Quinones v. City Of New York

USDC SDNY

DOCUMENT

i eerEiNtE

UNITED STATES DISTRICT COURT a re □□□

SOUTHERN DISTRICT OF NEW YORK DATE FILED: □□□□□□□

Jose M. Quinones,

Plaintiff,

18-cv-1170 (AJN)

—y—

OPINION & ORDER

Captain Adam Rollison, Shield No. 192, Correction Officer

Eric Wilson, Shield No. 11616, Correction Officer Kenny

Rochez, Shield No. 5196, Correction Officer Sammy

Fernandez, Shield No. 5335, and Captain Carlos

Blackwood,

Defendants.

ALISON J. NATHAN, District Judge:

In 2016, Plaintiff Jose Quinones was detained at the George R. Vierno Center on Rikers

Island. On his first day at that facility, another inmate violently attacked him, and a corrections

officer subsequently used pepper spray to break up the altercation. Plaintiff now claims that

Defendants, a number of Department of Corrections staff, used excessive force against him in

breaking up the fight and were deliberately indifferent to his safety. Defendants have moved for

summary judgment on both claims. For the reasons that follow, Defendants’ motion is

GRANTED.

I. BACKGROUND

A. The Facts

The following facts are undisputed: In November 2016, the New York Police Department

arrested Plaintiff Jose Quinones. Dkt. No. 104 §] 3; see also Dkt. No. 93 Ex. D. For about two

weeks, Plaintiff was incarcerated at the Manhattan Detention Center, and he and two other

inmates were subsequently transferred to the George R. Vierno Center (GRVC) on Rikers Island.

Dkt. No. 104 ¶ 5. When he arrived at GRVC, Plaintiff asked a corrections offer which unit he

was being placed in and which gang was in control of the unit. Id. ¶¶ 6–7. Plaintiff was

informed that he was being placed in Unit 8A, and “that the Macballas controlled the unit.” Id.

¶ 8. The parties agree that Plaintiff did not belong to the Macballas gang, but was instead

affiliated with another gang. Id. ¶ 9. Plaintiff testified that he was a member of the Bloodhound

Brims, which is affiliated with the Bloods. See Quinones Dep., Dkt. No. 93 Ex. C., at 40:9–13,

45:21–46:1. The two other inmates that came with Plaintiff from MDC were affiliated with

other gangs. Quinones Dep. 29:6–11 (noting that these individuals were members of the Ape

and Gorilla gangs); see also Dkt. No. 104 ¶ 12.1 Plaintiff and the other inmates “notified the

officer that their gangs had problems with the Macballas and that plaintiff expected he would be

attacked.” Dkt. No. 104 ¶ 13. Nonetheless, Plaintiff and the other two individuals were all

placed in Unit 8A. Id. ¶ 15. Plaintiff did not inform other Department of Corrections staff

members that he was concerned for his safety. Id.

The next morning, Plaintiff was let out of his cell and spoke with a man named Mike,

who he knew from his time living in Harlem. Id. ¶ 19. Mike informed Plaintiff that Unit 8A

housed members of the Macballas and Patria gangs, and that there were “two other Blood gang

members also inside the housing unit.” Id. ¶¶ 20–21. Plaintiff then spoke with these “other

Blood gang members” and learned that “the Bloods shared one of the Macballas’ phones and

were allowed to use it at certain times of the day.” Id. ¶ 22. Later that day, after confirming with

other Blood members that he could use the phone, Plaintiff made a phone call. Id. ¶ 24. On that

1 Plaintiff admits this fact “to the limited extent that Plaintiff believed the two other inmates to be members of the

Gorilla gang.” Dkt. No. 104 ¶ 12. However, this proposition is conclusory, not supported by any citations to the

record, and indeed contradicted by the record. The same is true for other facts contained in Plaintiff’s Response to

Defendants’ 56.1 Statement and Plaintiff’s Rule 56.1 statement. Plaintiff has therefore failed to raise a genuine

dispute as to certain facts. See Scott v. Harris, 550 U.S. 372, 380 (2007); Local Civil Rule 56.1(c)–(d).

call, he informed the individual with whom he was speaking that “he rejected an offer” from

Department of Corrections officers “to go into protective custody . . . because he was trying to

look cool.” Id. ¶ 25.

While on the phone, at about 9 AM, Plaintiff was “slashed by another inmate.” Id. ¶ 26.

Specifically, “an inmate sliced Mr. Quinones in the cheek and neck, leaving a five-inch gash.”

Dkt. No. 105 ¶ 14. The parties disagree about the exact details of what happened next, but here’s

the (undisputed) gist: Officer Sammy Fernandez, a defendant in this action, was working in Unit

8A at the time. Dkt. No. 104 ¶ 28. Officer Fernandez described his job as “basically walk[ing]

around and monitor[ing] the housing area.” Fernandez Dep., Dkt. No. 93-8, at 25:2–47. Unit 8A

contains two levels of cells, and Officer Fernandez was on the higher level at the time. Id.

25:11–13, 29:17–30:3 (“I was on the top tier of the housing area . . . I was letting inmates out of

their cells.”). After Plaintiff was attacked, Officer Fernandez ran to the stairwell, came

downstairs, and “pushed his Personal Body Alarm immediately after he saw blood on the

plaintiff.” Dkt. No. 104 ¶ 30.

Plaintiff admits that after he “was cut he turned in an aggressive manner towards his

assailant.” Id. ¶ 31. The assailant and the Plaintiff continued to fight—though the parties

dispute who “threw the first punch.” See id. ¶ 32. Officer Fernandez “ordered the plaintiff and

other inmate to stop,” and Plaintiff admits that Officer Fernandez said “stop” while looking at

him. Dkt. No. 104 ¶ 34. Officer Fernandez further informed both inmates “that he would utilize

his chemical agent if they continued to fight.” Id. ¶ 35. Plaintiff subsequently threw a garbage

can in the direction of the inmate who had cut him and others who had gathered on the scene. Id.

¶ 36. Officer Fernandez then used a “two-second burst of chemical agent,” and both Plaintiff

and his assailant were sprayed. Id. ¶ 37; see also Fernandez Dep. 55:1-16. After Officer

Fernandez sprayed the chemical agent, “the fight stopped and the inmates dispersed throughout

the housing area.” Id. ¶ 39. A “probe team” then arrived and escorted both inmates out of the

housing unit. Id. ¶ 40; see also id. ¶ 43 (“Approximately five minutes after the incident the

plaintiff was escorted out of the unit.”). Defendants have also provided undisputed video footage

of this entire incident. Def. Ex. G.

Plaintiff was soon seen in the GRVC clinic by a doctor, and was then “referred to Urgi-

Care where his laceration wound was treated with Dermabond/Sterile strips.” Id. ¶¶ 41–42. A

subsequent Department of Corrections investigation determined “that the plaintiff had been

slashed by an inmate who belonged to the Trinitarian gang,” not the Macballas. Id. ¶ 46.2

B. Procedural History

In February 2018, Plaintiff filed this action under 42 U.S.C. § 1983. More than a year

later, he filed a fourth amended complaint, which is the operative pleading in this matter. Dkt.

No. 88. He named as defendants several Department of Corrections staff, such as Officer

Fernandez and the officers who conducted his intake into GRVC. Id. ¶¶ 5–8.3 Plaintiff alleged

that Defendant Fernandez had violated his constitutional rights by using excessive force. And

Plaintiff alleged that the other Department of Corrections Staff, whom the parties refer to as the

“Intake Defendants,” violated the Fourteenth Amendment’s Due Process Clause by placing him

into Unit 8A even though he expressed that he was not a Macballas member, thereby acting with

deliberate indifference to his safety. See id.

2 Plaintiff contends that Defendants’ Exhibit K, a New York City Department of Corrections incident report, is

inadmissible because it constitutes hearsay. However, this incident report satisfies all requirements for the business-

record exception to hearsay, and the Court can thus consider it on summary judgment. See Federal Rule of Evidence

803(6); United States v. Kaiser, 609 F.3d 556, 574–75 (2d Cir. 2010).

3 Plaintiff also named as Defendant Correction Officer Jane or John Doe, Dkt. No. 88 ¶ 5, but he subsequently

consented to “dismissal of the John or Jane Doe defendants,” Dkt. No. 99 ¶ 2.

After lengthy discovery, Defendants have moved for summary judgment on all counts.

That motion is now before the Court.

II. LEGAL STANDARD

Summary judgment is appropriate only where “there is no genuine issue as to any

material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(c). A dispute is “genuine” if “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The relevant inquiry on summary judgment is “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party must

prevail as a matter of law.” Id. at 251–52. A court is not charged with weighing the evidence

and determining its truth, but with determining whether there is a genuine issue for trial.

Westinghouse Elec. Corp. v. N.Y. City Transit Auth., 735 F. Supp. 1205, 1212 (S.D.N.Y. 1990)

(quoting Anderson, 477 U.S. at 249). Moreover, if the evidence for the nonmoving party is a

mere scintilla or “not significantly probative,” the court may grant summary judgment.

Anderson, 477 U.S. at 249–50. A fact is “material” only if it will affect the outcome of the suit

under applicable law, and such facts “properly preclude the entry of summary judgment.” Id. at

248. Disputes over irrelevant facts will not preclude summary judgment. Id. The goal is to

“isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317,

323–24 (1986).

While the moving party bears the initial burden of showing that no genuine issue of

material fact exists, Atl. Mut. Ins. Co. v. CSX Lines, L.L.C., 432 F.3d 428, 433 (2d Cir. 2005), in

cases where the non-moving party bears the burden of persuasion at trial, “the burden on the

moving party may be discharged by ‘showing’—that is, pointing out to the district court—that

there is an absence of evidence to support the nonmoving party’s case,” Celotex, 477 U.S. at 325.

“It is ordinarily sufficient for the movant to point to a lack of evidence . . . on an essential

element of the non-movant's claim . . . . [T]he nonmoving party must [then] come forward with

admissible evidence sufficient to raise a genuine issue of fact for trial . . . .” Jaramillo v.

Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008) (internal citations omitted); see also

Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (“Once the

moving party has made a properly supported showing sufficient to suggest the absence of any

genuine issue as to a material fact, the nonmoving party . . . must come forward with evidence

that would be sufficient to support a jury verdict in his favor.”).

III. DEFENDANTS’ MOTION IS GRANTED

A. Plaintiff’s Excessive-Force Claim against Officer Fernandez Fails

The Court begins with Plaintiff’s claim that Fernandez’s use of pepper spray constituted

constitutionally excessive force, in violation of the Fourteenth Amendment. Section 1983

imposes liability on individuals who, while acting under color of state law, deprive a plaintiff of

a federal right. See Gomez v. Toledo, 446 U.S. 635, 640 (1980). “A pretrial detainee who is

subjected to excessive force may bring a claim under § 1983.” Cunningham v. Rodriguez, No.

01-cv-1123 (DC), 2002 WL 31654960, at *4 (S.D.N.Y. Nov. 22, 2002). Because the Eighth

Amendment’s protection from cruel and unusual punishment does not apply “‘until after

conviction and sentence,’ the right of pretrial detainees to be free from excessive force

amounting to punishment is protected by the Due Process Clause of the Fourteenth

Amendment.” United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999) (quoting Graham v.

Connor, 490 U.S. 386, 392 n.6 (1989)). “The Second Circuit applies the same standard to

excessive force claims brought under the Fourteenth Amendment as under the Eighth

Amendment.” Virella v. Pozzi, No. 05-cv-10460 (RWS), 2006 WL 2707394, at *3 (S.D.N.Y.

Sept. 20, 2006).

To establish a violation of the “right of pretrial detainees to be free from excessive force

amounting to punishment,” a pretrial detainee must show that the force used against him was

“objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389 (2015). This inquiry is

“context specific, turning upon ‘contemporary standards of decency.’” Blyden v. Mancusi, 186

F.3d 252, 263 (2d Cir. 1999) (quoting Hudson v. McMillan, 503 U.S. 1, 8 (1992)).

“Considerations such as the following may bear on the reasonableness or unreasonableness of

the force used: the relationship between the need for the use of force and the amount of force

used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the

amount of force; the severity of the security problem at issue; the threat reasonably perceived by

the officer; and whether the plaintiff was actively resisting.” Kingsley, 576 U.S. at 397.

The Second Circuit has long made clear that “[n]ot every push or shove, even if it may

later seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional

rights.” Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (quoting Johnson v. Glick, 481

F.2d 1028, 1033 (2d Cir. 1973)). In other words, “plaintiff must show that the harm incurred

was more than de minimis.” Berry v. City of New York Dep’t of Corr., No. 12-cv-7819 (RWS),

2014 WL 2158518, at *5 (S.D.N.Y. May 22, 2014), aff'd sub nom. Berry v. New York City Dep’t

of Correction, 622 F. App’x 10 (2d Cir. 2015). The use of pepper spray “constitutes a significant

degree of force” and can in certain cases form the basis of a constitutional violation. Tracy v.

Freshwater, 623 F.3d 90, 98 (2d Cir. 2010) (“Unquestionably, infliction of pepper spray on an

arrestee has a variety of incapacitating and painful effects . . . .”); see Berry, 2014 WL 2158518,

at *5. However, if the force was “applied in a good-faith effort to maintain or restore discipline,

it is unlikely to be repugnant to the conscience of mankind, and will not amount to excessive

force under Second Circuit law.” Adilovic v. Cnty. of Westchester, No. 08-cv-10971 (PGG),

2011 WL 2893101, at *6 n. 12 (S.D.N.Y. July 14, 2011) (internal citation omitted) (quoting Sims

v. Artuz, 230 F.3d 14, 21 (2d Cir. 2000)); accord Berry, 2014 WL 2158518, at *5.

The Court concludes that, on the undisputed facts, no reasonable jury could conclude that

Officer Fernandez’s use of force was objectively unreasonable. See Kingsley, 576 U.S. at 397.

To begin, the amount of force used was small. It is undisputed that Officer Fernandez used only

a two-second burst of pepper spray against Mr. Quinones. Dkt. No. 104 ¶ 37. He used a similar,

seconds-long spray to subdue the assailant, and the parties agree that the “plaintiff and his

assailant were both sprayed one time [each] by Officer Fernandez.” Id. ¶ 38 (emphasis added);

see also Def. Ex. G (surveillance video demonstrating that pepper spray was used only for

seconds). This case is thus a far cry from United States v. Praisner, in which the pretrial

detainee alleged that he had been “sprayed six times on four separate occasions over

approximately 40 minutes, and was not decontaminated during that period.” No. 09-cr-264

(MRK), 2010 WL 2574103 (D. Conn. Apr. 27, 2010).

Moreover, even reading the record most favorably to Plaintiff, Officer Fernandez’s use of

force was proportional to the need for force. Plaintiff does not dispute, and the surveillance

video of the incident clearly demonstrates, that Officer Fernandez employed the two-second

burst of pepper spray against two inmates who were in the midst of a violent fight involving a

dangerous weapon, had been warned to stop their conduct, had nonetheless continued fighting,

and had been specifically warned that failure to do so would result in the use of pepper spray.

Dkt. No. ¶¶ 34–35.; Def. Ex. G. Plaintiff’s conduct posed a risk to other inmates, himself,

Officer Fernandez, and other prison staff. The parties agree that this limited force was sufficient

to achieve the desired end: “After the chemical agent was utilized the fight stopped and the

inmates dispersed throughout the housing area.” Dkt. No. 104 ¶ 39; see also Ex. G. And Officer

Fernandez’s repeated warnings speak to his efforts “to temper or to limit the amount of force . . .

and whether the plaintiff was actively resisting.” Kingsley, 576 U.S. at 397; accord Beauvoir v.

Falco, 345 F. Supp. 3d 350, 369 (holding that this factor favored summary judgment because

“Defendants tried multiple times to convince Plaintiff to follow their orders . . . before resorting

to use of force”). Indeed, despite Fernandez’s warnings, Dkt. No. 104 ¶¶ 34–35, Plaintiff

continued his involvement in the fight and threw a garbage can at his assailant and other inmates.

Id. ¶ 36. Though Plaintiff contends that the garbage can was thrown in self-defense, and thus the

Court should disregard this fact, Plaintiff’s subjective state of mind is irrelevant—the Court must

determine if Fernandez’s actions, in response to these circumstances, was objectively reasonable.

See Kingsley, 576 U.S. at 396–97.

Plaintiff contends that he has established a genuine dispute on his excessive-force claim

because the pepper spray entered his fresh wound. However, as the Supreme Court has

repeatedly admonished, a “court must make [the objective-reasonableness] determination from

the perspective of a reasonable officer on the scene, including what the officer knew at the time,

not with the 20/20 vision of hindsight.” Kingsley, 576 U.S. at 397. It is undisputed that Officer

Fernandez had just come onto the first floor of Unit 8A and was the only officer on the scene,

and had seconds to assess the situation before acting. See Ex. G; Dkt. No. 104 ¶¶ 28–29. Given

the violent fight occurring before him between two inmates, using the two-second burst of

pepper spray was not objectively unreasonable. This is true even though Plaintiff had suffered a

serious, though not-life threatening, injury, and the pepper spray irritated his wound until he

shortly thereafter received medical treatment. Dkt. No. 104 ¶ 41. Indeed, Officer Fernandez had

seconds to observe that injury, and he still used only proportionate force to “ensure compliance

of an uncooperative . . . inmate,” Adilovic, 2011 WL 2893101, at *6. Crucially, unlike in Tracy,

there is no evidence that Officer Fernandez “applied pepper spray after [the plaintiff] had already

been handcuffed and was offering no physical resistance of police commands.” 623 F.3d at 98–

99. To the contrary, Officer Fernandez quickly desisted from using pepper spray after his initial

burst ended the confrontation. See Dkt. No. 104 ¶ 37 (Plaintiff concedes that Fernandez used a

“two-second burst”); id. ¶ 39; Ex. G. And within one hour of the incident, Plaintiff was seen and

treated by medical staff. Id. ¶ 41.

In sum, Officer Fernandez is entitled to summary judgment because Plaintiff has not

established a material issue of fact as to the objective element of his excessive-force claim.

Accord Beauvoir, 345 F. Supp. 3d at 369 (granting defendants summary judgment in a § 1983

case because the “use of the pepper spray . . . was permissible in the context of needing to

maintain a baseline of order in the prison system,” even though plaintiff “was not behaving

belligerently or threateningly,” in part because “Plaintiff repeatedly resisted multiple officers’

orders”); Berry, 2014 WL 2158518, at **5–6 (finding evidence that defendant officer used

pepper spray to break up a violent fight between inmates insufficient to raise a genuine dispute

about excessive force, and thus granting defendants summary judgment); see also Perry v.

Stephens, 659 F. Supp. 2d 577, 582–83 (S.D.N.Y. 2009).

B. Officer Fernandez is Also Entitled to Qualified Immunity

Plaintiff’s excessive-force claim also fails because Officer Fernandez is entitled to

qualified immunity. In other words, even if a reasonable jury could find that Fernandez violated

the Fourteenth Amendment by using excessive force, he would still be entitled to summary

judgment because he did not violate a clearly established constitutional right.

An officer may take advantage of qualified immunity, and thereby avoid liability for civil

damages and the burdens of a lawsuit, if he demonstrates that his conduct “does not violate

clearly established statutory or constitutional rights of which a reasonable person would have

known.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (internal quotation marks

omitted). “‘Clearly established’ means that, at the time of the officer’s conduct, the law was

sufficiently clear that every reasonable official would understand that what he is doing is

unlawful.” Dist. of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quotation omitted).

“[E]xisting law must have placed the constitutionality of the officer’s conduct beyond

debate.” Id. (quotation omitted). “This demanding standard protects all but the plainly

incompetent or those who knowingly violate the law.” Id. (quotation omitted). Moreover, the

Supreme Court has “repeatedly stressed that courts must not define clearly established law at a

high level of generality, since doing so avoids the crucial question whether the official acted

reasonably in the particular circumstances that he or she faced.” Id. at 590 (quotation omitted).

In other words, “the clearly established right must be defined with specificity.” City of

Escondido, Cal. v. Emmons, 149 S. Ct. 500, 501 (2019) (finding that defining the clearly

established as “the right to be free of excessive force” was too general). It is a “constitutional

right[] of which a reasonable person would have known” and “reasonableness is judged against

the backdrop of the law at the time of the conduct.” Kisela v. Hughes, 138 S.Ct. 1148, 1152

(2018) (per curiam) (internal citations and quotations omitted). Summary judgment should be

granted on the basis of qualified immunity only if “no reasonable jury, looking at the evidence in

the light most favorable to, and drawing all inferences most favorable to, the plaintiff, could

conclude that it was objectively reasonable for the defendant to believe that he was acting in a

fashion that did not clearly violate an established federally protected right.” Lennon v. Miller, 66

F.3d 416, 420 (2d Cir. 1995) (quoting Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987)).

Plaintiff contends that “no reasonable officer in the Second Circuit could have believed

that he was entitled to use pepper spray on the fresh, open facial cut of the victim of an ongoing

attack by another inmate.” Dkt. No. 100 at 7. This conclusory statement, however, is not

enough to defeat summary judgment on this ground, as Plaintiff points to no Supreme Court or

Second Circuit authority to this effect. Moreover, Plaintiff omits from this statement myriad,

undisputed facts in the record. As noted, even reading the record most favorably to

Mr. Quinones, Officer Fernandez was the sole DOC staff member that responded to an inmate-

on-inmate altercation involving a dangerous weapon, observed Plaintiff and his assailant

engaging in a fight, told Plaintiff to “stop” (which Plaintiff concedes he heard), told Plaintiff that

failure to do so would result in the use of chemical agent against him, and observed Plaintiff

move in an aggressive manner and throw a garbage can. Dkt. No. 104 ¶¶ 30–38. Only then did

Fernandez spray a two-second burst of pepper spray to stop the conduct. Plaintiff has pointed to

no authority—let alone binding authority—and the Court has found none suggesting that this

proportionate use of non-deadly force to regain control of a violent situation in a prison

constitutes unconstitutionally excessive force. See Wesby, 138 S. Ct. at 589.

To the contrary, the Second Circuit has stated that “the use of entirely gratuitous force is

unreasonable and therefore excessive . . . no reasonable officer could have believed that he was

entitled to use pepper spray gratuitously against a restrained and unresisting arrestee.” Tracy,

623 F.3d at 99 n.5. Yet here, the undisputed facts establish that Officer Fernandez’s use of force

was not gratuitous, Plaintiff was not restrained, and Plaintiff continued his violent conduct after

twice being warned to desist. Similarly, in Rodriguez v. City of New York, the plaintiff’s

complaint survived a Rule 12 motion because plaintiff alleged that the corrections officers

sprayed pepper spray in an indiscriminate manner against him after assaulting another inmate.

Case. No. 14-cv-8647 (PGG) (S.D.N.Y.), Dkt. No. 38, at 2–3, 9, 13. Yet here, it is undisputed

that Fernandez used pepper spray in a targeted and limited manner. See Def. Ex. G. On

summary judgment, Plaintiff must offer more than allegations that Defendants’ conduct

constituted excessive force—yet even reading the record favorably to him, no reasonable jury

could conclude that Fernandez’s use of pepper spray was or gratuitous. Because Officer

Fernandez did not violate a clearly established right, he is entitled to qualified immunity on

Plaintiff’s excessive-force claim. Accord Berry, 2014 WL 2158518, at **6–7 (granting qualified

immunity on similar facts in this posture), aff’d, 622 F. App’x at 11 (holding that defendants

were “entitled to qualified immunity”); Beauvoir, 345 F. Supp. 3d at 375–76 (same).

C. Defendants Are Entitled to Summary Judgment on Plaintiff’s Deliberate-

Indifference Claim

The Court next considers Mr. Quinones’s claim that the Intake Defendants—Defendants

Rochez, Wilson, Rollison, and Blackwood—were deliberately indifferent to the risk of harm that

other inmates posed to him. Specifically, Plaintiff claims that the Intake Defendants “were

notified of a credible threat to Mr. Quinones’ safety,” as it is undisputed that upon intake to

GVRC that Plaintiff and the two other inmates informed the Intake Defendants that they could

not be placed in Unit 8A, because the Macballas controlled that unit and that “their gangs had

problems with the Macballas and that plaintiff expected he would be attacked.” Dkt. No. 104

¶¶ 10–13. Because the Intake Defendants nonetheless placed him in Unit 8A, Plaintiff claims

that “they recklessly failed to act with reasonable care to mitigate that threat.” Dkt. No. 100 at

9–10.

“[P]rison officials have a duty to protect prisoners from violence at the hands of other

prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994). Therefore, “[a]llowing an attack on

an inmate to proceed without intervening is a constitutional violation in certain circumstances.”

Rosen v. City of New York, 667 F. Supp. 2d 355, 359 (S.D.N.Y. 2009). However, not every

injury that a prisoner suffers at the hands of another results in constitutional liability for the

officials responsible for that prisoner’s safety. See Farmer, 511 U.S. at 834. Instead, an official

must act with “‘deliberate indifference’ to a substantial risk of serious harm to an inmate.” Id. at

828. When such claims are made by a pretrial detainee such as Mr. Quinones, they “are

governed by the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and

Unusual Punishments Clause of the Eighth Amendment,” which as discussed above applies only

to convicted prisoners. Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017).

To state a claim for deliberate indifference, plaintiff’s allegations must satisfy a two-

prong test, referred to as the “objective prong” and the “subjective prong” (better understood as

the mens rea or mental element prong). See id. at 30–32; Taylor v. City of New York, No. 16-cv-

7857 (NRB), 2018 WL 1737626, at **11–12 (S.D.N.Y. Mar. 27, 2018). Under the first prong,

the inmate must show that the alleged violation was “sufficiently serious to constitute objective

deprivations of the right to due process.” Darnell, 849 F.3d at 29. The second prong requires

the defendant’s deliberate indifference to the objective deprivation. See id. at 32. Specifically,

“the pretrial detainee must prove that the defendant-official acted intentionally to impose the

alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the

condition posed to the pretrial detainee even though the defendant-official knew, or should have

known, that the condition posed an excessive risk to health or safety.” Id. at 35. As the Second

Circuit explained, “[i]n other words, the ‘subjective prong’ (or ‘mens rea prong’) of a deliberate

indifference claim is defined objectively.” Id. Although Darnell involved a Fourteenth

Amendment challenge to a prisoner’s conditions of confinement, its holding also applies to

failure-to-protect claims. See id. at 33 n.9 (“[D]eliberate indifference means the same thing for

each type of claim under the Fourteenth Amendment.”); Taylor, 2018 WL 1737626, at *12.

Here, the undisputed facts show that Plaintiff has failed to establish a genuine dispute as

to either prong. At best, the record evidence shows that Plaintiff informed a still-unidentified

intake officer that he could not be housed with Macballas gang members, in part because of “his

knowledge that Macballas did not let anyone else live with them while inside correctional

facilities.” Dkt. No. 104 ¶ 14. However, Plaintiff did not inform “any of the officers in Unit 8A

about his safety concerns.” Id. ¶ 18. And another inmate in the unit, Mike, whom Plaintiff knew

from his time living in Harlem, informed Plaintiff that “two other Blood gang members” also

lived in the housing unit. Id. ¶ 21. Indeed, Plaintiff admits that he “spoke with other Blood gang

members” and was informed that the Macballas permitted Blood members use one of the

telephones in the unit at certain times of the day. Id. ¶ 22. It is therefore undisputed that there

were multiple Blood gang members—as well as the other inmates who were not affiliated with

the Macballas, such as the two individuals with whom Plaintiff’s intake was processed—also

housed in Unit 8A, and that these individuals were not attacked by Macballas. Id. ¶ 21.

Moreover, Plaintiff did not inform the Intake Defendants (nor does he now contend) that

there was a more specific threat against him, such as one made by a specific Macballa member.

Cf. Rennalls v. Alfredo, 2015 WL 5730332, at *4 (S.D.N.Y. Sept. 30, 2015) (“A substantial risk

of serious harm can be demonstrated where there is evidence of a previous altercation between a

plaintiff and an attacker, coupled with a complaint by plaintiff regarding the altercation or a

request by [a] plaintiff to be separated from the attacker.”); Velez v. City of New York, No. 17-cv-

9841 (GHW), 2019 WL 3495642, at *4 (S.D.N.Y. Aug. 1, 2019) (“Those cases which have

found officers potentially liable for failing to prevent an attack involved clear and specific threats

against an inmate.”) (collecting cases). Given these undisputed facts, Plaintiff has failed to

establish a genuine dispute that “the conditions, either alone or in combination, pose an

unreasonable risk of serious damage to his health.” Walker, 717 F.3d at 135; accord Velez, 2019

WL 3495642, at *4 (S.D.N.Y. Aug. 1, 2019) (“a number of courts in this district have found that

an inmate informing an officer about a nebulous or untethered fear does not put an officer on

notice that the inmate is at risk of attack”) (collecting cases); see, e.g., Desulma v. City of New

York, No. 98-cv-2078 (RMB), 2001 WL 798002, at *7 (S.D.N.Y. July 6, 2001) (although prison

official knew that the plaintiff feared certain inmates and had requested protective measures,

“given the lack of prior history of violence between [plaintiff] and [his attackers,]” there was no

reason for him “to infer the existence of a threat of harm”).

For the same reason, no reasonable jury could conclude that the Intake Defendants

“act[ed] intentionally to impose the alleged condition, or recklessly fail[ed] to act with

reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though

the defendant-official knew, or should have known, that the condition posed an excessive risk to

health or safety.” Darnell, 849 F.3d at 35. There are certainly no facts in the record, and

Plaintiff does not point to any, suggesting that the Intake Defendants intentionally exposed

Plaintiff to harm. And given the number of non-Macballas housed in Unit 8A and the generality

of Plaintiff’s comment made to a single corrections officer, Plaintiff has not established a

genuine dispute that the Intake Defendants acted recklessly. See Dkt. No. 104 ¶¶ 16–18.

Moreover, a Department of Corrections report created after the incident identifies the assailant as

a Trinitarian gang member, not a Macballas member. See Def. Ex. K. It is undisputed that

Plaintiff never raised concerns about any gang other than the Macballas, and thus even with

Plaintiffs statement, the Intake Defendants were not reckless in placing him in Unit 8A, which

was controlled by the Macballas. See Dkt. No. 104 § 46. In sum, Defendants are also entitled

summary judgment on Plaintiffs deliberate-indifference claim.* Accord Anselmo v. Kirkpatrick,

No. 19-cv-0350 (TJM), 2019 WL 2137469, at *4 (N.D.N.Y. May 16, 2019) (“[A]Jn inmate’s

communications about ‘generalized safety concerns’ or ‘vague concerns of future assault by

unknown individuals’ are insufficient to provide knowledge that the inmate is subject to a

substantial risk of serious harm.” (quoting Ross v. City of New York, No. 12-CV-8545, 2014 WL

3844783, at *8 (S.D.N.Y. 2014) and collecting cases).

IV. CONCLUSION

For the reasons stated above, Defendants’ motion for summary judgment, Dkt. No. 91, is

GRANTED. The Clerk of Court is respectfully directed to enter judgment and close this case.

SO ORDERED. if a

Dated: November 1, 2020

New York, New York

ALISON J. NATHAN

United States District Judge

* For the same reasons, Plaintiff has not shown that the Intake Defendants violated a clearly established

constitutional right. They have pointed to no cases, let alone binding authority, holding “with specificity” that such

conduct constitutes a violation of the Fourteenth Amendment. See City of Escondido, Cal. v. Emmons, 149 S. Ct.

500, 501 (2019). The Intake Defendants, like Officer Fernandez, are therefore also entitled to qualified immunity.

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