Sanchez v. Nassau County et al
Filing
218
ORDER. For the reasons set forth in the attached Memorandum and Order, the Court GRANTS in part and DENIES in part Nassau County Defendants' 215 motion for summary judgment and GRANTS in part and DENIES in part Defendant Ryan's 216 mot ion for summary judgment. Defendant Ryan's motion is GRANTED as to Plaintiff's failure to intervene claim against Defendant Ryan, but DENIED as to Plaintiff's failure to protect claim against Defendant Ryan. Nassau County Defendants' motion is GRANTED as to Plaintiff's failure to protect claim against Defendant James; DENIED as to Plaintiff's failure to protect claim against Defendant Hollingshead; DENIED as to Plaintiff's failure to intervene cla ims against Defendant James and Defendant Hollingshead; DENIED as to the supervisory liability claim against Defendant Sposato; and DENIED as to the municipal liability claim against the County. The parties are strongly encouraged to engage in good faith settlement negotiations, and are directed to appear before Magistrate Judge Bloom for a settlement conference. If the parties do not settle, the parties are directed to file a joint status report advising the Court as such and, within sixty (60) days of such a report, the parties are directed to file a joint pretrial order according to the procedures listed in the Court's Chambers Practices. Ordered by Judge Kiyo A. Matsumoto on 3/11/2023. (AA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
Pierre Sanchez,
Plaintiff,
MEMORANDUM AND ORDER
-against-
17-CV-7335(KAM)
Nassau County,
Defendant,
Correction Officer Keith Hollingshead,
Defendant,
Correction Officer Andrew James,
Defendant,
Former Sheriff Michael Sposato,
Defendant,
Correction Officer Patrick Ryan,
Defendant.
--------------------------------------X
KIYO A. MATSUMOTO, United States District Judge:
Plaintiff
Pierre
Sanchez
(“Plaintiff”),
acting
pro
se,
commenced the instant 42 U.S.C. § 1983 action against Nassau County
(“the County”), corrections officers Keith Hollingshead and Andrew
James,
former
Nassau
County
Sheriff
Michael
Sposato
(“Nassau
County Defendants”), and former corrections officer Patrick Ryan
1
(“Defendant Ryan”) on December 18, 2017.1
In the most recent and
operative pleading, the fifth amended complaint filed on August 5,
2020 with the assistance of counsel, Plaintiff alleges that his
face was slashed from mouth to ear and he was beaten by pretrial
detainees while he and other pretrial detainees at Nassau County
Correctional
Center
(“NCCC”)
were
in
the
recreation
yard.
Plaintiff alleges failure to protect and failure to intervene
claims
against
Defendants
Ryan,
Hollingshead,
and
James,
supervisory liability against Defendant Sposato, and municipal
liability against the County.
(ECF No. 151.)
For purposes of
this Memorandum and Order, all defendants except Defendant Ryan
are referred to as “Nassau County Defendants,” unless individually
identified.
Presently before the Court are Defendant Ryan’s motion for
summary judgment and Nassau County Defendants’ motion for summary
judgment.
(ECF Nos. 215, 216.)
For the reasons set forth below,
the Court finds as follows:
1. Defendant Ryan’s motion for summary judgment is GRANTED as to
the failure to intervene claim against Defendant Ryan and is
In his first complaint, Plaintiff included as defendants only the County and
Nassau County Correctional Center. (ECF No. 1, Compl. at 1.) In later amended
complaints, Plaintiff added the other individual defendants, first as John Does
and later by name. (ECF Nos. 15, 21, 126, 151.) Pursuant to a settlement and
a stipulation of dismissal with prejudice, Plaintiff withdrew all claims against
an additional defendant, Armor Medical Group. (ECF No. 116, 118.)
1
2
DENIED as to the failure to protect claim against Defendant
Ryan.
2. Nassau County Defendants’ motion for summary judgment is
GRANTED as to the failure to protect claim against Defendant
James, but is DENIED as to the failure to protect claim
against Defendant Hollingshead.
3. Nassau County Defendants’ motion for summary judgment is
DENIED as to the failure to intervene claims against Defendant
James and Defendant Hollingshead.
4. Nassau County Defendants’ motion for summary judgment is
DENIED
as
to
the
supervisory
liability
claim
against
Defendant Sposato.
5. Nassau County Defendants’ motion for summary judgment is
DENIED as to the municipal liability claim against the County.
Accordingly,
protect
failure
the
claims
to
remaining
against
intervene
claims
Defendants
claims
are
Ryan
against
Plaintiff’s
and
failure
to
Hollingshead;
Defendants
James
his
and
Hollingshead; his supervisory liability claim against Defendant
Sposato; and his municipal liability claim against the County.
BACKGROUND
The following facts are drawn from the parties’ submissions
in connection with this motion, including Defendants’ Rule 56.1
Statements of Facts, Plaintiff’s Counter 56.1 Statements, and
3
Defendants’ Reply 56.1 Statements.2 Upon consideration of a motion
for summary judgment, the Court must construe the facts in the
light most favorable to the non-moving party.
See Capobianco v.
City of New York, 422 F.3d 47, 50 n.1 (2d Cir. 2005).
The
Court
Plaintiff’s
initially
Counter
notes
56.1
that,
Statement,
in
their
neither
responses
Nassau
to
County
Defendants nor Defendant Ryan submitted Reply Rule 56.1 Statements
that comply with Federal Rule of Civil Procedure 56, Local Rule
56.1, or this Court’s Chambers Practices.
At summary judgment, as
the moving party, Defendants must establish in their Rule 56.1
Statements that there are no disputed issues of material fact and
support their statements with admissible evidence; as the nonmoving party, in his Counter Rule 56.1 Statement, Plaintiff must
proffer
factual
statements
supported
by
admissible
evidence
sufficient to raise genuine disputes of material fact.
In their submissions, Nassau County Defendants dispute a
significant number of Plaintiff’s opposing factual statements in
his Counter 56.1 Statement, but Defendants repeatedly fail to offer
(See ECF No. 183-1, Defendant Ryan’s Rule 56.1 Statement (“Def. Ryan 56.1”);
ECF No. 184-1, County Defendants’ Rule 56.1 Statement (“County Defs. 56.1”);
186, Plaintiff’s Response to County Defendants’ Rule 56.1 Statement (“Pl. Resp.
County Defs. 56.1”); ECF No. 187, Plaintiff’s Response to Defendant Ryan’s Rule
56.1 Statement (“Pl. Resp. Def. Ryan 56.1”); ECF No. 188, Millson Declaration
and exhibits attached thereto; ECF No. 189, Millson Second Declaration and
exhibits attached thereto; ECF No. 194, Defendant Ryan Reply Rule 56.1 Statement
(“Def. Ryan Reply 56.1”); ECF No. 196, County Defendants Reply Rule 56.1
Statement (“County Defs. Reply 56.1”); ECF No. 197, Gross Declaration and
exhibits attached thereto; ECF No. 200, Nolan Declaration and exhibits attached
thereto.)
2
4
or cite to admissible evidence to support their opposition, in
violation of Federal Rule of Civil Procedure 56(c) and Local Rule
56.1.
Plaintiff’s additional 56.1 facts, offered as the non-
moving
party
motions,
in
opposition
establish
genuine
to
Defendants’
disputes
of
summary
material
fact
judgment
because
Nassau County Defendants merely state in response that there has
been
“no
occurred.
finding
of
fact”
that
Plaintiff’s
proffered
facts
(See, e.g., ECF No. 196, at ¶¶ 106-16; 336-43; 354-69.)
At summary judgment, there is no need for a prior “finding of
fact.”
Instead, the Court must determine whether a moving party
has offered sufficient evidence that there is no genuine dispute
of material fact, or whether a non-moving party has provided
evidence that establishes genuine disputes of material fact.
It
is sufficient for a party to cite to admissible record evidence,
such as deposition testimony or an affidavit, to establish the
existence or non-existence of a material factual dispute.
See
Fed. R. Civ. P. 56(c); see also United States v. Gentges, 531 F.
Supp. 3d 731, 735 n.1 (S.D.N.Y. 2021) (“Any party’s failure to
provide record support for its challenge to another party’s factual
statement could allow the Court to deem the challenged facts
undisputed.” (citing Holtz v. Rockefeller & Co., 258 F.3d 62, 73
(2d Cir. 2001))).
The Court therefore may find that Nassau County
Defendants have not disputed the facts in Plaintiff’s Counter 56.1
5
Statement for which the Nassau County Defendants failed to proffer
evidence to support their opposition.
In his Reply 56.1 Statement, Defendant Ryan also repeatedly
disputes Plaintiff’s proffered facts without citing to admissible
record evidence, including by stating only that “Plaintiff has
merely regurgitated his deposition testimony as a material fact
not in dispute.” (See, e.g., ECF No. 194, Def. Ryan Reply 56.1 at
¶¶ 187-88; 195-203.)
Federal Rule of Civil Procedure 56(c)(1)(a),
however, explicitly states that deposition testimony may be used
to support a factual statement for purposes of summary judgment.
Fed. R. Civ. P. 56(c)(1)(a).
Accordingly, because Defendants are the moving parties, to
the extent that Plaintiff’s Counter 56.1 Statement establishes
facts in dispute which the Defendants oppose but do not cite to
record evidence in support of their opposition, those facts will
be considered in the light most favorable to Plaintiff, unless the
Court has identified record evidence supporting a contrary view.
See Fed. R. Civ. P 56(e)(2); Baity v. Kralik, 51 F. Supp. 3d 414,
418 (S.D.N.Y. 2014) (collecting cases) (holding that “responses
that do not point to any evidence in the record that may create a
genuine issue of material fact do not function as denials, and
will
be
deemed
admissions
of
the
stated
fact.”
citation, and internal quotation marks omitted)).
(alteration,
As discussed in
detail below, Plaintiff’s factual statements that Defendants have
6
failed to challenge with supporting evidence are sufficient for
the
Court
to
find
the
existence
of
disputed
material
facts
precluding summary judgment.
Unless otherwise noted, the following facts are undisputed,
or the opposing party has not proffered evidence in the record to
dispute them.
Disputes are noted where the parties have submitted
admissible evidence to establish a factual dispute.
I.
Factual Background
A. New York State Corrections Officer Training Materials
The New York State Commission of Correction has model training
materials (“Model Instructions”) for corrections officers, which
provide sample lesson plans for corrections officers’ training.
(ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 133; ECF No. 196,
County Defs Reply 56.1 at ¶ 133.)
The Model Instructions, inter
alia, state the following:
STAFF SUPERVISE INMATES.
If you don’t monitor and manage inmates, you are not
properly supervising inmates therefor [sic] you are not
doing your job!
All too often, inmate escapes, assaults and disturbances
have occurred due to lack of proper supervision.3
Nassau County Defendants dispute the statements in this paragraph in part,
asserting that the statements are “accurate quotation[s] from the training
materials cited” but are “incomplete” and “taken out of context.” (ECF No.
196, County Defs. Reply 56.1 at ¶ 133.) The Court has reviewed Exhibit 5, and
concludes that Defendants’ asserted dispute is not genuine, as the statement is
not meaningfully incomplete or meaningfully removed from all context. See Major
League Baseball Properties, Inc. v. Salvino, Inc., 542 F.3d 290, 312, 314-15
(2d Cir. 2008) (“Under Rule 56, it is the court’s responsibility to determine
whether the opposing party's response to the assertion of a material fact
presents a dispute that is genuine.”).
3
7
(ECF No. Pl. Resp. County Defs. 56.1 at ¶ 133; ECF No. 189-3,
Exhibit 5 (“Ex. 5”) at 8.)
The Model Instructions instruct that
staff must remain within “earshot” of inmates during “active
supervision”
(when
inmates
have
“immediate
access”
to
other
inmates, such as in a day space or exercise area) and “must be
able to respond immediately to emergency situations.”
(ECF No.
186, Pl. Resp. County Defs. 56.1 at ¶ 134; ECF No. 189-4, Exhibit
6 (“Ex. 6”) at 12-13.)
The Model Instructions also state that
“[s]upervision cannot be met by staying behind an officer’s work
station.
Walking around a housing unit, talking to inmates,
observing activities and behaviors are prime elements to effective
supervision.”
ECF
No.
(ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 133;
189-18,
Exhibit
64
(“Ex.
64”)
at
6.)
The
Model
Instructions further advise that corrections officers use the
“ACID model” to “control disturbances,” which provides, inter
alia, that officers should observe the “type of incident,” “names
of inmates involved,” “number of inmates involved,” and “types of
weapons involved” in any incident.
(ECF No. 186, Pl. Resp. County
Defs. 56.1 at ¶¶ 137-38; ECF No. 189-19, Exhibit 65 (“Ex. 65”) at
10-11.)
After an incident has occurred, the ACID model instructs,
inter alia, that “inmate movement within your unit and throughout
the facility, particularly in areas near or leading to the housing
8
unit, needs to be stopped immediately.”
(ECF No. 186, Pl. Resp.
County Defs. 56.1 at ¶¶ 139; ECF No. 189-19, Ex. 65 at 692.)4
B. Inmate Handbook at NCCC
At NCCC, the “Inmate Handbook” describes the administrative
procedure for filing a complaint, or grievance, concerning the
facility.
(Pl. Resp. County Defs. 56.1 at ¶ 344; ECF No. 196,
County Defs. Reply 56.1 at ¶ 344.)
The Inmate Handbook states
that a detainee “must file a grievance within five (5) days of the
date of the act or occurrence leading to the grievance.”
(Pl.
Resp. County Defs. 56.1 at ¶ 345; ECF No. 196, County Defs. Reply
56.1 at ¶ 345.) Nassau County Defendants assert that “every inmate
gets [a handbook],” but there is no evidence in the record as to
how the handbook is disseminated to inmates.
(ECF No. 188-43,
Exhibit 54 (“Ex. 54”) at 96:19-97:08.)
C. Policies in Nassau County and at NCCCC
From 2011-2018, Defendant Sposato was the Sheriff of Nassau
County and had responsibility for NCCC.5
(ECF No. 184-1, County
Defs. 56.1 at ¶ 8; ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶
8; ECF No. 188-42, Ex. 54 at 38:21-38:23, 39:09-39:16).
As
4
Nassau County Defendants dispute the statements in this paragraph in part,
asserting that the statements are “accurate quotation[s] from the training
materials cited” but are “incomplete” and “taken out of context.” (ECF No.
196, County Defs. Reply 56.1 at ¶ 133.)
The Court has reviewed Exhibit 5,
Exhibit 6 and Exhibit 19 and concludes that Defendants’ asserted dispute is not
genuine, as the statements are not meaningfully incomplete or deprived of
relevant context. See Major League Baseball Properties, 542 F.3d at 312, 314.
Defendant Sposato’s term as Sheriff of Nassau County ended on January 1, 2018.
(ECF No. 43, Exhibit 54 at 33:12-16.)
5
9
Sheriff, Defendant Sposato rarely changed NCCC policies or created
new policies.6
(ECF No. 188-43, Ex. 54 at 51:14-52:01.)
The
parties dispute whether Defendant Sposato’s actions as Sheriff
included reducing the size of NCCC staff, and whether he was
involved
in
creating
corrections officers.7
policies
for
the
training
program
for
(ECF No. 186, Pl. Resp. County Defs. 56.1
at ¶¶ 149-50; ECF No. 196, County Defs. Reply 56.1 at ¶¶ 149-50;
ECF No. 188-43, Ex. 54 at 48:17-49:17; 54:16-57:21.)
The parties dispute whether there are policies to deter
assaults at NCCC, including whether there was any formal written
policy on investigating assaults on detainees and whether NCCC
recorded or preserved video footage after assaults.
(ECF No. 186,
Pl. Resp. County Defs. 56.1 at ¶¶ 181-82; ECF No. 196, County Defs.
Reply 56.1 at ¶¶ 181-82.)
Nassau County Defendants dispute this statement, asserting that the statement
is “an incomplete excerpt of the testimony cited” and is “taken out of context.”
(ECF No. 196, County Defs. Reply 56.1 at ¶ 149.) The Court has reviewed Exhibit
54 and concludes that Defendants’ asserted dispute is not genuine to the extent
that it contests the frequency of Defendant Sposato’s policy creation, as the
statement is not meaningfully incomplete or deprived of relevant context. See
Major League Baseball Properties, 542 F.3d at 312, 314.
Defendant Sposato
testified that he “didn’t create policies very often”; that it “wasn’t a
regularity that [he] was putting out policies”; and that “a new policy would be
very rare.” (ECF No. 188-43, Ex. 54 at 51:14-52:04; 52:14-53:19.)
6
The parties’ disputes regarding these statements appear to derive from
different interpretations of Defendant Sposato’s testimony.
(See No. 196,
County Defs. Reply 56.1 at ¶¶ 149, 150 (challenging Plaintiff’s statements of
fact as “an incomplete excerpt of the testimony cited” and “taken out of
context”.) Because Defendant Sposato’s testimony on the training program and
on whether he reduced the number of administrative staff includes several
contradictory statements, and therefore requires a credibility determination,
the factual disputes must be resolved by a factfinder. (See, e.g., ECF No.
188-43, Ex. 54 at 48:17-49:17; 54:16-60:02.)
7
10
i.
Training
During Defendant Sposato’s tenure, newly hired corrections
officers
at
NCCC
attended
a
training
coursework on various subjects.
academy
with
classroom
(ECF No. 186, Pl. Resp. County
Defs. 56.1 at ¶ 152; ECF No. 196, County Defs. Reply 56.1 at ¶
152.)
The parties dispute whether NCCC corrections officers
received training regarding detainee supervision techniques or
NCCC’s policies for detainee supervision.8 (ECF No. 186, Pl. Resp.
County Defs. 56.1 at ¶ 154; ECF No. 196, County Defs. Reply 56.1
at ¶ 154; ECF No. 42, Exhibit 53 (“Ex. 53”) at 63:15-63:22.)
After
graduating, NCCC corrections officers attended annual “in service”
trainings.
(ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 156;
ECF No. 196, County Defs. Reply 56.1 at ¶ 156.)
The parties
dispute whether there were any “in service” trainings on preventing
and responding to detainee assaults.
(ECF No. 186, Pl. Resp.
County Defs. 56.1 at ¶ 157; ECF No. 196, County Defs. Reply 56.1
at ¶ 157.)
ii.
Supervision Policies
The parties dispute whether corrections officers are required
by any policies or procedures to engage in “active supervision”
Although Plaintiff provided the Model Instructions for corrections officer
training as evidence of New York’s training standards, the parties dispute
whether NCCC corrections officers were trained based on the model. Furthermore,
it is not clear if the Model Instructions are required to be taught to
corrections officers in New York. (ECF No. 186, Pl. Resp. County Defs. 56.1 at
¶¶ 152-54; ECF No. 196, County Defs. Reply 56.1 at ¶¶ 152-54.)
8
11
when detainees are not in their individual cells, e.g., when
detainees are in the recreation yard.
(ECF No. 186, Pl. Resp.
County Defs. 56.1 at ¶¶ 167-68; ECF No. 196, County Defs. Reply
56.1 at ¶¶ 167-68; ECF No. 42, Ex. 53 at 44:20-45:10, 54:3-54:9.)
The parties dispute whether the custom or procedures at NCCC
permitted corrections officers to spend their shift supervising
the recreation yard from a plexiglass shack, and how often officers
would leave the shack during the recreation period.
(ECF No. 186,
Pl. Resp. County Defs. 56.1 at ¶¶ 171-72; ECF No. 196, County Defs.
Reply 56.1 at ¶¶ 167171-72.) They also dispute whether corrections
officers could interact with detainees without leaving the shack.
(ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 175; ECF No. 196,
County Defs. Reply 56.1 at ¶ 174.)
D. 2007 Incident at NCCC
In 2007, Plaintiff filed a grievance that he was assaulted by
corrections officers.
56.1 at ¶ 8.)
(Def. Ryan 56.1 at ¶ 8; Pl. Resp. Def. Ryan
Plaintiff filed a lawsuit alleging that he was
assaulted by NCCC correction officers, in which he attached copies
of his grievance paperwork as an exhibit.
(ECF No. 47, Exhibit
188-59 (“Ex. 59”) at 26:23–27:24; Def. Ryan 56.1 at ¶ 10; Pl. Resp.
Def. Ryan 56.1 at ¶ 10.)
In 2009, the case settled.
188-56, Exhibit 9 (“Ex. 9”) at 3.)
12
(ECF No.
E. 2017 Incident at NCCC
In 2017, Plaintiff was detained at NCCC from July 31, 2017 to
December 27, 2017, while awaiting trial.
(County Defs. 56.1 at ¶
3; Pl. Resp. County Defs. 56.1 at ¶¶ 3, 40.)
During this five-
month period when Plaintiff was in custody at NCCC, Defendant
Sposato
was
the
Nassau
County
Sherriff
overseeing
NCCC
and
Defendants Hollingshead, James, and Ryan all worked as corrections
officers at NCCC.
(County Defs. 56.1 at ¶¶ 9-11; Pl. Resp. County
Defs. 56.1 at ¶¶ 9-11.)
In 2017, NCCC had a computer database that held information
on detainees, including their disciplinary histories.
196, County Defs. Reply 56.1 at ¶ 160.)
The reports on each
detainee in the database were called “inmate pedigrees.”
¶ 161.)
(ECF No.
(Id. at
A hash mark notation in an inmate pedigree signified,
informally, that a detainee had a history of assaulting corrections
staff.9 Plaintiff’s inmate pedigree contained a hash mark notation
Nassau County Defendants dispute that the hash mark notation is an informal
mark that signifies a history of assaulting corrections staff. (ECF No. 196,
County Defs. Reply 56.1 at ¶¶ 162-63.) Nassau County Defendants do not cite to
record evidence to dispute this fact but argue that there is “no admissible
evidence” in support of this statement. (ECF No. 196, County Defs. Reply 56.1
at ¶ 163.) To support his statement, Plaintiff cites to sworn testimonies, by
Defendant James and Defendant Ryan, which are admissible for purposes of summary
judgment. Fed. R. Civ. P. 56(c)(1)(A); (see ECF No. 186, Pl. Resp. County Defs.
56.1 at ¶¶ 162-63; ECF No. 188-45, Exhibit 57 (“Ex. 57”) at 24; ECF No. 18844, Exhibit 55 (“Ex. 55”) at 70:05–71:18.)
9
Defendant Ryan asserts that he “can neither confirm or deny” the factual
assertion, which is insufficient to establish a disputed fact for a Rule 56.1
Statement. (ECF No. 187, Pl. Resp. Def. Ryan 56.1 at ¶¶ 105-07); see Scarpinato
v. 1770 Inn, LLC, No. 13-CV-0955(JS), 2015 WL 4751656, at *2 n.3 (E.D.N.Y. Aug.
11, 2015) (“[I]the context of a local 56.1 statement, an answer that ‘[a party]
can neither admit nor deny this statement based upon the factual record’ is not
13
on most pages.10
(ECF No. 196, County Defs. Reply 56.1 at ¶¶ 166,
252; ECF No. 194, Def. Ryan Reply 56.1 at ¶¶ 108, 194.)
Ryan had access to the NCCC computer database.
Defendant
(ECF No. 194, Def.
Ryan Reply 56.1 at ¶ 193; ECF No. 45, Exhibit 57 (“Ex. 57”) at
24.)
In the fall of 2017, Defendant Ryan was assigned to the E1-B
housing unit, where Plaintiff was housed. (ECF No. 188-40, Exhibit
51 (“Ex. 51”) at 114:2-114:7.)
Four formal complaints had been
filed against Defendant Ryan in the preceding nine months—by a
visitor, two inmates, and an attorney—and he was reassigned to the
E1-B housing unit, without a firearm, while the complaints were
being investigated.
(ECF No. 196, County Defs. Reply 56.1 at ¶¶
224-25; ECF No. 194, Def. Ryan Reply 56.1 at ¶¶ 129, 137, 143,
162, 166-68.)
(“IAU”)
closed
The Sheriff’s Department Internal Affairs Unit
each
investigation
after
finding
that
the
a sufficient response to establish a disputed fact.” (internal quotation marks
and citation omitted)).
10 Nassau County Defendants dispute—without citing to record evidence—that
Plaintiff’s inmate pedigree contained a hash mark notation, stating only that
Plaintiff “offered no admissible evidence” in support. (ECF No. 196, County
Defs. Reply 56.1 at ¶¶ 166.) Plaintiff cites to Plaintiff Exhibit 36, which
appears to be a printout of Plaintiff’s inmate pedigree and contains a hash
mark notation. (ECF No. 188-26, Ex. 36.) Nassau County Defendants do not state
why Exhibit 36 would be inadmissible evidence; moreover, a printout of inmate
pedigrees from NCCC’s computer database would be properly considered under
Federal Rule of Civil Procedure 56(c)(1)(A) as electronically stored
information, and it could be authenticated under Federal Rule of Evidence
902(14) if it could be properly certified under Rule 902(11). Fed. R. Civ. P.
902(14). Further, because Plaintiff is not offering the printout for the truth
of its contents, it is not hearsay. See Federal Rule of Evidence 802(c).
14
complaints were “not sustained.”11
(ECF No. 194, Def. Ryan Reply
56.1 at ¶¶ 135, 142, 160, 170.)
The parties dispute the following events.
Plaintiff asserts
that in late October or early November 2017, he asked Defendant
Ryan if he could be assigned to a job working the food cart, which
was a desirable position for detainees at NCCC.
114:16.)
(Id. at 114:11-
Plaintiff contends that Defendant Ryan told Plaintiff
that Defendant Ryan would “go check it out.”
(Id.)
Later that
day, Defendant Ryan called Plaintiff a “snitch” while walking by
Plaintiff’s cell, loudly enough for other detainees to hear.
at 114:16-114:23.)
Plaintiff asserts that there was a “weird
silence” in his housing unit afterwards.
59 (“Ex. 59”) at 101:2-101:16.)
two
weeks
later,
(Id.
Defendant
(ECF No. 188-47, Exhibit
Plaintiff asserts that, around
Ryan
called
Plaintiff
a
“fucking
snitch,” in front of multiple other detainees while they were
gathered watching television, and that the other detainees moved
away from Plaintiff afterwards.
Defendant
Ryan
broadly
(Id. at 110:6-111:4.)
disputes
this
account,
including
asserting that (1) he does not recall being assigned to the E1B
After a fifth formal complaint was filed in May 2018, IAU found that Defendant
Ryan had “fraternized with an incarcerated inmate” and had “accepted multiple
calls from an incarcerated inmate to his personal cellular phone,” violating
NCCC’s policies. (ECF No. 196, County Defs. Reply 56.1 at ¶¶ 229, 236; ECF No.
194, Def. Ryan Reply 56.1 at ¶¶ 171, 178; ECF No. 189-14, Exhibit 56A (“Ex.
56A”) at 2, 18.) Defendant Ryan resigned in September 2018, and the County
agreed to discontinue any pending disciplinary proceedings.
(ECF No. 196,
County Defs. Reply 56.1 at ¶ 238; ECF No. 194, Def. Ryan Reply 56.1 at ¶ 170.)
11
15
housing units; (2) he has no recollection of having a conversation
with Plaintiff in the fall of 2017; and (3) he had never heard the
word “snitch” in the context of his work as a corrections officer.
(ECF No. 188-48, Exhibit 60 (“Ex. 60”) at 122:6-10; 123:5-123:13;
126:13-127:3.)
He also asserts that he had never used the word
‘snitch’ in the context described by Plaintiff.
(Id. at 134:12-
134:23.)
The parties do not dispute, however, that Defendant Ryan was
aware that referring to a detainee as a “snitch” could put a
detainee in danger.
(ECF No. 187, Pl. Resp. Def. Ryan 56.1 at ¶
204; ECF No. 194, Def. Ryan Reply 56.1 at ¶ 204.)
The parties
dispute whether Plaintiff feared for his safety prior to the
incident on November 18, 2017, which occurred as follows.
(ECF
No. 184-1, County Defs. 56.1 at ¶ 31; 197-20, Exhibit T (“Ex. T”)
at 103:18-104:5; ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 31;
197-20, Ex. T at 104:7-104:21.)
On November 18, 2017, Plaintiff went to recreation at 1:00
PM, where he and other E1B residents were assigned to the A-B
recreation yard for a period of one hour.
(ECF No. 184-1, County
Defs. 56.1 at ¶¶ 12, 19; ECF No. 186, Pl. Resp. County Defs. 56.1
at
¶¶
12,
19.)
Defendants
Hollingshead
and
James
were
the
corrections officers assigned to supervise the A-B recreation yard
at that time.
(ECF No. 184-1, County Defs. 56.1 at ¶ 14; ECF No.
186, Pl. Resp. County Defs. 56.1 at ¶ 14; County Defs. Reply 56.1
16
at ¶ 270.)
The parties dispute whether corrections officers
inspect the jackets of all detainees and sweep the yard for
contraband prior to the start of recreation periods, and whether
Defendant James did so on November 18, 2017.
(ECF No. 184-1,
County Defs. 56.1 at ¶¶ 16-18; ECF No. 186, Pl. Resp. County Defs.
56.1 at ¶¶ 16-18.)
The parties dispute the size of the yard, but agree that it
included a small see-through “shack” with plexiglass walls.
(ECF
No. 184-1, County Defs. 56.1 at ¶ 23; ECF No. 186, Pl. Resp. County
Defs. 56.1 at ¶ 23; County Defs. Reply 56.1 at ¶ 270.)
The shack
was around seven feet away from the entrance of the yard and
overlooked the entire yard.
(Id.)
The parties dispute the extent
to which Defendants Hollingshead and James could see detainees in
the yard from the shack.
(ECF No. 184-1, County Defs. 56.1 at ¶
27; ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 27; ECF No. 18843, Ex. 54 at 117:13-117:19.)
From the shack, correction officers
were able to intervene if they observed a threat to a detainee,
and they could communicate by radio and telephone with other NCCC
staff.12
(ECF No. 196, County Defs. Reply 56.1 at ¶¶ 279-80.)
The
parties dispute whether it was customary at NCCC for corrections
officers to remain in the shack during a recreation period.
(ECF
Nassau County Defendants dispute the “implication[s]” that may derive from
these factual assertions but agree that the factual statements “accurately
summarize[] the deposition testimony cited.” (ECF No. 196, County Defs. Reply
56.1 at ¶¶ 279-80.) Therefore, the Court accepts as undisputed these factual
statements proffered by Plaintiff with support from record evidence.
12
17
No. 186, Pl. Resp. County Defs. 56.1 at ¶ 281; ECF No. 196, County
Defs. Reply 56.1 at ¶ 281.)
There were no metal detectors in the yard, but there was at
least one camera, stationed above the door leading from the E1B
housing unit.
(ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 267;
ECF No. 188-39, Exhibit 50 (“Ex. 50”) at 35:6-35:21.)
The camera
did not record the incident on November 18, 2017, and there was no
video evidence of the incident.
56.1 at ¶¶ 268-69.)
(ECF No. 196, County Defs. Reply
The parties dispute whether the cameras were
generally inoperable.
(Id. at ¶¶ 267-69; see ECF No. 189-9,
Exhibit 31 (“Ex. 31”) at 2.)
At some point during the recreation period, Sanchez was
attacked by unknown detainees, who slashed his right cheek from
his mouth to his ear and beat him on the ground.
(ECF No. 186,
Pl. Resp. County Defs. 56.1 at ¶¶ 283-85; ECF No. 196, County Defs.
Reply 56.1 at ¶¶ 283-85.)
Plaintiff was bleeding from the cut and
his clothing was bloodstained.
(ECF No. 186, Pl. Resp. County
Defs. 56.1 at ¶¶ 283-85.)
Afterwards, the detainees “scattered
into the recreation yard.”
(ECF No. 186, Pl. Resp. County Defs.
56.1 at ¶ 286; ECF No. 196, County Defs. Reply 56.1 at ¶ 286.)
Defendants
Hollingshead
and
James
laceration on the right side of his face.
saw
Plaintiff
with
a
(ECF No. 186, Pl. Resp.
County Defs. 56.1 at ¶ 32.)
The parties dispute how they became
aware
Plaintiff
of
the
laceration.
18
asserts
that
Defendants
Hollingshead and James were directly behind him in the shack when
he was assaulted.
(ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶
232; ECF No. 188-40, Ex. 51, at 80:18-81:3, 81:25-82:12.)
He
asserts that, after getting to his feet after he was attacked, he
looked towards the shack for several minutes, but neither Defendant
left the shack until the end of the recreation period.
(ECF No.
186, Pl. Resp. County Defs. 56.1 at ¶¶ 233-34; ECF No. 188-40, Ex.
51,
at
80:18-80:23.)
Nassau
County
Defendants
assert
that
Defendant Hollingshead stopped Plaintiff in the recreation yard
because there was blood on Plaintiff’s shirt, whereas Defendant
James was by the door, moving detainees back to housing, when he
realized that Plaintiff had been cut. (ECF No. 184-1, County Defs.
56.1 at ¶¶ 33-34.)
The parties agree that Defendant Hollingshead stayed
with Plaintiff, while Defendant James directed the other detainees
to their housing unit.
(ECF No. 184-1, County Defs. 56.1 at ¶ 39;
ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 295.)
Plaintiff
asserts that Hollingshead told him to “calm down” and that “things
come full circle,” which Nassau County Defendants dispute.
(ECF
No. 186, Pl. Resp. County Defs. 56.1 at ¶ 296; ECF No. 188-40, Ex.
51, at 90:10-91:2, 179:20-180:24.)
Defendants Hollingshead and
James
and
contacted
their
supervisors
a
medic,
and
Plaintiff to go to the bathroom to attend to his wound.
186, Pl. Resp. County Defs. 56.1 at ¶¶ 40-41.)
19
allowed
(ECF No.
Plaintiff was taken
to the medical unit by a third officer, and then taken to the
hospital via ambulance.
(Id. at ¶¶ 43-44.)
Plaintiff was treated
at the hospital for his injury and returned to NCCC later that
afternoon.
(ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 55; ECF
No. 197-19, Exhibit S (“Ex. S”) at 5.)
Defendants Hollingshead and James notified Sergeant Jonathan
Bertin, among others, about the incident.
County Defs. 56.1 at ¶¶ 40-41.)
(ECF No. 186, Pl. Resp.
Sergeant Bertin was the first-
floor building sergeant for the E housing unit.
(ECF No. 188-46,
Ex. 58 at 21:6-21:13.)
Bertin supervised the officers assigned to
the
conducted
first
floor,
inmate assaults.
and
preliminary
(Id. at 21:20-22:16.)
investigations
of
He was responsible for
carrying out the preliminary investigation of Plaintiff’s assault.
(Id. at 114:7-114:17.)
There was no NCCC policy that Bertin knew
of that described how a building sergeant should investigate an
inmate assault, or secure and identify contraband when an assault
involved an unknown object.13 (Id. at 121:5-121:18.) Any procedure
Nassau County Defendants dispute this statement in part. (ECF No. 196, County
Defs. Reply 56.1 at ¶ 305.) Nassau County Defendants assert that the “statement
accurately summarizes the deposition testimony cited” but contend that “the
statement is vague as to ‘formal NCCC policy’ and ‘specifying what steps should
be taken.’” (Id.) Nassau County Defendants do not cite to record evidence.
The Court has reviewed the relevant deposition transcript, and concludes that
Defendants’ asserted dispute is not genuine.
See Major League Baseball
Properties, 542 F.3d at 312, 314. Bertin’s deposition included the following
exchange between himself and the lawyer questioning him:
13
Q: Is there a policy in place that lays out the steps that a building
sergeant should take to investigate an inmate assault?
A: Not that I know of.
Q: Okay. So this is another thing at NCCC that would be learned on
the job?
20
for an investigation was learned on-the-job or through supervisor
directions.14
(ECF No. 196, County Defs. Reply 56.1 at ¶ 307; ECF
No. 188-46, Ex. 58 at 121:11-121:18.)
There was no staff handbook
that listed NCCC policies or procedures.
at 26:06-26:07.)
(ECF No. 188-41, Ex. 42
Corrections officers could access policies on a
computer, but there was no search function on the intranet page
that listed the policies.
(Id. at 26:08-28:19.)
After the incident, the detainees were not searched prior to
returning from the recreation yard to the housing unit.
¶ 45.)
(Id. at
Bertin did not ask Defendants Hollingshead or James if
they had searched any detainees who were in the A-B recreation
yard, or if they had searched the yard or adjoining areas after
Plaintiff was attacked, or if they had identified any suspects.
(ECF No. 196, County Defs. Reply 56.1 at ¶¶ 312.)
Around 40
minutes after the end of the recreation period, the E1A and B
blocks of the E1 housing unit were locked down.
(ECF No. 186, Pl.
A: Or through supervisory direction.
(ECF No. 188-46, Ex. 58 at 121:11-121:18.)
place during Bertin’s deposition:
The following exchange also took
Q: Is there a standard operating procedure or policy in place at
NCCC to secure and identify contraband when there’s been an assault
on an inmate with an unknown object?
A: I don’t know.
Q: Okay. But you, as the building sergeant, you know, for this
housing block in 2018, do not recall such a policy being in place?
A: No, I don’t recall.
(Id. at 143:16-144:1.)
14
See supra, note 13.
21
Resp. County Defs. 56.1 at ¶¶ 46; ECF No. 188-56, Exhibit 58 (“Ex.
58”) at 176:9-176:17; ECF No. 189-9, Ex. 31.)
Two hours later,
NCCC staff searched the E1A and B blocks to locate contraband used
in the assault.
(ECF No. 196, County Defs. Reply 56.1 at ¶ 317;
ECF No. 188-46, Ex. 58 at 194:6-194:25.)
also searched.
The recreation yard was
(ECF No. 186, Pl. Resp. County Defs. at ¶ 50; ECF
No. 197-21, Exhibit U (“Ex. U”) at 49).
of any kind was found.
No weapon or contraband
(ECF No. ECF No. 196, County Defs. Reply
56.1 at ¶ 328; ECF No. 197-21, Exhibit U (“Ex. U”) at 49.)
Later that same day, November 18, Bertin reported the assault
to
the
Criminal
Investigation
Unit
(“CIU”)
and
Investigation Unit (“GIU”) for further investigation.
No. 46, Ex. 58, 215:22-216:21.)
a report within 24 hours.
the
Gang
(Id.; ECF
Generally, CIU would follow up on
(ECF No. 46, Ex. 58 at 216:22-217:7.)
Neither CIU nor GIU began conducting interviews about the assault
within 24 hours.
(Id. at 216:22-217:22.)
GIU or CIU usually
conducted interviews and then informed supervisory staff at NCCC
as to how to proceed.
(Id. at 219:20-220:3.)
Because neither GIU
nor CIU had begun interviews by November 19, 2017, the day after
the assault, Bertin was instructed by Captain Fratto to begin a
preliminary
investigation.
(Id.
at
219:20-221:2.)
Bertin
investigated by (1) asking corrections officers if any detainee
had provided information about the assault; and (2) making a
general announcement about seeking information about the assault,
22
and then walking through the housing unit to see if detainees would
disclose any information.
(Id. at 221:21-224:3.)
identified the individuals who assaulted Plaintiff.
NCCC never
(ECF No. 186,
Pl. Resp. County Defs. 56.1 at ¶ 329; County Defs. 56.1 at ¶ 329.)
F. After the November 18, 2017 incident
Plaintiff
was
placed
in
involuntary
protective
(“IPC”) after he returned from the hospital.
custody
(ECF No. 186, Pl.
Resp. County Defs. 56.1 at ¶ 329; ECF No. 197-21, Ex. U at 6.)
On
November 21, 2017, Plaintiff requested to be moved out of IPC and
placed in general population and stated that the assault was a
“random incident.”
(ECF No. 188-23, Exhibit 27 (“Ex. 27”).)
Plaintiff feared for his safety while in IPC because (1) IPC
housing was populated with members of violent criminal gangs; (2)
his cell was being cleaned out to remove blood when he arrived at
IPC, after an assault on a detainee in that cell; (3) members of
a gang who were in IPC told Sanchez that they had attacked the
detainee
who
had
previously
occupied
his
cell
based
on
the
encouragement of a corrections officer; and (4) Defendant Ryan was
among
the
corrections
officers
Plaintiff was housed there.
56.1 at ¶¶ 331-43.)
assigned
to
IPC
at
the
time
(ECF No. 186, Pl. Resp. County Defs.
While in IPC, Plaintiff did not file a formal
grievance about the assault because he was fearful of retaliation.
(Id. at ¶ 348.)
He was released from IPC to general population on
November 28, 2017.
(ECF No. 188-23, Exhibit 23 (“Ex. 23” at 1.)
23
On November 29, 2017, CIU15 interviewed Plaintiff about the
assault.
(ECF No. 184-1, County Defs. 56.1 at ¶ 59; ECF No. 186,
Pl. Resp. County Defs. 56.1 at ¶ 59.)
The parties dispute what
Plaintiff told the CIU investigators. (ECF No. 184-1, County Defs.
56.1 at ¶ 59; ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 59.)
Nassau
County
Defendants
assert
that
Plaintiff
told
the
investigator that he did not know who cut him and that he did not
want to elaborate further, and then signed a form declining to
consult with the District Attorney’s office regarding possible
criminal prosecution.
(ECF No. 197-30, Exhibit DD (“Ex. DD”) at
39-40.)
Plaintiff disputes this account, and asserts that he told the
CIU investigator that he “was cut and beat up right in front of
two corrections officers, and they did nothing to help [him], and
that [he] had a prior situation with an officer that referred to
[him] as a snitch.”
(ECF No. 40, Ex. 51 at 126:14-126:21.)
Plaintiff also asserted that he was uncomfortable speaking to the
CIU investigator because the interview took place in a room that
was visible to a significant number of detainees, a concern which
he told the investigator.
(Id. at 121:23-122:16.)
He asserts
that he signed the form because he wanted to leave the room as
quickly as possible.
(Id. at 128:20-129:7.)
CIU is part of the Sheriff’s Bureau of Investigations.
U at 39-40; ECF No. 188-40, Ex. 51 at 123-16:124:24.)
15
24
(ECF No. 197-21, Ex.
In December 2017, Plaintiff wrote letters to various members
of NCCC staff, including staff in the housing unit and the warden,
stating that he wanted to be transferred to Rikers Island.
(ECF
No. 196, County Defs. Reply 56.1 at ¶¶ 367-69; ECF No. 188-40, Ex.
51 at 208:7-211:7.)
In his letters, Plaintiff stated that his
request was connected to an incident with a corrections officer
and to his assault, and that he would explain further once he had
been moved.16
(ECF No. 196, County Defs. Reply 56.1 at ¶¶ 367-69;
ECF No. 188-40, Ex. 51 at 208:7-211:7.)
On December 18, 2017,
Plaintiff, pro se, filed the first complaint in this action.
(ECF
No. 1.)
Plaintiff was transferred to Rikers Island on December 27,
2017. (County Defs. 56.1 at ¶ 5; Pl. Resp. County Defs. 56.1 at ¶
5).
After his transfer, he called 3-1-1, “spoke to two captains”
at Rikers, submitted written statements about the incidents at
NCCC, and wrote numerous letters documenting the incident to
various parties, including a second letter to the NCCC warden.17
(ECF No. 196, County Defs. Reply 56.1 at ¶¶ 367-69; ECF No. 18840, Ex. 51 at 214:18-215:10.)
Defendants dispute the factual statements in this paragraph but provide no
record evidence to contradict Plaintiff’s deposition testimony. (ECF No. 196,
County Defs. Reply 56.1 at ¶¶ 367-69.)
16
Defendants dispute the factual statements in this paragraph but provide no
record evidence to contradict Plaintiff’s deposition testimony. (ECF No. 196,
County Defs. Reply 56.1 at ¶¶ 373.)
17
25
Plaintiff was transferred back to NCCC on April 4, 2018. (ECF
No. 184-1, County Defs. 56.1 at ¶ 6; ECF No. 186, Pl. Resp. County
Defs. 56.1 at ¶ 6.)
After his transfer, he wrote a letter to the
then-presiding judge in this action, then United States District
Court Judge Joseph F. Bianco,18 stating that he was believed he was
in danger at NCCC, given that he believed the assault had been
provoked by corrections officers and that corrections officers
were aware of the instant action.
(ECF No. 16, Letter; ECF No.
196, County Defs. Reply 56.1 at ¶¶ 376-80; ECF No. 188-40, Ex. 51
at 214:18-215:10.)
On May 18, 2018, the Sheriff’s Department Internal Affairs
Unit (“IAU”) interviewed Plaintiff about the Judge Bianco letter.
(ECF No. 196, County Defs. Reply 56.1 at ¶ 382; ECF No. 189-12,
Exhibit 40 (“Ex. 40”) at 2.)
During the interview, Plaintiff
stated that he had been assaulted on November 18, 2017, and that
he believed that the assault had been provoked by corrections
officers in retaliation for his 2007 lawsuit. (ECF No. 196, County
Defs. Reply 56.1 at ¶ 383.)
Plaintiff stated that he had not
immediately reported this suspicion because corrections officers
“run the jail.”19
18
(Id. at ¶ 385; Exhibit 63 (“Ex. 63”) at 3:35-
The action was reassigned to the undersigned in April 2019.
19
Defendants purport to dispute the statements in this paragraph because “there
has been no finding of fact that these events took place” but agree that the
statements are “an accurate summary of the record cited.” (ECF No. 196, County
Defs. Reply 56.1 at ¶¶ 373.) The Court therefore finds that the statements are
undisputed.
26
3:49.)
Plaintiff also stated that “it wasn’t every officer . . .
it’s like two or three, it’s not like it was a big conspiracy.”20
(Id. at ¶ 385; Ex. 63 at 6:15-6:49.)
In response to questioning
from the IAU investigator as to why Plaintiff had waited to report
his suspicions until he wrote the Judge Bianco letter, Plaintiff
stated:
I filed a lawsuit immediately, when I went to Rikers, I
told them immediately. I spoke to captains and put it
in writing, all that. But I just didn’t want to have it
in the open here [at NCCC] because what are you going to
do?
Ask for a grievance?
You know what I’m saying,
what is that going to do? I have to ask the corporal
for a grievance and then they’ll be like ‘why.’ . . . I
just wanted to get moved. That’s what I really wanted.
I wanted to get the fuck out of this jail.21
(Ex. 63 at 11:20-11:46.)
On June 12, 2018, Plaintiff was transferred to Fishkill
Correctional Facility.
¶ 388.)
(ECF No. 196, County Defs. Reply 56.1 at
On August 29, 2019, Plaintiff was released from custody.
(Id. at 389.)
G. Other Assault Incidents at NCCC
From 1999-2018, at least 11 detainees filed complaints about
being assaulted while in custody at NCCC, either by other detainees
Plaintiff disputes this statement in part, stating that it is “vague,
ambiguous and taken out of context.”
The Court has reviewed the relevant
audiotape, and concludes that Plaintiff’s asserted dispute is not genuine. See
Major League Baseball Properties, 542 F.3d at 312, 314.
20
Plaintiff disputes this statement in part, stating that the quotation as
stated by Defendants was “misleading.”
The Court has reviewed the relevant
audiotape, and concludes that Plaintiff’s asserted dispute is not genuine. See
Major League Baseball Properties, 542 F.3d at 312, 314.
21
27
or by corrections officers.22
(See ECF No. 186, Pl. Resp. County
Defs. 56.1 at ¶¶ 106-116, 118, 120, 123.)
Plaintiff testified
that some corrections officers at NCCC encouraged detainees to
Plaintiff’s Counter Rule 56.1 Statement includes details concerning lawsuits
and alleged assaults on NCCC detainees. (See ECF No. 186, Pl. Resp. County
Defs. 56.1 at ¶¶ 106-123.) To support these factual statements, Plaintiff cites
to the complaint filed in each case, as well as news articles. (Id.) To each
of those factual statements, Nassau County Defendants state the following:
“Disputed, and neither relevant nor material. The statement is a recitation of
allegations only; there has been no finding of fact establishing this
allegation.” (See ECF No. 196, County Defs. Reply 56.1 at ¶¶ 106-116, 118,
120, 123.) Defendant Ryan states the following to each factual statement:
22
Defendant can neither confirm or deny this fact. Defendant objects
to this statement in that it is neither material as required by
Local Rule 56.1, nor relevant. Additionally, Local Rule 56.1
requires the moving party to list material facts not in dispute,
Plaintiff has merely regurgitated the allegations contained in his
amended complaints. This is a clear violation of Rule 56.1 and a
waste of the Court’s time.
(See ECF No. 194, Def. Ryan Reply 56.1 at ¶¶ 106-116, 118, 120, 123.)
The Court notes that complaints and news articles generally are not considered
admissible evidence for the purpose of supporting or opposing a motion for
summary judgment. See Henek v. CSC Holdings, LLC, 449 F. Supp. 3d 35, 38 n.2
(E.D.N.Y. 2020) (collecting cases); Outerbridge v. City of New York, No. 13
CIV. 5459 (AT), 2015 WL 5813387, at *4 (S.D.N.Y. Sept. 30, 2015) (“It is wellestablished that “newspaper articles offered for the truth of the matters
asserted therein are inadmissible hearsay that may not be considered by the
Court in deciding a motion for summary judgment.”).
Here, however, although the news articles and complaints are inadmissible to
prove the truth of the matters asserted, they may be admissible to establish
that Defendants had notice of the articles and lawsuits alleging assaults on
NCCC inmates. See generally Fiacco v. City of Rensselaer, 783 F.2d 319, 328
(2d Cir. 1986) (“Whether or not the claims had validity, the very assertion of
a number of such claims put the City on notice.”).
The factual statements
therefore are material and relevant to Plaintiff’s claim against the County for
deliberate indifference to Plaintiff’s constitutional rights by failing to train
and supervise its employees. As discussed below, a plaintiff must establish
for such a claim “that the need for more or better supervision to protect
against constitutional violations was obvious”; further, that “obvious need may
be demonstrated through proof of repeated complaints of civil rights
violations.” Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995). The
Court discusses the legal elements of this claim in detail below, including
whether the complaints and news articles cited to by Plaintiff are sufficient
to establish notice.
28
attack other detainees.23
Additionally, criminal gangs operated
inside NCCC in 2017, and Defendant James was aware of gang violence
incidents in the facility.24
II.
Procedural History
On December 18, 2017, Plaintiff, pro se, filed the original
complaint in this action against Defendant Nassau County and
against NCCC.
Bianco.
(ECF No. 1.)
The action was assigned to Judge
On May 2, 2018, Plaintiff filed an amended complaint
against Nassau County, NCCC, John Does #1 and #2, and Armor
Correctional Health Services.25
(ECF No. 15.)
2018, Plaintiff filed the “Judge Bianco letter.”
Also on May 2,
(ECF No. 15.)
On May 14, 2018, Plaintiff requested to amend his complaint again
In support of this factual statement, Plaintiff cites to his deposition
testimony. (See ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 105; ECF No.
188-40, Ex. 51 at 171:4–173:6.) Nassau County Defendants dispute this statement
by stating “Disputed. The statement is a recitation of allegations only; there
was no finding that these events in fact took place, nor is there any admissible
evidence in support thereof.” (ECF No. 196, County Defs. Reply 56.1 at ¶ 105.)
Deposition testimony is record evidence.
Fed. R. Civ. P. 56(c)(1)(a).
Defendant Ryan disputes this statement only by stating “Denied.” (ECF No. 194,
Def. Ryan Reply 56.1 at ¶ 47.)
As noted above, purported disputes as to
Plaintiff’s Counter 56.1 Statement for which the Defendants do not cite to
record evidence or challenge the admissibility of evidence are not genuine
disputes, unless the Court has otherwise identified record evidence supporting
a dispute of fact. See Fed. R. Civ. P 56(e)(2); Baity, 51 F. Supp. 3d at 418.
23
Nassau County Defendants dispute this statement, asserting that Defendant
James’s deposition testimony and Sergeant Bertin’s deposition testimony, cited
by Plaintiff in support of this statement, was “taken out of context” and
“misleading and inaccurate.” (ECF No. 196, County Defs. Reply 56.1 at ¶ 103.)
The Court has reviewed the deposition testimony, and concludes that Nassau
County Defendants’ asserted dispute as to the operation of criminal gangs is
not genuine, as the deposition testimony is not meaningfully taken out of
context. See Major League Baseball Properties, Inc., 542 F.3d at 312; (see ECF
No. 188-44, Ex. 55 at 31:17-31:20; ECF No. 46, Ex. 58 at 182:4-182:17.)
24
Defendant Armor Correctional Health Services is referred to as Armor Medical
Group.
25
29
because he “sent the wrong front cover.”
(ECF No. 19.)
On May
30, 2018, Judge Bianco granted Plaintiff’s motion to amend and
ordered the Nassau County Attorney and the United States Marshals
Service to help ascertain the names and identities of John Does #1
and #2, named in the second amended complaint, and serve them.
(ECF No. 22.)
The second amended complaint was entered on the
docket on May 31, 2018 and included as defendants John Does #1-5.
(ECF No. 21.)
After Armor Medical Group moved to dismiss for
failure to state a claim, Plaintiff moved for summary judgment
against all defendants.
(ECF Nos. 47, 52.)
In March 2019, Armor’s
motion to dismiss was granted and Plaintiff’s motion for summary
judgment was denied.
(ECF Nos. 74, 79.)
In April 2019, the case was reassigned to the undersigned.
In June 2019, the Nassau County Attorney identified John Does #1
and #2 as Defendants Hollingshead and James.
the
parties
counsel.
agreed
to
mediation,
(ECF Nos. 101, 110.)
(ECF No. 99.)
Plaintiff
secured
pro
bono
Armor and Plaintiff agreed to a
settlement, and stipulated to a dismissal with prejudice.
No. 116, 118.)
After
(ECF
After the parties engaged in discovery, Plaintiff
filed what he designated as a fourth amended complaint on April 1,
2020.26
In
July
2020,
Plaintiff
alerted
the
Court
that
he
The Court notes that the amended complaint filed on April 1, 2020 is titled
“Amended Complaint (Fourth)” but is the third amended complaint. (ECF No. 126;
see also ECF No. 1, Compl.; ECF No. 15, Amended Complaint; ECF No. 21, Amended
Complaint.) To avoid confusion, however, the Court will refer to the April 1,
2020 amended complaint as the fourth amended complaint.
26
30
identified
John
Doe
#3
through
discovery.
(ECF No. 150.)
Accordingly, Plaintiff filed
photographs
produced
the operative
during
fifth amended
complaint, including claims against Defendant Ryan, on August 5,
2020.27
(ECF No. 151.)
He asserts the violation of his Fourteenth
Amendment rights by (1) a failure to protect and intervene, against
Defendants
liability
Ryan,
for
Hollingshead,
unsafe
conditions
and
at
James;
NCCC,
(2)
supervisory
against
Defendant
Sposato; and (3) municipal liability for failure to train and
supervise employees, against Nassau County.
Defendants moved for summary judgment.
On March 28, 2022,
(ECF Nos. 215, 216.)
LEGAL STANDARD
Summary judgment is appropriate when a movant demonstrates
“that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).
Fed. R. Civ.
“A fact is ‘material’ for these purposes when it ‘might
affect the outcome of the suit under the governing law.’”
Rojas
v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 104 (2d Cir.
2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)).
In deciding the motion, the Court must resolve all
The Court notes that the amended complaint filed on August 5, 2020 is titled
“Amended Complaint, Fifth Amended Complaint” but is the fourth amended
complaint.
(ECF No. 151; see also ECF No. 1, Compl.; ECF No. 15, Amended
Complaint; ECF No. 21, Amended Complaint; ECF No. 126, Fourth Amended
Complaint.) To avoid confusion, however, the Court will refer to the August 5,
2020 amended complaint as the fifth amended complaint.
27
31
ambiguities and draw all reasonable inferences in favor of the
non-moving party.
See Zalaski v. City of Bridgeport Police Dep’t,
613 F.3d 336, 340 (2d Cir. 2010).
When bringing a motion for summary judgment, the movant
carries the burden of demonstrating the absence of any disputed
issues of material fact and entitlement to judgment as a matter of
law.
Rojas, 660 F.3d at 104.
The movant must point to evidence
in the record, “including depositions, documents . . . [and]
affidavits or declarations,” Fed. R. Civ. P. 56(c)(1)(A), “which
it believes demonstrate[s] the absence of a genuine issue of
material fact.”
(1986).
Celotex Corp. v. Catrett, 477 U.S. 317, 323
It may also indicate the absence of a factual dispute by
“showing . . . that an adverse party cannot produce admissible
evidence to support the fact.”
Fed. R. Civ. P. 56(c)(1)(B).
Put
another way, “[w]here the record taken as a whole could not lead
a rational trier of fact to find for the non-moving party, there
is no ‘genuine issue for trial.’”
Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574,587 (1986).
Once the moving party has met its burden, the nonmoving party
“must come forward with admissible evidence sufficient to raise a
genuine
issue
judgment.”
of
fact
for
trial
in
order
to
avoid
summary
Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d
Cir. 2008) (citing Celotex Corp., 477 U.S. at 322-23).
The non-
movant cannot rely on the allegations in his or her pleadings,
32
conclusory statements, or on “mere assertions that affidavits
supporting the motion are not credible.”
Gottlieb v. Cnty. of
Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citations
omitted).
In deciding a motion for summary judgment, the Court is
not to weigh evidence, assess the credibility of witnesses, or
resolve issues of fact.
United States v. Rem, 38 F.3d 634, 644
(2d Cir. 1994) (citations omitted).
DISCUSSION
I.
PLRA Exhaustion
The PLRA provides that “[n]o action shall be brought with
respect to prison conditions under section 1983 . . . or any other
Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are
available are exhausted.”
42 U.S.C. § 1997e(a).
The statute
requires “proper exhaustion” of administrative remedies prior to
bringing a federal lawsuit, including “compliance with an agency’s
deadlines and other critical procedural rules.”
Lucente v. Cnty.
of Suffolk, 980 F.3d 284, 311 (2d Cir. 2020) (citation omitted).
The exhaustion requirement is mandatory and “applies to all inmate
suits
about
prison
life,
whether
circumstances or particular episodes.”
they
involve
general
Hill v. Curcione, 657 F.3d
116, 124 (2d Cir. 2011) (internal quotation marks and citation
omitted).
33
The
NCCC
provides
an
“Inmate Grievance Program.”
10”)
at
9.)
NCCC’s
administrative
remedy
through
its
(ECF No. 188-7, Exhibit 10 (“Pl. Ex.
“Inmate
Handbook”
states
the
following
regarding the process for filing grievances:
You may attempt to resolve your complaint in an
informal manner with the housing area officers and/or
supervisors prior to filing a written (formal)
grievance.
If the housing area officers and/or
supervisors are unable to resolve your complaint, or
if you do not wish to attempt to resolve your
complaint in an informal manner, you may access the
grievance process by completing a Grievance form.
(Id.) It further states that inmates “must file a grievance within
five (5) days of the date of the act or occurrence leading to the
grievance.”
(Id.)
The parties agree that Plaintiff did not file a grievance at
NCCC within five days of the alleged assault against Plaintiff.
(See ECF Nos. 215-4, Nassau County Defs Mem. of Law at 11-12; 21511, Pl. Mem. at 16-17; 216-2 Def Ryan Mem. of Law at 16.)
Defendants assert that Plaintiff’s failure to file a grievance
within five days constitutes failure to exhaust under the PLRA and
bars Plaintiff’s action in its entirety.
(See ECF Nos. 215-4,
Nassau County Defs Mem. of Law at 11-12; 216-2 Def Ryan Mem. of
Law at 16-17.)
Plaintiff counters that he was not a prisoner when
the operative complaint (the fifth amended complaint) in this
action was filed, and thus the PLRA’s exhaustion requirement does
not bar his claims.
(ECF No. 215-11, Pl. Mem. at 13-14.)
34
A. Application of the PLRA to Amended Pleadings
“The relevant time at which a person must be ‘a prisoner’
within the meaning of the PLRA in order for the Act’s restrictions
to apply is ‘the moment the plaintiff files his complaint.’” Jones
v. Cuomo, 2 F.4th 22, 26 (2d Cir. 2021) (alteration and citation
omitted)
(concluding
plaintiff
was
not
subject
to
PLRA’s
exhaustion requirement because he was detained under a civil sex
offender confinement statute when he filed his complaint).
The
Second Circuit has stated that “[t]he natural reading of the text
of the PLRA is that, to fall within the definition of ‘prisoner,’
the individual in question must be currently detained as a result
of an accusation, conviction, or sentence for a criminal offense.”
Id. at 25.
Here, neither party disputes that Plaintiff was a
prisoner for the purposes of the PLRA at the time he filed the
original complaint in this action, on December 28, 2017, (ECF No.
1, Compl.), and that Plaintiff was released from custody on August
29, 2019.
(ECF No. 188-33, Pl. Ex. 45, at 2.)
Therefore, he was
not incarcerated when he filed the operative complaint, the fifth
amended complaint, on August 5, 2020.
Compl.)
(ECF No. 151, Fifth Am.
Accordingly, Plaintiff was not a prisoner for purposes of
the PLRA when he filed the operative fifth amended complaint in
this action.
See Jones, 2 F.4th at 25.
The Second Circuit has not yet decided, however, whether the
PLRA’s exhaustion requirement applies when a plaintiff was a
35
prisoner at the time of the filing of the original complaint, but
is no longer a prisoner when an amended complaint is filed.
There
is a split among the circuit courts that have addressed the issue,
which the Supreme Court has not yet resolved.
Compare Garrett v.
Wexford Health, 938 F.3d 69 (3d Cir. 2019) (holding that the PLRA’s
exhaustion requirement did not apply to a formerly incarcerated
plaintiff’s amended complaint), cert. denied 140 S. Ct. 1611
(2020); Saddozai v. Davis, 35 F.4th 705 (9th Cir. 2022) (same);
with Harris v. Garner, 216 F.3d 970 (11th Cir. 2000) (en banc)
(holding that release from prison after a lawsuit was filed was
irrelevant to a different PLRA requirement, irrespective of a later
amended complaint); Smith v. Terry, 491 F. App’x 81 (11th Cir.
2012) (summary order) (applying the holding in Harris to the PLRA’s
exhaustion requirement); May v. Segovia, 929 F.3d 1223 (10th Cir.
2019) (holding that PLRA exhaustion applied to any claims brought
prior to a plaintiff’s release from prison).28
The Sixth Circuit has discussed the issue, but only as dicta. In Cox v.
Mayer, the Sixth Circuit held that lack of PLRA exhaustion barred claims filed
by a prisoner plaintiff (and dismissed by the district court for lack of
exhaustion) where the plaintiff moved for reconsideration of the district
court’s dismissal after he was released from prison. 332 F.3d 422 (6th Cir.
2003). The plaintiff, however, never filed an amended or supplemental complaint
after his release. The plaintiff argued before the Sixth Circuit that he could
cure his failure to exhaust by submitting a supplemental complaint under Rule
15(d), now that he was no longer incarcerated. Id. at 428. The Sixth Circuit
determined that the plaintiff had waived this argument by failing to move to
amend the pleadings before the district court, but surmised that even if
plaintiff had not waived the argument, Plaintiff’s proposed supplemental
complaint could not cure the failure to exhaust. Id. In Mattox v. Edelman,
the Sixth Circuit reexamined Cox and noted that its prior conclusion had been
non-binding dicta, but stated that the prior decision was “likely correct that
Rule 15(d) could not save an action” where PLRA exhaustion had not been met at
the time of filing. 851 F.3d 583, 593 (6th Cir. 2017). Nevertheless, the Sixth
28
36
In Jones v. Bock, the Supreme Court held that PLRA exhaustion
is an affirmative defense.
549 U.S. 199, 212 (2007).
Prior to
Jones, there was a circuit split as to whether prisoner plaintiffs
were required to plead exhaustion in a complaint or whether it
fell to defendants to present exhaustion as an affirmative defense.
Id. at 211.
The Supreme Court noted that (1) Federal Rule of Civil
Procedure 8(a) required only a “short and plain statement of the
claim”; (2) the PLRA was not the source of any claim; and (3) the
PLRA
discussed
pleading.
exhaustion
extensively
but
Id. at 212; Fed. R. Civ. P. 8(a).
did
not
discuss
The PLRA’s silence
was “strong evidence that the usual practice should be followed,”
and
the
“usual
practice”
affirmative defense.
was
to
consider
Jones, 549 U.S. at 212.
exhaustion
as
an
The Supreme Court
further explained that “courts should generally not depart from
the
usual
practice
under
perceived policy concerns.”
the
Federal
Id.
Rules
on
the
basis
of
The Supreme Court also rejected
the argument that the PLRA mandated a different pleading standard
due to its “screening” function.
Id. at 214.
That screening
function “[did] not—explicitly or implicitly—justify deviating
from the usual procedural practice beyond the departures specified
by the PLRA itself.”
Id.
Circuit determined that Cox was distinguishable from the facts in Mattox, and
thus its conclusion that Rule 15(d) “likely” could not correct a prior failure
to exhaust is also non-binding dicta.
37
Circuit courts have cited the Supreme Court’s reasoning in
Jones to hold that PLRA exhaustion does not apply where a plaintiff
who was a prisoner at the time of an original complaint files an
amended or supplemental complaint after release.
In Jackson v.
Fong, the Ninth Circuit addressed a lawsuit that a prisonerplaintiff initiated while in custody.
2017).
870 F.3d 928, 931 (9th Cir.
The prisoner-plaintiff first had submitted a claim to the
California
Department
of
Corrections
and
Rehabilitation’s
administrative review process, and appealed the denial of his
claim.
Id. at 931-32.
When his appeal was denied, the prisoner-
plaintiff sought review both through the administrative process
and in federal court: after appealing to the “third and final level
of [administrative] review,” but before receiving a decision, he
filed suit in federal court.
Id. at 932.
Before he received a
decision on his still-pending appeal, he was released from custody,
and his administrative appeal was closed due to his release.
He later filed a third amended complaint.
Id.
Id.
The district court
granted summary judgment to the defendants due to the prisonerplaintiff’s lack of PLRA exhaustion at the time of his original
complaint.
Id.
In Jackson, the Ninth Circuit determined that Jones had
instructed
that
pleading
rules
were
to
be
instituted
by
“established rulemaking procedures” rather than on “a case-by-case
basis by the courts.”
870 F.3d at 933-34 (citation omitted).
38
Accordingly, the Ninth Circuit looked to the Federal Rules of Civil
Procedure
for
guidance
on
whether
the
PLRA’s
exhaustion
requirement barred a formerly incarcerated plaintiff’s amended
complaint,
analyzing
the
amended
complaint
as
a
supplemental
complaint under Federal Rule of Civil Procedure 15(d).
Id. at
934.
15(d),
Because
a
supplemental
complaint,
under
Rule
“completely supersede[d] any earlier complaint, rendering the
original
complaint
non-existent
and
.
.
.
its
filing
date
irrelevant,” and because a supplemental complaint could “defeat an
affirmative
defense
applicable
to
an
earlier
complaint,”
a
prisoner who was in custody when he initiated an action but who
was released prior to filing an amended operative complaint was
“not a ‘prisoner’ subject to a PLRA exhaustion defense.”
Id. at
934, 937.
The Ninth Circuit recently reaffirmed Jackson’s holding in
Saddozai v. Davis.
35 F.4th 705 (9th Cir. 2022).
the
noted
Ninth
Circuit
that
“[b]oth
parties
In Saddozai,
agree[d]
that
Plaintiff had not exhausted his administrative remedies at the
time he filed his initial complaint in federal court.
The parties
also agree[d] that Plaintiff had fully exhausted by the time he
filed his third amended complaint,” or the operative complaint.
35 F.4th at 708.
The Ninth Circuit stated that it had made clear
in Jackson that the PLRA exhaustion requirement applied “based on
when a plaintiff files the operative complaint.”
39
Id.
It was
irrelevant
that
the
prisoner-plaintiff
in
Jackson
had
been
released from custody at the time of the operative complaint,
whereas the prisoner-plaintiff in Saddozai had not been.
Id.
The
cure for the initial lack of PLRA exhaustion in Jackson was not
due to plaintiff’s new “status as a non-prisoner,” but was “because
[he] filed a new operative complaint at a time when the PLRA
exhaustion requirement no longer applied to him.”
added).
In
Id. (emphasis
Saddozai, therefore, what mattered was that the
prisoner-plaintiff
had
added
facts
concerning
exhaustion in his operative complaint.
administrative
Id. at 708-09.
The Ninth
Circuit considered the operative complaint to be a supplemental
complaint under Rule 15 because it added facts relevant to PLRA
exhaustion.
Id. at 709.
Because a supplemental complaint “can
defeat an affirmative defense applicable to an earlier complaint,”
the initial lack of PLRA exhaustion—an affirmative defense—was
cured by the prisoner-plaintiff’s later, operative complaint.
Id.
(internal quotation marks omitted).
In Garrett v. Wexford Health, the Third Circuit similarly
held that the PLRA’s exhaustion requirement did not bar a former
prisoner’s third and fourth amended complaints, filed after his
release.
938 F.3d 69, 88 (3d Cir. 2019).
In Garrett, the original
complaint “acknowledged on the first page . . . that, although
[the
prisoner-plaintiff]
had
filed
grievances
claims, the grievance process was not complete.”
40
concerning
Id. at 76.
his
He
was later released from custody.
Id. at 78.
When he filed a third
amended complaint, post-release, the record showed that he had
fully exhausted at least three of his claims prior to his release.
Id. at 79.
After his third amended complaint was dismissed for
lack of PLRA exhaustion at the time of the original lawsuit, he
filed a fourth amended complaint, which was again dismissed for
failure to exhaust.
The
Third
Id. at 79-80.
Circuit
analyzed
the
amended
complaints
Federal Rules of Civil Procedure 15(a) and 15(d).29
under
Id. at 81.
Regarding Rule 15(a), the Third Circuit stated that “[i]n general,
an amended pleading supersedes the original pleading and renders
the original pleading a nullity” and that “where a party’s status
determines a statute’s applicability, it is his status at the time
of the amendment and not at the time of the original filing that
determines whether a statutory precondition to suit has been
satisfied.”30 Id. at 82. Regarding Rule 15(d), the Rule “expressly
provides” that a supplemental complaint may cure a deficient
pleading.
Id. at 83.
Because the plaintiff was no longer a
The third amended complaint included both “additional claims arising out of
the events described in the original complaint” that had not been alleged in
prior pleadings, and “new facts and claims that arose only after the filing of
the original complaint.”
Garrett, 938 F.3d at 81.
The Third Circuit thus
determined that the third amended complaint was both an amended complaint and
a supplemental complaint. Id.
29
The Third Circuit acknowledged, however, that even where an original pleading
has been superseded by an amended pleading, the original pleading maintains
some effect: “an amended pleading still may relate back to the filing date of
the original pleading for statute of limitations purposes.” Garrett, 938 F.3d
at 82 n.18.
30
41
prisoner at the time of filing of the third amended complaint, he
was no longer subject to the PLRA exhaustion requirement.
84.
Though
the
third
amended
complaint
in
Garrett
Id. at
did
not
explicitly allege that the plaintiff was not a prisoner at the
time of its filing, it was “obvious” from the face of the third
amended complaint that he was not.
Id. at 84 n.20.
Therefore,
the third amended complaint cured the lack of PLRA exhaustion at
the filing of the original complaint.
Id. at 84.
The Third
Circuit noted that Jones supported this holding because Jones
“teaches . . . that the usual procedural rules apply to PLRA cases
unless the PLRA specifies otherwise.”
Id. at 87.
Other circuit courts, however, reject the premise that a postrelease amended complaint cures a plaintiff’s prior failure to
exhaust his or her claims under the PLRA.
In Harris v. Garner,
the Eleventh Circuit held that the plain meaning of the word
“brought” in the PLRA meant “commenced”; a PLRA requirement that
no action for mental injury could be “brought” by a prisoner
without a prior showing of physical injury thus applied to a
lawsuit filed by a prisoner but decided after the prisoner’s
release.
216 F.3d 970 (11th Cir. 2000) (en banc); see 42 U.S.C.
§ 1997e(e).
Further, the Eleventh Circuit noted that if there
“were a conflict between [Rule 15] and the PLRA, the rule would
have to yield to the later-enacted statute.”
42
Id.
at 982.
Rule
15 “[could] not overrule a substantive requirement or restriction
contained in a statute.”
Id. at 983.
In a later unpublished opinion, Smith v. Terry, the Eleventh
Circuit
explicitly
extended
exhaustion requirement.
curiam).
Harris’s
reasoning
to
the
PLRA’s
491 F. App’x 81, 83 (11 Cir. 2012) (per
In Smith, a prisoner-plaintiff filed a complaint in
federal court after submitting a claim for administrative review,
but before receiving a decision on his appeal of the initial denial
of his claim.
Id. at 82.
He then filed a supplemental complaint
after receiving the denial of his appeal, and argued that his
supplemental complaint cured the original lack of PLRA exhaustion.
Id.
The Eleventh Circuit stated that the “only facts pertinent to
determining whether a prisoner has satisfied the PLRA’s exhaustion
requirement are those that existed when he filed his original
complaint,” and thus any supplemental complaint could not cure a
PLRA exhaustion defect.
Id. at 83.
In May v. Segovia, the Tenth Circuit similarly held that a
plaintiff’s failure to exhaust claims under the PLRA barred his
claims despite plaintiff’s filing of a second amended complaint
after his release from prison.
929 F.3d 1223 (10th Cir. 2019).
In May, the prisoner-plaintiff filed a complaint in federal court,
and then moved for leave to file a second amended complaint after
the parties moved for summary judgment.
Id. at 1225-26.
The
district court granted the motion for leave to amend, but not until
43
six months had passed, during which time the plaintiff had been
released from custody.
Id. at 1226.
The claims in the second
amended complaint were later dismissed, inter alia, for lack of
PLRA exhaustion at the time of the initial complaint.
Id.
The Tenth Circuit reasoned that an amended complaint does not
render an original complaint inoperative for all purposes: an
“amended complaint, as the operative complaint, supersedes the
original complaint’s allegations but not its timing.” Id. at 1229.
Because exhaustion is an affirmative defense and not a pleading
requirement, the “question under the PLRA [was] the timing of the
claim alleged, not the sufficiency of the allegations.”
Id.
Therefore, the Tenth Circuit held that PLRA exhaustion could not
be cured by an amended complaint: later, superseding allegations
would not change the fact that a plaintiff was a prisoner at the
time he first “brought” an unexhausted claim.
Id.
As noted above, the Second Circuit has not decided whether a
lack of PLRA exhaustion bars an amended or supplemental complaint
filed by a non-prisoner plaintiff where the original complaint was
filed while the plaintiff was in custody.
The few courts in this
Circuit to address the issue have yielded opposite conclusions.31
Compare Ojo v. United States, No. 15-CV-6089 (ARR), 2018 WL
This Court recently found that a plaintiff who was a prisoner at the time he
filed a complaint was subject to PLRA exhaustion despite his later release from
custody. See Johnson v. Santiago, No. 20-CV-6345 (KAM), 2022 WL 3643591, at *5
(E.D.N.Y. Aug. 24, 2022). Because the plaintiff in Johnson did not file an
amended complaint, however, this Court did not address the issue presented here.
31
44
3863441, at *8 n.5 (E.D.N.Y. Aug. 14, 2018) (rejecting defendants’
argument about plaintiff’s “end run” around the PLRA and noting
that
“federal
courts
have
found
that
the
PLRA’s
exhaustion
requirement does not apply when a plaintiff files suit while
incarcerated but later amends the complaint after release”); with
Makell v. Cnty. of Nassau, No. 19-CV-6993 (BMC), 2022 WL 1205096,
at *3 (E.D.N.Y. Apr. 22, 2022) (reasoning that amended complaints
override original complaints “only regarding the determination of
whether the amended complaint states a plausible claim” and that
an original complaint “continues to have force and effect for all
other purposes”).
This Court analyzes the application of the PLRA’s exhaustion
requirement following the Supreme Court’s instructions in Jones
that “courts should generally not depart from the usual practice
under the Federal Rules on the basis of perceived policy concerns
[in the PLRA].”
549 U.S. at 212.
The PLRA “deal[s] extensively
with the subject of exhaustion” but, similarly to Jones, “is
silent” on the issue of whether an action is “brought” by a
plaintiff at the time of the filing of the original complaint or
at the time of the filing of the operative complaint.
1997e(a).
Id.; §
As in Jones, therefore, although there is “no question”
that PLRA exhaustion is generally mandatory, the PLRA exhaustion
requirement does not override the “usual practice” under Federal
Rule of Civil Procedure 15, as discussed below.
45
549 U.S. at 211-
12 (finding that where the PLRA is silent on an issue, the “usual
practice should be followed”).
Federal Rule of Civil Procedure 15 allows parties to amend or
supplement their pleadings, including complaints.
See Fed. R.
Civ.
amend
their
The
“usual
Pro.
15.
complaints,
Rule
under
15(a)
certain
allows
plaintiffs
conditions.
See
to
id.
practice” for such amended complaints is that they render null any
prior complaint.
See Pettaway v. Nat’l Recovery Sols., LLC, 955
F.3d 299, 303 (2d Cir. 2020) (“An amended pleading ordinarily
supersedes the original and renders it of no legal effect.”); see
also Unclaimed Prop. Recovery Serv., Inc. v. Kaplan, 734 F.3d 142,
145 (2d Cir. 2013) (noting that defendants “marshal no legal
authority to support the proposition that the author of a complaint
may apply [substantive copyright] law to interfere with the course
of litigation by allowing the filing of a complaint but disallowing
the creation and filing of an amended version of that complaint”).
Rule 15(d), by contrast, allows plaintiffs to file a supplemental
complaint “setting out any transaction, occurrence, or event that
happened after the date of the pleading to be supplemented.”
R.
Civ.
Pro.
supplemental
15(d).
complaint
Courts
“can
have
noted
defeat
an
applicable to an earlier complaint.”
repeatedly
affirmative
Fed.
that
a
defense
Saddozai, 35 F.4th at 709
(citing Jackson, 870 F.3d at 934); cf. Mathews v. Diaz, 426 U.S.
67, 75 (1976) (holding that a supplemental complaint cured a
46
failure to exhaust under 42 U.S.C. § 405(g)); Black v. Sec’y of
Health & Hum. Servs., 93 F.3d 781, 790 (Fed. Cir. 1996) (“[D]efects
in a plaintiff's case—even jurisdictional defects—can be cured
while the case is pending if the plaintiff obtains leave to file
a supplemental pleading under Rule 15(d) reciting post-filing
events that have remedied the defect.”).
It is true that, as the Eleventh Circuit stated in Harris,
Rule
15
“[could]
not
override
a
restriction contained in a statute.”
substantive
requirement
216 F.3d at 983.
or
As noted
above, however, the PLRA does not contain substantive restrictions
on the filing of amended or supplemental complaints under Rule 15.
Section 1997e(a) states that “no action shall be brought” by
prisoners, which some courts have found overrides the possibility
of former prisoners filing amended or supplemental pleadings under
Rule 15.
See Makell, 2022 WL 1205096, at *4.
But the Supreme
Court stated in Jones that the PLRA’s phrasing, “no action shall
be brought,” is “boilerplate language” that should be interpreted
as applying to claims, not entire actions.
549 U.S. at 220 (noting
that statutes of limitations are often introduced with similar
phrasing but bar only individual claims, not entire complaints).
In Jones, such boilerplate language meant that an entire action
was not barred by the lack of PLRA exhaustion (which would depart
from usual statutory interpretation); rather, individual claims
might be.
Id.
Given that the boilerplate language “no action
47
shall be brought” did not require “depart[ing] from usual practice”
in Jones, the same language does not require a departure from Rule
15 here.
Id.
Here, the Court considers Sanchez’s fifth amended complaint
to be an amended complaint under Rule 15(a), as it replaced
defendant “John Doe 3” with Defendant Ryan.32
21, 126, 151.)
(See ECF Nos. 1, 15,
As in Saddozai, the Court also considers the fifth
amended complaint to be a supplemental complaint under Federal
Rule of Civil Procedure 15(d) because it added facts “that happened
after the date of the pleading to be supplemented.”
P. 15(d); see Saddozai, 35 F.4th at 709.
Fed. R. Civ.
The fifth amended
complaint alleged that Plaintiff “is presently employed as a
construction
worker,”
thus
adding
facts
relevant
to
PLRA
exhaustion that occurred after the date of the original complaint.
See Garrett, 938 F.3d at 84 (finding it “obvious” from the face of
the operative amended and supplemental complaint that plaintiff
was a non-prisoner and thus the lack of PLRA exhaustion at the
time of the initial complaint was cured).
As stated above, a supplemental complaint can cure defects
from a prior complaint.
See Saddozai, 35 F.4th at 709; Travelers
Ins. Co. v. 633 Third Assoc., 973 F.2d 82, 87–88 (2d Cir. 1992)
(finding that district court could grant leave to amend even though
Prior to the fifth amended complaint, Plaintiff identified Defendant Ryan as
“John Doe 3” through photographs provided by Nassau County Defendants. (See
07/08/2020 Order; ECF No. 150.)
32
48
original pleading was defective for purposes of standing); see
also Wright, Miller, & Kane, Federal Practice and Procedure: Civil
3d § 1507, pg. 273 ([E]ven though [Rule 15(d)] is phrased in terms
of correcting a deficient statement of ‘claim’ or a ‘defense,’ a
lack of subject-matter jurisdiction should be treated like any
other
defect
for
purposes
of
defining
the
proper
scope
of
supplemental pleading.”).
Indeed, the Supreme Court addressed a similar issue in Mathews
v. Diaz, wherein a plaintiff had failed to exhaust procedures for
his Medicare application, as required by 42 U.S.C. § 405(g), until
after an amended complaint had been filed joining him to an action.
426 U.S. at 71-72.
In holding that the initial failure to exhaust
could be cured by a supplemental pleading, the Supreme Court
stated:
Although 42 U.S.C. § 405(g) establishes filing of an
application as a nonwaivable condition of jurisdiction,
[the plaintiff] satisfied this condition while the case
was pending in the District Court. A supplemental
complaint in the District Court would have eliminated
this jurisdictional issue; since the record discloses,
both
by
affidavit
and
stipulation,
that
the
jurisdictional condition was satisfied, it is not too
late, even now, to supplement the complaint to allege
this fact.
Id. at 75; see also Rockwell Int’l Corp. v. United States, 549
U.S. 457, 473-74 (2007) (“[W]hen a plaintiff files a complaint in
federal court and then voluntarily amends the complaint, courts
look to the amended complaint to determine jurisdiction.”).
49
In May, the Tenth Circuit stated that Diaz’s holding does not
apply in the context of PLRA exhaustion.
929 F.3d at 1229.
The
Tenth Circuit noted that the exhaustion requirement in 42 U.S.C.
§
405(g),
required,
“like
in
all
Diaz,
jurisdictional
a
“pleading
exhaustion
requirement
requirements,”
that
[could]
satisfied only by changing the allegations in the complaint.”
be
Id.
Because PLRA exhaustion is an affirmative defense, and therefore
is not a pleading requirement that could be satisfied by changing
allegations in a complaint, the Tenth Circuit concluded that Diaz
does not support the argument that a supplemental complaint can
cure PLRA exhaustion.33
Id.
This Court respectfully disagrees.
Several months before
Diaz, the Supreme Court stated in Mathews v. Eldridge that § 405(g)
exhaustion contained a two-part analysis.
424 U.S. 319 (1976).
The Supreme Court held in Eldridge that § 405(g) “consists of two
elements, only one of which is purely ‘jurisdictional’ in the sense
that it cannot be ‘waived’”: the non-waivable, jurisdictional
element was the requirement that a “claim for benefits shall have
been
presented
to
the
Secretary
[of
Health,
Education
and
Welfare],” whereas the “waivable element is the requirement that
the administrative remedies prescribed by the Secretary [for such
a claim] be exhausted.”
Eldridge, 424 U.S. at 328.
In other
The Ninth Circuit and Third Circuit, in contrast, cite Diaz in support of
their holdings that a supplemental pleading can cure PLRA exhaustion.
See
Jackson, 870 F.3d at 934; Garrett, 938 F.3d at 83.
33
50
words, it was a jurisdictional requirement that a plaintiff file
a claim before the agency before initiating a lawsuit, but it was
a non-jurisdictional requirement that the plaintiff pursue all
remedies for that claim before the lawsuit.
Further, in Diaz,
when the Supreme Court discussed how a supplemental complaint could
cure a failure to exhaust under § 405(g), it discussed both the
non-waivable, jurisdictional element of the statute (filing a
claim for benefits with the Secretary) and the waivable, nonjurisdictional element (exhaustion of that claim).
426 U.S. at
75-76.
In May, as noted above, the Tenth Circuit distinguished PLRA
exhaustion from § 405(g) exhaustion by stating that the latter was
jurisdictional and could be cured by changing allegations in a
supplemental complaint, whereas a lack of PLRA exhaustion was an
affirmative defense and thus could not be so cured.
1229.
929 F.3d at
But Eldridge and Diaz both confirm that § 405(g) exhaustion
includes a waivable, non-jurisdictional element; indeed, in Diaz,
the Supreme Court used the word “allege” and “allegations” when
referencing both the non-waivable, jurisdictional element and the
waivable, non-jurisdictional element of the § 405(g) exhaustion
analysis.
Compare Diaz, 426 U.S. at 75 (finding that because “the
jurisdictional condition [of filing a claim] was satisfied, it is
not too late . . . to supplement the complaint to allege [that]
fact,”),
with
Diaz,
426
U.S.
51
at
76
(noting
that
certain
“allegations did not satisfy the exhaustion requirements of §
405(g).”).
Accordingly, the distinction created by the Tenth
Circuit in May—that Diaz establishes that a jurisdictional defect
(such
as
lack
of
§
405(g)
exhaustion)
may
be
cured
by
a
supplemental complaint because it is based on the initial pleading,
but a non-jurisdictional affirmative defense (such as lack of PLRA
exhaustion) may not—loses meaning.
Further, courts do recognize the allegations in amended and
supplemental
complaints
for
considering PLRA exhaustion.
allegations
in
an
at
least
limited
purposes
when
Otherwise, a plaintiff could not use
amended
complaint
to
establish
that
administrative remedies were “unavailable,” the narrow exception
to PLRA exhaustion recognized by the Supreme Court.
Blake, 578 U.S. 632, 648 (2016).
See Ross v.
It is true that plaintiffs need
not plead exhaustion in a complaint and that defendants must assert
PLRA exhaustion as an affirmative defense.
216.
Jones, 549 U.S. at
But courts regularly rely on the facts asserted in amended
and supplemental complaints to determine if PLRA exhaustion has
been met, once the affirmative defense is raised.
See, e.g.,
Rucker v. Giffen, 997 F.3d 88, 90, 93 (2d Cir. 2021) (concluding
that
exhaustion
was
“unavailable”
allegations in amended complaint).
to
plaintiff
based
on
Indeed, albeit in dicta, the
Supreme Court has noted that a defect in PLRA exhaustion in an
original
complaint
“was
arguably
52
cured”
by
later
amended
complaints—supporting the conclusion that courts may assess PLRA
exhaustion as of the date of the filing of an operative amended
complaint.
See Ramirez v. Collier, 142 S. Ct. 1264, 1276 (2022)
(citing Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010)
(“As a general rule, when a plaintiff files an amended complaint,
the amended complaint supercedes[sic] the original, the latter
being treated thereafter as non-existent.”)).
Accordingly,
this
Court
concludes
that
barred by the PLRA exhaustion requirement.
Plaintiff
is
not
The Second Circuit
recognizes that plaintiffs who file actions “after release from
confinement are no longer ‘prisoners’ for purposes of § 1997e(a)
and . . . need not satisfy the exhaustion requirements of [that]
provision.”
Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999).
Importantly, it is not Plaintiff’s “status as a non-prisoner that
cure[s] the initial lack of exhaustion.”
708.
Saddozai, 35 F.4th at
Instead, it is because Plaintiff has “filed a new operative
complaint at a time when the PLRA exhaustion requirement no longer
applie[s] to him”—Plaintiff was released from custody on August
29, 2017, prior to filing the operative fifth amended complaint.
(ECF No. 188-33, Pl. Ex. 45, at 2; ECF No. 151, Fifth Am. Compl.)
Defendants argue that the PLRA bars Plaintiff’s action, but
only briefly address whether PLRA exhaustion may be assessed at
the time of Plaintiff’s filing of an operative amended complaint.
Nassau County Defendants contend that an amended complaint cannot
53
cure a defect in exhaustion, but do not cite any controlling legal
authority in support of this assertion.
County Defs. Reply Mem. of Law, at 1.)
Berry
v.
Kerik,
366
F.3d
85
(2d
(ECF No. 215-15, Nassau
Defendant Ryan argues that
Cir.
2004),
precludes
the
conclusion that PLRA exhaustion may be assessed relative to an
amended complaint.
at 7.)
(ECF No. 216-4, Def. Ryan Reply Mem. of Law,
He argues that the PLRA exhaustion analysis in Berry turned
“on whether a plaintiff [was] a confined prisoner at the time he
files suit.”
(Id.)
Berry, however, is distinguishable.
The
alleged mistreatment that the Berry plaintiff suffered occurred in
1998, and he was released from custody in 1999.
366 F.3d at 86—
87. After his release, however, he returned to custody after being
arrested for larceny.
Id. at 87.
While incarcerated on the
subsequent larceny charge, he filed two § 1983 lawsuits concerning
mistreatment that allegedly occurred during his prior term of
custody.
Id.
The Second Circuit stated that “[b]ecause [the
plaintiff] was a confined prisoner at the time he filed his
lawsuits,
[S]ection
Significantly,
plaintiff
in
an
1997e(a)
amended
Berry.
In
is
applicable.”
complaint
contrast,
was
never
although
Id.
at
87.
filed
by
the
Plaintiff
was
incarcerated at the time of the original complaint, he was not
incarcerated when he filed the operative fifth amended complaint.
Accordingly, Berry does not control.
54
B. Availability of PLRA Exhaustion
Even if the Court assumes that PLRA exhaustion can be assessed
only as of the filing date of the original complaint, however,
lack of exhaustion could not be decided on summary judgment in
this
case.
“Under
the
PLRA,
a
prisoner
‘available’ administrative remedies.”
need
exhaust
only
Ross, 578 U.S. at 638.
The
Supreme Court has established “three kinds of circumstances in
which an administrative remedy, although officially on the books,
is not capable of use to obtain relief,” and thus is unavailable
to
exhaust.
Id.
at
643.
An
administrative
remedy
may
be
unavailable when (1) “it operates as a simple dead end—with
officers unable or consistently unwilling to provide any relief to
aggrieved
inmates”;
(2)
it
is
“so
opaque
that
it
becomes,
practically speaking, incapable of use”; or (3) “when prison
administrators thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimidation.”
Lucente , 980 F.at 311 (quoting Williams v. Priatno, 829 F.3d 118,
123-24 (2d Cir. 2016) (quoting Ross, 578 U.S. at 643-44)).
Once
existence
plaintiff
a
defendant
and
applicability
bears
unavailability.
(2d Cir. 2022).
meets
the
the
“burden
of
the
burden
of
of
establishing
grievance
policy,”
establishing
de
the
the
facto
Saeli v. Chautauqua Cnty., NY, 36 F.4th 445, 453
Availability of administrative procedures is
determined objectively: the Court asks if “a similarly situated
55
individual
of
available.”
ordinary
firmness
[would]
have
deemed
them
Lucente, 980 F.3d at 311–12 (quoting Hemphill v. New
York, 380 F.3d 680, 688 (2d Cir. 2004), abrogated on other grounds
by Ross, 578 U.S. at 637, 643)).
Often,
assessing
however,
the
exhaustion.
courts
availability
must
of
analyze
remedies
disputed
for
facts
purposes
of
when
PLRA
Every circuit to consider the issue, including the
Second Circuit, has held that judges may address factual disputes
relevant to PLRA exhaustion without the participation of a jury.
See Messa v. Goord, 652 F.3d 305, 3009 (2d Cir. 2011) (per curiam);
Lee v. Willey, 789 F.3d 673, 678 (6th Cir. 2015); Small v. Camden
Cnty., 728 F.3d 265, 271 (3d Cir. 2013); Dillon v. Rogers, 596
F.3d 260, 272 (5th Cir. 2010); Pavey v. Conley, 544 F.3d 739, 742
(7th Cir. 2008); Bryant v. Rich, 530 F.3d 1368, 1373–77 (11th Cir.
2008); Wyatt v. Terhune, 315 F.3d 1108, 1119–20 (9th Cir. 2003),
overruled on other grounds by Albino v. Baca, 747 F.3d 1162, 1166,
1170–71 (9th Cir. 2014); see also Carbajal v. McCann, 808 F. App'x
620, 639 (10th Cir. 2020) (summary order).
Although “a § 1983
suit seeking legal relief is an action at law within the meaning
of the Seventh Amendment,” City of Monterey v. Del Monte Dunes at
Monterey, Ltd., 526 U.S. 687, 709, (1999), and thus the Seventh
Amendment right to a jury trial generally applies, “not every
factual issue that arises in the course of a litigation is triable
to a jury as a matter of right,” especially those regarding
56
“[m]atters of judicial administration.”
Willey, 789 F.3d at 678
(internal quotation marks omitted).
The majority of circuit courts to address the issue, however,
have held that district courts may only decide factual disputes
relevant to PLRA exhaustion “that are not bound up with the merits
of the underlying dispute.” Messa, 652 F.3d at 309 (“[T]he factual
disputes relating to exhaustion are not intertwined with the merits
of [plaintiff’s] underlying excessive force claim.”); Willey, 789
F.3d at 678 n.3 (noting that “the factual disputes concerning
exhaustion were not intertwined with the merits of Lee’s underlying
Eighth Amendment claim”); Small, 728 F.3d at 270 (“[T]he Seventh
Amendment is not implicated as long as the facts are not bound up
with the merits of the underlying dispute.”); Dillon, 596 F.3d at
272 n.2 (“We do not determine today who should serve as factfinder
when facts concerning exhaustion also go to the merits of a
prisoner’s claim.”).
Here, the factual disputes relevant to PLRA exhaustion go to
and are inextricably entangled with the merits of Plaintiff’s
underlying claims.
As noted above, the parties do not dispute (1)
that the NCCC provides an administrative remedy through its “Inmate
Grievance Program,” which requires inmates to file a grievance
within five days; or (2) that Plaintiff failed to do so within
five days of the alleged assault.
[ECF No. 188-7, Pl. Ex. 10 at
9; ECF Nos. 215-4, Nassau County Defs Mem. of Law at 11-12; 21557
11, Pl. Mem. in Opp. at 16-17; 216-2 Def Ryan Mem. of Law at 16.]
The parties dispute, however,
whether the
ability to file a
grievance was “available” to Plaintiff.
Plaintiff argues that the grievance process was unavailable
because of intimidation by prison staff.
See Lucente, 980 F.3d at
312 (“[W]e have noted that ‘threats or other intimidation by prison
officials may well deter a prisoner of ordinary firmness from
filing an internal grievance, but not from appealing directly to
individuals in positions of greater authority within the prison
system, or to external structures of authority such as state or
federal courts’) (quoting Hemphill, 380 F.3d at 688)).
He asserts
that (1) he had filed and settled a prior lawsuit against NCCC
corrections officers based on a 2007 incident involving excessive
force against a detainee; (2) partially in retaliation, Defendant
Ryan loudly called him a ‘snitch’ several times within the hearing
of other inmates; (3) shortly after being called a snitch, he was
slashed across the face and beaten by other inmates in front of
Defendants Hollingshead and James, who did not intervene; (4) he
was later told by different corrections officers that “things come
full circle” and “you should learn to keep your mouth shut”; (5)
he was interviewed by law enforcement about the assault in a room
with windows where many other inmates could see him, and he advised
the law enforcement officers of his concerns about safety; and (6)
he filed grievances and a lawsuit upon his transfer to a different
58
facility, where he did not fear repercussions.
(ECF No. 215-11,
Pl. Mem. in Opp. at 16-18; ECF No. 188, Millson Declaration, at ¶
52; Exhibit 63, Audio Recording: May 11, 2018 Interview of Pierre
Sanchez by Internal Affairs Unit (“Ex. E”) at 02:35-02:45); ECF
No. 40, Ex. 51 at 214:18-215:10.)
Defendants agree that Plaintiff settled a lawsuit with NCCC
staff concerning a 2007 incident, but dispute the other facts that
Plaintiff asserts in support of his argument that administrative
remedies were unavailable due to intimidation by prison officials.
(ECF No. 215-4, Nassau County Defs Reply at 1-4; ECF No. 196,
County Defs. Reply 56.1 at ¶¶ 282, 290-293, 353-54, 384; ECF No.
216-2, Def Ryan Mem. of Law at 16-20; ECF No. 194, Def. Ryan Reply
56.1 at ¶¶ 196-202.) Nassau County Defendants argue that Plaintiff
has changed his assertions surrounding the alleged assault, and
that he initially “told investigators that he did not want to
pursue the matter,” meaning that administrative remedies were
available to him.
2.)
Defendant
“generalized
(ECF No. 215-4, Nassau County Defs. Reply at
Ryan
fear
of
contends
that
retaliation,”
Plaintiff
asserts
which
insufficient
is
establish that administrative remedies were unavailable.
only
a
to
(ECF No.
216-2, Def Ryan Mem. of Law at 16-20).
The above disputed facts—including whether Defendant Ryan
twice called Plaintiff a ‘snitch’ within the hearing of other
detainees, and whether Defendants Hollingsworth and James ignored
59
Plaintiff during the alleged assault—go straight to the merits of
Plaintiff’s
Defendants
underlying
failure
Hollingsworth,
James,
to
protect
and
Ryan.
claims
Because
against
of
this
“peculiarity . . . [of] overlap between the factual issues relating
to exhaustion and those relating to the merits” in this case, the
Seventh Amendment may be implicated.
Pavey, 544 F.3d at 741-42.
In similar circumstances, courts in this Circuit have determined
that
“a
jury
should
find
the
facts
that
will
determine
the
exhaustion issue” where “resolution of the exhaustion question at
the summary judgment stage would run perilously close to resolving
disputed issues of material facts on the plaintiff’s substantive
. . . claim.”34
Daum v. Doe, No. 13-CV-88(LV), 2016 WL 3411558,
at *2 (W.D.N.Y. June 22, 2016) (adopting report and recommendation)
(internal
quotation
marks
omitted);
see
also
Stephens
v.
Venetozzi, No. 13-CV-5779 (RA), 2020 WL 7629124, at *3-4 (S.D.N.Y.
Dec.
21,
2020)
(concluding
that
where
“the
factual
issues
underlying the availability of administrative remedies are plainly
In similar circumstances in Pavey, the Seventh Circuit determined that “any
finding that the judge makes, relating to exhaustion, that might affect the
merits may be reexamined by the jury if—and only after—the prisoner overcomes
the exhaustion defense and the case proceeds to the merits.” 544 F.3d at 742.
The Seventh Circuit further stated that the appropriate sequence would be for
the district court to conduct a hearing on exhaustion; where “the failure to
exhaust was innocent” because of the unavailability of administrative remedies,
the plaintiff “must be given another chance to exhaust.” Id. In this case,
however, the Seventh Circuit’s approach would lead to an odd and contradictory
result: Plaintiff is no longer in custody, and thus cannot now exhaust his
claim, even if the Court finds that lack of PLRA exhaustion is excused due to
the unavailability of administrative remedies. Accordingly, the Court follows
the lead of other district courts in the Second Circuit and determines that
material disputed facts relevant to the availability of PLRA exhaustion must be
decided by a jury.
34
60
intertwined with Plaintiff’s substantive claim . . . the Court
will leave it to the jury to determine the factual issues.”);
Rickett v. Orsino, No. 10-CV-5152 (CS)(PED), 2013 WL 1176059, at
*23 (S.D.N.Y. Feb. 20, 2013), report and recommendation adopted,
2013 WL 1155354 (S.D.N.Y. Mar. 21, 2013) (concluding that “the
exhaustion-related factual disputes are not amenable to pre-trial
resolution because the facts pertaining to Plaintiff’s exhaustion
excuses are intertwined with the merits of his underlying claims”).
Accordingly,
concerning
the
the
Court
concludes
availability
of
that
the
administrative
disputed
facts
remedies
for
purposes of PLRA exhaustion cannot be decided on summary judgment.
II.
Section 1983
Section 1983 provides that:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
. . . subjects, or causes to be subjected, any citizen
of the United States . . . to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured . . . .
42 U.S.C. § 1983.
Section 1983 “is not itself a source of
substantive rights, but a method for vindicating federal rights
elsewhere
conferred
by
those
parts
of
the
United
Constitution and federal statutes that it describes.”
McCollan, 443 U.S. 137, 144 n.3 (1979).
165 F.3d 137, 142 (2d Cir. 1999).
Baker v.
See also Thomas v. Roach,
To maintain a Section 1983
claim, a plaintiff must allege two elements.
61
States
First, “the conduct
complained of must have been committed by a person acting under
color of state law.”
Pitchell v. Callan, 13 F.3d 545, 547 (2d
Cir.
omitted).
1994)
(citation
It
is
undisputed
Defendants were acting under color of state law.
that
the
(See, e.g.,
County Defs. 56.1 at ¶¶ 8-11; Pl. Resp. County Defs. 56.1 at ¶¶ 811.)
Second, “the conduct complained of must have deprived a
person
of
rights,
privileges,
or
immunities
Constitution or laws of the United States.”
Id.
secured
by
the
See also McCugan
v. Aldana-Bernier, 752 F.3d 224, 229 (2d Cir. 2014).
To prevail on a Section 1983 claim against an individual
defendant, a plaintiff also must overcome the doctrine of qualified
immunity, which protects government officials from civil damages
liability “insofar as their conduct does not violate clearly
established
statutory
or
constitutional
reasonable person would have known.”
rights
of
which
a
Pearson v. Callahan, 555
U.S. 223, 231 (2009) (citation omitted).
Courts assess qualified
immunity through a two-part inquiry: (1) “whether the facts, viewed
in
the
light
most
favorable
to
the
plaintiff,
show
that
[a
government] official’s conduct violated a constitutional right”;
and (2) “whether the right at issue was clearly established at the
time of the defendant’s alleged misconduct.”
Doninger v. Niehoff,
642 F.3d 334, 345 (2d Cir. 2011) (alterations, citations, and
internal
quotation
marks
omitted).
“A
right
is
‘clearly
established’ when the contours of the right are sufficiently clear
62
that a reasonable official would understand that what he is doing
violates that right.”
Reyes v. Fischer, 934 F.3d 97, 103 (2d Cir.
2019)
citation,
(alterations,
and
internal
quotation
marks
omitted). The Supreme Court has clarified that courts may exercise
discretion in deciding the order in which to conduct the qualified
immunity
analysis.
Id.
(citing
Pearson,
555
U.S.
at
241).
Further, where “there remains a genuine factual dispute, the
existence of qualified immunity cannot be determined until the
factual dispute is resolved.”
174 (2d Cir. 2020).
Franco v. Gunsalus, 972 F.3d 170,
“At the summary judgment stage, a claim may
be dismissed on qualified immunity grounds only when a court finds
that an official has met his or her burden of demonstrating that
no rational jury could find these two prongs to be satisfied.”
Liverpool v. Davis, 442 F. Supp. 3d 714, 733 (S.D.N.Y. 2020)
(citing Coolick v. Hughes, 699 F.3d 211, 219 (2d Cir. 2012)).
A. Failure to Protect35
“Prison officials have a duty . . . to protect prisoners from
violence at the hands of other prisoners.”
U.S.
825,
omitted).
833
(1994)
Not
(internal
every
injury,
Farmer v. Brennan, 511
quotation
however,
marks
and
citation
“translates
into
This Court separately analyzes Plaintiff’s failure to protect and failure to
intervene claims, although the parties do not do so. The claims are distinct,
even though both claims require a showing that an officer “acted with
“deliberate indifference to a substantial risk of serious harm” to an inmate or
detainee. Compare McDaniel v. City of New York, No. 19-CV-8735(KPF)(RWL), 2022
WL 421122, at *10 (S.D.N.Y. Feb. 11, 2022), with House, 2020 WL 6891830 at 11.
35
63
constitutional liability for prison officials responsible for the
victim’s safety.”
Id. at 834.
In Darnell v. Pineiro, the Second
Circuit held that pretrial detainees’ “claims of unconstitutional
conditions of confinement are governed by the Due Process Clause
of the Fourteenth Amendment, rather than the Cruel and Unusual
Punishments Clause of the Eight Amendment,” which is the standard
for convicted prisoners.
849 F.3d 17, 29 (2d Cir. 2017).
Because
pretrial detainees have not been convicted of a crime, they “may
not be punished in any manner—neither cruelly and unusually nor
otherwise.”
Id. (internal quotations and citations omitted); see
also House v. City of New York, No. 18-CV-6693 (PAE)(KNF), 2020 WL
6891830, at *11 (S.D.N.Y. Nov. 24, 2020).
pretrial
detainee
from
assault
rises
Failing to protect a
to
the
level
of
a
constitutional violation of the Fourteenth Amendment only where an
official acted with “deliberate indifference to a substantial risk
of serious harm” to the detainee.
Id. at 836 (internal quotation
marks omitted) (citations omitted).
To establish deliberate indifference for a failure to protect
claim, a plaintiff must satisfy a “two-prong test comprised of
both objective and subjective standards.”
McDaniel v. City of New
York, No. 19-CV-8735 (KPF)(RWL), 2022 WL 421122, at *6 (S.D.N.Y.
Feb. 11, 2022) (adopting report and recommendation).
For the
objective prong, the plaintiff must show that “the challenged
conditions
were
sufficiently
serious
64
to
constitute
objective
deprivations of the right to due process.”
Darnell, 849 F.3d at
29; see also Fredricks v. Parrilla, No. 20-CV-5738 (AT) (JLC),
2022
WL
3053654,
at
*7
(S.D.N.Y.
Aug.
3,
2022),
report
and
recommendation adopted 2022 WL 4227077, at *1 (S.D.N.Y. Sept. 13,
2022). For the subjective prong, the plaintiff must also establish
that the “officer acted with at least deliberate indifference to
the challenged conditions,” which, in the context of the Fourteenth
Amendment, means that he or she “acted intentionally to impose the
alleged condition, or recklessly failed to act with reasonable
care to mitigate the risk that the condition posed to the pretrial
detainee even though the defendant-official knew, or should have
known, that the condition posed an excessive risk to health or
safety.”
Darnell, 849 F.3d at 35; see also Vega v. Semple, 963
F.3d 259, 273–74 (2d Cir. 2020).
i.
Defendant Ryan
Defendant Ryan primarily argues that Plaintiff is unable to
establish a failure to protect claim because Plaintiff’s alleged
interactions with Ryan never happened and Defendant Ryan never
called Plaintiff a snitch.
(ECF No. 216-2, Def Ryan Mem. of Law
at 10-12.)
These assertions, however, are disputed material facts that
cannot be resolved by the Court at summary judgment.
Defendant
Ryan’s and Plaintiff’s deposition testimony are directly at odds
as to whether Defendant Ryan encountered Plaintiff or called him
65
a snitch.
(Compare ECF No. 188-40, Ex. 51 at 110:6-111:4, 114:16-
114:23, with ECF No. 188-48, Ex. 60 at 134:12-134:23.)
Defendant
Ryan contends that, regardless of that central factual dispute,
Plaintiff made “only vague and conclusory statements and fails to
sufficiently support or corroborate” his claims.
Def Ryan Mem. of Law at 12.)
(ECF No. 216-2,
Plaintiff’s deposition testimony,
however, was neither vague nor conclusory.
He testified to the
alleged incident in detail, as shown by the following excerpt:
When he was walking past my cell, I asked him if I could
get on the food cart when it was possible. He said, let
me go check it out. Then he went and finished his round.
Then I didn’t see him for a while. When he did his next
round . . . when he walked past my cell, I wasn’t paying
attention to outside my cell at that point . . . I didn't
hear the first thing he said, but he blurted out snitch
at the end of when he was walking past my cell. There
was one other time that -- and this was a couple of weeks
after that, but there was another time that he was
standing by the television, and he walked by . . . and
he looked right at me in front of a couple of inmates
standing around the television, and he looked right at
me and called me a snitch and kept moving. Everybody
looked at me when he called me a snitch.
(ECF No. 188-40, Ex. 51 at 114:11-115:9.)
Plaintiff also
testified that after Defendant Ryan called him a snitch,
“people start[ed] filtering away from me.
It’s not, like, a
mass incident, it’s like they ran away from me, but as I’m
standing there, I could feel people, like, moving away from
me.”
(ECF No. 188-47, Ex. 59 at 114:13-114:24.)
Such
deposition
testimony
is
admissible
for
purposes
of
summary judgment under Federal Rule of Civil Procedure 56(c).
66
Further, the testimony is supported by Plaintiff’s statements to
an IAU investigator in the May 2018 IAU interview, where he stated,
inter alia, that “[the assault] happened because of a situation
that happened in front of other inmates with me and another guard
. . . [corrections officers] that were on during the day the
slashing happened, were referring to me as a snitch.”
00:46-1:05.)
(Ex. 63 at
The Court has no position as to Plaintiff’s or
Defendant Ryan’s credibility, and issues no finding regarding
whether
Defendant
Ryan
encountered
described in Plaintiff’s testimony.
Plaintiff
in
the
manner
When taking the record as a
whole, however, and by making determinations of credibility, a
rational jury could find that Defendant Ryan called Plaintiff a
snitch in front of other detainees and thus placed him at risk of
harm.
See Matsushita Elec. Indus. Co., 475 U.S. at 587; see
Quezada v. Roy, No. 14-CV-4056 (CM), 2017 WL 6887793, at *15
(S.D.N.Y. Dec. 14, 2017) (finding triable issue of fact, based on
Plaintiff’s deposition testimony, “as to whether prison employees
referred to [plaintiff] as a snitch in front of other inmates”).
If a rational fact finder resolved these disputed issues of
fact in Plaintiff’s favor, Plaintiff would be able to establish a
failure to protect claim as a matter of law.
of
a
Fourteenth
Amendment
failure
to
The objective prong
protect
claim
requires
Plaintiff to establish that conditions were “sufficiently serious”
to trigger constitutional protection.
67
Courts in this Circuit have
found that “when an inmate is the victim of an undisputedly
unprovoked attack, sufficiently severe injuries may constitute per
se showings of a sufficiently serious condition of confinement.”
Gordon v. Drummond, No. 19-CV-8405(GBD)(GWG), 2021 WL 5314604, at
*7 (S.D.N.Y. Nov. 16, 2021) (alterations and citations omitted),
report and recommendation adopted, 2022 WL 884971 (S.D.N.Y. Mar.
25, 2022); see also House, 2020 WL 6891830, at *13 (collecting
cases where victims were subjected to unprovoked attacks and thus
met objective prong); Warren v. Goord, 579 F. Supp. 2d 488, 491,
494 (S.D.N.Y. 2008), aff’d, 368 F. App’x 161 (2d Cir. 2010) (where
inmate watching television was attacked with a razor by another
inmate, resulting in a three-inch face wound and stitches); Knowles
v. N.Y.C. Dep’t of Corr., 904 F. Supp. 217, 221 (S.D.N.Y. 1995)
(finding
that
objective
prong
was
“easily
satisfie[d]”
after
plaintiff’s “face [was] suddenly and unexpectedly slashed with a
sharp instrument possessed by a fellow inmate” resulting in a “deep
cut to his face”); see King v. Dep’t of Correction, No. 95-CV-3057
(JGK), 1998 WL 67669, at *5 (S.D.N.Y. Feb. 18, 1998) ([T]he injury
sustained by the plaintiff, a cut to his face, neck, and shoulder
requiring 12–13 stitches, and the manner in which he received the
injury, are sufficient to satisfy the objective requirement of the
Eighth Amendment claim.”).
Here, it is undisputed that Plaintiff was slashed across the
face from his ear to his mouth and required medical attention,
68
including numerous stitches.
argue
that
Plaintiff
did
Further, Defendant Ryan does not
anything
to
provoke
the
attack;
conversely, he asserts that “the assault was a sudden and random
incident in the recreation yard between inmates.”
2, Def Ryan Mem. of Law at 12.)
(ECF No. 216-
Such a severe and unprovoked
attack constitutes a “per se showing[]” of the objective prong of
a Fourteenth Amendment failure to protect claim.
Gordon, 2021 WL
5314604, at *7, report and recommendation adopted, 2022 WL 884971.
Even if Plaintiff was unable to establish the objective prong
due
to
the
sufficiently
unprovoked
serious
and
serious
conditions
of
nature
of
the
assault,
confinement
may
also
be
established by “a particularized, substantial risk of serious
harm.”
House, 2020 WL 6891830, at *12.
Courts in this Circuit
have noted that “a claim for deliberate indifference may lie where
a corrections officer identifies an inmate as being an informant
or ‘snitch’ in front of other inmates.”
Campbell v. Gardiner, No.
12-CV-6003 (MWP), 2014 WL 906160, at *4 (W.D.N.Y. Mar. 7, 2014);
see Burns v. Martuscello, 890 F.3d 77, 91 (2d Cir. 2018) (“If a
prison snitch is found out, then the inmate’s . . . service as an
informant may well prompt life-threatening physical harm. And even
if the informant is never unmasked, she must shoulder the burden
of the knowledge that, if her status as a snitch ever does come to
light, violence may well befall her.”); Hamilton v. Fischer, 16CV-6449,
2013 WL 3784153, at *15 (W.D.N.Y.2013) (“[C]ourts have
69
recognized that being labeled a snitch in the prison environment
can indeed pose a threat to an inmate’s health and safety in
violation of the Eighth Amendment.” (internal quotation marks and
citations omitted)).
Further, courts have found harm, albeit in
the context of an Eighth Amendment excessive force claim, where a
prison official called a prisoner a snitch and the prisoner
suffered actual harm. See Quezada, 2017 WL 6887793, at *14; Watson
v. McGinnis, 964 F. Supp. 127, 132 (S.D.N.Y. 1997) (“[A] guard’s
intentionally calling a prisoner a snitch in order to cause him
harm by other inmates states an Eighth Amendment excessive force
claim.”).
Accordingly, Plaintiff could establish a particularized
and substantial risk of serious harm if the jury found that
Defendant Ryan called him a snitch in front of other inmate, and
Plaintiff thus could establish the objective prong of a Fourteenth
Amendment failure to protect claim.
As to the subjective prong of a Fourteenth Amendment failure
to protect claim, if a jury were to credit Plaintiff’s account and
find that Defendant Ryan repeatedly called Plaintiff a snitch in
front of other inmates, Plaintiff could establish that Defendant
Ryan “recklessly failed to act with reasonable care to mitigate
the risk that the condition posed to the pretrial detainee even
though the defendant-official knew, or should have known, that the
condition posed an excessive risk to health or safety.”
849 F.3d at 35.
Darnell,
It is undisputed that Defendant Ryan was aware
70
that referring to someone as a “snitch” in a prison setting could
put them in danger.
(See ECF No. 194, Def. Ryan Reply 56.1 at ¶
204; see also ECF No. 188-45, Ex. 57 at 25-27.)
There is also
record evidence, undisputed by Defendant Ryan, that other prison
officials understood that referring to a detainee as a “snitch”
could be dangerous.
(See ECF No. 194, Def. Ryan Reply 56.1 at ¶
203; ECF No. 188-41, Ex. 52 at 152:10-153:7.)
One NCCC official,
Lieutenant Arthur Krueger, testified in his deposition that it
would be a “no-no” for a corrections officer to refer to an inmate
as a snitch around other inmates; that it could lead to “anything
from . . . [that inmate] being ostracized to maybe a physical
assault,”;
and
that
an
officer
would
disciplined for engaging in such behavior.
52 at 152:10-153:7.)
“quite
possibly”
be
(ECF No. 188-41, Ex.
Further, the Second Circuit noted that
“courts have found an Eighth Amendment violation where a guard
publicly labels an inmate as a snitch, because of the likelihood
that the inmate will suffer great violence at the hands of fellow
prisoners.”
Burns, 890 F.3d at 91; Hamilton, 2013 WL 3784153, at
*15 (noting “courts have recognized that being labeled a snitch in
the prison environment can indeed pose a threat to an inmate’s
health and safety in violation of the Eighth Amendment” (internal
quotation marks and citations omitted)); Tate v. City of New York,
No. 16-CV-1894 (KAM)(SMG), 2017 WL 10186809, at *11 (E.D.N.Y. Sept.
29, 2017) (noting that plaintiff can meet subjective prong “by
71
identifying a specific threat or any facts rendering it likely
that
plaintiff
(internal
would
quotation
be
subject
marks
to
imminent,
omitted)).
Plaintiff was harmed by the assault.
It
is
physical
harm”
undisputed
that
Under these circumstances,
Plaintiff could establish the subjective prong of a failure to
protect claim.
Nassau
County
Defendants,
however,
contend
that
all
individual defendants, including Defendant Ryan, are entitled to
qualified immunity. (ECF No. 215-4, Nassau County Defs. Mem. of
Law at 22.)
Setting aside whether the Court should consider an
argument not raised by Defendant
Ryan, the Court finds that
qualified immunity does not bar this claim against Defendant Ryan.
The Supreme Court “does not require a case directly on point for
a right to be clearly established,” but “existing precedent must
have
placed
debate.”
the
statutory
or
constitutional
question
beyond
White v. Pauly, 580 U.S. 73, 79 (2017) (alterations.
internal quotation marks and citation omitted).
Accordingly, a
clearly established violation requires “a body of relevant case
law, particularized to the facts of the case, that makes plain
that
[Defendant
Ryan’s]
[Fourteenth] Amendment.”
conduct
was
in
violation
of
the
Liverpool v. Davis, 442 F. Supp. 3d 714,
734 (S.D.N.Y. 2020).
Assuming the facts in Plaintiff’s favor, a body of relevant
case law exists here.
It has long been “clearly established” that
72
“[p]rison officials have a duty . . . to protect prisoners from
violence at the hands of other prisoners.”
Farmer, 511 U.S. at
833 (internal quotation marks and citation omitted).
Indeed, the
Second Circuit has stated plainly that “[i]n the prison context,
the clearly established standard for [a failure to protect] claim
is that the official acted with deliberate indifference toward the
safety of the prisoner.”
Gordon v. City of New York, No. 05-CV-
0351, 2005 WL 2899863, at *1 (2d Cir. Nov. 3, 2005) (citing Hayes
v. N.Y.C. Dep’t of Corr., 84 F3.d 614, 620-21 (2d Cir. 1996)).
And, in Darnell, the Second Circuit clearly held that deliberate
indifference
intentionally
occurs
to
impose
where
the
a
“defendant-official
alleged
condition,
or
acted
recklessly
failed to act with reasonable care to mitigate the risk that the
condition posed to the pretrial detainee even though the defendantofficial knew, or should have known, that the condition posed an
excessive risk to health or safety.”
849 F.3d at 35.
The case law encompasses the facts of this case.
In Burns v.
Martuscello, the Second Circuit stated that it is “well understood
that inmates known to be snitches are widely reviled within the
correctional system” and that “a number of courts have found an
Eighth Amendment violation where a guard publicly labels an inmate
as a snitch, because of the likelihood that the inmate will suffer
great violence at the hands of fellow prisoners.”
890 F.3d at 91
(emphasis added) (citing intra- and inter-Circuit case law that
73
predates November 2017).
The Second Circuit concluded that,
therefore, being unmasked as an alleged informant, whether or not
true, “may well prompt life-threatening physical harm.”
Id.
In
Benefield v. McDowall, a 2001 decision cited by Burns, the Tenth
Circuit reiterated a prior holding that “labeling an inmate a
snitch satisfies the Farmer standard, and constitutes deliberate
indifference to the safety of that inmate,” and noted that at least
four other circuits had “recognized that labeling an inmate a
snitch
has
the
potential
constitutional guarantees.”
for
great
harm
and
may
violate
241 F.3d 1267, 1271 (10th Cir. 2001).
Though it is true that the Second Circuit’s Burns decision was
issued shortly after the events at issue here, this Court “finds
that its legal conclusions were obvious, and would have been
obvious to a competent officer” in November 2017.
F. Supp at 735.
Liverpool, 442
Indeed, none of the Defendants disputes the risk
created by a corrections officer calling a detainee a “snitch” in
front of other detainees, and multiple courts within the Second
Circuit agree.
(See ECF No. 196, County Defs. Reply 56.1 at ¶
262; ECF No. 194, Def. Ryan Reply 56.1 at ¶ 204); see, e.g.,
Quezada, 2017 WL 6887793, at *14; Campbell, 2014 WL 906160, at *4;
Hamilton, 2013 WL 3784153, at *15; Snyder v. McGinnis, No. 03-CV0902, 2004 WL 1949472 at *11 (W.D.N.Y. Sept. 2, 2004); Allah v.
Juchnewioz, No. 93-CV-8813 (LMM), 1999 WL 562100, at *3 (S.D.N.Y.
July 30, 1999).
74
Further, though typically “only decisions by the Supreme
Court or the Second Circuit suffice to clearly establish that
conduct is unlawful within this Circuit,” the Second Circuit “has
recognized that law may be clearly established by decisions from
other
circuits,
if
those
decisions
particular ruling on the issue.’”
‘clearly
foreshadow
a
Liverpool, 442 F. Supp at 735
(quoting Terebesi v. Torreso, 764 F.3d 217, 231 (2d Cir. 2014)).
Although Burns’ discussion of Benefield takes place in the context
of a First Amendment claim regarding prison informants, Benefield
clearly foreshadowed the Second Circuit’s reasoning that “violence
may well befall” prison snitches who are “unmasked.”
F.3d at 91.
Burns, 890
And, importantly, Benefield directly states that not
only is it “clearly established” in the Tenth Circuit that being
called a snitch—and having that label be publicized to other
inmates—violated
the
Eighth
Amendment,36
but
that
many
other
circuits have recognized the “potential for great harm” in publicly
labeling inmates as snitches.
241 F.3d at 1271.
The number of
cases regarding the obvious risk of harm created by labeling an
inmates as a “snitch” in front of other detainees constitute the
type of situation the Supreme Court has described as a “consensus
After Darnell¸ it was “clearly established” law in this Circuit that
deliberate indifference claims concerning pretrial detainees fall under the
Fourteenth Amendment’s Due Process Clause. 849 F.3d at 34-35. Because the
Eighth Amendment requires a greater showing by a plaintiff, it was also “clearly
established” that where a defendant-officer’s action—e.g. publicly calling an
inmate a snitch—violated the Eighth Amendment, it would also violate the
Fourteenth Amendment. Id.
36
75
of cases of persuasive authority” establishing “that a reasonable
officer could not have believed that his actions were lawful.”
Wilson v. Layne, 526 U.S. 603, 617 (1999).
Accordingly,
the
Court
“cannot
conclude
that
it
was
objectively reasonable for [Defendant Ryan] to believe that his
actions (as they are alleged by [Plaintiff]) did not violate” the
Constitution.
Dennis v. Westchester Cnty. Jail Corr. Dep’t, 485
F. App’x 478, 481 (2d Cir. 2012) (summary order).
For all of the
reasons discussed above, Defendant Ryan has failed to meet the
burden of demonstrating that “no rational jury could conclude (1)
that the official violated a statutory or constitutional right,
and (2) that the right was clearly established at the time of the
challenged conduct.”
Coollick v. Hughes, 699 F.3d 211, 219 (2d
Cir. 2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).
The Court need not, however, come to a decision on the merits
of qualified immunity.
There exist genuine and material disputes
of fact at this stage, including whether Defendant Ryan called
Plaintiff
a
snitch,
qualified immunity.
that
preclude
summary
judgment
based
on
See Thevenin v. French, 850 F. App’x 32, 36–
38 (2d Cir. 2021) (summary order) (affirming the district court's
denial of summary judgment based on qualified immunity where the
record contained disputed issues of fact); Bonilla v. United
States, 357 F. App’x 334, 335 (2d Cir. 2009) (summary order)
(“Although qualified immunity is a question of law for the [c]ourt,
76
if there are factual disputes that bear directly upon whether it
was objectively reasonable for an official to believe that he was
acting lawfully, these disputes must be resolved by a jury before
the legal question can be addressed.” (citation omitted)).
Accordingly, summary judgment is denied as to Plaintiff’s
failure to protect claim against Defendant Ryan.
ii.
Defendants Hollingshead and James
Nassau
establish
County
a
Defendants
failure
to
argue
protect
that
claim
Plaintiff
against
cannot
Defendants
Hollingshead and James because he has not introduced evidence of
deliberate indifference.
of Law at 17.)
(ECF No. 215-4, Nassau County Defs. Mem.
They assert that (1) Plaintiff’s allegations that
Defendant Ryan called him a snitch “cannot satisfy the objective
prong”; (2) Hollingshead and James had no knowledge that Plaintiff
allegedly was called a snitch prior to the assault; and (3)
Plaintiff never advised either defendant that he feared for his
safety prior to the incident.
(Id. at 19.)
As with Defendant Ryan, Nassau County Defendants do not argue
that the attack was provoked by Plaintiff, asserting instead that
the assault was “a random incident.” (ECF No. 215-4, Nassau County
Defs. Mem. of Law at 19.)
Thus, as this Court determined above,
the “undisputedly unprovoked attack” on Plaintiff, which led to
severe injury, satisfies the objective prong of his failure to
protect claim.
Gordon, 2021 WL 5314604, at *7; see Knowles, 904
77
F.
Supp.
at
221
(objective
prong
“easily
satisfie[d]”
where
plaintiff’s face was “suddenly and unexpectedly slashed with a
sharp instrument,” yielding a deep cut that required stiches).
Regarding
provided
the
limited
subjective
evidence
prong,
to
however,
establish
Plaintiff
that
has
Defendants
Hollingshead and James knew, or should have known, that Plaintiff
was facing “an excessive risk to health or safety.”
F.3d
at
35.
Plaintiff
asserts—and
Nassau
Darnell, 849
County
Defendants
dispute—that Defendants Hollingshead and James were in direct
proximity to Plaintiff, located approximately three feet away in
the
plexiglass
recreation yard.
shack,
when
Plaintiff
was
assaulted
in
the
Nassau County Defendants also dispute that they
failed to protect Plaintiff by not responding to the slashing or
beating as it was occurring, and by not providing aid after the
assault until the end of the recreation period.
(See ECF No. 186,
Pl. Resp. County Defs. 56.1 at ¶¶ 233-34; ECF No. 188-40, Ex. 51,
at 80:18-80:23; ECF No. 184-1, County Defs. 56.1 at ¶¶ 33-34.)
Even
though
a
rational
fact
finder
could
find
Plaintiff’s
assertions credible, such assertions alone do not establish that
Defendants Hollingshead and James knew or should have known of an
excessive risk to Plaintiff—i.e., that he was repeatedly called a
snitch by Defendant Ryan in front of other inmates—in advance of
the assault.
78
Plaintiff did provide additional evidence, however, regarding
Defendant
Hollingshead’s
knowledge
that
Plaintiff
faced
an
excessive risk to his safety and that Defendant Hollingshead
recklessly
failed
to
act
to
mitigate
that
risk.
Plaintiff
testified that when Defendant Hollingshead approached him in the
recreation yard after the assault, Defendant Hollingshead stated
that “things come full circle.”
91:13.)
(ECF No. 188-40, Ex. 51 at 90:22-
Although this statement is disputed, rational factfinders
could resolve this disputed fact in Plaintiff’s favor.
The jury
then could reasonably find that Defendant Hollingshead’s statement
demonstrated that Hollingshead knew that Plaintiff was at risk for
an attack based on Defendant Ryan’s “snitch” comments, but that
Hollingshead “recklessly failed to act with reasonable care to
mitigate the risk” to Plaintiff.
A jury could find that Defendant
Hollingsworth’s statement to Plaintiff after the attack, that
“things come full circle,” implies Hollingsworth’s knowledge of
the risk of assault prior to its occurrence.
See Darnell, 849
F.3d at 29; see also Meeks v. Kartan, No. 08-CV-1037 (GLS)(DEP),
2010 WL 3909356, at *3 (N.D.N.Y. Sept. 30, 2010) (noting that a
plaintiff “may satisfy the subjective requirements of a deliberate
indifference claim” where staff members had “mocked” plaintiff
about his injuries after assault).
At the least, if Defendant
Hollingshead knew that Defendant Ryan publicly called Plaintiff a
snitch or that Plaintiff was reputed to be a snitch, Hollingshead
79
should have known that Plaintiff faced an excessive risk to his
safety.
Cf. Burns, 890 F.3d at 91 (“If a prison snitch is found
out . . . [it] may well prompt life-threatening physical harm.
And even if the informant is never unmasked, she must shoulder the
burden of the knowledge that, if her status as a snitch ever does
come to light, violence may well befall her.”).
Accordingly, Plaintiff has established a genuine issue of
material fact as to whether Defendant Hollingshead knew or should
have known of an excessive risk to Plaintiff’s health and safety.
But because Plaintiff does not provide any evidence to establish
that Defendant James knew or should have known that Plaintiff was
called a snitch in advance of the assault, Plaintiff fails to
establish the subjective prong of his failure to protect claim
against Defendant James.
Thus, Defendant James is granted summary
judgment on Plaintiff’s failure to protect claim.
Nassau County Defendants assert that qualified immunity bars
this claim as to Defendant Hollingshead.
County Defs. Mem. of Law at 22.)
(ECF No. 215-4, Nassau
As noted above, however, it was
clearly established that corrections officers must take reasonable
measures to abate a substantial risk of serious harm if the
officers learn of such a risk to an inmate, Farmer, 511 U.S. at
832-33, 844-45, and that publicly designating an inmate as a snitch
constitutes a substantial risk.
As such, because a reasonable
jury could find Plaintiff’s version of the facts to be true, “a
80
reasonable officer could not have believed that his actions were
lawful.”
Wilson, 526 U.S. at 617.
At this stage, the Court will
not grant summary judgment to Defendant Hollingshead based on
qualified immunity because of the genuine dispute as to whether
Defendant Hollingshead said to Plaintiff after the assault that
“things come full circle.”
See, e.g., Jefferson v. Reddish, 718
F. App’x 94, 96 (2d Cir. 2018) (summary order) (“[G]enuine disputes
of material fact preclude our determining as a matter of law
whether defendants are entitled to qualified immunity.”); Newkirk
v. Cnty. of Suffolk, No. 17-CV-2960 (MKB), 2022 WL 824137, at *6
(E.D.N.Y. Mar. 18, 2022) (“In view of the conflicting evidence
creating disputed issues of fact, the Court denies Defendants’
motion for summary judgment based on qualified immunity.”).
Therefore,
summary
failure
to
protect
granted
as
to
judgment
claim
is
against
Plaintiff’s
failure
denied
Defendant
to
as
to
Plaintiff’s
Hollingshead,
protect
claim
but
against
Defendant James.37
B. Failure to Intervene
Just as prison officials may be liable for failing to protect
an inmate from an assault of which they had knowledge or should
have
had
knowledge,
they
intervene in an assault.
also
may
be
liable
for
failing
to
Velez v. City of New York, No. 17-CV-
This Memorandum and Order addresses Plaintiff’s supervisory liability claim
against Defendant Sposato and municipal liability claim against the County
below.
37
81
9871 (GHW), 2019 WL 3495642, at *3 (S.D.N.Y. Aug. 1, 2019).
“Allowing an attack on an inmate to proceed without intervening is
a constitutional violation in certain circumstances.”
Rosen v.
City of New York, 667 F. Supp. 2d 355, 359 (S.D.N.Y. 2009)
(citation omitted).
“A claim that an officer failed to intervene
rises to the level of a constitutional violation where the officer
acted with deliberate indifference to a substantial risk of serious
harm to an inmate.”
Velez, 2019 WL 3495642, at *3 (internal
quotation marks and citation omitted).
Failure to intervene claims brought by pretrial detainees
arise under the Fourteenth Amendment’s Due Process Clause and must
satisfy the same objective and subjective standards as a failure
to protect claim: (1) an objective showing that the challenged
conditions were sufficiently serious to constitute a due process
violation; and (2) a subjective showing that the official either
knowingly or recklessly failed to act regarding an excessive risk
to health or safety.38
Id. at *3; see also McDaniel v. City of New
In Darnell, the Second Circuit established that deliberate indifference claims
brought by pretrial detainees (1) arise under the Fourteenth Amendment; (2) are
comprised of an objective and subjective standard; and (3) require the
subjective prong “or mens rea prong . . . [to be] defined objectively.” 849
F.3d at 35.
Darnell arose in the context of deliberate indifference to
conditions of confinement.
Since then, the Second Circuit explicitly has
applied the Darnell standard to address deliberate indifference to medical
needs, see, e.g. Charles v. Orange Cnty., 925 F.3d 73, 86-87 (2d Cir. 2019),
and failure to protect claims. See Haslinger v. Westchester Cnty., No. 22-CV131, 2023 WL 219198, at *2 (2d Cir. Jan. 18, 2023). The Second Circuit has not
yet explicitly utilized the Darnell standard for a failure to intervene claim
where a detainee is assaulted. In Darnell, however, the Circuit advised in a
footnote that its “interpretation of deliberate indifference applied to any
pretrial detainee claim for deliberate indifference to serious threat to health
or safety . . . because deliberate indifference means the same thing for each
38
82
York, No. 19-CV-8735(KPF)(RWL), 2022 WL 421122, at *8-10 (S.D.N.Y.
Feb. 11, 2022).
The subjective prong is met where an officer “has
adequate time to assess a serious threat against an inmate and a
fair opportunity to protect the inmate without risk to himself,
yet fails to intervene.”
McDaniel, 2022 WL 421122, at *10; see
also Williams v. Salvucci, No. 20-CV-5098 (CS), 2022 WL 17586326,
at *8 (S.D.N.Y. Dec. 12, 2022).
Courts may ask whether a defendant
“observed or had reason to know the plaintiff was involved in a
physical altercation” and “had an extended opportunity to stop the
attack but failed to take any action to do so.”
Blake v. Sexton,
No. 12-CV-7245 (ER), 2016 WL 1241525, at *4 (S.D.N.Y. Mar. 24,
2016)
(alterations
and
internal
quotation
marks
omitted).
McDaniel, 2022 WL 421122, at *10.
As
previously
discussed,
Plaintiff
has
established
the
objective prong of a deliberate indifference claim: his undisputed
injuries
establish
serious.”
that
the
conditions
were
“sufficiently
Darnell, 849 F.3d at 35; see also Blake, 2016 WL
1241525, at *4 (“[The] documented injuries suffered by Plaintiff
support
the
sufficiently
inference
that
serious—during
the
conditions
were
attack.”
(citation
type of claim under the Fourteenth Amendment.” 849 F.3d at 33
multiple district courts in this Circuit have applied Darnell in
failure to intervene claims. See Velez, 2019 WL 3495642, at *3;
WL 421122, at *8-10. Accordingly, the Court applies the Darnell
83
urgent—i.e.,
omitted)).
n.9. Further,
the context of
McDaniel, 2022
standard here.
Therefore, the Court addresses whether Plaintiff has established
the subjective prong of a failure to intervene claim.
i.
Defendant Ryan
Plaintiff does not submit any record evidence establishing
that Defendant Ryan “observed or had reason to know” that Plaintiff
was being assaulted in the recreation yard on November 17, 2018,
Blake, 2016 WL 1241525 at *4, and thus that Defendant Ryan had
“adequate time” to assess and address the “serious threat” to
Plaintiff.
McDaniel, 2022 WL 421122, at *10.
Accordingly,
Plaintiff cannot establish the subjective prong of his failure to
intervene claim against Defendant Ryan, and summary judgment is
granted to Defendant Ryan as to that claim.
ii.
Defendants Hollingshead and James
Nassau County Defendants assert that Plaintiff’s failure to
intervene claim—alleging that Defendants Hollingshead and James,
while in the plexiglass shack, observed Plaintiff being attacked
in the recreation yard but did not leave the shack to assist him—
is “pure baseless speculation specifically denied by the officers”
and is “unsupported by any facts.”
Defs. Mem. of Law at 17.)
Defendants
testimonies.
Ex. 50.)
Hollingshead
and
(ECF No. 215-4, Nassau County
In support of their assertions,
James
submit
their
deposition
(Id. at 18; ECF No. 188-44, Ex. 55; ECF No. 188-39,
They contend that neither defendant saw the assault nor
learned of the assault until the end of the recreation period.
84
(Id.)
Plaintiff counters that the assault was “long enough and
close enough” to Defendants that Defendants Hollingshead and James
were “at least reckless in failing to notice” it, and also cites
the Model Instructions’ provision that staff must remain within
“earshot” of inmates during periods of active supervision, such as
when inmates are in a recreation yard. (ECF No. 215-11, Pl. Memo
in Opp. at 20-21; ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶
133; ECF No. 189-18, Ex. 64 at 6.)
provision
of
the
Model
Plaintiff also cites the
Instructions
that
states
that
“[s]upervision cannot be met by staying behind an officer’s work
station.”
(ECF No. 189-18, Ex. 64 at 6.)
Whether Defendants failed to intervene
involves disputed
facts that cannot be resolved by the Court at summary judgment.
The parties agree that Defendants Hollingshead and James were in
the shack in the recreation yard, and it is undisputed that the
shack was see-through with plexiglass walls and overlooked the
entire yard.
ECF No. 184-1, County Defs. 56.1 at ¶ 23; ECF No.
186, Pl. Resp. County Defs. 56.1 at ¶ 23; County Defs. Reply 56.1
at ¶ 270.)
The parties, however, dispute (1) the extent to which
Defendants Hollingshead and James could see detainees in the yard
from the shack; (2) whether they saw anything about the attack;
and (3) when they responded to Plaintiff.
(ECF No. 186, Pl. Resp.
County Defs. 56.1 at ¶¶ 27, 232; ECF No. 188-40, Ex. 51, at 80:1881:3, 81:25-82:12; ECF No. 184-1, County Defs. 56.1 at ¶ 27.)
85
Thus, there are genuine disputes of fact as to whether Defendants
Hollingshead and James had “adequate time to assess a serious
threat” against Plaintiff before and during the attack, and whether
they had time to intervene.
McDaniel, 2022 WL 421122, at *10; see
also Rosen, 667 F. Supp. 2d at 360 (summary judgment denied where
factual disputes existed as to “what, if anything, [defendant] saw
of the fight” and “how long [defendant] was watching the fight,
and whether he had a reasonable opportunity to intervene”).
Nassau County Defendants assert that Plaintiff’s claim “is
“unsupported by any facts.”
(ECF No. 215-4, Nassau County Defs.
Mem. of Law at 17.) However, Plaintiff testified in his deposition
that, he was about three feet in front of the plexiglass shack
where Defendants Hollingshead and James were on duty when he was
attacked by several men, who jumped on him, slashed his face, and
beat him on the ground.
(ECF No. 186, Pl. Resp. County Defs. 56.1
at ¶¶ 282-282, 290; ECF No. 188-40, Ex. 51 at 80:18-81:3, 81:2582:12.)
He testified that after getting to his feet after he was
attacked, he was bleeding from his face, and looked towards the
shack for several minutes.
80:23; 82:17-85:17.)
(ECF No. 188-40, Ex. 51, at 80:18-
He testified that he believed he made eye
contact with an officer in the plexiglass shack, but neither
Defendant left the shack until the end of the recreation period.
(Id.)
The
record
evidence,
including
Plaintiff’s
deposition
testimony, is sufficient for a rational juror to find that both
86
defendants had “observed or had reason to know the plaintiff was
involved in a physical altercation” and had “a fair opportunity to
protect [him] without risk,” yet failed to intervene.
WL 1241525, at *4.
Blake, 2016
Indeed, the parties agree that correction
officers generally could intervene from the shack if they observed
a threat to a detainee in the recreation yard.
County Defs. Reply 56.1 at ¶¶ 279-80.)
(ECF No. 196,
Thus if a rational
factfinder found Plaintiff credible, and found that Defendants
Hollingshead and James observed the assault on Plaintiff from the
shack while it was unfolding, but failed to intervene, the juror
could find for Plaintiff.
Nassau County Defendants contend that qualified immunity bars
Plaintiff’s
failure
to
Hollingshead and James.
intervene
claim
against
Defendants
It has long been “clearly established”
that a constitutional violation occurs where correctional officers
stand by and allow an inmate-on-inmate attack to proceed without
interference.
See Davidson v. Cannon, 474 U.S. 344, 348 (1986)
(distinguishing meritless Fourteenth Amendment claim from one in
which “officials simply stood by and permitted the attack to
proceed” (citing Curtis v. Everette, 489 F.2d 516, 517-19 (3d Cir.
1973))); Morales v. New York State Dep’t of Corr., 842 F.2d 27, 30
(2d Cir. 1988) (holding that district court erred and that the
“action clearly should be reinstated against [defendant], given
[plaintiff’s]
claim
that
[defendant]
87
stood
by
and
permitted
[inmate] to attack”).
Here, however, the conflicting evidence
presented by the parties regarding what the Defendants observed
creates
disputed
issues
of
material
fact
for
the
jury.
Accordingly, the Court cannot grant summary judgment or find
qualified immunity for the failure to intervene claim against
Defendants Hollingshead and James. See Glover v. City of New York,
No. 15-CV-4899, 2018 WL 4906253, at *24, 33 (E.D.N.Y. Oct. 9, 2018)
(denying qualified immunity for a failure to intervene claim where
“[d]efendants’ argument that they [were] entitled to qualified
immunity inappropriately relie[d] on disputed facts”); Usavage v.
Port Auth. of New York & New Jersey, 932 F. Supp. 2d 575, 599
(S.D.N.Y. 2013) (“[S]ummary judgment is inappropriate when there
are genuine disputes of material fact concerning what the officers
who failed to intervene observed regarding the other officers’
alleged
violations
of
plaintiffs’
constitutional
rights.”
(internal quotation marks and citation omitted)).
Accordingly, summary judgment is denied as to Plaintiff’s
failure to intervene claim against Defendants Hollingshead and
James.
C. Supervisory Liability
Plaintiff asserts a claim of supervisory liability against
Defendant
Sposato
based
on
Plaintiff’s
underlying
failure
to
protect and failure to intervene claims. “It is well settled that,
in order to establish a defendant's individual liability in a suit
88
brought under § 1983, a plaintiff must show . . . the defendant’s
personal involvement in the alleged constitutional deprivation.”
Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013).
In other words, an “individual cannot be held liable for damages
under Section 1983 . . . merely because he held a high position of
authority.”
Back v. Hastings on Hudson Union Free Sch. Dist., 365
F.3d 107, 127 (2d Cir. 2004) (internal quotation marks omitted).
Previously, courts in the Second Circuit relied on the factors
set forth in Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995), to
determine
personal
liability.39
involvement
for
purposes
of
supervisory
The Second Circuit recently clarified in Tangreti v.
Bachmann, 983 F.3d 609 (2d Cir. 2020), that the Supreme Court’s
ruling in Ashcroft v. Iqbal, 556 U.S. 662 (2009), requires that
there be no “special rule for supervisory liability.”
612.
A
plaintiff
must
plead
that
“each
983 F.3d at
Government-official
defendant, through the official's own individual actions, has
violated
the
Constitution,”
and
thus
must
establish
the
constitutional violation against a supervisory official directly.
Id. at 612, 616 (citation omitted).
Therefore,
Fourteenth
to
Amendment
establish
supervisory
deliberate
liability
indifference
claim
for
a
against
Defendant Sposato, Plaintiff must establish Sposato’s “deliberate
Plaintiff’s memorandum and Nassau County Defendants’ memorandum both assess
Defendant Sposato’s liability under the Colon factors.
39
89
indifference to a substantial risk of serious harm”: (1) that
“challenged conditions were sufficiently serious to constitute
objective deprivations of the right to due process”; and (2) that
Sposato “acted intentionally to impose the alleged condition, or
recklessly failed to act with reasonable care to mitigate the risk
that the condition posed to the pretrial detainee even though the
defendant-official knew, or should have known, that the condition
posed an excessive risk to health or safety.”
at 35.
Darnell, 849 F.3d
Nassau County Defendants correctly note that there is no
allegation in the complaint—and no record evidence to support a
claim—that
Defendant
Defendant
Ryan
Sposato
called
knew
Plaintiff
a
or
should
snitch;
have
or
that
known
that
Defendant
Hollingshead knew that Defendant Ryan had done so but failed to
act on that knowledge; or that Defendants Hollingshead and James
had watched the assault occur against Plaintiff but failed to
intervene.
21.)
(ECF No. 215-4, Nassau County Defs. Mem. of Law at
Accordingly, Plaintiff cannot establish liability based on
Sposato’s supervision of those who committed the violation.
Plaintiff, however, also argues that Defendant Sposato knew
or should have known of violent attacks against NCCC detainees by
other detainees and corrections officers.
Post-Tangreti, district
courts in the Circuit have determined that personal involvement
still may be established for a supervisory defendant if he or she
“created a policy or custom under which unconstitutional practices
90
occurred, or allowed the continuance of such a policy or custom.”
Stone #1 v. Annucci, No. 20-CV-1326 (RA), 2021 WL 4463033, at *8
(S.D.N.Y. Sept. 28, 2021); see also Brunache v. Annucci, No. 22CV-196 (JLS), 2023 WL 146850, at *12 (W.D.N.Y. Jan. 9, 2023);
Latimer v. Annucci, No. 21-CV-1275 (VB), 2022 WL 1137055, at *3
(S.D.N.Y. Apr. 18, 2022); Swinson v. City of New York, No. 19-CV11919 (KPF), 2022 WL 142407, at *7 (S.D.N.Y. Jan. 14, 2022).
This
is because an “individual who creates a policy or custom whereby
the constitution is violated . . . is more directly and personally
involved in the constitutional violation than someone who is only
negligent
in
his
supervision
underlying offense.”
of
the
official
committing
Stone, 2021 WL 4463033 at *8.
the
Thus “where
a plaintiff can establish that a senior official promulgated an
unconstitutional policy with a culpable mental state . . . such
official
could
be
deemed
constitutional violation.”
to
be
personally
involved
in
a
Id.
Accordingly, this Court must assess if there is a genuine
issue of material fact as to whether Defendant Sposato created or
continued an unconstitutional policy, practice, or custom and did
so with deliberate indifference.
other
words,
the
Court
must
Darnell, 849 F.3d at 35.
examine
whether
Plaintiff
In
has
established genuine disputes of material fact that could create
(1) an inference that Defendant Sposato knew or should have known
of a serious risk of harm or injury to detainees; and (2) an
91
inference
that
Defendant
Sposato
intentionally
or
recklessly
disregarded that risk by failing to enact adequate policies and
practices to protect against it.
See Myers ex rel. Myers v.
Davenport, No. 21-CV-0922 (LEK)(CFH), 2022 WL 3017367, at *7
(N.D.N.Y. July 29, 2022) (finding facts sufficient to allege
supervisory
liability
claim
for
Eighth
Amendment
deliberate
indifference on motion to dismiss).
Plaintiff has established sufficient disputed material facts
to meet the forgoing standard.
Defendant Sposato testified in his
deposition that he was briefed on any use of force by inmates
against other inmates or corrections officers, pursuant to a policy
change that he had implemented, because, inter alia, “there were
always lawsuits and stuff. You get lawsuits and you want to know.”
(ECF No. 188-43, Ex. 54 at 81:09-81:22, 88:09-88:17, 89:20-89:25.)
Record evidence also shows that there were at least 11 lawsuits
filed against the County in which pretrial detainees alleged that
they were assaulted while in custody at NCCC, either by other
detainees or by corrections officers.
(See ECF No. 186, Pl. Resp.
County Defs. 56.1 at ¶¶ 106-116, 118, 120, 123.)
Further, the
news articles submitted by Plaintiff, although inadmissible for
the truth of the matters asserted, establish that Defendant Sposato
was or should have been on notice of a significant number of
complaints of assaults, including slashings of detainees.
Cf.
Edwards v. City of New York, No. 14-CV-10058 (KBF), 2015 WL
92
5052637,
at
*6
(S.D.N.Y.
Aug.
27,
2015)
(explaining
that
plaintiff’s “news articles and eighteen prior lawsuits plausibly
demonstrate” that policymakers had knowledge of a situation within
a prison); (see ECF No. 21, Exhibit 24; ECF No. 22, Exhibit 25;
ECF No. 34, Exhibit 46.)
Indeed, Defendant Sposato testified in
his deposition that corrections officers at NCCC “very rarely”
found weapons after an inmate assault, and that he knew that
failing
to
inmates.”
132:06.)
find
such
weapons
had
“security
implications
for
(ECF No. 188-43, Ex. 54 at 131:10-131:23, 131:24Based on the evidence before the Court, a rational juror
could resolve factual disputes in Plaintiff’s favor and find that
Defendant Sposato knew or should have known of a serious risk of
harm or injury to detainees.
Additionally,
inference
that
there
Defendant
is
enough
Sposato
evidence
to
intentionally
support
or
an
recklessly
disregarded that risk of serious harm by failing to enact adequate
policies and practices to protect against it.
testified
in
his
deposition
that
he
had
Defendant Sposato
final
policymaking
authority at NCCC as acting Sheriff and Sheriff and that “every
county has their own policies, their own rules.”
(ECF No. 188-
43, Ex. 54 at 32:22-32:24, 43:20-43:22, 51: 51:14-52:1.)
An NCCC
official, Lieutenant Arthur Krueger, confirmed in his deposition
testimony that “all policies and procedures at [NCCC] have to be
authorized by the Sheriff.”
(ECF No. 188-41, Ex. 52 at 24:0293
25:22; 35:06-35:09.)
Along with sufficient evidence in the record
establishing that Defendant Sposato was aware or should have been
aware of a serious risk of harm to detainees, as noted above, there
is a disputed issue of material fact as to whether Defendant
Sposato acted on that knowledge. Multiple NCCC officials testified
that there was no policy in place to respond to or investigate
inmate assaults. (ECF No. 188-46, Ex. 58 at 121:11-121:18; 143:16144:1;
ECF
No.
188-42,
Ex.
53
at
63:06-63:22,
64:08-64:10.)
Indeed, NCCC officials could not recall whether the Sheriff had
ever issued a policy regarding inmate assaults or slashings.
No. 188-41, Ex. 52 at 32:07-32:19.)
(ECF
Defendant Sposato himself
testified that he “didn’t create policies very often”; that it
“wasn’t a regularity that [he] was putting out policies”; and that
“a new policy would be very rare.”
51:14-52:04;
52:14-53:19,
(ECF No. 188-43, Ex. 54 at
131:10-131:23,
131:24-132:06.)
Therefore, a rational juror could conclude from the evidence in
the record that Defendant Sposato at least recklessly disregarded
a risk of serious harm to detainees by failing to enact adequate
policies.
Accordingly, summary judgment is denied as to Plaintiff’s
supervisory liability claim against Defendant Sposato.
D. Municipal Liability
To establish a municipal liability claim, a plaintiff must
establish three elements: “(1) an official policy or custom that
94
(2) caused him to be subjected to (3) a denial of a constitutional
right.”
Torcivia v. Suffolk Cnty., 17 F.4th 342, 355 (2d Cir.
2021) (alterations omitted) (quoting Wray v. City of New York, 490
F.3d 189, 195 (2d Cir. 2007)).
custom,
a
plaintiff
must
To establish an official policy or
prove
either
“(1)
a
formal
policy
officially endorsed by the municipality; (2) actions or decisions
made by municipal officials with decision-making authority; (3) a
practice so persistent and widespread that it constitutes a custom
of which policymakers must have been aware; or (4) a failure by
policymakers to properly train or supervise their subordinates,
such that the policymakers exercised ‘deliberate indifference’ to
the
rights
of
the
plaintiff
and
others
encountering
those
subordinates.” McDonald v. City of New York, No. 20-CV-4614 (MKB),
2022 WL 1469395, at *4 (E.D.N.Y. May 10, 2022) (citations omitted).
A policy “may be pronounced or tacit” and “reflected in either
action or inaction.”
marks omitted).
Lucente, 980 F.3d at 297 (internal quotation
Inaction rises to the level of policy “where a
local government is faced with a pattern of misconduct and does
nothing, compelling the conclusion that the local government has
acquiesced in or tacitly authorized its subordinates’ unlawful
actions.”
Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007).
Plaintiff argues that four policies, practices, and customs
create
liability
constitutional
for
the
rights:
County
“(i)
[a
95
for
the
deprivation
widespread
of
practice
his
of]
‘supervising’ the recreation yard by having officers sit in the
[recreation yard] shack; (ii) [a widespread practice of] failing
to properly investigate assaults; (iii) [a widespread practice of]
maintaining a secret classification system to mark disfavored
detainees; and (iv) failing to supervise and discipline officers.”
(ECF No. 215-11, Pl. Mem. at 21.) Nassau County Defendants counter
that Plaintiff only made “bare assertions with no supportive facts”
and cannot establish a “causal link” between any custom or policy
and the alleged constitutional violation.
(ECF No. 215-4, Nassau
County Defs. Mem. of Law at 15-16.)
i.
“To
Failure to Adequately Supervise Recreation Yard
demonstrate
a
de
facto
policy
or
custom
through
a
widespread practice, a plaintiff must show that the policymaker
was
aware
of
consciously
actions.”
a
subordinate’s
chose
to
ignore
unconstitutional
them,
effectively
actions,
and
ratifying
the
Rodriguez v. City of New York, 607 F. Supp.3d 285, 292
(E.D.N.Y. 2022) (internal quotation marks and citation omitted).
There are numerous disputed facts as to whether Defendant
Sposato,
de
facto
policymaker
for
NCCC,
was
aware
of
and
consciously ignored the practice of officers supervising the NCCC
recreation yard by remaining in the plexiglass shack, amounting to
a widespread practice sufficient to establish municipal liability
on behalf of the County.
generally
walked
around
Defendant James testified that he
the
yard
96
“every
15
to
30
minutes,
possibly.”
(ECF No. 188-44, Ex. 55 at 50:17-51:08.)
Other
officers testified that corrections officers typically stayed in
the shack while supervising the recreation yard.
(See ECF No.
188-46, Ex. 58 at 97:08-97:18; ECF No. 188-48, Ex. 60 at 93:0394:12).
Plaintiff asserts that remaining in the shack during the
entire recreation period counters New York’s minimum standards, as
described
in
the
Model
Instructions,
requiring
“active
supervision” of inmates wherever inmates have “immediate access”
to other inmates, such as in a recreation yard.
Ex. 6 at 12-13; No. 215-11, Pl. Mem. at 25).
(ECF No. 189-4,
Even assuming this
practice was contrary to state minimum standards, that does not
necessarily make it unconstitutional.
Plaintiff, however, argues that even if the practice of
sitting
in
the
shack
during
recreation
is
not
itself
unconstitutional, supervisory knowledge of the lack of “active
supervision” and indifference to the risk of attacks and actual
attacks in the recreation yard “may be highly probative” as to
municipal liability in the context of other evidence showing
unconstitutional conduct. (ECF No. 215-11, Pl. Mem. at 25 (quoting
Lucente, 980 F.3d at 305)).
Plaintiff has provided evidence that
a rational juror could resolve in his favor to establish that the
County—through NCCC policymaker Defendant Sposato—was aware of a
widespread practice of lack of “active supervision” that posed a
serious
risk
to
detainees
in
the
97
recreation
yard,
including
Defendant
Sposato’s
testimony
that
all
inmate
assaults
were
reported to him, and evidence of numerous lawsuits arising from
alleged assaults on and by inmates at NCCC that occurred in areas
of “active supervision.”
(ECF No. 188-43, Ex. 54 at 81:09-81:22,
88:09-88:17, 89:20-89:25).
A rational juror could conclude that
the County had notice of an ongoing failure to protect inmates at
NCCC from the risks of serious harm resulting from a lack of
policies and practices regarding active supervision, including in
the recreation yard, but “consciously chose to ignore” it, given
Defendant Sposato’s testimony that he instituted new policies only
when it was “something [he] felt we needed to do” and at least two
corrections officers’ testimony that they did not always engage in
“active supervision” in the recreation yard.
(See ECF No. 186,
Pl. Resp. County Defs. 56.1 at ¶¶ 106-116, 118, 120, 123; (ECF No.
188-43, Ex. 50 at 51:15-52:04, 52:14-52:19; See ECF No. 188-46,
Ex. 58 at 97:08-97:18; ECF No. 188-48, Ex. 60 at 93:03-94:12.)
Accordingly, the Court finds sufficient evidence in the record to
create a genuine dispute of material fact as to whether there was
a practice of failing to engage in “active supervision”—leading to
a constitutional failure to protect inmates from assaults—that was
sufficiently widespread, but which the County failed to act on, to
establish municipal liability on behalf of the County.
98
ii.
Failure to Adequately Investigate Assaults
Plaintiff also raises genuine disputes of material fact in
support of the County’s municipal liability based on a failure to
properly investigate inmate assaults.
This claim, although framed
as a municipal policy (or lack thereof), is fairly construed to
articulate a claim that the County was aware of and ignored a
widespread
practice
or
custom
of
constitutionally
inadequate
investigations of inmate assaults and allowed the assaults to
continue unabated.
Construing factual disputes in Plaintiff’s
favor, the record evidence shows that (1) after Plaintiff was
assaulted, his housing unit and the recreation yard were not
searched until two hours after the attack, and inmates who had
been in the yard were returned to their units without being
searched (ECF No. 188-46, Ex. 58 at 194:6-194:25; ECF No. 197-21,
Ex. U at 49); (2) CIU, a department in the Sheriff’s Office
assigned
to
conduct
the
investigation,
did
not
appear
to
investigate the assault (ECF NO. 46, Ex. 58 at 216:22-217:22,
219:20-221:03); and (3) an investigation into the assault against
Plaintiff did not begin until over 24 hours after the attack
occurred (ECF No. 46, Ex. 58 at 219:20-221:02).
Further, if
factual disputes are resolved by a jury in favor of Plaintiff, the
record establishes that (1) Defendant Sposato testified that an
investigation should be carried out any time an inmate claimed
they were assaulted or slashed, but there is no evidence that he,
99
as the County’s policymaker for NCCC, implemented practices or
procedures to adequately investigate assaults (ECF No. 188-43, Ex.
54
at
93:07-93:14);
supervisor
at
NCCC,
(2)
did
Sergeant
not
know
Bertin,
of
any
the
formal
housing
unit
policy
that
described how to investigate an inmate assault (ECF No. 188-46,
Ex. 58 at 121:11-121:18; 143:16-144:1); (3) any procedure for such
an investigation instead was learned on-the-job or through a
supervisor’s directions (ECF No. 188-46, Ex. 58 at 121:11-121:18);
(4) Sergeant Bertin could not recall even one instance in which he
recovered contraband, such as a weapon, after an investigation
into
an
inmate
assault,
which
suggests
that
practices
and
procedures were inadequate (ECF No. 188-46, Ex. 58 at 150:06150:20); and (5) Defendant Sposato testified that corrections
officers at NCCC “very rarely” found weapons after an assault,
which a jury could find established constitutionally inadequate
procedures to protect NCCC detainees (ECF No. 188-43, Ex. 54 at
131:10-131:23).
Indeed, Defendant Sposato acknowledged in his
testimony that NCCC’s failure to find weapons used in an assault
could have “security implications for inmates.”
132:6.)
were
(Id. at 131:24-
Finally, the record shows that assaults and slashings
required
to
be
reported
to
the
“State
Commission
of
Corrections,” and that numerous lawsuits were filed against the
County regarding inmate assaults at NCCC, many of which alleged
the use of contraband weapons in the assault.
100
(Id. at 94:14-
94:19; ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶¶ 106-116,
118, 120, 123.)
Therefore, the Court finds sufficient evidence in
the record to create a genuine dispute of material fact as to
whether there was a practice of inadequate investigations of inmate
assaults—leading to a constitutional failure to protect inmates
from assaults and the use of contraband in assaults—that was “so
persistent or widespread as to constitute a custom or usage with
the force of law” of which the County must have been aware.
Okin
v. Vill. of Cornwall-On-Hudson Police Dep’t, 577 F.3d 415, 440 (2d
Cir. 2009) (alterations, internal quotation marks, and citation
omitted).
iii. Unofficial Hash Mark Notation
The same cannot be said regarding Plaintiff’s allegations
about the unofficial hash mark classification system.
Although
there is evidence that at least some of the corrections officers
knew about the hash mark classification system, there
is no
evidence in the record that Defendant Sposato—or through him, the
County—was aware of the unofficial hash mark classification system
to identify inmates who had assaulted corrections officers.
(ECF
No. 186, Pl. Resp. County Defs. 56.1 at ¶¶ 162-63; ECF No. 18845, Ex. 57 at 24; ECF No. 188-44, Ex. 55 at 70:05–71:18.)
iv.
Failure to Train
Plaintiff also argues for municipal liability on the basis
that the corrections officers’ failure to protect or intervene was
101
a result of a failure to train by the County.40
To establish
municipal liability under a failure to train theory, Plaintiff
must establish that the County’s failure to train its employees
“is so obvious, and the inadequacy of current practices so likely
to result in a deprivation of federal rights, that the [County]
can be found deliberately indifferent to the need.”
Reynolds, 506
F.3d at 192 (citation omitted.) To do so, Plaintiff must “identify
a specific deficiency in the . . . training program and establish
that [the] deficiency is ‘closely related to the ultimate injury,’
such that it ‘actually caused’ the constitutional deprivation.”
Tate, 2017 WL 10186809, at *13 (quoting Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 129 (2d Cir. 2004)).
Plaintiff has met his burden for the failure to train claim.
Plaintiff has established material disputed facts as to whether
the training for corrections officers was deficient in preventing
or responding to inmate assaults.
Multiple corrections officers
testified that there was no ongoing training (other than initial
training at the academy) for preventing or responding to inmate
assaults, or if there was, they could not recall it.
(ECF No.
Although Plaintiff brings a failure to train and supervise claim as one claim,
“[c]ourts must analyze these [failure to train and failure to supervise]
theories separately because they emphasize different facts and require different
showings to establish deliberate indifference.” Rodriguez, 607 F.Supp.3d at
285 (internal quotation marks omitted); see also Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 127 (2d Cir. 2004)(“Because these theories emphasize
different facts and require different showings in order to establish deliberate
indifference, they must be analyzed independently, rather than evaluated
collectively.”).
40
102
188-44, Ex. 55 at 23:18-21:23, 128:07-158:12; ECF No. 188-41, Ex.
52 at 49:03-49:13; ECF No. 188-39, Ex. 50 at 15:10-15:22, 59:0659:18.)
There was no staff handbook that listed NCCC policies or
procedures
regarding
the
prevention
of
inmate
assaults,
if
officers chose to seek out additional training on such policies
for themselves, and policies and procedures were not posted in
break areas for corrections officers.
24:16-25:03; 26:06-26:07.)
Though
(ECF No. 188-41, Ex. 52 at
corrections officers could
access NCCC policies on a computer, there was no search function,
and they would have to read through all policies to find guidance
and train themselves on the issue they sought out.
28:19.)
(Id. at 26:08-
At least one NCCC official was “unaware” if there was
anyone on staff at NCCC who could train a corrections officer who
had questions about a particular policy or procedure.
(Id. at
27:13-27:20.)
Plaintiff
also
establishes
sufficient
disputed
facts
concerning causation, or whether the lack of ongoing training
“actually caused” the constitutional violations of failure to
protect and intervene.
Amnesty Am., 361 F.3d at 129.
Plaintiff
has provided more evidence than “the mere fact that the misconduct
occurred in the first place”; as noted above, multiple corrections
officers testified to a lack of specific ongoing training on
preventing and responding to inmate assaults, and there is a
disputed issue of fact as to whether anyone at NCCC could respond
103
to corrections officers’ questions.
Id. at 130.
Further, the
specific deficiency that Plaintiff identifies—that there was no
training about inmate assaults—is “closely related” to Plaintiff’s
ultimate injury, stemming from failing to protect inmates and
failing to intervene in an inmate assault. Tate, 2017 WL 10186809,
at *13. A rational factfinder could conclude that the corrections’
officers actions in failing to protect or intervene occurred as a
result of training deficiencies.
v.
Failure to Supervise
Plaintiff also has provided sufficient evidence establishing
genuine factual disputes regarding municipal liability on the
basis of failure to supervise. A failure to supervise occurs where
“the need for more or better supervision to protect against
constitutional violations was obvious, but [the County] made no
meaningful attempt to forestall or prevent the unconstitutional
conduct.”
Tate, 2017 WL 10186809, at *13 (quoting Vann v. City of
New York, 72 F.3d 1040, 1049 (2d Cir. 1995)).
Such inaction “may
constitute an official policy or custom if the failure amounts to
‘deliberate indifference’ to the rights of those with whom the
[municipal] employees interact.” Wray, 490 F.3d at 195. Deliberate
indifference occurs where “defendants knew to a moral certainty
that the [County] would confront a given situation; the situation
presented the [County] with a difficult choice or there was a
history of its mishandling the situation; and the wrong choice by
104
the [County] would frequently cause the deprivation of plaintiffs’
rights.”
Reynolds, 506 F.3d at 192.
Plaintiff has provided sufficient evidence, from which a jury
could resolve disputes in his favor, that the County “had notice
of a potentially serious problem of unconstitutional conduct, such
that the need for corrective action or supervision was ‘obvious’.”
Vann, 72 F.3d at 1049.
One corrections officer testified that
there were “so many assaults [on inmates] throughout the week”
that he could not keep track of them, and Defendant James testified
that there were assaults at least several times a year, sometimes
as often as “weekly.”
(ECF No. 188-42, Ex. 53 at 96:23-96:09; ECF
No. 188-44 at 26:21-27:10.)
These assaults
on inmates
were
reported to Defendant Sposato, the final policymaker for the County
in his role as Acting Sheriff and Sheriff.
54
at
32:22-32:24,
81:14-81:19.)
(ECF No. 188-43, Ex.
Defendant
Sposato
actively
changed the policy to require that “all uses of force be reported
to the Sheriff.” (Id. at 88:09-88:17).
The County was also aware
of at least 11 lawsuits alleging assaults on inmates between
October 2006 and February 2016.
See Vann, 72 F.3d at 1049 (stating
that an “obvious need may be demonstrated through proof of repeated
complaints of civil rights violations”).
A rational juror could
find from this evidence that the County knew to a moral certainty
of the assaults on inmates and that the “need for more or better
105
supervision
obvious.”
to
protect
against
constitutional
violations
was
Id.
Similarly, a rational juror could also find that, rather than
address the obvious need for closer supervision, the County failed
to
take
meaningful
action.
Defendant
Sposato,
the
County’s
policymaker for NCCC, testified that the creation of new policies
while he was Acting Sheriff or Sheriff was “very rare” and occurred
only when he got guidance from the state or it was “something [he]
felt we needed to do.”
52:14-52:19.)
(ECF No. 188-43, Ex. 50 at 51:15-52:04,
The policy changes that Defendant Sposato testified
to implementing, however, pertained primarily to reducing the size
of administrative staff and reducing overtime payments for staff,
which a jury could find exacerbated the risk of harm at NCCC. (Id.
at 48:19-49:17, 65:15-66:21.)
A rational factfinder could resolve
factual disputes for Plaintiff and could find that the County and
policymaker Defendant Sposato were aware of an “obvious” problem
of numerous inmate assaults but did not feel that implementing or
changing NCCC policies to supervise officers and prevent assaults
was something that they “needed to do,” and that this demonstrated
a history of mishandling the ongoing inmate assaults, which caused
the violation of Plaintiff’s rights.
552
F.
Supp.
requirement
3d
that
350,
379
complaints
See Jackson v. Nassau Cnty.,
(E.D.N.Y.
result
106
in
2021)
a
(“[T]here
formal
is
no
finding
of
misconduct for such complaints to support findings of failure to
supervise.”).
Plaintiff also has established genuine disputes of fact as to
whether the County knew “to a moral certainty” that NCCC officers
would face inmate assaults, and that there was a history of, at
the least, allegations that the County had previously mishandled
such situations.
that
plaintiff's
Cf. Edwards, 2015 WL 5052637, at *6 (explaining
“news
articles
and
eighteen
prior
lawsuits
plausibly demonstrate that policymakers knew to a moral certainty
that DOC officers routinely confront situations in which detainees
provoke
them
and
that
there
is
a
history
of
DOC
officers
mishandling such situations by responding with excessive force”).
A jury could
corrections
reasonably
officers
infer that the failure to supervise
and
staff
would
cause
“frequent
constitutional deprivations,” Rodriguez, 607 F.Supp.3d at 295,
especially given evidence in the record that some corrections
officers at NCCC encouraged detainees to attack other detainees.
(See ECF No. 188-40, Ex. 51 at 171:04–173:06.)
Accordingly, Plaintiff presents genuine issues of material
fact as to whether the County is subject to municipal liability on
a theory of widespread practice and custom, a theory of failure to
train, and a theory of failure to supervise.
Summary judgment is
therefore denied as to Plaintiff’s claim against the County for
municipal liability.
107
CONCLUSION
For the forgoing reasons, the Court ORDERS as follows:
1. Defendant Ryan’s motion for summary judgment is GRANTED as to
the failure to intervene claim against Defendant Ryan but is
DENIED as to the failure to protect claim against Defendant
Ryan.
2. Nassau County Defendants’ motion for summary judgment is
GRANTED as to the failure to protect claim against Defendant
James, but is DENIED as to the failure to protect claim
against Defendant Hollingshead.
3. Nassau County Defendants’ motion for summary judgment is
DENIED as to the failure to intervene claims against Defendant
James and Defendant Hollingshead.
4. Nassau County Defendants’ motion for summary judgment is
DENIED
as
to
the
supervisory
liability
claim
against
Defendant Sposato.
5. Nassau County Defendants’ motion for summary judgment is
DENIED as to the municipal liability claim against the County,
on theories of widespread practice or custom; failure to
train; and failure to supervise.
The parties are strongly encouraged to engage in good faith
settlement
negotiations,
and
are
directed
to
appear
before
Magistrate Judge Bloom for a settlement conference. If the parties
do not settle, the parties are directed to file a joint status
108
report advising the Court of the failure to settle and, within
sixty (60) days of such a report, the parties are directed to file
a joint pretrial order according to the procedures listed in the
Court’s Chambers Practices.
SO ORDERED
Dated:
March 11, 2023
Brooklyn, New York
HON. KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
109
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