19-59-pr
Horace v. Gibbs


                              UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

              At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 6th day of February, two thousand twenty.

PRESENT:
            JOSÉ A. CABRANES,
            ROBERT D. SACK,
                  Circuit Judges,
            KATHERINE POLK FAILLA,
                  District Judge.*
_____________________________________

JOHN L. HORACE,

                          Plaintiff-Appellant,

                  v.                                                                     19-59-pr

KEVIN GIBBS, Field Parole Officer; DAWN
ANDERSON, Senior Parole Officer,

                          Defendants-Appellees,

Monalto, Parole Polygrapher, New York State
Division of Parole, City of Rochester,

                          Defendants.

_____________________________________


* Judge Katherine Polk Failla, of the United States District Court for the Southern District of New York, sitting by
designation.
FOR PLAINTIFF-APPELLANT:                                John L. Horace, pro se, Marcy, NY.

FOR DEFENDANTS-APPELLEES:                               Barbara D. Understood, Solicitor General,
                                                        Jeffrey W. Lang, Deputy Solicitor General,
                                                        Allyson B. Levine, Assistant Solicitor General
                                                        of Counsel, for Letitia James, Attorney General
                                                        State of New York, Albany, NY.


       Appeal from a judgment of the United States District Court for the Western District of New
York (William M. Skretny, Judge; Hugh B. Scott, Magistrate Judge).

         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED in part and VACATED
in part, and the cause is REMANDED to the District Court for further proceedings consistent with
this order.

        Appellant John L. Horace (“Horace”), pro se, sued Appellees Kevin Gibbs (“Gibbs”) and
Dawn Anderson (“Anderson”) (jointly, “Defendants”), both New York State parole officers, under
42 U.S.C. § 1983, alleging that they handcuffed him too tightly while arresting him for a parole
violation and were deliberately indifferent to his serious medical needs. The District Court granted
Defendants’ motion to dismiss the deliberate indifference claim, but allowed the excessive force
claim to proceed. After discovery, the District Court adopted the magistrate judge’s
recommendation and granted Defendants’ motion for summary judgment on the excessive force
claim. The District Court adopted in full the magistrate judge’s decision that Horace could not
prevail on the claim as a matter of law because the evidence demonstrated that his wrist injuries
were minor and temporary. This appeal followed. Horace also moved in this Court for “money
damages.” We assume the parties’ familiarity with the underlying facts, the procedural history, and
the issues on appeal.

                                                   I.

         We review grants of motions to dismiss and for summary judgment de novo. Apotex Inc. v.
Acorda Therapeutics, Inc., 823 F.3d 51, 59 (2d Cir. 2016) (motion to dismiss), Sotomayor v. City of New
York, 713 F.3d 163, 164 (2d Cir. 2013) (summary judgment). In reviewing a district court’s dismissal
of a claim pursuant to Rule 12(b)(6), we construe the complaint “liberally, accepting all factual
allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.”
Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). In reviewing a district court’s order
granting summary judgment, we determine whether the district court properly concluded that there
was no genuine dispute as to any material fact and that the moving party was entitled to judgment as
a matter of law. See Sousa v. Marquez, 702 F.3d 124, 127 (2d Cir. 2012).
                                                     II.

        To state a constitutional claim of inadequate medical care, a prisoner must allege that a
defendant was deliberately indifferent to his serious medical needs. See Farmer v. Brennan, 511 U.S.
825, 834–35 (1994). A post-conviction-prisoner’s deliberate indifference claim is analyzed under the
Eighth Amendment while the same claim raised by a pretrial detainee is analyzed under the Due
Process Clause of the Fourteenth Amendment. Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017).
Horace was a parolee, and we have not addressed where parolees fall on the continuum. The
District Court concluded that the Fourteenth Amendment applied to Horace’s claim. We need not
decide which Amendment applies to this claim, however, because Horace has failed to state a claim
under the standard imposed by either Eighth or Fourteenth Amendments.

         This standard requires that plaintiffs satisfy what are commonly referred to as the “objective
and subjective prongs.” For both the Eighth and Fourteenth Amendments, the objective prong
poses the same standard. Darnell, 849 F.3d at 32. Under the objective prong, the plaintiff must show
that the alleged deprivation of medical care was “sufficiently serious.” Salahuddin v. Goord, 467 F.3d
263, 279 (2d Cir. 2006) (internal quotation marks omitted). “There is no ‘static test’ to determine
whether a deprivation is sufficiently serious; instead, the conditions themselves must be evaluated in
light of contemporary standards of decency.” Darnell, 849 F.3d at 30. Relevant factors include
“whether a reasonable doctor or patient would find [it] important and worthy of comment, whether
the condition significantly affects an individual’s daily activities, and whether it causes chronic and
substantial pain.” Salahuddin, 467 F.3d at 280 (internal quotation marks and citations omitted).

        The Eighth and Fourteenth Amendments, however, embrace different definitions of the
“subjective” or “mens rea prong.” Darnell, 849 F.3d at 35. The mens rea prong under the Eighth
Amendment requires that the defendant official acted or failed to act “while actually aware of a
substantial risk that serious inmate harm will result.” Salahuddin, 467 F.3d at 280. Under the
Fourteenth Amendment, an official does not act in a deliberately indifferent manner toward an
arrestee unless the official “acted intentionally to impose the alleged condition, or recklessly failed to
act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even
though the defendant-official knew, or should have known, that the condition posed an excessive risk to
health or safety.” Darnell, 849 F.3d at 35 (emphasis added).

        Horace alleged that Gibbs and Anderson were deliberately indifferent to: (1) his low blood
sugar and/or high blood pressure; (2) the swelling and cuts he experienced due to the tightness of
the handcuffs; and (3) the back and knee pain he experienced from sitting in an uncomfortable


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position in the parole car. We agree with the District Court’s conclusion that these conditions are
not sufficiently serious to meet the objective prong. See, e.g., Hathaway v. Coughlin, 37 F.3d 63, 66 (2d
Cir. 1994) (condition must be a “condition of urgency, one that may produce death, degeneration, or
extreme pain”).

           Even if the conditions were sufficiently serious, we also agree with the District Court that
Horace failed to allege that prison officials were deliberately indifferent to his medical needs, as that
prong is defined under either Amendment. To the contrary, Horace admits that Defendants
attended to his alleged medical conditions. Horace alleged that he was “examined and treated” for
“injuries, pain, aches, diabetes” and “pain in his back and knees,” Record on Appeal (“ROA”) doc. 1 at
3, and further alleged that shortly after he was arrested he was “given insulin for his low blood sugar
and kept in the Nurses’ Office under observation.” Id. at 6. Accordingly, the District Court did not
err in dismissing the deliberate indifference claim. See Hill v. Curcione, 657 F.3d 116, 124 (2d Cir.
2011) (plaintiff’s wrist was broken due to the misuse of handcuffs, but his deliberate indifference
claim failed because he received a cast, and there was “no indication . . . that any medical provider
recommended treatment different from the treatment that [Plaintiff] was afforded”).

                                                           III.

        We disagree, however, with the District Court’s resolution of the excessive force claim. In
recommending that the District Court grant Defendants’ motion for summary judgment, the
magistrate judge identified a three-part test that was then widely used among the district courts,
under which courts would consider whether the handcuffs were unreasonably tight; whether the
defendants ignored the plaintiff’s pleas that the handcuffs were too tight; and the degree of injury to
the wrists.1 The magistrate judge then recommended granting summary judgment for the defendants
because there was “a consensus” among district courts “that tight handcuffing does not constitute
excessive force unless it causes some injury beyond temporary discomfort and bruising,” ROA doc.
89 at 6–7, and Horace was “unable to establish any triable issue of fact regarding injuries stemming
from the handcuffing[.]” Id. at 9. In other words, the magistrate judge relied on one factor—the
absence of injury— and did not discuss the other factors, i.e., whether the handcuffs were
unreasonably tight under the circumstances and whether the defendants ignored the plaintiff’s

1 In Graham v. Connor, 490 U.S. 386, 395 (1989), the Supreme Court held that “all claims that law enforcement officers
have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free
citizen should be analyzed under the Fourth Amendment[.]” Soares v. State of Conn., 8 F.3d 917, 921 (2d Cir. 1993) (citing
Graham). Because Horace raised an excessive force claim against the parole officers who arrested him while he was a
“free citizen,” the District Court correctly analyzed his claim as arising under the Fourth rather than the Eighth
Amendment.


                                                            4
complaints. The District Court then accepted the report and recommendation in its entirety,
“including the authorities cited and the reasons given therein.” ROA doc. 95 (Text Order).

         After judgment was entered and while this appeal was pending, this Court decided Cugini v.
City of New York, 941 F.3d 604 (2d Cir. 2019). In that case, we discussed the very three-factor test
that the magistrate judge employed here, and explained that, although the factors may “prove useful
to a district court in assessing the soundness of a handcuff-based excessive force claim,” no one
factor is dispositive, and the test is ultimately one of reasonableness that “is not limited to a factual
checklist.” Id. at 613. Rather, courts must be guided by “a careful balance between the nature and
quality of the intrusion and the countervailing government interests at stake under the
circumstances.” Id. (internal quotation marks and citation omitted). We continued:
         The question is . . . whether an officer reasonably should have known during
         handcuffing that his use of force was excessive. A plaintiff satisfies this requirement if
         either the unreasonableness of the force used was apparent under the circumstances, or the plaintiff
         signaled her distress, verbally or otherwise, such that a reasonable officer would have been aware of her
         pain, or both.

Id. (emphasis added).

         Here, the District Court, having adopted completely the magistrate’s recommendation, erred
by treating one factor—the absence of serious injury—as dispositive, without considering other
factors such as the reasonableness of tight handcuffs under the circumstances, and whether the
defendants ignored the plaintiff’s complaints. And on those factors, there was room for dispute.
Horace was a parolee, and his underlying crimes—rape and sexual assault—were serious. The arrest
that gave rise to the current dispute, however, was for violating his parole by driving a car, having
sex with women other than his wife, and using an herbal supplement for “male enhancement,”
which he was prohibited from using. There was room for doubt as to whether Horace posed a safety
threat, immediate or otherwise, to the parole officers such that tight handcuffing was necessary, and
although there was evidence that Horace once attempted to flee the country while out on bail on
pending charges, there was no indication that during the arrest giving rise to this claim he resisted
arrest or attempted to evade arrest by flight. On the contrary, there was record evidence that Horace
cooperated and was compliant. See Cugini, 941 F.3d at 609 (explaining that courts should examine
“the severity of the crime” and “whether the suspect poses a safety or flight risk or resists arrest”
when determining whether force is excessive).

       There was also a significant dispute of fact as to whether Horace complained that the
handcuffs were too tight. The Defendants submitted declarations averring that Horace never



                                                        5
complained. But Horace testified as his deposition that he repeatedly complained to the defendants
that the handcuffs were too tight and that Defendants refused to loosen them despite his request.

                                          CONCLUSION

         We have considered all of Horace’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the District Court’s dismissal of Horace’s deliberate indifference claim,
VACATE the District Court’s dismissal of the excessive force claim, and REMAND the cause to
the District Court for consideration of the other factors identified in Cugini. Remand will also
provide the District Court an opportunity to determine whether the Defendants are entitled to
qualified immunity. See generally Mullenix v. Luna, 136 S. Ct. 305 (2015) (discussing qualified immunity
in relation to an excessive force claim under the Fourth Amendment).

      In addition, Horace’s motion for “money damages” is DENIED. Each party shall bear their
own costs.

                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk of Court




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