SHERON WALTERS v. CITY OF NEW YORK (2025)

REPORT AND RECOMMENDATION ON MOTION

TO: HON. ANALISA TORRES, UNITED STATES DISTRICT JUDGE

FROM: HON. KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE

This case concerns the conditions at Rikers Island Correctional Facility during the COVID-19 pandemic. Plaintiff was incarcerated there in 2021 as a pretrial detainee, both before and after a vaccine became available. He asserts safety protocols were insufficient, causing him to become infected with the virus, and that newly infected and re-infected inmates were sent to his housing area “in response” to protests that additional infected inmates should not be sent to their housing area. He also suggests he was confined in a housing unit for individuals with the virus when he did not have it. He asserts claims under the First, Eighth and Fourteenth Amendment for violation of his right to due process, deliberate indifference to prison conditions, and cruel and unusual punishment.

Discovery now complete, Defendant, the City of New York (the “City”), has moved for summary judgment. (ECF No. 34). For the following reasons, I respectfully recommend that the motion be granted.

RELEVANT FACTS 1

Plaintiff was incarcerated at Eric M. Taylor Center (“EMTC,” also denoted “CIFM” in DOC records) on Rikers Island. DOC movement records confirm he arrived on or around February 6, 2021, and was moved to EMTC on or around February 7, 2021.

The City Department of Corrections (“DOC”) and Correctional Health Services (“CHS”) administered COVID-19 testing to new arrivals on Rikers Island. They first administered a COVID-19 test to Plaintiff on February 7, 2021, and the results were negative. (ECF No. 39-2, at 24.) Subsequently, DOC moved him into housing area 11M at EMTC, which the parties do not dispute was a quarantined unit in a dorm with other negative individuals. Plaintiff testified at his deposition that while individuals in this housing area were meant to be quarantined for fourteen (14) days, new detainees were brought into the unit during the night, which Plaintiff believed was improper. (ECF No. 39-3, at 26:2-28:22.) He said one new detainee appeared ill and was moved before his quarantine was up, which Plaintiff believed was because that detainee developed COVID-19 and tested positive. (Id.)

On February 18, 2021, Plaintiff received a second COVID-19 test, which came back positive. (ECF Nos. 39-1; 39-2, at 19.) On February 19, 2021, Plaintiff self-reported that he was not experiencing chills or sweats, and did not have shortness of breath or a cough. (ECF No. 39-2, at 17.) On February 23, 2021, he was moved to housing area 5L, where he stayed until March 03, 2021. (ECF No. 39-1.) The parties do not dispute that this was a COVID-19 positive housing area. (ECF No. 39-2, at 18.) On March 1, 2021, Plaintiff was cleared to return to the general population. (Id. at 11.) At that time, his medical records indicated he had “no documented repo[r]t of COVID[-]like symptoms since entering [COVID-confirmed] housing.” (Id.) On March 3, 2021, he was moved to George R. Vierno Center, where he was housed in 2023 at the time the complaint was filed. (ECF Nos. 1; 39-1.)

On January 12, 2022, CHS screened Plaintiff for COVID-19 again and noted he resided in housing area “2C/B/” of Vernon C. Baines Center (“VCBC”) (ECF No. 42, at 77.) Plaintiff says this area was COVID-19 confirmed positive housing.

Plaintiff testified that he had asthma, but that it was well controlled and his asthma symptoms were rare and mild, typically only presenting once a month during strenuous exercise. He testified that he once suffered an asthma-related episode when he ate brown eggs in 2016, saying the eggs triggered the event, resulting in his use of a friend's machine for oxygen. (ECF No. 39-3, at 19:17-25; 20:7-23:10.)

DOC policy in February 2021 was that all new admissions would be offered a COVID-19 test, administered by CHS. Those agreeing to be tested were held in a housing area for newly admitted individuals pending COVID-19 test results. Only upon a negative test was an individual transferred to general population housing. Those who declined testing were quarantined for 10-14 days before they were housed. (ECF No. 36 ¶ 3.)

DOC also offered COVID-19 tests following a contact tracing investigation, for surveillance testing purposes, and for symptomatic individuals. Incarcerated individuals could also request tests from CHS. CHS staff monitored people for signs of the virus at various contact points within the criminal justice process. DOC policy was to instruct staff to refer any person in custody exhibiting COVID-19-like symptoms to CHS for evaluation. DOC staff was trained how to spot COVID-19 symptoms. DOC facilities contained informational posters throughout regarding COVID-19 symptoms and the types of precautions to take. (Id. ¶¶ 4-7.)

In January 2021, CHS began offering the COVID-19 vaccine to high-risk incarcerated individuals. It began offering the vaccine to all incarcerated individuals in March 2021. (Id. ¶¶ 8-9.) Plaintiff testified he had access to but declined the vaccine. (ECF No. 39-3, at 98:2-25.)

All staff were screened for COVID-like symptoms or illness before entering jail facilities. The process was developed in accordance with the available federal, state and city health guidance, inclusive of a self-assessment of symptoms and a temperature screening. Staff members with a temperature over 100.4 degrees Fahrenheit or who answered yes to any of the self-assessment questions were sent home and directed to notify an appropriate agency. Likewise, if, during their shift, any DOC staff member experienced flu-like symptoms or developed a temperature above 100 degrees, they were required to leave the facility immediately. Staff members who came into contact with COVID-19 positive individuals in custody were directed to monitor their health and contact their doctors for medical advice. All DOC and CHS personnel had regular access to free COVID-19 testing. Furthermore, DOC staff had access to the COVID-19 vaccine since January 2021. (ECF No. 36 ¶¶ 10-16.)

At the relevant times, DOC operated dedicated units for individuals who had high risk of serious illness from COVID-19, individuals who were symptomatic or tested positive, and asymptomatic individuals. (Id. ¶ 17.)

The DOC also had cleaning and sanitizing protocols for housing units (once per day), contact surfaces (every two hours), shower areas (three times a day), and transport buses (daily). Trained work crews performed the cleaning of housing areas. Sanitizing solution and sponges were available near the phones in each housing unit. Cleaning supplies were available to incarcerated individuals who requested them, except where access to materials would present a security issue. While DOC did not distribute hand sanitizer to people in custody, which would present a security concern due its flammability, sinks with running water and soap were available. DOC Housing Area Captains performed daily inspections to ensure availability of soap and cleaning supplies and daily audits of the availability of these items. DOC operated with 100% outside air and did not recirculate the conditioned air from housing or administrative areas. (Id. ¶¶ 18-25.)

Among other strategies to reduce population in DOC facilities, DOC worked with state and local officials, as well as prosecutors and defense attorneys, to identify incarcerated individuals who should be released due to potentially heightened health risk, totaling approximately 1,500 individuals. (Id. ¶¶ 26-27.) DOC re-opened EMTC, where Plaintiff was housed from February 6, 2021, to March 3, 2021, with the express purpose of allowing for a less dense distribution of residents throughout Rikers. It was DOC policy to have an empty bed between people in custody, and people in custody were instructed not to sit on other people's beds. (Id. ¶¶ 28-29.) DOC painted social distancing cues on chairs and benches to help individuals understand and maintain safe distance from one another in communal spaces. (Id. ¶ 30.) DOC also posted notices describing social distancing guidelines in all facilities. All persons in custody, as well as staff, were given masks and encouraged to use them. Masks also were required in the recreation yard. Officers failing to wear masks, except when eating or drinking, faced disciplinary action. (Id. ¶¶ 31-33.)

Plaintiff had access to masks, soap, and cleaning supplies. (Id. ¶ 33.) The New York State Commission of Correction conducted inspections of several Rikers Island facilities, and occasionally followed up with letters to then-DOC Commissioner Brann. They made two recommendations, which DOC addressed. (Id. ¶¶ 34-35.)

CHS advised DOC's COVID-19 response, utilizing guidance provided by federal, state, and city public health authorities. CHS oversaw COVID-19 testing of incarcerated individuals and took steps to reduce the likelihood of transmission and exposure. (Id. ¶ 37.) CHS separately administered therapeutic housing units for patients with certain medical needs, including dedicated COVID-19 units. (Id. ¶ 43.) CHS COVID-19 policies to advise DOC and treat people within CHS's care substantially mirrored (or exhibited a broader scope than) the DOC policies discussed above. (Id. ¶¶ 38-65.)

PROCEDURAL HISTORY

Plaintiff originally filed this action in 2021, asserting claims under 42 U.S.C. § 1983. See Walters v. City of New York, No. 1:21-CV-2880, 2022 WL 4031425, at *1 (S.D.N.Y. Sept. 2, 2022) (“Walters I”). The Honorable Gregory H. Woods dismissed the action without prejudice for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure. Id. at *2. Plaintiff thereafter commenced this lawsuit on August 31, 2023, and re-filed the Complaint from his earlier action. He refiled his original complaint in connection with this action on October 31, 2023, alleging violations of his Fourteenth, First, and Eighth Amendment rights. (ECF No. 9.) At the close of discovery, on September 20, 2024, the City moved for summary judgment on Plaintiff's claims.

LEGAL STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, a court shall grant summary judgment when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists,” but “when the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to” an absence of evidence “on an essential element of the nonmovant's claim.” Souza v. Exotic Island Enters., Inc., 68 F.4th 99, 108 (2d Cir. 2023) (citation and quotation marks omitted); see also In re Whole Foods Mkt. Grp., Inc. Overcharging Litig., 397 F. Supp. 3d 406, 419-20 (S.D.N.Y. 2019) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), aff'd sub nom. John v. Whole Foods Mkt. Grp., Inc., 823 F. App'x 46 (2d Cir. 2020).

Once a movant has made its showing, “the non-movant must set forth specific facts showing that there is a genuine issue for trial.” Souza, 68 F.4th at 108 (citation and quotation marks omitted). “Conclusory allegations, conjecture, and speculation ․ are insufficient to create a genuine issue of fact.” Shannon v. N.Y.C. Transit Auth., 332 F.3d 95, 99 (2d Cir. 2003) (citation and quotation marks omitted); see also Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted); Herlihy v. City of New York, 654 F. App'x 40, 43 (2d Cir. 2016). A genuine dispute is present when “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). To receive consideration, the evidence in the record must be admissible at trial. Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001). Finally, the Court must “resolve any doubts and ambiguities and draw all reasonable inferences in favor of the nonmoving party.” Rasmy v. Mariott Int'l, Inc., 952 F3d 379, 386 (2d Cir. 2020).

Under the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, parties to a summary judgment motion are required to each submit a statement of material facts. S.D.N.Y & E.D.N.Y Civ. R. 56.1(a) & (b). The nonmoving party is tasked with responding to each fact asserted by the moving party and each fact that is not specifically denied or controverted may be deemed admitted. Id. at 56.1(c). Pursuant to Local Rule 56.1(d), each statement of material fact and each statement denying or controverting a statement of material fact “must be followed by citation to evidence that would be admissible[.]” Id. at 56.1(d).

Where a plaintiff proceeding pro se does not file a 56.1 statement in opposition to a summary judgment motion, “the Court retains some discretion to consider the substance of the plaintiff's arguments, where actually supported by evidentiary submissions.” Cherry v. Byram Hills Cent. Sch. Dist., No. 11CV3872ER, 2013 WL 2922483, at *1 (S.D.N.Y. June 14, 2013). Courts have held that, in light of the special solicitude afforded to pro se litigants, courts may “conduct an assiduous review of the record” for the purpose of deciding the summary judgment motion. Brown v. City of New York, No. 21CIV4632PGGSLC, 2023 WL 2908661 (S.D.N.Y. Jan. 30, 2023) (citing Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001), abrogated in part on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009)), report and recommendation adopted, 2023 WL 2496089, at *5 (S.D.N.Y. Mar. 14, 2023). Therefore, this Court considers the totality of the parties’ submissions in identifying disputed material facts and construes those disputed facts in Plaintiff's favor as is appropriate on summary judgment. See Vasquez v. Reilly, No. 15CV9528KMK, 2018 WL 2768648, at *1 n.1 (S.D.N.Y. June 8, 2018) (collecting cases). However, where Plaintiff makes factual assertions without citing to evidence, the Court disregards them. See Berry v. Marchinkowski, 137 F. Supp. 3d 495, at *520 (S.D.N.Y. 2015).

DISCUSSION

As an initial matter, the Court notes that the Plaintiff did not include a Response to the City's Rule 56.1 statement of material facts in his summary judgment submissions. Nevertheless, the Court affords special solicitude to Plaintiff, as a pro se litigant, and construes his pleadings and opposition to the instant motion liberally to present the best arguments possible in opposition to the motion. Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010). The City raises two grounds for dismissal: (i) Plaintiff fails to meet the standard to prove deliberate indifference, and (ii) Plaintiff has not stated a claim for municipal liability.²

I. Deliberate Indifference to Conditions of Confinement

A pretrial detainee's claims of deliberate indifference to conditions of confinement and medical care “are evaluated under 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). Nevertheless, their “rights are ‘at least as great as the Eighth Amendment protections available to a convicted prisoner.’ ” Id.; Charles v. Orange Cnty., 925 F.3d 73, 82 (2d Cir. 2019).

Here, the gravamen of the Complaint is that the conditions at Rikers presented a serious risk of threat to Plaintiff contracting COVID-19, which the parties agree he did in fact contract. He does not complain specifically about the medical treatment he received after contracting the virus. “[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 (citing Kingsley v. Henrickson, 576 U.S. 389, 396–99 (2015)). To establish deliberate indifference, a plaintiff must establish both an objective and a subjective prong. Darnell, 849 F.3d at 29. Specifically, the plaintiff must prove (1) “the challenged conditions were sufficiently serious to constitute objective deprivations of the right to due process” (i.e., the objective prong), and (2) “the officer acted with at least deliberate indifference to the challenged conditions” (i.e., the subjective prong). Id. The Court addresses each prong in turn.

A. The Objective Prong

With respect to the objective prong, the detainee must “show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health,” an analysis that “must be evaluated in light of contemporary standards of decency.” Id. at 30; Hayes v. N.Y.C. Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996). To be “sufficiently serious,” “ ‘the alleged deprivation must be ․ a condition of urgency, one that may produce death, degeneration, or extreme pain[,] exists.’ ” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (citing Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).

“[C]orrectional officials have an affirmative obligation to protect” those in their custody from infectious diseases. See Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996); Zeigler v. Annucci, 23-CV-707, 2024 WL 4252682, at *8 (S.D.N.Y. Sept. 20, 2024). “[N]umerous courts have held[ ] protection from COVID-19 falls squarely within the scope of that duty.” Zeigler, 2024 WL 4252682, at *8 (collecting cases).

The City has tendered evidence of its substantial COVID-19 mitigation and response efforts at Rikers and other DOC facilities. See Brown v. City of New York, 21CIV4632PGGSLC, 2023 WL 2908661, at *10 (S.D.N.Y. Jan. 30, 2023) (Cave, M.J.) (recognizing “the decisions of other courts that have evaluated the conditions at DOC facilities and found that DOC ․ ha[s] taken substantial measures to reduce the spread of the virus on Rikers Island, and have had success in doing so”) (citation and internal quotations omitted), report and recommendation adopted, 2023 WL 2496089 (S.D.N.Y. March 14, 2023). The plans were comprehensive and detailed with respect to specific actions taken in DOC facilities. The policies addressed testing and monitoring for symptoms both among staff and incarcerated individuals, reducing the size of the general inmate population to allow for greater distancing and mitigating risk for individuals with underlying medical conditions or of advanced age, isolating incarcerated individuals who tested positive, and implementing masks, vaccines, and social distancing to mitigate the spread of the disease. Moreover, they have shown that Plaintiff received ample testing, had access to personal protective equipment, and went to COVID-19-positive housing only after testing positive for the virus. Plaintiff was transferred out of that housing upon testing negative and exhibiting no symptoms. Thus, the onus is on Plaintiff to demonstrate the genuine existence of a material fact on the issue of whether these policies and procedures were objectively unreasonable to mitigate the risk of harm from the virus.

Plaintiff has not done so. The evidence shows that Plaintiff was generally in good health with no serious underlying health condition. The Centers for Disease Control and Prevention (“CDC”) issued its updated 2021 guidance shortly after the first events giving rise to this action, indicated that individuals with moderate-to-severe asthma would face increased risk of serious illness from contracting COVID-19. See United States v. Jones, 17 F.4th 371, 375 (2d Cir. 2021) (citing the April 7, 2021 update of the CDC's guidance). Although he testified he had asthma, Plaintiff also said that he no longer received regular treatment for it and used an Albuterol inhaler only sparingly, typically once a month and only after strenuous exercise. (ECF No. 39-3, at 20:10-24.) Indeed, Plaintiff fails to suggest that he should have been treated differently due to his asthma. Nor does Plaintiff deny that DOC implemented many risk mitigation measures in conformance with guidance from appropriate public health authorities such as the CDC, New York State Department of Health, and New York City Department of Health. Rather, he argues that “COVID-19 alone[ ] posed a threat to plaintiff's safety.” (ECF No. 41, at 2.) Accordingly, the admissible evidence shows that Plaintiff's asthma was a mild form, and Plaintiff has submitted no evidence to show he required different treatment because of his asthma being more severe. Thus, Plaintiff offers no evidence to show a genuine issue of material fact exists as to whether the measures that DOC and CHS took to mitigate the risk of him contracting COVID-19 were objectively deficient as to him. While the Court acknowledges that COVID-19 posed a health risk, Plaintiff's submissions do not create a genuine issue of material fact as to whether the City's COVID-19 risk mitigation measures were objectively deficient as to Plaintiff.

Plaintiff asks the Court to take judicial notice a variety of news reports to establish that his conditions of confinement were objectively unreasonable. The articles discuss the risk of the spread of COVID-19 within Rikers and among inmates in correctional institutions and that many inmates contracted the virus, some dying from it. The Court can take judicial notice that an article was published, but it cannot take judicial notice of the truth of the facts in the article absent separate evidence supporting those facts. Karol v. City of New York, 396 F. Supp. 3d 309, 318 (S.D.N.Y. 2019). Thus, the facts asserted in these articles are not sufficient in terms of their admissibility to meet Plaintiff's burden to avoid summary judgment in the City's favor.³

Plaintiff also submitted an Executive Order (the “EO”) dated September 28, 2021, issued by New York Governor Kathy Hochul. The EO declared a state of emergency and permitted courts to conduct electronic appearances for arraignments, pleas and sentencings or testimony in a grand jury, and any evidentiary hearing or non-jury trial. (ECF No. 41.) In part, the EO also noted in its “Whereas” clauses that Rikers Island faced “a severe staffing shortage in recent months” resulting in “an unsafe, life-threatening environment.” The EO also noted that an independent federal monitor appointed to oversee Rikers reported a “pervasive level of disorder and chaos” in the facilities. As with the news reports Plaintiff attaches, while these “Whereas” clauses do not paint the conditions of Rikers Island in a favorable light, they also do not enlighten how Plaintiff was impacted by any staffing shortage or “pervasive level of disorder and chaos.” Plaintiff cannot meet his burden to show an issue of material fact by gesturing generally at how bad Rikers Island facilities may have been according to news reports and public officials. Thus, the EO is not sufficient to show the existence of a dispute of fact.

Plaintiff separately argues that the City violated his rights in 2022 ⁴ by housing him in confirmed COVID-19-positive housing when he should not have been there because he did not have COVID-19.⁵ To support this assertion, he attaches a January 12, 2022 test result finding he was negative for COVID-19. Plaintiff claims he was then “housed in 2CB in [Vernon C. Baines Center (“VCBC”)] despite ․ testing negative for COVID[-19].” (ECF No. 41, at 36.) He further attaches a letter from his criminal defense attorney, dated January 14, 2022, which quotes him as telling his lawyer he was housed in “a ‘confirmed COVID housing area’ ” and thus could not appear for a video conference. (ECF No. 41, at 41.)

Viewing these documents in the light most favorable to Plaintiff (and assuming the admissibility of the attorney's letter),⁶ at most these documents show that Plaintiff was in fact housed in VCBC at the time he tested negative and that he has consistently believed that his housing area at VCBC was a COVID-19-positive housing unit in 2022. However, Plaintiff presents no evidence to demonstrate a genuine dispute of material fact, because he has not presented any evidence that VCBC was confirmed COVID-19-positive housing. Indeed, the only record evidence establishes that EMTC was for COVID-19-positive individuals, without mentioning VCBC. (ECF No. 39-4 ¶ 35.) Plaintiff also does not claim he contracted COVID-19 while being housed in VCBC in 2022. Accordingly, no reasonable factfinder could conclude on this evidence that Plaintiff was held in confirmed COVID-19 housing at a time when he should not have been.

Finally, Plaintiff points to his February 22, 2021 complaint to 311 regarding the conditions in EMTC. (ECF No. 41, at 43-45). In that complaint, he stated:

THERE[ ] IS NO SOCIAL DISTANCING OR MANDATED QUARANTINE FOR COVID PATIENT. I WAS IN A COVID POSITIVE HOUSING UNIT AND THEY KEEP MOVING ME. THE OFFICERS DO NOT CARE ABOUT OUR LIVES. I OVERHEARD THEM SAYING FUCK THOSE MOTHERFUCKERS, WHILE THEY WERE MOVING ME FROM ONE COVID UNIT TO ANOTHER. THEY LOST MY BELONGINGS I DO NOT HAVE ANYTHING NOW. I WAS DENIED THE RIGHT TO CLEAN MY SPACE. THE CAPTAIN AND ANOTHER OFFICER TREATS ME BADLY. THEY SAID THEY WILL WRITE AN ASSAULT CHARGE.

(Id.) The complaint was marked resolved as of February 24, 2021, at 1:25 p.m. The 311 record indicates “No resolution found.” As with the attorney letter, this evidence, at best, shows that Plaintiff consistently believed his rights were being violated. However, this is not sufficient to demonstrate the existence of a genuine dispute of fact as to whether DOC's COVID-19 risk mitigation protocols were objectively unreasonable. To be sure, the mitigation protocols did not prevent all inmates from contracting COVID-19 and did not prevent Plaintiff from contracting it, but this fact in and of itself does not mean that DOC was deliberately indifferent to the health risks posed to inmates at Rikers or that the steps it took to prevent the spread of COVID were objectively unreasonable.

Thus, Plaintiff has failed to make a showing of any disputed fact under the objective prong.

B. The Subjective Prong

To satisfy the subjective prong, a plaintiff must show that a correctional official possessed “a ‘sufficiently culpable state of mind’ ” in order to violate a plaintiff's constitutional rights. Farmer, 511 U.S. at 834. In cases involving the conditions of confinement, this state of mind is “one of ‘deliberate indifference’ to inmate health or safety.” Id. A pretrial detainee must show “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. This mens rea requirement is consistent with “recklessness as used in the criminal law.” Farmer, 511 U.S. at 839-40. Thus, mere negligence is insufficient. Id. at 835; Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013).

Plaintiff has not shown a dispute of fact as to the subjective prong. To start, he does not point to a specific official whose state of mind is at issue. Rather, he points to his negative January 2022 COVID-19 test. But this evidence does not show how any officer had a culpable state of mind or acted intentionally or recklessly, since it cannot be determined with reference to the record that Plaintiff was, in fact, held in COVID-19-positive housing when he should not have been. Further, while the Plaintiff's 311 complaint makes note of corrections officers using vulgar language, it does not demonstrate to whom or about what they were speaking.⁷ The record is thus devoid of any evidence that any corrections officer intentionally or recklessly created the alleged conditions of Plaintiff's confinement. As such, the Plaintiff has not established a genuine issue of material fact as to the subjective prong of the deliberate indifference test.

II. Municipal Liability

Plaintiff does not name any individual as a defendant in this case. Rather, his claims are all premised on a theory of municipal liability under Monell v. Department of Social Services, 436 U.S. 658 (1978), and its progeny. To plead a claim for municipal liability based on the actions of City employees, a plaintiff must allege: “(1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007). “Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011). Municipal liability “requires more than isolated incidents to subject the City to liability.” Escobar v. City of New York, 766 F. Supp. 2d 415, 420 (E.D.N.Y. 2011). “[A] custom or policy cannot be shown by pointing to a single instance of unconstitutional conduct by a mere employee ․” DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) (citation omitted).

Here, Plaintiff does not allege the existence of an unconstitutional policy or custom of retaliation or deliberate indifference to the risk of COVID-19 infection—including, for the avoidance of doubt, any policy that potentially would have violated his First or Fourteenth Amendment rights. And, given the record is replete with DOC's and CHS's robust policies regarding COVID-19 management in their facilities, Plaintiff likely cannot do so. While the claims can be construed to assert a persistent and widespread practice by DOC employees in contravention of established COVID-19 risk mitigation procedures, Plaintiff does not explain with any degree of particularity what guidelines were violated, let alone how, when, or by whom. Rather, he makes only conclusory allegations that because he got COVID-19 while he was incarcerated, the City therefore must be liable. While the Court is sympathetic to Plaintiff's reasonable concern over a deadly virus, he has not shown that he is entitled to a trial on his claims. As such, the motion should be granted in favor of the City.

CONCLUSION

For the foregoing reasons, I recommend that Defendant's motion for summary judgment be granted and Plaintiff's claims dismissed, with judgment entered in favor of the City. The Clerk of the Court is respectfully directed to mail a copy of this Report to the Plaintiff.

NOTICE

Plaintiff shall have seventeen days and Defendant shall have fourteen days from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days only when service is made under Fed. R. Civ. P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). A party may respond to another party's objections after being served with a copy. Fed. R. Civ. P.72(b)(2).

Plaintiff shall have seventeen days to serve and file any response. Defendant shall have fourteen days to serve and file any response. Any objections and any responses to such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres at the United States Courthouse, 40 Foley Square, New York, New York 10007, and served on the other parties. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Torres. The failure to file timely objections shall result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).

FOOTNOTES

2.   In their reply brief, Defendant withdrew their argument that Plaintiff failed to exhaust administrative remedies. Accordingly, I do not address this argument, which was raised in the moving brief.

3.   The Court further notes that, even if it could consider the underlying facts of these news reports, they would not be sufficient to meet Plaintiff's burden to show a dispute of fact. The news reports relate generally to concerns over Rikers Island facilities during the COVID-19 pandemic. While these reports do not paint the conditions of confinement on Rikers in a favorable light, they also contain no information about the particular facility or facilities where Plaintiff was housed, and they do not contain any information about Plaintiff's confinement. Moreover, several of these reports mention details about the City's plan to protect incarcerated individuals from COVID-19 in these facilities, which could potentially help Defendant (since Defendant has submitted evidence corroborating this information). Thus, the news reports do not assist in avoiding summary judgment.

4.   The facts underlying this assertion do not appear in either of Plaintiff's complaints. (ECF Nos. 1; 9.) The Court nevertheless considers these facts as a matter of special solicitude afforded to the pro se Plaintiff.

5.   Plaintiff raises this point in connection with the subjective standard. Consistent with how the Court has organized opinion, and consistent with the special solicitude afforded to pro se litigants, it will separately address any potential inferences Plaintiff wants the Court to draw from this argument about the corrections officers’ state of mind in its analysis of the subjective prong, but will separately analyze this same assertion for any implications under the objective prong.

6.   The Court notes, for the record, there is a strong possibility that the admissibility of the attorney's letter would be challenged at trial. Plaintiff wants the Court to consider this evidence for the truth of Plaintiff's statement as he was quoted in a letter written by his attorney. This letter therefore presents double hearsay, and each level of hearsay must be independently subject to an exception to the general rule against hearsay to be admissible. See Fed. R. Evid. 805; Rodriguez v. Modern Handling Equipment of NJ, Inc., 604 F. Supp. 2d 612 (S.D.N.Y. 2009). While the Court does not decide that issue on this motion, the admissibility of this evidence is far from given.

7.   The Court assumes, in plaintiff's favor and solely for the sake of argument, the admissibility of the letter to prove an officer's state of mind or motivation. However, like the attorney letter, this evidence also could be challenged as double hearsay. See infra, n.6.

KATHARINE H. PARKER United States Magistrate Judge