    12-2086-pr
    Toliver v. City of New York 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
    24th day of July, two thousand thirteen.

    PRESENT:
                RALPH K. WINTER,
                GERARD E. LYNCH,
                CHRISTOPHER F. DRONEY,
                      Circuit Judges.
    _____________________________________

    MICHEL TOLIVER,

                                 Plaintiff-Appellant,

                       v.                                                  No. 12-2086-pr

    CITY OF NEW YORK, DEPARTMENT OF
    CORRECTIONS, COMMISSIONER OF THE
    DEPARTMENT, CHIEF OF THE
    DEPARTMENT, GEORGE R. VIERNO CENTER,
    MERCED, CAPTAIN, #211, MAKAS, CAPTAIN,
    ALMANZAR, CORRECTIONS OFFICER, JOHN
    DOE, CORRECTIONS OFFICER, TAPIA,
    CORRECTIONS OFFICER, #12362, MCARDLE,
    CORRECTIONS OFFICER, #17893,*

                                 Defendants-Appellees.



             *
                 The clerk is respectfully directed to amend the caption as shown above.
FOR APPELLANT:                 Michel Toliver, pro se, Romulus, N.Y.

FOR APPELLEES:                 Edward F. X. Hart, Joseph A. Marutollo, and Tahirih Sadrieh,
                               Assistant Corporation Counsel, for Michael A. Cardozo,
                               Corporation Counsel for the City of New York, New York, N.Y.


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

New York (Richard J. Sullivan, J.).

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

DECREED that the judgment of the district court is VACATED and the case is REMANDED

for further proceedings consistent with this order.

       Michel Toliver, proceeding pro se, appeals from the district court’s March 19, 2012 order

granting the defendants’ motion to dismiss his complaint pursuant to Rule 12(b)(6). We review

the grant of a motion to dismiss de novo. Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). We

accept all factual allegations as true and draw all reasonable inferences in the plaintiff’s favor.

Id. We do not, however, accept the complaint’s legal conclusions at face value. Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). Rather, the complaint must plead “enough facts to state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Finally, because Toliver is pro se, we construe his complaint liberally, reading it “to raise the

strongest arguments it suggests.” Walker v. Schult, --- F.3d ----, 2013 WL 2249159, at *3 (2d

Cir. 2013) (internal quotation marks and brackets omitted). We assume the parties’ familiarity

with the underlying facts and procedural history.




                                                  2
       Construed liberally, Toliver’s complaint raises claims under the First and Fourteenth

Amendments, and possibly the Eighth Amendment.1 In evaluating the complaint’s sufficiency,

the district court focused on Toliver’s allegations concerning the events of September 4, 2010

and dismissed all claims arising from those events because Toliver alleged only “‘verbal

harassment,’” which the court held, “‘standing alone, does not amount to a constitutional

deprivation.’” Toliver v. City of N.Y., No. 10 Civ. 7798 (RJS), 2012 WL 914948, at *3

(S.D.N.Y. Mar. 19, 2012) (discussing allegations construed as Eighth Amendment claim),

quoting Cole v. Fisher, 379 F. App’x 40, 43 (2d Cir. 2010); see also id. at *5 (discussing First

Amendment claim). Indeed, Toliver’s allegations concerning September 4, 2010, viewed in

isolation, amount to no more than “[i]nsulting or disrespectful comments,” a “hostile manner,” or

“sarcastic comments,” which, we have held, “without more” are “simply de minimis” acts that

fall “outside the ambit of constitutional protection,” Davis v. Goord, 320 F.3d 346, 353 (2d Cir.

2003) (internal quotation marks omitted).




       1
          In addition to alleging First Amendment and due process violations, Toliver claims that
he suffered cruel and unusual punishment. The district court accordingly treated his complaint
as asserting violations of the Eighth Amendment. See Toliver v. City of N.Y., No. 10 Civ. 7798
(RJS), 2012 WL 914948, at * 3-4 (S.D.N.Y. Mar. 19, 2012). However, while the record in this
case is unclear, Toliver may have been a pretrial detainee at Rikers. If so, the Eighth
Amendment would not apply, as “a pretrial detainee . . . cannot be punished at all,” Johnston v.
Maha, 606 F.3d 39, 41 (2d Cir. 2010), and any excessive force or unconstitutional conditions
claims should be analyzed under the Due Process Clause of the Fourteenth Amendment. See
Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009) (analyzing pretrial detainee’s claim of
deliberate indifference under the Fourteenth Amendment); United States v. Walsh, 194 F.3d 37,
47 (2d Cir. 1999) (holding that a pretrial detainee’s right to be free of excessive force is
protected by the Fourteenth Amendment). We need not determine whether Toliver was a pretrial
detainee, as the precise source of the rights he asserts does not affect our analysis. On remand,
the district court can clarify Toliver’s situation and the applicable legal standards.

                                                 3
       However, Toliver has filed a number of other actions in the Southern District of New

York stemming from his detention at Rikers Island. Those actions involve allegations of

physical assaults, including an allegation that Toliver was forcibly sodomized by Captain

Merced, a defendant in this case. That allegation is clearly referenced in the present complaint.

Toliver’s many complaints also include allegations, echoed throughout his filings in this case, of

unlivable conditions, including deprivations of meals, exercise, showers, running water, and

working toilets.

       Viewed in context and in the light most favorable to Toliver, the officers’ harassing

conduct on September 4, 2010 amounted to more than verbal taunts. The conduct alleged

included explicitly retaliatory threats made by a group of officers that included at least one who

allegedly had already physically abused Toliver. Furthermore, the officers’ threats that they

would “break [Toliver’s] bones” if he attempted to shower were arguably linked to deprivations

of basic necessities. Against the broader factual background sketched by Toliver’s complaint

and related filings, a reasonable jury could find that the officers’ allegedly retaliatory conduct on

September 4, 2010 “would deter a similarly situated individual of ordinary firmness from

exercising his or her constitutional rights,” Dawes v. Walker, 239 F.3d 489, 493 (2d Cir. 2001),

overruled on other grounds by Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002). See Scott v.

Coughlin, 344 F.3d 282, 285, 289 (2d Cir. 2003) (though plaintiff’s allegations were “murky,”

they suggested a “campaign of harassment” actionable under § 1983); Davidson v. Chestnut, 193

F.3d 144, 150 (2d Cir. 1999) (deeming the question of whether alleged retaliatory acts are de

minimis “factual in nature,” and remanding for consideration of whether an “asserted one-day

denial of an opportunity to exercise” was more than de minimis).


                                                  4
       Moreover, Toliver should be given an opportunity to develop his arguments that the more

serious ongoing deprivations and assaults he allegedly suffered throughout his time at Rikers

Island, viewed as a whole, violated the Constitution, see Johnston v. Maha, 460 F. App’x 11, 14

(2d Cir. 2012) (summary order) (remanding for consideration of pretrial detainee’s claims under

the Fourteenth Amendment where district court had erroneously construed claim under the

Eighth Amendment), that any emotional injuries he suffered on September 4, 2010 were ongoing

injuries stemming originally from the alleged May 20, 2010 assault by Merced and others,2 and

that supervisory personnel were, as he claims, aware that particular officers were harassing and

assaulting inmates, see Grullon v. City of New Haven, --- F.3d ---, 2013 WL 3023464, at *7 (2d

Cir. 2013) (pro se allegations that a prisoner sent a letter to a warden complaining of

unconstitutional conditions that were not remedied are sufficient to state a claim for deliberate

indifference against the warden).

       We note that some of Toliver’s more serious allegations involving physical assaults

appear likely to proceed to trial in separate actions. On December 3, 2012, Judge Laura Taylor



       2
         The district court correctly noted that, under 42 U.S.C. § 1997e(e), a prisoner may not
recover “for mental or emotional injury suffered while in custody without a prior showing of
physical injury.” Toliver, 2012 WL 914948, at *4. However, even if Toliver is unable to
establish that any of the injuries complained of in this action stemmed from an incident in which
he suffered physical injuries, Toliver may still recover damages for injuries to his First
Amendment rights, as well as nominal and punitive damages for any other constitutional
violations. See Thompson v. Carter, 284 F.3d 411, 416 (2d Cir. 2002) (“Because Section
1997e(e) is a limitation on recovery of damages for mental and emotional injury in the absence
of a showing of physical injury, it does not restrict a plaintiff’s ability to recover compensatory
damages for actual injury, nominal or punitive damages, or injunctive and declaratory relief.”);
see also Robinson v. Cattaraugus County, 147 F.3d 153, 162 (2d Cir. 1998) (holding that a court
errs when it fails to award nominal damages in a § 1983 action where a constitutional violation is
established); id at 161 (holding that, in a § 1983 action, “punitive damages may be awarded even
in the absence of a compensatory award”).

                                                 5
Swain denied one corrections officer’s motion for summary judgment in case number 10 Civ.

5803, and on January 25, 2013, in case number 10 Civ. 822, Magistrate Judge James C. Francis

recommended that Judge Sullivan partially deny defendants’ motion for summary judgment and

allow claims concerning two separate assaults by Merced and three other officers to proceed to

trial. Toliver’s efforts to establish due process and First Amendment violations in this case will

likely require proving some of the facts at issue in case number 10 Civ. 882, and any effort to

establish unconstitutional prison conditions may require aggregating his allegations of specific

incidents described individually throughout his many complaints. On remand, the district court

should therefore consider consolidating some or all of Toliver’s many cases to allow for more

focused attention on Toliver’s strongest claims and to avoid adjudication of a series of borderline

issues.

          Finally, the district court might consider appointing counsel in this case or in one of the

cases likely to proceed to trial. Toliver has already demonstrated that at least some of the claims

in some of his lawsuits have “some chance of success,” that they are legally complex, and that

they are likely to require “substantial factual investigation” that, as an incarcerated plaintiff, he is

not well-equipped to conduct, Hodge v. Police Officers, 802 F.2d 58, 60-61 (2d Cir. 1986). The

district court might conclude that “these circumstances . . . militate toward appointing counsel,”

id. at 61, who might determine how most usefully to trim, amend and consolidate Toliver’s many

actions. We of course express no view of the factual merits of any of Toliver’s claims, or the

legal merits of any issue not presently before us, and we leave it to the district court in its sound

discretion to determine whether consolidation or the appointment of counsel are in fact in the

interest of justice.


                                                    6
         The defendants’ remaining arguments, which were not considered below, are best

addressed by the district court in the first instance. Accordingly, the judgment of the district

court is VACATED, and the case is REMANDED for further proceedings consistent with this

order.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




                                                 7
