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Ross v. City of New York

United States District Court, S.D. New York

August 4, 2014

KAZMEL ROSS, Plaintiff,


LORNA G. SCHOFIELD, District Judge.

Plaintiff Kazmel Ross brought this action against Defendants Paul Mullings, Annette Hill, Antonio Cuin, Cynthia Johnson and the City of New York, alleging that they acted with deliberate indifference to Plaintiff's safety in violation of his Eighth and Fourteenth Amendment rights and state law. Defendants move for summary judgment. For the reasons stated below, Defendants' Motion for Summary Judgment is granted in part and denied in part.


I. Facts

The following facts are taken from the parties' Rule 56.1 Statements and other submissions filed in connection with this summary judgment motion. All factual disputes are resolved, and all justifiable inferences are drawn, in Plaintiff's favor.

On July 27, 2012, Plaintiff was arrested on a misdemeanor charge and placed into the custody of the New York City Department of Correction ("DOC") at the Vernon C. Bain Correctional Facility ("VCBC"). On July 30, 2012, Plaintiff was placed into "3CB, " a maximum security cellblock, which was known to be populated by gang members.

On July 30, 2012, Plaintiff spoke with Defendant Johnson, a social worker for Correctional Health Services, and requested a transfer to "C-71, " a mental health unit on Rikers Island. Plaintiff testified that he had requested a transfer for his safety and because he knew "violence was at zero" there. Ross also told Johnson that he "wanted to avoid getting into any trouble, " which he described as "regular prison nonsense, " and that he "wanted to be in C-71where I feel there's no violence and I can be safe." Johnson denied the transfer request because Plaintiff did not meet the mental health requirements to be placed in C-71. Johnson advised Plaintiff that any safety concerns needed to be raised with the security captain on the Corrections staff and not the Health staff. Johnson submitted a mental health report to her supervisor denying the request.

The next day, on July 31, 2012, at approximately 12:15 P.M., while Plaintiff was sitting in the 3CB day room after lunch, Plaintiff was attacked by five inmates and slashed on the face. Plaintiff sustained a six-inch laceration, requiring 50 stitches and resulting in a scar from Plaintiff's right ear to his chin. Plaintiff has never been a member of any gang, and the attack was not gang related. Plaintiff did not know his assailants.

At the time of the slashing, Correction Officer Mullings was the sole guard assigned to the post within 3CB. Although he was on duty, he was not inside the 3CB cellblock, in violation of DOC policy. Mullings testified that he was not allowed to leave the cellblock, even temporarily to use the restroom, without arranging for a relief officer to take his place. Mullings left his post, which was about twelve feet away from where the slashing occurred, approximately five to ten minutes before the slashing. Mullings was not in the cellblock at the time of the attack, because he had walked to the "bubble, " a command center outside the cellblock, to report a broken key needed to open cells. Mullings testified that he had broken the key while trying to turn it in the lock. The key was necessary because the system for electronically opening and closing cells had not been working for several years. Defendant Mullings admitted that "everyone knows that it should be... working." According to Mullings, the attack was not a fight, but inmates in 3CB did "tend to fight... whenever they feel like it, " and that "anything happens."

Correction Officer Hill, who was stationed in the bubble, wrote the work order for a key replacement and noted the time of Mullings's report of the broken key as 12:00 P.M., approximately fifteen minutes before the recorded time of the slashing. After the attack, Plaintiff went to the 3CB cellblock door and banged on it. Defendant Hill let Plaintiff out of the cellblock and into the vestibule in the bubble area, then immediately called for help and came out of the bubble to attend to Plaintiff.

Plaintiff was treated both at VCBC's clinic and later at Lincoln Hospital. While there, he was interviewed by the DOC Intelligence Unit and identified his assailants from photo arrays. The assailants, who were known gang members, were placed into punitive segregation. Plaintiff was placed into protective custody for the remainder of his stay at VCBC.

There are no DOC records of any searches of Plaintiff's cellblock for inmate weapons during July 2012, the month of the assault, nor for any of the prior six months except for March. Warden Cuin was responsible for the failure to carry out the cellblock searches. As Warden, Defendant Cuin also was responsible for the failure to repair the electronic cell locking system.

According to VCBC records, the attack on Plaintiff was the only slashing incident that took place at VCBC during at least five months before the incident. Plaintiff challenges the reliability of these records based on DOC's "shoddy record-keeping." Defendant Mullings testified that in his 17-year DOC career, he had never personally observed a similar slashing, and Defendant Hill testified that in her 14-year DOC career she had never seen this type of attack.


The standard for summary judgment is well established. Summary judgment is appropriate where the record before the Court establishes that 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). A genuine dispute as to a material fact exists "if 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). The Court must construe the evidence in the light most favorable to the nonmoving party and must draw all reasonable inferences in the nonmoving party's favor. See Id. at 255.


I. Deliberate Indifference Claims against Individual Defendants

Plaintiff's First Claim for Relief seeks damages under 42 U.S.C. ยง 1983, the Eighth and Fourteenth Amendments to the U.S. Constitution, and Article I of the New York State Constitution for Defendants' alleged deliberate indifference to Plaintiff's safety while he was in pre-trial detention. Because Plaintiff proffers sufficient evidence from which a reasonable jury could find that Plaintiff was subjected to conditions that posed a "substantial risk of serious harm" and that Defendant Mullings was aware of the risk and failed to take reasonable steps to abate it, Defendants' motion for summary judgment on the claim is denied as to Defendant Mullings. However, the evidence is insufficient for a reasonable jury to conclude that Defendants Cuin, Hill and Johnson were aware of the risk and failed to take reasonable steps in light of that knowledge.

A. Standard

Claims involving the conditions of pre-trial detention are properly analyzed under the Due Process Clause of the Fourteenth Amendment rather than the Eighth Amendment. Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979). However, claims for deliberate indifference to a "serious threat to the health or safety of a person in custody" - whether a pre-trial detainee or a sentenced inmate - are analyzed "under the same standard irrespective of whether they are brought under the Eighth or Fourteenth Amendment." Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009).

The Eighth Amendment imposes a duty on prison officials "to provide humane conditions of confinement, " Woodford v. Ngo, 548 U.S. 81, 118 (2006), and to "take reasonable measures to guarantee the safety of [the] inmates in their custody, " Hayes v. N.Y. City Dep't. of Corr., 84 F.3d 614, 620 (2d. Cir 1996) (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)). It also imposes on prison officials "a duty... to protect prisoners from violence at the hands of other prisoners." Farmer, 511 U.S. at 833; Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997). However, not "every injury suffered by one prisoner at the hands of another... translates into constitutional liability for prison officials" at a facility. Farmer, 511 U.S. at 834. A constitutional violation occurs only when a prison official purposefully subjects a prisoner to a "substantial risk of serious harm" or when the official acts or fails to act with "deliberate indifference" to the risk. Farmer, 511 U.S. at 834. "[M]ere negligence will not suffice." Hayes, 84 F.3d at 620.

A claim of deliberate indifference has both an objective and a subjective element. Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). For the objective test, a "plaintiff must demonstrate that he is incarcerated under conditions posing a substantial risk of serious harm." Hayes, 84 F.3d at 620. For the subjective test, a "plaintiff must demonstrate that the ...

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