Gonzalez v. Hasty, 111418 FED2, 17-3790-cv

Docket Nº:17-3790-cv
Party Name:Esteban Gonzalez, Plaintiff-Appellant, v. Dennis W. Hasty, James Sherman, Salvatore LoPresti, Ortiz, Inspector Barrere, CO. White, #8413, Defendants-Appellees [†]
Attorney: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 III, on the brief), Civil Division, Un...
Judge Panel:Present: Debra Ann Livingston, Denny Chin, Circuit Judges, Paul A. Crotty, District Judge.
Case Date:November 14, 2018
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Esteban Gonzalez, Plaintiff-Appellant,

v.

Dennis W. Hasty, James Sherman, Salvatore LoPresti, Ortiz, Inspector Barrere, CO. White, #8413, Defendants-Appellees [†]

No. 17-3790-cv

United States Court of Appeals, Second Circuit

November 14, 2018

UNPUBLISHED OPINION

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 14th day of November, two thousand eighteen.

Appeal from an order of the United States District Court for the Eastern District of New York (Cogan, J.)

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 III, on the brief), Civil Division, United States Department of Justice, Washington, D.C.

Present: Debra Ann Livingston, Denny Chin, Circuit Judges, Paul A. Crotty, District Judge. [*]

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 (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.

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...

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