Date: 02-26-2017

Case Style:

Case Number: 15-2870

Judge: John G. Koeltl

Court: United States Court of Appeals for the Second Circuit on appeal from the Southern District of New York (New York County)

Plaintiff's Attorney: Scott Korenbaum

Defendant's Attorney: Zachary W. Carter

Description: 10 This is a case about unconstitutional conditions of
11 confinement for pretrial detainees. Twenty state pretrial
12 detainees (“the plaintiffs”)1 arrested on separate dates between
13 July 10, 2011, and July 23, 2013, brought individual § 1983
14 claims in the same complaint against the City of New York (the
15 “City”), New York City Police Department (“NYPD”) Captain
16 Kenneth Kobetitsch, and NYPD Captain William Tobin (the
17 “individual defendants”) (collectively, “the defendants”).2 The
1 The plaintiffs are Kevin Darnell, Germain Cano, Michael Glenn,
Michael McGhee, Kerry Scott, Travis Gordan, Gregory Maugeri,
Dmitriy Miloslavskiy, Steven Modes, Jacqueline Guarino, Michael
Spalango, Wesley Jones, Raymond Tucker, Yvonne Ming, Nancy
Viglione, Keith Jennings, Elli Vikki, Eric Cephus, Phillip
Singleton, and Deborah Gonzalez. Three additional plaintiffs
initially brought claims against the defendants, but, prior to
this appeal, two voluntarily dismissed their claims without
prejudice, and one passed away.
2 The John Doe defendants named in the original complaint are no
longer parties to this action because the plaintiffs did not
pursue claims against them in the amended complaints. During the
proceedings before the District Court, the plaintiffs
voluntarily dismissed with prejudice the claims against former
NYPD Commissioner Raymond Kelly. By letter dated September 22,
2016, the plaintiffs abandoned the appeal of the judgment
dismissing their claims against Raphael Pineiro, the former
4
1 plaintiffs alleged that they were each subjected to appalling
2 conditions of confinement while held pre-arraignment at Brooklyn
3 Central Booking (“BCB”) with deliberate indifference to the
4 deprivation of their Fourteenth Amendment due process rights.
5 Because BCB was only a pre-arraignment holding facility, no
6 plaintiff was held at BCB for more than twenty-four hours.
7 The United States District Court for the Eastern District
8 of New York (Kuntz, J.) granted summary judgment to the
9 defendants, reasoning that the plaintiffs failed to meet both
10 the objective and subjective requirements for a claim of
11 unconstitutional conditions of confinement based on a theory of
12 deliberate indifference. The District Court concluded that, with
13 respect to the “objective prong,” no plaintiff could establish
14 an objectively substantial deprivation of any constitutional
15 rights because no plaintiff actually suffered a serious injury,
16 or was “regularly denied his or her basic human needs or was
17 exposed to conditions that posed an unreasonable risk of serious
18 damage to his or her future health” for more than twenty-four
19 hours; nor could any plaintiff establish the “subjective prong”
20 of a deliberate indifference claim by proving that the
21 individual defendants were actually aware of any dangerous
22 conditions, or that the individual defendants acted unreasonably
First Deputy Commissioner of the NYPD. The judgment dismissing
the claims against Mr. Pineiro is accordingly affirmed.
5
1 in responding to any such conditions; nor, for similar reasons,
2 could the plaintiffs establish that the individual defendants
3 acted with punitive intent. See Cano v. City of New York, 119 F.
4 Supp. 3d 65, 74, 82, 85-86 (E.D.N.Y. 2015). Because no plaintiff
5 could prove a constitutional deprivation, the District Court
6 also held that the individual defendants were entitled to
7 qualified immunity, and that the plaintiffs could not establish
8 that the City was liable pursuant to Monell v. Dep’t of Soc.
9 Servs. of City of New York, 436 U.S. 658, 690–91 (1978). See
10 Cano, 119 F. Supp. 3d at 86-87.
11 The District Court issued its opinion shortly after the
12 Supreme Court’s decision in Kingsley v. Hendrickson, 135 S. Ct.
13 2466 (2015), in which the Supreme Court held that, for excessive
14 force claims brought under the Due Process Clause of the
15 Fourteenth Amendment, “a pretrial detainee must show only that
16 the force purposely or knowingly used against him was
17 objectively unreasonable.” Id. at 2473. The Court rejected the
18 requirement that, for such claims, a pretrial detainee establish
19 a state of mind component to the effect that the official
20 applied the force against the pretrial detainee “maliciously and
21 sadistically to cause harm.” Id. at 2475 (citation omitted). The
22 District Court’s opinion was also issued two weeks before this
23 Court’s decision in Willey v. Kirkpatrick, 801 F.3d 51, 66-68
24 (2d Cir. 2015), in which this Court held that while the proper
6
1 inquiry for a conditions of confinement claim is by reference to
2 the duration and severity of the conditions, the claim did not
3 require a “minimum duration” or “minimum severity” to reach the
4 level of a constitutional violation. This Court further made
5 clear that a “serious injury is unequivocally not a necessary
6 element of an Eighth Amendment [conditions of confinement]
7 claim.” Id. at 68.
8 The District Court did not analyze the implications of
9 Kingsley in its opinion. Moreover, the District Court denied the
10 plaintiffs’ motion for reconsideration based on Willey, as well
11 as the plaintiffs’ later motion for reconsideration of the order
12 denying the first motion for reconsideration, because the
13 District Court found that the plaintiffs’ appeal of the summary
14 judgment order divested it of jurisdiction over the case.
15 Among other issues, this case requires us to consider
16 whether, consistent with Willey, and the precedents on which it
17 is based, appalling conditions of confinement cannot rise to an
18 objective violation of the Fourteenth Amendment’s Due Process
19 Clause so long as the detainee is subjected to those conditions
20 for no more than twenty-four hours, and the detainee does not
21 suffer an actual, serious injury during that time. This case
22 also requires us to consider whether Kingsley altered the
7
1 standard for conditions of confinement claims under the
2 Fourteenth Amendment’s Due Process Clause.3
3 For the reasons explained below, we affirm in part, and
4 vacate in part, the District Court’s judgment, and remand the
5 case to the District Court for further proceedings.
6 I.
7 In reviewing the District Court’s grant of summary judgment
8 in favor of the defendants, “we construe the evidence in the
9 light most favorable to the Plaintiffs, drawing all reasonable
10 inferences and resolving all ambiguities in their favor.” CILP
11 Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 118
12 (2d Cir. 2013) (citation and internal quotation marks omitted).
13 We affirm the grant of summary judgment only where “there is no
14 genuine dispute as to any material fact and the movant is
15 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
16 Our review is de novo. Ruggiero v. County of Orange, 467 F.3d
17 170, 173 (2d Cir. 2006).
3 This case implicates the Due Process Clause of the Fourteenth
Amendment because it involves state pretrial detainees who are
seeking to vindicate their constitutional rights. See, e.g.,
Benjamin v. Fraser, 343 F.3d 35, 49 (2d Cir. 2003), overruled on
other grounds by Caiozzo v. Koreman, 581 F.3d 63, 70 (2d Cir.
2009). However, the analysis in this decision should be equally
applicable to claims brought by federal pretrial detainees
pursuant to the Due Process Clause of the Fifth Amendment. See
Malinski v. New York, 324 U.S. 401, 415 (1945) (Frankfurter, J.,
concurring) (“To suppose that ‘due process of law’ meant one
thing in the Fifth Amendment and another in the Fourteenth is
too frivolous to require elaborate rejection.”).
8
1 A.
2 This is a lawsuit on behalf of twenty individual plaintiffs
3 rather than a class action. As such, this is a review of a
4 judgment dismissing the separate claims of twenty plaintiffs
5 that were filed in a single complaint.
6 In its analysis, the District Court did not perform
7 individualized assessments of each plaintiff’s claims, reasoning
8 instead that, because no plaintiff’s confinement at BCB exceeded
9 twenty-four hours, and no plaintiff suffered an actual, serious
10 physical injury, no plaintiff could establish a violation. As
11 discussed below, the District Courted erred in its analysis.
12 Although the evidence differed with respect to the conditions
13 that each plaintiff was subjected to, we summarize the facts in
14 the light most favorable to the plaintiffs as a group to explain
15 the error in the District Court’s grant of summary judgment
16 dismissing the Second Amended Complaint. On remand, however, it
17 will be necessary for the District Court to analyze each
18 plaintiff’s claims, both with respect to the conditions of
19 confinement experienced by each plaintiff, and the personal
20 involvement of the individual defendants with respect to the
21 claims of each plaintiff.
9
1 B.
2 (i)
3 During the relevant period, BCB was a temporary holding
4 facility located at 275 Atlantic Avenue, Brooklyn, New York,
5 that held recently arrested pretrial detainees awaiting
6 arraignment. BCB has since been relocated to a different
7 facility in Brooklyn. The facility at issue in this dispute is
8 no longer used to hold pretrial detainees.4
9 Individual defendant Captain Kenneth Kobetitsch was the
10 commanding officer at BCB through July 2011, and his tenure only
11 overlapped with the detention of plaintiff Glenn.5 Thereafter,
12 beginning on August 29, 2011, individual defendant Captain
13 William Tobin became BCB’s commanding officer, a position he
14 still holds, and his tenure overlapped with the detention of the
15 other plaintiffs. During their respective tenures, Captain
16 Kobetitsch and Captain Tobin supervised the officers and the
17 staff at BCB. Captain Kobetitsch and Captain Tobin toured and
4 The plaintiffs initially brought claims against the defendants
seeking compensatory damages and injunctive relief, but, in
proceedings before the District Court, the plaintiffs abandoned
the request for injunctive relief.
5 By letter dated September 22, 2016, the plaintiffs abandoned
their claims against Captain Kobetitsch, except as to plaintiff
Glenn, because Captain Kobetitsch was the commanding officer of
BCB only at the time plaintiff Glenn was detained there. The
judgment dismissing the claims against Captain Kobetitsch---with
the exception of plaintiff Glenn’s claims against Captain
Kobetitsch---is accordingly affirmed.
10
1 inspected BCB daily, including its holding cells. Captain Tobin
2 testified that he monitored BCB for “cleanliness.”
3 BCB had eight holding cells, six designated for use by men
4 and two by women. Subordinate officers guarded detainees and
5 also purportedly received “training and instructions with
6 respect to, among other things, transferring detainees between
7 cells, ensuring that there [was] an appropriate number of
8 detainees in individual cells, so as to avoid overcrowding,
9 handling and providing food and beverages to detainees, proper
10 sanitation procedures, and the proper method for handling and
11 disposing of human excrement.”
12 (ii)
13 On separate dates between July 10, 2011, and July 23, 2013,
14 each plaintiff was arrested and detained in holding cells at
15 BCB.6 Because BCB is a temporary holding facility, each plaintiff
16 was held in custody at BCB from between ten to twenty-four
17 hours. While detained at BCB during the two-year period, each
18 plaintiff was allegedly subjected to one or more degrading
19 conditions of confinement that purportedly constitute nine types
20 of constitutional deprivations: (1) Overcrowding; (2) Unusable
21 Toilets; (3) Garbage and Inadequate Sanitation; (4) Infestation;
6 With the exception of plaintiffs Spalango and Tucker, who were
each detained at BCB on March 13, 2013, and plaintiffs Jennings
and Singleton, who were each detained at BCB on July 23, 2013,
the plaintiffs’ confinements at BCB did not overlap with each
other.
11
1 (5) Lack of Toiletries and Other Hygienic Items; (6) Inadequate
2 Nutrition; (7) Extreme Temperatures and Poor Ventilation; (8)
3 Deprivation of Sleep; and (9) Crime and Intimidation. The
4 evidence adduced related to each condition, construed in the
5 light most favorable to the plaintiffs, is discussed in turn.
6 1. Overcrowding. The plaintiffs consistently testified
7 that, for the majority of their respective confinements at BCB,
8 they and other detainees were packed into overcrowded cells
9 designed for, at best, one-half to one-third the actual
10 capacity. For example, one plaintiff testified that his holding
11 cell was so crowded that he could not determine if it had a
12 toilet. Another plaintiff described his cell as “having no room
13 to even stand” because it was “stuffed . . . like a can of
14 sardines.”
15 The plaintiffs testified that, because the cells were so
16 full, there was often only space to stand for hours at a time,
17 and that being forced to stand for hours continuously was
18 painful and degrading. Even when there was space in the cells,
19 the plaintiffs were reluctant to sit or lie down because the
20 floors were filthy. As one plaintiff testified, he only sat down
21 “out of extreme necessity” because he was “exhausted” and
22 “dehydrated.” While cells contained hard benches, there were not
23 nearly enough benches in any given cell to accommodate its
24 numerous occupants.
12
1 2. Unusable Toilets. Each cell at BCB contained, at best,
2 one exposed toilet that lacked a seat, lid, toilet paper, or
3 sufficient privacy partitions to conceal a toilet user from his
4 or her fellow holding mates. One plaintiff, who was too tired to
5 remain standing, testified that he curled up in a fetal position
6 next to the toilet, the only place he could find room to do so
7 in the cell. Some plaintiffs testified that they were kept for
8 stretches in cells that did not have any toilet at all.
9 Captain Tobin testified that, as a general practice,
10 toilets were cleaned and maintained regularly. Captain Tobin
11 also swore that “[d]etainees are never placed in a cell with a
12 non-functioning toilet” and that “[t]here is always at least one
13 roll of toilet paper provided in each cell.”
14 But the plaintiffs consistently testified that, for any
15 cell that did have a toilet, the toilet rim and bowl, along with
16 the surrounding floor and walls, were covered with some
17 combination of feces, maggots, urine, vomit, and rotten milk.
18 The toilets were frequently clogged and would overflow, spilling
19 their contents. The smell was horrific, with one plaintiff
20 describing the odor in the cells as “overbearing.” The
21 plaintiffs testified that roaches, mice, and other insects and
22 vermin were commonplace in the area around the toilets.
23 Under these circumstances, the plaintiffs testified that,
24 to varying degrees and for varying reasons, they found the
13
1 toilets unusable. Some testified that they had the tolerance to
2 urinate in the toilets, while others could not bring themselves
3 to use the toilets even for urination. Some plaintiffs testified
4 that they did not use the toilet for the eminently practical
5 reason that it was clogged or overflowing, leading those
6 plaintiffs to fear that any overflow would spill into the cell
7 and even land on other detainees standing, sitting, or lying
8 next to the toilet; while others found the toilet and
9 surrounding area simply too sickening and unsanitary to use. As
10 one plaintiff testified, “you would have to be really out of
11 your mind to use” the toilet.
12 One plaintiff testified that he defecated in his pants
13 because he could no longer control his bowels. Another plaintiff
14 testified that he used a toilet to defecate without any toilet
15 paper. That plaintiff was later given an almost depleted roll of
16 toilet paper, which did not have enough paper for him to clean
17 himself.
18 Some of the plaintiffs testified that they asked officers
19 to take them to other cells with less filthy toilets, requests
20 the officers almost invariably denied.
21 3. Garbage and Inadequate Sanitation. Given that many of
22 the toilets were clogged and overflowing, the plaintiffs
23 unsurprisingly testified that the holding cells themselves were
24 filthy. The cells had feces and dried urine caked to the floors.
14
1 The stench from the toilets drifted through the holding cells,
2 and caused one plaintiff to “dry heav[e] . . . yellow bile.” The
3 plaintiffs consistently testified that the floors were sticky
4 and covered with garbage and other unsanitary items, such as
5 vomit, dead roaches, decaying apple cores, old milk cartons, and
6 rotting sandwiches. One plaintiff testified that he could not
7 “recall a time [the cells were] sanitary for a human being.”
8 Pursuant to prison policy, the cells did not contain trash
9 cans and detainees were expected to throw their trash on the
10 floor. Captain Tobin swore that BCB’s cells were cleaned by BCB
11 custodial staff three times a day. However, the plaintiffs did
12 not testify to witnessing any BCB staff cleaning or maintaining
13 the cells.
14 4. Infestation. The plaintiffs consistently testified
15 that the holding cells were infested with rats, mice,
16 cockroaches, flies, and other insects and vermin. One plaintiff
17 testified that he saw mice and roaches coming out of a radiator;
18 another testified that he saw water bugs emerging from the
19 toilet and nearby exposed pipes; while another described seeing
20 roaches in the area where the food was stored, and under a sink.
21 Yet another plaintiff testified that he observed roaches
22 climbing on his sneaker. Finally, some plaintiffs testified that
23 they watched as rats and insects crawled into, out-of, and
24 around the boxes where food was stored.
15
1 5. Lack of Toiletries and Other Hygienic Items. The
2 plaintiffs generally testified that they were not provided with
3 basic toiletries, such as soap, tissues, toothbrushes,
4 toothpaste, and toilet paper, and that the officers generally
5 refused to provide these items even when explicitly requested.
6 One plaintiff, who was menstruating at the time of her
7 detention, began “bleeding all over [her]self.” She testified
8 that the officers were dismissive of her repeated requests for
9 sanitary napkins, and that she stopped asking for sanitary
10 napkins only when she heard an officer reprimand another
11 detainee for making similar requests. Likewise, another
12 plaintiff testified that he and his fellow detainees took turns
13 asking the officers for toilet paper. The officers responded by
14 threatening to delay arraignment if the detainees kept
15 “harassing [them].”
16 6. Inadequate Nutrition. The plaintiffs generally found
17 the food and water provisions nutritionally inadequate. The
18 plaintiffs testified that the sandwiches, and much of the other
19 food, were moldy, rotten, stale, or otherwise inedible. Some
20 plaintiffs described seeing vermin and insects crawling in and
21 around the food boxes, which caused those plaintiffs to avoid
22 the food. One plaintiff testified that he saw another detainee
23 receive a sandwich that had rat bite marks in it. Another
24 plaintiff, a practicing Jewish Rabbi, refused to eat any food
16
1 because it was not Kosher. When the plaintiff complained to an
2 officer, the officer replied, “[b]eggars can’t be choosy.” Under
3 these circumstances, some of the plaintiffs refused to eat any
4 food at BCB.
5 Many plaintiffs also testified that they did not trust that
6 the “drinking water” at BCB was potable because it was only
7 accessible from a grimy cooler on the floor, a filthy fountain,
8 or a dirty sink adjacent to the toilet. Some plaintiffs
9 testified that the water from those sources looked rusty and
10 otherwise foul.
11 Other plaintiffs testified that they did not have access to
12 any water or food, in any condition, for long periods of time.
13 One plaintiff testified that he asked for water, but that BCB
14 ran out of water. Another plaintiff testified that he did not
15 ask the officers for water or food after he witnessed the
16 officers ridiculing another detainee who had made the same
17 request.
18 Under these circumstances, many of the plaintiffs refused
19 to drink water and became dehydrated. Some plaintiffs were given
20 milk, but most refused to drink it because it was inexplicably
21 hot. The plaintiffs testified that the officers ignored the
22 plaintiffs’ concerns with respect to the milk and water.
23 7. Extreme Temperatures and Poor Ventilation. The holding
24 cells were located in areas of BCB that suffered from poor
17
1 ventilation, which exacerbated odor problems. In addition, the
2 plaintiffs testified that they were subjected to extreme
3 temperatures depending on the season and the location at BCB---
4 as such, a plaintiff might experience extreme heat and extreme
5 cold on the same day while moving through BCB. Some plaintiffs
6 testified that they found BCB unbearably hot while others
7 testified that they found it unbearably cold. One plaintiff
8 arrested in January 2012 testified that she removed her socks
9 and shoes due to the “ridiculous[] heat” even though she found
10 the cells, including the cell floors, disgusting and repulsive.
11 8. Deprivation of Sleep. The plaintiffs testified that
12 they generally could not sleep while at BCB for a variety of
13 reasons. The filthy state of the holding cells, coupled with the
14 sheer number of detainees housed in any given cell, made it
15 difficult to find enough room to lie down---many plaintiffs
16 refused to sit or lie down on the floors at all. While BCB
17 apparently had mats that it would provide detainees upon
18 request, many plaintiffs testified that they were unaware of
19 their availability and, regardless, did not see any provided in
20 the cells. To explain why she did not think to request a mat,
21 one plaintiff mused that, “if [the officers] would not give
22 somebody toilet paper, I didn’t think they” would give us mats.
23 The plaintiffs who were given mats testified that the mats were
18
1 filthy and, in any event, that there was no room in the cells to
2 lie down on them because of the overcrowding.
3 9. Crime and Intimidation. The plaintiffs witnessed other
4 detainees fight each other. Some plaintiffs testified that
5 officers did not monitor the cells to break up altercations. One
6 plaintiff testified that she was kicked, pushed, and verbally
7 abused by other detainees, and that there was no officer nearby
8 to intervene. Another plaintiff testified that he was verbally
9 accosted by two other detainees for about ten hours, but that
10 the officers ignored his requests to be transferred to another
11 cell.
12 (iii)
13 The plaintiffs paint a picture of BCB that is alarming and
14 appalling. The plaintiffs testified that they found the
15 conditions at BCB degrading, humiliating, and emotionally
16 scarring. One plaintiff testified: “I was not treated in a
17 humane manner. I believe if I were a dog, and that if the
18 A.S.P.C.A. was brought in and there was a dog in that cell, that
19 the police officers, whoever were responsible for the treatment
20 of that dog in that cell, that they would be brought up on
21 charges.” Another plaintiff had an anxiety attack that required
22 hospitalization, which he explained:
23 [S]tarted because of the deplorable conditions. I
24 tried holding my bowel for about four hours. I wasn’t
25 able to use the bathroom or any form of the bathroom
19
1 and I found it very hard to breathe. My chest was very
2 heavy and I tried to alert the guard. One guard just
3 walked by and when they were letting in more people I
4 told the guard I have to go to the hospital. I’m
5 having chest pains and it was maybe 30 minutes after
6 that they took me to the medical cell.
7
8 Another plaintiff testified that the experience “stay[ed]”
9 with him, explaining that it was something that was difficult to
10 forget.
11 However, the plaintiffs did not generally testify that they
12 suffered serious long term physical injuries or illnesses.
13 C.
14 (i)
15 The plaintiffs filed their initial complaint on June 26,
16 2013, which they amended on August 7, 2013, and again on
17 September 12, 2013. The defendants moved to dismiss the
18 plaintiffs’ claims pursuant to Rule 12(b)(6) of the Federal
19 Rules of Civil Procedure, a motion the District Court denied in
20 an Opinion and Order dated September 12, 2014. See Cano v. City
21 of New York, 44 F. Supp. 3d 324 (E.D.N.Y. 2014).
22 Although not the subject of the current appeal, this prior
23 opinion by the District Court provides helpful background. In
24 that opinion, the District Court noted that the defendants had
25 argued for a nearly “per se rule that no matter the conditions,
26 if a detainee is only exposed to them for less than twenty-four
27 hours, there can be no objective constitutional violation.” Id.
20
1 at 333. The District Court rejected the defendants’ argument,
2 reasoning that even temporary deprivations could be objectively
3 unconstitutional so long as those conditions were sufficiently
4 serious. See id. The District Court accordingly held that the
5 plaintiffs had “plausibly alleged that the conditions of
6 confinement at BCB deprived them of the minimal civilized
7 measures of life’s necessities and subjected them to
8 unreasonable health and safety risks.” Id. (citing Walker v.
9 Schult, 717 F.3d 119, 126 (2d Cir. 2013)).
10 In addition, relying on this Court’s decision in Caiozzo v.
11 Koreman, 581 F.3d 63, 70 (2d Cir. 2009), the District Court
12 concluded that, to state a claim for unconstitutional conditions
13 of confinement, the plaintiffs were required to allege that the
14 individual defendants had acted with deliberate indifference in
15 a subjective sense, namely that the defendants knew and
16 disregarded excessive risks to the plaintiffs’ health and
17 safety. Cano, 44 F. Supp. 3d at 332-34. The District Court held
18 that the plaintiffs had met this threshold, ruling that it was
19 plausible that the individual defendants were aware of the
20 challenged conditions based on, among other things, “their own
21 observations . . . external reports and complaints; complaints
22 filed by detainees; reports by the media; and prior lawsuits.”
23 Id. at 334.
21
1 The District Court also held that the plaintiffs had
2 adequately alleged punitive intent and personal involvement by
3 the individual defendants. See id. at 334-36.
4 (ii)
5 At the close of extensive discovery---which included, among
6 other things, the often uncontroverted deposition testimony of
7 each plaintiff---the defendants moved for summary judgment,
8 which the District Court granted in an Opinion and Order dated
9 August 13, 2015. Cano v. City of New York, 119 F. Supp. 3d 65
10 (E.D.N.Y. 2015).
11 The District Court began by stating that it would describe
12 the facts of the case “in the light most favorable to the
13 Plaintiffs, the non-moving party.” Id. at 70 (citation omitted).
14 However, the District Court never described the evidence of the
15 conditions that each individual plaintiff faced. Instead, the
16 District Court summarized the case by quoting allegations from
17 the Second Amended Complaint before proceeding to its discussion
18 of the case. See id. at 70-71. The District Court ultimately
19 held that the defendants were entitled to summary judgment for
20 several reasons. Id. at 72-73.
21 First, the District Court found that no jury could conclude
22 that any of the evidence of the challenged conditions of
23 confinement, “either taken in the aggregate or taken as a
24 whole,” objectively deprived any of the plaintiffs of their due
22
1 process rights. Id. at 81. In contrast to the state of law
2 described in its opinion denying the defendants’ motion to
3 dismiss, the District Court concluded that, “[t]he Second
4 Circuit and her constituent District Courts have routinely held
5 that occasional and temporary deprivations of sanitary and
6 temperate conditions, without more, do not constitute a
7 sufficiently serious deprivation under the Eighth Amendment to
8 constitute punishment.” Id. at 74. Accordingly, the District
9 Court held that, “while certain conditions may have been
10 uncomfortable for Plaintiffs, the evidence fails to establish
11 any Plaintiff was regularly denied his or her basic human needs
12 or was exposed to conditions that posed an unreasonable risk of
13 serious damage to his or her future health.” Id. (emphasis
14 added). In particular, the District Court reasoned that no
15 plaintiff could establish an objective constitutional
16 deprivation because no plaintiff could link any condition of
17 confinement to any actual serious injury, and because the period
18 of confinement did not exceed twenty-four hours for any
19 plaintiff. See, e.g., id. (“Plaintiffs fail to show any of them
20 were subjected to overcrowding for an extended period of time
21 and further fail to establish any of them were injured in any
22 way from the overcrowding.”); id. at 82 (“Most Plaintiffs did
23 not seek any sort of medical treatment and none of the
24 Plaintiffs provide evidence of having suffered any long term
23
1 physical or emotional harm due to time spent in the BCB.”); see
2 also id. at 74-82.
3 Second, the District Court concluded that no reasonable
4 jury could find that the plaintiffs had satisfied the subjective
5 prong of a deliberate indifference claim, namely that the
6 officers knew about conditions that posed excessive risks to the
7 plaintiffs’ safety and health. The Court found that the evidence
8 for the individual defendants---especially BCB’s log book
9 entries, which documented sporadic cleaning and maintenance
10 efforts, and Captain Tobin’s deposition testimony---established
11 that the individual defendants had reasonable practices in place
12 to ensure that the officers under their supervision acted
13 reasonably in response to any risks. Id. at 84-85. The District
14 Court found that the individual defendants had acted with, at
15 most, mere negligence. Id. at 84. Moreover, the District Court
16 found that none of the individual defendants could have known
17 about the allegedly unconstitutional conditions because there
18 was no evidence that the subordinate officers who actually
19 guarded the detainees informed the individual defendants of any
20 of the challenged conditions, which were not unconstitutional in
21 any event. See id. at 85.
22 Third, for substantially the same reasons, the District
23 Court concluded that there was no triable issue of fact as to
24
1 whether any individual defendant had acted with punitive intent.
2 See id. at 85-86.
3 Finally, because the plaintiffs had failed to establish a
4 triable issue of fact that any of them had suffered an objective
5 deprivation (and therefore failed to establish an underlying
6 constitutional violation), the District Court concluded that the
7 individual defendants were entitled to qualified immunity, and
8 that the plaintiffs could not prove that the City had any Monell
9 liability. See id. at 86-87.
10 (iii)
11 On August 14, 2015, the District Court entered judgment
12 dismissing the plaintiffs’ Second Amended Complaint. On August
13 28, 2015, this Court issued its decision in Willey. On the same
14 day, the plaintiffs informed the District Court of their
15 intention to move for reconsideration based on Willey, and the
16 District Court later set a briefing schedule whereby the motion
17 for reconsideration would be fully briefed by October 23, 2015.
18 On September 11, 2015, the plaintiffs timely filed a Notice
19 of Appeal challenging the District Court’s grant of summary
20 judgment. Later that day, the plaintiffs filed with the District
21 Court their motion for reconsideration pursuant to Rules 59(e)
22 and 60(b) of the Federal Rules of Civil Procedure, and Local
23 Rule 6.3(e) of the United States District Court for the Eastern
24 District of New York. On the same day, in a minute order (the
25
1 “First Minute Order”), the District Court denied the motion for
2 reconsideration, stating that the appeal divested it of
3 jurisdiction over the case.
4 The plaintiffs promptly moved for reconsideration of the
5 First Minute Order, arguing that, pursuant to Rule 4(a)(4)(B)(i)
6 of the Federal Rules of Appellate Procedure, the appeal did not
7 divest the District Court of jurisdiction to reconsider the
8 judgment. On September 12, 2015, in another minute order (the
9 “Second Minute Order”), the District Court denied without
10 elaboration the plaintiffs’ motion for reconsideration of the
11 First Minute Order. On October 5, 2015, the plaintiffs filed an
12 Amended Notice of Appeal challenging, in addition to the grant
13 of summary judgment, the First and Second Minute Orders.7
14 II.
15 A pretrial detainee’s claims of unconstitutional conditions
16 of confinement are governed by the Due Process Clause of the
7 It is unnecessary to reach the plaintiffs’ appeal challenging
the First and Second Minutes Orders, which were entered postjudgment.
Those Orders do not raise any substantial issues that
affect the disposition of this appeal. To the extent that the
plaintiffs’ Notice of Appeal divested the District Court of its
jurisdiction to hear the post-judgment motions, Rule 62.1 of the
Federal Rules of Civil Procedure permits district courts to
issue “indicative rulings” to appellate courts when “a timely
motion is made for relief that the court lacks authority to
grant because of an appeal that has been docketed and is
pending.” Fed. R. Civ. P. 62.1; see also Fed. R. App. P. 12.1.
In the indicative ruling, the district court may indicate if it
believes that the relief sought is meritorious, meritless, or
merits further consideration, and request that the appellate
court remand the case for further proceedings.
26
1 Fourteenth Amendment, rather than the Cruel and Unusual
2 Punishments Clause of the Eight Amendment. Benjamin v. Fraser,
3 343 F.3d 35, 49 (2d Cir. 2003), overruled on other grounds by
4 Caiozzo v. Koreman, 581 F.3d 63, 70 (2d Cir. 2009); see also
5 City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). A
6 pretrial detainee’s claims are evaluated under the Due Process
7 Clause because, “[p]retrial detainees have not been convicted of
8 a crime and thus ‘may not be punished in any manner—neither
9 cruelly and unusually nor otherwise.’” Iqbal v. Hasty, 490 F.3d
10 143, 168 (2d Cir. 2007) (quoting Benjamin, 343 F.3d at 49–50),
11 rev’d on other grounds sub nom., Ashcroft v. Iqbal, 556 U.S.
12 662, 678 (2009). A detainee’s rights are “at least as great as
13 the Eighth Amendment protections available to a convicted
14 prisoner.” City of Revere, 463 U.S. at 244.
15 A pretrial detainee may establish a § 1983 claim for
16 allegedly unconstitutional conditions of confinement by showing
17 that the officers acted with deliberate indifference to the
18 challenged conditions. See Benjamin, 343 F.3d at 50. This means
19 that a pretrial detainee must satisfy two prongs to prove a
20 claim, an “objective prong” showing that the challenged
21 conditions were sufficiently serious to constitute objective
22 deprivations of the right to due process, and a “subjective
23 prong”---perhaps better classified as a “mens rea prong” or
24 “mental element prong”---showing that the officer acted with at
27
1 least deliberate indifference to the challenged conditions. The
2 reason that the term “subjective prong” might be a misleading
3 description is that, as discussed below, the Supreme Court has
4 instructed that “deliberate indifference” roughly means
5 “recklessness,” but “recklessness” can be defined subjectively
6 (what a person actually knew, and disregarded), or objectively
7 (what a reasonable person knew, or should have known). See
8 Farmer v. Brennan, 511 U.S. 825, 836-37 (1994).
9 Relying on this Court’s decision in Caiozzo v. Koreman, 581
10 F.3d 63, 72 (2d Cir. 2009), the District Court concluded that
11 the elements for establishing deliberate indifference under the
12 Fourteenth Amendment were the same as under the Eighth
13 Amendment. Cano, 119 F. Supp. 3d at 72 (citing Caiozzo, 581 F.3d
14 at 72). Therefore, the District Court required the plaintiffs to
15 prove that, “(1) objectively, the deprivation the [detainee]
16 suffered was ‘sufficiently serious that he was denied the
17 minimal civilized measure of life’s necessities,’ and (2)
18 subjectively, the defendant official acted with ‘a sufficiently
19 culpable state of mind . . . , such as deliberate indifference
20 to [detainee] health or safety.’” Id. at 73 (quoting Walker, 717
21 F.3d at 125).
22 In applying this test, the District Court erred in two
23 respects. First, the District Court misapplied this Court’s
24 precedents in assessing whether the plaintiffs had established
28
1 an objectively serious deprivation. Second, we conclude that the
2 Supreme Court’s decision in Kingsley altered the standard for
3 deliberate indifference claims under the Due Process Clause.
4 A.
5 Under both the Eighth and Fourteenth Amendments, to
6 establish an objective deprivation, “the inmate must show that
7 the conditions, either alone or in combination, pose an
8 unreasonable risk of serious damage to his health,” Walker, 717
9 F.3d at 125, which includes the risk of serious damage to
10 “physical and mental soundness,” LaReau v. MacDougall, 473 F.2d
11 974, 978 (2d Cir. 1972). There is no “static test” to determine
12 whether a deprivation is sufficiently serious; instead, “the
13 conditions themselves must be evaluated in light of contemporary
14 standards of decency.” Blissett v. Coughlin, 66 F.3d 531, 537
15 (2d Cir. 1995) (citing Rhodes v. Chapman, 452 U.S. 337, 346
16 (1981)). For example, “[w]e have held that prisoners may not be
17 deprived of their basic human needs—e.g., food, clothing,
18 shelter, medical care, and reasonable safety—and they may not be
19 exposed to conditions that pose an unreasonable risk of serious
20 damage to [their] future health.” Jabbar v. Fischer, 683 F.3d
21 54, 57 (2d Cir. 2012) (citation and internal quotation marks
22 omitted).
23 “[C]onditions of confinement may be aggregated to rise to
24 the level of a constitutional violation, but ‘only when they
29
1 have a mutually enforcing effect that produces the deprivation
2 of a single, identifiable human need such as food, warmth, or
3 exercise.’” Walker, 717 F.3d at 125 (quoting Wilson v. Seiter,
4 501 U.S. 294, 304 (1991)). Unsanitary conditions, especially
5 when coupled with other mutually enforcing conditions, such as
6 poor ventilation and lack of hygienic items (in particular,
7 toilet paper), can rise to the level of an objective
8 deprivation. See id. at 127-28 (collecting cases).
9 In Willey v. Kirkpatrick, 801 F.3d 51, 68 (2d Cir. 2015),
10 this Court recently reiterated that the proper lens through
11 which to analyze allegedly unconstitutional unsanitary
12 conditions of confinement is with reference to their severity
13 and duration, not the detainee’s resulting injury. In Willey, a
14 convicted prisoner brought, among other claims, a claim under
15 the Eighth Amendment against officers at a prison who allegedly
16 exposed him to unsanitary conditions by confining him alone in a
17 cell with little airflow, and then incapacitating his toilet for
18 a period of, at a minimum, seven days “so that he was reduced to
19 breathing a miasma of his own waste.” Id. at 55. In addition, on
20 two separate occasions (during one of which the prisoner was
21 kept naked), the officers confined the prisoner to an
22 observation cell smeared with feces and urine. See id. at 55,
23 58.
30
1 In reinstating the prisoner’s claim, Willey reviewed Second
2 Circuit case law involving exposure to unsanitary conditions,
3 and, consistent with this Court’s precedents, made clear that
4 unsanitary conditions of confinement must be assessed according
5 to two components, severity and duration, on a case-by-case
6 basis.8 Id. at 66-68 (citing Gaston v. Coughlin, 249 F.3d 156 (2d
7 Cir. 2001); LaReau v. MacDougall, 473 F.2d 974 (2d Cir. 1972)).
8 While Willey acknowledged that “there are many exposures of
9 inmates to unsanitary conditions that do not amount to a
10 constitutional violation,” the Court rejected a “bright-line
11 durational requirement for a viable unsanitary-conditions claim”
12 or a “minimal level of grotesquerie required” before such a
13 claim could be brought. Id. at 68. As this Court explained,
14 “[t]he severity of an exposure may be less quantifiable than its
15 duration, but its qualitative offense to a prisoner’s dignity
16 should be given due consideration.” Id. Finally, the Court noted
17 that “serious injury is unequivocally not a necessary element of
18 an Eighth Amendment claim,” although “the seriousness of the
19 harms suffered is relevant to calculating damages and may shed
20 light on the severity of an exposure.” Id.
21 Willey also reinstated the prisoner’s claim based on the
22 provision of nutritionally inadequate food, concluding that the
8 The Court also noted that other Courts of Appeals are broadly
in accord with this analytical framework. See Willey, 801 F.3d
at 67 (collecting cases).
31
1 prisoner’s allegations that he was usually served stale bread
2 and rotten cabbage for one week were sufficient to allege an
3 objective deprivation. Id. at 69. This Court again rejected the
4 imposition of bright-line limits on inadequate nutrition claims,
5 noting that the prisoner’s “claim is not that all restricted
6 diets are unconstitutional, but that . . . . his restricted diet
7 was unusually unhealthy.” Id.
8 Some of the challenged conditions in this case, such as
9 inadequate nutrition, and unsanitary conditions---including
10 inoperable toilets and filthy cells---are clearly covered by
11 Willey. Other conditions at issue, such as overcrowding, do not
12 necessarily fall under Willey’s express ambit. However, Willey
13 was not breaking new ground, but rather reaffirming the law in
14 this Circuit, and its reasoning applies to the other challenged
15 conditions in this case.
16 While the claims before the Court in Willey related to
17 unsanitary conditions and inadequate nutrition, this Court has
18 been reluctant to impose bright-line durational or severity
19 limits in conditions of confinement cases, and has never imposed
20 a requirement that pretrial detainees show that they actually
21 suffered from serious injuries. See Walker, 717 F.3d at 129
22 (distinguishing Rhodes v. Chapman, 452 U.S. 337 (1981), by
23 reasoning that the Supreme Court did not hold, as a matter of
24 law, that the provision of a cell sufficient to afford a
32
1 pretrial detainee thirty-one square feet of space could not be
2 an unconstitutional deprivation of living space). Even in the
3 rare case where the Court has imposed bright-line limits, those
4 limits have been flexible and dependent upon the circumstances.
5 See Jabbar, 683 F.3d at 57 (“We hold that the failure of prison
6 officials to provide inmates with seatbelts on prison transport
7 buses does not, standing alone, violate the Eighth or Fourteenth
8 Amendments.” (emphasis added)).
9 Bright-line limits are generally incompatible with
10 Fourteenth Amendment teaching that there is no “static”
11 definition of a deprivation, see Blissett, 66 F.3d at 537
12 (citing Rhodes, 452 U.S. at 346), and the Supreme Court’s
13 instruction that any condition of confinement can mutually
14 enforce another, so long as those conditions lead to the same
15 deprivation, see Wilson, 501 U.S. at 304; see also Walker, 717
16 F.3d at 127-28. The latter point is implicit in Willey, 805 F.3d
17 at 68, which found that conditions that would normally have
18 nothing to do with sanitation (for example, poor air circulation
19 or being kept naked) can exacerbate the harmful effects of
20 unsanitary conditions. Accordingly, this Court has repeatedly
21 reiterated that conditions of confinement cases involve fact22
intensive inquiries. See, e.g., Willey, 805 F.3d at 68-69.
23 The standards for evaluating objective deprivations, as
24 articulated in Willey, thus extend to each of the nine
33
1 challenged conditions of confinement at issue in this case---(1)
2 Overcrowding; (2) Unusable Toilets; (3) Garbage and Inadequate
3 Sanitation; (4) Infestation; (5) Lack of Toiletries and Other
4 Hygienic Items; (6) Inadequate Nutrition; (7) Extreme
5 Temperatures and Poor Ventilation; (8) Deprivation of Sleep; and
6 (9) Crime and Intimidation---regardless of whether those
7 conditions relate to a deprivation involving sanitation or
8 inadequate nutrition. Each of these conditions must be measured
9 by its severity and duration, not the resulting injury, and none
10 of these conditions is subject to a bright-line durational or
11 severity threshold. Moreover, the conditions must be analyzed in
12 combination, not in isolation, at least where one alleged
13 deprivation has a bearing on another. See Wilson, 501 U.S. at
14 304 (noting the synergy between cold temperatures and the
15 failure to provide blankets in establishing an Eighth Amendment
16 violation). An overcrowded cell, for example, may exacerbate the
17 effect of unsanitary conditions. Similarly, poor ventilation may
18 be particularly harmful when combined with an overflowing
19 toilet. Inadequate nutrition may be compounded by infestation.
20 B.
21 The second element of a conditions of confinement claim
22 brought under the Due Process Clause of the Fourteenth Amendment
23 is the defendant’s “deliberate indifference” to any objectively
24 serious condition of confinement. Courts have traditionally
34
1 referred to this second element as the “subjective prong.” But
2 “deliberate indifference,” which is roughly synonymous with
3 “recklessness,” can be defined either “subjectively” in a
4 criminal sense, or “objectively” in a civil sense. As such, the
5 “subjective prong” might better be described as the “mens rea
6 prong” or “mental element prong.”
7 Just over two decades ago, in Farmer v. Brennan, 511 U.S.
8 825 (1994), the Supreme Court addressed the meaning of
9 “deliberate indifference” in the context of a convicted
10 prisoner’s deliberate indifference to conditions of confinement
11 claim brought under the Cruel and Unusual Punishments Clause of
12 the Eighth Amendment. The Supreme Court concluded that
13 deliberate indifference is properly equated with the mens rea of
14 “recklessness.” Id. at 836. However, the Court observed that
15 recklessness is not completely self-defining. See id. The Court
16 noted that recklessness could be defined according to an
17 objective standard akin to that used in the civil context, which
18 would not require proof of an official’s actual awareness of the
19 harms associated with the challenged conditions, or according to
20 a more exacting subjective standard akin to that used in the
21 criminal context, which would require proof of such subjective
22 awareness. See id. at 836-37.
23 The Supreme Court in Farmer rejected the application of an
24 objective standard for deliberate indifference as inappropriate
35
1 under the Cruel and Unusual Punishments Clause, holding that an
2 official “cannot be found liable under the Eighth Amendment for
3 denying an inmate humane conditions of confinement unless the
4 official knows of and disregards an excessive risk to inmate
5 health or safety; the official must both be aware of facts from
6 which the inference could be drawn that a substantial risk of
7 serious harm exists, and he must also draw the inference.” Id.
8 at 837. The Supreme Court based its holding on a close reading
9 of the text of the Cruel and Unusual Punishments Clause, which
10 “outlaws cruel and unusual ‘punishments,’” not “cruel and
11 unusual ‘conditions.’” Id. According to the Supreme Court,
12 “punishment” connotes a subjective intent on the part of the
13 official, which also requires awareness of the punishing act or
14 omission. See id. at 836-37. As the Court stated, “an official’s
15 failure to alleviate a significant risk that he should have
16 perceived but did not, while no cause for commendation, cannot
17 under our cases be condemned as the infliction of punishment.”
18 Id. at 838.
19 Farmer did not address deliberate indifference for pretrial
20 detainees under the Due Process Clause of the Fourteenth
21 Amendment. Following Farmer, this Court seven years ago in
22 Caiozzo, 581 F.3d at 66, discerned two lines of Fourteenth
23 Amendment deliberate indifference authority in this Circuit: one
24 that applied an objective standard and another that applied a
36
1 subjective standard. Caiozzo resolved the intra-circuit
2 divergence, holding that the same subjective standard for
3 deliberate indifference claims under the Eighth Amendment’s
4 Cruel and Unusual Punishments Clause should apply to deliberate
5 indifference claims under the Fourteenth Amendment’s Due Process
6 Clause, which the Court reasoned was “a logical extension of the
7 principles recognized in Farmer.”9 Id. at 71. This Court
8 explained that this Court’s jurisprudence for claims brought
9 under the Eighth Amendment had generally mirrored this Court’s
10 jurisprudence for claims under the Fourteenth Amendment. See id.
11 (citing Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000)).
12 Relying on the analysis of the Court of Appeals for the Fifth
13 Circuit in Hare v. City of Corinth, Mississippi, 74 F.3d 633
14 (5th Cir. 1996) (en banc), this Court highlighted that the
15 Supreme Court had given no indication that pretrial detainees
16 should be treated differently from their post-conviction
17 counterparts. See Caiozzo, 581 F.3d at 71-72 (quoting Hare, 74
18 F.3d at 649). This Court also noted that the majority of the
9 Caiozzo, 581 F.3d at 68, involved a claim for deliberate
indifference to medical needs under the Fourteenth Amendment.
Nevertheless, the Court’s interpretation of “deliberate
indifference” applied to any pretrial detainee claim for
deliberate indifference to “serious threat to . . . health or
safety”---such as from unconstitutional conditions of
confinement, or the failure-to-protect---because deliberate
indifference means the same thing for each type of claim under
the Fourteenth Amendment. See id. at 72.
37
1 other Courts of Appeals had reached a similar conclusion. See
2 id. at 71 n.4 (collecting cases).
3 The Supreme Court’s decision in Kingsley v. Hendrickson,
4 135 S. Ct. 2466 (2015)---in which the Supreme Court concluded
5 that excessive force claims brought under the Fourteenth
6 Amendment do not require the same subjective intent standard as
7 excessive force claims brought under the Eighth Amendment---has
8 undercut the reasoning in Caiozzo.10 The issue before the Supreme
9 Court in Kingsley was whether “to prove an excessive force claim
10 [under the Fourteenth Amendment], a pretrial detainee must show
11 that the officers were subjectively aware that their use of
12 force was unreasonable, or only that the officers’ use of that
13 force was objectively unreasonable.” Kingsley, 135 S. Ct. at
14 2470 (emphasis added). Kingsley involved a pretrial detainee’s
15 allegations that prison officers, who had undisputedly
16 deliberately used force against the detainee (by using a Taser
17 to incapacitate him), had, in doing so, acted with excessive
18 force. See id.
19 Regarding the requisite mens rea for the officer’s use of
20 force against the detainee, the Court held “that a pretrial
10 See also Ross v. Correction Officers John & Jane Does 1-5, 610
F. App’x 75, 77 n.1 (2d Cir. 2015) (summary order). The panel in
Ross did not reach the implications of Kingsley because it
concluded that the defendant-official there was entitled to
qualified immunity, which resulted in the dismissal of the
plaintiff’s claims. See id.
38
1 detainee must show only that the force purposely or knowingly
2 used against him was objectively unreasonable.”11 Id. at 2472-73.
3 The Court observed that, “[t]hus, the defendant’s state of mind
4 is not a matter that a plaintiff is required to prove.” Id. at
5 2472.
6 The Court reasoned that its interpretation of excessive
7 force claims under the Due Process Clause was consistent with
8 its prior precedents, including Bell v. Wolfish, 441 U.S. 520
9 (1979), where the Court had held that a pretrial detainee can
10 prevail on a claim brought under the Fourteenth Amendment
11 challenging “a variety of prison conditions, including a
12 prison’s practice of double-bunking” solely by proffering
13 objective evidence to show that the conditions were not
14 reasonably related to a legitimate, nonpunitive governmental
15 purpose. Kingsley, 135 S. Ct. at 2473 (citing Bell, 441 U.S. at
16 541-43). The Court found that the focus of Bell and its progeny
11 The Supreme Court in Kingsley framed its analysis by observing
that excessive force cases involve “two separate state-of-mind
questions. The first concerns the defendant’s state of mind with
respect to his physical acts—i.e., his state of mind with
respect to the bringing about of certain physical consequences
in the world. The second question concerns the defendant’s state
of mind with respect to whether his use of force was
‘excessive.’” Kingsley, 135 S. Ct. at 2472. The Court did not
address the first question because it was undisputed that the
officers had deliberately used force against the detainee by
purposefully and knowingly using the Taser on the detainee,
although the Court left open the possibility that the mental
state of recklessness might suffice for the first state-of-mind
question as well. Id.
39
1 on punishment “does not mean that proof of intent (or motive) to
2 punish is required for a pretrial detainee to prevail on a claim
3 that his due process rights were violated” or that the
4 “application of Bell’s objective standard should involve
5 subjective considerations.”12 Id. at 2473-74 (collecting cases).
6 The Court also concluded that Eighth Amendment excessive
7 force jurisprudence did not control the standard for excessive
8 force claims under the Fourteenth Amendment. See id. at 2475
9 (finding that Eighth Amendment cases “are relevant here only
10 insofar as they address the practical importance of taking into
11 account the legitimate safety-related concerns of those who run
12 jails”). The Court stressed the different functions of the
13 Eighth Amendment’s Cruel and Unusual Punishments Clause and the
14 Fourteenth Amendment’s Due Process Clause:
15 The language of the two Clauses differs, and the
16 nature of the claims often differs. And, most
17 importantly, pretrial detainees (unlike convicted
18 prisoners) cannot be punished at all, much less
19 “maliciously and sadistically.” Thus, there is no need
20 here, as there might be in an Eighth Amendment case,
21 to determine when punishment is unconstitutional. Id.
22 (citations omitted).
12 A pretrial detainee can establish a due process claim for
inhumane conditions of confinement either by proving an
official’s deliberate indifference to those conditions, or by
proving that that those conditions are punitive. See Benjamin,
343 F.3d at 50. Kingsley and its precedents are clear that the
two theories of liability are distinct. Nothing about our
interpretation of the proper standard for deliberate
indifference for due process purposes should be construed as
affecting the standards for establishing liability based on a
claim that challenged conditions are punitive.
40
1
2 Following the Supreme Court’s analysis in Kingsley, there
3 is no basis for the reasoning in Caiozzo that the subjective
4 intent requirement for deliberate indifference claims under the
5 Eighth Amendment, as articulated in Farmer, must apply to
6 deliberate indifference claims under the Fourteenth Amendment.
7 Caiozzo is thus overruled to the extent that it determined that
8 the standard for deliberate indifference is the same under the
9 Fourteenth Amendment as it is under the Eighth Amendment.13
10 Farmer is clear that “deliberate indifference” can be
11 viewed either subjectively or objectively. In the context of a
12 convicted prisoner asserting a violation of an Eighth Amendment
13 right to be free from cruel and unusual punishments, the Supreme
14 Court in Farmer defined deliberate indifference subjectively,
15 meaning that a prison official must appreciate the risk to which
16 a prisoner was subjected. The conditions of confinement were a
17 form of punishment, and, based on the Supreme Court’s
18 interpretation of the Cruel and Unusual Punishments Clause, the
19 prison official had to have subjective awareness of the
20 harmfulness associated with those conditions to be liable for
21 meting out that punishment.
22 After Kingsley, it is plain that punishment has no place in
23 defining the mens rea element of a pretrial detainee’s claim
13 This opinion has been circulated to all of the judges of the
Court prior to filing.
41
1 under the Due Process Clause. Unlike a violation of the Cruel
2 and Unusual Punishments Clause, an official can violate the Due
3 Process Clause of the Fourteenth Amendment without meting out
4 any punishment, which means that the Due Process Clause can be
5 violated when an official does not have subjective awareness
6 that the official’s acts (or omissions) have subjected the
7 pretrial detainee to a substantial risk of harm.
8 Kingsley held that an officer’s appreciation of the
9 officer’s application of excessive force against a pretrial
10 detainee in violation of the detainee’s due process rights
11 should be viewed objectively. The same objective analysis should
12 apply to an officer’s appreciation of the risks associated with
13 an unlawful condition of confinement in a claim for deliberate
14 indifference under the Fourteenth Amendment. A pretrial detainee
15 may not be punished at all under the Fourteenth Amendment,
16 whether through the use of excessive force, by deliberate
17 indifference to conditions of confinement, or otherwise.
18 Therefore, to establish a claim for deliberate indifference
19 to conditions of confinement under the Due Process Clause of the
20 Fourteenth Amendment, the pretrial detainee must prove that the
21 defendant-official acted intentionally to impose the alleged
22 condition, or recklessly failed to act with reasonable care to
23 mitigate the risk that the condition posed to the pretrial
24 detainee even though the defendant-official knew, or should have
42
1 known, that the condition posed an excessive risk to health or
2 safety. In other words, the “subjective prong” (or “mens rea
3 prong”) of a deliberate indifference claim is defined
4 objectively.
5 In concluding that deliberate indifference should be
6 defined objectively for a claim of a due process violation, we
7 join the Court of Appeals for the Ninth Circuit, which, sitting
8 en banc in Castro v. County of Los Angeles, 833 F.3d 1060, 1070
9 (9th Cir. 2016) (en banc), cert. denied, No. 16-655, 2017 WL
10 276190 (U.S. Jan. 23, 2017), likewise interpreted Kingsley as
11 standing for the proposition that deliberate indifference for
12 due process purposes should be measured by an objective
13 standard.14 The Court of Appeals for the Ninth Circuit concluded
14 that Kingsley’s broad reasoning extends beyond the excessive
15 force context in which it arose.15 See id. at 1069 (“The
14 Castro dealt with deliberate indifference in a failure-toprotect
case, but---like this Court’s interpretation of
deliberate indifference, see note 9, supra---the interpretation
of deliberate indifference by the Court of Appeals for the Ninth
Circuit is equally applicable to a conditions of confinement
claim. See Castro, 833 F.3d at 1069-70 (overruling Clouthier v.
County of Contra Costa, 591 F.3d 1232 (9th Cir. 2010), which had
held that a subjective test applied to due process claims for
deliberate indifference to addressing serious medical needs);
Williams v. Fresno Cty. Dist. Attorney’s Office, No. 16-cv-00734
(DAD)(MJS), 2016 WL 5158943, at *4 (E.D. Cal. Sept. 20, 2016)
(applying Castro test to a due process claim for deliberate
indifference to conditions of confinement).
15 The defendants cite several decisions by other Courts of
Appeals that have continued to apply a subjective standard to
deliberate indifference claims for pretrial detainees after
43
1 underlying federal right, as well as the nature of the harm
2 suffered, is the same for pretrial detainees’ excessive force
3 and failure-to-protect claims.”).
4 The defendants argue that using an objective standard to
5 measure deliberate indifference---a similar standard to the one
6 used before Caiozzo, see, e.g., Benjamin, 343 F.3d at 51; Liscio
7 v. Warren, 901 F.2d 274, 276 (2d Cir. 1990), overruled by
8 Caiozzo, 581 F.3d at 71---risks that officials that act with
9 mere negligence will be held liable for constitutional
10 violations. But any § 1983 claim for a violation of due process
11 requires proof of a mens rea greater than mere negligence.16 See
12 Kingsley, 135 S. Ct. at 2472 (“[L]iability for negligently
13 inflicted harm is categorically beneath the threshold of
14 constitutional due process.” (citation omitted)). A detainee
15 must prove that an official acted intentionally or recklessly,
Kingsley. But none of those cases considered whether Kingsley
had altered the standard for deliberate indifference for
pretrial detainees. See, e.g., Brown v. Chapman, No. 15-3506,
2016 WL 683260 (6th Cir. Feb. 19, 2016); Moore v. Diggins, 633
F. App’x 672 (10th Cir. 2015) (summary opinion); Mason v.
Lafayette City-Par. Consol. Gov’t, 806 F.3d 268 (5th Cir. 2015);
Smith v. Dart, 803 F.3d 304, 310 n.2 (7th Cir. 2015) (noting, in
light of Kingsley, that the parties argued the state of mind
element but that “it is not at issue in this appeal”).
16 The reckless or intentional action (or inaction) required to
sustain a § 1983 deliberate indifference claim must be the
product of a voluntary act (or omission) by the official. See
Farmer, 511 U.S. at 835 (observing that the word “deliberate” in
“deliberate indifference” might “require[] nothing more than an
act (or omission) of indifference to a serious risk that is
voluntary, not accidental” (citation omitted)).
44
1 and not merely negligently. Indeed, pre-Caiozzo case law that
2 applied an objective standard was clear that officials could not
3 be found liable for negligent conduct. See, e.g., Liscio, 901
4 F.2d at 275.
5 The defendants also argue that the return to an objective
6 definition of deliberate indifference will open the flood-gates
7 to litigation. The argument is unpersuasive. Prior to Caiozzo,
8 some courts in this Circuit applied an objective standard for
9 deliberate indifference. Caiozzo chose to apply a subjective
10 standard to deliberate indifference because this Court thought
11 that it was more consistent with Farmer, not because of any
12 concerns that an objective standard would prompt the filing of
13 non-meritorious claims. Consistency with the Supreme Court’s
14 decision in Kingsley now dictates that deliberate indifference
15 be measured objectively in due process cases.
16 III.
17 A.
18 The District Court erroneously granted summary judgment for
19 the defendants on the basis that no jury could find that the
20 nine challenged conditions of confinement in this case,
21 considered together or separately, amounted to an objective
22 constitutional deprivation because no plaintiff could establish
23 a regular deprivation lasting more than twenty-four hours, or an
24 actual serious injury or sickness. However, the plaintiffs have
45
1 adduced substantial evidence, much of it uncontroverted, that
2 they were subjected to appalling conditions of confinement to
3 varying degrees and for various time periods. While we recognize
4 that the District Court did not have the benefit of this Court’s
5 guidance in Willey, the plaintiffs’ claims should not have been
6 dismissed on the grounds that the conditions in this case did
7 not exceed ten to twenty-four hours, or result in serious
8 injury.
9 The District Court repeatedly stressed that the plaintiffs
10 were not regularly denied humane conditions of confinement:
11 “Plaintiffs only complain of such issues for a short period of
12 time—an average of ten to twenty-four hours—with nothing more.”
13 Cano, 119 F. Supp. 3d at 73; see also, e.g., id. at 75 (“[T]he
14 uncontroverted evidence establishes that no Plaintiff was
15 regularly deprived access to a toilet.”); id. at 77 (“Here, not
16 a single Plaintiff was exposed to urine, feces, and/or vomit for
17 anything more than a limited period of time because no Plaintiff
18 was held at BCB for more than one twenty-four hour period.”);
19 id. at 79 (“[T]here is no evidence that a single Plaintiff was
20 regularly denied any such toiletry during his or her stay at BCB
21 . . . .”). The District Court essentially ruled that no set of
22 conditions, no matter how egregious, could state a due process
23 violation if the conditions existed for no more than ten to
24 twenty-four hours. This was error. Willey, 801 F.3d at 68.
46
1 The District Court also repeatedly stressed the lack of any
2 actual serious injury or illness in the case. See, e.g., Cano,
3 119 F. Supp. 3d at 82 (“Most Plaintiffs did not seek any sort of
4 medical treatment and none of the Plaintiffs provide evidence of
5 having suffered any long term physical or emotional harm due to
6 time spent in the BCB.”). In Willey, 801 F.3d at 68, this Court
7 rejected the argument that a plaintiff must prove a serious
8 injury in order to establish a constitutional violation due to
9 inhumane conditions of confinement.
10 The defendants argue that the District Court’s judgment
11 should be affirmed based on an assessment of the severity and
12 duration of the conditions at issue. They argue that Willey
13 supports their position given its admittedly more extreme facts.
14 They contend that those are the types of facts that constitute
15 an objective deprivation. They further contend that no plaintiff
16 in this case actually suffered a long term, grievous physical or
17 emotional injury, a not-so-subtle attempt to bring the standard
18 full circle back to evaluating objective deprivation by injury.
19 Ultimately, the defendants’ theory appears to be that state
20 officials are free to set a system in place whereby they can
21 subject pretrial detainees awaiting arraignment to absolutely
22 atrocious conditions for twenty-four hour periods (and perhaps
23 more) without violating the Constitution so long as nothing
24 actually catastrophic happens during those periods. That is not
47
1 the law. As the District Court aptly stated in denying the
2 defendants’ motion to dismiss, “[o]ur Constitution and societal
3 standards require more, even for incarcerated individuals, and
4 especially for pretrial detainees who cannot be punished by the
5 state.” Cano, 44 F. Supp. 3d at 333. This Court’s cases are
6 clear that conditions of confinement cases must be evaluated on
7 a case-by-case basis according to severity and duration, and
8 instructs that a pretrial detainee’s rights are at least as
9 great as those of a convicted prisoner. Based on the record, the
10 gradation between the conditions of confinement at issue in this
11 case, and those at issue in Willey, may speak to damages, not
12 the absence of an objective constitutional deprivation.
13 B.
14 In addition, the District Court granted summary judgment to
15 the individual defendants because it concluded that the
16 plaintiffs could not establish that the individual defendants
17 had acted with subjective deliberate indifference, as opposed to
18 objective deliberate indifference. The District Court neither
19 analyzed Kingsley, nor had the benefit of our interpretation of
20 Kingsley as set forth in this opinion, which inures to the
21 benefit of the plaintiffs. The defendants argue that the
22 judgment should nevertheless be affirmed based on the standard
23 for deliberate indifference articulated here. The defendants’
24 argument should be addressed in the first instance by the
48
1 District Court. The purported deliberate indifference of the
2 individual defendants must be assessed on an individualized
3 basis with respect to each plaintiff.17
4 C.
5 The District Court also erred in its application of the
6 well-settled standards for deciding a motion for summary
7 judgment. The District Court did not construe the evidence in
8 the light most favorable to the plaintiffs, nor did it draw all
9 reasonable inferences in their favor.
10 For example, the District Court justified the rejection of
11 the plaintiffs’ inadequate nutrition claims in part by noting
12 that plaintiff Vikki had “claimed that BCB served ‘wonderful
13 cheese and bologna sandwiches.’” Cano, 119 F. Supp. 3d at 80.
14 Although not reflected in the District Court’s opinion,
17 The defendants also argue on appeal that the plaintiffs have
failed to establish that the individual defendants had any
personal involvement in any of the challenged conditions of
confinement. As counsel for the defendants conceded at oral
argument, although the defendants raised the personal
involvement argument on their motion to dismiss, they did not
renew the argument in their motion for summary judgment. In
their summary judgment papers, the defendants only raised the
personal involvement argument with respect to the former First
Deputy Commissioner of the NYPD, Raphael Pineiro, who is no
longer a party to this action. See note 2, supra. The
defendants’ argument is accordingly not preserved for review and
deemed waived. See, e.g., Wal-Mart Stores, Inc. v. Visa U.S.A.,
Inc., 396 F.3d 96, 124 n.29 (2d Cir. 2005). In any event, the
plaintiffs’ claims against the individual defendants rely on the
evidence that the individual defendants personally toured BCB on
a daily basis, and were thus aware of the conditions at the
holding facility.
49
1 plaintiff Vikki later clarified in her deposition that she did
2 not eat the sandwiches “[b]ecause the cheese was dry, the bread
3 was dry, and [she] wouldn’t feed it to [her] dog.” Construed in
4 the light most favorable to the plaintiffs, plaintiff Vikki’s
5 comment about “wonderful” sandwiches was sarcastic.
6 In another example, the District Court noted that plaintiff
7 Guarino had asked for a sanitary napkin to clean herself because
8 she was menstruating and “bleeding all over [her]self,” but the
9 District Court indicated that there was no proof that “any
10 officer at BCB acted with a sufficiently culpable state of
11 mind.” Id. at 84. This ignored plaintiff Guarino’s testimony
12 that, after repeatedly asking for a sanitary napkin, she only
13 desisted because she observed an officer threaten another
14 detainee with delayed arraignment if that detainee made any
15 additional requests.
16 Moreover, the District Court discounted as a mere matter of
17 preference the plaintiffs’ testimony that toilets were unusable,
18 reasoning that the plaintiffs were not “denied access” to
19 toilets. Id. at 75-76. That frames the plaintiffs’ testimony far
20 too narrowly. The plaintiffs’ testimony was that the toilets (if
21 there were any toilet in the particular cell) could not be used
22 for bowel movements because the toilets lacked privacy, and
23 because the toilets were not kept in such a way that they could
24 reasonably be used. The plaintiffs’ theory is that the toilets
50
1 were maintained by deliberately indifferent officers in such a
2 manner that they were unusable. It is not a reasonable inference
3 that the plaintiffs merely decided not to use the toilets,
4 especially when one plaintiff defecated in his pants, another
5 defecated without toilet paper, and a third had an anxiety
6 attack that required hospitalization because he was “holding
7 [his] bowel for about four hours.”
8 Contrary to the District Court’s ruling that the individual
9 defendants “establish[ed] [that] they responded reasonably to
10 any risk that existed,” see id. at 83-85, the evidence about
11 regularly scheduled cleanings and pest control visits, at best,
12 established that there are genuine disputes as to material facts
13 concerning the handling of sanitation issues at BCB. The fact of
14 thrice daily visits by cleaning crews, even if undisputed, would
15 not eliminate the force of the plaintiffs’ testimony that the
16 cleaning crews did not do what was needed to clean the cells, or
17 remedy the non-functioning toilets.
18 D.
19 The District Court also granted summary judgment for the
20 defendants on the grounds that the plaintiffs could not
21 establish a claim based on punitive intent; that the individual
22 defendants were entitled to qualified immunity; and that the
23 plaintiffs could not establish that the City had Monell
24 liability. In light of the foregoing rulings, we vacate these
51
1 rulings as well, although we do not decide how those issues
2 should be decided using the proper standards, including the
3 standards for a due process claim for deliberate indifference to
4 the conditions of confinement described above.
5 With respect to the plaintiffs’ punitive intent theory, the
6 District Court should reconsider the dismissal of that theory in
7 light of the evidence of the objectively serious conditions of
8 confinement.
9 With respect to qualified immunity and Monell liability,
10 the District Court based its rulings solely on its finding that
11 no plaintiff could establish an objective due process
12 deprivation. Because we disagree with that conclusion, we vacate
13 the qualified immunity and Monell liability rulings, and remand
14 those issues for further consideration in light of this
15 opinion.18 See, e.g., Jova v. Smith, 582 F.3d 410, 418 n.4 (2d
16 Cir. 2009) (per curiam) (remanding the issue of qualified
17 immunity where the district court did not consider the question
18 in the first instance).
18 The parties dispute whether letters from the Correctional
Association of New York---which the defendants contend support
the conclusion that the individual defendants are entitled to
qualified immunity---are inadmissible hearsay. The District
Court never ruled on this issue and, because we do not reach the
qualified immunity issue, we do not reach the admissibility
issue.
52
1 CONCLUSION
2 For the reasons explained above, the judgment is AFFIRMED
3 in part, and VACATED in part, and the case is REMANDED for
4 further proceedings consistent with this opinion.

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