Houston v. Cotter et al
Filing
177
ORDER denying 166 Motion to Set Aside Verdict; denying 167 Motion to Set Aside Verdict. For the reasons set forth herein, the Court denies the defendants' motion for judgment as a matter of law. Ordered by Judge Joseph F. Bianco on 3/30/2016. (Dolecki, Lauren)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 07-CV-3256 (JFB) (AYS)
_____________________
ROBERT HOUSTON,
Plaintiff,
VERSUS
THOMAS COTTER, JOHN WEISS, AND THE COUNTY OF SUFFOLK,
Defendants.
___________________
MEMORANDUM AND ORDER
March 30, 2016
___________________
JOSEPH F. BIANCO, District Judge:
Plaintiff Robert Houston (“plaintiff” or
“Houston”) brings this action against
defendants Thomas Cotter (“Cotter”), John
Weiss (“Weiss”), and the County of Suffolk
(“the County”) (collectively “defendants”)
pursuant to 42 U.S.C. § 1983. Plaintiff
commenced this action on July 26, 2007, by
filing a pro se complaint against defendants
Cotter and Weiss, alleging that corrections
officers used excessive force against him on
January 11, 2007. Counsel was subsequently
appointed to represent plaintiff, and an
amended complaint was filed on December
16, 2011, in which plaintiff added a claim
against the County, alleging that it was liable
for implementing a policy whereby
corrections officers confined him to suicide
watch for two weeks as punishment in
violation of his due process rights.
This case was tried before a jury from
February 23, 2015 to March 9, 2015. The
claims submitted to the jury were as follows:
a claim of excessive force against Officers
Cotter and Weiss, and a claim that Suffolk
County violated plaintiff’s due process rights
pursuant to Monell v. Department of Social
Services of the City of New York, 436 U.S.
658 (1978).
On March 9, 2015, the jury reached a
verdict, finding in favor of the plaintiff as to
(1) his excessive force claim against Officer
Cotter, awarding $1,000 in compensatory
damages and $4,000 in punitive damages,
and (2) his Monell claim against the County,
awarding $25,000 in compensatory damages.
(See Jury Verdict, ECF No. 165.) The jury
found that Officer Weiss was not liable on the
excessive force claim. (Id.)
Presently before the Court is the
defendants’ motion for judgment as a matter
of law under Rule 50(b) of the Federal Rules
of Civil Procedure. Defendants assert that
they are entitled to judgment as a matter of
law on the Monell claim because the verdict
was against the weight of the evidence.1 For
reasons set forth below, the motion for
judgment as a matter of law is denied.
Unltd., LLC v. Loeffler, 745 F. Supp. 2d 115,
120 (E.D.N.Y. 2010). That is, a court
considering a Rule 50 motion “may not itself
weigh the credibility of witnesses or consider
the weight of the evidence.” Meloff v. N.Y.
Life Ins. Co., 240 F.3d 138, 145 (2d Cir.
2001) (quoting Galdieri-Ambrosini, 136 F.3d
at 289); see also Playtex Prods., Inc. v.
Procter & Gamble Co., 02 Civ. 8046 (WHP),
2004 WL 1658377, at *2 (S.D.N.Y. July 26,
2004) (“A Rule 50(b) motion cannot be
granted ‘if, drawing all reasonable inferences
in favor of the nonmoving party and making
all credibility assessments in his favor, there
is sufficient evidence to permit a rational
juror to find in his favor.’” (quoting Sir
Speedy, Inc. v. L&P Graphics, Inc., 957 F.2d
1033, 1039 (2d Cir. 1992)).
The Court further concludes that the
County’s argument that the Monell claim
against it was outside the statute of
limitations, which was raised in the
defendants’ summary judgment motion, fails
because: (1) a Section 1983 claim against a
municipality does not accrue until the
plaintiff knew about, or at least had reason to
know about, the policy or custom upon which
he bases the claim (and the jury found that
plaintiff did not know and should not have
known, prior to January 24, 2010, that the
County had a policy, practice or custom of
using suicide watch as punishment for
inmates); and (2) in the alternative, the
Monell claim relates back to the date of
plaintiff’s initial complaint against the
individual
defendants
under
Rule
15(c)(1)(C).
I.
MOTION FOR JUDGMENT
MATTER OF LAW
Thus, judgment as a matter of law is
appropriately granted where “(1) there is
such a complete absence of evidence
supporting the verdict that the jury’s findings
could only have been the result of sheer
surmise and conjecture, or (2) there is such an
overwhelming amount of evidence in favor
of the movant that reasonable and fair minded
[persons] could not arrive at a verdict against
[it].” Advance Pharm., Inc. v. United States,
391 F.3d 377, 390 (2d Cir. 2004) (alterations
in original) (quoting Galdieri-Ambrosini, 136
F.3d at 289); see also Kinneary v. City of
N.Y., 601 F.3d 151, 155 (2d Cir. 2010)
(same); This is Me, Inc. v. Taylor, 157 F.3d
139, 142 (2d Cir. 1998) (stating that a court
assessing a Rule 50 motion must consider
whether “the evidence is such that, without
weighing the credibility of witnesses or
otherwise considering the weight of the
evidence, there can be but one conclusion as
to the verdict that reasonable [persons] could
have reached” (alteration in original)
(quoting Cruz v. Local Union No. 3, Int’l
Bhd. of Elec. Workers, 34 F.3d 1148, 1154-
AS A
A. Standard of Review
The standard governing motions for
judgment as a matter of law pursuant to Rule
50 is well-settled. A court may not properly
grant judgment as a matter of law under Rule
50 against a party “unless the evidence,
viewed in the light most favorable to the
nonmoving party, is insufficient to permit a
reasonable juror to find in his favor.” Arlio v.
Lively, 474 F.3d 46, 51 (2d Cir. 2007) (citing
Galdieri-Ambrosini v. Nat’l Realty & Dev.
Corp., 136 F.3d 276, 289 (2d Cir. 1998)).
Generally, a court reviewing such a motion
must defer to all credibility determinations
and reasonable inferences that the jury may
have drawn at trial. See Frank Sloup & Crabs
1
Defendants have not moved with regard to the verdict
against Officer Cotter.
2
55 (2d Cir. 1994))). In other words, this Court
may only grant defendant’s Rule 50(b)
motion “if it cannot find sufficient evidence
supporting the jury’s verdict.” Playtex
Products, 2004 WL 1658377, at *2; see also
Black v. Finantra Capital, Inc., 418 F.3d 203,
209 (2d Cir. 2005) (“A court evaluating [] a
motion [for judgment as a matter of law]
cannot assess the weight of conflicting
evidence, pass on the credibility of the
witnesses, or substitute its judgment for that
of the jury.”) (citation and internal quotation
marks omitted). For this reason, a party
moving to set aside a jury verdict must clear
“a high bar.” Lavin-McEleney v. Marist
College, 239 F.3d 476, 479 (2d Cir. 2001).
a. Conditions of Confinement
Defendants argue that the conditions
under which plaintiff was confined while on
suicide watch in the disciplinary area known
as BMHU cannot, as a matter of law, be
considered unusual or especially harsh. In
particular, defendants argue that other than
the fact that plaintiff was required to wear a
suicide garment, was given a suicide blanket
and had no bed linens, the remaining
conditions were “related to his disciplinary
confinement” in the BMHU unit, (Defs.’
Mem. at 12), as opposed to his “status of
being placed on suicide watch.” (Defs.’
Reply at 5.) Thus, defendants argue that these
other conditions should not be considered
when determining if plaintiff was subjected
to atypical or significant hardship. (Id.) In
opposition, plaintiff argues that all the
conditions he experienced while on suicide
watch in the BMHU should be considered
because his entire placement in the BMHU
was punitive and “part and parcel of the
retaliatory effort against him.” (Pl.’s Opp. at
12.)
B. Discussion
The Court assumes familiarity with the
underlying facts and procedural history of the
case, which are set forth more fully in the
Court’s March 27, 2014 Memorandum and
Order, Houston v. Cotter, 7 F. Supp. 3d 283
(E.D.N.Y. 2014). The Court reserves
recitation of the facts presented at trial for the
discussion below.
As an initial matter, the Court reaffirms
its prior determination that the proper method
of comparison is between “plaintiff’s suicide
watch conditions with those in the
disciplinary tier and in general population.”
Houston, 7 F. Supp. 3d at 299; see also Earl
v. Racine County Jail, 718 F.3d 689, 691 (7th
Cir. 2013) (“When an inmate is placed in
conditions more restrictive than those in the
general prison population, whether through
protective segregation like suicide watch or
discretionary administrative segregation, his
liberty is affected only if the more restrictive
conditions are particularly harsh compared or
ordinary prison life or if he remains subject
to those conditions for a significantly long
time.”).
Defendants challenge the jury’s finding
of Monell liability against the County.
Defendants argue that (1) plaintiff failed to
establish that he was subjected to an
underlying
constitutional
violation,
specifically, (a) that the evidence failed to
demonstrate that the conditions of plaintiff’s
confinement were such that they gave rise to
a protected liberty interest, and (b) that there
was no proof as to why plaintiff was kept on
suicide watch after the recommendation by
mental health that be removed, and (2)
plaintiff failed to establish (a) deliberate
indifference due to a failure to train or
supervise, or (b) a direct link between the
claimed violation and an official County
policy.
Further, the Court concludes that the jury
could have reasonably believed that plaintiff
1. Underlying Constitutional Violation
3
summary judgment,4 a prisoner’s liberty
interest is implicated by a disciplinary or
administrative confinement only if the
confinement “imposes [an] atypical and
significant hardship on the inmate in relation
to the ordinary incidents of prison life.”
Palmer v. Richards, 364 F.3d 60, 64 (2d Cir.
2004) (quoting Sandin v. Connor, 515 U.S.
472, 484 (1995)). Factors to aid in
determining whether the inmate endured an
“atypical and significant hardship” include
(1) the effect of the confinement on the length
of incarceration, (2) the extent to which the
conditions of the disciplinary segregation
differ from other routine prison conditions,
and (3) the duration of the disciplinary
segregation compared to discretionary
confinement. Wright v. Coughlin, 132 F.3d
133, 136 (2d Cir. 1998); see also Palmer, 364
F.3d at 64. Although restrictive confinements
of fewer than 101 days generally do not
implicate a liberty interest warranting
protection, they “could constitute atypical
and significant hardships if the conditions
were more severe than the normal SHU
conditions.” Palmer, 364 F.3d 60; see also
Davis v. Barrett, 576 F.3d 129, 133 (2d Cir.
2009) (same). In considering whether an
inmate subject to disciplinary housing for a
short period of time endured an “atypical and
significant hardship,” the court must consider
the conditions of the plaintiff’s confinement
“in comparison to the hardships endured by
prisons in general population, as well as
prisoners in administrative and protective
confinement, assuming such confinements
are imposed in the ordinary course of prison
administration.” Davis, 576 F.3d at 134
(quoting Welch v. Barrett, 196 F.3d 389, 39293 (2d Cir. 1999)); see also Wheeler v.
Butler, 209 F. App’x 14, 16 (2d Cir. 2006)
(“If [the] conditions, taken in totality, were
offered sufficient evidence to demonstrate
that his entire placement in the BMHU was
retaliatory. In particular, plaintiff testified
that, on January 10, 2007, Officer Cotter told
him to “shut up” and, when plaintiff
continued talking, Officer Cotter told him
“You’re going to keep talking like that? I’ll
tell you what, go to yard tomorrow, see what
happens.” (Tr. 205.)2 Plaintiff testified that he
understood the statement as a “threat.” (Tr.
205-06.) Plaintiff further testified that, when
he was returning to his tier from yard time on
January 11, 2007, he was assaulted by Officer
Cotter and other officers. (Tr. 207-217.)
Officer Cotter subsequently filed disciplinary
charges against plaintiff, claiming that the
altercation occurred because plaintiff
attempted to attack him, (Tr. 607; Pl.’s Ex.
14),3 and plaintiff was thereafter placed on
suicide watch in the BMHU. (Tr. 227-28;
Pl.’s Ex. 21.) Under these circumstances, the
Court concludes that the jury could have
reasonably believed that the entire incident
that led plaintiff to be placed on suicide watch
was part of a larger scheme of retaliation.
Thus, it would be improper to consider only
the additional conditions of confinement that
suicide watch added to the BMHU
conditions. Accordingly, the Court will
consider all of the conditions experienced by
plaintiff while on suicide watch in the BMHU
unit in comparison to the conditions of
inmates in the disciplinary tier and in the
general population. When the evidence of
plaintiff’s conditions while on suicide watch
in the BMHU are compared to those in the
disciplinary tier and general population, the
jury could reasonably find that plaintiff
suffered an atypical and significant hardship.
As previously articulated in the Court’s
opinion denying the cross-motions for
2
4
Tr. refers to the trial transcript.
Pl.’s Ex. refers to an exhibit introduced by plaintiff
during the trial.
The Court restates the applicable law, but a fuller
recitation of the law can be found in the Court’s March
27, 2014 Opinion. See Houston, 7 F. Supp. 3d at 283.
3
4
especially harsh vis-à-vis both the conditions
in the segregated confinement and in the
general prison population, they may violate a
liberty interest despite the comparative
shortness of the confinement.” (citation and
internal quotation marks and alterations
omitted)).
Plaintiff also offered evidence to indicate
that he was not in fact suicidal when he was
placed on suicide watch in January 2007.
Notably, none of the log entries recorded by
officers who observed him constantly while
he was on suicide watch from January 11,
2007 through January 23, 2007, noted that
plaintiff exhibited any signs of suicidal
behavior. (See Pl.’s Ex. 21.) The mental
health professionals who evaluated plaintiff
on January 11, 2007, the date that he was
placed on suicide watch, and January 16,
2007, also reported that he did “not appear
suicidal” on either date. (Pl.’s Exs. 25, 45; see
also Tr. 755, 767-68.) Plaintiff also denied
being suicidal to the mental health
professional during both of his evaluations,
(Pl.’s Exs. 25, 45; see also Tr. 755-57, 76768), and testified at trial that he “knew [he]
wasn’t suicidal” when he was placed on
suicide watch. (Tr. 228.) Plaintiff further
denied making the statement “I wish I would
have died upstairs when I beat that cops ass,
I won’t stop beating cops till they kill me,”
which defendants attributed to him in the CF
11 form that placed plaintiff on suicide
watch. (Tr. 225-26, 759-61; Pl.’s Ex. 23.)5
At trial, it was established that, during his
suicide watch, plaintiff was required to wear
only a suicide smock, whereas the other
prisoners, including those in the BMHU for
purely disciplinary reasons, wore normal
clothing such as pants and shirts. (Tr. 228-30,
295-96, 617-18, 633.) Also, unlike the
inmates in the general population and
disciplinary tier, plaintiff was given a suicide
blanket, made of the same material as the
smock, and a bare mattress, but not allowed
to have other blankets, sheets, or a pillow.
(Tr. 231, 618, 633, 764.) Plaintiff was also
required to sleep in a suicide watch cell with
a plexiglass side so that an officer could
observe him at all times. (Tr. 230-33, 67576.) Testimony further indicated that, while
on suicide watch, plaintiff was unable to
participate freely in yard time, and instead,
could only go in a smaller, individual cage,
and was cuffed and shackled when going to
and from the cage. (Tr. 236-238; 911-913.)
Plaintiff further testified that “everybody
would see [him]” when he would walk from
the building to the cage and that they made
derogatory comments toward him regarding
mental illness such as “bug out” because the
suicide smock “brought attention.” (Tr. 23841.) Toni Bair, plaintiff’s expert witness in
professional correctional management,
testified that requiring inmates to wear
suicide smocks, a “form of a dress,” is
“humiliating and degrading” in the macho
world of prisons. (Tr. 1011-13.)
Further, plaintiff’s statistical expert, Mr.
Jorge Baez, testified that plaintiff’s fourteen
days on suicide watch was five times longer
than that of the median three day stay of an
inmate on suicide watch. (Tr. 842.) Mr. Baez
also testified that, by remaining on suicide
watch for eight days after mental health
professionals requested removal, plaintiff
remained on suicide watch 95 percent longer
than other inmates who mental health
professionals requested be removed. (Tr.
844-45.)
In sum, the Court concludes that there
was sufficient evidence to support the jury’s
finding that plaintiff suffered an atypical and
5
At trial, Dr. Troiano testified that this statement
“could be interpreted” as a suicidal statement. (Tr.
759.) However, plaintiff introduced Dr. Troiano’s
prior deposition testimony, in which he stated that
such a statement did not show any self-destructive
intent. (Tr. 760-61.)
5
significant hardship due to the conditions of
his confinement.
he claimed that the altercation occurred
because plaintiff attempted to attack him. (Tr.
607; Pl.’s Ex. 14.) After the altercation,
plaintiff was placed on suicide watch in the
BMHU. (Tr. 227-28; Pl.’s Ex. 21.) Thus,
plaintiff certainly offered sufficient proof that
he was placed on suicide watch as
punishment, and in the absence of any
alternate explanation, a jury could reasonably
infer that he was kept on suicide watch as
punishment.
b. Suicide Watch as Punishment
Defendants further argue that the
evidence fails to establish that “plaintiff was
kept on suicide watch after the
recommendation of mental health that he be
removed because of an intentional or reckless
act by a member of the Suffolk County
Correctional Facility, or that the decision (if
there was one) was to punish the plaintiff.”
(Defs’ Mem. at 14.)6 Defendants contend that
“there are a number of reasons why the
plaintiff may have been left on suicide
watch” and thus, “[t]o reach a conclusion that
the plaintiff was kept on suicide watch for
punishment requires more than an inference
that a rational juror could draw and would be
nothing more than speculation.” (Id.)
Further, as discussed supra, plaintiff
denied being suicidal throughout his time on
suicide watch, classification officers assigned
to monitor him never noted that he exhibited
any signs of suicidal behavior, and mental
health professionals who evaluated him
reported that he did not appear suicidal. (See,
e.g., Pl.’s Exs. 21, 25, 45; Tr. 755, 757, 76668.) Thus, a reasonable jury could certainly
find that plaintiff was not suicidal when he
was kept on suicide watch after mental health
professionals recommended removal and,
thus, that he was being confined to suicide
watch as punishment.
Plaintiff argues that there is substantial
evidence from which a reasonable jury could
find that he was confined to suicide watch as
punishment. In particular, he argues that the
evidence established that “the entire reason
he was put on suicide watch in January 2007
was punishment for being difficult.” (Pl.’s
Opp. at 16.) Plaintiff further argues that
unrebutted expert statistical evidence by Mr.
Baez demonstrated that plaintiff had a
particularly long suicide watch compared to
other inmates and, thus, further supports the
jury’s finding that the motivation for the
suicide watch was punitive. (Id. at 17-18.)
In addition, at trial, plaintiff’s counsel
cross-examined Dr. Thomas Troiano and
asked whether suicide watch was used as
punishment at jail. When Dr. Troiano
asserted that suicide watch was not used as a
form of punishment, plaintiff’s counsel
impeached him with his prior deposition
testimony
in
which
he
answered
affirmatively when asked if suicide watch
was “ever used as a form of punishment.” (Tr.
783-785; Troiano Dep. at 81-82.) This
deposition testimony was also introduced as
substantive evidence. (Tr. 788-89.) Further,
Sergeant Koelbel acknowledged that plaintiff
As discussed supra, plaintiff testified that
he was assaulted after he failed to heed
Officer Cotter’s threat, (Tr. 205-17), and that
following the incident, Officer Cotter filed
disciplinary charges against plaintiff in which
a matter of law at trial, Mr. Mitchell stated, “There is
nothing here - - there is no evidence that indicates why
Mr. Houston was kept on suicide watch.” (Tr. 1106.)
Thus, the Court finds that this argument was not
waived.
6
In his opposition brief, plaintiff argues that
defendants waived their argument that plaintiff was
kept on suicide watch as punishment by failing to
make it in their pre-verdict motion for judgment as a
matter of law. (See Pl.’s Opp. at 16.) However, when
defendants made a pre-verdict motion for judgment as
6
had a “reputation for being a difficult
inmate.” (Koelbel Dep. at 249, Court Ex. B.)
that plaintiff was kept on suicide watch as
punishment.
Plaintiff also offered evidence that
indicated overlapping involvement between
officers involved in the January 11, 2007
incident and those involved in his suicide
watch. In particular, Lieutenant Krieg signed
the CF-11 form, which placed plaintiff on
suicide watch, and also assigned Officer
Weiss to monitor plaintiff’s suicide watch
less than 24 hours after the incident, in which
Officer Weiss was involved. (See Pl.’s Ex.
11, at 11, Pl.’s Ex. 21 at 24, Pl.’s Ex. 23; Tr.
918-21.) Further, Officer Zahn, the officer
who presided over plaintiff’s disciplinary
hearing, testified that he personally witnessed
the January 11, 2007 incident, though he was
not “directly involved.” (Tr. 1139-40.)
Officer Zahn also testified that he brought his
involvement in the incident to Lieutenant
Krieg’s attention, and Krieg was “fine with
it.” (Tr. 1140.)
Further, although defendants argue that
“there are a number of reasons why the
plaintiff may have been left on suicide watch,
including that the classification unit may not
have even been notified that mental health
was recommending his removal,” (Defs.’
Mem. at 14), “[w]hen the evidence is viewed
in the light most favorable to [plaintiff] and
all inferences are drawn in [his] favor, a
reasonable jury was not compelled to find for
defendants.” Cash v. County of Erie, 654
F.3d 324, 339 (2d Cir. 2011); see also Zellner
v. Summerlin, 494 F.3d 344, 370-71 (2d Cir.
2007) (“[A] court may grant a motion for
judgment as a matter of law ‘only if it can
conclude that, with credibility assessments
made against the moving party and all
inferences drawn against the moving party, a
reasonable juror would have been compelled
to accept the view of the moving party.’”)
(quoting Piesco v. Koch, 12 F.3d 332, 342 (2d
Cir. 1993)). Although defendants offered
alternative possibilities for why plaintiff was
remained on suicide watch, their own
witness, Sergeant Koelbel, testified that no
records were kept as to why inmates are kept
on suicide watch after mental health
professionals recommend removal. (Tr. 89899.) Thus, this is not a situation where there
is a “complete absence of evidence
supporting the verdict” or where “there is
such an overwhelming amount of evidence in
favor of the movant that reasonable and fair
minded [persons] could not arrive at a verdict
against it.” Advance Pharm., Inc., 391 F.3d
390 (alterations in original). Instead, a jury
weighing the evidence presented could have
reasonably concluded that plaintiff was
subjected to suicide watch as punishment
and, thus, the jury’s verdict was not against
the weight of the evidence.
Further, as discussed supra, Mr. Baez
testified that plaintiff’s fourteen days on
suicide watch was five times longer than the
median inmate stay of three days on suicide
watch. (Tr. 842.) Mr. Baez also testified that
the eight days that plaintiff remained on
suicide watch after mental health
professionals recommended that he be
removed was longer than that of 95 percent
of inmates who had been ordered removed.
(Tr. 844-45.) Such statistical analysis further
supports the jury’s finding that plaintiff was
kept on suicide watch as punishment. Cf.
Luciano v. Olsten Corp., 110 F.3d 210, 216
(2d Cir. 1997) (finding district court properly
denied motion for judgment as a matter of
law where plaintiff offered “statistical data
which reflected a glass ceiling at the
Company and disparity of pay,” supporting
her claim of discrimination).
Thus, based upon this evidence, the Court
finds that a jury could have reasonably found
7
At trial, the jury was instructed that there
were three ways to find defendant
municipally liable in the action: if
plaintiff was deprived of his constitutional
rights due to: (1) “the result of an [official]
practice or custom of Suffolk County that
was in place even though such practice or
custom had not necessarily received formal
approval through Suffolk County’s official
decision-making channels”; (2) “inadequate
training of Suffolk County employees”; or
(3) “inadequate supervision of Suffolk
County employees.” (Tr. 1368; see also Jury
Instructions and Verdict Sheet – Final
Version, at 31, ECF 158.) The Court
emphasized that “Suffolk County may be
held liable if any one of these theories of
liability is proven by plaintiff.” (Tr. 1368;
Jury Instructions and Verdict Sheet – Final
Version, at 31.) Here, defendants only claim
that the evidence was insufficient for a
reasonable jury to find for plaintiff as to the
failure to train or supervise theories of
liability. (See Defs.’ Mem. at 16-18; Defs.’
Reply at 7-8.) Defendants do not argue that
plaintiff failed to establish liability due to an
official policy and, in fact, conceded, both in
their post-trial briefing and at trial, that a jury
could have inferred the existence of an
official municipal policy from the evidence
presented. (See Defs.’ Mem. at 14-15, 18; Tr.
1106.)7 Instead, they claim that plaintiff
failed to demonstrate a causation between the
alleged policy and claimed violation. (Defs.’
Mem. at 18-19.) However, in an abundance
of caution, the Court will examine all three
theories of municipal liability.
2. Municipal Liability
Defendants further argue that plaintiff
failed to establish that “any Suffolk County
policymakers
exercised
‘deliberate
indifference’ to the rights of plaintiff.”
(Defs.’ Mem. at 17.) In particular, defendants
argue that no evidence indicated that
“persons at the policy-making level within
the jail were even aware of the use of suicide
watch as a punishment or that there was a
history of employees mishandling the
situation.” (Id.) Defendants further argue that
no evidence was presented to establish that
policymakers believed that there was a need
for better training or supervision, or that the
County made a “conscious choice” not to
provide such training or supervision. (Id. at
17-18.)
Plaintiff argues that defendants do not
dispute that the evidence permitted a finding
that Suffolk County had a custom of using
suicide watch of punishment, and further,
that the evidence confirms the reasonableness
of such a finding. (Pl.’s Opp. at 19.) Plaintiff
further argues that the evidence was also
sufficient to find municipal liability due to
inadequate training and/or supervision
because Suffolk County failed to provide
adequate suicide watch training even though
classification officers “see suicide watches
all the time.” (Id. at 21.) Plaintiff additionally
argues that deliberate indifference is
established by the fact that SCCF employees
have a history of keeping inmates on suicide
watch after mental health professionals
recommend their removal. (Id. at 22.)
7
Because the verdict sheet made no distinction
between the three ways of finding that plaintiff proved
a violation of his constitutional rights, and because the
law provides that a unanimous verdict on any one of
the three theories would be sufficient to hold Suffolk
County liable, plaintiff need only prove one theory by
preponderance of the evidence. Cf. Indu Craft, Inc. v.
Bank of Baroda, 47 F.3d 490, 496 (2d Cir. 1995)
(reversing grant of judgment as a matter of law where
“jury’s special verdict sheet made no distinction
between the two methods of proving damages” and the
evidence of one method “standing alone, would have
been sufficient to support the jury’s award” even
though there was insufficient proof presented as to the
other theory).
8
Sheriffs’ Corrections Divisions, which
require that a clinician make medical
decisions. (Tr. 1026-28.) Further, Mr. Baez
testified that based on his statistical evidence,
35 percent of inmates remained on suicide
watch for at least one more day after mental
health requested removal and 16 percent of
inmates remained on suicide watch for three
or more days after mental health requested
removal. (Tr. 844.) Mr. Baez also testified
that inmates on the disciplinary floor (the
BMHU) who were placed on suicide watch
remained on suicide watch about four times
longer than those inmates placed on suicide
watch on the second floor, where male
inmates on suicide watch were otherwise
placed. (Tr. 836-37.)
a. Municipal Practice or Custom
i.
Legal Standard
A municipal entity may be held liable
under Section 1983 where the plaintiff
demonstrates that the constitutional violation
complained of was caused by a municipal
“policy or custom.” Monell, 436 U.S. at 694
(noting that municipal policy must be the
“moving force of the constitutional
violation”); see also Patterson v. County of
Oneida, N.Y., 375 F.3d 206, 226 (2d Cir.
2004). “The policy or custom need not be
memorialized in a specific rule or
regulation.” Kern v. City of Rochester, 93
F.3d 38, 44 (2d Cir. 1996) (citing Sorlucco v.
N.Y.C. Police Dep’t, 971 F.2d 864, 870 (2d
Cir. 1992)). Instead, constitutional violations
by government officials that are “persistent
and widespread” can be “so permanent and
well settled as to constitute a custom or usage
with the force of law, and thereby generate
municipal liability.” Sorlucco, 971 F.2d at
870-71 (citing Monell, 436 U.S. at 691)
(internal quotation marks omitted).
ii.
Based upon the trial evidence, the Court
concludes that the jury could reasonably find
that defendant Suffolk County had a policy or
custom of using suicide watch as punishment.
b. Inadequate
Supervision
i.
Application
Training
and/or
Legal Standard
A municipal entity may also be held
liable under Section 1983 under for a failure
to train or supervise its employees “if the
failure amounts to ‘deliberate indifference’ to
the rights of those with whom the [municipal]
employees interact.” Wray v. City of New
York, 490 F.3d 189, 195 (2d Cir. 2007). A
policy, custom, or practice of the entity may
be inferred where “‘the municipality so failed
to train its employees as to display a
deliberate indifference to the constitutional
rights of those within its jurisdiction.’”
Patterson, 375 F.3d at 226 (quoting Kern, 93
F.3d at 44). Deliberate indifference exists
where the plaintiff establishes that (1) “a
policymaker knows ‘to a moral certainty’ that
[municipal] employees will confront a
particular situation”; (2) “the situation either
presents the employee with ‘a difficult choice
of the sort that training or supervision will
Plaintiff presented evidence that Dr.
Troiano admitted that suicide watch was
sometimes used as a form of punishment at
SCCF. (Tr. 783-785; Troiano Dep. at 81-82.)
Plaintiff further elicited testimony that
classification officers have the “power to
override mental health professional’s
determination that an inmate is not suicidal
and should be taken off of suicide watch” and
that ultimately, “classification officers are the
ones who decide whether to remove inmates
from suicide watch.” (Tr. 896.) Mr. Bair,
plaintiff’s
professional
correctional
management expert, testified that to allow
classification officers to override the
decisions of mental health professionals as to
suicide risk is “beyond understanding” and
contrary to the standards of the New York
State Sheriffs’ Association (“NYSSA”) for
9
make less difficult,’ or ‘there is a history of
employees mishandling the situation’”; and
(3) “the wrong choice by the [municipal]
employee will frequently cause the
deprivation of a citizen’s constitutional
rights.” Wray, 490 F.3d at 195-96 (quoting
Walker v. City of New York, 974 F.2d 293,
297-98 (2d Cir. 1992)); see also Cash v. Cty.
of Erie, 654 F.3d 324, 334 (2d Cir. 2011)
(same); City of Canton, Ohio v. Harris, 489
U.S. 378, 390 (1989) (stating that municipal
training is actionable where, “in light of the
duties assigned to specific officers or
employees the need for more or different
training is so obvious, and the inadequacy so
likely to result in the violation of
constitutional rights, that the policymakers of
the [municipality] can reasonably be said to
have been deliberately indifferent to the
need”). The plaintiff must show the
“policymaker’s inaction was the result of
‘conscious choice’ and not ‘mere
negligence.’” Cash, 654 F.3d at 334 (quoting
Amnesty Am. v. Town of W. Hartford, 361
F.3d 113, 128 (2d Cir. 2004)); Ortiz v. Goord,
276 F. App’x 97, 98 (2d Cir. 2008)
(“Defendants may be held liable under
§ 1983 if they . . . exhibited deliberate
indifference to a known injury, a known risk,
or a specific duty, and their failure to perform
the duty or act to ameliorate the risk or injury
was a proximate cause of plaintiff’s
deprivation of rights under the Constitution.”
(internal citation and quotation marks
omitted)).
ii.
sufficient for a jury to find that Suffolk
County “knew to a moral certainty that its
employees” would confront suicide watches
in the course of their employment.
As to the second part of the inquiry,
plaintiff elicited testimony that classification
officers do not receive mental health training
on a regular basis, but rather, rely instead on
“on the job training.” (See Tr. 936-37; 95859, 1178.) Further, Mr. Baer testified that
such “on the job training” was not sufficient
and that it is “absolutely critical that all
corrections officers who deal with inmates
receive not only the initial training on suicide
watch and recognition and prevention as they
do in their initial academy, but they have
ongoing annual training as well.” (Tr. 101415.) Mr. Baer further testified that SCCF
failed to comply with mandatory NYSSA
standards by failing to provide a minimum of
twenty-one hours of annual in-service
training for its staff, including training
dedicated to suicide-crises prevention. (Tr.
1017-19; see also Pl.’s Ex. 27 at 14.) Thus,
the Court concludes that plaintiff has shown
sufficient evidence for the jury to reasonably
find that employees’ difficult decisions
would be made easier with training. See
Hogan v. Franco, 896 F. Supp. 1313, 1322
(N.D.N.Y. 1995) (finding plaintiff presented
adequate evidence for the jury to find liability
due to failure to train where there was
testimony that officers received only “on the
job” training and “no formal training”).
Further, plaintiff has shown sufficient
evidence to the jury to enable them to
reasonably find that there was a failure to
supervise. Sergeant Koelbel testified that a
classification officer who overrides a mental
health determination that an inmate should be
removed from suicide watch is not required
to get approval from a supervisor, put his
rationale in writing for a supervisor to
review, or otherwise explain his decision to
anyone. (Tr. 900.) Due to plaintiff’s
Application
At trial, plaintiff offered evidence that
classification officers encounter suicide
watches on a regular basis, but do not receive
adequate training to handle such watches.
Sergeant Koelbel testified that classification
officers “see suicide watches all the time,”
that “[t]hey come up quite often,” and that
they were part of the “normal course of
business.” (Tr. 938.) Such testimony was
10
aforementioned
evidence
regarding
classification officers’ lack of mental health
training, a jury could reasonably find that
defendant Suffolk County was deliberately
indifferent with respect to supervising its
employees by allowing largely untrained
classification officers to override the
decisions of mental health professionals.
decision as to whether an inmate should
remain on suicide watch.
c. Causation
i.
Legal Standard
In order for a Monell claim to succeed, a
plaintiff must “prove that the municipality
was, in the language of the statute, the
‘person who . . . subject[ed], or cause[d]
[him] to be subjected,’ to the deprivation of
constitutional
rights.”
Vippolis
v.
Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985)
(alterations in original). In other words, with
respect to causation, for a plaintiff to prove
municipal liability under § 1983, “[a]t the
very least there must be an affirmative link
between the policy and the particular
constitutional violation alleged.” City of
Oklahoma City v. Tuttle, 471 U.S. 808, 823
(1985).
Additionally, as discussed supra, 35
percent of inmates remained on suicide watch
for at least one more day after mental health
requested removal and 16 percent of inmates
remained on suicide watch for three or more
days after mental health requested removal,
(Tr. 844), which could support a rational
finding of employees mishandling the
situation. Such testimony provides an
alternative theory of liability due to a record
of employees’ mishandling the removal of
inmates from suicide watch. Cf. Hogan, 896
F. Supp at 1323 (holding plaintiff presented
adequate evidence of history of officers
“abusing
prisoners
or
mishandling
situations” through emergency room doctor’s
testimony that he saw 1-2 cases per month of
individuals claiming assault by police).
ii.
Application
Here, defendants argue that the causation
element of the Monell claim is lacking
because there was “no evidence of why the
plaintiff was kept on suicide watch on
January 16, 2007, and even if one were to
assume that the reason he was kept on suicide
watch was for punishment, this could have
been due to the individual employee’s failure
to follow the training he received.” (Defs.’
Mem. at 18.) Their causation argument
largely tracks their argument that there was a
lack of evidence regarding suicide watch
being used as punishment. (See Defs.’ Reply
at 9 (“[T]he lack of evidence of why the
plaintiff was kept on suicide watch not only
prevents any reasonable jury from
concluding that the plaintiff was indeed kept
on suicide watch as punishment, it also
creates a void between the alleged policy and
the claimed constitutional violation such that
the necessary element of causation is entirely
missing and unsupported.”).)
As to the final part of the test – “that the
wrong choice by the city employee will
frequently cause the deprivation of a citizen’s
constitutional rights” – a jury could
reasonably find that confining an inmate to
suicide watch without justification can,
depending on the surrounding circumstances,
constitute a due process violation and thus,
cause the deprivation of inmate’s
constitutional rights. See Palmer, 364 F.3d at
64.
In sum, the Court concludes that, given
the trial evidence, the jury could have
certainly found that the defendant Suffolk
County was deliberately indifferent by failing
to adequately train or supervise its officers
but allowing them to make the ultimate
11
As an initial matter, to the extent that
defendants argue that the “lack of evidence of
why plaintiff was kept on suicide watch”
means that there was not sufficient evidence
for the jury to infer that the conduct was
caused by a County policy, it is undisputed
that no records are kept as to why inmates are
kept on suicide watch when classification
officers override the decisions of mental
health professionals. (See, e.g., Tr. 898-99.)
However, as discussed supra, plaintiff
offered a variety of evidence at trial that
supported his argument that he was confined
to suicide watch as punishment based on
defendants’ custom, as well as due to
inadequate training and supervision. Further,
for purposes of defendants’ Rule 50 motion,
the Court must defer to all reasonable
inferences that the jury may have drawn at
trial. See, e.g., Frank Sloup & Crabs Unltd.,
LLC, 745 F. Supp 2d at 120. Thus,
particularly in the absence of any other
explanation as to why plaintiff remained on
suicide watch, the Court finds that the jury
could reasonably conclude that causation was
present as to any of the three theories of
municipal liability.
Further, the Court concludes that the
evidence permitted a finding that inadequate
training and/or supervision caused his
confinement. As discussed supra, plaintiff
offered testimony that classifications officers
do not receive regular mental health training,
(Tr. 936-37; 958-59; 1178), but rather, rely
on “on the job training,” which Mr. Bair
testified is contrary to NYSSA standards. (Tr.
1017-19.) Further, classifications officers
testified that they were permitted to override
mental health professionals’ determinations
as to whether inmates should remain on
suicide watch. (Tr. 896.) Thus, when
considered in conjunction with the fact that
plaintiff remained on suicide watch eight
days after mental health professionals
recommended removal, a jury could
reasonably find that defendant Suffolk
County’s inadequate training and/or
supervision of its classification officers
caused plaintiff to be kept on suicide watch.
II.
STATUTE OF LIMITATIONS
In 2013, Suffolk County moved for
summary judgment, inter alia, on the ground
that the Section 1983 claim against the
County – namely, that there was an
unconstitutional policy to use suicide watch
as a punishment for inmates, including
plaintiff – was outside the applicable threeyear statute of limitations. In particular, the
County argued that plaintiff’s claim accrued
on and between January 11, 2007 and
January 24, 2007, but plaintiff did not file the
amended complaint until December 16, 2011
(after counsel was appointed to represent
him). In its Memorandum and Order, dated
March 27, 2014, the Court held that “a
Section 1983 claim against a municipality
does not accrue until the plaintiff knew about,
or at least had reason to know about, the
policy or custom upon which she bases the
claim.” Houston, 7 F. Supp. 3d at 291-92
(citations and internal quotation marks
omitted).
As to the first theory of liability – based
an official practice or custom – plaintiff
presented testimony that he was placed on
suicide watch following the altercation with
the officers, (Tr. 227-28; Pl.’s Ex. 21), was
not in fact suicidal at any time that he was on
suicide watch, (Tr. 757, 767-68, Pl.’s Exs. 25,
45), and was kept on suicide watch after
mental health professionals recommended
removal. (Tr. 228.) Further, plaintiff offered
testimony that he was considered a difficult
inmate, and corrections officers sometimes
used suicide watch to punish difficult
inmates. (Tr. 785; Court Ex. B at 249.) Under
these circumstances, the Court concludes that
the jury could reasonably conclude that
defendant Suffolk County’s custom of using
suicide watch as punishment caused his
confinement on suicide watch.
12
With respect to the issue of plaintiff’s
knowledge of any such policy or custom,
plaintiff argued that he had no reason to know
of the County’s “suicide watch policy that
permitted officers to override the advice of
mental health professionals” until the
deposition of Dr. Troiano in 2011. (Pl.’s
Summary Judgment Opp., ECF No. 114, at
14-16.) The County, citing plaintiff’s August
8, 2007 Letter to the Court, argued that the
letter clearly demonstrated his belief that
such a policy existed:
January 24, 2010, he did not know, and
should not have known, of any alleged
policy, practice, or custom by Suffolk County
to use suicide watch was punishment for
inmates. (See Jury Verdict, ECF No. 165.)
Thus, based upon the jury’s verdict, the
County’s statute of limitations must fail
based upon the Court’s “delayed accrual”
analysis.
However, having heard the trial evidence,
the Court supplements that analysis with an
additional alternative ruling that also makes
clear that, even under the County’s own
version of facts, the County’s statute of
limitations argument must fail because the
Amended Complaint is timely under Rule
15(c) of the Federal Rules of Civil Procedure
because the Section 1983 claim against the
County relates back to the date of plaintiff’s
initial complaint. Plaintiff made this
alternative argument in its opposition to the
summary judgment motion, and the Court
agrees for the reasons set forth below.
In August of 2007, during the early
stage of this litigation, the plaintiff
submitted a letter to the Court
(attached as Exhibit C) in support of
his claims. In his paragraph numbered
10 of the letter Mr. Houston
specifically refers to the conduct of
jail personnel placing him on suicide
watch, that mental health didn’t place
him on suicide watch, and his belief
that this was an administrative cover
up. Further, in paragraph 14 of this
letter Mr. Houston states that he is
“obviously being punished” in
relation to his placement on suicide
watch. As stated above, this letter was
filed with the Court in August of 2007
and clearly evidences that the plaintiff
knew or should have known enough
to claim the existence of a “policy or
custom” so that he could sue the
municipality.
It is well settled that “[i]f a complaint is
amended to include an additional defendant
after the statute of limitations has run, the
amended complaint is not time-barred if it
‘relates back’ to a timely filed complaint.”
VKK Corp. v. Nat’l Football League, 244
F.3d 114, 128 (2d Cir. 2001). Rule 15(c)
provides in relevant part that, when an
amended pleading adds a new party, “[a]n
amendment to a pleading relates back to the
date of the original pleading . . . if Rule
15(c)(1)(B) is satisfied and if . . . the party to
be brought in by amendment: (i) received
such notice of the action that it will not be
prejudiced in defending on the merits; and (ii)
knew or should have known that the action
would have been brought against it, but for a
mistake concerning the proper party’s
identity.” Fed. R. Civ. P. 15(c)(1)(C). The
standard for Rule 15(c)(1)(B), which is a
prerequisite to the adding a party under Rule
15(c), requires that “the amendment asserts a
(Defs.’ Summary Judgment Mem., ECF No.
111-3, at 5 (quoting Plaintiff’s August 8,
2007 Letter).) This Court denied summary
judgment on this issue, concluding that this
disputed issue of fact regarding plaintiff’s
knowledge of a policy or custom should be
resolved by the jury. See Houston, 7 F. Supp.
3d at 292-94. After the evidence was
presented to the jury at trial, the jury
concluded that plaintiff proved by a
preponderance of the evidence that, prior to
13
claim . . . that arose out of the conduct,
transaction, or occurrence set out – or
attempted to be set out – in the original
pleading.” Fed. R. Civ. P. 15(c)(1)(B). As
discussed below, all of these requirements are
satisfied in this case.
originally sued, so long as there is some
showing that the attorneys knew that the
additional defendants would be added to the
existing suit.” (internal quotation marks and
citation omitted)); accord Berry v. Village of
Millbrook, No. 09-CV-4234 (KMK), 2010
WL 3932289, at *5-6 (S.D.N.Y. Sept. 29,
2010); see also Messina v. Mazzeo, 854 F.
Supp. 116, 146 (E.D.N.Y. 1994) (“It is also
the case that the City of New York received
adequate notice of the institution of the
action; its attorney, the Corporation Counsel
for the City of New York, was representing
defendant Mazzeo when the first complaint
was served.”).
First, although the County argues that the
Monell claim regarding suicide watch is
entirely unrelated to the original claim for
excessive force, the Court disagrees. Based
on plaintiff’s pleading (and from the
evidence at trial), there is no doubt that these
events arose out of the same conduct or
occurrence – namely, a dispute between
plaintiff and Officer Cotter. More
specifically, plaintiff alleged that both the
assault by Officer Cotter on January 11,
2007, and his placement on suicide watch
immediately thereafter, were punishment for
a verbal dispute that plaintiff had with Officer
Cotter the day before. Moreover, there was
certainly evidence at trial from which a
rational jury could credit the alleged link
between the two events. Any suggestion that
the alleged excessive force as punishment
and the alleged use of suicide watch as
punishment were unrelated events is entirely
unsupported by the pleadings and the
evidence at trial. Instead, based upon the
allegations and the evidence, the Court
concludes that these claims clearly arise out
of the same conduct, transaction, and
occurrence. Thus, the Rule 15(c)(1)(B)
prerequisite has been met.
In addition, there is absolutely no
prejudice to the County. In its reply on the
summary judgment motion, the County
suggested that it was prejudiced by the delay
because, due to the passage of time, it was
unable to uncover the reasons why plaintiff
remained on suicide watch. (Defs.’ Summary
Judgment Reply at 8.) However, that
argument is entirely unpersuasive. Even
before the claim against the County was
added, the plaintiff’s allegations about being
placed on suicide watch because of
punishment were already part of the case
against the individual defendants and, thus,
the reasons for such placement would have
been relevant on the claims against the
individual defendants dating back to 2007.
Moreover, it was abundantly clear from the
testimony at trial that the County did not have
a practice of keeping records of such
decisions, nor is there any unavailable
witness who could have provided additional
testimony for the particular reasons as it
relates to the plaintiff in this case. In short,
the County has identified no prejudice from
this amendment.
Second,
with
respect
to
Rule
15(c)(1)(c)(ii), the Court concludes that the
County was on constructive notice of the
allegations in the lawsuit by virtue of the fact
that the Suffolk County Attorney represents
both the individual defendants and Suffolk
County itself. See Maccarulo v. Gould, 643
F. Supp. 2d 587, 594 (S.D.N.Y. 2009)
(“[C]onstructive notice may be imputed to a
new defendant through its attorney when the
attorney also represented the official
Finally, with respect to Rule 15(c)(1)(iii),
if the County is correct that the August 8,
2007 Letter to the Court by plaintiff clearly
evinces his knowledge of the existence of a
14
policy or custom, Suffolk County was
certainly placed on notice that the action
would have been brought against it, but for a
mistake concerning the proper party’s
identity.8 Obviously, contrary to the County’s
argument, the Court concluded that the letter
did not clearly evince plaintiff’s knowledge
or understanding of a policy or custom, and
that this disputed factual issue regarding the
defendant’s knowledge of a policy or custom
needed to be decided by a jury. However,
even though the letter did not reference a
policy or custom (and, as the jury found,
plaintiff was unaware of any such policy or
custom at that juncture), the allegations by
plaintiff in that August 2007 letter (including
an alleged nexus between the altercation and
his placement on suicide watch) certainly
placed the County Attorney on notice that,
but for plaintiff’s lack of legal knowledge, his
claim implicated the County’s suicide policy
and that a Monell claim would undoubtedly
be necessary to prove the existence of any
unconstitutional policy. In particular, the
need for the plaintiff to sue the County should
have been clear to the County Attorney from
the August 2007 letter because plaintiff was
not just challenging his placement on suicide
watch, but his continuation on suicide watch
after being cleared by the medical staff. (See
August 8, 2007 Letter, ECF No. 111-6, at 2
(“[O]n 1/16/07 I saw Dr. Trino & he said
Mental Health never placed me on suicide
watch & he cleared me off of suicide watch.
So why am I still on suicide watch a week
later. It was 72 hours, more than 96 hours
ago. So you tell me what’s really going on?
This is obvious (sic) administration trying to
cover up a very immense brutality civil
suit.”).) In other words, given number of
individuals who would be involved in
continuing an inmate on suicide watch
(including the Classification Unit), it was
clear that the pro se plaintiff did not name the
individual defendants involved in those
decisions over time, and would need a Monell
claim to prove (as he alleged) that “the
administration” as a whole was involved in
this decision. Thus, the Court concludes that,
based on the August 8, 2007 letter, the
County should have known it – as “the
administration” – would have been sued
regarding the placement on suicide as
punishment, but for Houston’s legal mistake.
8
defendants or otherwise ratified by defendants
authorized the deprivation of plaintiff’s Constitutional
rights.” (See Proposed Pretrial Order, ECF No. 45-2,
at 4.) In addition, in an Affidavit of Service for the
Answer from September 24, 2007, the Suffolk County
Attorney’s Office inadvertently captioned the case as
“Houston v. County of Suffolk, et al.” (See Affidavit
of Service, September 24, 2007, ECF No. 12.)
The Court’s decision on this issue is
consistent with the Second Circuit’s decision
in Soto v. Brooklyn Correctional Facility, 80
F.3d 34 (2d Cir. 1996). Soto addressed the
inverse situation – that is, the pro se plaintiff
sued the Brooklyn Correctional Facility, but
no individual defendants, in connection with
a Section 1983 action alleging that his
constitutional rights were violated because
corrections officers returned plaintiff to
housing with the same inmates who had
previously stabbed him, and left him
unsupervised, which resulted in a second
attack against him. Id. at 35. The district
court dismissed the Monell claim because of
a failure to allege a policy or custom.
However, the Second Circuit remanded the
case for consideration of whether Soto should
be permitted to amend the complaint to add
the individual officers because it would
“relate back” to the date he filed his original
complaint. First, the Second Circuit noted
that a “mistake” under Rule 15(c) could be a
In fact, there is some evidence that the County
Attorney’s Office was liberally construing the case to
be against the County. For example, in the Proposed
Pretrial Order, filed on September 1, 2010, the County
Attorney’s Office had asserted the following defense
(which would only apply to a Monell claim): “no
policy, statement, ordinance, regulation or decision
officially adopted and/or promulgated by the
15
mistake of law or fact, and plaintiff’s failure
to name the individual defendants in that case
constituted a “mistake concerning the
identity of the proper party” under Rule
15(c). In particular, the Court explained:
reasons: (1) as set forth in the March 27, 2014
Memorandum and Order, a Section 1983
claim against a municipality does not accrue
until the plaintiff knew about, or at least had
reason to know about, the policy or custom
upon which he bases the claim (and the jury
found that plaintiff did not know and should
not have known, prior to January 24, 2010,
that Suffolk County had a policy, practice or
custom of using suicide watch as punishment
for inmates); and (2) in the alternative, the
Monell claim was timely because it relates
back to the date of plaintiff’s initial complaint
against the individual defendants under Rule
15(c)(1)(C).
[U]nder section 1983, Soto was
required to sue the individual
defendants to maintain an action
arising out of the January 1991 attack.
His failure to do so cannot be
considered a matter of choice; but for
his mistake as to the technicalities of
constitutional tort law, he would have
named the officers in the original
complaint, within the three-year
limitation period, or at least named
the superintendent of the facility and
obtained the names of the responsible
officers through discovery. . . . Soto
did not know that he needed to name
individual defendants, and his failure
to do so, under the circumstances of
this case, can be characterized as a
“mistake” for purposes of Rule
15(c)(3).
III. CONCLUSION
For the foregoing reasons, the Court
denies the defendants’ motion for judgment
as a matter of law.
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Id. at 37. On the issue of prejudice, the
Second Circuit remanded to the district court
to determine whether, and when, the
individual officers received notice of the suit
against the Brooklyn Correctional Facility
and whether they would be prejudiced if they
were added to the suit. Id.
Dated: March 30, 2016
Central Islip, NY
***
Plaintiff is represented by Victor L. Hou,
Christopher P. DeNicola, and Diarra M.
Guthrie, Cleary Gottlieb Steen & Hamilton
LLP, One Liberty Plaza, New York, NY
10006. Defendants are represented by Brian
C. Mitchell, Suffolk County Attorney’s
Office, 100 Veterans Memorial Highway,
Hauppauge, NY 11788.
Although the instant case involves the
failure to name the municipal entity (rather
than the individual defendants), the analysis
in Soto is instructive. Like the plaintiff in
Soto, Houston clearly would have sued
Suffolk County if he knew that, to hold “the
administration” liable for this placement and
continuation on suicide watch (as he alleged
in his August 8, 2007 letter), he needed to sue
the County.
In sum, this Court holds that the County’s
statute of limitations argument fails for two
16
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