Parson v. Cortland County Municipality et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
Drahcir S. Parson,
Plaintiff,
v. 	5:25-CV-956
(AJB/MJK)
Judge Julie Campbell, et al.
Defendants.
_____________________________________________________________________
Drachir S. Parson, Plaintiff, pro se
Mitchell J. Katz, U.S. Magistrate Judge
To the Honorable Anthony J. Brindisi, U.S. District Judge:
REPORT-RECOMMENDATION
Parson commenced this action on July 21, 2025, by filing a
Complaint (Dkt. 1. (“Compl.”)) and moving for leave to proceed in forma
pauperis (“IFP”) (Dkt. 2). The Clerk sent the Complaint and Parson’s
IFP application to the Court for review. On December 8, 2025, this
Court issued an Order and Report-Recommendation, granting Parson’s
IFP application and recommending that the Complaint be dismissed
against:
a. the thirteen judges named in the caption, including
Judge Alexander who was not named in the caption
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but referred to in the body of the Complaint, with
prejudice and without leave to amend because any
amendment would be futile;
b. Michelman with prejudice and without leave to amend
because any amendment would be futile;
c. 	Simser, Healy, Raju, Perfetti, and Kyles with prejudice
and without leave to amend because any amendment
would be futile;
d. Monty with prejudice and without leave to amend
because any amendment would be futile;
e. C.O. Stacey, C.O. Traphagen, C.O. Haskins, C.O.
Dorsett, C.O. Gleason, C.O. Reynolds, C.O. Fosbrook,
C.O. Barhans, S. Delucia, D. Gage, N. Hawks, C.O.
Smith, C.O. Ken Eaton, C.O. Nater, C.O. Barber, and
C.O. Cavanagh without prejudice and with leave to
amend;
f. 	Fenchel, Jarrod Smith, Melissa Smith, and Jones with
prejudice and without leave to amend because any
amendment would be futile;
g. Cute with prejudice and without leave to amend
because any amendment would be futile;
h. Lynch and Helms without prejudice and with leave to
amend;
i. 	Cortland County without prejudice and with leave to
amend;
j. 	the “Cortland County Jail Officials” and “[e]ach
Correction[s] Officer who wrote [parson] a ticket for not
closing [his] gate” without prejudice and with leave to
amend;
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k. Tyler without prejudice and with leave to amend;
l. 	Jobson without prejudice and with leave to amend;
m. Nurse Christine (Jane Doe #46) without prejudice and
with leave to amend;
n. John Doe (Defendant #47 who allegedly “sexually
molested [Parson]”) without prejudice and with leave to
amend; and
o. John Doe – Elmira C.F. (Defendant #49) without
prejudice and with leave to amend.
(Dkt. 9).
The Court also recommended that Parson’s claim against:
a. Raymond and Kiehle proceed and that a response be
required;
b. Clark proceed and that a response be required; and
c. 	Johnston proceed and that a response be required.
(Id.).
Finally, the Court recommended that the Complaint be dismissed
in its entirety without prejudice and with leave to amend for failure to
comply with Fed. R. Civ. P. 8, 10, 18, and 20, and that Parson be
allowed to file an amended pleading and, if the District Court allowed,
commence additional actions where each action asserts claims that
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arise out of the same transactions or occurrences, limited to defendants
allegedly involved in the same, with respect to his claims against the
following Defendants, provided he complies with Fed. R. Civ. P. 8 and
10, 18, and 20:
a. 	C.O. Stacey, C.O. Traphagen, C.O. Haskins, C.O.
Dorsett, C.O., Gleason, C.O. Reynolds, C.O. Fosbrook,
C.O. Barhans, S. Delucia, D. Gage, N. Hawks, C.O.
Smith, C.O. Ken Eaton, C.O. Nater, C.O. Barber, and
C.O. Cavanagh;
b. 	Lynch and Helms;
c. 	Cortland County Jail Officials (Dkt. 1, at 89) and “Each
Correction Officer who wrote ticket for not closing gate”
(Dkt. 1, at 96);
d. 	Raymond and Kiehle;
e. 	J. Tyler only as to the failure to protect claim;
f. 	Clark;
g. 	Johnston;
h. 	Jobson;
i. 	Nurse Christine – Jane Doe #46;
j. 	C.O. John Doe – Auburn C.F.; and
k. 	Cortland County
(Id.).
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On January 20, 2026, the Honorable Anthony J. Brindisi, U.S.
District Judge, issued an Order On Report & Recommendation
accepting this Court’s Order and Report-Recommendation and granting
Parson 30 days from the date of the same to file an amended complaint
for review. (Dkt. 11, pg. 4). On February 19, 2026, Parson timely filed
an Amended Complaint which has been sent to this Court for review.
(Dkt. 14).
I. 	BACKGROUND
The Amended Complaint asserts claims against 7 Defendants
emanating from Parson’s incarceration as a pre-trial detainee at the
Cortland County Jail and Auburn Correctional facility. (Dkt. 14, pg. 7).1
The underlying arrest was a result of allegations that Parson cashed a
forged payroll check. (Dkt. 14, pg. 6). The Court will not provide a
summary of the facts alleged in the Amended Complaint, but will
include them where necessary in the Court’s review of Parson’s claims.
Parson seeks monetary damages. (Dkt. 14, pg. 20).
1 Page references are to the page numbers assigned by the CM/ECF pagination
system.
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II. 	STANDARD OF REVIEW
Because Parson seeks relief from an officer or employee of a
governmental entity, the Court must consider the sufficiency of the
allegations set forth in the Complaint under 28 U.S.C. §§ 1915(e)(2) and
1915A.2 Section 1915(e)(2) of Title 28 of the United States Code directs
that, “when a plaintiff seeks to proceed in forma pauperis, the court
shall dismiss the case at any time if the court determines that – . . . (B)
the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief against a
defendant who is immune from such relief.” Ismail v. Albany City Sch.
Dist., No. 26-CV-297 (AJB/DJS), 2026 WL 1266259, at *7 (N.D.N.Y.
Apr. 2, 2026) (citing 28 U.S.C. § 1915(e)(2)(B)) report and
recommendation adopted 2026 WL 1266275 (N.D.N.Y. May 8, 2026).
Similarly, under 28 U.S.C. § 1915A, a court must review any
“complaint in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity”
2 28 U.S.C. § 1915(h) provides that “[a]s used in this section, the term ‘prisoner’
means any person incarcerated or detained in any facility who is accused of,
convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law
or the terms and conditions of parole, probation, pretrial release, or diversionary
program.”
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and must “identify cognizable claims or dismiss the complaint, or any
portion of the complaint, if the complaint . . . is frivolous, malicious, or
fails to state a claim upon which relief may be granted; or . . . seeks
monetary relief from a defendant who is immune from such relief.” 28
U.S.C. § 1915A(b). The term “prisoner” includes pretrial detainees. 28
U.S.C. § 1915A(c).
Additionally, when reviewing a complaint, the Court must also
look at Fed. R. Civ. P. 8, which states that a claim for relief shall
contain, inter alia, “a short and plain statement of the claim showing
that the pleader is entitled to relief.” See Fed. R. Civ. P. 8(a)(2). The
purpose of Rule 8 “is to give fair notice of the claim being asserted so as
to permit the adverse party the opportunity to file a responsive answer
and prepare an adequate defense.” Ismail, 2026 WL 1266259, at *7.
A court should not dismiss a complaint if the plaintiff has stated
“enough facts to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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While the court should construe the factual allegations in the light most
favorable to the plaintiff, “the tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable to legal
conclusions.” Id. “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id.
(citing Twombly, 550 U.S. at 555). Rule 8 “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. Thus,
a pleading that contains only allegations which “are so vague as to fail
to give the defendants adequate notice of the claims against them” is
subject to dismissal. Maurer v. Zulauf, No. 26-CV-359 (AMN/MJK),
2026 U.S. Dist. LEXIS 95196, at *3 (N.D.N.Y. Apr. 30, 2026) (quoting
Sheehy v. Brown, 335 Fed. App’x 102, 104 (2d Cir. 2009)).
The Court will construe the allegations in Parson’s Amended
Complaint with the utmost leniency. See, e.g., Haines v. Kerner, 404
U.S. 519, 520 (1972) (holding that a pro se litigant’s complaint is to be
held “to less stringent standards than formal pleadings drafted by
lawyers.”).
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III. 	DISCUSSION
The Court recommends that Parson’s claims against:
1. Clark survive sua sponte review and that a response
be required;
2. Johnston survive sua sponte review and that a
response be required;
3. Raymond survive sua sponte review and that a
response be required;
4. Kiehle survive sua sponte review and that a
response be required;
5. Helms and Lynch be dismissed with prejudice and
without leave to amend; and
6. Cortland County survive sua sponte review and that
a response be required.
The Court also recommends that the District Court exercise
supplemental jurisdiction over Parson’s state law claims.
A. Clark
The Amended Complaint plausibly alleges a claim against Clark
for excessive force under the Fourteenth Amendment because Clark
directed Johnston to pepper spray Parson after Parson was subdued.
The Court therefore recommends that Parson’s Fourteenth Amendment
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claim for excessive force survive sua sponte review and that a response
be required.
A pretrial detainee bringing a Fourteenth Amendment excessive-
force claim must plausibly allege the defendant acted deliberately and
“that the force purposely or knowingly used against him was objectively
unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 396-99 (2015).
Factors to consider in determining the objective reasonableness of the
force used under the Fourteenth Amendment include:
the relationship between the need for the use of force and the
amount of force used; the extent of the plaintiff's injury; any
effort made by the officer to temper or to limit the amount of
force; the severity of the security problem at issue; the threat
reasonably perceived by the officer; and whether the plaintiff
was actively resisting.
Id. at 397. “[A] claim of excessive force,” under the Fourteenth
Amendment, “may be established even if the victim does not suffer
‘serious,’ or ‘significant’ injury, provided that the amount of force used is
more than ‘de minimis,’ or involves force that is ‘repugnant to the
conscience of mankind.’” United States v. Walsh, 194 F.3d 37, 47-48 (2d
Cir. 1999) (quoting Hudson v. McMillian, 503 U.S. 1, 7-10, (1992)).
“Pepper spray can be considered objective excessive force.”
Celestin v. Angeletta, No. 19-CV-1887, 2021 WL 1062344, at *4
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(S.D.N.Y. Mar. 19, 2021). “Even a single burst of chemical spray can
constitute more than a de minimis use of force.” Urena v. City of New
York, No. 22-CV-4679, 2024 WL 4149182, *5 (S.D.N.Y. Sep. 10, 2024).
The “infliction of pepper spray” may have a “variety of incapacitating
and painful effects, and [thus], its use constitutes a significant degree of
force.” Tracy v. Freshwater, 623 F.3d 90, 98 (2d Cir. 2010).
The Amended Complaint alleges that on November 21, 2022,
Parson asked Defendant Clark to “just simply turn off [his] light.” (Dkt.
14, pg.10, at ¶ 6). In response, Clark stated “you wanna go?” “meaning
you wanna fight.” (Id.). Clark then ordered Johnston to open Parson’s
cell. Clark entered Parson’s cell with his “hands up” and both began
throwing punches at one another. (Id.). Parson then “quickly allowed
Johnston to get [him] to the ground laying on [his] chest first and hand
behind [his] back where [he] was handcuffed.” (Id.). Once subdued,
Parson alleges that Clark “tells Johnston to spray [him].” (Dkt. 14, pg.
10, ¶ 7). Hesitating, Johnston asked Clark “[y]ou want me to spray
him?” and Clark responded “[y]eah, spray him.” (Id.).
The Amended Complaint plausibly alleges that Clark personally
directed Johnston to pepper spray Parson knowing that Parson was
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handcuffed and that the use of the pepper spray did not serve any
legitimate penological purpose. “A defendant who plans or directs an
unreasonable use of force is liable for the resulting constitutional
violation as a direct participant.” Terebesi v. Torreso, 764 F.3d 217, 234
(2d Cir. 2014). “In this Circuit, a ‘direct participant’ includes a person
who authorizes, orders, or helps others to do the unlawful acts, even if
he or she does not commit the acts personally.” Id.; see also Campbell v.
City of Yonkers, No. 19-CV-2117, 2023 WL 4867459, at *9 (S.D.N.Y.
July 31, 2023).
Because the Amended Complaint plausibly alleges a Fourteenth
Amendment claim for excessive force against Clark, the Court
recommends that it survive sua sponte review and that a response be
required.
B. Johnston
As noted above, Johnston pepper sprayed Parson after he was
subdued. For the same reasons articulated above as to Clark, the Court
recommends that Parson’s claim against Johnston for excessive force
under the Fourteenth Amendment survive sua sponte review and
require a response.
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C. Raymond and Kiehle
Parson plausibly alleges a claim for excessive force under the
Fourteenth Amendment against Raymond and Kiehle. The Court
therefore recommends that Parson’s Fourteenth Amendment claim for
excessive force survive sua sponte review and that a response be
required.3
Parson alleges that once in a holding cell, Raymond “yelled” at
Parson to “kneel” and “slam[ed] [him] face first on the concrete ground.”
(Dkt. 15, pg. 11 at ¶ 9). Parson’s “forehead immediately swole [sic] up.”
(Id.). Kiele then sat on Parson’s “back with [his] hands between [them],
crushing [Parson’s] left thumb breaking it.” (Id., ¶ 10). Parson claims
that Kiehle sat on his “broken thumb for up to 10 minutes while
[Parson] [was] telling him something [was] wrong” and that he could
not “feel [his] hand.” (Id.). The Amended Complaint further alleges that
that “[t]he cuffs cut into the skin on [Parson’s] back” and that his
“wrists were swollen.” (Id., ¶ 11).
3 The legal standard for an excessive claim arising under the Fourteenth
Amendment is articulated in the Court’s discussion of Clark above and will not be
repeated.
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Parson’s allegations plausibly allege that Raymond and Kiele used
excessive force against him. This Court therefore recommends that
Parson’s Fourteenth Amendment claim for excessive force against
Raymond and Kiele survive sua sponte review and that a response be
required.
D. Lynch and Helms
The Court recommends dismissal of the Amended Complaint
against Lynch and Helms with prejudice and without leave to amend
under Fed. R. Civ. P. 8.
Pleadings must contain, among other things, three things: first “a
short and plain statement of the claim showing that the pleader is
entitled to relief,” second, “a short and plain statement of the grounds
for the court’s jurisdiction,” and third, “a demand for the relief
sought[.]” Fed. R. Civ. P. 8(a)(1)-(3). “Although ‘no technical form is
required,’ the Federal Rules make clear that each allegation contained
in the pleading ‘must be simple, concise, and direct.’” Cole v. Smrtic, No.
24-CV-847 (MAD/CFH), 2024 WL 4870495, at *2 (N.D.N.Y. Nov. 21,
2024) (quoting Fed. R. Civ. P. 8(d)). Allegations “so vague as to fail to
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give the defendants adequate notice of the claims against them” are
subject to dismissal. Sheehy , 335 F. App’x at 104 (summary order).
Although the Amended Complaint includes a claim titled “Sheriff
Mark Helms and Captain Nicholas Lynch Supervisory Liability,” which
encompass paragraphs 16-26 thereof, there are no allegations
specifically referencing Helms or Lynch, or attributing any conduct to
either of them. (Dkt. 14, pgs. 12-14 at ¶¶ 16-26). Parson’s vague and
conclusory assertions are insufficient to establish that Lynch and Helms
knew their subordinates engaged in any purported misconduct. The
Amended Complaint lacks facts about what Lynch and Helms did or did
not do to supervise or instruct their subordinates. Parson’s unadorned
claims are insufficient to plausibly allege Lynch and Helms’ personal
involvement in their subordinates’ alleged misconduct. See Villafane v.
Sposato, No. 16-CV-3674, 2017 WL 4179855, at *15 (E.D.N.Y. Aug. 22,
2017) (dismissing plaintiff’s claim because, in part, he “fail[ed] to set
forth any detail regarding how [the supervisory] Defendant . . . failed to
supervise his subordinates or which subordinates he failed to
supervise”); see also McRae v. Gentile, No. 14-CV-783 (GLS/TWD), 2015
WL 7292875, at *5 (N.D.N.Y. Oct. 20, 2015) (“[V]ague and conclusory
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allegations that a supervisor failed to properly monitor the actions of
subordinate employees do not suffice to establish the requisite personal
involvement and support a finding of liability.”) (citing Pettus v.
Morgenthau, 554 F.3d 293, 300 (2d Cir. 2009)); Styles v. Goord, 431 F.
App’x 31, 33 (2d Cir. 2011) (no personal involvement where plaintiff
“did not allege . . . any facts concerning [supervisor defendants’]
particular conduct in supervising their subordinates”). The Court
therefore recommends dismissal of the Complaint against Lynch and
Helms with prejudice and without leave to amend.
Like his initial pleading (Dkt. 1), the Amended Complaint fails to
articulate how Lynch and Helms purportedly failed to train and
supervise their subordinates. Having failed to rectify the deficiencies
noted in the Court’s December 8, 2025, Order and Report
Recommendation (Dkt. 9), it is this Court’s recommendation that any
further amendment would be futile. See Murray v. New York, No. 24-
CV-08015, 2025 WL 370886, at *6 (S.D.M.Y. Feb. 2, 2025) (leave to file
a second amended complaint denied where amended complaint fails to
“correct the deficiencies in [plaintiff’s] prior complaint”).
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E. 	Cortland County
The Amended Complaint plausibly alleges Monell claims against
Cortland County(Dkt. 14, pg. 12-16). And because it does, the Court
recommends that Parson’s claims against Cortland County survive sua
sponte review and that a response be required.
“To hold a municipality liable under § 1983 for the
unconstitutional actions of its employees, a plaintiff is required to plead
and prove three elements: (1) an official policy or custom that (2)
causes the plaintiff to be subjected to (3) a denial of a constitutional
right.” Lucente v. Cnty. of Suffolk, 980 F.3d 284, 297 (2d Cir. 2020)
(cleaned up) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91
(1978)).
“To establish a municipal policy, practice, or custom, a plaintiff
must provide evidence of (1) a formal policy endorsed by the
municipality; (2) actions taken or decisions made by the municipality’s
policymakers, which caused the alleged civil rights violation; (3) a
practice so widespread that it constitutes ‘a custom or usage;’ or (4) a
failure by the municipality’s policymakers to properly train or supervise
their subordinates.” Beckwith v. City of Syracuse, 642 F. Supp. 3d 283,
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292-93 (N.D.N.Y. 2022) (citing Green v. City of New York, 465 F.3d 65,
80-82 (2d Cir. 2006)).
To establish a policy through a ‘“persistent and widespread’
practice by a subordinate municipal employee (or employees) other than
a policymaker, the employee’s unconstitutional conduct must be ‘so
manifest as to imply the constructive acquiescence of senior policy-
making officials.’” Lucente, 980 F.3d at 297-98 (quoting Sorlucco v.
N.Y.C. Police Dep’t, 971 F.2d 864, 870-71 (2d Cir. 1992)). There must be
“sufficient instances of tolerant awareness by supervisors of abusive
conduct to support an inference that they had a policy, custom or usage
of acquiescence in such abuse.” Jones v. Town of East Haven, 691 F.3d
72, 82 (2d Cir. 2012). “It is only at that point that, although not
expressly authorized, the unconstitutional conduct is so persistent and
widespread that it can constitute a custom.” Lucente, 980 F.3d at 298.
Plausibly construed, the Amended Complaint alleges three
potential Monell claims against Cortland County: (1) excessive force
without reporting the same; (2) officers entering the cells of
incarcerated individuals and using excessive force; and (3) failing to
properly train officers on the use of excessive force. (Dkt. 14, pgs. 12-16).
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In addition to the allegations supporting the claims of excessive
force against himself and the letters/grievances attached as Exhibit “C”
to the Amended Complaint, Parson makes the following allegations in
support of his Monell claims:
1. Frank Deangelas was beaten by correction officers Tong and
Stacy who also pepper sprayed Frank yet no hearing was
ever conducted (Dkt. 14, pg. 13, ¶ 20);
2. Alex (an oriental kid) who was locked on [the] same floor as
me in A-block [check records for full name] was also pepper
sprayed by Tong and Stacy prior to 11/21/2022 (Dkt. 14, pg.
13, ¶ 21);
3. Eric Corville was choked until unconscious by C.O. Adam
Raymond days after Raymond slammed me on my face while
cuffed behind my back and blinded by pepper spray. The
choking of Eric Coville happened on 11/27/2022 while Eric
was already restrained and strapped in restraint chair 6:45
p.m. on a Sunday. Johnston who also pepper sprayed
[Parson] was in on jumping Eric days later in the same
holding cell #3 as me where there is no camera (Dkt. 14, pg.
14, ¶ 22);
4. Jeremy Jenning was pepper sprayed in front of me I believe
in December of 2022 and although he got ticket/reports for
the incident he did not have a hearing or get any sanctions. I
witnessed that myself - Again C.O.s Tong and Stacy (Dkt.
14, pg. 14, ¶ 23); and
5. Plaintiff witnessed another inmate get jumped by COs on
12/5/2022. Digoff went into Joe Miller’s cell followed by Cos
Eaton, Abbott, Dorsett, & Traphagen [at] 8 a.m. No ticket
was given/reported [and] incident swept under the rug as if
never happened (Dkt. 14, pg. 14, ¶ 24).
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Although the Second Circuit has not articulated a bright-line rule
for the number of violations required to establish a policy or custom for
Monell purposes, courts have found that evidence of only a handful of
violations is not sufficient. See, e.g., Jones v. Town of East Haven, 691
F.3d 72, 82 (2d Cir. 2012) (holding that evidence of two or three
incidents of unlawful conduct falls “far short” of demonstrating policy or
custom); Giaccio v. City of New York, 308 F. App’x 470, 472 (2d Cir.
2009) (four incidents insufficient); McLennon v. City of New York, 171 F.
Supp. 3d 69, 96 (E.D.N.Y. 2016) (six incidents insufficient). At some
point on this spectrum, however, the number of incidents becomes
cognizable. See, e.g., Davis v. City of New York, 959 F. Supp. 2d 324,
335, 355 (S.D.N.Y. 2013) (reasonable for jury to find Monell liability
when there was evidence of eight similar unconstitutional arrests).
Also, a plaintiff may allege a policy or custom by “cit[ing] to
complaints in other cases that contain similar allegations, provided
those complaints involve factually similar misconduct, are
contemporaneous to the misconduct at issue in the plaintiff's case, and
result in an adjudication of liability.” Jackson v. Nassau Cnty., 552 F.
Supp. 3d 350, 378 (E.D.N.Y. 2021) (cleaned up); but see also Swanson v.
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City of New York, No. 16-CV-3231, 2017 WL 3130322, at *13 (E.D.N.Y.
Jul. 21, 2017) (“Allegations from other complaints, as opposed to
adjudications by courts, do not offer strong support for a municipal
liability claim.”); Cruz v. City of New York, No. 15-CV-2265, 2016 WL
234853, at *5 (finding plaintiff’s reliance on five civil cases asserting
false arrest and malicious prosecution claims insufficient to establish a
custom or policy for Monell purposes as “[a]ll of the cases cited settled
short of adjudication on the merits”); Tieman v. City of Newburgh, No.
13-CV-4178, 2015 WL 1379652, at *17 (S.D.N.Y. Mar. 26, 2015) (finding
“unsubstantiated allegations in lawsuits and complaints” in other
actions “not persuasive” for purposes of alleging a widespread policy or
custom).
The Court is suspect whether Parson’s reliance on the allegations
concerning other incarcerated individuals will ultimately be sufficient
to establish a “persistent and widespread” practice for purposes of
Monell. Specifically, there are no allegations in the Amended Complaint
whether the incidents referenced by Parson are identical to the facts
giving rise to his Fourteenth Amendment excessive force claims and
whether the alleged incidents have been adjudicated. However,
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cognizant of the special solicitude granted to pro se litigants, and the
limitations on review under 28 U.S.C. §1915A, the Court recommends
that Parson’s purported Monell claims survive sua sponte review and
that a response be required. The Court’s recommendation that Parson’s
Monell claims survive sua sponte review does not mean that they will
survive a properly filed dispositive motion.
F. Supplemental Jurisdiction
The Court recommends that the District Court exercise
supplemental jurisdiction over Parson’s state law claims.
Under 28 U.S.C. § 1367, a federal district court may exercise
supplemental jurisdiction over state law claims that “form part of the
same case or controversy” as the asserted federal claims conferring
subject matter jurisdiction. See 28 U.S.C. § 1367(a). A state law claim
forms part of the same case or controversy as a federal claim if the
claims “‘derive from a common nucleus of operative fact’ and are such
that one would ordinarily expect them to be tried in one judicial
proceeding.” People by Abrams v. Terry, 45 F.3d 17, 23 n. 7 (2d Cir.
1995) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725,
(1966)). In determining whether two disputes arise from a “common
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23
nucleus of operative fact,” courts have traditionally asked whether “the
facts underlying the federal and state claims substantially overlapped
. . . [or] the federal claim necessarily brought the facts underlying the
state claim before the court.” Lyndonville Sav. Bank & Trust Co. v.
Lussier, 211 F.3d 697, 704 (2d Cir. 2000)). If a “common nucleus of
operative fact” exists, the exercise of supplemental jurisdiction over the
state law claim “is a favored and normal course of action.” Promisel v.
First Am. Artificial Flowers, Inc., 943 F.2d 251, 254 (2d Cir. 1991).
Parson’s state law claim for assault and battery (Dkt. 14, pg. 14)
derive from the same nucleus of operative facts as his § 1983 claim for
excessive force under the Fourteenth Amendment. The Court therefore
recommends that the District Court exercise supplemental jurisdiction
over Parson’s state law claims.
VI. 	CONCLUSION
WHEREFORE, based on the findings above, it is
RECOMMENDED that:
1. Parson’s claim against Clark survive sua sponte
review and that a response be required;
2. Parson’s claim against Johnston survive sua sponte
review and that a response be required;
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24
3. Parson’s claim against Raymond survive sua sponte
review and that a response be required;
4. Parson’s claim against Kiehle survive sua sponte
review and that a response be required;
5. Parson’s claim against Helms and Lynch be
dismissed with prejudice and without leave to
amend;
6. Parson’s claim against Cortland County survive sua
sponte review and that a response be required; and
7. Supplemental jurisdiction be exercised over Parson’s
state law claims, and it is further
ORDERED, that the Clerk provide Parson with a copy of this
Report-Recommendation, along with copies of the unpublished decisions
cited herein in accordance with the Second Circuit decision in Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
In accordance with 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have fourteen (14) days within which to file written
objections to the foregoing report. Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT
WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE
REVIEW. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing
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25
Small v. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28
U.S.C. § 636 (b)(1); Fed. R. Civ. P. 6(a), 6(d), 72.
Dated: May 19, 2026.
____________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
SALIM S. ISMAIL, Plaintiff,
v.
ALBANY CITY SCHOOL
DISTRICT, et al., Defendants.
1:26-CV-297 (AJB/DJS)
|
Filed 04/02/2026
Attorneys and Law Firms
APPEARANCES:
SALIM S. ISMAIL, Plaintiff, Pro Se, Albany, New York
12210
REPORT-RECOMMENDATION and ORDER
Daniel J. Stewart U.S. Magistrate Judge
*1 The Clerk has forwarded for review a Complaint filed by
Plaintiff. Dkt. No. 1, Compl. The filing fee in this action has
not been paid, but Plaintiff has filed a motion to proceed in
forma pauperis. Dkt. No. 2. That Motion has been granted.
The matter has been referred to the undersigned for an initial
review pursuant to L.R. 72.3.
I. FACTUAL ALLEGATIONS IN THE COMPLAINT
The Complaint is allegedly brought pursuant to 42 U.S.C.
§ 1983, 42 U.S.C. § 1985, 28 U.S.C. § 1343, 28 U.S.C. §
1350, C.P.L.R. § 1411, C.P.L.R. § 7803, 18 U.S.C. § 2333(a),
and 18 U.S.C. § 2441. Compl. at ¶ 19. Named as Defendants
to this action are Albany City School District, Albany City
School District Board of Education, Lynne C. Rutnik, City
of Albany, Robert G. Magee, John Doe, United States of
America, United States Department of Justice, and Pamela J.
Bondi. Id. at p. 1. Ms. Rutnik is identified in the Complaint
as “the incumbent Assistant Superintendent for Secondary
Instruction.” Id. at ¶ 40. The Complaint asserts that “she is
de facto the Attorney General for the Albany City School
District.” Id. Mr. Magee is identified as “the corporate counsel
for the City of Albany,” and is alleged to be “de facto the
Attorney General for the City of Albany.” Id. at ¶ 44. Each of
the individual Defendants named in the Complaint are sued
in their official capacities. Id. at ¶¶ 41, 45, & 50.
The nature of Plaintiff's allegations is unclear. The Complaint
raises issue with “Albany City School District's utter refusal
to enroll [Plaintiff] in the AP Calculus BC Class like [he]
wanted & needed for [his] future.” Id. ¶ 12. According to
the Complaint, this decision was made by Plaintiff's then-
counselor, Laurie Bebb, 1 who allegedly refused to enroll
Plaintiff in the course. Id. ¶ 13. The Complaint also takes
issue with “Albany City School District removing [Plaintiff]
from and refusing to let [him] take the SAT on 4 Nov.
2023 at Albany High School pursuant to their 2 Nov. 2023
stay order.” Id. at ¶ 12. The Complaint further explains that
Plaintiff “was issued a stay away order on 2 Nov. 2023
from Lori A. McKenna, then-Assistant Superintendent for
Secondary Instruction, and Vincent Thompson, then-Director
of Safe Schools and Violence Prevention, that was served
to [Plaintiff] by Albany Police officer Nicholas A. Schuler 2
and a few other Albany Police officers.” Id. The Complaint
also challenges Defendants’ “refusal to send [Plaintiff's]
counsellor letter of recommendation & transcript ... so that
[he] could go to School on a multitude of occasions.” Id.
at ¶ 12. As to this claim, the Complaint states that Plaintiff
asked Ms. Bebb “to sign and send an ED agreement to several
Schools ..., but she refused.” Id. at ¶ 15.
1 Ms. Bebb is not named as a party to this action. See
Compl. at p. 1.
2 Ms. McKenna, Mr. Thompson, and Mr. Schuler are
not named as parties to this action. See id.
The Complaint further alleges that “Albany City School
District[ ] refus[ed] to put [Plaintiff's] summer PreCalc &
AP Calculus AB classes on [his] transcript and remove the
failed PreCalc from [his] transcript,” id. at ¶ 21, and “did
not get [his] money back from CollegeBoard” with regard
to his removal from the SAT. Id. at ¶ 22. According to the
Complaint, Plaintiff was a student at Albany High School
from 2019 to 2023, and graduated in June of 2023. Id. at ¶ 26.
II. GOVERNING LEGAL STANDARD
*2 28 U.S.C. § 1915(e) directs that, when a plaintiff seeks
to proceed in forma pauperis, “(2) ... the court shall dismiss
the case at any time if the court determines that – ... (B)
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the action ... (i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief.”
28 U.S.C. § 1915(e)(2)(B). 3
3 To determine whether an action is frivolous, a court
must look to see whether the complaint “lacks an
arguable basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989).
In reviewing a pro se complaint, the court has a duty to show
liberality toward pro se litigants, see Nance v. Kelly, 912 F.2d
605, 606 (2d Cir. 1990) (per curiam), and should exercise
“extreme caution ... in ordering sua sponte dismissal of a
pro se complaint before the adverse party has been served
and both parties (but particularly the plaintiff) have had an
opportunity to respond,” Anderson v. Coughlin, 700 F.2d 37,
41 (2d Cir. 1983) (internal citations omitted). Therefore, a
court should not dismiss a complaint if the plaintiff has stated
“enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. at 556).
Although a court should construe the factual allegations in
the light most favorable to the plaintiff, “the tenet that a
court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.” Id.
“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id.
(citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “[W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged - but it has not show[n] - that the pleader is entitled
to relief.” Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)).
Rule 8 of the Federal Rules of Civil Procedure “demands
more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell
Atl. Corp. v. Twombly, 550 U.S. at 555). Thus, a pleading
that only “tenders naked assertions devoid of further factual
enhancement” will not suffice. Id. (internal quotation marks
and alterations omitted).
III. DISCUSSION
A. Request for Recusal
The Court first addresses Plaintiff's Letter Motion requesting
recusal. Dkt. No. 3. Plaintiff seeks recusal of all judges in the
Northern District of New York. Id.
“Pursuant to 28 U.S.C. § 455(a), ‘[a]ny justice, judge, or
magistrate judge of the United States shall disqualify himself
in any proceeding in which his impartiality might reasonably
be questioned.’ ” Sposato v. Carey, 2023 WL 10365030, at
*1 (N.D.N.Y. July 27, 2023), report and recommendation
adopted, 2024 WL 637423 (N.D.N.Y. Feb. 15, 2024) (quoting
28 U.S.C. § 455(a)). “In cases where a judge's impartiality
might reasonably be questioned, the issue for consideration
is not whether the judge is in fact subjectively impartial, but
whether the objective facts suggest impartiality.” Lewis v.
Quiros, 2018 WL 11462398, at *1 (D. Conn. Jan. 19, 2018)
(quotation, internal quotation marks, and citation omitted). In
other words, “[t]he ultimate inquiry is whether a reasonable
person, knowing all the facts, [would] conclude that the
trial judge's impartiality could reasonably be questioned.” Id.
(quotation and internal quotation marks omitted) (alteration
in original). “It is well settled that a judge maintains discretion
in the first instance in determining whether to disqualify him
or herself, because ‘[t]he judge presiding over a case is in the
best position to appreciate the implications of those matters
alleged in a recusal motion.’ ” Sposato v. Carey, 2023 WL
10365030, at *1 (quoting In re Drexel Burnham Lambert Inc.,
861 F.2d 1307, 1312 (2d Cir. 1988)) (citation omitted).
*3 Here, in arguing that recusal is necessary, Plaintiff
primarily references prior cases filed by pro se plaintiffs
that were ultimately dismissed, Dkt. No. 3 at pp. 3-6, and
summarily concludes that, consequently, “the prejudice of the
Judges of this Court can reasonably be questioned.” Id. at
p. 4. Plaintiff also takes issue with the result of a prior case
he filed—Case No. 1:24-cv-982 (GTS/PJE)—that was before
a different Magistrate Judge and a different District Court
Judge. Id. at pp. 4 & 6. Plaintiff asserts that, “after seeing” the
way that case was handled, he is “not willing to gamble with
the others to see whether or not they will be the same way.”
Id. at p. 6.
Plaintiff has not, however, offered any objective facts to
suggest that any of the judges in the Northern District of New
York have any personal bias against him. Although Plaintiff
might disagree with this Court's recommendations in prior
actions, “that disapproval alone does not ‘constitute a valid
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basis for a bias or partiality motion.’ ” Sposato v. Carey, 2023
WL 10365030, at *2 (quoting Liteky v. U.S., 510 U.S. 540,
555 (1994)).
The undersigned, therefore, denies the request to recuse
himself from this matter. It is further recommended that
Plaintiff's Letter Motion requesting recusal of all Northern
District of New York judges, Dkt. No. 3, be denied. Having
determined that recusal is not warranted, the Court proceeds
with its review of the Complaint pursuant to L.R. 72.3.
B. Rules 8 and 10
Rule 8 of the Federal Rules of Civil Procedure provides that
a pleading must contain:
(1) a short and plain statement of the grounds for the court's
jurisdiction ...;
(2) a short and plain statement of the claim showing that
the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief
in the alternative or different types of relief.
FED. R. CIV. P. 8(a). The purpose of Rule 8 “is to give
fair notice of the claim being asserted so as to permit the
adverse party the opportunity to file a responsive answer [and]
prepare an adequate defense.” Hudson v. Artuz, 1998 WL
832708, at *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v.
Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995)).
Moreover, Rule 10 of the Federal Rules of Civil Procedure
provides, in part:
(b) Paragraphs; Separate Statements.
A party must state its claims or
defenses in numbered paragraphs,
each limited as far as practicable to
a single set of circumstances. A later
pleading may refer by number to
a paragraph in an earlier pleading.
If doing so would promote clarity,
each claim founded on a separate
transaction or occurrence – and each
defense other than a denial – must be
stated in a separate count or defense.
“The purpose of Rule 10 is to provide an easy mode of
identification for referring to a particular paragraph in a prior
pleading.” Flores v. Graphtex, 189 F.R.D. 54, 55 (N.D.N.Y.
1999) (internal quotation omitted). A complaint that fails to
comply with basic pleading requirements presents too heavy
a burden for defendants to craft a defense, “provides no
meaningful basis for the Court to assess the sufficiency of [the
plaintiff's] claims,” and may properly be dismissed. Gonzales
v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996).
Here, the Complaint fails to comply with the aforementioned
pleading requirements and thus does not provide the notice
to Defendants that Rules 8 and 10 require. To illustrate the
insufficiency of the Complaint, the Court provides but a few
examples.
First, the Complaint names as Defendants Rutnik, Magee,
and Bondi, as well as the Albany City School District Board
of Education, the United States of America, and the United
States Department of Justice. See Compl. at pp. 1 & 11-13.
Yet, the Complaint provides no factual support explaining
how any of these Defendants violated any of the named
statutes to support their inclusion in this action. As a result, the
Complaint does not provide these Defendants with fair notice
of the claims being asserted against them by Plaintiff so as
to permit them to assess the sufficiency of the Complaint and
give them the opportunity to prepare an adequate defense.
*4 Additionally, none of the eight “count[s]” contained in
the Complaint indicate which Defendants they are brought
against, and several merge together numerous different
alleged violations. See generally Compl. at pp. 39-52. For
example, “Count 1,” which is entitled “Refusal to give me AP
Calculus BS or to even participate in it,” id. at p. 39, contains
a slew of factual allegations and then summarily concludes
that “[a]ll of that violates Federal Rules of Civil Procedure
12(b)(1), CPLR 3211(a)(2), the 4th Amendment, the 5th
Amendment, the 8th Amendment, the 14th Amendment, and
the UN Declaration of Human Rights Article 26.” Id. at
¶ 187. Similarly, “Count 5,” which is entitled “Unreleased
documents,” id. at p. 46, asserts numerous factual allegations
and then states “[a]ll of that violates FERPA 99.10(b),
New York Education Law 3222(1), the 4th Amendment, 5th
Amendment, the 8th Amendment, and the 14th Amendment.”
Id. at ¶ 226.
The Complaint is also subject to dismissal on the basis that it
fails to state a claim. The Complaint brings suit pursuant to 42
U.S.C. § 1985 alleging that: “Albany City School District ...
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refus[ed] to give [Plaintiff] AP Calculus BC,” Compl. at ¶ 19;
Plaintiff “did not get [his] money back from CollegeBoard”
after he was removed from the SAT, id. at ¶ 22; and Albany
City School District, the Albany Police Department, John
Doe, and other law enforcement agencies “refused to send
[Plaintiff's] documents as [he] needed to go to School.” Id.
at ¶¶ 23-25. However, “Plaintiff fails to allege any factual
basis to support a meeting of the minds between [D]efendants
to achieve an unlawful end and, further, fails to allege that
[D]efendants acted with an invidious discriminatory animus
to deprive him of constitutionally protected rights,” both of
which are necessary to state a Section 1985 claim. Roberts v.
Fleury, 2024 WL 1242231, at *14 (N.D.N.Y. Mar. 22, 2024).
Additionally, the Complaint seeks to raise claims pursuant
to C.P.L.R. § 1411, Compl. at ¶¶ 19, 21, & 23, but that is
an affirmative defense pertaining to the amount of damages
recoverable in actions “for personal injury, injury to property,
or wrongful death.” C.P.L.R. § 1411.
Given its lack of clarity, the Complaint is clearly subject to
dismissal. “[A] court should not dismiss a complaint filed
by a pro se litigant without granting leave to amend at least
once ‘when a liberal reading of the complaint gives any
indication that a valid claim might be stated.’ ” Bruce v.
Tompkins Cty. Dep't of Soc. Servs. ex rel. Kephart, 2015 WL
151029, at *4 (N.D.N.Y. Jan. 7, 2015) (quoting Branum v.
Clark, 927 F.2d 698, 704-05 (2d Cir. 1991)). Accordingly, the
Court recommends that the Complaint be dismissed, but that
Plaintiff be afforded an opportunity to amend.
The Court advises Plaintiff that, should he be permitted to
amend his Complaint, any amended pleading he submits
must comply with Rules 8 and 10 of the Federal Rules
of Civil Procedure. Any such amended complaint, which
shall supersede and replace in its entirety the previous
Complaint filed by Plaintiff, must contain sequentially
numbered paragraphs containing only one act of misconduct
per paragraph. Thus, if Plaintiff claims that his civil and/
or constitutional rights were violated by more than one
defendant, or on more than one occasion, he should include
a corresponding number of paragraphs in his amended
complaint for each such allegation, with each paragraph
specifying: (i) the alleged act of misconduct; (ii) the date,
including the year, on which such misconduct occurred; (iii)
the names of each and every individual who participated in
such misconduct; (iv) where appropriate, the location where
the alleged misconduct occurred; and (v) the nexus between
such misconduct and Plaintiff's civil and/or constitutional
rights.
*5 Plaintiff is further cautioned that no portion of his
prior Complaint shall be incorporated into his amended
complaint by reference. Any amended complaint submitted
by Plaintiff must set forth all of the claims he intends to assert
against the Defendants and must demonstrate that a case or
controversy exists between the Plaintiff and the Defendants
which Plaintiff has a legal right to pursue and over which this
Court has jurisdiction. If Plaintiff is alleging that the named
defendant violated a law, he should specifically refer to such
law.
IV. CONCLUSION
For the reasons stated herein, it is hereby
ORDERED, that Plaintiff's request to recuse the undersigned
be DENIED; and it is further
RECOMMENDED, that the remaining parts of Plaintiff's
Letter Motion requesting recusal (Dkt. No. 3) be DENIED;
and it is further
RECOMMENDED, that Plaintiff's Complaint (Dkt. No. 1)
be DISMISSED without prejudice; and it is further
ORDERED, that the Clerk of the Court serve a copy of this
Report-Recommendation and Order upon the parties to this
action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen
(14) 4 days within which to file written objections to the
foregoing report. Such objections shall be filed with the Clerk
of the Court. FAILURE TO OBJECT TO THIS REPORT
WITHIN FOURTEEN (14) DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89
(2d Cir. 1993) (citing Small v. Sec'y of Health and Human
Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. §
636(b)(1); FED. R. CIV. P. 72 & 6(a).
4 If you are proceeding pro se and are served with
this Order by mail, three additional days will be
added to the fourteen-day period, meaning that you
have seventeen days from the date the order was
mailed to you to serve and file objections. FED. R.
CIV. P. 6(d). If the last day of that prescribed period
falls on a Saturday, Sunday, or legal holiday, then
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the deadline is extended until the end of the next
day that is not a Saturday, Sunday, or legal holiday.
FED. R. CIV. P. 6(a)(1)(C).
All Citations
Slip Copy, 2026 WL 1266259
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SALIM S. ISMAIL, Plaintiff, v. ALBANY CITY SCHOOL DISTRICT, et al., Def...
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History (2)
Direct History (2)
1. SALIM S. ISMAIL, Plaintiff, v. ALBANY CITY SCHOOL DISTRICT, et al., Defendants. Additional Party
Names: Albany City School District Board of Education, City of Albany, Lynne C. Rutnik, Pamela J. Bondi,
Robert G. Magee, UNITED STATES, United States Department of Justice
2026 WL 1266259 , N.D.N.Y. , Apr. 02, 2026
Report and Recommendation Adopted by
2. Ismail v. Albany City School District
2026 WL 1266275 , N.D.N.Y. , May 08, 2026
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SALIM S. ISMAIL, Plaintiff, v. ALBANY CITY SCHOOL DISTRICT, et al., Def...
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Filings
There are no Filings for this citation.
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Ismail v. Albany City School District, Slip Copy (2026)
2026 WL 1266275
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2026 WL 1266275
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Salim S ISMAIL, Plaintiff,
v.
ALBANY CITY SCHOOL DISTRICT et al., Defendants.
1:26-CV-297 (AJB/DJS)
|
Signed 05/08/2026
Attorneys and Law Firms
SALIM S ISMAIL, Plaintiff, Pro Se, 154 2nd Street, Albany,
NY 12210
ORDER ON REPORT & RECOMMENDATION
Anthony Brindisi, United States District Judge:
*1 On February 23, 2026, pro se plaintiff Salim S Ismail
(“plaintiff”) filed this 42 U.S.C. § 1983 action seeking, inter
alia, a declaration that the “FBI policy” of the Albany City
School District and Albany Police Department—that is, these
entities’ policy and practice of “crying wolf to the APD,
FBI, ATF&E, DEA, US Marshalls, CBP, HSI, ICE, Secret
Service, Federal Protective Service, DSS, IRS, CGIS, NCIS,
Army CID, and any other law enforcement agencies within
their ‘partnerships’ by painting, framing, and labelling people
that fight back against them and their treacherous ways as
terrorists”—is unconstitutional. See Dkt. No. 1 (errors in
original). Along with his complaint, plaintiff moved for leave
to proceed in forma pauperis (“IFP Application”), Dkt. No.
2, and filed a letter motion seeking “to recuse the Judges of
this Court from touching this case,” Dkt. No. 3.
On April 2, 2026, U.S. Magistrate Judge Daniel J. Stewart
conducted an initial review of the complaint and advised
by Report & Recommendation (“R&R”) that the pleading
be dismissed with leave to amend. Dkt. No. 9. There,
Judge Stewart explained that the precise nature of plaintiff's
allegations were unclear but, liberally construed, plaintiff
appeared to be complaining about events that occurred while
he was a high school student in the Albany City School
District. Id. In Judge Stewart's view, the pleading's lack of
clarity—and in particular its failure to comply with Rules 8
and 10 of the Federal Rules of Civil Procedure—warranted
dismissal but, because plaintiff was pro se, the dismissal
should be with leave to amend. Id. Judge Stewart further
recommended that plaintiff's letter motion seeking the blanket
recusal of all of the judges of this judicial district be denied.
Id.
Plaintiff has lodged objections. Dkt. No. 12. There, plaintiff
prefaces his objections by stating:
You can be mad. You can be mad. You
can be MAD; and you may not like it,
but I stand by my complaint. I do. I
really really REALLY do. I stand 10
toes down on every single last one of
the things I wrote and the things that I
said.
Dkt. No. 12 at 1 (emphases and errors in original). Plaintiff
goes on to complain that Judge Stewart's R&R actually
demonstrates why his motion for recusal is meritorious. See
id. Plaintiff then opines that:
Unfortunately, this is quickly starting to turn into another
one of those disgusting situations that I had with [U.S.
District Judge] Suddaby in my other case where I was
turned a deaf ear to, not given an explanation, terrorized
with the power of the gavel, and stripped of my 5th
Amendment right to due process.
....
So I'm asking you to reconsider it again and get the hell of
my case.
Dkt. No. 12 at 2 (errors in original). In conclusion, plaintiff
states:
While I do plan to file an amended complaint, it is for a very
different reason than what you articulated and not going to
be done so soon.
Y'all don't have to like it. I don't care. I don't care. I do not
care. FUCK OFF MY CASE. But do NOT touch my case
under any circumstances whatsoever. Especially because
this Court is a death trap for certain litigants. That's not
what a Court is supposed to be, but unfortunately that's
what this one is. It is not funny. That's been proven to be
true time, time, time, time, and then AGAIN: Not only
by Ecf 91, 84, 84, 75, 63, 52, 48, 46, and 44 of my
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Ismail v. Albany City School District, Slip Copy (2026)
2026 WL 1266275
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other case(1:24-cv-983) (where it is just fucking damning
and abhorrent) but also by this report from you; and by
everything that I said in my motion for recusal.
*2 While it would be great if my case could actually be
treated for and regarded for its merits, that is a non existent
thing in this district for pro se litigants, in totality, and for
people who are not white.
It's time to clean house and wrap up this puppet theatre
façade that you call a Court. Be mad all you want.
Dkt. No. 12 at 7 (emphases and errors in original).
Upon de novo review, Judge Stewart's R&R is accepted and
will be adopted. See 28 U.S.C. § 636(b)(1)(C). Although
the Court is skeptical that permitting amendment will be
productive here, the Court agrees with Judge Stewart's
approach in light of our general practice when it comes to pro
se litigants, that is, to identify the deficiencies in the initial
pleading and offer an opportunity to correct them through
amendment.
That said, plaintiff's motion for blanket recusal of all the
judges in this judicial district was and is plainly meritless,
and his expletive-laden objection (filed at Dkt. No. 12) does
not provide a basis on which to conclude otherwise. Further,
although plaintiff complains that he was treated unfairly in a
prior civil action that was filed in this judicial district, a review
of the filings and docket report in that action actually shows
that plaintiff's abusive litigation conduct eventually earned
him a bar order in that case. See 1:24-CV-982 (GTS/PJE)
at Dkt. No. 91. Plaintiff is cautioned that abusive litigation
tactics will not be tolerated in this action, either. Indeed, the
IFP statute requires a court to dismiss a case “at any time”
if it determines that the action is (i) frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief. 28 U.S.C. § 1915(e)(2)(B).
Therefore, it is
ORDERED that
1. The Report & Recommendation (Dkt. No. 9) is
ACCEPTED;
2. Plaintiff's motion for leave to proceed in forma pauperis
(Dkt. No. 10) is DENIED as moot because he has already been
granted IFP status (at Dkt. No. 8);
3. Plaintiff shall have THIRTY DAYS in which to file an
amended complaint that conforms with the instructions set
forth in Judge Stewart's R&R;
4. If plaintiff timely files an amended complaint, the Clerk is
directed to REFER the file to Judge Stewart for further action
as appropriate; and
5. If plaintiff does not timely file an amended complaint, the
Clerk is directed to enter a judgment dismissing this action
and close the file without further Order of the Court.
The Clerk of the Court is directed to terminate the pending
motions and set a deadline accordingly.
IT IS SO ORDERED.
All Citations
Slip Copy, 2026 WL 1266275
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 35 of 175

Ismail v. Albany City School District
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (2)
1. SALIM S. ISMAIL, Plaintiff, v. ALBANY CITY SCHOOL DISTRICT, et al., Defendants. Additional Party Names:
Albany City School District Board of Education, City of Albany, Lynne C. Rutnik, Pamela J. Bondi, Robert G.
Magee, UNITED STATES, United States Department of Justice
2026 WL 1266259 , N.D.N.Y. , Apr. 02, 2026
Report and Recommendation Adopted by
2. Ismail v. Albany City School District
2026 WL 1266275 , N.D.N.Y. , May 08, 2026
Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 36 of 175

Ismail v. Albany City School District
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings
There are no Filings for this citation.
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Urena v. City of New York, Not Reported in Fed. Supp. (2024)
2024 WL 4149182
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2024 WL 4149182
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Amaury URENA, Plaintiff,
v.
The CITY OF NEW YORK; Captain Terrance Shaw; Co
Ingram Laguerre; and Co Abraham Ortiz, Defendants.
No. 22-CV-4679 (RA)
|
Signed September 10, 2024
Attorneys and Law Firms
Amaury Urena, East Elmhurst, NY, Pro Se.
Bailey Forcier, New York City Law Department, New York,
NY, for Defendant Abraham Ortiz.
OPINION & ORDER
RONNIE ABRAMS, United States District Judge:
*1 Plaintiff Amaury Urena brings this action against Captain
Terrance Shaw, Correction Officers Ingram Laguerre and
Abraham Ortiz, and the City of New York (“Defendants”).
Urena, a pre-trial detainee on Rikers Island, alleges that
Defendant Shaw used excessive force against him during a
strip search, in violation of 42 U.S.C. § 1983; that Defendants
Laguerre and Ortiz acted with deliberate indifference to
unlawful conditions of confinement, also in violation of
42 U.S.C. § 1983; and that all Defendants violated his
rights under the New York City Administrative Code. Now
before the Court are the parties' cross-motions for summary
judgment. For the reasons that follow, Plaintiff's motion is
denied in full, while Defendants' motion is granted in part
and denied in part. In particular, Defendants' motion is denied
with respect to Urena's excessive force claim under 42 U.S.C.
§ 1983 against Shaw, but granted as to Urena's remaining
claims.
BACKGROUND
The following facts are drawn from the pleadings, the parties'
Rule 56.1 Statements, and their opposition papers. 1 The facts
cited are undisputed unless otherwise noted. On April 21,
2022, Urena was housed at the North Infirmary Command on
Rikers Island as a pre-trial detainee. Dkt. No. 44 (“Def. 56.1
Statement”) ¶ 1. That morning, he started a fire in his cell
because, he asserts, he was “feeling suicidal” and was in a
“deep depression” after officers gave his “bag of commissary
away.” Dkt. No. 48 (“Pl. 56.1 Statement”) ¶ 2; see Dkt. No.
43 (“Forcier Decl.”), Ex. A (“Pl. Tr.”) at 15. 2 Later that
day, Shaw, Laguerre, and Ortiz escorted him to a single-
person intake cell “to be searched for contraband before being
transferred to a different facility.” Def. 56.1 Statement ¶¶
3–4. The intake cell was entirely enclosed by a chain-link
structure. See DOC Genetec Video Footage (“DOC Footage”)
at 18:10:58–18:11:03. Initiating a strip search, Defendants
instructed Urena to remove his clothing. Def. 56.1 Statement
¶¶ 3–4. Although he did remove his clothes, Urena “refused
to comply with the search by not showing both of his hands
at the same time and moving to the back of the search pen.”
Id. ¶ 5; see DOC Footage at 18:00:14–18:09:25. Defendants
then left Urena alone in his intake cell for approximately ten
minutes, although Shaw returned periodically in an attempt
to gain Urena's compliance. Def. 56.1 Statement ¶¶ 6–7.
Urena asserts that, during this time, Shaw “threatened the
deployment of chemical agents.” Pl. 56.1 Statement ¶ 3. 3
Eventually, Urena complied with the strip search and the
officers returned his clothes. Def. 56.1 Statement ¶¶ 9–10.
1 In light of the “special solicitude” afforded to
pro se litigants “when confronted with motions
for summary judgment,” Graham v. Lewinski,
848 F.2d 342, 344 (2d Cir. 1988), the Court has
“endeavored to discern from the record if there is
any evidentiary support for the assertions contained
in the [c]omplaint ... and to determine if there
are any other material issues of fact based on
the evidence in the record.” Cherry v. Byram
Hills Cent. Sch. Dist., No. 11-cv-3872, 2013 WL
2922483, at *2 (S.D.N.Y. June 14, 2013); see
Geldzahler v. N.Y. Med. Coll., 746 F. Supp. 2d
618, 620 n.1 (S.D.N.Y. 2010). Defendants argue
that some of Urena's statements, without citation
to admissible evidence, violate Local Rule 56 and
should be disregarded entirely. See Dkt. No. 50
(“Def. 56.1 Response”) ¶¶ 1–2 & n.1, ¶ 8. The
Court, however, has “in its discretion opt[ed] to
conduct an assiduous review of the record even
where one of the parties” failed to comply with
local rules. Holtz v. Rockefeller & Co., 258 F.3d
62, 73 (2d Cir. 2001), abrogated in part on other
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grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S.
167 (2009).
2 Defendants dispute Urena's assertion that officers
gave his commissary items away. Def. 56.1
Response ¶ 2.
3 Defendants dispute that Shaw “threatened the
deployment of chemical agents,” Def. 56.1
Response ¶ 3, although it appears from the video
footage that Shaw was holding a spray can in his
right hand during most, if not all, of Urena's strip
search, see DOC Footage 18:09:27–18:11:03.
*2 As Urena dressed, however, he began to argue with Shaw.
Id. ¶ 11; Pl. Tr. at 27. During the argument, Urena used vulgar,
antagonistic language, which he alleges “ticked [Shaw] off.”
Pl. Tr. at 27. Urena also asserts that Shaw “argu[ed] back and
forth” with him, and taunted him by saying,“[w]hat you gonna
do about it? I do what I want.” Id. He further maintains that
Shaw “read[ied] himself for the premeditated deployment”
of chemical spray. Pl. 56.1 Statement ¶ 7. Urena then spit at
Shaw, who was standing several feet away, outside of Urena's
locked cell. See DOC Footage at 18:09:27–18:11:12. 4 In
response, Shaw immediately deployed chemical spray at
Urena's face. Id.; see Def. 56.1 Statement ¶¶ 12–13. 5 Urena
retreated to the corner of the intake cell, and Shaw briefly
adjusted the direction of the chemical spray toward Urena
before stopping. See DOC Footage at 18:11:00–18:11:03.
The chemical spray deployment lasted approximately two
seconds. See id. As a result, Urena says his “whole body
felt like it was on fire,” he “couldn't breathe” because his
“lungs [were] closed in,” and his “eyes felt blurry.” Pl.
Tr. at 32. Urena stumbled to the floor and remained there
for approximately ten minutes before officers, dressed in
decontamination gear, escorted him out of his cell. See DOC
Footage at 18:11:24–18:22:35. He was then decontaminated
and treated with pain medication. His pain subsided after
twenty-four hours. Pl. Tr. at 32. He was later transferred to a
different correctional facility. Id. at 34.
4 Although Urena denies doing so, it is clear
from the video footage that that he did spit
at Shaw. Defendants claim that Urena's saliva
“ma[de] contact with [Shaw's] face,” and that Shaw
subsequently left the area to wash his face. Forcier
Decl., Ex. C (“DOC Use of Force Report”) at
D000021–22, Ex. D (“DOC Use of Force Witness
Report”) at D000023. The holes in the chain-link
intake cell appear large enough for saliva to exit the
cell. See DOC Footage at 18:10:58–18:11:03.
5 Urena alleges that Shaw deployed a “riot-sized
can of chemical agent” that “is reserved only
for situations where officers need to gain the
compliance of an entire group” rather than an
individual “already confined in a cell.” Am. Compl.
¶ 32; see Dkt. No. 49 (“Pl. Br.”) at 4. He defines
this spray as “riot spray” and “chemical mace”
in the amended complaint, and as “MK9 (bear
repellent/pepper spray)” in his Memorandum of
Law. See Am. Compl. ¶¶ 36, 40; Pl. Br. at
1. Defendants describe the chemical agent as
“chemical spray” without specifying what type
or whether its intended use is for groups or
individuals. See Def. 56.1 Statement ¶ 13; Def. 56.1
Response ¶ 7.
Urena initiated this action, with the assistance of counsel,
on June 3, 2022, and filed an amended complaint—the now
operative complaint—on February 1, 2023. On September 8,
2023, Defendants filed a motion for summary judgment. Dkt.
No. 42. On September 11, 2023, Urena, proceeding pro se,
filed a cross-motion for summary judgment. Dkt. No. 49.
LEGAL STANDARD
Summary judgment is appropriate when “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). A dispute
is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” WWBITV, Inc. v.
Vill. of Rouses Point, 589 F.3d 46, 49 (2d Cir. 2009). 6 A fact
is material if it “might affect the outcome of the suit under the
governing law,” and “[f]actual disputes that are irrelevant or
unnecessary [under the governing law] will not be counted.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
determining whether there is a genuine issue of material fact,
the Court must view all facts in the light most favorable to the
non-moving party. Holcomb v. Iona Coll., 521 F.3d 130, 132
(2d Cir. 2008). But where “opposing parties tell two different
stories, one of which is blatantly contradicted by the record,
so that no reasonable jury could believe it, a court should
not adopt that version of the facts for purposes of ruling on
a motion for summary judgment.” Scott v. Harris, 550 U.S.
372, 380 (2007).
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6 Unless otherwise indicated, case quotations
omit all internal citations, quotations, footnotes,
omissions, and alterations.
While “[t]he movant has the burden of showing that there
is no genuine issue of fact,” the non-moving party “is not
thereby relieved of [her] own burden of producing in turn
evidence that would support a jury verdict.” Anderson, 477
U.S. at 256. In other words, the non-moving party “must set
forth specific facts showing that there is a genuine issue for
trial” to defeat summary judgment. Id.; see also Crawford-El
v. Britton, 523 U.S. 574, 600 (1998) (“[I]f the [defendant] has
made a properly submitted motion [for summary judgment],
the plaintiff ... must identify affirmative evidence from which
a jury could find that the plaintiff has carried his or her
burden.”).
*3 Lastly, it is “well established that a court is ordinarily
obligated to afford a special solicitude to pro se litigants,
particularly where motions for summary judgment are
concerned.” Harris v. Miller, 818 F.3d 49, 57 (2d Cir. 2016).
Thus, “[c]ourts read the pleadings, briefs, and opposition
papers of pro se litigants ‘liberally and interpret them to
raise the strongest arguments that they suggest.’ ” Rivera v.
Goulart, No. 15-cv-2197, 2018 WL 4609106, at *2 (S.D.N.Y.
Sept. 25, 2018) (quoting McPherson v. Coombe, 174 F.3d 276,
280 (2d Cir. 1999)).
DISCUSSION
I. Excessive Force Claim
Urena first alleges that Shaw unlawfully used excessive force
when he sprayed him with a chemical agent, in violation of the
Fourteenth Amendment. Dkt. No. 19 (“Am. Compl.”) ¶¶ 39–
42. 7 Defendants respond that any use of force against Urena
was “objectively reasonable and justified,” and that, even,
assuming arguendo, that Shaw violated Urena's constitutional
rights, he is nevertheless entitled to qualified immunity. Dkt.
No. 45 (“Def. Br.”) at 4–7, 9–11. For the reasons that follow,
the Court denies both parties' summary judgment motions as
to this claim because a rational jury could find either that
Shaw's actions were objectively reasonable or unreasonable,
and because material, factual disputes exist that also preclude
summary judgment on qualified immunity grounds at this
time.
7 Urena brings his claim under 42 U.S.C. § 1983,
which imposes civil liability on individuals, acting
under color of state law, who deprive a plaintiff
of any federal rights. See Gomez v. Toledo, 446
U.S. 635, 640 (1980). “A pretrial detainee who
is subjected to excessive force may bring a claim
under § 1983.” Quinones v. Rollison, No. 18-
cv-1170, 2020 WL 6420181, at *3 (S.D.N.Y. Nov.
1, 2020).
A. Objective Reasonableness of Force
The right of pretrial detainees to be free from excessive force
is protected by the Due Process Clause of the Fourteenth
Amendment. United States v. Walsh, 194 F.3d 37, 47 (2d Cir.
1999); Kingsley v. Hendrickson, 576 U.S. 389, 398 (2015). 8
To prevail on an excessive force claim, a pretrial detainee
“must show only that the force purposely or knowingly used
against him was objectively unreasonable.” Kingsley, 576
U.S. at 396–97. When evaluating objective reasonableness,
courts must consider the “facts and circumstances of each
particular case.” Graham, 490 U.S. at 396. The Supreme
Court has also provided several “potentially relevant” factors
that “may bear on the reasonableness or unreasonableness of
the force used,” including: whether the amount of force was
proportionate to the need for the use of force; the extent of
the plaintiff's injury; whether an officer made efforts to limit
the amount of force; the “severity of the security problem
at issue”; whether the plaintiff was “actively resisting”; and
“the threat reasonably perceived by the officer.” Kingsley, 576
U.S. at 397.
8 While many excessive force claims invoke
the Fourth Amendment's prohibition against
unreasonable seizures or the Eighth Amendment's
ban on cruel and unusual punishments, Graham
v. Connor, 490 U.S. 386, 393–94 (1989), Urena's
claim is governed by the Fourteenth Amendment.
As a pretrial detainee, Urena is within the “legal
twilight zone” between arrest and conviction.
Wilson v. Spain, 209 F.3d 713, 715 (8th Cir. 2000).
The Fourteenth Amendment establishes his right
against excessive force because “[t]he touchstone
of due process” is the “protection of the individual
against arbitrary action of government.” Edrei v.
Maguire, 892 F.3d 525, 533 (2d Cir. 2018) (quoting
Wolff v. McDonnell, 418 U.S. 539, 558 (1974)).
Fourth and Eighth Amendment excessive force
cases are nonetheless instructive when evaluating
the scope of a pretrial detainee's rights. Hart v.
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Suffolk Cnty., No. 17-cv-5067, 2023 WL 5720075,
at *14 n.15 (E.D.N.Y. Sept. 5, 2023).
*4 Courts must make an objective reasonableness
determination from the perspective of a reasonable officer
on the scene without hindsight bias, and, in the context of
a correctional facility, they must consider the “legitimate
interests” officers have in managing a facility, which
include “preserv[ing] internal order and discipline” and
“maintain[ing] institutional security.” Id.; see Graham, 490
U.S. at 396–97 (“The calculus of reasonableness must
embody allowance for the fact that ... officers are often forced
to make split-second judgments—in circumstances that are
tense, uncertain, and rapidly evolving—about the amount
of force that is necessary in a particular situation.”). “Not
every push or shove, even if it may later seem unnecessary
in the peace of a judge's chambers, violates a[n inmate's]
constitutional rights.” Johnson v. Glick, 481 F.2d 1028, 1033
(2d Cir. 1973). Nonetheless, when exercising any force,
an officer must still show that the force was objectively
“necessary and proportionate to the circumstances.” Edrei,
892 F.3d at 540.
The use of pepper spray “constitutes a significant degree of
force.” Tracy v. Freshwater, 623 F.3d 90, 98 (2d Cir. 2010).
Accordingly, the Second Circuit has cautioned that pepper
spray “should not be used lightly or gratuitously against
an arrestee who is complying with police commands or
otherwise poses no immediate threat to the arresting officer.”
Id. Given the “variety of incapacitating and painful effects”
that pepper spray produces, id., courts must carefully consider
whether a detainee is “actively resisting” or poses a “threat
to the safety of officers or others” when the officer deploys
such force, Jones v. Treubig, 963 F.3d 214, 225 (2d Cir. 2020).
When considering an excessive force claim on summary
judgment, a court's role “is to determine whether a jury,
instructed as to the relevant factors, could reasonably find that
the force used was excessive.” Brown v. City of New York, 798
F.3d 94, 103 (2d Cir. 2015).
Here, Defendants argue that Shaw's use of the spray was
objectively reasonable, and therefore not excessive, under the
circumstances. See Def. Br. at 5. They contend that Urena
“provoked the incident” by spitting at Shaw, that Shaw only
used a two-second burst of spray in response, that the force
was necessary because Shaw “repeatedly refused to comply
with orders, yelled, and acted aggressively,” and that Urena's
resulting injuries were mild. Id. at 5–7. Defendants also
aver that Urena's “surprise attack” provoked a “split second
decision” by Shaw, which itself “was a reasonable reaction ...
in order to restore and maintain discipline.” Id. at 7. Thus,
they argue, Urena's excessive force claim fails as a matter of
law. Id.
As Defendants rightly note, it was Urena who provoked
Shaw's use of the spray when he intentionally spat in Shaw's
direction. Although Urena appears to contest Defendants'
characterization of his abrupt spitting, see Pl. Br. at 6, the
video evidence clearly corroborates Defendants' depiction of
these events, see DOC Footage at 18:10:58–18:11:03. See
also Scott v. Harris, 550 U.S. at 380. Under New York
law, the act of spitting in someone's face may constitute
civil assault and civil battery. D.K. by L.K. v. Teams, 260 F.
Supp. 3d 334, 364 (S.D.N.Y. 2017); see also United States
v. Delis, 558 F.3d 177, 183–84 (2d Cir. 2009) (holding
that “offensive touching,” which can include “spitting on
another,” constitutes simple assault, as criminalized by 18
U.S.C. § 113(a)(5)). The act of spitting may also reasonably
require the use of some force “to control [a] plaintiff from
committing further [such] acts.” Bonet v. Shaw, 669 F. Supp.
2d 300, 304 (W.D.N.Y. 2009). 9 Thus, the use of some
force may, in certain circumstances, be consistent with the
legitimate law enforcement objectives of preventing further
spitting and “preserv[ing] internal order and discipline.” Bell
v. Wolfish, 441 U.S. 520, 547 (1979). Defendants make this
argument here, maintaining that one burst of the spray was a
proportionate attempt “to stop the assault, restore order, and
maintain discipline.” See Def. Br. at 5. 10
9 For example, some courts have held that if a
detainee spits at an officer, the officer may use
a “spit mask” or “spit veil” to prevent repeated
violations. See, e.g., Baltas v. Rivera, No, 19-
cv-1043, 2020 WL 6199821, at *16 (D. Conn. Oct.
22, 2020) (also holding that “there are no reported
cases in this circuit finding a constitutional right
preventing” an officer's use of a spit veil).
10 Defendants cite several district court decisions for
the proposition that “a correction officer's use of
pepper spray on an inmate who refuses to comply
with orders in [an effort] to maintain or restore
discipline and stop an assault is reasonable.” Def.
Br. at 6. But each of those cases is distinguishable
from this one in terms of the danger presented to
the officer. In Anderson v. Darby, for example, a
confined plaintiff “proceeded to grab [an officer's]
right arm and pulled [him] into the feeding slot,”
ignoring “loud verbal commands” to release the
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officer before the officer deployed a chemical
spray. No. 15-cv-0635, 2017 WL 933085, at *2
(E.D.N.Y. Feb. 13, 2017). Similarly, in Frost v.
Davis, a plaintiff “abruptly” stood up and moved
toward officers as they were exiting his cell and
“pushe[d] into” an officer's shield before being
tackled and sprayed with a chemical agent. No.
17-cv-8418, 2019 WL 4512620, at *3 (S.D.N.Y.
Sept. 18, 2019); see also Vazquez v. Spear,
No. 12-cv-6883, 2014 WL 3887880, at *1, 4–
5 (S.D.N.Y. Aug. 5, 2014) (noting the plaintiff's
active, physical resistance to being handcuffed and
the officer's subsequent use of de minimis force to
place the plaintiff in handcuffs). Defendants have
provided no case more akin to this one—where
an officer used chemical spray after an inmate
spat at the officer from inside a locked cell. See
Lewis v. Clarkstown Police Dep't, No. 11-cv-2487,
2014 WL 1364934, at *5 (S.D.N.Y. Mar. 31,
2014) (rejecting the argument that chemical spray
“is always permitted simply because a detainee,
confined to his cell, is noncompliant”).
*5 A reasonable jury might agree, but, weighing the
following countervailing factors, it also might not.
First, a jury might be swayed by the fact that Urena was locked
by himself in an enclosed, single-person intake cell when he
spat at Shaw, who stood several feet away. See DOC Footage
at 18:10:58–18:11:03. Unlike cases where chemical spray is
deployed to break up fights or the environment otherwise
presents a serious risk to officer safety, see, e.g., Quinones,
2020 WL 6420181 at *2, Defendants here faced no similar
threat, see Soto v. Bautista, 2023 WL 2624785, at *4 (5th
Cir. 2023) (“[W]e are unconvinced that spitting a single time
poses more than a de minimis risk to an officer's safety.”).
A jury could thus find that Urena, spitting from within a
locked enclosure, did not pose a serious “threat to the safety
of officers or others.” Jones, 963 F.3d at 225; see also Tracy,
623 F.3d at 98 (“conclud[ing] that a reasonable juror could
find that the use of pepper spray deployed mere inches away
from the face of a defendant already in handcuffs and offering
no further active resistance constituted an unreasonable use
of force” and denying summary judgment).
Second, Shaw deployed the spray immediately, without
any attempt to deescalate the situation or use any other
strategy to address Urena's actions. Recognizing that pepper
spray “should not be used lightly or gratuitously” against
individuals who pose “no immediate threat,” Tracy, 623 F.3d
at 98, Shaw could have verbally warned Urena that any
successive spitting would be met with chemical spray. Or he
could have taken a few steps back and reprimanded Urena
before resorting to the use of the spray. Although Shaw
had a legitimate interest in preventing further spitting and
maintaining order and discipline, a reasonable jury could
find that—by immediately deploying the “incapacitating and
painful” chemical spray, Tracy, 623 F.3d at 98—Shaw failed
to reasonably “temper or ... limit the amount of force” used
against Urena, Kingsley, 576 U.S. at 397. See also Brown,
798 F.3d at 102–03 (noting “the availability of a much less
aggressive technique” for obtaining compliance); Soto, 2023
WL 2624785, at *4 (finding that force against a plaintiff
who spat once at an officer reflected “an impulsive, violent
response to perceived disrespect” rather than an objectively
reasonable response).
Third, despite Urena's relatively short-lived injuries, even a
single burst of chemical spray can constitute more than a
de minimis use of force. See, e.g., Javier v. Russo, No. 21-
cv-7097, 2023 WL 5532468, at *2, *7 (S.D.N.Y. Aug. 28,
2023) (rejecting defendant's argument that pepper spraying a
plaintiff locked in his cell was a de minimis use of force);
Jones v. Wagner, No. 20-cv-475, 2022 WL 1525134, at *2,
*6 (D. Conn. May 13, 2022) (denying summary judgment
where a defendant “deployed a single burst of chemical agent”
in a plaintiff's face); Mobley v. Mallow, No. cv-18-3515,
2019 WL 6217881, at *6 (D. Md. Nov. 21, 2019) (“Use
of a chemical agent against an inmate confined in a ‘strip
cage’ is a nontrivial use of force.”); Tracey, 623 F.3d at 98.
Here, Shaw deployed the chemical spray into Urena's face
from several feet away, and Urena's reaction—covering his
eyes, retreating to the corner of his cell, and stumbling to
the floor—evinces a painful experience. See DOC Footage at
18:10:58–18:12:13. Further, Urena remained on the floor for
approximately ten minutes before officers removed him from
the cell to be decontaminated. Id. at 18:11:24–18:22:35; Pl.
Tr. at 34. A reasonable jury could therefore find that Shaw
used more than de minimis force against Urena. See Feliciano
v. Thomann, 747 F. App'x 885, 887 (2d Cir. 2019); Edrei, 892
F.3d at 540 (noting the “longstanding test” for excessive force
claims that “force must be necessary and proportionate to the
circumstances”).
*6 Ultimately, the “assessment of a jury is needed,”
Brown, 798 F.3d at 103, as to whether Shaw's use of force
was proportionate to Urena's provocation. At the summary
judgment stage, even when “most of the facts concerning the
application of force are undisputed,” the factual determination
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of excessiveness is left to a jury, “whose collective common
sense, informed by their life experiences, may well exceed”
that of this Court. Brown, 798 F.3d at 103. In this case, a
rational jury could conclude that Shaw's decision to deploy
chemical spray was objectively reasonable or unreasonable
under the circumstances.
B. Qualified Immunity
Shaw next argues that he is entitled to qualified immunity,
thereby shielding him from liability at this stage in the
litigation. The Court disagrees. The doctrine of qualified
immunity serves to protect government officials from civil
liability for actions taken under color of law. Pearson v.
Callahan, 555 U.S. 223, 231 (2009). In assessing whether
officials are entitled to qualified immunity, courts conduct
a two-step analysis, considering “(1) whether the facts
presented make out a violation of a constitutional right; and
(2) whether the right at issue was clearly established when
it was allegedly violated.” Torcivia v. Suffolk Cnty., 17 F.4th
342, 367 (2d Cir. 2021). While the first inquiry necessary
overlaps with whether there was a violation of Urena's
Fourteenth Amendment rights, the second inquiry also “tends
to converge with the first [inquiry] in excessive force cases,
with the question ultimately being whether, in the particular
circumstances faced by the officer, a reasonable officer would
believe that the force employed was lawful.” Weather v. City
of Mount Vernon, 474 F. App'x 821, 824 (2d Cir. 2012);
see Saucier v. Katz, 533 U.S. 194, 210 (2001) (Ginsburg,
J., concurring) (acknowledging that “paradigmatically, the
determination of [officer] misconduct in excessive force cases
and the availability of qualified immunity both hinge on the
same question”). 11
11 “Even where this convergence occurs, however,
courts should” still address the “clearly
established” prong. Cowan ex rel. Est. of Cooper
v. Breen, 352 F.3d 756, 764–65 n.7 (2d Cir. 2003)
(noting that “genuine issues of material fact” may
preclude summary judgment on “both the question
[of] whether [a defendant] used excessive force and
the question [of] whether he reasonably believed
that his use of force was lawful”); see Pearson, 555
U.S. at 236.
As discussed above, there is an open factual question as to
whether Shaw violated Urena's constitutional rights. The first
prong of the qualified immunity test thus does not foreclose
Urena's excessive force claim. The Court therefore turns to
whether Shaw met his burden of establishing that the right to
be free of the force at issue here was not clearly established.
Lewis, 2014 WL 1364934, at *9; see Pearson, 555 U.S.
at 227 (holding that, where a government official violates
a plaintiff's constitutional rights, the doctrine of qualified
immunity nonetheless shields that official from liability if “it
was not clearly established at the time ... that [the officer's]
conduct was unconstitutional”).
“A right is clearly established if the contours of the right are
sufficiently clear that a reasonable official would understand
that what he is doing violates that right.” McKinney v. City of
Middletown, 49 F.4th 730, 738 (2d Cir. 2022). “This requires
that controlling authority or a robust consensus of cases of
persuasive authority have recognized the right at issue.” Id.
at 738–39. In excessive force cases, the ultimate question
becomes “whether, in the particular circumstances faced by
the officer, a reasonable officer would believe that the force
employed was lawful.” Weather, 474 F. App'x at 824.
*7 As relevant here, the Second Circuit has held that it is
“well established” that “the use of entirely gratuitous force is
unreasonable and therefore excessive.” Tracy, 623 F.3d at 99
n.5; see Jones, 963 F.3d at 226. It is also “beyond doubt that
any reasonable ... officer would know that the use of ... pepper
spray[ ] constitutes significant force,” Jones, 963 F.3d at 226.
In light of such precedent, “no reasonable officer could ...
believe[ ] that he [is] entitled to use pepper spray gratuitously
against a restrained and unresisting arrestee.” Tracy, 623 F.3d
at 99 n.5; see also Taylor v. Nieves, No. 17-cv-7360, 2020 WL
7028907, at *3 (S.D.N.Y. Nov. 30, 2020) (“Second Circuit
precedent clearly disallows the gratuitous use of pepper spray
against restrained individuals.”).
The Supreme Court, moreover, has reiterated that “the Due
Process Clause protects a pretrial detainee from the use of
excessive force that amounts to punishment,” which can
include force that is not “rationally related to a legitimate
nonpunitive governmental purpose” or that “appear[s]
excessive in relation to that purpose.” Kingsley, 576 U.S. at
398; see Graham, 490 U.S. at 395 n.10 (“It is clear ... that the
Due Process Clause protects a pretrial detainee from the use
of excessive force that amounts to punishment.”). Courts in
this Circuit regularly find unconstitutional the intentional use
of force that serves no legitimate, nonpunitive purpose. See
Moran v. Tesei, No. 19-cv-722, 2023 WL 3570670, at *12 (D.
Conn. May 19, 2023) (collecting cases); Sanders v. Garden
City Police Dep't, No. 09-cv-2393, 2015 WL 5518589, at *7
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n.2 (E.D.N.Y. Sept. 16, 2015) (noting that an officer's use of
force would be excessive if the conduct “serv[ed] no purpose
other than to inflict discomfort and pain”).
The question of “whether a reasonable official would
reasonably believe his conduct did not violate a clearly
established right[ ] is a mixed question of law and fact.”
Kerman v. City of New York, 374 F.3d 93, 109 (2d Cir.
2004). Thus, although a qualified immunity defense “can be
disposed of by summary judgment where possible,” summary
judgment is not appropriate “when there are material factual
disputes.” Stephenson v. Doe, 332 F.3d 68, 76–77 (2d Cir.
2003). Indeed, the Second Circuit has cautioned that a jury
must weigh in where excessive force and qualified immunity
issues “overlap” due to material facts in dispute. Id. at 81.
When this occurs, “the jury should decide these issues on
special interrogatories.” Warren v. Dwyer, 906 F.2d 70, 76 (2d
Cir. 1990); see Zellner v. Summerlin, 494 F.3d 344, 368 (2d
Cir. 2007); Oliveira v. Mayer, 23 F.3d 642, 650 (2d Cir. 1994).
“[A] judicial determination as to what a reasonably competent
officer would conclude in a particular situation requires
an objective factual determination as to the mindset of
reasonably competent officers.” Brown v. City of New York,
No. 13-cv-1018, 2016 WL 1611502, at *6 (S.D.N.Y. Apr.
20, 2016), aff'd, 862 F.3d 182 (2d Cir. 2017). As the
Circuit has explained, “it is the jury's province to resolve
the reasonableness of an officer's perception of the facts
that confronted him,” and “those same facts ... can also
sometimes be critical in deciding the [clearly-established step
of a court's] qualified immunity analysis.” Jones, 963 F.3d at
231.
As noted earlier, although video footage captures the incident
in question, there remain disputed factual questions—such
as the degree of risk that Urena posed to Shaw or others
and whether Shaw deployed the spray for a legitimate
or punitive purpose—that are material to whether it was
objectively reasonable for Shaw to believe his use of force
was lawful under the circumstances. Thus, the “assessment
of a jury is needed in this case,” Brown, 798 F.3d at 103,
to determine, among other things, whether Shaw's force was
“entirely gratuitous,” Ross v. Willis, No. 16-cv-6704, 2021
WL 3500163, at *14 (S.D.N.Y. Aug. 9, 2021), not “rationally
related to a legitimate nonpunitive governmental purpose,”
Kingsley, 576 U.S. at 398, or—if rationally related to a
legitimate nonpunitive governmental purpose—“excessive in
relation to that purpose,” id.
*8 Other courts in this district have concluded as much in
similar circumstances. For example, in Wiggan v. NYC Dep't
of Corrs., which concerned an officer's use of pepper spray
on an inmate who had disobeyed orders but was confined
in a cell, the court denied summary judgment because a
factfinder might infer that the officer's use of the spray
was “in retribution for plaintiff's refusal to obey his order
and the disrespect he showed” rather than “in a good-faith
effort to maintain or restore discipline.” No. 12-cv-1405,
at *1, *27 (S.D.N.Y. Aug. 21, 2014) (ECF No. 46), report
and recommendation adopted, 2014 WL 4631456 (S.D.N.Y.
Sept. 16, 2014). In Ross v. Willis, moreover, the court held
that a defendant officer who pepper sprayed an inmate was
not entitled to summary judgment on the basis of qualified
immunity because there was a factual question as to whether
the inmate, who had been confined to his cell, physically
resisted attempts to be handcuffed. No. 16-cv-6704, 2021 WL
3500163, at *13–14 (S.D.N.Y. Aug. 9, 2021).
Accordingly, the Court denies the parties' cross-motions
for summary judgment as to Urena's excessive force claim
against Shaw.
II. Deliberate Indifference Claims
Urena next argues that Laguerre and Ortiz failed to intervene,
“leaving [him] naked inside of a search pen for a prolonged
period and duration.” Pl. Br. at 1. Urena acknowledges that
“there was nothing [Laguerre and Ortiz] could do” about
Shaw's use of chemical spray in the moment, Pl. Br. at 1, but
he nonetheless alleges that the officers acted with “deliberate
indifference” by “knowingly and deliberately” leaving him
alone “to suffer the effects of the spray, rather than rending
him aid,” Am. Compl. ¶ 46. 12 Urena thus brings a claim
for deliberate indifference to his conditions of confinement,
which can include officers depriving detainees of the right to
receive medical care, among other basic human needs. See
Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012).
12 As Defendants correctly note, Urena has
abandoned the specific claim that Laguerre and
Ortiz failed to intervene in the alleged use of
excessive force. See Lipton v. Cnty. of Orange, 315
F. Supp. 2d 434, 446 (S.D.N.Y. 2004); Dkt. No. 51
(“Def. Reply Br.”) at 5–6 & n.6. But Defendants
wrongly contend that the Court “need not” consider
claims against Laguerre and Ortiz, because,
contrary to their assertions, id., the amended
complaint does assert a deliberate indifference
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claim, see Am. Compl. ¶ 46 (“Laguerre and Ortiz
knowingly and deliberately left Plaintiff naked and
alone to shame him, and then left him a second
time to suffer the effects of the spray, rather than
rendering him aid, thereby displaying deliberate
indifference to Plaintiff's rights.”).
A pretrial detainee's claim of unconstitutional conditions of
confinement is governed by the Due Process Clause of the
Fourteenth Amendment. Darnell v. v. Pinheiro, 849 F.3d 17,
29 (2d Cir. 2017). To succeed on a deliberate indifference
claim alleging a failure to provide medical treatment, a
detainee first must show “that the injury or illness caused
a serious medical condition.” Ross, 2021 WL 3500163, at
*17. In particular, a “serious medical condition is generally
understood to be one that may produce death, degeneration,
or extreme pain.” Id.; Johnson v. Schiff, No. 17-cv-8000,
2019 WL 4688542, at *14 (S.D.N.Y. Sept. 26, 2019) (noting
that a condition is sufficiently serious if a plaintiff “suffer[s]
permanent effects” or “lasting physical injuries”). Second, a
plaintiff must show that “the defendant acted with deliberate
indifference toward that medical condition, so as either to
cause it or expose the plaintiff to risk from it.” Ross, 2021 WL
3500163, at *17. To establish deliberate indifference under
the Fourteenth Amendment, a plaintiff needs to show that “the
defendant-official acted intentionally to impose the alleged
condition, or recklessly failed to act with reasonable care
to mitigate the risk that the condition posed ... even though
the defendant-official knew, or should have known, that the
condition posed an excessive risk to health or safety.” Darnell,
849 F.3d at 35. This second element is referred to as the “mens
rea prong,” and “is defined objectively.” Id.
*9 “In cases of delayed medical treatment, ... the Court
should focus on the challenged delay or interruption in
treatment rather than the prisoner's underlying medical
condition alone.” Williams v. City of New York Dep't of Corr.,
2020 WL 3893929, at *4 (S.D.N.Y. July 10, 2020) (emphasis
omitted). Here, after Shaw sprayed Urena, Defendants let
Urena lie on the floor for approximately ten minutes before
officers in decontamination gear entered his cell and escorted
him to be decontaminated and treated. These actions do not
constitute an objective deprivation of Urena's right to due
process.
First, numerous judges in this district have routinely held
that the “temporary effects of chemical spray”—while
“undoubtedly uncomfortable and painful”—“do not rise to
the level of producing death, degeneration, or extreme pain”
as is required to establish a deliberate indifference claim.
Holmes v. City of New York, No. 17-cv-3874, 2018 WL
4211311, at *7 (S.D.N.Y. June 30, 2022); see, e.g., Lewis,
2014 WL 1364934, at *7 (rejecting a deliberate indifference
claim based on the effects of chemical gel as a matter of
law because “the temporary discomfort caused by pepper
spray or mace does not constitute a sufficiently serious
injury”); Ross, 2021 WL 3500163, at *18 (dismissing a
deliberate indifference claim based on the deployment of
pepper spray); Johnson, 2019 WL 4688542, at *14 (same);
Rodriguez v. Cohall, No. 21-cv-1810, 2022 WL 1228411, at
*4–5 (S.D.N.Y. Apr. 26, 2022) (same).
Urena asserts that the chemical spray caused his whole body
to “fe[el] like it was on fire,” that he “was having trouble
breathing,” and that his eyes “felt blurry.” Pl. Tr. at 32.
But, as Defendants note and Urena does not dispute, he
was decontaminated ten minutes later and received additional
treatment that same day. Def. 56.1 Statement ¶ 14; Pl. Tr.
at 32, 34. Urena was also provided pain medication and
acknowledges that his pain subsided after twenty-four hours.
Id. To be sure, the deployment of chemical spray into Urena's
face appears to have resulted in significant pain. See DOC
Footage at 18:10:58–18:12:13. But there is no evidence that
he “suffered permanent effects or serious injury from the ...
spray” sufficient to establish a deliberate indifference claim.
Johnson, 2019 WL 4688542, at *14.
Second, even if Urena's medical needs resulting from the
chemical spray had been sufficiently serious to meet prong
one of this claim, he nonetheless fails to raise a genuine
factual dispute concerning whether Laguerre and Ortiz
acted recklessly in their temporary denial of his medical
care. No evidence has been presented suggesting that the
ten-minute delay risked serious damage to his health or
worsened any medical condition, and the short duration of
the delay militates against a finding of objective recklessness.
Numerous courts in this circuit have similarly held that
temporary delays in treatment after a chemical spray incident
do not, without more, establish deliberate indifference. See,
e.g., Liverpool v. Davis, 442 F. Supp. 3d 714, 737 (S.D.N.Y.
2020) (rejecting a deliberate indifference claim, in the Eighth
Amendment context, where a plaintiff was forced to wait
three hours to receive medical attention after being exposed
to “a chemical irritant akin to pepper spray”); Blond v. City
of Schenectady, No, 10-cv-0598, 2010 WL 4316810, at *5
(N.D.N.Y. Oct. 26, 2010) (rejecting an inadequate medical
care claim whether plaintiff “was sprayed with pepper spray
and [ ] was not permit[ed] to rinse his eyes for thirty to sixty
minutes”). Further, the record does not establish that “the
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delay in treatment caused his condition to worsen,” nor does
Urena challenge “the reasonableness of the medical treatment
that he eventually received.” Liverpool, 442 F. Supp. 3d
at 737. Accordingly, the Court grants Defendants' summary
judgment motion as to Urena's deliberate indifference claims
against Laguerre and Ortiz. 13
13 In light of this ruling, the Court need not
determine whether the officers are entitled to
qualified immunity. See Posr v. City of New York,
No. 10-cv-2551, 2013 WL 2419142, at *10 n.8
(S.D.N.Y. June 4, 2013), aff'd sub nom. Posr v.
Ueberbacher, 569 F. App'x 32 (2d Cir. 2014)
(“Because [the defendant] did not violate [the
p]laintiff's Fourteenth Amendment rights, there is
no need to consider if [the defendant] is entitled to
qualified immunity.”).
III. NYCAC Claim
*10 Finally, Urena brings a claim against Shaw, Laguerre,
Ortiz, and the City of New York to enforce the right
established by the New York City Administrative Code
(“NYCAC”) § 8-802 “to be secure ... against unreasonable
searches and seizures, and to be secure against the use of
excessive force regardless of whether such force is used in
connection with a search or seizure.” Defendants state, and
Urena does not dispute, that he failed to file a notice of
claim related to the incident underlying this lawsuit. Def.
56.1 Statement ¶ 16; Pl. Br. at 11. Defendants thus argue that
Urena's claim fails because he did not serve a notice of claim
in compliance with New York General Municipal Law § 50-
e. See Def. Br. at 15–16. Urena asks the Court to extend the
deadline for service of a notice of claim—if required—in light
of his pro se status. Pl. Br. at 11.
The Court need not address the notice of claim issue because,
even assuming Urena had not been required to provide notice,
his claim under New York City Administrative Code §§
8-801 through 8-807 would fail. Pursuant to § 8-803, “[a]
covered individual” acting under color of law “is liable”
when he “subjects or causes to be subjected ... any other
natural person to the deprivation of any right that is created,
granted, or protected by section 8-802.” NYCAC § 8-803(a).
The provision also makes “[t]he employer of a covered
individual” liable “based upon the conduct of such covered
individual.” Id. § 8-803(b). Under § 8-801, “[t]he term
‘covered individual’ means (i) an employee of the police
department or (ii) a person who is appointed by the police
commissioner as a special patrolman.” Id. § 8-801. Urena
does not contend that any of the individual officers were
employed by the “police department” or were appointed as
“special patrolm[e]n.” Id. To the contrary, Urena asserts that
the officers are “members of the New York City Department
of Correction.” Am. Compl. ¶ 1. Therefore, Shaw, Laguerre,
and Ortiz are not “covered individual[s]” under the code, and
cannot be held liable under § 8-803. Because these officers
are not “covered individual[s],” the City also cannot be held
liable as an “employer of a covered individual.” NYCAC §
8-803. The Court thus grants Defendants summary judgment
as to Urena's claim under NYCAC §§ 8-801 through 8-807.
CONCLUSION
For the foregoing reasons, Defendants' motion for summary
judgment is denied with respect to Urena's excessive force
claim against Defendant Shaw under 42 U.S.C. § 1983, and
granted as to all other claims. Urena's motion for summary
judgment is denied in its entirety.
Because Defendants prevail on all claims against Laguerre,
Ortiz, and the City of New York, those Defendants are
dismissed from this action and the Clerk of Court is
respectfully directed to amend the caption accordingly.
The Clerk of Court is also respectfully directed to terminate
the motion pending at Dkt. No. 42 and to mail a copy of this
Opinion and Order to Urena.
No later than October 10, 2024, Urena shall notify the Court
whether he seeks counsel to represent him at trial.
All Citations
Not Reported in Fed. Supp., 2024 WL 4149182
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Urena v. City of New York
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Filings (1)
Title PDF Court Date Type
1. Docket 1:22-CV-04679
Urena v. Shaw
— S.D.N.Y. June 03, 2022 Docket
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Urena v. City of New York
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Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 48 of 175

Urena v. City of New York
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 49 of 175

Campbell v. City of Yonkers, Not Reported in Fed. Supp. (2023)
2023 WL 4867459
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 4867459
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Eric CAMPBELL, individually and as the Administrator
d.b.n. of the Estate of Erick Campbell; Michael
Campbell, as the Administrator of the Estate of
Robert Campbell; and Aida Campbell, Plaintiffs,
v.
CITY OF YONKERS; Police Officer Timothy
Cooper; Police Officer Thomas Braig; Police
Officer Adam Walencik; Detective Thomas Marello;
Sergeant Mark Wissner; Detective Brian Menton;
Detective Terence Malone; Sergeant Joseph
Barosa; Detective Michael McGee; Agent Brendan
Kenney; Agent Andrew Fisher; Agent Daniel
Conlon; and Agent Daniel McKenna, Defendants.
Eric Campbell, individually and as the Administrator
d.b.n. of the Estate of Erick Campbell; Michael
Campbell, as the Administrator of the Estate of
Robert Campbell; and Aida Campbell, Plaintiffs,
v.
United States of America, Defendant.
19 CV 2117 (VB), 19 CV 9444 (VB)
|
Signed July 31, 2023
Attorneys and Law Firms
Uri Nazryan, Philip Michael Hines, Held & Hines, LLP,
Brooklyn, NY, for Plaintiffs Aida Campbell, Eric Campbell,
Michael Campbell in 19 CV 2117, 19 CV 9444.
Rory Carleton McCormick, Corporation Counsel, City of
Yonkers, Yonkers, NY, for Defendants City of Yonkers, Police
Officer Timothy Cooper, Police Officer Thomas Braig in 19
CV 2117.
Zachary Bannon, DOJ-USAO, New York, NY, Ilan Stein,
U.S. Attorney's Office, New York, NY, for Defendant in 19
CV 9444.
OPINION AND ORDER
Briccetti, United States District Judge:
*1 These consolidated actions arise out of the attempted
arrest and fatal shooting of Erick Campbell during a
surveillance operation conducted by federal and local law
enforcement officers. Plaintiffs, members of Campbell's
family and the administrator of his estate, 1 bring federal
and related state law claims against the law enforcement
officers involved in the operation, the City of Yonkers, and
the United States of America, pursuant to 42 U.S.C. § 1983
and Monell v. Department of Social Services, 436 U.S. 658
(1978) (“Monell”), Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (“Bivens”),
and the Federal Tort Claims Act (“FTCA”).
1 Plaintiff Eric Campbell is Campbell's son and
the administrator of his estate. Plaintiff Aida
Campbell is Campbell's mother. Robert Campbell,
Campbell's father, was a plaintiff in these cases,
both individually and as the original administrator
of Campbell's estate, before his death in September
2021. Michael Campbell was then substituted as
a plaintiff, in his capacity as the administrator of
Robert Campbell's estate.
Now pending are four motions for summary judgment,
filed by (i) Federal Bureau of Investigation (“FBI”) Special
Agents Brendan Kenney, Andrew Fisher, and Daniel Conlon;
Supervising Special Agent Daniel McKenna (the “FBI
defendants”); and the United States (together with the FBI
defendants, the “federal defendants”) (Doc. #169 and FTCA
Doc. #89); 2 (ii) Tarrytown Police Department (“TPD”)
Detective Michael McGee and Sergeant Joseph Barosa
(the “Tarrytown defendants”) (Doc. #174); (iii) Yonkers
Police Department (“YPD”) Officers Timothy Cooper,
Thomas Braig, and Adam Walencik; Sergeant Mark Wissner;
Detectives Thomas Marello and Brian Menton; and the City
of Yonkers (the “Yonkers defendants”) (Doc. #178); and (iv)
Westchester County Police Department (“WCPD”) Detective
Terence Malone (Doc. #186). 3
2 Unless otherwise noted, “Doc. #__” refers to
documents filed in the lead case, 19 Civ. 2117;
“FTCA Doc. #__” refers to documents filed in the
member case, 19 Civ. 9444.
3 The individual defendants who are not FBI
agents—Barosa, Braig, Cooper, Malone, Marello,
McGee, Menton, Walencik, and Wissner—are
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Campbell v. City of Yonkers, Not Reported in Fed. Supp. (2023)
2023 WL 4867459
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collectively referred to herein as the “local police
defendants.”
For the following reasons, the federal defendants’ and the
Yonkers defendants’ motions are GRANTED IN PART and
DENIED IN PART, and the Tarrytown defendants’ and
Malone's motions are GRANTED.
The Court has subject-matter jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1367.
BACKGROUND
The Court presumes the parties’ familiarity with the factual
allegations and procedural history of these actions, including
the Court's Opinion and Order dated September 15, 2020,
which ruled on the federal defendants’ and Malone's motions
to dismiss. (Doc. #107 and FTCA Doc. #34 (the “MTD
Decision”)). 4 Accordingly, the Court summarizes below
only the relevant background, as reflected in the parties’
memoranda of law, statements of undisputed material facts
pursuant to Local Civil Rule 56.1, and supporting declarations
and exhibits.
4 The operative pleadings in these consolidated
actions are plaintiffs’ October 11, 2019, complaint
filed against the United States (FTCA Doc. #1
(“Compl.”)), and plaintiffs’ November 4, 2019,
second amended complaint, filed against all other
named defendants (Doc. #67 (“SAC”)).
I. The Task Force
*2 When the events relevant to this action occurred, the
FBI defendants and three of the local police defendants,
Marello, Menton, and Malone, were members of the FBI
Westchester County Safe Streets Gang and Violent Crime
Task Force, Squad C-26 (the “task force”). Marello, Menton,
and Malone were formally deputized and assigned to serve as
Task Force Officers (“TFOs”), pursuant to Memorandums of
Understanding between the FBI and their respective agencies.
(Doc. #187-3).
The other individual defendants were not members of the task
force. However, they agreed to assist with the surveillance
operation, at the request of Kenney and Menton. 5
5 The individual defendants are collectively referred
to herein as the “team.”
II. The Surveillance Operation
In the month before the surveillance operation, the task force
was investigating two bank robberies, which occurred at a
Chase Bank in Tarrytown, New York, on November 13, 2017,
and a Chase Bank in Elmsford, New York, on December 7,
2017. During both robberies, an unknown individual wore a
dark mask, displayed a firearm, and fled the scene in a stolen
vehicle.
The getaway car in the Tarrytown robbery was discovered
by the FBI on November 20, 2017. The car was apparently
abandoned and bore New York license plates registered to a
different vehicle.
On the night of December 14, 2017, members of the
Greenburgh Police Department (“GPD”) located a stolen
Oldsmobile sedan on a residential street in Yonkers, New
York, believed to be the getaway car from the Elmsford
robbery. A GPD detective notified Kenney. They decided
GPD would maintain surveillance of the vehicle overnight
and the task force would relieve GPD in the morning.
During the night, task force members including Kenney,
Fisher, McKenna, Marello, and Menton, discussed a plan to
surveil the vehicle and to arrest any individual who entered it
for possession of a stolen vehicle. Kenney was designated the
leader of the operation.
Around 6:00 a.m. on December 15, Fisher and Marello
took over surveillance from GPD, as planned. Kenney then
requested assistance from other task force members. In
addition, Kenney asked Menton to request backup from YPD,
Menton's home agency. Menton called Wissner, who led
YPD's plainclothes pattern crimes unit, to ask if Wissner
had any officers available to assist with the operation.
Three members of the unit—Braig, Cooper, and Walencik
—agreed to provide the requested backup, as did Wissner
himself. Barosa and McGee, who led TPD's investigation of
the Tarrytown robbery, also assisted with the operation at
Kenney's request.
The team members arrived at the scene at various times that
morning and afternoon. Upon arrival, they were briefed by
Kenney or Menton, who explained they were surveilling a
vehicle used in an armed bank robbery and the person who
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entered the vehicle might have a gun. Team members were
given FBI radios for communicating during the operation.
Early that afternoon, Fisher obtained a warrant to install a
GPS tracking device on the vehicle. FBI agents installed and
turned on the device shortly thereafter. But because Kenney
had a “hunch” the subject was going to rob a third Chase
Bank location on December 15, the team planned to continue
surveillance until around 6:00 p.m., when most banks in the
area closed. (Doc. #197-9 (“Kenney Dep.”) at 50). 6 If the
subject did not show up that evening, the task force would
monitor the vehicle via the GPS device.
6 Citations to “Dep. at __” refer to the page number
at the top right-hand corner of each deposition
transcript page.
*3 Around 3:50 p.m., Marello radioed that a man, wearing
dark clothing and holding a bag, was approaching the subject
vehicle.
The man—identified after the shooting as Erick Campbell
—entered the vehicle through the front passenger side door,
placed a duffel bag inside, and started the engine. He then
exited the vehicle from the driver's side door and began
clearing snow from the vehicle. After Campbell reentered the
vehicle, Kenney directed the team to converge.
Kenney positioned his unmarked law enforcement vehicle
a few inches behind the subject vehicle, while Malone
approached from the front in an unmarked rental vehicle. Both
then exited their vehicles, with guns drawn. Soon thereafter,
Braig, accompanied by Cooper, pulled his unmarked vehicle
up alongside the driver's side of the subject vehicle. Other
team members parked their own unmarked vehicles nearby
and approached on foot, with weapons drawn. The team
announced themselves as “police” and shouted at Campbell
to “turn off the car,” “get out of the car,” and “show me your
hands.” (Kenney Dep. at 111; Doc. #197-3 (“Malone Dep.”)
at 129–30; Doc. #197-5 (“Braig Dep.”) at 137; Doc. #197-6
(“Menton Dep.”) at 91; Doc. #197-12 (“Barosa Dep.”) at 80).
When the team converged, Campbell tried to drive away. As
Campbell began pulling away from the curb, Braig's vehicle
collided with Campbell's vehicle and pushed it back between
Kenney's and Malone's vehicles. Campbell moved the subject
vehicle back and forth several times to try to flee. However,
Kenney repeatedly rammed into the vehicle to keep it wedged
between Malone's vehicle and his own, until Campbell's
vehicle became disabled.
The parties disagree about what happened next.
Defendants claim Campbell reached over to the passenger
seat, picked up what appeared to be a black handgun (but was
later determined to be a replica), and pointed it toward one or
more officers.
According to Marello, as he ran up to the passenger side
of the vehicle from the rear, he saw Campbell reach over
to the passenger seat and pick up the replica gun. Marello
testified he shouted “gun” several times to warn the other team
members. (Doc. #197-15 (“Marello Dep.”) at 90). He then
moved behind Braig's vehicle after hearing another officer
yell “watch the crossfire” and realizing he was at risk of being
shot by or shooting other officers. (Id. at 92–97).
Meanwhile, Cooper was in the passenger seat of Braig's
vehicle, near the driver's side of the subject vehicle and
approximately three to four feet away from Campbell. Cooper
testified he saw Campbell “reach down to the passenger
side interior of the floorboard,” heard someone yell “he's
got a gun,” and then saw Campbell “pull up with a gun in
his right hand.” (Doc. #197-4 (“Cooper Dep.”) at 133–37,
143–44). Cooper further testified he saw Campbell point the
replica gun toward the front passenger side of the vehicle,
and believed Campbell “intend[ed] to shoot those officers on
the sidewalk.” (Id. at 143). “A second or two” later, without
warning anyone he was going to shoot, Cooper fired his own
weapon at Campbell's chest. (Id. at 140). Cooper fired sixteen
rounds, the capacity of his weapon. Cooper testified he kept
firing until he was out of ammunition, even though he was
“fairly certain” he had hit Campbell, because Campbell “was
still moving and still had a gun in his hand.” (Id. at 144–47).
*4 Shortly before the shooting started, Braig was standing
on the driver's side of his own vehicle, looking over the
roof and down into the subject vehicle. He testified he
saw Campbell's right hand reach toward the passenger seat,
disappear for a moment, and then reappear holding the replica
gun, right as “somebody yelled gun.” (Braig Dep. at 143–
44). Braig claims he then saw Campbell “swinging his right
arm from the passenger seat up into the direction towards our
car.” (Id. at 146). At that point, Braig “heard the gunshots,”
saw “glass flying everywhere,” and “thought [Cooper] was
being shot by this guy.” (Id. at 145–47). Seconds after hearing
the gunshots, Braig fired his own weapon at Campbell. (Id.
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at 147). Braig fired three shots at Campbell. Braig claims he
stopped shooting when he saw Campbell's hand was down
and thus Campbell no longer posed a threat. (Id. at 151–52).
When Kenney first heard “gun,” he was behind the subject
vehicle and could not see Campbell's hands. He “had tunnel
vision at that point” and was focused on Campbell's head.
(Kenney Dep. at 123). Kenney testified that when the shots
fired by Cooper and Braig blew out the back passenger-side
window of the subject vehicle, he thought Campbell had fired
on Malone, who Kenney believed was standing on that side
of the vehicle. (Id. at 125–26, 128). Kenney then fired two
shots at Campbell, aiming for his head. Kenney claims he shot
Campbell “[t]o save” Malone. (Id. at 128). Kenney did not
warn that he was going to shoot before firing his weapon, and
did not hear any officer do so.
The shooting lasted only a few seconds. Of the twenty-one
rounds fired, ten hit Campbell. Most of the rounds entered the
left side of Campbell's torso and back; two of those perforated
his left lung. (Doc. #172-14 (“FBI Inspector's Report”) at 10,
13; Doc. #172-31 (“Autopsy Report”) at ECF 6). 7
7 “ECF __” refers to page numbers automatically
assigned by the Court's Electronic Case Filing
system.
Plaintiffs dispute that any officer saw Campbell brandishing
the replica gun before or during the shooting. In support,
plaintiffs offer testimony from Barosa and McGee that heavy
snow and exhaust fumes made the visibility so bad they could
not see anything inside the vehicle—even though Barosa
was right next to the driver's side door and McGee was
next to the passenger's side, right by Marello. (Barosa Dep.
at 69–70, 78; Doc. #197-13 (“McGee Dep.”) at 52–54).
In addition, plaintiffs argue Marello's account of events—
in which Campbell purportedly brandished the gun while
simultaneously changing gears and steering—would have
required Campbell to have three hands. (Doc. #196 (“Pls.
Opp.”) at 25 (citing Marello Dep. at 86–89)). Plaintiffs also
note no fingerprints were found on the replica gun.
Plaintiffs further contend that even if Campbell did raise
the replica gun, there is a question of fact as to whether
he pointed it at any officers. For example, although Cooper
testified he shot Campbell to save “those officers on the
sidewalk” (Cooper Dep. at 143), McGee's testimony indicates
he and the other officers who had been standing on the
sidewalk—Marello and Malone—had already moved away
from the subject vehicle and were back by Kenney's vehicle
when Cooper fired his weapon. (McGee Dep. at 60; see also
Marello Dep. at 100–03).
Immediately after the shooting stopped, several officers
emerged from the positions where they had taken cover
and approached the subject vehicle. McGee testified he saw
Campbell through a bullet hole in the rear passenger window,
and that Campbell was facing the passenger side window,
with his shoulder blades pressed against the driver's side door.
According to McGee, the replica gun was on the passenger
seat, with Campbell's “fingertips at the edge of the weapon on
the seat.” (McGee Dep. at 62).
McGee then reached through the bullet hole and unlocked the
front passenger door of the subject vehicle. He picked up the
replica gun, at which point he realized it was not real, and put
it on the roof of the car, along with the duffel bag. Malone
and Menton removed Campbell from the vehicle and placed
him on the ground.
*5 At that point—less than a minute after the shooting
ended—Menton called an ambulance, while Barosa patted
Campbell down and inspected him for injuries. Campbell
“seemed to be on the verge of death.” (Barosa Dep. at 82).
And although Campbell initially had a pulse, “that quickly
stopped” and he seemed to stop breathing. (Id. at 82–83).
Barosa and McGee immediately began administering CPR,
and asked Menton to expedite emergency medical personnel.
Menton then made another radio call, requesting a rush on the
ambulance. (Menton Dep. at 107–08; Doc. #179-20 (“YPD
Radio Log”) at ECF 1).
At some point before the ambulance came, a YPD Emergency
Services Unit arrived at the scene. They took over CPR from
Barosa and McGee and used a defibrillator on Campbell.
The ambulance arrived approximately twelve minutes after
the shooting. Campbell was transported to a hospital, where
he died from the gunshot wounds to his torso less than an hour
after the shooting. (Autopsy Report at ECF 2; FBI Inspector's
Report at 13).
III. Plaintiffs’ Claims
Plaintiffs bring Bivens claims against the FBI defendants, and
Section 1983 claims against the other individual defendants,
for purported violations of Campbell's constitutional rights.
Specifically, plaintiffs claim Campbell's Fourth Amendment
rights were violated in four main ways: (i) Cooper, Braig,
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and Kenney used excessive force when they fired their
weapons; (ii) the team used excessive force when boxing
in the subject vehicle; (iii) the team's tactical decisions and
certain omissions from the plan made the use of deadly
force inevitable; and (iv) the non-firing defendants failed to
prevent or stop the use of deadly force. Plaintiffs further
claim the individual defendants violated Campbell's Fifth and
Fourteenth Amendment rights by failing timely to provide
adequate medical care. Plaintiffs also bring related state-law
claims against individual defendants. 8
8 In the MTD Decision, the Court dismissed
plaintiffs’ claims against the federal defendants
and Malone for (i) purported violations of the
First and Eighth Amendments; (ii) unlawful
search and seizure in contravention of the Fourth
Amendment; (iii) conspiracy to violate Campbell's
constitutional rights; (iv) negligence; (v) negligent
hiring, training, and supervision; and (vi) negligent
and intentional infliction of emotional distress.
(See MTD Decision at 11–13, 22–24, 28–31).
The Yonkers defendants and Tarrytown defendants,
who did not file motions to dismiss, argue they
are entitled to summary judgment on those same
claims. (See Doc. #175 (“Tarrytown Mem.”) at 11–
12; Doc. #180 (“Yonkers Mem.”) at 10–12, 17–
19). Plaintiffs’ opposition brief makes no attempt to
respond to defendants’ arguments regarding those
claims. Accordingly, the Court deems the claims
abandoned. See Jackson v. Federal Exp., 766 F.3d
189, 195 (2d Cir. 2014) (“[A] partial response
arguing that summary judgment should be denied
as to some claims while not mentioning others may
be deemed an abandonment of the unmentioned
claims.”); Cowan v. City of Mount Vernon, 95
F. Supp. 3d 624, 645 (S.D.N.Y. 2015) (granting
summary judgment on claims because of plaintiff's
failure to respond to defendant's arguments). And
in any event, the claims fail as a matter of law, for
the reasons set forth in the MTD Decision.
In addition, plaintiffs bring Monell claims against the City
of Yonkers for the purported constitutional violations, on the
ground that the City did not adequately train YPD officers
regarding its use of force policies, and respondeat superior
claims for the YPD officers’ alleged torts.
*6 Finally, plaintiffs assert FTCA claims against the United
States for (i) assault and battery; (ii) wrongful death; (iii)
conscious pain and suffering; and (iv) loss of love, support,
and familial relationships.
DISCUSSION
I. Legal Standard
The Court must grant a motion for summary judgment if
the pleadings, discovery materials before the Court, and any
affidavits show there is no genuine issue as to any material
fact and it is clear the moving party is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
A fact is material when it “might affect the outcome of the suit
under the governing law .... Factual disputes that are irrelevant
or unnecessary” are not material and thus cannot preclude
summary judgment. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). 9
9 Unless otherwise indicated, case quotations omit
all internal citations, quotations, footnotes, and
alterations.
A dispute about a material fact is genuine if there is sufficient
evidence upon which a reasonable jury could return a verdict
for the non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. at 248. The Court “is not to resolve disputed
issues of fact but to assess whether there are any factual issues
to be tried.” Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60
(2d Cir. 2010). It is the moving party's burden to establish
the absence of any genuine issue of material fact. Zalaski v.
Bridgeport Police Dep't, 613 F.3d 336, 340 (2d Cir. 2010).
If the non-moving party fails to make a sufficient showing on
an essential element of its case on which it has the burden
of proof, then summary judgment is appropriate. Celotex
Corp. v. Catrett, 477 U.S. at 323. If the non-moving party
submits “merely colorable” evidence, summary judgment
may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S.
at 249–50. The non-moving party “must do more than
simply show that there is some metaphysical doubt as to the
material facts and may not rely on conclusory allegations
or unsubstantiated speculation.” Brown v. Eli Lilly & Co.,
654 F.3d 347, 358 (2d Cir. 2011). “[T]he mere existence of
a scintilla of evidence” supporting the non-moving party's
position is likewise insufficient; there must be evidence on
which the jury could reasonably find for it. Dawson v. Cnty.
of Westchester, 373 F.3d 265, 272 (2d Cir. 2004).
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On summary judgment, the Court construes the facts, resolves
all ambiguities, and draws all permissible factual inferences
in favor of the non-moving party. Dallas Aerospace, Inc. v.
CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). If “there is
any evidence in the record from which a reasonable inference
could be drawn in favor of the [non-moving] party” on
the issue on which summary judgment is sought, “summary
judgment is improper.” See Sec. Ins. Co. of Hartford v. Old
Dominion Freight Line, Inc., 391 F.3d 77, 82–83 (2d Cir.
2004).
Importantly, “in cases in which officers have used deadly
force, leaving the witness most likely to contradict the
officers’ version of the events unable to testify, the court
may not simply accept what may be a self-serving account
by the police officer but must instead consider circumstantial
evidence that, if believed, would tend to discredit the
police officer's version and must undertake a fairly critical
assessment of, inter alia, the officer's original reports or
statements to decide whether the officer's testimony could
reasonably be rejected at a trial.” Soto v. Gaudett, 862 F.3d
148, 157 (2d Cir. 2017).
II. Bivens Claims Against the FBI Defendants
*7 In its September 2020 MTD Decision, the Court
dismissed all of plaintiffs’ claims against the FBI defendants,
except the Bivens claims for excessive force and deliberate
indifference to serious medical needs. The FBI defendants
argue the Bivens claims cannot stand in light of intervening
Supreme Court precedent, specifically Egbert v. Boule, 142
S. Ct. 1793 (2022), decided in 2022.
The Court agrees.
A. Applicable Law
In Bivens, the Supreme Court implied a private right of action
under the Fourth Amendment for an unreasonable search
and seizure claim against federal drug enforcement agents
who handcuffed a man in his own home without a warrant.
See Bivens v. Six Unknown Narcotics Agents, 403 U.S.
388, 389, 397 (1971). “Since then, the Supreme Court has
recognized Bivens claims in only two other circumstances:
(1) under the Fifth Amendment's Due Process Clause for
gender discrimination against a congressman for firing his
female secretary, and (2) under the Eighth Amendment's
prohibition on cruel and unusual punishment against prison
officials for failure to treat an inmate's asthma which led to his
death.” Rivera v. Samilo, 370 F. Supp. 3d 362, 366 (E.D.N.Y.
2019) (citing Davis v. Passman, 442 U.S. 228 (1979), and
Carlson v. Green, 446 U.S. 14 (1980)).
In Egbert v. Boule, the Supreme Court set out a two-
step inquiry for courts to determine whether to imply a
Bivens cause of action. First, the court must determine
“whether the case presents ‘a new Bivens context,’—i.e., is
it ‘meaningfully’ different from the three cases in which the
[Supreme] Court has implied a damages action.” Egbert v.
Boule, 142 S. Ct. at 1803 (quoting Ziglar v. Abbasi, 582 U.S.
120, 139–40 (2017)). The Supreme Court's “understanding of
a ‘new context’ is broad.” Hernandez v. Mesa, 140 S. Ct. 735,
743 (2020). For example, “a new context arises when there is
a new constitutional right at issue,” Egbert v. Boule, 142 S.
Ct. at 1807, or when the defendants were operating under a
different “statutory or legal mandate.” Ziglar v. Abbasi, 582
U.S. at 139–40. And importantly, “[a] claim may arise in a
new context even if it is based on the same constitutional
provision as a claim in a case in which a damages remedy was
previously recognized.” Hernandez v. Mesa, 140 S. Ct. at 743.
“Second, if a claim arises in a new context, a Bivens remedy
is unavailable if there are ‘special factors’ indicating that the
Judiciary is at least arguably less equipped than Congress
to ‘weigh the costs and benefits of allowing a damages
action to proceed.’ ” Egbert v. Boule, 142 S. Ct. at 1803
(quoting Ziglar v. Abbasi, 137 S. Ct. at 1858). Because
“recognizing a cause of action under Bivens is a disfavored
judicial activity,” a court may not imply a Bivens remedy if
there is “[e]ven a single sound reason to defer to Congress.”
Id. According to the Supreme Court, “in most every case,” it
is Congress, not the judiciary, “who should decide whether
to provide for a damages remedy.” Id. Moreover, “a court
may not fashion a Bivens remedy if Congress already has
provided, or has authorized the Executive to provide, an
alternative remedial structure”—even if “existing remedies
do not provide complete relief” or a “a wrong ... would ... go
unredressed” without a judicial remedy. Id. at 1804.
The Egbert Court held a plaintiff had no Bivens remedy
against a border patrol agent who allegedly entered the
plaintiff's property without a warrant and assaulted him. First,
the Court found the claim presented a new context for Bivens
purposes and that Congress was better equipped to decide
whether to provide a damages remedy. Egbert v. Boule, 142
S. Ct. at 1805. In doing so, the Court acknowledged Bivens
also involved allegations of excessive force and thus the two
cases “arguably present ‘almost parallel circumstances’ or
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a similar ‘mechanism of injury.’ ” Id. However, the Court
reasoned “these superficial similarities are not enough to
support the judicial creation of a cause of action.” Id. Second,
the Court concluded “Congress has provided alternative
remedies for aggrieved parties in [the plaintiff's] position”—
namely, internal investigations of alleged misconduct and
the Border Patrol's grievance process—which “independently
foreclose[d] a Bivens action.” Id. at 1806.
B. Application
*8 Although this Court previously concluded plaintiffs had
pleaded Bivens claims against the FBI defendants, the Court
must reconsider its conclusion in light of Egbert v. Boule.
Having done so, the Court is convinced the Supreme Court,
if confronted with plaintiffs’ claims, would find no cause of
action under Bivens.
First, there are several meaningful differences between this
case and Bivens, such that plaintiffs’ asserted claims arise in a
new context. Bivens involved a warrantless arrest and search
of the plaintiff's home, whereas this case involves an arrest
made on a public street with probable cause. Moreover, the
officers involved in Bivens were federal drug enforcement
agents, whereas here the officers were FBI agents, task force
officers, and other local law enforcement officers. And the
Court in Bivens reasoned that the right at issue was primarily a
Fourth Amendment right to privacy, 403 U.S. at 389, whereas
here the Fourth Amendment right at issue is the right to be
free from excessive force.
Plaintiff's deliberate indifference claim also arises in a new
context. Plaintiffs’ allegations materially differ from those in
Carlson v. Green, the only case in which the Supreme Court
has found a Bivens remedy for constitutionally inadequate
medical care. 446 U.S. 14 (1980). The defendants in Carlson
v. Green were federal prison officials who allegedly failed to
treat an inmate's asthma, not law enforcement officers who
allegedly delayed treatment of an arrestee's injuries. Id. at
16. Moreover, the claim in Carlson v. Green was brought
under the Eighth Amendment, as opposed to plaintiffs’ Fifth
Amendment claim here. Id.
With respect to the second step in the Bivens analysis, several
factors counsel hesitation in extending Bivens to plaintiffs’
claims. First, there are sound reasons to believe Congress is
better suited to decide whether to permit a damages action for
aggrieved parties in plaintiffs’ position:
It is not necessarily a judicial function
to establish whole categories of cases
in which federal officers must defend
against personal liability claims in
the complex sphere of litigation,
with all of its burdens on some
and benefits to others. It is true
that, if equitable remedies prove
insufficient, a damages remedy might
be necessary to redress past harm
and deter future violations. Yet the
decision to recognize a damages
remedy requires an assessment of its
impact on governmental operations
systemwide. Those matters include the
burdens on Government employees
who are sued personally, as well as
the projected costs and consequences
to the Government itself when the tort
and monetary liability mechanisms of
the legal system are used to bring
about the proper formulation and
implementation of public policies.
Ziglar v. Abbasi, 137 S. Ct. at 1858; see also Egbert v.
Boule, 142 S. Ct. at 1803 (“[A] court likely cannot predict the
systemwide consequences of recognizing a cause of action
under Bivens.”).
Moreover, there are multiple alternative remedial structures
available to plaintiffs on their claims against the FBI
Defendants. Plaintiffs could—and did—bring tort claims
against the United States under the FTCA. And pursuant to
Department of Justice and FBI policy, the FBI conducted an
internal investigation after the shooting. (See generally FBI
Inspector's Report; Doc. #173). These alternative remedies
“independently foreclose a Bivens action.” Egbert v. Boule,
142 S. Ct. at 1806.
*9 Accordingly, plaintiffs’ Fourth and Fifth Amendment
claims against the FBI defendants must be dismissed.
III. Section 1983 Claims Against the Local Police
Defendants
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A. Excessive Force Claims
Braig and Cooper argue they are entitled to summary
judgment on plaintiffs’ excessive force claims because the
amount of force they used was reasonable as a matter of law.
Barosa, Malone, Marello, Menton, McGee, Walencik, and
Wissner argue they are entitled to summary judgment because
the undisputed facts establish they did not use excessive
force or have a reasonable opportunity to prevent the use of
excessive force. The local police defendants also argue they
are entitled to summary judgment on the basis of qualified
immunity.
The Court disagrees that Braig and Cooper are entitled to
summary judgment with respect to plaintiffs’ excessive force
claim against them premised on their use of deadly force.
However, the Court agrees plaintiffs’ other excessive force
claims must be dismissed.
1. Applicable Law
“A police officer violates the Fourth Amendment if
the amount of force he uses in effectuating an arrest
is ‘objectively unreasonable’ in light of the facts and
circumstances confronting’ the officer.” Lennox v. Miller,
968 F.3d 150, 155 (2d Cir. 2020) (quoting Graham v. Connor,
490 U.S. 386, 397 (1989)). Determining “whether an officer
has used excessive force requires careful attention to the
facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade
arrest by flight.” Kisela v. Hughes, 138 S. Ct. 1148, 1152
(2018). “The reasonableness of a particular use of force must
be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.” Id.
“The fact that a person whom a police officer attempts to
arrest resists no doubt justifies the officer's use of some degree
of force, but it does not give the officer license to use force
without limit.” Brown v. City of New York, 798 F.3d 94, 103
(2d Cir. 2015). And “an officer's use of deadly force in a police
shooting case is not, as a matter of law, reasonable unless that
officer had probable cause to believe that the individual posed
a significant threat of death or serious physical injury to the
officer or others.” Callahan v. Wilson, 863 F.3d 144, 152 (2d
Cir. 2017).
In addition, “planners may be liable under section 1983 to
the extent that a plan for a search or seizure, as formulated
and approved by those defendants, provides for and results
in an unconstitutionally excessive use of force.” Terebesi v.
Torreso, 764 F.3d 217, 234 (2d Cir. 2014). “A defendant who
plans or directs an unreasonable use of force is liable for
the resulting constitutional violation as a direct participant.”
Id. On the other hand, a defendant cannot be held liable for
excessive force on the grounds that he “himself created the
situation in which the use of deadly force became necessary
by violating police procedure” before the shooting, or that
his “ill-conceived ruse, which did not contemplate excessive
force, provoked [a] deadly confrontation.” Id. at n.16.
*10 Finally, “all law enforcement officials have an
affirmative duty to intervene to protect the constitutional
rights of citizens from infringement by other law enforcement
officers in their presence.” Anderson v. Branen, 17 F.3d 552,
557 (2d Cir. 1994). “Failure to intercede results in liability
where an officer observes excessive force is being used or has
reason to know that it will be.” Jean-Laurent v. Wilkerson, 461
F. App'x 18, 21 (2d Cir. 2012) (summary order). “However,
in order for liability to attach, there must have been a realistic
opportunity to intervene to prevent the harm from occurring.”
Id.
“In each case, the question whether a defendant had a realistic
chance to intercede will turn on such factors as the number of
officers present, their relative placement, the environment in
which they acted, the nature of the assault, and a dozen other
considerations.” Figueroa v. Mazza, 825 F.3d 89, 107 (2d Cir.
2016). “Among these considerations, of course, the assault's
duration will always be relevant and will frequently assume
great importance.” Id. “The essential inquiry is whether, under
the circumstances actually presented, an officer's failure to
intervene permits a reasonable conclusion that he became a
tacit collaborator in the unlawful conduct of another.” Id. at
107–08.
“In light of the fact-specific nature of the inquiry on an
excessive force claim, granting summary judgment against
a plaintiff on such a claim is not appropriate unless
no reasonable factfinder could conclude that the officers’
conduct was objectively unreasonable.” Lennox v. Miller, 968
F.3d at 155.
2. Use of Deadly Force
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It is undisputed that Braig and Cooper, but none of the other
local police defendants, shot Campbell. And here, plaintiffs
have raised genuine, material disputes as to “the facts and
circumstances confronting” Braig and Cooper when they
fired their weapons, and thus as to whether their use of deadly
force was “objectively reasonable.” Lennox v. Miller, 968
F.3d at 155.
The reasonableness of Cooper's initial decision to fire his
weapon largely depends on whether, as he claims, he
reasonably believed Campbell posed a significant threat of
death or serious injuries to officers standing by the passenger
side of the subject vehicle. Similarly, the reasonableness of
Braig's decision to fire his weapon depends on whether he
reasonably believed Campbell was firing at Cooper. And the
reasonableness of each officer's decision to fire subsequent
shots depends on whether they reasonably believed Campbell
remained a threat when they fired those additional rounds. See
Estate of Jaquez v. City of New York, 104 F. Supp. 3d 414, 437
(S.D.N.Y. 2015) (“While it may have been reasonable for [the
officer] to use lethal force earlier in the altercation when [the
decedent] threatened the officers with a knife, such authority
does not extend indefinitely.”).
These are jury questions.
On the one hand, the record contains evidence from which
a reasonable jury could conclude Cooper and Braig had
probable cause to believe Campbell posed a significant threat
to officers before and throughout the shooting. For example,
the replica gun was found on the passenger seat, “in close
proximity” to Campbell's right hand, from which a reasonable
juror might conclude Campbell brandished it. (McGee Dep.
at 64). And jurors could certainly credit testimony by Cooper,
Braig, and Marello that they saw Campbell point the gun
at other officers, as well as Malone's testimony that he
was standing by the passenger side of the subject vehicle
throughout the shooting.
*11 On the other hand, the record also contains
“circumstantial evidence that, if believed, would tend to
discredit” Cooper's and Braig's explanations for why they shot
Campbell. Soto v. Gaudett, 862 F.3d at 157. For example,
jurors could credit McGee's testimony that he, Malone, and
Marello were no longer standing by the passenger side of the
subject vehicle when Cooper began firing. A reasonable juror
could also infer from autopsy evidence regarding the location
of the bullet wounds, combined with McGee's testimony that
both of Campbell's “shoulder blades were pressed against the
driver's door” immediately after the shooting, that Campbell
was not pointing the gun in Cooper's direction when Braig
fired at least one of the rounds. (McGee Dep. at 62).
Moreover, jurors could use autopsy evidence regarding the
severity of the wounds, and testimony that Campbell was
“on the verge of death” a minute after the shooting ended,
to determine Braig and Cooper could not have reasonably
believed Campbell was a threat when they fired their final
shots. (Barosa Dep. at 82).
In short, there are triable issues of fact as to whether Cooper's
and Braig's use of deadly force was reasonable. And “disputed
material issues regarding the reasonableness of an officer's
perception of the facts (whether mistaken or not) is the
province of the jury.” Jones v. Treubig, 963 F.3d 214, 231
(2d Cir. 2020); see also Terebesi v. Torreso, 764 F.3d at
240 (“The credibility of [an officer's] recollection and the
sufficiency of the asserted basis for his mistaken impression
that [the decedent] was firing at the officers are ... matters to
be determined by the factfinder.”).
Accordingly, summary judgment as to Braig and Cooper on
plaintiffs’ excessive force claim is not warranted.
3. The Box-In Maneuver
No reasonable juror could conclude the local police
defendants used excessive force when boxing in the subject
vehicle.
The undisputed facts show only Kenney, Braig, and Malone's
vehicles made contact with the subject vehicle during the
operation, and that they did not do so until after Campbell
tried to flee. Braig's vehicle collided with Campbell's as
Campbell pulled away from the curb. After that collision,
Campbell reversed into Kenney's vehicle. Kenney then
“pressed the accelerator and rammed [Campbell] into
[Malone's] car.” (Kenney Dep. at 115–16). As Campbell
moved back and forth to try to escape, Kenney repeatedly
“push[ed] [Campbell's] car forward into [Malone's] car to
keep it pinned.” (Id. at 119).
There is also no genuine dispute that when Kenney, Braig,
and Malone used their vehicles to prevent Campbell from
leaving the scene, they believed he was connected to—and
had likely committed—two armed bank robberies, and might
be armed at that moment. And although plaintiffs speculate
that Campbell may not have known he was surrounded by
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police or heard the officers’ commands to show them his
hands and get out of the car (Pl. Opp. at 23), those commands
were shouted. (See Doc. #171 (“Fed. Defs. 56.1 Statement”)
¶ 43). 10 As such, a reasonable officer could have believed
Campbell refused to submit to arrest and was attempting to
flee the scene. Thus, on the undisputed facts, viewed “from
the perspective of a reasonable officer on the scene,” the force
used to trap Campbell's vehicle was objectively reasonable.
Kisela v. Hughes, 138 S. Ct. at 1152.
10 Plaintiffs purport to “dispute that these commands
were yelled” on the grounds that “there is no
audio or video recording of the shooting.” (Doc.
#198 (“Pls. 56.1 Response to Fed. Defs.”)
¶ 43). But plaintiffs’ contention is mere
speculation, unsupported by any citation to
evidence. Accordingly, for the purpose of deciding
the motions, the Court finds it undisputed that team
members yelled the commands enumerated in the
corresponding statement of material fact. See Baity
v. Kralik, 51 F. Supp. 3d 414, 418 (S.D.N.Y. 2014)
(“[R]esponses that do not point to any evidence
in the record that may create a genuine issue of
material fact do not function as denials, and will be
deemed admissions of the stated fact,” pursuant to
Local Civil Rule 56.1).
*12 Accordingly, plaintiffs’ excessive force claim premised
on the use of force during the box-in maneuver must be
dismissed.
4. Planner Liability
Plaintiffs claim Marello and Menton “could ... be held liable
under” Terebesi v. Torreso, 764 F.3d 217, because they helped
Kenney develop the plan for the operation. (Pls. Opp. at 30).
But this claim fails as a matter of law.
The undisputed facts show the plan did not “provide[ ] for ...
an unconstitutionally excessive use of force.” Cf. Terebesi v.
Torreso, 764 F.3d at 234. With respect to the use of deadly
force, Menton testified “the plan was to get [Campbell] out
of the car peacefully, but [Campbell] kind of changed the
plan.” (Menton Dep. at 133). Indeed, plaintiffs themselves
point out “the potential that officers would need to use their
weapons,” and “how the Team would use force,” were “not
part of the Plan and were not briefed to the Team.” (Pls. Opp.
at 3–4). And for the reasons stated above, the planned box-in
maneuver does not constitute excessive force, so there can be
no “planner” liability with respect to that alleged use of force.
Plaintiffs’ policing practices expert might be correct that
the plan was “overly vague,” lacked “critical information,”
and “required unreasonably close contact between numerous
officers and the bank robbery suspect” (Doc. #197-1 at 12–
13), and thus “created a tactical scenario whereby the use
of deadly force against Erick Campbell was the foreseeable
and likely outcome.” (Id. at 11). But developing an “ill-
conceived” plan does not implicate an excessive force claim,
unless the operation “as planned, even if it had gone
perfectly,” constituted an excessive use of force. Terebesi v.
Torreso, 764 F.3d at 235 n.16.
Accordingly, to the extent plaintiffs assert a planner liability
claim against Marello and Menton, this claim must be
dismissed.
5. Failure to Intervene
No reasonable juror could conclude the non-firing local police
defendants—Barosa, Malone, Marello, Menton, McGee,
Walencik, and Wissner—had a realistic opportunity to
prevent or stop the shooting.
The undisputed facts show the shooting happened in a matter
of seconds and that no officer warned he was going to shoot
before opening fire. Nor is there a genuine dispute that when
the shooting began, Walencik and Wissner were not close
to the scene and the other non-firing defendants had taken
cover behind various police vehicles. Accordingly, the record
establishes these defendants could not have intervened to
stop the shooting. See Crockett v. City of New York, 2015
WL 5719737, at *7 (E.D.N.Y. Sept. 29, 2015) (“Based upon
the distances between the Other Defendant–Officers and [the
firing officer], and the fact that the two shots were fired in
rapid succession and without notice or warning, the Other
Defendant–Officers did not have a realistic opportunity to
intervene to prevent the shooting.”).
The Court is not persuaded the defendants “should have
known” the surveillance operation “would lead to the
inevitable use of deadly force” and thus were obligated
to “intervene” by objecting to the plan or removing their
subordinates from the operation. (Cf. Pls. Opp. at 31). As
explained above, the plan did not provide for the use of deadly
force, or even address the possibility that officers might need
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to use their weapons. Under these circumstances, the non-
firing police defendants did not “have reason to know” deadly
force would be used. Jean-Laurent v. Wilkerson, 461 F. App'x
at 21.
*13 Accordingly, plaintiffs’ failure to intervene claims
against Barosa, Malone, Marello, Menton, McGee, Walencik,
and Wissner must be dismissed.
6. Qualified Immunity
Braig and Cooper argue that, to the extent the record supports
an excessive force claim, such claim should be dismissed
because they are entitled to qualified immunity, as a matter
of law. 11
11 The Court need not consider whether the other
local police defendants are entitled to qualified
immunity, since plaintiffs’ claims against them fail
on the merits.
The Court disagrees.
Qualified immunity shields government officials whose
“conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The
scope of qualified immunity is broad, and protects “all but the
plainly incompetent or those who knowingly violate the law.”
Malley v. Briggs, 475 U.S. 335, 341 (1986). “A qualified
immunity defense is established if (a) the defendant's action
did not violate clearly established law, or (b) it was objectively
reasonable for the defendant to believe that his action did not
violate such law.” Salim v. Proulx, 93 F.3d 86, 89 (2d Cir.
1996). “Defendants bear the burden of establishing qualified
immunity.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015).
In the context of an excessive force claim, “the question for
the purposes of qualified immunity is whether a reasonable
officer could have believed that the use of force alleged was
objectively reasonable in light of the circumstances.” Lennon
v. Miller, 66 F.3d 416, 425 (2d Cir. 1995); see also O'Bert ex
rel. Estate of O'Bert v. Vargo, 331 F.3d 29, 37 (2d Cir. 2003)
(“in Fourth Amendment unreasonable force cases, unlike in
other cases, the qualified immunity inquiry is the same as the
inquiry on the merits.”).
Here, as explained above, there are genuine material issues
of fact as to whether Braig and Cooper's use of deadly force
during the surveillance operation was reasonable under the
circumstances.
Accordingly, summary judgment in favor of Braig and
Cooper on the basis of qualified immunity is inappropriate.
B. Deliberate Indifference to Serious Medical Needs
Claim
The local police defendants argue they are entitled to
summary judgment because the undisputed facts establish
they were not deliberately indifferent to Campbell's medical
needs.
The Court agrees.
1. Applicable Law
Deliberate indifference to serious medical needs claims
brought by pretrial detainees or arrestees against state actors
under Section 1983 are analyzed under the Fourteenth
Amendment's Due Process Clause. Logan v. City of
Schenectady, 2019 WL 3803631, at *4 (N.D.N.Y. Aug. 13,
2019) (citing Darnell v. Pineiro, 849 F.3d 17, 33 n.9 (2d Cir.
2017)).
To establish a claim for deliberate indifference to serious
medical needs, a plaintiff must satisfy a two-prong test,
comprising an objective prong and a mens rea prong. Darnell
v. Pineiro, 849 F.3d at 29. Namely, a plaintiff must establish
“the challenged conditions were sufficiently serious,” and
defendants “acted with at least deliberate indifference to the
challenged conditions.” Id.
*14 For the objective prong, a plaintiff must establish
the challenged conditions “either alone or in combination,
pose[d] an unreasonable risk of serious damage to his health.”
Darnell v. Pineiro, 849 F.3d at 30 (quoting Walker v. Schult,
717 F.3d 119, 125 (2d Cir. 2013)). “There is no ‘static test’
to determine whether a deprivation is sufficiently serious;
instead, ‘the conditions themselves must be evaluated in light
of contemporary standards of decency.’ ” Id. (quoting Blissett
v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995)).
To satisfy the mens rea prong, a pretrial detainee must
sufficiently show defendants “recklessly failed to act with
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reasonable care to mitigate the risk that the condition posed
to the pretrial detainee even though the [defendants] knew, or
should have known, that the condition posed an excessive risk
to health or safety.” Darnell v. Pineiro, 849 F.3d at 35. The
mens rea prong “is defined objectively” and “can be violated
when an official does not have subjective awareness that
the official's acts (or omissions) have subjected the pretrial
detainee to a substantial risk of harm.” Id.
“A delay in providing necessary medical care may in some
cases constitute deliberate indifference.” Maldonado v. Town
of Greenburgh, 460 F. Supp. 3d 382, 396 (S.D.N.Y. 2020).
And “delay in medical treatment must be interpreted in the
context of the seriousness of the medical need, deciding
whether the delay worsened the medical condition, and
considering the reason for the delay.” Id. at 396–97.
2. Application
No reasonable jury could conclude the local police defendants
deprived Campbell of constitutionally adequate medical
treatment.
The record establishes Menton called for an ambulance within
a minute after the shooting occurred, and then radioed again
to request a rush on the ambulance. (YPD Radio Log at
ECF 1). The Constitution requires no more. See Tatum v.
City & County of San Francisco, 441 F.3d 1090, 1099
(9th Cir. 2006) (“[D]ue process requires that police officers
seek the necessary medical attention for a detainee when
he or she has been injured while being apprehended by
either promptly summoning the necessary medical help or
by taking the injured detainee to a hospital.”); Rasmussen
v. City of New York, 766 F. Supp. 2d 399, 414 (E.D.N.Y.
2011) (“The obligation of the police to provide necessary
medical treatment upon request by a detainee or based upon
the obvious need for treatment is satisfied when the police
summon medical assistance; they have no duty to provide that
assistance themselves.”).
Indeed, the undisputed facts show Barosa and McGee
provided Campbell with medical treatment beyond what the
Constitution requires. Immediately after observing the gravity
of Campbell's condition, Barosa and McGee performed CPR
on him until emergency medical professionals arrived.
Plaintiffs contend the team should have “arrange[d] for an
ambulance or EMT to be on call.” (Pls. Opp. at 31–32). But
plaintiffs do not cite, and the Court is not aware of, any
cases suggesting the absence of such arrangements violates
the Fourteenth Amendment. And even if defendants’ failure
to have an ambulance or EMT on call violated Campbell's
constitutional rights, defendants would be entitled to qualified
immunity as the law does not clearly establish such a
requirement. See Salim v. Proulx, 93 F.3d at 89.
Accordingly, plaintiffs’ deliberate indifference to medical
needs claim must be dismissed.
IV. Monell Claim Against the City of Yonkers
*15 The City of Yonkers argues plaintiffs’ Monell claim
fails because they have not established that a municipal policy
or custom proximately caused Braig and Cooper's alleged use
of excessive force.
The Court agrees.
“For the purpose of Section 1983, a municipality is not
vicariously liable for the acts of its employees.” Green v.
City of New York, 465 F.3d 65, 80 (2d Cir. 2006). Instead,
a municipality is liable under Section 1983 only “when
execution of a [municipal] policy or custom, whether made
by its lawmakers or by those whose edicts or acts may fairly
be said to represent official policy, inflicts the [plaintiff's]
injury.” Monell v. Dep't of Soc. Servs., 436 U.S. at 694.
“Failure to train subordinate municipal employees will trigger
municipal liability ‘only where the failure to train amounts to
deliberate indifference to the rights’ of members of the public
with whom the employees will interact.” Green v. City of
New York, 465 F.3d at 80 (quoting City of Canton v. Harris,
489 U.S. 378, 388 (1989)). And “at the summary judgment
stage, plaintiffs must identify a specific deficiency in the city's
training program and establish that that deficiency is closely
related to the ultimate injury, such that it actually caused the
constitutional deprivation.” Id. at 81.
To support their Monell claim, plaintiffs cite deposition
testimony indicating Braig, Cooper, Menton, and Wissner
“recalled only some new definitions and a new diagram”
from their training in 2017 on YPD's then-new use of force
policy, “but nothing new in how the policy operated.” (Pls.
Opp. at 35). However, these officers also testified the new
policy provided more detailed information regarding the use
of force, and that officers were trained and tested on the
new policy. In addition, the officers testified their use-of-
force training included hypotheticals, written materials, and
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case studies, and that they received training in de-escalation
tactics. (E.g., Braig Dep. at 49–50; Cooper Dep. at 24–26, 33–
34; Menton Dep. at 25).
Plaintiffs provide no evidence as to “how better or different
training could have prevented the challenged conduct.”
Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 130 (2d
Cir. 2004). Nor do plaintiffs provide evidence of a pattern of
deadly force by YPD officers so pervasive as to place the City
on actual or constructive notice of an inadequacy in YPD's
training program. See Jones v. Town of East Haven, 691
F.3d 72, 81 (2d Cir. 2012) (“[I]solated acts of excessive force
by non-policymaking municipal employees are generally not
sufficient” to hold a municipality liable under Section 1983).
Finally, “plaintiffs have provided no evidence tending to rule
out those causes of the excessive force that would not support
municipal liability, such as the negligent administration of a
valid [training] program, or one or more officers’ negligent or
intentional disregard of their training.” Amnesty Am. v. Town
of W. Hartford, 361 F.3d at 130.
Plaintiffs have therefore failed to raise an inference that
YPD officers were improperly trained and that this deficient
training caused Braig and Cooper to use excessive force.
Accordingly, the Monell claim against the City of Yonkers
must be dismissed.
V. Assault and Battery Claims
*16 Plaintiffs assert assault and battery claims against the
local police defendants and the United States. 12
12 The Court previously dismissed plaintiffs’ assault
and battery claim as to the FBI defendants because
such a claim is not actionable under Bivens and
federal employees are immune from tort claims
arising out of conduct undertaken in the course of
their official duties. (MTD Decision at 24).
A. Local Police Defendants
The local police defendants argue plaintiffs’ assault and
battery claim must be dismissed because the undisputed facts
show they did not use excessive force.
The Court disagrees as to defendants Braig and Cooper, but
agrees as to the other local police defendants.
“Except for § 1983’s requirement that the tort be committed
under color of state law, the essential elements of excessive
force and state law assault and battery claims are substantially
identical.” Humphrey v. Landers, 344 F. App'x 686, 688 (2d
Cir. 2009) (summary order).
Here, because a reasonable jury could find Braig and Cooper
used excessive force against Campbell, plaintiffs’ assault and
battery claim against these defendants may also proceed.
But because plaintiffs’ excessive force claim against Barosa,
Malone, Marello, McGee, Menton, Walencik, and Wissner
fails, the assault and battery claim against these defendants
likewise fails.
B. United States
The United States argues plaintiffs’ FTCA claim for assault
and battery must be dismissed because the United States
cannot be held liable for the conduct of Braig and Cooper,
and because no reasonable juror could conclude the FBI
defendants used excessive force or had an opportunity to
prevent the shooting.
The Court disagrees that Kenney's use of deadly force was
reasonable as a matter of law. However, the Court agrees
summary judgment in favor of the United States is warranted
to the extent plaintiffs’ assault and battery claim is premised
on Braig's and Cooper's use of deadly force and the other FBI
defendants’ conduct.
1. Applicable Law
“The [FTCA] is a limited waiver of sovereign immunity,
making the Federal Government liable to the same extent
as a private party for certain torts of federal employees
acting within the scope of their employment.” United States
v. Orleans, 425 U.S. 807, 813 (1976). “Although assault
and battery claims against the federal government are
usually prohibited, the FTCA permits such claims where, as
here, federal law enforcement officers are alleged to have
committed assault or battery.” Cuoco v. U.S. Bureau of
Prisons, 2003 WL 22203727, at *4 (S.D.N.Y. Sept. 22, 2003)
(citing 28 U.S.C. § 2680(h)). Indeed, “[t]he FTCA explicitly
avoids waiving sovereign immunity for ‘any claim arising
out of assault, battery,’ and several other intentional torts.”
Leytman v. U.S. Dep't of Homeland Sec., 804 F. App'x 78,
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80 (2d Cir. 2020) (summary order) (quoting 28 U.S.C. §
2680(h)).
The FTCA defines federal employee to include individuals
“acting on behalf of a federal agency in an official capacity,
temporarily or permanently in the service of the United States,
whether with or without compensation.” 28 U.S.C. § 2671.
“For the purposes of the FTCA, the common law of torts
and agency defines the distinction between an independent
contractor (for whose torts the Government is not responsible)
and an employee, servant or agent (for whose torts the
Government is responsible).” O'Neil v. United States, 927 F.
Supp. 599, 604 (E.D.N.Y. 1996).
*17 Thus, an individual is deemed a federal employee under
the FTCA only if the “strict control test” is satisfied. In
other words, the United States is liable for an individual's
torts only if the federal government maintained control over
and “manage[d] the details of” the individual's work, or
“supervise[d] him in his daily duties.” Leone v. United States,
910 F.2d 46, 50 (2d Cir. 1990). It is not enough for the
federal government to have acted “generally as an overseer.”
Id. And “[t]he government's retention of overall authority”
over a law enforcement operation, “even its setting of specific
objectives, will not convert local actors to federal employees,
so long as the local actors ‘are largely free to select the
means’ of reaching those objectives.” Mick v. Brewer, 1995
WL 41679, at *2 (D. Kan. Jan. 26, 1995), rev'd on other
grounds, 76 F.3d 1127 (10th Cir. 1996) (quoting United States
v. Orleans, 425 U.S. 807, 816 (1976)).
2. FTCA Liability for Braig and
Cooper's Allegedly Tortious Conduct
The undisputed facts establish Braig and Cooper are not
federal employees for FTCA purposes.
Plaintiffs concede Braig and Cooper were not members of
the task force, employees of the FBI, paid by the FBI, or
subject to the FBI's disciplinary authority. (Pls. 56.1 Response
to Fed. Defs. ¶ 21). And although “the FBI was in command”
of the operation (Braig Dep. at 72), the FBI did “not manage
the details” of Braig and Cooper's work or “supervise [them]
in [their] daily duties.” Leone v. United States, 910 F.2d at
50. As plaintiffs point out, “[t]here were no details provided”
to Braig and Cooper regarding the plan for “converging on
or boxing-in the vehicle” or “the use of deadly force.” (Pls.
Opp. at 5) (citations omitted). Braig independently decided
to position his vehicle along the driver's side of the subject
vehicle, after “surveying the situation” and determining that
“the suspect [ ] almost had enough room to come out from
ramming” Kenney's and Malone's vehicles. (Braig Dep. at
123, 127). Likewise, no one in the FBI told Braig or Cooper
to fire their weapons at Campbell.
Because the strict control test has not been met, the United
States cannot be held liable for any torts allegedly committed
by Braig and Cooper.
3. FTCA Liability for Kenney's Conduct
There are triable issues of fact as to whether Kenney
committed assault and battery when acting within the scope
of his employment as an FBI agent.
As with the assault and battery claims against the local police
defendants, “[t]he same excessive force ... principles apply
to the FTCA cause of action for assault and battery against
the United States.” Scott v. City of White Plains, 2013 WL
1313774, at *8 (S.D.N.Y. Mar. 18, 2013). Thus, to prevail
on their FTCA claim, plaintiffs “must demonstrate that the
amount of force used was objectively unreasonable.” Id.
There are genuine disputes as to the facts and circumstances
confronting Kenney when he fired his weapon, and thus as to
whether his use of deadly force was objectively reasonable.
Lennox v. Miller, 968 F.3d at 155. For example, a reasonable
juror might credit McGee's testimony that Malone was no
longer standing by the passenger side of the subject vehicle
when the shooting began. Thus, whether Kenney reasonably,
although mistakenly, believed that Campbell had “opened fire
on TFO Malone” (Doc. #170 (“Fed. Defs. Mem.”) at 16), is
“the province of the jury.” Jones v. Treubig, 963 F.3d at 231.
Accordingly, plaintiffs’ FTCA assault and battery claim, to
the extent it is premised on Kenney's use of deadly force, may
proceed.
4. FTCA Liability for the Other FBI Defendants’ Conduct
No reasonable juror could conclude Conlon, Fisher, or
McKenna used excessive force against Campbell when acting
within the scope of their employment as FBI agents. It is
undisputed that these defendants did not fire their weapons
at Campbell. And to the extent plaintiffs’ assault and battery
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2023 WL 4867459
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claim against these defendants is based on planner liability,
failure to intervene, or the box-in maneuver, this claim fails
for the reasons set forth in Part III.A above.
*18 Accordingly, plaintiffs’ FTCA assault and battery
claim, insofar as it is premised on the conduct of Conlon,
Fisher, and McKenna, must be dismissed.
VI. Loss of Love, Support, and Familial Relationships
Claims
The federal defendants argue plaintiffs’ twentieth cause of
action—comprising Eric Campbell's claim for the loss of his
father's “love, support, familial relationships, and parental
guidance” (SAC ¶ 277), and Aida and Robert Campbell's
claims for the loss of their son's “love, support, and familial
relationships” (id. ¶ 276)—must be dismissed because such
losses are not compensable under New York law.
The Court agrees.
In New York, the spouse of an injured or deceased
individual may recover for the “loss of consortium,” which
encompasses the “loss of support or services,” as well as
“love, companionship, affection, society, sexual relations,
solace and more.” Rangolan v. County of Nassau, 370 F.3d
239, 248 (2d Cir. 2004) (quoting Millington v. Se. Elevator
Co., 22 N.Y.2d 498, 504-05 (1968)). But New York courts
do not permit a child to recover for “the loss of parental
care, companionship, guidance, love and training,” or a
parent to recover for the loss of their child's “affection,
love and companionship.” De Angelis v. Lutheran Med. Ctr.,
84 A.D.2d 17, 26–27 (2d Dept. 1981), aff'd De Angelis v.
Lutheran Med. Ctr., 58 N.Y.2d 1053, 1055 (1983); see also
Devito v. Opatich, 215 A.D.2d 714, 715 (2d Dep't 1995)
(plaintiffs’ “loss of their minor daughter's society ... is not
compensable”).
Accordingly, plaintiffs’ claims for loss of love, support,
familial relationships, and parental guidance must be
dismissed.
VII. Wrongful Death and Conscious Pain and Suffering
Claims
Plaintiffs’ claims for wrongful death and conscious pain and
suffering are derivative of their claims for excessive force and
assault and battery. See Chamberlain v. City of White Plains,
986 F. Supp. 2d 363, 398–99 (citing N.Y. Est. Powers & Trusts
Law §§ 5–4.1, 11–3.2(b)).
Because there are genuine issues of material fact as to whether
the use of deadly force was objectively reasonable, for the
reasons stated above, the Court declines to dismiss plaintiffs’
wrongful death and conscious pain and suffering claims as
against Braig, Cooper, and the United States.
However, because plaintiffs’ excessive force and assault
and battery claims fail as against Barosa, Malone, Marello,
McGee, Menton, Walencik, and Wissner, the wrongful
death and conscious pain and suffering claims against these
defendants likewise fail. See Chamberlain v. City of White
Plains, 986 F. Supp. 2d at 399 (“Because [the defendant]
committed no underlying wrong against [the decedent], the
conscious pain and suffering and wrongful death claims also
fail as a matter of law.”).
VIII. Respondeat Superior Claims
Plaintiffs bring respondeat superior claims against the City
of Yonkers premised on the allegedly tortious conduct of the
YPD officers who participated in the operation, defendants
Braig, Cooper, Marello, Menton, Walencik, and Wissner.
Unlike Section 1983, New York law permits plaintiffs to
hold municipalities vicariously liable for torts committed by
municipal employees while acting within the scope of their
employment. See Triolo v. Nassau Cnty., 24 F.4th 98, 110
(2d Cir. 2022); Jones v. State of New York, 33 N.Y.2d 275,
279-80 (1973) (“A long line of cases has held the State or
municipalities liable for the actions of their police officers in
the line of duty.”).
*19 Because plaintiffs have “not demonstrated any basis
for liability on the part of” Marello, Menton, Walencik, or
Wissner, they “cannot establish respondeat superior liability
for those claims.” Yusuf v. City of New York, 2022 WL
393882, at *11 (E.D.N.Y. Feb. 9, 2022).
However, for the reasons stated above, a reasonable jury could
find Braig's and Cooper's use of deadly force was excessive,
and thus constituted assault and battery under New York law.
Accordingly, plaintiffs’ claim against the City of Yonkers for
assault and battery, and the derivative claims for wrongful
death and conscious pain and suffering, may proceed.
CONCLUSION
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The Tarrytown defendants’ motion for summary judgment
(19 Civ. 2117 Doc. #174) is GRANTED.
Defendant Malone's motion for summary judgment (19 Civ.
2117 Doc. #186) is GRANTED.
The federal defendants’ motion for summary judgment (19
Civ. 2117 Doc. #169 and 19 Civ. 9444 Doc. #89) is DENIED
as to plaintiffs’ claims against the United States for assault
and battery, wrongful death, and conscious pain and suffering,
solely to the extent such claims are premised on Kenney's use
of deadly force. The federal defendants’ motion is otherwise
GRANTED.
The Yonkers defendants’ motion for summary judgment
(19 Civ. 2117 Doc. #178) is DENIED as to (i) plaintiffs’
respondeat superior claim against the City of Yonkers for
assault and battery, wrongful death, and conscious pain and
suffering, and (ii) plaintiffs’ claims against Braig and Cooper
for excessive force, assault and battery, wrongful death, and
conscious pain and suffering, solely to the extent such claims
are premised on Braig's and Cooper's use of deadly force. The
Yonkers defendants’ motion is otherwise GRANTED.
The Clerk is instructed to terminate the following defendants:
Police Officer Adam Walencik, Detective Thomas Marello,
Sergeant Mark Wissner, Detective Brian Menton, Detective
Terence Malone, Sergeant Joseph Barosa, Detective Michael
McGee, Agent Brendan Kenney, Agent Andrew Fisher, Agent
Daniel Conlon, and Agent Daniel McKenna.
Counsel for the remaining parties shall attend a case
management conference on September 12, 2023, at 11:00
a.m., at which time the Court will set a trial date and
a schedule for pretrial submissions. Counsel shall also be
prepared to discuss what efforts they have made and will
continue to make to settle this case.
All Citations
Not Reported in Fed. Supp., 2023 WL 4867459
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 65 of 175

Campbell v. City of Yonkers
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (4)
Title PDF Court Date Type
1. Complaint
Robert CAMPBELL, as the Administrator of the Estate
of Erick Campbell, Robert Campbell, individually, Aida
Campbell, and Eric Campbell, Plaintiff, v. CITY OF
YONKERS and Police Officers John Doe 1-25, fictitious
names used to identify presently unknown police officers,
individually and in their official capacities, Defendants.
2019 WL 13537043
— S.D.N.Y. Mar. 07, 2019 Pleading
2. (Deposition of Dr. Michael D. Lyman, B.S., M.S.,
Ph.D.)
Eric CAMPBELL, as the Administrator d.b.n. of the
Estate of Erick Campbell, Eric Campbell, Individually,
Michael Campbell, as the Administrator of the Estate
of Robert Campbell, and Aida Campbell, Individually,
Plaintiffs, v. CITY OF YONKERS, Police Officer Timothy
Cooper, Police Officer Thomas Braig, Police Officer Adam
Walencik, Detective Thomas Marello, Sergeant Mark
Wissner, Detective Brian Menton, Detective Terence
Malone, Sergent Joseph Barosa, Detective Michael
Mcgee, Agent Brendan Kenney, Agent Andrew Fisher,
Agent Daniel Conlon, and Agent Daniel Mckenna,
Defendants; Eric Campbell, as the Administrator d.b.n. of
the Estate of Erick Campbell, Eric Campbell, Individually,
Michael Campbell, as the Administrator of the Estate
of Robert Campbell, and Aida Campbell, Individually,
Plaintiffs, v. United States of America, Defendant.
2022 WL 20016929
— S.D.N.Y. June 01, 2022 Expert
Materials
3. (Report or Affidavit of Dr. Michael D. Lyman, B.S.,
M.S., Ph.D.)
Robert CAMPBELL, et al., v. UNITED STATES OF
AMERICA.
2022 WL 20032614
— S.D.N.Y. Jan. 03, 2022 Expert
Materials
4. Docket 7:19-CV-09444
Campbell et al v. United States Of America
— S.D.N.Y. Oct. 11, 2019 Docket
Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 66 of 175

Campbell v. City of Yonkers
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (1)
1. Campbell v. City of Yonkers
2023 WL 4867459 , S.D.N.Y. , July 31, 2023
Related References (1)
2. Campbell v. City of Yonkers
2020 WL 5548784 , S.D.N.Y. , Sep. 16, 2020
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Cole v. Smrtic, Not Reported in Fed. Supp. (2024)
2024 WL 4870495
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2024 WL 4870495
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Matthew H. COLE, Plaintiff,
v.
Honorable Michael W. SMRTIC, et al. Defendants.
No. 1:24-CV-00847 (MAD/CFH)
|
Signed November 21, 2024
Attorneys and Law Firms
MATTHEW H. COLE, 271 Market Street, Amsterdam, New
York 12010, Plaintiff pro se.
REPORT-RECOMMENDATION & ORDER
CHRISTIAN F. HUMMEL, United States Magistrate Judge
I. In Forma Pauperis
*1 Plaintiff pro se Matthew H. Cole (“plaintiff”)
commenced this action (No. 1:24-CV-00623) on May 6,
2024, by filing a complaint. See Dkt. No. 1 (“Compl.”).
On September 26, 2024, plaintiff submitted what the Court
construes to be a supplement to the complaint. 1 See Dkt. No.
7. In lieu of paying this Court's filing fees, he submitted an
application for leave to proceed in forma pauperis (“IFP”).
See Dkt. No. 2. The undersigned has reviewed plaintiff's IFP
application and determines that he financially qualifies to
proceed IFP. 2 Thus, the Court proceeds to its review of the
complaint pursuant to 28 U.S.C. § 1915. Plaintiff has also
submitted for the Court's review a Pro Se Application for
Permission to File Electronically and a Motion to Appoint
Counsel. See Dkt. Nos. 4, 5.
1 The submission includes a letter addressed to
District Judge D'Agostino, titled, “Requirements
for Cases Removed From State Court,” Dkt. No.
7; a receipt from Montgomery County Clerk dated
December 8, 2022; and a “Notice of Claim” with
the caption of Cole v. County of Montgomery,
dated December 7, 2022. See Dkt. No. 7. The
undersigned has reviewed this submission in
connection with the initial review of plaintiff's
complaint. See Sira v. Morton, 380 F. 3d 57, 67 (2d
Cir. 2004).
2 Plaintiff is advised that, although he has been
granted IFP status, he is still required to pay all fees
and costs he may incur in this action, including,
but not limited to, copying fees, transcript fees, and
witness fees.
II. Initial Review
A. Legal Standards
Section 1915 of Title 28 of the United States Code directs
that, when a plaintiff seeks to proceed IFP, “the court shall
dismiss the case at any time if the court determines that ... the
action or appeal (i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2)(B). Thus, it is a court's responsibility to
determine that a plaintiff may properly maintain his complaint
before permitting him to proceed with his action.
Where, as here, the plaintiff proceeds pro se, “the court
must construe his submissions liberally and interpret them
to raise the strongest arguments that they suggest.” Kirkland
v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014)
(per curiam) (internal quotation marks omitted); see also
Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). As
the Second Circuit stated,
There are many cases in which we have said that a pro
se litigant is entitled to “special solicitude,” that a pro se
litigant's submissions must be construed “liberally,” and
that such submissions must be read to raise the strongest
arguments that they “suggest[.]” At the same time, our
cases have also indicated that we cannot read into pro se
submissions claims that are not “consistent” with the pro
se litigant's allegations, or arguments that the submissions
themselves do not “suggest,” that we should not “excuse
frivolous or vexatious filings by pro se litigants,” and that
pro se status “does not exempt a party from compliance
with relevant rules of procedural and substantive law[.]”
*2 Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
477 (2d Cir. 2006) (citations and footnote omitted); see also
Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92
(2d Cir. 2008).
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“The [Second Circuit]’s ‘special solicitude’ for pro se
pleadings has its limits, because pro se pleadings still must
comply with ... the Federal Rules of Civil Procedure [(‘Fed.
R. Civ. P.’)].” Kastner v. Tri State Eye, No. 19-CV-10668
(CM), 2019 WL 6841952, at *2 (S.D.N.Y. Dec. 13, 2019)
(quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)).
Pleading guidelines are provided in the Federal Rules of
Civil Procedure. Specifically, Rule 8 requires the pleading to
include:
(1) a short and plain statement of the grounds for the court's
jurisdiction ...;
(2) a short and plain statement of the claim showing that
the pleader is entitled to relief; and
(3) a demand for the relief sought...
FED. R. CIV. P. 8(a). Although “[n]o technical form is
required,” the Federal Rules make clear that each allegation
contained in the pleading “must be simple, concise, and
direct.” Id. at 8(d). “The purpose ... is to give fair notice
of the claim being asserted so as to permit the adverse
party the opportunity to file a responsive answer, prepare an
adequate defense and determine whether the doctrine of res
judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54,
54 (N.D.N.Y. 1999) (internal quotation marks and citations
omitted). Allegations that “are so vague as to fail to give the
defendants adequate notice of the claims against them” are
subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104
(2d Cir. 2009) (summary order).
Further, Fed. R. Civ. P. 10 provides:
[a] party must state its claims or
defenses in numbered paragraphs,
each limited as far as practicable to
a single set of circumstances. A later
pleading may refer by number to
a paragraph in an earlier pleading.
If doing so would promote clarity,
each claim founded on a separate
transaction or occurrence – and each
defense other than a denial – must be
stated in a separate count or defense.
FED. R. CIV. P. 10(b). This serves the purpose of “provid[ing]
an easy mode of identification for referring to a particular
paragraph in a prior pleading[.]” Flores, 189 F.R.D. at 54
(internal quotation marks and citations omitted). A complaint
that fails to comply with the pleading requirements “presents
far too a heavy burden in terms of a defendant's duty to
shape a comprehensive defense and provides no meaningful
basis for the Court to assess the sufficiency of their claims.”
Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As
the Second Circuit has held, “[w]hen a complaint does not
comply with the requirement that it be short and plain, the
court has the power, on its own initiative ... to dismiss the
complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
1988) (citations omitted). However, “[d]ismissal ... is usually
reserved for those cases in which the complaint is so confused,
ambiguous, vague, or otherwise unintelligible that its true
substance, if any, is well disguised.” Id. (citations omitted).
*3 This Court also has an overarching obligation to
determine that a claim is not legally frivolous before
permitting a pro se plaintiff's complaint to proceed. See, e.g.,
Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d
362, 363 (2d Cir. 2000). “Legal frivolity ... occurs where
‘the claim is based on an indisputably meritless legal theory
[such as] when either the claim lacks an arguable basis in
law, or a dispositive defense clearly exists on the face of the
complaint.’ ” Aguilar v. United States, Nos. 99-MC-0304, 99-
MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999) 3
(quoting Livingston v. Adirondack Beverage Co., 141 F.3d
434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490
U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal
theory ... or factual contentions lack an arguable basis.”).
3 Any unpublished cases cited within this Report-
Recommendation & Order have been provided to
plaintiff.
B. Complaint
Plaintiff's civil cover sheet indicates that he seeks to bring this
action pursuant to “Title U.S.C. 18 Section 241, Conspiracy
Against Rights & Title U.S.C. 18 Section 242 Deprivation
of rights Under Color of Law.” Dkt. No. 1-1 at 1. The civil
cover sheet further provides that his cause of action involves,
“Violation of Due process, Speedy Trial Rights, Ineffective
Assistance of Counsel. I feel I am being targeted for being
black and gay.” Id.
Plaintiff's form complaint checks the box indicating that
he seeks to bring this case pursuant to 42 U.S.C. § 1983.
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See Compl. at 3. In response to the question in the form
complaint asking in “what federal constitutional or statutory
right(s) do you claim is/are being violated by state or local
officials,” plaintiff responds, “Due Process, 30.30 Speedy
Trial Violation, Ineffective Assistance of counsel.” 4 Id. In
response to a question asking him to explain “how each
defendant acted under color of state or local law,” plaintiff
states “Each judge deliberately denied me due process, and
refused to look into the paperwork to see that i was improperly
denied my speedy trial rights. It was a tean [sic] effort.
The ADA/Special Prosecutor withheld potential exculpatory
material which was usd [sic] against me. All mentioned
actions were done and upheld even after I showed federal law
with supportive case law as a pro se litigant.” Id.
4 Although plaintiff generally references ineffective
assistance of counsel, Compl. at 4, he does not
name any attorney who may have represented
him. Any claims against the prosecutor would
not be considered ineffective assistance of counsel
because Mr. Maxwell, as the prosecutor, was not
plaintiff's attorney.
Plaintiff provides that his “case is still on appeakl [sic] in
Appellate Court Third Department. I feel they are guilty,
or part of what I call a scandal. I went to them from the
very start with a complaint to the grievance committee,
where they denied any wrongdoing. It must be ok to violate
Constitutional rights there. This is from March 2019 to
present” Id.
In response to a question that asks plaintiff to state the facts
underlying his claims, plaintiff states, “Please see attached
Article 78 that is attached. It was dismissed being in the wrong
court, but is on point.” Id. at 4. Plaintiff did not provide the
Court with any such attachment and has not submitted any
Article 78 materials. See Compl., Dkt. No. 7.
In response to the form complaint's question asking about
any injuries suffered as a result of the conduct he complains
of, plaintiff states, “Sever [sic] depression over 20 years,
irreperable [sic] harm, defamation of charcter [sic] by
arguments not legally allowed to give. Loss of income,
inability to gain and keep employment, mental trauma,
instilled disbelief in justice in the legal system, familial
traumam [sic] due to my legal battles.” Id. Indicating the relief
sought, plaintiff states
*4 Petitioner seeks reinstatement
of driving priveldges [sic], and 10
million dollars for damages caused by
conflict of interest, deliberate violation
of Due Process, Speedy Trial rights,
Ineffective assistance of counsel,
malice, Brady Violation, Petitioner
claims deliberate misconduct and
malice in Montgomery County Court,
the Saratoga Disrict Attorney's Office,
and the Supreme Court Appellate
Division Third department. ** This is
subject to change if an attorney agrees
to represent.
Compl. at 5. Although he typed his name, plaintiff does not
sign the complaint where a signature is indicated. See id. at 8.
Plaintiff provides in his supplement that he “removed this
action to district court asserting jurisdiction pursuant to 42
U.S.C. 1983, and § 1441.” Dkt. No. 7. at 1. Plaintiff states
that he removed this case from Montgomery County Supreme
Court. See id. He states that he seeks or sought the removal
because he was told he was “not guarantee counsel” at the
state, but that “[i]n Federal Court, there is that option, pending
qualification, and I am told, if a lawyer agrees to take it, then
I really have something. I am in dire need of counsel.” Id.
Plaintiff states, “[t]he ineffective assistance of counsel and
The County Court are a matter already mentioned in the
appeal.” Dkt. No. 7 at 2. Plaintiff states that “[t]o get my
conviction, I allege judicial and prosecutorial misconduct,
and ineffective assistance of counsel × 4. That is why I am
pro se. I had to protect myself when appointed counsel did
not. It also went through a couple judges which is why they
are mentioned in the preliminary complaint/paperwork, and
why I mention bias.” Id. Plaintiff states he can “prove each
thing I saw not just with my words, but with transcripts 5 from
the County Court, and the Adult Drug Court.” Id. Plaintiff
refers to being drug free for four and a half years and having
academic success in college. Id. at 3. He states that he wishes
this Court to hear his case because he believes he will not
“see bias” in federal court “like I saw in others.” Id. Plaintiff
states that he “also put in a Notice of Removal in the Federal
Court for those criminal charges that led to the Complaint. I
do not trust the assigned appellate attorney. That case too has
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Constitutional violations. That case number is 1:24-CR-301
(AMN).” Id.
5 Plaintiff did not provide any transcripts.
C. Discussion 6
6 As a courtesy, the Court has provided plaintiff with
copies of any unpublished cases cited within this
Report-Recommendation & Order.
1. Rule 8
As a threshold issue, plaintiff's complaint fails to meet the
requirements of Rule 8. See FED. R. CIV. P. 8(a)(2). He
does not provide a short and plain statement of the claim
demonstrating why he is entitled to relief. Although he
makes general references to both an Article 78 proceeding
and a criminal proceeding and unexplained references to
“Due Process, 30.30 Speedy Trial Violation, Ineffective of
Counsel,” he does not provide factual support or context.
Thus, his complaint does not provide “fair notice” to
defendants of the claims against them. See FED. R. CIV. P.
8(a)(2).
2. Heck v. Humphrey
However, there are several substantive concerns that further
lead the undersigned to recommend dismissal. First, in
referencing to “Due Process, 30.30 Speedy Trial Violation,
Ineffective of Counsel” and explicitly referencing a criminal
conviction, it is clear that plaintiff is attempting to seek
some kind of review of a criminal proceeding or conviction.
See Compl. at 3. Plaintiff also accuses all named judges
of denying him due process and contends that an unnamed
“ADA/Special Prosecutor withheld potential exculpatory
material which was usd [sic] against me.” Compl. at 4.
Plaintiff also references a conviction. See Dkt. No. 7 at 4.
Such claims would be barred by Heck v. Humphrey.
*5 As this Court, citing the District of Connecticut, has set
forth:
In Heck, the Supreme Court held that in order for a
plaintiff “to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction
or sentence invalid, a § 1983 plaintiff must prove that
the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by
a state tribunal authorized to make such determination, or
called into question by a federal court's issuance of a writ
of habeas corpus.” Id. at 486-87. The court further held
that “[a] claim for damages bearing that relationship to
a conviction or sentence that has not been so invalidated
is not cognizable under § 1983.” Id. at 487 (emphasis in
original).
[ ]
Thus, under Heck and its progeny, if a conviction has not
been invalidated previously, a Ҥ 1983 action is barred ...
no matter the target of the prisoner's suit ... if success in
that action would necessarily demonstrate the invalidity
of confinement or its duration.” Wilkinson v. Dotson, 544
U.S. 74, 81-82 (2005) (emphasis in original).
Ali v. Shattuck, No. 8:24-CV-0128 (DNH/CFH), 2024
WL 2747619, at *3 (N.D.N.Y. May 29, 2024), report-
recommendation adopted sub nom. Ali v. Dow, No. 8:24-
CV-128, 2024 WL 3460745 (N.D.N.Y. July 18, 2024)
(quoting Zografidis v. Richards, No. 3:22-CV-00631 (AVC),
2022 WL 21756775, at *7 (D. Conn. July 6, 2022), report and
recommendation adopted (Oct. 7, 2022), aff'd, No. 22-3197,
2023 WL 7538211 (2d Cir. Nov. 14, 2023)).
Plaintiff has failed to demonstrate that any criminal charge(s),
conviction, or sentence has been “reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into
question by a federal court's issuance of a writ of habeas
corpus.” Zografidis, 2022 WL 21756775, at *7. Although
plaintiff's complaint wants for detail, the undersigned can
clearly determine that plaintiff seeks review of his criminal
proceedings, conviction, and/or sentence. The claims plaintiff
seeks to pursue relate to allegations that he was denied
due process, denied speedy trial rights, and experienced
ineffective assistance of counsel. Accordingly, plaintiff's
claims are barred by Heck unless and until he can demonstrate
favorable termination of his criminal conviction. 7
7 The undersigned recognizes that claims that are
determined to be barred by Heck are dismissed
without prejudice. However, the undersigned has
recommended dismissal with prejudice because
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plaintiff has only named defendants who are
immune from relief. Accordingly, the undersigned
is recommending dismissal of the claims based on
these immunities, rather than a Heck dismissal. The
undersigned has included the Heck review for sake
of completeness.
3. Immunities
Plaintiff names as defendants several defendants who are
immune from suit. Insofar as plaintiff names Hon. Michael
W. Smrtic, Interim Montgomery County Judge and Tatiana N.
Coffinger, “County/Family/Surrogate's Court Judge” 8 such
claims would be barred by judicial immunity.
8 Although plaintiff provides no facts regarding
any family court proceedings, that he named a
family court judge and makes general reference
to that he seeks review over actions taken by
a family court judge. Even if plaintiff were to
amend his complaint to provide facts about any
possible family court proceedings and details
about any alleged violations of his rights that he
believes he faced in that Court, if plaintiff seeks
this Court's review of an order of the family
court, such review would be barred by Rooker-
Feldman, and if plaintiff seeks this Court's review
or intervention of a currently pending/ongoing
Family Court proceeding, such review would be
barred by Younger. See Porter v. Nasci, No. 5:24-
CV-0033 (GTS/TWD), 2024 WL 1142144, at
*4 (N.D.N.Y. Mar. 15, 2024) (citations omitted),
report and recommendation adopted, 2024 WL
3158645 (N.D.N.Y. June 25, 2024) (“Under the
Rooker-Feldman doctrine, a federal district court
lacks authority to review a final state court order
or judgment where a litigant seeks relief that
invites the federal district court to reject or overturn
such a final state court order or judgment.”); see
also Diamond “D” Constr. Corp. v. McGowan,
282 F.3d 191, 198 (2d Cir. 2002) (“[F]ederal
courts [must] abstain from taking jurisdiction over
federal constitutional claims that involve or call
into question ongoing state proceedings.”).
*6 “With minor exceptions, judges are entitled to absolute
immunity for actions relating to the exercise of their judicial
functions.” Zavalidroga v. Girouard, No. 6:17-CV-682 (BKS/
ATB), 2017 WL 8777370, at *8 (N.D.N.Y. July 7, 2017)
(citing Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (per
curiam)). “Judicial immunity has been created for the public
interest in having judges who are ‘at liberty to exercise
their functions with independence and without fear of
consequences.’ ” Id. (quoting Huminski v. Corsones, 396
F.3d 53, 74 (2d Cir. 2004)). “Judicial immunity applies even
when the judge is accused of acting maliciously or corruptly.”
Id. (citation omitted); see Positano v. New York, No. 12-
CV-2288 (ADS/AKT), 2013 WL 880329, at *4 (E.D.N.Y.
Mar. 7, 2013) (explaining that the plaintiff may not bring
action against a judge for actions taken in his judicial capacity,
even when the actions violated the ADA).
“Judicial immunity is immunity from suit, not just immunity
from the assessment of damages.” Zavalidroga, 2017 WL
8777370, at *8 (citing Mitchell v. Forsyth, 472 U.S. 511,
526 (1985)). “The only two circumstances in which judicial
immunity does not apply is when he or she takes action
‘outside’ his or her judicial capacity and when the judge takes
action that, although judicial in nature, is taken ‘in absence
of jurisdiction.’ ” Id. (quoting Mireles, 502 U.S. at 11-12).
“In determining whether or not a judge acted in the clear
absence of all jurisdiction, the judge's jurisdiction is ‘to be
construed broadly, and the asserted immunity will only be
overcome when the judge clearly lacks jurisdiction over the
subject matter.’ ” Pacherille v. Burns, 30 F. Supp. 3d 159,
163 (N.D.N.Y. 2014) (quoting Ceparano v. Southampton Just.
Ct., 404 F. App'x 537, 539 (2d Cir. 2011) (summary order)).
“Whether a judge acted in a judicial capacity depends on
the nature of the act [complained of] itself, i.e., whether it
is a function normally performed by a judge, and [on] the
expectations of the parties, i.e., whether they dealt with the
judge in his judicial capacity.” Ceparano, 404 F. App'x at 539
(internal quotation marks and citation omitted). “Further, if
the judge is performing in his judicial capacity,” he “ ‘will not
be deprived of immunity because the action he took was in
error, was done maliciously, or was in excess of his authority;
rather, he will be subject to liability only when he has acted
in the clear absence of all jurisdiction.’ ” Ceparano, 404 F.
App'x at 539 (quoting Stump v. Sparkman, 435 U.S. 349, 362
(1978)). “Judges are not, however, absolutely ‘immune from
liability for nonjudicial actions, i.e., actions not taken in the
judge's judicial capacity.’ ” Bliven v. Hunt, 579 F.3d 204, 209
(2d Cir. 2009) (quoting Mireles, 502 U.S. at 11).
Thus, as plaintiff names the judicial defendants in relation to
actions or omissions that they took in their roles as judges,
their actions are protected by absolute judicial immunity.
To the extent plaintiff names Hon. Felix Catena, “Retired
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Administrative Law Judge,” Judge Catena is also protected
by absolute judicial immunity as a judge's retirement, “does
not impact [his or] her immunity for acts taken in [his or]
her official capacity before her retirement.” McCray v. Lewis,
No. 16-CV-3855 (WFK/VMS), 2016 WL 4579081, at *2
(E.D.N.Y. Aug. 31, 2016). To the extent plaintiff may seek to
sue the judges their official capacities, the suit is barred by the
Eleventh Amendment. See Pacherille v. Burns, 30 F. Supp.
3d 159, 163 n.5 (N.D.N.Y. 2014) (“The Eleventh Amendment
shields judges from suit to the extent that they are sued in their
official capacities.”).
*7 In addition, plaintiff also references, exclusively in his
“relief” section of the form complaint, “the Supreme Court
Appellate Division, Third Department” when stating that he
experienced “deliberate misconduct and malice.” Compl. at
7. He does not name this Court as a defendant anywhere in
the complaint. However, even if plaintiff were to have named
the Appellate Division, Third Department as a defendant,
such defendant would also need to be dismissed based on
Eleventh Amendment immunity as the Appellate Division “is
merely an agency or arm of New York State.” Benyi v. New
York, No. 3:20-CV-1463 (DNH/ML), 2021 WL 1406649, at
*5 (N.D.N.Y. Mar. 23, 2021), report and recommendation
adopted, No. 3:20-CV-1463, 2021 WL 1404555 (N.D.N.Y.
Apr. 13, 2021) (citation omitted). Accordingly, to the extent
a liberal reading of the complaint may suggest that plaintiff
seeks to name the Appellate Division as a defendant, such
claims are barred by Eleventh Amendment immunity. See
Compl.
Finally, insofar as plaintiff seeks to sue Prosecutor Samuel V.
Maxwell, Esq., Assistant District Attorney, in addition to the
Heck issues noted above, he would be protected by absolute
prosecutorial immunity. As this Court has recently reiterated,
Prosecutors enjoy “absolute immunity from § 1983 liability
for those prosecutorial activities ‘intimately associated
with the judicial phase of the criminal process.’ ” Barr v.
Abrams, 810 F.2d 358, 360-61 (2d Cir. 1987) (citing Imbler
v. Pachtman, 424 U.S. 409, 430 (1976)). This immunity
encompasses “virtually all acts, regardless of motivation,
associated with [the prosecutor's] function as an advocate.”
Hill v. City of New York, 45 F.3d 653, 661 (2d Cir.
1995) (internal quotations and citation omitted). Absolute
immunity applies when a prosecutor's conduct, acting as an
advocate during the judicial phase of the criminal process,
“involves the exercise of discretion.” Flagler v. Trainor,
663 F.3d 543, 547 (2d Cir. 2011) (citing Kalina v. Fletcher,
522 U.S. 118, 127 (1997)).
Accordingly, absolute immunity extends to functions such
as “deciding whether to bring charges and presenting a case
to a grand jury or a court, along with the tasks generally
considered adjunct to those functions, such as witness
preparation, witness selection, and issuing subpoenas.”
Simon v. City of New York, 727 F.3d 167, 171 (2d
Cir. 2013) (citing Imbler, 424 U.S. at 431 n.33); see
also Flagler, 663 F.3d at 547 (explaining, “the Supreme
Court has found prosecutors absolutely immune from
suit for alleged misconduct during a probable cause
hearing, in initiating a prosecution, and in presenting
the State's case ... [but] withheld absolute immunity for
conduct unrelated to advocacy, such as giving legal advice,
holding a press conference, or acting as a complaining
witness.”). “[O]nce a court determines that challenged
conduct involves a function covered by absolute immunity,
the actor is shielded from liability for damages regardless
of the wrongfulness of his motive or the degree of injury
caused ....” Bernard v. Cnty. of Suffolk, 356 F.3d 495, 503
(2d Cir. 2004) (citing Cleavinger v. Saxner, 474 U.S. 193,
199-200 (1985)).
Williams v. Atkins, No. 5:24-CV-0573 (DNH/TWD), 2024
WL 3649849, at *5 (N.D.N.Y. June 11, 2024), report
and recommendation adopted, No. 5:24-CV-573, 2024 WL
3548760 (N.D.N.Y. July 26, 2024).
Plaintiff appears to suggest that Mr. Maxwell “withheld
potentially exculpatory material” that was used against
him. Compl. at 4. Beyond the Heck barriers already
discussed, even if plaintiff could amend to provide greater
detail, absolute immunity would extent to even this alleged
misconduct as such allegations clearly fall within the scope of
prosecutorial immunity. Accordingly, it is recommended that
any claims against ADA Samuel V. Maxwell be dismissed
for absolute prosecutorial immunity. “Furthermore, because
the District Attorney's prosecutorial immunity is substantive
and not something that can be corrected by a better pleading,
I recommend that the dismissal be with prejudice.” Phillips
v. New York, No. 5:13-CV-927, 2013 WL 5703629, at *5
(N.D.N.Y. Oct. 17, 2013) (quoting Cuoco v. Moritsugu, 222
F.3d 99, 223 (2d Cir. 2000)). 9
9 Plaintiff appears to characterize his submissions as
a purported removal to federal court or suggests
that he seeks to remove his case from Montgomery
County Court to this Court. See Dkt. No. 7
(citing 28 U.S.C. § 1441). However, in addition
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to the infirmities mentioned above, plaintiff has
not demonstrated that any proceeding related to
this complaint has been properly removed to, or
is subject to removal to, this Court. See, e.g.,
28 U.S.C. § 1446. Indeed, plaintiff's submissions
appear to indicate that plaintiff is the plaintiff in the
County Court action. See id. § 1446(a).
III. Conclusion
*8 It is ORDERED, that plaintiff's in forma pauperis
application (dkt. no. 2) be GRANTED; and it is
RECOMMENDED, that plaintiff's section 1983 claims
against Honorable Michael W. Smrtic; Tatiana N. Coffinger,
County/Family/Surrogate's Court Judge; and Felix Catena,
Retired Administrative Law Judge (Dkt. Nos. 1, 7) be
DISMISSED WITH PREJUDICE as follows: (1) claims
brought against them in their personal/individual capacities
for judicial immunity, and (2) claims brought against them in
their official capacities for Eleventh Amendment immunity;
and it is further
RECOMMENDED, that plaintiff's section 1983 claims
against Assistant District Attorney Samuel V. Maxwell (Dkt.
Nos. 1, 7) be DISMISSED WITH PREJUDICE due to
absolute prosecutorial immunity; and it is further
RECOMMENDED, that, to the extent a liberal reading
of the complaint may suggest that plaintiff seeks to name
the Appellate Division, Third Department, as a defendant
(Dkt. Nos. 1, 7), such claims be DISMISSED WITH
PREJUDICE as barred by Eleventh Amendment immunity,
and it is
RECOMMENDED, that plaintiff's pro se motion for
permission to file electronically (dkt. no. 4) and motion to
appoint counsel 10 (dkt. no. 5) be DISMISSED AS MOOT
based on the above recommendations, and it is
10 The undersigned also notes that plaintiff did
not contend that he made any efforts to obtain
counsel on his own, show proof of any attorneys
he contacted. See Terminate Control Corp v.
Horowitz, 28 F.3d 1335 (2d Cir. 1994). See Dkt.
No. 5.
ORDERED, that the Clerk serve this Report-
Recommendation & Order on plaintiff in accordance with the
Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), parties have
FOURTEEN (14) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN (14) DAYS
WILL PRECLUDE APPELLATE REVIEW. Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y
of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see
also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 72. 11
11 If you are proceeding pro se and are served with
this Report-Recommendation and Order by mail,
three (3) additional days will be added to the
fourteen (14) day period, meaning that you have
seventeen (17) days from the date the Report-
Recommendation and Order was mailed to you to
serve and file objections. FED. R. CIV. P. 6(d).
If the last day of that prescribed period falls on
a Saturday, Sunday, or legal holiday, then the
deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Id.
§ 6(a)(1)(c).
All Citations
Not Reported in Fed. Supp., 2024 WL 4870495
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 74 of 175

Cole v. Smrtic
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 1:24-CV-00847
Cole v. Smrtic et al
— N.D.N.Y. July 08, 2024 Docket
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Cole v. Smrtic
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (2)
1. Cole v. Smrtic
2024 WL 4870495 , N.D.N.Y. , Nov. 21, 2024
Report and Recommendation Adopted by
2. Cole v. Smrtic
2025 WL 247901 , N.D.N.Y. , Jan. 21, 2025
Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 76 of 175

Cole v. Smrtic
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 77 of 175

Villafane v. Sposato, Not Reported in Fed. Supp. (2017)
2017 WL 4179855
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Sankara v. City of New York, S.D.N.Y., February 22,
2018
2017 WL 4179855
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Carlos VILLAFANE, Pro Se Plaintiff,
v.
Michael SPOSATO, Nassau County Sheriff, and
Armor Correctional Health Service, Defendants.
CV 16-3674 (JFB) (AKT)
|
Signed 08/22/2017
Attorneys and Law Firms
Carlos Villafane, New York, NY, pro se.
John J. Doody, Dale Nicholson McLaren, Lewis Brisbois
Bisgaard & Smith, LLP, New York, NY, Liora M. Ben-
Sorek, Nassau County Attorney's Office, Mineola, NY, for
Defendants.
REPORT AND RECOMMENDATION
A. KATHLEEN TOMLINSON, U.S. Magistrate Judge
I. PRELIMINARY STATEMENT
*1 Pro se Plaintiff Carlos Villafane (“Villafane” or
“Plaintiff”) brings this civil rights action, pursuant to 42
U.S.C. § 1983, alleging violations of the Fifth, Eighth and
Fourteenth Amendments, as well as the Prison Litigation
Reform Act. See generally Complaint (“Compl.”) [DE 1].
Defendants Michael Sposato and Armor Correctional Health
Services of New York s/h/a Armor Correctional Health
Service (collectively, “Defendants”) have moved to dismiss
the Complaint pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure and the Prison Litigation Reform Act, 42
U.S.C. § 1997e(a). Notice of Motion [DE 19]. Judge Bianco
referred Defendants' Motion to Dismiss to this Court for a
Report and Recommendation as to whether the motion should
be granted. DE 33.
II. BACKGROUND
A. Factual Background
The following factual allegations have been taken from
Plaintiff's Complaint and the Plaintiff's Opposition to
Defendants' motion to dismiss. Because Plaintiff is
proceeding pro se, the Court is obligated to construe his
pleadings liberally “to raise the strongest arguments that they
suggest.” See Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 474–75 (2d Cir. 2006) (per curiam) (quoting Pabon v.
Wright, 459 F.3d 241, 248 (2d. Cir. 2006)) (collecting cases)
(internal quotation marks omitted). 1 All facts alleged by
Plaintiff are assumed to be true for purposes of deciding the
motion to dismiss and are construed in a light most favorable
to Plaintiff as the non-moving party. See, e.g., LaFaro v.
N.Y. Cardiothoracic Grp., 570 F.3d 471, 475 (2d Cir. 2009)
(quoting Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292,
300 (2d Cir. 2003)); Matthews v. City of N.Y., 889 F.Supp.2d
418, 425 (E.D.N.Y. 2012) (citing LaFaro, 570 F.3d at 475–
76).
1 In construing a pro se plaintiff's pleadings liberally,
“the Court may ‘consider factual allegations in
the plaintiff's opposition papers to supplement
the allegations in the complaint.’ ” Williams v.
Wellness Med. Care, P.C., No. 11-5566, 2013 WL
5420985, at *1 n.1 (S.D.N.Y. Sept. 27, 2013)
(quoting Salvatierra v. Connolly, No. 09-3722,
2010 WL 5480756 at *25 n. 3 (S.D.N.Y. Sept. 1,
2010) (internal quotation marks omitted)) (citing
Frith v. Hill, No. 07-CV-5899, 2009 WL 3073716,
at *19 n. 1 (S.D.N.Y. Sept. 23, 2009)), report
and recommendation adopted, 2011 WL 9398
(S.D.N.Y. Jan. 3, 2011); see Smolen v. Fischer,
No. 12-1856, 2012 WL 3609089, at *1 (S.D.N.Y.
Aug. 23, 2012) (citing Erickson v. Pardus, 551
U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081
(2007)) (“Although certain factual allegations in
Smolen's opposition affidavit are not contained in
the complaint, this Court will deem the complaint
amended to include those allegations since Smolen
is a pro se plaintiff.”); Sommersett v. City of
New York, 09-5916, 2011 WL 2565301, at *3
(S.D.N.Y. 2011); Green v. City of N.Y. Dep't of
Corr., No. 6-4978, 2008 WL 2485402, at *4
(S.D.N.Y. June 19, 2008); Ibok v. Sector, No.
05-6584, 2006 WL 302336, at * 1, n.1 (S.D.N.Y.
Feb. 9, 2006) (citing Fox v. Fischer, No. 04-6718,
2005 WL 1423580 at *2 n.1 (S.D.N.Y. June 14,
2005), aff'd, 242 Fed.Appx. 759 (2d Cir. 2007);
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Villafane v. Sposato, Not Reported in Fed. Supp. (2017)
2017 WL 4179855
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Verley v. Goord, No. 02 Civ. 1182, 2004 WL
526740, at *4–5, 2004 U.S. Dist. LEXIS 857,
at *15-17 (S.D.N.Y. Jan. 22, 2004)) (“The Court
may consider the factual allegations in plaintiff's
Response to supplement those in his complaint
because of the liberal standard afforded to the
pleadings of pro se litigants.”).
1. Plaintiff's Medical Issues
*2 On or about September 11, 2013, Plaintiff was taken to
the Nassau County Correctional Center (“NCCC”), referred
to by Plaintiff in his Complaint as the “Nassau County Jail.”
See Compl. § III.B. At that time, Plaintiff had a broken
left forearm. Id. § III.C. Despite informing the “medical
department” about his condition, Plaintiff was “neglected
intentionally without pain medication.” Id. On September 14,
2013, Plaintiff was taken to the “Nassau County University
Hospital, where the doctor had [Plaintiff] x-rayed set [his]
arm in a soft cast.” Id. A doctor advised Plaintiff that he
needed surgery and told “the officials” to bring Plaintiff back
to the hospital for surgery on September 17, 2013. Id. The
NCCC did not produce Plaintiff for the surgery on that date
and “still refused to give [Plaintiff] the said prescribed ... pain
medication.” Id.
On September 24, 2013, Plaintiff was examined at the
NCCC by a visiting orthopedist “who expressed shock” that
Plaintiff “had not received any surgery.” Id. According to
Plaintiff, the orthopedist “entered an order on my medical
chart by directing a nurse to write down that it was extremely
urgent that I have surgery.” Id. Once again, however, the
NCCC “knowingly ignored, and intentionally did denied [sic]
[Plaintiff] the proper medical procedures and also continued
to deny ... the pain medication or any type of medication
to aliviate [sic] the pain.” Id. On October 9, 2013, Plaintiff
was transported to Nassau University Medical Center where
his arm was again x-rayed. Id. The doctor told him that his
arm was in fact broken. Id. The doctor also told him that
because he had not received surgery, his arm would have to be
rebroken “and that the surgery cost too much money and the
facility wouldn't pay.” See id. Plaintiff's arm was then set in a
hard cast and Plaintiff complained again about the pain. Id.
Around the end of October 2013, Plaintiff appeared before
Judge Hurley in connection with his criminal case. See
id. Plaintiff complained to his lawyer about the NCCC's
treatment of him. Id. Plaintiff states that his lawyer spoke
to Judge Hurley and that Judge Hurley recommended that
Plaintiff “be transferred to the Metropolitan Detention Center
in Brooklyn, New York.” Id.
On November 5, 2013, Plaintiff was transferred to the
Metropolitan Detention Center (“MDC”). Id. Sometime
thereafter, MDC officials transported Plaintiff to the
“[B]rooklyn Medical Center and Kingsbrook Hospital from
2014 through 2015.” Id. At the Brooklyn Medical Center,
Plaintiff underwent the surgery that he needed—his arm was
rebroken and set with two metal plates and metal screws. Id.
According to Plaintiff, “my arm is not the same I don't have
100% use of my left wrist and my left hand and I am in
constant pain.” See id.
2. Grievances
In his Opposition to the Defendants' Motion to Dismiss,
Plaintiff states that while detained at the NCCC, he lodged
numerous complaints about his left arm as well as other
issues, through grievance forms and sick-call requests. See
Plaintiff's Opposition (“Pl's. Opp'n”) [DE 30] at 4-5. Plaintiff
represents that he could not tell what the officer wrote on
most of the complaint forms and that there were times when
the officer informed Plaintiff that he “had to sign the form
because soon [he would] be taken to the Hospital.” Id. at
4. Plaintiff further maintains that on “some of the forms the
officer wrote that the Plaintiff Refuse [sic] to sign while
writing a later date.” Id. Plaintiff asserts that those statements
are not true because he had, in fact, signed the form on an
earlier date. Id. Plaintiff points out that defendants' counsel
referred to the Prison Litigation Reform Act (“PLRA”) in the
motion papers. Id. According to Plaintiff, the PLRA “makes
it harder for prisoners to file lawsuits in federal court.” Id.
Plaintiff adds that
the fact is that the Plaintiff was
Transferred from a county holding
facility to a Federal Transcient
[sic] facility which is A different
jurisdiction, with different Rules and
Regulation, to wit your complaints
go to Washington D.C. besides your
Honor the Plaintiff was Released, he
was Free when he submitted this Law
Suits so I am Asking your Honor to
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Villafane v. Sposato, Not Reported in Fed. Supp. (2017)
2017 WL 4179855
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Please don't dismiss my lawsuit Please
Allow a jury to decide.
*3 Id. at 6.
3. Claims Set forth in the Instant Action and Relief Sought
Plaintiff represents that he has filed the instant action
against Armor Correctional Health Services of New York
(“Armor”) for intentionally failing to provide him with
“prop[ ]er medical care” and against Sheriff Michael Sposato
for “allowing [Armor] to do so” and for not “monitoring
[the] medical department.” Compl. § II.D. According to
Plaintiff, Defendants' conduct constitutes violations of the
Eighth and Fifth Amendments of the Constitution, the Equal
Protection Clause and the Prison Litigation Reform Act. Id.
§ II.B. Plaintiff seeks $5,000,000 in monetary damages to
compensate him for his pain and suffering, mental anguish
and inability to have full use of his left hand. Id. § IV.
B. Procedural History
Pro se Plaintiff Villafane commenced this action by filing a
Complaint on June 24, 2016. See DE 1. By Order entered July
6, 2016, Judge Bianco who was assigned to this civil case,
granted Plaintiff's Motion for Leave to Proceed in Forma
Pauperis. DE 5. The Nassau County Attorney's Office, on
behalf of Nassau County Sheriff Michael Sposato, filed an
Answer to the Complaint on September 9, 2016. DE 12. On
October 6, 2016, the law firm of Lewis Brisbois Bisgaard
and Lewis (“Lewis Brisbois”) filed a letter application to
Judge Bianco seeking a pre-motion conference for purposes
of moving to dismiss the Complaint against Armor. DE
15. On October 12, 2016, Judge Bianco issued an Order
waiving the pre-motion conference requirement and setting a
briefing schedule on Armor's motion to dismiss. DE 16. Lewis
Brisbois filed the motion to dismiss on November 14, 2016 on
behalf of both defendants. DE 19. Pursuant to Judge Bianco's
Scheduling Order, Plaintiff's Opposition to the motion was
due to be filed by December 28, 2016, and Defendants' Reply,
by January 11, 2017. DE 16.
On December 19, 2016, Plaintiff notified the Court of a
change in his address. DE 22. Judge Bianco posted an
Electronic Order on December 23, 2017 stating that due to
Plaintiff's address change, Defendants were unable to serve
him with a copy of their motion. See 12/23/2016 Electronic
Order. Judge Bianco set a revised briefing schedule, directing
Plaintiff to file his Opposition by January 25, 2017 and
Defendants to file their Reply by February 8, 2017. Id.
On January 9, 2017, Plaintiff filed a motion for extension of
time to file his Opposition, which Judge Bianco granted. DE
26, 27. The deadline for Plaintiff to submit his Opposition
was extended to February 24, 2017. The filing date for the
Reply was extended to March 10, 2017. DE 27. On March
3, 2017, Judge Bianco issued an Order directing Plaintiff to
file his Opposition by March 20, 2017, or alternatively, to
send a letter communicating to the Court why no Opposition
had been filed. DE 28. The Court warned Plaintiff that a
failure to respond may result in dismissal of his case, with
prejudice, for failure to prosecute his claims. Id. On March
17, 2017, Plaintiff filed a letter explaining that he mailed a
copy of his Opposition to Defendants via Fedex on February
24, 2017. DE 29. Plaintiff further stated that he requested
additional time to respond to Defendants' motion so that he
could obtain medical records from two hospitals where he
received treatment. Id. Plaintiff's Opposition was filed with
the Clerk's Office on March 23, 2017. DE 30. In addition to
arguing the merits of his case, Plaintiff informed the Court
that the 87 pages of unpublished opinions provided to him by
the Defendants were not legible. Id. Plaintiff also requested
more time to respond to Defendants' Motion to Dismiss. Id.
*4 Judge Bianco issued an Order on March 23, 2017
(1) informing Plaintiff that the Court was in receipt of his
Opposition and (2) directing Defendants to file their Reply
by April 7, 2017. See DE 31. Defendants' Reply was filed on
April 3, 2017. DE 32. By Order dated April 6, 2017, Judge
Bianco referred Defendants' Motion to Dismiss to this Court
for a Report and Recommendation as to whether the motion
should be granted. DE 33.
On April 12, 2017, the Court received a letter from Plaintiff
requesting additional time to research, gather further evidence
and respond to Defendants' motion to dismiss. DE 34. The
Court directed counsel for Defendants to promptly serve
Plaintiff with new, legible copies of the unpublished opinions,
and/or opinions exclusively on computerized databases,
in accordance with Local Civil Rule 7.2. See 4/19/2017
Electronic Order. Those opinions were mailed to Plaintiff at
400-430 30 th Street, Room 3028, New York, NY 10016. See
April 28, 2017 Affidavit of Service [DE 35].
In light of Plaintiff's asserted efforts to obtain his medical
records, as set forth in his requests for additional time
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Villafane v. Sposato, Not Reported in Fed. Supp. (2017)
2017 WL 4179855
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to respond to Defendants' motion, the Court issued an
Order on May 1, 2017 directing Defendants to furnish the
Court and Plaintiff with copies of various medical records
concerning the care/treatment of Plaintiff by Armor, the
NCCC, Nassau University Medical Center, the Metropolitan
Detention Center, and the Brooklyn Medical Center and/or
Kingsbrook Hospital. See DE 36.
On May 8, 2017, counsel for Defendants filed a letter
explaining that the unpublished opinions which were
previously mailed to Plaintiff had been returned to their office
by the postal service. DE 38. A copy of the envelope in
which the opinions were sent reflects two stamps—“Return
to Sender” and “Unable to Forward.” DE 38. In response
to this filing, efforts were made to set up a conference call
between counsel for the Defendants, Plaintiff and the Court.
Defendants' counsel tried reaching Plaintiff via telephone
using the number listed on the docket: (516) 244-7329.
See DE 22. Counsel was transferred to Plaintiff's voicemail.
Subsequently, on May 15, 2017, this Court's Law Clerk
called Plaintiff at the same number and was also forwarded
to Plaintiff's voicemail. At the Court's direction, the Law
Clerk left a message advising Plaintiff to contact Chambers
immediately or risk having his case dismissed. When the
Court did not receive a return call from Plaintiff, the
undersigned, along with the Law Clerk, personally called
Plaintiff on June 1, 2017 and was forced to leave a voicemail
directing Plaintiff to call Chambers immediately. By Order
dated June 19, 2017, the Court issued an Order to Show
Cause directing Plaintiff to appear on July 11, 2017 and show
cause why this case should not be dismissed for his failure to
prosecute his claims and failure to comply with the Court's
Orders. DE 39.
Plaintiff appeared before the Court at the July 11, 2017
Show Cause Hearing and provided the Court with an updated
telephone number and a corrected address. See DE 45. During
that conference, Plaintiff reiterated his request for additional
time to respond to Defendants' motion. Id. He explained to
the Court that he was in the process of obtaining medical
records from St. Barnabas Hospital as well as the minutes
from a 2013 appearance before Magistrate Judge Brown in his
criminal case. Id. The Court directed Plaintiff to send a letter
to the Court within one week of the Court's conference (1)
setting forth why he should be permitted to add information
to his response at this time, and (2) identifying the particular
documents he wishes to use and why those documents support
his claims. Id.
*5 Counsel for the defendants filed an Affidavit of Service
on July 11, 2017 stating that Plaintiff had been served by
mail with copies of the unpublished opinions at Plaintiff's
corrected address. DE 44. By letter dated July 19, 2017,
Plaintiff confirmed that he had received copies of the medical
records from the Defendants. See DE 48. In addition to
arguing the merits of his case, Plaintiff responded to the
directives given during the July 11, 2017 Show Cause
Hearing. See id. Plaintiff stated that he is once again
requesting an extension of time to supplement his Opposition
so that he may gather all of his medical records. Id. According
to Plaintiff, this process is taking him a long time because he
is representing himself and is still searching for an attorney
to assist him with his case. Id. Plaintiff referred to certain
records from St. Barnabas Hospital and explained that they
demonstrate that the injury to his left forearm occurred
sometime in “June/July or August 6th 2013.” Id. at 2. In
addition, Plaintiff is still attempting to get a copy of the
minutes from his September 11, 2013 arraignment before
Judge Brown. Id. According to Plaintiff, Judge Brown told
him “don't worry Mr. Villafane we are sending you to a
facility to [immediately] take care of your injuries.” Id.
Defendants initially providing him with illegible copies of the
unpublished opinions slowed his ability to read and research
Defendants' motion. Id. at 3
In the balance of DE 48, Plaintiff stated that (1) the
seriousness of the surgery he had on his wrist now “interferes
with the movement of his left elbow and inner forearm”;
(2) he has played the drums since age 8 or 9 and now it is
impossible for him “to play music, keep a beat or roll, my
wrist constantly goes numb and I have to keep moving it as
to get blood flow”; (3) the size of the Defendants' motions
“would take years because I have the right to read and research
every cited or uncited case ...”; (4) he has continued to look
for a lawyer and feels that “as a pro se litigant, I have been
stripped of my own defense. I am praying that this court
would allow me to continue to fight this case. My body's been
Reconstructed, I have screws on my Right knee because I
don't have no Right Knee Caps”; (5) “I also have movement
problems because of all the metal rods and screws, then I don't
have any balance or else I'll fall I just had 2 eye surgery it
isn't easy for me to run around and do all this work because I
need help going down and up the stairs. Then I had to beg for
money to get copies remember so I could put all these legal
arguments and papers together with the defendants motion to
dismiss because I didn't know the law and I had no one to help
me....” Id. at 3-5. According to the Plaintiff, the only thing he
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was still missing were the minutes of his arraignment before
Magistrate Judge Brown. Id. at 5.
On August 2, 2017, Defendants filed their Opposition to
Plaintiff's request. DE 52. Counsel urges the Court to
deny Plaintiff's request to supplement his Opposition at
this time. Id. Counsel points out that although Plaintiff
alleges Defendants are asserting that his broken left forearm
originated from a 2004 motor vehicle accident, Defendants
make no such allegation in their motion papers. Id. Instead,
Defendants state that Plaintiff arrived at the NCCC with the
broken left forearm, which Plaintiff himself concedes in his
Complaint. Id. According to Defendants, establishing that
Plaintiff's injury occurred in 2013 as opposed to during a
motor vehicle accident in 2004 “does absolutely nothing to
bolster his claim as to whether or not Armor provided him
with inadequate medical treatment.” Id. Defendants maintain
that Plaintiff is “simply employing a delay tactic to prolong
the action for as long as possible until he either finds an
attorney or the Armor defendants settle.” Id.
Having reviewed and considered Plaintiff's July 19, 2017
request, as well as Defendants' opposition, the Court is
denying Plaintiff's application to further supplement his
Opposition at this time. Plaintiff is free to continue to seek
his records from St. Barnabas Hospital. However, the Court
will not further delay the progress of this case waiting for
them. The St. Barnabas records, even assuming they show that
Plaintiff's injury originated in 2013, do not impact the issues
underlying Defendants' Motion to Dismiss.
With respect to Plaintiff's reference to the unpublished
opinions, the Court had Defendants mail legible copies to
Plaintiff on April 19, 2017. See 4/19/2017 Electronic Order.
The mailing was done on April 28, 2017. DE 35. On May
8, 2017, Defendants notified the Court that those opinions
had been returned as undeliverable. See DE 38. First the
Defendants and then the Court itself attempted to contact
Plaintiff over the course of several weeks to ensure that he had
received copies of the opinions. See DE 39. As noted, it was
not until the July 11, 2017 Show Cause Hearing that Plaintiff
provided the Court with his updated telephone number and
correct address. DE 45. Defendants mailed the unpublished
opinions to the corrected address that same day. See DE 44.
*6 In his most recent request for additional time, however,
Plaintiff fails to substantively discuss anything from those
cases which would convince the Court to further extend
the time to oppose Defendants' motion. Given all of these
factors, there is no justification for further delay. The Court is
terminating the outstanding requests that Plaintiff be provided
still more time to oppose Defendants' motion to dismiss. See
DE 29, 34, 41, 50.
III. STANDARD OF REVIEW
Defendants move for dismissal pursuant to Rule 12(b)(6).
Defendant Sposato, however, filed an Answer to Plaintiff's
Complaint on September 8, 2016, prior to filing the instant
motion. The pleadings with respect to Defendant Sposato are
therefore closed and as such his motion should have been
brought as a Motion for Judgment on the Pleadings, pursuant
to Rule 12(c). Fed. R. Civ. P. 12(c). However, the Court
applies the same standard of review when analyzing a motion
to dismiss pursuant to Rule 12(b)(6) as it does when reviewing
a motion for judgment on the pleadings pursuant to Rule
12(c). Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d
Cir. 2006) (citing Karedes v. Ackerley Group, Inc., 423 F.3d
107, 113 (2d Cir. 2005)); Stern v. City of New York, No.
12-5210, 2015 WL 918754, at *2 (E.D.N.Y. Mar. 3, 2015)
(citing Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004))
(“The same legal standard applies to a Rule 12(b)(6) motion
as a Rule 12(c) motion.”); Rubino v. Town of Babylon, No.
09-5187, 2012 WL 928252, at *1 (E.D.N.Y. Mar. 19, 2012)
(citing Livant v. Clifton, 272 Fed.Appx. 113, 115 (2d Cir.
Apr. 7, 2008); Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.
1999)) (finding that although the County filed a motion for
judgment on the pleadings pursuant to Rule 12(c) when it
had not answered the Complaint, the Court “need not decide
the issue” since the standard for Rule 12(c) and Rule 12(b)
(6) motions are the same); Transamerica Fin. Life Ins. Co.
v. Session, No. 10-1328, 2010 WL 4273294, at *2 (S.D.N.Y.
Oct. 28, 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129
S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)) (citing Hayden v.
Paterson, 594 F.3d 150, 160 (2d Cir. 2010)) (“To survive a
motion under Rule 12(c) or Rule 12(b)(6), ‘a complaint must
contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.’ ”); Scott v. J.
Anthony Cambece Law Office, P.C., 600 F.Supp.2d 479, 481
(E.D.N.Y. 2009) (citing Patel v. Contemporary Classics of
Beverly Hills, 259 F.3d 123, 126–27 (2d Cir. 2001)) (noting
that “the standard for granting a Rule 12(c) motion is identical
to that employed when analyzing a Rule 12(b)(6) motion.”).
Notwithstanding Defendant Sposato's filing of his motion
under Rule 12(b) instead of Rule 12(c), the Court will review
the motion on its merits.
In deciding a motion to dismiss pursuant to Rule 12(b)(6),
the Court must liberally construe the claims, accept all factual
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allegations in the complaint as true, and draw all reasonable
inferences in favor of the plaintiff. See Aegis Ins. Servs., Inc.
v. 7 World Trade Co., L.P., 737 F.3d 166, 176 (2d Cir. 2013)
(quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152
(2d Cir. 2002)) (internal quotation marks omitted); Grullon v.
City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (quoting
Chase Group Alliance LLC v. City of New York Department
of Finance, 620 F.3d 146, 148 (2d Cir. 2010); Harris v. City of
New York, 607 F.3d 18, 24 (2d Cir. 2010)) (citing Sims v. Blot,
534 F.3d 117, 133 (2d Cir. 2008)). The plaintiff must satisfy
“a flexible ‘plausibility standard.’ ” Iqbal v. Hasty, 490 F.3d
143, 157-158 (2d Cir. 2007), rev'd on other grounds sub nom.
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009). “[O]nce a claim has been stated adequately, it may
be supported by showing any set of facts consistent with the
allegations in the complaint.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 546, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The
Court, therefore, does not require “heightened fact pleading
of specifics, but only enough facts to state a claim to relief
that is plausible on its face.” Id. at 570, 127 S.Ct. 1955; see
Operating Local 649 Annuity Trust Fund v. Smith Barney
Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir. 2010) (quoting
Twombly, 550 U.S. at 555, 127 S.Ct. 1955) (citing Ashcroft,
556 U.S. 662, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868)
(holding that a complaint must set forth “a plausible set of
facts sufficient ‘to raise a right to relief above the speculative
level[ ]’ ”).
*7 The Supreme Court clarified the appropriate pleading
standard in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009), in which the court set forth a two-
pronged approach to be utilized in analyzing a motion to
dismiss. District courts are to first “identify[ ] pleadings that,
because they are no more than conclusions, are not entitled
to the assumption of truth.” Id. at 679, 129 S.Ct. 1937, 1949;
see id. at 678, 129 S.Ct. 1937, 1949 (quoting Twombly, 550
U.S. at 555, 127 S.Ct. 1955) (“A pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of
a cause of action will not do.’ ”). Though “legal conclusions
can provide the framework of a complaint, they must be
supported by factual allegations.” Id. at 679, 129 S.Ct. 1937,
1949. Second, if a complaint contains “well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged. The plausibility standard is not akin to
a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. at 678,
129 S.Ct. 1937, 1949 (citing Twombly, 550 U.S. at 556-57,
127 S.Ct. 1955) (internal citations omitted).
In adjudicating a Rule 12(b)(6) motion to dismiss, the Court
must limit itself to facts alleged in the complaint, which are
accepted as true; to documents attached to the complaint
as exhibits or incorporated in the complaint by reference;
to matters of which judicial notice may be taken; or to
documents whose terms and effect are relied heavily upon
in the complaint and, thus, are rendered “integral” to the
complaint. Chambers v. Time Warner, Inc., 282 F.3d 147,
152–53 (2d Cir. 2002) (quoting Brass v. American Film
Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993)); see also
ASARCO LLC v. Goodwin, 756 F.3d 191, 198 (2d Cir. 2014)
(quoting In re Thelen LLP, 736 F.3d 213, 219 (2d Cir. 2013),
certified question accepted sub nom. Thelen LLP. v. Seyfarth
Shaw LLP, 22 N.Y.3d 1017, 4 N.E.3d 359, 981 N.Y.S.2d 349
(2013), and certified question answered, 24 N.Y.3d 16, 20
N.E.3d 264, 995 N.Y.S.2d 534 (2014)).
In addition, where, as here, a plaintiff is proceeding pro se, the
complaint must be considered under a more lenient standard
than that accorded “formal pleadings drafted by lawyers.”
Bellamy v. Mt. Vernon Hosp., No. 07 Civ. 1801, 2009 WL
1835939, at *3 (S.D.N.Y. June 26, 2009) (quoting Haines v.
Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652
(1972)), aff'd, 387 Fed.Appx. 55 (2d Cir. 2010). Therefore, a
court must construe a pro se plaintiff's pleading broadly and
interpret it to raise the strongest arguments that it suggests.
See Hughes v. Rowe, 449 (U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d
163 1980) (quoting Haines v. Kerner, 404 U.S. 519, 520,
92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972)); see also Sealed
Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008)
(quoting McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.
2004); Boykin v. KeyCorp, 521 F.3d 202, 216 (2d Cir. 2008))
(holding that when a plaintiff proceeds pro se, the district
court “is obliged to construe his pleadings liberally” and
noting that “the dismissal of a pro se claim as insufficiently
pleaded is appropriate only in the most unsustainable of
cases.”). “However, mere conclusions of law or unwarranted
deductions need not be accepted.” Alston v. Sebelius, No.
13-4537, 2014 WL 4374644, at *5 (E.D.N.Y. Sept. 2, 2014)
(quoting Bobrowsky v. Yonkers Courthouse, 777 F.Supp.2d
692, 703 (S.D.N.Y. 2011)).
Although “courts generally will not accept factual allegations
raised for the first time in opposition to a motion to dismiss,
some courts have construed the mandate to read a pro se
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plaintiff's papers liberally as allowing for consideration of
such allegations.” Rolle v. Educ. Bus Transp., Inc., No.
13-1729, 2014 WL 4662256, at *9 (E.D.N.Y. Aug. 8, 2014)
(collecting cases), report and recommendation adopted by,
2014 WL 4662267 (E.D.N.Y. Sept. 17, 2014); Ibok, 2006 WL
302336, at * 1, n.1 (citing Fox v. Fischer, No. 04-6718, 2005
WL 1423580 at *2, n.1 (S.D.N.Y. June 14, 2005) aff'd, 242
Fed.Appx. 759 (2d Cir. 2007); Verley v. Goord, No. 02-1182,
2004 WL 526740, at *5 (S.D.N.Y. Jan. 22, 2004)) (“The Court
may consider the factual allegations in plaintiff's Response
to supplement those in his complaint because of the liberal
standard afforded to the pleadings of pro se litigants.”). In
the instant case, the Court, in furtherance of its obligation
to construe pro se pleadings liberally, will consider the
factual allegations set forth in Plaintiff's opposition papers to
the extent such facts are related to and consistent with his
Complaint. Rosario v. New York City, No. 12-4795, 2013 WL
2099254, at *1-2 n.1 (S.D.N.Y. May 15, 2013) (citing Braxton
v. Nichols, No. 08-8568, 2010 WL 1010001, at * 1 (S.D.N.Y.
Mar. 18, 2010); Gill v. Mooney, 824 F.2d 192, 195 (2d Cir.
1987)) (“[B]ecause [the plaintiff] is proceeding pro se, the
Court also considers factual allegations contained in [his] two
submissions in opposition to defendants' motion to dismiss,
to the extent consistent with the Complaint.”); see Harris v.
NYU Langone Med. Ctr., No. 12-0454, 2013 WL 3487032,
at *2 n.6 (S.D.N.Y. July 9, 2013) (“[B]ecause Harris is
proceeding pro se, the Court may consider factual allegations
contained in her submissions in opposition to Defendants'
motions to dismiss, to the extent they are consistent with
the [Complaint].”), report and recommendation adopted as
modified, 2013 WL 5425336 (S.D.N.Y. Sept. 27, 2013); see
also Malik v. City of New York, No. 11-6062, 2012 WL
3345317, at *5 (S.D.N.Y. Aug. 15, 2012) (collecting cases)
(“The mandate to read a pro se plaintiff's papers liberally,
however, makes it appropriate to consider factual allegations
in [the plaintiff's] opposition papers, in addition to those in
his Complaint, in resolving the motion to dismiss.”); Aponte
v. Buono, No. 11-1077, 2011 WL 6812924, at *3 (E.D.N.Y.
Dec. 28, 2011) (citing Cusamano v. Sobek, 604 F.Supp.2d
416, 461 (N.D.N.Y. 2009)); Sommersett, 2011 WL 2565301,
at *3 (quoting Milano v. Astrue, No. 05 Civ. 6527, 2007 WL
2668511, at *2 (S.D.N.Y. Sept. 7, 2007)) (“ ‘[W]here a pro
se plaintiff has submitted other papers to the Court, such
as legal memoranda, the Court may consider statements in
such papers to supplement or clarify the plaintiff's pleaded
allegations.’ ”).
*8 Here, the pro se Plaintiff raises certain allegations
for the first time in his Opposition to Defendants' motion,
which the Court will nonetheless consider since they are
related to the Complaint. However, in connection with those
allegations, Plaintiff seeks to introduce certain documents for
the Court to consider. The Court must therefore determine
whether, pursuant to Rule 12(d), Defendants' motions should
be converted to motions for summary judgment under Rule
56. See Fed. R. Civ. P. 12(d). “The district court's conversion
of a Rule 12(b)(6) motion into one for summary judgment is
governed by principles of substance rather than form.” M.J.M.
Exhibitors, Inc. v. Stern (In re G. & A. Books. Inc.), 770 F.2d
288, 295 (2d Cir. 1985). “The essential inquiry in determining
whether it is appropriate to convert a motion [to dismiss] into
a motion for summary judgment is ‘whether the non-movant
should reasonably have recognized the possibility that the
motion might be converted into one for summary judgment
or was taken by surprise and deprived of a reasonable
opportunity to meet facts outside the pleadings.’ ” Costor v.
Sanders, No. 07-11311, 2009 WL 1834374, at *2 (S.D.N.Y.
June 16, 2009) (quoting Krijn v. Pogue Simone Real Estate
Co., 896 F.2d 687, 689 (2d Cir. 1990)); accord Glover v.
Greenman, No. 11-9122, 2013 WL 1294698, at *3 (S.D.N.Y.
Apr. 1, 2013). “Resolution of this issue will necessarily
depend largely on the facts and circumstances of each case.”
M.J.M. Exhibitors, 770 F.2d at 295 (citing Dayco Corp. v.
Goodyear Tire & Rubber Co., 523 F.2d 389, 393 (6th Cir.
1975))
“Ordinarily, formal notice is not required where a party should
reasonably have recognized the possibility that the motion
might be converted into one for summary judgment and
was neither taken by surprise nor deprived of a reasonable
opportunity to meet facts outside the pleadings.” Hernández
v. Coffey, 582 F.3d 303, 307 (2d Cir. 2009) (quoting Villante
v. Dep't of Corrections of City of New York, 786 F.2d
516, 521 (2d Cir. 1986)) (brackets and quotation marks
omitted); see Sira v. Morton, 380 F.3d 57, 68 (2d Cir. 2004)
(quoting Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir.
1999)) (“A party is deemed to have notice that a motion
may be converted into one for summary judgment if that
party ‘should reasonably have recognized the possibility’
that such a conversion would occur.”). However, where,
as here, the non-movant is proceeding pro-se, “[n]otice is
particularly important because the pro se litigant may be
unaware of the consequences of his failure to offer evidence
bearing on triable issues. Accordingly, pro se parties must
have unequivocal notice of the meaning and consequences
of conversion to summary judgment.” Hernández, 582 F.3d
at 307-08 (quoting Beacon Enters., Inc. v. Menzies, 715 F.2d
757, 767 (2d Cir. 1983)); accord Parada v. Banco Indus.
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De Venezuela, C.A., 753 F.3d 62, 68 (2d Cir. 2014) (citing
Hernández, 582 F.3d at 307).
Rule 12.1 of the Local Civil Rules of the United States
District Courts for the Eastern and Southern Districts of New
York (“Local Civil Rule 12.1”) provides, in relevant part, as
follows:
A represented party moving ... for
judgment on the pleadings against a
party proceeding pro se, who refers
in support of the motion to matters
outside the pleadings as described in
Fed. R. Civ. P. 12(b) or 12(c), shall
serve and file the ... notice [provided
therein] with the full text of Fed. R.
Civ. P. 56 attached at the time the
motion is served. If the Court rules that
a motion to dismiss or for judgment
on the pleadings will be treated as
one for summary judgment pursuant
to Fed. R. Civ. P. 56, and the movant
has not previously served and filed the
notice required by this rule, the movant
shall amend the form notice to reflect
that fact and shall serve and file the
amended notice within fourteen days
of the Court's ruling.
Local Civil Rule 12.1. Courts in this district have held that
notice pursuant to Local Civil Rule 12.1 provides sufficient
notice to pro se parties that a motion to dismiss may be
converted to a motion for summary judgment. See Wiggins
v. Figueroa, No. 13-1731, 2015 WL 729730, at *1 (E.D.N.Y.
Feb. 18, 2015) (citing Hernández, 582 F.3d at 308 n.2);
Lawrence v. Sharkey, No. 13-173, 2015 WL 2213274, at *3
(E.D.N.Y. May 8, 2015); accord Loccenitt v. City of New York,
No. 10-8319, 2012 WL 5278553, at *3 (S.D.N.Y. Oct. 22,
2012) (citing Goodwin v. Solil Mgmt. LLC, 10-5546, 2012
WL 1883473, at *2 (S.D.N.Y. May 22, 2012)) (“Courts in this
district have concluded that a notice pursuant to Local Civil
Rule 12.1 suffices to satisfy the requirement that parties be
afforded a chance to offer affidavits and other evidence.”).
*9 Ultimately, “[a] party cannot complain of lack of a
reasonable opportunity to present all material relevant to a
motion for summary judgment when both parties have filed
exhibits, affidavits, counter-affidavits, depositions, etc. in
support of and in opposition to a motion to dismiss [or for
judgment on the pleadings]....” M.J.M. Exhibitors, 770 F.2d at
295 (citation omitted); see also Reliance Ins. Co. v. Polwision
Corp., 474 F.3d 54, 57 (2d Cir. 2007) (finding that it was
not error for the district court to consider evidence outside
of the complaint in resolving a Rule 12(c) motion “without
explicitly giving notice that it was converting the Rule 12
motion to a Rule 56 motion[,]” because it was “clear from the
record ... that [the non-moving party] knew additional factual
considerations were being considered and, in fact, responded
with its own evidentiary submissions”); Sira, 380 F.3d at 68
(“By attaching to their motion extensive materials that were
not included in the pleadings, defendants plainly should have
been aware of the likelihood of such a conversion.”). Thus,
a party who relies on extrinsic material to oppose the motion
cannot later claim “that they were deprived of an adequate
opportunity to provide the materials they deemed necessary to
support or respond to the motion.” Soller, 2015 WL 500492,
at *8 (citing Sira, 380 F.3d at 68).
Here, Defendants have not requested that their motion be
converted to one for summary judgment and thus have
not provided the Plaintiff with a Local Civil Rule 12.1,
which is unnecessary here. Since Plaintiff is proceeding
pro se, the Court will not assume that his submission
of extrinsic materials constitutes proof that Plaintiff is
aware of the summary judgment process and the potential
consequences of conversion. See Hernández, 582 F.3d at
307-308 (citing Beacon Enters., Inc. v. Menzies, 715 F.2d
757, 767 (2d Cir. 1983)) (declining to convert the defendants'
motion to dismiss to one for summary judgment where
the plaintiff submitted “extensive affidavits with supporting
documents addressing exhaustion.”). For these reasons,
the Court declines to convert Defendants' motion to one
for summary judgment. See Environmental Servs., Inc. v.
Recycle Green Servs., 7 F.Supp.3d 260, 270 (E.D.N.Y. 2014)
(quoting Carione v. United States, 368 F.Supp.2d 186, 191
(E.D.N.Y. 2005) (citations omitted)) (“Federal courts have
‘complete discretion to determine whether or not to accept the
submission of any material beyond the pleadings’ offered in
conjunction with a Rule 12(b)(6) motion, and thus complete
discretion in determining whether to convert the motion
to one for summary judgment.”) (internal quotation marks
omitted). For purposes of judicial economy, and in fairness to
the Plaintiff, the Court will treat the motion to dismiss brought
by Defendants as a motion to dismiss under Fed. R. Civ. P.
12(b)(6).
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IV. DISCUSSION
A. Exhaustion of Administrative Remedies
1. Legal Standard Under the PLRA
The PLRA provides in relevant part that “[n]o action shall
be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). “The PLRA exhaustion
requirement ‘applies to all inmate suits about prison life,
whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some
other wrong.’ Prisoners must utilize the state's grievance
procedures, regardless of whether the relief sought is offered
through those procedures.” Espinal v. Goord, 558 F.3d 119,
124 (2d Cir. 2009) (citation omitted) (quoting Booth v.
Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958
(2001)).
In finding that the PLRA applies to all inmate actions
concerning prison life, see Porter v. Nussle, 534 U.S. 516,
532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002), the Supreme
Court “did not distinguish between pretrial and post-trial
detainees.” United States v. Khan, 540 F.Supp.2d 344, 349
(E.D.N.Y. 2007) (citing Porter, 534 U.S. at 532, 122 S.Ct.
983; George v. Morrisson-Warden, No. 6-3188, 2007 WL
1686321 (S.D.N.Y. 2007)); Baez v. Parks, No. 02-5821,
2004 WL 1052779, at *5 (S.D.N.Y. May 11, 2004) (citing
United States v. Al–Marri, 239 F.Supp.2d 366, 367–68
(S.D.N.Y. 2002); Rivera v. State of New York, No. 96 Civ.
7697, 1999 WL 13240, at *4–5 (S.D.N.Y. Jan. 12, 1999);
Samuels v. Jackson, No. 97 Civ. 2420, 1999 WL 92617,
at *2 n.3 (S.D.N.Y. Feb. 22, 1999)) (“[T]he PLRA's strict
exhaustion requirement does indeed apply in actions brought
by pretrial detainees.”). As such, similar to a convicted
prisoner, a pre-trial detainee is generally required to exhaust
his administrative remedies prior to filing an action in federal
court. See Baez, 2004 WL 1052779, at *5 (citing Porter, 534
U.S. at 532, 122 S.Ct. 983).
*10 Although the language of Section 1997(e)(a) is
mandatory, the “edict contains one significant qualifier: the
remedies must indeed be ‘available’ to the prisoner.” Ross v.
Blake, ––– U.S. ––––, 136 S.Ct. 1850, 1856, 195 L.Ed. 2d 117
(2016); Riles v. Buchanan, 656 Fed.Appx. 577, 580 (2d Cir.
2016) (“As the Supreme Court recently made clear in holding
that courts may not excuse a prisoner's failure to exhaust
because of ‘special circumstances,’ ‘mandatory exhaustion
statutes like the PLRA establish mandatory exhaustion
regimes, foreclosing judicial discretion.’ ”). “[A]side from
that exception, the PLRA's text suggests no limits on an
inmate's obligation to exhaust—irrespective of any ‘special
circumstances.’ ” Ross, 136 S.Ct. at 1856. The Second Circuit
has held that “[a]n administrative procedure is unavailable
when: (1) ‘it operates as a simple dead end—with officers
unable or consistently unwilling to provide any relief to
aggrieved inmates’; (2) it is ‘so opaque that is becomes,
practically speaking, incapable of use’; or (3) ‘prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.’ ” Riles, 656 Fed.Appx. at 580 (quoting Ross,
136 S.Ct. at 1859-60).
Despite the PLRA's strict application, the Supreme Court has
made clear that prisoners “are not required to specially plead
or demonstrate exhaustion in their complaints.” Jones v. Bock,
549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).
Rather, “failure to exhaust is an affirmative defense under
the PLRA” that must be raised and proven by defendants.
Id. “Dismissal under Rule 12(b)(6) for failure to exhaust
is thus appropriate only where nonexhaustion is apparent
from the face of the complaint.” Roland III v. Smith, 907
F.Supp.2d 385, 388 (S.D.N.Y. 2012) (citing McCoy v. Goord,
255 F.Supp.2d 233, 251 (S.D.N.Y. 2003)); see Jandres v.
Armor Health Care Inc., No. 12-3132, 2014 WL 1330655,
at *4 (E.D.N.Y. Mar. 31, 2014); see also Barrett v. Armor
Corr. Health, Inc., No. 13-1063, 2014 WL 1220756, at *5
(E.D.N.Y. Mar. 20, 2014) (quoting Rivera v. Anna M. Kross
Ctr., No. 10-8696, 2012 WL 383941, at *2 (S.D.N.Y. Feb.
7, 2012)) (citing Butler v. Suffolk Cnty., 289 F.R.D. 80, 92
(E.D.N.Y. 2013)).
2. Application to the Facts
Defendants argue that the Complaint must be dismissed on
the grounds that “there is no allegation or any indication
that [Plaintiff] brought his complaints to the attention of
NCCC officials that would have afforded them the time and
opportunity to address them.” Armor Correctional Health
Services of New York, Inc. and Sheriff Michel Sposato's
Memorandum of Law in Support of their Motion to Dismiss
the Complaint (“Defs.' Mem.”) [DE 19-2] at 10. In opposing
the motion, Plaintiff states that while at the NCCC, he
filed grievance forms and sick call requests in which he
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complained about his arm as well as other issues. Pl's. Opp'n
at 4. Plaintiff explained that he could not figure out what the
officer wrote on most of the complaint forms and there were
times when the officer informed Plaintiff that he “had to sign
the form because soon [he would] be taken to the Hospital.”
Id. at 3. Sometimes the officer would write on the form a
note that Plaintiff refused to sign it when, in fact, Plaintiff had
signed the form on an earlier date. Id. Moreover, in connection
with his discussion of the PLRA and his efforts to comply
with it, Plaintiff stated that he was transferred from a “county
holding facility” to a “federal trans[ ]ient facility, which is a
different jurisdiction, with different rules and regulations.” Id.
In their Reply, Defendants argue that Plaintiff's Opposition
fails to set forth a “meaningful rebuttal to the Defendants'
position.” Reply Memorandum of Law in Further Support
of the Defendant's Motion to Dismiss the Complaint
(“Defs.' Reply”) [DE 32] at 2. Defendants reject what they
characterize as Plaintiff's attempt to attribute any deficiencies
under the PLRA to his being transferred to a different
facility. See id. at 2. They point out that Plaintiff, by
his own “admission,” arrived at the NCCC on September
11, 2013, and was not transferred to another facility until
November 5, 2013. Id. Based on this timeline, Defendants
argue that Plaintiff had approximately two months to file a
grievance and any subsequent appeal. Id. They further note
that Plaintiff does not challenge the three-tiered prisoner
grievance procedure utilized by the NCCC which is set out in
detail in Defendants' opening papers. Id. at 3.
*11 As discussed above, Plaintiff is not required to plead
specific facts in the Complaint setting forth exhaustion.
Jones, 549 U.S. at 216, 127 S.Ct. 910; Roland v. Smith,
907 F.Supp.2d 385, 388 (S.D.N.Y. 2012) (“inmates are
not required to specially plead or demonstrate exhaustion
in their complaints.”). Therefore, to the extent Defendants
seek dismissal on the grounds that Plaintiff does not allege
that he exhausted the administrative remedies available to
him, that argument is unavailing. Dismissal is “appropriate
only where nonexhaustion is apparent from the face of the
complaint.” Zamani v. Nassau Cty., No. 14-5606, 2015 WL
9943257, at *3 (E.D.N.Y. Dec. 16, 2015) (quoting Roland
v. Smith, 907 F.Supp.2d 385, 388 (S.D.N.Y. 2012)) (citing
Cephas v. Nassau Cty. Corr. Ctr., No. 12-CV-1445, 2014
WL 537576, at *4 (E.D.N.Y. Feb. 10, 2014)) (rejecting
defendants' argument that the plaintiff “failed to exhaust
his administrative remedies in that there is no indication
or allegation that plaintiff undertook any further action
to complain of or appeal any dissatisfaction with any of
[his grievances]....”) (internal quotation marks omitted),
report and recommendation adopted, No. 14-5606, 2016
WL 393934 (E.D.N.Y. Jan. 28, 2016). Non-exhaustion has
been deemed to be apparent from the face of a Complaint
where, for example, the plaintiff explicitly alleged that his
grievance was under review by Internal Affairs at the time
the Complaint was filed, Joseph v. Nassau Cty. Corr. Facility,
No. 15-7010, 2016 WL 3033725, at *4 (E.D.N.Y. May 26,
2016), or where the Court determined, through a review of
exhibits attached to the plaintiff's Complaint, that the plaintiff
failed to properly appeal the outcome of his grievances in
accordance with the facility's protocol—the “plaintiff either
accepted the grievance coordinator's decision and did not
appeal, or refused to sign the reviewed grievance forms and
did not appeal.” Young v. Sposato, No. 12-2850, 2014 WL
109083, at *7 (E.D.N.Y. Jan. 13, 2014).
Unlike the circumstances in Joseph and Young, the Court
finds here that here non-exhaustion is not apparent from
the face of Plaintiff's Complaint. At no point does Plaintiff
affirmatively state in any of his submissions “that he failed
to follow all the required grievance procedures.” Randolph
v. N.Y.C. Dep't of Corr., No. 05-8820, 2007 WL 2660282,
at *7 (S.D.N.Y. Sept. 7, 2007), report and recommendation
adopted, No. 14-06468, 2016 WL 680822 (S.D.N.Y. Feb.
18, 2016); see, e.g., Groenow v. Deputy Warden of OBCC
Williams, No. 13-3961, 2014 WL 941276, at *4 (S.D.N.Y.
March 11, 2014). In fact, Plaintiff makes no mention in
his Complaint of the NCCC's grievance procedure or his
compliance with it, likely because the standardized 42 U.S.C.
Section 1983 complaint form utilized by pro se plaintiffs like
Mr. Villafane do not prompt the individual to discuss his
efforts to exhaust administrative remedies. It is not until his
Opposition that Plaintiff asserts he filed grievance forms and
sick call requests while detained at the NCCC. Pl's. Opp'n at
4. Plaintiff states that (1) he often could not read what the
officers wrote on the forms, (2) officers told him he had to
sign the forms since he would be taken to a hospital, and
(3) officers sometimes indicated on the form that Plaintiff
refused to sign when, according to Plaintiff, he actually did.
Id. “Where a prisoner indicates that he has taken some steps
toward exhaustion, district courts will normally not infer from
his silence that he failed to take the remaining steps that full
exhaustion would require.” Huggins v. Schriro, No. 14-6468,
2015 WL 7345750, at *3 (S.D.N.Y. Nov. 19, 2015) (citing
Rodriguez v. Warden, Metropolitan Correctional Facility,
No. 13-3643, 2015 WL 857817 at *3–4 (S.D.N.Y. Feb. 27,
2015); Randolph, 2007 WL 2660282, at *8; Groenow, 2014
WL 941276, at *3 (S.D.N.Y. March 11, 2014)); id. (quoting
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Wesley v. Muhammad, No. 05-5833, 2008 WL 123812, at
*3 (S.D.N.Y. Jan. 10, 2008)), report and recommendation
adopted, 2008 WL 236974 (S.D.N.Y. Jan. 28, 2008)(“ ‘[A]
pro se plaintiff's pleading references to various efforts that he
has made to bring alleged prison violations to the attention
of the prison authorities cannot be treated as tantamount to
an admission that he had not exhausted his remedies.’ ”); but
see Ghee v. Warden Ramos, No. 13-632, 2013 WL 7018543,
at *1–2 (S.D.N.Y. Dec. 4, 2013) (dismissing the plaintiff's
complaint where he left blank a section of the form complaint
that set forth the following: “[w]hat steps, if any, did you take
to appeal that decision? Describe all appeals to the highest
level of the grievance process[ ]”).
*12 Moreover, according to Plaintiff, he was instructed
to sign a complaint form so that he would be taken to a
hospital. Accepting this allegation as true, which the Court
must do at this juncture, it is not unreasonable to infer that
Plaintiff's request to be taken to a hospital was accepted.
Where a grievance is decided in an inmate's favor, but the
facility fails to implement the administrative decision and
there is no means of appealing that failure, then the inmate
is deemed to have fully exhausted his or her remedies for
purposes of the PLRA. See Abney v. McGinnis, 380 F.3d 663,
669 (2d Cir. 2004) (collecting cases). Plaintiff's allegations
raise questions that cannot be answered at this stage with an
undeveloped record. See Cephas, 2014 WL 537576, at *4
(quoting Gaines v. Armor Health Care, Inc., No. 12-5663,
2013 WL 6410311, at *3 (E.D.N.Y. Dec. 9, 2013)) (“Inquiries
regarding exhaustion ... ‘typically cannot be determined on an
undeveloped record.’ ”). In light of the foregoing analysis, the
Court finds that dismissal on the grounds of non-exhaustion
is inappropriate at this time. See Jandres, 2014 WL 1330655,
at *4; Joseph, 2016 WL 3033725, at *4 (citing McCoy v.
Goord, 255 F.Supp.2d 233, 249 (S.D.N.Y. 2003)) (“Where
non-exhaustion is not clear from the face of the complaint, a
defendant's motion to dismiss pursuant to 12(b)(6) is not an
appropriate vehicle.”)
B. Plaintiff's Claims Arising Under 42 U.S.C. Section
1983
Section 1983 provides as follows:
Every person who, under color of any
statute, ordinance, regulation, custom,
or usage, of any State ... subjects, or
causes to be subjected, any citizen of
the United States ... to the deprivation
of any rights, privileges, or immunities
secured by the Constitution and laws,
shall be liable to the party injured ...
42 U.S.C. § 1983. To state a claim under Section 1983, a
plaintiff must “ ‘allege that (1) the challenged conduct was
attributable at least in part to a person who was acting under
color of state law and (2) the conduct deprived the plaintiff
of a right guaranteed under the Constitution of the United
States.’ ” Rae v. Cty. of Suffolk, 693 F.Supp.2d 217, 223
(E.D.N.Y. 2010) (quoting Snider v. Dylag, 188 F.3d 51, 53
(2d Cir. 1999)); see Corneio v. Bell, 592 F.3d 121, 127 (2d
Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d
Cir. 1994)). Section 1983 does not create any independent
substantive rights but rather is a vehicle to “redress ...
the deprivation of [federal] rights established elsewhere.”
Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999) (citing
City of Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct.
2427, 85 L.Ed.2d 791 (1985), abrogated on other grounds
recognized by Collins v. City of San Diego, 841 F.2d 337 (9th
Cir. 1988); Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993)). In
addition, as discussed in greater detail below, it is well-settled
in this Circuit “that personal involvement of defendants in
alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983.” Farid v. Ellen, 593 F.3d
233, 249 (2d Cir. 2010) (quoting Farrell v. Burke, 449 F.3d
470, 484 (2d Cir. 2006)); see Pettus v. Morgenthau, 554 F.3d
293, 300 (2d Cir. 2009).
1. Section 1983 Claims against Defendant
Sposato in his Individual Capacity
Plaintiff sets forth a single allegation concerning Defendant
Michael Sposato, the Nassau County Sheriff. In the section
of Plaintiff's form Complaint entitled “Basis for Jurisdiction,”
when prompted to discuss how each defendant acted under
color of state or local law, Plaintiff responded “Armor by
denying me prop[ ]er medical care intentionally the sheriff
by allowing them to do so, and by not monitoring its medical
Dept.” Compl. § II.D. Plaintiff does not mention Defendant
Sposato in either his “Statement of Claim,” see id. § III, or his
Opposition papers. See generally, Pl's. Opp'n.
At the outset, the Court notes that a supervisory official
like Sheriff Sposato will not be found liable under Section
1983 simply by virtue of his “high position of authority.”
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Whitenack v. Armor Med., No. 13-2071, 2014 WL 5502300,
at *5 (E.D.N.Y. Oct. 30, 2014) (quoting Al–Jundi v. Estate
of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989)) (citing
Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d
107, 127 (2d Cir. 2004)) (internal quotation marks omitted);
see Morgan v. Dzurenda, No. 14-966, 2015 WL 5722723,
at *6 (D. Conn. Sept. 19, 2015) (citing Ayers v. Coughlin,
780 F.2d 205, 210 (2d Cir. 1985)) (“Supervisory officials
cannot be held liable under section 1983 solely for the
acts of their subordinates.”). Rather, liability may generally
only be predicated upon the individual defendant's personal
involvement in the purported constitutional violation. See
Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 229 (2d
Cir. 2004) (citing Back v. Hastings on Hudson Union Free
School District, 365 F.3d 107, 122 (2d Cir. 2004)); Morgan,
2015 WL 5722723, at *6 (citing Colon, 58 F.3d at 873). A
complaint asserting a § 1983 claim which does not allege
facts establishing the requisite personal involvement “fails as
a matter of law.” Gaines, 2013 WL 6410311, at *3 (citing
Costello v. City of Burlington, 632 F.3d 41, 48–49 (2d Cir.
2011)).
*13 According to the Second Circuit in Colon v. Coughlin,
personal involvement may be found when:
(1) the defendant participated directly
in the alleged constitutional violation,
(2) the defendant, after being informed
of the violation through a report or
appeal, failed to remedy the wrong,
(3) the defendant created a policy or
custom under which unconstitutional
practices occurred, or allowed the
continuance of such a policy or
custom, (4) the defendant was grossly
negligent in supervising subordinates
who committed the wrongful acts, or
(5) the defendant exhibited deliberate
indifference to the rights of inmates
by failing to act on information
indicating that unconstitutional acts
were occurring.
58 F.3d at 873 (citing Wright v. Smith, 21 F.3d 496, 501
(2d Cir. 1994)); Donohue v. Manetti, No. 15-636, 2016 WL
740439, at *3 (E.D.N.Y. Feb. 24, 2016) (quoting Colon, 58
F.3d at 873); Barrett, 2014 WL 1220756, at *4 (quoting
Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996)). Some
courts have questioned the continuing applicability of these
factors based upon the heightened pleading requirements
set forth in Iqbal. See Bellamy v. Mount Vernon Hosp.,
No. 07-1801, 2009 WL 1835939, at *6 (S.D.N.Y. June
26, 2009) (“Only the first and part of the third Colon
categories pass Iqbal's muster—a supervisor is only held
liable if that supervisor participates directly in the alleged
constitutional violation or if that supervisor creates a policy
or custom under which unconstitutional practices occurred.”),
aff'd 387 Fed.Appx. 55 (2d Cir. 2010); Newton v. City of New
York, 640 F.Supp.2d 426, 448 (S.D.N.Y. 2009) (“[P]assive
failure to train claims pursuant to section 1983 have not
survived” post-Iqbal.). However, the Second Circuit has not
yet ruled on the issue. See Grullon v. City of New Haven,
720 F.3d 133, 139 (2d Cir. 2013) (noting that Iqbal “may
have heightened the requirements for showing a supervisor's
personal involvement with respect to certain constitutional
violations,” but declining to resolve the issue); see also
Marom v. City of New York, No. 15-2017, 2016 WL 916424,
at *15 (S.D.N.Y. Mar. 7, 2016) (citing Reynolds v. Barrett,
685 F.3d 193, 205 n.14 (2d Cir. 2012) (acknowledging that
Iqbal has “engendered conflict within our Circuit about the
continuing vitality of the supervisory liability test set forth
in Colon v. Coughlin”)); Raspardo v. Carlone, 770 F.3d 97,
117 (2d Cir. 2014) (declining to decide the “contours of the
supervisory liability test” post Iqbal), on reconsideration in
part, No. 15-CV-2017, 2016 WL 5900217 (S.D.N.Y. July
29, 2016). Notwithstanding the Second Circuit's silence, the
majority of courts considering the issue have determined that
“even after the U.S. Supreme Court's decision in Iqbal, these
‘categories supporting personal liability of supervisors still
apply as long as they are consistent with the requirements
applicable to the particular constitutional provision alleged
to have been violated.’ ” Hernandez v. Goord, No. 01-9585,
2013 WL 2355448, at *7 (S.D.N.Y. May 29, 2013) (quoting
Qasem v. Toro, 737 F.Supp.2d 147, 152 (S.D.N.Y. 2010))
(citing Iqbal, 556 U.S. at 676, 129 S.Ct. 1937); see Ramey
v. Perez, No. 13-00017, 2014 WL 407097, at *4 (S.D.N.Y.
Jan. 31, 2014) (“Colon remains the standard in this Circuit
for deciding whether personal involvement by supervisory
officials is sufficiently alleged in the context of the Eighth
Amendment.”); see also Morgan v. Comm'r Dzurenda, No.
14-966, 2015 WL 5722723, at *7 (D. Conn. Sept. 29, 2015)
(“Because it is unclear as to whether Iqbal overrules or
limits Colon, the Court will continue to apply the categories
for supervisory liability set forth by the Second Circuit.”);
Mercier v. Kelly, No. 10-7951, 2013 WL 4452486, at *6
(S.D.N.Y. Aug. 19, 2013) (“[T]he majority view is where
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‘the constitutional claim does not require a showing of
discriminatory intent ... the personal involvement analysis
set forth in Colon v. Coughlin may still apply.’ ”) (quoting
Shepherd v. Powers, No. 11 Civ. 6860, 2012 WL 4477241,
at *10 (S.D.N.Y. Sept. 27, 2012)) (internal quotation marks
omitted) (citing Bertuglia v. City of New York, 839 F.Supp.2d
703, 720–23 (S.D.N.Y. 2012); Malik v. City of New York, No.
11-6062, 2012 WL 3345317, at *14–15 (S.D.N.Y. Aug. 15,
2012)); Martinez v. Perilli, No. 09-6470, 2012 WL 75249,
at *4 (S.D.N.Y. Jan. 5, 2012) (“[T]he five Colon categories
still apply after Iqbal.”) (citing Qasem, 737 F.Supp.2d at
151; D'Olimpio v. Crisafi, 718 F.Supp.2d 340, 345–48
(S.D.N.Y. 2010), aff'd, 462 Fed.Appx. 79 (2d Cir. 2012);
Sash v. United States, 674 F.Supp.2d 531, 544 (S.D.N.Y.
2009)). Using the principles set forth above, the Court will
now consider whether Plaintiff has established the requisite
personal involvement of Defendant Sposato in the underlying
circumstances.
*14 Plaintiff alleges that Defendant Sposato allowed Armor
to deny him medical care and failed to monitor the “medical
department.” See Compl. § II.D. As to the first and
second Colon factors set forth above, Plaintiff does not
allege that Defendant Sposato was directly involved in the
alleged constitutional violations or that he failed to remedy
the constitutional violations “after being informed of the
violation through a report or appeal.” Plaintiff may still
satisfy the personal involvement requirement by establishing
that the defendant was responsible for creating a policy or
custom under which unconstitutional practices occurred, or
allowed the continuance of such a policy or custom, as
set forth in the third Colon factor. “As currently drafted,
the Complaint merely discusses the constitutional violations
against Plaintiffs, which is insufficient to assert a policy
or custom.” See Tretola v. D'Amico, No. 13-5705, 2014
WL 2957523, at *8 (E.D.N.Y. July 1, 2014); see also, e.g.,
Youngblood v. City of N.Y., No. 15-3541, 2016 WL 3919650,
at *5 (S.D.N.Y. June 27, 2016) (holding that the pro se
“Plaintiff's bare allegations of the existence of a custom
and policy and his conclusory assertion that the policy was
linked to his constitutional injuries are insufficient to state
a Monell claim[ ]”); Carpinone v. City of New York, No.
11-2074, 2012 WL 760073, at *2 (S.D.N.Y. Mar. 9, 2012)
(“Plaintiff offers no facts which would render plausible his
allegations of a policy or custom within the New York
City Police Department that was affirmatively linked to
the purported constitutional violations he suffered.”). Here,
Plaintiff Villafane has therefore failed to establish personal
involvement of Defendant Sposato through the third Colon
factor.
Turning to the fourth Colon factor—which appears to be
the factor most directly implicated by Plaintiff's allegations
—Plaintiff claims that “the defendant was grossly negligent
in supervising subordinates who committed the wrongful
acts.” Samuels v. Fischer, 168 F.Supp.3d 625, 638 (S.D.N.Y.
2016) (quoting Colon, 58 F.3d at 873). Courts have held that
in order to establish personal involvement in this context,
a plaintiff must demonstrate that the defendant “knew or
should have known that there was a high degree of risk
that his subordinates would behave inappropriately, but either
deliberately or recklessly disregarded that risk by failing to
take action that a reasonable supervisor would find necessary
to prevent such a risk, and that failure caused a constitutional
injury to Plaintiff.” Samuels, 168 F.Supp.3d at 638 (quoting
Frederick v. Sheahan, No. 10-6527, 2014 WL 3748587, at
*8 (W.D.N.Y. July 29, 2014)) (citing Kucera v. Tkac, No.
12-264, 2013 WL 1414441, at *6 (D. Vt. Apr. 8, 2013))
(explaining that the defendants' alleged failure to supervise
will satisfy the fourth Colon factor if the defendants “knew or
should have known that there was a high degree of risk that
his subordinates would behave inappropriately ... but either
deliberately or recklessly disregarded that risk by failing to
take action that a reasonable officer would find necessary to
prevent such a risk[.]”); Brooks v. Prack, 77 F.Supp.3d 301,
313 (W.D.N.Y. 2014) (quoting Frederick, 2014 WL 3748587,
at *8).
Plaintiff has not provided any salient facts regarding
Defendant Sposato's state of mind—whether he knew or
should have known that his subordinates were engaging
in conduct which violated Plaintiff's or other inmate's
constitutional rights. Plaintiff merely makes the conclusory
allegation that Defendant Sposato “allowed” Armor to engage
in the purportedly unconstitutional conduct. Moreover, even
if Plaintiff had alleged that Sheriff Sposato was aware of
Armor's inaction through his receipt of complaints and failed
to act on those complaints, Plaintiff's allegations might
still fail to establish the requisite personal involvement.
See Tafari v. McCarthy, 714 F.Supp.2d 317, 359 (N.D.N.Y.
2010) (quoting Rivera v. Goord, 119 F.Supp.2d 327, 344–
45 (S.D.N.Y. 2000)) (citing Watson v. McGinnis, 964 F.Supp.
127, 130 (S.D.N.Y. 1997)) (“A prisoner's allegation that
a supervisory official failed to respond to a grievance is
insufficient to establish that the official ‘failed to remedy the
violation after learning of it through a report or appeal’ or
‘allowed the custom or policy to continue after learning of
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it.’ ”). As an example, in Whitenack v. Armor Medical, No.
13-2071, 2014 WL 5502300 (E.D.N.Y. Oct. 30, 2014), the
incarcerated pro se plaintiff filed a civil rights Complaint in
the Eastern District of New York under 42 U.S.C. § 1983
against Armor, Sheriff Sposato, Nassau County and “the
Clerk of the Court of the Nassau County D.A.’s office.” Id.
at *1. As to Sheriff Sposato, plaintiff Whitenack alleged that
Sposato failed to “provid[e] medical needs, even after they
learned, through grievances, that Armor was not providing
proper medical care” and that he “allows Armor to continue
practicing [ ] in the [NCCC] * * *.” Id. at *6 (alterations in
original). The court in Whitenack held that “such allegations
are insufficient to impose Section 1983 liability upon Sheriff
Sposato in a supervisory capacity.” Id. (collecting cases). The
court added that “[s]ince plaintiff ‘has pled no facts, beyond
[Sheriff Sposato's] presumed receipt of [grievances] and [his]
* * *position[ ] atop the [NCCC], implicating [him] in any
violation described in [his] [amended] complaint [,] [he] has
* * * failed to plausibly plead [Sheriff Sposato's] personal
involvement in any infringement of [his] constitutional
rights.’ ” Id. at *6 (alterations in original) (quoting Vogelfang
v. Capra, 889 F.Supp.2d 489, 502 (S.D.N.Y. 2012)). On these
grounds, the court granted the defendants' motion seeking
dismissal of the plaintiff's Section 1983 claim against Sheriff
Sposato. Id.
*15 The Court also notes that Plaintiff fails to set forth any
detail regarding how Defendant Sposato failed to supervise
his subordinates or which subordinates he failed to supervise.
See Brooks, 77 F.Supp.3d at 313. “[T]he mere failure to
supervise would not be sufficient to establish liability under §
1983.” Tyler v. Dalsheim, No. 82-2467, 1985 WL 554, at *1
(S.D.N.Y. Apr. 24, 1985); McRae v. Gentile, No. 914-00783,
2015 WL 7292875, at *5 (N.D.N.Y. Oct. 20, 2015) (quoting
White v. Fischer, No. 09-240, 2010 WL 624081, at *6, 2010
U.S. Dist. LEXIS 15492, at *19 (N.D.N.Y. Feb. 18, 2010))
(citing Pettus v. Morgenthau, 554 F.3d 293, 300 (2d Cir.
2009)) (“ ‘Vague and conclusory allegations that a supervisor’
negligently failed to [ ] supervise subordinate employees do
not suffice to establish personal involvement so as to give rise
to personal liability.”), report and recommendation adopted,
No. 914-783, 2015 WL 7300540 (N.D.N.Y. Nov. 18, 2015).
The Court finds that Plaintiff's claims against Defendant
Sposato fare no better under the fifth Colon factor: “the
defendant exhibited deliberate indifference to the rights of
inmates by failing to act on information indicating that
unconstitutional acts were occurring.” Colon, 58 F.3d at
873. For example, in Holland v. City of New York, the
pro se plaintiff alleged that two individual defendants,
Commissioner Schriro and Warden Perrino, “ ‘pursued a
policy and custom of deliberate indifference’ in the ‘hiring,
training and supervision of’ Jennings and the correction
officer defendants.” See Holland v. City of New York, 197 F.
Supp. 529, 551 (2016). The court determined that plaintiff
Holland's claims failed to satisfy the third, fourth and fifth
Colon factors. Id. In doing so, the court explained that
“[t]o the extent that the complaint attempts to assert a
failure-to-supervise claim, moreover, it lacks any hint that
[Schriro and Perrino] acted with deliberate indifference to the
possibility that [their] subordinates would violate [Holland's]
constitutional rights.” Holland, 197 F.Supp. at 551 (quoting
Pettus v. Morgenthau, 554 F.3d 293, 300 (2d Cir. 2009)).
Likewise, in Erdogan v. Nassau County, this Court found the
following allegations to be conclusory:
Specifically, Plaintiff alleges that the “Defendant
supervisors,” including the Proposed Defendants, “were
personally involved in both the deprivation of Ms.
Erdogan's constitutional rights and in creating or
condoning the policy or custom of failing to take
preventative and remedial measures to guard against such
constitutional deprivations.” PAC ¶ 54. Plaintiff further
maintains that (i) the Defendant supervisors were reckless
in their failure to supervise Mark Barber, and knew or
should have known that Barber was sexually abusing
female inmates and that the conduct against Plaintiff was
likely to occur; and (ii) the failure of the supervisory
defendants to train, supervise, and discipline Barber
amounted to gross negligence. Id. ¶¶ 55–57.
No. 10-5837, 2014 WL 1236679, *16 (E.D.N.Y. March 25,
2014). As a result, this Court held the plaintiff failed to
establish that the defendants were deliberately indifferent or
grossly negligent in supervising subordinates. Id. In addition,
the plaintiff in Erdogan failed to set forth “sufficient factual
averments as required under Iqbal.” Id. at 16 (collecting
cases). Here, too, Plaintiff fails to set forth “sufficient factual
averments” to support a claim for deliberate indifference.
Plaintiff “must do more than plead ‘[c]onclusory allegations
or legal conclusions masquerading as factual conclusions[.]’
” Andino v. Fischer, 698 F.Supp.2d 362, 376 (quoting
Gebhardt v. Allspect, Inc., 96 F.Supp.2d 331, 333 (S.D.N.Y.
2000)) (second alteration added). Since Plaintiff has failed
to meet this standard, the Complaint, as currently drafted,
fails to allege Defendant Sposato's personal involvement—a
deficiency that is fatal to Plaintiff's claim. Huggins, 2015 WL
7345750, at *5.
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2. Section 1983 Claims against Defendant
Sposato in his Official Capacity
*16 Since Plaintiff did not explicitly state that he is suing
Defendant Sposato in his individual capacity, the Court will
also consider whether Plaintiff has stated a claim against
Defendant Sposato in his official capacity as Sheriff of
Nassau County. In this regard, the Court points out that “an
official-capacity suit is, in all respects other than name, to be
treated as a suit against the [governmental] entity [of which
the officer is an agent].” Stancati v. Cty. of Nassau, No.
14-2694, 2015 WL 1529859, at *2 (E.D.N.Y. Mar. 31, 2015)
(citing Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct.
3099, 3105, 87 L.Ed.2d 114 (1985) (alterations in original);
Castanza v. Town of Brookhaven, 700 F.Supp.2d 277, 283–
84 (E.D.N.Y. 2010)). Therefore, a suit against Defendant
Sposato in his official capacity is a suit against the Nassau
County Sheriff's Department. It is well established, however,
that as an “administrative arm of a municipality,” the Nassau
County Sheriff's Department is not a suable entity. Campbell
v. Sposato, No. 15-1958, 2015 WL 9267222, at *4 (E.D.N.Y.
Nov. 17, 2015) (citing Nassau County Charter, DE [14–
2], art. XX, §§ 2001, 2003), report and recommendation
adopted, No. 15-1958, 2015 WL 9273951 (E.D.N.Y. Dec.
16, 2015). Unlike the Nassau County Sheriff's Department,
Nassau County itself is a suable entity. However, for the same
reasons that Plaintiff has failed to set forth a claim against
Armor, which is discussed in greater detail below, Plaintiff's
Complaint fails to establish a claim for municipal liability.
3. Section 1983 Claims against Armor
“Armor is a private company that provides medical services
for inmates at the [NCCC] pursuant to a contract with the
Nassau County Sheriff's Department.” Declaration of John J.
Doody in Support of Defendant Armor's Motion to Dismiss
(“Doody Decl.”) [19-1] ¶ 3. Generally, to state a claim under
Section 1983, the challenged conduct must be attributable
at least in part to a person who was acting under color
of state law. Zamani v. Nassau Cty., No. 14-5606L, 2015
WL 9943257, at *4 (E.D.N.Y. Dec. 16, 2015) (quoting
Hawkins v. Nassau Cty. Corr. Facility, 781 F.Supp.2d 107,
111 (E.D.N.Y. 2011)), report and recommendation adopted,
No. 14-5606, 2016 WL 393934 (E.D.N.Y. Jan. 28, 2016).
However, “a private employer such as Armor may be held
liable under Section 1983 for the acts of its employees
where the unconstitutional act was authorized or undertaken
pursuant to the official policy of the private entity employer
and the employer was jointly engaged with state officials
or its conduct is chargeable to the state.” Gaines, 2013 WL
6410311, at *3; see Hollander v. Copacabana Nightclub, 624
F.3d 30, 33 (2d Cir. 2010); see generally Filarsky v. Delia,
566 U.S. 377, 389-90, 132 S.Ct. 1657, 1661-65, 182 L.Ed.2d
662 (2012); see also Zamani, 2015 WL 9943257, at *5 (citing
Rojas v. Alexander's Dep't Store, Inc., 924 F.2d 406, 408 (2d
Cir. 1990)); Cephas, 2014 WL 537576, at *4 (quoting Gaines,
2012 WL 5438931, at *3) (“ ‘Thus, a private employer acting
under color of state law may be held liable under Section 1983
for the acts of its employees where the unconstitutional act
was authorized or undertaken pursuant to the official policy
of the private entity employer and the employer was jointly
engaged with state officials or its conduct is chargeable to the
state.’ ”); Briel v. Sposato, No. 12-2868, 2012 WL 3697806,
at *5 (E.D.N.Y. Aug. 21, 2012).
In the instant case, Armor is the “medical arm” of the
NCCC where Plaintiff was detained. See Cephas, 2014 WL
537576, at *5. The Court will therefore assume for purposes
of deciding the instant motion that Armor was acting under
color of state law in rendering medical services to Plaintiff
at the NCCC. Cherry v. Spoato [sic], No. 15-1832, 2015 WL
2089588, at *3 (E.D.N.Y. May 5, 2015); Feder v. Sposato, No.
11-193, 2014 WL 1801137, at * 6 (E.D.N.Y. May 7, 2014)
(quoting West v. Atkins, 487 U.S. 42, 54, 108 S.Ct. 2250, 101
L.Ed.2d 40 (1988)) (“Because Armor was hired to fulfill the
state's constitutional obligation to provide necessary medical
care for its inmates, [it][was] ‘acting under the color of state
law’ for purposes of Section 1983”).
*17 As referenced above, there is no respondeat superior
liability for § 1983 claims. Monell v. Dep't of Soc. Servs.,
436 U.S. 658, 691–94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978);
Southerland v. City of N.Y., 681 F.3d 122, 137 (2d Cir.
2012) (quoting Monell, 436 U.S. at 691-94, 98 S.Ct. 2018).
Since Plaintiff does not assert claims against any individual
employee or official of Armor, Armor may be liable under §
1983 only if Plaintiff “proves that action pursuant to official ...
policy of some nature caused a constitutional tort.” Grafton
v. Cty. of Nassau, No. 15 CV 4564, 2016 WL 8711072, at
*9 (E.D.N.Y. July 15, 2016) (emphasis in original) (citing
Rojas v. Alexander's Dep't Store, Inc., 924 F.2d 406, 408-09
(2d Cir. 1990); Green v. City of New York, 465 F.3d 65, 82
(2d Cir. 2006)); Cofield v. Armor Correctional Health Inc.,
No. 12-1394, 2013 WL 2416318, at *4 (E.D.N.Y. May 31,
2013) (citing Rojas, 924 F.3d 408). “Although Monell dealt
with municipal employers, its rationale has been extended
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to private businesses [acting under color of state law].”
Rojas, 924 F.2d at 409; see also Bektic–Marrero v. Goldberg,
850 F.Supp.2d 418, 432 (S.D.N.Y. 2012) (collecting cases)
(holding that Monell has been extended to private Section
1983 defendants acting under color of state law).
Here, Plaintiff has not plausibly alleged facts showing that the
constitutional deprivations he alleges resulted from an official
policy or custom of Armor. In particular,
Plaintiff has not alleged facts from
which to reasonably infer: (1) the
existence of a formal policy to
deny inmates at the NCCC, including
himself, their ‘basic medical needs’
which is officially endorsed by Armor;
(2) actions taken or decisions made by
Armor policymaking officials which
caused the alleged violation of his
civil rights ...; (3) an Armor practice
so persistent and widespread as to
practically have the force of law; or
(4) a failure by Armor policymakers
to properly train or supervise their
subordinates, amounting to ‘deliberate
indifference’ to the rights of those who
come in contact with their employees.
Whitenack, 2014 WL 5502300, at *9; see, e.g., Barrett, 2014
WL 1220756, at *5 (dismissing claims against Armor where
the plaintiff “neither alleged that an Armor employee violated
his constitutional rights, nor ... alleged a single fact to support
an inference that any action resulted from an official policy
or custom”).
The Court turns to prevailing Second Circuit case law
involving civil rights complaints to demonstrate the factual
averments and evidentiary support needed to satisfy the
pleading requirements set forth in Iqbal. In Kucharczyk
v. Westchester County, the pro se plaintiff alleged in his
complaint “a Monell claim for [a] pattern due to the fact that
there [are] several claims pending in this court based on the
same facts [he] allege[s] in [the instant] [C]omplaint.” 95
F.Supp.3d 529, 543 (S.D.N.Y. 2015) (alterations in original).
In support of his claim, the plaintiff attached to his complaint
a copy of a report issued by the Civil Rights Division of the
United States Department of Justice which memorialized the
department's findings resulting from an investigation of the
correctional facility where the plaintiff was detained.
The court in Kucharczyk explained that “[t]he Second Circuit
and the district courts within the Second Circuit have held
that a plaintiff's citation to a few lawsuits involving claims
of alleged [constitutional violations] is not probative of the
existence of an underlying policy by a municipality ... or
department of corrections.” Id. (quoting Ameduri v. Village
of Frankfort, 10 F.Supp.3d 320, 341 (N.D.N.Y. 2014))
(collecting cases). “Some courts, however, have found that
other lawsuits identified by a plaintiff that concern the
same practice and policy at issue in the complaint permit a
plausible inference of deliberate indifference.” Id. (collecting
cases). In Kucharczyk, the court concluded that regardless
of which approach it adopted, the plaintiff's failure to name
the cases and indicate how many were pending rendered his
statement conclusory and the court would have to disregard
it on that grounds. Id. Notwithstanding this deficiency, the
court determined that the plaintiff had sufficiently alleged a
custom or practice by virtue of the DOJ Report appended
to his complaint. Id. According to the report, the facility
“ ‘ha[d] a pattern of failing to ... provide inmates with
adequate medical ... care,” which “violate[d] WCJ inmates'
constitutional rights.’ ” Id. The report further stated that
“ ‘[a]lthough WCJ has instituted a policy for submitting
grievances, it is not consistently implemented or effectively
publicized,’ which posed a risk to inmates that perceived that
their serious health needs were being unmet.” Id. Moreover,
the court noted, the report was released several years prior to
the commencement of the suit, so the facility's policymakers
were well aware of the deficiencies. Id. at 544-545. The court
held that based on this information, the plaintiff adequately
alleged “a widespread practice or policy of which Defendants
were aware to survive Defendants' Motion to Dismiss his
Monell claim.” Id. at 544.
*18 Although the DOJ report persuaded the court in
Kucharczyk that the plaintiff had successfully pleaded a
Monell claim, this Court notes that submission of such a
report is not necessarily required to satisfy the Iqbal pleading
standard. For example, in Donohue v. Manetti, No. 15-636,
2016 WL 740439, at *1 (E.D.N.Y. 2016), the pro se plaintiff
filed a Section 1983 action against Armor, two individual
medical professionals and Sheriff Sposato for failing to
provide the plaintiff with adequate medical care in violation
of the Eighth and Fourteenth Amendments. More specifically,
the plaintiff there alleged that he was denied previously
prescribed psychotropic medication, and instead of giving
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him his prescribed pain medication, the defendant nurse
deliberately gave him medication to which he was allergic.
Id. at *1-2. The defendants in Donohue argued that “two
isolated incidents are insufficient to be deemed a policy or
custom for the purpose of § 1983 liability.” Id. at *5. The
court rejected the defendants' argument, finding that these
incidents, in combination with the comments alleged to have
been made to the plaintiff by Armor staff (i.e. “things are
different now and we don't hand out pills anymore—deal
with it,” it is “Armor's ‘policy’ not to ‘write’ (prescribe) pain
medication other than N.S.A.I.D.S.” and “I wish you would
have died”) “support[ed] an inference of a policy or custom
to deny inmates adequate medical care.” Id. at *6.
Here, Plaintiff's complaint “concerns only allegedly
unconstitutional conduct to which he was subjected.” Joseph
v. Nassau County Correctional Facility, No. 15-7010, 2016
WL 3033725 (E.D.N.Y. May 26, 2016). Moreover, Plaintiff
does not set forth any facts which could give rise to an
inference that the constitutional deprivations suffered by
Plaintiff arose from an official policy or custom. On this
basis, and for the foregoing reasons, this Court respectfully
recommends to Judge Bianco that Defendants' motion to
dismiss be GRANTED to the extent it seeks dismissal
of Plaintiff's § 1983 claim against Defendant Sposato and
Defendant Armor.
C. Plaintiff's Claim for Deliberate Indifference to
Medical Needs
Because the Court is recommending to Judge Bianco that the
Amended Complaint be dismissed based on Plaintiff's failure
to state a valid § 1983 claim against the Defendants, the Court
would not normally address whether Plaintiff has adequately
stated a claim that Defendants violated his constitutional
rights by acting with deliberate indifference to his serious
medical needs. However, this Court is also recommending
to Judge Bianco that Plaintiff be granted leave to amend his
pleadings. Therefore, the Court will now assess Plaintiff's
deliberate indifference claim.
1. Legal Standard for Deliberate Indifference
Plaintiff asserts that at the time of his arrest and arrival at
NCCC he had a broken left forearm. Compl. § III.C. Despite
repeatedly notifying Defendants of his painful condition,
Plaintiff contends that Defendants failed to produce him
for the necessary surgery and failed to provide him with
prescribed pain medication. Id. Plaintiff does not specify in
his Complaint whether he was a pre-trial detainee or convicted
inmate during the time at issue. Given the temporal proximity
between Plaintiff's arrest and the purported unconstitutional
conduct, the Court finds it is not unreasonable to assume that
Plaintiff was a pre-trial detainee for at least some portion
of the time at issue. See generally Compl. The Eighth
Amendment, which prohibits cruel and unusual punishment,
governs a convicted prisoner's claims of inadequate medical
care. See Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017)
(citing 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); City of Revere v. Mass. Gen. Hosp.,
463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983));
U.S. Const. amend. XIV (No “State [shall] deprive any person
of life, liberty, or property, without due process of law[.]”).
However, a pretrial detainee's claim for inadequate medical
care is governed by the Fourteenth Amendment's Due Process
Clause. Id. Since a pre-trial detainee has not been convicted
of any crime, the standard applied is different. Swanson
v. City of New York, No. 16-3231, 2017 WL 3130322, at
*6 (E.D.N.Y. July 21, 2017) (quoting Darnell, 849 F.3d at
29); see City of Revere v. Mass. Gen. Hosp., 463 U.S. 239,
244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983) (“The Due
Process Clause ... require[s] the responsible government or
governmental agency to provide medical care to [pretrial
arrestees] ... who have been injured while being apprehended
by the police.”). “[W]hile the Supreme Court has not precisely
limned the duties of a custodial official under the Due
Process Clause to provide needed medical treatment to a
pretrial detainee, it is plain that an unconvicted detainee's
rights are at least as great as those of a convicted prisoner.”
Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996) (citing
City of Revere, 463 U.S. at 244, 103 S.Ct. 2979; Bryant v.
Maffucci, 923 F.2d 979, 983 (2d Cir. 1991)) (“[T]he due
process rights of a ... [pretrial detainee] are at least as great as
the Eighth Amendment protections available to a convicted
prisoner[.]”). Accordingly, irrespective of which Amendment
is utilized to analyze a plaintiff's claim for inadequate
medical care, the plaintiff must show that the defendants
were deliberately indifferent to his or her serious medical
needs, which involves a two-pronged analysis. Grimmett v.
Corizon Med. Assocs. of New York, No. 15-7351, 2017 WL
2274485, at *3 (S.D.N.Y. May 24, 2017). First, “the alleged
deprivation of adequate medical care must be ‘sufficiently
serious.’ ” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir.
2006) (quoting Farmer v. Brennan, 511 U.S. 825, 832, 844,
114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)); Spavone v. N.Y.
State Dep't of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013)
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(quoting Salahuddin, 467 F.3d at 279). Second, the plaintiff
must show that the defendant acted with a “sufficiently
culpable state of mind.” Chance v. Armstrong, 143 F.3d 698,
702 (2d Cir. 1998) (quoting Hathaway v. Coughlin, 37 F.3d
63, 66 (2d Cir. 1994)); see Salahuddin, 467 F.3d at 279-81.
*19 Prior to the Second Circuit's decision in Darnell
v. Pineiro, 849 F.3d 17, 21 n.3, 29 (2d Cir. 2017), the
analysis under the second prong was deemed to be identical
to the first regardless of whether the plaintiff's claim was
brought under the Eighth Amendment or the Fourteenth
Amendment: the plaintiff had to prove that the defendant
official was subjectively aware of the harms associated with
the constitutional deprivation. Darnell, 849 F.3d at 32 (citing
Farmer v. Brennan, 511 U.S. 825, 836-37, 114 S.Ct. 1970, 128
L.Ed.2d 811 (1994)). However, in Darnell, the Second Circuit
altered the analysis in light of the Supreme Court's decision in
Kingsley v. Hendrickson, ––– U.S. ––––, 135 S.Ct. 2466, 192
L.Ed.2d 416 (2015). In Kingsley, 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,’ ” Darnell, 849
F.3d at 21 (citing Kingsley, 135 S.Ct. at 2473), “reject[ing]
the requirement that ... 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 21 (citing Kingsley, ––– U.S. ––––,
135 S.Ct. 2466, 2475, 192 L.Ed.2d 416). In other words,
after Kingsley, “rather than ask whether the charged official
‘kn[ew] of and disregard[ed] an excessive risk to inmate
health or safety,’ courts are to instead determine whether the
official ‘knew, or should have known’ that his or her conduct
‘posed an excessive risk to health or safety.’ ” Lloyd v. City of
New York, 246 F.Supp.3d 704, 718 (S.D.N.Y. 2017). The court
in Darnell explained that the second prong, which had been
referred to as the “subjective prong,” is more appropriately
described as the “mens rea prong” or “mental element prong.”
Darnell, 849 F.3d at 32 (internal quotation marks omitted).
The Second Circuit has held that Kingsley is applicable
beyond the context of excessive force claims. Id. at 35-36
(citing Castro v. County of Los Angeles, 833 F.3d 1060, 1070
(9th Cir. 2016) (en banc)). District Courts in this circuit
have applied Kingsley to claims for deliberate indifference to
medical needs. See e.g., Grimmett v. Corizon Med. Assocs. of
New York, No. 15-7351, 2017 WL 2274485, at *4 (S.D.N.Y.
May 24, 2017); Narvaez v. City of New York, No. 16-1980,
2017 WL 1535386, at *2 (S.D.N.Y. Apr. 17, 2017); Lloyd
v. City of New York, 246 F.Supp.3d 704, 718 (S.D.N.Y.
2017) (“The reasoning of Darnell applies equally to claims
of deliberate indifference to serious medical needs under
the Fourteenth Amendment.”); Feliciano v. Anderson, No.
15-4106, 2017 WL 1189747, at *8 (S.D.N.Y. Mar. 30,
2017); Gonzalez-Torres v. Newson, No. 17-00455, 2017 WL
2369369, at *3 (D. Conn. May 31, 2017).
The Court notes that “not every lapse in medical care is a
constitutional wrong.” Salahuddin, 467 F.3d at 279. Thus, if
the plaintiff fails to satisfy either prong as set forth in Darnell,
his or her deliberate indifference claim must be dismissed.
See Grimmett, 2017 WL 2274485, at *3; Narvaez, 2017 WL
1535386, at *5. “Moreover [ ] not every lapse in prison
medical care will rise to the level of a constitutional violation.’
” Ruiz v. Homerighouse, No. 01-0266, 2003 WL 21382896, at
*2 (W.D.N.Y. Feb. 13, 2003) (alterations in original) (quoting
Smith v. Carpenter, 316 F.3d 178, 2003 WL 115223, at *4
(2d Cir. 2003)). “[N]egligence alone is insufficient to make
out a deliberate indifference claim” under either the Eighth
Amendment or the Fourteenth Amendment. Grimmett, 2017
WL 2274485, at *5 (S.D.N.Y. May 24, 2017) (citing Darnell,
849 F.3d at 36).
b. Objective Prong
Generally, to satisfy the objective prong of the deliberate
indifference standard, a plaintiff must show “that the alleged
deprivation of medical treatment is, in objective terms,
‘sufficiently serious’—that is, the prisoner must prove that
his medical need was ‘a condition of urgency, one that may
produce death, degeneration, or extreme pain.’ ” Johnson
v. Wright, 412 F.3d 398, 403 (2d Cir. 2005) (quoting
Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998));
see Salahuddin, 467 F.3d at 279. However, where, as here,
“a prisoner receives some care, but allegedly inadequate
care, the analysis of whether there was a sufficiently serious
medical condition is more complex.” Hardy v. City of New
York, 732 F.Supp.2d 112, 128 (E.D.N.Y. 2010) (Salahuddin,
467 F.3d at 280). In such cases, “the court must focus on
whether ‘the alleged deprivation of adequate medical care
was sufficiently serious.’ ” Id. (quoting Salahuddin, 467 F.3d
at 280) (emphasis in original and alteration omitted); see,
e.g., Ferguson v. Cai, No. 11-6181, 2012 WL 2865474, at
*4 (S.D.N.Y. July 12, 2012) (quoting Edmonds v. Central
N.Y. Psychiatric Ctr., No. 10-5810, 2011 WL 3809913, at
*4 (S.D.N.Y. Aug. 25, 2011)) (collecting cases); DiChiara
v. Wright, No. 06-6123, 2011 WL 1303867, at *6 (E.D.N.Y.
Mar. 31, 2011). “[I]f the prisoner is receiving on-going
treatment and the offending conduct is an unreasonable
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delay or interruption in that treatment, the seriousness
inquiry focuses on the challenged delay or interruption
in treatment rather than the prisoner's underlying medical
condition alone.” Salahuddin, 467 F.3d at 280 (quoting Smith
v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003)) (internal
quotation marks and alterations omitted). In other words, “it's
the particular risk of harm faced by the prisoner due to the
challenged deprivation of care, rather than the severity of
the prisoner's underlying medical condition, considered in
the abstract, that is relevant” for purposes of establishing a
deliberate indifference claim. Smith, 316 F.3d at 186 (citing
Chance, 143 F.3d at 702–03); see Hardy, 732 F.Supp.2d at
128 (quoting Salahuddin, 467 F.3d at 280) (“In effect, a
court must determine ‘whether the inadequacy in medical
care [was] sufficiently serious’ by examining the harm
plaintiff was exposed to as a result of defendant's conduct.”).
“A defendant's delay in treating an ordinarily insignificant
medical condition can become a constitutional violation if
the condition worsens and creates a substantial risk of injury.
Conversely, delay in treating a life-threatening condition may
not violate the Eighth [or Fourteenth] Amendment if the lapse
does not cause any further harm beyond that which would
occur even with complete medical attention.” DiChiara, 2011
WL 1303867, at *7 (citing Graham v. Wright, No. 01–9613,
2004 WL 1794503, at *4, 2004 U.S. Dist. LEXIS 15738,
at *13 (S.D.N.Y. Aug. 9, 2004)) (internal quotation marks
omitted).
*20 To determine whether a delay in treatment is objectively
serious, the court must “look to ‘all relevant facts and
circumstances.’ ” Id. (quoting Smith, 316 F.3d at 187). In
general, “[w]here temporary delays or interruptions in the
provision of medical treatment have been found to satisfy the
objective seriousness requirement in this Circuit, they have
involved either a needlessly prolonged period of delay, or a
delay which caused extreme pain or exacerbated a serious
illness.” Ferguson v. Cai, No. 11-6181, 2012 WL 2865474, at
*4 (S.D.N.Y. July 12, 2012) (citing Salahuddin, 467 F.3d at
281; Chance, 143 F.3d at 702; Hathaway, 37 F.3d at 65, 67).
Although “the actual medical consequences that flow from
the alleged denial of care” will often “be highly relevant to
the question of whether the denial of treatment subjected the
prisoner to a significant risk of serious harm,” a deliberate
indifference claim “may be based on a defendant's conduct in
exposing an inmate to an unreasonable risk of future harm.”
Smith, 316 F.3d at 187-88 (citing Helling v. McKinney, 509
U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)) (internal
citations omitted). However, “the absence of present physical
injury will often be probative in assessing the risk of future
harm.” Id. at 188; see DiChiara, 2011 WL 1303867, at *7
(citing Smith, 316 F.3d at 187).
Here, as discussed earlier in this Report and
Recommendation, Plaintiff alleges that despite the directives
of outside medical professionals that he be immediately
produced for surgery to repair his broken left forearm, it
appears that Defendants were delayed in getting Plaintiff the
requisite medical care. Because of this delay, doctors were
forced to rebreak Plaintiff's arm and install metal plates and
screws. Plaintiff alleges that he is in constant pain and does
not have full use of his left wrist. Considering Plaintiff's
broken left forearm in the abstract, the Court finds that
it constitutes a sufficiently serious medical condition. See
Mendez v. Acting Sheriff, Nassau Cty. Corr. Ctr., No. 10-1960,
2010 WL 2629781, at *2 (E.D.N.Y. June 28, 2010) (citing
Henderson v. Doe, No. 98-5011, 1999 WL 378333 (S.D.N.Y.
June 10, 1999) (broken finger does not rise constitute a serious
injury); Neitzke v. Williams, 4910 U.S. 319, 109 S.Ct. 1827,
104 L.Ed.2d 338 (1989) (broken hip constitutes a serious
injury); Bryan v. Endell, 141 F.3d 1290, 1293 (8th Cir. 1998)
(broken hand constitutes a serious injury); Durham v. Nu'
Man, 97 F.3d 862, 869 (6th Cir. 1996) (broken arm constitutes
an “undeniably serious” injury); Benning v. Ehrits, No. 08-
CV-0815, 2009 WL 2982973, at *1 (N.D.N.Y. Sept. 14,
2009) (broken arm constitutes a serious injury); Hernandez
v. Harrison, No. 07-7489(JVS)(JC), 2008 WL 4836046, at
*13 (C.D. Cal. Oct. 29, 2008) (broken leg constitutes a
serious injury)) (broken knee rises to the level of “sufficiently
serious”); see Vining v. Dep't of Correction, No. 12-3267,
2013 WL 2036325, at *4 (S.D.N.Y. Apr. 5, 2013) (“Indeed,
numerous courts have found objectively serious injury in
cases involving injury to the hand, including broken bones.”)
(collecting cases).
Moreover, a serious medical condition has been deemed to
include “ ‘condition[s] of urgency, [ ] that may produce death,
degeneration, or extreme pain[.]’ ” Hathaway, 99 F.3d at 553
(quoting Schermerhorn v. Local 100, Transp. Workers Union
of Am., AFL-CIO, 91 F.3d 316, 320 (2d Cir. 1996)) (quotation
marks and citation omitted). “[I]t has also been interpreted
to include ‘less serious denials [of medical attention] which
cause or perpetuate pain.’ ” Vining v. Dep't of Correction,
No. 12-3267, 2013 WL 2036325, at *3 (S.D.N.Y. Apr. 5,
2013) (quoting Brock v. Wright, 315 F.3d 158, 163 (2d Cir.
2003) (citation omitted)). However, the fact that Plaintiff
suffers from a serious medical condition is not sufficient, by
itself, to sustain his deliberate indifference claim based on the
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delay of his surgery; instead, Plaintiff must allege facts which
plausibly show that the delay was objectively serious.
*21 Viewing the facts in the light most favorable to Plaintiff
and drawing every reasonable inference in his favor, the
Court cannot, at this stage in the litigation and on this record,
determine as a matter of law whether the delay in Plaintiff's
surgical procedure was objectively serious. Although Plaintiff
does not set forth the exact date upon which he ultimately
had the surgery, the Court makes the assumption based on
the information contained in the pleading that the surgery was
delayed for approximately two months.
c. Mens Rea Prong
The Court finds that Plaintiff's allegations state enough
information to satisfy the second prong of the deliberate
indifference pleading standard, which requires that
Defendants acted with a sufficiently culpable state of mind.
See Darnell, 849 F.3d at 35; see also Grimmett, 2017 WL
2274485 (quoting Chance, 143 F.3d at 702) (“Second, the
defendant must have acted with deliberate indifference, or a
‘sufficiently culpable state of mind.’ ”); Hathaway, 37 F.3d at
66. “Deliberate indifference requires more than negligence.”
Hathaway, 99 F.3d at 66 (quoting Farmer, 114 S.Ct. at 1978).
As noted, the Second Circuit in Darnell explained that in
order for a pre-trial detainee to establish a claim for deliberate
indifference under the Fourteenth Amendment's Due Process
Clause,
the pretrial detainee must prove
that the defendant-official acted
intentionally to impose the alleged
condition, or recklessly failed to act
with reasonable care to mitigate the
risk that the condition posed to the
pretrial detainee even though the
defendant-official knew, or should
have known, that the condition posed
an excessive risk to health or safety.
It follows that the defendant official need not “have subjective
awareness that the official's acts (or omissions) have subjected
the pretrial detainee to a substantial risk of harm.” Narvaez,
2017 WL 1535386, at *6 (citing Darnell, 849 F.3d at 35).
The Court must ask “whether the official ‘knew, or should
have known’ that his or her conduct ‘posed an excessive
risk to health or safety.’ ” Lloyd, 246 F.Supp.3d at 718;
Darnell, 849 F.3d at 35. A pre-trial detainee may establish
a violation of the Fourteenth Amendment where “officials
deliberately delayed care as a form of punishment, ignored
a life threatening and fast-degenerating condition for three
days, or delayed major surgery for over two years.’ ” Ford
v. Rodriguez, No. 15-4909, 2016 WL 6776345, at *4-5
(S.D.N.Y. Nov. 16, 2016) (quoting Frith v. City of New
York, 203 F.Supp.3d 386, 390 (S.D.N.Y. 2016)), report and
recommendation adopted, No. 15-4909, 2017 WL 58843
(S.D.N.Y. Jan. 5, 2017). Finally, it is well-established that
“negligence, even if it amounts to medical malpractice,
does not constitute a constitutional violation.” Thomas v.
Nassau County Correctional Center, 288 F.Supp.2d 333, 338
(E.D.N.Y. 2003) (citing Estelle v. Gamble, 429 U.S. 97, 102,
97 S.Ct. 285, 290, 50 L.Ed. 2d 251 (1976)).
Here, Plaintiff alleges that on September 14, 2013, the
examining physician at Nassau University Medical Center
advised that Plaintiff would need to be returned three days
later—on September 17, 2013—for surgery. See Compl. §
III.C. According to Plaintiff, defendants failed to do so and
also failed to give Plaintiff the prescribed pain medication.
Id. Plaintiff further contends that on September 24, 2013,
a visiting orthopedist expressed shock that Plaintiff had
not received any surgery and noted on Plaintiff's chart that
it was extremely urgent that he receive surgery. Id. On
October 9, 2013, plaintiff was transported to the Nassau
University Medical Center where he was advised that his
arm was in fact broken and that because he had not received
the necessary care his arm would have to be rebroken.
Id. Plaintiff further alleges that on November 5, 2013, he
was transferred to the Metropolitan Detention Center. Id.
Officials transferred Plaintiff to Brooklyn Medical Center and
Kingsbrook Hospital “from 2014 through 2015.” Id. It was the
Brooklyn Medical Center where Plaintiff ultimately received
the surgery he needed. Id. Doctors rebroke Plaintiff's arm and
installed two metal plates along with metal screws in his arm.
Plaintiff represented that he is in constant pain and does not
have 100% use of his left wrist. Id.
*22 Taking all of Plaintiff's allegations as true, as the Court
is required to do, and drawing all reasonable inferences in
Plaintiff's favor, the Court finds Plaintiff has sufficiently
pleaded that Defendants were fully aware Plaintiff's left
forearm was broken and that he required surgery right
away. Moreover, Defendants were notified that because they
delayed Plaintiff's treatment, Plaintiff's arm would have to
be rebroken. Yet Defendants still did not produce Plaintiff
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for surgery. Further, throughout this period of time, Plaintiff
repeatedly complained of pain but defendants refused to
provide him with the prescribed pain medication. The Court
finds that Armor knew, or should have known that its conduct
“posed an excessive risk to health or safety.” Lloyd, 246
F.Supp.3d at 718; Darnell, 849 F.3d at 35
D. Plaintiff's Fifth Amendment Claim
Because the Court recommends to Judge Bianco that the
Amended Complaint be dismissed based on Plaintiff's failure
to state a valid § 1983 claim against the Defendants, the
Court generally would not need to address whether Plaintiff
adequately alleged a violation of Plaintiff's Fifth Amendment
rights. However, in light of the fact that the Court also
recommends that Plaintiff be granted leave to amend his
pleadings, the Court will undertake a brief analysis of
Plaintiff's Fifth Amendment claim.
The Fifth Amendment states as follows:
No person shall be held to answer
for a capital, or otherwise infamous
crime, unless on a presentment or
indictment of a Grand Jury, except
in cases arising in the land or naval
forces, or in the Militia, when in
actual service in time of War or public
danger; nor shall any person be subject
for the same offence to be twice put
in jeopardy of life or limb; nor shall
be compelled in any criminal case to
be a witness against himself, nor be
deprived of life, liberty, or property,
without due process of law; nor shall
private property be taken for public
use, without just compensation.
U.S. Const. amend. V. “The Due Process Clause of the Fifth
Amendment prohibits the United States, as the Due Process
Clause of the Fourteenth Amendment prohibits the States,
from depriving any person of property without ‘due process
of law.’ ” Dusenbery v. United States, 534 U.S. 161, 167,
122 S.Ct. 694, 699, 151 L.Ed. 2d 597 (2002). Here, Plaintiff's
Complaint has been filed against a state official and a private
contractor acting under color of state law, not the federal
government. As a court in the Second Circuit has observed,
in such circumstances, “[Plaintiff's] appeal to rights secured
under the Fifth Amendment is misplaced and dismissed.”
Molina v. New York, 697 F.Supp.2d 276, 284 (N.D.N.Y. 2010).
Here, Plaintiff's Fifth Amendment claim must be dismissed,
and no amount of re-pleading will cure this problem.
E. Plaintiff's PLRA Claim and Equal Protection
Claim
Plaintiff further alleges that Defendants' conduct constitutes
a violation of the PLRA. Compl. § II.B. Plaintiff does not
specify which provision of the PLRA his claim arises under.
Since Plaintiff also asserts a violation of the Equal Protection
Clause, which prohibits discriminatory treatment, the Court
will interpret the instant claim as one under 42 U.S.C. §
1997(d), which sets forth the following prohibition: “No
person reporting conditions which may constitute a violation
under this subchapter shall be subjected to retaliation in
any manner for so reporting.” See Mumin v. Johnson, No.
07-4973, 2008 WL 976268, at *3 (E.D.N.Y. Apr. 9, 2008).
However, Section 1997(d) does not provide a plaintiff with a
private cause of action. Id. Therefore, the Court will construe
this claim as one arising under the Equal Protection Clause.
As stated in the context of Plaintiff's Fifth Amendment
claim above, the Fourteenth Amendment to the United States
Constitution sets forth prohibitions applicable to the States.
The Equal Protection Clause of the Fourteenth Amendment
states:
*23 All persons born or naturalized
in the United States, and subject to the
jurisdiction thereof, are citizens of the
United States and of the State wherein
they reside. No State shall make or
enforce any law which shall abridge
the privileges or immunities of citizens
of the United States; nor shall any State
deprive any person of life, liberty, or
property, without due process of law;
nor deny to any person within its
jurisdiction the equal protection of the
laws.
U.S. Const. amend. XIV (emphasis added). “[T]he Fourteenth
Amendment prohibits the selective adverse treatment of
individuals by government actors ‘compared with others
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similarly situated’ if such selective treatment is based on
‘impermissible considerations such as race ... or malicious or
bad faith intent to injure a person.’ ” Castro-Sanchez v. N.Y.S.
Dep't of Corr. Servs., No. 10-8314, 2012 WL 4474154, at
*3 (S.D.N.Y. Sept. 28, 2012) (quoting LeClair v. Saunders,
627 F.2d 606, 609-10 (2d Cir. 1980)). Here, Plaintiff has not
alleged that he was treated differently from other similarly
situated individuals, whether by virtue of his race, or the
fact that he filed a grievance or sick call request, or on
any other grounds. See generally, Compl. Plaintiff's PLRA/
Equal Protection Clause claim must therefore be dismissed
and this Court respectfully makes that recommendation to
Judge Bianco. See id. (quoting Phillips v. Girdich, 408
F.3d 124, 129 (2d Cir. 2005)) (“If a prisoner claims that
he received different treatment by prison officials because
of a protected characteristic, he must plead ‘that he was
treated differently than others similarly situated’ and that the
differential treatment was ‘a result of intentional or purposeful
discrimination.’ ”)
V. LEAVE TO RE-PLEAD
“When addressing a pro se complaint, a district court should
not dismiss without granting leave to amend at least once
when a liberal reading of the complaint gives any indication
that a valid claim might be stated.” Aquino v. Prudential
Life & Cas. Ins. Co., 419 F.Supp.2d 259, 278 (E.D.N.Y.
2005) (citing Thompson v. Carter, 284 F.3d 411, 419 (2d Cir.
2002) (“The liberal pleading standards applicable to pro se
civil rights complaints in this circuit require that the district
court give [plaintiff] an opportunity to flesh out his somewhat
skeletal complaints before dismissing them”)). The Second
Circuit has stated that “[w]hen a motion to dismiss is granted,
the usual practice is to grant leave to amend the complaint.”
Hayden v. Cnty. of Nassau, 180 F.3d 42, 53 (2d Cir. 1999)
(citing Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir.
1990)), overruled on other grounds by Gonzaga v. Doe,
536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002); see
Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave
[to amend] when justice so requires.”). The Court should
generally not dismiss a pro se complaint without granting
the plaintiff leave to amend if a valid claim could be stated.
Clifton v. Hra Nyc Govt, No. 16-1753, 2016 WL 4203486, at
*1 (E.D.N.Y. Aug. 9, 2016) (citing Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000)).
Even under this liberal standard, however, the court may
decline to provide the plaintiff with an opportunity to re-
plead if the court finds that the plaintiff “cannot correct the
defects in his federal claims” and therefore “any attempt to
amend the pleading ... would be futile.” Shorter v. Rice, No.
12-0111, 2012 WL 1340088, at *5 (E.D.N.Y. Apr. 10, 2012);
see Cuoco, 222 F.3d at 112 (citing Hunt v. Alliance N. Am.
Gov't Income Trust, 159 F.3d 723, 728 (2d Cir. 1998)) (“The
problem with [the plaintiff's] causes of action is substantive;
better pleading will not cure it. Repleading would thus be
futile. Such a futile request to replead should be denied.”).
*24 Based on the foregoing case law, the arguments
contained in all the motion papers, and the Court's analysis
of Plaintiff's claims set forth supra in this Report and
Recommendation, the Court recommends to Judge Bianco
that although the current allegations are deficient, there is
some “indication that a valid claim might be stated” against
Defendants Sposato and Armor. Cuoco, 222 F.3d at 112
(quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794,
795 (2d Cir. 1999)) (internal quotation marks omitted). The
Court further notes that Plaintiff did not have access to his
medical records at the time he filed the Complaint, and those
records have since been provided to Plaintiff pursuant to this
Court's May 1, 2017 Order. See DE 36. Accordingly, the
Court respectfully recommends to Judge Bianco that Plaintiff
be granted leave to re-plead his claim for individual liability
against Defendant Sposato and his Monell claim against
Armor, as well as his claim for deliberate indifference to
serious medical needs against those defendants.
Since Plaintiff is now in possession of his medical records
and legible copies of Defendants' uncited opinions, Plaintiff
can utilize the information contained in these documents in
redrafting his Complaint. 2
2 In light of Plaintiff Villafane's continued assertion
of his need to obtain the transcript of his September
2013 arraignment before Magistrate Judge Brown,
this Court secured the transcript and is attaching
a copy to this Report and Recommendation to be
served upon Plaintiff.
VI. CONCLUSION
Based on the foregoing findings, the Court respectfully
recommends to Judge Bianco that Defendants' motion to
dismiss be GRANTED, in part, and DENIED, in part. In
particular, the Court recommends that the motion be DENIED
insofar as it seeks dismissal based on Plaintiff's failure to
exhaust his administrative remedies, and that the motion
otherwise be GRANTED. The Court further recommends that
Plaintiff's Complaint be DISMISSED, without prejudice, and
with leave to amend.
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VII. OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule 72 of
the Federal Rules of Civil Procedure, the parties shall
have fourteen (14) days from service of this Report and
Recommendation to file written objections. See also Fed. R.
Civ. P. 6(a), (e). Such objections by an attorney of record shall
be filed with the Clerk of the Court via ECF. A courtesy copy
of any objections filed is to be sent to the Chambers of
the Honorable Joseph F. Bianco, and to the Chambers of
the undersigned. Any requests for an extension of time
for filing objections must be directed to Judge Bianco
prior to the expiration of the fourteen (14) day period for
filing objections. Failure to file objections will result in a
waiver of those objections for purposes of appeal. See Thomas
v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435
(1985); see also Johnson v. Woods, 426 Fed.Appx. 10, 11
(2d Cir. 2011) (citing Cephas, 328 F.3d at 107) (“A litigant's
failure to file objections to a magistrate judge's report and
recommendation, even when that litigant is proceeding pro
se, waives any challenge to the report on appeal.”); Savoie
v. Merchants Bank, 84 F.3d 52, 60 (2d Cir. 1996) (citing
McCarthy v. Manson, 714 F.2d 234, 237 n.2 (2d Cir. 1983)).
Defendants' counsel is directed to serve a copy of this
Report and Recommendation upon the pro se Plaintiff
forthwith by overnight mail and first class mail and to file
proof of such service on ECF.
SO ORDERED.
Attachment
UNITED STATES OF AMERICA,
v.
CARLOS VILLAFANE, Defendant.
13-MJ-00445 (DRH)
September 13, 2013
Central Islip, New York
TRANSCRIPT OF CRIMINAL CAUSE FOR INITIAL
APPEARANCE BEFORE THE HONORABLE GARY
R. BROWN UNITED STATES MAGISTRATE JUDGE
APPEARANCES:
For the Government: UNITED STATES ATTORNEY
BY: LARA TREINIS GATZ, ESQ. ASSISTANT U.S.
ATTORNEY
For the Defendant: GLENN OBEDIN, ESQ. 320 Carleton
Avenue #2500 Central Islip, New York 11722
*25 Court Transcriber: SHARI RIEMER, CET-805
TypeWrite Word Processing Service 211 N. Milton Road
Saratoga Springs, New York 12866
Proceedings recorded by electronic sound recording,
transcript produced by transcription service
(Proceedings began at 3:56 p.m.)
THE CLERK: Calling Case 13-MJ-445, U.S. v. Carlos
Villafane.
Counsel, please state your appearances.
MS. GATZ: Good afternoon, Your Honor. Lara Treinis Gatz
for the United States.
THE COURT: Good to see you, Ms. Gatz.
MS. GATZ: You too, Your Honor.
MR. OBEDIN: Good afternoon, Your Honor. Glenn Obedin
for Mr. Villafane.
THE COURT: Mr. Obedin, how are you, sir?
MR. OBEDIN: I'm fine. Thank you.
THE COURT: Ms. Gatz, we're here on initial appearance; is
that right?
MS. GATZ: Yes, Your Honor.
THE COURT: All right. Good. So, Mr. Villafane, I understand
we're here to go through some of your rights, talk about the
complaint, talk about the propriety of bail if any. But the first
question I have for you is have you spoken to your attorney,
have you had enough time to talk to Mr. Obedin about what's
going on here?
THE DEFENDANT: Yes, sir.
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THE COURT: Do you understand what's going on?
THE DEFENDANT: Yes, sir.
THE COURT: Good. So you've been charged in a complaint
with conspiring to distribute oxycodone. Without telling me
whether or not you did it, just tell me whether or not that you
understand that that's what the charge is.
THE DEFENDANT: Yes, sir, I understand, Judge.
THE COURT: So let's talk about statements. First of all,
you have the right to be represented by counsel. I find that
you do not have sufficient assets to afford counsel. So we
appointed Mr. Obedin, a fine member of the bar to defend you
in this action and the court will pay for his services. Do you
understand that?
THE DEFENDANT: Yes, sir, I do.
THE COURT: He remains your attorney even though the
court is paying. Do you understand?
THE DEFENDANT: Yes, sir.
THE COURT: If at any time you happen to come into some
money and you want to hire your own attorney, you have that
right too. Do you understand that?
THE DEFENDANT: Yes, sir, I do.
THE COURT: Very good. So let's go back to statements.
So you're not required to make any statements about the
matters charged in the complaint to anyone. If you've made
a statement in the past you have the right—you don't have to
continue that. If you start one in the future you don't have to
—you can stop at any time. You simply put up your hand and
say I don't want to talk about this. Do you understand that?
THE DEFENDANT: Yes, sir, I do.
THE COURT: The reason we make a big deal about
statements is because the statements that you make can be
used against you in the trial of this matter. Do you understand?
THE DEFENDANT: Yes, sir, I do.
THE COURT: And of course the fact that I say don't talk to
anybody doesn't mean don't talk to Mr. Obedin. You should
talk to your attorney. You understand that, right?
THE DEFENDANT: Yes, sir.
THE COURT: All right. Good. Very good. Ms. Gatz, what is
the Government's position on bail?
MS. GATZ: Your Honor, the Government is asking for a
permanent order of detention in this matter. The defendant
has what I can only describe as a very lengthy criminal
history. He also is a chronic substance abuser. He currently
is attending a methadone maintenance program. His heroin
problem extends back it looks like over a ten-year period.
*26 Given a combination of the instant offense, his prior
arrests and convictions, his substance abuse history and
his history of failing to comply with court directives,
specifically violations of probation and parole and release, the
Government is asking for a permanent order of detention.
I just note this is a presumption case.
THE COURT: That was my next question, Ms. Gatz. You
predicted that very well.
Mr. Obedin, what do you have to say?
MR. OBEDIN: Yes. Thank you, Your Honor. I had an
opportunity to speak to Mr. Villafane. We do not have any
type of bail package to present at this time. So I will just ask
that we retain our right to present a package if one becomes
available.
THE COURT: All right. Very good. I find that the defendant
has not rebutted the presumption in this case. I also find that I
agree with Pretrial Services that no condition or combination
of conditions that have been presented to the court would
assure the defendant's return and the safety of the community.
However, I note that this is without prejudice to presenting a
bail package should one become available.
MS. GATZ: Your Honor, I ask that you note to the jail that
he continued to receive methadone as necessary or at least
be screened to see if that's necessary given that he's regularly
taking methadone.
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THE COURT: That's an excellent idea and while we're on that
subject and I'm doing a medical order anyway, Mr. Obedin,
is there any other medical conditions that I should alert the
jail to?
MR. OBEDIN: Yes. Thank you, Judge. Ms. Gatz jumped in
before I had an opportunity and I thank her. Mr. Villafane also
has a series of medical issues. He has various metal plates and
screws within his body that still give him trouble. He indicates
that his left wrist is broken.
THE COURT: Currently broken?
MR. OBEDIN: Currently broken he indicates. I'd certainly
like that checked when he gets to the facility.
THE COURT: I'm going to note there's a wrist injury because
I—
MR. OBEDIN: Yes, thank you. And whatever medication
along with the methadone would be appropriate for Mr.
Villafane given his various physical conditions.
THE COURT: Any other medications?
MS. GATZ: It appears he's still taking oxycodone.
MR. OBEDIN: Well, Mr. Villafane does have diabetes. He
does take medicine for that.
THE COURT: All right. So I'll note diabetes. I'm not going to
suggest that they give him oxycodone. I don't think that may
be the recommended course but that's just my guess.
So I'll send over a medical evaluation order which will alert
the jail authorities to those various issues.
What is your preference concerning a preliminary hearing?
MR. OBEDIN: We will waive that, Your Honor.
THE COURT: All right. Mr. Villafane, just to make sure
you understand. The Government is required to go to what's
called a preliminary hearing to present certain evidence. Your
attorney is suggesting that you're willing to waive that. Is that
right, sir?
THE DEFENDANT: Yes, sir.
THE COURT: Very good. So that will be waived.
Was there any property seized at the time of arrest?
MS. GATZ: My understanding, Your Honor, is that the
officers arrested him in his apartment. So I don't believe there
was any property on his person and I'll confirm that.
Just his belt, Your Honor.
THE COURT: Okay. Mr. Villafane, did they take anything
from you when they arrested you?
*27 THE DEFENDANT: No, sir.
THE COURT: Very good. Anything else we need to do today,
Ms. Gatz?
MS. GATZ: Nothing from the Government, Your Honor.
Thank you.
MR. OBEDIN: Nothing further, Your Honor. Thank you.
THE COURT: Good luck to you, sir. We're adjourned.
(Proceedings concluded at 4:02 p.m.)
* * * * *
I certify that the foregoing is a court transcript from an
electronic sound recording of the proceedings in the above-
entitled matter.
____________________
Shari Riemer, CET-805
Dated: August 1, 2017
All Citations
Not Reported in Fed. Supp., 2017 WL 4179855
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 102 of 175

Villafane v. Sposato
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 2:16-CV-03674
Villafane v. Sposato et al
— E.D.N.Y. June 24, 2016 Docket
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Villafane v. Sposato
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History (2)
Direct History (2)
1. Villafane v. Sposato
2017 WL 4179855 , E.D.N.Y. , Aug. 22, 2017
Report and Recommendation Adopted by
2. Villafane v. Sposato
2017 WL 4157220 , E.D.N.Y. , Sep. 15, 2017
Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 104 of 175

Villafane v. Sposato
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 105 of 175

McRae v. Gentile, Not Reported in Fed. Supp. (2015)
2015 WL 7292875
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Overruling Risk
Overruling Risk Darnell v. Pineiro, 2nd Cir., February 21, 2017
2015 WL 7292875
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Troy MCRAE, Plaintiff,
v.
C.O. GENTILE, et al., Defendants.
9:14–CV–00783 (GLS/TWD)
|
Signed October 20, 2015
Attorneys and Law Firms
Troy McRae, 06–A–3212, Southport Correctional Facility,
P.O. Box 2000, Pine City, NY 14871, pro se.
Hon. Eric T. Schneiderman, Attorney General for the State of
New York, Cathy Y. Sheehan, Esq., of Counsel, The Capitol,
Albany, NY 12224, for Defendants
ORDER AND REPORT–RECOMMENDATION
THÉRÈSE WILEY DANCKS, United States Magistrate
Judge
*1 This pro se prisoner civil rights action, commenced
by Plaintiff Troy McRae pursuant to 42 U.S.C. § 1983,
has been referred to me for Report and Recommendation
by the Honorable Gary L. Sharpe, United States District
Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule
72.3(c). Plaintiff claims that Defendants have violated his
Eighth Amendment right to be free from cruel and unusual
punishment by subjecting him to excessive force, failing
to intervene in the use of excessive force, and deliberate
indifference to his serious medical needs. (Dkt. No. 37.)
Currently pending before the Court is a motion to dismiss
Plaintiff's Amended Complaint (Dkt. No. 43) for failure to
state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6), as to Defendants Peters, Gifford, McConnell, and
Graham. 1 Plaintiff opposes the motion. (Dkt. No. 47.) For
the reasons that follow, I recommend that Defendants' motion
be granted in part and denied in part.
1 Plaintiff's Amended Complaint names eleven
Defendants, including the four moving to dismiss
here. Defendant Gentile has not moved to dismiss
the excessive force claim that Plaintiff alleges
in the Amended Complaint. The remaining six
Defendants in the Amended Complaint are other
Corrections Officers who have not yet been served.
(Dkt. No. 37 at ¶ 1.)
I. BACKGROUND
The following facts are derived from the face of the Plaintiff's
Amended Complaint (Dkt. No. 37) and are accepted as true
for the purposes of deciding the pending motion to dismiss.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Plaintiff alleges that on May 2, 2012, Defendant Corrections
Officer Gentile (“CO Gentile”) pinned his hands against
the iron bars of a cell and repeatedly punched him. (Dkt.
No. 37 at ¶ 13.) CO Gentile, along with Corrections
Officers Peters (“CO Peters”) and Gifford (“CO Gifford”)
and other unidentified Corrections Officers, then brought
Plaintiff to a single room. Id. at ¶ 14. There, CO Gentile
battered Plaintiff for fifteen minutes while CO Peters and CO
Gifford “looked on ... with delight.” Id. at ¶ 15–16. Plaintiff
immediately made Defendant Corrections Officer McConnell
(“CO McConnell”) aware of the injuries he sustained as a
result of the incident while CO McConnell was on duty
near Plaintiff's cell. Id. at ¶ 20. However, CO McConnell
ignored Plaintiff's request for medical attention. Id. Plaintiff
made Defendant Superintendent Graham (“Graham”) aware
of the incident through the prison's administrative grievance
procedure, but to no avail. Id. at ¶ 18.
In Plaintiff's memorandum in opposition to the present
motion, Plaintiff adds the allegation that Defendant Graham
failed to “properly train and supervise his subordinate
officers,” and that if the Corrections Officers who committed
the constitutional violations had been properly trained to
handle prisoners, then the alleged assault would not have
happened. (Dkt. No. 47–1 at 9.)
II. LEGAL STANDARD GOVERNING MOTIONS TO
DISMISS FOR FAILURE TO STATE A CLAIM
A defendant may move to dismiss a complaint on the ground
that the complaint fails to state a claim on which relief can
be granted. Fed.R.Civ.P. 12(b)(6). In order to state a claim
on which relief can be granted, a complaint must contain,
inter alia, “a short and plain statement of the claim showing
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that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The
requirement that a plaintiff “show” that he or she is entitled to
relief means that a complaint “must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)) (emphasis added). “Determining whether a complaint
states a plausible claim for relief ... requires the ... court to
draw on its judicial experience and common sense.... [W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged—but it has not shown—that the pleader is entitled to
relief.” Id. at 679 (internal citation and punctuation omitted).
*2 “In reviewing a complaint for dismissal under Rule 12(b)
(6), the court must accept the material facts alleged in the
complaint as true and construe all reasonable inferences in the
plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d
Cir.1994) (citation omitted). Courts are “obligated to construe
a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72
(2d Cir.2009) (citation omitted). However, “the tenet that a
court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 555).
Where a party is proceeding pro se, the court is obliged to
“read [the pro se party's] supporting papers liberally, and ...
interpret them to raise the strongest arguments that they
suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994);
see also Harris, 572 F.3d at 72 (courts remain obligated to
construe pro se complaints liberally even after Twombly ).
Where a pro se complaint fails to state a cause of action, the
court generally “should not dismiss without granting leave to
amend at least once when a liberal reading of the complaint
gives any indication that a valid claim might be stated.” Cuoco
v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000) (citation and
internal quotation marks omitted). An opportunity to amend is
not required where “the problem with [the plaintiff's] causes
of action is substantive” such that “better pleading will not
cure it.” Id. (citation omitted).
III. ANALYSIS
A. CO Peters and CO Gifford
Plaintiff claims that CO Peters and CO Gifford violated his
Eighth Amendment right to be free from excessive force by
their failure to intervene while he was being beaten by CO
Gentile and an unnamed Corrections Officer. (Dkt. No. 37 at
¶ 28.)
“The Eighth Amendment requires prison officials to take
reasonable measures to guarantee the safety of inmates in
their custody.” Hayes v. New York City Dept. of Corrs., 84
F.3d 614, 620 (2d Cir.1996) (citing Farmer v. Brennan, 511
U.S. 825, 832 (1994)). Law enforcement officials, including
prison officials, can be held liable under § 1983 for failing to
intervene in a situation where another official is violating an
inmate's constitutional rights, including the use of excessive
force, in their presence. Curley v. Vill.of Suffern, 268 F.3d
65, 72 (2d Cir.2001); see also Anderson v. Branen 17 F.3d
552, 557 (2d Cir.1994) (prison officials' Eighth Amendment
duty to take reasonable measures to guarantee the safety
of inmates in their custody includes a duty to protect
inmates from harm threatened by other officers). A state
actor can be held liable for failure to prevent another state
actor from committing a constitutional violation if “(1) the
officer had a realistic opportunity to intervene and prevent
the harm; (2) a reasonable person in the officer's position
would know that the victim's constitutional rights were being
violated; and (3) the officer does not take reasonable steps
to intervene.” Jean Laurent v. Wilkinson, 540 F.Supp.2d 501,
512 (S.D.N.Y.2008), aff'd, 461 Fed.Appx. 18 (2012).
The reasonable opportunity element is an issue of fact to
be decided by the jury, unless there is only one possible
reasonable conclusion from the evidence. Anderson, 17
F.3d at 557. Generally, a reasonable opportunity on the
part of the corrections officer will not be found if the
alleged constitutional violation was sudden or brief. Tafari v.
McCarthy, 714 F.Supp.2d 317, 342 (N.D.N.Y.2010). Courts
in this District have found the reasonable knowledge element
present in cases involving beatings by other corrections
officers. Cusamano v. Sobek, 604 F.Supp.2d 416, 428
(N.D.N.Y.2009).
*3 Defendant contends that Plaintiff has only alleged
“conclusory facts as to CO Peters and CO Gifford” (Dkt.
No. 43–1 at 3), referring to the allegation in the Amended
Complaint that the two “looked on ... with delight” (Dkt. No.
37 at ¶ 16), while CO Gentile and another Corrections Officer
beat him. Id. at ¶ 15. The Court disagrees. If all facts that
Plaintiff has alleged in the Amended Complaint are assumed
true for the purposes of the present motion, then CO Peters
and CO Gifford stood by for fifteen minutes and chose to do
nothing while Plaintiff was dragged to a room. Id. at ¶ 15–
16 There, Plaintiff was continuously punched, kicked, and
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choked by two other corrections officers, in violation of his
Eighth Amendment right to be free from excessive force. Id.
at ¶ 15. Therefore, the Amended Complaint alleges sufficient
facts that, taken as true, give rise to the reasonable inference
that Defendants CO Peters and CO Gifford failed to intervene
under § 1983. Accordingly, I recommend that Defendants'
Rule 12(b)(6) motion to dismiss be denied as to Defendants
CO Peters and CO Gifford.
B. CO McConnell
Plaintiff alleges that Defendant CO McConnell, by denying
him medical care, showed deliberate indifference to his
serious medical needs in violation of his Eighth Amendment
right to be free from cruel and unusual punishment. (Dkt. No.
37 at ¶ 29.) See Farmer, 511 U.S. at 832 (1994).
A claim that prison officials have intentionally disregarded
an inmate's serious medical needs has both objective and
subjective elements. See Caiozzo v. Koreman, 581 F.3d 63,
72 (2d Cir.2009). “The plaintiff must show that she or
he had a serious medical condition and that it was met
with deliberate indifference.” Id. at 72 (citation and internal
quotation marks omitted). “The objective ‘medical need’
element measures the severity of the alleged deprivation,
while the subjective ‘deliberate indifference’ element ensures
that the defendant prison official acted with a sufficiently
culpable state of mind.” Smith v. Carpenter, 316 F.3d 178,
183–84 (2d Cir.2003) (citations omitted).
A “serious medical condition” is “a condition of urgency,
one that may produce death, degeneration, or extreme pain.”
Nance v. Kelly, 912 F.2d 605, 607 (2d Cir.1990) (Pratt J.
dissenting) (citations omitted), accord Hathaway v. Coughlin,
37 F.3d 63, 66 (2d Cir.1994); Chance v. Armstrong, 143
F.3d 698, 702 (2d Cir.1998). Relevant factors to consider
when determining whether an alleged medical condition is
sufficiently serious include, but are not limited to: (1) the
existence of an injury that a reasonable doctor or patient
would find important and worthy of comment or treatment;
(2) the presence of a medical condition that significantly
affects an individual's daily activities; and (3) the existence of
chronic and substantial pain. Chance, 143 F.3d at 702–03.
Under the subjective element, medical mistreatment rises to
the level of deliberate indifference only when it ‘involves
culpable recklessness, i.e., an act or a failure to act ... that
evinces ‘a conscious disregard of a substantial risk of serious
harm.’ ” Id. at 703 (quoting Hathaway, 99 F.3d at 553).
“Non-medical personnel engage in deliberate indifference
where they intentionally delay access to medical care when
the inmate was in extreme pain and had made his personal
problem known to the attendant prison personnel.” Bauman v.
Walsh, 36 F.Supp.2d 508, 512 (N.D.N.Y.1999) (citation and
internal quotation marks omitted).
Defendant contends that Plaintiff's claim should be dismissed
as to CO McConnell. (Dkt. No. 43–1 at 3.) In support
of this argument, Defendant points out that the Amended
Complaint merely recites the elements of a § 1983 claim
of this category, and does not “describe the events with
nearly enough specificity” to support the claim. Id. at 4.
The Court agrees. The Amended Complaint is devoid of
facts plausibly showing that Plaintiff had an objectively
serious medical condition as required to satisfy the objective
prong of the Eighth Amendment inquiry. (Dkt. No. 37 at
¶ 4.) In fact, the Amended Complaint includes no factual
allegations describing injuries allegedly sustained as a result
of the beating. (See Dkt. No. 37.) As for the subjective
element, Plaintiff's Amended Complaint alleges only that
CO McConnell was “made aware of plaintiff's situation, but
refused to assist plaintiff, in receiving emergency medical
help,” and that CO McConnell “ignored [Plaintiff's] request
for [emergency medical help.]” Id. at ¶ 20. Plaintiff has not
set forth facts plausibly showing that CO McConnell acted
with a “conscious disregard of a substantial risk of serious
harm.” Chance, 143 F.3d at 702–03. Plaintiff has failed to
assert factual allegations plausibly showing serious injury
and CO McConnell's awareness of the serious injury. Id.
Accordingly, I recommend that Defendant's Rule 12(b)(6)
motion to dismiss be granted with leave to amend as to
Defendant CO McConnell.
C. Superintendent Graham
1. Personal Capacity
*4 Under Second Circuit precedent, “ ‘personal involvement
of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.’ ” Wright
v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (quoting Moffitt
v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991)).
In order to prevail on a § 1983 cause of action against an
individual, a plaintiff must show some “tangible connection”
between the unlawful conduct and the defendant. Bass v.
Jackson, 790 F.2d 260, 263 (2d Cir.1986). If the defendant is
a supervisory official, a mere linkage to the unlawful conduct
through the prison chain of command (i.e., under the doctrine
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of respondeat superior) is insufficient to show his or her
personal involvement in that unlawful conduct. Polk Cnty. v.
Dodson, 454 U.S. 312, 325 (1981); Richardson v. Goord, 347
F.3d 431, 435 (2d Cir.2003) (per curiam); Wright, 21 F.3d at
501; Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.1985) (per
curiam). In other words, supervisory officials may not be held
liable merely because they held positions of authority. Black
v. Coughlin, 76 F.3d 72, 74 (2d Cir.1996) (citations omitted).
Rather, supervisory personnel may be considered personally
involved if they: (1) directly participated in the violation; (2)
failed to remedy that violation after learning of it through a
report or appeal; (3) created, or allowed to continue, a policy
or custom under which the violation occurred; (4) had been
grossly negligent in managing subordinates who caused the
violation; or (5) exhibited deliberate indifference to the rights
of inmates by failing to act on information indicating that
the violation was occurring. Colon v. Coughlin, 58 F.3d 865,
873 (2d Cir.1995) (citations omitted). Here, Plaintiff alleges
the second and fifth Colon categories, both of which turn on
Defendant Graham's denial of Plaintiff's grievance.
District courts in the Second Circuit are split on whether
a prison superintendent's review and denial of a prisoner's
grievance supports a finding of personal involvement. See
Burton v. Lynch, 664 F.Supp.2d 349, 360 (S.D.N.Y.2009).
Some courts have held that merely affirming the denial
of a grievance does not constitute personal involvement.
Id. (citing Warren v. Goord, 476 F.Supp.2d 407, 413
(S.D.N.Y.2007)). Those courts require that the supervisor
undertake an investigation into the alleged constitutional
violation in order for a finding of personal involvement to
be proper. Burton, 664 F.Supp.2d at 360 (citing Warren,
476 F.Supp.2d at 413). Other courts have found that a
“detailed and specific” response to the allegations in a
grievance is necessary to warrant a finding of personal
involvement. Burton, 664 F.Supp.2d at 360 (quoting Brooks v.
Chappius, 450 F.Supp.2d 220, 226 (W.D.N.Y.2006)). Finally,
some courts have held that the constitutional violation that
is the subject of the grievance must be ongoing, rather
than a single isolated incident, such that the supervisor is
capable of directly remedying the violation. Burton, 664
F.Supp.2d at 360 (citing Vega v. Artus, 610 F.Supp.2d 185,
198 (N.D.N.Y.2009)).
In this case, the Court does not need to adopt a
particular position, because the Amended Complaint does not
sufficiently allege any of the above requirements for a finding
of personal involvement. The Amended Complaint alleges
that Defendant Graham is the warden of Auburn Correctional
Facility, that he “is responsible for receiving all grievances”
filed at Auburn (Dkt. No. 37 at ¶ 8), and that he failed
to discipline the individuals who allegedly participated in
the constitutional violations of which Plaintiff complained
through the grievance process. Id. at ¶¶ 18, 30. There is
no allegation in the Amended Complaint that Defendant
Graham undertook an investigation into the alleged violations
of Plaintiff's constitutional rights or that Defendant Graham
provided a detailed response to any grievance Plaintiff filed.
Plaintiff has similarly failed to allege an ongoing violation of
his constitutional rights by prison employees. Plaintiff only
refers to one isolated incident as the basis for Defendant
Graham's personal involvement in the alleged violation of
his constitutional rights. (Dkt. No. 37 at ¶ 30.) Defendant
Graham had no ability to directly remedy the alleged violation
at the time Plaintiff submitted his grievance. See Burton,
664 F.Supp.2d at 362 (holding that a grievance alleging one
beating with no reference to a continued threat of injury
failed to allege an ongoing constitutional violation); Young,
15 F.Supp.3d at 193 (holding that a grievance alleging
one incident of deliberate indifference to serious medical
needs failed to allege an ongoing constitutional violation).
Accordingly, I recommend that Defendant's motion to dismiss
the complaint pursuant to Rule 12(b)(6) should be granted
with leave to amend as to Defendant Graham in his personal
capacity.
*5 In his memorandum in opposition to the present motion
to dismiss, Plaintiff adds the allegation that Defendant
Graham's negligent training and supervision of the Defendant
Corrections Officers caused the Plaintiff's injuries. (Dkt. No.
47–1 at 9.) Aside from this conclusory allegation about
the training and supervision of the Corrections Officer
Defendants, Plaintiff provides no facts to support Defendant
Graham's personal involvement in the alleged assault. “Vague
and conclusory allegations that a supervisor” negligently
failed to train or supervise “subordinate employees” are not
sufficient to establish personal involvement so as to give
rise to personal liability. White v. Fischer, No. 9:09–CV–240
(DNH/DEP), 2010 WL 624081, at *6, 2010 U.S. Dist. LEXIS
15492, at *19 (N.D.N.Y. Feb. 18, 2010) 2 ; see also Pettus
v. Morgenthau, 554 F.3d 293, 300 (2d Cir.2009) (vague and
conclusory allegations that a supervisor failed to properly
monitor the actions of subordinate employees do not suffice
to establish the requisite personal involvement and support a
finding of liability).
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2 The Court will provide a copy of the unpublished
decision to Plaintiff pursuant to LeBron v. Sanders,
557 F.3d 76 (2d Cir.2009) (per curiam).
Due to the absence of factual allegations by Plaintiff to
make a facially plausible showing of personal involvement
by Defendant Graham related to the alleged assault, I
recommend that the motion to dismiss the Amended
Complaint be granted as to this claim as well. However, in
deference to Plaintiff's pro se status and to the fact that he has
not had the opportunity to make this allegation in a formal
complaint, I also recommend that the dismissal be without
prejudice, and that Plaintiff be granted leave to amend.
2. Official Capacity
The Eleventh Amendment bars suits for damages against state
officials acting in their official capacities. See Severino v.
Negron, 996 F.2d 1439, 1441 (2d Cir.1993) (“[I]t is clear that
the Eleventh Amendment does not permit suit ... for money
damages against state officials in their official capacities.”).
Moreover, the Eleventh Amendment bars official capacity
suits for declaratory relief where the declaratory relief
requested would serve only to declare a past action a violation
of the law. Green v. Mansour, 474 U.S. 64, 74, 106 S.Ct.
423, 88 L.Ed.2d 371 (1985). All DOCCS employees are state
officials for the purposes of the Eleventh Amendment. See,
e.g., Davis v. New York, 316 F.3d 93, 101 (2d Cir.2002).
Graham is a DOCCS employee, and Plaintiff has requested
both declaratory judgment and monetary damages against
him. (Dkt. No. 37 at pp. 7–8.) Specifically, Plaintiff asks the
Court to issue a declaratory judgment stating that Graham
violated Plaintiff's constitutional rights through his failure
to prevent prison employees from physically abusing the
prisoners. Id. at p. 7. Because Graham is a DOCCS employee,
and because of the retroactive nature of the relief Plaintiff
requests, I recommend Defendants' motion to dismiss under
Rule 12(b)(6) for failure to state a claim be granted with
prejudice as to Plaintiff's claim for money damages and
declaratory relief under § 1983 against Graham in his official
capacity. While leave to amend should ordinarily be freely
given, in these circumstances “better pleading will not cure”
Plaintiff's substantive problem with the cause of action against
Graham in his official capacity. Cuoco, 222 F.3d at 112
(citation omitted).
ACCORDINGLY, it is
RECOMMENDED that Defendants' motion to dismiss (Dkt.
No. 43) for failure to state a claim be GRANTED with leave
to amend as to Defendant CO McConnell and Defendant
Superintendent Graham in his personal capacity; and it is
further
RECOMMENDED that Defendants' motion to dismiss (Dkt.
No. 43) for failure to state a claim be GRANTED without
leave to amend as to Defendant Superintendent Graham in his
official capacity; and it is further
*6 RECOMMENDED that Defendants' motion to dismiss
(Dkt. No. 43) for failure to state a claim be DENIED as to
Defendant CO Peters and Defendant CO Gifford; and it is
further
ORDERED that the Clerk provide Plaintiff with a copy of the
unpublished decision in White v. Fischer, No. 9:09–CV–240
(DNH/DEP), 2010 WL 624081 (N.D.N.Y. Feb. 18, 2010).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have
fourteen days within which to file written objections
to the foregoing report. Such objections shall be filed
with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85 (2d Cir.1993) (citing Small v. Sec'y of Health and
Human Servs., 892 F.2d 15 (2d Cir.1989) (per curiam)); 28
U.S.C. § 636(b)(1) (Supp.2013); Fed.R.Civ.P. 72, 6(a).
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All Citations
Not Reported in Fed. Supp., 2015 WL 7292875
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McRae v. Gentile
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 9:14cv00783
MCRAE v. GENTILE ET AL
— N.D.N.Y. June 27, 2014 Docket
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McRae v. Gentile
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (2)
1. McRae v. Gentile
2015 WL 7292875 , N.D.N.Y. , Oct. 20, 2015
Report and Recommendation Adopted by
2. McRae v. Gentile
2015 WL 7300540 , N.D.N.Y. , Nov. 18, 2015
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McRae v. Gentile
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Murray v. New York, Not Reported in Fed. Supp. (2025)
2025 WL 370886
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 370886
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Michael John MURRAY, Plaintiff,
v.
The State of NEW YORK, et al., Defendants.
1:24-cv-08015-GHW
|
Signed February 2, 2025
Attorneys and Law Firms
Michael John Murray, Bronx, NY, Pro Se.
Mark Robert Ferguson, Office of The Attorney General, New
York, NY, for Defendants.
ORDER OF DISMISSAL WITHOUT LEAVE TO AMEND
GREGORY H. WOODS, United States District Judge:
*1 Plaintiff Michael John Murray brings this action pro se,
seeking damages and injunctive relief under the Thirteenth
and Fourteenth Amendments. The Court dismissed Plaintiff's
first amended complaint sua sponte because his claims
against the State of New York and the Graduate Center of
the City University of New York (“CUNY”) were barred by
the Eleventh Amendment, and his claims against the New
York City Housing Authority (“NYCHA”) were time-barred.
The Court granted Plaintiff leave to amend to correct those
deficiencies.
Plaintiff's second amended complaint is now before the
Court. The second amended complaint does not correct the
deficiencies identified in the Court's prior order. Accordingly,
Plaintiff's claims are again dismissed sua sponte, this time
without further leave to amend.
I. BACKGROUND
Plaintiff brought this action pro se on October 22, 2024, and
paid the requisite filing fee on the same day. Dkt. No. 1. On
October 25, 2024, Plaintiff filed the first amended complaint
(“FAC”). Dkt. No. 4. The FAC brought claims under the
Thirteenth and Fourteenth Amendments to the United States
Constitution, id. at 2, against the State of New York, CUNY,
NYCHA, and five individual government officials, id. at 4–5.
The FAC's claims against the State of New York and CUNY
were based on alleged conduct that occurred between 1962
and 1998. Id. at 5A–5B. Its claims against NYCHA were
based on alleged conduct that occurred in 1987. Id. at 5A.
Its claims against the individual defendants were based on
alleged conduct that occurred in the 1980s and 1990s. See id.
at 5A-5B.
On December 6, 2024, the Court dismissed the FAC sua
sponte. Dkt. No. 12. The Court construed the FAC's claims
as brought under 42 U.S.C. § 1983 (“Section 1983”), because
the FAC's claims were brought under the Thirteenth and
Fourteenth Amendments, and “Section 1983 is the exclusive
federal remedy for violations of constitutional rights.” Id. at
4 (quoting Connecticut Citizens Def. League, Inc. v. Thody,
664 F. Supp. 3d 235, 246 (D. Conn. 2023), aff'd, No. 23-724-
CV, 2024 WL 177707 (2d Cir. Jan. 17, 2024)). The Court
held that the Eleventh Amendment barred the FAC's claims
against the State of New York, id. at 4–5, as well as CUNY,
which is “an arm of the state,” id. at 5 (citing Clissuras v. City
Univ. of New York, 359 F.3d 79, 83 (2d Cir.), supplemented sub
nom. Clissuras v. City of Univ. of New York, 90 F. App'x 566
(2d Cir. 2004)). The Court held that the FAC's claim against
NYCHA was time-barred, id. at 6, because NYCHA's alleged
misconduct occurred “well outside of the three-year statute of
limitations on Section 1983 actions in New York,” id. at 6–7
(citing Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013)).
The Court dismissed the FAC's claims against the individual
defendants because they were either time-barred, id. at 7–10,
or failed to allege state action, id. at 10–11. Because Plaintiff
was proceeding pro se, and because the Court was dismissing
his claims sua sponte, the Court granted Plaintiff leave to
amend the FAC to address the “pleading deficiencies” that the
Court had identified. Id. at 12.
*2 On December 30, 2024, Plaintiff filed the operative
Second Amended Complaint. Dkt. No. 14. On January 3,
2025, Plaintiff filed a letter correcting three minor “mistakes”
in the Second Amended Complaint. Dkt. No. 13 (together
with Dkt. No. 14, the “SAC”).
The SAC drops Plaintiff's claims against the individual
government officials, leaving as remaining defendants only
the State of New York, CUNY, and NYCHA (together,
“Defendants”). SAC at 4. It adds an argument that Plaintiff's
claims “should not be construed” as asserted under Section
1983. Id. at 5. It also adds an argument that “[t]he complaint
is compliant with Article II § 8 of [the] New York State
Consolidated Laws regarding waiver of immunity from
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liability.” 1 Id. Finally, it adds a lengthy section detailing the
alleged injuries Plaintiff has suffered since 1985. Id. at 6–6C.
1 The SAC elsewhere suggests that the Court has
jurisdiction to hear Plaintiff's claims under 42
U.S.C. § 405, SAC at 5A, as well as under N.Y.
C.P.L.R. § 304 and N.Y. C.P.L.R. § 305, id. at
5C. 42 U.S.C. § 405 governs, among other things,
various administrative procedures for determining
social-security benefits. N.Y. C.P.L.R. §§ 304 and
305 set forth procedures for commencing an action
in New York state court. None of these statutes
confer jurisdiction over Plaintiff's claims in this
case.
The SAC's allegations regarding Defendants' conduct,
however, are virtually unchanged from those in the FAC.
As in the FAC, Plaintiff alleges that the State of New York
violated his rights because (1) in 1996, the New York State
Secretary of State issued correspondence stating that there
was no record of Plaintiff having a Real Estate Salesman
license; (2) in or around 1995, the New York State Department
of Education did not address Plaintiff's administrative claims
against CUNY; (3) in 1980, the People of the State of New
York engaged in “questionable Estoppel upon proprietorship
endeavors” after Plaintiff inquired about “legal procedures
to raise capital”; and (4) in 1998, the Supreme Court of
the State of New York improperly entered a default divorce
judgment after engaging in alleged “irregularities in process
service.” Id. at 5A–5B. The SAC adds a clause providing
further detail on the alleged irregularities during the 1998
divorce proceeding, 2 and adds citations to bible verses in
support of its argument that the ensuing divorce judgment was
invalid. Id. at 5B. The SAC's allegations against the State of
New York are otherwise identical to those in the FAC.
2 The new clause alleges that the State of New
York, through the Supreme Court of the State
of New York, did not “present[ ] or sign[ ]” a
“form UD-7” during the divorce proceeding. SAC
at 5B. To the extent that this allegation may be
construed as bringing a separate claim against the
Supreme Court of the State of New York, the
Court notes that “the New York State Unified
Court System is unquestionably an arm of the
State,” and is thus equally “entitled to Eleventh
Amendment immunity.” Gollomp v. Spitzer, 568
F.3d 355, 368 (2d Cir. 2009) (barring claims
against the New York Unified Court System under
the Eleventh Amendment) (quotation omitted);
see also, e.g., Craft v. New York State Supreme
Ct., Dutchess Couty, No. 22-CV-10347 (LTS),
2022 WL 17822718, at *2 (S.D.N.Y. Dec. 19,
2022) (barring claims against the Supreme Court
of the State of New York under the Eleventh
Amendment).
*3 As to Defendant CUNY, Plaintiff alleges, as in the FAC,
that (1) in 1962, CUNY misused his social security account
number; and (2) in 1994, CUNY wrongfully terminated
Plaintiff as a student after Plaintiff warned that CUNY was
in possession of copyrighted materials. Id. at 5B–5C. The
SAC revises the “status” of CUNY's designation of his social
security number from “1Y Feb. 15, 1968” to “1Y January 22,
1963.” Id. at 5C. The SAC's allegations against CUNY are
otherwise identical to those in the FAC.
As to Defendant NYCHA, Plaintiff alleges, as in the
FAC, that NYCHA improperly issued an Income Execution
Order against him in 1987. Id. at 5C. A “correlative ...
[g]arnishment” of his income occurred in 1985. Id. Plaintiff
alleges that he has “attempted to resolve the issue by issuing
a check to the creditor's attorney to cover legal and clerical
fees.” Id. at 5C. The SAC adds a request for a “summary
judgment ... for actuary purposes” of the debt he incurred
as a result of the Income Execution Order and garnishment.
Id. The SAC's allegations against NYCHA are otherwise
identical to those in the FAC.
The SAC seeks (1) declaratory judgment “to correct
all ‘State Agency Purview Judgements’ which are errors
to actuarial records”; (2) vacatur of the 1998 divorce
judgment against Plaintiff; (3) repayment of “all military
and welfare amounts” for “parents' time in government
service”; (4) payment for “medical reimbursement and health
care plans” related to Plaintiff's “parenting and teaching
of actuary matters to primary family members” regarding
“personal preventive medical accountability”; (5) repayment
of Plaintiff's “input into New York City municipal and union
death benefit insurance”; and (6) retrieval of Plaintiff's CUNY
undergraduate papers. Id. at 6D-6F (emphases omitted).
II. STANDARD OF REVIEW
The Court has the authority to dismiss a pro se complaint sua
sponte if the Court determines that the action is frivolous,
even where the plaintiff has paid the fees to bring a civil
action. See Fitzgerald v. First E. Seventh Tenants Corp., 221
F. 3d 362, 363–64 (2d Cir. 2000). “An action is frivolous when
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either: (1) the factual contentions are clearly baseless, such
as when allegations are the product of delusion or fantasy;
or (2) the claim is based on an indisputably meritless legal
theory.” Livingston v. Adirondack Beverage Co., 141 F.3d
434, 437 (2d Cir. 1998) (internal quotations omitted). The
Court must also dismiss an action sua sponte if it lacks subject
matter jurisdiction. See Fed. R. Civ. P. 12(h)(3); Ruhrgas AG
v. Marathon Oil Co., 526 U.S. 574, 583 (1999). Finally, the
Court may dismiss an action sua sponte for failure to state a
claim on which relief may be granted “so long as the plaintiff
is given notice and an opportunity to be heard.” Wachtler v.
Cnty. of Herkimer, 35 F. 3d 77, 82 (2d Cir. 1994) (citation
and internal quotation marks omitted), abrogated on other
grounds, Murphy v. Hughson, 82 F. 4th 177 (2d Cir. 2023).
Where, as here, the plaintiff proceeds pro se, the Court
construes the complaint “liberally,” Harris v. Mills, 572 F.
3d 66, 72 (2d Cir. 2009), and interprets the complaint's
allegations to raise the “strongest arguments that they
suggest,” Triestman v. Fed. Bureau of Prisons, 470 F. 3d
471, 474 (2d Cir. 2006) (quotation omitted). Still, the Court's
“special solicitude” in pro se cases, id. at 475 (quotation
omitted), does not absolve a pro se plaintiff of the requirement
under Rule 8 of the Federal Rules of Civil Procedure that his
complaint provide a “short and plain statement ... showing
that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2).
See Salahuddin v. Cuomo, 861 F.2d 40, 41–42 (2d Cir. 1988).
*4 Rule 8 requires a complaint to allege “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. In reviewing a motion to dismiss, the
Court “accept[s] all factual allegations as true, and draw[s] all
reasonable inferences in the plaintiff's favor.” Austin v. Town
of Farmington, 826 F.3d 622, 625 (2d Cir. 2016).
III. DISCUSSION
The SAC must again be dismissed. Plaintiff has not corrected
the deficiencies identified in the Court's dismissal of his prior
complaint. Plaintiff's claims must be construed as brought
under Section 1983, his claims against the State of New York
and CUNY (together, the “State Defendants”) are barred by
the Eleventh Amendment, and his claims against NYCHA are
barred by the statute of limitations.
a. Plaintiff's Claims Arise Under Section 1983
As an initial matter, Plaintiff's claims under the Thirteenth
and Fourteenth Amendments must be construed as brought
under Section 1983. As discussed, the Court's prior order
construed Plaintiff's constitutional claims as brought under
Section 1983, Dkt. No. 12 at 4, before dismissing Plaintiff's
claims because of the immunity afforded to states under the
Eleventh Amendment and Section 1983’s three-year statute
of limitations, id. at 5–7. In response, Plaintiff, rather than
altering the substance of his factual allegations, amended his
complaint to argue that the constitutional claims in the SAC
“should not be construed as ... asserted [under] 42 U.S.C. §
1983.” SAC at 5.
That is not an option that is available to the Court. As
the Court explained in its prior order, “Section 1983 is
the exclusive federal remedy for violations of constitutional
rights.” Dkt. No. 12 at 4 (quoting Thody, 664 F. Supp.
3d at 246). The Second Circuit has long held that “when
[Section] 1983 provides a remedy, an implied cause of action
grounded on the Constitution is not available.” Pauk v. Bd. of
Trustees of City Univ. of New York, 654 F.2d 856, 865 (2d Cir.
1981). Section 1983 provides a remedy for violations of the
Thirteenth and Fourteenth Amendments. See, e.g., Jobson v.
Henne, 355 F.2d 129, 132 (2d Cir. 1966) (sustaining Section
1983 claim alleging violations of Thirteenth Amendment);
Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir.
2002) (sustaining Section 1983 claim alleging violations of
Fourteenth Amendment). Accordingly, the Court will again
proceed by construing Plaintiff's claims as brought under
Section 1983, see Dkt. No. 12 at 4, as not doing so would
require immediate dismissal, see, e.g., Thody, 664 F. Supp.
3d at 246 (“An action taken directly from Constitution ... is
impermissible.”).
b. Plaintiff's Claims Against the State of New York
and CUNY Are Barred by the Eleventh Amendment
As the Court explained in its prior order, the Eleventh
Amendment “bars a suit in law or equity in federal court
against a State absent the State's consent to such a suit
or congressional abrogation of immunity.” Dkt. No. 12 at
5 (citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44,
54 (1996)). “[T]he immunity recognized by the Eleventh
Amendment extends beyond the states themselves to state
agents and state instrumentalities that are, effectively, arms
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of a state.” Gollomp, 568 F.3d at 366 (quotation omitted).
CUNY is an arm of the state to which Eleventh Amendment
immunity applies. Clissuras, 359 F.3d at 83. “The Supreme
Court has made clear that Congress did not intend to override
states' [Eleventh Amendment] immunity on Section 1983
claims,” New York Communities for Change v. New York State
Unified Ct. Sys./Off. of Ct. Admin., 680 F. Supp. 3d 407, 413
(S.D.N.Y. 2023) (citing Quern v. Jordan, 440 U.S. 332, 340–
42 (1979)), “and ‘it is well-established that New York has
not consented to [Section] 1983 suits in federal court,’ ” id.
(quoting Mamot v. Bd. Of Regents, 367 F. App'x 191, 192 (2d
Cir. 2010)).
*5 In light of the State Defendants' Eleventh Amendment
immunity, the Court previewed in its opinion dismissing the
FAC that Plaintiff's constitutional claims against them were
“likely to be futile.” Dkt. No. 12 at 5. Despite this, the
SAC makes virtually no changes to its claims against the
State Defendants. See supra Part I. Instead, the SAC adds an
argument that the Court has jurisdiction under “Article II § 8
of [the] New York State Consolidated Laws regarding waiver
of immunity from liability.” SAC at 5. This is apparently a
reference to Section 8 of the New York Court of Claims Act
(“Section 8”), which does “provide[ ] that the State of New
York waives its immunity from liability and consents to be
sued,” but only “upon condition that the claimant brings suit
in the Court of Claims.” 3 Trotman v. Palisades Interstate
Park Comm'n, 557 F.2d 35, 39 (2d Cir. 1977) (citing N.Y. Ct.
Cl. Act § 8). The Court of Claims is a state court organized
under New York state law. N.Y. Ct. Cl. Act § 2(1). Section
8, therefore, does not constitute “a waiver of [New York's]
Eleventh Amendment immunity in ... federal courts” like this
one. Trotman, 557 F.2d at 40; see also, e.g., Wilson v. City
of New York, No. 23CV7771NRMCLP, 2024 WL 1308706,
at *2 (E.D.N.Y. Mar. 26, 2024) (“Section 8 of the New York
Court of Claims Act is not a waiver of sovereign immunity
from suit for damages in federal court.” (citation omitted)).
3 The state's waiver of immunity under Section 8 is
also subject to the “limitations” set forth in Article
II of the New York Court of Claims Act. Section 8
provides, in full:
The state hereby waives its immunity from
liability and action and hereby assumes liability
and consents to have the same determined
in accordance with the same rules of law
as applied to actions in the supreme court
against individuals or corporations, provided
the claimant complies with the limitations of
this article. Nothing herein contained shall be
construed to affect, alter or repeal any provision
of the workmen's compensation law.
N.Y. Ct. Cl. Act § 8.
For these reasons, Plaintiff's claims against the State
Defendants are again dismissed because they are immune
from suit pursuant to the Eleventh Amendment. 4
4 As discussed, the Court does not understand
Plaintiff to be seeking “prospective injunctive
relief” against any state officials to prevent them
from enforcing laws that violate his constitutional
rights. Edelman v. Jordan, 415 U.S. 651, 677
(1974). Such claims may fall under a “narrow
exception to Eleventh Amendment immunity” first
recognized by the Supreme Court in Ex parte
Young, 209 U.S. 123 (1908), if they “allege[ ] an
ongoing violation of federal law and seek[ ] relief
properly characterized as prospective.” Unkechaug
Indian Nation v. Seggos, No. 23-1013-CV, –––
F.4th ––––, 2025 WL 310163, at *5 (2d Cir. Jan. 28,
2025) (quotations omitted). The Court identified
this possibility in its opinion dismissing Plaintiff's
previous complaint, which named various state
officials as defendants but made no allegations
against them. See FAC at 2, 5A–5B. The Court
explained that Plaintiff's claims against those state
officials, “construed liberally, may be interpreted to
bring claims for injunctive relief against [them] in
[their] official capacities,” Dkt. No. 12 at 8 (citing
Edelman, 415 U.S. at 677), but that “in the absence
of any additional allegations against [them],” it
was “clear from the face of the [FAC] that any
Section 1983 claims against them [were] time-
barred” for the same reasons that Plaintiff's claims
against the state entities themselves were time-
barred, id. at 8–10. Following that opinion, Plaintiff
amended the complaint to drop his claims against
the individual state officials, SAC at 2, and to state
that “[p]ersonnel references of organiz[a]tional
defendants are omitted,” and that “the complaint ...
is actually directed against New York State and
within jurisdictional oversight authority,” id. at
5-5A.
c. Plaintiff's Claims Against NYCHA Are Time-Barred
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Plaintiff's claims against NYCHA are dismissed for the
same reasons as in the Court's prior opinion. The SAC
adds no new allegations against NYCHA. See SAC at 5C.
Accordingly, it remains clear from the face of the pleading
that Plaintiff's claims against NYCHA are time-barred. As
the Court explained in its prior order, “Section 1983 actions
filed in New York are ... subject to a three-year statute of
limitations.” Dkt. No. 12 at 6 (quoting Hogan, 738 F.3d
at 517). That is because “[i]n section 1983 actions, the
applicable limitations period is found in the ‘general or
residual [state] statute [of limitations] for personal injury
actions,’ ” Pearl v. City of Long Beach, 296 F.3d 76, 79
(2d Cir. 2002) (quoting Owens v. Okure, 488 U.S. 235, 249–
50 (1989)) (alterations in original), which in New York is
three years, N.Y. C.P.L.R. § 214(5). The three-year statute of
limitations on Section 1983 claims begins to run “once the
plaintiff knows or has reason to know of the injury which is
the basis of his action.” Veal v. Geraci, 23 F.3d 722, 724 (2d
Cir. 1994) (internal quotation marks and citations omitted).
The limitations period may be tolled in accordance with “state
tolling rules ... unless state tolling rules would ‘defeat the
goals’ of section 1983.” Abbas v. Dixon, 480 F.3d 636, 641
(2d Cir. 2007) (quoting Pearl, 296 F.3d at 80).
*6 The statute of limitations on Section 1983 claims again
defeats Plaintiff's claims against NYCHA. While “the statute
of limitations is ordinarily an affirmative defense that must
be raised in the answer,” Ellul v. Congregation of Christian
Bros., 774 F.3d 791, 798 n.12 (2d Cir. 2014), “an affirmative
defense appearing on the face of a complaint may ... be
the basis for a sua sponte dismissal.” Pino v. Ryan, 49 F.3d
51, 54 (2d Cir. 1995) (affirming sua sponte dismissal of
untimely pro se Section 1983 action). Here, “it is clear from
the face of the complaint ... that the plaintiff's claims [against
NYCHA] are barred as a matter of law.” Michael Grecco
Prods., Inc. v. RADesign, Inc., 112 F.4th 144, 150 (2d Cir.
2024) (quoting Sewell v. Bernardin, 795 F.3d 337, 339 (2d
Cir. 2015)). The allegedly improper Income Execution Order
that grounds Plaintiff's claims against NYCHA was issued in
1987, and the “correlative ... [g]arnishment” of his income
began in 1985. SAC at 5C. Both alleged injuries occurred
well outside of the three-year statute of limitations on Section
1983 actions in New York, see Hogan, 738 F.3d at 517, and
both injuries would ordinarily be felt almost immediately,
upon receipt of Plaintiff's next paycheck or benefit payment.
Plaintiff does not provide allegations suggesting that he did
not know, or had no reason to know, of those injuries until a
later date. See Veal, 23 F.3d at 724. Nor does the SAC provide
allegations suggesting that the limitations period would be
tolled. See Abbas, 480 F.3d at 641. Plaintiff alleges only that
he “has attempted to resolve the issue by issuing a check to
the creditor's attorney in order to cover legal and clerical fees
connected with” the Income Execution Order. SAC at 5C.
This allegation confirms Plaintiff's awareness of the alleged
injury and does not permit an inference that the statute of
limitations on Plaintiff's claims against NYCHA should be
tolled. See Borrero v. Colvin, No. 14CV5304-LTS-SN, 2015
WL 1262276, at *4–5 (S.D.N.Y. Mar. 19, 2015) (dismissing
pro se complaint because the plaintiff had not met his burden
of demonstrating that the statute of limitations was tolled);
see also Abbas, 480 F.3d at 640–41 (affirming dismissal of
pro se complaint after finding that statute of limitations was
not tolled).
Accordingly, it remains clear from the face of the Amended
Complaint that Plaintiff's Section 1983 claim against
NYCHA is time-barred.
IV. IMPLIED STATE LAW CLAIMS
To the extent that the SAC can be interpreted as bringing
claims under state law, see Triestman, 470 F.3d at 474
(noting that pro se pleadings must be interpreted “to raise
the strongest arguments that they suggest” (internal quotation
marks and emphasis omitted)), the Court declines to exercise
supplemental jurisdiction over those claims. A federal district
court may decline to exercise supplemental jurisdiction over
claims under state law when it “has dismissed all claims
over which it has original jurisdiction.” 28 U.S.C. § 1367(c)
(3). Generally, “when the federal-law claims have dropped
out of the lawsuit in its early stages and only state-law
claims remain, the federal court should decline the exercise
of jurisdiction.” Carnegie-Mellon Univ. v. Cohill, 484 U.S.
343, 350 (1988). Accordingly, having dismissed Plaintiff's
federal claims, the Court declines to exercise supplemental
jurisdiction over any claims under state law that may be
implied from Plaintiff's pro se pleading. See Kolari v.
New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir.
2006) (noting the “discretionary nature” of the exercise of
supplemental jurisdiction). Any such claims are dismissed
without prejudice.
V. LEAVE TO AMEND IS DENIED
Plaintiff's claims are dismissed without further leave to
amend. In this circuit, “a pro se complaint generally should
not be dismissed without granting the plaintiff leave to amend
at least once.” Grullon v. City of New Haven, 720 F.3d 133,
140 (2d Cir. 2013); see also Wachtler, 35 F.3d at 82 (holding
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that plaintiffs must be given “notice and an opportunity
to be heard” before their claims are dismissed sua sponte
(quotation omitted)). That has now occurred. The Court's
order dismissing Plaintiff's prior complaint “provided [him]
with notice of the deficiencies” therein and granted him
the opportunity to amend the complaint “to correct those
deficiencies.” Thomas v. Carter, 581 F. Supp. 3d 651, 656
(S.D.N.Y. 2022) (dismissing pro se complaint sua sponte
without leave to amend a second time); see also Moroshkin
v. Dietsche, No. 22-487-CV, 2022 WL 16570779, at *1
(2d Cir. Nov. 1, 2022) (noting that “being given leave to
amend” provides a pro se plaintiff with the “opportunity to
be heard”). Plaintiff's amended complaint not only does not
correct the deficiencies in his prior complaint, it adds virtually
no new factual allegations against Defendants. See supra Part
I. Granting further leave to amend “would thus be futile,”
as “[t]he problem with [Plaintiff's] causes of action” based
on his factual allegations “is substantive; better pleading will
not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000). The Court therefore declines to grant Plaintiff further
leave to amend. See, e.g., id. (“[A] futile request to replead
should be denied.”); Thomas, 581 F. Supp. 3d at 656 (denying
further leave to amend because “further amendment would be
futile”).
VI. CONCLUSION
*7 For the foregoing reasons, this action is DISMISSED
without leave to amend. The Court certifies, pursuant to 28
U.S.C. § 1915(a)(3), that any appeal from this order would
not be taken in good faith, and therefore in forma pauperis
status is denied for the purpose of an appeal. See Coppedge v.
United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2025 WL 370886
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 123 of 175

Murray v. New York
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History (2)
Direct History (1)
1. Murray v. New York
2025 WL 370886 , S.D.N.Y. , Feb. 02, 2025
Related References (1)
2. Murray v. New York
2024 WL 5009955 , S.D.N.Y. , Dec. 06, 2024
Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 124 of 175

Murray v. New York
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Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 125 of 175

Swanson v. City of New York, Not Reported in Fed. Supp. (2017)
2017 WL 3130322
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2017 WL 3130322
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Atlee SWANSON, individually and as administratrix
of the estate of Alvin Nelson III, Plaintiff,
v.
The CITY OF NEW YORK, New York City Department
of Corrections Commissioner Joseph Ponte, Corizon
Health Incorporated and John and Jane Does, Defendants.
16-CV-3231 (MKB)
|
Signed 07/21/2017
Attorneys and Law Firms
Joann Squillace, Drummond & Crawford, PLLC, Stephen L.
Drummond, Drummond and Squillace, PLLC, Jamaica, NY,
for Plaintiff.
Alejandra R. Gil, Heidell, Pittoni, Murphy & Bach, LLP,
White Plains, NY, Austa S. Devlin, John Charles O'Brien, Jr.,
Heidell, Pittoni, Murphy & Bach, P.C., New York, NY, for
Defendants.
MEMORANDUM & ORDER
MARGO K. BRODIE, United States District Judge:
*1 Plaintiff Atlee Swanson commenced the above-captioned
action on June 17, 2016, individually and as administratrix
of the estate of her son, Alvin Nelson III, alleging that
numerous institutional and individual defendants 1 violated
Nelson's constitutional rights by denying him adequate
medical care and causing his death when he was a pre-
trial detainee at Rikers Island Correctional Facility. (Compl.,
Docket Entry No. 1.) Plaintiff filed an Amended Complaint
on December 5, 2016, against the City of New York, New
York City Department of Corrections Commissioner Joseph
Ponte, Corizon Health Incorporated, and John and Jane Doe
employees of Rikers Island, Corizon Health, the New York
City Department of Corrections and the City of New York.
(Am. Compl., Docket Entry No. 20.) Plaintiff alleges claims
for violations of Nelson's Fourth and Fourteenth Amendment
rights pursuant to 42 U.S.C. § 1983, conspiracy under section
1983, supervisory and municipal liability under section 1983,
“neglect/failure to prevent/intercede & conspiracy to deprive
rights” under 42 U.S.C. §§ 1983, 1985 and 1986, “caused
to be subjected” under section 1983, medical malpractice,
wrongful death, intentional infliction of emotional distress,
negligent infliction of emotional distress, negligence, loss of
consortium and punitive damages. (Id. ¶¶ 85–232.) The City
of New York (the “City”) moves to dismiss the Amended
Complaint pursuant to Rules 12(b)(2) and 12(b)(5) of the
Federal Rules of Civil Procedure for lack of personal
jurisdiction and insufficient service of process and, in the
alternative, to dismiss Plaintiff's claims for: (1) inadequate
medical care under the Fourth and Eighth Amendments of the
U.S. Constitution, 2 (2) conspiracy under sections 1983, 1985
and 1986, (3) supervisory liability, (4) municipal liability, (5)
“neglect/failure to prevent/intercede & conspiracy to deprive
rights,” (6) “caused to be subjected” under section 1983 and
(7) negligent or intentional infliction of emotional distress
for failure to state a claim pursuant to Rule 12(b)(6). 3
(Def. Mot. to Dismiss (“Def. Mot.”) 2, Docket Entry No.
21; Decl. of J.C. O'Brien in Supp. of Def. Mot. (“O'Brien
Decl.”), Docket Entry No. 22.) For the reasons set forth
below, the Court denies the City's motion to dismiss for
insufficient service of process and personal jurisdiction. The
Court grants the City's motion to dismiss for failure to state a
claim and dismisses Plaintiff's Fourth and Eighth Amendment
claims, conspiracy claims under sections 1983 and 1985,
failure to intercede claim under section 1986, as well as
Plaintiff's claims for supervisory liability, municipal liability,
“caused to be subjected” under section 1983 and negligent
and intentional infliction of emotional distress.
1 The original Complaint named as Defendants
the New York City Department of Corrections,
the New York City Department of Health,
Rikers Island Correctional Facility, Department
of Corrections Commissioner Joseph Ponte, the
George Motchan Detention Center (“GMDC”)
Facility, “GMDC Medical Clinic/Medical
Facility,” Corizon Health Incorporated, and John
and Jane Doe medical personnel. (Compl., Docket
Entry No. 1.) The Court held a pre-motion
conference on November 4, 2016, and granted
Plaintiff leave to file an Amended Complaint.
(Min. Order dated Nov. 4, 2016.) The Amended
Complaint removes as Defendants the New York
City departments and the GMDC Facilities and
adds the City of New York. (Am. Compl., Docket
Entry No. 20.)
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2 As the Court explains below, Plaintiff has
not explicitly alleged an Eighth Amendment
violation but invokes the language of “cruel
and unusual punishment” in the context of her
claim for violations of the Fourth and Fourteenth
Amendments. (See Am. Compl. ¶¶ 86–88.)
3 The City does not challenge Plaintiff's claim for
deliberate indifference to Nelson's medical needs to
the extent that Plaintiff brings such a claim pursuant
to the Fourteenth Amendment's due process clause,
nor does it challenge Plaintiff's claims for medical
malpractice, wrongful death, general negligence or
punitive damages. (Def. Mem. in Supp. of Def.
Mot. (“Def. Mem.”) 1, Docket Entry No. 23.)
I. Background
a. Factual background
*2 The Court assumes the truth of the factual allegations
for the purpose of deciding this motion. Plaintiff alleges that
between October of 2014 and January 21, 2015, while Nelson
was a pre-trial detainee in the care and custody of Defendants
at Rikers Island, Nelson was denied adequate and timely
medical care despite his requests for such care. (See Am.
Compl. ¶¶ 27–29.)
In “about the second to third week of October 2014,” Nelson
visited the medical staff of GMDC with a cold, chills and
a fever of 105 degrees, and the staff “merely sent [Nelson]
back to his cell and gave him an aspirin or tylenol.” (Id. ¶
34.) Nelson spoke to Plaintiff about this incident and said that
he had “called for sick call” and was waiting to be treated,
that he felt like he was “burning up” and his voice sounded
raspy. (Id. ¶ 35.) The next day, Nelson again presented to
GMDC and complained of the same symptoms, and again,
the GMDC staff sent him back to his cell with aspirin or
tylenol. (Id. ¶ 36.) Through October and November of 2014,
these symptoms continued and worsened, and Nelson became
physically weaker and complained of additional symptoms:
his right shoulder felt like it was “on fire,” he suffered from
a loss of appetite and was so physically weak that he could
not walk. (Id. ¶ 37.)
Plaintiff called and complained of this treatment to female
GMDC corrections officer Mitchell, and was told by Mitchell
and her captain that Nelson would “just have to wait.” (Id.
¶¶ 42–43.) Nelson told Plaintiff that he was being made to
wait for weeks to see a doctor and that he was perceived
not to be suffering from anything severe enough to warrant
treatment, even though he was repeatedly coughing up blood,
feverish, and unable to walk. (Id. ¶¶ 44–45.) In December
of 2014, Plaintiff continued to inquire into the handling of
Nelson's health, calling the New York Statement Department
of Corrections and Community Supervision (“DOCCS”),
Rikers, and GMDC, as well as New York City's 311 line. (Id.
¶ 46.) In or around December of 2014, Nelson saw a doctor
at GMDC, who advised him that “so long as you can put your
arms over your head and can touch your toes, then there's
nothing wrong with you.” (Id. ¶ 48.)
Sometime in early January of 2015, a nurse in the GMDC
infirmary “felt bad to see [Nelson] in his continuing
worsening state and that no one there was doing anything
about it,” and finally drew Nelson's blood to send for testing.
(Id. ¶ 50.) On January 21, 2015, Nelson was transported to
Bellevue Hospital for treatment. (Id. ¶ 51.)
Between January 21, 2015 and April 6, 2015, Nelson was
hospitalized in the Bellevue Hospital Intensive Care Unit.
(Id. ¶ 53.) Doctors at Bellevue Hospital told Nelson and
Plaintiff that Nelson was suffering from terminal stage IV
gall bladder cancer that had metastasized to other organs, and
“that it was terminal and that had it been caught earlier and/
or had he been brought to Bellevue earlier, it would not have
been terminal and he could have under[gone] chemotherapy
and/or radiation.” (Id. ¶¶ 53–54.) Because Nelson's cancer
had metastasized to his bile duct, liver, spleen and spine,
he suffered from blood clots and a stroke. (Id. ¶ 61.) He
underwent “emergency life-saving surgery ... from which he
then became and remained paralyzed on the left sized of
his body,” and which “directly and proximately caused his
wrongful death on or about April 6, 2015.” (Id.)
*3 Plaintiff alleges that Defendants were deliberately
indifferent to Nelson's life and health, conspired to deny
him adequate medical care because of his race, denied
him adequate care, subjected him to cruel and unusual
punishment, deviated from accepted standards of medical
practice, and failed to train and supervise medical staff and
employees who saw Nelson at GMDC. (Id. ¶ 64.) Plaintiff
seeks compensatory and punitive damages for the denial of
medical care, as well as damages for loss of services and
companionship with Nelson and Nelson's two minor children.
(Id. ¶ 65.)
II. Discussion
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a. Standards of review
i. Rules 12(b)(2) and 12(b)(5)
On a motion to dismiss for lack of personal jurisdiction
pursuant to Rule 12(b)(2) of the Federal Rules of Civil
Procedure, “[a] plaintiff bears the burden of demonstrating
personal jurisdiction over a person or entity against whom it
seeks to bring suit.” Troma Entm't, Inc. v. Centennial Pictures
Inc., 729 F.3d 215, 217 (2d Cir. 2013) (citing Penguin Grp.
(USA) Inc. v. Am. Buddha, 609 F.3d 30, 34 (2d Cir. 2010));
see also Thackurdeen v. Duke Univ., 660 Fed.Appx. 43, 44–
45 (2d Cir. 2016) (“In opposing a motion to dismiss for lack of
personal jurisdiction, plaintiffs bear the burden of establishing
that the court has jurisdiction over defendants.” (citations,
alterations and internal quotation marks omitted)). “To
establish personal jurisdiction, [a plaintiff] must show that
[the defendant] has minimum contacts with the forum and was
properly served.” Howell v. Campbell, No. 15-CV-3705, 2016
WL 1241529, at *2 (S.D.N.Y. Mar. 23, 2016) (citing Salmassi
e. Kfr. v. Euro-America Container Line Ltd., 08-CV-4892,
2010 WL 2194827, at *4 (S.D.N.Y. June 1, 2010)).
Rule 12(b)(5) permits a party to move to dismiss the
complaint for insufficient service of process. 4 Fed. R. Civ. P.
12(b)(5). “In considering a Rule 12(b)(5) motion to dismiss
for insufficient service of process, a court must look[ ] to
matters outside the complaint to determine whether it has
jurisdiction.” George v. Prof. Disposables Int'l, Inc., 221 F.
Supp. 3d 428, 432 (S.D.N.Y. 2016) (internal quotation marks
omitted) (quoting Cassano v. Altshuler, 186 F. Supp. 3d 318,
320 (S.D.N.Y. 2016)); see also Hawthorne v. Citicorp Data
Sys., Inc., 219 F.R.D. 47, 49 (E.D.N.Y. 2003) (“Without
proper service a court has no personal jurisdiction over a
defendant.”). A court considers whether the plaintiff has
complied with Rule 4, which governs the content, issuance
and service of a summons. DeLuca v. AccessIT Grp., Inc.,
695 F. Supp. 2d 54, 64 (S.D.N.Y. 2010). “Once a defendant
challenges the sufficiency of service of process, the burden of
proof is on the plaintiff to show the adequacy of service.” Id.
(citation omitted); accord Khan v. Khan, 360 Fed.Appx. 202,
203 (2d Cir. 2010).
4 Rule 12(b)(4) also provides a mechanism for
a defendant to interpose an objection to the
sufficiency of process. “An objection under Rule
12(b)(4) concerns the form of the process rather
than the manner or method of its service.
Technically, therefore, a Rule 12(b)(4) motion is
proper only to challenge noncompliance with the
provisions of Rule 4(b) or any applicable provision
incorporated by Rule 4(b) that deals specifically
with the content of the summons.” 5B Fed. Prac. &
Proc. Civ. § 1353 (3d ed.). “A Rule 12(b)(5) motion
is the proper vehicle for challenging the mode of
delivery or the lack of delivery of the summons and
complaint.” Id.
ii. Rule 12(b)(6)
In reviewing a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a court must construe the
complaint liberally, “accepting all factual allegations in the
complaint as true and drawing all reasonable inferences in
the plaintiff's favor.” Concord Assocs., L.P. v. Entm't Prop.
Trust, 817 F.3d 46, 52 (2d Cir. 2016) (quoting Chambers v.
Time Warner Inc., 282 F.3d 147, 152 (2d Cir. 2002)); see
also Tsirelman v. Daines, 794 F.3d 310, 313 (2d Cir. 2015)
(quoting Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326,
329 (2d Cir. 1997)). A complaint must plead “enough facts
to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim
is plausible “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Matson v. Bd.
of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)); see also Pension Ben.
Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan
v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717–18
(2d Cir. 2013). Although all allegations contained in the
complaint are assumed true, this principle is “inapplicable to
legal conclusions” or “[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements.”
Iqbal, 556 U.S. at 678.
b. Insufficient service of process
*4 The City argues that despite repeated notices to Plaintiff,
the City was never served with a summons in this action. (Def.
Mem. 11.) Plaintiff acknowledges that the summons lacked
the seal of the Court and signature of the Clerk of Court, but
argues that a technical deficiency does not warrant dismissal
because the City has not suffered prejudice from the error. (Pl.
Opp'n Mem. 26.)
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Under Rule 4(b), “[o]n or after filing the complaint, the
plaintiff may present a summons to the clerk for signature
and seal.” Fed. R. Civ. P. 4(b). “If the summons is properly
completed, the clerk must sign, seal, and issue it to the
plaintiff for service on the defendant.” Id.; see also id. 4(a)(1)
(F) & (G) (requiring that a summons be signed by the clerk
and bear the court's seal). “A summons must be served with a
copy of the complaint. The plaintiff is responsible for having
the summons and complaint served within the time allowed
by Rule 4(m) [ninety days] and must furnish the necessary
copies to the person who makes service.” Id. 4(c)(1). Rule
4(m) provides that:
If a defendant is not served within
[ninety] days after the complaint is
filed, the court—on motion or on its
own after notice to the plaintiff—must
dismiss the action without prejudice
against that defendant or order that
service be made within a specified
time. But if the plaintiff shows good
cause for the failure, the court must
extend the time for service for an
appropriate period.
Id. 4(m). “It is clear under the second clause of Rule 4(m) that
an extension is always warranted upon a showing of ‘good
cause,’ ” and “[t]he first clause of Rule 4(m), which makes
no mention of good cause, grants discretion to district courts
in a backhanded fashion by dictating that they ... must decide
to dismiss ... or decide not to dismiss. But no criteria for
this decision are supplied in the rule itself.” Zapata v. City of
New York, 502 F.3d 192, 197 (2d Cir. 2007). In determining
whether a discretionary extension is appropriate absent good
cause, a court considers the following factors: (1) whether any
applicable statutes of limitations would bar the action once
refiled; (2) whether the defendant had actual notice of the
claims asserted in the complaint; (3) whether the defendant
attempted to conceal the defect in service; and (4) whether
the defendant would be prejudiced by extending the plaintiff's
time for service. DeLuca, 695 F. Supp. 2d at 66 (collecting
cases); see also Soos v. Niagara County, 195 F. Supp. 3d
458, 467 (W.D.N.Y. 2016); Howell, 2016 WL 1241529, at *4;
Beauvoir v. U.S. Secret Serv., 234 F.R.D. 55, 58 (E.D.N.Y.
2006).
Although “[t]echnical errors in a summons generally do not
render service invalid,” where the error “actually results
in prejudice to the defendant or demonstrates a flagrant
disregard of Rule 4, service will be considered invalid and
amendment need not be allowed.” DeLuca, 695 F. Supp. 2d
at 65 (citations omitted); see also Durant v. Traditional Invs.,
Ltd., No. 88-CV-9048, 1990 WL 336611, at *4 (S.D.N.Y.
Mar. 22, 1990) (“When the error in the summons goes to
form rather than substance, amendment ... should be freely
granted ... as courts should not deny a plaintiff her day in
court due to technical imperfections in service.”); Macaluso
v. N.Y.S. Dep't of Envtl. Conserv., 115 F.R.D. 16, 17 (E.D.N.Y.
1986) (stating that “amendments to process are freely given
because courts do not wish to deny plaintiffs their day in court
for failure to observe mere technicalities”); cf. Osrecovery,
Inc. v. One Grp. Int'l, Inc., 234 F.R.D. 59, 60 (S.D.N.Y. 2005)
(“Although minor or technical defects in a summons in certain
circumstances do not render service invalid, defects that are
prejudicial to the defendant or show a flagrant disregard for
[Rule 4] do.”).
*5 “Courts in the Second Circuit are split as to whether
an unsigned and unsealed summons is a technical defect
or a flagrant disregard of Rule 4.” DeLuca, 695 F. Supp.
2d at 65 (collecting cases); compare Kriger v. Am. Express
Fin. Advisors, No. 98-CV-782E(F), 2000 WL 207119, at *4
(W.D.N.Y. Feb. 16, 2000) (denying the defendant's motion
to dismiss for insufficient service where the absence of the
clerk's signature and the court's seal were “mere technical
defects”) with Macaluso, 115 F.R.D. at 18 (“This [c]ourt ...
does not view service of an unsigned, unsealed summons not
issued by the court clerk as a mere technical defect. Instead,
it amounts to a complete disregard of requirements of process
set forth clearly and concisely in Rule 4.”).
Here, the Court need not resolve whether the deficiencies
in the summons amount to technical error or flagrant
disregard of Rule 4 because, regardless, the Court exercises
its discretion under Rule 4(m) to allow amendment.
On June 17, 2016, the Clerk of Court directed Plaintiff
to submit summonses. (See Notice dated June 17, 2016.)
Plaintiff does not appear to have done so. On August 24,
2016, the City requested an extension of time to answer the
Complaint or move to dismiss. (Def. Letter dated Aug. 24,
2016, Docket Entry No. 4.) On August 26, 2016, Magistrate
Judge Robert Levy granted the City's request and directed
Plaintiff's counsel to file a summons and affidavit of service
by September 12, 2016. (Order dated Aug. 26, 2016.) On
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October 13, 2016, the City filed a letter requesting a pre-
motion conference in anticipation of a motion to dismiss, and,
in the letter, noted that it had not been properly served. (Def.
Pre-Mot. Conf. Letter, Docket Entry No. 6.) The next day,
Plaintiff filed numerous entries titled “SUMMONS returned
executed,” which attached affidavits of service corresponding
to each named Defendant and stating that each Defendant
had been served between August 8, 2016 and August 18,
2016. (See Docket Entry Nos. 7–14.) Each affidavit of service
represented that a Defendant had been served by “Elite Legal
Services of NY, Inc.,” and Plaintiff attached a single copy of
the summons that was served on the City of New York. (See
Summons, Docket Entry No. 7-1.) The summons provides the
case number, the caption, the name and address of Plaintiff's
attorney and instructions for answering the Complaint in
accordance with the Federal Rules of Civil Procedure. (See
id.) The summons does not include the City's name and
address, bear the Court's seal or contain the signature of
the Clerk of Court, but the City of New York's Office of
Corporation Counsel appears to have stamped the summons
upon receiving it on August 8, 2016. (See id.)
Plaintiff has not detailed her efforts to serve Defendants in
compliance with Rule 4, and thus has not shown good cause
for the deficiencies. (See Pl. Opp'n Mem. 24–25.) The Court
therefore applies the four factors to determine whether to
grant Plaintiff further leniency in the absence of good cause.
See Soos, 195 F. Supp. 3d at 467 (applying the factors).
In this case, the three-year statute of limitations applicable to
claims under section 1983 will not expire until, at the earliest,
October of 2017. See Abbas v. Dixon, 480 F.3d 636, 638 (2d
Cir. 2007) (applying three-year limitations period to actions
under section 1983 where the alleged incidents occurred in
New York); (see also Am. Compl. ¶¶ 27–29 (alleging that the
initial denials of medical care occurred in October of 2014)).
Next, there is no evidence of prejudice to the City, which
received the summons and timely appeared in the action. (See
Summons (stamped as received on August 8, 2016).) As to
the third factor, there is no evidence that the City attempted to
conceal the defective service; in fact, it appears that the City
gave notice of defective service early in the litigation, (see
Order dated Aug. 26, 2016). Finally, as to the fourth factor,
the City has identified no prejudice that it would suffer as a
result of a further extension to service.
*6 Because the City has identified no prejudice from the
errors in the summons, the sole result of granting Plaintiff an
extension of time would be to require Defendants to defend
the case on the merits. Accordingly, the Court grants Plaintiff
thirty days from the date of this Memorandum and Order to
serve a properly signed and sealed summons on each named
Defendant, in compliance with Rule 4 of the Federal Rules of
Civil Procedure, and to file both an affidavit of service and
a copy of the summons as it was served on each Defendant.
If Plaintiff fails to serve the summons or file proof of service
with the Court within thirty days, the Court will dismiss the
action without prejudice for failure to comply with Rule 4(m).
c. Fourth Amendment and
Fourteenth Amendment claims
Plaintiff alleges in count one of the Amended Complaint
that Defendants violated Nelson's Fourth Amendment and
Fourteenth Amendment rights to be “free from unlawful
seizure of his person and to be free from cruel and unusual
punishment.” (Am. Compl. ¶¶ 86–88.) The City argues that
count one invokes the language of the Eighth Amendment's
prohibition on cruel and unusual punishment, 5 and that
neither the Fourth nor the Eighth Amendment is applicable to
a pre-trial detainee like Nelson. (Def. Mem. 12.)
5 As the City notes, the original Complaint contained
a count alleging a violation of the Eighth
Amendment, and the Amended Complaint removes
the Eighth Amendment title but retains the
language of the claim. (See Def. Mem. 12.) The
City does not challenge Plaintiff's claim to the
extent that it alleges a due process violation, and the
Court therefore does not address what it construes
to be Plaintiff's due process claim for deliberate
indifference to Nelson's medical needs under
the Fourteenth Amendment. To the extent that
Plaintiff brings the same claim under the Eighth
Amendment, that claim is dismissed because,
as noted below, “a pretrial detainee's claims of
unconstitutional conditions of confinement are
governed by the Due Process Clause of the
Fourteenth Amendment, rather than the Cruel
and Unusual Punishments Clause of the Eighth
Amendment.” Darnell v. Pineiro, 849 F.3d 17, 29
(2d Cir. 2017).
“A pretrial detainee's claims of unconstitutional conditions of
confinement are governed by the Due Process Clause of the
Fourteenth Amendment, rather than the Cruel and Unusual
Punishments Clause of the Eighth Amendment.” Darnell v.
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Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (citing 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)). This is because “[p]retrial detainees have not been
convicted of a crime and thus ‘may not be punished in any
manner—neither cruelly and unusually nor otherwise.’ ” Id.
(quoting Iqbal v. Hasty, 490 F.3d 143, 168 (2d Cir. 2007)); see
also Kingsley v. Hendrickson, 576 U.S. ––––, ––––, 135 S.
Ct. 2466, 2475 (June 22, 2015) (“[M]ost importantly, pretrial
detainees (unlike convicted prisoners) cannot be punished
at all, much less ‘maliciously and sadistically’ ” (citations
omitted)).
In addition to a due process right, pretrial detainees “retain a
limited right to bodily privacy under the Fourth Amendment.”
Harris v. Miller, 818 F.3d 49, 57–58 (2d Cir. 2016). Courts
have considered an inmate's Fourth Amendment rights in
two contexts: first, an allegedly unreasonable search of the
inmate's person, as in the context of a strip-search, see Harris,
818 F.3d at 53–54; and second, an allegedly unreasonable
search or seizure of an inmate's belongings, see Hudson
v. Palmer, 468 U.S. 517, 526 (1984) (discussing inmates'
Fourth Amendment right to privacy in the personal effects
within their prison cells). Although the Court has not located
precedent that addresses a Fourth Amendment challenge to
the “seizure” of a pretrial detainee's person, the Supreme
Court has explained that “a pretrial detainee can prevail [on
a constitutional claim] by providing only objective [and not
subjective] evidence that the challenged governmental action
is not rationally related to a legitimate governmental purpose
or that it is excessive in relation to that purpose.” Kingsley,
576 U.S. at ––––, 135 S. Ct. at 2473–74 (explaining that
pretrial detainees are not permitted to be punished but that
their rights may be circumscribed in order to preserve internal
order and discipline within detention facilities).
*7 The Court dismisses Plaintiff's claim for unreasonable
seizure under the Fourth Amendment because the claim is
not cognizable. Plaintiff has not pointed to any authority
to support her assertion that Defendants' denial of adequate
medical care to Nelson constituted an unreasonable seizure
under the Fourth Amendment because Nelson was prevented
from seeking outside medical care, and the Court has found no
authority to support such a claim. Even assuming that Plaintiff
could bring such a claim, Plaintiff has not articulated the way
in which the alleged seizure was “unreasonable” under the
Fourth Amendment or provided “evidence that the challenged
governmental action is not rationally related to a legitimate
governmental purpose or that it is excessive in relation to that
purpose.” See Kingsley, 576 U.S. at ––––, 135 S. Ct. at 2473–
74. Indeed, it is not clear to the Court what practice or conduct
Plaintiff challenges as having resulted in the unreasonable
seizure of Nelson's person. Accordingly, the Court dismisses
Plaintiff's Fourth Amendment claim. See Harris, 818 F.3d at
58 (explaining that prison-based Fourth Amendment claims
can challenge the reasonableness of a particular search or of
a broader prison policy).
d. Conspiracy and failure to intercede
claims under sections 1983, 1985 and 1986
Plaintiff alleges in counts two and five of the Amended
Complaint that Defendants conspired to deprive Nelson of
his due process and equal protection rights, in violation of
42 U.S.C. §§ 1983 and 1985, and failed to intercede in the
violation of Nelson's rights in violation of 42 U.S.C. § 1986.
(Am. Compl. ¶¶ 95–101, 147–54.)
The City argues that the Amended Complaint does not set
forth any factual allegations to support a claim for conspiracy
and “contains nothing more than conclusory claims that the
[D]efendants ‘conspired with each other.’ ” (Def. Mem. 14.)
Plaintiff argues that the Amended Complaint sufficiently
alleges that Defendants conspired to deny Nelson adequate
medical care and then to intentionally cover up the denial of
that medical care. 6 (Pl. Opp'n Mem. 22–23.)
6 Although the Complaint brought claims for
conspiracy under sections 1985 and 1986, in
addition to section 1983, count five of the Amended
Complaint appears to bring a single claim for
“neglect/failure to prevent/intercede & conspiracy
to deprive rights.” (Am Compl. ¶¶ 147–54.) The
Court analyzes the allegations in count five as
alleging separate claims for failure to prevent/
intercede under section 1983 and for conspiracy
under sections 1985 and 1986.
i. Conspiracy under sections 1983 and 1985
“To prove a [section] 1983 conspiracy, a plaintiff must show:
(1) an agreement between two or more state actors or between
a state actor and a private entity; (2) to act in concert to
inflict an unconstitutional injury; and (3) an overt act done
in furtherance of that goal causing damages.” Pangburn v.
Culbertson, 200 F.3d 65, 72 (2d Cir. 1999); Wolff v. State Univ.
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of N.Y., ––– Fed.Appx. ––––, ––––, 2016 WL 8213713, at
*1 (2d Cir. Feb. 6, 2016) (citing Pangburn, 200 F.3d at 72);
McDonough v. Smith, No. 15-CV-1505, 2016 WL 7496128,
at *11 (N.D.N.Y. Dec. 30, 2016) (quoting Pangburn, 200 F.3d
at 72); Bartels v. Inc. Vill. of Lloyd, 751 F. Supp. 2d 387, 402
(E.D.N.Y. 2010).
To state a claim for conspiracy to interfere with civil rights
under section 1985, a plaintiff must allege (1) a conspiracy,
(2) with the intent or purpose to deprive a person of equal
protection of the law, (3) an act in furtherance of the
conspiracy, (4) which results in an injury to a person, or a
person's property, or the deprivation of a federal constitutional
right. Sheehy v. Brown, 335 Fed.Appx. 102, 104 (2d Cir. 2009)
(citing Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7
F.3d 1085, 1087 (2d Cir. 1993)). “In order to maintain an
action under [s]ection 1985, a plaintiff ‘must provide some
factual basis supporting a meeting of the minds, such that
[the] defendants entered into an agreement, express or tacit,
to achieve the unlawful end.’ ” Webb v. Goord, 340 F.3d 105,
110 (2d Cir. 2003) (citation omitted). In addition, a plaintiff
must allege that he is a member of a protected class and
that the conspirators acted with class-based discriminatory
motivation. See Griffin v. Breckenridge, 403 U.S. 88, 102
(1971); Britt v. Garcia, 457 F.3d 264, 270 n.4 (2d Cir. 2006);
Ali v. Connick, 136 F. Supp. 3d 270, 277 (E.D.N.Y. 2015).
*8 Plaintiff has repeatedly alleged that each of the individual
Defendants acted “in concert with one another under color
of law” and “conspired with each other to undertake a
course of conduct,” to deny Nelson adequate medical care.
(Am. Compl. ¶¶ 96, 144, 150–51.) Plaintiff has not alleged
any facts to support a meeting of the minds, however, and
the existing allegations are insufficient to support a claim
sounding in conspiracy under section 1983 or section 1985.
See Ciambriello v. County of Nassau, 292 F.3d 307, 324
(2d Cir. 2002) (“A merely conclusory allegation that [the
defendant] acted in concert with a state actor does not suffice
to state a [section] 1983 claim....”); see also Webb, 340 F.3d
at 111 (dismissing section 1985 conspiracy claim because
“the plaintiffs have not alleged, except in the most conclusory
fashion, that any ... meeting of the minds occurred among
any or all of the defendants”); Young v. Suffolk County, No.
09-CV-3325, 2013 WL 491982, at *16 (E.D.N.Y. Feb. 11,
2013) (holding that the plaintiff's “unsubstantiated allegations
of purported collaboration” between the defendants were
insufficient to defeat summary judgment); Arredondo v.
County of Nassau, No. 11-CV-710, 2012 WL 910077, at *6
(E.D.N.Y. Mar. 16, 2012) (dismissing complaint where the
plaintiff had only made general allegations that the defendants
had an understanding without any facts to support the claim).
Moreover, as relevant to Plaintiff's claims under sections
1985 and 1986, Plaintiff has not alleged facts to show that
the individuals who allegedly conspired to deprive Nelson
of his rights were employees of different institutional or
municipal entities. “[I]t is well settled that there can be
no actionable conspiracy under the civil rights laws if the
alleged conspirators are employees of a single organization
and their alleged actions were taken in the course of their
employment.” Ahmed v. Gelfand, 160 F. Supp. 2d 408, 413
(E.D.N.Y. 2001) (citing Girard v. 94th St. and Fifth Ave.
Corp., 530 F.2d 66, 71 (2d Cir. 1976)); see also Farbstein v.
Hicksville Pub. Library, 254 Fed.Appx. 50, 51 (2d Cir. 2007)
(affirming dismissal of the conspiracy claim where the co-
conspirators were both employees of the same public library);
Ali v. Connick, 136 F. Supp. 3d 270, 282 (E.D.N.Y. 2015)
(explaining that under the intracorporate conspiracy doctrine,
“employees or agents of a single corporate entity, acting
within the scope of their employment, are legally incapable of
conspiring together” (first citing Herman v. Moore, 576 F.2d
453, 459 (2d Cir. 1978); and then citing Girard, 530 F.2d at
72)); Richard v. Fischer, 38 F. Supp. 3d 340, 353 (W.D.N.Y.
2014) (applying the intracorporate conspiracy doctrine to bar
inmates' conspiracy claims against DOCCS). Here, Plaintiff's
allegations suggest that most or all Defendants who allegedly
deprived Nelson of his rights were employed in some capacity
by the City. Without further allegations that some of the
Defendants conspired with others who worked outside of
their institutional entity, the Court finds that the intracorporate
conspiracy doctrine would preclude any City employees'
liability on Plaintiff's conspiracy claims under sections 1985
and 1986.
In addition, Plaintiff has not plausibly alleged that Defendants
acted with discriminatory motivation, as is required under
section 1985. Grillo v. N.Y.C. Transit Auth., 291 F.3d 231, 234
(2d Cir. 2002) (denying summary judgment on the plaintiff's
section 1985 conspiracy claim where he did not “come
forward with at least some credible evidence that the actions
of the individual [defendants] were motivated by racial
animus or ill-will”); Mian, 7 F.3d at 1087 (“Furthermore,
the conspiracy must also be motivated ‘by some racial
or perhaps otherwise class-based, invidious discriminatory
animus behind the conspirators' action.’ ” (quoting United
Bhd. Of Carpenters, Local 610 v. Scott, 463 U.S. 825,
828–29 (1983))). The Amended Complaint states only that
Defendants' conduct “was motivated by racial animus and
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animus/bias against [Nelson] based on his inmate status,
based upon his race, and based upon [ ] Defendants'
desire to injure, oppress, frighten, harass and intimidate
[Nelson] because of his race ... to wit: African-American/
Black.” (Am. Compl. ¶ 89.) These allegations, without more,
are insufficient to plausibly demonstrate that “the conspiracy
[was] motivated by racial animus.” Brown v. City of Oneonta,
221 F.3d 329, 341 (2d Cir. 1999); see also Ali, 136 F. Supp.
3d at 277.
*9 Plaintiff has not stated a claim for conspiracy
under section 1983 or section 1985, and the Court
accordingly dismisses the conspiracy claims from the
Amended Complaint.
ii. Failure to intercede claim under section 1986
Plaintiff alleges in count five of the Amended Complaint
that Defendants “had the power and authority to prevent”
others from conspiring to deny Nelson adequate and timely
medical care, but that they “willfully and/or negligently
neglected and refused to prevent” the unlawful conduct.
(Am. Compl. ¶ 151.) In particular, Plaintiff alleges that
“Defendants' agents”—“Nurse Jones and the Hispanic doctor/
nurse”—“had the knowledge that [Nelson's] rights were being
violated, that he was being denied timely and proper medical
care, that he needed medical care and that he requested [it],
and, had opportunities to intercede on behalf of [Nelson] to
prevent the unlawful conduct committed against him” but
refused to do so. (Id. ¶ 152.)
Section 1986 provides a cause of action against anyone
who, “having knowledge that any of the wrongs conspired
to be done and mentioned in section 1985 are about to be
committed and having power to prevent or aid, neglects to
do so.” Mian, 7 F.3d at 1088. Thus, “a [section] 1986 claim
must be predicated on a valid [section] 1985 claim.” Id.
Because Plaintiff has not stated a claim for conspiracy under
section 1985, the Court dismisses Plaintiff's claim for failure
to intercede under section 1986.
e. Supervisory liability claim
Plaintiff alleges in count three of the Amended Complaint that
Defendants Ponte and certain John and Jane Doe “supervisor
correction officers, lieutenants, sergeants, captains, deputy
commissioners, assistant deputy commissioners, medical
supervisors and/or any and all other supervisors with
knowledge” failed to supervise and train their subordinates,
who denied adequate medical care to Nelson. (Am Compl. ¶¶
104–08.)
The City argues that Plaintiff has not established the personal
involvement of either Ponte or any of the Doe supervisors.
(Def. Mem. 14–15.) Plaintiff argues that she has sufficiently
pled that Ponte is “in complete command and control of
the entire [New York City] Department of Corrections and
is in charge of and knows what occurs and does not occur
there—including, but not limited to, the providing of medical
care.” (Pl. Opp'n Mem. 23.)
“Liability for supervisory government officials cannot be
premised on a theory of respondeat superior because [section]
1983 requires individualized, personalized liability on the
part of each government defendant.” Raspardo v. Carlone,
770 F.3d 97, 116 (2d Cir. 2014) (citing Iqbal, 556 U.S. at
676). Instead, “[b]ecause vicarious liability is inapplicable
to ... [section] 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official's own
individual actions, has violated the Constitution.” Id. (quoting
Iqbal, 556 U.S. at 676). Thus, “each Government official ...
is only liable for his or her own misconduct.” Id. (quoting
Iqbal, 556 U.S. at 677); see also Hayut v. State Univ. of N.Y.,
352 F.3d 733, 753 (2d Cir. 2003) (“It is well-settled ... that
the doctrine of respondeat superior standing alone does not
suffice to impose liability on for damages under section 1983
on a defendant acting in a supervisory capacity.”).
*10 The Second Circuit has held that:
The personal involvement of a
supervisory defendant may be shown
by evidence that: (1) the defendant
participated directly in the alleged
constitutional violation, (2) the
defendant, after being informed of
the violation through a report or
appeal, failed to remedy the wrong,
(3) the defendant created a policy or
custom under which unconstitutional
practices occurred or allowed the
continuance of such a policy or
custom, (4) the defendant was grossly
negligent in supervising subordinates
who committed the wrongful acts, or
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(5) the defendant exhibited deliberate
indifference to the rights of [plaintiffs]
by failing to act on information
indicating that unconstitutional acts
were occurring.
Raspardo, 770 F.3d at 116 (alteration in original) (quoting
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). In
addition, a plaintiff must show that the supervisor's actions
proximately caused the plaintiff's constitutional deprivation.
Id. “Gross negligence” denotes a higher degree of culpability
than “mere negligence.” Id. (citing Poe v. Leonard, 282 F.3d
123, 140 n.14, 146 (2d Cir. 2002)). “It is ‘the kind of conduct
where the defendant has reason to know of facts creating a
high degree of risk of ... harm to another and deliberately
acts or fails to act in conscious disregard or indifference to
that risk.’ ” Id. (alterations in original) (internal citations and
quotation marks omitted).
Gross negligence is satisfied where “the plaintiff establishes
that the defendant-supervisor was aware of a subordinate's
prior substantial misconduct but failed to take appropriate
action to prevent future similar misconduct before the
plaintiff was eventually injured.” Id. (citing, e.g., Johnson
v. Newburgh Enlarged Sch. Dist, 239 F.3d 246, 255 (2d
Cir. 2001) (holding that where complaint alleged defendant-
supervisors were aware teacher assaulted students on four
prior occasions before the teacher's assault of plaintiff, “a
jury could find the supervisors personally involved in the
unconstitutional deprivation on the basis that they were ...
grossly negligent in supervising” the teacher)); see also Poe,
282 F.3d at 146 (holding that the plaintiff failed to identify
issue of fact regarding the defendant-supervisor's alleged
gross negligence where the supervisor failed to review his
subordinate's personnel file and was aware of inappropriate
but not sexually provocative demands the employee had made
to other women); Meriwether v. Coughlin, 879 F.2d 1037,
1047–48 (2d Cir. 1989) (affirming finding of supervisory
liability where evidence showed supervisors knew or should
have known that the plaintiff-inmates' reputations as alleged
planners of violent insurrection would expose them to
extreme hostility form the guards, yet took no precautions
for the inmates' safety). However, a supervisor is not grossly
negligent “where the plaintiff fails to demonstrate that the
supervisor knew or should have known of a problematic
pattern of employee actions or where the supervisor took
adequate remedial steps immediately upon learning of the
challenged conduct.” Raspardo, 770 F.3d at 117; see also
Hayut, 352 F.3d at 753; Colon, 58 F.3d at 873. “A plaintiff
pursuing a theory of gross negligence must prove that a
supervisor's neglect caused his subordinate to violate the
plaintiff's rights in order to succeed on her claim.” Raspardo,
770 F.3d at 117 (citing Poe, 282 F.3d at 140).
*11 Here, Plaintiff has not alleged that Ponte or the Doe
supervisors participated directly in the alleged constitutional
violation, that they were informed of the wrong and failed
to take remedial action, that they created a policy or custom
that allowed their subordinates to act deliberately indifferent
to Nelson's medical needs, or that they were deliberately
indifferent to information that unconstitutional acts were
occurring. At most, Plaintiff alleges that Ponte and the
Doe supervisors were grossly negligent in supervising the
other individual defendants who perpetrated the alleged
unconstitutional acts. (See Am. Compl. ¶¶ 107–08.) Even
these allegations are conclusory and fail to demonstrate
that Ponte or any other supervisor “knew or should have
known of a problematic pattern” that proximately caused the
unconstitutional acts leading to Nelson's death. See Raspardo,
770 F.3d at 117. Plaintiff alleges only that the supervisor
Defendants “had a duty to supervise” that they failed to
exercise “in a reasonable [manner] and not in a negligent
and/or intentionally reckless, wanton, deliberately indifferent
and/or malicious manner.” (Am. Compl. ¶¶ 104, 108.) These
allegations do not plausibly state that Ponte and the Doe
supervisors “ha[d] reason to know of facts creating a high
degree of risk of ... harm to [Nelson] and deliberately act[ed]
or fail[ed] to act in conscious disregard or indifference to
that risk.” Raspardo, 770 F.3d at 116. Accordingly, Plaintiff
has not stated a claim for supervisory liability, and the Court
dismisses count three of the Amended Complaint.
f. Municipal liability claim
Plaintiff alleges in count four of the Amended Complaint that
Defendants “through their official policy-makers developed,
created, facilitated, enabled and/or maintained policies,
practices and customs exhibiting deliberate indifference to
and/or reckless disregard for the lives, safety, health, physical
health” and wellbeing of inmates who were in Defendants'
“exclusive custody and care,” and those policies led to
Nelson's injuries and death. (Am. Compl. ¶ 112.)
The City argues that Plaintiff's allegations that Defendants
instituted or enabled a policy or custom that led to Nelson's
constitutional injuries are “speculative and conclusory” and
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do not state a claim for municipal liability. (Def. Mem. 15.)
Plaintiff argues that Defendants have displayed a deliberate
indifference to the medial needs of the inmates in their
care, as evidenced by the City's refusal to renew its contract
with Corizon at the end of 2015, and that Nelson's death
was a “highly predictable consequence” of such a policy of
deliberate indifference. (Pl. Opp'n Mem. 19–21.)
To establish a municipal liability claim, “a plaintiff is required
to plead and prove three elements: (1) an official policy or
custom that (2) causes the plaintiff to be subjected to (3)
a denial of a constitutional right.” Torraco v. Port Auth.
of N.Y. & N.J., 615 F.3d 129, 140 (2d Cir. 2010) (quoting
Wray v. City of New York, 490 F.3d 189, 195 (2d Cir.
2007)). An official municipal policy or custom may be:
(1) a formal policy officially endorsed by the municipality;
(2) actions or decisions made by municipal officials with
decision-making authority; (3) a practice so persistent and
widespread that it constitutes a custom of which policymakers
must have been aware; or (4) a failure by policymakers to
properly train or supervise their subordinates, such that the
policymakers exercised “deliberate indifference” to the rights
of the plaintiff and others encountering those subordinates.
See Iacovangelo v. Corr. Med. Care, Inc., 624 Fed.Appx.
10, 13–14 (2d Cir. 2015) (formal policy officially endorsed
by the municipality); Matusick v. Erie Cty. Water Auth.,
757 F.3d 31, 62 (2d Cir. 2014) (widespread and persistent
practice); Carter v. Inc. Vill. of Ocean Beach, 759 F.3d 159,
164 (2d Cir. 2014) (failure to train amounting to deliberate
indifference); Jones v. Town of E. Haven, 691 F.3d 72, 81
(2d Cir. 2012) (policymaking official's “express” or “tacit”
ratification of low-level employee's actions). “Although there
is no heightened pleading requirement for complaints alleging
municipal liability under [section] 1983, a complaint does
not ‘suffice if it tenders naked assertion[s] devoid of further
factual enhancement.’ ” Green v. City of Mount Vernon, 96
F. Supp. 3d 263, 301–02 (S.D.N.Y. 2015) (internal citations
omitted) (first citing Leatherman v. Tarrant Cty. Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993);
and then citing Iqbal, 556 U.S. at 678). To survive a motion
to dismiss a municipal liability claim, “a plaintiff must allege
facts tending to support, at least circumstantially, an inference
that ... a municipal policy or custom exists.” Santos v. New
York City, 847 F. Supp. 2d 573, 576 (S.D.N.Y. 2012) (citing
Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993)).
*12 Here, Plaintiff alleges that Defendants' conduct was
“performed and ... enabled pursuant to a custom and practice
that, while not formally approved in writing by Defendants ...
ha[s] been adopted and practiced as a practice and custom ...
so widespread so as to have the force of law.” (Am.
Compl. ¶ 120.) Plaintiff also alleges that the City has
perpetuated a “policy-in-practice” of failing to train and
supervise its employees, “evidencing deliberate indifference”
to their conduct. (Id. ¶¶ 121–23.) The Court understands
Plaintiff to assert multiple theories of municipal liability:
(1) a widespread practice sufficient to constitute a policy or
custom; (2) a failure to train employees to identify the medical
needs of inmates; and (3) a failure to supervise or discipline
officers despite having notice of inadequate medical care. (Id.
¶¶ 121–40, 142.) The Court considers the allegations as to
each theory.
i. Widespread practice
As noted above, a plaintiff “need not identify an express rule
or regulation,” to impose municipal liability, but can show
that the practice “of municipal officials was so persistent
or widespread as to constitute a custom or usage with the
force of law.” Littlejohn v. City of New York, 795 F.3d
297, 315 (2d Cir. 2015) (quoting Patterson v. County of
Oneida, 375 F.3d 206, 226 (2d Cir. 2004)). In other words,
a plaintiff can show that there is “a longstanding practice or
custom which constitutes the ‘standard operating procedure’
of the local governmental entity.” Jett v. Dallas Indep. Sch.
Dist., 491 U.S. 701, 737 (1989) (citing Pembaur v. City of
Cincinnati, 475 U.S. 469, 485–87 (1986)). “[I]solated acts ...
by non-policymaking municipal employees are generally not
sufficient to demonstrate a municipal custom, policy, or usage
that would justify municipal liability.” Jones, 691 F.3d at 81
(citations omitted); Edrei v. City of New York, ––– F. Supp.
3d ––––, ––––, 2017 WL 2367992, at *9 (S.D.N.Y. May
31, 2017) (“Proof of a single incident of unconstitutional
activity is usually insufficient to demonstrate the existence of
a policy, ....”). Indeed, before the actions of subordinate city
employees can give rise to section 1983 liability, the unlawful
practice must be “so manifest as to imply the constructive
acquiescence of senior policy-making officials.” Newton v.
City of New York, 779 F.3d 140, 156 n.18 (2d Cir. 2015)
(quoting Sorlucco v. N.Y.C. Police Dep't, 971 F.2d 864, 871
(2d Cir. 1992)).
There is no set number of incidents that make a practice
“widespread,” and courts have found a wide range of
instances insufficient to plausibly allege a municipal custom.
See Jones, 691 F.3d at 85 (finding that the plaintiff showed
“two instances, or at the most three” cases of unconstitutional
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conduct by a “small number of officers” that occurred “over
a period of several years,” which “fell far short of showing a
policy, custom, or usage of officers” or conduct “so persistent
that it must have been known to supervisory authorities”);
Giaccio v. City of New York, 308 Fed.Appx. 470, 472 (2d
Cir. 2009) (stating that the plaintiff “identifie[d], at most, only
four examples where the defendants might have disclosed
positive drug test results,” and holding that the “evidence
[fell] far short of establishing a practice that is so persistent
or widespread as to justify the imposition of municipal
liability” (citations and internal quotation marks omitted));
Cruz v. City of New York, No. 15-CV-2265, 2016 WL
234853, at *5 (S.D.N.Y. Jan. 19, 2016) (“[E]ight cases cited
from a municipality (New York) far bigger than Newburgh,
makes the number of cited cases particularly inadequate to
demonstrate plausibly a municipal custom.”); Tieman v. City
of Newburgh, No. 13-CV-4178, 2015 WL 1379652, at *17
(S.D.N.Y. Mar. 26, 2015) (finding thirteen instances of similar
excessive force allegations over a four year period were
insufficient to state a custom where, during that time period
“hundreds, if not thousands, of arrests were made”).
*13 Here, while Plaintiff identifies three other cases in
which other plaintiffs allege that the City provided inadequate
medical care at its jails and detention facilities, (see Am.
Compl. ¶ 116), Plaintiff has not plausibly alleged that the
unconstitutional deprivation of medical care is so widespread
as to constitute a municipal custom. First, the three cases
that Plaintiff identifies do not appear to have resulted in an
adjudication of wrongdoing by the City. (Id. ¶ 116 (citing two
cases that settled and a third that is pending).) Allegations
from other complaints, as opposed to adjudications by courts,
do not offer strong support for a municipal liability claim.
See Cruz, 2016 WL 234853, at *5 (finding plaintiff's reliance
on five civil cases asserting false arrest and malicious
prosecution claims insufficient to establish a custom or policy
for Monell purposes as “[a]ll of the cases cited settled short
of adjudication on the merits”); Tieman, 2015 WL 1379652,
at *17 (finding “unsubstantiated allegations in lawsuits and
complaints” in other actions “not persuasive” for purposes of
alleging a widespread policy or custom).
Furthermore, it is not clear from Plaintiff's description of the
cases that the factual allegations were similar to those here or
that the City's employees engaged in similar conduct pursuant
to the same alleged policy or custom. Even assuming that
the City's employees engaged in the same conduct in each
case, it does not follow that unconstitutional deprivation of
medical care was so widespread as to constitute a municipal
policy or custom. See Rubio v. County of Suffolk, 328
Fed.Appx. 36, 38 (2d Cir. 2009) (“[A] few violations by
a small group of subordinate County employees with no
policymaking authority [cannot] amount to the pervasive
and widespread custom or practice necessary for municipal
liability.” (alteration in original)).
Plaintiff points to the City's decision not to renew its contract
with Corizon at the end of 2015 as proof that “the systemic
deliberate indifference to and reckless disregard for the
medical needs of inmates like [Nelson] was so obvious and
so widespread so as to form a custom and practice,” (Am.
Compl. ¶ 117), but provides no evidence that the non-
renewal was related to Corizon's alleged treatment of inmates.
Thus, although Plaintiff plausibly alleges that at least some
Defendants were deliberately indifferent to Nelson's medical
needs, Plaintiff fails to allege corresponding facts from which
the Court can infer that Defendants acted pursuant to an
informal municipal policy or custom.
ii. Failure to train
“[A] city's failure to train its subordinates satisfies the policy
or custom requirement only where the need to act is so
obvious, and the inadequacy of current practices so likely to
result in a deprivation of federal rights, that the municipality
or official can be found deliberately indifferent to the need.”
Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007) (citing
City of Canton v. Harris, 489 U.S. 378, 390 (1989)). To show
deliberate indifference, a plaintiff must allege facts plausibly
showing that (1) “a policymaker [knew] ‘to a moral certainty’
that city employees will confront a particular situation;” (2)
“the situation either presents the employee with ‘a difficult
choice of the sort that training or supervision will make less
difficult’ or ‘there is a history of employees mishandling
the situation;’ ” and (3) “the wrong choice by the city
employee will frequently cause the deprivation of a citizen's
constitutional rights.” Wray, 490 F.3d at 195–96 (quoting
Walker v. City of New York, 974 F.2d 293, 297–98 (2d Cir.
1992)); see Reynolds, 506 F.3d at 192 (same).
“[W]here ... a city has a training program, a plaintiff
must ... ‘identify a specific deficiency in the city's training
program and establish that that deficiency is “closely related
to the ultimate injury,” such that it “actually caused” the
constitutional deprivation.’ ” Wray, 490 F.3d at 196 (quoting
Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 129 (2d
Cir. 2004)). “The plaintiff must offer evidence to support
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the conclusion that the training program was inadequate, not
‘[t]hat a particular officer may be unsatisfactorily trained’
or that ‘an otherwise sound program has occasionally
been negligently administered,’ and that a ‘hypothetically
well-trained officer’ would have avoided the constitutional
violation.” Okin v. Vill. of Cornwall-On-Hudson Police Dep't,
577 F.3d 415, 440–41 (2d Cir. 2009) (quoting Canton, 489
U.S. at 390–91); see Edrei, ––– F. Supp. 3d at ––––, 2017 WL
2367992, at *10 (finding that the plaintiffs plausibly alleged
a failure-to-train claim where the City armed police officers
with powerful long-range acoustic devices and placed those
officers in “expectantly volatile protests” without training
them).
*14 Here, Plaintiff fails to allege facts to state a failure-
to-train claim. Plaintiff does not include any allegations
about relevant training programs, or lack thereof, for
medical health professionals who work at City jails and
detention facilities. Instead, Plaintiff relies on the same
conclusory allegation throughout the Amended Complaint
—that Defendants “failed to adequately screen for hiring
and retention and failed to discipline, train, or otherwise
supervise and control their officers, doctors, nurses, medical
staff, medical personnel and/or employees.” (Am. Compl. ¶
113.) This general and conclusory allegation is insufficient
to plausible allege “a specific deficiency in the [C]ity's
training program ... [that] is closely related to [the] ultimate
injury, such that it ‘actually caused’ [Nelson's] constitution
deprivation.” See Wray, 490 F.3d at 196. Accordingly,
Plaintiff has failed to state a claim for municipal liability
based on a failure-to-train theory.
iii. Failure to supervise or discipline
A failure to “supervise city employees may constitute an
official policy or custom if the failure amounts to ‘deliberate
indifference’ to the rights of those with whom the city
employees interact.” Wray, 490 F.3d at 195–96 (quoting
Canton, 489 U.S. at 388). Similarly, “municipal inaction
such as the persistent failure to discipline subordinates who
violate civil rights could give rise to an inference of an
unlawful municipal policy of ratification of unconstitutional
conduct within the meaning of Monell.” Batista, 702 F.2d
at 397 (collecting cases). “Where plaintiffs seek to hold a
municipality liable under a theory of failure to supervise
or discipline, ... they must also show that the municipal
policymaker acted with deliberate indifference.” Pipitone v.
City of New York, 57 F. Supp. 3d 173, 191 (E.D.N.Y. 2014)
(citing Canton, 489 U.S. at 388–89); see Wray, 490 F.3d
at 195 (“The failure to train or supervise city employees
may constitute an official policy or custom if the failure
amounts to ‘deliberate indifference’ to the rights of those
with whom the city employees interact.” (citing Canton,
489 U.S. at 388)). Under that standard, “where the need for
more or better supervision to protect against constitutional
violations was obvious, but the policymaker failed to make
meaningful efforts to address the risk of harm to plaintiffs,”
deliberate indifference “may be inferred.” Cash v. County of
Erie, 654 F.3d 324, 334 (2d Cir. 2011) (alterations, citations,
and internal quotation marks omitted); see also Crenshaw
v. N.Y.C. Hous. Auth., ––– Fed.Appx. ––––, ––––, 2017
WL 2644637, at *4 (2d Cir. June 20, 2017) (explaining
that where a policymaker “exhibits deliberate indifference
to constitutional deprivations caused by subordinates,” the
“acquiescence may be properly thought of as a city policy or
custom that is actionable under § 1983” (internal quotation
marks omitted) (citing Amnesty Am., 361 F.3d at 126)).
Plaintiff has failed to plead a municipal liability claim based
on a theory of failure to supervise or discipline. Plaintiff
makes no factual allegations to support her claim that the
individual Defendants were not appropriately supervised
or that the institutional Defendants failed to supervise
their employees; she states only that “Defendants knew of
the systemic failure/refusal to provide proper, timely and
adequate medical care to inmates like [Nelson], ... as the
City has been sued for years for failing to provide inmates”
with adequate medical care, and that Defendants foreseeably
allowed their employees to “violate the Constitutional rights
of inmates” and endanger inmates' health and safety by failing
to punish employees for unlawful conduct. (Am. Compl. ¶¶
114, 116.) Plaintiff's allegations do not allow the Court to
infer that there was an “obvious” need “for more or better
supervision to protect against constitutional violations,” or
that Defendants failed to heed that need. See Cash, 654 F.3d
at 334.
*15 Because Plaintiff has not adequately alleged any theory
of municipal liability, the Court dismisses Plaintiff's claim for
municipal liability.
g. “Caused to be subjected”
Plaintiff alleges in count six of the Amended Complaint that
Defendants “directly and proximately caused [Nelson] to be
subjected to ... unlawful seizure of his person, cruel and
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Swanson v. City of New York, Not Reported in Fed. Supp. (2017)
2017 WL 3130322
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 13
unusual punishment, denial of medical treatment, denial of
due process” and various other injuries, in violation of section
1983. (Am. Compl. ¶¶ 155–59.) The City argues that Plaintiff
fails to allege a valid claim in count six. (Def. Mem. 17.)
Plaintiff does not respond to this argument.
To the extent that Plaintiff seeks to bring a claim for a
violation of Nelson's due process or other constitutional
rights, that claim appears to be duplicative of her claim in
count one. The Court otherwise dismisses any claim for
“caused to be subjected,” which is not a cognizable claim
under section 1983.
h. Intentional and negligent
infliction of emotional distress
Plaintiff alleges in count nine of the Amended Complaint
that Defendants “engaged in extreme and outrageous conduct
and intentionally, recklessly, wantonly, maliciously and/or
negligently caus[ed] [Nelson], Plaintiff and [Nelson's] two
minor children to suffer severe emotional distress.” (Am.
Compl. ¶ 203.)
The City argues that Plaintiff's allegations are conclusory and
that in New York, negligent infliction of emotional distress
and intentional infliction of emotional distress are theories of
recovery that can only be invoked when other tort remedies
are not available. (Def. Mem. 17.) Plaintiff does not respond
to the City's argument.
i. Intentional infliction of emotional distress claim
To state a claim for intentional infliction of emotional distress
in New York, a plaintiff must allege that the defendant
engaged in “extreme and outrageous conduct, which so
transcends the bounds of decency so as to be regarded as
atrocious and intolerable in a civilized society.” Turley v. ISG
Lackawanna, Inc., 774 F.3d 140, 157 (2d Cir. 2014) (quoting
Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143 (1985)). “To
prevail on such a claim, a plaintiff must establish that there
was ‘extreme and outrageous conduct,’ that the conduct was
undertaken with ‘intent to cause, or disregard of a substantial
probability of causing, severe emotional distress,’ and that
the conduct did in fact cause severe emotional distress.”
Id. at 157–58 (quoting Howell v. N.Y. Post Co., 81 N.Y.2d
115, 121 (1993)); see also Stuto v. Fleishman, 164 F.3d
820, 827 (2d Cir. 1999) (“Under New York law, a claim for
intentional infliction of emotional distress requires a showing
of (1) extreme and outrageous conduct; (2) intent to cause,
or reckless disregard of a substantial probability of causing,
severe emotional distress; (3) a causal connection between the
conduct and the injury; and (4) severe emotional distress.”).
“Whether the conduct alleged may reasonably be regarded as
so extreme and outrageous as to permit recovery is a matter
for the court to determine in the first instance.” Stuto, 164 F.3d
at 827.
Moreover, intentional infliction of emotional distress is a
“highly disfavored [tort] under New York law,” Turley, 774
F.3d at 158 (quoting Nevin v. Citibank, N.A., 107 F. Supp. 2d
333, 345–46 (S.D.N.Y. 2000)), and it is “to be invoked only
as a last resort,” id. (quoting McIntyre v. Manhattan Ford,
Lincoln–Mercury, Inc., 682 N.Y.S.2d 167 (App. Div. 1998)).
“[A]lthough the New York Court of Appeals has not set forth
detailed guidelines for when the tort [of intentional infliction
of emotional distress] may be available, it has cautioned that
a claim for [intentional infliction of emotional distress] may
not be sustainable ‘where the conduct complained of falls well
within the ambit of other traditional tort liability.’ ” Id. at 159
(quoting Fischer v. Maloney, 43 N.Y.2d 553, 557–58 (1978));
see also Salmon v. Blesser, 802 F.3d 249, 256 (2d Cir. 2015)
(“[U]nder New York law, an intentional infliction tort ‘may
be invoked only as a last resort ... to provide relief in those
circumstances where traditional theories of recovery do not.’
” (citations omitted)); Lloyd v. City of New York, ––– F. Supp.
3d ––––, ––––, 2017 WL 1207838, at *19 (S.D.N.Y. Mar.
31, 2017) (quoting Salmon, 802 F.3d at 256). For example,
“[o]ther New York courts have applied this dictum to exclude
claims for intentional infliction where a cause of action for
defamation may be asserted on the facts of the case.” Turley,
774 F.3d at 159 (collecting cases).
*16 Here, Plaintiff fails to plead a claim for intentional
infliction of emotional distress because her allegations are
wholly conclusory and state only the elements of the
claim, without factual allegations to explain what particular
conduct was “extreme and outrageous” and from what facts
the Court can infer that Defendants intended to cause, or
recklessly disregarded the risk of causing, severe emotional
distress. See Turley, 774 F.3d at 159; (id. ¶¶ 202–207). In
addition, Plaintiff's claim for “negligent and/or intentional
infliction of emotional distress” stems from the same conduct
as her claims for wrongful death, negligence, medical
malpractice and loss of consortium—namely, Defendants'
alleged deliberate indifference to Nelson's medical needs
and the resulting injuries and death to Nelson. The Court
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Swanson v. City of New York, Not Reported in Fed. Supp. (2017)
2017 WL 3130322
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therefore dismisses Plaintiff's claim for intentional infliction
of emotional distress.
ii. Negligent infliction of emotional distress claim
“Under New York law, a plaintiff may establish [a claim for
negligent infliction of emotional distress] in one of two ways:
(1) the ‘bystander’ theory; or (2) the ‘direct duty theory.’
” Lloyd, ––– F. Supp. at ––––, 2017 WL 1207838, at *20
(quoting Baker v. Dorfman, 239 F.3d 415, 421 (2d Cir. 2000)).
The “bystander theory” provides that
A defendant's conduct is negligent
[where it creates] an unreasonable
risk of bodily harm to a plaintiff
and such conduct is a substantial
factor in bringing about injuries
to the plaintiff in consequence of
shock or fright resulting from his
or her contemporaneous observation
of a serious physical injury or death
inflicted by the defendant's conduct on
a member of the plaintiff's immediate
family in his or her presence.
Baker, 239 F.3d at 421 (emphasis added) (quoting Bovsun v.
Sanperi, 61 N.Y.2d 219, 224 (1984)). Under the “direct duty”
theory, “a plaintiff suffers emotional distress caused by [a]
defendant's breach of a duty which unreasonably endangered
[the plaintiff's] own physical safety.” Id. (citation and internal
quotation marks omitted).
Plaintiff has not stated a claim for negligent infliction
of emotional distress under either theory. Based on
the facts in the Amended Complaint, Plaintiff did not
suffer an “unreasonable risk of bodily harm” from any
“contemporaneous observation” of Defendants' alleged
conduct toward Nelson, which conduct would have to
have caused “serious physical injury or death” in Plaintiff's
presence. See Baker, 239 F.3d at 421. Nor has Plaintiff pled a
direct duty theory, under which Defendants would have had
to “unreasonably endanger” Plaintiff's “own physical safety.”
See id.
The Court therefore dismisses Plaintiff's claim for negligent
infliction of emotional distress.
III. Conclusion
For the foregoing reasons, the Court denies the City's motion
to dismiss for insufficient service of process and personal
jurisdiction. The Court grants the City's motion to dismiss for
failure to state a claim and dismisses Plaintiff's Fourth and
Eighth Amendment claims, conspiracy claims under sections
1983 and 1985, failure to intercede claim under section 1986,
as well as Plaintiff's claims for supervisory liability, municipal
liability, “caused to be subjected” under section 1983 and
negligent and intentional infliction of emotional distress.
The Court grants Plaintiff thirty days from the date of this
Memorandum and Order to serve Defendants with a signed
and sealed summons and the Amended Complaint pursuant
to Rule 4 of the Federal Rules of Civil Procedure. If Plaintiff
fails to serve Defendants in compliance with Rule 4 within
thirty days, the Court will dismiss the Amended Complaint.
If Plaintiff properly serves Defendants within thirty days, her
claims for deliberate indifference to Nelson's medical needs,
medical malpractice, wrongful death, general negligence, loss
of consortium and punitive damages will proceed.
*17 SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2017 WL 3130322
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 139 of 175

Swanson v. City of New York
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (5)
Title PDF Court Date Type
1. Amended Complaint and Jury Demand
Atlee SWANSON, Individually, and as Adminisrtatrix of the
Estate of Alvin Nelson III (Plaintiff's Decedent), Plaintiff,
v. THE CITY OF NEW YORK, New York City Department
of Corrections Commissioner Joseph Ponte, Corizon
Health Incorporated and "John" and "Jane Does", Names
Being Fictitious Intended to be Employees, Agents,
Servants, Staff, Personnel, Officers, Correction Officers,
Medical Staff, Medical Personnel, Doctors, Nurses,
Medical Clinic Personnel, Medical Infirmary Personnel,
GMDC Medical Clinic/Infirmary Doctors/Nurses/Staff/
Personnel, Employees/Agents/Staff/Personnel/Medical
Staff/Medical Personnel/Doctors/nurses of Corizon Health
Incorporated, Medical Staff/Personnel/Employees/Agents/
Doctors/nurses of Rikers Island and/or the New York
City Department of Corrections and/or the New York City
Department of Health, Administrators and/or others of the
New York City Department of Corrections, Rikers Island
Correctional Facility and/or GMDC Facility, all Individually
and in their Official Capacities, and/or Inmates of Rikers
Island Correctional Facility/GMDC Who Committed the
Assault Upon Plaintiff, Whose Identities are Unknown to
Plaintiff but Known to the Defendants, Defendants.
2016 WL 8813169
— E.D.N.Y. Dec. 05, 2016 Pleading
2. Complaint and Jury Demand
Atlee SWANSON, Individually, and as Adminisrtatrix
of the Estate of Alvin Nelson III (Plaintiff's decedent),
Plaintiff, v. THE CITY OF NEW YORK, The New York
City Department of Corrections, The New York City
Department of Health, Rikers Island Correctional Facility,
New York City Department of Corrections Commissioner
Joseph Ponte, GMDC Facility, GMDC Medical Clinic/
Medical Facility, Corizon Health Incorporated, and "John"
and "Jane Does", names being fictitious intended to be
employees, agents, servants, staff, personnel, officers,
correction officers, medical staff, medical personnel,
doctors, nurses, medical clinic personnel, medical
infirmary personnel, GMDC medical clinic/infirmary
doctors/nurses/staff/personnel, employees/agents/staff/
personnel/medical staff/medical personnel/doctors/nurses
of Corizon Health Incorporated, medical staff/personnel/
employees/agents/doctors/nurses of Rikers Island and/or
the New York City Department of Corrections and/or the
New York City Department of Health, administrators and/
or others of the New York City Department of Corrections,
Rikers Island Correctional Facility and/or GMDC facility,
all individually and in their official capacities, and/or
inmates of Rikers Island Correctional Facility/GMDC who
committed the assault upon Plaintiff, whose identities
are unknown to Plaintiff but known to the Defendants,
Defendants.
2016 WL 3361590
— E.D.N.Y. June 17, 2016 Pleading
Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 140 of 175

Swanson v. City of New York
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Title PDF Court Date Type
3. Memorandum of Law in Support of Motion to
Dismiss Amended Complaint
Atlee SWANSON, Individually, and as Administratrix
of the Estate of Alvin Nelson III (Plaintiff's Decedent),
Plaintiff, v. THE CITY OF NEW YORK, the New York City
Department of Corrections, New York City Department
of Corrections Commissioner Joseph Ponte, Corizon
Health Incorporated, and "John" and "Jane Does", Names
Being Fictitious Intended to be Employees, Agents,
Servants, Staff, Personnel, Officers, Correction Officers,
Medical Staff; Medical Personnel, Doctors, Nurses,
Medical Clinic Personnel, Medical Infirmary Personnel,
GMDC Medical Clinic/Infirmary Doctors/Nurses/Staff/
Personnel, Employees/Agents/Staff/Personnel/Medical
Staff/Medical Personnel/Doctors/Nurses of Corizon Health
Incorporated, Medical Staff/ Personnel/Employees/Agents/
Doctors/Nurses of Rikers Island and/or the New York
City Department of Corrections and/or the New York City
Department of Health, Administrators and/or others of the
New York City Department of Corrections, Rikers Island
Correctional Facility and/or GMDC facility, all Individually
and in their Official Capacities, and/or Inmates of Rikers
Island Correctional Facility/GMDC Who Committed the
Assault Upon Plaintiff; Whose Identities are Unknown to
Plaintiff but Known to the Defendants, Defendant.
2017 WL 1532403
— E.D.N.Y. Feb. 27, 2017 Motion
4. Memorandum of Law in Reply to Plaintiff's
Opposition and in Further Support of the City of New
York's Motion to Dismiss
Atlee SWANSON, Individually, and as Administratrix
of the Estate of Alvin Nelson III (Plaintiff's decedent),
Plaintiff, v. THE CITY OF NEW YORK, New York City
Department of Corrections Commissioner Joseph Ponte,
Corizon Health Incorporated, and "John" and "Jane Does",
names being fictitious intended to be employees, agents,
servants, staff, personnel, officers, correction officers,
medical staff; medical personnel, doctors, nurses, medical
clinic personnel, medical infirmary personnel, GMDC
medical clinic/infirmary doctors/nurses/staff/personnel,
employees/agents/staff/personnel/medical staff/medical
personnel/doctors/nurses of Corizon Health Incorporated,
medical staff/personnel/employees/agents/doctors/nurses
of Rikers Island and/or the New York City Department
of Corrections and/or the New York City Department of
Health, administrators and/or others of the New York City
Department of Corrections, Rikers Island Correctional
Facility and/or GMDC facility, all individually and in
their official capacities, and/or inmates of Rikers Island
Correctional Facility/GMDC who committed the assault
upon Plaintiff; whose identities are unknown to Plaintiff but
known to the Defendants, Defendant.
2017 WL 1532404
— E.D.N.Y. Feb. 27, 2017 Motion
Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 141 of 175

Swanson v. City of New York
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Title PDF Court Date Type
5. Plaintiff's Memorandum of Law in Support of
Plaintiff's Opposition to Defendants' Motion to
Dismiss Plaintiff's Amended Complaint
Atlee SWANSON, Individually, and as Adminisrtatrix
of the Estate of Alvin Nelson III (Plaintiff's decedent),
Plaintiff, v. THE CITY OF NEW YORK, New York City
Department of Corrections Commissioner Joseph Ponte,
Corizon Health Incorporated, and "John" and "Jane Does",
names being fictitious intended to be employees, agents,
servants, staff, personnel, officers, correction officers,
medical staff, medical personnel, doctors, nurses, medical
clinic personnel, medical infirmary personnel, GMDC
medical clinic/infirmary doctors/nurses/staff/personnel,
empl9oyees/agents/staff/personnel/medical staff/medical
personnel/doctors/nurses of Corizon Health Incorporated,
medical staff/personnel/employees/agents/doctors/nurses
of Rikers Island and/or the New York City Department
of Corrections and/or the New York City Department of
Health, administrators and/or others of the New York City
Department of Corrections, Rikers Island Correctional
Facility and/or GMDC facility, all individually and in
their official capacities, and/or inmates of Rikers Island
Correctional Facility/GMDC who committed the assault
upon Plaintiff, whose identities are unknown to Plaintiff but
known to the Defendants, Defendants.
2017 WL 1532406
— E.D.N.Y. Feb. 27, 2017 Motion
Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 142 of 175

Swanson v. City of New York
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History
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Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 143 of 175

Cruz v. City of New York, Not Reported in Fed. Supp. (2016)
2016 WL 234853
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2016 WL 234853
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Arturo CRUZ, Plaintiff,
v.
The CITY OF NEW YORK; Police Officer
Eugene Donnelly, 46th Precinct; and Police
Officers “John DOE” #1-10, individually
and in their official capacities, Defendants.
15 Civ. 2265 (PAE)
|
Signed 01/19/2016
Attorneys and Law Firms
Arlen S. Yalkut, Yalkut, Saltzman & Israel, White Plains, NY,
for Plaintiff.
Carolyn Kay Depoian, New York City Law Department, New
York, NY, for Defendant.
OPINION & ORDER
PAUL A. ENGELMAYER, District Judge
*1 Plaintiff Arturo Cruz brings this action against the City
of New York (“the City”), Police Officer Eugene Donnelly
(collectively, the “defendants”), and Police Officers “John
Doe” #1-10 under 42 U.S.C. §§ 1983 and 1988 for violations
of his civil rights and the Constitutions of New York and the
United States. Defendants have filed a motion for judgment
on the pleadings under Federal Rule of Civil Procedure 12(c)
seeking partial dismissal, with prejudice, of the Complaint,
specifically, plaintiff's claim for municipal liability against
the City pursuant to Monell v. Dep't of Soc. Servs. of N.Y.C,
436 U.S. 658 (1978). For the reasons that follow, defendants'
motion is granted.
I. Background
A. Factual Background 1
1 The Court’s account of the facts is drawn from
the Complaint (“Compl.”), Dkt. 1. For the purpose
of resolving the motion by the defendants for
judgment on the pleadings, the Court assumes all
well-pled facts in the Complaint to be true, drawing
all reasonable inferences in favor of the plaintiff.
See Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir.
2010).
According to the Complaint, since August 2011, Cruz has
lived in Apartment 3F at 1391 Nelson Avenue, Bronx, New
York. Compl. ¶ 9. Since he began living there, there have been
attempts to deliver unordered packages to his apartment, but
he refused all deliveries. Id. ¶ 10.
On May 29, 2012, while Cruz was in his apartment, someone
knocked on the door and stated that there was a delivery
from Federal Express. Id. ¶ 11. Cruz opened the door slightly
and stated that he had not ordered anything; however, while
Cruz attempted to close the door, Officer Donnelly and other
officers pushed their way into the apartment, threw Cruz to
the ground, handcuffed him, and searched the apartment. Id.
¶¶ 12-13. Cruz remained handcuffed for approximately two
hours, after which he was brought to the 46th Precinct and
charged with criminal possession of a controlled substance.
Id. ¶¶ 15-16. On October 4, 2012, the charges were dismissed
by the District Attorney. Id. ¶ 17.
B. Procedural History
On March 26, 2015, Cruz filed the Complaint. Dkt. 1. The
Complaint was brought under 42 U.S.C. §§ 1983 and 1988 for
violations of Cruz’s civil rights and the Constitutions of New
York and the United States. Specifically, Cruz brought claims
for (1) false imprisonment, (2) false arrest, (2A) 2 negligent
treatment, (3) invasion of privacy, (4) civil rights violations,
(5) negligence, (6) municipal liability, and (7) battery.
2 The Complaint incorrectly lists this count, like
the one for false arrest, as “Second Count.” To
maintain the numbering alignment with the counts
that follow, the Court labels this count 2A.
On July 13, 2015, defendants answered. On November 25,
2015, defendants moved under Rule 12(c) for judgment on
the pleadings, partially dismissing the complaint against the
City “on the grounds that plaintiff has failed to state a claim
against the City of New York pursuant to § 1983,” Dkt. 13,
and filed a supporting memorandum of law, Dkt. 15 (“Defs.
Br.”). On December 7, 2015, Cruz filed a memorandum of law
opposing this motion, Dkt. 16 (“Pl. Br.”), and on December
14, defendants filed a reply, Dkt. 17 (“Defs. Reply”).
Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 144 of 175

Cruz v. City of New York, Not Reported in Fed. Supp. (2016)
2016 WL 234853
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
II. Legal Standards
A. Motions for Judgment on the Pleadings
*2 Federal Rule of Civil Procedure 12(c) provides that
“[a]fter the pleadings are closed—but early enough not
to delay trial—a party may move for judgment on the
pleadings.” A motion for judgment on the pleadings is
governed by “the same standard” as a motion to dismiss under
Rule 12(b)(6). Hayden v. Paterson, 594 F.3d 150, 160 (2d
Cir. 2010) (quoting Johnson v. Rowley, 569 F.3d 40, 43 (2d
Cir. 2009) (per curiam)); accord L–7 Designs, Inc. v. Old
Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011). Thus, on such
a motion, the Court accepts all of the non-movant’s factual
allegations as true and draws all reasonable inferences in the
non-movant’s favor. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007).
To survive a motion for judgment on the pleadings, a party
must plead sufficient factual allegations “to state a claim for
relief that is plausible on its face,” id. at 570, meaning that the
complaint must include “factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). Further, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id. “A grant of a motion pursuant to Rule 12(c) is
proper 'if, from the pleadings, the moving party is entitled to
judgment as a matter of law.'” Dargahi v. Honda Lease Trust,
370 Fed. App'x 172, 174 (2d Cir. 2010) (summary order)
(quoting Burns Int'l Sec. Servs., Inc. v. Int'l Union, 47 F.3d 14,
16 (2d Cir. 1995) (per curiam)).
“On a 12(c) motion, the court considers ‘the complaint, the
answer, any written documents attached to them, and any
matter of which the court can take judicial notice for the
factual background of the case.’ ” L–7 Designs, Inc., 647 F.3d
at 422 (quoting Roberts v. Babkiewicz, 582 F.3d 418, 419
(2d Cir. 2009) (per curiam)). The Court may also review any
document incorporated by reference in one of the pleadings.
Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004). Finally, the
Court may consider a document not specifically incorporated
by reference but on which the complaint relies and which is
integral to it. See Chambers v. Time Warner, Inc., 282 F.3d
147, 153 (2d Cir. 2002).
B. Alleging Municipal Liability
“[T]o hold a city liable under § 1983 for the unconstitutional
actions of its employees, a plaintiff is required to plead and
prove three elements: (1) an official policy or custom that
(2) causes the plaintiff to be subjected to (3) a denial of a
constitutional right.” Wray v. City of New York, 490 F.3d 189,
195 (2d Cir. 2007) (quoting Batista v. Rodriguez, 702 F.2d
393, 397 (2d Cir. 1983)) (internal quotation marks omitted).
There are four ways to establish the existence of an official
policy or custom, the first element of a Monell claim. A
plaintiff may plead that the constitutional violation was
caused by:
(1) a formal policy officially endorsed
by the municipality; (2) actions taken
by government officials responsible
for establishing the municipal policies
that caused the particular deprivation
in question; (3) a practice so consistent
and widespread that, although not
expressly authorized, constitutes a
custom or usage of which a
supervising policy-maker must have
been aware; or (4) a failure by
policymakers to provide adequate
training or supervision to subordinates
to such an extent that it amounts to
deliberate indifference to the rights of
those who come into contact with the
municipal employees.
*3 Brandon v. City of New York, 705 F. Supp. 2d 261, 276–
77 (S.D.N.Y. 2010) (citations omitted); see also Spears v. City
of New York, No. 10 Civ. 3461 (JG), 2012 WL 4793541, at
*11 (E.D.N.Y. Oct. 9, 2012).
Plaintiffs alleging the existence of a municipal policy or
custom often point to the filing of other complaints and/or
lawsuits bringing similar claims. Courts considering Monell
claims have assigned different levels of significance to the
filing of prior lawsuits. Some have suggested that non-
adjudicated claims are irrelevant. See Morris v. City of New
York, No. 12 Civ. 3959 (JG), 2013 WL 5781672, at *11
(E.D.N.Y. Oct. 28, 2013) (“The fact that two of the defendants
as well as a non-defendant supervising officer have had
civil suits brought against them in the past that resulted in
settlements is not even evidence of wrongdoing, let alone
that the City has a custom or policy that fosters or results
in wrongdoing.”). But others have held that prior complaints
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are relevant insofar as they may put a municipality on notice
of possible or actual constitutional violations. See Edwards
v. City of New York, No. 14 Civ. 10058 (KBF), 2015 WL
5052637, at *6 n.3 (S.D.N.Y. Aug. 27, 2015) (noting that
although “[i]t is certainly not always the case that the fact
of a series of suits alleging similar claims supports a Monell
claim ... the point is one of notice”).
III. Discussion
The first element of a Monell claim is the existence of
an official policy or custom. The Sixth Count of the
Complaint alleges that the City is liable for the actions of the
individual police officers because the officers' actions “were
carried out by the aforementioned individual defendants
in their capacities as police officers and officials pursuant
to the customs, policies, usages, practices, procedures,
and rules of [the City] and the New York City Police
Department [ ('N.Y.P.D.') ], all under the supervision
of ranking officers of said department.” Compl. ¶ 52.
Specifically, the customs alleged “include, but are not limited
to, the following unconstitutional practices: a) fabricating
evidence against innocent persons erroneously arrested;
b) imprisoning innocent persons wrongfully apprehended;
[and] c) [i]mprisoning innocent persons notwithstanding the
existence of credible evidence which exonerates the accused
of any criminal wrongdoing.” Id. ¶ 53.
Putting aside non-cognizable conclusory statements, see
Iqbal, 556 U.S. at 678, the Complaint principally supports its
Monell claim by alleging that “unconstitutional customs and
practices may be inferred from repeated instances of similar
wrongful conduct.” See Compl. ¶ 54. The Complaint therefore
appears to allege the element of an official policy or custom
on the theory of a consistent and widespread practice; the
Complaint does not, in contrast, plead facts tending to suggest
or support the existence of a formal policy endorsed by the
City, an action taken by a government official with authority
to make municipal policy, or of a failure by policymakers to
provide adequate training or supervision.
*4 Cruz’s allegation of repeated instances of similar
wrongful conduct are supported in the Complaint by citation
to eight civil rights actions filed against the City in the
Southern and Eastern Districts of New York. See id. Other
than the case name and case number, the Complaint provides
no information about the cases it cites, no description of
evidence adduced in those cases, and no explanation of
how the cases, individually or taken together, demonstrate
a consistent and widespread practice sufficient to constitute
an unlawful policy or custom. The Court, nonetheless,
has reviewed the publicly available dockets sheets for the
cases cited by Cruz, 3 as well as pertinent case filings for
those cases, 4 including, where available, the complaints and
amended complaints, dispositions on dispositive motions, and
stipulations and orders of dismissal and/or settlement. 5
3 Douglas v. City of New York, No. 03 Civ. 6475
(S.D.N.Y.); Flood v. City of New York, No. 03 Civ.
10313 (S.D.N.Y.); Richardson v. City of New York,
02 Civ. 3651 (E.D.N.Y.); Stewart v. City of New
York, 05 Civ. 2375 (S.D.N.Y.) (consolidated with
06 Civ. 15490); Taylor v. City of New York, 01 Civ.
5750 (E.D.N.Y.); Vasquez v. City of New York, No.
05 Civ. 3552 (E.D.N.Y.); Williams v. City of New
York, 05 Civ. 4013 (S.D.N.Y.); and Burton v. City
of New York, No. 06 Civ. 6884 (S.D.N.Y.).
4 The filings are generally available on the Southern
District’s and Eastern District’s Electronic Case
Filing system. Records for Flood were obtained in
hard copy from the Records office for closed cases
at the Southern District of New York Courthouse
at 500 Pearl Street, New York, NY. Records for
Douglas, however, are temporarily unavailable,
according to the Records clerk, because they are
in the process of being archived out-of-state.
The Douglas case docket sheet reveals, however,
that the case was brought in August 2003 and
discontinued before resolution on the merits. The
Court is confident that its decision would not
be altered by reviewing the underlying filings in
Douglas.
5 The Court here provides a general overview of the
cases, with specific citations only where quoting
directly from specific documents or discussing
issues unique to particular cases. The Court may
properly consider the case docket sheets and filings
because Cruz’s Complaint, in citing the cases in
support of his Monell claim, relies on them, see
Chambers, 282 F.3d at 153, and because they are
public court documents of which the Court may
take notice, for the limited purposes of establishing
that the suits were filed, how they were disposed,
and for the fact of the allegations made but not for
the truth of what the allegations asserted. See Glob.
Network Commc'ns, Inc. v. City of New York, 458
F.3d 150, 157 (2d Cir. 2006) (“A court may take
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judicial notice of a document filed in another court
not for the truth of the matters asserted in the other
litigation, but rather to establish the fact of such
litigation and related filings.” (quoting Int'l Star
Class Yacht Racing Ass'n v. Tommy Hilfiger U.S.A.,
Inc., 146 F.3d 66, 70 (2d Cir. 1998)) (internal
quotation marks omitted)).
The cases were filed between 2001 and 2006. All brought
claims related to, inter alia, false arrest and malicious
prosecution of the respective plaintiffs, who were arrested and
charged, in all but one of the cases, with drug-related crimes. 6
The arrests and charges were all the result of so-called “buy-
and-bust” operations 7 conducted by the N.Y.P.D.
6 The plaintiff in Williams was charged with
tampering with physical evidence and disorderly
conduct.
7 A buy-and-bust is a tactic by which an “officer,
posing as a narcotics user, purchases the drugs, and
the seller is arrested shortly thereafter.” Ayala v.
Speckard, 131 F.3d 62, 64 (2d Cir. 1997).
In addition to claims against individual officers, all of the
cases alleged municipal liability against the City of New
York. However, in two cases, the claims against the City
were dropped by the plaintiff before the case was resolved. 8
The Monell allegations are generally similar across the
cases cited. Including those cases in which the municipal
liability claims were dropped by the plaintiffs, four cases
contained a nearly identical allegation to Cruz’s regarding
the custom or practice of “imprisoning innocent persons
notwithstanding the existence of credible evidence which
exonerates the accused of any criminal wrongdoing.” Compl.
¶ 53(c). 9 In addition, five cases contained allegations similar
to “fabricating evidence against innocent persons erroneously
arrested,” and four had allegations similar to “imprisoning
innocent persons wrongfully apprehended,” Compl. ¶¶ 53(a)
& (b); in the cases cited, however, these customs or practice
were alleged to be specific to those arrested “during buy-and-
bust operations.” 10 Like the present Complaint, a number of
the cases rely on citations to prior lawsuits, specifically, the
same ones cited here, to attempt to support an inference that
such customs or policies exist; 11 none point to other specific
facts in support of their allegations of the existence of the
customs or practices identified.
8 See Taylor, 01 Civ. 5750, Dkt. 20 (plaintiff
conceded claims against City at oral argument on
defendants' summary judgment motion); Burton,
No. 06 Civ. 6884, Dkt. 6 (plaintiff voluntarily
dismissed municipal liability claim).
9 E.g., Williams, 05 Civ. 4013, Dkt. 1 ¶ 66(c) (using
the word “arresting” instead of “imprisoning”).
10 E.g., id., ¶¶ 66(a) & (b) (using the word “arresting”
instead of “imprisoning”).
11 See, e.g., Vasquez, No. 05 Civ. 3552, Dkt. 1, ¶ 69
(citing Douglas, Flood, Richardson, Stewart, and
Taylor).
*5 All of the cases cited settled short of adjudication on
the merits. In each, the stipulation and order of settlement
contained language to the effect that the settlement should not
be deemed an admission of wrongdoing, and importantly, that
“[n]othing contained herein shall be deemed to constitute a
policy or practice of the City of New York or the New York
City Police Department.” 12
12 See, e.g., Williams, 05 Civ. 4013, Dkt. 20, ¶ 5.
Cruz’s allegations, relying on citations to these cases, fall far
short of establishing a custom sufficient to support a Monell
claim. To be sure, “an act performed pursuant to a 'custom'
that has not been formally approved by an appropriate
decisionmaker may fairly subject a municipality to liability on
the theory that the relevant practice is so widespread as to have
the force of law.” Bd. of Cty. Comm'rs of Bryan Cty. v. Brown,
520 U.S. 397, 404 (1997). But the lawsuits cited by Cruz,
without much more, do not plausibly suggest a “practice ... so
widespread as to have the force of law.” Id.
Judge Karas’s recent decision in Tieman v. City of Newburgh,
No. 13 Civ. 4178 (KMK), 2015 WL 1379652 (S.D.N.Y. Mar.
26, 2015), is instructive. In Tieman, the complaint alleged
that the City of Newburgh “ ‘has a policy or practice of
using excessive force when effectuating arrests, and fails to
train and/or discipline its employees to prevent violations
of arrestee’s [sic] constitutional rights.’ ” Id. at *14. The
complaint cited what it described as “an extensive history
of lawsuits and other complaints,” alleging that at least
nine excessive-force suits were filed against the city in the
preceding five years—including five that involved, as the
plaintiff’s case did, allegations of unnecessary dog bites.
Id. at *15. It further alleged that the City was on notice
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of the excessive force problem because of comments from
citizens at public forums and because of a consulting group’s
report on the police department’s practices. Id. at * 3. Judge
Karas, however, held that these pleadings were insufficient
to suggest a widespread custom or practice. Id. at *17. He
noted that none of the lawsuits cited by the plaintiff had
“result[ed] in an adjudication of liability.” Id. (alteration
in original) (quoting Walker v. City of New York, No. 12
Civ. 5902 (PAC), 2014 WL 1259618, at *3 (S.D.N.Y. Mar.
18, 2014)). “Simply put,” Judge Karas concluded, “the fact
that there were allegations of thirteen instances of excessive
force during arrests over four [or five] years (none of which
involved findings or admissions of culpability) during which
hundreds, if not thousands, of arrests were made does not
plausibly demonstrate that the use of excessive force during
arrest was so frequent and pervasive to constitute a custom.”
Id.
The same logic is decisive here. None of the lawsuits cited
resulted in an adjudication or admission of liability and the
number of suits does not suggest a pervasive illegal practice.
See Walker, 2014 WL 1259618, at *3 (“The paltry number
of complaints (none resulting in an adjudication of liability),
spread over a period so long in a city so large, hardly suggests
the frequency or pervasiveness of the purported custom that
is required to state a Monell claim.”). Indeed, Cruz’s claim of
a municipal “custom” is even weaker than in Tieman. While
the length of time spanned by the cited lawsuits (six years) is
about the same as in Tieman, there is a significant gap—nine
or more years—between the time the cited cases were filed
and Cruz’s initiating his suit. Furthermore, eight cases cited
from a municipality (New York) far bigger than Newburgh,
makes the number of cited cases particularly inadequate to
demonstrate plausibly a municipal custom. See also Calderon
v. City of New York, No. 14 Civ. 1082 (PAE), 2015 WL
5802843, at *15 (S.D.N.Y. Oct. 5, 2015) (dismissing a Monell
claim that cited 16 cases against the City), reconsideration in
part granted on other grounds, 2015 WL 6143711 (S.D.N.Y.
Oct. 19, 2015).
*6 The Court therefore holds that Cruz has failed to
plausibly plead that the City has an official policy or custom,
as demonstrated by a widespread and consistent practice,
which led to the alleged violations of Cruz’s federally
protected rights. 13
13 Because the Court holds that Cruz has failed to
adequately plead the first element of a Monell
claim, the Court does not reach defendants'
argument that Cruz also fails to adequately plead
the second element, to wit, that the alleged policy
or custom caused the denial of Cruz’s federal or
constitutional rights. See Defs. Br. 6–7; Defs. Reply
3–4; see also Pl. Br. 8.
Cruz’s arguments against dismissal are easily rejected. First,
Cruz attempts to re-characterize the relevant “policy and
procedure” as the execution of “controlled deliveries of ...
narcotics in packages delivered to various apartments.” Pl.
Br. 6. 14 Cruz’s Complaint, however, makes no mention
of a policy of “controlled deliveries”; he cannot add such
allegations in an opposition brief. See Olde Monmouth
Stock Transfer Co., Inc. v. Depository Trust & Clearing
Corp., 485 F. Supp. 2d 387, 393 (S.D.N.Y. 2007) (“It is
long-standing precedent in this circuit that parties cannot
amend their pleadings through issues raised solely in their
briefs.” (quoting Fadem v. Ford Motor Co., 352 F. Supp. 2d
501, 516 (S.D.N.Y. 2005)) (alteration and internal quotation
marks omitted)); Lazaro v. Good Samaritan Hosp., 54 F.
Supp. 2d 180, 184 (S.D.N.Y. 1999) (“[I]t is axiomatic that
the Complaint cannot be amended by the briefs in opposition
to a motion to dismiss.” (quoting O'Brien v. Nat'l Property
Analysts Partners, 719 F. Supp. 222, 229 (S.D.N.Y. 1989))
(internal quotation marks omitted)). 15
14 Typically, a “controlled delivery” occurs when
law enforcement has “lawfully discover[ed] ...
contraband in transit[, and] ... rather than simply
seizing the contraband or destroying it, [they
deliver] the container to its consignee, allowing the
container to continue its journey to the destination
contemplated by the parties. The person dealing in
the contraband can then be identified upon taking
possession of and asserting dominion over the
container.” United States v. Singh, 811 F.2d 758,
760 (2d Cir. 1987) (quoting Illinois v. Andreas, 463
U.S. 765, 769 (1983)).
15 Moreover, the cases cited by Cruz in support of
his Monell claim alleged actions and practices
related to buy-and-bust operations, not controlled
deliveries.
Second, Askins v. Doe No. 1, 727 F.3d 248 (2d Cir. 2013),
on which Cruz relies, Pl. Br. 6–7, does not rescue Cruz’s
claim. “Establishing the liability of the municipality requires a
showing that the plaintiff suffered a tort in violation of federal
law committed by the municipal actors and, in addition, that
their commission of the tort resulted from a custom or policy
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of the municipality.” Id. at 253 (emphasis added). The key
issue in Askins was whether a claim for municipal liability
under § 1983 could be maintained where the plaintiff did not
procure a judgment, or even could not pursue a claim, against
the particular municipal actors who committed the alleged
federal law tort. See id. at 252–55. In a portion of the opinion
highlighted by Cruz, the Second Circuit ruled:
But where the plaintiff has brought
a timely suit against the municipality
and has properly pleaded and proved
that he was the victim of the federal
law tort committed by municipal
actors and that the tort resulted from
an illegal policy or custom of the
municipality, the fact that the suit
against the municipal actors was
untimely, or that the plaintiff settled
with them, or abandoned the suit
against them, is irrelevant to the
liability of the municipality.
*7 Id. at 254.
Cruz does not explain why this passage supports his
opposition to the present motion. If his intent is to discount
the significance of the fact that the cases he cites in support
of his Monell claim all settled, his reliance is in error. The
above passage holds that a plaintiff need not adjudicate
a claim, or recover, against the particular municipal actor
alleged to have committed the federal law tort to establish
liability against the municipality. That is a separate issue
from whether a plaintiff can allege specific facts, such
as prior lawsuits, that make plausible the existence of a
widespread and consistent practice—equivalent to a custom
or policy—that caused the municipal actor’s federal law tort.
Where a prior lawsuit against a municipality or municipal
actor was settled—especially where the settlement contains a
denial of wrongdoing—and did not produce an adjudication
establishing liability or wrongdoing, the prior lawsuit does
not demonstrate that the prior unlawful action took place,
and therefore is less able to support the allegation that there
is a widespread practice or custom that violates federal law.
Here, Cruz fails to cite to even a single instance in which
the City, or an individual acting on its behalf, has been found
to have committed a federal law tort along the lines alleged
by Cruz. This significantly undermines the plausibility of his
contention that the officers here were acting pursuant to an
extant illegal practice, policy, or custom.
Third, and finally, Cruz argues that the motion should not
be granted because the doctrine of qualified immunity does
not apply to municipalities. Pl. Br. 7–8. However, defendants'
motion does not invoke or rely on qualified immunity, but
rather Cruz’s failure to state a claim against the City under §
1983.
CONCLUSION
For the foregoing reasons, the Court grants defendants'
motion for partial judgment on the pleadings and dismisses,
with prejudice, the Sixth Count of the Complaint for
municipal liability against the City. The Clerk of Court is
directed to terminate the motion pending at docket number 13.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2016 WL 234853
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Cruz v. City of New York
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (4)
Title PDF Court Date Type
1. Memorandum of Law in Opposition to Defendants'
Motion for Summary Judgment
Arturo CRUZ, Plaintiff, v. THE CITY OF NEW YORK,
Police Officer Eugene Donnelly, 46 Precinct, P.O.'s "John
Doe" # 1-10 individually and in their official capacities,
Defendant.
2016 WL 9461954
— S.D.N.Y. June 17, 2016 Motion
2. Memorandum of Law in Support of Defendants'
Motion for Summary Judgment
Arturo CRUZ, Plaintiff, v. THE CITY OF NEW YORK,
Police Officer Eugene Donnelly, 46 Precinct, P.O's "John
Doe" #1-10" individually and in their official capacities,
Defendants.
2016 WL 9461953
— S.D.N.Y. May 23, 2016 Motion
3. Memorandum of Law in Opposition to Defendants'
Motion to Dismiss
Arturo CRUZ, Plaintiff, v. THE CITY OF NEW YORK,
Police Officer Eugene Donnelly, 46 Precinct, P.O.'s "John
Doe" #1-10 individually and in their official capacities,
Defendant.
2015 WL 13823501
— S.D.N.Y. Dec. 07, 2015 Motion
4. Docket 1:15-CV-02265
Cruz v. The City of New York et al
— S.D.N.Y. Mar. 26, 2015 Docket
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Cruz v. City of New York
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (1)
1. Cruz v. City of New York
2016 WL 234853 , S.D.N.Y. , Jan. 19, 2016
Related References (1)
2. Cruz v. City of New York
232 F.Supp.3d 438 , S.D.N.Y. , Feb. 08, 2017
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Tieman v. City of Newburgh, Not Reported in F.Supp.3d (2015)
2015 WL 1379652
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Rivera v. Westchester County, S.D.N.Y., September
23, 2020
2015 WL 1379652
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Steven TIEMAN, Plaintiff,
v.
CITY OF NEWBURGH, Po Joseph Palermo,
Po John Maguire, Po Eric Eltz, Po Patrick Kelly,
Po Anthony Guidice, Po Christopher Lahar,
Town of Newburgh, Sgt William Ransom,
Unknown Police Officers 1–5, Defendants.
No. 13–CV–4178 (KMK).
|
Signed March 26, 2015.
Attorneys and Law Firms
David A. Zelman, Esq., The Law Office of David A. Zelman,
Brooklyn, NY, for Plaintiff.
Roberta D. Asher, Esq., Asher & Associates, New York, NY,
for Plaintiff.
David Lewis Posner, Esq., McCabe & Mack LLP,
Poughkeepsie, NY, for Defendant City of Newburgh.
Carl Steven Sandel, Esq., Drew William Sumner, Esq., Morris
Duffy Alonso & Faley, New York, NY, for Defendants Town
of Newburgh and SGT William Ransom.
OPINION & ORDER
KENNETH M. KARAS, District Judge.
*1 Plaintiff Steven Tieman brought suit against Defendants
City of Newburgh (the “City”); City of Newburgh
Police Officers Joseph Palermo, John Maguire, Eric Eltz,
Patrick Kelly, Anthony Giudice, Christopher Lahar, and
Unknown Police Officers 1–5; the Town of Newburgh (the
“Town”); Town of Newburgh Sergeant William Ransom;
and State Trooper Moises Nales. The City of Newburgh
moves to dismiss all claims against the City and against
Defendants Palermo, Maguire, Eltz, Kelly, Guidice, and
Lahar (collectively, the “City Police Officer Defendants”),
and for the Court to reject Plaintiff's request to file his
Proposed Amended Complaint (“PAC”). The Town of
Newburgh moves to dismiss all claims against the Town
and against Defendant Ransom, and for the Court to reject
Plaintiff's PAC. For the following reasons, the Town's Motion
To Dismiss is granted and the City's Motion To Dismiss is
denied in part and granted in part.
I. Background
A. Factual Background
The following factual summary is derived from Plaintiff's
PAC, which the Court takes as true for the purpose of
these Motions To Dismiss. 1 These claims arise out of an
incident that occurred on June 17, 2010, at approximately
5:45 p.m. (Pl.'s Mem. of Law in Opp'n (“Pl.'s Mem.”)
Ex. A(PAC), at ¶ 10 (Dkt. No. 46).) Plaintiff alleges that
he “was lawfully driving on a public street in Newburgh,
New York, when he was approached by a police officer,
upon information and belief, [Defendant Eltz], who was
wearing plain clothes.” (Id.) 2 Without warning and “for no
apparent reason,” Defendant Eltz “began to yell” at Plaintiff,
and “told him to get out of the car.” (Id. ¶ 11.) Plaintiff
further alleges that he “was frightened and thought he was
being robbed, so he drove away.” (Id.) Defendant Eltz and
other police officers, including Defendants Maguire, Kelly,
Guidice, Lahar, and Palermo, gave chase to Plaintiff. (Id. ¶
12.) “At some point thereafter, and prior to Plaintiff stopping
his vehicle,” Defendants Ransom and Nales joined the chase.
(Id.) “After a brief car chase, [P]laintiff pulled over to the
side of the road, put his pickup truck in park, turned off the
engine, and raised his hands to surrender.” (Id. ¶ 13.) Plaintiff
alleges that, when he stopped his vehicle, Defendant Nales
was located near Plaintiff's vehicle. (Id.)
1 As explained below, Plaintiff's PAC will be
accepted unless it would be subject to dismissal
pursuant to Federal Rule of Civil Procedure
12(b)(6). Because the PAC contains all of the
factual allegations contained in Plaintiff's original
Complaint, as well as additional allegations, the
Court will merely address the sufficiency of the
factual allegations in the PAC. If any portion
of the PAC would be subject to dismissal, the
corresponding portion of the Complaint necessarily
will also be dismissed under Rule 12(b) (6).
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Tieman v. City of Newburgh, Not Reported in F.Supp.3d (2015)
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2 Plaintiff asserts that he was lawfully driving that
evening, but he was “convicted of driving while
impaired by alcohol in violation of Vehicle and
Traffic Law § 1192(1), criminal possession of
a controlled substance in the seventh degree,
resisting arrest, unlawful fleeing a police officer in
a motor vehicle in the third degree (two counts)
and reckless driving in conjunction with this
incident.” (Mem. of Law in Supp. of the Town of
Newburgh and Sergeant William Ransom's Mot. To
Dismiss (“Town's Mem.”) 2 n. 1 (Dkt. No. 30); see
also Newburgh's Reply Br. in Supp. of 12(b) (5)
and 12(b)(6) Dismissal (“City's Reply”) 1–2 (Dkt.
No. 47).) Whether Plaintiff was driving lawfully is
not relevant to the instant Motions, so the Court
declines to assess whether, and to what extent, it
should consider these seemingly undeniable facts
put forth by Defendants. However, counsel for
Plaintiff may someday be called upon to explain the
good faith basis for this allegation.
Next, Plaintiff alleges that “one of the defendant police
officers, on information and belief [Defendant Maguire],
opened the truck door and ordered his police dog to attack
[P]laintiff.” (Id. ¶ 14.) Plaintiff “was thereupon attacked by
the police dog, and punched numerous times by [Defendant
Maguire].” (Id.) Plaintiff alleges that he was “not resisting the
police officers in any way,” but he nonetheless was dragged
from his truck and thrown to the ground by Defendant
Maguire and other officers, and was “beaten severely by the
defendant officers, who at this point were laughing and telling
the dog what a good job he had done.” (Id. ¶ 15.) Plaintiff
alleges that at that point “[t]here were at least fifteen or twenty
police officers surrounding” him. (Id.) Plaintiff alleges that
though he was “handcuffed and secured by the police officers,
the police dog was again ordered to attack” him, which attack
was “completely unjustified, and resulted in numerous further
physical injuries.” (Id. ¶ 16.)
*2 Plaintiff alleges that the injuries he suffered as a result
of this assault “included deep dog bites and lacerations to
his left side and left leg; bruising to his jaw, head, back, and
arms; lacerations to his right elbow; and a broken left ring
finger (caused by a dog bite).” (Id. ¶ 17.) Plaintiff alleges that
he was arrested, taken to the Newburgh City police station,
then taken for medical treatment at St. Luke's Hospital,
and then to Orange County Jail, where he received further
medical treatment. (Id. ¶ 18.) Plaintiff alleges that his wounds
became infected while in jail, and that he suffered severe and
permanent injuries, including “scarring and weakness in his
limbs,” “severe physical pain,” and “serious and permanent
psychological and emotional injuries, including depression,
flashbacks, nightmares, unreasonable fear of dogs and police
officers, and inability to concentrate.” (Id. ¶¶ 19–21.)
According to Plaintiff, the City “has a policy or practice of
using excessive force when effectuating arrests, and fails to
train and/or discipline its employees to prevent violations of
arrestee's [sic] constitutional rights.” (Id. ¶ 22.) Additionally,
Plaintiff claims that the City “has an extensive history of
lawsuits and other complaints alleging the use of excessive
force by its employees.” (Id. ¶ 23.) In particular, according
to Plaintiff, “[p]ublic court records reveal at least nine suits
filed in the five years before the incident [that is the basis
for this Action] which allege that police officers employed by
[the City] used excessive force during the course of an arrest,”
“[a]t least five” of which incidents “involved allegations of
unnecessary and excessive dog bites.” (Id.) Plaintiff has listed
and described the following lawsuits:
In Burley. et al. v. City of Newburgh, et al., 07–CV–
3336, the plaintiffs alleged that on May 11, 2005, police
officers employed by [the City] falsely arrested one
plaintiff and sprayed him with pepper spray, threw him
to the ground, and kicked him in the face causing him to
lose consciousness. The other plaintiff alleged that police
officers employed by [the City] falsely arrested him, hit
him in the face, and kicked him in the ribs.
In Bryant v. City of Newburgh, et al., 06–CV–4200, the
plaintiff alleged that he was falsely arrested with excessive
force by police officers employed by [the City] on both
May 17, 2005 and June 22, 2006.
In Garcia. et al. v. City of Newburgh, et al., 08–CV–
1198, [the] plaintiff alleged that on March 30, 2007, he
was falsely arrested with excessive force by police officers
employed by [the City], including [Defendant Kelly].
In Cooper. et al. v. City of Newburgh, et al., 09–CV–2234,
four plaintiffs alleged that on March 31, 2007, July 8, 2007,
August 8, 2007, and August 9, 2007, respectively, [City]
police officers arrested one of the plaintiffs with excessive
force. The complaint alleged that during the course of
each arrest, officers directed police dogs to “bite and hold”
causing serious injuries to each plaintiff.
*3 In Follini v. City of Newburgh, et al., 08–CV–
6347, [the] plaintiff alleged that on July 22, 2007, police
officers employed by [the City], including [Defendant
Palermo], falsely arrested [the] plaintiff with excessive
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force, including pushing [the] plaintiff to the ground,
repeatedly administering a taser while [the] plaintiff was
on the ground, and administering pepper spray directly to
[the] plaintiff's face.
In Allen v. City of Newburgh[,] et al., 08–CV–6771,
the plaintiff alleged that on August 12, 2007, officers
employed by [the City] arrested him with excessive force,
causing injuries including loss of consciousness, shoulder
dislocation, facial bruising, and muscle spasms.
In Baynes v. City of Newburgh, et al., 08–CV–6442, [the]
plaintiff alleged that on August 25, 2007, police officers
employed by [the City], including [Defendant Palermo]
and [Defendant Kelly], physically assaulted, maced, and
tased[ ] both [the] plaintiff and additional arrestees who
were not resisting arrest.
In Fahey, et al. v. Lt. Peter Leach, et al., 08–CV–8280,
[the] plaintiffs alleged that on September 30, 2007, multiple
[City] police officers assaulted [the] plaintiffs at a gas
station and at the police precinct.
In Whitfield v. City of Newburgh, et al., 08–CV–8516, the
deceased plaintiff, through his estate, alleged that on July 8,
2008, officers employed by [the City] administered a taser
to [the] plaintiff and ordered a police dog to attack [the]
plaintiff multiple times, causing his death.
(Id. ¶¶ 24–32 (italics omitted).) Plaintiff further alleges that
the City “routinely reached settlement agreements” with the
Plaintiffs in these cases. (Id. ¶ 33.) In particular, Plaintiff
claims that “Garcia settled in 2008, Bryant, Cooper and
Bavnes settled in 2010, Fahey and Allen settled in 2011,
and Follini settled in 2012.” (Id .) Plaintiff further asserts
that while the “amount of each settlement agreement [is] not
publically available, upon information and belief, most, if not
all, of the above-mentioned cases settled for amounts well in
excess of nuisance value.” (Id. ¶ 34.) Additionally, Plaintiff
alleges, upon information and belief, that “the officers that
were the subject of these lawsuits were not disciplined by [the
City] for their actions.” (Id.)
Plaintiff alleges two other bases for the City's “notice of
allegations of excessive force.” (Id. ¶ 35.) Specifically,
Plaintiff alleges that the City “was also on notice of
allegations of excessive force by its officers through
public forums, including on February 11, 2008,” on which
date “the Newburgh City Council held a public comment
session, at which numerous residents testified regarding
the excessive and unnecessary use of police dogs during
arrests, as well as additional perceived problems within the
Police Department, including the lack of a civilian review
board.” (Id.) Additionally, Plaintiff alleges that “[o]n August
1, 2013, Matrix Consulting Group published their Final
Report entitled ‘An Assessment of the Culture, Community
Relations, Use of Force, Training, Disciplinary Practices
of the Police Department–City of Newburgh, New York,’
“ (the “Matrix Report”). (Id. ¶ 36.) According to Plaintiff,
the Matrix Report stated generally that “discipline guidelines
and decisions are unstructured,” noted that “assigning a
specific investigator and requiring a formal report” was not
“previously required,” and stated that “only 43% of sworn
officers who responded to the polling in the report agreed that
they received appropriate training to do their job well.” (Id.)
*4 Finally, Plaintiff makes a number of general allegations
regarding the City and Town. First, Plaintiff alleges that
the “City of Newburgh and Town of Newburgh have
been aware for years (from lawsuits, notices of claim and
complaints filed with the municipalities themselves and
their police departments) that many of their police officers
are insufficiently trained with respect to the laws and
regulations regarding use of force during an arrest.” (Id. ¶
40.) Plaintiff further alleges that the “municipalities are ...
aware that such improper training has often resulted in a
deprivation of civil rights,” and that despite having such
notice, “the municipalities have failed to take corrective
action,” which “caused the officers in the present case to
violate plaintiff's civil rights.” (Id.) Additionally, Plaintiff
alleges that the City and Town “have been on notice
that the defendant police officers lack the objectivity,
temperament, maturity, and discretion to be members of their
respective police departments,” and despite such notice, “the
municipalities have retained the individual defendants as
police officers.” (Id. ¶ 41.) Plaintiff also alleges that “upon
information and belief, in 2010, Defendants had a policy or
routine practice of using excessive force when effectuating
arrests,” and that upon information and belief, “it was the
policy and/or custom of defendant City of Newburgh to
inadequately train, supervise, discipline, and/or terminate
their officers, staff, agents and employees, thereby failing
to adequately discourage further constitutional violations on
the part of their officers, staff, agents and employees.” (Id.
at ¶¶ 42–43.) Furthermore, Plaintiff alleges that “as a result
of the above described policies and customs, the officers,
staff, agents and employees of defendant [City], believed that
their actions would not be properly monitored by supervisory
officers and that misconduct would not be investigated or
sanctioned, but would be tolerated.” (Id. at ¶ 44.) Plaintiff
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concludes that “the above described policies and customs
demonstrate a deliberate indifference on the part of the
policymakers of [the City] to the constitutional rights of
arrestees and were the cause of the violations of Plaintiff's
rights alleged herein.” (Id. ¶ 45.)
B. Procedural Background
Plaintiff filed suit against the City, the City Police Officer
Defendants, the Town, Defendant Ransom, and Defendant
Nales on June 14, 2013. (See Dkt. No. 2.) 3 On January 9,
2014, the Court held a pre-motion conference with all Parties.
(See Dkt. (minute Entry for Jan. 9, 2014).) Following that
conference, Plaintiff submitted a letter explaining the basis
for filing an amended complaint, and attaching his PAC. (See
Dkt. No. 20.) 4 Plaintiff never formally moved to file his PAC,
which contains all of the factual allegations in his Complaint,
as well as additional allegations.
3 In June 2014, the Court so ordered a stipulation
between Plaintiff and Defendant Nales to dismissal
of the claims against that Defendant. (See Dkt. No.
35.)
4 Plaintiff's PAC also is filed as an attachment to
Plaintiff's Memorandum of Law in Opposition, (see
Dkt. No. 46 Ex. A), and as an attachment to an
affidavit submitted by the City in connection with
its Memorandum of Law, (see Dkt. No. 26 Ex. A).
*5 On May 23, 2014, the City moved to dismiss the claims
against the City and the City Police Officer Defendants, and
to oppose the filing of Plaintiff's PAC as to the claims against
the City and the City Police Officer Defendants. (See Dkt.
No. 25.) Similarly, the Town moved to dismiss the claims
against the Town and Defendant Ransom, and to oppose the
filing of Plaintiff's PAC as to the claims against the Town and
Defendant Ransom. (See Dkt. No. 29.)
II. Discussion
A. 12(b)(5) Motion To Dismiss
The City of Newburgh moves to dismiss the claims against the
City Police Officer Defendants for failure to serve, pursuant
to Federal Rule of Civil Procedure 12(b)(5).
1. Standard of Review
“[A] federal court generally may not rule on the merits of
a case without first determining that it has jurisdiction over
the category of claim in suit (subject-matter jurisdiction)
and the parties (personal jurisdiction).” Sinochem Int'l. Co.
v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 430–31,
127 S.Ct. 1184, 167 L.Ed.2d 15 (2007). Valid service is a
prerequisite for a federal court to assert personal jurisdiction
over a claim. See Omni Capital Int'l, Ltd. v. Rudolf Wolff &
Co., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987).
“When a defendant moves to dismiss under Rule 12(b)(5),
the plaintiff bears the burden of proving adequate service.”
Dickerson v. Napolitano, 604 F.3d 732, 752 (2d Cir.2010)
(brackets and internal quotation marks omitted).
In deciding a Rule 12(b)(5) motion, the Court “must look
to matters outside the complaint to determine what steps, if
any, the plaintiff took to effect service.” C3 Media & Mktg.
Grp., L.L.C. v. Firstgate Internet, Inc., 419 F.Supp.2d 419,
427 (S.D.N.Y.2005) (internal quotation marks omitted); see
also PH Int'l Trading Corp. v. Nordstrom, Inc., No. 07–CV–
10680, 2009 WL 859084, at *3 (S.D.N.Y. Mar. 31, 2009) (“A
court may, on a Rule 12(b)(5) motion to dismiss, consider
affidavits and documents submitted by the parties without
converting the motion into one for summary judgment under
Rule 56.” (brackets and internal quotation marks omitted)).
For a plaintiff to satisfy his burden of proving adequate
service, see Mende v. Milestone Tech., Inc., 269 F.Supp.2d
246, 251 (S.D.N.Y.2003), “[c]onclusory statements that a
defendant was properly served are insufficient to overcome
a defendant's sworn affidavit that he was never served,”
Howard v. Klynveld Peat Marwick Goerdeler, 977 F.Supp.
654, 658 (S.D.N.Y.1997), aff'd, 173 F.3d 844 (2d Cir.1999).
Similarly, defective service is not cured or overcome “on the
mere assertion that a defendant had actual notice.” Weston
Funding, L.L.C. v. Consorcio G Grupo Dina, S.A. de C.V., 451
F.Supp.2d 585, 589 (S.D.N.Y.2006) (internal quotation marks
omitted).
2. Analysis
The Parties agree that service was attempted as follows.
“[A] summons addressed to each defendant was delivered
to the City Clerk's office, 83 Broadway, Newburgh, N.Y.
12550” in August 2013. (Pl.'s Mem. 9.) Plaintiff asserts that
this service was proper because 83 Broadway “is the usual
and typical place to serve Newburgh officers,” the process
server Michael Root of Majestic Process Service, Inc. went
to the police department at 55 Broadway, Newburgh, N.Y.
12550, and was told by a sergeant “that the place to serve
Newburgh officers was 83 Broadway,” and “Mr. Root asked
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Ms. [Autumn] Resto, a paralegal at Newburgh City Hall, if
she could accept service on behalf of the officer[s],” “she
checked with a supervisor, read the documents, and agreed to
accept service on behalf of the officers.” (Id. at 9–10; see also
id. Ex. C (Decl. of Michael Root) (“Root Decl.”) ¶¶ 1, 3–7.)
*6 In support of its Motion To Dismiss, the City submitted
an affidavit from Michelle Kelson, Corporation Counsel for
the City of Newburgh. (See Aff. of Michelle Kelson (April 24,
2014) (“April 24 Kelson Aff.”) ¶ 1 (Dkt. No. 27).) Ms. Kelson
avers that she was notified that the City Clerk's office had
received “several summons[es] and one copy of the verified
complaint” for this case, and that there was “one summons
for the City and one for each individual police officer.” (Id.
¶ 2.) Ms. Kelson appended the documentation that that City
Clerk's office received-seven summonses and one copy of the
verified complaint. (Id. at Ex. A.) The City also submitted an
affidavit from Ms. Resto, who averred:
My instructions from the Corporation
Counsel are to take whatever legal
papers are given to me. I do not
offer an opinion as to whether giving
me these papers is proper service. I
have no authority to accept service on
behalf of an individual employee of the
City of Newburgh. I have never been
appointed an agent to accept service on
behalf of any Newburgh employee.
(Aff. of Autumn Resto (“Resto Aff.”) ¶ 3 (Dkt. No. 49).) In
Reply, the City submitted a second affidavit from Ms. Kelson,
who averred:
Employees in my office, including Ms. Resto, have
standing instructions to take legal papers delivered to
this office. No one here, including myself, is authorized
to accept service on behalf of any employee of the
City of Newburgh. Pursuant to CPLR § 311(A) (3), the
Corporation Counsel's office is a designated agent for
receipt of process for the City but not its employees.
No employee of the Corporation Counsel's office has been
designated as an agent to receive[ ] process pursuant to
CPLR § 318.
The Corporation Counsel's office is on the second floor of
City Hall located at 83 Broadway, Newburgh, New York.
It is a separate building from the police station which is
located a few hundred yards away at 55 Broadway. No
police officers report to City Hall at the beginning or end
of their shifts or receive their work assignments here. All
police officers' place of business is the police department.
The individual defendants in this case are not stationed at
City Hall and, as to the performance of their job duties, City
Hall is just another location within the City to which they
are occasionally dispatched for official police business.
(Aff. of Michelle Kelson (June 17, 2014) (“June 17 Kelson
Aff.”) ¶¶ 2–4 (Dkt. No. 48).)
Under Federal Rule 4(e), Plaintiff could serve the City Police
Officer Defendants pursuant to state law, see Fed.R.Civ.P.
4(e)(1), or by delivering a copy of the summons and of the
Complaint to each individual personally, leaving a copy of
each at each individual's dwelling or usual place of abode
with someone of suitable age and discretion who resides
there, or by delivering a copy of each to an agent authorized
by appointment or law to receive service of process, See
Fed.R.Civ.P. 4(e)(2). The City argues, and Plaintiff does not
contest, that service was not properly effected pursuant to
Rule 4(e)(2). The summons and complaint were not delivered
to each person individually, nor were they delivered to each
individual's dwelling or usual place of abode. Finally, service
was not effected by delivering a copy of the summons and
complaint to an agent authorized by appointment or law to
receive service of process; the evidence shows that Ms. Resto
was not an agent authorized to receive service for the City
Police Officer Defendants, nor does Plaintiff even dispute that
fact. (Resto Aff. ¶ 3.)
*7 Thus, the question is whether the City Police Officer
Defendants were properly served under state law, as is
permissible under Federal Rule of Civil Procedure 4(e)(1).
Section 308 of the New York C.P.L.R. (“CPLR”) governs
personal service upon natural persons, and provides that
service may be effected
1. by delivering the summons within the state to the person
to be served; or
2. by delivering the summons within the state to a person of
suitable age and discretion at the actual place of business,
dwelling place or usual place of abode of the person to be
served and by either mailing the summons to the person to
be served at his or her last known residence or by mailing
the summons by first class mail to the person to be served
at his or her actual place of business in an envelope bearing
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the legend “personal and confidential” and not indicating
on the outside thereof, by return address or otherwise, that
the communication is from an attorney or concerns an
action against the person to be served, ... or
3. by delivering the summons within the state to the agent
for service of the person to be served as designated under
rule 318[.]
N.Y. C.P.L.R. § 308. Again, service was not effected by
personal delivery to the City Police Officer Defendants or
by delivery at their dwelling places or usual places of abode,
nor is there any evidence that Ms. Resto was an agent for
service designated under CPLR § 318. Thus, the question is
whether the City Police Officer Defendants were served by
delivery of the summonses to a person of suitable age and
discretion at their actual place of business and by mailing the
summonses to the individuals at their last known residences
or actual places of business. 5
5 The Court notes that Plaintiff only asserts that
service was proper pursuant to N.Y. C.P.L.R. §
308(2). (See Pl.'s Mem. 9–11 .)
Here, Plaintiff has failed to establish that the City Police
Officer Defendants were served at their “actual place of
business” pursuant to CPLR § 308(2). “A person's ‘actual
place of business' must be where the person is physically
present with regularity, and that person must be shown to
regularly transact business at that location.” Selmani v. City
of New York, 100 A.D.3d 861, 954 N.Y.S.2d 580, 581–82
(App.Div.2012); see also Sajimi v. City of New York, No. 07–
CV–3252, 2011 WL 135004, at *3 (E.D.N.Y. Jan. 13, 2011)
(“The term ‘actual place of business' has been defined as
a place where the defendant is regularly physically present
or regularly transacts business.”); Varela v. Flintlock Const.,
Inc., 148 F.Supp.2d 297, 301 (S.D.N.Y.2001) (“Actual place
of business is statutorily defined as any location that the
defendant, through regular solicitation or advertisement, has
held out as its place of business. For a location to be a
person's actual place of business for service pursuant to CPLR
§ 308(2), that person must be shown to regularly transact
business at that location.” (citation and internal quotation
marks omitted)). Plaintiff makes no such showing. Indeed,
the only evidence submitted on this issue is from Ms. Kelson,
who averred, “No police officers report to City Hall at
the beginning or end of their shifts or receive their work
assignments here. All police officers' place of business is
the police department. The individual defendants in this case
are not stationed at City Hall and, as to the performance of
their job duties, City Hall is just another location within the
City to which they are occasionally dispatched for official
police business.” (June 17 Kelson Aff. ¶ 4.) Plaintiff has failed
to meet his burden of proving that service was effected at
Defendants' place of business. See GMA Accessories, Inc.
v. Solnicki, No. 07–CV–3219, 2010 WL 3749213, at *4
(S.D.N.Y. Sept. 24, 2010) (noting that the plaintiff has the
burden of showing service was made at the defendant's place
of business and holding that the plaintiff failed to meet this
burden when it failed to submit any evidence). 6 Accordingly,
service was improper under New York law. See Davis v. City
of New York, No. 07–CV–1395, 2008 WL 2511734, at *3
(S.D.N.Y. June 19, 2008) (holding that an attempt to effect
service on individual police officers at the office of the city's
corporation counsel was invalid because the “police precinct
to which they report and where they conduct their business
is their actual place of business” and the plaintiff “made
no effort to serve the officers personally or at their actual
residences”); Moultry v. City of Poughkeepsie, 154 F.Supp.2d
809, 812 (S.D.N.Y.2001) (holding that service was improper
under New York law where the plaintiff tried to serve
police officer defendants at the city chamberlain's office, and
the defendants worked at police department headquarters,
reported to work at headquarters at the beginning and end
of each shift, and “[u]nless they [were] testifying in [c]ity
[c]ourt, the officers ha[d] no official police business in
[c]ity [h]all, and they [did] not work for or with the [c]ity
[c]hamberlain”). Furthermore, even if Mr. Root went to the
Police Department at 55 Broadway, was told by a sergeant to
go to the City Attorney at 83 Broadway, and was told by Ms.
Resto that she could accept service on behalf of the officers, as
Mr. Root declared, service was still improper. (See Root Decl.
¶¶ 3–7.) See Moultry, 154 F.Supp.2d at 811–12 (holding that
service on individual police officers at the city chamberlain's
office was improper even though a clerk for the chamberlain
accepted service on behalf of the individual police officers
and “told the process server that he had come to the right
place, and that she was empowered to accept personal service
for the individual police officers”). 7
6 Mr. Root's declaration that 83 Broadway is the
usual and typical place to serve all Newburgh
officers and employees, (Root Decl. ¶ 3), is the type
of “conclusory statement[ ]” that is insufficient to
carry the burden that service was adequate. Doe v.
Alsaud, 12 F.Supp.3d 684, 687–88 (S.D.N.Y.2014)
(internal quotation marks omitted).
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7 Under New York law, when serving a corporation,
a process server may rely on the representations
of employees of the corporation with respect to
who may accept service on the corporation's behalf.
See Melkaz Int'l Inc. v. Flavor Innovation Inc.,
167 F.R.D. 634, 642 n. 6 (E.D.N.Y.1996). Here,
however, Mr. Root was serving individuals and,
indeed, not even serving them at their place of
business.
*8 Additionally, when effecting service under state law,
a plaintiff must, at the very least, serve a summons and
notice. Specifically, “[i]f the complaint is not served with the
summons, the summons shall contain or have attached thereto
a notice stating the nature of the action and the relief sought,
and ... the sum of money for which judgment may be taken in
case of default.” N.Y. C.P.L.R. § 305(b). Here, Plaintiff served
a summons for the City and summonses for each of the six
individual City Police Officer Defendants, but only one copy
of the Complaint. (See April 24 Kelson Aff. Ex. A.) None
of the summonses contained any notice of the claims. (Id.)
Thus, at least five of the summonses served on the City Police
Officer Defendants did not have attached or contain either a
copy of the Complaint or notice of the claims, and therefore
were invalid under New York law.
Next, Plaintiff argues that, if the Court found service to
be improper, it “should be cognizant of the fact that, at
the time of the filing of this case, Plaintiff was pro se”
and therefore should be granted special leniency regarding
procedural matters. (Pl.'s Mem. 11.) However, Plaintiff was
pro se for only a very short portion of this case. Plaintiff
filed his Complaint pro se on June 14, 2013. (Dkt. No.
2.) On August 21, 2013, Roberta D. Asher 8 entered a
notice of appearance on behalf of Plaintiff. (Dkt. No. 4.) 9
Thus, when service was attempted on August 29, 2013,
Plaintiff was represented by counsel. (Pl.'s Mem. Ex. D.)
Therefore, the Court sees no reason to extend special
solicitude to Plaintiff regarding his inadequate service on
the basis of his temporarily pro se status. Cf. Marchand v.
Simonson, 16 F.Supp.3d 97, 106–07 (D.Conn.2014) (noting
that the court would “take[ ] into consideration [the]
plaintiff's pro se status at the time he filed his amended
complaint,” but that because the plaintiff was represented at
the time he filed opposition to a motion, the court “need
not apply the liberal pro se construction in considering
[the] plaintiff's opposition” (italics omitted)); Neely v. RMS
Residential Mortg. Solution, L.L.C., No. 12–CV–1523, 2013
WL 752636, at *12 (E.D.N.Y. Feb. 26, 2013) (“Although the
[c]ourt liberally construed [the][p]laintiff's pro se [o]riginal
[c]omplaint, since [the] [p]laintiff is now represented by
counsel, the [c]ourt has no obligation to construe the
[p]roposed [a]mended [c]omplaint liberally[.]” (brackets,
italics, and internal quotation marks omitted)); Eaves v.
Strayhorn, No. 09–CV–394, 2010 WL 2521449, at *9
(S.D.Ohio June 15, 2010) (“[The] [p]laintiff cannot use the
initial pro se filing to obscure the fact that he, with counsel,
allowed the statute of limitations to run before re-filing his
complaint.” (italics omitted)); Khan v. Abercrombie & Fitch,
Inc., No. 01–CV–6163, 2003 WL 22149527, at *10 (S.D.N.Y.
Sept. 17, 2003) (refusing to allow a plaintiff to amend her
complaint at a late stage of litigation despite her argument
she should be afforded deference based on her pro se status,
where she was pro se when the case was filed but “has
been represented by counsel since the earliest stages of [the]
action”).
8 The Clerk of the Court is respectfully requested
to change the name of the attorney appearing for
Plaintiff from Stacy Nicole Baden to Roberta D.
Asher, as indicated on the notice of appearance.
(See Dkt. No. 4.)
9 Plaintiff's second counsel, David A. Zelman,
entered a notice of appearance on Plaintiff's behalf
on December 19, 2013. (Dkt. No. 18.)
*9 Prior to 1993, “the former Rule 4(j) ... provided that
if service was not made within 120 days, and the serving
party cannot show good cause why such service was not
made within that period, the action shall be dismissed
as to that defendant without prejudice .” Zapata v. City
of New York, 502 F.3d 192, 195 (2d Cir.2007) (internal
quotation marks omitted). Following the 1993 amendments,
the relevant rule, now codified in Rule 4(m), states, “If a
defendant is not served within 120 days after the complaint is
filed, the court ... must dismiss the action without prejudice
against that defendant or order that service be made within
a specified time. But if the plaintiff shows good cause
for the failure, the court must extend the time for service
for an appropriate period.” Fed.R.Civ.P. 4(m). Thus, the
amendment provided “district courts [with] discretion to grant
extensions even in the absence of good cause.” Zapata, 502
F.3d at 196; see also Henderson v. United States, 517 U.S.
654, 662, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996) (“[I]n
1993 amendments to the Rules, courts have been accorded
discretion to enlarge the 120–day period even if there is no
good cause shown.” (internal quotation marks omitted)).
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Here, Plaintiff has not shown good cause—or indeed even
tried to argue that good cause existed, instead merely arguing
that service was proper and that Plaintiff should get solicitude
as he previously was pro se. (Pl.'s Mem. 9–11.) “Good cause
is deemed to exist in exceptional circumstances where the
plaintiff's failure to serve process in a timely manner was
the result of circumstances beyond its control.” Ligon v. City
of New York, No. 12–CV–2274, 2013 WL 3502127, at *1
(S.D.N.Y. July 12, 2013) (internal quotation marks omitted).
“[A]ttorney inadvertence or negligence does not establish
good cause,” nor does “ignorance of the law.” Novak v. Nat'
l Broad. Co. Inc., 131 F.R.D. 44, 45–46 (S.D.N.Y.1990).
“Additionally, a mistaken belief that service was proper does
not establish good cause.” Bernstein v. Vill. of Piermont, No.
11–CV–3677, 2012 WL 6625231, at *3 (S.D.N.Y. Dec. 20,
2012) (internal quotation marks omitted). The Court sees
no basis for making a finding that there was good cause
for Plaintiff's failure to timely serve the City Police Officer
Defendants.
Thus, the only remaining question is whether, in the absence
of good cause, the Court should exercise its discretion to grant
an extension. Importantly, if the Court were to dismiss the
claims against the City Police Officer Defendants, Plaintiff
would not be able to bring the claims again because they
would be time-barred. Because Section 1983 “does not
provide a specific statute of limitations,” “courts apply the
statute of limitations for personal injury actions under state
law.” Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir.2013).
“Section 1983 actions filed in New York are therefore subject
to a three-year statute of limitations.” Id. The events giving
rise to this suit occurred on June 17, 2010. (Compl. ¶ 10 (Dkt.
No. 2); PAC ¶ 10.) Thus, the statute of limitations expired
on June 17, 2013, three days after this suit was filed. (See
Dkt. No. 2.) “Where, as here, good cause is lacking, but the
dismissal without prejudice in combination with the statute
of limitations would result in a dismissal with prejudice,”
there must be “sufficient indications on the record that the
district court weighed the impact that a dismissal or extension
would have on the parties.” Zapata, 502 F.3d at 197 (footnote
omitted).
*10 When courts are deciding whether to exercise their
discretion to extend the service deadline in the absence of
good cause, they are to consider the following factors: “(1)
whether the applicable statute of limitations would bar the
refiled action; (2) whether the defendant had actual notice
of the claims asserted in the complaint; (3) whether the
defendant had attempted to conceal the defect in service;
and (4) whether the defendant would be prejudiced by the
granting of plaintiff's request for relief from the provision.”
E. Refractories Co. v. Forty Eight Insulations, Inc., 187
F.R.D. 503, 506 (S.D.N.Y.1999). Regarding the first factor, as
explained above, the applicable statute of limitations would
bar the refiled action, so Plaintiff would be prejudiced if
the Court declined to grant an extension. Though this factor
weighs in favor of an extension, it “does not guarantee an
extension for every case that may be time-barred if refiled.”
Bunim v. City of New York, No. 05–CV–1562 et al., 2006 WL
2056386, at *3 (S.D.N.Y. July 21, 2006) (internal quotation
marks omitted). Therefore, the Court must consider the other
factors. There are no indications that the City Police Officer
Defendants have actual notice of the claims asserted or that
they attempted to conceal the defect in service. However,
there are also no allegations that these Defendants would be
prejudiced if the Court granted an extension. See Alvarado v.
Am. Freightways, Inc., No. 04–CV–9536, 2005 WL 1467893,
at *6 (S.D.N.Y. June 21, 2005) (holding that allowing service
after the statute of limitations has expired does not, by itself,
constitute prejudice). Here, because Plaintiff “would be time-
barred from refilling and the defendants allege no prejudice if
Rule 4(m) relief is granted, the balance of equities tips in favor
of [Plaintiff].” Id.; see also Gore v. RBA Grp., Inc., No. 03–
CV–9442, 2009 WL 884565, at *7 (S.D.N.Y. Mar. 27, 2009)
(“Since the statute of limitations would bar the plaintiff from
re-filing his suit against [the defendant] and nothing in the
record indicates that an extension of the time for service will
prejudice the defendant, the balance of equities tips in favor
of the plaintiff.”). “Granting ... [P]laintiff[ ] a discretionary
extension also furthers the principle that litigation should
generally be resolved on the merits.” Alvarado, 2005 WL
1467893, at *6. Therefore, the Court will grant Plaintiff 21
days from the date of this Opinion to properly serve the City
Police Officer Defendants, or else face dismissal of his claims
against these Defendants. However, no further extensions will
be given, in the absence of good cause.
B. 12(b)(6) Motion To Dismiss and Opposition to PAC
Next, the City and Town move under Rule 12(b)(6) to dismiss
the Complaint for failure to state a claim under Monell v. Dep'
t of Soc. Servs. of City of N.Y., 436 U.S. 658, 98 S.Ct. 2018,
56 L.Ed.2d 611 (1978), and the Town moves to dismiss the
claims against the Town Police Officer Ransom. Additionally,
the Defendants move that the Court deny Plaintiff's request to
file his PAC.
1. Standard of Review
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*11 Federal Rule of Civil Procedure 15 supplies the legal
standard applicable to a motion to amend a complaint. Rule
15(a)(2) provides that leave to amend a complaint shall be
“freely” given when “justice so requires.” Fed.R.Civ.P. 15(a)
(2). However, “ ‘[i]t is within the sound discretion of the
district court to grant or deny leave to amend.’ “ Barbata
v. Latamie, No. 11–CV–7381, 2012 WL 1986981, at *2
(S.D.N.Y. June 4, 2012) (quoting Green v. Mattingly, 585
F.3d 97, 104 (2d Cir.2009)). “A district court has discretion
to deny leave for good reason, including futility, bad faith,
undue delay, or undue prejudice to the opposing party.”
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200
(2d Cir.2007) (citing Foman v. Davis, 371 U.S. 178, 182,
83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). However, “[o]utright
refusal to grant the leave without any justifying reason for
the denial is an abuse of discretion.” Jin v. Metro. Life Ins.
Co., 310 F.3d 84, 101 (2d Cir.2002). “When the plaintiff
has submitted a proposed amended complaint, the district
judge may review that pleading for adequacy and need not
allow its filing if it does not state a claim upon which relief
can be granted.” Ricciuti v. N.Y.C. Transit Auth., 941 F.2d
119, 123 (2d Cir.1991); see also Alaska Laborers Emp'rs
Ret. Fund v. Scholastic Corp., No. 07–CV–7402, 2011 WL
3427208, at *2 (S.D.N.Y. Aug.3, 2011) (“[A] court should
not grant a plaintiff the right to amend [a complaint] when
such amendment ... could not withstand a motion to dismiss
pursuant to Rule 12(b)(6).” (citations and internal quotation
marks omitted)). The adequacy of the proposed amended
complaint is judged by the same standard as that applied to a
motion to dismiss for failure to state a claim under Rule 12(b)
(6) of the Federal Rules of Civil Procedure. See id.; see also
Gen. Elec. Capital Fin., Inc. v. Bank Leumi Trust Co. of N.Y.,
No. 95–CV–9224, 1999 WL 33029, at *5 (S.D.N.Y. Jan.21,
1999).
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’ “ Ashcroft v. Iqbal, 556 U.S.
662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007)). The Supreme Court has held that
“[w]hile a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a plaintiff's
obligation to provide the ‘grounds' of his ‘entitle[ment] to
relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555 (second alteration
in original) (citations omitted). Instead, the Supreme Court
has emphasized that “[f]actual allegations must be enough to
raise a right to relief above the speculative level,” id., and that
“once a claim has been stated adequately, it may be supported
by showing any set of facts consistent with the allegations in
the complaint,” id. at 563. Plaintiffs must allege “only enough
facts to state a claim to relief that is plausible on its face.” Id. at
570. But if a plaintiff has “not nudged [his] claims across the
line from conceivable to plausible, the [ ] complaint must be
dismissed.” Id.; see also Iqbal, 556 U.S. at 679 (“Determining
whether a complaint states a plausible claim for relief will ...
be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense. But where
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged—but it has not ‘show[n]’—‘that the pleader is entitled
to relief.’ “ (alteration in original) (citation omitted) (quoting
Fed.R.Civ.P. 8(a)(2))).
*12 “[W]hen ruling on a defendant's motion to dismiss,
a judge must accept as true all of the factual allegations
contained in the complaint.” Erickson v. Pardus, 551 U.S.
89, 93–94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); see
also Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir.2013)
(“In addressing the sufficiency of a complaint we accept as
true all factual allegations and draw from them all reasonable
inferences .”); Aegis Ins. Servs., Inc. v. 7 World Trade Co.,
L.P., 737 F.3d 166, 176 (2d Cir.2013) (“In reviewing a
dismissal pursuant to Rule 12(b)(6), we ... accept all factual
allegations in the complaint as true ....“ (alterations and
internal quotation marks omitted)). Further, “[f]or the purpose
of resolving [a] motion to dismiss, the Court ... draw[s]
all reasonable inferences in favor of the plaintiff.” Daniel
v. T & M Prot. Res ., Inc., 992 F.Supp.2d 302, 304 n. 1
(S.D.N.Y.2014) (citing Koch v. Christie's Int'l PLC, 699 F.3d
141, 145 (2d Cir.2012)). However, “the tenet that a court must
accept as true all of the allegations contained in a complaint
is inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678. Therefore,
“a court considering a motion to dismiss can choose to begin
by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Id.
at 679.
Moreover, “[i]n adjudicating a Rule 12(b)(6) motion, a district
court must confine its consideration to facts stated on the face
of the complaint, in documents appended to the complaint
or incorporated in the complaint by reference, and to matters
of which judicial notice may be taken.” Leonard F. v. Isr.
Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999) (internal
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quotation marks omitted); see also ATSI Commc'ns, Inc. v.
Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007) (noting that
the court “may consider any written instrument attached to
the complaint, statements or documents incorporated into the
complaint by reference, legally required public disclosure
documents filed with the SEC, and documents possessed by
or known to the plaintiff and upon which it relied in bringing
the suit” (citation omitted)).
2. Analysis
a. Section 1983 Claims Against the City and Town
Plaintiff brings claims under 42 U.S.C. § 1983 against the
City and Town. “To state a claim under [§ 1983], the plaintiff
must show that a defendant, acting under color of state law,
deprived him of a federal constitutional or statutory right.”
Sykes v. Bank of Am., 723 F.3d 399, 405–06 (2d Cir.2013).
“Congress did not intend municipalities to be held liable
[under § 1983] unless action pursuant to official municipal
policy of some nature caused a constitutional tort.” Monell,
436 U.S. at 691. Thus, “to prevail on a claim against a
municipality under section 1983 based on acts of a public
official, a plaintiff is required to prove: (1) actions taken
under color of law; (2) deprivation of a constitutional or
statutory right; (3) causation; (4) damages; and (5) that an
official policy of the municipality caused the constitutional
injury.” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d
Cir.2008); cf. Salvatierra v. Connolly, No. 09–CV–3722, 2010
WL 5480756, at *10 (S.D.N.Y. Sept. 1, 2010) (dismissing
a claim against agencies where the plaintiff did not allege
that any policy or custom caused the deprivation of his
rights), adopted by 2011 WL 9398 (S.D.N.Y. Apr.16, 2010);
Arnold v. Westchester County, No. 09–CV–3727, 2010 WL
3397375, at *9 (S.D.N.Y. Apr.16, 2010) (dismissing a claim
against the county because the complaint “[did] not allege the
existence of an unconstitutional custom or policy”), adopted
sub nom. Arnold v. Westchester Cnty. Dep't of Corr., 2010
WL 3397372 (S.D.N.Y. Aug.15, 2010). The fifth element
reflects the notion that “a municipality may not be held
liable under § 1983 solely because it employs a tortfeasor.”
Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S.
397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); see
also Newton v. City of New York, 566 F.Supp.2d 256, 270
(S.D.N.Y.2008) (“As subsequently reaffirmed and explained
by the Supreme Court, municipalities may only be held
liable when the municipality itself deprives an individual
of a constitutional right.”). In other words, a municipality
may not be liable under Section 1983 “by application of
the doctrine of respondeat superior.” Pembaur v. City of
Cincinnati, 475 U.S. 469, 478, 106 S.Ct. 1292, 89 L.Ed.2d
452 (1986) (italics omitted); see also Vassallo v. Lando, 591
F.Supp.2d 172, 201 (E.D.N.Y.2008) (noting that “a municipal
entity may only be held liable where the entity itself commits
a wrong”). Instead, there must be a “direct causal link between
a municipal policy or custom and the alleged constitutional
deprivation.” City of Canton v. Harris, 489 U.S. 378, 385,
109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); see also City of
St. Louis v. Praprotnik, 485 U.S. 112, 122, 108 S.Ct. 915,
99 L.Ed.2d 107 (1988) (“[G]overnments should be held
responsible when, and only when, their official policies cause
their employees to violate another person's constitutional
rights.”). “In determining municipal liability, it is necessary to
conduct a separate inquiry into whether there exists a ‘policy’
or ‘custom.’ “ Davis v. City of New York, 228 F.Supp.2d 327,
336 (S.D.N.Y.2002), aff'd, 75 F. App'x 827 (2d Cir.2003).
Normally, “a custom or policy cannot be shown by pointing
to a single instance of unconstitutional conduct by a mere
employee of the [municipality].” Newton, 566 F.Supp.2d at
271; see also City of Okla. v. Tuttle, 471 U.S. 808, 823–24,
105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) (plurality opinion)
(“Proof of a single incident of unconstitutional activity is
not sufficient to impose liability under Monell, unless proof
of the incident includes proof that it was caused by an
existing, unconstitutional municipal policy, which policy can
be attributed to a municipal policymaker.”); Brogdon v. City
of New Rochelle, 200 F.Supp.2d 411, 427 (S.D.N.Y.2002) (“A
single incident by itself is generally insufficient to establish
the affirmative link between the municipal policy or custom
and the alleged unconstitutional violation.”).
*13 A plaintiff may satisfy the “policy or custom”
requirement by alleging one of the following: “(1) a formal
policy officially endorsed by the municipality; (2) actions
taken by government officials responsible for establishing
the municipal policies that caused the particular deprivation
in question; (3) a practice so consistent and widespread
that, although not expressly authorized, constitutes a custom
or usage of which a supervising policy-maker must have
been aware; or (4) a failure by policymakers to provide
adequate training or supervision to subordinates to such
an extent that it amounts to deliberate indifference to the
rights of those who come into contact with the municipal
employees.” Brandon v. City of New York, 705 F.Supp.2d
261, 276–77 (S.D.N.Y.2010) (citations omitted); see also
Roe, 542 F.3d at 36 (describing the second category for
establishing Monell liability); Patterson v. County of Oneida,
375 F.3d 206, 226–27 (2d Cir.2004) (describing methods
of establishing Monell liability). Moreover, a plaintiff also
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must establish a causal link between the municipality's policy,
custom, or practice and the alleged constitutional injury. See
Tuttle, 471 U.S. at 824 n. 8 (“The fact that a municipal
‘policy’ might lead to ‘police misconduct’ is hardly sufficient
to satisfy Monell's requirement that the particular policy
be the ‘moving force’ behind a constitutional violation.
There must at least be an affirmative link between[, for
example,] the training inadequacies alleged, and the particular
constitutional violation at issue.” (emphasis in original)); Roe,
542 F.3d at 37 (holding that “a plaintiff must demonstrate
that, through its deliberate conduct, the municipality was
the ‘moving force’ behind the alleged injury.” (quoting
Brown, 520 U.S. at 404)); Batista v. Rodriguez, 702 F.2d
393, 397 (2d Cir.1983) (“Absent a showing of a causal
link between an official policy or custom and the plaintiffs'
injury, Monell prohibits a finding of liability against the
[c]ity.”); Johnson v. City of New York, No. 06–CV–9426,
2011 WL 666161, at *3 (S.D.N.Y. Feb. 15, 2011) (noting
that after demonstrating the existence of a municipal policy
or custom, “a plaintiff must establish a causal connection-an
affirmative link-between the policy and the deprivation of his
constitutional rights” (internal quotation marks omitted)).
At this stage, of course, Plaintiff need not prove these
elements, but still must plead them sufficiently to make out
a plausible claim for relief. Although there is no heightened
pleading requirement for complaints alleging municipal
liability under § 1983, see Leatherman v. Tarrant Cnty.
Narcotics Intelligence & Coordination Unit, 507 U.S. 163,
168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), a complaint
does not “suffice if it tenders naked assertion [s] devoid
of further factual enhancement,” Iqbal, 556 U.S. at 678
(alteration in original) (internal quotation marks omitted).
Thus, to survive a motion to dismiss, Plaintiff cannot, through
conclusory allegations, merely assert the existence of a
municipal policy or custom, but “must allege facts tending
to support, at least circumstantially, an inference that such a
municipal policy or custom exists.” Santos v. New York City,
847 F.Supp.2d 573, 576 (S.D.N.Y.2012) (citing Dwares v.
City of New York, 985 F.2d 94, 100 (2d Cir.1993)). Put another
way, mere allegations of a municipal custom, a practice of
tolerating official misconduct, or inadequate training and/or
supervision are insufficient to demonstrate the existence of
such a custom unless supported by factual details.
*14 Of the four categories among which a Monell plaintiff
must establish, Plaintiff's allegations do not include the first
two. Plaintiff does not allege that there was a formal policy
calling for the use of excessive force, nor does he allege any
actions by government officials who were responsible for any
offending policies. Rather, Plaintiff's allegations implicate the
third and fourth categories-a consistent practice of use of
excessive force, that supervisors were aware of and tolerated
the use of excessive force, a failure to train officers in the use
of force, and/or a failure to supervise officers with regard to
their use of force when arresting suspects.
Plaintiff makes a number of general allegations against both
the City and Town in his PAC. Plaintiff alleges that the
event in question “was not an isolated incident,” and, in
fact, that the City and Town “have been aware for years
(from lawsuits, notices of claim and complaints filed with
the municipalities themselves and their police departments)
that many of their police officers are insufficiently trained
with respect to the laws and regulations regarding use
of force during an arrest.” (PAC ¶ 40.) Plaintiff further
alleges that the municipalities are “aware that such improper
training has often resulted in a deprivation of civil rights,”
and that “[d]espite such notice, the municipalities have
failed to take corrective action.” (Id.) Additionally, Plaintiff
alleges that the City and Town “are also liable because
they have been on notice that the defendant police officers
lack the objectivity, temperament, maturity, and discretion
to be members of their respective police departments,” and
retaining the police officers amounts to “gross negligence and
deliberate indifference.” (Id. ¶ 41.) Plaintiff further alleges
that “upon information and belief, in 2010, Defendants had
a policy or routine practice of using excessive force when
effectuating arrests.” (Id. ¶ 42.)
Plaintiff's PAC also contains allegations specifically against
the City, apart from the allegations generally against the
City and Town. First, Plaintiff alleges that the City “has a
policy or practice of using excessive force when effectuating
arrests, and fails to train and/or discipline its employees to
prevent violations of arrestee's [sic] constitutional rights.” (Id.
¶ 22.) Plaintiff also alleges that “upon information and
belief, it was the policy and/or custom of [D]efendant City
of Newburgh to inadequately train, supervise, discipline,
and/or terminate their officers, staff, agents and employees,
thereby failing to adequately discourage further constitutional
violations on the part of their officers, staff, agents and
employees.” (Id. ¶ 43.) Plaintiff alleges that “as a result
of the above described policies and customs, the officers,
staff, agents and employees of [the City] believed that their
actions would not be properly monitored by supervisory
officers and that misconduct would not be investigated or
sanctioned, but would be tolerated,” and that these customs
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and policies “demonstrate a deliberate indifference on the part
of the policymakers of Defendant City of Newburgh to the
constitutional rights of the arrestees and were the cause of
the violations of Plaintiff's rights alleged herein.” (Id. ¶¶ 44–
45.) By themselves, these general allegations are “conclusory,
and therefore must be disregarded.” Simms v. City of New
York, No. 10–CV–3420, 2011 WL 4543051, at *3 (E.D.N.Y.
Sept.28, 2011) (dismissing conclusory allegations that did
not provide any facts that would allow the court to infer
what city policies or practices led to the alleged deficiency)
(citing Iqbal, 556 U.S. at 678–79), aff'd, 480 F. App'x.
627 (2d Cir.2012); see also Triano v. Town of Harrison,
895 F.Supp.2d 526, 535–37 (S.D.N.Y.2012) (holding that
“mere allegations of a municipal custom or practice of
tolerating official misconduct are insufficient to demonstrate
the existence of such a custom unless supported by factual
details” and collecting cases); Duncan v. City of New York,
No. 11–CV–3826, 2012 WL 1672929, at *3 (E.D.N.Y. May
14, 2012) (holding that “boilerplate statements” claiming that
New York City had a custom of making and tolerating false
arrests and of using excessive force “[were] insufficient to
state a claim of municipal liability under Monell ”); Moore v.
City of New York, No. 08–CV–8879, 2010 WL 742981, at *6
(S.D.N.Y. Mar.2, 2010) (“Allegations that a defendant acted
pursuant to a policy or custom without any facts suggesting
the policy's existence, are plainly insufficient.” (internal
quotation marks omitted)); Bradley v. City of New York, No.
08–CV–1106, 2009 WL 1703237, at *3 (E.D.N.Y. June 18,
2009) (“The [c]omplaint's conclusory, boilerplate language-
that the [c]ity ‘fail[ed] to adequately train, discipline, and
supervise’ employees and ‘fail[e]d to promulgate and put
into effect appropriate rules and regulations applicable to
the duties and behavior’ of its employees-is insufficient to
raise an inference of the existence of a custom or policy, let
alone that such a policy caused [the][p]laintiffs to be arrested
without probable cause.” (citation omitted)).
*15 The only remaining allegation against the Town is that
it “was a municipal corporation,” and “was the employer
and supervisor” of Defendant Ransom. (PAC ¶ 8.) Therefore,
Plaintiff alleges, the Town “was responsible for [Defendant
Ransom's] training, supervision and conduct,” as well as
“for enforcing the regulations of the Town of Newburgh
Police Department and for ensuring that Town of Newburgh
police personnel obey the laws of the State of New York
and of the United States.” (Id.) This allegation would only
support a claim for vicarious liability, and does not state
a claim for municipal liability under Monell. See City of
Canton, 489 U.S. at 385 (“Respondeat superior or vicarious
liability will not attach under § 1983.” (italics omitted));
Hughes v. Salerno, No. 11–CV–9094, 2012 WL 6097775, at
*4 (S.D.N.Y. Dec.5, 2012) (“Monell does not provide a cause
of action for vicarious liability.”). Therefore, Plaintiff's claim
for municipal liability against the Town is dismissed and the
Court denies Plaintiff's request to file his PAC with regard to
this claim . 10
10 In its Memorandum of Law in Support of
its Motion To Dismiss, the Town argued that
the Complaint and PAC “are devoid of factual
allegations supporting the inference that the
alleged policies actually exist.” (Town's Mem. 6.)
Though Plaintiff responded to the City's arguments
regarding his Monell claims, he did not respond to
the Town's arguments regarding municipal liability.
(See generally Pl.'s Mem.) The Town argues in
reply that “Plaintiff's failure to raise any argument
in opposition to the Town's motion constitutes an
abandonment of the claim, and as such, the claims
against the Town must be dismissed.” (Town of
Newburgh and Sergeant William Ransom's Reply
Br. in Further Supp. of their Mot. To Dismiss
(“Town's Reply”) 3 (Dkt. No. 50) (citing Hanig
v. Yorktown Cent. Sch. Dist., 384 F.Supp.2d 710,
724 (S.D.N.Y.2005)).) Though the Court dismisses
Plaintiff's Monell claims against the Town on
the merits, it alternatively holds that Plaintiff
has abandoned this claim, as Plaintiff offered no
response to the Town's arguments in support of its
Motion To Dismiss the Monell claim. See Baity v.
Kralik, ––– F.Supp.3d ––––, 2014 WL 5010513,
at *16 (S.D.N.Y. Sept.30, 2014) (holding that the
court “could find [the][p]laintiff to have abandoned
any claim that Monell liability applies” when the
plaintiff's memorandum in opposition made no
mention of the defendant's arguments on that issue,
and collecting cases); Chamberlain v. City of White
Plains, 986 F.Supp.2d 363, 392 (S.D.N.Y.2013)
(holding, in the context of a § 1983 Monell claim,
that “[a] court may, and generally will, deem a
claim abandoned when a plaintiff fails to respond
to a defendant's arguments that the claim should be
dismissed”).
Plaintiff does offer more specific allegations in support of his
two theories of Monell liability against the City. For example,
Plaintiff alleges that the City “has an extensive history of
lawsuits and other complaints alleging the use of excessive
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force by its employees.” (PAC ¶ 23.) As noted, Plaintiff
specifically identifies nine lawsuits he represents were filed
in the five years before the incident in question, at least five
of which “involved allegations of unnecessary and excessive
dog bites.” (Id.; see also id. ¶¶ 24–32.) Plaintiff alleges
that the “City of Newburgh routinely reached settlement
agreements with the plaintiffs in the above-mentioned cases,”
and further alleges that “upon information and belief, most, if
not all, of the above-mentioned cases settled for amounts well
in excess of nuisance value.” (Id . ¶¶ 33–34.) Plaintiff also
alleges “[u]pon information and believe,” that “the officers
that were the subject of these lawsuits were not disciplined by
[the City] for their actions.” (Id. ¶ 34.)
Additionally, Plaintiff alleges that the City of Newburgh “was
also on notice of allegations of excessive force by its officers
through public forums, including on February 11, 2008,”
when “the Newburgh City Council held a public comment
session, at which numerous residents testified regarding
the excessive and unnecessary use of police dogs during
arrests, as well as additional perceived problems within the
Police Department, including the lack of a civilian review
board.” (Id. ¶ 35.)
Finally, Plaintiff alleges that Matrix Consulting Group
published its final report, titled “An Assessment of the
Culture, Community Relations, Use of Force, Training,
Disciplinary Practices of the Police Department–City of
Newburgh, New York,” on August 1, 2013. (Id. ¶ 36.)
According to Plaintiff,
*16 Among the many findings and
recommendations in the report is that
discipline guidelines and decisions
are unstructured-the report therefore
recommended, inter alia, that the
Chief should direct improvements to
the Internal Affairs process, including
assigning a specific investigator and
requiring a formal report, which was
not previously required. In addition,
only 43% of sworn officers who
responded to the polling in the
report agreed that they received
appropriate training to do their job
well. This report's findings support
the proposition that [the City's]
training and discipline procedures are
inadequate to prevent violations of
arrestees['] constitutional rights.
(Id.)
These allegations fail to plausibly state that there is a City
practice of using excessive force during arrests, generally,
or using police dogs so consistent and widespread as to
constitute a custom or usage. Under the third category of
Monell claims, “an act performed pursuant to a ‘custom’
that has not been formally approved by an appropriate
decisionmaker may fairly subject a municipality to liability
on the theory that the relevant practice is so widespread as
to have the force of law,” Brown, 520 U.S. at 404, which is
to say, that it is a “longstanding practice or custom which
constitutes the ‘standard operating procedure’ of the local
government entity,” Jett v. Dallas Indep. Sch. Dist., 491
U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989);
see also Kern v. City of Rochester, 93 F.3d 38, 44 (2d
Cir.1996) (noting that a municipality's custom “need not
be memorialized in a specific rule or regulation”); Jeffes
v. Barnes, 208 F.3d 49, 61 (2d Cir.2000) (discussing Jett
). Therefore, a plaintiff may establish municipal liability
by demonstrating that a municipality “indirectly caused
the misconduct of a subordinate municipal employee by
acquiescing in a longstanding practice or custom which may
fairly be said to represent official policy.” Miller v. County of
Nassau, 467 F.Supp.2d 308, 314 (E.D.N.Y.2006). To prevail
on this theory of municipal liability, however, a plaintiff
must prove that the custom at issue is permanent and well-
settled. See Praprotnik, 485 U.S. at 127 (noting that the
Supreme Court “has long recognized that a plaintiff may be
able to prove the existence of a widespread practice that,
although not authorized by written law or express municipal
policy, is ‘so permanent and well settled as to constitute a
custom or usage with the force of law’ “ (quoting Adickes
v. S.H. Kress & Co., 398 U.S. 144, 167–68, 90 S.Ct. 1598,
26 L.Ed.2d 142 (1970) (internal quotation marks omitted)));
Davis 228 F.Supp.2d at 346 (explaining that “[w]idespread
means that [the unconstitutional acts in question] are common
or prevalent throughout the [government body]; well-settled
means that the [unconstitutional acts in question] have
achieved permanent, or close to permanent, status.”). As the
Supreme Court emphasized in Monell, Congress enacted §
1983 to impose liability on municipalities “because of the
persistent and widespread discriminatory practices of state
officials,” and out of recognition that such practices could
become “so permanent and well settled as to constitute a
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‘custom or usage’ with the force of law.” Monell, 436 U.S. at
691 (citation and internal quotation marks omitted).
*17 The lawsuits cited by Plaintiff in the PAC, even when
combined with the allegations regarding the public forum
comments and the Matrix Report, are insufficient to plausibly
support an inference of a widespread custom. To begin, even
if the civil complaints involved comparable conduct to that
alleged here, “none result[ed] in an adjudication of liability.”
Walker v. City of New York, No. 12–CV–5902, 2014 WL
1259618, at *3 (S.D.N.Y. Mar.18, 2014); see also Collins v.
City of New York, 923 F.Supp.2d 462, 479 (E.D.N.Y.2013)
(holding that a “litany of other police-misconduct cases”
discussed in the plaintiff's complaint “[were] insufficient
to make a plausible case for Monell liability,” because
they either were different from the misconduct alleged in
the complaint, post-dated the alleged misconduct in the
case at hand, or “involve[d] something less (settlements
without admissions of liability and unproven allegations)
than evidence of misconduct”); accord Strauss v. City of
Chicago, 760 F.2d 765, 768–69 (7th Cir.1985) (holding,
even pre-Twombly and Iqbal, that allegations of complaints
about similar conduct were insufficient to state a claim for
a widespread custom under Monell because “the number
of complaints filed, without more, indicates nothing,” as
“[p]eople may file a complaint for many reasons, or for no
reason at all,” and “[t]hat they filed complaints does not
indicate that the policies that [the plaintiff] alleges exist do
in fact exist”); Rikas v. Babusch, No. 13–CV–2069, 2014
WL 960788, at *3 (N.D.Ill. Mar.12, 2014) (“[T]he fact that
prior lawsuits were filed against [one of the defendants
accused of excessive force] does not support [the plaintiff's]
Monell claim nor does it evidence a widespread municipal
practice.”); Xian Ming Wu v. City of New Bedford, No.
12–CV–11648, 2013 WL 4858473, at *2 (D.Mass. Sept.11,
2013) (holding that a complaint's reference to two other
similar complaints is insufficient to survive a motion to
dismiss). And though numerous cases, discussed below, look
to unsubstantiated allegations in lawsuits and complaints by
residents to establish municipal liability, these cases do so
through the framework of deliberate indifference failure-to-
train and failure-to-supervise cases and their reasoning is
therefore not persuasive here. See e .g., Walker, 2014 WL
1259618, at *3 (holding that failure-to-train cases, such as
Fiacco v. City of Rensselaer, 783 F.2d 319 (2d Cir.1986),
are inapposite to Monell claims alleging a widespread
custom). Simply put, the fact that there were allegations
of thirteen instances of excessive force during arrests over
four years (none of which involved findings or admissions
of culpability) during which hundreds, if not thousands, of
arrests were made does not plausibly demonstrate that the use
of excessive force during arrest was so frequent and pervasive
to constitute a custom. Walker, 2014 WL 1259618, at *1–3
(holding that the allegation that ten similar complaints were
filed against New York City in the ten preceding years was
insufficient to state a claim because the “paltry number of
complaints (none resulting in an adjudication of liability),
spread over a period so long in a city so large, hardly suggests
the frequency or pervasiveness of the purported custom that
is required to state a Monell claim”). (See also Aff. of David
L. Posner (“Posner Aff.”) Ex. D (Matrix Report), at 59 (Dkt.
No. 26) (noting that the City made “a total of 2,478 arrests in
2012”).) 11
11 The City puts forward several documents
not attached to Plaintiff's Complaint or PAC,
specifically, a redacted settlement stipulation from
one of the cases Plaintiff refers to in the PAC,
releases signed by some plaintiffs in the cases
referred to by Plaintiff in the PAC, and an excerpt
of the Matrix Report. (See Aff. of David L. Posner
(“Posner Aff.”) Ex. B–D (Dkt. No. 26).) The
Court considers the Matrix Report because it is
incorporated by reference into the PAC, as Plaintiff
specifically cites to the Report and its findings.
See Wilson v. Med. Unit Officials at George R.
Vierno Ctr. Jail at 09–09 Hazen St., No. 10–CV–
1438, 2011 WL 6780934, at *2 (E.D.N.Y. Dec.
27, 2011) (“Because they are explicitly cited in
[the] plaintiff's complaint, the court shall deem the
ultrasound reports incorporated by reference and
shall consider them in assessing [the] defendants'
motion to dismiss.”); Harrison v. Metro. Life
Ins. Co., 417 F.Supp.2d 424, 431 (S.D.N.Y.2006)
(considering a document outside the complaint
where the plaintiff “cites to” the document in her
complaint and specifically quoted from one part
of it). Furthermore, Plaintiff does not dispute the
veracity of the Report provided by the City.
The other documents provided by Defendants,
however, are not material to the Court's
determination of the City's Motion, so the
Court need not assess whether they are properly
considered.
*18 Additionally, in Plaintiff's Memorandum in Opposition,
he argues that the City has a police force of 75, and that
Plaintiff alleges that there were at least 15 to 20 police officers
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surrounding him, meaning that “Plaintiff's allegations, taken
as true, would mean that at least one-fifth of the entire
City of Newburgh Police Department was present for the
assault of Plaintiff, and both tolerated the abuse of plaintiff's
constitutional rights and did not fear retribution.” (Pl.'s Mem.
8.) However, the size of the City's police force is not a
fact alleged in the Complaint or PAC, and the Court cannot
consider additional factual allegations contained in Plaintiff's
papers. See Paul v. Bailey, No. 09–CV–5784, 2013 WL
2896990, at *5 (S.D.N.Y. June 13, 2013) (“[A]s a general
rule, ... courts should not consider factual allegations made for
the first time in opposition papers.”); Friedman v. MiraMed
Revenue Grp., L.L.C., No. 12–CV–5328, 2012 WL 5992163,
at *3 (S.D.N.Y. Nov. 19, 2012) (“[T]he [c]ourt declines
to consider the additional facts set forth in [the] plaintiff's
opposition papers that are not in his complaint.”). 12 In any
event, the allegation that 15 to 20 officers were present
during Plaintiff's arrest does nothing to establish that the
alleged excessive force happened as part of a well-established
practice or custom. Instead, this allegation only supports,
at best, a single instance where numerous officers allegedly
used excessive force. This is not an akin to establishing a
custom of use of excessive force. See Tuttle, 471 U.S. at 823–
24 (1985) (plurality opinion) (“Proof of a single incident of
unconstitutional activity is not sufficient to impose liability
under Monell [.]”); Triano, 895 F.Supp.2d at 532 (“Normally,
a custom or policy cannot be shown by pointing to a single
instance of unconstitutional conduct by a mere employee of
the municipality.” (alteration and internal quotation marks
omitted)). For the above reasons, Plaintiff fails to state a
Monell claim for relief against the City of Newburgh on the
theory that the City of Newburgh has a custom of using
excessive force during arrests so widespread to have the force
of law.
12 “[W]here a pro se plaintiff has submitted other
papers to the [c]ourt, such as legal memoranda,
the [c]ourt may consider statements in such papers
to supplement or clarify the plaintiff's pleaded
allegations.” Sommersett v. City of New York, No.
09–CV–5916, 2011 WL 2565301, at *3 (June
28, S.D.N.Y.2011) (italics and internal quotation
marks omitted). Here, however, Plaintiff was not
pro se when he submitted the PAC, so the Court
does not have an obligation read the PAC with
the special solicitude due to pro se plaintiffs.
See Neely, 2013 WL 752636, at *12 (“Although
the [c]ourt liberally construed [the][p]laintiff's pro
se [o]riginal [c]omplaint, since [the][p]laintiff is
now represented by counsel, the [c]ourt has no
obligation to construe the [p]roposed [a]mended
[c]omplaint liberally[.]” (brackets, italics, and
internal quotation marks omitted)).
The Court next considers whether Plaintiff has adequately
pleaded a claim for relief against the City under a deliberate
indifference theory, the fourth category of Monell claims.
“Monell's policy or custom requirement is satisfied where
a local government is faced with a pattern of misconduct
and does nothing, compelling the conclusion that the local
government has acquiesced in or tacitly authorized its
subordinates' unlawful actions.” Reynolds v. Giuliani, 506
F.3d 183, 192 (2d Cir.2007) (citing Jett, 491 U.S. at 737);
see also City of Canton, 489 U.S. at 394–95 (O'Connor,
J., concurring in part and dissenting in part) (“Where ... a
claim of municipal liability is predicated upon a failure to
act, the requisite degree of fault must be shown by proof of
a background of events and circumstances which establish
that the ‘policy of inaction’ is the functional equivalent of
a decision by the city itself to violate the Constitution.”);
Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 129 (2d
Cir.2004) (citing City of Canton for the proposition that a
“municipality can be liable for failing to train its employees
where it acts with deliberate indifference in disregarding
the risk that its employees will unconstitutionally apply
its policies without more training”); Johnson, 2011 WL
666161, at *3 (explaining that a plaintiff may demonstrate
the existence of a custom or policy by alleging “a failure by
policymakers to provide adequate training or supervision to
subordinates to such an extent that it amounts to deliberate
indifference to the rights of those who come into contact with
the municipal employees”). However, such a failure to act,
train, or supervise can constitute a municipal custom “only
where the need to act is so obvious, and the inadequacy
of current practices so likely to result in a deprivation of
federal rights, that the municipality or official can be found
deliberately indifferent to the need.” Reynolds, 506 F.3d at
192 (citing City of Canton, 489 U.S. at 390); see also Marte v.
N.Y.C. Police Dep ‘ t, No. 10–CV–3706, 2010 WL 4176696,
at *2 (S.D.N.Y. Oct. 12, 2010) (noting that a municipality's
failure to train its employees can support § 1983 liability only
where “ ‘the failure to train amounts to deliberate indifference
to the rights of persons with whom the police come into
contact.’ “ (quoting City of Canton, 489 U.S. at 388)).
*19 In City of Canton, the Supreme Court established
the “deliberate indifference” standard in the context of a
claim for failure to train, but “the stringent causation and
culpability requirements set out in that case have been applied
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to a broad range of supervisory liability claims,” including
claims for failure to supervise and failure to discipline.
Reynolds, 506 F.3d at 192 (citing Amnesty Am., 361 F.3d
at 127 (failure to supervise); Berry v. City of Detroit, 25
F.3d 1342, 1354 (6th Cir.1994) (failure to discipline)); see
also Connick v. Thompson, ––– U.S. ––––, ––––, 131 S.Ct.
1350, 1360, 179 L.Ed.2d 417 (2011) (noting that “deliberate
indifference” is a “stringent standard” requiring “proof that a
municipal actor disregarded a known or obvious consequence
of his action” (internal quotation marks omitted)). 13 In
this context, the Supreme Court has held that “where
a policymaking official exhibits deliberate indifference to
constitutional deprivations caused by subordinates, such that
the official's inaction constitutes a ‘deliberate choice,’ that
acquiescence may ‘be properly thought of as a city ‘policy
or custom’ that is actionable under § 1983.' “ Amnesty Am.,
361 F.3d at 126 (quoting City of Canton, 489 U.S. at 388);
see also Vann v. City of New York, 72 F.3d 1040, 1049 (2d
Cir.1995) (holding that a plaintiff “may establish the pertinent
custom or policy by showing that the municipality, alerted
to the [unconstitutional action by its employees], exhibited
deliberate indifference”); Sorlucco v. N.Y.C. Police Dep't, 971
F.2d 864, 871 (2d Cir.1992) (stating that municipal liability
lies where the subordinate's misconduct is “so manifest as to
imply the constructive acquiescence of senior policy-making
officials”).
13 The Supreme Court has emphasized that a
“municipality's culpability for a deprivation of
rights is at its most tenuous where a claim turns on
a failure to train.” Connick, 131 S.Ct. at 1359; see
also Tuttle, 471 U.S. at 822–23 (“[A] ‘policy’ of
‘inadequate training’ “ is “far more nebulous, and a
good deal further removed from the constitutional
violation, than was the policy in Monell.” ).
Plaintiff has attempted to allege two types of deliberate
indifference claims: failure to train and failure to supervise/
discipline. Indeed, “[a] § 1983 plaintiff injured by a police
officer may establish the pertinent custom or policy by
showing that the municipality, alerted to the possible use of
excessive force by its police officers, exhibited deliberate
indifference.” Vann, 72 F.3d at 1049. To establish deliberate
indifference for a failure to supervise and/or discipline claim,
the plaintiff must “show that the need for more or better
supervision to protect against constitutional violations was
obvious,” which may be established “by showing that there
were repeated complaints of civil rights violations,” and
“deliberate indifference may be inferred if the complaints
are followed by no meaningful attempt on the part of the
municipality to investigate or to forestall further incidents.”
Shepherd v. Powers, No. 11–CV–6860, 2012 WL 4477241,
at *9 (S.D.N.Y. Sept.27, 2012) (internal quotation marks
omitted). The Second Circuit has set out three requirements
that must be met before a municipality may be liable under
either theory: first, that a policymaker knows “ ‘to a moral
certainty’ “ that his or her employees will confront a given
situation; second, “ ‘that the situation either presents the
employee with a difficult choice of the sort that training
or supervision will make less difficult or that there is a
history of employees mishandling the situation;’ “ and third,
“ ‘that the wrong choice by the city employee will frequently
cause the deprivation of a citizen's constitutional rights.’ “
Jenkins v. City of New York, 478 F.3d 76, 94 (2d Cir.2007)
(quoting Walker v. City of New York, 974 F.2d 293, 297–98
(2d Cir.1992)).
*20 Applying these principles to this case, the Court
concludes that Plaintiff has sufficiently alleged that the need
for more or better supervision was obvious. There is no bright
line rule for how many complaints of civil rights violations
is sufficient to show the need for more supervision, nor is
there a bright line rule for how recent those complaints must
be. The City asserts that the complaints relied on by Plaintiff
regarding excessive force incidents that occurred between
2005 and 2008 are too sparse and too remote to support
an inference of obviousness. (Def.'s Mem. of Law in Supp.
of Dismissal (“City's Mem.”) 10 (Dkt. No. 28); Newburgh's
Reply Br. in Supp. of 12(b)(5) and 12(b)(6) Dismissal (“City's
Reply”) 5–6 (Dkt. No. 47).) However, the City provides no
authority to support the notion that a plaintiff must cite a
certain number of complaints in a certain time period to
make out a Monell claim. Indeed, the case law supports
Plaintiff's position here. For example, in McCants v. City of
Newburgh, No. 14–CV–556, 2014 WL 6645987 (S.D.N.Y.
Nov.21, 2014), clarified on denial of reconsideration, 2014
WL 7398910 (S.D.N.Y. Dec.9, 2014), the court denied a
motion to dismiss a Monell claim on deliberate indifference
grounds. In that case, the court found it sufficient that the
plaintiff's pleadings referred to other lawsuits demonstrating
that the municipality “was on notice to the possible use of
excessive force by its police officers on seventeen different
occasions.” Id. at *4. There, the seventeen excessive force
claims were made “in the seven-year time period prior to”
the incident resulting in the suit. Id. In Farrow v. City of
Syracuse, No. 12–CV–1401, 2014 WL 1311903, (N.D.N.Y.
Mar. 31, 2014), the Northern District of New York noted
in dicta that were the court deciding a motion to dismiss,
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the fact that “at least 15 excessive force complaints ha[d]
been filed against the [c]ity in the past 5 years” would be
sufficient state a plausible failure to train case. Id. at *8 n.
7; see also Shepherd, 2012 WL 4477241, at *10 (holding,
on a motion to dismiss where the complaint relied on a
Department of Justice (“DOJ”) report finding evidence of
unconstitutional activity in 2008 to support a claim that such
a custom existed in 2010, that the court “[was] obligated to
draw all reasonable inferences in [the] [p]laintiff's favor and
thus [took] as true for purposes of th[e] motion practice the
assertion that the deficiencies found by the DOJ existed at the
time of the alleged assault against [the][p]laintiff”). The Court
does not see any material difference between the seventeen
excessive force claims in seven years in McCants, the fifteen
excessive force claims in five years in Farrow, 14 and the
thirteen claims alleged in nine lawsuits in five years here. 15
While there may be questions about the quantum of proof
Plaintiff has regarding these other complaints at summary
judgment, Plaintiff's allegations allow the Court to plausibly
infer that the City was on notice that the police officers were
using excessive force in making arrests. See Osterhoudt v.
City of New York, No. 10–CV–3173, 2012 WL 4481927, at
*1 (E.D.N.Y. Sept. 27, 2012) (“Mere allegations have little, if
any, probative force and by themselves would hardly prevent
summary judgment. But in the context of Rule 12, where
plausibility is in issue, it is hard to ignore these cases, which
suggest that the conduct complained of is not limited to the
four corners of [the plaintiff's] complaint.”).
14 Indeed, the fifteen cases referred to in Farrow were
filed against the city in the preceding five years, so
the underlying claims likely occurred even outside
that timeframe.
15 Unlike in cases such as Perez v. N.Y.C. Dep't
of Corr., No. 10–CV–2697, 2012 WL 3704744
(E.D.N.Y. Aug.27, 2012), there is no doubt
here that the City knew about the complaints.
Id. at *3 (reasoning that “[w]hile a court may
consider complaints made against a municipality
and its response to them to determine whether the
municipality acted with deliberate indifference,”
the plaintiff's claims must be dismissed because the
“plaintiff does not allege who, if anyone, at [the
department of corrections] and/or the [c]ity knew
about the alleged incidents, or how and through
whom these entities may have responded to the
alleged incidents”).
Additionally, the Court concludes that it can
consider all of the other lawsuits cited by Plaintiff,
not just the ones involving police dogs, as Plaintiff
alleges a custom involving a broad array of
unconstitutionally excessive force during arrest,
resulting not only in him being attacked by a police
dog, but also being punched and beaten severely
during his arrest. (See PAC ¶¶ 14–16.)
*21 However, an allegation of numerous claims of excessive
force by itself is insufficient to raise an inference of deliberate
indifference due to failure to supervise. Instead, a plaintiff
must allege that “meaningful attempts to investigate repeated
claims of excessive force are absent.” Hart v. City of
Binghamton, No. 10–CV–1064, 2012 WL 1565085, at *5
(N.D.N.Y. May 2, 2012) (internal quotation marks omitted).
Put another way, “[f]or deliberate indifference to be shown,
the response must amount to a persistent failure to investigate
the complaints or discipline those whose conduct prompted
the complaints.” Id. (internal quotation marks omitted); see
also Lawrence v. City of Rochester, No. 09–CV–6078, 2015
WL 510048, at *7 (W.D.N.Y. Feb.6, 2015) (“Deliberate
indifference may be inferred from the failure to train or
supervise based on proof of repeated complaints of civil rights
violations that are followed by no meaningful attempt on the
part of the municipality to investigate or to forestall.” (internal
quotation marks omitted)); Aretakis v. Durivage, No. 07–
CV–1273, 2009 WL 249781, at *29 (N.D.N.Y. Feb. 3, 2009)
(same). Here, Plaintiff does not offer any allegations plausibly
establishing that the City failed to investigate the listed
complaints of excessive force. The only allegation Plaintiff
makes regarding the City's response to the other lawsuits
and the complaints made in the public forum is that “[u]pon
information and belief, the officers that were the subject of
these lawsuits were not disciplined by [the City] for their
actions.” (PAC ¶ 34.) This is insufficient.
There are two ways to plausibly plead deliberate indifference
with respect to failure to supervise/discipline. First, a plaintiff
may plead (1) that there was a pattern of allegations of or
complaints about similar unconstitutional activity and (2)
that the municipality consistently failed to investigate those
allegations. Second, a plaintiff may plead (1) that there
was a pattern of actual similar constitutional violations and
(2) the municipality consistently failed to discipline those
involved. However, what Plaintiff alleges here is (1) that
there was a pattern of allegations of or complaints about
similar unconstitutional activity and (2) that those allegedly
involved were not disciplined. This does not plausibly plead
a claim for deliberate indifference. There is no basis for the
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Court to conclude that Plaintiff plausibly alleged that the
past conduct was actually unconstitutional, and therefore it
would not be deliberately indifferent of the City to fail to
punish police officers for conduct that was not improper
or that they did not commit. Indeed, to plausibly allege a
deliberate indifference failure to discipline claim under the
second strategy, Plaintiff must allege a consistent pattern of a
failure to discipline unconstitutional action. See Posr v. City
of New York, 835 F.Supp. 120, 125 (S.D.N.Y.1993) (holding,
in granting a motion to dismiss a failure to discipline case,
that while “[i]t is true that a consistent failure to discipline can
give rise to a finding that a municipality has a policy of not
disciplining,” “[n]o court ... has ever held that a municipality
is required to discipline every officer upon a finding of
wrongdoing”), aff'd, 22 F.3d 1091 (2d Cir.1994); see also
Hart, 2012 WL 1565085, at *4 (holding, in the context of a
summary judgment motion, that “while [the][p]laintiff [had]
cited to numerous cases concerning citizen complaints of
the use of excessive force,” he “[had] not provided evidence
tending to indicate that any [of] the [ ] complaints were
of substance,” thus the “failure to find any of the officers
engaged in excessive force alleged in the complaints does not
mean a fortiori, that the [c]ity was deliberately indifferent
to the well being of its citizens”); cf. Bertuglia v. City of
New York, 839 F.Supp.2d 703, 738 (S.D.N.Y.2012) (denying a
motion to dismiss a deliberate indifference claim where “[t]he
plaintiffs have pleaded that the [c]ity has a longstanding, de
facto policy of never disciplining prosecutors who commit
specified types of prosecutorial misconduct and not otherwise
training them to avoid misconduct”). Finally, Plaintiff's
allegation that the Matrix Report concluded that the City's
“discipline guidelines and decisions are unstructured” and
recommended that certain changes be made is insufficient
to plausibly plead that there was a consistent failure to
investigate allegations of misconduct or punish incidents
of unconstitutionally excessive force to meet the stringent
standard of deliberate indifference. In particular, Plaintiff
alleges no causal link between the allegedly “unstructured”
discipline guidelines and the unconstitutional practice of not
investigating allegations of use of excessive force. For the
above reasons, the Court holds that Plaintiff has not plausibly
alleged a failure to supervise/discipline case against the City.
*22 The Court now turns to the additional requirements for
a failure to train claim. To allege a failure to train claim,
a plaintiff must plausibly allege a specific deficiency in
the municipality's training. In Amnesty America, the Second
Circuit suggested that to state a claim for a municipality's
failure to train its employees, a plaintiff “need only plead
that the city's failure to train caused the constitutional
violation,” because “[i]t is unlikely that a plaintiff would have
information about the city's training programs or about the
cause of the misconduct at the pleading stage.” 361 F.3d at
130 n. 10. However, since Twombly and Iqbal, “courts in
this district have generally required that plaintiffs provide
more than a simple recitation of their theory of liability, even
if that theory is based on a failure to train.” Simms, 2011
WL 4543051, at *2 n. 3 (collecting cases), aff'd sub nom.
Simms v. City of New York, 480 F. App'x 627 (2d Cir.2012);
see also Simms, 480 F. App'x at 631 n. 4 (“While it may
be true that § 1983 plaintiffs cannot be expected to know
the details of a municipality's training programs prior to
discovery, this does not relieve them of their obligation under
Iqbal to plead a facially plausible claim.” (citation omitted));
Santos, 847 F.Supp.2d at 577 (“Because the existence of
a municipal policy or practice, such as a failure to train
or supervise, cannot be grounded solely on the conclusory
assertions of the plaintiff, [the plaintiff's] claims against the
[c]ity are dismissed with prejudice.” (citation omitted)). To
state a claim for municipal liability based on failure to train,
Plaintiff therefore must allege facts that support an inference
that the municipality failed to train its police officers, that it
did so with deliberate indifference, and that the failure to train
caused his constitutional injuries. See Acosta v. City of New
York, No. 11–CV–856, 2012 WL 1506954, at *11 (S.D.N.Y.
Apr. 26, 2012) (dismissing Monell claim where plaintiff
merely alleged that the city “failed to train its police officers as
to display a deliberate indifference,” because plaintiff “failed
to set forth factual allegations that would support a plausible
inference that the [c]ity's ‘policies' or ‘customs' caused ... [the]
alleged violations of [the] plaintiff's rights”); Simms, 2011
WL 4543051, at *2 (dismissing failure to train claim where
there was “not enough factual material in the [c]omplaint for
the court to reasonably infer that the police misconduct [the
plaintiff] allege [d] was the result of anything other than the
individual acts of the arresting officers”); Johnson, 2011 WL
666161, at *4 (holding that a complaint that “contain[ed] only
an unsupported conclusory allegation that the [c]ity failed
to train the individual [d]efendants” could not withstand a
motion to dismiss because the plaintiff did not plead any facts
that “plausibly allege[d] a specific deficiency in the training
or supervision program” (internal quotation marks omitted));
Araujo v. City of New York, No. 08–CV–3715, 2010 WL
1049583, at *9 (E.D.N.Y. Mar. 19, 2010) (dismissing failure
to train claim where the plaintiff alleged “no facts to indicate
any deliberate choice by municipal policymakers to engage
in unconstitutional conduct”).
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*23 Other than Plaintiff's boilerplate assertions discussed
above, the sole fact Plaintiff pleaded with respect to the
City's failure to train its officers is that, “only 43% of sworn
officers who responded to the polling in the [Matrix Report]
agreed that they received appropriate training to do their
job well.” (PAC ¶ 36.) This factual allegation is just not
enough to nudge Plaintiff's claim from possible to plausible.
The polling data is not specific as to training regarding the
use of excessive force. Nor has Plaintiff pleaded any facts
suggesting that an alleged training deficiency caused his
constitutional injury, for example by identifying “procedural
manuals or training guides” or by “highlight[ing] relevant
particular aspects of police training or supervision.” Marte,
2010 WL 4176696, at *3. The allegation that, three years
after the incident in question took place, only 43% of
officers who responded to polling stated that they received
appropriate training to do their job well does not allow
the Court to plausibly conclude that, at the time of the
incident, the City's training as to the use of force during
arrest was insufficient and that that insufficiency led to
Plaintiff's injuries. See Hunter v. City of New York, 35
F.Supp.3d 310, 325–26 (E.D.N.Y.2014) (dismissing a Monell
failure to train claim because the pleadings did not plausibly
state a claim that there was “a specific deficiency in the
city's training program and that the deficiency is closely
related to [the plaintiff's] ultimate injury, such that it actually
caused [the plaintiff's] constitutional deprivation” (internal
quotation marks omitted)); Triano, 895 F.Supp.2d at 539
(dismissing a Monell failure to train claim where the plaintiff
“merely alleged that the [t]own fail[ed] to train its employees,
without providing any supporting factual detail about alleged
deficiencies in the training program, or regarding other
instances of police misconduct which could be attributed to
a failure to train”); Khanukayev v. City of New York, No. 09–
CV–6175, 2012 WL 3538729, at *4 (S.D.N.Y. Aug.13, 2012)
(dismissing a failure to train claim where “the complaint
[does not] ... allege ... the manner in which there was a
failure to train”); Doe v. City of New York, No. 09–CV–
9895, 2012 WL 2900483, at *2 (S.D.N.Y. July 2, 2012)
(“The [a]mended [c]omplaint contains no facts elaborating
on (or even theorizing as to) the defective nature of the
NYPD training program, let alone an allegation as to how
a defect in training or supervision caused her harm.”);
Simms, 2011 WL 4543051, at *3 (“While this assertion does
specify what type of training the officers lacked, it does
not provide any facts that would allow the court to infer
what city policies, practices, or customs contributed to or
caused the deficiency.”); Johnson, 2011 WL 666161, at *4
(dismissing a failure to train claim where plaintiff did not
plead “any facts that plausibly allege[d] a specific deficiency
in the training or supervision program that accounts for
deprivation of [his] constitutional rights” and “[did] not
identify procedural manuals or training guides, nor [did he]
highlight relevant particular aspects of police training or
supervision” (internal quotation marks omitted)); Brown v.
City of New York, No. 09–CV–2337, 2010 WL 4077925,
at *2 (S.D.N.Y. Oct.13, 2010) (dismissing a failure to train
claim where the plaintiff “[did] not allege any ... specific
deficiencies in the officers' training, nor [did] he allege any
facts from which the court could infer that such ... deficiencies
existed”); Williams v. City of New York, 690 F.Supp.2d 338,
345–46 (S.D.N.Y.2010) (dismissing a plaintiff's failure to
train claim where the plaintiff's complaint “once mention[ed]
the [c]ity's inadequate training program,” but did “not set forth
a single factual allegation relating to the program”). For the
foregoing reasons, Plaintiff fails to state a claim against the
City under Monell. However, the Court will give Plaintiff one
last chance to plead a Monell claim against the City.
b. Claims against Defendant Ransom
*24 Plaintiff's PAC contains the following allegation against
Defendant Ransom. The City Police Officers “gave chase to
[P]laintiff in a number of police vehicles,” and “[a]t some
point soon thereafter, and prior to Plaintiff stopping his
vehicle,” Defendant Ransom joined the chase. (PAC ¶ 12.)
That is the only allegation specifically referring to Defendant
Ransom. However, the Complaint and PAC also contain a
number of allegations against “the defendant police officers,”
a term defined in the Complaint as the City Police Officer
Defendants and unknown police officers 1–5, (Compl.¶ 4),
and not defined in the PAC. Plaintiff alleges that, after he
pulled over, Defendant Maguire “opened the truck door and
ordered his police dog to attack [P]laintiff,” and Plaintiff
was attacked by the police dog and punched by Defendant
Maguire. (PAC ¶ 14.) Plaintiff further alleges that although
he was “not resisting the police officers in any way,” he
was “dragged from the truck and thrown to the ground
by [Defendant Maguire] and additional officers,” and was
“thereupon beaten severely by the defendant officers, who at
this point were laughing and telling the dog what a good job
he had done.” (Id. ¶ 15.) Then, after Plaintiff was handcuffed
and secured, “the police dog was again ordered to attack”
Plaintiff. (Id. ¶ 16.) Additionally, Plaintiff alleges that “the
defendant police officers are liable for failing to intervene ...
because (1) the officers had a realistic opportunity to intervene
and prevent the harm, (2) a reasonable person in the officers'
position would have known that the plaintiff's constitutional
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rights were being violated, and (3) the officers did not take
reasonable steps to intervene.” (Id. ¶ 39.)
In response to the Town's Motion To Dismiss, Plaintiff
argues that Defendant Random “does not deny being present
at the scene,” and cites to Defendant Ransom's testimony
at Plaintiff's criminal trial to establish his presence at the
scene. (Pl.'s Mem. 11–13.) Plaintiff then argues that this
is sufficient at the pleading stage because Plaintiff has
sufficiently alleged that Defendant Ransom was present
and Plaintiff need not plead the “specific involvement of
each and every officer while he was being assaulted and
bitten by a police dog [.]” (Id. at 12.) However, there is
simply no basis for the Court to consider the testimony
given at trial in the manner that Plaintiff would like. This
testimony, attached as Exhibit B to Plaintiff's Memorandum
in Opposition, is not attached to the PAC, nor is it integral
to the PAC or incorporated by reference into the PAC.
See Rosenblum v. Thomson Reuters (Markets) L.L.C., 984
F.Supp.2d 141, 146 (S.D.N.Y.2013) (“In considering a motion
to dismiss for failure to state a claim pursuant to Rule 12(b)
(6), a district court may consider the facts alleged in the
complaint, documents attached to the complaint as exhibits, ...
documents incorporated by reference in the complaint [,
and] a document, not incorporated by reference, where the
complaint relies heavily upon its terms and effect, thereby
rendering the document integral to the complaint.” (footnotes
and internal quotation marks omitted)). “To be incorporated
by reference, the complaint must make a clear, definite
and substantial reference to the documents[.]” Bill Diodato
Photography L.L.C. v. Avon Products, Inc., No. 12–CV–847,
2012 WL 4335164, at *3 (S.D.N.Y. Sept. 21, 2012) (internal
quotation marks omitted). “[T]o be integral to a complaint,
the plaintiff must have (1) actual notice of the extraneous
information and (2) relied upon the documents in framing
the complaint.” Id. (internal quotation marks omitted). Here,
Plaintiff clearly has notice of the document, since he is the
one who submitted it to the Court. See Madu, Edozie &
Madu, P.C. v. SocketWorks Ltd. Nigeria, 265 F.R.D. 106,
124 (S.D.N.Y.2010) (“[T]here is no dispute that, pursuant to
the first prong of the integrality test, plaintiffs had ‘actual
notice’ of the extraneous information since they enclosed
the extrinsic documents with their opposition brief.”). The
Complaint and PAC make no reference whatsoever to
Defendant Ransom's testimony at Plaintiff's criminal trial,
and thus do not incorporate this document by reference.
Moreover, there is no evidence that Plaintiff relied on this trial
testimony in framing the Complaint or PAC. And, the fact that
it was Plaintiff, himself, who submitted this document as an
attachment to his opposition memorandum, counsels against
the Court considering it. Id. at 122–23 (noting that “[c]ourts in
[the Second] Circuit have made clear that a plaintiff may not
shore up a deficient complaint through extrinsic documents
submitted in opposition to a defendant's motion to dismiss”
and collecting cases).
*25 Finally, the Court “may also consider matters of which
judicial notice may be taken, even if the corresponding
documents are not attached to or incorporated by reference
in the complaint.” Munno v. Town of Orangetown, 391
F.Supp.2d 263, 268 (S.D.N.Y.2005). However, even if this
trial testimony is appropriate for judicial notice, the Court
would consider it “only to establish [its] existence and legal
effect, or to determine what statements [it] contained not for
the truth of the matters asserted.” Liang v. City of New York,
No. 10–CV–3089, 2013 WL 5366394, at *5 (E.D.N.Y. Sept.
24, 2013) (alterations and internal quotation marks omitted)
(quoting Twine v. Four Unknown N.Y. Police Officers, No.
10–CV–6622, 2012 WL 6184014, at *7 (S.D.N.Y. Dec. 12,
2012)); see also Roth v. Jennings, 489 F.3d 499, 509 (2d
Cir.2007) (“If the court takes judicial notice, it does so in
order to determine what statements [the document] contained
—but again not for the truth of the matters asserted.” (internal
quotation marks omitted)).
“It is well settled in this Circuit that personal involvement
of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.” Wright
v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (internal quotation
marks omitted). There are two ways a plaintiff can establish
personal involvement of a police officer in the use of
excessive force. “A police officer is personally involved in
the use of excessive force if the officer either: (1) directly
participates in an assault; or (2) is present during the assault,
and fails to intercede on behalf of the victim even though
he had a reasonable opportunity to do so.” Vesterhalt v.
City of New York, 667 F.Supp.2d 292, 297 (S.D.N.Y.2009).
Additionally, to be liable the officer must “observe[ ] or
ha[ve] reason to know that an individual's constitutional
right has been violated[.]” Brooks v. County of Nassau, –––
F.Supp.3d ––––, 2014 WL 5093277, at *5 (E.D.N.Y. Oct.9,
2014) (internal quotation marks omitted).
Plaintiff does not allege that Defendant Ransom directly
participated in the assault, therefore the question is whether
he sufficiently alleges that Defendant Ransom was present
and failed to intercede, even though he had a reasonable
opportunity to do so. First, Plaintiff's allegation that all “the
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defendant police officers are liable for failing to intervene ...
because (1) the officers had a realistic opportunity to intervene
and prevent the harm, (2) a reasonable person in the officers'
position would have known that the plaintiff's constitutional
rights were being violated, and (3) the officers did not take
reasonable steps to intervene” is a conclusory allegation
that does nothing more than provide a formulaic recitation
of the elements of a cause of action, and is therefore not
entitled to the presumption of truth. (PAC ¶ 39.) See Iqbal,
556 U.S. at 678 (“Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements,
do not suffice.... In keeping with [this] principle[ ] a court
considering a motion to dismiss can choose to begin by
identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.”);
Twombly, 550 U.S. at 555 (“[A] formulaic recitation of the
elements of a cause of action will not do.”). To state a
claim against each individually named defendant, Plaintiff
must include allegations as to that defendant. See Ochre
L.L.C. v. Rockwell Architecture Planning & Design, P.C., No.
12–CV–2837, 2012 WL 6082387, at *6 (S.D.N.Y. Dec. 3,
2012) (“Where a complaint names multiple defendants, that
complaint must provide a plausible factual basis to distinguish
the conduct of each of the defendants.”), aff'd, 530 F. App'x
19 (2d Cir.2013); Appalachian Enters., Inc. v. ePayment
Solutions, Ltd., No. 01–CV–11502, 2004 WL 2813121, at *7
(S.D.N.Y. Dec.8, 2004) (“A plaintiff fails to satisfy Rule 8,
where the complaint lumps all the defendants together and
fails to distinguish their conduct because such allegations fail
to give adequate notice to the defendants as to what they did
wrong.” (alterations and internal quotation marks omitted)).
*26 In a claim for excessive force or for failure to intervene
with respect to excessive force, courts in the Second Circuit
have allowed plaintiffs to use a flexible approach, recognizing
the difficulty that plaintiffs may have in pleading who did
what. For example, “[a] plaintiff need not establish who,
among a group of officers, directly participated in the attack
and who failed to intervene.” Jeffreys v. Rossi, 275 F.Supp.2d
463, 474 (S.D.N.Y.2003), aff'd sub nom. Jeffreys v. City of
New York, 426 F.3d 549 (2d Cir.2005). However, this does
not eliminate Plaintiff's burden to allege facts supporting a
plausible inference of personal involvement by Defendant
Ransom. For example, it is sufficient to allege “who was
present during the assaults, and that these defendants either
directly participated in the excessive force or failed to
intervene.” Snoussi v. Bivona, No. 05–CV–3133, 2010 WL
3924255, at *3 (E.D.N.Y. Feb. 17, 2010) (emphasis added),
adopted by 2010 WL 3924683 (E.D.N.Y. Sept.29, 2010). But,
a plaintiff fails to state a claim for which relief can be granted
if he does not make any factual allegations that any officer
“was present” or “had an opportunity to intercede.” K.D. ex
rel. Duncan v. White Plains Sch. Dist., 921 F.Supp.2d 197,
207 (S.D.N.Y.2013) (discussing failure to intervene in the
context of an alleged due process violation). In assessing the
sufficiency of Plaintiff's claims, the Court is also mindful that
the activities he describes—being handcuffed, thrown on the
ground, beaten, and attacked by a dog—“are likely to have
prevented [P]laintiff from identifying which of the defendant
officers specifically engaged in the bad acts.” Snoussi, 2010
WL 3924255, at *3 (brackets and internal quotation marks
omitted).
Here, though, Plaintiff fails to meet this liberal standard
with respect to his allegations against Defendant Ransom.
Plaintiff merely pleads that Defendant Ransom joined the
police chase. (PAC ¶ 12.) Plaintiff does not sufficiently
plead personal involvement, because he does not even plead
that Defendant Ransom was present at the scene of the
alleged unconstitutional conduct, and therefore also does
not sufficiently plead that a reasonable person in Defendant
Ransom's position would know that Plaintiff's rights were
being violated and that Defendant Ransom had a reasonable
opportunity to intervene but failed to do so. Plaintiff argues
that Defendant Ransom was at the scene, relying not on
allegations in the Complaint or PAC but rather on a document
outside the pleadings that the Court is not permitted to
consider, and based on an inference he suggests that “[a]t no
point does Ransom claim that he left the scene, so he was
presumably also present when Plaintiff was thrown to the
ground and beaten, and attacked by the police dog a second
time while in handcuffs.” (Pl.'s Mem. 12.) However, Plaintiff
never alleged that Defendant Ransom was at the scene. But,
in light of Plaintiff's citation to Defendant Ransom's trial
testimony, the Court will give Plaintiff one more opportunity
to amend his Complaint to include any additional allegations
against Defendant Ransom.
III. Conclusion
*27 For the above reasons, the Town's Motion To Dismiss
is granted; the claims against the Town are dismissed with
prejudice, and the claims against Defendant Ransom are
dismissed without prejudice. The City's Motion To Dismiss
is granted in part and denied in part. In particular, the
claims against the City are dismissed without prejudice, but
Plaintiff may file his PAC against the City Police Officer
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Defendants. Plaintiff shall properly serve the City Police
Officer Defendants within 21 days of the date of this Opinion,
or else face dismissal of the claims against those Defendants.
Additionally, Plaintiff is given 21 days to file an amended
complaint to supplement his allegations against Defendant
Ransom and the City. The Clerk of the Court is respectfully
requested to terminate the pending Motions. (See Dkt. Nos.
25, 29.)
SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2015 WL 1379652
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Tieman v. City of Newburgh
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Filings (1)
Title PDF Court Date Type
1. Docket 1:13-CV-04178
Tieman v. City of Newburgh et al
— S.D.N.Y. June 14, 2013 Docket
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Tieman v. City of Newburgh
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