    17-1093
    Valdiviezo v. Boyer


                           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 ASUMMARY 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 18th day of October, two thousand eighteen.

    PRESENT:
                ROBERT A. KATZMANN,
                      Chief Judge,
                RAYMOND J. LOHIER, JR.,
                      Circuit Judge,
                TIMOTHY C. STANCEU,
                      Judge.*
    __________________________________________

    Mario Valdiviezo,

                            Plaintiff-Appellant,

                      v.                                                       17-1093

    Captain Boyer, George R. Vierno Center, City of
    New York, Ayou, Correction Officer, George R.
    Vierno Center, John Doe, Emergency Medical
    Response, George R. Vierno Center, Jane Doe,
    Emergency Medical Response, George R. Vierno
    Center,

                            Defendants-Appellees,


    * Timothy C. Stanceu, Chief Judge of the United States Court of International Trade, sitting by
    designation.
George R. Vierno Center, G.R.V.C., Rikers Island,
George Motchan Detention Center, G.M.D.C.,
Rikers Island,

                       Defendants.

__________________________________________


FOR PLAINTIFF-APPELLANT:                              Mario Valdiviezo, pro se, Coxsackie, NY.

FOR DEFENDANTS-APPELLEES:                             Jane L. Gordon, Qian Julie Wang, Assistant
                                                      Corporation Counsels, for Zachary W.
                                                      Carter, Corporation Counsel of the City of
                                                      New York, New York, NY.

       Appeal from a judgment of the United States District Court for the Southern District of New

York (Nathan, J.).

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

DECREED that the judgment of the district court is AFFIRMED in part and VACATED AND

REMANDED in part.

       Appellant Mario Valdiviezo, pro se, sued New York City (“the City”), two corrections

officers, and two medical staff members under 42 U.S.C. § 1983 for unconstitutional conditions of

confinement and deliberate indifference to his serious medical needs. The district court dismissed

the complaint for failure to state a claim. We assume the parties’ familiarity with the underlying

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

       “We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6),

construing 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). The complaint must plead “enough facts to state a claim to relief

that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although a court must accept as true all the factual

allegations in the complaint, that requirement is “inapplicable to legal conclusions.” Iqbal, 556

U.S. at 678.

    I.      Municipal Liability

         Municipalities, and individuals sued in their official capacity, are liable under § 1983 only

if the challenged conduct was “pursuant to a municipal policy or custom,” Patterson v. Cty. of

Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004) (citing Monell v. Dep’t of Soc. Serv. of the City of

N.Y., 436 U.S. 658, 692-94 (1978)), or caused by a “failure to train,” Segal v. City of New York, 459

F.3d 207, 219 (2d Cir. 2006) (citing City of Canton v. Harris, 489 U.S. 378 (1989)). To satisfy

Monell’s policy or custom requirement, a plaintiff must show either that the challenged practice

“was so persistent or widespread as to constitute a custom or usage with the force of law,” or that

the “practice of subordinate employees was so manifest as to imply the constructive acquiescence

of senior policy-making officials.” Littlejohn v. City of New York, 795 F.3d 297, 315 (2d Cir.

2015) (internal quotation marks omitted). To establish municipal liability based on a failure to

act, a plaintiff must show “that defendants knew to a moral certainty that the City would confront

a given situation; the situation presented the City with a difficult choice or there was a history of its

mishandling the situation; and the wrong choice by the City would frequently cause the deprivation

of plaintiffs’ rights.” Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007) (citing Walker v.

City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992)). A “general and conclusory allegation”

of a municipal policy or custom fails to state a facially plausible Monell claim. Littlejohn, 795

F.3d at 315.

         Valdiviezo alleged that the City failed to correct the unsanitary conditions at Rikers, despite

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receiving numerous grievances from multiple inmates.               The constitutionality of housing

conditions is assessed by both the severity and duration of the violation. Darnell v. Pineiro, 849

F.3d 17, 30 (2d Cir. 2017). Valdiviezo plausibly alleged that the unsanitary conditions of the

showers at Rikers reached an unconstitutional level. A liberal reading of Valdiviezo’s complaint

also indicates that the City failed to adequately correct these conditions for at least eighteen months,

even after it received several grievances from multiple inmates and attempted some remedy—

namely inspecting, painting, and handwashing the showers. A response that is “so patently

inadequate to the task [may] amount to deliberate indifference.” Reynolds, 506 F.3d at 192-93.

Valdivezo’s allegation that City officials responded to the grievances by inspecting the showers at

least suggests that the City knew “to a moral certainty,” id. at 192, about the shower conditions in

Valdiviezo’s unit. Valdiviezo will ultimately have to provide evidence that the City’s response

was “patently inadequate to the task,” but based on the facts alleged, it is too early for us to conclude

as a matter of law that he will be unable to do so.

         Valdiviezo also alleged that the City failed to implement facility rules and regulations and

failed to properly train and supervise its corrections officers and medical personnel. Valdiviezo

did not allege facts showing that corrections officers regularly failed to implement rules and

regulations or that the City failed to train corrections officers or medical personnel. Nor did he

allege facts showing that there was a history of medical staff using detainees to transport patients.

Therefore, these allegations were insufficient to state a § 1983 claim.

   II.      Individual Liability

         The district court erroneously analyzed Valdiviezo’s deliberate indifference to medical

needs claims under the Eighth Amendment. Valdiviezo’s claims should be analyzed under the

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Fourteenth Amendment because he was a pretrial detainee at the time of alleged incidents. See

Darnell, 849 F.3d at 29 (“A pretrial detainee’s claims are evaluated under the Due Process Clause

because, [p]retrial detainees have not been convicted of a crime and thus may not be punished in

any manner—neither cruelly and unusually nor otherwise.” (internal quotation marks omitted)).

A pretrial detainee must satisfy two prongs to prove a deliberate-indifference claim. First, “an

‘objective prong’ showing that the challenged conditions were sufficiently serious to constitute

objective deprivations of the right to due process.”      Id. at 29.   Second, a subjective prong

“showing that the officer acted with at least deliberate indifference to the challenged conditions.”

Id.

       Valdiviezo asserted that his medical care was inadequate in two ways. First, he alleged

that Ayou and Boyer delayed calling for medical help, which did not arrive for an hour. Second,

Valdiviezo alleged that medical personnel directed detainees to carry him out of the showers,

causing him to be dropped twice.

       Although the district court analyzed the delay claim under the wrong amendment, its

dismissal of the claim was nonetheless correct. For Fourteenth Amendment claims, this Court

applies the same standard as the Eighth Amendment to determine whether an alleged action is

objectively serious enough to be a constitutional violation. Cf. Darnell, 849 F.3d at 30 (applying

Eighth Amendment objective standards to a Fourteenth Amendment conditions-of-confinement

claim). In order to meet the objective prong for a claim of deliberate indifference to serious

medical needs, the plaintiff must show that he actually did not receive adequate care and that the

inadequacy in medical care was sufficiently serious. Salahuddin v. Goord, 467 F.3d 263, 280 (2d

Cir. 2006). When the basis for a prisoner’s claim “is a temporary delay or interruption in the

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provision of otherwise adequate medical treatment,” this Court examines whether the delay itself

created a risk of harm. Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003). In considering

whether a delay caused a risk of harm, a court may consider “[t]he absence of adverse medical

effects or demonstrable physical injury.”      Id. at 187.   Although Valdiviezo alleged that he

remained in pain during the hour-long wait, he does not allege that the delay exacerbated his injuries

from his initial fall. Therefore, the district court correctly dismissed Valdiviezo’s claim based on

a delay in his medical care.

       However, the district court erred in holding that the medical staff’s orders to have detainees

carry Valdiviezo—causing two drops to the floor, additional pain, and loss of consciousness—did

not violate the Fourteenth Amendment.         “In cases where the inadequacy is in the medical

treatment given,” the analysis focuses on the inadequacy itself. Salahuddin, 467 F.3d at 280

(citing Smith, 316 F.3d at 185). The medical staff’s decision to permit detainees, who were likely

untrained, to carry a man complaining of a neck and back injury could constitute inadequate care,

as it could have resulted in more serious injury. See id. (“[F]ailing to take reasonable measures in

response to a medical condition can lead to liability.” (internal quotation marks omitted)); Smith,

316 F.3d at 188 (a deliberate indifference claim may be based on “conduct . . . exposing an inmate

to an unreasonable risk of future harm”).         And Valdiviezo alleged that his injuries were

exacerbated as a result of the two drops; after the first fall, he was in more pain, and he lost

consciousness after the second fall.

       Further, the allegations are sufficient to plausibly raise an inference that the medical staff

had the requisite mens rea for a Fourteenth Amendment deliberate-indifference claim. Under the

Fourteenth Amendment, the defendant’s state of mind is evaluated objectively. Darnell, 849 F.3d

                                                 6
at 36. A plaintiff must show “that the defendant-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. Here, after Valdiviezo was

dropped once, causing him to cry out in pain, the medical staff was aware that there was a risk that

Valdiviezo would be dropped again. Accordingly, Valdiviezo sufficiently alleged that the two

members of the medical staff acted recklessly when they ordered the detainees to pick him up again.

We therefore vacate and remand with regard to this claim.

       We have considered all of Valdiviezo’s remaining arguments and find them to be without

merit. For the foregoing reasons, the judgment of the district court is AFFIRMED with regard to

the claims against the two corrections officers and all but one of the claims against the City. It is

VACATED AND REMANDED with regard to the claim against the two unknown medical staff

members and the claim against the City regarding the unsanitary conditions of the showers.

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




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