Williams-Dorsey v. United States of America et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DAVONTE WILLIAMS DORSEY,
Plaintiff,
9:24-CV-1420
v. 	(BKS/DJS)
ALBANY COUNTY,
Defendant.
APPEARANCES: 	OF COUNSEL:
DAVONTE WILLIAMS DORSEY
Plaintiff pro se
11023-508
FCI Lompoc
3901 Klein Blvd
Lompoc, California 93436
JEFFERY V. JAMISON, ESQ. 	PHILIP BANASZEK, ESQ.
Albany County Attorney 	Assistant County Attorney
Attorney for Defendant
Albany County Attorney’s Office
112 State Street, Room 600
Albany, New York 12207
DANIEL J. STEWART
United States Magistrate Judge
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REPORT-RECOMMENDATION and ORDER1
Plaintiff, Davonte Williams Dorsey, brings this civil rights action, proceeding
pro se and in forma pauperis, pursuant to 42 U.S.C. § 1983, alleging that Defendant
Albany County violated his rights while he was held in the custody of Albany County
Correctional Facility (“ACCF”). 	Dkt. No. 19, Am. Compl. 	Following initial review
under 28 U.S.C. §§ 1915(e) & 1915A, the sole remaining claims are a section 1983
claim for excessive force and related state law claims. Dkt. No. 21 at p. 14. Defendant
moved to dismiss those claims brought under section 1983, pursuant to F ED . R. CIV . P.
(12)(b)(6). 	Dkt. No. 27 & 27-1, Def.’s Mem. of Law. 	Plaintiff opposed the motion.
Dkt. No. 30. Defendant filed a reply. Dkt. No. 31.
For the following reasons, the Court recommends that the Motion to Dismiss be
GRANTED.
I. BACKGROUND
Plaintiff Dorsey alleges in his Amended Complaint that on December 25, 2021,
while housed as a pretrial detainee, he was assaulted by four unknown inmates who were
also housed at ACCF. See Am. Compl. at ¶ 10. During the assault, Dorsey fell, hit his
head on the ground and as a consequence briefly lost consciousness. Id. As a result of
1 This matter was referred to the undersigned for a report-recommendation pursuant to 28 U.S.C. § 636(b) and
N.D.N.Y.L.R. 72.3(c).
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the alleged assault, Dorsey was left with numerous visible injuries including but not
limited to swelling and lacerations to his face and head. 	Id. 	at ¶ 11. 	Dorsey further
alleges correctional staff at ACCF responded to the incident and entered his housing unit
to intervene and stop the assault. 	Id. at ¶ 12. 	However, upon entering the unit, staff
allegedly handcuffed and detained Dorsey and, in doing so, slammed his head into a
steel grate. Id.
Dorsey alleges that, despite notifying medical staff that he had lost consciousness
and requesting further evaluation, Albany County personnel, including medical unit
staff, delayed providing him with adequate medical assessment or treatment. 	Id. at ¶¶
20-21. According to the Amended Complaint, when he was eventually provided with
medical care it was inadequate. Id. at ¶¶ 22-26.
Dorsey further alleges that the assault, the alleged excessive force, and the
subsequent failure to provide adequate medical care caused him continued pain and
suffering, an exacerbated concussion, a broken nose, scarring, and emotional distress.
Id. at ¶ 26. 	Plaintiff contends that the actions and omissions by Albany County, its
officials, agents, and employees - as well as Albany County’s policies, customs, and
practices, including its alleged deliberate indifference to inmate safety, serious medical
needs and tolerance of excessive force - directly and proximately caused Dorsey’s
injuries. See generally id.
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II. LEGAL STANDARD
On a motion to dismiss, the allegations of the complaint must be accepted as true.
See Cruz v. Beto, 405 U.S. 319, 322 (1972). 	The trial court’s function “is merely to
assess the legal feasibility of the complaint, not to assay the weight of the evidence
which might be offered in support thereof.” Geisler v. Petrocelli, 616 F.2d 636, 639 (2d
Cir. 1980). “The issue is not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims.” 	Scheuer v. Rhodes, 416
U.S. 232, 236 (1974) (overruled on other grounds by Davis v. Scherer, 468 U.S. 183
(1984)).
The Court is bound to give the plaintiff the benefit of every reasonable inference
to be drawn from the “well-pleaded” allegations of the complaint. 	See Retail Clerks
Int’l Ass’n, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 754 (1963).
Nevertheless, “the tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.” 	Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). 	Therefore, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” 	Id. (citation omitted). 	A
motion to dismiss pursuant to Rule 12(b)(6) may not be granted so long as the Plaintiff’s
complaint includes “enough facts to state a claim to relief that is plausible on its face.”
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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. at
697.
“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. at 678. This 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. In this respect, to survive dismissal, a plaintiff
“must provide the grounds upon which his claim rests through factual allegations
sufficient ‘to raise a right to relief above the speculative level.’” ATSI Commc’ns, Inc.
v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. at 555). Thus, in spite of the deference the court is bound to give to Plaintiff’s
allegations, it is not proper for the court to assume that “the [plaintiff] can prove facts
[which he or she] has not alleged or that the defendants have violated the . . . laws in
ways that have not been alleged.” 	Assoc. Gen. Contractors of Cal., Inc. v. Cal. State
Council of Carpenters, 459 U.S. 519, 526 (1983). The process of determining whether
a plaintiff has “nudged [his] claims . . . across the line from conceivable to plausible”
entails a “context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Ashcroft v. Iqbal, 556 U.S. at 679-80.
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Where, as here, the complaint was filed pro se, it must be construed liberally with
“special solicitude” and interpreted to raise the strongest claims that it suggests. Hill v.
Curcione, 657 F.3d 116, 122 (2d Cir. 2011). Nonetheless, a pro se complaint must state
a plausible claim for relief. See Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009).
III. DISCUSSION
Defendant moves to dismiss on two grounds: Plaintiff failed to properly exhaust
administrative remedies as required under the Prison Litigation Reform Act (“PLRA”)
and Plaintiff’s remaining claims fail to state a claim upon which relief may be granted
because they are not pled with sufficient particularity. Def.’s Mem. of Law at pp. 5-15.
A. Exhaustion of Administrative Remedies
Under the PLRA an incarcerated individual commencing litigation regarding
“prison conditions” must first exhaust available administrative remedies. 	Porter v.
Nussle, 534 U.S. 516, 525 (2002). 	Defendant seeks dismissal of the Amended
Complaint because “Plaintiff is completely silent on whether or not he even attempted
to exhaust administrative remedies prior to filing the instant suit.” Def.’s Mem. of Law
at p. 13. 	However, the Supreme Court has made clear “that failure to exhaust is an
affirmative defense under the PLRA, and that inmates are not required to specially plead
or demonstrate exhaustion in their complaints.” 	Jones v. Bock, 549 U.S. 199, 216
(2007); see also Def.’s Mem. of Law at p. 13 (“exhaustion is an affirmative defense and
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need not be raised in the Complaint.”). “The defendant bears the burden of proving that
the administrative remedies available to the plaintiff were not exhausted prior to the
initiation of a civil action.” Drake v. Rubera, 2025 WL 1885322, at *2 (N.D.N.Y. Apr.
25, 2025), report and recommendation adopted, 2025 WL 1553939 (N.D.N.Y. June 2,
2025). Defendant has not carried that burden here and so dismissal based on the failure
to exhaust is not appropriate.
B. Plaintiff’s Monell Claim against Albany County
Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, which provides a cause of
action for the deprivation of rights secured by the Constitution and laws of the United
States. See Am. Compl. at p. 1. A municipality may be held liable under Section 1983
only where the alleged constitutional deprivation results from an official policy, custom,
or practice. Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). It is well
established that a municipality cannot be held liable solely because it employs a
tortfeasor; rather, liability attaches only when execution of a municipal policy or custom
inflicts the injury. Id. at 690-92. To state a claim for municipal liability, a plaintiff must
allege a direct causal link between the municipal policy or custom and the alleged
constitutional violation. Id. To establish such policy or custom, a plaintiff may show:
(1) a formal policy endorsed by the municipality, (2) actions directed by
the government’s “authorized decisionmakers” or “those who establish
governmental policy,” (3) a persistent and widespread practice that
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amounts to a custom of which policymakers must have been aware, or (4)
a “constitutional violation [] resulting from [policymakers’] failure to train
municipal employees”
Deferio v. City of Syracuse, 770 F. App’x 587, 589-90 (2d Cir. 2019) (citing cases).
“For a Monell claim to survive a motion to dismiss, a plaintiff must allege
‘sufficient factual detail’ and not mere ‘boilerplate allegations’ that the violation of the
plaintiff’s constitutional rights resulted from the municipality’s custom or official
policy.” 	Thomas v. City of Troy, 293 F. Supp. 3d 282, 298 (N.D.N.Y. 2018) (quoting
Plair v. City of N.Y., 789 F. Supp. 2d 459, 469 (S.D.N.Y. 2011)). “[M]ere 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.” Triano
v. Town of Harrison, NY, 895 F. Supp. 2d 526, 535 (S.D.N.Y. 2012) (collecting cases);
see also Flannery v. Cnty. of Niagara, 763 F. Supp. 3d 364, 420 (W.D.N.Y. 2025).
Dismissal of a complaint is proper when it contains only “conclusory allegations [which]
are insufficient to plausibly infer a custom or policy to support municipal liability.”
Strong v. City of Syracuse, 2020 WL 137250, at *3 (N.D.N.Y. Jan. 13, 2020).
While Plaintiff alleges that the events underlying his claim “were consistent with
Albany County’s policies, customs, and practices of failing to ensure inmate safety,
protect from harm, [and] prevent excessive force,” Am. Compl. at ¶ 27, he offers nothing
more by way of attempting to establish the existence of such a policy. 	The “mere
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assertion . . . that a municipality has such a custom or policy is insufficient.” Dwares v.
City of New York, 985 F.2d 94, 100 (2d Cir. 1993). “To the extent that any allegations
in Plaintiff’s amended complaint suggest that the purported conduct was pursuant to a
policy, they are wholly conclusory and lack any factual detail” and that is a basis for
dismissal. 	D.J. by Comfort v. Corning-Painted Post Area Sch. Dist., 722 F. Supp. 3d
148, 162 (W.D.N.Y. 2024). 	While the Court “must accept Plaintiff[’s] factual
allegations as true, we ‘are not bound to accept as true a legal conclusion couched as a
factual allegation.’” Accarino v. Town of Monroe, 857 F. App’x 49, 50 (2d Cir. 2021)
(quoting Brown v. Daikin Am., Inc., 756 F.3d 219, 225 (2d Cir. 2014)).
Here, the Amended Complaint alleges a single incident involving unidentified
corrections officers and does not allege facts suggesting that the use of force resulted
from an official policy, widespread custom, or failure to train attributable to Albany
County. 	See generally Am. Compl. 	Although Plaintiff alleges that the events were
consistent with Albany County policies and references other incidents reported in news
articles, the Amended Complaint fails to plausibly allege facts showing the existence of
a widespread custom or practice at the time of Dorsey’s assault. 	Id. 	Plaintiff merely
relies on three news stories in order to provide a sufficient factual basis as to his claim.
Id. at ¶ 29. The articles relied on by Plaintiff were published two to three years after the
alleged assault occurred. 	See Tom Eschen, 	Advocates call for reform after claims of
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violence 	at 	Albany 	County 	Jail, 	CBS6 	A LBANY 	(Feb. 	26, 	2025),
https://cbs6albany.com/news/local/families-allege-excessive-force-at-albany-county-
correctional-facility-jail-abuse-corrections-officers-inmates-incarcerated-; 	Corey
James, 	Protesters 	allege 	correction 	officer 	misconduct 	at 	Albany 	County 	jail,
SPECTRUM 	N EWS 	1 	(Feb. 	28, 	2025) 	https://spectrumlocalnews.com/nys/central-
ny/news/2025/02/28/albany-county-jail-protest-alleged-abuse.2 	Plaintiff relies solely
on these post-dated articles and reports to establish a pattern that Albany County policy
makers were on notice of significant risks and failed to take adequate measures. 	Am.
Compl. at ¶ 32. 	Here, these incidents occurring after the alleged violation cannot
establish prior notice or a preexisting policy to establish liability under Monell. 	See
Dejesus v. Vill. of Pelham Manor, 282 F. Supp. 2d 162, 176 (S.D.N.Y. 2003). Both the
CBS6 and Spectrum News 1 articles provide examples of incidents which occurred in
2025, three years after incidents alleged in the Complaint. In Lewis v. Meloni, the court
held that a two-year gap is too attenuated to establish a connection between incidents
sufficient to suggest a custom or policy. 949 F. Supp. 158, 164 n.5 (W.D.N.Y. 1996).
Here, because the conduct described in the relied upon new articles occurred several
2 A third media report relied on by Plaintiff concerned inmate medical care, which is no longer an issue in this
matter. See Steve Hughes, Commission faults Albany County Jail in two inmate deaths, T IMES U NION (July 10,
2024), https://www.timesunion.com/news/article/state-faults-albany-county-jail-two-inmate-deaths-
19562699.php.
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years after the alleged assault, it cannot establish that a policy or custom existed at the
time of the incident involving Plaintiff. 	Furthermore, the articles do not identify
specific, factually detailed instances of conduct comparable to Plaintiff’s allegations and
instead rely on broad, generalized allegations, including advocacy group claims, protest
activity, and anecdotal accounts of alleged abuse that have not been adjudicated or
substantiated by any finding of liability.
The Amended Complaint references “numerous” prior incidents. Am. Compl. ¶
28. 	However, Plaintiff does not provide any information supporting the general time
frame of the incidents, any details as to what specific conduct is being alleged, or any
specific corrections officers or names. 	See generally id. 	Plaintiff fails to allege
sufficient factual detail, aside from mere boilerplate allegations, that the violation of his
rights resulted from the municipality’s custom or official policy. Id.
Accordingly, Plaintiff’s reliance on generalized, post-dated, and non-adjudicated
allegations is insufficient to plausibly allege the existence of a municipal policy or
custom, or to establish the requisite causal connection between any such policy and the
alleged constitutional violation.
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C. Supplemental Jurisdiction
Defendant also argues that should the federal claims be dismissed, this Court
should decline to exercise supplemental jurisdiction over any remaining state law
claims. Def.’s Mem. of Law at pp. 13-14.
A district court’s exercise of supplemental jurisdiction is governed by 28 U.S.C. §
1367. Subsection (a) of § 1367 provides:
(a) Except as provided in subsections (b) and (c) or as expressly provided
otherwise by Federal statute, in any civil action of which the district courts
have 	original 	jurisdiction, 	the 	district 	courts 	shall 	have 	supplemental
jurisdiction over all other claims that are so related to claims in the action
within such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution. . ..
28 U.S.C. § 1367(a). 	Under 28 U.S.C. § 1367(c), the district court may decline to
exercise supplemental jurisdiction over a claim under certain circumstances. 	See 28
U.S.C § 1367(c). 	In particular, declining to exercise jurisdiction is appropriate when
“the district court has dismissed all claims over which it has original jurisdiction.” 28
U.S.C § 1367(c)(3). In “‘the usual case in which all federal-law claims are eliminated
before trial’ such that ‘the balance of factors to be considered . . . judicial economy,
convenience, fairness, and comity . . . will point toward declining to exercise jurisdiction
over the remaining state-law claims.’” 	Kolari v. New York-Presbyterian Hosp., 455
F.3d 118, 119 (2d Cir. 2006) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,
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350 n. 7 (1988)). Indeed, in Carnegie-Mellon the Supreme Court noted that “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 by dismissing
the case without prejudice.” 484 U.S. at 350.
Given that guidance, it is recommended that the Court decline to exercise
supplemental jurisdiction over the remaining state law claims.
IV. CONCLUSION
WHEREFORE, it is hereby
RECOMMENDED, that the Motion to Dismiss (Dkt. No. 27) be GRANTED;
and it is
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)3 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.
3 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. F ED. 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.
FED. R. C IV. P. 6(a)(1)(C).
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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).
Date: 	June 12, 2026
Albany, New York
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Drake v. Rubera, Not Reported in Fed. Supp. (2025)
2025 WL 1885322
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 1885322
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Devon DRAKE, Plaintiff,
v.
Tyler RUBERA, et al., Defendants.
9:24-CV-24 (AJB/DJS)
|
Signed April 25, 2025
Attorneys and Law Firms
DEVON DRAKE, Plaintiff, pro se, 554806, Broome County
Correctional Facility, P.O. Box 2047, Binghamton, New York
13902-2047.
FRANK W. MILLER, ESQ., HANCOCK ESTABROOK,
LLP, Attorney for Defendants, 1800 AXA Tower I, 100
Madison Street, Syracuse, New York 13202.
REPORT-RECOMMENDATION and ORDER 1
1 This matter was referred to the undersigned for
a report-recommendation pursuant to 28 U.S.C. §
636(b) and N.D.N.Y.L.R. 72.3(c).
DANIEL J. STEWART, United States Magistrate Judge
*1 Plaintiff brings this civil rights action, pursuant to 42
U.S.C. § 1983, alleging that Defendants violated his rights
while he was held in the custody at the Delaware County
Correctional Facility. Dkt. No. 1, Compl. Following review
by the District Court pursuant to 28 U.S.C. § 1915(e) and 28
U.S.C. 1915A, Fourteenth Amendment excessive force and
failure to intervene claims against Defendants were permitted
to proceed. Dkt. No. 5 at pp. 5-6. Defendants have now
moved, prior to answering the Complaint, for Summary
Judgment, pursuant to Federal Rule of Civil Procedure 56(a),
seeking to dismiss the Complaint based on Plaintiff's failure
to properly exhaust his administrative remedies and failure to
state a claim. Dkt. No. 18-1. Plaintiff opposed the Motion,
Dkt. No. 24, Pl.’s Opp., and Defendants have replied. Dkt.
No. 25.
For the reasons that follow, the Court recommends that the
Motion for Summary Judgment be DENIED.
I. BACKGROUND
In November 2023, Plaintiff was housed as a federal detainee
at the Delaware County Correctional Facility. Compl. at p. 4;
Dkt. No. 18-6, DeMeo Aff. at ¶ 1. Plaintiff alleges that on
November 29, 2023, Defendants used excessive force against
him. Compl. at p. 4. He claims that Defendants maliciously
used physical force, including the application of chemical
agents without a good faith basis. Id. The record reflects that
there was a use of force incident involving Plaintiff on that
date. Dkt. No. 25-3, Ex. A. to DeMeo Reply Aff. at pp. 2-3.
Facility reports of the incident maintain that Plaintiff was
noncompliant with staff direction while being escorted to his
cell. Id. Those reports indicate that Plaintiff was taken to the
ground by force and that a chemical agent was used. Id. Those
records identify only one of the Defendants named in this
action, Vulaj, as being involved in the use of force. Id. at
p. 1. Although Delaware County Correctional Facility has a
grievance procedure inmates can use, there is no record that
Plaintiff filed a grievance regarding this incident. DeMeo Aff.
at ¶¶ 3-4.
II. SUMMARY JUDGMENT STANDARD
Pursuant to Federal Rule of Civil Procedure 56(a), summary
judgment is appropriate only where “there is no genuine
dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” The moving party bears
the burden to demonstrate through “pleadings, depositions,
answers to interrogatories, and admissions on file, together
with [ ] affidavits, if any,” that there is no genuine issue of
material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir.
1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)).
To defeat a motion for summary judgment, the non-movant
must set out specific facts showing that there is a genuine
issue for trial, and cannot rest merely on allegations or
denials of the facts submitted by the movant. FED. R. CIV.
P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d
Cir. 2003) (“Conclusory allegations or denials are ordinarily
not sufficient to defeat a motion for summary judgment when
the moving party has set out a documentary case.”); Rexnord
Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.
1994). To that end, sworn statements are “more than mere
conclusory allegations subject to disregard ... they are specific
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Drake v. Rubera, Not Reported in Fed. Supp. (2025)
2025 WL 1885322
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
and detailed allegations of fact, made under penalty of perjury,
and should be treated as evidence in deciding a summary
judgment motion” and the credibility of such statements is
better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289
(citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)
and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).
*2 When considering a motion for summary judgment, the
court must resolve all ambiguities and draw all reasonable
inferences in favor of the non-movant. Nora Beverages, Inc.
v. Perrier Grp. of Am., Inc., 164 F.3d 736, 742 (2d Cir.
1998). “[T]he trial court's task at the summary judgment
motion stage of the litigation is carefully limited to discerning
whether there are any genuine issues of material fact to be
tried, not to deciding them. Its duty, in short, is confined at this
point to issue-finding; it does not extend to issue-resolution.”
Gallo v. Prudential Res. Servs., Ltd. P'ship, 22 F.3d 1219,
1224 (2d Cir. 1994). Furthermore, where a party is proceeding
pro se, the court must “read [his or her] 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). Nonetheless, summary judgment is appropriate
“[w]here the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party.” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
III. DISCUSSION
A. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act (“PLRA”) provides, in
pertinent 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 Supreme Court has held that “the PLRA's 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.” Porter v. Nussle, 534 U.S. 516, 532 (2002)
(citation omitted). Exhaustion in prisoner cases covered
by § 1997e(a) is mandatory. Id. at 524; see also Ross v.
Blake, 578 U.S. 632, 638 (2016) (stating that the mandatory
language of § 1997e(a) forecloses judicial discretion to craft
exceptions to the requirement). Furthermore, § 1997e(a)
requires “proper exhaustion,” which means using all steps of
the administrative process and complying with “deadlines and
other critical procedural rules.” Woodford v. Ngo, 548 U.S.
81, 93 (2006). The defendant bears the burden of proving that
the administrative remedies available to the plaintiff were not
exhausted prior to the initiation of a civil action. Howard v.
Goord, 1999 WL 1288679, at *3 (E.D.N.Y. Dec. 28, 1999). 2
2 Copies of unreported cases from Westlaw are
attached to this opinion for Plaintiff's reference.
Under New York law, local correctional facilities such as
Delaware County Correctional Facility are required to have
a grievance procedure. 9 N.Y.C.R.R. § 7032.4(a). Delaware
County Correctional Facility has such a procedure. DeMeo
Aff., Ex. B at pp. 46-47. That policy directs inmates to file
a grievance “within 5 business days of the occurrence of the
issue giving rise to the grievance.” Id. at p. 46. Inmates are
required to request a grievance form on their Daily Inmate
Request Form. Id. The policy goes on to discuss the manner
in which grievances that are filed will be handled. Id. at pp.
46-47. Delaware County has no record of a grievance being
filed with respect to the Plaintiff's allegations. DeMeo Aff. at
¶ 6. 3 Nor does Plaintiff claim that he ever actually filed a
grievance. See Pl.’s Opp. Defendants, therefore, have carried
the burden of establishing a failure to exhaust.
3 The Court notes that while Defendants rely on
Plaintiff's failure to plead that he filed a grievance
in his Complaint, see, e.g., Defs.’ Mem. of Law at
p. 4, the law is clear that because exhaustion is an
affirmative defense, Plaintiff had no obligation to
do so. Jones v. Bock, 549 U.S. 199, 217 (2007) (“the
PLRA does not itself require plaintiffs to plead
exhaustion”).
*3 A prisoner's failure to exhaust administrative remedies
may nonetheless be excused if remedies were unavailable
to the inmate. Ross v. Blake, 578 U.S. at 642. As the
Supreme Court stated in Ross, “[a]n inmate ... must exhaust
available remedies, but need not exhaust unavailable ones.”
Id. The Court provided three potential circumstances in which
administrative remedies may be unavailable: (1) where the
administrative procedure technically exists but operates as a
“dead end - with officers unable or consistently unwilling
to provide any relief to aggrieved inmates”; (2) where
the administrative scheme is “so opaque that it becomes,
practically speaking, incapable of use”; and (3) where prison
administrators “thwart inmates from taking advantage of a
grievance process through machination, misrepresentation,
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or intimidation.” Id. at 643-44. Plaintiff bears the burden of
establishing that the grievance procedures were unavailable
within the meaning of Ross. Martin v. Wyckoff, 2018 WL
7356771, at *5 (N.D.N.Y. Oct. 16, 2018), report and
recommendation adopted, 2019 WL 689081 (N.D.N.Y. Feb.
19, 2019).
Plaintiff's opposition suggests that he was denied the ability to
file a grievance because he was not given a grievance form by
correctional staff. Pl.’s Opp. at p. 1. The incident underlying
the Complaint is alleged to have taken place on November 29,
2023. Compl. at p. 4. Under the facility policy, any grievance
was required to be filed within five days. DeMeo Aff., Ex.
B at p. 46. Plaintiff claims that he requested grievance forms
starting on November 30 and every day until he was moved
from the Delaware County Correctional Facility in January
2024 without receiving those forms, Pl.’s Opp. at p. 1, but
the evidence offered on this Motion is less clear. The record
establishes that grievance forms are provided upon request,
DeMeo Aff., Ex. B at p. 46, and the available records show
that Plaintiff made such a request only twice after the date of
the incident, once on November 30 and again on December
18. DeMeo Reply Aff. Ex. A at pp. 30-31 & 48-49, which
contradicts Plaintiff's assertions.
A further factual dispute concerns what was provided to
Plaintiff. Records show that Plaintiff requested two grievance
forms on November 30 th . DeMeo Reply Aff. Ex. A at
p. 30. Those same records suggest, however, that he was
provided only one. Id. at p. 31. Defendants have offered
evidence that Plaintiff did not grieve the claims in this case,
but offer no evidence regarding whether the one grievance
form allegedly provided may have been used to file a
grievance regarding another issue. See DeMeo Aff. at ¶¶
3 & 6 (noting that no grievance was filed regarding the
matters identified in the Complaint). Plaintiff denies having
received any grievance forms. Pl.’s Opp. That presents a clear
question of fact that cannot be resolved on this Motion. The
failure of correctional staff to provide grievance forms may,
under certain circumstances, render administrative remedies
unavailable. V.W. by & through Williams v. Conway, 236 F.
Supp. 3d 554, 585 (N.D.N.Y. 2017); but see Magassouba v.
Cross, 2010 WL 1047662, at *10 (S.D.N.Y. Mar. 1, 2010),
report and recommendation adopted, 2010 WL 4908670
(S.D.N.Y. Nov. 30, 2010). On the record before the Court,
summary judgment is not appropriate at this time given
questions of fact regarding Plaintiff's ability to grieve this
claim.
While the Court has the ability to order an exhaustion hearing,
see Messa v. Goord, 652 F.3d 305, 309 (2d Cir. 2011),
doing so here without the benefit of discovery would not
be the most efficient manner in which to resolve the factual
disputes presented here. “Only in the rarest of cases may
summary judgment be granted against a plaintiff who has
not been afforded the opportunity to conduct discovery.”
Hellstrom v. U.S. Dep't of Veterans Affairs, 201 F.3d 94, 97
(2d Cir. 2000); see also Roebuck v. Hudson Valley Farms,
Inc., 208 F.R.D. 34, 36 (N.D.N.Y. 2002) (finding summary
judgment premature where plaintiff had not yet been afforded
opportunity to conduct relevant discovery). Rather, the Court
recommends that the Motion for Summary Judgment be
denied as premature.
B. Merits of the Excessive Force Claim
*4 Defendants alternatively seek summary judgment on the
merits of the claim. Defs.’ Mem. of Law at pp. 5-9. They
contend that Plaintiff's Complaint fails to sufficiently allege
the claim. Id. at p. 6. Specifically, they claim that Plaintiff
has not adequately alleged who was involved in the incident
or “the circumstances ... that preceded the use of the pepper
spray.” Id. The allegations made in the Complaint, however,
do sufficiently allege both of these things. Plaintiff claims that
Defendants used force improperly for the purpose of causing
harm. He alleges that he was “securely locked in my cell
during a routine shakedown search” when “[a]ll defendants
maliciously use[d] force physically and used pepper spray to
cause me harm.” Compl. at p. 4. Plaintiff contends that he
suffered “vision impairment” as a result. Id.
In support of the Motion, Defendants have provided an
incident report. DeMeo Reply Aff., Ex. A at pp. 2-3. That
report makes clear that there was a use of force incident. The
reports suggests, for example, that Plaintiff was disruptive
and not complying with staff direction which ultimately
resulted in a correctional officer “perform[ing] a takedown”
of Plaintiff. Id. at p. 3. It also concedes that pepper spray was
used. Id. That report directly contradicts Plaintiff's allegations
and presents clear factual questions. Again, this is a pre-
answer motion and so no discovery has taken place. “When
a pre-answer motion for summary judgment has been filed,
a pro se litigant must be given notice of his ability to seek
discovery and submit evidence relevant to the issues raised
in the motion.” Baxter v. Vespa, 745 F. Supp. 3d 54, 58
(W.D.N.Y. 2024)
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IV. CONCLUSION
WHEREFORE, it is hereby
RECOMMENDED, that the Motion for Summary Judgment
(Dkt. No. 18) be DENIED; and it is
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
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
Not Reported in Fed. Supp., 2025 WL 1885322
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Strong v. City of Syracuse, Not Reported in Fed. Supp. (2020)
2020 WL 137250
WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 137250
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Willie J. STRONG, Jr., Plaintiff,
v.
The CITY OF SYRACUSE, Police Officer
Gonzalez, and Police Officer Katell, Defendants.
5:16-CV-1054 (NAM/ATB)
|
Signed 01/13/2020
Attorneys and Law Firms
Fred Lichtmacher, 116 West 23rd St., Suite 500, New York,
New York 10011, Attorney for Plaintiff.
Christina F. DeJoseph, Khalid Bashjawish, City of Syracuse
Corporation Counsel, 233 East Washington Street - Room
300, Syracuse, New York 13202, Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
Hon. Norman A. Mordue, Senior United States District Court
Judge
I. INTRODUCTION
*1 Plaintiff Willie J. Strong, Jr. brings this action under 42
U.S.C. § 1983 against the City of Syracuse (“City”), Police
Officer Gonzalez, and Police Officer Katell (collectively the
“Defendants”), alleging constitutional violations related to
his arrest by the officers in September 2013. (Dkt. No. 1).
Now before the Court is the Defendants’ unopposed motion
for judgment on the pleadings as to Plaintiff's third cause
of action. (Dkt. Nos. 57, 60). For the following reasons, the
motion is granted.
II. BACKGROUND
Plaintiff alleges that on September 2, 2013 at approximately
2:00 a.m., he was pulled over by Defendant Officers Gonzalez
and Katell and ordered to get out of his vehicle. (Dkt. No. 1, ¶
10). Plaintiff claims that he complied with the officers’ orders
and exited the vehicle with his hands raised, whereupon the
officers charged at him, struck him in the head, put him in
handcuffs, and kicked, elbowed, and punched him, all while
“hurling racial slurs at him.” (Id., ¶¶ 11–12, 14). Plaintiff
claims that he was taken to the hospital and received stitches
for his injuries, and that “[t]here was no need to use any force
much less the gratuitous, malicious force employed, before
and after the handcuffs were placed on [him].” (Id., ¶¶ 15–16).
Plaintiff's claims are as follows: (1) excessive force against
the officers; (2) failure to intervene against the officers; and
(3) a municipal liability claim against the City pursuant to
Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S.
658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). (Dkt. No. 1).
The Monell claim alleges that the City “tolerates members of
the [Syracuse Police Department (“SPD”)] committing acts
violating the Fourth Amendment rights of members of the
African American community.” (Id., ¶ 30). Plaintiff alleges
that “Syracuse operates and controls a police department
with numerous members, insensitive and hostile to the
African American community,” and that “SPD has had
frequent instances of the use of gratuitous, unreasonable and
excessive force against members of the African American
community as well as other violations of that community's
constitutional rights and still, Syracuse has failed to take
effective action to curtail the aforementioned behavior by
its officers.” (Id., ¶¶ 32–33). Plaintiff claims that the City
of Syracuse, “via its de facto policy of tolerating the abuse
of African Americans, caused plaintiff to sustain physical
injuries, including permanent and non-permanent physical
injuries....” (Id., ¶ 36).
III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(c) permits the entry of
judgment as a matter of law on the basis of the pleadings
alone. See Fed. R. Civ. P. 12(c); Oneida Indian Nation v.
Phillips, 397 F. Supp. 3d 223, 229 (N.D.N.Y. 2019). “The
standard for granting a Rule 12(c) motion for judgment on
the pleadings is identical to that of a Rule 12(b)(6) motion
for failure to state a claim.” Patel v. Contemporary Classics
of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001) (collecting
cases). “In both postures, the district court must accept all
allegations in the complaint as true and draw all inferences
in the non-moving party's favor.” Id. “To survive a Rule
12(c) motion, [the] ‘complaint must contain sufficient factual
matter, accepted as true, to state a claim for relief that is
plausible on its face.’ ” Johnson v. Rowley, 569 F.3d 40,
44 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). “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.” Iqbal,
556 U.S. at 678, 129 S.Ct. 1937. Legal conclusions, however,
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are not afforded the same presumption of truthfulness. Id.
The plausibility standard is not, however, a probability
requirement: the pleading must show, not merely allege, that
the pleader is entitled to relief. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007);
Fed. R. Civ. P. 8 (a)(2). In other words, to survive dismissal
the allegations in the complaint must nudge the claim “across
the line from conceivable to plausible.” Twombly, 550 U.S. at
570, 127 S.Ct. 1955.
*2 Moreover, “[i]n this District, when a non-movant fails to
oppose a legal argument asserted by a movant, the movant's
burden with regard to that argument is lightened, such that,
in order to succeed on that argument, the movant need
only show that the argument possesses facial merit, which
has appropriately been characterized as a ‘modest’ burden.”
Thomas v. City of Troy, 293 F. Supp. 3d 282, 296 (N.D.N.Y.
2018); see also McCall v. Pataki, 232 F.3d 321, 322 (2d Cir.
2000) (noting that for an unopposed motion to dismiss, courts
must “assume the truth of a pleading's factual allegations
and test only its legal sufficiency”) (citing De Jesus v.
Sears, Roebuck & Co., Inc., 87 F.3d 65, 69 (2d Cir. 1996)).
Accordingly, although Plaintiff states that he does not oppose
Defendants’ motion to dismiss his Monell claim (Dkt. No.
60), the Court will evaluate Defendants’ arguments on the
merits.
IV. DISCUSSION
The Defendants argue that the Court should dismiss Plaintiff's
Monell claim because “Plaintiff's conclusory allegations
wholly fail to plausibly allege a municipal liability claims
against the city under Section 1983.” (See Dkt. No. 57,
pp. 4–11). The Defendants characterize Plaintiff's allegations
as asserting two theories of municipal liability: (1) that
constitutional violations were widespread and tolerated by
the City through an unofficial, de facto policy; and (2)
that the City was deliberately indifferent to known abuses
based on its failure to train and/or discipline its officers.
(Id., pp. 6–7). The Defendants argue that the first theory
fails because Plaintiff asserts only “boilerplate statements”
that SPD officers routinely commit acts that violate the
rights of African Americans without alleging any specific
instances of misconduct amounting to a pattern or practice of
misconduct. (Id., pp. 7–9). Similarly, the Defendants argue
that the second theory fails because Plaintiff does not allege a
pattern of misconduct and therefore “cannot plausibly allege
an obvious need to discipline officers, much less deliberate
indifference.” (Id., pp. 9–10). In sum, Defendants contend that
Plaintiff's Monell claim must be dismissed because it consists
of only conclusory allegations that are entirely unsupported
by any facts. (Id., pp. 10–11).
It is well-established that a municipality may not be held
liable under Section 1983 on the basis of respondeat
superior. Monell, 436 U.S. at 694–95, 98 S.Ct. 2018. Rather,
municipalities are responsible only for “their own illegal
acts,” Pembaur v. Cincinnati, 475 U.S. 469, 479, 106 S.Ct.
1292, 89 L.Ed.2d 452 (1986), and are not vicariously liable
for civil rights violations perpetrated by their employees. See
Monell, 436 U.S. at 691, 98 S.Ct. 2018.
In order to plead a Section 1983 claim for municipal liability, a
plaintiff must plausibly allege that he suffered a constitutional
violation, and that the violation resulted from an identified
municipal policy or custom. Id. at 694–95, 98 S.Ct. 2018.
In order to plausibly allege a municipal policy or custom, a
plaintiff must offer facts showing any of the following: (1)
a formal policy, officially promulgated by the municipality,
id. at 690, 98 S.Ct. 2018; (2) an action taken by the official
responsible for establishing policy with respect to a particular
issue, Pembaur, 475 U.S. at 483–84, 106 S.Ct. 1292; (3)
unlawful practices by subordinate officials so permanent and
widespread as to practically have the force of law, City of
St. Louis v. Praprotnik, 485 U.S. 112, 127–30, 108 S.Ct.
915, 99 L.Ed.2d 107 (1985) (plurality opinion); or (4) a
failure to train, supervise, or discipline that amounts to
“deliberate indifference” to the rights of those with whom the
municipality's employees interact, City of Canton v. Harris,
489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).
Plaintiff appears to invoke the latter two theories. However,
upon review of the Complaint, the Court finds that Plaintiff's
allegations do not plausibly suggest that the City of Syracuse
followed a de facto policy that tolerated the widespread use
of excessive force against African Americans, nor that the
City was deliberately indifferent to constitutional violations
by SPD officers.
*3 Isolated acts of excessive force “are generally not
sufficient to demonstrate a municipal custom, policy, or usage
that would justify municipal liability.” Jones v. Town of
E. Haven, 691 F.3d 72, 81 (2d Cir. 2012). “On the other
hand, such acts would justify liability of the municipality if,
for example, they were done pursuant to municipal policy,
or were sufficiently widespread and persistent to support a
finding that they constituted a custom, policy, or usage of
which supervisory authorities must have been aware, or if a
municipal custom, policy, or usage would be inferred from
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evidence of deliberate indifference of supervisory officials to
such abuses.” Id. Critically here, Plaintiff fails to allege any
specific instances of misconduct by SPD, aside from his own
case, that can support an inference of a widespread pattern or
practice of excessive force that could amount to a municipal
policy or custom. Thus, Plaintiff's first Monell theory must
fail.
Relatedly, in order to plausibly allege deliberate indifference
under Plaintiff's second theory, he must offer facts suggesting
that “a policymaking official was aware of constitutional
injury, or the risk of constitutional injury, but failed to
take appropriate action to prevent or sanction violations of
constitutional rights.” Jones, 691 F.3d at 81. Thus, a failure
to train and/or discipline 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.” Triano v. Town of
Harrison, 895 F. Supp. 2d 526, 538 (S.D.N.Y. 2012) (quoting
Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007)).
Here, Plaintiff fails to plausibly allege that the City was
deliberately indifferent or ignored a need to train or discipline
SPD officers because, as discussed above, there is no
indication of any known pattern of unconstitutional police
misconduct. While Plaintiff claims there are “frequent” and
“widespread” instances of excessive force by SPD, such bald
allegations, without more, are insufficient. See Walker v. City
of New York, No. 14-CV-0808, 2015 WL 4254026, at *5–
11, 2015 U.S. Dist. LEXIS 91410, at *13–31 (S.D.N.Y. July
14, 2015) (finding that the plaintiff's conclusory allegations
of similar misconduct in the past did not create a plausible
inference of deliberate indifference and also that the plaintiff
did “not allege any specific facts as to the contents of the
complaints, how many were filed, and when they were filed”).
Nor can Plaintiff rely on other complaints of excessive force,
without facts indicating whether they were adjudicated or
otherwise substantiated in a way that would warrant discipline
and additional training. Simply put, without notice of the
alleged problem, the City could not have been deliberately
indifferent to it.
In sum, Plaintiff's conclusory allegations are insufficient to
plausibly infer a custom or policy to support municipal
liability. Therefore, Plaintiff's Monell claim must be
dismissed. See Arrindel-Martin v. City of Syracuse, No. 18-
CV-780, 2018 WL 6622193, at *5–8, 2018 U.S. Dist. LEXIS
212597, at *10–22 (N.D.N.Y. Dec. 18, 2018) (granting the
defendants’ motion to dismiss where the plaintiff failed
to allege instances of misconduct from which a pattern
of unconstitutional conduct could be inferred, or that the
defendants were deliberately indifferent to the alleged
conduct); Isaac v. City of New York, No. 16-CV-4729, 2018
WL 5020173, at *16–19, 2018 U.S. Dist. LEXIS 132995, at
*48–56 (E.D.N.Y. Aug. 6, 2018) (same).
V. CONCLUSION
For these reasons, it is
ORDERED that Defendants’ motion to dismiss Plaintiff's
third cause of action (Dkt. No. 57) is GRANTED; and it is
further
ORDERED that Plaintiff's third cause of action, the Monell
claim, is DISMISSED with prejudice; and finally, it is
*4 ORDERED that the Clerk provide a copy of
this Memorandum-Decision and Order to the parties in
accordance with the Local Rules of the Northern District of
New York.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 137250
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