5:25-cv-00956•Parson v. Cortland County Municipality et al
Testo completo
1 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 1 of 175
2 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; Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 2 of 175
3 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 3 of 175
4 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.). Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 4 of 175
5 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. Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 5 of 175
6 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.” Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 6 of 175
7 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). Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 7 of 175
8 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.”). Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 8 of 175
9 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 9 of 175
10 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 10 of 175
11 (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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 11 of 175
12 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. Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 12 of 175
13 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. Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 13 of 175
14 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 14 of 175
15 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 15 of 175
16 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”). Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 16 of 175
17 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, Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 17 of 175
18 292-93 (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). Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 18 of 175
19 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). Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 19 of 175
20 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. Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 20 of 175
21 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, Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 21 of 175
22 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 22 of 175
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; Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 23 of 175
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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 24 of 175
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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 25 of 175
SALIM S. ISMAIL, Plaintiff, v. ALBANY CITY SCHOOL DISTRICT,..., Slip Copy (2026) 2026 WL 1266259 WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2026 WL 1266259 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) Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 26 of 175
SALIM S. ISMAIL, Plaintiff, v. ALBANY CITY SCHOOL DISTRICT,..., Slip Copy (2026) 2026 WL 1266259 WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 27 of 175
SALIM S. ISMAIL, Plaintiff, v. ALBANY CITY SCHOOL DISTRICT,..., Slip Copy (2026) 2026 WL 1266259 WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 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 ... Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 28 of 175
SALIM S. ISMAIL, Plaintiff, v. ALBANY CITY SCHOOL DISTRICT,..., Slip Copy (2026) 2026 WL 1266259 WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 29 of 175
SALIM S. ISMAIL, Plaintiff, v. ALBANY CITY SCHOOL DISTRICT,..., Slip Copy (2026) 2026 WL 1266259 WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 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 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 30 of 175
SALIM S. ISMAIL, Plaintiff, v. ALBANY CITY SCHOOL DISTRICT, et al., Def... © 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 31 of 175
SALIM S. ISMAIL, Plaintiff, v. ALBANY CITY SCHOOL DISTRICT, et al., Def... © 2026 Thomson Reuters. No claim to original U.S. Government Works. Filings There are no Filings for this citation. Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 32 of 175
SALIM S. ISMAIL, Plaintiff, v. ALBANY CITY SCHOOL DISTRICT, et al., Def... © 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 33 of 175
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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 34 of 175
Ismail v. Albany City School District, Slip Copy (2026) 2026 WL 1266275 WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 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. Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 37 of 175
Urena v. City of New York, Not Reported in Fed. Supp. (2024) 2024 WL 4149182 WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 38 of 175
Urena v. City of New York, Not Reported in Fed. Supp. (2024) 2024 WL 4149182 WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 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). Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 39 of 175
Urena v. City of New York, Not Reported in Fed. Supp. (2024) 2024 WL 4149182 WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 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. Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 40 of 175
Urena v. City of New York, Not Reported in Fed. Supp. (2024) 2024 WL 4149182 WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 41 of 175
Urena v. City of New York, Not Reported in Fed. Supp. (2024) 2024 WL 4149182 WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 42 of 175
Urena v. City of New York, Not Reported in Fed. Supp. (2024) 2024 WL 4149182 WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 43 of 175
Urena v. City of New York, Not Reported in Fed. Supp. (2024) 2024 WL 4149182 WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 44 of 175
Urena v. City of New York, Not Reported in Fed. Supp. (2024) 2024 WL 4149182 WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 45 of 175
Urena v. City of New York, Not Reported in Fed. Supp. (2024) 2024 WL 4149182 WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 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 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 46 of 175
Urena v. City of New York © 2026 Thomson Reuters. No claim to original U.S. Government Works. Filings (1) Title PDF Court Date Type 1. Docket 1:22-CV-04679 Urena v. Shaw — S.D.N.Y. June 03, 2022 Docket Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 47 of 175
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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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 50 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. 2 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 51 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. 3 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. Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 52 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. 4 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, Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 53 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. 5 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). Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 54 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. 6 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 55 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. 7 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 56 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. 8 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 57 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. 9 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 58 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. 10 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 59 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. 11 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 60 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. 12 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 61 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. 13 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, Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 62 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. 14 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 63 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. 15 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 64 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. 16 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 67 of 175
Cole v. Smrtic, Not Reported in Fed. Supp. (2024) 2024 WL 4870495 WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 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). Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 68 of 175
Cole v. Smrtic, Not Reported in Fed. Supp. (2024) 2024 WL 4870495 WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 “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. Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 69 of 175
Cole v. Smrtic, Not Reported in Fed. Supp. (2024) 2024 WL 4870495 WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 70 of 175
Cole v. Smrtic, Not Reported in Fed. Supp. (2024) 2024 WL 4870495 WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 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 “§ 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 71 of 175
Cole v. Smrtic, Not Reported in Fed. Supp. (2024) 2024 WL 4870495 WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 72 of 175
Cole v. Smrtic, Not Reported in Fed. Supp. (2024) 2024 WL 4870495 WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 73 of 175
Cole v. Smrtic, Not Reported in Fed. Supp. (2024) 2024 WL 4870495 WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 75 of 175
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
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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); Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 78 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. 2 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 79 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. 3 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 80 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. 4 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 81 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. 5 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 82 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. 6 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 83 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. 7 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. Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 84 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. 8 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). Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 85 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. 9 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 86 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. 10 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 87 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. 11 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.” Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 88 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. 12 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 89 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. 13 ‘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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 90 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. 14 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. Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 91 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. 15 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 92 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. 16 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 93 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. 17 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) Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 94 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. 18 (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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 95 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. 19 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 96 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. 20 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 97 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. 21 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 98 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. 22 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. Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 99 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. 23 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. Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 100 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. 24 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. Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 101 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. 25 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 103 of 175
Villafane v. Sposato © 2026 Thomson Reuters. No claim to original U.S. Government Works. 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 106 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. 2 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 107 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. 3 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 108 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. 4 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). Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 109 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. 5 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). Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 110 of 175
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McRae v. Gentile, Not Reported in Fed. Supp. (2015) 2015 WL 7292875 WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 All Citations Not Reported in Fed. Supp., 2015 WL 7292875 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 114 of 175
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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 115 of 175
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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 116 of 175
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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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 118 of 175
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. 2 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 119 of 175
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. 3 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 120 of 175
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. 4 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 121 of 175
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. 5 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 122 of 175
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. 6 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 © 2026 Thomson Reuters. No claim to original U.S. Government Works. 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 © 2026 Thomson Reuters. No claim to original U.S. Government Works. Filings There are no Filings for this citation. 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.) Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 126 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. 2 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 127 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. 3 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.) Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 128 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. 4 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 129 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. 5 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. Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 130 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. 6 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. Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 131 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. 7 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 132 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. 8 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 133 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. 9 (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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 134 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. 10 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 135 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. 11 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 136 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. 12 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 137 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. 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 138 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. 14 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 There are no History results for this citation. 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 145 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. 3
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
Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 146 of 175Cruz 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. 4 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 147 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. 5 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 148 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. 6 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 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 149 of 175
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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 150 of 175
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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 151 of 175
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). Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 152 of 175
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. 2 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 153 of 175
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. 3 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 154 of 175
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. 4 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 155 of 175
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. 5 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 156 of 175
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. 6 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). Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 157 of 175
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. 7 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)). Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 158 of 175
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. 8 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 159 of 175
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. 9 *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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 160 of 175
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. 10 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 161 of 175
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. 11 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 162 of 175
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. 12 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 163 of 175
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. 13 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 164 of 175
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. 14 ‘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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 165 of 175
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. 15 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 166 of 175
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. 16 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, Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 167 of 175
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. 17 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 168 of 175
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. 18 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”). Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 169 of 175
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. 19 *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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 170 of 175
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. 20 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 171 of 175
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. 21 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 172 of 175
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. 22 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. Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 173 of 175
Tieman v. City of Newburgh © 2026 Thomson Reuters. No claim to original U.S. Government Works. 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 Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 174 of 175
Tieman v. City of Newburgh © 2026 Thomson Reuters. No claim to original U.S. Government Works. History There are no History results for this citation. Case 5:25-cv-00956-AJB-MJK Document 16 Filed 05/19/26 Page 175 of 175
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