Kenlock v. Dubois ( 2023 )

22-2799
Kenlock v. Dubois
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
3 New York, on the 11th day of December, two thousand twenty-three.
4
5 PRESENT:
6 GERARD E. LYNCH,
7 MICHAEL H. PARK,
8 STEVEN J. MENASHI,
9 Circuit Judges.
10 ____________________________________________
11
12 Orville Kenlock,
13
14 Plaintiff-Appellant,
15
16 v. 22-2799
17
18 Colonel Anthony M. Mele, Orange County, New
19 York Correctional Facility (Jail) Colonel, in his
20 individual capacity, Officer Bloise, Orange County,
21 New York Correctional Facility Officer, Shield
22 #360, in his individual capacity, Officers “John
23 Does,” Orange County, New York Correctional
24 Facility (Jail) Line and Command Officers, in their
25 individual capacities, Sergeant K. Kiszka, Orange
26 County, New York Correctional Facility (Jail)
27 Sergeant, Shield #134, in his individual capacity,
28
29 Defendants-Appellees. *
30 ____________________________________________
*
The Clerk of Court is respectfully directed to amend the caption accordingly.
1
2 FOR PLAINTIFF-APPELLANT: JAMES I. MEYERSON, New York, NY
3 (Michael Ranis, Goshen, NY, on the briefs).
4
5 FOR DEFENDANTS-APPELLEES: KELLIE E. LAGITCH, Chief Assistant County
6 Attorney, for Richard B. Golden, Orange
7 County Attorney, Goshen, NY.
8
9 Appeal from a judgment of the United States District Court for the Southern District of
10 New York (Román, J.).
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
12 DECREED that the judgment of the district court is AFFIRMED.
13 Orville Kenlock sued Orange County, New York and its employees, alleging various forms
14 of mistreatment while he was detained at Orange County Correctional Facility (“OCCF”) in 2018
15 and 2019. Kenlock alleged that in June 2018, Defendant-Appellee Officer Bloise ordered him to
16 remove toilet paper that was partially obscuring his cell window during a routine head count.
17 Kenlock was naked—he informed Bloise as much—but Bloise insisted on the removal of the
18 window covering, and Kenlock’s naked body was exposed to the officer’s view. Bloise’s order
19 was contrary to what Kenlock alleges was an informal but generally accepted practice of guards
20 to permit detainees to obscure the lower portion of their cell windows when they were using the
21 toilet or otherwise indisposed.
22 Kenlock filed a grievance. Then, he alleges, Bloise repeatedly harassed him: stopping by
23 his cell unbidden to call him names, hassling him on the way to substance abuse treatment, and
24 refusing to open his cell for a couple of hours without justification. Kenlock filed a second
25 grievance after Bloise stopped by his cell to call him names. In another incident that Kenlock
26 emphasizes, Bloise brought Kenlock a razor when Kenlock wanted to shave. When Bloise
2
1 approached Kenlock’s cell, Bloise called him “sexy chocolate” and told him that he could have
2 the razor without following the jail’s standard rules for borrowing razors. Kenlock characterizes
3 that encounter as a continuation of Bloise’s sexual harassment and an attempt to frame Kenlock
4 by inducing him to break the jail’s rules.
5 In addition to filing grievances, Kenlock sought mental health services following the head-
6 count incident. He ultimately submitted at least twelve requests for mental health services,
7 meeting with his assigned counselor on several occasions. But he was eventually informed that
8 he should stop submitting requests and “wasting” the jail’s mental health services. Joint App’x
9 at 59.
10 Kenlock brought claims under 42 U.S.C. § 1983 alleging violations of his rights under the
11 First, Fourth, and Fourteenth Amendments stemming from his interactions with Bloise and the
12 administrators’ decision to deny him access to mental health services. 2 The district court
13 dismissed each of his causes of action for failure to state a claim. He now appeals as to a subset
14 of those claims. We assume the parties’ familiarity with the underlying facts, the procedural
15 history of the case, and the issues on appeal.
16 We review de novo a district court’s grant of a motion to dismiss under Rule 12(b)(6).
17 Hernandez v. United States, 939 F.3d 191, 198 (2d Cir. 2019). We may affirm on any ground
18 that finds support in the record. Dettelis v. Sharbaugh, 919 F.3d 161, 163 (2d Cir. 2019).
2
Kenlock’s Second Amended Complaint asserted claims under the Fourth and Fourteenth
Amendments only. However, the district court properly analyzed Kenlock’s retaliation claims under the
First Amendment.
3
1 I. Fourth Amendment
2 A Fourth Amendment claim for the infringement of the right to bodily privacy requires an
3 actual, subjective expectation of bodily privacy on which officials lacked a sufficient justification
4 to intrude. See Harris v. Miller, 818 F.3d 49, 57 (2d Cir. 2016).
5 Whether there exists “sufficient justification” depends on whether a prisoner challenges a
6 prison policy or merely a particular search. Policies will be upheld if they are reasonably related
7 to a legitimate penological interest. See id. at 57-58 (citing Turner v. Safley, 482 U.S. 78, 89
8 (1987)); see also Florence v. Bd. of Chosen Freeholders, 566 U.S. 318, 326 (2012) (application to
9 pretrial detainees). But courts analyze challenges to isolated searches using the standards
10 articulated in Bell v. Wolfish, 441 U.S. 520 (1979). Harris, 818 F.3d at 57. Under those
11 standards, reasonableness remains the touchstone of the court’s analysis, but it must specifically
12 consider: (1) the scope of the particular intrusion; (2) the manner in which it is conducted; (3) the
13 justification for initiating it; and (4) the place in which it is conducted. See Bell, 441 U.S. at 559.
14 Here, the district court concluded that Bloise’s viewing of Kenlock’s naked body during a
15 head count was a justified infringement on Kenlock’s limited right to privacy in his cell and that
16 any intrusion on his privacy was minimal. There is adequate support in the record for us to agree
17 that, under the Bell factors, Bloise had sufficient justification for the limited infringement on
18 Kenlock’s privacy.
19 The first and last factors plainly favor Appellees: the scope of the intrusion (a brief viewing
20 of Kenlock’s naked body, from a distance, through a cell door) and the relatively private place in
21 which it occurred. Harris, 818 F.3d at 58, 62.
4
1 As to the second factor, the “justification for the search,” Kenlock alleges that Bloise had
2 no justification for ordering him to remove the toilet paper from his window. According to
3 Kenlock, the purpose of a head count is to ensure that detainees are physically in their cells, and
4 Bloise could see that Kenlock was present even with toilet paper covering the lower portion of the
5 cell window. Kenlock also contends that it was an “institution[] wide” practice to permit
6 detainees to cover the lower portion of their windows and that Kenlock had not had any issues
7 about this practice with other officers.
8 But Kenlock does not sufficiently allege that allowing detainees to cover their windows
9 was an institutional jail policy, rather than an informal practice that some guards chose to follow.
10 Indeed, his complaint recognizes that guards did, at least sometimes, need an unobstructed view
11 through a detainee’s cell window during head counts. See Joint App’x at 46-47 (referring to an
12 “alternative practice” by which guards would “continue the count of the other unit cells and return”
13 later to give a detainee time to cover themselves and remove the toilet paper covering the lower
14 portion of their cell window). Although Kenlock alleges that Bloise had “no objectively based
15 non pretextual legitimate security and/or safety justification” for the search, id. at 49, we need not
16 credit such conclusory allegations. To the extent he claims that there would have been no
17 constitutional violation if Bloise had skipped over his cell and returned later, he necessarily
18 recognizes that there exist legitimate reasons for guards to look into cells during a count. We
19 thus conclude that the “justification for the search” factor does not favor Kenlock either.
20 Even assuming that the remaining Bell factor—the manner in which the search was
21 conducted—favors Kenlock, he does not plausibly allege facts on which a jury could conclude that
5
1 the factors taken together establish a Fourth Amendment violation. We thus affirm the district
2 court’s dismissal of Kenlock’s Fourth Amendment claim.
3 II. Equal Protection
4 The district court dismissed Kenlock’s equal protection claims because the complaint failed
5 to allege “that Bloise treated him differently than others similarly situated.” Joint App’x at 124.
6 Kenlock fails to challenge the district court’s holding that he was obligated to identify comparators
7 of similarly situated individuals, see Schwapp v. Town of Avon, 118 F.3d 106, 112 (2d Cir. 1997)
8 (“We consider abandoned any claims not adequately presented in an appellant’s brief.”), but his
9 argument would fail even if he had done so.
10 Kenlock, relying primarily on cases from the employment context, argues that sexual
11 harassment violates the Equal Protection Clause. But even assuming that the cases on which
12 Kenlock relies apply in a prison or jail context, the standards articulated in those cases require the
13 plaintiff to show severe or pervasive sexual harassment to make out an equal protection claim.
14 See, e.g., Howley v. Town of Stratford, 217 F.3d 141, 153 (2d Cir. 2000). Isolated incidents of
15 harassment will not suffice unless they are “extraordinarily severe.” Id. (quoting Cruz v. Coach
16 Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000)). As explained above, Kenlock has not adequately
17 alleged that Bloise’s conduct was sufficiently severe or pervasive to make out a constitutional
18 claim.
19 III. Retaliation
20 We review Kenlock’s retaliation claims “with skepticism and particular care” because
21 “virtually any adverse action” taken against him by a jail official—“even those otherwise not rising
22 to the level of a constitutional violation—can be characterized as a constitutionally proscribed
6
1 retaliatory act.” Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (quoting Dawes v. Walker,
2 239 F.3d 489, 491 (2d Cir. 2001)). A “plaintiff asserting First Amendment retaliation claims
3 must allege ‘(1) that the speech or conduct at issue was protected, (2) that the defendant took
4 adverse action against the plaintiff, and (3) that there was a causal connection between the
5 protected speech and the adverse action.’” Id. (quoting Dawes, 239 F.3d at 492). “Only
6 retaliatory conduct that would deter a similarly situated individual of ordinary firmness from
7 exercising his or her constitutional rights constitutes an adverse action for a claim of retaliation.”
8 Id. at 353 (quoting Dawes, 239 F.3d at 493).
9 Kenlock’s claims against Bloise do not satisfy this standard. Additional searches and pat
10 frisks, verbal harassment, an alleged unsuccessful attempt to induce Kenlock to violate jail rules
11 for borrowing razors, and a less-than-one-day lockdown do not constitute adverse actions under
12 the Davis v. Goord standard. Cf. Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004) (holding
13 three weeks in keeplock to be adverse action); Burns v. Martuscello, 890 F.3d 77, 93-94 (2d Cir.
14 2018) (holding six months in involuntary protective custody to be adverse action). All of these
15 actions taken together also do not suffice to state a retaliation claim against Bloise. Cf. Kotler v.
16 Boley, No. 21-1630, 2022 WL 4589678, at *2 (2d Cir. Sept. 30, 2022) (holding that a cell search,
17 a filing of false misbehavior report, and false testimony at a misbehavior hearing resulting in
18 several months of disciplinary confinement could “collective[ly]” constitute an adverse action).
19 Nor does Kenlock state a retaliation claim as to the remaining Appellees. Even assuming
20 that he has plausibly alleged a denial of mental health services and that such denial was an adverse
21 action, he makes no nonconclusory allegations linking that adverse action to constitutionally
22 protected conduct. To state a claim, a plaintiff must plead a causal link between his protected
7
1 conduct and subsequent adverse action. See Davis, 320 F.3d at 352. Kenlock has not done so.
2 We thus affirm the district court’s dismissal of his retaliation claims. 3
3 * * *
4 We have considered all of Kenlock’s remaining arguments and find them to be without
5 merit. For the foregoing reasons, the judgment is AFFIRMED.
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk of Court
8
9
3
Kenlock also argues that the withholding of mental health services is actionable under the
Fourteenth Amendment as a denial of medical care creating unconstitutional conditions of confinement.
To state a claim for deliberate indifference under the Fourteenth Amendment, a plaintiff must allege “both
(a) conditions that objectively ‘pose an unreasonable risk of serious damage to . . . health’; and (b) 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.’” Vega v. Semple, 963 F.3d 259, 273-74 (2d Cir. 2020) (emphasis in original) (internal footnote
and citation omitted) (quoting Darnell v. Pineiro, 849 F.3d 17, 30, 35 (2d Cir. 2017)). Kenlock has not
alleged sufficient facts for a reasonable jury to conclude that any denial of mental health services posed an
unreasonable risk of serious damage to his health. See Charles v. Orange County, 925 F.3d 73, 86 (2d
Cir. 2019) (noting that, while psychological conditions can sometimes present serious medical needs, the
relevant standard “contemplates a condition of urgency such as one that may produce death, degeneration,
or extreme pain”).
8