Crespo v. Carvajal

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DAVID CRESPO, ANTHONY PODIAS, PEDRO ESPADA,

JR., ROLFI ESPINAL, KESNEL JUSTE, and ANTHONY

JOSEPH, on their own behalf, and on behalf of two classes of

similarly situated prisoners, ORDER ADOPTING

REPORT AND

Plaintiffs, RECOMMENDATION

17-cv-6329 (RRM) (PK)

- against -

HUGH HURWITZ, MICHAEL CARVAJAL, HERMAN

QUAY III, KIMBERLY ASK-CARLSON, GERARD

TRAVERS, WAYNE DECKER, and MARY LOU COMER,

Defendants.

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ROSLYNN R. MAUSKOPF, Chief United States District Judge.

Plaintiffs David Crespo, Anthony Podias, Pedro Espada, Jr., Rolfi Espinal, Kesnel Juste,

and Anthony Joseph, who were formerly inmates serving sentences of incarceration at the

Metropolitan Detention Center Brooklyn (“MDC Brooklyn”), bring this putative class action

against MDC Brooklyn employees – federal officials Kimberly Ask-Carlson, Michael Carvajal,

Wayne Decker, Herman Quay III, Gerard Travers, Hugh Hurwitz, and Mary Lou Comer –

alleging that their Eighth Amendment rights were infringed because of deficient medical care

and inhumane conditions of confinement. (See Am. Compl. (Doc. No. 34).) Defendants moved

to dismiss Plaintiffs’ claims, or in the alternative, for partial summary judgment. (Motion to

Dismiss (“Mot.”) (Doc. No. 47).) The Court referred Defendants’ motion to dismiss to

Magistrate Judge Peggy Kuo for a Report and Recommendation. (Order of May 21, 2018.) On

May 17, 2020, Magistrate Judge Kuo filed a Report and Recommendation recommending that

Defendants’ motion to dismiss be granted with respect to Count I but denied with respect to

Count II. (Report and Recommendation (“R&R”) (Doc. No. 57).)

Plaintiffs object to the R&R with respect to Count I, (Pls.’ Obj. (Doc. No. 63)), and

Defendants object to the R&R with respect to Count II, (Defs.’ Obj. (Doc. No. 64)). Having

reviewed the R&R and objections, the Court rejects those objections and adopts the R&R in its

entirety.

BACKGROUND

The Court assumes the parties’ familiarity with the facts and procedural history in this

case, as well as with Magistrate Judge Kuo’s R&R. Nonetheless, the Court recapitulates relevant

aspects of the case and the R&R for the convenience of the reader.

In their Amended Complaint, Plaintiffs allege that Defendants violated their Eighth

Amendment rights, as well as the rights of putative class members, by housing them in inhumane

conditions, restricting their access to fresh air and sunlight, failing to provide them with adequate

medical care, and providing them spoiled and contaminated food. (Am. Compl. ¶¶ 41–51, 52–

55, 36–38, 58–59.) Plaintiffs claim that Defendants were aware of these deficient conditions due

to the “inherent responsibility and authority” of Defendants’ positions; local and national news

reports on the conditions within MDC; oral complaints made by Cadre to defendants Ask-

Carlson, Quay, Travers, Decker, and Comer at “Main Line” meetings held to allow inmates to

ask questions and bring complaints; as well as a report by the National Association of Women

Judges concerning the conditions of confinement for women inmates at MDC. (Id. ¶¶ 31–34.)

In addition to these generally applicable allegations, Plaintiffs also raise allegations of

inhumane conditions of confinement and deficient medical care specific to each named plaintiff.

Crespo, who suffers from diabetes, was kept in solitary confinement in the Special Housing Unit

(“SHU”) for three days and denied his food and medications while held in the SHU; he fainted

and was taken to the hospital, where he was diagnosed with an unidentified infection. (Id. ¶¶

63–68.) Espada, who suffers from asthma, states that his condition has “noticeably worsened” as

a result of the “voluminous airborne particulate” and lack of fresh air. (Id. ¶¶ 70–75.) Podias

alleges that he received a “serious cut” to his hand from jagged metal while performing his duties

at MDC Brooklyn and, despite requests for medical assistance, remained untreated for more than

an hour until he fainted from blood loss. (Id. ¶ 80.) Juste alleges that he began regularly

bleeding from his anus in early 2016; his requests for medical assistance were ignored for

months, and only after he was transferred to the Federal Correctional Institution, Miami, was he

“almost immediately” diagnosed and treated for hemorrhoids. (Id. ¶ 86.) Joseph asserts that he

suffered a mini-stroke prior to his incarceration, and was denied necessary neurological care at

MDC. Despite unexplained dizziness and bleeding from his ears, his requests for treatment were

ignored for “several weeks,” until he fainted in both September 2016 and October 2016, after

which he was admitted to the hospital for ten days. (Id. ¶¶ 92–95.) Espinal alleges that he was

denied access to “foot powder” and a “basin” that had been prescribed to treat a “staphylococcus

aureus” infection in his toe; he was forced to work in a position that required him to wear safety

shoes, in contravention of medical advice, which caused him severe pain. (Id. ¶¶ 101–102.)

In Count I of the Amended Complaint, Plaintiffs sue defendants Carvajal, Quay, Ask-

Carlson, Travers, and Decker (“Individual Defendants”) in their individual capacities, seeking

monetary damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971).1 Count I is brought as a putative class action by all named plaintiffs and a

putative “Damages Class” comprised of “any male minimum-security sentenced inmates who

1 Plaintiffs only set forth one Bivens cause of action in their Amended Complaint, which purports to encapsulate all

of their alleged mistreatment in MDC Brooklyn. (See Am. Compl. ¶¶ 144–46.) However, like Magistrate Judge

Kuo, this Court will construe the Amended Complaint as asserting four Bivens claims, each premised on separate

factual allegations: deficient medical care; inhumane housing conditions; lack of fresh air and sunlight; and deficient

food services. (See R&R at 1 n.1.) This also comports with the parties’ arguments in support of and in opposition to

the Motion.

were incarcerated at any point between October 31, 2014, and October 31, 2017… at MDC

Brooklyn.” (Am. Compl. ¶¶ 23, 144.) Count II brings claims against defendants Hurwitz,

Carvajal, Quay, Travers, and Comer (“Official Defendants”) in their official capacities, seeking

injunctive relief compelling them to correct the deficient conditions alleged in the Amended

Complaint. (Id. ¶¶ 43–44; see also id. ¶¶ 144–49.) Count II is brought by plaintiff David Crespo

on behalf of himself and the “Injunctive Relief Class,” comprised of “any male minimum-

security sentenced inmates incarcerated at MDC Brooklyn currently or in the future.” (Id. ¶¶

144, 147.) Plaintiffs have not yet filed a motion to certify these classes.

I. Defendants’ Motion to Dismiss

Plaintiffs initiated the instant action on October 31, 2017, and filed an Amended

Complaint on July 6, 2018. Defendants now move to dismiss the Amended Complaint, or, in the

alternative, for partial summary judgment. (Memorandum in Support of Defendants’ Motion to

Dismiss, or, in the Alternative, for Partially Summary Judgment (“Mem.”) (Doc. No. 47-2).)

Defendants argue that Count II must be dismissed, as sovereign immunity bars suits against

federal prison officers in their official capacity, and the Eighth Amendment does not provide an

express waiver of sovereign immunity. (Mem. at 12–13.)2 Defendants argue that Plaintiffs’

Bivens claims for inhumane housing conditions, lack of fresh air and sunlight, and deficient food

services contained in Count I must be dismissed because they extend Bivens actions into a new

context, which is disfavored by the Supreme Court. (Id. at 15–17.) Further, defendants identify

special factors that counsel against extending Bivens into this new context, including the

existence of alternative remedies and the Prison Litigation Reform Act. (Id. at 17–19.)

Regarding Plaintiffs’ deficient medical care Bivens claim, Defendants argue that plaintiffs Juste

2 All page numbers refer to ECF pagination.

and Espinal should see their claims dismissed for failure to exhaust their administrative remedies

prior to bringing suit. (Id. at 20–22.) Alternatively, Defendants argue that Plaintiffs’ deficient

medical care Bivens claims are barred by qualified immunity and should be dismissed in their

entirety. (Id. at 20–30.) Defendants argue that Plaintiffs fail to show that their claims of

deficient medical care are objectively serious enough to rise to the level of Constitutional

violations and fail to plead sufficient facts showing Defendants’ personal involvement in the

alleged violations. (Id.)

II. Magistrate Judge Kuo’s R&R

In the R&R, Magistrate Judge Kuo recommends that Count II not be dismissed, because

sovereign immunity does not bar a claim under the Eighth Amendment for injunctive relief

against federal prison officers in their official capacity. (R&R at 38.) Additionally, Magistrate

Judge Kuo recommends dismissing Count I of Plaintiffs’ Amended Complaint because (i) the

non-medical Bivens claims are foreclosed under both prongs the two-prong test in Ziglar v.

Abbasi, 137 S. Ct. 1843 (2017), and (ii) the defense of qualified immunity jurisdictionally bars

the medical care Bivens claims. (R&R at 17, 19–20, 33–36.) In her Abbasi analysis, Magistrate

Judge Kuo finds that the non-medical Bivens claims are meaningfully distinct from those in

Carlson v. Green, 446 U.S. 14 (1980), because (1) the ranks of the involved officers may be

different; (2) the allegations are of generalized conditions and not particular to each defendant;

(3) and the degree of judicial guidance provided for living conditions is different from that

provided regarding medical care. (R& R at 17.) Further, Magistrate Judge Kuo finds that the

PLRA is a special factor that counsels against the extension of Bivens into this new context. (Id.

at 19.) In her qualified immunity analysis, Magistrate Judge Kuo finds that the allegations of

mistreatment by Podias and Juste failed to put forth sufficient facts demonstrating objectively

serious injury, and the allegations with respect to the remaining plaintiffs had failed to

demonstrate personal involvement on behalf of the defendants. (R&R at 33.)

III. Objections

Plaintiffs object to Magistrate Judge Kuo’s recommendation with respect to Count I.

They argue that Magistrate Judge Kuo “prematurely concludes that Plaintiffs’ medical care

claims should be dismissed based on Defendants’ invocation” of qualified immunity, arguing

that this amounts to a heightened pleading standard. (Pls.’ Obj. at 8.) Plaintiffs further object to

Magistrate Judge Kuo’s determination that Podias and Juste’s claims were not objectively

serious and that all plaintiffs had failed to demonstrate the personal involvement of any of the

Defendants. (Id.) Plaintiffs argue that the appropriate standard for the subjective requirement in

a qualified immunity analysis is deliberate indifference, which they maintain they have shown

here. (Id. at 14.)

Plaintiffs also object that Magistrate Judge Kuo “erroneously concludes that Plaintiffs fail

to state a claim for damages under Bivens in regard to their non-medical care claims,” because

the alleged deficiencies do not arise in a new Bivens context. (Id. at 8–9.) Alternatively,

Plaintiffs object to the Abbasi factors that Magistrate Judge Kuo identifies. (Id.) Plaintiffs

further assert that the distinction between the judicial guidance provided regarding the medical

care allegations brought in Carlson and the instant action is not “meaningful” because the

conditions of confinement can be aggregated into a constitutional violation where they are

mutually reinforcing such that the result is the deprivation of an identifiable human need. (Id. at

27.) Plaintiffs next object to Magistrate Judge Kuo’s finding that special factors counsel against

the extension of Bivens into this context; they argue that to foreclose a Bivens action here would

deny MDC’s inmates redress for violations of their Eighth Amendment rights. (Id. at 9.)

Finally, Plaintiffs request that this Court grant them leave to amend, should any part of Count I

be dismissed. (Id. at 24.)

Defendants object to Magistrate Judge Kuo’s recommendation with respect to Count II,

arguing that Crespo’s claim for injunctive relief is moot because he has already been released

from MDC custody. (Defs.’ Obj. at 11–12.) Further, Defendants object that Magistrate Judge

Kuo erred in finding that sovereign immunity did not bar Crespo’s claim for injunctive relief

based on violations of the Eighth Amendment. (Id. at 15.) Defendants maintain that the

existence of alternative statutory remedies precludes Crespo’s claim for injunctive relief here.

(Id. at 15–20.) Defendants also argue that the Eighth Amendment does not provide an express

waiver of sovereign immunity, and Crespo’s purported bases for subject-matter jurisdiction do

not confer jurisdiction. (Id. at 20–24.)

STANDARD OF REVIEW

When reviewing an R&R, a district court “may accept, reject, or modify, in whole or in

part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).

When a party raises an objection to an R&R, the district court “shall make a de novo

determination of those portions of the Report and Recommendation to which objection is made.”

28 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149–50 (1985); Pizarro v. Bartlett, 776

F. Supp. 815, 817 (S.D.N.Y. 1991). However, “new claims presented in the form of, or along

with, objections should be dismissed. Considering new claims would undermine the authority of

the Magistrate Judge by allowing litigants the option of waiting until a Report is issued to

advance additional arguments.” Green v. City of New York, No. 05-CV-429 (SLT) (ETB), 2010

WL 148128 at *4 (E.D.N.Y. Jan 14, 2010), aff’d, 403 F. App’x 626 (2d Cir. 2010) (internal

citations and quotation marks omitted).

Moreover, portions to which no party has objected are reviewed for clear error. See

Morritt v. Stryker Corp., 973 F. Supp. 2d 177, 181 (E.D.N.Y. 2013); Price v. City of New York,

797 F. Supp. 2d 219, 223 (E.D.N.Y. 2011). The Court will find clear error only where, upon a

review of the entire record, it is left with the definite and firm conviction that a mistake has been

committed. See Fed. R. Civ. P. 72(a); Regan v. Daimler Chrysler Corp., No. 07-CV-1112

(RRM) (JO), 2008 WL 2795470, at *1 (E.D.N.Y. July 18, 2008); Nielsen v. New York City Dep’t

of Educ., No. 04-CV-2182 (NGG) (LB), 2007 WL 1987792, at *1 (E.D.N.Y. July 5, 2007).

DISCUSSION

I. Applicable Law

“To survive a motion to dismiss [pursuant to Rule 12(b)(6)], a complaint must contain

sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id.

II. Count II

Concerning Crespo’s claims for injunctive relief on behalf of himself and the putative

class, defendants object to Magistrate Judge Kuo’s determination that sovereign immunity did

not bar Crespo’s claim for injunctive relief. This objection is without merit. First, Defendants

argue that the Eighth Amendment does not constitute a waiver of sovereign immunity. (Defs.’

Obj. at 13–14.) While sovereign immunity bars suits against federal officers in their official

capacities for money damages, it does not bar claims brought against federal officials in their

official capacities for injunctive relief. See Berkun v. Terrell, No. 12-CV-706 (JG), 2012 WL

3233897 at *3 (E.D.N.Y. Aug. 6, 2012); see also Armstrong v. Exceptional Child Ctr., 575 U.S.

320, 326–27 (2015) (describing longstanding precedent giving federal courts power to “grant

injunctive relief against state officers who are violating, or planning to violate, federal law…

[this is true] also with respect to violations of federal law by federal officials.”). Thus, whether

the Eighth Amendment contains a waiver of sovereign immunity for money damages has no

bearing on whether Crespo may bring his claim for injunctive relief.

Next, Defendants argue that Magistrate Judge Kuo incorrectly found a proper basis for

this Court’s jurisdiction. However, Crespo’s claims are based on a federal question, and thus this

Court may properly exercise jurisdiction under 28 U.S.C § 1331. (Am. Compl. ¶ 7.)

Additionally, Crespo sues under 28 U.S.C. § 1361, requesting that an officer of the United States

be compelled to perform a duty owed to the putative class, in this case not to violate their Eighth

Amendment rights, situating the matter squarely within this Court’s jurisdiction. (Id.) See

Kahane v. Carlson, 527 F. 2d 492, 496 (2d Cir. 1975) (maintaining jurisdiction under § 1361 in

an action alleging First Amendment violations in prison food services). Moreover, Magistrate

Judge Kuo did not, as Defendants claim, incorrectly conflate the inherent equitable powers of the

court with the basis for jurisdiction when she found that, just as in Simmat v. United States

Bureau of Prisons, a claim for injunctive relief brought against prison officials under the Eighth

Amendment may be properly within the federal courts under both 28 U.S.C. § 1331 and § 1361

and is not barred by sovereign immunity. 413 F. 3d 1225, 1240 (10th Cir. 2005).

Further, Defendants argue that Magistrate Judge Kuo erred in allowing Crespo’s claim

for injunctive relief to proceed where an alternate statutory remedy was available through a writ

of habeas corpus. (Defs.’ Obj. at 16–17.) This objection is unfounded. Defendants cite no

authority to support the contention that a court should decline to exercise jurisdiction over a

request for injunctive relief because the plaintiff had the option to petition for a writ of habeas

corpus.

Additionally, Defendants contend that Magistrate Judge Kuo erred in allowing the claims

to proceed because the claims were mooted when Crespo was discharged from MDC. (Defs.’

Obj. at 11.) This argument first appeared in a one-sentence footnote in Defendants’ initial

motion to dismiss, and therefore this Court is not required to consider it. See Tummino v.

Hamburg, 936 F. Supp. 2d 162, 193–94 (E.D.N.Y. 2013) (Finding that it is not the Court’s

“job… to ‘scour through footnotes in search of some possibly meritorious point that counsel did

not consider of sufficient importance to develop or include as part of the argument.’”) (quoting

United States v. Restrepo, 986 F. 2d 1462, 1463 (2d. Cir. 1993)). Nevertheless, this Court

concurs with Magistrate Judge Kuo’s determination that Crespo’s claim on behalf of the putative

class is not moot because it is “capable of repetition, yet evading review.” See Amador v.

Andrews, 655 F. 3d 89, 99 (2d Cir. 2011) (holding that the relation-back doctrine “applies to the

claims of the plaintiffs who have been released [from custody] and preserves their claims for

adjudication for purposes of a class action…”).

Finally, Defendants protest that the requested injunction is too broad, both because

Crespo seeks injunctive relief on behalf of a putative class and because the types of relief sought

would require Defendants to “implement changes to medical, sanitary, and living conditions”

such as requiring “officers to follow health care provider instructions,” requiring “adequate

maintenance and cleaning of units” and weekly inspections by an exterminator, and the

appointment of an independent monitor. (Defs.’ Obj. at 18, citing Am. Compl.) This argument

also must fail. As Magistrate Judge Kuo explained, in Simmat, the Tenth Circuit found that

sovereign immunity did not bar injunctive relief that would require defendants to provide dental

services, rejecting the defense’s argument that an injunction requiring such services would be

impermissible as an affirmative action by the sovereign. 413 F. 3d at 1233. The Simmat court

concluded that such an application of sovereign immunity “would leave prisoners without a

remedy for federal prison officials’ failure to carry out their constitutional duties, violating the

basic principle that ‘where federally protected rights have been invaded, it has been the rule from

the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief .

. . .’” Id. (citing Bell v. Hood, 327 U.S. 678, 684 (1946)); see also Farmer v. Brennan, 511 U.S.

825, 846 (1994) (stating that the courts could “grant appropriate relief” on a federal prisoner's

Eighth Amendment claim for damages and injunctive relief against prison officials in their

individual and official capacities). Therefore, sovereign immunity does not bar the requested

injunctive relief because it seeks broad remedies for alleged Constitutional violations.

III. Count I

a. Non-Medical Care Bivens Claims

In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court made clear that the

extension of an implied right of action to redress constitutional violations first articulated in

Bivens is “now a disfavored judicial activity.” (internal quotations and citations omitted.) As

such, the Supreme Court has cautioned against extension of Bivens into any new context;

because Congress is better positioned than the courts to decide when to impose new substantive

liability, the Supreme Court advises judicial restraint. Id. at 1857.

To determine whether a Bivens action arises in a new context, courts must consider

whether:

the case is different in a meaningful way from previous Bivens cases decided by

[the Supreme] Court… Without endeavoring to create an exhaustive list of

differences that are meaningful enough to make a given context a new one, some

examples might prove instructive. A case might differ in a meaningful way

because of the rank of the officers involved; the constitutional right at issue; the

generality or specificity of the official action; the extent of judicial guidance as to

how an officer should respond to the problem or emergency to be confronted; the

statutory or other legal mandate under which the officer was operating; the risk of

disruptive intrusion by the Judiciary into the functioning of other branches; or the

presence of potential special factors that previous Bivens cases did not consider.”

Ziglar v. Abbasi, 137 S. Ct. at 1859–60. “[A] Bivens remedy will not be available if there are

special factors counselling hesitation in the absence of affirmative action by Congress,” such as

the existence of an alternative remedial scheme, the manner in which the Congress has structured

its regulatory authority, the burden of a damages remedy on the Government and individual

employees, or any other unforeseeable factor that would counsel restraint. Id. (internal

quotations and citations omitted).

Concerning the Bivens claim of inhumane housing, lack of fresh air and sunlight, and

deficient food services, plaintiffs contend Magistrate Judge Kuo erred by concluding that these

claims were an extension of Bivens into a new context. Plaintiffs argue that the three

“meaningful” differences that Magistrate Judge Kuo identified in her application of Abbasi –that

the claims are generalized as opposed to particularized, that the officers differ in rank, and that

courts provide different degrees of judicial guidance regarding conditions of confinement and

medical treatment – are not supported by a fair reading of the complaint and so cannot justify

dismissal of the non-medical claims. (Pls.’ Obj. at 27.)

First, Plaintiffs dispute that alleged general health conditions of inmates’ confinement is

meaningfully distinct from the inadequate medical care presented in Carlson v. Green, 446 U.S.

14 (1980). The Court concurs with Magistrate Judge Kuo’s reasoning that generalized

conditions of confinement are non-trivially different from the failure to provide medical

treatment to a particular inmate. (R&R at 16–17.) The fetid, unclean and cramped conditions of

confinement Plaintiffs allege are more closely related to the claims brought in Abbasi, where

plaintiffs were held in small cells for 23 hours a day and denied access to exercise, recreation,

and personal hygiene items; the Court found that these conditions of confinement claims were, in

fact, an extension of Bivens into a new context. See Abbasi, 137 S. Ct. 1843. Though the claims

arise from the Eighth Amendment, the same right at issue in Carlson, that similarity alone is

insufficient to support a non-medical care claim under Bivens. See Gonzalez v. Hasty, 269 F.

Supp. 3d. 45, 64 (E.D.N.Y 2017), aff’d Gonzalez v. Hasty, 755 F. App’x 67 (2d Cir. 2018)

(holding that plaintiff’s “non-medical [Eighth Amendment] claims present facts that are very

different from Carlson, such that it is a ‘new context’”).

Plaintiffs counter that the alleged conditions of confinement may be aggregated into a

Carlson violation “when they have a mutually enforcing effect that produces the deprivation of a

single, identifiable human need such as food, warmth, or exercise.” Walker v. Schult, 717 F.3d

119, 125 (2d Cir. 2013). This Court concurs with Magistrate Judge Kuo’s determination that

Plaintiffs have not alleged with specificity that the aggregated conditions identified by Plaintiffs

deprive Plaintiffs of a single, “identifiable human need” such as the persistent sleep deprivation

in Walker. (R&R at 19–20.) Further, the instant case is distinguishable from Farmer v.

Brennan, 511 U.S. 825 (1994), which Plaintiffs cite as evidence that conditions of confinement

can constitute Eighth Amendment violations sufficient to support a Bivens action. (Pls.’ Mem. at

28.) In Farmer, the conditions of confinement were particularized; the identified plaintiff, who

was a transgender woman housed in a men’s prison and whose gender expression placed her at

risk for sexual violence, brought a Bivens action alleging failure to protect her from violence

inflicted by other inmates. 511 U.S. at 830–831. Plaintiffs describe no such particularized

threat.

Next, Plaintiffs argue that Magistrate Judge Kuo unnecessarily speculated about a

possible difference in rank between officials who control inmate medical care and those who

control inmate housing and food, a difference they argue would not be “meaningful” even if it

existed. (Pls.’ Obj. at 26.) Under Abbasi, a case may differ “in a meaningful way because of the

rank of the officers involved.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1860 (2017). This Court

agrees that the officer ranks are not clear from the record. However, this is one of three

meaningful distinctions enumerated in the R&R; Plaintiffs’ non-medical claims extend Bivens

into a new context under Abbasi whether or not there is a difference in rank between officials

who control medical care and those who control the general conditions of housing or food.

Further, Plaintiffs contest Magistrate Judge Kuo’s determination that, under Abbasi,

special factors counsel hesitation in extending a Bivens remedy. First, Plaintiffs argue that the

alternative remedies of habeas relief, injunctive relief, and administrative complaints are

insufficient because they do not provide “roughly similar incentives” for compliance with the

Eighth Amendment “while also providing roughly similar compensation to victims of

violations.” (Pls.’ Obj. at 28 (quoting Minneci v. Pollard, 565 U.S. 118, 130 (2012)).)

Magistrate Judge Kuo determined, and this Court agrees, that even if Plaintiffs were correct, the

PLRA is an additional special factor that counsels against recognizing a Bivens claim here.

(R&R at 19.) Plaintiffs argue that the PLRA should not be considered a special factor since

several of the named plaintiffs were no longer incarcerated, and therefore could not avail

themselves of PLRA remedies. (Pls.’ Obj. at 30.) That argument is not determinative where, as

here, Plaintiffs controlled the timing of their suit.

Plaintiffs assert that the passage of the PLRA should not be interpreted to foreclose

Bivens actions. (Id.) Though Plaintiffs are correct that Congressional silence is subject to a wide

array of interpretations, the “threshold for concluding that a factor counsels hesitation ‘is

remarkably low…’” Turkmen v. Ashcroft, No. 02-CV-2307 (DLI) (SMG) 2018 WL 4026734 at

*9 (E.D.N.Y. Aug. 13, 2018) (quoting Arar v. Ashcroft, 585 F.3d 559, 574 (2d Cir. 2009). The

Supreme Court’s guidance in Abbasi directs courts to consider in the special factor analysis

whether Congress structured its regulatory authority in such a manner that it makes “it less likely

that Congress would want the Judiciary to interfere.” Abbasi, 137 S. Ct. at 1858. The PLRA

suggests such a motivation, and that suggestion is enough to counsel hesitation. Accordingly,

this Court concurs with Magistrate Judge Kuo’s determination that the PLRA is a special factor

counseling against extending Bivens into this new context.

b. Medical Care Bivens Claims

In her R&R, Magistrate Judge Kuo determined that the denial of medical care Bivens

claims did not extend Bivens into a new context but found that the claims should be dismissed on

the basis of qualified immunity. Plaintiffs contend Magistrate Judge Kuo was wrong to address

the question of qualified immunity at the motion to dismiss stage. Plaintiffs cite Chamberlain v.

City of White Plains, a case decided subsequent to the filing of the R&R, to show that it is rarely

appropriate to consider a qualified immunity defense on a Rule 12(b)(6) motion. 960 F.3d 100

(2d Cir. 2020). The Chamberlain court stated, “a qualified immunity defense presented on a

Rule 12(b)(6) motion ‘faces a formidable hurdle . . . and is usually not successful.’” Id at 111–

12 (citing Field Day, LLC v. County of Suffolk, 463 F.3d 167, 191–92 (2d Cir. 2006) (internal

quotation marks omitted)). The Chamberlain court explained,

A defendant presenting an immunity defense on a Rule 12(b)(6) motion instead of

a motion for summary judgment must accept the more stringent standard

applicable to this procedural route. Not only must the facts supporting the defense

appear on the face of the complaint, but, as with all Rule 12(b)(6) motions, the

motion may be granted only where it appears [that the alleged facts, if true,

plausibly state a claim] that would entitle him to relief. Thus, the plaintiff is

entitled to all reasonable inferences from the facts alleged, not only those that

support his claim, but also those that defeat the immunity defense.

960 F.3d at 110 (2d Cir. 2020) (quoting McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004)

(citations, internal quotation marks, and alterations omitted)). However, the Court need not

reach a decision on the application of qualified immunity here because Plaintiffs have failed to

state a claim under Bivens.

Magistrate Judge Kuo separately found, and this Court agrees, that Plaintiffs failed to

state a claim under Bivens because Plaintiffs failed to demonstrate personal involvement of the

Individual Defendants. (See R&R at 25–26, 28, 29, 31, 33.) “Because vicarious liability is

inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official

defendant, through the official's own individual actions, has violated the Constitution.” Ashcroft

v. Iqbal, 556 U.S. 662, 676, 129 S. Ct. 1937, 1948 (2009). Plaintiffs allege that the Individual

Defendants were generally aware of the conditions of confinement at MDC due to media reports

and their positions of authority, and, through their supervisory powers, these defendants “created,

authorized, condoned, ratified, approved or knowingly acquiesced in the illegal, unconstitutional,

and inhumane conditions” at the facility. (See Compl. ¶¶ 16–22.) This conclusory statement is

tantamount to an assertion of supervisory liability for Plaintiffs’ allegedly deficient medical care

and is therefore insufficient.

Plaintiffs further allege that defendants Ask-Carlson, Quay, Travers, Decker, and Comer

attended “Main Line” meetings where Cadre raised complaints of deficient conditions of

confinement, including deficient medical care, thus purporting to show personal involvement.

However, generalized awareness of a plaintiff’s dissatisfaction with conditions of confinement is

not sufficient to establish personal involvement for particular wrong. See, e.g., Wright v. Smith,

21 F.3d 496, 501 (2d Cir. 1994) (finding no personal involvement on behalf of the Commissioner

of the New York Department of Correctional Services where plaintiff mailed him a letter

complaining generally about his conditions of confinement but did not mention the Due Process

violation alleged in his § 1983 action.) Plaintiffs state only that “[t]hroughout the Class Period,

Cadre would raise issues at Main Line concerning Cadre living conditions, deficient food and

inadequate medical care, as detailed below in paragraphs 35-103.” (Am. Compl. ¶ 32.) Even if

Plaintiffs had plausibly alleged that they had raised the specific incidents of deficient medical

care that form the basis of their Bivens claims during Main Line meetings, the Amended

Complaint contains no allegation that the Individual Defendants responded to these complaints

with deliberate indifference. Construing the Amended Complaint is the light most favorable to

Plaintiffs, the assertion that the Individual Defendants are personally involved due to defendants

Ask-Carlson, Quay, Travers, Decker, and Comer participating in Main Line meetings is not

sufficient to survive a motion to dismiss.

Finally, the Amended Complaint alleges that Crespo filed grievances the year following

his alleged deficient medical care, but that Quay, Carvajal and Kane affirmed the rejection of his

grievances because it was unclear and because they wrongly stated that Crespo had failed to first

pursue informal resolution of his claim. (Id. ¶¶ 103–07.) That Quay, Carvajal and Kane

summarily rejected Crespo’s grievance is also inadequate to demonstrate the personal

involvement of any of the Individual Defendants in his alleged deprivation of medical care. See

Mateo v. Fischer, 682 F. Supp. 2d 423, 430–31 (S.D.N.Y. 2010) (the summary denial of a

prisoner’s complaint is insufficient to establish personal involvement) (collecting cases).

Accordingly, Plaintiffs have not alleged personal involvement of any of the Individual

Defendants and have therefore failed to state a claim under Bivens for deficient medical care.

c. Leave to Re-plead

Plaintiffs seek leave to re-plead to correct the deficiencies in their Bivens claims.

However, “[w]here it appears that granting leave to amend is unlikely to be productive… it is not

an abuse of discretion to deny leave to amend.” Lucente v. International Business Machines

Corp., 310 F. 3d 243, 258 (2d Cir. 2002) (citations omitted). Plaintiffs were given leave to file

an amended complaint to cure several deficiencies in their initial filing, including a failure to

allege personal involvement. (See Motion for pre-motion conference to address proposed

Amended Complaint (Doc. No. 27) at 1 (“the proposed Amended Complaint makes even more

clear that certain [d]efendants who are being sued under Bivens were personally involved in the

alleged constitutional violations that form the basis of the relief sought by the damages class.”).)

This Court denies leave to amend to cure these same deficiencies, as amendment would be futile.

The Court has reviewed the remainder of Magistrate Judge Kuo’s recommendations to

which the parties did not object for clear error. The Court affirms and adopts the thorough and

well-reasoned Report and Recommendation as the opinion of the Court.

CONCLUSION

For the reasons set forth herein, the Report and Recommendation of Magistrate Judge

Kuo is adopted in its entirety. Defendants’ motion to dismiss as to Count I is granted with

prejudice, and denied as to Count II. The matter is respectfully referred to Magistrate Judge Kuo

for all further pre-trial proceedings.

SO ORDERED.

Dated: Brooklyn, New York Roslynn R. Mauskopf

November 26, 2020

______________________________

ROSLYNN R. MAUSKOPF

Chief United States District Judge