15-2870
Darnell v. City of New York


                              UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT
                              ____________________________________

                                       August Term, 2016

    Argued:         September 22, 2016                Decided: February 21, 2017

                                       Docket No. 15-2870
                              ____________________________________

   KEVIN DARNELL, GERMAIN CANO, MICHAEL GLENN, MICHAEL MCGHEE, KERRY SCOTT,
TRAVIS GORDAN, GREGORY MAUGERI, DMITRIY MILOSLAVSKIY, STEVEN MODES, JACQUELINE
 GUARINO, MICHAEL SPALANGO, WESLEY JONES, RAYMOND TUCKER, YVONNE MING, NANCY
 VIGLIONE, KEITH JENNINGS, ELLI VIKKI, INDIVIDUALLY AND ON BEHALF OF A CLASS OF
     ALL OTHERS SIMILARLY SITUATED, ERIC CEPHUS, PHILLIP SINGLETON, DEBORAH
                                    GONZALEZ,

                                    Plaintiffs – Appellants,

                   Nakaita Moore, Jahmel Lawyer, Peter Eppel,

                                                       Plaintiffs,

                                              —v.—

       RAFAEL PINEIRO, WILLIAM TOBIN, CITY       OF   NEW YORK, KENNETH KOBETITSCH,

                                    Defendants – Appellees,

  Deputy Commissioners John Does, 1-5, (representing the Deputy
 Commissioners who supervised the operation of Brooklyn Central
Booking from June 12, 2010 to the present), Police Officers John
   Does, 1-5, (representing the commanding officers of Brooklyn
    Central Booking from June 12, 2010 to the present), Police
                    Commissioner Raymond Kelly,

                                          Defendants.†
                              ___________________________________




†
  The Clerk of Court is respectfully requested to amend the
caption to conform to the above.
        Before: LEVAL   AND   LOHIER, Circuit Judges, and KOELTL, District
                                         Judge.*

 1        Twenty state pretrial detainees brought individual § 1983

 2   claims in the same complaint alleging that the City of New York

 3   and the supervisory officers of a pre-arraignment holding

 4   facility (collectively, “the defendants”) were deliberately

 5   indifferent to allegedly unconstitutional conditions of

 6   confinement at the holding facility. The United States District

 7   Court for the Eastern District of New York (Kuntz, J.) granted

 8   summary judgment in favor of the defendants, denied the

 9   detainees’ motion to reconsider that judgment, and denied a

10   subsequent motion to reconsider the denial of the motion for

11   reconsideration. The detainees appealed.

12        The detainees concede that certain claims were properly

13   dismissed. As to those claims, we affirm the District Court’s

14   judgment. However, because there were genuine disputes as to

15   material facts with respect to the challenged conditions of

16   confinement, the individual defendants’ knowledge of those

17   conditions, and the failure to remedy those conditions, as well

18   as to the liability of the City of New York, we vacate the

19   judgment as to the remaining claims that were dismissed and

20   remand for further proceedings.




     * Judge John G. Koeltl, of the United States District Court for
     the Southern District of New York, sitting by designation.
                                           2
 1   ______________

 2   SCOTT A. KORENBAUM (Stephen Bergstein, on the brief), Bergstein
 3   & Ullrich, LLP, Chester, NY, for Plaintiffs-Appellants.
 4
 5   ZACHARY W. CARTER, (Richard Dearing, Devin Slack, Kathy Chang
 6   Park, on the brief), Corporation Counsel of the City of New
 7   York, New York, NY, for Defendants-Appellees.
 8   ______________

 9   John G. Koeltl, District Judge:

10        This is a case about unconstitutional conditions of

11   confinement for pretrial detainees. Twenty state pretrial

12   detainees (“the plaintiffs”)1 arrested on separate dates between

13   July 10, 2011, and July 23, 2013, brought individual § 1983

14   claims in the same complaint against the City of New York (the

15   “City”), New York City Police Department (“NYPD”) Captain

16   Kenneth Kobetitsch, and NYPD Captain William Tobin (the

17   “individual defendants”) (collectively, “the defendants”).2 The



     1
       The plaintiffs are Kevin Darnell, Germain Cano, Michael Glenn,
     Michael McGhee, Kerry Scott, Travis Gordan, Gregory Maugeri,
     Dmitriy Miloslavskiy, Steven Modes, Jacqueline Guarino, Michael
     Spalango, Wesley Jones, Raymond Tucker, Yvonne Ming, Nancy
     Viglione, Keith Jennings, Elli Vikki, Eric Cephus, Phillip
     Singleton, and Deborah Gonzalez. Three additional plaintiffs
     initially brought claims against the defendants, but, prior to
     this appeal, two voluntarily dismissed their claims without
     prejudice, and one passed away.
     2
       The John Doe defendants named in the original complaint are no
     longer parties to this action because the plaintiffs did not
     pursue claims against them in the amended complaints. During the
     proceedings before the District Court, the plaintiffs
     voluntarily dismissed with prejudice the claims against former
     NYPD Commissioner Raymond Kelly. By letter dated September 22,
     2016, the plaintiffs abandoned the appeal of the judgment
     dismissing their claims against Raphael Pineiro, the former
                                       3
 1   plaintiffs alleged that they were each subjected to appalling

 2   conditions of confinement while held pre-arraignment at Brooklyn

 3   Central Booking (“BCB”) with deliberate indifference to the

 4   deprivation of their Fourteenth Amendment due process rights.

 5   Because BCB was only a pre-arraignment holding facility, no

 6   plaintiff was held at BCB for more than twenty-four hours.

 7        The United States District Court for the Eastern District

 8   of New York (Kuntz, J.) granted summary judgment to the

 9   defendants, reasoning that the plaintiffs failed to meet both

10   the objective and subjective requirements for a claim of

11   unconstitutional conditions of confinement based on a theory of

12   deliberate indifference. The District Court concluded that, with

13   respect to the “objective prong,” no plaintiff could establish

14   an objectively substantial deprivation of any constitutional

15   rights because no plaintiff actually suffered a serious injury,

16   or was “regularly denied his or her basic human needs or was

17   exposed to conditions that posed an unreasonable risk of serious

18   damage to his or her future health” for more than twenty-four

19   hours; nor could any plaintiff establish the “subjective prong”

20   of a deliberate indifference claim by proving that the

21   individual defendants were actually aware of any dangerous

22   conditions, or that the individual defendants acted unreasonably



     First Deputy Commissioner of the NYPD. The judgment dismissing
     the claims against Mr. Pineiro is accordingly affirmed.
                                     4
 1   in responding to any such conditions; nor, for similar reasons,

 2   could the plaintiffs establish that the individual defendants

 3   acted with punitive intent. See Cano v. City of New York, 

  Supp. 3d 65, 74, 82, 85-86 (E.D.N.Y. 2015). Because no plaintiff

 5   could prove a constitutional deprivation, the District Court

 6   also held that the individual defendants were entitled to

 7   qualified immunity, and that the plaintiffs could not establish

 8   that the City was liable pursuant to Monell v. Dep’t of Soc.

 9   Servs. of City of New York, 

, 690–91 (1978). See

10   

.

11        The District Court issued its opinion shortly after the

12   Supreme Court’s decision in Kingsley v. Hendrickson, 

  2466 (2015), in which the Supreme Court held that, for excessive

14   force claims brought under the Due Process Clause of the

15   Fourteenth Amendment, “a pretrial detainee must show only that

16   the force purposely or knowingly used against him was

17   objectively unreasonable.” 

The Court rejected the

18   requirement that, for such claims, a pretrial detainee establish

19   a state of mind component to the effect that the official

20   applied the force against the pretrial detainee “maliciously and

21   sadistically to cause harm.” 

(citation omitted). The

22   District Court’s opinion was also issued two weeks before this

23   Court’s decision in Willey v. Kirkpatrick, 

, 66-68

24   (2d Cir. 2015), in which this Court held that while the proper

                                       5
 1   inquiry for a conditions of confinement claim is by reference to

 2   the duration and severity of the conditions, the claim did not

 3   require a “minimum duration” or “minimum severity” to reach the

 4   level of a constitutional violation. This Court further made

 5   clear that a “serious injury is unequivocally not a necessary

 6   element of an Eighth Amendment [conditions of confinement]

 7   claim.” 

 8        The District Court did not analyze the implications of

 9   Kingsley in its opinion. Moreover, the District Court denied the

10   plaintiffs’ motion for reconsideration based on Willey, as well

11   as the plaintiffs’ later motion for reconsideration of the order

12   denying the first motion for reconsideration, because the

13   District Court found that the plaintiffs’ appeal of the summary

14   judgment order divested it of jurisdiction over the case.

15        Among other issues, this case requires us to consider

16   whether, consistent with Willey, and the precedents on which it

17   is based, appalling conditions of confinement cannot rise to an

18   objective violation of the Fourteenth Amendment’s Due Process

19   Clause so long as the detainee is subjected to those conditions

20   for no more than twenty-four hours, and the detainee does not

21   suffer an actual, serious injury during that time. This case

22   also requires us to consider whether Kingsley altered the




                                     6
 1   standard for conditions of confinement claims under the

2    Fourteenth Amendment’s Due Process Clause.3

3         For the reasons explained below, we affirm in part, and

4    vacate in part, the District Court’s judgment, and remand the

5    case to the District Court for further proceedings.

6                                   I.

7         In reviewing the District Court’s grant of summary judgment

8    in favor of the defendants, “we construe the evidence in the

9    light most favorable to the Plaintiffs, drawing all reasonable

10   inferences and resolving all ambiguities in their favor.” CILP

11   Assocs., L.P. v. PriceWaterhouse Coopers LLP, 

, 118

12   (2d Cir. 2013) (citation and internal quotation marks omitted).

13   We affirm the grant of summary judgment only where “there is no

14   genuine dispute as to any material fact and the movant is

15   entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

16   Our review is de novo. Ruggiero v. County of Orange, 

  170, 173 (2d Cir. 2006).


     3
       This case implicates the Due Process Clause of the Fourteenth
     Amendment because it involves state pretrial detainees who are
     seeking to vindicate their constitutional rights. See, e.g.,
     Benjamin v. Fraser, 

, 49 (2d Cir. 2003), overruled on
     other grounds by Caiozzo v. Koreman, 

, 70 (2d Cir.
     2009). However, the analysis in this decision should be equally
     applicable to claims brought by federal pretrial detainees
     pursuant to the Due Process Clause of the Fifth Amendment. See
     Malinski v. New York, 

, 415 (1945) (Frankfurter, J.,
     concurring) (“To suppose that ‘due process of law’ meant one
     thing in the Fifth Amendment and another in the Fourteenth is
     too frivolous to require elaborate rejection.”).
                                     7
 

       This is a lawsuit on behalf of twenty individual plaintiffs

 3   rather than a class action. As such, this is a review of a

 4   judgment dismissing the separate claims of twenty plaintiffs

 5   that were filed in a single complaint.

 6        In its analysis, the District Court did not perform

 7   individualized assessments of each plaintiff’s claims, reasoning

 8   instead that, because no plaintiff’s confinement at BCB exceeded

 9   twenty-four hours, and no plaintiff suffered an actual, serious

10   physical injury, no plaintiff could establish a violation. As

11   discussed below, the District Courted erred in its analysis.

12   Although the evidence differed with respect to the conditions

13   that each plaintiff was subjected to, we summarize the facts in

14   the light most favorable to the plaintiffs as a group to explain

15   the error in the District Court’s grant of summary judgment

16   dismissing the Second Amended Complaint. On remand, however, it

17   will be necessary for the District Court to analyze each

18   plaintiff’s claims, both with respect to the conditions of

19   confinement experienced by each plaintiff, and the personal

20   involvement of the individual defendants with respect to the

21   claims of each plaintiff.




                                     8
 

                                 (i)

 3        During the relevant period, BCB was a temporary holding

 4   facility located at 275 Atlantic Avenue, Brooklyn, New York,

 5   that held recently arrested pretrial detainees awaiting

 6   arraignment. BCB has since been relocated to a different

 7   facility in Brooklyn. The facility at issue in this dispute is

 8   no longer used to hold pretrial detainees.4

 9        Individual defendant Captain Kenneth Kobetitsch was the

10   commanding officer at BCB through July 2011, and his tenure only

11   overlapped with the detention of plaintiff Glenn.5 Thereafter,

12   beginning on August 29, 2011, individual defendant Captain

13   William Tobin became BCB’s commanding officer, a position he

14   still holds, and his tenure overlapped with the detention of the

15   other plaintiffs. During their respective tenures, Captain

16   Kobetitsch and Captain Tobin supervised the officers and the

17   staff at BCB. Captain Kobetitsch and Captain Tobin toured and



     4
       The plaintiffs initially brought claims against the defendants
     seeking compensatory damages and injunctive relief, but, in
     proceedings before the District Court, the plaintiffs abandoned
     the request for injunctive relief.
     5
       By letter dated September 22, 2016, the plaintiffs abandoned
     their claims against Captain Kobetitsch, except as to plaintiff
     Glenn, because Captain Kobetitsch was the commanding officer of
     BCB only at the time plaintiff Glenn was detained there. The
     judgment dismissing the claims against Captain Kobetitsch---with
     the exception of plaintiff Glenn’s claims against Captain
     Kobetitsch---is accordingly affirmed.
                                     9
 1   inspected BCB daily, including its holding cells. Captain Tobin

 2   testified that he monitored BCB for “cleanliness.”

 3        BCB had eight holding cells, six designated for use by men

 4   and two by women. Subordinate officers guarded detainees and

 5   also purportedly received “training and instructions with

 6   respect to, among other things, transferring detainees between

 7   cells, ensuring that there [was] an appropriate number of

 8   detainees in individual cells, so as to avoid overcrowding,

 9   handling and providing food and beverages to detainees, proper

10   sanitation procedures, and the proper method for handling and

11   disposing of human excrement.”

12                                    (ii)

13        On separate dates between July 10, 2011, and July 23, 2013,

14   each plaintiff was arrested and detained in holding cells at

15   BCB.6 Because BCB is a temporary holding facility, each plaintiff

16   was held in custody at BCB from between ten to twenty-four

17   hours. While detained at BCB during the two-year period, each

18   plaintiff was allegedly subjected to one or more degrading

19   conditions of confinement that purportedly constitute nine types

20   of constitutional deprivations: (1) Overcrowding; (2) Unusable

21   Toilets; (3) Garbage and Inadequate Sanitation; (4) Infestation;

     6
       With the exception of plaintiffs Spalango and Tucker, who were
     each detained at BCB on March 13, 2013, and plaintiffs Jennings
     and Singleton, who were each detained at BCB on July 23, 2013,
     the plaintiffs’ confinements at BCB did not overlap with each
     other.
                                       10
1    (5) Lack of Toiletries and Other Hygienic Items; (6) Inadequate

2    Nutrition; (7) Extreme Temperatures and Poor Ventilation; (8)

3    Deprivation of Sleep; and (9) Crime and Intimidation. The

4    evidence adduced related to each condition, construed in the

5    light most favorable to the plaintiffs, is discussed in turn.

6         1.      Overcrowding. The plaintiffs consistently testified

7    that, for the majority of their respective confinements at BCB,

8    they and other detainees were packed into overcrowded cells

9    designed for, at best, one-half to one-third the actual

10   capacity. For example, one plaintiff testified that his holding

11   cell was so crowded that he could not determine if it had a

12   toilet. Another plaintiff described his cell as “having no room

13   to even stand” because it was “stuffed . . . like a can of

14   sardines.”

15        The plaintiffs testified that, because the cells were so

16   full, there was often only space to stand for hours at a time,

17   and that being forced to stand for hours continuously was

18   painful and degrading. Even when there was space in the cells,

19   the plaintiffs were reluctant to sit or lie down because the

20   floors were filthy. As one plaintiff testified, he only sat down

21   “out of extreme necessity” because he was “exhausted” and

22   “dehydrated.” While cells contained hard benches, there were not

23   nearly enough benches in any given cell to accommodate its

24   numerous occupants.

                                       11
 1        2.   Unusable Toilets. Each cell at BCB contained, at best,

 2   one exposed toilet that lacked a seat, lid, toilet paper, or

 3   sufficient privacy partitions to conceal a toilet user from his

 4   or her fellow holding mates. One plaintiff, who was too tired to

 5   remain standing, testified that he curled up in a fetal position

 6   next to the toilet, the only place he could find room to do so

 7   in the cell. Some plaintiffs testified that they were kept for

 8   stretches in cells that did not have any toilet at all.

 9        Captain Tobin testified that, as a general practice,

10   toilets were cleaned and maintained regularly. Captain Tobin

11   also swore that “[d]etainees are never placed in a cell with a

12   non-functioning toilet” and that “[t]here is always at least one

13   roll of toilet paper provided in each cell.”

14        But the plaintiffs consistently testified that, for any

15   cell that did have a toilet, the toilet rim and bowl, along with

16   the surrounding floor and walls, were covered with some

17   combination of feces, maggots, urine, vomit, and rotten milk.

18   The toilets were frequently clogged and would overflow, spilling

19   their contents. The smell was horrific, with one plaintiff

20   describing the odor in the cells as “overbearing.” The

21   plaintiffs testified that roaches, mice, and other insects and

22   vermin were commonplace in the area around the toilets.

23        Under these circumstances, the plaintiffs testified that,

24   to varying degrees and for varying reasons, they found the

                                    12
 1   toilets unusable. Some testified that they had the tolerance to

 2   urinate in the toilets, while others could not bring themselves

 3   to use the toilets even for urination. Some plaintiffs testified

 4   that they did not use the toilet for the eminently practical

 5   reason that it was clogged or overflowing, leading those

 6   plaintiffs to fear that any overflow would spill into the cell

 7   and even land on other detainees standing, sitting, or lying

 8   next to the toilet; while others found the toilet and

 9   surrounding area simply too sickening and unsanitary to use. As

10   one plaintiff testified, “you would have to be really out of

11   your mind to use” the toilet.

12        One plaintiff testified that he defecated in his pants

13   because he could no longer control his bowels. Another plaintiff

14   testified that he used a toilet to defecate without any toilet

15   paper. That plaintiff was later given an almost depleted roll of

16   toilet paper, which did not have enough paper for him to clean

17   himself.

18        Some of the plaintiffs testified that they asked officers

19   to take them to other cells with less filthy toilets, requests

20   the officers almost invariably denied.

21        3.    Garbage and Inadequate Sanitation. Given that many of

22   the toilets were clogged and overflowing, the plaintiffs

23   unsurprisingly testified that the holding cells themselves were

24   filthy. The cells had feces and dried urine caked to the floors.

                                     13
 1   The stench from the toilets drifted through the holding cells,

 2   and caused one plaintiff to “dry heav[e] . . . yellow bile.” The

 3   plaintiffs consistently testified that the floors were sticky

 4   and covered with garbage and other unsanitary items, such as

 5   vomit, dead roaches, decaying apple cores, old milk cartons, and

 6   rotting sandwiches. One plaintiff testified that he could not

 7   “recall a time [the cells were] sanitary for a human being.”

 8        Pursuant to prison policy, the cells did not contain trash

 9   cans and detainees were expected to throw their trash on the

10   floor. Captain Tobin swore that BCB’s cells were cleaned by BCB

11   custodial staff three times a day. However, the plaintiffs did

12   not testify to witnessing any BCB staff cleaning or maintaining

13   the cells.

14        4.      Infestation. The plaintiffs consistently testified

15   that the holding cells were infested with rats, mice,

16   cockroaches, flies, and other insects and vermin. One plaintiff

17   testified that he saw mice and roaches coming out of a radiator;

18   another testified that he saw water bugs emerging from the

19   toilet and nearby exposed pipes; while another described seeing

20   roaches in the area where the food was stored, and under a sink.

21   Yet another plaintiff testified that he observed roaches

22   climbing on his sneaker. Finally, some plaintiffs testified that

23   they watched as rats and insects crawled into, out-of, and

24   around the boxes where food was stored.

                                       14
 1        5.   Lack of Toiletries and Other Hygienic Items. The

 2   plaintiffs generally testified that they were not provided with

 3   basic toiletries, such as soap, tissues, toothbrushes,

 4   toothpaste, and toilet paper, and that the officers generally

 5   refused to provide these items even when explicitly requested.

 6   One plaintiff, who was menstruating at the time of her

 7   detention, began “bleeding all over [her]self.” She testified

 8   that the officers were dismissive of her repeated requests for

 9   sanitary napkins, and that she stopped asking for sanitary

10   napkins only when she heard an officer reprimand another

11   detainee for making similar requests. Likewise, another

12   plaintiff testified that he and his fellow detainees took turns

13   asking the officers for toilet paper. The officers responded by

14   threatening to delay arraignment if the detainees kept

15   “harassing [them].”

16        6.   Inadequate Nutrition. The plaintiffs generally found

17   the food and water provisions nutritionally inadequate. The

18   plaintiffs testified that the sandwiches, and much of the other

19   food, were moldy, rotten, stale, or otherwise inedible. Some

20   plaintiffs described seeing vermin and insects crawling in and

21   around the food boxes, which caused those plaintiffs to avoid

22   the food. One plaintiff testified that he saw another detainee

23   receive a sandwich that had rat bite marks in it. Another

24   plaintiff, a practicing Jewish Rabbi, refused to eat any food

                                    15
 1   because it was not Kosher. When the plaintiff complained to an

 2   officer, the officer replied, “[b]eggars can’t be choosy.” Under

 3   these circumstances, some of the plaintiffs refused to eat any

 4   food at BCB.

 5        Many plaintiffs also testified that they did not trust that

 6   the “drinking water” at BCB was potable because it was only

 7   accessible from a grimy cooler on the floor, a filthy fountain,

 8   or a dirty sink adjacent to the toilet. Some plaintiffs

 9   testified that the water from those sources looked rusty and

10   otherwise foul.

11        Other plaintiffs testified that they did not have access to

12   any water or food, in any condition, for long periods of time.

13   One plaintiff testified that he asked for water, but that BCB

14   ran out of water. Another plaintiff testified that he did not

15   ask the officers for water or food after he witnessed the

16   officers ridiculing another detainee who had made the same

17   request.

18        Under these circumstances, many of the plaintiffs refused

19   to drink water and became dehydrated. Some plaintiffs were given

20   milk, but most refused to drink it because it was inexplicably

21   hot. The plaintiffs testified that the officers ignored the

22   plaintiffs’ concerns with respect to the milk and water.

23        7.    Extreme Temperatures and Poor Ventilation. The holding

24   cells were located in areas of BCB that suffered from poor

                                     16
 1   ventilation, which exacerbated odor problems. In addition, the

 2   plaintiffs testified that they were subjected to extreme

 3   temperatures depending on the season and the location at BCB---

 4   as such, a plaintiff might experience extreme heat and extreme

 5   cold on the same day while moving through BCB. Some plaintiffs

 6   testified that they found BCB unbearably hot while others

 7   testified that they found it unbearably cold. One plaintiff

 8   arrested in January 2012 testified that she removed her socks

 9   and shoes due to the “ridiculous[] heat” even though she found

10   the cells, including the cell floors, disgusting and repulsive.

11        8.   Deprivation of Sleep. The plaintiffs testified that

12   they generally could not sleep while at BCB for a variety of

13   reasons. The filthy state of the holding cells, coupled with the

14   sheer number of detainees housed in any given cell, made it

15   difficult to find enough room to lie down---many plaintiffs

16   refused to sit or lie down on the floors at all. While BCB

17   apparently had mats that it would provide detainees upon

18   request, many plaintiffs testified that they were unaware of

19   their availability and, regardless, did not see any provided in

20   the cells. To explain why she did not think to request a mat,

21   one plaintiff mused that, “if [the officers] would not give

22   somebody toilet paper, I didn’t think they” would give us mats.

23   The plaintiffs who were given mats testified that the mats were



                                    17
1    filthy and, in any event, that there was no room in the cells to

2    lie down on them because of the overcrowding.

3            9.   Crime and Intimidation. The plaintiffs witnessed other

4    detainees fight each other. Some plaintiffs testified that

5    officers did not monitor the cells to break up altercations. One

6    plaintiff testified that she was kicked, pushed, and verbally

7    abused by other detainees, and that there was no officer nearby

8    to intervene. Another plaintiff testified that he was verbally

9    accosted by two other detainees for about ten hours, but that

10   the officers ignored his requests to be transferred to another

11   cell.

12                                    (iii)

13           The plaintiffs paint a picture of BCB that is alarming and

14   appalling. The plaintiffs testified that they found the

15   conditions at BCB degrading, humiliating, and emotionally

16   scarring. One plaintiff testified: “I was not treated in a

17   humane manner. I believe if I were a dog, and that if the

18   A.S.P.C.A. was brought in and there was a dog in that cell, that

19   the police officers, whoever were responsible for the treatment

20   of that dog in that cell, that they would be brought up on

21   charges.” Another plaintiff had an anxiety attack that required

22   hospitalization, which he explained:

23           [S]tarted because of the deplorable conditions. I
24           tried holding my bowel for about four hours. I wasn’t
25           able to use the bathroom or any form of the bathroom

                                       18
 1        and I found it very hard to breathe. My chest was very
 2        heavy and I tried to alert the guard. One guard just
 3        walked by and when they were letting in more people I
 4        told the guard I have to go to the hospital. I’m
 5        having chest pains and it was maybe 30 minutes after
 6        that they took me to the medical cell.
 7
 8        Another plaintiff testified that the experience “stay[ed]”

 9   with him, explaining that it was something that was difficult to

10   forget.

11        However, the plaintiffs did not generally testify that they

12   suffered serious long term physical injuries or illnesses.

                                 (i)

15        The plaintiffs filed their initial complaint on June 26,

16   2013, which they amended on August 7, 2013, and again on

17   September 12, 2013. The defendants moved to dismiss the

18   plaintiffs’ claims pursuant to Rule 12(b)(6) of the Federal

19   Rules of Civil Procedure, a motion the District Court denied in

20   an Opinion and Order dated September 12, 2014. See Cano v. City

21   of New York, 

(E.D.N.Y. 2014).

22        Although not the subject of the current appeal, this prior

23   opinion by the District Court provides helpful background. In

24   that opinion, the District Court noted that the defendants had

25   argued for a nearly “per se rule that no matter the conditions,

26   if a detainee is only exposed to them for less than twenty-four

27   hours, there can be no objective constitutional violation.” 

  at 333. The District Court rejected the defendants’ argument,

 2   reasoning that even temporary deprivations could be objectively

 3   unconstitutional so long as those conditions were sufficiently

 4   serious. See 

Court accordingly held that the

 5   plaintiffs had “plausibly alleged that the conditions of

 6   confinement at BCB deprived them of the minimal civilized

 7   measures of life’s necessities and subjected them to

 8   unreasonable health and safety risks.” 

v.

 9   Schult, 

, 126 (2d Cir. 2013)).

10        In addition, relying on this Court’s decision in Caiozzo v.

11   Koreman, 

, 70 (2d Cir. 2009), the District Court

12   concluded that, to state a claim for unconstitutional conditions

13   of confinement, the plaintiffs were required to allege that the

14   individual defendants had acted with deliberate indifference in

15   a subjective sense, namely that the defendants knew and

16   disregarded excessive risks to the plaintiffs’ health and

17   safety. 

. The District Court held

18   that the plaintiffs had met this threshold, ruling that it was

19   plausible that the individual defendants were aware of the

20   challenged conditions based on, among other things, “their own

21   observations . . . external reports and complaints; complaints

22   filed by detainees; reports by the media; and prior lawsuits.”

23   

                                    20
 1        The District Court also held that the plaintiffs had

 2   adequately alleged punitive intent and personal involvement by

 3   the individual defendants. See 

 4                               (ii)

 5        At the close of extensive discovery---which included, among

 6   other things, the often uncontroverted deposition testimony of

 7   each plaintiff---the defendants moved for summary judgment,

 8   which the District Court granted in an Opinion and Order dated

 9   August 13, 2015. Cano v. City of New York, 

10   (E.D.N.Y. 2015).

11        The District Court began by stating that it would describe

12   the facts of the case “in the light most favorable to the

13   Plaintiffs, the non-moving party.” 

(citation omitted).

14   However, the District Court never described the evidence of the

15   conditions that each individual plaintiff faced. Instead, the

16   District Court summarized the case by quoting allegations from

17   the Second Amended Complaint before proceeding to its discussion

18   of the case. See 

The District Court ultimately

19   held that the defendants were entitled to summary judgment for

20   several reasons. 

21        First, the District Court found that no jury could conclude

22   that any of the evidence of the challenged conditions of

23   confinement, “either taken in the aggregate or taken as a

24   whole,” objectively deprived any of the plaintiffs of their due

                                      21
 1   process rights. 

In contrast to the state of law

 2   described in its opinion denying the defendants’ motion to

 3   dismiss, the District Court concluded that, “[t]he Second

 4   Circuit and her constituent District Courts have routinely held

 5   that occasional and temporary deprivations of sanitary and

 6   temperate conditions, without more, do not constitute a

 7   sufficiently serious deprivation under the Eighth Amendment to

 8   constitute punishment.” 

Accordingly, the District

 9   Court held that, “while certain conditions may have been

10   uncomfortable for Plaintiffs, the evidence fails to establish

11   any Plaintiff was regularly denied his or her basic human needs

12   or was exposed to conditions that posed an unreasonable risk of

13   serious damage to his or her future health.” 

  added). In particular, the District Court reasoned that no

15   plaintiff could establish an objective constitutional

16   deprivation because no plaintiff could link any condition of

17   confinement to any actual serious injury, and because the period

18   of confinement did not exceed twenty-four hours for any

19   plaintiff. See, e.g., 

to show any of them

20   were subjected to overcrowding for an extended period of time

21   and further fail to establish any of them were injured in any

22   way from the overcrowding.”); 

(“Most Plaintiffs did

23   not seek any sort of medical treatment and none of the

24   Plaintiffs provide evidence of having suffered any long term

                                    22
 1   physical or emotional harm due to time spent in the BCB.”); see

 2   also 

 3         Second, the District Court concluded that no reasonable

 4   jury could find that the plaintiffs had satisfied the subjective

 5   prong of a deliberate indifference claim, namely that the

 6   officers knew about conditions that posed excessive risks to the

 7   plaintiffs’ safety and health. The Court found that the evidence

 8   for the individual defendants---especially BCB’s log book

 9   entries, which documented sporadic cleaning and maintenance

10   efforts, and Captain Tobin’s deposition testimony---established

11   that the individual defendants had reasonable practices in place

12   to ensure that the officers under their supervision acted

13   reasonably in response to any risks. 

The District

14   Court found that the individual defendants had acted with, at

15   most, mere negligence. 

Moreover, the District Court

16   found that none of the individual defendants could have known

17   about the allegedly unconstitutional conditions because there

18   was no evidence that the subordinate officers who actually

19   guarded the detainees informed the individual defendants of any

20   of the challenged conditions, which were not unconstitutional in

21   any event. See 

22        Third, for substantially the same reasons, the District

23   Court concluded that there was no triable issue of fact as to



                                    23
 1   whether any individual defendant had acted with punitive intent.

 2   See 

 3        Finally, because the plaintiffs had failed to establish a

 4   triable issue of fact that any of them had suffered an objective

 5   deprivation (and therefore failed to establish an underlying

 6   constitutional violation), the District Court concluded that the

 7   individual defendants were entitled to qualified immunity, and

 8   that the plaintiffs could not prove that the City had any Monell

 9   liability. See 

10                                  (iii)

11        On August 14, 2015, the District Court entered judgment

12   dismissing the plaintiffs’ Second Amended Complaint. On August

13   28, 2015, this Court issued its decision in Willey. On the same

14   day, the plaintiffs informed the District Court of their

15   intention to move for reconsideration based on Willey, and the

16   District Court later set a briefing schedule whereby the motion

17   for reconsideration would be fully briefed by October 23, 2015.

18        On September 11, 2015, the plaintiffs timely filed a Notice

19   of Appeal challenging the District Court’s grant of summary

20   judgment. Later that day, the plaintiffs filed with the District

21   Court their motion for reconsideration pursuant to Rules 59(e)

22   and 60(b) of the Federal Rules of Civil Procedure, and Local

23   Rule 6.3(e) of the United States District Court for the Eastern

24   District of New York. On the same day, in a minute order (the

                                     24
 1   “First Minute Order”), the District Court denied the motion for

 2   reconsideration, stating that the appeal divested it of

 3   jurisdiction over the case.

 4        The plaintiffs promptly moved for reconsideration of the

 5   First Minute Order, arguing that, pursuant to Rule 4(a)(4)(B)(i)

 6   of the Federal Rules of Appellate Procedure, the appeal did not

 7   divest the District Court of jurisdiction to reconsider the

 8   judgment. On September 12, 2015, in another minute order (the

 9   “Second Minute Order”), the District Court denied without

10   elaboration the plaintiffs’ motion for reconsideration of the

11   First Minute Order. On October 5, 2015, the plaintiffs filed an

12   Amended Notice of Appeal challenging, in addition to the grant

13   of summary judgment, the First and Second Minute Orders.7

14                                  II.

15        A pretrial detainee’s claims of unconstitutional conditions

16   of confinement are governed by the Due Process Clause of the

     7
       It is unnecessary to reach the plaintiffs’ appeal challenging
     the First and Second Minutes Orders, which were entered post-
     judgment. Those Orders do not raise any substantial issues that
     affect the disposition of this appeal. To the extent that the
     plaintiffs’ Notice of Appeal divested the District Court of its
     jurisdiction to hear the post-judgment motions, Rule 62.1 of the
     Federal Rules of Civil Procedure permits district courts to
     issue “indicative rulings” to appellate courts when “a timely
     motion is made for relief that the court lacks authority to
     grant because of an appeal that has been docketed and is
     pending.” Fed. R. Civ. P. 62.1; see also Fed. R. App. P. 12.1.
     In the indicative ruling, the district court may indicate if it
     believes that the relief sought is meritorious, meritless, or
     merits further consideration, and request that the appellate
     court remand the case for further proceedings.
                                    25
 1   Fourteenth Amendment, rather than the Cruel and Unusual

 2   Punishments Clause of the Eight Amendment. Benjamin v. Fraser,

 3   

, 49 (2d Cir. 2003), overruled on other grounds by

 4   Caiozzo v. Koreman, 

, 70 (2d Cir. 2009); see also

 5   City of Revere v. Mass. Gen. Hosp., 

, 244 (1983). A

 6   pretrial detainee’s claims are evaluated under the Due Process

 7   Clause because, “[p]retrial detainees have not been convicted of

 8   a crime and thus ‘may not be punished in any manner—neither

 9   cruelly and unusually nor otherwise.’” Iqbal v. Hasty, 

  143, 168 (2d Cir. 2007) (quoting 

–50),

11   rev’d on other grounds sub nom., Ashcroft v. Iqbal, 

  662, 678 (2009). A detainee’s rights are “at least as great as

13   the Eighth Amendment protections available to a convicted

14   prisoner.” City of 

.

15        A pretrial detainee may establish a § 1983 claim for

16   allegedly unconstitutional conditions of confinement by showing

17   that the officers acted with deliberate indifference to the

18   challenged conditions. See 

. This means

19   that a pretrial detainee must satisfy two prongs to prove a

20   claim, an “objective prong” showing that the challenged

21   conditions were sufficiently serious to constitute objective

22   deprivations of the right to due process, and a “subjective

23   prong”---perhaps better classified as a “mens rea prong” or

24   “mental element prong”---showing that the officer acted with at

                                    26
 1   least deliberate indifference to the challenged conditions. The

 2   reason that the term “subjective prong” might be a misleading

 3   description is that, as discussed below, the Supreme Court has

 4   instructed that “deliberate indifference” roughly means

 5   “recklessness,” but “recklessness” can be defined subjectively

 6   (what a person actually knew, and disregarded), or objectively

 7   (what a reasonable person knew, or should have known). See

 8   Farmer v. Brennan, 

, 836-37 (1994).

 9        Relying on this Court’s decision in Caiozzo v. Koreman, 581

, 72 (2d Cir. 2009), the District Court concluded that

11   the elements for establishing deliberate indifference under the

12   Fourteenth Amendment were the same as under the Eighth

13   Amendment. 

(citing Caiozzo, 

  at 72). Therefore, the District Court required the plaintiffs to

15   prove that, “(1) objectively, the deprivation the [detainee]

16   suffered was ‘sufficiently serious that he was denied the

17   minimal civilized measure of life’s necessities,’ and (2)

18   subjectively, the defendant official acted with ‘a sufficiently

19   culpable state of mind . . . , such as deliberate indifference

20   to [detainee] health or safety.’” 

(quoting Walker, 

).

22        In applying this test, the District Court erred in two

23   respects. First, the District Court misapplied this Court’s

24   precedents in assessing whether the plaintiffs had established

                                    27
 1   an objectively serious deprivation. Second, we conclude that the

 2   Supreme Court’s decision in Kingsley altered the standard for

 3   deliberate indifference claims under the Due Process Clause.

 

       Under both the Eighth and Fourteenth Amendments, to

 6   establish an objective deprivation, “the inmate must show that

 7   the conditions, either alone or in combination, pose an

 8   unreasonable risk of serious damage to his health,” Walker, 

, which includes the risk of serious damage to

10   “physical and mental soundness,” LaReau v. MacDougall, 

  974, 978 (2d Cir. 1972). There is no “static test” to determine

12   whether a deprivation is sufficiently serious; instead, “the

13   conditions themselves must be evaluated in light of contemporary

14   standards of decency.” Blissett v. Coughlin, 

, 537

15   (2d Cir. 1995) (citing Rhodes v. Chapman, 

, 346

16   (1981)). For example, “[w]e have held that prisoners may not be

17   deprived of their basic human needs—e.g., food, clothing,

18   shelter, medical care, and reasonable safety—and they may not be

19   exposed to conditions that pose an unreasonable risk of serious

20   damage to [their] future health.” Jabbar v. Fischer, 

  54, 57 (2d Cir. 2012) (citation and internal quotation marks

22   omitted).

23        “[C]onditions of confinement may be aggregated to rise to

24   the level of a constitutional violation, but ‘only when they

                                    28
 1   have a mutually enforcing effect that produces the deprivation

 2   of a single, identifiable human need such as food, warmth, or

 3   exercise.’” 

(quoting Wilson v. Seiter,

 4   

, 304 (1991)). Unsanitary conditions, especially

 5   when coupled with other mutually enforcing conditions, such as

 6   poor ventilation and lack of hygienic items (in particular,

 7   toilet paper), can rise to the level of an objective

 8   deprivation. See 

(collecting cases).

 9         In Willey v. Kirkpatrick, 

, 68 (2d Cir. 2015),

10   this Court recently reiterated that the proper lens through

11   which to analyze allegedly unconstitutional unsanitary

12   conditions of confinement is with reference to their severity

13   and duration, not the detainee’s resulting injury. In Willey, a

14   convicted prisoner brought, among other claims, a claim under

15   the Eighth Amendment against officers at a prison who allegedly

16   exposed him to unsanitary conditions by confining him alone in a

17   cell with little airflow, and then incapacitating his toilet for

18   a period of, at a minimum, seven days “so that he was reduced to

19   breathing a miasma of his own waste.” 

In addition, on

20   two separate occasions (during one of which the prisoner was

21   kept naked), the officers confined the prisoner to an

22   observation cell smeared with feces and urine. See 

23   58.



                                     29
 1        In reinstating the prisoner’s claim, Willey reviewed Second

 2   Circuit case law involving exposure to unsanitary conditions,

 3   and, consistent with this Court’s precedents, made clear that

 4   unsanitary conditions of confinement must be assessed according

 5   to two components, severity and duration, on a case-by-case

 6   basis.8 

(citing Gaston v. Coughlin, 

(2d

 7   Cir. 2001); LaReau v. MacDougall, 

(2d Cir. 1972)).

 8   While Willey acknowledged that “there are many exposures of

 9   inmates to unsanitary conditions that do not amount to a

10   constitutional violation,” the Court rejected a “bright-line

11   durational requirement for a viable unsanitary-conditions claim”

12   or a “minimal level of grotesquerie required” before such a

13   claim could be brought. 

As this Court explained,

14   “[t]he severity of an exposure may be less quantifiable than its

15   duration, but its qualitative offense to a prisoner’s dignity

16   should be given due consideration.” 

Court noted

17   that “serious injury is unequivocally not a necessary element of

18   an Eighth Amendment claim,” although “the seriousness of the

19   harms suffered is relevant to calculating damages and may shed

20   light on the severity of an exposure.” 

also reinstated the prisoner’s claim based on the

22   provision of nutritionally inadequate food, concluding that the

     8
       The Court also noted that other Courts of Appeals are broadly
     in accord with this analytical framework. See 

(collecting cases).
                                    30
 1   prisoner’s allegations that he was usually served stale bread

 2   and rotten cabbage for one week were sufficient to allege an

 3   objective deprivation. 

This Court again rejected the

 4   imposition of bright-line limits on inadequate nutrition claims,

 5   noting that the prisoner’s “claim is not that all restricted

 6   diets are unconstitutional, but that . . . . his restricted diet

 7   was unusually unhealthy.” 

of the challenged conditions in this case, such as

 9   inadequate nutrition, and unsanitary conditions---including

10   inoperable toilets and filthy cells---are clearly covered by

11   Willey. Other conditions at issue, such as overcrowding, do not

12   necessarily fall under Willey’s express ambit. However, Willey

13   was not breaking new ground, but rather reaffirming the law in

14   this Circuit, and its reasoning applies to the other challenged

15   conditions in this case.

16        While the claims before the Court in Willey related to

17   unsanitary conditions and inadequate nutrition, this Court has

18   been reluctant to impose bright-line durational or severity

19   limits in conditions of confinement cases, and has never imposed

20   a requirement that pretrial detainees show that they actually

21   suffered from serious injuries. See 

22   (distinguishing Rhodes v. Chapman, 

(1981), by

23   reasoning that the Supreme Court did not hold, as a matter of

24   law, that the provision of a cell sufficient to afford a

                                     31
 1   pretrial detainee thirty-one square feet of space could not be

 2   an unconstitutional deprivation of living space). Even in the

 3   rare case where the Court has imposed bright-line limits, those

 4   limits have been flexible and dependent upon the circumstances.

 5   See 

(“We hold that the failure of prison

 6   officials to provide inmates with seatbelts on prison transport

 7   buses does not, standing alone, violate the Eighth or Fourteenth

 8   Amendments.” (emphasis added)).

 9        Bright-line limits are generally incompatible with

10   Fourteenth Amendment teaching that there is no “static”

11   definition of a deprivation, see 

12   (citing 

), and the Supreme Court’s

13   instruction that any condition of confinement can mutually

14   enforce another, so long as those conditions lead to the same

15   deprivation, see 

; see also Walker, 

. The latter point is implicit in Willey, 

  at 68, which found that conditions that would normally have

18   nothing to do with sanitation (for example, poor air circulation

19   or being kept naked) can exacerbate the harmful effects of

20   unsanitary conditions. Accordingly, this Court has repeatedly

21   reiterated that conditions of confinement cases involve fact-

22   intensive inquiries. See, e.g., 

.

23        The standards for evaluating objective deprivations, as

24   articulated in Willey, thus extend to each of the nine

                                       32
 1   challenged conditions of confinement at issue in this case---(1)

 2   Overcrowding; (2) Unusable Toilets; (3) Garbage and Inadequate

 3   Sanitation; (4) Infestation; (5) Lack of Toiletries and Other

 4   Hygienic Items; (6) Inadequate Nutrition; (7) Extreme

 5   Temperatures and Poor Ventilation; (8) Deprivation of Sleep; and

 6   (9) Crime and Intimidation---regardless of whether those

 7   conditions relate to a deprivation involving sanitation or

 8   inadequate nutrition. Each of these conditions must be measured

 9   by its severity and duration, not the resulting injury, and none

10   of these conditions is subject to a bright-line durational or

11   severity threshold. Moreover, the conditions must be analyzed in

12   combination, not in isolation, at least where one alleged

13   deprivation has a bearing on another. See 

  304 (noting the synergy between cold temperatures and the

15   failure to provide blankets in establishing an Eighth Amendment

16   violation). An overcrowded cell, for example, may exacerbate the

17   effect of unsanitary conditions. Similarly, poor ventilation may

18   be particularly harmful when combined with an overflowing

19   toilet. Inadequate nutrition may be compounded by infestation.

       The second element of a conditions of confinement claim

22   brought under the Due Process Clause of the Fourteenth Amendment

23   is the defendant’s “deliberate indifference” to any objectively

24   serious condition of confinement. Courts have traditionally

                                    33
 1   referred to this second element as the “subjective prong.” But

 2   “deliberate indifference,” which is roughly synonymous with

 3   “recklessness,” can be defined either “subjectively” in a

 4   criminal sense, or “objectively” in a civil sense. As such, the

 5   “subjective prong” might better be described as the “mens rea

 6   prong” or “mental element prong.”

 7        Just over two decades ago, in Farmer v. Brennan, 

  825 (1994), the Supreme Court addressed the meaning of

 9   “deliberate indifference” in the context of a convicted

10   prisoner’s deliberate indifference to conditions of confinement

11   claim brought under the Cruel and Unusual Punishments Clause of

12   the Eighth Amendment. The Supreme Court concluded that

13   deliberate indifference is properly equated with the mens rea of

14   “recklessness.” 

However, the Court observed that

15   recklessness is not completely self-defining. See 

16   noted that recklessness could be defined according to an

17   objective standard akin to that used in the civil context, which

18   would not require proof of an official’s actual awareness of the

19   harms associated with the challenged conditions, or according to

20   a more exacting subjective standard akin to that used in the

21   criminal context, which would require proof of such subjective

22   awareness. See 

23        The Supreme Court in Farmer rejected the application of an

24   objective standard for deliberate indifference as inappropriate

                                     34
 1   under the Cruel and Unusual Punishments Clause, holding that an

 2   official “cannot be found liable under the Eighth Amendment for

 3   denying an inmate humane conditions of confinement unless the

 4   official knows of and disregards an excessive risk to inmate

 5   health or safety; the official must both be aware of facts from

 6   which the inference could be drawn that a substantial risk of

 7   serious harm exists, and he must also draw the inference.” 

837. The Supreme Court based its holding on a close reading

 9   of the text of the Cruel and Unusual Punishments Clause, which

10   “outlaws cruel and unusual ‘punishments,’” not “cruel and

11   unusual ‘conditions.’” 

the Supreme Court,

12   “punishment” connotes a subjective intent on the part of the

13   official, which also requires awareness of the punishing act or

14   omission. See 

As the Court stated, “an official’s

15   failure to alleviate a significant risk that he should have

16   perceived but did not, while no cause for commendation, cannot

17   under our cases be condemned as the infliction of punishment.”

18   

19        Farmer did not address deliberate indifference for pretrial

20   detainees under the Due Process Clause of the Fourteenth

21   Amendment. Following Farmer, this Court seven years ago in

22   

, discerned two lines of Fourteenth

23   Amendment deliberate indifference authority in this Circuit: one

24   that applied an objective standard and another that applied a

                                    35
 1   subjective standard. Caiozzo resolved the intra-circuit

 2   divergence, holding that the same subjective standard for

 3   deliberate indifference claims under the Eighth Amendment’s

 4   Cruel and Unusual Punishments Clause should apply to deliberate

 5   indifference claims under the Fourteenth Amendment’s Due Process

 6   Clause, which the Court reasoned was “a logical extension of the

 7   principles recognized in Farmer.”9 

This Court

 8   explained that this Court’s jurisprudence for claims brought

 9   under the Eighth Amendment had generally mirrored this Court’s

10   jurisprudence for claims under the Fourteenth Amendment. See 

Cuoco v. Moritsugu, 

, 106 (2d Cir. 2000)).

12   Relying on the analysis of the Court of Appeals for the Fifth

13   Circuit in Hare v. City of Corinth, Mississippi, 

14   (5th Cir. 1996) (en banc), this Court highlighted that the

15   Supreme Court had given no indication that pretrial detainees

16   should be treated differently from their post-conviction

17   counterparts. See 

(quoting Hare, 

). This Court also noted that the majority of the



     9
       

, involved a claim for deliberate
     indifference to medical needs under the Fourteenth Amendment.
     Nevertheless, the Court’s interpretation of “deliberate
     indifference” applied to any pretrial detainee claim for
     deliberate indifference to “serious threat to . . . health or
     safety”---such as from unconstitutional conditions of
     confinement, or the failure-to-protect---because deliberate
     indifference means the same thing for each type of claim under
     the Fourteenth Amendment. See 

                                    36
 1   other Courts of Appeals had reached a similar conclusion. See

 2   

n.4 (collecting cases).

 3         The Supreme Court’s decision in Kingsley v. Hendrickson,

 4   

(2015)---in which the Supreme Court concluded

 5   that excessive force claims brought under the Fourteenth

 6   Amendment do not require the same subjective intent standard as

 7   excessive force claims brought under the Eighth Amendment---has

 8   undercut the reasoning in Caiozzo.10 The issue before the Supreme

 9   Court in Kingsley was whether “to prove an excessive force claim

10   [under the Fourteenth Amendment], a pretrial detainee must show

11   that the officers were subjectively aware that their use of

12   force was unreasonable, or only that the officers’ use of that

13   force was objectively unreasonable.” 

  2470 (emphasis added). Kingsley involved a pretrial detainee’s

15   allegations that prison officers, who had undisputedly

16   deliberately used force against the detainee (by using a Taser

17   to incapacitate him), had, in doing so, acted with excessive

18   force. See 

the requisite mens rea for the officer’s use of

20   force against the detainee, the Court held “that a pretrial


     10
       See also Ross v. Correction Officers John & Jane Does 1-5, 610
     F. App’x 75, 77 n.1 (2d Cir. 2015) (summary order). The panel in
     Ross did not reach the implications of Kingsley because it
     concluded that the defendant-official there was entitled to
     qualified immunity, which resulted in the dismissal of the
     plaintiff’s claims. See 

  detainee must show only that the force purposely or knowingly

 2   used against him was objectively unreasonable.”11 

 3   The Court observed that, “[t]hus, the defendant’s state of mind

 4   is not a matter that a plaintiff is required to prove.” 

  2472.

 6           The Court reasoned that its interpretation of excessive

 7   force claims under the Due Process Clause was consistent with

 8   its prior precedents, including Bell v. Wolfish, 

 9   (1979), where the Court had held that a pretrial detainee can

10   prevail on a claim brought under the Fourteenth Amendment

11   challenging “a variety of prison conditions, including a

12   prison’s practice of double-bunking” solely by proffering

13   objective evidence to show that the conditions were not

14   reasonably related to a legitimate, nonpunitive governmental

15   purpose. 

(citing 

  541-43). The Court found that the focus of Bell and its progeny


     11
       The Supreme Court in Kingsley framed its analysis by observing
     that excessive force cases involve “two separate state-of-mind
     questions. The first concerns the defendant’s state of mind with
     respect to his physical acts—i.e., his state of mind with
     respect to the bringing about of certain physical consequences
     in the world. The second question concerns the defendant’s state
     of mind with respect to whether his use of force was
     ‘excessive.’” 

. The Court did not
     address the first question because it was undisputed that the
     officers had deliberately used force against the detainee by
     purposefully and knowingly using the Taser on the detainee,
     although the Court left open the possibility that the mental
     state of recklessness might suffice for the first state-of-mind
     question as well. 

  on punishment “does not mean that proof of intent (or motive) to

 2   punish is required for a pretrial detainee to prevail on a claim

 3   that his due process rights were violated” or that the

 4   “application of Bell’s objective standard should involve

 5   subjective considerations.”12 

(collecting cases).

 6        The Court also concluded that Eighth Amendment excessive

 7   force jurisprudence did not control the standard for excessive

 8   force claims under the Fourteenth Amendment. See 

 9   (finding that Eighth Amendment cases “are relevant here only

10   insofar as they address the practical importance of taking into

11   account the legitimate safety-related concerns of those who run

12   jails”). The Court stressed the different functions of the

13   Eighth Amendment’s Cruel and Unusual Punishments Clause and the

14   Fourteenth Amendment’s Due Process Clause:

15        The language of the two Clauses differs, and the
16        nature of the claims often differs. And, most
17        importantly, pretrial detainees (unlike convicted
18        prisoners) cannot be punished at all, much less
19        “maliciously and sadistically.” Thus, there is no need
20        here, as there might be in an Eighth Amendment case,
21        to determine when punishment is unconstitutional. 

omitted).

     12
       A pretrial detainee can establish a due process claim for
     inhumane conditions of confinement either by proving an
     official’s deliberate indifference to those conditions, or by
     proving that that those conditions are punitive. See 

. Kingsley and its precedents are clear that the
     two theories of liability are distinct. Nothing about our
     interpretation of the proper standard for deliberate
     indifference for due process purposes should be construed as
     affecting the standards for establishing liability based on a
     claim that challenged conditions are punitive.
                                    39
 1
 2        Following the Supreme Court’s analysis in Kingsley, there

 3   is no basis for the reasoning in Caiozzo that the subjective

 4   intent requirement for deliberate indifference claims under the

 5   Eighth Amendment, as articulated in Farmer, must apply to

 6   deliberate indifference claims under the Fourteenth Amendment.

 7   Caiozzo is thus overruled to the extent that it determined that

 8   the standard for deliberate indifference is the same under the

9    Fourteenth Amendment as it is under the Eighth Amendment.13

10        Farmer is clear that “deliberate indifference” can be

11   viewed either subjectively or objectively. In the context of a

12   convicted prisoner asserting a violation of an Eighth Amendment

13   right to be free from cruel and unusual punishments, the Supreme

14   Court in Farmer defined deliberate indifference subjectively,

15   meaning that a prison official must appreciate the risk to which

16   a prisoner was subjected. The conditions of confinement were a

17   form of punishment, and, based on the Supreme Court’s

18   interpretation of the Cruel and Unusual Punishments Clause, the

19   prison official had to have subjective awareness of the

20   harmfulness associated with those conditions to be liable for

21   meting out that punishment.

22        After Kingsley, it is plain that punishment has no place in

23   defining the mens rea element of a pretrial detainee’s claim

     13
       This opinion has been circulated to all of the judges of the
     Court prior to filing.
                                    40
 1   under the Due Process Clause. Unlike a violation of the Cruel

 2   and Unusual Punishments Clause, an official can violate the Due

 3   Process Clause of the Fourteenth Amendment without meting out

 4   any punishment, which means that the Due Process Clause can be

 5   violated when an official does not have subjective awareness

 6   that the official’s acts (or omissions) have subjected the

 7   pretrial detainee to a substantial risk of harm.

 8        Kingsley held that an officer’s appreciation of the

 9   officer’s application of excessive force against a pretrial

10   detainee in violation of the detainee’s due process rights

11   should be viewed objectively. The same objective analysis should

12   apply to an officer’s appreciation of the risks associated with

13   an unlawful condition of confinement in a claim for deliberate

14   indifference under the Fourteenth Amendment. A pretrial detainee

15   may not be punished at all under the Fourteenth Amendment,

16   whether through the use of excessive force, by deliberate

17   indifference to conditions of confinement, or otherwise.

18        Therefore, to establish a claim for deliberate indifference

19   to conditions of confinement under the Due Process Clause of the

20   Fourteenth Amendment, the pretrial detainee must prove that the

21   defendant-official acted intentionally to impose the alleged

22   condition, or recklessly failed to act with reasonable care to

23   mitigate the risk that the condition posed to the pretrial

24   detainee even though the defendant-official knew, or should have

                                    41
 1   known, that the condition posed an excessive risk to health or

2    safety. In other words, the “subjective prong” (or “mens rea

3    prong”) of a deliberate indifference claim is defined

4    objectively.

5         In concluding that deliberate indifference should be

6    defined objectively for a claim of a due process violation, we

7    join the Court of Appeals for the Ninth Circuit, which, sitting

 8   en banc in Castro v. County of Los Angeles, 

, 1070

 9   (9th Cir. 2016) (en banc), cert. denied, No. 16-655, 

  276190 (U.S. Jan. 23, 2017), likewise interpreted Kingsley as

11   standing for the proposition that deliberate indifference for

12   due process purposes should be measured by an objective

13   standard.14 The Court of Appeals for the Ninth Circuit concluded

14   that Kingsley’s broad reasoning extends beyond the excessive

15   force context in which it arose.15 See 

(“The


     14
        Castro dealt with deliberate indifference in a failure-to-
     protect case, but---like this Court’s interpretation of
     deliberate indifference, see note 9, supra---the interpretation
     of deliberate indifference by the Court of Appeals for the Ninth
     Circuit is equally applicable to a conditions of confinement
     claim. See 

(overruling Clouthier v.
     County of Contra Costa, 

(9th Cir. 2010), which had
     held that a subjective test applied to due process claims for
     deliberate indifference to addressing serious medical needs);
     Williams v. Fresno Cty. Dist. Attorney’s Office, No. 16-cv-00734
     (DAD)(MJS), 

, at *4 (E.D. Cal. Sept. 20, 2016)
     (applying Castro test to a due process claim for deliberate
     indifference to conditions of confinement).
     15
        The defendants cite several decisions by other Courts of
     Appeals that have continued to apply a subjective standard to
     deliberate indifference claims for pretrial detainees after
                                    42
 1   underlying federal right, as well as the nature of the harm

 2   suffered, is the same for pretrial detainees’ excessive force

 3   and failure-to-protect claims.”).

 4        The defendants argue that using an objective standard to

 5   measure deliberate indifference---a similar standard to the one

 6   used before Caiozzo, see, e.g., 

; Liscio

 7   v. Warren, 

, 276 (2d Cir. 1990), overruled by

 8   Caiozzo, 581 F.3d at 71---risks that officials that act with

 9   mere negligence will be held liable for constitutional

10   violations. But any § 1983 claim for a violation of due process

11   requires proof of a mens rea greater than mere negligence.16 See

12   

(“[L]iability for negligently

13   inflicted harm is categorically beneath the threshold of

14   constitutional due process.” (citation omitted)). A detainee

15   must prove that an official acted intentionally or recklessly,



     Kingsley. But none of those cases considered whether Kingsley
     had altered the standard for deliberate indifference for
     pretrial detainees. See, e.g., Brown v. Chapman, No. 15-3506,
     

(6th Cir. Feb. 19, 2016); Moore v. Diggins, 633
     F. App’x 672 (10th Cir. 2015) (summary opinion); Mason v.
     Lafayette City-Par. Consol. Gov’t, 

(5th Cir. 2015);
     Smith v. Dart, 

, 310 n.2 (7th Cir. 2015) (noting, in
     light of Kingsley, that the parties argued the state of mind
     element but that “it is not at issue in this appeal”).
     16
        The reckless or intentional action (or inaction) required to
     sustain a § 1983 deliberate indifference claim must be the
     product of a voluntary act (or omission) by the official. See
     

(observing that the word “deliberate” in
     “deliberate indifference” might “require[] nothing more than an
     act (or omission) of indifference to a serious risk that is
     voluntary, not accidental” (citation omitted)).
                                    43
 1   and not merely negligently. Indeed, pre-Caiozzo case law that

 2   applied an objective standard was clear that officials could not

 3   be found liable for negligent conduct. See, e.g., Liscio, 

.

 5        The defendants also argue that the return to an objective

 6   definition of deliberate indifference will open the flood-gates

 7   to litigation. The argument is unpersuasive. Prior to Caiozzo,

 8   some courts in this Circuit applied an objective standard for

 9   deliberate indifference. Caiozzo chose to apply a subjective

10   standard to deliberate indifference because this Court thought

11   that it was more consistent with Farmer, not because of any

12   concerns that an objective standard would prompt the filing of

13   non-meritorious claims. Consistency with the Supreme Court’s

14   decision in Kingsley now dictates that deliberate indifference

15   be measured objectively in due process cases.

16                                 III.

       The District Court erroneously granted summary judgment for

19   the defendants on the basis that no jury could find that the

20   nine challenged conditions of confinement in this case,

21   considered together or separately, amounted to an objective

22   constitutional deprivation because no plaintiff could establish

23   a regular deprivation lasting more than twenty-four hours, or an

24   actual serious injury or sickness. However, the plaintiffs have

                                    44
 1   adduced substantial evidence, much of it uncontroverted, that

 2   they were subjected to appalling conditions of confinement to

 3   varying degrees and for various time periods. While we recognize

 4   that the District Court did not have the benefit of this Court’s

 5   guidance in Willey, the plaintiffs’ claims should not have been

 6   dismissed on the grounds that the conditions in this case did

 7   not exceed ten to twenty-four hours, or result in serious

 8   injury.

 9        The District Court repeatedly stressed that the plaintiffs

10   were not regularly denied humane conditions of confinement:

11   “Plaintiffs only complain of such issues for a short period of

12   time—an average of ten to twenty-four hours—with nothing more.”

13   

; see also, e.g., 

(“[T]he

14   uncontroverted evidence establishes that no Plaintiff was

15   regularly deprived access to a toilet.”); 

(“Here, not

16   a single Plaintiff was exposed to urine, feces, and/or vomit for

17   anything more than a limited period of time because no Plaintiff

18   was held at BCB for more than one twenty-four hour period.”);

19   

(“[T]here is no evidence that a single Plaintiff was

20   regularly denied any such toiletry during his or her stay at BCB

21   . . . .”). The District Court essentially ruled that no set of

22   conditions, no matter how egregious, could state a due process

23   violation if the conditions existed for no more than ten to

24   twenty-four hours. This was error. 

.

                                    45
 1        The District Court also repeatedly stressed the lack of any

 2   actual serious injury or illness in the case. See, e.g., Cano,

 

(“Most Plaintiffs did not seek any sort of

 4   medical treatment and none of the Plaintiffs provide evidence of

 5   having suffered any long term physical or emotional harm due to

 6   time spent in the BCB.”). In 

, this Court

 7   rejected the argument that a plaintiff must prove a serious

 8   injury in order to establish a constitutional violation due to

 9   inhumane conditions of confinement.

10        The defendants argue that the District Court’s judgment

11   should be affirmed based on an assessment of the severity and

12   duration of the conditions at issue. They argue that Willey

13   supports their position given its admittedly more extreme facts.

14   They contend that those are the types of facts that constitute

15   an objective deprivation. They further contend that no plaintiff

16   in this case actually suffered a long term, grievous physical or

17   emotional injury, a not-so-subtle attempt to bring the standard

18   full circle back to evaluating objective deprivation by injury.

19        Ultimately, the defendants’ theory appears to be that state

20   officials are free to set a system in place whereby they can

21   subject pretrial detainees awaiting arraignment to absolutely

22   atrocious conditions for twenty-four hour periods (and perhaps

23   more) without violating the Constitution so long as nothing

24   actually catastrophic happens during those periods. That is not

                                    46
 1   the law. As the District Court aptly stated in denying the

 2   defendants’ motion to dismiss, “[o]ur Constitution and societal

 3   standards require more, even for incarcerated individuals, and

 4   especially for pretrial detainees who cannot be punished by the

 5   state.” 

. This Court’s cases are

 6   clear that conditions of confinement cases must be evaluated on

 7   a case-by-case basis according to severity and duration, and

 8   instructs that a pretrial detainee’s rights are at least as

 9   great as those of a convicted prisoner. Based on the record, the

10   gradation between the conditions of confinement at issue in this

11   case, and those at issue in Willey, may speak to damages, not

12   the absence of an objective constitutional deprivation.

       In addition, the District Court granted summary judgment to

15   the individual defendants because it concluded that the

16   plaintiffs could not establish that the individual defendants

17   had acted with subjective deliberate indifference, as opposed to

18   objective deliberate indifference. The District Court neither

19   analyzed Kingsley, nor had the benefit of our interpretation of

20   Kingsley as set forth in this opinion, which inures to the

21   benefit of the plaintiffs. The defendants argue that the

22   judgment should nevertheless be affirmed based on the standard

23   for deliberate indifference articulated here. The defendants’

24   argument should be addressed in the first instance by the

                                    47
 1   District Court. The purported deliberate indifference of the

 2   individual defendants must be assessed on an individualized

 3   basis with respect to each plaintiff.17

 

       The District Court also erred in its application of the

 6   well-settled standards for deciding a motion for summary

 7   judgment. The District Court did not construe the evidence in

 8   the light most favorable to the plaintiffs, nor did it draw all

 9   reasonable inferences in their favor.

10        For example, the District Court justified the rejection of

11   the plaintiffs’ inadequate nutrition claims in part by noting

12   that plaintiff Vikki had “claimed that BCB served ‘wonderful

13   cheese and bologna sandwiches.’” 

.

14   Although not reflected in the District Court’s opinion,


     17
       The defendants also argue on appeal that the plaintiffs have
     failed to establish that the individual defendants had any
     personal involvement in any of the challenged conditions of
     confinement. As counsel for the defendants conceded at oral
     argument, although the defendants raised the personal
     involvement argument on their motion to dismiss, they did not
     renew the argument in their motion for summary judgment. In
     their summary judgment papers, the defendants only raised the
     personal involvement argument with respect to the former First
     Deputy Commissioner of the NYPD, Raphael Pineiro, who is no
     longer a party to this action. See note 

. The
     defendants’ argument is accordingly not preserved for review and
     deemed waived. See, e.g., Wal-Mart Stores, Inc. v. Visa U.S.A.,
     Inc., 

, 124 n.29 (2d Cir. 2005). In any event, the
     plaintiffs’ claims against the individual defendants rely on the
     evidence that the individual defendants personally toured BCB on
     a daily basis, and were thus aware of the conditions at the
     holding facility.
                                     48
 1   plaintiff Vikki later clarified in her deposition that she did

 2   not eat the sandwiches “[b]ecause the cheese was dry, the bread

 3   was dry, and [she] wouldn’t feed it to [her] dog.” Construed in

 4   the light most favorable to the plaintiffs, plaintiff Vikki’s

 5   comment about “wonderful” sandwiches was sarcastic.

 6        In another example, the District Court noted that plaintiff

 7   Guarino had asked for a sanitary napkin to clean herself because

 8   she was menstruating and “bleeding all over [her]self,” but the

 9   District Court indicated that there was no proof that “any

10   officer at BCB acted with a sufficiently culpable state of

11   mind.” 

This ignored plaintiff Guarino’s testimony

12   that, after repeatedly asking for a sanitary napkin, she only

13   desisted because she observed an officer threaten another

14   detainee with delayed arraignment if that detainee made any

15   additional requests.

16        Moreover, the District Court discounted as a mere matter of

17   preference the plaintiffs’ testimony that toilets were unusable,

18   reasoning that the plaintiffs were not “denied access” to

19   toilets. 

That frames the plaintiffs’ testimony far

20   too narrowly. The plaintiffs’ testimony was that the toilets (if

21   there were any toilet in the particular cell) could not be used

22   for bowel movements because the toilets lacked privacy, and

23   because the toilets were not kept in such a way that they could

24   reasonably be used. The plaintiffs’ theory is that the toilets

                                    49
 1   were maintained by deliberately indifferent officers in such a

 2   manner that they were unusable. It is not a reasonable inference

 3   that the plaintiffs merely decided not to use the toilets,

 4   especially when one plaintiff defecated in his pants, another

 5   defecated without toilet paper, and a third had an anxiety

 6   attack that required hospitalization because he was “holding

 7   [his] bowel for about four hours.”

 8        Contrary to the District Court’s ruling that the individual

 9   defendants “establish[ed] [that] they responded reasonably to

10   any risk that existed,” see 

the evidence about

11   regularly scheduled cleanings and pest control visits, at best,

12   established that there are genuine disputes as to material facts

13   concerning the handling of sanitation issues at BCB. The fact of

14   thrice daily visits by cleaning crews, even if undisputed, would

15   not eliminate the force of the plaintiffs’ testimony that the

16   cleaning crews did not do what was needed to clean the cells, or

17   remedy the non-functioning toilets.

       The District Court also granted summary judgment for the

20   defendants on the grounds that the plaintiffs could not

21   establish a claim based on punitive intent; that the individual

22   defendants were entitled to qualified immunity; and that the

23   plaintiffs could not establish that the City had Monell

24   liability. In light of the foregoing rulings, we vacate these

                                    50
 1   rulings as well, although we do not decide how those issues

 2   should be decided using the proper standards, including the

 3   standards for a due process claim for deliberate indifference to

 4   the conditions of confinement described above.

 5        With respect to the plaintiffs’ punitive intent theory, the

 6   District Court should reconsider the dismissal of that theory in

 7   light of the evidence of the objectively serious conditions of

 8   confinement.

 9        With respect to qualified immunity and Monell liability,

10   the District Court based its rulings solely on its finding that

11   no plaintiff could establish an objective due process

12   deprivation. Because we disagree with that conclusion, we vacate

13   the qualified immunity and Monell liability rulings, and remand

14   those issues for further consideration in light of this

15   opinion.18 See, e.g., Jova v. Smith, 

, 418 n.4 (2d

16   Cir. 2009) (per curiam) (remanding the issue of qualified

17   immunity where the district court did not consider the question

18   in the first instance).




     18
       The parties dispute whether letters from the Correctional
     Association of New York---which the defendants contend support
     the conclusion that the individual defendants are entitled to
     qualified immunity---are inadmissible hearsay. The District
     Court never ruled on this issue and, because we do not reach the
     qualified immunity issue, we do not reach the admissibility
     issue.
                                    51
1                              CONCLUSION

2        For the reasons explained above, the judgment is AFFIRMED

3   in part, and VACATED in part, and the case is REMANDED for

4   further proceedings consistent with this opinion.




                                   52