Robinson v. Barnett et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
RONALD ROBINSON,
Plaintiff,
v.
No. 9:23-CV-1388
DETECTIVE BOIL, et al., 	(ECC/PJE)
Defendants.
_____________________________________
APPEARANCES: 	OF COUNSEL:
Ronald Robinson
24-B-0556
Greene Correctional Facility
P.O. Box 975
Coxsackie, New York 12051
Plaintiff pro se
Sugarman Law Firm LLP 	PAUL V. MULLEN, ESQ.
Syracuse Office 	PAUL G. LYONS, ESQ.
211 West Jefferson Street
Syracuse, New York 13202
Attorney for defendants
PAUL J. EVANGELISTA
U.S. MAGISTRATE JUDGE
REPORT-RECOMMENDATION AND ORDER1
Plaintiff pro se Ronald Robinson (“plaintiff”), an inmate who was, at all relevant
times, in the custody of the New York State Department of Corrections and Community
Supervision (“DOCCS”), brings this action pursuant to 42 U.S.C. § 1983. Plaintiff alleges
that defendants Detective Boil, Drug Task Force Jefferson County (“Boil); Detective
1 This matter was referred to the undersigned for Report-Recommendation and Order pursuant to 28 U.S.C.
§ 636(b) and N.D.N.Y. L.R. 72.3(c).
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Vaughn, Jefferson Drug Task Force Detective (“Vaughn”); and Robert Locy, Corrections
Officer #3601 (“Locy”) (“C.O.”); violated his constitutional rights under the First and
Fourteenth Amendments. 	See Dkt. No. 1 at 5-7, 12-13.2 	Presently before the Court is
defendants Vaughn and Locy’s motion for summary judgment pursuant to Federal Rule
of Civil Procedure (“Fed. R. Civ. P.”) 56. See Dkt. No. 54.3 For the following reasons, it
is recommended that defendants’ motion be granted in part and denied in part.
I. Facts
In support of their motion, defendants filed a Statement of Material Facts. See Dkt.
No. 54-11. As will be discussed below, plaintiff failed to properly respond to defendants’
Statement of Material Facts. See Dkt. No. 65.
A. N.D.N.Y. Local Rule 56.1
N.D.N.Y. Local Rule 56.1(b) requires that a party opposing summary judgment file
a response to the movant's Statement of Material Facts, “admitting and/or denying each
of the movant's assertions in a short and concise statement, in matching numbered
paragraphs.” “The Court may deem admitted any properly supported facts set forth in the
Statement of Material Facts that the opposing party does not specifically controvert.” Id.
(emphasis omitted). 	Here, plaintiff filed a response to defendants’ motion for summary
judgment. 	See generally Dkt. No. 65. 	However, plaintiff’s submission is not properly
responsive to defendants’ Statement of Material Facts. Although plaintiff’s response does
2 Plaintiff initially sought to bring this complaint against Peter Barnett, County Sheriff; Tricia Youker,
Jefferson County Public Defender; and Joseph Donoghue, #24653, however, on initial review, the Court
sua sponte dismissed numerous claims against these individuals pursuant to 28 U.S.C. § 1915(e)(2)(B)
and 28 U.S.C. § 1915A(b). See Dkt. Nos. 1, 5.
3 As of the time of this filing Boil had not appeared in this action. See Dkt. No. 54-1 at 3. Boil has since
appeared in this action but is not a party seeking relief in the motion presently before the Court. See Dkt.
No. 72.
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admit or deny some of defendants’ “assertions in a short and concise statement, in
matching numbered paragraphs,” plaintiff also reiterates the facts from the complaint and
disputes the factual contentions contained in defendants’ declarations. 	N.D.N.Y. L.R.
56.1(b); see Dkt. No. 65 at 9-21. 	Further, in other parts of plaintiff’s response, he does
not cite to the record for the facts he sets forth, in violation of Local Rule 56.1(a). 	See
Dkt. No. 65 at 9-21; see also N.D.N.Y. L.R. 56.1(a)(“Each fact listed shall set forth a
specific citation to the record where the fact is established.).
The Court is not required to “perform an independent review of the record to find
proof of a factual dispute.” 	Prestopnik v. Whelan, 253 F. Supp. 2d 369, 371 (N.D.N.Y.
2003) (citing Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470-71 (2d Cir. 2002)).
Although the Local Rules provide that the undersigned shall deem admitted any facts that
the nonmoving party fails to “specifically controvert,” and pro se plaintiffs are expected to
abide by the Local Rules, pro se plaintiffs are also afforded special solicitude in this District
and Circuit. 	See N.D.N.Y. L.R. 56.1(b); see also Treistman v. Fed. Bureau of Prisons,
470 F.3d 471, 477 (2d Cir. 2006) (per curiam). Accordingly, in deference to plaintiff's pro
se status, the Court will independently review the record when evaluating defendants’
motions for summary judgment and dismissal, and “treat [plaintiff’s] opposition as a
response to” defendants’ Statement of Material Facts. Robinson v. Mirza, No. 9:21-CV-
1322 (DNH/CFH), 2024 WL 4464280, at *7 (N.D.N.Y. July 30, 2024), report and
recommendation adopted sub nom. Robinson v. Mizra, No. 9:21-CV-1322, 2024 WL
4249222 (N.D.N.Y. Sept. 20, 2024) (citing Johnson v. Lew, No. 1:13-CV-1072 (GTS/CFH),
2017 WL 3822047, at *2 (N.D.N.Y. Aug. 30, 2017) (“Out of special solicitude to [the
p]laintiff as a pro se civil rights litigant . . . the Court will treat his opposition as a response
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to [the d]efendant’s []Statement . . . .” )); see also Perry v. Ogdensburg Corr. Fac., No.
9:10-CV-1033 	(LEK/TWD), 	2016 	WL 	3004658, 	at 	*1 	(N.D.N.Y. 	May 	24, 	2016)4
(“[A]lthough [p]laintiff failed to respond to the statement of material facts filed by
[d]efendants as required under Local Rule[s], the Court would invoke its discretion to
review the entire record when evaluating the parties’ respective [m]otions for summary
judgment.”).
B. Undisputed Facts
Vaughn began working for the Jefferson County Sherrif’s Office in 2005, was
promoted to detective in 2016, and started working with the Jefferson County Metro-
Jefferson Drug Task Force (“Task Force”) in December 2021. 	See Dkt. No. 54-11 at 1,
¶1-3; Dkt. No. 65 at 9. “As a member of the task force,” Vaughn’s duties include
[performing] a variety of police functions, pursuing evidentiary leads from
local 	community 	members; 	working 	with 	confidential 	informants 	with
information on potential illegal narcotics sales; assisting with the execution
of valid search warrants issued by the Court against potential narcotic
sellers; making arrests relative to illegal narcotic sales; and, assisting other
members of the Task Force in the above functions as they relate to their
cases
Dkt. No. 54-11 at 2, ¶7; see Dkt. No. 65 at 9.
On April 2, 2019, plaintiff filed a lawsuit in this Court “naming several members of
the Task Force . . . arising out of a 2016 search warrant and attempted drug buy at his
Watertown, New York, apartment.” 	Dkt. No. 54-11 at 2, ¶8 (citing Robinson v. Hallet, et
al., Case #: 5:19-CV-0406 (MAD/ATB), Dkt. No. 1); Dkt. No. 65 at 10. The Court awarded
defendants summary judgment and the lawsuit was dismissed. 	Dkt. No. 54-11 at 2, ¶9;
see Dkt. No. 65 at 10.
4 The Court has provided plaintiff with copies of all unpublished cases cited within this Report-
Recommendation and Order.
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In this present matter, there are three incidents “relating to or involving” plaintiff
and Vaughn: “(1) a 2016 attempted narcotics sale with [] Plaintiff using a confidential
informant; (2) a September 14, 2021, ‘Drug Info’ tip relating to potential narcotics sales;
and (3) a February 28, 2022, successful drug buy from [] plaintiff, and subsequent search
warrant (and search of his home on March 14, 2022) following the narcotics sale.” Dkt.
No. 54-11 at 2-3, ¶11; see Dkt. No. 65 at 10. Vaughn was not involved and “did not play
any role in the 2016 attempted narcotics sale” or the “September 14, 2021, ‘Drug Info’
tip.” Dkt. No. 54-11 at 3, ¶12-13; see Dkt. No. 65 at 10. “Vaughn assisted with the March
14, 2022[,] execution of the search warrant on Plaintiff’s apartment.” Dkt. No. 54-11 at 3,
¶15; see Dkt. No. 65 at 10.
On February 21, 2023, “[w]hile housed at the Jefferson County Correctional Facility
[(“Jefferson County CF”)] . . . Plaintiff was involved in a physical altercation with fellow
inmate, Housery Rodriguez [(“Rodriguez”)].” Dkt. No. 54-11 at 3, ¶19; see Dkt. No. 65 at
10. On that day, “Locy was the corrections officer working on POD 1B, the housing POD”
in which plaintiff and Rodriguez resided. Dkt. No. 54-11 at 4, ¶20; see Dkt. No. 65 at 12.
Plaintiff was housed in Cell 118. 	See Dkt. No. 54-11 at 4, ¶21; Dkt. No. 65 at 12.
Rodriguez was housed in Cell 117. See Dkt. No. 54-11 at 4, ¶22; Dkt. No. 65 at 12. Both
Cell 117 and Cell 118 are segregated cells. See Dkt. No. 54-11 at 4, ¶21-22; Dkt. No. 65
at 12.
C. Plaintiff’s Facts
Plaintiff claims that between 2021 and 2023, Vaughn harassed and followed him
“around Watertown [and] Syracuse.” 	Dkt. No. 54-2 at 5. 	Plaintiff alleges that Vaughn’s
harassment included sending confidential informants to his residence at 305 Gotham
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Street, Apt. 6, Watertown, New York 13601 to “elicit drug sales or buy [drugs] and for
information (sic)” in retaliation for filing a civil lawsuit against the Task Force in Dkt. No.
5:19-CV-0406. See id. Plaintiff testified that he resided at 305 Gotham Street for “around
six months” prior to his incarceration. 	Dkt. No. 54-8 at 8. 	Plaintiff also testified that the
lawsuit in Dkt. No. 5:19-CV-0406 against the Task Force stemmed from a false arrest in
which the Task Force “raided [his] residence and put [him] in custody for several hours
without a warrant.” Dkt. No. 54-8 at 12. Plaintiff stated that he was released from custody
after the Task Force didn’t find anything and the lawsuit in in Dkt. No. 5:19-CV-0406 was
dismissed because he “didn’t keep up on it.” Id.
Concerning his claims arising from events while incarcerated at the Jefferson
County CF, plaintiff testified that on December 13, 2022, upon arriving at arrived at the
Jefferson County CF, he was assaulted by eight correctional officers. Dkt. No. 54-8 at 15-
17. Plaintiff asserts that Locy was working at the Jefferson County CF on December 13,
2022, and that either Locy, or Vaughn, was one of the eight officers that assaulted him.
See id. at 15, 17. 	Contradictorily, plaintiff testified that he doesn’t know if Locy was
present when the assault occurred because he had pepper spray and mace in his eyes,
and of the eight officers present, he “can’t remember their faces.” Id. at 16.
Plaintiff testified that on February 2, 2023, he requested to be permanently
transferred to segregated custody because he suffered from “rib pain,” “wish[ed] to be
. . . 	away from everybody else and by [him]self,” and “was afraid for [his] safety at the
time.” Dkt. No. 54-8 at 20-21. When asked if there “[w]as anything specific that caused
[him] to be fearful of [his] safety on February 2 nd,” plaintiff replied, “Just the happenings,
what’s been going on with the [Task Force] and the sheriffs. That all had me concerned
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for my safety.” Id. at 21. Plaintiff was then asked to clarify “what happened with the [Task
Force] and those officers?” Id. Plaintiff replied, “I alleged that they were harassing me in
retaliation and following me from a prior suit that I filed that we spoke about in 2019 (sic).”
Id. Plaintiff explained that he believed the Task Force was going to retaliate against him
for filing his 2019 lawsuit because he sued the entire Task Force. 	See id. at 21-22.
Plaintiff acknowledged that Locy and Vaughn were not named as defendants in the 2019
lawsuit. 	See id. at 22. 	However, plaintiff testified that he felt the Task Force retaliated
against him because of the treatment he received from the Task Force officers “before
[he] got arrested to the day of [his] arrest, and also on [February 21, 2023].” Id. at 23.
Rodriguez was transferred to POD 1B due to “safety issues” and placed in “cell
moving restraints [after] being caught with a make[shift] jail shank.” Dkt. No. 54-2 at 12.
Plaintiff testified that he knew Rodriguez was the inmate housed in Cell 117 because they
were able to talk, but clarified that he never had any contact with Rodriguez because they
“were segregated.” Dkt. No. 54-8 at 28.
On February 21, 2023, Locy was working in plaintiff’s housing unit. See Dkt. No.
54-8 at 27. Plaintiff testified that at approximately 5:00 p.m.
[d]uring [the] meal pass-out . . . the officer started at Cell 118 and went
around counterclockwise. From 118, he went to 1 -- 130, and then 129, and
so forth. 	When he got to my specific cell, I was waiting to give back my
dinner tray, and I noticed that the officer didn’t collect my tray and order. He
went to the next cell over, which was 117, opened it with his key, left it
unsecured, came over to my cell, opened my cell, and in trying to get me
out of my cell, he asked if I wanted extra Kool-Aid or juice or anything, which
I replied no. As I went to put my tray on the meal cart, I was attacked by an
inmate that was in Cell 118 that the officer had just used his key to open
and left unsecured.
Id. Plaintiff claims that Rodriguez attacked him while Locy was “standing right there.” Id.
at 30; see Dkt. No. 54-2 at 12. Plaintiff further claims that he was unable to defend himself
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but “shot a [dinner] tray at [Rodriguez].” Id. at 33. Plaintiff states that Locy then stepped
in to break up the attack and punched plaintiff in the upper chest with his “back-arm
elbow.” 	Dkt. No. 54-8 at 31. The force of the punch caused plaintiff to hit a door, kiosk
component, or wall. See id; Dkt. No. 54-2 at 13. After Locy broke up the fight, Rodriguez
was not restrained and “walked right back over to his cell, laughing and smiling.” 	Id. at
32. Locy then came back to speak with plaintiff after both he and Rodriguez were back
in their cells and other officers came to the scene. See id. Plaintiff testified that he broke
his ribs during this incident. See id. at 26.
Plaintiff “believe[s]” that immediately prior to the assault, Locy “communicated with
. . . Rodriguez about the going-ons of what was about to take place.” Dkt. No. 54-8 at 43.
Plaintiff saw Locy “make contact with Rodriguez when he went to his [cell] door minutes
prior, before [Locy] came and unlocked [his] door.” Id. at 43-44. Plaintiff asserts that Locy
“was, essentially, trying to get an altercation started” and “purposely let [Rodriguez] out of
his cell area and moving restraints” so he could attack him and further injure his ribs that
he “had been complaining about.” 	Id. at 44; Dkt. No. 54-2 at 12. 	Plaintiff alleges that
Rodriguez’s attack was “premeditated” and Locy knew Rodriguez was going to attack him
because Locy purposely did not secure Rodriguez in his cell even though Locy knew that
plaintiff’s cell would also be open at that exact time. See Dkt. No. 54-2 at 13.
D. Defendants’ Facts
1. Vaughn’s Facts
Vaughn states that he “was not a member of the Task Force in 2016” and has “no
personal knowledge of the 2016 attempted narcotics sale.” Dkt. No. 54-9 at 2. He “was
also not aware of any litigation filed in 2019 by the plaintiff that related to any 2016
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attempted narcotics sale.” Id. at 3. Vaughn states that “the 2019 lawsuit had no impact
nor played any role in the exercise of my policing responsibilities as a member of the Task
Force, now or during the 2021 to September 7, 2023[,] time period that Plaintiff references
in his current federal court lawsuit against me.” 	Id. 	Vaughn denies having any
involvement in the September 14, 2021, “Drug Info” tip. Id.
Vaughn claims that the final incident between the Task Force and plaintiff was the
March 14, 2022, execution of a search warrant at plaintiff’s residence. See Dkt. No. 54-
9 at 3. 	Vaughn explains that he “assisted City of Watertown Police Officer Sean Boyle,
and other members of the Task Force during the execution of the search warrant . . . but
[he] was not the lead on the case.” 	Id. 	Vaugh states that “[t]he search warrant was
obtained through Judge A. Neddo on March 1, 2022, and was based on probable cause
obtained during a previous February 28, 2022[,] drug buy that took place at [plaintiff’s]
apartment.” Id. Vaughn asserts that his “police work as it relates to [] Plaintiff was in no
way retaliatory” and he “was unaware that Plaintiff brought a prior federal lawsuit as a
result of the 2016 attempted drug buy.” Id.
2. Locy’s Facts
Locy states that in February 2023, he was working at the Jefferson County CF “as
a POD Officer on the 1B wing.” Dkt. No. 54-10 at 1. Locy explains that
[a]s 	a 	POD 	Officer, 	my 	responsibilities 	generally 	included 	the 	direct
supervision of the inmates located on the POD that I was responsible for.
My responsibilities included, among other things, maintaining good order of
the POD (and thus the greater facility), supervising inmates, delivering and
removing meal trays, and interacting with inmates to prevent any potential
problems from escalating.
Id. at 2.
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Regarding the incident between plaintiff and Rodriguez, Locy asserts that “[t]here
was no ‘keep separate’ order for [] Plaintiff and [] Rodriguez” and he “was not aware of
any previous altercations between Plaintiff and [] Rodriguez.” Dkt. No. 54-10 at 2. Locy
describes the event that occurred on February 21, 2023, as follows:
At around 5:00 p.m. . . . I began my process of collecting meal trays from
the cells, including the segregated cells, on POD 1B.
As I always do, I started at the far right of POD lB, at cell 130, and made my
way cell by cell numerically down.
As I approached the Plaintiff[‘]s cell (118), I opened his cell door to retrieve
his meal tray.
While I attempted to retrieve the Plaintiff[’]s meal tray, the Plaintiff threw his
tray at inmate Rodriguez, who had exited his adjoining cell (117), as I
opened Plaintiff[’]s cell.
I later learned that inmate Rodriguez had used a piece of paper or cloth to
block the mechanism on his cell door to prevent it from closing.
At the above time, both the Plaintiff and inmate Rodriguez began swinging
and hitting each other.
I verbally instructed that both the Plaintiff and inmate Rodriguez cease their
behavior and go back to their cells. . . .
As I was confronted with two combative inmates, and I was between both
of them in a confined space with only one way of egress/ingress, I
subsequently radioed for backup from roving corrections officers ("rovers").
I was then successful in redirecting the Plaintiff back into his cell.
Id. at 2-3. Locy states that “[a]t no point in the Plaintiff’s altercation with inmate Rodriguez”
and “[a]t no point in my efforts to redirect the Plaintiff to his cell did [he] strike the Plaintiff.”
Id. at 3. Locy further states that “[d]uring [his] attempts to redirect the Plaintiff into his cell,
the Plaintiff was actively resisting and still attempting to strike inmate Rodriguez.” Id.
II. Arguments
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A. Defendants’ Arguments
Defendants argue that they are entitled to summary judgment as matter of law on
plaintiff’s First Amendment retaliation against Vaughn and Fourth Amendment excessive
force and failure to protect claims against Locy, and plaintiff’s complaint should be
dismissed in its entirety with prejudice. See Dkt. No. 54-12 at 1.
First, defendants address plaintiff’s First Amendment retaliation claim against
Vaughn. See id. at 3-11. Defendants concede that, “for the purposes of this motion only,”
plaintiff’s 	filing 	of 	the 	2019 	lawsuit 	constitutes 	protected 	speech 	under 	the 	First
Amendment. Dkt. No. 54-12 at 4. However, defendants argue that plaintiff fails to satisfy
the remaining elements necessary to demonstrate First Amendment retaliation. See id.
at 4-5. 	Defendants argue that “liability cannot be imputed upon” Vaughn for retaliation
because he (1) “had no personal involvement in two of the three of the Task Force’s cases
with the Plaintiff, including the 2016 attempted drug buy that was at the heart of Plaintiff’s
2019 lawsuit” and (2) had no knowledge of plaintiff’s 2019 lawsuit when the March 14,
2022, search warrant was executed. Id. Defendants’ claim that “[t]here is nothing in the
record to undermine [] Vaughn’s lack of knowledge.” Id. at 6.
Defendants contend that plaintiff’s claims are “vague and conclusory,” and that
plaintiff has proffered no proof or evidence in support for his conclusion that Vaughn was
“following” him. Dkt. No. 54-12 at 6-7. Defendants note that plaintiff testified, “The whole
task force, they just didn’t like me. And I think it led to that because of the way that I - -
you know, my right to speak out and file a lawsuit itself against them, and then end up in
their custody again.” Id. at 7 (quoting Dkt. No 54-8 at 22). Yet, defendants maintain that
plaintiff’s account of the events underlying this lawsuit are “simply incredible as a matter
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of law and [] not capable of creating a genuine issue of material fact.” Id. at 8. Defendants
further contend that plaintiff’s speech was not chilled because he filed this instant lawsuit.
See id. at 10.
Additionally, defendants argue that Vaughn cannot be held liable for retaliation for
his involvement in executing the March 14, 2022, search warrant because the search
warrant was based on probable cause. 	See Dkt. No. 54-12 at 10. 	Finally, defendants
contend that Vaugh is entitled to qualified immunity because executing a search warrant
based on probable cause is an action a reasonable police officer would perform. See id.
at 11.
Second, defendants address plaintiff’s Fourth Amendment failure to protect claim
against Locy. 	See Dkt. No. 54-12 at 11-14. 	Defendants argue that plaintiff’s Fourth
Amendment failure to protect claim cannot succeed because Locy “was unaware of any
perceived threat to Plaintiff from fellow inmate . . . Rodriguez” and “could not have, nor
should not have, known of any condition that posed a threat to the Plaintiff.” Dkt. No. 54-
12 at 12-13 (citing Rodriguez v. Goins, No. 9:18-CV-1380 (TJM/DJS), 2020 WL 6150984,
at *4 (N.D.N.Y. Aug. 17, 2020), report and recommendation adopted, No. 9:18-CV-1380,
2020 WL 6146597 (N.D.N.Y. Oct. 20, 2020) (quoting Velez v. City of New York, No. 1:17-
CV-9871 (GHW), 2019 WL 3495642, at *4 (S.D.N.Y. Aug. 1, 2019))). Defendants support
this argument with (1) with Locy’s sworn declaration that there was no “keep separate
order on the date of the incident,” (2) by noting that plaintiff was in segregated housing
and “not incarcerated under conditions posing a substantial risk of serious harm”; (3) by
noting that plaintiff did not attempt to warn Locy “of any perceived threat of harm” from
Rodriguez, and (4) with plaintiff’s deposition testimony that he requested segregated
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housing because of his fear of the Task Force, not Rodriguez. Id. at 12-14. Defendants
assert that “[n]owhere in his deposition did Plaintiff mention that he was fearful of []
Rodriguez.” 	Id. at 14. 	Alternatively, defendants argue that “even if the Court were to
accept that a question of fact existed,” Locy is entitled to qualified immunity because his
“actions were not intentional[,] and he did not knowingly violate any law.” 	Id. at 14-15
(citing Rodriguez, 2020 WL 6150984, at *5).
Finally, defendants address plaintiff’s Fourth Amendment excessive force claim.
Dkt. No. 54-12 at 15-18. Defendants argue that plaintiff’s Fourth Amendment excessive
force claim must fail because Locy “denies striking or hitting the Plaintiff in any fashion”
and, even if Locy did strike plaintiff while breaking up the fight, such physical contact was
unintentional and reasonable given the circumstances. 	Id. at 16-17. 	Alternatively,
defendants argue that Locy is entitled to qualified immunity “because no reasonable
factfinder could conclude, based upon the circumstances and the amount of force used,
that his conduct was objectively unreasonable.” Id. at 17.
In reply, defendants assert that plaintiff does not point to any specific dates,
incidents, or details thereof in which Vaughn was harassing or following plaintiff and
instead attaches a copy of a bench warrant unrelated to this matter. Dkt. No. 71 at 4-5.
Defendants also state that plaintiff does not address any of their arguments regarding
qualified immunity. See id. at 6, 9-10.
B. Plaintiff’s Arguments
In opposition to defendants’ motion, plaintiff argues that Vaughn “had no probable
cause to assist other members of the Task Force who were not legally employed by the
City of Watertown Police Department at the time of the search warrant raid on [his]
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residence.” 	Dkt. No. 65 at 4. 	Plaintiff contends that the search warrant was executed
with improper and illegal motivation. See id. at 4, 6. In support of this contention, plaintiff
attaches a copy of a bench warrant issued for his arrest on August 4, 2022. See id. at 5.
Concerning his claims for failure to protect and excessive force, plaintiff asserts
that Locy “knew or should have known that [he] was incarcerated under the condition of
segregated custody from everyone including inmate Rodriguez [] with the condition of risk
of serious for medical reason and having rib pains prior (sic)”. Dkt. No. 65 at 7. Plaintiff
claims that Locy intentionally or recklessly failed to ensure that Rodriguez’s cell door was
secure. See Id. Similarly, plaintiff repeats his prior claims that Rodriguez was “purposely
let out of his cell area and moving restraints by [Locy] during chow time to attack me
physically to further injure my ribs.” 	Id. at 12-13. 	Plaintiff further repeats his claim that
Locy “back-arm elbow punched [him] in the upper chest area” and he “hit a door or a kiosk
component.” Id. at 16.
III. Legal Standards
On review of defendants’ motion for summary judgment, the facts will be related in
the light most favorable to plaintiff as the nonmoving party. See Rattner v. Netburn, 930
F.2d 204, 209 (2d Cir. 1991) (“In assessing the record . . . to determine whether there is
a genuine issue as to any material fact, the court is required to resolve all ambiguities and
draw all factual inferences in favor of the party against whom summary judgment is
sought.”).
A motion for summary judgment may 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 moving party bears the burden of demonstrating
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the absence of disputed material facts by citing to “the record, including depositions,
documents, 	electronically 	stored 	information, 	affidavits 	or 	declarations, 	stipulations
(including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials.” FED. R. CIV . P. 56(c). A fact is material if it “might affect the
outcome of the suit,” as determined by the governing substantive law; a “dispute about a
material fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” 	Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
If the moving party meets this burden, the nonmoving party “must set forth specific
facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248 (citation
omitted); see Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). 	“When ruling on a
summary judgment motion, the district court . . . must resolve all ambiguities and draw all
reasonable inferences against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352
F.3d 775, 780 (2d Cir. 2003) (citation omitted). Still, the nonmoving party cannot rely on
“mere speculation or conjecture as to the true nature of the facts to overcome a motion
for summary judgment.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986) (citing
Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985) (per curiam)); see also
Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (“[M]ere conclusory allegations or
denials . . . cannot by themselves create a genuine issue of material fact where none
would otherwise exist.”) (citation omitted).
Where a party seeks judgment against a pro se litigant, or a pro se litigant moves
for summary judgment, the Court must afford the pro se litigant special solicitude. 	See
Treistman, 470 F.3d at 477. As the Second Circuit explained,
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[t]here 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[ ]” . . . ..
Id. (citations omitted); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191
(2d Cir. 2008) (“On occasions too numerous to count, we have reminded district courts
that when [a] plaintiff proceeds pro se, . . . a court is obligated to construe his pleadings
liberally.”) (citations and quotation marks omitted).
IV. Discussion
A. First Amendment Retaliation
To establish a First Amendment retaliation claim, a 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.” 	Brandon v. Kinter, 938 F.3d 21, 40 (2d Cir. 2019)
(quoting Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004)); see also Espinal v. Goord,
558 F.3d 119, 128 (2d Cir. 2009).
“[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.” 	Greer v. Mehiel, 805 F. App’x 25, 29 (2d Cir. 2020) (summary
order) (quoting Scott v. Coughlin, 344 F.3d 282, 287-88 (2d Cir. 2003) (citing Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977))). “To succeed on this
defense, the defendant bears the burden of showing that ‘it would have taken exactly the
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same action absent the improper motive.’” Id. (quoting Scott, 344 F.3d at 288); Morrow v.
Bauersfeld, No. 21-2928-CV, 2022 WL 17097590, at *1 (2d Cir. Nov. 22, 2022) (quoting
Brandon, 938 F.3d at 40) (“If a plaintiff establishes these elements, a defendant may still
avoid liability by establishing that he would have taken the adverse action even in the
absence of the protected conduct.”) (internal quotations omitted). “Plaintiff has the initial
burden of showing that an improper motive played a substantial part in defendant's action.
The burden then shifts to defendant to show it would have taken exactly the same action
absent the improper motive.” 	Scott, 344 F.3d at 288 (citing Mt. Healthy City Sch. Dist.
Bd. of Educ., 429 U.S. at 287).
In April 2019, plaintiff field a lawsuit against “several members of the Task Force”
stemming from a series of events in 2016 during which the Task Force executed a search
warrant and attempted to buy drugs at his home. Dkt. No. 54-11 at 2 (citing Robinson v.
Hallet, et al., Case #: 5:19-CV-0406 (MAD/ATB), Dkt. No. 1). In February 2022, the Task
Force purchased drugs from plaintiff and subsequently obtained and executed a second
search warrant on plaintiff’s home in March 2022. See id. at 3; Dkt. No. 54-9 at 3.
Here, plaintiff’s complaint alleges that Vaughn, and the Task Force generally,
executed the February 20225 search warrant on his home in retaliation for filing the 2019
lawsuit. See Dkt. No. 1 at 5. Defendants concede that plaintiff’s filing of the 2019 lawsuit
constitutes protected speech under the First Amendment. 	See Dkt. No. 54-12 at 3-4.
However, “[t]he existence of probable cause will defeat ... a First Amendment claim that
is premised on the allegation that defendants prosecuted a plaintiff out of a retaliatory
5 Although plaintiff refers to the second search warrant executed on his home as the “February 2022” search
warrant, the undersigned notes that Vaughn declared that the second search warrant was actually obtained
on March 1, 2022, and executed on March 14, 2022. See Dkt. No. 54-9 at 3. In the interest of clarity and
continuity, the undersigned will refer to the second search warrant as the February 2022 search warrant.
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motive, in an attempt to silence [him].” Mangino v. Inc. Vill. of Patchogue, 808 F.3d 951,
956 (2d Cir. 2015) (quoting Fabrikant v. French, 691 F.3d 193, 215 (2d Cir.2012)); Hicks
v. Bricker, No. 1:25-CV-1598 (MAD/MJK), 2026 WL 82041, at *5 (N.D.N.Y. Jan. 12, 2026)
(quoting Lederman v. Benepe, No. 12 CIV. 6028 (PGG), 2014 WL 1318356, at *9
(S.D.N.Y. Mar. 28, 2014)) (“Where there is probable cause to believe that a plaintiff has
committed a crime, . . . the case law indicates that First Amendment interests must yield,
and that an inquiry into the motive for making an arrest is not necessary.”).
Although plaintiff argues that February 2022 search warrant was executed with
“improper motivation” and “illegal motivation,” Vaughn declared under the penalty of
perjury that “[t]he search warrant was obtained through Judge A. Neddo on March 1,
2022, and was based on probable cause obtained during a previous February 28, 2022[,]
drug buy that took place at [] Plaintiff’s apartment.” Dkt. No. 65 at 4, 6; Dkt. No. 54-9 at
3. Therefore, as defendants correctly argue, plaintiff’s First Amendment retaliation claim
must fail because the February 2022 search warrant was supported by probable cause
and would have been obtained absent any alleged improper motivation. 	See Mangino,
808 F.3d at 956 (quoting Fabrikant, 691 F.3d at 215); Greer, 805 F. App’x at 29 (quoting
Scott, 344 F.3d at 287-88); Hicks, 2026 WL 82041, at *5; Caravalho v. City of New York,
732 F. App'x. 18, 23 (2d Cir. 2018) (summary order) (“The existence of probable cause
defeats a First Amendment claim . . . based on a retaliatory motive.”); Falls v. Pitt, No. 16-
CV-8863 (KMK), 2020 WL 2097626, at *6 (S.D.N.Y. May 1, 2020) (citing McKeefry v. Town
of Bedford, No. 18-CV-10386, 2019 WL 6498312, at *10 (S.D.N.Y. Dec. 2, 2019))
(“Accordingly, because Plaintiff has not adequately pleaded . . . the absence of probable
cause, his purported First Amendment claim cannot be successful.”); see also Dkt. No.
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54-12 at 3-5, 10-11. Accordingly, the undersigned recommends that defendants’ motion
for summary judgment be granted as to plaintiff’s First Amendment retaliation claim
against Vaughn and this claim be dismissed with prejudice.6
B. Fourteenth Amendment Failure to Protect
The Court’s January 17, 2024, Decision and Order determined that at the time
plaintiff was housed at the Jefferson County CF, plaintiff was a pretrial detainee, and
therefore, his failure to protect claim was to be analyzed under the Due Process Clause
of the Fourteenth Amendment. See Dkt. No. 5 at 13 (quoting Darnell v. Pineiro, 849 F.3d
17, 35 (2d Cir. 2017)).
“Prison officials have a duty to take reasonable measures to protect an inmate from
violence by other inmates; failure to do so may constitute a constitutional violation.”
Rodriguez, 2020 WL 6150984, at *3 (quoting Baker v. Tarascio, 2009 WL 581608, at *2
(D. Conn. Mar. 6, 2009)) (internal quotation marks omitted). 	“However, ‘[n]ot . . . every
injury suffered by one prisoner at the hands of another . . . translates into constitutional
liability for prison officials responsible for the victim's safety.’” Id. (quoting Zimmerman v.
Macomber, 2001 WL 946383, at *6 (S.D.N.Y. Aug. 21, 2001) (quoting Farmer v. Brennan,
511 U.S. 825, 834 (1994))). “Rather, an official must act with ‘deliberate indifference to a
substantial risk of serious harm to an inmate.’” Little v. Cnty. of Nassau, 708 F. Supp. 3d
252, 263 (E.D.N.Y. 2023) (quoting Farmer, 511 U.S. 825, 836)
A plaintiff must make two showings to prove a deliberate-indifference claim
under the Fourteenth Amendment, including when invoking a theory of
6 The undersigned notes defendants’ additional arguments that (1) Vaughn had no knowledge of plaintiff’s
protected speech, (2) plaintiff’s claim is conclusory and unsubstantiated, (3) plaintiff’s speech was not
chilled following the execution of the second search warrant; and (4) Vaught is entitled to qualified immunity.
See Dkt. No. 54-12 at 4-11. However, it is not necessary to address the merits of these arguments at this
time because the issuance of the February 2022 search warrant was based on probable cause and is
therefore, a legal bar to plaintiff’s First Amendment retaliation claim.
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failure to protect against (i.e., prevent) an inmate attack. 	The first is “an
‘objective prong’ showing that the challenged conditions were sufficiently
serious to constitute objective deprivations of the right to due process.” The
second is “a ‘subjective prong’ . . . showing that the officer acted with at
least deliberate indifference to the challenged conditions.”
Little, 708 F. Supp. 3d at 263 (quoting Darnell, 849 F.3d at 29); LaPietra v. Mika, No. 9:19-
CV-1527 (TJM/TWD), 2021 WL 7367089, at *4 (N.D.N.Y. Nov. 9, 2021), report and
recommendation adopted, No. 9:19-CV-1527 (TJM/TWD), 2022 WL 325201 (N.D.N.Y.
Feb. 3, 2022) (citing Taylor v. City of New York, No. 16 Civ. 7857 (NRB), 2018 WL
1737626, at *12 (S.D.N.Y. Mar. 27, 2018) (“Although Darnell involved a Fourteenth
Amendment challenge to a prisoner's conditions of confinement, its holding applies with
equal measure to failure to protect claims.”)).
1. Objective Prong
To establish the objective prong, a plaintiff “must show that the conditions, either
alone or in combination, pose[d] an unreasonable risk of serious damage to [the plaintiff’s]
health.” Little, 708 F. Supp. 3d at 263 (quoting Darnell, 849 F.3d at 30 (quoting Walker v.
Schult, 717 F.3d 119, 125 (2d Cir. 2013)). 	“In other words, the conditions must pose a
‘substantial risk of serious harm.’” Id. (quoting Lewis v. Siwicki, 944 F.3d 427, 431 (2d Cir.
2019)). “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 Darnell, 849 F.3d at 30) (quoting Blissett v. Coughlin, 66 F.3d
531, 537 (2d Cir. 1995)); Walker, 717 F.3d at 125 (quoting Jabbar v. Fischer, 683 F.3d 54,
57 (2d Cir. 2012)).
“In cases brought under a failure to protect theory, ‘it does not matter . . . whether
a prisoner faces an excessive risk of attack for reasons personal to him or because all
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prisoners in his situation face such a risk.’” 	Little, 708 F. Supp. 3d at 263-64 (quoting
Farmer, 511 U.S. at 843). “Thus, a plaintiff may satisfy the objective element by showing
either a substantial risk of harm from a specific assailant or a more general risk of harm
due to the conditions at the time of the attack.” Id. at 264 (quoting Ataroua v. Tamir, No.
22-CV-10371, 2023 WL 2216139, at *3 (S.D.N.Y. Feb. 22, 2023) (quoting Hurst v. Perez,
No. 15-CV-4703, 2017 WL 187532, at *2 (S.D.N.Y. Jan. 13, 2017))) (internal quotation
marks omitted).
Here, plaintiff has failed to establish that on February 21, 2023, he faced “a
substantial risk of harm from a specific assailant or a more general risk of harm due to
the conditions at the time of the attack.” Little, 708 F. Supp. 3d at 264 (quoting Ataroua,
2023 WL 2216139, at *3) (quoting Hurst, 2017 WL 187532, at *2)). The parties agree that
at the time of the incident, plaintiff was housed in POD 1B, Cell 118, and that POD 1B
was a segregated housing unit in which the inmates were not able to physically interact
with one another. See Dkt. No. 54-11 at 4; Dkt. No. 65 at 12; Dkt. No. 54-8 at 28. Plaintiff
testified that he requested to be placed in segregated custody because he suffered from
“rib pain,” “wish[ed] to be . . . away from everybody else and by [him]self,” and “was afraid
for [his] safety at the time.” Dkt. No. 54-8 at 20-21. Plaintiff specified that he was afraid
of, “[j]ust the happenings, what’s been going on with the [Task Force] and the sheriffs.
That all had me concerned for my safety.” Id. at 21. Plaintiff does not state or allege that
he feared “a substantial risk of harm from a specific assailant” while housed at the
Jefferson County CF before or after being transferred to segregated housing. See Little,
708 F. Supp. 3d at 264. Although plaintiff’s claim that the Task Force and sheriffs caused
him to fear for his safety could be interpreted as a “more general risk of harm,” plaintiff
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fails to allege that he feared a “general risk of harm due to the conditions at the time of
the attack.” 	Little, 708 F. Supp. 3d at 263-64. 	Rather, plaintiff argues in opposition to
defendants’ motion that Locy “knew or should have known that [he] was incarcerated
under the condition of segregated custody from everyone including inmate Rodrigues []
with the condition of risk of serious for medical reason and having rib pains prior (sic)”.
Dkt. No. 65 at 7.
The undersigned acknowledges plaintiff’s claim that Rodriguez was transferred to
POD 1B due to “safety issues” after “being caught with a make[shift] jail shank.” Dkt. No.
54-2 at 12. 	Plaintiff testified that he was aware Rodriguez was housed in Cell 117
because they were able to talk. See Dkt. No. 54-8 at 28. Yet, plaintiff also testified that
he did not have any physical contact with Rodriguez because their cells were segregated
and plaintiff does not state or allege that he faced any specific threat or risk of harm from
Rodriguez because Rodriguez was housed in the cell next to him prior to the attack. See
id.; Little, 708 F. Supp. 3d at 263-64. 	Similarly, plaintiff testified that while Locy was
retrieving the dinner trays in POD 1B, he left Rodriguez’s cell door unsecured. See id. at
27. However, plaintiff does not allege that Rodriguez’s unsecured cell door constituted a
“substantial risk of harm” from Rodriguez or a “more general risk of harm” immediately
prior to the attack.7 Little, 708 F. Supp. 3d at 263-64.
Moreover, plaintiff fails to address defendants’ argument that Locy “could not have,
nor should not have, known of any condition” that was potentially harmful to plaintiff
because there was “no keep separate order present on the date of the incident” and
7 To the extent that the combination of Rodriguez’s safety issues and his cell door being left unlocked could
arguably be interpreted as either a “substantial risk of harm” from Rodriguez or “more general risk of harm”
in Pod 1B, plaintiff’s Fourteenth Amendment Failure to protect claim must still fail because as will be
discussed below, he does not satisfy the subjective prong. Little, 708 F. Supp. 3d at 263-64, 267-68.
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plaintiff did not attempt to warn Locy “of any perceived threat of harm” from Rodriguez.
Dkt No. 54-12 at 12-14; Dkt. No. 54-10 at 2.
Based on the foregoing, the undersigned concludes that plaintiff fails to satisfy the
objective prong. Little, 708 F. Supp. 3d at 263; Rodriguez, 2020 WL 6150984, at *4 (citing
Velez, 2019 WL 3495642, at *4) (“In order for a corrections officer to be held liable for
failing to protect an inmate from another inmate, the corrections officer must have been
aware of a “clear and specific threat” of harm to that inmate.”).
2. Subjective Prong
To 	establish 	the 	necessary 	subjective 	showing 	under 	the 	Fourteenth
Amendment, i.e. show deliberate indifference, Plaintiff must prove that a
given Individual Defendant “recklessly failed to act with reasonable care to
mitigate the risk that the condition posed to [the plaintiff] even though the
defendant-official knew, or should have known, that the condition posed an
excessive risk to health or safety.”
Little, 708 F. Supp. 3d at 267 (quoting Darnell, 849 F.3d at 35). 	“Though called the
‘subjective prong,’ this determination ‘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. (quoting Darnell, 849
F.3d at 35).
As discussed above, plaintiff testified that Rodriguez attacked him without any prior
warning when Locy left Rodriguez’s cell unsecured. 	See Dkt. No. 54-8 at 27. 	“As a
general matter, surprise attacks do not suggest deliberate indifference by a corrections
officer.” 	Little, 708 F. Supp. 3d at 267 (quoting Licari v. Toulon, No. 22-CV-0148
(JMA/SIL), 2022 WL 493210, at *5 (E.D.N.Y. Feb. 17, 2022) (internal quotation marks
omitted); Rivera v. Royce, No. 19-CV-10425 (PMH), 2021 WL 2413396, at *8 (S.D.N.Y.
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June 11, 2021) (“It is well-established that prison officials cannot be deliberately indifferent
to a surprise attack.”).
Alternatively, “[p]laintiff seeks to avoid that principle by arguing that the attack was
not a surprise.” Little, 708 F. Supp. 3d at 267. Plaintiff testified that he saw Locy “make
contact with Rodriguez when he went to his [cell] door minutes prior, before [Locy] came
and unlocked [his] door.” Dkt. No. 54-8 at 43-44. Plaintiff testified that he “believe[d]” that
at the time he saw Locy “make contact with Rodriguez,” Locy “communicated with . . .
Rodriguez about the going-ons of what was about to take place.” 	Id. at 43. 	Plaintiff
argues that Rodriguez was “purposely let out of his cell area and moving restraints by
[Locy] during chow time to attack me physically to further injure my ribs.” Dkt. No. 65 at
12-13.
In support of their motion, defendants submit Locy’s sworn declaration that he “was
not aware of any previous altercations between plaintiff and . . . 	Rodriguez” and “later
learned that . . . Rodriguez used a piece of paper or cloth to block the mechanism on his
cell door to prevent it from closing.” 	Dkt. No. 54-10 at 2-3. 	Defendants also submit a
copy of the February 21, 2023, incident report stating that “Rodriguez . . . propped his
[segregated] area door open so that it would not lock correctly.” Dkt. No. 54-5 at 8.
The undersigned concludes that plaintiff’s argument regarding Locy’s conduct
immediately prior to plaintiff’s incident with Rodriguez amounts to a conclusory allegation
unsupported by any additional evidence, admissible or otherwise. 	See Hicks, 593 F.3d
at 166. Although plaintiff testified that he saw Locy go to Rodriguez’s cell door and make
contact with Rodriguez immediately prior to the February 21, 2023, assault, his bare
testimony, albeit conflicting with Locy’s documentary evidence, does not amount to a
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genuine question of material fact as to whether the lock on Rodriguez’s cell door was not
functioning properly, and, thus, Locy could not have intentionally let Rodriguez out of his
cell so that he could assault plaintiff. See Wright, 554 F.3d at 266. Plaintiff’s opposition
to defendant’s motion does not address the contention that Rodriguez caused the lock on
his cell door to malfunction. 	See generally Dkt. No. 65. 	As to plaintiff’s testimonial
allegations, plaintiff does not state that he heard what, if anything, Locy told Rodriguez
when Locy passed Rodriguez’s cell door. 	He does not explain what “the going-ons”
means in relation to this set of facts or specify what instructions Locy allegedly gave to
Rodriguez. 	Similarly, plaintiff does not explain how he knew Locy’s state of mind at the
time Rodriguez’s cell was unlocked, or how he determined that Locy state of mind was
reckless or intentional.
This Court has previously granted summary judgment where the plaintiffs’ bare
testimonies were refuted by sworn affidavits and documentary evidence. See Johnson v.
Brown, No. 9:09-CV-0002 (GTS/DEP), 2011 WL 1097864, at *1, 7 (N.D.N.Y. Mar. 22,
2011) (granting the defendants’ motion for summary judgment where the “Plaintiff's only
evidence establishing the occurrence of the assault . . . is his self-contradictory,
incomplete deposition testimony that is wholly unsupported by the record” and the
defendants’ testimony, which was corroborated by documentary evidence, refuted the
plaintiff’s unsupported testimony); see also Louis-Charles v. Baker, No. 9:16-CV-1417
(MAD/CFH), 	2018 	WL 	5728054, 	at 	*10 	(N.D.N.Y. 	July 	30, 	2018), 	report 	and
recommendation 	adopted 	sub 	nom. 	Louis-Charles 	v. 	Barker, 	No. 	9:16-CV-1417
(MAD/CFH), 2018 WL 4299982 (N.D.N.Y. Sept. 10, 2018) (granting summary judgment
where the plaintiff “failed to produce evidence, aside from his conclusory allegations”).
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Therefore, the undersigned concludes that plaintiff fails to satisfy the subjective
prong. 	See Little, 708 F. Supp. 3d at 267 (quoting Darnell, 849 F.3d at 35). 	“Plaintiff
identifies no evidence in the record that would allow a reasonable jury to find that [Locy]
should have known [that he] faced an impending attack from [Rodriguez] (or any other
inmate).” 	Little, 708 F. Supp. 3d at 268 (additional citations omitted); Funches v. Miller,
No. 9:20-CV-0676 (MAD/CFH), 2023 WL 2864818, at *4 (N.D.N.Y. Jan. 3, 2023), report
and 	recommendation 	adopted, 	No. 	9:20-CV-0676 	(MAD/CFH), 	2023 	WL 2495832
(N.D.N.Y. Mar. 14, 2023) (citing Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010)
(quoting Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004) (“It is well
established that, ‘in determining the appropriateness of a grant of summary judgment, ...
the district court ... may rely only on admissible evidence.’ ”))). 	Accordingly, because
plaintiff has failed to establish either the objective or subjective prongs,8 the undersigned
recommends granting that part of defendants’ motion and dismissing plaintiff’s Fourteenth
Amendment failure to protect claim against Locy with prejudice.
C. Fourteenth Amendment Excessive Force
“A pretrial detainee need not demonstrate that an officer accused of using
excessive force was subjectively aware that his use of force was unreasonable.” Oteri v.
Palmatier, No. 9:23-CV-0986 (AMN/ML), 2025 WL 2391626, at *8 (N.D.N.Y. May 29,
2025), report and recommendation adopted, No. 9:23-CV-0986 (AMN/ML), 2025 WL
2047980 (N.D.N.Y. July 22, 2025) (citing Kingsley v. Hendrickson, 576 U.S. 389, 396
(2015)). 	“Rather, to prove an excessive force claim, a pretrial detainee must show . . .
8 As plaintiff fails to establish his burden of demonstrating that his Fourteenth Amendment rights were
violated, it is unnecessary to address defendants’ alternative argument that Locy is entitled to qualified
immunity. See Dkt. No. 54-12 at 14-15.
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only that the officers use of that force was objectively unreasonable.” 	Id. (quoting
Kingsley, 576 U.S. at 391-92) (internal quotation marks omitted).
In making that objective determination, the court must view the matter from
“the perspective of a reasonable officer on the scene,” and consider “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 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. quoting Kingsley, 576 U.S. at 397).
Here, the parties agree that Locy broke up the fight between plaintiff and Rodriguez
on February 22, 2023. See Dkt. No. 54-11 at 3; Dkt. No. 65 at 10. The parties disagree
as to whether Locy used any force while breaking up the fight. Plaintiff claims that while
breaking up the fight, Locy punched him in the upper chest with his “back-arm elbow,”
and the force of the punch caused plaintiff to hit a door, kiosk component, or wall. 	Dkt.
No. 54-8 at 31. Dkt. No. 54-2 at 13. Plaintiff testified that either Locy’s punch or the force
of hitting the door, kiosk component, or wall broke his ribs. See id. at 32, 37. Plaintiff also
testified that after Locy broke up the fight, Locy redirected him to his cell. See id. at 31.
On the contrary, Locy declared that “[a]t no point in [] Plaintiff’s altercation with []
Rodriguez did [he] strike [] Plaintiff,” “[a]t no point in his efforts to redirect [] Plaintiff to his
cell did [he] strike [] Plaintiff,” and “during [his] attempts to redirect [] Plaintiff into his cell,
[] Plaintiff was actively resisting and still attempting to strike [] Rodriguez.” 	Dkt. No. 54-
10 at 3. Based on the foregoing, the undersigned concludes that there are genuine issues
of material fact as to (1) whether Locy used any level of force to break up the fight between
plaintiff and Rodriguez, (2) plaintiff’s level of resistance towards Locy while breaking up
the fight and being redirected to his cell, and (3) the extent of plaintiff’s injuries suffered
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as a result of any force Locy used upon him. 	See FED. R. CIV . P. 56(a); Anderson, 477
U.S. at 248. Without determining these facts, the undersigned cannot evaluate whether
Locy’s use of force, if any, “was objectively unreasonable.” Oteri, 2025 WL 2391626, at
*8.
The undersigned notes Locy’s argument that even if he did make contact with
Rodriguez while breaking up the fight, he is entitled to qualified immunity. 	See Dkt. No.
54-12 at 16-17. 	“Qualified immunity shields public officials from being sued for conduct
undertaken in the course of their duties so long as that conduct ‘does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.’” 	Heyliger v. Iffert, No. 9:18-CV-1113 (LEK/CFH), 2020 WL 8254418, at *13
(N.D.N.Y. Dec. 14, 2020), report and recommendation adopted sub nom. Heyliger v.
Peacock, No. 9:18-CV-1113 (LEK/CFH), 2021 WL 212821 (N.D.N.Y. Jan. 21, 2021)
(quoting Eng v. Coughlin, 858 F.2d 889, 895 (2d Cir. 1988) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982))). “However, even if the constitutional privileges are so clearly
defined that a reasonable public official would know that his actions might violate those
rights, qualified . . . immunity might still be available . . . if it was ‘objectively reasonable’
for the public official to believe that his acts did not violate those rights.” 	Id. (quoting
Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991) (citing Magnotti v. Kuntz, 918
F.2d 364, 367 (2d Cir. 1990))) (internal quotation marks omitted).
The determination of whether a government official is immune from suit is
informed by two factors, namely whether the facts alleged, taken in a light
most favorable to the plaintiff, show that the conduct at issue violated a
statutory or constitutional right, and if so, whether that right “was clearly
established at the time of the challenged conduct.”
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Heyliger, 2020 WL 8254418, at *13 (quoting Terebesi v. Torreso, 764 F.3d 217, 230 (2d
Cir. 2014) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012))). “The Supreme Court
has said that an officer's ‘conduct violates clearly established law when, at the time of the
challenged conduct, the contours of a right are sufficiently clear that every reasonable
official would have understood that what he is doing violates that right.’” 	Id. (quoting
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). 	“To this end, a plaintiff need not show a
case ‘directly on point, but existing precedent must have placed the statutory or
constitutional question beyond debate.’” Id. (quoting Terebesi, 764 F.3d at 230 (quoting
al-Kidd, 563 U.S. at 741)). “However, ‘[e]ven where the law is clearly established and the
scope of an official's permissible conduct is clearly defined, the qualified immunity
defense also protects an official if it was objectively reasonable for him at the time of the
challenged action to believe his acts were lawful.’” Id. (quoting Higazy v. Templeton, 505
F.3d 161, 169-70 (2d Cir. 2007). 	The “‘objective reasonableness’ part of the test is
satisfied if ‘officers of reasonable competence could disagree on [the legality of the
defendant's actions].’” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
As discussed above, there is a question of fact as to whether Locy used any force
upon plaintiff, and if so, the extent of such force. Without this information, judicial review
of Locy’s qualified immunity claim is frustrated because it is unclear whether plaintiff’s
constitutional rights were violated as a result of Locy’s conduct, and if so, whether Locy’s
conduct was objectively reasonable at the time he broke up the fight between plaintiff and
Rodriguez. 	See Heyliger, 2020 WL 8254418, at *13. 	Accordingly, the undersigned
recommends that defendants’ summary judgment motion be denied as to plaintiff’s
Fourteenth Amendment excessive force claim against Locy.
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D. Punitive Damages
Plaintiff’s complaint states that he is seeking “punitive damages – compensation.”
Dkt. No. 1 at 7. Defendants argue that plaintiff is not entitled to punitive damages because
plaintiff has not demonstrated that “Defendants’ violation of the Plaintiff’s constitutional
rights was intentional” or defendants’ “‘conduct [was] shown to be motivated by evil motive
or intent, or . . . involve[d] reckless or callous indifference to the federally protected rights
of others.’” 	Dkt. No. 54-12 at 18 (quoting McCardle v. Haddad, 131 F.3d 43, 53 (2d Cir.
1997)). 	Plaintiff’s opposition to defendants’ motion for summary judgment does not
address defendants’ argument or otherwise raise the issue of punitive damages. 	See
generally Dkt. No. 65.
“[I]n this District, where a non-movant has willfully failed to respond to a movant’s
properly filed and facially meritorious memorandum of law, the non-movant is deemed to
have ‘consented’ to the legal arguments contained in that memorandum under Local Rule
56.1(b).” 	Sullivan v. Snider, 8:19-CV-0129 (GTS/DJS), 2021 WL 1294595, at *10
(N.D.N.Y. Apr. 7, 2021) (citing Beers v. Gen. Motors Corp., No. 97-CV-482 (NPM/DNH),
1999 WL 325378, at *9 (N.D.N.Y. May 17, 1999)). 	“Stated another way, when a non-
movant fails to oppose a legal argument asserted by a movant, the movant may succeed
on the argument by showing that the argument possess [sic] facial merit, which has
appropriately been characterized as a ‘modest’ burden.” 	Id. (first citing N.D.N.Y. L.R.
7.1(a)(3); then citing Rusyniak v. Gensini, No. 07-CV-0279 (GTS/GHL), 2009 WL
3672105, at *1, n.1 (N.D.N.Y. Oct. 30, 2009) (collecting cases);9 then citing Este-Green
9 	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 non-
moving party’s failure to file or serve any papers as this Rule requires shall be deemed as
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v. Astrue, No. 09-CV-0722 (GTS/GHL), 2009 WL 2473509, at *2, n.3 (N.D.N.Y. Aug. 7,
2009) (collecting cases)). 	As plaintiff has failed to respond to defendants’ arguments
regarding punitive damages, the undersigned concludes that plaintiff has “consented” to
those arguments and the only issue left to resolve is whether defendants demonstrated
that they are entitled to the relief requested, here, dismissing the claim. Id.; Topliff v. Wal-
Mart Stores E. LP, No. 604-CV-0297 (GHL), 2007 WL 911891, at *7 (N.D.N.Y. Mar. 22,
2007) (“Because Plaintiff has ‘consented’ to Defendant’s argument, the only remaining
issue is whether Defendant has met its burden ‘to demonstrate entitlement to the relief
requested’ through that argument.”).
“Generally, the issue of whether to award punitive damages is an issue for the jury
to decide based on an evaluation of the plaintiff's proof of sufficiently serious misconduct.”
Spells v. Van Hoesen, No. 9:18-CV-0669 (GLS/TWD), 2022 WL 17584178, at *4 (N.D.N.Y.
Dec. 12, 2022) (quoting Picciano v. McLoughlin, 723 F. Supp. 2d 491, 506 (N.D.N.Y. 2010)
(internal quotation marks and additional citations omitted)). 	“A jury may be permitted to
award punitive damages in a § 1983 action when it finds that the defendant's violation of
federal law was intentional . . . or ‘when the defendant's conduct is shown to be motivated
by evil motive or intent, or when it involves reckless or callous indifference to the federally
protected rights of others.” McCardle, 131 F.3d at 52-53 (2d Cir. 1997) (first citing Smith
v. Wade, 461 U.S. 30, 51 (1983); then quoting Smith, 461 U.S. at 56); Spells, 2022 WL
17584178, at *4 (quoting Picciano, 723 F. Supp. 2d at 506 (“Punitive damages may be
consent to the granting or denial of the motion, as the case may be, unless good cause is
shown.
N.D.N.Y. L.R. 7.1(a)(3).
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awarded when the plaintiff has shown that defendant's conduct was motivated by evil
motive or intent, or when it involves callous indifference to federally protected rights of
others.”).
The 	undersigned 	previously 	concluded 	Locy 	had 	not 	met 	his 	“burden 	of
demonstrating that ‘there is no genuine dispute as to any material fact’” with respect to
plaintiff’s claim of excessive force.10 Spells, 2022 WL 17584178, at *4 (quoting FED. R.
CIV . P. 56(a)); see supra at 26-29. Although Locy claims that he did not use any force
upon plaintiff, and alternatively, any use of force was reasonable given the circumstances,
“at this stage, construing all inferences in the light most favorable to [plaintiff], a jury could
reasonably 	find 	that 	[plaintiff] 	was 	compliant 	and” 	Locy 	struck 	plaintiff 	“without
justification.” Id. Therefore, the undersigned concludes that defendants’ argument as to
punitive damages lacks “facial merit.” Sullivan, 2021 WL 1294595, at *10. Accordingly,
the undersigned recommends that defendants’ motion for summary judgment be denied
as to plaintiff’s punitive damages claim.
V. Conclusion
WHEREFORE, for the reasons set forth herein, it is hereby:
RECOMMENDED, that defendants’ motion for summary judgment (Dkt. No. 57)
be GRANTED IN PART AND DENIED IN PART as follows:
1) 	Insofar 	as 	defendants 	seek 	dismissal 	of 	plaintiff’s 	First Amendment
retaliation claim against Vaughn and Fourteenth Amendment failure to protect
10 As discussed above, the undersigned recommended granting defendants’ motion as to plaintiff’s First
Amendment retaliation claim against Vaughn and Fourteenth Amendment failure to protect claim against
Locy. See supra at 19, 26. Therefore, the undersigned concludes that any remaining claim for punitive
damages would stem from plaintiff’s Fourteenth Amendment excessive force claim against Locy. See supra
at 26-29; Henkels & McCoy Grp., Inc. v. Verizon Sourcing, LLC, No. 21-CV-9576, 2022 WL 1185817, at *5
(S.D.N.Y. Apr. 21, 2022) (“‘Punitive damages’ is not a separate cause of action – it is a form of relief – and
motions to dismiss are properly directed to claims, not to forms of relief.”).
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claim against Locy, such motion be GRANTED, and such claims be DISMISSED
with prejudice;
2) 	Insofar as defendants seek dismissal of plaintiff’s Fourteenth Amendment
excessive force claim against Locy, such motion be DENIED; and
3) 	Insofar as defendants seek dismissal of plaintiff’s punitive damages claim,
such motion be DENIED; and it is
ORDERED, that the Clerk serve a copy of this Report-Recommendation and Order
on all parties in accordance with Local Rules.
IT IS SO ORDERED.
Pursuant to U.S.C. §636(b)(1) and Local Rule 72.1(c), 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 (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Servs., 892
F.2d 15 (2d Cir. 1989)); 28 U.S.C. §636(b)(1); FED. R. CIV P. 6(a), 6(e), 72.11
Dated: February 10, 2026
Albany, New York
11 If you are proceeding pro se and are 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 the Report-Recommendation & Order was mailed to you to serve and file objections. See F ED. R. C IV .
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. See id.
§ 6(a)(1)(C).
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