Gonzalez v. Hasty

17-3790-cv
Gonzalez v. Hasty, et al.
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 ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 14th day of November, two thousand eighteen.
Present:
DEBRA ANN LIVINGSTON,
DENNY CHIN,
Circuit Judges,
PAUL A. CROTTY,
District Judge.*
___________________________________________
ESTEBAN GONZALEZ,
Plaintiff-Appellant,
v. 17-3790-cv
DENNIS W. HASTY, JAMES SHERMAN, SALVATORE
LOPRESTI, ORTIZ, INSPECTOR BARRERE, C.O.
WHITE, #8413,
Defendants-Appellees.†
___________________________________________
For Plaintiff-Appellant: STEIG OLSON (Cleland B. Welton II, Andrew P.
Marks, on the brief), Quinn Emanuel Urquhart &
Sullivan, LLP, New York, NY.
For Defendants-Appellees: MICHAEL SHIH (Chad A. Readler, Richard P.
Donoghue, Rachel G. Balaban, H. Thomas Byron
* Judge Paul A. Crotty, of the United States District Court for the Southern District of New York, sitting by
designation.
† The Clerk of Court is respectfully instructed to amend the caption as set forth above.
III, on the brief), Civil Division, United States
Department of Justice, Washington, D.C.
Appeal from an order of the United States District Court for the Eastern District of New
York (Cogan, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order of the district court is AFFIRMED.
Plaintiff Esteban Gonzalez (“Gonzalez”) was convicted in 1994 of being a felon in
possession of a firearm in violation of federal law. In February 1999, while awaiting resentencing
on that charge at the Metropolitan Correctional Center (“MCC”) in Manhattan, Gonzalez assaulted
another inmate, for which he was also convicted. Immediately after the 1999 assault, MCC
officials placed Gonzalez in solitary confinement in MCC’s Special Housing Unit (“SHU”). In
July 2001, Gonzalez was transferred to the Metropolitan Detention Center (“MDC”) in Brooklyn,
where he remained in the MDC SHU. Gonzalez was released into the general population at MDC
in April 2002.
On May 31, 2005, Gonzalez sued several Bureau of Prisons (“BOP”) officials—including
former Warden Dennis W. Hasty (“Hasty”), Associate Warden James Sherman (“Sherman”),
Captain Salvatore LoPresti (“LoPresti”), and Lieutenants Steven Barrere (“Barrere”), Daniel Ortiz
(“Ortiz”), and Douglas White (“White”) (collectively, “Defendants”)—for money damages in their
individual capacities pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). Gonzalez alleged violations of the Due Process Clause of the
Fifth Amendment and the Cruel and Unusual Punishments Clause of the Eighth Amendment.
The United States District Court for the Eastern District of New York (Cogan, J.) granted summary
judgment to Defendants on all of Gonzalez’s claims, ruling that Ziglar v. Abbasi, 137 S. Ct. 18432
(2017), precluded such claims as a matter of law. Gonzalez appeals. We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
* * *
Bivens recognized an implied cause of action for damages under the Fourth Amendment to
compensate persons injured by federal officials’ violations of that Amendment’s prohibition
against unreasonable searches and seizures. 403 U.S. at 397. In Carlson v. Green, 446 U.S. 14(1980), the Court extended the Bivens remedy, holding that the Cruel and Unusual Punishments
Clause of the Eighth Amendment also provides an implied cause of action for damages for federal
jailers’ failure to provide adequate medical treatment to a prisoner. Id. at 19–21. See also Davis
v. Passman, 442 U.S. 228 (1979) (implying a damages remedy under the equal protection
component of the Fifth Amendment’s Due Process Clause). Since Carlson, however, the Court
has imposed substantial limits on implied damages remedies under the Constitution. Most
recently, in Abbasi, the Court established a stringent new test for extending the Bivens cause of
action to new contexts and made clear that “expanding the Bivens remedy is now a ‘disfavored’
judicial activity.” 137 S. Ct. at 1857 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)).
In the interim between Carlson and Abbasi, this Court has extended the Bivens remedy on
occasion, and in circumstances arguably relevant to Gonzalez’s claims in the instant appeal. In
the Fifth Amendment context, for example, we authorized such a remedy where a prisoner alleged
that federal jailers deprived him of procedural due process. See Tellier v. Fields, 280 F.3d 69 (2d
Cir. 2000). The parties have briefed and argued the question whether Abbasi abrogates our
precedent extending the Bivens cause of action beyond the three contexts of Bivens, Davis, and
Carlson. We need not address that question, however, to resolve the instant case. Here, even
assuming arguendo that Gonzalez has a valid cause of action after Abbasi, the Defendants are
entitled to qualified immunity, dooming his Due Process and Eighth Amendment claims.
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Qualified immunity will defeat a federal claim “unless a plaintiff pleads facts showing (1)
that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly
established’ at the time of the challenged conduct.” Ricciuti v. Gyzenis, 834 F.3d 162, 167 (2d
Cir. 2016) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). While qualified immunity
“does not require a case directly on point for a right to be clearly established, existing precedent
must have placed the statutory or constitutional question beyond debate.” White v. Pauly, 137 S.
Ct. 548, 551 (2017) (per curiam) (internal quotation marks omitted). Gonzalez has failed to show
any violation of his clearly established constitutional rights under either Amendment.
Accordingly, his claims were properly dismissed.
A. Fifth Amendment
Gonzalez argues that Defendants violated the Fifth Amendment by denying him the
process due in connection with his administrative detention. Prison officials seeking to place an
inmate in solitary confinement must provide the inmate with “some notice of the charges against
him,” “an opportunity to present his views to the prison official[s],” and “an informal,
nonadversary evidentiary review” of the grounds for his detention. Hewitt v. Helms, 459 U.S.
460, 476 (1983). Once detention has begun, the officials must “engage in some sort of periodic
review” of the confinement, taking into account a “wide range of administrative considerations”
like “prison conditions” and ongoing “investigation[s].” Id. at 477 n.9. To be “meaningful,”
this review must consider whether a “justification” for administrative detention “exists at the time
of the review or will exist in the future, and consider new relevant evidence as it becomes
available.” See Proctor v. LeClaire, 846 F.3d 597, 610-11 (2d Cir. 2017).
The record here does not reflect any conduct by Defendants sufficient to violate Gonzalez’s
clearly established due process rights. Gonzalez’s confinement began because he violently
assaulted another inmate. Upon his transfer to MDC, White issued an administrative detention
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order detaining Gonzalez “for security purposes” and because Gonzalez’s ultimate status was
“pending captain’s review.” App. 357. Gonzalez received a copy of that order at 10:00 p.m.
that night. Three days later, Barrere reviewed Gonzalez’s file and continued Gonzalez’s
detention because Gonzalez was a “high security” inmate. Sp. App. 6. For approximately the
next three weeks, Barrere reviewed Gonzalez’s records on a weekly basis. After Barrere was
reassigned, Ortiz carried out the required weekly reviews. Every thirty days, LoPresti reviewed
Gonzalez’s status at hearings that Gonzalez himself attended. Furthermore, Hasty reviewed
Gonzalez’s status at weekly meetings attended by Sherman, LoPresti, Barrere, and Ortiz. No
clearly established law could have alerted Defendants that they might violate the Fifth Amendment
merely by detaining Gonzalez in accordance with the relevant BOP regulations, or that the levels
of review required by those regulations were constitutionally deficient.
Gonzalez attempts to cast doubt on this documentary evidence principally by relying on
his own attestations in his deposition. But summary judgment cannot be defeated by the “mere
existence of a scintilla of evidence” supporting the non-movant’s position, see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986), especially when that evidence derives from the non-
movant’s own “contradictory and incomplete testimony” lacking “any corroborating evidence in
the record,” Jeffreys v. City of New York, 426 F.3d 549, 555 (2d Cir. 2005). Gonzalez at several
points in his deposition admitted (or at least acknowledged the possibility) that the meetings and
reviews required by BOP regulations did occur. Additionally, Gonzalez attempts to discredit
LoPresti’s review records by citing LoPresti’s prior conviction for falsification of documents.
But that conviction involved LoPresti’s attempt to conceal evidence of his physical altercation
with an inmate, a vastly different set of circumstances that does not justify a reasonable inference
that LoPresti fabricated the routine review forms at issue here.
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Most of Gonzalez’s remaining evidence regarding his due process claim is proffered to
show that, even if reviews did occur, they were not “meaningful.” See Proctor, 846 F.3d at 609.
Gonzalez relies on deposition testimony from Ortiz, Barrere, and LoPresti stating that he would
not have been released without Warden Hasty’s say-so. But this testimony simply establishes
that Warden Hasty retained the authority to overrule his subordinates, not that those subordinates
failed to exercise their own independent judgment as to Gonzalez’s case. Furthermore, the fact
that MDC officials discussed the status of some several dozen SHU inmates in periodic hour-long
meetings, does not justify an inference that those reviews were not meaningful, much less that
Gonzalez’s clearly established due process rights were violated. Indeed, the determinations to be
made in some—perhaps many—of these reviews may have been obvious given the inmates’ past
or recent conduct. For these reasons, no reasonable jury could have found that Defendants
violated Gonzalez’s clearly established rights under the Due Process Clause.
B. Eighth Amendment
Gonzalez next claims that the conditions of his confinement violated the Eighth
Amendment. Such a claim entails both objective and subjective components. First, the alleged
deprivation must be objectively “sufficiently serious,” Wilson v. Seiter, 501 U.S. 294, 298 (1991),
meaning that the prisoner must have been denied “the minimal civilized measure of life’s
necessities,” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). The Eighth Amendment requires
prison officials to provide for an inmate’s “basic human needs—e.g., food, clothing, shelter,
medical care, and reasonable safety,” Helling v. McKinney, 509 U.S. 25, 32 (1993) (internal
quotation marks omitted), and jailers may not expose a prisoner to “an unreasonable risk of serious
damage to his future health,” id. at 35. Second, the prison officials must have acted with a
“sufficiently culpable state of mind,” Wilson, 501 U.S. at 297, which in conditions-of-confinement
cases entails “deliberate indifference” to inmate health or safety, id. at 302–03.
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Gonzalez can identify no clearly established law under which the conditions of his
confinement at MDC violated this standard. 1 For purposes of qualified immunity, rights are
clearly established only if a court can “identify a case where an officer acting under similar
circumstances” was held to have violated the Constitution. White, 137 S. Ct. at 552. Gonzalez
claims that his cell at MDC was unsanitary and that he received only one new mop in response to
an informal grievance he filed. But no clearly established law states that these conditions violate
the Eighth Amendment. Cf. Gaston v. Coughlin, 249 F.3d 156, 165 (2d Cir. 2001) (reversing
grant of summary judgment for Eighth Amendment claim where “mice were constantly entering
[plaintiff’s] cell,” which was “filled with human feces, urine, and sewage water” for consecutive
days). Gonzalez claims that he was given inadequate clothing to protect him from MDC’s “cold
temperatures,” but that allegation does not constitute a clearly established Eighth Amendment
violation either. Cf. Corselli v. Coughlin, 842 F.2d 23, 27 (2d Cir. 1988) (reversing grant of
summary judgment for Eighth Amendment claim where, inter alia, prisoner alleged that he was
exposed for three months to temperatures so low that ice formed in toilet bowl). Nor has
Gonzalez identified any case establishing that the provision of soiled clothing or limited exercise
time, without more specifics, violates the Eighth Amendment.
Prison officials may violate the Eighth Amendment by exposing a prisoner to “an
unreasonable risk of serious damage to his future health,” Helling, 509 U.S. at 35, such as where
officials “ignore medical conditions that are very likely to cause serious illness and needless
suffering in the future.” Smith v. Carpenter, 316 F.3d 178, 188 (2d Cir. 2003) (internal quotations
omitted). Accordingly, Gonzalez alleges that BOP officials: (1) denied him dental hygiene
1
Gonzalez’s allegations regarding his treatment at MCC are irrelevant to this appeal. Defendants LoPresti,
Barrere, Ortiz, White, and Sherman were not employed by MCC when the conduct in question occurred. And
given Hasty’s reassignment from MCC to MDC on August 13, 2000, any claims against Hasty for his MCC conduct
are barred by the three-year statute of limitations applicable to Bivens claims. See Gonzalez v. Hasty, 802 F.3d 212,
217 (2d Cir. 2015).
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products, causing dental issues that ultimately required surgery three years after his release from
the SHU; and (2) provided him with “sneakers” that were “slip-on and had no laces,” “[a]s a direct
result of” which he later “fell and severely injured” himself. App. 520. The district court rightly
rejected these “conclusory” claims as “not objectively serious enough to raise an Eighth
Amendment violation.” Sp. App. 33. Nothing in the record suggests a reasonable inference
that the alleged denial of dental care and shoelaces was “very likely” to result in “serious illness
and needless suffering.” Smith, 316 F.3d at 188 (internal quotation marks omitted). At a
minimum, no clearly established law holds that an Eighth Amendment violation arises where
prison officials provided an inmate with toothbrush, toothpaste, and unlaced slip-on shoes, and the
inmate suffered injuries.
Finally, Gonzalez has failed to make out the subjective component of his Eighth
Amendment claim. A Bivens plaintiff cannot rely on respondeat superior to establish the liability
of defendants; instead, he must prove that “each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. Here,
Gonzalez must prove that each defendant acted with the “deliberate indifference” to inmate welfare
required for an Eighth Amendment violation. Wilson, 501 U.S. at 302–03. Yet Gonzalez has
not produced evidence that any of the individual defendants had specific knowledge of the alleged
constitutional violations at issue. Gonzalez points to numerous instances in which he complained
about his treatment to BOP officials, but he never specifies “which conditions [he] relayed to each
defendant, much less the defendant’s response.” Sp. App. 33. That absence of evidence
precludes a reasonable inference that any defendant acted with deliberate indifference to the
allegedly unconstitutional conditions of Gonzalez’s confinement.
* * *
8
We have considered all of Gonzalez’s remaining arguments and find them to be without
merit. For the foregoing reasons, the order of the district court is AFFIRMED.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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