Parson v. Cortland County Municipality et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
Drahcir S. Parson,
Plaintiff,
v. 	5:25-CV-956
(AJB/MJK)
Judge Julie Campbell, et al.
Defendants.
_____________________________________________________________________
Drahcir S. Parson, Plaintiff, pro se
Mitchell J. Katz, U.S. Magistrate Judge
To the Honorable Anthony J. Brindisi, U.S. District Judge:
ORDER & REPORT- RECOMMENDATION
Parson commenced this action on July 21, 2025, by filing a
Complaint (“Compl.”) and moving for leave to proceed in forma pauperis
(“IFP”). (Dkts. 1, 2). The Clerk has sent the Complaint and IFP
application to this Court for its review. (Dkts. 1, 6).
* * *
TABLE OF CONTENTS
I. 	BACKGROUND ................................................................................. 3
II. 	IFP APPLICATION ........................................................................... 3
III. 	STANDARD OF REVIEW ................................................................ 4
IV. 	DISCUSSION.................................................................................... 5
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B. 	Laurie A. Michelman ...................................................................... 8
C. 	Patrick Perfetti, Finney Raju, Christopher Simser, Elizabeth
Healy, and Ray Kyles .................................................................... 10
D. 	Victoria Monty ............................................................................. 13
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 .................................... 15
F. 	Luke Fenchel, Jarrod Smith, Melissa Smith, and Kevin Jones 17
G. 	Cheyenne Cute ............................................................................ 20
H. 	Nicholas Lynch and Mark Helms. .............................................. 23
I. 	Cortland County .......................................................................... 25
J. 	Group Pleading ........................................................................... 31
K. 	Adam Raymond and Thomas Kiehle .......................................... 32
1. 	Eighth Amendment ..................................................................... 32
2. 	Fourteenth Amendment .............................................................. 34
L. 	J. Tyler ............................................................................................ 36
1. 	Failure to protect from intolerable prison conditions. ............... 36
2. 	Fourteenth Amendment .............................................................. 37
3. 	Eighth Amendment ..................................................................... 40
4. 	Derogatory Comments ................................................................ 43
M. 	Sgt. Clark .................................................................................... 44
M. 	C.O. Johnston ................................................................................ 46
N. 	C.O. Jobson ................................................................................... 47
O. 	Nurse Christine – Jane Doe #46 .................................................. 48
P. 	C.O. John Doe – Auburn C.F. ....................................................... 53
Q. 	John Doe #49 – Elmira C.F. ......................................................... 56
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R. 	Fed. R. Civ. P. 8, 10, 18 and 20 ...................................................... 58
1. 	Rule 8 ........................................................................................... 58
2. 	Rule 10 ......................................................................................... 58
3. 	Rules 18 and 20 ........................................................................... 58
VI. 	CONCLUSION ................................................................................ 65
* * *
I. 	BACKGROUND
Parson’s claims arise from his December 15, 2020 arrest for
cashing a forged payroll check. (Dkt. 1, at 16). The forged check was
drawn on the account of Ithaca Dispatch Taxi Company. (Id.).
The Complaint asserts nine separate claims against 53
Defendants, spanning several years and numerous varying events. The
facts giving rise to Parson’s claims are presented in prose, consisting of
113 pages, and not in short, separately numbered paragraphs as
required by Fed. R. Civ. P. 8 and 10.
The Court will not provide a summary of the facts but will include
them where necessary in its review of Parson’s claims.
II. 	IFP APPLICATION
Parson declares in his IFP application that he is unable to pay the
filing fee. (Dkt. 6). After reviewing the IFP application, this Court finds
that Parson is financially eligible for IFP status.
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III. 	STANDARD OF REVIEW
In addition to determining whether a plaintiff meets the financial
criteria to proceed IFP, courts must also review the sufficiency of the
allegations in the complaint under 28 U.S.C. § 1915. That statute
requires a court to dismiss a case—at any time—if it determines that
the action is (1) frivolous or malicious; (2) fails to state a claim on which
relief may be granted; or (3) seeks monetary relief against a defendant
who is immune from such relief. See 28 U.S.C. § 1915 (e)(2)(B)(i)-(iii).
When determining whether an action is frivolous, courts must
consider whether the complaint lacks an arguable basis in law or in
fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on
other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and 28
U.S.C. § 1915. Dismissal of frivolous actions is appropriate to prevent
abuses of court process as well as to discourage the waste of judicial
resources. Neitzke, 490 U.S. at 327; see also Harkins v. Eldredge, 505
F.2d 802, 804 (8th Cir. 1974).
To be sure, courts have a duty to show liberality toward pro se
litigants and must use extreme caution when sua sponte dismissing pro
se complaints before adverse parties have been served and had an
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opportunity to respond. See Fitzgerald v. First E. Seventh St. Tenants
Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may
dismiss a frivolous complaint sua sponte even when plaintiff has paid
the filing fee). But courts still have a responsibility to determine that a
claim is not frivolous before permitting a plaintiff to proceed. See id.
IV. 	DISCUSSION
A. Judge Defendants
Parson names thirteen judges (the “Judges”) as defendants in this
action, all of whom are immune from suit.1
“The New York State Unified Court System is unquestionably an
arm of the State and is entitled to Eleventh Amendment sovereign
immunity.” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009)
(cleaned up). Similarly, judges within the New York State Unified Court
System are entitled to Eleventh Amendment immunity to the extent
they are sued in their official capacity. See Aron v. Becker, 48 F. Supp.
3d 347, 366 (N.D.N.Y. 2014) (dismissing claim against a Delaware
County judge on sovereign immunity grounds). Therefore, Parson
1 The Complaint refers to Judge Alexander who is not listed as a party to this action.
But even if the District Court finds that Judge Alexander is not entitled to the
privileges afforded by the Eleventh Amendment and/or judicial immunity, the
Complaint should nevertheless be dismissed against him under Fed. R. Civ. P. 10.
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cannot assert his claims against the Judges in their official capacities,
and the Court recommends that the Complaint be dismissed against the
Judges with prejudice and without leave to amend.
In addition to the Eleventh Amendment, the Judges are also
immune on judicial immunity grounds. See McNair v. Utica Police
Dep’t, 6:23-CV-699 (DNH/ATB), 2023 WL 4935993, at *3 (N.D.N.Y.
June 26, 2023), report and recommendation adopted, No. 6:23-CV-699,
2023 WL 4931609 (N.D.N.Y. Aug. 1, 2023). It is well settled that judges
have absolute immunity for their judicial acts performed in their
judicial capacities. See Mireles v. Waco, 502 U.S. 9, 11 (1991); see also
Shtrauch v. Dowd, 651 F. App’x 72, 73-74 (2d Cir. 2016) (“Generally,
‘acts arising out of, or related to, individual cases before the judge are
considered judicial in nature’”) (internal quotation omitted). “Judicial
immunity applies even when the judge is accused of acting maliciously
or corruptly.” Coon v. Merola, No. 1:19-CV-394 (DNH/ATB), 2019 WL
1981416, at *3 (N.D.N.Y. Apr. 8, 2019) (cleaned up) (citing Imbler v.
Pachtman, 424 U.S. 409, 419 n.12, (1976)). “The only two circumstances
in which judicial immunity does not apply is when he or she acts
‘outside’ his or her judicial capacity and when the judge takes action
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that, although judicial in nature, is taken ‘in absence of jurisdiction.’”
Serrano v. Diperna, No. 24-CV-483, 2024 WL 5247710, at *5 (W.D.N.Y.
Dec. 30, 2024) (quoting Mireles, 502 U.S. at 11-12).
The fact that Parson alleges throughout the Complaint that some
of the Judges “deprived him of his speedy trial rights—or any other
rights—does not make that conduct any less judicial.” Serrano, 2024
WL 5247710, at *5 (dismissing the allegations against the judge
defendants). The allegations against the Judges relate to actions
allegedly taken by them in connection with Parson’s various speedy
trial law motions, his motion to proceed pro se, or his habeas petitions
in the Appellate Division – Third Department. None of the
rulings/actions taken by the Judges in response to Parson’s procedural
maneuverings can be considered as anything other than judicial in
nature. See id.
Parson’s allegations that some of the Judges “lacked jurisdiction”
to continue prosecuting the forged instrument case because of the
speedy trial law violation does not mean that they “acted in the
complete absence of all jurisdiction.” Mireles, 502 U.S. at 11; see also
(Compl., Dkt. 1, at 63-75). There is a difference between a judge who
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acts in “excess of jurisdiction” and one who acts in “the clear absence of
all jurisdiction over the subject[ ]matter.” Stump v. Sparkman, 435 U.S.
349, 356-57, 356 n.6, 98 (1978) (citations omitted). Here, Parson does
not claim that any Judge erred in exercising jurisdiction over his
criminal matter. Rather, Parson alleges that the Judges erred in not
dismissing it based on the government’s delay. In other words, Parson’s
allegations—at most—suggest that the Judges exceeded their
jurisdiction or exercised their authority “error[neously]” or
“maliciously” which are insufficient grounds to overcome the application
of judicial immunity. See Stump, 435 U.S. at 356.
Accordingly, the Court recommends that the Complaint be
dismissed against the Judges, including Judge Alexander, with
prejudice and without leave to amend. Any amendment would be futile.
B. Laurie A. Michelman
Laurie Michelman is immune from suit and the Complaint should
be dismissed against her with prejudice and without leave to amend.
Judicial immunity has been extended to court clerks and “others
who perform functions closely associated with the judicial process”
when they are performing discretionary acts of a judicial nature which
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are essential to the judicial process, especially the filing of court
documents and managing a court’s calendar. See Cleavinger v. Saxner,
474 U.S. 193, 200 (1985); see also Rodriguez v. Weprin, 116 F.3d 62, 66
(2d Cir. 1997) (extending judicial immunity to state court clerks who
were ordered by Appellate Division judges not to provide a litigant with
documents and not to expand the record on appeal). Indeed, a “clerk’s
office activities of filing and docketing legal documents” are an “integral
part of the judicial process” and are thus entitled to absolute immunity.
McKnight v. Middleton, 699 F. Supp. 2d 507, 526 (E.D.N.Y. 2010)
(cleaned up), aff’d, 434 F. App’x 32 (2d Cir. 2011); see also Bey v. New
York, No. 11-CV-3296, 2012 WL 4370272, at *7 (E.D.N.Y. Sept. 21,
2012) (holding that court clerks were entitled to “absolute quasi[-
]judicial immunity” in suits alleging they refused to file documents);
Humphrey v. Court Clerk for the Second Circuit, No. 08-CV-0363, 2008
WL 1945308, at *2 (N.D.N.Y. May 1, 2008) (court clerks enjoy absolute
immunity “if the task was undertaken pursuant to the explicit direction
of a judicial officer or pursuant to the established practice of the court”
(citing Rodriguez, 116 F.3d at 67)).
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Here, Parson alleges that:
V. Monty lied to Court Assistant Michelman who turned a blind
eye to Plaintiff’s illegal detention. V. Monty lied to her in letter
saying I was arraigned on assault indictment on 11/9/2023 when
bail was set at $100k when in fact I was not arraigned on the
indictment until 2/22/24. Ms. Michelman requested the transcript
to court appearance for 2/22/24 with deadline yet no transcripts
were ever turned over ‘til this day.
(Dkt. 1, at 79).
Michelman’s alleged actions, or inactions, occurred within the
scope of her functions as a court clerk, which entitles her to immunity.
The Court therefore recommends that Parson’s Complaint as to
Defendant Michelman be dismissed with prejudice and without leave to
amend. Any amendment would be futile.
C. Patrick Perfetti, Finney Raju, Christopher Simser,
Elizabeth Healy, and Ray Kyles
Prosecutors sued under § 1983 enjoy absolute immunity ‘from
claims for damages arising out of prosecutorial duties that are
intimately associated with the judicial phase of the criminal process.’”
Joyner v. Cty. of Cayuga, No. 5:20-CV-1904088 (MAD/TWD), 2020 WL
1904088, at *9 (N.D.N.Y. Apr. 17, 2020) (cleaned up) (quoting Imbler v.
Pachtman, 424 U.S. 409, 430 (1976). Assistant attorney generals enjoy
the same immunity. See, e.g., Barr v. Abrams, 810 F.2d 358, 361 (2d
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Cir. 1987) (holding assistant attorney generals immune from suit based
on their actions in filing a criminal information and procuring arrest
warrant). Prosecutorial immunity from § 1983 liability covers “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) (quoting Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994)). This
includes “the decision to bring charges against a defendant, presenting
evidence to a grand jury, and the evaluation of evidence prior to trial.”
Moye v. City of New York, No. 11-CV-316, 2012 WL 2569085, at *5
(S.D.N.Y. July 3, 2012) (quoting Johnson v. City of New York, No. 00-
CV-3626, 2000 WL 1335865, at *2 (S.D.N.Y. Sept. 15, 2000)). Immunity
even extends to “the falsification of evidence and the coercion of
witnesses[;]” “the knowing use of perjured testimony[;]” “the deliberate
withholding of exculpatory information[;]” the “making [of] false or
defamatory statements in judicial proceedings[;]” and the “conspiring to
present false evidence at a criminal trial[.]”2
2 Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir. 1981) (citing Lee v. Williams, 617
F.2d 320, 321-22 (2d Cir. 1980)); Imbler, 424 U.S. at 431 n. 34; Burns v. Reed, 500
U.S. 478, 490 (1991); Dory, 25 F.3d at 83.
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Perfetti, Raju, Simser, Elizabeth, and Kyles are immune from
suit. Parson alleges that: (1) Simser, among other things, allowed Cute
to present false and misleading testimony to the grand jury, and
conspired to bury evidence that “implicated the actual culprits” (T. 26-
27); (2) Healy conspired to bury evidence that allegedly “implicated the
actual culprits in order to effect a scape goat prosecution of plaintiff” (T.
27); (3) Raju allowed a witness to offer perjurious testimony in a
criminal mischief case (T. 81); (4) Kyles conspired to “prolong illegal
detention of plaintiff and all other defendants” in the forged instrument
prosecution (T. 27), and “argued against Habeas release” (T. 79); and (5)
Perfetti conspired to bury evidence “that implicated the actual culprits
in order to effect a scape goat prosecution of plaintiff” (T. 27), omitted 4
months from the speedy trial law calculation arising from a December
8, 2022 complaint for assault (T. 33), approved Defendant Healy’s
“blatant misconduct” (T. 41), and failed to supervise and train the
assistant district attorneys (T. 44). All this alleged conduct occurred
within the scope of their employment. So Simser, Healy, Raju, Perfetti,
and Kyles are immune from suit. Thus, the Court recommends that the
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Complaint be dismissed against them with prejudice and without leave
to amend.
D. Victoria Monty
The Court recommends that the District Court dismiss the
Complaint as to Monty with prejudice and without leave to amend. The
Complaint is unclear as to whether Monty was an Assistant District
Attorney or the Cortland County Attorney at the time of the alleged
acts giving rise to Parson’s claims against her. Compare (T. 43) with (T.
79). So the Court analyzes Monty’s alleged liability under both
scenarios and finds that she is immune either way.3
To the extent Monty was acting as Corporation Counsel and not as
an Assistant District Attorney at the time Parson’s alleged claims
accrued, she is nevertheless immune from suit. Government attorneys
are immune from suit under Section 1983 for damages “when
functioning as an advocate of the state [or local government] in a way
that is intimately associated with the judicial process.” Mangiafico v.
Blumenthal, 471 F.3d 391, 396 (2d Cir. 2006). This immunity applies to
3 To the extent that Monty was acting in her capacity as an Assistant District
Attorney, she would be immune from suit for the reasons more fully articulated in
Section IV(D) above.
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government attorneys who perform functions “‘that can fairly be
characterized as closely associated with the conduct of litigation or
potential litigation’ in civil suits. Id.; see also O’Callaghan v. City of
New York, No. 16-CV-1139, 2016 WL 7177509, at *11 (S.D.N.Y. Dec. 8,
2016) (holding that an Assistant Corporation Counsel defendant was
entitled to absolute immunity for defending the City of New York in a
state civil action).
Here, Parson claims that Monty: (1) “buried evidence that
implicated the actual culprits in order to effect a scape goat prosecution
of Plaintiff” (T. 27); (2) omitted 4 months from the speedy trial
calculations in connection with a felony complaint for assault (T. 33); (3)
lied about the date that Parson was arraigned on the assault indictment
(T. 43); (4) lied about Parson allegedly throwing his “own waste on a
correction officer in Cortland County in [an] attempt to have restraints
on me at trial which Judge did grant” (T. 43); and (5) lied to Michelman
about Parson’s arraignment date (T. 79). All this conduct arises from
Monty litigating activities in Cortland County courts. So she is immune
from suit. The Court, therefore, recommends the Complaint should be
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dismissed against her with prejudice and without leave to amend. 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
The Court recommends that the Complaint be dismissed without
prejudice and with leave to amend as to Defendants 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.
Pleadings must contain, among other things, “a short and plain
statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2) (cleaned up). “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, prepare an adequate
defense and determine whether the doctrine of res judicata is
applicable.” Flores v. Graphtex, 189 F.R.D. 54, 55 (N.D.N.Y. 1999)
(internal quotations and citations omitted). Rule 8 also requires the
pleading to include “a short and plain statement of the grounds for the
court’s jurisdiction” and “a demand for the relief sought[.]” Fed. R. Civ.
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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. 1:24-CV-847
(MAD/CFH), 2024 WL 4870495, at *2 (N.D.N.Y. 2024) (quoting Fed. R.
Civ. P. 8(d)). Allegations “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).
Although listed in the caption, the Complaint lacks any specific
allegations against Defendants C.O. Stacey, C.O. Traphagen, C.O.
Haskins, C.O. Dorsett, C.O., 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. Instead,
Parson alleges that “[a]ll C.O.s and higher[-]ranking officers in the
various facilities that are named in this claim are involved in the
conspiracy to ‘squeeze’ a plea bargain out of me which did not work and
they all punished me for not copping out.” (T. 81). Parson further
alleges that “[e]ach correction officer who wrote [a] ticket for not closing
gate is liable for wrongful/unlawful confinement[.]” (T. 96). As pleaded,
Parson’s allegations do not afford the above-named defendants with
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sufficient information to allow them to properly defend themselves.
Stated differently, the Complaint is a “unadorned, the-defendant-
unlawfully-harmed-me accusation.” Ashcroft, 556 U.S. at 678. And that
is not enough to state a claim. See Scott v. Djeck, No. 5:09-CV-1122
(GTS/GHL), 2010 WL 145297, at *3 (N.D.N.Y. Jan. 11, 2010) (“Where a
defendant is listed in the caption but the body of the complaint fails to
indicate what the defendant did to the plaintiff, dismissal is
appropriate.”). The Complaint should therefore be dismissed.
F. Luke Fenchel, Jarrod Smith, Melissa Smith, and Kevin
Jones
The Court recommends dismissing the Complaint against
Fenchel, Jarrod Smith, Melissa Smith, and Jones with prejudice and
without leave to amend because they are not state actors. Criminal
defense attorneys, who represent a client during criminal proceedings,
are not “persons” acting under color of state law for purposes of liability
under Section 1983. See Polk County v. Dodson, 454 U.S. 312, 325,
(1981).
To support a Section 1983 claim, the defendant must be acting
under “color of state law.” However, an attorney representing a client in
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a criminal trial, whether that attorney is a public defender, legal aid
attorney, or court-appointed counsel, is not acting under the color of
state law. See Polk County, 454 U.S. at 325; see also Rodriquez v.
Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997) (stating that it is well
established that private attorneys—even if the attorney was court
appointed—are not state actors for the purposes of Section 1983
claims.). Parson’s attorneys are therefore not state actors under Section
1983.
Even if these Defendants were liable under §1983, Parson has not
plausibly alleged conduct they could be held liable for. Section 1983
liability may attach to defense attorneys if they conspire with state
officials. See Tower v. Glover, 467 U.S. 914, 923 (1984) (public defender
who conspired with state officials held liable under section 1983). But
Parson has not plausibly alleged facts that give rise to a conspiracy. For
example, Parson alleges that Jarrod Smith “conspired with Judge
Campbell and DA Perfetti to change the commencement date of assault
charge from December 8, 2022 to April 21, 2023.” (T. 53). Parson further
alleges that Fenchel was “ignorant to the law and going along with the
DA and Judge (Perfetti and Campbell) in ignoring clear speedy trial
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violation.” (T. 41). Finally, Parson alleges that “[a]ll defendants
conspired with Judge J. Campbell and Cortland County Municipality to
deprive Plaintiff’s State and Federal Constitutional rights in order to
inflate arrest and conviction rates for County of Corland and whatever
quid prop quo they established.” (T. 20). These allegations are simply
too conclusory to state a claim that Parson’s attorneys conspired with
state officials to violate his constitutional rights. See Ciambriello v.
County of Nassau, 292 F.3d 307, 324 (2d Cir. 2002) (“A merely
conclusory allegation that a private entity acted in concert with a state
actor does not suffice to state a [section] 1983 claim against the private
entity.”).
Finally, the Court recommends that Parson’s claim for legal
malpractice against Fenchel, M. Smith, J. Smith, and Jones be
dismissed without prejudice and without leave to amend because “an
action for legal malpractice . . . is not cognizable under [Section] 1983
since there is a total absence of state action as required by that section.”
Sommer v. Rankin, 449 F. Supp. 66, 67 (S.D.N.Y. 1978); see also
Stevenson v. Schiano, 2025 WL 1895830, at *9 fn. 7 (W.D.N.Y. Mar. 19,
2025).
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G. Cheyenne Cute
The Court recommends that the District Court dismiss Parson’s
malicious prosecution claim against Defendant Cute with prejudice and
without leave to amend.
Under New York law, “the elements of an action for malicious
prosecution are (1) the initiation of a proceeding, (2) its termination
favorably to plaintiff, (3) lack of probable cause and (4) malice.” Rivas v.
Suffolk County, 326 F.Supp. 2d 355, 362 (E.D.N.Y. Jul. 21, 2004)
(quoting Colon v. City of New York, 60 N.Y.2d 78, 82 (1983)).
The existence of probable cause is a complete defense to a claim of
malicious prosecution. Id. (citing Colon, 60 N.Y.2d at 82). An indictment
before a grand jury creates a presumption of probable cause that may
only be rebutted by evidence that the indictment was procured by
“fraud, perjury, the suppression of evidence or other police conduct
undertaken in bad faith.” Id. (quoting Colon, 60 N.Y.2d at 83); see also
Bermudez v. City of N.Y., 790 F.3d 368, 377 (2d Cir. 2015). Plaintiffs
cannot “rebut the presumption of probable cause with mere conjecture
and surmise that [their] indictment was procured as a result of conduct
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undertaken by the defendants in bad faith.” Savino v. City of New York,
331 F.3d 63, 73 (2d Cir. 2003) (cleaned up).
To plausibly allege a malicious prosecution claim, plaintiffs must
plead that the criminal proceeding terminated in their favor. Ricciuti v.
N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997). In this context,
favorable termination means a “final disposition” that “indicate[s] the
innocence of the accused.” Murphy v. Lynn, 118 F.3d 938, 948 (2d Cir.
1997); see also Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995) (“In the
absence of a decision on the merits, the plaintiff must show that the
final disposition is indicative of innocence.”).
In support of his claim for malicious prosecution, Parson alleges
that:
• 	“[w]ithout probable cause, [Cute] closed his eyes to facts that
would have helped clarify the circumstances of the incident
concerning negotiation of the check on June 15, 2020” (Compl.,
Dkt. 1, at 22),
• 	“probable cause dissipated well before Grand Jury testimony of
Sgt. Cute on June 4, 2021” (Id., at 22), and
• 	“[it] must be undisputed that probable cause dissipated once
indictment expired 9/12/2021 yet prosecution continued
maliciously.” (Id., at 24).
Parson’s allegations are meritless. “The fact that the Grand Jury
returned an indictment against [Plaintiff] creates a presumption that
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his arrest and indictment were procured with probable cause.”
Lawrence v. Sherman, No. 1:20-CV-694 (MAD/DJS), 2020 WL 7029171,
*2 (N.D.N.Y. July 28, 2020) Since Parson was indicted, his argument
that there was a lack of probable to prosecute him is presumptively
without merit.
A counterargument on this score does not pass muster. To be sure,
malicious prosecution claimants may rebut probable cause findings by
proffering evidence that the indictment was procured by “fraud, perjury,
the suppression of evidence or other bad police conduct.” Id. But
Parson’s attempt to do so is unavailing. While Parson claims that
“[e]vidence was deliberately and maliciously suppressed from plaintiff
and the Grand Jury” his allegations, without more, are insufficient to
obviate the finding of probable cause. See (Compl., Dkt. 1, at 25); see
also Savino, 331 F.3d at 73.
Last, Parson’s reliance on Judge Campbell’s Aprill 22, 2024 order
dismissing the underlying indictment on speedy trial grounds as a
predicate for negating the existence of probable cause in the first
instance is misplaced. See (Dkt. 1-1) Speedy trial dismissals are
“insufficient to establish the absence of probable cause” for an
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underlying arrest. Everett v. Dean, No. 3:20-CV-01260 (AMN/ML), 2023
WL 5452753, *7 (N.D.N.Y. Aug. 24, 2023). So Parson cannot rely on
Judge Campbell’s April 22, 2024 decision to counter a finding of
probable cause. Parson’s claim for malicious prosecution therefore fails
and any amendment would be futile.
H. Nicholas Lynch and Mark Helms.
The Court recommends that the District Court dismiss the
Complaint as to Lynch and Helms without prejudice and with leave to
amend.
Parson’s ninth claim alleges that Lynch and Helms (sued in their
individual capacities) “fail[ed] to train, supervise, or discipline officers
at the jail in order to protect Plaintiff from obvious threat of
retaliation.” (Compl., Dkt. 1, at 83). Specifically, Parson alleges that the
jail “implement[ed] a close your door while out of your cell rule” which
was “pure oppression and retaliation serving no penological purpose.”
(Id.). Parson also alleges that “a jury could permissibly find that the
harassment, intimidation, and endangerment of Plaintiff was at least
indirectly caused by Helms and directly caused by Lynch, both through
their acquiescence in that misconduct and through their deliberate
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24
indifference to the need to train their staff not to retaliate against an
inmate for exercising his First Amendment rights.” (Compl., Dkt. 1, at
91).
Parson’s vague and conclusory assertions are insufficient to
establish that Lynch and Helms knew their subordinates engaged in
any purported misconduct. The Complaint lacks facts about what Lynch
and Helms did or did not do to supervise or instruct their subordinates.
These unadorned claims are insufficient to plausibly allege that 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, 2015 WL 7292875, at *5 (N.D.N.Y. Oct. 20, 2015) (“[V]ague 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.”) (citing Pettus
v. Morgenthau, 554 F.3d 293, 300 (2d Cir. 2009)); Styles v. Goord, 431 F.
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25
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 Complaint
should therefore be dismissed against Lynch and Helms.
I. 	Cortland County
Liberally construed, the Complaint asserts two different theories
of liability against Cortland County. Parson’s first claim is predicated
on a theory of failure to train and supervise officers in its police
department. (Complaint, Dkt. 1, at pg. 37). Next, Parson seeks to
impose liability against Cortland County on the theory that Helms and
Lynch are “policy makers.” (Compl, Dkt., 1, at 90). This Court
recommends that Parson’s claims against Cortland County on both
theories be dismissed without prejudice and with leave to amend.
1. Failure to Train/Supervise
To succeed on a municipal liability claim for failure to supervise,
discipline, or train, a plaintiff must establish “deliberate indifference.”
Kosmidis v. Port Auth. of New York & New Jersey, 2021 WL 4442812, at
*7 (S.D.N.Y. Sept. 28, 2021) (cleaned up). Plaintiffs may satisfy the
“deliberate indifference” requirement by pleading that (1) “a policy-
maker knows to a moral certainty that her employees will confront a
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26
given situation;” (2) “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 (3) “the wrong choice by the city employee will
frequently cause the deprivation of a citizen's constitutional rights.” Id.
(citation omitted). Plaintiffs must plausibly allege that there was an
obvious need for more or better protocols or supervision to protect
against constitutional violations, by, for example, proof of repeated
complaints of civil rights violations. See Vann v. City of New York, 72
F.3d 1040, 1049 (2d Cir. 1995). “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.” Id.
Parson alleges that “Defendant Cortland County should know that
officers of its police department would face situations in which they are
expected to conduct investigations, collect information, and create
reports about event based on those activities.” (Complaint, Dkt. 1, at pg.
37). Parson’s conclusory allegations are insufficient to plausibly allege
deliberate indifference. A single incident of alleged wrongdoing by
individual police officers is not enough to sustain a Section 1983 claim
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27
against a municipality. See Bird v. Cnty. of Westchester, No. 20-CV-
10076, 2022 WL 2263794, at *12 (S.D.N.Y. June 23, 2022) (“[The]
[p]laintiff fails to allege the existence of any other similar incident,
which dooms [the p]laintiff’s claim because a custom or policy cannot be
shown by pointing to a single instance of unconstitutional conduct by a
mere employee of the municipality.” (internal quotation marks and
citation omitted). Yet Parson does not include any information about
the police department’s training or supervisory procedures and “has not
alleged that the ‘policymaker fail[ed] to make meaningful efforts to
address the risk of harm to [the] plaintiff[].’” Fantozzi v. City of New
York, No. 21-CV-4439, 2023 WL 4472305, at *5 (S.D.N.Y. July 11, 2023)
(citation omitted). Parson does not cite “other instances of police
misconduct which could be attributed to a failure to train.” Reynolds v.
City of New York, 21-CV-6111, 2024 WL 371863 at *18 (E.D.N.Y. Aug.
8, 2024). The Court therefore recommends that the District Court
dismiss the claims against Cortland County for failure to
train/supervise without prejudice and with leave to amend.
2. Helms and Lynch as policy makers/a Monell claim
against the County
Next, Parson alleges that “Helms and Lynch was county’s final
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policymaker with respect to conduct of his staff members towards
inmates exercising their First Amendment rights to speak publicly.”
(Compl, Dkt., 1, at 90). According to the Complaint, “[r]etaliation for
[Parson’s] grievances and promise to sue was directly caused by Sheriff
Helms with captain Lynch direct involvement.” (Id.). Even though
Parson indicates that Lynch and Helms are being sued in their
individual capacities as more fully addressed above, Parson’s
allegations against them suggest a possible Monell claim against
Cortland County, and the Court proceeds to analyze it accordingly. See
Monell v. Dep’t of Social Services. Of the City of N.Y., 436 U.S. 658
(1978). Monell dictates that any § 1983 claim against a municipal entity
must be premised on the theory that the municipal actor’s allegedly
unconstitutional “acts were performed pursuant to a municipal policy or
custom.” Patterson v. Cnty. of Oneida, 375 F.3d 206, 226 (2d Cir. 2004).
Courts in this Circuit apply a two-prong test for Section 1983
claims brought against a municipal entity. See Vippolis v. Vill. Of
Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (internal citation omitted).
First, a plaintiff must “prove the existence of a municipal policy or
custom in order to show that the municipality took some action that
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29
caused his injuries beyond merely employing the misbehaving officer.”
Id. “Second, the plaintiff must establish a causal connection—an
‘affirmative link’—between the policy and the deprivation of his
constitutional rights.” Id. (citing City of Oklahoma City v. Tuttle, 471
U.S. 808, 836, n.8 (1985)).
To satisfy the first requirement, a plaintiff must plausibly allege
the existence of:
(1) a formal policy which is officially endorsed by the
municipality; 	(2) 	actions 	taken 	or 	decisions 	made 	by
government officials responsible for establishing municipal
policies which caused the alleged violation of the plaintiff’s
civil rights; (3) a practice so persistent and widespread that it
constitutes a custom or usage and implies the constructive
knowledge of policy-making officials; or (4) a failure by official
policy-makers to properly train or supervise subordinates to
such an extent that it amounts to deliberate indifference to
the rights of those with whom the municipal employees will
come into contact.
Moray v. City of Yonkers, 924 F.Supp. 8, 12 (S.D.N.Y. 1996)
(internal citations and quotation marks omitted).
Although “[a] plaintiff is not required to identify an express rule or
regulation in order to establish a Monell claim, and a court may infer a
municipal policy from acts or omissions of the municipality’s policy
makers, . . . in the absence of other evidence, a ‘single incident of errant
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30
behavior is an insufficient basis for finding that a municipal policy
caused plaintiff's injury.’” JF v. Carmel Cent. Sch. Dist., 168 F. Supp, 3d
609, 617 (S.D.N.Y. 2016) (quoting Sarus v. Rotundo, 831 F.2d 397, 402-
03 (2d Cir. 1987)).
As an initial matter, Parson surmises that Lynch and Helms are
policy makers. And, even if they were, “rubberstamp[ing]” or “turn[ing]
a blind eye” to their subordinates’ decision-making is not sufficient to
establish either a municipal policy or the delegation of policymaking
authority. Baity v. Kralik, 51 F. Supp. 3d 414, 442 (S.D.N.Y. 2014)
(citations omitted). Parson cannot just assert Monell liability simply by
alleging that Lynch and Helms knew of their subordinates’ actions.
(Dkt. 1, at pg. 90). Parson must allege, which he has not, that
Defendants Lynch and Helms themselves caused the purported
deprivation of Parson’s rights. See Stalter v. Cnty. of Orange, No. 15-
CV-5274, 2016 WL 8711397, at *10 (S.D.N.Y. Aug. 5, 2016). And to the
extent that Parson intends to assert a claim against Cortland County,
he has not complied with the pleading requirements to maintain a
Monell claim. The Court therefore recommends that Parson’s claim
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31
against Cortland County be dismissed without prejudice and with leave
to amend.
J. Group Pleading
The Court recommends that the District Court dismiss the
Complaint as to the “Cortland County Jail Officials” and “[e]ach
Correction[s] Officer who wrote [me a] ticket for not closing [my] gate”
without prejudice and with leave to amend. (Complaint, Dkt. 1, at 89).
Group pleading is generally impermissible as a violation of the Federal
Rules of Civil Procedure’s notice requirements. See Atuahene v. City of
Hartford, 10 F. App’x 	33, 34 (2d Cir. 2001) (explaining that “lumping
all the defendants together in each claim and providing no factual basis
to distinguish their conduct” fails to satisfy minimum “fair notice”
standard of FRCP Rule 8).
Here, Parson makes allegations against “[e]ach Correction[s]
Officer who wrote [me a] ticket for not closing [my] gate” be dismissed
(Complaint, Dkt. 1, at pg. 96). However, Parson’s group pleading fails to
provide fair notice to any Cortland County Jail Official or Corrections
Officer. Parson’s inclusion of the “Cortland County Jail Officials” and
“each Correction Officer who wrote ticket for not closing gate” also
violates Fed. R. Civ. P. 10 as the individuals purportedly comprising
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32
these classes of individuals were not specifically named in the caption of
this action. Accordingly, the Court recommends that the Complaint be
dismissed without prejudice and with leave to amend as to the
“Cortland County Jail Officials” and “Corrections Officers.”
K. Adam Raymond and Thomas Kiehle
The Court recommends that the District Court permit Parson’s
excessive force claim against Defendants Raymond and Kiehle to
proceed.
The Court cannot determine based on the allegations in the
Complaint whether Parson was a pre-trial detainee or incarcerated at
the time his claim for excessive force accrued. So the Court will analyze
Parson’s claim under the Eighth and Fourteenth Amendments.
1. Eighth Amendment
Incarcerated individuals enjoy Eighth Amendment protection
against the use of excessive force and may recover damages under 42
U.S.C. § 1983 for a violation of those rights. See Hudson v. McMillian,
503 U.S. 1, 9-10 (1992). To sustain an Eighth Amendment excessive-
force claim, plaintiffs must establish both an objective and subjective
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33
element. See Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999); see
also Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993).
To satisfy the objective element, plaintiffs must prove that a
defendant’s conduct was “inconsistent with the contemporary standards
of decency.” Whitely v. Albers, 475 U.S. 312, 327 (1986) (citation
omitted); Hudson, 503 U.S. at 9 (1992). “The Eighth Amendment’s
prohibition of ‘cruel and unusual’ punishments necessarily excludes
from constitutional recognition de minimis uses of physical force,
provided that the use of force is not of a sort repugnant to the
conscience of mankind.” Hudson, 503 U.S. at 9-10 (citations omitted).
“Not every push or shove, even if it may later seem unnecessary in the
peace of a judge’s chambers, violates a prisoner’s constitutional rights.”
Sims v. Artuz, 230 F.3d 14, 22 (2d Cir. 2000) (citation omitted). Claims
“of excessive force 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.” Hudson, 503 U.S. at 7-10 (cleaned up).
To prove the subjective element, plaintiffs must show that the
Defendant’s actions were wanton. See Sims, 230 F.3d. at 21 (citation
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34
omitted). The wantonness inquiry “turns on ‘whether force was applied
in a good-faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.’” Id. (quoting Hudson, 503 U.S. at 7).
When determining whether defendants acted in a malicious or wanton
manner, courts consider five factors: (1) the extent of the injury and the
mental state of the defendant; (2) the need for the application of force;
(3) the correlation between that need and the amount of force used; (4)
the threat reasonably perceived by the defendants; and (5) any efforts
made by the defendants to temper the severity of a forceful response.
Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003).
2. Fourteenth Amendment
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, 396-9 (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
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35
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, 9, (1992)).
Parson’s Complaint plausibly alleges an excessive force claim
under the Eighth or Fourteenth Amendments. Parson alleges that he
was taken “to a holding cell and slammed face first by C.O. Adam
Raymond/C.O. Kiele then sat on my hands which were cuffed behind me
breaking my left thumb where my knuckle remains in the front of my
thumb unable to ever move it again unless I get surgery.” (Compl., Dkt.
1, at 97). These allegations plausibly allege C.O. Adam Raymond/C.O.
Kiele use excessive force. As a result, this Court recommends the
District Court allow Parson’s excessive-force claim against C.O. Adam
Raymond/C.O. Kiele to proceed. 4
4 The fact that the Court is recommending that Parson’s claim for excessive force
against Defendants Raymond and Kiehle survive sua sponte review does not mean
that it will survive a properly filed dispositive motion.
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L. 	J. Tyler
The Court recommends that Parson’s claims against Defendant
Tyler arising from the alleged failure to protect him from foreseeable
harm be dismissed without prejudice and with leave to amend. To the
extent the Complaint alleges a claim against Tyler arising from
purported derogatory remarks made by him to Parson, the Court
recommends that the same be dismissed with prejudice and without
leave to amend.
1. Failure to protect from intolerable prison
conditions.
Parson alleges that “there were no measures taken” by Defendant
Tyler “to prevent [any] foreseeable harm” associated with being placed
in “A-block next to Frank.” (Dkt. 1, at 87). In support of his claim,
Parson’s relies on Defendant Tyler’s purported statement that “I’m
surprised Frank didn’t beat your ass.” (Id.). Reading Parson’s pro se
pleading leniently as it must do, the Court construes his allegations as
a failure to protect claim. However, the Court cannot discern whether
Parson was a pre-trial detainee or incarcerated individual at the time
his purported claim accrued. See Darnell v. Pineiro, 849 F.3d 17, 29 (2d
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37
Cir. 2017). The Court will therefore analyze Parson’s failure to protect
claim under the Eighth and Fourteenth Amendments.
2. Fourteenth Amendment
“The Due Process Clause of the Fourteenth Amendment protects
pre-trial detainees . . . against intolerable prison conditions.” Damon v.
New York, No. 8:23-CV-74, 2023 WL 11965130 (GLS/CFH), *14
(N.D.N.Y. Mar. 28, 2023). “The failure to protect a pre-trial detainee
from harm is one type of intolerable prison condition. Thus, a prison
official’s deliberate indifference to a substantial risk of serious harm to
an inmate may form the basis of a deliberate indifference claim.” Id.
(cleaned up). “Not every injury suffered by one inmate at the hands of
another imposes constitutional liability on officials responsible for the
victim’s safety.” Little v. Cnty. of Nassau, 708 F. Supp. 3d 252, 263
(E.D.N.Y. 2023) (citation omitted).
Plaintiffs must plausibly allege two elements “to prove a
deliberate-indifference claim under the Fourteenth Amendment,
including when invoking a theory of failure to protect against (i.e.,
prevent) an inmate attack.” Id. The first element is an ‘“objective prong’
showing that the challenged conditions were sufficiently serious to
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constitute objective deprivations of the right to due process.” Darnell,
849 F.3d at 29. The second element is the mens rea prong which
requires the plaintiff to plausibly allege “that the officer acted with at
least deliberate indifference to the challenged conditions.” Id.
“When a prisoner is subjected to specific threats from another
inmate, and there are indication[s] that the threat will be carried out,
the failure of prison officials to act may give rise to a deliberate
indifference claim.” Damon, 2023 WL 11965130, at *14 (cleaned up).
“The objective prong can be satisfied even where no serious physical
injury results.” Id. (cleaned up). “At bottom, in assessing whether the
risk of an inmate’s violence against other inmates is sufficiently serious,
to trigger constitutional protection, the focus of inquiry must be, not the
extent of the physical injuries sustained in an attack, but rather the
existence of a substantial risk of serious harm.” Id. (cleaned up).
a. Objective Prong
There is no “static test” as to whether the evidence establishes
sufficiently serious conditions to satisfy the “objective prong.” Darnell,
849 F.3d at 30. A prison official’s failure to “intervene in an attack . . .
may under certain circumstances create a condition which poses a
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39
substantial risk of serious harm thus constituting a sufficiently serious
constitutional violation.” Molina v. County of Westchester, No. 16-CV-
3421, 2017 WL 1609021, at *3 (S.D.N.Y. Apr. 28, 2017). When
evaluating whether the risk of an inmate being harmed by another
inmate is “‘sufficiently serious,” the inquiry is whether “a substantial
risk of serious harm existed.” Blake v. Kelly, No. 12-CV-7245, 2014 WL
4230889, at *5 (S.D.N.Y. Aug. 26, 2014). While a prior altercation may
support the factual finding of a substantial risk of serious harm, there
is no requirement of a prior altercation. See Luckey v. Jonas, No. 18-CV-
8193, 2019 WL 4194297, at *4 (S.D.N.Y. Sept. 2019).
b. Mens rea prong
To satisfy the mens rea prong, “the pretrial detainee must
[plausibly allege] that the defendant-official acted intentionally . . . 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.” Darnell, 849 F.3d at 35. The mens
rea prong is objective in nature (unlike in the Eighth Amendment
context where it is subjective). Id., at 35-36. A pretrial detainee must
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40
therefore plausibly allege that the prison official acted purposefully or
with an objectively reckless disregard of the risk to the inmate - mere
negligence is insufficient. Id. at 36.
3. Eighth Amendment
“The Eighth Amendment requires prison officials ‘to take
reasonable measures to guarantee the safety of the inmates.’” Morgan v.
Dzurenda, 956 F.3d 84, 89 (2d Cir. 2020) (quoting Farmer v. Brennan,
511 U.S. 825, 832, (1994)). This responsibility “extends to ‘protect[ing]
prisoners from violence at the hands of other prisoners.’” Id. (alteration
in original) (quoting Farmer, 511 U.S. at 832). An incarcerated
individual “seeking to establish an Eighth Amendment violation for
failure to protect or deliberate indifference to safety must prove (1) ‘that
[the plaintiff] is incarcerated under conditions posing a substantial risk
of serious harm,’ and (2) that the prison official had a ‘sufficiently
culpable state of mind,’ which in ‘prison-condition cases’ is ‘one of
deliberate indifference to inmate health or safety.’” Morgan, 956 F.3d at
89 (alteration in original) (quoting Farmer, 511 U.S. at 834).
The “deliberate indifference” standard is comprised of both an
objective and subjective prong. See Hathaway v. Coughlin, 37 F.3d 63,
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66 (2d Cir. 1994). “First, the alleged deprivation must be, in objective
terms, sufficiently serious.” Id. (internal quotation marks and citation
omitted). “Second, the charged official must act with a sufficiently
culpable state of mind.” Id. This mens rea requirement is “more than
negligence, but less than conduct undertaken for the very purpose of
harm.” Id. “More specifically, a prison official does not act in a
deliberately indifferent manner unless that official ‘knows of and
disregards an excessive risk to inmate health or safety; the official must
both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the
inference.’” Id. (quoting Farmer, 511 U.S. at 837).
Parson cannot satisfy the objective prong under the Eighth or
Fourteenth Amendments. Specifically, the Complaint is devoid of any
allegations that: (1) Tyler was personally involved in the decision to
place Parson in A-block; (2) Tyler physically placed Parson in A-block;
(3) Frank ever attacked or threatened to attack Parson; and (4) Parson
ever told any official at the Cortland County Jail that he felt unsafe or
threatened being in A-block. Thus, the Parson has not plausibly alleged
a substantial risk of serious harm existed.
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Similarly, Parson cannot satisfy the subjective prong under the
Eighth or Fourteenth Amendments. There are no allegations in the
Complaint plausibly suggesting that Tyler acted in an objectively
reckless manner or that Tyler was aware of facts from which he could
draw and inference that Frank posed a substantial risk of serious harm.
Again, the Complaint lacks any allegations that Tyler was personally
involved in placing Parson in A-block or that Frank previously
threatened and/or attacked Parson. Even if Parson plausibly alleged
that he did not feel safe around Frank or that Frank might be after
him, which he did not, that too would be insufficient for Parson’s claim
against Defendant Tyler to survive initial review. See Morgan v.
Dzurenda, 956 F.3d 84 90 (2d Cir. 2020) (general complaints to officer
that inmate had been “threatened” by a certain inmate and “feared for
his safety” were not sufficient to notify officers of substantial risk of
harm); see also Wilson v. Campbell, No. 06-CV- 175 (GLS/RFT), 2008
WL 902187, at *5 (N.D.N.Y. Mar. 31, 2008) (“A general, conclusory
statement that an inmate fears for his safety, without more, is
insufficient information from which an inference can been drawn that
such inmate’s a safety is actually at risk.”)
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Accordingly, the Court recommends that the Complaint be
dismissed against Defendant Tyler without prejudice and with leave to
amend.
4. Derogatory Comments
The Court recommends that the Complaint be dismissed with
prejudice and without leave to amend to the extent that it asserts a
claim against Tyler for derogatory comments.
Section 1983 is not designed to remedy harassment or verbal
abuse. See Alnutt v. Cleary, 913 F. Supp. 160, 165-66 (W.D.N.Y. 1996)
(citations omitted). Accordingly, mere allegations of verbal abuse do not
rise to the level of a constitutional violation and are not cognizable
under 42 U.S.C. § 1983. See Moncrieffe v. Witbeck, No. 97-CV-253, 2000
WL 949457, at *3 (N.D.N.Y. June 29, 2000) (Mordue, J.) (allegations
that corrections officer laughed at inmate not actionable under section
1983) (citation omitted); see also Carpio v. Walker, No. Civ.A.95CV1502,
1997 WL 642543, at *6 (N.D.N.Y. Oct. 15, 1997) (Pooler, J. and
DiBianco, M.J. ) (“verbal harassment alone, unaccompanied by any
injury, no matter how inappropriate, unprofessional, or reprehensible it
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44
might seem, does not rise to the level of an Eighth Amendment
violation”).
Parson’s derogatory comments claim should not proceed. The
Complaint alleges that Tyler “announced to the A-Block inmates” at the
Cortland County Jail that parson “was getting raped in Auburn and
that’s why he’s back.” (Dkt. 1, at 103). Parson further alleges that Tyler
declared that “[y]ou were too pussy to fight Frank last time you were
here.” (Id.). According to Parson, Tyler’s purported
comments/statements “should offend society’s sense of decency” and
that “this is an intolerable practice in modern society.” (Id). While
Defendant Tyler’s comments, as alleged, may be wholly inappropriate,
they do not give rise to a cognizable claim under Section 1983 and any
purported claim arising therefrom should be dismissed with prejudice
and without leave to amend.
M. 	Sgt. Clark
The Court cannot determine based on the allegations in the
Complaint whether Parson was a pre-trial detainee or incarcerated
individual at the time his claim for excessive force against Clark
accrued. So the Court will analyze Parson’s claim under the Eighth and
Fourteenth Amendments. In either scenario, the Court recommends
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45
that Parson’s claim against Clark for excessive force arising under the
Eighth or Fourteenth Amendments survive sua sponte review and
require a response.5
“Pepper spray can be considered objective excessive force.”
Celestin v. Angeletta, No. 19-CV-1887, 2021 WL 1062344, at *4
(S.D.N.Y. Mar. 19, 2021). Fourteenth Amendment excessive-force
claims require force that is either “more than de minimis” or
“repugnant to the conscience of mankind.” United States v. Walsh, 194
F.3d 37, 48 (2d Cir. 1999) (citation and quotation marks omitted). “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 Complaint alleges that on November 21, 2022, Clark ordered
an unidentified corrections officer to open Parson’s cell. Clark entered
5 See the Court’s discussion regarding Defendants Raymond and Kiehle for the
standard of an excessive force claim arising under the Eighth and Fourteenth
Amendments.
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Parson’s cell with his “hands up to fight” asking Parson, “You wanna
go?” (Dkt. 1, at 97). Parson “started swinging” and then “immediately
layed down on [his] chest to be handcuffed.” (Id.). Once handcuffed,
Parson alleges that Clark “ordered C.O. Johnston to pepper
spray[him].” (Id.). Hesitating, Johnston asked “[y]ou want me to spray
him?” and Clark responded “[y]eah, spray him.” (Id.).
The Complaint plausibly alleges that Clark personally directed
Johnston to pepper spray Parson knowing that Parson was handcuffed
and 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. (quotation omitted); see also Campbell
v. City of Yonkers, No. 19-CV-2117, 2023 WL 4867459, at *9 (S.D.N.Y.
July 31, 2023).
M. C.O. Johnston
The Court cannot determine based on the allegations in the
Complaint whether Parson was a pre-trial detainee or incarcerated
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47
individual at the time his claim for excessive force against Johnston
accrued. So the Court will analyze Parson’s claim under the Eighth and
Fourteenth Amendments. In either scenario, the Court recommends
that Parson’s claim against Johnston for excessive force arising under
the Eighth or Fourteenth Amendments survive sua sponte review and
require a response. (Complaint, Dkt. 1, at 97).6
N. C.O. Jobson7
The Court recommends that the Complaint as to Defendant
Jobson be dismissed without prejudice and with leave to amend.
“To establish a defendant’s individual liability in a suit brought
under [42 U.S.C.] § 1983, a plaintiff must show, [among other things],
the defendant’s personal involvement in the alleged constitutional
deprivation.” Morabito v. New York, 803 F. App’x. 463, 466 (2d Cir.
2023) (cleaned up). “Pursuant to this requirement, a Section 1983
plaintiff must allege a tangible connection between the acts of the
defendant and the injuries suffered.” Keyes v. Venettozzi, No. 9:18-CV-
6 See the Court’s discussion regarding Defendants Raymond and Kiehle for the
standard of an excessive force claim arising under the Eighth and Fourteenth
Amendments.
7 Defendant Jobson is referred to as “Jobston” in the Complaint. (Dkt. 1, at 80). The
Court will assume that there is a typographical error in the spelling of this
Defendant’s last name.
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48
0372 (GTS/DJS), 2022 WL 991402, at *6 (N.D.N.Y. Mar. 31, 2022)
(quotation and internal quotation marks omitted). In other words, “the
actions or omissions attributable to each defendant must be the
proximate cause of the injuries and consequent damages that the
plaintiff sustained.” Durr v. Slator, 558 F. Supp. 3d 1, 20 (N.D.N.Y.
2021) (citations omitted).
Parson has not plausibly alleged Jobson’s personal involvement.
According to Parson, Jobson’s report notes that “Neely stated that he
did not get anything on him and that he was ok.” (Complaint, Dkt. 1, at
80). The Complaint further alleges that Judge Walsh did not allow
Parson to call Jobson “as a witness and [the] ADA did not call her.”
(Id.). Beyond that, the Complaint is devoid of any allegations suggesting
that Jobson was personally involved in any deprivation of Parson’s
constitutional rights. The Court therefore recommends that the
Complaint be dismissed against Defendant Jobson without prejudice
and with leave to amend.
O. 	Nurse Christine – Jane Doe #46
Parson alleges that because of his situation in Cortland County,
he “requested sleeping pills from nurse (Christine?) Jane [D]oe named
in this claim that I was taking to get though the nights.” (Compl., Dkt.
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49
1, at 92). Parson further claims that “[c]ome to find out the sleeping
pills were actually psyche meds that I immediately stop taking once I
found out by Auburn Correctional Facility nurses.” (Id.). As an initial
matter, the Court is unable to discern whether Parson was a pre-trial
detainee or an incarcerated individual at the time of the event alleged
in the Complaint.
“To state an Eighth Amendment deliberate-indifference-to-
medical-needs claim, incarcerated persons “must allege acts or
omissions sufficiently harmful to evidence deliberate indifference to
serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). This
standard “includes both subjective and objective components.” Mallet v.
New York State Dep't of Corr. & Cmty. Supervision, 126 F.4th 125, 132
(2d Cir. 2025) (quotation omitted).
The objective prong is satisfied when an incarcerated person
plausibly alleges the alleged deprivation is sufficiently serious. See
Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). “There is no
single metric” to determine whether a medical condition is sufficiently
serious. Mallet, 126 F.4th at 132. To be a sufficiently serious medical
condition, the condition must be one “of urgency” and one that “may
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50
result in degeneration or extreme pain, significantly affect[] daily
activities,” or the condition “involves chronic and substantial pain.” Id.
(quotations omitted). “A serious medical need can also” exist where the
“failure to treat” an incarcerated person’s “condition” results “in further
significant injury or the unnecessary and wanton infliction of pain.”
Webster v. Fisher, 694 F. Supp. 2d 163, 191 (N.D.N.Y. 2010). But “not
every lapse in prison medical care will rise to the level of a
constitutional violation.” Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir.
2003).
To satisfy the subjective prong, an incarcerated person must show
that prison officials “acted with a sufficiently culpable mind.” Mallet,
126 F.4th at 132 (cleaned up). The act, or omission, must show that the
prison officials consciously disregarded a substantial risk of serious
harm. See Farmer v. Brennan, 511 U.S. 825, 835 (1994). In simpler
terms, plaintiffs must show a defendant acted with a mental state like
criminal recklessness. Id at 839-40.
Conversely, if Parson was confined as a pretrial detainee at the
time he was administered he “psyche med,” his claims are governed by
the Due Process Clause of the Fourteenth Amendment, rather than the
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Cruel and Unusual Punishments Clause of the Eighth Amendment. See
Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (citation omitted).
“A pretrial detainee may establish a § 1983 claim for allegedly
unconstitutional conditions of confinement by showing that the officers
acted with deliberate indifference to the challenged conditions.”
Darnell, 849 F.3d at 29. Such a claim is typically analyzed under
a two-pronged standard. First, the pretrial detainee must satisfy the
“objective prong” showing that the conditions were “sufficiently serious”
as to constitute objective deprivations of constitutional rights. Id. at 29.
Second, the pretrial detainee must satisfy the “subjective prong” by
showing that the officer acted with deliberate indifference to the
challenged conditions. Id.
The objective prong of the deliberate indifference claim is the
same as a convicted prisoner under the Eighth Amendment. Id. at 30.
To satisfy the objective prong, “the [pre-trial detainee] must show that
the conditions, either alone or in combination, pose an unreasonable
risk of serious damage to his health,’ which includes the risk of serious
damage to 'physical and mental soundness.” Id.
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To satisfy the mens rea prong, a pretrial detainee must allege
facts showing 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.” Id. at 35; see also
Bruno v. City of Schenectady, 727 F. App’x 717 (2d Cir. 2018).
Parson plausibly alleges that Nurse Christine (Jane Doe #46)
violated his constitutional rights when she administered the “wrong
medication” by giving “psyche meds” rather than a sleeping pill, as he
requested. (Complaint, Dkt. 1, at pg. 92). The Complaint, however,
lacks any facts plausibly suggesting that Nurse Christine (Jane Doe
#46) acted with a culpable state of mind. As pleaded, the allegations
against Nurse Christine (Jane Doe #46) amount to a disagreement with
the nature of treatment and not a violation of Parson’s constitutional
rights which is not actionable. See Wright v. Conway, No. 05-CV-6723,
584 F.Supp.2d 604, 607 (W.D.N.Y. Nov. 5, 2008) (“[the plaintiff’s]
complaints demonstrate no more than his personal dissatisfaction with
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53
the level of care that he received, and these claims must therefore be
dismissed.”).
Even if Nurse Christine’s (Jane Doe #46) decisions surrounding
Plaintiff’s treatment implicate medical malpractice or negligence, her
actions and/or inactions do not give rise to either an Eighth or
Fourteenth Amendment violation. See Hendricks v. Coughlin, 942 F.2d
109, 113 (2d Cir. 1991) (holding that proof of negligence will not give
rise to a constitutional violation); see also McNamee v. Schoharie
County Jail, 06-CV-1364 (LED/GHL), 2008 WL 686796, at *6-7
(N.D.N.Y. March 10, 2008).
For these reasons, the Court recommends that the Complaint be
dismissed against Nurse Christine (Jane Doe #46) without prejudice
and with leave to amend.
P. 	C.O. John Doe – Auburn C.F.
The Court recommends that Parson’s claim that John Doe
Defendant #47, a Corrections Officer at Auburn Correctional Facility,
(“Auburn C.F.”) who allegedly “sexually molested him” be dismissed
without prejudice and with leave to amend. (Complaint, Dkt. 1, at pg.
18).
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Incarcerated individuals alleging Eighth Amendment sexual
abuse claims must allege both subjective and objective elements. See
Crawford v. Cuomo, 796 F.3d 252, 257 (2d Cir. 2015). Namely, the
incarcerated person must plausibly allege that the “officer’s intentional
contact with an inmate’s genitalia or other intimate area . . . serves no
penological purpose and is undertaken with the intent to gratify the
officer’s sexual desire or humiliate the inmate[.]” Crawford, 796 F.3d at
257. A court’s principal inquiry “is whether the contact is incidental to
legitimate official duties, such as a justifiable pat frisk or strip search,
or by contrast whether it is taken to arouse or gratify the officer or
humiliate the inmate.” Id. at 257-58.
A pretrial detainee’s claim of sexual abuse against a correctional
officer is governed by the due process clause of the Fourteenth
Amendment, and not by the Eighth Amendment, as “pretrial detainees
have not been convicted of a crime and thus may not be punished in any
manner—neither cruelly and unusually nor otherwise.” Darnell v.
Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (internal quotation marks,
citations, and alterations omitted). However, courts in this Circuit have
noted that it is not yet clear whether a pretrial detainee’s sexual abuse
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55
claim under the Fourteenth Amendment—as opposed to an excessive
force claim—is subject to an objective or subjective mens rea
requirement. See, Lewis v. Huebner, No. 17-CV-8101, 2020 WL 1244254,
at *9 (S.D.N.Y. Mar. 16, 2020) (“[I]t is presently unclear
whether both prongs required for Eighth Amendment sexual abuse
claims are also required for claims of sexual abuse under the
Fourteenth Amendment.”) (citation and internal quotation marks
omitted).
The Complaint is vague as to whether Parson was a pretrial
detainee or an inmate at the time of the alleged occurrence making it
difficult for the Court to determine whether his claim is subject to
Eighth or Fourteenth Amendment scrutiny. Further complicating the
Court’s analysis is Parson’s complete failure to provide any factual
support for his conclusory assertion that he was “sexually molested.”
(Complaint, Dkt. 1, at pg. 18). Parson’s lack of factual support also runs
afoul Fed. R. Civ. P. 8, making it difficult for John Doe Defendant #47,
once identified, to have sufficient notice of the claims against him.
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The Court therefore recommends District Court dismiss the
claims against John Doe Defendant #47 without prejudice and with
leave to amend.
Q. 	John Doe #49 – Elmira C.F.
The Court recommends that Parson’s claim against the individual
who allegedly destroyed his property be dismissed.
Parson alleges that a lieutenant at the Elmira Correctional
Facility “sprayed [a] fire hose on my neighbor and flooding much of my
cell destroying much of my legal documents.” (Dkt. 1, at 42). The Court
construes Parson’s allegations as asserting a claim for deprivation of
property. That claim cannot lie in federal court if the state court
provides an adequate remedy for the deprivation of that property. See
Hudson v. Palmer, 468 U.S. 517, 533 (1984); see also Marino v.
Ameruso, 837 F.2d 45, 47 (2d Cir. 1988) (citations omitted). New York
provides such a remedy in § 9 of the New York Court of Claims Act
which allows an inmate to pursue a claim for deprivation of property
against the State of New York in the New York Court of Claims. See
Forman v. Coughlin, No. 93CV- 8412 (LAK), 1994 WL 708150, at *1
(S.D.N.Y. Dec. 20, 1994) (“New York has adequate remedies [for
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deprivation of property claims] via recourse to the New York Court of
Claims. The Constitution requires nothing further.”). Because New
York State provides an adequate post-deprivation remedy for the
purported destruction of his property, Parson may pursue his claim in
state court even if he was a pre-trial detainee at the time of the alleged
loss. See Ortiz v. City of New York, No. 12-CV-3118, 2012 WL 6200397,
at *7 (S.D.N.Y. Dec. 12, 2012) (pre-trial detainee could pursue his claim
for deprivation of property through the New York Court of Claims and
not under § 1983).
The Court therefore recommends that the Complaint be dismissed
against John Doe – Elmira C.F. (Defendant # 49) without prejudice and
without leave to amend. See, e.g., Green v. Niles, No. 11-CV-1349, 2012
WL 987473, at *6 (S.D.N.Y. Mar. 23, 2012) (dismissing an inmate’s
claim because “a prison’s loss of an inmate[’s] property . . . will not
support a due process claim redressable under § 1983 if adequate state
post-deprivation remedies are available” (citation and quotation marks
omitted)).
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R. Fed. R. Civ. P. 8, 10, 18 and 20
1. Rule 8
See Section IV(E) above for a discussion of Fed. R. Civ. P. 8.
2. Rule 10
Fed. R. Civ. P. 10 states in relevant part that “[a] party must state
its claims or defenses in numbered paragraphs, each limited as far as
practicable to a single set of circumstances . . . . 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.”
3. Rules 18 and 20
Fed. R. Civ. P. 18 and 20 govern joinder of claims and parties,
respectively. Rule 18 permits a plaintiff to join as many claims as he
has against a particular defendant. See Fed. R. Civ. P. 18(a). However,
under Fed. R. Civ. P. 20, a plaintiff may not pursue unrelated claims
against multiple defendants. See Fed. R. Civ. P. 20(a)(2).
Fed. R. Civ. P. 20(a)(2) states:
[p]ersons . . . may be joined in one action as defendants if: (A)
any right to relief is asserted against them jointly, severally, or in
the alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences;
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and (B) any question of law or fact common to all defendants will
arise in the action.
“Although courts have interpreted Rule 20(a) liberally to allow
related claims to be tried within a single proceeding, ‘the mere
allegation that Plaintiff was injured by all Defendants is not sufficient
to join unrelated parties as defendants in the same lawsuit pursuant to
Rule 20(a).’” Clay v. Doe, No. 20-CV-7692, 2020 WL 6151436, at *1
(S.D.N.Y. Oct. 20, 2020) (citation omitted).
Parson’s Complaint runs afoul of Fed. R. Civ. P. 8, 10, 18, and 20.
First, the Complaint lacks a short and plain statement showing that
Parson is entitled to relief. Second, Parson’s failure to adhere to the
pleading rules and instead, provide the Court with 113 pages of prose,
makes the Court’s review of the Complaint a monumental and arduous
task. For example, Parson’s inartful pleading makes it difficult for the
Court to determine whether he was a pre-trial detainee or an
incarcerated individual at the time his alleged claims accrued. Third,
Parson’s multitude of claims against 53 Defendants alleged to have
occurred in multiple courthouses and correctional facilities over an
extended period is a blatant violation of Fed. R. Civ. P. 10 and 20 and
weaves a tangled web that the remaining Defendants should not be
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entangled in. See Smith v. Goord, No. 04-CV-6432, 2006 WL 2850597,
at *3-4 (W.D.N.Y. Sep. 22, 2006) (recommending disallowing joinder of
claims against defendants at different correctional facilities where there
was no suggestion that the original defendants were involved in the
actions taken against the plaintiff in a different facility more than one
year later), report and recommendation adopted by 2007 WL 496371
(W.D.N.Y. Feb. 12, 2007); see also Webb v. Maldonaldo, No. 3:13-CV-144
(RNC), 2013 WL 3243135, at *3 (D. Conn. June 26, 2013) (“Unrelated
claims against different defendants belong in different suits . . . to
prevent the sort of morass” created by a complaint with more than
twenty defendants and countless unrelated claims.") (quotation and
citation omitted).
Because of Parsons’ failure to comply with Fed. R. Civ. P. 8, 10,
18, and 20, the Court recommends dismissing the Complaint. See
Griffith v. New York State, No. 5:23-CV-1266 (DNH/ML), 2024 WL
1641587, at *4 (N.D.N.Y. Mar. 20, 2024) (recommending “dismissal of
the Complaint because it is not acceptable under Rules 8 and 10 of the
Fed. R. Civ. P. and because Plaintiff’s Section 1983 claim or claims
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61
against Defendant are entirely unclear”), report and recommendation
adopted, 2024 WL 1639856 (N.D.N.Y. Apr. 16, 2024).
However, the Court further recommends that Parson be allowed
to file an amended pleading and, if the District Court allows, commence
additional actions where each action asserts claims that 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:
1. 	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;
2. 	Nicholas Lynch and Mark Helms;
3. 	Cortland County Jail Officials (Dkt. 1, at 89) and “Each
Correction Officer who wrote ticket for not closing gate”
(Dkt. 1, at 96);
4. 	Adam Raymond and Thomas Kiehle;
5. 	J. Tyler only as to the failure to protect claim;
6. 	Sgt. Clark;
7. 	C.O. Johnston;
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8. 	C.O. Jobson;8
9. 	Nurse Christine – Jane Doe #46;
10. 	C.O. John Doe – Auburn C.F.; and
11. 	Cortland County
To be clear, Parson may not pursue unrelated claims against
unrelated defendants in a single action. For example:
a. Parson may pursue his claims against Sgt. Clark and C.O.
Johnston in the same action if the claims against them
arise from the same nucleus of operative facts. If,
however, Parson’s claim against them emanates from
different facts, he may not sue them in a single action –
Parson would be required to commence separate actions;
b. Parson may not pursue claims against 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 if his claims
against them arise from different facts. It might be the
case that Parson’s claims against several of the
defendants in this subparagraph arise from the same
operative facts in which case Parson could sue them in a
single action.
8 As noted in footnote 6, C.O. Jonson is referred to as C.O. “Jobston” in the
Complaint. The Court requests that Parson determine, if possible, which spelling is
correct.
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V. 	OPPORTUNITY TO AMEND
Generally, before the court dismisses a pro se complaint or any
part of the complaint sua sponte, the court should afford a plaintiff the
opportunity to amend at least once; however, leave to re-plead may be
denied where any amendment would be futile. See Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present
when the problem with plaintiff’s causes of action is substantive such
that better pleading will not cure it. See Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000) (citation omitted).
Here, the Court recommends that Parson be granted leave to file
an amended pleading and commence additional actions consistent with
Section IV(S) above. Should the District Court allow Parson to amend
the Complaint, the operative pleading must clearly be labeled
“Amended Complaint” and bear the docket number 5:25-CV-956
(AJB/MJK). Parson is strongly encouraged to read and comply with the
prisoner pro se handbook, a copy of which the Clerk is directed to send
to him. The amended pleading, and any additional pleadings, must be
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64
signed9 and otherwise comply with Fed. R. Civ. P. 8, 10, 18, and 20 as
noted herein.
Parson must set forth all claims he intends to assert and plausibly
allege that a case or controversy exists between her and any Defendants
by name over which this Court has jurisdiction. Parson must clearly
set forth facts giving rise to his purported claims in separate and
consecutively numbered paragraphs. The amended pleading must be a
wholly integrated and a complete pleading that does not rely upon, or
incorporate by reference, any pleading or document previously filed
with the Court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124,
1128 (2d Cir. 1994) (“It is well established that an amended complaint
ordinarily supersedes the original and renders it of no legal effect.”
(internal quotation marks omitted)). Piecemeal pleadings are not
permitted. See L.R. 15.1.
9 Rule 11(a) of the Federal Rules of Civil Procedure requires that “[e]very pleading
. . . must be signed . . . by a party personally if the party is unrepresented.” Fed. R.
Civ. P. 11(a). Moreover, Rule 10.1(c)(2) of the Local Rules of Practice of this District
requires that all documents submitted to the Court include the original signature of
the attorney or the pro se litigant.
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VI. 	CONCLUSION
WHEREFORE, based on the findings above, it is
ORDERED, that Parson’s motion to proceed in forma pauperis
(Dkt. 6) is GRANTED, and it is further
RECOMMENDED, that the Complaint be DISMISSED against
the Judges, including Judge Alexander, WITH PREJUDICE AND
WITHOUT LEAVE TO AMEND because any amendment would be
futile, and it is hereby further
RECOMMENDED, that the Complaint be DISMISSED against
Defendant Michelman WITH PREJUDICE AND WITHOUT LEAVE
TO AMEND because any amendment would be futile, and it is hereby
further
RECOMMENDED, that the Complaint be DISMISSED against
Defendants Simser, Healy, Raju, Perfetti, and Kyles WITH
PREJUDICE AND WITHOUT LEAVE TO AMEND because any
amendment would be futile, and it is hereby further
RECOMMENDED, that the Complaint be DISMISSED against
Defendant Monty WITH PREJUDICE AND WITHOUT LEAVE TO
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66
AMEND because any amendment would be futile, and it is hereby
further
RECOMMENDED, that the Complaint be DISMISSED against
Defendants 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, and it is hereby further
RECOMMENDED, that the Complaint be DISMISED against
Defendants Fenchel, Jarrod Smith, Melissa Smith, and Jones WITH
PREJUDICE AND WITHOUT LEAVE TO AMEND because any
amendment would be futile, and it is hereby further
RECOMMENDED, that the Complaint be DISMISED against
Defendant Cute WITH PREJUDICE AND WITHOUT LEAVE TO
AMEND because any amendment would be futile, and it is hereby
further
RECOMMENDED, that the Complaint be DISMISSED against
Defendants Lynch and Helms WITHOUT PREJUDICE AND WITH
LEAVE TO AMEND, and it is hereby further
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67
RECOMMENDED, that the Complaint be DISMISSED against
Cortland County WITHOUT PREJUDICE AND WITH LEAVE TO
AMEND, and it is hereby further
RECOMMENDED, that the Complaint be DISMISSED against
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, and it hereby further
RECOMMENDED, that Parson’s claim against Defendants
Raymond and Kiehle proceed and that a response be required, and it is
hereby further
RECOMMENDED, that the Complaint be DISMISSED against
Defendant Tyler WITHOUT PREJUDICE AND WITH LEAVE TO
AMEND, and it is hereby further
RECOMMENDED, that Parson’s claim against Defendant Clark
proceed and that a response be required, and it is hereby further
RECOMMENDED, that Parson’s claim against Defendant
Johnston proceed and that a response be required, and it is hereby
further
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68
RECOMMENDED, that the Complaint be DISMISSED against
Defendant Jobson WITHOUT PREJUDICE AND WITH LEAVE TO
AMEND, and it is hereby further
RECOMMENDED, that the Complaint be DISMISSED against
Defendant Nurse Christine (Jane Doe #46) WITHOUT PREJUDICE
AND WITH LEAVE TO AMEND, and it is hereby further
RECOMMENDED, that the Complaint be DISMISSED against
John Doe (Defendant #47 who allegedly “sexually molested [Parson]”
WITHOUT PREJUDICE AD WITH LEAVE TO AMEND, and it is
hereby further
RECOMMENDED, that the Complaint be DISMISSED against
John Doe – Elmira C.F. (Defendant #49) WITHOUT PREJUDICE
AND WITHOUT LEAVE TO AMEND¸ and it is further
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
allows, commence additional actions where each action asserts claims
that arise out of the same transactions or occurrences, limited to
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69
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:
1. 	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;
2. 	Nicholas Lynch and Mark Helms;
3. 	Cortland County Jail Officials (Dkt. 1, at 89) and “Each
Correction Officer who wrote ticket for not closing gate”
(Dkt. 1, at 96);
4. 	Adam Raymond and Thomas Kiehle;
5. 	J. Tyler only as to the failure to protect claim;
6. 	Sgt. Clark;
7. 	C.O. Johnston;
8. 	C.O. Jobson;
9. 	Nurse Christine – Jane Doe #46;
10. 	C.O. John Doe – Auburn C.F.;
11. 	Cortland County; and it is further
ORDERED, that the Clerk provide Parson with a copy of this
Order and Report-Recommendation, along with copies of the
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70
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
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(e), 72.
Dated: December 8, 2025.
___________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Brandon T. MCNAIR, Plaintiff,
v.
UTICA POLICE DEPARTMENT, et al., Defendants.
6:23-CV-699 (DNH/ATB)
|
Signed June 26, 2023
Attorneys and Law Firms
BRANDON T. McNAIR, Plaintiff, pro se.
ORDER and REPORT-RECOMMENDATION
ANDREW T. BAXTER, United States Magistrate Judge
*1 The Clerk has sent to the court for review a pro se
complaint filed by plaintiff Brandon T. McNair, in which
he has sued various defendants based on several civil rights
claims pursuant to 42 U.S.C. § 1983. (Dkt. No. 1) (“Compl.”).
Plaintiff has also moved to proceed in forma pauperis (“IFP”).
(Dkt. No. 2).
I. IFP Application
Plaintiff declares in his IFP application that he is unable to pay
the filing fee. (Dkt. No. 2). After reviewing his application
and supporting documents, this court finds that plaintiff is
financially eligible for IFP status.
However, in addition to determining whether plaintiff meets
the financial criteria to proceed IFP, the court must also
consider the sufficiency of the allegations set forth in the
complaint in light of 28 U.S.C. § 1915, which provides that
the court shall dismiss the case at any time if the court
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)(i)-(iii).
In determining whether an action is frivolous, the court
must consider whether the complaint lacks an arguable basis
in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325
(1989), abrogated on other grounds by Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007) and 28 U.S.C. § 1915.
Dismissal of frivolous actions is appropriate to prevent abuses
of court process as well as to discourage the waste of judicial
resources. Neitzke, 490 U.S. at 327; Harkins v. Eldredge,
505 F.2d 802, 804 (8th Cir. 1974). Although the court has
a duty to show liberality toward pro se litigants and must
use extreme caution in ordering sua sponte dismissal of a
pro se complaint before the adverse party has been served
and has had an opportunity to respond, the court still has a
responsibility to determine that a claim is not frivolous before
permitting a plaintiff to proceed. Fitzgerald v. First E. Seventh
St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding
that a district court may dismiss a frivolous complaint sua
sponte even when plaintiff has paid the filing fee).
To survive dismissal for failure to state a claim, the complaint
must contain sufficient factual matter, accepted as true, to
state a claim 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)). “Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citing Bell Atl.
Corp., 550 U.S. at 555).
In addition, Fed. R. Civ. P. 8(a)(2) requires that a pleading
contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.” Although Rule 8 does
not require detailed factual allegations, it does “demand[ ]
more than an unadorned, the-defendant-unlawfully-harmed-
me accusation.” Houston v. Collerman, No. 9:16-CV-1009
(BKS/ATB), 2016 WL 6267968, at *2 (N.D.N.Y. Oct. 26,
2016) (quoting Ashcroft, 556 U.S. at 678). A pleading that
contains allegations that “ ‘are so vague as to fail to give
the defendants adequate notice of the claims against them’
is subject to dismissal.” Id. (citing Sheehy v. Brown, 335 F.
App'x 102, 104 (2d Cir. 2009)). The court will now turn
to a consideration of plaintiff's complaint under the above
standards.
II. Complaint
*2 Plaintiff alleges that on July 27, 2021 at approximately
10:00 a.m., he was on the “east side” of Utica, New York
when the “cops hopped out [and] detained [him and] tried to
search [him.]” (Compl. at 4). He further alleges that, based off
a general description, the police searched plaintiff because he
was “black in a certain area where a man with a gun had been
alleged to be there.” (Id.). Plaintiff was arrested after “running
for [his] life in an attempt to keep [the police] from violating
[his] rights.” (Id.). Plaintiff was “thrown in jail” and charged
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with “possession of an instrument that was found almost an
hour after, under some car in the parking lot of a car shop.” (Id.
at 7).
Plaintiff then states that he appeared at a bail hearing in
Oneida County Court, with the defendants District Attorney
(“DA”) McNamara and Judge Michael L. Dwyer. (Compl.
at 7). Plaintiff alleges that when Judge Dwyer learned of
plaintiff's intention to post bail, he “then raised it in a clear
attempt to make it unreachable post bail reform[.]” (Id.).
Plaintiff states that he was “denied audience with the Supreme
Court and [his] habeas corpus was illegally unheard,” having
been put “right back in front of [Judge] Dwyer for him
to answer[.]” (Id.). Plaintiff claims that this is “not how
the process works,” and that Judge Dwyer “didn't have the
authority to answer [his] habeas corpus.” (Id.).
Plaintiff further alleges that Judge Dwyer and DA McNamara
proceeded to “violate [his] rights in every court proceeding
leading up to trial.” (Compl. at 7). Plaintiff cites to a decision
from the Fourth Department relative to his criminal case
for the underlying facts surrounding his claims. According
to Matter of McNair v. McNamara, plaintiff's jury trial
commenced on November 1, 2021, at which time a jury was
selected and sworn, and three witnesses testified. 206 A.D. 3d
1689, 1690 (4th Dep't 2022). November 2 nd was a holiday,
during which the trial was recessed. (Id.). On November 3 rd ,
Judge Dwyer's secretary notified plaintiff's counsel that the
Judge had a cold, wanted to make sure it was not COVID-19,
he would not be in that day, and the jury would be sent home.
(Id.). Plaintiff's counsel was notified several days later that
the matter would be scheduled for a retrial on November
15 th . (Id.). Essentially, the Judge believed a mistrial was
necessary because it was “physically impossible” for him to
come to court and proceed with the trial, while he waited
three to five days for the result of his COVID-19 test.
(Id.). Over plaintiff's counsel's objections, the mistrial was
declared as of November 3 rd . (Id.). The Fourth Department
ultimately agreed with plaintiff in concluding that there was
no “manifest necessity” for the mistrial, and that the county
court abused its discretion in granting the mistrial sua sponte.
(Id. at 1690-92). Accordingly, the government was prohibited
from retrying plaintiff on the underlying indictment based
on double jeopardy grounds. Liberally construed, this court
interprets plaintiff's claims of constitutional violations in the
instant complaint to relate to the underlying trial proceedings
as described in Matter of McNair. Plaintiff also alleges that
the police were “selective [and] omitted certain facts to
allow the proceedings to continue,” and that DA McNamara
“also did not reveal certain facts in order to secure an
indictment.” (Compl. at 7).
Plaintiff alleges damages including mental and physical
injuries sustained during his incarceration. (Compl. at 5). He
seeks monetary damages in the amount of twenty million
dollars, as well as “punitive damages of relieving the officials
of their official capacities.” (Id.).
DISCUSSION
III. Sovereign and Judicial Immunities
*3 The complaint must be dismissed as against named
defendants Oneida County Courts and Officials and Judge
Dwyer, because they are immune from suit. The Second
Circuit has ruled that “the New York State Unified Court
System is unquestionably an arm of the State, and is entitled
to Eleventh Amendment sovereign immunity.” Gollomp v.
Spitzer, 568 F.3d 355, 366 (2d Cir. 2009). Because the Oneida
County Court is a part of the New York State Unified Court
System, it is entitled to sovereign immunity. Similarly, judges
within the New York State Unified Court System are entitled
to Eleventh Amendment immunity to the extent they are sued
in their official capacity. See Aron v. Becker, 48 F. Supp.
3d 347, 366 (N.D.N.Y. 2014) (dismissing claim against a
Delaware County judge on sovereign immunity grounds). As
both the Oneida County Court and Judge Dwyer are arms of
the State, they are entitled to Eleventh Amendment immunity,
and it is recommended that the complaint against them be
dismissed with prejudice.
The complaint against Judge Dwyer in his personal capacity
is subject to dismissal on judicial immunity grounds. See,
e.g., Washington v. Ciccone, No. 3:21-CV-0564 (MAD/ML),
2021 WL 2935950, at *4 (N.D.N.Y. July 13, 2021) (Judicial
immunity “shields judges from suit to the extent they are sued
in their individual capacities[.]”), report and recommendation
adopted, 2021 WL 4859663 (N.D.N.Y. Oct. 19, 2021). It is
well settled that judges have absolutely immunity for their
judicial acts performed in their judicial capacities. See Mireles
v. Waco, 502 U.S. 9, 11 (1991); Forrester v. White, 484 U.S.
219, 225 (1988); Shtrauch v. Dowd, 651 F. App'x 72, 73-74
(2d Cir. 2016) (“Generally, ‘acts arising out of, or related
to, individual cases before the judge are considered judicial
in nature’ ”) (quoting Bliven v. Hunt, 579 F.3d 204, 210
(2d Cir. 2009)); Kim v. Saccento, No. 21-2865, 2022 WL
9583756, at *2 (2d Cir. Oct. 17, 2022), cert. denied, No.
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22-732, 2023 WL 2959393 (U.S. Apr. 17, 2023) (“the actions
that [plaintiff] complains of – adverse decisions in a criminal
proceeding – are plainly judicial in nature”); Root v. Liston,
444 F.3d 127, 132 (2d Cir. 2006) (judges who set bail enjoy
absolute immunity) (collecting cases). “Judicial immunity
applies even when the judge is accused of acting maliciously
or corruptly.” Coon v. Merola, No. 1:19-CV-394 (DNH/ATB),
2019 WL 1981416, at *3 (N.D.N.Y. Apr. 8, 2019) (citing
Imbler v. Pachtman, 424 U.S. 409, 419 n.12 (1976)), report
and recommendation adopted, 2019 WL 1978595 (N.D.N.Y.
May 3, 2019).
“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).
Here, plaintiff has failed to plausibly allege that Judge Dwyer
was acting outside of his judicial capacity or in the absence
of jurisdiction. To the extent that plaintiff alleges that his
habeas corpus petition was not properly before Judge Dwyer,
Article 70 of the New York Civil Practice Law and Rules
specifically authorizes a petition for the writ to be made
to a county judge being or residing within the county in
which the petitioner is detained. N.Y. C.P.L.R. § 7002(b)(4).
In the absence of any other allegation suggesting that the
general rule regarding judicial immunity can be overcome, the
court recommends dismissing with prejudice the complaint
as against Judge Dwyer in his individual capacity. See
Edwardsen v. Aloi, No. 5:17-CV-00202 (LEK/TWD), 2017
WL 1283496, at *3 (N.D.N.Y. Mar. 3, 2017) (recommending
dismissal with prejudice on judicial immunity grounds),
report and recommendation adopted, 2017 WL 1283763
(N.D.N.Y. Apr. 5, 2017).
Plaintiff has also included unidentified “officials” of the
Oneida County Court as defendants in the caption of his
complaint. There is, however, no specific allegation anywhere
in the complaint referencing any other court official who was
involved in the alleged violations of plaintiff's constitutional
rights. In any event, even if plaintiff had identified another
court “official” as a defendant, judicial immunity has been
extended to “ ‘certain others who perform functions closely
associated with the judicial process.’ ” Marshall v. New York
State Pub. High Sch. Athletic Ass'n, Inc., 374 F. Supp. 3d
276, 288 (W.D.N.Y. 2019) (quoting inter alia Cleavinger v.
Saxner, 474 U.S. 193, 200 (1985)). Quasi-judicial immunity
is absolute if the official's role “is ‘functionally comparable’
to that of a judge.” Butz v. Economou, 438 U.S. 478,
513 (1978); see Cleavinger, 474 U.S. at 201 (“Absolute
immunity flows not from rank or title or location within
the Government, but from the nature of the responsibilities
of the individual official.” (internal quotation marks and
citation omitted)); Gross v. Rell, 585 F.3d 72, 81 (2d
Cir. 2009) (“Judicial and quasi-judicial immunity are both
absolute immunities.” (citations omitted)). Much like judicial
immunity, “[a] defendant entitled to quasi-judicial immunity
loses that privilege only if [he or] she acts in the clear absence
of all jurisdiction.” Finn v. Anderson, 592 F. App'x 16, 19
(2d Cir. 2014) (internal quotation marks and citation omitted).
Thus, it is likely that the unidentified court official defendants
would also be protected from suit based on the doctrine of
quasi-judicial immunity.
IV. Prosecutorial Immunity
*4 The complaint is also subject to dismissal as against
DA McNamara. The doctrine of absolute immunity applies
broadly to shield a prosecutor from liability for money
damages (but not injunctive relief) in a § 1983 lawsuit, even
when the result may be that a wronged plaintiff is left without
an immediate remedy.” Anilao v. Spota, 27 F.4th 855, 863-64
(2d Cir. 2022) (citing Imbler v. Pachtman, 424 U.S. 409, 427
(1976)). In Anilao, the Second Circuit explained:
Our cases make clear that 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, 361
(2d Cir. 1987)(quotation marks omitted). The immunity
covers “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)
(quoting Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994)).
For example, a prosecutor enjoys absolute immunity
when determining which offenses to charge, initiating a
prosecution, presenting a case to a grand jury, and preparing
for trial. See id.; Imbler, 424 U.S. at 431, 96 S. Ct. 984
(concluding that a prosecutor is absolutely immune from
a § 1983 suit for damages based on his “initiating a
prosecution and ... presenting the State's case”). For that
reason, we have held that absolute immunity extends even
to a prosecutor who “conspir[es] to present false evidence
at a criminal trial. The fact that such a conspiracy is
certainly not something that is properly within the role of a
prosecutor is immaterial, because the immunity attaches to
his function, not to the manner in which he performed it.”
Dory, 25 F.3d at 83 (cleaned up).
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Id. at 864. See also Pinaud v. County of Suffolk, 52 F.3d
1139, 1149 (2d Cir. 1995) (holding that absolute prosecutorial
immunity protects a prosecutor for advocacy in connection
with a bail application).
“By contrast, prosecutors receive only qualified immunity
when performing ‘administrative duties and those
investigatory functions that do not relate to an advocate's
preparation for the initiation of a prosecution or for judicial
proceedings.’ ” Simon v. City of New York, 727 F.3d 167,
172 (2d Cir. 2013) (quoting Buckley v. Fitzsimmons, 509
U.S. 259, 273 (1993)). “Investigation, arrest, and detention
have historically and by precedent been regarded as the
work of police, not prosecutors, and they do not become
prosecutorial functions merely because a prosecutor has
chosen to participate.” Id. (interior quotation marks and
citations omitted); see Giraldo v. Kessler, 694 F.3d 161,
166 (2d Cir. 2012) (“ ‘[A]ctions taken as an investigator
enjoy only qualified immunity.’ ”) (quoting Zahrey v. Coffey,
221 F.3d 342, 346 (2d Cir. 2000)). “Under a functional
approach, actions are not shielded by absolute immunity
merely because they are performed by a prosecutor. ‘A
prosecutor's administrative duties and those investigatory
functions that do not relate to an advocate's preparation for
the initiation of a prosecution or for judicial proceedings are
not entitled to absolute immunity.’ ” Giraldo, 694 F.3d at 166
(quoting Buckley, 509 U.S. at 273).
Liberally construed, in this case plaintiff alleges that DA
McNamara violated his rights by “hold[ing] plaintiff in an
attempt to retry [him] illegally for 7 months” after the mistrial
(Compl. at 7), and for failing to “reveal certain facts in order
to secure an indictment” (id.). Otherwise, plaintiff generally
alleges that DA McNamara violated his rights “in every
court proceeding leading up to trial[,] “in the trial [and]
after the first trial[.]” (Id.). With respect to the indictment,
the courts have long held that a prosecutor's determination
to bring charges against an individual by presentment of a
case to the grand jury is an act by an advocate intimately
related to the judicial phase of the criminal process to
which absolute prosecutorial immunity applies. See Bernard
v. County of Suffolk, 356 F.3d 495, 503 (2d Cir. 2004)
(The act of “knowingly presenting false evidence to, while
at the same time withholding exculpatory evidence from
[the grand jury] ... lie[s] at the very core of a prosecutor's
role as an advocate engaged in the judicial phase of the
criminal process.”) (citing Imbler, 424 U.S. at 431 & n.
34); Pinaud v. County of Suffolk, 52 F.3d at 1149 (holding
district attorneys absolutely immune from claim for malicious
prosecution and presentation of false evidence to the grand
jury); Maglione v. Briggs, 748 F.2d 116, 118 (2d Cir. 1984)
(“The presentation of a case to a grand jury falls squarely
within the prosecutor's traditional function and is thus subject
to absolute immunity....”); J. & W. Trading & Leasing Inc. v.
New York, No. 5:15-CV-327 (GLS/DEP), 2015 WL 4135961,
at *3 (N.D.N.Y. 2015) (granting absolute immunity where
prosecutor allegedly presented false testimony before grand
jury). Accordingly, plaintiff may not pursue his § 1983 action
against DA McNamara based on his alleged failure to disclose
evidence to the grand jury.
*5 The court concludes that DA McNamara is also immune
from any suit by plaintiff based on his efforts to continue
the prosecution of plaintiff's criminal case, although there
is certainly less case law involving this scenario. Bearing
in mind the standard of determining whether the specific
conduct at issue is ‘intimately associated with the judicial
phase of the criminal process,’ the court cannot conclude
that DA McNamara's efforts to retry plaintiff's case after
Judge Dwyer granted a mistrial runs afoul of the prosecutor's
protected function of initiating a prosecution and presenting
the State's case. See, e.g., Davis v. State of N.Y., No. 90
Civ. 6170, 1991 WL 156351, at *6 (S.D.N.Y. Aug. 6, 1991)
(whatever the defendant prosecutors may have done to delay
plaintiff's criminal retrial, “they acted in their capacity as
advocates in the state's prosecution ... [and] are entitled to
absolute immunity ....”), aff'd sub nom. Davis v. New York,
106 F. App'x 82 (2d Cir. 2004); Russo v. Vermont, No. 1:10-
CV-296, 2011 WL 4537956, at *6, 8 (D. Vt. July 29, 2011)
(notwithstanding the plaintiff's claim that the prosecutors in
his case were “obsessed and won't let go[,]” their decision
“to proceed with a retrial ... is protected by prosecutorial
immunity”), report and recommendation adopted, 2011 WL
4566303 (D. Vt. Sept. 29, 2011).
There is no evidence that DA McNamara's conduct in this
regard fell outside the scope of his function as an advocate.
See Anilao, 27 F.4th at 865 (“ ‘[A]bsolute immunity must be
denied’ only where there is both the absence of all authority
(because, for example, no statute authorizes the prosecutor's
conduct) and the absence of any doubt that the challenged
action falls well outside the scope of prosecutorial authority....
Prosecutors thus have absolute immunity in a § 1983 action ...
so long as ‘they have at least a semblance of jurisdiction’
that does not run far afield of their job description.’ ”)
(citations omitted). In particular, there is no suggestion that
DA McNamara's conduct in this respect could be interpreted
as an “investigative or administrative task[ ]”, for which the
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prosecutor would only be eligible for qualified immunity. Van
de Kamp v. Goldstein, 555 U.S. 335, 342 (2009) (quoting
Imbler, 424 U.S. at 431 n.33); see also McDonough v. Smith,
No. 1:15-CV-1505 (MAD/DJS), 2022 WL 3279348, at *17
(N.D.N.Y. Aug. 11, 2022) (“Investigative tasks beyond the
scope of absolute immunity are those ‘normally performed
by a detective or police officer.’ ”) (quoting Buckley, 509
U.S. at 273); Moye v. City of New York, 11 Civ. 316,
2012 WL 2569085, at *6 (S.D.N.Y. July 3, 2012) (“[T]he
Second Circuit has distinguished between ‘preparing for
the presentation of an existing case,’ on the one hand,
and attempting to ‘furnish evidence on which a prosecution
could be based,’ on the other hand, with only the former
entitling a prosecutor to absolute immunity.”) (quoting Smith
v. Garretto, 147 F.3d 91, 94 (2d Cir. 1998)). Accordingly,
the complaint should be dismissed as against DA McNamara
based on his absolute prosecutorial immunity.
V. Defendant Utica Police Department
“Although a municipality is subject to suit pursuant to section
1983, see Monell v. Dep't of Soc. Servs., 436 U.S. 658,
690 (1978), a municipal police department does not have
the capacity to be sued as an entity separate from the
municipality in which it is located.” White v. Syracuse Police
Dep't, No. 5:18-CV-1471(GTS/DEP), 2019 WL 981850, at
*1 (N.D.N.Y. Jan. 7, 2019), report and recommendation
adopted, 2019 WL 974824 (N.D.N.Y. Feb. 28, 2019) (citing
Krug v. Cnty. of Rennselaer, 559 F. Supp. 2d 223, 247
(N.D.N.Y. 2008)); see also Turczyn ex rel. McGregor v. City
of Utica, No. 13-CV-1357 (GLS/ATB), 2014 WL 6685476, at
*2 (N.D.N.Y. Nov. 26, 2014). Accordingly, the complaint as
against defendant Utica Police Department must be dismissed
for failure to state a claim upon which relief may be granted.
Even if the court were to construe plaintiff's claims against
the Utica Police Department as against the City of Utica,
dismissal would still be warranted. A municipality may only
be named as a defendant in certain circumstances. Pursuant
to the standard for establishing municipal liability laid out in
Monell, in order to set forth a cognizable claim for municipal
liability under Section 1983, a plaintiff must plead and prove
that a deprivation of his constitutional rights “was caused by
a governmental custom, policy, or usage of the municipality.”
Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012)
(citing Monell, 436 U.S. 658); see also Vippolis v. Vill. of
Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (“The plaintiff
must first prove the existence of a municipal policy or
custom in order to show that the municipality took some
action that caused his injuries beyond merely employing the
misbehaving officer.”).
*6 A municipality may be liable for deprivation of
constitutional rights under Section 1983 for policies or
customs resulting in inadequate training, supervision, or
hiring when the failure to train, supervise, or hire amounts
to deliberate indifference to the rights of those with whom
municipal employees will come into contact. See City of
Canton, Ohio v. Harris, 489 U.S. 378, 388-89 (1989).
A plaintiff must also establish a causal connection - an
affirmative link - between the policy and the deprivation
of his constitutional rights. Oklahoma v. Tuttle, 471 U.S.
808, 823 (1985). Indeed, municipalities may only be held
liable when the municipality itself deprives an individual of
a constitutional right; it “may not be held liable on a theory
of respondeat superior.” Jeffes v. Barnes, 208 F.3d 49, 56 (2d
Cir. 2000).
“[A] prerequisite to municipal liability under Monell is an
underlying constitutional violation by a state actor.” Henry-
Lee v. City of New York, 746 F. Supp. 2d 546, 567 (S.D.N.Y.
2010). As the Second Circuit has noted, “Monell does not
provide a separate cause of action for the failure by the
government to train its employees; it extends liability to a
municipal organization where that organization's failure to
train, or the policies or customs that it has sanctioned, led
to an independent constitutional violation.” Segal v. City
of New York, 459 F.3d 207, 219 (2d Cir. 2006); see also
id. (noting that once a “district court properly [finds] no
underlying constitutional violation, its decision not to address
the municipal defendants’ liability under Monell [is] entirely
correct”).
In this case, plaintiff has (1) not identified any of the
Utica police officers who allegedly violated his constitutional
rights as defendants in this action, and (2) has offered no
evidence that any such officer was acting pursuant to a policy
or custom of the City when they detained and/or arrested
plaintiff, or throughout the course of plaintiff's criminal
proceeding. Accordingly, the City cannot be held liable for
plaintiff's allegations of false arrest/imprisonment, malicious
prosecution or unspecified due process violations, as stated in
the complaint.
VI. Eighth Amendment Cruel and Unusual Punishment
Plaintiff has alleged an Eighth Amendment claim of cruel
and unusual punishment. (Compl. at 7-8). Plaintiff does
not specify against whom he alleges this violation of his
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constitutional rights. (Id.). In any event, these protections of
the Eighth Amendment “only apply to a person who has been
criminally convicted and sentenced; they do not apply to the
conduct of police officers in connection with the investigation
and arrest of suspects prior to conviction and sentencing.”
Spicer v. Burden, 564 F. Supp. 3d 22, 31 (D. Conn. 2021)
(citing Whitley v. Albers, 475 U.S. 312, 318-19 (1986)); City
of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).
Accordingly, any claim purportedly brought by plaintiff under
the Eighth Amendment for cruel and unusual punishment
must be dismissed.
VII. Opportunity to Amend
Generally, before the court dismisses a pro se complaint or
any part of the complaint sua sponte, the court should afford
the plaintiff the opportunity to amend at least once; however,
leave to re-plead may be denied where any amendment would
be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131
(2d Cir. 1993). Futility is present when the problem with
plaintiff's causes of action is substantive such that better
pleading will not cure it. Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000) (citation omitted).
Here, the court is recommending dismissal with prejudice
as to defendant Utica Police Department, because the
department may not be sued under § 1983. The court is further
recommending dismissal with prejudice as to defendants
Judge Dwyer, the Oneida County Courts and Officials, and
DA McNamara, based on their absolute immunity from suit.
*7 Notwithstanding my recommendation that each of the
named defendants be dismissed with prejudice, the court
cannot say at this early stage of the litigation that plaintiff
would be unable to amend his complaint to state a viable
claim. Thus, the court recommends providing plaintiff the
opportunity to amend his complaint for the limited purpose
of asserting those claims alleging constitutional violations
surrounding his detention, arrest, and subsequent criminal
prosecution as set forth in his complaint, against the
appropriate defendants. Plaintiff is reminded that if he intends
to name the City of Utica as a defendant, he must plead,
and ultimately prove, that a deprivation of his constitutional
rights was caused by a custom, policy, or usage of the
municipality. Likewise, plaintiff must specifically identify
any individual law enforcement officer he is alleging violated
his constitutional rights. If plaintiff chooses to amend his
complaint, he must also specifically set forth the personal
involvement of each named defendant relative to the conduct
alleged to have violated his constitutional rights.
If the court approves this recommendation and allows plaintiff
to submit a proposed amended complaint, plaintiff should be
warned that any amended complaint must be a complete and
separate pleading. Plaintiff must state all of his claims in the
new pleading and may not incorporate by reference any part
of his original complaint.
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff's motion to proceed IFP (Dkt. No.
2) is GRANTED, 1 and it is
1 Although his IFP Application has been granted,
plaintiff will still be required to pay fees that he
may incur in this action, including copying and/or
witness fees.
RECOMMENDED, that this action be DISMISSED
WITH PREJUDICE as against named defendants
UTICA POLICE DEPARTMENT, JUDGE MICHAEL L.
DWYER, ONEIDA COUNTY COURTS a/k/a/ ONEIDA
COUNTY COURTS AND OFFICIALS, and DISTRICT
ATTORNEY SCOTT McNAMARA, and it is
RECOMMENDED, that plaintiff's complaint otherwise be
DISMISSED WITHOUT PREJUDICE, and that, if the
District Court adopts this recommendation, plaintiff be given
forty-five (45) days to amend his complaint to the extent
authorized, and that plaintiff be advised that any amended
pleading must be a COMPLETE PLEADING, WHICH
WILL SUPERSEDE THE ORIGINAL, and that plaintiff
must include all remaining facts and causes of action in the
amended complaint. No facts or claims from the original
complaint may be incorporated by reference, and it is
RECOMMENDED, that if the District Court adopts this
recommendation, and plaintiff does not elect to amend his
complaint within the imposed deadline, the case be dismissed
in its entirety, with prejudice, and it is
RECOMMENDED, that if the District Court adopts this
recommendation, and plaintiff files a proposed amended
complaint, the proposed amended complaint be returned to
me for review of the amended complaint and any orders
relating to service on the defendants, and it is
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ORDERED, that the Clerk of the Court serve a copy of this
Order and Report-Recommendation on plaintiff by regular
mail.
Pursuant to 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. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health
and Hum. Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
All Citations
Not Reported in Fed. Supp., 2023 WL 4935993
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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McNair v. Utica Police Department
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 6:23-CV-00699
McNair v. Utica Police Department et al
— N.D.N.Y. June 12, 2023 Docket
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McNair v. Utica Police Department
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History (2)
Direct History (2)
1. McNair v. Utica Police Department
2023 WL 4935993 , N.D.N.Y. , June 26, 2023
Report and Recommendation Adopted by
2. McNair v. Utica Police Department
2023 WL 4931609 , N.D.N.Y. , Aug. 01, 2023
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McNair v. Utica Police Department
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McNair v. Utica Police Department, Not Reported in Fed. Supp. (2023)
2023 WL 4931609
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 4931609
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Brandon T. MCNAIR, Plaintiff,
v.
UTICA POLICE DEPARTMENT et al., Defendants.
6:23-CV-699
|
Signed August 1, 2023
Attorneys and Law Firms
BRANDON T. MCNAIR, Plaintiff, Pro Se, 421 Margaret
Street, Herkimer, NY 13350.
ORDER ON REPORT & RECOMMENDATION
DAVID N. HURD, United States District Judge
*1 On June 12, 2023, pro se plaintiff Brandon T. McNair
(“plaintiff”) filed this 42 U.S.C. § 1983 action alleging that
various defendants violated his civil rights. Dkt. No. 1. Along
with his complaint, plaintiff also sought leave to proceed in
forma pauperis (“IFP Application”). Dkt. No. 2.
On June 26, 2023, U.S. Magistrate Judge Andrew T. Baxter
granted plaintiff's IFP application and advised by Report
& Recommendation (“R&R”) that plaintiff's complaint be
dismissed with partial leave to amend. Dkt. No. 4. As
Judge Baxter explained, plaintiff's claims against defendants
Utica Police Department, Judge Michael L. Dwyer, Oneida
County Courts, and District Attorney Scott McNamara
must be dismissed with prejudice because those defendants
were shielded from plaintiff's claims by various immunity
doctrines. Id. However, Judge Baxter concluded that plaintiff
might still be able to assert a viable claim, or perhaps
claims, for “alleged constitutional violations surrounding his
detention, arrest, and subsequent criminal prosecution as set
forth in his complaint, against the appropriate defendants.” Id.
Plaintiff has not filed objections. The time period in which to
do so has expired. See Dkt. No. 4. Upon review for clear error,
the R&R is accepted and will be adopted in all respects. See
FED. R. CIV. P. 72(b).
Therefore, it is
ORDERED that
1. The Report & Recommendation is ACCEPTED;
2. Plaintiff's complaint is DISMISSED with prejudice against
defendants Utica Police Department, Judge Michael L.
Dwyer, Oneida County Courts a/k/a Oneida County Courts
and Officials, and District Attorney Scott McNamara;
3. Plaintiff's complaint is otherwise DISMISSED without
prejudice;
4. Plaintiff shall have forty-five days in which to file
an amended complaint that conforms with the instructions
set forth in Judge Baxter's June 26, 2023 Report &
Recommendation;
5. If plaintiff files an amended complaint within this forty-
five-day period, the matter shall be REFERRED to Judge
Baxter for further review and any other action as appropriate;
and
6. If plaintiff does not file an amended complaint within this
forty-five-day period, the Clerk of the Court is directed to
close this action without further Order of this Court.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 4931609
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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McNair v. Utica Police Department
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 6:23-CV-00699
McNair v. Utica Police Department et al
— N.D.N.Y. June 12, 2023 Docket
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 82 of 529

McNair v. Utica Police Department
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (2)
1. McNair v. Utica Police Department
2023 WL 4935993 , N.D.N.Y. , June 26, 2023
Report and Recommendation Adopted by
2. McNair v. Utica Police Department
2023 WL 4931609 , N.D.N.Y. , Aug. 01, 2023
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McNair v. Utica Police Department
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Coon v. Merola, Not Reported in Fed. Supp. (2019)
2019 WL 1981416
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 1981416
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Donald James COON, Plaintiff,
v.
Frank MEROLA, et al., Defendants.
1:19-CV-394 (DNH/ATB)
|
Signed 04/08/2019
Attorneys and Law Firms
Donald James Coon, Troy, NY, pro se.
ORDER and REPORT-RECOMMENDATION
Hon. Andrew T. Baxter, U.S. Magistrate Judge
*1 The Clerk has sent to the Court a civil rights complaint
filed by pro se plaintiff Donald James Coon, together with a
motion to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 2).
I. In Forma Pauperis (“IFP”) Application
A review of plaintiff's IFP application shows that he declares
he is unable to pay the filing fee. (Dkt. No. 2). The court finds
for purposes of this recommendation, that plaintiff meets the
financial criteria for IFP status.
In addition to determining whether plaintiff meets the
financial criteria to proceed IFP, the court must also consider
the sufficiency of the allegations set forth in the complaint
in light of 28 U.S.C. § 1915, which provides that the court
shall dismiss the case at any time if the court 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)(i)-(iii).
In determining whether an action is frivolous, the court must
consider whether the complaint lacks an arguable basis in
law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Dismissal of frivolous actions is appropriate to prevent abuses
of court process as well as to discourage the waste of judicial
resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505
F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to
show liberality toward pro se litigants, and must use extreme
caution in ordering sua sponte dismissal of a pro se complaint
before the adverse party has been served and has had an
opportunity to respond, the court still has a responsibility
to determine that a claim is not frivolous before permitting
a plaintiff to proceed. Fitzgerald v. First East Seventh St.
Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that
a district court may dismiss a frivolous complaint sua sponte
even when plaintiff has paid the filing fee).
To survive dismissal for failure to state a claim, the complaint
must contain sufficient factual matter, accepted as true, to
state a claim that is “plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. (citing Bell
Atl. Corp., 550 U.S. at 555). The court will now turn to
a consideration of the plaintiff's complaint under the above
standards.
II. Complaint
Although plaintiff's complaint is very conclusory, a liberal
reading of the allegations contained therein show that plaintiff
is attempting to allege that the Rensselaer County Clerk and
his John/Jane Doe Deputy Clerks have violated plaintiff's
constitutional rights in connection with a state court law suit
that plaintiff has attempted to bring. (Complaint (“Compl.”)
generally) (Dkt. No. 1). In order to understand plaintiff's
allegations in this action, the court must discuss another
action filed by this plaintiff in 2016. In 2016, plaintiff
filed a federal action in this court in which he named
a variety of defendants, including Police Chief George
Bell, the Villages of Cambridge and Greenwich, various
district attorneys, Claverack Insurance Company, Glens Falls
Hospital, Washington County Child Protective Services, and
a police officer. Coon v. Bell, No. 1:16-CV-291 (TJM/DJS).
*2 After initial review of plaintiff's complaint in Coon v.
Bell, Magistrate Judge Daniel Stewart found that plaintiff
failed to state claims against the defendants and recommended
that he be allowed to file an amended complaint in
an effort to cure the deficiencies in the original. (Dkt.
No. 8 in 16-CV-291). United States District Court Judge
Thomas J. McAvoy adopted Magistrate Judge Stewart's
recommendation on May 23, 2016. (Dkt. No. 11 in 16-
CV-291). Plaintiff complied with the court's direction and
filed an amended complaint on May 23, 2016. (Dkt. No. 12
in 16-CV-291).
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Magistrate Judge Stewart conducted an initial review of the
amended complaint and found that plaintiff failed to cure
most of the deficiencies that were in the original. (Dkt. No.
13 in 16-CV-291). Magistrate Judge Stewart recommended
dismissing most of the claims and most of the defendants
from the action, while allowing a Fourth Amendment illegal
search claim and Fourth Amendment excessive force claim
to proceed against defendant Bell. 1 (Dkt. No. 13 in 16-
CV-291). Magistrate Judge Stewart's recommendation was
adopted by Judge McAvoy on November 2, 2016. (Dkt. No.
16 in 16-CV-291).
1 Defendant Bell has since passed away, and his
estate's representative has been substituted as a
party. (Dkt. Nos. 52, 71). Another defendant was
joined to 16-CV-291, and there have been various
other proceedings in that case, but those details are
not relevant to this action.
In Magistrate Judge Stewart's report and recommendation,
he found that plaintiff's defamation claims against defendant
Bell and his attempted contract claims against defendant Bell
and Claverack Insurance Company were, at best, state law
claims. 2 (Dkt. No. 13 in 16-CV-291 at 4). Plaintiff then
states that he “filed said claims” in the Rensselaer County
Supreme Court. (Compl. at 1). Plaintiff states that in 2017,
Judge Andrew G. Ceresia granted plaintiff poor person status,
but that when he went to the Rensselaer County Clerk's office,
defendant Merola told plaintiff that Judge Ceresia's order was
“no good and they wouldn't honor it.” (Compl. at 2). Plaintiff
states that he brought Judge Ceresia's order to the Clerk's
office four more times, and “finally” on March 11, 2019, a
clerk that plaintiff had never seen before stamped the Judge's
order and kept a copy. (Id.)
2 Although plaintiff states in this action that
Magistrate Judge Stewart told plaintiff that the
contract and defamation claims “needed to be
refiled in Supreme Court,” that is not exactly
what Magistrate Judge Stewart said. His exact
words were that “[l]iberally construed, plaintiff
might be attempting to make state law defamation
and intentional interference with a contract
claims. Again, however, Plaintiff's vague and
conclusory allegations fail to plausibly state
such claims.” (Dkt. No. 13 in 16-CV-291 at 4)
(emphasis added). The court merely notes this for
the record. Magistrate Judge Stewart's dismissal
and his language are not relevant to the findings
herein.
Plaintiff alleges that he has been denied his “rightful benefits
and access to the court.” Plaintiff states that he even had “to
choose between the suit or my housing,” and that he was
homeless from January 12, 2018 until April 24, 2018. (Id.)
Plaintiff states that the Rensselaer County Supreme Court
wrote plaintiff “2 times the County Clerk's staff made me pay
for RJI motion I had already paid for. They told me to give
letter [sic] to the Clerk and I would get my monies back.” (Id.)
Plaintiff states that he is seeking “just compensation” for the
Rensselaer County Clerks' actions who refused to recognize
his “poor person status” from 2017 until 2019. Plaintiff
states that he still has not “received anything” from the
“grant[ed] status” because the Clerks refused to grant “my
said status.” (Id.) Plaintiff seeks substantial monetary relief.
(Id.)
III. Judicial Immunity
A. Legal Standards
*3 With minor exceptions, judges are entitled to absolute
immunity for actions relating to the exercise of their judicial
functions. Mireles v. Waco, 502 U.S. 9, 9-10 (1991). 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.” 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. Imbler v. Pachtman, 424 U.S. 409, 419 n.12
(1976) (citing Pierson v. Ray, 386 U.S. 547, 554 (1967)).
Judicial immunity is immunity from suit, not just immunity
from the assessment of damages. 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.” Mireles, 502 U.S. at 11-12.
Absolute immunity extends to court clerks who perform
tasks “ ‘which are judicial in nature and an integral part of
the judicial process.’ ” Proctor v. Quinn, No. 19-CV-833,
2019 WL 692935, at *2 (E.D.N.Y. Feb. 19, 2019) (quoting
Rodriguez v. Weprin, 116 F.3d 62, 66 (2d Cir. 1997)). The
court's “ ‘inherent power to control its docket is part of
its function of resolving disputes between parties’ and is
thus ‘a function for which judges and their supporting staff
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are afforded absolute immunity.’ ” Id. (quoting Rodriguez,
116 F.3d at 66); and citing Pikulin v. Gonzalez, No. 07-
CV-0412 (CBA), 2007 WL 1063353, at *2 (E.D.N.Y. Apr.
5, 2007) (finding that absolute judicial immunity extends to
“the Clerk's Office activities of filing and docketing legal
documents”). However, a court clerk may not be entitled to
absolute immunity where the clerk's refusal to accept the
papers of a litigant seeking to commence an action results in
the deprivation of the individual's constitutional rights. Glass
v. New York Supreme Court Appellate Division, No. 1:17-
CV-226, 2017 WL 9487181, at *3 (N.D.N.Y. Apr. 26, 2017)
(citations omitted).
In determining whether the clerk's conduct in a particular
case is “judicial” in nature, the court takes a “functional
approach” and allows the defendant absolute immunity when
the clerk is performing a “discretionary act, or performing a
duty that inherently relates to resolving a dispute.” Vance v.
State of New York Dep't of Corrections, No. 9:18-CV-748,
2018 WL 6047828, at *10 (N.D.N.Y. Nov. 19, 2018) (quoting
Dzwonczyk v. Suddaby, No. 10-CV-0300, 2010 WL 1704722,
at *6 (N.D.N.Y. Apr. 28, 2010) (citing Rodriguez, 116 F.3d at
67) (internal quotation marks omitted)).
B. Application
Plaintiff's statements in this case are conclusory and
essentially, he is suing the “clerks” because they would not
file his poor person status order between 2017 and 2019. At
best, he alleges a delay in granting him poor person status
because it appears that a clerk finally took and filed plaintiff's
order, and at the end of his complaint, plaintiff alleges that he
“still” has not “received a thing or any help from the granyted
[sic] status.” (Compl. at 2) (emphasis added). It is unclear
what plaintiff believes he should have “received” or to what
“help” he thinks he is entitled from the clerks beyond filing
his order.
It is also unclear how plaintiff alleges that he was denied
“access to courts” because he states that he filed his state law
claims in the Rensselaer County Supreme Court. (Compl. at
1). However, he claims he was denied his “rightful benefits,”
and that somehow the clerk's actions in delaying the filing
of his poor person order were related to his homelessness
between January 12, 2018 and April 24, 2018. Plaintiff claims
that he had to choose between “the suit” or his housing, but
he does not explain why this is true or why this would be a
denial of his constitutional rights. Plaintiff also states that the
clerks made plaintiff pay for his RJI “motion,” but that he was
told that if he wrote a letter, he would get his money back.
*4 As it is written, plaintiff's complaint is too conclusory
to state a claim against any of the clerks in this action,
whether named or unnamed, 3 and the court will recommend
dismissal.
3 Finally, the court must note that the United States
Marshal would not be able to effect service of
process on a “John or Jane Doe” defendant. In
order for plaintiff to pursue his claims against John
Doe defendants, he would ultimately be required
to ascertain their identity. LaPoint v. Vasiloff, No.
5:15-CV-185, 2015 WL 1524437, at *4 (N.D.N.Y.
Apr. 2, 2015).
IV. Opportunity to Amend
A. Legal Standards
Generally, when the court dismisses a pro se complaint sua
sponte, the court should afford the plaintiff the opportunity
to amend at least once; however, leave to re-plead may be
denied where any amendment would be futile. Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993).
B. Application
In this case, the court will recommend dismissal without
prejudice, even though the court has serious doubts that
plaintiff will be able to amend his complaint to state a
claim. However, because there are situations in which a
clerk would not be entitled to absolute immunity, and
plaintiff in this case has failed to include enough facts
for the court to make an accurate determination, the court
will recommend dismissal without prejudice to plaintiff
submitting an amended complaint.
If the court adopts this recommendation, and plaintiff is
afforded the opportunity to amend, he should be afforded
forty-five (45) days from the date of the order adopting this
court's recommendation. Plaintiff should also be advised that
if he files an amended complaint, it must be a complete
pleading which must supercede the original and may not
incorporate any facts from the original by reference.
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiff's motion to proceed IFP (Dkt. No.
2) be GRANTED for purposes of filing, and it is further
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Coon v. Merola, Not Reported in Fed. Supp. (2019)
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RECOMMENDED, that the complaint be DISMISSED
based on quasi-judicial immunity and for failure to state
a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii)
WITHOUT PREJUDICE to plaintiff filing an amended
complaint, and it is
RECOMMENDED, that if the District Court adopts this
recommendation, plaintiff be directed to file his amended
complaint or ask for an extension of time to do so within
FORTY-FIVE (45) DAYS from the date of the District
Court's order adopting the recommendation, and it is
RECOMMENDED, that if plaintiff files an amended
complaint within the appropriate time, the court return the
proposed amended complaint to me for initial review, and it is
RECOMMENDED, that if the court adopts this
recommendation, and plaintiff fails to file an amended
complaint or ask for an extension of time to do so at the
expiration of the forty-five (45) days, the complaint be
dismissed with prejudice and the case closed, and it is
ORDERED, that the Clerk of the Court serve a copy of this
Order and Report-Recommendation on plaintiff by regular
mail.
Pursuant to 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. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993)(citing Small v. Secretary of
Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
All Citations
Not Reported in Fed. Supp., 2019 WL 1981416
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Coon v. Merola
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Filings (1)
Title PDF Court Date Type
1. Docket 1:19-CV-00394
Coon v. Merola et al
— N.D.N.Y. Apr. 03, 2019 Docket
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Coon v. Merola
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History (2)
Direct History (2)
1. Coon v. Merola
2019 WL 1981416 , N.D.N.Y. , Apr. 08, 2019
Report and Recommendation Adopted by
2. Coon v. Merola
2019 WL 1978595 , N.D.N.Y. , May 03, 2019
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2024 WL 5247710
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Louis E. SERRANO III, Plaintiff,
v.
Anthony DIPERNA, et al., Defendants.
24-CV-483-LJV
|
Signed December 30, 2024
Attorneys and Law Firms
Louis E. Serrano, III, Rochester, NY, Pro Se.
ORDER
LAWRENCE J. VILARDO, UNITED STATES DISTRICT
JUDGE
*1 The pro se plaintiff, Louis E. Serrano III, was a prisoner
confined at the Monroe County Jail when he filed this action.
He asserts claims under 42 U.S.C. § 1983 related to his
criminal proceedings pending in New York State Supreme
Court, Monroe County. Docket Item 1. He also has moved to
proceed in forma pauperis (“IFP”)—that is, as a person who
should have the prepayment of the ordinary filing fee waived
because he cannot afford it. 1 Docket Item 4.
1 Serrano initially filed his complaint without paying
the required fees or moving to proceed IFP. So
on May 23, 2024, this Court ordered the case
administratively terminated and informed Serrano
that if he wished to reopen the action, he was
required either to pay the fees or submit a properly
supported IFP motion. Docket Item 2. Serrano then
timely moved to proceed IFP. Docket Item 4.
Because Serrano meets the statutory requirements of 28
U.S.C. § 1915(a) and has filed the required authorization and
certification, Docket Item 4, the Court grants his motion to
proceed in forma pauperis. Therefore, under 28 U.S.C. §§
1915(e)(2)(B) and 1915A(a), the Court screens the complaint.
For the reasons that follow, some of Serrano's claims are
dismissed under sections 1915(e)(2)(B) and 1915A, and
the remaining claims will be dismissed under those same
sections unless he files an amended complaint correcting the
deficiencies addressed below.
DISCUSSION
Section 1915 “provide[s] an efficient means by which a court
can screen for and dismiss legally insufficient claims.” Abbas
v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (citing Shakur v.
Selsky, 391 F.3d 106, 112 (2d Cir. 2004)). The court shall
dismiss a complaint in a civil action in which a prisoner seeks
redress from a governmental entity, or an officer or employee
of a governmental entity, if the court determines that the
complaint (1) fails to state a claim upon which relief may be
granted or (2) seeks monetary relief against a defendant who
is immune from such relief. See 28 U.S.C. § 1915A(b)(1)-(2).
Generally, the court will afford a pro se plaintiff an
opportunity to amend or to be heard prior to dismissal “unless
the court can rule out any possibility, however unlikely it
might be, that an amended complaint would succeed in stating
a claim.” Abbas, 480 F.3d at 639 (quoting Gomez v. USAA
Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)); see also
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (“A pro
se complaint is to be read liberally. Certainly the 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.” (italics omitted) (quoting
Gomez, 171 F.3d at 795)). But leave to amend pleadings may
be denied when any amendment would be “futile.” Cuoco,
222 F.3d at 112.
I. SCREENING THE COMPLAINT
In evaluating the complaint, the court accepts all factual
allegations as true and draws all inferences in the plaintiff's
favor. See Larkin v. Savage, 318 F.3d 138, 139 (2d Cir. 2003)
(per curiam); King v. Simpson, 189 F.3d 284, 287 (2d Cir.
1999). Although “a court is obliged to construe [pro se]
pleadings liberally, particularly when they allege civil rights
violations,” McEachin v. McGuinnis, 357 F.3d 197, 200 (2d
Cir. 2004), even a pro se complaint “must plead ‘enough facts
to state a claim to relief that is plausible on its face,’ ” Shibeshi
v. City of New York, 475 F. App'x 807, 808 (2d Cir. 2012)
(summary order) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim will have ‘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. (quoting Ashcroft v. Iqbal,
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556 U.S. 662, 678 (2009)). In other words, although a pro
se complaint need not provide every last detail in support
of a claim, it must allege some facts that support the claim.
See id. (concluding that district court properly dismissed pro
se complaint under section 1915(e)(2) because complaint did
not meet pleading standard in Twombly and Iqbal). And even
pro se pleadings must meet the notice requirements of Rule
8 of the Federal Rules of Civil Procedure, see Wynder v.
McMahon, 360 F.3d 73, 79 n.11 (2d Cir. 2004), and “give the
defendant fair notice of what the ... claim is and the grounds
upon which it rests,” Erickson v. Pardus, 551 U.S. 89, 93
(2007) (alteration in original) (quoting Twombly, 550 U.S. at
555).
*2 Serrano has sued New York State Supreme Court
Justice Charles A. Schiano Jr. and Monroe County Assistant
District Attorney Anthony DiPerna 2 for violating his Fifth,
Eighth, and Fourteenth Amendment rights, including his right
to a speedy trial and to be free from cruel and unusual
punishment. 3 Docket Item 1 at 1-3. 4 A liberal reading of the
complaint tells the following story.
2 Serrano's complaint incorrectly fails to capitalize
the third letter of DiPerna's last name. See Docket
Item 1 at 1.
3 Serrano refers to “Judge” Schiano and does not
clearly identify the court in which the latter sits. See
Docket Item 1 at 2. This Court nonetheless takes
judicial notice of Justice Schiano's official title and
position. See Blair v. Iliou, 2024 WL 1532257, at *2
n.2 (E.D.N.Y. Apr. 8, 2024) (taking judicial notice
of judge's official title).
4 Page numbers in docket citations refer to
ECF pagination. Throughout this order, some
capitalization has been omitted when quoting from
the complaint.
Sometime around March 2022, Serrano was “false[ly]
accus[ed]” of a crime, and criminal proceedings were initiated
against him in New York State Supreme Court, Monroe
County. See id. at 2, 7. The case has been prosecuted, at least
in part, by DiPerna and presided over by Justice Schiano. 5
See id. at 1-2, 4-5. And the two men have acted “in c[a]hoots”
to “malicious[ly] pros[e]cut[e]” Serrano and deny his right to
“due process” and a “speedy trial.” Id. at 4.
5 Serrano gives very few details about his criminal
prosecution; indeed, while he says that the events
that give rise to his claims occurred on March
30, 2022, it is unclear whether he refers to the
date when charges were filed, when one of the
court proceedings at issue took place, or some
other date. See Docket Item 1 at 3-7. Somewhat
similarly, Serrano seems to suggest that prosecutors
other than DiPerna also were involved in his
case, but he does not say who they were or what
they did. Id. at 4; see generally id. The exact
timeline—and the identities and precise actions
of the prosecutors involved—are irrelevant to this
Court's analysis, however. Indeed, for the reasons
that follow, none of the allegations related to any
prosecutor survive prosecutorial immunity, at least
as currently pleaded. See supra Section II.B.2.b.
More specifically, Serrano was incarcerated for more than six
months before the prosecutor even obtained an indictment
against him. Id. at 4. For that reason, he should have
been released upon the expiration of “the [six-]month time
period,” 6 but the District Attorney's office “m[a]nipulated
the court time[ ]lines by repeatedly switching [district
attorneys].” Id. Moreover, Justice Schiano repeatedly allowed
the prosecution to “postpon[e]” the criminal proceedings
while “ignor[ing Serrano's] motions” seeking to vindicate his
rights. Id. at 4-5, 7. In fact, Serrano says, Justice Schiano had
previously sentenced him to probation and thus is “bias[ed]”
against him. Id. at 4. So Serrano remains detained at Monroe
County Jail pending trial. Id. at 5 (indicating that Serrano is
a “[p]retrial detainee”).
6 Under section 30.30 of New York State's Criminal
Procedure Law, a defendant may move to dismiss
the charges against him if “the [government is]
not ready for trial within ... six months of the
commencement of a criminal action” in which at
least one of the charges is a felony. See N.Y. Crim
Proc. Law § 30.30(1); see also Murphy v. Lynn, 118
F.3d 938, 942 (2d Cir. 1997) (“Under New York's
speedy[ ]trial statute, the prosecution [i]s required
to be ready for trial within six months after the
filing of the first accusatory instrument [charging
the defendant with a felony].”). This Court assumes
that Serrano's argument that he should have been
released is grounded in that statute.
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*3 Serrano asks “to be relieved of th[e] false accusation”
against him and to be released from incarceration. Id. at 7. He
also seeks $376,800 in damages. Id. at 6.
II. SECTION 1983 CLAIMS
“To state a valid claim under 42 U.S.C. § 1983, the plaintiff
must allege that the challenged conduct (1) was attributable
to a person acting under color of state law, and (2) deprived
the plaintiff of a right, privilege, or immunity secured by
the Constitution or laws of the United States.” Whalen v.
County of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing
Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)).
“Section 1983 itself creates no substantive rights; it provides
only a procedure for redress for the deprivation of rights
established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d
Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S.
808, 816 (1985)).
A. Claims for Dismissal of Charges and Release from
Custody
This Court first considers Serrano's request for an order
dismissing the charges against him and releasing him from
detention. See id. at 7. “Th[e Supreme Court] has held that a
prisoner in state custody cannot use a [section] 1983 action
to challenge ‘the fact or duration of his confinement.’ ”
Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (quoting Preiser
v. Rodriguez, 411 U.S. 475, 489 (1973)); see Hickman v.
McDonnell, 2024 WL 4635462, at *2 (S.D.N.Y. Oct. 28,
2024) (explaining that plaintiff could not “seek[ ] release
from his pretrial incarceration [or the] dismissal of the
[state] charges against him” in a “civil rights action” under
section 1983). Instead, individuals seeking to challenge their
state detention “must seek federal habeas corpus relief (or
appropriate state relief).” Wilkinson, 544 U.S. at 78. “For
those individuals who have yet to be sentenced, a petition
brought under 28 U.S.C. § 2241 is the proper vehicle for
challenging the constitutionality of pretrial detention.” Slade
v. United States, 2024 WL 3797383, at *4 (S.D.N.Y. Aug. 6,
2024).
Serrano thus cannot seek release or the dismissal of the
charges against him in this section 1983 action. See Hickman,
2024 WL 4635462, at *2. Further, because Serrano alleges
no “facts suggesting that he has exhausted his state court
remedies,” as is required to seek federal habeas relief, this
Court “declines to recharacterize [his] allegations ... as a
[habeas] petition” under section 2241. See Slade, 2024 WL
3797383, at *5. Therefore, insofar as Serrano seeks his release
and the dismissal of the state charges against him, his claims
are dismissed. And because amendment of those claims—at
least in this section 1983 action—would be “futile,” those
claims are dismissed without leave to amend. 7 Cuoco, 222
F.3d at 112.
7 If Serrano's current custody continues—and once
he has exhausted his state court remedies—“he may
return to federal court” to “file a petition for a writ
of habeas corpus in the appropriate venue.” See
Slade, 2024 WL 3797383, at *5 (italics omitted).
Serrano is advised, however, that section 2241
provides “a narrow window for a state detainee
to challenge his pretrial detention” and “cannot be
used to ‘permit the derailment of a pending state
proceeding by an attempt to litigate constitutional
defenses prematurely in federal court.’ ” Burns v.
Valhalla, 2023 WL 7301394, at *2 (S.D.N.Y. Nov.
6, 2023) (quoting Braden v. 30th Jud. Cir. Ct.,
410 U.S. 484, 493 (1973)), appeal dismissed No.
24-1364 (2d Cir. Sept. 11, 2024).
B. Damage Claims
*4 Section 1983 suits can be brought against government
officials in both their official and individual capacities. As the
Second Circuit has explained, “[i]n an official capacity suit,
‘the real party in interest is the governmental entity and not
the named official.’ ” Tanvir v. Tanzin, 894 F.3d 449, 459 (2d
Cir. 2018) (alteration omitted) (quoting Hafer v. Melo, 502
U.S. 21, 25 (1991)), aff'd, 592 U.S. 43 (2020). “By contrast,
individual capacity suits ‘seek to impose individual liability
upon [ ] government officer[s] for actions under color of law.’
” Id. (alterations omitted) (quoting Hafer, 502 U.S. at 25).
Here, Serrano sues Justice Schiano and Assistant District
Attorney DiPerna in only their official capacities. See Docket
Item 1 at 2. But in light of its obligation to construe pro
se pleadings “liberally,” see Cuoco, 222 F.3d at 112—and
because, for the reasons explained below, Serrano's official
capacity claims are barred by sovereign immunity—the
Court construes his complaint as asserting claims against the
defendants in both their official and individual capacities.
1. Official Capacity Claims
“The Eleventh Amendment bars damage[ ] actions in federal
court against a state and against state officials acting in
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their official capacities, unless the state waives sovereign
immunity or Congress abrogates it.” Chris H. v. New York,
740 F. App'x 740, 741 (2d Cir. 2018) (summary order). “New
York has not waived its sovereign immunity in federal court
for actions seeking damages” under section 1983, “[n]or has
Congress abrogated [it].” Id. (first citing Trotman v. Palisades
Interstate Park Comm'n, 557 F.2d 35, 39-40 (2d Cir. 1977);
and then citing Dube v. State Univ. of N.Y., 900 F.2d 587, 594
(2d Cir. 1990)); see also Huminski v. Corsones, 396 F.3d 53,
70 (2d Cir. 2005) (explaining that “[n]either a [s]tate nor its
officials acting in their official capacities are ‘persons’ under
[section] 1983” (quoting Will v. Mich. Dep't of State Police,
491 U.S. 58, 71 (1989))).
In this case, the Eleventh Amendment bars Serrano's official
capacity claims for damages against both defendants. First,
because a state court justice clearly is a state official, Serrano
cannot seek damages from Justice Schiano in his official
capacity. See Curto v. Siwek, 2007 WL 9777896, at *3
(W.D.N.Y. Feb. 12, 2007) (Eleventh Amendment prohibited
plaintiff from suing New York State Supreme Court justice
for damages in her official capacity), aff'd, 322 F. App'x 62
(2d Cir. 2009) (summary order). And second, while DiPerna
is a Monroe County assistant district attorney, he is deemed
to be an agent of the state in matters like this one.
“Whether a defendant is a state or local official depends
on whether the defendant represented a state or a local
government entity when engaged in the events at issue.”
Huminski, 396 F.3d at 70 (citing McMillian v. Monroe County,
520 U.S. 781, 785-86 (1997)). “It is well established that New
York prosecutors act on behalf of the state, not the county
in which they serve, when prosecuting a criminal matter.”
See Schnitter v. City of Rochester, 556 F. App'x 5, 9 n.4 (2d
Cir. 2014) (summary order) (citing Baez v. Hennessy, 853
F.2d 73, 77 (2d Cir. 1988)). “Thus, if ... an assistant district
attorney acts as a prosecutor, [ ]he is an agent of the [s]tate,
and therefore immune from suit in h[is] official capacity.” 8
D'Alessandro v. City of New York, 713 F. App'x 1, 8 (2d Cir.
2017) (summary order).
8 In contrast, if a suit “centers ‘on the administration
of the district attorney's office’—that is, on
the ‘office policy’ that the district attorney
sets—then the district attorney is ‘considered
a municipal policymaker,’ and the Eleventh
Amendment does not immunize [that official] from
suit.” D'Alessandro v. City of New York, 713 F.
App'x 1, 8 (2d Cir. 2017) (summary order) (quoting
Ying Jing Gan v. City of New York, 996 F.2d
522, 536 (2d Cir. 1993)). But Serrano's complaint
includes no such claims: It alleges only that the
prosecutors involved in his criminal case violated
his rights in the course of those proceedings. See
Docket Item 1; see also infra Section II.B.2.b.
*5 Serrano's claims against DiPerna relate solely to
DiPerna's role in prosecuting Serrano's criminal case. See
Docket Item 1; see also infra Section II.B.2.b. Thus, with
respect to all of Serrano's claims against DiPerna in his official
capacity, DiPerna was acting as an “agent of the state” and
is immune from any damage claim. See D'Alessandro, 713 F.
App'x at 8.
In sum, because Serrano's damage claims against Justice
Schiano and Assistant District Attorney DiPerna in their
official capacities are barred by sovereign immunity, those
claims are subject to dismissal. And because “better pleading
w[ould] not cure” that defect, they are dismissed without
leave to amend. Cuoco, 222 F.3d at 112.
2. Individual Capacity Claims
Unlike official capacity claims, individual capacity claims
for damages against state officials are not barred by the
Eleventh Amendment. Nonetheless, for the reasons explained
below, immunity of a different sort—judicial or prosecutorial
immunity—bars Serrano's individual capacity claims as
pleaded.
a. Judicial Immunity
“It is well settled that judges generally have absolute
immunity from suits for money damages for their judicial
actions.” Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009).
This is to ensure “that a judicial officer, in exercising the
authority vested in [that judge], shall be free to act upon [the
judge's] own convictions, without apprehension of personal
consequences.” Bradley v. Fisher, 80 U.S. 335, 347 (1871).
Judicial immunity therefore does not give way even to
“allegations of bad faith or malice.” Mireles v. Waco, 502 U.S.
9, 11 (1991).
Judicial “immunity is overcome in only two sets of
circumstances.” Id. “First, a judge is not immune from
liability for nonjudicial actions, i.e., actions not taken in the
judge's judicial capacity.” Id. (citations and italics omitted).
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“Second, a judge is not immune for actions, though judicial
in nature, taken in the complete absence of all jurisdiction.”
Id. at 12 (citations omitted).
Here, Serrano's claims relate to Justice Schiano's alleged
conduct and decisions while presiding over Serrano's state
prosecution. See Docket Item 1. Serrano says that Justice
Schiano violated his constitutional rights by granting the
government's motions for adjournments while ignoring
Serrano's motions. Id. at 4-5, 7. And he says that Justice
Schiano was “bias[ed]” against him because the justice had
sentenced him in a previous case, implicitly asserting that
Justice Schiano violated Serrano's rights by failing to recuse
himself. See id. at 4, 7.
“The Supreme Court has generally concluded that acts arising
out of, or related to, individual cases before the judge are
considered judicial in nature.” Bliven, 579 F.3d at 210.
Further, courts have held that judges’ decisions on motions—
even motions to recuse—are indisputably judicial in nature.
See Buhannic v. Friedman, 2019 WL 481732, at *5 (S.D.N.Y.
Feb. 7, 2019) (ruling on motions is a “quintessential judicial
act[ ]”); Moskovits v. Bank of Am. N.A., 2021 WL 230193, at
*4 (S.D.N.Y. Jan. 20, 2021) (“[A] judge's decision to recuse
or not to recuse himself is itself a judicial act protected by
immunity.” (citing Bobrowsky v. Yonkers Courthouse, 777
F. Supp. 2d 692, 714 (S.D.N.Y. 2011))). And the fact that
Serrano says Justice Schiano's conduct deprived him of his
speedy trial rights—or any other rights—does not make that
conduct any less judicial. See Coombs v. United States, 2021
WL 2453496, at *2-3 (S.D.N.Y. June 15, 2021) (judge's
issuance of orders excluding time under federal Speedy Trial
Act during Covid-19 pandemic, which plaintiff said deprived
him of his speedy trial rights, were judicial acts protected by
judicial immunity).
*6 Serrano's allegations that Justice Schiano has conspired
with prosecutors and is “bias[ed]” against him, see Docket
Item 1 at 4-5, 7, do not change this analysis. For one thing,
his claims are largely conclusory: Serrano says that Justice
Schiano acted “in c[a]hoots” with the prosecutors to violate
his rights, but he does not provide any facts to support this
claim other than Justice Schiano's apparently granting the
government's motions while “ignor[ing]” Serrano's. 9 See id.
at 4-5. Such conduct clearly is “judicial” and thus protected
by absolute judicial immunity. Bobrowsky, 777 F. Supp. 2d
at 715 (holding that judge's “rulings[, even though] adverse
to plaintiff, [we]re the very essence of ‘judicial functions’
and [could]not, therefore, be the basis for liability” (citation
omitted)). And even “[m]ore fundamentally, since absolute
immunity spares [judges] any scrutiny of [their] motives, an
allegation that an act was done pursuant to a conspiracy has no
greater effect than an allegation that it was done in bad faith
or with malice, neither of which defeats a claim of absolute
immunity.” See Dorman v. Higgins, 821 F.2d 133, 139 (2d
Cir. 1987).
9 Serrano also says that Justice Schiano had
sentenced him to probation in a previous case. See
Docket Item 1 at 4. But he does not explain why that
shows that the judge is “biased”: Indeed, judges
frequently hear cases involving defendants who
may have appeared before them previously.
Serrano does allege that Justice Schiano “lack[ed]
jurisdiction” to allow the government to continue to prosecute
the case against him “after the [six-]month time period ...
allot[t]ed” the government “to bring forth indictment” had
elapsed. See Docket Item 1 at 4. But that does not mean
that Justice Schiano acted “in the complete absence of all
jurisdiction.” See Mireles, 502 U.S. at 12. As the Supreme
Court has explained, there is a difference between a judge who
acts in “excess of jurisdiction” and one who acts in “the clear
absence of all jurisdiction over the subject[ ]matter.” Stump
v. Sparkman, 435 U.S. 349, 356-57, 356 n.6 (1978) (quoting
Bradley, 435 U.S. at 351-52). Only in the second situation is
the judge “deprived of [judicial] immunity.” Id. at 356-57. In
Stump, the Court provided an example to illustrate the point:
If a probate judge, with jurisdiction
over only wills and estates, should try a
criminal case, he would be acting in the
clear absence of jurisdiction and would
not be immune from liability for his
action; on the other hand, if a judge
of a criminal court should convict a
defendant of a nonexistent crime, he
would merely be acting in excess of his
jurisdiction and would be immune.
Id. at 357 n.7 (citing Bradley, 435 U.S. at 352).
Here, Serrano asserts constitutional violations based on a state
criminal case. Docket Item 1. The New York State Supreme
Court—which is a court of “general jurisdiction”—certainly
has jurisdiction over such cases. See Muka v. Murphy, 358
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F. App'x 239, 240 (2d Cir. 2009) (summary order); Bramble
v. Hynes, 2024 WL 4309231, at *1, *5 (E.D.N.Y. Sept. 26,
2024) (New York State Supreme Court justices did not act
in “the clear absence of all jurisdiction” in presiding over
plaintiff's criminal proceedings). Indeed, Serrano does not say
that Justice Schiano erred in exercising jurisdiction over the
case in the first place; rather, he says that the justice erred in
not dismissing it based on the government's delay. See Docket
Item 1 at 4-5, 7. In other words, his allegations—at most
—suggest that Justice Schiano exceeded his jurisdiction or
exercised his authority “error[neously]” or “maliciously.” See
Stump, 435 U.S. at 356. And such allegations do not overcome
judicial immunity. See id.
Serrano's damage claims against Justice Schiano in his
individual capacity therefore are subject to dismissal because
of absolute judicial immunity. And because “better pleading
w[ould] not cure” that defect, those claims are dismissed
without leave to amend. Cuoco, 222 F.3d at 112.
b. Prosecutorial Immunity
Like judges, prosecutors are absolutely immune from suit,
and that immunity “appl[ies] with full force” to activities
that are “intimately associated with the judicial phase of the
criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430
(1976). Prosecutorial immunity
*7 encompasses not only
[prosecutors’] conduct of trials but
all of their activities that can fairly
be characterized as closely associated
with the conduct of litigation
or potential litigation, including
presentation of evidence to a grand
jury to initiate a prosecution, activities
in deciding not to do so, and conduct
of plea bargaining negotiations.
Barrett v. United States, 798 F.2d 565, 571-72 (2d Cir.
1986) (internal citations omitted); see also Ogunkoya v.
Monaghan, 913 F.3d 64, 72 (2d Cir. 2019) (holding that
prosecutors had absolute immunity for acts that “constituted
an exercise of their prosecutorial discretion in preparing a
case for indictment and deciding when, where, and how to
prosecute”).
But that immunity does not include “those aspects of the
prosecutor's responsibility that cast him in the role of an
administrator or investigative officer rather than that of
advocate.” Warney v. Monroe County, 587 F.3d 113, 121 (2d
Cir. 2009) (quoting Imbler, 424 U.S. at 430-31). Likewise,
a prosecutor who “proceeds in the clear absence of all
jurisdiction” is not shielded by immunity. Shmueli v. City of
New York, 424 F.3d 231, 237 (2d Cir. 2005) (quoting Barr
v. Abrams, 810 F.2d 358, 361 (2d Cir. 1987)). “The relevant
question, therefore, is whether a reasonable prosecutor would
view the acts challenged by the complaint as reasonably
within the functions of a prosecutor.” Giraldo v. Kessler,
694 F.3d 161, 166 (2d Cir. 2012). “If the generic acts are
within those functions, absolute immunity applies to protect
the prosecutor even in the face of a complaint's allegations of
malicious or corrupt intent behind the acts.” Id.
Serrano says that DiPerna violated his rights by conspiring
with the judge to seek “postpon[e]ments,” thus violating
Serrano's right to a speedy trial. Docket Item 1 at
4. He further asserts that the District Attorney's office
“m[a]nipulated ... court time[ ]lines by repeatedly switching
[district attorneys].” Id.
Such conduct is “closely associated with the conduct of
litigation or potential litigation.” See Barrett, 798 F.2d at
571-72; see also Gadreault v. Bent, 2022 WL 943669, at *6
(D. Vt. Mar. 3, 2022) (holding that prosecutors were immune
from suit for “[a]ny actions that they allegedly undertook
in connection with [plaintiff's] prosecution—including their
alleged delay of [his] trial—[because those actions were]
within the ambit of their prosecutorial duties”), report and
recommendation adopted, 2022 WL 910927 (D. Vt. Mar.
29, 2022). Absolute prosecutorial immunity therefore applies
with “full force” here. See Imbler, 424 U.S. at 430.
Serrano also argues that the defendants’ deprivation of his
speedy trial rights divested the District Attorney's office
of jurisdiction to prosecute him. Docket Item 1 at 4. But
that does not mean that DiPerna (or any prosecutor) acted
“in the clear absence of all jurisdiction” so as to defeat
prosecutorial immunity. See Schmueli, 424 F.3d at 237.
As the Second Circuit has explained, “[i]n considering
whether a given prosecution was clearly beyond the scope
of th[e prosecutor's] jurisdiction,” courts “inquire whether
the pertinent statutes may have authorized prosecution for
the charged conduct.” Id. Serrano does not allege facts
suggesting that no statute authorizes prosecution for the crime
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with which he was charged; instead, he asserts that the
prosecution has been conducted in a way that violates his
rights. See Docket Item 1. Such allegations do not overcome
prosecutorial immunity, and Serrano's conclusory allegations
that DiPerna conspired with Justice Schiano do not change
the calculus. 10 See Schmueli, 424 F.3d at 237-38 (noting
that prosecutorial immunity is “not affected by allegations
that improperly motivated prosecutions were commenced or
continued pursuant to a conspiracy”); see also supra Section
II.B.2.a.
10 Serrano does say—without providing any
additional details—that the “accusation” against
him is “false.” Docket Item 1 at 7. But he
does not say that the law he was accused of
violating does not exist or does not authorize
criminal charges. See id. And claims that an
assistant district attorney maliciously prosecuted
a defendant despite knowing he was innocent do
not overcome prosecutorial immunity. See Shmueli,
424 F.3d at 238-39.
*8 For those reasons, Serrano's claims against DiPerna, as
asserted in the complaint, are subject to dismissal. But in
light of Serrano's pro se status, see Tracy v. Freshwater, 623
F.3d 90, 101-02 (2d Cir. 2010), the Court grants him leave
to amend his complaint to assert a section 1983 claim that
challenges DiPerna's or some other prosecutor's actions as an
administrator or investigative officer, see Warney, 587 F.3d at
121, or that otherwise survives prosecutorial immunity.
3. Claims against Serrano's Defense Attorney
Serrano names only Justice Schiano and Assistant District
Attorney DiPerna as defendants. Docket Item 1 at 1-2. But he
also alleges that his defense attorney “is not doing his job.”
Id. at 10.
Criminal defense attorneys—whether public defenders,
court-appointed attorneys, or privately retained counsel—
are not persons acting under color of state law “when
performing a lawyer's traditional functions as counsel to a
defendant in a criminal proceeding.” See Polk County v.
Dodson, 454 U.S. 312, 325 (1981); O'Donoghue v. Soc. Sec.
Admin., 828 F. App'x 784, 787 (2d Cir. 2020) (summary
order) (“Private attorneys are generally not state actors for
purposes of [section] 1983.” (citation and internal quotation
marks omitted)); Murdock v. Legal Aid Soc'y, 2015 WL
94245, at *2 (E.D.N.Y. Jan. 6, 2015) (“It is well settled that
defense attorneys, even if they are court-appointed or are
public defenders, do not act under color of state law when
performing traditional functions of counsel.”). But defense
attorneys do “act ‘under color of’ state law for [section]
1983 purposes” when they are “willful participant[s] in joint
action with the [st]tate or its agents.” See Dennis v. Sparks,
449 U.S. 24, 27-28 (1980) (citations omitted); McCloud v.
Jackson, 4 F. App'x 7, 9-10 (2d Cir. 2001) (summary order)
(holding that defense counsel was not liable under section
1983 “because there was no showing that he [conspired or
otherwise] worked with state officials to deprive [plaintiff] of
federal rights” (citation omitted)).
To the extent that Serrano asserts a claim against his defense
attorney, it is only for actions the attorney allegedly took—
or failed to take—during his criminal case. See Docket Item
1 at 10. Serrano does not allege that his defense attorney
worked with Assistant District Attorney DiPerna or any other
government official to deprive him of his rights. See id. 10. In
fact, he says only that the attorney “is not doing his job.” Id.
Serrano therefore has not plausibly alleged that his defense
attorney was a state actor.
For those reasons, any claims against Serrano's defense
attorney are subject to dismissal. But in light of Serrano's pro
se status, see Tracy, 623 F.3d at 101-02, he may name his
defense attorney as a defendant in any amended complaint
and allege facts explaining why that attorney was a state actor
with respect to the challenged conduct.
ORDER
In light of the above, IT IS HEREBY
ORDERED that Serrano's motion to proceed in forma
pauperis, Docket Item 4, is GRANTED; and it is further
ORDERED that Serrano's claims for the dismissal of charges
and his release; his official capacity claims; and his individual
capacity claims against Justice Schiano are dismissed, and
the Clerk of the Court shall terminate Justice Schiano as a
defendant to this action; and it is further
ORDERED that Serrano may amend his complaint within 45
days of the date of this order; and it is further
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*9 ORDERED that the Clerk of the Court shall send to
Serrano with this order a copy of the original complaint, a
blank section 1983 complaint form, and the instructions for
preparing an amended complaint; and it is further
ORDERED that if Serrano does not file an amended
complaint correcting the deficiencies noted above within
45 days of the date of this order, the complaint will be
dismissed without further order and the Clerk of the Court
shall close the case; and it is further
ORDERED that this Court hereby certifies, pursuant to 28
U.S.C. § 1915(a)(3), that any appeal from this order would
not be taken in good faith and leave to appeal to the Court
of Appeals in forma pauperis is denied. Coppedge v. United
States, 369 U.S. 438 (1962). Further requests to proceed on
appeal in forma pauperis should be directed, on motion, to
the United States Court of Appeals for the Second Circuit, in
accordance with Rule 24 of the Federal Rules of Appellate
Procedure; and it is further
ORDERED that Serrano shall notify the Court in writing if his
address changes. The Court may dismiss the action if Serrano
fails to do so.
SO ORDERED.
All Citations
Slip Copy, 2024 WL 5247710
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Title PDF Court Date Type
1. Docket 1:24-CV-00483
Serrano v. Diperna et al
— W.D.N.Y. May 20, 2024 Docket
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Bey v. New York, Not Reported in F.Supp.2d (2012)
2012 WL 4370272
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2012 WL 4370272
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Malcolm BEY, Francique Bey, Rein Bey,
Drizzle Bey, Truth Bey, and Amicus Curiae
Bey, in propia persona, sui juris, Plaintiffs,
v.
State of NEW YORK, Nassau County Inc., Nassau
County Family Court, Nassau County Child Protective
Services, Edmund Dane, Suzanne Leahey, Elizabeth
Mcgrath, rosalie fitzgerald, john Coppola, Alton
Williams, David Sullivan, Kathleen Rice, David Gotimer,
Bruce Cohen, Merry–Lou Ferro, Cheryl Kreger, Warren
Freeman, and Jane Doe/John Doe 1–100, Defendants.
No. 11–CV–3296 (JS)(WDW).
|
Sept. 21, 2012.
Attorneys and Law Firms
Malcolm Bey, Francique Bey, Rein Bey, Drizzle Bey, Truth
Bey, Amicus Curiae Bey, Uniondale, NY, pro se.
Ralph Pernick, Esq., N.Y.S. Attorney General's Office,
Mineola, NY, for Defendants N.Y.S. Defendants.
Liora M. Ben–Sorek, Esq., Nassau County Attorney's Office,
Mineola, NY, for Defendants County Defendants.
Adam Daniel Levine, Esq., Matthew K. Flanagan, Esq.,
Catalano, Gallardo & Petropoulous, LLP, Jericho, NY, for
Defendant Bruce Cohen, Esq.
Jessica Zimmerman, Esq., Marian C. Rice, Esq., L'Abbate,
Balkan, Colavita & Contini LLP, Garden City, NY, for
Defendant Cheryl Kreger, Esq.
MEMORANDUM & ORDER
SEYBERT, District Judge.
*1 Presently pending before the Court are the following
motions: (1) Plaintiff Malcolm Bey's (“Mr.Bey”) motions
to “set aside and vacate” this Court's Order dated July 28,
2011 (Docket Entries 19, 27); (2) Mr. Bey's motion for a
default judgment (Docket Entry 39); (3) a motion to dismiss
the claims against Defendants State of New York, Nassau
County Family Court, Judge Edmund Dane, Judge David
Sullivan, Rosalie Fitzgerald, and John Coppola (the “State
Defendants”) (Docket Entry 25); (4) a motion to dismiss
the claims against Bruce Cohen (Docket Entry 29); and (5)
motions to dismiss the claims against Cheryl Kreger (Docket
Entries 18, 32). 1 For the following reasons, Mr. Bey's
motions to vacate and for a default judgment are DENIED and
the motions to dismiss are GRANTED (with the exception of
Defendant Kreger's letter-motion at Docket Entry 18, which
is DENIED AS MOOT).
1 There is also a motion pending at Docket Entry
23. This is not a motion, however, but rather an
opposition to Plaintiffs' motion to vacate. The Clerk
of the Court is directed to terminate the motion and
amend the docket entry to reflect that it is a “Letter
in Opposition” to Docket Entry 19.
BACKGROUND
The Plaintiffs in this action are Mr. Bey; his wife, Francique
Bey (“Mrs.Bey”), and their minor children, Rein Bey, Drizzle
Bey, Truth Bey, and Amicus Curiae Bey (the “Bey Children”).
Mr. Bey commenced this action pro se, on behalf of himself,
his wife, and his children against Nassau County, Inc. [sic],
Nassau County Child Protective Services (“CPS”), Suzanne
Leahey, Elizabeth McGrath, Alton Williams, Nassau County
District Attorney Kathleen Rice, David Gotimer, Merry–
Lou Ferro, and Warren Freeman (collectively, the “County
Defendants”), the State Defendants, Mr. Cohen, and Ms.
Kreger arising out of petitions for child neglect that were
filed in Nassau County Family Court in 2009 and 2010.
The Court will briefly summarize the facts as stated in the
Complaint-which are presumed to be true for the purposes of
this Memorandum and Order-that are relevant to the pending
motions.
On or around June 4, 2009, the Bey Children were questioned
at school by CPS regarding suspected child abuse occurring
in the Bey home. (Compl.¶ 26.) The Bey Children were later
taken to the police station for further questioning. (Compl.¶
26.) Mrs. Bey was arrested, and the Bey Children returned
home with their father. (Compl.¶ 26.) The following day,
however, the Bey Children were removed from the home and
placed in foster care (Compl.¶¶ 27, 31), and on or around June
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9, 2009 petitions for neglect were filed with the Family Court
against Mr. and Mrs. Bey. (Compl.¶ 31).
Shortly thereafter, CPS inspected the Bey home and, after
finding it habitable for the Bey Children, returned them to
their father. (Compl.¶ 32.) A temporary restraining order
was issued against Mrs. Bey, however, and she was only
allowed supervised visitation with her children. (Compl.¶ 32.)
She was ordered to take parenting and anger management
classes. (Compl.¶ 34.) During this time, Mr. Bey “lost work”
because he could not afford daycare, and he and his family
were eventually evicted from their home. (Compl.¶ 35.) In
December 2009, the neglect petition against Mr. Bey was
withdrawn. (Compl.¶ 36.)
*2 In April 2010, a new neglect petition was filed and a
temporary restraining order issued against Mr. Bey. (Compl.¶
37.) During the next few months, the Bey Children were
repeatedly questioned by CPS at school and visited by CPS
twice a month at home. (Compl.¶ 39.) On June 7, 2010,
Mr. Bey attempted to file an “objection and counterclaim”
in Family Court, but Defendant Coppola, the Family Court's
Deputy Chief Clerk, refused to file it. (Compl.¶ 40.) Mr. Bey
was able to successfully file it, however, a few days later.
(Compl.¶ 41.)
Mr. Bey returned to Family Court several times during the
next few months for appearances before Judge Dane related
to the neglect petition. (Compl.¶ 42.) 2 The proceedings were
repeatedly adjourned, and Mr. Bey eventually told Judge
Dane that he would not be returning to court. (Compl.¶ 42.)
Judge Dane warned him that failure to appear would result in
a warrant being issued for his arrest. (Compl.¶ 42.)
2 It appears as though Judge Dane presided over Mr.
Bey's neglect proceedings. It is unclear what role,
if any, Judge Sullivan had in these proceedings.
On October 19, 2010, Mr. Bey went to the Family Court to
file papers and bumped into his court-appointed attorney, Mr.
Cohen, leaving Judge Dane's chambers. (Compl.¶ 44.) Mr.
Cohen advised him that he had missed a court appearance that
morning before Judge Dane and that it had been rescheduled
for 2:00PM. (Compl.¶ 44.) When Mr. Bey returned that
afternoon, however, he was arrested for failing to appear that
morning and incarcerated. (Compl.¶ 44.)
In January 2011, Judge Dane extended the temporary
restraining order issued against Mr. Bey and ordered that he
be mentally evaluated. (Compl.¶ 45.) Mr. Bey returned to
court on March 15, 2011 for trial. CPS asked Mr. Bey to
turn custody of the Bey Children over to CPS for one year,
but Mr. Bey refused and his trial was adjourned to April
29, 2011. (Compl.¶¶ 46.48.) Around the same time, Mr. Bey
requested copies of “everything in the court file.” (Compl.¶
47.) Defendants Fitzgerald, the Family Court's Chief Clerk,
and Coppola gave him some documents but not others.
(Compl.¶ 47.) Mr. Bey returned to court on April 29 and
was asked to turn over custody of his children to CPS for
six months, but he again refused. (Compl.¶ 49.) His trial
was adjourned to May 13, 2011. (Compl.¶ 49.) On that date,
he was again asked to give CPS custody of his children.
(Compl.¶ 50.) This time, Ms. Kreger, the Bey Children's
appointed law guardian, “attempt[ed] to coerce” him to agree
to it, but he again refused. (Compl.¶ 50.) The trial was
rescheduled to June 8, 2011 (Compl.¶ 51), and on June 15,
2011, Ms. Kreger spoke with the Bey Children at school about
the alleged neglect (Compl.¶ 52).
Mr. Bey commenced this action on July 8, 2011, asserting
claims for, inter alia, violations of the Constitution
(e.g., due process and unreasonable search and seizure),
various criminal statutes (e.g., genocide and kidnapping),
international treaties and provisions of the United Nations'
Charter, as well as a claim under the Alien Tort Claims
Act and claims for “breech [sic] of trust and fiduciary
duty,” for “use of statutes[,] ordinances, rules and policies
of the corporate state of New York[,] not a rule of law
against indigenous man,” and fraud. He is seeking monetary,
declaratory, and injunctive relief. Mr. Bey simultaneously
filed an application for a temporary restraining order and
preliminary injunction which was denied by this Court on July
13, 2011. 3
3 The contents of Mr. Bey's application are
incomprehensible; however, the Complaint asserts
that he is seeking an order enjoining the Family
Court proceeding and vacating any judgments
issued to date.
*3 On July 28, 2011, this Court entered an Order that:
(1) reminded Plaintiffs that pursuant to Rule 4(m) of the
Federal Rules of Civil Procedure they had to serve process
on Defendants by November 7, 2011 or their Complaint
would be dismissed; (2) advised Plaintiffs of their duty to
keep the Court informed of any change of address; and (3)
warned Plaintiffs that the claims brought on behalf of the
Bey Children would be dismissed without prejudice unless
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counsel entered a notice of appearance on their behalf within
thirty days. (Docket Entry 7.) No counsel has filed a notice of
appearance on behalf of the Bey Children to date.
Presently pending before the Court are the following: (1)
Mr. Bey's motions to vacate the July 28, 2011 Order, (2)
motions to dismiss filed on behalf of the State Defendants,
Mr. Cohen, and Ms. Kreger, and (3) Mr. Bey's motion for a
default judgment against all Defendants. 4 Plaintiffs have not
opposed the motions to dismiss.
4 The County Defendants did not move to dismiss
but rather answered the Complaint on November
7, 2011 and asserted cross-claims against the other
defendants for indemnification and/or contribution.
DISCUSSION
Before discussing the merits of the pending motions, the
Court must briefly address a threshold issue. Pursuant to
Rule 11(a) of the Federal Rules of Civil Procedure, “[e]very
pleading, written motion, and other paper shall be signed by
at least one attorney of record ... or, by a party personally if
the party is unrepresented.” Since a non-attorney, pro se party
may not represent another's interests, see Iannaccone v. Law,
142 F.3d 553, 558 (2d Cir.1998), every pro se plaintiff must
sign a copy of the operative complaint in order to be a party
to the action, see Lynch v. DeMarco, No. 11–CV–2602, 2011
WL 3418390, at *2 (E.D.N.Y. July 29, 2011). Here, only Mr.
Bey signed the Complaint; therefore, he is the only proper
plaintiff in this action. If the Court does not receive a copy
of the Complaint signed by Mrs. Bey within thirty (30) days
of the date of this Memorandum and Order, all of her claims
will be dismissed.
I. Motion to Set Aside and Vacate
On September 19, 2011, Mr. Bey filed a motion requesting
that the Court “take mandatory judicial notice that the
order dated July 28, 2010[sic], signed by Judge Joanna
Seybert is inconsistent with Stare decisis [sic] Supreme Court
Ruling [sic] Winkleman v. Parma Central School District,
550 U.S. 516 (2007)” and “set aside and vacate [this] void
order.” (Docket Entry 19.) Mr. Bey filed a similar (albeit less
clear) motion to “take mandatory judicial notice” and “set
aside and vacate” the July 28, 2011 Order on October 31,
2011. (Docket Entry 27.) These motions are denied for three
reasons.
First, to the extent that Mr. Bey is seeking to vacate a “final
judgment, order, or proceeding” pursuant to Rule 60(b) of
the Federal Rules of Civil Procedure, his motion is premature
as the July 28, 2011 Order is not a “final” order for the
purposes of Rule 60(b). See Byrne v. Liquid Asphalt Sys.,
Inc., 250 F.Supp.2d 84, 87 (E.D.N.Y.2003) (“Courts have
held that a final judgment is needed to support a Rule 60(b)
motion.” (citation omitted)); Wanamaker v. Columbian Rope
Co., 907 F.Supp. 522, 526–27 (N.D.N . Y.1995) (finding
that an order “dismissing some but not all of the defendants,
and dismissing some but not all of plaintiff's claims, was
interlocutory and thus not ‘final’ for the purposes of Rule
60(b)”).
*4 Second, to the extent that Mr. Bey's motion is more
properly construed as one for reconsideration under Local
Civil Rule 6.3, his motion is time-barred. Local Civil Rule
6.3 requires motions for reconsideration to “be served within
fourteen ¶ 4) days after the entry of the Court's determination
of the original motion.” Here, Mr. Bey waited almost two
months after the Court issued its Order to file his first
motion to vacate and another six weeks to file his second
motion to vacate. Thus, both motions are time-barred and are,
accordingly, DENIED. 5
5 Mr. Bey argues that his motion is “timely because
non attorneys are not bound by the same rules as
attorneys.” (Docket Entry 19, at 2.) This is not true.
A plaintiff's pro se status “does not exempt [him]
from compliance with relevant rules of procedural
and substantive law.” Traguth v. Zuck, 710 F.2d
90, 95 (2d Cir.1983) (internal quotation marks and
citation omitted).
Finally, Mr. Bey's argument in support of reconsideration
is without merit. Mr. Bey argues that he and his wife may
represent the interests of their infant children pro se. However,
while a parent may bring a lawsuit on behalf of an infant
child, it is well established that the parent cannot do so pro
se. See Cheung v. Youth Orchestra Found. of Buffalo, Inc.,
906 F.2d 59, 61 (2d Cir.1990) (holding that a father was
not allowed to bring suit on behalf of his minor daughter
without representation by counsel); Berrios v. N.Y.C. Hous.
Auth., 564 F.3d 130, 133 (2d Cir.2009) (“The fact that a
minor or incompetent person must be represented by a next
friend, guardian ad litem, or other fiduciary does not alter the
principle ... that a non-attorney is not allowed to represent
another individual in federal court litigation without the
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assistance of counsel.”). The Court warned Plaintiffs that
the claims brought on behalf of the Bey Children would
be dismissed unless counsel filed a notice of appearance by
August 27, 2011. More than a year has passed and no lawyer
has appeared on behalf of the Bey Children. Accordingly,
their claims are DISMISSED without prejudice.
II. Motion for Default Judgment
Also pending is Mr. Bey's motion for the entry of default
and a default judgment against all Defendants. A party is
entitled to an entry of default when the party against whom
judgment is sought “has failed to plead or otherwise defend.”
FED. R. CIV. P. 55(a). In the present case, counsel for
Defendants either filed a motion to dismiss or an answer on
behalf of every Defendant (see Docket Entries 25, 29, 32,
34), and the Clerk of the Court noted this on December 7,
2011 when he refused to enter a certificate of default against
Defendants (Docket Entry 44). Thus, there is no basis for
entering a default judgment in this case, and Mr. Bey's motion
is DENIED.
III. Motions to Dismiss
There are three motions to dismiss pending: one filed by the
State Defendants, one filed by Cheryl Kreger, and one filed
by Bruce Cohen. The Court will first discuss the applicable
standard of review before turning to the merits of the pending
motions.
A. Standard of Review under Rule 12(b)(6)
In deciding Rule 12(b)(6) motions to dismiss, the Court
applies a “plausibility standard,” which is guided by “[t]wo
working principles.” Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Harris v. Mills,
572 F.3d 66, 72 (2d Cir.2009). First, although the Court must
accept all of a complaint's allegations as true, this “tenet”
is “inapplicable to legal conclusions;” thus, “[t]hreadbare
recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Harris,
572 F.3d at 72 (alteration in original) (quoting Iqbal, 556
U.S. at 678) (internal quotation marks omitted). Second,
only complaints that state a “plausible claim for relief”
survive a motion to dismiss. Id. (internal quotation marks
and citation omitted). Determining whether a complaint does
so is “a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Id. (internal quotation marks and citation omitted).
While pro se plaintiffs enjoy a somewhat more liberal
pleading standard, see Erickson v. Pardus, 551 U.S. 89,
94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (“[A] pro
se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers.”) (internal quotation marks and citation omitted),
they must still comport with the procedural and substantive
rules of law. Colo. Capital v. Owens, 227 F.R.D. 181, 186
(E.D.N.Y.2005).
B. The State Defendants' Motion to Dismiss
*5 For the following reasons, the Court grants the State
Defendants' motion to dismiss.
1. Claims against New York State and the Nassau County
Family Court
All of Mr. and Mrs. Bey's claims against the State of
New York and the Nassau County Family Court are
barred by sovereign immunity. See Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900,
79 L.Ed.2d 67 (1984). “The Eleventh Amendment to the
Constitution bars suits against a state in federal court unless
that state has consented to the litigation or Congress has
permissibly enacted legislation specifically overriding the
state's immunity.” Russell v. Dunston, 896 F.2d 664, 667 (2d
Cir.1990) (citations omitted); see also Bd. of Trustees of Univ.
of Ala. v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148
L.Ed.2d 866 (2001). This bar precludes suits against states for
both monetary and equitable relief. See Edelman v. Jordan,
415 U.S. 651, 667–69, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974);
Cory v. White, 457 U.S. 85, 90–91, 102 S.Ct. 2325, 72 L.Ed.2d
694 (1982); see also Atl. Healthcare Benefits Trust v. Googins,
2 F.3d 1, 4 (2d Cir.1993). Therefore, all claims against the
State of New York must be dismissed with prejudice.
The Nassau County Family Court is also immune from
suit under the Eleventh Amendment because it is an arm
of the State of New York. Madden v. Vt. Sup.Ct., 8 F.
App'x 128, 129 (2d Cir.2001) (finding that claims against
the Vermont Supreme Court were barred by the Eleventh
Amendment); Gollomp v. Spitzer, 568 F.3d 355, 366 (2d
Cir.2009) (finding that the New York state Unified Court
System, of which a county court is a part, is an “arm of
the State,” and therefore entitled to Eleventh Amendment
immunity); Manko v. Steinhardt, No. 11–CV–5430, 2012 WL
213715, at *3 (E.D.N.Y. Jan. 24, 2012) (dismissing claim
against the Kings County Supreme Court of the State of
New York Clerk's Office because it was barred by Eleventh
Amendment immunity as an arm of the State of New York).
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Accordingly, the claims against the Nassau County Family
Court must also be dismissed with prejudice.
2. Claims against Judge Dane and Judge Sullivan
The claims for monetary relief against Judge Dane and Judge
Sullivan must be dismissed because “[i]t is well settled that
judges are absolutely immune from suit for any actions taken
within the scope of their judicial responsibilities or within his
or her jurisdiction,” Miller v. Cnty. of Nassau, 467 F.Supp.2d
308, 312 (E.D.N.Y.2006) (citing Mireles v. Waco, 502 U.S.
9, 11–12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991); Maestri v.
Jutkof sky, 860 F.2d 50, 52–53 (2d Cir.1988)), and that such
“immunity is not overcome by allegations of bad faith or
malice,” Mireles, 502 U .S. at 11 (citation omitted); see also
Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d
288 (1967) ( “[I]mmunity applies even when the judge is
accused of acting maliciously and corruptly.”). Here, as all
of the claims against Judge Dane and Judge Sullivan arise
solely out of actions they allegedly took from the bench while
presiding over various proceedings involving Mr. and Mrs.
Bey, their alleged wrongful conduct falls squarely within the
scope of absolute judicial immunity. Accordingly, all of Mr.
and Mrs. Bey's claims for monetary relief are dismissed with
prejudice.
*6 Mr. and Mrs. Bey are also seeking declaratory and
injunctive relief, which do not fall within the ambit of
judicial immunity. These claims, however, fail as a matter
of law. First, Mr. and Mrs. Bey's claims for injunctive
relief under Section 1983 are barred because “in any action
brought against a judicial officer for an act or omission
taken in such officer's judicial capacity, injunctive relief shall
not be granted unless a declaratory decree was violated or
declaratory relief was unavailable.” 42 U.S.C. § 1983; see
also Dorman v. Higgins, 821 F.2d 133, 139 (2d Cir.1987).
Further, to the extent that Mrs. Bey's constitutional claims
arise out of the ongoing Family Court proceedings, they
are barred either by the Younger abstention doctrine, see
Diamond “D” Const. Corp. v. McGowan, 282 F.3d 191, 198
(2d Cir.2002) (“Younger generally requires federal courts to
abstain from taking jurisdiction over federal constitutional
claims that involve or call into question ongoing state
proceedings.” (citing Younger v. Harris, 401 U.S. 37, 43–
44, 91 S.Ct. 746, 27 L.Ed.2d 669) (1971)); Donkor v. N.Y.C.
Human Res. Admin. Special Servs. for Children, 673 F.Supp.
1221, 1224–27 (S.D.N.Y.1987), or the Rooker–Feldman
doctrine, 6 see Phifer v. City of N.Y., 289 F.3d 49, 57 (2d
Cir.2002) (“This court may not review the family court's
determinations regarding custody, neglect and visitation” if
“those issues were decided by the family court after providing
[the plaintiff] with a full and fair opportunity to litigate those
issues”).
6 Although it appears as though the Family Court
proceedings against Mrs. Bey are ongoing and
the neglect petitions filed against Mr. Bey have
been dismissed (Kreger Decl. ¶ 7 n. 1), Mr. and
Mrs. Bey are also seeking, inter alia, vacatur of
the “judgments issued by The Family Court and
Nassau County Court CPS” (Compl. at 42).
Second, Mr. and Mrs. Bey's claim for breach of the public's
trust is not a cognizable cause of action. See Brady v. Lynes,
No. 05–CV–6540, 2008 WL 2276518, at *6 (S.D.N.Y. June
2, 2008).
Third, their claim under the Alien Tort Claims Act fails
because they are not “aliens” within the meaning of the
statute. See Topo v. Dhir, 210 F.R.D. 76, 78 (S.D.N.Y.2002)
(defining “alien” in the context of the Alien Tort Claims
Act as a “foreign born person who has not qualified as a
citizen of the country” (internal quotation marks and citation
omitted)). Mr. and Mrs. Bey assert that they are “aliens”
because they have declared their independence from the
United States (see Mr. Bey's Aff. in Support of Prelim. Inj.
¶ 4 (“Indigenous Affiant declares independence from the
USA and all sub-corporations thereof, and heretofore, herein
and hereafter claims absolute power, authority and control
over himself, without limitation, and herein states, for the
record, that he is a free, sovereign indigenous political power
holder ....); see also Compl. at 1 (Mr. Bey describing himself
as a “Free Indigenous Sovereign Political Power Holder”);
id. at 42 (requesting a “Declaratory Judgment verifying the
lawful indigenous status of The Bey Family”)); however, such
arguments have been uniformly rejected by courts in this
Circuit and others, see, e.g., United States v. Hilgeford, 7
F.3d 1340, 1342 (7th Cir.1993) (“The defendant in this case
apparently holds a sincere belief that he is a citizen of the
mythical ‘Indiana State Republic’ and for that reason is an
alien beyond the jurisdictional reach of the federal courts.
This belief is, of course, incorrect.”); Duwenhoegger v. King,
No. 10–CV–3965, 2012 WL 1516865, at *14 (D.Minn. Feb.
13, 2012) (“[A]ny argument by plaintiff that he is not subject
to the laws of Minnesota or the United States because he is
a “Sovereign Citizen” is frivolous.” (collecting cases)); M &
I Marshall & Ilsley Bank v. Glavin, No. 10–CV–0616, 2011
WL 322663, at *1 (W.D.Wis. Jan. 31, 2011) (“This ‘sovereign
citizen’ argument has been rejected repeatedly by courts.”);
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United States v. Lumumba, 741 F.2d 12, 14–15 (2d Cir .1984)
(rejecting criminal defendant's argument that he is immune
from prosecution due to his “proclaimed status” as “Vice
President and Minister of Justice” of the “independent state”
of “the Republic of New Afrika”—a self-created “Nation
of Afrikans born in North America as a consequence of ...
slavery” (alteration in original)).
*7 Fourth, any of Mr. and Mrs. Bey's claims arising
under Title 18 of the United States Code necessarily fail
because there is no private right of action under criminal
statutes, see, e.g., Sanchez v. Dankert, No. 00–CV–1143,
2002 WL 529503, at *10–11 (S.D .N.Y. Feb. 22, 2002)
(collecting cases), and there is similarly no private right of
action under international treaties or provisions of the United
Nation's Charter, see, e.g., id. at *11; United States v. De
La Pava, 268 F.3d 157, 164 (2d Cir.2001) (“[T]here is a
strong presumption against inferring individual rights from
international treaties.”); Garza v. Lappin, 253 F.3d 918, 924
(7th Cir.2001) (“[A]s a general rule, international agreements,
even those benefitting private parties, do not create private
rights enforceable in domestic courts.”); RESTATEMENT
(THIRD) OF THE FOREIGN RELATIONS LAW OF
THE UNITED STATES,,,, § 907 cmt. a. (“International
agreements ... generally do not create private rights or provide
for a private cause of action in domestic courts....”); Joyner–
El v. Giammarella, No. 09–CV–3731, 2010 WL 1685957,
at *3 n. 4 (S.D.N.Y. Apr. 15, 2010) (finding that the
United Nations' Universal Declaration of Human Rights and
Declaration on the Rights of Indigenous Peoples do not create
federal causes of action (citing Sosa v. Alvarez–Machain, 542
U.S. 692, 734, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004))).
Finally, Mr. and Mrs. Bey's claim that “any Laws[,] statutes,
ordinances and rules made since 1867 are unconstitutional”
because Congress “ceased to exist as a lawful deliberative
body” after the South seceded from the Union during the Civil
War is frivolous and entirely without merit.
Accordingly, all claims against Judge Sullivan and Judge
Dane are hereby dismissed with prejudice. 7
7 To the extent that Mr. and Mrs. Bey assert claims
for declaratory relief arising under state law, the
Court declines to extend supplemental jurisdiction,
and those claims are dismissed without prejudice.
See Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343,
350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988).
3. Claims against Defendants Fitzgerald and Coppola
Defendants Fitzgerald and Coppola are also entitled to
immunity because it is well established that “the clerk of
the court and deputy clerks are shielded by an absolute
quasijudicial immunity, particularly when they ‘perform
tasks that are an integral part of the judicial process.’ “
McGann v. Lange, No. 96–CV–0859, 1996 WL 586798,
at *2 (E.D.N.Y. Oct. 10, 1996) (quoting Mullis v. U.S.
Bankr.Ct., 828 F.2d 1385, 1390 (9th Cir.1987)); see also
Rodriguez v. Weprin, 116 F.3d 62, 66 (2d Cir.1997) (finding
that the “court's inherent power to control its docket is part
of its function of resolving disputes between parties” and
is thus “a function for which judges and their supporting
staff are afforded absolute immunity”). In this case, Mr. and
Mrs. Bey allege that Defendant Coppola refused to file Mr.
Bey's “objection and counter claim” (Compl.¶ 40) and that
Coppola and Fitzgerald did not provide him with a copy
of the entire court file upon request (Compl .¶ 47). Courts
have found similar actions by court clerks to be shielded
by absolute quasi-judicial immunity. See, e.g., Rodriguez,
116 F.3d at 66 (finding that clerks were entitled to quasi-
judicial immunity for, inter alia, refusing an inmate's request
for records on appeal); Pukulin v. Gonzalez, No. 07–CV–
0412, 2007 WL 1063353, at *2 (E.D.N.Y. Apr. 5, 2007)
(finding that absolute judicial immunity extends to “the
Clerk's Office['s] activities of filing and docketing legal
documents”); McKnight v. Middleton, 699 F.Supp.2d 507,
525–26 (E.D.N.Y.2010) (granting immunity to Family Court
clerk for claims arising out of his failure to process the
plaintiff's motions); Mullis, 828 F.2d at 1390 (finding that
clerk was entitled to quasi-judicial immunity for, inter alia,
refusing to file a document with the court); Stewart v. Minnick,
409 F.2d 826, 826 (9th Cir.1969) (holding that quasi-judicial
immunity shielded court clerk from suit arising out of his
refusal to provide litigant with a portion of the trial transcript).
*8 Accordingly, and for the reasons discussed above,
all claims against Defendants Fitzgerald and Coppola are
dismissed.
C. Defendant Cohen's Motion to Dismiss
The only allegations in the Complaint against Defendant
Cohen, who according to the Complaint was Mr. and Mrs.
Bey's court-appointed attorney (Compl.¶ 19), are that on
October 19, 2010, he advised Mr. Bey that he missed a court
appearance and directed him to return to court at 2:00PM
(Compl.¶ 44). Upon Mr. Bey's return to court later that day, he
was arrested. (Compl.¶ 44 .) Defendant Cohen argues that the
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claims against him must be dismissed because: (1) the Court
lacks subject matter jurisdiction, (2) he was never properly
served, and (3) the Complaint fails to state a claim.
The Court finds Defendant Cohen's jurisdictional arguments
to be without merit as (1) the Complaint asserts claims for
violations of the United States Constitution so this Court has
subject matter jurisdiction, see 28 U.S.C. § 1331, and (2)
allegations of improper service, without a sworn affidavit, are
insufficient to establish improper service, see United States v.
Riser, No. 10–CV–4550, 2011 WL 1004566, at *3 (E.D.N.Y.
Mar. 16, 2011).
However, the Court finds that Mr. and Mrs. Bey have failed
to state a cognizable claim for relief against Defendant
Cohen. Their claims arising under Section 1983 fail because
Defendant Cohen is not a state actor. See Browdy v. Karpe,
131 F. App'x 751, 753 (2d Cir.2005) (“[C]ourt-appointed
attorneys ‘performing a lawyer's traditional functions as
counsel’ to a defendant do not act ‘under color of state law’
and, therefore, are not subject to suit under 42 U.S.C. §
1983.” (quoting Rodriguez, 116 F.3d at 65–66)). And to the
extent that Mr. and Mrs. Bey attempt to cure this defect by
conclusorily alleging that Defendant Cohen conspired with
state officials, “[a] merely conclusory allegation that a private
[party] acted in concert with a state actor does not suffice to
state a § 1983 claim against [a] private [party].” Ciambriello
v. Cnty. of Nassau, 292 F.3d 307, 324 (2d Cir.2002) (citation
omitted); accord Browdy, 131 F. App'x at 753.
Accordingly, all constitutional claims (and for the reasons
discussed above, all other claims) against Defendant Cohen
must be dismissed.
D. Defendant Kreger's Motion to Dismiss
Mr. and Mrs. Bey's claims against Defendant Kreger arise
out of her appointment as the Bey Children's law guardian.
Defendant Kreger argues that the claims asserted against
her must be dismissed because: (1) she is protected by
quasijudicial immunity; (2) Mr. and Mrs. Bey lack standing
to assert claims against her; (3) Mr. and Mrs. Bey lack privity
with her; (4) the claims are barred by the Rooker–Feldman
doctrine; (5) the Complaint does not contain a short and
concise statement of Plaintiffs' claims in violation of Rule 8 of
the Federal Rules of Civil Procedure; and (6) the Complaint
fails to state a claim upon which relief can be granted. Because
the Court finds that Defendant Kreger is protected by quasi-
judicial immunity, it will not address her other arguments.
*9 Courts in New York have consistently held that law
guardians are entitled to absolute quasi-judicial immunity
for actions taken within the scope of their appointment. See
Yapi v. Kondratyeva, 340 F. App'x 683, 685 (2d Cir.2009);
Dowlah v. Dowlah, No. 09–CV–2020, 2010 WL 889292,
at *7 (E.D.N.Y. Mar. 10, 2010) (collecting cases); see also
Bluntt v. O'Connor, 291 A.D.2d 106, 116–119, 737 N.Y.S.2d
471 (4th Dep't 2002) (“[M] ost courts that have considered
suits by disgruntled parents against attorneys appointed by
courts to protect children in custody disputes have granted,
on public policy grounds, absolute quasijudicial immunity
to the attorneys for actions taken within the scope of their
appointments.” (collecting cases)).
Because all of the claims against Defendant Kreger arise
out of activities taken within the scope of her appointment
as the Bey Children's legal guardian (i.e., participating in
proceedings in Family Court (Comp.¶ 50) and interviewing
the Bey Children about their parents (Compl.¶ 53)), her
actions are protected by quasi-judicial immunity. Therefore,
for this reason and the reasons discussed above, the Court
GRANTS her motion, and all claims against Defendant
Kreger are dismissed. 8
8 Defendant Kreger also filed a letter motion asking
this Court to sua sponte dismiss the claims asserted
against her. (Docket Entry 18.) This motion is
DENIED AS MOOT.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that:
(1) The pending motions to dismiss are GRANTED (Docket
Entries 25, 29, 32), and all claims (including cross-claims)
against Defendants Sullivan, Dane, Kreger, Fitzgerald,
Coppola, and Cohen are DISMISSED; 9
9 With the exception of any claims for declaratory
judgment arising under state law, all claims are
DISMISSED WITH PREJUDICE.
(2) Ms. Kreger's letter motion asking the Court to sua sponte
dismiss the claims against her (Docket Entry 18) is DENIED
AS MOOT;
(2) Mr. Bey's motions to vacate (Docket Entries 19, 27) are
DENIED, and all claims brought on behalf of Rein, Drizzle,
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Truth, and Amicus Curiae Bey are DISMISSED without
prejudice; and
(3) Mr. Bey's motion for a default judgment (Docket Entry
39) is DENIED; and
4) Mrs. Bey's remaining claims will be dismissed without
prejudice unless the Court receives a copy of the Complaint
signed by Mrs. Bey within thirty (30) days of the date of this
Memorandum and Order.
The Clerk of the Court is directed to terminate Judge Sullivan,
Judge Dane, Ms. Kreger, Ms. Fitzgerald, and Mr. Cohen
as Defendants and Rein, Drizzle, Truth, and Amicus Curiae
Bey as Plaintiffs. The Clerk of the Court is also directed to
terminate the motion at Docket Entry 23 (see supra page 2
n. 2) which is not a motion but rather Defendant Cohen's
opposition to Plaintiff's motion to vacate. The Clerk of the
Court is further directed to mail a copy of this Memorandum
and Order to each of the pro se Plaintiffs.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2012 WL 4370272
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Bey v. New York
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History (2)
Direct History (1)
1. Bey v. New York
2012 WL 4370272 , E.D.N.Y. , Sep. 21, 2012
Related References (1)
2. Bey v. New York
2013 WL 3282277 , E.D.N.Y. , June 25, 2013
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Bey v. New York
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Filings
There are no Filings for this citation.
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Humphrey v. Court Clerk for the Second Circuit, Not Reported in F.Supp.2d (2008)
2008 WL 1945308
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by McKnight v. Middleton, E.D.N.Y., March 29, 2010
2008 WL 1945308
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
John Jay HUMPHREY, Plaintiff,
v.
COURT CLERK FOR THE
SECOND CIRCUIT, Defendant.
No. 508-CV-0363 (DNH)(DEP).
|
May 1, 2008.
Attorneys and Law Firms
John Jay Humphrey, pro se.
DECISION and ORDER
DAVID N. HURD, District Judge.
*1 The Court has received plaintiff John Jay Humphrey's
pro se complaint pursuant to Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388
(1971), for review, together with an in forma pauperis
application. 1 Dkt. Nos. 1, 2. For the reasons stated below,
plaintiff's complaint is dismissed pursuant to 28 U.S.C. §
1915(e).
1 The Court notes that plaintiff has filed numerous
actions in this District in addition to the present
case. See Humphrey v. Onondaga County Sheriff,
5:02-CV-1524 (NPM/DEP); Humphrey v. State of
New York, 5:03-CV-1181 (HGM/GJD); Humphrey
v. U.S. Gov't, 5:04-CV-145 (HJM/GJD); Humphrey
v. Carni, 5:05-CV-0253 (FJS/GHL); Humphrey v.
WIXT News Channel 9, 5:05-CV-0636 (FJS/DEP);
Humphrey v. Rescue Mission, 5:05-CV-0795
(NAM/GJD); Humphrey v. Rescue Mission, 5:05-
CV-0986 (FJS/GJD); Humphrey v. Onondaga
County Dep't of Soc. Servs., 5:05-CV-987 (NAM/
GJD); Humphrey v. Styers, 5:05-CV-1036 (FJS/
GHL); Humphrey v. Court Clerk, NDNY, 5:05-
CV-1159 (NAM/GJD); Humphrey v. Weichert,
5:05-CV-1205 (NAM/GJD); Humphrey v. Two
Unknown Fed. Employees, 5:06-CV-0786 (NAM/
DEP); Humphrey v. Onondaga County Sheriff's
Dep't, 5:07-CV-0721 (DNH/GJD); Humphrey v.
Onondaga County Sheriff's Dep't, 5:07-CV-1102
(DNH/GJD).
I. Background
In his pro se complaint, plaintiff claims that the Clerk of
the United States Court of Appeals for the Second Circuit
failed to inform him until “months later” that his appeal
was dismissed in three of his prior actions, Humphrey v.
WIXT News Channel 9, 5:05-CV-0636 (FJS/DEP), Humphrey
v. Weichert, 5:05-CV-1205 (NAM/GJD); Humphrey v. Two
Unknown Fed. Employees, 5:06-CV-0786 (NAM/DEP). Dkt.
No. 1 at ¶¶ 1, 4-7. According to plaintiff, the Clerk's failure
to communicate with him hindered his ability to petition
the United States Supreme Court for writs of certiorari in
these actions. Id. at ¶¶ 10, 13. Plaintiff further alleges that
the Clerk neglected to provide him with the status of his
appeal in the action titled Humphrey v. Styers, 5:05-CV-1036
(FJS/GHL). Id. at ¶¶ 3, 8. Plaintiff seeks monetary relief in
the amount of One Million Dollars. Id. at p. 4. For a more
complete statement of plaintiff's claims, reference is made to
the complaint.
II. Discussion
Turning to plaintiff's in forma pauperis application, the Court
finds that he may properly commence this action in forma
pauperis because he sets forth sufficient economic need. Dkt.
No. 2.
Since the Court has found that plaintiff meets the financial
criteria for commencing this case in forma pauperis, the
Court must now consider the sufficiency of the allegations
set forth in the complaint in light of 28 U.S.C. § 1915(e).
Section 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) 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.” 2 28
U.S.C. § 1915(e)(2)(B). Thus, the court has a responsibility
to determine that a complaint may be properly maintained in
this district before it may permit a plaintiff to proceed with
an action in forma pauperis. 3 See id. Although courts have a
duty to show liberality towards pro se litigants, Nance v. Kelly,
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912 F.2d 605, 606 (2d Cir.1990) (per curiam), and extreme
caution should be exercised in ordering sua sponte dismissal
of a pro se complaint before the adverse party has been
served and the parties have had an opportunity to respond,
Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir.1983), there
is a responsibility placed upon the court to determine that a
claim is not frivolous before permitting a plaintiff to proceed.
See Fitzgerald v. First East Seventh St. Tenants Corp., 221
F.3d 362, 363 (2d Cir.2000) (finding that a district court may
dismiss a frivolous complaint sua sponte notwithstanding the
fact the plaintiff has paid the statutory filing fee); Wachtler v.
Herkimer County, 35 F.3d 77, 82 (2d Cir.1994) (finding that
a district court has the power to dismiss a case sua sponte for
failure to state a claim).
2 In determining whether an action is frivolous, the
Court must determine whether the complaint lacks
an arguable basis either in law or in fact. Neitzke v.
Williams, 490 U.S. 319, 325 (1989).
3 Dismissal of frivolous actions pursuant to 28
U.S.C. § 1915(e) is appropriate to prevent abuses
of the process of the court, Harkins v. Eldredge,
505 F.2d 802, 804 (8th Cir.1974), as well as to
discourage the waste of judicial resources. Neitzke,
490 U.S. at 327.
*2 As noted, plaintiff seeks to assert claims against the
defendant for the violation of his constitutional rights. Bivens
actions, although not precisely parallel, are the federal analog
to Section 1983 actions against state actors. See Chin v.
Bowen, 833 F.2d 21, 24 (2d Cir1987) (noting that there
is a “general trend in the appellate courts” to incorporate
Section 1983 law into Bivens cases) (citation and quotations
omitted). 4
4 Section 1983 establishes a cause of action for “the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws” of the United
States. German v. Fed. Home Loan Mortgage
Corp., 885 F.Supp. 537, 573 (S.D.N.Y.1995)
(citing Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498,
508 (1990) (quoting 42 U.S.C. § 1983)) (footnote
omitted).
Plaintiff maintains that the “Court Clerk” for the Second
Circuit Court of Appeals improperly failed to communicate
with him regarding the status of the appeals in four of his
cases. A review of the appellate dockets in Humphrey v.
Weichert, Humphrey v. Two Unknown Federal Employees,
and Humphrey v. WIXT News Channel 9 reveals that
plaintiff indeed was immediately notified of the mandates
dismissing his appeals in those actions. 5 See Humphrey v.
Weichert, Appellate Action No. 05-6846; Humphrey v. Two
Unknown Federal Employees, Appellate Action No. 07-0631;
Humphrey v. WIXT News Channel 9, Appellate Action No.
05-4122. Plaintiff's appeal in Humphrey v. Styers remains
pending, and plaintiff is free to inquire regarding the status
of his case at any time. See Humphrey v. Styers, Appellate
Action No. 05-6695.
5 It bears mentioning that in WIXT News Channel 9,
the docket reflects that the notice sent to plaintiff
regarding the issuance of a mandate dismissing his
appeal for failure to comply with the scheduling
order in that action was returned as undeliverable.
That fact, however, is not determinative of the
validity of plaintiff's claim.
The Court also notes that plaintiff does not clearly allege
wrongdoing on the part of the individual who serves as the
Clerk of the Court for the Second Circuit, as opposed to one
or more of the individuals employed in the Clerk's Office. As
with claims asserted under Section 1983, a plaintiff seeking
to recover money damages in a Bivens action must establish
that the named defendant was personally involved in the
misconduct complained of. 6 See Elmaghraby v. Ashcroft, No.
04 CV 01809, 2005 WL 2375202, at *11 (E.D.N.Y. Sept. 27,
2005), reversed on other grounds, Iqbal v. Hasty, 490 F.3d
143 (2d Cir.2007); Richardson v. Goord, 347 F .3d 431, 435
(2d Cir.2003) (discussing supervisory liability in context of a
section 1983 claim); see also Wilson v. Layne, 526 U.S. 603,
609 (1999) (explaining that the qualified immunity analysis
under Bivens is identical to the analysis under section 1983).
In this case, plaintiff has not set forth sufficient facts to
establish that the Clerk of the Court was personally involved
in the actions complained of. In light of plaintiff's pro se
status, the Court has considered whether plaintiff's complaint
states a claim upon which relief could be granted assuming,
arguendo, that he has properly identified the defendant and
concludes that it does not.
6 A supervisory official can, however, be personally
involved in a constitutional violation in one
of several ways: (1) the supervisor may have
directly participated in the challenged conduct;
(2) the supervisor, after learning of the violation
through a report or appeal, may have failed
to remedy the wrong; (3) the supervisor may
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2008 WL 1945308
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have created or allowed to continue a policy
or custom under which unconstitutional practices
occurred; (4) the supervisor may have been grossly
negligent in managing the subordinates who caused
the unlawful event; or (5) the supervisor may
have failed to act on information indicating that
unconstitutional acts were occurring. Iqbal v.
Hasty, 490 F.3d 143, 152-53 (2d Cir.2007); see
also Richardson v. Goord, 347 F.3d 431, 435 (2d
Cir.2003); Wright v. Smith, 21 F.3d 496, 501 (2d
Cir.1994); Williams v. Smith, 781 F.2d 319, 323-24
(2d Cir.1986).
Courts have extended judicial immunity to court clerks for
the performance of tasks “which are judicial in nature and an
integral part of the judicial process.” Rodriguez v. Weprin, 116
F.3d 62, 66 (2d Cir.1997); see also Kampfer v. Rodriguez, No.
97-CV-739, 1998 WL 187364, at *2 (N.D.N.Y. Apr. 15, 1998)
(Pooler, D .J.). Court clerks enjoy absolute immunity even for
administrative functions if the task was undertaken pursuant
to the explicit direction of a judicial officer or pursuant to
the established practice of the court. Rodriguez, 116 F.3d at
67. A court clerk, however, may not be entitled to absolute
immunity in all cases, such as where the clerk's refusal to
accept the papers of a litigant seeking to commence an action
under a state statute results in the deprivation of the litigant's
constitutional rights. LeGrand v. Evan, 702 F.2d 415, 418
(2d Cir.1983). In this case, plaintiff's allegations arise out of
and relate to actions taken by court personnel which were
in accordance with the established practice of the Second
Circuit, and pursuant to the direction of a judicial officer as
articulated in the relevant appellate mandates; accordingly,
these actions constitute an integral part of the judicial process
and are shielded from liability by judicial immunity. In any
event, although plaintiff contends that the Clerk's alleged
failure to communicate with him deprived him of his right
to seek writs of certiorari, the pertinent dockets indicate that
such notification did indeed occur. Accordingly, defendant
Clerk of the Court for the United States Court of Appeals for
the Second Circuit is hereby dismissed with prejudice. 7
7 In addition, while not deciding this matter on this
basis, the Court notes that it is not clear that venue
is appropriate in this District. See 28 U.S.C. §
1391(b).
III. Conclusion
*3 Plaintiff's complaint, as drafted, is not sufficient to state
a claim for the violation of plaintiff's constitutional rights
by the named defendant. The named defendant is immune
from damages on the claims asserted in this Bivens action
and the complaint lacks an arguable basis in law or in fact.
Accordingly, plaintiff's complaint is dismissed pursuant to 28
U.S.C. § 1915(e).
THEREFORE, it is hereby
ORDERED, that
1. This action is DISMISSED;
2. Plaintiff's in forma pauperis application is DENIED as
moot; and
3. The Clerk of the Court is directed to serve a copy of this
Order on plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2008 WL 1945308
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Humphrey v. Court Clerk for the Second Circuit
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Title PDF Court Date Type
1. Docket 5:08cv00363
HUMPHREY v. COURT CLERK FOR THE SECOND
CIRCUIT
— N.D.N.Y. Apr. 02, 2008 Docket
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Humphrey v. Court Clerk for the Second Circuit
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Humphrey v. Court Clerk for the Second Circuit
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Joyner v. County of Cayuga, Not Reported in Fed. Supp. (2020)
2020 WL 1904088
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Declined to Extend by Broadwater v. County of Onondaga, N.D.N.Y.,
March 11, 2024
2020 WL 1904088
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Michael JOYNER, Plaintiff,
v.
COUNTY OF CAYUGA; Cayuga County Sheriff's
Department; City of Auburn; Shawn I. Butler, Chief of
Auburn Police Department, as an Individual and in his
official capacity; Cayuga County District Attorney's
Office; Jon E. Budelmann, as an Individual and in
his capacity as District Attorney for Cayuga County;
and Anthony Spinelli, as an Individual and in his
capacity as an Auburn City Police Officer, Defendants.
5:20-CV-60 (MAD/TWD)
|
Signed 04/17/2020
Attorneys and Law Firms
OF COUNSEL: JARROD W. SMITH, ESQ., OFFICE OF
JARROD W. SMITH, 11 South Main Street, P.O. Box 173,
Jordan, New York 13080, Attorneys for Plaintiff.
OF COUNSEL: JEFFREY R. PARRY, ESQ., OFFICE OF
JEFFREY R. PARRY, 7030 East Genesee Street, Fayetteville,
New York 13066, Attorneys for Plaintiff.
OF COUNSEL: FRANK W. MILLER, ESQ., GIANCARLO
FACCIPONTE, ESQ., OFFICE OF FRANK W. MILLER,
6575 Kirkville Road, East Syracuse, New York 13057,
Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
Mae A. D'Agostino, U.S. District Judge:
I. INTRODUCTION
*1 On or about February 18, 2020, Plaintiff filed a complaint
against Defendants City of Auburn, Shawn L. Butler, County
of Cayuga, Cayuga County District Attorney's Office, Jon
E. Budelmann, and Anthony Spinelli, asserting eight claims
pursuant to 42 U.S.C. §§ 1983 and 1988, and state law.
See Dkt. No. 5. Specifically, Plaintiff's complaint alleges the
following causes of action: (1) false arrest under the Fourth
and Fourteenth Amendments; (2) malicious prosecution
under the Fourth and Fourteenth Amendments; (3) negligent
failure to train or supervise; (4) state law false arrest; (5)
state law false imprisonment; (6) intentional and negligent
infliction of emotional distress under New York State law;
(7) negligence; and (8) deliberate indifference to medical care
under the Eighth Amendment. See Dkt. No. 5 at ¶¶ 40-114.
Currently before the Court is Defendants’ motion to dismiss
the complaint in its entirety. See Dkt. No. 9.
II. BACKGROUND
According to the complaint, on August 10, 2018, Plaintiff
was the passenger in a vehicle that was driven by 140 Wall
Street, allegedly in violation of an order of protection for
Linda Fitzsimmons and Lee Joyner, who both reside at that
address. See Dkt. No. 5 at ¶¶ 24-25. Plaintiff resides at 145
Wall Street, several houses down from 140 Wall Street, on the
opposite side of the street. See id. at ¶ 25. Plaintiff was not the
driver of the vehicle and had no control over how the driver
was delivering him to his home. See id.
On August 13, 2018, Plaintiff was arraigned on two felony
complaints charging him with two counts of Criminal
Contempt in the First Degree based on the alleged violation of
the order of protection. See id. at ¶ 22. At the conclusion of his
arraignment, Plaintiff was remanded to the Cayuga County
Jail. See id. Plaintiff claims that “Defendant police officer
lacked the requisite requirement of having probable cause to
arrest the Plaintiff; and did falsely arrest and imprison the
Plaintiff.” Id. at ¶ 23.
On October 4, 2018, Defendant Jon E. Budelmann, in his
capacity as Cayuga County District Attorney, presented
Plaintiff's charges to a grand jury, which “No Billed” the case.
See id. at ¶ 26. At this point, Plaintiff was released from
custody. See id.
During the fifty-three days during which Plaintiff “was being
illegally imprisoned,” he slipped and fell at the Cayuga
County Jail. See id. at ¶ 31. According to Plaintiff, on August
31, 2018, a water pipe burst at the Cayuga County Jail near
Plaintiff's cell while he was already locked in for the night
and sleeping. See id. at ¶ 32. Plaintiff was woken by a
bursting water pipe that was turned off by a Cayuga County
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Correctional officer. See id. at ¶ 33. “The first burst of the
water pipe [occurred] when the Cayuga County Correctional
officer shut the water off” between “12:00 midnight and 2:00
a.m.” Id. at ¶ 34. “Plaintiff was woken by a bursting water
pipe; and observed and heard that the correctional officer was
going to turn off the water and clean up the water spill. At that
time, there was no water in Plaintiff's cell.” Id.
*2 Unbeknownst to Plaintiff, water from the burst pipe went
underneath his locked cell door “and flooded his room while
he was in bed and asleep.” Id. at ¶ 35. “At around 6:30
am-7:00 am, Plaintiff got out of his bed to use the toilet in
his cell. Plaintiff slipped and fell on the wet floor of his cell.
The water on the floor was all near the toilet in his cell. There
was a huge puddle of water between Plaintiff's bunk and the
toilet in his cell.” Id. at ¶ 36. Plaintiff claims that he slipped
and fell, hitting his head and neck on his bunk, and his lower
back on the floor, causing severe injuries. See id. at ¶ 37. At
the time that Plaintiff had fallen and injured himself, a second
water leak had occurred in the pod in which he was being
held. See id. at ¶ 38. Plaintiff claims that, as a result of the fall,
he suffered a herniated disc in his neck and a lower lumbar
strain. See id. at ¶ 39. Plaintiff also claims that he suffers from
numbing of his toes and finger tips. See id.
III. DISCUSSION
A. Standard of Review
A motion to dismiss for failure to state a claim pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure
tests the legal sufficiency of the party's claim for relief. See
Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation
omitted). In considering the legal sufficiency, a court must
accept as true all well-pleaded facts in the pleading and draw
all reasonable inferences in the pleader's favor. See ATSI
Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.
2007) (citation omitted). This presumption of truth, however,
does not extend to legal conclusions. See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citation omitted). Although a
court's review of a motion to dismiss is generally limited to
the facts presented in the pleading, the court may consider
documents that are “integral” to that pleading, even if they are
neither physically attached to, nor incorporated by reference
into, the pleading. See Mangiafico v. Blumenthal, 471 F.3d
391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner,
Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)).
To survive a motion to dismiss, a party need only plead “a
short and plain statement of the claim,” see Fed. R. Civ.
P. 8(a)(2), with sufficient factual “heft to ‘sho[w] that the
pleader is entitled to relief[,]’ ” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 557 (2007) (quotation omitted). Under this
standard, the pleading's “[f]actual allegations must be enough
to raise a right of relief above the speculative level,” see
id. at 555 (citation omitted), and present claims that are
“plausible on [their] face,” id. at 570. “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.” Iqbal, 556 U.S. at 678 (citation omitted).
“Where a complaint pleads facts that are ‘merely consistent
with’ a defendant's liability, it ‘stops short of the line between
possibility and plausibility of “entitlement to relief.” ’ ” Id.
(quoting [Twombly, 550 U.S.] at 557, 127 S. Ct. 1955).
Ultimately, “when the allegations in a complaint, however
true, could not raise a claim of entitlement to relief,” Twombly,
550 U.S. at 558, or where a plaintiff has “not nudged [its]
claims across the line from conceivable to plausible, the[ ]
complaint must be dismissed[,]” id. at 570.
B. Documents Considered in Deciding Motion to Dismiss
In their reply to the motion to dismiss, Defendants submitted
several documents in further support of their motion. See
Dkt. No. 16-1. These documents include (1) the August 10,
2018 criminal complaint charging Plaintiff with Criminal
Contempt in the First Degree, (2) the order of protection
that Plaintiff allegedly violated, (3) the affidavit of Linda
Fitzsimmons that formed the basis for Defendant's underlying
criminal charge, and (4) the incident narrative report of
Defendant Spinelli dated August 15, 2018 relating to the
criminal complaint filed against Plaintiff. See id. at 1-6.
*3 In deciding a motion to dismiss for failure to state a claim,
the court considers the complaint, materials incorporated
into the complaint by reference, materials integral to the
complaint, and facts that are capable of judicial notice. See
DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.
2010).
In the present matter, the Court finds that these documents
are not properly considered at the motion to dismiss stage.
The Court acknowledges that there are cases in which courts
have considered similar police records at the pleading stage.
See Betts v. Shearman, No. 12-cv-3195, 2013 WL 311124,
*3 (S.D.N.Y. Jan. 24, 2013) (considering incident report
and accusatory instrument that “provide[d] crucial details”
about the plaintiff's prosecution), aff'd on qualified immunity
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grounds, 751 F.3d 78 (2d Cir. 2014); cf. Obilo v. City
Univ. of City of N.Y., No. 01-cv-5118, 2003 WL 1809471,
*4 (E.D.N.Y. Apr. 7, 2003) (considering incident report
and police complaint that the plaintiff had conceded were
“implicitly” incorporated into his conspiracy allegations).
The better view, however, adopted by a majority of courts
in our Circuit, is that these kinds of police records are not
“integral” to a false arrest complaint. See Bejaoui v. City
of New York, No. 13-CV-5667, 2015 WL 1529633, *4–5
(E.D.N.Y. Mar. 31, 2015) (noting disagreement and declining
to consider extrinsic police reports); Alvarez v. Cty. of Orange,
95 F. Supp. 3d 385, 394-95 (S.D.N.Y. 2015) (collecting
cases). A document is not “integral” simply because its
contents are highly relevant to a plaintiff's allegations, but
only when it is clear that the plaintiff relied on the document
in preparing his complaint. See Global Network Commc'ns,
Inc. v. City of New York, 458 F.3d 150, 156-57 (2d Cir.
2006); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d
Cir. 2002). Most typically, “the incorporated document is a
contract or other legal document containing obligations upon
which the plaintiff's complaint stands or falls, but which for
some reason ... was not attached to the complaint.” Global
Network Commc'ns, 458 F.3d at 157. “It must also be clear
that there exist no material disputed issues of fact regarding
the relevance of the document.” Faulkner v. Beer, 463 F.3d
130, 134 (2d Cir. 2006).
Here, there is “no indication in the record that plaintiff
relied on these documents in drafting the complaint.” Allyn
v. Rockland Cty., No. 12-cv-5022, 2013 WL 4038602, *4
(S.D.N.Y. July 30, 2013), affirmed, 646 Fed. Appx. 60 (2d Cir.
2016). To the contrary, Plaintiff relies on his own perceptions
and recollections, while only making passing reference to
the criminal complaint and order of protection. Furthermore,
it is not beyond dispute that the police report and narrative
are a truthful description of the police officer's basis to
arrest Plaintiff. To accept the truth of the documents offered
by Defendants at this stage would amount to a premature
determination that the arresting officers and the alleged victim
are more credible than Plaintiff. To make such a determination
at this stage would not be appropriate, and therefore the Court
will not consider the facts adduced in these documents. The
Court will, however, take judicial notice of the existence of
the criminal complaint, supporting affidavit, and order of
protection. See Williams v. City of New York, No. 14-cv-5123,
2015 WL 4461716, *1 (S.D.N.Y. July 21, 2015) (noting that
the court “may take judicial notice of the procedural history
of plaintiff's criminal case, but not of the truth of the arresting
officers’ version of events”); see also Ribaudo v. Desimone,
No. 3:18-cv-1190, 2019 WL 1906269, *4 (M.D. Pa. Apr. 5,
2019) (holding that “even if judicial notice is taken of these
documents, ‘a court may take notice of such documents only
to establish their existence and legal effect, or to determine
what statements they contained ... not for the truth of the
matters asserted’ ”) (quoting Fine v. ESPN, Inc., 11 F. Supp.
3d 209, 223 (N.D.N.Y. 2014)) (other citation omitted).
C. Monell and Supervisory Liability
*4 “Under the standards of Monell v. Department of Social
Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611
(1978), a municipality can be held liable under [42 U.S.C. §
1983] if the deprivation of the plaintiff's rights under federal
law is caused by a governmental custom, policy, or usage of
the municipality.” Jones v. Town of E. Haven, 691 F.3d 72, 80
(2d Cir. 2012). Liability under Section 1983 “is imposed on
the municipality [only] when it has promulgated a custom or
policy that violates federal law and, pursuant to that policy, a
municipal actor has tortiously injured the plaintiff.” Askins v.
Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013). “Absent such a
custom, policy, or usage, a municipality cannot be held liable
on a respondeat superior basis for the tort of its employee.”
Jones, 691 F.3d at 80. Thus, for a municipality to be held
liable under Section 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) (internal quotation marks omitted).
“Supervisory liability is a concept distinct from municipal
liability, and is ‘imposed against a supervisory official in his
individual capacity for his own culpable action or inaction
in the training, supervision, or control of his subordinates.’
” Kucera v. Tkac, No. 5:12-cv-264, 2013 WL 1414441, *4
(D. Vt. Apr. 8, 2013) (quoting Odom v. Matteo, 772 F. Supp.
2d 377, 403 (D. Conn. 2011)). Prior to the Supreme Court's
decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Second
Circuit required a plaintiff to allege one of the following
categories for supervisory liability under § 1983:
(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
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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 [persons]
by failing to act on information
indicating that unconstitutional acts
were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
In order to succeed on his Monell and supervisory liability
claims, a plaintiff must first “identify obvious and severe
deficiencies” in the policies of the municipal and supervisory
defendants and “show a causal relationship” between
those deficiencies and his alleged deprivations. Reynolds
v. Giuliani, 506 F.3d 183, 193 (2d Cir. 2007). However,
to the extent that a plaintiff premises his claims on a
failure to train or supervise, such failure “may constitute
an official policy or custom [only] if the failure amounts
to ‘deliberate indifference’ to the rights of those with
whom the city employees interact.” Wray, 490 F.3d at 195.
Similarly, a supervisory defendant is liable only for the
creation or continuation of policy that leads to a pattern
of unconstitutional conduct or if he demonstrated deliberate
indifference in failing to act on information that a pattern of
unconstitutional conduct was occurring. See Colon, 58 F.3d
at 873.
“To establish deliberate indifference a plaintiff must show that
a policymaking official was aware of constitutional injury, or
the risk of constitutional injury, but failed to take appropriate
action to prevent or sanction violations of constitutional
rights.” Jones, 691 F.3d at 81.
A pattern of similar constitutional
violations by untrained employees is
“ordinarily necessary” to demonstrate
deliberate indifference for purposes of
failure to train [or supervise because]
[w]ithout notice that a course of
training is deficient in a particular
respect, decisionmakers can hardly
be said to have deliberately chosen
a training program that will cause
violations of constitutional rights.
*5 Connick v. Thompson, 563 U.S. 51, 62 (2011) (quoting
Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397,
409, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997)). “[W]hen
city policymakers are on actual or constructive notice that
a particular omission in their training program causes city
employees to violate citizens’ constitutional rights, the city
may be deemed deliberately indifferent if the policymakers
choose to retain that program.” Id. at 61 (citation omitted). 1
1 As discussed in more detail below, Plaintiff's
complaint fails to set forth any facts sufficient
to find either supervisory or municipal liability
against any of the named Defendants for any of the
listed causes of action.
D. Cayuga County District Attorney's Office and
Auburn Police Department
Plaintiff names the Cayuga County District Attorney's Office
as a named Defendant in this case. The caselaw is clear,
however, that a district attorney's office is not an entity subject
to suit under 42 U.S.C. § 1983. See Michels v. Greenwood
Lake Police Dep't, 387 F. Supp. 2d 361, 367 (S.D.N.Y.
2005) (citing cases); Griffith v. Sadri, No. 07-CV-4824,
2009 WL 2524961, *8 (E.D.N.Y. Aug. 14, 2009). Similarly,
Plaintiff has listed the Auburn Police Department as an entity
responsible for several of the alleged constitutional violations.
See Dkt. No. 5 at ¶¶ 51-82. As with the District Attorney's
Office, the Auburn Police Department (which is not listed as
a Defendant in the caption of the complaint), the Court finds
that it must be dismissed because a police department is not
an independent, suable entity separate from the municipality
in which the police department is located. See Jenkins v.
City of New York, 478 F.3d 76, 93 (2d Cir. 2007) (citation
omitted); Krug v. City of Rennselaer, 559 F. Supp. 2d 223, 247
(N.D.N.Y. 2008) (citing cases); Koulkina v. City of New York,
559 F. Supp. 2d 300, 315 (S.D.N.Y. 2008) (citing cases).
Accordingly, the Court dismisses Plaintiff's claims against the
Cayuga County District Attorney's Office and the Auburn
Police Department.
E. False Arrest
In their motion to dismiss, Defendants contend that, based
on Plaintiff's own allegations, probable cause was present
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to believe that he committed the offense for which he was
arrested. See Dkt. No. 9-1 at 14-16. Defendants claim that
Plaintiff “admits that he was charged with violating duly
issued orders of protection issued for Linda Fitzsimmons and
Lee Joyner, who reside at 140 Wall Street in the City of
Auburn. See id. at 15 (citing Dkt. No. 5 at ¶ 24). Defendants
further claim that Plaintiff “admits he was ‘driven by’ 140
Wall Street on August 10, 2018.” Id. (citing Dkt. No. 5 at ¶
25). Defendants contend that the fact that Plaintiff claims that
he was not driving the vehicle “has no bearing on whether the
order of protection was reasonably deemed violated by police
authorities, and Plaintiff is careful not to deny that he was
in fact at 140 Wall Street on the date in question, which is a
per se violation of the order.” Id. In response, Plaintiff argues
that since he “was arrested for traveling on a public road in
route to his own home and in violation of no Order, law or
ordinance and, as it cannot be denied that he was ‘no billed’
by the Grand Jury, it would seem plausible to this writer that
any court would agree to the plausibility of Plaintiff's claims.”
Dkt. No. 10 at 16.
*6 In assessing Fourth Amendment claims of false arrest
brought under Section 1983, courts generally look to the law
of the state in which the arrest is alleged to have occurred. See
Russo v. City of Bridgeport, 479 F.3d 196, 203 (2d Cir. 2007)
(citation omitted). To prevail on a false arrest claim under
New York law, a plaintiff has to prove the following: “(1) the
defendant intended to confine the plaintiff, (2) the plaintiff
was conscious of the confinement, (3) the plaintiff did not
consent to the confinement and (4) the confinement was not
otherwise privileged.” Singer v. Fulton Cnty. Sheriff, 63 F.3d
110, 118 (2d Cir. 1995) (alteration and internal quotation
marks omitted) (quoting Broughton v. State, 37 N.Y.2d 451,
456, 373 N.Y.S.2d 87, 335 N.E.2d 310 (1975)); see also
Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir.
2012) (outlining the elements of false arrest claims). “The
existence of probable cause to arrest constitutes justification
and ‘is a complete defense to an action for false arrest.’ ”
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (quoting
Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)); see
also Ackerson, 702 F.3d at 19-20 (citing Weyant, 101 F.3d at
852). “A police officer has probable cause for an arrest when
he has ‘knowledge or reasonably trustworthy information
of facts and circumstances that are sufficient to warrant a
person of reasonable caution in the belief that the person
to be arrested has committed or is committing a crime[.]’ ”
Swartz v. Insogna, 704 F.3d 105, 111 (2d Cir. 2013) (quoting
Weyant, 101 F.3d at 852); Gonzalez v. City of Schenectady,
728 F.3d 149, 155 (2d Cir. 2013) (same). Such knowledge
or information can be based on information provided by an
eyewitness, unless the circumstances would raise a doubt as
to the eyewitness’ veracity. See Curley v. Vill. of Suffern, 268
F.3d 65, 70 (2d Cir. 2001) (citing Singer, 63 F.3d at 119). The
question is whether the facts known to the arresting officer, at
the time of the arrest, objectively provided probable cause to
support the arrest. See Gonzalez, 728 F.3d at 155.
In the present matter, the Court finds that Defendants’ motion
to dismiss Plaintiff's false arrest claim must be denied as to
Defendant Spinelli. The complaint sufficiently alleges, albeit
barely, that Defendant Spinelli lacked probable cause to arrest
Plaintiff for the crime of Criminal in the First Degree. Indeed,
it is unclear from the complaint whether Plaintiff's conduct
was, in fact, in violation of the order of protection. 2
2 Although the Court is permitting this claim against
Defendant Spinelli to survive, the Court has
serious doubts about whether the claim would
survive a properly supported motion for summary
judgment. If the Court were to consider the
contents of the criminal complaint, supporting
affidavit, and Defendant Spinelli's narrative, the
claim would undoubtedly be dismissed. This,
however, highlights why the Court believes that
it is inappropriate to rely on the contents of these
documents at this stage. Without the benefit of
discovery, Plaintiff has been unable to question
the veracity of the statements contained in those
documents. That being said, the criminal complaint
and affidavits paint a much less sympathetic picture
than the one set out in Plaintiff's complaint.
However, to the extent that Plaintiff attempts to assert a
false arrest claim against any other named Defendant, the
claim must be dismissed. Plaintiff's complaint is devoid
of any facts that would permit the Court to find that any
other Defendant was personally involved in the alleged false
arrest. Aside from conclusory allegations merely reciting
the underlying law, Plaintiff fails to include any facts that
plausibly allege the personal involvement of any municipal
or supervisory Defendant. For example, Plaintiff alleges that
“Defendant Butler, Defendant City and Defendant County
have created and tolerated an atmosphere of lawlessness, and
have developed and maintained long-standing, department-
wide customs, law enforcement related policies, procedures,
customs, practices, and/or failed to properly train and/or
supervise its officers in a manner amounting to deliberate
indifference to the constitutional rights of Plaintiff and of the
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public.” Dkt. No. 78 at ¶ 78. While this allegation accurately
reflects what is required to hold municipal and supervisory
officials personally liable for the acts of other, the simple
recitation of the relevant law is insufficient to withstand a
motion to dismiss. Rather, Plaintiff was required to allege
facts, specific to his case, demonstrating how these municipal
and supervisory Defendants were personally involved in the
alleged unconstitutional conduct, which he has failed to do.
Simply put, the legal conclusions in Plaintiff's complaint,
devoid of any supporting facts, fail to plausibly allege
supervisory or municipal liability as to this claim.
*7 Accordingly, the Court denies Defendants’ motion to
dismiss Plaintiff's false arrest claim as to Defendant Spinelli.
F. Malicious Prosecution
In their motion to dismiss, Defendants argue that Plaintiff's
malicious prosecution must be dismissed because the
complaint fails to set forth facts plausibly alleging that the
prosecution was initiated without probable cause or that any
named Defendant acted with the requisite malice. See Dkt.
No. 9-1 at 16-17. In response, Plaintiff states as follows: “As
the plaintiff was arrested for traveling on a public road in
route to his own home and in violation of no Order, law
or ordinance, as it cannot be denied that he was ‘no billed’
by the Grand Jury and as he spent 53 days in jail for no
reason whatsoever, it would seem plausible to this writer
that any court would agree to the plausibility of Plaintiff's
claims.” Dkt. No. 10 at 17 (citing Swierkiezicz v. Sorema, 534
U.S. 506 (2002)). Plaintiff brings his malicious prosecution
claim against the City of Auburn, Auburn Police Department,
Cayuga County, and Defendant Butler. See Dkt. No. 5 at ¶¶
51-82. While Plaintiff may be confident in the viability of his
claim, this Court finds that Plaintiff has failed to plausibly
allege facts supporting a claim for malicious prosecution. 3
3 Throughout his response, Plaintiff repeatedly states
that “the Court is respectfully reminded that it
may dismiss a complaint only if it is clear that no
relief could be granted under any set of facts that
could be proved consistent with the allegations.”
See, e.g., Dkt. No. 10 at 17, 18 (citing Hishon
v. King & Spalding, 467 U.S. 69, 73). Further,
Plaintiff repeatedly contends that he “has no
duty at this stage to prove his case.” Id. These
basic tenets are not in dispute. What Plaintiff
fails to appreciate, however, is that a complaint
must be supported by facts specific to his case,
not merely broad assertions of the relevant law
poorly disguised as facts. For example, Plaintiff
alleges that Defendants engaged in “extreme and
outrageous conduct,” but fails to explain how any
of the conduct alleged could possibly be considered
extreme and outrageous. Further, Plaintiff seems to
be operating under the assumption that the Court is
required to use its imagination to come up with a
hypothetical set of facts that could have been pled
that would render the claims plausible. Iqbal and
Twombly, however, place no such burden on the
Court. Rather, it is incumbent on the plaintiff to set
forth the necessary facts specific to his or her case
to render the asserted claims plausible.
To prevail on a Section 1983 claim for malicious prosecution,
“a plaintiff must show a violation of his rights under the
Fourth Amendment ... and must establish the elements of a
malicious prosecution claim under state law.” Manganiello v.
City of New York, 612 F.3d 149, 161 (2d Cir. 2010) (citations
omitted). Under New York law, a plaintiff must plausibly
allege four elements to support a malicious prosecution
claim: “ ‘(1) the initiation or continuation of a criminal
proceeding against plaintiff; (2) termination of the proceeding
in plaintiff's favor; (3) lack of probable cause for commencing
the proceeding; and (4) actual malice as a motivation for
defendant's actions.’ ” Id. (quotation and other citations
omitted); see also Dufort v. City of New York, 874 F.3d
338, 350 (2d Cir. 2017) (quotation omitted). Initiating a
criminal proceeding against a person without probable cause,
coupled with a deprivation of liberty, is a Fourth Amendment
violation. See Murphy v. Lynn, 118 F.3d 938, 944-45 (2d Cir.
1997) (citation omitted).
*8 The Second Circuit has held that although “police
officers do not generally “commence or continue” criminal
proceedings against defendants, a claim for malicious
prosecution can still be maintained against a police officer if
the officer is found to ‘play[ ] an active role in the prosecution,
such as giving advice and encouragement or importuning the
authorities to act.’ ” Bermudez v. City of New York, 790 F.3d
368, 377 (2d Cir. 2015) (quotations omitted). “This element
might be satisfied by, for example, showing that an officer
generated witness statements or was regularly in touch with
the prosecutor regarding the case.” Id. (citation omitted).
Recently, the New York Court of Appeals acknowledged that
it has “ ‘never elaborated on how a plaintiff in a malicious
prosecution case demonstrates that the defendant commenced
or continued the underlying criminal proceeding.’ ” Torres
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v. Jones, 26 N.Y.3d 742, 760-61 (2016) (quotation omitted).
“But, by suggesting that a defendant other than a public
prosecutor may be liable for supplying false information to
the prosecutor in substantial furtherance of a criminal action
against the plaintiff, we have implicitly recognized that such
conduct may, depending on the circumstances, constitute the
commencement or continuation of the prosecution.” Id. at 761
(citations omitted); see also Colon v. City of New York, 60
N.Y.2d 78, 82 (1983) (noting that proof establishing “that the
police witnesses” have falsified evidence may create liability
for malicious prosecution); Hopkinson v. Lehigh Val. R.R. Co.,
249 N.Y. 296, 300-01 (1928) (noting that the falsification of
evidence and presentation of that evidence to the prosecutor
can constitute commencement of a prosecution).
1. Initiation of Criminal Prosecution
In the present matter, the Court finds that Plaintiff's malicious
prosecution claim must be dismissed. Initially, the Court
finds that Plaintiff has failed to adequately allege that any
named Defendant initiated that the prosecution against him.
While Defendant Spinelli filed the criminal complaint against
him, nothing in the complaint suggests his participation
in Plaintiff's prosecution beyond that. Nearly all cases in
which law enforcement officers were found to have initiated
or continued a prosecution for purposes of a malicious
prosecution claim involve officers who provided knowingly
false and/or fabricated evidence to unwitting prosecutors.
See, e.g., Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130
(2d Cir. 1997); Ramos v. City of New York, 285 A.D.2d
284, 299 (1st Dep't 2001). There is a rebuttable presumption
that criminal proceedings are initiated by prosecutors, not
arresting officers. See Mitchell v. Victoria Home, 434 F. Supp.
2d 219, 228 (S.D.N.Y. 2006) (citation omitted). “[I]n the
absence of evidence that the police officer misled or pressured
the official who could be expected to exercise independent
judgment,” a claim of malicious prosecution against the
officer must fail. See Townes v. City of New York, 176 F.3d
138, 147 (2d Cir. 1999) (citations omitted).
Plaintiff's complaint is devoid of any allegations that
Defendant Spinelli engaged in any of the conduct identified
above that would permit the Court to find that Plaintiff
plausibly alleged that any party other than the District
Attorney initiated the prosecution against him. As such, the
Court finds that Plaintiff's malicious prosecution claim is
subject to dismissal.
2. Malice
Plaintiff's complaint is also devoid of any facts supporting
an inference that the prosecution was instituted with malice.
As Defendants correctly note, Plaintiff misconstrues the
standard on a motion to dismiss. While Plaintiff is not
required to “prove” that Defendants acted in a malicious
manner to sustain his claim, he is certainly required to plead
enough facts that would make such a conclusion plausible.
Plaintiff's complaint fails to plead any facts that would
support the inference that any named Defendant (or their
employees) acted with the requisite malice to support a
malicious prosecution claim. Rather, the complaint simply
alleges that he was subjected to normal processes of law. The
number of days that Plaintiff spent in jail is irrelevant to this
consideration, as is the fact that he was “no billed” by the
Grand Jury. Plaintiff does not allege that he had previous
interactions with any of the named Defendants, or that his
interactions with them during his arrest and subsequent
prosecution would indicate a malicious intent. Finally, as
to the supervisory and municipal Defendants, Plaintiff has
failed to put forth any facts in support of this claim. Rather,
the complaint contains nothing but legal conclusions without
providing any basis for the Court to conclude that Plaintiff has
plausibly alleged a malicious prosecution claim against these
Defendants.
*9 Accordingly, the Court finds that Plaintiff's malicious
prosecution claim is subject to dismissal on this alternative
ground.
3. Prosecutorial Immunity
Prosecutors sued under 42 U.S.C. § 1983 enjoy absolute
immunity “ ‘from claims for damages arising out of
prosecutorial duties that are “intimately associated with
the judicial phase of the criminal process.” ’ ” Okongwu
v. County of Erie, No. 14CV832, 2017 WL 2686454, *3
(W.D.N.Y. June 22, 2017) (quoting Doe v. Phillips, 81 F.3d
1204, 1209 (2d Cir. 1996) (quoting Imbler v. Pachtman, 424
U.S. 409, 430 (1976))). The prosecutor enjoys this absolute
immunity because he or she is acting in a quasi-judicial
capacity. See Okongwu v. County of Erie, No. 14CV832,
2018 WL 1383233, *3 (W.D.N.Y. Mar. 19, 2018). The
function performed by the prosecutor defines the scope of
this immunity. See Imbler, 424 U.S. at 430; Warney, 587 F.3d
at 121. Acts of advocacy before a court, or preparation to
advocate, are absolutely immune, Imbler, 424 U.S. at 430-31;
see also Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993),
while administrative duties or investigatory functions are not
so immune, Imbler, 424 U.S. at 431 n.33; Buckley, 509 U.S. at
273; Warney, 587 F.3d at 121. “This protection encompasses
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‘all of their activities that can fairly be characterized as
closely associated with the conduct of litigation or potential
litigation.’ ” Peters, 848 F. Supp. 2d at 385 (quoting Barrett v.
United States, 798 F.2d 565, 571-72 (2d Cir. 1986)). As noted
by the Second Circuit, “thus, to establish [absolute] immunity,
the ‘ultimate question’ is ‘whether the prosecutors have
carried their burden of establishing that they were functioning
as “advocates” when they engaged in the challenged conduct.’
” Warney, 587 F.3d at 121 (quoting Doe v. Phillips, 81 F.3d
1204, 1209 (2d Cir. 1996)).
Absolute immunity extends from the initiation of a
prosecution and presenting a case at trial, Boria v. Hicks, No.
5:17-CV-00486, 2017 WL 2983304, *4 (N.D.N.Y. June 14,
2017), through the decision to end it, see Okongwu, 2017
WL 2686454, at *4, as well as post-conviction defense of
proceedings and the decision whether to vacate a conviction,
Warney, 587 F.3d at 123; Peters, 848 F. Supp. 2d at 387.
Absolute immunity applies in the preparation for the initiation
of judicial proceedings, but not to the investigative or
administrative duties of a prosecutor. See Warney, 587 F.3d at
122. In Peters, the court listed activities that are investigative
or administrative that do not deserve absolute immunity,
such as orchestrating a sting operation, authorizing wiretaps,
coercing confidential informant to consent to a wire, releasing
information to the media, assisting in the execution of a
warrant, or supervising and interacting with law enforcement
agents to acquire evidence. See Peters, 848 F. Supp. 2d at 386
(citing cases).
In the present matter, the Court finds that Defendant
Budelmann, as Cayuga County District Attorney is entitled
to absolute prosecutorial immunity. In the complaint, Plaintiff
alleges that “[o]n October 4, 2018, Defendant district attorney
presented Plaintiff's criminal charges to the Grand Jury of
Cayuga County where the grand jury ‘No Billed’ the case;
and Plaintiff was released from his illegal confinement at
the Cayuga County Jail.” Dkt. No. 5 at ¶¶ 26, 91. Further,
Plaintiff claims that “Defendant district attorney knew at the
time of Plaintiff's case being presented to the Grand Jury of
Cayuga County that he would not prevail due to the lack of
probable cause.” Id. at ¶ 29. These allegations make clear
that Defendant Budelmann has been sued relating to his role
in presenting the case to the grand jury; conduct for which
he is entitled to absolute prosecutorial immunity. See Hill
v. City of New York, 45 F.3d 653, 661-62 (2d Cir. 1995)
(holding that “that prosecutors are immune from § 1983
liability for their conduct before a grand jury”) (citations
omitted); Bernard v. County of Suffolk, 356 F.3d 495, 505 (2d
Cir. 2004) (citations omitted). Accordingly, Plaintiff's claim
of malicious prosecution against Defendant Budelmann is
subject to dismissal on this alternative ground.
*10 Finally, to the extent that Plaintiff seeks to impute
the conduct of Defendant Budelmann to Cayuga County, the
claim must necessarily be dismissed. The Second Circuit
Court of Appeals has unequivocally held that “prosecutorial
acts may not fairly be said to represent official policy of
the County,” because “[w]hen prosecuting a criminal matter,
a district attorney in New York State, acting in a quasi-
judicial capacity, represents the State not the county.” Baez
v. Hennessy, 853 F.2d 73 (2d Cir. 1988) (internal quotation
omitted); see also Doe v. Smith, 704 F. Supp. 1177, 1184
(S.D.N.Y. 1988). Since Defendant Budelmann was acting on
behalf of the State of New York, and not Cayuga County, any
alleged misconduct on Defendant Budelmann's part cannot be
imputed to Cayuga County.
G. Negligent/Intentional Infliction of Emotional Distress
In his sixth cause of action, Plaintiff alleges claims of
negligent and intentional infliction of emotional distress
against Defendants Butler, Spinelli, and Budelmann. See Dkt.
No. 5 at ¶¶ 96-98. Defendants contend these claims fail as a
matter of law. See Dkt. No. 9-1 at 19-20.
As to the claim of negligent infliction of emotional distress,
it is well settled that a “ ‘plaintiff seeking damages for an
injury resulting from a wrongful arrest and detention may
not recover under broad general principles of negligence ...
but must proceed by way of the traditional remedies of false
arrest and imprisonment.’ ” Greenaway v. Cty. of Nassau,
97 F. Supp. 3d 225, 239 (E.D.N.Y. 2015) (quoting Secard
v. Dep't of Soc. Servs. of Cnty. of Nassau, 204 A.D.2d 445,
612 N.Y.S. 2d 167, 168 (2d Dep't 1994)). This is precisely
what Plaintiff is attempting to do here. Tacking on a claim
for negligent infliction of emotional distress without any
other facts or assertions is insufficient under the relevant law.
Moreover, even if this claim could be considered independent
of Plaintiff's false arrest claim, it is still subject to dismissal
because Plaintiff has not alleged any facts demonstrating that
Defendants breached a duty owed to Plaintiff. As such, the
Court grants Defendants’ motion to dismiss as to Plaintiff's
claim of negligent infliction of emotional distress.
As to the intentional infliction of emotional distress claim,
it too must be dismissed. “Intentional infliction of emotional
distress has four elements: ‘(i) extreme and outrageous
conduct; (ii) intent to cause, or disregard of a substantial
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probability of causing, severe emotional distress; (iii) a causal
connection between the conduct and injury; and (iv) severe
emotional distress.’ ” Greenaway, 97 F. Supp. 3d at 239-40
(quoting Howell v. N.Y. Post Co., Inc., 81 N.Y.2d 115, 596
N.Y.S. 2d 350, 612 N.E. 2d 699, 702 (1993)). “The ‘extreme
and outrageous conduct’ must ‘go beyond all possible bounds
of decency’ and be ‘atrocious, and utterly intolerable in
a civilized community.’ ” Id. (quotation and other citation
omitted).
Here, Plaintiff claims that Defendants Budelmann, Spinelli,
and Butler engaged in “extreme and outrageous conduct,
which intentionally and/or negligently caused severe
emotional distress to Plaintiff.” Dkt. No. 5 at ¶ 97. Notably
absent from the complaint is any explanation what this
“extreme and outrageous conduct” was. “ ‘Liability has been
found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community.’ ” Murphy v.
American Home Products Corp., 58 N.Y.2d 293, 302 (1983)
(quotation omitted). The threadbare facts alleged by Plaintiff,
which include the fact that he was arrested and eventually
released after the grand jury refused to indict, fall far short of
this strict standard.
*11 Accordingly, the Court grants Defendants’ motion
to dismiss Plaintiff's claims for negligent and intentional
infliction of emotional distress.
H. Negligence
In his seventh cause of action, Plaintiff asserts a claim for
negligence. See Dkt. No. 5 at ¶¶ 100-04. In this claim, Plaintiff
argues that his arrest, Defendants’ failure to “follow the
criminal law of the State of New York,” and Plaintiff's fifty-
three days of incarceration, were the product of Defendants’
negligence. See id.
“To prevail on a claim for negligence under New York law,
a plaintiff must establish ‘(1) the existence of a duty on
the defendant's part as to the plaintiff; (2) a breach of that
duty; and (3) resultant injury to the plaintiff.’ ” Frederique v.
County of Nassau, 168 F. Supp. 3d 455, 485 (E.D.N.Y. 2016)
(quotation omitted). “However, ‘[u]nder New York law, harm
predicated on an intentional act may not give rise to a claim
of negligence.’ ” Id. (quotation and other citation omitted).
Moreover, it is well settled that, “[u]nder New York law, a
plaintiff may not recover under general negligence principles
for a claim that law enforcement officers failed to exercise the
appropriate degree of care in effecting an arrest or initiating
a prosecution.” Bernard v. United States, 25 F.3d 98, 102
(2d Cir. 1994) (citing Boose v. City of Rochester, 71 A.D.2d
59, 421 N.Y.S.2d 740, 743 (4th Dept. 1979)) (other citation
omitted).
In the present matter, the Court finds that Plaintiff's
negligence claim must be dismissed as it is simply redundant
of Plaintiff's claims of false arrest, false imprisonment,
and malicious prosecution. Accordingly, the Court grants
Defendants’ motion to dismiss as to this claim.
I. Deliberate Indifference to Serious Medical Needs
In his eighth cause of action, Plaintiff claims that “Defendant
Medical Staff and Defendant Cayuga County Sheriff's
Department” were deliberately indifferent to his medical care
and treatment after he was injured when a water pipe broke
outside his cell on August 31, 2018. See Dkt. No. 5 at ¶¶
105-14.
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 Eight Amendment. See Darnell v.
Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (citations omitted).
A pretrial detainee's claims are evaluated under the Due
Process Clause 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.
(quotations omitted).
“A pretrial detainee may establish a § 1983 claim for
allegedly unconstitutional conditions of confinement by
showing that the officers acted with deliberate indifference to
the challenged conditions.” Darnell, 849 F.3d at 29 (citation
omitted). “This means that a pretrial detainee must satisfy
two prongs to prove a claim, an ‘objective prong’ showing
that the challenged conditions were sufficiently serious to
constitute objective deprivations of the right to due process,
and a ‘subjective prong’ — perhaps better classified as a
‘mens rea prong’ or ‘mental element prong’ — showing
that the officer acted with at least deliberate indifference to
the challenged conditions.” Id. “The reason that the term
‘subjective prong’ might be a misleading description is that,
as discussed below, the Supreme Court has instructed that
‘deliberate indifference’ roughly means ‘recklessness,’ but
‘recklessness’ can be defined subjectively (what a person
actually knew, and disregarded), or objectively (what a
reasonable person knew, or should have known).” Id. (citing
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Farmer v. Brennan, 511 U.S. 825, 836-37, 114 S. Ct. 1970,
128 L. Ed. 2d 811 (1994)).
*12 Under both the Eighth and Fourteenth Amendments,
to establish an objective deprivation, “the inmate must show
that the conditions, either alone or in combination, pose
an unreasonable risk of serious damage to his health,”
which includes the risk of serious damage to “physical and
mental soundness.” Id. at 30 (citations omitted). “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) (citing
Rhodes v. Chapman, 452 U.S. 337, 346, 101 S. Ct. 2392,
69 L. Ed. 2d 59 (1981))). For example, the Second Circuit
has “ ‘held that prisoners may not be deprived of their basic
human needs — e.g., food, clothing, shelter, medical care,
and reasonable safety — and they may not be exposed to
conditions that pose an unreasonable risk of serious damage
to [their] future health.’ ” Id. (quoting Jabbar v. Fischer, 683
F.3d 54, 57 (2d Cir. 2012)).
“ ‘[C]onditions of confinement may be aggregated to rise to
the level of a constitutional violation, but only when they
have a mutually enforcing effect that produces the deprivation
of a single, identifiable human need such as food, warmth,
or exercise.’ ” Darnell, 849 F.3d at 30 (quotations omitted).
“Unsanitary conditions, especially when coupled with other
mutually enforcing conditions, such as poor ventilation and
lack of hygienic items (in particular, toilet paper), can rise to
the level of an objective deprivation.” Id. (citations omitted).
The second element of a conditions of confinement claim
brought under the Due Process Clause of the Fourteenth
Amendment is the defendant's “deliberate indifference”
to any objectively serious condition of confinement. See
Darnell, 849 F.3d at 32. Courts have traditionally referred
to this second element as the “subjective prong.” “But
‘deliberate indifference,’ which is roughly synonymous with
‘recklessness,’ can be defined either ‘subjectively’ in a
criminal sense, or ‘objectively’ in a civil sense.” Id. As such,
the “subjective prong” might better be described as the “mens
rea prong” or “mental element prong.” Id.
Under the second prong of the deliberate indifference
analysis, the Court must consider whether the defendants
“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 [they] knew, or should have known, that the condition
posed an excessive risk to health or safety.” Darnell, 849 F.3d
at 35. Under this standard, the plaintiff “must prove that [the
defendants] acted intentionally or recklessly, and not merely
negligently.’ ” Id. at 36.
In the present matter, the Court finds that Plaintiff has failed
to plausibly allege a claim of deliberate indifference under
the Fourteenth Amendment. Initially, the Court notes that the
“medical staff” at the Cayuga County Jail were not named
as defendants in this action. Rule 10(a) requires a plaintiff
to “name all the parties” in the Complaint. See Fed. R. Civ.
P. 10(a). Although the naming of pseudonymous defendants
is permissible where a plaintiff requires discovery to learn
the true identities of the defendants, the plaintiff subsequently
must amend the complaint to reflect the discovered identities
and effect service on the named parties within the 120-day
time period set forth in Rule 4(m). See Petty v. Cty. of
Franklin, 478 F.3d 341, 345–46 (6th Cir. 2007).
Here, Plaintiff has not brought suit against any pseudonymous
defendants, and only makes reference to these unidentified
individuals in the body of the complaint. If Plaintiff had
intended to sue then-unknown members of the medical staff
at the jail, he should have brought suit against “John and/
or Jane Doe” defendants, who could be identified through
discovery. Upon obtaining their identities, Plaintiff would
then be required to amend his complaint to reflect the Doe
defendants’ identities. See Simmons v. District of Columbia,
750 F. Supp. 2d 43, 45 (D.D.C. 2011) (holding that a
plaintiff “may bring an action against unknown John Doe
defendants, but plaintiff must substitute named defendants
for those unknown defendants after the completion of
discovery”) (citations omitted); see also Estate of Rosenberg
by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995)
(holding that “[a]n action may proceed against a party whose
name is unknown if the complaint makes allegations specific
enough to permit the identity of the party to be ascertained
after reasonable discovery”). Here, Plaintiff has not brought
suit against unknown members of the medical staff at the
Cayuga County Jail or providing any facts that would permit
Defendants to assist in obtaining their identities. As such, the
only potential deliberate indifference claim asserted in the
complaint is a municipal liability claim against Defendant
Cayuga County.
*13 In his complaint, Plaintiff has alleged that a water pipe
burst outside his cell during the night, the water was turned
off, and at some point during the night it pooled near his cell's
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toilet. See Dkt. No. 5 at ¶¶ 109-13. At sometime between 6:30
a.m. and 7:00 a.m., Plaintiff claims that he got out of bed to
use the toilet in his cell and slipped and fell on the wet floor.
See id. at ¶ 110. Plaintiff alleges that, when he fell, he hit his
head and neck on his bunk and his lower back on the floor,
causing severe injuries, including a herniated disc in his neck
and lower lumbar strain. See id. at ¶¶ 111-13. Plaintiff claims
that, “[a]fter the injury up and until Plaintiff was released
on October 4, 2018[,] Plaintiff was denied medical treatment
for his injuries that he suffered inclusive of medication and
treatment from a physician.” Id. at ¶ 114.
Initially, the Court notes that nothing in the complaint
indicates that Plaintiff's alleged injury was caused by a
municipal custom, policy, or usage, as is required to find a
plausible claim against Defendant Cayuga County. Rather,
Plaintiff claims that a water pipe leaked outside his cell during
the night and that a “correctional officer ... turn[ed] off the
water and clean[ed] up the water spill. At that time, there was
no water in Plaintiff's cell.” Dkt. No. 5 at ¶ 108. When the
second pipe leaked, some water entered Plaintiff's cell, which
caused Plaintiff to fall. See id. at ¶ 109. This isolated incident,
involving a bursting water pipe, is woefully insufficient
to plausibly allege municipal liability for Plaintiff's alleged
injury. See Connick, 131 S. Ct. at 1360; see also Plair v. City
of New York, 789 F. Supp. 2d 459, 470 (S.D.N.Y. 2011) (“[I]t
is well established that a single incident does not give rise
to an unlawful practice by subordinate officials so permanent
and well-settled as to constitute custom or usage”) (internal
quotation marks omitted); Giaccio v. City of New York, 308
Fed. Appx. 470, 472 (2d Cir. 2009) (finding that allegations
of, at most, four prior incidents of misconduct “falls far short
of establishing a practice that is ‘so persistent or widespread’
as to justify the imposition of municipal liability”) (internal
quotation marks omitted).
Even assuming that Plaintiff had asserted this claim against
an individually named Defendant, the claim would still
be dismissed. To satisfy the second prong of a deliberate
indifference claim, Plaintiff must plausibly allege facts
suggesting that a defendant “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 [they] knew, or should have known,
that the condition posed an excessive risk to health or safety.”
Darnell, 849 F.3d at 35. At best, the facts set forth in the
complaint describe negligence on the part of the correctional
staff, which is insufficient to support a claim of deliberate
indifference. See id. at 36.
Finally, to the extent that Plaintiff is basing his claim on the
alleged deprivation of medical care after his accident, Plaintiff
has failed to provide any factual basis in support of his
conclusory assertion that he “was denied medical treatment
for his injuries that he suffered inclusive of medication and
treatment from a physician.” Dkt. No. 5 at ¶ 114. The
complaint fails to allege that he brought his alleged injuries to
the attention of the correctional or medical staff at the Cayuga
County jail (or even identify any such individual).
Based on the foregoing, the Court grants Defendants’ motion
to dismiss as to Plaintiff's deliberate indifference claim.
IV. CONCLUSION
After carefully the entire record in this matter, parties’
submissions and the applicable law, and for the reasons stated
herein, the Court hereby
*14 ORDERS that Defendants’ motion to dismiss (Dkt. No.
9) is GRANTED in part and DENIED in part; 4 and the
Court further
4 As a result of this Memorandum-Decision and
Order, the only remaining claim is Plaintiff's false
arrest claim against Defendant Spinelli.
ORDERS that Defendants City of Auburn, Butler, Cayuga
County, Cayuga County District Attorney's Office, and
Budelmann are TERMINATED as Defendants in this action;
and the Court further
ORDERS that Defendants’ letter motion a portion of the
argument raised in their motion to dismiss (Dkt. No. 15) is
DENIED as moot; and the Court further
ORDERS that the Clerk of the Court shall serve a copy
of this Memorandum-Decision and Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 1904088
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Joyner v. County of Cayuga
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Moye v. City of New York, Not Reported in F.Supp.2d (2012)
2012 WL 2569085
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2012 WL 2569085
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Ronald MOYE, Plaintiff,
v.
The CITY OF NEW YORK; Sgt. Nelson Caban,
P.O. Paul Jeselon, P.O. Samuel Fontanez, P.O.
Edward Simonetti, P.O. Matthew Boorman, P.O.
Frank Papa, P.O. Tawaina O'Neal, P.O. Brennan;
P.O. John; and A.D.A. Dustin Chao, Defendants.
No. 11 Civ. 316(PGG).
|
July 3, 2012.
MEMORANDUM OPINION & ORDER
PAUL G. GARDEPHE, District Judge.
*1 Plaintiff Ronald Moye has brought claims against the
City of New York, former New York County Assistant
District Attorney Dustin Chao, and eight members of the New
York City Police Department (“NYPD”) under 42 U.S.C.
§ 1983 and state law. Moye claims that Chao is liable for
damages under Section 1983 and state law for malicious
prosecution, abuse of process, denial of a fair trial, fabrication
of evidence, conspiracy “to inflict an unconstitutional injury,”
and intentional and negligent infliction of emotional distress.
(Am. Cmplt., Second, Third, Fourth, Fifth, Sixth, Seventh,
and Ninth Claims) Chao has moved to dismiss the Amended
Complaint on grounds of absolute immunity. For the reasons
stated below, Chao's motion to dismiss will be granted.
BACKGROUND
For purposes of deciding Defendant Chao's motion to dismiss,
the Court has assumed that the following facts presented in
the Amended Complaint are true.
I. MOYE'S ARREST
On or about March 12, 2002, at approximately 8:00
p.m., NYPD officers Paul Jeselson and Tawaina O'Neal
were stationed on the rooftop of an apartment building
on the south side of West 118th Street near the corner
of Morningside Avenue conducting nighttime narcotics
surveillance. (Am.Cmplt.¶¶ 19, 22) Plaintiff's car was located
on the north side of West 118th Street, near Manhattan
Avenue. (Id. ¶ 21) Officer Jeselson claimed that he observed
Plaintiff “extend his hand from the driver's side window and
hand a small glassine” to another individual—later arrested
—who, in turn, handed it to an unapprehended customer. (Id.
¶ 20) The Defendant officers moved in and arrested Moye in
the vicinity of 352 West 118th Street. (Am.Cmplt.¶¶ 12, 25)
At the time of the arrest, and later at the 28th Precinct, the
officers searched Moye and his car and found United States
currency, both in Moye's possession and inside the vehicle.
(Id. ¶ 27) The Defendant officers unnecessarily grabbed
Moye, pushed him, and placed excessively tight handcuffs on
him (id. ¶ 30), causing him to suffer bruises to and numbness
in his wrists. (Id. ¶ 32)
Moye was indicted on March 22, 2002, for Criminal
Possession of a Controlled Substance in the Third Degree.
(Am. Cmplt. ¶ 35; Schwartz Decl., Ex. A) Plaintiff alleges that
the police officer defendants “conspired [to give] and gave
false testimony and intentionally placed false evidence before
the grand jury.” 1 (Am.Cmplt.¶ 35)
1 The Amended Complaint does not disclose what
false testimony or other false evidence was laid
before the grand jury. Moreover, there is no
suggestion that Chao was involved in presenting
false testimony or false evidence to the grand jury.
II. MOYE'S FIRST TRIAL
Moye's first trial began on January 14, 2003. (Schwartz Decl.,
Ex. B) A.D.A. Chao introduced photographs at trial which
he claimed showed the position of Plaintiff s car as it was
parked on West 118th Street. (Am.Cmplt.¶ 38) Chao, Officer
Jeselson, and Officer Papa were present when a District
Attorney's office photographer took these photos in June 2002
from the March 12, 2002 observation point. (Id. ¶¶ 41–42,
44) Although the photographs were intended to convey the
vantage point of the officers on the night of the arrest, they did
not replicate the “nighttime conditions.” (Id. ¶ 45) According
to Moye, these photographs nonetheless showed that the
officers could not have seen Plaintiff extend his hand from
the driver's side window and pass a small glassine to another
individual, because the driver's side could not be seen from
the vantage point of the rooftop observation post, even with
binoculars. (Id. ¶¶ 46, 48) At trial, Officer Jeselson admitted
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that “he was not able to see the driver's side of the vehicles in
the photographs.” (Id. ¶ 47) Jeselson nonetheless claimed that
he had been able to see Moye's hand “during the nighttime
observation.” (Id. ¶ 39) The first trial ended in a mistrial, with
the jury unable to reach a verdict. (Id. ¶ 49)
III. MOYE'S SECOND TRIAL
*2 In February 2003, A.D.A. Chao, Officers Brennan
and Jeselson, and D.A's Office photographer Nancy Badger
returned to West 118th Street to take more photographs. (Id.
¶ 53) They repositioned the car on an angle in order to make
it appear that the officers would have been able to see Moye's
hand outside the driver's side window on the night of his
arrest. (Id. ¶¶ 55–60) With the car positioned in this fashion,
Jeselson and Chao instructed Badger to take photographs of
Officer Brennan's hand outside the driver's side window in an
effort to simulate what the officers would have seen that night.
(Id. ¶¶ 60–61) Jeselson and Chao then had Brennan move the
car back to a curbside position “where additional photographs
[were] taken at a wide angle to falsely give the impression that
the close-ups were merely enlargements of the vehicle parked
along the curb.” (Id. ¶ 63)
At Moye's second trial, Chao introduced these new
photographs and elicited testimony from Jeselson in which
he used the photographs to support his claim that he was
able to see Moye's hand from the rooftop observation post.
(Id. ¶¶ 66, 74) However, Badger testified that, in taking
the new photographs, “the defendants moved the vehicle
to an angle where the hand could be visible.” Defendants
then returned the vehicle to its curbside position and took
additional photographs that “falsely give the impression that
the close-ups were merely enlargements of the vehicle parked
along the curb.” (Id. ¶¶ 81–84)
In summation, Moye's lawyer argued that Jeselson had lied
about his observations from the roof and the positioning of
the car in the photographs introduced by the prosecution.
(Id. ¶ 85) In response, A.D.A. Chao argued that Officer
Jeselson had no opportunity to frame the defendant, because
Chao had been present at the observation post:
“[Defense counsel] spoke about people on that roof.
It's in evidence. Officer Jeselson was on that roof, the
photographer Laura Badger was on the roof, and I was on
that roof. Now, if he is directing something improperly, that
is Officer Jeselson, well, it's in front of me.
“And if he knew he was going to get away with it when
I say that's the opportunity, you know [defense counsel]
talked about a lot of people losing their jobs about perjuring
themselves, about the integrity of Robert Morgenthau's
office. Well, if Officer Jeselson thought he was going to get
away with it—
“[DEFENSE counsel]: Mr. Chao is vouching for his
witness.
“THE COURT: Overruled.
“[ADA] CHAO: If Officer Jeselson thought he was going
to get away with it with me present, all that talk about firing,
that should be me because I'm prosecuting this case, not
Officer Jeselson.
“[DEFENSE counsel]: That's objectionable vouching for
his witness.
“THE COURT: Overruled.
“[DEFENSE counsel]: Your Honor, he is making himself
an unsworn witness for the credibility of his police officer.
*3 “THE COURT: Overruled.
“[ADA] CHAO: Ladies and gentlemen, Mr. Morgenthau
should fire me if Officer Jeselson thinks he is going to be
able to say that in court, lie to you, when the person who
is standing right next to him on that roof is me. Well, that
lies with me.
“So what's the explanation? If there's no motive, no
opportunity for why Ms. Badger remembers it differently.
Well, there's evidence that you heard the officer was on the
roof. Evidence that you heard I was on the roof also. I have
no other answer other than the fact that she is mistaken....
“[DEFENSE counsel]: He is vouching for his witness using
the pronoun I.
“THE COURT: Members of the jury, you can accept his
argument as to what happened on the roof. It's his argument
based upon the evidence as he recalls it.”
People v. Move, 52 A.D.3d 1, 5 (1st Dep't 2008); see also
(Am. Cmplt. ¶¶ 87–92.
Moye was convicted at his second trial and sentenced to four-
and-a-half to nine years' imprisonment. (Am.Cmplt.¶¶ 13–14)
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IV. THE CHARGES AGAINST MOYE ARE DISMISSED
On appeal, the First Department vacated the conviction in
a 3–2 decision. People v. Move, 52 A.D.3d 1. The First
Department found that “the prosecutor improperly vouched
for his witness and interjected his personal integrity and the
veracity of the District Attorney's office into his summation to
support the credibility of Police Office Jeselson.” Id. at 6. The
New York Court of Appeals agreed that Chao had engaged in
impermissible vouching for his witness, affirmed the reversal
of the conviction, and remanded the case to Supreme Court.
People v. Move, 12 N.Y.3d 743, 744 (2009). After remand,
the New York County District Attorney's Office dismissed the
case on October 21, 2009. (Am.Cmplt.¶¶ 16, 37)
DISCUSSION
I. IMMUNITY
Chao argues that the claims against him must be dismissed
because his actions are protected by absolute immunity. 2
2 Because Moye sues Defendant Chao in his
individual capacity (Am .Cmplt.¶ 9), his claims are
not barred by the Eleventh Amendment. See Ying
Jing Gan v. City of New York, 996 F.2d 522, 529
(2d Cir.1993) (“To the extent that ... a [Section
1983] claim is asserted against a [state official] in
his individual capacity, he may assert privileges of
absolute or qualified immunity but may not assert
immunity under the Eleventh Amendment.”).
Section 1983 “purports to create a damages remedy against
every state official for the violation of any person's federal
constitutional or statutory rights.” Kalina v. Fletcher, 522
U .S. 118, 123 (1997). In order to state a claim under Section
1983, a plaintiff must show that the conduct complained
of was committed by a person or entity acting under color
of state law, and that the conduct deprived a person of
rights, privileges, or immunities secured by the Constitution.
Newton v. City of New York, 566 F.Supp.2d 256, 269–70
(S.D.N.Y.2008) (citing Palmieri v. Lynch, 392 F.3d 73, 78 (2d
Cir.2004)).
“Although section 1983 imposes liability upon every person
who deprives another of a constitutional right under color of
state law, the doctrines of absolute and qualified immunity
shield prosecutors and law enforcement officers from liability
related to their official acts.” Day v. Morgenthau, 909 F.2d
75, 77 (2d Cir.1990). While Section 1983 does not explicitly
provide for such immunity, the Supreme Court and Second
Circuit have ruled that “Congress did not intend § 1983 to
abrogate immunities ‘well grounded in history and reason.’ “
Pinaud v. Cnty. of Suffolk, 52 F.3d 1139, 1147 (2d Cir.1995)
(quoting Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993)).
*4 As the Second Circuit has explained:
Such immunities are of two types: absolute and qualified.
Buckley v. Fitzsimmons, 509 U.S. 259, 268, 113 S.Ct.
2606, 125 L.Ed.2d 209 (1993). Absolute immunity is
reserved for officials who perform “special functions” and
deserve absolute protection from damages liability. Among
these are prosecutors, and persons working under their
direction, when they function as advocates for the state
in circumstances “intimately associated with the judicial
phase of the criminal process.” Imbler v. Pachtman, 424
U.S. at 430–31. See also Hill v. City of New York, 45 F.3d at
660 (extending absolute prosecutorial immunity to persons
acting under the direction of prosecutors in performing
functions closely tied to the judicial process).
By contrast, only qualified immunity applies to law
enforcement officials, including prosecutors, when they
perform investigative functions. Buckley v. Fitzsimmons,
509 U.S. at 273. (“When a prosecutor performs the
investigative functions normally performed by a detective
or police officer, it is neither appropriate nor justifiable
that, for the same act, immunity should protect the one
and not the other.”) (internal quotation marks and citations
omitted); accord Zahrey v. Coffey, 221 F.3d 342, 349 (2d
Cir.2000).
Bernard v. Cnty. of Suffolk, 356 F.3d 495, 502–03 (2d
Cir.2004).
Absolute immunity extends only so far as necessary to protect
the judicial process. Hill v. City of New York, 45 F.3d 653, 660
(2d Cir.1995). Nonetheless,
[t]he doctrine of absolute prosecutorial immunity creates
a formidable obstacle for a plaintiff seeking to maintain a
civil rights action against a district attorney, as it provides
that “prosecutors are absolutely immune from liability
under § 1983 for their conduct in ‘initiating a prosecution
and in presenting the State's case,’ insofar as that conduct
is ‘intimately associated with the judicial phase of the
criminal process.’ “ Burns v. Reed, 500 U.S. 478, 486, 111
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S.Ct. 1934, 1939, 114 L.Ed.2d 547 (1991) (quoting Imbler,
424 U.S. at 430–31, 96 S.Ct. at 995).
Pinaud, 52 F.3d at 1147. The Court addresses the parameters
of absolute prosecutorial immunity below.
A. Legal Standard for Absolute Prosecutorial Immunity
A prosecutor who, as here, is sued in his or her individual
capacity, may assert absolute or qualified immunity as
a defense. Courts may grant a Rule 12(b)(6) motion to
dismiss on grounds of absolute immunity where the facts
establishing the defense appear in the complaint. Deronette
v. City of New York, No. 05 CV 5275(SJ), 2007 WL 951925,
at *4 (E.D.N.Y. Mar. 27, 2007) (citing Hill, 45 F.3d at
663) (absolute immunity may be decided on a Rule 12(b)
(6) motion where facts establishing the defense may be
“gleaned from the complaint”)). Moreover, district courts
are encouraged to determine the applicability of an absolute
immunity defense at the earliest appropriate stage, and
preferably before discovery. 3 Id. (citing Mitchell v. Forsyth,
472 U.S. 511, 526 (1985)); United States v. Colbert, No. 87
Civ. 4789, 1991 WL 183376 at *4 (S.D.N.Y. Sept. 11, 1991).
This approach is appropriate given that “absolute immunity
defeats a suit at the outset, so long as the official's actions
were within the scope of the immunity.” Imbler, 424 U.S. at
419 n. 13. “[T]he official seeking absolute immunity bears
the burden of showing that such immunity is justified for the
function in question.” Buckley, 509 U.S. at 270 (1993) (citing
Burns, 500 U.S. at 486).
3 District courts likewise evaluate the applicability
of absolute immunity before assessing whether a
plaintiff has sufficiently alleged a constitutional
violation. Pinaud, 52 F.3d at 1148 n. 4 (citing
Buckley, 509 U.S. at 261).
*5 Prosecutorial immunity to Section 1983 claims is
grounded in the immunity to tort liability that prosecutors
enjoy under the common law. Flagler v. Trainor, 663 F.3d
543, 546 (2d Cir.2011) That immunity arises from the
“concern that harassment by unfounded litigation would
cause a deflection of the prosecutor's energies from his public
duties, and the possibility that he would shade his decisions
instead of exercising the independence of judgment required
by his public trust.” Id. (citing Imbler, 424 U.S. at 423).
Immunity protects the proper functioning of the prosecutor's
office by insulating the exercise of prosecutorial discretion.
Kalina, 522 U.S. at 125. Prosecutors are therefore “absolutely
immune from suit only when acting as advocates and when
their conduct involves the exercise of discretion.” Flagler,
663 F.3d at 546 (citing Kalina, 522 U.S. at 127).
The Supreme Court addressed the question of absolute
immunity for prosecutors in Imbler, where it held that
prosecutors are entitled to absolute immunity for damage suits
under Section 1983 for all acts “intimately associated with the
judicial phase of the criminal process,” including “initiating
a prosecution and ... presenting the State's case [at trial].”
Imbler, 424 U.S. at 430.
Later, in Buckley, 509 U.S. at 273, the Supreme Court
considered whether the prosecutor defendants were entitled to
absolute immunity for “investigative” work they performed
well before seeking an indictment, involving an effort to
connect the plaintiff to a bootprint left at a murder scene.
Although the Court rejected the prosecutors' claim for
absolute immunity, the Court cautioned that it had
not retreated ... from the principle
that acts undertaken by a prosecutor
preparing for the initiation of judicial
proceedings or for trial, and which
occur in the course of his role
as an advocate for the State, are
entitled to the protections of absolute
immunity. Those acts must include
the professional evaluation of the
evidence assembled by the police
and appropriate preparation for its
presentation at trial or before a grand
jury after a decision to seek an
indictment has been made.
Buckley, 509 U.S. at 273 (internal citations and quotations
omitted).
Whether a prosecutor has absolute immunity for a particular
act thus “depends principally on the nature of the function
performed, not on the office itself.” Ying Jing Gan v. City of
New York, 996 F.2d 522, 530 (2d Cir.1993). “Such functions
include the decision to bring charges against a defendant,
presenting evidence to a grand jury, and the evaluation of
evidence prior to trial.” Johnson v. City of New York, No. 00
CIV 3626(SHS), 2000 WL 1335865, at *2 (S.D.N.Y. Sept.
15, 2000) (citing Kalina, 522 U.S. at 126). Furthermore,
this “application of immunity is not limited to the duties a
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prosecutor performs in the courtroom.” Dory v. Ryan, 25 F.3d
81, 83 (2d Cir.1994) (citing Buckley, 509 U.S. at 272).
*6 “[A] district attorney is [not only] absolutely immune
from civil liability for initiating a prosecution and presenting
the case at trial,” but also “immune for conduct in preparing
for those functions; for example, evaluating and organizing
evidence for presentation at trial or to a grand jury, or
determining which offenses are to be charged.” Hill, 45
F.3d at 661 (citations omitted). Prosecutorial immunity from
Section 1983 damages liability is broadly defined, covering
“virtually all acts, regardless of motivation, associated with
[the prosecutor's] function as an advocate.” Dory, 25 F.3d at
83. The Second Circuit has been “mindful of the Supreme
Court's admonition that ‘the duties of the prosecutor in his
role as advocate for the State involve actions preliminary
to the initiation of a prosecution and actions apart from
the courtroom.... Preparation, both for the initiation of the
criminal process and for a trial, may require the obtaining,
reviewing, and evaluating of evidence.’ “ Barbera v. Smith,
836 F.2d 96, 100 (2d Cir.1987) (quoting Imbler, 424 U.S.
at 431 n. 33); see also Barrett v. United States, 798 F.2d
565, 571 (2d Cir.1986) (“The absolute immunity accorded
to government prosecutors encompasses not only their
conduct of trials but all of their activities that can fairly
be characterized as closely associated with the conduct of
litigation or potential litigation....”)
Because absolute immunity extends broadly to all acts
committed by a prosecutor in his or her role as an advocate, it
protects prosecutors against claims that they conspired to, or
actually presented, fabricated evidence at trial:
absolute immunity protects a prosecutor from § 1983
liability for virtually all acts, regardless of motivation,
associated with his function as an advocate. This would
even include ... allegedly conspiring to present false
evidence at a criminal trial. The fact that such a conspiracy
is certainly not something that is properly within the role
of a prosecutor is immaterial, because “[t]he immunity
attaches to his function, not to the manner in which he
performed it.” Barrett v. United States, 798 F.2d 565, 573
(2d Cir.1986); see also Daloia v. Rose, 849 F.2d 74, 75
(2d Cir.1988) (per curiam ) (holding ... that prosecutor was
immune from § 1983 liability for knowingly presenting
false testimony). As much as the idea of a prosecutor
conspiring to falsify evidence [is disturbing] ... there is
a greater societal goal in protecting the judicial process
by preventing perpetual suits against prosecutors for the
performance of their duties. See Imbler, 424 U.S. at 426–
428.
Dory, 25 F.3d at 83. 4
4 By contrast, discretionary prosecutorial actions that
are not “intimately associated with the judicial
phase of the criminal process” are entitled only to
qualified immunity. See Buckley, 509 U.S. at 270–
75; Burns, 500 U.S. at 491–95. A prosecutor is
“absolutely immune from liability under section
1983 [only] for acts ‘within the scope of [their]
duties in initiating and pursuing a criminal
prosecution.’ “ Day, 909 F.2d at 77 (quoting Imbler,
424 U.S. at 410). Thus, when a prosecutor acts in an
investigative or administrative capacity, absolute
immunity is not available. Hill, 45 F.3d at 661.
For example, immunity is not available when a
prosecutor releases information or evidence to the
media, Buckley, 509 U.S. at 276–78; authorizes or
directs the use of wiretaps, Powers v. Coe, 728 F.2d
97, 103 (2d Cir.1984); or performs the functions
normally performed by the police, such as assisting
in the execution of a search or seizure. See Buckley,
509 U.S. at 273. The Supreme Court has also
withheld absolute immunity for conduct unrelated
to advocacy, such as giving legal advice, Burns,
500 U.S. at 492–96, or acting as a complaining
witness. Kalina, 522 U.S. 118, 129–31; see also
Ying Jing Gan, 996 F.2d at 533 (finding that
prosecutor was not entitled to absolute immunity
where he allegedly exposed a witness to retaliation
and failed to provide adequate protection for the
witness).
Although courts have declined to establish a bright-line
test based on the stage of a criminal proceeding, “absolute
prosecutorial immunity has generally been found in cases
where some type of formal proceeding had been commenced
or was being commenced by the conduct at issue.” Tabor v.
New York City, No. 11 CV 0195 FB, 2012 WL 603561, at
*4 (E.D.N.Y.2012) (citing Barbera v. Smith, 836 F.2d at 99.
In contrast, where formal proceedings have not begun and
the prosecutor is acting in an investigative capacity—such
as by providing the police with legal advice on investigative
techniques—qualified immunity generally applies. Id. While
the Supreme Court has noted that a prosecutor is not
absolutely immune for every action taken after probable
cause has been established, see Buckley, 509 U.S. at 274
n. 5, “the Court's treatment of the issue demonstrates that
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the existence of probable cause with respect to a particular
suspect is a significant factor to be used in evaluating the
advocatory nature of prosecutorial conduct.” Cousin v. Small.
325 F.3d 627, 633 (5th Cir.2003); accord Barbera, 836 F.2d
at 99 (noting “that in each of the cases we have reviewed
where absolute immunity was upheld, some type of formal
proceeding had been commenced or was being commenced
by the challenged acts”); see also DiBlasio v. Novello, 344
F.3d 292, 300–01 (2d Cir.2003) ( “In assessing whether
absolute immunity should attach to a prosecutor ... we have
focused on the timing of the conduct at issue....”) Thus, in
interpreting Buckley, the Second Circuit has distinguished
between “preparing for the presentation of an existing case,”
on the one hand, and attempting to “furnish evidence on which
a prosecution could be based,” on the other hand, with only
the former entitling a prosecutor to absolute immunity. Smith
v. Garretto, 147 F.3d 91, 94 (2d Cir.1998).
*7 In assessing a prosecutor's claim of absolute immunity,
the court employs a “functional approach,” see, e.g., Burns,
500 U.S. at 486, which looks to “the nature of the function
performed, not the identity of the actor who performed it.”
Forrester v. White, 484 U.S. 219, 229 (1988); see also Van de
Kamp v. Goldstein, 555 U.S. 335, 335–336 (2009) (“To decide
whether absolute immunity attaches to a particular kind of
prosecutorial activity, one must take account of ... ‘functional’
considerations”). The court must inquire whether the actions
in question are part of a prosecutor's traditional function
and whether they are closely associated with the judicial
process. Blouin v. Spitzer, 356 F.3d 348, 357 (2d Cir.2004) (a
court must examine the “nature of the function performed”
in assessing whether absolute immunity will attach.); Doe v.
Phillips, 81 F.3d 1204, 1209 (2d Cir.1996).
B. Analysis
1. Malicious Prosecution, Abuse of Process
To the extent that the Amended Complaint seeks to hold
Chao liable for initiating the prosecution of Moye, absolute
immunity is clearly applicable. Shmueli v. City of New
York, 424 F.3d 231, 237 (2d Cir.2005) (“[T]he prosecutor
is shielded from liability for damages for commencing and
pursuing the prosecution, regardless of any allegations that
his actions were undertaken with an improper state of mind or
improper motive.”); see also Hill, 45 F.3d at 660–61 (holding
that prosecutors and those working under their direction are
absolutely immune for claims relating to the initiation of a
prosecution and for conduct before a grand jury). Plaintiff s
federal and state law claims alleging malicious prosecution
and abuse of process will therefore be dismissed. 5
5 Absolute immunity is a defense not only to Section
1983 claims but to related state law claims. See
Shmueli, 424 F.3d at 238 (dismissing Section
1983 and related state law malicious prosecution
claims); Arum v. Miller, 331 F.Supp.2d 99, 112
(E.D.N.Y.2004) (dismissing abuse of process and
civil conspiracy claims on grounds of absolute
prosecutorial immunity); Imbler, 424 U.S. at 424
(same principles require conferral of absolute
immunity for damage claims against prosecutors
under Section 1983 and state law).
2. Creation of Misleading Photographs, Conspiracy to
Present False Evidence at Trial
Moye alleges that Chao, in preparation for Moye's second
trial, returned to West 118th Street and instructed Nancy
Badger—the District Attorney's office photographer—to take
photographs that inaccurately represented the position of
Moye's car on the night of his arrest. Chao then presented
these photographs at the second trial. (Am.Cmplt.¶¶ 38, 40,
50, 50–54, 66–67) Moye alleges that these photographs gave
the false impression that the police in the observation post
would have been able to see Moye's hand outside the driver's
side window. (Id. ¶ 60) Moye further argues that absolute
immunity does not extend to Chao's role in obtaining these
allegedly misleading photographs, because obtaining such
evidence is “not a traditional prosecutorial function” and was
“done for the purpose of misleading the second jury.” (Pltf.
Opp. Br. at 10–11)
Prosecutors' absolute immunity applies “not just for
presentation of testimony,” however, but also to preparatory
conduct “relating to their advocacy.” Dory, 24 F.3d at 83.
The Supreme Court and the Second Circuit have emphasized
that ‘ “the duties of the prosecutor in his role as advocate
for the State involve actions preliminary to the initiation
of a prosecution and actions apart from the courtroom....
Preparation, both for the initiation of the criminal process
and for a trial, may require the obtaining, reviewing, and
evaluating of evidence.’ “ Barbera, 836 F.2d at 100 (quoting
Imbler, 424 U.S. at 431 n. 33); see also Barrett, 798 F.2d
at 571 (“The absolute immunity accorded to government
prosecutors encompasses not only their conduct of trials
but all of their activities that can fairly be characterized as
closely associated with the conduct of litigation or potential
litigation....”).
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*8 Chao obtained the photographs at issue after Moye's first
trial and in preparation for Moye's second trial. Accordingly,
his involvement in obtaining these photographs took place
long after formal criminal proceedings had been commenced.
See Deskovic v. City of Peekskill, Nos. 07–CV–8150 (KMK),
07–CV–9488 (KMK), 2009 WL 2475001, at *10 (S.D.N.Y.
Aug. 13, 2009) (“[i]n assessing how closely connected a
prosecutor's conduct is to the judicial phase of the criminal
process, the timing of the conduct is relevant”) (citing
DiBlasio, 344 F.3d at 300–01).
Furthermore, in directing that these new photographs be
taken, Chao was performing in his role as a prosecutor
preparing for trial: he sought to obtain these visual depictions
of the crime scene in order to strengthen his case. (Am. Cmplt.
¶ 64 (purpose of second set of photographs was “to show
that P.O. Jeselson could see a hand coming out of the car
window on the date of plaintiff s arrest”)). Although Chao
was working with the police, he was acting within his role
“as [an] advocate for the State.” Burns, 500 U.S at 491.
Courts have consistently found absolute immunity applicable
where, as here, a Section 1983 plaintiff is relying on post-
indictment misconduct by a prosecutor aimed at obtaining
additional evidence to support pending charges at trial. See,
e.g., Deskovic, 2009 WL 2475001, at *5, *11, *13 (plaintiff
contended that A.D.A. had, post-indictment, conspired to
procure false scientific evidence that he later introduced at
trial; granting A.D.A.'s motion to dismiss Section 1983 claims
on absolute immunity grounds, because the A.D.A.'s alleged
misconduct took place after indictment during the “judicial
phase of the criminal process”); Bertuglia v. City of New York,
No. 11 Civ. 2141(JGK), 2012 WL 906958, at *21 (S.D.N.Y.
Mar. 19, 2012) (granting motion to dismiss state law claims
against A.D.A. defendant based on post-indictment evidence-
gathering activities; absolute immunity applicable because
“the Complaint does not allege facts that create a plausible
inference that [the prosecutor] was not acting as an advocate
seeking to strengthen her case against an indicted defendant”);
Zahrey v. City of New York, No. 98–4546, 2009 WL 54495, at
*30–*31 (S.D.N.Y. Jan. 7, 2009) (granting absolute immunity
to A.D.A. alleged to have engaged in post-indictment effort
to fabricate evidence); KRL v. Moore, 384 F.3d 1105 (9th
Cir.2004) (granting A.D.A. absolute immunity for alleged
misconduct related to his role in obtaining a post-indictment
search warrant seeking evidence to corroborate pending
charges); Cousin v. Small, 325 F.3d 627, 635 (5th Cir.2003)
(granting absolute immunity to A.D.A. accused of fabricating
evidence post-indictment; “at the time of [A.D.A.] Jordan's ...
conversations with Rowell, in which Jordan allegedly told
Rowell to implicate Cousin falsely in the murder and coached
him on how to testify, Jordan was acting as an advocate rather
than as an investigator. The interview was intended to secure
evidence that would be used in the presentation of the state's
case at the pending trial of an already identified suspect,
not to identify a suspect or establish probable cause. Jordan
therefore is entitled to absolute immunity with respect to this
claim.”); see also Peay v. Ajello, 470 F.3d 65, 68 (2d Cir.2006)
(affirming dismissal on absolute immunity grounds of Section
1983 claim brought against Assistant State's Attorney based
on alleged conspiracy to present false evidence at trial); Dory,
25 F.3d at 83 (“absolute immunity protects a prosecutor from
§ 1983 liability for ... allegedly conspiring to present false
evidence at a criminal trial”).
*9 Because Chao is alleged to have obtained the misleading
photographs post-indictment, in preparation for Moye's
second trial, and in an effort to strengthen his case as the
State's advocate, he is entitled to absolute immunity for this
alleged misconduct.
3. Misconduct at Trial
Moye alleges that Chao elicited false testimony from Officer
Jeselson at trial, that he buttressed Jeselson's false testimony
through introduction of the misleading photographs, and that
he then vouched for the truth of Jeselson's testimony in his
summation.
A prosecutor's presentation of false evidence, or subornation
of perjury at trial, is protected by absolute immunity. Jones
v. King, No. 10 Civ. 0897(PKC), 2011 WL 4484360, at *4
(S.D.N.Y. Sept. 28, 2011) (“The claim that [the prosecutor]
‘conspir[ed] to present false evidence at a criminal trial’ is
barred.... The prosecutor enjoys absolute immunity ‘despite
allegations of his “knowing use of perjured testimony....’ “
”) (citations omitted); Bertuglia, 2012 WL 906958, at *23
(prosecutors are entitled to absolute immunity for allegations
that they “coerced and harassed various witnesses into giving
false testimony”); Urrego v. United States, No. 00 CV
1203(CBA), 2005 WL 1263291, at *2 (E.D.N.Y.2005) (“It
is settled law that when a prosecutor presents evidence to
a grand jury and at trial he is acting as an advocate and
entitled to absolute immunity on claims that the evidence
presented was false.”); Johnson v. Scott, No. CV–91–
1467(CPS), 1993 WL 36131, at *2 (E.D.N.Y. Feb. 5, 1993)
(A.D.A. entitled to absolute immunity related to witness
perjury, because this “concern[ed] ... the presentation of the
State's case against the plaintiff); see Imbler, 424 U.S. at
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430–31 (granting prosecutors absolute immunity for their
conduct “in presenting the State's case,” including permitting
a fingerprint expert to give false testimony, suppressing
important evidence, and introducing a misleading artist's
sketch into evidence.).
The analysis does not change because Plaintiff alleges a
conspiracy to commit these acts. Shmueli, 424 F.3d at 237–
38 (“principles [of absolute immunity] are not affected
by allegations that improperly motivated prosecutions were
commenced or continued pursuant to a conspiracy”) (citing
Dory, 25 F.3d at 83); Bernard. 356 F.3d at 503; Hill, 45 F.3d
at 659 n. 2 (when the underlying activity at issue is covered
by absolute immunity, the “plaintiff derives no benefit from
alleging a conspiracy”).
Plaintiff also argues that Chao acted outside his prosecutorial
role when he vouched for Jeselson's testimony during
summation. Because a prosecutor's summation is part of
presenting the State's case, courts agree that a prosecutor's
conduct during summation is protected by absolute immunity.
See Robinson v. Rome, No. 11–CV–1411(NGG)(LB), 2011
WL 1541044, at *3 (E.D.N.Y.2011) (finding A.D.A.s immune
from suit for claims related to, inter alia, an improper
summation); Johnson, 1993 WL 36131, at *2 (granting
absolute immunity to prosecutor where plaintiff alleged that
A.D.A. “express [ed] to the jury her opinion as to the truth of
the testimony of her witnesses during her summation”).
*10 In sum, to the extent that Moye's claims against Chao
are based on his conduct at trial, those claims are covered by
absolute immunity.
* * * *
The Court concludes that Chao has absolute immunity for
all of Moye's claims, whether based on federal or state law,
and whether founded on theories of malicious prosecution,
abuse of process, denial of a fair trial, fabricated evidence,
conspiracy, or intentional or negligent infliction of emotional
distress.
CONCLUSION
Chao's motion to dismiss is GRANTED. The Clerk of the
Court is directed to terminate the motion (Dkt. No. 23).
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2012 WL 2569085
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Moye v. City of New York
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (3)
Title PDF Court Date Type
1. First Amended Complaint
Ronald MOYE, Plaintiff, v. THE CITY OF NEW YORK;
Sgt. Nelson Caban, Shield # 5131; P.O. Paul Jeselon,
Shield # 24653; P.O. Samuel Fontanez, Shield # 25590;
P.O. Edward Simonetti, Shield # 23722; P.O. Matthew
Boorman, Shield # 28212; P.O. Frank Papa, Shield
# 29209; P.O. Tawaina O'Neal, Shield # 19346; P.O.
Brennan; P.O. John Does # 1-10; P.O.; and A.D.A. Dustin
Chao, Defendants.
2011 WL 12881748
S.D.N.Y. July 05, 2011 Pleading
2. Complaint
Ronald MOYE, Plaintiff, v. THE CITY OF NEW YORK;
Robert M. Morgenthau, New York County District
Attorney's Office; Sgt. Nelson Caban, Shield # 5131; P.O.
Paul Jeselon, Shield # 24653; P.O. Samuel Fontanez,
Shield # 25590; P.O. Edward Simonetti, Shield # 23722;
P.O. Matthew Boorman, Shield # 29209; P.O. Tawaina
O'neal, Shield # 19346; P.O. Brennan; P.O. John Does
# 1-10; P.O.; and A.D.A. Dustin Chao, the individual
defendant (S) sued individually and in
2011 WL 232313
S.D.N.Y. Jan. 14, 2011 Pleading
3. Docket 1:11cv00316
MOYE v. THE CITY OF NEW YORK ET AL
— S.D.N.Y. Jan. 14, 2011 Docket
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Moye v. City of New York
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
History
There are no History results for this citation.
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Johnson v. City of New York, Not Reported in F.Supp.2d (2000)
2000 WL 1335865
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2000 WL 1335865
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Martin JOHNSON, Plaintiff,
v.
THE CITY OF NEW YORK, Assistant District
Attorney Robert Henoch, Captain of Corrections Martin,
Corrections Officer Schmidt, Corrections Officer Brown
and Unidentified Correction Officers, Defendants.
No. 00CIV.3626(SHS).
|
Sept. 15, 2000.
OPINION AND ORDER
STEIN, D.J.
*1 Martin Johnson has brought this action pursuant to 42
U.S.C. § 1983 seeking monetary damages on the grounds that
the defendants—the City of New York, an Assistant District
Attorney, and certain Corrections Officers—violated his
constitutional rights under the Fourth, Eighth and Fourteenth
Amendments to the U.S. Constitution by failing to protect
him from an attack by fellow inmates against whom he had
arranged to testify. Johnson also asserts two tort claims. The
Assistant District Attorney moves to dismiss the complaint
as it pertains to him pursuant to Fed.R.Civ.P. 12(b)(6) for
failure to state a claim upon which relief can be granted and
pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter
jurisdiction. For the following reasons, the motion is granted
and the complaint is dismissed as to ADA Henoch.
BACKGROUND
The facts are taken from plaintiff's complaint and are assumed
to be true for purpose of this motion. In May of 1998 Johnson
was arrested for allegedly selling crack cocaine. Complaint
at 4. Shortly after his arrest, he entered into a cooperation
agreement with ADA Henoch to testify against several of
his co-defendants. 1 Id. ADA Henoch allegedly “assured”
plaintiff at that time that he “would protect him[ ]” from
possible retaliation by his co-defendants. Id. Johnson claims
that he was being held in Beacon, a housing area on Rikers
Island, which was in “the same general area” as where the
people against whom he was to testify were held and that he
alerted ADA Henoch of this fact. Id. ADA Henoch “explicitly
assured [him] that he would be safe” and that “he would be
placed in protective custody.” Id. at 4–5. Plaintiff also alerted
defendant Corrections Officers Martin, Schmidt, Brown and
“Unidentified Correction Officers” to his danger. Id. at 5.
1 The complaint states that plaintiff entered into the
cooperation agreement with ADA Henoch on June
18, 1999. Complaint at 4. Plaintiff's opposition,
however, states the cooperation agreement was
entered into in “June of 1998”. Opposition at
2. In addition, plaintiff has recently sought—
successfully—to amend the complaint to allege
that the agreement was made in June of 1998.
Accordingly, this Court will assume that plaintiff
entered into the cooperation agreement with
defendant in June, 1998.
On February 24, 1999, plaintiff was attacked by fellow
inmates “who called him a snitch as they beat and kicked
him.” Id. As a result of the beating, Johnson suffered a
fractured ankle, injuries to his head, neck and legs, and
damage to his retina that required surgery. Id. ADA Henoch,
after learning of the attack on plaintiff, “acknowledged [his]
prior request for protection.” Id.
As noted above, Johnson has filed this action against the City
of New York, Correction Officers Martin, Schmidt, Brown,
and ADA Henoch and the ADA has moved to dismiss the
complaint on the grounds that it fails to state a constitutional
claim for which relief may be granted and that he is entitled
to either absolute or qualified prosecutorial immunity.
DISCUSSION
When reviewing a motion to dismiss, a court must accept as
true the factual allegations of the complaint and must view
the pleadings in the light most favorable to and draw all
reasonable inferences in favor of the non-moving party. See
Jamison v. Dee, 2000 WL 502871 (S.D.N.Y. April 27, 2000)
(citing Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d
Cir.1993)). Dismissal of the complaint is only proper when “it
appears beyond doubt that plaintiff can prove no set of facts
in support of his claim which would entitle him to relief.”
Conley v. Gibson, 355 U.S. 41, 45–46 (1957).
I. Absolute Immunity
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*2 It is well-established that prosecutors are absolutely
immune from suits for damages arising from actions which
are “intimately associated with the judicial phase of the
criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430–
31, 96 S.Ct. 984, 994–95, 47 L.Ed.2d 128 (1976); see Buckley
v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d
209 (1993). Whether a prosecutor has absolute immunity
“depends principally on the nature of the function performed,
not on the office itself.” Ying Jing Gan v. City of New York,
996 F.2d 522, 530 (2d Cir.1993). Such functions include
the decision to bring charges against a defendant, see Gan,
996 F.2d at 530, presenting evidence to a grand jury, see
Barret v. United States, 789 F.2d 565, 571–72 (2d Cir.1986),
and the evaluation of evidence prior to trial. See Kalina v.
Fletcher, 522 U.S. 118, 126, 118 S.Ct. 502, 139 L.Ed.2d 471
(1997). Absolute immunity is not available, however, when
a prosecutor “undertakes conduct that is beyond the scope of
his litigation-related duties.” Barbera v. Smith, 836 F.2d 96,
99 (2d Cir.1987).
Barbera v. Smith, 836 F.2d 96, 100, is closely analogous
to this action. In Barbera, the Second Circuit held that a
prosecutor was not entitled to absolute immunity where he
twice refused to provide a cooperating witness with police
protection. Id. at 98. The witness had agreed to testify in return
for a more lenient sentence and was murdered by a contract
killer hired by the target of the prosecutor's investigation.
Id. The Court found that “the government was still seeking
evidence, including testimony from [the victim], that would
enable it to prosecute ...” and that “this task [providing
protection] was [not] so intimately associated with the judicial
phase of the criminal process ...” as to entitle the prosecutor
to absolute immunity. Id.
Here, as in Barbera, defendant's activities were not “so
intimately associated with the judicial phase of the criminal
process” as to entitle him to absolute immunity from suit. See
Gan, 996 F.2d at 531 (“the claim that [the prosecutor] failed
to protect [plaintiff] asserts conduct that plainly is not integral
either to a decision of whether or not to institute a prosecution
or to the conduct of judicial proceedings. Accordingly, if
[defendant] is to be accorded immunity ... it can only be
qualified immunity .”). Therefore absolute immunity is not
available to the district attorney in this action.
II. Qualified Immunity
In general, “the defense of qualified immunity cannot support
the grant of a ... 12(b)(6) motion for failure to state a claim
upon which relief can be granted.” Green v. Maraio, 722
F.2d 1013, 1018 (2d Cir.1983). Qualified immunity is an
affirmative defense that must be pleaded by the official
claiming it. See Satchell v. Dilworth, 745 F.2d 781, 784
(2d Cir.1984) (citing Harlow v. Fitzgerald, 457 U.S. 800,
815, 102 S.Ct. 2727, 72 L.Ed .2d 396 (1982)). Dismissal
for failure to state a claim is thus appropriate where the
complaint itself presents the qualified immunity defense. See,
e.g., Green, 722 F.2d at 1019. The United States Supreme
Court has also held that “unless the plaintiff's allegations state
a claim of violation of clearly established law, a defendant
pleading qualified immunity is entitled to dismissal before
the commencement of discovery.” Mitchell v. Forsyth, 472
U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); See
also Robison v. Via, 821 F.2d 913, 920 (2d Cir.1987) (citing
Procunier v. Navarette, 434 U.S. 555, 565 (1978) (prison
officials entitled to dismissal of claims of violating prisoner's
First and Fourteenth Amendment rights by interfering with
mail where such rights had not been clearly established)).
Even when viewed in the light most favorable to plaintiff and
drawing all reasonable inferences in his favor, Mills, 12 F.3d
at 1174, Johnson's allegations regarding the District Attorney
do not state a violation of a clearly established constitutional
right. Thus, dismissal pursuant to Fed.R.Civ.P. 12(b)(6) is
appropriate. See, e.g., Molinelli v. Tucker, 901 F.2d 13, 16 (2d
Cir.1990).
*3 Qualified immunity shields government actors
performing discretionary functions from “ ‘liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” ’ Lennon v. Miller, 66
F.3d 416, 420 (2nd Cir.1995) (quoting Harlow, 457 U.S. at
818). To determine whether a right was clearly established
at the time defendant acted, the Court must consider: “(1)
whether the right in question was defined ‘with reasonable
specificity’; (2) whether the decisional law of the Supreme
Court and the applicable circuit court support the existence of
the right in question; and (3) whether under preexisting law
a reasonable defendant official would have understood that
his or her acts were unlawful.” Gan, 996 F.2d at 532 (quoting
Jermosen v.. Smith, 945 F.2d 547, 550 (2d Cir.1992)).
The District Attorney claims that he is entitled to qualified
immunity because, even if he had a constitutional duty to
protect Johnson, it was not a clearly established duty. The Due
Process Clause itself does not require the State to protect “the
life, liberty, [or] property of its citizens against invasion by
private actors.” Deshaney v. Winnebago County Dep't of Soc.
Serves, 489 U.S. 189, 195, 109 S.Ct. 998, 1002, 103 L.Ed.2d
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249 (1989). Therefore, as a general rule, “a State's failure to
protect an individual against private violence simply does not
constitute a violation of the Due Process Clause.” Id. at 197,
109 S.Ct. at 1004. The only judicially recognized exceptions
to this rule are custodial relationships where “the State takes a
person into its custody and holds him there against his will,”
Id. at 199–200, 109 S.Ct. at 1005 (the “special relationship”
exception), or when the government affirmatively creates or
increases the danger an individual is placed in. See Dwares
v. City of N.Y., 985 F.2d 94, 98–99 (2d Cir.1993) (the “state-
created danger” exception).
Special relationships that have given rise to a governmental
duty to protect against third-person attacks include “custodial
relationships such as a prison and inmate or a mental
institution and involuntarily committed patient, and the
relationship between a social service agency and foster child.”
Gan, 996 F.2d at 532 (citing cases).
The Second Circuit has also recognized the state-created
danger exception to DeShaney's general rule. See Dwares,
985 F.2d at 99 (police officers agreed in advance with
members of a group to allow the group to assault the plaintiff,
did not interfere during the beating and did not arrest those
who assaulted the plaintiff); Hemphill v. Schott, 141 F.3d
412, 418 (2d Cir.1998) (arresting officers returned gun to
robbery victim and drove him to the scene of suspect's
arrest, where the victim shot the suspect); see also Freeman
v. Ferguson, 911 F.2d 52, 54 (8th Cir.1990) (reversing
dismissal on qualified immunity grounds against police chief
who instructed subordinates to ignore victim's request for
protection from her husband, who was the chief's friend).
*4 Johnson contends that the District Attorney's proffer
of the cooperation agreement and assurance that he would
protect plaintiff conferred upon the District Attorney a
constitutional duty to protect Johnson. 2 Plaintiff claims that
the prosecutor's duty to protect him was clearly established
by DeShaney and by Farmer v. Brennan, 511 U.S. 825,
114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (prison officials
may be held liable under Eighth Amendment for denying
humane conditions of confinement only if they know that
inmates face substantial risk of serious harm and disregard
that risk by failing to take reasonable measures to abate it).
However, neither DeShaney nor Farmer clearly establish the
law regarding plaintiff's allegations. While the very action
in question need not have been previously held unlawful
for a constitutional right to be clearly established, Duncan
v. Kean, 1995 WL 649931, *3 (S.D.N.Y. Nov. 6, 1995)
(citing Aveni v. Mottola, 35 F.3d 680, 686 (2d Cir.1994)), it
must be “sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Anderson
v. Creighton, 483 U.S. 635, 639 107 S.Ct. 3034, 3039, 97
L.Ed.2d 523 (1987).
2 Johnson does not specify whether he is claiming
defendant Henoch owed a duty to protect him based
on the special relationship or state-created danger
exception to the DeShaney rule. For the purpose of
this motion, both arguments will be addressed.
The Second Circuit has twice considered and rejected claims
against prosecutors for failure to protect a witness from attack
by a third party. See Barbera, 836 F.2d at 100–01; Gan, 996
F.2d at 533–34. In Gan, a panel of the Second Circuit wrote
that
“[p]laintiffs have not called to
our attention any case before or
since [Barbera ] ... in which
the lodging of a complaint with
law enforcement officials, or the
complainant's compliance with a
request to identify suspects, either
singly or in combination, has been
held (a) to create a relationship
that gives the complaining witness a
constitutional right to protection, or (b)
to impose a corresponding duty on a
prosecutor.”
Id. at 533–34.
Here, as in Gan, plaintiff points to no case, and the Court
is aware of none, where it has been held that a prosecutor's
alleged promise to protect an inmate who agrees to testify
creates a special relationship that gives rise to a constitutional
right to protection from a third party. Nor is the Court aware
of any decision which has held that the mere proffer of
a cooperation agreement by a prosecutor so increases the
danger to an inmate that it creates a constitutional duty for
the prosecutor to protect the inmate from potential attacks
by third persons. A prison official's willful failure to protect
an inmate from another inmate's violent actions violates the
Constitution if the officer was “deliberate[ly] indifferen[t] to
the consequences of his conduct for those under his control
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and dependent upon him,” Morales v. New York State Dep't
of Corrections, 842 F.2d 27, 30 (2d Cir.1988). However, no
corresponding duty has been found to exist between an inmate
and prosecutor.
Based on the limited caselaw in existence at the time of the
alleged attack, and particularly because of the absence of any
caselaw which holds that any state actor other than a prison
official owes a duty to protect an inmate from another inmate's
violent actions, it cannot be said that it was clearly established
that defendant ADA Henoch had created or assumed a special
relationship with Johnson imbuing him with a constitutional
duty to protect him. Therefore, this Court “need not decide
whether [it] would hold that these circumstances create such
a right and corresponding duty, for in the absence of any
such holdings and in the face of the general rule articulated
in DeShaney, it could not have been clear to a reasonable
prosecutor that his failure to provide protection ... would
have violated [plaintiff's] rights under the Constitution.” Gan,
996 F.2d at 534. Defendant Henoch is therefore entitled to
qualified immunity.
III. The Pendent State Claims
*5 The ADA's motion to dismiss plaintiff's pendent state
law claims is likewise granted. The Court declines to exercise
supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)
(3). Accordingly, the state law claims against ADA Henoch
are dismissed without prejudice. See United Mine Workers of
America v. Gibbs, 338 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16
L.Ed.2d 218 (1966); Carnegie–Mellon University v. Cohill,
484 U.S. 343, 350 n. 7, 98 L.Ed.2d 720 (1988); Mayer v. Oil
Field Systems Corp., 803 F.2d 749, 757 (2d Cir.1986).
IV. CONCLUSION
For the reasons set forth above, the prosecutor's motion to
dismiss is granted and the complaint is dismissed as against
the assistant district attorney.
SO ORDERED:
All Citations
Not Reported in F.Supp.2d, 2000 WL 1335865
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Johnson v. City of New York
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Filings (1)
Title PDF Court Date Type
1. Docket 1:00cv03626
JOHNSON v. THE CITY OF NEW YORK, ET AL
— S.D.N.Y. May 15, 2000 Docket
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Johnson v. City of New York
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History
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O'Callaghan v. City of New York, Not Reported in Fed. Supp. (2016)
2016 WL 7177509
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2016 WL 7177509
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
James O'CALLAGHAN, Plaintiff,
v.
The CITY OF NEW YORK, Defendant.
16 CIV. 1139 (ER)
|
Signed 12/08/2016
Attorneys and Law Firms
James O' Callaghan, New York, NY, pro se.
Erin Teresa Ryan, New York City Law Department, New
York, NY, for Defendant.
OPINION AND ORDER
Ramos, D.J.:
*1 Plaintiff James O'Callaghan (“Plaintiff”), proceeding
pro se, brings this action against the City of New York
(the “City”) 1 alleging violations of his civil rights. 2
Specifically, Plaintiff asserts claims of conspiracy, age and
race discrimination, fraud, and negligence in connection with
the police investigation of an assault committed against him.
See Compl., Doc. 1 at 1. The City now moves to dismiss the
Complaint with prejudice pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Doc. 10.
1 The caption of the Complaint only lists the
City of New York as a Defendant, although the
Complaint purports to also list as “Defendants”
Detective Brian O'Leary, Sergeant James Fox,
Police Officer Edward Guzik, Corporation Counsel
for the City of New York Zachary W, Carter, and
Assistant Corporation Counsel Yael Barbabay by
listing them on the first page. See Doc. 1. These
individuals are not listed as Defendants on the
docket nor have summonses been issued by the
Clerk of the Court as to these individuals. See Doc.
2 (Summons as to City of New York). However, as
discussed more fully within, because the Plaintiff is
proceeding pro se, the Court assumes that Plaintiff
would seek the opportunity to amend to join these
individuals as Defendants.
2 While Plaintiff did not specifically reference 42
U.S.C. § 1983 in his Complaint, submissions from
a pro se litigant must be construed liberally and
interpreted “to raise the strongest arguments that
they suggest.” Triestman v. Federal Bureau of
Prison, 470 F.3d 471, 474 (2d Cir. 2006). The court
therefore construes Plaintiff's action as one arising
under 42 U.S.C. § 1983.
For the reasons discussed below, the City's motion is
GRANTED.
I. BACKGROUND
A. Factual Background
The following facts, which are taken from the Complaint, are
assumed to be true for purposes of the instant motion. 3
3 As is required on a motion pursuant to Rule 12(b)
(6), the factual allegations in the Complaint are
accepted to be true for purposes of this motion, and
all reasonable inferences are drawn therefrom in
favor of Plaintiff. Famous Horse Inc. v. 5th Ave.
Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). The
facts recited herein do not constitute findings of fact
by this Court.
On February 19, 2014, Plaintiff, a senior citizen, was working
as a driver for Uber when he was assaulted by a New York
City yellow cab driver, who threw him to the ground and
punched him several times in the face. Compl. ¶¶ 1, 10. Two
people witnessed this altercation, one of whom took pictures
of the incident. Id. ¶¶ 1, 2. The taxi driver then fled the
scene, and the police arrived shortly thereafter. Id. Police
officers spoke with the witnesses at the scene and collected
evidence from one of the witnesses, including photographs of
the incident, the taxi driver, and the taxi. Id. ¶ 2. Police Officer
Guzik took the witness information and told the Plaintiff
that the taxi driver would be easy to locate. Id. The Police
Report, which Plaintiff attached to his Complaint, notes the
taxi plate number reported at the scene. Doc. 1 at 13-14
(“Police Report”). An ambulance arrived and members of
the fire department bandaged the Plaintiff's cuts. Compl. ¶
2. As a result of the attack, Plaintiff currently suffers from
painful headaches and constant shaking of his hands. Id. ¶ 13.
Plaintiff's neurosurgeon at New York Presbyterian Hospital
concluded that Plaintiff suffered a severe concussion. Id.
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*2 After the incident, Detective Brian O'Leary was assigned
to the case. Id. ¶ 3. In a series of texts between Detective
O'Leary and the Plaintiff, Detective O'Leary stated that the
taxi driver was arrested for assault on June 7, 2014 and that the
police did not need any additional information from Plaintiff
because the arrestee admitted his actions. Id.; see also Doc.
1 at 9-10 (text messages from Det. Brian O'Leary). However,
Plaintiff claims that almost four months after the incident, no
arrest had actually been made in the case, despite the fact that
Detective O'Leary knew the name of the assailant. Compl.
¶¶ 3, 12. 4 Although Plaintiff continued to attempt to get
information from Detective O'Leary about the progress of the
investigation, the telephone number that Plaintiff used to text
message Detective O'Leary is now disconnected. Id. ¶ 12.
4 Plaintiff has further stated in his submissions to
the Court that Detective O'Leary “lied about the
assailant being arrest for assault.” Doc. 8 at 2.
Plaintiff attempted to obtain information through a number
of other avenues, including various divisions at the
District Attorney's Office, the New York Police Department
(“NYPD”) 17 th Precinct, and the Taxi and Limousine
Commission. Id. ¶¶ 4-7. The District Attorney's Office told
Plaintiff that they could not do anything unless an arrest was
made in the case, and the other departments he contacted
similarly offered no assistance. Id. In November 2014, nine
months after the incident, Sergeant Fox called the Plaintiff
and said the police could not contact the witness. Id. ¶ 5.
At the time of the incident, Plaintiff alleges that the City was
attempting to restrict Uber's activity, so the City attempted to
conceal the fact that he had been assaulted by a cab driver.
Id. ¶ 6.
B. Procedural History
Plaintiff filed a claim with the City regarding the incident.
Id. ¶¶ 8-9. 5 He was informed by the Clerk that he could not
pursue the claim because he did not bring his claim within
90 days of the occurrence. Id. Subsequently, on March 23,
2015, Plaintiff filed a lawsuit against the City in New York
State Supreme Court. Doc. 11-3. Plaintiff's complaint detailed
the events that took place on and after February 19, 2014,
including the altercation with the cab driver and Plaintiff's
interactions with NYPD officials during the investigation that
followed. Id. at 6-7. The complaint alleged that the City
violated his federal and state rights by not adhering to its own
rules, federal and state Constitutions, and laws prohibiting age
discrimination and civil rights violations. Id. at 2. Assistant
Corporation Counsel (“ACC”) Yael Barbabay filed a motion
to dismiss on behalf of the City on the grounds that the
complaint did not state a cause of action. See Doc. 11-2 at 1.
5 Although the Complaint does not state when
Plaintiff filed this claim, Plaintiff's reply brief does
attach as an exhibit a letter dated February 17,
2015 from the City of New York Office of the
Comptroller acknowledging receipt of Plaintiff's
claim. Doc. 16 at 5. Defendant first argues that
Plaintiff did not file a notice of claim with the
City, see Doc. 13 at 16, and then that Plaintiff's
claim was untimely based on this February 17,
2015 acknowledgement of receipt. See Doc. 17 at
4. For purposes of this motion, the Court need not
determine whether Plaintiff's notice of claim was
timely under New York law.
On February 4, 2016, Justice Margaret A. Chan of the
Supreme Court of New York granted the City's motion to
dismiss. Id. at 4-5. Justice Chan dismissed the action in its
entirety for failure to state a claim on the basis that a claim
sounding in negligent police investigation was not viable in
New York, and that Plaintiff failed to state a claim against
the City for municipal liability. Id. Specifically, the Court
held that because Plaintiff did not claim that the “actions or
inactions ... were the result ... of an official policy or custom
of the Police Department or the City of New York,” he did
not state a claim pursuant to Monell v. Dep't of Soc. Servs. of
City of N.Y., 436 U.S. 658 (1978). Id. at 4-5. The decision was
dated February 4, 2016 and filed by the New York County
Clerk's Office on February 11, 2016. Id. at 1.
*3 Plaintiff filed the instant lawsuit in the U.S. District Court
for the Southern District of New York on February 16, 2016.
See Compl. Like his state court complaint, the Complaint
detailed the events with the cab driver and his attempt to
obtain information about the investigation that followed.
Id. The federal Complaint provides more details regarding
the incident and subsequent investigation, and also includes
additional allegations regarding the Corporation Counsel's
alleged wrongdoing related to the state litigation. Specifically,
Plaintiff alleges that in the City's motion to dismiss, ACC
Barbabay included “facts and procedural history that were
completely false.” Id. ¶¶ 10-11. Plaintiff further alleges that
the City's motion was a cover-up based on race and age
discrimination. Id. ¶ 12.
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The City has moved to dismiss the Complaint in its entirety.
Doc. 10; see also Doc. 13 at 2.
II. LEGAL STANDARDS
A. 12(b)(6) Motion to Dismiss Standard
On a motion to dismiss pursuant to Rule 12(b)(6), district
courts are required to accept as true all factual allegations
in the complaint and to draw all reasonable inferences in
the plaintiff's favor. Gonzalez v. Caballero, 572 F. Supp. 2d
463, 466 (S.D.N.Y. 2008). However, this requirement does
not apply to legal conclusions, bare assertions or conclusory
allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678, 681 (2009)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In order to satisfy the pleading standard set forth in Rule 8
of the Federal Rules of Civil Procedure, a complaint must
contain sufficient factual matter to state a claim to relief
that is plausible on its face. Id. at 678 (citing Twombly,
550 U.S. at 570). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements,
do not suffice.” Id. Accordingly, a plaintiff is required to
support his claims with sufficient factual allegations to show
“more than a sheer possibility that a defendant has acted
unlawfully.” Id. “Where a complaint pleads facts that are
merely consistent with a defendant's liability, it stops short
of the line between possibility and plausibility of entitlement
to relief.” Id. (quoting Twombly, 550 U.S. at 557) (internal
quotation marks omitted).
Though a plaintiff may plead facts alleged upon information
and belief, “where the belief is based on factual information
that makes the inference of culpability plausible,” Arista
Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010), such
allegations must be “ ‘accompanied by a statement of the facts
upon which the belief is founded.’ ” Navarra v. Marlborough
Gallery, Inc., 820 F. Supp. 2d 477, 485 (S.D.N.Y. 2011)
(quoting Prince v. Madison Square Garden, 427 F. Supp. 2d
372, 385 (S.D.N.Y. 2006)); see also Williams v. Calderoni,
No. 11 Civ. 3020 (CM), 2012 WL 691832, at *7-8 (S.D.N.Y.
Mar. 1, 2012) (finding pleadings on information and belief
insufficient where plaintiff pointed to no information that
would render his statements anything more than speculative
claims or conclusory assertions). A complaint that “tenders
naked assertions devoid of further factual enhancement” will
not survive a motion to dismiss under Rule 12(b)(6). Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (internal
quotation marks omitted) (brackets omitted).
B. Pro Se Plaintiff
In the case of a pro se plaintiff, the Court is obligated to
construe the complaint liberally, Hill v. Curcione, 657 F.3d
116, 122 (2d Cir. 2011), and to interpret the claims as raising
the strongest arguments that they suggest. Triestman, 470
F.3d at 474; Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir.
2010) (citing Harris v. City of New York, 607 F.3d 18, 24
(2d Cir. 2010)). The obligation to read a pro se litigant's
pleadings leniently “applies with particular force when the
plaintiff's civil rights are at issue.” Jackson v. NYS Dep't of
Labor, 709 F. Supp. 2d 218, 224 (S.D.N.Y. 2010) (citing
McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)).
“However, even pro se plaintiffs asserting civil right claims
cannot withstand a motion to dismiss unless their pleadings
contain factual allegations sufficient to raise a ‘right to relief
above the speculative level.’ ” Id. (quoting Twombly, 550 U.S.
at 555).
C. Additional Standards Regarding Section 1983
*4 In light of Plaintiff's pro se status, the Court liberally
construes his claims as arising under 42 U.S.C. § 1983
(“Section 1983”), which provides a cause of action against
“any person who, acting under color of state law, deprives
another of a right, privilege, or immunity secured by the
Constitution or laws of the United States.” Sykes v. James, 13
F.3d 515, 519 (2d Cir. 1993). To state a claim under Section
1983, a plaintiff must allege that: (1) defendants were state
actors or were acting under color of state law at the time
of the alleged wrongful action; and (2) the action deprived
the plaintiff of a right secured by the Constitution or federal
law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50
(1999). “Section 1983 is only a grant of a right of action; the
substantive right giving rise to the action must come from
another source.” Singer v. Fulton Cnty. Sheriff, 63 F.3d 110,
119 (2d Cir. 1995) (citing Adickes v. S.H. Kress & Co., 398
U.S. 144, 150 (1970)). Thus, a civil rights action brought
under § 1983 will stand only insofar as the plaintiff can prove
an actual violation of his rights under the Constitution or
federal law. Id.
D. Extrinsic Materials Considered For a Rule 12(b)(6)
Motion to Dismiss
“When presented with a motion to dismiss pursuant to
Rule 12(b)(6), the court may consider documents that are
referenced in the complaint, documents that the plaintiffs
relied on in bringing suit and that are either in the plaintiffs'
possession or that the plaintiffs knew of when bringing suit,
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or matters of which judicial notice may be taken.” Silsby
v. Icahn, 17 F. Supp. 3d 348, 354 (S.D.N.Y. 2014) (citing
Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.
2002)). Similarly, a court may consider a res judicata or
collateral estoppel defense on a Rule 12(b)(6) motion to
dismiss “when the court's inquiry is limited to the plaintiff's
complaint, documents attached or incorporated therein, and
materials appropriate for judicial notice.” TechnoMarine SA
v. Giftports, Inc., 758 F.3d 493, 498-99 (2d Cir. 2014) (citing
Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992) (“[W]hen
all relevant facts are shown by the court's own records, of
which the court takes notice, the defense [of res judicata]
may be upheld on a Rule 12(b)(6) motion.”)); Lefkowitz v.
McGraw-Hill Glob. Educ. Holdings, LLC, 23 F. Supp. 3d 344,
360 (S.D.N.Y. 2014) (noting that in a 12(b)(6) motion where
collateral estoppel or res judicata is an issue, “dismissal is
appropriate when it is clear from the face of the complaint,
and consideration of matters which the court may take judicial
notice of, that the plaintiff's claims are barred as a matter of
law”) (internal citations omitted).
Local Civil Rule 12.1 of the Southern District of New York
directs represented parties who move to dismiss by referring
to matters outside the pleadings to provide notice to a pro se
party that the matter may be treated as a motion for summary
judgment and to further explain what the plaintiff must do to
oppose summary judgment. See S.D.N.Y. Civil Local Rule
12.1; see also Hernandez v. Coffey, 582 F.3d 303, 308 n.2
(2d Cir. 2009). Here, Defendant has served the requisite
notice on Plaintiff. However, the Court need not convert the
motion to one for summary judgment because the Court can
take judicial notice of the extrinsic materials relied upon by
Defendant.
Specifically, Defendant attaches the following documents to
the declaration submitted in support of the motion: (1) the
complaint filed by Plaintiff in the Supreme Court, Index No.
100523/15, dated March 23, 2015, Doc. 11-3; (2) the decision
by Justice Chan dismissing the case dated February 4, 2016,
Doc. 11-2; 6 and (3) a copy of the Civil Docket Sheet in this
matter, Doc. 11-4. 7 Accordingly, in considering Defendant's
motion, the Court takes judicial notice of public documents
filed in connection with the state court proceedings and the
Civil Docket Sheet filed in this federal matter, “not for the
truth of the matters asserted ... but rather to establish the fact
of such litigation and related filings.” Kramer v. Time Warner
Inc., 937 F.2d 767, 774 (2d Cir. 1991); see also Greenwich
Life Settlements, Inc. v. ViaSource Funding Grp., LLC, 742 F.
Supp. 2d 446, 452 (S.D.N.Y. 2010) (taking judicial notice of
state court documents); Tokio Marine & Nichido Fire Ins. Co.
v. Canter, No. 07 Civ. 5599 (PKL), 2009 WL 2461048, at *4
(S.D.N.Y. Aug. 11, 2009) (same).
6 Plaintiff argues, mistakenly, that this decision “has
nothing to do with [his] case” and ought not be
considered. Doc. 16 at 4.
7 Defendant also attached the Complaint in this
matter, which does not constitute extrinsic evidence
for purposes of a motion to dismiss.
III. PRECLUSION
*5 Defendant argues that Plaintiff's claims are barred both
by the doctrines of res judicata and collateral estoppel. Doc.
18 at 6-9.
Under the doctrine of res judicata, “a final judgment on the
merits of an action precludes the parties or their privies from
relitigating issues that were or could have been raised in that
action.” Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994)
(quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)). Collateral
estoppel, or issue preclusion, is a corollary to the doctrine of
res judicata that prohibits re-litigating decided issues of fact
or law. McCurry, 449 U.S. at 94. Both collateral estoppel and
res judicata apply to actions under 42 U.S.C.A. § 1983. Univ.
of Tennessee v. Elliott, 478 U.S. 788, 797 (1986). Congress
has directed federal courts to accord state judicial proceedings
the same full faith and credit that state courts provide them,
and this policy applies in § 1983 litigation. McCurry, 449 U.S.
at 98; Golino v. City of New Haven, 950 F.2d 864, 869 (2d
Cir. 1991).
A. Res Judicata
The doctrine of res judicata “precludes a party from litigating
a claim where a judgment on the merits exists from a
prior action between the same parties involving the same
subject matter.” Josey v. Goord, 9 N.Y.3d 386, 389-390, 880
N.E.2d 18 (N.Y. 2007) (internal quotation marks and citation
omitted). “To determine the effect of a state court judgment,
federal courts, including those sitting in diversity, are required
to apply the preclusion law of the rendering state.” Conopco,
Inc. v. Roll Int'l, 231 F.3d 82, 87 (2d Cir. 2000). Because the
basis for the res judicata arises from a New York state court
action, the preclusive effect in federal court of the state-court
judgment is determined by New York law and the Court's
analysis is governed by “New York's transactional approach
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to res judicata.” Jacobson v. Fireman's Fund Ins. Co, 111 F.3d
261, 265 (2d Cir. 1997).
Under New York's “transactional approach,” a claim is barred
by the prior judgment, “where the same foundation [sic] facts
serve as a predicate for each proceeding.” Hasenstab v. City
of New York, 664 F. Supp. 95, 98 (S.D.N.Y. 1987) (internal
quotation marks and citation omitted). “This includes all
claims that were litigated or could have been litigated at that
time.” Id. (internal quotation marks and citation omitted).
“[O]nce a claim is brought to a final conclusion, all other
claims arising out of the same transaction or series of
transactions are barred, even if based upon different theories
or if seeking a different remedy.” O'Brien v. City of Syracuse,
54 N.Y.2d 353, 357, 429 N.E.2d 1158 (N.Y. 1981); see also
Josey, 9 N.Y.3d at 389-390 (quoting O'Brien). In determining
what constitutes the same transaction, the court should look
to: how the facts are related in time, space, origin or
motivation; whether they form a convenient trial unit; and
whether treating them as a unit conforms to the parties'
expectations. Marinelli Associates v. Helmsley-Noyes Co.,
265 A.D.2d 1, 5, 705 N.Y.S.2d 571, 575-76 (1st Dept. 2000).
Even if there are variations in the facts alleged or different
relief is sought, if the actions are grounded on the same
gravamen of the wrong, res judicata applies. Id.; see also
Green v. Kadilac Mortgage Bankers, Ltd., 936 F.Supp. 108,
114 (S.D.N.Y. 1996) (holding plaintiffs could not relitigate
issues already determined in a foreclosure action by recasting
their assertions as § 1983 violations).
*6 Plaintiff's claims in the instant case can be divided
into two categories: (1) claims related to the investigation
of the February 19 th incident; and (2) claims related to the
Corporation Counsel's defense of the City during the litigation
of Plaintiff's state case. As to the latter, Plaintiff alleges
that ACC Barbabay included false information in the City's
motion to dismiss as part of a greater conspiracy to protect
the taxi cab industry in New York from inroads being made
by Uber. Compl. ¶¶ 10-11. Additionally, Plaintiff asserts that
Corporation Counsel Zachary Carter further engaged in a
cover-up “based on racial and age discrimination.” Id. ¶ 12.
Defendant argues that both lawsuits involve the same claims
and operative facts and assert identical allegations. Doc. 13 at
6. The Court agrees. A review of the New York action makes
clear that the claims presented here are virtually identical to
the claims already decided by the state court. Under New
York's transactional approach, his claims, except the claims
as to the Corporation Counsel's litigation-related actions,
undeniably arise out of the same subject matter he advanced
in state court: the City's investigation of the February 19 th
incident. In both the state and federal action, Plaintiff notes
that he was attacked and injured by a taxi driver and alleges
that the NYPD failed to properly handle his case. See Doc.
11-3. Additionally, Plaintiff described the nature of his claims
in state court in nearly identical terms to his claims in the
instant action. Id. at 3. 8 The New York Supreme Court's
dismissal of Plaintiff's lawsuit constitutes a “judgment on
the merits” because the court considered the substance of
Plaintiff's claims. See Doc. 11-2 at 4-5.
8 While Plaintiff did not allege race discrimination in
his state court complaint, this additional allegation
does not alter the Court's analysis that res judicata
applies because it could have been asserted in the
state court. Plaintiff's allegations, including those
related to race discrimination, are grounded on the
same “gravamen of the wrong.” See Marinelli, 705
N.Y.S.2d at 575-76.
Here, the state court proceedings have res judicata
effect and preclude the majority of Plaintiff's claims.
Applying these principles, except as to Plaintiff's claim
regarding the Corporation Counsel's litigation-related actions,
the Court concludes that the doctrine of res judicata
precludes the remainder of Plaintiff's claims. Thus,
Plaintiff's claims concerning conspiracy, age discrimination,
racial discrimination, fraud, negligent investigation and
concealment of the identity of the cab driver, and the
violation of Police rules are precluded because they were
actually brought or could have been brought in the state
proceeding. The Court finds that the claim regarding the
Corporation Counsel's actions could not have been asserted
in the underlying state court action because these allegations
necessarily arise from Counsel's later participation in the
litigation.
Furthermore, although Plaintiff argues that both the state and
federal cases were proceeding at the same time, see Doc.
8, the record before the Court shows that the state court
decision was a prior decision for purposes of preclusion
doctrines. On February 4, 2016 Justice Chan granted the
City's motion to dismiss, and the Opinion was filed with the
County Clerk's office on February 11, 2016. Doc. 11-2 at 4-5.
The instant lawsuit was not filed in this Court until February
16, 2016, almost a week after Justice Chan dismissed the
state suit. See Compl. 9 As is clear from the face of the
Complaint itself, see Doc. 1 at 1, the Complaint was stamped
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on February 16, 2016 and filed that same day. In any event,
the state court decision would have preclusive effect even
if the cases were proceeding simultaneously. The general
rule of concurrent jurisdiction allows lawsuits to proceed in
state and federal court in parallel. Noel v. Hall, 341 F.3d
1148, 1163 (9th Cir. 2003); see also Exxon Mobil Corp. v.
Saudi Basic Indus. Corp., 544 U.S. 280, 293 (2005) (citing
with approval Noel, 341 F.3d at 1163-64 (“Disposition of the
federal action, once the state-court adjudication is complete,
would be governed by preclusion law.”)); United States v.
Northrop, 147 F.3d 905, 909 (9th Cir. 1998) (“The date of
rendition of the judgment is controlling for purposes of res
judicata, not the dates of commencement of the action ...”)
(citing Restatement (Second) of Judgments § 14 (1980);
Unger v. Consolidated Foods Corp., 693 F.2d 703, 705 (7th
Cir. 1982) (“As between two actions pending at the same
time, the first of two judgments has preclusive effect on the
second.”) (citing, as to res judicata, Restatement (Second) of
Judgments § 14)). Here, the state lawsuit was decided first and
this Court “must respect the state court's judgment on those
merits.” See Merritt v. Countrywide Fin. Corp., No. 09 Civ.
01179-(BLF), 2015 WL 5542992, at *9 (N.D. Cal. Sept. 17,
2015).
9 The Court notes that the federal Complaint was
dated and signed on January 22, 2016—before
Justice Chan's dismissal—but Plaintiff did not file
it with the Clerk's office until February 16, 2016.
See Compl.
*7 Thus, the Court finds that the doctrine of res judicata
applies, except as to the claim regarding the Corporation
Counsel's actions. If Plaintiff was unhappy with the result of
that proceeding, the proper recourse was to file an appeal, not
to commence a federal action on the same facts.
B. Collateral Estoppel
The same result is compelled by application of the separate
doctrine of collateral estoppel. The “fundamental notion” of
the doctrine of collateral estoppel, or issue preclusion, “is that
an issue of law or fact actually litigated and decided by a
court of competent jurisdiction in a prior action may not be
relitigated in a subsequent suit between the same parties or
their privies.” Ali v. Mukasey, 529 F.3d 478, 489 (2d Cir. 2008)
(internal quotations and citation omitted). Under New York
law, “collateral estoppel prevents a party from relitigating
an issue decided against that party in a prior adjudication”
where that issue (1) is identical to an issue already decided
(2) in a previous proceeding in which that party had a full
and fair opportunity to litigate. Fuchsberg & Fuchsberg v.
Galizia, 300 F.3d 105, 109 (2d Cir. 2002) (internal quotations
and citations omitted). The litigant seeking the benefit of
collateral estoppel must demonstrate the identicality and
decisiveness of the issue, and the party to be precluded bears
the burden of demonstrating the absence of a full and fair
opportunity to litigate the issue in the prior action. Buechel
v. Bain, 97 N.Y.2d 295, 304, 766 N.E.2d 914, 919 (N.Y.
2001). “New York requires only that the issue have been
properly raised by the pleadings or otherwise placed in issue
and actually determined in the prior proceeding.” Coveal v.
Consumer Home Mortgage, Inc., No. 04 Civ. 4755 (ILG),
2005 WL 2708388, at *5 (E.D.N.Y. Oct. 21, 2005) (internal
quotation marks and citation omitted). Moreover, “federal
district courts are obliged to accord due recognition to the
preclusive effect of state court judgments that adjudicate
federal rights after full and fair consideration, even if the state
court's decision may have been erroneous.” Harris v. N.Y.
State Dep't of Health, 202 F. Supp. 2d 143, 157 (S.D.N.Y.
2002).
Examining the facts raised and issues determined by the
New York Supreme Court, the Court concludes that there is
sufficient identity of issue between the allegations in state
court action and those presented here. The New York Supreme
Court has already held Plaintiff's allegations are without
merit, finding that negligent investigation was not a viable
claim in New York, and that Plaintiff failed to state a viable
claim against the City for municipal liability. Doc. 11-2 at 4-5.
Additionally, Plaintiff has not contested that he had a full and
fair opportunity to litigate the issues in the prior action, and
the Court sees nothing in the record to suggest he lacked this
opportunity, despite his pro se status. Under New York law, an
inquiry into whether a party had a full and fair opportunity to
litigate a prior determination must concentrate on “the various
elements which make up the realities of litigation,” including
“the forum for the prior litigation, the competence and
experience of counsel, the foreseeability of future litigation,
and the context and circumstances surrounding the prior
litigation that may have deterred the party from fully litigating
the matter.” Conte v. Justice, 996 F.2d 1398, 1401 (2d Cir.
1993) (citations omitted). A plaintiff's status as a pro se
litigant does not, by itself, preclude barring a claim under
the doctrine of collateral estoppel, but it is relevant to a
determination of the fairness of his prior opportunity to
be heard. Cruz v. Root, 932 F. Supp. 66, 69 (W.D.N.Y.
1996). Here, the Court finds no circumstances to suggest
that Plaintiff was deterred from fully litigating the matter in
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state court, nor does the Plaintiff assert otherwise. Justice
Chan's decision notes that Plaintiff submitted an opposition
to the City's motion to dismiss. Doc. 11-2 at 1 (“Defendant
made the instant motion to dismiss ... and plaintiff submitted
opposition.”); see also Doc. 8 at 1 (noting that counsel for the
City told Plaintiff “that [he] must submit a reply to the City's
motion [to dismiss], which [he] did”).
*8 Accordingly, Plaintiff's claims, except for the claim
arising from the Corporation Counsel's actions in defending
the lawsuit, are also barred under the doctrine of collateral
estoppel.
IV. MUNICIPAL LIABILITY PURSUANT TO 42
U.S.C. § 1983 (“MONELL CLAIM”)
The sole remaining claim is asserted against the City for the
actions of the Corporation Counsel in defending the state
case. Specifically, Plaintiff alleges that the City's motion
to dismiss was dishonest and fraudulent and part of a
greater conspiracy to protect the taxi cab industry in New
York. Compl. ¶¶ 10-11. Additionally, Plaintiff asserts that
Corporation Counsel Zachary Carter engaged in a cover-up
“based on racial and age discrimination.” Id. ¶ 12.
“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
v. N.Y. City Dep't of Soc. Servs., 436 U.S. 658, 691 (1978).
A municipality cannot be held liable under § 1983 on a
theory of respondeat superior. Id. “[T]o 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) (citing Monell, 436 U.S. at 690-91). “The fifth element
reflects the notion that ‘a municipality may not be held liable
under § 1983 solely because it employs a tortfeasor.’ ” Hayes
v. Cnty. of Sullivan, 853 F. Supp. 2d 400, 438-39 (S.D.N.Y.
2012) (quoting Bd. of Cnty. Comm'rs v. Brown, 520 U.S.
397, 403 (1997)). Thus, a plaintiff must allege that such
a municipal policy or custom is responsible for his injury.
Brown, 520 U.S. at 403-04; see also Connick v. Thompson,
131 S.Ct. 1350, 1359 (2011) (“A municipality or other local
government may be liable under [§ 1983] if the governmental
body itself ‘subjects’ a person to a deprivation of rights or
‘causes’ a person ‘to be subjected’ to such deprivation.”)
(quoting Monell, 436 U.S. at 692).
Courts in this Circuit apply a two prong test for § 1983
claims brought against a municipality. Vippolis v. Vill. of
Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (citation omitted).
First, the plaintiff must “prove the existence of a municipal
policy or custom in order to show that the municipality took
some action that caused his injuries beyond merely employing
the misbehaving [employee].” Id. (citation omitted). Second,
the plaintiff must establish a “ ‘direct causal link between
a municipal policy or custom and the alleged constitutional
deprivation.’ ” Hayes, 853 F.Supp.2d at 439 (quoting City of
Canton v. Harris, 489 U.S. 378, 385 (1989)). To satisfy the
first requirement, a plaintiff must prove the existence of:
(1) a formal policy which is officially
endorsed by the municipality; (2)
actions taken or decisions made by
government officials responsible for
establishing municipal policies which
caused the alleged violation of the
plaintiff's civil rights; (3) a practice
so persistent and widespread that it
constitutes a custom or usage and
implies the constructive knowledge of
policy-making officials; or (4) a failure
by official policy-makers to properly
train or supervise subordinates to such
an extent that it amounts to deliberate
indifference to the rights of those with
whom municipal employees will come
into contact.
*9 Moray v. City of Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y.
1996) (internal citations and quotation marks omitted); see
also Brandon v. City of New York, 705 F. Supp. 2d 261, 276-77
(S.D.N.Y. 2010) (quoting Moray and updating citations to
cases). Although a plaintiff is not required to identify an
express rule or regulation to establish a claim for municipal
liability, proof of “a single incident alleged in a complaint,
especially if it involved only actors below the policymaking
level, does not suffice to show a municipal policy.” DeCarlo
v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) (quoting Ricciuti v.
N.Y. City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991))
(internal quotation marks omitted); see also City of St. Louis v.
Praprotnik, 485 U.S. 112, 123, 127 (1988) (plurality opinion)
(explaining that only municipal officials who have “final
policymaking authority” concerning the particular activities
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giving rise to a plaintiff's claims “may by their actions subject
the government to § 1983 liability” (citation omitted)). “In
the end, therefore, a plaintiff must demonstrate that, through
its deliberate conduct, the municipality was the moving force
behind the alleged injury.” Hayes, 853 F. Supp. 2d at 439
(quoting Roe, 542 F.3d at 37) (internal quotation marks
omitted).
As to Plaintiff's claim arising from the Corporation Counsel's
alleged fraudulent and discriminatory actions, Plaintiff has
not satisfactorily alleged the adoption of a widespread
custom, but instead only offers conclusory allegations of
wrongdoing at the City-level. Plaintiff alleges that these
actions were driven by the City's desire to avoid “bad
publicity for an attack by a yellow cab driver against a senior
citizen Uber driver.” Compl. ¶¶ 11. Plaintiff further avers
that the City, “starting from the top,” protected the yellow
cab industry because “the Mayor was working against Uber
saying they were causing congestion....” Id. ¶ 6.
Such conclusory allegations must be disregarded. Tieman
v. City of Newburgh, No. 13 Civ. 4178 (KMK), 2015 WL
1379652, at *14 (S.D.N.Y. Mar. 26, 2015) (listing cases
and finding conclusory allegations inadequate where plaintiff
alleged, inter alia, that the City had “a policy or practice of
using excessive force when effectuating arrests, and fail[ed]
to train and/or discipline its employees to prevent violations
of arrestee's [sic] constitutional rights.”); see also Missel v.
Cty. of Monroe, 351 Fed.Appx. 543, 545 (2d Cir. 2009) (“To
allege the existence of an affirmative municipal policy, a
plaintiff must make factual allegations that support a plausible
inference that the constitutional violation took place pursuant
either to a formal course of action officially promulgated
by the municipality's governing authority or the act of a
person with policymaking authority for the municipality.”);
Duncan v. City of New York, No. 11 Civ. 3826 (CBA),
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”). At no point does Plaintiff
allege any details of the policy that purportedly guided the
conspiracy and cover-up. Because Plaintiff fails to point to
any non-conclusory plausible factual allegations concerning
the policy that resulted in the deprivation of his rights, the
remaining claim must also be dismissed. 10
10 Plaintiff's memorandum in response also alleges
that the taxi industry donated over $500,000 to
the Mayor's election campaign and that these
contributions are under federal investigation. Doc.
16 at 2-3. These allegations were not included in the
Complaint, but would not alter the Court's decision
even if they were.
V. LEAVE TO AMEND
The Second Circuit has explained that “[a] pro se complaint
is to be read liberally. Certainly the 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.” Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000) (citations and internal quotation marks
omitted). Pursuant to Rule 15(a) of the Federal Rules of Civil
Procedure, the “court should freely give leave [to amend]
when justice so requires.” Fed. R. Civ. P. 15(a)(2).
*10 However, even under this liberal standard, this Court
finds that any attempt to amend the pleading to include
the additional individual defendants referenced in this case
would be futile. It is clear from the Complaint that Plaintiff
does not have any possibility of asserting plausible claims
against these individuals. See Cuoco, 222 F.3d at 112 (“The
problem with [plaintiff's] cause[ ] of action is substantive;
better pleading will not cure it. Repleading would thus be
futile. Such a futile request to replead should be denied.”)
(citing Hunt v. Alliance N. Am. Gov't Income Trust, 159
F.3d 723, 728 (2d Cir. 1998)); see also Lucente v. Int'l Bus.
Machs. Corp., 310 F.3d 243, 58 (2d Cir. 2002) (explaining
that “[w]here it appears that granting leave to amend is
unlikely to be productive ... it is not an abuse of discretion
to deny leave to amend.... [and that] [a]n amendment to a
pleading is futile if the proposed claim could not withstand
a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)”)
(citations omitted). Additionally, the Court has already taken
into account Plaintiff's opposition papers and statements at
the pre-motion conference, in which Plaintiff attempted to
provide additional support for his claims.
Construing the Complaint liberally, Plaintiff references
potential claims against the following additional individuals:
Detective O'Leary, Sergeant Fox, Police Officer Guzik,
Zachary W. Carter, and Yael Barbabay. For the following
reasons, allowing Plaintiff an attempt to amend and serve
these individual defendants would be futile. Therefore,
Plaintiff's claims are dismissed with prejudice. See Hobson
v. Fischer, No. 10 Civ. 5512 (SAS), 2011 WL 891314, at *6
(S.D.N.Y. Mar. 14, 2011).
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A. Leave to Amend as to Individual NYPD Officers is
Futile.
Throughout his Complaint and brief, Plaintiff references
the actions of Detective O'Leary, Sergeant Fox, and Police
Officer Guzik, broadly asserting a cover-up, inadequate
investigation, and concerted effort to conceal his assault. Doc.
16 at 2-3; Doc. 1 ¶¶ 2-7. Plaintiff further claims that Detective
O'Leary committed age discrimination and obstruction of
justice when he failed to provide Plaintiff with information
regarding his attacker and “lied about the assailant being
arrest for assault.” See Doc. 16 at 2; Doc. 8 at 2. As for Police
Officer Guzik and Sergeant Fox, Plaintiff does not allege any
specific claims against them, but merely notes that Police
Officer Guzik was the responding officer at the incident and
Sergeant Fox later called him to indicate that no arrest had
been made. See Compl. ¶¶ 2, 5.
For the same reasons as discussed above, any claims against
the individual officers involved in the investigation of
Plaintiff's case also fail under the doctrines of res judicata
and collateral estoppel. Even if the Court were to read
Plaintiff's Complaint as including the officers as defendants,
Plaintiff cannot relitigate the same issues merely because the
individual defendants were not parties to the case. “Under
the modern doctrine of collateral estoppel, a party who has
had a full and fair opportunity to litigate an issue and lost
in prior litigation may be foreclosed from relitigating that
issue in subsequent cases, even where the opposing party is
different in each case.” Cliff v. Internal Revenue Service, 496
F.Supp. 568, 576 (S.D.N.Y. 1980). Similarly, the doctrine of
res judicata also bars claims “where the party against whom
res judicata is asserted has a substantial identity with a party
in a prior litigation where his interests were represented in
the prior action.” Grossman v. Axelrod, 466 F. Supp. 770, 775
(S.D.N.Y. 1979), aff'd, 646 F.2d 768 (2d Cir. 1981). Here,
there is a substantial identity of interest between the City and
the individual NYPD employees that Plaintiff identifies.
Defendant also argues that Plaintiff fails to state a claim
against Detective O'Leary, Sergeant Fox, and Officer Guzik
for the additional reason that there is no cause of action in the
State of New York for negligent prosecution or investigation.
Doc. 13 at 11-12. If the Court were to allow Plaintiff to amend
his Complaint to include the individual NYPD officers,
Plaintiff's claims related to the alleged negligent investigation
would also be futile. See Pandolfo v. U.A. Cable Sys. of
Watertown, 568 N.Y.S.2d 981, 982 (4th Dept. 1991) (“As a
matter of public policy, there is no cause of action in the State
of New York for negligent prosecution or investigation”);
see also Wright v. Orleans Cty., No. 14 Civ. 00622A (LF),
2015 WL 5316410, at *21 (W.D.N.Y. Sept. 10, 2015) (noting
“negligent investigation ... is not recognized under New York
law”). Similarly, “negligent investigation [is not] a basis for
§ 1983 liability in the absence of some special relationship
creating an affirmative duty.” Wright, 2015 WL 5316410 at
*21. “Cases finding a special relationship typically involve a
clear promise to take specific action on behalf of the plaintiff,
such as a promise to arrest a violent neighbor ‘first thing
in the morning.’ ” Damato v. City of N.Y., No. 06 Civ.
3030 (DC), 2008 WL 2019122, at *3 (S.D.N.Y. May 12,
2008). Additionally, “[a]n assurance to perform a basic police
function, without more, does not amount to a promise to act
affirmatively on behalf of plaintiffs.” Id. Plaintiff here has
not claimed any duty, nor pleaded any facts consistent with a
special relationship.
*11 Therefore, Plaintiff's claims against the individual
officers would likewise not be sufficient to overcome a
motion to dismiss. 11
11 Similarly, Defendant argues that to the extent any
claims may be read to assert claims under New
York state law, these claims must be dismissed
because Plaintiff did not file a Notice of Claim
within ninety days after the incident. Id. at 15-16.
The Court need not consider this issue because it
finds that these claims would be barred under the
doctrines of res judicata and collateral estoppel.
B. Leave to Amend to Add the City's Lawyers is Futile
Because They Are Entitled to Absolute Immunity.
The sole claim that the Court does not dismiss on the basis
of collateral estoppel or res judicata is Plaintiff's claim
regarding actions taken by Corporation Counsel Carter and
ACC Barbabay. The Court finds that any attempt to sue
the City's lawyers in their individual capacities would be
futile because they are protected by the doctrine of absolute
immunity.
“In determining immunity, [courts] accept the allegations of
[the plaintiff's] complaint as true.” Kalina v. Fletcher, 522
U.S. 118, 122 (1997); see also Shmueli v. City of New York,
424 F.3d 231, 233 (2d Cir. 2005). Courts construe Section
1983 “in harmony with general principles of tort immunities
and defenses.” Filarsky v. Delia, 132 S. Ct. 1657, 1665 (2012)
(quotations and citation omitted). “City attorneys acting in
their official capacity in defense of civil suits are afforded
absolute immunity against § 1983 actions seeking damages.”
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Zbryski v. Bd. of Trustees of N.Y. Fire Dep't Pension Fund,
No. 01 Civ. 4801 (RCC), 2004 WL 2238503, at *6 (S.D.N.Y.
Oct. 4, 2004) (citations omitted); see also Spear v. Town
of W. Hartford, 954 F.2d 63, 66 (2d Cir. 1992); Barrett v.
United States, 798 F.2d 565, 572-73 (2d Cir. 1986). “[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).
Plaintiff's claim against the two attorneys stems entirely from
their actions in defending the City against Plaintiff's lawsuits.
Plaintiff alleges that ACC Barbabay acted dishonestly and
fraudulently in the state court proceeding and that Carter
further engaged in a cover-up “based on racial and age
discrimination.” Compl. ¶¶ 10-12. Absolute immunity thus
bars suit for damages against them and any attempts to amend
would be futile. Karris v. Varulo, No. 14 Civ. 1077 (SJF), 2014
WL 1414483, at *4 (E.D.N.Y. Apr. 10, 2014) (concluding
that granting pro se prisoner leave to amend would be futile
because defendants were entitled to absolute immunity, and
collecting cases). Therefore the Court does not grant leave to
amend as to Carter 12 and ACC Barbabay.
12 Defendant also argues that all of Plaintiff's claims
against Carter also fail because Carter had no
personal involvement in the alleged constitutional
deprivations. Doc. 13 at 14-15. Because the Court
finds that Carter is entitled to absolute immunity,
the Court need not consider whether Plaintiff's
claim against Carter would be barred for a lack of
personal involvement.
VI. CONCLUSION
*12 For the reasons set forth above, Defendant's motion to
dismiss is GRANTED with prejudice. The Clerk of the Court
is respectfully directed to terminate the motion, Doc. 10, close
the case, and mail a copy of this Order to Plaintiff.
It is SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2016 WL 7177509
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O'Callaghan v. City of New York
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (2)
Title PDF Court Date Type
1. Reply Memorandum of Law in Further Support of
Defendant City of New York's Motion to Dismiss the
Complaint
James O'CALLAGHAN, Plaintiff, v. CITY OF NEW YORK,
Defendant.
2016 WL 8117476
— S.D.N.Y. July 13, 2016 Motion
2. Defendant City of New York's Memorandum of Law
in Support of Its Motion to Dismiss the Complaint
James O'CALLAGHAN, Plaintiff, v. CITY OF NEW YORK,
Defendant.
2016 WL 8117477
— S.D.N.Y. May 09, 2016 Motion
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History
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Cole v. Smrtic, Slip Copy (2024)
2024 WL 4870495
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2024 WL 4870495
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Matthew H. COLE, Plaintiff,
v.
Honorable Michael W. SMRTIC, et al. Defendants.
No. 1:24-CV-00847 (MAD/CFH)
|
Signed November 21, 2024
Attorneys and Law Firms
MATTHEW H. COLE, 271 Market Street, Amsterdam, New
York 12010, Plaintiff pro se.
REPORT-RECOMMENDATION & ORDER
CHRISTIAN F. HUMMEL, United States Magistrate Judge
I. In Forma Pauperis
*1 Plaintiff pro se Matthew H. Cole (“plaintiff”)
commenced this action (No. 1:24-CV-00623) on May 6,
2024, by filing a complaint. See Dkt. No. 1 (“Compl.”).
On September 26, 2024, plaintiff submitted what the Court
construes to be a supplement to the complaint. 1 See Dkt. No.
7. In lieu of paying this Court's filing fees, he submitted an
application for leave to proceed in forma pauperis (“IFP”).
See Dkt. No. 2. The undersigned has reviewed plaintiff's IFP
application and determines that he financially qualifies to
proceed IFP. 2 Thus, the Court proceeds to its review of the
complaint pursuant to 28 U.S.C. § 1915. Plaintiff has also
submitted for the Court's review a Pro Se Application for
Permission to File Electronically and a Motion to Appoint
Counsel. See Dkt. Nos. 4, 5.
1 The submission includes a letter addressed to
District Judge D'Agostino, titled, “Requirements
for Cases Removed From State Court,” Dkt. No.
7; a receipt from Montgomery County Clerk dated
December 8, 2022; and a “Notice of Claim” with
the caption of Cole v. County of Montgomery,
dated December 7, 2022. See Dkt. No. 7. The
undersigned has reviewed this submission in
connection with the initial review of plaintiff's
complaint. See Sira v. Morton, 380 F. 3d 57, 67 (2d
Cir. 2004).
2 Plaintiff is advised that, although he has been
granted IFP status, he is still required to pay all fees
and costs he may incur in this action, including,
but not limited to, copying fees, transcript fees, and
witness fees.
II. Initial Review
A. Legal Standards
Section 1915 of Title 28 of the United States Code directs
that, when a plaintiff seeks to proceed IFP, “the court shall
dismiss the case at any time if the court determines that ... the
action or appeal (i) is frivolous or malicious; (ii) fails to state a
claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2)(B). Thus, it is a court's responsibility to
determine that a plaintiff may properly maintain his complaint
before permitting him to proceed with his action.
Where, as here, the plaintiff proceeds pro se, “the court
must construe his submissions liberally and interpret them
to raise the strongest arguments that they suggest.” Kirkland
v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014)
(per curiam) (internal quotation marks omitted); see also
Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). As
the Second Circuit stated,
There are many cases in which we have said that a pro
se litigant is entitled to “special solicitude,” that a pro se
litigant's submissions must be construed “liberally,” and
that such submissions must be read to raise the strongest
arguments that they “suggest[.]” At the same time, our
cases have also indicated that we cannot read into pro se
submissions claims that are not “consistent” with the pro
se litigant's allegations, or arguments that the submissions
themselves do not “suggest,” that we should not “excuse
frivolous or vexatious filings by pro se litigants,” and that
pro se status “does not exempt a party from compliance
with relevant rules of procedural and substantive law[.]”
*2 Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
477 (2d Cir. 2006) (citations and footnote omitted); see also
Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92
(2d Cir. 2008).
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“The [Second Circuit]’s ‘special solicitude’ for pro se
pleadings has its limits, because pro se pleadings still must
comply with ... the Federal Rules of Civil Procedure [(‘Fed.
R. Civ. P.’)].” Kastner v. Tri State Eye, No. 19-CV-10668
(CM), 2019 WL 6841952, at *2 (S.D.N.Y. Dec. 13, 2019)
(quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)).
Pleading guidelines are provided in the Federal Rules of
Civil Procedure. Specifically, Rule 8 requires the pleading to
include:
(1) a short and plain statement of the grounds for the court's
jurisdiction ...;
(2) a short and plain statement of the claim showing that
the pleader is entitled to relief; and
(3) a demand for the relief sought...
FED. R. CIV. P. 8(a). Although “[n]o technical form is
required,” the Federal Rules make clear that each allegation
contained in the pleading “must be simple, concise, and
direct.” Id. at 8(d). “The purpose ... is to give fair notice
of the claim being asserted so as to permit the adverse
party the opportunity to file a responsive answer, prepare an
adequate defense and determine whether the doctrine of res
judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54,
54 (N.D.N.Y. 1999) (internal quotation marks and citations
omitted). Allegations that “are so vague as to fail to give the
defendants adequate notice of the claims against them” are
subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104
(2d Cir. 2009) (summary order).
Further, Fed. R. Civ. P. 10 provides:
[a] party must state its claims or
defenses in numbered paragraphs,
each limited as far as practicable to
a single set of circumstances. A later
pleading may refer by number to
a paragraph in an earlier pleading.
If doing so would promote clarity,
each claim founded on a separate
transaction or occurrence – and each
defense other than a denial – must be
stated in a separate count or defense.
FED. R. CIV. P. 10(b). This serves the purpose of “provid[ing]
an easy mode of identification for referring to a particular
paragraph in a prior pleading[.]” Flores, 189 F.R.D. at 54
(internal quotation marks and citations omitted). A complaint
that fails to comply with the pleading requirements “presents
far too a heavy burden in terms of a defendant's duty to
shape a comprehensive defense and provides no meaningful
basis for the Court to assess the sufficiency of their claims.”
Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As
the Second Circuit has held, “[w]hen a complaint does not
comply with the requirement that it be short and plain, the
court has the power, on its own initiative ... to dismiss the
complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
1988) (citations omitted). However, “[d]ismissal ... is usually
reserved for those cases in which the complaint is so confused,
ambiguous, vague, or otherwise unintelligible that its true
substance, if any, is well disguised.” Id. (citations omitted).
*3 This Court also has an overarching obligation to
determine that a claim is not legally frivolous before
permitting a pro se plaintiff's complaint to proceed. See, e.g.,
Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d
362, 363 (2d Cir. 2000). “Legal frivolity ... occurs where
‘the claim is based on an indisputably meritless legal theory
[such as] when either the claim lacks an arguable basis in
law, or a dispositive defense clearly exists on the face of the
complaint.’ ” Aguilar v. United States, Nos. 99-MC-0304, 99-
MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999) 3
(quoting Livingston v. Adirondack Beverage Co., 141 F.3d
434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490
U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal
theory ... or factual contentions lack an arguable basis.”).
3 Any unpublished cases cited within this Report-
Recommendation & Order have been provided to
plaintiff.
B. Complaint
Plaintiff's civil cover sheet indicates that he seeks to bring this
action pursuant to “Title U.S.C. 18 Section 241, Conspiracy
Against Rights & Title U.S.C. 18 Section 242 Deprivation
of rights Under Color of Law.” Dkt. No. 1-1 at 1. The civil
cover sheet further provides that his cause of action involves,
“Violation of Due process, Speedy Trial Rights, Ineffective
Assistance of Counsel. I feel I am being targeted for being
black and gay.” Id.
Plaintiff's form complaint checks the box indicating that
he seeks to bring this case pursuant to 42 U.S.C. § 1983.
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See Compl. at 3. In response to the question in the form
complaint asking in “what federal constitutional or statutory
right(s) do you claim is/are being violated by state or local
officials,” plaintiff responds, “Due Process, 30.30 Speedy
Trial Violation, Ineffective Assistance of counsel.” 4 Id. In
response to a question asking him to explain “how each
defendant acted under color of state or local law,” plaintiff
states “Each judge deliberately denied me due process, and
refused to look into the paperwork to see that i was improperly
denied my speedy trial rights. It was a tean [sic] effort.
The ADA/Special Prosecutor withheld potential exculpatory
material which was usd [sic] against me. All mentioned
actions were done and upheld even after I showed federal law
with supportive case law as a pro se litigant.” Id.
4 Although plaintiff generally references ineffective
assistance of counsel, Compl. at 4, he does not
name any attorney who may have represented
him. Any claims against the prosecutor would
not be considered ineffective assistance of counsel
because Mr. Maxwell, as the prosecutor, was not
plaintiff's attorney.
Plaintiff provides that his “case is still on appeakl [sic] in
Appellate Court Third Department. I feel they are guilty,
or part of what I call a scandal. I went to them from the
very start with a complaint to the grievance committee,
where they denied any wrongdoing. It must be ok to violate
Constitutional rights there. This is from March 2019 to
present” Id.
In response to a question that asks plaintiff to state the facts
underlying his claims, plaintiff states, “Please see attached
Article 78 that is attached. It was dismissed being in the wrong
court, but is on point.” Id. at 4. Plaintiff did not provide the
Court with any such attachment and has not submitted any
Article 78 materials. See Compl., Dkt. No. 7.
In response to the form complaint's question asking about
any injuries suffered as a result of the conduct he complains
of, plaintiff states, “Sever [sic] depression over 20 years,
irreperable [sic] harm, defamation of charcter [sic] by
arguments not legally allowed to give. Loss of income,
inability to gain and keep employment, mental trauma,
instilled disbelief in justice in the legal system, familial
traumam [sic] due to my legal battles.” Id. Indicating the relief
sought, plaintiff states
*4 Petitioner seeks reinstatement
of driving priveldges [sic], and 10
million dollars for damages caused by
conflict of interest, deliberate violation
of Due Process, Speedy Trial rights,
Ineffective assistance of counsel,
malice, Brady Violation, Petitioner
claims deliberate misconduct and
malice in Montgomery County Court,
the Saratoga Disrict Attorney's Office,
and the Supreme Court Appellate
Division Third department. ** This is
subject to change if an attorney agrees
to represent.
Compl. at 5. Although he typed his name, plaintiff does not
sign the complaint where a signature is indicated. See id. at 8.
Plaintiff provides in his supplement that he “removed this
action to district court asserting jurisdiction pursuant to 42
U.S.C. 1983, and § 1441.” Dkt. No. 7. at 1. Plaintiff states
that he removed this case from Montgomery County Supreme
Court. See id. He states that he seeks or sought the removal
because he was told he was “not guarantee counsel” at the
state, but that “[i]n Federal Court, there is that option, pending
qualification, and I am told, if a lawyer agrees to take it, then
I really have something. I am in dire need of counsel.” Id.
Plaintiff states, “[t]he ineffective assistance of counsel and
The County Court are a matter already mentioned in the
appeal.” Dkt. No. 7 at 2. Plaintiff states that “[t]o get my
conviction, I allege judicial and prosecutorial misconduct,
and ineffective assistance of counsel × 4. That is why I am
pro se. I had to protect myself when appointed counsel did
not. It also went through a couple judges which is why they
are mentioned in the preliminary complaint/paperwork, and
why I mention bias.” Id. Plaintiff states he can “prove each
thing I saw not just with my words, but with transcripts 5 from
the County Court, and the Adult Drug Court.” Id. Plaintiff
refers to being drug free for four and a half years and having
academic success in college. Id. at 3. He states that he wishes
this Court to hear his case because he believes he will not
“see bias” in federal court “like I saw in others.” Id. Plaintiff
states that he “also put in a Notice of Removal in the Federal
Court for those criminal charges that led to the Complaint. I
do not trust the assigned appellate attorney. That case too has
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Constitutional violations. That case number is 1:24-CR-301
(AMN).” Id.
5 Plaintiff did not provide any transcripts.
C. Discussion 6
6 As a courtesy, the Court has provided plaintiff with
copies of any unpublished cases cited within this
Report-Recommendation & Order.
1. Rule 8
As a threshold issue, plaintiff's complaint fails to meet the
requirements of Rule 8. See FED. R. CIV. P. 8(a)(2). He
does not provide a short and plain statement of the claim
demonstrating why he is entitled to relief. Although he
makes general references to both an Article 78 proceeding
and a criminal proceeding and unexplained references to
“Due Process, 30.30 Speedy Trial Violation, Ineffective of
Counsel,” he does not provide factual support or context.
Thus, his complaint does not provide “fair notice” to
defendants of the claims against them. See FED. R. CIV. P.
8(a)(2).
2. Heck v. Humphrey
However, there are several substantive concerns that further
lead the undersigned to recommend dismissal. First, in
referencing to “Due Process, 30.30 Speedy Trial Violation,
Ineffective of Counsel” and explicitly referencing a criminal
conviction, it is clear that plaintiff is attempting to seek
some kind of review of a criminal proceeding or conviction.
See Compl. at 3. Plaintiff also accuses all named judges
of denying him due process and contends that an unnamed
“ADA/Special Prosecutor withheld potential exculpatory
material which was usd [sic] against me.” Compl. at 4.
Plaintiff also references a conviction. See Dkt. No. 7 at 4.
Such claims would be barred by Heck v. Humphrey.
*5 As this Court, citing the District of Connecticut, has set
forth:
In Heck, the Supreme Court held that in order for a
plaintiff “to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction
or sentence invalid, a § 1983 plaintiff must prove that
the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by
a state tribunal authorized to make such determination, or
called into question by a federal court's issuance of a writ
of habeas corpus.” Id. at 486-87. The court further held
that “[a] claim for damages bearing that relationship to
a conviction or sentence that has not been so invalidated
is not cognizable under § 1983.” Id. at 487 (emphasis in
original).
[ ]
Thus, under Heck and its progeny, if a conviction has not
been invalidated previously, a Ҥ 1983 action is barred ...
no matter the target of the prisoner's suit ... if success in
that action would necessarily demonstrate the invalidity
of confinement or its duration.” Wilkinson v. Dotson, 544
U.S. 74, 81-82 (2005) (emphasis in original).
Ali v. Shattuck, No. 8:24-CV-0128 (DNH/CFH), 2024
WL 2747619, at *3 (N.D.N.Y. May 29, 2024), report-
recommendation adopted sub nom. Ali v. Dow, No. 8:24-
CV-128, 2024 WL 3460745 (N.D.N.Y. July 18, 2024)
(quoting Zografidis v. Richards, No. 3:22-CV-00631 (AVC),
2022 WL 21756775, at *7 (D. Conn. July 6, 2022), report and
recommendation adopted (Oct. 7, 2022), aff'd, No. 22-3197,
2023 WL 7538211 (2d Cir. Nov. 14, 2023)).
Plaintiff has failed to demonstrate that any criminal charge(s),
conviction, or sentence has been “reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into
question by a federal court's issuance of a writ of habeas
corpus.” Zografidis, 2022 WL 21756775, at *7. Although
plaintiff's complaint wants for detail, the undersigned can
clearly determine that plaintiff seeks review of his criminal
proceedings, conviction, and/or sentence. The claims plaintiff
seeks to pursue relate to allegations that he was denied
due process, denied speedy trial rights, and experienced
ineffective assistance of counsel. Accordingly, plaintiff's
claims are barred by Heck unless and until he can demonstrate
favorable termination of his criminal conviction. 7
7 The undersigned recognizes that claims that are
determined to be barred by Heck are dismissed
without prejudice. However, the undersigned has
recommended dismissal with prejudice because
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plaintiff has only named defendants who are
immune from relief. Accordingly, the undersigned
is recommending dismissal of the claims based on
these immunities, rather than a Heck dismissal. The
undersigned has included the Heck review for sake
of completeness.
3. Immunities
Plaintiff names as defendants several defendants who are
immune from suit. Insofar as plaintiff names Hon. Michael
W. Smrtic, Interim Montgomery County Judge and Tatiana N.
Coffinger, “County/Family/Surrogate's Court Judge” 8 such
claims would be barred by judicial immunity.
8 Although plaintiff provides no facts regarding
any family court proceedings, that he named a
family court judge and makes general reference
to that he seeks review over actions taken by
a family court judge. Even if plaintiff were to
amend his complaint to provide facts about any
possible family court proceedings and details
about any alleged violations of his rights that he
believes he faced in that Court, if plaintiff seeks
this Court's review of an order of the family
court, such review would be barred by Rooker-
Feldman, and if plaintiff seeks this Court's review
or intervention of a currently pending/ongoing
Family Court proceeding, such review would be
barred by Younger. See Porter v. Nasci, No. 5:24-
CV-0033 (GTS/TWD), 2024 WL 1142144, at
*4 (N.D.N.Y. Mar. 15, 2024) (citations omitted),
report and recommendation adopted, 2024 WL
3158645 (N.D.N.Y. June 25, 2024) (“Under the
Rooker-Feldman doctrine, a federal district court
lacks authority to review a final state court order
or judgment where a litigant seeks relief that
invites the federal district court to reject or overturn
such a final state court order or judgment.”); see
also Diamond “D” Constr. Corp. v. McGowan,
282 F.3d 191, 198 (2d Cir. 2002) (“[F]ederal
courts [must] abstain from taking jurisdiction over
federal constitutional claims that involve or call
into question ongoing state proceedings.”).
*6 “With minor exceptions, judges are entitled to absolute
immunity for actions relating to the exercise of their judicial
functions.” Zavalidroga v. Girouard, No. 6:17-CV-682 (BKS/
ATB), 2017 WL 8777370, at *8 (N.D.N.Y. July 7, 2017)
(citing Mireles v. Waco, 502 U.S. 9, 9-10 (1991) (per
curiam)). “Judicial immunity has been created for the public
interest in having judges who are ‘at liberty to exercise
their functions with independence and without fear of
consequences.’ ” Id. (quoting Huminski v. Corsones, 396
F.3d 53, 74 (2d Cir. 2004)). “Judicial immunity applies even
when the judge is accused of acting maliciously or corruptly.”
Id. (citation omitted); see Positano v. New York, No. 12-
CV-2288 (ADS/AKT), 2013 WL 880329, at *4 (E.D.N.Y.
Mar. 7, 2013) (explaining that the plaintiff may not bring
action against a judge for actions taken in his judicial capacity,
even when the actions violated the ADA).
“Judicial immunity is immunity from suit, not just immunity
from the assessment of damages.” Zavalidroga, 2017 WL
8777370, at *8 (citing Mitchell v. Forsyth, 472 U.S. 511,
526 (1985)). “The only two circumstances in which judicial
immunity does not apply is when he or she takes action
‘outside’ his or her judicial capacity and when the judge takes
action that, although judicial in nature, is taken ‘in absence
of jurisdiction.’ ” Id. (quoting Mireles, 502 U.S. at 11-12).
“In determining whether or not a judge acted in the clear
absence of all jurisdiction, the judge's jurisdiction is ‘to be
construed broadly, and the asserted immunity will only be
overcome when the judge clearly lacks jurisdiction over the
subject matter.’ ” Pacherille v. Burns, 30 F. Supp. 3d 159,
163 (N.D.N.Y. 2014) (quoting Ceparano v. Southampton Just.
Ct., 404 F. App'x 537, 539 (2d Cir. 2011) (summary order)).
“Whether a judge acted in a judicial capacity depends on
the nature of the act [complained of] itself, i.e., whether it
is a function normally performed by a judge, and [on] the
expectations of the parties, i.e., whether they dealt with the
judge in his judicial capacity.” Ceparano, 404 F. App'x at 539
(internal quotation marks and citation omitted). “Further, if
the judge is performing in his judicial capacity,” he “ ‘will not
be deprived of immunity because the action he took was in
error, was done maliciously, or was in excess of his authority;
rather, he will be subject to liability only when he has acted
in the clear absence of all jurisdiction.’ ” Ceparano, 404 F.
App'x at 539 (quoting Stump v. Sparkman, 435 U.S. 349, 362
(1978)). “Judges are not, however, absolutely ‘immune from
liability for nonjudicial actions, i.e., actions not taken in the
judge's judicial capacity.’ ” Bliven v. Hunt, 579 F.3d 204, 209
(2d Cir. 2009) (quoting Mireles, 502 U.S. at 11).
Thus, as plaintiff names the judicial defendants in relation to
actions or omissions that they took in their roles as judges,
their actions are protected by absolute judicial immunity.
To the extent plaintiff names Hon. Felix Catena, “Retired
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Administrative Law Judge,” Judge Catena is also protected
by absolute judicial immunity as a judge's retirement, “does
not impact [his or] her immunity for acts taken in [his or]
her official capacity before her retirement.” McCray v. Lewis,
No. 16-CV-3855 (WFK/VMS), 2016 WL 4579081, at *2
(E.D.N.Y. Aug. 31, 2016). To the extent plaintiff may seek to
sue the judges their official capacities, the suit is barred by the
Eleventh Amendment. See Pacherille v. Burns, 30 F. Supp.
3d 159, 163 n.5 (N.D.N.Y. 2014) (“The Eleventh Amendment
shields judges from suit to the extent that they are sued in their
official capacities.”).
*7 In addition, plaintiff also references, exclusively in his
“relief” section of the form complaint, “the Supreme Court
Appellate Division, Third Department” when stating that he
experienced “deliberate misconduct and malice.” Compl. at
7. He does not name this Court as a defendant anywhere in
the complaint. However, even if plaintiff were to have named
the Appellate Division, Third Department as a defendant,
such defendant would also need to be dismissed based on
Eleventh Amendment immunity as the Appellate Division “is
merely an agency or arm of New York State.” Benyi v. New
York, No. 3:20-CV-1463 (DNH/ML), 2021 WL 1406649, at
*5 (N.D.N.Y. Mar. 23, 2021), report and recommendation
adopted, No. 3:20-CV-1463, 2021 WL 1404555 (N.D.N.Y.
Apr. 13, 2021) (citation omitted). Accordingly, to the extent
a liberal reading of the complaint may suggest that plaintiff
seeks to name the Appellate Division as a defendant, such
claims are barred by Eleventh Amendment immunity. See
Compl.
Finally, insofar as plaintiff seeks to sue Prosecutor Samuel V.
Maxwell, Esq., Assistant District Attorney, in addition to the
Heck issues noted above, he would be protected by absolute
prosecutorial immunity. As this Court has recently reiterated,
Prosecutors enjoy “absolute immunity from § 1983 liability
for those prosecutorial activities ‘intimately associated
with the judicial phase of the criminal process.’ ” Barr v.
Abrams, 810 F.2d 358, 360-61 (2d Cir. 1987) (citing Imbler
v. Pachtman, 424 U.S. 409, 430 (1976)). This immunity
encompasses “virtually all acts, regardless of motivation,
associated with [the prosecutor's] function as an advocate.”
Hill v. City of New York, 45 F.3d 653, 661 (2d Cir.
1995) (internal quotations and citation omitted). Absolute
immunity applies when a prosecutor's conduct, acting as an
advocate during the judicial phase of the criminal process,
“involves the exercise of discretion.” Flagler v. Trainor,
663 F.3d 543, 547 (2d Cir. 2011) (citing Kalina v. Fletcher,
522 U.S. 118, 127 (1997)).
Accordingly, absolute immunity extends to functions such
as “deciding whether to bring charges and presenting a case
to a grand jury or a court, along with the tasks generally
considered adjunct to those functions, such as witness
preparation, witness selection, and issuing subpoenas.”
Simon v. City of New York, 727 F.3d 167, 171 (2d
Cir. 2013) (citing Imbler, 424 U.S. at 431 n.33); see
also Flagler, 663 F.3d at 547 (explaining, “the Supreme
Court has found prosecutors absolutely immune from
suit for alleged misconduct during a probable cause
hearing, in initiating a prosecution, and in presenting
the State's case ... [but] withheld absolute immunity for
conduct unrelated to advocacy, such as giving legal advice,
holding a press conference, or acting as a complaining
witness.”). “[O]nce a court determines that challenged
conduct involves a function covered by absolute immunity,
the actor is shielded from liability for damages regardless
of the wrongfulness of his motive or the degree of injury
caused ....” Bernard v. Cnty. of Suffolk, 356 F.3d 495, 503
(2d Cir. 2004) (citing Cleavinger v. Saxner, 474 U.S. 193,
199-200 (1985)).
Williams v. Atkins, No. 5:24-CV-0573 (DNH/TWD), 2024
WL 3649849, at *5 (N.D.N.Y. June 11, 2024), report
and recommendation adopted, No. 5:24-CV-573, 2024 WL
3548760 (N.D.N.Y. July 26, 2024).
Plaintiff appears to suggest that Mr. Maxwell “withheld
potentially exculpatory material” that was used against
him. Compl. at 4. Beyond the Heck barriers already
discussed, even if plaintiff could amend to provide greater
detail, absolute immunity would extent to even this alleged
misconduct as such allegations clearly fall within the scope of
prosecutorial immunity. Accordingly, it is recommended that
any claims against ADA Samuel V. Maxwell be dismissed
for absolute prosecutorial immunity. “Furthermore, because
the District Attorney's prosecutorial immunity is substantive
and not something that can be corrected by a better pleading,
I recommend that the dismissal be with prejudice.” Phillips
v. New York, No. 5:13-CV-927, 2013 WL 5703629, at *5
(N.D.N.Y. Oct. 17, 2013) (quoting Cuoco v. Moritsugu, 222
F.3d 99, 223 (2d Cir. 2000)). 9
9 Plaintiff appears to characterize his submissions as
a purported removal to federal court or suggests
that he seeks to remove his case from Montgomery
County Court to this Court. See Dkt. No. 7
(citing 28 U.S.C. § 1441). However, in addition
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to the infirmities mentioned above, plaintiff has
not demonstrated that any proceeding related to
this complaint has been properly removed to, or
is subject to removal to, this Court. See, e.g.,
28 U.S.C. § 1446. Indeed, plaintiff's submissions
appear to indicate that plaintiff is the plaintiff in the
County Court action. See id. § 1446(a).
III. Conclusion
*8 It is ORDERED, that plaintiff's in forma pauperis
application (dkt. no. 2) be GRANTED; and it is
RECOMMENDED, that plaintiff's section 1983 claims
against Honorable Michael W. Smrtic; Tatiana N. Coffinger,
County/Family/Surrogate's Court Judge; and Felix Catena,
Retired Administrative Law Judge (Dkt. Nos. 1, 7) be
DISMISSED WITH PREJUDICE as follows: (1) claims
brought against them in their personal/individual capacities
for judicial immunity, and (2) claims brought against them in
their official capacities for Eleventh Amendment immunity;
and it is further
RECOMMENDED, that plaintiff's section 1983 claims
against Assistant District Attorney Samuel V. Maxwell (Dkt.
Nos. 1, 7) be DISMISSED WITH PREJUDICE due to
absolute prosecutorial immunity; and it is further
RECOMMENDED, that, to the extent a liberal reading
of the complaint may suggest that plaintiff seeks to name
the Appellate Division, Third Department, as a defendant
(Dkt. Nos. 1, 7), such claims be DISMISSED WITH
PREJUDICE as barred by Eleventh Amendment immunity,
and it is
RECOMMENDED, that plaintiff's pro se motion for
permission to file electronically (dkt. no. 4) and motion to
appoint counsel 10 (dkt. no. 5) be DISMISSED AS MOOT
based on the above recommendations, and it is
10 The undersigned also notes that plaintiff did
not contend that he made any efforts to obtain
counsel on his own, show proof of any attorneys
he contacted. See Terminate Control Corp v.
Horowitz, 28 F.3d 1335 (2d Cir. 1994). See Dkt.
No. 5.
ORDERED, that the Clerk serve this Report-
Recommendation & Order on plaintiff in accordance with the
Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), parties have
FOURTEEN (14) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN (14) DAYS
WILL PRECLUDE APPELLATE REVIEW. Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y
of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see
also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 72. 11
11 If you are proceeding pro se and are served with
this Report-Recommendation and Order by mail,
three (3) additional days will be added to the
fourteen (14) day period, meaning that you have
seventeen (17) days from the date the Report-
Recommendation and Order was mailed to you to
serve and file objections. FED. R. CIV. P. 6(d).
If the last day of that prescribed period falls on
a Saturday, Sunday, or legal holiday, then the
deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Id.
§ 6(a)(1)(c).
All Citations
Slip Copy, 2024 WL 4870495
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Cole v. Smrtic
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Filings (1)
Title PDF Court Date Type
1. Docket 1:24-CV-00847
Cole v. Smrtic et al
— N.D.N.Y. July 08, 2024 Docket
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Cole v. Smrtic
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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
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Cole v. Smrtic
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Scott v. Djeck, Not Reported in F.Supp.2d (2010)
2010 WL 145297
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2010 WL 145297
Only the Westlaw citation is currently available.
This decision was reviewed by West editorial
staff and not assigned editorial enhancements.
United States District Court,
N.D. New York.
Maureen E. SCOTT, Plaintiff,
v.
Heather DJECK; Doug Campbell; Desiree Golden; Town
of Forestport Judge Mark Ritter; Town of Forestport
Court Clerk; Brian Miga, Town of Forestport Supervisor;
Kathy Schmelzle, Forestport Town Clerk ′07; Mr.
Smith, Forestport Town Codes Officer; Ms. Paschke,
Forestport Town Receiver of Taxes; Scott McNamara,
Dist. Atty., Oneida County; Grant Garramone, Assist.
Dist. Atty., Oneida County; Oneida County Psychiatric
Ctr.; Dr. Krishnappa, Oneida County Psychiatric Ctr.;
Dr. Mallick, Oneida County Psychiatric Ctr.; Dr.
Thesee, Oneida County Psychiatric Ctr.; Dr. Mendolez,
Oneida County Psychiatric Ctr.; Cathy Totaro, Nurse
Pract., Oneida County Psychiatric Ctr.; York St. Clinic;
Ms. Lemon, Social Worker, York St. Clinic; Mr.
Mills, R.N., York Street Clinic; Dr. Smith, York St.
Clinic; Samuel Giacona, Atty.; William Stevens, Atty.;
Bernabei & Wachtel, PLLC; Kati Daffan, Bernabei &
Wachtel; Patricia Branch, Office Manager, Bernabei
& Wachtel; Smith, Sovik, Kendrick & Sugnet, P.C.;
Christopher S. Ciaccio, Atty.; Olinsky & Shurtliff, LLC;
Silberstein, Awad & Miklos, P.C.; Carroll & Carroll
Lawyers, P.C.; Kenny & Kenny, PLLC; U.S. Comm'n
of Civ. Rights; Green & Foushee; Richard N. Bach;
the Nbhd. Ctr., c/o Linda Parker; Kehoe and Nesbuth,
Pub. Def. Office, Utica, N.Y.; Judge James Tormey,
Supreme Ct., Oneida County; Judge Hester, Supreme
Ct., Oneida County; Trace, Assis. N.Y.S. Atty. Gen.;
M.H.L.S. Michael McCormick, Atty., Oneida County
Psychiatric Ctr.; Oneida County Health Dept.; Daniel W.
Gilmore, Dir. of Envtl. Health, Oneida County; Town
of Booneville Judge Escziac; N.Y.S. Police; Oneida
County Sheriff's Dept.; Sheriff, Oneida County; N.Y.S.
Atty. Gen.; N.Y.S. Court Sys.; U.S.Ct. Sys.; N.Y.S.
Health Dept.; and N.Y.S. Governor's Office, Defendants.
No. 5:09–CV–1122 (GTS/GHL).
|
Jan. 11, 2010.
Attorneys and Law Firms
Maureen E. Scott, Auburn, NY, pro se.
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DECISION and ORDER
HON. GLENN T. SUDDABY, District Judge.
*1 Currently before the Court in this pro se civil rights
action is a Report–Recommendation, filed by United States
Magistrate Judge George H. Lowe on November 5, 2009,
recommending, inter alia, that a number of Defendants
be dismissed from this action, and that the Court dismiss
Plaintiff's entire Complaint if she fails to file an Amended
Complaint within thirty (30) days of the filing date of
this Decision and Order. (Dkt.Nos.2, 5.) Plaintiff has not
filed an Objection to the Report–Recommendation. For the
reasons set forth below, Magistrate Judge Lowe's Report–
Recommendation is accepted and adopted in its entirety;
forty-four (44) Defendants are dismissed from this action;
and the remainder of Plaintiff's Complaint is conditionally
dismissed unless, within thirty (30) days of the filing date
of this Decision and Order, Plaintiff files an Amended
Complaint that states a claim upon which relief can be granted
(with respect to her remaining causes of action).
I. STANDARD OF REVIEW
When specific objections are made to a magistrate judge's
report-recommendation, the Court makes a “de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection
is made.” See 28 U.S.C. § 636(b)(1)(C). 1 When only
general objections are made to a magistrate judge's report-
recommendation (or the objecting party merely repeats the
allegations of his pleading), the Court reviews for clear error
or manifest injustice. See Brown v. Peters, 95–CV–1641,
1997 WL 599355, at *2–3 (N.D.N.Y. Sept.22, 1997) (Pooler,
J.) [collecting cases], aff'd without opinion, 175 F.3d 1007
(2d Cir.1999). 2 Similarly, when a party makes no objection
to a portion of a report-recommendation, the Court reviews
that portion for clear error or manifest injustice. See Batista v.
Walker, 94–CV2826, 1995 WL 453299, at *1 (S.D.N.Y. July
31, 1995) (Sotomayor, J.) [citations omitted]; Fed.R.Civ.P.
72(b), Advisory Committee Notes: 1983 Addition [citations
omitted]. After conducting the appropriate review, the Court
may “accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C).
1 On de novo review, a district court will ordinarily
refuse to consider arguments, case law and/or
evidentiary material that could have been, but
was not, presented to the magistrate judge in the
first instance. See, e.g., Paddington Partners v.
Bouchard, 34 F.3d 1132, 1137–38 (2d Cir.1994)
(“In objecting to a magistrate's report before the
district court, a party has no right to present
further testimony when it offers no justification for
not offering the testimony at the hearing before
the magistrate.”) [internal quotation marks and
citations omitted]; Pan Am. World Airways, Inc. v.
Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n. 3 (2d
Cir.1990) (district court did not abuse discretion
in denying plaintiff's request to present additional
testimony where he “offered no justification for
not offering the testimony at the hearing before the
magistrate”).
2 See also Vargas v. Keane, 93–CV–7852, 1994
WL 693885, at *1 (S.D.N.Y. Dec.12, 1994)
(Mukasey, J.) (“[Petitioner's] general objection
[that a] Report ... [did not] redress the constitutional
violations [experienced by petitioner] ... is a
general plea that the Report not be adopted ...
[and] cannot be treated as an objection within the
meaning of 28 U.S.C. § 636.”), aff'd, 86 F.3d 1273
(2d Cir.), cert. denied, 519 U.S. 895, 117 S.Ct. 240,
136 L.Ed.2d 169 (1996).
II. DISCUSSION
After carefully reviewing all of the papers in this
action, including Magistrate Judge Lowe's thorough Report–
Recommendation, the Court can find no error in the Report–
Recommendation, clear or otherwise. As a result, the Report–
Recommendation is accepted and adopted in its entirety.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Lowe's Report–
Recommendation (Dkt. No. 5) is ACCEPTED and
ADOPTED in its entirety; and it is further
ORDERED that the Clerk of the Court remove the words
“and children” after Plaintiff's name on the docket sheet; and
it is further
ORDERED that the Clerk of the Court add the following
entities as named Defendants to the docket: “Sheriff, Oneida
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County”; “New York State Attorney General”; “New York
State Court System”; “United States Court System”; “New
York State Health Department”; and “New York State
Governor's Office”; and it is further
*2 ORDERED that the Clerk of the Court further amend the
docket so as to (1) delete the words “Oneida Co. Psychiatric
Dietary” and replace them with the words “Oneida County
Psychiatric Center”, (2) delete the words “Bernabei and
(Katz) Wachtel, PLLC,” and replace them with the words
“Bernabei & Wachtel, PLLC”, and (3) delete the words
“N.Y.S. Atty Gen. RE. Asst. Atty Gen. Trace” and replace
them with the words “Trace, Assistant New York State
Attorney General”; and it is further
ORDERED that Plaintiff's claims against the following
forty-four (44) named Defendants are DISMISSED from this
action: (1) Heather Djeck; (2) Doug Campbell; (3) Desiree
Golden; (4) Michael McCormick; (5) Judge Hester; (6) Judge
Mark Ritter; (7) Judge James Tormey; (8) Judge Escziac; (9)
Grant Garramone; (10) New York State Attorney General;
(11) Assistant New York State Attorney General Trace;
(12) U.S. Commission of Civil Rights; (13) “U.S. Court
System”; (14) New York State Police; (15) “New York State
Court System”; (16) New York State Health Department;
(17) Scott McNamara; (18) Brian Miga; (19) Mr. Smith,
Town Codes Officer; (20) Kathy Schmelzle; (21) Town of
Forestport Court Clerk; (22) Ms. Paschke, Town Receiver
of Taxes; (23) Oneida County Psychiatric Center; (24) Dr.
Mendolez, Oneida County Psychiatric Center; (25) Cathy
Totaro; (26) Mr. Mills, R.N., Oneida County Psychiatric
Center; (27) Dr. Smith, Oneida County Psychiatric Center;
(28) Samuel Giacona, Esq.; (29) William Stevens, Esq.; (30)
Bernabei & Wachtel, PLLC; (31) Kati Daffan; (32) Patricia
Branch; (33) Smith, Sovik, Kendrick & Sugnet, P.C.; (34)
Christopher S. Ciaccio, Esq.; (35) Olinsky and Shurtliff, LLC;
(36) Silberstein, Awad & Miklos, P.C.; (37) Carroll & Carroll
Lawyers, P.C.; (38) Kenny & Kenny, PLLC; (39) Green &
Foushee; (40) Richard N. Bach; (41) Public Defender Kehoe;
(42) Public Defender Nesbuth; (43) Oneida County Health
Department; and (44) Daniel W. Gilmore; and it is further
ORDERED that, to the extent that Plaintiff claims that
the Sheriff of Oneida County “molested” her, that claim is
DISMISSED; and it is further
ORDERED that the remainder of the claims in Plaintiff's
Complaint (Dkt. No. 1) will be sua sponte DISMISSED in
their entirety, without prejudice, and without further Order of
this Court, unless, within THIRTY (30) DAYS of the filing
date of this Decision and Order, Plaintiff files an Amended
Complaint that states a claim upon which relief may be
granted (with regard to the causes of action not dismissed
above in this Decision and Order).
REPORT–RECOMMENDATION AND ORDER
GEORGE H. LOWE, United States Magistrate Judge.
The Clerk has sent to the Court a pro se civil rights complaint
submitted by Maureen E. Scott 1 (“Plaintiff”). Dkt. No. 1.
Plaintiff also submitted an application to proceed in forma
pauperis. Dkt. No. 2. Based on the following, I recommend
that Plaintiff file an amended complaint should Plaintiff wish
to avoid dismissal of this action.
1 Plaintiff previously filed two actions in this
District: Scott v. U.S. Supreme Court, et al., 5:98–
CV–1142 (TJM/GJD) (transferred to W.D.N.Y.)
and Scott v. Eden Park Nursing, 5:98–CV–1143
(TJM/GJD) (dismissed).
I. The Complaint
A. Plaintiff and Children
*3 Plaintiff seeks to bring the complaint on behalf of herself
and her children. Dkt. No. 1, at p. 1. 2 The complaint indicates
that the children are now adults. Id. However, Plaintiff, who
is a non-attorney, may not represent the claims of any other
person, including her adult offspring. Chase v. Czajka, No.
1:05–CV–0779, 2007 WL 680741, at *1, n. 2 (N.D.N.Y. Feb.
28, 2007) (citing Tindall v. Poultney High Sch. Dist., 414 F.3d
281 (2d Cir.2005)). Moreover, the complaint does not identify
the children by name and is signed only by Plaintiff. 3 Dkt.
No. 1. Therefore, Plaintiff may not represent her children.
Accordingly, the Clerk should be directed to remove the party
text “and children” from Plaintiff's name on the docket.
2 Page numbers refer to those assigned by the Court's
electronic filing system.
3 In addition, it appears that Plaintiff is unaware of
the location and well-being of her children. Dkt.
No. 2, at p.
B. Additional Defendants
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A review of the complaint and the docket reveals that six
entities that were named as defendants in the complaint are not
included as defendants on the docket. See Dkt. No. 1, at p. 1
(caption). Accordingly, the Clerk should be directed to add the
following as defendants: Sheriff of Oneida County; “N.Y.S.
Atty Gen.;” “N.Y.S. Court System;” U.S. Court System;
“N.Y.S. Health Dept.;” and “N.Y.S. Gov. Office.” See id.
C. 28 U.S.C. § 1915(e)(2)(B)
Section 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) 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). Thus, the court has a responsibility to
determine whether a complaint may be properly maintained
in this district before it may permit a plaintiff to proceed with
an action in forma pauperis. See id. The court also has the
duty to show liberality towards pro se litigants, Nance v. Kelly,
912 F.2d 605, 606 (2d Cir.1990) (per curiam), and extreme
caution should be exercised in ordering sua sponte dismissal
of a pro se complaint before the adverse party has been served
and the parties have had an opportunity to respond. Anderson
v. Coughlin, 700 F.2d 37, 41 (2d Cir.1983).
Generally, Plaintiff alleges that she was wrongfully arrested
and detained, and that her property and life were
endangered. 4 Dkt. No. 1 at pp. 2, 9. Plaintiff was detained
at Oneida County Correctional Facility and later at Oneida
County Psychiatric Center. Id. at pp. 11–12. Plaintiff named
over fifty defendants, which will discussed in more detail as
follows. Plaintiff seeks monetary and injunctive relief.
4 The Court notes that the allegations in the
complaint are rambling and disjointed in
contravention of Fed.R.Civ.P. 8(a) (2), which
requires that the complaint contain a short and plain
statement of the claim.
1. Defendants Campbell, Golden, and Djeck
Plaintiff alleges that her neighbors, Defendants Doug
Campbell, Desiree Golden, and Heather Djeck, violated
her civil rights by, inter alia, providing false information
to the New York State Police, physically assaulting her,
trespassing on her property, committing vandalism and arson,
and impeding her ability to file complaints. Dkt. No. 1 at
pp. 9–10, 25–26. Plaintiff also summarily claims that these
defendants “molested” her. Id. at p. 28.
*4 First, a plaintiff cannot hold a defendant liable under §
1983 unless he or she can establish that the defendant acted
under color of state law. See 42 U.S.C. § 1983; see also
Rounseville v. Zahl, 13 F.3d 625, 628 (2d Cir.1994) (noting
state action requirement under § 1983). It is the plaintiff's duty
to allege that the defendant acted under color of state law, and
if a plaintiff fails to plead that element of his claim, a court
may dismiss an action under 28 U.S.C. § 1915(e). See, e.g.,
Carollo–Gardner v. Diners Club, 628 F.Supp. 1253, 1256
(E.D.N.Y.1986) (dismissing as frivolous pro se complaint in
which the plaintiff failed to allege state action by defendants)
(citations omitted).
Here, Plaintiff has not alleged any state action by
Doug Campbell, Desiree Golden, and Heather Djeck.
The complaint indicates that these defendants are private
individuals, who are Plaintiff's neighbors. Therefore, the
complaint fails to state a claim upon which relief may be
granted against these defendants.
Second, regarding the conclusory allegation that she was
“molested” by these defendants, “[t]he Second Circuit has
held that ‘complaints relying on the civil rights statutes are
insufficient unless they contain some specific allegations of
fact indicating a deprivation of rights, instead of a litany
of general conclusions that shock but have no meaning.’
” Jemzura v. Public Serv. Com'n, 961 F.Supp. 406, 413
(N.D.N.Y.1997) (quoting Barr v. Abrams, 810 F.2d 358, 363
(2d Cir.1987)).
Here, Plaintiff has provided a one-sentence conclusory
allegation that she was “molested.” Plaintiff provides
absolutely no specific allegations of fact to support this
allegation. Therefore, Plaintiff has failed to state a claim upon
which relief may be granted. Accordingly, I recommend that
Defendants Campbell, Golden, and Djeck be dismissed as
defendants.
2. Defendant McCormick
Plaintiff claims that she provided a “Notice of Claim” to
Defendant Michael McCormick, an attorney for Mental
Hygiene Legal Services (“M.H.L.S.”). Dkt. No. 1 at p. 15.
An attorney employed by M.H.L.S. is not a state actor for
purposes of § 1983. Pecou v. Hirschfeld, Case No. 07–
cv–5449, 2008 WL 957919, at *2 (E.D.N.Y. Apr.3, 2008)
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(dismissing all claims against M.H.L.S. attorneys) (citing
Fisk v. Letterman, 401 F.Supp.2d 362, 378 (S.D.N.Y.2005)
(holding that a court-appointed attorney is not a state actor,
even if employed by the M.H.L.S., a state-funded legal
services agency under the direction of the New York State
Office of Court Administration)).
Here, the complaint indicates that Defendant McCormick
is an attorney for M.H.L.S. Therefore, he is not a state
actor for purposes of § 1983. Accordingly, I recommend that
Defendant McCormick be dismissed because the complaint
fails to state a claim upon which relief may be granted against
this defendant.
3. Defendant Kehoe
Plaintiff claims that she was represented by Defendant Kehoe,
a public defender, during a court proceeding on October 7,
2008. Dkt. No. 1 at pp. 14–15. Plaintiff summarily claims that
this attorney lied during the proceeding. Id. at p. 23.
*5 As noted, section 1983 creates a cause of action only
against persons acting under color of state law. See, e.g.,
Rodriguez v. Phillips, 66 F.3d 470, 473 (2d Cir.1995). A
“public defender does not act under color of state law
when performing a lawyer's traditional functions as counsel
to a defendant in a criminal proceeding.” Polk County v.
Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 70 L.Ed.2d 509
(1981); accord Rodriguez v. Weprin, 116 F.3d 62, 65–66 (2d
Cir.1997).
Here, Plaintiff's conclusory allegation is insufficient to
establish that this defendant was acting under color of state
law. Accordingly, I recommend that Defendant Kehoe be
dismissed because the complaint fails to state a claim upon
which relief may be granted against this defendant.
4. Defendant Hester
Plaintiff claims that Judge Hester of the Oneida County
Supreme Court ordered that Plaintiff be returned to the
psychiatric facility. Dkt. No. 1 at p. 16.
Judges are entitled to absolute immunity for actions relating
to the exercise of their judicial functions. Mireless v. Waco,
502 U.S. 9, 9–10, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991).
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.’ ”
Huminski v. Corsones, 396 F.3d 53, 74 (2d Cir.2004) (quoting
Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 18
L.Ed.2d 288 (1967)). Judicial immunity applies even when
the judge is accused of acting maliciously or corruptly. Imbler
v. Pachtman, 424 U.S. 409, 419 n. 12, 96 S.Ct. 984, 47
L.Ed.2d 128 (1976) (citing Pierson, 386 U.S. at 554). Judicial
immunity is immunity from suit, not just immunity from
the assessment of damages. Mitchell v. Forsyth, 472 U.S.
511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). However,
there are two circumstances in which judicial immunity
does not apply: 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.” Mireles, 502 U.S. at 11–12.
Here, Plaintiff claims that Judge Hester ordered that Plaintiff
be returned to the psychiatric facility. Plaintiff is clearly
referring to a judicial act. However, Plaintiff does not
claim that Judge Hester somehow acted “outside” of
his judicial capacity, or that Judge Hester acted in the
absence of jurisdiction. Therefore, judicial immunity should
apply. Accordingly, Judge Hester should be dismissed as a
defendant.
5. Defendant Ritter
Plaintiff alleges that Judge Mark Ritter, Town Judge of
Forestport, New York, failed to render a decision regarding
her claim that her neighbors vandalized her property even
though Judge Ritter stated that he mailed a decision to
her. Dkt. No. 1 at p. 12. Plaintiff also summarily claims
that Judge Ritter violated her civil rights and that Judge
Ritter “molested” her. Id. at pp. 24, 28. Plaintiff seeks
the “dismis[sal]” of Judge Ritter and an award from his
malpractice insurance carrier. Id. at p. 29.
*6 First, Plaintiff's allegation regarding the rendering of a
decision clearly refers to a judicial act. However, Plaintiff
does not claim that Judge Ritter somehow acted “outside” of
his judicial capacity, or that Judge Ritter acted in the absence
of jurisdiction. Therefore, judicial immunity should apply.
Second, Plaintiff's allegations that Judge Ritter violated her
civil rights and that he “molested” her are conclusory and
insufficient to state a claim. Accordingly, Judge Ritter should
be dismissed as a defendant.
6. Defendant Tormey
Plaintiff alleges that Judge James Tormey, a Supreme Court
Justice, “refused” numerous “Notices of Complaints” that
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Plaintiff sent to him. Dkt. No. 1, at p. 3. She also summarily
alleges that Judge Tormey violated her civil rights and that
Judge Tormey “molested” her. Id. at pp. 24, 28.
First, Plaintiff's allegation regarding Judge Tormey's handling
of her complaints refers to a judicial act. However, Plaintiff
does not claim that Judge Tormey somehow acted “outside”
of his judicial capacity, or that Judge Tormey acted in the
absence of jurisdiction. Therefore, judicial immunity should
apply.
Second, Plaintiff's allegations that Judge Tormey violated her
civil rights and “molested” her are conclusory and insufficient
to state a claim. Accordingly, Judge Tormey should be
dismissed as a defendant.
7. Defendant Escziac
Plaintiff alleges that she “never saw charges” from Judge
Escziac, Town Judge of Booneville, New York. Dkt. No. 1,
at p. 20. She also appears to claim that she never received “a
hearing” and was never sentenced by Judge Escziac. Id. She
further summarily alleges that Judge Escziac violated her civil
rights, and that Judge Escziac “molested” her. Id. at pp. 24,
28. Plaintiff seeks the “dismis[sal]” of Judge Escziac and an
award from his malpractice insurance carrier. Id. at p. 29.
First, Plaintiff's allegations regarding Judge Escziac's
handling of a criminal matter refer to judicial acts. However,
Plaintiff does not claim that Judge Escziac somehow acted
“outside” of his judicial capacity, or that Judge Escziac acted
in the absence of jurisdiction. Therefore, judicial immunity
should apply.
Second, Plaintiff's allegations that Judge Escziac violated her
civil rights and molested her are conclusory and insufficient to
state a claim. Accordingly, Judge Escziac should be dismissed
as a defendant.
8. Defendant Garramone
Plaintiff alleges that she “refiled” numerous “Notice of
Complaints” with Defendant Grant Garramone, an Assistant
District Attorney in Oneida County. Dkt. No. 1 at p. 3.
Plaintiff appears to allege that this defendant failed to take
action. Id. at p. 11. Plaintiff also summarily asserts that this
defendant “molested” her. Id. at p. 28.
First, “ ‘[p]rosecutors are absolutely immune from liability
under § 1983 for their conduct in initiating a prosecution
and in presenting the State's case.’ ” Lindsey v. DeAngelis,
No. 1:07–CV–0753, 2007 WL 2261587, at *2 (N.D.N.Y.
Aug. 2, 2007) (quoting Pinaud v. County of Suffolk, 52 F.3d
1139, 1147 (2d Cir.1995) (internal quotations and citations
omitted); Dory v. Ryan, 25 F.3d 81, 83 (2d Cir.1994)
(prosecutorial immunity covers virtually all acts, regardless
of motivation, associated with the prosecutor's function,
including conspiracies to present false evidence)). “This
immunity applies to individual district attorneys for claims
arising out of acts ‘within the scope of their duties in initiating
and pursuing criminal prosecution.’ ” Lindsey, 2007 WL
2261587, at *2 (citing Pinaud, 52 F.3d at 1147 (internal
quotations and citations omitted)).
*7 The allegations in the complaint relate to Defendant
Garramone's handling of Plaintiff's complaints. Accordingly,
he should be held absolutely immune. Therefore, the
complaint fails to state a claim upon which relief may be
granted against this defendant.
Second, Plaintiff's allegation that Defendant Garramone
“molested” her is conclusory and insufficient to state a claim.
Accordingly, Grant Garramone should be dismissed as a
defendant.
9. Defendants New York State Attorney General and
Assistant Attorney General Trace 5
5 Plaintiff named the latter defendant as “N.Y.S. Atty
Gen. RE [:] Asst. Atty Gen. Trace.” Dkt. No. 1, at
p. 8.
Plaintiff claims that she sent notices of claims to the New
York State Attorney General's Office in “as early as May
[of] 2008.” Dkt. No. 1 at p. 16. She also asserts that in late
February of 2009, a hearing was held at which Defendant
Trace, an Assistant Attorney General, “entered” a brief that
he knew was based on hearsay. Id. at p. 15.
A prosecutor may not be held liable under § 1983 in his or
her individual capacity for acts in performance of official
duties. Imbler v. Paachtman, 424 U.S. 409, 430–31, 96 S.Ct.
984, 47 L.Ed.2d 128 (1976). The doctrine of Imbler has been
extended to government attorneys handling administrative
proceedings, Butz v. Econoou, 438 U.S. 478, 512–17, 98 S.Ct.
2894, 57 L.Ed.2d 895 (1978), and to their initiation of civil
litigation in federal and state courts, Barrett v. United States,
798 F.2d 565, 572 (2d Cir.1986); see also Barr v. Abrams,
810 F.2d 358, 361 (2d Cir.1987) (holding assistant attorney
generals immune from suit based on their actions in filing a
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criminal information and procuring arrest warrant); see also
Cohen v. Bane, 853 F.Supp. 620, 627 (E.D.N.Y.1994) (noting
that “absolute immunity has been extended to government
attorneys handling administrative proceedings and to the
initiation of civil litigation”).
Accordingly, the New York State Attorney General should
be held absolutely immune with regard to the handling of
Plaintiff's notices; and Assistant Attorney General Trace
should be held immune with regard to the alleged brief.
Accordingly, I recommend that Defendants New York State
Attorney General and Assistant Attorney General Trace be
dismissed.
10. Defendant U.S. Commission of Civil Rights
Plaintiff named the U.S. Commission of Civil Rights as a
defendant. She claims that she sent a “Notice of Claim” to the
U.S. Commission of Civil Rights. Dkt. No. 1, at p. 15.
Plaintiff is advised that because an action against a federal
agency or federal officers in their official capacities is
essentially a suit against the United States, such suits are
barred under the doctrine of sovereign immunity, unless such
immunity is waived. Federal Deposit Ins. Corp. v. Meyer, 510
U.S. 471, 484–86, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994);
Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510
(2d Cir.1994) (“Because an action against a federal agency
or federal officers in their official capacities is essentially a
suit against the United States, such suits are also barred under
the doctrine of sovereign immunity, unless such immunity is
waived.”) (citations omitted).
*8 Plaintiff has not established that sovereign immunity has
been waived for this defendant. Accordingly, I recommend
that the U.S. Commission of Civil Rights be dismissed as a
defendant.
11. Defendant U.S. Court System
Plaintiff named the “U.S. Court System” as a defendant.
Dkt. No. 1, at p. 1. However, Plaintiff has not established
that sovereign immunity has been waived for this defendant.
Accordingly, I recommend that the U.S. Court System be
dismissed as a defendant.
12. Defendant New York State Police
Plaintiff named the New York State Police as a defendant.
Dkt. No. 1, at p. 1. However, the New York State Police
is a division of the State of New York, which is entitled to
Eleventh Amendment immunity from suits brought pursuant
to 42 U.S.C. § 1983. Pollock v. Daniels, No. 3:07–CV–
0637, 2007 WL 4232700, at *1 (N.D.N.Y. Nov.28, 2007)
(citing, inter alia, Dunn v. Carrier, 137 Fed. Appx. 387 (2d
Cir.2005)). Accordingly, I recommend that the New York
State Police be dismissed as a defendant.
13. Defendant New York State Court System
Plaintiff named the “N.Y. S. Court System” as a defendant.
Dkt. No. 2. It appears that Plaintiff is referring to the
New York State Unified Court System. However, the New
York State Unified Court System “is unquestionably an
‘arm of the State’ and is entitled to Eleventh Amendment
sovereign immunity.” Gollomp v. Spitzer, 568 F.3d 355, 368
(2d Cir.2009) (citation omitted). Accordingly, I recommend
that the “N.Y.S. Court System” be dismissed as a defendant.
14. Defendant New York State Health Department
Plaintiff named the “N.Y.S. Health Dept.” as a defendant.
Dkt. No. 1, at p. 1. However, any claim against the New
York Department of Health is barred by the State's sovereign
immunity. Six Nations of Iroquois (Confederacy) of North
America v. Niagara Mohawk Power Corp., No. 98–CV0112,
1999 WL 528822, at *3 (W.D.N.Y. July 22, 1999) (citing
Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d
662 (1974); Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139,
59 L.Ed.2d 358 (1979)). Accordingly, I recommend that the
“N.Y.S. Health Dept.” be dismissed as a defendant.
15. Defendants McNamara, Miga, Smith, Schmelzle,
and the Town of Forestport Court Clerk
Plaintiff alleges in one sentence that she was “molested” by
the following defendants: Scott McNamara (District Attorney
of Oneida County); Brian Miga (Supervisor of Forestport
Town Hall); Mr. Smith (Codes Officer of Forestport Town
Hall); Kathy Schmelzle (Clerk of Forestport Town Hall in
2007); and the Town of Forestport Court Clerk. Dkt. No. 1
at p. 28.
Plaintiff's conclusory allegation is completely unsupported
by specific allegations of fact and is insufficient to state a
claim. Accordingly, Defendants McNamara, Miga, Smith,
Schmelzle, and the Town of Forestport Court Clerk should be
dismissed as defendants.
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16. Defendants Paschke; Oneida County Psychiatric
Dietary; Mendolez; Totaro; Mills; Dr. Smith;
Giacona; Stevens; “Bernabi and (Katz) Wachtel,
PLLC;” Daffan; Branch; Smith, Sovik, Kendrick and
Sugnet; Ciaccio; Olinsky and Shurtliff; Silberstein,
Awad and Miklos; Carroll and Carroll; Kenny and
Kenny; Green and Foushee; Bach; Nesbuth; Oneida
County Health Department; and Gilmore
*9 The complaint fails to allege any act or omission by
Defendants Paschke (Receiver of Taxes); Oneida County
Psychiatric Dietary; Dr. Mendolez; Nurse Practitioner Cathy
Totaro; Mills, R.N.; Dr. Smith; Samuel Giacona (Previously
Retained Attorney); William Stevens (Previously Retained
Attorney); “Bernabi and (Katz) Wachtel, PLLC;” Katti
Daffan; Patricia Branch (Officer Manager); Smith, Sovik,
Kendrick and Sugnet, Attorneys; Christopher S. Ciaccio,
Attorney; Olinsky and Shurtliff, Attorneys; Silberstein, Awad
and Miklos, Attorneys; Carroll and Carroll, Attorneys;
Kenny and Kenny, Attorneys; Green and Foushee, Attorneys;
Richard N. Bach; Nesbuth (Public Defender); Oneida
County Health Department; and Daniel W. Gilmore (Director
of Environmental Health), or any involvement by these
Defendants in the violation of Plaintiff's rights. Where a
defendant is listed in the caption but the body of the complaint
fails to indicate what the defendant did to the plaintiff,
dismissal is appropriate. Gonzalez v. City of N. Y., No. 97
CIV. 2246, 1998 WL 382055, at *2 (S.D.N.Y. July 9, 1998)
(citing Crown v. Wagenstein, No. 96 CIV. 3895, 1998 WL
118169, at *1 (S.D.N.Y. Mar.16, 1998) (mere inclusion of
warden's name in complaint insufficient to allege personal
involvement); Taylor v. City of New York, 953 F.Supp. 95, 99
(S.D.N.Y.1997) (same)).
Plaintiff has failed to allege any personal involvement on the
part of these defendants. Therefore, they should be dismissed
from this action.
17. Defendant Sheriff of Oneida County
First, Plaintiff vaguely claims that the Oneida County Sheriff
never showed her charges that were brought against her, and
never showed her arrest or search warrants. Dkt. No. 1 at
p. 20. It is unclear what Plaintiff is alleging. Accordingly,
Plaintiff's complaint, as drafted, fails to state a claim upon
which relief may be granted against this defendant. If Plaintiff
wishes to avoid dismissal of this defendant, she must set forth
a sufficient claim in her amended complaint.
Second, Plaintiff summarily asserts that the Sheriff
“molested” her. Dkt. No. 1 at p. 28. Plaintiff's conclusory
allegation is completely unsupported by specific allegations
of fact and is insufficient to state a claim. Accordingly, to the
extent that Plaintiff alleges that the Sheriff molested her, this
claim should be dismissed.
18. Defendant Oneida County Sheriff's Department
Plaintiff named the Oneida County Sheriff's Department as
a defendant. Dkt. No. 1. To the extent that Plaintiff named
this entity as a defendant because she asserts allegations
involving the Oneida County Sheriff, “[a] municipality or
municipal entity cannot be held liable under Section 1983 on
a respondeat superior theory.” Bliven v. Hunt, 478 F.Supp.2d
332, 336 (E.D.N.Y.2007) (citing Monell v. Department of
Soc. Servs. of City of New York, 436 U.S. 658, 691, 98
S.Ct. 2018, 56 L.Ed.2d 611 (1978)). “Rather, to establish
municipal liability under § 1983 for unconstitutional acts
by a municipality's employees, a plaintiff must show that
the violation of [his or] her constitutional rights resulted
from a municipal custom or policy.” 6 “Thus, to hold a
[municipality] liable under § 1983 for the unconstitutional
actions of its employees, a plaintiff is required to ... 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.” 7
6 Powell, 2005 WL 3244193, at *5; Monell, 436 U.S.
at 690–691 (“[L]ocal governments ... may be sued
for constitutional deprivations visited pursuant
to governmental ‘custom’ even though such a
custom has not received formal approval through
the body's official decisionmaking channels.”);
Batista, 702 F.2d at 397 (“[M]unicipalities may
be sued directly under § 1983 for constitutional
deprivations inflicted upon private individuals
pursuant to a governmental custom, policy,
ordinance, regulation, or decision.”); Smith v.
City of New York, 290 F.Supp.2d 317, 321
(S.D.N.Y.2003) (“In order to establish the liability
of [municipal] defendants in an action under §
1983 for unconstitutional acts by [its] employees,
a plaintiff must show that the violation of [his or]
her constitutional rights resulted from a municipal
custom or policy.”).
7 Batista, 702 F.2d at 397, accord, Zahra v. Town of
Southold, 48 F.3d 674, 685 (2d Cir.1995), McKeon
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v. Daley, 101 F.Supp.2d 79, 92 (N.D.N.Y.2000)
(Hurd, J.), Merriman v. Town of Colonie, NY, 934
F.Supp. 501, 508 (N.D.N.Y.1996) (Homer, M.J.);
Douglas v. County of Tompkins, 90–CV–0841,
1995 WL 105993, at *12 (N.D.N.Y. March 2,
1995) (McCurn, J.), Keyes v. County of Albany, 594
F.Supp. 1147, 1156 (N.D.N.Y.1984) (Miner, J.).
*10 Plaintiff fails to set forth allegations of municipal
custom or policy sufficient to state a claim. Accordingly, if
Plaintiff wishes to avoid dismissal of this defendant, she must
set forth a sufficient claim in her amended complaint.
19. Defendants Krishnappa, Mallick, and Thesee
Plaintiff appears to complain of the treatment provided by
Drs. Krishnappa, Mallick, and Thesee while she was at
Oneida County Psychiatric Center. Dkt. No. 1 at pp. 18–
19. Plaintiff seeks awards from their malpractice insurance
carriers. Id. at p. 29.
Claims of malpractice or disagreement with treatment are
not actionable under section 1983. Murphy v. Grabo, No.
94–CV–1684, 1998 WL 166840, at *4 (N.D.N.Y. Apr.
9, 1998) (internal citation omitted). Rather, to establish
an Eighth Amendment claim arising out of inadequate
medical care, a plaintiff must prove “deliberate indifference
to [her] serious medical needs.” Estelle v. Gamble, 429
U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The
standard of deliberate indifference includes both subjective
and objective components. “First, the alleged deprivation
must be, in objective terms, ‘sufficiently serious.’ ” Hathaway
v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994) (quotation and other
citation omitted). Second, the defendant “must act with a
sufficiently culpable state of mind.” Id. (citation omitted). An
official acts with the requisite deliberate indifference when
that official “ ‘knows of and disregards an excessive risk
to inmate health or safety; the official must both be aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
the inference.’ ” Id. (quotation omitted).
Here, Plaintiff's allegations are vague, confusing, and
disjointed. She asserts, inter alia, that no doctor at the
Psychiatric Center “took their own [blood pressure];” Dr.
Krishnappa prescribed several medications, but she was never
prescribed Cogentin while at the center, but “doubt[s] it
would had done any good;” and “Dr. Mallick had been an
acting psychiatrist yet Dr. Thesee encouraged injections but
he claimed [Plaintiff] had a left sided mastectomy.” Dkt.
No. 1 at p. 19. She then states, “They are all ridiculous and
criminal.” Id. It is unclear what Plaintiff is alleging regarding
Defendants Krishnappa, Mallick, and Thesee. Accordingly,
Plaintiff's complaint, as drafted, fails to state a claim upon
which relief may be granted against these defendants. If
Plaintiff wishes to avoid dismissal of these defendants, she
must set forth a sufficient claim in her amended complaint.
20. Defendant New York State Governor's Office
Plaintiff named the New York State Governor's Office as a
defendant. Dkt. No. 1, at p. 1. Plaintiff alleges that she sent
notices of claims to this defendant. Id. at p. 16. Plaintiff also
summarily claims that this defendant breached her civil rights.
Id. at p. 24. Regarding the former allegation, it is unclear
what Plaintiff is alleging, since she failed to include relevant
information such as descriptions of the notices and when she
sent the notices. Regarding the latter allegation, this allegation
is conclusory and insufficient to state a claim. Therefore,
the complaint, as drafted, fails to state a claim upon which
relief may be granted against this defendant. Accordingly, if
Plaintiff wishes to avoid dismissal of this defendant, she must
set forth a sufficient claim in her amended complaint.
21. Defendants Lemon, York St. Clinic, and
Neighborhood Center
*11 Plaintiff alleges she reported to Defendant Lemon, a
social worker, and to Defendant York St. Clinic that she had
no electricity, food, or functioning vehicle. Dkt. No. 1 at p.
17. Plaintiff also states that she was “harassed” by Defendant
York St. Clinic and Defendant Neighborhood Center. Id. at
pp. 16–17. It appears that Plaintiff is seeking the termination
of Defendant Lemon, and an award from her malpractice
insurance carrier. Id. at pp. 29–30.
The complaint fails to clearly indicate how or when
these defendants violated Plaintiff's rights. Accordingly, the
complaint fails to state a claim on which relief may be granted
against these defendants. If Plaintiff wishes to avoid dismissal
of these defendants, she must set forth a sufficient claim in
her amended complaint.
D. Amended Complaint
In light of the special solicitude afforded to pro se litigants
in the Second Circuit, I recommend that Plaintiff may file an
amended complaint within thirty (30) days of the filing date
of any Order adopting this Report and Recommendation
should she wish to avoid dismissal of the action. Any
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amended complaint, which shall supersede and replace in its
entirety Plaintiff's original complaint (Docket No. 1), must
contain a short and plain statement of the claim showing
that she is entitled to relief with all averments of claim set
forth in numbered paragraphs. See Fed.R.Civ.P. 8(a)(2) &
Fed.R.Civ.P. 10(b). The amended complaint must also allege
claims of misconduct or wrongdoing against defendants
which Plaintiff has a legal right to pursue, and over which this
Court may properly exercise jurisdiction. Plaintiff is advised
that all claims must be set forth in the amended complaint.
Claims may not be set forth solely in exhibits.
II. Application to proceed in forma pauperis
Plaintiff submitted an application to proceed in forma
pauperis. Dkt. No. 2. A review of the application indicates
that Plaintiff may proceed in forma pauperis.
WHEREFORE, it is hereby
RECOMMENDED, that the Clerk remove the party text
“and children” from Plaintiff Maureen E. Scott's name on the
docket; and it is further
RECOMMENDED, that the Clerk add the following entities
as defendants to the docket: Sheriff of Oneida County;
“N.Y.S. Atty Gen.;” “N.Y.S. Court System;” U.S. Court
System; “N.Y.S. Health Dept.;” and “N.Y.S. Gov. Office;”
and it is further
RECOMMENDED, that the following defendants be
dismissed: Doug Campbell; Desiree Golden; Heather
Djeck; Kehoe; Michael McCormick; Judge Hester; Judge
Mark Ritter; Judge James Tormey; Judge Escziac; Grant
Garramone; “N.Y.S. Atty Gen.;” “N.Y.S. Atty Gen. RE[:]
Asst. Atty Gen. Trace;” U.S. Commission of Civil Rights;
U.S. Court System; New York State Police; “N.Y.S. Court
System;” “N.Y.S. Health Dept.;” Scott McNamara; Brian
Miga; Mr. Smith; Kathy Schmelzle; Town of Forestport
Court Clerk; Paschke; Oneida County Psychiatric Dietary;
Dr. Mendolez; Cathy Totaro; Mills, R.N.; Dr. Smith;
Samuel Giacona; William Stevens; “Bernabi and (Katz)
Wachtel, PLLC;” Katti Daffan; Patricia Branch; Smith, Sovik,
Kendrick and Sugnet; Christopher S. Ciaccio; Olinsky and
Shurtliff; Silberstein, Awad and Miklos; Carroll and Carroll;
Kenny and Kenny; Green and Foushee; Richard N. Bach;
Nesbuth; Oneida County Health Department; and Daniel W.
Gilmore; and it is further
*12 RECOMMENDED, that to the extent that Plaintiff
summarily alleges that the Sheriff of Oneida County molested
her, this claim be dismissed; and it is further
RECOMMENDED, that Plaintiff may file an amended
complaint within thirty (30) days of the filing date of any
Order adopting this Report and Recommendation; and it is
further
RECOMMENDED, that if Plaintiff fails to timely file
an amended complaint, the Clerk shall enter judgment
dismissing this case without prejudice without further Order
of the Court due to Plaintiff's failure to comply with the terms
of any Order adopting this Report and Recommendation; and
it is further
RECOMMENDED, that upon the filing of an amended
complaint, the file be returned to the Court for further review;
and it is further
ORDERED, that the in forma pauperis application (Dkt. No.
2) is GRANTED; and it is further
ORDERED, that the Clerk serve copies of this Report–
Recommendation and Order on Plaintiff by regular mail.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten 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 TEN
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)); 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
All Citations
Not Reported in F.Supp.2d, 2010 WL 145297
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Scott v. Djeck
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 5:09cv01122
SCOTT v. DJECK ET AL
— N.D.N.Y. Oct. 06, 2009 Docket
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Scott v. Djeck
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History
There are no History results for this citation.
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Stevenson v. Schiano, Slip Copy (2025)
2025 WL 1895830
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Blue-Striped Flag
Appeal Filed by Stevenson v. Schiano Jr., 2nd Cir., July 8, 2025
2025 WL 1895830
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Nathan Randell STEVENSON, Plaintiff,
v.
Charles A. SCHIANO, Jr., Acting Supreme Court
Judge, Jennifer Kennedy, Officer of the Court/Assistant
District Attorney, Joseph Damelio, Officer of the
Court/Attorney, John Laclair, Rochester Police Officer,
Cody Mandale, Rochester Police Officer, Sino Seng,
Rochester Police Officer, J. Wallace, Monroe County
Jail Deputy, Donald Scott Young, Officer of the Court/
Attorney, Joony Odenbach, Court Stenographer, Leticia
Astacio, Officer of the Court/Attorney, Todd Baxter,
Monroe County Sheriff, Sandra Doorley, Monroe
County District Attorney, James Riatto, Officer of the
Court/Attorney, William Swiff, Officer of the Court/
Assistant Attorney, Rochester Police Department,
Monroe County District Attorney Office, Monroe
County Jail, Avangelista, Monroe County Jail/Deputy,
Merolla, Monroe County Jail/Deputy, Hahn, Monroe
County Jail/Corporal, Gertin, Monroe County Jail/
Sergeant, Department of Corrections, Elmira Correctional
Facility, and State of New York, Defendants.
23-CV-205 (JLS)
|
Signed March 19, 2025
Attorneys and Law Firms
Nathan Randell Stevenson, Stormville, NY, Pro Se.
DECISION AND ORDER
JOHN L. SINATRA, JR., UNITED STATES DISTRICT
JUDGE
*1 Pro se Plaintiff, Nathan Randall Stevenson (“Stevenson”
or “Plaintiff”), is a prisoner currently confined at the Green
Haven Correctional Facility. He filed a Complaint asserting
violations of his rights under the Fourth, Fifth, Sixth,
Seventh, Ninth, and Tenth Amendments to the United States
Constitution in relation to his arrest, detention, prosecution,
and conviction in Monroe County, New York. He also asserts
claims under 42 U.S.C. §§ 1985 and 1986, and 18 U.S.C.
§§ 241, 242, and 2382. Dkt. 1. 1 Plaintiff has paid the filing
and administrative fees. Plaintiff had moved for service of
the summons and Complaint by the United States Marshals
Service (“USMS”), Dkt. 12, but has moved to withdraw that
motion asserting that he would locate a process server to serve
the summons and Complaint, Dkt. 13. 2 Plaintiff's motion to
withdraw, Dkt. 13, is granted, and the motion for service by
the United States Marshals Service, Dkt. 12, is withdrawn.
Because of this, Plaintiff's other motion for service by the
United States Marshals Service, Dkt. 6, is also withdrawn.
1 As addressed further below, while Stevenson states
that he did not file this Complaint under 42 U.S.C.
§ 1983, and has moved to correct the “title” of
this action as reflected on the docket report, Dkt.
12, which he claims incorrectly reflects that this
action is brought under 42 U.S.C. § 1983, the
Court construes this Complaint as also asserting
claims under section 1983 because to bring suit for
a violation of his constitutional rights, it must be
brought under section 1983, see Sykes v. James, 13
F.3d 515, 519 (2d Cir. 1993). Section 1983 is “the
enabling civil rights statute for a cause of action
alleging a deprivation of constitutional rights.”
Weaver v. State of New York, No. CIV.-89-83E,
1989 WL 98776, at *1 (W.D.N.Y. Aug. 23, 1989);
see also Marisol A. By Forbes v. Giuliani, 929 F.
Supp. 662, 673 (S.D.N.Y. 1996), aff'd, 126 F.3d
372 (2d Cir. 1997) (“[section] 1983 is ... a vehicle
through which a private plaintiff may pursue a
claim for an alleged constitutional violation by a
person acting under color of state law.”) (citing
Golden State Transit Corp. V. City of L.A., 493 U.S.
103, 105 (1989); Maine v. Thiboutot, 448 U.S. 1, 4
(1980)).
2 Plaintiff's motion to withdraw his motion for
service by the USMS states that he spoke with
someone from the Clerk of Court's Office who
advised him that he was not entitled to service
by the USMS. Dkt. 13. The Court obviously was
not privy to that conversation but notes that a pro
se litigant who pays the filing fee may request
and obtain service by the USMS. Fed. R. Civ.
4(c)(3) (“At the plaintiff's request, the court may
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order that service be made by a United States
Marshal or deputy or by a person specifically
appointed by the court.”). “The granting of such an
order is discretionary with the Court.” Johnson v.
DHS/ICE, 13-CV-0288A(Sr), 2013 WL 6669232,
at *3 (W.D.N.Y. Dec. 18, 2013); see Elleby v.
Martucello, No. 9:16-CV-1335 (MAD/DEP), 2017
WL 11319492, at *3 (N.D.N.Y. Apr. 5, 2017) (“In
light of the fact that plaintiff is incarcerated and
proceeding pro se, and in order to advance the
disposition of this action, plaintiff may request ...
service by the U.S. Marshal, provided that plaintiff
pays the service fee to the U.S. Marshal in full
in advance ....”); Abreu v. Travers, No. 9:15-
CV-0540(MAD)(ATB), 2016 WL 6127510, at *18
(N.D.N.Y. Oct. 20, 2016) (same).
If Plaintiff files an amended complaint as directed
herein and if some of the claims asserted in the
amended complaint survive screening under 28
U.S.C. § 1915A, he may refile this motion, if he
wishes. Otherwise, Plaintiff will be responsible
for serving the summons and amended complaint,
see Fed. R. Civ. P. 4(c)–(m), if any of the
claims asserted in an amended complaint survive
screening and the Court directs the Clerk of Court
to issue summonses for service.
*2 For the reasons that follow: (1) Stevenson's motion to
correct the title of his action is denied; (2) his motion to
withdraw his motion for service by the Marshals Service is
granted; (3) his motions for service are withdrawn; (4) the
First, Twenty-First, and Thirty-Second Claims are dismissed
under section 1915A, with leave to amend; and (5) Plaintiff's
remaining claims are dismissed under 28 U.S.C. § 1915A,
without leave to amend.
DISCUSSION
Because Stevenson is a prisoner, 28 U.S.C. § 1915(h), and
has paid the filing fee, this Court must screen his Complaint
under section 1915A(b).
Section 1915 “provide[s] an efficient means by which a court
can screen for and dismiss legally insufficient claims.” Abbas
v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (citing Shakur v.
Selsky, 391 F.3d 106, 112 (2d Cir. 2004)). The court shall
dismiss a complaint in a civil action in which a prisoner seeks
redress from a governmental entity, or an officer or employee
of a governmental entity, if the court determines that the
action: (1) fails to state a claim upon which relief may be
granted, or (2) seeks monetary relief against a defendant who
is immune from such relief. See 28 U.S.C. § 1915A(b)(1)–(2).
Generally, the court will afford a pro se plaintiff an
opportunity to amend or to be heard prior to dismissal “unless
the court can rule out any possibility, however unlikely it
might be, that an amended complaint would succeed in stating
a claim.” Abbas, 480 F.3d at 639 (internal quotation marks
omitted). But leave to amend may be denied when any
amendment would be futile. See Cuoco v. Moritsugu, 222 F.3d
99, 112 (2d Cir. 2000).
I. THE COMPLAINT
In evaluating a complaint, the court must accept all factual
allegations as true and must draw all inferences in the
plaintiff's favor. See Larkin v. Savage, 318 F.3d 138, 139
(2d Cir. 2003) (per curiam); King v. Simpson, 189 F.3d 284,
287 (2d Cir. 1999). “Specific facts are not necessary,” and
the plaintiff “need only ‘give the defendant fair notice of
what the ... claim is and the grounds upon which it rests.’
” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also
Boykin v. Keycorp, 521 F.3d 202, 216 (2d Cir. 2008) (“[E]ven
after Twombly, dismissal of a pro se claim as insufficiently
pleaded is appropriate only in the most unsustainable of
cases.”). Although “a court is obliged to construe [pro se]
pleadings liberally, particularly when they allege civil rights
violations,” McEachin v. McGuinnis, 357 F.3d 197, 200 (2d
Cir. 2004), even pleadings submitted pro se must meet the
notice requirements of Rule 8 of the Federal Rules of Civil
Procedure. Wynder v. McMahon, 360 F.3d 73, 79 n.11 (2d Cir.
2004).
Stevenson has sued over twenty (20) Defendants in what
best can be described as a rambling, repetitive, illogical, and
generally meritless Complaint. The Complaint raises thirty-
two (32) separate claims related to his arrest, prosecution,
pretrial detention, and post-conviction incarceration. Dkt. 1.
He sues the state court judge who presided over his state
court criminal matter (“Judge Schiano”); the Monroe County
District Attorney's Office (“DA's Office”), the District
Attorney (“DA Doorley”) and Assistant District Attorney
(“ADA Kennedy”) who prosecuted him; several assigned
and retained criminal defense attorneys who represented him
(“Damelio,” “Young,” “Astacio,” “Riatto,” and “Swiff”);
the court stenographer (“Odenbach”); the City of Rochester
Police Department (“RPD”) and the RPD Officers who
arrested him or filed criminal complaints and other documents
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against him (“Laclair,” “Mandale,” and “Seng”); the Sheriff
of Monroe County (“Sheriff Baxter”); the Monroe County
Jail (“MCJ”), where he was detained pending trial; a number
of Sheriff's Deputies at MCJ (“Wallace,” “Avangelista,”
“Merolla,” “Hahn,” and “Gertin”); the New York State
Department of Corrections of Community Supervision
(“DOCCS”); and the Elmira Correctional Facility (“Elmira”)
where he was incarcerated following his conviction; and the
State of New York (“New York”). Id. at 1–7. 3
3 Page references are to those generated by the
Court's Case Management and Electronic Files
System (CM/ECF).
*3 The primary basis of Stevenson's Complaint—as best this
Court can discern—is that at each appearance in state court
during his prosecution, Judge Schiano, ADA Kennedy, and
one of Stevenson's several attorneys illegally used his “name/
trust/estate” without his permission. Dkt. 1, at 12–19, 22–28,
39. He also alleges, inter alia, that the RPD Officers, Sheriff's
Deputies, and other Defendants who filed various criminal
complaints and other documents, also used his name/trust/
estate illegally, id. at 8–9, 31, 41, and that he has been illegally
detained at MCJ and Elmira since his arrest.
Liberally construed, the Complaint alleges the following. On
August 27, 2019, Stevenson was arrested by RPD Officers
Laclair, Mandale, and Seng. These officers, without probable
cause, surrounded him, prevented him from moving, and
“assault[ed]” him. Mandale searched his pockets and took his
cash. After being placed in the patrol car, Stevenson tried to
flee. He was chased and again assaulted by these officers and
others. Seng threatened to shoot him. He suffered “damage”
to his face, neck, shoulders, back, and wrists. Id. at 9–11 (First
Claim). After the arrest, Seng filed a false criminal complaint
and another document using Stevenson's name/trust/estate
without his authorization. Id. at 9 (Second Claim).
After his arrest and throughout his prosecution between
August 19, 2019 and December 16, 2022, Stevenson appeared
in court before Judge Schiano. Judge Schiano, along with
ADA Kennedy, DA Doorley, Damelio, Young, Astacio,
Riatto, Swiff, Odenbach, and other Defendants, including the
RPD Officers, New York, DA's Office, and MCJ, illegally
used Stevenson's name/trust/estate, “while depriving [him] of
life and liberty without [d]ue [p]rocess, during their process.”
Id. at 18 (Seventh Claim); see, e.g., id. at 9, 12–19, 22–28, 34–
35, and 39 (Second through Eighth, Tenth through Sixteenth,
Nineteenth, Twenty-Second through Twenty-Third, Twenty-
Seventh, and Twenty-Ninth Claims). DA Doorley used his
name/trust/estate on her Facebook page and made false and
negative remarks about his character. Id. at 31 (Nineteenth
Claim). Damelio sent several letters to Stevenson further
“conspiring” to commit “the illegal acts [, i.e., using his
name/trust/estate,] being taken against [him].” Id. at 16
(Fifth Claim). Riatto and Swiff were retained by Stevenson's
family and made numerous promises to assist Stevenson but
neglected to assist him “with the illegal conspiracy that was
taking place against [his] living soul and also [his] name/trust/
estate.” Id. at 36–37 (Twenty-Fourth through Twentieth-Fifth
Claims).
On September 19, 2019, DA Doorley signed off on an
indictment (No. 2019-0590) that illegally used Stevenson's
name/trust/estate. He further alleges that Judge Schiano,
Doorley, ADA Kennedy, DA's Office, and New York used the
indictment to deprive Stevenson of his “life and liberty during
the process.” Id. at 32 (Twentieth Claim).
On October 3, 2022, Stevenson alleges that Judge Schiano
dismissed the indictment (No. 2021-0353) on which he was
being held and “opened” a new charge the next day under
a different indictment (No. 71070-21/001), without releasing
Stevenson on the dismissed indictment (No. 2021-0353). He
claims that ADA Kennedy, DA Doorley, and Young conspired
with Judge Schiano to change the indictment. Id. at 21 (Ninth
Claim), 30 (Eighteenth Claim).
Stevenson also alleges that since his arrest he has been
illegally detained and incarcerated at MCJ and Elmira by
Sheriff Baxter, the DA's Office, DOCCS, and the State of New
York upon the orders of Judge Schiano. Id. at 29 (Seventeenth
Claim), 40 (Twenty-Eighth Claim), and 42 (Thirtieth Claim).
*4 On October 30, 2019, unidentified Sheriff's Deputies at
MCJ illegally terminated a visit and put Stevenson in SHU
without explanation. He received a ticket charging him with
possession of contraband. He received a sentence of 30 days
in SHU, a deduction from his inmate account, his girlfriend
was barred from visiting him, and, between October 30, 2019
and March 5, 2020, his visits were non-contact only. Id. at 44
(Thirty-Second Claim).
On or around January 2, 2023, Stevenson alleges that Sheriff's
Deputies Merolla, Hahn, and Gertin used “physical force”
to handcuff him and move him to another location at MCJ,
and that his neck, back, and wrist “were damaged.” Id. at 33
(Twenty-First Claim). On January 12, 2023, his cell at Elmira
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was searched and “flipped” outside of his presence. Id. at 43
(Thirty-First).
Stevenson asserts, in wholly conclusory terms, claims
under the Fourth, Fifth, Sixth, Seventh, Ninth, and Tenth
Amendments, 42 U.S.C. §§ 1985 and 1986, and 18 U.S.C. §§
241, 242, and 2382. Dkt. 1, at 1. He requests monetary relief
according to his “fee schedule,” removal of his name/trust/
estate from all databases, and release from physical custody.
Id. at 9–10.
II. SECTION 1983 CLAIMS
As noted above, Stevenson has moved to correct both the
“title” of this action and the “Nature of Suit,” which are
reflected on the docket report as 42 U.S.C. § 1983 and “550
Prisoner Civil Rights,” respectively. Dkt. 12. He wants the
title changed to “42 U.S.C. § 1985” and the Nature of Suit
changed to “Common Law Action.” Id.
Initially, the Court notes that neither the title nor Nature of
Suit reflected on the docket sheet affects how his claims
are construed. McLeod v. Jewish Guild for the Blind, 864
F.3d 154, 156 (2d Cir. 2017) (“As we have repeatedly stated,
[w]e liberally construe pleadings and briefs submitted by pro
se litigants, reading such submissions to raise the strongest
arguments they suggest.”) (quotation marks and brackets
omitted). They are merely administrative remarks for record-
keeping purposes. Thus, to the extent Stevenson's motion asks
the Clerk of Court to amend the title and Nature of Suit it is
denied.
More importantly, however, for Stevenson to base his claims
on violations of the numerous constitutional amendments
remunerated in the Complaint, he can only do so by bringing
any such violations under 42 U.S.C. § 1983. In other words,
the basis for his constitutional claims is section 1983. See
supra at n.1; see, e.g., Weaver, 1989 WL 98776, at *1 (Section
1983 is “the enabling civil rights statute for a cause of
action alleging a deprivation of constitutional rights.”). Thus,
if Stevenson asserts violations of his constitutional rights
by “persons” acting under color of law, he can only do so
by bringing those claims under section 1983. The Court,
therefore, construes Stevenson Complaint as being brought
under section 1983, and the other statutes asserted therein
—42 U.S.C. §§ 1985 and 1986, and 18 U.S.C. §§ 241, 242,
and 2382. 4
4 To the extent Stevenson asserts claims under 18
U.S.C. §§ 241, 242, and 2382, they are dismissed
because these criminal statues do not provide
private causes of action. See, e.g., Robinson v.
Overseas Military Sales Corp., 21 F.3d 502, 511
(2d Cir. 1994) (holding that 18 U.S.C. § 242 is
a criminal statute and does not provide a private
cause of action); Jones v. Papa, 21-CV-1099
(JMA) (ST), 2021 WL 4123056, at 5 n.3 (E.D.N.Y.
Sept. 8, 2021) (“It is well-established that there
is no private right of action under [18 U.S.C. §§
241, 242, and 2382].”) (internal quotation marks
omitted); Tsabbar v. Booth, 293 F. Supp. 2d 328,
335 (S.D.N.Y. 2003) (finding that the civil rights
provisions of Title 18 of the United States Code
do not allow private rights of action); Ammann v.
Connecticut, No. 3:04CV1647, 2005 WL 465401,
at *5 (D. Conn. 2005) (holding that no private cause
of action exists under 18 U.S.C. §§ 241 and 242).
*5 To state a valid claim under 42 U.S.C. § 1983, the plaintiff
must allege that the challenged conduct: “(1) was attributable
to a person acting under color of state law, and (2) deprived
the plaintiff of a right, privilege, or immunity secured by
the Constitution or laws of the United States.” Whalen v.
County of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing
Eagleston v. Guido, 41 F.3d 865, 875–76 (2d Cir. 1994)).
Section 1983 itself “creates no substantive rights; it provides
only a procedure for redress for the deprivation of rights
established elsewhere.” Sykes, 13 F.3d at 519.
To establish liability against an official under section 1983,
a plaintiff must allege that individual's personal involvement
in the alleged constitutional violation; it is not enough
to assert that the defendant is a link in the chain of
command. See McKenna v. Wright, 386 F.3d 432, 437 (2d
Cir. 2004). Moreover, the theory of respondeat superior is
not available in a section 1983 action. See Hernandez v.
Keane, 341 F.3d 137, 144 (2d Cir. 2003). “[T]here is no
special rule for supervisory liability. Instead, a plaintiff must
plead and prove that each Government-official defendant,
through the official's own individual actions, has violated the
Constitution.” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d
Cir. 2020) (internal quotation marks omitted).
III. DEFENDANTS ENTITLED TO IMMUNITY
The true nature or basis of Stevenson's claims is difficult
to decipher and understand—e.g., illegally used his name/
trust/estate during numerous court appearances and on
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various charging and other documents in the state court
criminal proceedings. However, whether Stevenson's claims
are construed under section 1983 or sections 1985 and 1986,
and whether they have any merit, several Defendants sued
are entitled to immunity from suit or monetary relief on these
claims. Additionally, as addressed below, these claims do not
allege a plausible claim for relief regardless of how they are
construed.
A. Eleventh Amendment
Stevenson sues New York, DOCCS, and Elmira and
seeks monetary damages against them. Any claims for
damages against these Defendants are barred by the Eleventh
Amendment. The Eleventh Amendment bars federal court
claims against states, absent their consent to such suit or an
express statutory waiver of immunity. See Will v. Mich. Dep't
of State Police, 491 U.S. 58, 66 (1989); Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 98–100 (1984). This
also extends to agencies and officials sued in their official
capacities. Kentucky v. Graham, 473 U.S. 159, 166 (1985).
An “official arm of the state,” such as DOCCS or Elmira,
“enjoys the same Eleventh Amendment immunity from suit
in federal court as is enjoyed by the state itself.” Posr v. Ct.
Officer Shield No. 207, 180 F.3d 409, 414 (2d Cir. 1999); see
also Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ.,
466 F.3d 232, 236 (2d Cir. 2006) (Eleventh Amendment
immunity extends to “state agents and state instrumentalities
that are, effectively, arms of a state.”) (internal quotation
marks omitted); Rother v. N.Y. State Dep't of Corr. and Cmty.
Supervision, 970 F. Supp. 2d 78, 89–90 (N.D.N.Y. 2013)
(“DOCCS and its facilities are state agencies for purposes of
the Eleventh Amendment.”). Accordingly, Stevenson's claims
against New York, DOCCS, and Elmira are dismissed without
leave to amend. 5
5 Stevenson alleges that, on January 12, 2023,
unidentified Elmira corrections officers searched
his cell in his absence. Dkt. 1, at 43 (Thirty-First).
He brings this claim against New York, DOCCS,
and Elmira. Even if the Court were to grant him
leave to amend to assert this claim against the
individual corrections officers who searched his
cell, the claim would be dismissed because inmates
do not have a reasonable expectation of privacy
in their cells. Hudson v. Palmer, 468 U.S. 517,
526 (1984) (holding that “the Fourth Amendment
proscription against unreasonable searches does
not apply within the confines of the prison cell”);
see also Willis v. Artuz, 301 F.3d 65, 69 (2d Cir.
2002) (holding that “society is not prepared to
recognize as legitimate any subjective expectation
of privacy that a [convict] might have in his prison
cell.”) (quoting Hudson, 468 U.S. at 526).
B. Absolute Judicial and Prosecutorial Immunity
*6 Plaintiff sues Judge Schiano, DA Doorley, and ADA
Kennedy alleging, inter alia, that during the numerous
court proceedings in Stevenson's criminal prosecution these
Defendants and others illegally used his name/trust/estate
without his authorization. Dkt. 1, at 9, 12–19, 22–28, 34–
35, and 39 (Second through Eighth, Tenth through Sixteenth,
Nineteenth, Twenty-Second through Twenty-Third, Twenty-
Seventh, and Twenty-Ninth Claims). He also alleges: (1)
DA Doorley signed off on an indictment (No. 2019-0590)
that illegally used Stevenson's name/trust/estate, id. at
32 (Twentieth Claim); (2) Judge Schiano dismissed the
indictment (No. 2021-0353) on which he was being held
and “opened” a new charge the next day under a different
indictment (No. 71070-21/001), without releasing Stevenson
on the dismissed indictment (No. 2021-0353); and (3) ADA
Kennedy, DA Doorley, and Young conspired with Judge
Schiano to change the indictment. Id. at 21 (Ninth Claim), 30
(Eighteenth Claim). Stevenson also alleges that DA Doorley
used his name/trust/estate on her Facebook page illegally and
made false and negative remarks about his character. Id. at 31
(Nineteenth Claim).
1. Judicial Immunity
It is well settled that judges are absolutely immune from
suit for any actions taken within the scope of their judicial
responsibilities. See, e.g., Mireles v. Waco, 502 U.S. 9, 10
(1991).
Although unfairness and injustice to a litigant may result on
occasion, “it is a general principle of the highest importance
to the proper administration of justice that a judicial officer,
in exercising the authority vested in him, shall be free
to act upon his own convictions, without apprehension of
personal consequences to himself.”
Id. at 10 (quoting Bradley v. Fisher, 80 U.S. 335, 347 (1871)).
The protection of immunity is not pierced by allegations that
the judge acted in bad faith or with malice, Pierson v. Ray, 386
U.S. 547, 554 (1967), even though “unfairness and injustice
to a litigant may result on occasion,” Mireles, 502 U.S. at 10.
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The United States Supreme Court has expressly applied the
doctrine of judicial immunity to actions brought pursuant to
42 U.S.C. § 1983. See Pierson, 386 U.S. at 553–54. The
doctrine of judicial immunity also applies to actions brought
under sections 1985 and 1986. See Turner v. Boyle, 116 F.
Supp. 3d 58, 81–82 (D. Conn. 2015) (“[A]bsolute immunity
extends to all civil suits, including suits brought under Section
1983 and section 1985.”); see also Emerick v. Connecticut,
No. 3:18-cv-01766 (SRU), 2021 WL 965680, at *1 (D.
Conn. Mar. 15, 2021) (denying motion for reconsideration
of dismissal of section 1985 claim because “judges are
entitled to absolute immunity for actions undertaken in
the performance of their duties as judges, regardless of
the underlying cause of action”) (internal quotation marks
omitted).
Because the allegations against Judge Schiano all involve
actions taken in his role as the judge presiding over
Stevenson's criminal proceeding, Judge Schiano is entitled to
absolute judicial immunity from all claims made against him.
2. Prosecutorial Immunity
Similarly, “absolute immunity protects a prosecutor from ...
liability for virtually all acts, regardless of motivation,
associated with his function as an advocate.” Dory v. Ryan,
25 F.3d 81, 83 (2d Cir. 1994). In Imbler, the Supreme
Court “defined the scope of prosecutorial immunity not by
the identity of the actor, but by reference to the ‘function’
performed.” Warney v. Monroe County, 587 F.3d 113, 121
(2d Cir. 2009) (quoting Imbler v. Pachtman, 424 U.S. 409,
430 (1976)). Under this functional approach, prosecutors are
immune from liability for acts that are “intimately associated
with the judicial phase of the criminal process ....” Imbler,
424 U.S. at 430. By contrast, “[a] prosecutor's administrative
duties and those investigatory functions that do not relate to an
advocate's preparation for the initiation of a prosecution or for
judicial proceedings are not entitled to absolute immunity.”
Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
*7 Here, the allegations against DA Doorley and ADA
Kennedy—except arguably the allegation regarding a posting
on Doorley's Facebook page—involve acts “intimately
associated with the judicial phase of the criminal process ....”
Imbler, 424 U.S. at 430. Kennedy allegedly made numerous
court appearances on behalf of the District Attorney's Office
and Doorley allegedly signed and filed an indictment charging
Stevenson with criminal offenses. These acts clearly all
occurred within their roles as advocates on behalf of the
county prosecutor's office. See, e.g., Ogunkoya v. Monaghan,
913 F.3d 64, 72 (2d Cir. 2019) (Prosecutors have absolute
immunity for decisions and acts which “constituted an
exercise of their prosecutorial discretion in preparing a
case for indictment and deciding when, where, and how to
prosecute.”). 6
6 Stevenson also names the District Attorney's Office
as a defendant based on the acts of Doorley and
Kennedy. Because the District Attorney's Office is
merely an administrative arm of the County, and
not a separate entity capable of being sued, any
claims against it are dismissed. See, e.g., Conte v.
County of Nassau, No. 06-CV-4746 (JFB)(ETB),
2008 WL 905879, at 1 n.2 (E.D.N.Y. Mar. 31,
2008) (dismissing claims against Nassau County
District Attorney's Office and New York City
Police Department because “[u]nder New York
law, departments which are merely administrative
arms of a municipality, do not have a legal identity
separate and apart from the municipality and cannot
sue or be sued.”) (internal quotation marks omitted)
(quoting Hill v. City of White Plains, 185 F. Supp.
2d 293, 303 (S.D.N.Y. 2002)).
Additionally, even if the Court were to construe
the claims against the District Attorney's Office as
ones against the County of Monroe and substitute
the County as a defendant, said claims would
nonetheless be dismissed because under Monell
v. Dep't of Soc. Servs., 436 U.S. 658 (1978), a
municipality is liable under section 1983 only
if a plaintiff can show that “he suffered the
denial of a constitutional right that was caused
by an official municipal policy or custom.” Frost
v. N.Y.C. Police Dep't, 980 F.3d 231, 257 (2d
Cir. 2020) (internal quotation marks omitted); see
also Lucente v. County of Suffolk, 980 F.3d 284,
297 (2d Cir. 2020). Moreover, there can be no
liability against the municipality under Monell
unless there is an underlying unconstitutional act
by an employee of the municipality. See Claudio
v. Sawyer, 675 F. Supp. 2d 403, 408 (S.D.N.Y.
2009) (“Under Second Circuit case law ... a
prerequisite to municipal liability under Monell is
an underlying constitutional violation by a state
actor.”). Here, Stevenson has not plausibly alleged
any unconstitutional acts by Doorley or Kennedy.
Additionally, “the actions of county prosecutors in
New York are generally controlled by municipal
policymakers for purposes of Monell, with a
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narrow exception ... being the decision of whether,
and on what charges, to prosecute.” Bellamy v. City
of New York, 914 F.3d 727, 759 (2d Cir. 2019); see
also Anilao v. Spota, 27 F.4th 855, 874 (2d Cir.
1993) (“Under the narrow exception that we noted
in Bellamy, a district attorney in New York is not
an officer or employee of the municipality but is
instead a quasi-judicial officer acting for the state
in criminal matters.”) (internal quotation marks and
citation omitted). Thus, to the extent Stevenson is
basing his claims against the DA's Office and the
County on Doorley's and Kennedy's prosecution of
him, Doorley and Kennedy were not employees of
the County for purposes of Monell liability.
The one alleged act that may fall outside DA Doorley's role as
an advocate is the allegation that she posted something false
on her Facebook page that illegally used Stevenson's name/
trust/estate and made “negative remarks about [Stevenson]
and [his] character.” Dkt. 1, at 31 (Nineteenth Claim). As
addressed further below, to the extent Stevenson is asserting
a constitutional right to privacy or a claim under N.Y. Civ.
Rights Law §§ 50–51, he fails to state a claim, and that claim
is dismissed without leave to amend. Similarly, to the extent
he is alleging a defamation claim under 42 U.S.C. § 1983, he
fails to state a claim, and that claim must be dismissed.
*8 Defamation by a state actor “does not amount to a
deprivation of ‘liberty’ or ‘property’ within the meaning of
the Fourteenth Amendment, unless accompanied by some
interest other than mere loss of reputation.” Balentine v.
Tremblay, 554 F. App'x 58, 60 (2d Cir. 2014) (summary
order) (affirming dismissal of section 1983 due process claim
based on defamation) (citing Paul v. Davis, 424 U.S. 693,
711 (1976)); see also Sadallah v. City of Utica, 383 F.3d 34,
38 (2d Cir. 2004) (“Defamation ... is an issue of state law,
not of federal constitutional law, and therefore provides an
insufficient basis to maintain a [section] 1983 action.”). Thus,
to allege a claim under section 1983 “predicated upon an act
of defamation, a plaintiff must allege what is colloquially
referred to as ‘stigma-plus’ claim: ‘a stigmatizing statement
plus a deprivation of a tangible interest’ without due process
of law.” Balentine, 554 F. App'x at 60 (quoting Algarin v.
Town of Wallkill, 421 F.3d 137, 138 (2d Cir. 2005)).
A “stigma-plus” claim requires that a plaintiff show: “(1)
the utterance of a statement sufficiently derogatory to injure
his or her reputation, that is capable of being proved false,
and that he or she claims is false, and (2) a material state-
imposed burden or state-imposed alteration of the plaintiff's
status or rights.” Sadallah, 383 F.3d at 38 (internal quotation
marks omitted). In other words, the “defamatory statement
must be sufficiently public to create or threaten a stigma” and
the “plaintiff must also allege that the statement was made
without due process of law.” Kennedy v. Caruso, No. 3:19-
CV-260 (VLB), 2020 WL 1515672, at *3 (D. Conn. Mar. 30,
2020) (internal citations and quotations omitted).
Stevenson does not allege the statement that Doorley made or
posted, let alone any facts to support a stigma-plus claim in
violation of the Fourteenth Amendment. See, e.g., Williams
v. Carpenter, 214 F. Supp. 3d 197, 202 (W.D.N.Y. 2016)
(dismissing plaintiff's stigma-plus claim based on police
officer's statement that plaintiff was the “key suspect” in a
hit-and-run accident, which led to the violation of plaintiff's
parole). Thus, to the extent Stevenson is alleging a stigma-
plus claim, it is dismissed without leave to amend because any
amendment would be futile.
Accordingly, the claims against Doorley and Kennedy are
dismissed without leave to amend. See Cuoco, 222 F.3d at
112.
IV. CLAIMS AGAINST DEFENSE ATTORNEYS
Plaintiff sues several attorneys who represented him during
his criminal prosecution: Damelio, Young, Astacio, Riatto,
and Swiff. He alleges that they participated in numerous court
proceedings where his name/trust/estate was used illegally
and without his authorization, that they wrote letters to him
at MCJ, and that two of them, Riatto and Swiff, failed
to follow through on their promises to assist him. Dkt.
1, at 12–30, 36–37 (Third through Eighth, Tenth through
Sixteenth, Eighteenth, and Twenty-Fourth through Twenty-
Fifth Claims). These claims are dismissed without leave to
amend because criminal defense attorneys, who represent a
client during criminal proceedings, are not “persons” acting
under color of state law for purposes of liability under section
1983. See Polk County v. Dodson, 454 U.S. 312, 325 (1981).
To support a section 1983 claim, the defendant must be acting
under “color of state law.” It is well established, however, that
an attorney representing a client in a criminal trial, whether
that attorney is a public defender, legal aid attorney, or court-
appointed counsel, is not acting under the color of state law.
See Polk County, 454 U.S. at 325; see also Rodriquez v.
Weprin, 116 F.3d 62, 65–66 (2d Cir. 1997) (stating that it is
well established that private attorneys—even if the attorney
was court appointed—are not state actors for the purposes
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of section 1983 claims.). Stevenson's attorneys, therefore, are
not state actors under section 1983.
*9 Stevenson has also not asserted any plausible allegations
that his attorneys conspired with the prosecutors or court
in any way. See, e.g., Tower v. Glover, 467 U.S. 914, 923
(1984) (public defender who conspired with state officials
held liable under section 1983); see also Adickes v. S.H. Kress
& Co., 398 U.S. 144, 152 (1970) (“[A] private party involved
in a ... conspiracy [to violate the Fourteenth Amendment],
even though not an official of the State, can be liable under
[section] 1983.”). His only allegations are that his attorneys,
Judge Schiano, DA Doorely, and ADA Kennedy “aided and
abetted one another in a conspiracy” to use his name/trust/
estate. Dkt. 1, at 12 (Third Claim). These allegations are
simply too conclusory to state a claim that his attorneys
conspired with state officials to violate his constitutional
rights. See, e.g., Ciambriello v. County of Nassau, 292 F.3d
307, 324 (2d Cir. 2002) (“A merely conclusory allegation
that a private entity acted in concert with a state actor does
not suffice to state a [section] 1983 claim against the private
entity.”). Moreover, as addressed below, Stevenson fails to
state a claim that his attorneys used his name/trust/estate. 7
7 Stevenson's allegations that Riatto and Swiff were
retained to assist him and failed to do so asserts
only a state common law legal malpractice claim,
which is not actionable under section 1983. See,
e.g., Daniels v. Williams, 474 U.S. 327, 330–31
(1986) (mere negligence is not actionable under
section 1983). Further, even if these allegations
are construed as a legal malpractice claim and the
Court had supplemental jurisdiction over them, see
28 U.S.C. § 1367(c), they fail to state a claim under
state law. See Abuhouran v. Lans, 269 F. App'x
134, 135 (2d Cir. 2008) (summary order) (“Under
New York law, ‘[t]o state a cause of action for legal
malpractice arising from negligent representation
in a criminal proceeding, plaintiff must allege
his innocence or a colorable claim of innocence
of the underlying offense, for so long as the
determination of his guilt of that offense remains
undisturbed, no cause of action will lie.’ ”) (quoting
Carmel v. Lunney, 511 N.E.2d 1126, 1128 (N.Y.
1987) (internal citation omitted)). Stevenson has
not alleged that his conviction is not intact currently
or that he has a colorable claim of innocence. He
alleges only that his name/trust/estate has be used
without his authorization.
V. RIGHT TO PRIVACY CLAIM
As stated above, the primary (and oft-repeated) basis of
Stevenson's claims is that during numerous state court
proceedings and on documents filed in relation to his
underlying criminal prosecution and pre-trial and post-
conviction detention, Defendants illegally used his name/
trust/estate without his authorization. Dkt. 1, at 9, 12–19, 22–
28, 34–36, and 39 (Second through Eighth, Tenth through
Sixteenth, Nineteenth, Twenty-Second through Twenty-
Fourth, Twenty-Seventh, and Twenty-Ninth Claims). The true
nature of these claims is unclear and has no merit. It simply
cannot be unlawful or unconstitutional to use a defendant's
name in a criminal prosecution or on documents initiating
that prosecution. The Court, however, must liberally construe
the Complaint to raise the strongest arguments it suggests.
McCleod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d
Cir. 2017). Accordingly, the Court construes the Complaint as
alleging either that Defendants used his name for commercial
purposes in violation of New York Civil Rights Law §§
50–51, or in violation of his right to privacy. Construed either
way, these claims are dismissed.
First, assuming the Court has supplemental jurisdiction
over the N.Y. Civ. Rights Law, §§ 50–51 claim, see 28
U.S.C. § 1367(c), it must be dismissed because there are
no allegations that Defendants used, misappropriated, and
exploited Stevenson's name for commercial purposes. See
N.Y. Civ. Rights Law §§ 50–51; Rafter v. Bank of Am., 04
Civ. 3341 (JSR) (KNF), 2009 WL 691929, at *10 (S.D.N.Y.
Mar. 12, 2009), subsequently aff'd sub nom. Rafter v. Fleet
Bos. Fin. Corp., 523 F. App'x 79 (2d Cir. 2013) (dismissing
right to privacy claims and claims under N.Y. Civ. Rights Law
§§ 50–51, because there is no common-law right to privacy
recognized in New York, and there are no allegations that
defendant “misappropriated and exploited, for a commercial
purpose, [plaintiff's] name, portrait or picture.”).
*10 Second, to the extent Stevenson may be asserting a
right to privacy claim under section 1983, it fails. Aside
from Fourth Amendment issues, the Supreme Court has found
that the right to privacy encompasses other matters. See
Paul v. Davis, 424 U.S. 693, 712–13 (1976). But Stevenson
does not allege any privacy interests recognized as being
entitled to protection by the Supreme Court. Id. at 713
(affirming dismissal of plaintiff's right to privacy claim based
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on allegation that defendant created police records containing
false information and distributed the false information).
Accordingly, all claims alleging that Defendants illegally
used Stevenson's name/trust/estate without authorization are
dismissed in their entirety without leave to amend. See Cuoco,
222 F.3d at 112 (affirming denial of leave to amend complaint
because leave would be futile).
VI. EXCESSIVE FORCE AND FALSE ARREST
Stevenson alleges that on August 27, 2019, he was
“surrounded” without probable cause and “assaulted” to the
ground. He also alleges that Seng threatened to shoot him.
Dkt. 1, at 8–9 (First Claim). He was assaulted to the ground
a second time when he tried to run and an officer sprayed
something in his face, which caused vision and breathing
difficulties. One officer placed his knee on Stevenson's
neck. The officers removed his shoes, walked him over to
another car, and drove him to the police station. Id. at 8–9,
11. Stevenson also alleges that Seng filed a false criminal
complaint. Id. at 9 (Second Claim).
The Court construes these allegation as asserting: (1) the use
of excessive force during an arrest, and (2) false arrest—
both in violation of the Fourth Amendment. These claims,
however, are time-barred under the applicable statute of
limitations.
A. Excessive Force
Section 1983 claims brought in New York State have a three-
year statute of limitations. Owens v. Okure, 488 U.S. 235, 251
(1989) (holding that New York's three-year residual personal
injury statute of limitations applies to section 1983 actions);
Jewell v. County of Nassau, 917 F.2d 738, 740 (2d Cir.
1990). Federal courts are required to borrow New York's
rules for tolling the statute of limitations unless the rules are
inconsistent with federal law. Bd. of Regents of Univ. of State
of N.Y. v. Tomanio, 446 U.S. 478, 487–491 (1980). Federal law
controls when a claim accrues, however. Kronisch v. United
States, 150 F.3d 112, 123 (2d Cir. 1998).
A claim for excessive force during an arrest accrues when the
use of force occurred. Singleton v. City of New York, 632 F.2d
185, 191 (2d Cir. 1980); Wharton v. County of Nassau, No. 07-
CV-2137 (RRM) (ETB), 2010 WL 3749077, at *8 (E.D.N.Y.
Sept. 20, 2010). Stevenson's claim, thus, accrued on August
27, 2019, which is more than three years before he filed his
Complaint. Dkt. 1. 8
8 Stevenson filed his Complaint at the earliest on
February 2, 2023, when he signed the Complaint.
Dkt. 1, at 5. The Complaint was not received by the
Clerk of Court and filed until March 7, 2023. Id. at
1. “The prison mailbox rule provides that a pro se
prisoner's [pleading] is deemed filed at the moment
he gives it to prison officials.” Hardy v. Conway,
162 F. App'x 61, 62 (2d Cir. 2006) (summary order)
(citing Noble v. Kelly, 246 F.3d 93, 97 (2d Cir.
2001) (per curiam); Walker v. Jastremski, 430 F.3d
560 (2d Cir. 2005)). “[I]n the absence of contrary
evidence, district courts in this circuit have tended
to assume that prisoners’ papers were given to
prison officials on the date of their signing.” Hardy,
162 F. App'x at 62.
*11 The excessive force claim should be dismissed because
Stevenson filed his Complaint more than three years after
the use of excessive force allegedly occurred and there is
no basis for either statutory tolling, see N.Y. C.P.L.R. §§
206–209 (setting forth statutory bases for tolling statute of
limitations), or equitable tolling of the statute of limitations,
Menominee Indian Tribe of Wis. v. United States, 577 U.S.
250, 255 (2016) (setting forth criteria for equitably tolling
of statute of limitations: “(1) that [the plaintiff] has been
pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.”).
Before dismissing this claim, however, Stevenson must first
be provided notice and opportunity to address why the
Complaint should not be dismissed as time barred. See Abbas,
480 F.3d at 640 (district court erred in dismissing pro se
complaint as time-barred sua sponte and without notice and
an opportunity to be heard). Stevenson, therefore, is granted
leave to file an amended complaint and assert why his
excessive force claim is not barred by the statute of limitations
or why he is entitled to either statutory or equitable tolling of
the statute of limitations.
B. False Arrest
While the Court notes that the Complaint does not expressly
allege a claim of false arrest, Stevenson does allege that on
August 27, 2019, Laclair, Mandale, and Seng surrounded
him, prevented his movement, and placed him in a patrol
car without probable cause or a warrant. Thus, the Court
construes these allegations as asserting false arrest in violation
of the Fourth Amendment. This claim, however, is untimely
and, even if it was timely, it calls into question the validity of
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Plaintiff's conviction and would, therefore, be barred by Heck
v. Humphrey, 512 U.S. 477, 486–87 (1994).
1. Statute of Limitations
A claim for false arrest accrues at the time the plaintiff
is arraigned. Wallace v. Kato, 549 U.S. 384, 397 (2007)
(“[T]he statute of limitations upon a [section] 1983 claim
seeking damages for a false arrest in violation of the
Fourth Amendment, where the arrest is followed by criminal
proceedings, begins to run at the time the claimant becomes
detained to legal process.”); see also Swinton v. City of New
York, 785 F. Supp. 2d 3, 12 (E.D.N.Y. 2011) (limitations
period for false arrest begins to run “when [the defendant]
is bound over by a magistrate or arraigned on charges”)
(citation omitted). While the Complaint does not allege
when Stevenson was arraigned, it does allege that following
his arrest on August 27, 2019, Seng filed a false criminal
complaint against him. Dkt. 1, at 9, 11. The Court presumes,
therefore, that Stevenson was arraigned on or around August
27, 2019, which is more than three years before he filed the
Complaint.
The false arrest claim is untimely and there are no allegations
supporting tolling of the limitations period. While Stevenson
generally would be granted leave to file an amended
complaint addressing why this claim should not be dismissed
as untimely or why the limitations period is subject to tolling,
see Abbas, 480 F.3d at 640, the false arrest claim, even if
timely or subject to tolling, would nonetheless be barred under
Heck, 512 U.S. at 486–87. Thus, leave to amend is denied
with respect to the false arrest claim.
2. Heck v. Humphrey
Assuming arguendo that the false arrest claim is timely, it
would then be barred by Heck, wherein, the Supreme Court
held that
in order 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 [section] 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,
28 U.S.C. § 2254. A claim for
damages bearing that relationship to
a conviction or sentence that has not
been so invalidated is not cognizable
under [section] 1983.
*12 Heck, 512 U.S. at 486–87.
Because Stevenson does not allege that his conviction has
been reversed or overturned, 9 his false arrest claim, if timely,
is barred under Heck. 10 See Wallace, 549 U.S. at 393–94 (“If
the plaintiff is ultimately convicted, and ... the civil suit would
impugn that conviction, Heck will require dismissal.”)
9 The DOCCS website, https://
nysdoccslookup.doccs.ny.gov/, indicates that
Stevenson is incarcerated upon convictions from
Monroe County of Criminal Possession of a
Weapon, Second Degree, Criminal Possession of a
Controlled Substance, Third Degree, and Criminal
Possession of a Controlled Substance, Fourth
Degree. See Simmonds v. Family Dollar Store,
No. 18-CV-01241, 2018 WL 5447046, at *1 n.1
(E.D.N.Y. Oct. 25, 2018) (“The Court may take
judicial notice of Plaintiff's DOCCS inmate lookup
information.”)
10 To the extent the Complaint can be construed
as alleging a malicious prosecution claim, it too
is barred under Heck because success on such a
claim would necessarily imply the invalidity of
Stevenson's conviction arising from the arrest and
prosecution at issue and because Stevenson has
not alleged that his conviction has been reversed,
overturned, or invalidated in any way. See Heck,
512 U.S. at 486-87; see, e.g., McFadden v. New
York, No. 10-CV-141 (RRM)(CLP), 2011 WL
6813194, at *4 (E.D.N.Y. Dec. 28, 2011) (“Courts
in this Circuit routinely dismiss [false arrest and
malicious prosecution] claims where the plaintiff's
conviction has not been overturned or otherwise
invalidated.”) (collecting cases).
Similarly, to the extent Stevenson claims he is
and has been illegally detained and requests
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release from his detention, Dkt. 1, at 11, 42
(Thirtieth Claim), success on any such claims
would necessarily imply the invalidity of his
conviction and is barred under Heck. Any claims
requesting release from detention based on an
unlawful conviction or sentence must be brought
in a habeas corpus proceeding under 28 U.S.C.
§ 2254. See Preiser v. Rodriguez, 411 U.S. 475,
500 (973) (holding that “when a state prisoner
is challenging the very fact or duration of his
physical confinement, and the relief he seeks is
a determination that he is entitled to immediate
release ..., his sole federal remedy is a writ of
habeas corpus.”).
Accordingly, even if the false arrest claim is timely or subject
to tolling, it would nonetheless be barred by Heck. The Court,
therefore, denies Stevenson leave to amend the Complaint
to address why the false arrest claim is timely or subject to
tolling and dismisses the false arrest claim without prejudice.
See Amaker v. Weiner, 179 F.3d 48, 52 (2d Cir. 1999)
(dismissal under Heck must be without prejudice).
VII. CLAIMS ARISING AT MONROE COUNTY JAIL
A. Excessive Force
Stevenson alleges that on or about January 21, 2023, MCJ
Deputies Merolla, Hahn, and Gertin used “physical force” to
handcuff him and move him to another location at MCJ. He
suffered “damages” to his neck, back, and wrist. Dkt. 1, at
33 (Twenty-First Claim). Assuming Stevenson was a pretrial
detainee at this time, the excessive force claim is analyzed
under the Fourteenth Amendment's Due Process Clause. See
Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017).
*13 A pretrial detainee's claims are evaluated under the Due
Process Clause 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.
(internal quotation marks and citations omitted); see, e.g.,
Barnes v. Harling, 368 F. Supp. 3d 573, 596 (W.D.N.Y. 2019)
(noting that pretrial detainees’ [section] 1983 claims alleging
deliberate indifference are analyzed under the Fourteenth
Amendment using the standard set forth in Darnell).
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. Whether force was objectively unreasonable
depends on:
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 (noting that the above factors are illustrative).
Here, Stevenson fails to allege that the deputies used force
that was objectively unreasonable. He only asserts that the
deputies used “physical force” to handcuff him, and he
suffered some unspecified injuries to his neck, back, and
wrist. This is insufficient to plausibly allege an excessive
force claim in violation of the Fourteenth Amendment, but
Stevenson is granted leave to amend.
Moreover, to the extent that Plaintiff's claim is based on
an allegation that the handcuffs were too tight, the courts
consider whether: “(1) the handcuffs were unreasonably tight;
(2) the defendants ignored the [plaintiff's] pleas that the
handcuffs were too tight; and (3) the degree of injury to the
wrists.’ ” Ali v. Ramos, No. 16-CV-01994 (ALC), 2018 WL
1353210, at *5 (S.D.N.Y. Mar. 14, 2018) (quoting Lynch ex
rel. Lynch v. City of Mount Vernon, 567 F. Supp. 2d 459, 468
(S.D.N.Y. 2008)).
Again, Stevenson alleges only that corrections officers at
MCJ used “physical force” to handcuff him and move him to
another location at MCJ and that he suffered “damages” to his
neck, back, and wrist. Dkt. 1, at 33. He alleges nothing related
to the tightness of the handcuffs, whether he complained
about the tightness of the handcuffs and his complaints were
ignored, or anything related to the degree of injury to his
wrist. He alleges only that he suffered “damages” to his wrist.
Based on the lack of any allegations to plausibly allege an
excessive force claim based on tight handcuffing, this claim
is dismissed.
Stevenson, however, is granted leave to amend this claim. 11
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11 Stevenson also names MCJ as a defendant on
this claim. To the extent Stevenson asserts this
claim against MCJ, it must be dismissed without
leave to amend because: (1) under New York law,
MCJ is not an entity separate and apart from
the County and thus cannot be sued or sue, and
(2) there are no allegations that use of excessive
force occurred pursuant to a policy or custom.
See supra at n.6. Because the Court finds that
an amended claim against the County would be
futile, leave to amend the Complaint to assert a
Monell claim against the County is denied. Id.;
see Swinton v. Livingston County, No. 21-1434,
2023 WL 2317838, at *1 n.1 (2d Cir. Mar. 2,
2023) (summary order) (affirming district court's
sua sponte dismissal of claim against County
without leave to amend because “complaint gives
no indication that [the plaintiff] could plausibly
allege a Monell claim against the Counties and the
Jails”).
B. Due Process
*14 Stevenson alleges that on or about October 30, 2019,
unidentified deputies at MCJ terminated a visit and placed
him in SHU “without telling him why.” Dkt. 1, at 44 (Thirty-
Second Claim). He later received a ticket stating he was
“penalized” for possessing contraband. He was never told
what the contraband was. He was in SHU for thirty days,
and MCJ banned his girlfriend from visiting him, prohibited
contact visits for over four months, and took money from
his account. Id. At its essence, Stevenson alleges that he was
denied procedural due process before he was sentenced to
SHU for thirty days and denied contact visits, and visits with
his girlfriend, based on a finding that he possessed contraband
during a prison visit. This claim is both barred by the statute of
limitations and fails to state a claim upon which relief can be
granted, but Plaintiff will be granted leave to file an amended
complaint to address why this claim is not time-barred and
allege facts establishing a plausible due process claim.
1. Statute of Limitations
A procedural due process claim related to a disciplinary
hearing accrues “either at the date of the disciplinary hearing
or at the date the prisoner's final administrative appeal is
decided.” See Tafari v. Rock, No. 11-CV-0057, 2012 WL
1424725, at *2 (W.D.N.Y. April 24, 2012) (quoting Williams
v. Roberts, No. 9:11-CV-29 (GTS/RFT), 2011 WL 7468636,
at *5 (N.D.N.Y. Dec. 15, 2011); see also Best v. Newton,
No. 15-CV-4316, 2016 WL 5416505, at *5 (S.D.N.Y. Sept.
28, 2016) (“For procedural due process actions related to
disciplinary hearings, courts in the Second Circuit generally
set the accrual date at the date of the disciplinary hearing.”)
(collecting cases)).
Plaintiff alleges that after a visit was terminated on October
30, 2019, he was issued a ticket for possession of contraband,
sentenced to thirty days in SHU, and denied contact visits.
While he does not allege the date of his hearing, it can safely
be presumed that it occurred shortly after October 30, 2019.
The Complaint was not filed until, at the earliest, February
2, 2023, see supra at n.8, which is more than three months
after the alleged denial of due process. Plaintiff's due process
claim thus appears time barred and subject to dismissal, but he
will be provided an opportunity to file an amended complaint
alleging that his due process claim is not time barred or that
he is subject to tolling of the statute of limitations.
2. Failure to State Claim
Under the Due Process Clause of the Fourteenth Amendment,
a pretrial detainee “may not be punished prior to an
adjudication of guilt in accordance with due process of
law.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). 12 Not
every restriction of confinement “imposed during pretrial
detention amounts to ‘punishment’ in the constitutional sense,
however.” Id. at 537. The Court must determine whether
a condition or restriction placed upon a pretrial detainee
“is imposed for the purpose of punishment or whether it
is but an incident of some other legitimate governmental
purpose.” Id. at 538. Absent a showing of an “expressed
intent to punish on the part of detention facility officials, that
determination generally will turn on ‘whether an alternative
purpose to which [the restriction] may rationally be connected
is assignable for it, and whether it appears excessive in
relation to the alternative purpose assigned [to it].’ ” Id.
(citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169
(1963)). When a particular condition or restriction of pretrial
detention “is reasonably related to a legitimate governmental
objective, it does not, without more, amount to ‘punishment.’
” Id. at 539.
12 Sandin v. Conner, 515 U.S. 472 (1995) “does
not apply to pretrial detainees and ... accordingly,
pretrial detainees need not show that an imposed
restraint imposes atypical and significant hardships
to state deprivation of a liberty interest protected
by procedural due process.” Iqbal v. Hasty, 490
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F.3d 143, 163 (2d Cir. 2007), rev'd on other
grounds sub nom. Ashcroft v. Iqbal, 556 U.S. 662
(2009); see also Richardson v. Vermont, No. 1:15-
cv-120, 2015 WL 9921313, at *7 (D. Vt., Dec. 23,
2015) (Sandin's “atypical and significant hardship”
standard does not apply to pretrial detainees)
(citation omitted).
*15 In Wolff, the Supreme Court held that “prison
disciplinary proceedings must follow specific procedures in
order to satisfy due process.” Richardson v. Vermont, No.
1:15–cv–120, 2015 WL 9921313, at *7 (D. Vt. Dec. 23, 2015)
(quoting Wolff v. McDonnell, 418 U.S. 539, 564–66 (1974)).
The Wolff procedures include “written notice, adequate time
to prepare a defense, a written statement of the reasons for
action taken, and a limited ability to present witnesses and
evidence.” Benjamin v. Fraser, 264 F.3d 175, 190 (2d Cir.
2001). These procedures apply if “the restraint on liberty
is imposed for disciplinary reasons; if the restraint is for
‘administrative’ purposes, the minimal procedures outlined
in Hewitt [v. Helms, 459 U.S. 460 (1983)] are all that is
required.” 13 Id. Procedural due process requires that “pretrial
detainees can only be subjected to segregation or other
heightened restraints if a pre-deprivation hearing is held to
determine whether any rule has been violated.” Johnston v.
Maha, 606 F.3d 39, 41 (2d Cir. 2010) (citing Benjamin, 264
F.3d at 190); see also Muhmmaud v. Murphy, No. 08–CV–
1199, 2009 WL 4041404, at *6 (D. Conn. Nov. 19, 2009)
(“Before a pretrial detainee may be punished, he must be
afforded the procedural protections set forth in Wolff .... The
detainee cannot be punished until after the hearing is held.”).
13 Under Hewitt, “ ‘[a]n inmate must merely receive
some notice of the charges against him and
an opportunity to present his views to the
prison official charged with deciding whether to
transfer him to administrative segregation,’ and the
‘proceeding must occur within a reasonable time
following an inmate's transfer.’ ” Taylor v. Comm'r
of N.Y.C. Dep't of Corr., 317 F. App'x 80, 82 (2d
Cir. 2009) (summary order) (quoting Hewitt, 459
U.S. at 476 n.8).
Stevenson alleges that he received a ticket, following a prison
visit, charging him with possessing contraband. As a result,
he claims he was sentenced to SHU for thirty days and denied
contact visits for four months. These allegations alone are
insufficient to state a plausible due process claim.
Assuming Stevenson's SHU confinement was punitive, see
Shine v. Hofmann, No. 06–CV–237, 2009 WL 2179969, at
*5 (D. Vt. July 22, 2009) (stating that “special confinement
based upon a disciplinary violation rings of punishment”); see
also Benjamin, 264 F.3d at 190 (“[T]he procedures required
by Wolff apply if the restraint on liberty is imposed for
disciplinary reasons.”); Mitchell v. Dep't of Corr., No. 05-
CV5792, 2008 WL 744041, at *13 (S.D.N.Y. Feb. 20, 2008)
(“The ... Second Circuit has held that a pretrial detainee
subject to discipline for an infraction is entitled to the due
process protections set forth in Wolff ....”), the Complaint
is silent regarding what procedural protections Stevenson
was denied. See Wolff, 418 U.S. at 564-66; cf. Best, 14 F.
Supp. 3d at 351 (denying motion to dismiss because the
plaintiff plausibly alleged that his placement in segregated
confinement was punitive and not administrative in nature,
and that he was denied one of the procedural protections
guaranteed under Wolff—the right to call witnesses). In the
absence of any such allegations, Stevenson fails to state
a plausible claim for relief. Stevenson, however, will be
granted leave to amend this claim to allege what protections
guaranteed under Wolff he was denied. Any amended
complaint must also name the deputies at MCJ whom he
claims disciplined him without due process—e.g., the hearing
officer or deputies involved in his discipline. 14 If Stevenson
does not know the names of the deputies, he can name them
as John Doe Defendants and provide identifying information,
including a physical description, their title or position, the
area at MCJ where the incident occurred, and any other
information that would assist in identifying them.
14 To the extent this claim is brought against MCJ, it is
dismissed with prejudice because, as stated above,
MCJ cannot be sued and even if the County was
substituted in MCJ's place there are no allegations
suggesting that Stevenson was disciplined without
due process pursuant to a policy or custom of the
County. See supra at n.6 and n.11.
VIII. SECTIONS 1985 AND 1986
*16 As addressed above, Stevenson lists 42 U.S.C. §§ 1985
and 1986 as a basis for his claims. Dkt. 1, at 1. In his
motion, he also requests that the Court correct the title of this
action to section 1985, not section 1983. Dkt. 12. Stevenson's
claims under sections 1985 and 1986 are dismissed because
Stevenson fails to state plausible claims for relief.
To state a plausible claim for relief under section 1985, a
plaintiff must allege: “[i] a conspiracy, [ii] for the purpose
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of depriving any person ... of the equal protection of the
laws ..., [iii] an act in furtherance of the conspiracy, and
[iv] whereby a person is injured in his person or property
or deprived of a right or privilege of a citizen.” Benzinger
v. NYSARC, Inc. N.Y.C. Chapter, 385 F. Supp. 3d 224, 236
(S.D.N.Y. 2019) (quoting Iqbal v. Hasty, 490 F.3d 143, 176
(2d Cir. 2007), rev'd on other grounds by Ashcroft v. Iqbal, 556
U.S. 662 (2009)). To succeed, a plaintiff must also show that
“there was ‘some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators’
action.’ ” Benzinger, 385 F. Supp. 3d at 236 (quoting Griffin
v. Breckenridge, 403 U.S. 88, 102 (1971)).
A plaintiff must show that “defendants entered into an
agreement, express or tacit, to achieve the unlawful end,
augmented by some details of time and place and the alleged
effects of the conspiracy.” K.D. ex rel. Duncan v. White
Plains Sch. Dist., 921 F. Supp. 2d 197, 208 (S.D.N.Y. 2013)
(internal quotation marks omitted). Significantly, “vague and
unsupported assertions of conspiracy ... do not suffice.”
Reid v. City of New York, No. 20 Civ. 9243 (KPF), 2022
WL 2967359, at *20 (S.D.N.Y. July 27, 2022). Complaints
containing only conclusory, vague, or general allegations
that the defendants have engaged in a conspiracy to deprive
the plaintiff of his constitutional rights may properly be
dismissed. See, e.g., Roundtree v. NYC, No. 19-CV-2475
(JMF), 2021 WL 1667193, at *6 (S.D.N.Y. Apr. 28, 2021)
(finding plaintiff's “bare allegations” that defendants engaged
in a conspiracy insufficient to state a claim under Section
1985(3)) (collecting cases); see also Doe v. Fenchel, 837
F. App'x 67, 68 (2d Cir. 2021) (summary order) (affirming
dismissal of Section 1985(3) claim where plaintiff's “naked
assertion[s]” that defendants engaged in impermissible
conspiracy were “devoid of further factual enhancement”)
(citation and internal quotation marks omitted).
Here, the Complaint is devoid of any allegations sufficient
to allege a conspiracy to deprive Stevenson of his
constitutional rights and that the conspiracy was based on
some racial or other class-based invidious discriminatory
animus. Throughout the Complaint, Stevenson simply alleges
that Defendants conspired to illegally use his name/trust/
estate without his authorization. These conclusory and naked
assertions of a conspiracy fail to state a plausible claim under
section 1985(3), and this claim must be dismissed without
leave to amend. See Cuoco, 222 F.3d at 112.
Similarly, because the claim under section 1986, which
“imposes liability on an individual who has knowledge
of discrimination prohibited under [section] 1985,” is
“contingent on a valid [section] 1985 claim[,]” Graham v.
Henderson, 89 F.3d 75, 82 (2d Cir. 1996); see also Johnson
v. City of New York, 669 F. Supp. 2d 444, 452 (S.D.N.Y.
2009) (dismissing section 1986 claims because such claim “is
contingent on the existence of a valid section 1985 claim”),
Stevenson's claim under section 1986 is dismissed without
leave to amend.
CONCLUSION
*17 For the reasons set forth above, each of the claims set
forth in the Complaint are dismissed, without leave to amend,
under 28 U.S.C. § 1915A(b)(1)–(2), except the following
claims which will be dismissed, with leave to amend, under
section 1915A(b)(1)–(2), unless Stevenson files an amended
complaint no later than May 5, 2025, in which he includes
the necessary allegations as directed above and in a manner
that complies with Rules 8 and 10 of the Federal Rules of Civil
Procedure: (1) the excessive force claim during the course of
Stevenson's arrest against Defendants Laclair, Mandale, and
Seng, Dkt. 1, at 8–9, 11 (First Claim); (2) the excessive force
claim at MCJ against Defendants Merolla, Hahn, and Gertin,
id. at 32 (Twenty-First Claim); and (3) the procedural due
process claim at MCJ, id. at 44 (Thirty-Second Claim).
Stevenson is forewarned that the amended complaint may
contain only the three claims he is granted leave to amend. If
he raises any other claims in the amended complaint beyond
these three claims, those other claims will be dismissed. See
Palm Beach Strategic Income, LP v. Salzman, 457 F. App'x
40, 43 (2d Cir. 2012) (summary order) (collecting cases)
(“District courts in this Circuit have routinely dismissed
claims in amended complaints where the court granted leave
to amend for a limited purpose and the plaintiff filed an
amended complaint exceeding the scope of the permission
granted.”). Plaintiff is also forewarned that if he fails to file
an amended complaint as directed, the Complaint will be
dismissed with prejudice pursuant to 28 U.S.C. § 1915A.
ORDER
In light of the above,
IT IS HEREBY ORDERED that Plaintiff's motion to correct
the title of this action is DENIED (Dkt. 12), and the motion
to withdraw the motion for service by the United States
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Stevenson v. Schiano, Slip Copy (2025)
2025 WL 1895830
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Marshals Service (Dkt. 13) is GRANTED, and the motions
for service by United States Marshals Service (Dkt. 6 and 12)
are withdrawn without prejudice to refiling until Stevenson
files an amended complaint, and the Court screens it under 28
U.S.C. § 1915A; and it is further
ORDERED that each of the claims set forth in the Complaint
are dismissed without leave to amend under 28 U.S.C. §
1915A(b)(1)–(2), except the following, which are dismissed
with leave to amend: (1) the excessive force claim during
the course of Stevenson's arrest against Defendants Laclair,
Mandale, and Seng, Dkt. 1, at 8–9, 11 (First Claim); (2) the
excessive force claim at MCJ against Defendants Merolla,
Hahn, and Gertin, id. at 32 (Twenty-First Claim); and (3) the
procedural due process claim at MCJ, id. at 44 (Thirty-Second
Claim); and is further
ORDERED that Plaintiff is granted leave to file an amended
complaint as directed above no later than May 5, 2025 with
respect to only these three claims; and it is further
ORDERED that the Clerk of Court shall terminate
Defendants Charles A. Schiano, Jr., Jennifer Kennedy, Joseph
Damelio, J. Wallace, Donald Scott Young, Joony Odenbach,
Leticia Stacio, Todd Baxter, Sandra Doorley, James Riatto,
William Swiff, Rochester Police Department, Monroe County
District Attorney's Office, Monroe County Jail, Avangelista,
Department of Corrections, Elmira Correctional Facility, and
State of New York as parties to this action; and it is further
ORDERED that the Clerk of Court is directed to send to
Stevenson with this Decision and Order a copy of the original
complaint, a blank section 1983 complaint form, and the
instructions for preparing an amended complaint; and it is
further
ORDERED that if Plaintiff does not file an amended
complaint as directed above, the Complaint shall be dismissed
pursuant to 28 U.S.C. § 1915A(b)(1)–(2) with prejudice and
the Clerk of Court shall take all steps necessary to close this
case without further order; and it is further
*18 ORDERED that in the event the Complaint is dismissed
because Plaintiff has failed to file an amended complaint, this
Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3),
that any appeal from this order would not be taken in good
faith and leave to appeal to the Court of Appeals as a poor
person is denied. Coppedge v. United States, 369 U.S. 438
(1962). Further requests to proceed on appeal as a poor person
should be directed, on motion, to the United States Court of
Appeals for the Second Circuit, in accordance with Rule 24
of the Federal Rules of Appellate Procedure.
SO ORDERED.
All Citations
Slip Copy, 2025 WL 1895830
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Stevenson v. Schiano
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 1:23-CV-00205
Stevenson v. Schiano Jr. et al
— W.D.N.Y. Mar. 07, 2023 Docket
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Stevenson v. Schiano
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (2)
1. Stevenson v. Schiano
2025 WL 1895830 , W.D.N.Y. , Mar. 19, 2025
Appeal Filed by
2. Stevenson v. Schiano Jr.
, 2nd Cir. , July 08, 2025
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Stevenson v. Schiano
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Lawrence v. Sherman, Not Reported in Fed. Supp. (2020)
2020 WL 7029171
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 7029171
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Deon LAWRENCE, Plaintiff,
v.
Derrick SHERMAN, et al., Defendants.
1:20-CV-694 (MAD/DJS)
|
Signed 07/28/2020
Attorneys and Law Firms
DEON LAWRENCE, Plaintiff, Pro Se, Schenectady County
Jail, 320 Veeder Avenue, Schenectady, New York 12307.
REPORT-RECOMMENDATION and ORDER
DANIEL J. STEWART, United States Magistrate Judge
*1 The Clerk has sent to the Court for review a Complaint
submitted by pro se Plaintiff Deon Lawrence, asserting claims
pursuant to 42 U.S.C. § 1983, together with an application to
proceed in forma pauperis (“IFP”). Dkt. No. 1 (“Compl.”);
Dkt. No. 2 (“IFP Application”). By separate order, the Court
approved Plaintiff's IFP Application.
I. SUFFICIENCY OF THE COMPLAINT
A. Governing Legal Standard
Section 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) 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). 1 Thus, even if a plaintiff meets the financial
criteria to commence an action in forma pauperis, it is the
court's responsibility to determine whether the plaintiff may
properly maintain the complaint that he filed in this District
before the court may permit the plaintiff to proceed with this
action in forma pauperis. See id.
1 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).
Likewise, 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” 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; see also Carr v. Dvorin, 171 F.3d 115, 116
(2d Cir. 1999) (per curiam) (explaining that section 1915A
applies to all actions brought by prisoners against government
officials even when plaintiff paid the filing fee); Abbas v.
Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (stating that both
sections 1915 and 1915A are available to evaluate pro se
prisoner complaints).
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).
*2 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
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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).
B. Summary of the Complaint
Plaintiff's allegations relate to an April 2018 arrest of Plaintiff
in Schenectady, New York. Compl. at p. 1. According to
the Complaint, Plaintiff was arrested by Defendant Sherman
for failure to timely notify the New York State Division
of Criminal Justice Services of an address change. Id. at
p. 7. Plaintiff alleges that the arrest was unlawful because
Sherman “should have known that plaintiff provided his
correct registered address” as a result of his interrogation of
Plaintiff. Id. Plaintiff was subsequently indicted by a Grand
Jury. Id. He alleges the charges were ultimately dismissed in
December 2018. Id.
Plaintiff further alleges that Assistant District Attorney
Tracey Brunez of the Schenectady County District Attorney's
Office withheld exculpatory evidence related to the charges
pending against him. Id. at p. 8. Specifically, Plaintiff alleges
that an order directing production of Brady material was
deliberately ignored by Defendant Brunez. Id. Plaintiff claims
that the prosecutor, Defendant Brunez, purposely withheld
exculpatory material that would have exonerated him “from
the onset.” Id. at p. 1.
The remaining allegations in the Complaint reference the
supervisory roles of Defendants Eric Clifford, Robert Carney,
and Gary McCarthy 2 over either Defendant Sherman or
Defendant Brunez. Id. at pp. 9-13. Plaintiff alleges that these
defendants had an obligation to properly supervise and train
and that the failure to do so resulted in the injuries alleged. Id.
2 The Complaint alternatively refers to McCarthy,
who is the Mayor of the City of Schenectady, and
the City itself as Defendants. The Court's docket
identifies McCarthy as the Defendant. The Court
notes that the ensuing analysis applies the same
regardless of whether McCarthy or the City of
Schenectady was the Defendant Plaintiff wished to
name.
The Complaint asserts claims for unlawful arrest, false
imprisonment, Fourth, Eighth, and Fourteenth Amendment
violations, defamation, and emotional distress. Id. at pp. 7-8
& 15. Plaintiff claims that the prosecutor, Defendant Brunez,
purposely withheld exculpatory material that would have
exonerated him “from the onset.” Id. at p. 1.
C. Analysis of the Complaint
1. Claim Against Defendant Sherman
Plaintiff specifically alleges that Defendant Sherman is liable
for false arrest and false imprisonment. Compl. at p. 15. The
Complaint concedes that following his arrest by Sherman,
Plaintiff was indicted by a Schenectady County Grand Jury.
Id. at p. 4.
“In New York, the fact that the Grand Jury returned an
indictment against [Plaintiff] creates a presumption that his
arrest and indictment were procured with probable cause.”
Bernard v. United States, 25 F.3d 98, 104 (2d Cir. 1994).
“Probable cause is a complete defense to a constitutional
claim of false arrest, Singer v. Fulton Cty. Sheriff, 63 F.3d
110, 118 (2d Cir. 1995), and false imprisonment, Zanghi
v. Vill. of Old Brookville, 752 F.2d 42, 45 (2d Cir. 1985).”
Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014); see also
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996); Trombley
v. O'Neill, 929 F. Supp. 2d 81, 95 (N.D.N.Y. 2013); Rivas v.
Suffolk Cty., 326 F. Supp. 2d 355, 361 (E.D.N.Y. 2004). “The
plaintiff can overcome the presumption only by a showing
that the indictment was procured through fraud, perjury, the
suppression of evidence or other bad faith police conduct.”
Campanaro v. City of Rome, 999 F. Supp. 277, 281 (N.D.N.Y.
1998) (citing Bernard v. United States, 25 F.3d at 104). The
Complaint makes no allegations regarding the circumstances
of the indictment that would be sufficient to overcome this
presumption at this juncture. As a result, Plaintiff's claims
related to his arrest should be dismissed.
*3 “Ordinarily, 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)). In light of this
standard, the Court recommends that Plaintiff be afforded an
opportunity to amend the Complaint as to his claims against
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Lawrence v. Sherman, Not Reported in Fed. Supp. (2020)
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Defendant Sherman in the event that Plaintiff believes he can
allege facts that would overcome the presumption of probable
cause created by the Grand Jury's indictment.
2. Claims Against Defendants Brunez and Carney
Plaintiff claims that Brunez withheld exculpatory material
which would have established his innocence. Compl. at pp.
8-9. Prosecutors are absolutely immune from liability for
Section 1983 claims in matters involving the prosecution
of individuals. Ochoa v. Arcuri, 2005 WL 2407522, at *1
(N.D.N.Y. Sept. 29, 2005) (citing Dory v. Ryan, 25 F.3d 81, 83
(2d Cir. 1994)). “Because a prosecutor is acting as an advocate
in a judicial proceeding, the solicitation and subornation
of perjured testimony, the withholding of evidence, or the
introduction of illegally-seized evidence at trial does not
create liability in damages.” Rudaj v. Treanor, 2011 WL
13128215, at *2 (S.D.N.Y. Dec. 7, 2011) (quoting Taylor
v. Kavanagh, 640 F.2d 450, 452 (2d Cir. 1981)) (claim
seeking monetary damages against an Assistant United States
Attorney for withholding evidence was dismissed because the
prosecutor was entitled to absolute immunity).
In the present case, Brunez is shielded by absolute
prosecutorial immunity for all claims against her in her
prosecutorial capacity and from claims for damages in her
official capacity. See Fonvil v. Cty. of Rockland, 2018
WL 357309, at *2 (S.D.N.Y. Jan. 9, 2018); see also
Rudaj v. Treanor, 2011 WL 13128215, at *2. Therefore,
the Court recommends Plaintiff's claims against Brunez
be dismissed. Where the grounds for dismissal offer no
basis for curing the defects in the pleading, dismissal with
prejudice is appropriate. Kunz v. Brazill, 2015 WL 792096,
at *3 (N.D.N.Y. Feb. 25, 2015). Plaintiff cannot cure the
deficiencies identified above as to Plaintiff's claim against
Brunez and so those claims should be dismissed with
prejudice.
Defendant Carney is the Schenectady County District
Attorney and is sued for his alleged failure to properly
supervise and train Defendant Brunez. Id. at pp. 2 & 9-11.
Under certain circumstances a civil rights plaintiff may
be able to establish supervisory liability for constitutional
violations. “A necessary factor, however, of this supervisory
liability is that a constitutional violation have occurred.”
Alston v. Bendheim, 672 F. Supp. 2d 378, 388 (S.D.N.Y.
2009); see also Jackson v. Yando, 2016 WL 756540, at *5 n. 5
(N.D.N.Y. Feb. 23, 2016). Because Plaintiff cannot establish
a constitutional claim against Defendant Brunez, his claim
against Defendant Carney for failing to properly train and
supervise her “must be dismissed ... because as explained
above, there is no underlying [constitutional] violation in
the first place.” Lawrence v. Evans, 136 F. Supp. 3d 486,
491 (W.D.N.Y. 2015); see also Delaney v. Zaki, 2014 WL
4966914, at *8 (N.D.N.Y. Sept. 30, 2014) (“A complaint that
fails to state a claim for underlying unlawful conduct also fails
to state a claim against any supervisory officials named as
defendants.”).
3. Claims Against Defendants Clifford and McCarthy
*4 The remaining Defendants similarly appear to be sued in
their supervisory capacities for an alleged failure to properly
train Defendants Sherman and Brunez. Defendant Clifford is
alleged to be the Schenectady Police Chief. Compl. at p. 6.
Defendant McCarthy is the Mayor of the City of Schenectady.
Id. Both are alleged to have failed to properly train and/or
supervise Sherman. Id. at pp. 9-11.
As noted above, supervisory officials can under some
circumstances be liable for failure to properly train and
supervise subordinates. Given the recommendation that
claims against Defendant Sherman be dismissed with leave
to replead, the Court similarly recommends that the claims
against Defendants Clifford and McCarthy be dismissed with
leave to amend. If Plaintiff fails to allege facts in an amended
complaint that would overcome the presumption of probable
cause, claims against these supervisory defendants would be
subject to dismissal based on the failure to establish any
constitutional violation. Lawrence v. Evans, 136 F. Supp. 3d
at 491. If sufficient allegations to overcome that presumption
are made, Plaintiff has likely made sufficiently specific
allegations here to require a response from Defendants.
Plaintiff also alleges a claim against these Defendants under
the Eighth Amendment. Compl. at p. 15. Plaintiff specifically
alleges, however, that the charges at issue in this case were
dismissed. Id. at p. 7. Courts have consistently recognized
that “the Eighth Amendment does not apply ‘until after
conviction and sentence.’ ” Wright v. New York City, 2012
WL 4057958, at *3 (E.D.N.Y. Sept. 14, 2012) (quoting United
States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999)); see also
Lindsey v. Butler, 43 F. Supp. 3d 317, 325 (S.D.N.Y. 2014)
(“the Eighth Amendment attaches only after conviction”).
Plaintiff's allegations regarding the insufficiency of the
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Lawrence v. Sherman, Not Reported in Fed. Supp. (2020)
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investigation and prosecution, therefore, do not implicate the
Eighth Amendment and those claims should be dismissed
with prejudice.
Accordingly, the Court recommends dismissing the
remaining claims against Defendants Clifford and McCarthy
without prejudice.
II. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Plaintiff's Complaint be
DISMISSED with prejudice pursuant to 28 U.S.C. §§
1915(e) & 1915(A) for failure to state a claim upon which
relief may be granted as to claims against Defendants Brunez
and Carney and as to any claim under the Eighth Amendment;
and it is further
RECOMMENDED, that the claims against Defendants
Sherman, Clifford, and McCarthy be DISMISSED without
prejudice and that Plaintiff be granted leave to amend; and
it is
ORDERED, that the Clerk of the Court serve a copy of this
Report-Recommendation and Order upon the parties to this
action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen
(14) 3 days within which to file written objections to the
foregoing report. Such objections shall be filed with the Clerk
of the Court. FAILURE TO OBJECT TO THIS REPORT
WITHIN FOURTEEN (14) DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. 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).
3 If you are proceeding pro se and are served with
this Order by mail, three additional days will be
added to the fourteen-day period, meaning that you
have seventeen days from the date the order was
mailed to you to serve and file objections. FED. R.
CIV. P. 6(d). If the last day of that prescribed period
falls on a Saturday, Sunday, or legal holiday, then
the deadline is extended until the end of the next
day that is not a Saturday, Sunday, or legal holiday.
FED. R. CIV. P. 6(a)(1)(C).
All Citations
Not Reported in Fed. Supp., 2020 WL 7029171
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Lawrence v. Sherman
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 1:20-CV-00694
Lawrence v. Sherman et al
— N.D.N.Y. June 22, 2020 Docket
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Lawrence v. Sherman
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
History (3)
Direct History (2)
1. Lawrence v. Sherman
2020 WL 7029171 , N.D.N.Y. , July 28, 2020
Report and Recommendation Adopted by
2. Lawrence v. Sherman
2020 WL 5904789 , N.D.N.Y. , Oct. 06, 2020
Related References (1)
3. DEON LAWRENCE, Plaintiff, v. DERRICK SHERMAN, ERIC CLIFFORD, and MAYOR GARY MCCARTHY,
City of Schenectady, Defendants.
2022 WL 2817882 , N.D.N.Y. , July 18, 2022
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Everett v. Dean, Not Reported in Fed. Supp. (2023)
2023 WL 5452753
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 5452753
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Jahmier A. EVERETT, Plaintiff,
v.
Shawn DEAN and Ronald Lussi, Defendants.
3:20-CV-01260 (AMN/ML)
|
Signed August 24, 2023
Attorneys and Law Firms
JAHMIER A. EVERETT, 22-B-1079, Green Haven
Correctional Facility, P.O. Box 4000, Stormville, NY 12582,
Plaintiff, Pro Se.
HON. LETITIA JAMES, New York State Attorney General,
KOSTAS D. LERIS, ESQ., Assistant Attorney General, The
Capitol, Albany, NY 12224, Attorney for Defendants.
MEMORANDUM-DECISION AND ORDER
Anne M. Nardacci, United States District Judge:
I. INTRODUCTION
*1 On October 13, 2020, Plaintiff pro se Jahmier Everett
(“Plaintiff”) commenced this action pursuant to 42 U.S.C.
§ 1983 (“Section 1983”), alleging various constitutional,
statutory, and common law claims stemming from an
investigation and criminal charge by New York State Police
(“NYSP”) Investigator Shawn Dean and NYSP Senior
Investigator Ronald Lussi (collectively “Defendants”). See
Dkt. No. 1. This case was referred to United States
Magistrate Judge Miroslav Lovric, who, on February
26, 2021, issued an Order and Report-Recommendation
(“Report-Recommendation”), granting Plaintiff's amended
in forma pauperis (“IFP”) application, Dkt. No. 5, 1 and
recommending that Plaintiff's Fourth Amendment false
arrest and malicious prosecution claims proceed against
Defendants. See Dkt. No. 7. On March 30, 2021, the Court
adopted the Report-Recommendation in its entirety. See Dkt.
No. 10.
1 Plaintiff's initial IFP application was denied as
incomplete, and the case was administratively
closed. See Dkt. Nos. 2, 4.
On March 22, 2021, Plaintiff filed an Amended Complaint.
Dkt. No. 9. Magistrate Judge Lovric conducted a sua
sponte review and recommended that the following four
claims proceed: (1) fabrication of evidence against Defendant
Dean; (2) defamation against Defendant Dean; (3) Fourth
Amendment false arrest against Defendants; and (4) Fourth
Amendment malicious prosecution against Defendants. See
Dkt. No. 12. 2 On July 19, 2021, the Court adopted the
Report-Recommendation in its entirety, see Dkt. No. 13, and
on September 20, 2021, Defendants filed an Answer to the
Amended Complaint. See Dkt. No. 22.
2 Magistrate Judge Lovric also recommended
dismissing, with leave to replead, Plaintiff's
claim of supervisory liability against Defendant
Lussi and dismissing, without leave to replead,
Plaintiff's Amended Complaint to the extent it
alleged claims for (1) respondeat superior against
Defendant Lussi, (2) due process violations against
Defendants, (3) fabrication of evidence against
Defendant Lussi, (4) all claims against Defendants
in their official capacities, and (5) harassment
pursuant to New York state common law against
Defendants. See Dkt. No. 12 at 16.
On August 19, 2022, Defendants filed a motion for summary
judgment (“Motion”), Dkt. No. 39, and on October 20, 2022,
Plaintiff filed a Cross-Motion for summary judgment (“Cross-
Motion”) and an Opposition. Dkt. No. 50. 3 On November
4, 2022, Defendants filed an Opposition to the Cross-Motion
and a Reply to Plaintiff's Opposition. See Dkt. No. 51. For the
reasons set forth below, Defendants’ Motion is granted in its
entirety and Plaintiff's Cross-Motion is denied.
3 The Court is mindful that due to Plaintiff's
pro se status, his submissions are held “to less
stringent standards than formal pleadings drafted
by lawyers.” See Hughes v. Rowe, 449 U.S. 5, 9
(1980) (citations omitted). Therefore, the Court has
construed Plaintiff's Cross-Motion for summary
judgment as also including his Opposition to the
Motion. See Dkt. No. 50.
II. BACKGROUND 4
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4 The Court has drawn the facts stated herein
from the Amended Complaint and the parties’
submissions and the attached exhibits. See Dkt.
Nos. 9, 39, 50, 51. The Court construes the facts
relevant to each party's motion in the light most
favorable to the non-moving party.
*2 This action arises out of Plaintiff Jahmier Everett's
August 28, 2019 arrest, as a result of which he was charged
with criminal sale of a controlled substance (“CSCS”) in the
third degree under New York Penal Law § 220.39(1). 5 Dkt.
No. 9 at 4. 6 Plaintiff alleges that he “was falsely arrested
and unlawfully imprisoned” on the basis of an “illusionary
drug sale” fabricated by Defendants 7 in order to implicate
him in an unrelated homicide that occurred in Tioga County,
New York. Id. Plaintiff alleges that as a result of Defendants’
actions, he suffered “loss of wages[,] mental anguish[,]
humiliation [and] anxiety[,] and [was] displaced from his
children and loved ones.” Dkt. No. 9 at 6.
5 “A person is guilty of criminal sale of a controlled
substance in the third degree when he knowingly
and unlawfully sells ... a narcotic drug.” Reeder
v. Vine, No. 6:20-CV-06026 (EAW), 2023 WL
2044126, at *3 n.2 (W.D.N.Y. Feb. 16, 2023)
(quoting N.Y. Penal Law § 220.39(1)). This crime
is classified as a Class B felony. Id.
6 Citations to court documents, including deposition
transcripts, utilize the pagination generated by CM/
ECF, the Court's electronic filing system.
7 During the relevant time period, Defendant Dean
was employed as an Investigator, and Defendant
Lussi as a Senior Investigator, for the NYSP on
the New York State Violent Gangs and Narcotics
Enforcement Team (“VGNET”). Dkt. No. 39-5 at
¶¶ 2-3.
In May 2019, the NYSP Troop C Major Crimes Unit (“Major
Crimes”) contacted Troop C VGNET requesting that they
conduct a controlled purchase (“Controlled Purchase”). Dkt.
No. 39-5 at ¶ 4. 8 The subject of the Controlled Purchase was
Plaintiff, who also goes by the street name “Jah Diggz.” Dkt.
No. 39-2 at ¶ 7. Major Crimes contacted VGNET to conduct
the Controlled Purchase because “Plaintiff was a known drug
dealer in the Greater Binghamton Area” and the “NYSP ha[d]
information that Plaintiff has been selling narcotics in the
Greater Binghamton Area dating back to the mid-2000s.”
Dkt. No. 39-2 at ¶ 7; Dkt. No. 39-5 at ¶ 5. Defendant
Dean was the lead agent assigned to the Controlled Purchase,
and Defendant Lussi's role was to “oversee the controlled
purchase and supervise [Defendant] Dean's handling of the
case.” Dkt. No. 39-3 at ¶ 8.
8 A controlled purchase is “an undercover drug-
type operation” which typically uses a confidential
informant to complete the purchase. Dkt. No. 39-2
at ¶ 6.
At the time Major Crimes contacted VGNET, Plaintiff was
being investigated by Major Crimes for a homicide which
occurred in May 2019 in Tioga County, New York. Dkt.
No. 39-5 at ¶¶ 4, 7. Major Crimes obtained a telephone
number, (607) 232-7303 (“the telephone number”), which
was allegedly connected to the homicide, and requested
that VGNET contact this number as part of the Controlled
Purchase and verify that the telephone number belonged to
Plaintiff. Id. at ¶¶ 6-7. 9
9 Plaintiff asserts that he “never owned nor used any
device registered to (607) 232-7303.” Dkt. No. 50
at 101.
The NYSP Special Investigations Unit provided VGNET
with a confidential informant (“CI”) who “was known to have
knowledge of” Plaintiff, to conduct the Controlled Purchase.
Id. at ¶¶ 11-12. 10 In May 2019, Defendant Dean requested
that the CI contact the telephone number and arrange to
purchase crack cocaine from Plaintiff. Id. at ¶ 13. The CI
contacted the telephone number in the presence of Defendants
and arranged for a purchase of narcotics. Id. at ¶¶ 15-16. 11
The CI was searched prior to the purchase to confirm that the
CI was not in possession of any contraband, and the CI was
supplied with a recording device and cash. Id. at ¶ 18. The CI
then went with an undercover officer in an unmarked patrol
vehicle to meet Plaintiff. Id. at ¶ 19. Defendants followed
the unmarked vehicle and parked in a location where they
could not visually see the alleged transaction between the CI
and Plaintiff but could hear the entire conversation through
the recording device provided to the CI. Id. at ¶¶ 20-22. 12
After a short period of time, the CI returned to the NYSP
undercover vehicle without the cash and with drugs, which
later field tested positive for the presence of cocaine. Id. at ¶¶
23, 25-26. 13
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10 Plaintiff asserts that Defendants produced no
affirmative evidence that a CI existed and even
assuming that a CI did exist, Defendants have not
shown that the CI was credible. Dkt. No. 50 at 101.
11 Defendants submitted an unredacted photograph of
the CI's telephone for in camera inspection. Dkt.
No. 39-2 at ¶ 11 & n.2. Plaintiff submitted as
an exhibit a partially redacted photograph of the
CI's telephone, contacting “Jay” at the telephone
number to arrange for the Controlled Purchase.
Dkt. No. 50 at 97-99. While Plaintiff testified that
he also goes by the name “Jah Diggs,” see Dkt. No.
39-1 at 69:21-70:4, Plaintiff asserts that “there is no
admissible evidence to support that Plaintiff goes
by the name ‘Jay.’ This shows that this call log is
not the plaintiff.” Dkt. No. 50 at 8, 102.
12 A copy of the audio recording of the conversation
between the CI and allegedly Plaintiff was provided
to the Court for in camera inspection. See Dkt. No.
39-2 at ¶ 12.
13 Plaintiff alleges that the drug sale never occurred
and was “fabricated by [Defendant] Dean due
to the fact that [he] could not be charged with
the homicide,” and because Defendant Dean only
“listened to the conversation” instead of visually
observing it, there is no direct proof that Plaintiff
is the person on the recording. Dkt. No 50 at 3, 5,
8, 101-03.
*3 The CI was interviewed in the presence of Defendants
and provided a supporting deposition which Defendant Dean
transcribed by hand. Id. at ¶¶ 27-28. 14 The CI reviewed the
statement and signed it “verifying its authenticity.” Id. at ¶
29. 15 VGNET then alerted Major Crimes that the Controlled
Purchase was completed. Id. at ¶ 30. Major Crimes requested
that VGNET “wait to arrest [Plaintiff] until the homicide
investigation was complete,” which VGNET agreed to. Id. at
¶¶ 31-32. 16 On August 28, 2019, Plaintiff was arrested and
charged with CSCS in the Third Degree. Dkt. No. 39-4 at
¶¶ 41, 45. Defendants were not present when Plaintiff was
arrested, processed, and interviewed. Id. at ¶¶ 42, 44. Plaintiff
alleges that while he was questioned about allegations related
to being a drug dealer, he was mostly questioned about a
homicide case. Dkt. No. 50 at 2.
14 The CI's supporting deposition describes the
Controlled Purchase, including that the NYSP
asked the CI to “[b]uy crack cocaine from Jay
Diggs,” and the CI “called Jay” at the telephone
number and purchased drugs. See Dkt. No. 9
at 11-12. Plaintiff argues that Defendant Dean's
handwritten transcription and redaction of the CI's
signature makes it “impossible to verify” that the
CI existed. Dkt. No. 50 at 6. Defendant Dean
declared that it is common practice for an officer
to transcribe a CI's statement by hand so that the
CI does not inadvertently produce a handwriting
sample that could be later used for identification.
Dkt No. 39-2 at ¶ 15.
15 Defendant Dean also “logged the drugs seized from
Plaintiff after the May 2019 controlled purchase
in an NYSP evidence log,” (the “Evidence Log”)
indicating the date and time of the sale, as well as
the quantity of crack cocaine seized. Dkt. No. 39-5
at ¶¶ 33-35. Those specific details were redacted
before the Evidence Log was disclosed to Plaintiff
to protect the identity of the CI. Id. at ¶ 36.
16 In their Declarations, Defendants assert that they
agreed to wait to arrest Plaintiff because the
“statute of limitations to commence a criminal
action against Plaintiff for the May 2019 controlled
purchase was not set to expire until May of 2024.”
Dkt No. 39-2 at ¶ 18; Dkt. No. 39-3 at ¶ 16 (citing
New York Criminal Procedure Law (“N.Y. CPL”)
§ 30.10(2)(b)).
Defendant Dean, as lead agent, prepared and signed a Felony
Complaint with respect to the CSCS charge. Dkt. No. 9 at
8; Dkt. No. 39-5 at ¶ 46. 17 Additionally, an Arrest Report
was prepared and Defendants reviewed and signed the Report.
Dkt. No. 39-5 at ¶¶ 47-49. 18 Plaintiff was arraigned in
Binghamton City Court and remanded to the Broome County
Jail. Id. at ¶ 51.
17 Defendant Lussi did not prepare or sign the Felony
Complaint. Dkt. No. 39-3 at ¶ 20.
18 Plaintiff points out that the Arrest Report
contained errors, including incorrectly indicating
that Plaintiff is Hispanic and was arraigned in the
Town of Union Court, when he was arraigned in
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Binghamton City Court. Dkt. No. 39-2 at ¶ 26; Dkt.
No. 50 at 5-6, 15-16.
On September 12, 2019, Defendant Dean testified before a
Grand Jury in Tioga County regarding Plaintiff's homicide
case. Id. at ¶ 53. In the course of his testimony, Defendant
Dean testified regarding the May 2019 Controlled Purchase
and stated that the CI contacted Plaintiff using the telephone
number and subsequently purchased narcotics from Plaintiff.
Id. at ¶ 54. 19
19 Plaintiff was indicted on the homicide in Tioga
County and convicted after a jury trial of the
following charges: Murder in the Second Degree,
Burglary in the First Degree, and two counts of
Criminal Possession of a Weapon in the Second
Degree. Dkt. No. 39-5 at ¶ 56. Plaintiff was
sentenced to a term of imprisonment of twenty-
five years to life and is currently in the custody
of the Department of Corrections and Community
Supervision. Id. at ¶ 57.
*4 On March 17, 2020, Senior Assistant District
Attorney Anthony Frank (“Senior ADA Frank”) 20 dismissed
Plaintiff's CSCS charge related to the May 2019 Controlled
Purchase. Dkt. No. 39-5 at ¶ 59. Senior ADA Frank asserts
that he dismissed Plaintiff's charge for two reasons, judicial
economy and lack of a speedy trial. Dkt. No. 39-5 at ¶ 60. 21
Senior ADA Frank had received information that Plaintiff
was indicted for “charges of murder, burglary, and weapons
possession” in Tioga County, which carried significantly
greater sentences than the CSCS charge, and believed “it
was no longer in the best interest of judicial economy to
reveal the [CI] who made the controlled purchase in order
to proceed with grand jury and ultimately trial.” Id. at ¶¶
61-63. 22 Defendants were not involved in the decision to
dismiss the CSCS charge against Plaintiff. Dkt. No. 39-2 at ¶
29; Dkt. No. 39-3 at ¶ 24.
20 ADA Frank, a Senior ADA in the Broome County
District Attorney's Office Violent Crimes Bureau,
was assigned to prosecute the CSCS charge against
Plaintiff. Dkt. No. 39-5 at ¶ 58.
21 On April 19, 2021, Senior ADA Frank testified at
a pretrial suppression hearing for Plaintiff's murder
and related charges, before the Hon. Gerald A.
Keene about the reasons he dismissed the CSCS
charge against Plaintiff. Dkt. No. 39-4 at 5-9.
22 Plaintiff alleges that the charge was dropped, see
Dkt. No. 50 at 24, because the District Attorney's
Office was not able to “sustain a burden of proof
at trial ... meaning there was nothing factual to
support the allegations.” Id. at 3.
III. STANDARD OF REVIEW
Summary judgment is properly granted only if, upon
reviewing the evidence in the light most favorable to the
nonmovant, there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986); Richardson v. Selsky, 5 F.3d 616, 621
(2d Cir. 1993). A court first determines “whether the evidence
presents a sufficient disagreement to require submission to a
[factfinder] or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52 (1986). “When analyzing a summary
judgment motion, the court ‘cannot try issues of fact; it
can only determine whether there are issues to be tried.’ ”
Galeotti v. Cianbro Corp., No. 5:12-cv-00900 (MAD/TWD),
2013 WL 3207312, at *4 (N.D.N.Y. June 24, 2013) (quoting
Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36-37 (2d
Cir. 1994)).
The party seeking summary judgment “bears the burden of
establishing that no genuine issue of material fact exists and
that the undisputed facts establish [their] right to judgment
as a matter of law.” Rodriguez v. City of N.Y., 72 F.3d
1051, 1060-61 (2d Cir. 1995) (citation omitted). To determine
whether a genuine issue of material fact exists, a court must
resolve all ambiguities and draw all reasonable inferences
against the moving party. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986); accord Gibbs-
Alfano v. Burton, 281 F.3d 12, 18 (2d Cir. 2002). A “material”
fact is one that would “affect the outcome of the suit under
the governing law,” and a dispute about a genuine issue of
material fact occurs if the evidence is such that “a reasonable
[factfinder] could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248; accord R.B. Ventures, Ltd. v.
Shane, 112 F.3d 54, 57 (2d Cir. 1997). The Court should
“grant summary judgment where the nonmovant's evidence is
merely colorable, conclusory, speculative or not significantly
probative.” Schwimmer v. Kaladjian, 988 F. Supp. 631, 638
(S.D.N.Y. 1997) (citing, inter alia, Anderson, 477 U.S. at
249-50).
Here, both the Plaintiff and Defendants have moved for
summary judgment, but that phenomenon “does not mean
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that the court must grant judgment as a matter of law for
one side or the other.” Schwabenbauer v. Bd. of Ed. of City
Sch. Dist. of City of Olean, 667 F.2d 305, 313 (2d Cir.
1981); see also Residential Mgmt. (N.Y.) Inc. v. Fed. Ins.
Co., 884 F. Supp. 2d 3, 7 (E.D.N.Y. 2012) (“Cross-motions
for summary judgment do not alter the basic standard, but
simply require the court to determine whether either of the
parties deserves judgment as a matter of law on facts that are
not in dispute.”) (citations omitted). Rather, the court “must
consider each motion separately and on its own merits and
draw all reasonable inferences against the party whose motion
is under consideration.” Abreu v. Romero, No. 08 CIV. 10129
(LAP), 2010 WL 4615879, at *3 (S.D.N.Y. Nov. 9, 2010),
aff'd, 466 F. App'x 24 (2d Cir. 2012).
*5 Additionally, because Plaintiff is proceeding pro se, the
Court must “read the pleadings ... liberally and interpret them
to raise the strongest arguments that they suggest.” Corcoran
v. New York Power Auth., 202 F.3d 530, 536 (2d Cir. 1999)
(citation omitted). Nevertheless, “proceeding pro se does not
otherwise relieve [a party] from the usual requirements of
summary judgment.” Skinner v. Chapman, 680 F. Supp. 2d
470, 475 (W.D.N.Y. 2010) (quoting Fitzpatrick v. N.Y. Cornell
Hosp., No. 00 CIV. 8594 (LAP), 2003 WL 102853 at *5
(S.D.N.Y. Jan. 9, 2003)). “Those requirements include the
obligation not to rest upon mere conclusory allegations or
denials, but instead to set forth ‘concrete particulars’ showing
that a trial is needed.” Id. (quoting R.G. Group, Inc. v. Horn
& Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984)).
IV. DISCUSSION 23
23 The Court finds that Plaintiff's Cross-Motion is
procedurally deficient. See Dkt. No. 43 (deadline
for Plaintiff's response to Defendants’ Motion);
NDNY Local Rules 7.1(c) (setting filing deadlines
for a party's cross-motion), 56.1(a) (requiring a
short and concise statement of each material fact
in numbered paragraphs). However, in light of
Plaintiff's pro se status, the Court will consider the
merits of his Cross-Motion.
A. False Arrest
A Section 1983 claim for false arrest is substantially the same
as a claim for false arrest under New York law. Jenkins v. City
of N.Y., 478 F.3d 76, 84 (2d Cir. 2007). To establish a cause
of action for false arrest under New York law, a plaintiff must
show that: (1) the defendant intended to confine plaintiff; (2)
plaintiff was conscious of the confinement; (3) plaintiff did
not consent to the confinement; and (4) the confinement was
not otherwise privileged. Morales v. United States, No. 18-
CV-4247 (CBA) (RER), 2023 WL 2129580, at *4 (E.D.N.Y.
Feb. 17, 2023) (citing Broughton v. State, 37 N.Y.2d 451, 456
(1975)). 24
24 Defendants, for the purpose of this Motion only, do
not dispute that Plaintiff was intentionally confined
and that Plaintiff was conscious of and did not
consent to the confinement. Dkt. No. 39-6 at 13 n.7.
1. Probable Cause
a. Defendants’ Motion
Defendants argue that they are entitled to summary judgment
on Plaintiff's false arrest claim because “Plaintiff's [August
28, 2019] arrest was supported by probable cause.” Dkt.
No. 39-6 at 5. “The existence of probable cause to arrest
constitutes justification and is a complete defense to an action
for false arrest, whether that action is brought under state law
or under [Section] 1983.” Weyant v. Okst, 101 F.3d 845, 852
(2d Cir. 1996) (citations omitted). “Probable cause to arrest
exists when the officers have knowledge of, or reasonably
trustworthy information as to, facts and circumstances that
are sufficient to warrant a person of reasonable caution in the
belief that an offense has been or is being committed by the
person to be arrested.” Zellner v. Summerlin, 494 F.3d 344,
368 (2d Cir. 2007).
In “assessing probable cause, a court ‘must consider [only]
those facts available to the officer at the time of the arrest
and immediately before it,’ ” Sagy v. City of N.Y., No. 18-
CV-1975 (HG), 2022 WL 6777602, at *3 (E.D.N.Y. Oct. 11,
2022) (quoting Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir.
2006)) (alteration in original), and make “an objective rather
than subjective inquiry as to the ‘reasonable conclusion to be
drawn from the facts known to the arresting officer at the time
of arrest,’ ” Jenkins v. City of NY, No. 10 CIV. 4535 (AJN),
2013 WL 870258, at *6 (S.D.N.Y. Mar. 6, 2013) (quoting
Devenpeck v. Alford, 543 U.S. 146, 152 (2004)). Even when
an officer does not have a warrant when making an arrest,
“[s]uch an arrest comports with the Fourth Amendment if the
officer has ‘probable cause to believe that a criminal offense
has been or is being committed.’ ” Marcavage v. City of N.Y.,
689 F.3d 98, 109 (2d Cir. 2012) (quoting Devenpeck, 543 U.S.
at 152).
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*6 “Officers may rely on hearsay to establish probable
cause, and a court ‘may properly consider such hearsay’ at
summary judgment.” Dorsey v. Gannon, No. 20-CV-1525
(PK/CPK), 2022 WL 4660555, at *3 (E.D.N.Y. Sept. 30,
2022) (quoting Martinez v. City of N.Y., 564 F. Supp. 3d 88, 99
(E.D.N.Y. 2021)). Additionally, information from a CI “can
be sufficient to justify the existence of probable cause” unless
“the circumstances raise doubt as to the person's veracity.”
Panetta, 460 F.3d at 395 (citations omitted).
Here, Major Crimes had information that Plaintiff was a
known drug dealer in the Binghamton Area dating back to
the mid-2000s. Dkt. No. 39-2 at ¶ 7. Additionally, Defendants
were present when the CI spoke with Plaintiff using the
telephone number and arranged to purchase narcotics from
him. Dkt. No. 39-5 at ¶¶ 15-16. Defendants searched the CI
to ensure the CI was not in possession of narcotics before the
Controlled Purchase and listened to the entire conversation
between the CI and Plaintiff through the recording device
provided to the CI. Id. at ¶¶ 18, 21-22. 25 After the Controlled
Purchase, the CI returned to Defendants without money and
provided the drugs purchased, which field tested positive for
the presence of cocaine. Id. at ¶¶ 23-26. The CI was also
interviewed in the presence of Defendants and reviewed and
signed a statement verifying its authenticity. Id. at ¶¶ 27-29.
25 The Court also listened to the recording of the
transaction which was submitted for in camera
review. See supra n. 12.
The Court finds based on the totality of the circumstances
that Defendants had reasonably trustworthy information
to believe that Plaintiff knowingly and unlawfully sold
narcotics, see N.Y. Penal Law § 220.39(1), and therefore that
they had probable cause to arrest Plaintiff.
b. Plaintiff's Cross-Motion
Plaintiff in his Cross-Motion argues that he is entitled to
summary judgment on the false arrest claim because there
was no probable cause for his August 28, 2019 arrest. Each
of Plaintiff's arguments is unavailing.
Plaintiff argues that Defendants have refused to comply with
Plaintiff's “several attempts through discovery” requests to
identify the CI, and therefore Defendants are unable to “prove
that they acted on reasonable, trustworthy information.” Dkt.
No. 50 at 110. 26 Generally, the government is “entitled to
withhold the identities of its confidential informants under the
‘informer privilege.’ ” 27 United States v. Wilson, No. 5:14-
CR-0273 (GTS), 2015 WL 13215023, at *4 (N.D.N.Y. Sept.
23, 2015). Plaintiff “bears the burden of showing the need
for disclosure of [the] informant's identity, and to do so must
establish that, absent such disclosure, he will be deprived of
his right to a fair trial.” United States v. Cobb, 544 F. Supp. 3d
310, 333 (W.D.N.Y. 2021) (quoting United States v. Fields,
113 F.3d 313, 324 (2d Cir. 1997)).
26 Plaintiff also argues that Defendants’ failure to
“produce the alleged informant” violates his right
to Confrontation under the Sixth Amendment. Dkt.
No. 50 at 110. However, this argument fails because
the Confrontation Clause does not apply in civil
cases. See Marquez-Ortiz v. United States, No.
20-CV-5793 (JPO), 2023 WL 3568806, at *3
(S.D.N.Y. May 18, 2023).
27 “The law-enforcement privilege (or the informer's
privilege) permits the government ‘to withhold
from disclosure the identity of persons who
furnish information of violations of law to officers
charge[d] with enforcement of that law.’ ” Goodloe
v. City of N.Y., 136 F. Supp. 3d 283, 293 (E.D.N.Y.
2015) (quoting Roviaro v. U.S., 353 U.S. 53, 59
(1957)). The purpose is to “prevent disclosure
of law-enforcement techniques and procedures,
to preserve the confidentiality of sources, to
protect witness and law-enforcement personnel, to
safeguard the privacy of individuals involved in an
investigation, and otherwise to prevent interference
with an investigation.” Id. (quoting In re City of
N.Y., 607 F.3d 923, 941 (2d Cir. 2010)).
*7 Here, Defendants produced evidence sufficient to
demonstrate that they obtained reliable and trustworthy
information from the CI. See supra § IV(A)(1)(a).
Additionally, the Court has determined that the safety needs
of protecting the identity of the CI outweigh any of Plaintiff's
potential due process concerns. 28 See Goodloe, 136 F. Supp.
3d at 295 (finding that the law enforcement privilege applied
to disclosing information which would compromise “the
CI's safety and the continuing availability of confidential-
informant-based investigations”).
28 On September 2, 2022, Plaintiff filed a letter-
request requesting that Defendants disclose to
him a copy of the CI's telephone and audio
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recording of the alleged transaction with the
CI, which were submitted to the Court for in
camera inspection. See Dkt. No. 42. On October
12, 2022, United States District Judge Glenn T.
Suddaby found “[b]ased on the Court's in camera
inspection” and “for the reasons in Defendants’
letter-brief,” see Dkt. No. 44, that disclosure
“would be inappropriate (in that safety needs
significantly outweigh any potential due process
concerns) and that, in any event, the Court may
decide Defendants’ motion for summary judgment
without relying on those records.” See Dkt. No. 47.
Plaintiff next argues that Defendants are unable to identify
him “as the person on the recording” of the alleged drug
sale because Defendants did not observe “the alleged drug
buy” and “there is nothing in the record to establish
[that Defendants] knew [Plaintiff's] voice.” Dkt. No. 50 at
111. Information from a CI, even without officers directly
overseeing the drug sale, can support a finding of probable
cause if “it is corroborated in material respects by independent
evidence.” See United States v. Wagner, 989 F.2d 69, 72-73
(2d Cir. 1993) (noting that “[a]n informant's participation
in supervised drug purchases [was] powerful corroborative
evidence for purposes of determining probable cause.”);
United States v. Salazar, 945 F.2d 47, 50-51 (2d Cir. 1991)
(noting that a “face-to-face informant” is more reliable than
an anonymous telephone tipster); Bancroft v. City of Mount
Vernon, 672 F. Supp. 2d 391, 402 (S.D.N.Y. 2009) (finding
that “information from a single confidential informant” was
sufficient to establish probable cause when there was no
indication or evidence that the CI was not credible). Here,
there was corroborating evidence to support Defendants’
finding of probable cause, including that Defendants were
present when the CI contacted the telephone number and
arranged to buy drugs from Plaintiff, the CI subsequently
met with Plaintiff to purchase narcotics, there was an audio
recording of the Controlled Purchase, the narcotics field
tested positive for cocaine, and the CI signed and verified the
authenticity of the transcribed statement. See Dkt. No. 39-5
at ¶¶ 15-26, 29. 29
29 While the Court can decide Defendants’ Motion
without reliance on the records submitted to the
Court for in camera inspection, see Dkt. No. 47, the
Court also notes that the photographs and recording
contradict Plaintiff's arguments that the CI did not
exist and the Controlled Purchase did not occur.
Plaintiff also argues that because the charge related to the
drug sale was dismissed, it was a “sham arrest” which
was “maliciously carried out to incriminate [Plaintiff] in a
separate offense.” Dkt. No. 50 at 111. Here, Senior ADA
Frank's decision to dismiss Plaintiff's CSCS charge was based
on judicial economy and speedy trial grounds, not whether
probable cause existed at the time of Plaintiff's arrest. Dkt.
No. 39-4 at ¶ 5; Dkt. No. 39-5 at ¶ 60. The fact that
Plaintiff's case was dismissed is insufficient to establish the
absence of probable cause for his arrest. See Marshall v.
Port Auth. of New York & New Jersey, No. 19-CV2-168,
2020 WL 5633155, at *7 (S.D.N.Y. Sept. 21, 2020) (“[T]his
Court agrees with other district judges in this Circuit who
have held that dismissal of a plaintiff's case on speedy trial
grounds ‘does not affirmatively indicate his innocence, as
required under Section 1983.’ ”) (quoting Thompson v. City
of N.Y., 2019 WL 162662, at *4 (S.D.N.Y. Jan. 10, 2019) and
collecting cases); see also Drummond v. Castro, 522 F. Supp.
2d 667, 678 (S.D.N.Y. 2007) (noting that prosecutors’ “failure
to seek a grand jury indictment does not serve as evidence
against a finding that probable cause existed to arrest and
prosecute” a plaintiff). 30
30 Plaintiff also argues that Judge Keene ruled in
the Tioga County homicide case that Defendant
Dean's grand jury testimony about the drug sale
was hearsay, which is further evidence of his
“frivolous and false arrest.” Dkt. No. 50 at 111.
However, this argument is misguided because
Judge Keene's October 9, 2020 Decision and
Order, see id. at 78-79, found that although
the prosecutor introduced some hearsay through
Defendant Dean's grand jury testimony regarding
the telephone number used in the Controlled
Purchase, the prosecutor gave the grand jury
a proper limiting instruction. Id. at 78-79.
Additionally, Judge Keene's October 1, 2021
Decision and Order, see id. at 70-76, precluded
the People from presenting evidence concerning
the May 2019 Controlled Purchase because the
“prejudicial effect outweigh[ed] the probative
value.” Id. at 74.
2. Qualified Immunity
*8 Defendants further argue that even if the Court were to
find that there was not actual probable cause to arrest Plaintiff,
they are nonetheless entitled to qualified immunity on
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Plaintiff's false arrest claim. Dkt. No. 39-6 at 25-26. Plaintiff
argues in his Cross-Motion that Defendants are not entitled
to qualified immunity because they acted based on pure
speculation that Plaintiff was a drug dealer, Defendants did
not directly observe the Controlled Purchase, and Defendants
have not proven the reliability of the CI. Dkt. No. 50 at
124-27.
Qualified immunity shields government officials from
liability for money damages for violation of a right under
federal law if “their 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). It allows government officials to
make reasonable judgments and is said to protect “all but the
plainly incompetent or those who knowingly violate the law.”
Malley v. Briggs, 475 U.S. 335, 341 (1986).
“Even where actual probable cause does not exist, an officer
may be entitled to qualified immunity on a [Section] 1983
false arrest claim if his actions were objectively reasonable
or if ‘arguable probable cause’ existed at the time of the
arrest.” Triolo v. Nassau Cnty., 24 F.4th 98, 107 (2d Cir.
2022) (citing Figueroa v. Mazza, 825 F.3d 89, 100 (2d Cir.
2016)). An officer has arguable probable cause “if either
(a) it was objectively reasonable for the officer to believe
that probable cause existed, or (b) officers of reasonable
competence could disagree on whether the probable cause
test was met.” Wilson v. Town of Cheektowaga, No. 1:18-
CV-01255 (EAW), 2023 WL 1784673, at *6 (W.D.N.Y. Feb.
6, 2023) (citation omitted).
“Arguable probable cause is an ‘analytically distinct test
for qualified immunity’ that ‘is more favorable to the
officers than the one for probable cause.’ ” Reeder, 2023
WL 2044126, at *7 (quoting Escalera v. Lunn, 361 F.3d
737, 743 (2d Cir. 2004)). Whether “an officer's conduct
was ‘objectively reasonable’ ” depends on “the information
possessed by the officer at the time of the arrest,” not
“the subjective intent, motives, or beliefs of the officer.”
Amore v. Novarro, 624 F.3d 522, 536 (2d Cir. 2010) (citation
omitted). “Put another way, an arresting officer will find
protection under the defense of qualified immunity unless ‘no
reasonably competent officer’ could have concluded, based
on the facts known at the time of arrest, that probable cause
existed.” Rodriguez v. City of N.Y., 291 F. Supp. 3d 396, 409
(S.D.N.Y. 2018) (quoting Figueroa, 825 F.3d at 100).
Here, as discussed above, the Court finds that it was
objectively reasonable for Defendants to believe that probable
cause existed to arrest Plaintiff on August 28, 2019, or at the
very least for officers of reasonable competence to disagree on
whether probable cause existed to arrest Plaintiff. Therefore,
the Court finds that Defendants are entitled to qualified
immunity on Plaintiff's false arrest claim. See, e.g., Smith v.
City of N.Y., No. 04 CIV. 3286 (TPG), 2010 WL 3397683,
at *16 (S.D.N.Y. Aug. 27, 2010) (finding that a defendant
was entitled to qualified immunity for a false arrest claim
because it was objectively reasonable for defendant to arrest
the plaintiff based on a “radio communication from [another
police officer] that plaintiff had engaged in a suspected drug
transaction”) (internal citations omitted), aff'd sub nom. Smith
v. Tobon, 529 F. App'x 36 (2d Cir. 2013). Accordingly,
Defendants’ Motion as to the false arrest claim is granted and
Plaintiff's Cross-Motion is denied.
B. Malicious Prosecution
*9 Defendants next argue that Plaintiff's malicious
prosecution claim should be dismissed because there “was
probable cause to arrest Plaintiff on August 28, 2019,” and
the criminal proceeding against Plaintiff “was not instituted
with malice.” Dkt. No. 39-6 at 15. Defendants also argue that
the malicious prosecution claim should be dismissed against
Defendant Lussi because he did not commence a criminal
proceeding against Plaintiff. Id. Finally, Defendants argue that
they are entitled to qualified immunity. Id. at 25-26.
To state a claim for malicious prosecution pursuant to Section
1983, 31 a plaintiff must allege facts plausibly suggesting the
following four elements: “(1) the initiation or continuation
of a criminal proceeding against plaintiff; (2) termination
of the proceeding in plaintiff's favor; (3) lack of probable
cause for commencing the proceeding; and (4) actual malice
as motivation for defendant's actions.” Thomas v. City of
Troy, 293 F. Supp. 3d 282, 294 (N.D.N.Y. 2018) (citations
omitted). Additionally, “a plaintiff must allege a violation of
rights pursuant to the Fourth Amendment that resulted in a
sufficient ‘post-arraignment deprivation[ ] of liberty.’ ” Id.
(quoting Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 117 (2d
Cir. 1995)). 32
31 A malicious prosecution claim arising under
Section 1983 is “governed by the same standard
applied under state law.” Frederique v. Cnty. of
Nassau, 168 F. Supp. 3d 455, 477 (E.D.N.Y. 2016)
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(citing Russell v. Smith, 68 F.3d 33, 36 (2d Cir.
1995)).
32 Defendants, for purposes of this motion only,
do not dispute that Plaintiff has satisfied the
following elements of his malicious prosecution
claim: (1) Investigator Dean commenced a criminal
proceeding against him; and (2) the criminal
proceeding was terminated in Plaintiff's favor. Dkt.
No. 51 at 8 n.1.
1. Probable Cause
As with a false arrest claim, the existence of probable cause
is a complete defense to a claim of malicious prosecution.
Borges v. City of N.Y., 621 F. Supp. 3d 362, 372 (E.D.N.Y.
2022) (citing Delamota v. City of N.Y., 683 F. App'x 65, 66
(2d Cir. 2017)). “The probable cause determination relevant
to a malicious prosecution claim differs from that of a false
arrest claim only insofar as ‘the existence, or lack, of probable
cause is measured as of the time the judicial proceeding
is commenced ... not the time of the preceding warrantless
arrest.’ ” Peterson v. Regina, 935 F. Supp. 2d 628, 642
(S.D.N.Y. 2013) (quoting Mejia v. City of N.Y., 119 F. Supp. 2d
232, 254 (E.D.N.Y. 2000)). “Probable cause, in the context of
malicious prosecution, has also been described as such facts
and circumstances as would lead a reasonably prudent person
to believe the plaintiff guilty.” Boyd v. City of N.Y., 336 F.3d
72, 76 (2d Cir. 2003) (citing Colon v. City of N.Y., 60 N.Y.2d
78, 82 (1983)).
Here, as discussed above, supra § IV(A)(1), there was
probable cause to arrest Plaintiff on August 28, 2019. “Once
probable cause to arrest has been established, claims of
malicious prosecution survive only if, between the arrest and
the initiation of the prosecution, ‘the groundless nature of
the charges [is] made apparent by the discovery of some
intervening fact.’ ” Soomro v. City of N.Y., 174 F. Supp.
3d 806, 814 (S.D.N.Y. 2016) (quoting Lowth v. Town of
Cheektowaga, 82 F.3d 563, 569 (2d Cir. 1996)).
Plaintiff has not presented any facts subsequent to his
arrest which would negate that there was probable cause
for his arrest. Additionally, a reasonably prudent person
could believe that Plaintiff knowingly and unlawfully sold
narcotics. See Smith, 2010 WL 3397683, at *9 (finding that
there was probable cause to prosecute plaintiff when he did
not present facts after his arrest to “negate probable cause”
and a “a reasonably prudent person would likely believe the
plaintiff to be guilty”). 33
33 The parties have made the same arguments
regarding qualified immunity for the malicious
prosecution claim as with the false arrest claim. See
supra § IV(A)(2); Dkt. No. 39-6 at 25-26; Dkt. No.
50 at 124-27; Dkt. No. 51 at 12. A police officer
is entitled to qualified immunity on a malicious
prosecution claim if he possesses arguable probable
cause to charge the Plaintiff. See Flores v. Cnty.
of Suffolk, No. 2:16-CV-02502 (ADS) (ARL),
2018 WL 3966246, at *10 (E.D.N.Y. Aug. 17,
2018). Arguable probable cause for a malicious
prosecution claim exists “where, accounting for
any new information learned subsequent to an
arrest, ‘it was not manifestly unreasonable for [the
officer] to charge [the plaintiff]’ with the crime
in question.” Id. (quoting Jean v. Montina, 412 F.
App'x 352, 354 (2d Cir. 2011)). The Court finds that
Defendants are entitled to qualified immunity on
the malicious prosecution claim because there was
arguable probable cause to charge Plaintiff with
CSCS in the third degree.
2. Malice
*10 Plaintiff argues that Defendants initiated or continued
the prosecution against him with malice “in an effort to
link him to a cell phone that would hold him for an
investigation” in a homicide in Tioga County in order to gain
“incriminating information/evidence” against him. Dkt. No.
50 at 113. In a malicious prosecution claim, malice “can be
demonstrated ‘by proving that the prosecution complained of
was undertaken from improper or wrongful motives, or in
reckless disregard of the rights of the plaintiff.’ ” Aguirre v.
City of N.Y., No. 15-CV-6043 (PKC), 2017 WL 4236552, at
*9 n.11 (E.D.N.Y. Sept. 22, 2017) (quoting Pinsky v. Duncan,
79 F.3d 306, 313 (2d Cir. 1996)). Malice “does not have to be
actual spite or hatred but means only ‘that the defendant must
have commenced the criminal proceeding due to a wrong or
improper motive, something other than a desire to see the ends
of justice served.’ ” Guillen v. City of N.Y., 625 F. Supp. 3d
139, 156 (S.D.N.Y. 2022) (quoting Nardelli v. Stamberg, 44
N.Y.2d 500, 502-03 (1978)). 34
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34 While “actual malice and lack of probable cause are
independent elements of a malicious prosecution
claim, they do relate to one another.” Landon v.
Cnty. of Orange, No. 08-CV-8048 (CS) (LMS),
2009 WL 2191335, at *9 (S.D.N.Y. July 23,
2009); see also Lowth v. Town of Cheektowaga, 82
F.3d 563, 573 (2d Cir. 1996) (holding that, “[i]n
most cases, the lack of probable cause—while not
dispositive—tends to show that the accuser did
not believe in the guilt of the accused, and malice
may be inferred from the lack of probable cause”)
(internal quotation omitted).
Here, Plaintiff has not presented any evidence from which
a reasonable jury could conclude that Defendants acted with
improper motives in initiating a criminal proceeding against
him. Regardless of Major Crimes’ desire to verify that the
telephone number belonged to Plaintiff, Dkt. No. 39-2 at ¶
8, there was probable cause to believe Plaintiff knowingly
and unlawfully sold crack cocaine to the CI in a Controlled
Purchase that Plaintiff arranged on the telephone number. See
supra § IV(A)(1); N.Y. Penal Law § 220.39(1). Therefore,
Plaintiff is unable to establish that Defendants initiated the
prosecution against him with malice. See, e.g., Guillen, 625 F.
Supp. 3d at 156 (finding that Plaintiff's malicious prosecution
claim failed because there was probable cause and “no
evidence that the Officer Defendants had any personal animus
toward Plaintiff or that they were motivated by something
other than a desire to see the ends of justice served”) (internal
quotation marks and citation omitted). 35
35 Defendants also argue that Plaintiff is unable
to establish that Defendant Lussi commenced a
criminal proceeding against Plaintiff because he
“did not swear to or sign the felony complaint,”
see Cameron v. City of N.Y., 598 F.3d 50, 63 (2d
Cir. 2010) (Police Officers “initiate [a] prosecution
by filing charges or other accusatory instruments.”)
(citation omitted). Dkt. No. 39-6 at 16. Even
assuming the Court were to find that Defendant
Lussi initiated the criminal proceeding against
Plaintiff, Plaintiff's malicious prosecution claim
still fails because, as discussed above, see supra
§ IV(B)(1), (2), there was probable cause to arrest
Plaintiff on August 28, 2019 and Plaintiff has not
established that Defendants acted with malice when
commencing a criminal proceeding against him.
Accordingly, Defendants’ Motion as to Plaintiff's malicious
prosecution claim is granted and Plaintiff's Cross-Motion is
denied.
C. Fabrication of Evidence
Individuals have a constitutional “right not to be deprived
of liberty as a result of the fabrication of evidence by
a government officer acting in an investigatory capacity.”
Maldonado v. City of N.Y., No. 11 CIV. 3514 (RA), 2014
WL 787814, at *9 (S.D.N.Y. Feb. 26, 2014) (quoting Zahrey
v. Coffey, 221 F.3d 342, 344, 349 (2d Cir. 2000)). “When a
police officer creates false information likely to influence a
jury's decision and forwards that information to prosecutors,
he violates the accused's constitutional right to a fair trial,
and the harm occasioned by such an unconscionable action is
redressable in an action for damages under [Section 1983].”
Ricciuti v. New York City Transit Auth., 124 F.3d 123, 130 (2d
Cir. 1997) (citations omitted). The “right to a fair trial can be
violated even if the fabricated evidence that was supplied to
the prosecutor was not ultimately used at trial.” Moroughan
v. Cnty. of Suffolk, 514 F. Supp. 3d 479, 535 (E.D.N.Y. 2021)
(citing Frost v. N.Y.C. Police Dep't, 980 F.3d 231, 250 (2d Cir.
2020)).
*11 To succeed on a Section 1983 claim alleging a violation
of an accused person's right to a fair trial based on fabrication
of evidence, a plaintiff must prove that “an (1) investigating
official (2) fabricated information (3) that is likely to
influence a jury's verdict, (4) forwarded that information to
prosecutors, and (5) the plaintiff suffered a deprivation of life,
liberty, or property as a result.” Aguirre, 2017 WL 4236552,
at *10 (brackets omitted) (quoting Garnett v. Undercover
Officer C0039, 838 F.3d 265, 279 (2d Cir. 2016)). 36 A
Section 1983 claim based on the right to a fair trial does not
require that a criminal charge proceed to trial. Snead v. City
of N.Y., 463 F. Supp. 3d 386, 392 (S.D.N.Y. 2020); see also
Ricciuti, 124 F.3d at 127 (considering a Section 1983 claim for
right to a fair trial where the plaintiffs’ criminal charges were
dismissed pre-trial). “Rather, the allegedly false information
must be material such that it ‘would likely influence the jury
if it arrived at a jury.’ ” Snead, 463 F. Supp. 3d at 392 (quoting
Garnett v. Undercover Officer C0039, 2015 WL 1539044, at
*8 (S.D.N.Y. Apr. 6, 2015)).
36 Unlike false arrest and malicious prosecution
claims, the “existence of probable cause to arrest
is not a defense to a fair trial right claim.”
Cunningham v. City of N.Y., No. 17-CV-5124
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(DLC), 2018 WL 4168964, at *5 (S.D.N.Y. Aug.
30, 2018) (citation omitted).
Defendants argue that there is no “admissible evidence in
the record” to support Plaintiff's allegations that Defendant
Dean fabricated the following evidence after Plaintiff's arrest:
(1) the Evidence Log; (2) the Felony Complaint; (3) the CI's
supporting deposition; (4) the Incident Report; (5) the Arrest
Report; and (6) the VGNET Southern Tier Report Routing
Slip (“Report Routing Slip”). Dkt. No. 39-6 at 18 (citing Dkt.
No. 9 at 4-5); Dkt. No. 51 at 116-17. 37
37 Plaintiff further argues in his Cross-Motion that
Senior ADA Frank's dismissal of his charges
pursuant to N.Y. CPL § 160.50 shows that reports
which were written or signed by Defendants were
fabricated. See Dkt. No. 50 at 115-16. Plaintiff's
argument lacks merit as the dismissal of Plaintiff's
charge was based on judicial economy and lack of a
speedy trial, not whether there was probable cause
to arrest Plaintiff. See Dkt. No. 39-4 at ¶ 5.
Plaintiff argues that the Evidence Log, see Dkt. No. 9 at 15,
was fabricated because it omitted the date and time of the sale
and the amount of crack cocaine seized, see id. at 5, and the
Felony Complaint, see id. at 8, was fabricated because it does
not state the exact date or time of the alleged sale, see id. at
4. 38 Plaintiff also argues that the CI's supporting deposition,
see id. at 11-12, was fabricated because it was handwritten by
Defendant Dean and the signature was redacted. Id. at 4; Dkt.
No. 50 at 6, 118.
38 Defendants also point out that there is no
requirement in New York's Criminal Procedure
Law for the Felony Complaint to state the exact
date or time of the drug sale. Dkt. No. 39-6 at 18-19
(citing N.Y. CPL §§ 100.15, 100.40(4)).
Defendant Dean explained in his Declaration that the date
and time and quantity of crack cocaine seized was redacted
from the Evidence Log, and the exact date and time of
the Controlled Purchase was not included in the Felony
Complaint, to protect the identity of the CI. Dkt. No. 39-2 at
¶¶ 11 n.2, 20. Defendant Dean further explained, regarding
the handwritten deposition of the CI's statement, that it
“is common practice for an officer to transcribe the CI's
statement” in order to protect a CI's identity, and the CI signed
and verified the authenticity of the statement. Id. at ¶¶ 15-17.
As discussed above, see supra § IV(A)(1)(b), Defendants
were not obligated to disclose to Plaintiff information which
could identify the CI. Additionally, Plaintiff has not provided
any evidence to show that the information in the Evidence
Log, Felony Complaint, or the CI's supporting deposition was
fabricated because information was omitted or redacted to
protect the identity of the CI. See Greene v. City of N.Y.,
No. 08 Civ. 00243 (AMD) (CLP), 2017 WL 1030707, at
*25 (E.D.N.Y. Mar. 15, 2017) (granting summary judgment
on plaintiff's fair trial claim because plaintiff's claim that a
defendant falsified evidence was “sheer speculation, and [did]
not create a material issue of fact for trial”); Demosthene
v. City of N.Y, No. 14-CIV-816 (SJ) (VMS), 2018 WL
10072931, at *7 (E.D.N.Y. July 20, 2018) (finding plaintiff
did not “offer any affirmative evidence of fabrication” by
“simply point[ing] to the lack of” papers signed by the
complaining victim), report and recommendation adopted,
No. 14-CV-816 (SJ) (VMS), 2019 WL 3992868 (E.D.N.Y.
Aug. 16, 2019), aff'd, 831 F. App'x 530 (2d Cir. 2020);
Culpepper v. City of N.Y., No. 14-CV-6585 (ALC), 2016
WL 5334978, at *6 (S.D.N.Y. Sept. 21, 2016) (granting
summary judgment on fair trial claim because plaintiff
presented “only conclusory allegations to establish [that the
NYPD Detective] fabricated evidence and forwarded that
information to prosecutors”).
*12 Plaintiff argues that Defendant Dean's Incident Report,
see Dkt. No. 50 at 26-28, was fabricated because it was written
weeks after the alleged drug sale occurred, and the Incident
Report incorrectly states that Plaintiff was “arraigned in the
City of Binghamton City Court and remanded to the Broome
County Jail” on August 28, 2019, when he was actually
“remanded without bail” on August 29, 2019. Id. at 109-10,
117. Plaintiff further argues that the Arrest Report, see Dkt.
No. 9 at 13-14, and Incident Report, were fabricated because
they contained errors, including that he is Hispanic, was
arraigned in the Town of Union Court, and listed a different
cell phone number than the telephone number. Id. at 4-5; Dkt.
No. 50 at 5-6, 15, 26. Additionally, Plaintiff argues that the
Evidence Log was fabricated because it did not contain a lab
number. Dkt. No. 9 at 5; Dkt. No. 39-1 at 79:4-9. 39
39 Defendant Dean in his Declaration stated that a “lab
number was not required.” Dkt. No. 39-2 at ¶ 20.
Plaintiff argues that it “is false” that a lab number
is not required because without a lab number “it
would be impossible to keep track of evidence
collected in the process of an investigation.” Dkt.
No. 50 at 10. Plaintiff does not offer any evidence
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to support this assertion. See Fujitsu Ltd. v. Federal
Express Corp., 247 F.3d 423, 428 (2d Cir. 2001)
(to survive a motion for summary judgment, a
plaintiff “may not rely on conclusory allegations or
unsubstantiated speculation”).
The Court finds that Plaintiff has not provided any evidence
that there was a requirement for the Incident Report to be
written on the date the alleged incident occurred. See Scotto
v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (“The non-
moving party may not rely on conclusory allegations or
unsubstantiated speculation .... Instead, ‘the non-movant must
produce specific facts indicating’ that a genuine factual issue
exists.”). Additionally, given the totality of evidence, Plaintiff
has failed to show that the typographical and/or clerical errors
in the Arrest Report and Incident Report, and the exclusion
of the lab number in the Evidence Log, would influence
a jury's decision in finding that Plaintiff knowingly and
unlawfully sold narcotics under N.Y. Penal Law § 220.39(1).
See Hoyos v. City of N.Y., 999 F. Supp. 2d 375, 394 (E.D.N.Y.
2013) (finding plaintiff's “assertion that defendants falsified
evidence” of the location where he was arrested was “not
likely [to] influence a reasonable jury's decision as to whether
he [was] driving while intoxicated”); see also Snead, 463 F.
Supp. 3d at 393 (finding that even though an officer fabricated
information in the criminal complaint, the fabrication was not
likely to influence a jury's verdict).
Finally, Plaintiff argues that the Report Routing Slip, see Dkt.
No. 50 at 63, shows that the drug sale was fabricated because
it was written fifteen days after his August 28, 2019 arrest.
Dkt. No. 50 at 118-19. Plaintiff also argues that the Report
Routing Slip left the sections “Buy Sheet Packet” and “CI
Package” completely blank, which shows that “there was no
drug sale” with “an informant.” Id. at 119. Defendants in
their Reply submitted as an exhibit, a Report Routing Slip,
prepared in May 2019 after the Controlled Purchase, showing
the “CI Package” checklist as completed, which is further
evidence that a CI existed. See Dkt. No. 51-1 at 4-5.
In sum, Plaintiff has not presented sufficient evidence
to substantiate his claim that Defendant Dean fabricated
evidence. Accordingly, Defendants’ Motion as to the
fabrication of evidence claim is granted and Plaintiff's Cross-
Motion is denied.
D. Defamation
Plaintiff's state law defamation claim against Defendant Dean
alleges that Dean provided false testimony to the grand jury in
Plaintiff's homicide case in Tioga County regarding the drug
sale, which “did not occur,” and a “non-existent informant”
who contacted Plaintiff at the phone number, which was
not Plaintiff's. Dkt. No. 39-6 at 20-21 (citing Dkt. No. 9
at 5-6; Dkt. No. 39-1 at 83-84). 40 Defendants argue that
Plaintiff's defamation claim should be dismissed for four
reasons: “(1) it is time barred; (2) Investigator Dean is entitled
to absolute immunity; (3) Plaintiff's claims are barred by the
Heck doctrine; 41 and (4) there is no admissible evidence to
support Plaintiff's defamation claim.” Id. at 21.
40 Plaintiff in his Opposition and Cross-Motion also
argues for the first time that Defendant Dean
defamed him by fabricating evidence in order
to institute a criminal action against Plaintiff.
Compare Dkt. No. 9 at 5-6; with Dkt. No. 50 at
120-21. The Court agrees with Defendants that
Plaintiff cannot use his Cross-Motion to amend
his Complaint, and therefore, the Court will not
consider this argument. See Dkt. No. 51 at 11;
see also Feliz v. City of N.Y., No. 19-CV-6305
(DLC), 2023 WL 2601111, at *4 (S.D.N.Y. Mar.
22, 2023) (noting that a plaintiff may not amend a
complaint in opposing a dispositive motion). Even
if the Court were to consider Plaintiff's argument,
it is time-barred because Plaintiff concedes that
the alleged “libel” of Defendant Dean forwarding
the felony complaint “occurred weeks” before
Defendant Dean's September 12, 2019 grand jury
testimony. Dkt. No. 50 at 123. Plaintiff did not
initiate this action until October 13, 2020, more
than one year later. See Dkt. No. 1; see also
Etheredge-Brown v. Am. Media, Inc., 13 F. Supp.
3d 303, 305 (S.D.N.Y. 2014) (New York imposes
a one-year statute of limitations on defamation
claims) (citing N.Y. CPLR § 215(3)).
41 See Heck v. Humphrey, 512 U.S. 477 (1994).
*13 Defendants’ primary argument is that Defendant Dean
is entitled to absolute immunity for his grand jury testimony.
Dkt. No. 39-6 at 21-22. Plaintiff, in his Cross-Motion,
concedes that Defendant Dean's grand jury testimony was
“absolutely immune.” Dkt. No. 50 at 123. Witnesses “
‘testifying before a Grand Jury are protected by an absolute
immunity,’ just as they would if giving testimony in court.”
Stega v. New York Downtown Hosp., 31 N.Y.3d 661, 670
(2018) (quoting Toker v. Pollak, 44 N.Y.2d 211, 219-20
(1978)). The New York Court of Appeals has explained:
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[W]e have recognized the need to
shield grand jury witnesses from
liability for defamation based on their
testimony, and we have generally
observed that public officials would be
unduly deterred from the full and frank
discharge of their duties were their
false statements, made in the course
of their official functions or in judicial
proceedings, to become the source of
civil liability.
De Lourdes Torres v. Jones, 26 N.Y.3d 742, 770 (2016); see
also Rehberg v. Paulk, 566 U.S. 356, 369-74 (2012) (holding,
in the context of Section 1983, that “grand jury witnesses
should enjoy the same immunity as witnesses at trial” because
the “proper functioning of our grand jury system depends
upon the secrecy of grand jury proceedings”). Accordingly,
the Court finds that Defendant Dean's grand jury testimony
was entitled to absolute immunity.
Defendants also argue that, assuming arguendo Defendant
Dean's grand jury testimony was not entitled to absolute
immunity, Plaintiff's defamation claim fails on the merits
because “Plaintiff cannot establish that [Defendant] Dean's
[grand jury] testimony was substantially false.” Dkt. No.
39-6 at 24. “Under New York law, establishing a claim for
defamation requires a plaintiff to allege: (1) the making of a
false defamatory statement of fact; (2) that the statement was
published to a third party; (3) that the statement concerned the
plaintiff; (4) that the defendant was responsible for making the
statement; and (5) that the statement was per se defamatory, or
caused special damages.” Lader v. Delgado, 941 F. Supp. 2d
267, 271 (E.D.N.Y. 2013) (citations omitted). Truth “provides
a complete defense to defamation claims.” Cain v. Atelier
Esthetique Inst. of Esthetics Inc., 733 F. App'x 8, 11 (2d
Cir. 2018) (citing Dillon v. City of N.Y., 261 A.D.2d 34, 39
(1st Dep't 1999)); see also Printers II, Inc. v. Professionals
Publishing, Inc., 784 F.2d 141, 146 (2d Cir. 1986) (“[I]t is
not necessary to demonstrate complete accuracy to defeat a
charge of [defamation]. It is only necessary that the gist or
substance of the challenged statements be true.”).
Here, Plaintiff has not produced evidence sufficient to
demonstrate that Defendant Dean provided false grand jury
testimony. Defendant Dean testified about the May 2019
Controlled Purchase, including that the CI contacted Plaintiff
using the telephone number. Dkt. No. 39-2 at ¶ 27. Defendant
Dean also declared that his testimony was “true and accurate
based on [his] own personal knowledge.” Id. Defendants
further submitted to the Court for in camera inspection
a photograph of the CI's telephone call log and an audio
recording of the Controlled Purchase. Id. at ¶¶ 11-12.
Accordingly, the Court finds that Defendants are entitled to
summary judgment on Plaintiff's defamation claim. 42
42 Because the Court finds that Defendant Dean's
testimony is entitled to absolute immunity and
Plaintiff's defamation claim fails on the merits,
the Court does not need to address the parties’
arguments related to the Statute of Limitations and
the Heck Doctrine. Dkt. No. 39-6 at 21-23; Dkt. No.
50 at 120-23.
V. CONCLUSION
*14 Accordingly, the Court hereby
ORDERS that Plaintiff's Cross-Motion for Summary
Judgment, Dkt. No. 50, is DENIED in its entirety; and the
Court further
ORDERS that Defendants’ Motion for Summary Judgment
dismissing the Amended Complaint in its entirety, Dkt. No.
39, is GRANTED; and the Court further
ORDERS that Plaintiff's Amended Complaint, Dkt. No. 9, be
DISIMISSED in its entirety; and the Court further
ORDERS that the Clerk shall enter judgment in Defendants’
favor and close this case; and the Court further
ORDERS that the Clerk serve a copy of this Memorandum-
Decision and Order on the parties in accordance with the
Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 5452753
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Everett v. Dean, Not Reported in Fed. Supp. (2023)
2023 WL 5452753
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End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 218 of 529

Everett v. Dean
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 3:20-CV-01260
Everett v. Dean et al
— N.D.N.Y. Oct. 13, 2020 Docket
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Everett v. Dean
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
History (5)
Direct History (1)
1. Everett v. Dean
2023 WL 5452753 , N.D.N.Y. , Aug. 24, 2023 , appeal dismissed (2d Cir. 23-1343) ( Apr 04, 2024 )
Related References (4)
2. Everett v. Dean
2021 WL 765762 , N.D.N.Y. , Feb. 26, 2021
Report and Recommendation Adopted by
3. Everett v. Dean
2021 WL 3046801 , N.D.N.Y. , Mar. 30, 2021
4. Everett v. Dean
2021 WL 3038390 , N.D.N.Y. , June 02, 2021
Report and Recommendation Adopted by
5. Everett v. Dean
2021 WL 3032690 , N.D.N.Y. , July 19, 2021
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Villafane v. Sposato, Not Reported in Fed. Supp. (2017)
2017 WL 4179855
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Sankara v. City of New York, S.D.N.Y., February 22,
2018
2017 WL 4179855
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Carlos VILLAFANE, Pro Se Plaintiff,
v.
Michael SPOSATO, Nassau County Sheriff, and
Armor Correctional Health Service, Defendants.
CV 16-3674 (JFB) (AKT)
|
Signed 08/22/2017
Attorneys and Law Firms
Carlos Villafane, New York, NY, pro se.
John J. Doody, Dale Nicholson McLaren, Lewis Brisbois
Bisgaard & Smith, LLP, New York, NY, Liora M. Ben-
Sorek, Nassau County Attorney's Office, Mineola, NY, for
Defendants.
REPORT AND RECOMMENDATION
A. KATHLEEN TOMLINSON, U.S. Magistrate Judge
I. PRELIMINARY STATEMENT
*1 Pro se Plaintiff Carlos Villafane (“Villafane” or
“Plaintiff”) brings this civil rights action, pursuant to 42
U.S.C. § 1983, alleging violations of the Fifth, Eighth and
Fourteenth Amendments, as well as the Prison Litigation
Reform Act. See generally Complaint (“Compl.”) [DE 1].
Defendants Michael Sposato and Armor Correctional Health
Services of New York s/h/a Armor Correctional Health
Service (collectively, “Defendants”) have moved to dismiss
the Complaint pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure and the Prison Litigation Reform Act, 42
U.S.C. § 1997e(a). Notice of Motion [DE 19]. Judge Bianco
referred Defendants' Motion to Dismiss to this Court for a
Report and Recommendation as to whether the motion should
be granted. DE 33.
II. BACKGROUND
A. Factual Background
The following factual allegations have been taken from
Plaintiff's Complaint and the Plaintiff's Opposition to
Defendants' motion to dismiss. Because Plaintiff is
proceeding pro se, the Court is obligated to construe his
pleadings liberally “to raise the strongest arguments that they
suggest.” See Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 474–75 (2d Cir. 2006) (per curiam) (quoting Pabon v.
Wright, 459 F.3d 241, 248 (2d. Cir. 2006)) (collecting cases)
(internal quotation marks omitted). 1 All facts alleged by
Plaintiff are assumed to be true for purposes of deciding the
motion to dismiss and are construed in a light most favorable
to Plaintiff as the non-moving party. See, e.g., LaFaro v.
N.Y. Cardiothoracic Grp., 570 F.3d 471, 475 (2d Cir. 2009)
(quoting Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292,
300 (2d Cir. 2003)); Matthews v. City of N.Y., 889 F.Supp.2d
418, 425 (E.D.N.Y. 2012) (citing LaFaro, 570 F.3d at 475–
76).
1 In construing a pro se plaintiff's pleadings liberally,
“the Court may ‘consider factual allegations in
the plaintiff's opposition papers to supplement
the allegations in the complaint.’ ” Williams v.
Wellness Med. Care, P.C., No. 11-5566, 2013 WL
5420985, at *1 n.1 (S.D.N.Y. Sept. 27, 2013)
(quoting Salvatierra v. Connolly, No. 09-3722,
2010 WL 5480756 at *25 n. 3 (S.D.N.Y. Sept. 1,
2010) (internal quotation marks omitted)) (citing
Frith v. Hill, No. 07-CV-5899, 2009 WL 3073716,
at *19 n. 1 (S.D.N.Y. Sept. 23, 2009)), report
and recommendation adopted, 2011 WL 9398
(S.D.N.Y. Jan. 3, 2011); see Smolen v. Fischer,
No. 12-1856, 2012 WL 3609089, at *1 (S.D.N.Y.
Aug. 23, 2012) (citing Erickson v. Pardus, 551
U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081
(2007)) (“Although certain factual allegations in
Smolen's opposition affidavit are not contained in
the complaint, this Court will deem the complaint
amended to include those allegations since Smolen
is a pro se plaintiff.”); Sommersett v. City of
New York, 09-5916, 2011 WL 2565301, at *3
(S.D.N.Y. 2011); Green v. City of N.Y. Dep't of
Corr., No. 6-4978, 2008 WL 2485402, at *4
(S.D.N.Y. June 19, 2008); Ibok v. Sector, No.
05-6584, 2006 WL 302336, at * 1, n.1 (S.D.N.Y.
Feb. 9, 2006) (citing Fox v. Fischer, No. 04-6718,
2005 WL 1423580 at *2 n.1 (S.D.N.Y. June 14,
2005), aff'd, 242 Fed.Appx. 759 (2d Cir. 2007);
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Villafane v. Sposato, Not Reported in Fed. Supp. (2017)
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Verley v. Goord, No. 02 Civ. 1182, 2004 WL
526740, at *4–5, 2004 U.S. Dist. LEXIS 857,
at *15-17 (S.D.N.Y. Jan. 22, 2004)) (“The Court
may consider the factual allegations in plaintiff's
Response to supplement those in his complaint
because of the liberal standard afforded to the
pleadings of pro se litigants.”).
1. Plaintiff's Medical Issues
*2 On or about September 11, 2013, Plaintiff was taken to
the Nassau County Correctional Center (“NCCC”), referred
to by Plaintiff in his Complaint as the “Nassau County Jail.”
See Compl. § III.B. At that time, Plaintiff had a broken
left forearm. Id. § III.C. Despite informing the “medical
department” about his condition, Plaintiff was “neglected
intentionally without pain medication.” Id. On September 14,
2013, Plaintiff was taken to the “Nassau County University
Hospital, where the doctor had [Plaintiff] x-rayed set [his]
arm in a soft cast.” Id. A doctor advised Plaintiff that he
needed surgery and told “the officials” to bring Plaintiff back
to the hospital for surgery on September 17, 2013. Id. The
NCCC did not produce Plaintiff for the surgery on that date
and “still refused to give [Plaintiff] the said prescribed ... pain
medication.” Id.
On September 24, 2013, Plaintiff was examined at the
NCCC by a visiting orthopedist “who expressed shock” that
Plaintiff “had not received any surgery.” Id. According to
Plaintiff, the orthopedist “entered an order on my medical
chart by directing a nurse to write down that it was extremely
urgent that I have surgery.” Id. Once again, however, the
NCCC “knowingly ignored, and intentionally did denied [sic]
[Plaintiff] the proper medical procedures and also continued
to deny ... the pain medication or any type of medication
to aliviate [sic] the pain.” Id. On October 9, 2013, Plaintiff
was transported to Nassau University Medical Center where
his arm was again x-rayed. Id. The doctor told him that his
arm was in fact broken. Id. The doctor also told him that
because he had not received surgery, his arm would have to be
rebroken “and that the surgery cost too much money and the
facility wouldn't pay.” See id. Plaintiff's arm was then set in a
hard cast and Plaintiff complained again about the pain. Id.
Around the end of October 2013, Plaintiff appeared before
Judge Hurley in connection with his criminal case. See
id. Plaintiff complained to his lawyer about the NCCC's
treatment of him. Id. Plaintiff states that his lawyer spoke
to Judge Hurley and that Judge Hurley recommended that
Plaintiff “be transferred to the Metropolitan Detention Center
in Brooklyn, New York.” Id.
On November 5, 2013, Plaintiff was transferred to the
Metropolitan Detention Center (“MDC”). Id. Sometime
thereafter, MDC officials transported Plaintiff to the
“[B]rooklyn Medical Center and Kingsbrook Hospital from
2014 through 2015.” Id. At the Brooklyn Medical Center,
Plaintiff underwent the surgery that he needed—his arm was
rebroken and set with two metal plates and metal screws. Id.
According to Plaintiff, “my arm is not the same I don't have
100% use of my left wrist and my left hand and I am in
constant pain.” See id.
2. Grievances
In his Opposition to the Defendants' Motion to Dismiss,
Plaintiff states that while detained at the NCCC, he lodged
numerous complaints about his left arm as well as other
issues, through grievance forms and sick-call requests. See
Plaintiff's Opposition (“Pl's. Opp'n”) [DE 30] at 4-5. Plaintiff
represents that he could not tell what the officer wrote on
most of the complaint forms and that there were times when
the officer informed Plaintiff that he “had to sign the form
because soon [he would] be taken to the Hospital.” Id. at
4. Plaintiff further maintains that on “some of the forms the
officer wrote that the Plaintiff Refuse [sic] to sign while
writing a later date.” Id. Plaintiff asserts that those statements
are not true because he had, in fact, signed the form on an
earlier date. Id. Plaintiff points out that defendants' counsel
referred to the Prison Litigation Reform Act (“PLRA”) in the
motion papers. Id. According to Plaintiff, the PLRA “makes
it harder for prisoners to file lawsuits in federal court.” Id.
Plaintiff adds that
the fact is that the Plaintiff was
Transferred from a county holding
facility to a Federal Transcient
[sic] facility which is A different
jurisdiction, with different Rules and
Regulation, to wit your complaints
go to Washington D.C. besides your
Honor the Plaintiff was Released, he
was Free when he submitted this Law
Suits so I am Asking your Honor to
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Please don't dismiss my lawsuit Please
Allow a jury to decide.
*3 Id. at 6.
3. Claims Set forth in the Instant Action and Relief Sought
Plaintiff represents that he has filed the instant action
against Armor Correctional Health Services of New York
(“Armor”) for intentionally failing to provide him with
“prop[ ]er medical care” and against Sheriff Michael Sposato
for “allowing [Armor] to do so” and for not “monitoring
[the] medical department.” Compl. § II.D. According to
Plaintiff, Defendants' conduct constitutes violations of the
Eighth and Fifth Amendments of the Constitution, the Equal
Protection Clause and the Prison Litigation Reform Act. Id.
§ II.B. Plaintiff seeks $5,000,000 in monetary damages to
compensate him for his pain and suffering, mental anguish
and inability to have full use of his left hand. Id. § IV.
B. Procedural History
Pro se Plaintiff Villafane commenced this action by filing a
Complaint on June 24, 2016. See DE 1. By Order entered July
6, 2016, Judge Bianco who was assigned to this civil case,
granted Plaintiff's Motion for Leave to Proceed in Forma
Pauperis. DE 5. The Nassau County Attorney's Office, on
behalf of Nassau County Sheriff Michael Sposato, filed an
Answer to the Complaint on September 9, 2016. DE 12. On
October 6, 2016, the law firm of Lewis Brisbois Bisgaard
and Lewis (“Lewis Brisbois”) filed a letter application to
Judge Bianco seeking a pre-motion conference for purposes
of moving to dismiss the Complaint against Armor. DE
15. On October 12, 2016, Judge Bianco issued an Order
waiving the pre-motion conference requirement and setting a
briefing schedule on Armor's motion to dismiss. DE 16. Lewis
Brisbois filed the motion to dismiss on November 14, 2016 on
behalf of both defendants. DE 19. Pursuant to Judge Bianco's
Scheduling Order, Plaintiff's Opposition to the motion was
due to be filed by December 28, 2016, and Defendants' Reply,
by January 11, 2017. DE 16.
On December 19, 2016, Plaintiff notified the Court of a
change in his address. DE 22. Judge Bianco posted an
Electronic Order on December 23, 2017 stating that due to
Plaintiff's address change, Defendants were unable to serve
him with a copy of their motion. See 12/23/2016 Electronic
Order. Judge Bianco set a revised briefing schedule, directing
Plaintiff to file his Opposition by January 25, 2017 and
Defendants to file their Reply by February 8, 2017. Id.
On January 9, 2017, Plaintiff filed a motion for extension of
time to file his Opposition, which Judge Bianco granted. DE
26, 27. The deadline for Plaintiff to submit his Opposition
was extended to February 24, 2017. The filing date for the
Reply was extended to March 10, 2017. DE 27. On March
3, 2017, Judge Bianco issued an Order directing Plaintiff to
file his Opposition by March 20, 2017, or alternatively, to
send a letter communicating to the Court why no Opposition
had been filed. DE 28. The Court warned Plaintiff that a
failure to respond may result in dismissal of his case, with
prejudice, for failure to prosecute his claims. Id. On March
17, 2017, Plaintiff filed a letter explaining that he mailed a
copy of his Opposition to Defendants via Fedex on February
24, 2017. DE 29. Plaintiff further stated that he requested
additional time to respond to Defendants' motion so that he
could obtain medical records from two hospitals where he
received treatment. Id. Plaintiff's Opposition was filed with
the Clerk's Office on March 23, 2017. DE 30. In addition to
arguing the merits of his case, Plaintiff informed the Court
that the 87 pages of unpublished opinions provided to him by
the Defendants were not legible. Id. Plaintiff also requested
more time to respond to Defendants' Motion to Dismiss. Id.
*4 Judge Bianco issued an Order on March 23, 2017
(1) informing Plaintiff that the Court was in receipt of his
Opposition and (2) directing Defendants to file their Reply
by April 7, 2017. See DE 31. Defendants' Reply was filed on
April 3, 2017. DE 32. By Order dated April 6, 2017, Judge
Bianco referred Defendants' Motion to Dismiss to this Court
for a Report and Recommendation as to whether the motion
should be granted. DE 33.
On April 12, 2017, the Court received a letter from Plaintiff
requesting additional time to research, gather further evidence
and respond to Defendants' motion to dismiss. DE 34. The
Court directed counsel for Defendants to promptly serve
Plaintiff with new, legible copies of the unpublished opinions,
and/or opinions exclusively on computerized databases,
in accordance with Local Civil Rule 7.2. See 4/19/2017
Electronic Order. Those opinions were mailed to Plaintiff at
400-430 30 th Street, Room 3028, New York, NY 10016. See
April 28, 2017 Affidavit of Service [DE 35].
In light of Plaintiff's asserted efforts to obtain his medical
records, as set forth in his requests for additional time
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to respond to Defendants' motion, the Court issued an
Order on May 1, 2017 directing Defendants to furnish the
Court and Plaintiff with copies of various medical records
concerning the care/treatment of Plaintiff by Armor, the
NCCC, Nassau University Medical Center, the Metropolitan
Detention Center, and the Brooklyn Medical Center and/or
Kingsbrook Hospital. See DE 36.
On May 8, 2017, counsel for Defendants filed a letter
explaining that the unpublished opinions which were
previously mailed to Plaintiff had been returned to their office
by the postal service. DE 38. A copy of the envelope in
which the opinions were sent reflects two stamps—“Return
to Sender” and “Unable to Forward.” DE 38. In response
to this filing, efforts were made to set up a conference call
between counsel for the Defendants, Plaintiff and the Court.
Defendants' counsel tried reaching Plaintiff via telephone
using the number listed on the docket: (516) 244-7329.
See DE 22. Counsel was transferred to Plaintiff's voicemail.
Subsequently, on May 15, 2017, this Court's Law Clerk
called Plaintiff at the same number and was also forwarded
to Plaintiff's voicemail. At the Court's direction, the Law
Clerk left a message advising Plaintiff to contact Chambers
immediately or risk having his case dismissed. When the
Court did not receive a return call from Plaintiff, the
undersigned, along with the Law Clerk, personally called
Plaintiff on June 1, 2017 and was forced to leave a voicemail
directing Plaintiff to call Chambers immediately. By Order
dated June 19, 2017, the Court issued an Order to Show
Cause directing Plaintiff to appear on July 11, 2017 and show
cause why this case should not be dismissed for his failure to
prosecute his claims and failure to comply with the Court's
Orders. DE 39.
Plaintiff appeared before the Court at the July 11, 2017
Show Cause Hearing and provided the Court with an updated
telephone number and a corrected address. See DE 45. During
that conference, Plaintiff reiterated his request for additional
time to respond to Defendants' motion. Id. He explained to
the Court that he was in the process of obtaining medical
records from St. Barnabas Hospital as well as the minutes
from a 2013 appearance before Magistrate Judge Brown in his
criminal case. Id. The Court directed Plaintiff to send a letter
to the Court within one week of the Court's conference (1)
setting forth why he should be permitted to add information
to his response at this time, and (2) identifying the particular
documents he wishes to use and why those documents support
his claims. Id.
*5 Counsel for the defendants filed an Affidavit of Service
on July 11, 2017 stating that Plaintiff had been served by
mail with copies of the unpublished opinions at Plaintiff's
corrected address. DE 44. By letter dated July 19, 2017,
Plaintiff confirmed that he had received copies of the medical
records from the Defendants. See DE 48. In addition to
arguing the merits of his case, Plaintiff responded to the
directives given during the July 11, 2017 Show Cause
Hearing. See id. Plaintiff stated that he is once again
requesting an extension of time to supplement his Opposition
so that he may gather all of his medical records. Id. According
to Plaintiff, this process is taking him a long time because he
is representing himself and is still searching for an attorney
to assist him with his case. Id. Plaintiff referred to certain
records from St. Barnabas Hospital and explained that they
demonstrate that the injury to his left forearm occurred
sometime in “June/July or August 6th 2013.” Id. at 2. In
addition, Plaintiff is still attempting to get a copy of the
minutes from his September 11, 2013 arraignment before
Judge Brown. Id. According to Plaintiff, Judge Brown told
him “don't worry Mr. Villafane we are sending you to a
facility to [immediately] take care of your injuries.” Id.
Defendants initially providing him with illegible copies of the
unpublished opinions slowed his ability to read and research
Defendants' motion. Id. at 3
In the balance of DE 48, Plaintiff stated that (1) the
seriousness of the surgery he had on his wrist now “interferes
with the movement of his left elbow and inner forearm”;
(2) he has played the drums since age 8 or 9 and now it is
impossible for him “to play music, keep a beat or roll, my
wrist constantly goes numb and I have to keep moving it as
to get blood flow”; (3) the size of the Defendants' motions
“would take years because I have the right to read and research
every cited or uncited case ...”; (4) he has continued to look
for a lawyer and feels that “as a pro se litigant, I have been
stripped of my own defense. I am praying that this court
would allow me to continue to fight this case. My body's been
Reconstructed, I have screws on my Right knee because I
don't have no Right Knee Caps”; (5) “I also have movement
problems because of all the metal rods and screws, then I don't
have any balance or else I'll fall I just had 2 eye surgery it
isn't easy for me to run around and do all this work because I
need help going down and up the stairs. Then I had to beg for
money to get copies remember so I could put all these legal
arguments and papers together with the defendants motion to
dismiss because I didn't know the law and I had no one to help
me....” Id. at 3-5. According to the Plaintiff, the only thing he
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was still missing were the minutes of his arraignment before
Magistrate Judge Brown. Id. at 5.
On August 2, 2017, Defendants filed their Opposition to
Plaintiff's request. DE 52. Counsel urges the Court to
deny Plaintiff's request to supplement his Opposition at
this time. Id. Counsel points out that although Plaintiff
alleges Defendants are asserting that his broken left forearm
originated from a 2004 motor vehicle accident, Defendants
make no such allegation in their motion papers. Id. Instead,
Defendants state that Plaintiff arrived at the NCCC with the
broken left forearm, which Plaintiff himself concedes in his
Complaint. Id. According to Defendants, establishing that
Plaintiff's injury occurred in 2013 as opposed to during a
motor vehicle accident in 2004 “does absolutely nothing to
bolster his claim as to whether or not Armor provided him
with inadequate medical treatment.” Id. Defendants maintain
that Plaintiff is “simply employing a delay tactic to prolong
the action for as long as possible until he either finds an
attorney or the Armor defendants settle.” Id.
Having reviewed and considered Plaintiff's July 19, 2017
request, as well as Defendants' opposition, the Court is
denying Plaintiff's application to further supplement his
Opposition at this time. Plaintiff is free to continue to seek
his records from St. Barnabas Hospital. However, the Court
will not further delay the progress of this case waiting for
them. The St. Barnabas records, even assuming they show that
Plaintiff's injury originated in 2013, do not impact the issues
underlying Defendants' Motion to Dismiss.
With respect to Plaintiff's reference to the unpublished
opinions, the Court had Defendants mail legible copies to
Plaintiff on April 19, 2017. See 4/19/2017 Electronic Order.
The mailing was done on April 28, 2017. DE 35. On May
8, 2017, Defendants notified the Court that those opinions
had been returned as undeliverable. See DE 38. First the
Defendants and then the Court itself attempted to contact
Plaintiff over the course of several weeks to ensure that he had
received copies of the opinions. See DE 39. As noted, it was
not until the July 11, 2017 Show Cause Hearing that Plaintiff
provided the Court with his updated telephone number and
correct address. DE 45. Defendants mailed the unpublished
opinions to the corrected address that same day. See DE 44.
*6 In his most recent request for additional time, however,
Plaintiff fails to substantively discuss anything from those
cases which would convince the Court to further extend
the time to oppose Defendants' motion. Given all of these
factors, there is no justification for further delay. The Court is
terminating the outstanding requests that Plaintiff be provided
still more time to oppose Defendants' motion to dismiss. See
DE 29, 34, 41, 50.
III. STANDARD OF REVIEW
Defendants move for dismissal pursuant to Rule 12(b)(6).
Defendant Sposato, however, filed an Answer to Plaintiff's
Complaint on September 8, 2016, prior to filing the instant
motion. The pleadings with respect to Defendant Sposato are
therefore closed and as such his motion should have been
brought as a Motion for Judgment on the Pleadings, pursuant
to Rule 12(c). Fed. R. Civ. P. 12(c). However, the Court
applies the same standard of review when analyzing a motion
to dismiss pursuant to Rule 12(b)(6) as it does when reviewing
a motion for judgment on the pleadings pursuant to Rule
12(c). Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d
Cir. 2006) (citing Karedes v. Ackerley Group, Inc., 423 F.3d
107, 113 (2d Cir. 2005)); Stern v. City of New York, No.
12-5210, 2015 WL 918754, at *2 (E.D.N.Y. Mar. 3, 2015)
(citing Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004))
(“The same legal standard applies to a Rule 12(b)(6) motion
as a Rule 12(c) motion.”); Rubino v. Town of Babylon, No.
09-5187, 2012 WL 928252, at *1 (E.D.N.Y. Mar. 19, 2012)
(citing Livant v. Clifton, 272 Fed.Appx. 113, 115 (2d Cir.
Apr. 7, 2008); Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.
1999)) (finding that although the County filed a motion for
judgment on the pleadings pursuant to Rule 12(c) when it
had not answered the Complaint, the Court “need not decide
the issue” since the standard for Rule 12(c) and Rule 12(b)
(6) motions are the same); Transamerica Fin. Life Ins. Co.
v. Session, No. 10-1328, 2010 WL 4273294, at *2 (S.D.N.Y.
Oct. 28, 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129
S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)) (citing Hayden v.
Paterson, 594 F.3d 150, 160 (2d Cir. 2010)) (“To survive a
motion under Rule 12(c) or Rule 12(b)(6), ‘a complaint must
contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.’ ”); Scott v. J.
Anthony Cambece Law Office, P.C., 600 F.Supp.2d 479, 481
(E.D.N.Y. 2009) (citing Patel v. Contemporary Classics of
Beverly Hills, 259 F.3d 123, 126–27 (2d Cir. 2001)) (noting
that “the standard for granting a Rule 12(c) motion is identical
to that employed when analyzing a Rule 12(b)(6) motion.”).
Notwithstanding Defendant Sposato's filing of his motion
under Rule 12(b) instead of Rule 12(c), the Court will review
the motion on its merits.
In deciding a motion to dismiss pursuant to Rule 12(b)(6),
the Court must liberally construe the claims, accept all factual
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allegations in the complaint as true, and draw all reasonable
inferences in favor of the plaintiff. See Aegis Ins. Servs., Inc.
v. 7 World Trade Co., L.P., 737 F.3d 166, 176 (2d Cir. 2013)
(quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152
(2d Cir. 2002)) (internal quotation marks omitted); Grullon v.
City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (quoting
Chase Group Alliance LLC v. City of New York Department
of Finance, 620 F.3d 146, 148 (2d Cir. 2010); Harris v. City of
New York, 607 F.3d 18, 24 (2d Cir. 2010)) (citing Sims v. Blot,
534 F.3d 117, 133 (2d Cir. 2008)). The plaintiff must satisfy
“a flexible ‘plausibility standard.’ ” Iqbal v. Hasty, 490 F.3d
143, 157-158 (2d Cir. 2007), rev'd on other grounds sub nom.
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009). “[O]nce a claim has been stated adequately, it may
be supported by showing any set of facts consistent with the
allegations in the complaint.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 546, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The
Court, therefore, does not require “heightened fact pleading
of specifics, but only enough facts to state a claim to relief
that is plausible on its face.” Id. at 570, 127 S.Ct. 1955; see
Operating Local 649 Annuity Trust Fund v. Smith Barney
Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir. 2010) (quoting
Twombly, 550 U.S. at 555, 127 S.Ct. 1955) (citing Ashcroft,
556 U.S. 662, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868)
(holding that a complaint must set forth “a plausible set of
facts sufficient ‘to raise a right to relief above the speculative
level[ ]’ ”).
*7 The Supreme Court clarified the appropriate pleading
standard in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009), in which the court set forth a two-
pronged approach to be utilized in analyzing a motion to
dismiss. District courts are to first “identify[ ] pleadings that,
because they are no more than conclusions, are not entitled
to the assumption of truth.” Id. at 679, 129 S.Ct. 1937, 1949;
see id. at 678, 129 S.Ct. 1937, 1949 (quoting Twombly, 550
U.S. at 555, 127 S.Ct. 1955) (“A pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of
a cause of action will not do.’ ”). Though “legal conclusions
can provide the framework of a complaint, they must be
supported by factual allegations.” Id. at 679, 129 S.Ct. 1937,
1949. Second, if a complaint contains “well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged. The plausibility standard is not akin to
a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. at 678,
129 S.Ct. 1937, 1949 (citing Twombly, 550 U.S. at 556-57,
127 S.Ct. 1955) (internal citations omitted).
In adjudicating a Rule 12(b)(6) motion to dismiss, the Court
must limit itself to facts alleged in the complaint, which are
accepted as true; to documents attached to the complaint
as exhibits or incorporated in the complaint by reference;
to matters of which judicial notice may be taken; or to
documents whose terms and effect are relied heavily upon
in the complaint and, thus, are rendered “integral” to the
complaint. Chambers v. Time Warner, Inc., 282 F.3d 147,
152–53 (2d Cir. 2002) (quoting Brass v. American Film
Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993)); see also
ASARCO LLC v. Goodwin, 756 F.3d 191, 198 (2d Cir. 2014)
(quoting In re Thelen LLP, 736 F.3d 213, 219 (2d Cir. 2013),
certified question accepted sub nom. Thelen LLP. v. Seyfarth
Shaw LLP, 22 N.Y.3d 1017, 4 N.E.3d 359, 981 N.Y.S.2d 349
(2013), and certified question answered, 24 N.Y.3d 16, 20
N.E.3d 264, 995 N.Y.S.2d 534 (2014)).
In addition, where, as here, a plaintiff is proceeding pro se, the
complaint must be considered under a more lenient standard
than that accorded “formal pleadings drafted by lawyers.”
Bellamy v. Mt. Vernon Hosp., No. 07 Civ. 1801, 2009 WL
1835939, at *3 (S.D.N.Y. June 26, 2009) (quoting Haines v.
Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652
(1972)), aff'd, 387 Fed.Appx. 55 (2d Cir. 2010). Therefore, a
court must construe a pro se plaintiff's pleading broadly and
interpret it to raise the strongest arguments that it suggests.
See Hughes v. Rowe, 449 (U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d
163 1980) (quoting Haines v. Kerner, 404 U.S. 519, 520,
92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972)); see also Sealed
Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008)
(quoting McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.
2004); Boykin v. KeyCorp, 521 F.3d 202, 216 (2d Cir. 2008))
(holding that when a plaintiff proceeds pro se, the district
court “is obliged to construe his pleadings liberally” and
noting that “the dismissal of a pro se claim as insufficiently
pleaded is appropriate only in the most unsustainable of
cases.”). “However, mere conclusions of law or unwarranted
deductions need not be accepted.” Alston v. Sebelius, No.
13-4537, 2014 WL 4374644, at *5 (E.D.N.Y. Sept. 2, 2014)
(quoting Bobrowsky v. Yonkers Courthouse, 777 F.Supp.2d
692, 703 (S.D.N.Y. 2011)).
Although “courts generally will not accept factual allegations
raised for the first time in opposition to a motion to dismiss,
some courts have construed the mandate to read a pro se
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plaintiff's papers liberally as allowing for consideration of
such allegations.” Rolle v. Educ. Bus Transp., Inc., No.
13-1729, 2014 WL 4662256, at *9 (E.D.N.Y. Aug. 8, 2014)
(collecting cases), report and recommendation adopted by,
2014 WL 4662267 (E.D.N.Y. Sept. 17, 2014); Ibok, 2006 WL
302336, at * 1, n.1 (citing Fox v. Fischer, No. 04-6718, 2005
WL 1423580 at *2, n.1 (S.D.N.Y. June 14, 2005) aff'd, 242
Fed.Appx. 759 (2d Cir. 2007); Verley v. Goord, No. 02-1182,
2004 WL 526740, at *5 (S.D.N.Y. Jan. 22, 2004)) (“The Court
may consider the factual allegations in plaintiff's Response
to supplement those in his complaint because of the liberal
standard afforded to the pleadings of pro se litigants.”). In
the instant case, the Court, in furtherance of its obligation
to construe pro se pleadings liberally, will consider the
factual allegations set forth in Plaintiff's opposition papers to
the extent such facts are related to and consistent with his
Complaint. Rosario v. New York City, No. 12-4795, 2013 WL
2099254, at *1-2 n.1 (S.D.N.Y. May 15, 2013) (citing Braxton
v. Nichols, No. 08-8568, 2010 WL 1010001, at * 1 (S.D.N.Y.
Mar. 18, 2010); Gill v. Mooney, 824 F.2d 192, 195 (2d Cir.
1987)) (“[B]ecause [the plaintiff] is proceeding pro se, the
Court also considers factual allegations contained in [his] two
submissions in opposition to defendants' motion to dismiss,
to the extent consistent with the Complaint.”); see Harris v.
NYU Langone Med. Ctr., No. 12-0454, 2013 WL 3487032,
at *2 n.6 (S.D.N.Y. July 9, 2013) (“[B]ecause Harris is
proceeding pro se, the Court may consider factual allegations
contained in her submissions in opposition to Defendants'
motions to dismiss, to the extent they are consistent with
the [Complaint].”), report and recommendation adopted as
modified, 2013 WL 5425336 (S.D.N.Y. Sept. 27, 2013); see
also Malik v. City of New York, No. 11-6062, 2012 WL
3345317, at *5 (S.D.N.Y. Aug. 15, 2012) (collecting cases)
(“The mandate to read a pro se plaintiff's papers liberally,
however, makes it appropriate to consider factual allegations
in [the plaintiff's] opposition papers, in addition to those in
his Complaint, in resolving the motion to dismiss.”); Aponte
v. Buono, No. 11-1077, 2011 WL 6812924, at *3 (E.D.N.Y.
Dec. 28, 2011) (citing Cusamano v. Sobek, 604 F.Supp.2d
416, 461 (N.D.N.Y. 2009)); Sommersett, 2011 WL 2565301,
at *3 (quoting Milano v. Astrue, No. 05 Civ. 6527, 2007 WL
2668511, at *2 (S.D.N.Y. Sept. 7, 2007)) (“ ‘[W]here a pro
se plaintiff has submitted other papers to the Court, such
as legal memoranda, the Court may consider statements in
such papers to supplement or clarify the plaintiff's pleaded
allegations.’ ”).
*8 Here, the pro se Plaintiff raises certain allegations
for the first time in his Opposition to Defendants' motion,
which the Court will nonetheless consider since they are
related to the Complaint. However, in connection with those
allegations, Plaintiff seeks to introduce certain documents for
the Court to consider. The Court must therefore determine
whether, pursuant to Rule 12(d), Defendants' motions should
be converted to motions for summary judgment under Rule
56. See Fed. R. Civ. P. 12(d). “The district court's conversion
of a Rule 12(b)(6) motion into one for summary judgment is
governed by principles of substance rather than form.” M.J.M.
Exhibitors, Inc. v. Stern (In re G. & A. Books. Inc.), 770 F.2d
288, 295 (2d Cir. 1985). “The essential inquiry in determining
whether it is appropriate to convert a motion [to dismiss] into
a motion for summary judgment is ‘whether the non-movant
should reasonably have recognized the possibility that the
motion might be converted into one for summary judgment
or was taken by surprise and deprived of a reasonable
opportunity to meet facts outside the pleadings.’ ” Costor v.
Sanders, No. 07-11311, 2009 WL 1834374, at *2 (S.D.N.Y.
June 16, 2009) (quoting Krijn v. Pogue Simone Real Estate
Co., 896 F.2d 687, 689 (2d Cir. 1990)); accord Glover v.
Greenman, No. 11-9122, 2013 WL 1294698, at *3 (S.D.N.Y.
Apr. 1, 2013). “Resolution of this issue will necessarily
depend largely on the facts and circumstances of each case.”
M.J.M. Exhibitors, 770 F.2d at 295 (citing Dayco Corp. v.
Goodyear Tire & Rubber Co., 523 F.2d 389, 393 (6th Cir.
1975))
“Ordinarily, formal notice is not required where a party should
reasonably have recognized the possibility that the motion
might be converted into one for summary judgment and
was neither taken by surprise nor deprived of a reasonable
opportunity to meet facts outside the pleadings.” Hernández
v. Coffey, 582 F.3d 303, 307 (2d Cir. 2009) (quoting Villante
v. Dep't of Corrections of City of New York, 786 F.2d
516, 521 (2d Cir. 1986)) (brackets and quotation marks
omitted); see Sira v. Morton, 380 F.3d 57, 68 (2d Cir. 2004)
(quoting Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir.
1999)) (“A party is deemed to have notice that a motion
may be converted into one for summary judgment if that
party ‘should reasonably have recognized the possibility’
that such a conversion would occur.”). However, where,
as here, the non-movant is proceeding pro-se, “[n]otice is
particularly important because the pro se litigant may be
unaware of the consequences of his failure to offer evidence
bearing on triable issues. Accordingly, pro se parties must
have unequivocal notice of the meaning and consequences
of conversion to summary judgment.” Hernández, 582 F.3d
at 307-08 (quoting Beacon Enters., Inc. v. Menzies, 715 F.2d
757, 767 (2d Cir. 1983)); accord Parada v. Banco Indus.
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De Venezuela, C.A., 753 F.3d 62, 68 (2d Cir. 2014) (citing
Hernández, 582 F.3d at 307).
Rule 12.1 of the Local Civil Rules of the United States
District Courts for the Eastern and Southern Districts of New
York (“Local Civil Rule 12.1”) provides, in relevant part, as
follows:
A represented party moving ... for
judgment on the pleadings against a
party proceeding pro se, who refers
in support of the motion to matters
outside the pleadings as described in
Fed. R. Civ. P. 12(b) or 12(c), shall
serve and file the ... notice [provided
therein] with the full text of Fed. R.
Civ. P. 56 attached at the time the
motion is served. If the Court rules that
a motion to dismiss or for judgment
on the pleadings will be treated as
one for summary judgment pursuant
to Fed. R. Civ. P. 56, and the movant
has not previously served and filed the
notice required by this rule, the movant
shall amend the form notice to reflect
that fact and shall serve and file the
amended notice within fourteen days
of the Court's ruling.
Local Civil Rule 12.1. Courts in this district have held that
notice pursuant to Local Civil Rule 12.1 provides sufficient
notice to pro se parties that a motion to dismiss may be
converted to a motion for summary judgment. See Wiggins
v. Figueroa, No. 13-1731, 2015 WL 729730, at *1 (E.D.N.Y.
Feb. 18, 2015) (citing Hernández, 582 F.3d at 308 n.2);
Lawrence v. Sharkey, No. 13-173, 2015 WL 2213274, at *3
(E.D.N.Y. May 8, 2015); accord Loccenitt v. City of New York,
No. 10-8319, 2012 WL 5278553, at *3 (S.D.N.Y. Oct. 22,
2012) (citing Goodwin v. Solil Mgmt. LLC, 10-5546, 2012
WL 1883473, at *2 (S.D.N.Y. May 22, 2012)) (“Courts in this
district have concluded that a notice pursuant to Local Civil
Rule 12.1 suffices to satisfy the requirement that parties be
afforded a chance to offer affidavits and other evidence.”).
*9 Ultimately, “[a] party cannot complain of lack of a
reasonable opportunity to present all material relevant to a
motion for summary judgment when both parties have filed
exhibits, affidavits, counter-affidavits, depositions, etc. in
support of and in opposition to a motion to dismiss [or for
judgment on the pleadings]....” M.J.M. Exhibitors, 770 F.2d at
295 (citation omitted); see also Reliance Ins. Co. v. Polwision
Corp., 474 F.3d 54, 57 (2d Cir. 2007) (finding that it was
not error for the district court to consider evidence outside
of the complaint in resolving a Rule 12(c) motion “without
explicitly giving notice that it was converting the Rule 12
motion to a Rule 56 motion[,]” because it was “clear from the
record ... that [the non-moving party] knew additional factual
considerations were being considered and, in fact, responded
with its own evidentiary submissions”); Sira, 380 F.3d at 68
(“By attaching to their motion extensive materials that were
not included in the pleadings, defendants plainly should have
been aware of the likelihood of such a conversion.”). Thus,
a party who relies on extrinsic material to oppose the motion
cannot later claim “that they were deprived of an adequate
opportunity to provide the materials they deemed necessary to
support or respond to the motion.” Soller, 2015 WL 500492,
at *8 (citing Sira, 380 F.3d at 68).
Here, Defendants have not requested that their motion be
converted to one for summary judgment and thus have
not provided the Plaintiff with a Local Civil Rule 12.1,
which is unnecessary here. Since Plaintiff is proceeding
pro se, the Court will not assume that his submission
of extrinsic materials constitutes proof that Plaintiff is
aware of the summary judgment process and the potential
consequences of conversion. See Hernández, 582 F.3d at
307-308 (citing Beacon Enters., Inc. v. Menzies, 715 F.2d
757, 767 (2d Cir. 1983)) (declining to convert the defendants'
motion to dismiss to one for summary judgment where
the plaintiff submitted “extensive affidavits with supporting
documents addressing exhaustion.”). For these reasons,
the Court declines to convert Defendants' motion to one
for summary judgment. See Environmental Servs., Inc. v.
Recycle Green Servs., 7 F.Supp.3d 260, 270 (E.D.N.Y. 2014)
(quoting Carione v. United States, 368 F.Supp.2d 186, 191
(E.D.N.Y. 2005) (citations omitted)) (“Federal courts have
‘complete discretion to determine whether or not to accept the
submission of any material beyond the pleadings’ offered in
conjunction with a Rule 12(b)(6) motion, and thus complete
discretion in determining whether to convert the motion
to one for summary judgment.”) (internal quotation marks
omitted). For purposes of judicial economy, and in fairness to
the Plaintiff, the Court will treat the motion to dismiss brought
by Defendants as a motion to dismiss under Fed. R. Civ. P.
12(b)(6).
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IV. DISCUSSION
A. Exhaustion of Administrative Remedies
1. Legal Standard Under the PLRA
The PLRA provides in relevant part that “[n]o action shall
be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). “The PLRA exhaustion
requirement ‘applies to all inmate suits about prison life,
whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some
other wrong.’ Prisoners must utilize the state's grievance
procedures, regardless of whether the relief sought is offered
through those procedures.” Espinal v. Goord, 558 F.3d 119,
124 (2d Cir. 2009) (citation omitted) (quoting Booth v.
Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958
(2001)).
In finding that the PLRA applies to all inmate actions
concerning prison life, see Porter v. Nussle, 534 U.S. 516,
532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002), the Supreme
Court “did not distinguish between pretrial and post-trial
detainees.” United States v. Khan, 540 F.Supp.2d 344, 349
(E.D.N.Y. 2007) (citing Porter, 534 U.S. at 532, 122 S.Ct.
983; George v. Morrisson-Warden, No. 6-3188, 2007 WL
1686321 (S.D.N.Y. 2007)); Baez v. Parks, No. 02-5821,
2004 WL 1052779, at *5 (S.D.N.Y. May 11, 2004) (citing
United States v. Al–Marri, 239 F.Supp.2d 366, 367–68
(S.D.N.Y. 2002); Rivera v. State of New York, No. 96 Civ.
7697, 1999 WL 13240, at *4–5 (S.D.N.Y. Jan. 12, 1999);
Samuels v. Jackson, No. 97 Civ. 2420, 1999 WL 92617,
at *2 n.3 (S.D.N.Y. Feb. 22, 1999)) (“[T]he PLRA's strict
exhaustion requirement does indeed apply in actions brought
by pretrial detainees.”). As such, similar to a convicted
prisoner, a pre-trial detainee is generally required to exhaust
his administrative remedies prior to filing an action in federal
court. See Baez, 2004 WL 1052779, at *5 (citing Porter, 534
U.S. at 532, 122 S.Ct. 983).
*10 Although the language of Section 1997(e)(a) is
mandatory, the “edict contains one significant qualifier: the
remedies must indeed be ‘available’ to the prisoner.” Ross v.
Blake, ––– U.S. ––––, 136 S.Ct. 1850, 1856, 195 L.Ed. 2d 117
(2016); Riles v. Buchanan, 656 Fed.Appx. 577, 580 (2d Cir.
2016) (“As the Supreme Court recently made clear in holding
that courts may not excuse a prisoner's failure to exhaust
because of ‘special circumstances,’ ‘mandatory exhaustion
statutes like the PLRA establish mandatory exhaustion
regimes, foreclosing judicial discretion.’ ”). “[A]side from
that exception, the PLRA's text suggests no limits on an
inmate's obligation to exhaust—irrespective of any ‘special
circumstances.’ ” Ross, 136 S.Ct. at 1856. The Second Circuit
has held that “[a]n administrative procedure is unavailable
when: (1) ‘it operates as a simple dead end—with officers
unable or consistently unwilling to provide any relief to
aggrieved inmates’; (2) it is ‘so opaque that is becomes,
practically speaking, incapable of use’; or (3) ‘prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.’ ” Riles, 656 Fed.Appx. at 580 (quoting Ross,
136 S.Ct. at 1859-60).
Despite the PLRA's strict application, the Supreme Court has
made clear that prisoners “are not required to specially plead
or demonstrate exhaustion in their complaints.” Jones v. Bock,
549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).
Rather, “failure to exhaust is an affirmative defense under
the PLRA” that must be raised and proven by defendants.
Id. “Dismissal under Rule 12(b)(6) for failure to exhaust
is thus appropriate only where nonexhaustion is apparent
from the face of the complaint.” Roland III v. Smith, 907
F.Supp.2d 385, 388 (S.D.N.Y. 2012) (citing McCoy v. Goord,
255 F.Supp.2d 233, 251 (S.D.N.Y. 2003)); see Jandres v.
Armor Health Care Inc., No. 12-3132, 2014 WL 1330655,
at *4 (E.D.N.Y. Mar. 31, 2014); see also Barrett v. Armor
Corr. Health, Inc., No. 13-1063, 2014 WL 1220756, at *5
(E.D.N.Y. Mar. 20, 2014) (quoting Rivera v. Anna M. Kross
Ctr., No. 10-8696, 2012 WL 383941, at *2 (S.D.N.Y. Feb.
7, 2012)) (citing Butler v. Suffolk Cnty., 289 F.R.D. 80, 92
(E.D.N.Y. 2013)).
2. Application to the Facts
Defendants argue that the Complaint must be dismissed on
the grounds that “there is no allegation or any indication
that [Plaintiff] brought his complaints to the attention of
NCCC officials that would have afforded them the time and
opportunity to address them.” Armor Correctional Health
Services of New York, Inc. and Sheriff Michel Sposato's
Memorandum of Law in Support of their Motion to Dismiss
the Complaint (“Defs.' Mem.”) [DE 19-2] at 10. In opposing
the motion, Plaintiff states that while at the NCCC, he
filed grievance forms and sick call requests in which he
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complained about his arm as well as other issues. Pl's. Opp'n
at 4. Plaintiff explained that he could not figure out what the
officer wrote on most of the complaint forms and there were
times when the officer informed Plaintiff that he “had to sign
the form because soon [he would] be taken to the Hospital.”
Id. at 3. Sometimes the officer would write on the form a
note that Plaintiff refused to sign it when, in fact, Plaintiff had
signed the form on an earlier date. Id. Moreover, in connection
with his discussion of the PLRA and his efforts to comply
with it, Plaintiff stated that he was transferred from a “county
holding facility” to a “federal trans[ ]ient facility, which is a
different jurisdiction, with different rules and regulations.” Id.
In their Reply, Defendants argue that Plaintiff's Opposition
fails to set forth a “meaningful rebuttal to the Defendants'
position.” Reply Memorandum of Law in Further Support
of the Defendant's Motion to Dismiss the Complaint
(“Defs.' Reply”) [DE 32] at 2. Defendants reject what they
characterize as Plaintiff's attempt to attribute any deficiencies
under the PLRA to his being transferred to a different
facility. See id. at 2. They point out that Plaintiff, by
his own “admission,” arrived at the NCCC on September
11, 2013, and was not transferred to another facility until
November 5, 2013. Id. Based on this timeline, Defendants
argue that Plaintiff had approximately two months to file a
grievance and any subsequent appeal. Id. They further note
that Plaintiff does not challenge the three-tiered prisoner
grievance procedure utilized by the NCCC which is set out in
detail in Defendants' opening papers. Id. at 3.
*11 As discussed above, Plaintiff is not required to plead
specific facts in the Complaint setting forth exhaustion.
Jones, 549 U.S. at 216, 127 S.Ct. 910; Roland v. Smith,
907 F.Supp.2d 385, 388 (S.D.N.Y. 2012) (“inmates are
not required to specially plead or demonstrate exhaustion
in their complaints.”). Therefore, to the extent Defendants
seek dismissal on the grounds that Plaintiff does not allege
that he exhausted the administrative remedies available to
him, that argument is unavailing. Dismissal is “appropriate
only where nonexhaustion is apparent from the face of the
complaint.” Zamani v. Nassau Cty., No. 14-5606, 2015 WL
9943257, at *3 (E.D.N.Y. Dec. 16, 2015) (quoting Roland
v. Smith, 907 F.Supp.2d 385, 388 (S.D.N.Y. 2012)) (citing
Cephas v. Nassau Cty. Corr. Ctr., No. 12-CV-1445, 2014
WL 537576, at *4 (E.D.N.Y. Feb. 10, 2014)) (rejecting
defendants' argument that the plaintiff “failed to exhaust
his administrative remedies in that there is no indication
or allegation that plaintiff undertook any further action
to complain of or appeal any dissatisfaction with any of
[his grievances]....”) (internal quotation marks omitted),
report and recommendation adopted, No. 14-5606, 2016
WL 393934 (E.D.N.Y. Jan. 28, 2016). Non-exhaustion has
been deemed to be apparent from the face of a Complaint
where, for example, the plaintiff explicitly alleged that his
grievance was under review by Internal Affairs at the time
the Complaint was filed, Joseph v. Nassau Cty. Corr. Facility,
No. 15-7010, 2016 WL 3033725, at *4 (E.D.N.Y. May 26,
2016), or where the Court determined, through a review of
exhibits attached to the plaintiff's Complaint, that the plaintiff
failed to properly appeal the outcome of his grievances in
accordance with the facility's protocol—the “plaintiff either
accepted the grievance coordinator's decision and did not
appeal, or refused to sign the reviewed grievance forms and
did not appeal.” Young v. Sposato, No. 12-2850, 2014 WL
109083, at *7 (E.D.N.Y. Jan. 13, 2014).
Unlike the circumstances in Joseph and Young, the Court
finds here that here non-exhaustion is not apparent from
the face of Plaintiff's Complaint. At no point does Plaintiff
affirmatively state in any of his submissions “that he failed
to follow all the required grievance procedures.” Randolph
v. N.Y.C. Dep't of Corr., No. 05-8820, 2007 WL 2660282,
at *7 (S.D.N.Y. Sept. 7, 2007), report and recommendation
adopted, No. 14-06468, 2016 WL 680822 (S.D.N.Y. Feb.
18, 2016); see, e.g., Groenow v. Deputy Warden of OBCC
Williams, No. 13-3961, 2014 WL 941276, at *4 (S.D.N.Y.
March 11, 2014). In fact, Plaintiff makes no mention in
his Complaint of the NCCC's grievance procedure or his
compliance with it, likely because the standardized 42 U.S.C.
Section 1983 complaint form utilized by pro se plaintiffs like
Mr. Villafane do not prompt the individual to discuss his
efforts to exhaust administrative remedies. It is not until his
Opposition that Plaintiff asserts he filed grievance forms and
sick call requests while detained at the NCCC. Pl's. Opp'n at
4. Plaintiff states that (1) he often could not read what the
officers wrote on the forms, (2) officers told him he had to
sign the forms since he would be taken to a hospital, and
(3) officers sometimes indicated on the form that Plaintiff
refused to sign when, according to Plaintiff, he actually did.
Id. “Where a prisoner indicates that he has taken some steps
toward exhaustion, district courts will normally not infer from
his silence that he failed to take the remaining steps that full
exhaustion would require.” Huggins v. Schriro, No. 14-6468,
2015 WL 7345750, at *3 (S.D.N.Y. Nov. 19, 2015) (citing
Rodriguez v. Warden, Metropolitan Correctional Facility,
No. 13-3643, 2015 WL 857817 at *3–4 (S.D.N.Y. Feb. 27,
2015); Randolph, 2007 WL 2660282, at *8; Groenow, 2014
WL 941276, at *3 (S.D.N.Y. March 11, 2014)); id. (quoting
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Wesley v. Muhammad, No. 05-5833, 2008 WL 123812, at
*3 (S.D.N.Y. Jan. 10, 2008)), report and recommendation
adopted, 2008 WL 236974 (S.D.N.Y. Jan. 28, 2008)(“ ‘[A]
pro se plaintiff's pleading references to various efforts that he
has made to bring alleged prison violations to the attention
of the prison authorities cannot be treated as tantamount to
an admission that he had not exhausted his remedies.’ ”); but
see Ghee v. Warden Ramos, No. 13-632, 2013 WL 7018543,
at *1–2 (S.D.N.Y. Dec. 4, 2013) (dismissing the plaintiff's
complaint where he left blank a section of the form complaint
that set forth the following: “[w]hat steps, if any, did you take
to appeal that decision? Describe all appeals to the highest
level of the grievance process[ ]”).
*12 Moreover, according to Plaintiff, he was instructed
to sign a complaint form so that he would be taken to a
hospital. Accepting this allegation as true, which the Court
must do at this juncture, it is not unreasonable to infer that
Plaintiff's request to be taken to a hospital was accepted.
Where a grievance is decided in an inmate's favor, but the
facility fails to implement the administrative decision and
there is no means of appealing that failure, then the inmate
is deemed to have fully exhausted his or her remedies for
purposes of the PLRA. See Abney v. McGinnis, 380 F.3d 663,
669 (2d Cir. 2004) (collecting cases). Plaintiff's allegations
raise questions that cannot be answered at this stage with an
undeveloped record. See Cephas, 2014 WL 537576, at *4
(quoting Gaines v. Armor Health Care, Inc., No. 12-5663,
2013 WL 6410311, at *3 (E.D.N.Y. Dec. 9, 2013)) (“Inquiries
regarding exhaustion ... ‘typically cannot be determined on an
undeveloped record.’ ”). In light of the foregoing analysis, the
Court finds that dismissal on the grounds of non-exhaustion
is inappropriate at this time. See Jandres, 2014 WL 1330655,
at *4; Joseph, 2016 WL 3033725, at *4 (citing McCoy v.
Goord, 255 F.Supp.2d 233, 249 (S.D.N.Y. 2003)) (“Where
non-exhaustion is not clear from the face of the complaint, a
defendant's motion to dismiss pursuant to 12(b)(6) is not an
appropriate vehicle.”)
B. Plaintiff's Claims Arising Under 42 U.S.C. Section
1983
Section 1983 provides as follows:
Every person who, under color of any
statute, ordinance, regulation, custom,
or usage, of any State ... subjects, or
causes to be subjected, any citizen of
the United States ... to the deprivation
of any rights, privileges, or immunities
secured by the Constitution and laws,
shall be liable to the party injured ...
42 U.S.C. § 1983. To state a claim under Section 1983, a
plaintiff must “ ‘allege that (1) the challenged conduct was
attributable at least in part to a person who was acting under
color of state law and (2) the conduct deprived the plaintiff
of a right guaranteed under the Constitution of the United
States.’ ” Rae v. Cty. of Suffolk, 693 F.Supp.2d 217, 223
(E.D.N.Y. 2010) (quoting Snider v. Dylag, 188 F.3d 51, 53
(2d Cir. 1999)); see Corneio v. Bell, 592 F.3d 121, 127 (2d
Cir. 2010) (quoting Pitchell v. Callan, 13 F.3d 545, 547 (2d
Cir. 1994)). Section 1983 does not create any independent
substantive rights but rather is a vehicle to “redress ...
the deprivation of [federal] rights established elsewhere.”
Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999) (citing
City of Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct.
2427, 85 L.Ed.2d 791 (1985), abrogated on other grounds
recognized by Collins v. City of San Diego, 841 F.2d 337 (9th
Cir. 1988); Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993)). In
addition, as discussed in greater detail below, it is well-settled
in this Circuit “that personal involvement of defendants in
alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983.” Farid v. Ellen, 593 F.3d
233, 249 (2d Cir. 2010) (quoting Farrell v. Burke, 449 F.3d
470, 484 (2d Cir. 2006)); see Pettus v. Morgenthau, 554 F.3d
293, 300 (2d Cir. 2009).
1. Section 1983 Claims against Defendant
Sposato in his Individual Capacity
Plaintiff sets forth a single allegation concerning Defendant
Michael Sposato, the Nassau County Sheriff. In the section
of Plaintiff's form Complaint entitled “Basis for Jurisdiction,”
when prompted to discuss how each defendant acted under
color of state or local law, Plaintiff responded “Armor by
denying me prop[ ]er medical care intentionally the sheriff
by allowing them to do so, and by not monitoring its medical
Dept.” Compl. § II.D. Plaintiff does not mention Defendant
Sposato in either his “Statement of Claim,” see id. § III, or his
Opposition papers. See generally, Pl's. Opp'n.
At the outset, the Court notes that a supervisory official
like Sheriff Sposato will not be found liable under Section
1983 simply by virtue of his “high position of authority.”
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Whitenack v. Armor Med., No. 13-2071, 2014 WL 5502300,
at *5 (E.D.N.Y. Oct. 30, 2014) (quoting Al–Jundi v. Estate
of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989)) (citing
Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d
107, 127 (2d Cir. 2004)) (internal quotation marks omitted);
see Morgan v. Dzurenda, No. 14-966, 2015 WL 5722723,
at *6 (D. Conn. Sept. 19, 2015) (citing Ayers v. Coughlin,
780 F.2d 205, 210 (2d Cir. 1985)) (“Supervisory officials
cannot be held liable under section 1983 solely for the
acts of their subordinates.”). Rather, liability may generally
only be predicated upon the individual defendant's personal
involvement in the purported constitutional violation. See
Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 229 (2d
Cir. 2004) (citing Back v. Hastings on Hudson Union Free
School District, 365 F.3d 107, 122 (2d Cir. 2004)); Morgan,
2015 WL 5722723, at *6 (citing Colon, 58 F.3d at 873). A
complaint asserting a § 1983 claim which does not allege
facts establishing the requisite personal involvement “fails as
a matter of law.” Gaines, 2013 WL 6410311, at *3 (citing
Costello v. City of Burlington, 632 F.3d 41, 48–49 (2d Cir.
2011)).
*13 According to the Second Circuit in Colon v. Coughlin,
personal involvement may be found when:
(1) the defendant participated directly
in the alleged constitutional violation,
(2) the defendant, after being informed
of the violation through a report or
appeal, failed to remedy the wrong,
(3) the defendant created a policy or
custom under which unconstitutional
practices occurred, or allowed the
continuance of such a policy or
custom, (4) the defendant was grossly
negligent in supervising subordinates
who committed the wrongful acts, or
(5) the defendant exhibited deliberate
indifference to the rights of inmates
by failing to act on information
indicating that unconstitutional acts
were occurring.
58 F.3d at 873 (citing Wright v. Smith, 21 F.3d 496, 501
(2d Cir. 1994)); Donohue v. Manetti, No. 15-636, 2016 WL
740439, at *3 (E.D.N.Y. Feb. 24, 2016) (quoting Colon, 58
F.3d at 873); Barrett, 2014 WL 1220756, at *4 (quoting
Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996)). Some
courts have questioned the continuing applicability of these
factors based upon the heightened pleading requirements
set forth in Iqbal. See Bellamy v. Mount Vernon Hosp.,
No. 07-1801, 2009 WL 1835939, at *6 (S.D.N.Y. June
26, 2009) (“Only the first and part of the third Colon
categories pass Iqbal's muster—a supervisor is only held
liable if that supervisor participates directly in the alleged
constitutional violation or if that supervisor creates a policy
or custom under which unconstitutional practices occurred.”),
aff'd 387 Fed.Appx. 55 (2d Cir. 2010); Newton v. City of New
York, 640 F.Supp.2d 426, 448 (S.D.N.Y. 2009) (“[P]assive
failure to train claims pursuant to section 1983 have not
survived” post-Iqbal.). However, the Second Circuit has not
yet ruled on the issue. See Grullon v. City of New Haven,
720 F.3d 133, 139 (2d Cir. 2013) (noting that Iqbal “may
have heightened the requirements for showing a supervisor's
personal involvement with respect to certain constitutional
violations,” but declining to resolve the issue); see also
Marom v. City of New York, No. 15-2017, 2016 WL 916424,
at *15 (S.D.N.Y. Mar. 7, 2016) (citing Reynolds v. Barrett,
685 F.3d 193, 205 n.14 (2d Cir. 2012) (acknowledging that
Iqbal has “engendered conflict within our Circuit about the
continuing vitality of the supervisory liability test set forth
in Colon v. Coughlin”)); Raspardo v. Carlone, 770 F.3d 97,
117 (2d Cir. 2014) (declining to decide the “contours of the
supervisory liability test” post Iqbal), on reconsideration in
part, No. 15-CV-2017, 2016 WL 5900217 (S.D.N.Y. July
29, 2016). Notwithstanding the Second Circuit's silence, the
majority of courts considering the issue have determined that
“even after the U.S. Supreme Court's decision in Iqbal, these
‘categories supporting personal liability of supervisors still
apply as long as they are consistent with the requirements
applicable to the particular constitutional provision alleged
to have been violated.’ ” Hernandez v. Goord, No. 01-9585,
2013 WL 2355448, at *7 (S.D.N.Y. May 29, 2013) (quoting
Qasem v. Toro, 737 F.Supp.2d 147, 152 (S.D.N.Y. 2010))
(citing Iqbal, 556 U.S. at 676, 129 S.Ct. 1937); see Ramey
v. Perez, No. 13-00017, 2014 WL 407097, at *4 (S.D.N.Y.
Jan. 31, 2014) (“Colon remains the standard in this Circuit
for deciding whether personal involvement by supervisory
officials is sufficiently alleged in the context of the Eighth
Amendment.”); see also Morgan v. Comm'r Dzurenda, No.
14-966, 2015 WL 5722723, at *7 (D. Conn. Sept. 29, 2015)
(“Because it is unclear as to whether Iqbal overrules or
limits Colon, the Court will continue to apply the categories
for supervisory liability set forth by the Second Circuit.”);
Mercier v. Kelly, No. 10-7951, 2013 WL 4452486, at *6
(S.D.N.Y. Aug. 19, 2013) (“[T]he majority view is where
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‘the constitutional claim does not require a showing of
discriminatory intent ... the personal involvement analysis
set forth in Colon v. Coughlin may still apply.’ ”) (quoting
Shepherd v. Powers, No. 11 Civ. 6860, 2012 WL 4477241,
at *10 (S.D.N.Y. Sept. 27, 2012)) (internal quotation marks
omitted) (citing Bertuglia v. City of New York, 839 F.Supp.2d
703, 720–23 (S.D.N.Y. 2012); Malik v. City of New York, No.
11-6062, 2012 WL 3345317, at *14–15 (S.D.N.Y. Aug. 15,
2012)); Martinez v. Perilli, No. 09-6470, 2012 WL 75249,
at *4 (S.D.N.Y. Jan. 5, 2012) (“[T]he five Colon categories
still apply after Iqbal.”) (citing Qasem, 737 F.Supp.2d at
151; D'Olimpio v. Crisafi, 718 F.Supp.2d 340, 345–48
(S.D.N.Y. 2010), aff'd, 462 Fed.Appx. 79 (2d Cir. 2012);
Sash v. United States, 674 F.Supp.2d 531, 544 (S.D.N.Y.
2009)). Using the principles set forth above, the Court will
now consider whether Plaintiff has established the requisite
personal involvement of Defendant Sposato in the underlying
circumstances.
*14 Plaintiff alleges that Defendant Sposato allowed Armor
to deny him medical care and failed to monitor the “medical
department.” See Compl. § II.D. As to the first and
second Colon factors set forth above, Plaintiff does not
allege that Defendant Sposato was directly involved in the
alleged constitutional violations or that he failed to remedy
the constitutional violations “after being informed of the
violation through a report or appeal.” Plaintiff may still
satisfy the personal involvement requirement by establishing
that the defendant was responsible for creating a policy or
custom under which unconstitutional practices occurred, or
allowed the continuance of such a policy or custom, as
set forth in the third Colon factor. “As currently drafted,
the Complaint merely discusses the constitutional violations
against Plaintiffs, which is insufficient to assert a policy
or custom.” See Tretola v. D'Amico, No. 13-5705, 2014
WL 2957523, at *8 (E.D.N.Y. July 1, 2014); see also, e.g.,
Youngblood v. City of N.Y., No. 15-3541, 2016 WL 3919650,
at *5 (S.D.N.Y. June 27, 2016) (holding that the pro se
“Plaintiff's bare allegations of the existence of a custom
and policy and his conclusory assertion that the policy was
linked to his constitutional injuries are insufficient to state
a Monell claim[ ]”); Carpinone v. City of New York, No.
11-2074, 2012 WL 760073, at *2 (S.D.N.Y. Mar. 9, 2012)
(“Plaintiff offers no facts which would render plausible his
allegations of a policy or custom within the New York
City Police Department that was affirmatively linked to
the purported constitutional violations he suffered.”). Here,
Plaintiff Villafane has therefore failed to establish personal
involvement of Defendant Sposato through the third Colon
factor.
Turning to the fourth Colon factor—which appears to be
the factor most directly implicated by Plaintiff's allegations
—Plaintiff claims that “the defendant was grossly negligent
in supervising subordinates who committed the wrongful
acts.” Samuels v. Fischer, 168 F.Supp.3d 625, 638 (S.D.N.Y.
2016) (quoting Colon, 58 F.3d at 873). Courts have held that
in order to establish personal involvement in this context,
a plaintiff must demonstrate that the defendant “knew or
should have known that there was a high degree of risk
that his subordinates would behave inappropriately, but either
deliberately or recklessly disregarded that risk by failing to
take action that a reasonable supervisor would find necessary
to prevent such a risk, and that failure caused a constitutional
injury to Plaintiff.” Samuels, 168 F.Supp.3d at 638 (quoting
Frederick v. Sheahan, No. 10-6527, 2014 WL 3748587, at
*8 (W.D.N.Y. July 29, 2014)) (citing Kucera v. Tkac, No.
12-264, 2013 WL 1414441, at *6 (D. Vt. Apr. 8, 2013))
(explaining that the defendants' alleged failure to supervise
will satisfy the fourth Colon factor if the defendants “knew or
should have known that there was a high degree of risk that
his subordinates would behave inappropriately ... but either
deliberately or recklessly disregarded that risk by failing to
take action that a reasonable officer would find necessary to
prevent such a risk[.]”); Brooks v. Prack, 77 F.Supp.3d 301,
313 (W.D.N.Y. 2014) (quoting Frederick, 2014 WL 3748587,
at *8).
Plaintiff has not provided any salient facts regarding
Defendant Sposato's state of mind—whether he knew or
should have known that his subordinates were engaging
in conduct which violated Plaintiff's or other inmate's
constitutional rights. Plaintiff merely makes the conclusory
allegation that Defendant Sposato “allowed” Armor to engage
in the purportedly unconstitutional conduct. Moreover, even
if Plaintiff had alleged that Sheriff Sposato was aware of
Armor's inaction through his receipt of complaints and failed
to act on those complaints, Plaintiff's allegations might
still fail to establish the requisite personal involvement.
See Tafari v. McCarthy, 714 F.Supp.2d 317, 359 (N.D.N.Y.
2010) (quoting Rivera v. Goord, 119 F.Supp.2d 327, 344–
45 (S.D.N.Y. 2000)) (citing Watson v. McGinnis, 964 F.Supp.
127, 130 (S.D.N.Y. 1997)) (“A prisoner's allegation that
a supervisory official failed to respond to a grievance is
insufficient to establish that the official ‘failed to remedy the
violation after learning of it through a report or appeal’ or
‘allowed the custom or policy to continue after learning of
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it.’ ”). As an example, in Whitenack v. Armor Medical, No.
13-2071, 2014 WL 5502300 (E.D.N.Y. Oct. 30, 2014), the
incarcerated pro se plaintiff filed a civil rights Complaint in
the Eastern District of New York under 42 U.S.C. § 1983
against Armor, Sheriff Sposato, Nassau County and “the
Clerk of the Court of the Nassau County D.A.’s office.” Id.
at *1. As to Sheriff Sposato, plaintiff Whitenack alleged that
Sposato failed to “provid[e] medical needs, even after they
learned, through grievances, that Armor was not providing
proper medical care” and that he “allows Armor to continue
practicing [ ] in the [NCCC] * * *.” Id. at *6 (alterations in
original). The court in Whitenack held that “such allegations
are insufficient to impose Section 1983 liability upon Sheriff
Sposato in a supervisory capacity.” Id. (collecting cases). The
court added that “[s]ince plaintiff ‘has pled no facts, beyond
[Sheriff Sposato's] presumed receipt of [grievances] and [his]
* * *position[ ] atop the [NCCC], implicating [him] in any
violation described in [his] [amended] complaint [,] [he] has
* * * failed to plausibly plead [Sheriff Sposato's] personal
involvement in any infringement of [his] constitutional
rights.’ ” Id. at *6 (alterations in original) (quoting Vogelfang
v. Capra, 889 F.Supp.2d 489, 502 (S.D.N.Y. 2012)). On these
grounds, the court granted the defendants' motion seeking
dismissal of the plaintiff's Section 1983 claim against Sheriff
Sposato. Id.
*15 The Court also notes that Plaintiff fails to set forth any
detail regarding how Defendant Sposato failed to supervise
his subordinates or which subordinates he failed to supervise.
See Brooks, 77 F.Supp.3d at 313. “[T]he mere failure to
supervise would not be sufficient to establish liability under §
1983.” Tyler v. Dalsheim, No. 82-2467, 1985 WL 554, at *1
(S.D.N.Y. Apr. 24, 1985); McRae v. Gentile, No. 914-00783,
2015 WL 7292875, at *5 (N.D.N.Y. Oct. 20, 2015) (quoting
White v. Fischer, No. 09-240, 2010 WL 624081, at *6, 2010
U.S. Dist. LEXIS 15492, at *19 (N.D.N.Y. Feb. 18, 2010))
(citing Pettus v. Morgenthau, 554 F.3d 293, 300 (2d Cir.
2009)) (“ ‘Vague and conclusory allegations that a supervisor’
negligently failed to [ ] supervise subordinate employees do
not suffice to establish personal involvement so as to give rise
to personal liability.”), report and recommendation adopted,
No. 914-783, 2015 WL 7300540 (N.D.N.Y. Nov. 18, 2015).
The Court finds that Plaintiff's claims against Defendant
Sposato fare no better under the fifth Colon factor: “the
defendant exhibited deliberate indifference to the rights of
inmates by failing to act on information indicating that
unconstitutional acts were occurring.” Colon, 58 F.3d at
873. For example, in Holland v. City of New York, the
pro se plaintiff alleged that two individual defendants,
Commissioner Schriro and Warden Perrino, “ ‘pursued a
policy and custom of deliberate indifference’ in the ‘hiring,
training and supervision of’ Jennings and the correction
officer defendants.” See Holland v. City of New York, 197 F.
Supp. 529, 551 (2016). The court determined that plaintiff
Holland's claims failed to satisfy the third, fourth and fifth
Colon factors. Id. In doing so, the court explained that
“[t]o the extent that the complaint attempts to assert a
failure-to-supervise claim, moreover, it lacks any hint that
[Schriro and Perrino] acted with deliberate indifference to the
possibility that [their] subordinates would violate [Holland's]
constitutional rights.” Holland, 197 F.Supp. at 551 (quoting
Pettus v. Morgenthau, 554 F.3d 293, 300 (2d Cir. 2009)).
Likewise, in Erdogan v. Nassau County, this Court found the
following allegations to be conclusory:
Specifically, Plaintiff alleges that the “Defendant
supervisors,” including the Proposed Defendants, “were
personally involved in both the deprivation of Ms.
Erdogan's constitutional rights and in creating or
condoning the policy or custom of failing to take
preventative and remedial measures to guard against such
constitutional deprivations.” PAC ¶ 54. Plaintiff further
maintains that (i) the Defendant supervisors were reckless
in their failure to supervise Mark Barber, and knew or
should have known that Barber was sexually abusing
female inmates and that the conduct against Plaintiff was
likely to occur; and (ii) the failure of the supervisory
defendants to train, supervise, and discipline Barber
amounted to gross negligence. Id. ¶¶ 55–57.
No. 10-5837, 2014 WL 1236679, *16 (E.D.N.Y. March 25,
2014). As a result, this Court held the plaintiff failed to
establish that the defendants were deliberately indifferent or
grossly negligent in supervising subordinates. Id. In addition,
the plaintiff in Erdogan failed to set forth “sufficient factual
averments as required under Iqbal.” Id. at 16 (collecting
cases). Here, too, Plaintiff fails to set forth “sufficient factual
averments” to support a claim for deliberate indifference.
Plaintiff “must do more than plead ‘[c]onclusory allegations
or legal conclusions masquerading as factual conclusions[.]’
” Andino v. Fischer, 698 F.Supp.2d 362, 376 (quoting
Gebhardt v. Allspect, Inc., 96 F.Supp.2d 331, 333 (S.D.N.Y.
2000)) (second alteration added). Since Plaintiff has failed
to meet this standard, the Complaint, as currently drafted,
fails to allege Defendant Sposato's personal involvement—a
deficiency that is fatal to Plaintiff's claim. Huggins, 2015 WL
7345750, at *5.
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2. Section 1983 Claims against Defendant
Sposato in his Official Capacity
*16 Since Plaintiff did not explicitly state that he is suing
Defendant Sposato in his individual capacity, the Court will
also consider whether Plaintiff has stated a claim against
Defendant Sposato in his official capacity as Sheriff of
Nassau County. In this regard, the Court points out that “an
official-capacity suit is, in all respects other than name, to be
treated as a suit against the [governmental] entity [of which
the officer is an agent].” Stancati v. Cty. of Nassau, No.
14-2694, 2015 WL 1529859, at *2 (E.D.N.Y. Mar. 31, 2015)
(citing Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct.
3099, 3105, 87 L.Ed.2d 114 (1985) (alterations in original);
Castanza v. Town of Brookhaven, 700 F.Supp.2d 277, 283–
84 (E.D.N.Y. 2010)). Therefore, a suit against Defendant
Sposato in his official capacity is a suit against the Nassau
County Sheriff's Department. It is well established, however,
that as an “administrative arm of a municipality,” the Nassau
County Sheriff's Department is not a suable entity. Campbell
v. Sposato, No. 15-1958, 2015 WL 9267222, at *4 (E.D.N.Y.
Nov. 17, 2015) (citing Nassau County Charter, DE [14–
2], art. XX, §§ 2001, 2003), report and recommendation
adopted, No. 15-1958, 2015 WL 9273951 (E.D.N.Y. Dec.
16, 2015). Unlike the Nassau County Sheriff's Department,
Nassau County itself is a suable entity. However, for the same
reasons that Plaintiff has failed to set forth a claim against
Armor, which is discussed in greater detail below, Plaintiff's
Complaint fails to establish a claim for municipal liability.
3. Section 1983 Claims against Armor
“Armor is a private company that provides medical services
for inmates at the [NCCC] pursuant to a contract with the
Nassau County Sheriff's Department.” Declaration of John J.
Doody in Support of Defendant Armor's Motion to Dismiss
(“Doody Decl.”) [19-1] ¶ 3. Generally, to state a claim under
Section 1983, the challenged conduct must be attributable
at least in part to a person who was acting under color
of state law. Zamani v. Nassau Cty., No. 14-5606L, 2015
WL 9943257, at *4 (E.D.N.Y. Dec. 16, 2015) (quoting
Hawkins v. Nassau Cty. Corr. Facility, 781 F.Supp.2d 107,
111 (E.D.N.Y. 2011)), report and recommendation adopted,
No. 14-5606, 2016 WL 393934 (E.D.N.Y. Jan. 28, 2016).
However, “a private employer such as Armor may be held
liable under Section 1983 for the acts of its employees
where the unconstitutional act was authorized or undertaken
pursuant to the official policy of the private entity employer
and the employer was jointly engaged with state officials
or its conduct is chargeable to the state.” Gaines, 2013 WL
6410311, at *3; see Hollander v. Copacabana Nightclub, 624
F.3d 30, 33 (2d Cir. 2010); see generally Filarsky v. Delia,
566 U.S. 377, 389-90, 132 S.Ct. 1657, 1661-65, 182 L.Ed.2d
662 (2012); see also Zamani, 2015 WL 9943257, at *5 (citing
Rojas v. Alexander's Dep't Store, Inc., 924 F.2d 406, 408 (2d
Cir. 1990)); Cephas, 2014 WL 537576, at *4 (quoting Gaines,
2012 WL 5438931, at *3) (“ ‘Thus, a private employer acting
under color of state law may be held liable under Section 1983
for the acts of its employees where the unconstitutional act
was authorized or undertaken pursuant to the official policy
of the private entity employer and the employer was jointly
engaged with state officials or its conduct is chargeable to the
state.’ ”); Briel v. Sposato, No. 12-2868, 2012 WL 3697806,
at *5 (E.D.N.Y. Aug. 21, 2012).
In the instant case, Armor is the “medical arm” of the
NCCC where Plaintiff was detained. See Cephas, 2014 WL
537576, at *5. The Court will therefore assume for purposes
of deciding the instant motion that Armor was acting under
color of state law in rendering medical services to Plaintiff
at the NCCC. Cherry v. Spoato [sic], No. 15-1832, 2015 WL
2089588, at *3 (E.D.N.Y. May 5, 2015); Feder v. Sposato, No.
11-193, 2014 WL 1801137, at * 6 (E.D.N.Y. May 7, 2014)
(quoting West v. Atkins, 487 U.S. 42, 54, 108 S.Ct. 2250, 101
L.Ed.2d 40 (1988)) (“Because Armor was hired to fulfill the
state's constitutional obligation to provide necessary medical
care for its inmates, [it][was] ‘acting under the color of state
law’ for purposes of Section 1983”).
*17 As referenced above, there is no respondeat superior
liability for § 1983 claims. Monell v. Dep't of Soc. Servs.,
436 U.S. 658, 691–94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978);
Southerland v. City of N.Y., 681 F.3d 122, 137 (2d Cir.
2012) (quoting Monell, 436 U.S. at 691-94, 98 S.Ct. 2018).
Since Plaintiff does not assert claims against any individual
employee or official of Armor, Armor may be liable under §
1983 only if Plaintiff “proves that action pursuant to official ...
policy of some nature caused a constitutional tort.” Grafton
v. Cty. of Nassau, No. 15 CV 4564, 2016 WL 8711072, at
*9 (E.D.N.Y. July 15, 2016) (emphasis in original) (citing
Rojas v. Alexander's Dep't Store, Inc., 924 F.2d 406, 408-09
(2d Cir. 1990); Green v. City of New York, 465 F.3d 65, 82
(2d Cir. 2006)); Cofield v. Armor Correctional Health Inc.,
No. 12-1394, 2013 WL 2416318, at *4 (E.D.N.Y. May 31,
2013) (citing Rojas, 924 F.3d 408). “Although Monell dealt
with municipal employers, its rationale has been extended
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to private businesses [acting under color of state law].”
Rojas, 924 F.2d at 409; see also Bektic–Marrero v. Goldberg,
850 F.Supp.2d 418, 432 (S.D.N.Y. 2012) (collecting cases)
(holding that Monell has been extended to private Section
1983 defendants acting under color of state law).
Here, Plaintiff has not plausibly alleged facts showing that the
constitutional deprivations he alleges resulted from an official
policy or custom of Armor. In particular,
Plaintiff has not alleged facts from
which to reasonably infer: (1) the
existence of a formal policy to
deny inmates at the NCCC, including
himself, their ‘basic medical needs’
which is officially endorsed by Armor;
(2) actions taken or decisions made by
Armor policymaking officials which
caused the alleged violation of his
civil rights ...; (3) an Armor practice
so persistent and widespread as to
practically have the force of law; or
(4) a failure by Armor policymakers
to properly train or supervise their
subordinates, amounting to ‘deliberate
indifference’ to the rights of those who
come in contact with their employees.
Whitenack, 2014 WL 5502300, at *9; see, e.g., Barrett, 2014
WL 1220756, at *5 (dismissing claims against Armor where
the plaintiff “neither alleged that an Armor employee violated
his constitutional rights, nor ... alleged a single fact to support
an inference that any action resulted from an official policy
or custom”).
The Court turns to prevailing Second Circuit case law
involving civil rights complaints to demonstrate the factual
averments and evidentiary support needed to satisfy the
pleading requirements set forth in Iqbal. In Kucharczyk
v. Westchester County, the pro se plaintiff alleged in his
complaint “a Monell claim for [a] pattern due to the fact that
there [are] several claims pending in this court based on the
same facts [he] allege[s] in [the instant] [C]omplaint.” 95
F.Supp.3d 529, 543 (S.D.N.Y. 2015) (alterations in original).
In support of his claim, the plaintiff attached to his complaint
a copy of a report issued by the Civil Rights Division of the
United States Department of Justice which memorialized the
department's findings resulting from an investigation of the
correctional facility where the plaintiff was detained.
The court in Kucharczyk explained that “[t]he Second Circuit
and the district courts within the Second Circuit have held
that a plaintiff's citation to a few lawsuits involving claims
of alleged [constitutional violations] is not probative of the
existence of an underlying policy by a municipality ... or
department of corrections.” Id. (quoting Ameduri v. Village
of Frankfort, 10 F.Supp.3d 320, 341 (N.D.N.Y. 2014))
(collecting cases). “Some courts, however, have found that
other lawsuits identified by a plaintiff that concern the
same practice and policy at issue in the complaint permit a
plausible inference of deliberate indifference.” Id. (collecting
cases). In Kucharczyk, the court concluded that regardless
of which approach it adopted, the plaintiff's failure to name
the cases and indicate how many were pending rendered his
statement conclusory and the court would have to disregard
it on that grounds. Id. Notwithstanding this deficiency, the
court determined that the plaintiff had sufficiently alleged a
custom or practice by virtue of the DOJ Report appended
to his complaint. Id. According to the report, the facility
“ ‘ha[d] a pattern of failing to ... provide inmates with
adequate medical ... care,” which “violate[d] WCJ inmates'
constitutional rights.’ ” Id. The report further stated that
“ ‘[a]lthough WCJ has instituted a policy for submitting
grievances, it is not consistently implemented or effectively
publicized,’ which posed a risk to inmates that perceived that
their serious health needs were being unmet.” Id. Moreover,
the court noted, the report was released several years prior to
the commencement of the suit, so the facility's policymakers
were well aware of the deficiencies. Id. at 544-545. The court
held that based on this information, the plaintiff adequately
alleged “a widespread practice or policy of which Defendants
were aware to survive Defendants' Motion to Dismiss his
Monell claim.” Id. at 544.
*18 Although the DOJ report persuaded the court in
Kucharczyk that the plaintiff had successfully pleaded a
Monell claim, this Court notes that submission of such a
report is not necessarily required to satisfy the Iqbal pleading
standard. For example, in Donohue v. Manetti, No. 15-636,
2016 WL 740439, at *1 (E.D.N.Y. 2016), the pro se plaintiff
filed a Section 1983 action against Armor, two individual
medical professionals and Sheriff Sposato for failing to
provide the plaintiff with adequate medical care in violation
of the Eighth and Fourteenth Amendments. More specifically,
the plaintiff there alleged that he was denied previously
prescribed psychotropic medication, and instead of giving
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him his prescribed pain medication, the defendant nurse
deliberately gave him medication to which he was allergic.
Id. at *1-2. The defendants in Donohue argued that “two
isolated incidents are insufficient to be deemed a policy or
custom for the purpose of § 1983 liability.” Id. at *5. The
court rejected the defendants' argument, finding that these
incidents, in combination with the comments alleged to have
been made to the plaintiff by Armor staff (i.e. “things are
different now and we don't hand out pills anymore—deal
with it,” it is “Armor's ‘policy’ not to ‘write’ (prescribe) pain
medication other than N.S.A.I.D.S.” and “I wish you would
have died”) “support[ed] an inference of a policy or custom
to deny inmates adequate medical care.” Id. at *6.
Here, Plaintiff's complaint “concerns only allegedly
unconstitutional conduct to which he was subjected.” Joseph
v. Nassau County Correctional Facility, No. 15-7010, 2016
WL 3033725 (E.D.N.Y. May 26, 2016). Moreover, Plaintiff
does not set forth any facts which could give rise to an
inference that the constitutional deprivations suffered by
Plaintiff arose from an official policy or custom. On this
basis, and for the foregoing reasons, this Court respectfully
recommends to Judge Bianco that Defendants' motion to
dismiss be GRANTED to the extent it seeks dismissal
of Plaintiff's § 1983 claim against Defendant Sposato and
Defendant Armor.
C. Plaintiff's Claim for Deliberate Indifference to
Medical Needs
Because the Court is recommending to Judge Bianco that the
Amended Complaint be dismissed based on Plaintiff's failure
to state a valid § 1983 claim against the Defendants, the Court
would not normally address whether Plaintiff has adequately
stated a claim that Defendants violated his constitutional
rights by acting with deliberate indifference to his serious
medical needs. However, this Court is also recommending
to Judge Bianco that Plaintiff be granted leave to amend his
pleadings. Therefore, the Court will now assess Plaintiff's
deliberate indifference claim.
1. Legal Standard for Deliberate Indifference
Plaintiff asserts that at the time of his arrest and arrival at
NCCC he had a broken left forearm. Compl. § III.C. Despite
repeatedly notifying Defendants of his painful condition,
Plaintiff contends that Defendants failed to produce him
for the necessary surgery and failed to provide him with
prescribed pain medication. Id. Plaintiff does not specify in
his Complaint whether he was a pre-trial detainee or convicted
inmate during the time at issue. Given the temporal proximity
between Plaintiff's arrest and the purported unconstitutional
conduct, the Court finds it is not unreasonable to assume that
Plaintiff was a pre-trial detainee for at least some portion
of the time at issue. See generally Compl. The Eighth
Amendment, which prohibits cruel and unusual punishment,
governs a convicted prisoner's claims of inadequate medical
care. See Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017)
(citing Benjamin v. Fraser, 343 F.3d 35, 49 (2d Cir. 2003),
overruled on other grounds by Caiozzo v. Koreman, 581 F.3d
63, 70 (2d Cir. 2009); City of Revere v. Mass. Gen. Hosp.,
463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983));
U.S. Const. amend. XIV (No “State [shall] deprive any person
of life, liberty, or property, without due process of law[.]”).
However, a pretrial detainee's claim for inadequate medical
care is governed by the Fourteenth Amendment's Due Process
Clause. Id. Since a pre-trial detainee has not been convicted
of any crime, the standard applied is different. Swanson
v. City of New York, No. 16-3231, 2017 WL 3130322, at
*6 (E.D.N.Y. July 21, 2017) (quoting Darnell, 849 F.3d at
29); see City of Revere v. Mass. Gen. Hosp., 463 U.S. 239,
244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983) (“The Due
Process Clause ... require[s] the responsible government or
governmental agency to provide medical care to [pretrial
arrestees] ... who have been injured while being apprehended
by the police.”). “[W]hile the Supreme Court has not precisely
limned the duties of a custodial official under the Due
Process Clause to provide needed medical treatment to a
pretrial detainee, it is plain that an unconvicted detainee's
rights are at least as great as those of a convicted prisoner.”
Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996) (citing
City of Revere, 463 U.S. at 244, 103 S.Ct. 2979; Bryant v.
Maffucci, 923 F.2d 979, 983 (2d Cir. 1991)) (“[T]he due
process rights of a ... [pretrial detainee] are at least as great as
the Eighth Amendment protections available to a convicted
prisoner[.]”). Accordingly, irrespective of which Amendment
is utilized to analyze a plaintiff's claim for inadequate
medical care, the plaintiff must show that the defendants
were deliberately indifferent to his or her serious medical
needs, which involves a two-pronged analysis. Grimmett v.
Corizon Med. Assocs. of New York, No. 15-7351, 2017 WL
2274485, at *3 (S.D.N.Y. May 24, 2017). First, “the alleged
deprivation of adequate medical care must be ‘sufficiently
serious.’ ” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir.
2006) (quoting Farmer v. Brennan, 511 U.S. 825, 832, 844,
114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)); Spavone v. N.Y.
State Dep't of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013)
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(quoting Salahuddin, 467 F.3d at 279). Second, the plaintiff
must show that the defendant acted with a “sufficiently
culpable state of mind.” Chance v. Armstrong, 143 F.3d 698,
702 (2d Cir. 1998) (quoting Hathaway v. Coughlin, 37 F.3d
63, 66 (2d Cir. 1994)); see Salahuddin, 467 F.3d at 279-81.
*19 Prior to the Second Circuit's decision in Darnell
v. Pineiro, 849 F.3d 17, 21 n.3, 29 (2d Cir. 2017), the
analysis under the second prong was deemed to be identical
to the first regardless of whether the plaintiff's claim was
brought under the Eighth Amendment or the Fourteenth
Amendment: the plaintiff had to prove that the defendant
official was subjectively aware of the harms associated with
the constitutional deprivation. Darnell, 849 F.3d at 32 (citing
Farmer v. Brennan, 511 U.S. 825, 836-37, 114 S.Ct. 1970, 128
L.Ed.2d 811 (1994)). However, in Darnell, the Second Circuit
altered the analysis in light of the Supreme Court's decision in
Kingsley v. Hendrickson, ––– U.S. ––––, 135 S.Ct. 2466, 192
L.Ed.2d 416 (2015). In Kingsley, the Supreme Court held that
“for excessive force claims brought under the Due Process
Clause of the Fourteenth Amendment, ‘a pretrial detainee
must show only that the force purposely or knowingly used
against him was objectively unreasonable,’ ” Darnell, 849
F.3d at 21 (citing Kingsley, 135 S.Ct. at 2473), “reject[ing]
the requirement that ... a pretrial detainee establish a state of
mind component to the effect that the official applied the force
against the pretrial detainee ‘maliciously and sadistically to
cause harm.’ ” Id. at 21 (citing Kingsley, ––– U.S. ––––,
135 S.Ct. 2466, 2475, 192 L.Ed.2d 416). In other words,
after Kingsley, “rather than ask whether the charged official
‘kn[ew] of and disregard[ed] an excessive risk to inmate
health or safety,’ courts are to instead determine whether the
official ‘knew, or should have known’ that his or her conduct
‘posed an excessive risk to health or safety.’ ” Lloyd v. City of
New York, 246 F.Supp.3d 704, 718 (S.D.N.Y. 2017). The court
in Darnell explained that the second prong, which had been
referred to as the “subjective prong,” is more appropriately
described as the “mens rea prong” or “mental element prong.”
Darnell, 849 F.3d at 32 (internal quotation marks omitted).
The Second Circuit has held that Kingsley is applicable
beyond the context of excessive force claims. Id. at 35-36
(citing Castro v. County of Los Angeles, 833 F.3d 1060, 1070
(9th Cir. 2016) (en banc)). District Courts in this circuit
have applied Kingsley to claims for deliberate indifference to
medical needs. See e.g., Grimmett v. Corizon Med. Assocs. of
New York, No. 15-7351, 2017 WL 2274485, at *4 (S.D.N.Y.
May 24, 2017); Narvaez v. City of New York, No. 16-1980,
2017 WL 1535386, at *2 (S.D.N.Y. Apr. 17, 2017); Lloyd
v. City of New York, 246 F.Supp.3d 704, 718 (S.D.N.Y.
2017) (“The reasoning of Darnell applies equally to claims
of deliberate indifference to serious medical needs under
the Fourteenth Amendment.”); Feliciano v. Anderson, No.
15-4106, 2017 WL 1189747, at *8 (S.D.N.Y. Mar. 30,
2017); Gonzalez-Torres v. Newson, No. 17-00455, 2017 WL
2369369, at *3 (D. Conn. May 31, 2017).
The Court notes that “not every lapse in medical care is a
constitutional wrong.” Salahuddin, 467 F.3d at 279. Thus, if
the plaintiff fails to satisfy either prong as set forth in Darnell,
his or her deliberate indifference claim must be dismissed.
See Grimmett, 2017 WL 2274485, at *3; Narvaez, 2017 WL
1535386, at *5. “Moreover [ ] not every lapse in prison
medical care will rise to the level of a constitutional violation.’
” Ruiz v. Homerighouse, No. 01-0266, 2003 WL 21382896, at
*2 (W.D.N.Y. Feb. 13, 2003) (alterations in original) (quoting
Smith v. Carpenter, 316 F.3d 178, 2003 WL 115223, at *4
(2d Cir. 2003)). “[N]egligence alone is insufficient to make
out a deliberate indifference claim” under either the Eighth
Amendment or the Fourteenth Amendment. Grimmett, 2017
WL 2274485, at *5 (S.D.N.Y. May 24, 2017) (citing Darnell,
849 F.3d at 36).
b. Objective Prong
Generally, to satisfy the objective prong of the deliberate
indifference standard, a plaintiff must show “that the alleged
deprivation of medical treatment is, in objective terms,
‘sufficiently serious’—that is, the prisoner must prove that
his medical need was ‘a condition of urgency, one that may
produce death, degeneration, or extreme pain.’ ” Johnson
v. Wright, 412 F.3d 398, 403 (2d Cir. 2005) (quoting
Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998));
see Salahuddin, 467 F.3d at 279. However, where, as here,
“a prisoner receives some care, but allegedly inadequate
care, the analysis of whether there was a sufficiently serious
medical condition is more complex.” Hardy v. City of New
York, 732 F.Supp.2d 112, 128 (E.D.N.Y. 2010) (Salahuddin,
467 F.3d at 280). In such cases, “the court must focus on
whether ‘the alleged deprivation of adequate medical care
was sufficiently serious.’ ” Id. (quoting Salahuddin, 467 F.3d
at 280) (emphasis in original and alteration omitted); see,
e.g., Ferguson v. Cai, No. 11-6181, 2012 WL 2865474, at
*4 (S.D.N.Y. July 12, 2012) (quoting Edmonds v. Central
N.Y. Psychiatric Ctr., No. 10-5810, 2011 WL 3809913, at
*4 (S.D.N.Y. Aug. 25, 2011)) (collecting cases); DiChiara
v. Wright, No. 06-6123, 2011 WL 1303867, at *6 (E.D.N.Y.
Mar. 31, 2011). “[I]f the prisoner is receiving on-going
treatment and the offending conduct is an unreasonable
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delay or interruption in that treatment, the seriousness
inquiry focuses on the challenged delay or interruption
in treatment rather than the prisoner's underlying medical
condition alone.” Salahuddin, 467 F.3d at 280 (quoting Smith
v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003)) (internal
quotation marks and alterations omitted). In other words, “it's
the particular risk of harm faced by the prisoner due to the
challenged deprivation of care, rather than the severity of
the prisoner's underlying medical condition, considered in
the abstract, that is relevant” for purposes of establishing a
deliberate indifference claim. Smith, 316 F.3d at 186 (citing
Chance, 143 F.3d at 702–03); see Hardy, 732 F.Supp.2d at
128 (quoting Salahuddin, 467 F.3d at 280) (“In effect, a
court must determine ‘whether the inadequacy in medical
care [was] sufficiently serious’ by examining the harm
plaintiff was exposed to as a result of defendant's conduct.”).
“A defendant's delay in treating an ordinarily insignificant
medical condition can become a constitutional violation if
the condition worsens and creates a substantial risk of injury.
Conversely, delay in treating a life-threatening condition may
not violate the Eighth [or Fourteenth] Amendment if the lapse
does not cause any further harm beyond that which would
occur even with complete medical attention.” DiChiara, 2011
WL 1303867, at *7 (citing Graham v. Wright, No. 01–9613,
2004 WL 1794503, at *4, 2004 U.S. Dist. LEXIS 15738,
at *13 (S.D.N.Y. Aug. 9, 2004)) (internal quotation marks
omitted).
*20 To determine whether a delay in treatment is objectively
serious, the court must “look to ‘all relevant facts and
circumstances.’ ” Id. (quoting Smith, 316 F.3d at 187). In
general, “[w]here temporary delays or interruptions in the
provision of medical treatment have been found to satisfy the
objective seriousness requirement in this Circuit, they have
involved either a needlessly prolonged period of delay, or a
delay which caused extreme pain or exacerbated a serious
illness.” Ferguson v. Cai, No. 11-6181, 2012 WL 2865474, at
*4 (S.D.N.Y. July 12, 2012) (citing Salahuddin, 467 F.3d at
281; Chance, 143 F.3d at 702; Hathaway, 37 F.3d at 65, 67).
Although “the actual medical consequences that flow from
the alleged denial of care” will often “be highly relevant to
the question of whether the denial of treatment subjected the
prisoner to a significant risk of serious harm,” a deliberate
indifference claim “may be based on a defendant's conduct in
exposing an inmate to an unreasonable risk of future harm.”
Smith, 316 F.3d at 187-88 (citing Helling v. McKinney, 509
U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)) (internal
citations omitted). However, “the absence of present physical
injury will often be probative in assessing the risk of future
harm.” Id. at 188; see DiChiara, 2011 WL 1303867, at *7
(citing Smith, 316 F.3d at 187).
Here, as discussed earlier in this Report and
Recommendation, Plaintiff alleges that despite the directives
of outside medical professionals that he be immediately
produced for surgery to repair his broken left forearm, it
appears that Defendants were delayed in getting Plaintiff the
requisite medical care. Because of this delay, doctors were
forced to rebreak Plaintiff's arm and install metal plates and
screws. Plaintiff alleges that he is in constant pain and does
not have full use of his left wrist. Considering Plaintiff's
broken left forearm in the abstract, the Court finds that
it constitutes a sufficiently serious medical condition. See
Mendez v. Acting Sheriff, Nassau Cty. Corr. Ctr., No. 10-1960,
2010 WL 2629781, at *2 (E.D.N.Y. June 28, 2010) (citing
Henderson v. Doe, No. 98-5011, 1999 WL 378333 (S.D.N.Y.
June 10, 1999) (broken finger does not rise constitute a serious
injury); Neitzke v. Williams, 4910 U.S. 319, 109 S.Ct. 1827,
104 L.Ed.2d 338 (1989) (broken hip constitutes a serious
injury); Bryan v. Endell, 141 F.3d 1290, 1293 (8th Cir. 1998)
(broken hand constitutes a serious injury); Durham v. Nu'
Man, 97 F.3d 862, 869 (6th Cir. 1996) (broken arm constitutes
an “undeniably serious” injury); Benning v. Ehrits, No. 08-
CV-0815, 2009 WL 2982973, at *1 (N.D.N.Y. Sept. 14,
2009) (broken arm constitutes a serious injury); Hernandez
v. Harrison, No. 07-7489(JVS)(JC), 2008 WL 4836046, at
*13 (C.D. Cal. Oct. 29, 2008) (broken leg constitutes a
serious injury)) (broken knee rises to the level of “sufficiently
serious”); see Vining v. Dep't of Correction, No. 12-3267,
2013 WL 2036325, at *4 (S.D.N.Y. Apr. 5, 2013) (“Indeed,
numerous courts have found objectively serious injury in
cases involving injury to the hand, including broken bones.”)
(collecting cases).
Moreover, a serious medical condition has been deemed to
include “ ‘condition[s] of urgency, [ ] that may produce death,
degeneration, or extreme pain[.]’ ” Hathaway, 99 F.3d at 553
(quoting Schermerhorn v. Local 100, Transp. Workers Union
of Am., AFL-CIO, 91 F.3d 316, 320 (2d Cir. 1996)) (quotation
marks and citation omitted). “[I]t has also been interpreted
to include ‘less serious denials [of medical attention] which
cause or perpetuate pain.’ ” Vining v. Dep't of Correction,
No. 12-3267, 2013 WL 2036325, at *3 (S.D.N.Y. Apr. 5,
2013) (quoting Brock v. Wright, 315 F.3d 158, 163 (2d Cir.
2003) (citation omitted)). However, the fact that Plaintiff
suffers from a serious medical condition is not sufficient, by
itself, to sustain his deliberate indifference claim based on the
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delay of his surgery; instead, Plaintiff must allege facts which
plausibly show that the delay was objectively serious.
*21 Viewing the facts in the light most favorable to Plaintiff
and drawing every reasonable inference in his favor, the
Court cannot, at this stage in the litigation and on this record,
determine as a matter of law whether the delay in Plaintiff's
surgical procedure was objectively serious. Although Plaintiff
does not set forth the exact date upon which he ultimately
had the surgery, the Court makes the assumption based on
the information contained in the pleading that the surgery was
delayed for approximately two months.
c. Mens Rea Prong
The Court finds that Plaintiff's allegations state enough
information to satisfy the second prong of the deliberate
indifference pleading standard, which requires that
Defendants acted with a sufficiently culpable state of mind.
See Darnell, 849 F.3d at 35; see also Grimmett, 2017 WL
2274485 (quoting Chance, 143 F.3d at 702) (“Second, the
defendant must have acted with deliberate indifference, or a
‘sufficiently culpable state of mind.’ ”); Hathaway, 37 F.3d at
66. “Deliberate indifference requires more than negligence.”
Hathaway, 99 F.3d at 66 (quoting Farmer, 114 S.Ct. at 1978).
As noted, the Second Circuit in Darnell explained that in
order for a pre-trial detainee to establish a claim for deliberate
indifference under the Fourteenth Amendment's Due Process
Clause,
the pretrial detainee must prove
that the defendant-official acted
intentionally to impose the alleged
condition, or recklessly failed to act
with reasonable care to mitigate the
risk that the condition posed to the
pretrial detainee even though the
defendant-official knew, or should
have known, that the condition posed
an excessive risk to health or safety.
It follows that the defendant official need not “have subjective
awareness that the official's acts (or omissions) have subjected
the pretrial detainee to a substantial risk of harm.” Narvaez,
2017 WL 1535386, at *6 (citing Darnell, 849 F.3d at 35).
The Court must ask “whether the official ‘knew, or should
have known’ that his or her conduct ‘posed an excessive
risk to health or safety.’ ” Lloyd, 246 F.Supp.3d at 718;
Darnell, 849 F.3d at 35. A pre-trial detainee may establish
a violation of the Fourteenth Amendment where “officials
deliberately delayed care as a form of punishment, ignored
a life threatening and fast-degenerating condition for three
days, or delayed major surgery for over two years.’ ” Ford
v. Rodriguez, No. 15-4909, 2016 WL 6776345, at *4-5
(S.D.N.Y. Nov. 16, 2016) (quoting Frith v. City of New
York, 203 F.Supp.3d 386, 390 (S.D.N.Y. 2016)), report and
recommendation adopted, No. 15-4909, 2017 WL 58843
(S.D.N.Y. Jan. 5, 2017). Finally, it is well-established that
“negligence, even if it amounts to medical malpractice,
does not constitute a constitutional violation.” Thomas v.
Nassau County Correctional Center, 288 F.Supp.2d 333, 338
(E.D.N.Y. 2003) (citing Estelle v. Gamble, 429 U.S. 97, 102,
97 S.Ct. 285, 290, 50 L.Ed. 2d 251 (1976)).
Here, Plaintiff alleges that on September 14, 2013, the
examining physician at Nassau University Medical Center
advised that Plaintiff would need to be returned three days
later—on September 17, 2013—for surgery. See Compl. §
III.C. According to Plaintiff, defendants failed to do so and
also failed to give Plaintiff the prescribed pain medication.
Id. Plaintiff further contends that on September 24, 2013,
a visiting orthopedist expressed shock that Plaintiff had
not received any surgery and noted on Plaintiff's chart that
it was extremely urgent that he receive surgery. Id. On
October 9, 2013, plaintiff was transported to the Nassau
University Medical Center where he was advised that his
arm was in fact broken and that because he had not received
the necessary care his arm would have to be rebroken.
Id. Plaintiff further alleges that on November 5, 2013, he
was transferred to the Metropolitan Detention Center. Id.
Officials transferred Plaintiff to Brooklyn Medical Center and
Kingsbrook Hospital “from 2014 through 2015.” Id. It was the
Brooklyn Medical Center where Plaintiff ultimately received
the surgery he needed. Id. Doctors rebroke Plaintiff's arm and
installed two metal plates along with metal screws in his arm.
Plaintiff represented that he is in constant pain and does not
have 100% use of his left wrist. Id.
*22 Taking all of Plaintiff's allegations as true, as the Court
is required to do, and drawing all reasonable inferences in
Plaintiff's favor, the Court finds Plaintiff has sufficiently
pleaded that Defendants were fully aware Plaintiff's left
forearm was broken and that he required surgery right
away. Moreover, Defendants were notified that because they
delayed Plaintiff's treatment, Plaintiff's arm would have to
be rebroken. Yet Defendants still did not produce Plaintiff
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for surgery. Further, throughout this period of time, Plaintiff
repeatedly complained of pain but defendants refused to
provide him with the prescribed pain medication. The Court
finds that Armor knew, or should have known that its conduct
“posed an excessive risk to health or safety.” Lloyd, 246
F.Supp.3d at 718; Darnell, 849 F.3d at 35
D. Plaintiff's Fifth Amendment Claim
Because the Court recommends to Judge Bianco that the
Amended Complaint be dismissed based on Plaintiff's failure
to state a valid § 1983 claim against the Defendants, the
Court generally would not need to address whether Plaintiff
adequately alleged a violation of Plaintiff's Fifth Amendment
rights. However, in light of the fact that the Court also
recommends that Plaintiff be granted leave to amend his
pleadings, the Court will undertake a brief analysis of
Plaintiff's Fifth Amendment claim.
The Fifth Amendment states as follows:
No person shall be held to answer
for a capital, or otherwise infamous
crime, unless on a presentment or
indictment of a Grand Jury, except
in cases arising in the land or naval
forces, or in the Militia, when in
actual service in time of War or public
danger; nor shall any person be subject
for the same offence to be twice put
in jeopardy of life or limb; nor shall
be compelled in any criminal case to
be a witness against himself, nor be
deprived of life, liberty, or property,
without due process of law; nor shall
private property be taken for public
use, without just compensation.
U.S. Const. amend. V. “The Due Process Clause of the Fifth
Amendment prohibits the United States, as the Due Process
Clause of the Fourteenth Amendment prohibits the States,
from depriving any person of property without ‘due process
of law.’ ” Dusenbery v. United States, 534 U.S. 161, 167,
122 S.Ct. 694, 699, 151 L.Ed. 2d 597 (2002). Here, Plaintiff's
Complaint has been filed against a state official and a private
contractor acting under color of state law, not the federal
government. As a court in the Second Circuit has observed,
in such circumstances, “[Plaintiff's] appeal to rights secured
under the Fifth Amendment is misplaced and dismissed.”
Molina v. New York, 697 F.Supp.2d 276, 284 (N.D.N.Y. 2010).
Here, Plaintiff's Fifth Amendment claim must be dismissed,
and no amount of re-pleading will cure this problem.
E. Plaintiff's PLRA Claim and Equal Protection
Claim
Plaintiff further alleges that Defendants' conduct constitutes
a violation of the PLRA. Compl. § II.B. Plaintiff does not
specify which provision of the PLRA his claim arises under.
Since Plaintiff also asserts a violation of the Equal Protection
Clause, which prohibits discriminatory treatment, the Court
will interpret the instant claim as one under 42 U.S.C. §
1997(d), which sets forth the following prohibition: “No
person reporting conditions which may constitute a violation
under this subchapter shall be subjected to retaliation in
any manner for so reporting.” See Mumin v. Johnson, No.
07-4973, 2008 WL 976268, at *3 (E.D.N.Y. Apr. 9, 2008).
However, Section 1997(d) does not provide a plaintiff with a
private cause of action. Id. Therefore, the Court will construe
this claim as one arising under the Equal Protection Clause.
As stated in the context of Plaintiff's Fifth Amendment
claim above, the Fourteenth Amendment to the United States
Constitution sets forth prohibitions applicable to the States.
The Equal Protection Clause of the Fourteenth Amendment
states:
*23 All persons born or naturalized
in the United States, and subject to the
jurisdiction thereof, are citizens of the
United States and of the State wherein
they reside. No State shall make or
enforce any law which shall abridge
the privileges or immunities of citizens
of the United States; nor shall any State
deprive any person of life, liberty, or
property, without due process of law;
nor deny to any person within its
jurisdiction the equal protection of the
laws.
U.S. Const. amend. XIV (emphasis added). “[T]he Fourteenth
Amendment prohibits the selective adverse treatment of
individuals by government actors ‘compared with others
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similarly situated’ if such selective treatment is based on
‘impermissible considerations such as race ... or malicious or
bad faith intent to injure a person.’ ” Castro-Sanchez v. N.Y.S.
Dep't of Corr. Servs., No. 10-8314, 2012 WL 4474154, at
*3 (S.D.N.Y. Sept. 28, 2012) (quoting LeClair v. Saunders,
627 F.2d 606, 609-10 (2d Cir. 1980)). Here, Plaintiff has not
alleged that he was treated differently from other similarly
situated individuals, whether by virtue of his race, or the
fact that he filed a grievance or sick call request, or on
any other grounds. See generally, Compl. Plaintiff's PLRA/
Equal Protection Clause claim must therefore be dismissed
and this Court respectfully makes that recommendation to
Judge Bianco. See id. (quoting Phillips v. Girdich, 408
F.3d 124, 129 (2d Cir. 2005)) (“If a prisoner claims that
he received different treatment by prison officials because
of a protected characteristic, he must plead ‘that he was
treated differently than others similarly situated’ and that the
differential treatment was ‘a result of intentional or purposeful
discrimination.’ ”)
V. LEAVE TO RE-PLEAD
“When addressing a pro se complaint, a district court should
not dismiss without granting leave to amend at least once
when a liberal reading of the complaint gives any indication
that a valid claim might be stated.” Aquino v. Prudential
Life & Cas. Ins. Co., 419 F.Supp.2d 259, 278 (E.D.N.Y.
2005) (citing Thompson v. Carter, 284 F.3d 411, 419 (2d Cir.
2002) (“The liberal pleading standards applicable to pro se
civil rights complaints in this circuit require that the district
court give [plaintiff] an opportunity to flesh out his somewhat
skeletal complaints before dismissing them”)). The Second
Circuit has stated that “[w]hen a motion to dismiss is granted,
the usual practice is to grant leave to amend the complaint.”
Hayden v. Cnty. of Nassau, 180 F.3d 42, 53 (2d Cir. 1999)
(citing Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir.
1990)), overruled on other grounds by Gonzaga v. Doe,
536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002); see
Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave
[to amend] when justice so requires.”). The Court should
generally not dismiss a pro se complaint without granting
the plaintiff leave to amend if a valid claim could be stated.
Clifton v. Hra Nyc Govt, No. 16-1753, 2016 WL 4203486, at
*1 (E.D.N.Y. Aug. 9, 2016) (citing Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000)).
Even under this liberal standard, however, the court may
decline to provide the plaintiff with an opportunity to re-
plead if the court finds that the plaintiff “cannot correct the
defects in his federal claims” and therefore “any attempt to
amend the pleading ... would be futile.” Shorter v. Rice, No.
12-0111, 2012 WL 1340088, at *5 (E.D.N.Y. Apr. 10, 2012);
see Cuoco, 222 F.3d at 112 (citing Hunt v. Alliance N. Am.
Gov't Income Trust, 159 F.3d 723, 728 (2d Cir. 1998)) (“The
problem with [the plaintiff's] causes of action is substantive;
better pleading will not cure it. Repleading would thus be
futile. Such a futile request to replead should be denied.”).
*24 Based on the foregoing case law, the arguments
contained in all the motion papers, and the Court's analysis
of Plaintiff's claims set forth supra in this Report and
Recommendation, the Court recommends to Judge Bianco
that although the current allegations are deficient, there is
some “indication that a valid claim might be stated” against
Defendants Sposato and Armor. Cuoco, 222 F.3d at 112
(quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794,
795 (2d Cir. 1999)) (internal quotation marks omitted). The
Court further notes that Plaintiff did not have access to his
medical records at the time he filed the Complaint, and those
records have since been provided to Plaintiff pursuant to this
Court's May 1, 2017 Order. See DE 36. Accordingly, the
Court respectfully recommends to Judge Bianco that Plaintiff
be granted leave to re-plead his claim for individual liability
against Defendant Sposato and his Monell claim against
Armor, as well as his claim for deliberate indifference to
serious medical needs against those defendants.
Since Plaintiff is now in possession of his medical records
and legible copies of Defendants' uncited opinions, Plaintiff
can utilize the information contained in these documents in
redrafting his Complaint. 2
2 In light of Plaintiff Villafane's continued assertion
of his need to obtain the transcript of his September
2013 arraignment before Magistrate Judge Brown,
this Court secured the transcript and is attaching
a copy to this Report and Recommendation to be
served upon Plaintiff.
VI. CONCLUSION
Based on the foregoing findings, the Court respectfully
recommends to Judge Bianco that Defendants' motion to
dismiss be GRANTED, in part, and DENIED, in part. In
particular, the Court recommends that the motion be DENIED
insofar as it seeks dismissal based on Plaintiff's failure to
exhaust his administrative remedies, and that the motion
otherwise be GRANTED. The Court further recommends that
Plaintiff's Complaint be DISMISSED, without prejudice, and
with leave to amend.
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VII. OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule 72 of
the Federal Rules of Civil Procedure, the parties shall
have fourteen (14) days from service of this Report and
Recommendation to file written objections. See also Fed. R.
Civ. P. 6(a), (e). Such objections by an attorney of record shall
be filed with the Clerk of the Court via ECF. A courtesy copy
of any objections filed is to be sent to the Chambers of
the Honorable Joseph F. Bianco, and to the Chambers of
the undersigned. Any requests for an extension of time
for filing objections must be directed to Judge Bianco
prior to the expiration of the fourteen (14) day period for
filing objections. Failure to file objections will result in a
waiver of those objections for purposes of appeal. See Thomas
v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435
(1985); see also Johnson v. Woods, 426 Fed.Appx. 10, 11
(2d Cir. 2011) (citing Cephas, 328 F.3d at 107) (“A litigant's
failure to file objections to a magistrate judge's report and
recommendation, even when that litigant is proceeding pro
se, waives any challenge to the report on appeal.”); Savoie
v. Merchants Bank, 84 F.3d 52, 60 (2d Cir. 1996) (citing
McCarthy v. Manson, 714 F.2d 234, 237 n.2 (2d Cir. 1983)).
Defendants' counsel is directed to serve a copy of this
Report and Recommendation upon the pro se Plaintiff
forthwith by overnight mail and first class mail and to file
proof of such service on ECF.
SO ORDERED.
Attachment
UNITED STATES OF AMERICA,
v.
CARLOS VILLAFANE, Defendant.
13-MJ-00445 (DRH)
September 13, 2013
Central Islip, New York
TRANSCRIPT OF CRIMINAL CAUSE FOR INITIAL
APPEARANCE BEFORE THE HONORABLE GARY
R. BROWN UNITED STATES MAGISTRATE JUDGE
APPEARANCES:
For the Government: UNITED STATES ATTORNEY
BY: LARA TREINIS GATZ, ESQ. ASSISTANT U.S.
ATTORNEY
For the Defendant: GLENN OBEDIN, ESQ. 320 Carleton
Avenue #2500 Central Islip, New York 11722
*25 Court Transcriber: SHARI RIEMER, CET-805
TypeWrite Word Processing Service 211 N. Milton Road
Saratoga Springs, New York 12866
Proceedings recorded by electronic sound recording,
transcript produced by transcription service
(Proceedings began at 3:56 p.m.)
THE CLERK: Calling Case 13-MJ-445, U.S. v. Carlos
Villafane.
Counsel, please state your appearances.
MS. GATZ: Good afternoon, Your Honor. Lara Treinis Gatz
for the United States.
THE COURT: Good to see you, Ms. Gatz.
MS. GATZ: You too, Your Honor.
MR. OBEDIN: Good afternoon, Your Honor. Glenn Obedin
for Mr. Villafane.
THE COURT: Mr. Obedin, how are you, sir?
MR. OBEDIN: I'm fine. Thank you.
THE COURT: Ms. Gatz, we're here on initial appearance; is
that right?
MS. GATZ: Yes, Your Honor.
THE COURT: All right. Good. So, Mr. Villafane, I understand
we're here to go through some of your rights, talk about the
complaint, talk about the propriety of bail if any. But the first
question I have for you is have you spoken to your attorney,
have you had enough time to talk to Mr. Obedin about what's
going on here?
THE DEFENDANT: Yes, sir.
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THE COURT: Do you understand what's going on?
THE DEFENDANT: Yes, sir.
THE COURT: Good. So you've been charged in a complaint
with conspiring to distribute oxycodone. Without telling me
whether or not you did it, just tell me whether or not that you
understand that that's what the charge is.
THE DEFENDANT: Yes, sir, I understand, Judge.
THE COURT: So let's talk about statements. First of all,
you have the right to be represented by counsel. I find that
you do not have sufficient assets to afford counsel. So we
appointed Mr. Obedin, a fine member of the bar to defend you
in this action and the court will pay for his services. Do you
understand that?
THE DEFENDANT: Yes, sir, I do.
THE COURT: He remains your attorney even though the
court is paying. Do you understand?
THE DEFENDANT: Yes, sir.
THE COURT: If at any time you happen to come into some
money and you want to hire your own attorney, you have that
right too. Do you understand that?
THE DEFENDANT: Yes, sir, I do.
THE COURT: Very good. So let's go back to statements.
So you're not required to make any statements about the
matters charged in the complaint to anyone. If you've made
a statement in the past you have the right—you don't have to
continue that. If you start one in the future you don't have to
—you can stop at any time. You simply put up your hand and
say I don't want to talk about this. Do you understand that?
THE DEFENDANT: Yes, sir, I do.
THE COURT: The reason we make a big deal about
statements is because the statements that you make can be
used against you in the trial of this matter. Do you understand?
THE DEFENDANT: Yes, sir, I do.
THE COURT: And of course the fact that I say don't talk to
anybody doesn't mean don't talk to Mr. Obedin. You should
talk to your attorney. You understand that, right?
THE DEFENDANT: Yes, sir.
THE COURT: All right. Good. Very good. Ms. Gatz, what is
the Government's position on bail?
MS. GATZ: Your Honor, the Government is asking for a
permanent order of detention in this matter. The defendant
has what I can only describe as a very lengthy criminal
history. He also is a chronic substance abuser. He currently
is attending a methadone maintenance program. His heroin
problem extends back it looks like over a ten-year period.
*26 Given a combination of the instant offense, his prior
arrests and convictions, his substance abuse history and
his history of failing to comply with court directives,
specifically violations of probation and parole and release, the
Government is asking for a permanent order of detention.
I just note this is a presumption case.
THE COURT: That was my next question, Ms. Gatz. You
predicted that very well.
Mr. Obedin, what do you have to say?
MR. OBEDIN: Yes. Thank you, Your Honor. I had an
opportunity to speak to Mr. Villafane. We do not have any
type of bail package to present at this time. So I will just ask
that we retain our right to present a package if one becomes
available.
THE COURT: All right. Very good. I find that the defendant
has not rebutted the presumption in this case. I also find that I
agree with Pretrial Services that no condition or combination
of conditions that have been presented to the court would
assure the defendant's return and the safety of the community.
However, I note that this is without prejudice to presenting a
bail package should one become available.
MS. GATZ: Your Honor, I ask that you note to the jail that
he continued to receive methadone as necessary or at least
be screened to see if that's necessary given that he's regularly
taking methadone.
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THE COURT: That's an excellent idea and while we're on that
subject and I'm doing a medical order anyway, Mr. Obedin,
is there any other medical conditions that I should alert the
jail to?
MR. OBEDIN: Yes. Thank you, Judge. Ms. Gatz jumped in
before I had an opportunity and I thank her. Mr. Villafane also
has a series of medical issues. He has various metal plates and
screws within his body that still give him trouble. He indicates
that his left wrist is broken.
THE COURT: Currently broken?
MR. OBEDIN: Currently broken he indicates. I'd certainly
like that checked when he gets to the facility.
THE COURT: I'm going to note there's a wrist injury because
I—
MR. OBEDIN: Yes, thank you. And whatever medication
along with the methadone would be appropriate for Mr.
Villafane given his various physical conditions.
THE COURT: Any other medications?
MS. GATZ: It appears he's still taking oxycodone.
MR. OBEDIN: Well, Mr. Villafane does have diabetes. He
does take medicine for that.
THE COURT: All right. So I'll note diabetes. I'm not going to
suggest that they give him oxycodone. I don't think that may
be the recommended course but that's just my guess.
So I'll send over a medical evaluation order which will alert
the jail authorities to those various issues.
What is your preference concerning a preliminary hearing?
MR. OBEDIN: We will waive that, Your Honor.
THE COURT: All right. Mr. Villafane, just to make sure
you understand. The Government is required to go to what's
called a preliminary hearing to present certain evidence. Your
attorney is suggesting that you're willing to waive that. Is that
right, sir?
THE DEFENDANT: Yes, sir.
THE COURT: Very good. So that will be waived.
Was there any property seized at the time of arrest?
MS. GATZ: My understanding, Your Honor, is that the
officers arrested him in his apartment. So I don't believe there
was any property on his person and I'll confirm that.
Just his belt, Your Honor.
THE COURT: Okay. Mr. Villafane, did they take anything
from you when they arrested you?
*27 THE DEFENDANT: No, sir.
THE COURT: Very good. Anything else we need to do today,
Ms. Gatz?
MS. GATZ: Nothing from the Government, Your Honor.
Thank you.
MR. OBEDIN: Nothing further, Your Honor. Thank you.
THE COURT: Good luck to you, sir. We're adjourned.
(Proceedings concluded at 4:02 p.m.)
* * * * *
I certify that the foregoing is a court transcript from an
electronic sound recording of the proceedings in the above-
entitled matter.
____________________
Shari Riemer, CET-805
Dated: August 1, 2017
All Citations
Not Reported in Fed. Supp., 2017 WL 4179855
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Villafane v. Sposato
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 2:16-CV-03674
Villafane v. Sposato et al
— E.D.N.Y. June 24, 2016 Docket
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Villafane v. Sposato
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History (2)
Direct History (2)
1. Villafane v. Sposato
2017 WL 4179855 , E.D.N.Y. , Aug. 22, 2017
Report and Recommendation Adopted by
2. Villafane v. Sposato
2017 WL 4157220 , E.D.N.Y. , Sep. 15, 2017
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 247 of 529

Villafane v. Sposato
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
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McRae v. Gentile, Not Reported in Fed. Supp. (2015)
2015 WL 7292875
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Overruling Risk
Overruling Risk Darnell v. Pineiro, 2nd Cir., February 21, 2017
2015 WL 7292875
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Troy MCRAE, Plaintiff,
v.
C.O. GENTILE, et al., Defendants.
9:14–CV–00783 (GLS/TWD)
|
Signed October 20, 2015
Attorneys and Law Firms
Troy McRae, 06–A–3212, Southport Correctional Facility,
P.O. Box 2000, Pine City, NY 14871, pro se.
Hon. Eric T. Schneiderman, Attorney General for the State of
New York, Cathy Y. Sheehan, Esq., of Counsel, The Capitol,
Albany, NY 12224, for Defendants
ORDER AND REPORT–RECOMMENDATION
THÉRÈSE WILEY DANCKS, United States Magistrate
Judge
*1 This pro se prisoner civil rights action, commenced
by Plaintiff Troy McRae pursuant to 42 U.S.C. § 1983,
has been referred to me for Report and Recommendation
by the Honorable Gary L. Sharpe, United States District
Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule
72.3(c). Plaintiff claims that Defendants have violated his
Eighth Amendment right to be free from cruel and unusual
punishment by subjecting him to excessive force, failing
to intervene in the use of excessive force, and deliberate
indifference to his serious medical needs. (Dkt. No. 37.)
Currently pending before the Court is a motion to dismiss
Plaintiff's Amended Complaint (Dkt. No. 43) for failure to
state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6), as to Defendants Peters, Gifford, McConnell, and
Graham. 1 Plaintiff opposes the motion. (Dkt. No. 47.) For
the reasons that follow, I recommend that Defendants' motion
be granted in part and denied in part.
1 Plaintiff's Amended Complaint names eleven
Defendants, including the four moving to dismiss
here. Defendant Gentile has not moved to dismiss
the excessive force claim that Plaintiff alleges
in the Amended Complaint. The remaining six
Defendants in the Amended Complaint are other
Corrections Officers who have not yet been served.
(Dkt. No. 37 at ¶ 1.)
I. BACKGROUND
The following facts are derived from the face of the Plaintiff's
Amended Complaint (Dkt. No. 37) and are accepted as true
for the purposes of deciding the pending motion to dismiss.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Plaintiff alleges that on May 2, 2012, Defendant Corrections
Officer Gentile (“CO Gentile”) pinned his hands against
the iron bars of a cell and repeatedly punched him. (Dkt.
No. 37 at ¶ 13.) CO Gentile, along with Corrections
Officers Peters (“CO Peters”) and Gifford (“CO Gifford”)
and other unidentified Corrections Officers, then brought
Plaintiff to a single room. Id. at ¶ 14. There, CO Gentile
battered Plaintiff for fifteen minutes while CO Peters and CO
Gifford “looked on ... with delight.” Id. at ¶ 15–16. Plaintiff
immediately made Defendant Corrections Officer McConnell
(“CO McConnell”) aware of the injuries he sustained as a
result of the incident while CO McConnell was on duty
near Plaintiff's cell. Id. at ¶ 20. However, CO McConnell
ignored Plaintiff's request for medical attention. Id. Plaintiff
made Defendant Superintendent Graham (“Graham”) aware
of the incident through the prison's administrative grievance
procedure, but to no avail. Id. at ¶ 18.
In Plaintiff's memorandum in opposition to the present
motion, Plaintiff adds the allegation that Defendant Graham
failed to “properly train and supervise his subordinate
officers,” and that if the Corrections Officers who committed
the constitutional violations had been properly trained to
handle prisoners, then the alleged assault would not have
happened. (Dkt. No. 47–1 at 9.)
II. LEGAL STANDARD GOVERNING MOTIONS TO
DISMISS FOR FAILURE TO STATE A CLAIM
A defendant may move to dismiss a complaint on the ground
that the complaint fails to state a claim on which relief can
be granted. Fed.R.Civ.P. 12(b)(6). In order to state a claim
on which relief can be granted, a complaint must contain,
inter alia, “a short and plain statement of the claim showing
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McRae v. Gentile, Not Reported in Fed. Supp. (2015)
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that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The
requirement that a plaintiff “show” that he or she is entitled to
relief means that a complaint “must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)) (emphasis added). “Determining whether a complaint
states a plausible claim for relief ... requires the ... court to
draw on its judicial experience and common sense.... [W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged—but it has not shown—that the pleader is entitled to
relief.” Id. at 679 (internal citation and punctuation omitted).
*2 “In reviewing a complaint for dismissal under Rule 12(b)
(6), the court must accept the material facts alleged in the
complaint as true and construe all reasonable inferences in the
plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d
Cir.1994) (citation omitted). Courts are “obligated to construe
a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72
(2d Cir.2009) (citation omitted). However, “the tenet that a
court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 555).
Where a party is proceeding pro se, the court is obliged to
“read [the pro se party's] supporting papers liberally, and ...
interpret them to raise the strongest arguments that they
suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994);
see also Harris, 572 F.3d at 72 (courts remain obligated to
construe pro se complaints liberally even after Twombly ).
Where a pro se complaint fails to state a cause of action, the
court generally “should not dismiss without granting leave to
amend at least once when a liberal reading of the complaint
gives any indication that a valid claim might be stated.” Cuoco
v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000) (citation and
internal quotation marks omitted). An opportunity to amend is
not required where “the problem with [the plaintiff's] causes
of action is substantive” such that “better pleading will not
cure it.” Id. (citation omitted).
III. ANALYSIS
A. CO Peters and CO Gifford
Plaintiff claims that CO Peters and CO Gifford violated his
Eighth Amendment right to be free from excessive force by
their failure to intervene while he was being beaten by CO
Gentile and an unnamed Corrections Officer. (Dkt. No. 37 at
¶ 28.)
“The Eighth Amendment requires prison officials to take
reasonable measures to guarantee the safety of inmates in
their custody.” Hayes v. New York City Dept. of Corrs., 84
F.3d 614, 620 (2d Cir.1996) (citing Farmer v. Brennan, 511
U.S. 825, 832 (1994)). Law enforcement officials, including
prison officials, can be held liable under § 1983 for failing to
intervene in a situation where another official is violating an
inmate's constitutional rights, including the use of excessive
force, in their presence. Curley v. Vill.of Suffern, 268 F.3d
65, 72 (2d Cir.2001); see also Anderson v. Branen 17 F.3d
552, 557 (2d Cir.1994) (prison officials' Eighth Amendment
duty to take reasonable measures to guarantee the safety
of inmates in their custody includes a duty to protect
inmates from harm threatened by other officers). A state
actor can be held liable for failure to prevent another state
actor from committing a constitutional violation if “(1) the
officer had a realistic opportunity to intervene and prevent
the harm; (2) a reasonable person in the officer's position
would know that the victim's constitutional rights were being
violated; and (3) the officer does not take reasonable steps
to intervene.” Jean Laurent v. Wilkinson, 540 F.Supp.2d 501,
512 (S.D.N.Y.2008), aff'd, 461 Fed.Appx. 18 (2012).
The reasonable opportunity element is an issue of fact to
be decided by the jury, unless there is only one possible
reasonable conclusion from the evidence. Anderson, 17
F.3d at 557. Generally, a reasonable opportunity on the
part of the corrections officer will not be found if the
alleged constitutional violation was sudden or brief. Tafari v.
McCarthy, 714 F.Supp.2d 317, 342 (N.D.N.Y.2010). Courts
in this District have found the reasonable knowledge element
present in cases involving beatings by other corrections
officers. Cusamano v. Sobek, 604 F.Supp.2d 416, 428
(N.D.N.Y.2009).
*3 Defendant contends that Plaintiff has only alleged
“conclusory facts as to CO Peters and CO Gifford” (Dkt.
No. 43–1 at 3), referring to the allegation in the Amended
Complaint that the two “looked on ... with delight” (Dkt. No.
37 at ¶ 16), while CO Gentile and another Corrections Officer
beat him. Id. at ¶ 15. The Court disagrees. If all facts that
Plaintiff has alleged in the Amended Complaint are assumed
true for the purposes of the present motion, then CO Peters
and CO Gifford stood by for fifteen minutes and chose to do
nothing while Plaintiff was dragged to a room. Id. at ¶ 15–
16 There, Plaintiff was continuously punched, kicked, and
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choked by two other corrections officers, in violation of his
Eighth Amendment right to be free from excessive force. Id.
at ¶ 15. Therefore, the Amended Complaint alleges sufficient
facts that, taken as true, give rise to the reasonable inference
that Defendants CO Peters and CO Gifford failed to intervene
under § 1983. Accordingly, I recommend that Defendants'
Rule 12(b)(6) motion to dismiss be denied as to Defendants
CO Peters and CO Gifford.
B. CO McConnell
Plaintiff alleges that Defendant CO McConnell, by denying
him medical care, showed deliberate indifference to his
serious medical needs in violation of his Eighth Amendment
right to be free from cruel and unusual punishment. (Dkt. No.
37 at ¶ 29.) See Farmer, 511 U.S. at 832 (1994).
A claim that prison officials have intentionally disregarded
an inmate's serious medical needs has both objective and
subjective elements. See Caiozzo v. Koreman, 581 F.3d 63,
72 (2d Cir.2009). “The plaintiff must show that she or
he had a serious medical condition and that it was met
with deliberate indifference.” Id. at 72 (citation and internal
quotation marks omitted). “The objective ‘medical need’
element measures the severity of the alleged deprivation,
while the subjective ‘deliberate indifference’ element ensures
that the defendant prison official acted with a sufficiently
culpable state of mind.” Smith v. Carpenter, 316 F.3d 178,
183–84 (2d Cir.2003) (citations omitted).
A “serious medical condition” is “a condition of urgency,
one that may produce death, degeneration, or extreme pain.”
Nance v. Kelly, 912 F.2d 605, 607 (2d Cir.1990) (Pratt J.
dissenting) (citations omitted), accord Hathaway v. Coughlin,
37 F.3d 63, 66 (2d Cir.1994); Chance v. Armstrong, 143
F.3d 698, 702 (2d Cir.1998). Relevant factors to consider
when determining whether an alleged medical condition is
sufficiently serious include, but are not limited to: (1) the
existence of an injury that a reasonable doctor or patient
would find important and worthy of comment or treatment;
(2) the presence of a medical condition that significantly
affects an individual's daily activities; and (3) the existence of
chronic and substantial pain. Chance, 143 F.3d at 702–03.
Under the subjective element, medical mistreatment rises to
the level of deliberate indifference only when it ‘involves
culpable recklessness, i.e., an act or a failure to act ... that
evinces ‘a conscious disregard of a substantial risk of serious
harm.’ ” Id. at 703 (quoting Hathaway, 99 F.3d at 553).
“Non-medical personnel engage in deliberate indifference
where they intentionally delay access to medical care when
the inmate was in extreme pain and had made his personal
problem known to the attendant prison personnel.” Bauman v.
Walsh, 36 F.Supp.2d 508, 512 (N.D.N.Y.1999) (citation and
internal quotation marks omitted).
Defendant contends that Plaintiff's claim should be dismissed
as to CO McConnell. (Dkt. No. 43–1 at 3.) In support
of this argument, Defendant points out that the Amended
Complaint merely recites the elements of a § 1983 claim
of this category, and does not “describe the events with
nearly enough specificity” to support the claim. Id. at 4.
The Court agrees. The Amended Complaint is devoid of
facts plausibly showing that Plaintiff had an objectively
serious medical condition as required to satisfy the objective
prong of the Eighth Amendment inquiry. (Dkt. No. 37 at
¶ 4.) In fact, the Amended Complaint includes no factual
allegations describing injuries allegedly sustained as a result
of the beating. (See Dkt. No. 37.) As for the subjective
element, Plaintiff's Amended Complaint alleges only that
CO McConnell was “made aware of plaintiff's situation, but
refused to assist plaintiff, in receiving emergency medical
help,” and that CO McConnell “ignored [Plaintiff's] request
for [emergency medical help.]” Id. at ¶ 20. Plaintiff has not
set forth facts plausibly showing that CO McConnell acted
with a “conscious disregard of a substantial risk of serious
harm.” Chance, 143 F.3d at 702–03. Plaintiff has failed to
assert factual allegations plausibly showing serious injury
and CO McConnell's awareness of the serious injury. Id.
Accordingly, I recommend that Defendant's Rule 12(b)(6)
motion to dismiss be granted with leave to amend as to
Defendant CO McConnell.
C. Superintendent Graham
1. Personal Capacity
*4 Under Second Circuit precedent, “ ‘personal involvement
of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.’ ” Wright
v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (quoting Moffitt
v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991)).
In order to prevail on a § 1983 cause of action against an
individual, a plaintiff must show some “tangible connection”
between the unlawful conduct and the defendant. Bass v.
Jackson, 790 F.2d 260, 263 (2d Cir.1986). If the defendant is
a supervisory official, a mere linkage to the unlawful conduct
through the prison chain of command (i.e., under the doctrine
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of respondeat superior) is insufficient to show his or her
personal involvement in that unlawful conduct. Polk Cnty. v.
Dodson, 454 U.S. 312, 325 (1981); Richardson v. Goord, 347
F.3d 431, 435 (2d Cir.2003) (per curiam); Wright, 21 F.3d at
501; Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.1985) (per
curiam). In other words, supervisory officials may not be held
liable merely because they held positions of authority. Black
v. Coughlin, 76 F.3d 72, 74 (2d Cir.1996) (citations omitted).
Rather, supervisory personnel may be considered personally
involved if they: (1) directly participated in the violation; (2)
failed to remedy that violation after learning of it through a
report or appeal; (3) created, or allowed to continue, a policy
or custom under which the violation occurred; (4) had been
grossly negligent in managing subordinates who caused the
violation; or (5) exhibited deliberate indifference to the rights
of inmates by failing to act on information indicating that
the violation was occurring. Colon v. Coughlin, 58 F.3d 865,
873 (2d Cir.1995) (citations omitted). Here, Plaintiff alleges
the second and fifth Colon categories, both of which turn on
Defendant Graham's denial of Plaintiff's grievance.
District courts in the Second Circuit are split on whether
a prison superintendent's review and denial of a prisoner's
grievance supports a finding of personal involvement. See
Burton v. Lynch, 664 F.Supp.2d 349, 360 (S.D.N.Y.2009).
Some courts have held that merely affirming the denial
of a grievance does not constitute personal involvement.
Id. (citing Warren v. Goord, 476 F.Supp.2d 407, 413
(S.D.N.Y.2007)). Those courts require that the supervisor
undertake an investigation into the alleged constitutional
violation in order for a finding of personal involvement to
be proper. Burton, 664 F.Supp.2d at 360 (citing Warren,
476 F.Supp.2d at 413). Other courts have found that a
“detailed and specific” response to the allegations in a
grievance is necessary to warrant a finding of personal
involvement. Burton, 664 F.Supp.2d at 360 (quoting Brooks v.
Chappius, 450 F.Supp.2d 220, 226 (W.D.N.Y.2006)). Finally,
some courts have held that the constitutional violation that
is the subject of the grievance must be ongoing, rather
than a single isolated incident, such that the supervisor is
capable of directly remedying the violation. Burton, 664
F.Supp.2d at 360 (citing Vega v. Artus, 610 F.Supp.2d 185,
198 (N.D.N.Y.2009)).
In this case, the Court does not need to adopt a
particular position, because the Amended Complaint does not
sufficiently allege any of the above requirements for a finding
of personal involvement. The Amended Complaint alleges
that Defendant Graham is the warden of Auburn Correctional
Facility, that he “is responsible for receiving all grievances”
filed at Auburn (Dkt. No. 37 at ¶ 8), and that he failed
to discipline the individuals who allegedly participated in
the constitutional violations of which Plaintiff complained
through the grievance process. Id. at ¶¶ 18, 30. There is
no allegation in the Amended Complaint that Defendant
Graham undertook an investigation into the alleged violations
of Plaintiff's constitutional rights or that Defendant Graham
provided a detailed response to any grievance Plaintiff filed.
Plaintiff has similarly failed to allege an ongoing violation of
his constitutional rights by prison employees. Plaintiff only
refers to one isolated incident as the basis for Defendant
Graham's personal involvement in the alleged violation of
his constitutional rights. (Dkt. No. 37 at ¶ 30.) Defendant
Graham had no ability to directly remedy the alleged violation
at the time Plaintiff submitted his grievance. See Burton,
664 F.Supp.2d at 362 (holding that a grievance alleging one
beating with no reference to a continued threat of injury
failed to allege an ongoing constitutional violation); Young,
15 F.Supp.3d at 193 (holding that a grievance alleging
one incident of deliberate indifference to serious medical
needs failed to allege an ongoing constitutional violation).
Accordingly, I recommend that Defendant's motion to dismiss
the complaint pursuant to Rule 12(b)(6) should be granted
with leave to amend as to Defendant Graham in his personal
capacity.
*5 In his memorandum in opposition to the present motion
to dismiss, Plaintiff adds the allegation that Defendant
Graham's negligent training and supervision of the Defendant
Corrections Officers caused the Plaintiff's injuries. (Dkt. No.
47–1 at 9.) Aside from this conclusory allegation about
the training and supervision of the Corrections Officer
Defendants, Plaintiff provides no facts to support Defendant
Graham's personal involvement in the alleged assault. “Vague
and conclusory allegations that a supervisor” negligently
failed to train or supervise “subordinate employees” are not
sufficient to establish personal involvement so as to give
rise to personal liability. White v. Fischer, No. 9:09–CV–240
(DNH/DEP), 2010 WL 624081, at *6, 2010 U.S. Dist. LEXIS
15492, at *19 (N.D.N.Y. Feb. 18, 2010) 2 ; see also Pettus
v. Morgenthau, 554 F.3d 293, 300 (2d Cir.2009) (vague and
conclusory allegations that a supervisor failed to properly
monitor the actions of subordinate employees do not suffice
to establish the requisite personal involvement and support a
finding of liability).
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2 The Court will provide a copy of the unpublished
decision to Plaintiff pursuant to LeBron v. Sanders,
557 F.3d 76 (2d Cir.2009) (per curiam).
Due to the absence of factual allegations by Plaintiff to
make a facially plausible showing of personal involvement
by Defendant Graham related to the alleged assault, I
recommend that the motion to dismiss the Amended
Complaint be granted as to this claim as well. However, in
deference to Plaintiff's pro se status and to the fact that he has
not had the opportunity to make this allegation in a formal
complaint, I also recommend that the dismissal be without
prejudice, and that Plaintiff be granted leave to amend.
2. Official Capacity
The Eleventh Amendment bars suits for damages against state
officials acting in their official capacities. See Severino v.
Negron, 996 F.2d 1439, 1441 (2d Cir.1993) (“[I]t is clear that
the Eleventh Amendment does not permit suit ... for money
damages against state officials in their official capacities.”).
Moreover, the Eleventh Amendment bars official capacity
suits for declaratory relief where the declaratory relief
requested would serve only to declare a past action a violation
of the law. Green v. Mansour, 474 U.S. 64, 74, 106 S.Ct.
423, 88 L.Ed.2d 371 (1985). All DOCCS employees are state
officials for the purposes of the Eleventh Amendment. See,
e.g., Davis v. New York, 316 F.3d 93, 101 (2d Cir.2002).
Graham is a DOCCS employee, and Plaintiff has requested
both declaratory judgment and monetary damages against
him. (Dkt. No. 37 at pp. 7–8.) Specifically, Plaintiff asks the
Court to issue a declaratory judgment stating that Graham
violated Plaintiff's constitutional rights through his failure
to prevent prison employees from physically abusing the
prisoners. Id. at p. 7. Because Graham is a DOCCS employee,
and because of the retroactive nature of the relief Plaintiff
requests, I recommend Defendants' motion to dismiss under
Rule 12(b)(6) for failure to state a claim be granted with
prejudice as to Plaintiff's claim for money damages and
declaratory relief under § 1983 against Graham in his official
capacity. While leave to amend should ordinarily be freely
given, in these circumstances “better pleading will not cure”
Plaintiff's substantive problem with the cause of action against
Graham in his official capacity. Cuoco, 222 F.3d at 112
(citation omitted).
ACCORDINGLY, it is
RECOMMENDED that Defendants' motion to dismiss (Dkt.
No. 43) for failure to state a claim be GRANTED with leave
to amend as to Defendant CO McConnell and Defendant
Superintendent Graham in his personal capacity; and it is
further
RECOMMENDED that Defendants' motion to dismiss (Dkt.
No. 43) for failure to state a claim be GRANTED without
leave to amend as to Defendant Superintendent Graham in his
official capacity; and it is further
*6 RECOMMENDED that Defendants' motion to dismiss
(Dkt. No. 43) for failure to state a claim be DENIED as to
Defendant CO Peters and Defendant CO Gifford; and it is
further
ORDERED that the Clerk provide Plaintiff with a copy of the
unpublished decision in White v. Fischer, No. 9:09–CV–240
(DNH/DEP), 2010 WL 624081 (N.D.N.Y. Feb. 18, 2010).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have
fourteen days within which to file written objections
to the foregoing report. Such objections shall be filed
with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85 (2d Cir.1993) (citing Small v. Sec'y of Health and
Human Servs., 892 F.2d 15 (2d Cir.1989) (per curiam)); 28
U.S.C. § 636(b)(1) (Supp.2013); Fed.R.Civ.P. 72, 6(a).
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All Citations
Not Reported in Fed. Supp., 2015 WL 7292875
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McRae v. Gentile
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Filings (1)
Title PDF Court Date Type
1. Docket 9:14cv00783
MCRAE v. GENTILE ET AL
— N.D.N.Y. June 27, 2014 Docket
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McRae v. Gentile
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History (2)
Direct History (2)
1. McRae v. Gentile
2015 WL 7292875 , N.D.N.Y. , Oct. 20, 2015
Report and Recommendation Adopted by
2. McRae v. Gentile
2015 WL 7300540 , N.D.N.Y. , Nov. 18, 2015
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McRae v. Gentile
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Kosmidis v. Port Authority of New York and New Jersey, Not Reported in Fed. Supp....
2021 WL 4442812
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2021 WL 4442812
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Constantino KOSMIDIS, Plaintiff,
v.
PORT AUTHORITY OF NEW YORK
AND NEW JERSEY, et al., Defendants.
18-cv-8413 (AJN)
|
Signed 09/28/2021
Attorneys and Law Firms
Jeffrey Adam Rothman, Jeffrey A. Rothman, Attorney at
Law, New York, NY, for Plaintiff.
Cheryl Nancy Alterman, Law Office of James M. Begley,
Natalie Deneen Russell, The Port Authority of NY & NJ, New
York, NY, for Defendants The Port Authority of New York
and New Jersey, Bernard Buckner, Steven O'Shea, Alexander
Velez, Jr., Joseph Riccardi, Jr.
MEMORANDUM OPINION & ORDER
ALISON J. NATHAN, District Judge:
*1 This action arises out of an arrest that took place
on September 15, 2017. Plaintiff Constantino Kosmidis
sues Defendants the Port Authority of New York and New
Jersey, Port Authority Police Sergeant Bernard Buckner,
Port Authority Police Officer Steven O'Shea, Port Authority
Police Officer Alexander Velez, Jr., and Port Authority Police
Officer Joseph Riccardi, Jr. alleging violations of state and
federal law. Presently before the Court is Defendants’ motion
for summary judgment. For the reasons that follow, the
motion is GRANTED in part and DENIED in part.
I. Background
The following facts are drawn from the parties’ statements
made pursuant to Local Civil Rule 56.1 and are undisputed
unless otherwise noted.
On September 15, 2017, Kosmidis and his wife boarded a
flight from Athens, Greece, to the John F. Kennedy Airport
in New York City. Dkt. No. 98, Pl.’s 56.1 Resp., ¶ 7.
Konstantinos Atsalis was the captain, and Carmen Dunphy
and Sharon Dugan were flight attendants on the flight. Id. ¶¶
13–15.
While on that flight, Kosmidis got in a verbal altercation with
another passenger. Id. ¶ 11. 1 He also walked around with an
unlit cigarette in his mouth, and at various points he attempted
to enter the first-class area. Id. ¶¶ 19–24. Certain details of
what occurred on the flight are disputed, but as relevant here,
Captain Atsalis, having been informed of Kosmidis's behavior
on the flight, opted to request that Port Authority Police meet
the flight upon arrival. Id. ¶¶ 40–42; see also id. ¶¶ 25–39.
1 Kosmidis objects that whatever happened on the
flight is immaterial, but he otherwise admits that an
altercation occurred.
Defendants O'Shea and Riccardi were called to respond.
Id. ¶ 47. Defendant Velez also responded, having heard a
radio transmission regarding a “disorderly passenger” on the
flight. Id. ¶ 48. After the flight landed, Captain Atsalis, along
with Dunphy and Dugan, met with Port Authority officers
to provide more information regarding the situation. Id. ¶
49. According to the Defendants, after arriving at the gate,
O'Shea observed Defendant Buckner on the scene and was
told to remove Kosmidis from the flight. Id. ¶ 53. O'Shea and
Riccardi then boarded the plane and escorted Kosmidis from
the flight. Id. ¶ 54.
The parties disagree as to what happened next. According to
Kosmidis, he was “attacked” by four or five police officers
immediately upon exiting the “accordion-like jetbridge” that
led from the plane, and he claims that he was stepped on, hit,
and rear-handcuffed. Id. ¶¶ 55–57. The Defendants contend,
though, that Kosmidis was yelling, cursing, and moving
his arms around at the officers when they approached him,
that he attempted to light a cigarette as officers asked for
his information and travel documents, and that he appeared
intoxicated. Id. ¶¶ 55–68. Kosmidis does not deny that he
was speaking loudly, but he asserts that he was not yelling,
instead attributing his loud voice to his hearing disability, and
he denies that he attempted to light a cigarette or that he was
intoxicated. Id. The Defendants contend that Kosmidis was
cursing at them, and that he resisted when they instructed
him that he could not smoke; Kosmidis counters that he only
cursed at the officer after they cursed at him, and that the
arrest took place before he started cursing. The Defendants
also claim that as he was exiting the jetbridge, Kosmidis tried
to walk up the ramp past Officer O'Shea. Kosmidis denies
this, as well. Id. ¶ 65.
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*2 The circumstances of the arrest are also contested.
According to the Defendants, Sergeant Buckner was
debriefed by the Delta crew before returning to Kosmidis,
and when he returned and ordered Kosmidis not to light a
cigarette, Kosmidis “lunged” at Buckner. Id. ¶ 69. And they
claim that Officer Velez grabbed Kosmidis's arm in response
after believing Kosmidis was going to attack Buckner,
explaining that Velez handcuffed Kosmidis in order to avoid
such an attack. Id. ¶¶ 69–72. Following this, the officers
restrained Kosmidis as Kosmidis resisted arrest, with O'Shea
and Velez falling to the ground in the process. Id. ¶¶ 73–77.
After sitting Kosmidis upright, the Defendants claim, Velez
noted that Kosmidis was bleeding and had a red bruise on
his face. Id. ¶¶ 78–79. They then claim that Velez tended to
Kosmidis's wounds and asked if Kosmidis needed medical
attention. Id. ¶¶ 80–81. The Defendants claim that Kosmidis
declined help and continued to resist and insult them. Id. ¶¶
82–84.
According to Kosmidis, he never lunged toward or made
any aggressive move toward any police officers. He asserts
instead that he was not resisting and that the officers attacked
him unprompted. Id. ¶¶ 69–84. While Kosmidis concedes that
he cursed at the officers, he denies ever physically resisting.
Id. Kosmidis also contends that the injuries were far more
serious than Defendants’ description, and he denies that any
officers ever tended to him or offered him any help; he
instead claims that he requested an ambulance but that he was
ignored. Id. ¶¶ 78–82, 86.
After the arrest, Officer O'Shea was instructed to write
a summons for disorderly conduct. Id. ¶ 85. Kosmidis
then spoke to Sergeant Buckner, who opted to discard the
summons by tearing it up in front of Plaintiff. According to the
Defendants, Buckner exercised his discretion to do so because
Kosmidis calmed down and began following the officers’
instructions. Id. ¶¶ 88–89. Kosmidis's handcuffs were then
removed. Id. ¶ 90. All told, Kosmidis was in the custody of
the Defendants for around 45 minutes to an hour. Id. ¶ 91.
Kosmidis asserts that on the date of the incident, he was
afflicted by a hearing impairment that made it difficult for
him to understand what he was being told by the officers. He
claims that for over a decade prior to 2011, he wore hearing
aids due to this impairment. Around 2011, however, Kosmidis
stopped wearing hearing aids because he could no longer
afford them. Dkt. No. 99, Pl.’s 56.1 Statement, ¶¶ 103–111.
Thus, he was not wearing hearing aids on the date of the
incident. Id. The Defendants object to Kosmidis's testimony
that his hearing was impaired on the date of the incident,
and they more generally claim that Kosmidis's testimony
regarding his hearing issues is irrelevant to the case. Dkt. No.
106, Def. 56.1 Opp'n, ¶¶ 103–111.
II. Legal Standard
Summary judgment shall be granted “if the movant shows
that 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). The court must “construe the facts in the
light most favorable to the non-moving party and resolve all
ambiguities and draw all reasonable inferences against the
movant.”Delaney v. Bank of Am. Corp., 766 F.3d 163, 167 (2d
Cir. 2014) (internal quotation marks and alterations omitted).
If the court determines that “the record taken as a whole
could not lead a rational trier of fact to find for the non-
moving party, there is no genuine issue for trial” and summary
judgment should be granted to the moving party. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (internal quotation marks and citation omitted).
The movant bears the initial burden of presenting evidence on
each material element of its claim or defense and demonstrate
that he is entitled to relief as a matter of law. SeeVt. Teddy
Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.
2004). But when the burden of proof at trial would fall on the
non-moving party, the moving party may meet its burden by
“point[ing] to a lack of evidence ... on an essential element”
of the non-moving party's claim. Simsbury-Avon Preservation
Club, Inc. v. Metacon Gun Club, Inc., 575 F.3d 199, 204
(2d Cir. 2009). There is a genuine issue of material fact if
a reasonable jury could decide in the non-moving party's
favor. Nabisco, Inc. v. Warner-Lambert Co., 220 F.3d 43, 45
(2d Cir. 2000). The Court “is not to weigh the evidence but
is instead required to view the evidence in the light most
favorable to the party opposing summary judgment, to draw
all reasonable inferences in favor of that party, and to eschew
credibility assessments.” Amnesty Am. v. Town of W. Hartford,
361 F.3d 113, 122 (2d Cir. 2004) (internal quotation marks
omitted). To survive a summary judgment motion, the non-
moving party “must come forward with specific evidence
demonstrating the existence of a genuine dispute of material
fact.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir.
2011). In doing so, 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.” Id. (internal quotation marks
and citation omitted).
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III. Discussion
*3 Defendants move for summary judgment on all counts.
For the reasons that follow, that motion is GRANTED in part
and DENIED in part.
A. False Arrest
The Court first addresses Kosmidis's federal and state false
arrest or false imprisonment claims. “A Section 1983 claim
for false arrest, resting on the Fourth Amendment right of an
individual to be free from unreasonable seizures, including
arrest without probable cause, is substantially the same as a
claim for false arrest under New York law.” Weyant v. Okst,
101 F.3d 845, 852 (2d Cir. 1996) (citations omitted); see
alsoDavis v. Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004).
Moreover, “false arrest is a species of false imprisonment,
such that the two share the same elements under New York
law.” SeeShaeed v. City of New York, 287 F.Supp.3d 438, 448
(S.D.N.Y. 2018). The elements of a false imprisonment claim
are: “(1) the defendant intended to confine [the plaintiff], (2)
the plaintiff was conscious of the confinement, (3) the plaintiff
did not consent to the confinement and (4) the confinement
was not otherwise privileged.” Curry v. City of Syracuse, 316
F.3d 324, 335 (2d Cir. 2003) (quoting Weyant, 101 F.3d at
853).
An arrest of a criminal suspect by a law enforcement officer
with probable cause constitutes a “privileged” confinement
for purposes of that analysis. Decker v. Campus, 981 F.
Supp. 851, 856 (S.D.N.Y. 1997). Thus, the existence of
probable cause to arrest is a complete defense to an action
for false arrest when the arrest is conducted by a law
enforcement officer. Weyant, 101 F.3d at 852. Probable cause
exists when at the time of the arrest the officers have
“knowledge or reasonably trustworthy information of facts
and circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be arrested
has committed or is committing a crime.” Weyant, 101 F.3d
at 852. The standard is objective, and the officers’ subjective
beliefs and motivations are irrelevant to that analysis. Whren
v. United States, 517 U.S. 806, 813 (1996). The existence
of probable cause “must be determined on the basis of the
information reasonably available to the arresting officer at the
time of the arrest.” Lowth v. Town of Cheektowaga, 82 F.3d
563, 570 (2d Cir. 1996).
The Defendants claim that the officers had probable cause
to arrest Kosmidis for disorderly conduct. As the Defendants
argue, in New York, a person may be found guilty of
disorderly conduct under a number of different subsections,
including when “with intent to cause inconvenience,
annoyance or alarm, or recklessly creating a risk thereof: (1)
He engages in fighting, tumultuous, or threatening behavior,
or ... (3) In a public place, he uses abusive or obscene
language, or makes an obscene gesture.” SeeNew York Penal
Law, Section 240.20. In the alternative, the Defendants argue
that there is no genuine dispute of material fact that they
are entitled to qualified immunity. The purpose of qualified
immunity is to “give government officials breathing room to
make reasonable but mistaken judgments.” Stanton v. Sims,
571 U.S. 3, 6 (2013) (per curiam) (quoting Ashcroft v. al-
Kidd, 563 U.S. 731, 743 (2011)). In the context of false arrest
claims, “an arresting officer will ... be entitled to qualified
immunity from a suit for damages if he can establish that
there was ‘arguable probable cause’ to arrest.” Escalera v.
Lunn, 361 F.3d 737, 743 (2d Cir. 2004). “Arguable probable
cause” exists “if either (a) it was objectively reasonable for the
officer to believe that probable cause existed, or (b) officers
of reasonable competence could disagree on whether the
probable cause test was met.” Id. (quoting Golino v. City of
New Haven, 950 F.2d 864, 870 (2d Cir. 1991)). “Qualified
immunity from suit for false arrest is in part, therefore, a
matter of second-order reasonableness: an officer is immune
if it was reasonable for him to believe, reasonably, that the
plaintiff was breaking the law.” Posr v. Court Officer Shield
No. 207, 180 F.3d 409, 416 (2d Cir. 1999).
*4 Genuine issues of material fact preclude summary
judgment on these claims. Namely, the Defendants’ argument
that probable cause existed hinges on their version of the
facts. If the Defendants are correct that Kosmidis lunged
at Sergeant Buckner, threatened the officers with violence,
or used abusive or obscene language before being arrested,
a reasonable jury could find that probable cause existed to
arrest him. But Kosmidis's testimony, which is part of the
record, disputes that he ever acted aggressively, threatened
the officers, or physically resisted arrest. Indeed, Kosmidis
contends that he was arrested without provocation and that
he was attacked by the officers from behind. And while
Kosmidis concedes that he cursed at the officers, according
to his testimony he only did so after he was arrested.
SeeFernandez v. City of N.Y., 457 F. Supp. 3d 364, 386–87
(S.D.N.Y. 2020) (“Because the brothers’ verbal altercation on
the sidewalk happened after David's arrest, that altercation
did not provide probable cause for that arrest.”). All of the
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Defendants’ probable cause arguments, that is, rely on the
Court's adoption of contested facts.
The Court's role at the summary judgment stage is not to
step into the factfinding role and to determine how best
to resolve conflicting interpretations about material facts.
Rather, “[a]ssessments of credibility and choices between
conflicting versions of the events are matters for the jury, not
for the court on summary judgment.” Rule v. Brine, Inc., 85
F.3d 1002, 1011 (2d Cir. 1996). There is a limited exception to
the rule that courts may not assess credibility at the summary
judgment stage in “the rare circumstance where the plaintiff
relies almost exclusively on his own testimony, much of
which is contradictory and incomplete.” Jeffreys v. City of
N.Y., 426 F.3d 549, 554 (2d Cir. 2005); see alsoid. at 555
(affirming grant of summary judgment dismissing excessive
force suit brought under 42 U.S.C. § 1983 where the plaintiff
relied exclusively on his own testimony, which was “replete
with inconsistencies and improbabilities”) (internal quotation
marks omitted). The record is clear that Kosmidis relies
primarily on his own testimony to contest the Defendants’
evidence of the facts. Still, the exception described in Jeffreys
is inapplicable here because Kosmidis's testimony is not
internally contradictory or so rife with inconsistencies as
to be facially implausible. SeeFincher v. Depository Tr. &
Clearing Corp., 604 F.3d 712, 726 (2d Cir. 2010) (“Adhering
to the ordinary rule that when the defendant moves for
summary judgment, we construe the evidence in the light
most favorable to the plaintiff and draw all reasonable
inferences in her favor, we decline to conclude at this stage
of the proceedings that Fincher's testimony may be deemed
discredited.” (citation omitted)). In light of this, the Court
cannot agree with the Defendants that they are entitled to
summary judgment. The motion is DENIED as to Kosmidis's
federal and state false arrest and false imprisonment claims.
For the same reason, the Court also cannot determine at
this juncture whether the officers are entitled to qualified
immunity. As noted above, even if probable cause did not
ultimately exist, the individual defendants could still be
entitled to qualified immunity on the basis of “arguable
probable cause,” which turns on whether “a reasonable
police officer in the same circumstances and possessing
the same knowledge as the officer in question could have
reasonably believed that probable cause existed in light of
well-established law.” Cerrone v. Brown, 246 F.3d 194, 202–
03 (2d Cir. 2001) (internal quotation marks omitted) (citation
omitted). The same genuine issues of material fact that
preclude a finding of probable cause govern the arguable
probable cause analysis. If the factfinder ultimately credits
Kosmidis's version of the facts—in which the officers arrested
Kosmidis without prior provocation or warning—the jury
may also conclude that there was no arguable probable cause.
Thus, issues of fact preclude granting summary judgment
to the individual defendants on the false arrest claim on
immunity grounds.
*5 The motion is accordingly DENIED as to the false arrest
and false imprisonment claims.
B. Assault, Battery, and Excessive Force Claims
The Court turns next to the Defendants’ contention that they
are entitled to summary judgment on Kosmidis's § 1983
excessive force claim and his state law assault and battery
claims. Here, too, genuine issues of material fact preclude
summary judgment.
The Supreme Court has held that “claims that law
enforcement officers have used excessive force ... in the
course of an arrest, investigatory stop, or other ‘seizure’
of a free citizen should be analyzed under the Fourth
Amendment and its ‘reasonableness’ standard.” Graham v.
Connor, 490 U.S. 386, 395 (1989). To determine whether
the amount of force used is reasonable, a reviewing court
must take into consideration the “totality of the circumstances
faced by the officer on the scene,” Lennon v. Miller, 66
F.3d 416, 425 (2d Cir. 1995), and assess whether the
officer's actions are “objectively reasonable” in light of the
facts and circumstances confronting them, without regard to
their underlying intent or motivation. Graham, 490 U.S. at
397. New York law regarding assault and battery parallels
this standard. SeeRandolph v. Metropolitan Transportation
Authority, 2018 WL 2943744, *6 (S.D.N.Y. June 12, 2018).
Not all uses of force in the context of an arrest are actionable,
since it is well-settled that “[t]he right to make a lawful arrest
carries with it the right to use reasonable force to effectuate
that arrest.” Lieberman v. City of Rochester, No. 07-CV-6316,
2011 WL 13110345, at *4 (W.D.N.Y. Apr. 29, 2011), aff'd,
558 F. App'x 38 (2d Cir. 2014). Indeed, some degree of force
in the context of a lawful arrest is to be expected, particularly
if the person being arrested resists or attempts to do so.
Sullivan v. Gagnier, 225 F.3d 161, 165–66 (2d Cir. 2000).
But officers do not get carte blanche in such circumstances
to use force; rather, “[t]he force used by the officer must be
reasonably related to the nature of the resistance and the force
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used, threatened, or reasonably perceived to be threatened,
against the officer.” Id.
A number of genuine issues of material fact exists. Most
notably, and as discussed above, there are considerable
issues of material fact regarding the circumstances of the
arrest and whether Kosmidis was acting aggressively or in a
threatening fashion. How the factfinder resolves that question
may ultimately be determinative regarding whether the use of
force, and the amount of force, was proper or excessive. The
Defendants’ contention that Kosmidis “lunged” at Sergeant
Buckner figures prominently in their argument that the use
of force, and the amount of force used, was proper. But that
fact, like other relevant facts (including whether Kosmidis
was threatening the officers and whether he was acting
aggressively in other ways), is contested. And in light of that,
summary judgment is improper.
In addition, the Court rejects the Defendants’ contention that
they are entitled to judgment as a matter of law because
Kosmidis's injuries were de minimis. First, Kosmidis's
testimony asserts that his head was covered in blood, he had
scrapes and bruises on his forehead, nose, eye, and arms,
and that he suffered longer-term injuries including ongoing
pain and dizziness. A reasonable jury could conclude that
Kosmidis's injuries were more than de minimis. In any event,
the Defendants rely on Eighth Amendment jurisprudence for
the rule that de minimis injuries preclude excessive force
liability. 2 But this is not an Eighth Amendment case. Where
plaintiffs allege excessive use in the course of an arrest or
attempted arrest, the excessive force claims are based on the
Fourth Amendment. SeeTierney v. Davidson, 133 F.3d 189,
199 (2d Cir. 1998). The Second Circuit has not definitively
resolved the question of whether excessive force claims
brought under the Fourth Amendment are assessed under
that same rubric, but other circuits have concluded that there
is no de minimis injury requirement in Fourth Amendment
excessive force claims; district courts, meanwhile, are split on
this issue. SeeRizk v. City of New York, 462 F. Supp. 3d 203,
222–24 (E.D.N.Y. 2020) (collecting cases). The Court need
not resolve this question, since genuine issues of material fact
preclude summary judgment.
2 Even in the Eighth Amendment context, courts
have typically distinguished between de minimis
use of force and de minimis injuries; while “a
de minimis use of force will rarely suffice to
state a constitutional claim,” Romano v. Howarth,
998 F.2d 101, 105 (2d Cir. 1993), an Eighth
Amendment claim of excessive force “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.”
United States v. Walsh, 194 F.3d 37, 47–48 (2d Cir.
1999) (cleaned up).
*6 For these reasons, the motion is DENIED as to the
excessive force, assault, and battery claims.
C. Punitive damages
The Defendants next assert that Kosmidis's claim for punitive
damages as directed to the Port Authority must also be
dismissed because the Port Authority as a government entity
is immune from such damages. Kosmidis does not respond
to that section of the Defendants’ brief. But in any event,
the Defendants are correct that as a matter of law, punitive
damages cannot be assessed against the Port Authority. “As
a government entity, the Port Authority is immune from
punitive damages.” Rose v. Port Auth. of New York & New
Jersey, 13 F. Supp. 2d 516, 524 (S.D.N.Y. 1998) (collecting
cases). This is so because the general rule that municipalities
are not subject to punitive damages applies with equal force
to bistate entities like the Port Authority. SeeRose, 13 F. Supp.
2d at 524; see alsoCity of Newport v. Fact Concerts, Inc., 453
U.S. 247, 261 (1981).
Accordingly, summary judgment is GRANTED as to any
claim for punitive damages directed at the Port Authority.
D. Monell claim
The Defendants have moved for summary judgment on
Kosmidis's Section 1983 claims against the Port Authority.
For purposes of § 1983 liability, the Port Authority is treated
as a municipal entity. Mack v. Port Auth. of N.Y. & N.J., 225 F.
Supp. 2d 376, 382 & n.7 (S.D.N.Y. 2002). “[M]unicipalities
may be sued directly under [Section] 1983 for constitutional
deprivations inflicted upon private individuals pursuant to
a governmental custom, policy, ordinance, regulation, or
decision.” Batista v. Rodriguez, 702 F.2d 393, 397 (2d
Cir. 1983) (citing Monell v. Dep't of Soc. Servs., 436
U.S. 658, 690–91 (1978)). Under Monell and its progeny,
“municipalities are subject to liability for Section 1983
claims, not under a theory of respondeat superior, but rather
on the basis that their policies or customs inflicted the alleged
injuries.” Holden v. Port Auth. of New York & New Jersey,
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No. 17-CV-2192 (JGK), 2021 WL 681040, at *7 (S.D.N.Y.
Feb. 22, 2021).
To state a Monell claim for municipal liability under Section
1983, a plaintiff must plausibly allege “(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). The fifth element has two separate requirements:
a plaintiff must plausibly allege both the existence of a
municipal policy and that the policy caused (i.e., was the
“moving force” behind) plaintiff's injury. Id. at 37–38. The
“moving force” requirement is the equivalent of proximate
cause, Cash v. County of Erie, 654 F.3d 324, 341–42 (2d
Cir. 2011), and is generally a question of fact, Jeffes v.
Barnes, 208 F.3d 49, 61 (2d Cir. 2000). The official policy
requirement, meanwhile, may be met by showing “a practice
so persistent and widespread, or permanent and well settled[,]
as to constitute a custom or usage with the force of law and to
imply the constructive knowledge of policymaking officials,”
or by “a failure to train or supervise subordinates amount[ing]
to deliberate indifference to the rights of those with whom
[the municipality's employees] come into contact.”Felix v.
City of New York, 344 F. Supp. 3d 644, 653 (S.D.N.Y. 20l8)
(collecting cases).
*7 As the Defendants note, Kosmidis has not shown, or
attempted to show, that there was a written policy condoning
the kind of behavior that Kosmidis alleges took place. Nor
does Kosmidis seek to establish that the practices alleged in
his Amended Complaint are so persistent or widespread as
to constitute custom or usage with the force of law. Those
theories, that is, are inapplicable here. Instead, for purposes
of the official policy requirement, Kosmidis argues that the
Port Authority is liable for failing to supervise, discipline, and
train the officers in question. See Pl. Opp'n Br. at 17–21. His
failure to supervise and discipline claims are predicated on
his factual allegations relating to the use of excessive force.
His failure to train claim, meanwhile, is predicated on two
separate factual bases: The first relates to the use of excessive
force during the arrest, and the second relates to the failure to
train officers to interact with hard-of-hearing individuals.
While there is some difference between failure to train claims
and other kinds of supervisory liability claims, all of the
claims require a showing of “deliberate indifference” to
prevail. SeeTieman v. City of Newburgh, No. 13-CV-4178
(KMK), 2015 WL 1379652, at *19 (S.D.N.Y. Mar. 26, 2015).
Thus, to succeed on a theory of liability based on a failure
to supervise, discipline, or train, a plaintiff must establish the
requisite “deliberate indifference” by (1) “offer[ing] evidence
from which a reasonable jury could conclude that a policy-
maker knows to a moral certainty that her employees will
confront a given situation;” (2) “show[ing] 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 (3) “show[ing] that the wrong choice by the
city employee will frequently cause the deprivation of a
citizen's constitutional rights.” Green v. City of N.Y., 465
F.3d 65, 80–81 (2d Cir. 2006) (cleaned up); see alsoWalker
v. City of New York, 974 F.2d 293, 297–99 (2d Cir. 1992).
This standard is by design stringent, “requiring proof that a
municipal actor disregarded a known or obvious consequence
of his action.” Connick v. Thompson, 563 U.S. 51, 61 (2011)
(internal quotation marks and citation omitted). That is, a
plaintiff must show that the municipality had notice, actual or
constructive, that the inadequacy or failure to supervise was
causing civil rights violations. Id.
The Court turns first to Kosmidis's claim that the Port
Authority is liable for failing to supervise or discipline the
officers, which posits that such a failure to supervise or
discipline caused the incident in question. Kosmidis bases this
claim on a prior civil rights case brought against Sergeant
Buckner in which a jury found Buckner liable for excessive
force and assessed $71,000 against him in compensatory
damages and $33,000 in punitive damages. See Dkt. No.
99, Pl.’s 56.1 Statement, ¶¶ 147–158. Kosmidis claims that
despite that case being brought against Buckner, the Port
Authority failed to take any disciplinary action against him—
and that they paid the damages assessed against him. From
there, he claims that failing to discipline Buckner emboldened
him to continue committing constitutional violations. The
parties dispute whether evidence from that prior litigation
is admissible, but the Court need not reach that question
because even assuming that Kosmidis can rely on that
evidence and drawing all reasonable inferences in his favor,
the Port Authority is entitled to judgment as a matter of law.
Specifically, it is not the case that “a municipality is required
to discipline every officer upon a finding of wrongdoing.”
Posr v. City of New York, 835 F. Supp. 120, 125 (S.D.N.Y.
1993), aff'd, 22 F.3d 1091 (2d Cir. 1994); see alsoButler v.
City of Norman, 992 F.2d 1053, 1056 (10th Cir. 1993) (“[W]e
cannot hold that the failure of a police department to discipline
in a specific instance is an adequate basis for municipal
liability under Monell.”). Indeed, ordinarily “allegation[s]
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of numerous claims of excessive force” are insufficient to
sustain an inference of deliberate indifference due to failure
to supervise absent a showing that “meaningful attempts to
investigate repeated claims of excessive force are absent.”
Tieman v. City of Newburgh, No. 13-CV-4178 (KMK), 2015
WL 1379652, at *21 (S.D.N.Y. Mar. 26, 2015). Other than
the evidence relating to the prior litigation involving Buckner,
Kosmidis has not provided any evidence that would plausibly
support the proposition that the supervisors knew “to a moral
certainty” that Buckner would act in similar fashion in the
future. In addition, Kosmidis has not provided any evidence
regarding whether the Port Authority investigated the claim or
otherwise took preventative steps, instead relying exclusively
on Buckner's deposition testimony that he was not disciplined
in relation to the incident. Even drawing all inferences in
Kosmidis's favor, the Court concludes that on this record, no
reasonable jury could conclude that the Port Authority acted
with deliberate indifference in light of a single incident in
which Buckner was charged with excessive force.
*8 The Court turns next to Kosmidis's claim that the
Port Authority is liable for failing to train Buckner and the
other officers to interact with hard-of-hearing individuals. In
addition to the three elements listed above, a plaintiff bringing
a failure to train claim at the summary judgment stage 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.” Jenkins v. City of New York, 478 F.3d 76, 94 (2d
Cir. 2007) (internal quotation marks omitted). With respect to
this claim, Kosmidis charges that Buckner was never trained
to interact with hard-of-hearing individuals. The Defendants
do not dispute this. See Dkt. No. 99, Def. 56.1 Resp., ¶ 157.
The record in this case is far too deficient to sustain a claim
that the Port Authority acted with deliberate indifference.
Ordinarily, a plaintiff bringing a failure to train claim must
show “[a] pattern of similar constitutional violations by
untrained employees.” Connick v. Thompson, 563 U.S. 51,
62 (2011) (quoting Bd. of Cty. Comm'rs of Bryan Cty. v.
Brown, 520 U.S. 397, 409 (1997)). This is so because
“[w]ithout notice that a course of training is deficient in
a particular respect, decisionmakers can hardly be said to
have deliberately chosen a training program that will cause
violations of constitutional rights.” Id. It is possible to prevail
without showing a pattern of constitutional violations only
when “the unconstitutional consequences of failing to train
[are] so patently obvious that a city could be liable under
[Section] 1983 without proof of a pre-existing pattern of
violations.” Id. at 64; see alsoCity of Canton, Ohio v. Harris,
489 U.S. 378, 390 n.10 (1989) (noting that the need to train
officers in the constitutional limitations on the use of deadly
force “can be said to be so obvious” that “failure to do so
could properly be characterized as deliberate indifference to
constitutional rights.”).
Kosmidis provides no evidence from which a reasonable
jury could conclude that any policymakers knew “to a moral
certainty” that his employees would confront such a situation.
Green, 465 F.3d at 80–81. He also does not present evidence
that might support the proposition that failure to provide
this training is so obvious as to warrant departure from the
ordinary rule that a pattern of constitutional violations is
necessary to prevail on such a claim. Furthermore, Kosmidis
does not provide any evidence to support the proposing
that the situation would be one in which employees would
face difficult choices such that training or supervision
would have helped. Id. And Kosmidis also fails to furnish
any evidence to show that the wrong choice by a Port
Authority officer will “frequently cause the deprivation of
a citizen's constitutional rights.” Id. Rather than introducing
such evidence, as would be necessary for the claim to survive
summary judgment, Kosmidis asks the Court to assume the
truth of those claims. At this stage, that is insufficient. On this
record, given Kosmidis's lack of evidence to establish those
necessary elements, no reasonable jury could conclude that
any policymakers acted with deliberate indifference.
For the reasons stated above, the Court concludes that the
Defendants are entitled to summary judgment on the Monell
claim.
E. Negligent Hiring
Kosmidis initially brought a negligent hiring claim under
New York state law. The Defendants do not dispute that at
the time of the arrest, the officers involved were acting within
the scope of their employment. Under state law, “where an
employee is acting within the scope of his or her employment,
thereby rendering the employer liable for any damages caused
by the employee's negligence under a theory of respondeat
superior, no claim may proceed against the employer for
negligent hiring or retention.” Karoon v. New York City
Transit Auth., 241 A.D.2d 323, 324, 659 N.Y.S.2d 27, 29
(1997); see alsoSchoolcraft v. City of N.Y., 103 F. Supp. 3d
465, 521 (S.D.N.Y. 2015) (collecting cases).
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*9 After the Defendants moved for summary judgment on
the claim, Kosmidis indicated that he would “withdraw[ ] his
claim for negligent hiring, screening, retention, supervision,
and training.” Dkt. No. 100, Pl.’s Opp'n Br., at 2 n.1.
The Defendants’ motion is therefore GRANTED as to the
negligent hiring claim.
F. Failure to intervene
The Defendants also move for summary judgment on
Kosmidis's failure to intervene claim. Their sole argument
is that they are entitled to summary judgment because there
was probable cause for Kosmidis's arrest. See Def. Br. at
15 (citing Terebesi v. Torreso, 764 F.3d 217, 243 (2d Cir.
2014)). Because the Court concludes that genuine issues of
material fact as to probable cause, seeinfra, and because the
Defendants have advanced no other theory as to why they are
entitled to summary judgment on this claim, the motion for
summary judgment is DENIED as to Kosmidis's failure to
intervene claim.
G. ADA and Rehabilitation Act claims
The Court turns next to Kosmidis's claims under the ADA
and the Rehabilitation Act, which are asserted only against
the Port Authority. The standards provided by § 504 of
the Rehabilitation Act and Title II of the ADA are nearly
identical, and courts typically consider claims under the two
statutes together. McElwee v. Cty. of Orange, 700 F.3d 635,
640 (2d Cir. 2012). To establish such a claim, a plaintiff
must demonstrate that “(1) he is a qualified individual with
a disability;” (2) “the defendant is subject to one of the
[a]cts;” and (3) “he was denied the opportunity to participate
in or benefit from the defendant's services, programs, or
activities, or was otherwise discriminated against by the
defendant because of his disability.” Disabled in Action v. Bd.
of Elections in City of New York, 752 F.3d 189, 196–97 (2d
Cir. 2014) (internal quotation marks and citation omitted). It
is undisputed that the Port Authority is subject to the acts. But
the Defendants claim that Kosmidis cannot establish the first
or third elements of the analysis.
The Court turns first to whether Kosmidis is a “qualified
individual with a disability.” To demonstrate that he has
a disability, a plaintiff “must first show that she suffers
from a physical or mental impairment,” then “identify
the activity claimed to be impaired and establish that it
constitutes a major life activity,” and finally “show that
her impairment substantially limits the major life activity
previously identified.” Weixel v. Bd. of Educ. of City of New
York, 287 F.3d 138, 147 (2d Cir. 2002) (cleaned up). The
Court assumes that Kosmidis has shown that he suffers from
a physical impairment related to his hearing. In addition,
the ADA includes “hearing” in its definition of “major life
activities.” 42 U.S.C. § 12102(2)(A).
Nonetheless, Kosmidis's ADA and Rehabilitation Act claims
fail because he has not adduced evidence to show that
the impairment is “substantially limit[ing].” To determine
whether a major life activity is substantially limited by an
impairment, courts in this circuit consider “the nature and
severity of the impairment; its duration or expected duration;
and the existence of any actual or expected permanent or
long term impact.” Capobianco v. City of New York, 422
F.3d 47, 57 (2d Cir. 2005). In the context of an employment
discrimination case, the Second Circuit has counseled that
the inquiry “must focus primarily on whether the claimant
is unable to perform the variety of tasks central to most
people's daily lives.” Id. at 59 (internal quotations omitted).
Even those impairments that affect major life activities may
be insufficient if a plaintiff fails to show that the impairment
is substantially limiting. B.C. v. Mount Vernon Sch. Dist.,
837 F.3d 152, 160 (2d Cir. 2016). To be sure, the ADA
expressly directs courts to construe the definition of disability
“in favor of broad coverage.” 42 U.S.C. § 12102(4)(A); see
alsoGrullon v. Admin. for Children's Servs., No. 18-CV-3129
(LJL), 2021 WL 981848, at *12 (S.D.N.Y. Mar. 16, 2021).
To that end, the question of whether an impairment is a
“disability” under the ADA typically “should not demand
extensive analysis.” Glaser v. Gap Inc., 994 F. Supp. 2d 569,
574 (S.D.N.Y. 2014) (citing Pub.L. 110–325, § 2(b)(5), 122
Stat. at 3553–54).
*10 But even drawing all inferences in Kosmidis's favor,
and despite the leniency of the applicable standard, the
record is devoid of evidence that could even plausibly
establish that Kosmidis's impairment “substantially limits”
his hearing as defined by the statute. Kosmidis relies on his
own testimony regarding his hearing issues. As already noted,
in his testimony he claimed that he wore hearing aids for about
ten or fifteen years prior to 2011, and that he had seen a doctor
about his hearing issues. See Dkt. No. 99, Pl.’s 56.1 Statement,
¶¶ 107–08. He stopped wearing the hearing aids in 2011, in
part due to cost; in 2019, he resumed wearing hearing aids. Id.
¶¶ 109–11. Kosmidis also points to the fact that on the date of
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his deposition, his translator said that Kosmidis had difficulty
hearing her. Id. ¶ 104.
Even assuming those facts are true, no reasonable jury could
conclude that Kosmidis's impairment fits the “substantially
limit[ing]” mold. He presents no evidence, for instance, as
to the severity of his hearing issues, other than conclusory
testimony that his impairment was severe. Indeed, Kosmidis's
testimony does not address how the lack of hearing aids
impacted his ability to function; the conclusory nature of
his testimony provides no evidence regarding the severity
of the impairment or the effect the impairment had on his
ability to function on the date of the incident. It is, at most,
a generalized complaint of hearing issues with no context
that would allow the factfinder to determine its nature or
its severity. Given this, and considering the lack of any
other corroborating evidence, even drawing all reasonable
inferences in Kosmidis's favor, no reasonable jury could
conclude that, based on that evidence, the impairment is
substantially limiting. Cf.Boghossian v. Hudson Meridian
Constr. Grp., LLC, No. 09 CIV. 8893 (AKH), 2011 WL
13176012, at *3 (S.D.N.Y. June 20, 2011), aff'd sub
nom.Boghossian v. Hudson Meridian Const. Grp., LLC, 475
F. App'x 806 (2d Cir. 2012) (noting that even though the
plaintiff had vision issues, “[a] generalized complaint of
blurred vision, without any evidence to show its nature or
severity, its duration, or the existence of any impediment or
long-term impact, is insufficient to demonstrate a substantial
limitation.”). As a result, Kosmidis cannot establish the first
necessary element of his ADA and Rehabilitation Act claims,
and the claims fail.
For these reasons, Defendants’ motion is GRANTED as to
these claims.
H. Intentional Infliction of Emotional Distress
The Defendants next move for summary judgment on
Kosmidis's claim for intentional infliction of emotional
distress. The motion is GRANTED as to that claim.
To sustain a claim for intentional infliction of emotional
distress under New York Law, a plaintiff must demonstrate:
(1) extreme and outrageous conduct; (2) intent to cause
severe emotional distress; (3) a causal connection between
the conduct and the injury; and (4) severe emotional distress.
SeeDruschke v. Banana Republic, Inc., 359 F. Supp. 2d
308, 314 (S.D.N.Y. 2005). “In New York, recovery of an
intentional infliction of emotional distress claim is allowed
only as a last resort, when traditional tort remedies are
unavailable.” Sepulveda v. City of New York, No. 01-CV-3054
(DC), 2003 WL 21673626, at *6 (S.D.N.Y. July 17, 2003)
(Chin, J.) (cleaned up). Thus, “[n]o intentional infliction of
emotional distress claim will lie where the conduct underlying
the claim falls within the ambit of traditional tort liability.’ ”
Id. (cleaned up).
The conduct underlying Kosmidis's claim for intentional
infliction of emotional distress is entirely encompassed by his
false arrest and excessive force claims. Kosmidis points to no
other conduct that might sustain the claim, and as a result the
claim is legally insufficient. Thus, the Defendants are entitled
to summary judgment, and the motion is GRANTED as to
this claim.
I. Negligence
*11 The Court turns next to Defendants’ argument that they
are entitled to summary judgment on Kosmidis's negligence
claim; for the reasons that follow, the motion is GRANTED
as to this cause of action.
It is well-settled that when a plaintiff asserts excessive force
and assault claims which are premised upon defendants’
allegedly intentional conduct, a negligence claim with respect
to the same conduct will not lie. See, e.g., Dineen ex rel.
Dineen v. Stramka, 228 F. Supp. 2d 447, 454 (S.D.N.Y. 2002);
Mazurkiewicz v. New York City Transit Auth., 810 F.Supp.
563, 570–71 (S.D.N.Y. 1993) (holding that a “[p]laintiff
cannot argue that defendants engaged in intentional conduct
that forms the basis of an assault and § 1983 excessive force
claim and also argue that defendants were negligent towards
plaintiff”). Kosmidis provides no authority for the proposition
that he can argue negligence in the alternative where the crux
of his other claims require intentionality. See Pl. Opp'n Br. at
25. And since Kosmidis's claims against the Defendants are
all premised on intentional conduct, his claim for negligence
must be dismissed. SeeDineen, 228 F. Supp. 2d at 454.
Thus, summary judgment is GRANTED as to this claim.
J. First Amendment
The Defendants next move for summary judgment on
Kosmidis's First Amendment retaliation claim. To prevail on
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such a claim, a plaintiff must show that “(1) he has an interest
protected by the First Amendment; (2) the Defendant[s’]
actions were motivated or substantially caused by his exercise
of that right; and (3) the Defendant[s’] actions effectively
chilled the exercise of the Plaintiff's First Amendment rights.”
SeeGalarza v. Monti, 327 F. Supp. 3d 594, 603 (S.D.N.Y.
2018).
The Defendants rest their argument on the basis that
probable cause defeats any First Amendment retaliation
claim. SeeConnell v. Signoracci, 153 F.3d 74, 79 (2d Cir.
1998). As already noted, however, genuine issues of material
fact preclude a finding of probable cause. Because the
Defendants advance no other argument in favor of their
summary judgment motion on this point, the motion is
DENIED.
K. Fourteenth Amendment
The Defendants next move to dismiss Kosmidis's Fourteenth
Amendment claims, arguing that any Fourteenth Amendment
allegations brought in the Amended Complaint are both
unidentifiable and duplicative. Dkt. No. 90, Def's Br., at 22.
It is true that “[a] § 1983 claim for false arrest implicates
both Amendments because the Fourth Amendment applies to
the States pursuant to the Fourteenth Amendment.” Micalizzi
v. Ciamarra, 206 F. Supp. 2d 564, 579 (S.D.N.Y. 2002).
But the gravamen of the alleged constitutional violations in
this case is found in the Fourth Amendment. The Amended
Complaint does not articulate a theory of a Fourteenth
Amendment violation, and Kosmidis does not respond to
Defendants’ arguments in his opposition brief to the present
motion. Furthermore, the Court cannot discern any attempt
by Kosmidis to assert a standalone Fourteenth Amendment.
“Federal courts may deem a claim abandoned when a party
opposing summary judgment fails to address the [movant's]
argument in any way.” Collins v. City of New York, 295
F. Supp. 3d 350, 361 (S.D.N.Y. 2018) (citing Taylor v.
City of New York, 269 F. Supp. 2d 68, 75 (E.D.N.Y. 2003)
(alterations in original)). In line with this, and in light of
Kosmidis's failure to address the Defendants’ arguments, the
Court concludes that he has abandoned any such Fourteenth
Amendment claim.
*12 Thus, to the extent that Kosmidis sought to assert such
a separate Fourteenth Amendment claim, the Defendants’
motion is GRANTED.
L. New York state constitutional claims
Finally, Kosmidis initially brought claims predicated on the
New York state constitution. After the Defendants moved for
summary judgment on the claim, Kosmidis indicated that he
“withdraws his New York State Constitutional claims.” Dkt.
No. 100, Pl.’s Opp'n Br., at 2 n.1. The Defendants’ motion is
therefore GRANTED as to those claims.
IV. Conclusion
For the reasons stated above, the Defendants’ motion for
summary judgment is GRANTED in part and DENIED in
part. It is granted as to any claims brought for punitive
damages against the Port Authority; Plaintiff's Monell claim
against the Port Authority; Plaintiff's negligent hiring claim;
the standalone negligence claim; the intentional infliction of
emotional distress claim; the ADA and Rehabilitation Act
claims; any standalone Fourteenth Amendment claim; and
any New York state constitutional claims. Those claims are
accordingly dismissed. The Defendants’ motion is denied as
to all other claims.
The Court hereby schedules a pre-trial conference for October
25, 2021 at 1:00 p.m. By October 18, 2021, the parties are
ORDERED to meet and confer and submit a joint letter
proposing approximate trial dates and a schedule for the
submission of the pre-trial materials identified in Rule 6 of the
Court's Individual Practices in Civil Cases. Due to the COVID
rules for centralized jury trial scheduling in this district and
the Court's current schedule (including its heavy criminal
docket), the Court is not available for a jury trial until April
2022. The parties must bear this in mind in their discussions.
The parties may consider whether they wish to consent to the
Magistrate Judge for all purposes as the Magistrate Judge will
likely be able to try the case sooner. The parties shall also
indicate if they seek a referral to the Mediation Program or to
the Magistrate Judge for settlement discussions.
This resolves Dkt. No. 88.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 4442812
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Kosmidis v. Port Authority of New York and New Jersey
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Filings (1)
Title PDF Court Date Type
1. Docket 1:18-CV-08413
Kosmidis v. The Port Authority of New York and New
Jersey et al
— S.D.N.Y. Sep. 14, 2018 Docket
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Kosmidis v. Port Authority of New York and New Jersey
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History (3)
Direct History (1)
1. Kosmidis v. Port Authority of New York and New Jersey
2021 WL 4442812 , S.D.N.Y. , Sep. 28, 2021
Related References (2)
2. Kosmidis v. Port Authority of New York and New Jersey
2020 WL 5754605 , S.D.N.Y. , Aug. 27, 2020
Report and Recommendation Adopted by
3. Kosmidis v. Port Authority of New York and New Jersey
2020 WL 7022479 , S.D.N.Y. , Nov. 30, 2020
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Bird v. County of Westchester, Not Reported in Fed. Supp. (2022)
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2022 WL 2263794
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Darren BIRD, Plaintiff,
v.
COUNTY OF WESTCHESTER, et al., Defendants.
No. 20-CV-10076 (NSR)
|
Signed 06/23/2022
Attorneys and Law Firms
Michael Kevin Pinkard, Samuel Christopher DePaola, Sim &
DePaola, L.L.P., Bayside, NY, for Plaintiff.
Giacomo Gaspare Micciche, Irma Wheatfield Cosgriff,
Westchester County Attorney's Office, White Plains, NY, for
Defendants.
OPINION & ORDER
NELSON S. ROMÁN, United States District Judge:
*1 Plaintiff Darren Bird (“Plaintiff”) brings this action
pursuant to 42 U.S.C. § 1981, 1983 1985, 1986, and 1988
alleging violation of the Fourth and Fourteenth Amendments
against the County of Westchester (“Westchester”), B. Pectol,
Sgt. McWilliams (together, the “County Defendants”), Frank
Oliveri 1 , and John or Jane Doe 1-10 (all together, the
“Defendants”). (ECF No. 11.) Before the Court is the County
Defendants' motion to dismiss. (ECF No. 24.) For the
following reasons, the motion is GRANTED in part and
DENIED in part.
1 Defendant Oliveri has not been served and has
therefore not appeared in this action. Pursuant
to Federal Rule of Civil Procedure 4(m), “[i]f a
defendant is not served within 90 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.”
Fed. R. Civ. P. 4(m). Therefore, the Amended
Complaint is dismissed as against Oliveri.
BACKGROUND
The following facts are taken from the Amended Complaint
(“AC”) and are construed in the light most favorable to
Plaintiff, the non-movant, and accepted as true for purposes
of this motion.
Plaintiff is an African American male who resides in Bronx
County. (AC ¶ 8.) On February 7, 2019 at approximately
6:40 PM, Plaintiff was an inmate inside the vicinity of the
Westchester County Jail (the “Jail”). (Id. ¶ 35.) Plaintiff
had returned from court with several other inmates and was
taken to the intake area of the Jail. (Id. ¶ 36.) Plaintiff
and the other inmates were ordered to disrobe, squat down
while naked, and cough, and Pectol, McWilliams, and John
or Jane Doe 1-10 visually examined them for contraband.
(Id. ¶ 37.) No contraband was discovered on Plaintiff's
person. (Id. ¶ 39.) However, contraband was found secreted
into the rectum of an inmate named “Stevens”. (Id.) The
contraband was misattributed to Plaintiff, and he was given
an infraction for Promoting Prison Contraband. (Id. ¶ 40.)
Plaintiff alleges that Defendants searched Plaintiff and falsely
arrested him due to their discriminatory prejudices, desire to
meet an arrest quota, and to benefit from increased overtime
compensation. (Id. ¶ 54.) The matter was turned over to
Defendants Oliveri and John or Jane Doe 1-10 to determine
charges and initiate prosecution. (Id. ¶ 40.) Plaintiff was
placed into an “administrative segregation” housing cell in
which he was confined to his cell, denied recreation, exercise,
and leave to obtain meals. (Id. ¶ 41.)
On February 18, 2019, the matter was administratively
dismissed, and “Stevens” was indicated as the actual
possessor of the contraband. (Id. ¶ 42.) The Westchester
County Department of Corrections (“WCDOC”) Disciplinary
Report indicated that “Stevens” was the possessor of the
contraband. (Id.) However, despite this dismissal, Defendants
continued the prosecution of Plaintiff. (Id. ¶ 43.) A Criminal
Court Complaint was signed by Defendant Oliveri affirming
that Plaintiff was the possessor of the contraband. (Id. ¶
44.) Defendants Pectol, McWilliams, Oliveri, and John or
Jane Doe 1-10 provided false, misleading, or incomplete
information to the District Attorney's Office, namely that
Plaintiff had promoted prison contraband so that he may be
prosecuted. (Id. ¶ 45.) The case was ultimately dismissed on
December 5, 2019. (Id. ¶ 47.) Plaintiff alleges Westchester
has a policy, custom, or pattern and practice of searching
and arresting ethnic minorities without probable cause or
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reasonable suspicion, and for searching individuals without
justification. (Id. ¶¶ 51-52.) Plaintiff further alleges that,
upon information and belief, the personnel files, records, and
disciplinary histories of the Defendants will reveal a history
of constitutional violations, and that Westchester has failed to
correct this behavior. (Id. ¶ 67-69.) Plaintiff suffered loss of
his liberty, reputational harm, loss of earnings and potential
earnings, physical injury, and emotional distress. (Id. ¶ 71.)
*2 Plaintiff filed suit on December 1, 2020. (ECF No.
1.) The County Defendants filed a motion to dismiss on
September 8, 2021. (ECF No. 26.) Plaintiff did not file an
opposition.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), dismissal
is proper unless the complaint “contain[s] 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)). When there are well-pled factual allegations in
the complaint, “a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to
relief.” Id. at 679. The critical inquiry is whether the plaintiff
has pled sufficient facts to nudge the claims “across the line
from conceivable to plausible.” Twombly, 550 U.S. at 555.
A motion to dismiss will be denied where the allegations
“allow[ ] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678.
Where a motion to dismiss is unopposed, a court should
nevertheless “assume the truth of a pleading's factual
allegations and test only its legal sufficiency.” McCall v.
Pataki, 232 F.3d 321, 322 (2d Cir. 2000). While the Court
must take all material factual allegations as true and draw
reasonable inferences in the non-moving party's favor, the
Court is “not bound to accept as true a legal conclusion
couched as a factual allegation,” or to credit “mere conclusory
statements” or “[t]hreadbare recitals of the elements of a cause
of action.” Iqbal, 556 U.S. at 662, 678 (quoting Twombly,
550 U.S. at 555). The critical inquiry is whether the plaintiff
has pled sufficient facts to nudge the claims “across the line
from conceivable to plausible.” Twombly, 550 U.S. at 555.
A motion to dismiss will be denied where the allegations
“allow[ ] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678.
DISCUSSION
Plaintiff brings federal causes of action for unlawful search
and seizure, false arrest and false imprisonment, excessive
force, malicious prosecution, malicious abuse of process,
denial of his right to fair trial and due process, deprivation of
rights and denial of equal protection of the laws, conspiracy to
interfere with civil rights and failure to prevent the conspiracy,
and failure to intervene. (ECF No. 11.) Plaintiff also brings
state law claims for unlawful search and seizure, false
arrest and false imprisonment, assault and battery, malicious
prosecution, malicious abuse of process, denial of his right
to fair trial and due process, deprivation of rights and denial
of equal protection of the laws, failure to intervene, and
negligent hiring, training, retention and supervision. (Id.)
The County Defendants aver that (1) Plaintiff fails to allege
plausible claims of constitutional violations committed by the
County Defendants; (2) Plaintiff fails to plead a plausible
claim for Monell liability by Westchester; and (3) the Court
should dismiss Plaintiff's state law claims. (Memorandum of
Law (“Mem.”) ECF No. 26 at 8-24.) The Court will address
each argument below.
I. Federal Claims
*3 All of Plaintiff's federal causes of action are brought
pursuant to Section 1983. Section 1983 provides that “[e]very
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. Section 1983 “is not itself
a source of substantive rights, but a method for vindicating
federal rights elsewhere conferred by those parts of the United
States Constitution and federal statutes it describes.” Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979); see also Patterson v.
County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004) (“Section
1983 ... is not itself a source of substantive rights ... [i]t merely
provides a method for vindicating federal rights elsewhere
conferred.”) (internal quotation marks omitted). To state a
claim under Section 1983, a plaintiff must allege “(1) the
challenged conduct was attributable to a person who was
acting under color of state law and (2) the conduct deprived
the plaintiff of a right guaranteed by the U.S. Constitution.”
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Castilla v. City of New York, No. 09 Civ. 5446(SHS), 2013
WL 1803896, at *2 (S.D.N.Y. Apr. 25, 2013).
a. Unlawful Search and Seizure
Plaintiff avers his Fourth Amendment right to be free from
unreasonable searches and seizures was violated by the
County Defendants. (AC ¶ 85.) The Fourth Amendment
protects citizens' “persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. Amend. IV.
This requires that searches of prison inmates be “reasonably
related to legitimate security interests.” Florence v. Bd. of
Chosen Freeholders, 566 U.S. 318, 328 (2012) (quoting Bell
v. Wolfish, 441 U.S. 520, 548 (1979)). Where a plaintiff is
challenging an “isolated search” courts “typically apply the
standard set forth in Bell v. Wolfish, 441 U.S. 520 (1979).”
Harris v. Miller, 818 F.3d 49, 58 (2d Cir. 2016). This test
requires courts to consider “[1] the scope of the particular
intrusion, [2] the manner in which it is conducted, [3] the
justification for initiating it, and [4] the place in which it
is conducted” to balance “the need for the particular search
against the invasion of personal rights that the search entails.”
Bell, 441 U.S. at 559.
For a claim related to the infringement of the right to
bodily privacy, “a plaintiff must show that he had an
actual, subjective expectation of bodily privacy, and that
officials lacked a sufficient justification to intrude on the
plaintiff's expectation of bodily privacy.” Lopez v. Phipps,
No. 18-CV-3605 (MKB), 2019 WL 2504097, at *4 (E.D.N.Y.
June 17, 2019). Strip searches do not violate the Fourth
Amendment even in the absence of reasonable suspicion if
they are performed pursuant to policies that are “reasonably
related to legitimate penological interests.” Florence, 566
U.S. at 326; 330 (quoting Turner v. Safley, 482 U.S. 78, 89
(1987)). This includes strip searching an inmate on the way
to and from court appearances. See Smith v. City of N.Y., No.
14 Civ. 5934 (JCF), 2015 WL 3929621, at *2–3 (S.D.N.Y.
June 17, 2015) (“[T]he policy of strip searching inmates after
contact visits or upon departing for court appearances does
not, in itself, violate the Constitution.”).
Here, Plaintiff alleges he and other inmates were strip
searched after returning from court to ensure they were not
carrying contraband. Conducting strip searches to determine
whether inmates are carrying contraband before being let
back into the Jail is a legitimate penological interest that
has been upheld by courts within this Circuit. See Crawford
v. Cuomo, 796 F.3d 252, 258 (2d Cir. 2015) (holding that
“prison officials looking for contraband may subject inmates
to reasonable strip searches and cavity searches”); Thomas
v. Martin-Gibbons, No. 19 Civ. 7695 (ER), 19 Civ. 7887
(ER), 2020 WL 5026884, at *9 (S.D.N.Y. Aug. 25, 2020)
(“The Supreme Court has held that jails may require all
inmates entering a correctional institution to undergo a strip
search requiring them to expose their body and lift parts of
their anatomy during the search—irrespective of the severity
of their alleged offense.”); Thompson v. City of N.Y., No.
16 Civ. 824 (PKC), 2017 WL 1929552, at *2 (S.D.N.Y.
May 9, 2017) (holding that strip searches conducted upon
entering and leaving the New York City Department of
Correction facilities and during searches of the inmate's
housing area “serve the legitimate penological purpose of
preventing contraband from coming into and out of prisons
and jails”). Therefore, Plaintiff has failed to include factual
allegations showing any violation of the Fourth Amendment.
*4 Accordingly, the County Defendants' motion to dismiss
the unlawful search and seizure claim is granted.
b. False Arrest and Imprisonment
When analyzing a claim under Section 1983 for false arrest
and imprisonment, the Court looks to New York law. Russo
v. City of Bridgeport, 479 F.3d 196, 203 (2d Cir. 2007). “A
false imprisonment claim under New York law is identical
to a false arrest claim.” Rebenstorf v. City of N.Y., No. 15
Civ. 5784(BMC), 2015 WL 6438765, at *2 (E.D.N.Y. Oct.
21, 2015) (citing Posr v. Doherty, 944 F.2d 91, 96 (2d Cir.
1991)). To state a claim under Section 1983 for false arrest
or false imprisonment, a plaintiff must show that “(1) the
defendant intended to confine him, (2) the plaintiff was
conscious of the confinement, (3) the plaintiff did not consent
to the confinement and (4) the confinement was not otherwise
privileged.” Ackerson v. City of White Plains, 702 F.3d 15,
19 (2d Cir. 2012) (quoting Broughton v. State of New York,
37 N.Y.2d 451, 456 (1975)). In other words, “[t]o establish a
claim for false arrest under 42 U.S.C. § 1983, a plaintiff must
show that ‘the defendant intentionally confined him without
his consent and without justification.’ ” Escalera v. Lunn,
361 F.3d 737, 743 (2d Cir. 2004) (quoting Weyant v. Okst,
101 F.3d 845, 852 (2d Cir. 1996)). Further, “while prison
custody is an entirely reasonable ‘seizure’ of a convicted
felon, ‘it may fairly be argued that the constitutional right to
be free from unreasonable seizures ... embraces the inmate[']s
entitlement not to be subjected to a major further limitation
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on his liberty ... on the mere whim of a correctional officer
(for no penological purpose at all).’ ” Miller v. Herbert, No.
No. 95–CV–360H, 1997 WL 626404, at *3 (W.D.N.Y. Sept.
24, 1997) (quoting Leslie v. Doyle, 868 F. Supp. 1039, 1044
(N.D. Ill. 1994)).
“The existence of probable cause to arrest constitutes
justification and ‘is a complete defense to an action for false
arrest,’ ... whether that action is brought under state law or
under § 1983.” Weyant, 101 F.3d at 852 (citation omitted);
see also Kent v. Katz, 312 F.3d 568, 573 (2d Cir. 2002) (“A
§ 1983 claim of false arrest based on the Fourth Amendment
right to be free from unreasonable seizures may not be
maintained if there was probable cause for the arrest.”)).
Probable cause “requires an officer to have ‘knowledge or
reasonably trustworthy information sufficient to warrant a
person of reasonable caution in the belief that an offense has
been committed by the person to be arrested.’ ” Panetta v.
Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (quoting Martinez
v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000)). Probable cause
may exist “even where it is based on mistaken information,
so long as the arresting officer acted reasonably and in good
faith in relying on that information.” Bernard v. United States,
25 F.3d 98, 102 (2d Cir. 1994) (citation omitted).
Here, after the contraband was misattributed to Plaintiff, he
was placed into an “administrative segregation” housing cell
until the claim was dismissed. Plaintiff has demonstrated
that due to the County Defendants' actions, he was subjected
to further limitation on his liberty, namely being confined
to his cell, denied recreation, exercise, and leave to obtain
meals. (AC ¶ 41.) The County Defendants aver that they
had probable cause to charge Plaintiff with possessing
the contraband and therefore segregate him as it was
misattributed to Plaintiff, and that Plaintiff has failed to
provide facts showing bad faith on the part of the Defendants.
(Mem. at 9-11.) However, Plaintiff does not have to show
bad faith as “the defendant bears the burden of proving
that probable cause existed.” Doe v. City of N.Y., No. 18-
cv-670 (ARR) (JO), 2018 WL 3824133, at *4 (E.D.N.Y.
Aug. 9, 2018). Further, the Amended Complaint alleges that
the matter was administratively dismissed on February 18,
2019, when the WCDOC Disciplinary Report indicated that
“Stevens” possessed the contraband, not Plaintiff. (AC ¶
42.) The Amended Complaint further alleges that Defendants
continued the prosecution of Plaintiff, and he was segregated
until the charge was dismissed in December of 2019. (AC
¶ 43; 47; 49.) Even if the County Defendants first made a
mistake in good faith when segregating Plaintiff, Plaintiff's
allegations indicate that even when this mistake was rectified,
they continued to prosecute and confine him in segregated
housing. Therefore, the County Defendants did not have
probable cause, and, at this stage, Plaintiff has satisfied the
standard for false arrest and imprisonment.
*5 Accordingly, the Court denies the County Defendants'
motion to dismiss the false arrest and imprisonment claim.
c. Excessive Force
Plaintiff next alleges excessive force under both the Fourth
and Fourteenth Amendments.
i. Fourth Amendment
“ ‘The Fourth Amendment prohibits the use of unreasonable
and therefore excessive force by a police officer’ in the
course of an arrest.” Graham v. City of N.Y., 928 F. Supp.
2d 610, 617 (E.D.N.Y. 2013) (quoting Tracy v. Freshwater,
623 F.3d 90, 96 (2d Cir. 2010)). “When excessive force
is alleged, a court must determine ‘whether the officers'
actions are “objectively reasonable” in light of the facts
and circumstances confronting them, without regard to their
underlying intent or motivation.’ ” Wims v. N.Y.C. Police
Dep't, No. 10-CV-6128(PKC), 2011 WL 2946369, at *4
(S.D.N.Y. July 20, 2011) (quoting Graham v. Connor,
490 U.S. 386, 397 (1989)). When determining whether
excessive force was used against a plaintiff, a court balances
“the nature and quality of the intrusion on the plaintiff's
Fourth Amendment interests against the countervailing
governmental interests at stake.” Tracy, 623 F.3d at 96. In
doing so, a court looks to: “(1) the nature and severity of the
crime leading to the arrest, (2) whether the suspect poses an
immediate threat to the safety of the officer or others, and (3)
whether the suspect was actively resisting arrest or attempting
to evade arrest by flight.” Id.
“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.”
Graham, 490 U.S. at 396. “Not every push or shove, even
if it may later seem unnecessary in the peace of a judge's
chambers, ... violates the Fourth Amendment” as officers
must use some degree of force when arresting an individual.
Id. at 396–97 (internal citation omitted). “Instead, the force
used by the law enforcement officer must generally be more
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than de minimis for a claim to be actionable.” Antic v. City
of N.Y., 273 F. Supp. 3d 445, 458 (S.D.N.Y. 2017) (citing
Romano v. Howarth, 998 F.2d 101, 105 (2d. Cir. 1993)).
ii. Fourteenth Amendment
A pretrial detainee's claims “are evaluated under the Due
Process Clause 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.’ ”
Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (quoting
Iqbal v. Hasty, 490 F.3d 143, 168 (2d Cir. 2007) rev'd on
other grounds sub nom. Ashcroft v. Iqbal, 556 U.S. 662
(2009)). Under Kingsley v. Hendrickson, any time a prison
guard engages in excessive force against a pretrial detainee,
even if there is no evidence of serious injury, there is always
a constitutional violation because “pretrial detainees (unlike
convicted prisoners) cannot be punished at all[.]” 576 U.S.
389, 400 (2015). In other words, “a pretrial detainee must
show only that the force purposely or knowingly used against
him was objectively unreasonable.” Id. at 396–97.
A factfinder must apply an “objective reasonableness”
standard that “turns on the facts and circumstances of each
particular case.” Frost v. N.Y.C. Police Dep't, 980 F.3d 231,
252 (2d Cir. 2020) (quoting Kingsley, 576 U.S. at 397).
Important factors to consider include:
*6 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.
Kingsley, 576 U.S. at 397. The factfinder must also “take
account of the legitimate interests in managing a jail,
acknowledging as part of the objective reasonableness
analysis that deference to policies and practices needed to
maintain order and institutional security is appropriate.” Id.
at 399–400. Balancing those needs, force which “is not
rationally related to a legitimate governmental objective or
that it is excessive in relation to that purpose” fails the test.
Id. at 398.
Here, Plaintiff's claim fails under both standards. Plaintiff
merely alleges that the County Defendants perpetrated
“assaults” and “batteries” against him and caused him
“physical injury.” (AC ¶¶ 57; 71.) Plaintiff fails to include
any facts showing that any of the County Defendants used
excessive force, or any force, on him. In fact, Plaintiff's
allegations state that the Defendants “visually examined
Plaintiff and the other inmates” (AC ¶ 37), there is no
indication that any Defendant ever laid a hand on Plaintiff or
any other inmate during the search. Therefore, his claim fails.
Accordingly, Plaintiff's excessive force claim is dismissed.
d. Malicious Prosecution
Plaintiff next alleges that his Fourteenth Amendment rights
were violated due to malicious prosecution. (AC ¶¶ 116-121.)
However, “[t]he Supreme Court and Second Circuit have held
that a claim for malicious prosecution, if brought under the
Constitution, must be brought under the Fourth Amendment
rather than under the substantive due process provisions of the
Fourteenth Amendment.” Diaz-Bernal v. Myers, 758 F. Supp.
2d 106, 133 (D. Conn. 2010) (citing Albright v. Oliver, 510
U.S. 266, 271–75 (1994). Therefore, the Court will evaluate
Plaintiff's claim under the Fourth Amendment.
“In order to prevail on a § 1983 claim against a state
actor for malicious prosecution, a plaintiff must show a
violation of his rights under the Fourth Amendment ... and
establish the elements of a malicious prosecution claim
under state law.” Fulton v. Robinson, 289 F.3d 188, 195 (2d
Cir. 2002) (internal citations omitted). In order to establish
a malicious prosecution claim under New York law, “a
plaintiff must prove (1) the initiation or continuation of
a criminal proceeding against plaintiff [by the defendant];
(2) termination of the proceeding in plaintiff's favor; (3)
lack of probable cause for commencing the proceeding; and
(4) actual malice as a motivation for defendant's actions.”
Manganiello v. City of N.Y., 612 F.3d 149, 161 (2d Cir. 2010)
(citations omitted).
The probable cause standard in a malicious prosecution
claim is “slightly higher” than that required in a false
arrest case. Stansbury v. Wertman,721 F.3d 84, 95 (2d Cir.
2013). New York law requires “such facts and circumstances
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that would lead a reasonably prudent person to believe
the plaintiff guilty.” Id. To hold a police officer liable for
malicious prosecution, an officer “must do more than report
the crime or give testimony,” he must “be found to have
initiated the prosecution.” Culpepper v. City of N.Y., No.
14-CV-6585(ALC), 2016 WL 5334978, at *5 (S.D.N.Y.
Sept. 21, 2016) (internal quotation marks omitted) (quoting
Manganiello, 612 F.3d at 163). When analyzing such a
claim, there is a presumption that the “prosecutor exercises
independent judgment in deciding whether to initiate and
continue a criminal proceeding.” Alcantara v. City of N.Y., 646
F. Supp 2d 449, 457 (S.D.N.Y. 2009) (quoting Crenshaw v.
City of Mount Vernon, No. 06-CV-2722, 2008 WL 445223,
at *8 (S.D.N.Y. Sept. 30, 2008)). The presumption may
be rebutted where an officer “play[s] an active role in the
prosecution, such as giving advice and encouragement or
importuning the authorities to act”, Manganiello, 612 F.3d at
163 (internal quotation marks omitted) (quoting Rohman v.
N.Y. City Transit Auth., 215 F.3d, 208, 217 (2d Cir. 2010)), or
“provid[ing] false information to a prosecutor.” Cameron v.
City of N.Y., 598 F.3d 50, 63–64 (2d Cir. 2010).
*7 Here, the County Defendants aver that Plaintiff has
failed to provide facts to support the element of malice.
(Mem. at 12.) “Under New York law, malice does not
have to be actual spite or hatred, but means only ‘that the
defendant must have commenced the criminal proceeding
due to a wrong or improper motive, something other than
a desire to see the ends of justice served.’ ” Lowth v.
Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996).
The Amended Complaint conclusively alleges that Plaintiff
was “maliciously prosecuted” due to Defendants' “racially
discriminatory prejudices, their desire to meet an arrest quota
and to benefit from increased overtime compensation.” (AC
¶ 54.) As the County Defendants argue, Plaintiff fails to
include any facts to support these allegations. See Nieves v.
Cnty. of Monroe, 761 F. Supp. 2d 48, 52 (W.D.N.Y. 2011)
(“Conclusory or speculative allegations are insufficient:
plaintiff must specifically allege that the named defendants
acted with malice.”) (emphasis in original).
However, “in most cases, the lack of probable cause—while
not dispositive—tends to show that the accuser did not believe
in the guilt of the accused, and malice may be inferred from
the lack of probable cause.” Crews v. Cnty. of Nassau, 996
F. Supp. 2d 186, 207–08 (E.D.N.Y. 2014) (internal quotation
marks omitted); see also Boyd v. City of N.Y., 336 F.3d 72, 78
(2d Cir. 2003) (“[a] lack of probable cause generally creates
an inference of malice.”). While at one point the County
Defendants may have had facts and circumstances that would
lead a reasonably prudent person to believe Plaintiff owned
the contraband, this was debunked when “Stevens” was
found to be the actual owner. The Court therefore holds that
the County Defendants did not have probable cause while
continuing the prosecution of Plaintiff, and therefore malice
may be inferred. 2
2 Defendants also aver that Plaintiff has failed to
satisfy the “favorable termination” element as just
alleging the charges were dismissed is insufficient.
(Mem. at 12-13.) However, in Thompson v. Clark,
142 S. Ct. 1332, 1341 (2022), the Supreme
Court held that “a Fourth Amendment claim
under § 1983 for malicious prosecution does not
require the plaintiff to show that the criminal
prosecution ended with some affirmative indication
of innocence. A plaintiff need only show that the
criminal prosecution ended without a conviction.”
Therefore, Plaintiff has satisfied the favorable
termination element.
Accordingly, the Court denies the County Defendants' motion
to dismiss the malicious prosecution claim.
e. Malicious Abuse of Process
To make out a claim for malicious abuse of process under
Section 1983, a plaintiff must plausibly allege that he was
denied a federal right. See Hoffman v. Town of Southampton,
523 F. App'x 770, 771 (2d Cir. 2013) (summary order). The
Second Circuit has held that “where the process alleged to
have been abused is criminal in nature, an adequately pled
claim for malicious abuse of process is ‘by definition a denial
of procedural due process.’ ” Id. (quoting Cook v. Sheldon, 41
F.3d 73, 80 (2d Cir. 1994)).
Federal courts look to state law to determine the elements
of an abuse of process claim. See Cook, 41 F.3d at 80. In
New York, a malicious abuse of process claim lies against
a defendant who “(1) employs regularly issued legal process
to compel performance or forbearance of some act, (2) with
intent to do harm without excuse or justification, and (3)
in order to obtain a collateral objective that is outside the
legitimate ends of the process.” Savino v. City of N.Y., 331 F.3d
63, 69–70 (2d Cir. 2003) (internal quotation marks omitted).
To plead a collateral objective, a plaintiff must plausibly
plead “not that defendant acted with an improper motive, but
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rather an improper purpose—that is, ‘he must claim that [the
defendant] aimed to achieve a collateral purpose beyond or
in addition to his criminal prosecution.’ ” Douglas v. City
of N.Y., 595 F. Supp. 2d 333, 344 (S.D.N.Y. 2009) (quoting
Savino, 331 F.3d at 77). Although malicious prosecution and
malicious abuse of process are similar, malicious prosecution
is the improper issuance of process, while malicious abuse of
process is improper use of process after it has been legally
issued. Cook, 41 F.3d at 80.
*8 Here, the County Defendants aver that Plaintiff failed
to allege that they used the criminal process against him in
an improper fashion after it was issued. (Mem. at 14-15.)
The Court agrees. See Rodriguez v. City of New York,
No. 17-cv-12 (KBF), 2018 WL 2371719, at * (S.D.N.Y.
May 24, 2018) (dismissing abuse of process claim where
“plaintiff has not alleged that Officer Gale, notwithstanding
his motivation in issuing criminal process, has subsequently
used that process in an improper fashion—e.g., to extort
money or to coerce some action.”) (emphasis in original).
Plaintiff merely alleges that he was criminally prosecuted due
to the County Defendants' discriminatory prejudices, desire to
meet a quota, and to benefit from overtime compensation. He
includes no allegations reflecting any wrongdoing undertaken
after the prosecution was issued.
Accordingly, the County Defendants' motion to dismiss the
malicious abuse of process claim is granted.
f. Denial of Right to a Fair Trial
Plaintiff next alleges the County Defendants violated his
right to a fair trial pursuant to the Sixth and Fourteenth
Amendments. (AC ¶ 147.) “[W]hen a police officer creates
false information likely to influence a jury's decision and
forwards that information to prosecutors, he violates the
accused's constitutional right to a fair trial, and the harm
occasioned by such an unconscionable action is redressable
in an action for damages under” Section 1983. Lewis v. City
of N.Y., 591 F. App'x 21, 22 (2d Cir. 2015) (summary order)
(quoting Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123 (2d
Cir. 1997)). Such an action is warranted when “the allegedly
fabricated evidence ‘is the officer's own account of his or her
observations of alleged criminal activity, which he ... then
conveys to a prosecutor.’ ” Lauderdale v. City of N.Y., No.
15-CV-1486 (JGK), 2018 WL 1413066, at *8 (S.D.N.Y. Mar.
19, 2018) (quoting Garnett v. Undercover Officer C0039, 838
F.3d 265, 274 (2d Cir. 2016)).
“To state a claim for lack of a fair trial due to the fabrication
of evidence, Plaintiff must show that an ‘(1) investigating
official (2) fabricates evidence (3) that is likely to influence a
jury's decision, (4) forwards that information to prosecutors,
and (5) the plaintiff suffers a deprivation of liberty as a result.’
” Barnes v. City of N.Y., No. 18-cv-7119 (AJN), 2020 WL
6947424, at *4 (S.D.N.Y. Nov. 25, 2020) (citing Jovanovic
v. City of N.Y., 486 F. App'x 149, 152 (2d Cir. 2012)). The
“manufacture of false evidence, in and of itself ... does not
impair anyone's liberty,” Zahrey v. Coffey, 221 F.3d 342,
348 (2d Cir. 2000) (internal quotation marks omitted), and
therefore “in order to state a legally sufficient claim ... a
plaintiff must colorably allege that this evidence ... cause[d] a
constitutional injury,” Rolon v. Henneman, 517 F.3d 140, 148
(2d Cir. 2008).
Here, Plaintiff alleges the County Defendants “gave false,
misleading, or incomplete information to the District
Attorney's Office, namely that [Plaintiff] had promoted prison
contraband, so that a criminal prosecution would be initiated
against [him].” (AC ¶ 45.) However, Plaintiff fails to allege
that the County Defendants actually fabricated evidence.
“For fabrication, Plaintiff must show that the officers knew
the statements were false and made them anyway.” Barnes,
2020 WL 6947424, at *4. In the Amended Complaint,
Plaintiff merely alleges in a conclusory fashion that the
County Defendants “knowingly and intentionally” gave false
information (AC ¶ 45), he provides no facts to support
this conclusion. Based on the allegations in the Amended
Complaint, the contraband was “misattributed” to Plaintiff
(AC ¶ 40), and therefore it follows that the County Defendants
genuinely believed that Plaintiff was the owner of the
contraband at the time they provided this information to the
District Attorney's Office.
*9 Accordingly, the County Defendants' motion to dismiss
Plaintiff's denial of a right to fair trial claim is granted.
g. Deprivation of Rights and Denial of Equal Protection
Plaintiff next brings a claim for the deprivation of rights and
denial of equal protection pursuant to Sections 1981 and 1983.
(AC ¶¶ 159-167.) As “plaintiffs must meet the same pleading
standard for their § 1981 claims as for their § 1983 claims
under the Equal Protection Clause”, Brown v. City of Oneonta,
221 F.3d 329, 339 (2d Cir. 1999), the Court will evaluate these
claims together.
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The Fourteenth Amendment declares that “[n]o State shall ...
deny to any person within its jurisdiction the equal protection
of the laws.” U.S. Const. amend. XIV, § 1. “The Equal
Protection Clause ‘is essentially a direction that all persons
similarly situated should be treated alike.’ ” Brown, 221 F.3d
at 337 (quoting City of Cleburne v. Cleburne Living Ctr.,
Inc., 473 U.S. 432, 439 (1985)). “To state a violation of the
Equal Protection Clause, a plaintiff must allege ‘that he [or
she] was treated differently than others similarly situated as
a result of intentional or purposeful discrimination.’ ” Lopez
v. Cipolini, 136 F. Supp. 3d 570, 590–91 (S.D.N.Y. 2015)
(quoting Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005)).
Here, Plaintiff alleges that the County Defendants “subjected
Plaintiff to disparate treatment compared to other individuals
similarly situated, because Defendants did not pull over
any white inmates, who were actually promoting prison
contraband in the Defendants' view.” (AC ¶ 60.) However,
this contravenes Plaintiff's allegations that he and “several
other inmates” who “returned from court ... were ordered to
completely disrobe, squat down while naked and cough” and
that the County Defendants “visually examined Plaintiff and
the other inmates ....” (Id. ¶ 36-37.) Plaintiff does not allege
that he was treated differently from any of the other inmates
that returned from court. Plaintiff further does not specify a
time where he was treated differently from any white inmate,
or where white inmates who were promoting contraband were
not prosecuted by the Defendants. Therefore, Plaintiff's claim
fails.
Accordingly, the County Defendants' motion to dismiss
Plaintiff's deprivation of rights and denial of equal protection
claim is granted.
h. Conspiracy
Plaintiff next alleges a conspiracy to interfere with civil rights
or failure to prevent the conspiracy pursuant to Sections 1981,
1983, 1985, and 1986. As an initial matter, a plaintiff may not
bring a conspiracy claim under Section 1981. See Dilworth
v. Goldberg, 914 F. Supp. 2d 433, 465 (S.D.N.Y. 2012)
(“Although § 1981 may serve as the predicate for a conspiracy
claim under 42 U.S.C. § 1985, § 1981 does not itself provide
a mechanism for recovering upon a claim of conspiring to
violate § 1981.”). The Court will examine Plaintiff's claims
brought under Sections 1983, 1985, and 1986 below.
iii. Section 1983
To plead a conspiracy under Section 1983, a plaintiff must
allege “(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). “[T]he pleadings
must present facts tending to show agreement and concerted
action” and therefore conclusory allegations are insufficient.
Banks v. City of White Plains Police, No. 14 CV 670
(VB), 2014 WL 6642360, at *3 (S.D.N.Y. Oct. 17, 2014).
Moreover, “a civil conspiracy claim does not set forth an
independent cause of action but rather is sustainable only after
an underlying claim has been established.” Gonzalez v. City
of N.Y., No. 1:18-cv-2197-GHW, 2020 WL 158432, at *4
(S.D.N.Y. Jan. 13, 2020) (quoting DeMartino v. N.Y.S. Dep't
of Labor, 167 F. Supp. 3d 342, 373 (E.D.N.Y. 2016)).
*10 Here, Plaintiff alleges that “Defendants engaged in a
conspiracy against Plaintiff to deprive Plaintiff of the equal
protection of the laws, or of the privileges and immunities
under the laws” and that they were “motivated by some
racial, or otherwise class-based, invidious discriminatory
animus.” (AC ¶¶ 169; 172.) This allegation is related to
Plaintiff's deprivation of rights and denial of equal protection
claim. As already detailed in this Opinion, that claim fails as
it is not adequately pled. Because there is no underlying claim
to support Plaintiff's conspiracy allegations, the Court grants
the County Defendants' motion to dismiss Plaintiff's Section
1983 conspiracy claim.
iv. Section 1985
As Plaintiff is “not a federal official and his claims are
not related to the participation of witnesses in judicial
proceedings,” Sections 1985(1) and 1985(2) do not apply.
Morgan v. Dzurenda, No. 3:14-cv-966(VAB), 2016 WL
6826156, at *4 (D. Conn. Nov. 18, 2016). To state a
conspiracy under Section 1985(3), a plaintiff must allege
“(1) a conspiracy; (2) for the purpose of depriving, either
directly or indirectly, any person or class of persons of equal
protection of the laws, or of equal privileges and immunities
under the laws; (3) an act in furtherance of the conspiracy; (4)
whereby a person is either injured in his person or property
or deprived of any right of a citizen of the United States.”
Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085,
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1087 (2d Cir. 1993). Critically, “the conspiracy must also be
motivated by ‘some racial or perhaps otherwise class-based,
invidious discriminatory animus behind the conspirators'
action.’ ” Id. (quoting United Bhd. of Carpenters & Joiners,
Local 610 v. Scott, 463 U.S. 825, 829 (1983)).
Here, as discussed above, Plaintiff has failed to allege
any facts showing any of the County Defendants acted
with discriminatory motivation. Plaintiff merely alleges in a
conclusory fashion that the County Defendants acted with
“racially discriminatory prejudices” when searching him.
(AC ¶ 54.) That is insufficient. The Court therefore grants
the County Defendants' motion to dismiss the Section 1985
conspiracy claim.
v. Section 1986
Section 1986 provides that any “person who, having
knowledge that any of the wrongs conspired to be done,
and mentioned in section 1985 of this title, are about to be
committed, and having power to prevent or aid in preventing
the commission of the same, neglects or refuses so to do”
shall be liable to the injured party. 42 U.S.C. § 1986; see
also Secard v. Wells Fargo Bank, N.A., No CV-15-499 (JS)
(ARL), 2015 WL 6442563, at *4 (E.D.N.Y. Sept. 9, 2015)
(construing Plaintiff's Section 1983 “refusing or neglecting
to prevent” claim as brought under Section 1986), report
& recommendation adopted, 2015 WL 6442346 (E.D.N.Y.
Oct. 23, 2015). A Section 1986 claim “must be predicated
on a valid Section 1985 claim and, in the absence of such
a predicate claim, must be dismissed.” Cater v. N.Y., 316 F.
Supp. 3d 660, 672 (S.D.N.Y. 2018) (citing Brown, 221 F.3d
at 341.
Here, as Plaintiff has failed to plead a valid Section 1985
claim, his claim brought under Section 1986 must also be
dismissed. Accordingly, the County Defendants' motion to
dismiss Plaintiff's conspiracy claims brought under Sections
1981, 1983, 1985, and 1986 is granted.
i. Failure to Intervene
Plaintiff's last federal claim is for failure to intervene.
(AC ¶¶ 180-182.) “[A]ll 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). Liability may attach where an officer
observes or has reason to know: (1) “that excessive force
is being used”; (2) “that a citizen has been unjustifiably
arrested”; or (3) “that any constitutional violation has been
committed by a law enforcement official.” Id. For an officer to
be held liable, he or she must have had “a realistic opportunity
to intervene” to prevent the violation from happening. Id.
(citing O'Neill v. Krzeminski, 839 F.2d 9, 11–12 (2d Cir.
1988)). However, “there can be no failure to intervene
claim without a primary constitutional violation.” Forney
v. Forney, 96 F. Supp. 3d 7, 13 (E.D.N.Y. 2015). Further,
where the officer is a direct participant in the allegedly
unlawful conduct, the failure to intervene theory of liability
is inapplicable. Simon v City of N.Y., No. 09 Cv. 1302 (ENV)
(RER), 2011 WL 317975, at *12 (E.D.N.Y. Jan. 3, 2011)
(dismissing plaintiff's failure to intervene claim “because
these same officers actually arrested her.”).
*11 Here, Plaintiff brings a failure to intervene claim
as “[t]hose Defendants that were present but did not
actively participate in the ... unlawful conduct observed such
conduct, had an opportunity to prevent such conduct, had
a duty to intervene and prevent such conduct, and failed to
intervene.” (AC ¶ 180.) However, Plaintiff fails to allege facts
showing any of the Defendants committed a constitutional
violation in the presence of the County Defendants. Instead,
the Amended Complaint alleges broadly that the County
Defendants directly participated in the claimed constitutional
violations.
Accordingly, the County Defendants' motion to dismiss
Plaintiff's failure to intervene claim is granted.
II. Monell Liability
The claims in the Amended Complaint are also brought
against Westchester and Pectol and McWilliams in their
official capacities. For municipalities and officers acting in
their official capacities, liability under Section 1983 may not
be found on a respondeat superior theory solely because the
municipality or officer employs the actor who commits the
wrongdoing or violation. Monell v. Dep't of Soc. Servs., 436
U.S. 658, 691 (1978). Under Monell, a plaintiff must allege
“that the municipality itself caused or is implicated in the
constitutional violation.” Amnesty Am. v. Town of W. Hartford,
361 F.3d 113, 125 (2d Cir. 2004).
The Second Circuit uses a two-prong approach in determining
Monell liability for Section 1983 claims. Vippolis v.
Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985). First, the
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plaintiff must plead “the existence of a municipal policy or
custom in order to show that the municipality took some
action that caused his injuries beyond merely employing the
misbehaving officer.” Id. Second, the plaintiff must allege
a “direct causal link between a municipal policy or custom
and the alleged constitutional deprivation.” Hayes v. Cnty. of
Sullivan, 853 F.Supp.2d 400, 439 (S.D.N.Y. 2012) (quoting
City of Canton v. Harris, 489 U.S. 378, 385 (1989)).
To plead an official custom or policy, a plaintiff must allege
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 N.Y., 705 F. Supp. 2d 261, 276–77
(S.D.N.Y. 2010) (internal citations omitted). If a plaintiff
alleges Monell liability for a municipality or official based
on an unofficial policy or custom, then the practice, custom,
or usage must be so widespread and persistent that it has the
force of law. Goode v. Westchester Cnty., No. 18-cv-2963
(NSR), 2019 WL 2250278, at *3 (S.D.N.Y. May 24, 2019).
However, “a single incident alleged in a complaint, especially
if it involved only actors below the policy-making level, does
not suffice to show a municipal policy.” DeCarlo v. Fry, 141
F.3d 56, 61 (2d Cir. 1998) (quoting Ricciuti v. N.Y.C. Transit
Auth., 941 F.2d 119, 122 (2d Cir. 1991) (internal quotation
marks omitted)).
Alternatively, where municipal liability is based on a failure to
train employees, the inadequate training itself must “reflect[ ]
deliberate indifference to ... constitutional rights.” City of
Canton, 489 U.S. at 392. To allege deliberate indifference, a
plaintiff must properly plead (1) “that a policymaker knows
to a moral certainty that [his or] her employees will confront
a given situation”; (2) “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 (3) “that
the wrong choice by the ... employee will frequently cause
the deprivation of a citizen's constitutional rights.” Okin v.
Villiage of Cornwall-On-Hudson Police Dep't, 577 F.3d 415,
440 (2d Cir. 2009).
*12 Here, the Amended Complaint alleges broadly that
Westchester “has engaged in a policy, custom, or pattern and
practice of searching and arresting ethnic minorities without
probable cause or reasonable suspicion” and “illegally
searching unlawfully individuals without any justification
to do so.” (AC ¶¶ 51-52.) The Amended Complaint also
alleges that Defendants “are part of a larger pattern and
practice of similar misconduct, which was so widespread,
pervasive, and consistent” that the constitutionally violative
behavior is “tantamount to an official policy or custom.” (AC
¶ 61.) Plaintiff's claims are insufficient as they are purely
conclusory. See Ying Jing Gan v. City of N.Y., 996 F.2d 522,
536 (2d Cir. 1993) (affirming dismissal of Monell claim where
“[t]he complaint contained only conclusory and speculative
assertions” that the alleged conduct occurred “pursuant to
the practice, custom, policy and particular direction of” the
supervisory official); Yaa-Lengi Ngemi v. Cnty. of Nassau,
87 F. Supp. 3d 413, 419 n.6 (E.D.N.Y. 2015) (“the Court
holds that the conclusory allegations of a policy and practice,
and a lack of training/supervision, are insufficient to state a
plausible Monell claim”)
Further, Plaintiff fails to allege the existence of any other
similar incident, which “dooms Plaintiff's claim because a
custom or policy cannot be shown by pointing to a single
instance of unconstitutional conduct by a mere employee
of the municipality.” Dumel v. Westchester Cnty., No. 19-
CV-2161 (KMK), 2021 WL 738365, at *5 (S.D.N.Y. Feb. 25,
2021) (quoting Ruiz v. Westchester Cnty., No. 18-CV-7007,
2020 WL 4340788, at *7 (S.D.N.Y. July 28, 2020)); see also
Pittman v. City of N.Y., No. 14-CV-4140, 2014 WL 7399308,
at *7 (E.D.N.Y. Dec. 30, 2014) (“A Monell claim cannot
go forward based on conclusory claims regarding a single
incident without more evidence that connects th[e] incident
to a municipal policy or practice.”)
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Next, the Amended Complaint alleges that “policymakers or
supervisors have failed to provide adequate training regarding
the identification of probable cause, reasonable suspicion or
the appropriate amount of force to be used.” (AC ¶ 64.) A
failure to train or supervise constitutes a policy or custom
that is actionable under Section 1983 only where “in light
of the duties assigned to specific officers or employees the
need for more or different training is so obvious, and the
inadequacy so likely to result in the violation of constitutional
rights, that the policymakers ... can reasonably be said to have
been deliberately indifferent to the need.” City of Canton, 489
U.S. at 390. Without any further factual allegations, Plaintiff's
claim that Westchester was aware of these issues and failed
to train, supervise, or discipline their employees is a legal
conclusion rather than a factual allegation sufficient to state a
Monell claim. See Quick v. Westchester Cnty., No. 18-CV-243
(KMK), 2019 WL 1083784, at *5 (S.D.N.Y. Mar. 7, 2019)
(dismissing Monell claim where a plaintiff alleged the failure
to supervise kitchen workers who did not wear hair nets
because the complaint was “devoid of any detailed factual
allegations” that the defendant lacked “a relevant training or
supervisory program” or that it “was otherwise deliberately
indifferent to food preparation problems”); Triano v. Town
of Harrison, 895 F. Supp. 2d 526, 539–40 (S.D.N.Y. 2012)
(dismissing Monell claim where the plaintiff “merely alleged
that the [t]own failed to train its employees, without providing
any supporting factual detail about alleged deficiencies in the
training program”). Plaintiff has not cited any deficiencies in
Westchester's training or supervision protocols.
Accordingly, the federal claims against Westchester, as well
as Pectol and McWilliams in their official capacities are
dismissed.
III. State Law Claims
Lastly, the County Defendants avers that Plaintiff's state law
claims are precluded due to his failure to comply with General
Municipal Law § 50-h. (Mem. at 24-25.) Section 50-h states:
[w]herever a notice of claim is
filed against a city, county, town,
village, fire district, ambulance district
or school district the city, county,
town, village, fire district, ambulance
district or school district shall have
the right to demand an examination
of the claimant relative to the
occurrence and extent of the injuries
or damages for which claim is made,
which examination shall be upon oral
questions unless the parties otherwise
stipulate ... The action ... may
not be commenced until compliance
with the demand for examination if
the claimant fails to appear at the
hearing or requests an adjournment or
postponement beyond the ninety day
period.
*13 N.Y. Gen. Mun. Law § 50-h(1); (5). In federal court,
“a ‘plaintiff's failure to attend a 50-h [h]earing—no matter
the reason—is a complete bar to his state law claims[.]’ ”
Foy v. City of N.Y., No. 1:17-CV-0406, 2019 WL 3717317, at
*9 (E.D.N.Y. Aug. 7, 2019) (emphasis in original) (quoting
Duncan v. City of N.Y., No. 11-CV-3901 (ENV) (JO), 2018
WL 3421312, at *3 (E.D.N.Y. July 13, 2018)).
Here, the County Defendants aver the Court must dismiss
Plaintiff's state law claims for failure to comply with the
oral examination requirement of 50-h as he failed to attend
the scheduled examination. (Mem. at 24-25.) However, the
claims may only be dismissed against Westchester and the
other County Defendants in their official capacities. As Ҥ 50-
h does not refer to claims filed against ‘officers, appointees
and employees’ of municipal corporations ... [it] does not bar
these claims after Plaintiff's failure to attend a municipally
scheduled hearing.” Bradley v. Golphin, No. 14-CV-4289
(NGG) (RML), 2018 WL 480754, at *4 (E.D.N.Y. Jan. 18,
2018) (holding § 50-h did not bar the plaintiff's claim against
defendants sued in their individual capacities); see also Nolan
v. Cnty. of Erie, No. 1:19-cv-01245, 2020 WL 1969329, at
*6 (W.D.N.Y. Apr. 24, 2020) (dismissing state law claims
against the County Defendant only as the claims brought
against the defendants in their individual capacities “are not
subject to dismissal for failure to comply with a demand for
examination”).
Accordingly, the Court grants Defendants' motion to dismiss
Plaintiff's state law claims against Westchester, as well as
against Pectol and McWilliams in their official capacities
only. 3
3 Defendants also argue the Court should dismiss
Plaintiff's state law claims as “retaining jurisdiction
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over state law claims is unwarranted where federal
claims do not survive.” (Mem. at 24.) As at least
one of Plaintiff's federal claims has survived, the
Court will not address this argument.
CONCLUSION
For the foregoing reasons, the County Defendants' motion to
dismiss is GRANTED in part and DENIED in part. Plaintiff's
claims against the County of Westchester and Frank Oliveri,
as well as his claims against B. Pectol and Sgt. McWilliams
in their official capacities are dismissed without prejudice.
Plaintiff's federal causes of action for unlawful search and
seizure, excessive force, malicious abuse of process, denial
of his right to fair trial and due process, deprivation of rights
and denial of equal protection of the laws, conspiracy to
interfere with civil rights and failure to prevent the conspiracy,
and failure to intervene are also dismissed without prejudice.
Plaintiff's remaining claims include his Section 1983 claims
for false arrest and imprisonment and malicious prosecution,
and his state law claims against Defendants B. Pectol and
Sgt. McWilliams in their individual capacities only. Plaintiff
is granted leave to file a Second Amended Complaint in
accordance with this Opinion and Order by July 8, 2022.
Defendants are then directed to answer or otherwise respond
by July 29, 2022.
The Clerk of Court is kindly directed to terminate the motion
at ECF No. 24, and to terminate the Westchester County
Department of Corrections and Westchester County Police
Department as Defendants.
All Citations
Not Reported in Fed. Supp., 2022 WL 2263794
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Bird v. County of Westchester
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 7:20-CV-10076
Bird v. County Of Westchester et al
— S.D.N.Y. Dec. 01, 2020 Docket
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Bird v. County of Westchester
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Fantozzi v. City of New York, Not Reported in Fed. Supp. (2023)
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2023 WL 4472305
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Stephen Joseph FANTOZZI, Plaintiff,
v.
CITY OF NEW YORK, Defendant.
1:21-cv-4439-GHW
|
Signed July 11, 2023
Attorneys and Law Firms
Joseph Michael Stancati, Law Office of Joe Stancati, New
York, NY, for Plaintiff.
MEMORANDUM OPINION AND ORDER
GREGORY H. WOODS, District Judge:
I. INTRODUCTION
*1 This opinion addresses a second motion to dismiss
Plaintiff Stephen Fantozzi's complaint alleging that in May
2018, New York Police Department (“NYPD”) officers
brutally assaulted him while effectuating an arrest without
probable cause. In the first opinion, the Court noted that
because procedural rules have consequences, Plaintiff's
failure to timely serve the individual officers required that
they be dismissed from the case. And that opinion further
detailed the factual inadequacy of Plaintiff's municipal-
liability claim against Defendant City of New York, although
it granted Plaintiff leave to amend that claim.
The City now moves to dismiss Plaintiff's amended
complaint, arguing that it still fails to state a claim on which
relief can be granted. Because Plaintiff's amended complaint
does not contain sufficient allegations to give rise to a
plausible inference that the NYPD's training, supervisory, or
disciplinary procedures were so faulty that they represented
an official policy or custom, the Court agrees. So Defendant's
motion to dismiss is GRANTED.
II. BACKGROUND 1
1 Unless otherwise noted, the facts are taken from the
amended complaint, and are accepted as true for
the purposes of this Rule 12(b)(6) motion. See, e.g.,
Chambers v. Time Warner, Inc., 282 F.3d 147, 152
(2d Cir. 2002). However, “[t]he tenet that a court
must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A. Facts Concerning the Alleged Assault
On May 18, 2018, Plaintiff was seated on a bench at 50
Battery Place in Manhattan. Dkt. No. 36 (“Am. Compl.”)
¶¶ 11–12. Without provocation or probable cause, Officer
Anthony Sclafani approached him and shouted at Plaintiff
to stand up and turn around. Id. ¶ 13. Sclafani repeatedly
“swipe-kicked” Plaintiff's leg, then pulled Plaintiff's leg out
from under him and shoved Plaintiff into the ground. Id. ¶¶
14–15. Then, Sclafani stomped on Plaintiff's lower back and
right hand, which caused severe injury to both body parts. Id.
¶¶ 16–18.
Sclafani then placed Plaintiff in tight handcuffs and
ignored Plaintiff's plea to loosen them; Plaintiff would later
experience “handcuff neuropathy” related to the handcuffing.
Id. ¶¶ 19–20. While still on the ground and handcuffed,
Plaintiff asked Sclafani not to pull him up by his arms
because he had preexisting shoulder injuries. Id. ¶ 22. But
Sclafani did so anyway, which exacerbated those injuries. Id.
¶ 23. A supervising officer, whom Plaintiff believes to be
Officer Angel L. Figueroa, Jr., and ten other unnamed officers
observed all of this but never intervened. Id. ¶¶ 24–27.
Plaintiff, with the handcuffs still on, was put into an
ambulance. Id. ¶ 21, 28. The ambulance took him to Mount
Sinai Morningside Hospital, where he received treatment for
the injuries he sustained from this attack. Id. ¶ 28. Plaintiff's
injuries from the arrest are ongoing and permanent. Id. ¶ 29.
Despite his arrest and alleged mistreatment, no charges were
ever brought against him. Id. ¶ 30.
B. Procedural History
*2 Plaintiff's original complaint, filed in May 2021, brought
claims against Officers Sclafani and Figueroa, Jr., John and
Jane Doe officers, and the City of New York. Dkt. No. 1.
On June 1, 2022, the Defendants jointly moved to dismiss
the complaint, Dkt. No. 29, and the Court granted the motion
through an order and opinion issued on October 20, 2022.
Dkt. No. 34. In that opinion, the Court dismissed Plaintiff's
claims against the individual defendants—Sclafani, Figueroa,
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Jr., and the John and Jane Doe defendants—because Plaintiff's
counsel had failed to serve those defendants, had additionally
failed to show good cause for the failure, and because no
discretionary extension of time was warranted on the facts
presented to the Court. Id. at 8–19. The Court also dismissed
Plaintiff's municipal liability claim against the City of New
York as insufficiently pleaded and abandoned for the purposes
of the motion. Id. at 19–20.
Considering whether Plaintiff should be granted leave to
amend his complaint, the Court noted that any amendment
with respect to the individual defendants would be futile
because the statute of limitations had run on those claims.
Id. at 21. So the Court denied leave to amend concerning
the individual defendants, and dismissed those defendants
from the case. Id. at 21–22. Because it was unclear from
the complaint whether the statute of limitations would bar
Plaintiff's municipal liability claim against the City of New
York, however, the Court granted Plaintiff leave to replead
that claim. Id. Plaintiff did so by filing an amended complaint
on November 4, 2022. Dkt. No. 36 (“Am. Compl.”). The City
of New York, as the lone remaining Defendant, moved to
dismiss that complaint under Federal Rule of Civil Procedure
12(b)(6) on December 29, 2022. Dkt. No. 43 (motion); Dkt.
No. 44 (memorandum in support, or “Def's Mem.”). That
motion is fully briefed. Dkt. No. 48 (Plaintiff's opposition, or
“Pl's Opp.”); Dkt. No. 49 (Defendant's reply, or “Reply”).
C. Contextual Facts About the
New York Police Department
In his amended complaint, Plaintiff pleads a set of “contextual
facts” about the NYPD that he did not raise in his original
complaint. Am. Compl. ¶¶ 31–44. The majority of these facts
are drawn from an October 1, 2015 report issued by the
New York City Department of Investigation's Office of the
Inspector General (the “OIG Report,” or the “Report”). Id. ¶¶
31–41. 2 Plaintiff highlights a number of facts included in the
Report, including that:
• As of the publication of the Report, the NYPD had no
definitions for the terms “force” or “excessive force” in
its Patrol Guide, id. ¶ 32;
• From 2010–2014, the Civilian Complaint Review Board
(the “CCRB”) received over 10,000 complaints alleging
excessive force by the NYPD, id. ¶ 33;
• 207 of these complaints were “substantiated” during that
time, id. ¶ 34;
• In 35.6% of substantiated cases investigated by the OIG,
no discipline was imposed on the subject officer, and in
67.4% of substantiated and investigated cases, discipline
was either not imposed or reduced from the CCRB's
recommendation, id. ¶¶ 35–36;
• In half of the substantiated cases that resulted in an arrest,
the officer completing the arrest report affirmatively
reported that an arrest was not used, id. ¶ 39; and
• At the time the Report was issued, it was “impossible to
accurately and comprehensively track the use of force by
NYPD officers.” Id. ¶ 41.
2 Plaintiff has incorporated the full OIG Report by
reference into his complaint. See Am. Compl.
¶ 31 n.1 (citing New York City Department of
Investigation, Office of the Inspector General for
the NYPD (OIG-NYPD), Police Use of Force in
New York City: Findings and Recommendations
on NYPD's Policies and Practices
(2015), https://www.nyc.gov/html/oignypd/assets/
downloads/pdf/oig_nypd_use_of_force_report_-
_oct_1_2015.pdf.); see also DiFolco v. MSNBC
Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010)
(the Court may consider documents incorporated
by reference into the complaint).
*3 In addition to these facts pulled from the OIG Report,
the Amended Complaint cites three additional facts from
three additional sources. First, citing to a NYPD Misconduct
Complaint Database maintained by the American Civil
Liberties Union (“ACLU”) of New York, Plaintiff notes that
494 substantiated force allegations had been made against
active NYPD officers as of April 2021. Id. ¶ 42. Second, citing
to an additional database, Plaintiff notes that Officer Sclafani
is one such active officer with a substantiated force allegation
against him. Id. ¶ 43. And finally, referencing yet another
database, Plaintiff notes that 577 excessive force lawsuits
were filed against NYPD officers between 2016 and 2020. Id.
¶ 44. 3
3 Plaintiff has incorporated each of these databases
by reference into his complaint. Am. Compl. ¶¶
42–44 & nn. 2–4. Plaintiff, however, has also
attempted to submit an additional declaration
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and additional attachments through his opposition
briefing. Dkt. No. 47. To the extent that those
documents are distinct from those incorporated
through Plaintiff's complaint, they cannot be
considered. See Chambers, 282 F.3d at 153
(limiting the documents that a court may consider
on a motion to dismiss to the complaint, written
instruments attached to the complaint, documents
incorporated by reference, or documents integral
to the complaint); In re Agape, 773 F. Supp. 2d
298, 316 (E.D.N.Y. 2011) (“It is well-settled that a
plaintiff cannot amend the complaint through briefs
and affidavits, and ‘such facts are thus irrelevant for
purposes of determining whether [the Plaintiff's]
[c]omplaint should be dismissed for failure to state
a claim.’ ”) (quoting Pollio v. MF Global, Ltd., 608
F. Supp. 2d 564, 568 n.1 (S.D.N.Y. 2009)). As the
Court noted in its prior opinion, “there are rules
in litigation, and consequences flow from parties'
failure to follow them.” Dkt. No. 34 at 22 n.4.
III. LEGAL STANDARD
Under Rule 12(b)(6), the Court must accept all factual
allegations in the complaint as true and draw all reasonable
inferences in the plaintiff's favor. DiFolco v. MSNBC Cable
LLC, 622 F.3d 104, 110–11 (2d Cir. 2010). To avoid dismissal,
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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A formulaic recitation of the elements of a cause of action,
devoid of supporting facts, does not suffice. Id. To satisfy the
“plausibility” requirement, the plaintiff must plead facts that
permit the court “to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 556).
Determining whether a complaint states a plausible claim is
a “context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Id. at 679.
The court must accept all facts alleged in the complaint as
true and draw all reasonable inferences in the plaintiff's favor.
Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d
Cir. 2008) (per curiam). However,
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
A complaint must therefore contain more than “naked
assertion[s] devoid of further factual enhancement.”
Pleadings that contain “no more than conclusions ... are not
entitled to the assumption of truth” otherwise applicable to
complaints in the context of motions to dismiss.
DeJesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 87–88 (2d Cir.
2013) (alterations in original) (quoting Iqbal, 556 U.S. at 678–
79). Thus, a complaint that offers “labels and conclusions” or
“naked assertion[s]” without “further factual enhancement”
will not survive a motion to dismiss. Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 555, 557).
*4 On a motion to dismiss, a court must generally “limit
itself to the facts stated in the complaint.” Field Day, LLC v.
Cnty. of Suffolk, 463 F.3d 167, 192 (2d Cir. 2006) (quoting
Hayden v. Cnty. of Nassau, 180 F.3d 42, 54 (2d Cir. 1999)). A
court may also consider “documents attached to the complaint
as exhibits, ... documents incorporated by reference in the
complaint ... [and] document[s] integral to the complaint.”
DiFolco, 622 F.3d at 111 (internal quotation marks and
citation omitted). In the Rule 12(b)(6) context, “[a] court's
task is to assess the legal feasibility of the complaint; it is
not to assess the weight of the evidence that might be offered
on either side.” Lynch v. City of New York, 952 F.3d 67, 75
(2d Cir. 2020). “The purpose of Rule 12(b)(6) is to test, in a
streamlined fashion, the formal sufficiency of the plaintiff's
statement of a claim for relief without resolving a contest
regarding its substantive merits. The Rule thus assesses the
legal feasibility of the complaint, but does not weigh the
evidence that might be offered to support it.” Glob. Network
Commc'ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d
Cir. 2006).
IV. DISCUSSION
Plaintiff brings two municipal-liability claims against the City
under 42 U.S.C. § 1983: (1) a failure to train claim, Am.
Compl. ¶¶ 45–51, and (2) a failure to supervise or discipline
claim, id. ¶¶ 52–63. A municipality is not vicariously liable
for its employees' actions under Section 1983. Connick v.
Thompson, 563 U.S. 51, 60 (2011) (citing Monell v. Dep't
of Soc. Servs., 436 U.S. 658, 691 (1978)). Municipalities
are, however, liable for “their own illegal acts.” Id. (quoting
Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986)).
Plaintiffs seeking to hold a municipality liable under Section
1983, through what is sometimes called a “Monell” claim,
must plead “(1) an official policy or custom that (2) causes
the plaintiff to be subjected to (3) a denial of a constitutional
right.” Rodriguez v. Winski, 973 F. Supp. 2d 411, 425
(S.D.N.Y. 2013) (citing Wray v. City of New York, 490 F.3d
189, 195 (2d Cir. 2007)); see Monell, 436 U.S. at 694 (stating
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that “when execution of a government's policy or custom,
whether made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy, inflicts [an]
injury,” then “the government as an entity is responsible under
§ 1983”).
The parties dispute only whether Plaintiff has adequately
alleged an official policy or custom. See Def's Mem. at 3–8;
Pl's Opp. at 2–4. “A plaintiff may satisfy [this] prong[ ] in
one of four ways: by alleging the existence of (1) a formal
policy, (2) action taken or decisions made by policymakers
that caused the violation of plaintiff's rights, (3) a practice
so persistent and widespread that it constitutes a ‘custom or
usage,’ or (4) a failure to properly train or supervise municipal
employees.” Boddie v. City of New York, No. 15-cv-4275,
2016 WL 1466555, at *2 (S.D.N.Y. Apr. 13, 2016) (quoting
Moray v. City of Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y. 1996)).
Here, both of Plaintiff's theories—failure to train and failure
to supervise or discipline—fall into the final category. But
because Plaintiff has failed to plead facts plausibly suggesting
the existence of an official policy or custom through either
theory, Defendant's motion to dismiss will be granted.
A. Failure to Train
Plaintiff has not plausibly stated a failure-to-train claim. “A
municipality's culpability for a deprivation of rights is at
its most tenuous where a claim turns on a failure to train.”
Connick, 563 U.S. at 61. In order for municipal liability to
attach under Section 1983 in this context, “a municipality's
failure to train its employees in a relevant respect must
amount to ‘deliberate indifference to the rights of persons
with whom the [untrained employees] come into contact.’
” Id. (citing City of Canton v. Harris, 489 U.S. 378, 388
(1989)). “[D]eliberate indifference may be inferred where
the need for more or better supervision to protect against
constitutional violations was obvious, ... but the policymaker
fail[ed] to make meaningful efforts to address the risk of harm
to plaintiffs.” Cash v. Cnty. of Erie, 654 F.3d 324, 334 (2d Cir.
2011). In addition, “[t]o allege deliberate indifference in the
context of a failure-to-train claim, a plaintiff must plead facts
giving rise to a plausible inference that (1) the municipality
knows ‘to a moral certainty’ that its employees will confront a
given situation, (2) either the situation presents the employees
with a difficult choice of the sort that training will make
less difficult, or there is a history of employees mishandling
the situation, and (3) the wrong choice by the employee will
frequently cause a constitutional deprivation. Boddie, 2016
WL 1466555, at *4 (quoting Walker v. City of New York, 974
F.2d 293, 297-98 (2d Cir. 1992)).
*5 Plaintiff's claim cannot proceed because it relies on
the 2015 OIG Report, which does not raise any plausible
inferences about the NYPD's training practices at the time
of the alleged incident in 2018. 4 For instance, the OIG
Report states that, in 2015, the “NYPD training [did] not
adequately focus on de-escalation.” OIG Report at 4; see also
Am. Compl. ¶ 32 (noting that the OIG Report “found that the
NYPD had no definitions for the terms ‘force’ or ‘excessive
force’ in its Patrol Guide”). But this and other statements
in the OIG Report about the NYPD's practices in 2015 say
nothing about whether the NYPD had made changes from
2015 to 2018 to implement changes to address this issue. See
OIG Report at 4 (suggesting that the NYPD add courses on
de-escalation). Put differently, Plaintiff has failed to allege
deliberate indifference because, by failing to include any
information about the NYPD's training within the three-year
window before he was arrested, he has not alleged that “the
policymaker fail[ed] to make meaningful efforts to address
the risk of harm to plaintiffs.” Cash, 654 F.3d at 334. So
Defendant's motion to dismiss will be granted as to Plaintiff's
failure-to-train claim.
4 None of the other documents incorporated by
reference into Plaintiff's Amended Complaint—
the ACLU misconduct database, the database of
officers with substantiated force allegations against
them, and the database tracking the number of
excessive force lawsuits—discuss NYPD training
policies; as a result, they cannot support Plaintiff's
failure-to-train claim.
B. Failure to Supervise or Discipline
Plaintiff's claim for failure to supervise or discipline will
likewise be dismissed. A “ ‘persistent failure to discipline
subordinates who violate civil rights’ ... can ‘give rise to
an inference of an unlawful municipal policy of ratification
of unconstitutional conduct within the meaning of Monell.’
” Lucente v. Cnty. of Suffolk, 980 F.3d 284, 298 (2d Cir.
2020) (quoting Batista v. Rodriguez, 702 F.2d 393, 397 (2d
Cir. 1983)). “Such inaction rises to the level of a municipal
policy ‘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
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its subordinates' unlawful actions.’ ” Boddie, 2016 WL
1466555, at *3 (quoting Reynolds v. Giuliani, 506 F.3d 183,
192 (2d Cir. 2007)).
Plaintiff's allegations do not satisfy this standard. As an initial
matter, several of Plaintiff's statistics from both the OIG
Report and other sources concern allegations or complaints
made against the NYPD, but do not connect those complaints
to disciplinary decisions or a failure to supervise. See Am.
Compl. ¶ 33 (noting that from 2010 to 2014, there were over
10,000 excessive-force complaints filed with the CCRB);
id. ¶ 44 (noting that from 2016 to 2020, 557 lawsuits were
filed against NYPD officers for excessive force). Numbers
of allegations, standing alone, say little about the merits of
those allegations. The statistics show that most of the reports
of misconduct were not ultimately substantiated. See Fabian
v. City of New York, No. 16-cv-5296, 2018 WL 2138619,
at *7 (S.D.N.Y. May 9, 2018) (noting that the total number
of substantiated allegations—207—“represents a mere two
percent of the approximately 10,000 complaints of force
lodged with the CCRB between 2010 and 2014”); OIG Report
at 1 (describing the 207 substantiated allegations of force as
“a notably modest number, given the size of NYPD”). And
even statistics about substantiated use of force allegations,
decoupled from any assertion of how the NYPD responded to
those substantiated cases, cannot speak to (or plausibly allege)
any failure to discipline. See Am. Compl. ¶ 34 (noting the
207 substantiated use of force allegations in the OIG Report);
id. ¶ 42 (noting 494 substantiated use of force allegations
against current NYPD officers as of April 2021); see Boddie,
2016 WL 1466555, at *3 (noting that complaints of excessive
force do not plausibly “allege persistent failure to discipline
officers for using excessive force during the relevant time
period” (internal quotation marks omitted)); Vann v. City of
New York, 72 F.3d 1040, 1049 (2d Cir. 1995) (noting that
an inference of indifference arises only where “complaints
are followed by no meaningful attempt on the part of the
municipality to investigate or to forestall further incidents”).
*6 Plaintiff does provide some statistics that connect
substantiated force allegations to discipline imposed as
a result, but they are likewise insufficient to sustain
his failure-to-discipline claim. He notes that, over the
period studied in the OIG Report (2010–2014), the NYPD
imposed no discipline on officers in 35.6% of cases
involving substantiated force allegations, and either imposed
no discipline or departed downward from the CCRB's
recommendations in 67.4% of such cases. Am. Compl. ¶¶ 35–
36. To be sure, these statistics suggest that—as of 2015—
there was significant room for improvement in the NYPD's
supervision and discipline of officers who used excessive
force. But taking the inverse of Plaintiff's cited statistics,
they also show that discipline was imposed in 64.4% of
substantiated force cases during the 2010–2014 period, and
that discipline at or above the CCRB's recommendations
was imposed 32.6% of the time. See also Delorbe-Bell v.
City of New York, No. 15-cv-2344, 2016 WL 1451581, at
*3 (S.D.N.Y. Apr. 12, 2016) (noting that the data from
the OIG Report “shows that the NYPD imposed discipline
in the majority of cases where allegations of excessive
force were substantiated,” and that in approximately one-
third of such cases, the officer received “the most serious
disciplinary measure [that] can be filed against an officer”).
These statistics, therefore, do not show that the NYPD was
“faced with a pattern of misconduct and [did] nothing,” as is
necessary for disciplinary or supervisory inaction to rise to
the level of municipal policy. Reynolds, 506 F.3d at 192.
Plaintiff's lead case, McCants v. City of Newburgh, No. 14-
cv-556, 2014 WL 6645987 (S.D.N.Y. Nov. 21, 2014), is
readily distinguishable. See Pl's Opp. at 3–4. In McCants,
Judge Vincent Briccetti declined to dismiss a Monell claim
where the plaintiff, in addition to alleging that the City
failed to monitor or properly train NYPD officers, “detail[ed]
seventeen excessive force claims made against the City”
prior to the incident in question that were apparently “similar
violations” to the ones alleged by the plaintiff in McCants.
McCants, 2014 WL 6645987, at *4 (quoting Simms v.
City of New York, 480 F. App'x 627, 630 (2d Cir. 2012)
(summary order)). Plaintiff's pleadings here, by contrast,
point generically to use of force allegations against the City,
without connecting any specific allegations (substantiated
or not) to his case. See Am. Compl. ¶¶ 31–44. So they
do not raise the same inference of deliberate indifference
that Judge Briccetti found adequate to sustain the claim in
McCants, or that other judges have similarly found sufficient
to state a plausible Monell claim. See Marlin v. City of
New York, No. 15-cv-2235, 2016 WL 4939371, at *20–
21 (S.D.N.Y. Sept. 7, 2016) (permitting a Monell claim
brought by an Occupy Wall Street protestor to proceed,
in part because the plaintiff alleged that the NYPD had a
pattern of using excessive force “particularly against Occupy
Wall Street protestors”); Osterhoudt v. City of New York,
No. 10-cv-3173, 2012 WL 4481927, at *2 (E.D.N.Y. Sept.
27, 2012) (permitting a Monell claim to proceed where the
plaintiff connected “his Monell theory with the particulars
of his own arrest,” and distinguishing dismissed cases where
plaintiffs had not done so). Instead, because Plaintiff's claim
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Fantozzi v. City of New York, Not Reported in Fed. Supp. (2023)
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is supported only by general statistics about the NYPD
without connecting those statistics to the specific allegations
of excessive force here, it is similar to Monell claims that have
been dismissed pursuant to Rule 12(b)(6) motions. See, e.g.,
Boddie, 2016 WL 1466555, at *3 (dismissing a failure-to-
discipline claim that did not point to “other similar occasions”
in the pleadings); Delorbe-Bell, 2016 WL 1451581, at *3
(dismissing a failure-to-discipline claim that relied solely on
the OIG Report).
Finally, and perhaps most dispositively, Plaintiff's failure-
to-discipline claim cannot proceed because it contains no
allegations about the NYPD's supervisory or disciplinary
practices at the time that he was allegedly assaulted in 2018.
Instead, the allegations about failure to discipline come solely
from the OIG Report. See Am. Compl. ¶¶ 35–36. 5 As
discussed above in connection with the failure-to-train claim,
that means that the amended complaint has nothing to say
about whether the NYPD's practices concerning supervision
or discipline changed or improved after the release of the OIG
Report in 2015. Cf. Boddie, 2016 WL 1466555, at *3 (noting
that even for the last two years assessed by the OIG Report,
“the number of incidents in which a complaint of excessive
force was substantiated and the offending officer was not
disciplined was ‘trending downward’ ” (quoting OIG Report
at 4)). Put simply, a complaint devoid of allegations about
the NYPD's supervisory or disciplinary process when the
alleged deprivation of constitutional rights occurred does not
show any “inaction” relevant to the Monell inquiry—let alone
“inaction ris[ing] to the level of a municipal policy” because
the government was “faced with a pattern of misconduct and
[did] nothing.” Id. at *3 (quoting Reynolds, 506 F.3d at 192).
As a result, Defendant's motion to dismiss will be granted as
to Plaintiff's second claim also.
5 Plaintiff's facts about the time period in which
the alleged assault occurred, by contrast, do not
allege anything about supervision or discipline.
See Am. Compl. ¶ 42 (“As of April of 2021,
494 substantiated force allegations had been found
against individuals who remained active NYPD
officers.”); id. ¶ 44 (“From 2016 through 2020,
577 lawsuits were filed against NYPD officers for
allegedly using excessive force against civilians.”).
V. LEAVE TO AMEND
*7 Plaintiff is denied leave to amend is complaint a second
time. The decision to grant or deny leave to amend lies
within the Court's discretion. Lobatto v. Berney, No. 98-
cv-1984, 1999 WL 672994, at *10 (S.D.N.Y. Aug. 26, 1999)
(citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Although
Fed. R. Civ. P. 15(a)(2) requires the Court to “freely give
leave [to amend] when justice so requires,” this rule must
also “be construed, administered, and employed by the court
and the parties to secure the just, speedy, and inexpensive
determination of every action and proceeding.” Fed. R. Civ.
P. 1.
In granting the first motion to dismiss, the Court rejected
Plaintiff's municipal liability claim as insufficiently pleaded,
see Dkt. No. 34 at 19–20, and gave Plaintiff the opportunity
to amend his complaint to respond to its opinion. But
Plaintiff's amended complaint has failed to cure the deficient
pleadings. In that circumstance, courts routinely deny leave
to amend, and the Court does so here. See, e.g., Rubenstein
v. Knight-Swift Transp. Holdings, Inc., No. 19-cv-7802, 2021
WL 3855863, at *4 (S.D.N.Y. Aug. 27, 2021) (“To grant
Plaintiffs leave to amend would be allowing them a ‘third
bite at the apple,’ which courts in this district routinely
deny.”) (quoting Binn v. Bernstein, No. 19-cv-6122, 2020
WL 4550312, at *34 (S.D.N.Y. July 13, 2020), report and
recommendation adopted, 2020 WL 4547167 (S.D.N.Y. Aug.
6, 2020)); Steadman v. Mayo, No. 09-cv-5154, 2012 WL
1948804, at *6 (S.D.N.Y. Mar. 27, 2012) (denying plaintiff
leave to replead and dismissing claims with prejudice where
he failed to state adequate factual allegations after the court
had dismissed a prior complaint and explained that plaintiff
failed to allege adequate facts).
VI. CONCLUSION
For the reasons outlined above, Defendant's motion to dismiss
is GRANTED WITH PREJUDICE.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2023 WL 4472305
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 294 of 529

Fantozzi v. City of New York
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (7)
Title PDF Court Date Type
1. Appellant's Reply Brief
Stephen Joseph FANTOZZI, Plaintiff-Appellant, v. CITY
OF NEW YORK, Defendant-Appellee, John and Jane Doe
1 through 10, NYPD Officers, in their individual and official
capacities (the names John and Jane Doe being fictitious,
as their true names are presently unknown), Anthony P.
Sclafani, NYPD Police Officer, in his individual and official
capacity; and Angel L. Figueroa, Jr., NYPD 1st Precinct
Commanding Officer, in his individual and official capacity,
Defendants.
2024 WL 549947
— C.A.2 Feb. 05, 2024 Brief
2. Brief for Appellees
Stephen Joseph FANTOZZI, Plaintiff-Appellant, v. CITY
OF NEW YORK, Defendant-Appellee, John and Jane Doe
1 through 10, NYPD Officers, in their individual and official
capacities (the names John and Jane Doe being fictitious,
as their true names are presently unknown), Anthony P.
Sclafani, NYPD Police Officer, in his individual and official
capacity, and Angel L. Figueroa, Jr., NYPD 1st Precinct
Commanding Officer, in his individual and official capacity,
Defendants.
2023 WL 9017726
— C.A.2 Dec. 27, 2023 Brief
3. Brief for Plaintiff-Appellant
Stephen Joseph FANTOZZI, Plaintiff-Appellant, v. CITY
OF NEW YORK, Defendant-Appellee, John and Jane Doe
1 through 10, NYPD Officers, in their individual and official
capacities (the names John and Jane Doe being fictitious,
as their true names are presently unknown), Anthony P.
Sclafani, NYPD Police Officer, in his individual and official
capacity; and Angel L. Figueroa, Jr., NYPD 1st Precinct
Commanding Officer, in his individual and official capacity,
Defendants.
2023 WL 8433957
— C.A.2 Nov. 30, 2023 Brief
4. Brief for Plaintiff-Appellant
Stephen Joseph FANTOZZI, Plaintiff-Appellant, v. CITY
OF NEW YORK, Defendant-Appellee.
2023 WL 8276138
— C.A.2 Nov. 27, 2023 Brief
5. Brief for Plaintiff-Appellant
Stephen Joseph FANTOZZI, Plaintiff-Appellant, v.
CITY OF NEW YORK; NYPD Police Officer Anthony P.
Sclafani; NYPD 1st Precinct Commanding Officer Angel
L. Figueroa, Jr.; and NYPD Officers John and Jane Doe 1
through 10, individually and in their official capacities (the
names John and Jane Doe being fictitious, as their true
names are presently unknown), Defendants-Appellees.
2023 WL 8187411
— C.A.2 Nov. 21, 2023 Brief
6. Docket 23-1111
Fantozzi v. City of New York
— C.A.2 Aug. 03, 2023 Docket
7. Docket 1:21-CV-04439
Fantozzi v. City of New York et al
— S.D.N.Y. May 17, 2021 Docket
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 295 of 529

Fantozzi v. City of New York
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
History (3)
Direct History (2)
1. Fantozzi v. City of New York
2023 WL 4472305 , S.D.N.Y. , July 11, 2023
Affirmed by
2. Fantozzi v. City of New York
2024 WL 1597745 , 2nd Cir.(N.Y.) , Apr. 12, 2024
Related References (1)
3. Fantozzi v. City of New York
343 F.R.D. 19 , S.D.N.Y. , Oct. 20, 2022
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 296 of 529

Stalter v. County of Orange, Not Reported in Fed. Supp. (2016)
2016 WL 8711397
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2016 WL 8711397
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Charles STALTER, Plaintiff,
v.
COUNTY OF ORANGE, Kenneth
Jones, and Dennis Barry, Defendants.
No. 15-cv-5274 (NSR)
|
Signed 08/05/2016
Attorneys and Law Firms
Michael Howard Sussman, Sussman & Watkins, Goshen, NY,
for Plaintiff.
Sharon Kay Worthy-Spiegl, County Attorney, Goshen, NY,
for Defendants.
OPINION & ORDER
NELSON S. ROMÁN, Unites States District Judge
*1 Plaintiff Charles Stalter brings this action against
Defendants the County of Orange (“County of
Orange”), Kenneth Jones, and Dennis Barry (collectively,
“Defendants”) alleging violations of his rights under the
First Amendment. Presently before the Court is Defendants'
motion to dismiss the Complaint (ECF No. 1) pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF
No. 19.) For the following reasons, Defendants' motion is
GRANTED in part and DENIED in part.
BACKGROUND
The following facts are taken from the Complaint unless
otherwise noted, and are accepted as true for purposes of this
motion.
In 2006, the County of Orange hired Plaintiff as a Corrections
Officer in the Orange County Jail. (Compl. ¶ 11.) In 2010,
Plaintiff transferred to the Criminal Division of the County of
Orange as a Deputy Sheriff. (Id. ¶ 14.) Plaintiff was placed
on a probationary term for that position and was granted
permanent status in January 2012. (Id. ¶¶ 15–18.)
In or about October 2012, Plaintiff was estranged and
separated from his then pregnant wife and had moved out of
their marital residence. (Id. ¶ 21.) Also in or about October
2012, Plaintiff met another Deputy Sheriff, Janine Johnson,
who was hired in March 2012 and still completing her
probationary term. (Id. ¶¶ 19–20.) In January 2013, Plaintiff
became romantically involved with Johnson. (Id. ¶ 19.) In
or about March 2013, Plaintiff and Johnson began living
together and have since resided together. (Id. ¶ 23.) Also in
March 2013, Plaintiff's spouse filed for divorce, an action that
was still pending when this case was commenced. (Id. ¶ 22.)
In early February 2013, Plaintiff's mother-in-law advised
Plaintiff that she had spoken to Defendant Barry, who at
the time served as a captain in the Orange County Sheriff's
office and now is the Chief Deputy Sheriff. (Id. ¶¶ 6, 26.)
Plaintiff's mother-in-law told Plaintiff that she informed Barry
of rumors that Plaintiff was romantically involved with a
female deputy. (Id. ¶ 26.) When Plaintiff confronted Barry,
he denied having spoken with Plaintiff's mother-in-law. (Id.
¶¶ 28–29.) During that conversation, Plaintiff disclosed to
Barry that he was romantically involved with Johnson. (Id.
¶ 27.) Barry responded by telling Plaintiff that he should
limit his contact with Johnson, but did not formally order
him to do so. (Id. ¶ 30.) On or about February 7, 2013,
Barry told Johnson that he was aware of her relationship
with Plaintiff and that they were in violation of the office's
non-formal “anti-fraternization policy.” (Id. ¶ 31.) Barry told
Johnson that she should end her relationship with Plaintiff,
but did not formally order her to do so. (Id. ¶ 34.) At the
time Barry spoke to Johnson, there was no formal policy
prohibiting romantic relationships between equal ranking
officers; however, Barry maintained that the Sheriff's Office
prohibited casual romantic relationships. (Id. ¶¶ 31–33.) On
or about February 15, 2013, Plaintiff and Johnson exchanged
several text messages while riding together as passengers in
the back seat of a county vehicle to and from a meeting in
White Plains. (Id. ¶ 35.) After discovering that Plaintiff and
Johnson had been texting, Barry informally reprimanded both
of them and officially separated them at work. (Id. ¶ 36.)
*2 On or about February 22, 2013, Plaintiff learned that
his estranged spouse had withdrawn all of the money from
his bank account and exhausted his credit cards. (Id. ¶ 37.)
On that same day, while both were off duty, Plaintiff visited
Johnson's residence to access her internet. (Id. ¶ 37.) While
he was at Johnson's residence, Plaintiff's wife and mother-in-
law arrived and unlawfully entered Johnson's residence. (Id.
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¶ 38.) An altercation ensued in which Plaintiff's mother-in-
law assaulted Johnson, which prompted Plaintiff to call the
police. (Id. ¶¶ 38–39.) When the police arrived, they took
statements and ultimately charged Plaintiff's mother-in-law
with, inter alia, assault. (Id. ¶ 39.) During the altercation,
Plaintiff's wife called Barry and told him that her mother was
being arrested for assault. (Id. ¶ 41.) Barry then told Jones, the
Undersheriff of Orange County, and Investigator Gorelick,
who was dispatched to the scene, to direct both Plaintiff and
Johnson to report to him after the police cleared the scene.
(Id. ¶ 42.)
Plaintiff and Johnson later reported to Barry, who assigned
them to desk duty on different shifts and confiscated their
weapons. (Id. ¶ 43.) Barry then officially ordered Plaintiff to
cease all contact, including off-duty contact, with Johnson.
(Id. ¶ 44.) Jones ordered Johnson to cease all contact,
including off-duty contact, with Plaintiff. (Id. ¶ 44.) Plaintiff
and Johnson spent the night together on February 23, 2013
but had no further contact until on or about March 18, 2013.
(Id. ¶ 47.)
On or about February 26, 2013, Jones ordered Johnson to draft
a memo to him detailing her contact with the Plaintiff during
the preceding eight weeks. (Id. ¶ 48.) Johnson submitted a
memorandum to Jones, which included the night of February
23, 2013 (one day after Jones's order to cease contact with
Plaintiff). (Id. ¶ 49.) On March 18, 2013, the Sheriff's Office,
through then-Chief Richard P. Onorati, charged Johnson with
misconduct. (Id.) Johnson was suspended without pay for
two weeks and sanctioned with a six month extension of her
probationary term. (Id. ¶ 59.) Additionally on March 18, 2013,
the Sheriff's Office charged Plaintiff with misconduct. (Id.
¶ 52.) The charges against Plaintiff sought his termination;
however, Plaintiff challenged the charges and was suspended
pending resolution of the charges by arbitration. (Id. ¶¶ 54,
61.) During Plaintiff's suspension, he and Johnson continued
their relationship while both were off-duty. (Id. ¶ 62.)
On May 6, 2013 Barry ordered Johnson to provide him with
a memorandum detailing all contact she had with Plaintiff
since returning to work. (Id. ¶ 63.) On May 8, 2013, Johnson
responded that she regularly had contact with Plaintiff while
off duty and at her private residence in Sullivan County.
(Compl. ¶ 64.) On May 10, 2013, Johnson was notified that
her employment was terminated for “failure to complete your
probationary term.” (Id. ¶ 65.) About a week later at a meeting
with the Appointing Authority, Johnson was advised that her
employment was terminated because of her relationship with
Plaintiff, and not her job performance. (Id. ¶ 66.)
On or about September 6, 2013, Johnson commenced an
action in New York State Supreme Court, County of Orange,
and named the County of Orange itself and Carl Dubois,
the elected Sheriff of Orange County, as respondents. (Id.
¶¶ 9, 67-68.) Johnson claimed that her termination was
arbitrary, capricious, and in violation of her constitutional
right to intimate association because her termination was
premised upon her romantic relationship with Plaintiff. (Id.
¶ 67.) Additionally on September 6, 2013, Plaintiff provided
a sworn affidavit in support of Johnson's petition (the
“Affidavit”). (Id. ¶ 69.) In the Affidavit, Plaintiff provided
testimony that was critical of Barry and the Sheriff's Office,
and supported Johnson's contention that her termination
was improper and unlawful. (Id. ¶ 70.) The Affidavit also
included testimony that the Sheriff's Office had knowledge
of other intra-office romances in the past, and officers in
these relationships had not been similarly punished. (Id. ¶
72.) Plaintiff provided three, specific examples of other intra-
office romances in which the participants were not subject
to the same punishment. (Id. ¶ 73.) Jones was aware of
the Affidavit, as he provided an affidavit in support of the
county's motion to dismiss Johnson's petition. (Id. ¶ 74.)
Plaintiff also claims that Barry was aware of the Affidavit,
because of Barry's high rank and substantial involvement in
the events leading to Johnson's termination. (Id. ¶ 75.)
*3 On September 3, 2013, Plaintiff was charged with
possession of stolen property. (Id. ¶ 78.) The stolen property
was his old Sheriff's ID, which Plaintiff was required to have
turned in when he obtained a new ID. (Id. ¶ 78.) Plaintiff
claims that when he obtained the new ID, nobody ever advised
him that he needed to return the old one. (Id. ¶ 79.) The
Sheriff's Office learned that Plaintiff still had the ID and
charged him with improperly possessing it. (Id. ¶ 81.) On
September 12, 2013, Plaintiff's arbitration commenced. (Id.
¶ 77.) Plaintiff entered in a settlement agreement with the
Sheriff's Office in resolution of both the March 18, 2013
charge and the September 3, 2013 charge. (Id. ¶ 82.) Plaintiff
agreed to a 120 day suspension without pay as a result of the
charges. (Id. ¶ 83.)
On December 2, 2013, Plaintiff returned to work. (Id. ¶ 84.)
Upon his return, he was ordered to complete 30 days of field
training (“FTO”), which entails riding with another deputy
and completing FTO sheets indicating his performance in
certain areas. (Id. ¶ 85.) Approximately 45 days after his
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return, Plaintiff handed in the FTO sheets to his direct
supervisor, Sergeant Marron. (Id. ¶ 86.) Sergeant Marron
approved the FTO sheets and passed them on to Lt. Dreyer,
who approved them and passed them on to Lt. Hamil, who
approved them and passed them on to Captain Barry. (Id. ¶
87-89.) Barry rejected the FTO sheets as inadequate, claiming
that none of the deputies completing Plaintiff's FTO sheets
other than Deputies Bell and Monahan were authorized to do
so. (Id. ¶ 90.) Plaintiff was ordered to re-complete his FTO.
(Id. ¶ 93.) Plaintiff claims that all of the deputies that approved
his FTO sheets had been allowed to sign off on FTO sheets
for other deputies without incident. (Id. ¶ 91.) Plaintiff also
claims that nobody had ever advised him that when he began
his FTO that only Bell and Monahan could sign off on his FTO
sheets, and that he was led to believe that all of the deputies
he rode with were allowed to sign off for him. (Id. ¶¶ 91–92.)
On or about February 19, 2014, Plaintiff received an email
from the FTO sergeant, Sgt. Butterfield, stating that he was
only allowed to FTO with Deputy Bell or Deputy Monahan,
and if neither were available, that he was to remain at the
station. (Id. ¶ 94.) That day, Plaintiff contacted his PBA 1
representatives and complained that the Sheriff's Office was
acting unreasonably with respect to his FTO. (Id. ¶ 95.)
Approximately two weeks later, the PBA contacted Jones
and advised him that the Sheriff's Office could only require
Plaintiff to complete “refresher training,” not FTO. (Id. ¶¶ 96–
97.) Subsequently, Jones and Barry still required Plaintiff to
report to Sgt. Butterfield, complete FTO Sheets, and only ride
with Sgt. Bell or Sgt. Monahan. (Id. ¶ 97.)
1 The PBA that Plaintiff references throughout
the Complaint stands for Police Benevolent
Association of the County of Orange. They are a
labor union that represents the County of Orange
Sheriff's Department and represented Plaintiff
during the time the allegations occurred.
About two weeks later, Plaintiff submitted another packet of
completed FTO sheets to his supervisor Sgt. Marron. (Id. ¶
98.) Sgt. Marron approved the sheets and advised Plaintiff to
submit them to Lt. Dreyer. (Id. ¶ 99.) Lt. Dreyer told Plaintiff
that the FTO sheets “looked good,” but that his current status
would continue until he heard otherwise. (Id. ¶ 100.) About
three or four days later, with 24 hours' notice, Plaintiff was
transferred from the A-Line shift to the B-Line day shift,
in violation of the collective bargaining agreement, which
requires that a deputy have at least 28 days' notice prior to
a transfer. (Id. ¶ 101.) Plaintiff was advised on his transfer
that he “did not need to worry about FTO,” but that he was
only permitted to ride with one of the seven deputies on that
shift, or not at all. (Id. ¶ 102.) Plaintiff claims that Lt. Hamil
and Sgt. Pallen, two higher ranking officers, met with four of
the deputies assigned to ride with Plaintiff and directed them
to find violations so that they could write Plaintiff up. (Id.
¶ 103.) Plaintiff claims Deputy Galipani told Plaintiff about
that meeting and cautioned him that “they were coming for
you.” (Id. ¶ 104.) Plaintiff understood this to be reference
to Barry and Jones, from whom all the orders regarding his
discipline had originated. (Id. ¶ 104.) Plaintiff remained on
the B-line shift for about a week, and then was abruptly
transferred back to the A-line shift. (Id. ¶ 105.) He was
also again advised to only ride with Deputy Bell or Deputy
Monahan. (Id. ¶ 105.) Sgt. Marron also advised Plaintiff that
if neither Bell nor Monahan were available, that he could ride
by himself in the case of an arrestee pickup or to respond to
a 911 poll. (Id. ¶ 106.)
*4 On or about April 8, 2014, at about 12:15 a.m., Plaintiff
was at the station and heard an emergency call for an officer
needing assistance at the Town of Goshen courthouse. (Id.
¶ 108.) Plaintiff and Deputy Brandon Edwards responded to
the call, and Plaintiff drove Edwards to the courthouse. (Id. ¶
109–15). It had been raining and the roads were wet, so on the
way to the courthouse, as Plaintiff was making a right turn,
the car fishtailed and the rear side clipped a guardrail, leaving
a scratch on the car. (Id. ¶ 116.) Once Plaintiff and Edwards
arrived at the courthouse, the situation had de-escalated and
their assistance was no longer needed, so they returned to the
station. (Id. ¶ 117.) Once he returned to the station, Plaintiff
reported the accident and damage to the car. (Id. ¶ 118.) On
May 12, 2014, Barry, having been promoted to Chief, issued
a Personnel Order that charged Plaintiff with responding with
poor judgment, driving recklessly, leaving the scene of an
accident, and damaging a department vehicle. (Id. ¶ 119.) The
charge sought Plaintiff's termination. (Id. ¶ 120.)
Plaintiff was suspended pending resolution of the charges by
arbitration. (Id. ¶ 123.) Plaintiff claims that the Sheriff's Office
has not sought the termination of other deputies alleged to
have engaged in similar misconduct. (Id. ¶ 124.) In particular,
Deputy Pagnillo, who had a prior disciplinary record for
damaging department vehicles, ran a red light and was
broadsided by a car as he drove through the intersection. (Id.
¶ 125, 127.) The vehicle in that instance was demolished and
his passenger claimed she was injured, and consequently sued
Deputy Pagnillo. (Id. ¶ 126.) Deputy Pagnillo was offered a
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30 day suspension following that incident, and eventually was
able to negotiate that to a three week suspension. (Id. ¶ 127.)
Plaintiff's arbitration commenced in June 2014, and after one
hearing day, the second day was scheduled for October 10,
2014. (Id. ¶ 129.) Plaintiff claims that after the first day of
the hearing, Jones told the PBA President Lopez that he was
going to call Plaintiff back to work, stick him in a small room
with no windows where he could “count the ceiling tiles”
all day and that, if Plaintiff “so much as broke a pencil,”
Jones would propound further disciplinary charges. (Id. ¶
130.) Following this conversation, Jones ordered Plaintiff to
return to work on July 30, 2014. (Id. ¶ 131.)
Prior to his return to work, Plaintiff became “fed up” with
being singled out for mistreatment by Barry and Jones for no
reason other than his romantic relationship with Johnson and
his participation in her litigation against the County, and as
a result, Plaintiff decided that he would resign. (Id. ¶ 132.)
He reported back to work on July 30, 2014, met with his two
captains, and offered them a formal resignation letter. (Id. ¶
133.) The letter contained 4 terms: (1) that he would be placed
on full administrative leave until October 10, 2014; (2) that all
discipline and related charges be removed from his personnel
file; (3) that the Sheriff's Office would not pursue any further
disciplinary charges against him; and (4) that the Sheriff's
Office would not make any unfavorable remarks about him
to other agencies with which he might seek employment. (Id.
¶ 133.) The captains seemed receptive, and Captain Hamil
indicated that he needed to call “the Number 2,” and left the
room to do so. (Id. ¶¶ 134, 136.) Plaintiff claims “Number 2”
is a reference to Jones, who, as Undersheriff, is the second
in command. Further, according to Sheriff's Office policy,
Jones is the appropriate person that Captain Hamil would
speak to in seeking approval for the proposed conditions in
the resignation letter. (Id. ¶ 136.)
A few minutes later, Captain Hamil returned to the room and
stated that the Sheriff's Office would agree to all terms except
the last one. (Id. ¶ 135.) Plaintiff advised Captain Hamil that
was unacceptable and that the last term was necessary. (Id.
¶ 137.) Plaintiff stated that he needed to step out to call his
union attorney to advise him of the negotiation process and
to get advice. (Id. ¶ 138.) Hamil assented and told Plaintiff to
do so, knowing that Plaintiff would not get cell phone service
in the building and would have to leave the premises to make
the call. (Id. ¶ 139.) Plaintiff left the premises to call the union
attorney from the gas station. (Id. ¶ 140.) The union attorney
did not answer, so Plaintiff left him a message. (Id. ¶ 141.) A
few minutes later, the PBA vice president, Jeremy Yela, called
Plaintiff and told him that Chief Barry was ordering him back
to the premises. (Id. ¶ 142.) When he returned, he was ordered
to go to the Chief's office. (Id. ¶ 144.) Once he entered the
Chief's office, Barry then slid a letter of resignation across the
table to Plaintiff and told him to sign it. (Id. ¶ 144.) The letter
did not contain any of the terms in Plaintiff's proposed letter
except for the administrative leave until October 10, 2014, the
effective date of his resignation. (Id. ¶ 145.) Captain Hamil
then entered the room and told Plaintiff he had two minutes
to sign the letter. (Id. ¶ 146.) Hamil told him that if he did
not sign the letter within two minutes, he would be brought
up on charges of leaving his post without authorization and
dereliction of duty for having left the premises to call his
union attorney. (Id. ¶ 147.) Feeling coerced, Plaintiff signed
the letter and left the premises. (Id. ¶ 148.)
STANDARD ON A MOTION TO DISMISS
*5 To survive a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim
upon which relief can be granted, a complaint must include
“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 Atlantic Corp. v. Twombly,
550 U.S. 554, 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. (citing Twombly, 550 U.S. at
556).
“When there are well-pleaded factual allegations [in the
complaint], a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Iqbal, 556 U.S. at 679. The court must “take
all well-plead factual allegations as true, and all reasonable
inferences are drawn and viewed in a light most favorable to
the plaintiff.” Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996).
However, the presumption of truth does not extend to “legal
conclusions, and threadbare recitals of the elements of the
cause of action.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009) (quoting Iqbal, 556 U.S. 662) (internal quotation marks
omitted). A plaintiff must provide “more than labels and
conclusions” to show he is entitled to relief. Twombly, 550
U.S. at 555.
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DISCUSSION 2
2 While the Complaint asserts an Equal Protection
claim, Plaintiff withdraws that claim in his
opposition papers. (Plaintiff's Memorandum in
Opposition to the Defendants' Motion to Dismiss
(“Pl.'s Opp.”), ECF No. 23, at 5). Courts permit
parties to withdraw claims via responses to a
motion to dismiss. See, e.g., Colliton v. Donnelly,
No. 07-cv-1922 (LTS) (THK), 2008 WL 1910175,
at *1 (S.D.N.Y. Apr. 30, 2008) (holding that the
plaintiff withdrew two of their seven claims by
stating so in their memorandum of law opposing
the defendants' motion to dismiss). Therefore, the
Court dismisses the Equal Protection claim.
I. First Amendment Retaliation Claim
“A plaintiff asserting a First Amendment retaliation claim
must establish that: ‘(1) his speech or conduct was protected
by the First Amendment; (2) the defendant took an adverse
action against him; and (3) there was a causal connection
between this adverse action and the protected speech.’ ”
Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir.
2015) (quoting Cox v. Warwick Valley Cent. Sch. Dist., 654
F.3d 267, 272 (2d Cir. 2011)). Though Defendants do not
dispute that Plaintiff has satisfied the first two prongs of a First
Amendment retaliation claim, 3 they assert that he has not
alleged sufficiently a causal connection between the protected
speech and adverse action.
3 The Affidavit easily satisfies the first prong of a
First Amendment retaliation claim. See Local 621,
S.E.I.U., AFL-CIO v. City of New York, No. 99
CIV.9025, 2002 WL 31151355, at *16 (S.D.N.Y.
Sept. 26, 2002) (holding that testifying truthfully
is constitutionally protected from retaliation). With
respect to the second prong, once Plaintiff returned
to work on December 2, 2013, Defendants Barry
and Jones commenced an ongoing course of
retaliation. This course of adverse action included
requiring Plaintiff to complete unnecessary FTO
and “refresher training,” changing his shifts
from A-shift to B-shift without proper notice,
propounding charges that sought his termination
for damaging a department vehicle, and ultimately
coercing him into resigning.
*6 “ ‘[P]roof of causation can be shown either: (1) indirectly,
by showing that the protected activity was followed closely
by discriminatory treatment, or through other circumstantial
evidence such as disparate treatment of fellow employees
who engaged in similar conduct; or (2) directly, through
evidence of retaliatory animus directed against the plaintiff
by the defendant.’ ” Hicks v. Baines, 593 F.3d 159, 170 (2d
Cir. 2010) (quoting Gordon v. N.Y. City Bd. of Educ., 232 F.3d
111, 117 (2d. Cir. 2000)). In the present case, Plaintiff alleges
only an indirect causal connection between the Affidavit and
the adverse treatment at work.
A. Temporal Proximity
Defendants argue that the temporal proximity between the
Affidavit of September 6, 2013 and the adverse treatment that
occurred is too attenuated to establish a causal connection.
The Second Circuit has held that there is no “ ‘bright line to
define the outer limits’ ” of causation inferred from temporal
proximity and encourages district courts to exercise their
judgment with respect to permissible inferences that may be
made regarding the sufficiency of temporal proximity. Summa
v. Hofstra Univ., 708 F.3d 115, 128 (2d Cir. 2013) (quoting
Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009)). Notably,
in analyzing the temporal relationship between protected
activity and adverse action, courts focus on whether “the
adverse action occurred at the first actual opportunity to
retaliate.” Summa, 708 F.3d at 128.
In this case, when Plaintiff drafted the Affidavit, Plaintiff
was suspended from work. Plaintiff alleges that upon his
return to work, Defendants Barry and Jones commenced an
ongoing course of adverse treatment of Plaintiff. In particular,
Barry forced Plaintiff to conduct FTO training, only to reject
his FTO sheets even though they were previously approved
by other officers. (Compl. ¶ 90.) Plaintiff was only relieved
of the FTO training requirement when the PBA President
informed Jones that he could only require Plaintiff to undergo
refresher training, not FTO. (Id. ¶¶ 96–97.) Next, Plaintiff
faced disciplinary charges that sought his resignation. (Id.
¶ 120.) Finally, Plaintiff was coerced to sign a resignation
letter on unfavorable terms. (Id. ¶ 148.) Even though the
allegedly adverse treatment occurred between 3 to 10 months
after Plaintiff provided his sworn statement in the Affidavit,
it appears that Defendants retaliated against Plaintiff at the
first opportunity they had following the end of his suspension.
Accordingly, though Plaintiff's resignation did not occur until
10 months after the Affidavit, the Complaint plausibly alleges
a close temporal relationship in light of Plaintiff's allegations
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that the adverse treatment commenced almost immediately
upon his return to work.
B. Disparate Treatment
In support of his causation argument, Plaintiff also argues
that he was subject to disparate treatment. In particular,
Plaintiff asserts that he was treated differently than other
employees with respect to his FTO training and the discipline
he faced following the April 2014 automobile accident.
With respect to FTO, Plaintiff alleges that Barry told him
that only officers Bell and Monahan could sign off on his
FTO sheets. However, Plaintiff alleges that other officers
undergoing such training were allowed to seek approval from
additional officers. (Compl. ¶ 91.) Plaintiff also claims that
he was treated differently from other officers involved in
automobile accidents with department vehicles. Specifically,
Plaintiff alleges that Deputy Pagnillo, who had a prior
disciplinary record, ran a red light and collided with another
vehicle that injured another officer in the passenger seat.
Deputy Pagnillo's charges sought a 30 day suspension,
which was subsequently negotiated down to a 21 day
suspension, whereas Plaintiff, who also was involved in
an automobile accident, received charges that sought his
termination. (Compl. ¶¶ 119–128.) In light of this alleged
disparate treatment, as well as Plaintiff's temporal proximity
argument, Plaintiff sufficiently alleges a causal connection
between assisting Johnson in her case and his adverse
treatment. Therefore, the Court declines to dismiss Plaintiff's
First Amendment retaliation claim. 4
4 The Court is not persuaded by Defendants'
additional defenses to Plaintiff's retaliation claim.
First, with respect to Defendant Barry, Defendants
assert that he is not liable because he did not
know about the Affidavit. While lack of knowledge
of protected activities on the part of particular
individual defendants may defeat an allegation of
a causal connection (Gordon v. New York City
Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000))
(citing Alston v. New York City Transit Auth., 14
F. Supp. 2d 308, 312-13 (S.D.N.Y. 1998)), the
Complaint specifically alleges that Barry knew
about the Affidavit. In particular, Plaintiff alleges
that because he mentioned Barry at several points in
his sworn statement, it is plausible that the County
of Orange's attorneys shared this testimony with
Barry. Second, with respect to Defendant Jones,
Defendants contend that Jones should not be held
liable for the adverse treatment of Plaintiff (i.e.,
the FTO training and coerced resignation) because
Jones did not participate in or facilitate those
adverse actions. Those arguments are refuted by the
well-pled allegations in the Complaint. First, the
Complaint alleges Jones was notified by the PBA
President that he and Barry were not permitted to
force Plaintiff to undergo FTO training. Second, the
Complaint alleges that Captain Hamil told Plaintiff
he had to consult with the “number 2” regarding
Plaintiff's resignation, which Plaintiff understood
to be a reference to Jones. Taken as true, Plaintiff's
allegations are sufficient to state a claim against
Jones.
II. First Amendment Intimate Association Claim
*7 Plaintiff next contends that Defendants violated his
constitutional right to intimate association by retaliating
against him at work for his relationship with Johnson.
In Roberts v. U.S. Jaycees, the Supreme Court explained
that the Constitution protects “certain kinds of highly
personal relationships ... from unjustified interference by
the State.” 468 U.S. 609, 618 (1984). While the Supreme
Court has not established “precise boundaries” as to which
“highly personal relationships” are entitled to constitutional
protections, Bd. of Directors of Rotary Int'l v. Rotary
Club of Duarte, 481 U.S. 537, 545 (1987), the Court in
Roberts described them as “involving deep attachments
and commitments to the necessarily few other individuals
with whom one shares not only a special community of
thoughts, experience, and beliefs, but also distinctively
personal aspects of one's life.” 468 U.S. at 619. In that
vein, the Supreme Court noted that “[d]etermining the limits
of state authority over an individual's freedom to enter
into a particular association therefore unavoidably entails
a careful assessment of where the relationship's objective
characteristics locate it on a spectrum from the most intimate
to the most attenuated of personal attachments.” Id. at 620.
Those “objective characteristics” include the “size, purpose,
policies, selectivity, congeniality, and other characteristics
that in a particular case may be pertinent.” Id. In the
present case, Defendants argue that Plaintiff's extramarital
relationship is not the type of “highly personal relationship”
protected by the Constitution, and, in any event, Defendants
Barry and Jones are shielded from liability by qualified
immunity.
In Bates v. Bigger, a court from this District was confronted
with an intimate association claim for a relationship that
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closely resembles the relationship between Plaintiff and
Johnson. 192 F. Supp. 2d 160 (S.D.N.Y.), aff'd, 56 Fed.Appx.
527 (2d Cir. 2002). In that case, the plaintiffs were two officers
in the Orange County Sheriff's Department that alleged they
were retaliated against by senior officers in the department for
their extramarital affair, in violation of their right to intimate
association. While Judge Conner noted “that the precise
nature of their relationship is difficult to define,” he concluded
that, in light of the fact that the plaintiffs were still living with
their spouses when the relationship commenced and that they
did not reside together or finalize their divorces until a later
date, the “plaintiffs' association during the relevant time frame
could therefore be defined as a dating relationship, albeit an
extra-marital, adulterous one.” Id. Judge Conner continued
that the
Plaintiffs' relationship may have been “highly personal,”
and displayed attributes of “relative smallness, a high
degree of selectivity in decisions to begin and maintain
the affiliation, and seclusion from others in critical aspects
of the relationship.” However, in the time frame that the
complained of events occurred, their association plainly
failed to exemplify the considerations that “attend the
creation and sustenance of a family.”
Id. (quoting Roberts, 468 U.S. at 620). Ultimately, Judge
Conner concluded that it was “open to debate” as to
“whether [the] plaintiffs' relationship was constitutionally
protected.” Id. Judge Conner declined to resolve that debate,
as he concluded that the individual defendant was entitled
to qualified immunity because to the extent the plaintiffs
enjoyed a right to intimate association, it was not a clearly
established one. Id. In a summary order, the Second Circuit
affirmed Judge Conner's opinion, noting that the Circuit has
“not decided whether [the right to intimate association under
the First Amendment] applies to persons whose intimate
relationship is adulterous.” 56 Fed.Appx. 527, 529 (2d Cir.
2002).
The Sixth Circuit also has addressed a similar factual
scenario. See Marcum v. McWhorter, 308 F.3d 635 (6th Cir.
2002). In Marcum, the plaintiff, a deputy sheriff, separated
from his wife and met a woman, Rena Abbott, through work.
Id. at 637. The plaintiff and Ms. Abbott did not discuss
cohabitation prior to moving in together, and Ms. Abbott
described their relationship as a roommate-like relationship.
Id. The district court determined that the relationship between
the plaintiff and Ms. Abbott was not entitled to constitutional
protection. Id. at 638. The Sixth Circuit affirmed, finding “that
the adulterous nature of the relationship does not portray a
relationship of the most intimate variety afforded protection
under the Constitution.” Id. at 640.
*8 The Sixth Circuit relied upon the Supreme Court's
decision in Bowers v. Hardwick, 478 U.S. 186 (1986).
In Bowers, the Supreme Court held that there was no
fundamental right of “homosexuals to engage in acts of
consensual sodomy,” noting that “[p]roscriptions against that
conduct have ancient roots.” Id. at 192. Though the Supreme
Court in Bowers was analyzing the right to privacy, the Sixth
Circuit nevertheless found the case instructive in analyzing
the right to intimate association. Drawing upon Bowers'
reasoning, the Sixth Circuit noted that “proscriptions against
adultery have ancient roots.” 308 F.3d at 641-42. The court
continued that “[b]ased on the historical treatment of adultery,
a right to engage in an intimate sexual relationship with the
spouse of another cannot be said to be either deeply rooted in
this Nation's history and tradition or implicit in the concept of
ordered liberty.” Id. at 642. In light of the fact that Bowers was
subsequently overruled by the Supreme Court in Lawrence v.
Texas, 539 U.S. 558 (2003), this Court is not persuaded by the
Sixth Circuit's holding in Marcum.
As the Supreme Court stated in Roberts, a determination
of whether a relationship falls within the ambit of the
constitutional protections for intimate association requires
a “careful assessment of [ ] the relationship's objective
characteristics....” 468 U.S. at 620. At the motion to dismiss
stage, that assessment is necessarily premised upon the
description of the relationship in the operative pleadings.
Accordingly, the Court looks to the Complaint's description
of the relationship between Plaintiff and Johnson to determine
whether it is the sort of highly personal relationship afforded
constitutional protection. First, with respect to size, the Court
notes that the relationship is solely between Plaintiff and
Johnson. Second, Plaintiff's relationship with Johnson is of
a romantic nature. While much of Plaintiff and Johnson's
relationship occurred while Plaintiff was still married to
his wife, Plaintiff had already filed for divorce in March
2013 and was separated from his wife when he began
his relationship with Johnson. Plaintiff and Johnson have
remained exclusive with each other, and continue to maintain
a relationship to this day. Additionally, Plaintiff and Johnson
are currently engaged 5 and are soon to be married. From
March 2013 to July 2014 while Plaintiff suffered the alleged
adverse actions at work, Plaintiff and Johnson maintained
their long-term relationship. In light of the fact that the
Court must take the allegations in the Complaint as true at
this stage of the litigation, and “[a]bsent binding authority
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holding that the ‘extramarital’ nature of the relationship
categorically excludes it from protection,” the Court cannot
say that, as a matter of law, Plaintiff's relationship with
Johnson is not entitled to constitutional protection under the
First Amendment. Fetchick v. Eslinger, No. 6:15-CV-96-
ORL-28TBS, 2016 WL 3030168, at *3 (M.D. Fla. May 25,
2016).
5 As Plaintiff and Johnson were not engaged at the
time the Complaint was filed, Plaintiff references
this for the first time in his Memorandum in
Opposition to Defendant's Motion to Dismiss the
Complaint. (Pl.'s Opp. at 13, n.7.)
III. Qualified Immunity Defense to Intimate Association
Claim
Defendants Barry and Jones argue that they are entitled
to qualified immunity with respect to Plaintiff's intimate
association claim. “A defendant enjoys qualified immunity if
he can show that either ‘(a) [his] action did not violate clearly
established law, or (b) it was objectively reasonable for [him]
to believe that his action did not violate such law.’ ” Savino v.
Town of Southeast, 983 F. Supp. 2d 293, 308 (S.D.N.Y. 2013),
aff'd, 572 Fed.Appx. 15 (2d Cir. 2014) (quoting Johnson
v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 250 (2d
Cir. 2001) (internal quotation marks and citations omitted)).
In order for a constitutional right to be clearly established,
“[t]he contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.” Anderson v. Creighton, 483 U.S. 635,
635 (1987). This ensures that a reasonable officer has “fair
warning” that his/her conduct violated the plaintiff's rights.
Hope v. Pelzer, 536 U.S. 730, 740 (2002). In analyzing
whether or not a reasonable officer would have received a
“fair warning,” the court considers “ ‘(1) whether the right
in question was defined with “reasonable specificity”; (2)
whether the decisional law of the Supreme Court and the
applicable circuit court support the existence of the right in
question; and (3) whether under preexisting law a reasonable
defendant official would have understood that his acts were
unlawful.’ ” Matusick, 757 F.3d at 60 (quoting Ying Jing Gan
v. City of N.Y., 996 F.2d 522, 532 (2d Cir. 1993)).
*9 Neither the Second Circuit nor the Supreme Court has
resolved the issue of whether extramarital relationships are
entitled to constitutional protection. Accordingly, for the same
reasons as discussed by Judge Conner in Bates, as affirmed by
the Second Circuit, 6 the Court finds that to the extent Plaintiff
enjoys a constitutional protection for his relationship with
Johnson, that right is not clearly established and therefore
Defendants Barry and Jones are entitled to qualified immunity
on Plaintiff's intimate association claim. 7
6 “Although we have recognized a right to intimate
association under the First Amendment, we have
not decided whether this right applies to persons
whose intimate relationship is adulterous. Nor has
the Supreme Court ruled on the question.” 56
Fed.Appx. at 529 (citing City of N. Muskegon
v. Briggs, 473 U.S. 909, 910 (1985)) (White, J.,
dissenting from denial of certiorari) (observing
a split among courts “over whether extra-marital
sexual activity, including allegedly unlawful
adulterous activity, is constitutionally protected in
a way that forbids public employers to discipline
employees who engage in such activity.”).
7 While Plaintiff endeavors to argue his right to
intimate association is clearly established, the cases
he relies upon are not binding upon this Court. See,
e.g., Silverstein v. Lawrence Union Free Sch. Dist.
No. 15, No. 10-cv-993 (SJF) (WDW), 2011 WL
1261122, at *6 (E.D.N.Y. Feb. 15, 2011), report
and recommendation adopted, No. 10-cv-0993
(SJF) (WDW), 2011 WL 1261114 (E.D.N.Y. Mar.
30, 2011); Berrios v. State Univ. of New York at
Stony Brook, 518 F. Supp. 2d 409, 421 (E.D.N.Y.
2007); and Briggs v. North Muskegon Police
Department, 563 F. Supp. 585 (W.D. Mich. 1983),
aff'd, 746 F.2d 1475 (6th Cir. 1984), cert. denied
by, City of North Muskegon v. Briggs, 473 U.S. 909
(1985).
IV. Monell Liability
The Court now turns to Plaintiff's claims against the County
of Orange. 8 It is well settled that “[g]overnment officials
may not be held liable for the unconstitutional conduct of
their subordinates under a theory of respondeat superior.”
Iqbal, 556 U.S. at 676. Rather, a municipal entity can only
be held vicariously liable under § 1983 if the “execution
of a government's policy or custom ... inflicts the injury....”
Monell v. Dep't of Social Servs. of the City of N.Y., 436 U.S.
658, 694 (1978). Thus, Monell dictates that any § 1983 claim
against a municipal entity must be premised on the theory
that the municipal actor's allegedly unconstitutional “acts
were performed pursuant to a municipal policy or custom.”
Patterson v. Cnty. of Oneida, 375 F.3d 206, 226 (2d Cir. 2004);
see generally Monell, 436 U.S. at 692-94.
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8 Though the Court dismissed Plaintiff's First
Amendment intimate association claim against
the individual Defendants on qualified immunity
grounds, the County of Orange is not entitled to
assert that defense. See Curley v. Vill. of Suffern,
268 F.3d 65, 71 (2d Cir. 2001). Accordingly, the
Court addresses the validity of both the retaliation
and intimate association claims against the County
of Orange.
Courts in this Circuit apply a two prong test for § 1983
claims brought against a municipal entity. Vippolis v. Vill.
of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (internal
citation omitted). First, the plaintiff must “prove the existence
of a municipal policy or custom in order to show that
the municipality took some action that caused his injuries
beyond merely employing the misbehaving officer.” Id.
“Second, the plaintiff must establish a causal connection—an
‘affirmative link’—between the policy and the deprivation of
his constitutional rights.” Id. (citing City of Oklahoma City v.
Tuttle, 471 U.S. 808, 836, n.8 (1985)).
*10 To satisfy the first requirement, a plaintiff must allege
the existence of:
(1) a formal policy which is officially
endorsed by the municipality; (2)
actions taken or decisions made by
government officials responsible for
establishing municipal policies which
caused the alleged violation of the
plaintiff's civil rights; (3) a practice
so persistent and widespread that it
constitutes a custom or usage and
implies the constructive knowledge of
policy-making officials; or (4) a failure
by official policy-makers to properly
train or supervise subordinates to such
an extent that it amounts to deliberate
indifference to the rights of those with
whom municipal employees will come
into contact.
Moray v. City of Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y.
1996)(internal citations and quotation marks omitted); see
also Brandon v. City of New York, 705 F. Supp. 2d 261, 276-77
(S.D.N.Y. 2010) (quoting Moray and updating citations to
cases). A plaintiff is not required to identify an express rule
or regulation in order to establish a Monell claim, and a
court may infer a municipal policy from acts or omissions
of the municipality's policy makers, 9 but in the absence of
other evidence, a “single incident of errant behavior is an
insufficient basis for finding that a municipal policy caused
plaintiff's injury.” Sarus v. Rotundo, 831 F.2d 397, 402-03
(2d Cir. 1987); see also DeCarlo v. Fry, 141 F.3d 56, 61
(2d Cir. 1998) (“[A] single incident alleged in a complaint,
especially if it involved only actors below the policy-making
level, does not suffice to show a municipal policy.”) (quoting
Ricciuti v. N.Y. City Transit Auth., 941 F.2d 119, 123 (2d
Cir. 1991)) (internal quotation marks omitted); see also City
of St. Louis v. Praprotnik, 485 U.S. 112, 123, 125 (1988)
(plurality opinion) (explaining that only municipal officials
with “final policymaking authority” concerning particular
activities giving rise to plaintiff's claims “may by their actions
subject the government to § 1983 liability”) (internal citation
omitted). “In the end, therefore, a plaintiff must demonstrate
that, through its deliberate conduct, the municipality was the
moving force behind the alleged injury.” Hayes, 853 F. Supp.
2d at 439 (quoting Roe v. City of Waterbury, 542 F.3d 31, 37
(2d Cir. 2008)) (internal quotation marks omitted).
9 In Pembaur v. City of Cincinnati, the Supreme
Court stated that municipal liability under § 1983
may be established by even the single act of
a municipal policymaker whose acts represent
official policy. 475 U.S. 469, 480 (1986).
In the present case, Plaintiff propounds two, alternative
theories of Monell liability. First, Plaintiff claims that the final
policymaker of the County of Orange, Sheriff Dubois, was
aware of the actions of Defendants Barry and Jones, and,
by not intervening, acquiesced in his subordinates' actions,
rendering their actions official municipal policy. These
allegations, however, do not support any of the cognizable
theories of Monell liability. “[R]ubber-stamp[ing]” or
“turn[ing] a blind eye” to subordinate decision-making is
not sufficient to establish either a municipal policy or the
delegation of policymaking authority. Baity v. Kralik, 51
F. Supp. 3d 414, 442 (S.D.N.Y. 2014) (citing Praprotnik,
485 U.S. at 130). Plaintiff cannot assert Monell liability
simply by alleging Sheriff Dubois, who is not named as a
defendant, knew of the actions of his employees. Plaintiff
must demonstrate that the final policymaker himself caused
the deprivation of rights at issue. See Jett v. Dallas Indep. Sch.
Dist., 491 U.S. 701, 737 (1989).
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Alternatively, Plaintiff contends that Sheriff Dubois delegated
all final, disciplinary authority to Defendant Jones, and that
Jones' actions constitute municipal policy. Authority to make
municipal policy may be granted either directly by legislative
enactment or may be delegated by an official who possesses
such authority. Pembaur, 475 U.S. at 483. The official need
not possess broad, policymaking authority; rather, the inquiry
for the court is whether the official “had final policymaking
authority in the particular area involved.” Jeffes v. Barnes,
208 F.3d 49, 57 (2d Cir. 2000) (citing Jett, 491 U.S. at 737;
Praprotnik, 485 U.S. at 123-25).
*11 Plaintiff's counsel asserted a nearly identical theory
of Monell liability in Baity. In that case, Plaintiff's counsel
“argued that [the sheriff] delegated his hiring authority to the
undersheriff [ ], thus making [the undersheriff] the official
policymaker for the County with respect to employment
policy in the Sheriff's Office and rendering [the undersheriff]
the ‘policymaker’ for Monell purposes.” 51 F. Supp. 3d at
441–42. Judge Karas rejected this argument on a number of
grounds: (1) there was no evidence in the record to support the
plaintiff's theory; (2) the plaintiff failed to provide the court
with any supporting case law; and (3) the plaintiff did not
name the undersheriff as a defendant. Id. at 442.
Notably, the court in Baity considered that theory of Monell
liability at the summary judgment stage. Accordingly, Judge
Karas' first basis for rejecting the plaintiff's argument in Baity
is irrelevant to the Court's present analysis. On a motion
to dismiss, all Plaintiff is required to do is plead facts that
plausibly give rise to an entitlement to relief. See Iqbal,
556 U.S. at 679. The court must “take all well-plead factual
allegations as true, and all reasonable inferences are drawn
and viewed in a light most favorable to the plaintiff.” Leeds
v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996). The Complaint
alleges that Sheriff DuBois “delegated all final policy-
making authority as to disciplinary matters to defendant
Jones.” (Compl. ¶¶ 160, 173.) That assertion is bolstered
by the allegation that Captain Hamil told Plaintiff he would
have to seek approval of Plaintiff's proposed resignation letter
from the Number 2, which Plaintiff contends is a reference
to Defendant Jones. (Id. ¶ 136.) With respect to Judge Karas'
second basis for rejecting the plaintiff's theory in Baity, the
Supreme Court was clear in Pembaur that “[a]uthority to
make municipal policy ... may be delegated by an official who
possesses such authority....” 475 U.S. at 483. Finally, Judge
Karas' third basis for rejecting the plaintiff's argument in Baity
is inapplicable here because Plaintiff names Defendant Jones
—the Undersheriff of the County of Orange—as a defendant.
While the Court is skeptical that Plaintiff will prevail on his
claims against the County of Orange as the case progresses, at
this stage of the litigation, Plaintiff sufficiently alleges Monell
liability on the basis that Defendant Jones was delegated
final policy-making authority. See Deloughery v. City of
Chicago, No. 02C-2722, 2002 WL 31654942, at *3 (N.D.
Ill. Nov. 25, 2002) (expressing skepticism regarding the
plaintiff's ability to prove his delegation Monell claim, yet
denying defendants' motion to dismiss). The Court cautions
Plaintiff that as the case progresses, to prove such a claim,
Plaintiff must marshal sufficient evidence that Sheriff Dubois
delegated final policymaking authority as to disciplinary
matters to Defendant Jones. Sheriff Dubois' non-involvement
in Plaintiff's termination, absent additional evidence of
delegation of policymaking authority to Defendant Jones,
cannot substantiate Monell liability.
CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss
is GRANTED in part and DENIED in part. The Court
dismisses Plaintiff's Equal Protection claims and the intimate
association claim against Defendants Barry and Jones.
The remaining claims are the First Amendment intimate
association claim against the County of Orange and the
First Amendment retaliation claim against all Defendants.
Defendants are directed to file an answer to the remaining
claims within 30 days hereof. The parties are directed to
appear for an in-person conference on September 28, 2016
at 11:00 a.m. The parties are further directed to submit a
completed case management plan. The Court respectfully
directs the Clerk to terminate the motion at ECF No. 19.
*12 SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2016 WL 8711397
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Stalter v. County of Orange
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 7:15-CV-05274
Stalter v. County of Orange et al
— S.D.N.Y. July 08, 2015 Docket
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Stalter v. County of Orange
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History (2)
Direct History (1)
1. Stalter v. County of Orange
2016 WL 8711397 , S.D.N.Y. , Aug. 05, 2016
Related References (1)
2. Stalter v. County of Orange
345 F.Supp.3d 378 , S.D.N.Y. , Nov. 05, 2018
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Damon v. New York, Not Reported in Fed. Supp. (2023)
2023 WL 11965130
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 11965130
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
David O. DAMON, Plaintiff,
v.
State of NEW YORK, et al., Defendants.
No. 8:23-CV-74 (GLS/CFH)
|
Signed March 28, 2023
Attorneys and Law Firms
David O. Damon, 24282, Franklin County Jail, 45 Bare Hill
Road, Malone, New York 12953, Plaintiff pro se.
REPORT-RECOMMENDATION AND ORDER
Christian F. Hummel, United States Magistrate Judge
I. Background
*1 Plaintiff pro se David O. Damon (“plaintiff”) purported
to commence this action on December 19, 2022, by filing a
complaint in the U.S. District Court of the Southern District
of New York. See Dkt. No. 2 (“Compl.”). In lieu of paying
the court's filing fee, he submitted a motion to proceed in
forma pauperis (“IFP”). See Dkt. No. 1. On January 19,
2023, the case was transferred to the U.S. District Court
for the Northern District of New York. See Dkt. Nos. 4, 5.
This Court subsequently administratively closed the action
because plaintiff's IFP application was not certified. See Dkt.
No. 6. The Court ordered plaintiff to either pay the full
$402.00 filing fee or to submit a completed and signed IFP
application. See id. at 2. Plaintiff filed a completed IFP motion
on January 30, 2023, and the Court reopened the case. See
Dkt. Nos. 8, 9, 10. The undersigned has reviewed plaintiff's
IFP motion and determines that he financially qualifies to
proceed IFP for the purpose of filing. 1
1 Plaintiff is advised that although he has been
granted IFP status, he is still required to pay any
fees and costs he may incur in this action.
II. Initial Review
A. Legal Standard
Section 1915 2 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). It is a court's responsibility to
determine that a plaintiff may properly maintain his complaint
before permitting him to proceed with his action.
2 The language of 1915 suggests an intent to
limit availability of IFP status to prison inmates.
See 28 U.S.C. § 1915(a)(1) (authorizing the
commencement of an action without prepayment
of fees “by a person who submits an affidavit that
includes a statement of all assets such prisoner
possesses”). The courts have construed that section,
however, as making IFP status available to any
litigant who can meet the governing financial
criteria. See, e.g., Fridman v. City of N.Y., 195 F.
Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002).
Where, as here, the plaintiff proceeds pro se, “the court
must construe his [or her] 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) (citation and internal quotation marks
omitted). This does not mean the Court is required to accept
unsupported allegations that are devoid of sufficient facts
or claims. Although detailed allegations are not required at
the pleading stage, the complaint must still include enough
facts to provide the defendants with notice of the claims
against them and the grounds on which these claims are
based. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell
Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). Pro se
litigants are “not exempt ... from compliance with relevant
rules of procedural and substantive law[.]” Traguth v. Zuck,
710 F.2d 90, 95 (2d Cir. 1983) (citation omitted). Ultimately,
the plaintiff must plead “enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550 U.S. at 570. “A
claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678 (citation omitted).
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*2 Pleading guidelines are set forth in the Federal Rules
of Civil Procedure (“Fed. R. Civ. P.”). Specifically, Rule
8 provides that a pleading which sets forth a claim for
relief shall contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” FED. R. CIV.
P. 8(a)(2). “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, 55 (N.D.N.Y.
1999) (internal quotation marks and citations omitted). Rule
8 also requires the pleading to include “a short and plain
statement of the grounds for the court's jurisdiction” and “a
demand for the relief sought ....” FED. R. CIV. P. 8(a)(1), (3).
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)(1).
Further, Rule 10 provides in pertinent part that:
[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 55
(internal quotation marks and citations omitted). A complaint
that fails to comply with the pleading requirements “presents
far too [ ] heavy [a] burden in terms of defendants’ 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). The
Second Circuit has held that “[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) (citation 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. (citation omitted). If
dismissal is warranted and the plaintiff is pro se, the court
generally affords the plaintiff leave to amend the complaint.
See Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995).
B. Plaintiff's Complaint
Plaintiff seeks to bring this action against the Franklin County
District Attorney's Office; Kelly Poupore, an Assistant
District Attorney; New York State Troopers; Michael Perry,
Investigator with New York State Troopers; Franklin County
Jail; “Franklin County Child Support Court”; Franklin
County Public Defender's Office; Thomas Soucia, Franklin
County Public Defender; Anson Rhodes, Franklin County
Conflict Defender; the Franklin County Conflict Defender's
Office; Tammy Gordon, Law Guardian; and the Saint
Lawrence County District Attorney's Office. See Compl. at 2.
Following the filing of his complaint, plaintiff wrote a letter
to the Court, alleging new facts and claims against Franklin
County Jail and Franklin County Sherriff J. Cook. See Dkt.
No. 7 at 2-4. 3 Plaintiff alleges violations of his constitutional
rights pursuant to 42 U.S.C. § 1983 and a conspiracy among
the named defendants pursuant to 42 U.S.C. § 1985. See
generally Compl; Dkt. No. 7.
3 Plaintiff originally filed his complaint on or about
December 19, 2022. See Compl. He filed his letter
seeking to add claims and a defendant on or about
January 30, 2023. See Dkt. No. 7. On March 13,
2023, plaintiff filed another letter with the Court,
asserting new information and asking about the
status of his case. See Dkt. No. 11. At this early
stage of the case, and in deference to plaintiff's pro
se status, the undersigned will treat the letters as
supplements to the complaint and consider them as
a single pleading for purposes of initial review. The
Clerk of Court is directed to add Franklin County
Sherriff J. Cook as a defendant on the docket.
1. Factual Allegations
*3 Plaintiff alleges that on February 14, 2022, State
Trooper Michael Perry and Child Protective Services (“CPS”)
Investigator Marcell Almond questioned plaintiff about “the
background of the alleged victim including possible trauma,
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home life.” Compl. at 9. It appears that the alleged victim
is plaintiff's daughter. See id. at 8-9. Plaintiff explained the
victim's background including her mother being arrested for
assault and moving out of the state, and the victim accusing
others of sexual assault. See id. at 9. Perry and Almond asked
plaintiff to consent to a polygraph test, which he declined. See
id. at 10. Plaintiff then invoked his right to counsel. See id.
The next day, on February 15, 2022, plaintiff “arrived home ...
to find that [his] house was occupied by the New York State
Troopers, led by Mr. Perry.” Compl. at 10. After plaintiff got
out of his vehicle he “was [f]risked and placed in the back
of a patrol car.” Id. Plaintiff alleged that a search warrant
was not produced until after the search of his home, and
that during the search, investigators unplugged a lamp which
resulted in his pet snake dying. See id. Plaintiff states, “[a]s
mentioned in pre-trial motions filed to the Franklin County
Court by Attorney Peter Dumas, the warrant was not a ‘no-
knock’ warrant and it was executed without giving any notice
to me or my counsel.” Id. at 10-11. Plaintiff alleges that the
warrant was overly broad and the evidence seized “was used
to prejudice the grand jury.” Id. Plaintiff also contends that
his attorney has requested a copy of the grand jury minutes,
which have been denied. See id.
Plaintiff asserts that “[b]etween February 15 and Feb. 17,
the alleged victim was interviewed alone by Mr. Perry and
Assistant District Attorney Kelly Poupore[ ]” and that the
interviews “were witnessed by Stephen Damon[.]” Compl. at
11. Plaintiff alleges that the interview resulted in an argument
at which time someone stated “that there was insufficient
evidence to substantiate charges[.]” Id. However, following
the interview, and a grand jury proceeding, three indictments
were handed down. See id. at 11-12.
Plaintiff states that he believes some of what was presented
to the grand jury, because he “was accused of such in a
Huntly [sic] hearing[,]” was that he “allegedly used child
pornography to groom the alleged victim.” Compl. at 12.
He contends that a search of his electronics revealed no
such information. See id. He asserts that Perry committed
perjury by testifying under oath that plaintiff berated the child
and blamed her for their family problems. See id. at 12-13.
Plaintiff also states that his request for an attorney when being
questioned by Perry was “used to prejudice a grand jury in the
[government's] favor.” Id. at 13.
Plaintiff contends that he was arrested at his home on
February 18, 2022. See Compl. at 13. He was then “taken to
the Franklin County Jail where [he has] been ever since.” Id.
He was arraigned and made aware of the three charges against
him on February 22, 2022. See id. Plaintiff was denied bail,
“although [he has] no prior convictions, made no attempt to
interfere with the investigation and made no attempt to evade
police or contact the alleged victim.” Id. Plaintiff states that
following his arraignment, his former fiancée and “[a]nother
former paramour,” were interviewed by investigators but
their statements have not been turned over to plaintiff or his
attorney. Id. at 14. Plaintiff contends that he was offered a plea
deal but that “[t]he deal itself seems to be a punishment that is
excessive compared to the typical sentence of similar crimes.”
Id. at 15. His trial was originally scheduled for July 11, 2022,
but the government sought extensions. See id. at 16. Plaintiff
alleges that the government told the victim that if she did not
testify at trial, plaintiff would be released, and she would be
forced to live with him. See id.
*4 Next, plaintiff states that he was “re-arrested and
arraigned on 8 more charges[ ]” on July 11, 2022. Compl. at
16. He alleges, “[t]he ADA told my father that the reason for
the additional charges was that I would not take the deal and
the probability of the charges standing a jury trial were low
and she wanted more time.” Id. At a discovery conference on
August 23, 2022, evidence was discussed that has never been
provided to him. See id. at 17. The trial judge was asked to
recuse himself from the case after being accused of showing
favoritism to plaintiff and plaintiff's case was transferred
to St. Lawrence County Court where he was arraigned on
September 7, 2022. See id. During his arraignment, plaintiff
was not allowed to speak to his attorney without a trooper
being present. See id. at 17-18.
On September 25, 2022, plaintiff's attorney filed twenty-
nine pre-trial motions concerning the search of his home,
exculpatory evidence that had not been produced, and
dismissal of the indictment. See Compl. at 18. Oral argument
on the motions was scheduled for October 11, 2022, but the
government “refused to go to court and the hearing did not
happen.” Id. Plaintiff alleges that as of December 2022, a new
date had not been scheduled. See id.
Plaintiff had sole custody of his children, but because he
was in jail, his father applied for custody. See Compl.
at 23. Plaintiff alleges that legal guardian Tammy Gordon
asked his children where they wanted to live, and they
each stated that they wanted to live with plaintiff. See id.
Plaintiff states that “the attorneys chose not to share that
information with the court.” Id. “The attorneys from that point
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attempted to make the executive decision that [plaintiff had]
no rights to [his] daughter whatsoever.” Id. at 24. Anson
Rhodes, plaintiff's family court attorney, “refused to address”
plaintiff's concerns. Id. Plaintiff contends that Tammy Gordon
sought to have plaintiff's parental rights revoked, but the court
denied the request. See id.
On September 21, 2022, “at a pre-trial conference, Anson
Rhodes told [plaintiff] that [his] daughter wanted nothing
to do with [him] because of what [he had] done and that
the rest of the attorneys were angry with [him] because
he was holding up the process.” Compl. at 24-25. Plaintiff
requested to have the family court proceedings adjourned
pending resolution of the criminal case, but Anson Rhodes
refused to make a motion to adjourn. See id. at 25. Plaintiff
contends that the children's mother filed to have child support
adjusted and for plaintiff's father to be designated at the payee.
See id. at 26. A summons was issued to plaintiff's house,
although he was in jail, and plaintiff's father was never served
with a summons. See id. The matter was rescheduled, and
plaintiff was produced for the hearing. See id. The family
court determined that Stephen Damon would be the payee and
“when [plaintiff] stated that support had not been paid ... [he]
was told to file [his] own petition.” Id. When he asked for the
appropriate forms, he “was refused and told to get them from
the jail. When [he] requested them at the jail, [he] was told
they were not available.” Id.
On February 7, 2023, plaintiff was informed by his attorney
Peter Dumas that three charges were dismissed from the
indictment; Kelly Poupore was no longer working at the
Franklin County District Attorney's Office; and the new
District Attorney assigned to his case, Elizabeth Crawford,
“was not eager to try the case herself and offered to reduce
the plea offer.” Dkt. No. 11 at 1. Plaintiff also subsequently
received the grand jury minutes. See id. His trial was then
postponed from March 6, 2023, to May 1, 2023, because
“one witness had tested positive with COVID (which would
generally be a 5-day quarantine).” Id. at 2. Plaintiff asserts
that he has “heard nothing from St. Lawrence County DA's
Office[.]” Id.
*5 While in Franklin County jail, “[i]n the spring of 2022,”
plaintiff alleges that he complained to medical staff about
chest pains. See Compl. at 19. Plaintiff states that his “blood
pressure and sugar were monitored[ ]” and his levels were
normal but there were no follow-up visits with medical
personnel. Id. He contends that his “chest pains continued
untreated.” Id. He asserts that he had bloody stools, but
“[b]y the time [he] was seen a week later, the bleeding had
stopped.” Id. at 19-20. He also requested a new password
to commissary and to order a jigsaw puzzle. See id. at 20.
His requests were denied, and he wrote to the Department of
Corrections and Community Supervision (“DOCCS”). See id.
The Franklin County Jail informed plaintiff that he was not
to contact DOCCS. See id. Plaintiff also tried to contact the
American Civil Liberties Union, but they informed the jail
that they do not take collect calls. See id. Afterwards, the jail's
Warden spoke with plaintiff and told plaintiff to speak with
him directly for any future problems. See id. at 20-21.
In November 2022, plaintiff “began taking Buspar for anxiety
to relieve the chest pains[.]” Compl. at 21. Plaintiff alleges
that on November 14, 2022, his blood pressure was high,
and he was given medication “and almost immediately
experienced what was later defined as a brain shock. The
shock went through [his] entire body and was immediately
followed by [his] entire left side going numb and tingling for
about 30 minutes.” Id. Plaintiff put in a sick call and after
there was no follow-up from the jail, he wrote a grievance
and a letter to the Warden. See id. On November 17, 2022, he
received an electrocardiogram (“EKG”) from a nurse which
was normal. See id. He then saw a doctor on November 21,
2022. See id. Plaintiff alleges that his blood pressure was high
on November 27, 2022, “and there was no follow-up. [He]
returned to [his] bunk, lay flat on [his] back, and blacked
out.” Id. On December 3, 2022, plaintiff was given medication
that tasted different than the Buspar. See id. at 22. He began
feeling nauseous and dizzy and “was taken to the nurse after
between 30 and 45 minutes.” Id. The nurse stated that a
mix-up with medication was impossible, and plaintiff filed a
grievance. See id. at 22-23. The doctor then stated that it was
possible that the wrong medication was “administered, but it
was only one dose so it was okay.” Id. at 23.
Plaintiff alleges that he was threatened by an inmate on
November 14, 2022. See Compl. at 22. After complaining to
the jail, Sergeant Hanse read the complaint to the inmate who
threatened plaintiff and the inmate again threatened plaintiff.
See id. The inmate told plaintiff that if plaintiff “snitched
again, he would beat the brakes off” plaintiff. Id. Then, on
December 25, 2022, after three or four requests to repair a
shower, the shower stopped working and was unavailable for
four days. See Dkt. No. 7 at 2. On January 15 and 18, 2023,
plaintiff's “[r]outine semi-weekly blood pressure checks were
ignored. [He] continues to have chest pains and headaches
with increasing frequency and intensity but am allowed no
follow-up or explanation.” Id. On January 22, 2023, “the staff
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at the Franklin County Jail raided the entire jail starting with
dorms, per order of [Franklin County Sheriff] J. Cook.” Id.
Plaintiff alleges that the inmates were told to keep their hands
on the wall for forty-five minutes and when they returned to
their dorms, “most of our belonging were strewn all over the
floor. [His] bible lay open, pages down, on the floor.” Id.
2. Requests for Relief
Plaintiff seeks “immediate relief from the violations cited
in this petition and for unconstitutional actions to stop
immediately and reverse actions committed in violation of the
4th, 5th, 6th, 8th, and 14th, amendments as well as decisions
in violation of these amendments.” Compl. at 31. Specifically,
plaintiff asks the Court to “charge [the children's mother]
with disobeying child support order”; reverse the Franklin
County Family Court's September 21, ruling; “[a]ddress the
actions of Thomas Soucia in this matter with a counseling
memorandum and ninety day leave of absence”; “[a]ddress
the actions and inactions of Anson Rhodes by dismissing him
from employment with Franklin County”; terminate Tammy
Gordon's “law guardian status” and forbid her from having
contact with plaintiff's family; and to “[b]ring disciplinary
action upon”: “the nurse responsible for administering the
wrong medication”, “the Facility doctor for deliberately
neglecting medical needs”, and “all sergeants for ignoring
their own protocols and ignoring request forms[.]” Id. at
33-34. Plaintiff also asks the Court to implement a policy
requiring carbon-copies of forms and requests so documents
are not lost; and to implement a system to allow requests to be
completed on a tablet. See id. at 34. He also asks that the Court
“[e]nsure jail administrators have the ability and training to
manage tablet applications” and to “[a]llow inmates in good
standing to attend court unshackled and in clothes appropriate
for the occasion.” Id. Plaintiff asks for the law library and a
word processor to be made available. See id.
*6 Plaintiff seeks dismissal of the pending felony and
misdemeanor charges and the order of protection, and
expungement of these charges “[f]rom the record as well
as any evidence or testimony used in these proceedings.”
Compl. at 35. He also asks that Kelly Poupore to be
dismissed and for the Court to “[l]ift sovereign immunity so
that monetary damages can be recovered in the amount of
$10,000,000.” Id. Plaintiff requests that all evidence seized
by the New York State Troopers be returned, that Michael
Perry be dismissed, for the release of a “memorandum to
all Troopers that defendants are not to be denied private
conversations with their attorneys”, for an order of protection
from Perry concerning plaintiff's family and a “[s]tay away
order preventing Troopers from harassing” plaintiff and his
family, and to “[l]ift sovereign immunity so that damages can
be sought in the amount of $2,000,000.” Id. at 36.
In his original complaint, plaintiff requested only “policy
changes” against the Franklin County Jail. Dkt. No. 7 at 4; see
also Compl. at 34. In his January 2023 letter to the Court, he
added a demand for $500,000 from the Franklin County Jail.
Dkt. No. 7 at 4.
Finally, plaintiff asserts that “[a]s things have developed, code
enforcement officers in the towns of Waverly and Lisbon have
been used in an attempt to take my property from me.” Compl.
at 36. Plaintiff asks for “them to be advised by higher courts to
allow one year [f]rom the date this issue is resolved to conduct
cleaning, maint[e]nance, and repairs to the properties without
being constantly harassed. Building permits will be obtained
where necessary.” Id.
C. Analysis
1. Claims Against the State of New York
Plaintiff names the State of New York in the case caption
on the first page of his complaint but does not assert any
claims against it or state the specific relief he seeks from
the State. See Compl. at 1. Regardless, “[a]s a general
rule, state governments and their agencies may not be sued
in federal court unless they have waived their Eleventh
Amendment immunity or there has been a valid abrogation
of that immunity by Congress.” Kisembo v. N.Y.S. Office
of Children & Family Servs., 285 F. Supp. 3d 509, 519
(N.D.N.Y. 2018) (quoting Jackson v. Battaglia, 63 F. Supp.
3d 214, 219-20 (N.D.N.Y. 2014)). “This jurisdictional bar
applies regardless of the nature of the relief sought.”
Murawski v. N.Y. State Bd. of Elections, 285 F. Supp.
3d 691, 695 (S.D.N.Y. 2018) (quoting Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)).
“Importantly for present purposes, the State of New York
has not waived its sovereign immunity from § 1983 claims
in federal court.” Kisembo, 285 F. Supp. 3d at 519 (citation
omitted). “Nor has Congress validly abrogated New York's
sovereign immunity from these claims.” Id. Accordingly,
plaintiff cannot bring this action against the State of New
York, and it is recommended that any potential claims against
it be dismissed.
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2. Claims Concerning State Court Proceedings
To the extent plaintiff challenges a search and seizure of his
property, evidence not produced in discovery, the sufficiency
of the evidence supporting the indictments, his ability to speak
with counsel, and the time it has taken to proceed to trial, the
Court must abstain from addressing such matters as they all
concern ongoing state court criminal proceedings.
The Younger abstention doctrine, established by the Supreme
Court in Younger v. Harris, 401 U.S. 37, (1971), “generally
requires federal courts to abstain from taking jurisdiction over
federal constitutional claims that involve or call into question
ongoing state proceedings.” Diamond “D” Const. Corp. v.
McGowan, 282 F.3d 191, 198 (2d Cir. 2002). “This doctrine
of federal abstention rests foursquare on the notion that, in
the ordinary course, ‘a state proceeding provides an adequate
forum for the vindication of federal constitutional rights.’ ” Id.
(quoting Cullen v. Fliegner, 18 F.3d 96, 103 (2d Cir. 1994)).
“Younger abstention is required when three conditions are
met: (1) there is an ongoing state proceeding; (2) an important
state interest is implicated in that proceeding; and (3) the
state proceeding affords the federal plaintiff an adequate
opportunity for judicial review of the federal constitutional
claims.” Id. (citing Grieve v. Tamerin, 269 F.3d 149, 152 (2d
Cir. 2001)).
*7 “Despite the strong policy in favor of abstention, a federal
court may nevertheless intervene in a state proceeding upon
a showing of ‘bad faith, harassment or any other unusual
circumstance that would call for equitable relief.’ ” Diamiond
D. Const. Corp., 282 F.3d at 198 (quoting Younger, 401 U.S.
at 54). Further, “[t]he Supreme Court has noted that ‘the
extent to which the Younger doctrine applies to a federal
action seeking only monetary relief’ is an open question.”
Jones v. County of Westchester, 678 F. App'x 48, 50 (2d Cir.
2017) (summary order) (quoting Deakins v. Monaghan, 484
U.S. 193, 202 (1988)). 4 “But because Younger abstention
focuses primarily on federal courts interfering with and
disrupting ongoing state proceedings, [the Second Circuit
has] in the past held that abstaining from cases involving
efforts only to obtain money damages is inappropriate.” Id.
(citing Kirschner v. Klemons, 225 F.3d 227, 238 (2d Cir.
2000) (“[W]e hold that Younger abstention is not appropriate
with respect to [the plaintiff's] claim for money damages
under § 1983 ... because it is a claim for money damages
and not for declaratory or injunctive relief.”); Rivers v.
McLeod, 252 F.3d 99, 101-02 (2d Cir. 2001) (per curiam)
(“[A]pplication of the Younger doctrine is inappropriate
where the litigant seeks money damages for an alleged
violation of § 1983.”)).
4 All unpublished opinions cited in this Report-
Recommendation and Order, unless otherwise
noted, have been provided to plaintiff. In light
of the number of unpublished cases that have
been cited, the Court will not provide plaintiff
with copies of the Orders that adopt cited Report-
Recommendations and Orders.
The Court is required to abstain from reviewing plaintiff's
claims stemming from his Franklin and St. Lawrence
County Court criminal proceedings as he seeks injunctive
and declaratory relief including dismissal of the pending
indictments and the return of seized evidence. His
state proceedings are ongoing, the prosecutions implicate
important state interests, and the state court system provides
adequate opportunity for review through pre-trial motions,
post-conviction motions, and direct appeals. See Hansel v.
Town Ct. for the Town of Springfield, 56 F.3d 391, 393
(2d Cir. 1995) (“[I]t is axiomatic that a state's interest in
the administration of criminal justice within its borders is
an important one.”); Burke v. Reid-Cherry, No. 20-CV-1835
(PGG/GWG), 2021 WL 2092669, at *5 (S.D.N.Y. May 24,
2021) (citations omitted) (“[C]ourts in this Circuit have
repeatedly found that New York state courts afford a plaintiff
an adequate opportunity for judicial review of constitutional
claims.”), report and recommendation adopted, 2021 WL
4272350 (S.D.N.Y. Sept. 20, 2021). As all three of the
Younger conditions are met, the Court is required to abstain
from reviewing the claims stemming from plaintiff's Franklin
and St. Lawrence County Court proceedings.
Similarly, plaintiff challenges proceedings from Franklin
County Family Court. See Compl. at 23-26. Courts have
routinely extended Younger abstention to family court
proceedings. See Walker v. Rivera, No. 1:22-CV-560 (DNH/
TWD), 2022 WL 2341544, at *6 (N.D.N.Y. June 29, 2022)
(discussing extension of Younger abstention to family court
proceedings), report and recommendation adopted, 2022 WL
2805477 (N.D.N.Y. July 18, 2022). This is because “[i]t
is well-settled that a custody dispute raises important state
interests.” Walker v. O'Connor, No. 1:22-CV-581 (DNH/
TWD), 2022 WL 2341420, at *6 (N.D.N.Y. June 29, 2022)
(quoting Stumpf v. Maywalt, No. 21-CV-06248 (EAW), 2022
WL 2062613, at *3 (W.D.N.Y. June 6, 2022) (collecting
cases)), report and recommendation adopted, 2022 WL
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2805462 (N.D.N.Y. July 18, 2022). As plaintiff's family court
proceedings appear to still be ongoing, the Court should
abstain from interfering at this juncture. See O'Connor, 2022
WL 2341420, at *6 (citing Stumpf, 2022 WL 2062613, at
*3 (applying Younger abstention in an action stemming from
an ongoing child custody dispute); see also Walker v. Fam.
Ct. Judge Catherine Cholakis, No. 1:19-CV-1288 (LEK/
CFH), 2020 WL 3503158, at *4 (N.D.N.Y. June 29, 2020)
(applying Younger abstention in an action seeking declaratory
relief over a child custody dispute); Graham v. N.Y. Ctr.
for Interpersonal Dev., No. 15-CV-00459 (PKC), 2015 WL
1120120, at *3 (E.D.N.Y. Mar. 12, 2015) (applying Younger
abstention in an action seeking injunctive relief over a child
custody dispute).
*8 However, “[e]ven if the three factors for abstention are
satisfied, Younger established a clear exception that federal
abstention is not warranted if the state court proceeding is
brought in bad faith.” Dorsett-Felicelli, Inc. v. County of
Clinton, 349 F. Supp. 2d 355, 364 (N.D.N.Y. 2004) (citing
Younger, 401 U.S. at 54). “[A]bstention may be inappropriate
‘in cases of proven harassment or prosecutions undertaken
by state officials in bad faith without hope of obtaining a
valid conviction ....’ ” Diamon D. Constr. Corp., 282 F.3d at
198 (quoting Perez v. Ledesma, 401 U.S. 82, 85 (1971)). “To
establish the ‘bad faith’ exception, the federal plaintiff must
show that ‘the party bringing the state action must have no
reasonable expectation of obtaining a favorable outcome’ ...
or that the proceeding ‘[was] brought to retaliate for or to
deter constitutionally protected conduct’ or otherwise ‘for the
purpose to harass.’ ” Trump v. James, No. 1:21-CV-1352
(BKS/CFH), 2022 WL 1718951, at *12 (N.D.N.Y. May 27,
2022) (quoting Cullen, 18 F.3d at 103-04). Although plaintiff
asserts that there was insufficient evidence to indict him, and
that the prosecutors allegedly stated that they do not have
enough evidence to try him, he has not put forth facts that
suggest that the prosecutions were initiated in bad faith or
to be retaliatory or harassing. See Compl. at 11, 16. Plaintiff
acknowledges the Younger doctrine but states that “the parties
listed in the original petitioner have acted in bad faith and
created an extraordinary set of circumstances.” Dkt. No. 11 at
2. Plaintiff has not alleged facts that indicate that “the party
bringing the state action [has] no reasonable expectation of
obtaining a favorable outcome[.]” Cullen, 18 F.3d at 103.
Although he asserts that “[i]t seems awfully coincidental that
such a delay [in his trial] would occur right at the time the
defense comes forward with evidence that the allegations are
false as well as a mention of missing evidence[,]” this does
not sufficiently allege that there was “no legitimate purpose”
in the state proceeding. Diamond “D” Const. Corp., 282 F.3d
at 200. Finally, plaintiff has failed to allege that the family
court proceedings were initiated in bad faith or to harass him.
See id. at 23-26. Thus, the undersigned concludes that an
exception to Younger abstention is not warranted under these
circumstances.
Insofar as plaintiff seeks the Court's intervention into a past
Family Court decision, see Compl. at 33, “[t]he Younger
doctrine is as applicable to suits for declaratory relief as it
is to those for injunctive relief; the Supreme Court held in
a companion case to Younger that Younger's policy would
‘be frustrated as much by a declaratory judgment as it would
be by an injunction.’ ” Kirschner, 225 F.3d at 235 (quoting
Samuels v. Mackell, 401 U.S. 66, 73 (1971)). Additionally,
the Court lacks jurisdiction to review prior state court orders
under the Rooker-Feldman doctrine insofar as plaintiff lost in
the state court. See Rooker v. Fidelity Trust Co., 263 U.S. 413
(1923); District of Columbia Court of Appeals v. Feldman,
460 U.S. 462 (1983). “The Rooker-Feldman doctrine bars
federal district courts from hearing cases that in effect are
appeals from state court judgments, because the Supreme
Court is the only federal court with jurisdiction over such
cases.” Dorce v. City of New York, 2 F.4th 82, 101 (2d
Cir. 2021). “The [ ] doctrine applies where the federal court
plaintiff: (1) lost in state court, (2) complains of injuries
caused by the state court judgment, (3) invites the district
court to review and reject the state court judgment, and (4)
commenced the district court proceedings after the state court
judgment was rendered.” O'Connor, 2022 WL 2341420, at
*6 (citation omitted). Plaintiff asks the court to “[r]everse
September 21 [Franklin County Family Court] ruling and
dismiss with prejudice[.]” Compl. at 33. Such relief is barred
by the Rooker-Feldman doctrine. See O'Connor, 2022 WL
2341420, at *6 (citing Phifer v. City of New York, 289 F.3d
49, 57 (2d Cir. 2002)) (“There is no question that Rooker-
Feldman bars [ ] challenges to the family court's decisions
regarding custody, neglect, and visitation.”); Fernandez v.
Turetsky, No. 12-CV-4092 (SLT/MDG), 2014 WL 5823116,
at *4 (E.D.N.Y. Nov. 7, 2014) (collecting cases) (“Courts have
repeatedly invoked the [Rooker-Feldman] doctrine in cases,
like the one currently before the Court, in which plaintiffs
challenge family court decrees setting child support arrears.”),
aff'd, 645 F. App'x 103 (2d Cir. 2016) (summary order).
Finally, in addition to the Younger and Rooker-Feldman
doctrines, the Franklin County “Child Support Court” or
Family Court is immune from suit. The Second Circuit
has held that “the New York State Unified Court System
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is unquestionably an ‘arm of the State’ and is entitled
to Eleventh Amendment sovereign immunity.” Gollomp v.
Spitzer, 568 F.3d 355, 368 (2d Cir. 2009) (internal citation
omitted). The Franklin County Family Court is “a part of
the New York State Unified Court system and is, therefore,
also protected by the State's sovereign immunity for suit
in federal court.” McKnight v. Middleton, 699 F. Supp. 2d
507, 521 (E.D.N.Y. 2010); see also Davis v. Westchester
Cnty. Fam. Ct., No. 16-CV-9487 (KMK), 2017 WL 4311039,
at *6 (S.D.N.Y. Sept. 26, 2017). Thus, it is recommended
that claims against the Franklin County Family Court be
dismissed. 5
5 Plaintiff challenges his being forced to wear jail
garb to various pre-trial hearings. See Compl. at
25, 34. In Estelle, the Supreme Court of the United
States held that “the State cannot, consistently with
the Fourteenth Amendment, compel an accused to
stand trial before a jury while dressed in identifiable
prison clothes[.]” Estelle v. Williams, 425 U.S. 501,
512 (1976). However, research has not revealed a
case that states that an inmate cannot be required
to wear prison garb to pre-trial hearings outside the
presence of a jury. Thus, plaintiff has not alleged a
plausible constitutional claim for relief.
3. Claims Against Prosecutors, District
Attorney's Offices, and Legal Guardian
*9 In addition to the Court being barred from reviewing
plaintiff's claims under the Younger and Rooker-Feldman
doctrines, numerous individual defendants are immune
from suit. Plaintiff seeks to bring claims against Assistant
District Attorney Kelly Poupore, 6 the Franklin County
and St. Lawrence County District Attorney's Offices, and
law guardian Tammy Gordon. See Compl. at 5-6. Plaintiff
seeks monetary damages and asks the Court to dismiss
pending charges against him, terminate Tammy Gordon as
the children's law guardian, “expunge all evidence from the
record”, and prosecute his children's mother. Compl. at 35.
6 In his March 13, 2023, letter to the Court, plaintiff
asserts that Kelly Poupore is no longer employed
with the Franklin County District Attorney's
Office. See Dkt. No. 11 at 1. However, he does not
state that he no longer wishes to bring the action
against her. See id. As such, the undersigned will
proceed to analyze the purported claims against her.
To the extent plaintiff seeks monetary damages, “[t]he
doctrine of absolute immunity applies broadly to shield
a prosecutor from liability for money damages (but not
injunctive relief) in a § 1983 lawsuit, even when the result
may be that a wronged plaintiff is left without an immediate
remedy.” Anilao v. Spota, 27 F.4th 855, 863 (2d Cir.
2022), pet. for cert. filed (Dec. 13, 2022). “[P]rosecutors
enjoy ‘absolute immunity from § 1983 liability for those
prosecutorial activities intimately associated with the judicial
phase of the criminal process.’ ” Id. at 864 (quoting Barr
v. Abrams, 810 F.2d 358, 361 (2d Cir. 1987)). “[A]bsolute
immunity extends even to a prosecutor who ‘conspir[es]
to present false evidence at a criminal trial ... because the
immunity attaches to his function, not to the manner in which
he performed it.’ ” Id. (quoting Dory v. Ryan, 25 F.3d 81,
83 (2d Cir. 1994)). “A narrow limitation to the scope of
absolute immunity in § 1983 actions [ ] exists where the defect
is jurisdictional — that is, where the prosecutor acted well
outside the scope of authority, rather than where the defect
relates ... to the prosecutor's motivation or the reasonableness
of his official action.” Id.
Plaintiff challenges Kelly Poupore's actions in relation to her
prosecution of plaintiff for criminal charges such as speaking
with the victim, opposing bail, plea bargaining, seeking
extensions of time for hearings and trial, and presenting
evidence to a grand jury. See Compl. at 11-12, 28-29. This is
precisely the function of prosecutors that absolutely immunity
protects. See Anilao, 27 F.4th at 864 (“[A] prosecutor enjoys
absolute immunity when determining which offenses to
charge, initiating a prosecution, presenting a case to a grand
jury, and preparing for trial.”). Thus, the claims against Kelly
Poupore are barred by absolute prosecutorial immunity.
As to the two District Attorney's offices, Franklin County and
St. Lawrence County, “the Eleventh Amendment prohibits
individuals from suing the District Attorney's Office, an arm
of the state, for damages under 42 U.S.C. § 1983 arising
from prosecutorial decisions.” Quiles v. City of New York,
No. 01-CV-10934 (LTS/THK), 2002 WL 31886117, at *2
(S.D.N.Y. Dec. 27, 2002) (citing Pennhurst State School &
Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (explaining
that in absence of consent, suit against a state or one of its
agencies is proscribed by the Eleventh Amendment)). This
is because “[w]hen prosecuting a criminal matter, a district
attorney in New York State, acting in a quasi-judicial capacity,
represents the State not the county.” Ying Jing Gan v. City
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of New York, 996 F.2d 522, 536 (2d Cir. 1993) (citation
omitted). Accordingly, plaintiff's claims against the Franklin
County and St. Lawrence County District Attorney's Offices
for damages are barred. See id.; see also Pierre v. People
of the State of New York, No. 15-CV-3577(JS/ARL), 2016
WL 324978, at *3 (E.D.N.Y. Jan. 26, 2016) (“[The p]laintiff
seeks to hold the Nassau County District Attorney's Office
liable for bringing a criminal case against her. The Eleventh
Amendment therefore bars [the p]laintiff's claims against
the Nassau County District Attorney's Office.”); Lefevre v.
Cnty. of Albany, No. 1:14-CV-155 (GLS/RFT), 2015 WL
1626005, at *3 (N.D.N.Y. Apr. 13, 2015) (“[T]he court is
satisfied that the District Attorney's Office is immune from
liability here, as [the] claims appear to stem only from the
decision to prosecute him, and there are no allegations that
any employees of the office were acting in anything other than
a prosecutorial capacity.”).
*10 As to the law guardian, Tammy Gordon, “[a] plaintiff
pressing a claim of [a] violation of his constitutional rights
under § 1983 is thus required to show state action.” Meadows
v. United Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020)
(per curiam) (citation omitted). “[A]lthough appointed by
the state, an attorney for [a] children or law guardian is not
a state actor because he or she must exercise independent
professional judgment on behalf of the clients they represent.”
Parent v. New York, 786 F. Supp. 2d 516, 538 (N.D.N.Y.
2011), aff'd, 485 F. App'x 500 (2d Cir. 2012) (summary
order); see DeRouseau v. Fam. Ct., Westchester Cnty., No.
21-CV-8716 (LTS), 2022 WL 1747859, at *3 (S.D.N.Y.
May 31, 2022) (citing Parent, 786 F. Supp. 2d at 538, in
support of dismissing claims against legal guardian); Curcio
v. Grossman, No. 21-CV-4452 (LTS), 2021 WL 2453547,
at *3 (S.D.N.Y. June 15, 2021) (same); cf. Polk County v.
Dodson, 454 U.S. 312, 318 (1981) (explaining that “a lawyer
representing a client is not, by virtue of being an officer of
the court, a state actor ‘under color of state law’ within the
meaning of § 1983.”).
Some courts have dismissed claims against a law guardian
solely because a law guardian is not a state actor, while others
have dismissed such claims under a theory of quasi-judicial
immunity. “Absolute immunity may attach to a non-judicial
officer where that individual serves as an arm of the court, or
acts as an integral part[ ] of the judicial process.” Miller Ex v.
Primo, No. 5:22-CV-0680 (BKS/ML), 2022 WL 16556060,
at *5 (N.D.N.Y. Sept. 29, 2022) (quotation marks omitted)
(citations omitted), report and recommendation adopted,
2022 WL 16551700 (N.D.N.Y. Oct. 31, 2022). “In New
York, courts have regularly found that attorneys for children
in custody proceedings (called ‘law guardians’ until 2010,
N.Y. Fam. Ct. Act § 242) enjoy quasi-judicial immunity.”
Id. (citation omitted); see also Phillips v. Wagner, No. 1:22-
CV-0833 (DNH/ML), 2022 WL 17406092, at *4-5 (N.D.N.Y.
Nov. 4, 2022) (dismissing claims on quasi-judicial immunity
grounds), report and recommendation adopted, 2022 WL
17403441 (N.D.N.Y. Dec. 2, 2022); Kramer v. Dane, No. 17-
CV-5253 (JFB/SIL), 2018 WL 5077164, at *7-8 (E.D.N.Y.
July 26, 2018) (same), report and recommendation adopted,
2018 WL 4489284 (E.D.N.Y. Sept. 19, 2018).
As law guardians are not state actors and are entitled to quasi-
judicial immunity, plaintiff cannot state a claim against law
guardian, Tammy Gordon. Thus, it is recommended that the
claims against her be dismissed.
4. Claims Against Public Defenders
and Conflict Defender's Office
“State action is an essential element of any section 1983
claim.” Bonilla v. Connerton, No. 3:15-CV-1276 (LEK/
DEP), 2016 WL 2765287, at *4 (N.D.N.Y. Apr. 14, 2016)
(citations omitted) report and recommendation adopted, 2016
WL 2760373 (N.D.N.Y. May 12, 2016); see also Meadows,
963 F.3d at 243. “To survive scrutiny under section 1915(e)
where a plaintiff has asserted a section 1983 claim, the
complaint must allege facts that plausibly suggest state action
on the part of the named defendants.” Id. (citing DeMatteis v.
Eastman Kodak Co., 511 F.2d 306, 311 (2d Cir. 1975)). “[I]t
is well-established that court-appointed attorneys performing
a lawyer's traditional functions as counsel to defendant do not
act ‘under color of state law’ and therefore are not subject
to suit under 42 U.S.C. § 1983.” Rodriguez v. Weprin, 116
F.3d 62, 65-66 (2d Cir. 1997); see also Bonilla, 2016 WL
2765287, at *4 (“While it is unclear whether [the] defendant
[ ] was retained or assigned by the court to represent [the]
plaintiff, even assuming the latter, the assignment of an
attorney to represent a plaintiff does not rise to a level
of state action sufficient to support a claim under section
1983.”); Moore v. Reittinger, No. 6:22-CV-1083 (LEK/ATB),
2022 WL 19003387, at *2 (N.D.N.Y. Nov. 8, 2022) (“[The]
plaintiff's Section 1983 claims against his former attorney fail
as a matter of law, and these claims are dismissed.”), report
and recommendation adopted as modified, 2023 WL 1500801
(N.D.N.Y. Feb. 3, 2023).
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*11 The Franklin County Conflict Defender's Office
receives assignments for representation when individuals
have cases pending in Franklin County and they cannot be
assigned to the Franklin County Public Defender's Office
because of a conflict of interest. 7 Plaintiff alleges that he
was represented by public defender Thomas Soucia and
conflict defender Anson Rhodes. See Compl. at 24. As
assigned or retained counsel, the attorneys were not acting
under the color of state law, and plaintiff cannot state an
ineffective assistance of counsel claim against them under
Section 1983; thus, it is recommended that those claims
be dismissed. See Strong v. New York, No. 1:19-CV-63
(MAD/CFH), 2019 WL 1763010, at *7 (N.D.N.Y. Apr. 22,
2019) (citations omitted) (“ ‘Private attorneys, whether court
appointed or privately retained, are generally not liable under
§ 1983.’ ... Because [the public defender] was performing
his ‘traditional functions as counsel to defendant’ during
the alleged violation, he cannot be held liable pursuant to
§ 1983.”), report and recommendation adopted, 2019 WL
2723372 (N.D.N.Y. July 1, 2019).
7 Franklin County Public Defender, https://
www.franklincountyny.gov/departments/
public_safety/public_defender/index.php (last
visited Mar. 17, 2023).
Insofar as plaintiff seeks to sue the Franklin County Conflict
Defender's Office and Public Defender's Office, plaintiff has
not stated any facts concerning either Office or set forth
allegations “to support the inference” that any constitutional
violations “resulted from an official custom or policy.” Green
v. Dep't of Educ. of City of New York, 16 F.4th 1070, 1077 (2d
Cir. 2021) (per curiam). “A municipality or municipal entity
cannot be held liable under Section 1983 on a respondeat
superior theory.” Bliven v. Hunt, 478 F. Supp. 2d 332, 336
(E.D.N.Y. 2007) (citing Monell v. Department of Soc. Servs.
of City of New York, 436 U.S. 658, 691 (1978)). Rather,
Monell “extends liability to a municipal organization where
that organization's [policy, practice, or custom] led to an
independent constitutional violation.” Benacquista v. Spratt,
217 F. Supp. 3d 588, 599 (N.D.N.Y. 2016) (quoting Segal
v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006)).
As plaintiff has not set forth any allegations concerning a
policy or custom, he has not sufficiently alleged a claim
against the Franklin County Conflict Defender's Office or
Public Defender's Office. Thus, it is recommended that any
purported claims be dismissed.
5. Claims Concerning Plaintiff's
Confinement in Franklin County Jail
a. Medical Deliberate Indifference Claims
As plaintiff was a pretrial detainee at the time of the
alleged conduct, his claims arise under the Fourteenth
Amendment. See Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir.
2017). “A pretrial detainee may establish a § 1983 claim
for allegedly unconstitutional conditions of confinement by
showing that the officers acted with deliberate indifference
to the challenged conditions.” Id. (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)). To state
a claim for deliberate indifference, a pretrial detainee must
allege an objective and subjective prong “showing that the
challenged conditions were sufficiently serious to constitute
objective deprivations of the right to due process, and ... that
the officer acted with at least deliberate indifference to the
challenged conditions.” Id.
“[A]n injury is ‘sufficiently serious’ when it involves ‘the
existence of an injury that a reasonable doctor would find
important and worthy of comment or treatment; the presence
of a medical condition that significantly affects an individual's
daily activities; or the existence of chronic and substantial
pain.’ ” Trapani v. Dagostino, No. 9:18-CV-0805 (DNH/
CFH), 2019 WL 5149795, at *4 (N.D.N.Y. June 10, 2019)
(quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d.
Cir. 1998)). Put another way, the objective prong can be
analyzed by asking (1) “whether the plaintiff was actually
deprived of adequate medical care[ ]” and (2) “whether the
purported inadequacy in the medical care is ‘sufficiently
serious.’ ” Vernsey v. Touron, et al., No. 9:20-CV-992 (DNH/
ATB), 2023 WL 2346366, at *3 (N.D.N.Y. Feb. 8, 2023)
(quoting Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d
Cir. 2006)), report and recommendation adopted, 2023 WL
2346281 (N.D.N.Y. Mar. 3, 2023). To determine whether the
inadequacy of medical care was “sufficiently serious” “[t]he
court must examine how the care was inadequate and what
harm the inadequacy caused or will likely cause the plaintiff.”
Id. (citations omitted).
*12 As to the subjective element, “[u]ntil very recently,
the second, or mens rea, prong—the defendant's ‘sufficiently
culpable state of mind’—was assessed subjectively in
claims brought under both the Eighth and the Fourteenth
Amendments.” Trapani, 2019 WL 5149795, at *4 (quoting
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Davis v. McCready, 283 F. Supp. 3d 108, 116 (S.D.N.Y.
2017)). “However, in light of the Supreme Court's ruling in
Kingsley v. Hendrickson, [576 U.S. 389] (2015), ‘the mens rea
prong of a deliberate indifference claim brought by a pretrial
detainee is now to be assessed objectively.’ ” Id. (citation
omitted). To determine the subjective prong, courts look to
“whether the official knew, or should have known that his
or her conduct posed an excessive risk to health or safety.”
Id. (quotation marks omitted) (quoting Lloyd v. City of New
York, 246 F. Supp. 3d 704, 719 (S.D.N.Y. 2017)).
“Non-medical personnel engage in deliberate indifference
where they ‘intentionally delayed access to medical care
when the inmate was in extreme pain and has made his
medical problem known to attendant prison personnel.’ ”
Baumann v. Walsh, 36 F. Supp. 2d 508, 512 (N.D.N.Y. 1999)
(citation omitted). “At a minimum, there must be at least
some allegations of a conscious or callous indifference to
a[n individual's] rights.” Dumel v. Westchester County, No.
19-CV-2161 (KMK), 2021 WL 738365, at *10 (S.D.N.Y.
Feb. 25, 2021) (citation omitted). “The serious medical needs
standard contemplates a condition of urgency such as one that
may produce death, degeneration, or extreme pain.” Charles
v. Orange County, 925 F.3d 73, 86 (2d Cir. 2019).
Plaintiff alleges that “the nurse” at Franklin County jail
administered the wrong medication to him, “the doctor”
neglected his medical needs, and the officers ignored his
requests for medical attention. Compl. at 34; 19-23. He
contends that his blood pressure and sugar were monitored”
and when his levels were “normal [ ] there was no follow-up.”
Id. at 19. He also asserts that after he complained that he had
bloody stools, he was seen a week later, but by the time he was
seen by medical personnel the issue had stopped. See id. at
19-20. Then, he alleges that when his blood pressure was high,
he “was immediately given a pill for blood pressure[.]” Id. at
21. He alleges that the medication made his body “numb and
tingling for about 30 minutes.” Id. When he was seen three
days later, he received an EKG, and the results were normal.
See id. Plaintiff was given a medication to “alleviate the chest
pains[.]”. Id. Plaintiff alleges that on one occasion he was
given a medication that tasted differently than the Buspar and
that caused him chest and head pain, dizziness, and nausea.
See id. at 22. He was taken to the nurse within thirty to forty-
five minutes. See id. Plaintiff alleges that he “also filed a
grievance over the stroke symptoms going unaddressed for a
week.” Id. at 23.
It appears the plaintiff has likely sufficiently plead a serious
medical condition. He alleges that he had consistently
high blood pressure, chest pains, anxiety, dizzy spells,
nausea, and black outs. See Compl. at 19-23; see also
Amberslie v. Prisoner Transp. Serv. of Am., LLC, No. 9:17-
CV-0564 (TJM/DEP), 2019 WL 1024183, at *13 (N.D.N.Y.
Mar. 4, 2019) (“At this juncture, I am unable—given the
paucity of factual allegations in his amended complaint—
to determine whether plaintiff's medical condition constitutes
a “sufficiently serious” condition.”) (citing Araujo v. City
of New York, No. 08-CV-3715, 2010 WL 1049583, at *7
(E.D.N.Y. Mar. 19, 2010) (stating that “[a]lthough the Second
Circuit has articulated factors that are relevant to whether
a medical condition is ‘sufficiently serious,’ ... the [c]ourt
cannot make a conclusive determination on that issue in this
case at the motion to dismiss stage, based upon the allegations
in the complaint” where the plaintiff alleged he needed
various medications for his diabetes, high blood pressure, and
post-traumatic stress disorder)), report and recommendation
adopted, 2019 WL 1368860 (N.D.N.Y. Mar. 26, 2019).
*13 However, even assuming he has satisfied the objective
prong, plaintiff has not sufficiently alleged the subjective
prong of a medical indifference claim. Plaintiff has not alleged
any facts to indicate that the nurse, doctor, or guards acted
intentionally or with reckless disregard for plaintiff's health.
Rather, he alleges that he received blood pressure checks,
medication to help his chest pain and anxiety, and after he
believed he was given the wrong medication, he was seen
by medical personnel within thirty to forty-five minutes.
See Compl. at 19-23; cf. Martinez v. United States, No. 20-
CV-7275 (VEC), 2021 WL 4224955, at *10 (S.D.N.Y. Sept.
16, 2021) (emphasis added) (denying motion to dismiss where
the doctor defendant “was aware of [the p]laintiff's repeated
complaints of hematuria and accompanying pain over the
course of many months and was aware that [the p]laintiff
had not yet seen a urologist despite [the doctor's] repeated
referrals[.]”); Baptiste v. New York State Dep't of Corr. &
Cmty. Supervision, No. 9:22-CV-1326 (BKS/TWD), 2023
WL 2185989, at *2 (N.D.N.Y. Feb. 23, 2023) (determining
that the plaintiff sufficiently alleged an Eighth Amendment
medical indifference claim where he did not have a follow up
appointment for two months and received no diagnoses for
four years).
“It is well-established that mere disagreement over the proper
treatment does not create a constitutional claim. So long
as the treatment given is adequate, the fact that a [pre-trial
detainee] might prefer a different treatment does not give rise
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to a [Fourteenth] Amendment violation.” Chance, 143 F.3d
at 703; see also Barnes v. Correct Care Sols., LLC, No. 18-
CV-12288 (VB), 2020 WL 3498265, at *4 (S.D.N.Y. June
29, 2020) (applying the standard in Fourteenth Amendment
context); Swinton v. Livingston County, No. 21-1434, 2023
WL 2317838, at *2 (2d Cir. Mar. 2, 2023) (summary order)
(reiterating the relevant standard in the context of a Fourteenth
Amendment claim). Additionally, “mere negligence is not
actionable, nor is mere medical malpractice ... tantamount
to deliberate indifference.” Vail v. City of New York, 68 F.
Supp. 3d 412, 424 (S.D.N.Y. 2014) (citation omitted); see
Charles v. Orange County, 925 F.3d 73, 87 (2d Cir. 2019)
(citations omitted) (“A plaintiff must show ‘something more
than mere negligence’ to establish deliberate indifference in
the Fourteenth Amendment context. Thus, ‘mere medical
malpractice is not tantamount to deliberate indifference, but
it may rise to the level of deliberate indifference 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.’ ”).
“Cases have consistently held that the mistaken/negligent
administration of incorrect medication is insufficient to
support a claim of deliberate indifference under the Eighth
Amendment.” Revels v. Corr. Med. Care, Inc., No. 17-
CV-88 (MAD/TWD), 2022 WL 1224407, at *9 (N.D.N.Y.
Apr. 26, 2022) (collecting cases); see also Vail, 68 F. Supp.
3d at 425 (collecting cases) (citations omitted) (dismissing
claim where the “[p]laintiff alleges that the [ ] Defendants
both thought that [the nurse] had given [the p]laintiff the
correct medication. Even if, as [the p]laintiff suggests, the
[ ] Defendants should have known that without checking
identification, their conduct posed a great risk to [the
p]laintiff, a ‘belief that ... conduct poses no risk of serious
harm (or an insubstantial risk of serious harm) need not be
sound so long as it is sincere.’ ”); Long v. Lafko, 254 F.
Supp. 2d 444, 447 (S.D.N.Y. 2003) (dismissing deliberate
indifference claim based on medication error where [the]
defendant's conduct was “merely negligent or unprofessional
in failing to check the medication before administering
it”). In the context of the Fourteenth Amendment, courts
have dismissed medical indifference claims for failing to
provide medication because the alleged conduct was “merely
negligent[.]” Dumel, 2021 WL 738365, at *9-10 (citation
omitted) (“Even when construed liberally, the Amended
Complaint suggests, at most, that Medical Defendants were
‘merely negligent[ ]’ in failing to ensure that [the p]laintiff
received his medication. This does not appear to be a
case where, for example, a defendant intentionally deprives
a plaintiff of medication.”) (citing, inter alia, Amberslie,
2019 WL 1024183, at *13 (dismissing deliberate-indifference
claim based on the mens rea prong where the “plaintiff's
allegations tend[ed] to show little more than an inadvertent
failure to provide him with [his medication]”)).
*14 Plaintiff has failed to allege any conduct that is
more than potentially negligent. He does not allege that
anyone acted intentionally to impose a harmful condition to
his health or that the guards, doctor, or nurse acted with
reckless disregard to a substantial risk to plaintiff's health
and safety. Rather, plaintiff alleges that the doctor and nurses
conducted an EKG, put him on medication, provided follow-
up appointments to check his blood pressure, and saw him
within thirty to forty-five minutes of a reaction to allegedly
the wrong medication. See Compl. at 19-23. Two missed
follow-up appointments only three days apart is not enough
to establish a deliberate indifference claim. See Dkt. No. 7
at 2; see also Hamm v. Hatcher, No. 05-CV-503 (ER), 2013
WL 71770, at *9-10 (S.D.N.Y. Jan. 7, 2013) (collecting cases
discussing delays in medical treatment ranging from several
days to one year) (“The relevant case law makes clear that
a greater showing of harm is required in order to meet the
high standard of a constitutional violation within the context
of a delay in treatment.”). Further, plaintiff's disagreement
with the nurse's and doctor's treatment methods and the
possibility of a medication mix-up are insufficient to satisfy
the subjective prong of a medical indifference claim; thus, it is
recommended that the claims be dismissed for failure to state
a claim. See Revels, 2022 WL 1224407, at *9; Dumel, 2021
WL 738365, at *9.
b. Non-Medical Deliberate Indifference
Plaintiff alleges that he was threatened by another inmate.
See Compl. at 22. “The Due Process Clause of the Fourteenth
Amendment protects pre-trial detainees ... against intolerable
prison conditions.” Dzwonczyk v. Syracuse City Police Dep't,
710 F. Supp. 2d 248, 267 (N.D.N.Y. 2008) (citation omitted).
“The failure to protect a pre-trial detainee from harm is one
type of intolerable prison condition. Thus, a prison official's
deliberate indifference to a substantial risk of serious harm
to an inmate may form the basis of a deliberate indifference
claim.” Id. “[W]hen a pretrial detainee plaintiff brings §
1983 claims alleging deliberate indifference, including claims
alleging failure to protect or intervene, the plaintiff must
satisfy [the] two-prong” objective and subjective test. Barnes
v. Harling, 368 F. Supp. 3d 573, 596 (W.D.N.Y. 2019)
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(quoting Hayes v. N. Y. C. Dep't of Corr., 84 F.3d 614, 620
(2d Cir. 1996)).
“[W]hen a prisoner is subjected to specific threats from
another inmate, and there are indication[s] that the threat
will be carried out, the failure of prison officials to act
may give rise to a deliberate indifference claim.” Hartry v.
Cnty. of Suffolk, 755 F. Supp. 2d 422, 436 (E.D.N.Y. 2010)
(quotation marks and citation omitted). “[T]he objective
prong can be satisfied even where no serious physical injury
results.” Randle v. Alexander, 960 F. Supp. 2d 457, 473-74
(S.D.N.Y. 2013) (citing Heisler v. Kralik, 981 F. Supp. 830,
836 (S.D.N.Y. 1997), aff'd sub nom. Heisler v. Rockland
County, 164 F.3d 618 (2d Cir. 1998)). “At bottom, ‘[i]n
assessing whether the risk of an inmate's violence against
other inmates is ‘sufficiently serious,’ to trigger constitutional
protection, the focus of inquiry must be, not the extent of
the physical injuries sustained in an attack, but rather the
existence of a ‘substantial risk of serious harm.” Id. at 474
(quotation marks omitted) (quoting Heisler, 981 F. Supp. at
836); accord Mazyck v. Keller, 531 F. Supp. 3d 630, 642
(W.D.N.Y. 2021).
Research has not revealed a case in which a court has
concluded that a failure to protect claim can proceed past
initial review, or can survive a dispositive motion, where
there was no physical violence whatsoever. To be sure, courts
have noted that “a plaintiff may satisfy the subjective prong
by alleging that the defendants were aware of ... specific
threats made against the plaintiff by the assailant,” Shehan v.
Barrone, No. 3:22-CV-879 (OAW), 2023 WL 122039, at *4
(D. Conn. Jan. 6, 2023), and relied on a plaintiff's allegations
“that he informed [the] defendant [officer] of a substantial risk
of serious harm that existed due to the threat from [another
inmate] and his associates, but that [the] defendant [officer]
failed to take any action to protect him.” Mazyck, 531 F.
Supp. 3d at 642. However, in those cases, there was always
some act of violence following the threats and the threats
that occurred before the violence were specific—calling the
plaintiff a snitch and telling him to leave the cell block “or
else” after the guards openly informed other inmates that the
plaintiff was complaining about them; and where the plaintiff
informed the guards of an ongoing feud between himself and
a fellow inmate who he had cooperated with the government
against. Shehan, 2023 WL 122039, at *1; Mazyck, 531 F.
Supp. 3d at 636.
*15 Here, plaintiff's allegation that another inmate
“threatened to assault” him, without more, is insufficient
to plausibly allege that the conditions were “sufficiently
serious” or that there was a “substantial risk of serious harm.”
See Garcia v. Rodriguez, No. 05-CV-5915 (JSR), 2007 WL
2456631, at *2 (S.D.N.Y. Aug. 24, 2007) (“[T]he Court
cannot agree ... that [the] isolated statement that [the plaintiff]
would ‘get hurt,’ which was unaccompanied by any other
words or actions or prior history between [the two inmates],
was sufficient to put [the defendant], or any reasonable officer
in his position, on notice that [the plaintiff] faced a substantial
risk of serious harm or that it was anything more than an idle
threat.”); see also Livingston v. Hoffnagle, No. 9:19-CV-0353
(GLS/CFH), 2019 WL 7500501, at *7 (N.D.N.Y. Nov. 8,
2019) (“[G]iven the absence of allegations of actual physical
injury, plaintiff has failed to satisfy the objective element
of the test.”) (citing, inter alia, Johnson v. Lynn-Caron, No.
9:11-CV-386 (GLS/CFH), 2013 WL 5465594, *5 (N.D.N.Y.
Sept. 30, 2013) (dismissing the plaintiff's failure to protect
claim where the plaintiff did not demonstrate actual physical
harm)), report and recommendation adopted, 2020 WL 95431
(N.D.N.Y. Jan. 8, 2020).
Although plaintiff alleges that he complained to an officer, the
officer informed the threatening inmate about the complaint,
and the inmate threatened plaintiff again, this is insufficient
to establish a “serious” risk of harm to plaintiff and a
reckless disregard of that harm. It is, therefore, recommended
that plaintiff's failure to protect claim be dismissed. See
Maldonado v. John, No. 21-CV-3719 (LTS), 2021 WL
3292575, at *6-7 (S.D.N.Y. Aug. 2, 2021) (dismissing claims
but allowing amendment where the plaintiff alleged he was
assaulted, protective measures were put in place, when he was
taken off protective measures, inmates threatened him and
officers told inmates he was a snitch, and his cell was burned,
property destroyed, and he was attacked but a mentally ill
patient; but the court concluded that the inmates “threats
coupled with corrections officers labeling him a snitch, may
state a constitutional claim if these actions exposed [the
p]laintiff to harm from other inmates, such as the attack on
[the p]laintiff. But [the p]laintiff fails to allege sufficient
facts to suggest that Medford was deliberately indifferent to
a substantial risk of harm to him or that [the inmates] or
other corrections officers’ actions caused the other inmates
to burn his cell, take his property, and attack him.”); see also
Best v. City of New York, No. 11-CV-4475 (JMF), 2012 WL
5458054, at *7 (S.D.N.Y. Nov. 8, 2012) (“[The plaintiff] has
failed to plead facts capable of establishing that his injury
was ‘sufficiently serious.’ Although he repeatedly alleges that
he feared his life was in danger because he was not held in
protective custody, he has not alleged that he was attacked
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or injured as a result of being denied protective custody
status, or even that other inmates or correctional officers made
significant threats against him.”). 8
8 The undersigned also notes that plaintiff did not
name the officer who allegedly failed to protect
him, Sergeant Hanse, as a defendant in this
complaint. See Compl. at 1-2, 22. It also appears
based on the face of the complaint that plaintiff's
failure to protect claims might be unexhausted.
“The Prison Litigation Reform Act of 1995
(“PLRA”) requires that prisoners who bring suit
in federal court must first exhaust their available
administrative remedies: ‘No action shall be
brought with respect to prison conditions under §
1983 ... by a prisoner confined in any jail, prison, or
other correctional facility until such administrative
remedies as are available are exhausted.’ ” Smith
v. Kelly, 985 F. Supp. 2d 275, 280 (N.D.N.Y.
2013) (quoting 42 U.S.C. § 1997e(a)). “This
requirement applies to pretrial detainees as well as
to sentenced prisoners.” Id. (citing United States v.
Al-Marri, 239 F. Supp. 2d 366, 367 n.1 (S.D.N.Y.
2002)). However, because the undersigned is
recommending dismissal of plaintiff's complaint on
other grounds, the undersigned will not analyze
whether plaintiff exhausted his claim at this
juncture.
*16 Next, plaintiff contends that he was forced to stand at
a wall for forty-five minutes. See Dkt. No. 7 at 2. “Because
as a pre-trial detainee [the plaintiff] was not being ‘punished,’
the ‘cruel and unusual punishment’ proscription of the Eighth
Amendment does not apply.” Cuoco v. Moritsugu, 222 F.3d
99, 106 (2d Cir. 2000). Rather, “[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
Eight[h] Amendment.” Darnell, 849 F.3d at 29 (discussing
two prong objective and subjective test to conditions of
confinement claims).
Plaintiff has not alleged that being forced to stand at a wall
for forty-five minutes posed an unreasonable risk of serious
damage to his health or otherwise imposed a “sufficiently
serious condition.” See Dkt. No. 7 at 2. He has also not
alleged that the officers ignored a serious risk imposed by that
condition. Thus, he has failed to allege either the objective
or subjective prong of a deliberate indifference claim. See,
e.g., Vargas v. Renzi, No. 21-CV-06165 (DGL), 2021 WL
1022849, at *9 (W.D.N.Y. Mar. 15, 2021) (citing Herbert v.
Smith, No. 20-CV-6348 (PMH), 2020 WL 5898977, at *3
(S.D.N.Y. Oct. 5, 2020) (dismissing Fourteenth Amendment
claim because the “[p]laintiff does not allege specific facts
showing that these conditions put his health or safety at risk
and that prison officials acted with deliberate indifference.”))
(“While [the p]laintiff suggests a few different ways in which
he may have contracted the virus, his allegations neither
set forth that the conditions he alleges posed an excessive
risk to his health or safety, nor that [defendant] officials or
employees knew or should have known that the conditions
alleged posed a significant risk of serious illness or death.”),
appeal dismissed (Jan. 14, 2022).
Similarly, to the extent plaintiff alleges that the jail's shower
broke, he was left covered in soap, and he was unable
to shower for four days, he has not asserted that these
conditions resulted in any harm to his health, let alone
an unreasonable risk of serious damage to his health or a
“sufficiently serious condition.” See Dkt. No. 7 at 2; see also
Thorpe v. Vill. of Greenwich, No. 5:13-CV-0902 (GTS/ATB),
2014 WL 788816, at *10 (N.D.N.Y. Feb. 25, 2014) (citations
omitted) (“Deprivation of showers only rises to the level of a
constitutional violation when the denial deprives the plaintiff
of his ‘basis human needs.’ Courts are reluctant to consider
even a temporary deprivation of showers a constitutional
violation.”); Anduze v. City of New York, No. 21-CV-519
(PGG/KHP), 2022 WL 4586967, at *10 (S.D.N.Y. Aug.
8, 2022) (citations omitted) (“[The p]laintiff fails to assert
how denials of a shower or razor on occasion posed an
objective risk of serious harm to him. Thus, [the p]laintiff's
allegations ... concerning denial of showers and razors are
insufficient to state a claim that his Constitutional rights
were violated.”), report and recommendation adopted, 2022
WL 4547420 (S.D.N.Y. Sept. 29, 2022). As plaintiff has not
alleged with respect to any of these conditions that J. Cook or
any other officer intentionally or recklessly ignored a serious
risk to plaintiff's health that was posed by the conditions,
he has failed to allege a deliberate indifference claim. It
is recommended that those claims against J. Cook and the
Franklin County jail be dismissed.
c. Tablet and Law Library Access
Plaintiff asks that the Court “[m]ake law library and word
processor for inmates to work on their legal matters become
available again as it sits unused”; to “[i]mplement a system in
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the tablet for submitting requests, complaints, grievances, and
sick call requests and monitor it daily”; and to “[e]nsure jail
administrators have the ability and training to manage tablet
applications[.]” Compl. at 34. Plaintiff alleges that when he
wanted to file a family court petition, he asked the court “for
the forms, [and he] was refused and told to get them from the
jail. When [he] requested them at the jail, [he] was told they
were not available.” Id. at 26.
*17 “The Constitution guarantees confined individuals
meaningful access to courts, which, in the case of pro
se litigants, includes access to a facility's law library, or
to an alternative source of legal information.” Little v.
Mun. Corp., 51 F. Supp. 3d 473, 497 (S.D.N.Y. 2014)
(citing Bounds v. Smith, 430 U.S. 817, 828 (1977)). “The
‘right of access to the courts’ requires states ‘to give
prisoners a reasonably adequate opportunity to present
claimed violations of fundamental constitutional rights to the
courts.’ ” Bass v. Schenck, No. 9:22-CV-1107 (LEK/ML),
2023 WL 2265740, at *7 (N.D.N.Y. Feb. 28, 2023) (quoting
Bounds, 430 U.S. at 828). “However, this right is not ‘an
abstract, freestanding right to a law library or legal instance
and cannot ground a Section 1983 claim without a showing of
actual injury.” Id. (quotation marks omitted) (quoting Collins
v. Goord, 438 F. Supp. 2d 399, 415 (S.D.N.Y. 2006)); see
also Benjamin v. Fraser, 264 F.3d 175, 185 (2d Cir. 2001)
(“Because law libraries and legal assistance programs do
not represent constitutional rights in and of themselves, but
only the means to ensure a reasonably adequate opportunity
to present claimed violations of fundamental constitutional
rights to the courts, prisoners must demonstrate actual injury
in order to have standing.”); Razzoli v. Exec. Office of
U.S. Marshals, No. 10-CV-4269, 2010 WL 5051083, at *3
(E.D.N.Y. Dec. 2, 2010) (noting that “the Constitution does
not require unlimited and unsupervised access to a law library
at the demand of a prisoner,” and that “[p]rison officials may
impose reasonable restrictions on the use of a prison law
library”).
To state a claim for denial of access to the courts, a plaintiff
must plead “that the alleged shortcomings in the library
or legal assistance program hindered his efforts to pursue
a legal claim[.]” Bass, 2023 WL 2265740, at *7 (quoting
Lewis v. Casey, 518 U.S. 343, 351 (1996)). “[F]or example,
[the plaintiff must show] that a complaint he prepared was
dismissed for failure to satisfy some technical requirement
which, because of deficiencies in the prison's legal assistance
facilities, he could not have known.” Id. (citation and
quotations marks omitted). Additionally, “inmates do not
have a protected liberty interest in tablet use.” Burrell
v. DOCCS, No. 9:22-CV-0702 (DNH/ATB), 2023 WL
1861566, at *9 (N.D.N.Y. Feb. 9, 2023) (citations omitted).
Similarly, alleging “that the facility lacks a dedicated word
processor ... for prisoner use ... does not state a constitutional
claim.” Little, 51 F. Supp. 3d at 498 (citing Taylor v. Coughlin,
29 F.3d 39, 40 (2d Cir. 1994) (per curiam) (noting that
“due process requires that prisoners have access to paper,
pens, notarial services, stamps, and adequate library facilities,
[however] this court has ruled that there is no constitutional
right to a typewriter as an incident to the right of access to
the courts”); Brown v. Nelson, No. 05-CV-4498, 2008 WL
4104040, at *6 (S.D.N.Y. Aug. 29, 2008) (noting that “the
Constitution requires access to paper, pens, notarial services,
stamps, and adequate library facilities as the tools to produce
hand-written submissions necessary to satisfy the right” to
access the courts, and rejecting the plaintiff's argument that
access to a dictionary is constitutionally required)).
Here, plaintiff alleges that he was denied the ability to reset
his “password to commissary”, to retrieve socks from his
property after they were purchased online, and permission to
order a jigsaw puzzle. Compl. at 20. In his list of relief, he
summarily seeks a new system for tablet usage and access to
the law library and word processor. See id. at 34. Plaintiff has
not alleged a viable constitutional claim concerning his access
to the law library, a tablet, or word processor. First, he does
not have a liberty interest in a tablet or word processor. See
Little, 51 F. Supp. 3d at 497. Second, he has not alleged any
actual injury stemming from a lack of access to the law library
or the denial of specific forms for a family court petition.
See Bass, 2023 WL 2265740, at *7. Rather, plaintiff has been
able to access the courts as demonstrated by his filing of
the complaint and letter in this action. See generally Compl.;
Dkt. No. 7. Accordingly, he has failed to state a cognizable
constitutional claim concerning his access to the courts and it
is recommended that any potential claim be dismissed.
d. Cell Search
*18 Plaintiff contends that his constitutional rights were
violated because he was not present during the search of
his cell which was “order[ed]” by Franklin County Sherriff
“J. Cook” and his bible was thrown on the floor which
“is an overt act of arrogance and hatred as well as a bold
challenge for a persons’ right to express their faith without
consequences to the 1st Amendment[.]” Dkt. No. 7 at 2-3.
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“ ‘[T]he Fourth Amendment proscription against
unreasonable searches does not apply within the confines
of the prison cell’ because ‘[t]he recognition of privacy
rights for prisoners in their individual cells simply cannot be
reconciled with the concept of incarceration and the needs
and objectives of penal institutions.’ ” Corley v. City of
New York, No. 1:14-CV-3202 (GHW), 2017 WL 4357662,
at *15 (S.D.N.Y. Sept. 28, 2017) (quoting Hudson v. Palmer,
468 U.S. 517, 526 (1984)). However, “[t]he Second Circuit
has observed that within their cells ‘pretrial detainees may
have some residual privacy interests that are protected by the
Fourth Amendment....’ ” Leneau v. Ponte, No. 1:16-CV-776
(GHW), 2018 WL 566456, at *10 (S.D.N.Y. Jan. 25, 2018)
(quoting United States v. Willoughby, 860 F.2d 15, 21 (2d
Cir. 1988)). “In analyzing the claims of a pretrial detainee, the
Second Circuit has explained that if a search was conducted
by a prison official, ‘established decisional law holds that
the search would not be subject to constitutional challenge,
regardless of whether the security needs could justify it.’ ”
Corley, 2017 WL 4357662, at *15 (citing U.S. v. Cohen,
796 F.2d 20, 24 (2d Cir. 1988) (pretrial detainee retained
sufficient expectation of privacy within his cell to challenge
search ordered by the prosecutor for investigatory reasons
rather than by a prison official for institutional security related
reasons)); see also Ahlers v. Rabinowitz, 684 F.3d 53, 63
(2d Cir. 2012) (citing Block v. Rutherford, 468 U.S. 576,
590 (1984) (holding searches of pretrial detainees’ cells are
constitutional even when the detainees are absent during the
searches)); Williams v. Ramos, No. 13-CV-826 (VB), 2013
WL 7017674, at *8 (S.D.N.Y. Dec. 23, 2013) (citations and
quotation marks omitted) (“[W]hen a prison official initiates
the search of a pre-trial detainee's cell, the search is not
‘subject to constitutional challenge, regardless of whether
security needs could justify it.”). However, if a cell was
“searched at the instigation of non-prison officials for non-
institutional security related reasons, the validity of the search
may be challenged.” Cohen, 796 F.2d at 24 (holding that
the pretrial detainee “retain[ed] an expectation of privacy
within his cell sufficient to challenge the investigatory search
ordered by the prosecutor.”).
The Franklin County Sheriff oversees operation of the
Franklin County Jail. 9 Plaintiff does not allege that a non-
jail official initiated the search of his cell. See Dkt. No.
7 at 1-3. As plaintiff is challenging a cell search that was
conducted at the behest of a jail official, he lacks a viable
constitutional challenge. See Dkt. No. 7 at 2; see also Leneau,
2018 WL 566456, at *10. Further, “[u]nder Hudson ...,
even the intentional destruction of an inmate's property by
a prison officer does not violate the Due Process Clause
if the state provides that inmate with an adequate post-
deprivation remedy.” Little v. Mun. Corp., 51 F. Supp. 3d
473, 499 (S.D.N.Y. 2014) (citation omitted); see also Hudson,
468 U.S. at 536. “New York provides an adequate post-
deprivation remedy in the form of state law causes of action
for negligence, replevin, or conversion.” Esperanza v. City
of New York, 325 F. Supp. 3d 288, 307 (E.D.N.Y. 2018).
Plaintiff has not alleged that his property was destroyed or, if
it was, that he lacked adequate post-deprivation procedures to
grieve the destruction. See Dkt. No. 7 at 2. As such, he has
failed to sufficiently state a due process claim.
9 Sheriff Kevin A. Mulverhill, Franklin
County Sheriff's Office Activity Report
for 2020, https://cms8.revize.com/revize/
franklincountyny/2020Annual% 20report.pdf.
*19 As to plaintiff's mention of the First Amendment in
connection to his bible being thrown on the floor, “[t]o
recover on a [F]irst [A]mendment claim under [section] 1983,
a plaintiff must demonstrate that his [or her] conduct is
deserving of [F]irst [A]mendment protection and that the
defendants’ conduct of harassment was motivated by or
substantially caused by [plaintiff's] exercise of free speech.”
Milo v. City of New York, 59 F. Supp. 3d 513, 522 (E.D.N.Y.
2014) (alterations in original) (quoting Rattner v. Netburn,
930 F.2d 204, 208 (2d Cir. 1991)). To state a First Amendment
retaliation claim, the plaintiff must allege that: “(1) the speech
or conduct at issue was ‘protected;’ (2) the defendants took
‘adverse action’ against the plaintiff ... and (3) there was
a causal connection between the protected speech and the
adverse action[.]” Burroughs v. Petrone, 138 F. Supp. 3d 182,
205-06 (N.D.N.Y. 2015) (quoting Mount Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). Here,
plaintiff has not alleged that he engaged in any protected
conduct and that the officers retaliated against him for doing
so, or that his bible being thrown on the floor was motivated
by his exercise of free speech. See Dkt. No. 7 at 2-3.
Accordingly, he has failed to allege a First Amendment claim
and it is recommended that any such claim be dismissed.
6. Conspiracy Claim under 42 U.S.C. § 1985
Plaintiff summarily asserts that the named defendants “have
conspired to commit these violations as a conspiracy to
interest with civil liberties[.]” Compl. at 7. This is insufficient
to allege a conspiracy claim under 42 U.S.C. § 1985.
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“[T]o make out a violation of § 1985(3), ... the plaintiff
must allege ... four elements: (1) a conspiracy; (2) for the
purpose of depriving, either directly or indirectly, any person
or class of persons of the equal protection of the laws, or
of equal privileges and immunities under the laws;” “and
(3) an act in furtherance of the conspiracy; (4) whereby
a person is either injured in her person or property or
deprived of any right or privilege of a citizen of the United
States.” United Broth. of Carpenters and Joiners of America,
Local 610, AFL-CIO v. Scott, 463 U.S. 825, 828-29 (1983).
In addition, “[t]he conspiracy must be motivated by racial
animus.” Brown v. City of Oneonta, 221 F.3d 329, 341 (2d
Cir. 2000). “[C]omplaints containing only conclusory, vague,
or general allegations that the defendants have engaged in a
conspiracy to deprive the plaintiff of his constitutional rights
are properly dismissed; diffuse and expansive allegations
are insufficient, unless amplified by specific instances of
misconduct.” Ciambriello v. City of Nassau, 292 F.3d 307,
324-25 (2d Cir. 2002).
Plaintiff has not stated any more than conclusory allegations
in support of his purported conspiracy claim. See Sommer
v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983) (per curiam)
(“A complaint containing only conclusory, vague, or general
allegations of conspiracy to deprive a person of constitutional
rights cannot withstand a motion to dismiss.”). Additionally,
“[p]laintiff's claims also would likely be barred by the ‘intra-
agency conspiracy’ doctrine, which provides that officers,
agents or employees of a single corporate entity are legally
incapable of conspiring together.” Hightower v. Veitch, No.
1:19-CV-00577 (GTS/TWD), 2020 WL 3978818, at *9
(N.D.N.Y. Jan. 21, 2020) (citing Everson v. New York City
Transit Auth., 216 F. Supp. 2d 71, 75-76 (E.D.N.Y. 2002)),
report and recommendation adopted, 2020 WL 2028287
(N.D.N.Y. Apr. 28, 2020). Insofar as plaintiff is attempting
to allege a conspiracy between prosecutors or investigators,
that claim is likely barred under the intra-agency conspiracy
doctrine. See Hightower, 2020 WL 3978818, at *9 (citing,
inter alia, Griffin-Nolan v. Providence Washington Ins.
Co., No. 04-CV-1453 (FJS/GJD), 2005 WL 1460424, at
*10-11 (N.D.N.Y. June 20, 2005) (dismissing the plaintiff's
conspiracy claims where the defendants were officers of the
City of Syracuse and the plaintiff did not allege that the
individual defendants had a personal interest in their alleged
conspiracy)). Accordingly, it is recommended that plaintiff's
section 1985 claim be dismissed.
7. Claims Against Towns of Waverly and Lisbon
*20 Plaintiff asserts that “code enforcement officers in the
towns of Waverly and Lisbon have been used in an attempt
to take my property from me.” Compl. at 36. Plaintiff did
not name either town as a defendant in his complaint. 10
See id. at 2. “A municipality may only be held liable under
§ 1983 when its policies or customs result in a plaintiff's
constitutional injury.” Griffin-Nolan, 2005 WL 1460424, at
*3 (citing Monell, 436 U.S. at 694). 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.’ ” Lucente v. County of Suffolk, 980 F.3d 284, 297
(2d Cir. 2020) (quoting Wray v. City of New York, 490 F.3d
189, 195 (2d Cir. 2007)). Plaintiff has not alleged a policy
or custom that resulted in the towns of Waverly or Lisbon
seizing his property or resulted in their “attempt[ed]” seizing.
Compl. at 36. As such, it is recommended that the claims be
dismissed.
10 The Clerk of Court is ordered to add the Town of
Waverly and the Town of Lisbon as defendants on
the docket.
8. Claims Against Michelle Keffer
Plaintiff does not name Michelle Keffer as a defendant in
this action but asks the Court to “[p]rosecute [her] for all
crimes committed against [his children] as indicated by Child
Protective Services.” Compl. at 35. These claims must fail.
Plaintiff lacks standing to initiate a criminal proceeding
against any party. See Linda R.S. v. Richard D., 410 U.S.
614, 619 (1973) (“[A] private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution
of another.”). This Court “does not have the authority or
jurisdiction to ... seek the criminal prosecution of individuals
at the request of a plaintiff,” Walker v. CIBC Ltd., No. 1:20-
CV-1337 (TJM/CFH), 2021 WL 3518439, at *5 (N.D.N.Y.
Apr. 13, 2021), report and recommendation adopted, 2021
WL 3204860 (N.D.N.Y. July 29, 2021), or “commence its
own investigation, commence a criminal prosecution, compel
a law enforcement agency to investigate suspected criminal
activity, nor compel a prosecutor to prosecute.” Eggsware
v. Doe, 1:22-CV-54 (BKS/CFH), 2022 WL 827640, at *5
(N.D.N.Y. Feb. 7, 2022), report recommendation adopted,
2022 WL 823646 (N.D.N.Y. Mar. 18, 2022). Thus, to the
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extent plaintiff wishes to proceed on criminal claims, it is
recommended that such claims be dismissed with prejudice
and without opportunity to amend for failure to state a claim
upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)
(B)(i).
III. Opportunity to Amend
Generally, “[a] pro se complaint should not be dismissed
without the Court granting leave to amend at least once
when a liberal reading of the complaint gives any indication
that a valid claim might be stated.” Nielsen v. Rabin, 746
F.3d 58, 62 (2d Cir. 2014) (citation omitted). “However,
if the problems with a complaint are ‘substantive’ rather
than the result of an ‘inadequately or inartfully pleaded’
complaint, an opportunity to re-plead would be ‘futile’ and
‘should be denied.’ ” Edwards v. Penix, 388 F. Supp. 3d
135, 144-45 (N.D.N.Y. 2019) (quoting Cuoco v. Moritsugu,
222 F.3d 99, 112 (2d Cir. 2000)). Dismissal of claims under
the Younger and/or Rooker-Feldman doctrines are generally
without prejudice. See Rivera, 2022 WL 2341544, at *7
(dismissing claims under these doctrines but providing leave
to amend). However, as plaintiff's claims cannot be brought
against the State of New York, Tammy Gordon, Thomas
Soucia, and Anson Rhodes; and for damages against the
District Attorney's Offices, and Kelly Poupore, because of
immunity grounds or the lack of a cognizable section 1983
claim, it is recommended that the claims against them be
dismissed with prejudice and without leave to amend. As
to the claims against the District Attorney's Offices and
Kelly Poupore for injunctive relief, and Michael Perry, the
New York State Troopers, and the Franklin County Public
Defender's and Conflict Defender's Offices it is recommended
that the claims be dismissed without prejudice but without
leave to amend. As plaintiff's criminal and family court
proceedings are ongoing, amendment at this time would
be futile. Finally, as to the claims against Franklin County
Jail, J. Cook, and the Towns of Waverly and Lisbon, it
is recommended that the complaint be dismissed without
prejudice and with leave to amend.
IV. Conclusion
*21 WHEREFORE, for the reasons set forth herein, it is
hereby
ORDERED, that plaintiff's application to proceed in forma
pauperis (Dkt. No. 8) is GRANTED for purposes of filing
only; and it is further
RECOMMENDED, that plaintiff's complaint (Dkt. No.
2) against the State of New York, Franklin County Child
Support Court, Tammy Gordon, Anson Rhodes, Thomas
Soucia, Michelle Keffer; and insofar as he seeks monetary
damages, against Franklin County District Attorney's Office,
St. Lawrence County District Attorney's Office, and
Kelly Poupore be DISMISSED WITH PREJUDICE and
WITHOUT LEAVE TO AMEND; and it is further
RECOMMENDED, that plaintiff's complaint (Dkt. No. 2)
against the New York State Troopers, Michael Perry, Franklin
County Public Defender's Office, Franklin County Conflict
Defender's Office; and Franklin County District Attorney's
Office, St. Lawrence County District Attorney's Office, and
Kelly Poupore insofar as the claims seek injunctive relief, be
DISMISSED WITHOUT PREJUDICE and WITHOUT
LEAVE TO AMEND; and it is further
RECOMMENDED, that plaintiff's complaint (Dkt. No.
2) against the Franklin County Jail, J. Cook, the Town
of Waverly, and the Town of Lisbon be DISMISSED
WITHOUT PREJUDICE and WITH LEAVE TO
AMEND; and it is
RECOMMENDED, that should the District Judge adopt this
Report-Recommendation and Order, plaintiff be given thirty
(30) days from the date of the Order adopting this Report-
Recommendation and Order to file an amended complaint,
and if plaintiff does not file an amended complaint, it will be
deemed as an abandonment of any claims for which leave to
replead has been granted and will result in judgment being
entered against plaintiff on these claims without further order
by the Court; and it is
ORDERED, that plaintiff's letter motion (Dkt. No. 7) is
granted to the extent set forth in this Report-Recommendation
and Order; and it is further
ORDERED, that the Clerk of Court add J. Cook, Town of
Lisbon, and Town of Waverly as named defendants in the
action; and it is further
ORDERED, that the Clerk of the Court serve a copy of this
Report-Recommendation and Order in accordance with Local
Rules.
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IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has 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. 72 & 6(a). 11
11 If you are proceeding pro se and are served with
this Report-Recommendation & 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 & 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., 2023 WL 11965130
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Damon v. New York
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (2)
Title PDF Court Date Type
1. Docket 8:23-CV-00074
Damon v. State of New York et al
— N.D.N.Y. Jan. 19, 2023 Docket
2. Docket 1:22-CV-10707
Damon v. State of New York et al
— S.D.N.Y. Dec. 19, 2022 Docket
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Damon v. New York
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History (3)
Direct History (3)
1. Damon v. New York
2023 WL 1951372 , S.D.N.Y. , Jan. 12, 2023
Transferred to
2. Damon v. New York
2023 WL 11965130 , N.D.N.Y. , Mar. 28, 2023
Report and Recommendation Adopted by
3. Damon v. New York
2023 WL 11965128 , N.D.N.Y. , Apr. 24, 2023
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Damon v. New York
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Molina v. County of Westchester, Not Reported in Fed. Supp. (2017)
2017 WL 1609021
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Davis v. McCready, S.D.N.Y., October 23, 2017
2017 WL 1609021
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Arthur R. MOLINA, Plaintiff,
v.
The COUNTY OF WESTCHESTER; Correction
Officer Saraireh, Shield No. 1580; and
C.O. Santora, Shield No. 1598, Defendants.
16 CV 3421 (VB)
|
Signed 04/28/2017
Attorneys and Law Firms
Arthur R. Molina, Valhalla, NY, pro se.
David Polizzi, Westchester County Attorney's Office, White
Plains, NY, for Defendants.
OPINION AND ORDER
Vincent L. Briccetti, United States District Judge
*1 Plaintiff Arthur R. Molina, proceeding pro se and in
forma pauperis, brings this action under 42 U.S.C. § 1983,
alleging defendants violated his constitutional rights while
he was incarcerated at Westchester County Jail, by failing to
protect him from assault by another inmate.
Now pending is defendants' motion to dismiss the complaint
pursuant to Rule 12(b)(6). 1 (Doc. #17).
1 Defendants filed their motion to dismiss on
September 22, 2016. Plaintiff filed his opposition,
after the Court sua sponte extended his time to do
so (Doc. #24), on November 14, 2016. (Doc. #25).
Defendants never submitted a reply or a request for
an extension of time, and their deadline to do so has
long passed. The Court therefore deems the motion
to be fully submitted.
For the reasons set forth below, the motion is GRANTED.
However, plaintiff is granted leave to file an amended
complaint, with the limitations explained below.
This Court has subject matter jurisdiction pursuant to 28
U.S.C. § 1331.
BACKGROUND
For purposes of ruling on a motion to dismiss, the Court
accepts all factual allegations of the complaint as true, and
draws all reasonable inferences in plaintiff's favor.
On March 8, 2016, while plaintiff was an inmate at
Westchester County Jail, he was attacked by another inmate,
“Mr. Tucker,” who had recently been moved from the
Special Housing Unit (“SHU”) to the cell next to plaintiff's.
Specifically, plaintiff alleges while he was “walking the
yard,” Tucker “ran up from behind ... and attacked [him,]
hitting [him], with closed[ ] fists,” and that Tucker's “intention
[was] to cause plaintiff serious bodily harm.”(Compl. at S), 2
Plaintiff alleges Tucker carried out this assault because, five
minutes earlier, another inmate told Tucker that if he attacked
someone, he would be moved to another cell block.
2 Citations to the complaint refer to the page numbers
stamped by the ECF filing system at the top of the
page.
Plaintiff alleges correction officers Saraireh and Santora were
“not walking the rec/yard and sitting in the doorway that
enters the rec/yard therefor[e] could not see or hear what was
going on in the rec/yard.” (Compl. at 11). In addition, he
alleges Saraireh and Santora “knew of the risk to [plaintiff']s
safety and [were] negligent for not tryin[g] to prevent the
assault before it happen[ed].” (Compl. at 9). He alleges they
“had reasonable knowledge to know that an incident was
tak[ing] place,” but “waited to the last minute to defuse the
incident.” (Id.).
Plaintiff suffered several injuries and was taken to the
emergency room, where he received medical care. When he
returned to Westchester County Jail, he was told he “would
not face any disciplinary action,” and that the inmate who
attacked him would be put back in SHU. (Compl. at 9).
He was also told that “the facility [was going to] press[ ]
charges.” (Id. at 10).
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DISCUSSION
I. Standard of Review
In deciding a Rule 12(b)(6) motion, the Court evaluates
the sufficiency of the operative complaint under the “two-
pronged approach” articulated by the Supreme Court in
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, plaintiff's
legal conclusions and “[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements,”
are not entitled to the assumption of truth and are thus
not sufficient to withstand a motion to dismiss. Id. at 678;
Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second,
“[w]hen there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Ashcroft v.
Iqbal, 556 U.S. at 679.
*2 To survive a Rule 12(b)(6) motion, the allegations in the
complaint must meet a standard of “plausibility.” Id. at 678;
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A
claim is facially 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.”
Ashcroft v. Iqbal, 556 U.S. at 678. “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.
The Court must liberally construe submissions of pro se
litigants, and interpret them “to raise the strongest arguments
that they suggest.” Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal quotation
marks and citation omitted). Applying the pleading rules
permissively is particularly appropriate when, as here, a pro se
plaintiff alleges civil rights violations. See Sealed Plaintiff v.
Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). “Even in
a pro se case, however ... threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements,
do not suffice.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir.
2010) (internal quotation marks and citation omitted). Nor
may the Court “invent factual allegations” plaintiff has not
pleaded. Id.
II. Failure to Protect Claim
Defendants argue plaintiff has failed to state a constitutional
violation for failure to protect him against assault by another
inmate.
The Court agrees.
A claim for deliberate indifference brought by a convicted
prisoner “is analyzed under the Eighth Amendment,” Caiozzo
v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009) (overruled on
other grounds by Darnell v. Pineiro, 849 F.3d 17 (2d Cir.
2017)), whereas “[a] pretrial detainee's claims ... are governed
by the Due Process Clause of the Fourteenth Amendment.”
Darnell v. Pineiro, 849 F.3d at 29.
To to state a claim for deliberate indifference, whether
under the Eighth or Fourteenth Amendment, plaintiff's
allegations must satisfy a two-prong test. First, the
plaintiff must plausibly allege he suffered a sufficiently
serious constitutional deprivation. Second, the plaintiff must
plausibly allege that the defendant acted with deliberate
indifference. Taylor v. Goorde, 548 Fed. Appx. 696, 698 (2d
Cir. 2013) (summary order) (convicted prisoner); 3 Darnell v.
Pineiro, 849 F.3d at 29 (pretrial detainee).
3 Plaintiff will be provided with copies of all
unpublished opinions cited in this decision. See
Lebron v. Sanders, 557 P.3d 76, 79 (2d Cir. 2009).
With respect to the first prong, the standard is the same
whether the claim is brought by a convicted prisoner or
a pretrial detainee, “Under both the Eighth and Fourteenth
Amendments, to establish an objective deprivation, ‘the
inmate must show that the conditions, either alone or in
combination, pose 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)).
With respect to the second prong, however, the legal standards
are different for convicted prisoners and pretrial detainees.
See Darnell v. Pineiro, 849 F.3d at 32-36.
*3 For convicted prisoners, to whom the Eighth Amendment
applies, a corrections officer acts with deliberate indifference
when he subjectively “has knowledge that an inmate faces a
substantial risk of serious harm and he disregards that risk by
failing to take reasonable measures to abate the harm.” Hayes
v. N.Y.C. Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996). The
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officer “must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.” Cuoco v. Moritsugu,
222 F.3d 99, 107 (2d Cir. 2000).
However, for pretrial detainees, to whom the Fourteenth
Amendment applies, the second prong “of a deliberate
indifference claim is defined objectively.” Darnell v. Pineiro,
849 F.3d at 35 (emphasis added). A “pretrial detainee must
prove that the defendant-official acted intentionally ... or
recklessly failed to act with reasonable care to mitigate the
risk ... even though the defendant-official knew, or should
have known,” of the risk of harm. Id. Thus, unlike the
Eighth Amendment, the Due Process Clause of the Fourteenth
Amendment “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.
Here, defendants presume, without explaining, that plaintiff
was a convicted prisoner, not a pretrial detainee, during the
relevant period. Because neither party has clearly articulated
whether plaintiff was a convicted prisoner or a pretrial
detainee at the time of the alleged incident, the Court will
evaluate plaintiff's complaint under both standards.
Applying the applicable standards, the Court concludes
plaintiff's allegations are sufficient with respect to the first
prong of the deliberate indifference claim, but are insufficient
as to the second prong.
A. Sufficiently Serious Constitutional Deprivation
Plaintiff alleges defendants Saraireh and Santora did not
“walk” the area where he was attacked, and instead sat “in the
doorway” and that they “therefor[e] could not see or hear what
was going on in the rec/yard,”' (Compl. at 11). In addition, in
his opposition papers, plaintiff states there was an “absence of
any correctional officers ... present or within any plain visible
view at any time in the recreational yard[,] thus violating the
procedures.” (Opp. Br. ¶ 7).
The failure of a correction officer to oversee prisoners,
intervene in an attack, or otherwise fail to abide by prison
safety protocols may under certain circumstances create a
condition which poses a substantial risk of serious harm thus
constituting a sufficiently serious constitutional violation.
See, e.g., Fernandez v. N.Y.C. Dep't of Corr., 2010 WL
1222017, at *4 (S.D.N.Y. Mar. 29, 2010) (finding complaint
sufficiently alleged substantial risk of harm where it was
“possible that had [a corrections officer] been in the dorm
area at the time of [plaintiff's] attack, he could have prevented
or interrupted the attack”); Rennalls v. Alfredo, 2015 WL
5730332, at *4 (S.D.N.Y. Sept. 30, 2015) (the Court was
“willing to assume, given the early stage in th[e] Action,
Plaintiff ha[d] plausibly alleged that [defendant's] actions may
have put Plaintiff at a substantial risk of serious harm,” where
plaintiff alleged one of the defendants failed to comply with
a safety protocol).
Therefore, construing plaintiff's allegations liberally and
drawing all reasonable inferences in his favor, the Court
concludes plaintiff has plausibly alleged facts from which a
sufficiently serious constitutional violation could be inferred.
B. Deliberate Indifference
*4 As mentioned previously, the second prong of a
deliberate indifference claim differs depending on whether
plaintiff is a convicted prisoner or a pretrial detainee. To
survive a motion to dismiss, a convicted prisoner must
plausibly allege the defendant(s) subjectively knew what they
had done—here, their failure to intervene in the inmate-on-
inmate attack—was unreasonable. A pretrial detainee, on the
other hand, must plausibly allege the conduct complained of
was objectively unreasonable, i.e., not reasonable under the
circumstances.
Here, plaintiff alleges defendants Saraireh and Santora “knew
of the risk to [his] safety and [were] negligent for not tryin[g]
to prevent the assault before it happen[ed].” (Compl. at 9).
He further alleges the corrections officers “had reasonable
knowledge to know that an incident was tak[ing] place,”
but “waited to the last minute to defuse the incident.” (Id.).
However, plaintiff does not allege or explain how Saraireh
or Santora learned of this risk or how plaintiff knows they
became aware of this risk. These allegations are insufficient
to show either objective or subjective deliberate indifference
for several reasons.
First, such conclusory allegations of defendants' knowledge
are insufficient. See Houston v. Nassau Cty., 2012 WL
729352, at *6 (E.D.N. Y. Mar. 7, 2012) (“Although plaintiff
alleges that the County was [a]ware of plaintiff being at risk
of being attacked,' ... this conclusory allegation is insufficient
to maintain a Section 1983 deliberate indifference claim.”).
Second, plaintiff alleges defendants were merely “negligent”
in their actions. (Compl. at 9). Negligence is insufficient to
state a Section 1983 violation under either the subjective or
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objective standard. Hayes v. N.Y.C. Dep't of Corr., 84 F.3d at
620 (“to state a cognizable section 1983 claim, the prisoner
must allege actions or omissions sufficient to demonstrate
deliberate indifference; mere negligence will not suffice”).
Finally, and most significantly, the allegations of the
complaint suggest the attack happened quickly and with very
little warning. Specifically, plaintiff alleges “at 9:50 AM” the
inmate who attacked him was advised “to attack someone
in the yard so he [would] be moved” to another housing
block. (Compl. at 8). Plaintiff alleges the attack then took
place five minutes later, at 9:55 a.m. (See id. at 2). Plaintiff
does not allege any defendant corrections officer heard this
advice or was otherwise aware or should have been aware
of this advice. It is implausible defendants themselves, or
reasonable corrections officers in their place, would have
learned of the likelihood of an attack and been able to do
something to prevent it within such a short period of time.
Moreover, plaintiff does not allege he expressed fear for his
safety prior to the attack or provide any other reason why
any correction officer should have known there was danger
of an attack. “Absent clear notice of a risk of harm to the
prisoner, courts routinely deny deliberate indifference claims
based upon surprise attacks.” Fernandez v. N.Y.C. Dep't of
Corr., 2010 WL 1222017, at *4 (internal quotation marks
omitted). In addition, plaintiff does not say how long the
alleged attack lasted. He states only that he “t[ook] multiple
blows to the head and face causing a concussion,” and that
he “awoke to find the attacker being held on the wall by
C.O. Santora.” (Compl at 9). There are therefore insufficient
allegations to suggest defendants Saraireh and Santora waited
an unreasonable amount of time before they intervened. 4
4 As part of his opposition papers, plaintiff also
submitted the affidavit of Kevin Alvarez, a fellow
inmate at Westchester County Jail. (Doc. #26). Mr.
Alvarez writes in his affidavit that he witnessed the
events and that “[i]t was not until much later that the
prison inmate attacker was subdued and [plaintiff]
was ... attended to.” (Id. ¶¶ 6-9). However, “much
later” is vague, and without additional factual
context, this is insufficient to suggest defendants
acted unreasonably.
*5 Under the circumstances alleged, it is not plausible
either that defendants subjectively knew, or that a reasonable
corrections officer in their place should have known, of any
substantial risk to plaintiff, or would have been able to take
actions that would have prevented the attack.
As a result, plaintiff has failed plausibly to allege the second
prong of the failure to protect standard under either the
Eighth or the Fourteenth Amendment, Accordingly, plaintiff's
Section 1983 failure to protect claim against defendants
Saraireh and Santora is dismissed.
III. Monell Liability
Defendants argue plaintiff has failed to state a claim
against Westchester County (“the County”) under Monell v.
Department of Social Services, 436 U.S. 658 (1978). 5
5 Defendants also argue the Westchester County
Department of Corrections (“DOCs”) should
be dismissed “because it is not a suable
entity.” (Defs.'s Br. at 1, n. 1). By Order dated
June 7, 2016, the Court dismissed all claims against
DOCs for that reason. (Doc. #7). In addition,
defendants argue they are entitled to qualified
immunity. (Defs.'s Br. at 9). The Court need not
address qualified immunity at this time, as it
dismisses all of plaintiffs' federal claims on the
merits.
The Court agrees.
A municipality like the County is liable under Section 1983
only “when execution of a government's 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. To state a Monell claim, a plaintiff need not allege
the policy or custom itself is unconstitutional; rather, liability
exists when a municipal policy is valid but the municipality's
actual practice is not. Amnesty America v. Town of W.
Hartford, 361 F.3d 113, 125-26 (2d Cir. 2004) (practice of
using excessive force can be basis for municipal liability even
though city's policy on use of force is itself constitutional).
“While Monell claims are not subject to a ‘heightened’
pleading standard beyond that defined in Rule 8(a)(2), such
claims nevertheless must meet the plausibility requirements
of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 572
(2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009).”
Guzman v. United States, 2013 WL 5018553, at *4 (S.D.N.Y.
September 13, 2013) (quoting Leatherman v. Tarrant Cty.
Narcotics Intelligence and Coordination Unit, 507 U.S. 163,
168 (1993)). “In other words, boilerplate allegations will
not suffice.” Id. (internal quotation marks omitted). In sum,
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without more, “[t]he allegations [a defendant] acted pursuant
to a ‘policy,’ without any facts suggesting the policy's
existence, are plainly insufficient.” Missel v. Cty. of Monroe,
351 Fed.Appx. 543, 545-46 (2d Cir. 2009) (summary order)
(citing Dwares v. City of New York, 985 F.2d 94, 100-02 (2d
Cir. 1993)).
Here, plaintiff alleges only that the individual defendants'
failure to “walk[ ] the rec-yard” and “wait[ ] to the last minute
to defuse the incident” were “part of a policy[,] practice, and
custom.” (Compl. at 9).
Applying the legal standards just outlined, plaintiff's
boilerplate allegations against the County are plainly
insufficient. Accordingly, plaintiff's claims against the
County are dismissed.
IV. State Law Claims
*6 Defendants argue any state law tort claims liberally
construed from plaintiff's complaint—such as causes of
action for negligence or negligent infliction of emotional
distress—should be dismissed for failure to file a notice of
claim.
The Court agrees.
“[I]n a federal court, state notice-of-claim statutes apply to
state-law claims.” Hardy v. N.Y.C. Health & Hosps. Corp.,
164 F.3d 789, 793 (2d Cir. 1999). “In New York, filing
a [n]otice of [c]laim with a municipality is a condition
precedent to commencing a tort claim against any employee
of that municipality.”' Chamberlain v. City of White Plains,
986 F. Supp. 2d 363, 396 (S.D.N.Y. 2013). “Failure to comply
with [this] requirement[ ] ordinarily requires a dismissal for
failure to state a cause of action.” Hardy v. N.Y.C. Health &
Hosps. Corp., 164 F.3d at 794.
In addition, “General Municipal Law § 50-e makes
unauthorized an action against individuals who have not been
named in a notice of claim.” DC v. Valley Cent. Sch. Dist.,
2011 WL 3480389, at * 1 (S.D.N.Y. June 29, 2011) (internal
quotation marks omitted).
Here, plaintiff acknowledges he did not file a notice of claim.
(See Opp. Br. ¶ 10). In an effort to overcome this deficiency,
plaintiff requests permission to file a late notice of claim. This
Court does not have the authority to grant plaintiff's request,
however. New York General Municipal Law Section 50-e(7)
“makes clear that [a]ll applications under this section shall be
made to the supreme court or to the county court.” Horvath v.
Daniel, 423 F. Supp. 2d 421, 424-25 (S.D.N.Y. 2006) (internal
quotations omitted). “Accordingly, federal district courts are
without jurisdiction to hear these applications.” Id.
Plaintiff's state law claims are therefore dismissed.
V. Leave to Amend
Rule 15(a)(2) instructs that courts “should freely give leave”
to amend a complaint “when justice so requires.” Liberal
application of Rule 15(a) is warranted with respect to
pro se litigants who “should be afforded every reasonable
opportunity to demonstrate that [they have] a valid claim.”'
Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (quoting
Satchel v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984)).
District courts “should not dismiss [pro se complaints]
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) (quoting Gomez v. USAA Fed. Sav. Bank, 171
F.3d 794, 795 (2d Cir. 1999)).
However, leave to amend may “properly be denied for ...
‘futility of amendment.’ ” Ruotolo v. City of New York, 514
F.3d 184, 191 (2d Cir. 2008) (quoting Foman v. Davis, 371
U.S. 178, 182(1962)). This is true even when plaintiff is
proceeding pro se. See Martin v. Dickson, 100 Fed.Appx. 14,
16 (2d Cir. 2004) (summary order).
Here, as explained above, the Court does not have the
authority to grant plaintiff's request to file a late notice
of claim with respect to his state law claims. In addition,
plaintiff's Monell claim against the County is plainly
insufficient to state a claim, and nothing in the complaint
suggests he might have a valid claim against the County. Thus,
granting plaintiff leave to amend his state law claims or his
Monell claim against the County would be futile.
*7 However, a liberal reading of plaintiff's complaint
suggests he may have a valid Section 1983 claim for failure
to protect against defendants Saraireh and Santora. Moreover,
plaintiff has not previously been provided an opportunity to
amend his complaint.
Accordingly, plaintiff is granted leave to amend only the
claim that Saraireh and Santora violated his constitutional
rights by failing to protect him against the inmate attack.
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Plaintiff is reminded that any factual allegation in the
amended complaint must be true to the best of his knowledge,
information, and belief. See Fed. R. Civ. P. 11(b)(3). In the
amended complaint, plaintiff shall clearly set forth the facts
that give rise to failure to protect claim, including the dates,
times, and places of the alleged underlying acts. See Lee
v. Graziano, 2013 WL 4426447, at *8 (N.D.N.Y. Aug. 15,
2013). Plaintiff must also state whether he was a pretrial
detainee or a convicted prisoner at the time of the alleged
attack on March 8, 2016.
The amended complaint will completely replace, not
supplement, the existing complaint. Therefore, plaintiff
must include in the amended complaint all information
necessary for his failure to protect claim.
CONCLUSION
Defendants' motion to dismiss GRANTED.
Plaintiff is granted leave to amend only as to his Section
1983 failure to protect claim against the individual defendants
Saraireh and Santora. Plaintiff shall file his amended
complaint by no later than June 1, 2017. Plaintiff is directed
to utilize the Amended Complaint form attached hereto. If
plaintiff fails to comply with this order, his complaint may be
dismissed for failure to prosecute or failure to comply with a
court order. Fed. R. Civ. P. 41(b).
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).
The Clerk is instructed to terminate the County of Westchester
as a defendant.
The Clerk is further instructed to terminate the motion. (Doc.
#17).
SO ORDERED.
Attachment
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All Citations
Not Reported in Fed. Supp., 2017 WL 1609021
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Molina v. County of Westchester
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Filings (1)
Title PDF Court Date Type
1. Docket 7:16-CV-03421
Molina v. Westchester County Dept. of Correction et al
— S.D.N.Y. May 09, 2016 Docket
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Molina v. County of Westchester
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History (2)
Direct History (1)
1. Molina v. County of Westchester
2017 WL 1609021 , S.D.N.Y. , Apr. 28, 2017
Related References (1)
2. Molina v. Saraireh
2017 WL 5004311 , S.D.N.Y. , Oct. 31, 2017
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Molina v. County of Westchester
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Blake v. Kelly, Not Reported in F.Supp.3d (2014)
2014 WL 4230889
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Overruling Risk
Overruling Risk Darnell v. Pineiro, 2nd Cir., February 21, 2017
2014 WL 4230889
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Charles BLAKE, Plaintiff,
v.
Raymond KELLY, Commissioner, New
York City Police Department, Israel Sexton,
Sergeant, New York City Police Department,
and The City of New York, Defendants.
No. 12 Civ. 7245(ER).
|
Signed Aug. 26, 2014.
OPINION AND ORDER
RAMOS, District Judge.
*1 Pro se Plaintiff Charles Blake (the “Plaintiff”) brings
this action pursuant to 42 U.S.C. § 1983 against former
New York Police Department Commissioner Raymond Kelly
(“Kelly”), Sergeant Israel Sexton (“Sexton”), and the City of
New York (the “City,” and together with Kelly and Sexton, the
“Defendants”). The Plaintiff alleges that he was assaulted and
injured while awaiting arraignment in the holding cell of the
New York State Supreme Court, Kings County. Am. Compl.
1–6, Doc. 18.
Presently before the Court is Defendants' motion to dismiss
the Complaint under Rule 12(c) of the Federal Rules of Civil
Procedure. See Doc. 33. For the reasons set forth below,
Defendants' motion to dismiss is GRANTED in part and
DENIED in part.
I. Factual Background
The following facts are based on the allegations in the
Amended Complaint, which the Court accepts as true for
purposes of the instant motion. See, e.g., Walker v. Schult, 717
F.3d 119, 124 (2d Cir.2013).
On August 26, 2010 Plaintiff was held as a pretrial detainee
at the Brooklyn County Court's Central Booking Detention
Holding Facility in Brooklyn, New York. Am. Compl. 3. 1
Overcrowding forced multiple detainees, including Plaintiff,
to sit or lie on the floor, rather than in seats, within the holding
cell. Id. Detainees made several complaints to the holding
cell officers regarding the overcrowding and shortage of seats.
Id. At 6:45 p .m., approximately fifteen detainees left the
holding cell to receive their dinner. Id. Plaintiff sat in a seat
that opened up as a result. Id. One of the detainees returned to
find Plaintiff sitting in the seat and demanded that he move. Id.
at 4. When Plaintiff refused, the detainee began to physically
assault Plaintiff. Id. A second detainee then joined Plaintiff's
assailant, and started to severely beat Plaintiff. Id.
1 The Court notes that Plaintiff's Amended
Complaint did not include page numbers. As a
result, the Court will refer to the page numbers
provided by the Court's electronic filing system
(ECF).
Because the detainee holding cell was left unmonitored,
Plaintiff was subjected to beatings for ten minutes before the
first officer—Sergeant Sexton—arrived. Id. Initially, Sexton
verbally demanded that the assailants stop beating Plaintiff,
but Sexton “did not physically intercede to prevent further
physical abuse upon [Plaintiff].” Id. After his verbal demands
failed, Sexton went to seek assistance. Id. Sexton then
returned approximately five minutes later with two other
officers who helped break up the altercation. Id. After Sexton
observed that Plaintiff had facial swelling, “defensive cuts”
to his back, and a potentially fractured right ankle, he sent
for emergency medical personnel; they arrived approximately
fifteen minutes later. Id. Staff then transported Plaintiff to
Kings County Hospital. Id.
Plaintiff claims that, as a result of Defendants' actions, he
suffered serious injuries, including: closed dislocation of
his right ankle, a right ankle fracture, blunt trauma, facial
lacerations, severe headaches, dizziness, difficulty sleeping,
depression and mental anguish. Id. at 6. Plaintiff attached to
his Amended Complaint various medical records, designated
as Exhibit A, 2 which corroborate the allegations that he
suffered a long-term or permanent physical injury. Plaintiff
underwent two surgical operations on his right ankle, and was
referred to physical therapy afterwards. Am. Compl. Ex. A.
The records provided also indicate that Plaintiff may need
further surgical work done in the future. Id. Plaintiff claims he
is unable to stand for long periods of time, cannot run and is
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unable to climb stairs without holding on to a rail for support.
Id. at 6.
2 In a Rule 12(b)(6) analysis, a district court
generally must confine itself to the four corners
of the complaint and look only to the allegations
therein. Roth v. Jennings, 489 F.3d 499, 509 (2d
Cir.2007). However, a court may also consider
allegations in documents that are either attached to
the complaint, incorporated by reference or integral
to the complaint, provided that there is no dispute
regarding their authenticity, accuracy or relevance.
DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104,
111 (2d Cir.2010) (citations omitted). The Court
finds that the medical records contained in Exhibit
A may properly be considered in connection with
the instant motion.
*2 Plaintiff alleges that the conditions of his confinement
on August 26, 2010 violated his rights under the Eighth
Amendment on several grounds. Id. at 5. First, Plaintiff
asserts that the Defendants' deliberate indifference to the
conditions of his confinement violated his civil rights. Id.
The overcrowding in the holding cell caused excessive noise
and anxiety, and ultimately created an unsupervised “den
of violence.” Id. Plaintiff also asserts that Sexton failed to
exercise adequate care for Plaintiff's safety by failing to
prevent reasonably foreseeable physical abuse. Id. at 4. Lastly,
Plaintiff claims that Defendants deliberately and negligently
exceeded the design capacity requirements for the holding
cell. Id. at 5. Accordingly, Plaintiff seeks a total $10,000,000
judgment against the Defendants jointly and severally. Id. at 9.
A. Procedural History
On September 24, 2012, Plaintiff commenced this action
by filing the Complaint. Compl., Doc. 3. The Complaint
included Commissioner Kelly and a John Doe Defendant.
Id. Given Plaintiff's pro se status, the Court directed the
Clerk of the Court to amend the caption of this action to
include Defendant New York City and ordered the New York
City Law Department to provide the identity and service
address of the John Doe Defendant. Doc. 7. On February
22, 2012, the New York City Law Department ascertained
the identity of the John Doe Defendant to be Sergeant
Sexton. Doc. 12. Plaintiff then filed an Amended Complaint
against Defendants on April 10, 2013. Doc. 18. The case
was transferred to the undersigned from the Honorable Judge
Colleen McMahon on July 17, 2013.
Defendants construe Plaintiff's Amended Complaint as
raising claims under the due process clause of the Fourteenth
Amendment for deliberate indifference to his safety and
conditions of confinement. Through the instant motion,
Defendants seek dismissal of Plaintiff's claims on the grounds
that Plaintiff (1) fails to state a claim under 42 U.S.C. §
1983 for deliberate indifference against Sexton; and (2) fails
to allege personal involvement by Kelly in a constitutional
violation. Defs.' Mem. 1, 6, Doc. 35. On May 28, 2014,
Plaintiff filed his memorandum of law in opposition to
Defendants' motion. Pl.'s Opp., Doc. 38. Rather than file a
reply brief, on June 9, 2014, Defendants submitted a letter to
the Court indicating their intention to rely on the arguments
set forth in their opening papers. 3
3 The Court notes that Defendants' memorandum of
law solely refers to Sexton and Kelly, and does not
advance any arguments to dismiss the City from
the instant action. Accordingly, the City will not be
dismissed.
II. Discussion
A. Legal Standard
Rule 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.” Fed.R.Civ.P. 12(c). The Court
applies the same standard of review to a Rule 12(c) motion as
it does to a motion to dismiss for failure to state a claim upon
which relief can be granted under Rule 12(b)(6). Cleveland v.
Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006).
When ruling on a motion to dismiss pursuant to Rule 12(b)
(6), district courts are required to accept as true all factual
allegations in the complaint and to draw all reasonable
inferences in the plaintiff's favor. Walker, 717 F.3d at 124;
see also, e.g., Famous Horse Inc. v. 5th Ave. Photo Inc., 624
F.3d 106, 108 (2d Cir.2010). However, this requirement does
not apply to legal conclusions, bare assertions or conclusory
allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007)). In order to satisfy the pleading standard set
forth in Rule 8 of the Federal Rules of Civil Procedure,
a complaint must contain sufficient factual matter to state
a claim to relief that is plausible on its face. Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 570). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. Accordingly,
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a plaintiff is required to support its claims with sufficient
factual allegations to show “more than a sheer possibility that
a defendant has acted unlawfully.” Id. “Where a complaint
pleads facts that are merely consistent with a defendant's
liability, it stops short of the line between possibility and
plausibility of entitlement to relief.” Id. (quoting Twombly,
550 U.S. at 557) (internal quotation marks omitted).
*3 The same standard applies to motions to dismiss pro
se complaints. Mancuso v. Hynes, 379 F. App'x 60, 61
(2d Cir.2010) (summary order) (citing Harris v. Mills, 572
F.3d 66, 72 (2d Cir.2009)). However, the Court remains
obligated to construe a pro se complaint liberally, Hill v.
Curcione, 657 F.3d 116, 122 (2d Cir.2011), and to interpret
a pro se plaintiff's claims as raising the strongest arguments
that they suggest. Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474–75 (2d Cir.2006). In order to survive a
motion to dismiss, a plaintiff's pleadings must contain “more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678. A complaint that “tenders
naked assertions devoid of further factual enhancement” will
not suffice. Id. (quoting Twombly, 550 U.S. at 557) (internal
quotation marks and alterations omitted); see also Triestman,
470 F.3d at 477 (“[P ]ro se status ‘does not exempt a
party from compliance with relevant rules of procedural and
substantive law.’ “ (quoting Traguth v. Zuck, 710 F.2d 90, 95
(2d Cir.1983)).
B. Plaintiff Fails to Allege Defendant Kelly's Personal
Involvement
Defendants argue that Plaintiff has failed to allege Kelly's
personal involvement in any of the alleged constitutional
deprivations. Defs.' Mem. 7–8. As a general matter, a prisoner
who brings a § 1983 claim against individual defendants must
allege that they were directly and personally involved in the
alleged constitutional deprivations. Wright v. Smith, 21 F.3d
496, 501 (2d Cir.1994); Moffitt v. Town of Brookfield, 950 F.2d
880, 885 (2d Cir.1991); see also Shomo v. City of New York,
579 F.3d 176, 184 (2d Cir.2009) ( “[P]ersonal involvement
of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.”). 4
4 In Colon v. Coughlin, the Second Circuit held
that a plaintiff may adequately allege personal
involvement by showing that the defendant: (1)
participated directly in the alleged constitutional
violation; (2) after being informed of the violation
through a report or appeal, failed to remedy the
wrong; (3) created a policy or custom under which
unconstitutional practices occurred, or allowed
the continuance of such a policy or custom; (4)
was grossly negligent in supervising subordinates
who committed the wrongful act; or (5) exhibited
deliberate indifference to rights of inmates by
failing to act on information indicating that
unconstitutional acts were occurring. 58 F.3d 865,
873 (2d Cir.1995). “Only two Colon categories
survive after Iqbal—(1) a supervisor is only held
liable if that supervisor participates directly in
the alleged constitutional violation, and part of
(3) if that supervisor creates a policy or custom
under which unconstitutional practices occurred.
The other Colon categories impose the exact
types of supervisory liability that Iqbal eliminated
—situations where the supervisor knew of and
acquiesced to a constitutional violation committed
by a subordinate.” McNair v. Kirby Forensic
Psychiatric Ctr., No. 09 Civ. 6660(SAS), 2010 WL
4446772, at *6 (S.D.N.Y. Nov.5, 2010); but see
Sash v. United States, 674 F.Supp.2d 531, 544
(S.D.N.Y.2009) (“Where the constitutional claim
does not require a showing of discriminatory intent,
but instead relies on the unreasonable conduct or
deliberate indifference standard[ ] of the ... Eighth
Amendment[ ], the personal involvement analysis
set forth in Colon v. Coughlin may still apply.”).
Moreover, a defendant cannot be held liable based solely upon
his supervisory capacities or under a theory of respondeat
superior. See Hernandez v. Keane, 341 F.3d 137, 144 (2d
Cir.2003). “Mere presence in the ‘prison chain of command’
is not sufficient to demonstrate personal involvement for
purposes of [§ ] 1983.” Rivera v. Bloomberg, No. 11 Civ.
629(PGG), 2012 WL 3655830, at *8 (S.D.N.Y. Aug.27, 2012)
(citing Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.1985)
(per curiam)).
Here, Plaintiff's sole allegation in the Amended Complaint
regarding Kelly asserts that he “operated” and “controlled
the safety of” the Brooklyn County Court's Central Booking
Detention Holding Facility “through his supervisors, agents,
servants, officers, and employees.” Am. Compl. 3. In
his original complaint, Plaintiff additionally alleges that
Kelly failed to exercise ordinary care because the practice
of permitting overcrowded holding cells in the Brooklyn
Detention Center created a foreseeable risk that pretrial
detainees would be attacked, and that Kelly was “grossly
negligent” in failing to protect Plaintiff. Compl. ¶ 23. 5
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5 Given Plaintiff's status as a pro se litigant, “it
is appropriate for the court to consider materials
outside of the complaint.” Donhauser v. Goord,
314 F.Supp.2d 119, 121 (N.D.N.Y.2004) (quotation
marks omitted) (collecting district court cases);
see also Gill v. Mooney, 824 F.2d 192, 195
(2d Cir.1987) (considering allegations in pro se
plaintiff's opposition to motion to dismiss).
*4 Nevertheless, even construing the allegations in the light
most favorable to him, the Court finds that Plaintiff fails
to adequately allege Kelly's personal involvement. As in
Colon, Plaintiff claims that Kelly was grossly negligent in
failing to train or supervise his subordinates, but fails to
set forth facts about Kelly within his own knowledge; his
allegations “certainly contain[ ] nothing that would support
a claim that [Kelly] either knew or should have known of
the events of which [Plaintiff complains.” 58 F.3d at 873–
74. Indeed, “[a]side from the entirely conclusory allegation”
that Kelly may have been “aware of and acquiesced to the
unlawful practices,” Plaintiff “offers no factual allegations
against [Kelly], assuming, erroneously, that his mere status
as DOCS Commissioner is enough to sustain this claim.”
Collins v. Goord, 438 F.Supp.2d 399, 420 (S.D.N.Y.2006).
It is not. Because Plaintiff merely seeks to hold Kelly liable
based on his supervisory capacity or place within the chain
of command, his allegations thus merit dismissal. See Gill
v. Mooney, 824 F.2d 192, 196 (2d Cir.1987) (approving
dismissal of § 1983 claim where “plaintiff does no more than
allege that [defendant] was in charge of the prison.”) (internal
quotation marks omitted). The Court therefore GRANTS
Defendants' motion to dismiss with respect to Plaintiff's
claims against Kelly.
C. Plaintiff's Eighth Amendment Claim for Deliberate
Indifference to Safety
Defendants also argue that Plaintiff fails to state a claim
against Sexton for deliberate indifference to his safety. Defs.'
Mem. 3–7. To state a claim under § 1983, a plaintiff must
allege “that the conduct complained of was committed by
a person or entity acting under color of state law, and
that the conduct deprived a person of rights, privileges, or
immunities secured by the Constitution.” Newton v. City of
New York, 566 F.Supp.2d 256, 270 (S.D.N.Y.2008) (citing
Palmieri v. Lynch, 392 F.3d 73, 78 (2d Cir.2004)). As opposed
to deliberate indifference claims brought by post-conviction
prisoners—which arise under the Eighth Amendment—
claims for deliberate indifference brought by state pretrial
detainees arise under the Fourteenth Amendment. See
Caiozzo v. Koreman, 581 F.3d 63, 69–72 (2d Cir.2009).
However, this Circuit has found that “[c]laims for deliberate
indifference ... should be analyzed under the same standard
irrespective of whether they are brought under the Eighth
or Fourteenth Amendment.” Id. at 72; see also Coronado v.
Goord, No. 99 Civ. 1674(RWS), 2000 WL 1372834, at *7
(S.D.N.Y. Sept.25, 2000) (stating that the standard for bring a
Fourteenth Amendment claim is the same as under the Eighth
Amendment). Accordingly, the Eighth Amendment provides
the applicable framework here. Caiozzo, 581 F.3d at 72.
The Eighth Amendment requires that prison officials take
“reasonable measure to guarantee the safety of inmates in
their custody.” Hayes v. New York City Dep't of Corrections,
84 F.3d 614, 620 (2d Cir.1996); see also Gilmore v. Rivera,
13 CIV. 6955 RWS, No. 13 Civ. 6955, 2014 WL 1998227,
at *2 (S.D.N.Y. May 14, 2014) (“Prison officials may neither
deprive a prisoner of ‘basic human needs, e.g., food, clothing,
shelter, medical care, and reasonable safety,’ nor expose an
inmate to conditions that ‘pose an unreasonable risk of serious
damage to his future health.’ “ (citations omitted)).
*5 Accordingly, a prison official's failure to protect a
prisoner from harm may form the basis of a § 1983 claim.
Farmer v. Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970, 128
L.Ed.2d 811 (1994). “[P]rison officials have a duty to protect
prisoners from violence at the hands of other prisoners.” Id.
However, negligence is not sufficient in itself to allege a §
1983 claim. Hayes, 84 F.3d at 620; Morales v. New York
State Dep't of Corrections, 842 F.2d 27, 30 (2d Cir.1988). A
prison official may have a duty to protect an inmate when
two requirements are satisfied: “First, the deprivations [of
rights] alleged must be, objectively, ‘sufficiently serious' ...
and [second] a deliberate indifference to inmate health or
safety.” Farmer, 511 U.S. at 834 (citations omitted); accord
Coronado, 2000 WL 1372834, at *3. Therefore, in order for
a plaintiff to allege a constitutional deprivation of his Eighth
Amendment rights on the basis of a failure to protect, he must
show that a prison official acted unreasonably when aware
of a “significant risk of serious injury.” Jones v. Goord, 435
F.Supp.2d 221, 235–36 (S.D.N.Y.2006) (quoting Heisler v.
Kralik, 981 F.Supp. 830, 837 (S.D.N.Y.1997)).
The analysis under the Eighth Amendment requires courts
to apply a two prong test. First, under the objective prong,
the alleged deprivation must be “sufficiently serious.” Jones,
435 F.Supp.2d at 234–35 (citing Farmer, 511 U.S. at 834). A
plaintiff must, therefore, allege facts that amount to a denial of
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“the minimal civilized measure of life's necessities.” Wilson
v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d
271 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337, 347,
101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). Second, under the
subjective prong, a plaintiff must demonstrate that the charged
defendants acted with a “sufficiently culpable state of mind.”
Jones, 435 F.Supp.2d at 235 (citing Helling v. McKinney, 509
U.S. 25, 33, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)). The
required state of mind is “deliberate indifference.” Wilson,
501 U.S. at 303. Accordingly, to state a claim, a plaintiff
must allege facts showing that a defendant knew of and
disregarded an “excessive risk of inmate health and safety”
or that he was aware of facts from which it could reasonably
be inferred that a substantial risk of serious harm existed.
Farmer, 511 U.S. at 837; Caiozzo, 581 F.3d at 71. “Evidence
that a risk was ‘obvious or otherwise must have been known
to a defendant’ may be sufficient for a fact finder to conclude
that the defendant was actually aware of the risk.” Walker, 717
F.3d at 125 (citation omitted).
With respect to the objective element, conditions that place
a prisoner at a “substantial risk of serious harm” from
other inmates may constitute cruel and unusual punishment.
Walker, 717 F.3d at 128 (citing Jones, 435 F.Supp.2d at 238).
Generally, “[i]n assessing whether the risk of an inmate's
violence against other inmates is ‘sufficiently serious,’ to
trigger constitutional protection, the focus of inquiry must
be, not the extent of the physical injuries sustained in an
attack, but rather the existence of a ‘substantial risk of serious
harm.’ “ Heisler, 981 F.Supp. at 837 (S.D.N.Y.1997) (quoting
Wilson, 501 U.S. at 298), aff'd, 164 F.3d 618 (2d Cir.1998).
The Defendants assert that courts may find a substantial risk
of serious harm only where there is “evidence of a previous
altercation between a plaintiff and their attacker, coupled
with a complaint by plaintiff regarding the altercation or a
request by plaintiff to be separated from the attacker.” Defs.'
Mem. 5. In Heisler, however, the court determined that a
substantial risk of serious harm may exist in the absence of
any allegation of a history of altercations between the plaintiff
and his attacker. 981 F.Supp. at 837. There, in deciding
a motion for summary judgment, the court found that the
plaintiff's allegations raised a genuine issue of material fact
where the plaintiff alleged that another inmate attacked him
while he was being held as a pretrial detainee, and that officers
witnessed the assault, but failed to intercede to stop it. Id.
So too here, Plaintiff's allegations raise a factual question as
to whether a “substantial risk of serious harm” existed based
upon the alleged conditions of overcrowding and a “den of
violence.” Id.; see also Walker, 717 F.3d at 128–29.
*6 Under the subjective prong, “a prison official acts with
deliberate indifference and thus ‘has sufficient culpable intent
if he has knowledge that an inmate faces a substantial risk
of serious harm and he disregards that risk by failing to
take reasonable measure to abate the harm.’ “ See Lee v.
Artuz, No. 96 Civ. 8604(JGK), 2000 WL 231083, at *4
(S.D.N.Y. Feb.29, 2000) (quoting Hayes, 84 F.3d at 620).
Plaintiff alleges that Sexton “failed to exercise adequate care
for the Plaintiff's safety and to prevent further reasonably
foreseeable physical harm, abuse, and violence.” Am. Compl.
4. Allegedly, after Sexton arrived at the assault, he stood
outside the cell and ordered the inmates to stop. Id. When
they continued, he left to get help and did not come back
for “about five minutes.” Id. Sexton returned with two other
officers, who stopped the assault. Id. From these allegations,
even though Sexton returned to the holding cell, Plaintiff
sufficiently alleges that he had knowledge of the “substantial
risk of serious harm” in that Sexton actually witnessed the
assault at the hands of two other detainees. Therefore, the
question becomes whether Sexton's response to Plaintiff's
assault was reasonable. The fact intensive nature of this
question cannot be decided on a motion to dismiss. See
Braxton v. Nichols, No. 08 Civ. 08568(PGG), 2010 WL
1010001, at *5 (S.D.N.Y. Mar.18, 2010); see also Rosen v.
City of New York, 667 F.Supp.2d 355, 360–61 (S.D.N.Y.2009)
(finding that the question of whether a prison supervisor had
a reasonable opportunity to intervene was an “issue of fact for
the jury”) (quoting Pearson v. Correction Officer Principe,
No. 97 Civ. 3746(HB), 1999 WL 66521, at *1 (S.D.N.Y.
Feb.9, 1999)).
Defendants argue that the Court should focus on whether
Plaintiff has shown “evidence that [the defendant] could
have prevented the attack or injury,” rather than on
the reasonableness of Sexton's response. Defs.' Mem. 7
(quoting Avincola v. Maldonado, No. 04–3529–PR, 2005
WL 3116760, at *1 (2d Cir. Nov.22, 2005) (summary
order)). However, the cases cited by Defendants involve
evidence adduced by the parties at the summary judgment
stage, whereas here, the record is insufficient to allow the
Court to make a comparable determination. See Walker, 717
F.3d at 129 (reversing district court's dismissal of pro se
complaint concerning deliberate indifference to inmate safety
and finding, inter alia, that the cases cited by defendants
could be distinguished because they “were decided after
development of the factual record”).
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Accordingly, the Court DENIES Defendants' motion to
dismiss Plaintiff's claim against Sexton for deliberate
indifference to his safety.
III. Conclusion
For the reasons set forth above,
(1) Defendants' motion to dismiss is GRANTED as to all
claims against Defendant Kelly;
(2) Defendants' motion to dismiss is DENIED as to
Plaintiff's claims against Defendant Sexton; specifically,
the Court finds that Plaintiff has adequately stated a
Section 1983 claim against Sexton based on his alleged
failure to protect Plaintiff.
*7 The Clerk of Court is respectfully directed to terminate
Kelly as a Defendant in this case, to mail a copy of this
Opinion and Order to Plaintiff, and to terminate the motion
(Doc. 33). The parties are further directed to appear before the
Court for a conference on September 17, 2014 at 9:30 a.m.
It is SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 4230889
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Blake v. Kelly
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 1:12cv07245
BLAKE v. SEXTON
— S.D.N.Y. Sep. 24, 2012 Docket
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Blake v. Kelly
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History (2)
Direct History (1)
1. Blake v. Kelly
2014 WL 4230889 , S.D.N.Y. , Aug. 26, 2014
Related References (1)
2. Blake v. Israel Sexton, Sergeant, New York City Police Department
2016 WL 1241525 , S.D.N.Y. , Mar. 24, 2016
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Luckey v. Jonas, Not Reported in Fed. Supp. (2019)
2019 WL 4194297
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2019 WL 4194297
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Jeremiah LUCKEY, Plaintiff,
v.
Captain JONAS, et al., Defendants.
18 Civ. 8103 (AT) (KNF)
|
Signed 09/04/2019
Attorneys and Law Firms
Jeremiah Luckey, Rome, NY, pro se.
John Raymond Mechmann, III, New York City Law
Department, New York, NY, for Defendants.
ORDER
ANALISA TORRES, District Judge:
*1 Plaintiff pro se, Jeremiah Luckey, brings this action under
42 U.S.C. § 1983, alleging that during his detention at the
Manhattan Detention Complex (“MDC”) various employees
of the New York City Department of Correction (“DOC”),
including DOC Captain Jonas, Correction Officers (“COs”)
Yarygin, Simon, Simpson, Lisichkin, and Joseph violated his
constitutional rights. Compl., ECF No. 2. Construed liberally,
Plaintiff claims that Defendants (1) failed to protect Plaintiff
from an inmate attack; (2) and failed to protect him from
slipping on spilled water, each in violation of Plaintiff's
Fourteenth Amendment rights. Defendants move to dismiss
the complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). ECF No. 15. 1 For the reasons stated below, the
motion is GRANTED in part and DENIED in part.
1 Lisichkin and Joseph did not initially join the
motion to dismiss because they had not yet been
served. Def. Mem. at 6 n.1, ECF No. 18. On March
7, 2019, the DOC executed a waiver of service on
behalf of both Defendants. ECF No. 20. On March
25, 2019, the Court granted Defendants' request
to have the motion apply equally to Lisichkin and
Joseph. ECF No. 22.
BACKGROUND
The following facts are taken from Plaintiff's complaint,
which the Court accepts as true for the purposes of this
motion. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493
F.3d 87, 98 (2d Cir. 2007). On July 9, 2019, while housed
at MDC, Plaintiff “slipped and fell due to water that wasn't
cleaned up” while being escorted within the facility. Compl.
at 4. There were no “wet floor signs” posted. Id. Plaintiff was
injured during the fall in part because his legs and hands were
shackled. Id.
After falling, Plaintiff remained on the floor for an hour and
a half until the Emergency Medical Technicians (“EMTs”)
put him on a stretcher. Id. During that time, other inmates
hit him with objects and splashed him with “an unknown
substance which made [his] eyes go blurry.” Id. Defendants
did nothing to stop the other inmates' behavior, which Plaintiff
characterizes as “assault[ ].” Id.
Plaintiff's lower back, ankles, and wrists “still bother [him]”
and his “eyesight hasn't been the same.” Id. at 5. He “received
a neck brace.” Id. The incident put him under “extreme
emotional and mental distress.” Id.
DISCUSSION
I. Legal Standard
To survive a Rule 12(b)(6) motion to dismiss, “a complaint
must contain sufficient factual matter ... to ‘state a claim to
relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). The court must accept the allegations
in the complaint as true and draw all reasonable inferences in
favor of the non-movant. See ATSI Commc'ns, Inc. v. Shaar
Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). A plaintiff is not
required to provide “detailed factual allegations,” but must
assert “more than labels and conclusions.” Twombly, 550 U.S.
at 555. Ultimately, the “[f]actual allegations must be enough
to raise a right to relief above the speculative level.” Id.
*2 Pro se plaintiffs receive special solicitude from
courts. Courts must “liberally construe pleadings and briefs
submitted by pro se litigants, reading such submissions to
raise the strongest arguments they suggest.” Bertin v. United
States, 478 F.3d 489, 491 (2d Cir. 2007) (internal quotation
marks and citations omitted). That said, pleadings cannot
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survive by making “naked assertions devoid of further factual
enhancement,” and a court is not “bound to accept as true a
legal conclusion couched as a factual allegation.” Iqbal, 556
U.S. at 678 (internal quotation marks and citation omitted). A
court should reject “threadbare recitals” of the elements of a
cause of action “supported by mere conclusory statements,”
Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010), and
“bald assertions” unsupported by details which are sufficient
to meet the minimum pleading requirements for a cause of
action, Lawtone-Bowles v. N.Y.C. Hous. Auth., No. 13 Civ.
1434, 2014 WL 705272, at *2–3 (S.D.N.Y. Feb. 20, 2014).
Finally, although Plaintiff failed to oppose Defendants'
motion to dismiss, “failure to oppose a 12(b)(6) motion cannot
itself justify dismissal of a complaint.” Haas v. Commerce
Bank, 497 F. Supp. 2d 563, 564 (S.D.N.Y. July 30, 2007). “
‘[T]he sufficiency of a complaint is a matter of law that the
court is capable of determining based on its own reading of the
pleading and knowledge of the law.’ ” Gregory v. Ricigliano,
No. 12 Civ. 4372, 2014 WL 119475, at *5 (E.D.N.Y. Jan.
10, 2014) (quoting Goldberg v. Danaher, 599 F.3d 181,
184 (2d Cir. 2010)). The Court, therefore, “must assume
the truth of a pleading's factual allegations and test only its
legal sufficiency.” Id. (internal quotation marks and citation
omitted).
II. Analysis
Construed liberally, Plaintiff claims that Defendants violated
his Fourteenth Amendment rights by their (1) deliberate
indifference to unconstitutional conditions of confinement,
and (2) failure to protect him from an inmate-on-inmate
attack.
A. Conditions of Confinement
“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 Eight[h] Amendment.” Darnell v.
Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). 2 This is because
pretrial detainees “have not been convicted of a crime and
thus may not be punished in any manner—neither cruelly and
unusually nor otherwise.” Id. (internal quotation marks and
citation omitted).
2 As of September 5, 2018, when Plaintiff filed
his complaint, he indicated that he was a pretrial
detainee. Compl. at 2. Defendants' motion also
treats Plaintiff as a pretrial detainee. Def. Mem. at
9. For purposes of this motion, the Court assumes
that Plaintiff was a pretrial detainee at all relevant
times. See Holland v. City of N.Y., 197 F. Supp. 3d
529, 538 n.5 (S.D.N.Y. 2016).
To establish a claim for deliberate indifference to
unconstitutional conditions of confinement, a pretrial
detainee must show that “the officers acted with deliberate
indifference to the challenged conditions.” Id. This means that
a pretrial detainee must satisfy two prongs to state a claim:
an “objective prong” showing that
the challenged conditions were
sufficiently serious to constitute
objective deprivations of the right
to due process, and a “subjective
prong”—perhaps better classified as a
“mens rea prong” or “mental element
prong”—showing that the officer acted
with at least deliberate indifference to
the challenged conditions.
Id. The “mens rea prong” is defined objectively: “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.” Id. at
35. Negligence is not enough. Id. at 36.
*3 Courts in this Circuit have routinely held that “allegations
of wet floor conditions that cause a prisoner to slip and fall,
standing alone, do not satisfy the first prong of a conditions
of confinement claim.” Lopez v. Phipps, No. 18 Civ. 3605,
2019 WL 2504097, at *8 (E.D.N.Y. June 17, 2019) (collecting
cases); Strange v. Westchester Dep't of Corrs., No. 17 Civ.
9968, 2018 WL 3910829, at *3 (S.D.N.Y. Aug. 14, 2018)
(“District courts in this Circuit have repeatedly held that,
standing alone, a claim that a prisoner fell on a slippery
floor and injured himself fails to satisfy the first prong of a
conditions-of-confinement claim.”).
Plaintiff's allegations also fail to satisfy the second prong
because he does not allege any facts indicating that
Defendants acted intentionally or recklessly. Darnell, 849
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F.3d at 35; Strange, 2018 WL 3910829, at *3 (plaintiff
failed to satisfy second prong when his allegations did not
demonstrate that officers acted intentionally or recklessly).
He does not plead any facts indicating that Defendants
had prior knowledge of the wet floor such that the Court
could reasonable infer that Defendants acted intentionally or
recklessly.
Because Plaintiff fails to allege facts satisfying either prong of
a deliberate indifference to conditions of confinement claim,
Defendants' motion to dismiss the claim is GRANTED. 3
3 Because the Court finds that the complaint fails
to state a conditions of confinement claim against
any Defendant, it does not reach Defendants'
alternative argument that they are entitled to
qualified immunity. See Peterson v. Tomaselli, No.
02 Civ. 6325, 2003 WL 22213125, at *8 (S.D.N.Y.
Sept. 29, 2003); Lee v. Coughlin, No. 93 Civ. 8952,
1997 WL 193179, at *4 (S.D.N.Y. Apr. 18, 1997).
B. Failure to Protect
The Constitution imposes a duty on prison officials to “take
reasonable measures to guarantee the safety of the inmates.”
Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal
quotation marks and citation omitted). “In particular, a prison
official has a duty to protect prisoners from violence from
other prisoners.” Nunez v. Goord, 172 F. Supp. 2d 417,
430 (S.D.N.Y. 2001). However, not “every injury suffered
by one prisoner at the hands of another ... translates into
constitutional liability for prison officials responsible for the
victim's safety.” Farmer, 511 U.S. at 834. A prison official's
failure to protect is a Fourteenth Amendment violation only
“where the officer acted with ‘deliberate indifference to a
substantial risk of serious harm to an inmate.’ ” Rosen v. City
of N.Y., 667 F. Supp. 2d 355, 360–61 (S.D.N.Y. 2009) (quoting
Farmer, 511 U.S. at 828).
The two-pronged framework for claims of deliberate
indifference set forth in Darnell “applies with equal measure
to failure to protect claims.” Taylor v. City of N.Y., No. 16
Civ. 7857, 2018 WL 1737626, at *12 (S.D.N.Y. Mar. 27,
2018). A plaintiff must therefore show “(1) that the failure
to intervene or protect the inmate was sufficiently serious
such that it caused an unquestioned and serious deprivation
of basic human needs and (2) that the defendant acted with
a sufficiently culpable state of mind.” Corley v. City of N.Y.,
No. 14 Civ. 3202, 2017 WL 4357662, at *12 (S.D.N.Y. Sept.
28, 2017) (internal quotation marks and citation omitted). The
second prong is measured by an objective standard: whether
a defendant “knew, or should have known” that his or her
conduct “posed an excessive risk to health or safety.” Darnell,
849 F.3d at 33, 35.
*4 Beginning with the first prong, “[t]here 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.” Darnell, 849 F.3d
at 30 (internal quotation marks and citation omitted). “The
failure of a correction officer to ... intervene in an attack ...
may under certain circumstances create a condition which
poses a substantial risk of serious harm thus constituting
a sufficiently serious constitutional violation.” Molina v.
Cty. of Westchester, No. 16 Civ. 3421, 2017 WL 1609021,
at *3 (S.D.N.Y. Apr. 28, 2017). “[I]n assessing whether
the risk of an inmate's violence against other inmates is
sufficiently serious, to trigger constitutional protection, the
focus of inquiry must be, not the extent of the physical
injuries sustained in an attack, but rather the existence of a
substantial risk of serious harm.” Blake v. Kelly, No. 12 Civ.
7245, 2014 WL 4230889, at *5 (S.D.N.Y. Aug. 26, 2014)
(internal quotation marks and citation omitted). Although
“[a] substantial risk of serious harm can be demonstrated
where there is evidence of a previous altercation between
a plaintiff and an attacker, coupled with a complaint by
plaintiff regarding the altercation or a request by plaintiff to be
separated from the attacker,” Gilmore v. Rivera, No. 13 Civ.
6955, 2014 WL 1998227, at *3 (S.D.N.Y. May 14, 2014), it
can exist even “in the absence of any allegation of a history of
altercations between plaintiff and his attacker,” Blake, 2014
WL 4230889, at *5.
Here Plaintiff alleges that he was “hit with objects and
splashed with an unknown substance which made his eyes
go blurry” for “about an hour and a half” until the EMTs
arrived. Compl. at 4. He further alleges that his “eyesight
hasn't been the same” ever since. Id. at 5. He does not
plead any facts indicating that there were prior altercations
between him and his alleged attackers. The Court, however,
finds this immaterial given the extended duration of the
attack. Construing the complaint liberally, and drawing all
reasonable inferences in Plaintiff's favor, the Court finds
that Plaintiff has plausibly alleged that Defendants' actions
may have put Plaintiff at risk of serious harm. Allowing
Plaintiff to be “hit with objects and splashed with an unknown
substance,” Compl. at 4, for over an hour and a half as he
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lay on the ground injured, waiting for an EMT to arrive,
does not comport with “contemporary standards of decency.”
Moreover, this led to an impairment in Plaintiff's vision.
In reaching this conclusion, the Court is cognizant that
Plaintiff's injuries from the slip and fall were serious enough
to necessitate EMTs and the use of a stretcher.
Defendants argue that Plaintiff has failed to meet the second
prong because “there are no facts upon which this Court could
plausibly infer that defendants were previously aware of any
risk of attack by other inmates” and courts have “recognized
that a defendant correction officer cannot be liable for a
surprise attack.” Def. Mem. at 13–14. A “surprise attack,”
however, is only a surprise for so long: Plaintiff alleges that he
was on the floor being “assaulted” for an hour and a half while
the Defendants “did nothing to stop” the attack. Compl. at 4.
The “surprise attacks” in the cases Defendants cite involve
situations where the defendants (1) had no prior knowledge
to suggest an attack was coming, and (2) were not present for
the attack or the attack was so short that there was no time to
intervene. See Franzese v. City of N.Y., No. 17 Civ. 3020, 2018
WL 5924354, at *3 (S.D.N.Y. Nov. 13, 2018) (subjective
prong was not met when defendant had no reason to know
that the plaintiff's safety was at risk and it was “not plausible
that [the d]efendant would have been able to intervene and
prevent the [30 second] attack”); Parris v. N.Y. State Dep't
of Corr. Servs., 947 F. Supp. 2d 354, 358 (S.D.N.Y. 2013)
(correctional officers did not notice the assault for several
minutes); Fernandez v. N.Y.C. Dep't of Corr., No. 08 Civ.
4294, 2010 WL 1222017, at *1 (S.D.N.Y. Mar 29, 2010)
(alleging that no officers were monitoring the area when the
assault occurred and separated the two inmates when they saw
the altercation).
*5 Although Defendants might not have had prior
knowledge that the attack was going to occur, once it began,
their failure to stop it for over an hour is sufficient for Plaintiff
to adequately allege the second prong. 4 See Taylor, 2018
WL 1737626 at *12 (“Likewise, plaintiff here has stated a
claim for deliberate indifference to safety against [defendant],
who witnessed the attack on plaintiff and allegedly failed to
take action to prevent it.”). Plaintiff, therefore, has alleged
sufficient facts to satisfy the second prong.
4 Defendants argue that “there are no facts
suggesting that defendants could see the inmates
throwing liquid and objects, such that they had a
reasonable opportunity to intervene.” Def. Mem.
at 14. The Court disagrees. Plaintiff alleges that
the “assault” took place after he fell while being
transported by “the northmax captain and 2 other
correctional officers.” Compl. at 4. Accordingly,
making all reasonable inferences in Plaintiff's
favor, the facts suggest that those individuals were
present for the attack.
C. Qualified Immunity
“Under 42 U.S.C. § 1983, a public official is entitled
to qualified immunity if her acts did not violate clearly
established rights of which a reasonable officer would have
known, or if she reasonably believed that her conduct did
not violate those rights.” Desulma v. City of N.Y., No. 98
Civ. 2078, 2001 WL 798002, at *8 (S.D.N.Y. July 6, 2001).
Defendants acknowledge that “[i]t is clearly established that
inmates have the right to be free from harm inflicted by fellow
prisoners and that corrections officers have an obligation to
protect inmates from a known and substantial risk of serious
harm,” Def. Mem. at 18 (citing Dublin v. N.Y.C. Law Dept.,
No. 10 Civ. 2971, 2012 WL 4471306, at *7 (S.D.N.Y. Sept.
26, 2012)), but contend that they are entitled to qualified
immunity on Plaintiff's failure to protect claim because there
is no clearly established right to be free from harm inflicted by
a “surprise attack.” Def. Mem. at 18. However, as discussed
above, due to the prolonged nature of this attack, it cannot
properly be deemed a surprise attack. Defendants, therefore,
are not entitled to qualified immunity on that ground.
D. Potential State Law Claims
Construed liberally, Plaintiff also asserts negligence-based
claims arising out of the slip and fall and the inmate assault.
Defendant moves to dismiss the negligence claim “premised
upon defendants' purported failure to clean up water on the
floor.” Def. Mem. at 20.
“Under New York law, which applies to this case, a plaintiff
must establish three elements to prevail on a negligence claim:
(1) the existence of a duty on defendant's part as to plaintiff;
(2) a breach of this duty; and (3) injury to the plaintiff as
a result thereof.” Alfaro v. Wal-Mart Stores, Inc., 210 F.3d
111, 114 (2d Cir. 2000) (internal quotation marks and citation
omitted). “[T]he State owes a duty of care to inmates for
foreseeable risks of harm.” Sanchez v. State of New York, 99
N.Y.2d 247, 255 (N.Y. 2002). “[F]oreseeability is defined not
simply by actual notice but by actual or constructive notice.”
Id. (italics omitted). In other words, what Defendants “knew
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or had reason to know” or what they “[are] or should be aware
of.” Id. Defendants argue that Plaintiff has failed to allege that
the wet floor was a foreseeable risk. Def. Mem. at 20. The
Court agrees. As previously discussed, Plaintiff has failed to
allege any facts demonstrating that Defendants had any prior
knowledge of the wet floor, or that they should have. 5
5 Defendants do not move to dismiss Plaintiff's claim
for negligent supervision arising out of the inmate
attack. See generally Def. Mem. Accordingly, the
Court does not address the issue.
CONCLUSION
*6 For the reasons stated above, Defendants' motion to
dismiss is GRANTED in part and DENIED in part. Plaintiff
may proceed on his claims for failure to intervene under
42 U.S.C. § 1983 and negligent supervision under state law
arising from the inmate attack.
Plaintiff is warned that failure to respond to Court orders may
result in dismissal for failure to prosecute under Federal Rule
of Civil Procedure 41(b).
The Clerk of the Court is directed to terminate the motion
at ECF No. 15 and to mail a copy of this order and all
unpublished cases cited herein to Plaintiff pro se.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 4194297
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Luckey v. Jonas
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Luckey v. Jonas et al
— S.D.N.Y. Sep. 05, 2018 Docket
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Luckey v. Jonas
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Luckey v. Jonas
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Wilson v. Campbell, Not Reported in F.Supp.2d (2008)
2008 WL 902187
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2008 WL 902187
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Pernell WILSON, Plaintiff,
v.
James CAMPBELL, Sheriff of Albany County,
and Thomas Wigger, Superintendent, Defendants.
No. 06-cv-0175 (GLS-RFT).
|
March 31, 2008.
Attorneys and Law Firms
Pernell Wilson, Staten Island, NY, pro se.
Roche, Corrigan Law Firm, Robert P. Roche, Esq., of
Counsel, Albany, NY, for the Defendants.
DECISION AND ORDER
GARY L. SHARPE, District Judge.
*1 The above-captioned matter comes to this court
following a Report-Recommendation and Order (“R & R”)
by Magistrate Judge Randolph F. Treece, filed February
11, 2008. (Dkt. No. 73.) The R & R recommended that
defendants' motion for summary judgment be granted.
Plaintiff Pernell Wilson has filed no timely objections to the R
& R; instead, he requests permission to amend his Complaint.
(See Dkt. No. 74.) Wilson's request is denied. The Scheduling
Order in this case required that any request to amend a party's
pleadings be made no later than October 31, 2006. (See Dkt.
No. 16.) Moreover, the court will not consider an argument
raised for the first time in response to an R & R. Any request
to amend could, and should, have been made earlier in these
proceedings, prior to the expenditure of the parties' and the
court's resources.
Accordingly, no objections having been filed, and the court
having reviewed the R & R for clear error, it is hereby
ORDERED that Wilson's request to amend his Complaint is
DENIED; and it is further
ORDERED that the Report-Recommendation and Order of
Magistrate Judge Randolph F. Treece filed February 11, 2008
is accepted in its entirety for the reasons stated therein; and
it is further
ORDERED that defendants' motion for summary judgment
is GRANTED and Wilson's Complaint is dismissed; and it is
further
ORDERED that the Clerk enter judgment in favor of the
defendants and close the case; and it is further
ORDERED that the Clerk provide copies of this Decision
and Order to the parties.
IT IS SO ORDERED.
REPORT-RECOMMENDATION and ORDER
RANDOLPH F. TREECE, United States Magistrate Judge.
Pro se Plaintiff Pernell Wilson brings this civil rights action
pursuant to 42 U.S.C. § 1983 alleging that Defendants
Campbell and Wigger failed to protect him while he was
incarcerated as a pre-trial detainee at the Albany County
Correctional Facility in violation of the Eighth Amendment.
Dkt. No. 1, Compl. Plaintiff further alleges that several
individuals conspired to have him released from a Special
Housing Unit (SHU) into the general population so that
other inmates would have an opportunity to assault him. Id.
Defendants now move for Summary Judgment (Dkt. No. 56),
which Plaintiff opposes, (Dkt. No. 61). For the reasons that
follow, it is recommended that the Defendants' Motion for
Summary Judgment be granted.
I. BACKGROUND
On August 24, 2005, Plaintiff, who was incarcerated in the
Albany County Correctional Facility (Albany County) while
awaiting trial, was placed in the SHU for disciplinary reasons.
Dkt. No. 67, Defs.' Rule 7.1 Statement of Material Facts at
¶ 1. 1 After serving a portion of his time in SHU, Plaintiff's
disciplinary sentence was modified on October 3, 2005, by
Chief Corrections Officer Mark Kramek 2 as a reward for
Wilson's behavior modification. Defs.' 7.1 Statement at ¶ 6.
On or about November 28, 2005, Plaintiff filed an Inmate
Grievance stating that Corrections Officer (C.O.) Stewart 3
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had threatened to kill him, and requesting to be removed
from Albany County because he feared for his life. Compl.,
Ex. A, Inmate Grievance Form, dated Nov. 28, 2005. That
Grievance was denied by Grievance Coordinator Courcelle, 4
as were his appeals to the Chief Administrative Officer and
the Citizens Policy and Complaint Review Council. Id. at
p. 2; Compl., Ex. C, Lt. from State Commission of Corr.,
dated Jan. 5, 2006. The basis for the denials was that an
investigation into the matter revealed no evidence that C.O.
Stewart threatened Plaintiff, nor that Plaintiff's safety was
otherwise in danger. Compl., Ex. A, Inmate Grievance Form,
dated Nov. 28, 2005 & Decision of the Chief Admin. Officer,
Dated Dec. 1, 2005.
1 When the Plaintiff has not objected to a particular
statement of fact proffered in the Defendants'
7.1 Statement, or visa versa, we will not cite to
both 7.1 Statements. See N.D.N.Y.L.R. 7.1(a)(3)
(“Any facts set forth in the Statement of Material
Facts shall be deemed admitted unless specifically
controverted by the opposing party.” ) (emphasis
in original).
2 Mark Kramek is not a named Defendant in this
action.
3 C.O. Stewart is not a named Defendant in this
action.
4 Grievance Coordinator Courcelle is not a named
Defendant in this action.
*2 Plaintiff asserts that on November 21, 2005, he filed a
Complaint to Defendant Superintendent Wigger stating that
he feared his life was in danger because C.O. Stewart had
called him a rapist in front of other inmates. Compl. at p.
10. Plaintiff further alleges that a family member, Ms. Cleo
Childs, called Defendant Sheriff Campbell explaining that
Plaintiff's life was in danger and requesting that he move
Plaintiff to another facility. 5 Id. at p. 11. Plaintiff does not
indicate, and the record does not reflect, that any of these
complaints warned the Defendants that Plaintiff's release from
SHU into the general prison population would put his safety
in danger.
5 Plaintiff does not state when this alleged call was
made.
As his disciplinary sentence had been reduced, Plaintiff was
moved from SHU to the 3-East Housing Unit on December 8,
2005. Dkt. No. 70, Pl.'s Resp. to Defs.' 7.1 Statement, Ex. B,
Discharge Form, dated Dec. 8, 2005. The next day Plaintiff
was assaulted by two inmates outside of his cell who broke
his jaw and caused Plaintiff to be hospitalized for two days.
Dkt. No. 70, Ex. A, Incident Rep., dated Dec. 9, 2005; Defs.'
7.1 Statement at ¶ 7. The two inmates who assaulted Plaintiff
were charged, prosecuted, and punished for their crime. Defs.'
7.1 Statement at ¶ 8.
Plaintiff asserts Defendants Wigger and Campbell failed to
protect him and thus violated their duty of care. Id.
II. DISCUSSION
A. Summary Judgment Standard
Pursuant to FED. R. CIV. P. 56(c), summary judgment is
appropriate only where “there is no genuine issue as to
any material fact and ... the moving party is entitled to
judgment as a matter of law.” The moving party bears
the burden to demonstrate through “pleadings, depositions,
answers to interrogatories, and admissions on file, together
with affidavits, if any,” that there is no genuine issue of
material fact. F.D.I. C. v. Giammettei, 34 F.3d 51, 54 (2d
Cir.1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)). “When a party has moved for summary judgment on
the basis of asserted facts supported as required by [Federal
Rule of Civil Procedure 56(e) ] and has, in accordance with
local court rules, served a concise statement of the material
facts as to which it contends there exist no genuine issues to
be tried, those facts will be deemed admitted unless properly
controverted by the nonmoving party.” Glazer v. Formica
Corp., 964 F.2d 149, 154 (2d Cir.1992).
To defeat a motion for summary judgment, the non-movant
must “set forth specific facts showing that there is a genuine
issue for trial,” and cannot rest on “mere allegations or
denials” of the facts submitted by the movant. FED. R. CIV.
P. 56(e); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d
Cir.2003) (“Conclusory allegations or denials are ordinarily
not sufficient to defeat a motion for summary judgment
when the moving party has set out a documentary case.”);
Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d
Cir.1994). To that end, sworn statements are “more than mere
conclusory allegations subject to disregard ... they are specific
and detailed allegations of fact, made under penalty of perjury,
and should be treated as evidence in deciding a summary
judgment motion” and the credibility of such statements is
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better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289
(citing Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995) and
Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983)).
*3 When considering a motion for summary judgment, the
court must resolve all ambiguities and draw all reasonable
inferences in favor of the non-movant. Nora Beverages,
Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d
Cir.1998). “[T]he trial court's task at the summary judgment
motion stage of the litigation is carefully limited to discerning
whether there are any genuine issues of material fact to be
tried, not to deciding them. Its duty, in short, is confined at this
point to issue-finding; it does not extend to issue-resolution.”
Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d
1219, 1224 (2d Cir.1994). Furthermore, where a party is
proceeding pro se, the court must “read [his or her] supporting
papers liberally, and ... interpret them to raise the strongest
arguments that they suggest.” Burgos v. Hopkins, 14 F.3d
787, 790 (2d Cir.1994), accord, Soto v. Walker, 44 F.3d 169,
173 (2d Cir.1995). Nonetheless, mere conclusory allegations,
unsupported by the record, are insufficient to defeat a motion
for summary judgment. See Carey v. Crescenzi, 923 F.2d 18,
21 (2d Cir.1991).
B. Failure to Protect
It appears from Plaintiff's submissions that at all times
relevant to his constitutional claims, he was incarcerated
as a pre-trial detainee at Albany County. Thus, the proper
analysis of Plaintiff's claim is under the Due Process Clause
of the Fourteenth Amendment. Lareau v. Manson, 651 F.2d
96, 102 (2d Cir.1981) (constitutional standard for substantive
rights of pre-trial detainees is Fourteenth Amendment due
process) (cited in Bowman v. Campbell, 850 F.Supp. 144,
147 (N.D.N.Y.1994)); see also Johnson v. Glick, 481 F.2d
1028, 1032 (2d Cir.1973) (Eighth Amendment does not apply
prior to conviction and therefore is not applicable to pre-trial
detainees). Because a person “lawfully committed to pretrial
detention has not been adjudged guilty of any crime,” pre-
trial detainees “may not be punished in any manner-neither
cruelly and unusually nor otherwise.” Benjamin v. Fraser,
343 F.3d 35, 49-50 (2d Cir.2003) (citing Bell v. Wolfish,
441 U.S. 520, 535-36 (1979)). Nonetheless, “[t]he standard
for analyzing a pretrial detainee's Fourteenth Amendment
claim is the same as the Eighth Amendment standard.”
Bourdon v. Roney, 2003 WL 21058177, at *10 (N.D.N.Y.
Mar. 6, 2003) (citing Weyant v. Okst, 101 F.3d 845, 856 (2d
Cir.1996)); see also Walton v. Breeyear, 2007 WL 446010,
at *8 n. 16 (N.D.N.Y. Feb. 8, 2007) (noting that Fourteenth
Amendment protections for pretrial detainees provide parallel
“protection” of those Eighth Amendment protections for
sentenced prisoners). Thus, we will analyze Plaintiff's due
process claim under the Eighth Amendment standard.
Plaintiff asserts that the Defendants should be held liable
because they were warned about the risks to his safety and
failed to act in response. A prison inmate has a constitutional
right under the Eighth and Fourteenth Amendments to be
free from the “unnecessary and wanton infliction of pain.”
Hendricks v. Coughlin, 942 F.2d 109, 112 (2d Cir.1991)
(citation omitted). The Eighth Amendment requires prison
officials to “take reasonable measures to guarantee the safety
of inmates in their custody.” Hayes v. New York City Dep't
of Corr., 84 F.3d 614, 620 (1996); Heisler v. Kralik, 981
F.Supp. 830, 837 (S.D.N.Y.1997) (“[p]rison officials have
a constitutional duty to act reasonably to ensure a safe
environment for a prisoner when they are aware that there is
a significant risk of serious injury to that prisoner.”); see also
Hendricks v. Coughlin, 942 F.2d at 113; Avincola v. New York
State Dep't of Corr. Servs., 1998 WL 146280, at *3 (N.D.N .Y.
Mar. 27, 1998).
*4 In order to state such a claim, the prisoner must
demonstrate that the prison officials “acted with deliberate
indifference with respect to his safety or with an intent to
cause harm to him.” Hendricks v. Coughlin, 942 F.2d at 113.
A showing of mere negligence on behalf of the defendants is
not enough to state a constitutional claim. Whitley v. Albers,
475 U.S. 312, 319 (1986) (cited in Hendricks v. Coughlin, 942
F.2d at 113); Daniels v. Williams, 474 U.S. 327, 328 (1985).
The key element of a failure to protect claim is the existence
or potential existence of a substantial risk of serious harm and
not the actual harm which may or may not ensue. Farmer
v. Brennan, 511 U.S. 825, 836 (1994). To prove deliberate
indifference, the plaintiff must show that the “official knew
of and disregarded an excessive risk to the plaintiff's health
or safety.” Id. at 837 (cited in Ramirez v. Mantello, 1998 WL
146246, at *2 (N.D.N.Y. Mar. 24, 1998). “The official must
both be aware of the facts from which the inference could
be drawn that a substantial risk of serious harm exists and
he must also draw the inference.” Id. at 836 (emphasis in
original).
Further, a supervisor can be held liable when he or she has
actual or constructive notice of unconstitutional practices
but similarly acted with gross negligence or deliberate
indifference in failing to act. See Meriwether v. Coughlin,
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879 F.2d 1037, 1048 (2d Cir.1989). “Such a supervisor may
not escape the consequences of his or her failure to act
by pleading the doctrine of qualified immunity.” Fossett v.
Morris, 1991 WL 67093, at *3 (S.D.N.Y. Apr. 22, 1991).
Based on the record before us, there is no admissible
evidence that either Defendant was aware that Plaintiff faced
a substantial risk of serious harm. Plaintiff asserts he filed
a Complaint with Defendant Wigger stating that he felt his
life was in danger, and that a member of his family called
Defendant Campbell and explained that Plaintiff's life was in
danger and requested that he be moved to another facility.
Compl. at p. 11. Regarding the alleged phone call, such a
statement is hearsay and is therefore non-admissible evidence
which cannot be considered in this Motion for Summary
Judgment. See Bickerstaff v. Vassar College, 196 F.3d 435,
447 (2d Cir.1999) (affirming that even for summary judgment
purposes, evidence must be admissible); Barau v. Credit
Lyonnais-U.S. Branches, 1998 WL 915892, at *4 (S.D.N.Y.
Dec. 30, 1998) (granting summary judgment where “much
of the plaintiff's proffered ‘evidence’ is either inadmissible
hearsay or so conclusory as to fail to satisfy the requirements
of [Federal] Rule [of Civil Procedure] 56(e).”).
Considering now the alleged Complaint sent to Defendant
Wigger, there is no such Complaint on the record apart
from the Inmate Grievance Form submitted by Plaintiff on
November 28, 2005. As discussed above, Plaintiff stated
in the Grievance that C.O. Stewart had threatened him
and he requested to be transferred to another facility. That
Grievance was denied both initially and on appeal. In
response to Plaintiff's safety concerns, the initial denial noted
that Plaintiff was “in a camera cell in the SHU Unit, where
he is watched 24 hours a day.” Compl., Ex. A, Grievance,
dated Nov. 28, 2005. Additionally, an investigation revealed
no evidence that Plaintiff was threatened by C.O. Stewart. Id.
at p. 2, Decision of the Chief Admin. Officer, dated Dec. 1,
2005. Thus, Plaintiff's fears with respect to C.O. Stewart were
investigated and ultimately rejected.
*5 There is no evidence on the record that either named
Defendant was warned that Plaintiff's safety would be in
danger should he be released from SHU. Plaintiff's Grievance
did not indicate any other threat besides C.O. Stewart, nor
did his general request to be moved to another facility put the
Defendants on notice as to any potential threat that existed
in the general prison population. A general, conclusory
statement that an inmate fears for his safety, without more,
is insufficient information from which an inference can been
drawn that such inmate's a safety is actually at risk. See
Arroyo v. Coughlin, 1993 WL 117529, at *1 (W.D.N.Y. Apr.
13, 1993) (“An official demonstrates deliberate indifference
when he has actual or constructive notice of a specific risk
to an inmate's safety and fails to take steps to protect the
inmate from injury.”) (citing Meriwether v. Coughlin, 879
F.2d 1037, 1048 (2d Cir.1989)); see also Sims v. Bowen, 1998
WL 146409, at *3 (N.D.N.Y. Mar. 23, 1998) (stating that “an
inmate must inform a correctional official of the basis for his
belief that another inmate represents a substantial threat to
his safety before the correctional official can be charged with
deliberate indifference”). Thus, because there is no evidence
nor indication that the Defendants were warned about the
potential threat to Plaintiff's safety should he be released into
the general population, Plaintiff has failed to make a valid
constitutional claim. Farmer v. Brennan, 511 U.S. at 837
(plaintiff must show that the “official knew of and disregarded
an excessive risk to the plaintiff's health or safety.”).
Therefore, it is recommended that Defendants' Motion for
Summary Judgment be granted as to Plaintiff's Eighth
Amendment failure to protect claim.
C. Personal Involvement and Supervisory Liability
Plaintiff asserts that C.O. Stewart and Mark Kramek arranged
for Plaintiff to be released from SHU because they knew that
once released, Plaintiff would be assaulted by other inmates
in the general prison population due to the fact that his high
profile rape charge was well known. Compl. at pp. 7-11.
Although the bulk of Plaintiff's Complaint focuses on the
actions of Stewart and Kramek, those individuals are not
named as Defendants in this action. See generally Compl.
Plaintiff does not overtly assert that Defendants Wigger and
Campbell were part of this alleged conspiracy, though he
maintains that they failed to exercise reasonable care in
protecting him. Id. at p. 11.
The Second Circuit has held 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) (citations omitted).
Moreover, “the doctrine of respondeat superior cannot be
applied to section 1983 actions to satisfy the prerequisite of
personal involvement. Therefore, a prison official may not
be found liable for a constitutional violation merely because
of the acts of those under his control.” Kinch v. Artuz, 1997
WL 576038, at *2 (S.D.N.Y. Sept. 15, 1997) (citing Colon v.
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Coughlin, 58 F.3d 865, 874 (2d Cir.1995) & Wright v. Smith,
21 F.3d at 501) (further citations omitted).
*6 If a plaintiff seeks to bring a § 1983 action for supervisory
liability, liability on the part of the supervisor may exist
in one or more of the following ways:
1) actual direct participation in the
constitutional violation, 2) failure to
remedy a wrong after being informed
through a report or appeal, 3) creation
of a policy or custom that sanctioned
conduct amounting to a constitutional
violation, or allowing such a policy
or custom to continue, 4) grossly
negligent supervision of subordinates
who committed a violation, or
5) failure to act on information
indicating that unconstitutional acts
were occurring.
Hernandez v. Keane, 341 F.3d 137, 145 (2d Cir.2003) (citing
Colon v. Coughlin, 58 F.3d at 873) (further citations omitted).
As stated above, Plaintiff does not allege that the Defendants
directly participated in the alleged conspiracy to release him
into the general prison population. Nor does Plaintiff allege
that the Defendants failed to remedy a wrong that befell
him. To the contrary, the record shows Defendant James
Campbell investigated the assault on Plaintiff, and that the
responsible inmates were arrested and punished. Dkt. No. 61,
Pl.'s Opp. to Defs.' Mot. for Summ. J., Ex. G, Investigative
Rep., dated Jan. 25, 2006; Dkt. No. 56-7, Mark Kramek,
Assistant Superintendent, Albany County Corr. Facility, Aff.,
dated Aug. 14, 2007, at p. 3.
To the extent Plaintiff is claiming that the Defendants created
an unconstitutional policy or custom by allowing inmates
charged with rape to be released into the general population,
that claim must also fail. Plaintiff asserts that the general
prison population knew about his rape charge because it was
reported in the media and because C.O. Stewart called him
a rapist within earshot of other inmates. Plaintiff contends
it was for that reason he was attacked upon his release
into the general population. Pl.'s Opp. to Defs.' Mot. for
Summ. J. at ¶¶ 5-6. The record shows that there was no
policy of controlling what information inmates received
via the press in Albany County. Dkt. No. 56-4, James I.
Campbell, Sheriff of Albany County, Aff., dated Aug. 20,
2007. Nor does Albany County have a policy or custom of
segregating inmates in any way based on the crime for which
they have been convicted or charged. Id. These policies do
not sanction unconstitutional conduct, rather, they serve the
purpose of protecting the individual privacy of inmates and
providing access to information from the outside world. Thus,
implementation of these policies does not create supervisory
liability on the part of Defendants.
Finally, there is no accusation nor evidence in the record
to indicate that the Defendants were grossly negligent
in their supervision of subordinates. Plaintiff's accusations
against C.O. Stewart were duly investigated and subsequently
dismissed by prison personnel. And, as discussed above,
Defendants did not have any advance warning that Plaintiff's
safety would be in jeopardy once released into the general
population. Thus, there is no ground upon which supervisory
liability can attach to the Defendants.
*7 Therefore, it is recommended that Plaintiff's claim on this
ground be dismissed.
III. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Defendants' Motion for Summary
Judgment (Dkt. No. 56) be granted; 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 ten
(10) 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 TEN (10) 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), & 6(e).
All Citations
Not Reported in F.Supp.2d, 2008 WL 902187
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Wilson v. Campbell
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 9:06cv00175
WILSON v. CAMPBELL ET AL
— N.D.N.Y. Feb. 09, 2006 Docket
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Wilson v. Campbell
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Moncrieffe v. Witbeck, Not Reported in F.Supp.2d (2000)
2000 WL 949457
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Inesti v. Hogan, S.D.N.Y., March 5, 2013
2000 WL 949457
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Shawn MONCRIEFFE, Plaintiff,
v.
Linda WITBECK, Corrections Officer at
Coxsackie Correctional Facility; B. Schwebler;
Dominic Mantello, Superintendent; C.O. Weeks;
C.O. Jensen; and C.O. McFarlene, Defendants.
No. 97–CV–253.
|
June 29, 2000.
Attorneys and Law Firms
Shawn Moncrieffe, Auburn Correctional Facility, Auburn,
New York, Plaintiff, pro se.
Hon. Dennis C. Vacco, Attorney General for the State of
New York, Steven H. Schwartz, Assistant Attorney General,
Department of Law, the Capitol, Albany, New York, for
Defendants.
MEMORANDUM–DECISION AND ORDER
MORDUE, J.
INTRODUCTION
*1 Plaintiff moves and defendants cross-move for summary
judgment under Section 56(b) of the Federal Rules of Civil
Procedure in this pro se action pursuant to 42 U.S.C. § 1983
alleging violations of his rights under the Fourth, Eighth and
Fourteenth Amendments to the United States Constitution.
Presently before the Court is the Report–Recommendation of
the Hon. Magistrate Judge David R. Homer dated December
23, 1998, recommending that plaintiff's motion be denied and
defendants' cross-motion be granted in part and denied in part.
Plaintiff filed timely objections to the Report–
Recommendation.
FACTS
In his complaint, plaintiff alleges that between August
and November, 1996, while he was housed in the Special
Housing Unit of Coxsackie Correctional Facility, defendant
Correctional Officer Linda Witbeck deprived him of a
food tray six times; that Witbeck deprived him of things
such as recreation and supplies six times; that Witbeck
laughed at him four times while he was in the shower;
that Witbeck sexually harassed plaintiff once “when she
felt [plaintiff's] genitals and rear end during a regular
recreation pat frisk;” that Witbeck ransacked his cell; and
that in some unspecified manner Witbeck gave him a death
threat. Plaintiff further alleges that during the same period
defendant Correctional Officer Weeks sexually harassed him
during a routine pat frisk when Weeks “felt [plaintiff's]
genitals a few times.” Plaintiff claims that on two occasions
defendant Correctional Officer McFarlene entered his cell
and ransacked it while plaintiff was in the shower and
once confiscated “a few of [plaintiff's] things.” Plaintiff also
claims that defendant Correctional Officer Jensen threatened
him once and assaulted him once by kicking him in the
back. Plaintiff states that the grievance supervisor, defendant
Schwebler, did not log and number plaintiff's grievances
as required and that Superintendent Dominic J. Mantello
disregarded plaintiff's numerous complaints.
Magistrate Judge Homer recommended denial of plaintiff's
motion for summary judgment and dismissal of all of
plaintiff's claims except his Eighth Amendment claim against
Witbeck for denial of food.
DISCUSSION
Pursuant to 28 USC § 636(b)(1)(C), this Court must make
a de novo determination of those portions of the Magistrate
Judge's Report–Recommendation to which plaintiff has
specifically objected. Here, plaintiff objects to Magistrate
Judge Homer's recommendations except with respect to the
issues of verbal harassment, threats and denial of recreation.
He erroneously states that the Report–Recommendation does
not address the claim that Witbeck laughed at him while he
was in the shower; however, this allegation amounts to a claim
of verbal harassment, which is not actionable under 42 U.S.C.
§ 1983. Aziz Zarif Shabazz v. Pico, 994 F.Supp. 460, 474
(S.D.N.Y.1998). Accordingly, the Court will address all other
issues de novo.
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Summary Judgment is appropriate when the pleadings,
affidavits, and any other supporting papers demonstrate that
there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247 (1986). Facts, inferences therefrom and ambiguities
must be examined in a context which is most favorable to
the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
*2 The movant bears the initial burden of showing that there
is no genuine issue as to any material fact. Fed.R.Civ.P. 56;
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the
moving party has met this burden the non-moving party “must
do more than simply show that there is some metaphysical
doubt as to the material facts.” Matsushita at 586. The moving
party must “set forth specific facts showing that there is a
genuine issue for trial.” Fed.R.Civ.P.56(e); Liberty Lobby at
250.
Where summary judgment is sought against a pro se litigant
the Court must afford him special solicitude. Graham v.
Lewinski, 848 F.2d 342, 344 (2d Cir.1988).
A. Defendant Mantello
Plaintiff alleges that defendant Mantello is liable because,
as Superintendent of the Coxsackie Correctional Facility, he
“disregarded” numerous complaints made to him by plaintiff.
More specifically, plaintiff alleges that (1) Mantello failed
to remedy a wrong after having learned of it and (2) that
Mantello was negligent in his supervision of subordinate
employees.
Magistrate Judge Homer concluded in his Report–
Recommendation that plaintiff failed to demonstrate a
claim against Mantello. With respect to plaintiff's first
allegation that Mantello failed to remedy a wrong, the
Magistrate Judge determined that either Mantello or his
subordinates investigated plaintiff's grievances. Because
plaintiff's complaints were investigated and it was concluded
that the grievances were without merit, Mantello satisfied his
obligations with respect to plaintiff's grievances.
The Magistrate Judge similarly rejected plaintiff's second
claim that Mantello negligently supervised subordinate
employees who were allegedly violating his constitutional
rights. Magistrate Judge Homer concluded that no claim was
stated because, whereas the law requires gross negligence
to impose supervisor liability, plaintiff merely alleged
negligence. In addition to determining that plaintiff's claim
was without merit for failure to plead and prove gross
negligence, Magistrate Judge Homer also concluded that
plaintiff had failed to establish even ordinary negligence on
the part of Mantello.
Plaintiff objects to Magistrate Judge Homer's conclusion that
he failed to establish supervisor liability. Plaintiff argues that
the record establishes gross negligence in that Mantello was
aware that plaintiff's rights were being violated but chose to
ignore them by failing to investigate or remedy same.
In order to establish a successful § 1983 claim, a plaintiff
must establish that a defendant was personally involved in
the alleged rights violation. Colon v. Coughlin, 58 F.3d 865,
873 (2d Cir.1995); Wright v. Smith, 21 F.3d 496, 501 (2d
Cir.1994). An official is not liable in a section 1983 action
under the doctrine of respondeat superior. Polk County v.
Dodson, 454 U.S. 312, 325 (1981). However, an individual
who occupies a supervisory position may be found personally
involved by: (1) direct participation; (2) failing to remedy
a wrong after learning of the violation through a report
or appeal; (3) creating a policy or custom under which
unconstitutional practices occurred or allowing the policy
or custom to continue; or (4) gross negligence in managing
subordinates whose conduct caused the unlawful condition or
event. See Wright, 21 F .3d at 501.
*3 With respect to plaintiff's objection arguing that Mantello
was grossly negligent, plaintiff simply reiterates his original
arguments and relies on evidence already in the record and
considered by the Magistrate Judge. Plaintiff merely reiterates
in his objections to the Report–Recommendation that he has
established a case
which includes gross negligence as
evidence [sic] in plaintiff's motion.
(See plt. motion for summary
judgment, memo. Of law pg. 23 with
annexed exibits [sic] and plt. Reply
decl. Pg. 11 with attached exibits
[sic] ). Moreover, the record is legally
sufficient to establish and impose
supervisory liability. (See exibits [sic]
attached to plt. motion for summary
judgment and Reply motion).
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As Magistrate Judge Homer correctly stated, the record
clearly reveals that Mantello or his subordinate employees
investigated plaintiff's grievances and rejected them as being
without merit. As such, there is nothing in the record
indicating that Mantello either turned a blind eye to plaintiff's
complaints. Simply stated, plaintiff's assertion that Mantello
ignored his complaints is refuted by the investigations
conducted regarding the complaints. Similarly, plaintiff's
allegation that Mantello failed to remedy a wrong is without
merit because the record reflects that the investigation of the
complaints came to the conclusion that no wrongs were being
committed.
Aside from reiterating his initial arguments, plaintiff has
failed to provide the Court with anything further in
his objection which would warrant disturbing the sound
conclusion of the Magistrate Judge. Accordingly, this Court
accepts Magistrate Judge Homer's determination to dismiss
plaintiff's claim with respect to defendant Mantello.
B. Verbal Threats and Harassment
Plaintiff alleges that he was subjected to verbal threats
and harassment in that corrections officers laughed and
insulted him while he showered. Plaintiff also maintains that
he was subjected to threats of violence. Magistrate Judge
Homer recomended that defendants were entitled to summary
judgment because plaintiff failed to establish an actual injury
resulting from the alleged threats or harassment.
A claim for verbal harassment is not actionable under 42
U.S.C. § 1983. Aziz Zarif Shabazz v. Picco, 994 F.Supp. 460,
474 (S.D.N.Y.1998); Malsh v. Austin, 901 F.Supp. 757, 763
(S.D.N.Y.1995). As correctly noted by the Magistrate Judge,
“verbal harassment or profanity alone, unaccompanied by
an injury no matter how inappropriate, unprofessional, or
reprehensible it might seem, does not constitute the violation
of any federally protected right and therefore is not actionable
under 42 U.S.C. § 1983.” Picco 994 F.Supp. at 474. Similarly,
“threats do not amount to violations of constitutional rights.”
Malsh, 901 F.Supp. at 763.
Even assuming that the alleged verbal harassment and threats
ocurred, plaintiff has failed to plead or prove that there
were any accompanying actual injuries. Furthermore, plaintiff
does not object to the findings of the Magistrate Judge with
respect to verbal threats and harassment. After a thorough
review of the Report–Recommendation the Court adopts the
recommendation of the Magistrate Judge.
C. Excessive Force
*4 Plaintiff alleges that defendant Jensen kicked him once in
the back on November 9, 1996. He states that he suffered pain
but does not claim that he sought medical assistance. Plaintiff
does not allege that Jensen acted maliciously or sadistically.
Magistrate Judge Homer found that plaintiff had failed to
annunciate an actionable claim for excessive force. More
particularly, he concluded that the alleged kick, even if true,
was of limited duration and that there was no malicious intent
on the part of the corrections officer.
It is well settled that “the unnecessary and wanton infliction
of pain ... constitutes cruel and unusual punishment forbidden
by the Eighth Amendment.” Hudson v. McMillian, 503
U.S. 1, 5 (1992) (quoting Whitley v. Albers, 475 U.S. 312
(1986))(internal quotation marks omitted). In reviewing a
prisoner's claim a Court must consider whether the prison
official acted with a sufficiently culpable state of mind and
whether the alleged wrongdoing was objectively harmful
enough to establish a constitutional violation. Hudson at 8. In
considering whether the prison official possessed a culpable
state of mind while engaging in the use of force, the inquiry
is whether the prison official applied force maliciously and
sadistically to cause harm. Id. at 7. The extent of an inmate's
injuries is relevant to this inquiry, as is the nature and
duration of the act. James v. Coughlin, 13 F.Supp.2d 403,
409 (W.D.N.Y.1998); Reyes v. Koehler, 815 F.Supp. 109,
113–14 (S.D.N.Y.1993). Important in considering the alleged
wrongdoing is determining whether the force was applied in
a good faith effort to maintain or restore prison discipline or
maliciously and sadistically to cause harm. Hudson at 7.
With respect to the nature of the wrongdoing, a prisoner
must demonstrate that the deprivation alleged is sufficiently
serious or harmful enough to reach constitutional dimensions.
Romano v. Howarth, 998 F.2d 101, 104–05 (2d Cir.1993). A
prisoner is not required to demonstrate that he sustained a
serious injury; de minimis use of force does not, however, give
rise to an Eighth Amendment claim. Hudson at 9–10.
Plaintiff's allegations, even if true, do not support
a determination that Jensen acted maliciously or
sadistically. Interestingly, in his objections to the Report–
Recommendation, plaintiff admits that the kick was of
limited duration. In the balance of his objection plaintiff
merely reiterates his opinion that the evidence submitted
supports an inference of malice. The Court concludes that
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the conduct alleged is not sufficiently serious or harmful to
reach constitutional dimensions. Accordingly, defendants are
entitled to summary judgment dismissing plaintiff's excessive
force claim.
D. Access to the Courts
Plaintiff alleges that he was denied access to the courts as a
result of cell searches, confiscation of documents and denial
of supplies between August and November 1996. Plaintiff
alleges that these actions were motivated to frustrate his
efforts to litigate.
*5 Magistrate Judge Homer recommended that the
defendant's motion to dismiss this claim should be granted.
The Magistrate Judge found that plaintiff's claim of denial of
access to the courts was unsubstantiated with any evidence
which demonstrated that plaintiff had suffered any actual
injuries from any alleged wrongful conduct. To the contrary,
Magistrate Judge Homer concluded that plaintiff's claims
were supported by a thirty-five page memorandum of law
containing both case and statutory authority as well as an
exhibit related to state court proceedings—all of which
demonstrated plaintiff's full and adequate ability to litigate his
claims.
It is well established that prisoners have a constitutional
right to access to the courts. “To state a claim that his
constitutional right to access the court was violated, plaintiff
must allege facts demonstrating that defendants deliberately
and maliciously interfered with his access to the courts, and
that such conduct materially prejudiced a legal action he
sought to pursue.” Smith v. O'Connor, 901 F.Supp. 644, 649
(S.D.N.Y.1995); see Morello v.. James, 810 F.2d 344, 347 (2d
Cir.1987). In other words, in order to establish a violation of
his right of access to the courts, an inmate must demonstrate
that he has suffered or imminently will suffer actual harm in
presenting a claim to the court. Lewis v. Casey, 518 U.S. 343
(1996).
In his objections to the Report–Recommendation, plaintiff
restates arguments already considered by Magistrate Judge
Homer. He states that “[p]laintiff further reiterates that he has
incurred irreparable harm and injury as a result of the lack of
legal services he received while confined in Coxsackie SHU.”
Plaintiff goes on to note that his complaints would not have
been able to have been brought had he not been transferred
to the Elmira Correctional Facility. Implicit in this statement
is that plaintiff was in fact allowed to bring his claims.
Assuming arguendo that plaintiff was not allowed to bring his
claims until after transfer, the fact still remains that plaintiff
did in fact have the ability to air his grievances. Therefore,
at best, plaintiff's hardship was delay in bringing his claims.
As plaintiff has not established how such an alleged delay
has prejudiced his rights or amounted to an injury, he fails to
make the requisite showing of actual injury for a successful
claim. As such, the Court accepts Magistrate Judge Homer's
recommendation and grants defendant's motion as to this
claim.
E. Sexual Harassment
With respect to plaintiff's sexual harassment claim, Magistrate
Judge Homer concluded that plaintiff failed to establish an
actionable case. Magistrate Judge Homer found that the
conduct involved was de minimus and, therefore, did not
violate a constitutionally protected right.
Sexual abuse of an inmate by a corrections officer may
reach constitutional dimensions and give rise to an Eighth
Amendment claim. Boddie v. Schnieder, 105 F.3d 857, 859
(2d Cir.1997). When reviewing an Eighth Amendment claim
stemming from an allegation of sexual abuse, a Court must
consider whether the conduct alleged is sufficiently serious
to violate contemporary standards of decency and cause
severe physical and psychological harm. Id at 861. The Court
must further consider whether the prison official involved
possessed a sufficiently culpable state of mind. Where no
legitimate law enforcement or penological purpose can be
inferred from the defendant's alleged conduct, the abuse itself
may be sufficient evidence of a culpable state of mind. Id. at
861.
*6 As set forth above, plaintiff claims that defendants Weeks
and Witbeck, each on one occasion, conducted pat frisks in
an improper manner. Assuming the truth of these allegations
for the purposes of these motions, they are not sufficiently
serious to violate contemporary standards of decency and
cause severe physical and psychological harm. Plaintiff has
failed to demonstrate any severe physical or psychological
harm that he has suffered as a result of the alleged harassment.
Thus, plaintiff's allegations of sexual abuse fail to state a
claim cognizable under the Eighth Amendment. Defendants
are therefore entitled to summary judgment dismissing this
claim.
F. Cell Searches
Plaintiff alleges that he was subjected to cell searches which
were designed to harass. Plaintiff's initial pleadings merely
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allege same with no evidence to support the claim. As a result,
Magistrate Judge Homer concluded that plaintiff's claim was
without merit and recommended that defendant's motion be
granted.
“[T]he Fourth Amendment proscription against unreasonable
searches does not apply within the confines of the prison cell,”
Hudson v. Palmer, 468 U.S. 517, 526 (1984), even where
the search is retaliatory in nature. Higgins v. Coombe, 1997
WL 328623, at * 7 (S.D.N.Y.1997). Prisoners do, however,
enjoy Eighth Amendment protection from searches that lack
any legitimate penological interest and are intended solely
to harass. Nilsson v. Coughlin, 1987 WL 129823, at * 4
(S.D.N.Y.1987), see also Hudson at 530.
Plaintiff fails to raise anything in his objections to the
Magistrate Judge's Report–Recommendation which would
warrant disturbing the sound conclusion and recommendation
found therein. As Magistrate Judge Homer correctly stated the
law with respect to plaintiff's claim, and since plaintiff fails to
provide any evidence to support his argument that the alleged
searches were improper, the Court concludes that this claim
is without merit and grants defendant's motion.
G. Deprivation of Food and Recreation
Prison officials have a duty under the Eighth Amendment to
provide humane conditions of confinement: adequate food,
clothing, shelter and medical care. Denial of a minimal
civilized measure of life's necessities violates the Eighth
Amendment. Farmer v. Brennan, 511 U.S. 825 (1994).
Depriving an inmate of food or serving him contaminated
food may constitute a violation of the Eighth Amendment.
Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir.1983); Odom v.
Sielaff, 1995 WL 625786, at * 5 (E.D.N.Y.1995); see also
Rhodes v. Chapman, 452 U.S. 337, 348 (1981).
Plaintiff alleges that corrections officer Witbeck denied
him food on six occasions and on at least two occasions
contaminated his food with spit or perfume. In support of
their motion to dismiss, defendants rely on an affidavit from
Witbeck denying the allegations. Defendants also rely on
copies of logbook entries for the SHU in which plaintiff was
housed. Because these logbooks do not contain clear entries
for some of the dates in issue and would not likely reflect the
wrongful denial of meals to an inmate by a corrections officer,
they do not establish as a matter of law that defendants never
denied plaintiff food. Credibility assessments and choices
between conflicting versions of events are matters for a fact-
finder at trial, not for the Court on a summary judgment
motion. Fischl v.. Armitage, 128 F.3d 50, 55 (2d Cir.1997).
Thus, plaintiff's motion and defendants' cross-motion for
summary judgment are denied with respect to the issue of
whether plaintiff's Eighth Amendment rights were violated by
deprivation of food.
*7 Plaintiff further alleges that he was deprived of his Eighth
Amendment rights where he was allegedly denied recreation
on a single occasion. Magistrate Judge Homer concluded that
denial of recreation on a single occasion was not sufficiently
serious to support a constitutional claim. Plaintiff does not
object to these recommendations.
Although prisoner's have a constitutional right to exercise, a
claim alleging deprivation of this right requires a showing
of a serious deprivation and deliberate indifference on the
part of prison officials. Williams v. Greifinger, 97 F.3d 699,
704 (2d Cir.1996); Barnham v. Meachum, 77 F.3d 626, 630
(2d Cir.1996). As illustrated by the Report–Recommendation,
denial of recreation for eighteen out of nineteen days has been
upheld in the Second Circuit and denials of up to seventy-
five days have been upheld elsewhere. Arce v. Walker, 907
F.Supp. 658 (W.D.N.Y.1995), aff'd in part, vacated in part
139 F.3d 329 (2d Cir.1998); Green v. Ferrell, 801 F.2d 765
(5th Cir.1986).
Based on the foregoing, the Court concludes that the alleged
denial of recreation on a single occasion does not support a
claim for deprivation of constitutional rights. Accordingly,
defendant's motion is granted with respect to this element of
plaintiff's claim.
CONCLUSION
After a careful review of the file, party submissions and
applicable law, it is hereby
ORDERED that Magistrate Judge Homer's Report–
Recommendation dated December 23, 1998 is ACCEPTED
IN FULL; and it is further
ORDERED that plaintiff's motion for summary judgment is
DENIED in all respects; and it is further
ORDERED that defendant's cross-motion for summary
judgment be DENIED with respect to plaintiff's claim against
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defendant Witbeck regarding the alleged deprivation of food
and GRANTED in all other respects.
IT IS SO ORDERED
All Citations
Not Reported in F.Supp.2d, 2000 WL 949457
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Moncrieffe v. Witbeck
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Celestin v. Angeletta, Not Reported in Fed. Supp. (2021)
2021 WL 1062344
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Kirton v. Doe, S.D.N.Y., March 21, 2023
2021 WL 1062344
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Ricky CELESTIN, Plaintiff,
v.
Captain ANGELETTA, et al., Defendants.
19 CV 1887 (NSR)
|
Signed 03/19/2021
Attorneys and Law Firms
Ricky Celestin, Valhalla, NY, pro se.
Jane Hogan Felix, Westchester County Attorney's Office,
White Plains, NY, for Defendants.
OPINION & ORDER
NELSON S. ROMÁN, United States District Judge:
*1 Pro se Plaintiff Ricky Celestin (“Plaintiff”) commenced
this action under 42 U.S.C. § 1983 (“Section 1983”) against
Defendants Captain Angeletta, 1 Sergeants Hollis and Davis,
Officers Moore, Cardillo, Rodrigues, Maganello, Albohn, and
Adames (collectively, “Defendants”) for alleged violations of
his right to be free from excessive force under the Due Process
Clause of the Fourteenth Amendment. Defendants moved
to dismiss arguing that Plaintiff has not pled a cognizable
Section 1983 violation under the Fourteenth Amendment.
(“Defs.’ Mem.” (ECF No. 23).) For the following reasons,
Defendants’ Motion is GRANTED.
1 There is a discrepancy in the spelling of Captain
Angeletta's name. Defendants’ Motion to Dismiss
refers to him as Captain Angelotta. The Court will
use “Angeletta” for clarity.
BACKGROUND
The facts herein are drawn from Plaintiff's Complaint (ECF
No. 2) and the Court accepts those facts as true for purposes
of this motion.
I. Plaintiff's Allegations
Plaintiff alleges that on February 2, 2019, while he was
a pretrial detainee, Defendants violated his constitutional
rights by assaulting him. (Compl. at 2.) Plaintiff alleges that
a sergeant pepper sprayed him for “no apparent reason,”
and that Plaintiff pushed towards the pepper spray in an
attempt to shield his body and face from the “chemical
agent.” (Compl. at 4.) Plaintiff alleges that the Emergency
Response Team (“ERT”) then arrived and took control of the
situation. They punched, kicked and elbowed every part of
Plaintiff's body until he fell to the floor, still trying to get
“the mace” out of his eyes. (Compl. at 4). Plaintiff was on
the floor, in full body restraints, and ERT continued their
assault. ERT screamed at Plaintiff to stop resisting. Plaintiff
alleges that ERT deliberately slapped cuffs on Plaintiff's
wrists and ankles and tightened the restraints, which cut off
Plaintiff's circulation, pinched his skin, and caused abrasions.
When ERT escorted Plaintiff to the Solitary Housing Unit,
they continued whispering obscenities to him and threatening
future assaults. (Compl. at 4.)
Plaintiff further alleges that the pepper spray and beatings
caused abrasions to his wrist and ankles; chronic back pain;
eye blurriness; excruciating neck pain; overall shooting body
pains; mental deterioration, and mental anguish. (Compl. at
5.)
II. Procedural History
Plaintiff filed his Complaint on February 26, 2019 seeking
(1) an injunction to stop the unnamed Sergeant and other
corrections officers from using pepper spray without cause;
and (2) transfer him out of the Westchester County Jail
correctional system. (ECF No. 2.). The Court granted
Plaintiff's request to proceed in forma pauperis (ECF No.
5), and directed the Clerk of Court and the U.S. Marshals
to effect service on Plaintiff's behalf (ECF No. 6). By order
dated May 29, 2020, the Court granted Defendants leave
to file their Motion to Dismiss. (ECF No. 18.) Defendants
filed an affidavit indicating that they served the Court's
order on Plaintiff by mail at his last known address, which
Plaintiff had not provided to the Court, because Plaintiff
was released from jail on April 11, 2019. (ECF No. 18.)
Defendants subsequently served their Motion to Dismiss on
Plaintiff by mail on July 14, 2020 at Plaintiff's last known
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address. (ECF No. 20.) By letter dated August 27, 2020,
Defendants indicated that Plaintiff had not opposed their
Motion and asked the Court to treat the Motion as fully
submitted. (ECF No. 25.) The Court granted this request by
order dated December 23, 2020. (ECF No. 26.) The Clerk of
Court mailed a copy of the Court's Order to Plaintiff at the
address on ECF—Westchester County Jail—however, that
mailing was returned as unable to forward. To date, Plaintiff
has not informed the Court of his new address so ECF still
lists his address as Westchester County Jail.
LEGAL STANDARDS
*2 Under Federal Rule of Civil Procedure 12(b)(6), a court
must determine whether the complaint “contain[s] 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 court must take all material factual
allegations as true and draw reasonable inferences in the non-
moving party's favor, but the court is “not bound to accept
as true a legal conclusion couched as a factual allegation,”
or to credit “mere conclusory statements” or “[t]hreadbare
recitals of the elements of a cause of action.” Id. (quoting
Twombly, 550 U.S. at 555, 127 S.Ct. 1955). A claim is facially
plausible when the factual content pleaded allows a court “to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. at 678, 129 S.Ct. 1937.
Plaintiff in this case is a pro se litigant and therefore the
Court is obligated to construe his pleadings liberally. Thomas
v. Colletti, No. 13-CV-04827, 2014 WL 1329947, at *1-2
(S.D.N.Y. Mar. 28, 2014). A court must read pro se complaints
“ ‘to raise the strongest arguments that they suggest.’ ”
Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006) (internal
quotation marks omitted); see also Harris v. Mills, 572 F.3d
66, 72 (2d Cir. 2009) (“[E]ven after Twombly, though, we
remain obligated to construe a pro se complaint liberally.”).
However, even pro se plaintiffs’ pleadings asserting civil
rights claims must “contain factual allegations sufficient to
raise a right to relief above the speculative level.” Jackson
v. N.Y.S. Dep't of Labor, 709 F.Supp.2d 218, 224 (S.D.N.Y.
2010) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955)
(internal quotation marks omitted). “Dismissal is justified,
therefore, where ‘the complaint lacks an allegation regarding
an element necessary to obtain relief,’ and therefore, the
‘duty to liberally construe a plaintiff's complaint [is not] the
equivalent of a duty to re-write it.’ ” Colletti, 2014 WL
1329947, at *1-2 (quoting Geldzahler v. N.Y. Med. Coll., 663
F.Supp.2d 379, 387 (S.D.N.Y. 2009) (internal citations and
alterations omitted)).
In a motion to dismiss pursuant to Rule 12(b)(6), a court
is generally confined to the facts alleged in the complaint.
Marhone v. Cassel, 2018 WL 4189518 at *5 (S.D.N.Y. August
31, 2018). The purpose of a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) “is merely to assess
the legal feasibility of the complaint, not to assay the weight
of evidence which might be offered in support thereof.” Ryder
Energy Distrib. Corp. v. Merrill Lynch Commodities Inc., 748
F.2d 774, 779 (2d Cir. 1984) (quoting Geisler v. Petrocelli,
616 F.2d 636, 639 (2d Cir. 1980)). 2
2 In support of their motion, Defendants submitted
a video that purportedly supports their claim that
no excessive force was used. They cite two cases
in support of their request that the Court consider
the video: Scott v. Harris, 550 U.S. 372, 380,
127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) and
Alston v. Butkiewicu, No. 3:09-CV-207 CSH, 2012
WL 6093887 at *3-4 (D. Conn. 2012). However,
those two cases refer to motions for summary
judgment and not motions to dismiss. It would be
inappropriate for the Court to weigh this evidence
in a motion to dismiss and it would be premature to
convert this motion to one for summary judgment
based on the video alone before any discovery has
occurred. Accordingly, the Court has not reviewed
the video.
A court should allow the pro se plaintiff to amend his or
her complaint at least once “when a liberal reading of the
complaint gives any indication that a valid claim might be
stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795
(2d Cir. 1999) (internal quotation marks omitted); see Colletti,
2014 WL 1329947, at *4.
DISCUSSION
*3 To state a Section 1983 claim, a plaintiff “must allege that
the challenged conduct (1) was attributable to a person acting
under color of state law, and (2) deprived the plaintiff of a
right, privilege, or immunity secured by the Constitution or
laws of the United States.” Whalen v. Cnty. of Fulton, 126 F.3d
400, 405 (2d Cir. 1997). In other words, to state a plausible
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Section 1983 claim, a plaintiff must allege both a violation of
plaintiff's constitutional right and personal involvement of the
defendant(s). Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct.
1865, 104 L.Ed.2d 443 (1989); see also Baker v. McCollan,
43 U.S. 137, 140 (1979) (“The first inquiry in any § 1983
suit, therefore, is whether the plaintiff has been deprived of a
right ‘secured by the Constitution and laws.’ ”) (quoting 42
U.S.C. § 1983 (1996)). Excessive force is a violation of the
Fourteenth Amendment's Due Process Clause. 3
3 In their Motion to Dismiss, Defendants rely
on an excessive force standard that applies to
convicted prisoners under the Eighth Amendment.
See Wright v. Goord, 554 F.3d 255, 268 (2d Cir.
2009); Hudson v. McMillian, 503 U.S. 1, 7-8,
112 S.Ct. 995, 117 L.Ed.2d 156 (1992); Blyden v.
Mancusi, 186 F.3d 252, 262 (2d Cir. 1999). Since
Plaintiff is a pretrial detainee, the Court applies the
objective reasonableness standard for Fourteenth
Amendment Due Process Clause violations.
Defendants contend that Plaintiff has failed to allege both a
constitutional violation and personal involvement. The Court
will address each issue in turn.
I. Excessive Force
A pretrial detainee's claims “are evaluated under the Due
Process Clause 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.’
” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017)
(quoting Iqbal v. Hasty, 490 F.3d 143,0 168 (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)).
Under Kingsley v. Hendrickson, any time a prison guard
engages in excessive force against a pretrial detainee, even
if there is no evidence of serious injury, there is always a
constitutional violation because “pretrial detainees (unlike
convicted prisoners) cannot be punished at all[.]” 576 U.S.
389, 400, 135 S.Ct. 2466, 192 L.Ed.2d 416 (2015). In other
words, “a pretrial detainee must show only that the force
purposely or knowingly used against him was objectively
unreasonable.” Kingsley, 576 U.S. at 396-7, 135 S.Ct. 2466.
A factfinder must apply an “objective reasonableness”
standard that “turns on the facts and circumstances of each
particular case.” Frost v. N.Y.C. Police Dep't, 980 F.3d 231,
252 (2d Cir. 2020) (quoting Kingsley, 576 U.S. at 397,
135 S.Ct. 2466). Important factors to consider 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.” Kingsley, 576 U.S. at 397, 135 S.Ct.
2466. The factfinder must also “take account of the legitimate
interests in managing a jail, acknowledging as part of the
objective reasonableness analysis that deference to policies
and practices needed to maintain order and institutional
security is appropriate.” Id. (quoting Bell v. Wolfish, 441
U.S. 520, 540, 547, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)).
Balancing those needs, force which “is not rationally related
to a legitimate governmental objective or that it is excessive
in relation to that purpose” fails the test. Kingsley, at 398, 135
S.Ct. 2466 (quoting Cf. Block v. Rutherford, 468 U.S. 576,
585-586, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984)). Moreover,
“claims for excessive force under the Fourteenth Amendment
must involve force that is either ‘more than de minimis’ or
‘repugnant to the conscience of mankind.’ ” Lewis v. Huebner,
No. 17-CV-8101, 2020 WL 1244254, at *5 (S.D.N.Y. Mar.
16, 2020) (citing United States v. Walsh, 194 F.3d 37, 48 (2d
Cir. 1999)).
A. Pepper Spray
*4 Plaintiff alleges a sergeant pepper sprayed him for “no
apparent reason” and that he was not resisting the sergeant.
Pepper spray can be considered objective excessive force. In
the case of a pretrial detainee who was pepper sprayed while
restrained, the “Second Circuit has recognized, ‘infliction
of pepper spray’ may have ‘a variety of incapacitating and
painful effects, and as such, its use constitutes a significant
degree of force’ ” Toliver v. N.Y.C. Dep't of Corr., 202
F.Supp.3d 328, 335 (S.D.N.Y. 2016) (quoting Tracy v.
Freshwater, 623 F.3d 90, 98 (2d Cir. 2010)). Here, Plaintiff
alleges he suffered more than de minimis harm from the
pepper spray and assault, including: abrasions to his wrist
and ankles, chronic back pain, eye blurriness, excruciating
neck pain, overall shooting body pains, mental deterioration
and mental anguish. Plaintiff's allegations of objective force
without reason sufficiently meets the Kingsley standard for a
violation of constitutional rights.
B. Assault
Plaintiff accuses the ERT officers of punching, kicking,
elbowing, every part of his body, even after Plaintiff was
put in full body restraints and on the ground. Where an
arrestee brought a Section 1983 claim for excessive force,
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the court in Bueno Diaz v. Mercurio, held that while “ ‘not
every push or shove’ violates the [Constitution], [p]laintiff
claims that he was punched, kicked, choked, hit with the
butts of the officers’ pistols ... [t]hese actions, assumed
true for the purposes of deciding the motion to dismiss,
exceed reasonable force.” 442 F.Supp.3d 701, 713 (S.D.N.Y.
2020) (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865).
Additionally, the Second Circuit has held that, “an officer
cannot strike an individual who is compliant and does not
pose an imminent risk of harm to others.” Frost, 980 F.3d at
257. The force Plaintiff alleges, even after being restrained
and on the ground, fails an objective reasonableness standard
for similar reasons as the pepper spray. Both are more than de
minimis uses of force with no obvious governmental purpose.
II. Personal Involvement
Since Plaintiff has plausibly alleged that excessive force
was used, the Court next considers whether Plaintiff has
stated a claim against any of the named officials. To state
a plausible Section 1983 claim, Plaintiff must allege each
Defendant's personal involvement in the alleged attack.
Deliberate indifference in this context “means the official
must ‘know [ ] of and disregard[ ] an excessive risk to
inmate health or safety; the official must both be aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
the inference.’ ” Tangreti v. Bachmann, 983 F.3d 609, 619
(2d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825,
837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). Under Section
1983, a plaintiff “must plead and prove the elements of the
underlying constitutional violation directly against the official
without relying on a special test for supervisory liability.” Id.
at 620.
A. Captain David Angeletta
Plaintiff's claim against Captain David Angeletta fails
because Plaintiff does not connect Captain Angeletta to the
purported assault. Under Tangreti, a Plaintiff must establish
a tangible connection between the Captain and the alleged
constitutional amendment violations “ ‘through the official's
own individual actions, has violated the Constitution.’ ” 983
F.3d at 618 (quoting Iqbal, 556 U.S. at 676, 129 S.Ct. 1937).
Merely being in the chain of command or a supervisory
role is not enough to satisfy this standard. Plaintiff must
allege Captain Angeletta's direct role in the assault or
his supervisory role as one of deliberate indifference. The
“deliberate-indifference standard ‘require[es] a showing that
the official was subjectively aware of the risk,’ ” Farmer,
511 U.S. at 829, 114 S.Ct. 1970. Since Plaintiff does not
allege Captain Angeletta's direct role, Plaintiff has not stated
a plausible claim against Captain Angeletta. Costello v. City
of Burlington, 632 F.3d 41, 48-49 (2d Cir. 2011) (holding that
failure to establish personal involvement is “fatal” for a claim
under Section 1983).
B. Defendant Sergeants Kevin Hollis and Alexander
Davis
*5 Plaintiff alleges that “[t]he Sergeant” pepper sprayed
him “for no apparent reason.” However, Plaintiff's use of
“[t]he Sergeant” does not sufficiently identify which of the
two sergeants he named as Defendants, if either, used the
pepper spray. In addition, Plaintiff does not mention a second
sergeant in his description of the assault. Since Plaintiff must
plead and prove “that each Government-official defendant,
through the official's own individual actions, has violated the
Constitution,” Tangreti, 983 F.3d at 618 (quoting Iqbal, 556
U.S. at 676, 129 S.Ct. 1937), his claims against the unnamed
sergeant(s) fail because he does not specify or detail the
actions of each sergeant individually such that either or each
personally violated Plaintiff's rights.
C. Correction Officers Todd Moore, Dean Cardillo,
Michael Rodrigues, Frank Maganello, Thomas Albohn,
Juan Adames
Plaintiff plausibly alleges that the ERT officers violated
his rights. While Plaintiff does not specifically mention the
names of the ERT officers in his description of the assault,
read liberally, his complaint alleges that the six officers,
Moore, Cardillo, Rodrigues, Maganello, Albohn, and Adames
makeup the ERT staff who carried out the alleged assault.
See Messina v. Mazzeo, 854 F.Supp. 116, 125-26 (E.D.N.Y.
1994) (holding: plaintiff's reference to defendants collectively
as “defendant Police Officers” is sufficient to withstand a
motion to dismiss on personal involvement grounds because
“[i]t would be asking too much for an arrestee to remember
and plead the role each of several police officers played in an
alleged instance of police brutality”).
III. Relief
Even if Plaintiff has stated a claim against the six ERT
officers, he does not seek any viable relief. A plausible
request for relief is necessary to establish standing in a
federal court. Deshawn E. v. Safir, 156 F.3d 340, 342 (2d Cir.
1998). A Section 1983 claim allows for both monetary and
injunctive relief, Jackson v. Dep't of Corr., 20-CV-9420, 2021
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WL 706828 (S.D.N.Y. Feb. 22, 2021), and “when sued for
prospective injunctive relief in his official capacity, a state
officer is a ‘person’ for the purposes of Section 1983,” Stack
v. Hartford, 170 F.Supp.2d 288, 293 (D. Conn. 2001) (quoting
Graham, 473 U.S. at 167, 105 S.Ct. 3099).
In City of Los Angeles v. Lyons, plaintiff sought injunctive
relief against the use of choke holds “except in situations
where the proposed victim of said control reasonably appears
to be threatening the immediate use of deadly force.” 461
U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). Lyons held:
(1) “[a]bstract injury is not enough”; (2) plaintiff must be
in danger “of sustaining some direct injury” because of the
challenged conduct and (3) the threat of injury must be “real
and immediate,” not “conjectural” or “hypothetical.” 461 U.S.
at 101-2, 103 S.Ct. 1660. The Second Circuit has held that a
plaintiff must prove “(1) he or she has suffered an injury; (2)
the injury is traceable to the defendants’ conduct; and (3) a
federal court decision is likely to redress the injury.” Deshawn
E., 156 F.3d at 344. Injunctive or declaratory relief “cannot
rely on past injury to satisfy the injury requirement but must
show a likelihood that he or she will be injured in the future.”
Id.
Plaintiff seeks two forms of injunctive relief: (1) relocation
to another facility, and (2) control on the use of force (pepper
spray). As explained below, neither is a viable remedy for
Plaintiff's allegations on the current record.
As to the requested transfer, Plaintiff no longer resides at
Westchester County Jail so he can neither be relocated nor is
there “likelihood that he or she will be injured in the future.”
Deshawn E., 156 F.3d at 341.
As to the use of pepper spray, even if Plaintiff were still
at Westchester County Jail, Plaintiff's request for injunctive
relief from pepper spray use would likely not be valid under
Lyons because he has not alleged that he is likely to be
pepper sprayed again. To obtain such relief, Plaintiff would
need to allege that a repeated assault was likely and not
speculative, and that the correction facility had officially
endorsed policies of excessive use of force in non-resisting
situations. Moreover, whether the use of pepper spray is
excessive force requires a case by case factual determination
which must be resolved by the trier of fact. See Brown v. City
of New York, 798 F.3d 94, 103 (2d Cir. 2015) (holding that
whether use of pepper spray constituted excessive force was
a factual determination for the jury to determine guided by
their collective common sense and life experiences).
CONCLUSION
*6 For the foregoing reasons, Defendants’ Motion to
Dismiss the Complaint for failure to state a cognizable
Section 1983 claim is GRANTED and the Court dismisses
Plaintiff's claims without prejudice. Plaintiff may file an
Amended Complaint consistent with this Opinion on or
before April 22, 2021, should he choose to reassert his claims
against Defendants of acts or omissions which were directly
involved in the alleged deprivation of his federal rights and
request a valid form of relief.
Because the Amended Complaint will completely replace, not
supplement, the original Complaint, any facts or claims that
Plaintiff wishes to remain must be included in the Amended
Complaint. An Amended Civil Rights Complaint form is
attached to this Opinion.
If Plaintiff elects to file an Amended Complaint, Defendants
shall have thirty days from the date of Plaintiff's filing
to respond. If Plaintiff does not timely file an Amended
Complaint by April 22, 2021, and he cannot show good
cause to excuse such a failure, the claims dismissed without
prejudice by this Order will be deemed dismissed with
prejudice, and the case will be closed.
SO ORDERED.
Attachment
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All Citations
Not Reported in Fed. Supp., 2021 WL 1062344
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Celestin v. Angeletta
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Filings (1)
Title PDF Court Date Type
1. Docket 7:19-CV-01887
Celestin v. Angeletta et al
— S.D.N.Y. Feb. 26, 2019 Docket
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Celestin v. Angeletta
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Urena v. City of New York, Not Reported in Fed. Supp. (2024)
© 2025 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
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grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S.
167 (2009).
2 Defendants dispute Urena's assertion that officers
gave his commissary items away. Def. 56.1
Response ¶ 2.
3 Defendants dispute that Shaw “threatened the
deployment of chemical agents,” Def. 56.1
Response ¶ 3, although it appears from the video
footage that Shaw was holding a spray can in his
right hand during most, if not all, of Urena's strip
search, see DOC Footage 18:09:27–18:11:03.
*2 As Urena dressed, however, he began to argue with Shaw.
Id. ¶ 11; Pl. Tr. at 27. During the argument, Urena used vulgar,
antagonistic language, which he alleges “ticked [Shaw] off.”
Pl. Tr. at 27. Urena also asserts that Shaw “argu[ed] back and
forth” with him, and taunted him by saying,“[w]hat you gonna
do about it? I do what I want.” Id. He further maintains that
Shaw “read[ied] himself for the premeditated deployment”
of chemical spray. Pl. 56.1 Statement ¶ 7. Urena then spit at
Shaw, who was standing several feet away, outside of Urena's
locked cell. See DOC Footage at 18:09:27–18:11:12. 4 In
response, Shaw immediately deployed chemical spray at
Urena's face. Id.; see Def. 56.1 Statement ¶¶ 12–13. 5 Urena
retreated to the corner of the intake cell, and Shaw briefly
adjusted the direction of the chemical spray toward Urena
before stopping. See DOC Footage at 18:11:00–18:11:03.
The chemical spray deployment lasted approximately two
seconds. See id. As a result, Urena says his “whole body
felt like it was on fire,” he “couldn't breathe” because his
“lungs [were] closed in,” and his “eyes felt blurry.” Pl.
Tr. at 32. Urena stumbled to the floor and remained there
for approximately ten minutes before officers, dressed in
decontamination gear, escorted him out of his cell. See DOC
Footage at 18:11:24–18:22:35. He was then decontaminated
and treated with pain medication. His pain subsided after
twenty-four hours. Pl. Tr. at 32. He was later transferred to a
different correctional facility. Id. at 34.
4 Although Urena denies doing so, it is clear
from the video footage that that he did spit
at Shaw. Defendants claim that Urena's saliva
“ma[de] contact with [Shaw's] face,” and that Shaw
subsequently left the area to wash his face. Forcier
Decl., Ex. C (“DOC Use of Force Report”) at
D000021–22, Ex. D (“DOC Use of Force Witness
Report”) at D000023. The holes in the chain-link
intake cell appear large enough for saliva to exit the
cell. See DOC Footage at 18:10:58–18:11:03.
5 Urena alleges that Shaw deployed a “riot-sized
can of chemical agent” that “is reserved only
for situations where officers need to gain the
compliance of an entire group” rather than an
individual “already confined in a cell.” Am. Compl.
¶ 32; see Dkt. No. 49 (“Pl. Br.”) at 4. He defines
this spray as “riot spray” and “chemical mace”
in the amended complaint, and as “MK9 (bear
repellent/pepper spray)” in his Memorandum of
Law. See Am. Compl. ¶¶ 36, 40; Pl. Br. at
1. Defendants describe the chemical agent as
“chemical spray” without specifying what type
or whether its intended use is for groups or
individuals. See Def. 56.1 Statement ¶ 13; Def. 56.1
Response ¶ 7.
Urena initiated this action, with the assistance of counsel,
on June 3, 2022, and filed an amended complaint—the now
operative complaint—on February 1, 2023. On September 8,
2023, Defendants filed a motion for summary judgment. Dkt.
No. 42. On September 11, 2023, Urena, proceeding pro se,
filed a cross-motion for summary judgment. Dkt. No. 49.
LEGAL STANDARD
Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute
is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” WWBITV, Inc. v.
Vill. of Rouses Point, 589 F.3d 46, 49 (2d Cir. 2009). 6 A fact
is material if it “might affect the outcome of the suit under the
governing law,” and “[f]actual disputes that are irrelevant or
unnecessary [under the governing law] will not be counted.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
determining whether there is a genuine issue of material fact,
the Court must view all facts in the light most favorable to the
non-moving party. Holcomb v. Iona Coll., 521 F.3d 130, 132
(2d Cir. 2008). But where “opposing parties tell two different
stories, one of which is blatantly contradicted by the record,
so that no reasonable jury could believe it, a court should
not adopt that version of the facts for purposes of ruling on
a motion for summary judgment.” Scott v. Harris, 550 U.S.
372, 380 (2007).
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6 Unless otherwise indicated, case quotations
omit all internal citations, quotations, footnotes,
omissions, and alterations.
While “[t]he movant has the burden of showing that there
is no genuine issue of fact,” the non-moving party “is not
thereby relieved of [her] own burden of producing in turn
evidence that would support a jury verdict.” Anderson, 477
U.S. at 256. In other words, the non-moving party “must set
forth specific facts showing that there is a genuine issue for
trial” to defeat summary judgment. Id.; see also Crawford-El
v. Britton, 523 U.S. 574, 600 (1998) (“[I]f the [defendant] has
made a properly submitted motion [for summary judgment],
the plaintiff ... must identify affirmative evidence from which
a jury could find that the plaintiff has carried his or her
burden.”).
*3 Lastly, it is “well established that a court is ordinarily
obligated to afford a special solicitude to pro se litigants,
particularly where motions for summary judgment are
concerned.” Harris v. Miller, 818 F.3d 49, 57 (2d Cir. 2016).
Thus, “[c]ourts read the pleadings, briefs, and opposition
papers of pro se litigants ‘liberally and interpret them to
raise the strongest arguments that they suggest.’ ” Rivera v.
Goulart, No. 15-cv-2197, 2018 WL 4609106, at *2 (S.D.N.Y.
Sept. 25, 2018) (quoting McPherson v. Coombe, 174 F.3d 276,
280 (2d Cir. 1999)).
DISCUSSION
I. Excessive Force Claim
Urena first alleges that Shaw unlawfully used excessive force
when he sprayed him with a chemical agent, in violation of the
Fourteenth Amendment. Dkt. No. 19 (“Am. Compl.”) ¶¶ 39–
42. 7 Defendants respond that any use of force against Urena
was “objectively reasonable and justified,” and that, even,
assuming arguendo, that Shaw violated Urena's constitutional
rights, he is nevertheless entitled to qualified immunity. Dkt.
No. 45 (“Def. Br.”) at 4–7, 9–11. For the reasons that follow,
the Court denies both parties' summary judgment motions as
to this claim because a rational jury could find either that
Shaw's actions were objectively reasonable or unreasonable,
and because material, factual disputes exist that also preclude
summary judgment on qualified immunity grounds at this
time.
7 Urena brings his claim under 42 U.S.C. § 1983,
which imposes civil liability on individuals, acting
under color of state law, who deprive a plaintiff
of any federal rights. See Gomez v. Toledo, 446
U.S. 635, 640 (1980). “A pretrial detainee who
is subjected to excessive force may bring a claim
under § 1983.” Quinones v. Rollison, No. 18-
cv-1170, 2020 WL 6420181, at *3 (S.D.N.Y. Nov.
1, 2020).
A. Objective Reasonableness of Force
The right of pretrial detainees to be free from excessive force
is protected by the Due Process Clause of the Fourteenth
Amendment. United States v. Walsh, 194 F.3d 37, 47 (2d Cir.
1999); Kingsley v. Hendrickson, 576 U.S. 389, 398 (2015). 8
To prevail on an excessive force claim, a pretrial detainee
“must show only that the force purposely or knowingly used
against him was objectively unreasonable.” Kingsley, 576
U.S. at 396–97. When evaluating objective reasonableness,
courts must consider the “facts and circumstances of each
particular case.” Graham, 490 U.S. at 396. The Supreme
Court has also provided several “potentially relevant” factors
that “may bear on the reasonableness or unreasonableness of
the force used,” including: whether the amount of force was
proportionate to the need for the use of force; the extent of
the plaintiff's injury; whether an officer made efforts to limit
the amount of force; the “severity of the security problem
at issue”; whether the plaintiff was “actively resisting”; and
“the threat reasonably perceived by the officer.” Kingsley, 576
U.S. at 397.
8 While many excessive force claims invoke
the Fourth Amendment's prohibition against
unreasonable seizures or the Eighth Amendment's
ban on cruel and unusual punishments, Graham
v. Connor, 490 U.S. 386, 393–94 (1989), Urena's
claim is governed by the Fourteenth Amendment.
As a pretrial detainee, Urena is within the “legal
twilight zone” between arrest and conviction.
Wilson v. Spain, 209 F.3d 713, 715 (8th Cir. 2000).
The Fourteenth Amendment establishes his right
against excessive force because “[t]he touchstone
of due process” is the “protection of the individual
against arbitrary action of government.” Edrei v.
Maguire, 892 F.3d 525, 533 (2d Cir. 2018) (quoting
Wolff v. McDonnell, 418 U.S. 539, 558 (1974)).
Fourth and Eighth Amendment excessive force
cases are nonetheless instructive when evaluating
the scope of a pretrial detainee's rights. Hart v.
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Suffolk Cnty., No. 17-cv-5067, 2023 WL 5720075,
at *14 n.15 (E.D.N.Y. Sept. 5, 2023).
*4 Courts must make an objective reasonableness
determination from the perspective of a reasonable officer
on the scene without hindsight bias, and, in the context of
a correctional facility, they must consider the “legitimate
interests” officers have in managing a facility, which
include “preserv[ing] internal order and discipline” and
“maintain[ing] institutional security.” Id.; see Graham, 490
U.S. at 396–97 (“The calculus of reasonableness must
embody allowance for the fact that ... officers are often forced
to make split-second judgments—in circumstances that are
tense, uncertain, and rapidly evolving—about the amount
of force that is necessary in a particular situation.”). “Not
every push or shove, even if it may later seem unnecessary
in the peace of a judge's chambers, violates a[n inmate's]
constitutional rights.” Johnson v. Glick, 481 F.2d 1028, 1033
(2d Cir. 1973). Nonetheless, when exercising any force,
an officer must still show that the force was objectively
“necessary and proportionate to the circumstances.” Edrei,
892 F.3d at 540.
The use of pepper spray “constitutes a significant degree of
force.” Tracy v. Freshwater, 623 F.3d 90, 98 (2d Cir. 2010).
Accordingly, the Second Circuit has cautioned that pepper
spray “should not be used lightly or gratuitously against
an arrestee who is complying with police commands or
otherwise poses no immediate threat to the arresting officer.”
Id. Given the “variety of incapacitating and painful effects”
that pepper spray produces, id., courts must carefully consider
whether a detainee is “actively resisting” or poses a “threat
to the safety of officers or others” when the officer deploys
such force, Jones v. Treubig, 963 F.3d 214, 225 (2d Cir. 2020).
When considering an excessive force claim on summary
judgment, a court's role “is to determine whether a jury,
instructed as to the relevant factors, could reasonably find that
the force used was excessive.” Brown v. City of New York, 798
F.3d 94, 103 (2d Cir. 2015).
Here, Defendants argue that Shaw's use of the spray was
objectively reasonable, and therefore not excessive, under the
circumstances. See Def. Br. at 5. They contend that Urena
“provoked the incident” by spitting at Shaw, that Shaw only
used a two-second burst of spray in response, that the force
was necessary because Shaw “repeatedly refused to comply
with orders, yelled, and acted aggressively,” and that Urena's
resulting injuries were mild. Id. at 5–7. Defendants also
aver that Urena's “surprise attack” provoked a “split second
decision” by Shaw, which itself “was a reasonable reaction ...
in order to restore and maintain discipline.” Id. at 7. Thus,
they argue, Urena's excessive force claim fails as a matter of
law. Id.
As Defendants rightly note, it was Urena who provoked
Shaw's use of the spray when he intentionally spat in Shaw's
direction. Although Urena appears to contest Defendants'
characterization of his abrupt spitting, see Pl. Br. at 6, the
video evidence clearly corroborates Defendants' depiction of
these events, see DOC Footage at 18:10:58–18:11:03. See
also Scott v. Harris, 550 U.S. at 380. Under New York
law, the act of spitting in someone's face may constitute
civil assault and civil battery. D.K. by L.K. v. Teams, 260 F.
Supp. 3d 334, 364 (S.D.N.Y. 2017); see also United States
v. Delis, 558 F.3d 177, 183–84 (2d Cir. 2009) (holding
that “offensive touching,” which can include “spitting on
another,” constitutes simple assault, as criminalized by 18
U.S.C. § 113(a)(5)). The act of spitting may also reasonably
require the use of some force “to control [a] plaintiff from
committing further [such] acts.” Bonet v. Shaw, 669 F. Supp.
2d 300, 304 (W.D.N.Y. 2009). 9 Thus, the use of some
force may, in certain circumstances, be consistent with the
legitimate law enforcement objectives of preventing further
spitting and “preserv[ing] internal order and discipline.” Bell
v. Wolfish, 441 U.S. 520, 547 (1979). Defendants make this
argument here, maintaining that one burst of the spray was a
proportionate attempt “to stop the assault, restore order, and
maintain discipline.” See Def. Br. at 5. 10
9 For example, some courts have held that if a
detainee spits at an officer, the officer may use
a “spit mask” or “spit veil” to prevent repeated
violations. See, e.g., Baltas v. Rivera, No, 19-
cv-1043, 2020 WL 6199821, at *16 (D. Conn. Oct.
22, 2020) (also holding that “there are no reported
cases in this circuit finding a constitutional right
preventing” an officer's use of a spit veil).
10 Defendants cite several district court decisions for
the proposition that “a correction officer's use of
pepper spray on an inmate who refuses to comply
with orders in [an effort] to maintain or restore
discipline and stop an assault is reasonable.” Def.
Br. at 6. But each of those cases is distinguishable
from this one in terms of the danger presented to
the officer. In Anderson v. Darby, for example, a
confined plaintiff “proceeded to grab [an officer's]
right arm and pulled [him] into the feeding slot,”
ignoring “loud verbal commands” to release the
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officer before the officer deployed a chemical
spray. No. 15-cv-0635, 2017 WL 933085, at *2
(E.D.N.Y. Feb. 13, 2017). Similarly, in Frost v.
Davis, a plaintiff “abruptly” stood up and moved
toward officers as they were exiting his cell and
“pushe[d] into” an officer's shield before being
tackled and sprayed with a chemical agent. No.
17-cv-8418, 2019 WL 4512620, at *3 (S.D.N.Y.
Sept. 18, 2019); see also Vazquez v. Spear,
No. 12-cv-6883, 2014 WL 3887880, at *1, 4–
5 (S.D.N.Y. Aug. 5, 2014) (noting the plaintiff's
active, physical resistance to being handcuffed and
the officer's subsequent use of de minimis force to
place the plaintiff in handcuffs). Defendants have
provided no case more akin to this one—where
an officer used chemical spray after an inmate
spat at the officer from inside a locked cell. See
Lewis v. Clarkstown Police Dep't, No. 11-cv-2487,
2014 WL 1364934, at *5 (S.D.N.Y. Mar. 31,
2014) (rejecting the argument that chemical spray
“is always permitted simply because a detainee,
confined to his cell, is noncompliant”).
*5 A reasonable jury might agree, but, weighing the
following countervailing factors, it also might not.
First, a jury might be swayed by the fact that Urena was locked
by himself in an enclosed, single-person intake cell when he
spat at Shaw, who stood several feet away. See DOC Footage
at 18:10:58–18:11:03. Unlike cases where chemical spray is
deployed to break up fights or the environment otherwise
presents a serious risk to officer safety, see, e.g., Quinones,
2020 WL 6420181 at *2, Defendants here faced no similar
threat, see Soto v. Bautista, 2023 WL 2624785, at *4 (5th
Cir. 2023) (“[W]e are unconvinced that spitting a single time
poses more than a de minimis risk to an officer's safety.”).
A jury could thus find that Urena, spitting from within a
locked enclosure, did not pose a serious “threat to the safety
of officers or others.” Jones, 963 F.3d at 225; see also Tracy,
623 F.3d at 98 (“conclud[ing] that a reasonable juror could
find that the use of pepper spray deployed mere inches away
from the face of a defendant already in handcuffs and offering
no further active resistance constituted an unreasonable use
of force” and denying summary judgment).
Second, Shaw deployed the spray immediately, without
any attempt to deescalate the situation or use any other
strategy to address Urena's actions. Recognizing that pepper
spray “should not be used lightly or gratuitously” against
individuals who pose “no immediate threat,” Tracy, 623 F.3d
at 98, Shaw could have verbally warned Urena that any
successive spitting would be met with chemical spray. Or he
could have taken a few steps back and reprimanded Urena
before resorting to the use of the spray. Although Shaw
had a legitimate interest in preventing further spitting and
maintaining order and discipline, a reasonable jury could
find that—by immediately deploying the “incapacitating and
painful” chemical spray, Tracy, 623 F.3d at 98—Shaw failed
to reasonably “temper or ... limit the amount of force” used
against Urena, Kingsley, 576 U.S. at 397. See also Brown,
798 F.3d at 102–03 (noting “the availability of a much less
aggressive technique” for obtaining compliance); Soto, 2023
WL 2624785, at *4 (finding that force against a plaintiff
who spat once at an officer reflected “an impulsive, violent
response to perceived disrespect” rather than an objectively
reasonable response).
Third, despite Urena's relatively short-lived injuries, even a
single burst of chemical spray can constitute more than a
de minimis use of force. See, e.g., Javier v. Russo, No. 21-
cv-7097, 2023 WL 5532468, at *2, *7 (S.D.N.Y. Aug. 28,
2023) (rejecting defendant's argument that pepper spraying a
plaintiff locked in his cell was a de minimis use of force);
Jones v. Wagner, No. 20-cv-475, 2022 WL 1525134, at *2,
*6 (D. Conn. May 13, 2022) (denying summary judgment
where a defendant “deployed a single burst of chemical agent”
in a plaintiff's face); Mobley v. Mallow, No. cv-18-3515,
2019 WL 6217881, at *6 (D. Md. Nov. 21, 2019) (“Use
of a chemical agent against an inmate confined in a ‘strip
cage’ is a nontrivial use of force.”); Tracey, 623 F.3d at 98.
Here, Shaw deployed the chemical spray into Urena's face
from several feet away, and Urena's reaction—covering his
eyes, retreating to the corner of his cell, and stumbling to
the floor—evinces a painful experience. See DOC Footage at
18:10:58–18:12:13. Further, Urena remained on the floor for
approximately ten minutes before officers removed him from
the cell to be decontaminated. Id. at 18:11:24–18:22:35; Pl.
Tr. at 34. A reasonable jury could therefore find that Shaw
used more than de minimis force against Urena. See Feliciano
v. Thomann, 747 F. App'x 885, 887 (2d Cir. 2019); Edrei, 892
F.3d at 540 (noting the “longstanding test” for excessive force
claims that “force must be necessary and proportionate to the
circumstances”).
*6 Ultimately, the “assessment of a jury is needed,”
Brown, 798 F.3d at 103, as to whether Shaw's use of force
was proportionate to Urena's provocation. At the summary
judgment stage, even when “most of the facts concerning the
application of force are undisputed,” the factual determination
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of excessiveness is left to a jury, “whose collective common
sense, informed by their life experiences, may well exceed”
that of this Court. Brown, 798 F.3d at 103. In this case, a
rational jury could conclude that Shaw's decision to deploy
chemical spray was objectively reasonable or unreasonable
under the circumstances.
B. Qualified Immunity
Shaw next argues that he is entitled to qualified immunity,
thereby shielding him from liability at this stage in the
litigation. The Court disagrees. The doctrine of qualified
immunity serves to protect government officials from civil
liability for actions taken under color of law. Pearson v.
Callahan, 555 U.S. 223, 231 (2009). In assessing whether
officials are entitled to qualified immunity, courts conduct
a two-step analysis, considering “(1) whether the facts
presented make out a violation of a constitutional right; and
(2) whether the right at issue was clearly established when
it was allegedly violated.” Torcivia v. Suffolk Cnty., 17 F.4th
342, 367 (2d Cir. 2021). While the first inquiry necessary
overlaps with whether there was a violation of Urena's
Fourteenth Amendment rights, the second inquiry also “tends
to converge with the first [inquiry] in excessive force cases,
with the question ultimately being whether, in the particular
circumstances faced by the officer, a reasonable officer would
believe that the force employed was lawful.” Weather v. City
of Mount Vernon, 474 F. App'x 821, 824 (2d Cir. 2012);
see Saucier v. Katz, 533 U.S. 194, 210 (2001) (Ginsburg,
J., concurring) (acknowledging that “paradigmatically, the
determination of [officer] misconduct in excessive force cases
and the availability of qualified immunity both hinge on the
same question”). 11
11 “Even where this convergence occurs, however,
courts should” still address the “clearly
established” prong. Cowan ex rel. Est. of Cooper
v. Breen, 352 F.3d 756, 764–65 n.7 (2d Cir. 2003)
(noting that “genuine issues of material fact” may
preclude summary judgment on “both the question
[of] whether [a defendant] used excessive force and
the question [of] whether he reasonably believed
that his use of force was lawful”); see Pearson, 555
U.S. at 236.
As discussed above, there is an open factual question as to
whether Shaw violated Urena's constitutional rights. The first
prong of the qualified immunity test thus does not foreclose
Urena's excessive force claim. The Court therefore turns to
whether Shaw met his burden of establishing that the right to
be free of the force at issue here was not clearly established.
Lewis, 2014 WL 1364934, at *9; see Pearson, 555 U.S.
at 227 (holding that, where a government official violates
a plaintiff's constitutional rights, the doctrine of qualified
immunity nonetheless shields that official from liability if “it
was not clearly established at the time ... that [the officer's]
conduct was unconstitutional”).
“A right is clearly established if the contours of the right are
sufficiently clear that a reasonable official would understand
that what he is doing violates that right.” McKinney v. City of
Middletown, 49 F.4th 730, 738 (2d Cir. 2022). “This requires
that controlling authority or a robust consensus of cases of
persuasive authority have recognized the right at issue.” Id.
at 738–39. In excessive force cases, the ultimate question
becomes “whether, in the particular circumstances faced by
the officer, a reasonable officer would believe that the force
employed was lawful.” Weather, 474 F. App'x at 824.
*7 As relevant here, the Second Circuit has held that it is
“well established” that “the use of entirely gratuitous force is
unreasonable and therefore excessive.” Tracy, 623 F.3d at 99
n.5; see Jones, 963 F.3d at 226. It is also “beyond doubt that
any reasonable ... officer would know that the use of ... pepper
spray[ ] constitutes significant force,” Jones, 963 F.3d at 226.
In light of such precedent, “no reasonable officer could ...
believe[ ] that he [is] entitled to use pepper spray gratuitously
against a restrained and unresisting arrestee.” Tracy, 623 F.3d
at 99 n.5; see also Taylor v. Nieves, No. 17-cv-7360, 2020 WL
7028907, at *3 (S.D.N.Y. Nov. 30, 2020) (“Second Circuit
precedent clearly disallows the gratuitous use of pepper spray
against restrained individuals.”).
The Supreme Court, moreover, has reiterated that “the Due
Process Clause protects a pretrial detainee from the use of
excessive force that amounts to punishment,” which can
include force that is not “rationally related to a legitimate
nonpunitive governmental purpose” or that “appear[s]
excessive in relation to that purpose.” Kingsley, 576 U.S. at
398; see Graham, 490 U.S. at 395 n.10 (“It is clear ... that the
Due Process Clause protects a pretrial detainee from the use
of excessive force that amounts to punishment.”). Courts in
this Circuit regularly find unconstitutional the intentional use
of force that serves no legitimate, nonpunitive purpose. See
Moran v. Tesei, No. 19-cv-722, 2023 WL 3570670, at *12 (D.
Conn. May 19, 2023) (collecting cases); Sanders v. Garden
City Police Dep't, No. 09-cv-2393, 2015 WL 5518589, at *7
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n.2 (E.D.N.Y. Sept. 16, 2015) (noting that an officer's use of
force would be excessive if the conduct “serv[ed] no purpose
other than to inflict discomfort and pain”).
The question of “whether a reasonable official would
reasonably believe his conduct did not violate a clearly
established right[ ] is a mixed question of law and fact.”
Kerman v. City of New York, 374 F.3d 93, 109 (2d Cir.
2004). Thus, although a qualified immunity defense “can be
disposed of by summary judgment where possible,” summary
judgment is not appropriate “when there are material factual
disputes.” Stephenson v. Doe, 332 F.3d 68, 76–77 (2d Cir.
2003). Indeed, the Second Circuit has cautioned that a jury
must weigh in where excessive force and qualified immunity
issues “overlap” due to material facts in dispute. Id. at 81.
When this occurs, “the jury should decide these issues on
special interrogatories.” Warren v. Dwyer, 906 F.2d 70, 76 (2d
Cir. 1990); see Zellner v. Summerlin, 494 F.3d 344, 368 (2d
Cir. 2007); Oliveira v. Mayer, 23 F.3d 642, 650 (2d Cir. 1994).
“[A] judicial determination as to what a reasonably competent
officer would conclude in a particular situation requires
an objective factual determination as to the mindset of
reasonably competent officers.” Brown v. City of New York,
No. 13-cv-1018, 2016 WL 1611502, at *6 (S.D.N.Y. Apr.
20, 2016), aff'd, 862 F.3d 182 (2d Cir. 2017). As the
Circuit has explained, “it is the jury's province to resolve
the reasonableness of an officer's perception of the facts
that confronted him,” and “those same facts ... can also
sometimes be critical in deciding the [clearly-established step
of a court's] qualified immunity analysis.” Jones, 963 F.3d at
231.
As noted earlier, although video footage captures the incident
in question, there remain disputed factual questions—such
as the degree of risk that Urena posed to Shaw or others
and whether Shaw deployed the spray for a legitimate
or punitive purpose—that are material to whether it was
objectively reasonable for Shaw to believe his use of force
was lawful under the circumstances. Thus, the “assessment
of a jury is needed in this case,” Brown, 798 F.3d at 103,
to determine, among other things, whether Shaw's force was
“entirely gratuitous,” Ross v. Willis, No. 16-cv-6704, 2021
WL 3500163, at *14 (S.D.N.Y. Aug. 9, 2021), not “rationally
related to a legitimate nonpunitive governmental purpose,”
Kingsley, 576 U.S. at 398, or—if rationally related to a
legitimate nonpunitive governmental purpose—“excessive in
relation to that purpose,” id.
*8 Other courts in this district have concluded as much in
similar circumstances. For example, in Wiggan v. NYC Dep't
of Corrs., which concerned an officer's use of pepper spray
on an inmate who had disobeyed orders but was confined
in a cell, the court denied summary judgment because a
factfinder might infer that the officer's use of the spray
was “in retribution for plaintiff's refusal to obey his order
and the disrespect he showed” rather than “in a good-faith
effort to maintain or restore discipline.” No. 12-cv-1405,
at *1, *27 (S.D.N.Y. Aug. 21, 2014) (ECF No. 46), report
and recommendation adopted, 2014 WL 4631456 (S.D.N.Y.
Sept. 16, 2014). In Ross v. Willis, moreover, the court held
that a defendant officer who pepper sprayed an inmate was
not entitled to summary judgment on the basis of qualified
immunity because there was a factual question as to whether
the inmate, who had been confined to his cell, physically
resisted attempts to be handcuffed. No. 16-cv-6704, 2021 WL
3500163, at *13–14 (S.D.N.Y. Aug. 9, 2021).
Accordingly, the Court denies the parties' cross-motions
for summary judgment as to Urena's excessive force claim
against Shaw.
II. Deliberate Indifference Claims
Urena next argues that Laguerre and Ortiz failed to intervene,
“leaving [him] naked inside of a search pen for a prolonged
period and duration.” Pl. Br. at 1. Urena acknowledges that
“there was nothing [Laguerre and Ortiz] could do” about
Shaw's use of chemical spray in the moment, Pl. Br. at 1, but
he nonetheless alleges that the officers acted with “deliberate
indifference” by “knowingly and deliberately” leaving him
alone “to suffer the effects of the spray, rather than rending
him aid,” Am. Compl. ¶ 46. 12 Urena thus brings a claim
for deliberate indifference to his conditions of confinement,
which can include officers depriving detainees of the right to
receive medical care, among other basic human needs. See
Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012).
12 As Defendants correctly note, Urena has
abandoned the specific claim that Laguerre and
Ortiz failed to intervene in the alleged use of
excessive force. See Lipton v. Cnty. of Orange, 315
F. Supp. 2d 434, 446 (S.D.N.Y. 2004); Dkt. No. 51
(“Def. Reply Br.”) at 5–6 & n.6. But Defendants
wrongly contend that the Court “need not” consider
claims against Laguerre and Ortiz, because,
contrary to their assertions, id., the amended
complaint does assert a deliberate indifference
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claim, see Am. Compl. ¶ 46 (“Laguerre and Ortiz
knowingly and deliberately left Plaintiff naked and
alone to shame him, and then left him a second
time to suffer the effects of the spray, rather than
rendering him aid, thereby displaying deliberate
indifference to Plaintiff's rights.”).
A pretrial detainee's claim of unconstitutional conditions of
confinement is governed by the Due Process Clause of the
Fourteenth Amendment. Darnell v. v. Pinheiro, 849 F.3d 17,
29 (2d Cir. 2017). To succeed on a deliberate indifference
claim alleging a failure to provide medical treatment, a
detainee first must show “that the injury or illness caused
a serious medical condition.” Ross, 2021 WL 3500163, at
*17. In particular, a “serious medical condition is generally
understood to be one that may produce death, degeneration,
or extreme pain.” Id.; Johnson v. Schiff, No. 17-cv-8000,
2019 WL 4688542, at *14 (S.D.N.Y. Sept. 26, 2019) (noting
that a condition is sufficiently serious if a plaintiff “suffer[s]
permanent effects” or “lasting physical injuries”). Second, a
plaintiff must show that “the defendant acted with deliberate
indifference toward that medical condition, so as either to
cause it or expose the plaintiff to risk from it.” Ross, 2021 WL
3500163, at *17. To establish deliberate indifference under
the Fourteenth Amendment, a plaintiff needs to show that “the
defendant-official acted intentionally to impose the alleged
condition, or recklessly failed to act with reasonable care
to mitigate the risk that the condition posed ... even though
the defendant-official knew, or should have known, that the
condition posed an excessive risk to health or safety.” Darnell,
849 F.3d at 35. This second element is referred to as the “mens
rea prong,” and “is defined objectively.” Id.
*9 “In cases of delayed medical treatment, ... the Court
should focus on the challenged delay or interruption in
treatment rather than the prisoner's underlying medical
condition alone.” Williams v. City of New York Dep't of Corr.,
2020 WL 3893929, at *4 (S.D.N.Y. July 10, 2020) (emphasis
omitted). Here, after Shaw sprayed Urena, Defendants let
Urena lie on the floor for approximately ten minutes before
officers in decontamination gear entered his cell and escorted
him to be decontaminated and treated. These actions do not
constitute an objective deprivation of Urena's right to due
process.
First, numerous judges in this district have routinely held
that the “temporary effects of chemical spray”—while
“undoubtedly uncomfortable and painful”—“do not rise to
the level of producing death, degeneration, or extreme pain”
as is required to establish a deliberate indifference claim.
Holmes v. City of New York, No. 17-cv-3874, 2018 WL
4211311, at *7 (S.D.N.Y. June 30, 2022); see, e.g., Lewis,
2014 WL 1364934, at *7 (rejecting a deliberate indifference
claim based on the effects of chemical gel as a matter of
law because “the temporary discomfort caused by pepper
spray or mace does not constitute a sufficiently serious
injury”); Ross, 2021 WL 3500163, at *18 (dismissing a
deliberate indifference claim based on the deployment of
pepper spray); Johnson, 2019 WL 4688542, at *14 (same);
Rodriguez v. Cohall, No. 21-cv-1810, 2022 WL 1228411, at
*4–5 (S.D.N.Y. Apr. 26, 2022) (same).
Urena asserts that the chemical spray caused his whole body
to “fe[el] like it was on fire,” that he “was having trouble
breathing,” and that his eyes “felt blurry.” Pl. Tr. at 32.
But, as Defendants note and Urena does not dispute, he
was decontaminated ten minutes later and received additional
treatment that same day. Def. 56.1 Statement ¶ 14; Pl. Tr.
at 32, 34. Urena was also provided pain medication and
acknowledges that his pain subsided after twenty-four hours.
Id. To be sure, the deployment of chemical spray into Urena's
face appears to have resulted in significant pain. See DOC
Footage at 18:10:58–18:12:13. But there is no evidence that
he “suffered permanent effects or serious injury from the ...
spray” sufficient to establish a deliberate indifference claim.
Johnson, 2019 WL 4688542, at *14.
Second, even if Urena's medical needs resulting from the
chemical spray had been sufficiently serious to meet prong
one of this claim, he nonetheless fails to raise a genuine
factual dispute concerning whether Laguerre and Ortiz
acted recklessly in their temporary denial of his medical
care. No evidence has been presented suggesting that the
ten-minute delay risked serious damage to his health or
worsened any medical condition, and the short duration of
the delay militates against a finding of objective recklessness.
Numerous courts in this circuit have similarly held that
temporary delays in treatment after a chemical spray incident
do not, without more, establish deliberate indifference. See,
e.g., Liverpool v. Davis, 442 F. Supp. 3d 714, 737 (S.D.N.Y.
2020) (rejecting a deliberate indifference claim, in the Eighth
Amendment context, where a plaintiff was forced to wait
three hours to receive medical attention after being exposed
to “a chemical irritant akin to pepper spray”); Blond v. City
of Schenectady, No, 10-cv-0598, 2010 WL 4316810, at *5
(N.D.N.Y. Oct. 26, 2010) (rejecting an inadequate medical
care claim whether plaintiff “was sprayed with pepper spray
and [ ] was not permit[ed] to rinse his eyes for thirty to sixty
minutes”). Further, the record does not establish that “the
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delay in treatment caused his condition to worsen,” nor does
Urena challenge “the reasonableness of the medical treatment
that he eventually received.” Liverpool, 442 F. Supp. 3d
at 737. Accordingly, the Court grants Defendants' summary
judgment motion as to Urena's deliberate indifference claims
against Laguerre and Ortiz. 13
13 In light of this ruling, the Court need not
determine whether the officers are entitled to
qualified immunity. See Posr v. City of New York,
No. 10-cv-2551, 2013 WL 2419142, at *10 n.8
(S.D.N.Y. June 4, 2013), aff'd sub nom. Posr v.
Ueberbacher, 569 F. App'x 32 (2d Cir. 2014)
(“Because [the defendant] did not violate [the
p]laintiff's Fourteenth Amendment rights, there is
no need to consider if [the defendant] is entitled to
qualified immunity.”).
III. NYCAC Claim
*10 Finally, Urena brings a claim against Shaw, Laguerre,
Ortiz, and the City of New York to enforce the right
established by the New York City Administrative Code
(“NYCAC”) § 8-802 “to be secure ... against unreasonable
searches and seizures, and to be secure against the use of
excessive force regardless of whether such force is used in
connection with a search or seizure.” Defendants state, and
Urena does not dispute, that he failed to file a notice of
claim related to the incident underlying this lawsuit. Def.
56.1 Statement ¶ 16; Pl. Br. at 11. Defendants thus argue that
Urena's claim fails because he did not serve a notice of claim
in compliance with New York General Municipal Law § 50-
e. See Def. Br. at 15–16. Urena asks the Court to extend the
deadline for service of a notice of claim—if required—in light
of his pro se status. Pl. Br. at 11.
The Court need not address the notice of claim issue because,
even assuming Urena had not been required to provide notice,
his claim under New York City Administrative Code §§
8-801 through 8-807 would fail. Pursuant to § 8-803, “[a]
covered individual” acting under color of law “is liable”
when he “subjects or causes to be subjected ... any other
natural person to the deprivation of any right that is created,
granted, or protected by section 8-802.” NYCAC § 8-803(a).
The provision also makes “[t]he employer of a covered
individual” liable “based upon the conduct of such covered
individual.” Id. § 8-803(b). Under § 8-801, “[t]he term
‘covered individual’ means (i) an employee of the police
department or (ii) a person who is appointed by the police
commissioner as a special patrolman.” Id. § 8-801. Urena
does not contend that any of the individual officers were
employed by the “police department” or were appointed as
“special patrolm[e]n.” Id. To the contrary, Urena asserts that
the officers are “members of the New York City Department
of Correction.” Am. Compl. ¶ 1. Therefore, Shaw, Laguerre,
and Ortiz are not “covered individual[s]” under the code, and
cannot be held liable under § 8-803. Because these officers
are not “covered individual[s],” the City also cannot be held
liable as an “employer of a covered individual.” NYCAC §
8-803. The Court thus grants Defendants summary judgment
as to Urena's claim under NYCAC §§ 8-801 through 8-807.
CONCLUSION
For the foregoing reasons, Defendants' motion for summary
judgment is denied with respect to Urena's excessive force
claim against Defendant Shaw under 42 U.S.C. § 1983, and
granted as to all other claims. Urena's motion for summary
judgment is denied in its entirety.
Because Defendants prevail on all claims against Laguerre,
Ortiz, and the City of New York, those Defendants are
dismissed from this action and the Clerk of Court is
respectfully directed to amend the caption accordingly.
The Clerk of Court is also respectfully directed to terminate
the motion pending at Dkt. No. 42 and to mail a copy of this
Opinion and Order to Urena.
No later than October 10, 2024, Urena shall notify the Court
whether he seeks counsel to represent him at trial.
All Citations
Not Reported in Fed. Supp., 2024 WL 4149182
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Urena v. City of New York
© 2025 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
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Urena v. City of New York
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Urena v. City of New York
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Campbell v. City of Yonkers, Not Reported in Fed. Supp. (2023)
2023 WL 4867459
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 4867459
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Eric CAMPBELL, individually and as the Administrator
d.b.n. of the Estate of Erick Campbell; Michael
Campbell, as the Administrator of the Estate of
Robert Campbell; and Aida Campbell, Plaintiffs,
v.
CITY OF YONKERS; Police Officer Timothy
Cooper; Police Officer Thomas Braig; Police
Officer Adam Walencik; Detective Thomas Marello;
Sergeant Mark Wissner; Detective Brian Menton;
Detective Terence Malone; Sergeant Joseph
Barosa; Detective Michael McGee; Agent Brendan
Kenney; Agent Andrew Fisher; Agent Daniel
Conlon; and Agent Daniel McKenna, Defendants.
Eric Campbell, individually and as the Administrator
d.b.n. of the Estate of Erick Campbell; Michael
Campbell, as the Administrator of the Estate of
Robert Campbell; and Aida Campbell, Plaintiffs,
v.
United States of America, Defendant.
19 CV 2117 (VB), 19 CV 9444 (VB)
|
Signed July 31, 2023
Attorneys and Law Firms
Uri Nazryan, Philip Michael Hines, Held & Hines, LLP,
Brooklyn, NY, for Plaintiffs Aida Campbell, Eric Campbell,
Michael Campbell in 19 CV 2117, 19 CV 9444.
Rory Carleton McCormick, Corporation Counsel, City of
Yonkers, Yonkers, NY, for Defendants City of Yonkers, Police
Officer Timothy Cooper, Police Officer Thomas Braig in 19
CV 2117.
Zachary Bannon, DOJ-USAO, New York, NY, Ilan Stein,
U.S. Attorney's Office, New York, NY, for Defendant in 19
CV 9444.
OPINION AND ORDER
Briccetti, United States District Judge:
*1 These consolidated actions arise out of the attempted
arrest and fatal shooting of Erick Campbell during a
surveillance operation conducted by federal and local law
enforcement officers. Plaintiffs, members of Campbell's
family and the administrator of his estate, 1 bring federal
and related state law claims against the law enforcement
officers involved in the operation, the City of Yonkers, and
the United States of America, pursuant to 42 U.S.C. § 1983
and Monell v. Department of Social Services, 436 U.S. 658
(1978) (“Monell”), Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (“Bivens”),
and the Federal Tort Claims Act (“FTCA”).
1 Plaintiff Eric Campbell is Campbell's son and
the administrator of his estate. Plaintiff Aida
Campbell is Campbell's mother. Robert Campbell,
Campbell's father, was a plaintiff in these cases,
both individually and as the original administrator
of Campbell's estate, before his death in September
2021. Michael Campbell was then substituted as
a plaintiff, in his capacity as the administrator of
Robert Campbell's estate.
Now pending are four motions for summary judgment,
filed by (i) Federal Bureau of Investigation (“FBI”) Special
Agents Brendan Kenney, Andrew Fisher, and Daniel Conlon;
Supervising Special Agent Daniel McKenna (the “FBI
defendants”); and the United States (together with the FBI
defendants, the “federal defendants”) (Doc. #169 and FTCA
Doc. #89); 2 (ii) Tarrytown Police Department (“TPD”)
Detective Michael McGee and Sergeant Joseph Barosa
(the “Tarrytown defendants”) (Doc. #174); (iii) Yonkers
Police Department (“YPD”) Officers Timothy Cooper,
Thomas Braig, and Adam Walencik; Sergeant Mark Wissner;
Detectives Thomas Marello and Brian Menton; and the City
of Yonkers (the “Yonkers defendants”) (Doc. #178); and (iv)
Westchester County Police Department (“WCPD”) Detective
Terence Malone (Doc. #186). 3
2 Unless otherwise noted, “Doc. #__” refers to
documents filed in the lead case, 19 Civ. 2117;
“FTCA Doc. #__” refers to documents filed in the
member case, 19 Civ. 9444.
3 The individual defendants who are not FBI
agents—Barosa, Braig, Cooper, Malone, Marello,
McGee, Menton, Walencik, and Wissner—are
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Campbell v. City of Yonkers, Not Reported in Fed. Supp. (2023)
2023 WL 4867459
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collectively referred to herein as the “local police
defendants.”
For the following reasons, the federal defendants’ and the
Yonkers defendants’ motions are GRANTED IN PART and
DENIED IN PART, and the Tarrytown defendants’ and
Malone's motions are GRANTED.
The Court has subject-matter jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1367.
BACKGROUND
The Court presumes the parties’ familiarity with the factual
allegations and procedural history of these actions, including
the Court's Opinion and Order dated September 15, 2020,
which ruled on the federal defendants’ and Malone's motions
to dismiss. (Doc. #107 and FTCA Doc. #34 (the “MTD
Decision”)). 4 Accordingly, the Court summarizes below
only the relevant background, as reflected in the parties’
memoranda of law, statements of undisputed material facts
pursuant to Local Civil Rule 56.1, and supporting declarations
and exhibits.
4 The operative pleadings in these consolidated
actions are plaintiffs’ October 11, 2019, complaint
filed against the United States (FTCA Doc. #1
(“Compl.”)), and plaintiffs’ November 4, 2019,
second amended complaint, filed against all other
named defendants (Doc. #67 (“SAC”)).
I. The Task Force
*2 When the events relevant to this action occurred, the
FBI defendants and three of the local police defendants,
Marello, Menton, and Malone, were members of the FBI
Westchester County Safe Streets Gang and Violent Crime
Task Force, Squad C-26 (the “task force”). Marello, Menton,
and Malone were formally deputized and assigned to serve as
Task Force Officers (“TFOs”), pursuant to Memorandums of
Understanding between the FBI and their respective agencies.
(Doc. #187-3).
The other individual defendants were not members of the task
force. However, they agreed to assist with the surveillance
operation, at the request of Kenney and Menton. 5
5 The individual defendants are collectively referred
to herein as the “team.”
II. The Surveillance Operation
In the month before the surveillance operation, the task force
was investigating two bank robberies, which occurred at a
Chase Bank in Tarrytown, New York, on November 13, 2017,
and a Chase Bank in Elmsford, New York, on December 7,
2017. During both robberies, an unknown individual wore a
dark mask, displayed a firearm, and fled the scene in a stolen
vehicle.
The getaway car in the Tarrytown robbery was discovered
by the FBI on November 20, 2017. The car was apparently
abandoned and bore New York license plates registered to a
different vehicle.
On the night of December 14, 2017, members of the
Greenburgh Police Department (“GPD”) located a stolen
Oldsmobile sedan on a residential street in Yonkers, New
York, believed to be the getaway car from the Elmsford
robbery. A GPD detective notified Kenney. They decided
GPD would maintain surveillance of the vehicle overnight
and the task force would relieve GPD in the morning.
During the night, task force members including Kenney,
Fisher, McKenna, Marello, and Menton, discussed a plan to
surveil the vehicle and to arrest any individual who entered it
for possession of a stolen vehicle. Kenney was designated the
leader of the operation.
Around 6:00 a.m. on December 15, Fisher and Marello
took over surveillance from GPD, as planned. Kenney then
requested assistance from other task force members. In
addition, Kenney asked Menton to request backup from YPD,
Menton's home agency. Menton called Wissner, who led
YPD's plainclothes pattern crimes unit, to ask if Wissner
had any officers available to assist with the operation.
Three members of the unit—Braig, Cooper, and Walencik
—agreed to provide the requested backup, as did Wissner
himself. Barosa and McGee, who led TPD's investigation of
the Tarrytown robbery, also assisted with the operation at
Kenney's request.
The team members arrived at the scene at various times that
morning and afternoon. Upon arrival, they were briefed by
Kenney or Menton, who explained they were surveilling a
vehicle used in an armed bank robbery and the person who
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entered the vehicle might have a gun. Team members were
given FBI radios for communicating during the operation.
Early that afternoon, Fisher obtained a warrant to install a
GPS tracking device on the vehicle. FBI agents installed and
turned on the device shortly thereafter. But because Kenney
had a “hunch” the subject was going to rob a third Chase
Bank location on December 15, the team planned to continue
surveillance until around 6:00 p.m., when most banks in the
area closed. (Doc. #197-9 (“Kenney Dep.”) at 50). 6 If the
subject did not show up that evening, the task force would
monitor the vehicle via the GPS device.
6 Citations to “Dep. at __” refer to the page number
at the top right-hand corner of each deposition
transcript page.
*3 Around 3:50 p.m., Marello radioed that a man, wearing
dark clothing and holding a bag, was approaching the subject
vehicle.
The man—identified after the shooting as Erick Campbell
—entered the vehicle through the front passenger side door,
placed a duffel bag inside, and started the engine. He then
exited the vehicle from the driver's side door and began
clearing snow from the vehicle. After Campbell reentered the
vehicle, Kenney directed the team to converge.
Kenney positioned his unmarked law enforcement vehicle
a few inches behind the subject vehicle, while Malone
approached from the front in an unmarked rental vehicle. Both
then exited their vehicles, with guns drawn. Soon thereafter,
Braig, accompanied by Cooper, pulled his unmarked vehicle
up alongside the driver's side of the subject vehicle. Other
team members parked their own unmarked vehicles nearby
and approached on foot, with weapons drawn. The team
announced themselves as “police” and shouted at Campbell
to “turn off the car,” “get out of the car,” and “show me your
hands.” (Kenney Dep. at 111; Doc. #197-3 (“Malone Dep.”)
at 129–30; Doc. #197-5 (“Braig Dep.”) at 137; Doc. #197-6
(“Menton Dep.”) at 91; Doc. #197-12 (“Barosa Dep.”) at 80).
When the team converged, Campbell tried to drive away. As
Campbell began pulling away from the curb, Braig's vehicle
collided with Campbell's vehicle and pushed it back between
Kenney's and Malone's vehicles. Campbell moved the subject
vehicle back and forth several times to try to flee. However,
Kenney repeatedly rammed into the vehicle to keep it wedged
between Malone's vehicle and his own, until Campbell's
vehicle became disabled.
The parties disagree about what happened next.
Defendants claim Campbell reached over to the passenger
seat, picked up what appeared to be a black handgun (but was
later determined to be a replica), and pointed it toward one or
more officers.
According to Marello, as he ran up to the passenger side
of the vehicle from the rear, he saw Campbell reach over
to the passenger seat and pick up the replica gun. Marello
testified he shouted “gun” several times to warn the other team
members. (Doc. #197-15 (“Marello Dep.”) at 90). He then
moved behind Braig's vehicle after hearing another officer
yell “watch the crossfire” and realizing he was at risk of being
shot by or shooting other officers. (Id. at 92–97).
Meanwhile, Cooper was in the passenger seat of Braig's
vehicle, near the driver's side of the subject vehicle and
approximately three to four feet away from Campbell. Cooper
testified he saw Campbell “reach down to the passenger
side interior of the floorboard,” heard someone yell “he's
got a gun,” and then saw Campbell “pull up with a gun in
his right hand.” (Doc. #197-4 (“Cooper Dep.”) at 133–37,
143–44). Cooper further testified he saw Campbell point the
replica gun toward the front passenger side of the vehicle,
and believed Campbell “intend[ed] to shoot those officers on
the sidewalk.” (Id. at 143). “A second or two” later, without
warning anyone he was going to shoot, Cooper fired his own
weapon at Campbell's chest. (Id. at 140). Cooper fired sixteen
rounds, the capacity of his weapon. Cooper testified he kept
firing until he was out of ammunition, even though he was
“fairly certain” he had hit Campbell, because Campbell “was
still moving and still had a gun in his hand.” (Id. at 144–47).
*4 Shortly before the shooting started, Braig was standing
on the driver's side of his own vehicle, looking over the
roof and down into the subject vehicle. He testified he
saw Campbell's right hand reach toward the passenger seat,
disappear for a moment, and then reappear holding the replica
gun, right as “somebody yelled gun.” (Braig Dep. at 143–
44). Braig claims he then saw Campbell “swinging his right
arm from the passenger seat up into the direction towards our
car.” (Id. at 146). At that point, Braig “heard the gunshots,”
saw “glass flying everywhere,” and “thought [Cooper] was
being shot by this guy.” (Id. at 145–47). Seconds after hearing
the gunshots, Braig fired his own weapon at Campbell. (Id.
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at 147). Braig fired three shots at Campbell. Braig claims he
stopped shooting when he saw Campbell's hand was down
and thus Campbell no longer posed a threat. (Id. at 151–52).
When Kenney first heard “gun,” he was behind the subject
vehicle and could not see Campbell's hands. He “had tunnel
vision at that point” and was focused on Campbell's head.
(Kenney Dep. at 123). Kenney testified that when the shots
fired by Cooper and Braig blew out the back passenger-side
window of the subject vehicle, he thought Campbell had fired
on Malone, who Kenney believed was standing on that side
of the vehicle. (Id. at 125–26, 128). Kenney then fired two
shots at Campbell, aiming for his head. Kenney claims he shot
Campbell “[t]o save” Malone. (Id. at 128). Kenney did not
warn that he was going to shoot before firing his weapon, and
did not hear any officer do so.
The shooting lasted only a few seconds. Of the twenty-one
rounds fired, ten hit Campbell. Most of the rounds entered the
left side of Campbell's torso and back; two of those perforated
his left lung. (Doc. #172-14 (“FBI Inspector's Report”) at 10,
13; Doc. #172-31 (“Autopsy Report”) at ECF 6). 7
7 “ECF __” refers to page numbers automatically
assigned by the Court's Electronic Case Filing
system.
Plaintiffs dispute that any officer saw Campbell brandishing
the replica gun before or during the shooting. In support,
plaintiffs offer testimony from Barosa and McGee that heavy
snow and exhaust fumes made the visibility so bad they could
not see anything inside the vehicle—even though Barosa
was right next to the driver's side door and McGee was
next to the passenger's side, right by Marello. (Barosa Dep.
at 69–70, 78; Doc. #197-13 (“McGee Dep.”) at 52–54).
In addition, plaintiffs argue Marello's account of events—
in which Campbell purportedly brandished the gun while
simultaneously changing gears and steering—would have
required Campbell to have three hands. (Doc. #196 (“Pls.
Opp.”) at 25 (citing Marello Dep. at 86–89)). Plaintiffs also
note no fingerprints were found on the replica gun.
Plaintiffs further contend that even if Campbell did raise
the replica gun, there is a question of fact as to whether
he pointed it at any officers. For example, although Cooper
testified he shot Campbell to save “those officers on the
sidewalk” (Cooper Dep. at 143), McGee's testimony indicates
he and the other officers who had been standing on the
sidewalk—Marello and Malone—had already moved away
from the subject vehicle and were back by Kenney's vehicle
when Cooper fired his weapon. (McGee Dep. at 60; see also
Marello Dep. at 100–03).
Immediately after the shooting stopped, several officers
emerged from the positions where they had taken cover
and approached the subject vehicle. McGee testified he saw
Campbell through a bullet hole in the rear passenger window,
and that Campbell was facing the passenger side window,
with his shoulder blades pressed against the driver's side door.
According to McGee, the replica gun was on the passenger
seat, with Campbell's “fingertips at the edge of the weapon on
the seat.” (McGee Dep. at 62).
McGee then reached through the bullet hole and unlocked the
front passenger door of the subject vehicle. He picked up the
replica gun, at which point he realized it was not real, and put
it on the roof of the car, along with the duffel bag. Malone
and Menton removed Campbell from the vehicle and placed
him on the ground.
*5 At that point—less than a minute after the shooting
ended—Menton called an ambulance, while Barosa patted
Campbell down and inspected him for injuries. Campbell
“seemed to be on the verge of death.” (Barosa Dep. at 82).
And although Campbell initially had a pulse, “that quickly
stopped” and he seemed to stop breathing. (Id. at 82–83).
Barosa and McGee immediately began administering CPR,
and asked Menton to expedite emergency medical personnel.
Menton then made another radio call, requesting a rush on the
ambulance. (Menton Dep. at 107–08; Doc. #179-20 (“YPD
Radio Log”) at ECF 1).
At some point before the ambulance came, a YPD Emergency
Services Unit arrived at the scene. They took over CPR from
Barosa and McGee and used a defibrillator on Campbell.
The ambulance arrived approximately twelve minutes after
the shooting. Campbell was transported to a hospital, where
he died from the gunshot wounds to his torso less than an hour
after the shooting. (Autopsy Report at ECF 2; FBI Inspector's
Report at 13).
III. Plaintiffs’ Claims
Plaintiffs bring Bivens claims against the FBI defendants, and
Section 1983 claims against the other individual defendants,
for purported violations of Campbell's constitutional rights.
Specifically, plaintiffs claim Campbell's Fourth Amendment
rights were violated in four main ways: (i) Cooper, Braig,
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and Kenney used excessive force when they fired their
weapons; (ii) the team used excessive force when boxing
in the subject vehicle; (iii) the team's tactical decisions and
certain omissions from the plan made the use of deadly
force inevitable; and (iv) the non-firing defendants failed to
prevent or stop the use of deadly force. Plaintiffs further
claim the individual defendants violated Campbell's Fifth and
Fourteenth Amendment rights by failing timely to provide
adequate medical care. Plaintiffs also bring related state-law
claims against individual defendants. 8
8 In the MTD Decision, the Court dismissed
plaintiffs’ claims against the federal defendants
and Malone for (i) purported violations of the
First and Eighth Amendments; (ii) unlawful
search and seizure in contravention of the Fourth
Amendment; (iii) conspiracy to violate Campbell's
constitutional rights; (iv) negligence; (v) negligent
hiring, training, and supervision; and (vi) negligent
and intentional infliction of emotional distress.
(See MTD Decision at 11–13, 22–24, 28–31).
The Yonkers defendants and Tarrytown defendants,
who did not file motions to dismiss, argue they
are entitled to summary judgment on those same
claims. (See Doc. #175 (“Tarrytown Mem.”) at 11–
12; Doc. #180 (“Yonkers Mem.”) at 10–12, 17–
19). Plaintiffs’ opposition brief makes no attempt to
respond to defendants’ arguments regarding those
claims. Accordingly, the Court deems the claims
abandoned. See Jackson v. Federal Exp., 766 F.3d
189, 195 (2d Cir. 2014) (“[A] partial response
arguing that summary judgment should be denied
as to some claims while not mentioning others may
be deemed an abandonment of the unmentioned
claims.”); Cowan v. City of Mount Vernon, 95
F. Supp. 3d 624, 645 (S.D.N.Y. 2015) (granting
summary judgment on claims because of plaintiff's
failure to respond to defendant's arguments). And
in any event, the claims fail as a matter of law, for
the reasons set forth in the MTD Decision.
In addition, plaintiffs bring Monell claims against the City
of Yonkers for the purported constitutional violations, on the
ground that the City did not adequately train YPD officers
regarding its use of force policies, and respondeat superior
claims for the YPD officers’ alleged torts.
*6 Finally, plaintiffs assert FTCA claims against the United
States for (i) assault and battery; (ii) wrongful death; (iii)
conscious pain and suffering; and (iv) loss of love, support,
and familial relationships.
DISCUSSION
I. Legal Standard
The Court must grant a motion for summary judgment if
the pleadings, discovery materials before the Court, and any
affidavits show there is no genuine issue as to any material
fact and it is clear the moving party is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
A fact is material when it “might affect the outcome of the suit
under the governing law .... Factual disputes that are irrelevant
or unnecessary” are not material and thus cannot preclude
summary judgment. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). 9
9 Unless otherwise indicated, case quotations omit
all internal citations, quotations, footnotes, and
alterations.
A dispute about a material fact is genuine if there is sufficient
evidence upon which a reasonable jury could return a verdict
for the non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. at 248. The Court “is not to resolve disputed
issues of fact but to assess whether there are any factual issues
to be tried.” Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60
(2d Cir. 2010). It is the moving party's burden to establish
the absence of any genuine issue of material fact. Zalaski v.
Bridgeport Police Dep't, 613 F.3d 336, 340 (2d Cir. 2010).
If the non-moving party fails to make a sufficient showing on
an essential element of its case on which it has the burden
of proof, then summary judgment is appropriate. Celotex
Corp. v. Catrett, 477 U.S. at 323. If the non-moving party
submits “merely colorable” evidence, summary judgment
may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S.
at 249–50. The non-moving party “must do more than
simply show that there is some metaphysical doubt as to the
material facts and may not rely on conclusory allegations
or unsubstantiated speculation.” Brown v. Eli Lilly & Co.,
654 F.3d 347, 358 (2d Cir. 2011). “[T]he mere existence of
a scintilla of evidence” supporting the non-moving party's
position is likewise insufficient; there must be evidence on
which the jury could reasonably find for it. Dawson v. Cnty.
of Westchester, 373 F.3d 265, 272 (2d Cir. 2004).
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On summary judgment, the Court construes the facts, resolves
all ambiguities, and draws all permissible factual inferences
in favor of the non-moving party. Dallas Aerospace, Inc. v.
CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). If “there is
any evidence in the record from which a reasonable inference
could be drawn in favor of the [non-moving] party” on
the issue on which summary judgment is sought, “summary
judgment is improper.” See Sec. Ins. Co. of Hartford v. Old
Dominion Freight Line, Inc., 391 F.3d 77, 82–83 (2d Cir.
2004).
Importantly, “in cases in which officers have used deadly
force, leaving the witness most likely to contradict the
officers’ version of the events unable to testify, the court
may not simply accept what may be a self-serving account
by the police officer but must instead consider circumstantial
evidence that, if believed, would tend to discredit the
police officer's version and must undertake a fairly critical
assessment of, inter alia, the officer's original reports or
statements to decide whether the officer's testimony could
reasonably be rejected at a trial.” Soto v. Gaudett, 862 F.3d
148, 157 (2d Cir. 2017).
II. Bivens Claims Against the FBI Defendants
*7 In its September 2020 MTD Decision, the Court
dismissed all of plaintiffs’ claims against the FBI defendants,
except the Bivens claims for excessive force and deliberate
indifference to serious medical needs. The FBI defendants
argue the Bivens claims cannot stand in light of intervening
Supreme Court precedent, specifically Egbert v. Boule, 142
S. Ct. 1793 (2022), decided in 2022.
The Court agrees.
A. Applicable Law
In Bivens, the Supreme Court implied a private right of action
under the Fourth Amendment for an unreasonable search
and seizure claim against federal drug enforcement agents
who handcuffed a man in his own home without a warrant.
See Bivens v. Six Unknown Narcotics Agents, 403 U.S.
388, 389, 397 (1971). “Since then, the Supreme Court has
recognized Bivens claims in only two other circumstances:
(1) under the Fifth Amendment's Due Process Clause for
gender discrimination against a congressman for firing his
female secretary, and (2) under the Eighth Amendment's
prohibition on cruel and unusual punishment against prison
officials for failure to treat an inmate's asthma which led to his
death.” Rivera v. Samilo, 370 F. Supp. 3d 362, 366 (E.D.N.Y.
2019) (citing Davis v. Passman, 442 U.S. 228 (1979), and
Carlson v. Green, 446 U.S. 14 (1980)).
In Egbert v. Boule, the Supreme Court set out a two-
step inquiry for courts to determine whether to imply a
Bivens cause of action. First, the court must determine
“whether the case presents ‘a new Bivens context,’—i.e., is
it ‘meaningfully’ different from the three cases in which the
[Supreme] Court has implied a damages action.” Egbert v.
Boule, 142 S. Ct. at 1803 (quoting Ziglar v. Abbasi, 582 U.S.
120, 139–40 (2017)). The Supreme Court's “understanding of
a ‘new context’ is broad.” Hernandez v. Mesa, 140 S. Ct. 735,
743 (2020). For example, “a new context arises when there is
a new constitutional right at issue,” Egbert v. Boule, 142 S.
Ct. at 1807, or when the defendants were operating under a
different “statutory or legal mandate.” Ziglar v. Abbasi, 582
U.S. at 139–40. And importantly, “[a] claim may arise in a
new context even if it is based on the same constitutional
provision as a claim in a case in which a damages remedy was
previously recognized.” Hernandez v. Mesa, 140 S. Ct. at 743.
“Second, if a claim arises in a new context, a Bivens remedy
is unavailable if there are ‘special factors’ indicating that the
Judiciary is at least arguably less equipped than Congress
to ‘weigh the costs and benefits of allowing a damages
action to proceed.’ ” Egbert v. Boule, 142 S. Ct. at 1803
(quoting Ziglar v. Abbasi, 137 S. Ct. at 1858). Because
“recognizing a cause of action under Bivens is a disfavored
judicial activity,” a court may not imply a Bivens remedy if
there is “[e]ven a single sound reason to defer to Congress.”
Id. According to the Supreme Court, “in most every case,” it
is Congress, not the judiciary, “who should decide whether
to provide for a damages remedy.” Id. Moreover, “a court
may not fashion a Bivens remedy if Congress already has
provided, or has authorized the Executive to provide, an
alternative remedial structure”—even if “existing remedies
do not provide complete relief” or a “a wrong ... would ... go
unredressed” without a judicial remedy. Id. at 1804.
The Egbert Court held a plaintiff had no Bivens remedy
against a border patrol agent who allegedly entered the
plaintiff's property without a warrant and assaulted him. First,
the Court found the claim presented a new context for Bivens
purposes and that Congress was better equipped to decide
whether to provide a damages remedy. Egbert v. Boule, 142
S. Ct. at 1805. In doing so, the Court acknowledged Bivens
also involved allegations of excessive force and thus the two
cases “arguably present ‘almost parallel circumstances’ or
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a similar ‘mechanism of injury.’ ” Id. However, the Court
reasoned “these superficial similarities are not enough to
support the judicial creation of a cause of action.” Id. Second,
the Court concluded “Congress has provided alternative
remedies for aggrieved parties in [the plaintiff's] position”—
namely, internal investigations of alleged misconduct and
the Border Patrol's grievance process—which “independently
foreclose[d] a Bivens action.” Id. at 1806.
B. Application
*8 Although this Court previously concluded plaintiffs had
pleaded Bivens claims against the FBI defendants, the Court
must reconsider its conclusion in light of Egbert v. Boule.
Having done so, the Court is convinced the Supreme Court,
if confronted with plaintiffs’ claims, would find no cause of
action under Bivens.
First, there are several meaningful differences between this
case and Bivens, such that plaintiffs’ asserted claims arise in a
new context. Bivens involved a warrantless arrest and search
of the plaintiff's home, whereas this case involves an arrest
made on a public street with probable cause. Moreover, the
officers involved in Bivens were federal drug enforcement
agents, whereas here the officers were FBI agents, task force
officers, and other local law enforcement officers. And the
Court in Bivens reasoned that the right at issue was primarily a
Fourth Amendment right to privacy, 403 U.S. at 389, whereas
here the Fourth Amendment right at issue is the right to be
free from excessive force.
Plaintiff's deliberate indifference claim also arises in a new
context. Plaintiffs’ allegations materially differ from those in
Carlson v. Green, the only case in which the Supreme Court
has found a Bivens remedy for constitutionally inadequate
medical care. 446 U.S. 14 (1980). The defendants in Carlson
v. Green were federal prison officials who allegedly failed to
treat an inmate's asthma, not law enforcement officers who
allegedly delayed treatment of an arrestee's injuries. Id. at
16. Moreover, the claim in Carlson v. Green was brought
under the Eighth Amendment, as opposed to plaintiffs’ Fifth
Amendment claim here. Id.
With respect to the second step in the Bivens analysis, several
factors counsel hesitation in extending Bivens to plaintiffs’
claims. First, there are sound reasons to believe Congress is
better suited to decide whether to permit a damages action for
aggrieved parties in plaintiffs’ position:
It is not necessarily a judicial function
to establish whole categories of cases
in which federal officers must defend
against personal liability claims in
the complex sphere of litigation,
with all of its burdens on some
and benefits to others. It is true
that, if equitable remedies prove
insufficient, a damages remedy might
be necessary to redress past harm
and deter future violations. Yet the
decision to recognize a damages
remedy requires an assessment of its
impact on governmental operations
systemwide. Those matters include the
burdens on Government employees
who are sued personally, as well as
the projected costs and consequences
to the Government itself when the tort
and monetary liability mechanisms of
the legal system are used to bring
about the proper formulation and
implementation of public policies.
Ziglar v. Abbasi, 137 S. Ct. at 1858; see also Egbert v.
Boule, 142 S. Ct. at 1803 (“[A] court likely cannot predict the
systemwide consequences of recognizing a cause of action
under Bivens.”).
Moreover, there are multiple alternative remedial structures
available to plaintiffs on their claims against the FBI
Defendants. Plaintiffs could—and did—bring tort claims
against the United States under the FTCA. And pursuant to
Department of Justice and FBI policy, the FBI conducted an
internal investigation after the shooting. (See generally FBI
Inspector's Report; Doc. #173). These alternative remedies
“independently foreclose a Bivens action.” Egbert v. Boule,
142 S. Ct. at 1806.
*9 Accordingly, plaintiffs’ Fourth and Fifth Amendment
claims against the FBI defendants must be dismissed.
III. Section 1983 Claims Against the Local Police
Defendants
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A. Excessive Force Claims
Braig and Cooper argue they are entitled to summary
judgment on plaintiffs’ excessive force claims because the
amount of force they used was reasonable as a matter of law.
Barosa, Malone, Marello, Menton, McGee, Walencik, and
Wissner argue they are entitled to summary judgment because
the undisputed facts establish they did not use excessive
force or have a reasonable opportunity to prevent the use of
excessive force. The local police defendants also argue they
are entitled to summary judgment on the basis of qualified
immunity.
The Court disagrees that Braig and Cooper are entitled to
summary judgment with respect to plaintiffs’ excessive force
claim against them premised on their use of deadly force.
However, the Court agrees plaintiffs’ other excessive force
claims must be dismissed.
1. Applicable Law
“A police officer violates the Fourth Amendment if
the amount of force he uses in effectuating an arrest
is ‘objectively unreasonable’ in light of the facts and
circumstances confronting’ the officer.” Lennox v. Miller,
968 F.3d 150, 155 (2d Cir. 2020) (quoting Graham v. Connor,
490 U.S. 386, 397 (1989)). Determining “whether an officer
has used excessive force requires careful attention to the
facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade
arrest by flight.” Kisela v. Hughes, 138 S. Ct. 1148, 1152
(2018). “The reasonableness of a particular use of force must
be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.” Id.
“The fact that a person whom a police officer attempts to
arrest resists no doubt justifies the officer's use of some degree
of force, but it does not give the officer license to use force
without limit.” Brown v. City of New York, 798 F.3d 94, 103
(2d Cir. 2015). And “an officer's use of deadly force in a police
shooting case is not, as a matter of law, reasonable unless that
officer had probable cause to believe that the individual posed
a significant threat of death or serious physical injury to the
officer or others.” Callahan v. Wilson, 863 F.3d 144, 152 (2d
Cir. 2017).
In addition, “planners may be liable under section 1983 to
the extent that a plan for a search or seizure, as formulated
and approved by those defendants, provides for and results
in an unconstitutionally excessive use of force.” Terebesi v.
Torreso, 764 F.3d 217, 234 (2d Cir. 2014). “A defendant who
plans or directs an unreasonable use of force is liable for
the resulting constitutional violation as a direct participant.”
Id. On the other hand, a defendant cannot be held liable for
excessive force on the grounds that he “himself created the
situation in which the use of deadly force became necessary
by violating police procedure” before the shooting, or that
his “ill-conceived ruse, which did not contemplate excessive
force, provoked [a] deadly confrontation.” Id. at n.16.
*10 Finally, “all law enforcement officials have an
affirmative duty to intervene to protect the constitutional
rights of citizens from infringement by other law enforcement
officers in their presence.” Anderson v. Branen, 17 F.3d 552,
557 (2d Cir. 1994). “Failure to intercede results in liability
where an officer observes excessive force is being used or has
reason to know that it will be.” Jean-Laurent v. Wilkerson, 461
F. App'x 18, 21 (2d Cir. 2012) (summary order). “However,
in order for liability to attach, there must have been a realistic
opportunity to intervene to prevent the harm from occurring.”
Id.
“In each case, the question whether a defendant had a realistic
chance to intercede will turn on such factors as the number of
officers present, their relative placement, the environment in
which they acted, the nature of the assault, and a dozen other
considerations.” Figueroa v. Mazza, 825 F.3d 89, 107 (2d Cir.
2016). “Among these considerations, of course, the assault's
duration will always be relevant and will frequently assume
great importance.” Id. “The essential inquiry is whether, under
the circumstances actually presented, an officer's failure to
intervene permits a reasonable conclusion that he became a
tacit collaborator in the unlawful conduct of another.” Id. at
107–08.
“In light of the fact-specific nature of the inquiry on an
excessive force claim, granting summary judgment against
a plaintiff on such a claim is not appropriate unless
no reasonable factfinder could conclude that the officers’
conduct was objectively unreasonable.” Lennox v. Miller, 968
F.3d at 155.
2. Use of Deadly Force
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It is undisputed that Braig and Cooper, but none of the other
local police defendants, shot Campbell. And here, plaintiffs
have raised genuine, material disputes as to “the facts and
circumstances confronting” Braig and Cooper when they
fired their weapons, and thus as to whether their use of deadly
force was “objectively reasonable.” Lennox v. Miller, 968
F.3d at 155.
The reasonableness of Cooper's initial decision to fire his
weapon largely depends on whether, as he claims, he
reasonably believed Campbell posed a significant threat of
death or serious injuries to officers standing by the passenger
side of the subject vehicle. Similarly, the reasonableness of
Braig's decision to fire his weapon depends on whether he
reasonably believed Campbell was firing at Cooper. And the
reasonableness of each officer's decision to fire subsequent
shots depends on whether they reasonably believed Campbell
remained a threat when they fired those additional rounds. See
Estate of Jaquez v. City of New York, 104 F. Supp. 3d 414, 437
(S.D.N.Y. 2015) (“While it may have been reasonable for [the
officer] to use lethal force earlier in the altercation when [the
decedent] threatened the officers with a knife, such authority
does not extend indefinitely.”).
These are jury questions.
On the one hand, the record contains evidence from which
a reasonable jury could conclude Cooper and Braig had
probable cause to believe Campbell posed a significant threat
to officers before and throughout the shooting. For example,
the replica gun was found on the passenger seat, “in close
proximity” to Campbell's right hand, from which a reasonable
juror might conclude Campbell brandished it. (McGee Dep.
at 64). And jurors could certainly credit testimony by Cooper,
Braig, and Marello that they saw Campbell point the gun
at other officers, as well as Malone's testimony that he
was standing by the passenger side of the subject vehicle
throughout the shooting.
*11 On the other hand, the record also contains
“circumstantial evidence that, if believed, would tend to
discredit” Cooper's and Braig's explanations for why they shot
Campbell. Soto v. Gaudett, 862 F.3d at 157. For example,
jurors could credit McGee's testimony that he, Malone, and
Marello were no longer standing by the passenger side of the
subject vehicle when Cooper began firing. A reasonable juror
could also infer from autopsy evidence regarding the location
of the bullet wounds, combined with McGee's testimony that
both of Campbell's “shoulder blades were pressed against the
driver's door” immediately after the shooting, that Campbell
was not pointing the gun in Cooper's direction when Braig
fired at least one of the rounds. (McGee Dep. at 62).
Moreover, jurors could use autopsy evidence regarding the
severity of the wounds, and testimony that Campbell was
“on the verge of death” a minute after the shooting ended,
to determine Braig and Cooper could not have reasonably
believed Campbell was a threat when they fired their final
shots. (Barosa Dep. at 82).
In short, there are triable issues of fact as to whether Cooper's
and Braig's use of deadly force was reasonable. And “disputed
material issues regarding the reasonableness of an officer's
perception of the facts (whether mistaken or not) is the
province of the jury.” Jones v. Treubig, 963 F.3d 214, 231
(2d Cir. 2020); see also Terebesi v. Torreso, 764 F.3d at
240 (“The credibility of [an officer's] recollection and the
sufficiency of the asserted basis for his mistaken impression
that [the decedent] was firing at the officers are ... matters to
be determined by the factfinder.”).
Accordingly, summary judgment as to Braig and Cooper on
plaintiffs’ excessive force claim is not warranted.
3. The Box-In Maneuver
No reasonable juror could conclude the local police
defendants used excessive force when boxing in the subject
vehicle.
The undisputed facts show only Kenney, Braig, and Malone's
vehicles made contact with the subject vehicle during the
operation, and that they did not do so until after Campbell
tried to flee. Braig's vehicle collided with Campbell's as
Campbell pulled away from the curb. After that collision,
Campbell reversed into Kenney's vehicle. Kenney then
“pressed the accelerator and rammed [Campbell] into
[Malone's] car.” (Kenney Dep. at 115–16). As Campbell
moved back and forth to try to escape, Kenney repeatedly
“push[ed] [Campbell's] car forward into [Malone's] car to
keep it pinned.” (Id. at 119).
There is also no genuine dispute that when Kenney, Braig,
and Malone used their vehicles to prevent Campbell from
leaving the scene, they believed he was connected to—and
had likely committed—two armed bank robberies, and might
be armed at that moment. And although plaintiffs speculate
that Campbell may not have known he was surrounded by
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police or heard the officers’ commands to show them his
hands and get out of the car (Pl. Opp. at 23), those commands
were shouted. (See Doc. #171 (“Fed. Defs. 56.1 Statement”)
¶ 43). 10 As such, a reasonable officer could have believed
Campbell refused to submit to arrest and was attempting to
flee the scene. Thus, on the undisputed facts, viewed “from
the perspective of a reasonable officer on the scene,” the force
used to trap Campbell's vehicle was objectively reasonable.
Kisela v. Hughes, 138 S. Ct. at 1152.
10 Plaintiffs purport to “dispute that these commands
were yelled” on the grounds that “there is no
audio or video recording of the shooting.” (Doc.
#198 (“Pls. 56.1 Response to Fed. Defs.”)
¶ 43). But plaintiffs’ contention is mere
speculation, unsupported by any citation to
evidence. Accordingly, for the purpose of deciding
the motions, the Court finds it undisputed that team
members yelled the commands enumerated in the
corresponding statement of material fact. See Baity
v. Kralik, 51 F. Supp. 3d 414, 418 (S.D.N.Y. 2014)
(“[R]esponses that do not point to any evidence
in the record that may create a genuine issue of
material fact do not function as denials, and will be
deemed admissions of the stated fact,” pursuant to
Local Civil Rule 56.1).
*12 Accordingly, plaintiffs’ excessive force claim premised
on the use of force during the box-in maneuver must be
dismissed.
4. Planner Liability
Plaintiffs claim Marello and Menton “could ... be held liable
under” Terebesi v. Torreso, 764 F.3d 217, because they helped
Kenney develop the plan for the operation. (Pls. Opp. at 30).
But this claim fails as a matter of law.
The undisputed facts show the plan did not “provide[ ] for ...
an unconstitutionally excessive use of force.” Cf. Terebesi v.
Torreso, 764 F.3d at 234. With respect to the use of deadly
force, Menton testified “the plan was to get [Campbell] out
of the car peacefully, but [Campbell] kind of changed the
plan.” (Menton Dep. at 133). Indeed, plaintiffs themselves
point out “the potential that officers would need to use their
weapons,” and “how the Team would use force,” were “not
part of the Plan and were not briefed to the Team.” (Pls. Opp.
at 3–4). And for the reasons stated above, the planned box-in
maneuver does not constitute excessive force, so there can be
no “planner” liability with respect to that alleged use of force.
Plaintiffs’ policing practices expert might be correct that
the plan was “overly vague,” lacked “critical information,”
and “required unreasonably close contact between numerous
officers and the bank robbery suspect” (Doc. #197-1 at 12–
13), and thus “created a tactical scenario whereby the use
of deadly force against Erick Campbell was the foreseeable
and likely outcome.” (Id. at 11). But developing an “ill-
conceived” plan does not implicate an excessive force claim,
unless the operation “as planned, even if it had gone
perfectly,” constituted an excessive use of force. Terebesi v.
Torreso, 764 F.3d at 235 n.16.
Accordingly, to the extent plaintiffs assert a planner liability
claim against Marello and Menton, this claim must be
dismissed.
5. Failure to Intervene
No reasonable juror could conclude the non-firing local police
defendants—Barosa, Malone, Marello, Menton, McGee,
Walencik, and Wissner—had a realistic opportunity to
prevent or stop the shooting.
The undisputed facts show the shooting happened in a matter
of seconds and that no officer warned he was going to shoot
before opening fire. Nor is there a genuine dispute that when
the shooting began, Walencik and Wissner were not close
to the scene and the other non-firing defendants had taken
cover behind various police vehicles. Accordingly, the record
establishes these defendants could not have intervened to
stop the shooting. See Crockett v. City of New York, 2015
WL 5719737, at *7 (E.D.N.Y. Sept. 29, 2015) (“Based upon
the distances between the Other Defendant–Officers and [the
firing officer], and the fact that the two shots were fired in
rapid succession and without notice or warning, the Other
Defendant–Officers did not have a realistic opportunity to
intervene to prevent the shooting.”).
The Court is not persuaded the defendants “should have
known” the surveillance operation “would lead to the
inevitable use of deadly force” and thus were obligated
to “intervene” by objecting to the plan or removing their
subordinates from the operation. (Cf. Pls. Opp. at 31). As
explained above, the plan did not provide for the use of deadly
force, or even address the possibility that officers might need
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to use their weapons. Under these circumstances, the non-
firing police defendants did not “have reason to know” deadly
force would be used. Jean-Laurent v. Wilkerson, 461 F. App'x
at 21.
*13 Accordingly, plaintiffs’ failure to intervene claims
against Barosa, Malone, Marello, Menton, McGee, Walencik,
and Wissner must be dismissed.
6. Qualified Immunity
Braig and Cooper argue that, to the extent the record supports
an excessive force claim, such claim should be dismissed
because they are entitled to qualified immunity, as a matter
of law. 11
11 The Court need not consider whether the other
local police defendants are entitled to qualified
immunity, since plaintiffs’ claims against them fail
on the merits.
The Court disagrees.
Qualified immunity shields government officials whose
“conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The
scope of qualified immunity is broad, and protects “all but the
plainly incompetent or those who knowingly violate the law.”
Malley v. Briggs, 475 U.S. 335, 341 (1986). “A qualified
immunity defense is established if (a) the defendant's action
did not violate clearly established law, or (b) it was objectively
reasonable for the defendant to believe that his action did not
violate such law.” Salim v. Proulx, 93 F.3d 86, 89 (2d Cir.
1996). “Defendants bear the burden of establishing qualified
immunity.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015).
In the context of an excessive force claim, “the question for
the purposes of qualified immunity is whether a reasonable
officer could have believed that the use of force alleged was
objectively reasonable in light of the circumstances.” Lennon
v. Miller, 66 F.3d 416, 425 (2d Cir. 1995); see also O'Bert ex
rel. Estate of O'Bert v. Vargo, 331 F.3d 29, 37 (2d Cir. 2003)
(“in Fourth Amendment unreasonable force cases, unlike in
other cases, the qualified immunity inquiry is the same as the
inquiry on the merits.”).
Here, as explained above, there are genuine material issues
of fact as to whether Braig and Cooper's use of deadly force
during the surveillance operation was reasonable under the
circumstances.
Accordingly, summary judgment in favor of Braig and
Cooper on the basis of qualified immunity is inappropriate.
B. Deliberate Indifference to Serious Medical Needs
Claim
The local police defendants argue they are entitled to
summary judgment because the undisputed facts establish
they were not deliberately indifferent to Campbell's medical
needs.
The Court agrees.
1. Applicable Law
Deliberate indifference to serious medical needs claims
brought by pretrial detainees or arrestees against state actors
under Section 1983 are analyzed under the Fourteenth
Amendment's Due Process Clause. Logan v. City of
Schenectady, 2019 WL 3803631, at *4 (N.D.N.Y. Aug. 13,
2019) (citing Darnell v. Pineiro, 849 F.3d 17, 33 n.9 (2d Cir.
2017)).
To establish a claim for deliberate indifference to serious
medical needs, a plaintiff must satisfy a two-prong test,
comprising an objective prong and a mens rea prong. Darnell
v. Pineiro, 849 F.3d at 29. Namely, a plaintiff must establish
“the challenged conditions were sufficiently serious,” and
defendants “acted with at least deliberate indifference to the
challenged conditions.” Id.
*14 For the objective prong, a plaintiff must establish
the challenged conditions “either alone or in combination,
pose[d] an unreasonable risk of serious damage to his health.”
Darnell v. Pineiro, 849 F.3d at 30 (quoting Walker v. Schult,
717 F.3d 119, 125 (2d Cir. 2013)). “There is no ‘static test’
to determine whether a deprivation is sufficiently serious;
instead, ‘the conditions themselves must be evaluated in light
of contemporary standards of decency.’ ” Id. (quoting Blissett
v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995)).
To satisfy the mens rea prong, a pretrial detainee must
sufficiently show defendants “recklessly failed to act with
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reasonable care to mitigate the risk that the condition posed
to the pretrial detainee even though the [defendants] knew, or
should have known, that the condition posed an excessive risk
to health or safety.” Darnell v. Pineiro, 849 F.3d at 35. The
mens rea prong “is defined objectively” and “can be violated
when an official does not have subjective awareness that
the official's acts (or omissions) have subjected the pretrial
detainee to a substantial risk of harm.” Id.
“A delay in providing necessary medical care may in some
cases constitute deliberate indifference.” Maldonado v. Town
of Greenburgh, 460 F. Supp. 3d 382, 396 (S.D.N.Y. 2020).
And “delay in medical treatment must be interpreted in the
context of the seriousness of the medical need, deciding
whether the delay worsened the medical condition, and
considering the reason for the delay.” Id. at 396–97.
2. Application
No reasonable jury could conclude the local police defendants
deprived Campbell of constitutionally adequate medical
treatment.
The record establishes Menton called for an ambulance within
a minute after the shooting occurred, and then radioed again
to request a rush on the ambulance. (YPD Radio Log at
ECF 1). The Constitution requires no more. See Tatum v.
City & County of San Francisco, 441 F.3d 1090, 1099
(9th Cir. 2006) (“[D]ue process requires that police officers
seek the necessary medical attention for a detainee when
he or she has been injured while being apprehended by
either promptly summoning the necessary medical help or
by taking the injured detainee to a hospital.”); Rasmussen
v. City of New York, 766 F. Supp. 2d 399, 414 (E.D.N.Y.
2011) (“The obligation of the police to provide necessary
medical treatment upon request by a detainee or based upon
the obvious need for treatment is satisfied when the police
summon medical assistance; they have no duty to provide that
assistance themselves.”).
Indeed, the undisputed facts show Barosa and McGee
provided Campbell with medical treatment beyond what the
Constitution requires. Immediately after observing the gravity
of Campbell's condition, Barosa and McGee performed CPR
on him until emergency medical professionals arrived.
Plaintiffs contend the team should have “arrange[d] for an
ambulance or EMT to be on call.” (Pls. Opp. at 31–32). But
plaintiffs do not cite, and the Court is not aware of, any
cases suggesting the absence of such arrangements violates
the Fourteenth Amendment. And even if defendants’ failure
to have an ambulance or EMT on call violated Campbell's
constitutional rights, defendants would be entitled to qualified
immunity as the law does not clearly establish such a
requirement. See Salim v. Proulx, 93 F.3d at 89.
Accordingly, plaintiffs’ deliberate indifference to medical
needs claim must be dismissed.
IV. Monell Claim Against the City of Yonkers
*15 The City of Yonkers argues plaintiffs’ Monell claim
fails because they have not established that a municipal policy
or custom proximately caused Braig and Cooper's alleged use
of excessive force.
The Court agrees.
“For the purpose of Section 1983, a municipality is not
vicariously liable for the acts of its employees.” Green v.
City of New York, 465 F.3d 65, 80 (2d Cir. 2006). Instead,
a municipality is liable under Section 1983 only “when
execution of a [municipal] policy or custom, whether made
by its lawmakers or by those whose edicts or acts may fairly
be said to represent official policy, inflicts the [plaintiff's]
injury.” Monell v. Dep't of Soc. Servs., 436 U.S. at 694.
“Failure to train subordinate municipal employees will trigger
municipal liability ‘only where the failure to train amounts to
deliberate indifference to the rights’ of members of the public
with whom the employees will interact.” Green v. City of
New York, 465 F.3d at 80 (quoting City of Canton v. Harris,
489 U.S. 378, 388 (1989)). And “at the summary judgment
stage, plaintiffs must identify a specific deficiency in the city's
training program and establish that that deficiency is closely
related to the ultimate injury, such that it actually caused the
constitutional deprivation.” Id. at 81.
To support their Monell claim, plaintiffs cite deposition
testimony indicating Braig, Cooper, Menton, and Wissner
“recalled only some new definitions and a new diagram”
from their training in 2017 on YPD's then-new use of force
policy, “but nothing new in how the policy operated.” (Pls.
Opp. at 35). However, these officers also testified the new
policy provided more detailed information regarding the use
of force, and that officers were trained and tested on the
new policy. In addition, the officers testified their use-of-
force training included hypotheticals, written materials, and
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case studies, and that they received training in de-escalation
tactics. (E.g., Braig Dep. at 49–50; Cooper Dep. at 24–26, 33–
34; Menton Dep. at 25).
Plaintiffs provide no evidence as to “how better or different
training could have prevented the challenged conduct.”
Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 130 (2d
Cir. 2004). Nor do plaintiffs provide evidence of a pattern of
deadly force by YPD officers so pervasive as to place the City
on actual or constructive notice of an inadequacy in YPD's
training program. See Jones v. Town of East Haven, 691
F.3d 72, 81 (2d Cir. 2012) (“[I]solated acts of excessive force
by non-policymaking municipal employees are generally not
sufficient” to hold a municipality liable under Section 1983).
Finally, “plaintiffs have provided no evidence tending to rule
out those causes of the excessive force that would not support
municipal liability, such as the negligent administration of a
valid [training] program, or one or more officers’ negligent or
intentional disregard of their training.” Amnesty Am. v. Town
of W. Hartford, 361 F.3d at 130.
Plaintiffs have therefore failed to raise an inference that
YPD officers were improperly trained and that this deficient
training caused Braig and Cooper to use excessive force.
Accordingly, the Monell claim against the City of Yonkers
must be dismissed.
V. Assault and Battery Claims
*16 Plaintiffs assert assault and battery claims against the
local police defendants and the United States. 12
12 The Court previously dismissed plaintiffs’ assault
and battery claim as to the FBI defendants because
such a claim is not actionable under Bivens and
federal employees are immune from tort claims
arising out of conduct undertaken in the course of
their official duties. (MTD Decision at 24).
A. Local Police Defendants
The local police defendants argue plaintiffs’ assault and
battery claim must be dismissed because the undisputed facts
show they did not use excessive force.
The Court disagrees as to defendants Braig and Cooper, but
agrees as to the other local police defendants.
“Except for § 1983’s requirement that the tort be committed
under color of state law, the essential elements of excessive
force and state law assault and battery claims are substantially
identical.” Humphrey v. Landers, 344 F. App'x 686, 688 (2d
Cir. 2009) (summary order).
Here, because a reasonable jury could find Braig and Cooper
used excessive force against Campbell, plaintiffs’ assault and
battery claim against these defendants may also proceed.
But because plaintiffs’ excessive force claim against Barosa,
Malone, Marello, McGee, Menton, Walencik, and Wissner
fails, the assault and battery claim against these defendants
likewise fails.
B. United States
The United States argues plaintiffs’ FTCA claim for assault
and battery must be dismissed because the United States
cannot be held liable for the conduct of Braig and Cooper,
and because no reasonable juror could conclude the FBI
defendants used excessive force or had an opportunity to
prevent the shooting.
The Court disagrees that Kenney's use of deadly force was
reasonable as a matter of law. However, the Court agrees
summary judgment in favor of the United States is warranted
to the extent plaintiffs’ assault and battery claim is premised
on Braig's and Cooper's use of deadly force and the other FBI
defendants’ conduct.
1. Applicable Law
“The [FTCA] is a limited waiver of sovereign immunity,
making the Federal Government liable to the same extent
as a private party for certain torts of federal employees
acting within the scope of their employment.” United States
v. Orleans, 425 U.S. 807, 813 (1976). “Although assault
and battery claims against the federal government are
usually prohibited, the FTCA permits such claims where, as
here, federal law enforcement officers are alleged to have
committed assault or battery.” Cuoco v. U.S. Bureau of
Prisons, 2003 WL 22203727, at *4 (S.D.N.Y. Sept. 22, 2003)
(citing 28 U.S.C. § 2680(h)). Indeed, “[t]he FTCA explicitly
avoids waiving sovereign immunity for ‘any claim arising
out of assault, battery,’ and several other intentional torts.”
Leytman v. U.S. Dep't of Homeland Sec., 804 F. App'x 78,
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80 (2d Cir. 2020) (summary order) (quoting 28 U.S.C. §
2680(h)).
The FTCA defines federal employee to include individuals
“acting on behalf of a federal agency in an official capacity,
temporarily or permanently in the service of the United States,
whether with or without compensation.” 28 U.S.C. § 2671.
“For the purposes of the FTCA, the common law of torts
and agency defines the distinction between an independent
contractor (for whose torts the Government is not responsible)
and an employee, servant or agent (for whose torts the
Government is responsible).” O'Neil v. United States, 927 F.
Supp. 599, 604 (E.D.N.Y. 1996).
*17 Thus, an individual is deemed a federal employee under
the FTCA only if the “strict control test” is satisfied. In
other words, the United States is liable for an individual's
torts only if the federal government maintained control over
and “manage[d] the details of” the individual's work, or
“supervise[d] him in his daily duties.” Leone v. United States,
910 F.2d 46, 50 (2d Cir. 1990). It is not enough for the
federal government to have acted “generally as an overseer.”
Id. And “[t]he government's retention of overall authority”
over a law enforcement operation, “even its setting of specific
objectives, will not convert local actors to federal employees,
so long as the local actors ‘are largely free to select the
means’ of reaching those objectives.” Mick v. Brewer, 1995
WL 41679, at *2 (D. Kan. Jan. 26, 1995), rev'd on other
grounds, 76 F.3d 1127 (10th Cir. 1996) (quoting United States
v. Orleans, 425 U.S. 807, 816 (1976)).
2. FTCA Liability for Braig and
Cooper's Allegedly Tortious Conduct
The undisputed facts establish Braig and Cooper are not
federal employees for FTCA purposes.
Plaintiffs concede Braig and Cooper were not members of
the task force, employees of the FBI, paid by the FBI, or
subject to the FBI's disciplinary authority. (Pls. 56.1 Response
to Fed. Defs. ¶ 21). And although “the FBI was in command”
of the operation (Braig Dep. at 72), the FBI did “not manage
the details” of Braig and Cooper's work or “supervise [them]
in [their] daily duties.” Leone v. United States, 910 F.2d at
50. As plaintiffs point out, “[t]here were no details provided”
to Braig and Cooper regarding the plan for “converging on
or boxing-in the vehicle” or “the use of deadly force.” (Pls.
Opp. at 5) (citations omitted). Braig independently decided
to position his vehicle along the driver's side of the subject
vehicle, after “surveying the situation” and determining that
“the suspect [ ] almost had enough room to come out from
ramming” Kenney's and Malone's vehicles. (Braig Dep. at
123, 127). Likewise, no one in the FBI told Braig or Cooper
to fire their weapons at Campbell.
Because the strict control test has not been met, the United
States cannot be held liable for any torts allegedly committed
by Braig and Cooper.
3. FTCA Liability for Kenney's Conduct
There are triable issues of fact as to whether Kenney
committed assault and battery when acting within the scope
of his employment as an FBI agent.
As with the assault and battery claims against the local police
defendants, “[t]he same excessive force ... principles apply
to the FTCA cause of action for assault and battery against
the United States.” Scott v. City of White Plains, 2013 WL
1313774, at *8 (S.D.N.Y. Mar. 18, 2013). Thus, to prevail
on their FTCA claim, plaintiffs “must demonstrate that the
amount of force used was objectively unreasonable.” Id.
There are genuine disputes as to the facts and circumstances
confronting Kenney when he fired his weapon, and thus as to
whether his use of deadly force was objectively reasonable.
Lennox v. Miller, 968 F.3d at 155. For example, a reasonable
juror might credit McGee's testimony that Malone was no
longer standing by the passenger side of the subject vehicle
when the shooting began. Thus, whether Kenney reasonably,
although mistakenly, believed that Campbell had “opened fire
on TFO Malone” (Doc. #170 (“Fed. Defs. Mem.”) at 16), is
“the province of the jury.” Jones v. Treubig, 963 F.3d at 231.
Accordingly, plaintiffs’ FTCA assault and battery claim, to
the extent it is premised on Kenney's use of deadly force, may
proceed.
4. FTCA Liability for the Other FBI Defendants’ Conduct
No reasonable juror could conclude Conlon, Fisher, or
McKenna used excessive force against Campbell when acting
within the scope of their employment as FBI agents. It is
undisputed that these defendants did not fire their weapons
at Campbell. And to the extent plaintiffs’ assault and battery
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claim against these defendants is based on planner liability,
failure to intervene, or the box-in maneuver, this claim fails
for the reasons set forth in Part III.A above.
*18 Accordingly, plaintiffs’ FTCA assault and battery
claim, insofar as it is premised on the conduct of Conlon,
Fisher, and McKenna, must be dismissed.
VI. Loss of Love, Support, and Familial Relationships
Claims
The federal defendants argue plaintiffs’ twentieth cause of
action—comprising Eric Campbell's claim for the loss of his
father's “love, support, familial relationships, and parental
guidance” (SAC ¶ 277), and Aida and Robert Campbell's
claims for the loss of their son's “love, support, and familial
relationships” (id. ¶ 276)—must be dismissed because such
losses are not compensable under New York law.
The Court agrees.
In New York, the spouse of an injured or deceased
individual may recover for the “loss of consortium,” which
encompasses the “loss of support or services,” as well as
“love, companionship, affection, society, sexual relations,
solace and more.” Rangolan v. County of Nassau, 370 F.3d
239, 248 (2d Cir. 2004) (quoting Millington v. Se. Elevator
Co., 22 N.Y.2d 498, 504-05 (1968)). But New York courts
do not permit a child to recover for “the loss of parental
care, companionship, guidance, love and training,” or a
parent to recover for the loss of their child's “affection,
love and companionship.” De Angelis v. Lutheran Med. Ctr.,
84 A.D.2d 17, 26–27 (2d Dept. 1981), aff'd De Angelis v.
Lutheran Med. Ctr., 58 N.Y.2d 1053, 1055 (1983); see also
Devito v. Opatich, 215 A.D.2d 714, 715 (2d Dep't 1995)
(plaintiffs’ “loss of their minor daughter's society ... is not
compensable”).
Accordingly, plaintiffs’ claims for loss of love, support,
familial relationships, and parental guidance must be
dismissed.
VII. Wrongful Death and Conscious Pain and Suffering
Claims
Plaintiffs’ claims for wrongful death and conscious pain and
suffering are derivative of their claims for excessive force and
assault and battery. See Chamberlain v. City of White Plains,
986 F. Supp. 2d 363, 398–99 (citing N.Y. Est. Powers & Trusts
Law §§ 5–4.1, 11–3.2(b)).
Because there are genuine issues of material fact as to whether
the use of deadly force was objectively reasonable, for the
reasons stated above, the Court declines to dismiss plaintiffs’
wrongful death and conscious pain and suffering claims as
against Braig, Cooper, and the United States.
However, because plaintiffs’ excessive force and assault
and battery claims fail as against Barosa, Malone, Marello,
McGee, Menton, Walencik, and Wissner, the wrongful
death and conscious pain and suffering claims against these
defendants likewise fail. See Chamberlain v. City of White
Plains, 986 F. Supp. 2d at 399 (“Because [the defendant]
committed no underlying wrong against [the decedent], the
conscious pain and suffering and wrongful death claims also
fail as a matter of law.”).
VIII. Respondeat Superior Claims
Plaintiffs bring respondeat superior claims against the City
of Yonkers premised on the allegedly tortious conduct of the
YPD officers who participated in the operation, defendants
Braig, Cooper, Marello, Menton, Walencik, and Wissner.
Unlike Section 1983, New York law permits plaintiffs to
hold municipalities vicariously liable for torts committed by
municipal employees while acting within the scope of their
employment. See Triolo v. Nassau Cnty., 24 F.4th 98, 110
(2d Cir. 2022); Jones v. State of New York, 33 N.Y.2d 275,
279-80 (1973) (“A long line of cases has held the State or
municipalities liable for the actions of their police officers in
the line of duty.”).
*19 Because plaintiffs have “not demonstrated any basis
for liability on the part of” Marello, Menton, Walencik, or
Wissner, they “cannot establish respondeat superior liability
for those claims.” Yusuf v. City of New York, 2022 WL
393882, at *11 (E.D.N.Y. Feb. 9, 2022).
However, for the reasons stated above, a reasonable jury could
find Braig's and Cooper's use of deadly force was excessive,
and thus constituted assault and battery under New York law.
Accordingly, plaintiffs’ claim against the City of Yonkers for
assault and battery, and the derivative claims for wrongful
death and conscious pain and suffering, may proceed.
CONCLUSION
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The Tarrytown defendants’ motion for summary judgment
(19 Civ. 2117 Doc. #174) is GRANTED.
Defendant Malone's motion for summary judgment (19 Civ.
2117 Doc. #186) is GRANTED.
The federal defendants’ motion for summary judgment (19
Civ. 2117 Doc. #169 and 19 Civ. 9444 Doc. #89) is DENIED
as to plaintiffs’ claims against the United States for assault
and battery, wrongful death, and conscious pain and suffering,
solely to the extent such claims are premised on Kenney's use
of deadly force. The federal defendants’ motion is otherwise
GRANTED.
The Yonkers defendants’ motion for summary judgment
(19 Civ. 2117 Doc. #178) is DENIED as to (i) plaintiffs’
respondeat superior claim against the City of Yonkers for
assault and battery, wrongful death, and conscious pain and
suffering, and (ii) plaintiffs’ claims against Braig and Cooper
for excessive force, assault and battery, wrongful death, and
conscious pain and suffering, solely to the extent such claims
are premised on Braig's and Cooper's use of deadly force. The
Yonkers defendants’ motion is otherwise GRANTED.
The Clerk is instructed to terminate the following defendants:
Police Officer Adam Walencik, Detective Thomas Marello,
Sergeant Mark Wissner, Detective Brian Menton, Detective
Terence Malone, Sergeant Joseph Barosa, Detective Michael
McGee, Agent Brendan Kenney, Agent Andrew Fisher, Agent
Daniel Conlon, and Agent Daniel McKenna.
Counsel for the remaining parties shall attend a case
management conference on September 12, 2023, at 11:00
a.m., at which time the Court will set a trial date and
a schedule for pretrial submissions. Counsel shall also be
prepared to discuss what efforts they have made and will
continue to make to settle this case.
All Citations
Not Reported in Fed. Supp., 2023 WL 4867459
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Campbell v. City of Yonkers
© 2025 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 9 Filed 12/08/25 Page 411 of 529

Campbell v. City of Yonkers
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History (2)
Direct History (1)
1. Campbell v. City of Yonkers
2023 WL 4867459 , S.D.N.Y. , July 31, 2023
Related References (1)
2. Campbell v. City of Yonkers
2020 WL 5548784 , S.D.N.Y. , Sep. 16, 2020
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2022 WL 991402
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Yolanda KEYES, Administratrix of the
Estate of Francisco DeJesus; Herron
Emerenciano; and Rashad Scott, Plaintiffs,
v.
Donald VENETTOZZI, Director Special Housing and
Inmate Discipline; Michael Dixon, Sergeant; Jeffery
Rock, Lieutenant; Earl Bell, Deputy Superintendent of
Security; Jerry Kowalowski, Recreation Program Leader;
and Richard Houck, Transfer Coordinator, Defendants.
9:18-CV-0372 (GTS/DJS)
|
Signed 03/31/2022
Attorneys and Law Firms
HALLIE E. MITNICK, ESQ., MEGAN WELCH, ESQ.,
PRISONERS’ LEGAL SERVICES OF NY, Counsel for
Plaintiffs, 114 Prospect Street, Ithaca, NY 14850.
HON. LETITIA A. JAMES, Attorney General for the State
of New York, ERIK B. PINSONNAULT, ESQ., Assistant
Attorney General, Counsel for Defendants, The Capitol,
Albany, NY 12224.
DECISION and ORDER
GLENN T. SUDDABY, Chief United States District Judge
*1 Currently before the Court, in this prisoner civil rights
action filed by Yolanda Keyes (as administratrix of the estate
of Francisco DeJesus), 1 Herron Emerenciano, and Rashad
Scott (“Plaintiffs”) against Special Housing and Inmate
Discipline Director Donald Venettozzi, Sergeant Michael
Dixon, Deputy Superintendent of Security Earl Bell, Sergeant
Jeffery Rock, Recreation Program Leader Jerry Kowalowski,
and Transfer Coordinator Richard Houck (“Defendants”), is
Defendants’ motion for summary judgment. (Dkt. No. 69.)
For the reasons set forth below, Defendants’ motion is granted
in part and denied in part.
1 The Court notes that, for the ease of reading, it will
still refer to Francisco DeJesus as a plaintiff in this
action.
I. RELEVANT BACKGROUND
A. Plaintiffs’ Amended Complaint
Generally, Plaintiffs’ Amended Complaint alleges that
Defendants violated their due process rights and took various
adverse actions against them at Clinton Correctional Facility
(“Clinton”) in 2015 and 2016 as a result of Plaintiffs’ election
(by fellow prisoners) to Clinton's Inmate Liaison Committee
(“ILC”) following the well-publicized escape of two inmates
(Richard Matt and David Sweat) from Clinton's Honor
Block. (Dkt. No. 17 [Pls.’ Am. Compl.].) Five claims in the
Amended Complaint survived the Court's Decision and Order
of September 23, 2019: (1) a First Amendment retaliation
claim by Plaintiff DeJesus against Defendants Dixon and
Rock; (2) a First Amendment retaliation claim by Plaintiff
Emerenciano against Defendants Kowalowski and Bell; (3) a
First Amendment retaliation claim by Plaintiff Scott against
Defendant Houck; (4) a Fourteenth Amendment due process
claim by Plaintiff Emerenciano against Defendants Bell and
Venettozzi; and (6) a supervisory liability claim by Plaintiffs
against Defendant Venettozzi. (Dkt. No. 40, at 50.)
B. Undisputed Material Facts on Defendants’ Motion
for Summary Judgment
Before reciting the undisputed material facts on Defendants’
motion, the Court observes that, in addition to their Rule 7.1
Response, Plaintiffs have submitted what they characterize as
a “Statement of Additional Facts” that “are either undisputed
or at least supported by sufficient record evidence that the
jury could accept them....” (Dkt. No. 73, Attach. 1, at 9-22.)
Of course, no Statement of Undisputed Additional Facts is
permitted under the District's Local Rules of Practice. See
N.D.N.Y. L.R. 56.1(b) (“In addition, the opposing party's
Response may set forth any assertions that the opposing party
contends are in dispute in a short and concise Statement of
Additional Material Facts in dispute ....”) (emphasis added).
Furthermore, many of Plaintiffs’ additional factual assertions
are immaterial to the resolution of the issues presented
by Defendants’ motion. Id. (permitting a “Statement of
Additional Material Facts in Dispute....”) (emphasis added).
However, to the extent Plaintiffs actually assert additional
material facts not in dispute, the Court will take them
into consideration in its below recitation of the undisputed
material facts.
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*2 The following facts were asserted and supported with
accurate record citations by Defendants in their Statement of
Material Facts and either expressly admitted by Plaintiffs or
denied by them without appropriate record citations in their
response thereto. (Compare Dkt. No. 69, Attach. 1 [Defs.’
Rule 7.1 Statement] with Dkt. No. 73, Attach. 1 [Pls.’ Rule
7.1 Resp.].)
Defendant Dixon's Misbehavior
Report Against Plaintiff DeJesus
1. At some point before January 27, 2016, Defendant Dixon
received from the staff at Clinton both a copy of both a
letter authored and sent by Plaintiff DeJesus to the State
Commission on Corrections (“SCOC”) and a direction to
investigate the letter (at least in part) for a possible violation
of disciplinary rules by Plaintiff DeJesus. 2
2 The Court notes that, although Plaintiffs dispute “in
part” this statement of material fact, they cite to no
admissible record evidence controverting it.
2. During his investigation into the matter, Defendant Dixon
interviewed Plaintiff DeJesus.
3. During this interview, Plaintiff DeJesus reiterated the same
assertions that he had included in his letter to the SCOC.
4. Based upon the letter that Plaintiff DeJesus had sent to
the SCOC, his remarks made to Defendant Dixon during
his interview, and Defendant Dixon's consultation with
Defendant Rock, Defendant Dixon issued a misbehavior
report against Plaintiff DeJesus dated January 27, 2016,
charging him with violations of Disciplinary Rules 102.10
and 107.11.
5. On February 1, 2016, Defendant Rock began to conduct
Plaintiff DeJesus’ Tier III disciplinary hearing. Defendant
Rock was the only Defendant who conducted Plaintiff
DeJesus’ Tier III disciplinary hearing.
6. Defendant Rock completed this hearing on February 12,
2016, finding Plaintiff guilty of both charges.
7. On June 3, 2016, Defendant Venettozzi reversed the
decision that had been issued by Defendant Rock after the
completion of the Tier III hearing on February 12, 2016. 3
3 The Court notes that the Superintendent's hearing
reversal resulted in the expunction of both charges
against Plaintiff DeJesus.
8. Defendant Venettozzi electronically signed the document
memorializing the reversal of Defendant Rock's decision.
Defendant Kowalowski's Misbehavior
Report Against Plaintiff Emerenciano
9. Defendant Kowalowski is currently employed by the
New York State Department of Corrections and Community
Supervision (“DOCCS”) as a Recreation Program Leader
Two (“RPL Two”).
10. Excluding a brief stint between early 2016 through July
2016, when he served as a Recreation Program Leader Three
(“RPL Three”) at Upstate Correctional Facility (“Upstate”),
Defendant Kowalowski has held the position of RPL Two at
Clinton since approximately 2004 or 2005.
11. During one of the ILC's meetings at Clinton in or
around October 2015, some ILC members had expressed their
disagreement with a policy that requires inmates to lay on the
ground when an altercation occurs in the prison yard. 4
4 The Court deems this fact to be undisputed because
Plaintiffs have failed to provide a specific record
cite in support of their partial dispute of this
fact. See N.D.N.Y. L.R.(a)(3) (“Each fact listed
shall set forth a specific citation to the record
where the fact is established ... Each denial shall
set forth a specific citation to the record where
the factual issue arises.”); see also, e.g., Rizzo v.
Health Rsch., Inc., 12-CV-1397, 2016 WL 632546,
at *2 (N.D.N.Y. Feb. 16, 2016) (“Of these 136
denials, 117 denials do not contain a specific
citation to the record. Therefore, the facts ‘denied’
by these paragraphs will be deemed admitted.”);
Benson v. Otis Elevator Co., 10-CV-3246, 2012
WL 4044619, at *1, n.1 (S.D.N.Y. Sept. 13, 2012)
(deeming fact asserted by movant to be admitted by
non-movant where non-movant supported denial
“only with non-specific citations to the entire
testimony of several witnesses”); Univ. Calvary
Church v. City of New York, 96-CV-4606, 2000
WL 1538019, at *2, n.6 (S.D.N.Y. Oct. 17, 2000)
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(“Despite the clear language of Rule 56 requiring
specificity, Plaintiffs rarely offers an exact cite in
support of their version of the facts ... [A] vague
cite to all of the exhibits is simply unacceptable.”).
*3 12. During the ILC meeting, Plaintiff Emerenciano
expressed concerns about problems the policy could lead to
at the prison. 5
5 The Court notes that Defendant Kowalowski (who
was present at the meeting) has testified that he
heard Plaintiff Emerenciano say that “it would
only take one inmate to stand up during a similar
situation in the future, and that there will be another
‘eighty-three’ as a result.” Defendant Kowalowski
interpreted this use of the term “eighty-three” as
a reference to a prison riot that had occurred at
Clinton in 1983. However, Plaintiff Emerenciano
has testified that he never said such a thing and had
not even known of the 1983 riot at the time.
13. After this ILC meeting, the administration instructed
Defendant Kowalowski to issue a misbehavior report against
Plaintiff Emerenciano for making threats. 6 Defendant
Kowalowski issued a misbehavior report against Plaintiff
Emerenciano dated October 2, 2015, charging him with
violating Disciplinary Rules 102.10 and 104.12.
6 The Court deems this fact to be undisputed by
Plaintiffs because Plaintiffs’ Rule 7.1 Response
begins with the word “Undisputed,” and then
attempts to provide more “specific[s]” about the
above asserted fact. See Washington v. City of
New York, 05-CV-8884, 2009 WL 1585947, at
*1 n.2 (S.D.N.Y. June 5, 2009) (holding that
“the statement provided by Defendants is taken
as true because Plaintiff[’]s initial response in
each instance is ‘Admit’ ”); CA, Inc. v. New
Relic, Inc., 12-CV-5468, 2015 WL 1611993, at
*2 n.3 (E.D.N.Y. Apr. 8, 2015) (holding that
“the Court will consider each statement provided
by [Plaintiff] as undisputed because [Defendant's]
initial response in each instance is, in fact,
‘Undisputed’ ”).
14. On October 8, 2015, Defendant Bell conducted Plaintiff
Emerenciano's Tier III disciplinary hearing at Upstate.
15. At Plaintiff Emerenciano's Tier III disciplinary hearing,
Defendant Bell served as the hearing officer.
16. Defendant Bell found Plaintiff Emerenciano guilty of the
charges set forth in the misbehavior report that Defendant
Kowalowski had issued.
17. On November 30, 2015, the Acting Director of the
Special Housing and Inmate Disciplinary Program, Corey
Bedard, reviewed and modified Plaintiff Emerenciano's
Special Housing Unit (“SHU”) confinement time from 270
days to 180 days, with 90 of those days being suspended. On
April 16, 2016, Defendant Venettozzi reversed the outcome of
the Tier III disciplinary hearing that had occurred on October
8, 2015.
Defendant Houck's Transfer of Plaintiff Scott
18. Defendant Houck is employed by DOCCS as a
classification analyst in its Office of Classification and
Movement (“OCM”).
19. Defendant Houck works at the DOCCS’ offices located in
Albany, New York, and not at Clinton.
20. In his role as a classification analyst, Defendant Houck
oversees inmate transfers between DOCCS correctional
facilities. Defendant Houck receives reviews from individual
correctional facilities, processes those reviews and decides
these transfers. Specifically, Defendant Houck receives
reviews when a correctional facility sends an electronic copy
of a transfer referral through one of two possible methods.
First, some of the inmate “transfer referrals are scheduled at
the facility, possibly due to a change in security, or due to
an inmate's preference.” Second, some of the inmate transfer
referrals are “unscheduled transfer reviews from facilities for
other reasons, including medical or mental health reasons.”
However, before Defendant Houck receives a transfer referral
from a DOCCS facility, three DOCCS employees—the
Offender Rehabilitation Coordinator (“ORC”), Supervising
Offender Rehabilitation Coordinator (“SORC”), and the
Deputy Superintendent of Programs working at that facility
—ordinarily must approve the transfer referral. Furthermore,
ordinarily, Defendant Houck receives several hundred
transfer referrals each month.
*4 21. On October 7, 2015, Plaintiff Scott underwent what
is known as a “preference lateral transfer” review at Clinton.
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22. Plaintiff Scott had indicated a preference to be transferred
to the Sullivan hub.
23. On or about October 27, 2015, Plaintiff Scott was
transferred from Clinton to Green Haven Correctional
Facility (“Green Haven”).
I. RELEVANT LEGAL STANDARDS
A. Standard Governing Motions for Summary
Judgment
Under Fed. R. Civ. P. 56, summary judgment is warranted if
“the movant shows that there is no genuine dispute as to any
material fact and that the movant is entitled to a judgment as
a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is
“genuine” if “the [record] evidence is such that a reasonable
jury could return a verdict for the [non-movant].” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 7 As for
the materiality requirement, a dispute of fact is “material” if
it “might affect the outcome of the suit under the governing
law.... Factual disputes that are irrelevant or unnecessary will
not be counted.” Anderson, 477 U.S. at 248.
7 As a result, “[c]onclusory allegations, conjecture
and speculation ... are insufficient to create a
genuine issue of fact.” Kerzer v. Kingly Mfg., 156
F.3d 396, 400 (2d Cir. 1998) [citation omitted].
As the Supreme Court has explained, “[the non-
movant] must do more than simply show that there
is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 585-86 (1986).
In determining whether a genuine issue of material fact exists,
the Court must resolve all ambiguities and draw all reasonable
inferences against the movant. Anderson, 477 U.S. at 255.
In addition, “[the movant] bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of the ... [record] which it believes
demonstrate[s] the absence of any genuine issue of material
fact.” Celotex v. Catrett, 477 U.S. 317, 323-24 (1986).
However, when the movant has met its initial burden, the
non-movant must come forward with specific facts showing
a genuine issue of material fact for trial. Fed. R. Civ. P. 56(a),
(c), (e).
B. Standard Governing Claims Under 42 U.S.C. §
1983
Section 1983 of the Civil Rights Act of 1871 provides a civil
claim for damages against any person who, acting under color
of state law, deprives another person of a right, privilege
or immunity secured by the Constitution or the laws of the
United States. 42 U.S.C. § 1983; Thomas v. Roach, 165 F.3d
137, 142 (2d Cir. 1999). Section 1983 does not create any
substantive right in and of itself, but rather serves as the
statutory vehicle by which individuals can seek redress in
federal court for alleged violations of federal statutory or
constitutional rights. It is well established that state prisoners
are protected by Section 1983 and may bring claims based
on their deprivation of rights while subject to confinement.
Cooper v. Pate, 378 U.S. 546, 546 (1964). In a case where
a prisoner is suing prison officials based on their deprivation
of rights, Section 1983 serves a dual purpose: first, to deter
prison officials, acting as state actors, from using their
authority to deprive prisoners of their constitutional rights,
and second, to provide relief to prisoners when necessary.
Wyatt v. Cole, 504 U.S. 158, 161 (1992).
1. Standard Governing Retaliation
Claims Under the First Amendment
*5 To establish a First Amendment retaliation claim under
Section 1983, a prisoner must show the following: “(1) ...
the speech or conduct at issue was protected, (2) ... the
defendant took adverse action against the plaintiff, and
(3) ... there was a causal connection between the protected
speech and the adverse action.” Espinal v. Goord, 558
F.3d 119, 128 (2d Cir. 2009) (internal quotation marks
and citations omitted). “[I]n the prison context ... adverse
action” is “defined ... objectively[ ] as retaliatory conduct
that would deter a similarly situated individual of ordinary
fitness from exercising ... [his or her] constitutional rights.”
Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004)
(internal quotation marks and citation omitted). Notably, “this
objective test applies even where a particular plaintiff was
not himself subjectively deterred; that is, where he continued
to file grievances and lawsuits.” Gill, 389 F.3d at 381. With
respect to the existence of a causal connection between
the plaintiff's alleged protected conduct and the defendant's
alleged adverse action, although “ ‘[a] plaintiff can establish
a causal connection that suggests retaliation by showing
that protected activity was in close in time to the adverse
action[,]’ [s]uch circumstantial evidence of retaliation, ...
without more, is insufficient to survive summary judgment.”
Roseboro v. Gillespie, 791 F. Supp.2d 353, 370 (S.D.N.Y.
2011) (quoting Espinal, 558 F.3d at 129).
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However, “[e]ven if [a] plaintiff makes the appropriate
showing of retaliation, defendants may avoid liability if they
demonstrate that they would have taken the adverse action
even in the absence of the protected conduct.” Brooks v. Rock,
11-CV-1171, 2014 WL 1292232, at *18 (N.D.N.Y. Mar. 28,
2014) (Sharpe, C.J.); Scott v. Coughlin, 344 F.3d 282, 287-88
(2d Cir. 2003) (“Regardless of the presence of retaliatory
motive, ... a defendant may be entitled to summary judgment
if he can show dual motivation, i.e., that even without the
improper motivation the alleged retaliatory action would have
occurred.”) (italics omitted).
“[P]risoner retaliation claims are easily fabricated, and ...
pose a substantial risk of unwarranted judicial intrusion
into matters of general prison administration.” Bennet v.
Goord, 343 F.3d 133, 137 (2d Cir. 2003) (internal quotation
marks and citations omitted). As a result, the Second
Circuit requires courts to “examine prisoners’ claims of
retaliation with skepticism and particular care.” Colon, 58
F.3d at 872. Therefore, “a plaintiff asserting such a claim
bears a heightened burden of proof and must plead the
claim with particularity.” Green v. Phillips, 04-CV-10202,
2006 WL 846272, at *3 (S.D.N.Y. Mar. 31, 2006) (citing
Brown v. Middaugh, 41. F. Supp.2d 172, 191 [N.D.N.Y.
1999]). Furthermore, a plaintiff must provide non-conclusory
allegations in support of his or her retaliation claim.
Green, 2006 WL 846272, at *3; see Williams v. Goord,
111 F. Supp.2d 280, 290 (S.D.N.Y. 2000) (“In recognition
of the reality that retaliation claims can be fabricated
easily, plaintiffs bear a somewhat heightened burden of
proof, and summary judgment can be granted if the claims
appear insubstantial.”) (internal quotation marks and citation
omitted).
Finally, allegations set forth in support of retaliation claims
“may still be deemed conclusory if [they are] (1) largely
unsubstantiated by any other direct evidence and (2) so replete
with inconsistencies and improbabilities that no reasonable
juror would undertake the suspension of disbelief necessary to
credit the allegations made in the complaint.” Smith v. Woods,
03-CV-0480, 2006 WL 1133247, at *3 (N.D.N.Y. Apr. 24,
2006).
2. Standard Governing Procedural Due Process
Claims Under the Fourteenth Amendment
The Fourteenth Amendment's Due Process Clause protects
an individual's procedural and substantive rights. Page v.
Cuomo, 478 F. Supp.3d 355, 370 (N.D.N.Y. 2020). With
regard to an individual's procedural due process rights, a
prisoner “has the right not to be deprived of a protected liberty
interest without due process of law.” Freeman v. Rideout,
808 F.2d 949, 951 (2d Cir. 1986). Therefore, to establish
a procedural due process claim, a plaintiff must show two
elements: “(1) that he possessed a liberty interest and (2) that
the defendants deprived him of that interest as a result of
insufficient process.” Giano v. Selsky, 238 F. Supp.3d 223,
225 (2d Cir. 2001).
*6 With regard to the first element, generally, “[p]rison
discipline implicates a liberty interest when it imposes
atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life.” Burroughs, 325 F.
Supp.3d at 275. To constitute an “atypical and significant
hardship,” the conditions imposed upon the inmate must be
compared with those imposed upon the rest of the population
of the facility as well as those in administrative and protective
confinement.” Id. at 276. The Court should consider both the
duration and the conditions of confinement when assessing
the severity of the hardship. Id. Generally, confinements in
SHU for a period up to 101 days under normal conditions will
not constitute an atypical hardship, while confinement for a
period of more than 305 days has been considered atypical
even under normal conditions. Id. The Second Circuit has
indicated that “the ultimate issue of atypicality is one of law.”
Sealey v. Giltner, 187 F.3d 578, 585 (2d Cir. 1999).
With regard to the second element, generally, the amount
of process given to a plaintiff depends on three factors:
(1) “the private interest that will be affected by the official
action;” (2) “the risk of erroneous deprivation of such interest
through the procedures used;” and (3) “the [g]overnment's
interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute
procedural requirement would entail.” Mathews v. Eldridge,
424 U.S. 319, 335 (1976).
3. Standard Governing Supervisory Liability Claims
Under the First and Fourteenth Amendments
“[P]ersonal 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
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880, 885 [2d Cir. 1991]); see also McKinnon v. Patterson,
568 F.2d 930, 934 (2d Cir. 1977) (reiterating that, in order
to award damages under Section 1983, defendants must be
personally involved in the plaintiff's alleged constitutional
deprivation). Pursuant to this requirement, “a Section 1983
plaintiff must ‘allege a tangible connection between the
acts of the defendant and the injuries suffered.’ ” Austin v.
Pappas, 04-CV-7263, 2008 WL 857528, at *2 (S.D.N.Y.
Mar. 31, 2008) (quoting Bass v. Jackson, 790 F.2d 260, 263
[2d Cir. 1986]) (other citation omitted). More simply stated,
a complaint needs to allege who did what, and how that
behavior is actionable under the law. Hendrickson v. U.S.
Attorney Gen., 91-CV-8135, 1994 WL 23069, at *3 (S.D.N.Y.
Jan. 24, 1994). As for who did what, the Second Circuit
has defined “personal involvement” to include both direct
participation (i.e., the personal participation by a person who
has knowledge of the facts that make their conduct illegal) and
indirect participation (i.e., the ordering or helping of others to
conduct themselves in an unlawful manner). Provost v. City
of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001).
With respect to how to establish the personal involvement
of supervisory officials, “a plaintiff asserting a Section 1983
claim against a supervisory official in his individual capacity
must allege that the supervisor was personally involved in
the alleged constitutional deprivation.” Johnson v. Newburgh
Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001). This
means that “a defendant in a Section 1983 action may not be
held liable for damages for constitutional violations merely
because [he or she] held a high position of authority.” Black
v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); see also Grullon
v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013)
(affirming a district court's dismissal of claims against a
prison officer where the inmate-plaintiff failed to allege the
officer's personal involvement in, or awareness of, the health
and safety concerns raised by the plaintiff).
Until 2009, when the Supreme Court decided Ashcroft v.
Iqbal, 556 U.S. 662 (2009) (“Iqbal”), the Second Circuit's
general rule was that a supervisory official's personal
involvement could have been proven by showing any five
factors:
*7 (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.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (“Colon”).
However, Iqbal cast some doubt on the supervisory liability
test set forth in Colon. See Reynolds v. Barrett, 685 F.3d 193,
205 (2d Cir. 2012) (stating that the decision in Iqbal caused
conflict with the Second Circuit about the continued vitality
of the supervisory liability test, but declining to rule on the
issue because it did not apply to the facts of the case). 8 It was
unclear in the Second Circuit, up until recently, how the Iqbal
decision would affect the Colon test. 9
8 In Iqbal, after a Pakistani Muslim detainee filed suit
against federal officials for confinement based on
religion, race, and/or national origin, the Supreme
Court held that “[b]ecause vicarious liability is
inapplicable to ...§ 1983 suits, a plaintiff must plead
that each Government-official defendant, through
the official's own individual actions, has violated
the Constitution. Iqbal, 556 U.S. at 676.
9 In 2013, the Second Circuit decided two cases
surrounding this issue: (1) in Grullon v. City of
New Haven, the Circuit implied that Iqbal may
have heightened the requirements for showing a
supervisor's personal involvement (but did not
directly rule on it) and (2) in Hogan v. Fischer,
738 F.3d 509, 513 n.3 (2d Cir. 2013), the Circuit
expressed no view on the extent to which Iqbal may
have heightened the requirements for showing a
supervisor's personal involvement. Grullon v. City
of New Haven, 720 F.3d 133, 139 (2d Cir. 2013).
More recently, in 2019, this Court explained that
the Second Circuit had not yet addressed how Iqbal
affected the standards in Colon for establishing
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supervisory liability, it may have limited the Colon
factors (so as to permit the use of only the first and
third factors listed above). Rasheen v. Adner, 356
F. Supp.3d 222, 233-34 (N.D.N.Y. 2019).
In December 2020, the Second Circuit held that “there is no
special rule for supervisory liability” and, that a “plaintiff
must plead and prove ‘that each [g]overnment-official
defendant, through the official's own individual actions, had
violated the Constitution.’ ” Tangreti v. Bachmann, 983 F.3d
609, 616 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 676)
(“Tangreti”). “ ‘The factors necessary to establish a [Section
1983] violation will vary with the constitutional provision
at issue’ because the elements of different constitutional
violations vary.” Tangreti, 983 F.3d at 618 (quoting Iqbal,
556 U.S. at 676). Therefore, any constitutional violation
brought under Section 1983 must be established against the
supervisory official directly. Tangreti, 983 F.3d at 618.
Since Tangreti was decided in December 2020, courts in
this Circuit have interpreted it in the same way: that the
new standard in Tangreti has abrogated and completely
replaced the factors set forth in Colon. See, e.g., Zielinski v.
Annucci, 17-CV-1042, 2021 WL 2744684, at *8 (N.D.N.Y.
July 2, 2021) (explaining that the Second Circuit's holding in
Tangreti abrogated the factors from Colon and catalogued the
confusion over to what extent the Supreme Court's decision in
Iqbal effected those factors); Delaney v. Perez, 19-CV-6084,
2021 WL 3038642, at *3 (S.D.N.Y. July 16, 2021) (stating
that the standards for supervisory liability set out in Colon
may not be used, as they have been replaced with the new
standard set forth in Tangreti: that each government-official,
through the official's own individual actions, must have
violated the Constitution); Smith v. Westchester Cnty., 19-
CV-3605, 2021 WL 2856515, at *6 (S.D.N.Y. July 7, 2021)
(explaining that in the context of a Fourteenth Amendment
claim, the standards for supervisory liability from Colon may
not be used, and instead, a plaintiff must demonstrate, through
factual allegations, that each individual defendant meets all
the elements required by the specific claim raised by the
plaintiff); Savarese v. City of New York, 18-CV-5956, 2021
WL 2784501, at *28 (S.D.N.Y. July 2, 2021) (stating that
Tangreti repudiated Colon and established a new standard);
Hill v. Cook, 21-CV-0851, 2021 WL 2661676, at *3 (D.
Conn. June 29, 2021) (explaining that the Second Circuit
adopted the holding from Iqbal in their decision in Tangreti,
so ultimately, the new standard is that each defendant must
be personally aware of or disregard the alleged constitutional
violation being raised by the plaintiff).
*8 “[I]n order to establish a defendant's individual liability
in a suit brought under § 1983, a plaintiff must show,
inter alia, the defendant's personal involvement in the
alleged constitutional deprivation.” Rasheen v. Adner, 356 F.
Supp.3d 222, 235 (N.D.N.Y. 2019). Where the defendants are
supervisory officials, “a mere linkage to the unlawful conduct
through the prison chain of command (i.e., under the doctrine
of respondeat superior) is insufficient to show his or her
personal involvement in that unlawful conduct.” Id. (citing
Polk Cnty. v. Dodson, 454 U.S. 312, 325 [1981]; Richardson
v. Goord, 347 F.3d 431, 435 [2d Cir. 2003].)
II. ANALYSIS
A. Whether Defendants Are Entitled to Summary
Judgment on Plaintiffs’ First Amendment Retaliation
Claims Against Them
1. Plaintiff DeJesus’ First Amendment
Retaliation Claim Against Defendant Dixon
It is well settled that an inmate's filing of grievances
while participating on an ILC and writing of complaints
to the SCOC constitute constitutionally protected activity.
See Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015)
(holding that “filing or voicing grievances on behalf of
a prison population as a member of an inmate grievance
body, such as the ILC,” constitutes constitutionally protected
conduct); Vega v. Artus, F. Supp.2d 185, 206 (N.D.N.Y.
2009) (Suddaby, J.) (recognizing that filing grievances is a
constitutionally protected activity); Wheeler v. Goord, 03-
CV-0787, 2005 WL 2180451, at *9 (N.D.N.Y. Aug. 29, 2005)
(Peebles, M.J.) (“[P]laintiff's alleged filing of grievances and
writing of letters to prison authorities ... constituted protected
activity within the ambit of First Amendment retaliation
jurisprudence.”).
Moreover, the receipt of a false misbehavior report resulting
in punishment and/or the receipt of a transfer to a different
facility have been found to constitute adverse actions. See
Cabbagestalk v. Hudson, 15-CV-0167, 2016 WL 5404233, at
*4 (N.D.N.Y. Aug. 29, 2016) (Hummel, M.J.) (“[A]n inmate's
transfer to a different facility does constitute an adverse
action if done in retaliation for the inmate's exercise of his
or her rights under the First Amendment.”) (citing Smith v.
Levine, 510 F. App'x 17, 21 [2d Cir. 2013]), adopted by
2016 WL 5394734 (N.D.N.Y. Sept. 27, 2016) (Sharpe, J.);
Reed v. Doe No. 1, 11-CV-0250, 2012 WL 4486086, at *5
(N.D.N.Y. July 26, 2012) (Peebles, M.J.) (finding that the
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“filing of a false misbehavior report can qualify as an adverse
action for the purposes of a First Amendment retaliation”
where the report resulted in a fourteen-day term in keeplock
confinement), adopted by 2012 WL 4486085 (N.D.N.Y. Sept.
27, 2012) (McAvoy, J.); Tafari v. McCarthy, 714 F. Supp.2d
317, 373 (N.D.N.Y. 2010) (Lowe, M.J., Hurd, J.) (finding
that a misbehavior report that resulted in SHU confinement
constituted an adverse action).
As a result, the issue before the Court is whether the
causation element of a retaliation claim has been established.
Defendants argue that Plaintiff DeJesus has failed to provide
evidence that Defendant Dixon issued a misbehavior report
against DeJesus for retaliatory purposes. (Dkt. No. 69, Attach.
2, at 6-9 [Defs.’ Mem. of Law].) 10 According to Defendant
Dixon, he neither attended any ILC meetings nor served on
the IGRC at the relevant time period (i.e., 2015 through 2016),
during which Plaintiff DeJesus made complaints of assault
and harassment by DOCCS staff. (Id. at 7-8.)
10 Page references to documents identified by docket
number are to the numbers assigned by the CM/
ECF docketing system maintained by the Clerk's
Office, and not the numbers on the documents
themselves.
*9 More specifically, Defendant Dixon argues that he
received a copy of the letter-complaint that Plaintiff DeJesus
had sent to the SCOC, and was directed to investigate
whether Plaintiff DeJesus had violated any prison disciplinary
rules. (Dkt. No. 69, Attach. 6, at 2 [Dixon Decl.].) As part
of his investigation, Defendant Dixon interviewed Plaintiff
DeJesus, and Plaintiff DeJesus repeated the same assertions
that he had made in his letter to the SCOC. (Id.) At the
conclusion of his investigation, Defendant Dixon believed
that Plaintiff DeJesus “constituted a threat ... to the safety and
operation of the facility.” (Id.) Specifically, Defendant Dixon
believed that the letter written to SCOC had indicated that
Plaintiff DeJesus “would take action against any [DOCCS]
staff member who attempted to discipline [him] for future
misconduct.” (Id.) Before issuing the misbehavior report to
Plaintiff DeJesus, Defendant Dixon consulted with both a
member of the IGRC and Clinton's “tier hearing lieutenant”
to determine if Defendant Dixon was correctly perceiving a
threat from Plaintiff DeJesus. (Id. at 2-3.) 11 Both individuals
informed Defendant Dixon that Plaintiff DeJesus’ actions
warranted the issuance of a misbehavior report. (Id.)
11 The Court notes that this “tier hearing lieutenant”
was Defendant Rock (Dkt. No. 69, Attach. 10, at
78.)
Not surprisingly, Plaintiff DeJesus disputes Defendant
Dixon's version of events. Plaintiff DeJesus argues that
Defendant Dixon issued him a misbehavior report “expressly
upon the nature and content of his complaint letter [sent]
to the SCOC,” and his statement that he would pursue
legal action if his protected conduct resulted in unlawful
retaliation. (Dkt. No. 73, at 19-20 [Pls.’ Opp'n Mem. of Law].)
More specifically, Plaintiffs argue that it is undisputed that
Defendant Dixon issued a misbehavior report to Plaintiff
DeJesus for “filing grievances and writing complaints to the
SCOC and imposing disciplinary sanctions and placing him
in [k]eeplock confinement as retaliation for [filing] those
grievances, all of which resulted in his summary removal
from the ILC and loss of an opportunity to appear early
before the merit parole board for release consideration.” (Id.
at 18-24.)
According to Defendant Dixon's inmate misbehavior report
against Plaintiff DeJesus dated January 27, 2016, Plaintiff
DeJesus was interviewed in the IGRC office about the letter
complaint he had sent to the SCOC regarding DOCCS
officers Benware and Favreau. (Dkt. No. 69, Attach. 18.)
Furthermore, according to the misbehavior report, Plaintiff
DeJesus had written that “any attempt to discipline him will
result in a ‘[c]ivil [a]ction’ against [DOCCS officers Benware
and Favreau].” (Id.) As a result, according to the misbehavior
report, Defendant Dixon charged Plaintiff DeJesus with
making threats and engaging in verbal harassment, and
ordered that he “keeplocked,” because Defendant Dixon had
found that Plaintiff DeJesus’ statements constituted a “clear
threat to the operation of 40-1 building where he is housed
as well as the safety of [DOCCS] [o]fficers Benware and
Favreau.” (Id.)
Generally, no violation of Rules 102.10 and 107.11 occurs
when a prisoner tells a corrections officer that the prisoner will
file a lawsuit against the corrections officer, unless the lawsuit
is patently frivolous. Compare Davidson v. Lee, 104 F.3d 352,
at *1 (2d Cir. 1996) (denying defendants’ motion for summary
judgment where “Wood's [misbehavior] report arguably
supports Davidson's allegation as it refers to Davidson's threat
of litigation—‘I'm going to sue you and your family’—
therefore indicating that Davidson's propensity for filing
lawsuits may have been a factor the defendants considered in
filing the reports.”) and Amaker v. Goord, 06-CV-0490, 2012
WL 4718661, at *7 (W.D.N.Y. Aug. 16, 2012) (“[T]he hearing
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officer found ‘[i]ndicating you intend to sue is not a violation
of 102.10’ ....”) with Henry v. Dinelle, 10-CV-0456, 2011 WL
5975027, at *7, n.11 (N.D.N.Y. Nov. 29, 2011) (“[F]iling a
court action that is frivolous is not constitutionally protected
activity.”).
Here, based on the current record, the Court is unable to find
that the lawsuit referenced by Plaintiff DeJesus was patently
frivolous. The Court respectfully disagrees with Defendant
Rock's understanding that Plaintiff DeJesus was saying that
he would sue even if he were charged with a disciplinary
violation “for good cause.” (Dkt. No. 69, Attach. 14, at 81.)
To the contrary, Plaintiff DeJesus expressly conditioned the
filing of a lawsuit on “any fabrication of contraband; drugs;
weapons, etc.” (Dkt. No. 69, Attach. 19, at 8 [emphasis
added].)
*10 Under the circumstances, the Court finds that a jury
could reasonably find that there was a causal connection
between Plaintiff DeJesus’ protected speech (i.e., his
statement that he would pursue future legal action against
officers Benware and Favreau if they continued to discipline
him) and the adverse action taken by Defendant Dixon (i.e.,
his filing of the misbehavior report against Plaintiff DeJesus
that resulted in his keeplock confinement).
For all these reasons, the Court denies Defendants’ motion for
summary judgment on Plaintiff DeJesus’ First Amendment
retaliation claim against Defendant Dixon.
2. Plaintiff DeJesus’ First Amendment
Retaliation Claim Against Defendant Rock
Defendants argue that Plaintiff DeJesus has failed to provide
evidence that Defendant Rock took any adverse action
against DeJesus and that, if he did so, the adverse action
was caused by DeJesus’ protected speech. (Dkt. No. 69,
Attach. 2, at 9-10 [Defs.’ Mem. of Law].) More specifically,
Defendants argue that no evidence exists that Defendant Rock
conspired with any other Defendants, or served as a biased
hearing officer at Plaintiff DeJesus’ Tier III disciplinary
hearing. (Id.) Defendants also argue that the admissible
record evidence indicates that Defendant Rock was not
involved in the investigation into Plaintiff DeJesus’ alleged
misbehavior before being appointed hearing officer. (Id.)
Finally, Defendants argue that Defendant Rock was unaware
of Plaintiff DeJesus’ discipline history, because he was never
mentioned in any of Plaintiff DeJesus’ prior grievances made
against officers Benware and Favreau, he never served in an
active capacity at the ILC meetings, and no other Plaintiffs
testified to interacting with (or even meeting) Rock. (Id.)
Plaintiffs respond that Defendant Rock acted with a
retaliatory motivation when he improperly punished Plaintiff
DeJesus for engaging in protected conduct. (Dkt. No. 73, at
24 [Pls.’ Opp'n Mem. of Law].) More specifically, Plaintiffs
argue that “[i]t is clear from the content of the misbehavior
report, which Defendant Rock upheld and condoned, that ‘but
for’ Mr. DeJesus’ protected activities the misbehavior report
would not have been issued [sic].” (Id.)
Defendant Rock served as the presiding hearing officer for
Plaintiff DeJesus’ Tier III disciplinary hearing. According
to his declaration, when Defendant Rock was scheduled to
serve as a hearing officer, he would not partake in any
substantive pre-hearing discussions with DOCCS staff. (Dkt.
No. 69, Attach. 5, at 3 [Rock Decl.].) At the conclusion of
Plaintiff DeJesus’ Tier III disciplinary hearing, Defendant
Rock found Plaintiff DeJesus guilty of the charges contained
within the misbehavior report issued by Defendant Dixon.
(Id.) More precisely, Defendant Rock determined that, by
threatening future legal action, Plaintiff DeJesus “was trying
to preemptively identify future conflicts with [DOCCS] staff
as retaliation and to potentially deter staff from doing their
jobs.” (Id.)
“An inmate subject to a disciplinary proceeding is entitled to
an impartial hearing officer.” Allen v. Cuomo, 100 F.3d 253,
259 (2d Cir. 1996). An impartial hearing officer is “one who,
inter alia, does not prejudge the evidence and who cannot
say ... how he would assess the evidence he has not seen yet.”
Patterson v. Coughlin, 905 F.2d 564, 569-70 (2d Cir. 1990);
see also Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989)
(“[I]t would be improper for prison officials to decide the
disposition of a case before it was heard.”).
*11 Granted, “prison disciplinary officers are not held to the
same standard of neutrality as adjudicators in other contexts.”
Allen, 100 F.3d at 259. “The degree of impartiality required
of prison officials does not rise to the level of that required of
judges generally.” Id. On a motion for summary judgment, an
inmate's subjective belief that the hearing officer was biased is
insufficient to create a genuine issue of material fact. Francis,
891 F.2d at 47; Clyde v. Schoellkopf, 714 F. Supp.2d 432,
437-38 (W.D.N.Y. 2010).
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Here, it is uncontroverted that that Defendant Dixon consulted
with Defendant Rock before he issued the misbehavior
report to Plaintiff DeJesus. (Dkt. No. 69, Attach. 10, at 78.)
According to Defendant Dixon, Defendant Rock “concurred
with [his] interpretation” that, in Plaintiff DeJesus’ letter
to SCOC, his threat of future “civil action,” constituted a
“threat[ ] [against] two officers in the operation of the dorm,”
thereby warranting the issuance of a misbehavior report.
(Id. at 78.) Moreover, liberally construed, Plaintiff DeJesus’
retaliation claim against Defendant Rock alleges retaliation
not simply by failing to recuse himself as the hearing officer
(due to his involvement in the charging decision) 12 but
by conspiring with Defendant Dixon to charge him without
adequate grounds. (Dkt. No. 1, at ¶¶ 13, 67, 83, 183, 185.)
12 The Court notes that “both DOC[C]S regulations
and the law of this Circuit prohibit a prison official
who was involved in investigating the underlying
charges from acting as a hearing officer.” Silva
v. Sanford, 91-CV-1776, 1994 WL 455170, at
*12 (S.D.N.Y. Aug. 18, 1994); see also Powell v.
Ward, 542 F.2d 101, 103 (2d Cir. 1976) (“[N]o
person who has participated in the investigation
of [the] acts complained of or who has been
a witness to such acts could be a member of
a ... Superintendent's Proceeding relating to those
acts.” [emphasis added]).
For these reasons, the Court denies Defendants’ motion for
summary judgment on Plaintiff DeJesus’ First Amendment
retaliation claim against Defendant Rock.
3. Plaintiff Emerenciano's First Amendment
Retaliation Claim Against Defendant Kowalowski
Defendants argue that Plaintiff Emerenciano has failed to
provide any evidence establishing that any adverse action
taken by Defendant Kowalowski against Emerenciano was
caused by Emerenciano's protected speech. (Dkt. No. 69,
Attach. 2, at 10 [Defs.’ Mem. of Law].) Instead, Defendants
argue that Plaintiff Emerenciano could only “surmise” that
Defendant Kowalowski “probably had to retaliate against
[him]” because of a prior grievance that Plaintiff Emerenciano
had submitted against Defendant Kowalowski. 13 (Id.)
13 The Court notes that Plaintiff Emerenciano
had submitted a grievance against Defendant
Kowalowski because Kowalowski had not placed
Emerenciano on the ILC callout list. (Dkt. No.
69, Attach. 17, at 53-54 [Emerenciano Tr.].) In
the same grievance, Plaintiff Emerenciano also
requested that Defendant Kowalowski be removed
from his role as the ILC civilian representative.
(Id.)
In response, Plaintiffs argue that the evidence establishes
as follows: (1) Plaintiff Emerenciano engaged in protected
conduct when he was voicing and relaying his constituents’
concern at the ILC meeting regarding a newly-imposed prison
yard policy that had been implemented by Defendant Bell; (2)
Defendant Kowalowski issued a misbehavior report against
Plaintiff Emerenciano for engaging in that protected conduct;
and (3) Plaintiff Emerenciano's protected conduct directly
caused Defendant Kowalowski to issue the misbehavior
report. (Dkt. No. 73, at 25-29 [Pls.’ Opp'n Mem. of Law].)
*12 During a Clinton ILC meeting in or around October
2015, Plaintiff Emerenciano and his fellow ILC members
expressed disagreement with a newly implemented policy
implemented by Defendant Bell that required inmates to
remain seated on the prison yard ground when an altercation
occurs. 14 (Dkt. No. 73, Attach. 13, at 1-2.) In particular,
inmates expressed the collective frustration that this new
policy required them to either lay down or sit on the ground
for approximately 20 to 30 minutes if any sort of altercation
between inmates occurred in the prison yard, and as a
result, be exposed to the potentially severe weather for an
unnecessarily long period of time. (Id.) For example, at the
ILC meeting, Plaintiff Emerenciano discussed a previous
fistfight (where no weapons were involved) that had occurred
between two inmates in Clinton's North Yard. (Id.) After
DOCCS officers had broken-up the fistfight and escorted
the two involved inmates off the yard, the other inmates
(who were not involved in the altercation) in the yard were
required to sit “in the cold [and] mud” for approximately
25 minutes. (Id.) At the ILC meeting, Plaintiff Emerenciano
communicated to Sergeant Hutti, Clinton's Yard Sergeant, that
the inmates were left feeling frustrated and angry that day. (Id.
at 1-2.) In addition, Plaintiff Emerenciano informed Sergeant
Hutti that, in the approaching winter months, inmates may
be less willing to comply with this new policy given the
cold weather. (Id. at 2.) Plaintiff Emerenciano stated that one
inmate's decision to not comply with this policy may create a
“chain reaction” in other inmates—a conflict that he wished
to avoid. (Id.)
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14 Defendant Kowalowski attended this ILC meeting
as the “civilian staff advisor.” (Dkt. No. 73, Attach.
13, at 1.)
Approximately 45 minutes after the ILC meeting had ended,
when Plaintiff Emerenciano had already returned to his cell,
four DOCCS officers placed him in keeplock restraints and
escorted him to SHU. (Id.) After spending almost three hours
in SHU, Plaintiff Emerenciano was informed that he was
being transferred to Upstate later that same day. (Id.) On
October 2, 2015, Plaintiff Emerenciano was transferred from
Clinton to the SHU at Upstate. (Dkt. No. 73, Attach. 15.)
On October 5, 2015, Plaintiff Emerenciano was served a
misbehavior report issued by Defendant Kowalowski. (Id.)
According to this misbehavior report, at the ILC meeting,
“[Plaintiff Emerenciano] stated that if [the policy requiring
inmates to remain on the ground of the prison yard] continues
we will have another 83 ....” (Dkt. No. 69, Attach. 25, at 1.)
Under these circumstances, the Court finds that there is a
genuine dispute of material fact as to the second element of
a claim for retaliation. While a “prison inmate has no general
constitutional right to be free from being falsely accused
in a misbehavior report,” “false accusations contained in a
misbehavior report can rise to the level of a constitutional
violation ... where the false accusation is based on something
more, such as ‘retaliation against the prisoner for exercising
a constitutional right.’ ” Tafari v. McCarthy, 714 F. Supp.2d
317, 372 (N.D.N.Y. 2010) (quoting Boddie v. Schnieder, 105
F.3d 857, 862 [2d Cir. 1997]). In other words, in the context
of a retaliation claim, there is no question that a falsified
misbehavior report constitutes an adverse action. See Gill,
389 F.3d at 381 (holding that a plaintiff's allegations that
defendants issued false misbehavior reports against him was
sufficient to allege adverse action).
As a result, again, the issue before the Court is whether the
causation element of a retaliation claim has been established.
According to Defendant Kowalowski's deposition testimony,
the basis for his issuing of a misbehavior report against
Plaintiff Emerenciano was Emerenciano's reference to a
prison riot that had occurred at Clinton in 1983. (Dkt.
No. 69, Attach. 13, at 139-142, 146 [Kowalowski Tr.].)
Specifically, Defendant Kowalowski testified that, during the
ILC committee meeting, Plaintiff Emerenciano stated that
the newly implemented prison yard policy could lead to
frustration among the inmates, which may ultimately lead to
a riot (similar to the riot at Clinton Correctional Facility in
1983). (Id.)
Plaintiff Emerenciano argues that he made no such reference
to the 1983 Clinton prison riot, and therefore Defendant
Kowalowski's falsified misbehavior report constituted an
adverse action. (Dkt. No. 73, at 25-26 [Pls.’ Opp'n Mem.
of Law].) In fact, Plaintiff Emerenciano testified that
he was “unaware of any incident [at Clinton] in 1983”
until Defendant Kowalowski issued him the misbehavior
report. (Dkt. No. 69, Attach. 17, at 52 [Emerenciano
Tr.].) Additionally, other members—Inmate Leon, Inmate
Rashawn Scott, Inmate David Maxwell, Inmate Selah, Inmate
Newman, Inmate Matos—of the ILC committee testified to
the fact that they did not recall hearing Plaintiff Emerenciano
remark to an “83.” (Dkt. No. 69, Attach. 26, at 11, 14-15, 18,
20-21, 24-25, 29-30.) Instead, Plaintiff Emerenciano argues
that, given his role on the ILC committee, he was merely
informing DOCCS staff of the inmates’ growing frustration
regarding the prison yard policy, and proposing possible
solutions for the future. (Dkt. No. 73, at 26-27 [Pls.’ Opp'n
Mem. of Law].) Finally, of at least some materiality is the fact
that Plaintiff Emerenciano had previously filed a grievance
against Defendant Kowalowski.
*13 For all of these reasons, the Court denies Defendants’
motion for summary judgment on Plaintiff Emerenciano's
First Amendment retaliation claim against Defendant
Kowalowski.
4. Plaintiff Emerenciano's First Amendment
Retaliation Claim Against Defendant Bell
Defendants argue Plaintiff Emerenciano has failed to provide
evidence showing “one particular thing” that would motivate
Defendant Bell to retaliate against him. (Dkt. No. 69, Attach.
2, at 14 [Defs.’ Mem. of Law].)
Plaintiff Emerenciano responds (persuasively) that has
adduced admissible record evidence from which a reasonable
juror could find that (1) Emerenciano had engaged in
constitutionally protected conduct by voicing generalized
inmate concern over the newly implemented prison yard
policy to Defendant Kowalowski, and (2) he suffered an
adverse action by being charged with a disciplinary violation
by Defendant Kowalowski, and was found guilty at his Tier
III disciplinary hearing and then punished by Defendant Bell.
(Dkt. No. 73, at 25-29 [Pls.’ Opp'n Mem. of Law].) Less clear,
however, is whether Plaintiff Emerenciano has shown a causal
connection between his protected conduct and the adverse
action by Defendant Bell.
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Generally, “it is difficult to establish one defendant's
retaliation for complaints against another defendant.” Hare
v. Hayden, 09-CV-3135, 2011 WL 1453798, at *4 (S.D.N.Y.
Apr. 14, 2011) (citing Wright v. Goord, 554 F.3d 255, 274
[2d Cir. 2009]). Here, Plaintiff Emerenciano must show “a
genuine issue of material fact that the protected conduct was
a substantial or motivating factor in his discipline.” Graham
v. Henderson, 89 F.3d 75, 81 (2d Cir. 1996).
Defendant Kowalowski has testified that, after the ILC
meeting at which Plaintiff Emerenciano had allegedly
mentioned the 1983 Clinton riot, Kowalowski informed
Defendant Bell of the remarks that Plaintiff Emerenciano
had made. (Dkt. No. 69, Attach. 13, at 140-41 [Kowalowski
Tr.].) However, Plaintiff Emerenciano has not provided any
admissible evidence supporting a reasonable finding that
Defendant Bell had somehow been made aware of the fact
that Defendant Kowalowski had been lying, and/or that any
portion of his misbehavior report had been falsified (an issue
that still remains in dispute). In addition, before the taking
of the adverse action at issue, Plaintiff Emerenciano had
never filed any grievances against Defendant Bell, and had
had no interaction with him. (Dkt. No. 69, Attach. 17, at
15-16 [Emerenciano Tr.].) At best, Plaintiff Emerenciano has
provided only conclusory allegations that Defendant Bell
acted with a retaliatory motivation when he found him guilty
at Emerenciano's Tier III disciplinary hearing.
The Court would add only that a guilty finding in an inmate
disciplinary hearing only needs to be supported by “some
evidence from the conclusion ... could be deduced.” Hill
v. Superintendent, 472 U.S. 445, 455 (1987). “[I]t is well-
established that a correction officer's misbehavior report may
constitute reliable evidence of guilt.” Chavez v. Gutwein,
20-CV-0342, 2021 WL 4248917, at *12 (S.D.N.Y. Sept.
17, 2021) (citing Jensen v. Mullin, 14-CV-1337, 2016 WL
5394744, at *4 [N.D.N.Y. Sept. 27, 2016]). Here, the Court
need not scrutinize Defendant Bell's reliance on certain pieces
of evidence at Plaintiff Emerenciano's Tier III disciplinary
hearing, because it is the hearing officer's responsibility, not
the Court's, to make determinations regarding a witness's
credibility. See Hill, 472 U.S. at 455 (explaining that
application of the “some evidence” standard does not require
that the Court conduct an independent assessment of the
credibility of the witnesses).
*14 For all of these reasons, the Court grants Defendants’
motion for summary judgment on Plaintiff Emerenciano's
First Amendment retaliation claim against Defendant Bell.
5. Plaintiff Scott's First Amendment
Retaliation Claim Against Defendant Houck
Defendants argue that Plaintiff Scott has failed to show
that, before Defendant Houck authorized Scott's facility
transfer, Houck had been aware of Scott's exercise of his
constitutional rights. (Dkt. No. 69, Attach. 2, at 14-17 [Defs.’
Mem. of Law].) According to Defendants, it was Plaintiff
Scott himself who had requested the facility transfer. (Id. at
16.) Therefore, Defendants argue that Plaintiff Scott has not
shown that there was a causal connection between Defendant
Houck's approval of Plaintiff Scott's facility transfer request
and Scott's communication with media outlets and elected
officials who were seeking information on the 2015 prison
escape of inmates David Sweat and Richard Matt. (Id.)
Plaintiffs respond that Defendant Houck retaliated against
Plaintiff Scott by abruptly facilitating his transfer from
Clinton to the Green Haven hub. (Dkt. No. 73, at 29-32 [Pls.’
Opp'n Mem. of Law].) According to Plaintiffs, Defendant
Houck retaliated against Plaintiff Scott because Scott had
communicated with outside entities, including the media and
the New York Times, about the living conditions at Clinton.
(Id. at 29.) More precisely, Plaintiffs argue that a jury could
reasonably conclude, based on the nature and timing of
Plaintiff Scott's transfer that, Defendant Houck retaliated
against him by having him summarily removed from both the
ILC and Clinton. (Id.)
It is well established that a prison official may not transfer
an inmate in retaliation for the exercise of a constitutional
right. Smith v. Greene, 06-CV-0505, 2010 WL 985383, at *8
(N.D.N.Y. Feb. 3, 2010) (Baxter, M.J.) (citing Davis v. Kelly,
160 F.3d 917, 920 [2d Cir. 1998]) report-recommendation
adopted by 2010 WL 985388 (N.D.N.Y. Mar. 16, 2010)
(Suddaby, J.).
Plaintiff Scott has adduced admissible record evidence
from which a rational jury could find that he engaged in
constitutionally protected conduct when he communicated
with reporters from the New York Times to discuss the
overall environment and alleged mistreatment and abuse of
incarcerated individuals by DOCCS staff at Clinton during the
aftermath of the 2015 prison escape. Plaintiff Scott has also
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adduced admissible record evidence from which a rational
jury could find that he suffered adverse action by being
transferred from Clinton to the Green Haven hub.
As a result, again, the issue before the Court is whether the
causation element of a retaliation claim has been established.
To establish a causal connection between protected conduct
and an adverse action, a plaintiff must show that “the
protected conduct was a substantial or motivating factor in the
prison officials’ decision to take action against the plaintiff.”
Ciaprazi v. Goord, 02-CV-0915, 2005 WL 3531464, at *6
(N.D.N.Y. Dec. 22, 2005) (internal quotation marks omitted).
When evaluating whether a causal connection exists between
the protected conduct and the adverse action, a court may
consider the following: “(1) the temporal proximity between
the protected activity and the alleged retaliatory act; (2) the
inmate's prior good disciplinary record; (3) vindication at a
hearing on the matter; and (4) statements by the defendant
concerning his motivation.” Vega v. Artus, 610 F. Supp.2d
185, 207 (N.D.N.Y. 2009).
*15 To establish the third element of his retaliation claim,
Plaintiff Scott relies primarily on the shortness of time
between his making a transfer request and receiving a transfer
(which was less than a month). 15 (Dkt. No. 73, at 30 [Pls.’
Opp'n Mem. of Law].) Moreover, Plaintiff Scott argues that
a jury could reasonably accept his testimony that “he did not
want to go to the Green Haven hub, nor that he ever expected
such a swift transfer that would prevent him completing his
ILC term at Clinton.” (Id.)
15 In his role as a DOCCS classification analyst,
Defendant Houck oversees inmate transfers
between DOCCS correctional facilities. (Dkt.
No. 69, Attach. 7, at 2 [Houck Decl.].) At
the beginning of each month, Defendant Houck
receives several hundred transfer referrals from the
DOCCS facilities. (Id. at 3.)
Defendant Houck receives electronic reviews from individual
correctional facilities, and based on these reviews, classifies
inmates based on a security level. 16 (Dkt. No. 69, Attach.
11, at 20-21 [Houck Tr.].) Defendant Houck received Plaintiff
Scott's facility transfer request on which he indicated that he
wanted to be transferred to the Sullivan hub for programming
purposes. (Dkt. No. 69, Attach. 30, at 4.) According to
Defendant Houck, DOCCS staff at Clinton approved Plaintiff
Scott's transfer request on October 9, 2015. 17 (Dkt. No. 69,
Attach. 11, at 60 [Houck Tr.].) On October 26, 2015, Plaintiff
Scott was transferred from Clinton to the Green Haven hub.
(Dkt. No. 69, Attach. 31.)
16 The Court notes that inmates are reviewed on semi-
annual basis for a potential facility transfer. (Dkt.
No. 69, Attach. 7, at 3 [Houck Decl.].) This review
includes an interview of the inmate. (Id.)
17 Before Defendant Houck receives a transfer
referral from a correctional facility, three DOCCS
employees must ordinarily approve the referral:
the offender rehabilitation coordinator (“ORC”),
the supervising offender rehabilitation coordinator
(“SORC”), and the deputy superintendent of
programs. (Dkt. No. 69, Attach. 7, at 2 [Houck
Decl.].)
However, although Plaintiff Scott had requested to be
transferred to the Sullivan hub, there was no guarantee that
DOCCS would have been able to accommodate his request.
Simply put, Plaintiff Scott overlooks the fact that he had no
right to be confined to an institution of his choosing. See
Davis, 160 F.3d at 920 (“A prisoner has no liberty interest in
remaining at a particular correctional facility.”).
Generally, the most desirable DOCCS “hubs” (amongst
inmates) are located in the downstate area of New York. 18
(Id. at 5.) As a result, these hubs have the longest waiting
list for inmates seeking a transfer to them. 19 (Id.) Therefore,
when an inmate requests to be transferred to a facility in any of
the three downstate hubs, Defendant Houck selects a facility
based on that inmate's preference, the availability of bed space
at those facilities, and the relevant security concerns. (Id.)
Ultimately, the goal of overseeing an inmate's facility request
is to have the inmate transferred to the facility that is closest to
his or her preferred location (subject to the available bed space
and security considerations). (Id.) Finally, an inmate plays
no part in making the final determination regarding which
facility he or she is transferred to. (Id.)
18 The Court notes that the most desirable DOCCs
hubs include the Sullivan hub, the Green Haven
hub, and the New York City hub. (Dkt. No. 69,
Attach. 7, at 5 [Houck Decl.].)
19 According to Defendant Houck, the wait time for
inmates seeking a transfer to the Green Haven hub
ordinarily takes approximately one year. (Dkt. No.
69, Attach. 11, at 56 [Houck Tr.].) However, the
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Sullivan hub experiences wait times approximately
up to two years because of its small maximum-
security orientation. (Id. at 56-57.)
*16 Moreover, the Court is not persuaded by Plaintiff Scott's
argument that he “[n]ever expected such a swift transfer
that would prevent him from completing his ILC term at
Clinton.” (Dkt. No. 73, at 30 [Pls.’ Opp'n Mem. of Law].)
The Court notes that Plaintiff Scott could have submitted
his facility transfer once his ILC term had ended (and not
before) if he wished to serve-out the remaining portion of
his term on the ILC, or at least specified the time that
he wanted to be transferred. Given the other evidence in
the case, it is of no consequence that Plaintiff Scott was
transferred less than thirty days after submitting his request,
because it is well-settled that “temporal proximity without
more is insufficient to survive summary judgment.” Cooper v.
Annucci, 18-CV-0762, 2020 WL 8474802, at *14 (N.D.N.Y.
Nov. 9, 2020) (Hummel, M.J.) (quoting Flynn v. Ward, 15-
CV-1028, 2018 WL 3195095, at *11 [N.D.N.Y. June 7,
2018]). Indeed, Plaintiff Scott could only “surmise” that his
transfer was made in retaliation based on the relative speed
at which his transfer had been processed. (Dkt. No. 69,
Attach. 13, at 76 [Scott Tr.].) Such speculation, of course,
is insufficient to create a genuine dispute of material fact.
See Henson v. Gagnon, 13-CV-0590, 2015 WL 9809874, at
*12 (N.D.N.Y. Dec. 10, 2015) (Dancks, M.J.) (“[C]onclusory
statements are not sufficient to support causation in retaliation
claims; the claims must be supported by specific facts.”),
report and recommendation adopted by, 2016 WL 204494
(N.D.N.Y. Jan. 15, 2016).
Finally, Plaintiff Scott argues that DOCCS is prohibited from
transferring an inmate to another facility while that inmate
is serving on the IGRC. 20 (Id. at 30-31.) The Court finds
this argument to be unconvincing, because, as Plaintiff Scott
himself correctly points out, he was not a member of the IGRC
at the time of his transfer to the Green Haven hub.
20 The Court notes that 7 N.Y.C.R.R. § 701.4 details
the procedures for removing an inmate from his or
her role on the IGRC.
For all of these reasons, the Court grants Defendants’ motion
for summary judgment on Plaintiff Scott's First Amendment
retaliation claim against Defendant Houck.
B. Whether Defendants Are Entitled to Summary
Judgment on Plaintiffs’ Fourteenth Amendment Due
Process Claims Against Them
1. Plaintiff Emerenciano's Fourteenth Amendment
Due Process Claim Against Defendant Bell
In their response to Defendant's motion for summary
judgment, Plaintiffs have not opposed Defendants’ request
for judgment on Plaintiff Emerenciano's due process claim
against Defendant Bell. (Dkt. No. 73, at 7, n.2 [Pls.’ Opp'n
Mem. of Law].) For these reasons, and the reasons stated in
Defendants’ memoranda of law, the Court grants Defendants’
motion for summary judgment on this claim.
2. Plaintiff Emerenciano's Fourteenth Amendment
Due Process Claim Against Defendant Venettozzi
Defendants argue that the Court must grant summary
judgment on Plaintiff Emerenciano's due process claim
against Defendant Venettozzi, because Emerenciano has
failed to establish Venettozzi's personal involvement in the
alleged incidents giving rise to the violation of Emerenciano's
due process rights. (Dkt. No. 69, Attach. 2, at 18-19 [Defs.’
Mem. of Law].)
Plaintiffs respond that Defendant Venettozzi was personally
involved in the deprivation of Plaintiff Emerenciano's
constitutional rights, because the evidence shows that
Defendant Venettozzi modified the Tier III disciplinary
hearing officer's determination. (Dkt. No. 73, at 35-36
[Pls.’ Opp'n Mem. of Law].) Moreover, the Second
Circuit's ruling in Tangreti, Plaintiffs urge the Court to
reconsider its dismissal of their supervisory claim against
Defendants Annucci and Kirkpatrick based on their deliberate
indifference. (Id.)
The Court will address Plaintiffs’ arguments out of order,
beginning with the argument urging reconsideration of the
Court's Decision and Order of September 23, 2019. When
a party files a motion for reconsideration, “[t]he standard
for granting such a motion is strict, and reconsideration
will generally be denied unless the moving party can point
to controlling decisions or data that the court overlooked-
matters, in other words, that might reasonably be expected to
alter the conclusions reached by the court.” Shrader v. CSX
Transp., 70 F.3d 255, 257 (2d Cir. 1995). Such a motion is
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“not a vehicle for relitigating old issues, presenting the case
under new theories, securing a rehearing on the merits, or
otherwise taking a ‘second bite at the apple[.]’ ” Analytical
Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 41 (2d Cir.
2012) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144
[2d Cir. 1998].)
*17 In support of Plaintiffs’ sole argument for
reconsideration (that, “even before Tangreti[,] the Second
Circuit had indicated that there are cases where deliberate
indifference is so egregious that it rises to and can satisfy a
requisite unlawful discriminatory intent”), they fail to provide
the Court with any new controlling decisions or data that it
had overlooked in initially deciding the matter on Defendants’
motion to dismiss. (Dkt. No. 73, at 36 [Pls.’ Opp'n Mem.
of Law].) In other words, Plaintiffs merely provided the
Court with argument that it had already considered on the
motion to dismiss. For this reason, Plaintiffs’ motion for
reconsideration is denied as to the supervisory liability claims
against Defendants Annucci and Kirkpatrick.
Turning to Plaintiffs’ other argument (that Defendant
Venettozzi was personally involved in the deprivation of
Plaintiff Emerenciano's constitutional rights), the Court
begins by observing that, in his role as the DOCCS’
Director of Office of Special Housing and Inmate Discipline,
Defendant Venettozzi oversees the appeals submitted
by inmates stemming from their disciplinary hearing
determinations. (Dkt. No. 69, Attach. 12, at 23-24 [Venettozzi
Tr.].) Although Defendant Venettozzi's office does not
supervise the disciplinary hearing officers, it does contact the
hearing officer if an inmate appeals the hearing determination.
(Id. at 24.) Among the DOCCS employees assigned to the
Office of Special Housing and Inmate Discipline are support
staff, two Correctional Facility Operations Specialists, one
Lieutenant, one Captain, one Assistant Director, and one
Director. (Id. at 25.) Defendant Venettozzi could not recall
the approximate number of disciplinary hearing reviews (i.e.,
appeals) that his office handled, but believed it was more than
eight thousand per year. (Id. at 30.)
Defendant Venettozzi had a limited understanding of the ILC
and the nature of its meetings. (Id. at 39-40.) Defendant
Venettozzi also expressed a general unfamiliarity with the
inmate grievance process, and at his deposition could not
recall receiving any formalized training on it. 21 (Id. at
41.) Defendant Venettozzi was also unfamiliar with IGRC
Directive Number 4040 that detailing the prohibition on
officer reprisals against inmates for filing grievances. (Id. at
47.)
21 The Court notes that, as a corrections officer,
Defendant Venettozzi had never served on the
IGRC. (Id. at 42.)
After the disciplinary hearing officer makes his or her
determination, an inmate has the right to appeal that
determination. (Id. at 60.) Defendant Venettozzi's office
is designated by Commissioner Annucci to review all of
the appeals stemming from Tier III disciplinary hearing
determinations. (Id.) Upon Defendant Venettozzi's office
receiving an appeal, it has 60 business days to either
affirm, modify, or reverse the appeal. (Id.) There is no
standard procedure for assigning specific appeals to specific
members of Defendant Venettozzi's team. (Id. at 63-64.)
Once a member of Defendant Venettozzi's team reviews
and comes to an initial decision on an inmate's appeal,
either Defendant Venettozzi or the office's Assistant Director,
Anthony Rodriguez (“Mr. Rodriguez”), must approve it. (Id.
at 66-67.) For some appeals, Defendant Venettozzi approves
the review decision without reviewing the hearing packet that
accompanies the appeal. (Id. at 67.) Furthermore, Defendant
Venettozzi has approved the review decision of appeals
without reviewing the inmate's appeal letter. (Id. 67-68.) In
other words, for efficiency purposes, Defendant Venettozzi
and Mr. Rodriguez do not “do a complete and thorough
stoppage and [conduct a] re-review of everyone's work.” (Id.
at 68.)
According to Defendant Venettozzi, if an inmate claimed as
his or her defense to disciplinary charges that he or she was
retaliated against by a DOCCS employee, and that inmate was
able to establish sufficient evidence of the alleged retaliation,
then the disciplinary hearing officer should dismiss the
charges against that inmate. (Id. at 111.) In previous instances,
but not all of them, when Defendant Venettozzi had approved
a reversal of a hearing officer's determination, he has spoken
with hearing officers to offer them guidance in how to not
make mistakes when issuing their determinations. (Id. at
109-10.)
*18 On October 19, 2015, the Office of Special Housing and
Inmate Discipline received Plaintiff Emerenciano's appeal
of his Tier III disciplinary hearing determination. (Dkt. No.
73, Attach. 13.) As a result of his adjudication of guilty of
the charges set forth within the misbehavior report, Plaintiff
Emerenciano received 270 days in the SHU, as well as a loss
of privileges. (Id. at 6.)
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On April 19, 2016, after a review of Plaintiff Emerenciano's
appeal, the Office of Special Housing and Inmate Discipline
modified his punishment to 180 days in the SHU, effectively
suspending 90 days of the initial punishment of SHU
confinement and loss of privileges. (Dkt. No. 69, Attach. 29.)
On April 16, 2016, Defendant Venettozzi sent an internal
memorandum to the DOCCS Superintendent of Great
Meadow Correctional Facility, Christopher L. Miller, to
inform him that the Office of Special Housing and Inmate
Discipline had modified the determination of the disciplinary
hearing that had found Plaintiff Emerenciano guilty of the
charges contained within his misbehavior report issued by
Defendant Dixon and had initially ordered him to serve 270
days in the SHU. (Dkt. No. 69, Attach. 29.) The memorandum
stated that, “per conversation with the Attorney General's
Office, no substantial evidence to support the charges [against
Plaintiff Emerenciano].” (Id.)
In an email dated April 15, 2016, from Assistant Attorney
General Christopher Fleury (“AAG Fleury”) to Defendant
Venettozzi and Nancy Heywood, and copying Corey Bedard
and Tanya Selvaag, AAG Fleury informed Defendant
Venettozzi of his “real concerns regarding the allegations”
made by Plaintiff Emerenciano and his counsel. (Dkt. No.
73, Attach. 17.) Specifically, AAG Fleury stated that he
did not believe, and a reviewing court would not believe,
that the charges set forth in the misbehavior report had not
been supported by substantial evidence. (Id.) AAG Fleury
stated his conclusion was based on the testimony of five
inmate witnesses who had corroborated the fact that Plaintiff
Emerenciano made no such reference to a 1983 prison riot
during an ILC meeting. (Id.)
A letter entitled “Review of Superintendent's Hearing” was
sent to Plaintiff Emerenciano to notify him that “[o]n
behalf of the Commissioner and in response to ... [his]
appeal, ... [the] Superintendent's hearing of October 8, 2015,
has been reviewed and administratively reversed on April
19, 2016.” (Dkt. No. 69, Attach. 29, at 2.) Defendant
Venettozzi's electronic signature is affixed towards the
bottom portion of this letter. (Id.) Also contained within the
discovery exchanged in this case is a letter titled “Review
of Superintendent's Hearing.” (Id. at 3.) This letter was sent
to Plaintiff Emerenciano to notify him that, “[o]n behalf
of the Commissioner and in response to ... [his] appeal, ...
[the] Superintendent's hearing of October 8, 2015, has been
reviewed and modified on November 30, 2015. (Id.) This
letter was electronically signed by Corey Bedard, who at the
time was serving as the DOCCS Acting Director of Special
Housing and Inmate Discipline. (Id.) According to Defendant
Venettozzi, Plaintiff Emerenciano's Tier III disciplinary
hearing determination was only modified, and not completely
reversed, because his office “did not believe that the appeal
overrode what the hearing officer (i.e., Defendant Bell) put in
[his determination] for evidence.” (Dkt. No. 69, Attach. 12,
at 156 [Venettozzi Tr.].) Defendant Venettozzi was unaware
of which DOCCS employee in his office had conducted the
review of Plaintiff Emerenciano's appeal, and he was unable
to recall details or any correspondence regarding the appeal.
(Id. at 157, 166.)
*19 As discussed above in Part II.B. of this Decision and
Order, “a plaintiff must show ... the defendant's personal
involvement in the alleged constitutional deprivation” to
establish his liability in a suit under § 1983. Grullon, 720
F.3d at 138. Among district courts in the Second Circuit, there
has been a persistent split as to “whether an allegation that
a defendant affirmed a disciplinary proceeding is sufficient
to establish” that defendant's personal involvement in the
underlying constitutional violation. Samuels v. Fischer, 168
F. Supp.3d 625, 643 (S.D.N.Y. 2016); compare Hinton v.
Prack, 12-CV-1844, 2014 WL 4627120, at *17 (N.D.N.Y.
Sept. 11, 2014) (Kahn, J.) (“Courts within the Second
Circuit are split over whether the mere allegation that a
supervisory official affirmed a disciplinary determination
is sufficient to establish personal liability. We subscribe
to the affirmance plus standard, which holds that the
mere rubber-stamping of a disciplinary determination is
insufficient to plausibly allege personal involvement.”) with
Murray v. Arquitt, 10-CV-1440, 2014 WL 4676569, at *12
(N.D.N.Y. Sept. 18, 2014) (“The affirmation of an allegedly
unconstitutional disciplinary hearing appears to establish
personal involvement.”) (Mordue, S.J.).
Relying on the Second Circuit's 2020 decision in Tangreti v.
Bachmann, 983 F.3d 609 (2d Cir. 2020)—“which eliminated
special standards for supervisory liability and required
that alleged constitutional violations be ‘established against
supervisory officials directly,’ 983 F.3d at 618” two district
courts within this circuit have found that “a defendant's
‘fail[ure] to correct another officer's violation” at a prison
disciplinary hearing “does not suffice” to establish that
defendant's personal involvement in the alleged constitutional
violations. Chavez, 2021 WL 4248917, at *14 (citing
Washington v. Fitzpatrick, 20-CV-0911, 2021 WL 966085, at
*10 [S.D.N.Y. Mar. 15, 2021]).
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“ ‘In general, the mere fact that a supervisory official
affirmed the result of a disciplinary hearing will not suffice
to establish that official's personal involvement in an alleged
constitutional violation....’ ” Caimite v. Rodriguez, 17-
CV-0919, 2020 WL 6530780, at *9 (N.D.N.Y. Apr. 9, 2020)
(Hummel, M.J.) (quoting Collins v. Ferguson, 804 F. Supp.2d
134, 140 [W.D.N.Y. 2011]). However, a supervisory official
will be found to have been personally involved if he or
she “proactively participated in reviewing the administrative
appeals as opposed to merely rubber-stamping the results.”
Whitley v. Miller, 57 F. Supp.3d 152, 161 (N.D.N.Y. 2014).
In this case, a letter titled “Review of Superintendent's
Hearing” was sent to Plaintiff Emerenciano. (Dkt. No. 69,
Attach. 29, at 3.) This letter notified Plaintiff Emerenciano
that “[o]n behalf of the Commissioner and in response
to ... [his] letter of appeal ... [the] Superintendent's hearing
of October 8, 2015, has been reviewed and modified on
November 30, 2015. (Id. at 3.) The letter contained an
itemized breakdown of the modified penalties imposed upon
Plaintiff Emerenciano. (Id.) Corey Bedard's signature is
affixed towards the bottom portion of this letter. (Id.)
On April 19, 2016, Defendant Venettozzi sent an internal
memorandum to the DOCCS Superintendent of Great
Meadow Correctional Facility, Christopher L. Miller, to
inform him that the Office of Special Housing and
Inmate Discipline had reversed the determination of
the Superintendent's hearing that had found Plaintiff
Emerenciano guilty of the charges contained within his
misbehavior report issued by Defendant Kowalowski. (Id. at
1.) The memorandum stated that, “per conversation with the
[New York State] Attorney General's Office, no substantial
evidence to support the charges.” (Id.) A second letter
titled “Review of Superintendent's Hearing” was sent to
Plaintiff Emerenciano notifying him that, “[o]n behalf of the
Commissioner ..., [the] Superintendent's hearing of October
8, 2015, has been reviewed and administratively reversed on
April 19, 2016.” (Id. at 2.) Defendant Venettozzi's electronic
signature is affixed towards the bottom portion of this letter.
(Id.)
*20 To the extent that Plaintiff Emerenciano argues that
Defendant Venettozzi's electronic signature affixed on the
letter notifying him of the expunction of the charges
constitutes personal involvement, the Court finds that Whitley
is persuasive. There, a judge of this District held that a
modification of the plaintiff's punishment and a “typewritten
form response” which stated that “there was not sufficient
grounds to reconsider the previous decision on that hearing,”
and “do[es] not constitute sufficient evidence that either
defendant proactively participated in reviewing the merits of
[the plaintiff's] claim or had otherwise ‘actively considered
the issues raised by [plaintiff] in reviewing and responding
to [his] appeal[s]’ to give rise to a question of fact regarding
either individual's personal involvement.” Whitley, 57 F.
Supp.3d at 162. As a result, the Court finds that Defendant
Venettozzi's electronic signature does not constitute his
personal involvement in Plaintiff Emerenciano's alleged due
process deprivation.
For these reasons, the Court grants Defendants’ motion for
summary judgment on Plaintiff Emerenciano's Fourteenth
Amendment due process claim against Defendant Venettozzi.
C. Whether Defendants Are Entitled to Summary
Judgment on Plaintiffs’ Supervisory Liability Claims
Against Defendant Venettozzi
1. Plaintiff DeJesus’ Supervisory Liability
Claim Against Defendant Venettozzi
Defendant Venettozzi argues that the Court must grant
summary judgment in his favor as to Plaintiff DeJesus’
supervisory liability claim against him, because DeJesus has
failed to establish any grounds on which he could be held
liable as a supervisor with regard to DeJesus’ surviving
retaliation claim against Defendant Dixon. (Dkt. No. 69,
Attach. 2, at 17-20 [Defs.’ Mem. of Law].)
Plaintiffs respond that, given the totality of the circumstances,
Defendant Venettozzi should not be rewarded with
diminished liability because he ignored the unconstitutional
violations occurring at Clinton after having received notice
of them. (Dkt. No. 73, at 32-38 [Pls.’ Opp'n Mem. of
Law].) More specifically, Plaintiff DeJesus argues that
Defendant Venettozzi violated his First Amendment rights
because he failed to prevent the Defendant Dixon's retaliation
and acted with deliberate indifference by not remedying
the alleged constitutional violations in a timely manner.
(Id.) Furthermore, Plaintiff DeJesus argues that Defendant
Venettozzi was deliberately indifferent to the retaliation
that he suffered, because “his actions ... directly enabled,
condoned, and ratified the unlawful retaliation being carried
out against ... Plaintiff DeJesus, such that it too can be
said [that] Defendant Venettozzi ... engaged in unlawful
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retaliation.” (Id.) Therefore, argues Defendant DeJesus, a
“jury can reasonably and readily conclude [that] Defendant
Venettozzi was not only directly involved in the retaliation
by virtue of his direct role in relation to their disciplinary
appeals and by virtue of having not only created and/
or tolerated a custom or policy through which retaliation
against ILC members ..., but that he was aware that the
charges against these individuals were discriminatory by
being directly and expressly based upon protected conduct
and protected speech.” (Id. at 37.)
“It is well-established that a law enforcement official has
an affirmative duty to intervene on behalf of an individual
whose constitutional rights are being violated in his presence
by other officers.” Cicio v. Lamora, 08-CV-0431, 2010
WL 1063875, at *8 (N.D.N.Y. Feb. 24, 2010) (Peebles,
M.J.). To prove a claim of failure-to-intervene, the plaintiff
must establish that the officer-defendant had “(1) 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) that officer does not take reasonable steps to intervene.”
Henry v. Dinelle, 10-CV-0456, 2011 WL 5975027, at *4
(N.D.N.Y. Nov. 29, 2011) (Suddaby, J.) (citing Jean-Laurent
v. Wilkinson, 540 F. Supp.2d 501, 512 [S.D.N.Y. 2008]).
*21 On March 8, 2016, counsel for Plaintiff DeJesus
submitted a preliminary appeal from his Tier III disciplinary
hearing determination to Defendant Venettozzi's office. (Id.
at 117.) Defendant Venettozzi's office received Plaintiff
DeJesus’ appeal on March 17, 2016. (Id.) On June 3, 2016,
Defendant Venettozzi's office reversed the Superintendent's
determination as to Plaintiff DeJesus’ Tier III disciplinary
hearing because the issued misbehavior report did not
support the charges filed against Plaintiff DeJesus. (Id. at
107-08, 121-23.) As a result of the decision to reverse the
Superintendent's determination, the two charges that had been
brought against Plaintiff DeJesus were dropped. (Dkt. No. 69,
Attach. 23, at 1.) Defendant Venettozzi acknowledged that
every appeal reviewed by his office is evaluated on a case-
by-case basis, and reviews, more likely than not, go much
further in depth than merely reading the misbehavior report
that was issued to the inmate. (Dkt. No. 69, Attach. 12, at
119-21 [Venettozzi Tr.].)
Put simply, the evidence does not support Plaintiff
DeJesus’ argument regarding Defendant Venettozzi's failure
to intervene in the alleged retaliation against DeJesus
by Defendant Dixon. Instead, Plaintiff DeJesus’ argument
assumes that, because of his title as the Director of the
Office of Special Housing and Inmate Discipline, Defendant
Venettozzi knew, or reasonably should have known, about
Defendant Dixon's alleged retaliation against Plaintiff
DeJesus. Additionally, Plaintiff DeJesus does not provide
evidence showing how Defendant Venettozzi “intentionally
built and maintained a system ... [that] tolerates a wrongful
custom and policy” of deliberate indifference towards
unconstitutional retaliatory conduct. (Id.)
With regard to Plaintiffs’ apparent argument that the length
of time it took for Defendant Venettozzi's office to review
Plaintiff DeJesus’ appeal was insufficient, Plaintiffs point to
the fact that, before the reversal of the disciplinary hearing
officer's determination, counsel for Plaintiff DeJesus and
Plaintiff DeJesus himself contacted Defendant Venettozzi
to alert him to the pending appeal, and yet, the appeal
was decided more than sixty days after it was received by
Defendant Venettozzi's office. (Dkt. No. 73, at 34 [Pls.’ Opp'n
Mem. of Law].) Of course, “[r]eceiving letters of complaint
from an inmate and failing to respond is generally insufficient
to establish personal involvement.” Johnson v. McKay, 14-
CV-0803, 2015 WL 1735102, at *9 (N.D.N.Y. Apr. 16, 2015)
(report-recommendation by Dancks, M.J., adopted by Sannes,
J.); Smart v. Goord, 441 F. Supp.2d 631, 643 (S.D.N.Y. 2006)
(noting that the defendant “cannot be held liable on the sole
basis that he did not act in response to letter of protest by
[plaintiff]”); accord, Chaney v. Vena, 15-CV-0653, 2017 WL
6756645, at *7-8 (N.D.N.Y. Nov. 29, 2017) (Baxter, M.J.),
adopted by 2017 WL 6734186 (N.D.N.Y. Dec. 29, 2017)
(McAvoy, J.). Plaintiffs do not specify the manner in which
they “contacted” Defendant Venettozzi, nor the extent of any
communication that they might have had. To the extent that
Plaintiff DeJesus argues that Defendant Venettozzi did not
follow DOCCS policies regarding the sixty-day deadline to
decide an appeal, a failure to adhere to an internal policy or
state law does not constitute a violation of § 1983. H'Shaka
v. Gorman, 444 F. Supp.3d at 355, 384-85 (N.D.N.Y. 2020)
(Suddaby, C.J.).
In any event, a violation of the 60-day deadline for a decision
on such an appeal does not violate Plaintiff DeJesus’ due
process rights, because the Fourteenth Amendment does not
require any administrative review of disciplinary convictions.
See Austin v. Fischer, 09-CV-4812, 2010 WL 3187642,
at *2 (S.D.N.Y. Aug. 11, 2020) (“Plaintiff alleges that
the Commissioner issued a decision sixty eight days after
Plaintiff's submission of his administrative appeal, exceeding
the sixty-day limit set forth in ... § 254.8 .... However, this
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eight day delay does not violate Plaintiff's due process rights,
because the Fourteenth Amendment does not require any
administrative review of disciplinary convictions.”) (internal
quotation marks omitted), aff'd, 453 F. App'x 80 (2d Cir.
2011).
*22 Finally, although there may be a genuine dispute of
fact as to the degree of personal involvement that Defendant
Venettozzi had in reviewing Plaintiff DeJesus’ appeal, any
such genuine dispute of fact is not a material one. This dispute
of fact lacks materiality because, even if Defendant Dixon had
committed a constitutional violation by issuing a misbehavior
report to Plaintiff DeJesus, Defendant Venettozzi's office
reversed the Tier III disciplinary decision; it did not affirm or
partially modify the hearing officer's determination. In other
words, Defendant Venettozzi's office did indeed intervene to
correct the repercussions stemming from Defendant Dixon's
alleged unlawful retaliation.
For these reasons, the Court grants Defendants’ motion for
summary judgment on Plaintiff DeJesus’ supervisory liability
claim against Defendant Venettozzi.
2. Plaintiff Emerenciano's Supervisory
Liability Claim Against Defendant Venettozzi
Because Plaintiff Emerenciano has decided to abandon his
due process claim against Defendant Bell, and pursue his due
process claim against only Defendant Venettozzi, the Court
need only focus on Venettozzi's actions while supervising
Defendant Kowalowski in connection with Emerenciano's
disciplinary hearing.
For his supervisory liability claim to survive the pending
motion, Plaintiff Emerenciano must provide admissible
evidence from which a rational jury could render the
following three findings of fact: (1) that Defendant Venettozzi
had a realistic opportunity to intervene and prevent Defendant
Kowalowski from allegedly retaliating against Plaintiff
Emerenciano; (2) that a reasonable person in Defendant
Venettozzi's position would have known that Emerenciano's
First Amendment rights were being violated; and (3) that
Defendant Venettozzi did not take reasonable steps to
intervene to prevent further alleged retaliation by Defendant
Kowalowski. Henry, 2011 WL 5975027, at *4.
It is undisputed that, on November 30, 2015, Defendant
Venettozzi's office modified the punishment that had initially
been imposed upon Plaintiff Emerenciano after a finding of
guilt at his Tier III disciplinary hearing. (Dkt. No. 69, Attach.
29, at 3-4.) It is also undisputed that, on April 16, 2016,
Defendant Venettozzi's office ultimately reversed the finding
of guilt. (Id. at 1-2.) As indicated above in Part III.C.1. of this
Decision and Order, this reversal of a finding of guilt actually
shows that Defendant Venettozzi did indeed intervene in
Defendant Kowalowski's alleged unlawful retaliation. As a
result, Plaintiff's theory of liability involves an argument
that Defendant Venettozzi should have done so sooner:
more specifically, that, when Venettozzi's office modified
Plaintiff Emerenciano's punishment on November 30, 2015,
Venettozzi should have reversed the finding of guilt.
The problem with this argument is that Defendant Venettozzi
has no recollection of personally participating in that
modification. (Dkt. No. 69, Attach. 12, at 138-67 [Venettozzi
Tr.].) Furthermore, Plaintiff Emerenciano has no personal
knowledge of such participation. Instead, he relies on
Defendant Venettozzi's title as the head of the office
that modified Plaintiff Emerenciano's punishment as the
grounds for his supervisory liability, which is precisely
the sort of respondeat superior theory of liability that
has long been prohibited under the law. Finally, the
record contains uncontroverted evidence that, the same day
that Defendant Venettozzi learned of the concerns of an
Assistant Attorney General regarding Plaintiff Emerenciano's
disciplinary conviction, Venettozzi passed those concerns
along to a subordinate; and the very next day Venettozzi's
office reversed the finding of guilt. (See, e.g., Dkt. No. 73,
Attach. 17 [attaching email message dated April 15, 2016].)
Simply stated, based on the current record, no reasonable
jury could find Defendant Venettozzi liable for Defendant
Kowalowski's alleged unlawful retaliation.
*23 For these reasons, the Court grants Defendants’
motion for summary judgment on Plaintiff Emerenciano's
supervisory liability claim against Defendant Venettozzi.
ACCORDINGLY, it is
ORDERED that Defendants’ motion for summary judgment
(Dkt. No. 69) is GRANTED in part and DENIED in part as
described above in this Decision and Order; and it is further
ORDERED that the Clerk of Court shall enter Judgment for
Defendants on the following claims, which are DISMISSED:
(a) Plaintiff Emerenciano's retaliation claim under the First
Amendment against Defendant Bell;
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(b) Plaintiff Scott's retaliation claim under the First
Amendment against Defendant Houck;
(c) Plaintiff Emerenciano's due process claim under the
Fourteenth Amendment against Defendant Bell;
(d) Plaintiff Emerenciano's due process claim under the
Fourteenth Amendment against Defendant Venettozzi;
(e) Plaintiff DeJesus’ supervisory liability claim against
Defendant Venettozzi; and
(f) Plaintiff Emerenciano's supervisory liability claim
against Defendant Venettozzi; and it is further
ORDERED that the following claims SURVIVE this motion
for summary judgment:
(a) Plaintiff DeJesus’ retaliation claim under the First
Amendment against Defendant Dixon;
(b) Plaintiff DeJesus’ retaliation claim under the First
Amendment against Defendant Rock; and
(c) Plaintiff Emerenciano's retaliation claim under the First
Amendment against Defendant Kowalowski; and it is
further
ORDERED that the Clerk of Court shall TERMINATE the
following individuals as Defendants in this action: Earl Bell,
Richard Houck, and Donald Venettozzi.
All Citations
Not Reported in Fed. Supp., 2022 WL 991402
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Keyes v. Venettozzi
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 9:18-CV-00372
Keyes et al v. Annucci et al
— N.D.N.Y. Mar. 27, 2018 Docket
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Keyes v. Venettozzi
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History (2)
Direct History (1)
1. Keyes v. Venettozzi
2022 WL 991402 , N.D.N.Y. , Mar. 31, 2022
Related References (1)
2. Keyes v. Annucci
2019 WL 4602240 , N.D.N.Y. , Sep. 23, 2019
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McNamee v. Schoharie County Jail, Not Reported in F.Supp.2d (2008)
2008 WL 686796
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2008 WL 686796
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Ryan S. McNAMEE, Plaintiff,
v.
SCHOHARIE COUNTY JAIL, Lt. James Hazzard, CPL
J. Cronk, Deputy Paul Marsh, Jr., Deputy N. Alexander,
Deputy Howland, Deputy Hirst, Schoharie County
Medical Dept., Dr. Weitz, Dr. Belinger, Defendants.
No. 9:06-CV-1364 (LEK/GHL).
|
March 10, 2008.
Attorneys and Law Firms
Ryan S. McNamee, Wappingers Falls, NY, Plaintiff, pro se.
O'Connor, O'Connor, Bresee & First, P.C., Justin O. Corcoran,
Esq ., of Counsel, Albany, NY, for Defendants Weitz and
Belanger.
DECISION AND ORDER
LAWRENCE E. KAHN, District Judge.
*1 This matter comes before the Court following a
Report-Recommendation filed on February 13, 2008, by the
Honorable George H. Lowe, United States Magistrate Judge,
pursuant to 28 U.S.C. § 636(b) and L.R. 72.3(c) of the
Northern District of New York. Report-Rec. (Dkt. No. 32).
Within ten days, excluding weekends and holidays, after a
party has been served with a copy of a Magistrate Judge's
Report-Recommendation, the party “may serve and file
specific, written objections to the proposed findings and
recommendations,” FED. R. CIV. P. 72(b), in compliance
with L.R. 72.1. No objections have been raised in the allotted
time with respect to Judge Lowe's Report-Recommendation.
Furthermore, after examining the record, the Court has
determined that the Report-Recommendation is not subject to
attack for plain error or manifest injustice.
Accordingly, it is hereby
ORDERED, that the Report-Recommendation (Dkt. No. 32)
is APPROVED and ADOPTED in its ENTIRETY; and it
is further
ORDERED, that Defendants Weitz and Belanger's Motion
to dismiss (Dkt. No. 16) is GRANTED and Plaintiff's claims
against them are DISMISSED with prejudice; and it is
further
ORDERED, that Plaintiff's remaining claims are sua sponte
DISMISSED with prejudice for failure to diligently litigate;
and it is further
ORDERED, that Case no. 9:06-CV-1364 be closed; and it is
further
ORDERED, that the Clerk serve a copy of this Order on all
parties.
IT IS SO ORDERED.
REPORT-RECOMMENDATION
GEORGE H. LOWE, United States Magistrate Judge.
This pro se prisoner civil rights action, brought pursuant
to 42 U.S.C. § 1983, has been referred to me for Report
and Recommendation by the Honorable Lawrence E. Kahn,
Senior United States District Judge, pursuant to 28 U.S.C. §
636(b) and Local Rule 72.3(c) of the Local Rules of Practice
for this Court. Generally, the Amended Complaint of Ryan
S. McNamee (“Plaintiff”) asserts claims under the First and
Eighth Amendments against the Schoharie County
Jail, the County Medical Department, and nine employees
of the Jail arising from Plaintiff's incarceration at the Jail
between September of 2005 and November of 2006. (See
generally Dkt. No. 5 [Plf.'s Am. Compl.].) Among these
claims is a claim that, in September and October of 2006,
Defendants Zeev Weitz (a physician) and David Belanger
(a nurse) 1 violated Plaintiff's Eighth Amendment right to
adequate medical care by “abruptly” taking him off the
prescription drug Lexapro with “no valid explanation” and
merely “to save money,” and by failing to cause him to be
placed back on that drug. (Id. at 11-13.)
1 While Plaintiff's Amended Complaint and the
caption of this case refer to “Dr. Belinger,” I
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note that defense counsel has stated that the
correct spelling of this individual's name is
“Belanger.” (See Dkt. No. 16, Part 3, at 1 [Defs.'
Mem. of Law].) Defense counsel has stated also
that Defendant Belanger is a Nurse Practitioner, not
a doctor, as Plaintiff alleges. (Id.)
Currently pending before the Court is a motion by Defendants
Weitz and Belanger to dismiss Plaintiff's Eighth Amendment
inadequate-medical-care claim against them for failure to
state a claim pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. No. 16.)
Despite having been specifically advised of the consequences
of failing to respond to Defendants Weitz and Belanger's
motion, and having been sua sponte granted an extension of
the deadline by which he had to so response, Plaintiff has
failed to so respond. (Dkt. No. 30.)
*2 For the reasons stated below, I recommend that
Defendants Weitz and Belanger's motion to dismiss Plaintiff's
claim against them be granted. I also recommend that
Plaintiff's deliberate-indifference claim against Defendant
“Jane Doe # 1” be sua sponte dismissed with prejudice
due to Plaintiff's failure to name or serve her and/or for
his failure to state a claim against her upon which relief
might be granted. I also recommend that Plaintiff's claims
against Defendant Schoharie County Medical Department
be sua sponte dismissed with prejudice due to Plaintiff's
failure to serve that entity and/or his failure to diligently
litigate his claims against that entity. Finally, I recommend
that Plaintiff's claims against the remaining Defendants
(i.e., Defendants Hazzard, Cronk, Marsh, Hirst, Alexander,
Grippin, and Schoharie County Jail) be sua sponte dismissed
with prejudice due to Plaintiff's failure to diligently litigate
his claims against them, unless Plaintiff shows cause for
this failure within ten (10) days of the date of this Report-
Recommendation.
I. RECENTLY CLARIFIED LEGAL STANDARD
GOVERNING MOTIONS TO DISMISS FOR
FAILURE TO STATE A CLAIM
Under Fed.R.Civ.P. 12(b)(6), a defendant may move to
dismiss a complaint for “failure to state a claim upon which
relief can be granted.” Fed.R.Civ.P. 12(b)(6). It has long been
understood that a defendant may base such a motion on either
or both of two grounds: (1) a challenge to the “sufficiency of
the pleading” under Fed.R.Civ.P. 8(a)(2); 2 or (2) a challenge
to the legal cognizability of the claim. 3
2 See 5C Wright & Miller, Federal Practice and
Procedure § 1363 at 112 (3d ed. 2004) (“A
motion to dismiss for failure to state a claim for
relief under Rule 12(b)(6) goes to the sufficiency
of the pleading under Rule 8(a)(2).”) (citations
omitted); Princeton Indus., Inc. v. Rem, 39 B.R.
140, 143 (Bankr.S.D.N.Y.1984) (“The motion
under F.R.Civ.P. 12(b)(6) tests the formal legal
sufficiency of the complaint as to whether the
plaintiff has conformed to F.R.Civ.P. 8(a)(2) which
calls for a ‘short and plain statement’ that the
pleader is entitled to relief.”); Bush v. Masiello,
55 F.R.D. 72, 74 (S.D.N.Y.1972) (“This motion
under Fed.R.Civ.P. 12(b)(6) tests the formal legal
sufficiency of the complaint, determining whether
the complaint has conformed to Fed.R.Civ.P. 8(a)
(2) which calls for a ‘short and plain statement that
the pleader is entitled to relief.’ ”).
3 See Swierkiewicz v. Sorema N.A., 534 U.S. 506,
514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (“These
allegations give respondent fair notice of what
petitioner's claims are and the grounds upon which
they rest.... In addition, they state claims upon
which relief could be granted under Title VII and
the ADEA.”); Wynder v. McMahon, 360 F.3d 73,
80 (2d Cir.2004) ( “There is a critical distinction
between the notice requirements of Rule 8(a)
and the requirement, under Rule 12(b)(6), that a
plaintiff state a claim upon which relief can be
granted.”); Phelps v. Kapnolas, 308 F.3d 180, 187
(2d Cir.2002) (“Of course, none of this is to say that
a court should hesitate to dismiss a complaint when
the plaintiff's allegation ... fails as a matter of law.”)
(citation omitted); Kittay v. Kornstein, 230 F.3d
531, 541 (2d Cir.2000) (distinguishing between
a failure to meet Rule 12[b][6]'s requirement
of stating a cognizable claim and Rule 8 [a]'s
requirement of disclosing sufficient information to
put defendant on fair notice); In re Methyl Tertiary
Butyl Ether Prods. Liab. Litig., 379 F.Supp.2d 348,
370 (S.D.N.Y.2005) (“Although Rule 8 does not
require plaintiffs to plead a theory of causation, it
does not protect a legally insufficient claim [under
Rule 12(b)(6) ].”) (citation omitted); Util. Metal
Research & Generac Power Sys., 02-CV-6205,
2004 U.S. Dist. LEXIS 23314, at *4-5, 2004 WL
2613993 (E.D.N.Y. Nov. 18, 2004) (distinguishing
between the legal sufficiency of the cause of
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action under Rule 12[b][6] and the sufficiency
of the complaint under Rule 8[a] ); accord,
Straker v. Metro Trans. Auth., 331 F.Supp.2d 91,
101-02 (E.D.N.Y.2004); Tangorre v. Mako's, Inc.,
01-CV-4430, 2002 U.S. Dist. LEXIS 1658, at
*6-7, 2002 WL 313156 (S.D.N.Y. Jan. 30, 2002)
(identifying two sorts of arguments made on a Rule
12[b][6] motion-one aimed at the sufficiency of the
pleadings under Rule 8[a], and the other aimed at
the legal sufficiency of the claims).
Rule 8(a)(2) requires that a pleading include “a short and plain
statement of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Such a statement must “give the
defendant fair notice of what the plaintiff's claim is and the
grounds upon which it rests.” 4 The purpose of this rule is to
“facilitate a proper decision on the merits.” 5 A complaint that
fails to comply with this rule “presents far too a heavy burden
in terms of defendants' duty to shape a comprehensive defense
and provides no meaningful basis for the Court to assess the
sufficiency of [plaintiff's] claims.” 6
4 Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S.
336, 125 S.Ct. 1627, 1634, 161 L.Ed.2d 577 (2005)
(holding that the complaint failed to meet this
test) (quoting Conley, 355 U.S. at 47); see also
Swierkiewicz, 534 U.S. at 512 (quoting Conley,
355 U.S. at 47); Leathernman v. Tarrant County
Narcotics Intelligence and Coordination Unit, 507
U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517
(1993) (quoting Conley, 355 U.S. at 47).
5 See Swierkiewicz, 534 U.S. at 514 (quoting Conley,
355 U.S. at 48).
6 Gonzales v. Wing, 167 F.R.D. 352, 355
(N.D.N.Y.1996) (McAvoy, J.), aff'd, 113 F.3d
1229 (2d Cir.1997) (unpublished table opinion).
Consistent with the Second Circuit's application of
§ 0.23 of the Rules of the U.S. Court of Appeals
for the Second Circuit, I cite this unpublished table
opinion, not as precedential authority, but merely
to show the case's subsequent history. See, e.g.,
Photopaint Technol., LLC v. Smartlens Corp., 335
F.3d 152, 156 (2d Cir.2003) (citing, for similar
purpose, unpublished table opinion of Gronager v.
Gilmore Sec. & Co., 104 F.3d 355 [2d Cir.1996] ).
The Supreme Court has long characterized this pleading
requirement under Fed.R.Civ.P. 8(a)(2) as “simplified” and
“liberal,” and has repeatedly rejected judicially established
pleading requirements that exceed this liberal requirement. 7
However, it is well established that even this liberal notice
pleading standard “has its limits.” 8 As a result, several
Supreme Court decisions, and Second Circuit decisions, exist
holding that a pleading has failed to meet this liberal notice
pleading standard. 9
7 See, e.g., Swierkiewicz, 534 U.S. at 513-14 (noting
that “Rule 8(a)(2)'s simplified pleading standard
applies to all civil actions, with limited exceptions
[including] averments of fraud or mistake.”).
8 2 Moore's Federal Practice § 12.34[1][b] at 12-61
(3d ed.2003).
9 See, e.g., Bell Atlantic Corp. v. Twombly, ---
U.S. ----, ---- - ----, 127 S.Ct. 1955, 1964-74,
167 L.Ed.2d 929 (2007) (pleading did not meet
Fed.R.Civ.P. 8[a][2]'s liberal requirement), accord,
Dura Pharmaceuticals, 125 S.Ct. at 1634-1635,
Christopher v. Harbury, 536 U.S. 403, 416-22,
122 S.Ct. 2179, 153 L.Ed.2d 413 (2002), Freedom
Holdings, Inc. v. Spitzer, 357 F.3d 205, 234-35
(2d Cir.2004), Gmurzynska v. Hutton, 355 F.3d
206, 208-209 (2d Cir.2004). Several unpublished
decisions exist from the Second Circuit affirming
the Rule 8(a)(2) dismissal of a complaint after
Swierkiewicz. See, e.g., Salvador v. Adirondack
Park Agency of the State of N.Y., No. 01-7539, 2002
WL 741835, at *5 (2d Cir. Apr.26, 2002) (affirming
pre-Swierkiewicz decision from Northern District
of New York interpreting Fed.R.Civ.P. 8[a][2]
). Although these decisions are not themselves
precedential authority, see Rules of the U.S. Court
of Appeals for the Second Circuit, § 0.23, they
appear to acknowledge the continued precedential
effect, after Swierkiewicz, of certain cases from
within the Second Circuit interpreting Fed.R.Civ.P.
8(a)(2). See Khan v. Ashcroft, 352 F.3d 521, 525
(2d Cir.2003) (relying on summary affirmances
because “they clearly acknowledge the continued
precedential effect” of Domond v. INS, 244 F.3d
81 [2d Cir.2001], after that case was “implicitly
overruled by the Supreme Court” in INS v. St. Cyr,
533 U.S. 289 [2001] ).
Most notably, in the recent decision of Bell Atlantic
Corporation v. Twombly, the Supreme Court, in reversing
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an appellate decision holding that a complaint had stated
a claim upon which relief could be granted, “retire[d]” the
famous statement by the Court in Conley v. Gibson, 355
U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that “a
complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief.” --- U.S. ----, ---- - ----, 127 S.Ct. 1955,
1968-69, 167 L.Ed.2d 929 (2007). 10 Rather than turning on
the conceivability of an actionable claim, the Court clarified,
the Fed.R.Civ.P. 8 standard turns on the “plausibility” of
an actionable claim. Id. at 1965-74. More specifically, the
Court held that, for a plaintiff's complaint to state a claim,
his “[f]actual allegations must be enough to raise a right
to relief above the speculative level [to a plausible level]”
assuming, of course, that all the allegations in the complaint
are true. Id. at 1965 [citations omitted]. What this means,
on a practical level, is that there must be “plausible grounds
to infer [actionable conduct],” or, in other words, “enough
fact to raise a reasonable expectation that discovery will
reveal evidence of [actionable conduct].” Id.; accord, Iqbal
v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007) (“[W]e believe
the [Supreme] Court [in Bell Atlantic Corp. v. Twombly] is ...
requiring a flexible ‘plausibility standard,’ which obliges a
pleader to amplify a claim with some factual allegations in
those contexts where such amplification is needed to render
the claim plausible.” ) [emphasis in original].
10 The Court in Twombly further explained: “The
phrase is best forgotten as an incomplete, negative
gloss on an accepted pleading standard: once
a claim has been adequately stated, it may be
supported by showing any set of facts consistent
with the allegations in the complaint.... Conley,
then, described the breadth of opportunity to
prove what an adequate complaint claims, not the
minimum standard of adequate pleading to govern
a complaint's survival.” Twombly, 127 S.Ct. at
1969.
*3 Having said that, it should be emphasized that, “[i]n
reviewing a complaint for dismissal under Fed.R.Civ.P. 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.” 11 “This standard is applied with even
greater force where the plaintiff alleges civil rights violations
or where the complaint is submitted pro se.” 12 In other
words, while all pleadings are to be construed liberally, pro se
civil rights pleadings are to be construed with an extra degree
of liberality. Indeed, “courts must construe pro se pleadings
broadly, and interpret them to raise the strongest arguments
that they suggest.” 13
11 Hernandez v. Coughlin, 18 F.3d 133, 136 (2d
Cir.1994) (affirming grant of motion to dismiss)
(citation omitted); Sheppard v. Beerman, 18 F.3d
147, 150 (2d Cir.1994).
12 Hernandez, 18 F.3d at 136 (citation omitted); see
also Deravin v. Kerik, 335 F.3d 195, 200 (2d
Cir.2003) (citations omitted); Vital v. Interfaith
Med. Ctr., 168 F.3d 615, 619 (2d Cir.1999) (citation
omitted).
13 Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir.2000)
(finding that plaintiff's conclusory allegations of a
due process violation were insufficient) (internal
quotation and citation omitted).
Moreover, when addressing a pro se complaint, generally 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.” 14
Of course, granting a pro se plaintiff an opportunity to amend
is not required where the plaintiff has already been given a
chance to amend his pleading. 15 Finally, “all normal rules of
pleading are not absolutely suspended.” 16 For example, an
opportunity to amend should be denied where “the problem
with [plaintiff's] causes of action is substantive” such that
“[b]etter pleading will not cure it.” 17
14 Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000)
(internal quotation and citation omitted); see also
Fed.R.Civ.P. 15(a) (leave to amend “shall be
freely given when justice so requires”). Of course,
granting a pro se plaintiff an opportunity to amend
is not required where the plaintiff has already been
given a chance to amend his pleading.
15 Muniz v. Goord, 04-CV-0479, 2007 WL 2027912,
at *2, n. 14 (N.D.Y.Y. July 11, 2007) (McAvoy, J.,
adopting report-recommendation of Lowe, M.J.);
Richards v. Goord, 04-CV1433, 2007 WL 201109,
at *5, n. 34 (N.D.N.Y. Jan.23, 2007) (Kahn,
J., adopting report-recommendation of Lowe,
M.J.); Ariola v. Onondaga County Sheriff's Dept.,
04-CV-1262, 2007 WL 119453, at *2, n. 13
(N.D.N.Y. Jan.10, 2007) (Hurd, J., adopting report-
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recommendation of Lowe, M .J.); Collins v. Fed.
Bur. of Prisons, 05-CV-0904, 2007 WL 37404,
at *4, n. 30 (N.D.N.Y. Jan.4, 2007) (Kahn, J.,
adopting report-recommendation of Lowe, M.J.);
Goros v. Cent. Office Review Comm., 03-CV-0407,
2006 WL 2794415, at *5, n. 18 (N.D.N.Y. Sept., 26,
2006) (Sharpe, J., adopting report-recommendation
of Lowe, M.J.); Williams v. Weaver, 03-CV0912,
2006 WL 2799417, at *4, n. 16 (N.D.N.Y. Sept. 26,
2006) (Kahn, J., adopting report-recommendation
of Lowe, M.J.).
16 Stinson v. Sheriff's Dep't of Sullivan Cty., 499
F.Supp. 259, 262 & n. 9 (S.D.N.Y.1980) (citations
omitted), accord, Gil v. Vogilano, 131 F.Supp.2d
486, 491 (S.D.N.Y.2001).
17 Cuoco, 222 F.3d at 112 (finding that repleading
would be futile) (citation omitted); see also Cortec
Indus., Inc. v. Sum Holding L.P., 949 F.2d 42,
48 (2d Cir.1991) (“Of course, where a plaintiff
is unable to allege any fact sufficient to support
its claim, a complaint should be dismissed with
prejudice.”) (affirming, in part, dismissal of claim
with prejudice) (citation omitted).
II. BACKGROUND
A. Summary of Claims Asserted in Plaintiff's
Amended Complaint
Liberally construed, Plaintiff's Amended Complaint sets forth
the following claims:
(1) Between September of 2005 and November of 2006,
Defendants Hazzard, Cronk, Marsh, Hirst, Alexander, and
Grippin (and the Jail and the County Medical Department)
violated Plaintiff's First Amendment rights by denying him
access to the courts and interfering with his ability to practice
his Catholic religion, and violated his Eighth Amendment
rights by failing to protect him from an assault by a violent
inmate, which occurred on November 7, 2005;
(2) During the days following November 7, 2005, Defendant
“Jane Doe # 1,” who was a physician at the Schoharie
County Jail, violated Plaintiff's Eighth Amendment rights
by “misdiagnos[ing] [Plaintiff's injury] and prescrib[ing] the
wrong medication to [Plaintiff] for headaches that were
occurring” as a result of a head injury he suffered during the
referenced assault;
(3) On or about September 25, 2006, “with no valid
explanation” but merely “to save money for the Schoharie
County Jail,” Defendant Weitz “abruptly” took Plaintiff off
the prescription drug Lexapro (which he had been taking
regularly since September 2005 for “anxiety, depression and
uncontrollable rage attacks”), causing Plaintiff to suffer “loss
of sleep, disorientation, and illusions [sic].”; and
(4) During the early weeks of October 2006, after three
requests to see medical staff about the discontinuation of his
Lexapro medication, Plaintiff was finally seen by Defendant
Belanger, who failed to discover why Plaintiff had been taken
off Lexapro, failed to cause Plaintiff to be placed back on
Lexapro, and callously stated that Plaintiff should not be
experiencing the side effects he was claiming (although a year
before Defendant Belanger had told Plaintiff that an “abrupt”
discontinuation of the drug would be “dangerous”). (Dkt. No.
5 [Plf.'s Am. Compl.].)
B. Defendants' Legal Arguments in Favor of Dismissal
*4 In their memorandum of law, Defendants Weitz and
Belanger argue that Plaintiff's inadequate-medical-care claim
against them should be dismissed for two reasons: (1) Plaintiff
has failed to allege facts plausibly suggesting either that
he suffered from a serious medical need for purposes of
the Eighth Amendment during the time in question, or
that Defendants Weitz and/or Belanger was deliberately
indifferent to such a need; and (2) Plaintiff has failed to allege
facts plausibly demonstrating that, before filing this action
in federal court, he exhausted his administrative remedies
with regard to his inadequate-medical-care claim against
Defendants Weitz and Belanger. (Dkt. No. 16, Part 4, at 5-11
[Defs.' Mem. of Law].)
III. ANALYSIS
A. First Basis for Dismissal: Facial Merit of
Defendants Weitz and Belanger's Unopposed Motion
to Dismiss
Defendants Weitz and Belanger filed their motion to dismiss
on May 15, 2007. (Dkt. No. 16.) In light of Plaintiff's special
status as a pro se civil rights litigant, on August 14, 2007,
the Court advised Plaintiff that, while he was not required
to respond, Defendants Weitz and Belanger's motion could
be granted if the Court determined that they had met their
requisite burden, thereby resulting in their dismissal from
Plaintiff's action. (Dkt. No. 30.) The Court also sua sponte
granted Plaintiff an extension of time in which to respond to
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their motion, until September 13, 2007. (Id.) Still, Plaintiff
did not respond to the motion.
“Where a properly filed motion is unopposed and the Court
determines that the moving party has met its burden to
demonstrate entitlement to the relief requested therein, the
nonmoving party's failure to file or serve any papers as
required by this Rule shall be deemed as consent to the
granting or denial of the motion, as the case may be, unless
good cause be shown.” N.D.N.Y. L.R. 7.1(b)(3).
Here, Defendants Weitz and Belanger's motion to dismiss
has been properly filed, Plaintiff has failed to oppose it
(despite being warned of the possible consequences of that
failure), and Plaintiff has failed to show good cause as to
why his failure to oppose the motion should not be deemed
as “consent” to the granting of the motion. Therefore, the
sole issue remaining before the Court is whether Defendants
have met their “burden to demonstrate entitlement to the relief
requested” in their motion. N.D.N.Y. L.R. 7.1(b)(3).
As a practical matter, an inquiry into whether a movant
has met its “burden to demonstrate entitlement” to dismissal
under Local Rule 7.1(b)(3) is a more limited endeavor than
a review of a contested motion to dismiss. 18 Specifically,
on an uncontested motion to dismiss, the movant's burden
of persuasion is lightened such that, in order to succeed, his
motion need only be “facially meritorious.” 19 A movant's
burden in making legal arguments that are facially meritorious
has appropriately been characterized as “modest.” 20
18 See, e.g., Hernandez v. Nash, 00-CV-1564, 2003
U.S. Dist. LEXIS 16258, at *7-8, 2003 WL
22143709 (N.D.N.Y. Sept. 10, 2003) (Sharpe,
M.J.) (before an unopposed motion to dismiss
may be granted under Local Rule 7.1[b][3],
“the court must review the motion to determine
whether it is facially meritorious” ) [emphasis
added; citations omitted]; Race Safe Sys. v. Indy
Racing League, 251 F.Supp.2d 1106, 1109-10
(N.D.N.Y.2003) (Munson, J.) (reviewing whether
record contradicted defendant's arguments, and
whether record supported plaintiff's claims, in
deciding unopposed motion to dismiss, under Local
Rule 7.1[b][3] ); see also Wilmer v. Torian, 96-
CV-1269, 1997 WL 640982, 1997 U.S. Dist.
LEXIS 16345, at *2 (N.D.N.Y. Aug. 29, 1997)
(Hurd, M .J.) (applying prior version of Rule
7.1[b][3], but recommending dismissal because of
plaintiff's failure to respond to motion to dismiss
and the reasons set forth in defendants' motion
papers), adopted by 1997 U.S. Dist. LEXIS 16340,
at *2, 1997 WL 640982 (N.D.N.Y. Oct. 14,
1997) (Pooler, J.); accord, Carter v. Superintendent
Montello, 95-CV-0989, 1996 U.S. Dist. LEXIS
15072, at *3 (N.D.N.Y. Aug. 27, 1996) (Hurd,
M.J.), adopted by 983 F.Supp. 595 (N.D.N.Y.1996)
(Pooler, J.).
19 See, e.g., Hernandez, 2003 U.S. Dist. LEXIS 1625,
at *8, 2003 WL 22143709; accord, Topliff v. Wal-
Mart Stores East LP, 04-CV-0297, 2007 U.S. Dist.
LEXIS 20533, at *28 & n. 43, 2007 WL 911891
(N.D.N.Y. March 22, 2007) (Lowe, M.J.); Hynes v.
Kirkpatrick, 05-CV-0380, 2007 U.S. Dist. LEXIS
24356, at *5-6 & n. 2, 2007 WL 894375 (N.D.N.Y.
March 21, 2007) (Lowe, M.J.); Sledge v. Kooi,
04-CV-1311, 2007 U.S. Dist. LEXIS 26583, at
*28-29 & n. 40, 2007 WL 951447 (N.D.N.Y. Feb.
12, 2007) (Lowe, M.J.), adopted by 2007 U.S.
Dist. LEXIS 22458, 2007 WL 969576 (N.D.N.Y.
March 28, 2007) (McAvoy, J.); Kele v. Pelkey, 03-
CV-0170, 2006 U.S. Dist. LEXIS 95065, at *5 &
n. 2, 2006 WL 3940592 (N.D.N.Y. Dec. 19, 2006)
(Lowe, M.J.), adopted by 2007 U.S. Dist. LEXIS
4336, 2007 WL 189021 (N.D.N.Y. Jan. 22, 2007)
(Kahn, J.).
20 See, e.g., Ciaprazi v. Goord, 02-CV0915, 2005 WL
3531464, at *8 (N.D.N.Y. Dec.22, 2005) (Sharpe,
J.; Peebles, M.J.) (characterizing defendants'
threshold burden on a motion for summary
judgment as “modest”) [citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323-324, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986) ]; accord, Saunders v.
Ricks, 03-CV-0598, 2006 WL 3051792, at *9 &
n. 60 (N.D.N.Y. Oct.18, 2006) (Hurd, J., adopting
Report-Recommendation of Lowe, M.J.), Smith v.
Woods, 03-CV-0480, 2006 WL 1133247, at *17 &
n. 109 (N.D.N.Y. Apr.24, 2006) (Hurd, J., adopting
Report-Recommendation of Lowe, M.J.).
*5 After carefully reviewing Plaintiff's Amended
Complaint, and Defendants Weitz and Belanger's
memorandum of law in support of their motion to dismiss,
I find that Defendant Weitz and Belanger have met their
lightened burden on their unopposed motion, for the reasons
stated in their memorandum of law. (Compare Dkt. No. 5
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[Plf.'s Am. Compl.] with Dkt. No. 16, Part 3, at 1-11 [Defs.'
Mem. of Law].)
For these reasons, I recommend that the Court grant
Defendants Weitz and Belanger's motion to dismiss. Because
adequate reason exists to grant Defendants Weitz and
Belanger's unopposed motion, the Court need proceed no
further in its analysis of Plaintiff's Amended Complaint.
However, in the interest of thoroughness, and toward the end
of describing an alternative basis for dismissal of Plaintiff's
claims against Defendants Weitz and Belanger, I will subject
their motion to the more rigorous scrutiny appropriate for a
contested motion to dismiss.
B. Alternative Basis for Dismissal: Substantive Merit
of Defendants Weitz and Belanger's Motion to Dismiss
1. Failure by Plaintiff to Allege Facts Plausibly
Suggesting that Defendants Were Deliberately
Indifferent to a Serious Medical Need
A prisoner's allegation of deliberate indifference to a serious
medical need arises under the Eighth Amendment when
the alleged deliberate indifference occurred while prisoner
was incarcerated on a sentence of conviction, and under the
Fifth Amendment when the alleged deliberate indifference
occurred while prisoner was detained awaiting trial. Cuoco
v. Moritsugu, 222 F.3d 99, 106 (2d Cir.2000). Under either
constitutional amendment, the legal standard (for a deliberate
indifference claim) is the same. Cuoco, 222 F.3d at 106.
Generally, to state a claim for inadequate medical care under
the United States Constitution, a plaintiff must allege facts
plausibly suggesting two things: (1) that he had a sufficiently
serious medical need; and (2) that the defendants were
deliberately indifferent to that serious medical need. Estelle
v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d
251 (1976); Chance v. Armstrong, 143 F.3d 698, 702 (2d
Cir.1998).
a. Whether Plaintiff Had a Sufficiently Serious
Medical Need
To be sufficiently serious for purposes of the Constitution, a
medical condition must be “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.1996), cert. denied, 513 U.S. 1154, 115 S.Ct.
1108, 130 L.Ed.2d 1074 (1995); Chance, 143 F.3d at 702.
Here, Plaintiff alleges that, during the time in question,
he suffered from “mental health problems,” specifically,
“anxiety, depression and uncontrollable rage attacks.” (Dkt.
No. 5, at 13 [Plf.'s Am. Compl.].) Conspicuously absent
from Plaintiff's Amended Complaint (which is otherwise very
lengthy and detailed) is any allegation that, during the time
in question, he suffered from panic attacks or that he had
attempted (or even contemplated) suicide.
*6 After reviewing the relevant case law, I am unable
to find that Plaintiff has alleged facts plausibly suggesting
a serious medical need under the Eighth Amendment.
See Doty v. County of Lassen, 37 F.3d 540, 546 (9th
Cir.1994) (depression, headaches, nausea and shakes not
serious medical needs); Jones v. Tammany Parish Sheriff, 06-
CV-2875, 2007 U.S. Dist. LEXIS 18816, at *27-28, 2007
WL 647299 (E.D.La. Feb. 1, 2007) (“While some courts
have characterized mental illnesses as a ‘serious medical
need’ for purposes of constitutional analysis in Section
1983 claims by detainees, they have generally done so in
circumstances in which the plaintiff also exhibited seriously
harmful or severe symptoms or other ailments in combination
with a mental illness sufficient to render plaintiff's overall
condition serious.”) [collecting cases]; White v. Ghost, 456
F.Supp.2d 1096, 1102-03 (D. Dakota 2006) (bare allegations
of “depression” and “suicide” not sufficiently serious, but
allegation of two attempted suicides sufficiently serious).
b. Whether Defendants Weitz and/or Belanger Were
Deliberately Indifferent to any Serious Medical Need
In any event, even if I were to assume, for the sake of
argument, that Plaintiff has alleged facts plausibly suggesting
that (during the time in question) he suffered from a serious
medical need, I would find that he has not alleged facts
plausibly suggesting that either Defendant Weitz or Belanger
possessed a sufficient state of mind during the time in question
to make him deliberately indifferent to that need.
An official is “deliberately indifferent” to a serious medical
need when he “ ‘knows of and disregards an excessive risk
to inmate health or safety.’ “ 21 “ ‘[T]he official must both be
aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
the inference.’ “ 22 What this means, as a practical matter, is
that “deliberate indifference describes a state of mind more
blameworthy than negligence,” 23 one that is “equivalent to
criminal recklessness.” 24
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21 Johnson v. Wright, 412 F.3d 398, 403 (2d Cir.2005)
(citing Farmer v. Brennan, 511 U.S. 825, 837
[1994] ).
22 Johnson, 412 F.3d at 403 (citing Farmer, 511 U.S.
at 837).
23 Farmer v. Brennan, 511 U.S. 825, 835,
114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)
(“[D]eliberate indifference [for purposes of an
Eighth Amendment claim] describes a state of mind
more blameworthy than negligence.”); Estelle
v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285,
50 L.Ed.2d 251 (1976) (“[A] complaint that a
physician has been negligent in diagnosing or
treating a medical condition does not state a
valid claim of medical mistreatment under the
Eighth Amendment. Medical malpractice does not
become a constitutional violation merely because
the victim is a prisoner.”); Murphy v. Grabo,
94-CV1684, 1998 WL 166840, at *4 (N.D.N.Y.
Apr.9, 1998) (Pooler, J.) (“Deliberate indifference,
whether evidenced by [prison] medical staff or
by [prison] officials who allegedly disregard the
instructions of [prison] medical staff, requires more
than negligence.... Disagreement with prescribed
treatment does not rise to the level of a
constitutional claim.... Additionally, negligence
by physicians, even amounting to malpractice,
does not become a constitutional violation merely
because the plaintiff is an inmate.... Thus, claims
of malpractice or disagreement with treatment are
not actionable under section 1983.”) [citations
omitted].”).
24 Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d
Cir.1998) (“The required state of mind [for a
deliberate indifference claim under the Eighth
Amendment], equivalent to criminal recklessness,
is that the official knows of and disregards an
excessive risk to inmate health or safety; the
official must both be aware of facts from which
the inference could be drawn that a substantial risk
of serious harm exists; and he must also draw the
inference.”) [internal quotation marks and citations
omitted]; Hathaway v. Coughlin, 99 F.3d 550, 553
(2d Cir.1996) (“The subjective element requires
a state of mind that is the equivalent of criminal
recklessness ....”) [citation omitted]; cf. Farmer,
511 U.S. at 827 (“[S]ubjective recklessness as used
in the criminal law is a familiar and workable
standard that is consistent with the Cruel and
Unusual Punishments Clause as interpreted in our
cases, and we adopt it as the test for ‘deliberate
indifference’ under the Eighth Amendment.”).
There is no such criminal recklessness alleged in Plaintiff's
Amended Complaint. (See Dkt. No. 5, at 10-13 [Plf.'s Am.
Compl.].) Plaintiff alleges facts plausibly suggesting that, for
some if not all of the relevant time period, both Defendants
Weitz and Belanger were acting under the mistaken belief
that, during the weeks before Plaintiff had been taken off
of Lexapro, he had not been taking the drug. (Id. at 12.)
Moreover, Plaintiff does not even conclusorily allege that
Defendant Weitz was aware of the withdrawal symptoms
that Plaintiff was allegedly experiencing. (Id. at 11-13.) At
most, there might be a hint of negligence alleged. However,
negligence is not sufficient to state a claim for deliberate
indifference. Nor is a disagreement over a treatment decision-
which is what Plaintiff is essentially alleging. See Sonds v.
St. Barnabas Hosp. Corr. Health Servs., 151 F.Supp.2d 303,
312 (S.D.N.Y.2001) (“[D]isagreements [between a prisoner
and prison officials] over medications ... are not adequate
grounds for a section 1983 claim. These issues implicate
medical judgments and, at worst, negligence amounting
to medical malpractice, but not the Eighth Amendment.”)
[citation omitted]. As the Second Circuit once observed:
*7 It must be remembered that the
State is not constitutionally obligated,
much as it may be desired by
inmates, to construct a perfect plan
for [medical] care that exceeds what
the average reasonable person would
expect or avail herself of in life outside
the prison walls. [A] correctional
facility is not a health spa, but
a prison in which convicted felons
are incarcerated. Common experience
indicates that the great majority
of prisoners would not in freedom
or on parole enjoy the excellence
in [medical] care which plaintiff
[ ] understandably seeks.... We are
governed by the principle that the
objective is not to impose upon
a state prison a model system of
[medical] care beyond average needs
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but to provide the minimum level
of [medical] care required by the
Constitution.... The Constitution does
not command that inmates be given the
kind of medical attention that judges
would wish to have for themselves....
The essential test is one of medical
necessity and not one simply of
desirability.
Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir.1986) [internal
quotations and citations omitted].
For the above reasons, I recommend that, in the alternative,
the Court dismiss Plaintiff's claims against Defendants Weitz
and Belanger due to Plaintiff's failure to allege facts plausibly
suggesting that either Defendants Weitz or Belanger was
deliberately indifferent to any serious medical need possessed
by Plaintiff.
2. Whether Plaintiff Failed to Exhaust Administrative
Remedies
In the alternative, Defendants Weitz and Belanger argue that
Plaintiff's claim against them should be dismissed because
Plaintiff's Amended Complaint “contains no allegation that
plaintiff ever complained administratively about the same
medical decisions by Dr. Weitz and Mr. Belanger about
which plaintiff complains at pages 11 through 13 of his
complaint.” (Dkt. No. 16, Part 3, at 10 [Defs.' Mem. of Law].)
Although I agree with the main thrust of this argument (i.e.,
that Plaintiff's claim against Defendants Weitz and Belanger
should be dismissed due to Plaintiff's failure to exhaust his
available administrative remedies), I disagree somewhat with
Defendant Weitz and Belanger's reasoning.
For some years now, it has been the majority rule (followed
by the Second Circuit) that a prisoner's fulfillment of his
duty to exhaust his available administrative remedies under
the Prison Litigation Reform Act (“PLRA”) is not a fact
that the prisoner had to plead in order to state a claim
under 42 U.S.C. § 1983 but a fact that may be challenged
by a defendant through an affirmative defense (such as on
a motion for summary judgment pursuant to Fed.R.Civ.P.
56, or a motion to dismiss for lack of subject-matter
jurisdiction pursuant to Fed.R.Civ.P. 12[b][1] ) established by
the PLRA. See, e.g., Jenkins v. Haubert, 179 F.3d 19, 28-29
(2d Cir.1999) (“Because, under the PLRA, a prisoner must
exhaust administrative remedies before filing a § 1983 suit ...,
a defendant in a prisoner § 1983 suit may also assert as an
affirmative defense the plaintiff's failure to comply with the
PLRA's requirements.”); Snider v. Melindez, 199 F.3d 108,
114 (2d Cir.1999) (“A court may not dismiss for failure to
exhaust administrative remedies unless the court determines
that such remedies are available. Snider's answers [on a form
complaint] cannot establish that.”).
*8 Recently, the Supreme Court upheld this interpretation
of the exhaustion requirement, prohibiting circuits (such as
the Sixth, Tenth and Eleventh Circuits) from using exhaustion
as a heightened pleading requirement in prisoner civil rights
case. See Jones v. Block, 549 U.S. 199, ---- - ----, ---- - 127,
127 S.Ct. 910, 914-915, 918-923, 166 L.Ed.2d 798 (2007).
A prisoner has no independent duty to plead facts plausibly
suggesting that he exhausted his available administrative
remedies, in order to state an actionable claim under 42 U.S.C.
§ 1983. Block, 127 S.Ct. at 919-21. “[T]his is not to say that
failure to exhaust cannot be a basis for dismissal for failure
to state a claim.” Id. at 921. If a prisoner chooses to plead
facts regarding exhaustion, and those facts plausibly suggest
that he failed to exhaust his available administrative remedies,
then his Complaint may be dismissed for failure to state a
claim. Id. at 920-21. Simply stated, if a prisoner says nothing
or little about exhaustion in his pro se civil rights complaint,
he is likely protected from a Fed.R.Civ.P. 12(b)(6) motion to
dismiss premised on failure to exhaust. However, if he says
too much about exhaustion in that complaint so that his non-
exhaustion is readily apparent, he may “plead himself out of
court,” as the saying goes.
This is what has happened here. Addressing the exhaustion
requirement in his Amended Complaint, Plaintiff alleges as
follows:
The plaintiff Mr. McNamee (# 21562)
believes the exhaustion rule is not
inflexible and need not be followed
when the facility has previously
been challenged by other inmates.
Challenges have been made with
grievances and determinations have
been made that to resort [t]o
administrative remedies would be
obviously futile and pursuit would
cause irreparable injuries. The County
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Defendants take advantage of not
answering grievances and delaying
them for the sole purpose of causing
harm to plaintiffs.
(Dkt. No. 5, at 7 [Plf.'s Am. Compl.] [emphasis
added].) Through this allegation, Plaintiff has effectively
acknowledged that the Schoharie Jail had a grievance
procedure during the time in question, and that he knowingly
did not pursue that grievance procedure.
Granted, Plaintiff appears to attempt to invoke the
“unavailability,” “estoppel,” and “special circumstances”
exceptions to the exhaustion rule. More specifically,
Plaintiff appears to rely on the three-part inquiry that the
Second Circuit has held is appropriate where a defendant
contends that a prisoner has failed to exhaust his available
administrative remedies, as required by the PLRA. 25 First,
“the court must ask whether [the] administrative remedies
[not pursued by the prisoner] were in fact ‘available’ to the
prisoner.” 26 Second, if those remedies were available, “the
court should ... inquire as to whether [some or all of] the
defendants may have forfeited the affirmative defense of non-
exhaustion by failing to raise or preserve it ... or whether the
defendants' own actions inhibiting the [prisoner's] exhaustion
of remedies may estop one or more of the defendants from
raising the plaintiff's failure to exhaust as a defense.” 27 Third,
if the remedies were available and some of the defendants
did not forfeit, and were not estopped from raising, the
non-exhaustion defense, “the Court should consider whether
‘special circumstances' have been plausibly alleged that
justify the prisoner's failure to comply with the administrative
procedural requirements.” 28
25 See Hemphill v. State of New York, 380 F.3d 680,
686, 691 (2d Cir.2004).
26 Hemphill, 380 F.3d at 686 (citation omitted).
27 Id. [citations omitted].
28 Id. [citations and internal quotations omitted].
*9 However, Plaintiff provides absolutely no factual
allegations supporting his conclusory allegation that he
“need not ... follow[ ]” the exhaustion procedure since (1)
unidentified courts or administrative bodies have accepted
the argument of “other inmates” that their pursuit of their
administrative remedies would have been futile, and (2)
“[t]he County Defendants take advantage of not answering
grievances and delaying them for the sole purpose of causing
harm to plaintiffs.” (See generally Dkt. No. 5 [Plf .'s Am.
Compl.].) For example, Plaintiff does not allege that any court
or administrative body has ruled that Plaintiff's administrative
remedies have ever been unavailable at the Schoharie County
Jail. Nor does Plaintiff allege that either Defendant Weitz
or Defendant Belanger in any way frustrated Plaintiff's
ability to administratively grieve his claim against them.
The closes he comes is when he alleges that his “litigation”
has been “injure[d]” by the refusal of the County “Medical
Department” to release to him his medical records supporting
his claim against Defendant “Jane Doe # 1.” (Id. at 11.)
Such an allegation in no way supports Plaintiff's conclusory
allegation that he did not have to exhaust his administrative
remedies before filing his claim against Defendants Weitz and
Belanger.
For the above reasons, I recommend that, in the alternative,
the Court dismiss Plaintiff's claims against Defendants
Weitz and Belanger due to Plaintiff's having alleged facts
demonstrating that, before filing this action in federal court,
he failed to exhaust his administrative remedies with regard to
his inadequate-medical-care claim against Defendants Weitz
and Belanger.
C. Failure to Name or Serve, and/or Failure to State
Claim Against, Defendant “Jane Doe # 1”
Plaintiff had a duty to diligently litigate his deliberate-
indifference claim against Defendant “Jane Doe # 1,”
including a specific duty to identify, name and serve her.
See Fed.R.Civ.P. 41(b); N.D.N.Y. L.R. 41.2(a); Fed.R.Civ.P.
4(m); Fed.R.Civ.P. 16(e),(f). (See also Dkt. No. 6, at 2-4
[Order of Judge Kahn, filed 1/22/07, advising Plf. that
“the U.S. Marshals cannot effect service on a ‘Jane Doe’
defendant,” and that “if this individual is not timely served,
this action will be dismissed as against her,” and directing Plf.
to “take reasonable steps to ascertain her identity” and “file a
Motion to amend his Complaint and add such individual[ ], by
name, as [a] defendant[ ] to this lawsuit”].) Plaintiff has failed
to fulfill that duty, and has not shown good cause excusing
that failure.
Furthermore, using the well-known five-part balancing test
appropriate for a failure-toprosecute analysis, 29 I find that
this failure to name and serve has persisted for more than
a year; Plaintiff has had specific notice of the failure and
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the consequences of the failure; the individual designated as
“Jane Doe # 1” (whomever she may be) has been prejudiced
by the failure; and no sanction less drastic than dismissal
would be appropriate. Under the circumstances, I find that
Plaintiff's deliberate-indifference claim against “Jane Doe”
should be dismissed under a variety of authorities. 30
29 In the Second Circuit, courts consider five factors
(none of which is dispositive) when deciding
whether or not to dismiss an action for failure
to prosecute: “[1] the duration of the plaintiff's
failures, [2] whether plaintiff had received notice
that further delays would result in dismissal, [3]
whether the defendant is likely to be prejudiced
by further delay, [4] whether the district judge has
taken care to strike the balance between alleviating
court calendar congestion and protecting a party's
right to due process and a fair chance to be heard
and [5] whether the judge has adequately assessed
the efficacy of lesser sanctions.” Shannon v. GE
Co., 186 F.3d 186, 193 (2d Cir.1999) (affirming
Fed.R.Civ.P. 41[b] dismissal of plaintiff's claims by
U.S. District Court for Northern District of New
York based on plaintiff's failure to prosecute the
action) [citations omitted].
30 I note that the Court need not issue such an order
only upon motion of defense counsel but may
do so sua sponte. See Fed. R. Civ. 4(m) (“[T]he
Court, upon motion or on its own initiative after
notice to the plaintiff, shall dismiss the action
without prejudice as to that defendant or direct that
service be effected within a specified time.”); Fed.
R. Civ. 16(f) (“[T]he judge, upon motion or the
judge's own initiative, may make such orders with
regard thereto as are just....”). Furthermore, with
regard to Fed.R.Civ.P. 41(b), which speaks only
of a motion to dismiss on the referenced grounds,
courts retain the “inherent power” to sua sponte
“clear their calendars of cases that have remained
dormant because of the inaction or dilatoriness of
the parties seeking relief.” Link v. Wabash R.R. Co.,
370 U.S. 626, 630, 82 S.Ct. 1386, 8 L.Ed.2d 734
(1962); see also Saylor v. Bastedo, 623 F.2d 230,
238 (2d Cir.1980); Theilmann v. Rutland Hospital,
Inc., 455 F.2d 853, 855 (2d Cir.1972). Indeed,
Local Rule 41.2(a) recognizes this authority. See
N.D.N.Y. L.R. 41.2(a) (“Whenever it appears that
the plaintiff has failed to prosecute an action or
proceeding diligently, the assigned judge shall
order it dismissed.”) [emphasis added].
*10 However, even if the Court were to overlook Plaintiff's
failure to name and serve Defendant “Jane Doe # 1,” and
to review the pleading sufficiency of Plaintiff's deliberate-
indifference claim against her, the Court would find that
Plaintiff's factual allegations against her do not state a claim
upon which relief maybe granted. 31 Liberally construed,
Plaintiff's Amended Complaint alleges that, during the days
following November 7, 2005, Defendant “Jane Doe # 1,”
who was a physician at the Schoharie County Jail, violated
Plaintiff's Eighth Amendment rights by “misdiagnos[ing]
[Plaintiff's injury] and prescrib[ing] the wrong medication
to [Plaintiff] for headaches that were occurring” as a result
of “a head injury” that he suffered during the November 7,
2005, assault. (Dkt. No. 5, at 11 [Plf.'s Am. Compl.].) For
the sake of argument, I will assume that the vague “head
injury” that Plaintiff suffered during the referenced assault
constituted a sufficiently serious medical need for purposes of
the Eighth Amendment. In any event, the alleged errors that
Defendant Jane Doe # 1 committed during the days following
that injury constitute, at most, negligence, not the sort of
criminal recklessness that is required to state a claim under
the Eighth Amendment. (See, supra, Part III.B. 1.b. of this
Report-Recommendation.)
31 I note that the Court is authorized to conduct such
an analysis of the pleading sufficiency of Plaintiff's
claims pursuant 28 U.S.C. § 1915(e)(2)(B)(ii) and/
or 28 U.S.C. § 1915A(b).
For all of these reasons, I recommend that the Court sua
sponte dismiss Plaintiff's deliberate indifference claim against
Defendant “Jane Doe # 1” due to Plaintiff's failure to name or
serve her, and/or his failure to state a claim against her upon
which relief may be granted.
D. Failure to Serve Defendant Schoharie County
Medical Department
As indicated above in Part III.C. of this Report-
Recommendation, Plaintiff had a duty to diligently litigate
his claims against Defendant Schoharie County Medical
Department (if there exists such an entity), including a
specific duty to serve that entity. See Fed.R.Civ.P. 41(b);
N.D.N.Y. L.R. 41.2(a); Fed.R.Civ.P. 4(m); Fed.R.Civ.P. 16(e),
(f). (See also Dkt. No. 8, at [Order of Magistrate Judge
Lowe, filed 3/5/07, directing that Plf. “must comply with the
requests by the Clerk's Office for any documents [including
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accurate USM 285 Forms] that are necessary to maintain
this action.”].) 32 Plaintiff has failed to fulfill that duty. (See
Dkt. No. 27 [Summons Returned Unexecuted as to Schoharie
County Medical Dept., filed 5/23/07].) Furthermore, he has
not shown good cause excusing that failure.
32 To the extent Plaintiff misnamed this entity, he had
a duty to discover and correct that error. (See Dkt.
No. 6, at 4 [Order of Judge Kahn, filed 1/22/07,
advising Plf. that he shall “take reasonable steps
to ascertain the identities of any other individual(s)
that purportedly violated plaintiff's civil and/or
constitutional rights and, if appropriate, file a
Motion to amend his Complaint and add such
individual [ ], by name, as [a] defendant[ ] to this
lawsuit”].)
Finally, using the balancing test appropriate for a failure-to-
prosecute analysis, I find that this failure to name and serve
has persisted for approximately nine months; Plaintiff has
had specific notice of the failure and the consequences of
the failure; the entity designated as “The Schoharie County
Medical Department” (whichever entity that may be) has been
prejudiced by the failure; and no sanction less drastic than
dismissal would be appropriate. Under the circumstances,
I find that Plaintiff's claims against Defendant Schoharie
County Medical Department should be dismissed under a
variety of authorities. (See, supra, note 30 of this Report-
Recommendation.)
*11 For these reasons, I recommend that the Court sua
sponte dismiss Plaintiff's claims against Defendant Schoharie
County Medical Department due to Plaintiff's failure to serve,
and/or his failure to diligently litigate his claims against, that
entity.
E. Failure to Prosecute Claims Against Remaining
Defendants
As indicated above in Part III.C. of this Report-
Recommendation, Plaintiff had a duty to diligently litigate
his claims against the remaining Defendants (i.e., Defendants
Hazzard, Cronk, Marsh, Hirst, Alexander, Grippin, and
Schoharie County Jail). See Fed.R.Civ.P. 41(b); N.D.N.Y.
L.R. 41.2(a); Fed.R.Civ.P. 4(m); Fed.R.Civ.P. 16(e),(f).
Using the balancing test appropriate for a failure-to-prosecute
analysis, I find that Plaintiff has failed to diligently prosecute
this action for approximately eight months, i.e., since about
June 4, 2007. I reach this conclusion for two reasons. First,
June 4, 2007, was the original deadline for Plaintiff's papers
in response to Defendants Weitz and Belanger's motion to
dismiss. Since that date, the Court has delayed deciding the
motion to dismiss, in large part, out of special solicitude to
Plaintiff, to permit him an adequate opportunity to respond.
I note that Local Rule 7.1(b)(3) gives a non-movant a duty
to promptly notify the Court when he intends to not respond
to a motion, and makes the failure to fulfill such a duty
punishable by the imposition of sanctions. N.D.N.Y. L.R.
7.1(b)(3). Plaintiff has failed to provide such notice to the
Court. Second, Local Rule 41.2(a) of the Local Rules of
Practice for this Court provides that “[i]n the absence of an
order by the assigned judge or magistrate judge setting any
date for any pretrial proceeding or for trial, the plaintiff's
failure to take action for four (4) months shall be presumptive
evidence of lack of prosecution .” N.D.N.Y. L.R. 41.2(a). As
of June 4, 2007, the last time that Plaintiff had taken any action
in this matter was about four months before, i.e., on February
2, 2007. (Dkt. No. 7 [Plf.'s IFP App., filed 2/2/07].)
Furthermore, I find that Plaintiff has had adequate notice of
his failure to prosecute and the consequences of the failure,
due to (1) Local Rules 7.1(b)(3) and 41.2(a) of the Local Rules
of Practice for this Court, which were available at Plaintiff's
correctional facility when he signed his Complaint in this
action in August of 2006, and (2) the several Orders that have
been filed in this action reminding Plaintiff, in part, of his
various litigation duties. (See Dkt. Nos. 4, 6, 8, 30, 31.)
Moreover, I find that the remaining Defendants have been
prejudiced by Plaintiff's failure to prosecute, and will continue
to be prejudiced by a further failure to prosecute. Further
delay by Plaintiff may very well result in the fading of
memories, the discarding of relevant documents, and the
retirement or transfer of witnesses. 33
33 See, e.g., Geordiadis v. First Boston Corp., 167
F.R.D. 24, 25 (S.D.N.Y.1996) (“The passage of
time always threatens difficulty as memories fade.
Given the age of this case, that problem probably
is severe already. The additional delay that plaintiff
has caused here can only make matters worse.”).
Additionally, I find that the need to alleviate congestion on the
Court's docket outweighs Plaintiff's right to receive a further
chance to be heard in this action. It is cases like this one that
delay the resolution of other cases, and that contribute to the
Second Circuit's dubious distinction as having (among the
twelve circuits, including the D.C. Circuit) the longest median
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time to disposition for prisoner civil rights cases, between
2000 and 2005 (9.8 months, as compared to a national
average of 5.7 months). Simply stated, I am unable to afford
Plaintiff with further special solicitude without impermissibly
burdening the Court and unfairly tipping the scales of justice
against the remaining Defendants.
*12 Finally, I have considered all less-drastic sanctions and
rejected them, in part because they would be futile under the
circumstances (e.g., an Order warning or chastising Plaintiff
would likely fall upon deaf ears, as did the Court's extension
Order of August 14, 2007, due to Plaintiff's apparent intent to
abandon pursuit of his claims in this action). (See Dkt. No. 30
[Order filed 8/14/07].)
For these reasons, I recommend that the Court dismiss
Plaintiff's claims against the remaining Defendants (i.e.,
Defendants Hazzard, Cronk, Marsh, Hirst, Alexander,
Grippin, and Schoharie County Jail) due to Plaintiff's failure
to diligently litigate his claims against them, unless Plaintiff
shows cause for this failure within ten (10) days of the date
of this Report-Recommendation.
ACCORDINGLY, it is
RECOMMENDED that Defendants Weitz and Belanger's
motion to dismiss for failure to state a claim (Dkt. No. 16) be
GRANTED, and that Plaintiff's claim of inadequate medical
care by Defendants Weitz and Belanger, set forth in Count
Three of Plaintiff's Amended Complaint (Dkt. No. 5), be
DISMISSED with prejudice for failure to state a claim; and
it is further
RECOMMENDED that Plaintiff's claim of inadequate
medical care by Defendant “Jane Doe # 1,” set forth in Count
Three of Plaintiff's Amended Complaint (Dkt. No. 5), be sua
sponte DISMISSED with prejudice due to Plaintiff's failure
to name or serve her, or, in the alternative, due to his failure
to state a claim upon which relief might be granted; and it is
further
RECOMMENDED that Plaintiff's claims against Defendant
Schoharie County Medical Department be sua sponte
DISMISSED with prejudice due to Plaintiff's failure to serve
that entity and/or his failure to diligently litigate his claims
against that entity; and it is further
RECOMMENDED that Plaintiff's claims against the
remaining Defendants (i.e., Defendants Hazzard, Cronk,
Marsh, Hirst, Alexander, Grippin, and Schoharie County Jail)
be sua sponte DISMISSED with prejudice due to Plaintiff's
failure to diligently litigate his claims against them, unless
Plaintiff shows cause for this failure within TEN (10) DAYS
of the date of this Report-Recommendation.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the
parties have ten 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 TEN 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
Svcs., 892 F.2d 15 [2d Cir.1989] ); 28 U.S.C. § 636(b);
Fed.R.Civ.P. 6(a), 6(e), 72.
All Citations
Not Reported in F.Supp.2d, 2008 WL 686796
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McNamee v. Schoharie County Jail
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 9:06cv01364
MCNAMEE v. THE SCHOHARIE COUNTY JAIL ET AL
— N.D.N.Y. Nov. 09, 2006 Docket
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McNamee v. Schoharie County Jail
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McNamee v. Schoharie County Jail
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Lewis v. Huebner, Not Reported in Fed. Supp. (2020)
2020 WL 1244254
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2020 WL 1244254
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Regina LEWIS, Plaintiff,
v.
Ellen HUEBNER, et al., Defendants.
No. 17-CV-8101 (KMK)
|
Signed 03/16/2020
Attorneys and Law Firms
Regina Lewis, Newburgh, NY, Pro Se Plaintiff.
Antwaun Gavins, Esq., New York State Office of the Attorney
General, New York, NY, Counsel for Defendants.
OPINION & ORDER
KENNETH M. KARAS, United States District Judge:
*1 Plaintiff Regina Lewis (“Plaintiff”) brings this pro
se Action, under 42 U.S.C. § 1983, against Nurses Ellen
Huebner (“Huebner”) and Lisa Wallace (“Wallace”), and
Security Hospital Treatment Assistants (“SHTAs”) MaryAnn
Franqui (“Franqui”), Barry Marlow (“Marlow”), and
Edward Campbell (“Campbell”) (collectively, “Defendants”),
alleging violations of her constitutional rights while she
was committed at Mid-Hudson Psychiatric Center (“Mid-
Hudson”). (See Second Am. Compl. (“SAC”) (Dkt. No. 51).)
Before the Court is Defendants’ Motion To Dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6) (the “Motion”).
(Not. of Mot. (Dkt. No. 72).) For the reasons that follow, the
Motion is partially granted.
I. Background
A. Factual Background
The following facts are drawn from Plaintiff's SAC, and
matters of which judicial notice may be taken, and are
assumed to be true for the purposes of the instant Motion.
At the time of the relevant events, Plaintiff was a forensic
patient at Mid-Hudson. (See Compl. 4 (Dkt. No. 1).) Mid-
Hudson is a secure adult psychiatric hospital operated by
the New York State Office of Mental Health (“OMH”) that
provides treatment to patients admitted by court order because
they have been found unfit to stand trial, or not responsible
by reason of mental defect, under § 730 of the New York
Criminal Procedure Law (“CPL”). See Lombardo v. Freebern,
No. 16-CV-7146, 2018 WL 1627274, at *2 (S.D.N.Y. Mar.
30, 2018).
On the morning of September 6, 2017, Plaintiff refused to
get out of bed because she was “suffering from a nervous
breakdown.” (SAC 1.) Defendant Marlow then “slapped the
left side of [her] face before using excessive force to put [her]
in a wheelchair” and told her that he “tried to break [her] ...
wrists.” (Id.) Marlow also announced that Plaintiff and her
“God damn letter writing” had “no credibility,” and falsely
accused her of threatening to punch him in the face. (Id.)
In response to Marlow's accusation, Defendants Wallace and
Huebner called a doctor to administer an injection to Plaintiff,
even though they “knew” the accusation was false. (Id.)
At approximately 9:20 a.m., Huebner pulled down Plaintiff's
pajama pants “well beneath [her] butt crack” in order to
administer the injection. (Id.) Plaintiff alleges that Huebner
did so “to intentionally shame and humiliate” her, to “cause
[her] pain,” and to “mock [her] for the [benefit of the] male
SHTAs holding [her].” (Id.) Plaintiff alleges that she “felt
sexually assaulted” and “violated.” (Id.) Defendant Franqui
said, “Good work guys! Now we [can] finally can [give
Plaintiff] meds over [her] objection[s].” (Id.)
At 12:20 p.m., Plaintiff refused to go to lunch because the
seven flights of stairs were “too much” for her. (Id.) A non-
party SHTA, “Mr. Turnyae,” put his knee into Plaintiff's back
while Huebner administered a second injection. (Id. 1–2.)
Plaintiff was then taken by wheelchair to the Special Services
Unit (“SSU”), a “unit for the acutely mentally ill,” where she
remained for three weeks. (Id. 2.)
*2 Sometime in November 2017, Defendant Campbell
was assigned to Plaintiff's ward. (Id.) As Plaintiff returned
from breakfast at approximately 9:20 a.m., another patient
(“Shaw”) stepped on the back of Plaintiff's boots three times,
kicked Plaintiff, and knocked Plaintiff's hat off. (Id.) When
Shaw refused to move and “remained behind [Plaintiff] on
[her] back,” Campbell radioed for the assistance of a senior
SHTA, Defendant Franqui. (Id.)
Shaw began to walk away, but upon reaching the stairwell,
she suddenly began kicking and punching Plaintiff. (Id.)
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As Plaintiff turned around to defend herself, Campbell,
“slammed” Plaintiff into the stairs “so hard that [her]
back and tailbone were in severe pain ... for nearly five
weeks.” (Id.) While Campbell restrained Plaintiff, another
non-party SHTA, “Mr. Lowry” restrained Shaw. (Id.) When
Franqui arrived, he asked Shaw “if she wanted to press
charges” against Plaintiff, and Campbell filed a report
identifying Plaintiff as the aggressor. (Id.)
Campbell's report caused Wallace and Huebner to “insist[ ]”
that Plaintiff “take medication.” (Id.) Wallace and Huebner
also “wrote a risk assessment that characterized [Plaintiff]
as unpredictable and assaultive, and ordered [Plaintiff] to be
on close-observation with no sharps and no hot liquid.” (Id.)
Wallace and Huebner renewed their assessment and order
every three days for four weeks, despite the fact that neither
was a member of Plaintiff's treatment team. (Id.) As a result
of their assessment, Plaintiff was forced to “write with a
crayon, sit by [her]self, and eat with [her] hands in the dining
hall.” (Id.) Plaintiff “also received an [‘]X[’], which is the loss
of privileges for as long as [she] was on close observation,”
which was “about four weeks.” (Id.) Plaintiff was prevented
from filing charges against both Shaw and Campbell. (Id. at
3.) Eventually, Shaw told Plaintiff that Campbell “put her up
to attacking [Plaintiff] with the promise of a sandwich and a
soda.” (Id.)
On an unspecified date, “[w]hile in the dining hall,” Campbell
mocked Plaintiff by stating that “[she] gave [her] daughter
away for adoption” and “call[ing] [her] other derogatory
names such as ‘ugly Newburgh bitch.’ ” (Id.) On November
29, 2017, Campbell needlessly chose to walk near Plaintiff
and “insult[ed] and “intimidate[ed] her.” (Id.) Plaintiff alleges
that Campbell's behavior is part of a “pattern of practice,” that
he “is under investigation for other brutal patient assaults”
and “for instigating other patient[-]on[-]patient assaults,”
that he has “a history of abusing minors in his former
employment,” and that he is “incapable of refraining from
harassing [Plaintiff] when he's around [her] with his words
and body language.” (Id.)
Plaintiff seeks punitive and compensatory damages and
whatever other relief the Court deems proper. (Id.)
B. Procedural Background
Plaintiff filed her initial Complaint on October 19, 2017, (see
Compl.), and an Application to proceed in forma pauperis
(“IFP”) on November 29, 2017, (Dkt. No. 7). On December
12, 2017, the Court made a preliminary finding that, because
Plaintiff adequately pleaded imminent danger of serious
physical injury, she was entitled to IFP status despite having
filed three frivolous claims. See 28 U.S.C. § 1915(g). (Dkt.
No. 9.) The Court noted, however, that its decision to do
so was “without prejudice to Defendants’ making a motion
seeking to revoke Plaintiff's IFP status” or to dismiss. (Id.)
*3 On February 6, 2018, the Court directed Plaintiff to file
an amended complaint by February 28, 2018. (Dkt. No. 20.)
On March 15, 2018, the Court docketed Plaintiff's Amended
Complaint, which contains a return address in Newburgh,
New York, thereby indicating that she had been released
from Mid-Hudson. (Am. Compl. 4 (Dkt. No. 21).) On May
24, 2018, Defendants filed a Motion to Revoke Plaintiff's
IFP Status and Dismiss Plaintiff's Amended Complaint.
(Dkt. Nos. 37–40.) On March 18, 2019, the Court granted
Defendants’ Motion to Revoke Plaintiff's IFP Status without
prejudice, but permitted Plaintiff to renew the Action within
30 days if she paid the appropriate filing fee or submitted an
IFP Application indicating her inability to do so. (Dkt. No.
46.)
On April 12, 2019, Plaintiff filed the operative SAC and
an IFP Application. (Dkt. No. 51.) On April 16, 2019,
the Court again granted Plaintiff IFP status. (Dkt. No.
52). On August 15, 2019, Defendants filed the instant
Motion and accompanying papers. (Dkt. No. 72–73.) On
August 26, 2019, Plaintiff filed a paper, styled “Motion
for Summary Judgment,” which the Court construed as
Plaintiff's Opposition. (Dkt. Nos. 76, 80.) On October 10,
2019, Defendants filed a Reply. (Dkt. No. 81.) Plaintiff has
since filed several additional letters, all of which the Court
has reviewed and considered in deciding the instant Motion.
(Dkt. Nos. 83–88).
II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint
“does not need detailed factual allegations” to survive a
motion to dismiss, “a plaintiff's obligation to provide the
grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (alteration and
quotation marks omitted). Indeed, Rule 8 of the Federal
Rules of Civil Procedure “demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft
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v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint
suffice if it tenders naked assertions devoid of further factual
enhancement.” Id. (alteration and quotation marks omitted).
Rather, a complaint's “[f]actual allegations must be enough to
raise a right to relief above the speculative level.” Twombly,
550 U.S. at 555. Although “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,
and a plaintiff must allege “only enough facts to state a
claim to relief that is plausible on its face,” id. at 570, if a
plaintiff has not “nudged [his] claim[ ] 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.’ ” (second alteration in original) (citation omitted)
(quoting Fed. R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks
a notable and generous departure from the hypertechnical,
code-pleading regime of a prior era, but it does not unlock the
doors of discovery for a plaintiff armed with nothing more
than conclusions.”).
“[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, 94 (2007)
(per curiam), and “draw[ ] 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)). Additionally,
“[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) (quotation marks
omitted); see also Wang v. Palmisano, 157 F. Supp. 3d 306,
317 (S.D.N.Y. 2016) (same). However, when the complaint
is from a pro se plaintiff, the Court may consider “materials
outside the complaint to the extent that they are consistent
with the allegations in the complaint.” Alsaifullah v. Furco,
No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y.
Aug. 2, 2013) (quotation marks omitted).
*4 Where, as here, a plaintiff proceeds pro se, the court
must “construe[ ] [her] [complaint] liberally and interpret[ ]
[it] to raise the strongest arguments that [it] suggest[s].”
Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013)
(quotation marks omitted). However, “the liberal treatment
afforded to pro se litigants does not exempt a pro se
party from compliance with relevant rules of procedural
and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555,
559 (S.D.N.Y. 2013) (quotation marks omitted); see also
Caidor v. Onondaga County, 517 F.3d 601, 605 (2d Cir.
2008) (“[P]ro se litigants generally are required to inform
themselves regarding procedural rules and to comply with
them.” (italics and quotation marks omitted)).
B. Analysis
Defendants argue that all official capacity claims are barred
by the Eleventh Amendment; that Defendants Franqui and
Wallace were not alleged to be personally involved in
the purported constitutional violations; and that Plaintiff's
allegations do not support claims for excessive force
or impermissible medical treatment under the Fourteenth
Amendment. (See generally Defs.’ Mem. of Law in Supp. of
Mot. To Dismiss (“Defs.’ Mem.”) 5–12 (Dkt. No. 73).) The
Court considers these arguments to the extent necessary for
resolution of the Motion.
1. Official Capacity Claims
As a threshold matter, insofar as Plaintiff pursues claims
against Defendants in their official capacities, such claims are
precluded by the Eleventh Amendment. “[A]s a general rule,
state governments may not be sued in federal court unless
they have waived their Eleventh Amendment immunity,
or unless Congress has abrogated the states’ Eleventh
Amendment immunity when acting pursuant to its authority
under Section 5 of the Fourteenth Amendment.” Gollomp v.
Spitzer, 568 F.3d 355, 366 (2d Cir. 2009) (citation, alteration,
and quotation marks omitted). “Courts have routinely held
that New York has not waived, and Congress has not
abrogated, sovereign immunity with respect to claims for
constitutional violations under [§§] 1981, 1983, or 1985.”
Carnell v. Myers, No. 17-CV-7693, 2019 WL 1171489,
at *4 (S.D.N.Y. Mar. 13, 2019) (citation and quotation
marks omitted); see also Murray v. Thomason, No. 17-
CV-7004, 2018 WL 5113955, at *4 (S.D.N.Y. Oct. 19,
2018) (same). Mid-Hudson is operated by OMH, an agency
of New York State. See Babcock v. N. Y. State Office of
Mental Health, No. 04-CV-2261, 2009 WL 1598796, at *26
(S.D.N.Y. June 8, 2009) (stating that psychiatric facilities
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established within OMH are state agencies protected by the
Eleventh Amendment); Vallen v. Mid-Hudson Forensic Office
of Mental Health, No. 02-CV-5666, 2004 WL 1948756, at
*3 (S.D.N.Y. Sept. 2, 2004) (“By statute the Mid-Hudson
Forensic Psychiatric Center is a ‘hospital’ within the ‘office’
of the Commissioner of OMH. It is a state facility and entitled
to the state's immunity.” (citation omitted)). As employees
of OMH facilities, Defendants are state officials and claims
against Defendants in their official capacities are barred by
the Eleventh Amendment. See McNair v. Kirby Forensic
Psychiatric Ctr., No. 09-CV-6660, 2010 WL 4446772, at
*7 (S.D.N.Y. Nov. 5, 2010) (“The individual defendants, all
of whom are employees of OMH, have been sued in both
their official as well as individual capacities.”). Accordingly,
“[b]ecause the Eleventh Amendment bars claims against
state employees sued in their official capacities, [P]laintiff's
claims against [Defendants] in their official capacities must
be dismissed.” Id. (footnote omitted).
2. Excessive Force Claims
*5 “The rights of patients who are involuntarily committed
have been likened to the rights of detainees awaiting trial.”
Lombardo, 2018 WL 1627274, at *15 (citations and quotation
marks omitted); see also Buthy v. Comm'r of Office of Mental
Health of N.Y. State, 818 F.2d 1046, 1050–51 (2d Cir. 1987)
(applying Due Process Clause protections afforded to pre-trial
detainees to persons confined due to incompetence to stand
trial or acquittal by reason of insanity). Thus, like pretrial
detainees, Plaintiff's rights under the Due Process Clause
are “at least as great as the Eighth Amendment protections
available to a convicted prisoner.” Darnell v. Pineiro, 849 F.3d
17, 29 (2d Cir. 2017) (citation omitted).
In bringing a claim for excessive force under the Fourteenth
Amendment, a plaintiff must allege that force was applied
“purposefully, knowingly, or (perhaps) recklessly” because
“accidental or negligent acts are not subject to Fourteenth
Amendment liability.” Edrei v. Maguire, 892 F.3d 525, 534
(2d Cir. 2018) (citation omitted), cert. denied, 139 S. Ct.
2614 (2019). A plaintiff must also allege facts suggesting
that the use of force was “objectively unreasonable” under
the circumstances. Kingsley v. Hendrickson, 135 S. Ct. 2466,
2473 (2015). The Supreme Court has suggested that the
following factors bear on the objective reasonableness of
force used: “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 2473. Moreover, courts considering the reasonableness of
force under the Fourteenth Amendment must account for the
“legitimate interests that stem from the government's need
to manage the facility in which the individual is detained,
appropriately deferring to policies and practices that ... are
needed to preserve internal order and discipline and to
maintain institutional security.” Id. (citation, alterations, and
quotation marks omitted). Additionally, claims for excessive
force under the Fourteenth Amendment must involve force
that is either “more than de minimis” or “repugnant to
the conscience of mankind.” United States v. Walsh, 194
F.3d 37, 48 (2d Cir. 1999) (citation and quotation marks
omitted); see also Lynch v. City of New York, ––– F.3d
––––, 2020 WL 1036620, at *7–8 (2d Cir. Mar. 4, 2020)
(explaining that “there is a de minimis level of imposition
with which the Constitution is not concerned,” and therefore
holding that a protestor who was detained for five hours
and punitively denied food, drink, and access to a bathroom
failed to state a Fourteenth Amendment claim (citation and
quotation marks omitted)); Rahman v. Schriro, 22 F. Supp.
3d 305, 314–15 (S.D.N.Y. 2014) (explaining that “de minimis
uses of force are necessarily excluded from constitutional
recognition” (citation omitted)). 1
1 Although the protections offered by the Fourth,
Eighth and Fourteenth Amendments differ in
substantial ways, courts generally consider Fourth
and Eighth Amendment excessive force cases
instructive when determining what constitutes de
minimis force, or force that is reasonable under
the circumstances, for Fourteenth Amendment
purposes as well. See Edrei, 892 F.3d at 542
(noting “the practice of the Supreme Court
and [the Second] Circuit, both of which cross-
pollinate between Fourth, Eighth, and Fourteenth
Amendment contexts” with respect to claims
of excessive force); Darnell, 849 F.3d at 34
(explaining that Eighth Amendment cases are
relevant to Fourteenth Amendment claims insofar
as “they address the practical importance of taking
into account the legitimate safety-related concerns
of those who run jails”); Walsh, 194 F.3d at 48
(explaining that the same standards apply, under
both the Eighth and Fourteenth Amendment, in
determining the objective reasonableness of force
in ensuring prison discipline); see also Graham v.
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Connor, 490 U.S. 386, at 398 (1989) (explaining
that Fourth Amendment standards are stricter than
Eighth and Fourteenth Amendment standards);
Shakir v. Derby Police Dep't, 284 F. Supp. 3d 165,
209 (D. Conn. 2018) (same).
a. Marlow
*6 Under these standards, Plaintiff cannot sustain an
excessive force claim against Marlow. With respect to
Marlow, Plaintiff alleges only that when she refused to get
out of bed, Marlow “slapped the left side of [her] face
before using excessive force to put [her] in a wheelchair”
and told her that he “tried to break [her] ... wrists.” (SAC
1.) Courts have repeatedly held that a single slap that results
in no injury constitutes unactionable, de minimis force.
See Santiago v. City of Yonkers, No. 13-CV-1077, 2015
WL 6914799, at *8 (S.D.N.Y. Oct. 30, 2015) (explaining,
in the context of the Fourth Amendment, that “an open-
handed slap ... with no medical evidence and no other
evidentiary support of injury, does not rise to the level
of a constitutional violation.” (citation and quotation mark
omitted)); Benjamin v. Flores, No. 11-CV-4216, 2012 WL
5289513, at *3 (E.D.N.Y. Oct. 23, 2012) (holding that a single
slap that resulted in “no injury at all” was insufficient to state
a Fourteenth Amendment claim); Santiago v. C.O. Campisi
Shield No. 4592, 91 F. Supp. 2d 665, 674 (S.D.N.Y. 2000)
(explaining that “an open-handed slap” is insufficient to give
rise to an excessive force claim under both the Eighth and
Fourteenth Amendments (citation omitted)); see also Vallen v.
Newson, Nos. 16-CV-2632, 16-CV-2893, 2019 WL 1317569,
at *4 (E.D.N.Y. Mar. 22, 2019) (“Courts have held that
isolated, de minimus [sic] uses of force against involuntarily
committed plaintiffs do not constitute excessive force and are
thus not constitutional deprivations.” (citation omitted)); cf.
Ben-Reuben v. Westchester County, No. 17-CV-9156, 2019
WL 1406868, at *4 (S.D.N.Y. Mar. 28, 2019) (declining
to dismiss an excessive force claim based on an alleged
slap where the court could not determine the extent of the
injuries from the complaint, and because the alleged use of
force was “entirely gratuitous” (citation omitted)). Moreover,
here, Plaintiff acknowledged that she was actively resisting
instructions at the time of the incident, (see SAC 1 (“I refused
to get out of bed ...”)), suggesting that the use of some force
by facility personnel was reasonable under the circumstances,
see Kingsley, 135 S. Ct. at 2473 (encouraging courts to
consider “whether the plaintiff was actively resisting” in
analyzing the reasonableness of force under the Fourteenth
Amendment); Kalwasinski v. Artuz, No. 02-CV-2582, 2003
WL 22973420, at *6–7 (S.D.N.Y. Dec. 18, 2003) (holding that
a prison official did not use excessive force in violation of the
Eighth Amendment when he pressed prisoner's face into wall
while attempting to secure the prisoner's compliance).
Similarly, Plaintiff's claim that Marlow used “excessive
force to put [her] in a wheelchair,” (SAC 1), fails because
it is a classic example of a conclusory allegation. See
Gulley v. Lizon, No. 19-CV-310, 2019 WL 1559432, at *3
(D. Conn. Apr. 10, 2019) (explaining that the plaintiff's
excessive force claim “consists of one conclusory statement”
and that “[a] conclusory statement is insufficient to state
a plausible claim for use of excessive force”); see also
Iqbal, 556 U.S. at 678 (explaining that Rule 8 “demands
more than an unadorned, the-defendant-unlawfully-harmed-
me accusation” (citation omitted)). In any case, the allegation
that Marlow “merely push[ed] Plaintiff back into [her]
wheelchair, without more,” is de minimis and therefore
insufficient to state a constitutional violation. Vallen, 2019
WL 1317569, at *4; see also Wilkins v. Gaddy, 559 U.S.
34, 38 (2010) (explaining, in an Eighth Amendment context,
that an “inmate who complains of a push or shove that
causes no discernible injury almost certainly fails to state a
valid excessive force claim.” (citation and quotation marks
omitted)). Similarly, Plaintiff's allegations that Marlow cursed
at her, threatened to break her wrists, announced she had “no
credibility,” and reprimanded her for writing letters cannot
support a claim because “[i]n this Circuit, allegations of
verbal harassment are insufficient to base a § 1983 claim
if no specific injury is alleged.” Walker v. Fierro, No. 17-
CV-05245, 2019 WL 6841798, at *3 (S.D.N.Y. Dec. 13,
2019) (quotation marks omitted) (citing, inter alia, Purcell
v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986)); Whitaker v.
Campbell, No. 19-CV-1357, 2019 WL 5696035, at *3 (D.
Conn. Nov. 4, 2019) (same); see also Williams v. Dubray, 557
F. App'x 84, 86 (2d Cir. 2014) (expressly applying the same
principle in a Fourteenth Amendment context).
b. Campbell
With respect to Campbell, however, Plaintiff has adequately
alleged an excessive force violation. First, Plaintiff alleges
that Campbell “slammed [Plaintiff] to the stairs[ ] so hard that
[her] back and tailbone were in severe pain ... for nearly five
weeks.” (SAC 2.) To be sure, Plaintiff admits that Campbell
purportedly did so in order to separate Plaintiff and another
inmate engaged in an altercation. (See id.) Ordinarily, the
use of limited force in such situations may be considered
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reasonable. See Barnes v. Harling, 368 F. Supp. 3d 573, 593
(W.D.N.Y. 2019) (“It is beyond dispute that attempting to
stop an inmate fight is a legitimate governmental objective
for a Corrections Officer.” (citation, alterations, and quotation
marks omitted)); Vargas v. N. Y. C. Dep't of Corr., No. 17-
CV-2544, 2018 WL 3392873, at *3 (S.D.N.Y. July 12, 2018)
(explaining that a use of force was “objectively reasonable
because [the defendant] was attempting to stop an inmate
fight, which is a legitimate governmental objective” and
because the defendant “did not use more force than necessary
to quell the inmate altercation”), appeal dismissed, No.
18-2334 (2d Cir. Oct. 18, 2018). Here, however, several
additional allegations plausibly suggest that Campbell's use
of force may have been objectively unreasonable. First,
Plaintiff alleges a prior history of altercations between
herself and Campbell. (See SAC 2 (explaining that Plaintiff
had previously filed a complaint against Campbell after an
incident where Campbell closed a gym door on, and then
twisted, Plaintiff's arm).) Insofar as this prior history adds
plausibility to Plaintiff's claim that Campbell tackled her
“for the very purpose of causing harm,” such allegations
also suggest that his conduct was “objectively unreasonable.”
Kingsley, 135 S. Ct. at 2476 (explaining that indications
of a “purpose to cause harm ... might help show that the
use of force was excessive” (citations and quotation marks
omitted)).
*7 Second, Plaintiff alleges that Campbell initiated the
altercation between Plaintiff and Shaw. (See SAC 3
(explaining that Shaw maintains that Campbell “put her
up to attacking [Plaintiff] with the promise of a sandwich
and a soda”).) Taken as true, these allegations suggest that
Campbell's use of force may not have been a reasonable
attempt to maintain order, but rather the culmination of
a premeditated plan to inflict physical harm on Plaintiff.
If so, the use of force was not the pursuit of “legitimate
interests that stem from the government's need to manage the
facility.” Kingsley, 135 S. Ct. at 2473 (citation, alteration,
and quotation marks omitted). On the contrary, Campbell's
conduct was “intended to injure in some way unjustifiable by
any government interest.” Edrei, 892 F.3d at 533 (citation and
quotation marks omitted). Accordingly, insofar as Plaintiff
seeks to pursue a claim against Campbell based on this
incident, that claim survives the instant Motion. 2
2 Because the right to be free from excessive force
is clearly established, see Kingsley, 135 S. Ct.
at 2470, and because Plaintiff has alleged that
Campbell's conduct was intentional, (see SAC 3),
Campbell's conduct cannot have been “based on
reasonable mistakes of law or fact,” Naumovski v.
Norris, 934 F.3d 200, 210 (2d Cir. 2019) (footnote
omitted). Accordingly, his claim of qualified
immunity fails.
3. Unwanted Medical Treatment
In general, individuals—including prisoners—“retain a
Fourteenth Amendment right to refuse medical treatment.”
Perkins v. Perez, No. 17-CV-1341, 2020 WL 248686, at
*6 (S.D.N.Y. Jan. 16, 2020) (citing Pabon v. Wright, 459
F.3d 241, 251 (2d Cir. 2006)); see also Washington v.
Harper, 494 U.S. 210, 229 (1990) (“The forcible injection of
medication into a nonconsenting person's body represents a
substantial interference with that person's liberty.”) However,
“[i]f an involuntarily committed psychiatric patient is acting
in a manner in which he is dangerous to himself and
those around him, psychiatrists may administer emergency
medication against the patient's will without violating his
rights.” Muhammad v. New York City, No. 15-CV-5603,
2016 WL 4367970, at *3 (S.D.N.Y. Aug. 12, 2016) (citation
omitted); see also Washington, 494 U.S. at 227 (holding that
“the Due Process Clause permits the State to treat a prison
inmate who has a serious mental illness with antipsychotic
drugs against his will, if the inmate is dangerous to himself or
others and the treatment is in the inmate's medical interest”).
Moreover, the Supreme Court has emphasized that decisions
concerning the treatment of committed individuals should
be “made by medical professionals rather than a judge,”
assuming adequate procedural safeguards exist. Id. at 231.
Thus, “decisions of professionals are presumptively valid and
will result in liability only when the decision ... is such a
substantial departure from accepted professional judgment,
practice, or standards as to demonstrate that the person
responsible actually did not base the decision on such a
judgment.” Lombardo, 2018 WL 1627274, at *18 (quotation
marks omitted) (ultimately quoting Youngberg v. Romeo, 457
U.S. 307, 320 (1982)).
Here, Plaintiff alleges that several individuals were involved
in the administration of unwanted treatments. For example,
Plaintiff alleges that Marlow falsely accused her of
threatening to “punch him in the face.” (SAC 1.) She further
alleges that although Wallace and Huebner “knew” that
Marlow's accusation was false, they nevertheless “called the
doctor and [Plaintiff] received an injection based on the
allegations.” (Id.) Huebner administered the injection, and at
some point thereafter, Franqui allegedly exclaimed, “Good
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work guys! Now we [can] finally can [give Plaintiff] meds
over [her] objection[s].” (Id.) Additionally, later that day,
Huebner gave Plaintiff “a second shot, because [Plaintiff]
refused to move again.” (Id. at 2.)
*8 These allegations support a claim against Marlow, but
not against the rest of the Defendants. With respect to
Marlow, the SAC suggests that Marlow fabricated the basis
on which a decision was reached to administer the disputed
injection. If so, and if Marlow's accusation was indeed the sole
basis for the treatment decision, then Marlow was directly
responsible for ensuring that the treatment decision was
not based on a proper “professional judgment” of Plaintiff's
situation, Youngberg, 457 U.S. at 321–22, and was therefore
without a rational connection to a “legitimate governmental
objective,” Edrei, 892 F.3d at 535. Marlow would thereby
have participated directly in a constitutional violation—even
if those administering the injection were entirely innocent.
See Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir.
2001) (explaining that “a person who, with knowledge of
the illegality, participates in bringing about a violation of the
victim's rights but does so in a manner that might be said to
be ‘indirect’—such as ordering or helping others to do the
unlawful acts, rather than doing them him—or herself” may
be held liable under § 1983); see also Case v. City of New York,
233 F. Supp. 3d 372, 397 (S.D.N.Y. 2017) (denying a motion
to dismiss a false arrest claim where the plaintiff alleged that
a defendant officer “processed his arrest” even though that
officer “may not have been present when [the plaintiff] was
seized” (citations omitted)). Plaintiff has therefore adequately
pleaded a Fourteenth Amendment claim against Marlow. 3
3 Because the right to refuse unwanted and
unnecessary medical treatment is clearly
established, see Washington, 494 U.S. at 229;
Pabon, 459 F.3d at 251, and because Plaintiff
has alleged that Marlow's conduct was intentional,
(see SAC 1), Marlow's conduct cannot have been
“based on reasonable mistakes of law or fact,”
Naumovski, 934 F.3d at 210 (footnote omitted).
Accordingly, his claim of qualified immunity fails.
Plaintiff's unwanted medical treatment claims against all other
Defendants, however, fail as a matter of law. “It is well
settled that, in order to establish a defendant's individual
liability in a suit brought under § 1983, a plaintiff must
show ... the defendant's personal involvement in the alleged
constitutional deprivation.” Grullon v. City of New Haven,
720 F.3d 133, 138 (2d Cir. 2013). “[D]irect participation
as a basis of liability in this context requires intentional[,
grossly negligent, or deliberately indifferent] participation in
the conduct constituting a violation of the victim s rights
by one who knew of the facts rendering it illegal.” Provost,
262 F.3d at 155 (footnote omitted); see also Grullon, 720
F.3d at 138 (explaining that liability under § 1983 can exist
for grossly negligent or deliberately indifferent conduct).
Here, Plaintiff has provided no non-conclusory allegations to
suggest that any Defendant other than Marlow had reason
to know the injection might be improper. Indeed, Plaintiff
acknowledges that several medical professionals involved in
the decision to administer the injection, (see SAC 1); thus,
that decision was “presumptively valid.” Lombardo, 2018
WL 1627274, at *18 (ultimately quoting Youngberg, 457 U.S.
at 320). While Plaintiff asserts that Wallace and Huebner
“knew” that Marlow's accusation was false, Plaintiff provides
no facts to support this assertion. (SAC 1.) The assertion is
therefore conclusory and should be discounted. See Boykin v.
Moreno, No. 17-CV-6869, 2020 WL 882195, at *7 (S.D.N.Y.
Feb. 24, 2020) (explaining that “conclusory allegations
of [D]efendants’ knowledge are insufficient” (alteration in
original) (citation and quotation marks omitted)). Relatedly,
while Plaintiff alleges that Franqui expressed happiness at
the opportunity to administer treatment “over [Plaintiff's]
objection,” the alleged statement was only made after the
treatment had already occurred. (SAC 1.) Moreover, Plaintiff
does not allege that Franqui was involved in the decision to
administer the unwanted injection, or that he had reason to
know that the basis for that injection might be fabricated.
(See id.) Therefore, from the perspective of Wallace,
Huebner and Franqui, the treatment was properly authorized
and objectively reasonable. Accordingly, as alleged, these
Defendants were not personally involved in a constitutional
violation. See Anthony v. City of New York, 339 F.3d 129,
142 (2d Cir. 2003) (explaining that because facility staff
“reasonably believed that [the plaintiff] was a danger to
herself or to others, ... the involuntary hospitalization was
therefore constitutional under the Fourteenth Amendment”).
Moreover, insofar as these Defendants were involved in such
a violation, such involvement “was based on reasonable
mistakes of ... fact,” and so they are shielded by qualified
immunity. Naumovski, 934 F.3d at 210 (footnote omitted).
All claims against Defendants other than Marlow based on
unwanted medical treatment are therefore dismissed.
4. Sexual Assault
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*9 In Crawford v. Cuomo, 796 F.3d 252 (2d Cir. 2015), the
Second Circuit explained that an inmate pursuing a sexual
abuse claim under the Eighth Amendment must allege both
subjective and objective elements, namely that the “officer's
intentional contact with an inmate's genitalia or other intimate
area ... serves no penological purpose and is undertaken with
the intent to gratify the officer's sexual desire or humiliate
the inmate[.]” 796 F.3d at 257. In general, protections under
the Fourteenth Amendment are “at least as great as the
Eighth Amendment protections available to a convicted
prisoner.” Darnell, 849 F.3d at 29 (citation and quotation
marks omitted). However, it is presently unclear whether
both prongs required for Eighth Amendment sexual abuse
claims are also required for claims of “sexual abuse under
the Fourteenth Amendment.” See Gilliam v. Black, No. 18-
CV-1740, 2019 WL 3716545, at *10 (D. Conn. Aug. 7, 2019)
(discussing the effect of Kingsley on Fourteenth Amendment
sexual abuse claims and noting a lack of clarity concerning
whether the same elements are necessary) (citations omitted);
Holland v. City of New York, 197 F. Supp. 3d 529, 546
(S.D.N.Y. 2016) (noting that it is unclear whether “sexual
abuse claims of a pretrial detainee must still meet both the
objective and subjective prongs of the traditional Eighth
Amendment analysis” (footnote omitted)).
Here, Plaintiff's claims cannot survive under either prong.
Plaintiff alleges only that, in the process of administering an
injection, Huebner “pulled [Plaintiff's] pajamas down well
beneath [her] butt crack and injected [her];” and that she do
so “to intentionally shame and humiliate” her, to “cause [her]
pain,” and to “mock [her] for the [benefit of the] male SHTAs
holding [her].” (SAC 1.) In acknowledging that Huebner's
contact with Plaintiff's “intimate area” came in the context
of an injection, Plaintiff acknowledges that Huebner's actions
served, at least facially, a legitimate purpose. Crawford,
796 F.3d at 257; see also Washington, 494 U.S. at 226
(recognizing “the State's legitimate interest in treating [a
committed individual] where medically appropriate for the
purpose of reducing the danger he poses”). Moreover,
the Supreme Court has emphasized that “courts must
show deference” to the professional judgment of medical
practitioners in the context of such treatment. Youngberg,
457 U.S. at 322. Accordingly, Plaintiff's allegations have not
satisfied the “objective” prong of a Fourteenth Amendment
sexual abuse claim, i.e., that Huebner's conduct served “no
penological purpose.” Crawford, 796 F.3d at 257.
With respect to the “subjective” prong, Plaintiff does not
allege any overtly sexual comments or conduct; rather, she
simply asserts knowledge of Huebner's intent and state
of mind in conclusory fashion. (See SAC 1 (“[Huebner]
did this to intentionally shame and humiliate me, and to
cause me pain.”).) Absent supporting factual allegations,
such conclusory statements are insufficient. See Grant v.
Norfleett, No. 17-CV-328, 2017 WL 1902150, at *3 (D.
Conn. May 9, 2017) (granting a motion to dismiss where
the sexual abuse claim was based on a conclusory allegation
that the defendants conducted the search for their own sexual
gratification, and the assertion that on occasions after the
plaintiff was strip searched, the defendants “watched him
like a piece of meat” (quotation marks omitted)); see also
Shaw v. Prindle, 661 F. App'x 16, 19 (2d Cir. 2016) (noting
that the court “cannot infer solely from the thoroughness of
the search”—described, inter alia, as “excessive searching of
[the] crotch area”—that the defendant “intended to search ...
with intent to arouse or gratify [his] sexual desires or to
humiliate [the plaintiff]” (quotation marks omitted)); cf.
Crawford, 796 F.3d at 257–58 (finding an Eighth Amendment
violation where the defendant “fondl[ed] and squeeze[d] [the
plaintiff's] penis in order to make sure [he] did not have
an erection,” because “[t]here is no penological justification
for checking to see if an inmate has an erection” (alteration
and quotation marks omitted)); id. at 258–59 (noting that
demeaning, overtly sexual comments “suggest[ed] that [the
defendant] undertook the search in order to arouse himself,
humiliate [the plaintiff], or both” (record citation omitted)).
Accordingly, the Court dismisses Plaintiff's Fourteenth
Amendment claim of sexual abuse.
5. Remaining Allegations
*10 Plaintiff's remaining allegations fail to state a claim
altogether. While Plaintiff alleges that, at some unspecified
time, Wallace and Huebner “insisted that [she] take
medication,” (SAC 2), Plaintiff offers no further details,
rendering the allegations impermissibly threadbare, see Neal
v. Asta Funding, Inc., No. 13-CV-2176, 2014 WL 3887760,
at *4 (S.D.N.Y. June 17, 2014) (explaining that “threadbare
allegations fail even to satisfy the liberal ‘plausibility’
pleading standard” (citing Twombly, 550 U.S. at 547)).
At best, “Plaintiff's claims boil down to nothing more
than a dispute ... over the treatment [she] has received....
[S]uch disagreement regarding the particularities of [her]
treatment is insufficient to state a claim.” Lombardo, 2018
WL 1627274, at *19 (citing, inter alia, Chance v. Armstrong,
143 F.3d 698, 703 (2d Cir. 1998)). Similarly, while Plaintiff
alleges that Wallace and Huebner's risk assessment led to
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 458 of 529

Lewis v. Huebner, Not Reported in Fed. Supp. (2020)
2020 WL 1244254
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 9
various restrictions on Plaintiff's activities and privileges,
(SAC 2), these restrictions do not amount to constitutional
deprivations, see id. at *18 (noting that an individual
committed in Mid-Hudson had “constitutionally-protected
liberty interests in adequate food, shelter, clothing, medical
care, and conditions of reasonable care and safety,” but
that the loss of various privileges did not amount to
a deprivation of protected liberty interests or pose an
unreasonable risk of serious damage to health (citation
and quotation marks omitted)); see also Falls v. Campbell,
No. 17-CV-35, 2019 WL 6251245, at *6 (S.D.N.Y. Nov.
21, 2019) (rejecting Fourteenth Amendment claims based
on the denial of commissary and telephone privileges and
other minor disciplinary measures). Finally, while Plaintiff
alleges that Campbell called Plaintiff “derogatory names”
and “insult[ed] and intimidate[ed]” her, (SAC 3), “verbal
harassment or profanity alone, unaccompanied by any injury,
no matter how inappropriate, unprofessional, or reprehensible
it might seem, does not constitute the violation of any
federally protected right and is therefore not actionable,”
Vogelfang v. Capra, 889 F. Supp. 2d 489, 508 (S.D.N.Y.
2012) (citation and quotation marks omitted); see also Walker,
2019 WL 6841798, at *3 (“In this Circuit, allegations of
verbal harassment are insufficient to base a § 1983 claim if
no specific injury is alleged.” (citation and quotation marks
omitted)). Accordingly, any purported claims based on these
allegations are dismissed.
III. Conclusion
For the reasons stated above, Defendants’ Motion To Dismiss
is partially granted and partially denied. Plaintiff may
proceed with a claim for administration of unwanted medical
treatment against Marlow based on the September 6, 2017
incident. Similarly, Plaintiff may proceed with a claim
for excessive use of force against Campbell based on the
November 2017 incident involving Plaintiff and Shaw. All
other claims, including any official capacity claims and all
claims against Huebner, Franqui and Wallace, are dismissed.
Because this is the first adjudication on the merits of Plaintiff's
claims, the dismissals are without prejudice. If Plaintiff
wishes to file a third amended complaint, Plaintiff must do so
within 30 days of the date of this Opinion & Order. Plaintiff
should include within that third amended complaint all
changes to correct the deficiencies identified in this Opinion
& Order that Plaintiff wishes the Court to consider. Plaintiff
is advised that the third amended complaint will replace, not
supplement, the SAC. The third amended complaint must
contain all of the claims, factual allegations, and exhibits
that Plaintiff wishes the Court to consider. If Plaintiff fails to
abide by the 30-day deadline, the dismissed claims may be
dismissed with prejudice, and the Action will proceed on the
remaining claims.
The Clerk is respectfully directed to terminate the pending
Motion, (Dkt. No. 72), as well as Plaintiff's purported
“Motion for Summary Judgment,” (Dkt. No. 76).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 1244254
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 459 of 529

Lewis v. Huebner
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
History (3)
Direct History (1)
1. Lewis v. Huebner
2020 WL 1244254 , S.D.N.Y. , Mar. 16, 2020
Related References (2)
2. Lewis v. Huebner
2019 WL 1236299 , S.D.N.Y. , Mar. 18, 2019
3. Lewis v. Marlow
2021 WL 2269553 , S.D.N.Y. , June 03, 2021
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 460 of 529

Lewis v. Huebner
© 2025 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 9 Filed 12/08/25 Page 461 of 529

Lewis v. Huebner
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 462 of 529

Forman v. Coughlin, Not Reported in F.Supp. (1994)
1994 WL 708150
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
1994 WL 708150
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Eugene FORMAN, Plaintiff,
v.
Commissioner Thomas A.
COUGHLIN, III, et al., Defendants.
No. 93 CIV. 8412 (LAK).
|
Dec. 20, 1994.
MEMORANDUM AND ORDER
KAPLAN, District Judge.
*1 Plaintiff, an inmate in the custody of the New York
State Department of Correctional Services (“DOCS”), alleges
that one of his property bags was lost during a transfer
between DOCS facilities in the period May 2 through 5,
1993. He further alleges that the bag contained legal materials
relating to various pending actions and proceedings and that
the loss therefore deprived him of access to the courts.
Plaintiff has brought this action, pursuant to 42 U.S.C. § 1983,
against sixteen DOCS officials, ranging from the former
Commissioner to the bus drivers who transported him during
one part of the transfer trip.
On September 27, 1994, Judge Mukasey, to whom the action
then was assigned, entered an order directing plaintiff, who is
proceeding pro se, to set forth a “written statement of facts as
to why this action should be maintained.” On October 7, 1994,
defendants moved to dismiss, arguing that the complaint fails
to state a claim upon which relief may be granted and, in any
case, that the Eleventh Amendment bars the claims against
the defendants in their official capacities. Plaintiff responded
with a memorandum of law, a written statement pursuant to
the September 27 order, a request to amend the complaint, and
proposed amendments. He concedes that the defendants may
not be sued in their official capacities and proposes to drop
that claim via the amendment to the complaint. The proposed
amendment, which we grant leave to file and deem served and
filed as of the date hereof, alleges also that the missing bag
turned up on December 23, 1993, just after this action was
commenced. It contained the pretrial hearing and sentencing
minutes to plaintiff's criminal case, but was missing the trial
minutes and certain other legal papers. 1
Although the amendment to the complaint charges “as yet
unidentified correction officer(s) with removing the legal
papers,” 2 plaintiff does not accuse any of the defendants of
any specific action with respect to the loss. Indeed, plaintiff
specifically disavows any claim that any of the defendants
intentionally deprived him of the legal materials or obstructed
his access to the courts. 3 Rather, the essence of plaintiff's
claim is that his legal materials were lost somewhere between
Point A and Point B, that the defendants all had some
connection with his transfer at one level of remove or the
other, and that their collective actions were reckless or grossly
negligent and resulted in, or failed to prevent, the loss. 4
Plaintiff may be viewed as alleging two different claims:
a claim that he was deprived of his property without due
process, and a claim that defendants' actions improperly
obstructed his access to the courts.
The property deprivation claim, if indeed plaintiff is making
that assertion, is without merit irrespective of the alleged level
of culpability because no constitutional injury is alleged. New
York has adequate remedies via recourse to the New York
Court of Claims. The Constitution requires nothing more.
Daniels v. Williams, 474 U.S. 327, 329 (1986); Hudson v.
Palmer, 468 U.S. 517, 533 (1984) (intentional deprivation);
Parratt v. Taylor, 451 U.S. 527, 543 (1981) (negligent
deprivation); Morello v. James, 810 F.2d 344 (2d Cir.1987).
*2 The claim of deprivation of access to the courts stands
on a different footing. As the right of access to the courts is a
substantive constitutional right, the existence of a State post-
deprivation remedy is not controlling where the defendants
intentionally interfere with its exercise. E.g., Morello, 810
F.2d at 348. It is equally clear that mere negligence cannot
form the predicate for a Section 1983 claim. Daniels, 474 U.S.
at 329; Morello, 810 F.2d at 347.
Here, plaintiff alleges loss through gross negligence or
reckless disregard, disavowing any claim of intentional
interference, on the one hand, or simple negligence, on
the other. The complaint appears to raise precisely the
issue foreshadowed—but not decided—in Daniels: “whether
something less than intentional conduct, such as recklessness
or ‘gross negligence,’ is enough to trigger the protections of
the Due Process Clause.” Daniels, 474 U.S. at 334 n. 3. This
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Forman v. Coughlin, Not Reported in F.Supp. (1994)
1994 WL 708150
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
appears to be an open question in this Circuit, but we have no
occasion to resolve it at this time.
Neither the complaint, plaintiff's memorandum, the statement
of facts filed in response to Judge Mukasey's order, nor the
proposed amended complaint contains any factual allegation
that supports the characterization of defendants' actions here
as recklessness or gross negligence. Plaintiffs are obliged to
set forth facts sufficient to support conclusory generalizations
or characterizations such as those made here. E.g., Fonte
v. Board of Managers of Continental Towers Condominium,
848 F.2d 24, 25 (2d Cir.1988); Alfaro Motors, Inc. v.
Ward, 814 F.2d 883, 887 (2d Cir.1987). Since there are no
allegations sufficient to support any charge against these
defendants beyond simple negligence, despite amendment of
the complaint and Judge Mukasey's September 27 order, the
complaint fails to state a claim upon which relief may be
granted in light of Parratt, Daniels, and Morello even given
the latitude properly afforded pro se litigants.
The Court is sympathetic to the inconvenience and frustration
that plaintiff has experienced. Moreover, we recognize that it
is difficult to imagine how plaintiff could be more specific
at this stage of the proceedings. His bag was taken from him
at the Clinton Correctional Facility. He then was transferred,
first to Downstate and then to Sing Sing, arriving at Sing
Sing three days later. The bag was missing for seven months
and then turned up with part of its alleged contents missing.
Plaintiff presumably is no more able to account for what
happened to his bag on its odyssey than would be the average
airline passenger who checked his or her bag in New York
only to have the bag turn up some time later in Los Angeles,
damaged and missing part of its contents. But plaintiff's
frustration does not justify his suing one, much less sixteen,
people in their individual capacities without having any basis
for suggesting any culpability on their part. 5 While the
inference that DOCS had something to do with the loss
perhaps would justify an action against the State in the Court
of Claims, it does not support charges of deprivation of
constitutional rights by any of these sixteen defendants.
*3 The motion to dismiss the complaint, as amended, is
granted.
SO ORDERED.
1 E.g., Memorandum of law in reply to defendants'
“motion to dismiss memorandum” (“Pl.Mem.”) at
19–21.
2 Pl.Mem. at 20.
3 Pl.Mem. at 8.
4 E.g., Pl.Mem. at 6, 8.
5 There is a brief statement in the complaint that
plaintiff was denied adequate access to the Sing
Sing law library. But there is no indication that any
of the defendants was responsible.
All Citations
Not Reported in F.Supp., 1994 WL 708150
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 464 of 529

Forman v. Coughlin
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (3)
Title PDF Court Date Type
1. Brief for Defendants-Appellees
Eugene FORMAN, Plaintiff-Appellant, v. Commissioner
Thomas A. COUGHLIN, III; et al., Defendants-Appellees.
1995 WL 17201946
C.A.2 Mar. 31, 1995 Brief
2. Plaintiff-Appellant's Pro Se Memorandum of Law
Brief and appendix
Eugene FORMAN, Plaintiff-Appellant, v. Thomas A.
COUGHLIN, III; C.O. D. James; Stephen Dalshiem,
Superintendent, ; Lieutenant Nobile; Sargeant Scoppa;
Sargeant Ohligher; Sargeant Keeinen; Brian Fischer,
Superintendent,; C.O. Jones; C.O. Eley; Correction Officer
Cousins; John P. Keane, Superintendent,; F. Feldstein,
Correction Officer; J. Bishop, Correction Officer; Sgt. Kelly,
Correction Officer; Daniel A. Senkowski, Superintendent,
Defendants-Appellees.
1995 WL 17201945
C.A.2 Feb. 16, 1995 Brief
3. Docket 1:93cv08412
FORMAN v. COUGHLIN, ET AL
— S.D.N.Y. Dec. 08, 1993 Docket
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 465 of 529

Forman v. Coughlin
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
History (3)
Direct History (3)
1. Forman v. Coughlin
1994 WL 708150 , S.D.N.Y. , Dec. 20, 1994
Affirmed by
2. Forman v. Coughlin
60 F.3d 812 , 2nd Cir.(N.Y.) , June 26, 1995
Certiorari Denied by
3. Forman v. Coombe
516 U.S. 949 , U.S. , Oct. 30, 1995
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 466 of 529

Ortiz v. City of New York, Not Reported in F.Supp.2d (2012)
2012 WL 6200397
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2012 WL 6200397
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Elminio ORTIZ, Plaintiff,
v.
The CITY OF NEW YORK, The City of New
York Department of Correction, New York City
Department of Health and Mental Hygiene, New
York City Health and Hospitals Corporation, Bellevue
Hospital Center, Manhattan Detention Center, North
Infirmary Command/Annex at Rikers Island, Dr.
Dolores Curbelo, Correction Officer “John” Howell,
Correction Officer “John” Harris, Captain “Jane”
Thomas, “John Does Nos. 1–20,” Defendants.
No. 12 Civ. 3118(HB).
|
Dec. 12, 2012.
OPINION & ORDER
Hon. HAROLD BAER, JR., District Judge. 1
1 John Runne, a second-year student at Brooklyn
Law School and a Summer and Fall 2012 intern
in my Chambers, provided substantial assistance in
researching and drafting this opinion.
*1 Before the Court is a motion to dismiss the
Complaint pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure (“FRCP”). Elminio Ortiz (“Plaintiff”)
seeks to recover compensatory and punitive damages
against numerous institutional and individual defendants;
all of whom, Plaintiff alleges, played a role in Plaintiff's
mistreatment while in the custody of the New York City
Department of Corrections and other related institutions.
Plaintiff brings suit pursuant to 42 U.S.C. §§ 1983, 1985 and
1986, as well as Title II of the Americans with Disabilities
Act (“ADA”), 29 U.S.C. § 12131 et seq., and § 504 of
the Rehabilitation Act, 29 U.S.C. § 794. In addition to
these federal causes of action, Plaintiff asserts state tort
claims for negligent medical care; negligent hiring, training,
supervision, and retention; premises liability; intentional
infliction of emotional distress; and conversion. For the
following reasons, the defendants' motion to dismiss is
GRANTED in part and DENIED in part.
Background
Plaintiff brings suit against numerous municipal and
individual defendants. In all, Plaintiff is suing: The City
of New York; the New York City Department of Health
and Mental Hygiene (“DOHMH”); the New York City
Health and Hospitals Corporation (“NYHHC”); the Bellevue
Hospital Center; the New York City Department of Correction
(“NYDOC”); the Manhattan Detention Center; the North
Infirmary Command/Annex at Rikers Island; and the agents,
servants and/or employees of these institutions, including
but not limited to; medical personnel, such as the Medical
Director (unnamed), Dolores Curbelo, M.D., physicians,
nurses, therapists, other medical staff, and John Does 1—
10; and NYDOC personnel such as the Warden (unnamed),
grievance committee members, Corrections Officer (“CO”)
“John” Howell, CO “John” Harris, Captain “Jane” Nicholas,
Captain “John” Thomas, John Does 11–20.
For two periods of time between September 2007 and
September 2009, Plaintiff was under the defendants' “control
and care.” Compl. ¶ 71–72. From September 2007 to
February 25, 2009, Plaintiff was held at Rikers as a pre-trial
detainee. Id. Plaintiff returned to the defendants' custody for
approximately one month beginning on September 13, 2009;
Plaintiff had been transferred on a temporary basis from the
New York State Department of Correction and Community
Supervision. 2 Id. While in the defendants' custody, Plaintiff
spent the majority of his time housed in Dorm 3 of the
Northern Infirmary Command/Annex at Rikers Island. Id. ¶
73. The North Infirmary Command/Annex is a facility for
inmates that “require medical services ... or other assistance
with their daily living.” Id. Plaintiff also alleges that he
spent time in the Manhattan Detention Center and the George
Motchan Detention Center at Rikers Island. Id.
2 Plaintiff does not name the New York State
Department of Correction and Community
Supervision as a defendant in this action.
Plaintiff is an above-the-knee amputee and, in order to
ambulate, requires the assistance of a prosthetic leg or
wheelchair. Compl. ¶ 71–72. Shortly after he began his
first stretch of time in the defendants' custody in September
2007, Plaintiff began to complain to NYDOC personnel
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Ortiz v. City of New York, Not Reported in F.Supp.2d (2012)
2012 WL 6200397
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
about the condition of his prosthetic leg. Plaintiff alleges he
experienced pain, discomfort, and impaired mobility from
the “exposed metal and bolts” on the prosthesis where it
attached to his leg. Id. ¶ 74. On three separate occasions,
Plaintiff consulted with doctors regarding the condition of
his prosthetic leg. Plaintiff does not name the doctors with
whom he consulted as individual defendants in this action. On
October 15, 2007, Plaintiff saw Dr. Michael Wieder, M.D., a
DOHMH employee. Id. ¶ 75. Plaintiff alleges that Dr. Wieder
diagnosed an infection at the point where the prosthesis came
in contact with Plaintiff's leg and “directed ... the prosthetic
[sic] be repaired.” Id. The defendants did not act upon Dr.
Wieder's order and did not repair the prosthesis. Id. ¶ 76.
On November 19, 2007, Plaintiff saw Dr. Joseph Thomas,
M.D., another DOHMH employee. Id. ¶ 77. Plaintiff avers
that Dr. Thomas stated that the prosthesis was unsalvageable
and directed that it be replaced. Id. Like with Dr. Wieder's
order, the defendants failed to act upon Dr. Thomas's order
and replace the prosthetic leg. Id. ¶ 78. Sometime in January,
2008, Plaintiff was transported to Bellevue Hospital where he
saw Dr. Jeffery Van Gelderen, M.D. Id. ¶ 79. Dr. Van Gelderen
concurred with Dr. Thomas's assessment and directed the
prosthesis be replaced. Id. Dr. Van Gelderen further provided
Plaintiff with a wheelchair and authorized Plaintiff to use
the wheelchair until the prosthetic leg was replaced. Id. No
action was taken pursuant to Dr. Van Gelderen's order until
some six months later on April 22, 2008, when Plaintiff was
measured and fitted for a new prosthesis. Id. ¶ 82. Despite the
fitting session, Plaintiff never received the new prosthesis and
instead continued to rely upon his deteriorated prosthesis and
the wheelchair. Id. ¶ 83. Throughout this time, Plaintiff claims
that he repeatedly complained of his condition, including
voicing grievances to Dr. Dolores Curbelo, M.D., the medical
director of NYDOC facilities. Id. ¶ 74.
*2 On August 13, 2008, NYDOC staff, including CO
“John” Harris, Captain “Jane” Nicholas, Captain “John”
Thomas, and John Does 11–20, seized Plaintiff's wheelchair.
Id. ¶ 84. The seizure of the wheelchair left Plaintiff only
with the use of his tattered prosthesis. Id. The next day,
Plaintiff fell and sustained injury to his shoulder, wrist,
and back as he attempted to shower on one leg. Id. ¶ 86.
Plaintiff alleges that the shower lacked hand rails, grab bars,
rubber mats, or “any other means of assistance for disabled
inmates....” Id. Whether Plaintiff had previously showered
with the assistance of his prosthesis or in his wheelchair is not
disclosed in the complaint.
On January 22, 2009, NYDOC staff, including CO
“John” Howell and Correction Defendant John Does 11–
20 conducted a search of Plaintiff's cell. Id. ¶ 87. During
the search, these defendants inspected the prosthetic leg and
removed its synthetic and foam cover, thereby “rendering it
unusable.” Id.
It was only after Plaintiff transferred out of NYDOC custody
on February 25, 2009, some ten months later after being fitted
for a new prosthesis, that his treatment improved. Id. ¶ 90. On
September 13, 2009, Plaintiff was transferred on a temporary
basis back into NYDOC custody. Before being admitted back
into the defendant's facilities, Plaintiff underwent a physical
examination. Id. ¶ 93. During this evaluation, the NYDOC
confiscated the treaded shoes Plaintiff received while in state
custody and replaced them with NYDOC's standard-issue,
non-treaded shoes. Id. Soon thereafter, on September 23,
2009, Plaintiff slipped between two beds on “sloped flooring
and/or a broken tile” in Dorm 3 of the North Infirmary
Command/Annex at Rikers Island and sustained injuries. Id.
¶ 95. Plaintiff asserts that the lack of traction in his new shoes
caused him to slip and fall. Id. ¶ 97.
The present action is Plaintiff's second attempt at recovery.
Plaintiff first brought a nearidentical set of claims in the
Eastern District before Judge Sterling Johnson in November,
2009. In March, 2012, that Court dismissed Plaintiff's claims,
neither with nor without prejudice, pursuant to FRCP 12(b)
(3). Ortiz v. City of New York, No. 09–CV–4215 (E.D.N.Y.
Mar. 30, 2012), ECF No. 32. The Court noted that Rikers
Island is part of Bronx County and therefore falls within the
Southern District's jurisdiction pursuant to 28 U.S.C. § 1391.
Id. Plaintiff moved to transfer his case to the Southern District
on the same day Judge Johnson dismissed the case. Judge
Johnson later denied Plaintiff's motion for transfer. Ortiz v.
City of New York, No 09–CV4215 (E.D.N.Y. Apr. 4, 2012),
ECF No. 33.
Discussion
I. Legal Standard
“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)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
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Ortiz v. City of New York, Not Reported in F.Supp.2d (2012)
2012 WL 6200397
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court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. (citing Twombly,
550 U.S. at 556). The requirement that the court accept all
factual allegations as true does not apply to “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements.” Id. The court's determination of
whether a complaint states a “plausible claim for relief” is a
“context-specific task” that requires application of “judicial
experience and common sense.” Id. at 679.
*3 The defendants' grounds for dismissal are fairly
straightforward. The gist of their argument is that the conduct
giving rise to Plaintiff's constitutional claims occurred outside
of the relevant statutes of limitations, and thus Plaintiff's
federal causes of action are time-barred. In the alternative,
the defendants argue that Plaintiff's federal claims are
insufficiently pled. If either argument held true, they argue,
this Court must dismiss the federal claims and should decline
to exercise supplemental jurisdiction over the remaining state
claims. In the event that this Court does not dismiss Plaintiff's
federal claims, the defendants ask this Court to nonetheless
exercise its discretion and decline to hear Plaintiff's state
tort claims. The defendants, however, do not challenge the
pleadings or merits of the pendant state claims.
II. Section 1983 Claims
Plaintiff raises several § 1983 claims and asserts that,
while under their custody, various combinations of the
named defendants, his First, Fourth, Eighth, and Fourteenth
Amendment rights were violated. 3 The statute provides a
private cause of action against state actors that deprive one of
his rights afforded by federal law and the Constitution. See
42 U.S.C. § 1983. “To state a claim under Section 1983, a
plaintiff must show: ‘(1) actions taken under color of law; (2)
deprivation of a constitutional or statutory right; (3) causation,
[and]; (4) damages .’ “ Rahman v. Fisher, 607 F.Supp.2d 580,
584 (S.D.N.Y.2009) (quoting Roe v. City of Waterbury, 542
F.3d 31, 36 (2d Cir.2008)). “A defendant's conduct must be a
proximate cause of the claimed violation in order to find that
the defendant deprived the plaintiff of his rights.” Id. (citing
Martinez v. California, 444 U.S. 227, 285 (1980)).
3 As noted in Bell v. Wolfish, the Eighth Amendment
does not directly apply to pretrial detainees. See
441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 60
L.Ed.2d 447 (1979), Pretrial detainees are entitled
to equivalent constitutional protection from the
Fourteenth Amendment's due process clause.
As a threshold matter, I reject Defendants' argument that
Plaintiff's § 1983 claims are time-barred. The defendants
assert that the majority of the alleged conduct giving rise
to Plaintiff's § 1983 claims fall outside of the statute
of limitations. Any conduct that occurred while Plaintiff
was temporarily held by NYDOC in September 2009, the
defendants argue, is insufficient to sustain any claims.
Plaintiff entered into NYDOC custody in September 2007 and
filed his first complaint in the Eastern District on October 10,
2009. Upon its dismissal on March 30, 2012, Plaintiff re-filed
a nearly identical complaint in the Southern District in early
April 2012.
Plaintiff's § 1983 claims are subject to a three-year statute
of limitations. See Owens v. Okure, 488 U.S. 235, 249–50,
109 S.Ct. 573, 102 L.Ed.2d 594 (1989) (“[W]here state law
provides multiple statutes of limitations for personal injury
actions, courts considering § 1983 claims should borrow the
general or residual statute for personal injury actions.”); see
also N.Y. C.P.L.R. § 214(5) (imposing three year statute of
limitations on personal injury actions). In addition to adhering
to the state's statute of limitations, § 1983 actions are subject
to the state's tolling rules. See Pearl v. City of Long Beach, 296
F.3d 76, 80 (2d Cir.2002) (“The Supreme Court has instructed
that in section 1983 actions, we borrow not only a state's
limitations period but also its tolling rules ..., unless applying
the state's tolling rules would defeat the goals of the federal
statute at issue.” (internal quotation marks omitted)). New
York's tolling rule, in pertinent part, states:
*4 If an action is timely commenced
and is terminated in any other manner
than by a voluntary discontinuance, a
failure to obtain personal jurisdiction
over the defendant, a dismissal of the
complaint for neglect to prosecute the
action, or a final judgment upon the
merits, the plaintiff ... may commence
a new action upon the same transaction
or occurrence or series of transactions
or occurrences within six months
after the termination provided that
the new action would have been
timely commenced at the time of
commencement of the prior action and
that service upon defendant is effected
within such six-month period.
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N.Y. C.P.L.R. § 205(a). As one sister court has noted,
“[n]either § 1983's chief goals of compensation and
deterrence ... or its subsidiary goals of uniformity and
federalism would be defeated by applying § 205(a)'s
tolling rule.” Gashi v. County of Westchester, No. 02 CIV.
6934(GBD), 2005 WL 195517 (S.D.N.Y. Jan.27, 2005). I
concur. Plaintiff's original action in the Eastern District was
dismissed on venue grounds, not because Plaintiff “failed to
obtain personal jurisdiction over the defendant[s]” or “for
[Plaintiff's] neglect to prosecute the action.” N.Y. C.P.L.R.
205(a). Consequently, I find that Plaintiff's § 1983 claims
based upon all of Defendants' alleged conduct is timely
pursuant to N.Y. C.P.L.R. 205(a).
a. Deliberate Indifference Claim
Plaintiff's first § 1983 claim asserts that all named defendants
exhibited deliberate indifference towards his serious medical
needs. As a pretrial detainee, Plaintiff's claim for deliberate
indifference arises under the Fourteenth Amendment. The
analysis of his claim, however, “involves the same test as that
used to analyze claims by convicted inmates under the Eighth
Amendment.” Mayo v. County of Albany, 357 F. App'x 339,
341 (2007). “The Eighth Amendment prohibits the infliction
of ‘cruel and unusual punishments' on those convicted
of crimes, which includes punishments that ‘involve the
unnecessary and wanton infliction of pain.’ “ Hernandez v.
Keane, 341 F.3d 137, 144 (2d Cir.2003) (quoting Gregg v.
Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859
(1976)). Under the Eighth Amendment, prison officials have a
duty to provide inmates adequate medical care. Salahuddin v.
Goord, 467 F.3d 263, 279 (2d Cir.2006). A concept that from
a reading of the Complaint appears to have been lost on those
responsible here.
In order to demonstrate that Plaintiff's constitutional rights
were infringed, he must show that he suffered from an
objectively serious medical condition and that his minders
acted with deliberate indifference in addressing his condition.
See Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998).
Relevant factors to consider when determining whether a
medical condition is sufficiently serious include: “(1) whether
a reasonable doctor or patient would perceive the medical
need in question as important and worthy of comment or
treatment, (2) whether the medical condition significantly
affects daily activities, and (3) the existence of chronic
and substantial pain.” Brock v. Wright, 315 F.3d 158, 162
(2d Cir.2003) (internal quotation marks omitted). Applying
this framework, I find Plaintiff's allegations support the
conclusion that he suffered from a sufficiently serious medical
condition. On multiple occasions, doctors ordered Plaintiff's
prosthetic leg either be replaced or repaired. Plaintiff's tattered
prosthesis caused infection, and its disrepair prolonged his
pain and decreased his mobility. Cf. id. at 702 (finding the
plaintiff's allegations of extreme oral pain, deteriorating teeth,
and an inability to chew properly were sufficiently serious as
a medical condition to survive a motion to dismiss).
*5 Upon demonstrating that his condition was sufficiently
serious, Plaintiff must further show that “a particular
defendant ‘kn[ew] of and disregard[ed] an excessive risk
to inmate health or safety.’ “ Brock v. Wright, 315 F.3d
158, 164 (2d Cir.2003) (quoting Farmer v. Brennan, 511
U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)).
“ ‘Deliberate indifference’ describes a mental state more
blameworthy than negligence; but a plaintiff is not required
to show that the defendant acted for the very purpose of
causing harm or with knowledge that harm will result.”
Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir.2003)
(internal quotation marks omitted). “[E]vidence that the risk
was obvious or otherwise must have been known to a
defendant is sufficient to permit a jury to conclude that the
defendant was actually aware of it.” Brock, 315 F.3d at 164.
Plaintiff alleges throughout the complaint that he repeatedly
complained about the condition of his prosthesis and his
leg. However, Plaintiff's allegations fall short of successfully
demonstrating that all named defendants were aware of, and
yet disregarded, Plaintiff's condition. Plaintiff's allegations
convince me that only the Bellevue Hospital Center, where
Plaintiff received his consultations; the NYDOC, which
includes the North Infirmary Command/Annex at Rikers
Island where Plaintiff was primarily housed; and Dr. Curbelo,
COs Harris and Howell, and Captains Nicholas and Thomas,
all of whom received Plaintiff's complaints, were sufficiently
aware of Plaintiff's condition. Despite this awareness, these
defendants never addressed Plaintiff's condition and in some
instances made it worse. Consequently, Plaintiff's claim of
deliberate indifference remains but is dismissed against all
other defendants.
b. Retaliation Claim
Plaintiff brings a § 1983 First Amendment retaliation claim
against CO Harris, Captains Nicholas and Thomas, and
Corrections Officer John Does, alleging that these defendants
retaliated against Plaintiff's repeated complaints and that they
did this by confiscating Plaintiff's wheelchair and crutches.
Plaintiff asserts a second retaliation claim against CO Howell
and John Does 11–20 for the search and seizure of Plaintiff's
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cell and the subsequent destruction of Plaintiff's prosthesis,
claiming that the defendants' conduct was in retaliation for
Plaintiff's complaints. To maintain a § 1983 First Amendment
retaliation claim, Plaintiff must show “(1) that the speech or
conduct at issue was protected, (2) that the defendant took
adverse action against the plaintiff, and (3) that there was
a causal connection between the protected speech and the
adverse action.” Dawes v. Walker. 239 F.3d 489, 492 (2d
Cir.2001) (citations omitted), overruled on other grounds,
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992,
152 L.Ed.2d 1 (2002). “For a retaliation claim to survive
a motion to dismiss, it must be ‘supported by specific and
detailed factual allegations, not stated in wholly conclusory
terms.’ “ Edwards v. Horn, No. 10 CIV. 6194 RJS JLC,
2012 WL 760172 at * 12 (S.D.N.Y. Mar.8, 2012) (quoting
Friedl v. City of New York, 210 F.3d 79, 86 (2d Cir.2000)).
Courts are instructed to “approach such retaliation claims with
skepticism and particular care, since virtually any adverse
action taken against a prisoner by a prison official-even those
not rising to the level of a constitutional violation-can be
characterized as a constitutionally proscribed retaliatory act.”
Smith v. City of New York, No. 03 CIV. 7576(NRB), 2005 WL
1026551, at *3 (S.D.N.Y. May 3, 2005) (internal quotation
marks omitted); accord Colon v. Coughlin, 58 F.3d 865, 872
(2d Cir.1995).
*6 Plaintiff's pleadings for this claim, while to say the least
troubling, are insufficient to survive the motion to dismiss.
Specifically, Plaintiff fails to establish the necessary causal
link between Plaintiff's complaints and the alleged retaliatory
conduct. Courts may consider several factors to determine
whether a causal relationship between a plaintiff's protected
activity and the retaliatory action, including: “(i) the temporal
proximity between the protected activity and the alleged
retaliatory act; (ii) the inmate's prior good disciplinary record;
(iii) vindication at a hearing on the matter; and (iv) statements
by the defendant concerning his motivation.” Baskerville v.
Blot, 224 F.Supp.2d 723, 732 (S.D.N.Y.2002) (citing Colon,
58 F.3d at 872–73). Plaintiff asserts that the destruction of
Plaintiff's prosthetic leg and the seizure of his wheelchair and
crutches were “in retaliation for the numerous complaints,
grievances and notices of claim filed by Plaintiff.” Compl.
¶ 188–89. However, unlike in Smith v. City of New York
where the plaintiff's cell was searched and his legal papers
destroyed only hours after he served corrections officers with
summons and complaints, here, Plaintiff does not provide any
factual or temporal link for me to attribute the conduct of these
defendants staff to Plaintiff's complaints. 2005 WL 1026551,
at *3. Plaintiff's pleadings fail to disclose any aberrations
in his disciplinary record, any connection in time between
his grievances and alleged misconduct, or any statements by
the implicated defendants attributing the motivation behind
their behavior to Plaintiff's complaints. See Baskerville, 224
F. Supp 2d at 732–33 (finding that the plaintiff's failure
to establish temporal link was overcome by a showing
of frivolous misbehavior reports and defendants' comments
linking their retaliatory actions to the plaintiff's protected
activity). Such claims are to be treated with skepticism and,
without more from the Plaintiff, I must dismiss his § 1983
First Amendment retaliation claim. Suffice it to say that in
other than a prison setting, the allegations here could be
sufficient to avoid a motion to dismiss.
c. Search of Cell and Destruction of Prosthesis
Plaintiff's final § 1983 claim asserts that the January 22,
2009, search of Plaintiff's cell and the subsequent destruction
of his prosthesis constituted a violation of Plaintiff's Fourth
Amendment rights. Plaintiff brings this claim against the City
of New York, the NYDOC, the North Infirmary Command/
Annex at Rikers Island, CO Howell, Captains Thomas and
Nicholas, and John Does 11–20.
At the time of the search, Plaintiff was in the defendant's
custody as a pretrial detainee. While, in general, the restraints
imposed upon a pretrial detainee's constitutional rights are
less severe than those imposed upon incarcerated inmates,
this distinction is less meaningful in the context of Fourth
Amendment claims where a facility's institutional security
stands as a competing consideration. “Although pretrial
detainees may have some residual privacy interests that are
protected by the Fourth Amendment, the maintenance of
prison security and the preservation of institutional order
and discipline are essential goals that may require limitation
or retraction of the retained constitutional rights of both
convicted prisoners and pretrial detainees.” United States v.
Willoughby, 860 F.2d 15, 21 (2d Cir.1988) (internal citations
and quotation marks omitted). 4 “Prison officials must be free
to take appropriate action to ensure the safety of inmates ...,”
and so “[p]rison administrators therefore should be accorded
wide-ranging deference in the adoption and execution of
policies and practices that in their judgment are needed
to preserve internal order and discipline and to maintain
institutional security.” Bell v. Wolfish, 441 U.S. 520, 547,
99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Consequently, a
limitation on a pretrial detainee's Fourth Amendment rights is
justified so long as it “rests on the twin-rationale of objective
administrators insuring prison security ....“ United States v.
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Cohen, 796 F.2d 20, 23–24 (2d Cir.1986). Where, however,
this rationale is not met, “a limitation imposed on prisoners'
constitutional rights cannot stand....” Id. at 24 (holding that
because it was instigated by a prosecutor and not prison
administrators, the search of a pretrial detainee's cell did
not serve an institutional purpose and therefore could be
challenged on constitutional grounds).
4 Plaintiff does not claim that the search of his cell
and the seizure of his prosthetic leg constituted
“punishment” in contravention of the Fourteenth
Amendment's due process clause. To succeed on
such a claim, Plaintiff would have to demonstrate
an “expressed intent to punish on the part of
detention facility” and that the inspection of his cell
and prosthetic leg was not reasonably related to the
maintenance of order and security within the jail.
Bell, 441 U.S. at 538–39 (internal quotation marks
omitted).
*7 Plaintiff asserts that “without reasonable basis and
in violation of regulation, procedure and protocol, [the
defendants] authorized and/or performed an illegal and
improper seizure of Plaintiff's personal possessions, ...
prosthesis, and medical equipment.” Compl. ¶ 181. The
search, seizure, and destruction of Plaintiff's prosthesis “was
clearly unreasonably intrusive and abusive.” Compl. ¶ 185.
Despite averring that the implicated defendants' conduct fell
outside proper search protocol, Plaintiff does not provide
any factual allegations for me to infer that the search and
inspection of his cell and prosthesis diverted from standard
NYDOC procedures.
The task of determining whether
a policy is reasonably related
to legitimate security interests is
peculiarly within the province and
professional expertise of corrections
officials ... [I]n the absence of
substantial evidence in the record
to indicate that the officials
have exaggerated their response to
these considerations[,] courts should
ordinarily defer to their expert
judgment in such matters.”
Florence v. Bd. of Chosen Freeholders of County of
Burlington, –––U.S. ––––, ––––, 132 S.Ct. 1510, 1517,
182 L.Ed.2d 566 (2012) (internal quotation marks omitted)
(holding that a policy of conducting strip-searches on
arriving detainees, including the petitioner who was arrested
for a minor offense, does not violate detainee's Fourth
Amendment rights). Further, the deprivation of property,
even if intentional, cannot support a due process § 1983
claim where “adequate state post-deprivation remedies are
available.” Davis v. New York, 311 F. App'x 397, 400
(2d Cir.2009) (finding that the seizure of inmate-plaintiff's
package was not actionable pursuant to § 1983 because
New York “affords an adequate post-deprivation remedy
in the form of ... a Court of Claims action”). Plaintiff,
here, does not offer any factual support to suggest that
this search was conducted for any reason other than the
“the maintenance of prison security and the preservation
of institutional order.” United States v. Willoughby, 860
F.2d 15, 21 (2d Cir.1988). While I find the destruction of
Plaintiff's prosthesis to be troublesome, I cannot conclude,
based on Plaintiff's pleadings, that the inspection of his cell
and Prosthesis were in contravention to his limited Fourth
Amendment rights. Consequently, the defendants' motion to
dismiss Plaintiff's claim that the defendants violated Plaintiff's
Fourth Amendment rights is dismissed.
III. Monell Claim
Plaintiff seeks to impute liability upon the municipal
defendants for engendering a custom or policy that enabled
the deprivation of Plaintiff's constitutional rights. Municipal
liability may be imputed
(1) when the action that is alleged
to be unconstitutional implements
or executes a policy statement,
ordinance, regulation or decision
officially adopted and promulgated
by that body's officers or (2)
for constitutional deprivations visited
pursuant to governmental ‘custom’
even though such a custom has
not received formal approval through
the body's official decisionmaking
channels.
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*8 Bernshtein v. City of New York, No. 11–0545–CV, 2012
WL 4040215 (2d Cir. Sept.14, 2012) (internal quotation
marks omitted) (quoting Monell v. Dep't of Soc. Serv., 436
U.S. 658, 694–95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). A
plaintiff raising a Monell claim must establish the existence
of the policy or custom as well as “a casual connection—an
‘affirmative link’—between the policy and [the] deprivation
y(4)27” Vippolis v. Village of Haverstraw, 768 F.2d 40, 44
(2d Cir.1985) (citations omitted). Plaintiff's pleadings must
advance sufficient facts to clear the Iqbal and Twombley
plausibility standard; boilerplate assertions of a policy that
caused injury will not survive a motion to dismiss. See Plair
v. City of New York, 789 F.Supp.2d 459, 468 (S.D.N.Y.2011)
(collecting cases of insufficiently pled Monell claims).
Plaintiff's allegations of a municipal policy or custom,
one that fostered the deprivation of his constitutional
rights, do not surmount the pleading requirements, and
Plaintiff's allegations are too conclusory and do not provide
this Court with a sufficient factual foundation to impute
municipal liability. For example, Plaintiff contends, without
factual support, that the “municipal defendants' actions and
omissions have created and maintained the perception among
highranking supervisors that a supervisor who turns a blind
eye towards evidence of staff [abuse and neglect] will suffer
no damage to his or her career.” Compl. ¶ 163. But one might
ask “where's the meat”; there are no supporting allegations.
Likewise, I cannot accept that the policies and customs of
municipal defendants were the “moving force” behind the
constitutional violations without any facts to support this
proposition. Id. ¶ 158. Consequently, Plaintiff's § 1983 Monell
claim is dismissed.
IV. Conspiracy Claims
a. Section 1985
Plaintiff alleges that the defendants 5 conspired to deprive
Plaintiff his constitutional rights and brings suit pursuant to
42 U .S.C. § 1985. For the following reasons, the defendants'
motion to dismiss Plaintiff's § 1985 is granted.
5 Plaintiff does not specify against whom he asserts
this claim.
In order to maintain a § 1985(3) claim, Plaintiff must plead:
(1) a conspiracy[;] (2) for the purpose
of depriving a person or class of
persons of the equal protection of
the laws, or the equal privileges and
immunities under the laws; (3) an overt
act in furtherance of the conspiracy;
and (4) an injury to the plaintiff's
person or property, or a deprivation of
a right or privilege of a citizen of the
United States.
Thomas v. Roach, 165 F.3d 137, 146 (2d Cir.1999).
“Such claims ... must be predicated upon a causal link
between the conduct complained of and animus or invidious
discrimination that is based upon the plaintiff's membership in
a protected class.” Pabon v. New York City Transit Auth., 703
F.Supp.2d 188, 202 (E.D.N.Y.2010). “Claims of conspiracy
that are vague and provide no basis in fact must be dismissed.”
Mumin v. Johnson, No. 07–CV–4973 (NG), 2008 WL 976268
(E.D.N.Y. Apr.9, 2008).
*9 Plaintiff's allegations are insufficient to sustain a §
1985 claim. Plaintiff contends that “the defendants, acting
in concert, willfully denied and unreasonably delayed the
plaintiff, a disabled inmate, equal protection of the law ....“
Compl. ¶ 199. Aside from noting that the defendants acted in
concert, Plaintiff fails to allege the existence of an agreement
or to spell out the members of the conspiracy. Further, Plaintiff
does not allege the existence of a conspiracy fueled by
Plaintiff's membership in a protected class. Consequently,
the defendants' motion to dismiss Plaintiff's § 1985claim is
granted.
b. Section 1986
“Section 1986 imposes liability on an individual who has
knowledge of discrimination prohibited under § 1985. Hence,
a § 1986 claim is contingent on a valid § 1985 claim.”
Graham v. Henderson, 89 F.3d 75, 82 (2d Cir.1996). Without
a valid § 1985 claim, Plaintiff's § 1986 must be dismissed.
The defendant's motion to dismiss Plaintiff's § 1986 claim is
granted.
V. ADA and Rehabilitation Acts Claim
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Plaintiff alleges that, as public entities pursuant to ADA,
42 U.S.C. § 12131(a)-(b), the institutional defendants the
City of New York, the NYDOC, the DOHMH, the NYHHC,
the Bellevue Hospital Center, the Manhattan Detention
Center, the George Motchan Detention Center, and the North
Infirmary Command/Annex at Rikers Island, discriminated
against Plaintiff and thereby ran afoul of the ADA, 42
U.S.C. § 12131, and § 504 of the Rehabilitation Act, 29
U.S.C. § 794. Under the ADA, “no qualified individual
with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits
of the services, programs, or activities of a public entity,
or be subjected to discrimination by any such entity.” 42
U.S.C. § 12132. Specifically, Plaintiff claims that these
defendants discriminated against him by, among other
things, exhibiting deliberate indifference towards his medical
condition, “failing to provide ... reasonable and adequate
accommodations; ... failing to repair and/or replace [the]
prosthesis;” and by depriving Plaintiff methods to ambulate.
Compl. ¶ 176. In addition to the defendants' arguments
regarding the timeliness and sufficiency of Plaintiff's claims,
they also argue that Plaintiff cannot maintain an ADA claim
grounded in negligent medical care. The defendants cite
Alexander v. Galeno in support of this proposition. No.
07 CIV 9662 RMB DFE, 2009 WL 3754254 (S.D.N.Y.
Nov.5, 2009) (dismissing inmate plaintiff's ADA claim
based upon the pain management regime put in place after
the plaintiff received multiple shoulder surgeries because
the plaintiff failed to establish the defendant's disability-
based discrimination). For the reasons below, the defendants'
motion to dismiss this claim is granted in part and denied in
part.
As a threshold matter, I find that Plaintiff's ADA
and Rehabilitation claim is timely. Plaintiff's ADA and
Rehabilitation Act claim is subject to a three-year statute
of limitations. See Maccharulo v. Gould, 643 F.Supp.2d
587, 592–93 (S.D.N.Y.2009) (noting that Rehabilitation Act
and Title II ADA claims are “governed by the applicable
state statute of limitations for personal injury actions”); see
also N.Y. C.P.L.R. § 214(5) (imposing three year statute of
limitations on personal injury actions). Plaintiff's complaint
in the Eastern District was timely; and while the Court there
dismissed on venue grounds on March 30, 2012, Plaintiff
re-filed his complaint in the Southern District in early April
2012. New York's tolling rules apply to the present claim. Cf.
Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir.2002)
(“The Supreme Court has instructed that in section 1983
actions, we borrow not only a state's limitations period but
also its tolling rules ..., unless applying the state's tolling rules
would defeat the goals of the federal statute at issue.”). The
Second Circuit has expressed that the purpose of the ADA
and Rehabilitation Acts are “to eliminate discrimination on
the basis of disability and to ensure evenhanded treatment
between the disabled and the able-bodied.” Doe v. Pfrommer,
148 F.3d 73, 82 (2d Cir.1998). Allowing the present action to
proceed—albeit several years after the alleged discriminatory
conduct—does not frustrate the statutes' goals of achieving a
level playing field among those of differing abilities.
*10 To demonstrate an ADA violation, Plaintiff must
establish that: “(1) [he is a] “qualified individual[ ]” with a
disability; (2) that the defendants are subject to the ADA;
and (3) that [the] plaintiff[ ][was] denied the opportunity to
participate in or benefit from defendants' services, programs,
or activities, or were otherwise discriminated against by
defendants, by reason of plaintiff[']s[ ] disabilities.” Henrietta
D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir.2003). The
elements of a § 504 Rehabilitation Act claim are nearly
identical, and require only that a plaintiff also demonstrate
that “the benefit [in question] is part of a program or activity
receiving Federal financial assistance .” Doe v. Pfrommer,
148 F.3d 73, 82 (2d Cir.1998) (internal quotation marks
omitted). For the purposes of this motion, Plaintiff has pled,
and the defendants do not contest, that Plaintiff has a disability
protected by the ADA and Rehabilitation Acts and that the
implicated defendants are public entities subject to the ADA
and Rehabilitation Acts.
Like with the causal deficiency in his First Amendment
Retaliation claim, Plaintiff's ADA and Rehabilitation Act
claim that is founded upon a deprivation of adequate medical
treatment fails because Plaintiff cannot demonstrate that
these services or benefits were denied to him “by reason
of plaintiff's disabilities.” Henrietta D., 331 F.3d at 272.
Plaintiff's allegations to this effect are conclusory; I find no
support within the complaint to conclude that Plaintiff was
deprived medical care because of his status as a qualified
individual with a disability. However, I believe that for
the purposes of surviving a motion to dismiss, Plaintiff
has sufficiently alleged that he was deprived of reasonable
accommodations. “ ‘Reasonable’ is a relational term: it
evaluates the desirability of a particular accommodation
according to the consequences that the accommodation will
produce.” Fulton v. Goord, 591 F.3d 37, 44 (2d Cir.2009)
(quoting Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131,
138 (2d Cir.1995)). “This requires a factspecific, case-by-case
inquiry ... not only into the benefits of the accommodation but
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into its costs as well.” Id . (internal quotation marks omitted).
“[T]he demonstration that a disability makes it difficult for
a plaintiff to access benefits that are available to both those
with and without disabilities is sufficient to sustain a claim
for a reasonable accommodation.” Henrietta D., 331 F.3d
at 276–76 (2d Cir.2003). Plaintiff notes that his wheelchair
was seized despite a doctor's order permitting its use, that a
shower in which he fell lacked handrails or other means of
assistance for someone with Plaintiff's disability, and that his
treaded footwear was confiscated upon his return to Rikers.
See Shaw v. New York Dep't. of Corr. Servs., 451 F. App'x
18, 20–21 (2d Cir.2011) (vacating district court's dismissal of
an ADA claim where inmateplaintiff alleged that defendants
failed to reasonably accommodate his learning disability
by allowing, for example, oral examinations or recorded
lectures). Consequently, Plaintiff's ADA and Rehabilitation
Acts claim survives this motion to dismiss but only for the
alleged failure to provide reasonable accommodations.
VI. Plaintiff's Pendant State Claims and Request for
Leave to Amend the Complaint
*11 In his opposition brief, Plaintiff informally requests
for leave to amend the complaint “in the event one or more
claims are dismissed by [the] Court.” Pl.'s Mem. Opp. 30.
The decision to grant leave to amend is at the discretion of
the Court. Carter v. City of New York, 11 CIV. 643 NRB,
2012 WL 1034914 (S.D.N.Y. Mar.23, 2012). “The court
should freely give leave when justice so requires,” FRCP
15(a)(2), and “[a]bsent evidence of undue delay, bad faith or
dilatory motive on the part of the [plaintiff], undue prejudice
to the opposing party, or futility, Rule 15's mandate must be
obeyed.” Monahan v. New York City Dept. of Corr., 214 F.3d
275, 283 (2d Cir.2000). “An amendment to a pleading will
be futile if a proposed claim could not withstand a motion
to dismiss pursuant to Rule 12(b)(6).” Dougherty v. Town of
N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d
Cir.2002). Finally, a court's decision to grant leave to amend
“must be balanced against the requirement under Rule 16(b)
that the Court's scheduling order shall not be modified except
upon a showing of good cause.” Velez v. Burge, 11–2897–PR,
2012 WL 1889402 (2d Cir. May 25, 2012) (internal quotation
marks omitted).
As noted above, I dismissed many of Plaintiff's claims
because his pleadings lacked sufficient factual support.
Before I grant Plaintiff's request for leave to amend, I first
must understand how Plaintiff intends to cure the deficiencies
of his pleadings. See Hayden v. County of Nassau, 180 F.3d
42, 51 (2d Cir.1999) (“[W]here the plaintiff is unable to
demonstrate that he would be able to amend his complaint
in a manner which would survive dismissal, opportunity to
replead is rightfully denied.”). Consequently, I am denying
Plaintiff's request for leave to amend but invite Plaintiff to
write to the Court within ten days of this order and explain
how he intends to amend the complaint.
In addition to his several federal claims, Plaintiff brings
state tort claims for negligent medical care; negligent
hiring, training, supervision, and retention; premises liability;
intentional infliction of emotional distress; and conversion. 6
While the defendants do not challenge the merits of these
claims, I am concerned that certain of them suffer from the
same or similar deficiencies for which I dismissed certain
federal claims. Plaintiff is therefore given an opportunity
to explain why his state-based claims for negligent hiring,
training, supervision, and retention and intentional infliction
of emotional distress satisfy the requisite pleading standards.
If Plaintiff chooses to pursue these claims, he must write the
Court within ten days from date or they will be dismissed with
prejudice.
6 The defendants ask this Court to exercise its
discretion and decline to hear these claims. As
an initial matter, I find that these claims “are
so related to claims in the action within such
original jurisdiction that they form part of the
same case or controversy under Article III of the
United States Constitution.” 28 U.S.C. § 1367(a).
Exercising supplemental jurisdiction over these
claims, therefore, is proper.
Conclusion
For the reasons stated above, the defendants' motion to
dismiss Plaintiff's § 1983 claims for First Amendment
Retaliation; Fourth Amendment unreasonable search and
seizure; and municipal liability is GRANTED. Further, the
defendants' motion to dismiss Plaintiff's § 1985, § 1986,
and ADA and Rehabilitation claim based upon deliberate
indifference is GRANTED. The defendant's motion to
dismiss Plaintiff's § 1983 claim for deliberate indifference
as against specific defendants and Plaintiff's ADA and
Rehabilitation Act claim for failure to provide reasonable
accommodation is DENIED. Finally, the defendants' request
that this Court decline to exercise supplemental jurisdiction
over Plaintiff's state tort claims is DENIED. Plaintiff is
invited to explain why his state claims for negligent hiring,
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Ortiz v. City of New York, Not Reported in F.Supp.2d (2012)
2012 WL 6200397
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training, supervision, and retention and intentional infliction
of emotional distress satisfy the requisite pleading standards.
The Clerk of Court is instructed to close this motion and
remove it from my docket.
*12 SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2012 WL 6200397
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Ortiz v. City of New York
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (2)
Title PDF Court Date Type
1. Verified Complaint
Elminio ORTIZ, Plaintiff, v. THE CITY OF NEW YORK,
The City of New York Department of Correction, New York
City Department of Health and Mental Hygiene, New York
City Health and Hospitals Corporation, Bellevue Hospital
Center, Manhattan Detention Center, George Motchan
Detention Center, North Infirmary Command/Annex at
Rikers Island, Dr. Dolores Curbelo, M.D., Correction
Officer "John" Howell, Correction Officer "John" Harris,
Captain "Jane" Nicholas,
2012 WL 12298832
S.D.N.Y. Apr. 20, 2012 Pleading
2. Docket 1:12cv03118
ORTIZ v. THE CITY OF NEW YORK ET AL
— S.D.N.Y. Apr. 20, 2012 Docket
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Ortiz v. City of New York
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
History
There are no History results for this citation.
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Green v. Niles, Not Reported in F.Supp.2d (2012)
2012 WL 987473
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Francis v. Rehman, D.C., February 26, 2015
2012 WL 987473
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Nathaniel GREEN, Plaintiff,
v.
G. NILES, Superintendent et al., Defendants.
No. 11 Civ. 1349(PAE).
|
March 23, 2012.
OPINION & ORDER
PAUL A. ENGELMAYER, District Judge.
*1 Defendants Superintendent Gene Niles, Joanne Comeau,
and the New York State Department of Corrections and
Community Supervision move to dismiss the second
amended complaint (the “Complaint”) of pro se plaintiff
Nathaniel Green (“Green”), which seeks $2 million in
damages for claims under 42 U.S.C. § 1983 arising out of
the alleged mishandling of his prison mail as retaliation for a
complaint he had made about mail handling. For the following
reasons, defendants' motion is granted and Green's Complaint
is dismissed.
I. Background 1
1 The Court's account of the underlying facts is
drawn from Green's second amended complaint,
dated September 27, 2011. See Decl. of Jeb Harben
in Supp. of Defs.' Mot. to Dismiss (Dkt.23), Ex.
A. This document was never filed with the Clerk
of Court, but defendants' motion responds to it,
and treats it as the operative Complaint in this
case. Because defendants accept this document as
the operative Complaint, the Court has ordered
it docketed, retroactive to September 30, 2011.
Except where specifically referenced, no further
citation to the Complaint will be made.
Green is an inmate at Otisville Correctional Facility. His
Complaint describes an episode in which defendant Comeau,
a mailroom clerk at Otisvil le during the period at issue,
allegedly mishandled two related pieces of his mail. 2
2 Green's prior two complaints referred to three
such alleged episodes. In his second amended
complaint, however, Green alleges only one
incident, involving two pieces of mail.
As background, Green alleges that he had filed a grievance
against Comeau on October 22, 2010, complaining of delay
in sending his mail. Thereafter, on October 31, 2010, Green
submitted a disbursement form for $100, to be deducted from
his inmate account and sent to Green's home. A check was
issued by non-party Ms. House, 3 an employee at Otisville's
business office, to be mailed to an address supplied by Green.
However, on or about November 7, 2010, Green spoke with
the intended recipient of the check and learned that the
check had not been received. On November 8, 2010, Green
attempted to resolve this issue with an inmate counselor,
and visited the inmate grievance office in an attempt to
get answers. After a grievance officer spoke informally
with House and Comeau, Green completed a written “stop
payment” form to cancel the $100 check, and submitted a new
disbursement form, this time for a $150 check, to be sent to
the intended recipient of the first check.
3 Green's prior two complaints name House as a
defendant, the present Complaint does not.
On November 12, 2010, the $150 was deducted from Green's
inmate account, along with $5.10 to cover mailing and
processing fees. Some two weeks thereafter, having not
received confirmation of receipt of the $150 check, Green
again visited the grievance office to inquire. Green learned
that the “stop payment” order had not been processed as to
the original $100 check, and that the $150 check had not yet
been mailed. Green then requested that the $150 check be
forwarded immediately to its intended recipient. Two weeks
later, however, he spoke to the addressee, who had still not
received either check. 4
4 Green's first amended complaint claims that the
original $100 check was received by the addressee
on or about November 27, 2010; the second
amended complaint does not specify whether that
original check was ever received.
Green continued to inquire as to what had become of his
mail. From a grievance officer who inquired on his behalf,
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Green learned that Comeau had, allegedly, admitted that she
had mistakenly misplaced the $150 check; Green does not
state whether that check was ever mailed or received. In fact,
Green alleges, Comeau's “mistake” was a deliberate attempt
to sabotage his mail, in retaliation for his earlier complaint
against her.
Green alleges that the delay in sending out his checks has
damaged relations between himself and his children, the
checks' intended recipients. The resulting distress, Green
claims, has left him unable to sleep or function normally.
*2 Green asserts that the mishandling of his mail violated
his rights under the First and Fourteenth Amendments, and
was cruel and unusual punishment, and thus violates his
Eighth Amendment rights. He also claims violations of
unspecified rights under the Ninth Amendment. For these
constitutional violations, Green claims $1 million damages.
Green alleges that the mishandling of his mail evinces a
degree of incompetence and malice such that he is entitled to
punitive damages against Comeau. 5
5 In total, Green seeks $2 million in damages,
comprised of $1 million for “pain and suffering
caused by the disruption of family ties”; $500,000
for the violation of his constitutional rights; and
$500,000 in punitive damages.
Courts in this Circuit have an obligation to construe pro se
complaints to raise “the strongest arguments they suggest.”
See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474–
75 (2d Cir.2006). Here, Green's Complaint clearly denotes an
intent to sue under 42 U.S.C. § 1983. The Complaint, liberally
construed, raises claims that: (1) Green was retaliated against
by defendant Comeau for complaining about the handling
of his mail; (2) Green was subjected to cruel and unusual
punishment under the Eighth and Fourteenth Amendments;
and (3) Green was deprived of property without due process
of law under the Fourteenth Amendment, insofar as checks
were drawn from his inmate account and then allegedly
mishandled. 6
6 Green's Complaint asserts a retaliation claim
against defendant Comeau, but not, in the Court's
view, a stand-alone First Amendment claim based
on the delay in sending out his mail. This is
clear from the difference between Green's first
amended complaint and the current Complaint.
As presently pled, the Complaint articulates
exclusively a retaliation theory; the previous
iteration complained of mail tampering more
generally. Case law in this Circuit does note a
prisoner's right to the free flow of mail. See, e.g.,
Davis v. Goord, 320 F.3d 346, 351 (2d Cir.2003)
(“a prisoner's right to the free flow of incoming
and outgoing mail is protected by the First
Amendment”). The Second Circuit has stated that
“incidents of mail tampering could constitute an
actionable violation (1) if the incidents suggested
an ongoing practice of censorship unjustified by
a substantial government interest, or (2) if the
tampering unjustifiably chilled the prisoner's right
of access to the courts or impaired the legal
representation received.” Id. Pleading such a claim
requires “specific allegations of invidious intent.”
Id. Green's present complaint falls short of meeting
these standards. He does not allege an ongoing
practice of censorship, but merely a single episode
involving delay in sending out two related pieces
of mail; he does not make specific allegations of
“invidious intent” but merely a conclusory claim
of animosity; and there is no claim that his mail
involved access to the courts or affected his legal
representation.
In any event, the Court is aware of no case
finding a First Amendment violation premised
on an isolated instance of delay in processing
non-legal mail, as opposed to a practice of
opening and reading prisoner mail, or stanching
the flow of mail entirely. Compare Angulo
v. Manny, No. 11–cv–878, 2012 U.S. Dist.
LEXIS 23088, at *10–11, 2012 WL 569190
(S.D.N.Y. Feb. 14, 2012) (dismissing claim for
failure to plead invidious intent where return
of inmate's letters was caused by mistake in
prison mailroom); and Bellezza v. Holland, No.
09–cv–8434, 2011 U.S. Dist. LEXIS 76030, at
*16–18, 2011 WL 2848141 (S .D.N.Y. July 12,
2011) (declining to dismiss First Amendment
claim where prisoner had adequately pled “an
ongoing practice of censorship”) with Robinson
v. N.Y. State Dep' t of Corr. Servs., No. 08–
cv–911, 2009 U.S. Dist. LEXIS 92294, at *29–
36 (N.D .N.Y. Sept. 8, 2009) (no constitutional
violation where prisoner's outgoing mail was
delayed by regulation imposing waiting period
on commissary transactions to buy stamps);
and Webster v. Fischer, 694 F.Supp.2d 163,
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193 (N.D.N.Y.2010) (“delay in delivery of a
single piece of mail” due to possible mishandling
insufficient to raise First Amendment claim);
and Wesolowski v. Washburn, 615 F.Supp.2d
126, 129 (W.D.N.Y.2009) (“At most, [plaintiff]
appears to have been inconvenienced, and to
have had some delays in his outgoing mail.
That is not enough to support a § 1983
claim.”). It would, therefore, not “be clear to
a reasonable [official]” that imposing a delay
in the processing of two related pieces of mail,
even if done intentionally, was “unlawful in the
situation” here presented. Nagle v. Marron, 663
F.3d 100, 114 (2d Cir.2011) (citing Saucier v.
Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150
L.Ed.2d 272 (2001)). As a result, even if Green's
Complaint were construed to raise a stand-alone
First Amendment claim, defendants would be
entitled to qualified immunity on such a claim.
On November 29, 2011, defendants moved to dismiss. They
argue that: (1) Green has not plausibly pled any constitutional
violation, because the conduct complained of does not
implicate Green's constitutional rights; (2) Green has not
plausibly alleged a claim of retaliation against defendant
Comeau; (3) Green has not plausibly alleged the personal
involvement of defendant Niles; (4) defendants are entitled
to qualified immunity; (5) to the extent the state official
defendants are sued in their official capacities, such claims
are barred by the Eleventh Amendment; and (6) Green did
not exhaust his administrative remedies under the Prison
Litigation Reform Act before filing suit.
On or about February 10, 2012, Green submitted an
opposition to defendants' motion. On March 2, 2012,
defendants submitted a reply.
II. Discussion
A. Applicable Legal Standards—Rule 12(b)(6) and
Section 1983
To survive a motion to dismiss pursuant to Rule 12(b)(6), a
plaintiff must plead sufficient factual allegations “to state a
claim to relief that is plausible on its face.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007). Despite the well-established rule in this circuit
that pro se submissions are to be liberally construed and
interpreted to raise “the strongest arguments they suggest,”
Triestman, 470 F.3d at 474–75, the plausibility standard
applies equally to pro se complaints. See Hill v. Curcione, 657
F.3d 116, 122 (2d Cir.2011); Okoh v. Sullivan, No. 11–1303–
cv, 2011 U.S.App. LEXIS 25117, at *2–3, 2011 WL 6318226
(2d Cir. Dec. 19, 2011) (summ.order).
To state a claim for relief that is facially plausible, an
allegation must be “more than an unadorned, the-defendant-
unlawfully-harmed me accusation”; a claim will only have
“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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868
(2009). Accordingly, where a plaintiff has not “nudged [his or
her] claims across the line from conceivable to plausible, [the]
complaint must be dismissed.” Twombly, 550 U.S. at 570.
*3 In making that determination, the Court must accept as
true all well-pleaded factual allegations in the complaint, and
“draw[ ] all inferences in the plaintiff's favor.” Allaire Corp.
v. Okumus, 433 F.3d 248, 249–50 (2d Cir.2006) (internal
quotation marks and citation omitted). On the other hand, “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, 129 S.Ct. at 1949; see also Twombly, 550 U.S. at 555
(court is “ ‘not bound to accept as true a legal conclusion
couched as a factual allegation’ ”) (quoting Papasan v. Allain,
478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)).
The claims in Green's Complaint are brought under 42 U.S.C.
§ 1983. “Section 1983 itself creates no substantive rights; it
provides only a procedure for redress for the deprivation of
rights established elsewhere.” Sykes v. James, 13 F.3d 515,
519 (2d Cir.1993) (citing City of Okla. City v. Tuttle, 471
U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)). “To
state a claim under Section 1983, a plaintiff must allege facts
indicating that some official action has caused the plaintiff
to be deprived of his or her constitutional rights.” Zherka v.
Amicone, 634 F.3d 642, 644 (2d Cir.2011) (citing Colombo
v. O' Connell, 310 F.3d 115, 117 (2d Cir.2002) (per curiam));
see also Ross v. Westchester Cnty. Jail, No. 10–cv–3937, 2012
U.S. Dist. LEXIS 3502, at *26, 2012 WL 86467 (S.D.N.Y.
Jan. 11, 2012). A defendant's conduct must therefore be a
proximate cause of the claimed violation in order to find
that the individual defendant deprived the plaintiff of his
rights. Ross, 2012 U.S. Dist. LEXIS 3502, at *26, 2012
WL 86467 (citing Martinez v. California, 444 U.S. 277,
285, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980)). Additionally,
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where, as here, a plaintiff is seeking money damages against
the defendants, the “personal involvement of defendants
in alleged constitutional deprivations is a prerequisite” to
recovery under § 1983. Farid v. Ellen, 593 F.3d 233, 249
(2d Cir.2010) (citing Farrell v. Burke, 449 F.3d 470, 484 (2d
Cir.2006)).
B. Personal Involvement of Defendant Niles
Because Green has, as a threshold matter, failed to plausibly
allege the personal involvement of defendant Niles, the claims
against Niles must be dismissed. Green argues that Niles, as
Superintendent of Otisville, is liable for allowing negligent
mailroom procedures to persist under his watch. However,
“the mere fact that a defendant possesses supervisory
authority is insufficient to demonstrate liability for failure
to supervise under § 1983.” Styles v. Goord, 431 F. App'x
31, 33 (2d Cir.2011) (summ.order); see also Richardson v.
Goord, 347 F.3d 431, 435 (2d Cir.2003) (“mere linkage in the
prison chain of command is insufficient to implicate a state
commissioner of corrections or a prison superintendent in a
§ 1983 claim.”) Green does not plead any facts suggesting
Niles's personal involvement in the events complained of;
indeed, beyond making the concl usory claim that Niles knew
of all happenings within the prison walls, Green does not
specifically allege how Niles was or could have been aware
of the events at issue in this case. As such, Green has not
plausibly pled Niles's personal involvement. The claims as
against Niles are, therefore, dismissed.
C. Green's Section 1983 Claims
*4 As noted, the Court construes the Complaint to assert
that (1) Green was retaliated against by defendant Comeau
for complaining about the handling of his mail, in violation
of the First Amendment; (2) Green was subjected to cruel
and unusual punishment under the Eighth and Fourteenth
Amendments; and (3) Green was deprived of property
without due process of law under the Fourteenth Amendment,
insofar as checks were drawn from his inmate account and
then allegedly mishandled. Each claim is addressed in turn.
1. Retaliation
Green primarily complains that the mishandling of his mail
in November and December 2010 was in retaliation for
his October 2010 complaint that defendant Comeau had
mishandled his mail. “To prove a First Amendment retaliation
claim under Section 1983, a prisoner must show [ ] ‘(1)
that the speech or conduct at issue was protected, (2) that
the defendant took adverse action against the plaintiff, and
(3) that there was a causal connection between the protected
speech and the adverse action.’ “ Espinal v. Goord, 558
F.3d 119, 128 (2d Cir.2009) (quoting Gill v. Pidlypchak, 389
F.3d 379, 380 (2d Cir.2004) (quoting Dawes v. Walker, 239
F.3d 489, 492 (2d Cir.2001), overruled on other grounds by
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992,
152 L.Ed.2d 1 (2002))). To meet the requirement of adverse
action, in turn, a plaintiff must show that the defendant's
“retaliatory conduct ... would deter a similarly situated
individual of ordinary firmness from exercising his or her
constitutional rights.... Otherwise, the retaliatory act is simply
de minimis, and therefore outside the ambit of constitutional
protection.” Dawes, 239 F.3d at 492–93 (citations omitted);
Jones v. Harris, 665 F.Supp.2d 384, 397 (S.D.N.Y.2009).
As an initial matter, Green's factual assertion that he had
filed a formal grievance against Comeau in October 2010
appears, quite clearly, to be a recent fabrication. Both Green's
original complaint (Dkt.2) and first amended complaint
(Dkt.6) expressly state that Green contemplated filing a
formal grievance against Comeau in October and November
2010 but declined to do so, waiting instead until December
2010 to file such a grievance. See, e.g., Dkt. 2 at ECF p.
7 (“I did not grieve her nor the matter and simply allowed
the matter to be informally handled”); Id. at ECF p. 17 (“I
informed them that I had intended to file a grievance about
the whereabouts of my funds and certified mail but that since
[the prison counselor] was so helpful and we got to the bottom
of the issue ... I would for the fourth time reserve my position
and allow the matter to be handled informally”); Id. at ECF
p. 22 (“On 12–21–10, I proceeded to file a formal grievance
in regards to this matter”).
Green's second amended complaint, however, reverses course
and tells a completely different story. It claims that he
did, in fact, file a formal grievance in October 2010. See
Harben Decl., Ex. A at ECF p. 3–4 (“On the 22nd day
of October, 2010, the plaintiff lodged a complaint with the
grievance office against the def. MRS. J. COM EAU ...
The plaintiff contends that after the filing of said complaint
the defendant, M RS. COM EAU began to retaliate against
him.”). Notably, shortly before Green's second amended
complaint was served on the defendants, the parties appeared
before the Hon. Richard M. Berman, to whom this case
was then assigned, and Green received, both in a letter
preceding that conference and at the conference itself, a
preview of defendants' arguments in their motion to dismiss.
One such argument was that any mishandling of Green's
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mail in November and December 2010 could not form the
basis of a retaliation claim, because the protected activity
Green now asserts—the filing of a formal grievance—had
not occurred until late December 2010, after any allegedly-
retaliatory conduct occurred. Under these circumstances, it
appears highly probable that Green's revised portrait of the
sequence of events in his second amended complaint reflects
not a genuinely refreshed recollection, but an attempt to
change the pleading so as to salvage his case.
*5 The Court is dubious that Green's newfound assertion
as to the timing of his grievance should be credited, so
as to defeat a motion to dismiss. Green has made patently
contradictory factual allegations across his Complaints as to
the timing of his 2010 grievance. Not only is his new claim
utterly irreconcilable with his earlier sworn complaints, but
it was made under circumstances under which Green had an
obvious motive to invent it: As he had been notified, his
retaliation claim was, otherwise, poised for dismissal. And
Green has not offered any explanation for changing his factual
claims.
It is, further, well-settled that, although the Court must accept
as true all of the factual allegations set out in a plaintiff's
complaint, draw inferences from those allegations in the
light most favorable to the plaintiff, and construe a pro
se complaint liberally, “the court need not accept as true
allegations that conflict with a plaintiff's prior allegations.”
Dozier v. Deutsche Bank Trust Co. Ams., No. 09–cv–9865,
2011 U.S. Dist. LEXIS 100467, at *5, 2011 WL 4058100
(S.D.N.Y. Sept. 1, 2011) (citing Colliton v. Cravath, Swaine &
Moore LLP, No. 08–cv–400, 2008 U.S. Dist. LEXIS 74388,
at *19, 2008 WL 4386764 (S.D.N.Y. Sept. 24, 2008) (“Where
a plaintiff blatantly changes his statement of the facts in
order to respond to the defendant['s] motion to dismiss ...
[and] directly contradicts the facts set forth in his original
complaint a court is authorized to accept the facts described
in the original complaint as true.”)); see also Palm Beach
Strategic Income, LP v. Stanley P. Salzman, P.C., No. 10–
cv–261, 2011 U.S. Dist. LEXIS 46867, at *15–22, 2011
WL 1655575 (E.D.N.Y. May 2, 2011) (declining to accept
plaintiff's new allegations which conflicted with those in
three previous versions of plaintiff's complaint and granting
defendant's motion to dismiss); Wallace v. New York City
Dep't of Corr., No. 95–cv–4044, 1996 U.S. Dist. LEXIS
22368, at *4, 1996 WL 586797 (E.D.N.Y. Oct. 9, 1996). This
is such a case. The Court therefore does not credit Green's
factual allegation that he filed a grievance against Comeau
in October 2010. Accordingly, Green has failed to plead
that any of the claimed retaliatory conduct—which allegedly
occurred in October and November 2010—occurred after he
engaged in the protected First Amendment activity of filing a
grievance. On these facts, Green's retaliation claim is patently
implausible, and is dismissed on this basis.
However, even if Green's factual allegation were credited, his
First Amendment claim would still merit dismissal, because
Green has failed to allege that the retaliatory acts directed
at him were sufficiently serious to reach constitutional
dimension. Here, Green claims that the alleged delay in the
processing of his mail was an adverse action undertaken in
response to his grievance against defendant Comeau. Courts
in this circuit have, however, held that limited withholding
or delay of a prisoner's mail does not constitute an adverse
action sufficient to support a retaliation claim. See Roseboro
v. Gillespie, 791 F.Supp.2d 353, 374 (S.D.N.Y. May 24, 2011)
(no adverse action where defendant temporarily withheld a
letter from plaintiff's wife); Tafari v. McCarthy, 714 F.Supp.2d
317, 347 (N.D.N.Y. Mar.31, 2010) (“Courts in this circuit
have held that claims of mail tampering do not constitute
adverse action.”); Islam v. Goord, No. 05–cv–7502, 2006
U.S. Dist. LEXIS 71853, at *21–22, 2006 WL 2819651
(S.D.N.Y. Sept. 29, 2006) (“Plaintiff also suggests that [a
defendant's] alleged tampering with his family and legal mail
was retaliatory. However, this is not the type of conduct
that would deter an ordinary individual from exercising his
constitutional rights. Plaintiff does not allege that he suffered
any injury as a result of the alleged tampering, and therefore
these isolated instances of mail tampering are not adverse
actions supporting a cause of action for First Amendment
retaliation.”); Battice v. Phillip, No. 04–cv–669, 2006 U.S.
Dist. LEXIS 53407, at *19, 2006 WL 2190565 (E.D.N.Y.
Aug. 2, 2006) (Defendant's “failure to deliver [plaintiff's]
mail on one occasion does not constitute the type of conduct
that would deter an ordinary individual from exercising his
constitutional rights. [Plaintiff] does not allege, much less
present any evidence to show, that he suffered any injury as
a result of the minor delay in receiving one piece of mail.
Even if intentional, this isolated incident is simply de minimis
and therefore outside the ambit of constitutional protection.”)
(internal quotation marks omitted); Rivera v. Pataki, No. 04–
cv–1286, 2005 U.S. Dist. LEXIS 2747, at *67–68 (S.D.N.Y.
Feb. 14, 2005). Green's retaliation claim, based on similar
delays in mail processing must, therefore, be dismissed as
well. 7
7 According to his prior two complaints, Green
himself did, in fact, file a grievance against
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defendant Comeau, after the alleged mail
withholding. The Court's adverse action analysis
is not premised on this fact. The inquiry is an
objective one, an adverse action can be found
“even where a particular plaintiff was not himself
subjectively deterred; that is, where he continued to
file grievances and lawsuits.” Gill, 389 F.3d at 381.
2. Cruel and Unusual Punishment
*6 Green also claims that he was subject to cruel and unusual
punishment by virtue of the unwarranted and retaliatory
delays imposed on his outgoing mail. To establish a claim of
cruel and unusual punishment cognizable under the Eighth
Amendment, a claimant must satisfy a two-part inquiry
consisting of both an objective and a subjective element.
Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir.1999) (citing
Wilson v. Seiter, 501 U.S. 294, 298–99, 111 S.Ct. 2321, 115
L.Ed.2d 271 (1991)). The objective element focuses on the
harm done in light of “contemporary standards of decency,”
Wright v. Goord, 554 F.3d 255, 268 (2d Cir.2009), and asks
whether “the deprivation alleged is sufficiently serious or
harmful enough to reach constitutional dimensions.” Romano
v. Howarth, 998 F.2d 101, 105 (2d Cir.1993) (internal
citations omitted). To establish the subjective element of an
Eighth Amendment claim, a plaintiff must show that the
defendant “had the necessary level of culpability, shown by
actions characterized by ‘wantonness' in light of the particular
circumstances surrounding the challenged conduct.” Wright,
554 F.3d at 268 (quoting Blyden, 186 F.3d at 262) (additional
internal quotation marks omitted)).
Here, although Green's Complaint alleges numerous errors by
Comeau and repeatedly impugns her competence, it does not
allege any fact from which the Court could plausibly conclude
that Comeau acted wantonly under the circumstances. Indeed,
although the Complaint alleges that the delay in sending out
his checks caused Green stress, and caused his relationship
with his children to deteriorate, there is no indication
whatsoever that Comeau was or could have been aware of
these consequences. There is no factual allegation from which
the Court can infer that Comeau understood that withholding
Green's mail would cause him particular distress or difficulty.
Green therefore has not plausibly pled that Comeau acted
“wantonly” under the circumstances in allegedly withholding
his mail. His claim of cruel and unusual punishment is,
therefore, dismissed.
3. Deprivation of Property
Finally, the Court construes Green's Complaint to claim
a violation of the Fourteenth Amendment, based on the
possibility (the Complaint is silent on this point) that the
money debited from his inmate account never reached its
intended beneficiary. However, a prison's loss of an inmate
property “whether intentional or negligent—will not support
a due process claim redressable under § 1983 if ‘adequate
state post-deprivation remedies are available.’ “ Davis v. New
York, 311 F. App'x 397, 400 (2d Cir.2009) (summ.order)
(quoting Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct.
3194, 82 L.Ed.2d 393 (1984)); see also Fogelfang v. Capra,
No. 10–cv–3827, 2012 U.S. Dist. LEXIS 33874, at *40–
41 (S.D.N.Y. Mar. 13, 2012). “New York in fact affords an
adequate postdeprivation remedy in the form of, inter alia,
a Court of Claims action pursuant to N.Y. Comp.Codes R.
& Regs. tit. 7, § 1700.3(b)(4).” Davis, 311 F. App'x at 400
(citing Jackson v. Burke, 256 F.3d 93, 96 (2d Cir.2001)); see
also Love v. Coughlin, 714 F.2d 207, 208–09 (2d Cir.1983)
(New York post-deprivation remedies adequate to preclude
prisoner's due process claim for loss of personal property).
Accordingly, even if any defendant was responsible for a loss
of money debited from Green's account, that injury is not
cognizable under § 1983.
D. Eleventh Amendment Immunity
*7 Green's Complaint does not specify the capacity in
which the defendants are sued. The Complaint is susceptible
of a reading that the defendants are sued in their official
capacities, as Green repeatedly refers to their titles throughout
the complaint. See, e.g., Harben Decl. at ECF p. 3 (listing
defendants and their official positions); id. (in text of
allegations, referring to defendant Comeau as “J. COMEAU,
(INSTITUTIONAL MAILROOM CLERK)”); id. at ECF p.
8 (“MRS. COMEAU, an employee of the NEW YORK
DEPARTMENT OF CORRECTIONAL SERVICES, showed
a complete disregard for the duties in which she was intrusted
[sic] to perform with diligence”). Because the Court has
found the Complaint to be implausibly pled in substance, the
question of the capacity in which defendants are sued need
not be resolved. However, to the extent that Green names
the defendants in their official capacities, all such claims
would, independently, have to be dismissed, because claims
for money damages against state employees in their official
capacities are deemed claims against the state itself, and are
barred by the Eleventh Amendment. See Kentucky v. Graham,
473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985);
Dube v. State Univ. of New York, 900 F.2d 587, 594–95 (2d
Cir.1990), cert. denied, 501 U.S. 1211, 111 S.Ct. 2814, 115
L.Ed.2d 986 (1991); Brims v. Ramapo Police Dep't, No. 11–
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Green v. Niles, Not Reported in F.Supp.2d (2012)
2012 WL 987473
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cv–712, 2011 U.S. Dist. LEXIS 152760, at *19, 2011 WL
7101233 (S.D.N.Y. Dec. 23, 2011).
E. Leave to Replead
A court should generally grant a pro se plaintiff “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) (internal
citations and quotation marks omitted). Here, however, Green
has submitted two amended complaints, for a total of three
complaints. He has thus far failed to state a claim, and the
Court is unpersuaded that a third amended complaint would
fare any better. Further, Green's second amendment was
undertaken after Green had gained a preview of defendants'
arguments in support of a motion to dismis, and the present
Complaint reflects at least one specific factual change that,
circumstantially, appears to have been an invention made in
response to the Court's identification of factual deficiencies
in Green's pre-existing pleading. In such circumstances, the
Court declines to grant Green leave to file a third amended
complaint.
CONCLUSION
For the foregoing reason, defendants' motion to dismiss is
granted. The Clerk of Court is directed to terminate the motion
at docket number 21 and to close this case.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2012 WL 987473
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Green v. Niles
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Filings (1)
Title PDF Court Date Type
1. Docket 1:11cv01349
GREEN v. THE NEW YORK STATE DEPARTMENT OF
CORRECTIONAL SERVICES
— S.D.N.Y. Feb. 22, 2011 Docket
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Green v. Niles
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History
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Green v. Niles
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Clay v. Doe, Not Reported in Fed. Supp. (2020)
2020 WL 6151436
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 6151436
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Daniel CLAY, Plaintiff,
v.
Sergeant John DOE, et al., Defendants.
20-CV-07692 (PMH)
|
Signed 10/20/2020
Attorneys and Law Firms
Daniel Clay, Marcy, NY, pro se.
PARTIAL TRANSFER ORDER,
AND VALENTIN ORDER
PHILIP M. HALPERN, United States District Judge:
*1 Plaintiff, currently incarcerated at Midstate Correctional
Facility, brings this pro se action under 42 U.S.C. § 1983,
alleging that four John Doe correction officers assaulted him
at Downstate Correctional Facility (the “Downstate claims”).
He also alleges that after he was transferred to Great Meadow
Correctional Facility, an unnamed doctor denied him medical
attention (the “Great Meadow claims”). Plaintiff names as
defendants the four John Doe correction officers he alleges
assaulted him, and the one John Doe doctor he alleges denied
him care.
By order dated October 16, 2020, the Court granted Plaintiff's
request to proceed without prepayment of fees, that is, in
forma pauperis. 1
1 Prisoners are not exempt from paying the full filing
fee even when they have been granted permission
to proceed in forma pauperis. See 28 U.S.C. §
1915(b)(1).
For the reasons set forth below, the Court severs the Great
Meadow claims and transfers those claims to the United
States District Court for the Northern District of New York.
The Downstate claims will remain in this District.
STANDARD OF REVIEW
The Prison Litigation Reform Act requires that federal courts
screen complaints brought by prisoners who seek relief
against a governmental entity or an officer or employee of a
governmental entity. See 28 U.S.C. § 1915A(a). The Court
must dismiss a prisoner's in forma pauperis complaint, or any
portion of the complaint, that is frivolous or malicious, 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. §§ 1915(e)(2)(B), 1915A(b); see Abbas v.
Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The Court must
also dismiss a complaint if the court lacks subject matter
jurisdiction. See Fed. R. Civ. P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the
Court is obliged to construe pro se pleadings liberally, Harris
v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them
to raise the “strongest [claims] that they suggest,” Triestman
v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)
(internal quotation marks and citations omitted) (emphasis in
original). But the “special solicitude” in pro se cases, id. at
475 (citation omitted), has its limits – to state a claim, pro se
pleadings still must comply with Rule 8 of the Federal Rules
of Civil Procedure, which requires a complaint to make a short
and plain statement showing that the pleader is entitled to
relief.
DISCUSSION
A. Severance of the Great Meadow claims
Rules 18 and 20 of the Federal Rules of Civil Procedure
govern joinder of claims and parties, respectively. Rule 18
permits a plaintiff to join as many claims as he has against a
particular defendant. See Fed. R. Civ. P. 18(a). By contrast,
under Rule 20, a plaintiff may not pursue unrelated claims
against multiple defendants. Deskovic v. City of Peekskill, 673
F. Supp. 2d 154, 167 (S.D.N.Y. 2009).
Rule 20(a)(2) permits a plaintiff to join multiple defendants
in one action if: “(A) any right to relief is asserted against
them jointly, severally, or in the alternative arising out of
the same transaction, occurrence, or series of transactions or
occurrences; and (B) any question of law or fact common
to all defendants will arise in the action.” Id. Although
courts have interpreted Rule 20(a) liberally to allow related
claims to be tried within a single proceeding, Barr Rubber
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Products Co. v. Sun Rubber Co., 425 F.2d 1114, 1126-27
(2d Cir. 1970), “the mere allegation that Plaintiff was injured
by all Defendants is not sufficient to join unrelated parties
as defendants in the same lawsuit pursuant to Rule 20(a),”
Deskovic, 673 F. Supp. 2d at 167.
*2 Rule 21 of the Federal Rules of Civil Procedure provides
that “on its own, the court may at any time, on just terms,
add or drop a party. The court may also sever any claim
against a party.” Id. In determining whether to sever a claim,
the court considers “the two requirements of Rule 20 and
additional factors, including (1) whether severance will serve
judicial economy; (2) whether prejudice to the parties would
be caused by severance; and (3) whether the claims involve
different witnesses and evidence.” Kehr v. Yamaha Motor
Corp., 596 F. Supp. 2d 821, 826 (S.D.N.Y. 2008) (relying on
Laureano v. Goord, No. 06-CV-7845, 2007 WL 2826649, at
*8 (S.D.N.Y. Aug. 31, 2007)). Put another way, courts “look
to the logical relationship between the claims and determine
‘whether the essential facts of the various claims are so
logically connected that considerations of judicial economy
and fairness dictate that all the issues be resolved in one
lawsuit.’ ” Kalie v. Bank of Am. Corp., No. 12-CV-9192
(PAE), 2013 WL 4044951, at *3 (S.D.N.Y. Aug. 9, 2013)
(quoting United States v. Aquavella, 615 F.2d 12, 22 (2d Cir.
1979)).
Joinder of Plaintiff's claims against the Downstate Defendants
with his claims against the doctor at Great Meadow does
not comport with Rule 20(a) because the allegations involve
different defendants and separate events occurring at different
facilities. Thus, the Downstate claims are not logically
connected to the Great Meadow claims. See, e.g., Smith v.
Goord, No. 04-CV-6432, 2006 WL 2850597, at *3 (W.D.N.Y.
Sep. 22, 2006) (disallowing joinder of claims against
defendants at different correctional facilities where there was
no suggestion that original defendants were involved in the
actions taken against plaintiff in a different facility more
than one year later); Webb v. Maldanado, No. 3:13-CV-144
(RNC), 2013 WL 3243135, at *3 (D. Conn. June 26, 2013)
(“Unrelated claims against different defendants belong in
different suits ... to prevent the sort of morass” created by a
complaint with more than twenty defendants and countless
unrelated claims.”) (quotation and citation omitted).
For these reasons, the Court concludes that it is appropriate to
sever the Downstate claims from the Great Meadow.
B. Transfer of the Great Meadow Claims
When a court orders the severance of claims, it creates two or
more separate “actions,” and the court may transfer one action
while retaining jurisdiction of another. Wyndham Assoc. v.
Bintliff, 398 F.2d 614, 618 (2d Cir. 1968).
Under the general venue provision, a civil action may be
brought in:
(1) a judicial district in which any
defendant resides, if all defendants
are residents of the State in which
the district is located; (2) a judicial
district in which a substantial part of
the events or omissions giving rise
to the claim occurred ...; or (3) if
there is no district in which an action
may otherwise be brought as provided
in this section, any judicial district
in which any defendant is subject to
the court's personal jurisdiction with
respect to such action.
28 U.S.C. § 1391(b). For venue purposes, a “natural person”
resides in the district where the person is domiciled. 28 U.S.C.
§ 1391(c)(1).
The events giving rise to the Great Meadow claims occurred
in Washington County, which is located in the Northern
District of New York. See 28 U.S.C. § 112(a). The complaint
does not suggest that the Great Meadow doctor resides in
this District. Thus, venue for Plaintiff's Great Meadow claims
does not appear to be proper in this District under § 1391(b)
(1) or (2).
Even if venue were proper here, however, the Court
may transfer claims “[f]or the convenience of the parties
and witnesses, in the interest of justice.” 28 U.S.C. §
1404(a). “District courts have broad discretion in making
determinations of convenience under Section 1404(a) and
notions of convenience and fairness are considered on a case-
by-case basis.” D.H. Blair & Co. v. Gottdiener, 462 F.3d 95,
106 (2d Cir. 2006). Moreover, courts may transfer cases on
their own initiative. See Bank of Am., N.A. v. Wilmington
Trust FSB, 943 F. Supp. 2d 417, 426-427 (S.D.N.Y. 2013)
(“Courts have an independent institutional concern to see to
it that the burdens of litigation that is unrelated to the forum
that a party chooses are not imposed unreasonably on jurors
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and judges who have enough to do in determining cases that
are appropriately before them. The power of district courts to
transfer cases under Section 1404(a) sua sponte therefore is
well established.” (quoting Cento v. Pearl Arts & Craft Supply
Inc., No. 03-CV-2424, 2003 WL 1960595, at *1 (S.D.N.Y.
Apr. 24, 2003))); see also Lead Indus. Ass'n. Inc. v. OSHA.,
610 F.2d 70, 79 (2d Cir. 1979) (noting that “broad language
of 28 U.S.C. § 1404(a) would seem to permit a court to order
transfer sua sponte”).
*3 In determining whether transfer is appropriate, courts
consider the following factors: (1) the convenience of
witnesses; (2) the convenience of the parties; (3) the locus
of operative facts; (4) the availability of process to compel
the attendance of the unwilling witnesses; (5) the location of
relevant documents and the relative ease of access to sources
of proof; (6) the relative means of the parties; (7) the forum's
familiarity with the governing law; (8) the weight accorded to
the plaintiff's choice of forum; (9) trial efficiency; and (10) the
interest of justice, based on the totality of circumstances. Keitt
v. N.Y. City, 882 F. Supp. 2d 412, 459-60 (S.D.N.Y. 2011); see
also N.Y. Marine and Gen. Ins. Co. v. LaFarge No. Am., Inc.,
599 F.3d 102, 112 (2d Cir. 2010) (setting forth similar factors).
A plaintiff's choice of forum is accorded less deference where
the plaintiff does not reside in the chosen forum and the
operative events did not occur there. See Iragorri v. United
Tech. Corp., 274 F.3d 65, 72 (2d Cir. 2001).
Under § 1404(a), transfer of the Great Meadow claims
appears to be appropriate in this case because the events
underlying these claims occurred in a county that falls within
the Northern District of New York, see 28 U.S.C. § 112(a),
and venue is therefore proper in the Northern District of New
York. See 28 U.S.C. § 1391(b). Based on the totality of the
circumstances, the Court concludes that it is in the interest
of justice to transfer the Great Meadow claims to the United
States District Court for the Northern District of New York.
28 U.S.C. § 1404(a).
C. Valentin Order
Under Valentin v. Dinkins, a pro se litigant is entitled to
assistance from the district court in identifying a defendant.
121 F.3d 72, 76 (2d Cir. 1997). In the complaint, Plaintiff
supplies sufficient information to permit the New York State
Attorney General to identify the four John Doe defendants
who Plaintiff alleges assaulted him at Downstate. It is
therefore ordered that the Attorney General, who is the
attorney for and agent of the New York State Department of
Corrections and Community Supervision, must ascertain the
identity and badge number of each John Doe whom Plaintiff
seeks to sue here and the address where the defendant may be
served. The Attorney General must provide this information
to Plaintiff and the Court within sixty days of the date of this
order.
Within thirty days of receiving this information, Plaintiff must
file an amended complaint naming the John Doe defendants.
The amended complaint will replace, not supplement, the
original complaint. An amended complaint form that Plaintiff
should complete after receiving this information is attached to
this order. Once Plaintiff has filed an amended complaint, the
Court will screen the amended complaint and, if necessary,
issue an order directing the Clerk of Court to complete the
USM-285 forms with the addresses for the named John Doe
Defendants and deliver to the U.S. Marshals Service all
documents necessary to effect service.
D. Rule 33.2
Local Civil Rule 33.2, which requires defendants in certain
types of prisoner cases to respond to specific, court-ordered
discovery requests, applies to this action. Those discovery
requests are available on the Court's website under “Forms”
and are titled “Plaintiff's Local Civil Rule 33.2 Interrogatories
and Requests for Production of Documents.” Within 120 days
of service of the complaint, Defendants must serve responses
to these standard discovery requests. In their responses,
Defendants must quote each request verbatim. 2
2 If Plaintiff would like copies of these discovery
requests before receiving the responses and does
not have access to the website, Plaintiff may
request them from the Pro Se Intake Unit.
CONCLUSION
The Court certifies under 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. Cf. Coppedge v. United States, 369 U.S. 438,
444-45 (1962) (holding that an appellant demonstrates good
faith when he seeks review of a nonfrivolous issue).
SO ORDERED.
Attachment
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Clay v. Doe, Not Reported in Fed. Supp. (2020)
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All Citations
Not Reported in Fed. Supp., 2020 WL 6151436
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Clay v. Doe
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 7:20-CV-07692
Clay v. Doe et al
— S.D.N.Y. Sep. 17, 2020 Docket
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Clay v. Doe
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (1)
1. Clay v. Doe
2020 WL 6151436 , S.D.N.Y. , Oct. 20, 2020
Related References (1)
2. Clay v. Doe
2021 WL 6051729 , S.D.N.Y. , Dec. 20, 2021
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 496 of 529

Smith v. Goord, Not Reported in F.Supp.2d (2006)
2006 WL 2850597
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2006 WL 2850597
Only the Westlaw citation is currently available.
United States District Court,
W.D. New York.
Andre SMITH, Plaintiff,
v.
Glenn GOORD, et al., Defendants.
No. 04-CV-6432CJS.
|
Sept. 22, 2006.
Attorneys and Law Firms
Andre Smith, Comstock, NY, pro se.
Tamara B. Christie, NYS Office of the Attorney General,
Rochester, NY, for Defendants.
REPORT & RECOMMENDATION
MARIAN W. PAYSON, Magistrate Judge.
*1 On September 8, 2004, plaintiff Andre Smith filed a pro
se complaint pursuant to 42 U.S.C. § 1983, alleging that his
constitutional rights had been violated because he was not
permitted to participate in Muslim religious services while
incarcerated at the Lakeview Correctional Facility. (Docket
# 1). Currently pending is Smith's motion for leave to file
a supplemental complaint, alleging, inter alia, that after he
was transferred to the Southport Correctional Facility, certain
defendants at that facility assaulted him in retaliation for
his filing of the original complaint. (Docket # 39). Also
before the Court is a separate motion by Smith for leave
to file a second amended complaint. In that motion, Smith
seeks to assert additional claims relating to violations of his
constitutional rights allegedly committed while he was still at
the Lakeview Correctional Facility by the original defendants,
as well as certain newly-identified defendants. (Docket #
57). Defendants generally oppose both of Smith's motions. 1
(Docket # 60).
1 As described below, with respect to Smith's motion
for leave to file a second amended complaint,
defendants do not oppose the assertion of an Eighth
Amendment claim against defendant Thomas
Whelan. Their opposition papers are silent as to
Smith's request to add claims under the First
Amendment and the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”).
DISCUSSION
I. Standard of Review
Rule 15(a) of the Federal Rules of Civil Procedure provides
that once the time for amending a pleading as of right has
expired, a party may request leave of the court to amend,
which “shall be freely given when justice so requires.”
Fed.R.Civ.P. 15(a). Similarly, Rule 15(d) permits the Court,
upon motion of a party, to allow the filing of a supplemental
pleading “setting forth transactions or occurrences or events
which have happened since the date of the pleading sought
to be supplemented.” Fed.R.Civ.P. 15(d). Supplemental relief
“may include the addition of new defendants and new claims,
if adequately related to the originally stated claims.” McLean
v. Scully, 1991 WL 274327, *1 (S.D.N.Y.1991). See Carter
v. Atruz, 1998 WL 782022, *2 (S.D.N.Y.1998) (purpose of
Rule 15(a) is to permit assertion of matters that were “either
overlooked or unknown” at time of original pleading; purpose
of Rule 15(d) is to enable a party to set forth in a supplemental
pleading events that “happened since the date of original
pleading”).
If the supplemental claim is filed before the applicable statute
of limitations has run, as it was in this case, the standard of
review for both Rule 15(a) and Rule 15(d) is the same. See
Gittens v. Sullivan, 670 F.Supp. 119, 123-24 (S.D.N.Y.1987)
(“The standard for the exercise of discretion on a motion to
supplement the pleading is the same as that for disposition of
a motion to amend”), aff'd, 848 F.2d 389 (2d Cir.1988). Thus,
under either rule, if the underlying facts or circumstances
relied upon by the party seeking leave to amend may be a
proper subject of relief, the party should be allowed to test the
claim on its merits. See United States ex rel. Maritime Admin.
v. Continental Illinois Nat. Bank and Trust Co. of Chicago,
889 F.2d 1248, 1254 (2d Cir.1989). “In the absence of any
apparent or declared reason-such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of
the amendment, futility of amendment, etc.-the leave sought
should, as the rules require, be ‘freely given.’ “ Foman v.
Davis, 371 U.S. 178, 182 (1962).
*2 While the court retains discretion to grant or deny leave
to amend under Rule 15(a), “[the] outright refusal to grant
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the leave without any justifying reason appearing for the
denial is not an exercise of discretion; it is merely abuse of
that discretion and inconsistent with the spirit of the Federal
Rules.” Id. at 182; Ruffolo v. Oppenheimer & Co., 987 F.2d
129, 131 (2d Cir.1993); Evans v. Syracuse City Sch. Dist., 704
F.2d 44, 46 (2d Cir.1983).
Despite the ordinarily lenient standard imposed, if the
amendment proposed by the moving party is futile, “it
is not an abuse of discretion to deny leave to amend.”
Ruffolo v. Oppenheimer & Co., 987 F.2d at 131. The
determination whether a proposed amendment is futile is
made under the same standard as that used to determine
whether a claim would be subject to a motion to dismiss. See
Hampton Bays Connections, Inc. v. Duffy, 212 F.R.D. 119, 123
(E.D.N.Y.2003) (citing A.V. by Versace, Inc. v. Gianni Versace
S.p.A., 160 F.Supp.2d 657, 666 (S.D.N.Y.2001)). Thus, the
court “must view the claim in the light most favorable to
the moving party and determine whether there is a colorable
claim for relief.” Santiago v. Steinhart, 1993 WL 410402, *2
(S.D.N.Y.1993).
In addition, in considering whether to permit the inclusion of
additional parties, Rule 20(a) of the Federal Rules of Civil
Procedure provides:
All persons ... may be joined in one
action as defendants if there is asserted
against them jointly, severally, or in
the alternative, any right to relief in
respect of or arising out of the same
transaction, occurrence, or series of
transactions or occurrences and if any
question of law or fact common to all
defendants will arise in the action.
Fed.R.Civ.P. 20(a). Courts have interpreted the requirements
of Rule 20(a) liberally so as to promote judicial economy and
to allow related claims to be tried within a single proceeding.
See, e.g., Barr Rubber Products Co. v. Sun Rubber Co., 425
F.2d 1114, 1127 (2d Cir.) (Rule 20 “specifically vests in the
district court the discretionary power to make such orders as
may be required to prevent delay or prejudice”), cert. denied,
400 U.S. 878 (1970); Liegey v. Ellen Figg, Inc., 2003 WL
21361724, *3 (S.D.N.Y.2003) ( “requirements of Rule 20(a)
should be interpreted liberally”); Kovian v. Fulton County
Nat. Bank and Trust Co., 1990 WL 36809, *9 (N.D.N.Y.1990)
(“there is no rigid rule as to what constitutes the same
series of transactions or occurrences”); City of New York v.
Joseph L. Balkan, Inc., 656 F.Supp. 536, 549 (E.D.N.Y.1987)
(requirements of Rule 20 are to be “liberally interpreted”)
(citations omitted).
II. Smith's Motion to Supplement his Complaint
Smith's original complaint was filed in September 2004
and alleged that defendants at the Lakeview Correctional
Facility denied him the right to practice the Muslim religion
in violation of the First Amendment. (Docket # 1). In his
motion to supplement his complaint, Smith seeks to include
claims arising from events at a different correctional facility,
which Smith contends were committed in retaliation for his
filing of the original complaint. (Docket # 39). The proposed
supplemental claims are based primarily upon Smith's
allegations that Correctional Officers Augustine, Gilbert and
Hable assaulted him on July 5, 2005, approximately one
year after the filing of the original complaint. According to
Smith, prior to and immediately following the assault, Officer
Augustine taunted him with derogatory statements about
his religion and his previously-filed lawsuit. The complaint
further alleges that Augustine had learned about the lawsuit
approximately two months earlier when he escorted Smith to
a telephone conference with the court concerning the case.
(Docket # 39).
*3 As stated above, the purpose of a supplemental complaint
is to allow the inclusion of new defendants and new
claims arising since the date of the original pleading, if the
new claims are “adequately related to the original claims.”
McLean v. Scully, 1991 WL 274327 at * 1. Here, the
original complaint relates principally to the allegation that all
Muslim prisoners at the Lakeview Correctional Facility are
denied the right to practice their religion, while the proposed
supplemental claims focus on acts allegedly targeted at and
perpetrated on Smith personally, namely, the July 5, 2005
assault that is at the heart of the claims. None of the defendants
named in the original complaint (from the Lakeview facility)
are alleged to have been involved in the assault committed
at the Southport facility. The only defendant common to
both the original and supplemental claims is Commissioner
Goord, who Smith fails to allege was personally involved
in the alleged retaliatory assault. See Colon v. Coughlin, 58
F.3d 865, 873 (2d Cir.1995) (in § 1983 cases, plaintiff must
demonstrate a particular defendant's personal involvement in
the alleged constitutional deprivation); Al-Jundi v. Estate of
Rockefeller, 885 F.2d 1060, 1065 (2d Cir.1989) (doctrine of
respondeat superior does not apply in § 1983 cases).
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The only connection between the original complaint and
the proposed supplemental claims are Smith's allegations
that the events giving rise to the supplemental claims were
committed in retaliation for his initiation of this lawsuit.
Those allegations are indeed quite specific and appear to
adequately state a claim for relief. See Colon v. Coughlin,
58 F.3d at 872. The question before this Court, however, is
whether the purpose of Rule 20 and judicial economy would
be served by combining the original and the supplemental
claims into a single proceeding. I conclude that they would
not.
Other than Commissioner Goord, there is no overlap between
the named defendants in both complaints; the events at issue
in both complaints are separated by more than a year; and,
there is no suggestion that the original defendants were
involved in the alleged retaliatory actions taken against Smith
in a different facility over a year later. Indeed, the allegations
are to the contrary. It appears that the events at issue in
the proposed supplemental complaint began when one of
the proposed defendants learned about Smith's lawsuit when
he escorted him to a telephone conference with the court
concerning that suit. Considering these allegations, I find no
basis to conclude that any efficiencies would be gained by
consolidating these claims for trial. Nor do I find that Smith's
right to relief based upon the allegations in the supplemental
complaint “aris[es] out of the same transaction, occurrence,
or series of transactions or occurrences” at issue in the
original complaint or that it gives rise to “any question of
law or fact common to [the] defendants” in both complaints.
See Fed.R.Civ.P. 20(a). See Davis v. State of New York,
1999 WL 1390247, *5 (W.D.N.Y.1999) (denying motion
to supplement complaint because “[p]laintiff's conclusory
allegations concerning the conduct of the defendants are not
sufficient to show a retaliatory motive”); Klos v. Haskell,
835 F.Supp. 710, 716 (W.D.N.Y.1993) (denying motion
to supplement complaint to include claims occurring at
subsequent correctional facility; “[a]lthough the proposed
supplemental complaint contains allegations of retaliation, he
fails to connect these actions with the named defendants [in
the original complaint]”), aff'd, 48 F.3d 81 (2d Cir.1995).
*4 Accordingly, it is my recommendation that Smith's
motion for leave to file a supplemental complaint be
denied. If Smith wishes to file claims relating to the
alleged constitutional violations committed at the Southport
Correctional Facility, he may do so by filing a separate
complaint.
III. Smith's Motion to Amend his Complaint
Smith's second motion seeks leave to amend his complaint
to include proposed defendants Chaplain W. Werbicki and
Deputy Superintendent of the Lakeview Correctional Facility
Tim F. Sheehan, and to add eight additional causes of
action against the new and existing defendants. (Docket #
57). Defendants oppose the motion as to several of the
proposed amended claims and also oppose the inclusion
of Commissioner Goord in any of the proposed claims. 2
According to defendants, Smith has failed to allege any
personal involvement by Goord and thus may not assert the
proposed new Section 1983 claims against him. (Docket #
60).
2 Defendants' opposition papers do not address
Smith's first three proposed amended claims
relating to claims under the Religious Land Use and
Institutionalized Persons Act and the Establishment
Clause and the Free Exercise Clause of the First
Amendment. (Docket # 60).
In Section 1983 cases, a plaintiff must demonstrate a
defendant's personal involvement in the alleged constitutional
deprivation. Colon, 58 F.3d at 873; Johnson v. Newburgh
Enlarged Sch. Dist ., 239 F.3d 246, 254 (2d Cir.2001); see
also Al-Jundi v. Estate of Rockefeller, 885 F.2d at 1065
(doctrine of respondeat superior does not apply in Section
1983 cases). Personal involvement of a supervisory official
may be demonstrated through evidence that: “(1) the [official]
participated directly in the alleged constitutional violation, (2)
the [official], after being informed of the violation through a
report or appeal, failed to remedy the wrong, (3) the [official]
created a policy or custom under which unconstitutional
practices occurred, or allowed the continuance of such a
policy or custom, (4) the [official] was grossly negligent in
supervising subordinates who committed the wrongful acts,
or (5) the [official] exhibited deliberate indifference to the
rights of [others] by failing to act on information indicating
that unconstitutional acts were occurring.” Colon, 58 F.3d at
873.
Applying this law, I recommend, as set forth below, that
certain claims against Commissioner Goord should proceed,
while others should be foreclosed.
1. RLUIPA Claim: The first proposed claim Smith
seeks to assert through his amended complaint is
based upon the Religious Land Use and Institutionalized
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Persons Act (“RLUIPA”). Smith alleges that previously-
named defendants Superintendent Mosciki, Drill Instructor
Whelan and Counselor Allessi and proposed defendants
Commissioner Goord, Deputy Superintendent Sheehan and
Chaplin Werbicki “placed a substantial burden on his
religious exercise for no compelling reason.” (Docket # 57 at
¶ 38).
The RLUIPA provides, inter alia, that “[n]o government shall
impose a substantial burden on the religious exercise of a
person residing in or confined to an institution, ... even if the
burden results from a rule of general applicability, unless the
government demonstrates that imposition of the burden on
that person (1) is in furtherance of a compelling governmental
interest; and (2) is the least restrictive means of furthering that
compelling governmental interest.” 42 U.S.C. § 2000cc-1(a).
*5 Smith's original complaint alleges that DOCS personnel
imposed substantial burdens upon Lakeview Correctional
Facility inmates' exercise of the Muslim religion. (Docket
# 1). In his proposed amended complaint, Smith raises
additional factual allegations of religious discrimination and
seeks to base a RLUIPA claim upon those and the original
allegations. Smith's proposed RLUIPA claim alleges a proper
subject of relief and may proceed. Further, pursuant to Federal
Rule of Civil Procedure 20, I find that proposed defendants
Goord, Sheehan and Werbicki are proper parties to this action.
See 41 U.S.C. § 2000cc-5(4). Smith's motion to amend to
include this claim should therefore be granted.
2. First Amendment Establishment Clause Claim: In his
second proposed claim, Smith asserts that Superintendent
Mosciki, Deputy Superintendent Sheehan, Drill Instructor
Whelan, Counselor Allessi and Chaplin Werbicki violated the
Establishment Clause of the First Amendment through their
religious proselytizing, which “had the effect of advancing
the Catholic religion,” as well as through assaults and
intimidation. (Docket # 57 at ¶ 39).
The Establishment Clause provides that “Congress shall
make no law respecting an establishment of religion....” U.S.
Const. amend. I. According to the Supreme Court, this clause
guarantees at a minimum that the government “may not
coerce anyone to support or participate in religion or its
exercise, or otherwise act in a way which ‘establishes a [state]
religion or religious faith, or tends to do so.’ “ Lee v. Weisman,
505 U.S. 577, 587 (1992) (quoting Lynch v. Donnelly, 465
U.S. 668, 678 (1984)).
As with the previous claim, Smith's original and proposed
amended complaints sufficiently allege facts that would,
if proven, state a claim for relief. Accordingly, Smith's
motion to amend his complaint to include a First Amendment
Establishment Clause claim against the existing and newly-
identified defendants should be granted.
3. First Amendment Free Exercise Claim: Like the second
claim, Smith's third proposed claim is based upon the First
Amendment. In this claim, Smith alleges that Superintendent
Mosciki, Deputy Superintendent Sheehan, Drill Instructor
Whelan, Counselor Allessi and Chaplin Werbicki violated the
Free Exercise Clause of the First Amendment by interfering
with Muslim religious beliefs and practices. (Docket # 57 at
¶ 40). That clause forbids Congress from making any laws
prohibiting “the free exercise” of religion. U.S. Const. amend.
I.
The Free Exercise Clause is an “unflinching pledge to allow
our citizenry to explore ... religious beliefs in accordance
with the dictates of their conscience.” Jackson v. Mann, 196
F.3d 316, 320 (2d Cir.1999) (quoting Patrick v. LeFevre,
745 F.2d 153, 157 (2d Cir.1984)). Prisoners retain their right
to religious freedom even during their incarceration, and
therefore they are entitled to reasonable accommodation of
their religious beliefs. Id. (citing Kahane v. Carlson, 527 F.2d
492, 495 (2d Cir.1975)).
*6 I find that Smith's proposed Free Exercise Clause claim
is properly asserted here, and his motion to amend his
complaint to include such claim against the existing and
newly-identified defendants should be granted.
4. First Amendment Retaliation Claim: In his fourth
proposed claim, Smith asserts a First Amendment retaliation
claim against original defendants Allessi and Whelan for
alleged retaliatory actions against him based upon his
religious beliefs. (Docket # 57 at ¶ 41). To properly assert a
First Amendment retaliation claim, a prisoner must show that:
“(1) his actions were protected by the Constitution or federal
law; and (2) ‘the defendant's conduct complained of was in
response to that protected activity.’ “ Friedl v. City of New
York, 210 F.3d 79, 85 (2d Cir.2000) (quoting Posr v. Court
Officer Shield # 207, 180 F.3d 409, 418 (2d Cir.1999)).
In his proposed amended complaint, Smith alleges that
Whelan assaulted him when he was praying. In my
opinion, that allegation is sufficient to state a claim for
retaliation. As to Counselor Allessi, Smith alleges that Allessi
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made derogatory comments about Smith's lawsuit when
arrangements were being made for Smith to participate in a
conference call with the presiding judge on that case. The
complaint further alleges that Allessi refused to allow Smith
to participate in that conference call. (Docket # 57 at ¶ 42).
These facts, assuming their truth, are sufficient to state a
claim against Allessi for retaliation. Thus, I recommend that
Smith be permitted to amend his complaint to add claims for
retaliation against defendants Allessi and Whelan.
5. Sixth Amendment Right to Counsel Claim: Smith's
fifth proposed claim alleges that Allessi violated his Sixth
Amendment right to counsel based upon Allessi's conduct
in apparently preventing Smith from participating in the
telephone conference with the presiding judge. According
to Smith, Allessi refused to allow him to participate in the
telephone conference “in retaliation of plaintiff's religious
beliefs and pursuit of a lawsuit.” (Docket # 57 at ¶ 42).
The Sixth Amendment to the United States Constitution
guarantees:
In all criminal prosecutions, the
accused shall enjoy the right to
a speedy and public trial, by an
impartial jury of the State and district
wherein the crime shall have been
committed, which district shall have
been previously ascertained by law,
and to be informed of the nature
and cause of the accusation; to be
confronted with the witnesses against
him; to have compulsory process for
obtaining witnesses in his favor, and to
have the Assistance of Counsel for his
defense.
U.S. Const. amend VI. As this Amendment clearly states,
the right to counsel applies only to criminal prosecutions.
See Texas v. Cobb, 532 U.S. 162, 173 n. 3 (2001) (“the text
of the Sixth Amendment confines its scope to ‘all criminal
prosecutions' ”). The legal matter that Smith was scheduled
to discuss during the January 5, 2004 telephone conference
was a civil action. Accordingly, Smith's allegations, even if
true, do not support a Sixth Amendment violation. I therefore
recommend that his motion to amend his complaint to include
a right to counsel claim against defendant Allessi be denied.
*7 6. Eighth Amendment Cruel and Unusual Punishment
Claim: Smith alleges that Goord, Moscicki, Sheehan,
Whelan, Allessi and Werbicki violated his Eighth
Amendment right to be free from cruel and unusual
punishment. (Docket # 57). According to Smith, Whelan
“assaulted and intimidated [him] every time he caught
[Smith] making silent (prayer).” (Docket # 57 at ¶¶ 5,
16). Smith further asserts that the “religious proselytizing
activities and deliberate indifference” of the remaining
referenced defendants towards Smith and other Muslim
inmates was “malicious and sadistic in nature.” (Docket # 57
at p. 23, ¶ 6).
The Eighth Amendment provides protection against the
infliction of cruel and unusual punishment, thereby
forbidding conditions involving the “wanton and unnecessary
infliction of pain” or that are “grossly disproportionate to the
severity of the crime warranting imprisonment.” Rhodes v.
Chapman, 452 U.S. 337, 347 (1981). In order to establish that
the conditions of his confinement amount to a constitutional
violation, a prisoner must satisfy both an objective component
and a subjective component. See Jolly v. Coughlin, 76 F.3d
468, 480 (2d Cir.1996). The objective component requires
that the conditions of confinement result in “unquestioned
and serious deprivation of basic human needs” or “deprive
inmates of the minimal civilized measure of life's necessities.”
Rhodes v. Chapman, 452 U.S. at 347. “Ultimately, to
establish the objective element of an Eighth Amendment
claim, a prisoner must prove that the conditions of his
confinement violate contemporary standards of decency.”
Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir.2002). The
subjective component requires a showing that the defendant
acted with a “sufficiently culpable state of mind.” Farmer
v. Brennan, 511 U.S. 825, 834 (1994). The state of mind
requirement is one of “deliberate indifference to inmate health
or safety.” Id.
In this matter, defendants concede that Smith's accusations
that Whelan assaulted Smith when he was engaged in silent
prayer are sufficient to allege an Eighth Amendment claim
as to defendant Whelan. Smith's motion to amend should
be granted to that extent. Smith's allegations of “religious
proselytizing” by the other defendants, however, do not
sufficiently allege facts that would constitute a serious
deprivation of a basic need or violate contemporary standards
of decency. See Rhodes, 452 U.S. at 347; Phelps v. Kapnolas,
308 F.3d at 185. Nor do the allegations against Allessi that
she refused to allow Smith to participate in a court conference
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in retaliation for his religious beliefs amount to an Eighth
Amendment violation. I therefore recommend that the motion
be granted as to defendant Whelan and denied as to the
remaining defendants.
7. Fourteenth Amendment Due Process Claim: Similar to
the above claim, Smith also alleges that Goord, Moscicki,
Sheehan, Whelan, Werbicki and Allessi, through their
“religious proselytizing activities and deliberate indifference
towards plaintiff and other Muslims,” violated his Fourteenth
Amendment right to due process. (Docket # 57 at ¶ 44). I
recommend that this claim not be permitted to proceed.
*8 “Where a particular Amendment ‘provides an explicit
textual source of constitutional protection’ against a particular
sort of government behavior, ‘that Amendment, not the more
generalized notion of ‘substantive due process,’ must be the
guide for analyzing these claims.' “ Albright v. Oliver, 510
U.S. 266, 273 (1994) (quoting Graham v. Connor, 490 U.S.
386, 395 (1989)). Thus, “if a constitutional claim is covered
by a specific constitutional provision, such as the Fourth or
Eighth Amendment, the claim must be analyzed under the
standard appropriate to that specific provision, not under the
rubric of substantive due process.” United States v. Lanier,
520 U.S. 259, 272 n. 7 (1997) (citing Graham v. Connor, 490
U.S. at 394).
Here, as addressed in the preceding section, Smith has been
permitted to proceed on his First Amendment claims against
Moscicki, Sheehan, Whelan, Allessi and Werbicki and on
his Eighth Amendment claim against Whelan. Applying the
Supreme Court's holdings in Albright and Graham, I find
that Smith's proposed due process claim is misplaced, and his
amendment to include such claim should be denied.
8. Fourteenth Amendment Equal Protection Claim: In
the final proposed claim, Smith alleges that Goord,
Moscicki, Sheehan, Whelan, Werbicki and Allessi violated
his Fourteenth Amendment equal protection rights because
they failed to treat his “religious exercise in a neutral manner
in comparison with inmates of the Catholic religion.” (Docket
# 57 at ¶ 45).
The Equal Protection Clause of the Fourteenth Amendment
provides that no State shall “deny to any person within its
jurisdiction the equal protection of the laws.” Essentially,
this clause directs that all similarly-situated persons must
be treated alike. Plyler v. Doe, 457 U.S. 202, 216 (1982).
To establish an equal protection violation, a plaintiff
must demonstrate “purposeful discrimination directed at an
identifiable or suspect class.” Giano v. Senkowski, 54 F.3d
1050, 1057 (2d Cir.1995) (citing McCleskey v, Kemp, 481
U.S. 279, 292 (1987); Kadrmas v. Dickinson Pub. Schs., 487
U.S. 450, 457-58 (1988)).
In this matter, throughout his original and proposed amended
complaint, Smith alleges that defendants have discriminated
against him and other Muslims and denied them the right
afforded to prisoners of other faiths to freely exercise their
religion. (Docket # # 1, 57). Smith has properly alleged
an equal protection claim, and his motion to amend to
include such claim against the original and newly-identified
defendants should be granted.
CONCLUSION
For the foregoing reasons, it is the recommendation of this
Court that Smith's motion for leave to file a supplemental
complaint (Docket # 39) be DENIED and that his motion for
leave to file a second amended complaint (Docket # 57) be
GRANTED IN PART and DENIED IN PART.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
*9 ORDERED, that this Report and Recommendation be
filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation
must be filed with the Clerk of this Court within ten (10) days
after receipt of a copy of this Report and Recommendation
in accordance with the above statute, Fed.R.Civ.P. 72(b), 6(a)
and 6(e) and Local Rule 72.3(a)(3).
The district court will ordinarily refuse to consider on de novo
review arguments, case law and/or evidentiary material which
could have been, but was not, presented to the magistrate
judge in the first instance. See e.g. Paterson-Leitch Co., Inc.
v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985 (1st
Cir.1988).
Failure to file objections within the specified time or to
request an extension of such time waives the right to appeal
the District Court's Order. Thomas v. Arn, 474 U.S. 140
(1985); Small v. Secretary of Health and Human Services, 892
F.2d 15 (2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55
(2d Cir.1988).
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The parties are reminded that, pursuant to Rule 72.3(a)(3)
of the Local Rules for the Western District of New York,
“written objections shall specifically identify the portions
of the proposed findings and recommendations to which
objection is made and the basis for such objection and shall
be supported by legal authority.” Failure to comply with the
provisions of Rule 72.3(a)(3), or with the similar provisions
of Rule 72.3(a)(2) (concerning objections to a Magistrate
Judge's Decision and Order), may result in the District
Court's refusal to consider the objection .
Let the Clerk send a copy of this Order and a copy of the
Report and Recommendation to the attorneys for the Plaintiff
and the Defendant.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2006 WL 2850597
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Smith v. Goord
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Filings (1)
Title PDF Court Date Type
1. Docket 6:04cv06432
SMITH v. GOORD ET AL
— W.D.N.Y. Sep. 08, 2004 Docket
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Smith v. Goord
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History (4)
Direct History (2)
1. Smith v. Goord
2006 WL 2850597 , W.D.N.Y. , Sep. 22, 2006
Report and Recommendation Adopted by
2. Smith v. Goord
2007 WL 496371 , W.D.N.Y. , Feb. 12, 2007
Related References (2)
3. Smith v. Goord
2006 WL 4070305 , W.D.N.Y. , Dec. 07, 2006
4. Smith v. Goord
541 Fed.Appx. 133 , 2nd Cir.(N.Y.) , Nov. 15, 2013
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Smith v. Goord
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Smith v. Goord, Not Reported in F.Supp.2d (2007)
2007 WL 496371
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Wang v. Paterson, S.D.N.Y., December 18, 2008
2007 WL 496371
Only the Westlaw citation is currently available.
United States District Court,
W.D. New York.
Andre SMITH, Plaintiff
v.
Glenn GOORD, et al., Defendant.
No. 04-CV-6432.
|
Feb. 12, 2007.
Attorneys and Law Firms
Andre Smith, Auburn, NY, pro se.
Tamara B. Christie, NYS Office of the Attorney General,
Rochester, NY, for Defendant.
DECISION AND ORDER
CHARLES J. SIRAGUSA, United States District Judge.
*1 This is an action brought pursuant to 42 U.S.C. § 1983
in which the plaintiff, a prison inmate proceeding pro se,
contends that defendants violated his constitutional rights
by, inter alia, denying him Muslim religious services and
by physically assaulting him. Now before the Court are
plaintiff's Objections [# 65] to a Report and Recommendation
[# 64] by the Honorable Marian W. Payson, United States
Magistrate Judge, which denied plaintiff's motion [# 39] to
file a supplemental complaint, and granted in part and denied
in part plaintiff's application [# 57] to amend his complaint.
For the reasons that follow, plaintiff's objections are denied,
and Magistrate Judge Payson's Report and Recommendation
[# 64] is affirmed and adopted in all respects.
BACKGROUND
The facts of plaintiff's claims are set forth in the Report
and Recommendation and need not be repeated in their
entirety here. It is sufficient to note that plaintiff began
this lawsuit by alleging that certain officials with the New
York State Department of Correctional Services (“DOCS”)
and certain employees at Lakeview Correctional Facility
(“Lakeview”) violated his constitutional rights by assaulting
him and by failing to provide Muslim religious services at
Lakeview. Plaintiff now seeks to supplement that complaint
by alleging that, after he was transferred to Southport
Correctional Facility (“Southport”), approximately one year
after commencing this action, he was retaliated against by
corrections staff there. Additionally, plaintiff seeks to amend
his complaint to add new claims (and new defendants)
relating to the alleged assaults and denial of Muslim religious
services at Lakeview.
The instant objections involve only that portion of the Report
and Recommendation which denied plaintiff's application to
supplement his complaint by adding the Southport claims. As
to that ruling, the Magistrate Judge denied the application,
finding that “judicial economy would [not] be served by
combining the original and supplemental claims into a single
proceeding.” (Report and Recommendation [# 64] p. 6). The
Magistrate Judge further stated, in relevant part:
Other than Commissioner Goord, there is no overlap
between the named defendants in both complaints; the
events at issue in both complaints are separated by more
than a year; and, there is no suggestion that the original
defendants were involved in the alleged retaliatory actions
taken against Smith in a different facility over a year later.
Indeed, the allegations are to the contrary.
* * *
Considering these allegations, I find no basis to conclude
that any efficiencies would be gained by consolidating
these claims for trial. Nor do I find that Smith's right
to relief based upon the allegations in the supplemental
complaint ‘aris[es] out of the same transaction, occurrence,
or series of transactions or occurences' at issue in the
original complaint or that it gives rise to ‘any question of
law or fact common to [the] defendants' in both complaints.
*2 (Report and Recommendation [# 64] p. 6) (citing
Fed.R.Civ.P. 20(a); Davis v. State of New York, 1999 WL
1390247 at *5 (W.D.N.Y.1999); Klos v. Haskell, 835 F.Supp.
710, 716 (W.D.N.Y.1993) aff'd 48 F.3d 81 (2d Cir.1995)).
In his objections, plaintiff contends that this ruling was
erroneous because both his original complaint and his
proposed supplemental complaint include allegations against
Glenn Goord, former Commissioner of DOCS:
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[Plaintiff] successfully connects the actions of a named
defendant (Goord) in the original complaint with the
actions of a named defendant (Goord) in the supplemental
complaint. The plaintiff proves that the supplemental
complaint gives rise to a question of law and fact common
to a defendant (Goord) in both complaints.
* * *
These complaints are adequately related, because they
show that defendant Commissioner Goord has tacitly
authorized the practice of mistreating Muslim prisoners
and their religion, based on the fact that he has routinely
and intentionally failed to act on prior prisoner complaints
regarding the mistreatment of Muslim prisoners and their
right to practice their religion, which had the effect of
inviting the abuses and constitutional violations that the
plaintiff mentioned in the supplemental complaint....
(Pl. Objections [# 65] p. 3).
ANALYSIS
The general principles of law involved when a district court
is asked to rule upon objections to a decision by a magistrate
judge are well settled:
28 U.S.C. § 636(b)(1)(A) provides that “a judge may
designate a magistrate to hear and determine any pretrial
matter pending before the court,” except for certain
enumerated dispositive motions. See also Fed.R.Civ.P.
72(b) (referring to dispositive motions as those “dispositive
of a claim or defense of a party”). Although a magistrate
may hear dispositive pretrial motions, he may only
submit proposed findings of fact and recommendations for
disposition of the matter. The district court must make
de novo determinations as to those matters to which
the party has objected. § 636(b)(1)(B)-(C); Fed.R.Civ.P.
72(b). The court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by
the magistrate.” § 636(b)(1)(C); see also Fed.R.Civ.P.
72(b). A magistrate, however, may issue orders regarding
nondispositive pretrial matters. The district court reviews
such orders under the “clearly erroneous or contrary to law”
standard. § 636(b)(1)(A); Fed.R.Civ.P. 72(a).
Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525
(2d Cir.1990).
As for motions to amend pleadings, courts in this Circuit treat
such motions as nondispositive when reviewing a decision
by a magistrate judge to which an objection has been made.
See, e.g., Rubin v. Valicenti Advisory Services, Inc., No. 03-
CV-6201 L, 2007 WL 196680 at *2 (W.D.N.Y. Jan. 26,
2007) (“Although the Court of Appeals for the Second Circuit
has not ruled on whether a motion to amend a pleading
is properly classified as dispositive or nondispositive, ‘the
weight of authority within this Circuit classifies a motion to
amend a [pleading] as a non-dispositive pre-trial motion, and
holds that a magistrate's order should be reviewed under the
‘clearly erroneous standard.’ ”) (quoting Palmer v. Monroe
County Sheriff, 378 F.Supp.2d 284, 289 (W.D.N.Y.2005)). A
finding is clearly erroneous if, “although there is evidence to
support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been
committed.” United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948).
*3 Rule 15(d) states, in relevant part, that “[u]pon motion
of a party the court may, upon reasonable notice and upon
such terms as are just, permit the party to serve a supplemental
pleading setting forth transactions or occurrences or events
which have happened since the date of the pleading sought
to be supplemented.” The standard for evaluating a motion to
supplement under Rule 15(d) is well settled:
An application for leave to file a
supplemental pleading is addressed
to the discretion of the court, and
permission should be freely granted
where such supplementation will
promote the economic and speedy
disposition of the controversy between
the parties, will not cause undue delay
or trial inconvenience, and will not
prejudice the rights of any other party.
Bornholdt v. Brady, 869 F.2d 57, 68 (2d Cir.1989) (citations
omitted).
In the instant case, plaintiff contends that the proposed
supplemental claims are sufficiently related to the original
claims, based primarily, if not exclusively, upon the fact
that Goord is a common defendant. However, the presence
of a common defendant is not, by itself, sufficient to
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Smith v. Goord, Not Reported in F.Supp.2d (2007)
2007 WL 496371
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
satisfy Rule 15(d). See, Albrecht v.. Long Island R.R.,
134 F.R.D. 40, 41 (E.D.N.Y.1991) (“Plaintiff asserts that
the two accidents are related since the alleged injuries,
medical experts, and defendant are the same. However,
these similarities are essentially superficial, and based on the
papers before the Court it is clear that the two accidents are
distinct and unrelated. In point of fact, they each occurred
at different stations, and apart from the common ownership
by defendant, plaintiff does not dispute that the stations
are separate and unrelated.”). Here, the Court agrees with
Magistrate Judge Payson's finding, that plaintiff's proposed
supplemental claims, involving events at Southport, are not
sufficiently related to the original claims, involving events at
Lakeview one year earlier, and that adding the new claims
would not promote the economical and speedy disposition
of the controversy. Consequently, the Court finds that the
Magistrate's ruling was not clearly erroneous, and moreover,
the Court would reach the same result applying a de novo
standard of review.
CONCLUSION
Plaintiff's objections [# 65] are denied, and Magistrate Judge
Payson's Report and Recommendation [# 64] is affirmed and
adopted in all respects.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2007 WL 496371
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 509 of 529

Smith v. Goord
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 6:04cv06432
SMITH v. GOORD ET AL
— W.D.N.Y. Sep. 08, 2004 Docket
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 510 of 529

Smith v. Goord
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
History (4)
Direct History (2)
1. Smith v. Goord
2006 WL 2850597 , W.D.N.Y. , Sep. 22, 2006
Report and Recommendation Adopted by
2. Smith v. Goord
2007 WL 496371 , W.D.N.Y. , Feb. 12, 2007
Related References (2)
3. Smith v. Goord
2006 WL 4070305 , W.D.N.Y. , Dec. 07, 2006
4. Smith v. Goord
541 Fed.Appx. 133 , 2nd Cir.(N.Y.) , Nov. 15, 2013
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 511 of 529

Smith v. Goord
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Webb v. Maldonaldo, Not Reported in F.Supp.2d (2013)
2013 WL 3243135
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2013 WL 3243135
Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Daniel J.A. WEBB, Plaintiff,
v.
Warden Eduardo MALDONALDO, et al., Defendants.
No. 3:13–cv–144(RNC).
|
June 26, 2013.
Attorneys and Law Firms
Daniel J.A. Webb, Somers, CT, pro se.
RULING AND ORDER
ROBERT N. CHATIGNY, District Judge.
*1 Plaintiff Daniel Webb, a death row inmate at Northern
Correctional Institution, brings this action pro se pursuant
to 42 U .S.C. § 1983 against personnel of the Connecticut
Department of Correction (“DOC”). Named as defendants
are Warden Eduardo Maldonaldo, District Administrator
Angel Quiros, Lieutenants Pensavaly, Bujnicki and Doe,
Correctional Officers Mumin, Brace, Krob, McGoldrick and
Castinguay, Counselor Tourangeau, Counselor Supervisor
Cassandra Davis and Correctional Health Nurse Doe.
Because the complaint fails to comply with the requirements
of Rules 8 and 20 of the Federal Rules of Civil Procedure, it
is dismissed with leave to amend.
Under 28 U.S.C. § 1915A, a district court is required to screen
a prisoner's complaint against governmental entities, officers
or employees and dismiss the complaint if it is frivolous or
malicious, fails to state a claim upon which relief may be
granted or seeks monetary relief from a defendant who is
immune from such relief. In reviewing a pro se complaint,
a court must assume the truth of the factual allegations and
interpret them liberally to “raise the strongest arguments
[they] suggest[ ].” Abbas v. Dixon, 480 F.3d 636, 639
(2d Cir.2007). To avoid dismissal, a complaint must allege
“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 on its face “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).
In this case, the screening required by the statute is
inordinately burdensome because the complaint fails to
comply with Rule 8's pleading requirements. Rule 8(a)(2)
provides that a complaint “must contain ... a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). Rule 8(d)(1) requires that
“[e]ach allegation must be simple, concise, and direct.” Id.
8(d)(1). The purpose of Rule 8 is “to permit the defendant to
have a fair understanding of what the plaintiff is complaining
about and to know whether there is a legal basis for recovery
[.]” Ricciuti v. New York City Trans. Auth., 941 F.2d 119, 123
(2d Cir.1991) (citation omitted). In addition, “the rule serves
to sharpen the issues to be litigated and to confine discovery
and the presentation of evidence at trial within reasonable
bounds.” Powell v. Marine Midland Bank, 162 F .R.D. 15,
16 (N.D.N.Y.1995) (citation and quotation omitted). The
plaintiff's statement of his claim “should be short because
‘[u]nnecessary prolixity in a pleading places an unjustified
burden on the court and the party who must respond to it
because they are forced to select the relevant material from
a mass of verbiage.’ “ Salahuddin v. Cuomo, 861 F.2d 40,
42 (2d Cir.1988) (quoting 5 C. Wright & A. Miller, Federal
Practice and Procedure § 1281, at 365 (1969)); see also
Infanti v. Scharpf, 06 CV 6552(ILG), 2008 WL 2397607,
at *1 (E.D.N.Y. June 10, 2008) (“Complaints which ramble,
which needlessly speculate, accuse, and condemn, and which
contain circuitous diatribes far removed from the heart of
the claim do not comport with these goals and this system;
such complaints must be dismissed.” (citation and quotation
omitted)).
*2 “When a complaint does not comply with the requirement
that it be short and plain, the court has the power, on its
own initiative or in response to a motion by the defendant,
to strike any portions that are redundant or immaterial, see
Fed.R.Civ.P. 12(f), or to dismiss the complaint.” Salahuddin,
861 F.2d at 42. In Salahuddin, a case brought by a prisoner
under § 1983, the Court of Appeals had “no doubt” that the
pro se complaint failed to comply with Rule 8. Id. at 43. The
complaint “span[ned] 15 single-spaced pages and contain[ed]
explicit descriptions of 20–odd defendants, their official
positions, and their roles in the alleged denials of Salahuddin's
rights,” along with a “surfeit of detail.” Id. The Court of
Appeals concluded that the district court had discretion to
dismiss the complaint for noncompliance with Rule 8 and that
the plaintiff should be ordered to file an amended complaint
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Webb v. Maldonaldo, Not Reported in F.Supp.2d (2013)
2013 WL 3243135
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
omitting unnecessary detail. Id.; see also Blakely v. Wells, 209
Fed. App'x 18, 20 (2d Cir.2006) (stating that “[t]he District
Court acted within the bounds of permissible discretion in
dismissing the second amended complaint for noncompliance
with Rule 8(a)” because “[t]he pleading, which spanned
57 pages and contained 597 numbered paragraphs, was far
from short or plain.”); Rosa v. Goord, 29 Fed. App'x 735,
735 (2d Cir.2002) (affirming dismissal of complaint and
amended filings that “remained prolix and not susceptible of
a responsive pleading”).
In this case, the complaint is neither “short and plain,”
Fed.R.Civ.P. 8(a), nor “simple, concise, and direct,” id. 8(d)
(1). The complaint “reads more like a novel than a legal
document.” Sleigh v. Charlex, Inc., No. 03 Civ. 1369(MBM),
2004 WL 2126742, at *8 (S.D.N.Y. Sept. 14, 2004). It
spans 44 singlespaced handwritten pages, containing 156
paragraphs, and is supplemented by 132 pages of attached
materials. Numerous claims are made against a total of
13 defendants. The allegations encompass a wide range of
alleged wrongs, including: (1) verbal harassment and threats;
(2) deliberate indifference to serious medical needs; (3)
inhumane conditions of confinement; (3) false disciplinary
reports; (4) confiscation of property; (5) loss of privileges;
and (6) excessive force.
The complaint also fails to comply with the limits on
permissive joinder of claims against multiple defendants
under Rule 20(a)(2). Joinder of claims against multiple
defendants is permitted by this Rule if two criteria are met:
(1) the claims “aris[e] out of the same transaction, occurrence,
or series of transactions and occurrences”; and (2) “any
question of law or fact common to all defendants will arise
in the action.” Fed.R.Civ.P. 20(a)(2). “What will constitute
the same transaction or occurrence under the first prong of
Rule 20(a) is approached on a case by case basis.” Kehr
ex rel. Kehr v. Yamaha Motor Corp., U.S.A., 596 F.Supp.2d
821, 826 (S.D.N.Y.2008) (citation omitted). “In construing
the term ‘transaction or occurrence’ under Rule 20, many
courts have drawn guidance from the use of the same term in
Rule 13(a), applying to compulsory counterclaims.” Barnhart
v. Town of Parma, 252 F.R.D. 156, 160 (W.D.N.Y.2008)
(citation omitted); see also 7 Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 1653 (3d ed.). As
the Court of Appeals has observed in the Rule 13 context,
whether a counterclaim arises out of the same transaction
as the original claim depends upon the logical relationship
between the claims and whether the “essential facts of the
various claims are so logically connected that considerations
of judicial economy and fairness dictate that all the issues be
resolved in one lawsuit.” Harris v. Steinem, 571 F.2d 119, 123
(2d Cir.1978).
*3 In this case, the complaint joins in one action claims
that are wholly unrelated. For instance, it asserts Eighth
Amendment claims of excessive force against some of
the defendants, while also asserting a First Amendment
claim against other defendants based on a DOC policy
prohibiting certain sexually explicit materials. Because these
and other claims in the complaint do not “aris[e] out of the
same transaction, occurrence, or series of transactions and
occurrences,” Fed.R.Civ.P. 20(a)(2), the complaint exceeds
the bounds of permissible joinder under Rule 20(a)(2).
When a prisoner's complaint improperly joins unrelated
claims against multiple defendants, the plaintiff may be
attempting to circumvent the three strikes and filing fee
provisions of the Prison Litigation Reform Act. See George
v. Smith, 507 F.3d 605, 607 (7th Cir.2007) (“Unrelated claims
against different defendants belong in different suits, not
only to prevent the sort of morass that this 50–claim, 24–
defendant suit produced but also to ensure that prisoners pay
the required filing fees-for the Prison Litigation Reform Act
limits to 3 the number of frivolous suits or appeals that a
prisoner may file without prepayment of the required fees.
28 U.S.C. § 1915(g).”). Even if that is not the reason for
the misjoinder, a court performing the screening required by
§ 1915A may find it convenient to exercise its authority to
sever parties sua sponte as permitted by Rule 21 and direct the
plaintiff to proceed against those parties in separate actions.
See Fed.R.Civ.P. 21. But when a prisoner's complaint is as
lengthy and detailed as the one here, making it subject to
dismissal for noncompliance with Rule 8, it makes little sense
for a court to attempt to cure the misjoinder of parties on its
own. In the absence of prejudice to the plaintiff's substantive
rights, the better course is to require the plaintiff to choose the
claims he wishes to bring in the action and drop the remainder.
See Wilson v. Bruce, 400 Fed. App'x 106, 108 (7th Cir.2010)
(declining to disturb dismissal predicated on prisoner's failure
to comply with district court's order conditioning his right to
proceed on his willingness to drop misjoined claims).
Accordingly, the complaint is hereby dismissed without
prejudice. Plaintiff will be given leave to file an amended
complaint that (1) provides a short and concise statement of
his claims; and (2) does not attempt to impermissibly join
unrelated claims against multiple defendants. The amended
complaint will be due on or before July 26, 2013.
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Webb v. Maldonaldo, Not Reported in F.Supp.2d (2013)
2013 WL 3243135
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The Clerk will send the plaintiff an amended complaint
form with this order. Plaintiff is cautioned that his amended
complaint must comply with the instructions on the form,
specifically the instructions on page 5 concerning the
requirements for a valid complaint. If the amended complaint
fails to comply with those instructions, the action will be
subject to dismissal with prejudice.
So ordered.
All Citations
Not Reported in F.Supp.2d, 2013 WL 3243135
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 515 of 529

Webb v. Maldonaldo
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 3:13cv00144
WEBB v. MALDONALDO ET AL
— D.Conn. Jan. 30, 2013 Docket
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 516 of 529

Webb v. Maldonaldo
© 2025 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 9 Filed 12/08/25 Page 517 of 529

Webb v. Maldonaldo
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 518 of 529

Griffith v. New York State, Not Reported in Fed. Supp. (2024)
2024 WL 1641587
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 1641587
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Howard GRIFFITH, Plaintiff,
v.
NEW YORK STATE, Attorney General, Defendant.
5:23-CV-1266 (DNH/ML)
|
Signed March 20, 2024
Attorneys and Law Firms
HOWARD GRIFFITH, Plaintiff, Pro Se, 2903 James Street,
#1R, Syracuse, New York 13206.
ORDER and REPORT-RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
I. INTRODUCTION
*1 The Clerk has sent this pro se complaint (Dkt. No. 1)
together with an application to proceed in forma pauperis
(Dkt. No. 2) filed by Howard Griffith (“Plaintiff”) to the Court
for review. For the reasons discussed below, I grant Plaintiff's
in forma pauperis application (Dkt. No. 2) and recommend
that Plaintiff's Complaint (Dkt. No. 1) be dismissed in its
entirety without leave to amend.
II. BACKGROUND
The Complaint is forty-four pages long and includes a series
of allegations that are difficult to follow and appear to have
little in common. (See generally Dkt. No. 1.)
More specifically, Plaintiff appears to allege that between
October 2019 and July 2020 he had issues with various
individuals on real property that he rented from non-party Jan
Nastri in the City of Syracuse. (Dkt. No. 1 at 4-5.) Plaintiff
alleges that he drafted a N.Y. C.P.L.R. Article 78 petition
against Onondaga County and provided a copy of the draft
petition to Jan Nastri. (Id. at 5-6.)
Plaintiff alleges that on September 14, 2020, he attempted
to comply with his obligation to update his address with the
sex offender registry but that the Syracuse Police Department
would not include an apartment number with his address. (Id.
at 7.) Plaintiff alleges that he filed the Article 78 petition
he previously drafted with the addition of three points. (Id.)
Plaintiff alleges that on October 30, 2020, New York State
Judge McClusky rejected Plaintiff's request for poor person
status. (Dkt. No. 1 at 9.)
The Complaint refers to an action that Plaintiff previously
commenced in this Court, Griffith v. New York, 5:20-CV-1312
(GLS/ML) (“Griffith I”), which was dismissed. (Dkt. No. 1
at 11.)
The Complaint alleges that on November 3, 2020, Plaintiff
contacted then-Congressman Katko to lodge a complaint
about his “false address demonstrated with his sex offender
registry which provided the remedy to obtain mail-in
ballots.” (Id. at 12.) Plaintiff alleges that in response
to his correspondence, then-Congressman Katko sued the
Onondaga County Board of Elections. (Id.)
The Complaint alleges that on January 10, 2002, Plaintiff was
convicted of Rape in the first degree pursuant to N.Y. Penal
Law § 130.35(1). (Dkt. No. 1 at 13.) The Complaint alleges
that as a result of that conviction, Plaintiff was deemed a
Level III sex offender pursuant to N.Y. Correct. Law § 168.
(Id.) Plaintiff alleges that he sought (1) to vacate his judgment
of conviction, (2) modification of his sex offender registry
obligations, and (3) habeas corpus relief. (Id. at 13-19.)
Plaintiff alleges that on March 9, 2021, he responded to
a reward notification posted by the Federal Bureau of
Investigation with information about individuals producing
pipe bombs and explosive devices used on January 6, 2021,
in Washington DC. (Dkt. No. 1 at 19.) The Complaint alleges
that Plaintiff discovered evidence in the dumpster where he
disposes of trash and referred the evidence to the Onondaga
County District Attorney's office. (Id. at 19-20.)
The Complaint alleges that on June 8, 2021, Plaintiff was
incarcerated for failure to register as a sex offender pursuant
to N.Y. Correct. Law § 168-f(3). (Dkt. No. 1 at 22.) The
Complaint alleges that Plaintiff was incarcerated “because
the police needed a reason to place [Plaintiff] in jail for a
psychiatric evaluation ... after he had recovered from a grand-
mal seizure.” (Id.)
*2 The Complaint alleges that Plaintiff sought a
modification to his SORA level, which apparently was denied
because, the Complaint alleges that had the modification been
granted, he would have only been required to register once
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Griffith v. New York State, Not Reported in Fed. Supp. (2024)
2024 WL 1641587
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 2
per year. (Dkt. No. 1 at 23.) Plaintiff alleges that he was
denied access to the law library while incarcerated at the
Onondaga County Justice Center because he was not given
the inmate handbook. (Id.) Plaintiff alleges that he was placed
in segregated housing because he struck a deputy who refused
to authorize him use of the law library. (Id.) Plaintiff alleges
that he was unable to exhaust his administrative remedies
with respect to the associated disciplinary hearing because he
was transferred to the Central New York Psychiatric Center
(“CNYPC”). (Id.)
The Complaint alleges that Plaintiff was released from
custody on bail on October 18, 2021. (Dkt. No. 1 at 27.)
The Complaint alleges that after Plaintiff was released, “he
obtained a medicare voucher at his mailbox for the person
identified on the flier that he filed with ‘Howard Griffith v.
Onondaga County, [ ]’. The medicare voucher was addressed
to the fake address he attempted to demonstrate with his
sex offender registry.... Plaintiff demonstrated how New York
citizens had just voted against proposals that would ease
restrictions on voting laws with regards to redistricting, mail-
in ballots and same day voter registration.” (Id.)
The Complaint alleges that on February 18, 2022, Plaintiff
was convicted of failing to fulfill his duty to register as a
sex offender pursuant to N.Y. Corr. Law § 168-f(3). (Dkt.
No. 1 at 30.) The Complaint alleges that on March 7, 2022,
Plaintiff was arrested and charged with harassment in the
second degree for striking his roommate, Rebecca Sklaney.
(Id. at 31.)
The Complaint does not appear to assert any causes of action,
but states that it is “brought pursuant to 42 USC § 1983, to
remedy the deprivation, under color of state law, of the rights
guaranteed under the Fifth and Fourteenth Amendments of
the United States Constitution.” (Dkt. No. 1 at 2.) As relief,
the Complaint seeks, inter alia, (1) reconsideration of Griffith
I, (2) a declaration that mail-in voting ballots be eliminated
from elections, and (3) an investigation “into whether any
person or entity has engaged in ... fraudulent, illegal or
deceptive conduct in the ownership, operation or management
of the residential properties owned, operated and/or managed
by Jan Nastri.” (Dkt. No. 1 at 43-44.)
III. PLAINTIFF'S APPLICATION TO PROCEED IN
FORMA PAUPERIS
When a civil action is commenced in a federal district court,
the statutory filing fee, currently set at $405, must ordinarily
be paid. 28 U.S.C. § 1914(a). A court is authorized, however,
to permit a litigant to proceed in forma pauperis status if a
party “is unable to pay” the standard fee for commencing an
action. 28 U.S.C. § 1915(a)(1). 1 After reviewing Plaintiff's in
forma pauperis application (Dkt. No. 2), the Court finds that
Plaintiff meets this standard. Therefore, Plaintiff's application
to proceed in forma pauperis is granted. 2
1 The language of that section is ambiguous because
it suggests an intent to limit availability of IFP
status to prison inmates. See 28 U.S.C. § 1915(a)
(1) (authorizing the commencement of an action
without prepayment of fees “by a person who
submits an affidavit that includes a statement of all
assets such prisoner possesses”). The courts have
construed that section, however, as making IFP
status available to any litigant who can meet the
governing financial criteria. Hayes v. United States,
71 Fed. Cl. 366, 367 (Fed. Cl. 2006); Fridman v.
City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y.
2002).
2 Plaintiff is reminded that, although the application
to proceed in forma pauperis has been granted, he
will still be required to pay fees that he may incur in
this action, including copying and/or witness fees.
IV. LEGAL STANDARD FOR INITIAL REVIEW OF
COMPLAINT
*3 “Notwithstanding any filing fee, or any portion thereof,
that may have been paid, the court shall dismiss the case at any
time if the court determines that ... 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).
In determining whether an action is frivolous, the court must
consider whether the complaint lacks an arguable basis in
law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Dismissal of frivolous actions is appropriate to prevent
abuses of court process as well as to discourage the waste
of judicial resources. Neitzke, 490 U.S. at 327; Harkins v.
Eldridge, 505 F.2d 802, 804 (8th Cir. 1974); see Fitzgerald
v. First East Seventh Street Tenants Corp., 221 F.3d 362,
364 (2d Cir. 2000) (a district court “may dismiss a frivolous
complaint sua sponte even when the plaintiff has paid the
required filing fee[.]”); see also Pflaum v. Town of Stuyvesant,
Columbia Cnty., N.Y., 11-CV-0335, 2016 WL 865296, at *1,
n.2 (N.D.N.Y. Mar. 2, 2016) (Suddaby, C.J.) (finding that
the Court had the power to address and dismiss additional
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Griffith v. New York State, Not Reported in Fed. Supp. (2024)
2024 WL 1641587
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 3
theories of the plaintiff's retaliation claim sua sponte because
those theories were so lacking in arguable merit as to be
frivolous).
In order to state a claim upon which relief can be granted,
a complaint must contain, inter alia, “a short and plain
statement of the claim showing 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) (emphasis
added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
[2007]). “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.” Iqbal, 556
U.S. at 679 (internal citation and punctuation omitted).
“In reviewing a complaint ... 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).
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.
Courts are “obligated to construe a pro se complaint liberally.”
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also
Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam)
(reading the plaintiff's pro se complaint “broadly, as we
must” and holding that the complaint sufficiently raised a
cognizable claim). “[E]xtreme caution should be exercised in
ordering sua sponte dismissal of a pro se complaint before the
adverse party has been served and [the] parties ... have had an
opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37,
41 (2d Cir. 1983).
V. ANALYSIS
*4 In addressing the sufficiency of a plaintiff's complaint,
the court must construe his pleadings liberally. Sealed
Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir.
2008). Having reviewed Plaintiff's Complaint with this
principle in mind, I recommend that all causes of action be
dismissed.
Plaintiff brings this action pursuant to Section 1983, which
establishes a cause of action for “ ‘the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws’ of the United States.” German v. Fed. Home
Loan Mortg. Corp., 885 F. Supp. 537, 573 (S.D.N.Y. 1995)
(citing Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508
(1990) (quoting 42 U.S.C. § 1983)) (footnote omitted).
“Section 1983 itself creates no substantive rights, [but] ...
only a procedure for redress for the deprivation of rights
established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d
Cir. 1993) (citation omitted). To establish liability under the
statute, a plaintiff must plead that each government official
defendant violated the Constitution through that official's own
individual actions. Tangreti v. Bachmann, 983 F.3d 609, 618
(2d Cir. 2020).
Plaintiff's Complaint is largely incomprehensible and must be
dismissed for two reasons.
A. Frivolous
First, Rule 8 of the Fed. R. Civ. P. requires a “short and plain
statement” of a claim, showing that “the pleader is entitled
to relief.” Whitfield v. Johnson, 763 F. App'x 106, 107 (2d
Cir. 2019) (quoting Fed. R. Civ. P. 8(a)). Each statement
must be “simple, concise, and direct,’ and must give ‘fair
notice of the claims asserted.” Whitfield, 763 F. App'x at
107 (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir.
1995)). A pleading must also contain “a demand for the relief
sought[.]” Id. “A complaint may be dismissed under Rule 8 if
it is ‘so confused, ambiguous, or otherwise unintelligible that
its true substance, if any, is well disguised.’ ” Id. Moreover,
Rule 10 of the Fed. R. Civ. P. provides that “[a] party must
state its claims or defenses in numbered paragraphs, each
limited as far as practicable to a single set of circumstances[.]”
Fed. R. Civ. P. 10(b). Rule 10’s purpose is to “provide an easy
mode of identification for referring to a particular paragraph
in a prior pleading[.]” Clervrain v. Robbins, 22-CV-1248,
2022 WL 17517312, at *2 (N.D.N.Y. Dec. 8, 2022) (Stewart,
M.J.) (citation omitted), report and recommendation adopted,
2023 WL 3170384 (N.D.N.Y. May 1, 2023) (D'Agostino, J.).
A complaint that does not comply with these Rules “presents
far too heavy a burden in terms of defendants’ duty to shape a
comprehensive defense and provides no meaningful basis for
the Court to assess the sufficiency of [the plaintiff's] claims,”
and may properly be dismissed by the court. Gonzales v. Wing,
167 F.R.D. 352, 355 (N.D.N.Y. 1996) (McAvoy, C.J.).
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As it currently stands, Plaintiff's Complaint wholly fails
to provide fair notice of the claims he attempts to assert.
Although the Complaint begins using numbered paragraphs
on pages 1 and 2, the remaining forty-two pages of the
Complaint are unnumbered paragraphs. (See generally Dkt.
No. 1.) Moreover, the Complaint is extremely difficult to
follow and, as mentioned above, alleges a series of grievances
that appear to have little to do with one another. As best as
the undersigned can decipher, Plaintiff appears to believe that
his arrest—and ultimate conviction—for failing to comply
with his duty to register as a sex offender is somehow related
to voting regulations in New York State. (Id.) Given its
lack of clarity, the undersigned recommends dismissal of the
Complaint because it is not acceptable under Rules 8 and 10 of
the Fed. R. Civ. P. and because Plaintiff's Section 1983 claim
or claims against Defendant are entirely unclear.
B. Immunity
*5 Second, and in the alternative, I recommend that
Plaintiff's Complaint be dismissed because it seeks relief from
New York State, which is immune from suit.
The Eleventh Amendment bars individuals from suing states
in federal court, unless Congress abrogates states’ immunity
or a state consents to suit. See U.S. Const. Amend. XI;
Gollomp v. Spitzer, 568 F.3d 355, 365-66 (2d Cir. 2009).
Eleventh Amendment immunity in this case extends to arms
of New York State, including the New York State Attorney
General. See Smith v. United States, 554 F. App'x 30, 31
(2d Cir. 2013) (affirming dismissal of claims against the
New York State Attorney General on sovereign immunity
grounds). Accordingly, I recommend that Plaintiff's claims
asserted against the New York State Attorney General be
dismissed pursuant to Section 1915(e)(2)(B)(i).
VI. OPPORTUNITY TO AMEND
Generally, a court should not dismiss claims contained in 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.”
Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991);
see also Fed. R. Civ. P. 15(a)(2) (“The court should freely
give leave when justice so requires.”). An opportunity to
amend is not required, however, where “the problem with [the
plaintiff's] causes of action is substantive” such that “better
pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding
L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a
plaintiff is unable to allege any fact sufficient to support its
claim, a complaint should be dismissed with prejudice.”).
Stated differently, “[w]here it appears that granting leave to
amend is unlikely to be productive, ... it is not an abuse of
discretion to deny leave to amend.” Ruffolo v. Oppenheimer
& Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v.
Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept.
22, 1997) (Pooler, J.). 3
3 See also Carris v. First Student, Inc., 132 F. Supp.
3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby,
C.J.) (explaining that the standard set forth in
Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794,
796 (2d Cir. 1999)—that the Court should grant
leave to amend “unless the court can rule out any
possibility, however unlikely it might be, that an
amended complaint would be successful in stating
a claim”—is likely not an accurate recitation of the
governing law after Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007)), rev'd on other grounds, 682 F.
App'x 30.
Here, better pleading could not cure the Court's lack
of subject matter jurisdiction based on the immunities
described above. 4 See Roark v. New York, 23-CV-1237,
2023 WL 8827185, at *6 (N.D.N.Y. Dec. 21, 2023) (Lovric,
M.J.) (recommending dismissal without leave to amend the
plaintiff's claims against the People of the State of New York
and the Watertown District Attorney's Office because those
governmental entities were immune from suit), report and
recommendation adopted, 2024 WL 125512 (N.D.N.Y. Jan.
11, 2024) (Hurd, J.).
4 The undersigned notes that a dismissal based on the
doctrine of sovereign immunity, is consequently
a dismissal for lack of subject matter jurisdiction.
Crumble v. United States, 23-CV-4427, 2023 WL
5102907, at *7 (S.D.N.Y. Aug. 7, 2023); Nguyen
v. Kijakazi, 20-CV-0607, 2022 WL 542265, at *8
(E.D.N.Y. Feb. 23, 2022). Moreover, the Second
Circuit has directed that dismissals for lack of
subject matter jurisdiction are to be made without
prejudice. Abadi v. City of New York, 22-CV-1560,
2023 WL 3295949, at *3 n.3 (2d Cir. May 8,
2023) (summary order) (citing Katz v. Donna
Karan Co., 872 F.3d 114, 116 (2d Cir. 2017) (“[A]
complaint must be dismissed without prejudice
where the dismissal is due to the court's lack of
subject matter jurisdiction.”)) (“Because the Court
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Griffith v. New York State, Not Reported in Fed. Supp. (2024)
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lacks subject matter jurisdiction ... the amended
complaint should be dismissed without prejudice.”)
(emphasis in original).
*6 ACCORDINGLY, it is
ORDERED that Plaintiff's IFP application (Dkt. No. 2) is
GRANTED; and it is further respectfully
RECOMMENDED that the Court DISMISS WITHOUT
PREJUDICE BUT WITHOUT LEAVE TO REPLEAD
Plaintiff's Complaint (Dkt. No. 1) for frivolousness and
because Defendant is immune from suit, pursuant to 28
U.S.C. § 1915(e)(2)(B); and it is further
ORDERED that the Clerk of the Court shall file a copy of this
Order and Report-Recommendation on Plaintiff, along with
copies of the unpublished decisions cited herein in accordance
with the Second Circuit's decision in Lebron v. Sanders, 557
F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties
have fourteen days within which to file written objections
to the foregoing report. 5 Such objections shall be filed
with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)
(1) (Supp. 2013); Fed. R. Civ. P. 6(a), 6(d), 72; 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)).
5 If you are proceeding pro se and served with this
report, recommendation, and order by mail, three
additional days will be added to the fourteen-day
period, meaning that you have seventeen days from
the date that 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. Fed. R. Civ. P. 6(a)(1)(C).
All Citations
Not Reported in Fed. Supp., 2024 WL 1641587
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Griffith v. New York State
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 5:23-CV-01266
Griffith v. New York State Attorney General
— N.D.N.Y. Oct. 10, 2023 Docket
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 524 of 529

Griffith v. New York State
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (2)
1. Griffith v. New York State
2024 WL 1641587 , N.D.N.Y. , Mar. 20, 2024
Report and Recommendation Adopted by
2. Griffith v. New York State Attorney General
2024 WL 1639856 , N.D.N.Y. , Apr. 16, 2024
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 525 of 529

Griffith v. New York State
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 526 of 529

Griffith v. New York State Attorney General, Not Reported in Fed. Supp. (2024)
2024 WL 1639856
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 1639856
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Howard GRIFFITH, Plaintiff,
v.
NEW YORK STATE ATTORNEY
GENERAL, Defendant.
5:23-CV-1266
|
Signed April 16, 2024
Attorneys and Law Firms
HOWARD GRIFFITH, Plaintiff, Pro Se, 2903 James Street,
#1R, Syracuse, NY 13206.
ORDER ON REPORT & RECOMMENDATION
DAVID N. HURD, United States District Judge
*1 On October 10, 2023, pro se plaintiff Howard Griffith
(“plaintiff”) filed this civil action alleging that defendant
somehow violated his rights in connection with a real property
rental dispute with non-parties. Dkt. No. 1. Along with his
complaint, plaintiff moved for leave to proceed in forma
pauperis (“IFP Application”). Dkt. No. 2.
On March 20, 2024, U.S. Magistrate Judge Miroslav
Lovric granted plaintiff's IFP Application, conducted an
initial review of the pleading, and advised by Report
& Recommendation (“R&R”) that plaintiff's complaint be
dismissed without prejudice but without leave to amend. Dkt.
No. 7. As Judge Lovric explained, plaintiff's pleading was
frivolous. Id.
Plaintiff has lodged objections. Dkt. No. 8. Upon de novo
review, the R&R is accepted and will be adopted. 28 U.S.C.
§ 636(b)(1)(C).
Therefore, it is
ORDERED that
1. The Report & Recommendation (Dkt. No. 7) is
ACCEPTED;
2. Plaintiff's complaint is DISMISSED without prejudice but
without leave to amend.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2024 WL 1639856
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 527 of 529

Griffith v. New York State Attorney General
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 5:23-CV-01266
Griffith v. New York State Attorney General
— N.D.N.Y. Oct. 10, 2023 Docket
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 528 of 529

Griffith v. New York State Attorney General
© 2025 Thomson Reuters. No claim to original U.S. Government Works.
History (2)
Direct History (2)
1. Griffith v. New York State
2024 WL 1641587 , N.D.N.Y. , Mar. 20, 2024
Report and Recommendation Adopted by
2. Griffith v. New York State Attorney General
2024 WL 1639856 , N.D.N.Y. , Apr. 16, 2024
Case 5:25-cv-00956-AJB-MJK Document 9 Filed 12/08/25 Page 529 of 529