The opinion of the court was delivered by: JOHN T. ELFVIN, Senior District Judge
This action was commenced on July 19, 2004 by inmates*fn2
of Monroe County Jail who allege that the existence of one
condition at the Jail specifically the lack of water from sinks
in their cells from 9:45 p.m. to 7:30 a.m. for a period of over
four months constituted cruel and unusual punishment.
Plaintiffs, proceeding pro se, contend that the existence of
the condition and defendants' failure to remedy the condition
violated their rights to be free from cruel and unusual
punishment and their right to be protected by defendants.
Defendants filed an Answer on December 10, 2004 and an Amended
Answer on December 29, 2004. The matter was referred to United States Magistrate Judge
Hugh B. Scott on December 13, 2004 for the purposes of
supervising discovery and other pre-trial matters.
On January 4, 2005 Judge Scott invited defendants to move for
summary judgment pursuant to the Prisoner Litigation Reform Act,
42 U.S.C. § 1997e et seq., on the basis of plaintiffs' failure
to exhaust their administrative remedies. Defendants declined to
do so, citing disputed issues of material fact.*fn3
Thereafter, sua sponte, Judge Scott on February 1, 2005 issued
a Report and Recommendation (the "R&R") concluding that the
Complaint failed to state a claim for relief and should be
dismissed pursuant to 42 U.S.C. § 1997e(c). On February 7, 2005
plaintiff Mosley filed objections to the R&R arguing that
plaintiffs had sufficiently exhausted their administrative
remedies by filing a written grievance albeit not on a
grievance form as such addressed to defendant Maldonado and by
orally complaining to various corrections officers. See Mosley
Objections at 1-2. Mosley also argues that the corrections
officers to whom the inmates complained told them that the
condition was not grievable and that the "water situation would
be resolved." Id. at p. 1. On February 22, 2005 plaintiff James
filed a document styled a "response" to the R&R, which document
in fact sets forth objections to the R&R.*fn4 In the objections, James contends generally
that the lack of water from his sink is unconstitutional.
Defendants' response thereto filed on March 11, 2005 indicated
defendants' agreement with the R&R and did not address
plaintiffs' objections. The objections were deemed submitted on
the papers without argument on April 11, 2005.
In reviewing an R&R, the Court may "accept, reject, or modify,
in whole or in part, the findings or recommendations made by the
magistrate." 28 U.S.C. § 636(b)(1)(C). The district court reviews
de novo the portions of an R&R to which specific objections
have been filed. See 28 U.S.C. § 636(b)(1)(A). Where a party
files only general or conclusory objections, the court reviews
the R&R for clear error. See Martinez v. Senkowski, 2000 WL
888031, at *3-*4 (N.D.N.Y. 2000); Brown v. Peters, 1997 WL
599355, at *2-*3 (N.D.N.Y. 1997), aff'd without op.,
175 F.3d 1007 (2d Cir. 1999) (stating that where only general objections
are made to an R&R, court need only review for clear error). If a
party fails to object to a portion of an R&R, further review is
generally precluded. See Mario v. P&C Food Mkts. Inc.,
313 F.3d 758, 766 (2d Cir. 2000) (citing Small v. Sec'y of Health
& Human Servs., 892 F.2d 15, 16 (2d Cir. 1989)). Here, Mosley's
objections are not relevant to the basis on which the Magistrate Judge recommended
that the Complaint be dismissed. James argues only in a general
and conclusory fashion that a Constitutional violation has
occurred. As no specific objections have been filed, the Court
reviews the R&R for clear error.*fn5
"The task of the court in ruling on a motion to dismiss under
Rule 12(b)(6) of the Federal Rules of Civil Procedure is merely
to assess the legal feasibility of the complaint, not to assay
the weight of the evidence which might be offered in support
thereof." Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998)
(internal citation and quotation omitted). On a motion to
dismiss, the Court should accept all factual allegations in the
complaint as true, and draw all inferences in favor of the
non-moving party. See Courtenay Communications Corp. v. Hall,
334 F.3d 210, 213 (2d Cir. 2003); see also Patel v.
Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d
Cir. 1999). "The court will not dismiss the case unless it is
satisfied that the complaint cannot state any set of facts that
would entitle [the plaintiff] to relief." Patel, at 126.
The factual allegations of the Complaint in their entirety are
"First Claim: On 4-1-04 7-14-04 defendant Maldonado
Superintendent at Monroe County Jail did the
following to me: Failed to fix the sinks inside
inmates[`] cells on the second floor. Numerous
complaints were made to the ["]floor corporals["]
about the broken sinks. Inmates are in a dry
environment with no water supply from 9:45 p.m. until
7:30 a.m. This issue was grieved directly to Supt. Maldonado on 6-7-04. He failed to
acknowledge the grievance and did not respond.
Inmates still do not have water.
"The constitutional basis for this claim under
42 U.S.C. § 1983 is: prison conditions/cruel and
unusual punishment; failure to protect."
Compl. at 8. Assuming the truth of plaintiffs' allegations, the
condition complained of is limited to the lack of running water
from inmate cell sinks on the second floor between the hours of
9:45 p.m. and 7:30 a.m.
As a preliminary matter, the Magistrate Judge concluded that
plaintiffs failed to state a claim for violation of their Eighth
Amendment rights because the Eighth Amendment applies only to
convicted inmates and plaintiffs are pre-trial detainees. See
R&R, at 3. Instead, the Magistrate Judge analyzed plaintiffs'
claims under the Due Process Clause of the Fourteenth Amendment.
The Magistrate Judge is correct in that the Eighth Amendment's
prohibition of cruel and unusual punishment applies only to those
convicted of an offense and thus subject to punishment. See City
of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244
(1983). However, his conclusion that the Eighth Amendment is
inapplicable to plaintiffs is based on the faulty assumption that
all plaintiffs are pre-trial detainees. The Complaint is silent
as to plaintiffs' pre-trial or post-conviction status and the
Court will not presume their status to be that of pre-trial detainees based on their failure to allege otherwise. Moreover,
the distinction is unnecessary in light of the fact that
plaintiffs fail to state a claim under either the Eighth or
In order to constitute a violation of the Eighth Amendment's
prohibition of cruel and unusual punishment, the condition
complained of must constitute "an unnecessary and wanton
infliction of pain" or be "repugnant to the conscience of
mankind." Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). In
other words, the condition must constitute a denial of the
"minimal civilized measure of life's necessities." Farmer v.
Brennan, 511 U.S. 825, 834 (1994) (internal citation and
quotation omitted). In addition, plaintiffs must allege facts
demonstrating that the person responsible for the conditions
acted with deliberate indifference. See ibid. Such deliberate
indifference exists if the prison official "knows of and
disregards an excessive risk to inmate health or safety."
Farmer, at 837.
The Due Process Clause of the Fourteenth Amendment, on the
other hand, protects pre-trial detainees from any form of
"punishment." Bell v. Wolfish, 441 U.S. 535, 520 (1979)
("[T]he proper inquiry [under the Fourteenth Amendment] is
whether those conditions or restrictions amount to punishment of
the detainee."). As a result, the protections afforded to
pre-trial detainees under the Fourteenth Amendment are at least as great as those afforded to convicted
inmates under the Eighth Amendment. See Bryant v. Maffucci,
923 F. 2d 979, 983 (2d Cir. 1991); McFadden v. Solfaro, 1998
WL 199923 (S.D.N.Y. 1998).
Lack of access to running water, by itself, does not constitute
the denial of the minimal civilized measure of life's
necessities. See Johnson v. Comm'r of Corral. Servs.,
699 F. Supp. 1071, 1074 (S.D.N.Y. 1988) (plaintiff confined for one week
in a cell with an inoperable sink did not suffer a Constitutional
violation because he was provided drinks with meals); see also
Castro v. Chesney, 1998 WL 767467, at *4 (E.D. Pa. 1996) (no
Constitutional violation where plaintiff placed in a "dry cell"
without running water for several days, given water "sometimes"
when he asked for it and water was turned on every other day so
he could wash his face and brush his teeth); Broomfield v.
Allen County Jail, 2005 WL 1174123, at *2 (N.D. Ind. 2005) (no
Constitutional violation where pretrial detainee was deprived of
running water to wash his face or brush his teeth for six days
because he was not denied water altogether); Calhoun v.
Wagner, 1997 WL 400043, at *4 (E.D. Pa. 1997) (pretrial
detainee deprived of running water for 61 hours did not suffer a
Constitutional violation because he was provided with fluids
three times daily).
Here, plaintiffs allege only that they lacked access to running
water from their cell sinks for several hours during the night.
There is no allegation that they lacked all access to water
during the night, or that they lacked access to water at any time during the day, or that they lacked toilet facilities
during the day or during these night-time hours. There is no
allegation that they lacked adequate showering opportunities or
other means of maintaining personal hygiene. Finally, there is no
allegation that defendants deliberately deprived them of water,
and no allegation that they suffered any harm other than
The Court therefore concludes that plaintiffs' allegations, and
all reasonable inferences that may be drawn in their favor, fail
to state a claim for violation of either the Eighth or Fourteenth
Accordingly, it is hereby ORDERED that plaintiffs' Complaint
is therefore dismissed without prejudice and, in light of the
plaintiffs' pro se status and the sua sponte nature of the
dismissal, plaintiffs' are granted ...