Gonzalez v. Hasty

• Citation: 269 F.Supp.3d 45
• Decision Date: 18 September 2017
• Docket Number: 12–cv–5013 (BMC) (SMG)
• Parties: Esteban GONZALEZ, Plaintiff, v. Dennis W. HASTY, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

269 F.Supp.3d 45

Esteban GONZALEZ, Plaintiff,

v.Dennis W. HASTY, et al., Defendants.

12–cv–5013 (BMC) (SMG)

United States District Court, E.D. New York.

Signed September 18, 2017

Alexander A. Reinert, c/o Benjamin N. Cardozo School of Law, Andrew Peter Marks, Quinn Emanuel Urquhart & Sullivan, Kanika Shah, Steig David Olson, Quinn Emanuel Urquhart & Sullivan LLP, New York, NY, Bernard V. Kleinman, Law Office of Bernard V. Kleinman, White Plains, NY, Michael H. Sussman, Sussman & Watkins, Goshen, NY, for Plaintiff.

Dara A. Olds, United States Attorney's Office Eastern District of New York, Rachel G. Balaban, U.S. Attorney's Office, EDNY, Seth D. Eichenholtz, United States Attorneys Office, Brooklyn, NY, James J. Keefe, Mineola, NY, for Defendants.

MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

Plaintiff Esteban Gonzalez filed this action under Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against defendants Warden Dennis W. Hasty, Associate Warden James Sherman, Captain Salvatore LoPresti, Lieutenant Barrere, Lieutenant White, and Lieutenant Ortiz, who are all current or former federal employees of the Bureau of Prisons ("BOP"), alleging Fifth and Eighth Amendment violations.¹ In particular, plaintiff alleges Fifth Amendment due process violations stemming from an alleged failure by defendants to conduct meaningful reviews regarding his placement in the Special Housing Unit ("SHU") of the Metropolitan Detention Center in Brooklyn ("MDC") and the Metropolitan Correction Center in Manhattan ("MCC"). Plaintiff also alleges that defendants violated his Eighth Amendment rights because the conditions of his SHU confinement at the MDC amounted to cruel and unusual punishment by prison officials.

Defendants moved for summary judgment pursuant to Federal Rule of Civil Procedure 56.² Subsequent to plaintiff's filing of his opposition to summary judgment, the Supreme Court decided Ziglar v. Abbasi, ––– U.S. ––––, 137 S.Ct. 1843, 198 L.Ed.2d 290 (2017), and because Ziglar bore directly on plaintiff's Bivens claims, the Court ordered the parties to address the impact of the Supreme Court's ruling. For the reasons that follow, the Court grants summary judgment to defendants as to both plaintiff's Fifth and Eighth Amendment claims.

FACTUAL BACKGROUND

A. Plaintiff's Conviction and Incarceration

On March 2, 1994, plaintiff was arrested for being a felon in possession of a firearm and placed into federal custody at the MCC. On November 1, 1994, a jury sitting in the Southern District of New York found plaintiff guilty of one count of being a felon in possession. Plaintiff was sentenced to 180 months' imprisonment, below the sentencing guidelines range of 235 to 293 months. On April 14, 1997, the Second Circuit affirmed plaintiff's conviction, but pursuant to the Government's cross-appeal, vacated the sentence and remanded for resentencing because "the district court provided no ... explanation" for its departure from the applicable guidelines range. United States v. Gonzalez, 110 F.3d 936, 948 (2d Cir. 1997).

On February 28, 1999, while plaintiff was in federal custody at the MCC awaiting resentencing, he repeatedly stabbed a fellow inmate with a "knife-like" object, which was approximately ten inches long, sometimes colloquially referred to as a shank. Both before and after this assault, while housed in the MCC and other federal institutions, plaintiff was disciplined for other assaults and threatening bodily harm. On the same day as this assault, Lieutenant Mulroney of the MCC issued an administrative detention order that placed plaintiff in administrative detention in the SHU of the MCC, "pending investigation into an incident in which an inmate was assaulted on the unit." This was not the first time, nor would it be the last time, that plaintiff was disciplined while in federal custody for assault or threatening bodily harm, but this particular assault resulted in plaintiff's placement in the MCC SHU.

Broadly speaking, inmates in the SHU are under significantly greater restrictions and have significantly fewer privileges than inmates in the general population of a prison. Inmates in the general population are permitted to walk around, watch television, wash their own clothes, make telephone clothes, and socialize with inmates during the day. Inmates in the SHU are locked in a cell for 23 hours a day; their ability to go outside for recreation is limited to one hour per day Mondays through Fridays; and they have limited access to personal property.

On December 7, 2000, a second jury sitting in the Southern District of New York found plaintiff guilty of the February 1999 assault, specifically (i) assault with intent to do bodily harm, (ii) assault resulting in bodily injury, and (iii) possession of a prohibited object in prison. On January 22, 2002, plaintiff was sentenced to 150 months' imprisonment to run consecutively to any undischarged term of imprisonment. Plaintiff was also ultimately resentenced on the initial felon-in-possession charge and his combined sentence for both of his convictions was 210 months' custody. During that sentencing hearing, the Government revealed new information that (i) staff had found a shank in plaintiff's cell at another facility where he was housed during the pendency of the appeal of the original sentencing, and (ii) in the same period, plaintiff had assaulted another inmate at a separate facility.

B. Continued Custody in the SHU

Plaintiff alleges that he was housed in the MCC SHU from February 28, 1999, until July 24, 2001. On that date, July 24, 2001, he was transferred to the MDC,³ where he was classified as a holdover inmate. Also on that same date, defendant Lieutenant White of the MDC issued an administrative detention order, placing plaintiff in the MDC SHU for "security purposes" pending the MDC Captain's review. Plaintiff does not recall whether he received a copy of this order or not.

On the following day, MDC intake screeners filled out and sent an intake screening memorandum to "all concerned," advising that (i) plaintiff entered the MDC and was placed in the SHU; (ii) plaintiff was transferred from the MCC, where he was federally prosecuted for three counts of assault of an inmate and one count of possession of a weapon while incarcerated; (iii) MCC reports stated that plaintiff had a long history of aggressive behavior, which included three separate instances of spitting on staff; and (iv) plaintiff's disciplinary record included threatening bodily harm, assault, fighting, and interfering with a security device. The MDC intake memorandum was circulated to, among others, defendants Warden Hasty, Associate Warden Sherman, Captain LoPresti, and the SHU lieutenant⁴ at the time.

Plaintiff remained in the MDC until March 20, 2002, at which point he was transferred to a high security prison, USP–Lewisburg, and placed in the SHU there. On April 9, 2002, plaintiff was released on federal writ to the MCC, where he remained in the SHU while in transit. On April 10, 2002, plaintiff arrived back to the MDC, where he again was housed in the SHU from April 10, 2002, through April, 15, 2002. After April 15, 2002, plaintiff was released into the general population but thereafter spent certain other periods of time, which are not at issue in this litigation, in either administrative detention or disciplinary segregation.

C. Reviews of Plaintiff's Custody in the SHU

During the relevant time at the MDC, a team of MDC officials met weekly to review all SHU inmates, including plaintiff, and discuss each inmate's status in special housing. The warden (Warden Hasty),⁵ associate warden (Associate Warden Sherman), captain (Captain LoPresti),⁶ the SHU lieutenant (Lieutenants Barrere and Ortiz—when they were the SHU lieutenants), the heads of various departments, including from the MDC's psychology, medical, facilities, and religious departments, and Special Investigation Service ("SIS") staff all participated in these weekly meetings. The psychologists who attended the weekly meetings provided any updates regarding their reviews of the inmates and discussed issues, if any, they had regarding a particular SHU inmate. These weekly meetings were "generally 30 to 60 minute[s]" long.

The purpose of the meetings was (i) to ensure that all SHU inmates were receiving their required reviews, including the 7–day and 30–day reviews required under relevant BOP regulations; (ii) to address any questions regarding the SHU inmates; and (iii) to review whether the inmate's continued housing in the SHU was appropriate. Although plaintiff has stated (and defendants do not dispute) that the SHU could hold just under 100 inmates, plaintiff offers no information as to how many inmates were in the SHU during the relevant time.

On July 27, 2001, or three days after plaintiff's transfer to the MDC, defendant Lieutenant Barrere of the MDC conducted a record review of plaintiff's placement in administrative detention in the MDC SHU. At that time, as the form reflects, Lieutenant Barrere continued plaintiff's housing in SHU because plaintiff was a "high security" inmate.⁷ Thereafter, Lieutenant Barrere conducted weekly record reviews of plaintiff's placement in the SHU on August 7, 2001; August 14, 2001; and August 21, 2001; and after each review, he made the decision to continue plaintiff's detention in the SHU as a "high security" inmate.

On August 23, 2001, MDC psychologist Parry Hess conducted a psychological review of plaintiff and prepared a written assessment for the SRO, Captain LoPresti. In connection with this psychological review, Dr. Hess sought to interview plaintiff, but plaintiff refused to be interviewed. Dr. Hess concluded that plaintiff presented a potential risk of harm to others. In his written assessment, Dr. Hess noted that a precise prediction of dangerousness was difficult to render, and therefore the assessment should be revisited and modified over...