Parsons v. City of New York et al

Filing 7

MEMORANDUM & ORDER: Plaintiff's 2 application to proceed in forma pauperis is granted. The Court dismisses the claims against the City of New York, allows Plaintiff's claims against the officers to proceed and grants Pla intiff leave to file an amended complaint within 30 days of this Memorandum and Order as to the City of New York. Accordingly, the Court dismisses the claims against the City of New York for failure to state a claim. The Clerk of Court shall mail a copy of this Memorandum and Order and the Complaint to the Corporation Counsel of the New York City Law Department. The Court hereby orders Corporation Counsel to attempt to ascertain the full names and the badge numbers of the John Doe E.S.U. o fficers who were involved in the alleged events on 11/2/2014. Corporation Counsel shall provide this information to the Court within 45 days of the date of this Memorandum and Order. Once Corporation Counsel has provided the requested information f or the officers, the Clerk of Court is directed to amend the docket to reflect that information and to issue summonses against the officers. The United States Marshals Service is directed to serve the officers once summonses are issued. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. SO ORDERED by Judge Margo K. Brodie, on 6/19/2017. W/Attachments: # 1 Copies of all unpublished decisions cited in this Order. C/mailed. (Latka-Mucha, Wieslawa)

Al-Bukhari v. Semple, Slip Copy (2017)

Al-Bukhari's complaint alleges the following facts:
2017 WL 2125746
Only the Westlaw citation is currently available.
United States District Court,
D. Connecticut.
Ja Qure AL-BUKHARI, Plaintiff,
v.
Scott SEMPLE, et al., Defendants
No. 3:16-cv-1428 (SRU)
|
Signed 05/16/2017
Attorneys and Law Firms
Ja Qure Al-Bukhari, Somers, CT, pro se.

INITIAL REVIEW ORDER
Stefan R. Underhill, United States District Judge
*1 Ja Qure Al-Bukhari, incarcerated and pro se,
has filed a complaint pursuant to 42 U.S.C. § 1983
against Commissioner Scott Semple, Warden Anne
Cournoyer, Warden William Mulligan, Lieutenant Tuttle,
Lieutenant Porylo, Lieutenant Guimond, Lieutenant
Bradley, Correction Officer Wemmel, Correction Officer
Schmidt, Correction Officer McCarthy, Correction
Officer Bogan, Correction Officer John Doe 1, Correction
Officer John Doe 2, Correction Officer John Doe 3,
Nurse Nancy Hill, and Nurse Kristen Carabine, all of
whom are employees of the Connecticut Department of
Correction. Al-Bukhari is suing all sixteen defendants
in their individual and official capacities for acting with
deliberate indifference to his medical needs, in violation
of the Eighth and Fourteenth Amendments to the United
States Constitution. Al-Bukhari is also suing defendants
Porylo, Doe 1, Doe 2, and Doe 3 in their individual and
official capacities for excessive force under the Eighth
and Fourteenth Amendments, denial of due process under
the Fifth and Fourteenth Amendments, and common
law assault. Al-Bukhari seeks declaratory, injunctive, and
monetary relief against all defendants for the alleged
violations. For the reasons set forth below, the complaint
will be dismissed in part.

I. Factual Allegations

Al-Bukhari was at all relevant times incarcerated
at Northern Correctional Institution in Somers,
Connecticut. The Department of Correction (“DOC”) has
classified Al-Bukhari as a seriously mentally ill inmate,
who has been diagnosed with several mental disorders,
including bipolar disorder, post-traumatic stress disorder,
attention deficit hyperactivity disorder, and antisocial
personality disorder. Al-Bukhari suffers from suicidal
ideations and has been taking medication to treat his
ailments since childhood. He often engages in acts of selfharm.
On March 9, 2016, Al-Bukhari covered his cell window
in violation of DOC policy, which prompted a correction
officer to notify the lieutenant's office. By the time
Lieutenants Porylo and Guimond and other correctional
staff responded to the call and arrived at Al-Bukhari's cell,
Al-Bukhari had removed the covering from the window.
Nevertheless, the lieutenants ordered one correctional
officer to activate a handheld camcorder and other
officers to handcuff Al-Bukhari, but Al-Bukhari refused.
Lieutenant Porylo also ordered Al-Bukhari, who was
naked at the time, to clothe himself, but Al-Bukhari
refused to do so. His refusal prompted Porylo to spray
a chemical agent on his genital area and buttocks until
he submitted to being handcuffed. Porylo and Correction
Officers Doe 1, Doe 2, and Doe 3 then entered his cell,
subdued him and restrained him in handcuffs.
After restraining Al-Bukhari, the officers attempted to
clothe him with underwear but placed the underwear on
him improperly. When the officers escorted Al-Bukhari
out of his cell, the combination of the improper placement
of his underwear and a wet floor caused Al-Bukhari to
lose his balance and start to fall. As he tried to regain his
balance, Doe 1, Doe 2, and Doe 3 “slammed” Al-Bukhari
on the ground and Porylo again sprayed chemicals on
his back, arms, and the back of his head. Other inmates
housed in the area witnessed the event and ridiculed AlBukhari, whose genitalia was exposed due to the improper
placement of his underwear.
*2 While on the ground and subdued, Doe 1, Doe 2,
and Doe 3 attempted to turn Al-Bukhari's head so that
Porylo could spray him in the face, but were unsuccessful.
The officers repeatedly yelled at Al-Bukhari to “stop
resisting!” even though Al-Bukhari was not doing so.

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

1

Al-Bukhari v. Semple, Slip Copy (2017)

After the struggle, the officers picked up Al-Bukhari from
the ground and escorted him to the medical screening
room. There, Al-Bukhari requested a shower to wash off
the chemical agent with which Porylo had sprayed him,
but Porylo and Nurse Carabine denied his request, which
caused him to suffer from intermittent burning of his back,
arms, genitals and buttocks.
At some point, Al-Bukhari “threatened to self-harm by
banging his head on hard surfaces.” This prompted
Porylo to order the placement of Al-Bukhari in “fourpoint restraints” for several hours, during which AlBukhari continued to suffer from intense burning from
the chemical agent. Afterward, Porylo and the officers
returned Al-Bukhari to his cell, removed the “four-point
restraints,” and placed “in-cell restraints” on him. AlBukhari was denied soap, water and toilet paper to clean
himself.
The next day, while still restrained in his cell, Al-Bukhari
defecated on himself. He reported what he had done to
Correction Officers Wemmel, Schmidt, McCarthy and
Bogan and requested medical services and the opportunity
to clean himself, but the officers denied his requests.
Despite multiple tours of Al-Bukhari's cell, Wemmel,
Schmidt, McCarthy and Bogan never reported that AlBukhari had defecated on himself. Unable to obtain
assistance, Al-Bukhari covered his cell window, which
was stained with feces. This prompted Officer Bogan
to notify Lieutenant Tuttle, who came to Al-Bukhari's
cell. Al-Bukhari notified Tuttle of his problem and again
requested medical services, but Tuttle denied his request
and told Al-Bukhari to “cut the shit out.” In addition to
denying his medical request, Tuttle, Wemmel, Schmidt,
McCarthy, and Bogan “taunted and mocked” Al-Bukhari
for defecating on himself. Eventually, a mental health
social worker came to Al-Bukhari's cell for unrelated
reasons, learned of his situation, and assured him that he
would notify the lieutenant's office.
A short time later, Lieutenants Bradley and Guimond
came to Al-Bukhari's cell to address the situation.
Initially, Bradley denied Al-Bukhari's request for a shower
and medical services, and Al-Bukhari began banging his
head on the cell door. Officers again brought Al-Bukhari
to the medical unit and permitted him to take a shower but
denied him adequate soap to wash off the chemical agent,
which was still causing him pain.

Al-Bukhari was physically restrained for a total of thirtysix hours. During that time, he complained to Nurses Hill
and Carabine that the restraints were causing him muscle
spasms and pain in his neck, back and shoulders due to his
degenerative joint disease, but Hill and Carabine informed
him that “there [ ] [was] nothing they [could] do because
[Al-Bukhari] was in custody restraints.”

II. Relevant Legal Principles
Under section 1915A of Title 28 of the United States Code,
I must review prisoner civil complaints and dismiss any
portion of the complaint that is frivolous or malicious,
that fails to state a claim upon which relief may be granted,
or that seeks monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915A. Although
detailed allegations are not required, the complaint must
include sufficient facts to afford the defendants fair notice
of the claims and the grounds upon which they are
based and to demonstrate a right to relief. Bell Atlantic
v. Twombly, 550 U.S. 544, 555-56 (2007). Conclusory
allegations are not sufficient. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). The plaintiff must plead “enough facts
to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. Nevertheless, it is wellestablished that “[p]ro se complaints ‘must be construed
liberally and interpreted to raise the strongest arguments
that they suggest.’ ” Sykes v. Bank of Am., 723 F.3d 399,
403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see also Tracy v.
Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (discussing
special rules of solicitude for pro se litigants).

III. Analysis
A. Claims Against Defendants in their
Official Capacities for Monetary Damages
*3 To the extent Al-Bukhari is suing all sixteen
defendants in their official capacities for monetary
damages, such claims are barred by the Eleventh
Amendment. See Kentucky v. Graham, 473 U.S. 159,
165-67 (1985) (Eleventh Amendment protects state
officials sued for damages in their official capacities);
Quern v. Jordan, 440 U.S. 332, 342 (1979) (Congress
did not intend for section 1983 claims to override state's
Eleventh Amendment immunity). All claims for monetary
damages against the defendants in their official capacities
are, therefore, dismissed.

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

2

Al-Bukhari v. Semple, Slip Copy (2017)

B. Eighth Amendment Claims
A prison official's deliberate indifference to a prisoner's
medical needs violates the Eighth Amendment's
protection against cruel and unusual punishment. Estelle
v. Gamble, 429 U.S. 97, 104 (1976). To state a claim
for deliberate indifference to a serious medical need,
the plaintiff must show both that his medical need was
serious and that the defendants acted with a sufficiently
culpable state of mind. See Smith v. Carpenter, 316 F.3d
178, 184 (2d Cir. 2003) (citing Estelle, 429 U.S. at 105).
There are objective and subjective components to the
deliberate indifference standard. Hathaway v. Coughlin,
37 F.3d 63, 66 (2d Cir. 1994). Objectively, the alleged
deprivation must be “sufficiently serious,” meaning that
it must be “one that may produce death, degeneration, or
extreme pain.” Hathaway v. Coughlin¸ 99 F.3d 550,
553 (2d Cir. 1996) (internal quotation marks omitted).
Subjectively, the defendants must have been actually
aware of a substantial risk that the inmate would suffer
serious harm as a result of his actions or inactions. Id.;
Salahuddin v. Goord, 467 F.3d 263, 280-81 (2d Cir. 2006).
A claim that a prison official acted negligently with respect
to the prisoner's medical needs does not rise to the level of
deliberate indifference and is not cognizable under section
1983. Hathaway v. Coughlin, 99 F.3d at 553; Salahuddin v.
Goord, 467 F.3d at 280.
Al-Bukhari alleges that all sixteen defendants violated
his Eighth Amendment right against cruel and unusual
punishment by acting with deliberate indifference to his
medical needs in various ways. I will address each Eighth
Amendment claim in turn.

1. Deliberate Indifference Claim Against Commissioner
Semple, Warden Cournoyer, and Warden Mulligan
Al-Bukhari alleges that Commissioner Semple, Warden
Cournoyer, and Warden Mulligan knew about his
medical and mental health needs because they “were
provided with [his] medical and psychological records”
and, nevertheless, “permitted subordinates to obtain
and use high[ly] concentrated chemical agents generally
against inmates knowing that [they] cause[ ] unnecessary
burning.” He also alleges that these three defendants
“knew that seriously ill inmates such as [Al-Bukhari]

should not be placed in in-cell restraints absent
professional judgment and subject to medical supervision”
and permitted subordinates to place him in such
restraints for unnecessarily long periods of time,
thereby exacerbating his degenerative joint disease and
causing him constant pain. Al-Bukhari claims that the
culmination of these actions amounted to deliberate
indifference to medical needs, in violation of the Eighth
Amendment to the United States Constitution.
“It is well settled ... that personal involvement of
defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.”
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (internal
quotation marks omitted); see also Johnson v. Glick, 481
F.2d 1028, 1034 (2d Cir. 1973) (doctrine of respondeat
superior does not suffice for claim of monetary damages
under § 1983). A plaintiff who sues a supervisory official
for monetary damages must allege that the official was
“personally involved” in the constitutional deprivation
in one of four ways: (1) the official directly participated
in the deprivation; (2) the official learned about the
deprivation through a report or appeal and failed to
remedy the wrong; (3) the official created or perpetuated
a policy or custom under which unconstitutional practices
occurred; (4) the official was grossly negligent in managing
subordinates who caused the unlawful condition or event;
or (5) the official failed to act on information indicating
that unconstitutional acts were occurring. Wright, 21 F.3d
at 501; Hernandez v. Keane, 341 F.3d 137, 145 (2d Cir.
2003).
*4 Construing his complaint liberally, Al-Bukhari has
stated a plausible Eighth Amendment claim against
Commissioner Semple, Warden Cournoyer, and Warden
Mulligan in their official capacities. Al-Bukhari does
not allege that these three defendants participated in or
failed to remedy the wrongful acts on March 9 and 10,
2016. He also does not allege that they were grossly
negligent in managing their subordinate officers or failed
to act on information that their subordinate officers
were engaging in unconstitutional behavior. Al-Bukhari
does allege, however, that these defendants perpetuated
an unconstitutional policy of using harmful chemical
agents against inmates and placing inmates with medical
problems in “in-cell” restraints for unnecessarily long
periods of time and he requests a change in such policy as
a form of injunctive relief. For that reason, Al-Bukhari's
allegations sufficiently state an Eighth Amendment claim

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

3

Al-Bukhari v. Semple, Slip Copy (2017)

against Commissioner Semple, Warden Cournoyer, and
Warden Mulligan in their official capacities. However,
because none of these three defendants were allegedly
involved in or knew about the specific incidents about
which Al-Bakhari is complaining, the claims against them
in their individual capacities are dismissed.

2. Deliberate Indifference Claim
Against Remaining Defendants
Al-Bukhari sufficiently alleges that the remaining
defendants were personally involved in the events of
March 9 and 10, 2016, which gave rise to Eighth
Amendment violations. He alleges that he informed the
correctional officers and nurses that he was suffering
from extreme pain as a result of being sprayed with
a chemical agent and the staff repeatedly denied his
requests for an adequate shower to clean himself and
decontaminate the agent. He also alleges that the staff
denied his request to clean himself after he had defecated
on himself in his cell. I conclude that Al-Bukhari has
alleged sufficient personal involvement of the correctional
officers and nurses in the events of March 9 and 10,
2016, and has stated a plausible claim of deliberate
indifference to medical needs against those defendants
in their individual [and official] capacities. Thus, AlBukhari's deliberate indifference claim may proceed
against defendants Tuttle, Porylo, Guimond, Bradley,
Wemmel, Schmidt, McCarthy, Bogan, Hill, Carabine, and
Does 1-3 1 in their individual capacities.

3. Excessive Force Claim Against Lieutenant Porylo,
Officer Doe 1, Officer Doe 2, and Officer Doe 3
Al-Bukhari alleges that Lieutenant Porylo and Correction
Officers Doe 1, Doe 2, and Doe 3 violated his
Eighth Amendment protection against cruel and unusual
punishment by using excessive physical force against him
in their efforts to remove him from his cell. His allegation
constitutes a plausible Eighth Amendment claim.
“The use of excessive force against a prisoner may
constitute cruel and unusual punishment in violation of
Eighth Amendment.” Moore v. Murray, 2017 WL 396139,
at *3 (D. Conn. Jan. 27, 2017) (citing Wilkins v. Gaddy,
559 U.S. 34 (2010)). The inquiry into determining whether
an excessive force claim exists “is not whether a certain

quantum of injury was sustained but rather whether force
was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.”
Id. (internal quotation marks omitted).
Here, Al-Bukhari alleges that, after placing him in
handcuffs and while removing him from his cell,
Lieutenant Porylo and the three unnamed correction
officers “slammed” Al-Bukhari on the ground and
sprayed him with a harmful chemical agent, even though
Al-Bukhari had not been resisting their efforts to escort
him out of the cell. Al-Bukhari has stated a plausible
excessive force claim against these four defendants in their
individual capacities for monetary damages.

C. Fifth Amendment Claim
Al-Bukhari alleges that Lieutenant Porylo and the three
unnamed correction officers also violated his Fifth
Amendment right to due process by subjecting him to
“unreasonable bodily restraints.” The Fifth Amendment
applies to the federal government, not to the states.
See Dusenbery v. United States, 534 U.S. 161, 167
(2002) (Fifth Amendment due process applies to federal
government actors whereas Fourteenth Amendment due
process applies to state actors); Ambrose v. City of
New York, 623 F. Supp. 2d 454, 466-67 (S.D.N.Y.
2009) (due process claim against city properly brought
under Fourteenth Amendment, not Fifth Amendment).
Al-Bukhari has not raised a claim against any federal
government representative. Thus, his Fifth Amendment
claims must be dismissed.

D. Fourteenth Amendment Claims
*5 Al-Bukhari has raised substantive due process
claims under the Fourteenth Amendment in conjunction
with his Eighth Amendment claims for deliberate
indifference to medical needs and excessive force.
Because Al-Bukhari's claims are covered by the Eighth
Amendment protection against cruel and unusual
punishment, his substantive due process claims under
the Fourteenth Amendment are duplicative and,
therefore, subject to dismissal. See Graham v. Connor,
490 U.S. 386, 395 (1989) (generalized notion of
substantive due process under Fourteenth Amendment
not applicable where other amendment provides explicit

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4

Al-Bukhari v. Semple, Slip Copy (2017)

textual source of constitutional protection against
alleged government conduct). Therefore, Al-Bukhari's
Fourteenth Amendment claims are dismissed.

E. State Law Claim
In addition to his excessive force claim, Al-Bukhari also
alleges that Lieutenant Porylo and Correction Officers
Doe 1, Doe 2, and Doe 3 committed common law
assault against him “by subjecting [him] to arbitrary
bodily restraints,” causing him mental and physical harm.
Pursuant to United Mine Workers v. Gibbs, 383 U.S. 715,
725 (1966), the district court can exercise supplemental
jurisdiction over a state law claim if:
(1) there is a claim arising under
the federal constitution or federal
laws; (2) the relationship between
the federal claim and the state
claim permits the conclusion that
the entire action comprises but one
constitutional case; (3) the federal
claim has substance sufficient to
confer subject matter jurisdiction
on the court; and (4) the state
and federal claims derive from a
common nucleus of operative fact.
Miller v. Lovett, 879 F.2d 1066, 1071 (2d Cir. 1989),
abrogated on other grounds, Graham, 490 U.S. at 386. I
can exercise supplemental jurisdiction over Al-Bakhari's
state-law assault claim because it arises out of the same
set of facts as his Eighth Amendment claims of deliberate
indifference to medical needs and excessive force against
the same defendants. See id. at 1073 (court should exercise
supplemental jurisdiction over state common law assault
claim when federal constitutional claim of excessive force
and assault claim are so tightly interwoven that decision
on former will collaterally estop litigation of latter).
At this stage of the proceeding, it appears that AlBukhari's Eighth Amendment claims and assault claim are
sufficiently related in fact and, therefore, I will permit the
common law assault claim to proceed against Lieutenant
Porylo and the three unnamed correction officers in their
individual capacities.

F. Declaratory Relief
As a remedy for his constitutional claims, Al-Bukhari
seeks “[a] declaratory judgment that the actions of [the]
[d]efendants violated the ... Eighth ... Amendment[ ]
to the United States Constitution as well [as] the state
law.” Declaratory relief serves to “settle legal rights and
remove uncertainty and insecurity from legal relationships
without awaiting a violation of that right or a disturbance
of the relationship.” Colabella v. American Institute of
Certified Public Accountants, 2011 WL 4532132, at *22
(E.D.N.Y. Sept. 28, 2011) (citations omitted). Declaratory
relief operates prospectively to enable parties to adjudicate
claims before either side suffers great damages. See In re
Combustible Equip. Assoc., 838 F.2d 35, 37 (2d Cir. 1988).
Al-Bukhari's complaint contains a request for injunctive
relief, which he will be permitted to pursue against
Commissioner Semple, Warden Cournoyer, and Warden
Mulligan, in their official capacities. He has not identified
any other prospective legal relationships or issues that
require resolution via declaratory relief. Thus, his request
for declaratory relief based on past conduct is dismissed
pursuant to 28 U.S.C. § 1915A(b)(1). See Camofi Master
LDC v. College P'ship, Inc., 452 F. Supp. 2d 462, 480
(S.D.N.Y. 2006) (concluding that claim for declaratory
relief that is duplicative of adjudicative claim underlying
action serves no purpose).

IV. Conclusion
*6 It is hereby ordered that:
(1) The claims for monetary damages against all
defendants in their official capacities are DISMISSED
pursuant to 28 U.S.C. § 1915A(b)(2). The Fifth
and Fourteenth Amendment claims are DISMISSED
pursuant to 28 U.S.C. § 1915A(b)(1). The Eighth
Amendment claim shall proceed against Commissioner
Semple, Warden Cournoyer, and Warden Mulligan only
in their official capacities for injunctive relief. The Eighth
Amendment claim for deliberate indifference to medical
needs shall proceed against each remaining defendant
in their individual capacities for monetary relief. The
Eighth Amendment claim for excessive force shall proceed
against Lieutenant Porylo and Correction Officers John
Doe 1, John Doe 2, and John Doe 3 (if their names are
discovered) in their individual capacities for monetary
relief. The common law assault claim shall proceed against

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

5

Al-Bukhari v. Semple, Slip Copy (2017)

Lieutenant Porylo and Correction Officers John Doe
1, John Doe 2, and John Doe 3 (if their names are
discovered) in their individual capacities for monetary
relief. Al-Bukhari's request for declaratory relief is
DISMISSED.
(2) Within twenty-one (21) days of this Order, the U.S.
Marshals Service shall serve the summons, a copy of
the complaint and this order on defendants Semple,
Cournoyer, and Mulligan in their official capacities by
delivering one copy of the necessary documents in person
to the Office of the Attorney General, 55 Elm Street,
Hartford, CT 06141.
(3) The Clerk shall verify the current work addresses for
defendants Tuttle, Porylo, Guimond, Bradley, Wemmel,
Schmidt, McCarthy, Bogan, Hill, and Carabine with the
Department of Correction Office of Legal Affairs, mail
a waiver of service of process request packet containing
the complaint to each defendant at the confirmed address
within twenty-one (21) days of this Order, and report to
the court on the status of the waiver request on the thirtyfifth (35) day after mailing. If any defendant fails to return
the waiver request, the Clerk shall make arrangements for
in-person service by the U.S. Marshals Service on him or
her, and the defendant shall be required to pay the costs
of such service in accordance with Fed. R. Civ. P. 4(d).
(4) Because Al-Bukhari has not identified Correctional
Officers John Doe 1, John Doe 2, and John Doe 3 by
name, the Clerk is not able to serve a copy of the complaint
on those defendants in their individual capacities. AlBukhari must, within ninety (90) days of the date of this

order, conduct discovery and file a notice indicating the
first and last name of those three defendants. If AlBukhari files the notice, the Court will direct the Clerk to
effect service of the complaint on those defendants in their
individual capacities. If Al-Bukhari fails to identify those
defendants within the time specified, the claims against
them will be dismissed pursuant to Fed. R. Civ. P. 4(m).
(5) Defendants Semple, Cournoyer, Mulligan, Tuttle,
Porylo, Guimond, Bradley, Wemmel, Schmidt,
McCarthy, Bogan, Hill, and Carabine shall file their
response to the complaint, either an answer or motion to
dismiss, within sixty (60) days from the date the notice of
lawsuit and waiver of service of summons forms are mailed
to them. If they choose to file an answer, they shall admit
or deny the allegations and respond to the cognizable
claims recited above. They may also include any and all
additional defenses permitted by the Federal Rules.
*7 (6) Discovery, pursuant to Fed. R. Civ. P. 26-37, shall
be completed within six months (180 days) from the date
of this order. Discovery requests should not be filed with
the court.
(7) All motions for summary judgment shall be filed within
seven months (210 days) from the date of this order.
SO ORDERED at Bridgeport, Connecticut this 16th day
of May 2017.

All Citations
Slip Copy, 2017 WL 2125746

Footnotes

1

Al-Bukhari's claims against the three unnamed correction officers (John Doe 1, John Doe 2, and John Doe 3) will only
proceed if he complies with this Court's order of ascertaining their first and last names in discovery. See Order # 4, infra
at 13.

End of Document

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6

Brown v. Banks, Not Reported in F.Supp.2d (2008)

2008 WL 3833227
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Jamel BROWN, Plaintiff,
v.
C.O. J. BANKS, et al., Defendant.
No. 06 Civ. 14304(LTS)(HBP).
|
Aug. 14, 2008.

OPINION AND ORDER

the district judge should first determine whether the
indigent's position seems likely to be of substance.”)
(internal quotation marks omitted).
Although I am willing to assume plaintiff's financial
inability to retain counsel and that by contacting one law
firm he has made sufficient efforts on his own to secure
counsel, his current application establishes none of the
other elements relevant to an application for counsel.
In response to the question on the form motion for
counsel that asks plaintiff to explain why he feels he
needs a lawyer, plaintiff stated, “To reassure professional
guidance.” The need for guidance is not sufficient. If the
need for guidance were sufficient to warrant adding a case
to the list circulated to the Pro Bono Panel, nearly every
pro se case would be added to that list.

PITMAN, United States Magistrate Judge.
*1 By motion dated January 10, 2008, (Docket Item
27), plaintiff, who is incarcerated, moves for pro bono
counsel. 1 For the reasons set forth below, the motion is
denied without prejudice to renewal.
The factors to be considered in ruling on a motion
for pro bono counsel are well settled and include “the
merits of plaintiff's case, the plaintiff's ability to pay for
private counsel, [plaintiff's] efforts to obtain a lawyer,
the availability of counsel, and the plaintiff's ability to
gather the facts and deal with the issues if unassisted by
counsel.” Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d
Cir.1986). Of these, “[t]he factor which command[s] the
most attention [is] the merits.” Id. Accord Odom v. Sielaff,
90 Civ. 7659(DAB), 1996 WL 208203 at *1 (S.D.N.Y.
Apr. 26, 1996). As noted by the Court of Appeals:
Courts do not perform a useful
service if they appoint a volunteer
lawyer to a case which a private
lawyer would not take if it were
brought to his or her attention.
Nor do courts perform a socially
justified function when they request
the services of a volunteer lawyer for
a meritless case that no lawyer would
take were the plaintiff not indigent.
Cooper v. A. Sargenti Co., supra, 877 F.2d at 174.
See also Hendricks v. Coughlin, 114 F.3d 390, 392 (2d
Cir.1997) (“In deciding whether to appoint counsel ...

Although it is, of course, impossible to assess fully the
merits of the case at this stage, it also appears from the
face of the complaint that plaintiff will probably face
substantial difficulty in succeeding in this case. Plaintiff
alleges that, after he disobeyed an order to remove his
jacket, the defendants sprayed him with mace, kicked and
punched him, threw him to the floor, and handcuffed
him. Plaintiff claims to have suffered numbness in his
hand and a swollen ankle. It appears the plaintiff will
confront several difficulties in litigating his case because:
(1) prison guards are given some leeway in using force,
especially when a prisoner disobeys an order, (2) the use of
mace is not necessarily excessive force, (3) the occurrence
of minor injuries because of tight handcuffs does not
necessarily imply excessive force was used, and (4) there
are no uninterested witnesses to the incident.
*2 Even though the Supreme Court has held that
a significant injury is not necessary for an Eighth
Amendment claim, Hudson v. McMillian, 503 U.S. 1, 9
(1992), “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.” Johnson v. Glick, 481
F.2d 1028, 1033 (2d Cir.1973) overruled on other grounds,
Graham v. Connor, 490 U.S. 386, 397 (1989).
To establish a constitutional violation under the Eighth
Amendment, an inmate must meet both an objective
and a subjective requirement. To meet the objective
requirement, the alleged violation must be “sufficiently
serious” by objective standards. See Farmer v. Brennan,
511 U.S. 825, 834, 114 S.Ct. 1970, 128 L . Ed.2d

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

1

Brown v. Banks, Not Reported in F.Supp.2d (2008)

811 (1994) (quoting Wilson v. Seiter, 501 U.S. 294,
298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). The
objective component is “context specific, turning upon
‘contemporary standards of decency.’ “ Blyden, 186
F.3d at 263 (quoting Hudson v. McMillian, 503 U.S.
1, 8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (quoting
Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L .
Ed.2d 251 (1976))). To meet the subjective requirement,
the inmate must show that the prison officials involved
“had a ‘wanton’ state of mind when they were engaging
in the alleged misconduct.” Davidson v. Flynn, 32 F.3d
27, 30 (2d Cir.1994).

Sept. 18, 2007) (finding mace to be de minimus use of force
when the plaintiff suffered expected side-effects).

Griffen v. Crippen, 193 F.3d 89, 91 (2d Cir.1999); see also
Romano v. Howarth, 998 F.2d 101, 105 (2d Cir.1993).
Therefore, the merits of plaintiff's case here are not strong
because “[t]he infliction of pain in the course of a prison
security measure ... does not amount to cruel and unusual
punishment simply because it may appear in retrospect
that the degree of force authorized or applied ... was
unreasonable ....“ Whitley v.. Albers, 475 U.S. 312, 319
(1986).

Finally, there were no uninterested witnesses present at the
time of the incident. According to the complaint, only the
officials allegedly involved in the incident were present at
the scene of the altercation.

Furthermore, there is authority holding that the use of
mace is not a sufficient basis for an excessive force
claim in the absence of “injuries from being sprayed with
mace-aside from the immediate discomfort.” McLaurin
v. New Rochelle Police Officers, 373 F.Supp.2d 385, 394
(S.D.N.Y.2005); see also Cunningham v. New York City,
04 Civ. 10232(LBS), 2007 WL 2743580, at *7 (S.D.N.Y.

Similarly, there is authority that the use of tightly
fastened handcuffs that result in either no injury or
only minor injuries is not an actionable use of excessive
force. See Drummond v. Castro, 522 F.Supp.2d 667, 679
(S.D.N.Y.2007) (finding that the use of tight handcuffs
was not excessive force); Hamlett v. Town of Greenburqh,
05 Civ. 3215(MDF), 2007 WL 119291 at *3 (S.D.N.Y.
Jan. 17, 2007) (finding that numbness resulting from
handcuffs was not sufficient to constitute excessive force).

*3 Accordingly, because plaintiff has failed to show
that his petition is sufficiently meritorious, his motion
for counsel is denied without prejudice to renewal. Any
renewed motion should be accompanied by an affidavit
establishing the factors identified above.
SO ORDERED

All Citations
Not Reported in F.Supp.2d, 2008 WL 3833227

Footnotes

1

In a civil case, such as this, the Court cannot actually “appoint” counsel for a litigant. Rather, in appropriate cases, the
Court submits the case to a panel of volunteer attorneys. The members of the panel consider the case, and each decides
whether he or she will volunteer to represent the plaintiff. If no panel member agrees to represent the plaintiff, there is
nothing more the Court can do. See generally Mallard v. United States District Court, 490 U.S. 296 (1989). Thus, even in
cases where the Court finds it is appropriate to request volunteer counsel, there is no guarantee that counsel will actually
volunteer to represent plaintiff.

End of Document

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2

Iacovangelo v. Correctional Medical Care, Inc., 624 Fed.Appx. 10 (2015)

KeyCite Yellow Flag - Negative Treatment
Distinguished by McLennon v. City of New York, E.D.N.Y., March 18,

2016

624 Fed.Appx. 10
This case was not selected for
publication in West's Federal Reporter.
RULINGS BY SUMMARY ORDER DO NOT HAVE
PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY
1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT'S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.
United States Court of Appeals,
Second Circuit.
Frank B. IACOVANGELO, Public Administrator,
Monroe County, as Administrator of the
Estate of Maria Viera, Plaintiff–Appellant,
v.
CORRECTIONAL MEDICAL CARE, INC.,
Emre Umar, Registered Nurse Tamara Augello,
Registered Nurse Maryanne McQueeney, Maria
Biuso, whose job title cannot presently be
determined but who served as the senior policy
maker for Correctional Medical Care at the
Monroe County Jail, Defendants–Appellees,
The County of Monroe, Patrick O'flynn, Ron
Harling, Deputy Denise Cesarano, Deputy
Peter Decoste, Deputy Caroline McClellan,
Deputy Bobbie Jo Bishop, Defendants. 1
No. 14–4157–cv.
|
Sept. 14, 2015.
Synopsis
Background: Administrator of county jail detainee's estate
filed suit under § 1983 against county, contractor that
provided health care services to jail, registered nurses,
and others, asserting claims for deliberate indifference

to detainee's serious medical needs. The United States
District Court for the Western District of New York,
Siragusa, J., dismissed complaint for failure to state claim,
2014 WL 4955366, and then denied reconsideration, 2015
WL 277590. Administrator appealed.

Holdings: The Court of Appeals held that:
[1] administrator adequately alleged that detainee was
suffering objectively serious medical condition during
detention, as required to state claim against jail's
registered nurses for deliberate indifference to detainee's
medical needs;
[2] administrator adequately alleged that nurse knew of
and disregarded excessive risk to health or safety of
detainee who suffered from drug withdrawal following her
admission to jail;
[3] administrator did not adequately plead claim of
deliberate indifference by second nurse; and
[4] administrator did not adequately plead claim against
county and contractor for supervisory liability.

Affirmed in part; vacated in part; remanded.

*11 Appeal from the United States District Court for the
Western District of New York (Siragusa, J.).
*12 ON CONSIDERATION WHEREOF, it is hereby
ORDERED, ADJUDGED, and DECREED that the
judgment of the district court is AFFIRMED in part,
VACATED in part, and REMANDED.
Attorneys and Law Firms
Elmer Robert Keach, III, Albany, NY, for Plaintiff–
Appellant.
Paul A. Sanders, Hiscock & Barclay, LLP, Rochester,
NY; Monroe County Law Department, Rochester, NY,
for Defendants–Appellees.
Present: ROBERT A. KATZMANN, Chief Judge,
PETER W. HALL and RAYMOND J. LOHIER, JR.,
Circuit Judges.

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1

Iacovangelo v. Correctional Medical Care, Inc., 624 Fed.Appx. 10 (2015)

SUMMARY ORDER
Plaintiff–Appellant appeals from a final judgment entered
on January 22, 2015, by the United States District Court
for the Western District of New York (Siragusa, J.), which
dismissed the plaintiff's amended complaint and denied
his motion for reconsideration. The factual gravamen
of the plaintiff's amended complaint concerned Maria
Viera's death on September 2, 2010, from myocarditis,
allegedly as a result of heroin withdrawal, in the Monroe
County Jail in Rochester, New York. On appeal, the
plaintiff argues that the district court failed to follow
the appropriate standard of review by consistently
construing facts from the amended complaint in favor
of the defendants rather than the plaintiff. Specifically,
the plaintiff contends (1) that the amended complaint
properly pleaded a claim for indifference to the medical
needs of a pre-trial detainee under 42 U.S.C. § 1983; (2)
that the amended complaint properly pleaded a Monell
claim under 42 U.S.C. § 1983; and (3) that the district
court abused its discretion by denying the plaintiff's postjudgment motion for reconsideration. We assume the
parties' familiarity with the underlying facts, procedural
history, and issues presented for review.

condition”; and (2) subjective “deliberate indifference” on
the part of the defendant official. Id.; see also Walker
v. Schult, 717 F.3d 119, 125 (2d Cir.2013) (holding that
to state an Eighth Amendment claim, “an inmate must
allege that: (1) objectively, the deprivation the inmate
suffered was sufficiently serious” and “(2) subjectively,
the defendant official acted with a sufficiently culpable
state of mind.” (internal quotation marks omitted)). The
plaintiff contends that the district court erred in finding
that the amended complaint failed to satisfy both objective
and subjective prongs.

We review de novo a district court's decision dismissing
a complaint under Rule 12(b)(6), and must accept as true
the facts alleged in the complaint and draw all reasonable
inferences in the plaintiff's favor. See Rothstein v. UBS
AG, 708 F.3d 82, 90 (2d Cir.2013). We review for abuse
of discretion a district court's decision to deny a postjudgment motion for leave to replead. See Williams v.
Citigroup, Inc., 659 F.3d 208, 212 (2d Cir.2011) (per
curiam).

*13 Although there is no per se rule that drug or alcohol
withdrawal constitutes an objectively serious medical
condition, courts in this Circuit have found many such
instances to satisfy the objective prong. See, e.g., Caiozzo,
581 F.3d at 69 (finding, with respect to the objective
prong, that “there is no dispute that Caiozzo had a
serious medical condition” where he suffered from alcohol
withdrawal); Livermore v. City of New York, No. 08–cv–
4442, 2011 WL 182052, at *6 (S.D.N.Y. Jan. 13, 2011)
(“[T]he Second Circuit often holds, frequently with little
elaboration, that alcohol withdrawal satisfies the first
element”). Here, the amended complaint pleaded that it
was clear that Viera needed medically supervised drug
detoxification because she acknowledged being under the
influence of drugs, daily drug usage, and a history of
drug abuse, at the time of her admission to Monroe
County Jail, and that “a visual assessment” would have
shown that “she was under the influence of drugs at the
time of her admission.” J.A. 46. Further, the amended
complaint alleged that “Viera was observed vomiting
in her toilet and otherwise being in distress.” J.A. 47.
Drawing all reasonable inferences in the plaintiff's favor,
such allegations sufficiently plead an objectively serious
medical condition.

[1]
First, the plaintiff contends that the amended
complaint properly pleaded a claim for indifference to the
medical needs of a pre-trial detainee in state custody, in
violation of her constitutional rights and actionable under
42 U.S.C. § 1983. A claim for indifference to the medical
needs of a pre-trial detainee in state custody is properly
analyzed under the Due Process Clause of the Fourteenth
Amendment, though such claims “should be analyzed
under the same standard irrespective of whether they are
brought under the Eighth or Fourteenth Amendment.”
Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir.2009). An
inmate must allege (1) an objectively “serious medical

[2] [3] With respect to the subjective prong, the question
is whether the defendants “kn[ew] of and disregard[ed]
an excessive risk to [Viera's] health or safety” or were
both “aware of facts from which the inference could be
drawn that a substantial risk of serious harm exist[ed],
and ... also dr[e]w the inference.” Farmer v. Brennan,
511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811
(1994); see also Johnson v. Wright, 412 F.3d 398, 403
(2d Cir.2005). The plaintiff challenges the district court's
determination that the subjective prong was not satisfied
with respect to Nurse Augello and Nurse McQueeney.
With respect to Augello, the amended complaint alleges

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

2

Iacovangelo v. Correctional Medical Care, Inc., 624 Fed.Appx. 10 (2015)

employees] to support reasonably the conclusion that
[insufficient medically supervised withdrawal] was the
custom ... and that supervisory personnel must have been
aware of it” has not been shown. Id. at 82. Here, although
Correctional Medical Care appears to have a troubled
track record in many respects, the plaintiff has not pleaded
a custom of not providing adequate medical supervision
for inmates going through drug or alcohol withdrawal.
Indeed, other than the plaintiff, the amended complaint
provides only one additional example of a similar incident.
Third, “a showing of deliberate indifference on the
part of supervisory personnel” to inadequate medically
supervised withdrawal has not been plausibly pleaded, as
nothing in the complaint plausibly alleges knowledge of
this matter on the part of any supervisory personnel. Id.;
see also id. at 81 (“[t]o establish deliberate indifference a
plaintiff must show that a policymaking official was aware
of a constitutional injury”).

that, at booking, Viera was subjected by Augello to a
medical screening, during which it was evident that Viera
was suffering from withdrawal. Indeed, Viera's screening
form noted that “Viera admitted to the daily use of
drugs ..., that she had a history of drug and alcohol abuse,
and that she acknowledged being under the influence of
drugs at the time of her admission to jail.” JA 45–46.
Despite this, Augello failed to refer Viera to medically
supervised withdrawal. With respect to McQueeney, the
amended complaint alleges that “Viera was observed
vomiting in her toilet and otherwise being in distress
by ... McQueen[e]y.” J.A. 47. But unlike Augello, the
Amended Complaint does not plead that McQueeney
had any knowledge of Viera's history of drug abuse,
acknowledgment of being under the influence of drugs
at the time of her admission to jail, or awareness that
Viera was suffering from withdrawal. Thus, drawing all
inferences in the plaintiff's favor, these allegations are
sufficient to plead the subjective prong with respect to
Augello, but not McQueeney.
[4] Second, the plaintiff argues on appeal that the
amended complaint properly pleaded a Monell claim
under 42 U.S.C. § 1983. To plead a Monell claim, a
plaintiff must allege the existence of a formal policy
which is officially endorsed by the municipality, or a
practice so persistent and widespread that it constitutes
a custom or usage of which supervisory authorities must
have been aware, or that a municipal custom, policy,
or usage can be inferred from evidence of deliberate
indifference of supervisory officials to such abuses.
See, e.g., Jones v. Town of East Haven, 691 F.3d 72,
80–81 (2d Cir.2012). None of the three methods of
pleading a Monell claim have been met here. First,
*14 no formal policy to provide inadequate medically
supervised withdrawal has been pleaded outside of
entirely conclusory allegations. Second, “a sufficiently
widespread practice among [Correctional Medical Care

Finally, the plaintiff contends that the district court
abused its discretion by denying the plaintiff's postjudgment motion for reconsideration, filed on October 31,
2014, after the district court entered judgment dismissing
the action on October 3, 2014. But because we vacate and
remand the district court's underlying judgment, we need
not reach the plaintiff's challenge to the district court's
post-judgment motion for reconsideration.
We have considered all of the Plaintiff–Appellant's
remaining arguments and find them to be without merit.
Accordingly, for the foregoing reasons, the judgment of
the district court is AFFIRMED in part, VACATED in
part, and REMANDED.

All Citations
624 Fed.Appx. 10

Footnotes

1

The Clerk of the Court is directed to amend the caption to conform with the above.

End of Document

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3

Mattison v. Decker, Not Reported in F.Supp.2d (2012)

2012 WL 398812
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Ernest MATTISON, Plaintiff,
v.
Joseph DECKER, Correctional Officer/Corporal,
Ulster County Jail; Tyrone Brodhead, Correctional
Officer, Ulster County Jail; John Legg, Correctional
Officer, Ulster County Jail; and E.P. Cunningham,
Correctional Officer, Ulster County Jail, Defendants.
Civil Action No. 9:10–CV–0504 (GLS/DEP).
|
Jan. 11, 2012.
Attorneys and Law Firms
Ernest Mattison, Stormville, NY, pro se.
Cook, Netter Law Firm, Eric M. Kurtz, Esq., Robert D.
Cook, Esq., of Counsel, Kingston, NY, for Defendants.

REPORT AND RECOMMENDATION
DAVID E. PEEBLES, United States Magistrate Judge.
*1 Pro se plaintiff Ernest Mattison, a New York
State prison inmate, has commenced this action pursuant
to 42 U.S.C. § 1983 alleging deprivation of his civil
rights. In his complaint, plaintiff maintains that while
incarcerated in a local jail facility he was assaulted by
the four named defendants. Plaintiff asserts that by their
actions the defendants violated his rights under the Eighth
Amendment.
Currently pending before the court is defendants' motion
for summary judgment seeking dismissal of plaintiff's
complaint. In their motion defendants argue that no
reasonable factfinder could conclude that plaintiff's
Eighth Amendment rights were violated in connection
with the incident in question, despite his claims to the
contrary. Having reviewed the record now before the
court, considered in a light most favorable to the plaintiff,
I find that the case will ultimately turn upon resolution of
credibility issues, which are not appropriately determined

on a summary judgment motion, and I therefore
recommend that defendants' motion be denied.

I. BACKGROUND 1
Plaintiff is currently a prison inmate entrusted to the
care and custody of the New York State Department
of Corrections and Community Supervision (“DOCCS”)
and designated to the Green Haven Correctional Facility,
located in Stormville, New York. Complaint (Dkt. No.
1) § 2; see also Dkt. No. 32. At the times relevant to his
complaint, however, plaintiff was an inmate at the Ulster
County Jail (“Ulster”), located in Kingston, New York.
Complaint (Dkt. No. 1) § 3.
Plaintiff's claims stem from an incident occurring on July
27, 2008 at Ulster while jail officials attempted to transfer
Mattison from his C–Pod cell to H–Pod to serve a thirtyday sentence of keeplock confinement resulting from a
disciplinary hearing. Complaint (Dkt. No. 1) § 6; Decker
Aff. (Dkt. No. 38–1, Exh. D) ¶ 4; Brodhead Aff. (Dkt.
No. 38–1, Exh. E) ¶ 4; Legg Aff. (Dkt. No. 38–1, Exh. F)
¶ 3. The parties generally agree that on that date each of
the four named defendants, Corrections Corporal Joseph
Decker and Corrections Officers Tyrone Brodhead, John
Legg, and E.P. Cunningham, was involved in some way in
events leading up to the transfer. See id. It is at this point
that the parties' versions of the relevant events diverge.
Plaintiff asserts that on the date in question the four
named defendants rushed into his cell and began punching
him in the face, head, and body, and applied mace.
Complaint (Dkt. No. 1) § 6. Plaintiff further contends that
he was grabbed and placed in a choke hold by defendant
Decker and flung to the concrete floor of his cell where
defendant Cunningham “began to kick & stomp on [his]
back and neck repeatedly.” Id. Plaintiff alleges that once
subdued he was handcuffed by defendant Legg, and that
the handcuffs were applied in such a fashion as to cause
his hands to swell and turn blue and purple and that, when
asked, defendants Brodhead and Decker refused to loosen
the cuffs. Id. Plaintiff asserts that defendant Legg then
dragged him by the handcuffs while the officers continued
to beat him, and that he was pushed into the shower where
he was scalded with hot water, and more mace was applied
to his face and eyes. Id. Plaintiff alleges that as a result
of the incident he was left in a great deal of pain and was
unable to move, and that he was ultimately required to
seek medical attention for injuries to his hands, wrists,

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

1

Mattison v. Decker, Not Reported in F.Supp.2d (2012)

neck and back, suffering permanent nerve damage in both
his left and right hands. Id.
*2 The defendants' submissions to the court in support
of their motion portray a vastly different version of the
relevant events. According to the defendants, on the
morning of July 27, 2008, defendant Cunningham, who
at the time was acting as a pod officer for the Ulster
County Sheriff's Department, received a call from his
supervisor advising the plaintiff was to be transported to
H–Pod where he was to serve a disciplinary period of
confinement. Cunningham Aff. (Dkt. No. 38–1 Exh. C)
¶ 3. At approximately 9:25 a.m. on that day, defendants
Legg and Brodhead had arrived at C–Pod for the purpose
of transporting the plaintiff and requested that defendant
Cunningham open plaintiff's cell door, which he did from
his remote location at the entrance to the pod. 2 When
defendants Legg and Brodhead entered plaintiff's cell and
explained the purpose of their visit Mattison threw a cup
of coffee toward the officers and dispersed the remainder
of his belongings from his desk onto the floor. Brodhead
Aff. (Dkt. No. 38–1, Exh. E) ¶ 4; Legg Aff. (Dkt. No. 38–1,
Exh. F) ¶ 4. The plaintiff was verbally instructed to submit
to the officers and permit himself to be handcuffed, but
refused. Id. The officers then requested assistance from
Corrections Corporal Decker. Id.
After Corporal Decker's arrival plaintiff continued to
resist and, according to the defendants' version, attempted
to bite both defendant Legg and defendant Decker.
Brodhead Aff. (Dkt. No. 38–1, Exh. E) ¶ 5; Legg Aff.
(Dkt. No. 38–1, Exh. F) ¶ 5; Decker Aff. (Dkt. No. 38–
1, Exh. D) ¶ 5. After a warning was given, chemical spray
was administered by defendant Legg in order to end the
confrontation. Decker Aff. (Dkt. No. 38–1, Exh. D) ¶
5; Legg Aff. (Dkt. No. 38–1, Exh. F) ¶ 5. Plaintiff was
subsequently subdued and transported to H–Pod, where
he arrived in his cell at 9:40 a.m. Decker Aff. (Dkt. No.
38–1, Exh. D) ¶ 6. Plaintiff was escorted to H–Pod by
two corrections officers, Blum and Bogart, who are not
named as defendants in the action; none of the four named
defendants participated in the escort. Decker Aff. (Dkt.
No. 38–1, Exh. D) ¶ 5. Legg Aff. (Dkt. No. 38–1, Exh. F)
¶¶ 6–7. The defendants categorically deny having choked,
punched, or kicked the plaintiff and assert that it was
his actions in refusing to submit and allow officers to
handcuff him that resulted in the use of force and the
deployment of chemical spray. Cunningham Aff. (Dkt.
No. 38–1 Exh. C) ¶ 7; Decker Aff. (Dkt. No. 38–1, Exh. D)

¶ 7; Brodhead Aff. (Dkt. No. 38–1, Exh. E) ¶¶ 6–7; Legg
Aff. (Dkt. No. 38–1, Exh. F) ¶ 7.

II. PROCEDURAL HISTORY
Plaintiff commenced this action with the filing of a
complaint, accompanied by a request for leave to proceed
in forma pauperis (“IFP”), on April 30, 2010. Dkt.
Nos. 1, 2. Named as defendants in plaintiff's complaint
are Corrections Corporal Joseph Decker as well as
Corrections Officers Tyrone Brodhead, John Legg, and
E.P. Cunningham. Plaintiff asserts an Eighth Amendment
excessive force claim against each of the four defendants
and requests an award of compensatory damages in the
amount of $200,000. Id. Following a routine review of
plaintiff's complaint, I issued an order dated May 18, 2010
granting plaintiff's IFP application and directing that the
complaint be filed and summonses issued for service by
the United States Marshals Service. Dkt. No. 5.
*3 On April 29, 2011, after the joinder of issue and
completion of discovery, defendants moved for the entry
of summary judgment dismissing plaintiff's claims against
them. Dkt. No. 38. The filing of that motion was followed
by submission of defendants' memorandum of law on
May 9, 2011. Dkt. No. 40. The court received plaintiff's
response to defendants' motion on June 20, 2011. Dkt.
No. 42. Defendants' motion, which is now fully briefed
and ripe for determination, has been referred to me for the
issuance of a report and recommendation, pursuant to 28
U.S.C. § 636(b)(1)(B) and Northern District of New York
Local Rule 72.3(c). See Fed. Rule Civ. P. 72(b).

III. DISCUSSION
A. Summary Judgment Standard
Summary judgment motions are governed by Rule 56
of the Federal Rules of Civil Procedure. Under that
provision, summary judgment is warranted when “the
pleadings, the discovery and disclosure materials on file,
and any affidavits show that there is no genuine issue
as to any material fact and that the movant is entitled
to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct.
2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509–
10, 91 L.Ed.2d 202 (1986); Security Ins. Co. of Hartford
v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82–83
(2d Cir.2004). A fact is “material”, for purposes of this

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2

Mattison v. Decker, Not Reported in F.Supp.2d (2012)

inquiry, if it “might affect the outcome of the suit under
the governing law.” Anderson, 477 U.S. at 248, 106 S.Ct.
at 2510; see also Jeffreys v. City of New York, 426 F.3d
549, 553 (2d Cir.2005) (citing Anderson ). A material fact
is genuinely in dispute “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
A party moving for summary judgment bears an initial
burden of demonstrating that there is no genuine dispute
of material fact to be decided with respect to any essential
element of the claim in issue; the failure to meet this
burden warrants denial of the motion. Anderson, 477 U.S.
at 250 n. 4, 106 S.Ct. at 2511 n. 4; Security Ins., 391 F.3d
at 83. In the event this initial burden is met the opposing
party must show, through affidavits or otherwise, that
there is a material issue of fact for trial. Fed.R.Civ.P. 56(e);
Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Anderson, 477
U.S. at 250, 106 S.Ct. at 2511. Though pro se plaintiffs
are entitled to special latitude when defending against
summary judgment motions, they must establish more
than mere “metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986);
but see Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620–
21 (2d Cir.1999) (noting obligation of court to consider
whether pro se plaintiff understood nature of summary
judgment process).
*4 When deciding a summary judgment motion, a court
must resolve any ambiguities, and draw all inferences from
the facts, in a light most favorable to the nonmoving
party. Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132
F.3d 133, 137–38 (2d Cir.1998). Summary judgment is
warranted only in the event of a finding that no reasonable
trier of fact could rule in favor of the non-moving party.
See Building Trades Employers' Educ. Ass'n v. McGowan,
311 F.3d 501, 507–08 (2d Cir.2002) (citation omitted);
see also Anderson, 477 U.S. at 250, 106 S.Ct. at 2511
(summary judgment is appropriate only when “there can
be but one reasonable conclusion as to the verdict”).

B. Excessive Force/Failure to Intervene
In their motion, defendants argue that no reasonable
factfinder could conclude plaintiff's Eighth Amendment
rights were violated by their conduct. 3 As a basis for
this contention defendants assert that the record lacks
evidence demonstrating defendants acted with subjective

wantonness. Defendants also maintain that plaintiff's
failure to identify any “lasting injury” provides further
grounds for dismissal of her claim.
Plaintiff's contention that the four jail employees named
in his complaint utilized excessive force against him
implicates the Eighth Amendment's prohibition against
cruel and unusual punishment. Whitley, 475 U.S. at 319–
320, 106 S.Ct. 1084–85; Griffin v. Crippen, 193 F.3d 89, 91
(2d Cir.1999). That amendment proscribes punishments
that involve the “unnecessary and wanton infliction of
pain” and are incompatible with “the evolving standards
of decency that mark the progress of a maturing society.”
Estelle v. Gamble, 429 U.S. 97, 102, 104, 97 S.Ct. 285, 290,
291, 50 L.Ed.2d 251 (1976); see also Whitley v. Albers,
475 U.S. 312, 319, 106 S.Ct. 1076, 1084 (1986) (citing,
inter alia, Estelle ). While the Eighth Amendment does
not mandate comfortable prisons, neither does it tolerate
inhumane treatment of those in confinement; thus, the
conditions of an inmate's confinement are subject to
Eighth Amendment scrutiny. Farmer v. Brennan, 511 U.S.
825, 832, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994)
(citing Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct.
2392, 2400, 69 L.Ed.2d 59 (1981)).
The lynchpin inquiry in deciding claims of excessive force
against prison officials under the Eighth Amendment
is “whether force was applied in a good-faith effort
to maintain or restore discipline or maliciously and
sadistically for the very purpose of causing harm.” Hudson
v. McMillian, 503 U.S. 1, 6–7, 112 S.Ct. 995, 998–999, 117
L.Ed.2d 156 (1992) (applying Whitley to all excessive force
claims); Whitley, 475 U.S. at 320–21, 106 S.Ct. at 1085
(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.)
(Friendly, J.), cert. denied sub nom., John v. Johnson, 414
U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)). Analysis
of claims of cruel and unusual punishment requires both
objective examination of the effect of the use of force and
a subjective inquiry into the defendant's motive for his
or her conduct. Wright v. Goord, 554 F.3d 255, 268 (2d
Cir.2009) (citing Hudson, 503 U.S. at 7–8, 112 S.Ct. at 999
and Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir.1999)).
As was emphasized by the United States Supreme Court in
Wilkins v. Gaddy, however, after Hudson the “core judicial
inquiry” is focused not upon the extent of the injury
sustained, but instead whether the nature of the force
applied was nontrivial. ––– U.S. ––––, 130 S.Ct. 1175,
1178, 175 L.Ed.2d 995 (2010) (per curiam). Accordingly,
when considering the subjective element of the governing

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3

Mattison v. Decker, Not Reported in F.Supp.2d (2012)

Eighth Amendment test a court must be mindful that
the absence of serious injury, though relevant, does not
necessarily negate a finding of wantonness since, as the
Supreme Court has noted,
*5
[w]hen
prison
officials
maliciously and sadistically use
force to cause harm, contemporary
standards of decency always are
violated.... This is true whether
or not significant injury is
evident. Otherwise, the Eighth
Amendment would permit any
physical punishment, no matter how
diabolic or inhuman, inflicting less
than some arbitrary quantity of
injury.
Hudson, 503 U.S. at 9, 112 S.Ct. at 1000 (citations
omitted); See Velasquez v. O'Keefe, 899 F.Supp. 972, 973
(N.D.N.Y.1995) (McAvoy, C.J.) (quoting Hudson, 503
U.S. at 9, 112 S.Ct. at 1000); see also Romaine v. Rewson,
140 F.Supp.2d 204, 211 (N.D.N.Y.2001) (Kahn, J.). Even
a de minimis use of physical force can constitute cruel and
unusual punishment if it is “repugnant to the conscience
of mankind.” Hudson, 503 U.S. at 9–10, 112 S.Ct. 1000
(citations omitted).
With its focus on the harm done, the objective prong of
the inquiry is contextual and relies upon “contemporary
standards of decency.” Wright, 554 F.3d at 268 (quoting
Hudson, 503 U.S. at 8, 112 S.Ct. at 1000) (internal
quotations omitted)). When addressing this component
of an excessive force claim under the Eighth Amendment
calculus, the court can consider the extent of the injury
suffered by the inmate plaintiff. While the absence of
significant injury is certainly relevant, it is not dispositive.
Hudson, 503 U.S. at 7, 112 S.Ct. at 999. The extent
of an inmate's injury is but one of the factors to be
considered in determining whether a prison official's use
of force was “unnecessary and wanton”; courts should
also consider the need for force, whether the force was
proportionate to the need, the threat reasonably perceived
by the officials, and what, if anything, the officials did
to limit their use of force. Whitley, 475 U.S. at 321, 106
S.Ct. at 1085 (citing Johnson, 481 F.2d at 1033). “But
when prison officials use force to cause harm maliciously
and sadistically, ‘contemporary standards of decency are
always violated.... This is true whether or not significant

injury is evident.’ “ Wright, 554 F.3d at 268–69 (quoting
Hudson, 503 U.S. at 9, 112 S Ct. at 1000).
That is not to say that “every malevolent touch by a
prison guard gives rise to a federal cause of action.”
Griffen, 193 F.3d at 91 (citing Romano v. Howarth,
998 F.2d 101, 105 (2d Cir.1993)); see also Johnson, 481
F.2d at 1033 (“Not every push or shove, even if it
later may seem unnecessary in the peace of a judge's
chambers, violates a prisoner's constitutional rights”).
Where a prisoner's allegations and evidentiary proffers, if
credited, could reasonably allow a rational factfinder to
conclude that corrections officers used force maliciously
and sadistically, however, summary judgment dismissing
an excessive use of force claim is inappropriate. Wright,
554 F.3d at 269 (citing Scott v. Coughlin, 344 F.3d 282, 291
(2d Cir.2003) (reversing summary dismissal of prisoner's
complaint, though suggesting that prisoner's evidence of
an Eighth Amendment violation was “thin” as to his claim
that a corrections officer struck him in the head, neck,
shoulder, wrist, abdomen, and groin, where the “medical
records after the ... incident with [that officer] indicated
only a slight injury”)) (other citations omitted).
*6 The allegations set forth in plaintiff's complaint, if
credited, would plainly satisfy both the objective and
subjective prongs of the controlling Eighth Amendment
test. 4 Plaintiff alleges that defendants Decker, Brodhead,
Legg, and Cunningham entered his cell, sprayed mace in
his eyes and mouth, placed him in a choke hold and threw
him to the concrete floor, where defendant Cunningham
kicked him and stomped on his back and neck repeatedly.
Once handcuffed, plaintiff maintains that he was dragged
by the handcuffs to the elevator where defendant Legg
continued to beat him, and that defendants Decker,
Brodhead, and Cunningham stood by during the ongoing
assault by defendant Legg. 5 Plaintiff further asserts that
he was then taken to the shower, where he was scalded
with hot water and again sprayed with mace. These
allegations, if credited, could suffice to establish a claim of
unlawful use of excessive force in violation of the Eighth
Amendment. See Velez v. McDonald, No. 3:10cv483 2011
WL 1215442, at *3–4 (D.Conn. Mar.27, 2011); Edwards v.
City of New York, 08–cv–2199, 2010 WL 3257667, at * 4
(E.D.N.Y. Aug.16, 2010). 6
From the conflicting accounts given by the parties
this case would appear to squarely present an issue

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4

Mattison v. Decker, Not Reported in F.Supp.2d (2012)

of credibility not appropriately resolved on motion for
summary judgment. Rule v. Brine, Inc., 85 F.3d 1002,
1011 (2d Cir.1996) (citing, inter alia, Anderson, 477 U.S.
at 255, 106 S.Ct. 2513). In moving for summary judgment
despite this limitation it may be that defendants are
attempting to invoke the limited exception created by
the court in Jeffreys v. City of New York, 426 F.3d at
549. In that action, the Second Circuit recognized a very
narrow exception to the otherwise steadfast rule against
resolving issues of credibility on a motion for summary
judgment. Slacks v. Gray, No. 9:07–CV–510, 2009 WL
3164782, at *13 (N.D.N.Y. Sept.29, 2009) (Mordue, C.J.).
The Jeffreys court held that summary judgment may be
awarded in the rare circumstance where there is nothing
in the record to support the plaintiff's allegations, other
than his own contradictory and incomplete testimony,
and where even after drawing all inferences in a light
most favorable to the plaintiff, the court determines
that “no reasonable person” could credit the plaintiff's
testimony. Jeffreys, 426 F.3d at 54–55. In so holding, the
court cited with approval the district court's opinion in
Shabazz v. Pico, 994 F.Supp. 460, 468–71 (S.D.N.Y.1998),
which granted summary judgment in an excessive force
case based upon the absence of any evidence in the
record to corroborate the plaintiff's version of the events,
highlighting the “many inconsistencies and contradictions
within the plaintiff's deposition testimony and affidavits.”
Slacks, 2009 WL 3164782, at *13 (citing Jeffreys, 426 F.3d
at 555 and quoting Shabazz, 994 F.Supp. at 470). 7
In this district, it appears that in order to qualify for
application of the Jeffreys exception a defendant must
meet the following three requirements: 1) the plaintiff
must rely “almost exclusively on his own testimony”;
2) the plaintiff's testimony must be “contradictory or
incomplete”; and 3) the plaintiff's testimony must be
contradicted by evidence produced by the defense. Benitez
v. Ham, No. 9:04–CV–1159, 2009 WL 3486379, at *20–21
(N.D.N.Y. Oct.21, 2009) (Mordue, C.J. and Lowe, M.J.)
(citing and quoting Jeffreys ).
*7 To be sure, as defendants assert, plaintiff's excessive
force claims are uniformly contradicted by the flat denials
of each of the defendants and lack support from the
log entries submitted in support of defendants' motion.
Defendants' accounts of the relevant events are also
supported by the fact that there is no indication that
at or shortly after the time of the incident plaintiff
required medical treatment. Nonetheless, this case does

not need meet the Jeffreys exception for two reasons.
First, defendants are unable to cite to any contradictory
or incomplete accounts of the relevant events given by
the plaintiff. Secondly, while plaintiff's claim principally
relies upon his account of the relevant events, there is at
least some modest corroborative support for his version,
given that the medical evidence now in the record suggests
that he sought and obtained medical treatment for a
hand injury beginning in October of 2008, three months
after the alleged assault. See Plaintiff's Exhibits (Dkt.
No. 42). While there is nothing in plaintiff's medical
records directly linking his injuries to the alleged assault,
and in fact one entry reflects the finding of edema to
plaintiff's left hand of “unknown cause”, nonetheless
drawing all inferences in plaintiff's favor, a reasonable
factfinder could conclude that the injury stems from
the fact that plaintiff was tightly handcuffed and that
defendants dragged him by those handcuffs during the
July 2008 incident, as alleged in plaintiff's complaint. See
Scott, 344 F.3d at 282; Kerman v. City of New York, 261
F.3d 229, 239 (2d Cir.2001) (“If the jury were to credit
[plaintiff's] version of the facts and believe his allegations
of handcuff tightening, infliction of pain, verbal abuse,
humiliation and unnecessary confinement to a restraint
bag in a painful position, our prior cases indicate that the
use of force under [defendant's] supervision might well be
objectively unreasonable and therefore excessive.”). For
these reasons, I recommend that the court not invoke the
narrow Jeffreys exception to the otherwise staunch rule
that issues of credibility must be resolved at trial, rather
than on a motion for summary judgment, and that it deny
defendants' motion.

C. Qualified Immunity
In addition to their contention that the court
should grant them summary judgment on the merits,
defendants additionally contend that they are entitled to
qualified immunity from suit. Qualified immunity shields
government officials performing discretionary functions
from liability for damages “insofar as 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, 102 S.Ct.
2727, 2738, 73 L.Ed.2d 396 (1982) (citations omitted).
“In assessing an officer's eligibility for the shield, ‘the
appropriate question is the objective inquiry whether a
reasonable officer could have believed that [his or her
actions were] lawful, in light of clearly established law
and the information the officer[ ] possessed.” Kelsey

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Mattison v. Decker, Not Reported in F.Supp.2d (2012)

v. County of Schoharie, 567 F.3d 54, 61 (2d Cir.2009)
(quoting Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct.
1692, 143 L.Ed.2d 818 (1999)). The law of qualified
immunity seeks to strike a balance between the need to
hold government officials accountable for irresponsible
conduct and the need to protect them from “harassment,
distraction, and liability when they perform their duties
reasonably.” Pearson v. Callahan, 555 U.S. 223, 129 S.Ct.
808, 815, 172 L.Ed.2d 565 (2009).
*8 In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151,
150 L.Ed.2d 272 (2001), the Supreme Court “mandated
a two-step sequence for resolving government official's
qualified immunity claims.” Pearson, 555 U.S. at 232,
129 S.Ct. at 815–16. The first step requires the court to
consider whether, taken in the light most favorable to the
party asserting immunity, the facts alleged show that the
conduct at issue violated a constitutional right, 8 Kelsey,
567 F.3d at 61, with “the second step being whether the
right is clearly established”, Okin v. Village of Cornwall–
On–Hudson Police Dept., 577 F.3d 415, 430 n. 9 (citing
Saucier ). 9 Expressly recognizing that the purpose of the
qualified immunity doctrine is to ensure that insubstantial
claims are resolved prior to discovery, the Supreme
Court recently retreated from the prior Saucier two-step
mandate, concluding in Pearson that because “[t]he judges
of the district courts and courts of appeals are in the
best position to determine the order of decisionmaking
[that] will best facilitate the fair and efficient disposition
of each case”, those decision makers “should be permitted
to exercise their sound discretion in deciding which of
the ... prongs of the qualified immunity analysis should
be addressed first in light of the circumstances of the
particular case at hand.” 10 Pearson, 555 U.S. at 236,
242, 129 S.Ct. at 818, 821. In other words, as recently
emphasized by the Second Circuit, the courts “are no
longer required to make a ‘threshold inquiry’ as to the
violation of a constitutional right in a qualified immunity
context, but we are free to do so.” Kelsey, 567 F.3d at 61
(citing Pearson, 129 S.Ct. at 821) (emphasis in original).
For courts engaging in a qualified immunity analysis, “the
question after Pearson is ‘which of the two prongs ...
should be addressed in light of the circumstances in the
particular case at hand.’ “ Okin, 577 F.3d 430 n. 9 (quoting
Pearson ). “The [Saucier two-step] inquiry is said to be
appropriate in those cases where ‘discussion of why the
relevant facts do not violate clearly established law may

make it apparent that in fact the relevant facts do not make
out a constitutional violation at all .’ “ Kelsey, 567 F.3d at
61 (quoting Pearson, 129 S.Ct. at 818).
In this instance, the right of prison inmate to be free
from the use of excessive force was clearly established
in July of 2008. Russo v. City of Bridgeport, 479 F.3d
196, 212 (2d Cir.2007), cert. denied, 552 U.S. 818, 128
S.Ct. 109, 169 L.Ed.2d 24 (2007). Defendants would be
hard pressed to show that prison officials in defendants'
position could have reasonably believed that the use of
excessive force, as alleged in plaintiff's complaint, would
not run afoul of the Eighth Amendment's prohibitions.
Accordingly, I recommend against a finding that the
defendants are entitled to qualified immunity from suit.
See Curry v. City of Syracuse, 316 F.3d 324, 334 (2d
Cir.2003) (reversing grant of summary judgment on
qualified immunity grounds finding credibility questions
as to whether force was used as well as the surrounding
circumstances).

IV. SUMMARY AND RECOMMENDATION
*9 Although there is much room for healthy skepticism
regarding plaintiff's version of the events surrounding his
removal from his C–Pod cell in order to transfer him, for
disciplinary reasons, to another area of the jail facility at
Ulster, the record now before the court presents directly
contradictory versions of the relevant events, with plaintiff
alleging facts which, if true, would plainly support a
finding that his Eighth Amendment rights were violated,
and defendants flatly denying any use of force beyond
that necessary to subdue a non-compliant inmate and
arrange for his transfer. Such a conflict presents credibility
issues that are not appropriately resolved on a motion for
summary judgment. Accordingly, it is hereby respectfully
RECOMMENDED that defendants' motion for
summary judgment dismissing plaintiff's complaint (Dkt.
No. 38) be DENIED in all respects.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties
may lodge written objections to the foregoing report.
Such objections must be filed with the clerk of the
court within FOURTEEN days of service of this report.
FAILURE TO SO OBJECT TO THIS REPORT WILL
PRECLUDE APPELLATE REVIEW. 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette,
984 F.2d 85 (2d Cir.1993).

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Mattison v. Decker, Not Reported in F.Supp.2d (2012)

It is hereby ORDERED that the clerk of the court serve a
copy of this report and recommendation upon the parties
in accordance with this court's local rules; and it is further.

All Citations
Not Reported in F.Supp.2d, 2012 WL 398812

Footnotes

1
2

3

4

5

6
7

In light of the procedural posture of the case the following recitation is derived from the record now before the court, with
all inferences drawn and ambiguities resolved in favor of the plaintiff. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003).
It should be noted, however, that many if not most of plaintiff's allegations are sharply contested by the defendants.
Defendant Cunningham's affidavit states that the incident occurred at approximately 9:25 p.m. See Cunningham Aff.
(Dkt. No. 38–1 Exh. C) ¶ 4. It appears clear, however, from the remaining affidavits as well as excerpts of log book
entries also before the court that the incident occurred in the morning, rather than the evening, of July 27, 2008. See,
e.g., Decker Aff. (Dkt. No. 38–1 Exh. D) ¶ 4; Brodhead Aff. (Dkt. No. 38–1 Exh. E) ¶ 4; see also Defendants' Exhibits
(Dkt. No. 38–1) Exhs. G and H.
It is unclear from the record whether, at the relevant times, plaintiff was a sentenced prisoner or instead a pretrial detainee.
In the event that he was a pretrial detainee, his claims are governed by the Due Process Clause of the Fourteenth
Amendment, rather than the Eighth Amendment, which applies to claims brought by inmates serving prison sentences.
Benjamin v. Fraser, 343 F.3d 35, 49–50 (2d Cir.2000). In light of pronouncements by the Second Circuit reflecting that
similar standards apply to excessive force claims brought under the Eighth and Fourteenth Amendments, resolution of
this question is not outcome determinative, and I will therefore analyze plaintiff's claims under the Eighth Amendment.
See Caiozzo v. Koreman, 581 F.3d 63, 71 (2d Cir.2009); Corye v. Carr, No. 9:08–CV–46, 2010 WL 396363, at * 8 n. 9
(N.D.N.Y. Jan.26, 2010) (Kahn, J. and DiBianco, M.J.). Copies of all unreported decisions cited in this document have
been appended for the convenience of the pro se plaintiff.
While plaintiff has not submitted an affidavit to support his claims and oppose defendants' motion, the contents of his
complaint are sworn to under the penalty of perjury and thus constitute the equivalent of an affidavit for purposes of
defendants' summary judgment motion. Franco v. Kelly, 854 F.2d 584, 587 (2d Cir.1988) (citing Pfeil v. Rogers, 757 F.2d
850, 859 & n. 15 (7th Cir.1985) (noting that documents sworn under penalty of perjury may suffice for summary judgment
purposes even if they do not meet all of the formal requirements of a notarized affidavit)), cert. denied, 475 U.S. 1107,
106 S.Ct. 1513, 89 L.Ed.2d 912 (1986).
It should be noted that while defendants Decker, Brodhead, and Cunningham may not have actively participated in this
portion of the alleged assault, this does not necessarily exonerate those officers from liability. A corrections worker who,
while not participating in an assault upon an inmate, is present while it occurs may nonetheless bear responsibility for any
resulting constitutional deprivation. See Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.1994). 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 or her presence by other officers. See Mowry v. Noone, No. 02–CV–6257 Fe, 2004 WL 2202645, at
*4 (W.D.N.Y. Sept.30, 2004); see also Curley v. Village of Suffern, 268 F.3d 65, 72 (2d Cir.2001) ( “Failure to intercede
results in [section 1983] liability where an officer observes excessive force being used or has reason to know that it will
be.”) (citations omitted). In order to establish liability on the part of a defendant under this theory, a plaintiff must prove the
use of excessive force by someone other than the individual, and that the defendant under consideration 1) possessed
actual knowledge of the use by another corrections officer of excessive force; 2) had a realistic opportunity to intervene
and prevent the harm from occurring; and 3) nonetheless disregarded that risk by intentionally refusing or failing to take
reasonable measures to end the use of excessive force. See Curley, 268 F.3d at 72; see also Espada v. Schneider, 522
F.Supp.2d 544, 555 (S.D.N.Y.2007).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
[Editor's Note: Attachments of Westlaw case copies deleted for online display.]
The court in Shabazz found that when the facts alleged by the plaintiff are “so contradictory that doubt is cast upon their
plausibility,” the court may “pierce the veil of the complaint's factual allegations ... and dismiss the claim.” Shabazz, 994
F.Supp. at 470. While approving of the lower court's reasoning in Shabazz, the Jeffreys court was careful to distinguish
Fischl v. Armitage, 128 F.3d 50, 56 (2d Cir.1997), another case it had previously decided, wherein it reversed the grant
of summary judgment in an excessive force case. Jeffreys, 426 F.3d at 554–55. In doing so, the court emphasized that in
Fischl the plaintiff's testimony that he was beaten was supported by 1) photographs showing severe bruises, 2) hospital

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Mattison v. Decker, Not Reported in F.Supp.2d (2012)

8
9

10

records showing that he had fractures of the head; 3) a physician's opinion that plaintiff's injuries were consistent with
having been kicked in the head; and 4) the fact that the plaintiff's eye socket fracture could not have been self-inflicted. Id.
In making the threshold inquiry, “[i]f no constitutional right would have been violated were the allegations established,
there is no necessity for further inquiries concerning qualified immunity. Saucier, 533 U.S. at 201, 121 S.Ct. 2151, 150
L.Ed.2d 272.
In Okin, the Second Circuit clarified that the “ ‘objectively reasonable’ inquiry is part of the ‘clearly established’ inquiry”,
also noting that “once a court has found that the law was clearly established at the time of the challenged conduct and for
the particular context in which it occurred, it is no defense for the [government] officer who violated the clearly established
law to respond that he held an objectively reasonable belief that his conduct was lawful.” Okin, 577 F.3d at 433, n. 11
(citation omitted).
Indeed, because qualified immunity is “an immunity from suit rather than a mere defense to liability ...”, Mitchell v. Forsyth,
472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Court has “repeatedly ... stressed the importance of
resolving immunity questions at the earliest possible stage in the litigation.” Pearson, 555 U.S. at 231, 129 S.Ct. at 815
(quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 524, 116 L.Ed.2d 589, –––– (1991) (per curiam)).

End of Document

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8

Medina v. Gonzalez, Not Reported in F.Supp.2d (2009)

2009 WL 400639
Only the Westlaw citation is currently available.
This decision was reviewed by West editorial
staff and not assigned editorial enhancements.
United States District Court,
S.D. New York.
Anthony MEDINA, Plaintiff,
v.
Warden GONZALEZ, Captain Menge, Captain
S. Graham, Captain Boyd, Correction Officer S.
Trail, Correction Officer McDonald, Correction
Officer M. Lonnborg, Correction Officer Bowden,
Correction Officer John Doe One, Correction
Officer John Doe Two, Correction Officer John

Medina requests that the Court appoint counsel to assist
him in prosecuting this action and notes that he requires
assistance as this case involves: “several different factual
and legal claims,” “medical issues that will require expert
testimony,” and conflicting accounts of the incidents in
question. In addition, the plaintiff alleges he has “mental
health issues, is visually impaired,” requires assistance
in obtaining discovery materials and locating witnesses,
and has “no ability to investigate the facts of this case.”
The plaintiff notes he has attempted to secure counsel;
however: (1) one attorney agreed to represent him and
then discontinued representation, (2) another attorney
“agreed to take the case but wanted too much of any
award, thus the plaintiff refused representation,” and (3)
a third attorney refused representation. The plaintiff's
application, for appointed counsel, is addressed below.

Doe Three, Captain Jane Doe, Defendants.
No. 08 Civ. 01520(BSJ)(KNF).
|
Jan. 9, 2009.

MEMORANDUM and ORDER
KEVIN NATHANIEL FOX, United States Magistrate
Judge.
I. INTRODUCTION
*1 Anthony Medina (“Medina”), proceeding pro
se and in forma pauperis, commenced this action,
pursuant to 42 U.S.C. §§ 1983, 1985, and 1986, alleging
that Warden Gonzalez (“Gonzalez”), Captain Menge
(“Menge”), Captain Graham (“Graham”), Captain
Boyd (“Boyd”), Correction Officer S. Trail (“Trail”),
Correction Officer McDonald (“McDonald”), Correction
Officer M. Lonnborg (“Lonnborg”), Correction Officer
Bowden (“Bowden”), Correction Officer John Doe
One (“Doe One”), Correction Officer John Doe Two
(“Doe Two”), Correction Officer John Doe Three
(“Doe Three”), and Captain Jane Doe (“Jane Doe”)
(collectively “defendants”)-all of whom were employees of
the Robert N. Davoren Correctional Center on Riker's
Islandviolated his Eighth and Fourteenth Amendment
rights by assaulting him, and conspired to “cover up” the
assaults.

II. BACKGROUND
In his complaint, Medina alleges that, in June 2006, he
was transferred from the custody of the New York State
Department of Correctional Services (“DOCS”) to the
custody of the New York City Department of Corrections,
at Riker's Island. On June 20, 2006, Gonzalez and a
deputy warden were “making rounds of the facility” when
they ordered Medina to “surrender his slippers because
the slippers belonged to the facility.” Medina responded
that the slippers belonged to him, as he had brought the
slippers with him from DOCS. Menge, Graham, and Doe
One “asked [Medina] for the slippers.” Medina reiterated
that the slippers belonged to him and offered to show a
receipt from DOCS verifying his ownership and, when
Medina turned to enter his cell to retrieve the receipt,
he was sprayed with “Oleoresin Capsiaim spray (macepepper spray)” by Menge, Graham and Doe One while
Gonzalez and the deputy warden watched. Thereafter,
Boyd, Graham, Menge, Trail, McDonald, Lonnborg,
Bowden, and John Does Two and Three assaulted the
plaintiff in four episodes, as Medina wavered in and out
of consciousness. The plaintiff alleged that, after the final
assault, he was hospitalized. The scope of the plaintiff's
injuries included: “emotional distress” as well as physical
injuries ranging from “multiple abrasions and contusions
to his right eye, face, lip, left ear, head, chest, neck, back,
legs, hand and both wrists; a left eye hemor[r]hage, left
ear hemato[m]a, a broken back, arthritis of the spine,
nerve damage and paresthesiae.” The plaintiff maintains

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1

Medina v. Gonzalez, Not Reported in F.Supp.2d (2009)

he continues to be treated for his back injury and nerve
damage with pain medications and physical therapy.
*2 With regard to the conspiracy claim, the plaintiff
alleges Trail and Lonnborg filed separate “false and
misleading” misbehavior reports in furtherance of the
conspiracy to “cover up their misconduct.” The plaintiff
also alleges the defendants conspired to “cover up the
attacks” by confiscating evidence, and leaving the plaintiff
unconscious in the shower area where he would not be
found easily. The plaintiff requests monetary damages and
declaratory relief.

III. DISCUSSION
Unlike criminal defendants, prisoners, such as plaintiff,
and indigents filing civil actions have no constitutional
right to counsel. However, 28 U.S.C. § 1915(e)(1) provides
that the Court may request an attorney to represent
any person unable to afford counsel. Plaintiff made an
application to proceed in forma pauperis, which was
granted. Therefore, he is within the class to whom 28
U.S.C. § 1915(e)(1) applies.
“In deciding whether to appoint counsel, [a] district [court]
should first determine whether the indigent's position
seems likely to be of substance.” Hodge v. Police Officers,
802 F.2d 58, 61 (2d Cir.1986), cert. denied, 502 U.S. 986,
112 S.Ct. 596 (1991). This means that it appears to the
court “from the face of the pleading[s],” (see Stewart
v. McMickens, 677 F.Supp. 226, 228 [S.D.N.Y.1988] ),
that the claim(s) asserted by the plaintiff “may have
merit,” (see Vargas v. City of New York, No. 97 Civ. 8426,
1999 U.S. Dist. LEXIS 10406, at *5; 1999 WL 486926, at
*2 [S.D .N.Y. July 9, 1999] ), or that the plaintiff “appears
to have some chance of success....” Hodge, 802 F.2d at
60-61. The pleadings drafted by a pro se litigant, such as
Medina, are to be construed liberally and interpreted to
raise the strongest arguments they suggest. See Burgos v.
Hopkins, 14 F.3d 787, 790 (2d Cir.1994).
In order for the plaintiff to prevail on his Eighth
Amendment excessive force claim, made pursuant to
42 U.S.C. § 1983, he must show that: (1) objectively,
the deprivation alleged is sufficiently serious to reach
constitutional dimensions; and (2) subjectively, the
defendants must have acted with a “sufficiently culpable
state of mind” associated with the “unnecessary and

wanton infliction of pain.” Farmer v. Brennan, 511 U.S.
825, 834, 114 S.Ct. 1970, 1977 (1994); see Romano v.
Howarth, 998 F.2d 101, 105 (2d Cir.1993). Whether
conduct is “wanton” depends on “whether force was
applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically [to] caus[e]
harm.” Hudson v. McMillian, 503 U.S. 1, 6, 112 S.Ct. 995,
998 (1992) (internal quotations and citations omitted).
Looking solely to the face of the pleadings, it appears that
the plaintiff's Eighth Amendment claim may have merit.
The plaintiff's factual allegations provide sufficient details
to show that he suffered pain and injury, and, though
the plaintiff did not surrender his slippers to correction
officers immediately, the use of a chemical agent and
the repeated assaults alleged do not appear to qualify as
“force ... applied in a good-faith effort to maintain or
restore discipline,” but, rather, appear to have been used
“maliciously and sadistically [to] caus[e] harm.” Hudson,
supra.
*3 In order to sustain a claim under 42 U.S.C. § 1985(3),
a plaintiff must demonstrate that the defendants acted
with racial or other class-based animus in conspiring to
deprive the plaintiff of his civil rights. See United Bhd. of
Carpenters & Joiners, Local 610 v. Scott, 463 U.S. 825, 835,
103 S.Ct. 3352, 3359 (1983) (citing Griffin v. Breckenridge,
403 U.S. 88, 102, 91 S.Ct. 1790, 1798 [1971] ). The plaintiff
does not allege, in his complaint, that the defendants were
motivated by race or some other class-based animus in
assaulting him and conspiring to “cover-up” the assaults.
As a result, at this juncture, it appears that the plaintiff's
claim under 42 U.S.C. § 1985(3) is deficient. By extension,
since “a § 1986 claim must be predicated upon a valid §
1985 claim[,]” the plaintiff's § 1986 claim does not appear
likely to be of merit. Mian v. Donaldson, Lufkin & Jenrette
Sec. Corp., 7 F.3d 1085, 1088 (2d Cir.1993).
Despite the appearance of merit to Medina's Eighth
Amendment claim, appointing counsel would not be
appropriate since, in his request for appointed counsel,
Medina states that an attorney had agreed to represent
him, but Medina refused counsel's offer because of the
portion of the prospective recovery counsel indicated he
wanted for his fee. See Hodge, 802 F.2d at 61 (“[i]n
our view, the language of [28 U.S.C. § 1915] requires
that the indigent be unable to obtain counsel before
appointment will even be considered”). Therefore, the

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2

Medina v. Gonzalez, Not Reported in F.Supp.2d (2009)

plaintiff's request, that the Court appoint counsel to
represent him, is denied.

All Citations

SO ORDERED.

Not Reported in F.Supp.2d, 2009 WL 400639

End of Document

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3

Perez v. City of New York, Slip Copy (2017)

2017 WL 684186
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Julio Perez, Plaintiff,
v.
The City of New York; Department of Corrections;
Commissioner of N.Y.C. Corrections; Warden
of N.Y.C. Corrections; Deputy Warden; Officer
Tavares; and John Does # 1 – 4, Captain's Officers
Present in Dorm # 2, Bed # 6, Defendants.
17 Civ. 366 (BMC)(LB)
|
Signed February 17, 2017
|
Filed 02/21/2017
Attorneys and Law Firms
Julio Perez, East Elmhurst, NY, pro se.

given leave to file an amended complaint. See Perez v.
City of New York Dep't of Corr., No. 16 Civ. 5307,
2016 WL 5477598 (E.D.N.Y. Sept. 29, 2016). Because
plaintiff failed to file a timely amended complaint,
the action was dismissed and plaintiff's subsequent
motion for reconsideration of dismissal was denied. The
instant complaint states similar factual allegations to the
previous complaint, but, unlike the previous complaint,
it names the individual corrections officers that plaintiff
alleges are responsible for the alleged deprivation of his
constitutional rights.
Plaintiff alleges that he was sitting on his bed when
two other inmates began fighting. When a corrections
officer sprayed K-9 chemical spray at the fighting inmates,
the chemical traveled into plaintiff's eyes due to a fan
blowing in plaintiff's direction. Plaintiff alleges that he
sought medical attention, but was diverted to the mental
health area because of an alarm. When the alarm desisted,
plaintiff was returned to his unit without seeing the doctor.
Plaintiff alleges that he was not brought to see a doctor
until two months after the incident. Plaintiff states that
the doctor provided him with eye drops and informed him
that he needed glasses due to deterioration of his eyes.

MEMORANDUM DECISION AND ORDER
Brian M. Cogan, U.S.D.J.
*1 Plaintiff pro se Julio Perez, who is currently
incarcerated at Rikers Island, brings this action pursuant
to 42 U.S.C. § 1983 against the City of New York,
New York City Department of Correction (“DOC”),
and multiple individual defendants alleging that his
constitutional rights were violated when a chemical agent
got into his eyes during a prison disturbance and he was
denied immediate medical treatment. The Court grants
plaintiff's request to proceed in forma pauperis pursuant to
28 U.S.C. § 1915. For the following reasons, the complaint
is dismissed with leave to amend to assert a claim for
deliberate indifference to plaintiff's serious medical needs.

BACKGROUND
This is the second complaint that plaintiff has filed related
to the alleged incident that occurred in June 2016 at
the Robert N. Davoren Complex at Rikers Island. The
previous complaint was dismissed for failure to state a
claim against the named defendants and plaintiff was

DISCUSSION
Under 28 U.S.C. § 1915A, a district court “shall review,
before docketing, if feasible or, in any event, as soon as
practicable after docketing, a complaint in a civil action
in which a prisoner seeks redress from a governmental
entity or employee of a governmental entity.” On review, a
district court shall dismiss a prisoner complaint sua sponte
if the complaint is “frivolous, malicious, or fails to state a
claim upon which relief may be granted; or seeks monetary
relief from a defendant who is immune from such relief.”
28 U.S.C. § 1915A(b). Pursuant to the in forma pauperis
statute, a district court must also dismiss a case if the
court determines that the complaint “(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).
*2 As an initial matter, the complaint is dismissed as to
DOC because New York City agencies, such as DOC, are
not suable entities. See N.Y.C. Admin. Code & Charter
Ch. 16 § 396; Cuadrado v. New York City Dep't of Corr.,

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1

Perez v. City of New York, Slip Copy (2017)

No. 08 Civ. 3026, 2009 WL 1033268, at *2 (S.D.N.Y. April
16, 2009) (dismissing the complaint against the New York
City Department of Correction because it is not a suable
entity). Accordingly, plaintiff's claims against the DOC
are dismissed for failure to state a claim upon which relief
may be granted.
Here, plaintiff brings claims for deprivations of
constitutional rights under 42 U.S.C. § 1983. To sustain
a claim brought under § 1983, plaintiff must allege that
the conduct complained of (1) “[was] committed by a
person acting under color of state law,” and (2) deprived ...
[him] of rights, privileges or immunities secured by the
Constitution or laws of the United States.” Pitchell v.
Callan, 13 F.3d 545, 547 (2d Cir. 1994). Moreover, he
must allege the direct or personal involvement of each
of the named defendants in the alleged constitutional
deprivation. Farid v. Ellen, 593 F.3d 233, 249 (2d Cir.
2010). “Because vicarious liability is inapplicable to ...§
1983 suits, a plaintiff must plead that each Governmentofficial defendant, through the official's own individual
actions, has violated the Constitution.” Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009). Plaintiff names the
Commissioner, the Warden, and the Deputy Warden of
the DOC as defendants, but he fails to allege that these
supervisory officials participated in the alleged harm or
could otherwise be held liable for any deprivation of his
constitutional rights. Accordingly, the claims against the
Commissioner, the Warden and the Deputy Warden are
dismissed.

Cir. 1999). The key question in determining wantonness
is “ ‘whether force was applied in a good-faith effort
to maintain or restore discipline, or maliciously and
sadistically to cause harm.’ ” Wright v. Goord, 554 F.3d
255 (2d Cir. 2009) (quoting Hudson v. McMillian, 503
U.S. 1, 7 (1992)). “[W]ide ranging deference” must be
accorded to the actions of prison officials in responding
to an inmate confrontation. Whitley v. Albers, 475 U.S.
312, 321 (1986). The objective component requires that
the alleged conduct be “sufficiently serious.” Farmer v.
Brennan, 511 U.S. 825, 834 (1994). “[N]ot 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 ... and an allegation indicating a de minimis use of
force will rarely suffice to state a constitutional claim.”
Sims v. Artuz, 230 F.3d 14, 22 (2000) (internal quotation
marks and citations omitted).

The complaint is also dismissed as to the City of New
York. A municipality can be liable under § 1983 only if
the plaintiff can show that a municipal policy or custom
caused the deprivation of his or her constitutional rights.
See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91
(1978). There are no such allegations here.

*3 Plaintiff's allegations do not meet either the objective
or subjective component for an excessive force claim.
Here, the alleged use of force was de minimis and
reasonable to restore order during the course of the
prison disturbance. Plaintiff also fails to allege any facts
supporting that the prison officials sprayed the K-9 to
“maliciously” cause harm to the two prisoners engaged in
the alteration, let alone to plaintiff who was not directly
sprayed with the K-9 and who was only affected by
the chemical due to a blowing fan. See Hernandez v.
C.O. Jones 17628, No. 06 CV 3738, 2006 WL 3335091
(E.D.N.Y. Oct. 10, 2006) (dismissing an inmate's excessive
force claim for failure to meet the requirements of an
Eighth Amendment claim where the inmate was sprayed
with pepper spray during a prison disturbance). At most,
plaintiff alleges that the corrections officers should have
been more careful and anticipated that the fan might blow
the spray in his direction. That is, if anything, a negligence
claim, not a constitutional claim.

Plaintiff's Eighth Amendment claim regarding allegations
of the defendant correction officers' use of K-9 spray to
break up a fight between two prisoners, which winded up
in plaintiff's eyes due to a blowing fan, is dismissed for
failure to state a claim. To state an Eighth Amendment
claim for use of excessive force, an inmate's allegations
must meet both a subjective and an objective requirement.
To meet the subjective requirement, the inmate must
show that the prison officials involved “had a wanton
state of mind when they were engaging in the alleged
misconduct.” Griffin v. Crippen, 193 F.3d 89, 91 (2d

For similar reasons, plaintiff also fails to state an
Eighth Amendment claim for the denial of medical care.
A claim for inadequate medical treatment may give
rise to a constitutional deprivation where a prisoner
alleges “acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs.” Estelle
v. Gamble, 429 U.S. 97 (1976). To sufficiently allege a
claim of deliberate indifference, plaintiff must state facts
to support that: (1) he suffered from a “serious medical
condition,” that is a condition that may “produce death,
degeneration, or extreme pain,” Hill v. Curcione, 657 F.3d

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2

Perez v. City of New York, Slip Copy (2017)

116, 122 (2d Cir. 2011) (citation and internal quotation
marks omitted), and (2) the individual defendants were
deliberately indifferent to his serious medical condition,
that is they “knew of and disregarded an excessive risk to
[plaintiff's] health or safety ...” Caiozzo v. Koreman, 581
F.3d 63, 72 (2d Cir. 2009) (internal quotation marks and
citation omitted).
Although the condition of plaintiff's eyes is likely
“sufficiently serious” to satisfy the objective component,
plaintiff fails to allege facts suggesting that defendants
acted with deliberate indifference to his condition. The
complaint states that plaintiff was initially prevented
from seeing a doctor only because an “alarm” was
ringing. There is nothing wrong with that unless plaintiff
pleads facts showing that (a) defendants could have taken
measures to treat him despite the chaotic events that
were occurring during the alarm; and (b) they recklessly
disregarded his condition when they could have taken
steps to treat him.
After the alarm desisted, plaintiff alleges that he was
brought back to his unit without seeing a doctor, but he
does not allege any facts indicating that defendants were
aware of plaintiff's condition. The complaint also fails
to explain why plaintiff did not see a doctor until two
months after the incident, or state any facts indicating
that defendants were aware of his condition and recklessly
ignored it during this time.

Plaintiff's request to proceed in forma pauperis is granted
pursuant to 28 U.S.C. § 1915. The complaint is dismissed
for failure to allege a plausible claim to relief pursuant to
28 U.S.C. § 1915(e)(2)(B)(ii). In light of plaintiff's pro se
status, however, he is granted twenty days to amend his
complaint if he has a deliberate indifference claim against
the individual correctional officers and/or other members
of Rikers Island staff. Should plaintiff decide to file an
amended complaint, it must be submitted within twenty
days of this Order, be captioned “Amended Complaint,”
and bear the same docket number as this Order. Plaintiff
is advised that the amended complaint will completely
replace the original complaint, so plaintiff must include in
it any allegations from the prior complaint that he wishes
to pursue against the individual defendants. Further, if
plaintiff fails to comply with this Order within the time
allowed, the action shall be dismissed and judgment shall
enter.
*4 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 purpose of an appeal. See Coppedge v. United States,
369 U.S. 438, 444-45 (1962).
SO ORDERED.

All Citations
Slip Copy, 2017 WL 684186

CONCLUSION

End of Document

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3

Ramos v. Quiros, Not Reported in F.Supp.2d (2012)

2012 WL 4501673
Only the Westlaw citation is currently available.
United States District Court,
D. Connecticut.
Miguel RAMOS, Plaintiff,
v.
Angel QUIROS, et al., Defendants.
No. 3:11–CV–1616 (RNC).
|
Sept. 27, 2012.
Attorneys and Law Firms
Miguel Ramos, Newtown, CT, pro se.

INITIAL REVIEW ORDER
ROBERT N. CHATIGNY, District Judge.
*1 Plaintiff, a Connecticut inmate proceeding pro se
and in forma pauperis, brings this action under 42
U.S.C. §§ 1981, 1983, 1985 and 1986 and Title II of
the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12101, et seq. Named as defendants, in their official
and individual capacities, are twenty-one officials and
employees of the Department of Correction (“DOC”)
at the following three facilities where the plaintiff
has been incarcerated: Corrigan Correctional Institution
(“CCI”); 1 Northern Correctional Institution (“NCI”); 2
and Garner Correctional Institution (“GCI”). 3 The
plaintiff claims that DOC personnel have been
deliberately indifferent to his serious mental health needs,
discriminated against him because of his mental disability
in violation of the ADA, failed and refused to provide
him with essential medication and treatment, retaliated
against him for seeking treatment, retaliated against him
for complaining and filing grievances, punished him for
his mental illness, confined him in inhumane conditions,
used excessive force against him in various forms, forcibly
medicated him against his will in retaliation for his
requests for help, and responded to his requests for help
by providing him with razors and encouraging him to
commit suicide. The plaintiff seeks money damages plus
declaratory and injunctive relief. For reasons that follow,
the plaintiff will be permitted to proceed with regard to
certain claims under 42 U.S.C. § 1983 and the ADA,

but not with regard to other claims, which are legally
insufficient and therefore dismissed.

Section 1915A(b)
Pursuant to 28 U.S.C. § 1915A(b), Congress has assigned
to federal district courts a duty to conduct an initial review
of every complaint filed by an inmate against government
officials. To properly perform this initial screening, a
court must review the inmate's allegations with care and
consider whether they provide the basis for a claim for
relief under applicable law. A complaint states a claim
upon which relief may be granted if it alleges facts that
allow 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). A complaint that includes
only “ ‘labels and conclusions,’... ‘a formulaic recitation
of the elements of a cause of action’ .... [or] ‘naked
assertion[s]’ devoid of ‘further factual enhancement’ “
does not meet the facial plausibility standard. Id. (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)).
In applying this standard, pro se complaints must be
interpreted liberally to raise the “strongest claims that
they suggest.” Phelan v. Thomas, 439 F. App'x 48, 50 (2d
Cir.2011).

Plaintiff's Allegations
The forty-three page complaint alleges the following. The
plaintiff has a known, documented history of serious
mental illness within the DOC, including numerous
suicide attempts involving self-mutilation.
*2 In August 2010, while at CCI, the plaintiff
experienced stressors that aggravated his mental illness.
Mental Health Supervisor John/Jane Doe, acting in
concert with Warden Erfe, signed a clearance form for
the plaintiff's transfer to NCI's administrative segregation
program without doing an adequate mental health
screening. The plaintiff was not given notice or a hearing
regarding this placement at NCI.
On August 16, 2010, the plaintiff was transferred to
NCI and placed in administrative segregation. The NCI
defendants failed to conduct an adequate mental health
evaluation before placing the plaintiff in segregation.
Immediately following this placement, the plaintiff's
mental illness worsened due to the harsh conditions of his
confinement.

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1

Ramos v. Quiros, Not Reported in F.Supp.2d (2012)

The plaintiff used an intercom system provided for
emergencies to repeatedly request help, explaining that
he was in crisis and feeling suicidal. When he used the
intercom system to call for help, however, his requests
were ignored. On some occasions, unknown officers
responded to his intercom calls with sarcasm and urged
him to kill himself. Plaintiff also submitted urgent requests
in writing that went unanswered.
On October 6, 2010, the plaintiff asked for help via
the intercom system. Officer Andrews then issued him a
razor, telling him, “Go kill yourself and do it right.” 4
The plaintiff used the razor to attempt suicide. He was
taken to the UCONN Medical Center for emergency
treatment. At UCONN, he received multiple sutures to
close two large lacerations. The plaintiff was then returned
to NCI and placed on suicide watch in a strip cell in
the infirmary. While the plaintiff was in the infirmary,
defendant Andrews issued him a disciplinary report based
on his suicide attempt. The plaintiff was later found guilty
and, as a result, punished for his mental illness.
After the plaintiff was discharged from the infirmary,
he was placed in a cell with another suicidal inmate.
He was told that if he objected to this arrangement, he
would receive another disciplinary report. The plaintiff's
severe depression and suicidal thoughts were aggravated
by being placed in the cell with the suicidal inmate. The
plaintiff sought help from defendants Frayne and Quiros
but they did nothing.
On November 6, 2010, the plaintiff witnessed his
cellmate attempt suicide by cutting himself with a razor
in the shower. The plaintiff's major depression was
severely aggravated by this incident and, as a result,
he soon attempted to commit suicide by overdosing
on medication. Correctional staff were notified. They
sprayed the plaintiff with mace, which was punitive and
unnecessary. He was placed in non-therapeutic, in-cell
restraints, as punishment for his suicidal actions. While
thus restrained, he was sprayed again with a chemical
agent by Lieutenant Cladio. 5
For four days, the plaintiff was kept in full, in-cell
restraints. The use of these restraints was unnecessary,
punitive and harmful. As a result of the in-cell restraints,
the plaintiff was prevented from eating properly or
accessing the toilet and he soiled himself. Defendant
Frayne denied any type of relief and forced the plaintiff

to remain in soiled garments. The prolonged placement
in these restraints without any relief produced swelling,
abrasions and pain and further worsening of the plaintiff's
mental illness.
*3 On November 9, 2010, defendant Frayne approved
removal of the in-cell restraints and cleared the plaintiff
for return to general population without evaluating him
or providing him with needed treatment. Thereafter, the
plaintiff continued to ask for treatment. He submitted
written requests to defendants Frayne and Fuery and
verbal requests to numerous members of the mental health
staff. His requests were not taken seriously.
On December 4, 2010, defendant Clark provided the
plaintiff with a razor, although he knew the plaintiff was
on “razor restriction,” telling him, “Make sure you're dead
by the time I return.” Plaintiff used the razor to try to cut
an artery and was taken to UCONN Medical Center for
emergency treatment, where he received fourteen sutures.
He was then returned to the NCI infirmary.
On December 6, 2010, defendant Frayne cleared the
plaintiff for return to general population on behavior
observation status (“BOS”). The cells for BOS are isolated
and cold. BOS is used to punish inmates with mental
illness and deter them from seeking help. Being in
isolation further aggravated the plaintiff's mental illness.
On December 7, he found a sharp object in his cell and
used it to cut himself. He smeared blood and feces on
his body and repeatedly slammed his head against the
wall. He was placed in restraints, denied a shower, and
continued on BOS status with no mental health treatment.
In the months that followed, the plaintiff unsuccessfully
sought help for his major depression and suicidal
thoughts. He complained about the denial of treatment
to defendants Frayne, Fuery, Quiros, Powers, Faucher
and Gagne. But proper treatment still was not provided.
The denial of mental health care aggravated the plaintiff's
major depression and made him even more unstable.
The plaintiff's condition was further aggravated by his
continuous placements in BOS isolation cells. During
these placements, the plaintiff was sprayed with chemical
agents, and placed in four-point restraints, with no
mattress and only paper to cover himself. These
placements were condoned by defendants Quiros, Powers,
Faucher, Frayne, Ducate, Fuery, Berger, Gagne, and

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2

Ramos v. Quiros, Not Reported in F.Supp.2d (2012)

Wright, all of whom received updates and reports
concerning the plaintiff's status.

rendered him legally incompetent when he appeared in
court.

On March 16, 2011, the plaintiff was given a razor by
an unidentified correctional officer, who stated, “Can you
please get it right this time, you're like a bad penny that
won't go away, just die.” The plaintiff used the razor to
attempt suicide.

Discussion
The plaintiff's allegations, accepted as true and interpreted
liberally as required by law, provide a sufficient basis for
the following claims:

On March 24, 2011, the plaintiff sought help from a female
social worker, Jill Doe. She retaliated by placing him on
BOS status.
On April 14, 2011, while again on BOS status, the plaintiff
attempted to hang himself. He received a disciplinary
report as punishment for his suicide attempt. Another
suicide attempt occurred on May 4, 2011, while the
plaintiff was on BOS status. Plaintiff's numerous suicide
attempts at NCI were known to defendants Frayne,
Gagne, Quiros, Berger, Ducate, Powers and Wright, all of
whom were continually kept informed of his status.
*4 On May 11, 2011, the plaintiff was transferred to GCI
and placed in the Behavioral Engagement Unit (“BEU”).
Shortly before the transfer, the plaintiff had begun a
“hunger strike” to protest being placed on a “loaf diet.”
The transfer to GCI occurred without prior notice and a
hearing.
At GCI, a “team” was assigned to provide services to
the plaintiff. He sought mental health treatment from
members of the team but they failed to help. When his
requests for help were denied, he submitted requests for
administrative remedies, which were routinely denied by
defendants Bogdonoff and Bush. Without appropriate
intervention, more suicide attempts followed resulting in
severe injuries.
Plaintiff eventually completed the BEU program, but at
the time he filed this complaint, he still was not receiving
proper treatment for his severe mental illness.
Plaintiff alleges that while he was at NCI, he was
medicated involuntarily on numerous occasions in
retaliation for his attempts to get help. He alleges that
he was “force medicated” by defendants Frayne and
Gagne prior to attending court dates. He alleges that the
medications left him heavily sedated and incoherent and

CCI Defendants:
(1) Section 1983 claims under the Eighth and Fourteenth
Amendments for deliberate indifference and denial of
procedural due process. In essence, the plaintiff alleges
that his documented history of severe mental illness
required that he receive a rigorous mental health
evaluation, notice and hearing prior to his transfer to
NCI's administrative segregation program, since such a
transfer involved a substantial risk of serious harm to his
health and safety.
No other claims are stated against these defendants.

NCI Defendants:
(2) Section 1983 claims under the First, Eighth
and Fourteenth Amendments for retaliation, deliberate
indifference, inhumane conditions of confinement,
excessive force, and violations of substantive and
procedural due process.
(3) A claim under Title II of the ADA, which requires
a plaintiff to allege: “(1) that he is a ‘qualified
individual’ with a disability; (2) that he was excluded
from participation in a public entity's services ... or was
otherwise discriminated against by a public entity; and
(3) that such exclusion or discrimination was due to his
disability.” Hargrave v. Vermont, 340 F.3d 27, 34–35 (2d
Cir.2003). These pleading requirements are satisfied when,
as here, an inmate alleges that DOC staff denied him
mental health care, harassed him, and retaliated against
him when he attempted to complain about his treatment.
Phelan v. Thomas, 439 F. App'x 48, 50 (2d Cir.2011).
No other claims are stated against these defendants.

GCI Defendants
*5 (4) Section 1983 claims under the Eighth Amendment
for deliberate indifference.

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3

Ramos v. Quiros, Not Reported in F.Supp.2d (2012)

No other claims are stated against these defendants.
The complaint fails to state a claim for relief against the
defendants under the other statutes cited by the plaintiff
for the following reasons. To state a claim under section
1981, the plaintiff must allege that he is a member of
a racial minority and was subjected to intentional racial
discrimination concerning at least one of the activities
enumerated in the statute, i.e., he was prevented from
making and enforcing contracts, suing and being sued,
or giving evidence on the basis of race. See Mian v.
Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087
(2d Cir.1993). The plaintiff does not allege interference
with any of the enumerated activities. Thus, his section
1981 claim fails as a matter of law and is dismissed
pursuant to 28 U.S.C. § 1915A(b)(1).
Section 1986 provides no substantive rights; it provides
a remedy for the violation of section 1985. See Adickes
v. S.H. Kress & Co ., 398 U.S. 144, 222 n. 28 (1970)
(Brennan, J., concurring in part and dissenting in part).
Thus, a prerequisite for an actionable claim under section
1986 is a viable claim under section 1985. No such claim
is presented. The first two subsections of 42 U.S.C. § 1985
are not relevant to this action: subsection (1) prohibits
conspiracies to prevent federal officials from performing
their duties; subsection (2) prohibits conspiracies to deter
witnesses from participating in state or federal judicial
proceedings. The plaintiff is not a federal official and
his claims are not related to participation of witnesses in
judicial proceedings.
To state a claim under § 1985(3), the plaintiff must allege
the following: (1) the defendants were part of a conspiracy;
(2) the purpose of the conspiracy was to deprive a person
or class of persons of the equal protection of the laws, or of
the equal privileges and immunities under the laws; (3) an
overt act was taken in furtherance of the conspiracy; and
(4) the plaintiff was injured in his person or property or
deprived of a right or privilege. See Griffin v. Breckenridge,
403 U.S. 88, 102–03 (1971). Importantly, the plaintiff must
allege that the conspiracy was motivated by a “racial, or
perhaps otherwise class-based, invidiously discriminatory
animus.” Id. at 102.
The plaintiff asserts no facts to support a plausible claim
of conspiracy on the part of the defendants. Nor does
he allege that the actions of any defendant were taken

because of his race or other class-based discriminatory
animus. The section 1985 claim is therefore dismissed.
See 28 U.S.C. § 1915A(b)(l). Because the plaintiff has
not stated a section 1985 claim, his section 1986 is also
dismissed. See id.
Accordingly, the Court enters the following orders:
(1) The claims brought pursuant to 42 U.S.C. §§ 1981,
1985 and 1986 are DISMISSED pursuant to 28 U.S.C.
§ 1915A(b)(1), and the section 1983 claims for money
damages against defendants in their official capacities are
DISMISSED pursuant to 28 U.S.C. § 1915A(b)(2). 6
*6 (2) The claims under § 1983 and the ADA will proceed
against the defendants as discussed above.
(3) Within fourteen (14) days of this order, the U.S.
Marshals Service will serve the summons, a copy of the
complaint [doc. # 1] and this order on all the defendants
in their official capacities by delivering the necessary
documents in person to the Office of the Attorney
General, 55 Elm Street, Hartford, CT 06141.
(4) Within fourteen (14) days of this order, the Pro
Se Prisoner Litigation Office will ascertain from the
Department of Correction Office of Legal Affairs the
current work addresses for the defendants and mail waiver
of service of process request packets to each defendant in
his or her individual capacity at his or her current work
address. On the thirty-fifth (35th) day after mailing, the
Pro Se Office shall report to the court on the status of
all waiver requests. If any defendant fails to return the
waiver request, the Clerk shall make arrangements for
in-person service by the U.S. Marshals Service and the
defendant shall be required to pay the costs of such service
in accordance with Federal Rule of Civil Procedure 4(d).
(5) The Pro Se Prisoner Litigation Office will send a
courtesy copy of the complaint and this Order to the
Connecticut Attorney General and the Department of
Correction Legal Affairs Unit.
(6) The Pro Se Prisoner Litigation Office will send written
notice to the plaintiff of the status of this action, along
with a copy of this Order.
(7) Defendants will file their response to the complaint,
either an answer or motion to dismiss, within seventy (70)

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4

Ramos v. Quiros, Not Reported in F.Supp.2d (2012)

days from the date of this order. If the defendants choose
to file an answer, they shall admit or deny the allegations
and respond to the cognizable claims recited above. They
may also include any and all additional defenses permitted
by the Federal Rules.
(8) Discovery, pursuant to Federal Rules of Civil
Procedure 26 through 37, will be completed within seven
months (210 days) from the date of this order. Discovery
requests need not be filed with the court.
(9) All motions for summary judgment will be filed within
eight months (240 days) from the date of this order.

(10) Pursuant to Local Civil Rule 7(a), a non-moving
party must respond to a dispositive motion within twentyone (21) days of the date the motion was filed. If no
response is filed, or the response is not timely, the
dispositive motion can be granted absent objection.
So ordered.

All Citations
Not Reported in F.Supp.2d, 2012 WL 4501673

Footnotes

1
2
3
4
5
6

The CCI defendants are Warden Scott Erfe and Jane/John Doe Mental Health Supervisor.
The NCI defendants are former Warden Angel Quiros, former Deputy Warden Lauren Powers, Dr. Carson Wright,
Dr. Gerard Gagne, Clinical Social Worker Odette Bogle, Correctional Officer Clark, Dr. Mark Frayne, Health Services
Administrator Richard Furey, Dr. Susan Ducate, and Dr. Robert Berger.
The GCI defendants are Warden Scott Semple, Deputy Warden Amonda Hannah, former Unit Manager Henry Falcone,
Unit Manager Robert Melms, Dr. Tom Kocienda, Dr. Tod Bogdonoff, Dr. Carson Wright, Dr. Raymond Castro, Clinical
Social Worker Nancy Bertulice, and Health Services Administrator Rick Bush.
Officer Andrews is not named as a defendant in the complaint.
Like Officer Andrews, Lieutenant Cladio is not named as a defendant in the complaint.
To the extent the plaintiff seeks to recover money damages against the defendants in their official capacities, any such
claims are barred by the Eleventh Amendment and must be dismissed. See Kentucky v. Graham, 473 U.S. 159, 169
(1985) (holding that the Eleventh Amendment, which protects the state from suits for monetary relief, also protects state
officials sued for damages in their official capacity); Quern v. Jordan, 440 U.S. 332, 341 (1979)(affirming that section
1983 does not override a state's Eleventh Amendment immunity).

End of Document

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5

Reeder v. Hogan, Not Reported in F.Supp.2d (2013)
2013 WL 2632600

2013 WL 2632600
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Raszell REEDER, Plaintiff,
v.
M. HOGAN, et al, Defendants.
No. 9:09–CV–520 (NAM/ATB).
|
June 11, 2013.
Attorneys and Law Firms
Raszell Reeder, Malone, NY, pro se.
Hon. Eric T. Schneiderman, Attorney General for
the State of New York, Adrienne J. Kerwin, Esq.,
Assistant Attorney General, of Counsel, Albany, NY, for
Defendants.
Justin C. Levin, Assistant Attorney General.

ORDER
NORMAN A. MORDUE, District Judge.
*1 The above matter comes to me following a Report–
Recommendation by Magistrate Judge Andrew T. Baxter,
duly filed on the 17th day of May 2013. Following
fourteen (14) days from the service thereof, the Clerk has
sent me the file, including any and all objections filed by
the parties herein.
After careful review of all of the papers herein, including
the Magistrate Judge's Report–Recommendation, and no
objections submitted thereto, it is
ORDERED that:
1. The Report–Recommendation is hereby adopted in its
entirety.
2. Defendant William Allan's summary judgment motion
(Dkt. No. 162) is granted, and the complaint is dismissed
in its entirety.

3. The Clerk of the Court shall serve a copy of this Order
upon all parties and the Magistrate Judge assigned to this
case
IT IS SO ORDERED.

REPORT AND RECOMMENDATION
ANDREW T. BAXTER, United States Magistrate Judge.
I. Background
Plaintiff commenced this action pro se, seeking damages
for injuries resulting from various incidents occurring
between 2007 and 2008. (Dkt. No. 1). Liberally construed,
plaintiff's original complaint set forth several First and
Eighth Amendment claims, including excessive force,
denial of medical care, failure to receive proper Ramadan
meals, and challenges to his conditions of confinement. Id.
On November 16, 2009, defendants filed a motion to
dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)
(6). (Dkt. No. 69). While defendants' motion to dismiss
was pending, plaintiff filed an amended complaint (“First
Amended Complaint”) on January 4, 2010. (Dkt. No. 84).
Although the motion to dismiss was filed prior to the First
Amended Complaint, the only amendment to the original
complaint was the addition of two named defendants in
place of two of the John/Jane Doe defendants. The new
defendants requested that they be allowed to join the
pending motion to dismiss. (Dkt.Nos.72, 87). The court
granted these requests. (Dkt.Nos.77, 88).
On September 29, 2010, then-Chief District Judge Mordue
granted defendants' motion in part and denied it in part.
(Dkt. No. 122). On October 8, 2010, this action was
referred to Magistrate Judge Victor E. Bianchini for
settlement proceedings, pursuant to the Pro Se Prisoner
Settlement Program, and the case was stayed in all other
respects until the proceedings were completed. (Dkt. No.
124).
On November 1, 2010, plaintiff filed a motion to amend,
together with a Second Amended Complaint. (Dkt. No.
129). In light of the stay, the Court did not address
the motion. On January 31, 2011, the stay was lifted.
(Dkt. No. 133). Before this Court could address plaintiff's
November 1, 2010 motion, plaintiff filed another motion
to amend on May 4, 2011, together with a Third Amended

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1

Reeder v. Hogan, Not Reported in F.Supp.2d (2013)
2013 WL 2632600

Complaint. (Dkt. No. 141). In an order dated June 22,
2011, this court denied plaintiff's motion to amend filed on
May 4, 2011, but granted, in part, the November 1, 2010
motion. (Dkt. No. 145). The operative pleadings were
then plaintiff's First Amended Complaint, filed January 4,
2010, without the claims that were dismissed as a result of
Judge Mordue's September 29, 2010 Order, read together
with plaintiff's Second Amended Complaint. Defendants
filed a motion for summary judgment on December 27,
2011. (Dkt. No. 150). Plaintiff filed a response on January
9, 2012. (Dkt. No. 154).
*2 On September 19, 2012, Judge Mordue granted
defendants' motion for summary judgment (Dkt. No.
150), and all claims against all defendants were dismissed
except for plaintiff's claim based on excessive force against
defendant Allan, which was denied without prejudice to
defendant Allan filing another summary judgment motion
(Dkt. No. 161). On October 19, 2012, defendant Allan
filed his motion for summary judgment. (Dkt. No. 162).
Plaintiff opposed the motion. (Dkt. No. 165).

II. Facts and Contentions
Plaintiff alleges that on August 25, 2008, defendants
Uhler, Allen, Marcil, and other correction officers wanted
plaintiff to come out of his cell, but he “disagreed
with coming out,” because “they did not come with [a]
camera.” (First Am. Compl. ¶ 24, 41). A “distraction unit”
was called, bringing a camera, so plaintiff “agreed to come
out,” but defendants Uhler, Allen, Marcil and others still
used mace “repeatedly.” Id. Plaintiff was placed in full
restraints and escorted to the SHU. (First Am. Compl. ¶
24–25; Pl.'s Dep. 109–12 (Dkt. No. 162–3)).
For the reasons below, the court recommends granting
defendant's motion and dismissing plaintiff's complaint in
its entirety.

III. Summary Judgment
Summary judgment may be granted when the moving
party carries its burden of showing the absence of a
genuine issue of material fact. Fed.R.Civ.P. 56; Thompson
v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990). “Only disputes
over facts that might affect the outcome of the suit
under governing law will properly preclude summary
judgment.” Salahuddin v. Coughlin, 674 F.Supp. 1048,
1052 (S.D.N.Y.1987) (citation omitted). A dispute about
a genuine issue of material fact exists if the evidence is such

that “a reasonable [fact finder] could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In meeting its burden, the party moving for summary
judgment bears the initial responsibility of informing
the court of the basis for the motion and identifying
the portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with
the affidavits, if any, which it believes demonstrate the
absence of a genuine issue of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986); Fed.R.Civ.P. 56(c)(1)(A). If the moving party
satisfies its burden, the nonmoving party must move
forward with specific facts showing that there is a genuine
issue for trial. Salahuddin v. Goord, 467 F.3d 263, 272–73
(2d Cir.2006). In determining whether there is a genuine
issue of material fact, a court must resolve all ambiguities,
and draw all inferences, against the movant. See United
States v. Diebold, Inc. ., 369 U.S. 654, 655, 82 S.Ct. 993, 8
L.Ed.2d 176 (1962). However, when the moving party has
met its burden, the nonmoving party must do more than
“simply show that there is some metaphysical doubt as
to the material facts.” Matsushita Electric Industrial Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585–86, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. at 247–48.

IV. Excessive Force
*3 Plaintiff alleges that various correction officers and
a “distraction” unit used excessive force against him on
August 25, 2008.

A. Legal Standards
Inmates 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. Hudson v.
McMillian, 503 U.S. 1, 9–10, 112 S.Ct. 995, 117 L.Ed.2d
156 (1992). The Eighth Amendment's prohibition against
cruel and unusual punishment precludes the “unnecessary
and wanton infliction of pain.” Gregg v. Georgia, 428 U.S.
153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Sims v.
Artuz, 230 F.3d 14, 20 (2d Cir.2000). To sustain a claim of
excessive force under the Eighth Amendment, a plaintiff
must establish both objective and subjective elements.
Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir.1999).

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2

Reeder v. Hogan, Not Reported in F.Supp.2d (2013)
2013 WL 2632600

In order to satisfy the objective element of the
constitutional standard for excessive force, the defendants'
conduct must be “ ‘inconsistent with the contemporary
standards of decency.’ ” Whitely v. Albers, 475 U.S. 312,
327, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (citation
omitted); Hudson, 503 U.S. at 9. “[T]he malicious use of
force to cause harm constitute[s][an] Eighth Amendment
violation per se[,]” regardless of the seriousness of the
injuries. Blyden, 186 F.3d at 263 (citing Hudson, 503
U.S. at 9). “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, 230 F.3d at 22 (citation omitted).
The subjective element requires a plaintiff to demonstrate
the “necessary level of culpability, shown by actions
characterized by wantonness.” Id. at 21 (citation 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). In determining
whether defendants acted in a malicious or wanton
manner, the Second Circuit has identified five factors to
consider: the extent of the injury and the mental state of
the defendant; the need for the application of force; the
correlation between that need and the amount of force
used; the threat reasonably perceived by the defendants;
and 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).

B. Application
Plaintiff claims that on August 25, 2008, Sergeant Rendle
told plaintiff to get dressed so he could return to his cell
in the Special Housing Unit (“SHU”). (Pl.'s Dep. 101)
(Dkt. No. 162–3). Plaintiff said that he and Sergeant
Rendle exchanged “disrespectful statements,” and he told
Sergeant Rendle, “The door is locked, but when I catch
you, you know I'm going to hurt you .” (Pl.'s Dep. 101–
02). Because plaintiff refused to comply with direct orders,
it was apparent that plaintiff was not going to voluntarily
leave his cell, and an extraction team was called.

*4 Sergeant Rendle's report states that when he returned
to plaintiff's cell with the extraction team, plaintiff was
standing in his cell with something in his right hand. (Dkt.
No. 162–9 at 18). Sergeant Rendle ordered plaintiff several
times to drop what he was holding in his hand, after which
plaintiff threw it against the door of the cell and retrieved
what appeared to Sergeant Rendle to be feces from the
toilet. Id. Sergeant Rendle's report indicates that plaintiff
continued to refuse to comply with direct orders. Id. In
an effort to subdue plaintiff so he could be removed from
his cell, the extraction team used chemical agents. Id. Even
after the chemical agents were used, plaintiff refused to
comply, so the extraction team entered and restrained
plaintiff. Id.
Plaintiff disputes the reason why the extraction team
came to his cell on August 25, 2008, and claims that
he complied with instructions and stood with his back
to the door so he could be handcuffed. (Pl.'s Dep. 103–
04). Plaintiff claims that Sergeant Rendle started spraying
mace at plaintiff without provocation or warning. (Pl.'s
Dep. 104–05). Plaintiff claims that when the members
of the extraction unit told him to get on the floor, he
complied. (Pl.'s Dep. 105–07). Plaintiff testified that after
he was handcuffed, no more mace was sprayed. (Pl.'s Dep.
117). The chemical agent affected plaintiff's eyes and his
breathing, and within one minute he was taken to the
decontamination shower, and within seven minutes, the
effects from the chemical agent were gone. (Pl.'s Dep. 113,
115). Plaintiff claims that defendant Allan is responsible
for the use of excessive force against him on August 25,
2008. The other officers on the extraction team are not
defendants in this action. 1
Defendant Allan was one of the lieutenants in charge of
the Correction Emergency Response Team (CERT) at
Clinton in August 2008. (Dkt. No. 162–9 at 1–2). The
record contains a declaration by defendant Allan, who
affirmed that he was called to plaintiff's cell on August
25, 2008, and he attempted to convince plaintiff to comply
with orders to exit his cell so he could be escorted back to
the SHU. (Dkt. No. 162–9 at 2). Defendant Allan affirmed
that plaintiff continued to ignore orders to exit his cell,
and defendant Allan then ordered Sergeant Rendle to use
force to extract plaintiff from his cell. Sergeant Rendle
sprayed two one-second bursts of chemical agents a
total of five times at plaintiff. (Id.). Defendant Allan
affirmed that even after the chemical agents were sprayed,
plaintiff still would not exit his cell. (Id.). The extraction

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3

Reeder v. Hogan, Not Reported in F.Supp.2d (2013)
2013 WL 2632600

team then entered plaintiff's cell and using body holds,
placed plaintiff in restraints and escorted him to the
decontamination shower. (Id.). Plaintiff was escorted to
the SHU, where he was examined by defendant Nurse
Farnan, who found no injuries. (Dkt. No. 162–9 at 15).
Defendant Allan submitted a video of the cell extraction
that occurred on August 25, 2008. 2 (Dkt. No. 159). The
video is approximately 30 minutes long and documents
the cell extraction team at plaintiff's cell through when he
arrives at his new cell. (Id.). The video depicts that when
the extraction team arrives at the cell, plaintiff is given one
last direct order to exit the cell, and he is told to come to
the front of the cell so he can be handcuffed through the
food slot. (Id. at 2:32:30). Plaintiff approaches the door
to the cell, and one of the extraction team asks what is in
plaintiff's hand. (Id. at 2:32:47). Plaintiff is repeatedly told
to drop what he has in his hand. (Id. at 2:32:48, 50, 52, 55).
At that point, plaintiff backs away from the door and goes
to the floor. (Id. at 2:32:54). He is again told repeatedly
to drop what he has in his hand (Id. at 2:32:58; 2:33:00,
04, 06, 09, 22, 24, 30, 54, 55, 56; 2:34:11, 22, 39, 42, 50),
and get away from the toilet (Id. at 2:34:37; 2:35:08, 11, 29,
32). A member of the team is heard to remark, “He almost
got you that time,” apparently in reference to plaintiff
throwing material at the cell door. (Id. at 2:35:05). After
plaintiff is subdued by the extraction team, the camera
pans over the door, showing where what appears to be
feces have been thrown at the door. (Id. at 2:36:49–53).
The camera also shows a toilet that has been used, but not
flushed. (Id. at 2:36:55–57).
*5 The video corroborates that when plaintiff
approached the door, he was not complying with orders,
but instead had what was apparently feces in his hand.
When he was asked to drop what he was holding, plaintiff
moved away from the door. Defendant Allan authorized
the use of chemical agents to subdue plaintiff, allowing the
extraction team to enter his cell and restrain him. Plaintiff
was repeatedly warned and refused to comply with the
guards' orders. He then escalated his defiance by throwing
feces at the door of his cell.

peacefully. Defendant Allan did not authorize the use
of force to subdue plaintiff without provocation. The
defendants used necessary force to restore discipline and
subdue plaintiff, who was aggressively refusing to comply
with orders. In addition, defendants' actions indicate
that their use of chemical agents was in response to
the perceived threat that plaintiff aggressively refuse to
comply. Defendants have shown that there is no issue of
fact as to either of the elements of an Eighth Amendment
violation. Accordingly, the claim against defendant Allan
should be dismissed. See, e.g., Alston v. Butkiewicus, No.
3:09–CV207, 2012 WL 6093887, 2012 U.S. Dist. LEXIS
173770, at *40–42 (D.Conn. Dec. 7, 2012) (use of chemical
agent did not constitute excessive force when inmate
refused to comply with direct orders); Carolina v. Pafumi,
No. 3:12–cv–163, 2013 WL 1673108, 2013 U.S. Dist.
LEXIS 55209, at *8–12 (D.Conn. April 17, 2013) (use
of chemical agent to subdue noncompliant inmate did
not constitute excessive force); Green v. Morse, 2009 U.S.
Dist. LEXIS 42368, at *38, 42, 2009 WL 1401642 (use of
chemical agent on noncompliant inmate did not constitute
excessive force).
WHEREFORE, based on the findings above, it is
RECOMMENDED, that defendant's summary judgment
motion (Dkt. No. 162), be GRANTED, and the complaint
DISMISSED IN ITS ENTIRETY.
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 F.Supp.2d, 2013 WL 2632600

No reasonable finder of fact would credit plaintiff's
claims that he was compliant with orders to exit his cell

Footnotes

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4

Reeder v. Hogan, Not Reported in F.Supp.2d (2013)
2013 WL 2632600

1
2

The Use of Force Report dated August 25, 2008, indicates that R. Rendle, M. Chagnon, N. Moore, E. Owen, and T.
Saunders assisted on the extraction team, none of whom were named as defendants in this action. (Dkt. No. 162–9 at
11, 14).
The court may rely on the video of the relevant events in concluding that no reasonable fact finder could credit the
plaintiff's inconsistent claims about the incident. See, e.g., Kalfus v. New York and Presbyterian Hosp., 476 F. App'x 877,
880–81 (2d Cir.2012) (the video demonstrated that plaintiff resisted arrest by refusing to stand up or be handcuffed, and
that the patrolmen used only reasonable force to overcome his resistance; no reasonable fact finder could conclude that
defendants applied excessive force); Green v. Morse, 00–CV–6533, 2009 WL 1401642, 2009 U.S. Dist. LEXIS 42368,
at *27 (W.D.N.Y. May 18, 2009) (this court may rely on the video evidence clearly showing that some use of force was
necessary to grant summary judgment and dismiss plaintiff's excessive force claim) (citations omitted).

End of Document

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© 2017 Thomson Reuters. No claim to original U.S. Government Works.

5

Santos v. New York City Dept. of Correction, Not Reported in F.Supp.2d (2010)

2010 WL 1142066
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Jose SANTOS, Plaintiff,
v.
NEW YORK CITY DEPARTMENT
OF CORRECTION, et al., Defendants.
No. 08 Civ. 8790(GBD)(THK).
|
Feb. 25, 2010.

REPORT AND RECOMMENDATION
THEODORE H. KATZ, United States Magistrate Judge.
*1 TO: HON. GEORGE B. DANIELS, UNITED
STATES DISTRICT JUDGE
FROM: THEODORE H. KATZ, UNITED STATES
MAGISTRATE JUDGE
Plaintiff Jose Santos (“Plaintiff”), proceeding pro se,
brings this action pursuant to 42 U.S.C. § 1983, against
Defendants the New York City Department of Correction
(“DOC”), Correction Officer Brown (“Defendant
Brown”), Correction Officer Arias (“Defendant Arias”),
and Correction Officer Waiters (“Defendant Waiters”)
(collectively, “Defendants”), alleging that they violated
his rights under the Eighth Amendment of the United
States Constitution.
Presently before the Court is Defendants' Motion to
Dismiss the Complaint under Federal Rule of Civil
Procedure 12(b)(6), for failure to state a claim upon which
relief can be granted. The motion was referred to this
Court for a Report and Recommendation, in accordance
with 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72.1(a)
of the Local Civil Rules of the Southern District of New
York. For the reasons that follow, the Court recommends
that the motion be denied in part, and granted in part.

BACKGROUND
The following facts, taken from Plaintiff's Amended
Complaint, dated November 20, 2008 (“Am.Compl.”)

unless otherwise noted, are presumed to be true for the
purposes of evaluating the instant motion:
The events at issue in this action took place at the Rikers
Island prison facility, where Plaintiff was incarcerated
during the relevant period. (See Am. Compl. ¶ 2.) On April
15, 2008, Plaintiff was standing in line, waiting to receive
his dinner tray. (See id. ¶¶ 8, 9.) He observed Defendant
Brown “playing with another inmate in a sexual manner”
in a dorm area that adjoined the area where food was being
served. (See id. ¶ 9.) Defendant Brown became upset with
the other inmate, and told him that she was “going to get
him.” (See id. ¶ 10.) Defendant Brown then picked up a fire
extinguisher and chased the other inmate, who ran into the
food-service area where Plaintiff was standing. (See id. ¶
11.)
Defendant Brown sprayed the extinguisher at the fleeing
inmate, but her aim was apparently inexact: the highpressure stream of chemicals from the extinguisher hit
Plaintiff in the face and left eye. (See id. ¶ 12.) When the
chemicals hit Plaintiff, he immediately lost sight, and felt
“burn[ing]” and “extreme pain” in his eye and on his skin.
(See id.)
Plaintiff requested that Defendant Brown take him to a
hospital or clinic to be treated, and asked to see a captain.
(See id. ¶ 13.) In response, Defendant Brown allegedly told
him that she “did not care if [he] died,” and ordered him
to “get the fuck away from her.” (See id. ¶ 14.) Plaintiff
then asked Defendant Arias, who had witnessed Brown
spraying the fire extinguisher, to send him to the clinic,
but Arias told him that he was “just the Meal Relief
Officer,” and could not do anything to help Plaintiff with
his burning eye and skin. (See id.) Plaintiff requested the
same help from Defendant Waiters, but she too refused,
telling Plaintiff that she did not want to get involved
because Defendant Brown was the “A–Officer.” (See id.
¶ 16.)
*2 Plaintiff attempted to rinse off the chemicals himself
by splashing water on his face and eyes. (See id.) After
the officers again refused his request to go to the clinic for
treatment, Plaintiff placed a call to his family, and told
them what had happened. (See id. ¶ 17.) They immediately
called the prison to inform them that Plaintiff was being
denied medical care after being sprayed in the face and eye
with chemicals. (See id.) An unnamed “female captain,”
who is not a defendant in this action, then arrived to

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investigate the incident, and sent Plaintiff to the clinic
approximately two hours later. (See id. ¶ 18.)
The medical personnel at the prison's clinic spent four to
five hours flushing the chemicals from Plaintiff's face and
eye, and then sent him to a doctor for further examination
and treatment. (See id. ¶¶ 19–20.) The doctor, an eye
specialist, took x-rays and gave Plaintiff medication. (See
id. ¶ 19.) He informed Plaintiff that he was lucky not
to have lost an eye, because the chemicals in the fire
extinguisher, sprayed at such high pressure, could have
caused severe damage. (See id. ¶ 20.) The doctor found
that the chemicals had caused partial vision loss, and that
Plaintiff's left eye was “extremely irritated.” (See id.)

DISCUSSION
Plaintiff contends that his Eighth and Fourteenth
Amendment rights 1 were violated when Defendant
Brown sprayed him with the fire extinguisher, and when
Defendants Brown, Arias, and Waiters (the “Individual
Defendants”) refused to provide him with medical care for
the injuries he suffered. He also claims that the Individual
Defendants and DOC “fostered an [u]nwritten [p]olicy in
which [f]emale [c]orrection [o]fficers are allowed to [p]lay
[s]exual [g]ames with [i]nmates,” and that this policy led to
the injuries he suffered. (See Am. Compl. ¶ 22.)
Defendants have moved to dismiss Plaintiff's claims,
arguing, among other things, that he has failed to state
an Eighth Amendment claim against Defendant Brown
for spraying him with the fire extinguisher, because he has
not alleged that she maliciously or sadistically intended
to harm him (see Defendants' Memorandum of Law
in Support of Motion to Dismiss, dated May 14, 2009
(“Def.'s Mem.”), at 8–10); that he has failed to state an
Eighth Amendment claim against any of the Individual
Defendants for failure to provide him with medical care
because he has not alleged a “serious medical need” to
which they were deliberately indifferent (see id . at 11–
15); that DOC is not a suable entity and therefore not
a proper party to this action (see id. at 15–16); and
that, to the extent Plaintiff's claims are construed to be
against the City of New York rather than DOC, they
are insufficient because Plaintiff has failed to adequately
allege the existence of a city policy or custom responsible
for the alleged violation of his constitutional rights (see id.
at 16–18).

I. Standard of Review
*3 In deciding a motion to dismiss under Rule 12(b)(6),
a court “must accept as true all of the factual allegations
set out in [the] plaintiff's complaint, draw inferences
from those allegations in the light most favorable to
[the] plaintiff, and construe the complaint liberally.” Roth
v. Jennings, 489 F.3d 499, 510 (2d Cir.2007) (quoting
Gregory v. Daly, 243 F.3d 687, 691 (2d Cir.2001)); see
also Weixel v. Bd. of Educ., 287 F.3d 138, 145 (2d
Cir.2002). “This is especially true when dealing with pro
se complaints alleging civil rights violations.” Weixel, 287
F.3d at 146.
Yet, “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, 127 S.Ct. 1955, 1964–65, 167
L.Ed.2d 929 (2007) (internal quotation marks and citation
omitted). “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, –––U.S. ––––, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868, (2009) (quoting Twombly, 550 U.S. at 570,
127 S.Ct. at 1974). A claim meets that facial plausibility
standard 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. at 1949.
“[W]here the facts alleged in the challenged pleading are
ambiguous as to whether the conduct alleged is sufficient
to warrant a finding of culpability, the determination as
to whether a pleading articulates facts sufficient to state a
claim upon which relief may be granted [must] include[ ]
an assessment as to whether sufficient facts are alleged to
make the plaintiff's allegations of wrongdoing ‘plausible.’
“ Tierney v. Omnicom Group, Inc., No. 06 Civ. 14302(LTS)
(THK), 2007 WL 2012412, at *3 (S.D.N.Y. July 11, 2007);
see also Ruotolo v. City of New York, 514 F.3d 184, 188 (2d
Cir.2008) (“To survive a motion to dismiss, a complaint
must plead enough facts to state a claim to relief that
is plausible on its face.”) (internal quotation marks and
citation omitted).

II. The Fire Extinguisher Incident
Plaintiff claims that Defendant Brown violated his Eighth
Amendment rights when she sprayed the fire extinguisher,

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Santos v. New York City Dept. of Correction, Not Reported in F.Supp.2d (2010)

hitting him in the face and eye with a high-pressure
stream of chemicals, thereby causing him “extreme pain,”
temporary blindness, and severe eye irritation. Defendants
argue that Plaintiff has failed to state the objective element
of an Eighth Amendment claim because his injuries
were insufficiently serious (see Defs.' Mem. at 8), and
because spraying the fire extinguisher did not constitute
a “use of force” (see id.). Defendants further contend
that Plaintiff cannot satisfy the subjective element of
an Eighth Amendment violation because he alleges that
Officer Brown intended to spray the other inmate, and did
not “maliciously or sadistically” intend to harm Plaintiff.
(See id. at 9.)
*4 The Eighth Amendment's prohibition against cruel
and unusual punishment protects prisoners from the
“unnecessary and wanton infliction of pain.” Hudson v.
McMillian, 503 U.S. 1, 5, 112 S.Ct. 995, 998, 117 L.Ed.2d
156 (1992). In the prison context, it not only limits prison
officials' authority to use force, see Whitley, 475 U.S. at
327, 106 S.Ct. at 1088, but also imposes an affirmative
duty on prison officials to protect prisoners from harm
and provide for their basic needs, see Farmer, 511 U.S. at
834–35, 114 S.Ct. at 1976–77; Helling, 509 U.S. at 31–32,
113 S.Ct. at 2480–81; Estelle v. Gamble, 429 U.S. 97, 103–
04, 97 S.Ct. 285, 290–91, 50 L.Ed.2d 251 (1976). Thus,
Eighth Amendment analysis in the prison context has
primarily taken two paths: one as applied to cases alleging
that prison officials used excessive force, and the other as
applied to cases alleging that prison officials have failed to
provide adequate conditions of confinement.
Eighth Amendment claims have both a subjective
component, which focuses on whether the defendant's
state of mind was sufficiently culpable, that is, whether it
was wanton, and an objective component, which considers
whether an injury or condition was serious enough to
warrant Eighth Amendment protection. See Wilson v.
Seiter, 501 U.S. 294, 298–99, 111 S.Ct. 2321, 2324–25,
115 L.Ed.2d 271 (1991); see also Hudson, 503 U.S. at 8,
112 S.Ct. at 1000. The particular objective and subjective
standard to be applied “depends upon the constraints
facing the official.” Wilson, 501 U.S. at 303, 111 S.Ct.
at 2326. Courts recognize that prison officials responding
to a riot or other emergency must balance the need to
maintain prison safety and security against the need to be
restrained in their use of force. Thus, in excessive-force
claims, the inquiry focuses on whether the charged official
used force in a good-faith attempt to maintain order, or

maliciously and sadistically to cause harm. See id. at 302,
111 S.Ct. at 2326. In conditions-of-confinement cases,
no such competing concerns are present. The charged
official need only have been “deliberately indifferent” to
a significant risk of harm to an inmate's health or safety.
See id. at 303, 111 S.Ct. at 2327.
Defendants construe Plaintiff's claim against Defendant
Brown as one alleging excessive force in violation of the
Eighth Amendment. However, the claim does not fit easily
into the excessive-force framework because, according to
the Complaint, (1) Defendant Brown's use of the fire
extinguisher had nothing to do with maintaining prison
security, and (2) the object of her use of force was
another inmate, not Plaintiff. In the Court's view, the
factual scenario alleged by Plaintiff is more comfortably
analyzed as a claim that Officer Brown created an
unconstitutionally dangerous condition of confinement
—that she was deliberately indifferent to a serious risk
that Plaintiff would be harmed when she gratuitously
and indiscriminately sprayed a high-pressure stream of
chemicals from the fire extinguisher. See Hope v. Pelzer,
536 U.S. 730, 738, 122 S.Ct. 2508, 2514, 153 L.Ed.2d 666
(2002) (treating the handcuffing of an inmate to a hitching
post, with the handcuffs above shoulder height and
cutting into the inmate's wrists, after safety concerns had
abated, as a prison condition that constituted deliberate
indifference to the prisoner's health and safety); Farmer,
511 U.S. at 832–33, 114 S. Ct at 1976–77 (prison officials'
duty to provide adequate conditions of confinement
includes duty to take “reasonable measures to guarantee
the safety of inmates”); Helling, 509 U.S. at 35, 113 S.Ct. at
2481 (exposure of inmate to environmental tobacco smoke
could state Eighth Amendment claim for a condition
of confinement that created a significant risk of harm);
LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir.1998)
(knowingly exposing inmate to friable asbestos particles
in the air was sufficient to state Eighth Amendment claim
of deliberate indifference to inmate health and safety); see
also Varella v. Adams, No. 1CV03624OWWLJOP, 2006
WL 279329, at *3 (E.D.Cal. Feb.6, 2006) (where inmates
were alleged to have been knowingly transported in a
vehicle in a dangerous manner, and injuries ensued, the
allegations were sufficient to state an Eighth Amendment
claim of deliberate indifference to inmate safety).
*5 However, Defendants have addressed the claim as
an excessive-force claim, and there are a limited number
of cases that employ excessive-force analysis when the

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Santos v. New York City Dept. of Correction, Not Reported in F.Supp.2d (2010)

plaintiff was not the force's intended object. Therefore, the
Court will determine whether the Complaint states a claim
for relief under the Eighth Amendment, applying both an
excessive-force and a conditions-of-confinement analysis.

A. Dangerous Condition of Confinement
1. Legal Standard
Prison officials have an affirmative duty to provide for
prisoners' basic needs, including their “reasonable safety.”
See Farmer, 511 U.S. at 837, 114 S.Ct. at 1979 (safety
from attacks by other inmates); Helling, 509 U.S. at 32–
33, 113 S.Ct. at 2480–81 (safety from dangers posed
by secondhand smoke); Wilson, 501 U.S. at 303–05,
111 S.Ct. at 2327–28 (safety from dangerous conditions
of confinement, including “overcrowding, excessive
noise, insufficient locker storage space, inadequate
heating and cooling, improper ventilation, unclean
and inadequate restrooms, unsanitary dining facilities
and food preparation, and housing with mentally and
physically ill inmates”). “The rationale for this principle is
simple enough: when the State by the affirmative exercise
of its power so restrains an individual's liberty that it
renders him unable to care for himself, and at the same
time fails to provide for his basic human needs—e.g., ...
reasonable safety-it transgresses the substantive limits on
state action set by the Eighth Amendment.” DeShaney
v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189,
200, 109 S.Ct. 998, 1005, 103 L.Ed.2d 249 (1989). Such
wanton pain and suffering is “simply not part of the
penalty that criminal offenders pay for their offenses
against society.” United States v. Walsh, 194 F.3d 37, 49
(2d Cir.1999) (citing Boddie v. Schneider, 105 F.3d 857, 861
(2d Cir.1997)).
To satisfy the objective element of a conditions-ofconfinement claim, a plaintiff must allege that the
challenged activity or condition posed “a substantial risk
of serious harm.” See Hope, 536 U.S. at 738, 122 S.Ct. at
2514; Farmer, 511 U.S. at 833–34, 114 S.Ct. at 1976–77;
Helling, 509 U.S. at 35, 113 S.Ct. at 2481. Mere discomfort
that does not pose a serious risk to health or safety will
not satisfy this standard. See Trammel v. Keane, 338 F.3d
155, 165 (2d Cir.2003) (deprivation of mattress, toiletries,
and nearly all clothing for approximately two weeks—
while perhaps uncomfortable—did not pose serious risk
to inmate health and safety).

The subjective analysis focuses on whether the charged
official was “deliberately indifferent” to a risk of serious
harm to a prisoner's health or safety. See Hope, 536 U.S. at
737–38, 122 S.Ct. at 2514–15; Trammel, 338 F.3d at 162–
63; Phelps v. Kapnolas, 308 F.3d 180, 185–86 (2d Cir.2002).
Deliberate indifference entails “something less than acts
or omissions for the very purpose of causing harm or
with knowledge that harm will result .” Farmer, 511 U.S.
at 835, 114 S.Ct. at 1978. However, the charged 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.” Phelps, 308
F.3d at 186 (quoting Farmer, 511 U.S. at 837, 114 S.Ct.
at 1979). Essentially, a defendant must, at a minimum,
act with reckless disregard of a serious risk of harm.
“[R]ecklessness entails more than mere negligence; the risk
of harm must be substantial and the official's actions more
than merely negligent.” Salahuddin v. Goord, 467 F.3d 263,
280 (2d Cir.2006). However, “[a] factfinder may conclude
that a prison official knew of a substantial risk from the
very fact that the risk was obvious.” Phelps, 308 F.3d at
186 (quoting Farmer, 511 U.S. at 842, 114 S.Ct. at 1981).

2. Application
*6 The risk of harm to Plaintiff's health and safety
posed by Defendant Brown's alleged conduct was not
so insignificant that, as a matter of law, it could not
satisfy the objective prong of an Eighth Amendment
violation. As set forth in the Amended Complaint, as
a result of Defendant Brown's actions, Plaintiff suffered
“extreme pain,” partial temporary blindness, and severe
eye irritation. (See Am. Compl. ¶¶ 12, 16, 20.) His injuries
required hours of medical care, as well as medication.
(See id. ¶¶ 19–20.) The doctor who treated Plaintiff is
alleged to have informed him that he had been lucky
not to lose the eye completely, due to the corrosive
nature of the chemicals and the high pressure at which
they were sprayed. (See id. ¶ 20.) A dangerous prison
condition that leads to extreme pain, temporary eye
damage, and the potential for loss of sight, is sufficiently
serious to implicate the Eighth Amendment. See, e.g.,
Brock v. Wright, 315 F.3d 158, 163 (2d Cir.2003) (a
painful facial scar that was source of chronic pain was
sufficiently serious to meet the objective element of an
Eighth Amendment violation; “We do not ... require an
inmate to demonstrate that he or she experiences pain
that is at the limit of human ability to bear, nor do we
require a showing that his or her condition will degenerate
into a life-threatening one.”); Hemmings v. Gorczyk, 134

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F.3d 104, 106–09 (2d Cir.1998) (a torn achilles tendon
that caused swelling and pain satisfied objective prong
of Eighth Amendment violation); Williams v. Smith,
No. 02 Civ. 4338(DLC), 2009 WL 2431948, at *8–
10 (S.D.N.Y. Aug.10, 2009) (severe back pain satisfied
objective prong). Indeed, eye impairments that have been
found sufficiently serious to satisfy the objective element
of an Eighth Amendment violation for denial of medical
care include the deprivation of proper eyeglasses, causing
visual impairments such as double vision and the loss
of depth perception, see Koehl v. Dalsheim, 85 F.3d 86,
88 (2d Cir.1996); poor lighting, causing eye strain and
fatigue, see Amaker v. Goord, No. 98 Civ. 3634(JGK),
1999 WL 511990, at *7 (S.D.N.Y. July 20, 1999); a delay
in receiving eyeglasses, causing eye strain and fatigue, see
Myrie v. Calvo, 591 F.Supp.2d 620, 627 (S.D.N.Y.2008);
and an infection causing the loss of vision in the right
eye and damage to the left, see Hines v. Gandham,
No. 9:08 CV 553(GLS)(DLH), 2009 WL 537541, at *7
(N.D.N.Y. Mar. 3, 2009). If these conditions are serious
enough to impose an affirmative duty on prison officials
to provide sufficient medical care to prevent and treat
them, there can be little argument that they are not also
serious enough to implicate the Eighth Amendment when
prison officials recklessly cause them through their own
intentional conduct. Thus, Plaintiff's pain and eye injury
are sufficient to satisfy the objective element of his claim. 2
Plaintiff has also alleged sufficient facts to satisfy the
subjective element of his claim. A reasonable fact-finder
could conclude that it is obvious that spraying highpressure chemicals at eye-level, in the presence of a group
of people, poses a serious risk of harm, and that Defendant
Brown therefore acted with reckless disregard to the safety
of Plaintiff and others when she did so. See Phelps, 308
F.3d at 186 (citing Farmer, 511 U.S. at 837, 114 S.Ct. at
1979).
*7 Therefore, Plaintiff has adequately pled a claim that
Defendant Brown violated his Eighth Amendment rights
when she was deliberately indifferent to the significant
risk that indiscriminately spraying the fire extinguisher
would seriously injure Plaintiff. While the facts may
ultimately demonstrate otherwise, at this early stage in this
proceeding the claim does not merit dismissal.

B. Use of Excessive Force

In excessive-force cases, the Eighth Amendment inquiry
“turns on whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.” Wright v. Goord, 554
F.3d 255, 269 (2d Cir.2009); see also Wilson, 501 U.S.
at 302, 111 S.Ct. at 2326; Blyden, 186 F.3d at 262. The
objective element of an excessive-force claim requires only
a showing that the force used was more than de minimis,
see Wright, 554 F.3d at 269; Walsh, 194 F.3d at 48, because
when force is used maliciously and sadistically to cause
harm, “contemporary standards of decency always are
violated ... whether or not significant injury is evident.”
Hudson, 503 U.S. at 9, 112 S.Ct. at 1000; accord Wright,
554 F.3d at 268–69. “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....
Indeed, not even every malevolent touch by a prison
guard gives rise to a federal cause of action.” Boddie,
105 F.3d at 862 (internal quotation marks and citations
omitted). However, there is no need to demonstrate
that a serious injury resulted. “Otherwise, the Eighth
Amendment would permit any physical punishment, no
matter how diabolic or inhuman, inflicting less than some
arbitrary quantity of injury.” Hudson, 503 U.S. at 9, 112
S.Ct. at 1000; see also Wilkins v. Gaddy, ––– S.Ct. ––––,
No. 08–10914, ––– U.S. ––––, at –––– – ––––, 130 S.Ct.
1175, ––– L.Ed.2d ––––, at –––– – ––––, 2010 WL 596513,
at *2–3 (Feb. 22, 2010) (per curiam). 3
The subjective inquiry in excessive-force cases turns
on “whether force was applied in a good-faith effort
to maintain or restore discipline, or maliciously and
sadistically to cause harm.” Blyden, 186 F.3d at 262
(quoting Hudson, 503 U.S. at 7, 113 S.Ct. at 999). The
use of the terms “maliciously and sadistically” is “not a
limit on liability for uses of force that are otherwise in
bad faith,” but rather “only a characterization of all ‘bad
faith’ uses of force.” Id. at 263 (citing Hudson, 503 U.S.
at 7, 112 S.Ct. at 999). Therefore, the subjective inquiry
considers whether the charged official used force in service
of a legitimate penological objective. “Where no legitimate
law enforcement or penological purpose can be inferred
from the defendant's alleged conduct, the abuse itself may,
in some circumstances, be sufficient evidence of a culpable
state of mind.” Boddie, 105 F.3d at 861.

2. Application

1. Legal Standard
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Santos v. New York City Dept. of Correction, Not Reported in F.Supp.2d (2010)

It is not possible to conclude, at this early stage,
that Defendant Brown's actions involved merely the de
minimis use of force. As alleged, Brown sprayed a highpressure stream of chemicals into Plaintiff's face and
eye. The combination of the chemicals and the pressure
with which they were sprayed was sufficient to cause
extreme pain, partial blindness, and may even have risked
destroying Plaintiff's eye. That use of force is significant
enough to implicate the Constitution. See Beckford
v. Portuondo, 151 F.Supp.2d 204, 216 (N.D.N.Y.2001)
(plaintiff's allegations that he suffered minor injuries when
prison guards sprayed him in the face and chest with a fire
extinguisher were sufficiently serious to satisfy objective
element of Eighth Amendment excessive-force claim); cf.
Wright, 554 F.3d at 269 (“[W]here a prisoner's allegations
and evidentiary proffers could reasonably, if credited,
allow a rational factfinder to find that corrections
officers used force maliciously and sadistically, our Court
has reversed summary dismissals of Eighth Amendment
claims of excessive force even where the plaintiff's evidence
of injury was slight and the proof of excessive force was
weak.”). Therefore, Plaintiff satisfies the objective element
of an Eighth Amendment excessive force claim.
*8 It is the subjective prong that, at least superficially,
poses the greatest obstacle to Plaintiff's excessiveforce claim because, even as alleged in the Complaint,
Defendant Brown did not maliciously or sadistically spray
the extinguisher at Plaintiff in order to cause him harm.
Characterizing the issue in that way, however, does not
conclude the inquiry.
The threshold question in the subjective prong of a
use-of-force claim is whether force was used in service
of a legitimate penological interest. “Infliction of pain
that is totally without penological justification is per se
malicious.” Ruffino v. Gomez, No. 3:05 CV 1209(JCH),
2006 WL 3248570, at *6 (D.Conn. Nov.8, 2006) (citing
Hope, 536 U.S. at 737, 122 S.Ct. at 2514) (internal
quotation marks omitted). No legitimate penological
purpose can be inferred from Plaintiff's description of
Defendant Brown's conduct. When she sprayed the fire
extinguisher, there was no fire to be extinguished, and no
other apparent security threat. Rather, as alleged, after
sexual play, she was angry at an inmate and wanted to
punish him. (See Am. Compl. ¶¶ 9–11.) See Boddie, 105
F.3d at 861 (sexual abuse of inmates serves “no legitimate
law enforcement or penological purpose”); Beckford, 151
F.Supp.2d at 216 (“when a prison guard applies force

against a prisoner that poses no reasonable threat simply
because the guard loses his or her temper and wishes to
wantonly inflict pain on the prisoner, a per se violation of
the Eighth Amendment occurs”).
Thus, Plaintiff has satisfied his burden of pleading that
Defendant Brown acted in bad faith, because she had
no legitimate reason to spray the fire extinguisher at
Plaintiff or any other inmate. See Santiago v. Campisi,
91 F.Supp.2d 665, 673 (S.D.N.Y.2000) (“plaintiff has
satisfied his burden on [the subjective] element by merely
pleading a scenario in which the use of force could not
have been in good faith.”).
Defendants argue that Defendant Brown cannot be liable
for an Eighth Amendment violation because she did
not intend to use force against Plaintiff, and therefore
cannot have acted with a sufficiently culpable state of
mind. However, the Second Circuit has noted that it is
inappropriate to impose a “limit on liability for force
that is otherwise in bad faith.” Blyden, 186 F.3d at 263.
While the Second Circuit has not addressed the specific
circumstance of one inmate being injured by bad-faith
force directed at another, the Ninth Circuit analyzed that
exact scenario in Robins v. Meacham, 60 F.3d 1436, 1441
(9th Cir.1995), and squarely rejected the argument that
Defendants make here.
Robins concerned an incident in which prison officials
fired a round of bird shot at an inmate who refused
an order to “lock up.” Several pellets of bird shot went
under the cell door of the bystander plaintiff, injuring his
foot. He brought an Eighth Amendment suit against the
officers, who argued that they could not be held liable
for his injuries, because they had intended to use force
only against the non-compliant inmate. The Ninth Circuit
disagreed, finding that “[t]he standard of wantonness that
a plaintiff must establish is not that the defendants acted
towards him maliciously and sadistically for the purpose
of causing him harm,” but rather that “the defendants
applied force maliciously and sadistically for the very
purpose of causing harm-that is any harm.” See id.
(emphasis in original).
*9 When a corrections official gratuitously uses force
that is “not applied in a good-faith effort to maintain
or restore discipline,” it is by definition wanton and
unconstitutional. Blyden, 186 F.3d at 263. Defendants
fail to explain why such force would cease to be

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unconstitutional when it injures inmates in addition to
the official's intended target. Of course, had there been
a security justification for Defendant Brown's employing
a fire extinguisher against the other inmate, then the use
of that force would not have been malicious and wanton,
and any consequential injury to Plaintiff could reasonably
be viewed as mere negligence. See Bolden v. O'Leary,
No. 89 C 6230, 1995 WL 340961, at *5 (N.D.Ill. June 2,
1995) (where correctional officer used a chemical agent
on an inmate who was approaching him in a threatening
manner, in the midst of other inmates refusing to obey
direct orders, the plaintiff-inmate's inadvertent exposure
to the chemical agent was not actionable under Section
1983). That, however, is not what has been alleged in the
Complaint.
The Court recognizes that the facts alleged by Plaintiff
do not fit comfortably into the elements of an Eighth
Amendment excessive-force claim, because it does not
appear that Defendant Brown intended to injure Plaintiff.
However, when a correctional official intentionally and
wantonly uses force without justification against one
inmate, and thereby creates a substantial risk of harm
and actual injury to other inmates, it cannot be the
case that she is free of constitutional liability to the
inmates she injures just because they were not her intended
targets. Whether Defendant Brown's conduct is viewed
as the wanton and bad faith use of excessive force, or
as deliberate indifference to inmate health and safety,
the allegations of the Complaint are sufficient to state a
plausible violation of the Eighth Amendment.

III. Denial of Medical Care
Plaintiff has alleged that Defendants Brown, Arias, and
Waiters were deliberately indifferent to his medical needs
when they refused to send him to the prison's clinic
immediately after the fire extinguisher incident. Plaintiff
claims that Defendant Brown refused his requests for
medical care, telling him to “get the fuck away from her”
and that she “did not care if [he] died.” (See Am. Compl.
¶ 14.) When Plaintiff made the same request of Defendant
Arias, he responded that he could not do anything to
help, because he was “just the Meal Relief Officer.” (See
id.) Defendant Waiters also refused Plaintiff's request for
medical care, telling him that she “was not going to get
involved because C.O. Brown was the A–Officer.” (See id.
¶ 16.)

Defendants contend that Plaintiff's injuries were not
serious enough to warrant medical attention, and this
claim should therefore be dismissed.

A. Legal Standard
The objective element of an Eighth Amendment claim
arising out of the denial of medical care focuses on
whether the alleged deprivation of adequate medical care
was “sufficiently serious.” See Salahuddin, 467 F.3d at
279 (quoting Farmer, 511 U.S. at 834, 114 S.Ct. at 1977).
Determining whether the care a prisoner received meets
the objective standard requires an additional two-part
inquiry. See id. First, courts focus on the adequacy of
the care. See id. Under this part of the analysis, “prison
officials who act reasonably in response to an inmatehealth risk cannot be found liable under the Cruel and
Unusual Punishments Clause.” Id. at 279–80 (quoting
Farmer, 511 U.S. at 845, 114 S.Ct. at 1983). Second,
courts focus on the seriousness of a plaintiff's medical
needs. See id. at 280. “Factors relevant to the seriousness
of a medical condition include whether ‘a reasonable
doctor or patient would find [it] important and worthy of
comment,’ whether the condition ‘significantly affects an
individual's daily activities,’ and whether it causes ‘chronic
and substantial pain.’ “ Id. (quoting Chance v. Armstrong,
143 F.3d 698, 702 (2d Cir.1998)); see also Brock, 315
F.3d at 162. The inquiry into the seriousness of a medical
condition depends on the deprivation of care that the
prisoner has alleged. If the prisoner has alleged that the
prison failed to treat his condition at all, then courts
will consider the severity of the medical condition itself.
However, if the alleged violation is a disruption or delay in
treatment, then “it's the particular risk of harm faced by a
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
Eighth Amendment purposes.” Smith v. Carpenter, 316
F.3d 178, 185–86 (2d Cir.2003); see also Salahuddin, 467
F.3d at 280.
*10 The subjective element of an Eighth Amendment
claim for denial of medical care focuses on whether
the defendant acted with “deliberate indifference” to the
plaintiff's medical needs. As in conditions-of-confinement
cases, the charged official must “act or fail to act
while actually aware of a substantial risk that serious
inmate harm will result.” Salahuddin, 467 F.3d at 280
(citing Farmer 511 U.S. at 836–37, 114 S.Ct. at 1978);
see also Wilson, 501 U.S. at 303, 111 S.Ct. at 2327

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Santos v. New York City Dept. of Correction, Not Reported in F.Supp.2d (2010)

(“Whether one characterizes the treatment received by the
prisoner as inhumane conditions of confinement, failure
to attend to his medical needs, or a combination of both,
it is appropriate to apply the ‘deliberate indifference’
standard.”) (citations omitted).

B. Application
Plaintiff has adequately pled the objective element of his
claim. Turning first to the adequacy of care, Plaintiff
has alleged that Defendants did not respond reasonably
to his request for medical care. The Eighth Amendment
“does not require empathy.” Ramos v. Artuz, No. 00 Civ.
149(LTS)(HBP), 2003 WL 342347, at *9 (S.D.N.Y. Feb.
14, 2003); see also Verley v. Goord, No. 02 Civ. 1182(PKC)
(DCF), 2004 WL 526740, at *13 (S.D.N.Y. Jan. 23, 2004)
(Report and Recommendation). Nor does the mere fact
that an official was hostile or verbally abusive to an
inmate seeking care give rise to an Eighth Amendment
claim. See Verley, 2004 WL 526790 at *13; Johnson v.
Bendheim, No. 00 Civ. 720(JSR)(KNF), 2001 WL 799569,
at *6 (S.D.N.Y. July 13, 2001). What is required, however,
is that prison officials provide reasonable care. See
Salahuddin, 467 F.3d at 279–80. Here, Plaintiff contends
that Defendants refused to provide him with any medical
care, and, as alleged, they did not make that decision on
the basis of their reasonable judgment about Plaintiff's
medical needs.
As to the seriousness of Plaintiff's medical condition,
he alleges that he was deprived of care for a period of
several hours, until, at the behest of his family, a captain
eventually arrived and referred him to the prison's medical
clinic. (See Am. Compl. ¶ 18.) Plaintiff does not claim
that the treatment he received from the medical staff
at the clinic was inadequate. (See Am. Compl. ¶ ¶ 18–
20.) Therefore, the deprivation at issue is the delay in
treatment, and it is the seriousness of the risk posed by
that delay that is relevant to Plaintiff's Eighth Amendment
claim. See Smith, 316 F.3d at 186.
At this early stage, drawing all inferences in the
Amended Complaint in Plaintiff's favor, the Court cannot
conclude that the delay in Plaintiff's medical care was
not serious. Considering the three relevant criteria—
(1) whether a reasonable doctor or patient would find
the condition important and worthy of comment, (2)
whether the condition “significantly affects an individual's
daily activities,” and (3) whether it causes “chronic and
substantial pain”—Plaintiff's allegations clearly satisfy (1)

and (3), and plausibly fulfill (2). See Salahuddin, 467 F.3d
at 279–80. The Amended Complaint alleges that Plaintiff
was in “extreme pain,” and the prison's medical staff
clearly thought that his condition was worthy of attention,
as evidenced by the x-ray diagnostics, medication, referral
to an eye specialist, and hours of medical care they
provided once he was eventually brought to the clinic.
Plaintiff also alleges the sort of condition that might
plausibly “significantly affect” his daily activities: the
temporary loss of sight in his left eye.
*11 Defendants argue that Plaintiff was not actually
in severe pain, and that his eye was merely “red and
irritated,” but those sorts of factual disputes are not
appropriately considered on a motion to dismiss, 4 where
the Court must “take as true all of the allegations
contained in plaintiff['s] complaint and draw all inferences
in favor of the plaintiff [ ].” Weixel, 287 F.3d at 145.
Therefore, Plaintiff has adequately pleaded the objective
element of his Eighth Amendment claim.
Plaintiff also has adequately pled the subjective element of
his claim. He has alleged that the Individual Defendants
were aware that he had been sprayed in the face and
eye with chemicals from the fire extinguisher, and that
he was in pain. (See Am. Compl. ¶¶ 12–16.) Moreover,
he made a direct request to each of them for medical
attention. (See id.) Taken together, those allegations are
sufficient to state a plausible claim that the Individual
Defendants were deliberately indifferent to a substantial
risk that Plaintiff would suffer serious harm. Therefore,
Plaintiff has adequately pled a denial of medical care that
violates the Eighth Amendment.

IV. Claims Against DOC
It is well established that New York City agencies, such
as the Department of Correction, are not suable entities.
See N.Y. City Charter Ch. 17 § 396 (“[a]ll actions and
proceedings for the recovery of penalties for the violation
of any law shall be brought in the name of the City
of New York and not in that of agency, except where
otherwise provided by law”); see also Marcello v. Dep't
of Corr., No. 07 Civ. 9665(NRB), 2008 WL 2951917,
at *4 (S.D.N.Y. July 30, 2008) (under the New York
City Charter, agencies of the City are immune from
suit); Green v. City of N.Y. Dep't of Corr., No. 06 Civ.
4978(LTS)(KNF), 2008 WL 2485402, at *4 (S.D.N .Y.
June 19, 2008) (dismissing the New York City Department

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Santos v. New York City Dept. of Correction, Not Reported in F.Supp.2d (2010)

of Correction as a defendant because it is a non-suable
entity); Echevarria v. Dep't of Corr. Servs. of N.Y. City,
48 F.Supp.2d 388, 391 (S.D.N.Y.1999) (holding that the
New York City Department of Correction is not a suable
entity). 5 Therefore, I recommend that the claims against
DOC be dismissed.

CONCLUSION
For the foregoing reasons, the Court recommends that
Defendants' motion to dismiss be denied with respect to
the claims against the Individual Defendants, and granted
as to the claims against DOC.

have fourteen (14) days from service of this Report to
file written objections. See also Fed.R.Civ.P. 6(a) and
(d). Such objections shall be filed with the Clerk of the
Court, with extra copies delivered to the chambers of
the Honorable George B. Daniels, United States District
Judge, and to the chambers of the undersigned, Room
1660. Any requests for an extension of time for filing
objections must be directed to Judge Daniels. 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, 475, 88 L.Ed.2d 435 (1985); Frank v.
Johnson, 968 F.2d 298, 300 (2d Cir.1992); Small v. Sec'y of
Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989).

All Citations
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72 of
the Federal Rules of Civil Procedure, the parties shall

Not Reported in F.Supp.2d, 2010 WL 1142066

Footnotes

1

2

3

4

5

Because Plaintiff was a sentenced inmate in post-conviction detention during the relevant period, his claims are properly
analyzed under the Eighth Amendment. See Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1976, 128 L.Ed.2d
811 (1994); Helling v. McKinney, 509 U.S. 25, 31, 113 S.Ct. 2475, 2480, 125 L.Ed.2d 22 (1993); Whitley v. Albers, 475
U.S. 312, 327, 106 S.Ct. 1078, 1088, 89 L.Ed.2d 251 (1986).
Defendants argue that Plaintiff's medical records indicate that he sustained only eye irritation, redness, and conjunctivitis
as a result of the incident, and, therefore, he cannot satisfy the objective prong of an Eighth Amendment claim. (See
Defs.' Mem. at 8.) The Court need not determine whether such consequences would be serious enough to give rise to an
Eighth Amendment violation because the evidence in Plaintiff's medical records is not relevant to a Rule 12(b)(6) motion
to dismiss. Here, the Court must accept the allegations of the Complaint as true, and matters outside of the pleadings
cannot be considered. This will not be the case if a motion for summary judgment is brought after the parties have an
opportunity for pretrial discovery.
Nevertheless, the absence of serious injury is relevant to the inquiry into whether the force used was de minimis, even
though it does not end it. See Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir.2003) (citing Hudson, 503 U.S. at 7, 112
S.Ct. at 999); see also Wilkins, –––U.S. ––––, at –––– – ––––, 130 S.Ct. 1175, ––– L.Ed.2d ––––, at –––– – ––––, 2010
WL 596513, at *2–3.
Defendants have cited several cases in support of their argument that Plaintiff's medical needs were not serious, but all
were decided at the summary judgment stage, on the basis of pretrial discovery, which is not appropriate at the motion
to dismiss stage. See Edmonds v. Greiner, No. 99 Civ. 1681(KNF), 2002 WL 368446, at *12 (S.D.N.Y. Mar.7, 2002)
(granting summary judgment to defendants on plaintiff's claim that he was denied medical care overnight after prison
guard threw substance in his eyes, and finding that prison guard acted reasonably, relying on evidence that guard had
contacted medical staff and informed them of the problem with plaintiff's eyes and been told to have plaintiff flush his
own eyes with water and come for an examination the following morning); Pressley v. Green, No. 02 Civ. 5261(NRB),
2004 WL 2978279, at *4 (S.D.N.Y. Dec.21, 2004) (granting summary judgment, relying on medical records and doctor's
affidavit to determine that a delay of several hours in treating plaintiff's first and second degree burns was not serious,
and that there was insufficient evidence that plaintiff had been in severe pain); Smart v. City of New York, No. 08 Civ.
2203(HB), 2009 WL 862281, at *7 (S.D.N.Y. Apr.1, 2009) (granting summary judgment, relying on deposition testimony
to find that plaintiff, who had been sprayed in the eyes with pepper spray, did not have a serious medical need, because
plaintiff's eyes were flushed by a nurse after he had seen a doctor, and doctor would have flushed the eyes himself if
condition had been urgent).
Plaintiff claims that the fire extinguisher incident was the result of “an unwritten policy in which female correction officers
are allowed to play sexual games with inmates.” (See Am. Compl. ¶ 22.) However, he alleges only a single incident

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Santos v. New York City Dept. of Correction, Not Reported in F.Supp.2d (2010)

involving a single officer, and does not plausibly allege that the “policy” he references was the proximate cause of his
injury. While municipal governments can be liable under § 1983 for constitutional violations that are the result of a
governmental custom or policy, whether written or unwritten, see Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S.
658, 690–91, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978), Plaintiff's claim is implausible on its face. It would therefore
be inappropriate to allow Plaintiff to amend his Complaint to add the City of New York as a Defendant in place of DOC.

End of Document

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10

West v. City of New York, Not Reported in F.Supp.3d (2014)

2014 WL 4290813
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Adam WEST, Plaintiff,
v.
CITY OF NEW YORK, C.O. Randal, Defendants.
No. 13 Civ. 5155(PAE).
|
Signed Aug. 28, 2014.

OPINION & ORDER
PAUL A. ENGELMAYER, District Judge.
*1 Adam West, proceeding pro se and in forma pauperis,
sues the City of New York (the “City”) and Corrections
Officer Ginea Randal, alleging, among other things, that
she used excessive force against him. The City, although
not Randal, now moves to dismiss. For the following
reasons, the City's motion is granted, and the Complaint
is dismissed as to the City.

I. Background
A. Factual Background 1
West is an inmate on Riker's Island. Compl. at 1. On
June 27, 2013, Randal refused to allow West to eat or
take a shower. Id. at 2–3. As a result, another corrections
officer put West in the shower around 2 p.m. Id. at
3. When Randal learned that West was in the shower,
Randal entered the bathroom, spit in West's face, and
sprayed him with mace—also known as OC spray or
pepper spray—for approximately 15 seconds. Id. Randal
then left West in the shower for nearly two hours, id.,
which aggravated the burning from the mace, id. at 5. West
also had difficulty breathing while attempting to wash off
the mace, a problem worsened by his preexisting heart
murmur. Id. For days afterward, West suffered itching,
burning, and skin discoloration on his chest. Id. at 3, 5.
The prison medical clinic initially instructed West to wash
off the mace while in his cell, id. at 3, and for two days did
not give him medication for his injuries, id. at 9 (Personal
Injury Claim Form).

On June 28, 2013, the day after the shower incident,
corrections officers gave West a “booth visit” even though
he had not been caught with any weapons or contraband.
Id. at 3. From then on, the officers engaged in harassment
that included refusing to grant West recreation time,
searching West twice a day without cause, making West's
visitors wait to see him, and withholding West's mail. Id.
at 3, 5.

B. Procedural Background
On July 17, 2013, West filed a signed and notarized
Personal Injury Claim Form with the City. Compl. at 8–
12. The City does not dispute receiving this form.
On July 24, 2013, West filed the Complaint. Dkt. 3. The
Complaint does not identify particular causes of action. It
consists instead of a narrative of the actions that Randal
and other, unidentified corrections officers took against
West, and of the injuries that West claims to have suffered.
Liberally construed, 2 however, the Complaint can be
read to allege five distinct constitutional violations that
are potentially actionable under 42 U.S.C § 1983: that
(1) Randal used excessive force against West, in violation
of the Eighth and Fourteenth Amendments; (2) Randal
and other corrections officers failed to furnish West with
adequate medical care for his injuries, rising to the level of
cruel and unusual punishment in violation of the Eighth
and Fourteenth Amendments; (3) corrections officers
denied West recreation time, in violation of the Eighth and
Fourteenth Amendments; (4) the officers searched West
without probable cause, in violation of the Fourth and
Fourteenth Amendments; and (5) the officers withheld
West's mail, depriving him of personal property without
due process of law, in violation of the First and Fourteenth
Amendments. West seeks $100,000 in damages. Compl. at
5.
*2 The Complaint originally named the New York
City Department of Correction (“DOC”) and Corrections
Officer Randal as defendants. Dkt. 3. On August 2, 2013,
the Court dismissed West's claims against the DOC and
added the City as a defendant, on the grounds that the
agency cannot be sued in its own name. Dkt. 6.
On November 1, 2013, the City filed an Answer to the
Complaint, Dkt. 12, and on December 23, 2013, Randal
did the same, Dkt. 15. On January 14 and May 13, 2014,
the Court appointed limited discovery counsel for both

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1

West v. City of New York, Not Reported in F.Supp.3d (2014)

pro se plaintiff West and pro se defendant Randal. Dkt.
18, 27.

rules of procedural and substantive law.” Traguth v. Zuck,
710 F.2d 90, 95 (2d Cir.1983) (citation omitted).

On May 30, 2014, the City moved to dismiss, Dkt. 29,
and filed an accompanying memorandum of law, Dkt.
31 (“Def.Br.”), and declaration, Dkt. 30. The City argues
there that the Complaint does not allege an official policy
or custom, as required to hold a municipality liable for
constitutional violations. Def. Br. 3–4. On July 9, 2014,
West filed an affirmation opposing the motion to dismiss.
Dkt. 35 (“Pl.Opp.Br.”). West stated there, for the first
time, that the DOC had failed to properly train Randal
and that Randal had been involved in several other
incidents before the shower incident. Pl. Br. at 1. On
August 6, 2014, the City notified the Court that it would

B. Adequacy of the Pleading of West's Claims
*3 West's claims are brought under § 1983. “Section
1983 itself creates no substantive rights; it provides only
a procedure for redress for the deprivation of rights
established elsewhere.” Thomas v. Roach, 165 F.3d 137,
142 (2d Cir.1999) (citing City of Okla. City v. Tuttle,
471 U.S. 808, 816 (1985)). Accordingly, a defendant
cannot be held liable under § 1983 absent an “underlying
constitutional violation.” Segal v. City of New York, 459
F.3d 207, 219 (2d Cir.2006).

not file a reply memorandum. Dkt. 36. 3

II. Discussion
A. Applicable Legal Standards
To survive a motion to dismiss under Rule 12(b)(6), a
complaint must plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim 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, 678 (2009). A
complaint is properly dismissed, where, as a matter of law,
“the allegations in a complaint, however true, could not
raise a claim of entitlement to relief.” Twombly, 550 U.S.
at 558. Although a district court must accept as true all
well-pleaded factual allegations in the complaint and draw
all reasonable inferences in the plaintiff's favor, Steginsky
v. Xcelera Inc., 741 F.3d 365, 368 (2d Cir.2014), that tenet
“is inapplicable to legal conclusions,” Iqbal, 556 U.S. at
678.
Pro se complaints ‘ “must be construed liberally and
interpreted to raise the strongest arguments that they
suggest.’ “ Sykes, 723 F.3d at 403 (quoting Triestman,
470 F.3d at 474). Courts may not, however, read into
pro se submissions claims inconsistent with the pro se
litigant's allegations, see Phillips v. Girdich, 408 F.3d 124,
127–28 (2d Cir.2005), or arguments that the submissions
themselves do not “suggest,” Walker v. Schult, 717 F.3d
119, 124 (2d Cir.2013) (citation omitted). Pro se status
“does not exempt a party from compliance with relevant

The Court accordingly must determine whether, as to
each of the claims it has construed West to make, the
Complaint states a cognizable claim. See Amato v. City of
Saratoga Springs, N.Y., 170 F.3d 311, 320 (2d Cir.1999)
(citing City of Los Angeles v. Heller, 475 U.S. 796, 799
(1986)) (“[I]if a plaintiff fails to show that a constitutional
violation occurred in the suit against the individual
official, the corresponding cause of action against the
municipality will be mooted since a claim of [municipal
liability] is only actionable where some constitutional
violation actually occurred”). In addition, because West
brings suit against the City, the Court must determine
whether the allegations in the Complaint satisfactorily
allege municipal liability, to wit, that the plaintiff's injuries
derived from an officially adopted policy or custom. See
Monell v. Dep't of Soc. Servs. of the City of N.Y., 436 U.S.
658, 694 (1978); see also Bd. of Cnty. Comm'rs of Bryan
Cnty. v. Brown, 520 U.S. 397, 404 (1997) (plaintiff “must
demonstrate a direct causal link between the municipal
action and the deprivation of federal rights”). The Court
here addresses the adequacy of the pleading of West's
claims, and addresses in the following section whether
West's Complaint comports with Monell.

1. Excessive Force
The Court construes West first to allege that Randal
used excessive force against him. The “ ‘unnecessary
and wanton infliction of pain’ on a prisoner constitutes
cruel and unusual punishment in violation of the Eighth
Amendment” as incorporated against the states by the
Fourteenth Amendment. Bod die v. Schnieder, 105 F.3d
857, 861 (2d Cir.1997) (quoting Whitley v. Albers, 475 U.S.
312, 319 (1986)). There are two elements of such an Eighth
Amendment violation. First, the punishment inflicted

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West v. City of New York, Not Reported in F.Supp.3d (2014)

must have been ‘ “objectively, sufficiently serious.’ “
Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834
(1994)). Second, the corrections officer must have had
a ‘ “sufficiently culpable state of mind.’ “ Id. (quoting
Farmer v. Brennan, 511 U.S. at 834). A corrections officer
violates the Eighth Amendment when force is applied “
‘maliciously and sadistically to cause harm’ “ rather than “
‘in a good-faith effort to maintain or restore discipline.’ “
Hogan v. Fischer, 738 F.3d 509, 516 (2d Cir.2013) (quoting
Hudson v. McMillian, 503 U.S. 1, 6–7 (1992)). If “ ‘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. (quoting Boddie, 105 F.3d at 861).
*4 Here, West alleges that Randal sprayed him
with mace for approximately 15 seconds because
another corrections officer had allowed him to take a
shower. As alleged, the prolonged spraying resulted in
difficulty breathing, severe itching and burning, and skin
discoloration. These factual allegations adequately plead
both elements of an Eighth Amendment claim. First,
the punishment inflicted is objectively serious. Although
the “immediate discomfort” caused by mace does not
typically constitute excessive force, courts in this Circuit
have found unnecessary and wanton infliction of pain
when a plaintiff alleges “injuries from being sprayed,” as
West does here. Brown v. Banks, No. 06 Civ. 14304(LTS)
(HBP), 2008 WL 3833227, at *2 (S.D.N.Y. Aug. 14,
2008) (citation omitted); see also, e.g., Lewis v. Clarkstown
Police Dep't, No. 11 Civ. 2487(ER), 2014 WL 1364934,
at *7 (S.D.N.Y. Mar. 31, 2014); Cunninham v. New York
City, No. 04 Civ. 10232(LBS), 2007 WL 2743580, at
*6–7 (S.D.N.Y. Sept. 18, 2007). Second, the assault, as
alleged, lacked any legitimate purpose. Even if West had
disobeyed Randal's orders, the use of the artillery of mace,
on the facts pled, was unnecessary to restore discipline.
In light of this lack of evident justification, West has
adequately pled that Randal, in spraying him with mace
while he was showering, acted with a sufficiently culpable
state of mind. See, e.g., Hogan, 738 F.3d at 516 (finding
that prison officials had a sufficiently culpable state of
mind where they approached plaintiff's cell “for the sole
purpose of assaulting him with feces, vinegar, and oil”).
The Complaint therefore adequately alleges an Eighth
Amendment violation based on Randal's use of excessive
force.

2. Inadequate Medical Care

The Court construes West to allege deliberate indifference
to his serious medical needs, an independent violation
of the Eighth and Fourteenth Amendments. To establish
such a claim, West must satisfy two requirements: “The
first requirement is objective: the alleged deprivation of
adequate medical care must be ‘sufficiently serious.’ “
Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir.2006)
(quoting Wilson v. Setter, 501 U.S. 294, 298 (1991)). “The
second requirement ... is subjective: the charged official
must act with a sufficiently culpable state of mind.” Id. at
280 (citing Wilson, 501 U.S. at 300).
In general, “delay in medical treatment by itself cannot
violate the Eighth Amendment.” Arnold v. Westchester
Cnty., No. 09 Civ. 3727(JSR)(GWG), 2012 WL 336129,
at *13 (S.D.N.Y. Feb. 3, 2012) (collecting cases).
However, “[a]n intentional delay in necessary medical
care, amounting in effect to a form of punishment, is
actionable.” Id. (citation omitted); see also, e.g., Estelle v.
Gamble, 429 U.S. 97, 104–05 (1976) (Eighth Amendment
is violated “by prison guards in intentionally denying or
delaying access to medical care”); Archer v. Dutcher, 733
F.2d 14, 16 (2d Cir.1984) (“[I]f defendants did decide
to delay emergency medical aid—even for ‘only’ five
hours—in order to make [plaintiff] suffer, surely a claim
would be stated under Estelle” ); Laster v. Mancini,
No. 07 Civ. 8265(DAB), 2013 WL 5405468, at *21
(S.D.N.Y. Sept. 25, 2013) (“Courts have declined to
dismiss deliberate-indifference claims as a matter of law
where plaintiffs have alleged a delay in medical treatment
causing substantial pain, even when the injuries alleged
were not life-threatening and the delay was relatively
brief.”).
*5 The facts pled here are sufficient to support a finding
of deliberate indifference. West alleges that after Randal
sprayed him with mace, she and other corrections officers
left him in the shower for approximately two hours.
During this time, West was coughing and struggling
to breathe; his skin was burning; and he may have
been suffering complications related to his preexisting
heart murmur. Although the Complaint acknowledges
that West received medical attention that day and again
two days later, the two-hour delay plausibly satisfies
both elements of the Eighth Amendment inquiry: First,
objectively, the delay caused West substantial pain. See
Brock v. Wright, 315 F.3d 158, 163 (2d Cir.2003) (“[W]e
have long held that ‘the Eighth Amendment forbids not
only deprivations of medical care that produce physical

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3

West v. City of New York, Not Reported in F.Supp.3d (2014)

torture and lingering death, but also less serious denials
which cause or perpetuate pain.’ ”) (quoting Todaro v.
Ward, 565 F.2d 48, 52 (2d Cir.1977)). Second, as pled,
the motivation for the delay was punitive. West alleges
that Randal delayed his access to medical care for the
sole purpose of extending his suffering. See Archer, 733
F.2d at 16. Such conduct is fairly argued to be “repugnant
to the conscience of mankind,” Estelle, 429 U.S. at 105
(citations omitted), and is consistent with a sufficiently
culpable state of mind. The Complaint therefore states a
plausible claim of deliberate indifference to West's serious
medical needs, in violation of the Eighth and Fourteenth
Amendments.

3. Recreation Time
The Complaint further alleges that, after the shower
incident, the corrections officers denied West recreation
time. Courts have recognized that “exercise is one of the
basic human needs protected by the Eighth Amendment,”
and so “ ‘some opportunity to exercise must be afforded
to prisoners.’ “ Williams v. Goord, 142 F.Supp.2d 416, 428
(S.D.N.Y.2001) (quoting Williams v. Greifinger, 97 F.3d
699, 704 (2d Cir.1996)). “Denial of a prisoner's recreation
privileges for an extended period of time violates the
Eighth Amendment if the denial results in a deprivation
‘of the minimal civilized measure of life's necessities' and
the defendants act with a sufficiently culpable state of
mind amounting to deliberate indifference to a serious
need.” Beckford v. Portundo, 151 F.Supp.2d 204, 213
(N.D.N.Y.2001) (quoting Rhodes v. Chapman, 452 U.S.
337, 347 (1981)). However, under this standard, courts
have found Eighth Amendment violations based on
denials of recreation only in extreme circumstances-for
instance, when an inmate was denied “all meaningful
opportunity for exercise” for three-and-a-half years. See
Jolly v. Coughlin, 76 F.3d 468, 480 (2d Cir.1996) (citation
omitted); see also Davidson v. Coughlin, 968 F.Supp. 121,
129 (S.D.N.Y.1997) (collecting cases).
The sparse facts alleged here fall short of that standard.
The Complaint does not allege “the duration of the
deprivation,” “the extent of the deprivation,” “the
availability of other out-of-cell activities,” or “the
opportunity for in-cell exercise.” Davidson, 968 F.Supp. at
130; see also Williams, 142 F.Supp.2d at 425. Significantly,
the Eighth Amendment “stands as a barrier against
fundamental and shocking indecency to those whom
the state has chosen to confine for their crimes,” but
it does not require any particular form of recreational

privileges. Anderson v. Coughlin, 757 F.2d 33, 36
(2d Cir.1985). Absent specific factual pleadings that
demonstrate deprivations on such a scale, the allegations
in the Complaint regarding West's recreation do not
establish a constitutional violation.

4. Unjustified Searches
*6 The Court has also construed West to claim that, after
the shower incident, he was subjected to an unjustified
“booth visit” and unjustified twice-daily searches. It
is well-established, however, “that prisoners have no
legitimate expectation of privacy and that the Fourth
Amendment's prohibition on unreasonable searches does
not apply in prison cells.” Hudson v. Palmer, 468 U.S.
517, 530 (1984). As such, inmates do not have the right
to be free from searches of any kind; even searches
conducted “solely for harassment” do not implicate the
Fourth Amendment. Willis v. Artuz, 301 F.3d 65, 68
(2d Cir.2002) (citing Hudson, 486 U.S. at 526); see
also, e.g., Rodriguez v. McClenning, 399 F.Supp.2d 228,
239 (S.D.N.Y.2005) (“[Defendant] correctly asserts that
[plaintiff] had no constitutional right to be free from cell
searches of any kind, including retaliatory cell searches.”);
Salahuddin v. Mead, No. 95 Civ. 8581(MBM), 2002 WL
1968329, at *5 (S.D.N.Y. Aug. 26, 2002) (collecting cases
holding that even “arbitrary” or “retaliatory” searches in
prisons do not implicate constitutional rights). Rather,
unjustified searches of an inmate's person or prison
cell violate the Constitution only when the searches
harm the inmate so severely as to constitute cruel and
unusual punishment within the meaning of the Eighth
Amendment. See Harris v. Fischer, No. 11 Civ. 6260(CM)
(JLC), 2014 WL 3859242, at *18 (S.D.N.Y. Aug. 1, 2014).
Here, the Complaint alleges only that the searches were
“annoy[ing]” and sometimes required waking West up
in the morning or afternoon. Compl. at 5. Such facts,
without more, do not establish a constitutional violation.

5. Withheld Mail
West's final allegation is that corrections officers failed to
deliver his mail—specifically, mail sent by West's family
—for several weeks. The Court construes this claim to
allege both a deprivation of personal property without due
process of law in violation of the Fourteenth Amendment,
and an act of interference with West's mail in violation of
the First and Fourteenth Amendments. The facts alleged
fail to make out a cognizable claim under either theory.

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West v. City of New York, Not Reported in F.Supp.3d (2014)

As to the due process claim, even “an unauthorized
intentional deprivation” of property does not give rise to
a constitutional claim if “adequate state post-deprivation
remedies are available.” Hudson, 468 U.S. at 533. Failure
to pursue an available state remedy precludes relief under
§ 1983. See Davis v. New York, 311 F. App'x 397, 400 (2d
Cir.2009) (summary order). “New York in fact affords
an adequate post-deprivation 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).” Id. (citing
Jackson v. Burke, 256 F.3d 93, 96 (2d Cir.2001) (per
curiam); Love v. Coughlin, 714 F.2d 207, 208–09 (2d
Cir.1983) (per curiam)). Accordingly, even accepting the
facts alleged in the Complaint as true, the deprivation of
West's property interest in his mail is not a cognizable
constitutional injury.

which, as noted, do not constitute First or Fourteenth
Amendment violations actionable under § 1983.

C. Adequacy of West's Pleading of Municipal Liability
For the reasons noted, the Complaint plausibly alleges
two constitutional violations by Randal: (1) the use of
excessive force when she sprayed West with mace without
any justification, and (2) deliberate indifference to West's
serious medical needs when she failed to procure medical
attention for West for at least two hours. The City,
however, moves to dismiss these claims against it, on the
grounds that West has not pled facts under which it can
be held liable for Randal's acts.

*7 Alternatively, the First Amendment protects “a
prisoner's right to the free flow of incoming and outgoing
mail.” Davis v. Goord, 320 F.3d 346, 351 (2d Cir.2003);
see also Davidson v. Scully, 694 F.2d 50, 53 (2d Cir.1982)
( “The state's evanescent security interests defended here
hardly justify infringement of so basic a right as the
right to receive and send mail.”) (citation omitted). In
general, courts “afford[ ] greater protection to legal mail
than to non-legal mail, as well as greater protection to
outgoing mail than to incoming mail.” Davis, 320 F.3d
at 351. To date “the Second Circuit has not articulated
the contours of the test for non-legal mail.” Harris, 2014
WL 3859242, at *24. But even in the context of legal mail,
which merits heightened protection, “an isolated incident
of mail tampering is usually insufficient to establish a
constitutional violation.” Davis, 320 F.3d at 351 (citing
Morgan v. Montanye, 516 F.2d 1367, 1371 (2d Cir.1975);
Washington v. James, 782 F.2d 1134, 1139 (2d Cir.1986)).
Instead, a plaintiff must prove that corrections officers
“regularly and unjustifiably interfered” with his mail.
Id. (citations omitted). Where an inmate alleges only a
few instances of mail tampering, he must further allege
invidious intent or actual harm. Id. (collecting cases).

Under § 1983, municipalities are not vicariously liable
for their employees' actions. Connick v. Thompson, 131
S.Ct. 1350, 1359 (2011). To state a claim against a
municipality, the plaintiff must allege that an officially
adopted policy or custom caused his injury. See Monell,
supra; Bryan Cnty., supra. A single incident is “not
sufficient to impose liability under Monell, unless proof
of the incident includes proof that it was caused by an
existing, unconstitutional municipal policy, which policy
can be attributed to a municipal policymaker.” Okla. City,
471 U.S. at 823–24; see also Trevino v. Gates, 99 F.3d
911, 918 (9th Cir.1996), cert. denied, 520 U.S. 1117 (1997)
(municipal liability cannot be “predicated on isolated or
sporadic incidents; it must be founded upon practices of
sufficient duration, frequency and consistency that the
conduct has become a traditional method of carrying out
policy”). That West is pro se does not relieve him of the
duty to adequately plead the elements of a municipal
liability claim. See Costello v. City of Burlington, 632
F.3d 41, 49 (2d Cir.2011) (affirming dismissal of pro se
plaintiff's Monell claim where “the complaint does not
allege facts sufficient to show that ‘the violation of his
constitutional rights resulted from a municipal custom or
policy’ ”) (quoting DeCarlo v.. Fry, 141 F.3d 56, 61 (2d
Cir.1998)).

The sparse allegations in the Complaint fall short of
this standard. West does not allege how many times the
corrections officers withheld mail from his family, whether
the mail was stolen or merely delayed, whether the officers
withheld his outgoing mail or incoming mail from other
senders, or whether the interference with his mail caused
him concrete harm. Accordingly, the Complaint alleges
no more than isolated incidents of error or malfeasance,

*8 Here, the Complaint falls far short of what Monell
and its progeny require. It does not, in any way,
allege or even suggest “that there was a persistent
and widespread unconstitutional governmental policy
or custom,” that a City “policymaker approved any
constitutional violation,” or that the City's “failure to
train its employees amounted to deliberate indifference to
constitutional rights.” Carter v. Inc. Vill. of Ocean Beach,

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West v. City of New York, Not Reported in F.Supp.3d (2014)

No. 13 Civ. 815, 2014 WL 3561247, at *4 (2d Cir. July 21,
2014).
In his opposition to the City's motion to dismiss, West
contends for the first time that the DOC “failed to
give [Randal] the proper training for her job” and that
Randal had “been in several harassment incidents in the
past.” Pl. Opp. Br. at 1. However, even if construed
as part of the Complaint, these vague and conclusory
statements, taken as true, would not establish municipal
liability. To state a Monell claim premised on failure
to train, a plaintiff must allege “[a] pattern of similar
constitutional violations by untrained employees” that
amounts to “deliberate indifference.” Connick, 131 S.Ct.
at 1360. The pattern must be so widespread as to put
policymakers “on actual or constructive notice that a
particular omission in their training program causes city
employees to violate citizens' constitutional rights.” Id.
West's submissions neither detail a pattern of prior bad
acts by Randal nor identify a deficiency in the City's
training program. Accordingly, West's claims against the
City must be dismissed.

III. Next Steps
For the reasons stated above, the Court dismisses all
claims against the City based on the Complaint's failure
to plead municipal liability, and also sua sponte dismisses
the Complaint's claims against Randal of constitutional
violations with respect to elimination of recreation time,
unjustified searches, and withheld mail. However, the
Complaint's claims against Randal of excessive force
and of deliberate indifference to medical needs, each
construed as brought under the Eighth and Fourteenth
Amendments, survive.
A pro se litigant should be afforded at least one
opportunity to amend his complaint if “a liberal reading of
the complaint gives any indication that a valid claim might
be stated.” Grullon v. City of New Haven, 720 F.3d 133,
139 (2d Cir.2013) (citations omitted). The Court ought not
dismiss a complaint for failure to state a claim unless it
“can rule out any possibility, however unlikely it might
be, that an amended complaint would succeed in stating a

claim.” Gomez v. USAA Federal Savings Bank, 171 F.3d
794, 796 (2d Cir.1999) (per curiam). Particularly where
a pro se litigant brings a civil rights action, he should
be afforded leave to amend his complaint “fairly freely.”
Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 763
(2d Cir.1990) (citations omitted).
The Court will afford West this opportunity. West has
been engaged in discovery with the aid of limited pro
bono counsel for several months but has not yet amended
his Complaint. Given leave to amend, it is conceivable
that West will be able to fortify his factual allegations so
as to (1) plead viable claims regarding loss of recreation
time, unjustified searches, and deprivation of mail, and/
or (2) satisfy the requirements of Monell and state a claim
against the City. The Court will afford West 45 days
from the date of this decision in which to do so. West is
advised not to expect a further opportunity to amend his
Complaint.

CONCLUSION
*9 For the foregoing reasons, the Court dismisses
without prejudice West's claims against the City, and
his claims against Randal with respect with to loss of
recreation time, unjustified searches, and deprivation of
mail. The Court grants West leave to file an amended
complaint. Any such Complaint must be filed by October
13, 2014. Failure to file an amended complaint by that
date, absent leave of the Court, will result in the Court's
converting this dismissal of claims without prejudice into
a dismissal with prejudice.
The Clerk of Court is respectfully directed to terminate
the motion pending at docket number 29 and to serve this
Opinion and Order on West at his address of record.
SO ORDERED.

All Citations
Not Reported in F.Supp.3d, 2014 WL 4290813

Footnotes

1

The Court assumes all facts pled in the Complaint and personal injury claim form, Dkt. 3 (“Compl.”), to be true, drawing
all reasonable inferences in the plaintiff's favor. See Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir.2012).

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2
3

The Court is obligated to construe pro se complaints “ ‘to raise the strongest arguments they suggest.’ “ Sykes v. Bank
of Am., 723 F.3d 399, 403 (2d Cir.2013) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.2006)).
Although Randal sent a letter requesting to file a motion to dismiss on December 23, 2013, Dkt. 14, she never filed such
a motion. The deadline for moving for judgment on the pleadings was May 30, 2014. See Dkt. 24.

End of Document

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