Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 222 (2d Cir. 2004) (affirming summary judgment for County on § 1983 claim where plaintiff relied solely on conclusory assertions concerning the existence of a policy or custom).
D. Conditions of Confinement
Genao alleges that he was subjected to unconstitutional conditions of confinement when Defendants deprived him of clean clothing and bedding, and left him overnight in a cell and in clothing that had residual chemical agents. See Pl.'s Mem. at 15. Genao alleges that he was left with residual chemical agent on his clothing, face, and hair, and that he was denied access to a shower and was returned to his cell which also had residual chemicals from the fire extinguisher and had not been decontaminated. See Compl. at 7. Further, Genao avers that he was denied access to his personal property upon returning to his cell on December 15, 2020; access to bed linens, despite asking for a blanket “because the temperature was freezing” on December 15; and that he was not provided breakfast the next morning on December 16, 2020. See id. at 8.
Because Genao was a pretrial detainee at the time of these allegations, these claims, too, are analyzed under the Fourteenth Amendment. See Darnell, 849 F.3d at 29 (“A pretrial detainee's claims of unconstitutional conditions of confinement are governed by the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishments Clause of the Eight Amendment.”) (citations omitted). Claims of unconstitutional conditions of confinement under the Fourteenth Amendment must satisfy both a subjective and objective prong. See id. Under the subjective prong, Genao “must allege ‘that the officer acted with at least deliberate indifference to the challenged actions.”' Fullewellen v. City of New York, No. 1:21-CV-7219 (MKV), 2023 WL 2390551, at *5 (S.D.N.Y. Mar. 7, 2023) (quoting Darnell, 849 F.3d at 29). The subjective prong has been “defined objectively” by the Second Circuit, meaning that Genao “must allege facts suggesting that ‘the defendant-official 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.'” Id. (quoting Darnell, 849 F.3d at 35). To satisfy the objective prong, Genao must allege conditions that “either alone or in combination, pose an unreasonable risk of serious damage to . . . health.” Darnell, 849 F.3d at 30.
Genao's allegations that he was denied access to his property, linens and blankets for one night, and breakfast on one occasion are insufficient to satisfy the objective prong of his conditions-of-confinement claim, because whether these conditions are viewed independently or cumulatively, they do not pose an unreasonable or excessive risk of serious damage to his health. See Clay v. Lee, No. 13-CV-7662 (KMK), 2019 WL 1284290, at *6 (S.D.N.Y. Mar. 20, 2019) (explaining difference between claims of prolonged exposure to extreme temperatures, which may violate the Constitution, and claims of exposure to extreme temperatures for a short period of time, which courts have found do not violate the Constitution) (collecting cases); Stewart v. Howard, No. 09-CV-69 (GLS) (GHL), 2010 WL 3907137, at *3 (N.D.N.Y. Sept. 30, 2010) (denial of personal property not sufficiently serious to sustain a condition-of-confinement claim); McNair v. Ponte, No. 16-CV-4646 (PGG) (BCM), 2018 WL 3300675, at *11 (S.D.N.Y. Feb. 22, 2018), report and recommendation adopted, 2018 WL 1384522 (S.D.N.Y. Mar. 19, 2018), objections overruled, 2020 WL 4369000 (S.D.N.Y. July 30, 2020) (“It is well established that a single missed meal cannot satisfy even the objective prong of a conditions-of-confinement claim.”) (collecting cases).
However, Genao's allegations that he was denied a shower, clean clothes, and was left with residual chemical agents on his body and inside his cell for around 15 hours stand on different footing. At bottom, the allegations underlying this claim are the same allegations underlying Genao's claim of deliberate indifference to medical needs based on the failure to decontaminate his cell and person, see supra at 18, and the standards by which to analyze the two claims are the same. See Feliciano v. Anderson, No. 15 Civ. 4106 (LTS) (JLC), 2017 WL 1189747, at *10 (S.D.N.Y. Mar. 30, 2017) (“Although Darnell involved a challenge to conditions of confinement, the holding of the decision is broad enough to extend to medical deliberate-indifference claims.”); Darnell, 849 F.3d at 33 n.9 (“[D]eliberate indifference means the same thing for each type of claim under the Fourteenth Amendment,” including claims of deliberate indifference to medical needs and unconstitutional conditions of confinement); Sims v. City of New York, 788 Fed.Appx. 62, 63 n.3 (2d Cir. 2019) (summary order) (“Although Darnell involved a challenge to conditions of confinement, we have applied that decision's holding to medical deliberate-indifference claims.”) (citation omitted). As such, I recommend that Defendants' motion for summary judgment be denied as to this claim as well, for the same reasons as indicated for Genao's deliberate-indifference claim.
Genao seeks to enforce the criminal penalties of 18 U.S.C. § 1001 against Officers Lisichkin, Hidalo, La Touche, and Captain Fersov and Warden Harvey. See Compl. at 13. That statute criminalizes knowingly and willfully falsifying or misrepresenting material facts “in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.” 18 U.S.C. § 1001(a)(1)-(2). Genao argues that although 18 U.S.C. § 1001 is a federal criminal statute it should nonetheless be enforced in this case. See Pl.'s Mem. at 11.
Courts “have long recognized that crimes are prosecuted by the government, not by private parties.” Hill v. Didio, 191 Fed.Appx. 13, 14-15 (2d Cir. 2006) (summary order) (citation omitted). Further, “[w]here Congress has not explicitly provided for a private right of action under a criminal statute, the Supreme Court has rarely implied one.” Vidurek v. Pollen, No. 20-CV-6714 (CS), 2021 WL 4066503, at *11 (S.D.N.Y. Sept. 7, 2021) (citing Chrysler Corp. v. Brown, 441 U.S. 281, 316 (1979)).
As it specifically pertains to 18 U.S.C. § 1001, courts have recognized that Congress did not expressly provide a private right of action. See Caron v. TD Ameritrade, No. 19-CV-9015 (AJN), 2020 WL 7027593, at *3 (S.D.N.Y. Nov. 30, 2020) (no private right of action under 18 U.S.C. § 1001); Bender v. General Services Admin., No. 05-CV-6459 (GEL), 2006 WL 988241, at * 1 (S.D.N.Y. Apr. 14, 2006) (same); Ng v. HSBC Mortg. Corp., No. 07-CV-5434 (RRM) (VVP), 2010 WL 889256, at *9 (E.D.N.Y. Mar. 10, 2010) (same); Faraldo v. Kessler, No. 08- CV-0261 (SJF) (ETB), 2008 WL 216608, at *6 (E.D.N.Y. Jan. 23, 2008) (same); Sun-Ming Sheu v. Centex Home Equity, No. 06-CV-2235 (ARR), 2006 WL 8452032, at *2 (E.D.N.Y. Sept. 18, 2006) (same), aff'd, 295 Fed.Appx. 392 (2d Cir. 2008). And, courts have refused to imply a private right of action under Section 1001. See Sun-Ming Sheu, 2006 WL 8452032, at *2 (no implied right of action under 18 U.S.C. § 1001); see also Zahl v. Kosovsky, No. 08-CV-8308 (LTS) (THK), 2011 WL 779784, at *10 (S.D.N.Y. Mar. 3, 2011) (“[I]n determining whether a criminal statute implies a private right of action ‘the “dispositive question” is whether Congress intended to create a private right of action,' and courts ‘are to be “especially reluctant” to imply a private right of action where the statute explicitly provides a different remedy.'”) (quoting Alaji Salahuddin v. Alaji, 232 F.3d 305, 308 (2d Cir. 2000)). Accordingly, I recommend that this claim be dismissed, because there is no private right of action under 18 U.S.C. § 1001.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Defendants' motion for summary judgment be DENIED as to Genao's claims of deliberate indifference to medical needs and conditions of confinement based on the failure to decontaminate. I recommend that Defendants' motion for summary judgment be GRANTED as to the following claims: municipal liability, claims under 18 U.S.C. § 1001, deliberate indifference to medical needs as its relates to the rear-handcuffing, and conditions of confinement as it relates to the denial of his property, linens, blankets, and breakfast.
SO ORDERED.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), 6(b), 6(d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the Honorable Analisa Torres. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Fed.R.Civ.P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).