Watson v. Doe et al

Filing 9

MEMORANDUM-DECISION AND ORDER adopting Report and Recommendations re 6 Report and Recommendations. ORDERED that the amended complaint (Dkt. No. 7) is ACCEPTED AS FILED; and it is further ORDERED that the Report Recommendation (Dkt. No. 6) is ADO PTED as it applies to the amended complaint; and it is further ORDERED that plaintiff's Fourteenth Amendment deliberate medical indifference claim is DISMISSED without prejudice and with leave to amend; and it is further ORDERED that if plaintif f wishes to file a second amended complaint that correct the pleading defects identified with respect to his Fourteenth Amendment deliberate indifference claim, he shall do so within thirty (30) days of the date of this order; and it is further ORDER ED that any second amended complaint plaintiff submits shall be a complete pleading, which will supersede the amended complaint, and may not incorporate any portion of the original or amended complaints by reference, in accordance with Local Rule 7.1 (a)(4) of the Local Rules of Practice for this District; and it is further ORDERED that the Clerk of the Court shall add the City of Kingston as a defendant in this action and amend the caption accordingly; and it is further ORDERED that once the Ci ty of Kingston has filed an answer, plainitff must seek, through discovery, the identity of the Doe defendants; and it is further ORDERED that upon receipt from the plaintiff of the documents required for service of process, the Clerk of the Court sh all issue a summons, together with a copy of plainitff's amended complaint, and forward them to the United States Marshal for service upon the City of Kingston; and it is further ORDERED that, after service of process on defendant City of Kingst on, it shall file a response to the amended complaint as provided for in the Federal Rules of Civil Procedure; and it is further ORDERED that the Clerk of the Court shall mail a copy of this Memorandum-Decision and Order to plaintiff along with copies of the unpubished cited in this decision.. Signed by Judge Brenda K. Sannes on 1/28/2016. (khr) Mailed copy of Memorandun-Decision and Order with copies of unpublished decisions, Form USM-285 on 1/28/2016

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________________
TYRONE WATSON,
Plaintiff,
v.

1:15-cv-1356 (BKS/DEP)

JOHN DOE, Kingston Police Department, et al.
Defendants.
______________________________________________________
APPEARANCES:
Tyrone Watson
13-A-4239
Eastern NY Correctional Facility
Box 338
Napanoch, NY 12458
Pro se Plaintiff

Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Plaintiff Tyrone Watson, a New York State inmate, commenced this civil rights action

under 42 U.S.C. § 1983, against two John Doe defendants who are members of the Kingston
Police Department. Dkt. No. 1. Plaintiff alleges that defendants used excessive force against him
during an unlawful arrest on October 18, 2012, and refused him medical attention for his injuries.
Id.
Plaintiff’s complaint and application to proceed in forma pauperis were forwarded to
United States Magistrate Judge David E. Peebles to review the sufficiency of the claims under 28

U.S.C. § 1915(e). 1 On December 21, 2015, Magistrate Judge Peebles issued a Report,
Recommendation, and Order recommending that plaintiff’s Fourteenth Amendment deliberate
medical indifference claim be dismissed, without prejudice, with leave to amend. Dkt. No. 6, p.
12. Judge Peebles further recommended that in the event the Report Recommendation is
adopted and plaintiff fails to amend his complaint by the deadline set by the assigned district
judge, plaintiff’s complaint be accepted for filing, except as to his deliberate medical
indifference claim, and that the Clerk of the Court add the City of Kingston Chief of Police,
Gilles M. Larochelle, as a defendant for purposes of service and discovery. Id. Magistrate Judge
Peebles advised plaintiff that, under 28 U.S.C. § 636(b)(1), failure to file written objections to
the Report Recommendation within fourteen days “will preclude appellate review.” Id.
On January 7, 2016, plaintiff filed an amended complaint. Dkt. No. 7. The amended
complaint contains additional facts regarding plaintiff’s excessive force, false arrest, and
deliberate indifference claims. Id. The amended complaint also contains allegations, which,
viewed liberally, appear to assert a municipal liability claim under Monell v. Dep’t of Social
Servs., 436 U.S. 658 (1978), against the City of Kingston. Id. To date, plaintiff has not filed any
objections to the Report Recommendation.
II.

STANDARD OF REVIEW
As no objections to the Report Recommendation have been filed, and the time for filing

objections has expired, the Court reviews the Report Recommendation for clear error. See
Glaspie v. N.Y.C. Dep’t of Corr., No. 10 CV 00188(GBD)(JCF), 2010 WL 4967844, at *1, 2010
U.S. Dist. LEXIS 131629, at *2-3 (S.D.N.Y. Nov. 30, 2010) (explaining that when no objections

1

Section 1915(e) directs that when a plaintiff seeks to proceed in forma pauperis, “the court shall dismiss the case at
any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B).

2

to report and recommendation are made, “the Court may adopt [it] if there is ‘no clear error on
the face of the record.’”) (quoting Adee Motor Cars, LLC v. Amato, 388 F. Supp. 2d 250, 253
(S.D.N.Y. 2005)).
III.

DISCUSSION
A.

Excessive Force and False Arrest

The Court has reviewed the Report Recommendation with respect to the excessive force
and false arrest claims for clear error and found none. The Court therefore adopts Magistrate
Judge Peebles’ conclusion that plaintiff’s allegations asserting excessive force and false arrest
are sufficient to survive review under 28 U.S.C. § 1915(e). Dkt. No. 6, p. 7. As the amended
complaint only supplements the facts regarding the incident which forms the basis for plaintiff’s
excessive force and unlawful arrest claims, see Dkt. No. 1, p. 5; Dkt. No. 7, pp. 2-3, the Court
likewise concludes that these claims, as amended, survive review under § 1915(e).
B.

Deliberate Indifference

Magistrate Judge Peebles found that the original complaint failed to allege sufficient facts
to state a claim that the defendant police officers were deliberately indifferent to his serious
medical needs. In light of the fact that plaintiff has filed an amended complaint, however, which
adds new allegations regarding the deliberate indifference claim, Magistrate Judge Peebles’
recommendation that the deliberate indifference claim in the complaint be dismissed is now
moot. The Court has therefore considered the sufficiency of the amended complaint, in light of
28 U.S.C. § 1915(e)(2)(B), to determine whether the new factual allegations concerning
deliberate medical indifference cure the deficiencies identified in the Report Recommendation.
After considering the allegations in the amended complaint liberally, with deference to plaintiff’s

3

pro se status, the Court finds that plaintiff has failed to state a claim of deliberate medical
indifference.
In the amended complaint, plaintiff alleges that John Doe #2 “punched [him] in the face;”
that both officers “wrestled [him] to the ground;” and that he was “being choked and told to stop
resisting.” Dkt. No. 7, p. 2. Plaintiff alleges that his “nose was bleeding” and he “was barely
coherent.” Id. Plaintiff alleges that after he was put in the police car he “asked to be taken to the
hospital, not knowing if my nose was broken or not; because it wouldn’t stop bleeding.” Id. He
alleges that the officers ignored him and brought him “straight to the police station.” He alleges
that at the police station he again asked to be brought to the hospital “because my nose was still
bleeding.” Id. Plaintiff states that he was “once again ignored,” but does not identify who at the
police station ignored his request. Plaintiff asserts that the defendants “acted with deliberate
indifference, fully aware of the substantial risk of serious harm exist [sic] at the time of the
incident.” Id. at 3.
A claim of deliberate indifference to serious medical needs has an objective prong and a
subjective prong. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996). As set forth in
Magistrate Judge Peebles’ Report Recommendation, to establish a claim of deliberate medical
indifference, the objective component requires a plaintiff to allege that the deprivation was
“sufficiently serious;” the subjective component requires a plaintiff to allege and that the
defendant “acted or failed to act despite his knowledge of a substantial risk of serious harm.”
Farmer v. Brennan, 511 U.S. 825, 834, 842 (1994); Caiozzo v. Koreman, 581 F.3d 63, 71 (2d
Cir. 2009) (applying Farmer test to pre-trial detainees). Factors that should be considered in
assessing whether a medical need is sufficiently serious include: “(1) whether a reasonable
doctor or patient would perceive the medical need in question as ‘important and worthy of

4

comment or treatment,’ (2) whether the medical condition significantly affects daily activities,
and (3) ‘the existence of chronic and substantial pain.’” Brock v. Wright, 315 F.3d 158, 162 (2d
Cir. 2003) (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)).
Here, plaintiff has not alleged that his nose was broken; nor has he identified any medical
treatment that he needed. Plaintiff did not allege how long his nose was bleeding, or describe
any pain associated with his injury. Thus, even viewing his pro se allegations with leniency, the
allegations fail to allege a serious medical need. See Munlyn v. Pietrie, No. 13-CV-6170FPG,
2014 WL 3695488, at *6, 2014 U.S. Dist. LEXIS 101274, at *16 (W.D.N.Y. July 24, 2014)
(finding that the complaint failed to allege a serious medical condition where only the allegation
was that the plaintiff “was ‘in pain,’” and there were no allegations regarding, among other
things, “the level or extent of the pain . . . any resulting inability to engage in normal activities,
or any harm consequently experienced or likely to occur.”). Further, although plaintiff alleged
that he asked the defendant officers to take him to the hospital because his nose “wouldn’t stop
bleeding,” Dkt. No. 7, ¶ 8, he has not alleged that he told the officers that he was in pain or that
his nose was broken. Thus the complaint, even construed liberally, fails to allege that the
officers were aware that their failure to take plaintiff to the hospital for prompt medical treatment
posed a substantial risk of serious harm to plaintiff. Hathaway, 99 F.3d at 552 (holding that the
subjective component requires that “the charged official must act with a sufficiently culpable
state of mind,” which “is the equivalent of criminal recklessness.”). C.f., Lasher v. City of
Schenectady, No. 02-CV-1395, 2004 WL 1732006, at *5, 2004 U.S. Dist. LEXIS 14870, at *17
(N.D.N.Y. Aug. 3, 2004) (finding evidence that plaintiff’s nose was broken and bleeding for
approximately two hours raised a triable issue of fact regarding a serious medical need); Riles v.
Bannish, No. 3:10-CV-652 (RNC), 2010 WL 3169391, at *4, 2010 U.S. Dist. LEXIS 80920, at

5

*11 (D. Conn. Aug. 11, 2010) (finding allegations that doctor denied pain medication, after
plaintiff complained of excruciating pain, and failed to timely diagnose and treat the plaintiff’s
broken nose were sufficient to state a claim of deliberate indifference). Because it is possible
that plaintiff could state a plausible medical indifference claim, the claim is dismissed with leave
to amend. If plaintiff seeks to amend the complaint, he should note that any amended complaint
will replace the existing complaint, and must be a wholly integrated and complete pleading that
does not rely upon or incorporate by reference any pleading or document previously filed with
the court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994). He should
further note the information provided by Magistrate Judge Peebles in the Report
Recommendation. Dkt. No. 6, pp. 9-10.
C.

Municipal Liability - Monell

A municipality may not be held liable under § 1983 on the basis of respondeat superior.
Monell, 436 U.S. at 694-95. Rather, municipalities are responsible only for “their own illegal
acts,” Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986), and are not vicariously liable for civil
rights violations perpetrated by their employees. See Monell, 436 U.S. at 691. In order to
sustain a §1983 claim for municipal liability, a plaintiff must show that he suffered a
constitutional violation, and that the violation resulted from an identified municipal policy or
custom. Monell, 436 U.S. at 694-695. A municipal policy or custom may be established by any
of the following: (1) a formal policy, officially promulgated by the municipality, id. at 690; (2)
action taken by the official responsible for establishing policy with respect to a particular issue,
Pembaur, 475 U.S. at 483-84; (3) unlawful practices by subordinate officials so permanent and
widespread as to practically have the force of law, City of St. Louis v. Praprotnik, 485 U.S. 112,
127-30 (1985) (plurality opinion); or (4) a failure to train or supervise that amounts to “deliberate

6

indifference” to the rights of those with whom the municipality’s employees interact. City of
Canton v. Harris, 489 U.S. 378, 388 (1989).
Read liberally, the amended complaint appears to allege, under the fourth theory, that the
City of Kingston 2 had a custom or policy of tolerating the use of excessive force and police
misconduct in executing arrests and that it failed to properly train or supervise its officers in
these areas. “A pattern of similar constitutional violations by untrained employees is ‘ordinarily
necessary’ to demonstrate deliberate indifference for purposes of failure to train.” Connick v.
Thompson, 563 U.S. 51, 62 (2011). Here, plaintiff alleges that “Kingston Police Chief, Gilles M.
Larochelle is responsible for teaching his officers the protocol and etiquette when dealing with
civilians in the community.” Dkt. No. 7, ¶ 4. Plaintiff further alleges that the “deliberate and
extreme excessive force, and police brutality, and unlawful arrests” he allegedly suffered “at the
hands of the Kingston Police Department,” Dkt. No. 7, ¶ 10, were not “isolated incident[s],” Dkt.
No. 7, ¶ 9, but rather part of a “patern” [sic] of unconstitutional conduct that has existed in “the
Kingston Police Department from 2012-back to 1995.” Dkt. No. 7, ¶ 10. In addition to his
allegations concerning his October 2012 excessive force and false arrest claims that are the
subject of this action, plaintiff recounts incidents from July 2012 and March 1995 during which
officers from the Kingston Police Department allegedly subjected him to excessive force and
unlawfully arrested him. See, e.g., Dkt. No. 7, ¶ 9 (“The officer grabs my arm and with his other
arm chokes me while another officer puts handcuffs on me”); Dkt. No. 7, ¶ 10 (while laying
down on his “stomach in the mud . . . [t]he officer hits me in the temple area of my head

2

Although not identified in the caption as a defendant, affording plaintiff the solicitude he is due as a pro se litigant,
the Court construes the amended complaint as raising a claim against the City of Kingston. See Gonzalvo v. State of
New York, No. 9:11–cv–0909, 2013 WL 4008881, at *2, 2013 U.S. Dist. LEXIS 108490, at * *6-7 (N.D.N.Y. July
10, 2013) (district court’s authority to substitute defendants in pro se complaint sua sponte is “well supported,”
collecting cases), report and recommendation adopted by Gonzalvo v. State of New York, No. 9:11-cv-0909, 2013
WL 4008881, 2013 U.S. Dist. LEXIS 108403 (N.D.N.Y. Aug. 2, 2013). The Clerk of Court is directed to amend the
caption accordingly.

7

knocking me out. When I wake up the police Rottweiler was ripping my thigh apart on my right
leg”)).” Id. These assertions, read liberally in combination with the facts in the complaint,
sufficiently allege a series of incidents during which City of Kingston police officers subjected
him to excessive force and falsely arrested him to warrant an inference that their conduct was
attributable to inadequate training or supervision amounting to deliberate indifference. See Tyus
v. Newton, No. 3:13-CV-1486 SRU, 2015 WL 1471643, at *11, 2015 U.S. Dist. LEXIS 42089,
at * 29-30 (D. Conn. Mar. 31, 2015) (“In view of the number of alleged unconstitutional traffic
stops, searches, and arrests involving the plaintiff and at least one other individual prior to the
incidents involving the plaintiff, I conclude that the plaintiff has alleged sufficient facts to state a
plausible claim that the City of New London had a custom or policy of tolerating police
misconduct and acted with deliberate indifference by poorly training or supervising its officers
regarding motor vehicle stops, detentions, pat-down and body cavity searches, and arrests”);
Castilla v. City of New York, No. 09 Civ. 5446(SHS), 2012 WL 3871517, at **4–5, 2011 U.S.
Dist. LEXIS 95619, at *12 (S.D.N.Y. Sept. 6, 2012) (denying motion for judgment on the
pleadings regarding municipal liability because plaintiff alleged “a string of incidents in which
she was victimized by multiple officers in multiple locations, both on and off City property” as
well as “various other instances of male police officers taking sexual advantage of females under
their custody or control”)
IV.

CONCLUSION
For these reasons, it is
ORDERED that the amended complaint (Dkt. No. 7) is ACCEPTED AS FILED; and it

is further;

8

ORDERED that the Report Recommendation (Dkt. No. 6) is ADOPTED as it applies to
the amended complaint; and it is further
ORDERED that plaintiff’s Fourteenth Amendment deliberate medical indifference claim
is DISMISSED without prejudice and with leave to amend; and it is further
ORDERED that if plaintiff wishes to file a second amended complaint that correct the
pleading defects identified with respect to his Fourteenth Amendment deliberate indifference
claim, he shall do so within thirty (30) days of the date of this order; and it is further
ORDERED that any second amended complaint plaintiff submits shall be a complete
pleading, which will supersede the amended complaint, and may not incorporate any portion of
the original or amended complaints by reference, in accordance with Local Rule 7.1(a)(4) of the
Local Rules of Practice for this District; and it is further
ORDERED that the Clerk of the Court shall add the City of Kingston as a defendant in
this action and amend the caption accordingly; and it is further
ORDERED that once the City of Kingston has filed an answer, plaintiff must seek,
through discovery, the identity of the Doe defendants; and it is further
ORDERED that upon receipt from plaintiff of the documents required for service of
process, the Clerk of the Court shall issue a summons, together with a copy of plaintiff’s
amended complaint, and forward them to the United States Marshal for service upon the City of
Kingston; and it is further
ORDERED that, after service of process on defendant City of Kingston, it shall file a
response to the amended complaint as provided for in the Federal Rules of Civil Procedure; and
it is further

9

ORDERED that the Clerk of Court shall mail a copy of this Memorandum-Decision and
Order to plaintiff along with copies of the unpublished decisions cited in this decision.
IT IS SO ORDERED.
Dated: January 28, 2016

10

Castilla v. City of New York, Not Reported in F.Supp.2d (2012)
2012 WL 3871517

KeyCite Yellow Flag - Negative Treatment
Distinguished by Norton v. Town of Islip,
E.D.N.Y.,
2016

January 21,

2012 WL 3871517
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Lilian CASTILLA, Plaintiff,
v.
CITY OF NEW YORK, New York City Police
Detective Oscar Sandino, Tax Id # 919673
Individually and as a Detective of New
York City Police Department, and Police
Officers John Doe Officers 1–10, Defendants.
No. 09 Civ. 5446(SHS).
|
Sept. 6, 2012.

Opinion
SIDNEY H. STEIN, District Judge.
*1 Plaintiff Lilian Castilla brings this civil rights action
pursuant 42 U.S.C. §§ 1983 and 1985 against defendants
the City of New York, police detective Oscar Sandino, and
John Doe police officers. She alleges that Sandino, with the
assistance of the John Doe police officers, sexually assaulted
and repeatedly threatened her in violation of the United
States Constitution. The City has moved for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c)
on the grounds that plaintiff fails to state a viable claim for
municipal liability and that she cannot maintain any state law
claims against any defendants. Because Castilla specifically
states that she is not asserting any state claims, (see Pl.'s Mem.
in Opp. at 15), there is no need to dismiss any such claims.
However, plaintiff has stated plausible claims for municipal
liability against the City; accordingly, the City's motion for
judgment on the pleadings is denied.

I. BACKGROUND
Unless otherwise noted, the following facts are drawn from
the Amended Complaint and presumed true for purposes of
this motion.

On February 16, 2008, New York Police Department
(“NYPD”) detective Oscar Sandino and other members of
the NYPD entered Castilla's apartment to execute a search
warrant. (Am.Compl.¶ 14.) Sandino followed Castilla into
a bedroom and then demanded that she strip for him.
(Id. ¶¶ 14–16.)Castilla complied with his demand. (Id. ¶
17.)After questioning Castilla about her boyfriend and his
drug activities and threatening her with the loss of custody of
her children, detective Sandino directed that Castilla and her
boyfriend be taken to the police precinct in separate cars. (Id.
¶¶ 20–21.)
According to Castilla, Sandino and another officer drove
her around Queens, continuing to threaten her with the loss
of custody of her children. (Id. ¶¶ 22–26.)The other officer
eventually got out of the vehicle, at which point Sandino
asked Castilla what she was willing to do to keep her kids
and if she was willing to be “bedded.” (Id. ¶¶ 27–30.)Sandino
ultimately left the vehicle, and two other detectives drove
Castilla to the NYPD's 110th Precinct, where she was held for
an hour or two. (Id. ¶¶ 32–33.)
At the precinct, Sandino brought Castilla into an interrogation
room. (Id. ¶ 35.)While alone with her there, Sandino asked her
answer to his earlier sexual proposition. She demurred, and
he again threatened to take away her kids and also threatened
physical violence. (Id. ¶¶ 43–47.)At one point, another
detective entered the interrogation room. (Id. ¶ 38.)Sandino
and this other detective attempted to recruit Castilla as a
confidential informant by using threats against her children
and referring to a potential “deal” between Castilla and
Sandino. (Id. ¶¶ 38–40.)
Castilla asked to use the bathroom and Sandino took her there.
He allegedly followed her into the bathroom, displayed his
gun, ordered her to undress, and molested and sodomized
her in a stall. (Id. ¶¶ 49–55.)Another officer allegedly helped
Sandino isolate Castilla in the bathroom and remained in
the immediate vicinity of the bathroom while Castilla was
in there with Sandino.(Id. ¶¶ 50, 56.)None of the individual
defendants present at the precinct asked why Sandino was
alone with Castilla in the interrogation room or in the
bathroom, and none of them reported Sandino's activity to
superiors. (Id. ¶¶ 57–59.)
*2 Following this incident at the precinct, according to the
complaint, Sandino repeatedly called and texted Castilla in
order to arrange additional sexual encounters. (Id. ¶¶ 61–
69.)He continued to contact her even after her boyfriend's

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

1

Castilla v. City of New York, Not Reported in F.Supp.2d (2012)
2012 WL 3871517

defense attorney asked him not to do so. (Id. ¶¶ 72–
74.)Sandino also allegedly called Castilla's brother to threaten
removal of her children if she did not return his calls. (Id.
¶¶ 75–78.)Moreover, when an Administration for Children's
Services caseworker was interviewing Castilla at her parents'
apartment on February 19, 2008, Sandino and another officer
showed up. (Id. ¶ 80.)Sandino took Castilla into a room and
tried to intimidate her into staying silent about the sexual
relationship he was pursuing with her. (Id. ¶¶ 83–87.)
In March 2008, Castilla met with the NYPD Internal Affairs
Bureau (the “IAB”) and provided recordings of calls Sandino
had made to her and copies of text messages he had sent her.
(Id. ¶ 88.)The IAB gave her a recording wire for a meeting
with Sandino, which took place on March 11, 2008. (Id. ¶
89.)At their meeting, Sandino was apparently suspicious of
Castilla and made threats.(Id. ¶ 90.)Castilla was so frightened
by Sandino that the IAB “whisked her away.” (Id. ¶ 91.)
According to Castilla, the individual defendants who acted
in concert with Sandino continue to work for the NYPD and
have not faced any charges as a result of their misconduct.
(Id. ¶ 92.)Castilla also alleges that the individual defendants
conspired to obstruct and cover up any investigation of her
claims. (Id. ¶¶ 95–99.)
Castilla commenced this action in 2009. She brings various
civil rights claims against individual officers and municipal
liability claims against the City. The municipal liability
claims are the subject of this motion.
Castilla specifically alleges that the City has a “policy
and practice which provides practically unimpeded control
over female suspects and prospective female confidential
informants, and which fails to explicitly prohibit the use of
sexual dominance and gender exploitative control tactics that
seek to further investigative ends and individual officer[s']
personal prurient desire [s].” (Id. ¶ 12.)She further alleges
inadequate training, supervision, and discipline of officers, as
well as a deeply ingrained “code of silence” regarding police
misconduct of this type. (Id. ¶¶ 126–129.)As a result of these
policies and practices, the City has allegedly “exhibit[ed]
deliberate indifference to the constitutional rights of its
citizens.”(Id. ¶ 125.)
Moreover, according to Castilla, the City “has been
on notice of a significant and pervasive problem of
police officers' use of their position and power to abuse
female suspects, prospective confidential informants, and

confidential informants.”(Id. ¶ 100.)In particular, she claims
that “defendant Sandino had prior incidences of sexual abuse
against females within his custody and control.”(Id. ¶ 13.)She
also refers to various news reports of incidents involving
other police officers who isolated females and then sexually
assaulted them while they were in the custody or control of
those officers.(Id. ¶¶ 105–06, 109.)
*3 In addition, the Court takes judicial notice of the fact
that Sandino pled guilty to two counts of deprivation of
civil rights, one of which arose from events that Castilla
has alleged in this complaint, at least as far as Sandino's
own activities are concerned. In May of this year, Sandino
was sentenced by a federal judge principally to 24 months'
imprisonment for those crimes. (See Judgment in United
States v. Sandino, Cr. 10–331 (E.D.N.Y. May 19, 2010).)
As noted above, the City now moves for judgment on the
pleadings pursuant to Rule 12(c) on the ground that Castilla
has failed to state a claim for municipal liability.

II. DISCUSSION
A. Legal Standard
In deciding a motion under Rule 12(c), courts apply the
same standard that applies on a motion to dismiss a claim
for relief pursuant to Rule 12(b)(6).Burnette v. Carothers,
192 F.3d 52, 56 (2d Cir.1999). Accordingly, a court accepts
the truth of the facts alleged in the complaint and draws all
reasonable inferences in the plaintiff's favor. Global Network
Commc'ns, Inc. v. City of New York, 458 F.3d 150, 154
(2d Cir.2006). A complaint should be dismissed if it fails
to set forth “enough facts to state a claim for relief that is
plausible on its face.”Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007).“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged. The plausibility standard is not akin to
a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”Iqbal, 129
S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556).

B. Municipal Liability
To sustain a claim for relief pursuant to section 1983 against
a municipal defendant, a plaintiff must show (1) the existence
of an officially adopted policy or custom and (2) a causal
connection between the custom or policy and the deprivation
of a constitutional right See Monell v. Dep't of Social Servs.,

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

2

Castilla v. City of New York, Not Reported in F.Supp.2d (2012)
2012 WL 3871517

436 U.S. 658, 694 (1978); Walker v. City of New York, 974
F.2d 293, 301 (2d Cir.1992).
A plaintiff may demonstrate the existence of a policy or
custom in a variety of ways. First, she may provide evidence
of a formal policy officially adopted by the municipality.
Monell, 436 U.S. at 690. Second, a single unconstitutional
act or decision, when taken by an authorized decision-maker,
may be considered a policy and thus subject a municipality to
liability. Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 404–
06 (1997); Pembaur v. City of Cincinnati, 475 U.S. 469, 481–
84 (1986). Third, a policy may be established by showing
that the acts of the municipal agent were part of a widespread
practice that, although not expressly authorized, constitutes a
custom or usage of which a supervising policy-maker must
have been aware. Brown, 520 U.S. at 403–04; City of St. Louis
v. Praprotnik, 485 U.S. 112, 127 (1988); Monell, 436 U.S.
at 690–91. Fourth, where a municipality's failure to provide
adequate training or supervision of its agents rises to the
level of deliberate indifference, section 1983 liability may
lie against the municipality.Brown, 520 U.S. at 407; City of
Canton v. Harris, 489 U.S. 378, 388 (1989); Cash v. Cnty.
of Erie, 09–4371, 2011 WL 3625093, at *7 (2d Cir. Aug. 18,
2011). However, “a single incident alleged in a complaint,
especially if it involved only actors below the policy-making
level, does not suffice to show a municipal policy.”DeCarlo
v. Fry, 141 F.3d 56, 61 (2d Cir.1998) (quoting Ricciuti v. New
York City Transit Auth., 941 F.2d 119, 123 (2d Cir.1991)).

C. Application
*4 Castilla does not claim that the City's liability pursuant to
Monell and its offspring arises from a formal City policy or an
unconstitutional act by an authorized decision-maker. Rather,
she alleges, under the third and fourth theories, a widespread
custom of at least tolerating male police officers' sexual
misconduct, and a failure to train, supervise, and/or discipline
male police officers in connection with their handling female
detainees and informants. Taking plaintiffs' allegations as
true, the Court finds that Castilla has sufficiently pled claims
for Monell liability against the City of New York.
This finding is based, in part, on the Second Circuit's
recognition that “[it] is unlikely that a plaintiff would have
information about the city's training programs or about the
cause of the misconduct at the pleading stage, and therefore
need only plead that the city's failure to train caused the
constitutional violation .”Amnesty Am. v. Town of West
Hartford, 361 F.3d 113, 130 n. 10 (2d Cir.2004). The Second
Circuit has not yet addressed whether Iqbal has heightened

the pleading requirements for such a municipal liability claim,
but district courts in this Circuit have continued, post-Iqbal,
to apply the pleading standard articulated in Amnesty to a
Monell claim based on a failure to train. See Ferrari v. Cnty. of
Suffolk, No. 10 Civ. 4218, 2011 WL 2297125, at *9 (E.D.N.Y.
Jun. 7, 2011); Williams v. City of New York, 690 F.Supp.2d
338, 346 (S.D.N.Y.2010); Michael v.. County of Nassau, No.
09 Civ. 5200, 2010 WL 3237143, at *4 (E.D.N .Y. Aug.
11, 2010). Thus, in assessing the sufficiency of plaintiff's
Monell claims—particularly the failure to train claim—the
Court keeps in mind that plaintiff has not yet had the full
benefit of discovery.
The City's position cannot be ignored. The City contends
that this case simply concerns an isolated incident involving
a single rogue police detective. The City may be right.
However, the alleged facts, taken as true for purposes of
this motion, plausibly suggest otherwise. Plaintiff alleges
that multiple detectives and officers helped Sandino threaten,
abuse, and sexually assault Castilla over many hours and in
many locations, including at a police precinct. The complaint
specifically alleges concerted action by other police officers
in addition to Sandino who were not supervised and at
least not immediately stopped or disciplined. Sandino is
alleged to have continued for weeks after the assault to
contact, proposition, and threaten Castilla. When Sandino
paid Castilla a visit at her family's home, Sandino was
accompanied by another officer. Furthermore, Castilla alleges
that the police officers maintained a “code of silence” to cover
up their misconduct.
In Michael v. County of Nassau, the U.S. district court in
the Eastern District of New York found, on a motion to
dismiss decided under Iqbal, that an informal custom “of
at least tolerating police misconduct” and/or a failure to
properly train police officers could be inferred where the
alleged conduct took place over several hours, including at
police headquarters, and several officers participated in the
repeated denials of the plaintiff's rights. 2010 WL 3237143,
at *4. Castilla, like the plaintiff in the Michael case, alleges a
string of incidents in which she was repeatedly victimized by
multiple officers in multiple locations, both on and off City
property.
*5 More than that, Castilla alleges various other instances of
male police officers taking sexual advantage of females under
their custody or control. In Ferrari v. County of Suffolk, which
was decided after Iqbal, the court allowed a Monell claim
to survive a motion to dismiss in light of allegations of two

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

3

Castilla v. City of New York, Not Reported in F.Supp.2d (2012)
2012 WL 3871517

instances of unconstitutional conduct in addition to plaintiff's
own claim. 2011 WL 2297125, at *9. See also Colon v.
City of New York, Nos. 09 Civ. 8–9, 2009 WL 4263362, at
*2 (E.D.N.Y. Nov. 25, 2009); cf. Cash, 2011 WL 3625093
at *9 (finding that a jury could reasonably conclude that a
single prior complaint of sexual exploitation, in light of prison
guards' duty to protect prisoners, could put a municipality on
notice that its existing policy was insufficient to deter such
misconduct). Although the City challenges the admissibility
of the evidence plaintiff cites as relevant examples of police
misconduct, the Court need not decide that issue at this time.
Finally, the City argues that plaintiffs' allegations do not
demonstrate an unconstitutional policy or custom, but rather
show the opposite: a readiness on the part of the City to
investigate and discipline police officers who misbehave.
In particular, the City points to the IAB's responsiveness
to Castilla's IAB complaint and the fact that Sandino was
ultimately punished for his wrongdoing. While these facts
inure to the City's benefit on this motion, Castilla also alleges
that not all the individual perpetrators have been investigated
and disciplined. In any event, the issue of whether the City
eventually investigates and disciplines employees accused of
misconduct is distinct from whether the City was deliberately
indifferent to the violation of citizens' constitutional rights in
End of Document

the first place. In other words, even if the City took corrective
action, its training and supervision of male officers vis-avis female detainees and informants still may have been
inadequate.
The Court is not evaluating the ultimate merits of plaintiff's
Monell claims here. The Court is simply finding that the
allegations of very serious police misconduct, supported by
adequate facts, raise an inference of municipal liability that is
plausible enough to permit the claims to proceed.

III. CONCLUSION
Accordingly, for the reasons set forth above, the City's
motion for judgment on the pleadings with respect to
Castilla's claims against the City is denied. Plaintiff is entitled
to discovery regarding the City's policies and practices
regarding training, supervision, and discipline in connection
with male officers' handling of female suspects, prospective
confidential informants, and informants.

All Citations
Not Reported in F.Supp.2d, 2012 WL 3871517

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

4

Glaspie v. New York City Dept. of Corrections, Not Reported in F.Supp.2d (2010)
2010 WL 4967844

2010 WL 4967844
Only the Westlaw citation is currently available.
This decision was reviewed by West editorial
staff and not assigned editorial enhancements.
United States District Court,
S.D. New York.
Gordon GLASPIE, Plaintiff,
v.
NEW YORK CITY DEPARTMENT OF
CORRECTIONS, et al., Defendants.
No. 10 CV 00188(GBD)(JCF).
|
Nov. 30, 2010.

MEMORANDUM DECISION AND ORDER
GEORGE B. DANIELS, District Judge.
*1 Pro se Plaintiff Gordon Glaspie filed this suit under
42 U.S.C. § 1983, alleging that Defendants violated his
civil rights by assigning him to a cell block area where
swine flu (H1N1) cases had been discovered. Plaintiff alleged
injuries of mental and emotional stress. Defendants moved
to dismiss Plaintiff's Complaint on two grounds: (1) FED.
R. CIV. P. 12(b)(1) for Plaintiff's failure to exhaust his
administrative remedies; and (2) FED. R. CIV. P. 12(b)(6)
for Plaintiff's failure to state a claim. This Court referred
the motion to Magistrate Judge James C. Francis IV for a
Report and Recommendation (“Report”). Magistrate Judge
Francis recommended that the Defendants' motion to dismiss
for failure to state a claim be granted.
The Court may accept, reject or modify, in whole or in part,
the findings and recommendations set forth within the Report.
28 U.S.C. § 636(b)(1). When there are objections to the
Report, the Court must make a de novo determination of
those portions of the Report to which objections are made.
Id.; see also Rivera v. Barnhart, 432 F.Supp.2d 271, 273
(S.D.N.Y.2006). The district judge may also receive further
evidence or recommit the matter to the magistrate judge with
instructions. SeeFED. R. CIV. P. 72(b); 28 U.S.C. § 636(b)
(1)(c). It is not required, however, that the Court conduct a
de novo hearing on the matter. See United States v. Raddatz,
447 U.S. 667, 676 (1980). Rather, it is sufficient that the

Court “arrive at its own, independent conclusions” regarding
those portions to which objections were made. Nelson v.
Smith, 618 F.Supp. 1186, 1189–90 (S.D.N.Y.1985) (quoting
Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir.1983)).
When no objections to a Report are made, the Court may
adopt the Report if “there is no clear error on the face of the
record.”Adee Motor Cars, LLC v. Amato, 388 F.Supp.2d 250,
253 (S.D.N.Y.2005) (citation omitted).
In his report, Magistrate Judge Francis advised the parties that
failure to file timely objections to the Report would constitute
a waiver of those objections. See28 U.S.C. § 636(b)(1); FED.
R. CIV. P. 72(b). This Court has received no objections to the
Report, and the time to do so has expired.
Magistrate Judge Francis properly determined that Plaintiff
failed to adequately allege a deprivation of “basic human
needs” that was “objectively sufficiently serious.” Plaintiff,
therefore, did not identify conduct constituting an Eighth
Amendment violation for cruel and unusual punishment. See
Farmer v. Brennan, 511 U.S. 825, 834 (1994). In particular,
Magistrate Judge Francis found that: (1) mere exposure to
swine flu does not involve an “unreasonable risk of serious
damage to ... future health”; (2) no residual risk exists because
Plaintiff was moved to a different correctional facility; and
(3) the Amended Complaint lacked factual allegations of an
illness resulting from Plaintiff's exposure or risk of latent
health effects.Helling v. McKinney, 509 U.S. 25, 35–36
(1993); see also Report at 7 (collecting cases). 1
1

As to the Rule 12(b)(1) ground for dismissal, Magistrate
Judge Francis determined that, “because the instant
motion can be determined on other grounds, it need
not be determined whether plaintiff exhausted his
claims.”Report at 3; see42 U.S.C. § 1997e(c)(2);
Woodford v. Ngo, 548 U.S. 81, 85, 101 (2006) (the
“exhaustion requirement is not jurisdictional, and thus
[allows] a district court to dismiss plainly meritless
claims without first addressing what may be a such
more complex question, namely, whether the prisoner
did in fact properly exhaust available administrative
remedies”)

*2
After carefully reviewing the Report and
Recommendation, this Court finds that the Report is not
facially erroneous, and adopts the Report's recommendation
to dismiss all claims against all Defendants. The Defendants'
motion to dismiss is GRANTED.
SO ORDERED:

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

1

Glaspie v. New York City Dept. of Corrections, Not Reported in F.Supp.2d (2010)
2010 WL 4967844

All Citations
Not Reported in F.Supp.2d, 2010 WL 4967844
End of Document

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

2

Gonzalvo v. State of New York, Slip Copy (2013)
2013 WL 4008881

2013 WL 4008881
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Rubin GONZALVO, Plaintiff,
v.
The STATE OF NEW YORK, Defendant.
No. 9:11–CV–0909 (NAM/DEP).
|
Aug. 2, 2013.

REPORT AND RECOMMENDATION
DAVID E. PEEBLES, United States Magistrate Judge.
Pro se plaintiff Ruben Gonzalvo, a New York State prison
inmate, has commenced this action pursuant to the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12131, et seq.,
and section 504 of the Rehabilitation Act (“section 504”), 29
U.S.C. § 794. In his complaint, Gonzalvo generally alleges
that, as a qualified individual with a disability under the ADA,
the defendant, the State of New York, wrongfully denied him
the right to participate in or the benefit from sign language
classes.

Attorneys and Law Firms
Ruben Gonzalvo, Woodburne, NY, pro se.
Hon. Eric T. Schneiderman, Office of the Attorney General,
Cathy Sheehan, Esq, Assistant Attorney General, of Counsel,
Albany, NY, for Defendant.

ORDER
NORMAN A. MORDUE, Senior District Judge.
*1 The above matter comes to me following a Report–
Recommendation by Magistrate Judge David E. Peebles, duly
filed on the 10th day of July 2013. Following fourteen (14)
days from the service thereof, the Clerk has sent me the file,
including any and all objections filed by the parties herein.
After careful review of all of the papers herein, including
the Magistrate Judge's Report–Recommendation, and no
objections submitted thereto, it is
ORDERED that:
1. The Report–Recommendation is hereby adopted in its
entirety.
2. The defendant's motion to dismiss for failure to state a
claim (Dkt. No. 29) is denied.
3. The Clerk of the Court shall serve a copy of this Order upon
all parties and the Magistrate Judge assigned to this case.
IT IS SO ORDERED.

Currently pending before the court is the State of New York's
motion seeking dismissal of plaintiff's complaint based upon
its assertion that the court lacked jurisdiction to sua sponte
deem plaintiff's complaint amended to substitute the State of
New York as the sole defendant. Having carefully reviewed
defendant's motion, I recommend that the motion be denied.

I. BACKGROUND
Plaintiff is a prison inmate who is now being held in the
custody of the New York Department of Corrections and
Community Supervision (“DOCCS”).See generally Compl.
(Dkt. No. 1). At all times relevant to this action, plaintiff
was confined at the Eastern Correctional Facility (“Eastern”),
located in Napanoch, New York. Id. at 6.
Construed liberally, plaintiff's complaint alleges that he
qualifies as a disabled person under the ADA and section 504
because he is deaf or hearing impaired. Compl. (Dkt. No. 1) at
7–10.According to plaintiff, several of the originally named
defendants, all of whom are no longer parties to this action
and are employed by the DOCCS, failed to provide him with
access to participation in sign language classes. Id. at 11–12.It
is alleged that plaintiff is in need of sign language classes in
order to learn “another way of communication.” Id. at 13.

II. PROCEDURAL HISTORY
This action was commenced on August 3, 2011, by the
filing of a complaint and an accompanying application to
proceed in forma pauperis (“IFP”). Compl. (Dkt. No. 1).
Although plaintiff Gonzalvo is the only remaining plaintiff,
the complaint named five other plaintiffs that have now
been dismissed from the case by virtue of a decision and
order issued on May 4, 2012, by District Judge Norman A.

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

1

Gonzalvo v. State of New York, Slip Copy (2013)
2013 WL 4008881

Mordue. Decision and Order (Dkt. No. 11). Additionally, the
complaint named six individual defendants, five of whom
were dismissed following Judge Mordue's initial review of
the complaint. Decision and Order (Dkt. No. 5). Service of
process could not be effectuated with respect to the remaining
defendant, identified in the complaint as “Mr. Williams,”
because he is deceased. Decision and Order (Dkt. No. 22).
Accordingly, Judge Mordue dismissed that defendant from
the action, and sua sponte“deem[ed] the complaint amended
to name the State of New York as the sole defendant.”Id.
Plaintiff's complaint asserts two causes of action, one under
the ADA and another under section 504, but it fails to set forth
a prayer for relief. See generally Compl. (Dkt. No. 1).
*2 On December 19, 2012, in lieu of an answer, defendant
filed a motion seeking dismissal of plaintiff's complaint,
arguing that the court lacked jurisdiction to sua sponte
amend the complaint on behalf of the plaintiff to name the
State of New York as the sole defendant. Def.'s Memo of
Law (Dkt. No. 29–1) at 4–6.Defendant's motion, to which
plaintiff failed to respond, 1 is now ripe for determination,
and has been referred to me for the issuance of a report
and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B)
and Northern District of New York Local Rule 72.3(c).See
alsoFed.R.Civ.P. 72(b).
1

Plaintiff's failure to oppose defendant's motion does not
preclude the court from recommending disposition of its
motion. See, e.g., White v. Mitchell, No. 99–CV–8519,
2001 WL 64756, at *1 (E.D.N.Y. Jan. 18, 2001). Because
a motion to dismiss tests only the legal sufficiency
of a plaintiff's complaint, the court can determine a
complaint's sufficiency as a matter of law based on its
own reading of the complaint and knowledge of the
relevant case law. McCall v. Pataki, 232 F.3d 321, 322–
23 (2d Cir.2000). Before granting an unopposed motion,
however, the court must make a threshold finding that
the moving party has met its burden demonstrating
entitlement to that relief. McCall, 232 F.3d at 323.

III. DISCUSSION
In a decision and order dated September 19, 2012, Judge
Mordue held that, “[i]n light of plaintiff's pro se status, ... the
Court hereby dismisses Williams as a defendant and deems
the complaint amended to name the State of New York as
the sole defendant.”Decision and Order (Dkt. No. 22) at 2.
Judge Mordue explained that, because the proper party to sue
under the ADA and section 504 is either the public entity
responsible for the conduct in dispute, or a public official
acting in his official capacity, the State of New York was

the appropriate entity to substitute following the death of
defendant Williams. Id.; see also, e.g., Parra v. Wright, No.
11–CV–6270, 2011 WL 3608475, at *3 (W.D.N.Y. Aug.
10, 2011). Although defendant argues that the court did
not have jurisdiction to make that substitution, it candidly
acknowledges the absence of any legal authority to support its
position. Def.'s Memo. of Law (Dkt. No. 29–1) at 5. Rather,
defendant simply states that, “[f]or the same reason the
Court lacked the jurisdiction to substitute Williams' with his
successor, the Court lacks jurisdiction to substitute Williams
with the State of New York.”Id.
Having carefully considered defendant's argument, and
conducting my own research on the issue, I find there is
no merit to its argument. Because a claim under the ADA
and section 504 may be commenced against the public
entity responsible for the alleged acts, plaintiff could have
commenced this action against the State of New York from
its inception. Instead, plaintiff opted to commence the action
against a public official, Mr. Williams. Compl. (Dkt. No. 1).
For the sake of judicial efficiency, and in its inherent authority
to manage its docket, the court sua sponte substituted the
State of New York, instead of, for example, issuing an
order directing plaintiff to amend his complaint to name
the State of New York as defendant. The court's authority
to issue such a directive is well supported. See, e.g., Zuk
v. Gonzalez, No. 07–CV–0732, 2007 WL 2163186, at *2
(N.D.N.Y. July 26, 2007) (Scullin, J.) (“[T]o the extent that
Plaintiff has named the individual Defendants in their official
capacities, he has in essence named Onondaga County ...
as a Defendant. Construing Plaintiff's complaint liberally
in light of his pro se status, and in the interest of judicial
economy, the Court will sua sponte substitute Onondaga
County as the sole Defendant in place of the individually
named defendants.”(internal citations omitted)); Dockery v.
Tucker, No. 97–CV3584, 2006 WL 5893295, at *7 (E.D.N.Y.
Sept. 6, 2006) (adding the United States as a defendant, sua
sponte, in a Federal Tort Claims Act claim brought by a pro
se plaintiff); Ciancio v. Gorski, No. 98–CV–0714, 1999 WL
222603, at *1 (W.D.N.Y. Apr. 14, 1999) (substituting, sua
sponte and “in the interest of eliminating undue complication
without affecting the substantial rights of the parties,” the
County of Erie as a defendant where it was unclear that the
plaintiff could sue an individual in his official capacity under
Title VII but well established that the county was a proper
defendant). 2 Accordingly, I recommend that defendant's
motion to dismiss plaintiff's complaint be denied.

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

2

Gonzalvo v. State of New York, Slip Copy (2013)
2013 WL 4008881

2

All unreported decisions have been appended to this
report for the convenience of the pro se plaintiff.
[Editor's Note: Appended decisions deleted for Westlaw
purposes.]

IV. SUMMARY AND RECOMMENDATION
*3 Plaintiff's complaint originally asserted claims under
the ADA and section 504 against six individual defendants.
Following the dismissal of five of those defendants, and
learning that the sixth defendant is deceased, Judge Mordue
substituted the State of New York as the sole defendant. His
authority to sua sponte make that substitution in the interest
of judicial efficiency, and in light of plaintiff's pro se status,
is well supported. For these reasons, it is hereby respectfully

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties
may lodge written objections to the foregoing report. Such
objections must be filed with the clerk of the court within
FOURTEEN days of service of this report. FAILURE
TO SO OBJECT TO THIS REPORT WILL PRECLUDE
APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
6(a), (d); Fed.R.Civ.P. 72; Roldan v. Racette, 984 F.2d 85 (2d
Cir.1993).
It is hereby ORDERED that the clerk of this court serve a
copy of this report and recommendation upon the parties in
accordance with this court's local rules.

All Citations
RECOMMENDED that defendant's motion to dismiss for
failure to state a claim (Dkt. No. 29) be DENIED.
End of Document

Slip Copy, 2013 WL 4008881
© 2016 Thomson Reuters. No claim to original U.S. Government Works.

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

3

Lasher v. City of Schenectady, Not Reported in F.Supp.2d (2004)
2004 WL 1732006

2004 WL 1732006
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Scott W. LASHER, Plaintiff,
v.
THE CITY OF SCHENECTADY, Edward
Ritz, Kenneth Hill, Dan Kane, Yoni Moskow,
Robert W. Glasser, Individually and as Agents,
Servants, and/or Employees and Police Officers
of the City of Schenectady and the City of
Schenectady Police Department Defendants.
No. 02–CV–1395.
|
Aug. 3, 2004.
Attorneys and Law Firms
Castillo & Associates, Albany, NY, for Plaintiff, Gaspar M.
Castillo, Jr., of counsel.
The Tuttle Law Firm, Latham, New York, for Defendant Hill,
James B. Tuttle, of counsel.
Carter, Conboy Law Firm, Albany, NY, for Defendants City
of Schenectady, Ritz, Kane, Mozkow, and Glasser, Louis U.
Gasparini, of counsel.

MEMORANDUM—DECISION and ORDER
MCAVOY, Senior J.
I. INTRODUCTION
*1 Plaintiff Scott W. Lasher (“Plaintiff”) commenced the
instant action pursuant to 42 U.S.C. §§ 1983 and 1988,
asserting claims of excessive force, false arrest, unlawful
imprisonment, malicious abuse of process, denial of prompt
medical care, assault and battery, and violations of his Fourth
and Fourteenth Amendment rights, arising out of his arrest
on January 20, 2002. Presently before the Court are motions
for summary judgment submitted pursuant to FED. R. CIV.
P. 56 by Defendant Kenneth Hill and Defendants City of
Schenectady, Edward Ritz, Dan Kane, Yoni Moskow, and
Robert W. Glasser seeking dismissal of the Complaint in its
entirety.

II. FACTS
On January 20, 2002, Plaintiff and Damien Schon (“Schon”)
were at a bar in downtown Schenectady. Also present at the
bar were Defendants Kenneth Hill (“Hill”) and Edward Ritz
(“Ritz”). At all times relevant hereto, Hill and Ritz were offduty, non-uniformed police officers for the Defendant City
of Schenectady (“the City”). While at the bar, Plaintiff and
Ritz consumed alcohol. Hill stated that he may have drank
alcoholic beverages, but does not recall what he consumed.
Plaintiff and Schon left the bar when it closed at 4:00 a.m.
They entered Plaintiff's Honda sport utility vehicle, drove out
of the parking lot and proceeded past the bar. At the same
time, Hill and Ritz also left the bar and entered Hill's vehicle.
As they began to exit the parking lot, Michael Parisi, the bar
owner, ran towards them. He told Hill and Ritz that a gunshot
emerged from a vehicle as it passed by the bar. Parisi pointed
to Plaintiff's passing vehicle as the source of the shot. 1 Hill
and Ritz then exited the lot and began to follow Plaintiff's
vehicle.
1

Plaintiff contends that as his vehicle passed the bar,
Schon threw a billiard ball from the passenger's side. He
asserts that the sound of the ball hitting the bar's outside
wall was mistaken for a gunshot. There is no dispute,
however, that Parisi reported a gunshot.

Parisi also reported the incident by telephone to the
Schenectady Police Department, describing the vehicle as a
red Blazer (sports utility vehicle). An employee of the bar also
called in a report that a “drive-by” shooting had occurred and
identified the vehicle as a red Blazer or red Rodeo.
After being followed for several blocks, Plaintiff stopped
his vehicle at an intersection near Schenectady Police
Department Headquarters. Hill stopped four to five car
lengths behind Plaintiff and remained in his vehicle with Ritz.
Plaintiff and Schon then exited their vehicle. Plaintiff put
his hand in his jacket in a manner indicating that he had a
weapon. 2 Plaintiff and Schon then returned to their vehicle
and drove away. Hill ran into the police station to report the
incident. Ritz moved into the driver's seat of Hill's vehicle and
continued to follow Plaintiff's vehicle. He eventually stopped
to use a pay phone to contact police dispatch. After five to
ten minutes at the police station, Hill learned that Plaintiff's
vehicle had been located. He and Officer Thomas Kelly left
to go to the scene.

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

1

Lasher v. City of Schenectady, Not Reported in F.Supp.2d (2004)
2004 WL 1732006

2

Plaintiff contends that because he was unaware that the
individuals who were following him were police officers,
he feared their intentions and tried to scare them away by
pretending to have a weapon. Hill and Ritz contend that
they saw two muzzle flashes from gunshots, prompting
Hill to accelerate his vehicle in reverse.

At approximately 4:45 a.m., uniformed officers apprehended
Plaintiff and Schon as they were walking on a sidewalk.
Officer Thomas Harrigan (“Harrigan”) instructed Plaintiff to
get down on the ground. Harrigan then handcuffed Plaintiff
and helped him to stand up. 3 Next, Harrigan and Defendant
Schenectady Police Officer Dan Kane (“Kane”) escorted
Plaintiff to a police car operated by Officer Phillip Feldhaus
(“Feldhaus”) and Defendant Schenectady Police Officer Yoni
Moskow (“Moskow”). Plaintiff asserts that on the way
to the car, a non-uniformed man approached him, asked
“[r]emember me?”, and then punched him in the face, causing
him to bleed profusely. Plaintiff was then seated in the police
car where his nose continued to bleed. No ambulance was
called to the scene.
3

Harrigan does not recall seeing blood or injury to
Plaintiff after Plaintiff stood up.

*2 Officers Hill and Ritz were the only persons employed
by the City of Schenectady Police Department who were not
in uniform on the night in question and who were present at
some point in time at the location where Plaintiff was arrested.
Hill contends that when he arrived at the scene with Officer
Kelly, Sergeant Peters asked him to identify Plaintiff and
advised him that Plaintiff was in the back of a police car. Hill
states that he walked to the police car operated by Feldhaus
and Moskow and identified Plaintiff. Feldhaus and Moskow
state that they never saw Hill approach the car.
Ritz asserts that he stayed at the location of the payphone until
uniformed officers arrived and reported the arrest. He states
that he then drove Hill's vehicle to the scene and remained
in the vehicle while he identified Plaintiff. He contends he
did not exit the vehicle at any time while Plaintiff was
handcuffed.
Plaintiff, who stands 5′11″, states that the man who punched
him was taller than he. According to a Schenectady Police
Department Personal Information Sheet, Ritz is 5′8″ tall. Hill
states that he is 5′10″ tall, however at a deposition held in a
previous action, he testified that he was 6′ tall. At the time
Plaintiff was punched, he was not walking at his full height,

but was “bent over” from the handcuffs connecting his wrists
from the rear.
At approximately 5:06 a.m., Feldhaus and Moskow left with
Plaintiff in custody. Paramedics with the Schenectady Fire
Department arrived at the police station to treat Plaintiff's
injuries at 6:37 a.m. At 4:10 p.m., after he had been released
from custody, Plaintiff received treatment for his injuries at
the hospital. His medical records indicate that he suffered a
“nasal fracture with deformity and obstruction.”Plaintiff also
complained of a chipped lower front tooth and wrist pain.
Plaintiff was eventually charged by Defendant Robert W.
Glasser (“Glasser”), a detective with the Schenectady City
Police Department, for violating New York Penal Law §
120.20, reckless endangerment in the second degree, for
attempting to assault Hill and Ritz with a handgun. The matter
was adjourned in contemplation of dismissal pursuant to N.Y.
CRIM. PROC. § 170.55 (McKinney 2004).
Plaintiff commenced the instant action contending that
Defendants violated his constitutional rights under the
Fourth and Fourteenth Amendments and that he was subject
to excessive force, false arrest, unlawful imprisonment,
malicious abuse of process, denial of prompt medical care,
and assault and battery. Defendants now move to dismiss the
Complaint in its entirety pursuant to FED. R. CIV. P. 56.

III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that summary
judgment is proper when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled
to a judgment as a matter of law.”FED. R. CIV. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In
applying this standard, courts must “ ‘resolve all ambiguities,
and credit all factual inferences that could rationally be
drawn, in favor of the party opposing summary judgment.”
’ Brown v. Henderson, 257 F.3d 246, 251 (2d Cir.2001)
(quoting Cifra v. General Electric Co., 252 F .3d 205,
216 (2d Cir.2001)). Once the moving party meets its initial
burden by demonstrating that no material fact exists for
trial, the nonmovant “must do more than simply show
that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986) (citations omitted). Rather, the
nonmovant “must come forth with evidence sufficient to
allow a reasonable jury to find in her favor.” Brown, 257

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

2

Lasher v. City of Schenectady, Not Reported in F.Supp.2d (2004)
2004 WL 1732006

F.3d at 251 (citation omitted). Bald assertions or conjecture
unsupported by evidence are insufficient to overcome a
motion for summary judgment.Carey v. Crescenzi, 923 F.2d
18, 21 (2d Cir.1991); Western World Ins. Co. v. Stack Oil,
Inc., 922 F.2d 118, 121 (2d Cir.1990).

IV. DISCUSSION
a. False Arrest, Unlawful Search and Seizure, Malicious
Abuse of Process, and Unlawful Imprisonment
*3 Plaintiff asserts claims for false arrest, unlawful search
and seizure, malicious abuse of process, and unlawful
imprisonment. The existence of probable cause is a complete
defense to each of these claims. SeeWeyant v. Okst, 101 F.3d
845, 852–53 (2d Cir.1996) (false arrest under New York
State and federal law, unlawful search and seizure, unlawful
imprisonment); Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir.1994)
(malicious abuse of process); Berman v. Silver, Forrester, &
Schisano, 156 A.D.2d 624, 625 (2d Dep't 1989).
Whether probable cause exists is based upon the totality
of the circumstances. Marshall v. Sullivan, 105 F.3d
47, 54 (2d Cir.1996) (citing Illinois v. Gates, 462 U.S.
213, 231–33 (1983)). It exists when an officer has
“knowledge or reasonably trustworthy information of facts
and circumstances that are sufficient to warrant a person
of reasonable caution in the belief that the person to be
arrested has committed or is committing a crime.”Provost
v.. City of Newburgh, 262 F.3d 146, 157 (2d Cir.2001).“It is
well-established that a law enforcement official has probable
cause to arrest if he received his information from some
person, normally the putative victim or eyewitness.”Martinez
v. Simonetti, 202 F.3d 625, 634 (2d Cir.2000) (quoting
Miroslavsky v. AES Eng'g Soc'y, 808 F.Supp. 351, 355
(S.D.N.Y.1992), aff'd993 F.2d 1534 (2d Cir.1993)). Probable
cause can also exist “even where it is based on mistaken
information, so long as the arresting officer acted reasonably
and in good faith in relying on that information.”Bernard v.
United States, 25 F.3d 98, 102 (2d Cir.1994) (citing Colon
v. City of New York, 60 N.Y.2d 78, 468 N.Y.S.2d 453, 455
N .E.2d 1248 (N.Y.1983)).
In the present case, Hill and Ritz had probable cause to believe
that Plaintiff committed a crime. As they were leaving the
parking lot at the bar, bar owner Michael Parisi ran towards
them and reported that a gunshot had been fired from a
passing vehicle. Parisi identified Plaintiff's vehicle as the
source of the gunshot. Plaintiff contends that Schon threw a
billiard ball from Plaintiff's vehicle, and that Parisi mistook

the sound of the ball striking an outside wall of the bar for
the sound of a gunshot. However, even if Parisi gave Hill
and Ritz mistaken information, there is no evidence that they
had any reason to believe that Parisi's report was mistaken
or erroneous. Thus, because Parisi's information would lead
a person of reasonable caution to believe that a gunshot
emerged from Plaintiff's vehicle, Hill and Ritz had probable
cause to believe that Plaintiff committed a crime.
In addition, the uniformed police officers, namely Kane and
Moskow, had probable cause to arrest Plaintiff. Two phone
calls were received by the Schenectady Police Department
indicating that gunshots had been fired at the bar. The police
department also received a description of a vehicle similar to
Plaintiff's as a source of the shots. In addition, when Hill ran
into Schenectady Police Headquarters, he reported that he saw
“two muzzle flashes” after Plaintiff emerged from his vehicle
and reached into his jacket in a manner indicating that he had
a weapon. Because the totality of information available to
Kane and Moskow would lead a person of reasonable caution
to believe that Plaintiff had committed a crime, Kane and
Moskow had probable cause to arrest Plaintiff.
*4 Plaintiff contends that probable cause was lacking
because both Hill's statement and a similar statement made by
Ritz were false. However, Plaintiff has submitted no evidence
suggesting that the uniformed officers had reason to doubt
the truthfulness of Hill's or Ritz's account of gunshots being
fired at Hill's vehicle or the other reports of a gunshot at the
bar. Thus, Kane and Moskow were permitted to rely on these
reports.
Finally, Plaintiff concedes that Glasser had probable cause
to issue criminal process against Plaintiff. Glasser, relying
on the statements of Hill and Ritz, charged Plaintiff
with violating New York Penal Law § 120.20, reckless
endangerment in the second degree, for attempting to assault
Hill and Ritz with a handgun. Even if the statements of Hill
and Ritz were false, Plaintiff admits that there is no evidence
that Glasser believed them to be false at the time that he filed
the charge. Thus, Glasser had probable cause to file the charge
against Plaintiff.
For the foregoing reasons, Plaintiff's claims for false arrest,
malicious abuse of process, and unlawful imprisonment are
dismissed.

b. Deliberate Indifference to Serious Medical Needs

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

3

Lasher v. City of Schenectady, Not Reported in F.Supp.2d (2004)
2004 WL 1732006

Plaintiff also claims that Defendants denied him prompt
medical care. Claims raised by pre-trial detainees alleging
inadequate or untimely medical attention are to be analyzed
under the Due Process Clause of the Fourteenth Amendment.
SeeRevere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244
(1983). The “standard for analyzing a pre-trial detainee's
Fourteenth Amendment claim is the same as the Eighth
Amendment standard [afforded to inmates].”Bourdon v.
Roney, No. 9:99–CV–0769, 2003 WL 21058177, *10
(N.D.N .Y. March 6, 2003) (citing Revere, 463 U.S. at
244). To survive summary judgment, Plaintiff must “allege
acts or omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs.”Estelle v. Gamble, 429
U.S. 98, 106 (1976); Hathaway v. Coughlin, 37 F.3d 63 (2d
Cir.1994), cert. denied, 513, U.S. 1154 (1995); Davidson v.
Harris, 960 F.Supp. 644, 646 (W.D.N.Y.1997).
The deliberate indifference standard embodies both an
objective and a subjective prong. Hathaway, 37 F.3d at 66.
First, the injury must be, in objective terms, “sufficiently
serious.” Id. (citing Wilson v. Seiter, 501 U.S. 294, 298
(1991). Second, the charged official must act with a
sufficiently culpable state of mind. Id.

1. Serious Medical Need
A serious medical need exists when “the failure to treat a
prisoner's condition could result in further significant injury
or the “unnecessary and wanton infliction of pain.”Chance
v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998) (quoting
Gutierrez v.. Peters, 111 F.3d 1364, 1373 (7 th Cir.1997)).
Conditions that qualify as serious are those of “urgency” that
may result in “degeneration” or “extreme pain.” Hathaway,
37 F.3d at 66. Among the relevant factors in what is a factintensive inquiry are “[t]he existence of an injury that a
reasonable doctor or patient would find important and worthy
of comment or treatment; the presence of a medical condition
that significantly affects an individual's daily activities; or the
existence of chronic and substantial pain.”Chance, 143 F.3d
at 702 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059–60
(9 th Cir.1992)).
*5 Here, there is evidence that Plaintiff's nose was broken
and was bleeding profusely. In addition, Plaintiff complained
that he had a chipped tooth and bruised wrists. Some courts
have held that injuries similar to Plaintiff's are insufficient to
constitute a serious medical need. See,e.g.,Kaup v. DeTella,
No. 98 C 4814, 1999 WL 286288, at *4 (N.D.Ill.1999)
(holding that the plaintiff failed to sufficiently identify a

serious medical need because he alleged only a broken nose
and chipped teeth); Gibson v.. Borough of West Chester, No.
Civ. A. 02–9089, 2004 WL 203175, at *7 (E.D.Pa. Jan. 12,
2004) (finding that the plaintiff was not in such physical
distress as to require emergency medical care after being
punched in the face and sustaining a broken and bloody
nose); Wesson v. Oglesby, 910 F.2d 278, 284 (5 th Cir.1990)
(holding that an inmate's swollen and bleeding wrists from
handcuffing did not constitute serious medical need).
However, in this case, the evidence of the severity and
duration of Plaintiff's nose bleed does not preclude a
conclusion that his condition was sufficiently serious.
Plaintiff's injury was sustained sometime between 4:45 a.m.,
when he was apprehended by the officers, and 5:06 a.m.,
when he was taken from the scene to the police station.
Plaintiff states that his nose was bleeding profusely from
the time he was punched until well after he was in the
police station. Ronald Maslanka, a lieutenant and paramedic
with the Schenectady Fire Department, examined Plaintiff
at the police station at 6:52 a.m. At that time, he observed
that Plaintiff had dried blood around the opening of his
nose. Thus, it could be reasonably concluded that Plaintiff's
nose was bleeding for approximately two hours. Courts have
found similar conditions of profuse bleeding to be actionable.
SeeAldridge v. Montgomery, 753 F.2d 970, 972–73 (11 th
Cir.1985) (one-and-a-half-inch cut over detainee's eye that
was bleeding profusely for two and a half hours was a serious
medical need); Maxy v. Larson, No. 03–C–623–C, 2004 WL
253350, at *3 (W.D.Wis. Feb. 5, 2004) (lacerations on the
plaintiff's head and severe bleeding constituted a serious
medical need). Thus, Plaintiff has raised a triable issue of fact
as to whether his condition was sufficiently serious.

2. Deliberate Indifference
“Deliberate indifference is shown ... by failure to provide
prompt attention to the medical needs of a pre-trial
detainee.”Estelle, 429 U.S. at 105. Delays in treating painful
medical conditions that are not life-threatening can support
Eighth Amendment claims. Gutierrez, 111 F.3d at 1371. A
few hours' delay in receiving medical care for emergency
needs such as broken bones and bleeding cuts may constitute
deliberate indifference. Brown v. Hughes, 894 F.2d 1533,
1538 (11 th Cir.1990).
As previously shown, it could reasonably be concluded that
Plaintiff's bloody nose was left untreated for approximately
two hours. Courts have found that delays of a few hours

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

4

Lasher v. City of Schenectady, Not Reported in F.Supp.2d (2004)
2004 WL 1732006

in treating injuries involving profuse bleeding sufficiently
demonstrate deliberate indifference. SeeAldridge, 753 F.2d
at 972 (one-and-a-half-inch cut over detainee's eye that
was bleeding for two and a half hours was an actionable
delay); Baker v. Dist. of Columbia, No. 2:01CV472, 2002
WL 32539618, at *6 (E.D.Va.2002) (one-hour delay was
reasonable in treating plaintiff's leg injury because plaintiff
was not bleeding or in shock and no bones were broken).
Thus, triers of fact could reasonably conclude that Defendants
acted with deliberate indifference.
*6 For the foregoing reasons, Plaintiff has raised triable
issues of fact as to whether Defendants acted with deliberate
indifference to a serious medical need.

c. Excessive Force
Plaintiff also claims that he was subjected to the excessive
use of force. To establish a claim of excessive force, Plaintiff
must show that the force used by the officer was, in light
of the facts and circumstances confronting him, “objectively
unreasonable” under Fourth Amendment standards. Graham
v. Connor, 490 U.S. 386, 395 (1989); Finnegan v. Fountain,
915 F.2d 817, 821 (2d Cir.1990). The United States Supreme
Court elaborated,
The calculus of reasonableness must
embody allowance for the fact that
police officers are often forced
to make split-second judgments—
in circumstances that are tense,
uncertain, and rapidly evolving—
about the amount of force that is
necessary in a particular situation.
Graham, 490 U.S. at 396–97. The “reasonableness” of a
particular use of force must be judged from the perspective
of a reasonable officer on the scene. Id. at 396.Factors to
consider include: “the severity of the crime at issue, whether
the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest
or attempting to evade arrest by flight.”Finnegan, 915 F.3d
at 823.
There is sufficient evidence in the record from which a fairminded trier of fact could reasonably conclude that the use
of force against Plaintiff was excessive. Plaintiff states that
at the moment he was handcuffed on the ground, he had
no physical injuries. He also states that he was lifted from
the ground to his feet without incident. This is corroborated

by Harrigan, who stated that he saw no blood or injury to
Plaintiff when he stood up after being handcuffed. Kane
and Harrigan then began to lead Plaintiff to a police car.
There is no evidence that, at this point, the circumstances
could be categorized as “tense,” “uncertain,” or “rapidly
evolving.” SeeGraham, 490 U.S. at 396–97. Indeed, there is
evidence in the record that Plaintiff was handcuffed, posed
no physical threat to those surrounding him, and was not
resisting arrest. However, it was under these circumstances
that Plaintiff states that a non-uniformed man approached
and punched him in the face. Such circumstances would not
require a split-second judgment to use force against Plaintiff.
Thus, there is sufficient evidence from which it could be
concluded that Plaintiff was subjected to the excessive use
of force. See,e.g.,Newland v. Achute, 932 F.Supp. 529,
534 (S.D.N.Y.1996) (holding that it could reasonably be
concluded that the defendants used excessive force against
plaintiff who was assaulted by prison guards while he was
handcuffed).

1. Direct Participation
It is well-settled in this Circuit that “personal involvement
of defendants in alleged constitutional deprivations is
a prerequisite to an award of damages under §
1983.”Hernandez v. Keane, 341 F .3d 137, 144 (2d Cir.2003)
(quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885
(2d Cir.1991). A police officer is personally involved in the
use of excessive force if he either: (1) directly participates in
an assault; or (2) was present during the assault, yet failed
to intercede on behalf of the victim even though he had a
reasonable opportunity to do so. SeeRicciuti v. New York City
Transit Auth., 124 F.3d 123, 129 (2d Cir.1997); Anderson v.
Branen, 17 F.3d 552, 557 (2d Cir.1994).
*7 Reasonable jurors could conclude that Hill was a direct
participant in the excessive use of force against Plaintiff.
Plaintiff admits that he cannot say with certainty which
particular officer punched him. However, under the facts and
circumstances of this case, Plaintiff need not establish who,
among the group of officers, directly participated in the attack
because there is sufficient circumstantial evidence from
which the trier of fact could make reasonable conclusions
concerning who, if anyone, struck Plaintiff. SeeSkorupski v.
County of Suffolk, 652 F.Supp. 690, 694 (E.D.N.Y.1987)
(rejecting defendants' argument that they were entitled to
summary judgment because plaintiff cannot specify which
of the officers struck him and finding that all of the officers
were potentially liable because they had an affirmative duty
to intervene).

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

5

Lasher v. City of Schenectady, Not Reported in F.Supp.2d (2004)
2004 WL 1732006

Plaintiff states that he was being escorted to a police car by
Harrigan and Kane when a non-uniformed man approached
him, asked “[r]emember me?”, and then punched him in the
face. The question “[r]emember me?” indicates that the nonuniformed man saw Plaintiff prior to his arrest. In addition, it
could reasonably be concluded that the non-uniformed man
was a police officer because there is no evidence that anyone
else was at the scene or that Harrigan and Kane tried to
prevent anyone from reaching Plaintiff. A trier of fact could
reasonably conclude that Harrigan and Kane would not have
reason to try to keep fellow officers away from Plaintiff.
Moreover, neither Hill nor Ritz was wearing a uniform that
evening; both had seen Plaintiff in a previous encounter that
evening; and both were at the scene sometime after Plaintiff
was handcuffed.
It is uncontested that while Ritz was at the scene, he did not
exit his vehicle at any time while Plaintiff was handcuffed.
Hill states that while he was at the scene, the only time he
saw Plaintiff was when he identified him sitting in back of
the police car operated by Feldhaus and Maskow. However,
Feldhaus and Moskow indicate that they never saw Hill
approach the car.
Plaintiff also states that the man who punched him was taller
than he. According to personnel data, Ritz stands 5′8″ tall. Hill
states that he is 5′ 10″ tall, however he testified in a previous
action that he was 6′ tall. Plaintiff stands 5′11″. As a result of
being handcuffed, he was walking in a “bent over” manner at
the time he was punched. It would be reasonable to conclude
that under Plaintiff's circumstances, a man who stands 5′10″
to 6′ tall would appear taller than him.
Based on the foregoing, a fair minded trier of fact could
reasonably conclude that Hill used excessive force against
Plaintiff.

2. Failure to Intercede
An officer who fails to intercede is liable for the preventable
harm caused by the actions of the other officers where that
officer observes or has reason to know: (1) that excessive
force is being used, seeO'Neill v. Krzeminski, 839 F.2d 9,
11–12 (2d Cir.1988); (2) that a citizen has been unjustifiably
arrested, seeGagnon v. Ball, 696 F.2d 17, 21 (2d Cir.1982);
or (3) that any constitutional violation has been committed by
a law enforcement official, seeO'Neill, 839 F.2d at 11. For
liability to attach, there must have been a realistic opportunity
to intervene to prevent harm from occurring. Seeid. at 11–

12.Whether an officer had sufficient time to intercede or
was capable of preventing the harm being used by another
officer is an issue of fact for the jury unless, considering all
the evidence, a reasonable jury could not possibly conclude
otherwise. Id.
*8 Plaintiff states that the uniformed officers, presumably
Defendants Kane and Moskow, did not try to protect him by
stepping between him and the non-uniformed man. Plaintiff
further claims that the uniformed officers held him while
the non-uniformed man punched him. Defendants contend
that they did not have a realistic opportunity to prevent the
incident. Indeed, the single punch may have occurred without
warning, providing no time for the uniformed officers to
prevent it. See,e.g.,id. at 11 (holding that a police officer
had “no realistic opportunity” to react when the plaintiff was
struck by three blows in rapid succession). However, there is
a triable issue of fact as to whether the uniformed officers held
Plaintiff so that he could be punched or whether they had an
insufficient opportunity to react to an unexpected punch. 4
4

Because it is uncontested that Defendant Ritz did not exit
his vehicle at any time while Plaintiff was handcuffed,
he could not have participated in holding Plaintiff during
the punch. Also, a fair minded trier of fact could only
reasonably conclude that Ritz, who was seated in his
vehicle, did not have a sufficient opportunity to react
to an unexpected punch. Therefore, Plaintiff's claim of
excessive force against Ritz is dismissed.

d. Equal Protection
Plaintiff's complaint also asserts an equal protection violation.
The equal protection clause of the Fourteenth Amendment
directs state actors to treat similarly situated people alike.
Delisser v. Goord, No. Civ. 9:02cv00073, 2003 WL 133271,
at *6 n.8 (N.D.N.Y. Jan. 15, 2003) (citing City of Cleburne,
Texas v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)).“To
prove an equal protection violation, claimants must prove
purposeful discrimination directed at an identifiable or
suspect class.”Id. (citing Giano v. Senkowski, 54 F.3d 1050,
1057 (2d Cir.1995)). Here, Plaintiff offers no evidence that he
was treated differently than similarly situated persons. Thus,
his equal protection claim is dismissed.

e. Qualified Immunity
Defendants next claim that they are entitled to qualified
immunity. As the Second Circuit has explained:

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

6

Lasher v. City of Schenectady, Not Reported in F.Supp.2d (2004)
2004 WL 1732006

We conduct a two part inquiry to determine if an official
is entitled to qualified immunity. The threshold question
is whether, “[t]aken in the light most favorable to the
party asserting the injury, ... the facts alleged show the
officer's conduct violated a constitutional right.”Saucier
[v. Katz], 533 U.S. [194, 201], 121 S.Ct. 2151 [ (2001) ].
Addressing this initial question serves the important role
of providing a clear standard against which officers can
measure the legality of future conduct.... Thus, although we
have under certain circumstances bypassed this first step
and proceeded directly to the qualified immunity inquiry,
that is the exception rather than the rule....
If we determine that the officer's conduct did not violate
a constitutional right, we proceed no further and hold that
the officer is entitled to qualified immunity. SeeSaucier,
533 U.S. at 201. However, if we decide otherwise, we
proceed to “ask whether the right was clearly established”
at the time it was allegedly infringed. Id.“The relevant,
dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he
confronted.”Id. at 202, 121 S.Ct. 2151....
*9 Said differently, if the officer's conduct violated
a right, we analyze the objective reasonableness of the
officer's belief in the lawfulness of his actions.... If the
officer reasonably believed that his actions did not violate
the plaintiff's rights, he is entitled to qualified immunity
even if that belief was mistaken.... However, if his belief
was not objectively reasonable, qualified immunity offers
him no solace and the plaintiff's claims must be allowed to
proceed. SeeHarlow [v. Fitzgerald], 457 U.S. [800, 818–
819 (1982) ].
Loria v. Gorman, 306 F.3d 1271, 1281 (2d Cir.2002).

1. Glasser's and Ritz's Entitlement to Qualified Immunity
Because Glasser and Ritz did not violate Plaintiff's Fourth
Amendment rights, they are entitled to qualified immunity.
Indeed, Glasser had probable cause to issue criminal process
against Plaintiff and Ritz had probable cause to believe that
Plaintiff committed a crime. Even assuming there was a
constitutional violation, reasonable officers could disagree
whether there was probable cause and Defendants Glasser and
Ritz, therefore, are entitled to qualified immunity as to all of
Plaintiff's claims. SeeSaucier, 533 U.S. at 201.

2. Hill's Entitlement to Qualified Immunity
It is clearly established that pre-trial detainees have the right
to be free from excessive force. As previously discussed,
it could be reasonably concluded that Plaintiff's Fourth
Amendment freedom from the use of excessive force was
violated. Thus, the inquiry becomes whether the officers'
belief in the lawfulness of their actions was reasonable.
The facts alleged, taken in the light most favorable to
Plaintiff, demonstrate that Hill used excessive force against
Plaintiff. There is evidence from which it could reasonably
be concluded that Plaintiff was struck without any purpose
other than to inflict pain or cause injury to him. If true, such
actions would be unreasonable and no fair minded trier of fact
could conclude otherwise. SeeGraham, 490 U.S. at 396. Thus,
Defendant Hill is not entitled to summary judgment on the
issue of qualified immunity as to the claim of excessive force.

3. Kane's and Moskow's Entitlement to Qualified
Immunity
Also as previously shown, there are triable issues of fact as
to whether Defendants Kane and Moskow had a reasonable
opportunity to protect Plaintiff from the use of force. If Kane
and Moskow were holding Plaintiff in place while he was
punched, any belief in the lawfulness of their action would
be unreasonable. Thus, Defendants Kane and Moskow are
not entitled to summary judgment on the issue of qualified
immunity as to the claim of excessive force.

f. Municipal Liability Under § 1983
Plaintiff claims that the City established an unwritten custom
of ratifying and authorizing unconstitutional actions of its
employees. SeeHogan v. Franco, 896 F.Supp. 1313, 1319
(N.D.N.Y.1995) (the existence of the policy or custom does
not need to be evidenced by a writing); Poulsen v. City of
North Tonawanda, 811 F.Supp. 884, 896 (W.D.N.Y.1993)
(“[a] municipal policy may be inferred from the informal
acts or omissions of supervisory municipal officials.”).
Specifically, Plaintiff claims that the City failed to properly
train and supervise its officers. He asserts that the City of
Schenectady Police Department established the customs or
practices of utilizing excessive force in arrests and failing
to investigate internal affairs complaints against officers
involved in unconstitutional conduct. 5
5

Plaintiff asserts several other grounds for municipal
liability by listing histories of other alleged
unconstitutional actions by City police officers.

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

7

Lasher v. City of Schenectady, Not Reported in F.Supp.2d (2004)
2004 WL 1732006
However, either the actions are not similar to the actions
of the Defendant officers which reasonable factfinders
could conclude to be unconstitutional or they do not
exemplify constitutional violations.

*10 When subordinate municipal officials are alleged to
have committed a constitutional violation, municipal liability
turns on the plaintiff's ability to attribute the subordinates'
conduct to the actions or omissions of higher ranking officials
with policymaking authority. Amnesty America v. Town of
West Hartford, 361 F.3d 113, 126 (2d Cir.2004). One method
of implicating a policymaking official through subordinates'
conduct is to show that the policymaker was aware of the
subordinates' unconstitutional actions and consciously chose
to ignore them, effectively ratifying the actions. Id. Thus,
where a policymaking official exhibits deliberate indifference
to constitutional deprivations caused by subordinates, such
that the official's inaction constitutes a “deliberate choice,”
that acquiescence may “be properly thought of as a city
‘policy or custom’ that is actionable under § 1983.”City of
Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989) (citations
omitted); seealsoJeffes v. Barnes, 208 F.3d 49, 63 (2d
Cir.2000); Vann v. City of New York, 72 F.3d 1040, 1049 (2d
Cir.1995).
To prove “deliberate indifference,” a plaintiff must
demonstrate that (1) “a policymaker knows ‘to a moral
certainty’ that [his or] her employees will confront a given
situation”; (2) “the situation either presents the employee with
a difficult choice of the sort that training or supervision will
make less difficult or that there is a history of employees
mishandling the situation”; 6 and (3) “the wrong choice by the
[municipality] employee will frequently cause the deprivation
of a citizen's constitutional rights.Walker v. City of New York,
974 F.2d 293, 297–98 (2d Cir.1992) (internal quotations
and citations omitted). Because the failure to properly train
theory and the failure to properly supervise theory emphasize
different facts and require different showings in order to
establish the official's deliberate indifference, they must be
analyzed independently. Amnesty America, 361 F.3d at 127.
6

If there is a history of police officers using excessive
force against citizens, the municipality may then be
required to train officers not to engage in this type of
activity, since the test requires a choice that is either
difficult or frequently mishandled.

1. Failure to Properly Train
A municipality can be liable for failing to train its employees
where it acts with deliberate indifference in disregarding

the risk that its employees will unconstitutionally apply its
policies without more training. City of Canton, 489 U.S.
at 387–90. Plaintiff must identify a specific deficiency in
the city's training program and establish that the deficiency
caused a deprivation of his constitutional rights. Id. at
391.Such evidence is necessary to show that “the officer's
shortcomings ... resulted from ... a faulty training program”
rather than from the negligent administration of a sound
program or other unrelated circumstances. Id. at 390–91.
In the present case, Plaintiff has proffered no evidence of the
City's training program or advanced any theory as to how a
training deficiency caused a deprivation of his rights. He only
concludes that the City failed to train its officers not to engage
in certain unconstitutional acts. Plaintiff offers as evidence a
list of prior felony convictions of City police officers, sworn
testimony regarding the behavior of City police officers, and
case law in which City police officers were found liable for
civil rights violations. However, the factfinder's inferences
of inadequate training and causation must be based on more
than the mere fact that misconduct occurred in the first
place. City of Canton, 489 U.S. at 390–92. “To adopt lesser
standards of fault and causation would open municipalities
to unprecedented liability under § 1983.”Id. Plaintiff has
provided no evidence as to whether the City trained its
officers between the cited incidents, how the training was
conducted, or how better or different training could have
prevented his injury. SeeAmnesty America, 361 F.3d at 130.
Neither has Plaintiff provided evidence tending to rule out
those causes of his injury that would not support municipal
liability, such as the negligent administration of a valid
program, or one or more officers' negligent or intentional
disregard of their training. Seeid;City of Canton, 489 U.S. at
390–91. Therefore, no reasonable trier could conclude that the
City failed to properly train its officers as Plaintiff alleges.

2. Failure to Properly Supervise
*11 In the context of a failure to supervise case,
deliberate indifference may be established by showing that
policymaking officials deliberately ignored an obvious need
for supervision. Vann v. City of New York, 72 F.3d 1040, 1049
(2d Cir.1995). An obvious need may be demonstrated through
proof of repeated complaints of civil rights violations;
deliberate indifference may be inferred if the complaints
are followed by no meaningful attempt on the part of the
municipality to investigate or to forestall further incidents. Id.
When it is claimed that a municipality negligently supervised
its officers in their use of force, the evidence that a number
of claims of police brutality has been made by other persons

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

8

Lasher v. City of Schenectady, Not Reported in F.Supp.2d (2004)
2004 WL 1732006

against the city, together with evidence as to the City's
treatment of these claims, is relevant. Fiacco v. City of
Rensselaer, N.Y., 783 F.2d 319, 328 (2d Cir.1986).
In the present case, Plaintiff has presented triable issues of
fact as to whether the City failed to properly supervise its
officers. Plaintiff cites the prior civil rights actions of John
C. Rodick v. City of Schenectady, et. al., No. 90–cv–0937
(N.D.N.Y.), and DiSorbo, et. al. v. City of Schenectady,
et. al., No. 99–cv–1131 (N.D.N.Y.), in which it was found
that City officers used excessive force against citizens.
Specifically, in DiSorbo, a jury found that Defendant Hill
failed to intervene during another officer's use of excessive
force even though he ultimately was found to be entitled
to qualified immunity. SeeDiSorbo v. Hoy, 343 F.3d 172,
180 (2d Cir.2003). As previously discussed, it could also
be concluded that the Defendant officers engaged in similar
conduct during Plaintiff's arrest. Thus, Plaintiff has presented
sufficient evidence to support the conclusion that there was a
recent history of City officers using excessive force.
In addition, it could also be concluded that City officials
were aware of repeated incidents of officer misconduct and
deliberately failed to take any remedial steps. The claims of
excessive force against City police officers in Rodick and
DiSorbo were commenced in 1990 and 1999, respectively.
This supports a conclusion that the City had notice that its
officers were using excessive force well before the events
in the present case. However, in DiSorbo, the plaintiff
presented evidence from Rodick which showed that the
City took no disciplinary action against officers who used
excessive force. SeeHoy, 343 F.3d at 181. Moreover, Plaintiff
provides circumstantial evidence that ranking members of
the City police department had notice of incidents of
officer misconduct and consciously chose not to take any
disciplinary action. Former Schenectady Police Department
internal affairs officer Eric Yager stated in an affidavit that
he informed Schenectady Police Department Chief Gregory
Kaczmarek that some patrol division officers were entering
End of Document

into investigations without proper training, that the officers
were not following proper procedures and policies, and that
the officers were acting in an illegal manner towards citizens.
Yager stated that Kaczmarek did not believe the information
and refused to open an investigation. Furthermore, former
Schenectady Police Department internal affairs officer Daniel
Johnson stated that the chief requested that complaints
regarding certain officers be referred to assistant chiefs, but
not to Johnson, for investigation. Taking this evidence in
the light most favorable Plaintiff, a fair minded trier of
fact could reasonably conclude that the City had notice
that its officers engaged in illegal activities with citizens,
including the excessive use of force, but exhibited deliberate
indifference by declining to properly investigate or impose
disciplinary measures.

V. CONCLUSION
*12 For the foregoing reasons, Defendants Ritz, Kane,
Moskow, Glasser, and City of Schenectady's motion for
summary judgment is GRANTED IN PART and DENIED
IN PART. Plaintiff's claims of false arrest, unlawful
search and seizure, malicious abuse of process, unlawful
imprisonment, equal protection, and failure to properly train
are DISMISSED as to those Defendants. Plaintiff's claim
of excessive force is dismissed only as to Defendants
Ritz and Glasser. Defendant Hill's motion for summary
judgment is GRANTED IN PART and DENIED IN PART.
Plaintiff's claims of false arrest, unlawful search and seizure,
malicious abuse of process, unlawful imprisonment, and
equal protection are DISMISSED as to Defendant Hill. In all
other respects, Defendants' motions are DENIED.
IT IS SO ORDERED.

All Citations
Not Reported in F.Supp.2d, 2004 WL 1732006

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

9

Munlyn v. Pietrie, Slip Copy (2014)
2014 WL 3695488

2014 WL 3695488
Only the Westlaw citation is currently available.
United States District Court,
W.D. New York.
Justin MUNLYN, Plaintiff,
v.
Correction Officer PIETRIE, Correction
Officer Koon, Correction Officer Newark,
Dr. Adams, Upstate Corr. Fac. 11 Bldg, RN
Wilson, Upstate Corr. Fac. 11 Bldg, Nurse John
Doe, Upstate Corr. Fac. 11 Bldg, Defendants.
No. 13–CV–6170FPG.
|
Signed July 24, 2014.
Attorneys and Law Firms
Justin Munlyn, Attica, NY, pro se.
Hillel David Deutsch, NYS Attorney General's Office,
Rochester, NY, for Defendants.

DECISION AND ORDER
FRANK P. GERACI, JR., District Judge.
I. INTRODUCTION
*1 Pro se Plaintiff Justin Munlyn (“Plaintiff”), an inmate
in the custody of the New York Department of Corrections
and Community Supervision (“DOCCS”), filed a Complaint
on March 29, 2013 against Defendants CORRECTION
OFFICER PIETRIE (“CO.Pietrie”); CORRECTION
OFFICER KOON (“C.O.Koon”); CORRECTION OFFICER
NEWARK (“CO.Newark”); DR. ADAMS (“Dr.Adams”),
Upstate Corr. Fac. 11 Bldg; RN WILSON (“RN Wilson”),
Upstate Corr. Fac. 11 Bldg; and NURSE JOHN DOE (“Nurse
Doe”), Upstate Corr. Fac. 11 Bldg, pursuant to 42 U.S.C.
§ 1983, alleging as the constitutional bases for his claim
cruel and unusual punishment in violation of the Eighth
Amendment and a violation of the Equal Protection Clause
of the Fourteenth Amendment. ECF No. 1. The Complaint
also shows Plaintiff checked the following grounds for his §
1983 action: “Equal Protection,” “Excessive Force,” “Failure
to Protect,” and “Denial of Medical Treatment.” Id. at 5.

Defendants have filed a motion to dismiss the Complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, asserting Plaintiffs failure to state a claim upon
which relief can be granted (ECF No. 10), and Plaintiff has
submitted his Memorandum in Opposition to the Motion
to Dismiss (ECF No. 15). 1 Upon review of this matter,
including to the extent that Plaintiff alleged the checked
claims, and for the reasons set forth herein below, the
Defendants' motion to dismiss the Complaint is hereby
granted.
1

On December 31, 2013, this Court entered an Order
denying Plaintiff's Notice of Motion seeking “an
extension to prepare a request for discovery and a motion
to compel of interrogatories.”ECF No. 17. Subsequently,
due to the pendency of Defendants' Motion to Dismiss
and Plaintiff's timely filed response thereto, the Court
denied Plaintiff's request for discovery pursuant to
Fed.R.Civ.P. 12(b) and Applewhite v. Sheahan, No. 08–
CV–6045–CJS, at *5, 2013 WL 144957 (W.D.N.Y.
January 11, 2013). ECF No. 19.

II. FACTUAL BACKGROUND
The Complaint sets forth two separate claims. The following
allegations comprise the first claim (ECF No. 1, p 6–8):
On February 27, 2012, Plaintiff and other two inmates were
transported from Five Points Correctional Facility (“Five
Points”) to court in Seneca County by C.O. Pietrie, C.O. Koon
and C.O. Newark. Before being transported and after arriving
at the Seneca County Court building, Plaintiff informed them
that his leg braces were on incorrectly. Initially, Plaintiff was
told to “Wait until we feel like changing them,” and at the
Seneca County Court his escort officer “checked them only
with a[n] eyes view,” and told Plaintiff to “sit down.” After
court, again, Plaintiff pleaded to change the direction of his
leg irons, but no change was made. Their attention diverted by
a female officer transporting another inmate and “neglecting
their responsibilities,” CO. Pietrie and CO. Koon directed
Plaintiff, in full restraints, and another inmate to go down
the stairs unattended. As Plaintiff proceeded to do so, the
cuff on the leg iron poked him in the ankle and when he
tried to regain his balance, the chain of the leg iron tripped
his left foot causing him to fall on his back and slide with
another inmate, who tried to help him, down a flight of stairs.
Plaintiff, along with the other inmate, was transported by
ambulance to Geneva Medical Center where Plaintiff was
treated for injuries to his neck, back and right wrist, given
pain medication by injection, a cushion neck brace, a wheel
chair and a cane. Upon his return to Five Points, Plaintiff

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

1

Munlyn v. Pietrie, Slip Copy (2014)
2014 WL 3695488

was seen by a nurse who took his statement for his medical
files. After complaining all night about his pain and making
a written complaint about how he was treated, Plaintiff
was transferred the next morning to Downstate Correctional
Facility (“Downstate”), where Plaintiff was given everything
ordered.
*2 The second claim (ECF No. 1, p 6, 9–11) alleges
that from February 28, 2012 until May 23, 2012, Plaintiff,
then an inmate at Upstate Correctional Facility (“Upstate”),
sent many complaints requesting to be seen by the doctor
for chronic neck, back and wrist pains. Nurse Doe, against
whom Plaintiff had used the grievance procedure, stopped
by his cell, but was disrespectful and denied all requests
to see the doctor. Plaintiff was finally seen once by Dr.
Adams who “has a long history of being unprofessional and
negligent to inmates.”Dr. Adams stated, “He could care less
of my pains” and asked about “my asthma.” At that time,
Doctor Adams ordered officers to “forcefully” take Plaintiff's
neck brace and walking cane, and upon Plaintiff's refusal
and repeated statements that he was in pain, Dr. Adams
denied him permission to see the Upstate physical therapist.
According to Plaintiff, RN Wilson neglected all of Plaintiff's
complaints and stated, “Stop lying your [sic] fine.” “In
result to negligence,” Plaintiff was subsequently transferred
to Clinton Correctional Facility where he was treated and
provided pain medication and, thereafter, transferred to
Auburn Correctional Facility where he is seeing a mental
health specialist and receiving physical therapy to help relieve
pain.

a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Id. at
679.Under this plausibility standard, a complaint must allege
“more than a sheer possibility that a defendant has acted
unlawfully.” Id. at 678.
“[W]ell-pleaded factual allegations” permit a court to
“assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.”Id. at
679.Although Plaintiff's factual allegations set forth in the
Complaint are assumed to be true, this tenet is “inapplicable to
legal conclusions.” Id. at 678.If a plaintiff “ha[s] not nudged
[his/her] claims across the line from conceivable to plausible,
[his/her] complaint must be dismissed.”Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007).“In ruling on a motion pursuant to Fed.R.Civ.P.
12(b)(6), the duty of the court is merely to assess the legal
feasibility of the complaint, not to assay the weight of the
evidence which might be offered in support thereof.”DiFolco
v. MSNBC Cable L.L.C., 622 F.3d 104, 113 (2d Cir.2010).
*3 Where the complaint was filed pro se,“it must be
construed liberally with ‘special solicitude’ and interpreted to
raise the strongest claims that it suggests.”Hogan v. Fischer,
738 F.3d 509, 515 (2d Cir., 2013) (citing Hill v. Curcione,
657 F.3d 116, 122 (2d Cir.2011) (internal quotation marks
omitted)). Notwithstanding this solicitous approach, a pro se
complaint must state a plausible claim for relief. See Harris
v. Mills, 572 F.3d 66, 73 (2d Cir.2009).

III. DISCUSSION

B. 42 U.S.C. § 1983 Claims
Section 1983 does not itself create any substantive rights, but
provides a means by which a person alleging a constitutional

A. Legal Standard for Motion to Dismiss
A court deciding a motion to dismiss a complaint for failure
to state a claim upon which relief can be granted pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure,
“must accept as true all of the allegations contained in a
complaint.”Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009). In order “[t]o survive a motion
to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on
its face.’ “ Id. at 678 (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. The determination regarding
“whether a complaint states a plausible claim for relief ... [is]

violation may bring a claim. 2 (Albright v. Oliver, 510 U.S.
266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (citing
Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689,
61 L.Ed.2d 433 (1979)) (Section 1983, itself, is not “ ‘a
source of substantive rights,’ but merely provides ‘a method
for vindication of federal rights elsewhere conferred.’ ”)).
Thus, to state a claim under § 1983, a person must allege
that a defendant acting under color of state law has deprived
him of a right, privilege, or immunity guaranteed by the
Constitution and laws of the United States. See42 U.S.C.
§ 1983. Here, Plaintiff alleges violations of his Eighth
Amendment rights by excessive force, denial of medical
treatment and failure to protect his safety, and violations of
his Fourteenth Amendment right to equal protection under the
law.

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

2

Munlyn v. Pietrie, Slip Copy (2014)
2014 WL 3695488

2

42 U.S.C. § 1983 provides in relevant part:
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 or other person within
the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress ....

1. Eighth Amendment
The Eighth Amendment explicitly prohibits the infliction of
“cruel and unusual punishment,” U.S. Const. amend. VIII,
and this prohibition includes punishments that “involve the
unnecessary and wanton infliction of pain.”Estelle v. Gamble,
429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)
(quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909,
49 L.Ed.2d 859 (1976)). Inmates “have the right to be free
from the ‘unnecessary and wanton infliction of pain’ at the
hands of prison officials,”Romano v. Howarth, 998 F.2d 101,
104 (2d Cir.1993) (citing Estelle v. Gamble, 429 U.S. at 104)
(quoting Gregg v. Georgia 428 U.S. at 173).

a. Excessive Force
To bring an excessive force claim under the Eighth
Amendment, a plaintiff must allege both an objective element
and a subjective element. Hudson v. McMillian, 503 U.S.
1, 7–8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992); Blyden v.
Mancusi, 186 F.3d 252, 262 (2d Cir.1999). The objective
element is “contextual and responsive to contemporary
standards of decency” and requires a demonstration that ‘the
injury actually inflicted is sufficiently serious to warrant
Eighth Amendment protection.”Hudson v. McMillian, 503
U.S. at 9–10. Thus, the Eighth Amendment “necessarily
excludes from constitutional recognition de minimis uses of
physical force, provided that the use of force is not of a sort
repugnant to the conscience of mankind .”Id. Consequently,
not every malevolent touch by a prison guard gives rise to
a federal cause of action.” Id. (citing Johnson v. Glick, 481
F.2d 1028, 1033 (2d Cir.1973) (“Not every push or shove,
even if it may later seem unnecessary in the peace of a judge's
chambers, violates a prisoner's constitutional rights.”) Yet,
“when prison officials maliciously and sadistically use force
to cause harm, contemporary standards of decency always are
violated .... whether or not significant injury is evident.”Id.
at 9.

*4 The subjective component of an excessive force claim
requires a showing that the defendant “had the necessary
level of culpability, shown by actions characterized by
‘wantonness' “ in view of the particular circumstances
surrounding the challenged conduct. Sims v. Artuz, 230 F.3d
14, 21 (2d Cir.2000) (citing Blyden v. Mancusi, 186 F.3d
at 262) (quoting Wilson v. Setter, 501 U.S. 294, 299, 111
S.Ct. 2321, 115 L.Ed.2d 271 (1991)). Whether conduct in
an excessive force case was “wanton” turns on “whether
force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.”
Hudson v. McMillian, 503 U.S. at 7;see also Blyden v.
Mancusi, 186 F.3d at 262–63.
Assuming, as I must, that the factual allegations of the
complaint are true and interpreting the Complaint to raise
the strongest claims that it suggests, and to the extent
that Plaintiff's allegations suggest an excessive force claim,
I conclude that Plaintiff has failed to state a plausible
claim under the Eighth Amendment. Read liberally, the
Complaint merely alleges the leg irons were placed on
improperly or incorrectly and reflects no allegations that
any force whatsoever was used by the corrections officers
in the placement of the leg irons, or that Plaintiff suffered
harm or physical injury in the placement of the leg
irons. Unlike in Davidson v. Flynn, 32 F.3d 27, 29 (2d
Cir.1994) (complaint alleged too tightly placed restraints,
causing serious and permanent physical injury, were placed
wantonly and maliciously in retaliation for being a litigious
inmate), Plaintiff's allegations are insufficient to meet the
objective standard, and absent from the Complaint are any
allegations from which the necessary subjective component
of “wantonness” may be gleaned. The allegations of excessive
force set forth in this claim fail both prongs of the Eighth
Amendment analysis. To the extent alleged, this claim is
dismissed.

b. Denial of Medical Treatment
Plaintiff also alleges as a constitutional basis for his §
1983 action the denial of medical treatment. ECF No. 1.
Construing Plaintiffs allegations to suggest the strongest
possible arguments, he is alleging a violation of the Eighth
Amendment due to inadequate medical treatment or care by
Upstate medical officials. To establish an Eighth Amendment
claim for inadequate medical treatment or care, a plaintiff
must prove that the defendant(s) acted with “deliberate
indifference to [his] serious medical needs,”Estelle v.
Gamble, 429 U.S. at 104, as distinguished from offering mere
proof of “negligen[ce] in diagnosing or treating a medical

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

3

Munlyn v. Pietrie, Slip Copy (2014)
2014 WL 3695488

condition.”Id. at 106;see also Farmer v. Brennan, 511 U.S.
825, 834–35, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).
This deliberate indifference standard is comprised of
objective and subjective components. Hathaway v. Coughlin,
99 F.3d 550, 553 (2d Cir.1996).“Objectively, the alleged
deprivation must be sufficiently serious, in the sense that
a condition of urgency, one that may produce death,
degeneration, or extreme pain exists.”Id. (internal quotation
marks omitted). Assessment of this objective component
requires a court to determine whether the inmate was actually
deprived of adequate medical care, i.e., in violation of the
prison official's duty to provide reasonable care, and whether
this inadequacy in medical care is sufficiently serious to
have caused or will likely cause harm, if any, to the inmate.
Salahuddin v. Goord, 467 F.3d 263, 279–80 (2d Cir.2006)
(internal citations omitted).
*5 “The objective component of an Eighth Amendment
claim is ... [necessarily] contextual and fact-specific, as such
the serious medical need inquiry must be tailored to the
specific circumstances of each case.”Smith v. Carpenter, 316
F.3d 178, 185 (2d Cir.2003) (internal citation and quotation
marks omitted). Factors considered relevant in determining
the existence of a serious medical condition include “[t]he
existence of an injury that a reasonable doctor or patient
would find important and worthy of comment or treatment;
the presence of a medical condition that significantly affects
an individual's daily activities; or the existence of chronic and
substantial pain.”Chance v. Armstrong, 143 F.3d 698, 702
(2d Cir.1998) (citations omitted). A deprivation of medical
treatment can occur by prisoner officials unnecessarily
delaying or interrupting medical care. See Smith v. Carpenter,
316 F.3d at 185. When the prisoner alleges “a temporary delay
or interruption in the provision of otherwise adequate medical
treatment,” the court addresses its seriousness inquiry to “the
challenged delay or interruption in treatment rather than the
prisoner's underlying medical condition alone.”Id.
“Subjectively, the charged official must act with a sufficiently
culpable state of mind,”i.e., “something more than mere
negligence,” and “the equivalent of criminal recklessness.”
Hathaway v. Coughlin, 99 F.3d at 553. Thus, under the
subjective component, an official acts with the requisite
deliberate indifference when he or she “knows of and
disregards an excessive risk to inmate health and safety;
the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.”Chance v.

Armstrong, 143 F.3d at 702 (quoting Farmer v. Brennan, 511
U.S. at 837). No claim of deliberate indifference under the
Eighth Amendment is stated by “mere allegations of negligent
malpractice.” Estelle v. Gamble, 429 U.S. at 106 (“Medical
malpractice does not become a constitutional violation merely
because the victim is a prisoner. In order to state a cognizable
claim, a prisoner must allege acts or omissions sufficiently
harmful to evidence deliberate indifference to serious medical
needs.”).Id.
Courts have recognized that not every claim of inadequate
medical treatment made by a prisoner states an Eighth
Amendment violation. See Salahuddin v. Goord, 467 F.3d
at 279. It has long been establish that an inmate's “mere
disagreement over the proper treatment does not create
a constitutional claim. So long as the treatment given is
adequate, the fact that a prisoner might prefer a different
treatment does not give rise to an Eighth amendment
violation.”Chance v. Armstrong, 143 F.3d at 703. “The
essential test is one of medical necessity and not one simply
of desirability.”Dean v. Coughlin, 804 F.2d 207, 215 (2d
Cir.1986).
*6 Here, construing the Complaint liberally, Plaintiff has
failed to meet either the objective or the subjective component
requirements of deliberate indifference to his medical needs.
Absent from the Complaint are any allegations which can
be construed as indicating (1) Plaintiff had an urgently,
serious medical condition capable of producing “death,
degeneration, or extreme pain,” and (2) prison medical staff
knew of and disregarded an excessive risk to Plaintiff's
health and safety. Except for stating that he was “in pain,”
the Complaint does not describe the level or extent of
the pain, the particular condition(s) with which the pain
was associated, any resulting inability to engage in normal
activities, or any harm consequently experienced or likely to
occur. Additionally, the Complaint fails to specify the nature
of the complaints made to Nurse Wilson, and the Court must
disregard, as conclusory and nonfactual, Plaintiff's allegation
regarding Dr. Adam's history of negligently treating prison
inmates.
By his allegations, Plaintiff appears to claim that Dr. Adams,
Nurse Wilson and Nurse Doe either did not believe he had
any pain, or disputed the severity of the pain, and acting on
these beliefs, Nurse Doe refused Plaintiff's requests to see
the doctor; Dr. Adams ordered his neck brace and walking
cane taken away, did not permit him to see the physical
therapist; and Nurse Wilson told him to stop lying. These

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

4

Munlyn v. Pietrie, Slip Copy (2014)
2014 WL 3695488

allegations not only fail to show that in doing so, prison
medical officials acted with deliberate indifference, i.e.,“for
the very purpose of causing harm or with knowledge that
harm will result,”Chance v. Armstrong, 143 F.3d at 703,
they reflect Plaintiffs disagreement with their evaluation and
assessment of his medical circumstances. Plaintiff's mere
disagreement over proper medical treatment does not give rise
to a constitutional claim. Id.; see also Arnold v. Westchester
County, 2012 U.S. Dist. LEXIS 12992, at *34–35, 2012
WL 336129 (S.D.N.Y. February 3, 2012) (“Disagreements
over medications, diagnostic techniques, forms of treatment,
the need for specialists, and the timing of their intervention
implicate medical judgments not the Eighth Amendment”)
(citation omitted). This claim is therefore dismissed.

c. Failure to Protect
The Eighth Amendment also imposes duties on prison
officials to “take reasonable measures to guarantee the safety
of the inmates” in their custody.Farmer v. Brennan, 511 U.S.
at 832 (citing Hudson v. Palmer, 468 U.S. 517, 526–27, 104
S.Ct. 3194, 82 L.Ed.2d 393 (1984)). An inmate asserting a
failure to protect claim under the Eighth Amendment must
establish both that the deprivation alleged is sufficiently
serious—imposing a substantial risk of serious harm, id. at
834, and that the defendant acted with a “sufficiently culpable
state of mind”—“ ‘deliberate indifference’ to the inmate's
health and safety.”Hope v. Pelzer, 536 U.S. 730, 738, 122
S.Ct. 2508, 153 L.Ed.2d 666 (2002); Wilson v. Seiter, 501
U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991).
Thus, prison officials are liable for failure to protect inmates
only when they “know[ ] of and disregard[ ] an excessive
risk to inmate health and safety; the official must both be
aware of facts from which the inference could be drawn that
a substantial risk of serious harm exists, and he must also
draw the inference.”Farmer v. Brennan, 511 U.S. at 837. A
prison “official's failure to alleviate a significant risk that
he should have perceived but did not, while no cause for
commendation, cannot ... be condemned as the infliction of
punishment.”Id. at 838.“Eighth Amendment liability requires
more than ordinary lack of due care for the prisoner's
interests or safety.”Id. at 835 (internal quotes omitted).
Significantly, for purposes of analyzing Eighth Amendment
claims, “the Supreme Court has drawn a ‘distinction between
mere negligence and wanton conduct....’ ”Graham v. Poole,
476 F.Supp.2d 257, 260 (W.D.N.Y.2007) (citing Whitley v.
Albers, 475 U.S. 312, 322, 106 S.Ct. 1078, 89 L.Ed.2d 251
(1986)).

*7 Accepting as true, Plaintiff's allegations that the attention
of CO. Pietrie, CO. Koon and CO. Newark was diverted
by a female officer transporting another inmate, and they
“neglected their responsibilities” by permitting him, while
shackled incorrectly, to proceed unescorted down the stairs
and as a result, he slipped and fell down the stairs, sustaining
injuries to his neck, back and wrist, the Complaint, at most,
alleges no more than a simple claim of negligence, which
under well settled law, see Daniels v. Williams, 474 U.S. 327
(1986), does not give rise to a cause of action under § 1983,
even if corrections staff had actual or constructive knowledge
of the danger. See, e.g., Cox v. Nassau County Corr. Ctr.,
2013 U.S. District LEXIS 31622, at *7–8, 2013 WL 831194
(E.D.N.Y. Feb. 15, 2013); Graham v. Poole, 476 F.Supp.2d at
260 (in case concerning prisoner slip-and-all claim, holding
that “[a]lthough plaintiff alleges that defendants were aware
of the dangerous condition of the shower floor and failed to
rectify it, that amounts to nothing more than negligence, and
is not enough to establish an Eighth Amendment claim”).
Even if C.O. Pietrie, C.O. Koon and C.O. Newark actually
or constructively knew of the danger, Plaintiff has failed to
state an Eighth Amendment claim in that he has alleged no
facts showing that they consciously disregarded an excessive
risk to his health or safety. In the absence of allegations that
these corrections officers displayed deliberate indifference to
his health or safety, this claim is dismissed.

d. Denial of Equal Protection
Lastly, the Complaint alleges, in cursory fashion and
without elaboration, a violation of the Equal Protection
Clause of the Fourteenth Amendment. ECF No. 1. To
state a viable equal protection claim under the Fourteenth
Amendment, “a plaintiff generally must allege either
‘purposeful discrimination ... directed at an identifiable or
suspect class,’ “ Barnes v. Fedele, 760 F.Supp.2d 296, 301
(W.D.N.Y. January 13, 2011) (quoting Giano v. Senkowski,
54 F.3d 1050, 1057 (2d Cir.1995)) (citing McCleskey v.
Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 95 L.Ed.2d 262
(1987)), or that he or she “has been intentionally treated
differently from others similarly situated, with no rational
basis for the difference in treatment.” Id. (citing Village of
Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145
L.Ed.2d 1060 (2000)) (per curiam).
Upon even the most liberal reading, the Complaint asserts
no set of facts from which to construe the occurrence of the
claimed Equal Protection violation. For this reason, the claim
must be dismissed.

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

5

Munlyn v. Pietrie, Slip Copy (2014)
2014 WL 3695488

IV. CONCLUSION
I conclude that Plaintiff has failed to nudge any of his claims
“across the line from conceivable to plausible,”Bell Atlantic
Corp. v. Twombly, 550 U.S. at 570, and the Complaint filed
in Case No. 13–CV–6170 must be dismissed. Defendants'
motion to dismiss (ECF No. 10) is granted. The Clerk of

the Court is hereby directed to dismiss the Complaint and,
accordingly, close this case forthwith.
*8 IT IS SO ORDERED.

All Citations
Slip Copy, 2014 WL 3695488

End of Document

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

6

Riles v. Bannish, Not Reported in F.Supp.2d (2010)
2010 WL 3169391

2010 WL 3169391
Only the Westlaw citation is currently available.
United States District Court,
D. Connecticut.
Daniel RILES, Plaintiff,
v.
Daniel BANNISH, et al., Defendants.
No. 3:10–CV–652(RNC).
|
Aug. 11, 2010.
Attorneys and Law Firms
Daniel A. Riles, Jr., Somers, CT, pro se.

INITIAL REVIEW ORDER
ROBERT N. CHATIGNY, District Judge.
*1 Plaintiff, an inmate at Northern Correctional Institution,
brings this action pro se pursuant to 42 U.S.C. §§
1983, 1985(3), and 1986 against sixteen employees of the
Department of Correction (“DOC”), as well as a Connecticut
state trooper, all of whom are sued in their individual
capacities only. The complaint claims damages for assault,
conspiracy, deliberate indifference to serious medical needs
and intentional infliction of emotional distress. Under 28
U.S.C. § 1915A, the Court must review the complaint and
dismiss any part of it that fails to state a claim on which relief
can be granted. 1
1

The caption of the complaint includes as defendants
Dr. Rutherford and Dr. Miranda, but neither of them is
mentioned in the body of the complaint. Accordingly,
the complaint against them will be dismissed without
prejudice for failure to state a claim on which relief can
be granted.

I. The Complaint
The complaint alleges the following. On March 17, 2008,
the plaintiff was assaulted at Northern by Correction Officer
(“CO”) Michael Blue. A surveillance camera recorded the
assault on videotape. As a result of the assault, the plaintiff
sustained fractures of his left and right nasal bones. CO
Carl Badeau, who witnessed the assault, ran up to Blue and
remarked that he was going to have to “say something good.”

They agreed to falsely claim that the plaintiff had tried to spit
on Blue.
Plaintiff was taken to the medical unit at Northern, where
defendant Paul Wilbur, a nurse in the medical unit, gave him
an ice pack for his nose. No x-ray was taken. 2 While in the
medical unit, plaintiff complained to defendants Robert Ames
and Ned McCormick, both supervisors on duty at the time,
that Blue had assaulted him. They assured the plaintiff that his
complaint would be investigated and Ames took photographs
of the plaintiff's face and head. As a result of DOC's
investigation, plaintiff's complaint was substantiated and
disciplinary action was taken against Blue. No disciplinary
proceeding was initiated against the plaintiff, however.
2

A medical incident report prepared by Nurse Wilbur
contains the following “assessment” of the plaintiff's
condition: “Alert and oriented X3, gait steady, small
amount of blood left nostril, no active bleeding noted,
neuro signs intact, nose midline with slight edema right
side. No other injury noted.”

Plaintiff wrote to the Connecticut State Police reporting the
assault. Defendant Bissaillon, a state trooper, took a statement
from the plaintiff. Bissaillon told the plaintiff that he had
viewed the videotape of the incident and spoken with Blue
and Badeau. According to the plaintiff, Bissaillon stated that
he had agreed not to arrest Blue and that the plaintiff would
be arrested if he “pushed the issue.”
On March 18, 2008, the day after the assault, the plaintiff
submitted a sick call request to the medical staff at Northern
stating that he was in pain. He requested pain management
and an x-ray of his nose. Six days later, on March 24, 2008,
he was seen by Dr. Carson Wright, a physician at Northern.
Plaintiff told Dr. Wright that he was in excruciating pain and
believed his nose was broken. Dr. Wright ordered an x-ray
of the plaintiff's nose, but failed to provide the plaintiff with
pain medication, allegedly telling him to “man-up” and “take
the pain.”
On April 7, 2008, an x-ray was taken of the plaintiff's nose. A
report of the results was returned to the medical unit two days
later. The report contains the following findings: “multiple
nose fractures of the right and left nasal bone, mildly
displaced.”The medical unit did not inform the plaintiff of
the results of the x-ray or provide him with any additional
treatment.

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

1

Riles v. Bannish, Not Reported in F.Supp.2d (2010)
2010 WL 3169391

*2 In early May 2008, the plaintiff submitted another sick
call request. He stated that he was still in pain, his sense of
smell was gone, and his ability to taste was diminishing. On
June 23, he was seen by Dr. Wright. On that date, Dr. Wright
informed him of the x-ray results. According to the plaintiff,
he caught Dr. Wright attempting to make a false entry in the
chart. When questioned about this, Dr. Wright allegedly told
the plaintiff, “I fucked up.”
On June 29, 2008, plaintiff submitted an “inmate
administrative remedy form” complaining about Dr. Wright's
failure to provide adequate care for his broken nose and
requesting to be seen by an outside doctor.
On July 21, Dr. Wright submitted a request to the Utilization
Review Committee (“URC”), headed by defendant Mark
Buchanan, asking that the plaintiff be checked by an ear,
nose and throat specialist (“ENT”). In his request, Dr. Wright
stated that the plaintiff was complaining about losing his
ability to smell and taste food, that Dr. Wright had spoken
with an ENT about this, and that the ENT had recommended
that the plaintiff be seen by a specialist. Dr. Wright received
no response from the URC. According to the complaint, Dr.
Wright followed up with additional requests for the plaintiff
to be seen by an ENT but these requests also were ignored.
In September 2008, plaintiff began to have recurring
nosebleeds from his right nostril, which worsened over time.
He informed medical staff at Northern. Defendant Wendy
Sanders, a staff nurse, told him the nosebleeds were a normal
reaction to temperature change within the unit and should be
addressed by drinking fluids. To stop the nosebleeds, medical
staff packed the plaintiff's nose with gauze and instructed him
to do the same. The individuals who did this are not identified
in the complaint. After using the nose packs, the plaintiff
developed a severe nasal infection.
On December 12, 2008, Dr. Wright submitted another request
to the URC asking that the plaintiff be seen by an ENT. On
December 22, the URC denied the request. Plaintiff signed
the denial from the URC on December 29, 2008. That same
day, he filed a grievance complaining that the URC had failed
to act on the requests submitted by Dr. Wright. On January
20, 2009, defendant Sanders denied the grievance, informing
the plaintiff that he should speak with Dr. Wright regarding
his concerns and sign up for sick call as needed.

On August 14, 2009, Dr. Wright submitted another request to
seeking approval for an ENT consult. This request was denied
on September 15, 2009.
In October 2009, the plaintiff was examined by Dr. Syed
Naqvi. Dr. Naqvi indicated that the nose packs used to stop
the plaintiff's nosebleeds had been counterproductive in that
they had caused the plaintiff's nasal infection and increased
the bleeding. The doctor also indicated that a “smell test”
administered to the plaintiff by Northern medical staff would
not have aided in the diagnosis and treatment of his condition.
*3 Plaintiff claims that as a result of the defendants'
unconstitutional acts and omissions, he continues to suffer
recurring nosebleeds, can no longer smell or taste food and
has “developed an ailment that will require his nose to be rebroken in order to be straightened.” 3
3

The nature of the “ailment” allegedly requiring that the
plaintiff's nose be re-broken is not alleged.

II. Analysis
A. § 1983 Excessive Force Claim
Accepting the allegations of the complaint as true, they are
sufficient to state a claim for compensatory and punitive
damages against Blue under § 1983 for use of excessive force
in violation of the Eighth Amendment.

B. Conspiracy Claims Under §§ 1983 and 1985(3)
To adequately plead a conspiracy claim under § 1983,
the plaintiff must allege facts showing that the defendants
reached an agreement to violate one or more of his substantive
constitutional rights and that he was actually injured as
a result. To adequately plead a conspiracy claim under
§ 1985(3), he must further allege that the defendants'
misconduct was racially motivated. Plaintiff's allegations do
not satisfy these requirements.
The complaint alleges that Blue and Badeau conspired to
falsely accuse the plaintiff of trying to spit on Blue. Filing
a false charge of misconduct against a prisoner does not
in itself violate a constitutional right.Freeman v. Rideout,
808 F.2d 949, 951–52 (2d Cir.1986)(“The prison inmate
has no constitutionally guaranteed immunity from being
falsely or wrongly accused of conduct which may result in
the deprivation of a protected liberty interest.”). Moreover,
the complaint expressly alleges that the plaintiff was never

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

2

Riles v. Bannish, Not Reported in F.Supp.2d (2010)
2010 WL 3169391

disciplined as a result of the defendants' false statements. This
claim is therefore dismissed without prejudice for failure to
state a claim on which relief can be granted.
The complaint alleges that Ames and McCormick conspired
to deprive the plaintiff of photos of pooled blood at the scene
of the assault, which would help support a claim against Blue.
The substantive constitutional right at issue here appears to
be the right of access to courts. See Bounds v. Smith, 430
U.S. 817, 821–23 (1977); Morello v. James, 810 F.2d 344,
347 (2d Cir.1987). To allege a violation of this right, the
plaintiff must allege that the defendants intentionally took
action to obstruct or impede his ability to pursue a claim
against Blue resulting in actual prejudice to his legal position.
See Monsky v. Moraghan, 127 F.3d 243, 247 (2d Cir.1997);
Duff v. Coughlin, 794 F.Supp. 521 (S.D.N.Y.1992). Plaintiff's
allegation that Ames and McCormick conspired against him
is implausible, particularly in light of the allegations of the
complaint showing that the assault was recorded on videotape
and Ames took photos of the plaintiff's face and head.
Moreover, there is no allegation that the absence of photos
of the scene has caused the plaintiff any actual prejudice.
For these reasons, the claim against Ames and McCormick
is dismissed without prejudice for failure to state a claim on
which relief can be granted.
*4 The complaint alleges that Bissaillon conspired with
Blue and others to deprive him of “the pursuit of justice
through the criminal division.”This claim appears to be based
solely on Bissaillon's failure to take steps to have Blue
prosecuted for assault. 4 Generally, a person is not entitled to
sue a state official based solely on the nonprosecution of a
criminal suspect. See Thompson v. Grey, 2009 WL 2707397,
(E.D.N.Y. Aug. 26, 2009), aff'd, 2010 WL 2836637 (2d Cir.
July 20, 2010). Accordingly, this claim is dismissed without
prejudice for failure to state a claim on which relief can be
granted.
4

Plaintiff does not allege that he is in danger of sustaining
personal injury in the future as a result of Bissaillon's
alleged agreement not to arrest Blue. See Inmates of
Attica Correctional Facility v. Rockefeller, 477 F.2d
375, 378 (2d Cir.1973); see also Okin v. Village of
Cornwall–)n–Hudson Police Dept., 577 F.3d 414 (2d
Cir.2009).

C. Deliberate Indifference Claims
Plaintiff alleges that numerous individuals were deliberately
indifferent to his serious medical needs in violation of the

Eighth Amendment. A person is deliberately indifferent if
he is aware of a serious medical need, and fails to provide
treatment, consciously disregarding a substantial risk of
serious harm. Farmer v. Brennan, 511 U.S. 825, 834, 837
(1994). This state of mind is the “equivalent of criminal
recklessness.” Hathaway v. Coughlin, 99 F.3d 550, 553
(2d Cir.1994). Generally, “mere allegations of negligent
malpractice do not state a claim of deliberate indifference.”Id.
Viewed in a light most favorable to the plaintiff, the
allegations against Dr. Wright are sufficient to state a claim
of deliberate indifference. According to the complaint, Dr.
Wright responded to plaintiff's complaints of excruciating
pain and his specific request for “pain management” by
telling him to “man-up” and “take the pain.” These allegations
are sufficient to withstand review under § 1915A because
the plaintiff may be able to prove that the failure to
provide him with pain medication amounted to deliberate
indifference. See Dulany v. Carnahan, 132 F.3d 1234,
1244 (8th Cir.1997)(callous comments can be evidence of
deliberate indifference). In addition, the complaint alleges
(expressly or by reasonable implication) that Dr. Wright
failed to properly diagnose and treat the plaintiff's broken
nose in a timely manner even though the injury and need for
treatment were obvious. These allegations also are sufficient
at this stage, especially in view of Dr. Wright's alleged
comments to the plaintiff. Accordingly, the action will
proceed against Dr. Wright. 5
5

Whether the allegations of the complaint are sufficient
to support a claim for deliberate indifference against
Dr. Wright with regard to the plaintiff's other medical
problems (i.e. his recurring nosebleeds and alleged loss
of the ability to taste and smell) is an issue that need
not be addressed at this time and is better left until
the plaintiff has the assistance of appointed counsel,
which he has requested. By separate order, his request
for appointed counsel will be granted.

The allegations of the complaint also are sufficient to state a
claim for deliberate indifference against defendant Buchanan,
head of the URC. According to the complaint, the URC
ignored repeated requests by Dr. Wright that the plaintiff
be seen by an ENT. These requests were based on the
recommendation of an ENT, with whom Dr. Wright had
spoken regarding the plaintiff's symptoms. The complaint,
construed favorably to the pro se plaintiff, implicitly alleges
that Buchanan was aware of Dr. Wright's repeated requests
and failed to act due to deliberate indifference.

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

3

Riles v. Bannish, Not Reported in F.Supp.2d (2010)
2010 WL 3169391

The allegations of the complaint fall short of supporting
a deliberate indifference claim against Nurses Wilbur and
Sanders. The complaint charges these defendants with “gross
incompetence.” But there is no allegation of an act or failure
to act on the part of either of them evincing conscious
disregard of a substantial risk of serious harm to the
plaintiff's health. Both attempted to provide treatment for
the plaintiff's symptoms and, although there were some
delays in responding to his complaints, neither of them
ignored his medical needs. See Demata v. New York State
Correctional Dep't of Health Services, 1999 WL 753142, at
*2 (2d Cir. Sept. 17, 1999)(“Although a delay in providing
medical care may in some cases constitute deliberate
indifference, this Court has reserved such classification for
cases in which, for example, officials deliberately delayed
care as a form of punishment; ignored a life-threatening
and fastdegenerating condition for three days; or delayed
major surgery for over two years.”)(internal citations and
quotations omitted). Importantly, in contrast to Dr. Wright,
there are no allegations of callousness on the part of Wilbur
or Sanders. 6 Accordingly, the deliberate indifference claim
against them is dismissed without prejudice for failure to state
a claim on which relief can be granted.
6

The allegation that nose packs should not have been
used to stop the plaintiff's nosebleeds does not support
a deliberate indifference claim against Nurse Wilbur
or Nurse Sanders because there is no allegation that
either of them used or instructed the plaintiff to use nose
packs and, in any event, improper use of nose packs
would not amount to deliberate indifference. The same
is true of the allegations regarding the use of an incorrect
“smell test” (i.e. there is no indication that either of these
defendants was involved in the test and the use of an
incorrect would not constitute deliberate indifference in
any case). The allegation that Nurse Sanders denied the
plaintiff's medical grievance concerning the URC's delay
in responding to Dr. Wright's requests for a consult with
an ENT also fails to support a claim against her. As
she noted in the written denial, the plaintiff was being
followed by Dr. Wright at that time.

*5 The allegations of the complaint also are insufficient to
state a claim for deliberate indifference against defendants
Bannish, Marcial, Hicock, Fury, Weiskopf and LaPalme. The
complaint lumps these defendants together and asserts that
they supported a policy designed to encourage incompetence
on the part of medical staff. A prison official who is
personally responsible for creating or maintaining a policy of
deliberate indifference may be subject to liability, Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir.1995), but the allegation

of such a policy must be more than merely conclusory.
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1951, 173 L.Ed.2d 868
(2009). 7
7

With the exception of Bannish and LaPalme, there
are no allegations that these defendants were aware of
the plaintiff's injury or involved in his treatment. To
the extent Bannish and LaPalme were made aware of
plaintiff's health concerns, documents attached to the
complaint indicate that they did not ignore plaintiff's
concerns but relayed them to Dr. Wright.

D. Intentional Infliction of Emotional Distress
The complaint includes a claim for intentional infliction of
emotional distress under § 1983. There is no recognized
cause of action under section 1983 for intentional infliction
of emotional distress. Accordingly, this claim is dismissed
without prejudice for failure to state a claim on which relief
can be granted.

III. Orders
In accordance with the foregoing analysis, the Court enters
the following orders:
(1) All claims against defendants Badeau, Ames,
McCormick, Bissaillon, Wilbur, Sanders, Bannish, Marcial,
Hicock, Fury, Weiskopf, LaPalme, Rutherford and Miranda
are hereby dismissed without prejudice for failure to state a
claim on which relief can be granted.
(2) The claims for damages against defendants Blue, Wright
and Buchanan in their individual capacities will proceed. No
other claim or defendant will be included in the case unless
a motion to amend filed in compliance with Federal Rule of
Civil Procedure 15 is granted by the Court.
(3) Within ten (10) business days of this order, the Clerk
will verify the current work addresses for defendants Blue,
Wright and Buchanan and mail a waiver of service of process
request packet to each in his individual capacity at his current
work address. If any of these defendants fails to return the
waiver request, the Clerk will make arrangements for inperson service by the U.S. Marshal and that defendant will be
required to pay the costs of such service in accordance with
Federal Rule of Civil Procedure 4(d).
(4) The Pro Se Prisoner Litigation Office will send a courtesy
copy of the complaint and this order to the Connecticut

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

4

Riles v. Bannish, Not Reported in F.Supp.2d (2010)
2010 WL 3169391

Attorney General and the Department of Correction Legal
Affairs Unit.
(5) The Pro Se Prisoner Litigation Office will send written
notice to the plaintiff of the status of this action along with a
copy of this order.
(6) Defendants will file their response to the complaint, either
an answer or motion to dismiss, within seventy (70) days
from the date of this order. If the defendants choose to file an
answer, they will admit or deny the allegations and respond to
the cognizable claims recited above. They may also include
any and all additional defenses permitted by the Federal
Rules.
(7) Discovery, pursuant to Federal Rules of Civil Procedure
26 through 37, will be completed within seven months (210
End of Document

days) from the date of this order. Discovery requests need not
be filed with the court.
*6 (8) All motions for summary judgment will be filed
within eight months (240 days) from the date of this order.
(9) Pursuant to Local Civil Rule 9(a), a nonmoving party must
respond to a dispositive motion within twenty-one (21) days
of the date the motion was filed. If no response is filed, or the
response is not timely, the dispositive motion may be granted
absent objection.
So ordered.

All Citations
Not Reported in F.Supp.2d, 2010 WL 3169391
© 2016 Thomson Reuters. No claim to original U.S. Government Works.

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

5

Tyus v. Newton, Not Reported in F.Supp.3d (2015)
2015 WL 1471643

2015 WL 1471643
Only the Westlaw citation is currently available.
United States District Court,
D. Connecticut.
Gerjuan TYUS, Plaintiff,
v.
Roger NEWTON, et al., Defendants.
No. 3:13–cv–1486(SRU).
|
Signed March 31, 2015.
Attorneys and Law Firms
Gerjuan Tyus, Somers, CT, pro se.
Elliot B. Spector, David C. Yale, Hassett & George, P.C.,
Simsbury, CT, Jonathan Zellner, John Wade Cannavino,
Jr., Ryan Ryan Deluca, LLP, Stamford, CT, Karen Folster
Lesperance, U.S. Attorney's Office, Albany, NY, for
Defendants.

RULING ON NEW LONDON
DEFENDANTS' MOTION TO DISMISS
STEFAN R. UNDERHILL, District Judge.
*1 Gerjuan Tyus is currently incarcerated at Northern
Correctional Institution in Somers, Connecticut. In October
2013, in both this Court and the Connecticut Superior Court
for the Judicial District of New London, Tyus filed a civil
rights action against defendants Roger Newton, City of New
London, County of New London, City of New London
Police Department, Chief of New London Police Department
Margaret Ackley, Lieutenants Brian Wright and Todd
Bergeson, Sergeants Christina and Kevin McBride, Officers
Todd Lynch, Zelinski, Timothy Henderson, Liachenko,
Marcaccio, Pelchat, Melissa Schafranski, Darrin Omara
and Lamontagne, and Bureau of Alcohol, Tobacco and
Firearms (“ATF”) Agents Wheeler, Scott Riordan, Robert
Harrison, Dennis Turman and Guy Thomas. On November
19, 2013, the defendants removed the state-court action to
this Court. (See Tyus v. City of New London, et al., Case No.
3:13cv1726(SRU), Pet. Removal, Doc. No. 1.)
On January 6, 2014, I granted a motion to consolidate the
present case with the action that had been removed to this

Court by the defendants, Tyus v. City of New London, et al.,
Case No. 3:13cv1726(SRU). The present case is the lead case
and the member case, Tyus v. City of New London, et al., Case
No. 3:13cv1726(SRU), has been closed.
On April 29, 2014, I granted the plaintiff leave to file an
amended complaint that named the City of New London,
Chief of New London Police Department Margaret Ackley,
Lieutenants Brian Wright and Todd Bergeson, Sergeant
Christina, Sergeant Kevin McBride, Officers Roger Newton,
Todd Lynch, Timothy Henderson, Melissa Schafranski,
Darrin Omara, Zelinski, Liachenko, Marcaccio, Pelchat,
Lamontagne and ATF Agents Wheeler, Scott Riordan, Robert
Harrison, Dennis Turman and Guy Thomas as defendants.
I also denied without prejudice the motion to dismiss filed
by the New London defendants and dismissed the Sixth
Amendment claims in Count 1 of the Amended Complaint
and the conspiracy claims contained in Count V of the
Amended Complaint pursuant to 28 U.S.C. § 1915A(b)(1).
Thus, all claims in Count I and the conspiracy claims in
Count V of the Amended Complaint have been dismissed.
The remaining federal claims under the Fourth, Fifth and
Fourteenth Amendments and state law tort and constitutional
claims as set forth in Counts II, III(a), III(b), IV, V, VI,
VII, VIII, IX, X, XI and XII 1 remain pending against all
defendants in their individual and official capacities.
1

There are two counts labeled Count III, two counts
labeled Count IX and two counts labeled Count X. I
construe the first Count III as Count III(a) and the second
Count III as Count III(b). I construe the second Count IX
as Count XI and the second Count X as Count XII. (See
Amended Complaint at 21–22, 25–27).

The New London defendants 2 have moved to dismiss the
claims against them pursuant to Rule 12(b)6. The plaintiff has
filed a memorandum in opposition to the motion.
2

The New London defendants include: the City of New
London, Chief of New London Police Department
Margaret Ackley, Lieutenants Brian Wright and Todd
Bergeson, Sergeant Christina, Sergeant Kevin McBride,
Officers Todd Lynch, Timothy Henderson, Melissa
Schafranski, Darrin Omara, Zelinski, Liachenko,
Marcaccio, Pelchat. Officer Roger Newton no longer
works for the City of New London. He is represented
by separate counsel, and has not moved to dismiss the
Amended Complaint.

I. Standard of Review

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

1

Tyus v. Newton, Not Reported in F.Supp.3d (2015)
2015 WL 1471643

When deciding a motion to dismiss for failure to state a claim
upon which relief may be granted under Rule 12(b)6, the
court accepts as true all factual allegations in the complaint
and draws inferences from these allegations in the light most
favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S.
232, 236 (1974); Flores v. Southern Peru Copper Corp., 343
F.3d 140, 143 (2d Cir.2003). The court's review is limited
to “the facts alleged in the pleadings, documents attached as
exhibits or incorporated by reference in the pleadings and
matters of which judicial notice may be taken”Samuels v.
Air Transport Local 504, 992 F.2d 12, 15 (2d Cir.1993).
The court considers not whether the plaintiff ultimately will
prevail, but whether he has asserted sufficient facts to entitle
him to offer evidence to support his claim. See York v.
Association of Bar of City of New York, 286 F.3d 122, 125
(2d Cir.), cert. denied,537 U.S. 1089 (2002).
*2 In reviewing the complaint in response to a motion to
dismiss, the court applies “a ‘plausibility standard,’ which
is guided by two working principles.”Ashcroft v. Iqbal, 556
U.S. 662, 129 S.Ct. 1937, 1949 (2009). First, the requirement
that the court accept as true the allegations in the complaint
“ ‘is inapplicable to legal conclusions,’ and ‘[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.’ “ Harris v. Mills,
572 F.3d 66, 72 (2d Cir.2009) (quoting Iqbal, 129 S.Ct. at
1949). Second, to survive a motion to dismiss, the complaint
must state a plausible claim for relief. Determining whether
the complaint states a plausible claim for relief is “ ‘a contextspecific task that requires the reviewing court to draw on its
judicial experience and common sense.’ “ Id . (quoting Iqbal,
129 S.Ct. at 1950). Even under this standard, however, the
court liberally construes a pro se complaint. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is
to be liberally construed and a pro se complaint, however in
artfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.”) (per curiam ) (internal
quotation marks and citations omitted).

II. Facts
The facts as they relate to the defendants identified as the New
London defendants are taken from the Amended Complaint
and are assumed to be true for purposes of this motion. In
October 2010, a jury in this Court acquitted the plaintiff
of all federal criminal charges in connection with an arrest
that occurred in November 2009. See United States, et al. v.
Muller, et al., No. 3:09cr247(RNC) (Judgment of Acquittal
after Jury Trial, Doc. No. 494). After his release from custody,

Officers Henderson, Lynch, Pelchut and Newton began to
follow the plaintiff as he drove around City of New London.
On January 18, 2011, Officers Henderson and Lamontagne
pulled the plaintiff over because they claimed the light
on his marker plate was out. The officers claimed they
smelled the odor of marijuana in the car and asked the
plaintiff to exit the vehicle. Officer Lamontagne searched the
plaintiff and removed cash and a knife from his pockets and
Officer Henderson searched the plaintiff's vehicle. Officers
Henderson and Lamontagne then returned the cash and the
knife to the plaintiff and issued him a warning ticket for the
defective marker plate light.
On January 22, 2011, Officers Henderson and Newton pulled
the plaintiff over because his vehicle had no front marker
plate. The officers said they smelled the odor of marijuana in
the plaintiff's car and asked him to exit the vehicle. Officer
Newton then searched the plaintiff. During the search, Officer
Newton repeatedly reached into the plaintiff's pockets and
gripped the plaintiff's buttocks and crotch. Officer Newton
removed cash and a knife from plaintiff. After the search,
Officer Newton returned the cash and the knife to the plaintiff
and issued him a ticket for failure to display a front marker
plate.
*3 Sergeant Kevin McBride verified the report prepared by
Officer Newton regarding the stop and search of the plaintiff
on January 22, 2011. When the plaintiff later attempted to
challenge the traffic violation, a clerk at the Norwich Superior
Court informed him that there was no traffic violation on
record.
On February 5, 2011, Officer Newton pulled the plaintiff
over for failure to display a front marker plate and for having
tinted car windows. Officer Marcaccio arrived at the scene
just after Officer Newton pulled the plaintiff over. Officer
Newton asked the plaintiff to exit the vehicle. Officers Lynch
and Pelchat then arrived at the scene.
Officer Newton conducted a search of the plaintiff. He
repeatedly reached into the plaintiff's pockets and forcefully
grabbed under and reached up into the plaintiff's buttocks and
crotch area during the search. Officer Newton removed cash
and a knife from the plaintiff. Officers Pelchat and Marcaccio
stood by and observed the search. Officers Newton, Lynch,
Pelchat and Marcaccio arrested the plaintiff on charges of
carrying a dangerous weapon and possession of a weapon in

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

2

Tyus v. Newton, Not Reported in F.Supp.3d (2015)
2015 WL 1471643

a motor vehicle. Officer Marcaccio transported the plaintiff
to the New London Police station.
At the station during booking, Officer Lynch searched the
plaintiff again. Sergeant Christina then authorized a bodycavity search of the plaintiff without seeking permission from
the Chief of Police. Officers Newton, Lynch and Pelchat
escorted the plaintiff to a room in order to perform the body
cavity search. Officer Lynch put the plaintiff in a chokehold from behind and slammed him to the floor while Officer
Pelchat and Sergeant Christina looked on. Sergeant Christina
threatened to use a taser on the plaintiff. Officer Newton
pulled the plaintiff's pants down, conducted a body cavity
search and retrieved two plastic bags that allegedly contained
narcotics.
After the search, officers charged the plaintiff with additional
criminal violations including: interfering with a police
officer, possession of drug paraphernalia, possession of
marijuana, possession of marijuana within 1500 feet of a
housing project, possession of crack cocaine with intent to sell
and possession of crack cocaine with intent to sell within 1500
feet of a housing project. Lieutenant Brian Wright verified
the criminal complaint report prepared by Officer Newton
regarding the stop and searches of the plaintiff on February
5, 2011. Subsequently, the plaintiff was able to post bond and
officers released him from custody.
On February 28, 2011, a United States Magistrate Judge
issued a warrant for the plaintiff's arrest on federal criminal
charges based on the narcotics found on the plaintiff during
the body cavity search conducted on February 5, 2011
by New London officers. See United States v. Tyus, No.
3:11cr45(EBB) (Docket Entry 1.) On March 3, 2011, Officers
Newton, Omara, Henderson and Schafranski stopped the
plaintiff's vehicle because there was an outstanding federal
warrant for his arrest. Officer Newton asked the plaintiff
to exit the vehicle because he said he smelled the odor of
marijuana in the car.
*4 Officer Newton conducted a search of the plaintiff
as Officers Omara, Henderson and Schafranski looked on.
Officer Newton forcefully grabbed under and reached up
into the plaintiff's buttocks and crotch area while searching
him. Officer Newton removed cash and a knife from the
plaintiff, arrested the plaintiff pursuant to the outstanding
federal arrest warrant as well as on charges of possession of
a dangerous weapon and then transported him to the New
London Police station. At the station, Lieutenant Bergeson

authorized a body-cavity search of the plaintiff. Officers
Newton and Henderson conducted the search as Lieutenant
Bergeson looked on.
On March 4, 2011, ATF Agents Riordan and Wheeler
transported the plaintiff to federal court for his arraignment on
the charge of possession of narcotics with intent to distribute
in violation of federal criminal statutes 21 U.S.C. §§ 841(a)
(1) and (b)(1)(B)(iii). On February 17, 2012, the United States
moved to dismiss the federal criminal charges against the
plaintiff after they became aware that one of the arresting New
London Police officers had been identified as having planted
drugs on a suspect during an arrest. See United States v. Tyus,
No. 3:11cr45(EBB) (Doc. No. 71.) On February 21, 2012, the
federal judge assigned to the plaintiff's criminal case, granted
the motion to dismiss. (See id. at Doc. No. 72.) Tyus claims
that the State of Connecticut later dismissed the weapon and
drug charges that were the basis for his arrest on February 5,
2011.

III. Discussion
The New London defendants argue that the plaintiff has
failed: (1) to assert any facts regarding Officers Zelinski and
Liachenko; (2) to state a claim of false arrest with regard
to the February 5, 2011 and March 3, 2011 arrests; (3)
to allege the personal involvement of defendants Ackley,
Wright, Bergeson, Christina and McBride in the alleged
constitutional violations; (4) to allege that a private right of
action exists under Article I, sections 7, 9 and 10 of the
Connecticut Constitution; (5) to allege facts to state a claim
of negligent or intentional infliction of emotional distress;
and (6) to state a claim of municipal liability against the
City of New London. The plaintiff's opposition to the motion
addresses some of these arguments.
As a preliminary matter, the motion to dismiss includes
a section on the conspiracy claims that were included in
the Amended Complaint in Count V. On April 29, 2014,
I dismissed the conspiracy claims without prejudice to
the plaintiff's re-pleading those claims within thirty days.
Because the plaintiff did not re-plead the conspiracy claims,
those claims are not in the case.

A. Officers Zelinski and Liachenko
The defendants argue that the plaintiff has failed to assert
any facts with regard to conduct by Officers Zelinski
and Liachenko. The plaintiff identifies these defendants as
employees of the New London Police Department.

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

3

Tyus v. Newton, Not Reported in F.Supp.3d (2015)
2015 WL 1471643

Other than in the section of the Amended Complaint including
a description of each defendant, the plaintiff does not
otherwise refer to Officers Zelinski and Liachenko. As such,
the plaintiff has not alleged that either defendant violated
his federally or constitutionally protected rights or his rights
under state law.
*5 In his response to the motion to dismiss dated July
6, 2014, the plaintiff alleges that Officers Zelinski and
Liachenko were present during Officer Newton's frisk
search of him on January 22, 2011. The plaintiff may not,
however, amend the amended complaint in a memorandum in
opposition to a motion to dismiss. See, e.g., Wright v. Ernst
& Young LLP, 152 F.3d 169, 178 (2d Cir.1998) (declining
to address merits of claim that “does not appear anywhere
in the amended complaint and did not enter the case until
[the plaintiff] mentioned it for the first time in her opposition
memoranda to the motion to dismiss”); Walia v. Napolitano,
986 F.Supp.2d 169, 184 (E.D.N.Y.2013) (“Plaintiff cannot
amend [his] complaint by asserting new facts or theories
for the first time in opposition to Defendants' motion to
dismiss”) (internal quotation marks and citations omitted);
Allah v. Poole, 506 F.Supp.2d 174, 193 (W.D.N.Y.2007)
(“Da memorandum of law or other motion papers are not
proper vehicles by which to raise claims that are not asserted
in the complaint”).
I will not grant the plaintiff leave to file a second amended
complaint to add allegations against defendants Zelinski and
Liachenko because any claims against them regarding the
January 22, 2011 3 search would be barred by the statute of
limitations. See Lounsbury v. Jeffries, 25 F.3d 131, 134 (2d
Cir.1994) (holding that, in Connecticut, the general threeyear personal injury statute of limitations period set forth
in Connecticut General Statutes § 52–577 is the appropriate
limitations period for civil rights actions asserted under 42
U.S.C. § 1983). The motion to dismiss is granted with respect
to defendants Zelinski and Liachenko for failure to state a
claim on which relief may be granted.
3

It is doubtful that Tyus could allege a plausible claim
against Zelinski and Liachenko for failing to intervene to
stop the frisk search on January 22, 2011. Frisk searches
are generally brief and the squeezing alleged to have
occurred while Tyus's pockets were searched is unlikely
to have been readily observable.

B. False Arrest Claims

The defendants contend that the plaintiff has failed to state
a claim of false arrest regarding both the February 5, 2011
and March 3, 2011 arrests. The defendants argue that there
was probable cause to arrest the plaintiff on February 5, 2011
and the arrest by Officer Newton on March 3, 2011 was made
pursuant to a valid arrest warrant.
The Fourth Amendment's protections include the right to
be free from unreasonable “seizures.” See Weyant v. Okst,
101 F.3d 845, 852 (2d Cir.1996). An allegation that a
criminal prosecution was initiated against an individual
without probable cause arises under the Fourth Amendment
rather than the Fourteenth Amendment's substantive due
process provision. See Albright v. Oliver, 510 U .S. 266, 274–
75 (1994).
“Claims for false arrest or malicious prosecution, brought
under [Section] 1983 to vindicate the Fourth and Fourteenth
Amendment right to be free from unreasonable seizures, are
‘substantially the same’ as claims for false arrest or malicious
prosecution under state law.”Jocks v. Tavernier, 316 F.3d
128, 134 (2d Cir.2003). Under Connecticut law, “ ‘[f]alse
imprisonment, or false arrest, is the unlawful restraint by
one person of the physical liberty of another.’ “ Russo v.
City of Bridgeport, 479 F.3d 196, 204 (2d Cir.) (quoting
Outlaw v. City of Meriden, 43 Conn.App. 387, 392, 682
A.2d 1112, 1115 (1996), cert. denied,522 U.S. 818 (2007)).
“It is well-established that probable cause is a complete
defense to claims of false imprisonment and false arrest.”
Johnson v. Ford, 496 F.Supp.2d 209, 213 (D.Conn.2007)
Probable cause only exists when police officers have
“knowledge or reasonably trustworthy information of facts
and circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be arrested
has committed or is committing a crime.” Weyant v. Okst, 101
F.3d 845, 852 (2d Cir.1996). Probable cause does not require
a police officer to be certain that the individual arrested will
be prosecuted successfully. See Krause v. Bennett, 887 F.2d
362, 371 (2d Cir.1989).
*6 Probable cause is presumed when the arrest is made
pursuant to a warrant issued by a neutral magistrate. See
Walczyk v. Rio, 496 F.3d 139, 155–56 (2d Cir.2007)
(“Ordinarily, an arrest or search pursuant to a warrant issued
by a neutral magistrate is presumed reasonable because such
warrants may issue only upon a showing of probable cause.”).
A plaintiff can overcome this presumption by demonstrating
that his right not to be arrested without probable cause was
violated when “the officer ...'knowingly and intentionally, or

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

4

Tyus v. Newton, Not Reported in F.Supp.3d (2015)
2015 WL 1471643

with reckless disregard for the truth, made a false statement ...'
or omitted material information,” and where “such false or
omitted information was ‘necessary to the finding of probable
cause.’ “ Soares v. Connecticut, 8 F.3d 917, 920 (2d Cir.1993)
(citations omitted).

1. March 3, 2011 Arrest
The defendants argue that Officer Newton had probable cause
to arrest the plaintiff on March 3, 2011 because a valid arrest
warrant had been issued by a federal Magistrate Judge. The
plaintiff concedes that an arrest warrant had been issued for
his arrest on federal criminal charges. There are no allegations
that ATF Agent Riordan, who applied for the arrest warrant,
materially misled the Magistrate Judge into believing that
probable cause existed for the plaintiff's arrest.
In opposition to the motion to dismiss, the plaintiff now
contends that the affidavit of ATF Agent Riordan contained
inaccurate information. The plaintiff did not include those
allegations in the Amended Complaint. The plaintiff may
not now amend his Amended Complaint by asserting new
allegations regarding the of veracity of statements in the
affidavit in support of the arrest warrant in his memorandum
in opposition to the motion to dismiss. See, e.g., Wright v.
Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir.1998); Walia
v. Napolitano, 986 F.Supp.2d 169, 184 (E.D.N.Y.2013);
Allah v. Poole, 506 F.Supp.2d 174, 193 (W .D.N.Y.2007).
I will not grant the plaintiff leave to file a second amended
complaint to add new allegations regarding the viability
of the warrant for his arrest because any such false arrest
claim would be barred by the statute of limitations. See
Wallace v. Kato, 549 U.S. 384, 388–89 (2007) (statute of
limitations for a claim of false arrest, which is a “species”
of false imprisonment, begins to run “when the alleged false
imprisonment ends.”An alleged false imprisonment ends
when “the victim becomes held pursuant to [legal] process—
when, for example, he is ... arraigned on charges.”) (emphasis
omitted). 4
4

The docket in the plaintiff's federal criminal case reflects
that he was arraigned on April 8, 2011. See United States
v. Tyus, No. 3:11cr45(EBB) (Docket Entry No. 16.) The
plaintiff first asserted that the search warrant affidavit
was inaccurate in his memorandum in opposition to the
motion to dismiss, which was filed on July 9, 2014, more
than three years later.

Probable cause for the plaintiff's arrest on March 3, 2011
is presumed because Officers Newton, Lynch, Pelchat and

Marcaccio arrested him pursuant to an arrest warrant issued
by a federal magistrate judge. There are no timely allegations
to overcome that presumption. Accordingly the plaintiff's
false arrest claim fails. The motion to dismiss is granted with
respect to the claim that defendants Newton, Lynch, Pelchat
and Marcaccio falsely arrested him on March 3, 2011.

2. February 5, 2011 Arrest
*7 The defendants contend that Officer Newton had
probable cause to arrest the plaintiff on a charge of carrying
a dangerous weapon on February 5, 2011. Tyus alleges that
Officer Newton did not have probable cause to search or
arrest him after pulling him over for a traffic violation that
day. He alleges that Officer Newton claimed to have smelled
marijuana in his vehicle after he pulled him over for a traffic
violation, and that based on his suspicion that the plaintiff had
been using marijuana in the vehicle, Officer Newton ordered
him to step out of his car so that he could conduct a patdown search. The plaintiff alleges that the pat-down search
was more intrusive than necessary. The plaintiff claims that
Officer Newton found a knife in his possession, which was
the same knife that he had possessed when he was pulled
over on January 18 and 22, 2011. The officers who pulled the
plaintiff over on those two prior occasions, one of whom was
Officer Newton, did not arrest the plaintiff on weapon or any
other charges, but instead permitted him to leave with only
a traffic violation citation. On February 5, 2011, however,
Officers Newton, Lynch, Pelchat and Marcaccio decided to
charge the plaintiff with possession of a dangerous weapon
and possession of a weapon in a motor vehicle in violation of
Connecticut General Statutes §§ 29–38 and 53–206.
The plaintiff contends that probable cause did not exist for the
search that took place outside his vehicle because there was
no basis for Officer Newton's suspicion of marijuana use. The
defendants do not address the legality of the pat-down search.
The plaintiff also argues that the type of knife he possessed
did not have the necessary characteristics to be illegal to
carry under the relevant statute, and that no reasonable officer
would believe otherwise, so there was no probable cause to
arrest him. But even if there was probable cause to arrest him
for carrying the knife, it never would have been discovered
but for the challenged pat-down search. If, as Tyus alleges,
the alleged suspicion of marijuana use was pretextual and the
search unlawful, then the knife was fruit of the poisonous
tree. The plaintiff also argues that probable cause did not exist
for the additional criminal charges that were brought against
him after the body cavity search was conducted at the New
London Police Department later on February 5, 2011, but the

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

5

Tyus v. Newton, Not Reported in F.Supp.3d (2015)
2015 WL 1471643

defendants do not address that claim or the claim regarding
the legality of the body cavity search.
I conclude that the plaintiff has asserted sufficient facts
to state a plausible claim that Officers Newton, Lynch,
Pelchat and Marcaccio arrested him without probable cause
on February 5, 2011. The motion to dismiss is denied with
respect to the claim of false arrest in connection with the
February 5, 2011 arrest on dangerous weapon charges.

C. Personal Involvement of Chief of Police Ackley,
Lieutenants Wright and Bergeson and Sergeants
Christina and McBride
*8 The defendants argue that the plaintiff has failed to
sufficiently allege the involvement of supervisory officials
Chief Ackley, Lieutenants Wright and Bergeson, and
Sergeants Christina and McBride in the alleged violations
of the plaintiff's constitutional rights. To recover money
damages under section 1983, the plaintiff must show
that these defendants were personally involved in the
constitutional violations. See Colon v. Coughlin, 58 F.3d 865,
873 (2d Cir.1995). Supervisory officials cannot be held liable
under section 1983 solely for the acts of their subordinates.
See Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.1985).
The plaintiff may show personal involvement by
demonstrating one or more of the following criteria: (1) the
defendant actually and directly participated in the alleged
unconstitutional acts; (2) the defendant failed to remedy a
wrong after being informed of the wrong through a report
or appeal; (3) the defendant created or approved a policy
or custom that sanctioned objectionable conduct that rose
to the level of a constitutional violation or allowed such
a policy or custom to continue; (4) the defendant was
grossly negligent in supervising the correctional officers who
committed the constitutional violation; and (5) the defendant
failed to take action in response to information regarding
the occurrence of unconstitutional conduct. See Colon, 58
F.3d at 873 (citation omitted). In addition, the plaintiff must
demonstrate an affirmative causal link between the inaction
of the supervisory official and his injury. See Poe v. Leonard,
282 F.3d 123, 140 (2d Cir.2002).
In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court
held that a supervisor can be held liable only “through the
official's own individual actions.”Id. at 676. That decision
arguably casts doubt on the continued viability of some of
the categories for supervisory liability. The Second Circuit,
however, has not revisited the criteria for supervisory liability

following Iqbal. See Rispardo v. Carlone, 770 F.3d 97, 117
(2d Cir.2014) (“We have not yet determined the contours of
the supervisory liability test ... after Iqbal.”); Grullon v. City
of New Haven, 720 F.3d 133, 139 (2d Cir.2013) (noting that
decision in Iqbal“may have heightened the requirements for
showing a supervisor's personal involvement with respect to
certain constitutional violations,” but finding it unnecessary
to reach the impact of Iqbal on the personal involvement
requirements set forth in Colon, 58 F.3d at 873). Because
it is unclear whether Iqbal overrules or limits Colon, I will
continue to apply the categories for supervisory liability set
forth in Colon.

1. Chief Ackley
The defendants contend that the plaintiff has not alleged
that Chief Ackley was personally involved in the traffic
stops, searches or arrests of the plaintiff. The plaintiff alleges
that Chief Ackley, as a supervisor and administrator who is
responsible for the discipline of police officers, should have
known about the misconduct that occurred when members
of the New London Police Department pulled him over for
alleged traffic violations, searched him and arrested him
in 2011. The plaintiff generally alleges that there was a
breakdown in the City's policies and inadequate review of
arrests made by New London Police officers.
*9 These allegations are conclusory and are not supported
by any facts. There are no factual allegations to suggest
that Chief Ackley was aware of the incidents involving
the plaintiff in January, February and March 2011. Nor
does the plaintiff allege that he or anyone else put Chief
Ackley on notice of alleged unconstitutional conduct by New
London Police officials. The plaintiff has failed to allege the
personal involvement of Chief Ackley in the violations of
his constitutional rights. The motion to dismiss is granted
with respect to the claims against defendant Ackley in
her individual capacity on the ground of lack of personal
involvement. 5
5

Tyus does not appear to seek any declaratory or
injunctive relief against defendant Ackley, and to the
extent that he seeks to include any claim against her
in her official capacity, it is duplicative of his claim
of municipal liability against the City of New London,
discussed below. Accordingly, the motion to dismiss
is granted with respect to all claims against defendant
Ackley in her official capacity as well.

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

6

Tyus v. Newton, Not Reported in F.Supp.3d (2015)
2015 WL 1471643

2. Lieutenant Wright and Sergeant McBride
The plaintiff claims that Sergeant Kevin McBride verified the
report prepared by Officer Newton regarding the stop and
search that occurred on January 22, 2011. The plaintiff alleges
that Lieutenant Brian Wright verified the criminal complaint
report prepared by Officer Newton regarding the stop and
searches that occurred on February 5, 2011.
The plaintiff contends that by signing off on the incident
reports defendants McBride and Wright became aware of
the January 22, 2011 traffic stop and pat-down search
conducted by Officers Newton and Henderson and the
February 5, 2011 traffic stop, pat-down search, and body
cavity search conducted by Officers Newton, Lynch, Pelchat
and Marcaccio as well as his arrest by those officers on
various criminal charges. The plaintiff has alleged sufficient
facts to plausibly demonstrate that defendants Wright and
McBride became aware of the illegal traffic stops, searches
and false arrest of the plaintiff, but failed to take any action
to correct that unconstitutional conduct. Accordingly, the
motion to dismiss is denied on the ground that the plaintiff
has alleged no facts against defendants Wright and McBride
regarding the traffic stops, searches and seizure of the plaintiff
that occurred on January 22, 2011 and February 5, 2011.

3. Sergeant Christina and Lieutenant Bergeson
The plaintiff has alleged that Sergeant Christina authorized
and was present for the body cavity search conducted by
Officers Newton on February 5, 2011. In addition, the
plaintiff has alleged that Lieutenant Bergeson authorized the
body cavity search conducted by Officers on March 3, 2011.
The plaintiff claims that both searches were illegal, intrusive,
and unconstitutional. I conclude that those allegations
demonstrate the involvement of defendants Christina and
Bergeson in the various searches of the plaintiff. The motion
to dismiss is denied with respect to defendants Christina and
Bergeson on the ground of lack of personal involvement.

D. Municipal Liability
The defendants argue that the plaintiff has failed to state a
claim of municipal liability against the City of New London.
In order to impose liability on a municipal entity under section
1983 for a violation of constitutional rights, a plaintiff must
show that the violation was caused by a municipal policy or
custom. See Monell v. N.Y. Dep't of Soc. Servs., 436 U.S.
658, 694 (1978). Municipal policies “include[ ] the decisions
of a government's lawmakers, the acts of its policymaking

officials, and practices so persistent and widespread as to
practically have the force of law.”Connick v. Thompson, 131
S.Ct. 1350, 1359 (2011).
*10 A municipality, however, cannot be held liable “solely
because it employs a tortfeasor—or in other words ... on
a respondeat superior theory.”Monell, 436 U.S. at 691.
Instead, municipal liability may be established if a plaintiff
can “demonstrate that, through its deliberate conduct, the
municipality was the moving force behind the alleged injury”
or that “action pursuant to official municipal policy or custom
caused the alleged constitutional injury.”Cash v. Cnty of Erie,
654 F.3d 324, 333 (2d Cir.2011) (internal quotation marks
and citations omitted).
“A municipal policy may be pronounced or tacit and reflected
in either action or inaction. In the latter respect, a city's
policy of inaction in light of notice that its program will
cause constitutional violations is the functional equivalent of
a decision by the city itself to violate the Constitution.”Id.
at 334 (internal quotation marks and citation omitted). Thus,
a plaintiff may “establish municipal liability by showing
that a municipal policy or custom existed as a result of
the municipality's deliberate indifference to the violation
of constitutional rights, either by inadequate training or
supervision.”Russo v. City of Hartford, 341 F.Supp.2d 85,
107 (D.Conn.2004).
Liability based on a failure to train is the most tenuous form
of municipal liability under Monell.To state a claim under
section 1983, “a municipality's failure to train its employees
in a relevant respect must amount to deliberate indifference
to the rights of persons with whom the untrained employees
come into contact. Only then can such a shortcoming
be properly thought of as a city policy or custom that
is actionable under section 1983.”Connick, 131 S.Ct. at
1359–60 (citing Canton v. Harris, 489 U.S. 378, 388–
89 (1989) (internal quotation marks omitted)). The most
important consideration is “whether the facts demonstrate the
policymaker's failure to train or supervise was the result of
a ‘conscious choice’ rather than mere negligence.”Amnesty
America v. Town of West Hartford, 361 F.3d 113, 128 (2d
Cir.2004) (quoting Canton, 489 U.S. at 389).
Here, the plaintiff claims that he suffered violations of
his constitutional rights because the City of New London
failed to properly train the members of the New London
Police Department in how to conduct pat-down and body
cavity searches. In addition, the plaintiff's allegations may be

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

7

Tyus v. Newton, Not Reported in F.Supp.3d (2015)
2015 WL 1471643

construed to state a claim that there was a policy or custom
of New London Police officers to engage in pretextual or
arbitrary traffic stops, detentions, searches and arrests without
reasonable suspicion or cause. The plaintiff suggests that the
City of New London failed to properly train its officers to
prevent the unconstitutional conduct that occurred during the
multiple traffic stops and searches, as well as his arrest in
2011.
The plaintiff generally alleges that there were repeated
complaints of constitutional violations and a pattern of
police misconduct, but refers to another specific incident
that occurred in October 2010, and involved a traffic
stop by Officer Newton that resulted in an arrest after
narcotics were allegedly found near the suspect's vehicle. The
charges against the individual were subsequently dismissed
after a videotape taken at the scene of the traffic stop
allegedly showed Officer Newton planting narcotics near the
individual's vehicle. The plaintiff also mentions an incident
during which an unidentified officer allegedly slapped a
woman at a casino nightclub and another incident during
which unidentified officers allegedly punched and peppersprayed a man who needed to be taken to the hospital from
a detoxification center.
*11 “A pattern of similar constitutional violations
by untrained employees is ‘ordinarily necessary’ to
demonstrate deliberate indifference for purposes of failure
to train.”Connick, 131 S.Ct. at 1360 (quoting Bryan Cty.
v. Brown, 520 U.S. 397, 409 (1997)). The plaintiff has
alleged that in the first three months of 2011, New London
Police officers pulled him over three times for alleged traffic
violations, conducted intrusive pat-down searches on at least
three occasions, searched his vehicle without permission on at
least one occasion, and arrested him without probable cause
on one occasion. In addition, officers conducted body cavity
searches on two occasions.
In view of the number of alleged unconstitutional traffic
stops, searches, and arrests involving the plaintiff and at
least one other individual prior to the incidents involving
the plaintiff, I conclude that the plaintiff has alleged
sufficient facts to state a plausible claim that the City of
New London had a custom or policy of tolerating police
misconduct and acted with deliberate indifference by poorly
training or supervising its officers regarding motor vehicle
stops, detentions, pat-down and body cavity searches, and
arrests. See Goode v. Newton, 2013 WL 1087549, at *8
(D.Conn. Mar. 14, 2013) (denying motion to dismiss City

of New London on ground that non-conclusory allegations
of one prior incident of falsifying a police report and
manufacturing criminal charges in addition to the two
incidents of manufactured criminality in amended complaint
raised plausible inference that City had informal custom of
tolerating misconduct by its officers and that custom caused
the plaintiff's constitutional violations); Castilla v. City of
New York, No. 09 Civ. 5446(SHS), 2012 WL 3871517,
at * *4–5 (S.D.N.Y. Sept. 6, 2012) (denying motion for
judgment on the pleadings regarding municipal liability
because plaintiff alleged “a string of incidents in which she
was victimized by multiple officers in multiple locations,
both on and off City property” as well as “various other
instances of male police officers taking sexual advantage of
females under their custody or control”); Michael v. County
of Nassau, No. 09–CV–5200(JS)(AKT), 2010 WL 3237143,
at *4 (E.D.N.Y. Aug. 11, 2010) (denying motion to dismiss
municipal liability claims against County because multiple
denials of plaintiff's rights over a long, continuous time
period by at least five officers created “plausible inference
that Nassau County has an informal policy or custom of at
least tolerating police misconduct ... Likewise, the alleged
involvement of numerous officers, the mocking Plaintiff
allegedly received when invoking his right to counsel, and the
headquarters location, suffices to suggest that Nassau County
poorly trained and/or supervised its officers concerning the
need not to violate suspects' civil rights.”). Accordingly, the
motion to dismiss is denied with respect to the claims against
the City of New London.

E. Connecticut Constitutional Claims
*12 The plaintiff alleges that defendants Wright, Christina,
Newton and Lynch violated his rights under Article I,
sections 7 and 10, and all individual defendants violated his
rights under Article I, sections 9 and 10 of the Connecticut
Constitution. Article 1, section 7 of the Connecticut
Constitution provides that “people shall be secure in their
persons, houses, papers and possessions from unreasonable
searches and seizures; and no warrant to search any place, or
to seize any person or things, shall issue without describing
them as nearly as may be, nor without probable cause
supported by oath or affidavit.”Conn. Const. art. 1, § 7.
Article 1, section 9 provides that [n]o person shall be arrested,
detained or punished, except in cases clearly warranted by
law.” Conn. Const. art. 1, § 9.Article 1, section 10 provides
that “[a]ll courts shall be open, and every person, for an
injury done to him in his person, property or reputation, shall
have remedy by due course of law, and right and justice

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

8

Tyus v. Newton, Not Reported in F.Supp.3d (2015)
2015 WL 1471643

administrated without sale, denial or delay.”Conn. Const. art.
1, § 10.

1. Article I, Section 10
The defendants contend that the plaintiff has no private
right of action for money damages under Article I, section
10. There are no cases in which a Connecticut court has
recognized a private right of action under Article I, section 10
of the Connecticut Constitution. See Sentementes v. General
Elec. Co., Civil Action No. 3:14–CV–00131(VLB), 2014
WL 2881441, at *10 (D. Conn. June 25, 2014) (dismissing
claim that defendants violated “Article I, section 10 of the
Connecticut state constitution... [because] Connecticut courts
do not recognize a private right of action under that clause”);
Thibault v. Barkhamsted Fire Dist., No. CV126008093S,
2013 WL 6038259, at *4 (Oct. 21, 2013) (refusing to
“recognize a cause of action for alleged violations of article
first, § 10 of the Connecticut constitution”); Marinella v.
Town of Darien, No. 3:07–cv–910(CFD), 2010 WL 3123298,
at *5 (D.Conn. Aug. 9, 2010) (no cause of action under Article
I, sections 8 or 10 of the Connecticut constitution). Instead,
the Connecticut Supreme Court has held to the contrary.
Binette v. Sabo, 244 Conn. 23, 32, 710 A.2d 688, 691–
92 (1998) (Article 1, section 10“does not itself create new
substantive rights but, instead protects access to our state's
courts” and no direct constitutional action for damages exists
under this section). Accordingly, the motion to dismiss is
granted with respect to the claims for money damages under
Article I, section 10 of the Connecticut Constitution.

2. Article I, Sections 7 and 9
In Binette v. Sabo, 244 Conn. 23, 25–26, 710 A.2d 688, 689
(1998), the Connecticut Supreme Court relied on Bivens v.
Six Unknown Named Agens of Federal Bureau of Narcotics,
403 U.S. 388 (1971), to recognize a private cause of action
for monetary damages against municipal police officers for
violations of Article 1, sections 7 and 9 of the Connecticut
Constitution based on an alleged unreasonable search and
seizure and unlawful arrest. Tyus has asserted no facts to
suggest that Chief Ackley was involved in or aware of
searches conducted by officers or arrests of the plaintiff made
in January, February or March 2011. Thus, the plaintiff has
failed to allege that defendant Ackley violated his rights
under the Connecticut Constitution. The motion to dismiss is
granted with respect to the claims under Article I, sections
7 and 9 of the Connecticut Constitution against defendant
Ackley.

*13 The defendants argue that the Binette decision does not
imply a damages cause of action against a municipality. Thus,
they move to dismiss the claims under Article I, sections
7 and 9 of the Connecticut Constitution against the City of
New London. Research has revealed no Connecticut case
law recognizing municipal liability for violations of Article
I, sections seven or nine of the Connecticut Constitution.
See Bazzano v. City of Hartford, No. CV 980584611S, 1999
WL 1097174, at * (Conn.Super.Ct. Nov. 18, 1999) (granting
motion to strike claim against municipality for violations
of Connecticut Constitution Article First, sections 7 and 9
because “the deterrent effects of the Bivens remedy [against
the officers] would be lost if the court was to imply a
damages cause of action directly against the municipality and
a supervisor”). Accordingly, the motion to dismiss is granted
with respect to the claims under the Connecticut Constitution
against the City of New London.
Pursuant to Binette, the search and seizure claims under
the Fourth Amendment will proceed against defendants
Wright, Bergeson, Christina, McBride, Lynch, Henderson,
Marcaccio, Pelchat, Melissa Schafranski, Omara and
Lamontagne. The motion to dismiss is denied against those
defendants with respect to the claims under the Connecticut
Constitution's search and seizure provisions set forth in
Article I, sections 7 and 9.

F. Infliction of Emotional Distress and Negligence
Claims
In Counts VIII and IX, the plaintiff alleges that the defendants
subjected him to assault and battery, mental and emotional
distress and physical pain. In addition, the plaintiff claims
that the defendants' conduct constituted gross negligence. The
defendants argue that the claims for negligence and infliction
of emotional distress should be dismissed.
A claim for intentional infliction of emotional distress
requires a plaintiff to prove “that the [defendant] intended
to inflict emotional distress or that he knew or should have
known” that his conduct would cause emotional distress,
“that the conduct was extreme and outrageous,” that the
plaintiff's distress was caused by the defendant's conduct
and that the plaintiff suffered severe emotional distress.
Appleton v. Bd. of Ed., 254 Conn. 205, 210, 757 A.2d 1059,
1062 (2000) (citation omitted). To state a claim of negligent
infliction of emotional distress, a plaintiff must plead that
“(1) the defendant's conduct created an unreasonable risk
of causing the plaintiff emotional distress; (2) the plaintiff's
distress was foreseeable; (3) the emotional distress was severe

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

9

Tyus v. Newton, Not Reported in F.Supp.3d (2015)
2015 WL 1471643

enough that it might result in illness or bodily harm; and
(4) the defendant's conduct was the cause of the plaintiff's
distress.”Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815
A.2d 119 (2003).
Tyus's allegations that the defendants' conduct caused him
mental and emotional suffering and distress are not supported
by facts that suggest the distress he suffered was severe
enough to maintain an intentional infliction of emotional
distress claim. He has not alleged facts sufficient to infer that
any emotional distress he suffered was “severe enough that it
might result in illness or bodily harm.”Id. Thus, the plaintiff
has not plausibly alleged a claim of intentional or negligent
infliction of emotional distress.
*14 Furthermore, under Conn. Gen.Stat. § 52–584, “[n]o
action to recover damages for injury to the person ... caused
by negligence, or reckless or wanton misconduct ... shall
be brought but within two years from the date when the
injury is first sustained or discovered or in the exercise
of reasonable care should have been discovered.”Thus, any
claim for negligence or negligent infliction of emotional
distress should have been brought prior to March 3, 2013.
The plaintiff commenced this action in October 2013. The
plaintiff's claims of negligence and negligent infliction of
emotional distress are time-barred. The motion to dismiss
is granted as to the claims of negligence and negligent and
intentional infliction of emotional distress.

Liachenko, the claims under Article I, sections 7 and 9
against defendants Ackley and the City of New London,
all claims against defendant Ackley in her individual and
official capacities, the claim that defendants Officers Newton,
Lynch, Pelchat and Marcaccio falsely arrested the plaintiff on
March 3, 2011, and the state law claims of negligence and
intentional and negligent infliction of emotional distress and
under Article I, section 10 of the Connecticut Constitution
against all defendants. The Motion to Dismiss [Doc. No. 39]
is DENIED in all other respects.
With regard to the New London defendants, the case will
proceed on the Fourth Amendment search and seizure
and excessive force claims, the Fourteenth Amendment
equal protection claim, and the state law claims of
assault and battery against defendants Wright, Bergeson,
Christina, McBride, Lynch, Henderson, Marcaccio, Pelchat,
Schafranski, Omara and Lamontagne in their individual and
official capacities; the case will proceed on the Connecticut
Constitutional Claims under Article I, sections 7 and 9
against defendants Wright, Bergeson, Christina, McBride,
Lynch, Henderson, Marcaccio, Pelchat, Schafranski, Omara
and Lamontagne in their individual capacities; and the case
will proceed only on the Fourth and Fourteenth Amendment
claims against the City of New London.
SO ORDERED.

All Citations
IV. Conclusion
The Motion to Dismiss [Doc. No. 39] is GRANTED
with respect to all claims against defendants Zelinski and
End of Document

Not Reported in F.Supp.3d, 2015 WL 1471643

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

10