11-3765
Jabbar v. Fischer



                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT

                           August Term 2011

    (Submitted:      May 31, 2012        Decided:   June 21, 2012)

                          Docket No. 11-3765


                          MUHAMMAD A. JABBAR,

                                            Plaintiff-Appellant,

                                    v.

BRIAN FISCHER, COMMISSIONER OF NEW YORK STATE PRISONS, RAYMOND J.
 CUNNINGHAM, SUPERINTENDENT OF WOODBOURNE CORRECTIONAL FACILITY,
SCOTT J. CARLSEN, SUPERINTENDENT OF ULSTER CORRECTIONAL FACILITY,

                                            Defendants-Appellees.

Before:
               WINTER, CHIN, and DRONEY, Circuit Judges.

             Appeal from a judgment of the United States

District Court for the Southern District of New York (Jones,

J.) dismissing a complaint brought by a state inmate who

alleged violations of his constitutional rights when he was

transported on a bus without a seatbelt and was injured when

thrown from his seat.

             AFFIRMED.
                     Muhammad A. Jabbar, pro se, Woodbourne,
                          New York.

                     Barbara D. Underwood, Solicitor General,
                          Michael S. Belohlavek, Senior
                          Counsel, Marion R. Buchbinder,
                          Assistant Solicitor General, for
                          Eric T. Schneiderman, Attorney
                          General of the State of New York,
                          New York, New York, for Defendants-
                          Appellants.



PER CURIAM:

            Plaintiff-appellant Muhammad Abdul Jabbar, a state

inmate proceeding pro se, alleges that defendants-appellees

violated his constitutional rights under the Eighth and

Fourteenth Amendments by transporting him on a bus without a

seatbelt.     The United States District Court for the Southern

District of New York (Jones, J.) dismissed the action.

Jabbar appeals.    We hold that the failure of prison

officials to provide seatbelts to prison inmates does not,

standing alone, violate the Eighth or Fourteenth Amendments.

Accordingly, we affirm.




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                           BACKGROUND

          The following facts are drawn from Jabbar's

complaint filed on May 26, 2010.    We construe the complaint

liberally, accepting all factual allegations in the

complaint as true, and drawing all reasonable inferences in

Jabbar's favor.   See Chambers v. Time Warner, Inc., 282 F.3d

147, 152 (2d Cir. 2002).   Further, we construe a pro se

complaint "to raise the strongest arguments [it]

suggest[s]."   Pabon v. Wright, 459 F.3d 241, 248 (2d Cir.

2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.

1994)).

          On April 24, 2009, Jabbar, an inmate incarcerated

at Woodbourne Correctional Facility in Woodbourne, New York

("Woodbourne"), was transported to and from a medical

appointment at an outside facility.     He was transported on

an Ulster Correctional Facility ("Ulster") "hub bus" that

did not have seatbelts for inmate passengers (although

seatbelts were provided for corrections officers).     During

transport, Jabbar was shackled from his wrists to his

ankles.   The bus made a forceful turn and Jabbar, who had


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fallen asleep, was thrown from his seat.    He hit his head on

another seat and was knocked unconscious.    He sustained

injuries to his face, head, and back.

         Jabbar sued defendants -- the Commissioner of New

York State Prisons, the Superintendent of Woodbourne, and

the Superintendent of Ulster -- contending that their

failure to provide a bus seatbelt violated his Eighth and

Fourteenth Amendment rights.    Jabbar alleged that

defendants:   knew that the Ulster hub bus did not have

seatbelts for inmates, had the authority to order the use of

buses with seatbelts, and failed to provide seatbelts on the

bus for inmates.

         On January 7, 2011, defendants moved to dismiss.

On August 10, 2011, the district court granted the motion.

         This appeal followed.

                          DISCUSSION

         We review de novo a district court's grant of a

Rule 12(b)(6) motion to dismiss.     See Chambers, 282 F.3d at

152; see also Fed. R. Civ. P. 12(b)(6).    "To survive a

motion to dismiss, a complaint must contain sufficient


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factual matter, accepted as true, to state a claim to relief

that is plausible on its face."    Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (internal quotation marks omitted).

         We hold that the failure of prison officials to

provide inmates with seatbelts on prison transport buses

does not, standing alone, violate the Eighth or Fourteenth

Amendments.   Accordingly, we affirm the district court's

dismissal.

I.   Applicable Law

         The Eighth Amendment's prohibition against cruel

and unusual punishment requires prison conditions to be

"humane," though not necessarily "comfortable."    Gaston v.

Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) (internal

quotation marks omitted) (citing Farmer v. Brennan, 511 U.S.

825, 832 (1994), and Rhodes v. Chapman, 452 U.S. 337, 349

(1981)); see U.S. Const. amend. VIII.   To establish an

Eighth Amendment violation, an inmate must show:    "(1) a

deprivation that is objectively, sufficiently serious that

he was denied the minimal civilized measure of life's

necessities[;] and (2) a sufficiently culpable state of mind


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on the part of the defendant official, such as deliberate

indifference to inmate health or safety."    Gaston, 249 F.3d

at 164 (citing Farmer, 511 U.S. at 834) (internal quotation

marks omitted).

            As to the objective element, there is no "static

test" to determine whether a deprivation is sufficiently

serious; "[t]he conditions themselves must be evaluated in

light of contemporary standards of decency."    Blissett v.

Coughlin, 66 F.3d 531, 537 (2d Cir. 1995) (citing Rhodes,

452 U.S. at 346).    We have held that prisoners may not be

deprived of their "'basic human needs -- e.g., food,

clothing, shelter, medical care, and reasonable safety'" --

and they may not be exposed "to conditions that 'pose an

unreasonable risk of serious damage to [their] future

health.'"    Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir.

2002) (per curiam) (quoting Helling v. McKinney, 509 U.S.

25, 32, 35 (1993)).

            As for the subjective requirement, deliberate

indifference requires "more than mere negligence."     Farmer,

511 U.S. at 835.    The prison official must know of, and


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disregard, an excessive risk to inmate health or safety.

Id. at 837.    "[A]n official's failure to alleviate a

significant risk that he should have perceived but did not

. . . [cannot] be condemned as the infliction of

punishment."    Id. at 838.

         To establish a due process violation of the

Fourteenth Amendment, an inmate must show that a government

official made a deliberate decision to deprive him of his

life, liberty, or property.     See Daniels v. Williams, 474

U.S. 327, 331 (1986); see also U.S. Const. amend. XIV.

Merely negligent conduct does not give rise to claims under

the Fourteenth Amendment.     See Daniels, 474 U.S. at 331,

333.

II. Application

         We have not yet addressed whether the Eighth or

Fourteenth Amendments are violated when a prison official

does not provide a bus seatbelt to a prison inmate in

transport.    Other courts have rejected these claims.   The

Eighth and Eleventh Circuits have held that the failure to

provide an inmate without a seatbelt does not, standing


                               -7-
alone, give rise to a constitutional claim.     See Spencer v.

Knapheide Truck Equip. Co., 183 F.3d 902, 906-07 (8th Cir.

1999); Smith v. Sec. for Dep't of Corrs., 252 F. App'x 301,

303-04 (11th Cir. 2007) (per curiam); cf. Brown v. Fortner,

518 F.3d 552, 559-62 (8th Cir. 2008) (holding that driving

recklessly while transporting shackled inmate without

seatbelt despite requests to slow down constituted

unreasonable and substantial risk of harm violating Eighth

Amendment).    The Fifth and Tenth Circuits agree, albeit in

non-precedential decisions.    See Cooks v. Crain, 327 F.

App'x 493, 494 (5th Cir. 2009) (per curiam); Dexter v. Ford

Motor Co., 92 F. App'x 637, 641-43 (10th Cir. 2004) (order

and judgment).     Numerous district courts have also rejected

such claims.     See e.g., Carrasquillo v. City of New York,

324 F. Supp. 2d 428, 437-38 (S.D.N.Y. 2004); Shepard v.

Daviess Cty. Det. Ctr., No. 10-cv-105, 2011 WL 9342, at *6

(W.D. Ky. Jan. 3, 2011); Otero v. Catalogne, No. 08-282,

2010 WL 3883444, at **7-9 (W.D. Pa. Sept. 28, 2010); Walls

v. Kaho, No. 06-cv-188, 2009 WL 901917, at *2 (S.D. Miss.

Mar. 31, 2009); Young v. Dep't of Corrs., No. 04-10309, 2007


                               -8-
WL 2214520, at **4-6 (E.D. Mich. July 27, 2007); Mojet v.

Transp. Driver, No. 06-cv-321, 2006 WL 3392944, at *2 (N.D.

Ind. Nov. 22, 2006); Williams v. City of New York, No. 03-

cv-5342, 2005 WL 2862007, at **2-3 (S.D.N.Y. Nov. 1, 2005);

Lopez v. N. Ariz. Coca-Cola Bottling Co., No. 99-cv-192,

2001 WL 1105129, at *1 (D. Ariz. Sept. 12, 2001).

         For the reasons that follow, we also hold that the

failure of prison officials to provide inmates with

seatbelts does not, without more, violate the Eighth or

Fourteenth Amendments.

         First, as for the Eighth Amendment's objective

requirement, the failure to provide a seatbelt is not, in

itself, "sufficiently serious" to constitute an Eighth

Amendment violation.      See Gaston, 249 F.3d at 164 (citing

Farmer, 511 U.S. at 834).     A bus seatbelt is not a "life[ ]

necessit[y]."   See id.    While seatbelts may offer

"reasonable safety" for the general public, see Phelps, 308

F.3d at 185, on a prison bus their presence could present

safety and security concerns, see Spencer, 183 F.3d at 907;

Carrasquillo, 324 F. Supp. 2d at 437 (citing Spencer, 183


                                -9-
F.3d at 907).    Inmates, even handcuffed or otherwise

restrained, could use seatbelts as weapons to harm officers,

other passengers, or themselves.      See Spencer, 183 F.3d at

907; Carrasquillo, 324 F. Supp. 2d at 437 (citing Spencer,

183 F.3d at 907).   A correctional facility's use of vehicles

without seatbelts to transport inmates, when based on

legitimate penological concerns rather than an intent to

punish, is reasonable.    Spencer, 183 F.3d at 907; see

Carrasquillo, 324 F. Supp. 2d at 437-38.

         Second, as for the Eighth Amendment's subjective

requirement, because the absence of seatbelts on inmate bus

transport is itself not an excessive risk, without more,

"deliberate indifference" –- that is, that defendants knew

of, and disregarded, an excessive risk to inmate safety –-

cannot be plausibly alleged.     See Farmer, 511 U.S. at 837.

         Third, for the reasons stated above, under the

Fourteenth Amendment, failure to provide an inmate with a

seatbelt does not constitute a deprivation of life, liberty,

or property.    See Daniels, 474 U.S. at 331, 333.




                               -10-
            Here, Jabbar did not allege that there was any

intent to punish or other improper motivation for the lack

of inmate seatbelts on the Ulster hub bus, and we cannot

reasonably infer such intent.     See Spencer, 183 F.3d at 907

("When a policy lacks an express intent to punish, as this

one does, we may infer such an intent if the policy is

either unrelated to a legitimate penological goal or

excessive in relation to that goal.").      Jabbar did not

allege that defendants knew of any excessive risk to inmate

safety.     See Farmer, 511 U.S. at 837.   Indeed, the complaint

alleged "gross negligence" and a "fail[ure] to supervise

adequately," rather than an intent to punish.      (Compl. at

6).   Thus, without more, the complaint failed to allege

sufficient facts to state a plausible claim.      See Iqbal, 556

U.S. at 678.    The district court did not err in dismissing

the complaint.

                            CONCLUSION

            Accordingly, the judgment of the district court is

AFFIRMED.




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