    16-1131
    Bruno v. City of Schenectady, et al.


                              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 TO 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 16th day of March, two thousand eighteen.

    PRESENT:
                ROBERT A. KATZMANN,
                      Chief Judge,
                AMALYA L. KEARSE,
                      Circuit Judge,
                J. PAUL OETKEN,*
                      District Judge.
    _____________________________________

    Carmencita Bruno,

                                  Plaintiff-Appellant,
                        v.                                                     16-1131

    The City of Schenectady; Thomas Mattice,
    individually and as agent of the City of
    Schenectady; Michael DellaRocco,
    individually and as agent of the City of
    Schenectady; John Doe, #5; Faarstad, as John
    Doe, #4, individually and as agent of the City
    of Schenectady; John Does, #6-10; Village of
    Scotia Firefighters Collectively; Mark
    LaViolette or Kyle Rudolphsen, as John Doe,
    #5, individually and as agents of the EMS
    Department of the County of Schenectady;

    *
      Judge J. Paul Oetken, of the United States District Court for the Southern District of New York,
    sitting by designation.
The Village of Scotia; Police Officers with
the City of Schenectady, as John Doe, #1, #2,
#3, individually and as agents of the City of
Schenectady; Police Officer with the City of
Schenectady, as Jane Doe, #1, individually
and as agent of the City of Schenectady,

                  Defendants-Appellees.1
_____________________________________

FOR APPELLANT:                                          CARMENCITA BRUNO, pro se, Howes Cave, NY.

FOR THE CITY APPELLEES:                                 MICHAEL J. MURPHY (Brienna L. Christiano,
                                                        on the brief), Carter, Conboy, Case, Blackmore,
                                                        Maloney & Laird, P.C., Albany, NY.

FOR THE COUNTY APPELLEES:                               MARC H. GOLDBERG (William D. Christ, on the
                                                        brief), Phillips Lytle, LLP, Albany, NY.

FOR THE VILLAGE APPELLEES:                              JONATHAN M. BERNSTEIN, Goldberg Segalla,
                                                        LLP, Albany, NY.

          Appeal from a judgment of the United States District Court for the Northern District of

New York (Suddaby, C.J.).

          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is VACATED AND REMANDED IN PART

AND AFFIRMED IN PART.

          Plaintiff-Appellant Carmencita Bruno, an attorney proceeding pro se, appeals from a

March 2016 judgment dismissing her case with prejudice, which followed (1) a February 2014

order dismissing most of Bruno’s claims against the Defendants under Federal Rule of Civil

Procedure 12(b), see Bruno v. City of Schenectady, No. 1:12-CV-0285 GTS/RFT, 2014 WL

689664 (N.D.N.Y. Feb. 20, 2014); and (2) a March 2016 order granting summary judgment for



1
    The Clerk of Court is respectfully directed to amend the official caption to conform with the above.
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the Defendants on the remaining claims, see Bruno v. City of Schenectady, No. 1:12-CV-0285

GTS/RFT, 2016 WL 1057041 (N.D.N.Y. Mar. 14, 2016). Bruno brought claims against three

groups of defendants-appellees: the City of Schenectady and seven of its employees (the “City

Defendants” or “City Appellees”), the Village of Scotia and five of its employees (the “Village

Defendants” or “Village Appellees”), and the County of Schenectady and two of its employees

(the “County Defendants” or “County Appellees”). We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

         We review de novo the grant of a motion to dismiss, “constru[ing] the complaint liberally,

accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in

the plaintiff’s favor.” Capital Mgmt. Select Fund Ltd. v. Bennett, 680 F.3d 214, 219 (2d Cir.

2012).    To avoid dismissal, a complaint must contain enough facts “to state a claim to relief that

is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations

omitted).2 This Court also reviews de novo the grant of summary judgment, focusing on whether

the district court properly concluded that there was no genuine dispute as to any material fact and


2
  While the pleadings of pro se litigants are generally construed liberally, pro se litigants who
are attorneys ordinarily “cannot claim the special consideration which the courts customarily
grant to pro se parties.” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 82 n. 4 (2d Cir. 2001)
(internal quotation marks omitted) Bruno nonetheless asserts on appeal that we should make an
exception to this general rule on account of her alleged cognitive impairment. We do not decide
today whether to recognize such an exception because the outcome of this appeal remains the
same either way.


                                                  3
the moving party was entitled to judgment as a matter of law. See Sotomayor v. City of New York,

713 F.3d 163, 164 (2d Cir. 2013). In so doing, this Court construes the evidence in the light most

favorable to the non-moving party and draws all reasonable inferences in his or her favor. Id.

Summary judgment is appropriate “[w]here the record taken as a whole could not lead a rational

trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986).

        Although Bruno pursues a number of claims on appeal, two merit discussion beyond that

provided by the district court.      First, we agree with the district court that Bruno has not

sufficiently alleged, pursuant to Fed. R. Civ. P. 12(b)(6), that either she or her dogs were

improperly “seized.” The Fourth Amendment protects the rights of individuals “to be secure in

their persons, houses, papers, and effects, against unreasonable searches and seizures.”         U.S.

Const. amend. IV.     “[A] person has been ‘seized’ . . . only if, in view of all of the circumstances

surrounding the incident, a reasonable person would have believed that he was not free to leave.”

United States v. Mendenhall, 446 U.S. 544, 554 (1980). “A ‘seizure’ of property occurs when

there is some meaningful interference with an individual's possessory interests in that property.”

United States v. Jacobsen, 466 U.S. 109, 113 (1984).          “To determine whether a seizure is

unreasonable, a court must balance the nature and quality of the intrusion on the individual’s

Fourth Amendment interests against the importance of the governmental interest alleged to justify

the intrusion and determine whether the totality of the circumstances justified the particular sort of

seizure.” Carroll v. Cty. of Monroe, 712 F.3d 649, 651 (2d Cir. 2013) (internal quotation marks,

alteration, and ellipsis omitted).

                                                  4
       To the extent that Bruno alleges that defendants “seized” her dogs, her complaint does not

plausibly allege a Fourth Amendment violation. The dogs were inside her house; she complains

instead that defendants who were outside did not go inside to get them. While Bruno herself was

plausibly alleged to have been restrained from going into the house, such a seizure of Bruno was

not unreasonable. The Supreme Court has held that “[f]ire officials are charged not only with

extinguishing fires, but with finding their causes'” and preserving “evidence.” Michigan v. Tyler,

436 U.S. 499, 510 (1978). Applying these principles here, it was eminently reasonable for fire

officials to temporarily prevent Bruno from entering her home while the fire on the premises was

still under investigation. The restraint of Bruno outside of her home did not constitute the officials’

seizure of the contents of her home.

       On the other hand, we vacate and remand the district court’s conclusion that Bruno has

failed to allege a claim of deliberate indifference to her medical condition in violation of the

Fourteenth Amendment.       To state such a claim, a plaintiff must plead facts “show[ing] that she

had a serious medical condition and that it was met with deliberate indifference.” Cuoco v.

Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000) (internal quotation marks omitted). The first element

requires “a condition of urgency, one that may produce death, degeneration, or extreme pain.”

Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005) (internal quotation marks omitted). The

second element, i.e., that the defendants were deliberately indifferent, has nonetheless evolved

over time. In Caiozzo v. Koreman, 581 F.3d 63 (2d Cir. 2009), we adopted a “subjective” standard

for determining whether a defendant was deliberately indifferent, which required the plaintiff to

plead that the defendant “disregard[ed] a risk of harm of which he [wa]s aware.” Id. at 65 (quoting

                                                  5
Farmer v. Brennan, 511 U.S. 825, 837 (1994)). In Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017),

however, we recognized that the Supreme Court’s decision in Kingsley v. Hendrickson, 135 S. Ct.

2466 (2015) overruled this aspect of Caiozzo and instead mandated that we use an “objective”

standard, i.e., whether a “reasonable person” would appreciate the risk to which the detainee was

subjected.   Id. at 29, 33-35. Accordingly, pursuant to Darnell, 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.” Id. at 35 (emphasis added).

       The district court’s decision dismissing Bruno’s deliberate indifference claim predated our

decision in Darnell and therefore utilized a “subjective” rather than “objective” standard. See

Bruno, 2014 WL 689664, at *18.        Because this standard focused purely on the mindset of the

defendants, rather than on what a “reasonable person” would have believed under the

circumstances, it is now erroneous. See Darnell, 849 F.3d at 29, 33-35. We thus vacate and

remand the district court’s decision dismissing Bruno’s deliberate indifference claim so that it can

be adjudicated under the standard adopted in Darnell.

       We note, however, that Bruno has sufficiently alleged the existence of a “serious medical

condition.” Johnson, 412 F.3d at 403. In dismissing Bruno’s deliberate indifference claim, the

district court reasoned (in part) that she had failed to allege facts plausibly suggesting a serious

medical condition because it was “difficult to conclude that such condition was [her] pre-existing

[TBI], given that she was well enough to be released from a hospital before the fire.” Bruno,

                                                 6
2014 WL 689664, at *18.      While it is true that Bruno was released from the hospital prior to the

fire, she has alleged that the police officers’ actions at the fire scene aggravated her prior TBI and

placed her once again in “a condition of urgency.” See Johnson, 412 F.3d at 403 (internal

quotation marks omitted). Bruno therefore has sufficiently alleged the existence of a “serious

medical condition” at the time of her arrest.3

       We have reviewed all of Bruno’s other claims and conclude that they lack merit,

substantially for the reasons stated by the district court. Accordingly, the VACATE the judgment

as to the deliberate medical indifference claim, REMAND for further proceedings on that claim,

and AFFIRM the judgment in all other respects.

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




3
   The City Defendants additionally argue that, because Bruno first made a deliberate indifference
claim in her opposition to the City Defendants’ motion to dismiss, the claim should not be
considered on appeal. However, although Bruno’s complaint failed to list deliberate indifference
as one of her identified causes of action, she listed the claim in her “Causes of Action in Summary”
paragraph, referred to the claim throughout her complaint, and repeatedly alleged that the officers
at the precinct denied her requests for medical care. We therefore conclude that she has preserved
this claim.


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