    17-3790-cv
    Gonzalez v. Hasty, 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 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 14th day of November, two thousand eighteen.

    Present:
                DEBRA ANN LIVINGSTON,
                DENNY CHIN,
                      Circuit Judges,
                PAUL A. CROTTY,
                      District Judge.*
    ___________________________________________

    ESTEBAN GONZALEZ,

                                Plaintiff-Appellant,

                        v.                                                                    17-3790-cv

    DENNIS W. HASTY, JAMES SHERMAN, SALVATORE
    LOPRESTI, ORTIZ, INSPECTOR BARRERE, C.O.
    WHITE, #8413,

                      Defendants-Appellees.†
    ___________________________________________


    For Plaintiff-Appellant:                              STEIG OLSON (Cleland B. Welton II, Andrew P.
                                                          Marks, on the brief), Quinn Emanuel Urquhart &
                                                          Sullivan, LLP, New York, NY.

    For Defendants-Appellees:                             MICHAEL SHIH (Chad A. Readler, Richard P.
                                                          Donoghue, Rachel G. Balaban, H. Thomas Byron

    * Judge Paul A. Crotty, of the United States District Court for the Southern District of New York, sitting by
    designation.
    † The Clerk of Court is respectfully instructed to amend the caption as set forth above.
                                             III, on the brief), Civil Division, United States
                                             Department of Justice, Washington, D.C.

       Appeal from an order of the United States District Court for the Eastern District of New

York (Cogan, J.).

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

DECREED that the order of the district court is AFFIRMED.

       Plaintiff Esteban Gonzalez (“Gonzalez”) was convicted in 1994 of being a felon in

possession of a firearm in violation of federal law. In February 1999, while awaiting resentencing

on that charge at the Metropolitan Correctional Center (“MCC”) in Manhattan, Gonzalez assaulted

another inmate, for which he was also convicted. Immediately after the 1999 assault, MCC

officials placed Gonzalez in solitary confinement in MCC’s Special Housing Unit (“SHU”). In

July 2001, Gonzalez was transferred to the Metropolitan Detention Center (“MDC”) in Brooklyn,

where he remained in the MDC SHU. Gonzalez was released into the general population at MDC

in April 2002.

       On May 31, 2005, Gonzalez sued several Bureau of Prisons (“BOP”) officials—including

former Warden Dennis W. Hasty (“Hasty”), Associate Warden James Sherman (“Sherman”),

Captain Salvatore LoPresti (“LoPresti”), and Lieutenants Steven Barrere (“Barrere”), Daniel Ortiz

(“Ortiz”), and Douglas White (“White”) (collectively, “Defendants”)—for money damages in their

individual capacities pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971). Gonzalez alleged violations of the Due Process Clause of the

Fifth Amendment and the Cruel and Unusual Punishments Clause of the Eighth Amendment.

The United States District Court for the Eastern District of New York (Cogan, J.) granted summary

judgment to Defendants on all of Gonzalez’s claims, ruling that Ziglar v. Abbasi, 137 S. Ct. 1843




                                                2
(2017), precluded such claims as a matter of law. Gonzalez appeals. We assume the parties’

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

                                          *      *       *

       Bivens recognized an implied cause of action for damages under the Fourth Amendment to

compensate persons injured by federal officials’ violations of that Amendment’s prohibition

against unreasonable searches and seizures. 403 U.S. at 397. In Carlson v. Green, 446 U.S. 14

(1980), the Court extended the Bivens remedy, holding that the Cruel and Unusual Punishments

Clause of the Eighth Amendment also provides an implied cause of action for damages for federal

jailers’ failure to provide adequate medical treatment to a prisoner. Id. at 19–21. See also Davis

v. Passman, 442 U.S. 228 (1979) (implying a damages remedy under the equal protection

component of the Fifth Amendment’s Due Process Clause). Since Carlson, however, the Court

has imposed substantial limits on implied damages remedies under the Constitution.              Most

recently, in Abbasi, the Court established a stringent new test for extending the Bivens cause of

action to new contexts and made clear that “expanding the Bivens remedy is now a ‘disfavored’

judicial activity.” 137 S. Ct. at 1857 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)).

       In the interim between Carlson and Abbasi, this Court has extended the Bivens remedy on

occasion, and in circumstances arguably relevant to Gonzalez’s claims in the instant appeal. In

the Fifth Amendment context, for example, we authorized such a remedy where a prisoner alleged

that federal jailers deprived him of procedural due process. See Tellier v. Fields, 280 F.3d 69 (2d

Cir. 2000). The parties have briefed and argued the question whether Abbasi abrogates our

precedent extending the Bivens cause of action beyond the three contexts of Bivens, Davis, and

Carlson. We need not address that question, however, to resolve the instant case. Here, even

assuming arguendo that Gonzalez has a valid cause of action after Abbasi, the Defendants are

entitled to qualified immunity, dooming his Due Process and Eighth Amendment claims.


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       Qualified immunity will defeat a federal claim “unless a plaintiff pleads facts showing (1)

that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly

established’ at the time of the challenged conduct.” Ricciuti v. Gyzenis, 834 F.3d 162, 167 (2d

Cir. 2016) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). While qualified immunity

“does not require a case directly on point for a right to be clearly established, existing precedent

must have placed the statutory or constitutional question beyond debate.” White v. Pauly, 137 S.

Ct. 548, 551 (2017) (per curiam) (internal quotation marks omitted). Gonzalez has failed to show

any violation of his clearly established constitutional rights under either Amendment.

Accordingly, his claims were properly dismissed.

   A. Fifth Amendment

       Gonzalez argues that Defendants violated the Fifth Amendment by denying him the

process due in connection with his administrative detention. Prison officials seeking to place an

inmate in solitary confinement must provide the inmate with “some notice of the charges against

him,” “an opportunity to present his views to the prison official[s],” and “an informal,

nonadversary evidentiary review” of the grounds for his detention. Hewitt v. Helms, 459 U.S.

460, 476 (1983). Once detention has begun, the officials must “engage in some sort of periodic

review” of the confinement, taking into account a “wide range of administrative considerations”

like “prison conditions” and ongoing “investigation[s].” Id. at 477 n.9. To be “meaningful,”

this review must consider whether a “justification” for administrative detention “exists at the time

of the review or will exist in the future, and consider new relevant evidence as it becomes

available.” See Proctor v. LeClaire, 846 F.3d 597, 610-11 (2d Cir. 2017).

       The record here does not reflect any conduct by Defendants sufficient to violate Gonzalez’s

clearly established due process rights.    Gonzalez’s confinement began because he violently

assaulted another inmate. Upon his transfer to MDC, White issued an administrative detention


                                                 4
order detaining Gonzalez “for security purposes” and because Gonzalez’s ultimate status was

“pending captain’s review.” App. 357. Gonzalez received a copy of that order at 10:00 p.m.

that night.   Three days later, Barrere reviewed Gonzalez’s file and continued Gonzalez’s

detention because Gonzalez was a “high security” inmate. Sp. App. 6. For approximately the

next three weeks, Barrere reviewed Gonzalez’s records on a weekly basis. After Barrere was

reassigned, Ortiz carried out the required weekly reviews. Every thirty days, LoPresti reviewed

Gonzalez’s status at hearings that Gonzalez himself attended. Furthermore, Hasty reviewed

Gonzalez’s status at weekly meetings attended by Sherman, LoPresti, Barrere, and Ortiz. No

clearly established law could have alerted Defendants that they might violate the Fifth Amendment

merely by detaining Gonzalez in accordance with the relevant BOP regulations, or that the levels

of review required by those regulations were constitutionally deficient.

       Gonzalez attempts to cast doubt on this documentary evidence principally by relying on

his own attestations in his deposition. But summary judgment cannot be defeated by the “mere

existence of a scintilla of evidence” supporting the non-movant’s position, see Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252 (1986), especially when that evidence derives from the non-

movant’s own “contradictory and incomplete testimony” lacking “any corroborating evidence in

the record,” Jeffreys v. City of New York, 426 F.3d 549, 555 (2d Cir. 2005). Gonzalez at several

points in his deposition admitted (or at least acknowledged the possibility) that the meetings and

reviews required by BOP regulations did occur. Additionally, Gonzalez attempts to discredit

LoPresti’s review records by citing LoPresti’s prior conviction for falsification of documents.

But that conviction involved LoPresti’s attempt to conceal evidence of his physical altercation

with an inmate, a vastly different set of circumstances that does not justify a reasonable inference

that LoPresti fabricated the routine review forms at issue here.




                                                 5
       Most of Gonzalez’s remaining evidence regarding his due process claim is proffered to

show that, even if reviews did occur, they were not “meaningful.” See Proctor, 846 F.3d at 609.

Gonzalez relies on deposition testimony from Ortiz, Barrere, and LoPresti stating that he would

not have been released without Warden Hasty’s say-so. But this testimony simply establishes

that Warden Hasty retained the authority to overrule his subordinates, not that those subordinates

failed to exercise their own independent judgment as to Gonzalez’s case. Furthermore, the fact

that MDC officials discussed the status of some several dozen SHU inmates in periodic hour-long

meetings, does not justify an inference that those reviews were not meaningful, much less that

Gonzalez’s clearly established due process rights were violated. Indeed, the determinations to be

made in some—perhaps many—of these reviews may have been obvious given the inmates’ past

or recent conduct. For these reasons, no reasonable jury could have found that Defendants

violated Gonzalez’s clearly established rights under the Due Process Clause.

   B. Eighth Amendment

       Gonzalez next claims that the conditions of his confinement violated the Eighth

Amendment. Such a claim entails both objective and subjective components. First, the alleged

deprivation must be objectively “sufficiently serious,” Wilson v. Seiter, 501 U.S. 294, 298 (1991),

meaning that the prisoner must have been denied “the minimal civilized measure of life’s

necessities,” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). The Eighth Amendment requires

prison officials to provide for an inmate’s “basic human needs—e.g., food, clothing, shelter,

medical care, and reasonable safety,” Helling v. McKinney, 509 U.S. 25, 32 (1993) (internal

quotation marks omitted), and jailers may not expose a prisoner to “an unreasonable risk of serious

damage to his future health,” id. at 35. Second, the prison officials must have acted with a

“sufficiently culpable state of mind,” Wilson, 501 U.S. at 297, which in conditions-of-confinement

cases entails “deliberate indifference” to inmate health or safety, id. at 302–03.


                                                  6
         Gonzalez can identify no clearly established law under which the conditions of his

confinement at MDC violated this standard. 1 For purposes of qualified immunity, rights are

clearly established only if a court can “identify a case where an officer acting under similar

circumstances” was held to have violated the Constitution. White, 137 S. Ct. at 552. Gonzalez

claims that his cell at MDC was unsanitary and that he received only one new mop in response to

an informal grievance he filed. But no clearly established law states that these conditions violate

the Eighth Amendment. Cf. Gaston v. Coughlin, 249 F.3d 156, 165 (2d Cir. 2001) (reversing

grant of summary judgment for Eighth Amendment claim where “mice were constantly entering

[plaintiff’s] cell,” which was “filled with human feces, urine, and sewage water” for consecutive

days). Gonzalez claims that he was given inadequate clothing to protect him from MDC’s “cold

temperatures,” but that allegation does not constitute a clearly established Eighth Amendment

violation either. Cf. Corselli v. Coughlin, 842 F.2d 23, 27 (2d Cir. 1988) (reversing grant of

summary judgment for Eighth Amendment claim where, inter alia, prisoner alleged that he was

exposed for three months to temperatures so low that ice formed in toilet bowl). Nor has

Gonzalez identified any case establishing that the provision of soiled clothing or limited exercise

time, without more specifics, violates the Eighth Amendment.

         Prison officials may violate the Eighth Amendment by exposing a prisoner to “an

unreasonable risk of serious damage to his future health,” Helling, 509 U.S. at 35, such as where

officials “ignore medical conditions that are very likely to cause serious illness and needless

suffering in the future.” Smith v. Carpenter, 316 F.3d 178, 188 (2d Cir. 2003) (internal quotations

omitted). Accordingly, Gonzalez alleges that BOP officials: (1) denied him dental hygiene


1
  Gonzalez’s allegations regarding his treatment at MCC are irrelevant to this appeal. Defendants LoPresti,
Barrere, Ortiz, White, and Sherman were not employed by MCC when the conduct in question occurred. And
given Hasty’s reassignment from MCC to MDC on August 13, 2000, any claims against Hasty for his MCC conduct
are barred by the three-year statute of limitations applicable to Bivens claims. See Gonzalez v. Hasty, 802 F.3d 212,
217 (2d Cir. 2015).

                                                         7
products, causing dental issues that ultimately required surgery three years after his release from

the SHU; and (2) provided him with “sneakers” that were “slip-on and had no laces,” “[a]s a direct

result of” which he later “fell and severely injured” himself. App. 520. The district court rightly

rejected these “conclusory” claims as “not objectively serious enough to raise an Eighth

Amendment violation.” Sp. App. 33. Nothing in the record suggests a reasonable inference

that the alleged denial of dental care and shoelaces was “very likely” to result in “serious illness

and needless suffering.” Smith, 316 F.3d at 188 (internal quotation marks omitted). At a

minimum, no clearly established law holds that an Eighth Amendment violation arises where

prison officials provided an inmate with toothbrush, toothpaste, and unlaced slip-on shoes, and the

inmate suffered injuries.

       Finally, Gonzalez has failed to make out the subjective component of his Eighth

Amendment claim. A Bivens plaintiff cannot rely on respondeat superior to establish the liability

of defendants; instead, he must prove that “each Government-official defendant, through the

official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. Here,

Gonzalez must prove that each defendant acted with the “deliberate indifference” to inmate welfare

required for an Eighth Amendment violation. Wilson, 501 U.S. at 302–03. Yet Gonzalez has

not produced evidence that any of the individual defendants had specific knowledge of the alleged

constitutional violations at issue. Gonzalez points to numerous instances in which he complained

about his treatment to BOP officials, but he never specifies “which conditions [he] relayed to each

defendant, much less the defendant’s response.”        Sp. App. 33.     That absence of evidence

precludes a reasonable inference that any defendant acted with deliberate indifference to the

allegedly unconstitutional conditions of Gonzalez’s confinement.

                                         *       *       *




                                                 8
       We have considered all of Gonzalez’s remaining arguments and find them to be without

merit. For the foregoing reasons, the order of the district court is AFFIRMED.

                                           FOR THE COURT:
                                           Catherine O=Hagan Wolfe, Clerk




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