McIntosh v. Bayly

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_______________________________________

JOHN A. McINTOSH,

Plaintiff, DECISION AND ORDER

-vs-

21-CV-6075 (CJS)

DAVID PRULL II et al.,

Defendants.

_______________________________________

INTRODUCTION

Now before the Court is John A. McIntosh’s (“Plaintiff”) amended pro se complaint.

[ECF No. 10]. For the reasons discussed below, Plaintiff’s complaint [ECF No. 10] is

dismissed with prejudice. The Clerk is directed to close this case.

BACKGROUND

Plaintiff asserts multiple claims, stemming from a series of incidents that occurred

between January 26, 2018 and February 14, 2018, against Defendants David Prull II and

Monroe County Sheriff deputies 1–30. Am. Compl., Dec. 27, 2021, ECF No. 10. Plaintiff

summarizes the relevant facts as follows:

On . . . January 26, 2018, Officer Prull put me in the back of a police car. I

was loud and made a ruckus while I was back there and I said . . . he did

not have any right to arrest me. I told him and a female officer I wanted out

of the car. I told him and the female officer that they didn’t know what they

were doing as in that they do not know how to perform their job properly. I

told each of them that I wanted out of the car and the handcuffs taken off. I

told each of them that the cuffs were too tight and that one of my hands

especially was hurting and numb . . . . I was held at Monroe County jail for

about 2 weeks.

* * *

. . . . For the first week, I was housed at the intake level in solitary

confinement. When I first got there one officer was especially abrasive to

me because I would not give them permission to give me a PPD which is a

test for [tuberculosis or “TB”]. I was dying of thirst, and he would show me

a milk and then ask me if I was going to take the TB shot, and when I said

no, he threw it in the garbage. I was dying of thirst and food and I got nothing

for more than the first day and night. There was a water fountain at the top

of the toilet, but . . . it is not unheard of for an inmate to smash feces in the

hole the water comes out . . . .

The main torture I received was that on a Friday at dinner time about, I had

a tooth become infected and become extraordinarily painful. I told all the

guards, but they would not take me to get any substantial medical treatment.

My dentist, who was not my usual dentist . . . had told me days before that

a filling he did for me had gone wrong and would likely become infected . .

. I told the deputies to shoot me instead of torturing me as disturbing as that

is to reveal . . . .

While I was at MCJ, I supposedly had trial, and my mom and dad came to

the jail immediately upon my incarceration and several times there after to

pay the bail but the jail would not accept the bail because Justice Bayly had

instructed the jail to not let me be released until a 730 examination had been

done.

Am. Compl. at 2–8.

Plaintiff filed his original complaint [ECF No. 1] on January 27, 2021 along with an

in forma pauperis motion [ECF No. 2]. The Court granted the in forma pauperis motion

but screened out many of Plaintiff’s original claims. Dec. and Order, June 9, 2021, ECF

No. 3. Plaintiff was given leave to replead the claims against Defendants David Prull II

and Monroe County Sherriff Deputies 1–30. Id.

LEGAL STANDARD

The determination of whether an in forma pauperis plaintiff should be permitted to

proceed under 28 U.S.C. § 1915 involves two separate considerations. Pace v. Waterbury

Police Dep't, No. 3:17CV00426(DJS), 2017 WL 1362683, at *1 (D. Conn. Apr. 12, 2017).

First, the Court must determine whether the plaintiff satisfies the statutory requirements

to proceed with the action without prepaying the filing fee in full. See 28 U.S.C. § 1915(a).

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Second, the Court must review the complaint to determine whether the plaintiff has stated

a cognizable, non-frivolous claim. Pace at *1. The Court must dismiss the case if it

determines that the case “is frivolous or malicious,” “fails to state a claim on which relief

may be granted,” or “seeks monetary relief against a defendant who is immune from such

relief.” 28 U.S.C. § 1915(e)(2)(B)(i)–(iii).

The Court is obliged to construe pro se pleadings liberally, and interpret them to

raise the “strongest [claims] that they suggest.” Triestman v. Fed. Bureau of Prisons, 470

F.3d 471, 474 (2d Cir. 2006). Nevertheless, to state a claim on which relief may be

granted, pro se plaintiffs must still comply with the pleading requirements of Rule 8 of the

Federal Rules of Civil Procedure. To satisfy Rule 8, the Supreme Court has held that “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)).

The plausibility standard “asks for more than a sheer possibility that a defendant

has acted unlawfully.” Iqbal, 556 U.S. at 678. It requires “enough fact[s] to raise a

reasonable expectation that discovery will reveal evidence of [the alleged misconduct].”

Twombly, 550 U.S. at 556. Where a court is unable to infer more than the possibility of

misconduct based on the pleaded facts, the pleader has not demonstrated that he is

entitled to relief and the action is subject to dismissal. Iqbal, 556 U.S. at 678. When

applying this standard, a district court must accept the allegations contained in the

complaint as true and draw all reasonable inferences in the plaintiff’s favor. Burnette v.

Carothers, 192 F.3d 52, 56 (2d Cir. 1999), cert. denied, 531 U.S. 1052 (2000).

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DISCUSSION

With respect to the first consideration, as noted above the Court has already found

that Plaintiff satisfies the requirements to proceed in forma pauperis laid out in 28 U.S.C.

§ 1915(a). ECF No. 3. With respect to the second consideration – whether Plaintiff has

stated a cognizable, non-frivolous claim – the Court has reviewed Plaintiff’s amended

complaint, and interprets Plaintiff’s claims as brought pursuant to 42 U.S.C. § 1983.

To state a § 1983 claim, a claimant must allege two essential elements. First, the

conduct challenged must have been “committed by a person acting under color of state

law.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d

545, 547 (2d Cir. 1994)). Second, “the conduct complained of must have deprived a

person of rights, privileges or immunities secured by the Constitution or laws of the United

States.” Id.; see also Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999). For the reasons that

follow, the Court finds that Plaintiff has failed to state a claim, under § 1983 or any other

relevant authority, upon which relief can be granted.

Plaintiff’s Claims Against Monroe County Sheriff Deputies 1–30 must be dismissed.

Plaintiff cites multiple grievances against Sheriff Deputies 1–30, which this court

construes as § 1983 claims of denial of medical care, and unconstitutional conditions of

confinement. Am. Compl. at 5-7. Each of those claims must be dismissed.

Denial of Medical Care

A § 1983 claim for a denial of medical care requires the Plaintiff to demonstrate:

(1) that an official “denied [him] treatment needed to remedy a serious medical condition,”

and (2) that the official did so “because of his deliberate indifference to that need.” Weyant

v. Okst, 101 F.3d 845, 856 (2d Cir. 1996). In that regard, Plaintiff evidently developed a

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toothache while in jail, and his repleaded complaint against Sheriff Deputies 1–30 [ECF

No. 10] alleges:

While I was in the Bug out pit I gave a grievance to a ‘white shirt’ and

complained about my tooth and my lack of treatment and proper care

among other things including not being let out of my cell for almost a week.

[ECF No. 10].

Plaintiff’s toothache, however, was not sufficiently serious to rise to the level of a

constitutional claim. The serious medical need requirement contemplates a condition of

urgency, one that may produce death, degeneration, or extreme pain. Banks v. Mannoia,

890 F. Supp. 95, 99 (N.D.N.Y. 1995). The types of conditions which have been held to

meet the constitutional standard of “serious medical need” include a brain tumor, a broken

hip, premature return to prison after surgery, diabetes requiring special diet, a bleeding

ulcer, and loss of an ear. See Banks, 890 F. Supp. at 99 (collecting cases). Plaintiff’s

allegation of a toothache is far from the serious medical problems listed above. Rather, it

is closer to those conditions which have been held to fall short of the constitutional

standard, such as a mild concussion, a broken jaw, cold symptoms, headaches, a broken

finger, a toothache, or “bowel problems.” Banks, 890 F. Supp. at 99 (collecting cases).

Therefore, the Court finds that Plaintiff’s condition was not sufficiently serious to meet the

constitutional standard, and his claim for denial of medical care must be dismissed.

Unconstitutional Conditions of Confinement

Plaintiff also claims that an officer was abusive to him while he was housed at the

intake level in solitary confinement when the officer showed him a milk and would not give

it to him unless he took a purified protein derivative (“PPD”) test for latent tuberculosis,

that he got nothing to eat or drink for more than the first day, and that he believed feces

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may have been smeared on the hole of the water fountain above the toilet. Am. Compl.

at 5.

Plaintiff’s amended complaint against Sheriff Deputies 1–30 [ECF No. 10] fails to

show unconstitutional conditions of confinement. As a pretrial detainee, Plaintiff’s claims

of unconstitutional conditions of confinement are governed by the Due Process Clause of

the Fourteenth Amendment, rather than the Cruel and Unusual Punishments Clause of

the Eighth Amendment. Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). Both standards

require an objective component that considers the nature of the dangers created by the

conditions alleged. See Kingsley v. Hendrickson, 576 U.S. 389, 398 (2015). In addition,

there is a subjective component that addresses whether a defendant possessed the

requisite state of mind:

[T]o establish a claim for deliberate indifference to conditions of confinement

under the Due Process Clause of the Fourteenth Amendment, 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.

Darnell, 849 F.3d at 35. Each condition “must be measured by its severity and duration,

not the resulting injury . . . .” Darnell, 849 F.3d at 31-32.

Plaintiff’s allegations fall short of sufficiently serious conditions of confinement, and

do not support an inference of deliberate indifference. With respect to being denied food

for a day, and tempted with milk in return for a tuberculosis test, “Plaintiff’s broad

allegations regarding the deprivation of food . . . over a relatively brief, finite period . . .

fail to rise to a level sufficient to sustain a claim for due process violation under the

Fourteenth Amendment.” Ambersile v. Prisoner Transp. Serv. Of Am., LLC,

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917CV0564TJMDEP, 2019 WL 1024183, at *12 (N.D.N.Y. Mar. 4, 2019), report and

recommendation adopted, 917CV0564TJMDEP, 2019 WL 1368860 (N.D.N.Y. Mar. 26,

2019).

Further, Plaintiff’s claim regarding his decision not to drink water from the fountain

over the toilet due to his belief that feces was in the hole does not state a claim. To begin

with, Plaintiff’s claim is inadequate because his potential exposure to the condition was

of limited duration and only speculates as to the existence of feces in the water fountain,

without alleging the condition definitively. See Myers v. City of New York, No. 11 Civ.

8525(PAE), 2012 WL 3776707, at *7 (S.D.N.Y. Aug. 29, 2012), aff'd, 529 Fed.Appx. 105

(2d Cir.2013) (finding no claim where the condition did not last “at least for multiple days”);

Twombly, 550 U.S. at 555 (“[f]actual allegations must be enough to raise a right to relief

above the speculative level”). Moreover, Plaintiff never indicates that he alerted anyone

to the presence of the condition, leaving no plausible basis to support an allegation of

deliberate indifference. Therefore, the Court finds that these claims must be dismissed

for failure to show unconstitutional conditions of confinement.

Plaintiff’s Claims Against David Prull II

Plaintiff also cites multiple grievances against David Prull II (“Officer Prull”), which

this court construes as § 1983 claims of false arrest, false imprisonment, excessive force

(handcuffs), and illegal search. Am. Compl. at 1–3. Each of those claims must be

dismissed because Plaintiff’s allegations do not satisfy the pleading standards of Rule 8

of the Federal Rules of Civil Procedure.

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False Arrest / False Imprisonment

The standards regarding § 1983 claims for false arrest and false imprisonment are

identical. Hall v. Brown, 489 F. Supp.2d 166, 173 (N.D.N.Y.2007) (“In terms of § 1983,

[false arrest and false imprisonment] are treated as a single tort.”). Claims for false arrest

/ false imprisonment may be brought pursuant to § 1983 because they implicate the

Fourth Amendment’s protection of an individual’s liberty interest with respect to criminal

prosecutions. Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 115 (2d Cir. 1995). To state

such a claim, a plaintiff must allege that: (1) the defendant intended to confine the plaintiff;

(2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the

confinement; and (4) the confinement was not otherwise privileged. Colon v. City of

Rochester, 419 F. Supp.3d 586, 596 (W.D.N.Y. 2019) (citing Hernandez v. United States,

939 F.3d 191, 199 (2d Cir. 2019).

In the present case, Plaintiff bases his claim of false arrest / false imprisonment on

overhearing Officer Prull “arguing about what to charge me with” and he gave Plaintiff a

look that “messaged to me . . . that he was going to do whatever he could to ‘get’ me.”

Am. Compl. at 3. These allegations, like the ones made in Plaintiff’s original complaint

[ECF No. 2], are precisely the type of “naked assertion[s] devoid of further factual

enhancement” that the Supreme Court has rejected as insufficient to adequately state a

claim. Iqbal, 556 U.S. at 677. Specifically, Plaintiff fails to specify what the stated grounds

for his arrest actually were, and why the deprivation of his liberty was unreasonable. See

Walker v. Sankhi, 494 F. App'x 140, 142 (2d Cir. 2012) (“To state a valid claim for false

arrest . . . under § 1983, a plaintiff must plead an unreasonable deprivation of liberty in

violation of the Fourth Amendment . . . .”). Having already afforded Plaintiff the opportunity

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to replead his claim to address the plausibility issues with his original complaint, the Court

finds that the false arrest claim must be dismissed for failure to state a claim.

Excessive Force

It is well established that the right to make an arrest carries with it the right to use

some degree of physical coercion. Graham v. Connor, 490 U.S. 386, 396 (1989).

Frequently, a reasonable arrest involves handcuffing the suspect, and to be effective

handcuffs must be tight enough to prevent the arrestee's hands from slipping out. Esmont

v. City of New York, 371 F. Supp.2d 202, 214–15 (E.D.N.Y. 2005) (citation omitted). The

reasonableness of the handcuffing of an arrestee must be determined in light of the

minimal amount of force necessary to maintain custody of him or her. Id. (citing Santos v.

Gates, 287 F.3d 846, 854 (9th Cir. 2002)). In addition, in evaluating the reasonableness

of handcuffing, a Court is to consider evidence that: 1) the handcuffs were unreasonably

tight; 2) the defendants ignored the arrestee’s pleas that the handcuffs were too tight; and

3) the degree of injury to the wrists. Id.

Plaintiff does allege that officer Prull fastened the handcuffs too tight, and that he

complained to Officer Prull about the tightness. He states “I told each of them that the

cuffs were too tight and that one of my hands especially was hurting and numb.” Am.

Compl. at 2. However, Plaintiff fails to allege he sustained an injury beyond temporary

discomfort from the tight handcuffs. See, e.g., Lynch v. City of Mount Vernon, 567 F.

Supp.2d 459,468 (S.D.N.Y. 2008) (stating there is a consensus among courts in this

circuit that tight handcuffing does not constitute excessive force unless it causes some

injury beyond temporary discomfort). Therefore, the Court finds that these claims must

be dismissed for failure to state a claim.

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Illegal Search

The Fourth Amendment protects against illegal searches. U.S. Const. amend. IV.

“A ‘search’ in the context of the Fourth Amendment occurs when the police intrude upon

a person’s reasonable expectation of privacy or if the police otherwise trespass upon

one’s person, house, papers, or effects for the purpose of acquiring information.”

Jennings v. Decker, 359 F. Supp.3d 196, 207–08 (N.D.N.Y. 2019) (citing Conroy v.

Caron, 275 F. Supp.3d 328, 340 (D. Conn. 2017); Florida v. Jardines, 569 U.S. 1 (2013)).

Nevertheless, “it is well-established that a lawful custodial arrest permits police officers to

conduct a full search of “the arrestee’s person and the area ‘within his immediate control.’”

United States v. Galan, No. 14-CR-450 RRM, 2015 WL 1602151, at *8 (E.D.N.Y. Apr. 9,

2015) (quoting Arizona v. Gant, 556 U.S. 332, 339 (2009)).

Plaintiff’s claim for illegal search is based on his statement, “I said that he did not

have any right to arrest me . . . Officer Prull had taken everything out of my pockets before

I was put in the back of the police car, and he put everything he took from me I think on

the top part of the hood of the car.” Am. Compl. at 1–3. Notwithstanding Plaintiff’s

conclusory assertions that he was falsely arrested, his allegations do not plausibly

suggest that Officer Prull’s search of Plaintiff extended beyond what was necessary in the

interest of officer safety. See United States v. Davis, 111 F. Supp.3d 323, 336 (E.D.N.Y.

2015) (citing Riley v. California, 573 U.S. 373, 387 (2014)). Consequently, the Court finds

that this claim must be dismissed for failure to state a claim.

CONCLUSION

The Court has already provided Plaintiff with an opportunity to amend his complaint

to state a claim. See Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)

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(“a pro se plaintiff who is proceeding in forma pauperis should be afforded the same

opportunity as a pro se fee-paid plaintiff to amend his complaint prior to its dismissal for

failure to state a claim”). Accordingly, it is hereby

ORDERED that pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), Plaintiffs amended

Complaint [ECF No. 10] is dismissed with prejudice for failure to state a claim upon which

relief may be granted. The Clerk is directed to close this case.

The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal

from this Order would not be taken in good faith and leave to appeal to the Court of

Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962).

Further requests to proceed on appeal as a poor person should be directed, on motion,

to the United States Court of Appeals for the Second Circuit, in accordance with Rule 24

of the Federal Rules of Appellate Procedure.

SO ORDERED.

Dated: March 15, 2022

Rochester, New York

ENTER:

Chetbia, saat wa

Hon. CharlesJJ. Sirag

UNITED STATES DIS T JUDGE

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