Darnell v. City of New York

15-2870
Darnell v. City of New York
UNITED STATES COURT OF APPEALS
F OR THE S ECOND C IRCUIT
____________________________________
August Term, 2016
Argued: September 22, 2016 Decided: February 21, 2017
Docket No. 15-2870
____________________________________
K EVIN DARNELL , GERMAIN CANO , MICHAEL GLENN , MICHAEL MC GHEE , KERRY SCOTT ,
TRAVIS GORDAN , G REGORY MAUGERI , DMITRIY MILOSLAVSKIY , STEVEN MODES , J ACQUELINE
GUARINO , MICHAEL SPALANGO , WESLEY JONES , RAYMOND TUCKER , Y VONNE MING , N ANCY
VIGLIONE , K EITH JENNINGS , ELLI V IKKI , INDIVIDUALLY AND ON BEHALF OF A CLASS OF
ALL OTHERS SIMILARLY SITUATED , ERIC CEPHUS , PHILLIP S INGLETON , DEBORAH
GONZALEZ ,
Plaintiffs – Appellants,
Nakaita Moore, Jahmel Lawyer, Peter Eppel,
Plaintiffs,
—v.—
RAFAEL P INEIRO , WILLIAM TOBIN , CITY OF NEW Y ORK , KENNETH KOBETITSCH ,
Defendants – Appellees,
Deputy Commissioners John Does, 1-5, (representing the Deputy
Commissioners who supervised the operation of Brooklyn Central
Booking from June 12, 2010 to the present), Police Officers John
Does, 1-5, (representing the commanding officers of Brooklyn
Central Booking from June 12, 2010 to the present), Police
Commissioner Raymond Kelly,
Defendants.†
___________________________________
† The Clerk of Court is respectfully requested to amend the
caption to conform to the above.

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2
Before: L EVAL AND LOHIER , Circuit Judges, and K OELTL , District
Judge. *
Twenty state pretrial detainees brought individual § 1983 1
claims in the same complaint alleging that the City of New York 2
and the supervisory officers of a pre-arraignment holding 3
facility (collectively, “the defendants”) were deliberately 4
indifferent to allegedly unconstitutional conditions of 5
confinement at the holding facility. The United States District 6
Court for the Eastern District of New York (Kuntz, J.) granted 7
summary judgment in favor of the defendants, denied the 8
detainees’ motion to reconsider that judgment, and denied a 9
subsequent motion to reconsider the denial of the motion for 10
reconsideration. The detainees appealed. 11
The detainees concede that certain claims were properly 12
dismissed. As to those claims, we affirm the District Court’s 13
judgment. However, because there were genuine disputes as to 14
material facts with respect to the challenged conditions of 15
confinement, the individual defendants’ knowledge of those 16
conditions, and the failure to remedy those conditions, as well 17
as to the liability of the City of New York, we vacate the 18
judgment as to the remaining claims that were dismissed and 19
remand for further proceedings. 20
* Judge John G. Koeltl, of the United States District Court for
the Southern District of New York, sitting by designation.

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3
______________ 1
SCOTT A. KORENBAUM (Stephen Bergstein, on the brief), Bergstein 2
& Ullrich, LLP, Chester, NY, for Plaintiffs-Appellants. 3
4
ZACHARY W. CARTER, (Richard Dearing, Devin Slack, Kathy Chang 5
Park, on the brief), Corporation Counsel of the City of New 6
York, New York, NY, for Defendants-Appellees. 7
______________ 8
John G. Koeltl, District Judge: 9
This is a case about unconstitutional conditions of 10
confinement for pretrial detainees. Twenty state pretrial 11
detainees (“the plaintiffs”) 1 arrested on separate dates between 12
July 10, 2011, and July 23, 2013, brought individual § 1983 13
claims in the same complaint against the City of New York (the 14
“City”), New York City Police Department (“NYPD”) Captain 15
Kenneth Kobetitsch, and NYPD Captain William Tobin (the 16
“individual defendants”) (collectively, “the defendants”). 2 The 17
1 The plaintiffs are Kevin Darnell, Germain Cano, Michael Glenn,
Michael McGhee, Kerry Scott, Travis Gordan, Gregory Maugeri,
Dmitriy Miloslavskiy, Steven Modes, Jacqueline Guarino, Michael
Spalango, Wesley Jones, Raymond Tucker, Yvonne Ming, Nancy
Viglione, Keith Jennings, Elli Vikki, Eric Cephus, Phillip
Singleton, and Deborah Gonzalez. Three additional plaintiffs
initially brought claims against the defendants, but, prior to
this appeal, two voluntarily dismissed their claims without
prejudice, and one passed away.
2 The John Doe defendants named in the original complaint are no
longer parties to this action because the plaintiffs did not
pursue claims against them in the amended complaints. During the
proceedings before the District Court, the plaintiffs
voluntarily dismissed with prejudice the claims against former
NYPD Commissioner Raymond Kelly. By letter dated September 22,
2016, the plaintiffs abandoned the appeal of the judgment
dismissing their claims against Raphael Pineiro, the former

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4
plaintiffs alleged that they were each subjected to appalling 1
conditions of confinement while held pre-arraignment at Brooklyn 2
Central Booking (“BCB”) with deliberate indifference to the 3
deprivation of their Fourteenth Amendment due process rights. 4
Because BCB was only a pre-arraignment holding facility, no 5
plaintiff was held at BCB for more than twenty-four hours. 6
The United States District Court for the Eastern District 7
of New York (Kuntz, J.) granted summary judgment to the 8
defendants, reasoning that the plaintiffs failed to meet both 9
the objective and subjective requirements for a claim of 10
unconstitutional conditions of confinement based on a theory of 11
deliberate indifference. The District Court concluded that, with 12
respect to the “objective prong,” no plaintiff could establish 13
an objectively substantial deprivation of any constitutional 14
rights because no plaintiff actually suffered a serious injury, 15
or was “regularly denied his or her basic human needs or was 16
exposed to conditions that posed an unreasonable risk of serious 17
damage to his or her future health” for more than twenty-four 18
hours; nor could any plaintiff establish the “subjective prong” 19
of a deliberate indifference claim by proving that the 20
individual defendants were actually aware of any dangerous 21
conditions, or that the individual defendants acted unreasonably 22
First Deputy Commissioner of the NYPD. The judgment dismissing
the claims against Mr. Pineiro is accordingly affirmed.

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5
in responding to any such conditions; nor, for similar reasons, 1
could the plaintiffs establish that the individual defendants 2
acted with punitive intent. See Cano v. City of New York, 119 F. 3
Supp. 3d 65, 74, 82, 85-86 (E.D.N.Y. 2015). Because no plaintiff 4
could prove a constitutional deprivation, the District Court 5
also held that the individual defendants were entitled to 6
qualified immunity, and that the plaintiffs could not establish 7
that the City was liable pursuant to Monell v. Dep’t of Soc. 8
Servs. of City of New York, 436 U.S. 658, 690–91 (1978). See 9
Cano, 119 F. Supp. 3d at 86-87. 10
The District Court issued its opinion shortly after the 11
Supreme Court’s decision in Kingsley v. Hendrickson, 135 S. Ct. 12
2466 (2015), in which the Supreme Court held that, for excessive 13
force claims brought under the Due Process Clause of the 14
Fourteenth Amendment, “a pretrial detainee must show only that 15
the force purposely or knowingly used against him was 16
objectively unreasonable.” Id. at 2473. The Court rejected the 17
requirement that, for such claims, a pretrial detainee establish 18
a state of mind component to the effect that the official 19
applied the force against the pretrial detainee “maliciously and 20
sadistically to cause harm.” Id. at 2475 (citation omitted). The 21
District Court’s opinion was also issued two weeks before this 22
Court’s decision in Willey v. Kirkpatrick, 801 F.3d 51, 66-68 23
(2d Cir. 2015), in which this Court held that while the proper 24

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6
inquiry for a conditions of confinement claim is by reference to 1
the duration and severity of the conditions, the claim did not 2
require a “minimum duration” or “minimum severity” to reach the 3
level of a constitutional violation. This Court further made 4
clear that a “serious injury is unequivocally not a necessary 5
element of an Eighth Amendment [conditions of confinement] 6
claim.” Id. at 68. 7
The District Court did not analyze the implications of 8
Kingsley in its opinion. Moreover, the District Court denied the 9
plaintiffs’ motion for reconsideration based on Willey, as well 10
as the plaintiffs’ later motion for reconsideration of the order 11
denying the first motion for reconsideration, because the 12
District Court found that the plaintiffs’ appeal of the summary 13
judgment order divested it of jurisdiction over the case. 14
Among other issues, this case requires us to consider 15
whether, consistent with Willey, and the precedents on which it 16
is based, appalling conditions of confinement cannot rise to an 17
objective violation of the Fourteenth Amendment’s Due Process 18
Clause so long as the detainee is subjected to those conditions 19
for no more than twenty-four hours, and the detainee does not 20
suffer an actual, serious injury during that time. This case 21
also requires us to consider whether Kingsley altered the 22

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7
standard for conditions of confinement claims under the 1
Fourteenth Amendment’s Due Process Clause. 3
2
For the reasons explained below, we affirm in part, and 3
vacate in part, the District Court’s judgment, and remand the 4
case to the District Court for further proceedings. 5
I. 6
In reviewing the District Court’s grant of summary judgment 7
in favor of the defendants, “we construe the evidence in the 8
light most favorable to the Plaintiffs, drawing all reasonable 9
inferences and resolving all ambiguities in their favor.” CILP 10
Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 118 11
(2d Cir. 2013) (citation and internal quotation marks omitted). 12
We affirm the grant of summary judgment only where “there is no 13
genuine dispute as to any material fact and the movant is 14
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 15
Our review is de novo. Ruggiero v. County of Orange, 467 F.3d 16
170, 173 (2d Cir. 2006). 17
3 This case implicates the Due Process Clause of the Fourteenth
Amendment because it involves state pretrial detainees who are
seeking to vindicate their constitutional rights. See, e.g.,
Benjamin v. Fraser, 343 F.3d 35, 49 (2d Cir. 2003), overruled on
other grounds by Caiozzo v. Koreman, 581 F.3d 63, 70 (2d Cir.
2009). However, the analysis in this decision should be equally
applicable to claims brought by federal pretrial detainees
pursuant to the Due Process Clause of the Fifth Amendment. See
Malinski v. New York, 324 U.S. 401, 415 (1945) (Frankfurter, J.,
concurring) (“To suppose that ‘due process of law’ meant one
thing in the Fifth Amendment and another in the Fourteenth is
too frivolous to require elaborate rejection.”).

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A. 1
This is a lawsuit on behalf of twenty individual plaintiffs 2
rather than a class action. As such, this is a review of a 3
judgment dismissing the separate claims of twenty plaintiffs 4
that were filed in a single complaint. 5
In its analysis, the District Court did not perform 6
individualized assessments of each plaintiff’s claims, reasoning 7
instead that, because no plaintiff’s confinement at BCB exceeded 8
twenty-four hours, and no plaintiff suffered an actual, serious 9
physical injury, no plaintiff could establish a violation. As 10
discussed below, the District Courted erred in its analysis. 11
Although the evidence differed with respect to the conditions 12
that each plaintiff was subjected to, we summarize the facts in 13
the light most favorable to the plaintiffs as a group to explain 14
the error in the District Court’s grant of summary judgment 15
dismissing the Second Amended Complaint. On remand, however, it 16
will be necessary for the District Court to analyze each 17
plaintiff’s claims, both with respect to the conditions of 18
confinement experienced by each plaintiff, and the personal 19
involvement of the individual defendants with respect to the 20
claims of each plaintiff. 21

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B. 1
(i) 2
During the relevant period, BCB was a temporary holding 3
facility located at 275 Atlantic Avenue, Brooklyn, New York, 4
that held recently arrested pretrial detainees awaiting 5
arraignment. BCB has since been relocated to a different 6
facility in Brooklyn. The facility at issue in this dispute is 7
no longer used to hold pretrial detainees. 4
8
Individual defendant Captain Kenneth Kobetitsch was the 9
commanding officer at BCB through July 2011, and his tenure only 10
overlapped with the detention of plaintiff Glenn. 5 Thereafter, 11
beginning on August 29, 2011, individual defendant Captain 12
William Tobin became BCB’s commanding officer, a position he 13
still holds, and his tenure overlapped with the detention of the 14
other plaintiffs. During their respective tenures, Captain 15
Kobetitsch and Captain Tobin supervised the officers and the 16
staff at BCB. Captain Kobetitsch and Captain Tobin toured and 17
4 The plaintiffs initially brought claims against the defendants
seeking compensatory damages and injunctive relief, but, in
proceedings before the District Court, the plaintiffs abandoned
the request for injunctive relief.
5 By letter dated September 22, 2016, the plaintiffs abandoned
their claims against Captain Kobetitsch, except as to plaintiff
Glenn, because Captain Kobetitsch was the commanding officer of
BCB only at the time plaintiff Glenn was detained there. The
judgment dismissing the claims against Captain Kobetitsch---with
the exception of plaintiff Glenn’s claims against Captain
Kobetitsch---is accordingly affirmed.

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10
inspected BCB daily, including its holding cells. Captain Tobin 1
testified that he monitored BCB for “cleanliness.” 2
BCB had eight holding cells, six designated for use by men 3
and two by women. Subordinate officers guarded detainees and 4
also purportedly received “training and instructions with 5
respect to, among other things, transferring detainees between 6
cells, ensuring that there [was] an appropriate number of 7
detainees in individual cells, so as to avoid overcrowding, 8
handling and providing food and beverages to detainees, proper 9
sanitation procedures, and the proper method for handling and 10
disposing of human excrement.” 11
(ii) 12
On separate dates between July 10, 2011, and July 23, 2013, 13
each plaintiff was arrested and detained in holding cells at 14
BCB. 6 Because BCB is a temporary holding facility, each plaintiff 15
was held in custody at BCB from between ten to twenty-four 16
hours. While detained at BCB during the two-year period, each 17
plaintiff was allegedly subjected to one or more degrading 18
conditions of confinement that purportedly constitute nine types 19
of constitutional deprivations: (1) Overcrowding; (2) Unusable 20
Toilets; (3) Garbage and Inadequate Sanitation; (4) Infestation; 21
6 With the exception of plaintiffs Spalango and Tucker, who were
each detained at BCB on March 13, 2013, and plaintiffs Jennings
and Singleton, who were each detained at BCB on July 23, 2013,
the plaintiffs’ confinements at BCB did not overlap with each
other.

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(5) Lack of Toiletries and Other Hygienic Items; (6) Inadequate 1
Nutrition; (7) Extreme Temperatures and Poor Ventilation; (8) 2
Deprivation of Sleep; and (9) Crime and Intimidation. The 3
evidence adduced related to each condition, construed in the 4
light most favorable to the plaintiffs, is discussed in turn. 5
1. Overcrowding. The plaintiffs consistently testified 6
that, for the majority of their respective confinements at BCB, 7
they and other detainees were packed into overcrowded cells 8
designed for, at best, one-half to one-third the actual 9
capacity. For example, one plaintiff testified that his holding 10
cell was so crowded that he could not determine if it had a 11
toilet. Another plaintiff described his cell as “having no room 12
to even stand” because it was “stuffed . . . like a can of 13
sardines.” 14
The plaintiffs testified that, because the cells were so 15
full, there was often only space to stand for hours at a time, 16
and that being forced to stand for hours continuously was 17
painful and degrading. Even when there was space in the cells, 18
the plaintiffs were reluctant to sit or lie down because the 19
floors were filthy. As one plaintiff testified, he only sat down 20
“out of extreme necessity” because he was “exhausted” and 21
“dehydrated.” While cells contained hard benches, there were not 22
nearly enough benches in any given cell to accommodate its 23
numerous occupants. 24

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12
2. Unusable Toilets. Each cell at BCB contained, at best, 1
one exposed toilet that lacked a seat, lid, toilet paper, or 2
sufficient privacy partitions to conceal a toilet user from his 3
or her fellow holding mates. One plaintiff, who was too tired to 4
remain standing, testified that he curled up in a fetal position 5
next to the toilet, the only place he could find room to do so 6
in the cell. Some plaintiffs testified that they were kept for 7
stretches in cells that did not have any toilet at all. 8
Captain Tobin testified that, as a general practice, 9
toilets were cleaned and maintained regularly. Captain Tobin 10
also swore that “[d]etainees are never placed in a cell with a 11
non-functioning toilet” and that “[t]here is always at least one 12
roll of toilet paper provided in each cell.” 13
But the plaintiffs consistently testified that, for any 14
cell that did have a toilet, the toilet rim and bowl, along with 15
the surrounding floor and walls, were covered with some 16
combination of feces, maggots, urine, vomit, and rotten milk. 17
The toilets were frequently clogged and would overflow, spilling 18
their contents. The smell was horrific, with one plaintiff 19
describing the odor in the cells as “overbearing.” The 20
plaintiffs testified that roaches, mice, and other insects and 21
vermin were commonplace in the area around the toilets. 22
Under these circumstances, the plaintiffs testified that, 23
to varying degrees and for varying reasons, they found the 24

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toilets unusable. Some testified that they had the tolerance to 1
urinate in the toilets, while others could not bring themselves 2
to use the toilets even for urination. Some plaintiffs testified 3
that they did not use the toilet for the eminently practical 4
reason that it was clogged or overflowing, leading those 5
plaintiffs to fear that any overflow would spill into the cell 6
and even land on other detainees standing, sitting, or lying 7
next to the toilet; while others found the toilet and 8
surrounding area simply too sickening and unsanitary to use. As 9
one plaintiff testified, “you would have to be really out of 10
your mind to use” the toilet. 11
One plaintiff testified that he defecated in his pants 12
because he could no longer control his bowels. Another plaintiff 13
testified that he used a toilet to defecate without any toilet 14
paper. That plaintiff was later given an almost depleted roll of 15
toilet paper, which did not have enough paper for him to clean 16
himself. 17
Some of the plaintiffs testified that they asked officers 18
to take them to other cells with less filthy toilets, requests 19
the officers almost invariably denied. 20
3. Garbage and Inadequate Sanitation. Given that many of 21
the toilets were clogged and overflowing, the plaintiffs 22
unsurprisingly testified that the holding cells themselves were 23
filthy. The cells had feces and dried urine caked to the floors. 24

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The stench from the toilets drifted through the holding cells, 1
and caused one plaintiff to “dry heav[e] . . . yellow bile.” The 2
plaintiffs consistently testified that the floors were sticky 3
and covered with garbage and other unsanitary items, such as 4
vomit, dead roaches, decaying apple cores, old milk cartons, and 5
rotting sandwiches. One plaintiff testified that he could not 6
“recall a time [the cells were] sanitary for a human being.” 7
Pursuant to prison policy, the cells did not contain trash 8
cans and detainees were expected to throw their trash on the 9
floor. Captain Tobin swore that BCB’s cells were cleaned by BCB 10
custodial staff three times a day. However, the plaintiffs did 11
not testify to witnessing any BCB staff cleaning or maintaining 12
the cells. 13
4. Infestation. The plaintiffs consistently testified 14
that the holding cells were infested with rats, mice, 15
cockroaches, flies, and other insects and vermin. One plaintiff 16
testified that he saw mice and roaches coming out of a radiator; 17
another testified that he saw water bugs emerging from the 18
toilet and nearby exposed pipes; while another described seeing 19
roaches in the area where the food was stored, and under a sink. 20
Yet another plaintiff testified that he observed roaches 21
climbing on his sneaker. Finally, some plaintiffs testified that 22
they watched as rats and insects crawled into, out-of, and 23
around the boxes where food was stored. 24

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5. Lack of Toiletries and Other Hygienic Items. The 1
plaintiffs generally testified that they were not provided with 2
basic toiletries, such as soap, tissues, toothbrushes, 3
toothpaste, and toilet paper, and that the officers generally 4
refused to provide these items even when explicitly requested. 5
One plaintiff, who was menstruating at the time of her 6
detention, began “bleeding all over [her]self.” She testified 7
that the officers were dismissive of her repeated requests for 8
sanitary napkins, and that she stopped asking for sanitary 9
napkins only when she heard an officer reprimand another 10
detainee for making similar requests. Likewise, another 11
plaintiff testified that he and his fellow detainees took turns 12
asking the officers for toilet paper. The officers responded by 13
threatening to delay arraignment if the detainees kept 14
“harassing [them].” 15
6. Inadequate Nutrition. The plaintiffs generally found 16
the food and water provisions nutritionally inadequate. The 17
plaintiffs testified that the sandwiches, and much of the other 18
food, were moldy, rotten, stale, or otherwise inedible. Some 19
plaintiffs described seeing vermin and insects crawling in and 20
around the food boxes, which caused those plaintiffs to avoid 21
the food. One plaintiff testified that he saw another detainee 22
receive a sandwich that had rat bite marks in it. Another 23
plaintiff, a practicing Jewish Rabbi, refused to eat any food 24

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16
because it was not Kosher. When the plaintiff complained to an 1
officer, the officer replied, “[b]eggars can’t be choosy.” Under 2
these circumstances, some of the plaintiffs refused to eat any 3
food at BCB. 4
Many plaintiffs also testified that they did not trust that 5
the “drinking water” at BCB was potable because it was only 6
accessible from a grimy cooler on the floor, a filthy fountain, 7
or a dirty sink adjacent to the toilet. Some plaintiffs 8
testified that the water from those sources looked rusty and 9
otherwise foul. 10
Other plaintiffs testified that they did not have access to 11
any water or food, in any condition, for long periods of time. 12
One plaintiff testified that he asked for water, but that BCB 13
ran out of water. Another plaintiff testified that he did not 14
ask the officers for water or food after he witnessed the 15
officers ridiculing another detainee who had made the same 16
request. 17
Under these circumstances, many of the plaintiffs refused 18
to drink water and became dehydrated. Some plaintiffs were given 19
milk, but most refused to drink it because it was inexplicably 20
hot. The plaintiffs testified that the officers ignored the 21
plaintiffs’ concerns with respect to the milk and water. 22
7. Extreme Temperatures and Poor Ventilation. The holding 23
cells were located in areas of BCB that suffered from poor 24

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17
ventilation, which exacerbated odor problems. In addition, the 1
plaintiffs testified that they were subjected to extreme 2
temperatures depending on the season and the location at BCB--- 3
as such, a plaintiff might experience extreme heat and extreme 4
cold on the same day while moving through BCB. Some plaintiffs 5
testified that they found BCB unbearably hot while others 6
testified that they found it unbearably cold. One plaintiff 7
arrested in January 2012 testified that she removed her socks 8
and shoes due to the “ridiculous[] heat” even though she found 9
the cells, including the cell floors, disgusting and repulsive. 10
8. Deprivation of Sleep. The plaintiffs testified that 11
they generally could not sleep while at BCB for a variety of 12
reasons. The filthy state of the holding cells, coupled with the 13
sheer number of detainees housed in any given cell, made it 14
difficult to find enough room to lie down---many plaintiffs 15
refused to sit or lie down on the floors at all. While BCB 16
apparently had mats that it would provide detainees upon 17
request, many plaintiffs testified that they were unaware of 18
their availability and, regardless, did not see any provided in 19
the cells. To explain why she did not think to request a mat, 20
one plaintiff mused that, “if [the officers] would not give 21
somebody toilet paper, I didn’t think they” would give us mats. 22
The plaintiffs who were given mats testified that the mats were 23

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18
filthy and, in any event, that there was no room in the cells to 1
lie down on them because of the overcrowding. 2
9. Crime and Intimidation. The plaintiffs witnessed other 3
detainees fight each other. Some plaintiffs testified that 4
officers did not monitor the cells to break up altercations. One 5
plaintiff testified that she was kicked, pushed, and verbally 6
abused by other detainees, and that there was no officer nearby 7
to intervene. Another plaintiff testified that he was verbally 8
accosted by two other detainees for about ten hours, but that 9
the officers ignored his requests to be transferred to another 10
cell. 11
(iii) 12
The plaintiffs paint a picture of BCB that is alarming and 13
appalling. The plaintiffs testified that they found the 14
conditions at BCB degrading, humiliating, and emotionally 15
scarring. One plaintiff testified: “I was not treated in a 16
humane manner. I believe if I were a dog, and that if the 17
A.S.P.C.A. was brought in and there was a dog in that cell, that 18
the police officers, whoever were responsible for the treatment 19
of that dog in that cell, that they would be brought up on 20
charges.” Another plaintiff had an anxiety attack that required 21
hospitalization, which he explained: 22
[S]tarted because of the deplorable conditions. I 23
tried holding my bowel for about four hours. I wasn’t 24
able to use the bathroom or any form of the bathroom 25

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19
and I found it very hard to breathe. My chest was very 1
heavy and I tried to alert the guard. One guard just 2
walked by and when they were letting in more people I 3
told the guard I have to go to the hospital. I’m 4
having chest pains and it was maybe 30 minutes after 5
that they took me to the medical cell. 6
7
Another plaintiff testified that the experience “stay[ed]” 8
with him, explaining that it was something that was difficult to 9
forget. 10
However, the plaintiffs did not generally testify that they 11
suffered serious long term physical injuries or illnesses. 12
C. 13
(i) 14
The plaintiffs filed their initial complaint on June 26, 15
2013, which they amended on August 7, 2013, and again on 16
September 12, 2013. The defendants moved to dismiss the 17
plaintiffs’ claims pursuant to Rule 12(b)(6) of the Federal 18
Rules of Civil Procedure, a motion the District Court denied in 19
an Opinion and Order dated September 12, 2014. See Cano v. City 20
of New York, 44 F. Supp. 3d 324 (E.D.N.Y. 2014). 21
Although not the subject of the current appeal, this prior 22
opinion by the District Court provides helpful background. In 23
that opinion, the District Court noted that the defendants had 24
argued for a nearly “per se rule that no matter the conditions, 25
if a detainee is only exposed to them for less than twenty-four 26
hours, there can be no objective constitutional violation.” Id. 27

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20
at 333. The District Court rejected the defendants’ argument, 1
reasoning that even temporary deprivations could be objectively 2
unconstitutional so long as those conditions were sufficiently 3
serious. See id. The District Court accordingly held that the 4
plaintiffs had “plausibly alleged that the conditions of 5
confinement at BCB deprived them of the minimal civilized 6
measures of life’s necessities and subjected them to 7
unreasonable health and safety risks.” Id. (citing Walker v. 8
Schult, 717 F.3d 119, 126 (2d Cir. 2013)). 9
In addition, relying on this Court’s decision in Caiozzo v. 10
Koreman, 581 F.3d 63, 70 (2d Cir. 2009), the District Court 11
concluded that, to state a claim for unconstitutional conditions 12
of confinement, the plaintiffs were required to allege that the 13
individual defendants had acted with deliberate indifference in 14
a subjective sense, namely that the defendants knew and 15
disregarded excessive risks to the plaintiffs’ health and 16
safety. Cano, 44 F. Supp. 3d at 332-34. The District Court held 17
that the plaintiffs had met this threshold, ruling that it was 18
plausible that the individual defendants were aware of the 19
challenged conditions based on, among other things, “their own 20
observations . . . external reports and complaints; complaints 21
filed by detainees; reports by the media; and prior lawsuits.” 22
Id. at 334. 23

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21
The District Court also held that the plaintiffs had 1
adequately alleged punitive intent and personal involvement by 2
the individual defendants. See id. at 334-36. 3
(ii) 4
At the close of extensive discovery---which included, among 5
other things, the often uncontroverted deposition testimony of 6
each plaintiff---the defendants moved for summary judgment, 7
which the District Court granted in an Opinion and Order dated 8
August 13, 2015. Cano v. City of New York, 119 F. Supp. 3d 65 9
(E.D.N.Y. 2015). 10
The District Court began by stating that it would describe 11
the facts of the case “in the light most favorable to the 12
Plaintiffs, the non-moving party.” Id. at 70 (citation omitted). 13
However, the District Court never described the evidence of the 14
conditions that each individual plaintiff faced. Instead, the 15
District Court summarized the case by quoting allegations from 16
the Second Amended Complaint before proceeding to its discussion 17
of the case. See id. at 70-71. The District Court ultimately 18
held that the defendants were entitled to summary judgment for 19
several reasons. Id. at 72-73. 20
First, the District Court found that no jury could conclude 21
that any of the evidence of the challenged conditions of 22
confinement, “either taken in the aggregate or taken as a 23
whole,” objectively deprived any of the plaintiffs of their due 24

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22
process rights. Id. at 81. In contrast to the state of law 1
described in its opinion denying the defendants’ motion to 2
dismiss, the District Court concluded that, “[t]he Second 3
Circuit and her constituent District Courts have routinely held 4
that occasional and temporary deprivations of sanitary and 5
temperate conditions, without more, do not constitute a 6
sufficiently serious deprivation under the Eighth Amendment to 7
constitute punishment.” Id. at 74. Accordingly, the District 8
Court held that, “while certain conditions may have been 9
uncomfortable for Plaintiffs, the evidence fails to establish 10
any Plaintiff was regularly denied his or her basic human needs 11
or was exposed to conditions that posed an unreasonable risk of 12
serious damage to his or her future health.” Id. (emphasis 13
added). In particular, the District Court reasoned that no 14
plaintiff could establish an objective constitutional 15
deprivation because no plaintiff could link any condition of 16
confinement to any actual serious injury, and because the period 17
of confinement did not exceed twenty-four hours for any 18
plaintiff. See, e.g., id. (“Plaintiffs fail to show any of them 19
were subjected to overcrowding for an extended period of time 20
and further fail to establish any of them were injured in any 21
way from the overcrowding.”); id. at 82 (“Most Plaintiffs did 22
not seek any sort of medical treatment and none of the 23
Plaintiffs provide evidence of having suffered any long term 24

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23
physical or emotional harm due to time spent in the BCB.”); see 1
also id. at 74-82. 2
Second, the District Court concluded that no reasonable 3
jury could find that the plaintiffs had satisfied the subjective 4
prong of a deliberate indifference claim, namely that the 5
officers knew about conditions that posed excessive risks to the 6
plaintiffs’ safety and health. The Court found that the evidence 7
for the individual defendants---especially BCB’s log book 8
entries, which documented sporadic cleaning and maintenance 9
efforts, and Captain Tobin’s deposition testimony---established 10
that the individual defendants had reasonable practices in place 11
to ensure that the officers under their supervision acted 12
reasonably in response to any risks. Id. at 84-85. The District 13
Court found that the individual defendants had acted with, at 14
most, mere negligence. Id. at 84. Moreover, the District Court 15
found that none of the individual defendants could have known 16
about the allegedly unconstitutional conditions because there 17
was no evidence that the subordinate officers who actually 18
guarded the detainees informed the individual defendants of any 19
of the challenged conditions, which were not unconstitutional in 20
any event. See id. at 85. 21
Third, for substantially the same reasons, the District 22
Court concluded that there was no triable issue of fact as to 23

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24
whether any individual defendant had acted with punitive intent. 1
See id. at 85-86. 2
Finally, because the plaintiffs had failed to establish a 3
triable issue of fact that any of them had suffered an objective 4
deprivation (and therefore failed to establish an underlying 5
constitutional violation), the District Court concluded that the 6
individual defendants were entitled to qualified immunity, and 7
that the plaintiffs could not prove that the City had any Monell 8
liability. See id. at 86-87. 9
(iii) 10
On August 14, 2015, the District Court entered judgment 11
dismissing the plaintiffs’ Second Amended Complaint. On August 12
28, 2015, this Court issued its decision in Willey. On the same 13
day, the plaintiffs informed the District Court of their 14
intention to move for reconsideration based on Willey, and the 15
District Court later set a briefing schedule whereby the motion 16
for reconsideration would be fully briefed by October 23, 2015. 17
On September 11, 2015, the plaintiffs timely filed a Notice 18
of Appeal challenging the District Court’s grant of summary 19
judgment. Later that day, the plaintiffs filed with the District 20
Court their motion for reconsideration pursuant to Rules 59(e) 21
and 60(b) of the Federal Rules of Civil Procedure, and Local 22
Rule 6.3(e) of the United States District Court for the Eastern 23
District of New York. On the same day, in a minute order (the 24

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25
“First Minute Order”), the District Court denied the motion for 1
reconsideration, stating that the appeal divested it of 2
jurisdiction over the case. 3
The plaintiffs promptly moved for reconsideration of the 4
First Minute Order, arguing that, pursuant to Rule 4(a)(4)(B)(i) 5
of the Federal Rules of Appellate Procedure, the appeal did not 6
divest the District Court of jurisdiction to reconsider the 7
judgment. On September 12, 2015, in another minute order (the 8
“Second Minute Order”), the District Court denied without 9
elaboration the plaintiffs’ motion for reconsideration of the 10
First Minute Order. On October 5, 2015, the plaintiffs filed an 11
Amended Notice of Appeal challenging, in addition to the grant 12
of summary judgment, the First and Second Minute Orders. 7
13
II. 14
A pretrial detainee’s claims of unconstitutional conditions 15
of confinement are governed by the Due Process Clause of the 16
7 It is unnecessary to reach the plaintiffs’ appeal challenging
the First and Second Minutes Orders, which were entered post-
judgment. Those Orders do not raise any substantial issues that
affect the disposition of this appeal. To the extent that the
plaintiffs’ Notice of Appeal divested the District Court of its
jurisdiction to hear the post-judgment motions, Rule 62.1 of the
Federal Rules of Civil Procedure permits district courts to
issue “indicative rulings” to appellate courts when “a timely
motion is made for relief that the court lacks authority to
grant because of an appeal that has been docketed and is
pending.” Fed. R. Civ. P. 62.1; see also Fed. R. App. P. 12.1.
In the indicative ruling, the district court may indicate if it
believes that the relief sought is meritorious, meritless, or
merits further consideration, and request that the appellate
court remand the case for further proceedings.

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26
Fourteenth Amendment, rather than the Cruel and Unusual 1
Punishments Clause of the Eight Amendment. Benjamin v. Fraser, 2
343 F.3d 35, 49 (2d Cir. 2003), overruled on other grounds by 3
Caiozzo v. Koreman, 581 F.3d 63, 70 (2d Cir. 2009); see also 4
City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). A 5
pretrial detainee’s claims are evaluated under the Due Process 6
Clause because, “[p]retrial detainees have not been convicted of 7
a crime and thus ‘may not be punished in any manner—neither 8
cruelly and unusually nor otherwise.’” Iqbal v. Hasty, 490 F.3d 9
143, 168 (2d Cir. 2007) (quoting Benjamin, 343 F.3d at 49–50), 10
rev’d on other grounds sub nom., Ashcroft v. Iqbal, 556 U.S. 11
662, 678 (2009). A detainee’s rights are “at least as great as 12
the Eighth Amendment protections available to a convicted 13
prisoner.” City of Revere, 463 U.S. at 244. 14
A pretrial detainee may establish a § 1983 claim for 15
allegedly unconstitutional conditions of confinement by showing 16
that the officers acted with deliberate indifference to the 17
challenged conditions. See Benjamin, 343 F.3d at 50. This means 18
that a pretrial detainee must satisfy two prongs to prove a 19
claim, an “objective prong” showing that the challenged 20
conditions were sufficiently serious to constitute objective 21
deprivations of the right to due process, and a “subjective 22
prong”---perhaps better classified as a “mens rea prong” or 23
“mental element prong”---showing that the officer acted with at 24

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27
least deliberate indifference to the challenged conditions. The 1
reason that the term “subjective prong” might be a misleading 2
description is that, as discussed below, the Supreme Court has 3
instructed that “deliberate indifference” roughly means 4
“recklessness,” but “recklessness” can be defined subjectively 5
(what a person actually knew, and disregarded), or objectively 6
(what a reasonable person knew, or should have known). See 7
Farmer v. Brennan, 511 U.S. 825, 836-37 (1994). 8
Relying on this Court’s decision in Caiozzo v. Koreman, 581 9
F.3d 63, 72 (2d Cir. 2009), the District Court concluded that 10
the elements for establishing deliberate indifference under the 11
Fourteenth Amendment were the same as under the Eighth 12
Amendment. Cano, 119 F. Supp. 3d at 72 (citing Caiozzo, 581 F.3d 13
at 72). Therefore, the District Court required the plaintiffs to 14
prove that, “(1) objectively, the deprivation the [detainee] 15
suffered was ‘sufficiently serious that he was denied the 16
minimal civilized measure of life’s necessities,’ and (2) 17
subjectively, the defendant official acted with ‘a sufficiently 18
culpable state of mind . . . , such as deliberate indifference 19
to [detainee] health or safety.’” Id. at 73 (quoting Walker, 717 20
F.3d at 125). 21
In applying this test, the District Court erred in two 22
respects. First, the District Court misapplied this Court’s 23
precedents in assessing whether the plaintiffs had established 24

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28
an objectively serious deprivation. Second, we conclude that the 1
Supreme Court’s decision in Kingsley altered the standard for 2
deliberate indifference claims under the Due Process Clause. 3
A. 4
Under both the Eighth and Fourteenth Amendments, to 5
establish an objective deprivation, “the inmate must show that 6
the conditions, either alone or in combination, pose an 7
unreasonable risk of serious damage to his health,” Walker, 717 8
F.3d at 125, which includes the risk of serious damage to 9
“physical and mental soundness,” LaReau v. MacDougall, 473 F.2d 10
974, 978 (2d Cir. 1972). There is no “static test” to determine 11
whether a deprivation is sufficiently serious; instead, “the 12
conditions themselves must be evaluated in light of contemporary 13
standards of decency.” Blissett v. Coughlin, 66 F.3d 531, 537 14
(2d Cir. 1995) (citing Rhodes v. Chapman, 452 U.S. 337, 346 15
(1981)). For example, “[w]e have held that prisoners may not be 16
deprived of their basic human needs—e.g., food, clothing, 17
shelter, medical care, and reasonable safety—and they may not be 18
exposed to conditions that pose an unreasonable risk of serious 19
damage to [their] future health.” Jabbar v. Fischer, 683 F.3d 20
54, 57 (2d Cir. 2012) (citation and internal quotation marks 21
omitted). 22
“[C]onditions of confinement may be aggregated to rise to 23
the level of a constitutional violation, but ‘only when they 24

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29
have a mutually enforcing effect that produces the deprivation 1
of a single, identifiable human need such as food, warmth, or 2
exercise.’” Walker, 717 F.3d at 125 (quoting Wilson v. Seiter, 3
501 U.S. 294, 304 (1991)). Unsanitary conditions, especially 4
when coupled with other mutually enforcing conditions, such as 5
poor ventilation and lack of hygienic items (in particular, 6
toilet paper), can rise to the level of an objective 7
deprivation. See id. at 127-28 (collecting cases). 8
In Willey v. Kirkpatrick, 801 F.3d 51, 68 (2d Cir. 2015), 9
this Court recently reiterated that the proper lens through 10
which to analyze allegedly unconstitutional unsanitary 11
conditions of confinement is with reference to their severity 12
and duration, not the detainee’s resulting injury. In Willey, a 13
convicted prisoner brought, among other claims, a claim under 14
the Eighth Amendment against officers at a prison who allegedly 15
exposed him to unsanitary conditions by confining him alone in a 16
cell with little airflow, and then incapacitating his toilet for 17
a period of, at a minimum, seven days “so that he was reduced to 18
breathing a miasma of his own waste.” Id. at 55. In addition, on 19
two separate occasions (during one of which the prisoner was 20
kept naked), the officers confined the prisoner to an 21
observation cell smeared with feces and urine. See id. at 55, 22
58. 23

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30
In reinstating the prisoner’s claim, Willey reviewed Second 1
Circuit case law involving exposure to unsanitary conditions, 2
and, consistent with this Court’s precedents, made clear that 3
unsanitary conditions of confinement must be assessed according 4
to two components, severity and duration, on a case-by-case 5
basis. 8 Id. at 66-68 (citing Gaston v. Coughlin, 249 F.3d 156 (2d 6
Cir. 2001); LaReau v. MacDougall, 473 F.2d 974 (2d Cir. 1972)). 7
While Willey acknowledged that “there are many exposures of 8
inmates to unsanitary conditions that do not amount to a 9
constitutional violation,” the Court rejected a “bright-line 10
durational requirement for a viable unsanitary-conditions claim” 11
or a “minimal level of grotesquerie required” before such a 12
claim could be brought. Id. at 68. As this Court explained, 13
“[t]he severity of an exposure may be less quantifiable than its 14
duration, but its qualitative offense to a prisoner’s dignity 15
should be given due consideration.” Id. Finally, the Court noted 16
that “serious injury is unequivocally not a necessary element of 17
an Eighth Amendment claim,” although “the seriousness of the 18
harms suffered is relevant to calculating damages and may shed 19
light on the severity of an exposure.” Id. 20
Willey also reinstated the prisoner’s claim based on the 21
provision of nutritionally inadequate food, concluding that the 22
8 The Court also noted that other Courts of Appeals are broadly
in accord with this analytical framework. See Willey, 801 F.3d
at 67 (collecting cases).

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31
prisoner’s allegations that he was usually served stale bread 1
and rotten cabbage for one week were sufficient to allege an 2
objective deprivation. Id. at 69. This Court again rejected the 3
imposition of bright-line limits on inadequate nutrition claims, 4
noting that the prisoner’s “claim is not that all restricted 5
diets are unconstitutional, but that . . . . his restricted diet 6
was unusually unhealthy.” Id. 7
Some of the challenged conditions in this case, such as 8
inadequate nutrition, and unsanitary conditions---including 9
inoperable toilets and filthy cells---are clearly covered by 10
Willey. Other conditions at issue, such as overcrowding, do not 11
necessarily fall under Willey’s express ambit. However, Willey 12
was not breaking new ground, but rather reaffirming the law in 13
this Circuit, and its reasoning applies to the other challenged 14
conditions in this case. 15
While the claims before the Court in Willey related to 16
unsanitary conditions and inadequate nutrition, this Court has 17
been reluctant to impose bright-line durational or severity 18
limits in conditions of confinement cases, and has never imposed 19
a requirement that pretrial detainees show that they actually 20
suffered from serious injuries. See Walker, 717 F.3d at 129 21
(distinguishing Rhodes v. Chapman, 452 U.S. 337 (1981), by 22
reasoning that the Supreme Court did not hold, as a matter of 23
law, that the provision of a cell sufficient to afford a 24

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32
pretrial detainee thirty-one square feet of space could not be 1
an unconstitutional deprivation of living space). Even in the 2
rare case where the Court has imposed bright-line limits, those 3
limits have been flexible and dependent upon the circumstances. 4
See Jabbar, 683 F.3d at 57 (“We hold that the failure of prison 5
officials to provide inmates with seatbelts on prison transport 6
buses does not, standing alone, violate the Eighth or Fourteenth 7
Amendments.” (emphasis added)). 8
Bright-line limits are generally incompatible with 9
Fourteenth Amendment teaching that there is no “static” 10
definition of a deprivation, see Blissett, 66 F.3d at 537 11
(citing Rhodes, 452 U.S. at 346), and the Supreme Court’s 12
instruction that any condition of confinement can mutually 13
enforce another, so long as those conditions lead to the same 14
deprivation, see Wilson, 501 U.S. at 304; see also Walker, 717 15
F.3d at 127-28. The latter point is implicit in Willey, 805 F.3d 16
at 68, which found that conditions that would normally have 17
nothing to do with sanitation (for example, poor air circulation 18
or being kept naked) can exacerbate the harmful effects of 19
unsanitary conditions. Accordingly, this Court has repeatedly 20
reiterated that conditions of confinement cases involve fact- 21
intensive inquiries. See, e.g., Willey, 805 F.3d at 68-69. 22
The standards for evaluating objective deprivations, as 23
articulated in Willey, thus extend to each of the nine 24

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33
challenged conditions of confinement at issue in this case---(1) 1
Overcrowding; (2) Unusable Toilets; (3) Garbage and Inadequate 2
Sanitation; (4) Infestation; (5) Lack of Toiletries and Other 3
Hygienic Items; (6) Inadequate Nutrition; (7) Extreme 4
Temperatures and Poor Ventilation; (8) Deprivation of Sleep; and 5
(9) Crime and Intimidation---regardless of whether those 6
conditions relate to a deprivation involving sanitation or 7
inadequate nutrition. Each of these conditions must be measured 8
by its severity and duration, not the resulting injury, and none 9
of these conditions is subject to a bright-line durational or 10
severity threshold. Moreover, the conditions must be analyzed in 11
combination, not in isolation, at least where one alleged 12
deprivation has a bearing on another. See Wilson, 501 U.S. at 13
304 (noting the synergy between cold temperatures and the 14
failure to provide blankets in establishing an Eighth Amendment 15
violation). An overcrowded cell, for example, may exacerbate the 16
effect of unsanitary conditions. Similarly, poor ventilation may 17
be particularly harmful when combined with an overflowing 18
toilet. Inadequate nutrition may be compounded by infestation. 19
B. 20
The second element of a conditions of confinement claim 21
brought under the Due Process Clause of the Fourteenth Amendment 22
is the defendant’s “deliberate indifference” to any objectively 23
serious condition of confinement. Courts have traditionally 24

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34
referred to this second element as the “subjective prong.” But 1
“deliberate indifference,” which is roughly synonymous with 2
“recklessness,” can be defined either “subjectively” in a 3
criminal sense, or “objectively” in a civil sense. As such, the 4
“subjective prong” might better be described as the “mens rea 5
prong” or “mental element prong.” 6
Just over two decades ago, in Farmer v. Brennan, 511 U.S. 7
825 (1994), the Supreme Court addressed the meaning of 8
“deliberate indifference” in the context of a convicted 9
prisoner’s deliberate indifference to conditions of confinement 10
claim brought under the Cruel and Unusual Punishments Clause of 11
the Eighth Amendment. The Supreme Court concluded that 12
deliberate indifference is properly equated with the mens rea of 13
“recklessness.” Id. at 836. However, the Court observed that 14
recklessness is not completely self-defining. See id. The Court 15
noted that recklessness could be defined according to an 16
objective standard akin to that used in the civil context, which 17
would not require proof of an official’s actual awareness of the 18
harms associated with the challenged conditions, or according to 19
a more exacting subjective standard akin to that used in the 20
criminal context, which would require proof of such subjective 21
awareness. See id. at 836-37. 22
The Supreme Court in Farmer rejected the application of an 23
objective standard for deliberate indifference as inappropriate 24

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35
under the Cruel and Unusual Punishments Clause, holding that an 1
official “cannot be found liable under the Eighth Amendment for 2
denying an inmate humane conditions of confinement unless the 3
official knows of and disregards an excessive risk to inmate 4
health or safety; the official must both be aware of facts from 5
which the inference could be drawn that a substantial risk of 6
serious harm exists, and he must also draw the inference.” Id. 7
at 837. The Supreme Court based its holding on a close reading 8
of the text of the Cruel and Unusual Punishments Clause, which 9
“outlaws cruel and unusual ‘punishments,’” not “cruel and 10
unusual ‘conditions.’” Id. According to the Supreme Court, 11
“punishment” connotes a subjective intent on the part of the 12
official, which also requires awareness of the punishing act or 13
omission. See id. at 836-37. As the Court stated, “an official’s 14
failure to alleviate a significant risk that he should have 15
perceived but did not, while no cause for commendation, cannot 16
under our cases be condemned as the infliction of punishment.” 17
Id. at 838. 18
Farmer did not address deliberate indifference for pretrial 19
detainees under the Due Process Clause of the Fourteenth 20
Amendment. Following Farmer, this Court seven years ago in 21
Caiozzo, 581 F.3d at 66, discerned two lines of Fourteenth 22
Amendment deliberate indifference authority in this Circuit: one 23
that applied an objective standard and another that applied a 24

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36
subjective standard. Caiozzo resolved the intra-circuit 1
divergence, holding that the same subjective standard for 2
deliberate indifference claims under the Eighth Amendment’s 3
Cruel and Unusual Punishments Clause should apply to deliberate 4
indifference claims under the Fourteenth Amendment’s Due Process 5
Clause, which the Court reasoned was “a logical extension of the 6
principles recognized in Farmer.” 9 Id. at 71. This Court 7
explained that this Court’s jurisprudence for claims brought 8
under the Eighth Amendment had generally mirrored this Court’s 9
jurisprudence for claims under the Fourteenth Amendment. See id. 10
(citing Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000)). 11
Relying on the analysis of the Court of Appeals for the Fifth 12
Circuit in Hare v. City of Corinth, Mississippi, 74 F.3d 633 13
(5th Cir. 1996) (en banc), this Court highlighted that the 14
Supreme Court had given no indication that pretrial detainees 15
should be treated differently from their post-conviction 16
counterparts. See Caiozzo, 581 F.3d at 71-72 (quoting Hare, 74 17
F.3d at 649). This Court also noted that the majority of the 18
9 Caiozzo, 581 F.3d at 68, involved a claim for deliberate
indifference to medical needs under the Fourteenth Amendment.
Nevertheless, the Court’s interpretation of “deliberate
indifference” applied to any pretrial detainee claim for
deliberate indifference to “serious threat to . . . health or
safety”---such as from unconstitutional conditions of
confinement, or the failure-to-protect---because deliberate
indifference means the same thing for each type of claim under
the Fourteenth Amendment. See id. at 72.

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37
other Courts of Appeals had reached a similar conclusion. See 1
id. at 71 n.4 (collecting cases). 2
The Supreme Court’s decision in Kingsley v. Hendrickson, 3
135 S. Ct. 2466 (2015)---in which the Supreme Court concluded 4
that excessive force claims brought under the Fourteenth 5
Amendment do not require the same subjective intent standard as 6
excessive force claims brought under the Eighth Amendment---has 7
undercut the reasoning in Caiozzo. 10 The issue before the Supreme 8
Court in Kingsley was whether “to prove an excessive force claim 9
[under the Fourteenth Amendment], a pretrial detainee must show 10
that the officers were subjectively aware that their use of 11
force was unreasonable, or only that the officers’ use of that 12
force was objectively unreasonable.” Kingsley, 135 S. Ct. at 13
2470 (emphasis added). Kingsley involved a pretrial detainee’s 14
allegations that prison officers, who had undisputedly 15
deliberately used force against the detainee (by using a Taser 16
to incapacitate him), had, in doing so, acted with excessive 17
force. See id. 18
Regarding the requisite mens rea for the officer’s use of 19
force against the detainee, the Court held “that a pretrial 20
10 See also Ross v. Correction Officers John & Jane Does 1-5, 610
F. App’x 75, 77 n.1 (2d Cir. 2015) (summary order). The panel in
Ross did not reach the implications of Kingsley because it
concluded that the defendant-official there was entitled to
qualified immunity, which resulted in the dismissal of the
plaintiff’s claims. See id.

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38
detainee must show only that the force purposely or knowingly 1
used against him was objectively unreasonable.” 11 Id. at 2472-73. 2
The Court observed that, “[t]hus, the defendant’s state of mind 3
is not a matter that a plaintiff is required to prove.” Id. at 4
2472. 5
The Court reasoned that its interpretation of excessive 6
force claims under the Due Process Clause was consistent with 7
its prior precedents, including Bell v. Wolfish, 441 U.S. 520 8
(1979), where the Court had held that a pretrial detainee can 9
prevail on a claim brought under the Fourteenth Amendment 10
challenging “a variety of prison conditions, including a 11
prison’s practice of double-bunking” solely by proffering 12
objective evidence to show that the conditions were not 13
reasonably related to a legitimate, nonpunitive governmental 14
purpose. Kingsley, 135 S. Ct. at 2473 (citing Bell, 441 U.S. at 15
541-43). The Court found that the focus of Bell and its progeny 16
11 The Supreme Court in Kingsley framed its analysis by observing
that excessive force cases involve “two separate state-of-mind
questions. The first concerns the defendant’s state of mind with
respect to his physical acts—i.e., his state of mind with
respect to the bringing about of certain physical consequences
in the world. The second question concerns the defendant’s state
of mind with respect to whether his use of force was
‘excessive.’” Kingsley, 135 S. Ct. at 2472. The Court did not
address the first question because it was undisputed that the
officers had deliberately used force against the detainee by
purposefully and knowingly using the Taser on the detainee,
although the Court left open the possibility that the mental
state of recklessness might suffice for the first state-of-mind
question as well. Id.

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39
on punishment “does not mean that proof of intent (or motive) to 1
punish is required for a pretrial detainee to prevail on a claim 2
that his due process rights were violated” or that the 3
“application of Bell’s objective standard should involve 4
subjective considerations.” 12 Id. at 2473-74 (collecting cases). 5
The Court also concluded that Eighth Amendment excessive 6
force jurisprudence did not control the standard for excessive 7
force claims under the Fourteenth Amendment. See id. at 2475 8
(finding that Eighth Amendment cases “are relevant here only 9
insofar as they address the practical importance of taking into 10
account the legitimate safety-related concerns of those who run 11
jails”). The Court stressed the different functions of the 12
Eighth Amendment’s Cruel and Unusual Punishments Clause and the 13
Fourteenth Amendment’s Due Process Clause: 14
The language of the two Clauses differs, and the 15
nature of the claims often differs. And, most 16
importantly, pretrial detainees (unlike convicted 17
prisoners) cannot be punished at all, much less 18
“maliciously and sadistically.” Thus, there is no need 19
here, as there might be in an Eighth Amendment case, 20
to determine when punishment is unconstitutional. Id. 21
(citations omitted). 22
12 A pretrial detainee can establish a due process claim for
inhumane conditions of confinement either by proving an
official’s deliberate indifference to those conditions, or by
proving that that those conditions are punitive. See Benjamin,
343 F.3d at 50. Kingsley and its precedents are clear that the
two theories of liability are distinct. Nothing about our
interpretation of the proper standard for deliberate
indifference for due process purposes should be construed as
affecting the standards for establishing liability based on a
claim that challenged conditions are punitive.

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40
1
Following the Supreme Court’s analysis in Kingsley, there 2
is no basis for the reasoning in Caiozzo that the subjective 3
intent requirement for deliberate indifference claims under the 4
Eighth Amendment, as articulated in Farmer, must apply to 5
deliberate indifference claims under the Fourteenth Amendment. 6
Caiozzo is thus overruled to the extent that it determined that 7
the standard for deliberate indifference is the same under the 8
Fourteenth Amendment as it is under the Eighth Amendment. 13
9
Farmer is clear that “deliberate indifference” can be 10
viewed either subjectively or objectively. In the context of a 11
convicted prisoner asserting a violation of an Eighth Amendment 12
right to be free from cruel and unusual punishments, the Supreme 13
Court in Farmer defined deliberate indifference subjectively, 14
meaning that a prison official must appreciate the risk to which 15
a prisoner was subjected. The conditions of confinement were a 16
form of punishment, and, based on the Supreme Court’s 17
interpretation of the Cruel and Unusual Punishments Clause, the 18
prison official had to have subjective awareness of the 19
harmfulness associated with those conditions to be liable for 20
meting out that punishment. 21
After Kingsley, it is plain that punishment has no place in 22
defining the mens rea element of a pretrial detainee’s claim 23
13 This opinion has been circulated to all of the judges of the
Court prior to filing.

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41
under the Due Process Clause. Unlike a violation of the Cruel 1
and Unusual Punishments Clause, an official can violate the Due 2
Process Clause of the Fourteenth Amendment without meting out 3
any punishment, which means that the Due Process Clause can be 4
violated when an official does not have subjective awareness 5
that the official’s acts (or omissions) have subjected the 6
pretrial detainee to a substantial risk of harm. 7
Kingsley held that an officer’s appreciation of the 8
officer’s application of excessive force against a pretrial 9
detainee in violation of the detainee’s due process rights 10
should be viewed objectively. The same objective analysis should 11
apply to an officer’s appreciation of the risks associated with 12
an unlawful condition of confinement in a claim for deliberate 13
indifference under the Fourteenth Amendment. A pretrial detainee 14
may not be punished at all under the Fourteenth Amendment, 15
whether through the use of excessive force, by deliberate 16
indifference to conditions of confinement, or otherwise. 17
Therefore, to establish a claim for deliberate indifference 18
to conditions of confinement under the Due Process Clause of the 19
Fourteenth Amendment, the pretrial detainee must prove that the 20
defendant-official acted intentionally to impose the alleged 21
condition, or recklessly failed to act with reasonable care to 22
mitigate the risk that the condition posed to the pretrial 23
detainee even though the defendant-official knew, or should have 24

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42
known, that the condition posed an excessive risk to health or 1
safety. In other words, the “subjective prong” (or “mens rea 2
prong”) of a deliberate indifference claim is defined 3
objectively. 4
In concluding that deliberate indifference should be 5
defined objectively for a claim of a due process violation, we 6
join the Court of Appeals for the Ninth Circuit, which, sitting 7
en banc in Castro v. County of Los Angeles, 833 F.3d 1060, 1070 8
(9th Cir. 2016) (en banc), cert. denied, No. 16-655, 2017 WL 9
276190 (U.S. Jan. 23, 2017), likewise interpreted Kingsley as 10
standing for the proposition that deliberate indifference for 11
due process purposes should be measured by an objective 12
standard. 14 The Court of Appeals for the Ninth Circuit concluded 13
that Kingsley’s broad reasoning extends beyond the excessive 14
force context in which it arose. 15 See id. at 1069 (“The 15
14 Castro dealt with deliberate indifference in a failure-to-
protect case, but---like this Court’s interpretation of
deliberate indifference, see note 9, supra---the interpretation
of deliberate indifference by the Court of Appeals for the Ninth
Circuit is equally applicable to a conditions of confinement
claim. See Castro, 833 F.3d at 1069-70 (overruling Clouthier v.
County of Contra Costa, 591 F.3d 1232 (9th Cir. 2010), which had
held that a subjective test applied to due process claims for
deliberate indifference to addressing serious medical needs);
Williams v. Fresno Cty. Dist. Attorney’s Office, No. 16-cv-00734
(DAD)(MJS), 2016 WL 5158943, at *4 (E.D. Cal. Sept. 20, 2016)
(applying Castro test to a due process claim for deliberate
indifference to conditions of confinement).
15 The defendants cite several decisions by other Courts of
Appeals that have continued to apply a subjective standard to
deliberate indifference claims for pretrial detainees after

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underlying federal right, as well as the nature of the harm 1
suffered, is the same for pretrial detainees’ excessive force 2
and failure-to-protect claims.”). 3
The defendants argue that using an objective standard to 4
measure deliberate indifference---a similar standard to the one 5
used before Caiozzo, see, e.g., Benjamin, 343 F.3d at 51; Liscio 6
v. Warren, 901 F.2d 274, 276 (2d Cir. 1990), overruled by 7
Caiozzo, 581 F.3d at 71---risks that officials that act with 8
mere negligence will be held liable for constitutional 9
violations. But any § 1983 claim for a violation of due process 10
requires proof of a mens rea greater than mere negligence. 16 See 11
Kingsley, 135 S. Ct. at 2472 (“[L]iability for negligently 12
inflicted harm is categorically beneath the threshold of 13
constitutional due process.” (citation omitted)). A detainee 14
must prove that an official acted intentionally or recklessly, 15
Kingsley. But none of those cases considered whether Kingsley
had altered the standard for deliberate indifference for
pretrial detainees. See, e.g., Brown v. Chapman, No. 15-3506,
2016 WL 683260 (6th Cir. Feb. 19, 2016); Moore v. Diggins, 633
F. App’x 672 (10th Cir. 2015) (summary opinion); Mason v.
Lafayette City-Par. Consol. Gov’t, 806 F.3d 268 (5th Cir. 2015);
Smith v. Dart, 803 F.3d 304, 310 n.2 (7th Cir. 2015) (noting, in
light of Kingsley, that the parties argued the state of mind
element but that “it is not at issue in this appeal”).
16 The reckless or intentional action (or inaction) required to
sustain a § 1983 deliberate indifference claim must be the
product of a voluntary act (or omission) by the official. See
Farmer, 511 U.S. at 835 (observing that the word “deliberate” in
“deliberate indifference” might “require[] nothing more than an
act (or omission) of indifference to a serious risk that is
voluntary, not accidental” (citation omitted)).

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44
and not merely negligently. Indeed, pre-Caiozzo case law that 1
applied an objective standard was clear that officials could not 2
be found liable for negligent conduct. See, e.g., Liscio, 901 3
F.2d at 275. 4
The defendants also argue that the return to an objective 5
definition of deliberate indifference will open the flood-gates 6
to litigation. The argument is unpersuasive. Prior to Caiozzo, 7
some courts in this Circuit applied an objective standard for 8
deliberate indifference. Caiozzo chose to apply a subjective 9
standard to deliberate indifference because this Court thought 10
that it was more consistent with Farmer, not because of any 11
concerns that an objective standard would prompt the filing of 12
non-meritorious claims. Consistency with the Supreme Court’s 13
decision in Kingsley now dictates that deliberate indifference 14
be measured objectively in due process cases. 15
III. 16
A. 17
The District Court erroneously granted summary judgment for 18
the defendants on the basis that no jury could find that the 19
nine challenged conditions of confinement in this case, 20
considered together or separately, amounted to an objective 21
constitutional deprivation because no plaintiff could establish 22
a regular deprivation lasting more than twenty-four hours, or an 23
actual serious injury or sickness. However, the plaintiffs have 24

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adduced substantial evidence, much of it uncontroverted, that 1
they were subjected to appalling conditions of confinement to 2
varying degrees and for various time periods. While we recognize 3
that the District Court did not have the benefit of this Court’s 4
guidance in Willey, the plaintiffs’ claims should not have been 5
dismissed on the grounds that the conditions in this case did 6
not exceed ten to twenty-four hours, or result in serious 7
injury. 8
The District Court repeatedly stressed that the plaintiffs 9
were not regularly denied humane conditions of confinement: 10
“Plaintiffs only complain of such issues for a short period of 11
time—an average of ten to twenty-four hours—with nothing more.” 12
Cano, 119 F. Supp. 3d at 73; see also, e.g., id. at 75 (“[T]he 13
uncontroverted evidence establishes that no Plaintiff was 14
regularly deprived access to a toilet.”); id. at 77 (“Here, not 15
a single Plaintiff was exposed to urine, feces, and/or vomit for 16
anything more than a limited period of time because no Plaintiff 17
was held at BCB for more than one twenty-four hour period.”); 18
id. at 79 (“[T]here is no evidence that a single Plaintiff was 19
regularly denied any such toiletry during his or her stay at BCB 20
. . . .”). The District Court essentially ruled that no set of 21
conditions, no matter how egregious, could state a due process 22
violation if the conditions existed for no more than ten to 23
twenty-four hours. This was error. Willey, 801 F.3d at 68. 24

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The District Court also repeatedly stressed the lack of any 1
actual serious injury or illness in the case. See, e.g., Cano, 2
119 F. Supp. 3d at 82 (“Most Plaintiffs did not seek any sort of 3
medical treatment and none of the Plaintiffs provide evidence of 4
having suffered any long term physical or emotional harm due to 5
time spent in the BCB.”). In Willey, 801 F.3d at 68, this Court 6
rejected the argument that a plaintiff must prove a serious 7
injury in order to establish a constitutional violation due to 8
inhumane conditions of confinement. 9
The defendants argue that the District Court’s judgment 10
should be affirmed based on an assessment of the severity and 11
duration of the conditions at issue. They argue that Willey 12
supports their position given its admittedly more extreme facts. 13
They contend that those are the types of facts that constitute 14
an objective deprivation. They further contend that no plaintiff 15
in this case actually suffered a long term, grievous physical or 16
emotional injury, a not-so-subtle attempt to bring the standard 17
full circle back to evaluating objective deprivation by injury. 18
Ultimately, the defendants’ theory appears to be that state 19
officials are free to set a system in place whereby they can 20
subject pretrial detainees awaiting arraignment to absolutely 21
atrocious conditions for twenty-four hour periods (and perhaps 22
more) without violating the Constitution so long as nothing 23
actually catastrophic happens during those periods. That is not 24

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the law. As the District Court aptly stated in denying the 1
defendants’ motion to dismiss, “[o]ur Constitution and societal 2
standards require more, even for incarcerated individuals, and 3
especially for pretrial detainees who cannot be punished by the 4
state.” Cano, 44 F. Supp. 3d at 333. This Court’s cases are 5
clear that conditions of confinement cases must be evaluated on 6
a case-by-case basis according to severity and duration, and 7
instructs that a pretrial detainee’s rights are at least as 8
great as those of a convicted prisoner. Based on the record, the 9
gradation between the conditions of confinement at issue in this 10
case, and those at issue in Willey, may speak to damages, not 11
the absence of an objective constitutional deprivation. 12
B. 13
In addition, the District Court granted summary judgment to 14
the individual defendants because it concluded that the 15
plaintiffs could not establish that the individual defendants 16
had acted with subjective deliberate indifference, as opposed to 17
objective deliberate indifference. The District Court neither 18
analyzed Kingsley, nor had the benefit of our interpretation of 19
Kingsley as set forth in this opinion, which inures to the 20
benefit of the plaintiffs. The defendants argue that the 21
judgment should nevertheless be affirmed based on the standard 22
for deliberate indifference articulated here. The defendants’ 23
argument should be addressed in the first instance by the 24

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District Court. The purported deliberate indifference of the 1
individual defendants must be assessed on an individualized 2
basis with respect to each plaintiff. 17
3
C. 4
The District Court also erred in its application of the 5
well-settled standards for deciding a motion for summary 6
judgment. The District Court did not construe the evidence in 7
the light most favorable to the plaintiffs, nor did it draw all 8
reasonable inferences in their favor. 9
For example, the District Court justified the rejection of 10
the plaintiffs’ inadequate nutrition claims in part by noting 11
that plaintiff Vikki had “claimed that BCB served ‘wonderful 12
cheese and bologna sandwiches.’” Cano, 119 F. Supp. 3d at 80. 13
Although not reflected in the District Court’s opinion, 14
17 The defendants also argue on appeal that the plaintiffs have
failed to establish that the individual defendants had any
personal involvement in any of the challenged conditions of
confinement. As counsel for the defendants conceded at oral
argument, although the defendants raised the personal
involvement argument on their motion to dismiss, they did not
renew the argument in their motion for summary judgment. In
their summary judgment papers, the defendants only raised the
personal involvement argument with respect to the former First
Deputy Commissioner of the NYPD, Raphael Pineiro, who is no
longer a party to this action. See note 2, supra. The
defendants’ argument is accordingly not preserved for review and
deemed waived. See, e.g., Wal-Mart Stores, Inc. v. Visa U.S.A.,
Inc., 396 F.3d 96, 124 n.29 (2d Cir. 2005). In any event, the
plaintiffs’ claims against the individual defendants rely on the
evidence that the individual defendants personally toured BCB on
a daily basis, and were thus aware of the conditions at the
holding facility.

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49
plaintiff Vikki later clarified in her deposition that she did 1
not eat the sandwiches “[b]ecause the cheese was dry, the bread 2
was dry, and [she] wouldn’t feed it to [her] dog.” Construed in 3
the light most favorable to the plaintiffs, plaintiff Vikki’s 4
comment about “wonderful” sandwiches was sarcastic. 5
In another example, the District Court noted that plaintiff 6
Guarino had asked for a sanitary napkin to clean herself because 7
she was menstruating and “bleeding all over [her]self,” but the 8
District Court indicated that there was no proof that “any 9
officer at BCB acted with a sufficiently culpable state of 10
mind.” Id. at 84. This ignored plaintiff Guarino’s testimony 11
that, after repeatedly asking for a sanitary napkin, she only 12
desisted because she observed an officer threaten another 13
detainee with delayed arraignment if that detainee made any 14
additional requests. 15
Moreover, the District Court discounted as a mere matter of 16
preference the plaintiffs’ testimony that toilets were unusable, 17
reasoning that the plaintiffs were not “denied access” to 18
toilets. Id. at 75-76. That frames the plaintiffs’ testimony far 19
too narrowly. The plaintiffs’ testimony was that the toilets (if 20
there were any toilet in the particular cell) could not be used 21
for bowel movements because the toilets lacked privacy, and 22
because the toilets were not kept in such a way that they could 23
reasonably be used. The plaintiffs’ theory is that the toilets 24

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50
were maintained by deliberately indifferent officers in such a 1
manner that they were unusable. It is not a reasonable inference 2
that the plaintiffs merely decided not to use the toilets, 3
especially when one plaintiff defecated in his pants, another 4
defecated without toilet paper, and a third had an anxiety 5
attack that required hospitalization because he was “holding 6
[his] bowel for about four hours.” 7
Contrary to the District Court’s ruling that the individual 8
defendants “establish[ed] [that] they responded reasonably to 9
any risk that existed,” see id. at 83-85, the evidence about 10
regularly scheduled cleanings and pest control visits, at best, 11
established that there are genuine disputes as to material facts 12
concerning the handling of sanitation issues at BCB. The fact of 13
thrice daily visits by cleaning crews, even if undisputed, would 14
not eliminate the force of the plaintiffs’ testimony that the 15
cleaning crews did not do what was needed to clean the cells, or 16
remedy the non-functioning toilets. 17
D. 18
The District Court also granted summary judgment for the 19
defendants on the grounds that the plaintiffs could not 20
establish a claim based on punitive intent; that the individual 21
defendants were entitled to qualified immunity; and that the 22
plaintiffs could not establish that the City had Monell 23
liability. In light of the foregoing rulings, we vacate these 24

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rulings as well, although we do not decide how those issues 1
should be decided using the proper standards, including the 2
standards for a due process claim for deliberate indifference to 3
the conditions of confinement described above. 4
With respect to the plaintiffs’ punitive intent theory, the 5
District Court should reconsider the dismissal of that theory in 6
light of the evidence of the objectively serious conditions of 7
confinement. 8
With respect to qualified immunity and Monell liability, 9
the District Court based its rulings solely on its finding that 10
no plaintiff could establish an objective due process 11
deprivation. Because we disagree with that conclusion, we vacate 12
the qualified immunity and Monell liability rulings, and remand 13
those issues for further consideration in light of this 14
opinion. 18 See, e.g., Jova v. Smith, 582 F.3d 410, 418 n.4 (2d 15
Cir. 2009) (per curiam) (remanding the issue of qualified 16
immunity where the district court did not consider the question 17
in the first instance). 18
18 The parties dispute whether letters from the Correctional
Association of New York---which the defendants contend support
the conclusion that the individual defendants are entitled to
qualified immunity---are inadmissible hearsay. The District
Court never ruled on this issue and, because we do not reach the
qualified immunity issue, we do not reach the admissibility
issue.

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CONCLUSION 1
For the reasons explained above, the judgment is AFFIRMED 2
in part, and VACATED in part, and the case is REMANDED for 3
further proceedings consistent with this opinion. 4

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