# Lee v. Orange County Jail (Administration)

> District Court, S.D. New York · August 2, 2021

URL: https://www.frixlaw.com/law-library/cases/10333947

## Case

- **Court:** District Court, S.D. New York
- **Decided:** August 2, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HIBAH T. LEE,
Plaintiff,
MEMORANDUM
-against- OPINION AND ORDER

ORANGE COUNTY JAIL (ADMINISTRATION); 20-CV-5021 (PMH)
“JOHN DOE” ORANGE COUNTY FACILITY;
JOHN “DOE” ORANGE COUNTY SHERIFF
OFFICE,
Defendants.
PHILIP M. HALPERN, United States District Judge:
Plaintiff Hibah T. Lee (“Plaintiff”), a prisoner currently incarcerated at the Dutchess
County Jail, who is proceeding pro se and in forma pauperis, brings claims under 42 U.S.C. §
1983 against the County of Orange, Sergeant Dellapia (“Sgt. Dellapia”), Lawrence Catletti, Eric
Colby (“Colby”), Vincent Dichiaro, Keith Kiszka, Anthony Mele, James Potter, Jesse Weed, and
Michael Zappolo (collectively, “Defendants”) for violation of his substantive due process rights.
(Doc. 15, “Am. Compl.”).1
On November 17, 2020, Defendants filed a motion to dismiss (Docs. 19-21), which the
Court denied without prejudice to re-filing in accordance with the Court’s Individual Practices
(Doc. 23). Following the exchange of letters required under the Court’s rules, the Court granted
Defendants leave to file a motion to dismiss and set a briefing schedule. (Doc. 31). On January
29, 2021, Defendants filed their motion to dismiss.2 (Doc. 40; Doc. 42, “Def. Br.”). On March

1 Citations to the Amended Complaint correspond to the pagination generated by ECF.

2 Although the Declaration of Anthony F. Cardoso submitted in support of Defendants’ motion (Doc. 41)
avers that the only served defendants at the time of filing were the County and Dellapia, the record
indicates that at the time of filing, all Defendants had been served (Docs. 10, 11, 32-39). In any event, the
motion was brought on behalf of all Defendants. (Doc. 41 at 1, n.1).
15, 2021, Defendants filed a reply affirmation in further support of their motion to dismiss. (Doc.
45). Plaintiff did not file any opposition to Defendants’ motion to dismiss.3
For the reasons set forth below Defendants’ motion to dismiss is GRANTED.
BACKGROUND

Plaintiff alleges that while he was a pretrial detainee at the Orange County Correctional
Facility (the “Facility”), another inmate verbally threatened him. (Am. Compl. at 2, 4). Plaintiff
requested that he be placed in the Protective Custody Unit. (Id. at 4). Defendant Sgt. Dellapia
advised Plaintiff that an inmate with whom Plaintiff had a “no contact” order was in the
Protective Custody Unit; therefore, Defendants placed Plaintiff in the “solitary confinement” unit
to maintain him in protective custody instead of general population. (Id.).
Plaintiff believed that he would only be in the “solitary confinement” unit for a few days,
but the arrangement lasted thirty-one days. (Id.). Plaintiff also believed that he should have been
placed in his own housing unit as the Facility was “only at half capacity.” (Id.). On May 28,
2020, Plaintiff was placed in the Protective Custody Unit on a weekly rotation with the inmate

with whom Plaintiff had a “no contact” order. (Id. at 7). The other inmate left the Protective
Custody Unit on June 10, 2020, at which time Plaintiff was returned to that unit permanently.

3 Plaintiff’s brief in opposition to Defendants’ motion was originally due March 1, 2021. (Doc. 31). The
docket indicates that a copy of the Court’s Order setting the briefing schedule was mailed to Plaintiff.
(Dec. 28, 2020 Entry). On January 29, 2021, Defendants filed an affidavit of service indicating service of
their moving papers on Plaintiff. (Doc. 43). On March 15, 2021, Defendants filed an affidavit of service
on Plaintiff of counsel’s reply affirmation. (Doc. 46). Plaintiff did not file opposition papers or request
any extension of time within which to file his opposition. On March 31, 2021, the Court sua sponte
extended Plaintiff’s time to oppose the motion to April 30, 2021, warned Plaintiff that no further
extensions would be granted, and cautioned that failure to file an opposition by April 30, 2021, would
result in the motion being deemed fully submitted and unopposed (Doc. 47). The Court’s March 31, 2021
Order was mailed to Plaintiff. (See Apr. 1, 2021 Entry). Thus, as is clear from the docket, Plaintiff was
sent Defendants’ moving papers and reply affirmation, as well as a Court Order, notifying him that
Defendants had moved to dismiss his Amended Complaint. Accordingly, the Court deems the motion
fully submitted and hereby adjudicates it.
(Id.). Plaintiff thus alleges he spent thirty-seven non-consecutive days in the “solitary
confinement” unit during his requested protective custody. (Id.).
STANDARD OF REVIEW
On a Rule 12(b)(6) motion, a court may dismiss a complaint for “failure to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, 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 is plausible on its face “when the ple[d] factual
content allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant acted
unlawfully.” Id. The factual allegations pled “must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
“When there are well-ple[d] factual allegations, a court should assume their veracity and

then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at
679. Thus, the Court must “take all well-ple[d] factual allegations as true, and all reasonable
inferences are drawn and viewed in a light most favorable to the plaintiff[].” Leeds v. Meltz, 85
F.3d 51, 53 (2d Cir. 1996). The presumption of truth, however, “‘is inapplicable to legal
conclusions,’ and ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.’” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting
Iqbal, 556 U.S. at 678 (alteration in original)). Therefore, a plaintiff must provide “more than
labels and conclusions” to show entitlement to relief. Twombly, 550 U.S. at 555.
A complaint submitted by a pro se plaintiff, “however inartfully ple[d], must be held to
less stringent standards than formal pleadings drafted by lawyers.” Estelle v. Gamble, 429 U.S.
97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (internal quotation
marks omitted)). Because pro se plaintiffs “‘are often unfamiliar with the formalities of pleading

requirements,’ courts must apply a more flexible standard in determining the sufficiency of a pro
se [complaint] than they would in reviewing a pleading submitted by counsel.’” Smith v. U.S.
Dep’t of Just., 218 F. Supp. 2d 357 (W.D.N.Y. 2002) (quoting Platsky v. Cent. Intelligence
Agency, 953 F.2d 26, 28 (2d Cir. 1991)). While “[p]ro se complaints are held to less stringent
standards than those drafted by lawyers, even following Twombly and Iqbal . . . dismissal of a
pro se complaint is nevertheless appropriate where a plaintiff has clearly failed to meet minimum
pleading requirements.” Thomas v. Westchester Cty., No. 12-CV-6718, 2013 WL 3357171, at *2
(S.D.N.Y. July 3, 2013) (internal citations omitted); see also Chavis v. Chappius, 618 F.3d 162,
170 (2d Cir. 2010) (“Even in a pro se case . . . although a court must accept as true all of the
allegations . . . in a complaint, that tenet is inapplicable to legal conclusions, and threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” (internal quotation marks omitted)).
Therefore, while the Court must “draw the most favorable inferences that [a plaintiff’s]
complaint supports, [it] cannot invent factual allegations that [a plaintiff] has not pled.”
Chappius, 618 F.3d at 170. The Court also has a duty to interpret “the pleadings of a pro se
plaintiff liberally and interpret them ‘to raise the strongest arguments that they suggest.’”
McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d
787, 790 (2d Cir. 1994)).
ANALYSIS
I. Failure to State a Claim Under 42 U.S.C. § 1983
Construing Plaintiff’s pleading liberally, as the Court must, the Amended Complaint
appears to raise a substantive due process violation pursuant to 42 U.S.C. § 1983. That law

provides, in pertinent part, that “[e]very person who, under color of any statute . . . subjects, or
causes to be subjected, any citizen of the United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured
. . . .” 42 U.S.C. § 1983. “[T]his language does not create substantive rights; rather, it creates a
mechanism by which individuals can vindicate the violation of rights secured elsewhere.”
Santucci v. Levine, No. 17-CV-10204, 2021 WL 76337, at *3 (S.D.N.Y. Jan. 8, 2021). As such,
in each permutation of a claim under that law, “a plaintiff must demonstrate: ‘(1) a right secured
by the Constitution or laws of the United States was violated, and (2) the right was violated by a
person acting under color of state law, or a state actor.’” Town & Country Adult Living, Inc. v.
Vill./Town of Mount Kisco, No. 17-CV-08586, 2019 WL 1368560, at *17 (S.D.N.Y. Mar. 26,

2019) (quoting Walker v. Clemson, No. 11-CV-09623, 2012 WL 2335865, at *3 (S.D.N.Y. June
20, 2012)).
Pretrial detainee claims concerning unconstitutional conditions of confinement are
analyzed under the Fourteenth Amendment’s due process clause. Darnell v. Pineiro, 849 F.3d
17, 29 (2d Cir. 2017); Dinkins v. New York, No. 19-CV-08447, 2020 WL 5659554, at *8
(S.D.N.Y. Sept. 23, 2020). The due process clause does not permit prison officials to subject a
pretrial detainee to “punishment.” Bell v. Wolfish, 441 U.S. 520, 537, n.16 (1979). Accordingly,
courts must apply a two-part test when considering whether prison officials are impermissibly
subjecting a detainee to punishment: “[F]irst, the court must determine if the condition is
specifically imposed for the purposes of punishment or for a legitimate governmental purpose,
secondly, if evidence of punishment is lacking, this court must determine if the restriction is
reasonably related to a legitimate objective or constitutes an exaggerated response. If a
reasonable relationship can be established, punishment is not present and the Due Process clause

is not violated.” United States v. Basciano, 369 F. Supp. 2d 344, 350 (E.D.N.Y. 2005) (quoting
Boudin v. Thomas, 533 F. Supp. 786, 788-89 (S.D.N.Y. 1982)) (alterations in original, internal
quotation marks omitted).
Plaintiff does not allege that he was held in the “solitary confinement” unit for any
disciplinary reason, but rather alleges that he was held there for self-requested protective custody
motivated by his own safety concerns. (See generally Am. Compl.; see also Cabral v. Strada,
513 F. App’x 99, 101 (2d Cir. 2013). As no allegation has been made that the government’s
purpose in placing Plaintiff in “solitary confinement” was to punish him, the Court turns to the
second part of the Wolfish test, and analyzes whether Plaintiff’s placement in “solitary
confinement” for thirty-seven days is reasonably related to a legitimate government objective.

Basciano, 369 F. Supp. 2d at 351.
So long as the imposition of restrictive housing on detainees in response to safety
concerns “[are] not excessive in relation to that purpose,” prison officials are given “wide-
ranging deference in the adoption and execution of policies and practices that in their judgment
are needed to preserve internal order and discipline and to maintain institutional security.”
Cabral, 513 F. App’x at 101 (citing Wolfish, 441 U.S. at 547). “[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). Plaintiff alleges that his protective custody request was complicated by a “no
contact” order with an inmate who was also in the Protective Custody Unit. (Am. Compl. at 4,
7). Defendants did not keep Plaintiff in general population in light of this complication, but
instead protected Plaintiff from other inmates by placing him in the “solitary confinement” unit,
and later integrating him into the Protective Custody Unit full-time. (Id.).
The alleged thirty-seven non-consecutive days in the “solitary confinement” unit simply

is not an “exaggerated response” to the safety concerns raised by Plaintiff. Cabral, 513 F. App’x
at 101 (not an exaggerated response where detainees held in solitary confinement for eight
months for their own protection and facility security). In any event, Plaintiff does not allege any
deprivations allegedly suffered while in the “solitary confinement” unit, e.g., recreational time,
telephone access, food, or any other specific item or activity. (See generally Am. Compl.). Under
these circumstances, Plaintiff fails to state a due process claim as a matter of law and his
Amended Complaint must, therefore, be dismissed.4
CONCLUSION
Based upon the foregoing, Defendants’ motion to dismiss Plaintiff’s Amended Complaint
is GRANTED.5 While “[d]istrict courts should frequently provide leave to amend before
dismissing a pro se complaint . . . leave to amend is not necessary when it would be futile.”

Reed v. Friedman Mgt. Corp., 541 F. App’x 40, 41 (2d Cir. 2013) (citing Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir. 2000)). For all the reasons described herein, the Court dismisses the
Amended Complaint with prejudice as any amendment would be futile.

4 To the extent that Plaintiff also seeks to vindicate unidentified state law claims, those claims are “subject
to state procedural rules.” Russell v. Westchester Cmty. Coll., No. 16-CV-01712, 2017 WL 4326545, at
*5 (S.D.N.Y. Sept. 27, 2017) (internal quotation marks omitted). New York State County Law § 52(1)
and General Municipal Law § 50-e require the filing of a notice of claim as a condition precedent to
commencing a tort action against New York municipalities, or any of their officers, agents, or employees.
Olsen v. Cty. of Nassau, No. 05-CV-03623, 2008 WL 4838705, at *1 (E.D.N.Y. Nov. 4, 2008). Plaintiff
does not allege any attempt to comply with the strictly construed notice of claim requirements. Thus,
insofar as Plaintiff’s pleading could be construed to raise a state law claim, any such claim must be
dismissed.

5 Given the conclusions reached herein, the Court need not and does not reach Defendants’ alternate
argument regarding qualified immunity. (See Def. Br. at 6-7).
The Clerk of Court is respectfully requested to terminate the motion (Doc. 40); mail a
copy of this Memorandum Opinion and Order to Plaintiff; and to close this case.
SO ORDERED.
Dated: White Plains, New York
August 2, 2021 (Bram
Philip M. Halpern
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10333947. Public record. Not legal advice.