23-7710 (L) Calix v. United States

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of July, two thousand twenty-four.

PRESENT: JOSEPH F. BIANCO, SARAH A. L. MERRIAM, Circuit Judges, JANE A. RESTANI, Judge. ∗ __________________________________________

ANDRE CALIX,

Plaintiff-Appellant,

v. 23-7710-pr; 23-7721-pr UNITED STATES OF AMERICA, LIEUTENANT THOMAS POPE,

Defendants-Appellees,

FEDERAL BUREAU OF PRISONS, WARDEN HERMAN QUAY, CORRECTIONAL OFFICER WHITMAN CHAN, CORRECTIONAL OFFICER ANDREW LIVINGSTON,

Defendants.

∗ Judge Jane A. Restani, of the United States Court of International Trade, sitting by designation. __________________________________________

FOR PLAINTIFF-APPELLANT: Andre Calix, pro se, Danbury, Connecticut.

FOR DEFENDANTS-APPELLEES: Varuni Nelson, Anjna Kapoor, Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, New York.

Appeal from a judgment of the United States District Court for the Eastern District of New

York (Rachel P. Kovner, Judge).

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

DECREED that the judgment, entered on October 18, 2023, is AFFIRMED.

Plaintiff-Appellant Andre Calix, proceeding pro se, appeals from the district court’s award

of summary judgment in favor of Defendants-Appellees the United States and Lieutenant Thomas

Pope (together, “Defendants”) on his Eighth Amendment failure-to-protect claim against

Lieutenant Pope under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

(1971), and his negligence claim against the United States under the Federal Tort Claims

Act (“FTCA”),

(b), 2671 et seq. Both claims arise from an incident that took

place on May 22, 2018 at the Metropolitan Detention Center (“MDC”), operated by the Federal

Bureau of Prisons (“BOP”) in Brooklyn, New York. Calix alleges that, on that date, his cellmate

(“Inmate A”)—who had recently been transferred to MDC and was under investigation for

assaulting his cellmate at his former federal facility—threw a bowl of hot water on Calix, causing

second-degree burns across twenty percent of his body. After discovery, Defendants moved for

summary judgment on both claims, and Calix cross-moved for summary judgment on his FTCA

claim. The district court ultimately granted Defendants’ motion in its entirety, concluding that

Calix does not have a cause of action under Bivens and that Calix had not adduced evidence from

which a rational fact-finder could find the United States liable for negligence under the FTCA.

2 Calix challenges both conclusions on appeal. We assume the parties’ familiarity with the

underlying facts, procedural history, and issues on appeal, to which we refer only as necessary to

explain our decision to affirm.

We review the district court’s grant of summary judgment de novo. See Dalberth v. Xerox

Corp.,

(2d Cir. 2014). “We affirm the grant of summary judgment only where

‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.’” Darnell v. Pineiro,

(2d Cir. 2017) (quoting Fed. R. Civ. P. 56(a)).

“We may find for the moving party only if we conclude that on the record presented, considered

in the light most favorable to the non-moving party, no reasonable fact-finder could find in its

favor.” Roberts v. Genting N.Y. LLC,

(2d Cir. 2023) (alterations adopted) (internal

quotation marks and citation omitted). We may affirm on any ground sufficiently presented by the

record. E.M. v. N.Y.C. Dep’t of Educ.,

, 456 n.18 (2d Cir. 2014).

I. Bivens Claim

Although the district court concluded that Bivens does not extend to Eighth Amendment

failure-to-protect claims against prison officials, we need not address that issue because, even

assuming arguendo that a Bivens remedy exists in this context, Calix has not presented evidence

sufficient to permit a reasonable jury to find in his favor on this claim. See Ashcroft v. Iqbal,

(2009) (assuming without deciding that a claim was actionable under Bivens).

A failure-to-protect claim requires proof of deliberate indifference, which, depending on

the constitutional right implicated, requires showing that the defendant either (1) knew of and

disregarded a serious risk (Eighth Amendment), 1 or (2) should have known about the risk but

1 “[A]n inmate seeking to establish an Eighth Amendment violation for failure to protect or deliberate indifference to safety must prove (1) that the plaintiff is incarcerated under conditions posing a substantial risk of serious harm, and (2) that the prison official had a sufficiently culpable state of mind, which in

3 recklessly failed to act (Due Process Clause). See Vega v. Semple,

, 273–74 (2d Cir.

2020). A defendant is culpable only if his own conduct amounted to a constitutional violation.

See Tangreti v. Bachmann,

(2d Cir. 2020).

Even under the more-lenient due process standard, Calix failed to create a genuine dispute

of material fact as to whether Lieutenant Pope “knew, or should have known, that the condition

posed an excessive risk to health or safety.” Vega,

. More specifically, it is

undisputed that, before the attack on May 22, 2018, Calix and Inmate A “did not have any physical

or verbal fights.” App’x at 206; see also

(“Before the incident on May 22, 2018, Inmate A

never threatened Plaintiff and Plaintiff never threatened Inmate A.”). Calix admitted that he “never

made any complaints about Inmate A,” and that he was “surprised” when Inmate A threw hot water

on him in this “unprovoked” attack. App’x at 204–06; see Vickers-Pearson v. City of New York,

No. 18CV08610(KPF),

, at *6 (S.D.N.Y. Sept. 24, 2020) (“[T]his was precisely

the sort of surprise altercation that undermines a deliberate indifference claim.”); Zimmerman v.

Macomber, No. 95CV00882(DAB),

, at *5 (S.D.N.Y. Aug. 21, 2001) (“Courts

routinely deny deliberate indifference claims based upon surprise attacks.”); Grant v. Burroughs,

No. 96CV02753(MGC),

, at *3 (S.D.N.Y. Sept. 8, 2000). Moreover, it is

undisputed that, at the time of the incident, Inmate A had a lower “security risk score” than Calix,

and although “the investigation [into the previous incident] was still ongoing,” he “had no prior

disciplinary record with the BOP, nor . . . any pending disciplinary charges.” App’x at 207–08.

Although Calix points to allegations by Inmate A’s former cellmate at another facility,

there is no evidence in the record that, during Lieutenant Pope’s interview of Inmate A regarding

those allegations, there was any indication that an attack on Calix was imminent. Indeed, it is

prison-conditions cases is one of deliberate indifference to inmate health or safety.” Morgan v. Dzurenda,

(2d Cir. 2020) (alteration adopted) (internal quotation marks and citation omitted).

4 uncontroverted that Inmate A did not mention Calix or express a desire to change cells during the

interview. In short, Calix presented no evidence at summary judgment that Lieutenant Pope had

reason to know that Inmate A posed an actual risk to Calix—with whom he had no prior dispute—

based on an earlier, still-under-investigation dispute between Inmate A and his previous cellmate

at another facility. This factual record stands in stark contrast to cases where summary judgment

has been denied on failure-to-protect claims against state prison officials because of evidence of

specific threats against an inmate known to those officials. See, e.g., Morgan, 956 F.3d at 89–90

(vacating summary judgment on failure-to-protect claim when the inmate, a cooperator, reported

threats by another inmate on grievance forms, of which the defendants were aware); Lewis v.

Siwicki,

, 429–33 (2d Cir. 2019) (vacating summary judgment when defendants had

specific information indicating that gang-affiliated plaintiff had been threatened by another inmate

on a high-risk cell block, and plaintiff was eventually attacked by that inmate).

Accordingly, given the factual record presented here, no reasonable fact-finder could find

for Calix on his failure-to-protect claim against Lieutenant Pope, and the district court did not err

in granting summary judgment on this claim.

II. FTCA Negligence Claim

The district court granted Defendants’ motion for summary judgment on Calix’s FTCA

negligence claim after finding that Calix had not presented evidence from which a rational fact-

finder could find that Inmate A’s attack was a foreseeable consequence of negligent conduct. Calix

challenges this ruling on appeal, arguing that the district court failed to consider evidence that BOP

breached its duty to follow certain protocols before releasing Inmate A into the general prison

population. Upon review of the summary judgment record, we agree with the district court that

5 summary judgment was warranted in favor of the United States because no reasonable fact-finder

could find in Calix’s favor on this FTCA claim.

Under the FTCA, the liability of the United States for the negligence of its employees

acting within the scope of employment is determined “in accordance with the law of the place

where the act or omission occurred.”

(b)(1). Therefore, because the conduct

here occurred in New York, the FTCA claim is governed by New York law. See Makarova v.

United States,

(2d Cir. 2000). “Under New York law, the elements of a

negligence claim are: (i) a duty owed to the plaintiff by the defendant; (ii) breach of that duty; and

(iii) injury substantially caused by that breach.” Lombard v. Booz-Allen & Hamilton, Inc.,

(2d Cir. 2002). In New York, a correctional facility “owes a duty of care to

safeguard inmates, even from attacks by fellow inmates.” Sanchez v. State of New York,

(2002). The scope of this “duty to protect inmates is limited to risks of harm that are

reasonably foreseeable.”

. Foreseeability is defined by what the defendant knew or

should have known. See

at 254–55.

Calix has not put forth sufficient evidence from which a rational fact-finder could conclude

that BOP knew or should have known that he was at risk of being attacked by Inmate A. As noted

supra, it is undisputed that Calix and Inmate A had no verbal or physical arguments leading up to

the unprovoked attack, and there is no evidence in the record that would support a rational finding

of foreseeability in connection with this unprovoked attack. See Colon v. State of New York,

(N.Y. App. Div. 3d Dep’t 1994) (holding that an attack by one inmate on another

was not foreseeable because “neither [the victim nor the prison official] knew of any direct

animosity” between the inmates, and there was “no record evidence to indicate that [the assailant]

was a known dangerous prisoner”); see also Roudette v. State of New York,

, 809

6 (N.Y. App. Div. 3d Dep’t 1996) (“The mere occurrence of an unprovoked, unexplained attack by

a fellow inmate who did not have a history of violence and with whom claimant had no prior

contact or difficulties . . . does not equate to negligence on the part of the prison system.”).

Calix argues that the attack was foreseeable because Inmate A was under investigation for

fighting and sexually assaulting his prior cellmate at another facility when he was transferred—in

what Calix alleges was a violation of BOP policy—into general-population housing at MDC. To

be sure, foreseeability is defined “not simply by actual notice but by actual or constructive notice—

by what the State knew or had reason to know.” Sanchez,

(internal quotation

marks and citation omitted). Courts may infer what a facility should have known from a variety

of sources, including policies and practices put in place to address specific risks.

.

However, in this case, Calix has not provided any evidence from which a reasonable inference

could be drawn that the BOP deviated from a policy designed to prevent unprovoked attacks. Thus,

the district court properly concluded that no reasonable fact-finder could find Inmate A’s attack

on Calix foreseeable and granted summary judgment on the FTCA claim.

* * *

We have considered Calix’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

7