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Advocating for Objective Standards in a Post-Kingsley World

by Megha Ram, Roderick & Solange MacArthur Justice Center

A fight over the correct standard for jail conditions cases is playing out in courts across the country. This is an important fight with far-reaching consequences for the constitutional rights of pretrial detainees.

It stems from the Supreme Court’s decision in Kingsley v. Hendrickson, 576 U.S. 389 (2015). The petitioner in this case, Michael Kingsley, explained that jail guards handcuffed him, slammed his head into a concrete bunk, and stunned him with a taser—all because he would not remove a piece of paper covering a light in his jail cell. Id. at 392-93.

Mr. Kingsley sued the guards , alleging (among other things) that the guards used excessive force against him in violation of the Fourteenth Amendment. Id. at 393. The case went to trial and the jury found in the guards’ favor. Id. at 394. On appeal, Mr. Kingsley argued that the jury had been improperly instructed on what he had to show to establish excessive force. Id. The Supreme Court agreed: as a pretrial detainee, Mr. Kingsley was not required to show that the guards “were subjectively aware that their use of force was unreasonable,” as the jury was instructed, but “only that the officers’ use of that force was objectively unreasonable. Id. at 392. After Kingsley, then, the impossibly high subjective standard can no longer stand in the way of pretrial detainees bringing claims of excessive force.

But the Kingsley Court did not say explicitly whether the objective standard also applies to pretrial detainees’ non-force claims—like medical care, failure to protect, and general conditions claims—instead leaving appellate courts to grapple with that question. Eight appellate courts have now weighed in. Four of them—the Second, Sixth, Seventh, and Ninth Circuits—have relied on the logic of Kingsley to overturn pre-Kingsley subjective standards for medical care claims and replace them with objective standards in:

• Brawner v. Scott Cty., 14 F.4th 585 (6th Cir.), rehearing en banc denied, 18 F.4th 551 (2021) [See also: PLN, Mar. 2022, p.52];

• Miranda v. Cty. of Lake, 900 F.3d 335 (7th Cir. 2018) [See also: PLN, Feb. 2019, p.38];

• Gordon v. Cnty. of Orange, 888 F.3d 1118 (9th Cir. 2018) [See also: PLN, Dec. 2021, p.36]; and

• Bruno v. City of Schenectady, 727 F. App’x 717, 720-21 (2d Cir. 2018).

Before these decisions, pretrial detainees jailed in these jurisdictions were required to show that guards who denied them medical care acted with culpable states of mind. Now, they need not bear such a heavy burden. They must instead show only that guards denied them care despite the existence of serious medical risks that reasonable jail staff should have known about. Post-Kingsley, several of these circuits have likewise applied objective standards to failure to protect claims, general conditions of confinement claims, or both, e.g. in:

• Hardeman v. Curran, 933 F.3d 816, 822 (7th Cir. 2019) (general conditions of confinement) [See also: PLN, Dec. 2019, p.27];

• Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017) (general conditions of confinement);

• Kemp v. Fulton Cty., 2022 U.S. App. LEXIS 5186 (7th Cir.); (failure to protect); and

• Castro v. Cty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc) (failure to protect). 

Meanwhile, four other circuits—the Fifth, Eighth, Tenth, and Eleventh Circuits—have explicitly rejected arguments to adopt objective standards post-Kingsley in one or more non-force contexts, e.g. in:

• Strain v. Regalado, 977 F.3d 984 (10th Cir. 2020) (medical care);

• Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415 (5th Cir. 2017) (failure to protect and medical care) [See also: PLN, Sept. 18, 2017];

• Dang ex rel. Dang v. Sheriff, Seminole Cty., 871 F.3d 1272 (11th Cir. 2017) (medical care);

• Whitney v. City of St. Louis, 887 F.3d 857 (8th Cir. 2018) (failure to protect); but see Stearns v. Inmate Servs. Corp., 957 F.3d 902, 908 & n.6 (8th Cir. 2020) (declining to “decid[e] the impact of Kingsley,” but applying “objective standard of Bell” in conditions of confinement case) [See also: PLN, Nov. 2021, p.46].

The final four circuits—the First, Third, Fourth, and DC Circuits—remain undecided. It is in these circuits that the promise of Kingsley remains open for the taking. Pretrial detainees bringing non-force claims in these jurisdictions should invoke Kingsley to argue for objective standards and, in so doing, can begin chipping away at the impunity that jailers all too often enjoy.

The Supreme Court could, of course, close the door that it opened in Kingsley. In fact, jailers and their employees have been asking it to do just that ever since Kingsley was decided. So far, the Court has declined these invitations. See, e.g.:

• Los Angeles Cty. v. Castro, 137 S. Ct. 831 (2017) (denying certiorari);

• Cty. of Orange v. Gordon, 139 S. Ct. 794 (2019) (same); and

• Dart v. Mays, 142 S. Ct. 69 (2021) (same).

But another petition for certiorari is pending and there is no predicting what the Court will do. See: Scott Cty. v. Brawner, S. Ct., Case No. 21-1210. For now, though, there is no reason to let up.  

Megha Ram is an Appellate Attorney in the Supreme Court & Appellate Program of the Roderick & Solange MacArthur Justice Center.

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Related legal cases

Kemp v. Fulton County

Brawner v. Scott Cty.

Strain v. Regalado

Hardeman v. Curran

Miranda v. County of Lake

Gordon v. County of Orange

Bruno v. City of Schenectady

Alderson v. Concordia Parish Correctional Facility

Darnell v. Pineiro


Plaintiffs — Appellants,
Nakaita Moore, Jahmel Lawyer, Peter Eppel,


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,

† The Clerk of Court is respectfully requested to amend the caption to conform to the above.

Docket No. 15-2870

2017 U.S. App. LEXIS 2911

September 22, 2016, Argued

February 21, 2017, Decided

PRIOR HISTORY: Twenty state pretrial detainees brought individual § 1983 [*1] claims in the same complaint alleging that the City of New York and the supervisory officers of a pre-arraignment holding facility (collectively, "the defendants") were deliberately indifferent to allegedly unconstitutional conditions of confinement at the holding facility. The United States District Court for the Eastern District of New York (Kuntz, J.) granted summary judgment in favor of the defendants, denied the detainees' motion to reconsider that judgment, and denied a subsequent motion to reconsider the denial of the motion for reconsideration. The detainees appealed. The detainees concede that certain claims were properly dismissed. As to those claims, we affirm the District Court's judgment. However, because there were genuine disputes as to material facts with respect to the challenged conditions of confinement, the individual defendants' knowledge of those conditions, and the failure to remedy those conditions, as well as to the liability of the City of New York, we vacate the judgment as to the remaining claims that were dismissed and remand for further proceedings.

COUNSEL: SCOTT A. KORENBAUM (Stephen Bergstein, on the brief), [*2] Bergstein & Ullrich, LLP, Chester, NY, for Plaintiffs-Appellants.

ZACHARY W. CARTER, (Richard Dearing, Devin Slack, Kathy Chang Park, on the brief), Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellees.

JUDGES: Before: LEVAL AND LOHIER, Circuit Judges, and KOELTL, District Judge.*

* Judge John G. Koeltl, of the United States District Court for the Southern District of New York, sitting by designation.


John G. Koeltl, District Judge:

This is a case about unconstitutional conditions of confinement for pretrial detainees. Twenty state pretrial detainees ("the plaintiffs")1 arrested on separate dates between July 10, 2011, and July 23, 2013, brought individual § 1983 claims in the same complaint against the City of New York (the "City"), New York City Police Department ("NYPD") Captain Kenneth Kobetitsch, and NYPD Captain William Tobin (the "individual defendants") (collectively, "the defendants").2 The plaintiffs alleged that they were each subjected to appalling conditions of confinement while held pre-arraignment at Brooklyn Central Booking ("BCB") with deliberate indifference to the deprivation of their Fourteenth Amendment due process rights. Because BCB was only a pre-arraignment holding facility, no plaintiff was held at BCB for more than twenty-four hours.


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 First Deputy Commissioner of the NYPD. The judgment dismissing the claims against Mr. Pineiro is accordingly affirmed.

The United States District Court for the [*3] Eastern District of New York (Kuntz, J.) granted summary judgment to the defendants, reasoning that the plaintiffs failed to meet both the objective and subjective requirements for a claim of unconstitutional conditions of confinement based on a theory of deliberate indifference. The District Court concluded that, with respect to the "objective prong," no plaintiff could establish an objectively substantial deprivation of any constitutional rights because no plaintiff actually suffered a serious injury, or was "regularly denied his or her basic human needs or was exposed to conditions that posed an unreasonable risk of serious damage to his or her future health" for more than twenty-four hours; nor could any plaintiff establish the "subjective prong" of a deliberate indifference claim by proving that the individual defendants were actually aware of any dangerous conditions, or that the individual defendants acted unreasonably in responding to any such conditions; nor, for similar reasons, could the plaintiffs establish that the individual defendants acted with punitive intent. See Cano v. City of New York, 119 F. Supp. 3d 65, 74, 82, 85-86 (E.D.N.Y. 2015). Because no plaintiff could prove a constitutional deprivation, the District Court also held that the [*4] individual defendants were entitled to qualified immunity, and that the plaintiffs could not establish that the City was liable pursuant to Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690-91 (1978). See Cano, 119 F. Supp. 3d at 86-87.

The District Court issued its opinion shortly after the Supreme Court's decision in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), in which the Supreme Court held that, for excessive force claims brought under the Due Process Clause of the Fourteenth Amendment, "a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable." Id. at 2473. The Court rejected the requirement that, for such claims, a pretrial detainee establish a state of mind component to the effect that the official applied the force against the pretrial detainee "maliciously and sadistically to cause harm." Id. at 2475 (citation omitted). The District Court's opinion was also issued two weeks before this Court's decision in Willey v. Kirkpatrick, 801 F.3d 51, 66-68 (2d Cir. 2015), in which this Court held that while the proper inquiry for a conditions of confinement claim is by reference to the duration and severity of the conditions, the claim did not require a "minimum duration" or "minimum severity" to reach the level of a constitutional violation. This Court further made clear that a "serious injury is unequivocally not a necessary element of an Eighth Amendment [conditions of confinement] claim." [*5] Id. at 68.

The District Court did not analyze the implications of Kingsley in its opinion. Moreover, the District Court denied the plaintiffs' motion for reconsideration based on Willey, as well as the plaintiffs' later motion for reconsideration of the order denying the first motion for reconsideration, because the District Court found that the plaintiffs' appeal of the summary judgment order divested it of jurisdiction over the case.

Among other issues, this case requires us to consider whether, consistent with Willey, and the precedents on which it is based, appalling conditions of confinement cannot rise to an objective violation of the Fourteenth Amendment's Due Process Clause so long as the detainee is subjected to those conditions for no more than twenty-four hours, and the detainee does not suffer an actual, serious injury during that time. This case also requires us to consider whether Kingsley altered the standard for conditions of confinement claims under the Fourteenth Amendment's Due Process Clause.3


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 Click for Enhanced Coverage Linking Searches, 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.").

For the reasons explained below, we affirm in part, and vacate in part, the District Court's judgment, and remand the case to the District Court for further proceedings.


In reviewing the District Court's grant of summary [*6] judgment in favor of the defendants, "we construe the evidence in the light most favorable to the Plaintiffs, drawing all reasonable inferences and resolving all ambiguities in their favor." CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 118 (2d Cir. 2013) (citation and internal quotation marks omitted). 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." Fed. R. Civ. P. 56(a). Our review is de novo. Ruggiero v. County of Orange, 467 F.3d 170, 173 (2d Cir. 2006).


This is a lawsuit on behalf of twenty individual plaintiffs rather than a class action. As such, this is a review of a judgment dismissing the separate claims of twenty plaintiffs that were filed in a single complaint.

In its analysis, the District Court did not perform individualized assessments of each plaintiff's claims, reasoning instead that, because no plaintiff's confinement at BCB exceeded twenty-four hours, and no plaintiff suffered an actual, serious physical injury, no plaintiff could establish a violation. As discussed below, the District Courted erred in its analysis. Although the evidence differed with respect to the conditions that each plaintiff was subjected to, we summarize the facts in the light most favorable to the plaintiffs as a group [*7] to explain the error in the District Court's grant of summary judgment dismissing the Second Amended Complaint. On remand, however, it will be necessary for the District Court to analyze each plaintiff's claims, both with respect to the conditions of confinement experienced by each plaintiff, and the personal involvement of the individual defendants with respect to the claims of each plaintiff.



During the relevant period, BCB was a temporary holding facility located at 275 Atlantic Avenue, Brooklyn, New York, that held recently arrested pretrial detainees awaiting arraignment. BCB has since been relocated to a different facility in Brooklyn. The facility at issue in this dispute is no longer used to hold pretrial detainees.4


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.

Individual defendant Captain Kenneth Kobetitsch was the commanding officer at BCB through July 2011, and his tenure only overlapped with the detention of plaintiff Glenn.5 Thereafter, beginning on August 29, 2011, individual defendant Captain William Tobin became BCB's commanding officer, a position he still holds, and his tenure overlapped with the detention of the other plaintiffs. During their respective tenures, Captain Kobetitsch and Captain Tobin supervised [*8] the officers and the staff at BCB. Captain Kobetitsch and Captain Tobin toured and inspected BCB daily, including its holding cells. Captain Tobin testified that he monitored BCB for "cleanliness."


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.

BCB had eight holding cells, six designated for use by men and two by women. Subordinate officers guarded detainees and also purportedly received "training and instructions with respect to, among other things, transferring detainees between cells, ensuring that there [was] an appropriate number of detainees in individual cells, so as to avoid overcrowding, handling and providing food and beverages to detainees, proper sanitation procedures, and the proper method for handling and disposing of human excrement."


On separate dates between July 10, 2011, and July 23, 2013, each plaintiff was arrested and detained in holding cells at BCB.6 Because BCB is a temporary holding facility, each plaintiff was held in custody at BCB from between ten to twenty-four hours. While detained at BCB during the two-year period, each plaintiff was allegedly subjected to one or more degrading conditions of confinement that purportedly constitute nine types of constitutional deprivations: (1) Overcrowding; (2) [*9] Unusable Toilets; (3) Garbage and Inadequate Sanitation; (4) Infestation; (5) Lack of Toiletries and Other Hygienic Items; (6) Inadequate Nutrition; (7) Extreme Temperatures and Poor Ventilation; (8) Deprivation of Sleep; and (9) Crime and Intimidation. The evidence adduced related to each condition, construed in the light most favorable to the plaintiffs, is discussed in turn.


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.

1. Overcrowding. The plaintiffs consistently testified that, for the majority of their respective confinements at BCB, they and other detainees were packed into overcrowded cells designed for, at best, one-half to one-third the actual capacity. For example, one plaintiff testified that his holding cell was so crowded that he could not determine if it had a toilet. Another plaintiff described his cell as "having no room to even stand" because it was "stuffed . . . like a can of sardines."

The plaintiffs testified that, because the cells were so full, there was often only space to stand for hours at a time, and that being forced to stand for hours continuously was painful and degrading. Even when there was space in the cells, the plaintiffs were reluctant to sit or lie down because the floors were filthy. As one [*10] plaintiff testified, he only sat down "out of extreme necessity" because he was "exhausted" and "dehydrated." While cells contained hard benches, there were not nearly enough benches in any given cell to accommodate its numerous occupants.

2. Unusable Toilets. Each cell at BCB contained, at best, one exposed toilet that lacked a seat, lid, toilet paper, or sufficient privacy partitions to conceal a toilet user from his or her fellow holding mates. One plaintiff, who was too tired to remain

Castro v. Cty. of Los Angeles