Fisher v. Jenks et al

Filing 36

ORDER adopting in part and rejecting in part 35 Report and Recommendations; granting in part and denying in part 26 Motion for Summary Judgment. Plaintiff's complaint is dismissed as to defendants David M. Layng and Ryan H. Polniak. Signed by Judge Brenda K. Sannes on 8/17/15 (served on plaintiff via regular mail). (rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________________
JAMES R. FISHER, JR.,
Plaintiff,
v.

9:13-CV-0213 (BKS/TWD)

FAY JENKS, et. al.,
Defendants.
________________________________________________
APPEARANCES:

OF COUNSEL:

James R. Fisher, Jr., Plaintiff pro se
13-A-1445
Franklin Correctional Facility
P.O. Box 10
Malone, NY 12953
Sugarman Law Firm LLP
211 West Jefferson Street
Syracuse, NY 13202

Paul V. Mullin, Esq.

Hon. Brenda K. Sannes, United States District Judge
ORDER
I. INTRODUCTION
On February 26, 2013, plaintiff James R. Fisher, Jr. filed a pro se complaint under 42
U.S.C. § 1983 alleging that the defendant Ogdensburg police officers violated the Eighth
Amendment by subjecting him to excessive force during an arrest. Dkt. No. 1. Following
defendants’ motion to dismiss, the Court construed plaintiff’s alleged Eighth Amendment claim
as a Fourth Amendment excessive force claim. See Dkt. No. 18 (dismissing plaintiff’s Eighth

Amendment claim and directing defendants to respond to plaintiff’s excessive force Fourth
Amendment claim).
On January 20, 2015, defendants filed a motion for summary judgment. Dkt. No. 26.
After United States Magistrate Judge Thérèse Wiley Dancks granted plaintiff three extensions of
time to respond to the motion, plaintiff failed to file any response. Dkt. Nos. 30, 32, 34. On
July 15, 2015, Magistrate Dancks issued a Report-Recommendation and Order, recommending
that defendants’ motion for summary judgment be granted in its entirety. Dkt. No. 35.
Magistrate Dancks advised plaintiff that he had fourteen days to file written objections to the
report and that the failure to object would preclude appellate review. Id., p. 11 The ReportRecommendation was served on plaintiff by regular mail on July 15, 2015, and no objections to
the Report and Recommendation have been filed. Id.
II. REPORT-RECOMMENDATION
Since no objections to the Report-Recommendation have been filed, and the time for
filing objections has expired, the Court has reviewed the Report-Recommendation for clear error.
Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b) advisory
committee’s note to the 1983 addition. Under this standard, “the court need only satisfy itself
that there is no clear error on the face of the record in order to accept the recommendation.” Id.
A report is clearly erroneous only if the Court, upon reviewing the entire record, is “left with the
definite and firm conviction that a mistake has been committed.” Mateo v. Bristow, 12-cv-5052,
2015 WL 925933, at *2, 2015 U.S. Dist. LEXIS 26761, at *6 (S.D.N.Y. Mar. 4, 2015) (quoting
Easley v. Cromartie, 532 U.S. 234, 242 (2001)). For the reasons that follow, the ReportRecommendation is adopted in part and rejected in part.
2

A. Standard for Consideration of An Unopposed Motion For Summary Judgment
As Magistrate Dancks noted, plaintiff failed to oppose defendants’ motion after plaintiff
had been warned of the consequences of failing to respond and after plaintiff had been granted
several extensions of time to file a response. Dkt. No. 35, p. 5; see Dkt. Nos. 27, 30, 32, 34.
Plaintiff thereby failed to comply with the local rules of the Northern District of New York which
required him to file a response to the defendants’ Statement of Material Facts, admitting or
denying the defendants’ assertions in matching numbered paragraphs. N.D.N.Y. L.R. 7.1(a)(3).
Under Local Rule 7.1(a)(3), the Court “shall deem admitted any properly supported facts set
forth in the Statement of Material Facts that the opposing party does not specifically controvert.”
As Magistrate Dancks further noted, however, “[t]he fact that there has been no response
to a summary judgment motion does not . . . mean that the motion is to be granted
automatically.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). See Dkt. No. 35, p. 6.
Summary judgment may only be granted “if the facts as to which there is no genuine dispute
‘show that the moving party is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ.
P. 56(c)).1 In considering whether there are material issues of fact “[a] verified complaint is to be
treated as an affidavit for summary judgment purposes . . . provided that it meets the other
requirements for an affidavit” under Rule 56. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.
1995).2

1

This standard is now codified in Fed. R. Civ. P. 56(a). See Advisory Committee Notes
2010 Amendments.
2

Affidavits in support or opposition of a motion for summary judgment must “be made
on personal knowledge, set out facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
3

In the Report-Recommendation, Magistrate Dancks concluded that the court was “not
required to consider the version of events set forth in the verified complaint as evidence” because
plaintiff failed to oppose the motion for summary judgment. Dkt. 35, p. 9. Nothing in Colon,
however, indicates that the treatment of a verified complaint as an affidavit is dependent on the
filing of an opposition to a summary judgment motion. In Colon, the plaintiff opposed the
defendants’ motion for summary judgment with an affidavit which was “virtually devoid of
facts,” and the defendants argued that the plaintiff could not rely on the “more detailed factual
allegations” in the complaint to defeat their motion. Colon, 58 F.3d at 872. The Second Circuit
disagreed, ruling that “[a] verified complaint is to be treated as an affidavit for summary
judgment purposes, and therefore will be considered in determining whether material issue of
fact exist.” Id. The Second Circuit in Colon found “sufficient evidence in the verified complaint
to withstand the defendants’ motion for summary judgment.” Id.; cf. Jamison v. Metz, 541 F.
App’x 15, 18-19 (2d Cir. 2013) (summary order) (noting that “the verified complaint . . . [was]
properly before the district court” and created an issue of fact in a case in which the plaintiff had
failed to comply with the requirements in N.D.N.Y. Local Rule 7.1 for a responsive Statement of
Material Facts); see Roberson v. Hayti Police Dep’t, 241 F.3d 992, 995 (8th Cir. 2001) (reversing
summary judgment ruling because district court “failed to accord the verified complaint its
proper weight . . . as an affidavit for summary judgment purposes” in a case in which the plaintiff
failed to respond to a defendant’s summary judgment motion).
Courts in this district have considered facts in a verified complaint in determining
whether there are material issues of fact, and whether facts are controverted for the purposes of
deeming admitted the defendant’s Statement of Facts, under Local Rule 7.1(a)(3), when a
4

plaintiff has failed to respond to a summary judgment motion. See, e.g., Jones v. Fischer, No.
9:11-cv-774, 2013 WL 4039377, at *4, 2013 U.S. Dist. LEXIS 111319, at *3 (N.D.N.Y. Mar. 21,
2013); Rivera v. Dianardo, No. 10-cv-1500, 2013 WL 1975437, at *1, 2013 U.S. Dist. LEXIS
68051, at *3 (N.D.N.Y. Apr. 16, 2013), report-recommendation adopted by 2013 WL 1975435,
2013 U.S. Dist. LEXIS 68051 (N.D.N.Y. May 13, 2013). Therefore, the Court declines to ignore
the verified complaint in determining whether there are material issues of fact for trial. Pursuant
to Local Rule 7.1(a)(3) and Fed. R. Civ. P. 56(e)(2), the Court deems all of the properlysupported facts in the defendants’ Statement of Material Facts which are not controverted by the
allegations in the verified complaint to be undisputed for the purposes of this motion.3
B. The Uncontroverted Facts
In the early morning of January 9, 2013, defendant Polniak saw plaintiff carrying an
object and attempting to leave the backyard of an area designated for the parking of police
vehicles. Dkt. 26-11, ¶¶ 5-7. Polniak ordered plaintiff to stop and drop the object – later
determined to be a spray can – but plaintiff threw it. Id., ¶6. Polniak informed plaintiff that he
was under arrest and placed him in handcuffs. Id., ¶ 7. Defendant Jenks arrived to help Polniak
escort plaintiff into the building. Id., ¶8. Plaintiff alleged that the defendants “roughly pushed
and man handled [him] into the police station . . . making disrespectful and degrading comments
such as ‘you piece of shit.’” Dkt. No. 1, p. 4. Plaintiff had been near patrol cars parked behind
the police station; two or three of the cars had been marked with obscenities and other markings.
Dkt. 26-11, ¶ 9. Jenks saw sugar falling from the inside of plaintiff’s winter coat; it was later

3

The defendants’ Statement of Material Facts is properly supported by affidavits from the
defendants. Dkt. No. 26-11.
5

discovered that sugar had been placed inside the gas tank of the patrol car used by the Police
Chief. Id., ¶¶ 10-11.
As Polniak and Jenks attempted to escort plaintiff into the police station, he became
belligerent; he yelled obscenities and made verbal threats, threatening to kill the officers’ families
and slit their throats. Id., ¶¶ 12-13. Plaintiff tripped Jenks, causing Jenks to fall and hit his head
on the wall, causing minor injuries. Id., ¶ 14. Plaintiff was “inebriated.” Dkt. No. 1, p. 5. The
defendants have provided affidavits describing how plaintiff struggled with the officers; was
uncooperative; resisted them; and acted aggressively by attempting to get out of a chair and
lunging at them. Dkt. No. 26-11 ¶¶ 13, 16, 19, 21-22, 24, 27, 34. Plaintiff alleges that at “no
time did [he] resist,” Dkt. No. 1, p. 5.
Jenks and Polniak state that they only used reasonable force to effect plaintiff’s arrest and
detention. Dkt. No. 26-11, ¶ 33. Plaintiff has alleged that
Jenks threw plaintiff face first into a wall causing severe pain & swelling, which lasted
approximately 2 weeks also other injuries were received bruises on upper arms
bicep/tricep area, a ½ inch cut on right knee.

Dkt. 1, p. 5. Plaintiff alleges that this occurred when he was “handcuffed behind his back,” and
that he was thereafter placed in a holding cell. Id.
When he was in the holding cell plaintiff placed what appeared to be wet toilet paper over
the cell’s camera lens and clogged the cell’s toilet with large amounts of toilet paper, socks and a
t-shirt. Id., ¶¶ 28- 29. Plaintiff was not booked until several hours later, after Polniak’s and
Jenks’ shifts had ended. Id., ¶ 31. Neither Polniak nor Jenks saw visible injuries on plaintiff.
Id., ¶ 36. Plaintiff did not complain of any pain or injuries and he did not have any visible

6

injuries when he was booked. Id., ¶ 38.
During these events, defendant Layng was at home. Id., ¶ 39. Layng arrived at the police
station to conduct an investigation and process the damage that had been done, but did not at any
time come in contact with plaintiff. Id., ¶ 41-42.
C. Consideration of the Allegations of the Complaint
In this case, Magistrate Dancks concluded that even if the allegations in the verified
complaint were considered, “no reasonable juror would credit Plaintiff’s testimony.” Dkt. No.
35, p. 10. As Magistrate Dancks notes, the plaintiff’s version of the events is inconsistent with
that of defendants; plaintiff’s injuries are not documented; and there are booking photographs
which appear to depict plaintiff’s face without injury. Nevertheless, assessing the credibility of
the conflicting versions of this incident is a matter for the jury, not the court on summary
judgment. Jeffreys v. City of New York, 426 F.3d 549, 553-54 (2d Cir. 2005). This is not one of
the “extraordinary cases, where the ‘facts alleged are so contradictory that doubt is cast upon
their plausibility [and] the court may pierce the veil of the complaint’s factual allegations and
dismiss the claim.’” Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 106 (2d Cir.
2011) (quoting Jeffreys, 426 F.3d at 554). In Rojas and Jeffreys, the Second Circuit affirmed
summary judgment rulings against plaintiffs whose allegations were discredited by the district
court because the allegations were contradicted by and inconsistent with the plaintiffs’ earlier
statements. Here, there is no evidence that plaintiff has contradicted himself; there is no
evidence of any statement by him other than the allegations in the complaint. The Court
therefore declines to discredit plaintiff’s allegations.

7

D. Discussion
While law enforcement officers have the right to use “some degree of physical coercion
or threat thereof to effect” an arrest, they violate the Fourth Amendment if the amount of force
they use is “objectively unreasonable in light of the facts and circumstances confronting them.”
Rogoz v. City of Hartford, 14-0876, __ F.3d __, 2015 WL 4716570, at *7, 2015 U.S. App.
LEXIS 13945, at *19 (2d Cir. Aug. 10, 2015) (quoting Graham v. Connor, 490 U.S, 386, 396
(1989)) (internal quotations and marks omitted). A determination of reasonableness
requires careful attention to the facts and circumstances of each particular case, including
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.
Id. (quoting Graham, 490 U.S. at 396) (internal citation omitted). The doctrine of “[q]ualified
immunity shields government officials from civil damages liability unless the official violated a
statutory or constitutional right that was clearly established at the time of the challenged
conduct,” Rogoz, 2015 WL 4716570, at *8, 2015 U.S. App. LEXIS 13945, at *20 (quoting
Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)).
1. Defendants Layng and Polniak
The Court adopts Magistrate Dancks’ recommendation that summary judgment be
granted as to defendants David M. Layng and Ryan H. Polniak. Plaintiff’s allegations regarding
the events as he was being transported into the police station – that the defendants “roughly
pushed and man handled” him, while making “disrespectful and degrading comments” – are
insufficient to withstand summary judgment. “Courts in the Second Circuit have consistently
held that [m]ere threats, verbal harassment or profanity, without any injury or damage, are not

8

actionable under Section 1983.” Justice v. McGovern, No. 11-CV-5076, 2012 WL 2155275, at
*3, 2012 U.S. Dist. LEXIS 82077, at *9 (E.D.N.Y. June 12, 2012). The uncontroverted facts
establish that the plaintiff was drunk, belligerent, and threatening the officers. Dkt. No. 26-11, ¶¶
12-13; Dkt. No. 1, p. 5. Moreover, “[n]ot every push or shove, even if it may seem unnecessary
in the peace of a judge’s chambers, violates the Fourth Amendment.” Graham, 490 U.S. at 396.
Plaintiff’s allegation of being “roughly pushed and man handled” as he was brought into the
police station, without more, is insufficient to withstand summary judgment. See, e.g., Breitkopf
v. Gentile, 41 F. Supp. 3d 220, 245-46 (E.D.N.Y. 2014) (collecting cases regarding de minimis
use of force). Alternatively, the defendants’ alleged conduct in bringing the plaintiff into the
station would be protected by the doctrine of qualified immunity. Id.
With respect to the alleged incident inside the police station by Jenks, there is no
evidence that either Layng or Polniak were present. “An individual may be held liable under . . .
§ 1983 only if that individual is ‘personally involved in the alleged deprivation.’” Littlejohn v.
City of New York, 14-1395-cv, __ F.3d __, 2015 WL 4604250, at *10, 2015 U.S. App. LEXIS
13475, at *32 (2d Cir. Aug. 3, 2015) (citation omitted). Plaintiff does not describe who, if
anyone, was present when Jenks allegedly threw plaintiff into the wall. Dkt. No. 1, p. 5. Layng
has submitted an affidavit explaining that he was at home when the vandalization occurred. Dkt.
No. 26-16, p. 1. Layng stated that he was called in to the police station to investigate the damage
to the police vehicles, and that he did not see plaintiff or come into contact with plaintiff at any
point. Dkt. No. 26-16. Summary judgment is therefore appropriate as to Layng because plaintiff
has failed to raise a material issue of fact regarding Layng’s personal involvement in any Fourth
Amendment violation.
9

Nor is there any evidence that Polniak was present for the alleged incident in which
plaintiff was thrown into the wall. Polniak arrested plaintiff, and brought plaintiff into the police
station with Jenks, but Jenks escorted Fisher towards the processing room with another officer.
Dkt No. 26-11, ¶ 7-8. 15. When Polniak entered the processing room, plaintiff was face down on
the ground on his stomach, being searched for weapons. Id., ¶ 18; Dkt. No. 26-17, ¶ 9. Polniak
has submitted an affidavit stating that “[a]t no time did either I, or any other officer I observed,
strike, punch, or throw [plaintiff] into a wall.” Dkt. No. 26-17, ¶ 14. There is no allegation that
Polniak used excessive force or that Polniak was present during the excessive use of force, which
might have created an obligation to prevent the use of excessive force by another officer. See
O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988) (“A law enforcement officer has an
affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being
violated in his presence by other officers.”) (emphasis added). Polniak is therefore entitled to
summary judgment.
2. Defendant Jenks
Defendants’ motion for summary judgment as to defendant Fay Jenks is denied because,
in light of the verified complaint, there is a material issue of fact regarding whether Jenks used
excessive force. While the uncontroverted facts establish that the plaintiff was drunk and
belligerent, and that he tripped Jenks, plaintiff denied that he resisted the officers. There are
therefore material issues of fact regarding whether plaintiff resisted the officers and whether any
use of force by Jenks was objectively unreasonable. Although defendants argue that the Fourth
Amendment claim is not viable because the plaintiff’s alleged injuries were de minimis, plaintiff
has alleged that he was thrown into a wall, face first, when he was handcuffed behind his back
10

and not resisting the officers, and that he had pain and swelling for two weeks, bruises on his
upper body, and a cut on his right knee. These allegations are sufficient to raise a material issue
of fact and preclude summary judgment. See, e.g., Robison v. Via, 821 F.2d 913, 923-24 (2d Cir.
1987) (allegations that defendant pushed the plaintiff against the inside of a car door, yanked her
out, threw her up against the fender and twisted her arm behind her back, resulting in bruises
lasting a couple of weeks were sufficient to prevent the summary dismissal of a § 1983 excessive
force claim).
Nor is Jenks entitled to summary judgment based upon the doctrine of qualified
immunity. Actions which are less extreme than the conduct alleged here have been held
sufficient to support a Fourth Amendment violation. See, e.g., Robison, 821 F.2d at 923-24; see
also Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (holding that summary
judgment was inappropriate when plaintiff alleged that the officer’s “use of force in making the
arrest was sufficient to send pain into arm and lower back and leave her with a post-concussive
syndrome”). Moreover, “the use of entirely gratuitous force is unreasonable and therefore
excessive.” Tracy v. Freshwater, 623 F.3d 90, 99 n.5 (2d Cir. 2010). The material issues of fact
regarding whether plaintiff resisted and what, if any, force was used by Jenks preclude resolution
of the issue of qualified immunity on summary judgment. Hemphill v. Schott, 141 F.3d 412, 418
(2d Cir. 1998).
III. CONCLUSION
For these reasons, it is
ORDERED that the Report-Recommendation (Dkt. No. 35) is ADOPTED insofar as it
recommends that defendants’ motion for summary judgment (Dkt. No. 26) be granted as to
11

defendants David M. Layng and Ryan H. Polniak, and REJECTED only insofar is it
recommends that summary judgment be granted as to defendant Fay Jenks; and it is further
ORDERED that defendants’ motion for summary judgment (Dkt. No. 26) is GRANTED
as to defendants David M. Layng and Ryan H. Polniak and DENIED as to defendant Fay Jenks;
and it is further
ORDERED that the plaintiff’s complaint (Dkt. No. 1) be dismissed as to defendants
David M. Layng and Ryan H. Polniak; and it is further
ORDERED that the Clerk of the Court is directed to provide plaintiff with copies of the
unpublished decisions cited in this Memorandum-Decision and Order; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Order upon plaintiff in
accordance with the Local Rules.
IT IS SO ORDERED.

Dated: August 17, 2015
Syracuse, New York

12

Jones v. Fischer, Slip Copy (2013)
2013 WL 4039377

2013 WL 4039377
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Robert JONES, Plaintiff,
v.
Brian FISCHER et al., Defendants.
No. 9:11–cv–774 (GLS/CFH).

|

answer, and, eventually, moved for summary judgment, (see
Dkt. Nos. 27, 53.)Jones subsequently requested an extension
of time to file his response, which motion was granted by
text only order dated January 24, 2013; however, he failed
to timely file a response. (SeeDkt. No. 56.)In a Report–
Recommendation and Order (R & R) dated March 21,
2013, Magistrate Judge Christian F. Hummel recommended
that defendants' motion be granted and Jones' Amended
Complaint be dismissed. (SeeDkt. No. 57.)For the reasons
that follow, the R & R is adopted in its entirety.

Aug. 7, 2013.
1

42 U.S.C. §§ 12101–12300.

2

29 U.S.C. §§ 701–796l.

3

42 U.S.C. §§ 2000cc–1 to 2000cc–5.

Attorneys and Law Firms
Robert Jones, East Elmhurst, NY, pro se.
Hon. Eric T. Schneiderman, New York State Attorney
General, Richard Lombardo, Assistant Attorney General, of
Counsel, Albany, NY, for the Defendants.

MEMORANDUM–DECISION AND ORDER
GARY L. SHARPE, Chief Judge.

I. Introduction
*1 Plaintiff pro se Robert Jones commenced this action
against defendants Brian Fisher, Kenneth S. Perlman, Mr.
Phillips, Joseph Smith, William R. Steinhaus, Osbourne
McKay, and various John and Jane Does pursuant to
42 U.S.C. § 1983, the Americans withe Disabilities
Act (ADA), 1 the Rehabilitation Act, 2 New York State
Department of Corrections and Community Services
(DOCCS) Directive 2614, and the Religious Land Use
and Institutionalized Persons Act. 3 (See Am. Compl. ¶
12, Dkt. No. 7.) Jones' six enumerated claims pertain to:
discrimination under the ADA, Rehabilitation Act, and
DOCCS Directive 2614; the conditions of his confinement;
wrongful segregation; deliberate indifference to serious
medical needs; interference with the right of free exercise
of religion; and retaliation. (See id. ¶¶ 45–71.)He expressly
seeks a declaration that defendants violated his civil
rights, and compensatory and punitive damages; implicit
in his Amended Complaint is his pursuit of injunctive
relief requiring reasonable accommodations for his alleged
disability at a DOCCS facility. (See id. ¶ 30, at 11–12.)After
Steinhaus was dismissed as a party by the court sua sponte,
(seeDkt. No. 8), the remaining defendants interposed an

II. Background
Jones is an inmate in the custody of DOCCS. (See Defs.'
Statement of Material Facts (SMF) § 3, Dkt. No. 53,
Attach. 6.) On February 24, 2011, Jones alleges that he was
transferred from Marcy Correctional to Wallkill Correctional
for the purpose of receiving vocational training in the
“Corcraft DSS/D[O]CCS Eyeglass Project Optical Lens
Laboratories,” and for housing. (Am. Compl. ¶ 26; see
Defs.' SMF ¶ 6.) Jones further claims that, upon intake at
Wallkill, DOCCS officials noted that he needed the assistance
of crutches to ambulate, which rendered him ineligible for
housing given certain architectural limitations at that facility.
(See Defs.' SMF ¶ 7; Am. Compl. ¶¶ 27–31.) Because
of his “disability,” Jones “was immediately transferred to
Shawangunk” Correctional. (Am. Compl. ¶ 32; see Defs.'
SMF ¶ 7.)
Once at Shawangunk, Jones claims that he was quarantined
in the infirmary from February 21, 2011 to April 2011, and
that while therein, he was not provided adequate heating or
clean water, which rendered the conditions of his confinement
“unfit for human habitation.” (Am. Compl. ¶¶ 34–35; see
Defs.' SMF § 8.) In early April 2011, 4 Jones alleges that
he was transferred back to Marcy in retaliation for filing
a grievance “demanding a[r]easonable [a]ccomodation or to
be transferred to a suitable handicapped accessible facility
within five working days.”(Am.Compl.¶¶ 41–42.) Jones
commenced this action in July 2011. (SeeDkt. No. 1.) Soon
thereafter, he filed the operative Amended Complaint. (See
Am. Compl.)

© 2015 Thomson Reuters. No claim to original U.S. Government Works.

1

Jones v. Fischer, Slip Copy (2013)
2013 WL 4039377

4

III. Standard of Review
*2 Before entering final judgment, this court routinely
reviews all report and recommendation orders in cases it
has referred to a magistrate judge. If a party has objected
to specific elements of the magistrate judge's findings and
recommendations, this court reviews those findings and
recommendations de novo.See Almonte v. N.Y. State Div. of
Parole, No. 04–cv–484, 2006 WL 149049, at *6–7 (N.D.N.Y.
Jan. 18, 2006). In those cases where no party has filed an
objection, or only a vague or general objection has been filed,
this court reviews the findings and recommendations of the
magistrate judge for clear error. 5 See id.
5

“[A] report is clearly erroneous if the court determines
that there is a mistake of fact or law which is obvious and
affects substantial rights.”Almonte, 2006 W L 149049, at
*6.

IV. Discussion
As a threshold matter, the court must determine what to make
of the document filed by Jones titled “Plaintiff[']s Objection
to Report & Recommendation” (hereinafter “the objections”),
and his late-filed response to defendants' summary judgment
motion. (See Dkt. Nos. 58, 59.)In the objections, Jones takes
issue with the R & R because, according to him, his claims
were “dismissed [f]or failure to respond” by February 5, 2013.
(Dkt. No. 58 ¶ 4.) Jones claims that he placed three copies of
his response in a mailbox at the facility in which he is housed
on February 5, 2013, and that, because of his indigence and
“an unwritten [prison] rule,” his mail was delayed. (Id. at 1–
2.) 6 The objections also include a separate letter, the subject
of which is “Mail Box Rule,” that reiterates Jones' contentions
and provides legal argument about the prisoner mailbox rule.
(SeeDkt. No. 58, Attach. 1.)
6

whatsoever to do with claims that were asserted in
the Amended Complaint, the court disregards Jones'
references to any new claims. See Jackson v. Onondaga
Cnty., 549 F.Supp.2d 204, 219–20 (N.D.N.Y.2008); see
also Wright v. Ernst & Young LLP, 152 F.3d 169, 178
(2d Cir.1998).

The court appreciates that Jones' Amended Complaint
states that his transfer back to Marcy occurred “in early
April 2001”; it is clear, given Jones' other allegations,
that he intended to specify 2011, as opposed to 2001,
as the year in which the transfer to Marcy occurred.
(Am.Compl.¶ 42.)

Jones attempts to allege several new claims related to the
supposed delay of his mail in the objections. (SeeDkt.
No. 58 ¶¶ 7–9.) Because the discovery deadlines
have expired and Jones' new allegations have nothing

The objections offer no other critique of the R & R, and can
be summarily rejected because Jones' only relevant attack
on the R & R—that his failure to respond was the basis for
dismissing his Amended Complaint, (seeDkt. No. 58 ¶ 4)—is
entirely mistaken. Indeed, the R & R acknowledged that Jones
failed to timely respond despite requesting and receiving an
extension of time, but, nonetheless, explained that “[e]ven
in the absence of a response, defendants [would be] entitled
to judgment only if the material facts demonstrate[d] their
entitlement to judgment as a matter of law.”(Dkt. No. 57 at 3.)
Jones' response to defendants' summary judgment motion is a
more complicated matter. The cover letter to that submission,
which is dated January 5, 2013, is the same letter regarding
the prisoner mailbox rule that was filed as part of the
objections. (CompareDkt. No. 59,withDkt. No. 58, Attach. 1.)
The affidavit of service included with Jones' memorandum
of law in response to defendants' summary judgment motion,
indicates that, on February 5, 2013, Jones placed three copies
of his response papers in a mailbox at the facility where
he is housed. (SeeDkt. No. 59, Attach. 1 at 26.) While the
court has some doubts about the authenticity of the affidavit
of service, 7 in an abundance of caution, it will treat Jones'
response as properly filed objections to the R & R. 8 In light
thereof, given the content of the response, the court conducts a
de novo review of the issues. See Almonte, 2006 WL 149049,
at *6.
7

The affidavits of service accompanying Jones'
memorandum of law, (seeDkt. No. 59, Attach. 1 at 26),
affidavit, (seeDkt. No. 59, Attach. 2 at 4), and response
to defendants' Statement of Material Facts, (seeDkt.
No. 59, Attach. 3 at 6), are clearly photocopies of the
same document, with the sole difference between them
being that the affidavit of service to the memorandum
of law indicates that “3 copies [of] Plaintiffs [ (sic) ]
Opposition” were mailed.

8

Notably, in his response, Jones attempts to further
augment his Amended Complaint by adding claims
under the First Amendment, and Equal Protection and
Due Process Clauses. (SeeDkt. No. 59, Attach. 1 ¶¶
34–35, 59.) Because those new allegations are made in
response to a summary judgment motion, as opposed to

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a motion to dismiss, and after discovery has concluded,
they do not effectively amend the Amended Complaint,
are rejected, and not considered. See Onondaga Cnty.,
549 F.Supp.2d at 220.

*3 After careful consideration of the arguments advanced
by Jones in his response to defendants' summary judgment
motion, Judge Hummel's conclusion that dismissal is
appropriate is correct largely for the reasons stated in the R &
R. In addition to the analysis provided therein, two additional
points ought be made.
First, as to whether or not Jones can obtain declaratory
relief given the prospect that his transfer out of the facilities
about which he complains would moot his claim for such
relief, “ ‘[t]he Eleventh Amendment and the principles
governing the issuance of declaratory judgments prohibit
the award of a declaration that state officials' prior conduct
violated federal law.’“ La Scalia v. Driscoll, No. 10–CV–
5007, 2012 WL 1041456, at *8 (E.D.N.Y. Mar. 26, 2012)
(quoting Rothenberg v. Stone, 234 F.Supp.2d 217, 221
(E.D.N.Y.2002)); see Ward v. Thomas, 207 F.3d 114, 120
(2d Cir.2000). Thus, dismissal of that aspect of his Amended
Complaint is undoubtedly warranted. Second, the R & R did
not specifically address Jones' allegation of discrimination
based upon DOCCS Directive 2614. (See Am. Compl. ¶¶
45–51.) That claim, however, must be dismissed because
“[v]iolations of state law do not give rise to claims under
42 U.S.C. § 1983[, and, m]ore specifically, a violation of a
DOCCS directive does not state a claim for a constitutional
violation under § 1983.”Tuitt v. Chase, No. 9:11–CV–0776,
2013 WL 877439, at *10 (N.D.N.Y. Jan. 30, 2013).

ORDERED that the Clerk provide a copy of this
MemorandumDecision and Order to the parties.
IT IS SO ORDERED.

ROBERT JONES,
Plaintiff,
v.
BRIAN FISCHER, Commissioner, DOCCS; KENNETH S.
PERLMAN, Deputy Commissioner for Programs; JOSEPH
SMITH, Superintendent, Shawangunk Correctional Facility;
John Doe # 2–6, Employees of DOCCS; Jane Doe # 1–
5, Employees of DOCCS; MR. PHILLIPS, Superintendent,
Wallkill Correctional Facility; OSBOURNE McKAY,
Deputy Commissioner of Industries/Accreditation Corcraft
DSS/DOCCS Eyeglass Project Optical Lens Laboratory;
State of New York Department of Corrections and
Community Supervision,
Defendants. 1
1
By Decision and Order, “Mr. Phillips, Superintendent,
Wallkill Correctional Facility” is a defendant in place
of “John Doe # 1,” “Osbourne McKay, Deputy
Commissioner of Industries/Accreditation Corcraft DSS/
DOCCS Eyeglass Project Optical Lens Laboratory, State
of New York Department of Corrections and Community
Supervision,” is a defendant in place of “Corcraft DSS/
DOCCS Eyeglass Project Optical Lens Laboratories,”
and defendant Dutchess County Executive William
R. Steinhaus was dismissed without prejudice as a
defendant in this action. Dkt. No. 8 at 2–3.

V. Conclusion
ROBERT JONES
WHEREFORE, for the foregoing reasons, it is hereby
Plaintiff Pro Se
ORDERED that Magistrate Judge Christian F. Hummel's
ReportRecommendation and Order (Dkt. No. 57) is
ADOPTED in its entirety; and it is further
ORDERED that defendants' motion for summary judgment
(Dkt. No. 53) is GRANTED; and it is further
ORDERED that Jones' Amended Complaint (Dkt. No. 7) is
DISMISSED; and it is further

3491201713
George Matchan Detention Center 2
2
The record reflects that the “George Matchan Detention
Center” is actually spelled “George Motchan Detention
Center.” Dkt. No. 53–5 at 1. The latter spelling is used
for this Report–Recommendation.

1515 Hazen Street
ORDERED that the Clerk close this case; and it is further

East Elmhurst, N.Y. 11370

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REPORT–RECOMMENDATION AND ORDER 3
3

This matter was referred to the undersigned for report
and recommendation pursuant to 28 U.S.C. § 636(b) and
N.D.N.Y.L.R. 72.3(c).

CHRISTIAN F. HUMMEL, United States Magistrate Judge.
Plaintiff pro se Robert Jones (“Jones”), an inmate formerly
in the custody of the New York State Department of
Correctional and Community Supervision (“DOCCS”),
brings this action pursuant to 42 U.S.C. § 1983 alleging that
defendants, five DOCCS employees, five Jane Does, four
John Does, and DOCCS, violated his constitutional rights
under the First, Eighth, and Fourteenth Amendments. Am.
Compl. (Dkt. No. 7). Jones also asserts claims pursuant to
Title II of the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101 et seq., the Rehabilitation Act, 29 U.S.C. §
701 et seq., and the Religious Land Use and Institutionalized
Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc–1 et
seq. Id.Presently pending is defendants' motion for summary
judgment pursuant to Fed.R.Civ.P. 56. Dkt. No. 53.Jones
has not opposed the motion. For the following reasons, it is
recommended that defendants' motion be granted in part and
denied in part.

I. Failure to Respond
*4 Jones did not oppose defendants' motion although he
was granted an extension of time to do so. See Text Order
dated 1/24/2013. “Summary judgment should not be entered
by default against a pro se plaintiff who has not been
given any notice that failure to respond will be deemed a
default.”Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996).
Defendants provided notice in their motion papers as required
by the Second Circuit and as normally done by the office
of defendants' counsel. Id.; Dkt. No. 53–1.Further, the Court
provided such notice by mail. Dkt. No. 55–1.Despite both the
notice and the extension of time, Jones failed to respond.
“The fact that there has been no response to a summary
judgment motion does not ... mean that the motion is to be
granted automatically.”Champion, 76 F.3d at 486. Even in
the absence of a response, defendants are entitled to judgment
only if the material facts demonstrate their entitlement to
judgment as a matter of law. Id.;FED. R. CIV. P. 56(c).“A
verified complaint is to be treated as an affidavit ... and

therefore will be considered in determining whether material
issues of fact exist....”Colon v. Coughlin, 58 F.3d 865, 872
(2d Cir.1995) (citations omitted). The facts set forth in
defendants' Rule 7.1 Statement of Material Facts (Dkt. No.
53–6) [hereinafter “Defs.' Statement”] are accepted as true
as to those facts that are not disputed in Jones's verified
amended complaint. 4 N.D.N.Y .L.R. 7.1(a)(3) (“The Court
shall deem admitted any properly supported facts set forth
in the Statement of Facts that the opposing party does not
specifically controvert.”) (emphasis omitted).
4

Generally, “[a] party shall not incorporate any portion
of its prior pleading into the proposed amended pleading
by reference.”N.D.N.Y.L.R. 7.1(a)(4). Jones referenced
three exhibits in his amended complaint that clearly refer
to the exhibits attached to his original complaint. This
Court considers his amended complaint as including
those original exhibits.

II. Background
On February 24, 2011, Jones was transferred from Marcy
Correctional Facility (“Marcy”) to Wallkill Correctional
Facility (“Wallkill”) for housing and vocational training.
Defs.' Statement ¶ 6; Am. Compl. ¶ 26. Jones alleged
that Wallkill presented architectural barriers to his alleged
disabilities. Defs.' Statement ¶ 7; Am. Compl. ¶¶ 30–31.
Jones was then transferred to the Shawangunk Correctional
Facility (“Shawangunk”). Defs.' Statement ¶ 7; Am. Compl.
¶ 32. Upon his arrival at Shawangunk, Jones alleged that he
was “quarantined” in the infirmary, which lacked adequate
heating and clean drinking water from February 24, 2011
through April 2011. Defs.' Statement ¶ 8; Am. Compl. ¶¶ 34–
35.
As of December 12, 2012, DOCCS's records show that Jones
had filed five grievances, two of which were filed at Marcy
in 2010. Defs.' Statement ¶ 16; Hale Aff. (Dkt. No. 53–3) ¶
4; Dkt. No. 53–4.Jones is currently at the George Motchan
Detention Center, which is a New York City facility. Defs.'
Statement ¶ 5; Dkt. No. 53–5.
For purposes of § 1983, Jones alleged that defendants acted
in their individual and official capacities. Defs.' Statement ¶
9; Am. Compl. ¶ 21. For the ADA and Rehabilitation Act
claims, Jones alleged that defendant Phillips discriminated
against him generally and defendant McKay discriminated
against him by denying him access to the Optics program for

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vocational training. Defs.' Statement ¶ 10; Am. Compl. ¶¶ 47,
49.
*5 For the conditions of confinement 5 and wrongful
segregation claims, Jones listed all defendants in the pointheadings but did not make specific allegations as to any
defendant. Defs.' Statement ¶¶ 11–12; Am. Compl. ¶¶ 52–60.
For the medical indifference claim, Jones alleged that
5

Jones labeled this claim as a “failure to protect.” Am.
Compl. ¶ ¶ 52–56. However, his allegations surrounding
inadequate heating and the unavailability of clean
drinking water are more appropriately framed as a
“conditions of confinement” claim.

have discretion to grant extensions even in the absence of
good cause.”Zapata v. City of New York, 502 F.3d 192, 196
(2d Cir.2007).
In this case, more than one year had passed since Jones
filed his amended complaint on October 25, 2011, naming
Phillips a defendant. Am. Compl. Even though Jones had
updated the Court with his new addresses (Dkt.Nos.12, 24,
25) and requested and received an extension to respond to
this instant motion, Jones has failed to provide the Court with
any reasons, let alone good cause, for the service failure with
Phillips. Jones failed to both seek assistance with the service
failure and oppose defendants' motion. Thus, Phillips should
be dismissed from this action.

[all defendants] owed a duty of care to [him] and failed
in that duty, and were deliberately indifferent to [his]
disability and serious medical needs by failing to provide
necessary reasonable accommodations for the handicapped
at Wallkill [C]orrectional [F]acility, thereby depriving
[him] access to the federally funded Optics program for
which he was otherwise eligible.
Defs.' Statement ¶ 13; Am. Compl. ¶ 62.
For his RLUIPA claim, Jones asserted “the defendants would
not allow him to attend religious services for over thirty
days, nor did they provide a Muslim chaplain to see him
or conduct services.”Defs.' Statement ¶ 14; Am. Compl. ¶
67. And finally, for his First Amendment retaliation claim,
Jones did not make specific allegations against any particular
defendant. Defs.' Statement ¶ 15; Am. Compl. ¶¶ 70–71.

Accordingly, defendants' motion on this ground should be
granted.

Phillips has not been served in this action. Defs.' Statement ¶
10; Dkt. No. 11 (returning summons because Wallkill did not
have a superintendent named Phillips).

*6 Article III, Section 2, Clause 1 of the United States
Constitution limits the jurisdiction of federal courts to resolve
“cases” or “controversies.” U.S. CONST. art. III, § 2, cl.1.
In order “[t]o sustain ... jurisdiction in the present case, it is
not enough that a dispute [be] very much alive when suit was
filed, or when review was obtained....”Lewis v. Continental
Bank Corp., 494 U.S. 472, 477 (1990)). Thus, “throughout the
litigation, the plaintiff ‘must have suffered, or be threatened
with, an actual injury traceable to the defendant and likely to
be redressed by a favorable judicial decision.’ “ Spencer v.
Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis, 494 U.S. at 477
(1990)).

III. Service of Summon and Complaint
Defendants, though modestly, argue that since Phillips has
not been served with process, he should be dismissed from
this action. Defs.' Mem. of Law (Dkt. No. 7) at 4. Where a
defendant has not been served with process within 120 days
after the complaint is filed, the Court must, on motion or
sua sponte after notifying the plaintiff, dismiss the complaint
without prejudice as to that defendant or “order that service
be made within a specified time.”FED. R. CIV. P. 4(m). If,
however, the plaintiff demonstrates good cause for service
failures, the Court must also extend the time to serve. Id.
Additionally, the Second Circuit has held that “district courts

IV. Discussion
Jones contends that his rights were violated under the
First, Eighth, and Fourteenth Amendments, the ADA,
Rehabilitation Act, and RLUIPA. Defendants move for
summary judgment on the issues of mootness, exhaustion,
Eleventh Amendment immunity, personal involvement, and
Jones's failure to state an ADA claim.

A. Mootness

In this case, although not expressly stated, the nature of
Jones's claims makes out a request for injunctive relief. See,
e.g., Am. Compl. ¶ 30 (enumerating Wallkill's architectural
barriers for inmates with disabilities, including inter alia
the lack of handrails in the showers, wheelchair ramps, and

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low level sinks), ¶¶ 34–35 (alleging Shawangunk's failure to
provide adequate heating and clean water when quarantined
at Shawangunk). Jones expressly seeks declaratory relief.
Am. Compl. at 12. Jones was previously incarcerated at
Marcy, Wallkill, and Shawangunk. Jones's transfer from these
correctional facilities to George Motchan moots any claims
for injunctive or declaratory relief. Therefore, there is no
live controversy and the Court no longer has jurisdiction
over these potential claims for relief. See, e.g., Salahuddin
v. Goord, 467 F.3d 263, 272 (2d Cir.2006) (holding that
all injunctive and declaratory claims were mooted by the
plaintiff's transfer from a prison facility); Prins v. Coughlin,
76 F.3d 504, 506 (2d Cir.1996) (“It is settled in this Circuit
that a transfer from a prison facility moots an action for
injunctive relief against the transferring facility”).
Accordingly, defendants' motion on this ground should be
granted.

B. Legal Standard
A motion for summary judgment may be granted if there is no
genuine issue as to any material fact if supported by affidavits
or other suitable evidence and the moving party is entitled to
judgment as a matter of law. The moving party has the burden
to show the absence of disputed material facts by informing
the court of portions of pleadings, depositions, and affidavits
which support the motion. FED. R. CIV. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts are material
if they may affect the outcome of the case as determined by
substantive law. Anderson v. Liberty Lobby, 477 U.S. 242,
248 (1986). All ambiguities are resolved and all reasonable
inferences are drawn in favor of the non-moving party. Skubel
v. Fuoroli, 113 F.3d 330, 334 (2d Cir.1997).

party for a court to grant a motion for summary judgment.
Gallo v. Prudential Residential Servs. 22 F.3d 1219, 1223–
24 (2d Cir.1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d
Cir.1988).
*7 When, as here, a party seeks judgment against a pro se
litigant, a court must afford the non-movant special solicitude.
See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477
(2d Cir.2006). As the Second Circuit has stated,
[t]here are many cases in which we have said that a pro se
litigant is entitled to “special solicitude,” ... that a pro se
litigant's submissions must be construed “liberally,”... and
that such submissions must be read to raise the strongest
arguments that they “suggest,”.... At the same time, our
cases have also indicated that we cannot read into pro se
submissions claims that are not “consistent” with the pro se
litigant's allegations, ... or arguments that the submissions
themselves do not “suggest,” ... that we should not “excuse
frivolous or vexatious filings by pro se litigants,”... and that
pro se status “does not exempt a party from compliance
with relevant rules of procedural and substantive law....”
Id.(citations and footnote omitted); see also Sealed Plaintiff
v. Sealed Defendant # 1, 537 F.3d 185, 191–92 (2d Cir.2008)
(“On occasions too numerous to count, we have reminded
district courts that ‘when [a] plaintiff proceeds pro se, ...
a court is obliged to construe his pleadings liberally.’
“ (citations omitted)). However, the mere existence of some
alleged factual dispute between the parties will not defeat an
otherwise properly supported motion; the requirement is that
there be no genuine issue of material fact.Anderson, 477 U.S.
at 247–48.

C. Exhaustion
The party opposing the motion must set forth facts showing
that there is a genuine issue for trial. The non-moving party
must do more than merely show that there is some doubt or
speculation as to the true nature of the facts.Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
“Conclusory allegations or unsubstantiated speculation” may
not be relied upon. Jeffreys v. City of New York, 426 F.3d
549, 554 (2d Cir.2005) (citations omitted). The non-movant
“must offer some hard evidence showing that its version
of the events is not wholly fanciful.”Id. (citing D'Amico
v. City of New York, 132 F.3d 145, 149 (2d Cir.1998))
(internal quotation marks omitted). It must be apparent that no
rational finder of fact could find in favor of the non-moving

Under the Prison Litigation Reform Act of 1995 (“PLRA”),
42 U.S .C. § 1997e(a), an inmate must exhaust all
administrative remedies prior to bringing any suits
challenging prison conditions, including federal civil rights
cases.Porter v. Nussle, 534 U.S. 516, 524 (2002); see also
Woodford v. Ngo, 548 U.S. 81, 83 (2006). This exhaustion
requirement applies to all prison condition claims. Porter, 534
U.S. at 532. “[A]ny deprivation that does not affect the fact or
duration of a prisoner's overall confinement is necessarily a
condition of that confinement.”Jenkins v. Haubert, 179 F.3d
19, 28 (2d Cir.1999). The exhaustion requirement also applies
even if the administrative grievance process does not provide

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for all the relief requested by the inmate. Nussle, 534 U.S. at
524.
Exhaustion for an inmate in DOCCS custody is
generally achieved through the Inmate Grievance Program
(“IGP”).SeeN.Y. COMP.CODES R. & REGS. tit. 7, § 701.1,
et seq. (2012).
The IGP has a regular threetiered process for adjudicating inmate
complaints: (1) the prisoner files a
grievance with the Inmate Grievance
Resolution Committee (“IGRC”) [;]
(2) the prisoner may appeal an
adverse decision by the IGRC to
the superintendent of the facility[;]
and (3) the prisoner then may
appeal an adverse decision by the
superintendent to the Central Officer
Review Committee (“CORC”).
*8 Espinal v. Goord, 588 F.3d 119, 125 (2d Cir.2009) (citing
in footnote, the current N.Y. COMP.CODES R. & REGS. tit.
7, § 701.5 (2012)). Exhaustion must precede filing a lawsuit.
Neal v. Goord, 267 F.3d 116, 122 (2d Cir.2001) (“Subsequent
exhaustion after suit is filed therefore is insufficient.”),
abrogated in part on other grounds byPorter, 534 U.S. 516.
While the Supreme Court has deemed exhaustion mandatory,
the Second Circuit has recognized that “certain caveats
apply.” Ruggiero v. Cnty. of Orange, 467 F.3d 170, 175 (2d
Cir.2006) (citing Giano v. Goord, 380 F.3d 670, 677 (2d
Cir.2004)). The failure to exhaust may be excused in limited
circumstances.
In determining whether such an
exception is applicable, a district court
must apply a three-part test: First,
the court must determine whether
administrative remedies in fact were
available to the prisoner. Second, if
such remedies were available, the
court must determine whether the
defendants' own actions inhibited the
inmate's exhaustion of administrative
remedies, thereby requiring that one or
more of them be equitably estopped
from raising the failure to exhaust as
a defense. Finally, if administrative
remedies were available and the

defendants are not estopped, the court
must determine whether any special
circumstances justify the prisoner's
failure to comply with administrative
procedural requirements.
Gayle v. Benware, 716 F.Supp.2d 293, 298 (S.D.N.Y.2010)
(internal citations omitted); see generally Hemphill v. New
York, 380 F.3d 680, 686 (2d Cir.2004) (articulating above
test as the appropriate method for excusing failure to
exhaust given the present state of all Second Circuit
opinions).“Unavailability of administrative remedies ... is an
objective [test]: that is, would a similarly situated individual
of ordinary firmness have deemed them unavailable.”Kasiem
v. Switz, 756 F.Supp.2d 570, 576–77 (S.D.N.Y.2010)
(internal quotation marks and citations omitted). Estoppel
occurs when “an inmate reasonably understands that pursuing
a grievance through the administrative process will be
futile or impossible ... [as evidenced by] prison officials'
threats, beatings, ... denials of grievance forms, or by other
misconduct deterring [the inmate] from fulfilling the requisite
procedure.”Id. at 577 (internal quotation marks and citations
omitted). If an inmate claims estoppel and continues to file
complaints and grievances, the exception is inapplicable.
Id. Special circumstances exist when an inmate's failure to
comply can be justified. Id. (citations omitted). Justification
is found “by looking at the circumstances which might
understandably lead usually uncounselled prisoners to fail to
grieve in the normally required way.”Giano v. Goord, 380
F.3d 670, 678 (2d Cir.2004) (citations omitted).
In this case, a question of fact remains with respect to
whether a special circumstance justifies Jones's failure to
comply with exhaustion requirements. DOCCS's records
show that no grievances were filed or appealed in 2011 and
none of Jones's documented grievances involved inadequate
heating and water, access to programming, or participation
in religious activities. On the other hand, Jones submitted a
grievance dated April 12, 2011 addressed to Wallkill while
he was housed at Marcy, complaining of the confinement
conditions and lack of accommodations at Wallkill and
Shawangunk. 6 Dkt. No. 1–1 at 3. Non-party and Wallkill
employee P. Henn responded that pursuant to Directive
# 4040, Jones must file the grievance at Marcy, where
Jones was housed, even though the grievance was filed
against Wallkill's employees. Id. at 9. Per these instructions,
Jones submitted a grievance letter to Marcy, which was
unanswered. 7 Am. Compl. ¶¶ 10, 17–18, 44. Jones explained
that the silence to his complaints compelled him to file

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this lawsuit. Id. ¶ 20. Exhaustion is an affirmative defense
that defendants bear the burden of raising and proving.
Jones v. Bock, 549 U.S. 199, 211–17 (2007). Defendants'
reliance on DOCCS's records to contest Jones's allegations
is insufficient to show an absence of a factual dispute
because an unanswered grievance, presumably, would not
be documented in DOCCS's records. Thus, based on the
evidence before the Court, there remains a question of fact
as to whether Jones should be excused from the exhaustion
requirement. 8
6

Jones also alleged that he filed two more grievances.
Jones submitted a letter dated March 13, 2011 requesting
Wallkill to send his legal papers to him at Shawangunk.
Dkt. No. 1–1 at 1. Jones confirmed that he received his
legal work and referenced an attached exhibit containing
a March 13, 2011 grievance. Id. However, the exhibit is
a grievance dated April 12, 2011, not March 13. Id. at 2.
The second grievance was filed on March 28, 2011, but
Shawangunk did not respond, Am. Compl. ¶ 16, nor did
Jones present it to the Court.

7

Jones alleged that he wrote a letter to non-party Bellnier,
Marcy's superintendent, which was left unanswered. Am.
Compl. ¶ 19. However, this letter was not submitted to
the Court.

8

For the first part of the test, Jones does not contend that
the grievance procedure was unavailable to him. As for
the second part, Jones's unanswered grievance addressed
to Marcy did not concern Marcy's employees, who are
also not parties to this action. Therefore, those two steps
do not present an issue of fact for the exhaustion analysis.

*9 Accordingly, defendants' motion on this ground should
be denied.

D. Eleventh Amendment
The Eleventh Amendment provides that “[t]he Judicial power
of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of
the United States by Citizens of another State, or by Citizens
or Subjects of any Foreign State.”U.S. CONST. amend.
XI.“[D]espite the limited terms of the Eleventh Amendment,
a federal court [cannot] entertain a suit brought by a citizen
against his [or her] own State .”Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 98 (1984) (citing Hans v.
Louisiana, 134 U.S. 1, 21 (1890)). Regardless of the nature
of the relief sought, in the absence of the State's consent

or waiver of immunity, a suit against the State or one of
its agencies or departments is proscribed by the Eleventh
Amendment. Halderman, 465 U.S. at 100. Section 1983
claims do not abrogate the Eleventh Amendment immunity of
the states. See Quern v. Jordan, 440 U.S. 332, 340–41 (1979).
A suit against a state official in his or her official capacity is a
suit against the entity that employs the official. Farid v. Smith,
850 F.2d 917, 921 (2d Cir.1988) (citing Edelman v. Jordan,
415 U.S. 651, 663 (1974)).“Thus, while an award of damages
against an official in his personal capacity can be executed
only against the official's personal assets, a plaintiff seeking
to recover on a damages judgment in an official-capacity suit
must look to the government entity itself,” rendering the latter
suit for money damages barred even though it was asserted
against the individual officer. Kentucky v. Graham, 473 U.S.
159, 166 (1985). Here, Jones seeks monetary damages against
defendants in their official capacities for acts occurring within
the scope of their duties with DOCCS. Thus, the Eleventh
Amendment bar applies and serves to prohibit Jones's claims
for monetary damages against defendants in their official
capacities.
Accordingly, defendants' motion on this ground should be
granted.

E. Personal Involvement
Defendants contend that, Jones failed to establish their
personal involvement in the alleged constitutional violations.
Defs.' Mem. of Law at 12–13.“ ‘[P]ersonal involvement
of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.’ “ Wright
v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (quoting Moffitt v.
Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991)). Thus,
supervisory officials may not be held liable merely because
they held a position of authority. Id.;Black v. Coughlin, 76
F.3d 72, 74 (2d Cir.1996). However, supervisory personnel
may be considered “personally involved” if:
(1) [T]he defendant participated directly in the alleged
constitutional violation;
(2) the defendant, after being informed of the violation
through a report or appeal, failed to remedy the
wrong; the defendant created a policy or custom under
which unconstitutional practices occurred, or allowed the
continuance of such a policy or custom;

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*10 (3) the defendant was grossly negligent in
supervising subordinates who committed the wrongful
acts; or
(5) the defendant exhibited deliberate indifference to the
rights of inmates by failing to act on information indicating
that unconstitutional acts were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (citing
Williams v. Smith, 781 F.2d 319, 323–24 (2d Cir.1986)). 9
9

Various courts in the Second Circuit have postulated
how, if at all, the Iqbal decision affected the five
Colon factors which were traditionally used to determine
personal involvement. Pearce v. Estate of Longo, 766
F.Supp.2d 367, 376 (N.D.N.Y.2011), rev'd in part on
other grounds sub nom., Pearce v. Labella, 473 F. App'x
16 (2d Cir.2012) (recognizing that several district courts
in the Second Circuit have debated Iqbal's impact on the
five Colon factors); Kleehammer v. Monroe Cnty., 743
F.Supp.2d 175 (W.D.N.Y.2010) (holding that “[o]nly the
first and part of the third Colon categories pass Iqbal's
muster....”); D'Olimpio v. Crisafi, 718 F.Supp.2d 340,
347 (S.D.N.Y.2010) (disagreeing that Iqbal eliminated
Colon's personal involvement standard).

Jones essentially alleged that all defendants were directly
involved in the alleged constitutional violations that occurred
at Wallkill and Shawangunk. However, only two defendants
allegedly worked at either facility—Superintendent Phillips
at Wallkill, who was not served with process in this
action, and Superintendent Smith at Shawangunk. Further,
Jones's conclusory allegations with respect to defendants'
direct involvement are unsubstantiated by any facts or
evidence. Jeffreys, 426 F.3d at 554. Moreover, liberally
construing Jones's amended complaint, aside for the unnamed
defendants, the gravamen of Jones's complaints against the
individual defendants is that they were in a position of power,
thus always involved with anything occurring in conjunction
with Jones's incarceration. Nevertheless, attempts to establish
personal involvement based upon the supervisory role these
defendants occupied is inappropriate. Wright, 21 F.3d at 501
(holding that a position in a hierarchical chain of command,
without more, is insufficient to support a showing of personal
involvement).
To the extent that Jones seeks to establish Phillips's
knowledge of his complaints through Henn's response to his
grievance, such an attempt must also fail. Merely writing
letters and grievances to a defendant is insufficient to

establish notice and personal involvement. Smart v. Goord,
441 F.Supp.2d 631, 643 (S.D.N.Y.2006) (“Commissioner ...
cannot be held liable on the sole basis that he did not
act in response to letters of protest sent by [plaintiff]....”).
Similarly, receipt of a letter or grievance, without personally
investigating or acting on the letter or grievance, is
insufficient to establish personal involvement. See, e.g.,
Rivera v. Fischer, 655 F.Supp.2d 235, 238 (W.D.N.Y .2009)
(citing cases); Boddie v. Morgenthau, 342 F.Supp.2d 193,
203 (S.D.N.Y.2004) (“While mere receipt of a letter from
a prisoner is insufficient to establish individual liability ...
[p]ersonal involvement will be found ... where a supervisory
official receives and acts on a prisoner's grievance or
otherwise reviews and responds to a prisoner's complaint.”).
There is neither record evidence indicating that Jones wrote
a letter or grievance to Phillips nor that Phillips investigated
or acted on any of Jones's complaints. Furthermore, there is
also nothing in the record indicating that any of the defendants
created a policy or custom under which unconstitutional
practices occurred, were grossly negligent in their supervision
of subordinates, or exhibited deliberate indifference to Jones's
rights.
*11 Accordingly, defendants' motion on this ground should
be granted.

F. ADA and Rehabilitation Act Claims
In order to state an ADA claim, 42 U.S.C. § 12132 requires
an inmate to demonstrate that:
(1) he or she is a ‘qualified individual
with a disability’; (2) he or she
is being excluded from participation
in, or being denied the benefits of
some service, program, or activity by
reason of his or her disability; and (3)
the entity [that] provides the service,
program, or activity is a public entity.
Id.; see also Pennsylvania Dep't of Corr., 524 U.S. at 209.
As to the first element, a person is an individual with a
qualified disability if “(A) a physical or mental impairment...
substantially limits one or more of the major life activities of
such individual, (B) [there is] a record of such an impairment,
or (C) [the individual is] being regarded as having such an
impairment.”42 U.S.C. § 12102(1)(A)-(C).

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9

Jones v. Fischer, Slip Copy (2013)
2013 WL 4039377

To determine if an individual meets
any of the above criteria, courts apply
a three part test ... First, a plaintiff
must show that [he or] she suffers
from a physical or mental impairment.
Second, the plaintiff must establish
that the activity [he or] she alleges
to be impaired constitutes a “major
life activity.” Third, the plaintiff must
show that [his or] her impairment
“substantially limits” the major life
activity previously identified.
Smith v. Masterson, 538 F.Supp.2d 653, 657 (S.D.N.Y.2008)
(internal citations omitted). Major life activities are defined
as “walking, standing, sitting....” 29 C.F.R. § 1630.2(i)(1).
In this case, Jones is barred from bringing an ADA
claim. First, under the ADA, Jones is barred from suing
the individual defendants in their individual and official
capacities for monetary damages. Garcia v. S.U.N.Y. Health
Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir.2001).
Second, Jones may seek monetary relief against the state if the
alleged violation “was motivated by discriminatory animus or
ill will based on the plaintiff's disability.”Id. at 111.However,
Jones does not allege any discriminatory animus on the part of
the defendants. Thus, Jones is barred from seeking monetary
relief from the state defendant. Third, as discussed above
in subsection IV(A), injunctive and declaratory relief claims
are mooted by Jones's transfer out of the allegedly offending
prison facilities. Because Jones cannot obtain any sort of
judicial relief under an ADA claim, Jones cannot proceed
with the claim. Therefore, Jones's ADA claim should be
dismissed.
To the extent that Jones has asserted Rehabilitation Act
claims, they too, should be dismissed. The Rehabilitation
Act protects any “qualified individual with a disability ...
[from] be[ing] excluded from the participation in, ... [or]
denied the benefits of,” any federally funded program “solely
by reason of his or her disability....”29 U.S.C. § 794(a);
see also Clarkson v. Coughlin, 898 F.Supp. 1019, 1037–38
(S.D.N.Y.1995) (“The requirements for stating a claim under
the ADA are virtually identical to those under § 504 of the
Rehabilitation Act.”). Since Jones is barred from obtaining
judicial relief under the ADA and the requirements for stating
a claim are the same for the ADA and the Rehabilitation Act,
Jones is also barred from obtaining judicial relief under the
Rehabilitation Act claim.

*12 Accordingly, defendants' motion on these grounds
should be granted.

G. RLUIPA Claims
Defendants do not discuss Jones's RLUIPA claim in their
motion for summary judgment. However, the Court sua
sponte addresses the claim pursuant to 28 U.S.C. § 1915(e),
which directs that when a plaintiff seeks to proceed in forma
pauperis, 10 “the court shall dismiss the case at any time if the
court determines that ... the action or appeal (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).
10

By Decision and Order dated September 23, 2011, Jones
was granted in forma pauperis status to proceed in this
action. Dkt. No. 4.

The RLUIPA provides that
[n]o government shall impose a
substantial burden on the religious
exercise of a person residing in or
confined to an institution ... unless
the government demonstrates that
imposition of the burden on that person
(1) is in furtherance of a compelling
governmental interest; and (2) is the
least restrictive means of furthering
that compelling governmental interest.
42 U.S.C. § 2000cc–1(a); see also Salahuddin v. Goord,
467 F.3d 263, 273–74 (2d Cir.2006); Pugh v. Goord, 571
F.Supp.2d 477, 503 (S.D.N.Y.2008). In a RLUIPA claim,
[i]f a plaintiff produces prima facie
evidence to support a claim alleging a
violation of the Free Exercise Clause
or a violation of section 2000cc of
this title, the government shall bear
the burden of persuasion on any
element of the claim, except that
the plaintiff shall bear the burden
of persuasion on whether the law
(including a regulation) or government
practice that is challenged by the claim

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10

Jones v. Fischer, Slip Copy (2013)
2013 WL 4039377

substantially burdens the plaintiff's
exercise of religion.
42 U.S.C. § 2000cc–2(b); Pugh, 571 F.Supp.2d at 504. “The
prisoner must show at the threshold that the disputed conduct
substantially burdens his sincerely held religious beliefs.
The defendants then bear the relatively limited burden of
identifying the legitimate penological interests that justify the
impinging conduct.”Salahuddin, 467 F.3d at 274–75.

11

All unpublished opinions cited to by the Court in this
Report–Recommendation are, unless otherwise noted,
attached to this Recommendation.

*13 Accordingly, Jones's RLUIPA claim should be
dismissed.

V. Conclusion
Here, Jones's RLUIPA claim must fail as a matter of
law. First, Jones does not proffer any evidence to support
his allegations that he was denied opportunities to attend
religious services nor to visit a Muslim chaplain. 42 U.S.C. §
2000cc–2(b); Jeffreys, 426 F.3d at 554. The exhibits attached
to his original complaint do not refer to these allegations
and Jones has provided no other evidence to the Court.
Thus, Jones has failed to establish a prima facie case of
RLUIPA. Second, the Eleventh Amendment also serves to
protect state defendants in both their official and individual
capacities from RLUIPA claims for monetary damages. See
Pilgrim v.. Artus, No. 07–CV–1001 (GLS/RFT), 2010 WL
3724883, at *15–16 (N.D.N.Y. Mar. 18, 2010) (discussing
Eleventh Amendment immunity and RLUIPA decisions in
this Circuit); 11 see also Pugh v. Goord, 571 F.Supp.2d
477, 509 (S.D.N.Y.2008). As such, defendants are immune
from monetary relief. 28 U.S.C. § 1915(e)(2) (B). Third, as
discussed above in subsection IV(A), claims of injunctive
and declaratory relief are now moot. For these reasons, Jones
cannot proceed with his RLUIPA claim.
End of Document

For the reasons stated above, it is hereby RECOMMENDED
that defendants' motion for summary judgment (Dkt. No. 53)
be GRANTED as to all claims against all defendants and
Jones's amended complaint be DISMISSED (Dkt. No. 7)
with prejudice.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may
lodge written objections to the foregoing report. Such
objections shall be filed with the Clerk of the Court.
FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE
REVIEW.Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993);
Small v. Sec'y of HHS, 892 F.2d 15 (2d Cir.1989); 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

All Citations
Slip Copy, 2013 WL 4039377

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11

Justice v. McGovern, Not Reported in F.Supp.2d (2012)
2012 WL 2155275

(Compl.¶ IV.) Plaintiff asserts that there is a grievance
procedure in place at NCCC, and, in accordance with that

2012 WL 2155275
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.

procedure, he notified “them” 2 of the incident that took
place on September 8 and was seen by “I–A–U” on October
4, 2011. (Compl.¶ II.)
2

Allah JUSTICE, Plaintiff,
v.
Corporal McGOVERN, Defendant.
No. 11–CV–5076 (JS)(WDW).

|

June 12, 2012.

Attorneys and Law Firms
Allah Justice, East Meadow, NY, pro se.
Liora M. Ben–Sorek, Esq., Nassau County Attorney's Office,
Mineola, NY, for Defendant.

MEMORANDUM & ORDER
SEYBERT, District Judge.
*1 Presently pending before the Court is Defendant
Corporal McGovern's (“McGovern”) motion to dismiss
Plaintiff Allah Justice's Complaint. For the reasons that
follow, McGovern's motion is GRANTED.

The Complaint does not specify who he notified or how.

Although Plaintiff does not allege that he sustained any
injuries or needed any medical treatment as a result of the
incident (Compl.¶ IV.A), he seeks to recover $20,000,000
(Compl.¶ V). Plaintiff also seeks to have the Defendant
“removed from his place of employment and jailed for his
actions.”(Compl.¶ V.)
The Complaint, filed on October 17, 2011, was accompanied
by an application to proceed in forma pauperis.On December
6, 2011, this Court granted Plaintiff's request to proceed
without prepayment of the filing fee but dismissed the claims
asserted against the Nassau County Sheriff pursuant to 28
U.S.C. § 1915(e)(2)(B) because “Plaintiff's Complaint does
not include any factual allegations sufficient to demonstrate
any personal involvement of Defendant Sposato.”(Docket
Entry 6, at 6.)
On December 26, 2011, McGovern filed the pending motion
to dismiss the remainder of the Complaint for failure to state
a claim under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. (Docket Entry 8.)

BACKGROUND
DISCUSSION
Plaintiff commenced this pro se action against McGovern
and the Sheriff of the Nassau County Correctional Facility 1
(“NCCC”) alleging violations of his civil rights pursuant to 42
U.S.C. § 1983. The Complaint, which is handwritten on the
Court's civil rights complaint form, alleges a single paragraph
which states that:
1

The Court previously took judicial notice that the Sheriff
of Nassau County is Michael J. Sposato. (Docket Entry
6, at n. 1.)

On September 8th 2011 while entering the Nassau County
jail I was approached by c/o Corporal McGovern and
was threatened by him that he was going to harm me the
first chance he got. I was told that I would be seriously
injured when the time is right. I was assaulted by Corporal
McGovern and five other c/o's in August of 2008 in which
a lawsuit was filed.

I. Standard of Review
In deciding Rule 12(b)(6) motions to dismiss, the Court
applies a “plausibility standard,” which is guided by “[t]wo
working principles.” Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Harris v. Mills,
572 F.3d 66, 72 (2d Cir.2009). First, although the Court must
accept all of a complaint's allegations as true, this “tenet”
is “inapplicable to legal conclusions;” thus, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”Harris, 572 F.3d at 72
(alteration in original) (quoting Iqbal, 556 U.S. at 678)
(internal quotation marks omitted). Second, only complaints
that state a “plausible claim for relief” survive a motion to
dismiss. Id. (internal quotation marks and citation omitted).
Determining whether a complaint does so is “a contextspecific task that requires the reviewing court to draw

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1

Justice v. McGovern, Not Reported in F.Supp.2d (2012)
2012 WL 2155275

on its judicial experience and common sense.”Id. (internal
quotation marks and citation omitted).

would be made” (Pl. Reply 2). McGovern argues that this
clearly and unequivocally demonstrates that Plaintiff “has
not waited until the conclusion of the investigation, and thus

*2 Pro se plaintiffs enjoy a somewhat more liberal
pleading standard. See Erickson v. Pardus, 551 U.S. 89,
94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (“[A] pro
se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers.”) (internal quotation marks and citation omitted).
However, pro se plaintiffs must still comport with the
procedural and substantive rules of law. Colo. Capital v.
Owens, 227 F.R.D. 181, 186 (E.D.N.Y.2005).

the end of the grievance procedure” 3 to commence suit, so
his Complaint must be dismissed for failure to exhaust the
grievance procedures. (McGovern Mot. 6.) However, courts
in this Circuit have held that “a pro se plaintiff's pleading
references to various efforts that he had made to bring alleged
prison violations to the attention of the prison authorities
cannot be treated as tantamount to an admission that he had
not exhausted his administrative remedies.”White v. Schriro,
No. 11–CV–5285, 2012 WL 1414450, at *6 (S.D.N .Y.
Mar. 7, 2012) (internal quotation marks and citation omitted)
(collecting cases), adopted by 2012 WL 1450422 (Apr. 23,
2012). Thus, “[a] ccepting [McGovern's] argument-that it is
‘clear’ that [P]laintiff has not exhausted unless he pleads
that he has—would impose the very pleading burden that the
Supreme Court rejected in Jones.”Id. Accordingly, the Court
declines to dismiss the Complaint at this stage of the litigation
for lack of exhaustion.

II. McGovern's Motion to Dismiss
McGovern moves to dismiss on the grounds that: (1)
Plaintiff failed to exhaust his administrative remedies prior to
commencing suit and (2) Plaintiff otherwise failed to state a
claim for relief.

A. Failure to Exhaust Administrative Remedies
The Prison Litigation Reform Act (“PLRA”) provides, in
relevant part, that: “No action shall be brought with respect
to prison conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies
as are available are exhausted.”42 U.S.C. § 1997e(a). This
exhaustion requirement “applies to all inmate suits about
prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force
or some other wrong.”Porter v. Nussle, 534 U.S. 516, 532,
122 S.Ct. 983, 152 L.Ed.2d 12 (2002). However, failure
to exhaust is an affirmative defense, and the Supreme
Court has held that “inmates are not required to specially
plead or demonstrate exhaustion in their complaints.”Jones
v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d
798 (2007).“Dismissal under Rule 12(b)(6) for failure to
exhaust is thus appropriate only where nonexhaustion is
apparent from the face of the complaint.”Roland v. Smith,
––– F.Supp.2d ––––, 2012 WL 601071, at *2 (S.D.N.Y. Feb.
22, 2012) (citing McCoy v. Goord, 255 F.Supp.2d 233, 251
(S.D.N.Y.2003)).
Here, Plaintiff's Complaint states that he “present[ed] the
facts relating to [his] complaint in the prisoner grievance
procedure” in place at NCCC by “notif [ying] them of the
incident.”(Compl.¶ II.B–C.) He was ultimately seen by “I–A–
U” on October 4, 2011 (Compl.¶ II.C.2) and was told “that no
promises would be made that any full and active investigation

3

McGovern asserts that there is a three-step administrative
review process for inmate grievances: first, the inmate
must submit a complaint to the Grievance Clerk,
which is transferred to the inmate grievance resolution
committee (“IGRC”) for investigation and review;
second, after receiving a decision from the IGRC, the
inmate must appeal to the superintendent of the facility;
and finally, the inmate must appeal the superintendent's
decision to the Central Office Review Committee for a
final administrative determination. (McGovern Mot. 6
(citing Sanchez v. Fischer, No. 03–CV–4433, 2005 WL
1021178, at *4 (S.D.N.Y. May 2, 2005)).)

B. Failure to State a Claim under 42 U.S.C. § 1983
*3 McGovern also argues that Plaintiff's Complaint must be
dismissed for failure to state a claim under 42 U.S.C. § 1983.
Section 1983 provides in relevant part that:
Every person who, under color of any
statute, ordinance, regulation, custom,
or usage, of any State ... causes
to be subjected, any citizen of the
United States ... to the deprivation of
any rights, privileges, or immunities
secured by the Constitution and laws,
shall be liable to the party injured in an
action at law ....

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2

Justice v. McGovern, Not Reported in F.Supp.2d (2012)
2012 WL 2155275

Thus, for a plaintiff to state a claim under § 1983, the
complaint must allege that “(1) the challenged conduct was
attributable at least in part to a person who was acting under
color of state law and (2) the conduct deprived the plaintiff
of a right guaranteed under the Constitution of the United
States.”Snider v. Dylag, 188 F.3d 51, 53 (2d Cir.1999) (citing
Dwares v. City of N.Y., 985 F.2d 94, 98 (2d Cir.1993)). Here,
McGovern does not dispute he was acting under color of state
law. The issue, therefore, is whether his conduct deprived
Plaintiff of a constitutionally protected right.
The Court reads Plaintiff's Complaint broadly to assert two
claims under Section 1983: one for excessive force under the
Eighth Amendment and one for retaliation under the First
Amendment.

1. Excessive Force Claim
McGovern argues that Plaintiff's excessive force claim—i.e.,
his claim that McGovern's threats violated his right to be
free from cruel and unusual punishment under the Eighth
Amendment—must be dismissed because Plaintiff failed
to plead that McGovern's threats resulted in any injury.
(McGovern Mot. 4.) The Court agrees. Courts in the Second
Circuit have consistently held that “[m]ere threats, verbal
harassment or profanity, without any injury or damage, are
not actionable under Section 1983.”Mateo v. O'Connor, No.
10–CV–8426, 2012 WL 1075830, at *4 (S.D.N.Y. Mar. 29,
2012); see also Purcell v. Coughlin, 790 F.2d 263, 265 (2d
Cir.1986) (dismissing defendant's claims against a guard for
calling him names without alleging “any appreciable injury”);
Shabazz v. Pico, 994 F.Supp. 460, 474 (S.D.N.Y.1998)
(“[V]erbal harassment or profanity alone, unaccompanied by
any injury no matter how inappropriate, unprofessional, or
reprehensible it might seem, does not constitute the violation
of any federally protected right and therefore is not actionable
42 U.S.C. § 1983.”(internal quotation marks and citation
omitted)). Because Plaintiff's Complaint fails to allege that he
sustained any injury as a result of McGovern's alleged threats,
he has failed to state a claim for a violation of the Eighth
Amendment.

2. First Amendment Retaliation
The Court also reads Plaintiff's Complaint as asserting a
cause of action for retaliation in violation of the First
Amendment—i.e ., that McGovern's alleged threats were in
retaliation for Plaintiff's commencing suit against him in
2008. While “retaliation against a prisoner for pursuing a

grievance violates the right to petition government for the
redress of grievances guaranteed by the First and Fourteenth
Amendments and is actionable under § 1983,”Graham v.
Henderson, 89 F.3d 75, 80 (2d Cir.1996) (citing Franco
v. Kelly, 854 F.2d 584 (2d Cir.1988)), the Second Circuit
has cautioned that “courts must approach prisoner claims
of retaliation with skepticism and particular care.”Dawes v.
Walker, 239 F.3d 489, 492 (2d Cir.2001), overruled on other
grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122
S.Ct. 992, 152 L.Ed.2d 1 (2002). This is because such claims
can be “easily fabricated” and “pose a substantial risk of
unwarranted judicial intrusion into matters of general prison
administration.”Id. With this in mind, the Court will address
the sufficiency of Plaintiff's claim.
*4 To state a claim for retaliation in violation of the
First Amendment, a prisoner must assert non-conclusory
allegations establishing: “(1) that the speech or conduct at
issue was protected, (2) that the defendant took adverse action
against the plaintiff, and (3) that there was a causal connection
between the protected speech and the adverse action.”Dawes,
239 F.3d at 492;accord Gill v. Pidlypchak, 389 F.3d 379, 380
(2d Cir.2004). It is well settled that commencing a lawsuit is
protected activity, so the Court will focus its discussion on the
second and third elements.

a. Adverse Action
“In the prison context, ‘[o]nly retaliatory conduct that would
deter a similarly situated individual of ordinary firmness
from exercising his or her constitutional rights constitutes
an adverse action for a claim of retaliation.’ “ Mateo v.
Fischer, 682 F.Supp.2d 423, 433 (S.D.N.Y.2010) (alteration
in original) (quoting Dawes, 239 F.3d at 492);see also Davis
v. Goord, 320 F.3d 346, 353 (2d Cir.2003). If the retaliatory
act is not adverse, it “is simply de minimis and therefore
outside the ambit of constitutional protection.” Davis, 320
F.3d at 353 (quoting Dawes, 239 F.3d at 493). In determining
whether a retaliatory act is adverse, “the court's inquiry
must be ‘tailored to the different circumstances in which
retaliation claims arise,’ bearing in mind that ‘[p]risoners may
be required to tolerate more ... than average citizens, before a
[retaliatory] action taken against them is considered adverse.’
“ Id. (alternations in original) (quoting Thaddeus–X v. Blatter,
175 F.3d 378, 398 (6th Cir.1999)).
McGovern argues that Plaintiff's retaliation claim must be
dismissed because verbal threats do not give rise to a
constitutional violation. The Court disagrees. “[S]ome verbal
threats, even if not serious enough to implicate the Eighth

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3

Justice v. McGovern, Not Reported in F.Supp.2d (2012)
2012 WL 2155275

Amendment, can constitute an adverse action.”Mateo, 682
F.Supp.2d at 434. However, “not all do. The less direct
and specific a threat, the less likely it will deter an inmate
from exercising his First Amendment rights.”Id. at 425;see
also Dawes, 239 F.3d at 493. The Court need not decide
whether McGovern's threat was direct and specific enough
to constitute adverse action, because the Court finds that
Plaintiff has failed to plead causation.

b. Causation
“In order to satisfy the causation requirement, allegations
must be ‘sufficient to support the inference that the speech
played a substantial part in the adverse action.’ “ Davis,
320 F.3d at 354 (quoting Dawes, 239 F.3d at 492). Here,
Plaintiff's Complaint is completely void of any allegations
that McGovern's alleged threat was at all related to Plaintiff's
previous civil action. Accordingly, Plaintiff has failed to state
a claim for retaliation in violation of the First Amendment.

III. Leave to Replead
Although Plaintiff has not specifically requested leave to
replead, the Second Circuit has stated that “the court should
not dismiss without granting leave to amend at least once
when a liberal reading of the complaint gives any indication
that a valid claim might be stated.”Cuoco v. Mortisugu,
222 F.3d 99, 112 (2d Cir .2000) (internal quotation marks
and citation omitted); see alsoFED.R.CIV.P. 15(a)(2) (“The
End of Document

court should freely give leave [to amend] when justice so
requires.”). Accordingly, the Court grants Plaintiff leave to
amend to address the pleading defects articulated above.

CONCLUSION
*5 For the foregoing reasons, McGovern's motion to
dismiss Plaintiff's Complaint is GRANTED. However, in
an abundance of caution, the Court grants Plaintiff leave to
replead. If Plaintiff wishes to address the pleading defects
discussed above, he must file an Amended Complaint within
thirty (30) days of the date of his Memorandum and Order.
Failure to file an Amended Complaint in the time allotted will
result in dismissal of the Complaint with prejudice.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal from this Memorandum and Order would not be
taken in good faith; therefore in forma pauperis status is
denied for the purposes of an appeal. See Coppedge v. United
States, 369 U.S. 438, 444–45, 82 S.Ct. 917, 8 L.Ed.2d 21
(1962).
SO ORDERED.

All Citations
Not Reported in F.Supp.2d, 2012 WL 2155275
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4

Littlejohn v. City of New York, --- F.3d ---- (2015)
2015 WL 4604250

2015 WL 4604250
Only the Westlaw citation is currently available.
United States Court of Appeals,
Second Circuit.

West Headnotes (35)

[1]

Dawn F. LITTLEJOHN, Plaintiff–Appellant,
v.
CITY OF NEW YORK, John B. Mattingly,
former Commissioner, Amy Baker,
Brandon Stradford, Defendants–Appellees.

Civil Rights
Practices Prohibited or Required in General;
Elements
Civil Rights
Effect of Prima Facie Case; Shifting
Burden
If a plaintiff alleging employment discrimination
can show (1) that she is a member of a
protected class, (2) that she was qualified for
employment in the position, (3) that she suffered
an adverse employment action, and that she
has (4) some minimal evidence suggesting
an inference that her employer acted with
discriminatory motivation, such a showing will
raise a temporary presumption of discriminatory
motivation under McDonnell Douglas, shifting
the burden of production to the employer and
requiring the employer to come forward with its
justification for the adverse employment action
against the plaintiff.

No. 14–1395–cv. | Argued: Nov.
5, 2014. | Decided: Aug. 3, 2015.
Synopsis
Background: Former government employee, who was
African American, brought action against city and her former
supervisors, asserting claims of hostile work environment,
disparate treatment, and retaliation under Title VII, § 1981,
and § 1983, and a claim of sexual harassment under Title VII.
The United States District Court for the Southern District of
New York, Robert W. Sweet, J., entered an order dismissing
claims, and employee appealed.

Cases that cite this headnote
Holdings: The Court of Appeals, Droney, Circuit Judge, held
that:

[2]

[1] employee's allegations were sufficient to give rise to an
inference of discrimination on her disparate treatment claims;

Civil Rights
Motive or Intent; Pretext
Civil Rights
Effect of Prima Facie Case; Shifting
Burden

[2] employee's disparate treatment claims under § 1981
and § 1983 could survive only against supervisor who was
personally involved in her demotion;

Once an employer presents evidence of its
justification for a challenged adverse action,
the presumption of discriminatory motivation
drops out of the picture and the McDonnell
Douglas framework is no longer relevant to the
plaintiff's employment discrimination claims;
instead, the plaintiff must demonstrate that the
employer's proffered reason was not the true
reason, or, in any event, not the sole reason for
adverse action, which merges with the plaintiff's
ultimate burden of showing that the employer
intentionally discriminated against her.

[3] employee sufficiently alleged that she engaged in
protected activity;
[4] employee failed to allege a hostile work environment; and
[5] employee's sexual harassment claim was not reasonably
related to claims in her Equal Employment Opportunity
Commission (EEOC) complaint.

Cases that cite this headnote

Affirmed in part, vacated in part, and remanded.
[3]

Civil Rights

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2015 WL 4604250

Prima Facie Case
While a satisfactory explanation by an employer
destroys the legally mandatory inference of
discrimination arising from the plaintiff's
initial evidence, the initial evidence used to
establish the prima facie case of employment
discrimination and the inferences properly drawn
therefrom may be considered by the trier of
fact on the issue of whether the defendant's
explanation is pretextual.

alteration of job responsibilities; it is a materially
significant disadvantage with respect to the terms
of the plaintiff's employment. Civil Rights Act of
1964, § 701, 42 U.S.C.A. § 2000e.
Cases that cite this headnote
[7]

An inference of discrimination can arise,
as required to support an employment
discrimination claim, from circumstances
including, but not limited to, the employer's
criticism of the plaintiff's performance in
ethnically degrading terms, the employer's
invidious comments about others in the plaintiff's
protected group, the more favorable treatment
of employees not in the protected group, or
the sequence of events leading to the plaintiff's
discharge.

Cases that cite this headnote
[4]

Civil Rights
Pleading
Civil Rights
Effect of Prima Facie Case; Shifting
Burden
The requirement that a complaint contain
sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face
applies to Title VII complaints of employment
discrimination, but does not affect the benefit
to plaintiffs of the McDonnell Douglas burdenshifting framework. Fed.Rules Civ.Proc.Rule
8(a)(2), 28 U.S.C.A.

Cases that cite this headnote
[8]

Cases that cite this headnote
[5]

Cases that cite this headnote
[9]

Cases that cite this headnote

Civil Rights
Adverse Actions in General
An adverse employment action under Title VII is
more disruptive than a mere inconvenience or an

Civil Rights
Presumptions, Inferences, and Burden of
Proof
An inference of discrimination arises, as
required to support a claim of employment
discrimination, when an employer replaces
a terminated or demoted employee with an
individual outside the employee's protected
class.

Cases that cite this headnote
[6]

Civil Rights
Presumptions, Inferences, and Burden of
Proof
Adverse actions taken against employees who
are not similarly situated cannot establish
an inference of discrimination to support an
employment discrimination claim.

Civil Rights
Disparate Treatment
African American employee's exclusion from
decision-making meetings concerning a merger
involving city agency for which she worked was
not an adverse employment action, as required
to establish a prima facie case of disparate
treatment based on race in violation of Title VII,
§ 1981, and § 1983, where her exclusion did not
significantly diminish her job responsibilities.
Civil Rights Act of 1964, § 701, 42 U.S.C.A. §
2000e; 42 U.S.C.A. §§ 1981, 1983.

Civil Rights
Presumptions, Inferences, and Burden of
Proof

[10]

Civil Rights
Disparate Treatment

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Allegation that African American employee of
city agency was replaced by a less qualified
white employee after she was demoted from
her director-level position was sufficient to
plausibly support conclusion that employee's
demotion occurred under circumstances giving
rise to an inference of discrimination, as required
to establish a prima facie case of disparate
treatment based on race in violation of Title VII,
§ 1981, and § 1983. Civil Rights Act of 1964, §
701, 42 U.S.C.A. § 2000e; 42 U.S.C.A. §§ 1981,
1983.

in supervising subordinates who committed the
wrongful acts, or (5) the defendant exhibited
deliberate indifference by failing to act on
information indicating that unconstitutional acts
were occurring. 42 U.S.C.A. §§ 1981, 1983.
Cases that cite this headnote
[14]

A plaintiff alleging violations of § 1981 and §
1983 must establish that a supervisor's actions
were the proximate cause of the plaintiff's
constitutional deprivation. 42 U.S.C.A. §§ 1981,
1983.

Cases that cite this headnote
[11]

Civil Rights
Individuals as “Employers”
Title VII does not create liability in individual
supervisors and co-workers who are not the
plaintiff's actual employer. Civil Rights Act of
1964, § 701, 42 U.S.C.A. § 2000e.

Cases that cite this headnote
[15]

Cases that cite this headnote
[12]

Civil Rights
Persons Liable in General

[13]

Cases that cite this headnote
[16]

Civil Rights
Vicarious Liability and Respondeat
Superior in General; Supervisory Liability in
General
A defendant's alleged personal involvement in
a constitutional deprivation under § 1981 and
§ 1983 can be established by showing that:
(1) the defendant participated directly in the
alleged violation, (2) the defendant, after being
informed of the violation through a report or
appeal, failed to remedy the wrong, (3) the
defendant created a policy or custom under
which unconstitutional practices occurred, or
allowed the continuance of such a policy or
custom, (4) the defendant was grossly negligent

Civil Rights
Vicarious Liability and Respondeat
Superior in General; Supervisory Liability in
General
In the §§ 1981 and 1983 context, a plaintiff must
establish that a supervisor's behavior constituted
intentional discrimination on the basis of a
protected characteristic. 42 U.S.C.A. § 1983.

An individual may be held liable under §
1981 and § 1983 only if that individual was
personally involved in the alleged constitutional
deprivation. 42 U.S.C.A. §§ 1981, 1983.
Cases that cite this headnote

Civil Rights
Vicarious Liability and Respondeat
Superior in General; Supervisory Liability in
General

Civil Rights
Employment Practices
African American employee's disparate
treatment claims under § 1981 and § 1983 arising
from her demotion from a director-level position
at city agency and replacement by an allegedly
less qualified white employee could survive only
against supervisor who was personally involved
in her demotion. 42 U.S.C.A. §§ 1981, 1983.
Cases that cite this headnote

[17]

Civil Rights
Employment Practices
African American employee of city agency could
not proceed on her disparate treatment claims
against city under § 1981 and § 1983 arising from

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Littlejohn v. City of New York, --- F.3d ---- (2015)
2015 WL 4604250

her demotion from a director-level position and
replacement by an allegedly less qualified white
employee, absent allegations of a persistent or
widespread municipal policy or custom that
enabled her demotion. 42 U.S.C.A. §§ 1981,
1983.

activity, (3) an adverse employment action, and
(4) a causal connection between the protected
activity and the adverse employment action.
Civil Rights Act of 1964, § 701, 42 U.S.C.A. §
2000e; 42 U.S.C.A. § 1981.
Cases that cite this headnote

Cases that cite this headnote
[22]
[18]

Civil Rights
Governmental Ordinance, Policy, Practice,
or Custom

To the extent an employee is required as
part of her job duties to report or investigate
other employees' complaints of discrimination,
such reporting or investigating by itself is
not a protected activity under Title VII's
opposition clause, because merely to convey
others' complaints of discrimination is not
to oppose practices made unlawful by Title
VII; however, if an employee, even one
whose job responsibilities involve investigating
complaints of discrimination, actively supports
other employees in asserting their Title VII
rights or personally complains or is critical
about the discriminatory employment practices
of her employer, that employee has engaged in
a protected activity under Title VII's opposition
clause and may proceed on a retaliation claim.
Civil Rights Act of 1964, § 704(a), 42 U.S.C.A.
§ 2000e–3(a).

When a defendant sued for discrimination under
§ 1981 or § 1983 is a municipality, the plaintiff
is required to show that the challenged acts were
performed pursuant to a municipal policy or
custom. 42 U.S.C.A. §§ 1981, 1983.
Cases that cite this headnote
[19]

Civil Rights
Employment Practices
A single unlawful discharge, if ordered by a
person whose edicts or acts may fairly be said to
represent official policy, can, by itself, support
claims of employment discrimination under §
1981 and § 1983 against a municipality. 42
U.S.C.A. §§ 1981, 1983.
Cases that cite this headnote

[20]

Constitutional Law
Labor, Employment, and Public Officials
The Fourteenth Amendment's Equal Protection
Clause does not protect against employment
retaliation due to complaints of racial
discrimination. U.S.C.A. Const.Amend. 14.
Cases that cite this headnote

[21]

Civil Rights
Practices Prohibited or Required in General;
Elements
To establish a presumption of retaliation at the
initial stage of litigation under Title VII and
§ 1981, a plaintiff must present evidence that
shows: (1) participation in a protected activity,
(2) that the defendant knew of the protected

Civil Rights
Activities Protected

Cases that cite this headnote
[23]

Civil Rights
Activities Protected
Municipal Corporations
Grounds
Allegation that African American employee, in
her capacity as director of a city agency's equal
employment opportunity (EEO) department,
repeatedly objected and complained to her
supervisors about agency's selection process and
failure to abide by its anti-discrimination policies
was sufficient to allege a protected activity under
Title VII's opposition clause, as required to
establish a prima facie case of retaliation under
Title VII and § 1981. Civil Rights Act of 1964, §
704(a), 42 U.S.C.A. § 2000e–3(a); 42 U.S.C.A.
§ 1981.

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Cases that cite this headnote
[24]

Civil Rights
Causal Connection; Temporal Proximity

Cases that cite this headnote
[27]

Municipal Corporations
Grounds

The standard for establishing a hostile work
environment under Title VII, § 1981, or § 1983
has both objective and subjective components:
the conduct complained of must be severe or
pervasive enough that a reasonable person would
find it hostile or abusive, and the victim must
subjectively perceive the work environment to
be abusive. Civil Rights Act of 1964, § 703(a)
(1), 42 U.S.C.A. § 2000e–2(a)(1); 42 U.S.C.A.
§§ 1981, 1983.

Allegation that African American employee of
city agency repeatedly objected and complained
to her supervisors about agency's failure to abide
by its anti-discrimination policies until day she
was demoted from her director-level position
with agency was sufficient to allege a causal
connection between a protected activity and
an adverse employment action, as required to
establish a prima facie case of retaliation under
Title VII and § 1981. Civil Rights Act of 1964, §
704(a), 42 U.S.C.A. § 2000e–3(a); 42 U.S.C.A.
§ 1981.

Cases that cite this headnote
[28]

Cases that cite this headnote
[25]

Constitutional Law
Public Employees and Officials

Cases that cite this headnote
[26]

Civil Rights
Hostile Environment; Severity,
Pervasiveness, and Frequency
To establish a hostile work environment under
Title VII, § 1981, or § 1983, a plaintiff must
show that the workplace is permeated with
discriminatory intimidation, ridicule, and insult
that is sufficiently severe or pervasive to alter the
conditions of the victim's employment and create
an abusive working environment. Civil Rights
Act of 1964, § 703(a)(1), 42 U.S.C.A. § 2000e–
2(a)(1); 42 U.S.C.A. §§ 1981, 1983.

Civil Rights
Hostile Environment; Severity,
Pervasiveness, and Frequency
The incidents complained of must be more than
episodic to establish a hostile work environment
under Title VII, § 1981, or § 1983; rather, they
must be sufficiently continuous and concerted in
order to be deemed pervasive. Civil Rights Act
of 1964, § 703(a)(1), 42 U.S.C.A. § 2000e–2(a)
(1); 42 U.S.C.A. §§ 1981, 1983.

Constitutional Law
Employment in General
Section 1983, through its application of the
Equal Protection Clause of the Fourteenth
Amendment, protects public employees from
various forms of discrimination, including
hostile work environment and disparate
treatment on the basis of race. U.S.C.A.
Const.Amend. 14; 42 U.S.C.A. § 1983.

Civil Rights
Hostile Environment; Severity,
Pervasiveness, and Frequency

Cases that cite this headnote
[29]

Civil Rights
Hostile Environment; Severity,
Pervasiveness, and Frequency
In determining whether a plaintiff suffered a
hostile work environment under Title VII, §
1981, or § 1983, a court must consider the totality
of the circumstances, including the frequency of
the discriminatory conduct, its severity, whether
it is physically threatening or humiliating, or
a mere offensive utterance, and whether it
unreasonably interferes with an employee's work
performance. Civil Rights Act of 1964, § 703(a)
(1), 42 U.S.C.A. § 2000e–2(a)(1); 42 U.S.C.A.
§§ 1981, 1983.
Cases that cite this headnote

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[30]

Civil Rights
Hostile Environment; Severity,
Pervasiveness, and Frequency
Allegations that African American employee's
supervisor at city agency made negative
statements about employee to another
supervisor, distanced herself from employee
when she was nearby, declined to meet
with employee, and wrongfully reprimanded
employee were insufficient to allege racial
discrimination that was so severe or pervasive
that it created an abusive work environment
and altered conditions of her employment, as
required to establish a hostile work environment
under Title VII, § 1981, and § 1983. Civil Rights
Act of 1964, § 703(a)(1), 42 U.S.C.A. § 2000e–
2(a)(1); 42 U.S.C.A. §§ 1981, 1983.

[33]

In determining whether a claim not included in
an Equal Employment Opportunity Commission
(EEOC) complaint is reasonably related to a
claim filed with the EEOC and may therefore be
brought in a Title VII suit, a court focuses on
the factual allegations made in the EEOC charge
itself, describing the discriminatory conduct
about which the plaintiff is grieving. Civil Rights
Act of 1964, § 706, 42 U.S.C.A. § 2000e–5.
Cases that cite this headnote
[34]

Cases that cite this headnote
[31]

Civil Rights
Scope of Administrative Proceedings; Like
or Related Claims

Civil Rights
Scope of Administrative Proceedings; Like
or Related Claims
Former city agency employee's claim that her
supervisor sexually harassed her in violation of
Title VII was not reasonably related to racial
discrimination claims employee filed with Equal
Employment Opportunity Commission (EEOC),
and, thus, her sexual harassment claim, which
was never included in an EEOC complaint,
was barred for failure to exhaust administrative
remedies; although employee sent letter to
EEOC district office referencing additional
charge of sexual harassment, that letter was
unsworn and did more than simply clarify and
amplify allegations made in original EEOC
complaint. Civil Rights Act of 1964, § 706, 42
U.S.C.A. § 2000e–5.

Civil Rights
Deferral to State Agencies; Time
Civil Rights
Exhaustion of Administrative Remedies
Before Resort to Courts
Before bringing a Title VII suit in federal
court, an individual must first present the
claims forming the basis of such a suit in a
complaint to the Equal Employment Opportunity
Commission (EEOC) or the equivalent state
agency. Civil Rights Act of 1964, § 706, 42
U.S.C.A. § 2000e–5.
Cases that cite this headnote

Cases that cite this headnote
[32]

Civil Rights
Scope of Administrative Proceedings; Like
or Related Claims
Claims not raised in an Equal Employment
Opportunity Commission (EEOC) complaint
may still be part of a Title VII complaint later
filed in federal court if they are reasonably
related to the claim filed with the EEOC. Civil
Rights Act of 1964, § 706, 42 U.S.C.A. § 2000e–
5.

[35]

Civil Rights
Scope of Administrative Proceedings; Like
or Related Claims
Unsworn letters sent to the Equal Employment
Opportunity Commission (EEOC) describing
additional claims of discrimination unrelated
to the claims described in the EEOC charge
cannot enlarge the scope of the original charge to
include new claims under Title VII. Civil Rights
Act of 1964, § 706, 42 U.S.C.A. § 2000e–5.

Cases that cite this headnote

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Cases that cite this headnote

Appeal from the United States District Court for the Southern
District of New York. No. 13–cv–1116—Robert W. Sweet,
Judge.
Appeal from a judgment of the United States District Court
for the Southern District of New York (Sweet, J.) dismissing
Plaintiff's hostile work environment, disparate treatment, and
retaliation claims under Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”), and 42 U.S.C.
§§ 1981 and 1983, and Plaintiff's sexual harassment claim
under Title VII. We VACATE the district court's judgment
with respect to Plaintiff's disparate treatment and retaliation
claims against Defendants City of New York and Amy Baker,
AFFIRM the dismissal of the other claims, and REMAND.
Attorneys and Law Firms
Gregory G. Smith, New York, NY, for Plaintiff–Appellant.
Susan Paulson (Francis F. Caputo, on the brief), for Zachary
W. Carter, Corporation Counsel of the City of New York,
New York, NY, for Defendants–Appellees.
Before LEVAL, LYNCH, and DRONEY, Circuit Judges.
Opinion
DRONEY, Circuit Judge:
*1 Plaintiff Dawn F. Littlejohn appeals from a judgment
of the United States District Court for the Southern District
of New York (Sweet, J.) entered on February 28, 2014.
Littlejohn alleged that, while employed by the New York
City Administration for Children's Services (“ACS”), she
was subjected to a hostile work environment and disparate
treatment based on her race, and retaliated against because
of complaints about such discrimination, in violation of Title
VII of the Civil Rights Act of 1964 (“Title VII”), as amended,
42 U.S.C. §§ 2000e et seq., and 42 U.S.C. §§ 1981 and
1983. Littlejohn also alleged that she was sexually harassed
in violation of Title VII. Defendants, the City of New York
(“the City”) and three individuals who supervised Littlejohn
at ACS, moved to dismiss Littlejohn's amended complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. The district court granted Defendants' motion to
dismiss in its entirety, and Littlejohn appealed.

For the reasons set forth below, we VACATE the district
court's judgment granting Defendants' motion to dismiss with
respect to (1) Littlejohn's disparate treatment and retaliation
claims against the City under Title VII, (2) Littlejohn's
disparate treatment claim against Defendant Amy Baker
under §§ 1981 and 1983, and (3) Littlejohn's retaliation claim
against Baker under § 1981; AFFIRM the dismissal of the
other claims; and REMAND for proceedings consistent with
this opinion.

BACKGROUND
I. Factual Background 1
Littlejohn is an African–American woman with a
master's degree in Industrial/Organizational Psychology from
Columbia University. She began working at ACS on
April 27, 2009, as the Director of its Equal Employment
Opportunity (“EEO”) Office. As Director, Littlejohn
conducted investigations of claims of discrimination, trained
staff, monitored hiring, counseled agency employees,
organized diversity activities, and advised staff on EEO
policy, duties which she alleges she performed satisfactorily.
From April to December 2009, Littlejohn's supervisor
was ACS Deputy Commissioner Anne Williams–Isom, an
African–American woman. Before Williams–Isom left ACS
in December 2009, she gave Littlejohn an above-average
performance review for her work over the previous eight
months. Littlejohn does not allege that any discrimination or
harassment occurred during the period in which she reported
to Williams–Isom.
After Williams–Isom left ACS in late December 2009,
Littlejohn began reporting to Defendant Amy Baker, a white
woman and the Chief of Staff to ACS Commissioner and
Defendant John B. Mattingly, a white man. Littlejohn's
relationship with Baker quickly deteriorated. According
to Littlejohn's complaint, Baker asked another employee
“for negative information about [Littlejohn]”; “physically
distanc[ed] herself from [Littlejohn] at meetings”; “increased
[Littlejohn's] reporting schedule from an as-needed
basis ... to twice-weekly”; “wrongful[ly] and unnecessar[il]y
reprimand[ed]” Littlejohn; “required [Littlejohn] to re-create
reasonable accommodation and EEO logs even though these
logs were already in place”; became “noticeably impatient,
shook her head, blew air out of her mouth when [Littlejohn]
talked in the presence of other managers”; “held her head
in disbelief, got red in the face, used harsh tones, removed

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[Littlejohn's] name from the regularly scheduled management
meeting lists”; “refused to meet with [Littlejohn] face-toface, diminished [Littlejohn's] duties and responsibilities as
EEO Director”; “changed meetings that were supposed to be
scheduled as in person bi-monthly meetings to twice a week
over the phone discussions with [Littlejohn]”; and “replaced
[Littlejohn] at management meetings with [her] white male
subordinate.”Compl. ¶¶ 34, 53, 71, 74–75. Littlejohn also
alleges that Baker sarcastically told her “you feel like you are
being left out,” and that Littlejohn did not “understand the
culture” at ACS. Id. ¶¶ 36, 49.
*2 Shortly after Littlejohn began reporting to Baker, the
City announced in January 2010 that ACS would merge
with the City's Department of Juvenile Justice (“DJJ”). As a
result of the merger, numerous employees from DJJ would be
laid off, demoted, reassigned, or terminated. Littlejohn asked
Baker to be included in the process of deciding which DJJ
employees would be transferred or terminated “to ensure that
procedures were in accordance with established ... guidelines
and policies,” but Baker and other white managers allegedly
“impeded, stymied, and suffocated” Littlejohn's effort to
become involved in those decision-making meetings. Id.
¶¶ 44–45. Only after an Assistant Commissioner for the
Department of Citywide Administrative Services demanded
that Littlejohn be included in the meetings was she allowed
to attend.
According to Littlejohn, Baker and Mattingly showed
preferential treatment to white DJJ employees during the
ACS/DJJ merger, while at the same time terminating,
demoting, or unfavorably reassigning African–American
and Latino/a DJJ employees. Littlejohn alleges that she
complained to Baker and Mattingly about the “selection
process and failure to abide by proper anti-discrimination
policies and procedures.”Id. ¶ 64. Specifically, Littlejohn
believed that Defendants were improperly and purposefully
failing to conduct an “adverse impact review and analysis,”
which was mandated by the City's Department for Citywide
Administrative Services layoff manual. Id. ¶ 61. Around
the same time, Littlejohn also complained to Baker about
the lack of African–American women in management
positions, lower management levels for African–American
employees compared to white employees, and pay disparities
between African–American men and their white counterparts.
Littlejohn's complaints, however, were “to no avail.” Id. ¶ 64.
In March 14, 2011, Littlejohn was involuntarily transferred
from the EEO Office to the Office of Personnel Services

(“OPS”) and was allegedly demoted to the civil service nonmanagerial title of Administrative Staff Analyst, incurring
a pay cut of $2,000. Littlejohn was replaced as Director
of the EEO Office by Fredda Monn, a white female, who
allegedly had no prior EEO experience, received more pay
than Littlejohn did as EEO Director, and was provided with
a “deputy EEO officer” to help with her work. Id. ¶ 78.
Littlejohn claimed that the transfer and demotion were in
retaliation for her complaints to Baker and Mattingly about
“racial discrimination and violations of law” during the ACS/
DJJ merger, and for her complaints about “her lack of
involvement from an EEO perspective in the decision making
process of DJJ and ACS Job actions.”Id. ¶¶ 52, 68.
At OPS, Littlejohn began reporting to Brandon Stradford,
the Director of Employee Relations. Stradford is an African–
American man. The complaint in this action alleges that
from March 2011 to September 2011, Stradford sexually
harassed her through “ongoing repeated requests for dates,
[requests for] sex, touching, showing of sexually explicit
photographs of himself on vacation and physically exposing”
himself. Id. ¶ 85. Littlejohn also claimed that Stradford
“repeatedly threaten[ed] to further demote” her. Id. ¶ 87.
Littlejohn alleges that she complained in April 2011 about
Stradford's harassment to an Assistant Commissioner, who
declined to act on her complaints. In April 2012, Littlejohn
mentioned the harassment to Monn, now the Director of the
EEO Office, and to an investigator at the Equal Employment
Opportunity Commission (“EEOC”), with “no results.” Id. ¶
93. According to Littlejohn, Monn did not provide her with an
administrative form on which to complain about Stradford's
sexual harassment.
*3 On October 21, 2011, Littlejohn filed an Intake
Questionnaire 2 with the EEOC, in which she alleged
discrimination based on race and color as a result of
Baker's and Mattingly's actions while she was EEO
Director. Littlejohn's Intake Questionnaire did not claim
discrimination based on sex or sexual harassment, nor did it
mention Stradford. Instead, Littlejohn explained in the Intake
Questionnaire that she believed Baker's and Mattingly's
actions were discriminatory on the basis of race and color
because they “fail[ed] to reassign” her to a position for
which she was “suitably and well qualified”; “incessant[ly]
harass[ed] and degrad[ed]” her; retaliated against her for
“complaining about common ACS practices”; demoted her
from “admin Staff Analyst M1 to Admin Staff Analyst (NM)
and replaced [her with] a white female”; “deliberately froze[ ]
out and excluded [her] from all deliberations, meetings and

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responsibilities”; “relegate[d][her] to performing the most
menial and clerical tasks”; and “strip[ped][her] of [her]
pay level.”Littlejohn Aff., Ex. 1. 3 On February 2, 2012,
Littlejohn followed up her completed Intake Questionnaire
by filing a formal Charge of Discrimination with the EEOC,
claiming discrimination based on race and color, as well as
retaliation for complaints about such discrimination. Despite
the option on the EEOC charge form to claim discrimination
based on sex, Littlejohn again did not make such a claim or
mention Stradford or sexual harassment.
From April 27 to June 5, 2012, Littlejohn went on medical
leave under the Family Medical Leave Act as a result
of mental and physical health issues allegedly caused
by her treatment at ACS. Littlejohn claimed that, while
on leave, she was repeatedly asked for documentation
of her medical condition, and that Stradford caused her
paychecks to be improperly withheld. When Littlejohn
returned from leave in June 2012, she was reassigned
to a different manager, Claudette Wynter, the Director
of Personnel Services and an African–American woman.
However, according to her complaint, Stradford continued
to sexually harass her. As a result, Littlejohn wrote a
letter to Monn on August 22, 2012, in which Littlejohn
thanked Monn for changing her supervisor but asked to be
moved farther away from Stradford. Littlejohn sent a similar
email to Wynter complaining about her close proximity
to Stradford. Monn eventually followed up with Littlejohn
in May 2013 regarding her original complaint of sexual
harassment against Stradford; Monn stated that she had
investigated the complaint and was unable to find evidence to
substantiate a violation of department policy.
On September 24, 2012, Littlejohn was approved to return to
medical leave as a result of a “mini stroke.” Compl. ¶¶ 92,
97. It was on this date that Littlejohn initially claimed she
was constructively discharged. 4 Approximately one month
later, on October 23, 2012, Littlejohn wrote a letter to
Kevin Berry, the Director of the EEOC New York District
Office, regarding the EEOC charge she previously filed on
February 2 that claimed discrimination based on race and
color. 5 In this letter, Littlejohn stated that “I want to be
sure that you are aware [of] my additional charge of hostile
work environment-sexual harassment at the hands of my
manager [Brandon Stradford] within the unit in which I was
placed after being unfairly demoted.”Littlejohn Aff., Ex. 11.
Littlejohn explained that she suffered emotional distress due
to Stradford's unwanted physical advances and his constant
staring at her body. Littlejohn also asked Berry to “[p]lease

let me know what additional information you may need.”Id.
There is no indication in the complaint filed in this action that
the EEOC responded to Littlejohn's October 23 letter.
*4 On November 19, 2012, after 180 days had elapsed since
Littlejohn filed her EEOC charge alleging discrimination
based on race and color, the EEOC sent Littlejohn a Notice
of Right to Sue Letter. Subsequently, on November 29,
2012, she went to the ACS EEO Office and filed an
internal “Complaint of Discrimination Form” alleging sexual
harassment by Stradford, which she gave to Monn.

II. Procedural History
Littlejohn commenced this lawsuit pro se on February 15,
2013, and filed an amended complaint on September 23,
2013, after she retained counsel. The amended complaint
alleged causes of action for hostile work environment and
disparate treatment based on Littlejohn's race, and retaliation
because of complaints about such discrimination, in violation
of Title VII and 42 U.S.C. §§ 1981 and 1983. The complaint
also alleged sexual harassment in violation of Title VII. The
Defendants are the City of New York, Mattingly, Baker, and
Stradford.
On December 6, 2013, Defendants moved to dismiss all
of Littlejohn's claims pursuant to Federal Rule of Civil
Procedure 12(b)(6). The district court granted Defendants'
motion in its entirety on February 28, 2014, concluding
that Littlejohn failed to exhaust her administrative remedies
as to her sexual harassment claim and failed to adequately
plead her hostile work environment, disparate treatment, and
retaliation claims. As to her §§ 1981 and 1983 claims, the
district court held in the alternative that Littlejohn failed
to allege personal responsibility with respect to individual
Defendants Mattingly and Stradford, and did not state a claim
against the City pursuant to Monell v. Department of Social
Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

DISCUSSION
I. Standard of Review
This Court reviews de novo a district court's grant of a motion
to dismiss under Rule 12(b)(6).Simmons v. Roundup Funding,
LLC, 622 F.3d 93, 95 (2d Cir.2010). On a motion to dismiss,
all factual allegations in the complaint are accepted as true
and all inferences are drawn in the plaintiff's favor.Ofori–

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Tenkorang v. Am. Int'l Grp., Inc., 460 F.3d 296, 300 (2d
Cir.2006).
Determining the propriety of the dismissal of an employment
discrimination complaint under Rule 12(b)(6) requires
assessment of the interplay among several Supreme Court
precedents. McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and three
subsequent Supreme Court rulings clarifying it, established
the nature of a prima facie case of discrimination under
Title VII. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 122
S.Ct. 992, 152 L.Ed.2d 1 (2002), specifically addressed the
requirements for pleading such a case. And Ashcroft v. Iqbal,
556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009),
later asserted general pleading requirements (not specifically
addressed to discrimination cases), in arguable tension with
the holding of Swierkiewicz.We discuss each of these.

such a showing will raise a temporary “presumption” of
discriminatory motivation, shifting the burden of production
to the employer and requiring the employer to come forward
with its justification for the adverse employment action
against the plaintiff. Burdine, 450 U.S. at 253–54, 101 S.Ct.
1089; St. Mary's Honor Ctr., 509 U.S. at 506–07, 113 S.Ct.
2742. However, once the employer presents evidence of its
justification for the adverse action, joining issue on plaintiff's
claim of discriminatory motivation, the presumption “drops
out of the picture” and the McDonnell Douglas framework “is
no longer relevant.” St. Mary's Honor Ctr., 509 U.S. at 510–
11, 113 S.Ct. 2742. At this point, in the second phase of the
case, the plaintiff must demonstrate that the proffered reason
was not the true reason (or in any event not the sole reason) for
the employment decision, which merges with the plaintiff's
ultimate burden of showing that the defendant intentionally

discriminated against her. 6 Burdine, 450 U.S. at 256, 101
S.Ct. 1089; St. Mary's Honor Ctr., 509 U.S. at 519, 113 S.Ct.
[1]
[2]
[3] McDonnell Douglas, together with Texas 2742.
Department of Community Affairs v. Burdine, 450 U.S.
248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), St. Mary's
*5 For the initial phase, in which the plaintiff benefited from
Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125
the presumption, the Supreme Court's precedents left unclear
L.Ed.2d 407 (1993), and Reeves v. Sanderson Plumbing
how much evidence a plaintiff needed to shift the burden
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d
of production to the employer. It suggested in McDonnell
105 (2000), established that the requirements of a prima
Douglas that it would be sufficient for a disappointed job
facie case for a plaintiff alleging employment discrimination
seeker who was a member of a protected class to show
change as the case progresses. Ultimately, the plaintiff will
that she was qualified for the position, that the position
be required to prove that the employer-defendant acted with
remained open, and that the employer continued to seek
discriminatory motivation. However, in the first phase of the
applicants for the position, without need for any further
case, the prima facie requirements are relaxed. Reasoning
evidence of discriminatory intent. 411 U.S. at 802, 93 S.Ct.
that fairness required that the plaintiff be protected from
1817. In Burdine, the Court held that it was sufficient for the
early-stage dismissal for lack of evidence demonstrating the
disappointed applicant to show that the job went to one who
employer's discriminatory motivation before the employer
was not a member of her protected class. 450 U.S. at 253 n. 6,
set forth its reasons for the adverse action it took against
101 S.Ct. 1089. The Court characterized this initial burden as
the plaintiff, the Supreme Court ruled that, in the initial
“not onerous,” id. at 253, 101 S.Ct. 1089, and as “minimal,”
phase of the case, the plaintiff can establish a prima facie
St. Mary's Honor Ctr., 509 U.S. at 506.
case without evidence sufficient to show discriminatory
motivation. See McDonnell Douglas, 411 U.S. at 802, 93
The next pertinent Supreme Court precedent is
S.Ct. 1817; Burdine, 450 U.S. at 253–54, 101 S.Ct. 1089
Swierkiewicz.In Swierkiewicz, the plaintiff was a Hungarian
(“The prima facie case ... eliminates the most common
national, 53 years of age, who had been dismissed by his
nondiscriminatory reasons for the plaintiff's rejection.... [W]e
employer, a French company. 534 U.S. at 508, 122 S.Ct.
presume these acts, if otherwise unexplained, are more
992. He brought suit alleging national origin discrimination
likely than not based on the consideration of impermissible
under Title VII, and age discrimination. His complaint
factors.”(internal quotation marks omitted)). If the plaintiff
included little in the way of factual allegations supporting
can show (1) that she is a member of a protected class; (2)
an inference of national origin discrimination, other than his
that she was qualified for employment in the position; (3) that
Hungarian nationality in a French company, and very little to
she suffered an adverse employment action; and, in addition,
support his claim of age discrimination. Id. The district court
has (4) some minimal evidence suggesting an inference
granted the defendant's motion to dismiss the complaint for
that the employer acted with discriminatory motivation,
failure to make out a prima facie case, apparently assuming

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that the requirements of the prima facie case applied to
pleading as well as proof, and that the plaintiff's allegations
were insufficient to meet even the reduced prima facie
standards at the initial phase of the case. See Swierkiewicz
v. Sorema, N.A., No. 99 Civ. 12272(LAP), 2000 U.S. Dist.
LEXIS 21547 (S.D.N.Y. July 26, 2000). Referring to a
memorandum that was incorporated into the complaint and
upon which the plaintiff relied, the district court explained
that “[t]here is nothing in the memorandum from which age
or national origin discrimination can be inferred.”Id. at *4.
Addressing the allegations of both age and national origin
discrimination, the court characterized them as “conclusory”
and “insufficient as a matter of law to raise an inference of
discrimination.”Id. at *5. Our Court affirmed.Swierkiewicz v.
Sorema, N.A., 5 Fed.Appx. 63 (2d Cir.2001).
The Supreme Court reversed. Swierkiewicz, 534 U.S. 506,
122 S.Ct. 992. The Supreme Court clarified that the standard
espoused by the McDonnell Douglas line of cases for
prima facie sufficiency was “an evidentiary standard, not
a pleading requirement.”Id. at 510, 122 S.Ct. 992. The
Court characterized our ruling as unwarrantedly imposing a
“heightened pleading standard in employment discrimination
cases [that] conflicts with Federal Rule of Civil Procedure
8(a)(2).”Id. at 512, 122 S.Ct. 992. The Court explained that
“under a notice pleading system, it is not appropriate to
require a plaintiff to plead facts establishing a prima facie
case.”Id. at 511, 122 S.Ct. 992. The complaint needed only to
“ ‘give the defendant fair notice of what the plaintiff's claim
is and the grounds upon which it rests.’ “ Id. at 512, 122 S.Ct.
992 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct.
99, 2 L.Ed.2d 80 (1957)). The Court thus concluded that the
plaintiff's allegation “that he had been terminated on account
of his national origin in violation of Title VII and on account
of his age in violation of the ADEA” gave the employer “fair
notice of what [the plaintiff's] claims are and the grounds
upon which they rest.” Id. at 514, 122 S.Ct. 992. Reading
Swierkiewicz on its face, it appears to have meant that a Title
VII plaintiff is not required to plead facts supporting even a
minimal inference of discriminatory intent.
*6 The final Supreme Court precedent that bears on the
standard for determining the sufficiency of a Title VII
complaint is Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009). The plaintiff in Iqbal alleged that
governmental defendants, including the Attorney General
of the United States, had unconstitutionally discriminated
against him by reason of his Pakistani nationality and Muslim
religion, resulting in his detention under harsh conditions.

The Court found the complaint insufficient to state a claim
that the defendants had acted with a “discriminatory state of
mind.” Id. at 683, 129 S.Ct. 1937. The Supreme Court had
recently determined in Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), that a
complaint alleging an unlawful agreement in restraint of trade
must include “enough factual matter (taken as true) to suggest
[plausibly] that an agreement was made,”id. at 556, 127 S.Ct.
1955, or otherwise include “enough facts to state a claim to
relief that is plausible on its face,”id. at 570, 127 S.Ct. 1955.
The issue in Iqbal was whether the earlier ruling in Twombly
applied only in the antitrust context or more broadly. The
Court decided that the Twombly ruling did not apply solely
in the antitrust context. It ruled that, “[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.”Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (internal
quotation marks omitted).
The question then arises whether Iqbal's requirement applies
to Title VII complaints falling under the McDonnell Douglas
framework. 7 At least two arguments can be advanced that
the Iqbal requirement does not apply to such cases. The
first is that the requirement to allege facts would appear
contradictory to the Supreme Court's ruling a few years
earlier in Swierkiewicz.The second is that the Iqbal ruling of
otherwise general applicability might not apply to a particular
area for which the Supreme Court in the McDonnell Douglas
quartet had devised a set of special rules that deviate from the
customary prima facie rules.
The best argument that the Iqbal requirement does apply
to Title VII complaints is that the Iqbal ruling is broad,
and the Court gave no suggestion that it should not apply
to cases falling under McDonnell Douglas.As for whether
the applicability of Iqbal to Title VII pleadings would be
contradictory to Swierkiewicz, this depends on how one
interprets Swierkiewicz.Reading that case on its face, it
appears to hold that under the notice pleading regime of
the Federal Rules, a Title VII discrimination complaint need
not assert facts supporting an inference of discriminatory
intent, but may simply use the word discrimination, thereby
adequately communicating to the defendant the nature of
the claim. See Swierkiewicz, 534 U.S. at 511–12, 122 S.Ct.
992. On the other hand, in Twombly, the Supreme Court
cast doubt on whether Swierkiewicz should be interpreted as
meaning that a Title VII complaint did not need to allege facts
giving minimal support to an inference of discrimination.
The plaintiff in Twombly argued against a requirement to

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plead facts, asserting that such a requirement would be
contrary to the Swierkiewicz holding. See Twombly, 550 U.S.
at 569, 127 S.Ct. 1955 (noting that the plaintiff contended
that the position adopted by the Court “runs counter to
[Swierkiewicz's holding] that a complaint in an employment
discrimination lawsuit [need] not contain specific facts
establishing a prima facie case of discrimination” (internal
quotation marks omitted)). The Court rejected the plaintiff's
argument. The Court characterized Swierkiewicz as meaning
nothing more than that the plaintiff's pleadings contained
sufficient factual allegations to satisfy the “liberal pleading
requirements” of the Federal Rules and that our Circuit
had improperly invoked a “heightened pleading standard for
Title VII cases” by requiring the plaintiff “to allege certain
additional facts that [he] would need at the trial stage.”Id. at
570, 127 S.Ct. 1955. 8
*7 As for the argument that the Supreme Court was
unlikely to have intended in Iqbal to add new wrinkles
to the special field of Title VII suits, which the Supreme
Court had so extensively covered in the McDonnell Douglas
quartet of cases, arguably there is no incompatibility, or
even tension, between the burden-shifting framework of
McDonnell Douglas and a requirement that the complaint
include reference to sufficient facts to make its claim
plausible—at least so long as the requirement to plead facts is
assessed in light of the presumption that arises in the plaintiff's
favor under McDonnell Douglas in the first stage of the
litigation.
[4] It is uncertain how the Supreme Court will apply
Iqbal's requirement of facts sufficient to support plausibility
to Title VII complaints falling under the McDonnell Douglas
framework. We conclude that Iqbal's requirement applies
to Title VII complaints of employment discrimination, but
does not affect the benefit to plaintiffs pronounced in the
McDonnell Douglas quartet. To the same extent that the
McDonnell Douglas temporary presumption reduces the facts
a plaintiff would need to show to defeat a motion for
summary judgment prior to the defendant's furnishing of a
non-discriminatory motivation, that presumption also reduces
the facts needed to be pleaded under Iqbal.
The Iqbal requirement is for facts supporting “plausibility.”
The Supreme Court explained that “[t]he 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, 556 U.S. at 678, 129 S.Ct. 1937. The
question we face is what, in the Title VII context, must be

plausibly supported by factual allegations when the plaintiff
does not have direct evidence of discriminatory intent at
the outset. Answering this question requires attention to the
shifting content of the prima facie requirements in a Title
VII employment discrimination suit. Recapitulating what we
have spelled out above, while the plaintiff ultimately will
need evidence sufficient to prove discriminatory motivation
on the part of the employer-defendant, at the initial stage of
the litigation—prior to the employer's coming forward with
the claimed reason for its action—the plaintiff does not need
substantial evidence of discriminatory intent. If she makes a
showing (1) that she is a member of a protected class, (2)
that she was qualified for the position she sought, (3) that she
suffered an adverse employment action, and (4) can sustain
a minimal burden of showing facts suggesting an inference
of discriminatory motivation, then she has satisfied the prima
facie requirements and a presumption of discriminatory intent
arises in her favor, at which point the burden of production
shifts to the employer, requiring that the employer furnish
evidence of reasons for the adverse action. Burdine, 450 U.S.
at 253–54, 101 S.Ct. 1089; St. Mary's Honor Ctr., 509 U.S.
at 506–07, 113 S.Ct. 2742. At this stage, a plaintiff seeking
to defeat a defendant's motion for summary judgment would
not need evidence sufficient to sustain her ultimate burden of
showing discriminatory motivation, but could get by with the
benefit of the presumption if she has shown evidence of the
factors entitling her to the presumption.
*8 The discrimination complaint, by definition, occurs in
the first stage of the litigation. Therefore, the complaint
also benefits from the temporary presumption and must be
viewed in light of the plaintiff's minimal burden to show
discriminatory intent. The plaintiff cannot reasonably be
required to allege more facts in the complaint than the plaintiff
would need to defeat a motion for summary judgment made
prior to the defendant's furnishing of a non-discriminatory
justification. Cf. Swierkiewicz, 534 U.S. at 511–12, 122 S.Ct.
992 (“It ... seems incongruous to require a plaintiff, in order
to survive a motion to dismiss, to plead more facts than he
may ultimately need to prove to succeed on the merits if direct
evidence of discrimination is discovered.”).
In other words, absent direct evidence of discrimination, what
must be plausibly supported by facts alleged in the complaint
is that the plaintiff is a member of a protected class, was
qualified, suffered an adverse employment action, and has at
least minimal support for the proposition that the employer
was motivated by discriminatory intent. The facts alleged
must give plausible support to the reduced requirements that

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arise under McDonnell Douglas in the initial phase of a Title
9

VII litigation. The facts required by Iqbal to be alleged in
the complaint need not give plausible support to the ultimate
question of whether the adverse employment action was
attributable to discrimination. They need only give plausible
support to a minimal inference of discriminatory motivation.
We now turn to the assessment of the sufficiency of
Littlejohn's several claims.

II. Disparate Treatment Claim
Littlejohn alleges disparate treatment based on race as a
result of her demotion from EEO Director to a lower-paying,
non-managerial analyst position in March 2011. Littlejohn's
disparate treatment claim under Title VII, § 1981, and § 1983
is subject to the burden-shifting evidentiary framework set
forth in McDonnell Douglas. See Ruiz v. Cnty. of Rockland,
609 F.3d 486, 491 (2d Cir.2010). As set forth above, because
this appeal involves review of a motion to dismiss, we
focus only on whether the allegations in the complaint give
plausible support to the reduced prima facie requirements
that arise under McDonnell Douglas in the initial phase of a
litigation.

actions taken against other employees who worked for
different agencies and who had different jobs, see Compl.
¶¶ 17–24, the district court correctly concluded that adverse
actions taken against employees who are not similarly
situated cannot establish an inference of discrimination. See
Mandell v. Cnty. of Suffolk, 316 F.3d 368, 379 (2d Cir.2003)
(explaining that a plaintiff attempting to “show[ ] that the
employer treated [her] less favorably than a similarly situated
employee outside [her] protected group ... must show she was
similarly situated in all material respects to the individuals
with whom she seeks to compare herself.”(internal quotation
marks omitted)).

*9 [9] However, an inference of discrimination also
arises when an employer replaces a terminated or demoted
employee with an individual outside the employee's protected
class. See, e.g., Carlton v. Mystic Transp., Inc., 202 F.3d
129, 135 (2d Cir.2000) (“[A] plaintiff has demonstrated an
inference of age discrimination and thus established a prima
facie case ... where the majority of plaintiff's responsibilities
were transferred to a younger co-worker.”); de la Cruz v.
N.Y.C. Human Res. Admin. Dep't of Soc. Servs., 82 F.3d
16, 20 (2d Cir.1996) (“As a Puerto Rican, de la Cruz is a
member of a protected class. Because de la Cruz was replaced
by a black female, he also satisfies the fourth prong of the
prima facie case.”); Cook v. Arrowsmith Shelburne, Inc., 69
A. Littlejohn's Disparate Treatment Allegations
F.3d 1235, 1239 (2d Cir.1995) (“To establish a prima facie
[5]
[6] The parties do not dispute that Littlejohn's case of gender discrimination, a female plaintiff must show
allegations would be sufficient to establish the first three
that she was qualified for the position, that her employer
prongs of a prima facie case of discrimination in the initial
discharged her, and that the employer sought or hired a
phase, as the complaint alleges that she belongs to a protected
male to replace her.”). As we have explained, “the evidence
class (black), was qualified for the EEO Director position at
necessary to satisfy th[e] initial burden” of establishing that
issue, and suffered an adverse employment action through
an adverse employment action occurred under circumstances
10
her demotion.
Rather, the parties dispute whether the
giving rise to an inference of discrimination is “minimal.”
allegations give plausible support to the conclusion that the
Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376,
demotion occurred under circumstances giving rise to an
381 (2d Cir.2001). The fact that a plaintiff was replaced by
inference of discrimination.
someone outside the protected class will ordinarily suffice for
the required inference of discrimination at the initial prima
[7]
[8] An inference of discrimination can arise from facie stage of the Title VII analysis, including at the pleading
circumstances including, but not limited to, “the employer's
stage. Id.
criticism of the plaintiff's performance in ethnically degrading
terms; or its invidious comments about others in the
[10] Littlejohn alleges that she was replaced by a white
employee's protected group; or the more favorable treatment
ACS employee, Fredda Monn, after she was demoted
of employees not in the protected group; or the sequence
from EEO Director. Littlejohn also alleges that Monn was
of events leading to the plaintiff's discharge.”Leibowitz v.
less qualified for the position. According to Littlejohn's
Cornell Univ., 584 F.3d 487, 502 (2d Cir.2009) (internal
complaint, Monn had “no prior EEO experience,” as
quotation marks omitted). As pleaded, none of Defendants'
she “was previously the Director of the Accountability/
actions directly indicates racial bias. Additionally, to the
Review Unit that had nothing to do with EEO matters”
extent Littlejohn attempts to rely on adverse employment
but rather “involved the comprehensive review of child

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welfare case practices.”Compl. ¶ 78. Littlejohn's factual
allegations are more than sufficient to make plausible her
claim that her demotion occurred under circumstances giving
rise to an inference of discrimination. See Zimmermann,
251 F.3d at 381. 11 Accordingly, we hold that Littlejohn's
complaint alleges sufficient facts to satisfy the requirements
of Iqbal.The district court therefore erred in dismissing this
claim.

B. Liability of the Individual and City Defendants
[11] We must now determine, based on these allegations,
which Defendants must face Littlejohn's disparate treatment
claim under Title VII and §§ 1981 and 1983. We first
note that Title VII “does not create liability in individual
supervisors and co-workers who are not the plaintiffs' actual
employers.”Raspardo v. Carlone, 770 F.3d 97, 113 (2d
Cir.2014). Thus, Littlejohn's disparate treatment claim under

subordinates who committed the
wrongful acts, or (5) the defendant
exhibited deliberate indifference ...
by failing to act on information
indicating that unconstitutional acts
were occurring.
Back, 365 F.3d at 127. In addition to fulfilling one of
these requirements, “a plaintiff must also establish that the
supervisor's actions were the proximate cause of the plaintiff's
constitutional deprivation. Finally, as with individual
liability, in the § 1983 context, a plaintiff must establish that
a supervisor's behavior constituted intentional discrimination
on the basis of a protected characteristic....”Raspardo, 770
F.3d at 116 (citation omitted).

[16] Littlejohn does not allege that Mattingly or Stradford
had any personal involvement in Littlejohn's demotion, as
Littlejohn concedes that Baker alone made the decision
Title VII fails as to Defendants Baker, Mattingly, 12 and
to demote her. In fact, Littlejohn alleges that Mattingly
Stradford, but survives as to her employer, the City.
“encouraged” Littlejohn to “be part of the panel of
managers that implemented the intake of DJJ.” Compl. ¶
*10 [12] [13] [14] [15] Littlejohn's disparate treatment
43. Nothing in the complaint could lead to an inference
claim under §§ 1981 and 1983 fails as to Mattingly and
that Mattingly personally participated in Baker's decision to
Stradford. An individual may be held liable under §§ 1981
demote Littlejohn. Nor do Mattingly's statements that Baker
and 1983 only if that individual is “personally involved in
“was hurt” and that Baker “wields a lot of power around
the alleged deprivation.”Back v. Hastings On Hudson Union
here” create a plausible inference that Mattingly was grossly
Free Sch. Dist., 365 F.3d 107, 127 (2d Cir.2004) (§ 1983);
negligent as Baker's supervisor in allowing Baker to demote
Patterson v. Cnty. of Oneida, 375 F.3d 206, 229 (2d Cir.2004)
her. Id. ¶ 51. Similarly, Stradford's alleged harassment was
(§ 1981); see also Raspardo, 770 F.3d at 116 (“[Section] 1983
relevant only to Littlejohn's sexual harassment claim, not to
requires individual, personalized liability on the part of each
Littlejohn's demotion. Therefore, because only Baker was
government defendant.... ‘[B]ecause vicarious liability is
personally involved in the decision to demote Littlejohn,
inapplicable to ...§ 1983 suits, a plaintiff must plead that each
Littlejohn's disparate treatment claim under §§ 1981 and 1983
Government-official defendant, through the official's own
survives only against Baker.
individual actions, has violated the Constitution.’ “ (second
ellipsis in original) (quoting Iqbal, 556 U.S. at 676, 129 S.Ct.
*11 [17]
[18]
[19] Finally, Littlejohn's disparate
1937)). Personal involvement can be established by showing
treatment claim against the City fails under §§ 1981 and
that:
1983. When a defendant sued for discrimination under §§
1981 or 1983 is a municipality, “the plaintiff is required to
(1) the defendant participated directly
show that the challenged acts were performed pursuant to
in the alleged constitutional violation,
a municipal policy or custom.”Patterson, 375 F.3d at 226
(2) the defendant, after being informed
(citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733–36,
of the violation through a report
109 S.Ct. 2702, 105 L.Ed.2d 598 (1989) (§ 1981); Monell,
or appeal, failed to remedy the
436 U.S. at 692–94, 98 S.Ct. 2018 (§ 1983)). The plaintiff
wrong, (3) the defendant created
“need not identify an express rule or regulation,” but can
a policy or custom under which
show that “a discriminatory practice of municipal officials
unconstitutional practices occurred, or
was so persistent or widespread as to constitute a custom
allowed the continuance of such a
or usage with the force of law, or that a discriminatory
policy or custom, (4) the defendant
practice of subordinate employees was so manifest as to
was grossly negligent in supervising
imply the constructive acquiescence of senior policy-making

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officials.”Id. (citation and internal quotation marks omitted).
Here, Littlejohn does not allege a persistent or widespread
municipal policy or “custom ... with the force of law” that
enabled the discrimination against her—i.e., her demotion—
other than her general and conclusory allegation that there
was such a policy. Littlejohn's claim against the City is, at
bottom, premised on a theory of respondeat superior for
Baker's actions, which cannot be the basis of municipal
defendant liability under §§ 1981 or 1983. Id. Additionally,
Baker's decision to demote Littlejohn cannot establish that
“a discriminatory practice of subordinate employees was
so manifest as to imply the constructive acquiescence of
senior policy-making officials.”Id. (internal quotation marks
omitted). True, a “single unlawful discharge, if ordered
by a person whose edicts or acts may fairly be said to
represent official policy, can, by itself, support a claim against
a municipality.”Back, 365 F.3d at 128 (internal quotation
marks omitted). But Baker was not a final municipal
policymaker such that her isolated personnel decision to
demote Littlejohn could be said to represent official City
policy. See, e.g., Soto v. Schembri, 960 F.Supp. 751, 759
(S.D.N.Y.1997) (noting that “[t]he New York City Charter
vests final policymaking authority with respect to personnel
decisions with the [City's] Personnel Director”).

shows “(1) participation in a protected activity; (2) that the
defendant knew of the protected activity; (3) an adverse
employment action; and (4) a causal connection between the
protected activity and the adverse employment action.”Hicks,
593 F.3d at 164 (internal quotation marks omitted). As with
our analysis of the disparate treatment claim, the allegations
in the complaint need only give plausible support to the
reduced prima facie requirements that arise under McDonnell
Douglas in the initial phase of a Title VII litigation.
*12 The parties do not dispute that Littlejohn's allegations,
taken as true, would suffice to establish the second and
third prongs of a prima facie case of retaliation. Defendants
certainly knew of Littlejohn's complaints of discrimination
in the ACS/DJJ merger process, and Littlejohn's demotion
constitutes an adverse employment action. 15 The parties
dispute, however, whether Littlejohn's actions constitute
protected activities, and whether Littlejohn has plausibly
alleged a causal connection between the protected activities
and the adverse employment action.

A. Protected Activities Under § 704(a)
We first examine whether Littlejohn participated in a
“protected activity” under the retaliation provisions of Title
VII. For purposes of determining whether an activity is
In sum, Littlejohn's disparate treatment claim with respect
protected, § 704(a) includes “both an opposition clause
to her demotion survives against the City under Title
and a participation clause.”Townsend v. Benjamin Enters.,
VII, and against Defendant Baker under §§ 1981
13
Inc., 679 F.3d 41, 48 (2d Cir.2012). The opposition clause
and 1983. Littlejohn's disparate treatment claim against
makes it unlawful for an employer to retaliate against an
Defendants Mattingly and Stradford was properly dismissed
individual because she “opposed any practice” made unlawful
by the district court.
by Title VII, while the participation clause makes it unlawful
to retaliate against an individual because she “made a
charge, testified, assisted, or participated in any manner in
III. Retaliation Claim
[20] [21] Littlejohn also claims she was retaliated against an investigation, proceeding, or hearing under” Title VII.
because of her complaints about racial discrimination in
Id. (quoting 42 U.S.C. § 2000e–3(a)). We have recently
the reorganization process following the merger of ACS
made clear that the participation clause only encompasses
14
participation in formal EEOC proceedings; it “does not
and DJJ. Retaliation claims under Title VII and § 1981
include participation in an internal employer investigation
are both analyzed pursuant to Title VII principles and the
unrelated to a formal EEOC charge.”Id. at 49.
McDonnell Douglas burden-shifting evidentiary framework.
See Hicks v. Baines, 593 F.3d 159, 164 (2d Cir.2010). Section
The district court concluded that Littlejohn's complaints of
704(a) of Title VII includes an anti-retaliation provision
racial discrimination to Mattingly and Baker during the
that makes it unlawful “for an employer to discriminate
ACS/DJJ merger were not protected activities under either
against any ... employee[ ] ... because [that individual]
§ 704(a)'s participation clause or opposition clause. The
opposed any practice” made unlawful by Title VII or “made
district court was correct to conclude that Littlejohn's internal
a charge, testified, assisted, or participated in” a Title VII
complaints of discrimination prior to her EEOC proceedings,
investigation or proceeding. 42 U.S.C. § 2000e–3(a). To
which commenced in October 2011, were not protected
establish a presumption of retaliation at the initial stage of
activities under the participation clause, as those complaints
a Title VII litigation, a plaintiff must present evidence that

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Littlejohn v. City of New York, --- F.3d ---- (2015)
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were “unrelated to a formal EEOC charge.”Id. However, the
district court erred in concluding that Littlejohn's complaints
were not protected activities under the opposition clause.
This Court has not addressed the extent to which an
employee's complaints of discrimination are protected
activities under the opposition clause when that employee's
job responsibilities involve preventing and investigating
discrimination within the company or agency by which she
is employed. Several district courts in this Circuit, focusing
largely on the scope of an employee's job responsibilities,
have held that “a supervisor's involvement, as part of his
routine job duties, in reporting or investigating incidents of
harassment between employees under his supervision does
not qualify as protected activity.”Sarkis v. Ollie's Bargain
Outlet, No. 10–CV–6382 CJS, 2013 WL 1289411, at *13
(W.D.N.Y. Mar. 26, 2013) (emphasis omitted); see also
Adams v. Northstar Location Servs., LLC, No. 09–CV–1063–
JTC, 2010 WL 3911415, at *4 (W.D.N.Y. Oct. 5, 2010)
(“[P]laintiff's actions in investigating the complaint of racebased harassment would not constitute protected activity, as
plaintiff was acting in the scope of her employment as a
human resources director by interviewing the witnesses to
the incident.”); Ezuma v. City Univ. of N.Y., 665 F.Supp.2d
116, 123–24 (E.D.N.Y.2009) (“[I]f an academic chairperson
is required as part of his job to report incidents of sexual
harassment that come to his attention, as is the case here, the
mere performance of that function is not ‘opposition’ to his
employer and does not constitute protected activity.”).
*13 The Supreme Court, however, recently clarified
in Crawford v.Metropolitan Government of Nashville &
Davidson County that, “[w]hen an employee communicates
to her employer a belief that the employer has engaged in ...
a form of employment discrimination, that communication
virtually always constitutes the employee's opposition to the
activity.”555 U.S. 271, 276, 129 S.Ct. 846, 172 L.Ed.2d
650 (2009) (first emphasis added) (internal quotation marks
omitted).Crawford stated that any activity designed “to
resist or antagonize ...; to contend against; to confront;
resist; [or] withstand” discrimination prohibited by Title
VII constitutes a protected oppositional activity. 16 Id.
(internal quotation marks omitted).Crawford is consistent
with our prior decisions, in which we have explained
that protected activities are not limited to complaints
involving discrimination against the complainant herself, but
also extend to complaints of discrimination on behalf of
other employees and complaints of discriminatory practices
generally: Ҥ 704(a)'s opposition clause protects [formal] as

well [as] informal protests of discriminatory employment
practices, including making complaints to management,
writing critical letters to customers, protesting against
discrimination by industry or by society in general, and
expressing support of co-workers who have filed formal
charges.”Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d
Cir.1990).
Significantly, neither Crawford nor Sumner restricted their
holdings to non-managers or to employees whose job
responsibilities are untethered to monitoring discrimination
or enforcing non-discrimination policies. And for good
reason: The plain language of § 704(a)'s opposition clause
—which prohibits employers from “discriminat[ing] against
any... employee [ ] ... because he has opposed any
practice made an unlawful employment practice by this
subchapter,”42 U.S.C. § 2000e–3(a) (emphasis added)—does
not distinguish among entry-level employees, managers, and
any other type of employee.
Defendants suggest that allowing personnel officers to bring
retaliation claims under the opposition clause based on
complaints lodged in connection with their official duties
would create an automatic prima facie case of retaliation for
any terminated human resources or EEO employee. Since
such employees' daily work involves reporting on claims of
discrimination in ways that could be construed as “opposing”
discrimination, Defendants reason that any adverse action
taken against those employees would likely be in close
proximity to such opposition and could consequently risk
embroiling an employer in gratuitous litigation.
Whatever the merits of that argument, we are not empowered
to create exceptions to § 704(a) inconsistent with the
statutory language. In any event, we do not believe that
our interpretation will have any such dire effect. There
is a significant distinction between merely reporting or
investigating other employees' complaints of discrimination,
which simply fulfills a personnel manager's daily duties,
and communicating to the employer the manager's own
“belief that the employer has engaged in ... a form
of employment discrimination,” which “virtually always
constitutes” opposition notwithstanding the employee's
underlying job responsibilities. Crawford, 555 U.S. at 276,
129 S.Ct. 846 (internal quotation marks omitted). Where
the officer merely transmits or investigates a discrimination
claim without expressing her own support for that claim,
“the mere passing on of [a complainant's] statements by a
supervisor or human resources manager is not inherently

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Littlejohn v. City of New York, --- F.3d ---- (2015)
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‘oppositional’ in the same way as the victim's own report of
that misconduct.”Ezuma, 665 F.Supp.2d at 123.
*14 [22] Accordingly, consistent with Crawford, Sumner,
and the plain language of § 704(a), we hold as follows:
To the extent an employee is required as part of her job
duties to report or investigate other employees' complaints
of discrimination, such reporting or investigating by itself
is not a protected activity under § 704(a)'s opposition
clause, because merely to convey others' complaints of
discrimination is not to oppose practices made unlawful
by Title VII. But if an employee—even one whose
job responsibilities involve investigating complaints of
discrimination—actively “support[s]” other employees in
asserting their Title VII rights or personally “complain[s]” or
is “critical” about the “discriminatory employment practices”
of her employer, that employee has engaged in a protected
activity under § 704(a)'s opposition clause. Sumner, 899 F.2d
at 209.
[23] Here, Littlejohn alleges that she, “in her capacity as
Director of EEO [,] repeatedly objected and complained to
defendants Mattingly and Baker about defendants' selection
process and failure to abide by proper anti-discrimination
policies and procedures.”Compl. ¶ 64. Littlejohn also alleges
that she “objected to defendants Mattingly and Bakers'
discriminatory policies during scheduled meetings with
them” over the course of more than a year. Id. ¶ 65. Littlejohn
argues on appeal that she stepped outside her role as EEO
Director when she advocated for minority DJJ employees,
but regardless of whether she made these complaints
in her capacity as EEO Director, Ҥ 704(a)'s opposition
clause protects” such “complaints to management” and
“protest[s] against discrimination.” Sumner, 899 F.2d at
209. Littlejohn was not simply conveying others' complaints
of discrimination to Mattingly and Baker or alerting them
to Title VII's mandates; she was complaining about what
she believed was unlawful discrimination in the personnel
decision-making process during the ACS/DJJ merger. Her
complaints of discrimination were protected activities under
§ 704(a)'s opposition clause.

B. Causal Connection Between the Protected Activity
and the Adverse Employment Action
We next consider whether Littlejohn pleaded a causal
connection between the protected activities and her demotion.
Although the district court cabined Littlejohn's protected
activities to two discrete time periods—between January and
April 2010, and after October 2010—Littlejohn in fact alleges

that “[d]uring the above stated time period [between January
2010 and March 2011], Plaintiff in her capacity as Director
of EEO repeatedly objected and complained to defendants
Mattingly and Baker about defendants' selection process and
failure to abide by proper policies and procedures.”Compl.
¶¶ 63–64. Littlejohn also claimed that “[f]rom on or about
January 2010 to March 14, 2011 Plaintiff objected to
defendants Mattingly and Bakers' discriminatory policies
during scheduled meetings with them.”Id. ¶ 65 (emphasis
added). Accordingly, Littlejohn alleges that her complaints
about racial discrimination began around the time of the ACS/
DJJ merger and continued until she was demoted from EEO
Director.
*15 A causal connection in retaliation claims can be shown
either “(1) indirectly, by showing that the protected activity
was followed closely by discriminatory treatment, or through
other circumstantial evidence such as disparate treatment
of fellow employees who engaged in similar conduct; or
(2) directly, through evidence of retaliatory animus directed
against the plaintiff by the defendant.”Gordon v. N.Y.C. Bd. of
Educ., 232 F.3d 111, 117 (2d Cir.2000). As discussed above,
none of Defendants' actions directly indicates racial bias, nor
do those actions directly establish retaliatory animus based on
Littlejohn's complaints of discrimination during the ACS/DJJ
merger.
[24]
However, Littlejohn sufficiently pleaded facts
that would indirectly establish causation. According to
Littlejohn's complaint, her demotion closely followed her
protests of discrimination. Although the district court
concluded that Littlejohn's complaints of discrimination
began over a year before her March 2011 demotion, Littlejohn
alleges that she “objected and complained” to Defendants
through March 14, 2011—the day of her demotion—and
described in her complaint specific instances in which she
objected to discrimination during the year preceding her
demotion. Compl. ¶¶ 48–51, 65. At the motion to dismiss
stage, we accept these allegations as true and draw all
inferences in Littlejohn's favor. See Ofori–Tenkorang, 460
F.3d at 300. We have “not drawn a bright line to define
the outer limits beyond which a temporal relationship is
too attenuated to establish a causal relationship between
the exercise of a federal constitutional right and an
allegedly retaliatory action.”Gorman–Bakos v. Cornell Coop.
Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d
Cir.2001). But Littlejohn's allegations that the demotion
occurred within days after her complaints of discrimination

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Littlejohn v. City of New York, --- F.3d ---- (2015)
2015 WL 4604250

are sufficient to plausibly support an indirect inference of
causation.

17

Because Littlejohn's complaint alleges that her “protected
activity was followed closely by discriminatory
treatment,”Gordon, 232 F.3d at 117, and because Littlejohn
alleges facts that would be sufficient to establish the other
elements of a prima facie case of retaliation, her allegations
were more than sufficient to withstand the instant motion
to dismiss. The district court erred in dismissing this claim.
Littlejohn's retaliation claim therefore survives against the
City under Title VII and survives against Defendant Baker
under § 1981. As with her disparate treatment claim,
Littlejohn's retaliation claim against Defendants Mattingly
and Stradford was properly dismissed because they were not
involved in her demotion.

IV. Hostile Work Environment Claim
[25] Littlejohn alleges that individual Defendants Mattingly
and Baker created a hostile work environment based on
Littlejohn's race from January 2010 to September 2012 in
violation of Title VII, § 1981, and § 1983. Title VII prohibits
an employer from discriminating in “compensation, terms,
conditions, or privileges of employment, because of [an]
individual's race, color, religion, sex or national origin.”42
U.S.C. § 2000e–2(a)(1).“The phrase terms, conditions, or
privileges of employment evinces a congressional intent
to strike at the entire spectrum of disparate treatment ...,
which includes requiring people to work in a discriminatorily
hostile or abusive environment.”Redd v. N.Y. Div. of Parole,
678 F.3d 166, 175 (2d Cir.2012) (internal quotation marks
omitted).Section 1981 provides that “[a]ll persons within
the jurisdiction of the United States shall have the same
right in every State ... to the full and equal benefit of
all laws and proceedings for the security of persons and
property as is enjoyed by white citizens.”42 U.S.C. § 1981.
Section 1981 has been interpreted to “provide[ ] a cause
of action for race-based employment discrimination based
on a hostile work environment.”Whidbee v. Garzarelli Food
Specialties, Inc., 223 F.3d 62, 69 (2d Cir.2000). Finally,
§ 1983 provides that “[e]very 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.”42 U.S.C. § 1983. Section
1983, through its application of the Equal Protection Clause

of the Fourteenth Amendment, “protect[s] public employees
from various forms of discrimination, including hostile work
environment and disparate treatment” on the basis of race.
Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir.2006).
*16 [26]
[27]
[28]
[29] To establish a hostile
work environment under Title VII, § 1981, or § 1983,
a plaintiff must show that “the workplace is permeated
with discriminatory intimidation, ridicule, and insult that
is sufficiently severe or pervasive to alter the conditions
of the victim's employment and create an abusive working
environment.”Harris v. Forklift Sys., Inc., 510 U.S. 17, 21,
114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (citations and internal
quotation marks omitted).“This standard has both objective
and subjective components: the conduct complained of must
be severe or pervasive enough that a reasonable person would
find it hostile or abusive, and the victim must subjectively
perceive the work environment to be abusive.”Raspardo,
770 F.3d at 114 (citing Harris, 510 U.S. at 21–22, 114
S.Ct. 367).“The incidents complained of must be more
than episodic; they must be sufficiently continuous and
concerted in order to be deemed pervasive.”Id. (internal
quotation marks omitted). In determining whether a plaintiff
suffered a hostile work environment, we must consider the
totality of the circumstances, including “the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work
performance.”Harris, 510 U.S. at 23, 114 S.Ct. 367.
Littlejohn's hostile work environment claim is predicated on
the following allegations 18 : Baker made negative statements
about Littlejohn to Mattingly; Baker was impatient and
used harsh tones with Littlejohn; Baker distanced herself
from Littlejohn when she was nearby; Baker declined to
meet with Littlejohn; Baker required Littlejohn to recreate
reasonable accommodation logs; Baker replaced Littlejohn
at meetings; Baker wrongfully reprimanded Littlejohn; and
Baker increased Littlejohn's reporting schedule. Baker also
sarcastically told Littlejohn “you feel like you are being left
out,” and that Littlejohn did not “understand the culture” at
ACS. Compl. ¶¶ 49, 77.
[30] These allegations could not support a finding of hostile
work environment that is so severe or pervasive as to have
altered the conditions of Littlejohn's employment. See, e.g.,
Fleming v. MaxMara USA, Inc., 371 Fed.Appx. 115, 119
(2d Cir.2010) (concluding that no hostile work environment
existed even though “defendants wrongly excluded [the

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Littlejohn v. City of New York, --- F.3d ---- (2015)
2015 WL 4604250

plaintiff] from meetings, excessively criticized her work,
refused to answer work-related questions, arbitrarily imposed
duties outside of her responsibilities, threw books, and sent
rude emails to her”); see also Davis–Molinia v. Port Auth.
of N.Y. & N.J., No. 08 CV 7586(GBD), 2011 WL 4000997,
at *11 (S.D.N.Y., Aug. 19, 2011) (finding that “diminished
[job] responsibilities,” “exclu[sion] from staff meetings,”
deliberate “avoid[ance],” “yell[ing] and talk[ing] down to,”
and an increased workload of menial tasks, among other
factors, was not enough to show that defendants' conduct was
sufficiently severe or pervasive), aff'd,488 Fed.Appx. 530 (2d
Cir.2012). The claim was therefore properly dismissed.

the claims are reasonably related to each other. Id. at 202.
This exception to the exhaustion requirement for reasonably
related claims is “based on the recognition that EEOC charges
frequently are filled out by employees without the benefit
of counsel and that their primary purpose is to alert the
EEOC to the discrimination that a plaintiff claims [she] is
suffering.”Id. at 201 (internal quotation marks omitted); cf.
Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d
1081, (2007) (per curiam) (observing that “a pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers” (internal
quotation marks omitted)).

In Littlejohn's Intake Questionnaire and Charge of
Discrimination filed with the EEOC on October 21, 2011,
and February 2, 2012, respectively, Littlejohn claimed
discrimination based on race and color. In the Charge of
Discrimination, Littlejohn also claimed retaliation based on
her complaints about such discrimination. Yet on neither
19
and dismissed it for lack of jurisdiction. We agree that
of these forms did Littlejohn claim discrimination based on
Littlejohn's sexual harassment claim was properly dismissed
sex, even though there is a box to indicate discrimination
for failure to exhaust her administrative remedies.
based on sex located directly next to those for race and color.
Nor did she reference Stradford or any of his alleged acts
[31]
[32]
[33] Before bringing a Title VII suit in of sexual harassment in those completed forms or in her
federal court, an individual must first present “the claims
supplemental statements describing why she believed she
forming the basis of such a suit ... in a complaint to the
was being discriminated against. Indeed, Littlejohn's Intake
EEOC or the equivalent state agency.”Williams v. N.Y.C.
Questionnaire and Charge of Discrimination do not include
Hous. Auth., 458 F.3d 67, 69 (2d Cir.2006) (per curiam)
any factual allegations whatsoever describing the alleged
(citing 42 U.S.C. § 2000e–5). The complainant must file
sexual harassment by Stradford, even though the harassment
the complaint with the relevant agency “within 300 days
allegedly began in March 2011, well before she completed
of the alleged discriminatory conduct and, before bringing
these forms.
suit, must receive a ‘Notice of Right to Sue’ letter from
the EEOC.”Id. Nevertheless, claims not raised in an EEOC
*18 [34] We agree with the district court that Littlejohn's
complaint may still be part of the complaint later filed in
sexual harassment claim is not “reasonably related” to her
federal court “if they are ‘reasonably related’ to the claim
EEOC discrimination claims, which were based solely on
filed with the agency.”Id. at 70. A claim is reasonably
race and color. Stradford's alleged sexual harassment does
related to the filed claim “if the conduct complained of
not “fall within the scope of the EEOC investigation which
would fall within the scope of the EEOC investigation which
can reasonably be expected to grow out of the charge[s]”
can reasonably be expected to grow out of the charge that
of race discrimination Littlejohn levied against Baker and
was made.”Deravin v. Kerik, 335 F.3d 195, 200–01 (2d
Mattingly, Deravin, 335 F.3d at 200–01, as Stradford had no
Cir.2003) (internal quotation marks omitted). In making such
involvement in the race discrimination that allegedly occurred
a determination, we focus “on the factual allegations made
during the ACS/DJJ merger.
in the [EEOC] charge itself, describing the discriminatory
conduct about which a plaintiff is grieving.”Id. at 201
[35] Littlejohn argues that the letter she sent to Kevin
(alteration in original) (internal quotation marks omitted).
Berry, the Director of the EEOC New York District
For instance, if the factual allegations in the EEOC charge
Office, in which she referenced an “additional charge of
“suggest [two] forms of discrimination”—even though the
hostile work environment-sexual harassment at the hands
charge itself specifies only one—“so that the agency receives
of [Stradford],” Littlejohn Aff., Ex. 11, itself constituted
adequate notice to investigate discrimination on both bases,”
a charge of discrimination sufficient to fulfill Title VII's
V. Sexual Harassment Claim
*17
Littlejohn alleges that Defendant Stradford
continuously sexually harassed her in violation of Title VII.
The district court found that Littlejohn did not exhaust
her administrative remedies with respect to this claim

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Littlejohn v. City of New York, --- F.3d ---- (2015)
2015 WL 4604250

exhaustion requirements. However, we have made clear that
unsworn letters sent to the EEOC describing additional claims
of discrimination unrelated to the claims described in the
EEOC charge cannot “enlarge [the] scope [of the original
charge] to include new claims.”Holtz v. Rockefeller & Co.,
258 F.3d 62, 83 (2d Cir.2001). Although “EEOC regulations
do allow ‘written statements' of fact to amend a charge,”
those regulations allow such amendments “only insofar as
they ‘clarify and amplify allegations made’ in the original
charge or ‘alleg[e] additional acts which constitute unlawful
employment practices related to or growing out of the subject
matter of the original charge.’ “ Id. (quoting 29 C.F.R. §

claims; 23 and REMAND for proceedings consistent with
this opinion.
1

Because this appeal involves review at the motion to
dismiss stage, we base these facts on the allegations
contained in Littlejohn's amended complaint (“Compl.”),
which we accept as true at this stage, and the documents
incorporated by reference therein. See DiFolco v.
MSNBC Cable L.L.C., 622 F.3d 104, 110–11 (2d
Cir.2010).

2

An “Intake Questionnaire” allows an employee to
provide the EEOC with basic preliminary information
about herself, her employer, and the reason for her
claim of discrimination, and begins the process of
filing a charge of discrimination. When the Intake
Questionnaire manifests intent to have the agency initiate
its investigatory processes, the questionnaire can itself
constitute a charge of discrimination. See Holowecki v.
Fed. Express Corp., 440 F.3d 558, 566–67 (2d Cir.2006).

3

In reviewing a Rule 12(b)(6) motion to dismiss, “it is
proper for this court to consider the plaintiff[']s relevant
filings with the EEOC” and other documents related
to the plaintiff's claim, even if they are not attached
to the complaint, so long as those filings are either
“incorporate[d] by reference” or are “integral to” and
“solely relie[d]” upon by the complaint. Holowecki, 440
F.3d at 565–66.

4

Littlejohn has abandoned her constructive discharge
claim on appeal.

5

Littlejohn's letter was in response to a September 19,
2012 letter that she received from Berry in which Berry
purportedly informed Littlejohn that her request for
a right to sue letter had been forwarded to the U.S.
Department of Justice for action. Littlejohn does not
appear to have submitted Berry's letter to the district
court and it is not part of the record on appeal.

6

Of course, while a “satisfactory explanation by the
defendant destroys the legally mandatory inference
of discrimination arising from the plaintiff's initial
evidence,” the initial “evidence [used to establish
the prima facie case] and inferences properly drawn
therefrom may be considered by the trier of fact on
the issue of whether the defendant's explanation is
pretextual.”Burdine, 450 U.S. at 255 n. 10, 101 S.Ct.
1089.

7

We note that in E.E.O.C. v. Port Authority of New York &
New Jersey, 768 F.3d 247 (2d Cir.2014), our Court found
that the Iqbal requirement was applicable to a complaint

1601.12(b) 20 ) (alteration in original). A letter sent to the
EEOC regarding a charge of discrimination is therefore
“entitled to consideration only to the extent that it could
be deemed an amendment to the original charge within the
meaning of § 1601.12(b).” Id.It cannot “enlarge the scope
of the [original EEOC] charge to encompass new unlawful
employment practices or bases for discrimination.” Id.
Here, Littlejohn's letter to Berry did not simply “clarify and
amplify allegations made in the original [EEOC] charge,”
which claimed discrimination based solely on race and color,
but rather included a “new unlawful employment practice[ ]
or bas[i]s for discrimination” based on sexual harassment.
Id. (internal quotation marks omitted). 21 Littlejohn could
have filed a separate charge with the EEOC alleging an
additional basis of discrimination within the appropriate
limitations period, but she could not amend prior unrelated
charges to add this additional basis simply by sending
Berry an unsworn letter. 22 See id.; 29 C.F.R. § 1601.12(b).
Accordingly, Littlejohn did not present “the claims forming
the basis” of her sexual harassment suit “in a complaint
to the EEOC or the equivalent state agency,”Williams,
458 F.3d at 69, and she therefore failed to exhaust her
administrative remedies as to that claim. The district court
properly dismissed her sexual harassment claim.

CONCLUSION
*19 For the foregoing reasons, we VACATE the district
court's judgment granting Defendants' motion to dismiss with
respect to (1) Littlejohn's disparate treatment and retaliation
claims against the City under Title VII, (2) Littlejohn's
disparate treatment claim against Defendant Baker under §§
1981 and 1983, and (3) Littlejohn's retaliation claim against
Baker under § 1981; AFFIRM the dismissal of the other

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Littlejohn v. City of New York, --- F.3d ---- (2015)
2015 WL 4604250
alleging a violation of the Equal Pay Act. See id. at
254. That case does not answer the question whether the
Iqbal rule applies to Title VII complaints governed by
McDonnell Douglas.Under the Equal Pay Act, liability
turns on whether lesser pay is given for equivalent workdiscriminatory motivation is not an element of the claim.
See Lavin–McEleney v. Marist Coll., 239 F.3d 476, 480
(2d Cir.2001). Moreover, the Equal Pay Act does not
fall under the burden-shifting framework of McDonnell
Douglas. See Belfi v. Prendergast, 191 F.3d 129, 135 (2d
Cir.1999).

8

Twombly also pointed to Swierkiewicz for the unrelated
point that courts must assume the truth of sufficiently
detailed factual allegations in passing upon a 12(b)(6)
motion. Twombly, 550 U.S. at 555–56, 127 S.Ct. 1955.

9

To the extent Littlejohn attempts to point to exclusion
from meetings involving the ACS/DJJ merger as part
of her disparate treatment claim, such exclusion does
not constitute an adverse employment action within
the meaning of Title VII. An adverse employment
action is “more disruptive than a mere inconvenience
or an alteration of job responsibilities.”Galabya v.
N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000)
(internal quotation marks omitted). It is “a materially
significant disadvantage with respect to the terms of [the
plaintiff's] employment.”Williams v. R.H. Donnelley,
Corp., 368 F.3d 123, 128 (2d Cir.2004) (emphasis
added) (internal quotation marks omitted). Examples of
materially significant disadvantages include termination,
demotion, “a less distinguished title, a material loss
of benefits, [or] significantly diminished material
responsibilities.”Galabya, 202 F.3d at 640. Baker's
failure to include Littlejohn in the decision-making
process of the merger did not “significantly diminish[ ]”
Littlejohn's responsibilities. Id.

12

Although the complaint also alleges suit against
Mattingly in his official capacity, Littlejohn does not
argue on appeal that the district court erred in dismissing
her claims against Mattingly in his official capacity. We
therefore deem the argument forfeited. See Norton v.
Sam's Club, 145 F.3d 114, 117 (2d Cir.1998) (“Issues not
sufficiently argued in the briefs are considered waived
and normally will not be addressed on appeal.”).

13

It is uncontested at this stage that Baker was acting under
color of state law when she demoted Littlejohn, as is
required for § 1983 liability. See, e.g., Annis v. Cnty. of
Westchester, 36 F.3d 251, 254 (2d Cir.1994) (“There can
be no question that defendants ... are, in their personal
capacities, amenable to suit under [§ 1983], inasmuch
as they were conducting themselves as supervisors for
a public employer and thus were acting under color of
state law [when they allegedly discriminated against the
plaintiff].”).

14

The Equal Protection Clause does not protect against
retaliation due to complaints of racial discrimination.
Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir.1996).
Littlejohn's retaliation claim therefore fails under § 1983.
Section 1981, however, does encompass retaliation
claims. See CBOCS W., Inc. v. Humphries, 553 U.S. 442,
446, 128 S.Ct. 1951, 170 L.Ed.2d 864 (2008).

15

As described above, only Littlejohn's demotion
constitutes an adverse employment action, not her
exclusion from meetings involving the ACS/DJJ merger.
See Galabya, 202 F.3d at 640. In any case, Littlejohn was
excluded from meetings before she began complaining
about discrimination in the merger process, so that
exclusion could not have been in retaliation for her
complaints.

16

Prior to Crawford, certain Circuits had applied the socalled “manager rule” to retaliation claims under the
Fair Labor Standards Act, which other courts, in turn,
imported to claims under Title VII. This rule provided
that complaints of discrimination within the scope of
a manager's job duties are not protected activities,
and that, in order to engage in protected activity,
the employee must “step outside his or her role of
representing the company” and take action adverse to
the company.McKenzie v. Renberg's Inc., 94 F.3d 1478,
1486 (10th Cir.1996); see also Brush v. Sears Holdings

The First Circuit perhaps intended to convey a similar
understanding of the interplay between Iqbal and the
McDonnell Douglas quartet when it stated that “the
elements of a prima facie case may be used as a prism to
shed light upon the plausibility of the claim.”Rodriguez–
Reyes v. Molina–Rodriguez, 711 F.3d 49, 54 (1st
Cir.2013).

10

reasons for not promoting him were pretextual on
a motion for summary judgment. 541 Fed.Appx. at
12–13. At the prima facie stage, “the mere fact
that a plaintiff was replaced by someone outside the
protected class will suffice for the required inference of
discrimination.”Zimmermann, 251 F.3d at 381.

11

Defendants, citing Harding v. Wachovia Capital
Markets, LLC, 541 Fed.Appx. 9 (2d Cir.2013), argue that
Littlejohn needed to plead factual allegations indicating
that her qualifications were “so superior” to those
of Monn that no reasonable employer could have
chosen Monn over Littlejohn for the position. Defs.'
Br. 27. Harding, however, involved a plaintiff's failure
to demonstrate that the defendants' non-discriminatory

© 2015 Thomson Reuters. No claim to original U.S. Government Works.

21

Littlejohn v. City of New York, --- F.3d ---- (2015)
2015 WL 4604250
Corp., 466 Fed.Appx. 781, 787 (11th Cir.2012); Hagan
v. Echostar Satellite, L.L.C., 529 F.3d 617, 627–28 (5th
Cir.2008). It is unclear whether Crawford superseded the
manager rule. See Weeks v. Kansas, 503 Fed.Appx. 640,
643 (10th Cir.2012) (explaining that “one might perhaps
argue that McKenzie's rule itself has been superseded”
by Crawford ).But see Brush, 466 Fed.Appx. at 787
(“While Brush argues that Crawford has foreclosed the
‘manager rule,’ we cannot agree.”(footnote omitted));
Collazo v. Bristol–Myers Squibb Mfg., Inc., 617 F.3d 39,
49 (1st Cir.2010) (“assum [ing],” post-Crawford, that “to
engage in protected conduct under Title VII's retaliation
provision, an employee must step outside his ordinary
employment role of representing the company and take
action adverse to the company”). In any event, we decline
to adopt the manager rule here. The manager rule's focus
on an employee's job duties, rather than the oppositional
nature of the employee's complaints or criticisms, is
inapposite in the context of Title VII retaliation claims.

17

18

19

Littlejohn's formal EEOC proceedings beginning in
October 2011, however, are not causally connected
to her demotion because those proceedings began
more than six months after her demotion in March.
Thus, her demotion cannot have occurred in retaliation
for them. Similarly, Littlejohn's participation as a
witness for fellow employee Tonia Haynes in Haynes's
discrimination suit against ACS occurred in December
2011, well after Littlejohn's demotion.
Because there is nothing in Littlejohn's EEOC charge
that would have put the agency on notice that she was
alleging hostile work environment on the basis of sex
or sexual harassment, the EEOC cannot reasonably have
been expected to investigate whether she experienced a
hostile work environment based on sex. We therefore do
not consider Littlejohn's sexual harassment allegations
against Stradford in our analysis, as such allegations
are not “reasonably related” to her hostile work
environment claim based on race and color, as discussed
below.Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 70
(2d Cir.2006) (per curiam).
The district court held that Littlejohn's failure to
exhaust administrative remedies precluded the court
from asserting jurisdiction. While Littlejohn's failure

End of Document

to exhaust her administrative remedies did justify the
dismissal of the claim, it was not for lack of jurisdiction.
See Francis v. City of New York, 235 F.3d 763, 768
(2d Cir.2000) (holding that exhaustion of administrative
remedies is not a “jurisdictional prerequisite” to a Title
VII claim).

20

Section 1601.12(b) provides, in relevant part, that “[a]
charge may be amended to cure technical defects or
omissions, including failure to verify the charge, or
to clarify and amplify allegations made therein.Such
amendments and amendments alleging additional acts
which constitute unlawful employment practices related
to or growing out of the subject matter of the original
charge will relate back to the date the charge was first
received.”29 C.F.R. § 1601.12(b) (emphases added).

21

Furthermore, one of the purposes of an EEOC
charge is to “provide [ ] the EEOC with an
opportunity to notify the prospective defendants and
seek conciliation.”Holowecki, 440 F.3d at 567. Littlejohn
did not send Berry the letter attempting to add a
sexual harassment charge until after she received a
letter from Berry stating that her request that the EEOC
grant her leave to bring a federal civil action with
respect to her race and color discrimination charges had
been forwarded to the Department of Justice, which
effectively terminated that conciliatory process.

22

This is hardly an unreasonable burden to impose,
especially on Littlejohn, whose previous job duties as
ACS's Director of EEO included investigating charges
of discrimination and counseling other employees on the
procedures for making such claims.

23

Littlejohn also raises, for the first time on appeal, a
Monell claim against the City for violating her First
Amendment rights, as well as an equal protection claim
against Stradford for his alleged sexual harassment.
Neither of these claims were included in Littlejohn's
complaint or raised below, and we therefore do not
address them further.

All Citations
--- F.3d ----, 2015 WL 4604250

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22

Mateo v. Bristow, Slip Copy (2015)
2015 WL 925933

2015 WL 925933
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Cesar MATEO, Plaintiff,
v.
C.O. C. BRISTOW, et al., Defendants.
No. 12–cv–5052 (RJS)
(GWG). | Signed March 4, 2015.

OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION
RICHARD J. SULLIVAN, District Judge.
*1 Plaintiff Cesar Mateo (“Plaintiff”), proceeding pro se,
brings this action pursuant to 42 U.S.C. § 1983 against
various corrections officers at the Sing Sing Correctional
Facility (“Sing Sing”), in Ossining, New York, asserting
claims for First Amendment retaliation, deprivation of
property, wrongful confinement, and harassment. (See Doc.
No. 1 (“Compl.”)) Now before the Court is the Report and
Recommendation of the Honorable Gabriel W. Gorenstein,
Magistrate Judge, recommending that the Court grant
Defendants' motion for summary judgment as to the sole
remaining claim—the First Amendment retaliation claim—
for failure to exhaust administrative remedies as required by
the Prison Litigation Reform Act (“PLRA”). (Doc. No. 54
(“Report” or “Rep.”).) For the reasons set forth below, the
Court adopts the Report in its entirety.

A. Background
The Court assumes the parties' familiarity with the facts
of this case, which are set forth thoroughly in the Report.
(Rep. at 3–9.) Plaintiff filed this action on June 26, 2012,
alleging constitutional violations stemming from incidents
that occurred during his incarceration at Sing Sing. (See
Compl.) Plaintiff alleges that on June 36, 2012, when he
was getting ready for his wedding—scheduled to take place
later that day at the facility—corrections officers Dean and
Maldonado, in retaliation for Plaintiff having previously filed
grievances and lawsuits against other corrections officers,
searched his cell, deprived him of his property, and confined

him to his cell in “keeplock.” 1 (Rep. at 3–4.) Plaintiff also
claims that the day after his wedding, which occurred as
planned, he was served with an incident report written by
corrections officer Bristow and co-signed by corrections
officer Ramos, alleging that Plaintiff had played his radio
without headphones and refused to turn the radio over
upon request. (Id. at 6–7.) Plaintiff asserts that the incident
itself never took place, and that the report, which was later
dismissed, was filed by Defendants to retaliate against him.
(Id. at 7.)
1

“Keeplock is a form of administrative segregation in
which the inmate is confined to his cell, deprived of
participation in normal prison routine, and denied contact
with other inmates.”Holland v. Goord, 758 F.3d 215, 218
n. 2 (2d Cir.2014) (citation and internal quotation marks
omitted).

On July 16, 2013, the Court issued an Order dismissing
Plaintiff's claims for deprivation of property, wrongful
confinement, and harassment pursuant to Federal Rule of
Civil Procedure 12(b)(6), but holding that Plaintiff had stated
a claim for retaliation. (Doc. No. 22.) The Court also noted
that Plaintiff had not pursued any administrative avenue
of relief prior to filing the lawsuit, but concluded that
nonexhaustion was not clear from the face of the Complaint
because the Complaint alleged “facts that, if true, could
establish that administrative remedies were functionally
unavailable to him.”(Id. at 4.) On August 2, 2013, the
Court referred this action to Judge Gorenstein for general
pretrial supervision and dispositive motions requiring a report
and recommendation. (Doc. No. 24.) On March 28, 2014,
Defendants filed the instant motion (Doc. No. 40), arguing
that summary judgment should be granted in their favor
because (1) Plaintiff has not demonstrated that he is excused
from the exhaustion requirement; (2) there is no genuine
dispute of material fact as to the retaliation claim; and (3)
Dean and Maldonado are entitled to qualified immunity.
(Rep. at 12; Doc. No. 41.) Defendants' motion was fully
briefed following Defendants' reply on May 23, 2014 (Doc.
No. 51). On September 16, 2014, Judge Gorenstein issued the
Report, which recommends that the Court grant Defendants'
motion for summary judgment based on Plaintiff's failure
to exhaust. The Report thoroughly examines the record and
the law of exhaustion under the PLRA and concludes that
Plaintiff's admitted failure to exhaust is not excused by any of
the three exceptions recognized in this Circuit. See Hemphill
v. New York, 380 F.3d 680, 686 (2d Cir.2004); (Rep. at 15–
21). On October 2, 2014, Plaintiff timely filed objections to
the Report, asserting that, in fact, all three of the Hemphill

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1

Mateo v. Bristow, Slip Copy (2015)
2015 WL 925933

exceptions apply in this case, and that he is entitled to a
trial on his claims. (Doc. No. 56 (“Objections” or “Objs.”).)
On October 14, 2014, Defendants filed their response to
Plaintiff's Objections. (Doc. No. 57.)

B. Legal Standard
*2 Pursuant to Rule 56(a) of the Federal Rules of Civil
Procedure, summary judgment should be rendered “if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.”Fed.R.Civ.P. 56(a). There is “no genuine
dispute as to any material fact” where (1) the parties agree on
all facts (that is, there are no disputed facts); (2) the parties
disagree on some or all facts, but a reasonable fact-finder
could never accept the nonmoving party's version of the facts
(that is, there are no genuinely disputed facts), see Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986); or (3) the parties disagree on some or all facts,
but even on the nonmoving party's version of the facts, the
moving party would win as a matter of law (that is, none of the
factual disputes are material), see Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
In determining whether a fact is genuinely disputed, the
court “is not to weigh the evidence but is instead required
to view the evidence in the light most favorable to the
party opposing summary judgment, to draw all reasonable
inferences in favor of that party, and to eschew credibility
assessments.”Weyant v. Okst, 101 F.3d 845, 854 (2d
Cir.1996). Nevertheless, to show a genuine dispute, the
nonmoving party must provide “hard evidence,” D'Amico v.
City of N.Y., 132 F.3d 145, 149 (2d Cir.1998), “from which
a reasonable inference in [its] favor may be drawn,”Binder
& Binder PC v. Barnhart, 481 F.3d 141, 148 (2d Cir.2007)
(internal quotation marks omitted). “Conclusory allegations,
conjecture, and speculation,” Kerzer v. Kingly Mfg., 156 F.3d
396, 400 (2d Cir.1998), as well as the existence of a mere
“scintilla of evidence in support of the [nonmoving party's]
position,”Anderson, 477 U.S. at 252, are insufficient to create
a genuinely disputed fact. A moving party is “entitled to
judgment as a matter of law” on an issue if (1) it bears the
burden of proof on the issue and the undisputed facts meet
that burden; or (2) the nonmoving party bears the burden of
proof on the issue and the moving party “ ‘show[s]’—that
is, point[s] out ...—that there is an absence of evidence [in
the record] to support the nonmoving party's [position],”see
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

The standard for reviewing a magistrate judge's report and
recommendation is well settled. When no party objects, the
Court may adopt the report if there is no clear error on the
face of the record. See Adee Motor Cars, LLC v. Amato, 388
F.Supp.2d 250, 253 (S.D.N.Y.2005). A magistrate judge's
decision is “clearly erroneous” only if the district court is “left
with the definite and firm conviction that a mistake has been
committed.”Easley v.. Cromartie, 532 U.S. 234, 242 (2001)
(quoting United States v. United States Gypsum Co., 333 U.S.
364, 395 (1948)). When a party objects, the objections “must
be specific and clearly aimed at particular findings in the
magistrate judge's proposal.”Harden v. LaClaire, No. 07–cv–
4592 (LTS)(JCF), 2008 WL 4735231, at *1 (S .D.N.Y. Oct.
27, 2008).“[I]f the party makes only conclusory or general
objections, or simply reiterates his original arguments, the
Court reviews the Report and Recommendation only for clear
error.”Dawson v. Phillips, No. 03–CV–8632 (RJS)(THK),
2008 WL 818539, at *1 (S.D.N.Y. Mar. 25, 2008) (internal
quotation marks omitted); see also Forsberg v. Always
Consulting, Inc., No. 06–cv–13488 (CS), 2008 WL 5449003,
at *4 (S.D.N.Y. Dec. 31, 2008) (“[E]ven a pro se party's
objections to a Report and Recommendation must be specific
and clearly aimed at particular findings in the magistrate's
proposal, such that no party be allowed a second bite at the
apple by simply relitigating a prior argument.”). However,
“[t]he district judge must determine de novo any part of the
magistrate judge's disposition that has been properly objected
to.”Fed.R.Civ.P. 72(b)(3); 28 U.S.C. § 636(b)(1); see also
Grassia v. Scully, 892 F.2d 16, 19 (2d Cir.1989) (explaining
that § 636(b)(1)“affords the district court broad latitude” in
reviewing the magistrate judge's recommendation).

C. Discussion
*3 For the most part, Plaintiff's Objections are generalized
assertions not aimed at specific findings in the Report, and
simply reiterate the arguments previously made to Judge
Gorenstein. These purported objections are thus improper,
merely seeking a “second bite at the apple.” Thomas v. Astrue,
674 F.Supp.2d 507, 511 (S.D.N.Y.2009). The sole possible
exception—construed liberally—is Plaintiff's contention that
the Report “underestimate[d] the special circumstances of the
day of the events,” insofar as a person of “ordinary firmness”
would be more shaken by being badly mistreated on his or
her wedding day than on an ordinary day, and would find the
ability to file grievances subsequently foreclosed. (Objs.¶¶ 9–
11.) Accordingly, the Court reviews the Report only for clear

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2

Mateo v. Bristow, Slip Copy (2015)
2015 WL 925933

error, with the exception of Judge Gorenstein's conclusion
that no reasonable factfinder could determine that a person of
“ordinary firmness” in Plaintiff's position would have found
the Sing Sing grievance procedures unavailable. As to this
conclusion, the Court has little difficulty concluding on de
novo review that Judge Gorenstein's recommendation was
correct, for substantially the reasons set forth in the Report.
(See Rep. at 15–19.)
In order for the exhaustion requirement to be relieved on
grounds of unavailability, Plaintiff's “fear that disciplinary
actions will be taken against him if he proceeds
with a grievance process must, at a minimum, be
reasonable.”Contino v. City of New York, No. 11–cv–8537
(DLC), 2013 WL 4015816, at *6 (S.D.N.Y. Aug. 7, 2013).
Here, Plaintiff has offered nothing more than “conclusory
assertion[s] that he feared retaliation if he completed the
grievance process,” which is insufficient as a matter of law.
Id . Specifically, Plaintiff does not allege that he was, at any
point, threatened or warned about future grievances. Rather,
he simply argues that Defendants Dean and Maldonado told
him they would prevent him from attending his wedding—
a threat that, within hours, Plaintiff learned to be empty—in
retaliation for past grievances, and that Dean said he would
“feed this guy some crap.” However, Plaintiffs “generalized
fear” of retribution is “insufficient to render the grievance
process unavailable.”Carlson v. Parry, No. 06–cv–6621, WL
5354517, at *9 (W.D.N.Y. Sept. 24, 2013); cf. Mateo v.
O'Connor, No. 10–cv–8426 (LAP), 2012 WL 1075830, at
*8 (S.D.N.Y. Mar. 29, 2012) (“If every plaintiff bringing
a retaliation claim could have the exhaustion requirement
excused by alleging a fear of further retaliation, it would
create a general exception to exhaustion for retaliation
claims.”(quoting Harrison v. Stallone, No. 9:06–cv–902
(LEK) (GJD), 2007 WL 2789473, at *6 (N.D.N.Y. Sept. 24,
2007))).
As to the conduct of Defendants Ramos and Bristow, Plaintiff
asserts that the second incident alleged in his Complaint
—the false report filed by those corrections officers—was
also retaliation for his previous grievances, and has made
him unable to file further grievances. But once again, this
allegation is nothing more than a “conclusory assertion that
he feared retaliation if he completed the grievance process,”
and is thus insufficient. Contino, 2013 WL 4015816, at *6.
Indeed, nowhere does Plaintiff allege that Ramos or Bristow
ever even mentioned grievances or said anything suggestive
of retaliation. Plaintiff even acknowledges that he had never
interacted with either Ramos or Bristow prior to the allegedly

false report, had never filed a grievance against either, and
had never seen Ramos or Bristow with Dean or Maldonado.
(See Deposition of Cesar Mateo, dated Jan. 16, 2014 (attached
as Ex. A to Declaration of Kruti D. Dharia, filed Mar. 28,
(Doc. No. 43)) (“Mateo Dep,”), at 43–44, 18–19, 31.) Clearly,
such “speculation and conjecture” does not create a triable
issue of fact as to whether a reasonable juror could find that a
person of ordinary firmness in Plaintiff's position could find
the grievance procedures unavailable to him. Harlen Assocs.
v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir.2001).
*4 Finally, Plaintiff's contention that the grievance
procedures were unavailable to him due to his reasonable fear
of retaliation is further undermined by his conduct after the
incidents in question. Plaintiff testified during his deposition
that after he wrote letters complaining to prison officials about
Maldonado and Dean, he had a face-to-face meeting with an
official at which both Maldonado and Dean were present, and
that he “spoke about the incident in [their] presence”—but
that he nonetheless still did not file a grievance afterwards.
(Mateo Dep. at 64:11–65:11.) Plaintiff's assertion that he was
chilled from filing a grievance against the corrections officers
even though he was willing to complain through official
channels while in the presence of the very officers about
whom he was complaining strains credulity. Accordingly,
the Court has little difficulty concluding that no reasonable
factfinder could find that the grievance procedure was
unavailable to Defendant in light of this conduct. See Snyder
v. Whittier, 428 F. App'x 89, 91 (2d Cir.2011) (affirming
grant of summary judgment) (“[W]hile Snyder's subjective
fear is ... not dispositive, it is nonetheless relevant that two
hours after the assault, Snyder complained to Corrections
Officer Funnye, who Snyder testified was friendly with [the
alleged assaulting officer].”). In fact, even after filing this
very lawsuit, Plaintiff never attempted to file a grievance,
and was apparently unable to “bring [himself] to do it.”
(Mateo Dep. at 53:3–11.) Surely the grievance process cannot
be said to be unavailable because of a reasonable threat of
retaliation where Plaintiff filed a lawsuit regarding the very
same conduct. See Mateo v. O'Connor, 2012 WL 1075830, at
*8 (“Mateo's argument is again undermined by his continued
filing of grievances and lawsuits during and after the period in
question.”). Thus, upon a de novo review of Plaintiff's claims
concerning the unavailability of administrative procedures,
the Court concludes that no reasonable juror could find that a
person of ordinary firmness in Plaintiff's position would find
the grievance procedure unavailable.

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3

Mateo v. Bristow, Slip Copy (2015)
2015 WL 925933

Finally, the Court has reviewed the rest of Judge Gorenstein's
recommendation and the record, and concludes that the
Report is not otherwise clearly erroneous. To the contrary, the
Court finds the Report to be thorough and well-reasoned, and
would adopt it even upon a de novo review. Accordingly, the
Court adopts the remainder of the Report in its entirety.

D. Conclusion
For the foregoing reasons, the Court adopts the Report in its
entirety, and HEREBY ORDERS THAT Defendants' motion
for summary judgment is GRANTED. Additionally, for the
reasons set forth above, the Court certifies pursuant to 28
End of Document

U.S.C. § 1915(a)(3) that any appeal from this Order would
not be taken in good faith. Accordingly, IT IS FURTHER
ORDERED THAT in forma pauperis status is denied for the
purpose of an appeal. See Coppedge v. United States, 369 U.S.
438, 444–45 (1962). The Clerk of the Court is respectfully
directed to terminate the motion pending at docket entry
number 40 and close this case.

*5 SO ORDERED.
All Citations
Slip Copy, 2015 WL 925933

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© 2015 Thomson Reuters. No claim to original U.S. Government Works.

4

Rivera v. Dianardo, Not Reported in F.Supp.2d (2013)
2013 WL 1975437

2013 WL 1975437
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Danny RIVERA, Plaintiff,
v.
C.O. P. DIANARDO, Defendant.
No. 10–CV–1500 (NAM/CFH).

|

April 16, 2013.

Attorneys and Law Firms
Danny Rivera, Auburn, NY, pro se.
Hon. Eric T. Schneiderman, Attorney General for the State
of New York, DAvid L. Cochran, Esq., Assistant Attorney
General, of Counsel, Albany, NY, for Defendant.

REPORT–RECOMMENDATION AND ORDER 1
1

This matter was referred to the undersigned for report
and recommendation pursuant to 28 U.S.C. § 636(b) and
N.D.N.Y.L.R. 72.3(c).

v. Artuz, 76 F.3d 483, 486 (2d Cir.1996). Dianardo provided
notice in his motion papers as required by the Second Circuit
and as normally done by the office of defendants' counsel.
Id.; Dkt. No. 27–1.Further, the Court provided such notice
by mail. Dkt. No. 30.Despite the notices and the extension of
time, Rivera failed to respond.
“The fact that there has been no response to a summary
judgment motion does not ... mean that the motion is to be
granted automatically.”Champion, 76 F.3d at 486. Even in
the absence of a response, defendants are entitled to judgment
only if the material facts demonstrate their entitlement to
judgment as a matter of law. Id.; FED. R. CIV. P. 56(c).“A
verified complaint is to be treated as an affidavit ... and
therefore will be considered in determining whether material
issues of fact exist....”Colon v. Coughlin, 58 F.3d 865, 872
(2d Cir.1995) (citations omitted). The facts set forth in
defendant's Rule 7.1 Statement of Material Facts (Dkt. No.
18–2) [hereinafter “Def.'s Statement”] are accepted as true
as to those facts that are not disputed in Rivera's complaint.
N.D.N.Y.L.R. 7.1(a)(3) (“The Court shall deem admitted any
properly supported facts set forth in the Statement of Facts
that the opposing party does not specifically controvert.”)
(emphasis omitted).

CHRISTIAN F. HUMMEL, United States Magistrate Judge.

II. Background

*1 Plaintiff pro se Danny Rivera (“Rivera”), an inmate
currently in the custody of the New York State Department of
Corrections and Community Supervision (“DOCCS”), brings
this action against Dianardo, a DOCCS employee, alleging
violations of the Civil Rights Act, 42 U.S.C. § 1983. Compl.
(Dkt. No. 1). Rivera contends that Dianardo deprived him
of his constitutional rights under the Fourteenth Amendment.
Id. Presently pending is defendants' motion for summary
judgment pursuant to Fed.R.Civ.P. 56.Dkt. No. 27.Rivera
does not oppose this motion. For the reasons which follow, it
is recommended that Dianardo's motion be granted.

At all relevant times, Rivera was an inmate at the Auburn
Correctional Facility (“Auburn”). Def.'s Statement ¶¶ 2–3;
Compl. at 2–3.

I. Failure to Respond
Rivera did not oppose defendant's motion although the
Court notified him of his response deadline then sua sponte
granted him an extension to file a response. Dkt. Nos. 28,
30.“Summary judgment should not be entered by default
against a pro se plaintiff who has not been given any notice
that failure to respond will be deemed a default.”Champion

On November 29, 2010, Rivera filed the complaint to this
action, alleging that defendant Dianardo, a correction officer,
has “racist issue[s]” with the fact that Rivera is Muslim.
Compl. at 4; see Def.'s Statement ¶¶ 1, 3. Rivera alleged that
because of his religion, Dianardo (1) “all the time” called him
by inappropriate names, (2) denied him three meals, and (3)
denied him programs. Compl. at 4.; see Def.'s Statement % 1.
Rivera claims that he filed two grievances against Dianardo as
well as written complaints to a Superintendent. Compl. at 2.
As of October 16, 2012, DOCCS's Inmate Grievance Program
records show that Rivera never appealed any grievances.
Def.'s Statement ¶ 4; Hale Aff. (Dkt. No. 27–3) ¶¶ 3–4; Dkt.
No. 27–4.
*2 By Decision and Order, Rivera's Eighth Amendment
claim regarding denied meals was dismissed without
prejudice and Fourteenth Amendment claim regarding denied

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1

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2013 WL 1975437

programming was dismissed with prejudice. Def.'s Statement
% 3; Dkt. No. 5 at 7. The only remaining claim is Rivera's
Fourteenth Amendment equal protection claim alleging that
Dianardo discriminated against him on account of his
religion by calling him names and denying him meals and
programming.Dkt. No. 5 at 4.

III. Discussion
Rivera contends that Dianardo violated his equal protection
rights under the Fourteenth Amendment. Dianardo seeks
dismissal of Rivera's complaint for Rivera's failure to exhaust
his administrative remedies.

A. Legal Standard
A motion for summary judgment may be granted if there is no
genuine issue as to any material fact if supported by affidavits
or other suitable evidence and the moving party is entitled to
judgment as a matter of law. The moving party has the burden
to show the absence of disputed material facts by informing
the court of portions of pleadings, depositions, and affidavits
which support the motion. FED. R. CIV. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts are material
if they may affect the outcome of the case as determined by
substantive law. Anderson v. Liberty Lobby, 477 U.S. 242,
248 (1986). All ambiguities are resolved and all reasonable
inferences are drawn in favor of the non-moving party. Skubel
v. Fuoroli, 113 F.3d 330, 334 (2d Cir.1997).
The party opposing the motion must set forth facts showing
that there is a genuine issue for trial. The non-moving party
must do more than merely show that there is some doubt or
speculation as to the true nature of the facts.Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
It must be apparent that no rational finder of fact could find in
favor of the non-moving party for a court to grant a motion for
summary judgment. Gallo v. Prudential Residential Servs.,
22 F.3d 1219, 1223–24 (2d Cir.1994); Graham v. Lewinski,
848 F.2d 342, 344 (2d Cir.1988).
When, as here, a party seeks judgment against a pro se litigant,
a court must afford the non-movant special solicitude. See
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d
Cir.2006). As the Second Circuit has stated,
[t]here are many cases in which we have said that a pro se
litigant is entitled to “special solicitude,” ... that a pro se
litigant's submissions must be construed “liberally,”... and

that such submissions must be read to raise the strongest
arguments that they “suggest,”.... At the same time, our
cases have also indicated that we cannot read into pro se
submissions claims that are not “consistent” with the pro se
litigant's allegations, ... or arguments that the submissions
themselves do not “suggest,” ... that we should not “excuse
frivolous or vexatious filings by pro se litigants,”... and that
pro se status “does not exempt a party from compliance
with relevant rules of procedural and substantive law....”
*3 Id.(citations and footnote omitted); see also Sealed
Plaintiff v. Sealed Defendant # 1, 537 F.3d 185, 191–92 (2d
Cir.2008) (“On occasions too numerous to count, we have
reminded district courts that ‘when [a] plaintiff proceeds pro
se,... a court is obliged to construe his pleadings liberally.’
“ (citations omitted)). However, the mere existence of some
alleged factual dispute between the parties will not defeat an
otherwise properly supported motion; the requirement is that
there be no genuine issue of material fact.Anderson, 477 U.S.
at 247–48.

B. Failure to Exhaust
Under 42 U.S.C. § 1997e(a), an inmate must exhaust
all administrative remedies prior to bringing any suits
challenging prison conditions, including federal civil rights
cases. Porter v.. Nussle, 534 U.S. 516, 524 (2002); see also
Woodford v. Ngo, 548 U.S. 81, 83 (2006). This exhaustion
requirement applies to all prison condition claims. Porter, 534
U.S. at 532. “[A]ny deprivation that does not affect the fact or
duration of a prisoner's overall confinement is necessarily a
condition of that confinement.”Jenkins v. Haubert, 179 F.3d
19, 28 (2d Cir.1999). The exhaustion requirement also applies
even if the administrative grievance process does not provide
for all the relief requested by the inmate. Porter, 534 U.S. at
524.
Exhaustion for an inmate in DOCCS custody is
generally achieved through the Inmate Grievance Program
(“IGP”).SeeN.Y. COMP. CODES R. & REGS. tit. 7, § 701.1,
et seq. (2012). Allegations of staff harassment are subject
to an expedited procedure whereupon the complaint is first
reviewed by the Superintendent and only if it is not a bona
fide claim will it be returned to the IGP for normal processing.
N.Y. COMP. CODES. R & REGS. tit. 7, § 701.8 (2012).
Included within the IGP's exhaustion requirement is the
prerequisite that the inmate file an appeal with Central Office
Review Committee (“CORC”) and receive a response from
CORC prior to filing a federal lawsuit. Torres v. Carry, 672
F.Supp.2d 338, 344 (S.D.N.Y.2009); see alsoN.Y. COMP.

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2013 WL 1975437

CODES R. & REGS. tit. 7 § 701.5(d)(2)(ii) (2012) (“The
CORC shall review each appeal, render a decision on the
grievance, and transmit its decision ... within 30 calendar
days”). Disagreement with the superintendent's decision in
the expedited review also requires an appeal to CORC. N.Y.
COMP. CODES. R & REGS. tit. 7, § 701.8(g)-(h); see
also Espinal v. Goord, 588 F.3d 119, 125 (2d Cir.2009)
(explaining IGP and the expedited procedure for harassment
claims and its appeal mechanism through CORC). Exhaustion
must precede filing a lawsuit. Neal v. Goord, 267 F.3d 116,
122 (2d Cir.2001) (“Subsequent exhaustion after suit is filed
therefore is insufficient.”), abrogated in part on other grounds
by Porter, 534 U.S. 516.
While the Supreme Court has deemed exhaustion mandatory,
the Second Circuit has recognized that “certain caveats
apply.” Ruggiero v. Cnty. of Orange, 467 F.3d 170, 175 (2d
Cir.2006) (citing Giano v. Goord, 380 F.3d 670, 677 (2d
Cir.2004)). The failure to exhaust may be excused in limited
circumstances.
*4 In determining whether such an
exception is applicable, a district court
must apply a three-part test: First,
the court must determine whether
administrative remedies in fact were
available to the prisoner. Second, if
such remedies were available, the
court must determine whether the
defendants' own actions inhibited the
inmate's exhaustion of administrative
remedies, thereby requiring that one or
more of them be equitably estopped
from raising the failure to exhaust as
a defense. Finally, if administrative
remedies were available and the
defendants are not estopped, the court
must determine whether any special
circumstances justify the prisoner's
failure to comply with administrative
procedural requirements.
Gayle v. Benware, 716 F.Supp.2d 293, 298 (S.D.N.Y.2010)
(internal citations omitted); see generally Hemphill v. New
York, 380 F.3d 680, 686 (2d Cir.2004) (articulating above
test as the appropriate method for excusing failure to
exhaust given the present state of all Second Circuit
opinions).“Unavailability of administrative remedies ... is an
objective [test]: that is, would a similarly situated individual
of ordinary firmness have deemed them unavailable.”Kasiem

v. Switz, 756 F.Supp.2d 570, 576–77 (S.D.N.Y.2010)
(internal quotation marks and citations omitted). Estoppel
occurs when “an inmate reasonably understands that pursuing
a grievance through the administrative process will be
futile or impossible ... [as evidenced by] prison officials'
threats, beatings, ... denials of grievance forms, or by other
misconduct deterring [the inmate] from fulfilling the requisite
procedure.”Id. at 577 (internal quotation marks and citations
omitted). If an inmate claims estoppel and continues to file
complaints and grievances, the exception is inapplicable.
Id. Special circumstances exist when an inmate's failure to
comply can be justified. Id. (citations omitted). Justification
is found “by looking at the circumstances which might
understandably lead usually uncounselled prisoners to fail to
grieve in the normally required way.”Giano v. Goord, 380
F.3d 670, 678 (2d Cir.2004) (citations omitted).
In this case, DOCCS records do not show any grievances
which were appealed regarding Rivera's meals and
programming or complaints surrounding Dianardo's alleged
discriminatory conduct. In Rivera's complaint, he contends
that he filed grievances against Dianardo and a written
complaint to the Superintendent. However, Rivera fails to
respond to Dianardo's affirmative defense of exhaustion
or originally include a copy of the complaint, grievance,
or subsequent appeals. Rivera also fails to proffer that he
ever attempted to engage in administrative appeals. Thus,
Rivera's conclusory and unsupported claims are insufficient
to defeat the computer print outs generated by the grievance
program. Further, Rivera fails to contend that he was unaware
of the grievance procedures, that they were unavailable to
him, or that special circumstances existed to excuse his
failure to exhaust. Rivera has therefore failed to exhaust his
administrative remedies.
*5 “[W]here a prisoner has failed to satisfy the exhaustion
requirement ... [t]he Second Circuit has held ... that
dismissal with prejudice, when remedies are no longer
available, is required in the absence of any justification
for not pursuing such remedies.”Bridgeforth v. Barlett, 686
F.Supp.2d 238, 239–40 (W.D.N.Y.2010) (internal quotation
marks omitted) (citing Giano v. Goord, 380 F.3d 670, 675
(2d Cir.2004) (quoting Berry v. Kerik, 366 F.3d 85, 87–88
(2d Cir.2004)). Rivera had twenty-one calendar days from
the alleged wrongful occurrence to file a grievance, N.Y.
COMP. CODES. R & REGS. tit. 7, §§ 701.5(a), 701.8(a)
(2012), and seven calendar days from receiving either the
Inmate Grievance Resolution Committee's (“IGRC”) or the
superintendent's response to appeal that decision, id. §§

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3

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2013 WL 1975437

701.5(c), 701.8(h). The lapse in time between Rivera filing
the complaint on November 29, 2010 and the IGP records
evidencing the lack of any appealed grievances as of October
16, 2012, shows that administrative remedies are no longer
available to Rivera. Moreover, as previously discussed,
Rivera has not alleged any facts excusing his failure to
exhaust. Rodriguez v. Westchester Cnty. Jail Corr. Dep't, 372
F.3d 485, 487 (2d Cir.2004) (“a prisoner's complaint should
be dismissed with prejudice where administrative remedies
were available for a reasonable length of time and were not
exhausted ‘in the absence of any justification.’ “ (citing Berry,
366 F.3d at 88)). As such, Rivera's suit should be dismissed
with prejudice.
Accordingly, Dianardo's motion on this ground should be
granted.

For the reasons stated above, it is hereby RECOMMENDED
that Dianardo's motion for summary judgment (Dkt. No.
27) be GRANTED and judgment be entered in favor of
Dianardo and the complaint (Dkt. No. 1) be DISMISSED
with prejudice.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may
lodge written objections to the foregoing report. Such
objections shall be filed with the Clerk of the Court.
FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE
REVIEW.Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993);
Small v. Sec'y of HHS, 892 F.2d 15 (2d Cir.1989); 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

All Citations
Not Reported in F.Supp.2d, 2013 WL 1975437

IV. Conclusion

End of Document

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4

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2013 WL 1975435

2013 WL 1975435
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Danny RIVERA, Plaintiff,
v.
C.O. P. DIANARDO, Defendant.
No. 9:10–CV–1500 (NAM/
CFH). | May 13, 2013.

duly filed on the 16th day of April 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 ReportRecommendation, and no
objections submitted thereto, it is
ORDERED that:
1. The Report–Recommendation is hereby adopted in its
entirety.

Attorneys and Law Firms
Danny Rivera, Auburn, NY, pro se.
Hon. Eric T. Schneiderman, Attorney General for the
Assistant Attorney General, State of New York, The capitol,
David L. Cochran, Esq., of Counsel, Albany, NY, for
Defendant.

2. The defendants' motion for summary judgment (Dkt.
No. 27) is granted, and this entire action is dismissed with
prejudice.
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.

ORDER
NORMAN A. MORDUE, District Judge.
*1 The above matter comes to me following a Report–
Recommendation by Magistrate Judge Christian F. Hummel
End of Document

All Citations
Not Reported in F.Supp.2d, 2013 WL 1975435

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1

Rogoz v. City of Hartford, --- F.3d ---- (2015)
2015 WL 4716570

2015 WL 4716570
Only the Westlaw citation is currently available.
United States Court of Appeals,
Second Circuit.
David ROGOZ, Plaintiff–Appellant,
v.
CITY OF HARTFORD; Chief Daryl K. Roberts,
in his individual and official capacity; Detective
G. Watson, in his individual and official capacity;
Detective Rivera, in his individual and official
capacity; Officer George Water, in his individual
and official capacity; Officer James Rutkauski, in
his individual and official capacity; Officer Brandon
Flores, in his individual and official capacity; Officer
Steven J. Pileski, in his individual and official
capacity; Officer Cesar A. Beiros, in his individual
and official capacity, Defendants–Appellees. *
*

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

Docket No. 14–0876. | Argued: April
22, 2015. | Decided: Aug. 10, 2015.
Appeal from a judgment entered in the United States District
Court for the District of Connecticut, Vanessa L. Bryant,
Judge, dismissing, on summary judgment, plaintiff's claims
brought principally against defendant police officers under
42 U.S.C. § 1983 for use of excessive force in the course of
arrest, in breaking one of plaintiff's ribs and breaking his spine
in two places after he had unresistingly complied with orders
to lie on the ground face down with his hands behind his back.
See Rogoz v. City of Hartford, No. 3:11–CV–00500, 2013 WL
3816580 (D.Conn. July 22, 2013).
Affirmed in part, vacated and remanded in part.
Attorneys and Law Firms
A. Paul Spinella, Hartford, Connecticut (Spinella &
Associates, Hartford, Connecticut, on the brief), for Plaintiff–
Appellant.
Nathalie Feola–Guerrieri, Senior Assistant Corporation
Counsel, Hartford, Connecticut, for Defendant–Appellee
City of Hartford.

William J. Melley III, Hartford, Connecticut, for Defendants–
Appellees Watson, Rivera, Water, Rutkauski, Flores, Pileski,
and Beiros.
Before KEARSE, PARKER, and WESLEY, Circuit Judges.
Opinion
KEARSE, Circuit Judge:
*1 Plaintiff David Rogoz appeals from a final judgment
entered in the United States District Court for the District
of Connecticut, Vanessa L. Bryant, Judge, summarily
dismissing all of his claims against defendants City of
Hartford (the “City”), individual detectives and officers in
the City's Police Department (together the “police officer
defendants”), and the City's Chief of Police, arising out of
Rogoz's arrest in May 2009, during which, the police officer
defendants concede for purposes of this appeal, Rogoz's rib
was broken and his spine was broken in two places. On
appeal, Rogoz seeks reinstatement only of (a) his claim under
42 U.S.C. § 1983 against defendant Detective G. Watson for
use of excessive force, (b) his claims under § 1983 against
the other defendant police detective and five defendant police
officers (collectively the “other officers” or the “other police
officers”) for failure to intervene to prevent Watson's use
of excessive force, and (c) his claims under state law that
are related to his federal claims of excessive force. Rogoz
contends principally that, in granting summary judgment in
favor of Watson and the other officers on those claims, the
district court, which found that Watson used only reasonable
force and was entitled to qualified immunity, see Rogoz v.
City of Hartford, No. 3:11–CV–00500, 2013 WL 3816580
(D.Conn. July 22, 2013) (“D.Ct.Op.”), erred in failing to
view the record in the light most favorable to Rogoz as
the party opposing summary judgment. For the reasons that
follow, we agree that summary judgment dismissing the §
1983 claim against Watson for use of excessive force was
error; we vacate so much of the judgment as dismissed that
claim and the analogous state constitutional claim and as
declined to exercise supplemental jurisdiction over Rogoz's
state-law claims relating to the alleged use of excessive force
by Watson, and we remand for further proceedings with
respect to those claims. We affirm the dismissal of Rogoz's
claims against the other police officers.

I. BACKGROUND

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Rogoz v. City of Hartford, --- F.3d ---- (2015)
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Most of the facts are undisputed; and certain other facts have
been admitted by the police officer defendants for the purpose
of defending summary judgment on this appeal.

A. The Events
It is undisputed that on May 8, 2009, shortly after 11:00
a.m., Rogoz drove to the vicinity of Lawrence Street in
Hartford, Connecticut (hereafter the “Lawrence Street area”),
“a hot spot area for illegal drug activity,”D.Ct. Op., 2013
WL 3816580, at *3 (internal quotation marks omitted), and,
through the window of his vehicle, bought $50 worth of
heroin. Rogoz then turned onto a one-way street and pulled
over to the curb. A red Honda pulled in directly behind
him. Rogoz promptly drove on and pulled over to the curb
farther down the street. The red Honda then pulled in front
of Rogoz, and a man exited. In an attempt to get away from
the Honda man, Rogoz began to back his car up the oneway street, and the man began running toward him. When
Rogoz saw a car coming behind him, he ceased backing up;
drove forward over the curb and onto the sidewalk to pass the
Honda man before reentering the roadway; and drove off at
an unreasonably high rate of speed. He eventually reached a
highway, the scene of his arrest.
*2 Rogoz's brief on appeal describes the events after
he reached the highway in flight from the Honda man,
and the police officer defendants have “no material
disagreements” (Brief on appeal for defendants-appellees
Watson and the other officers (“Watson brief on appeal”) at
5) with the following description:
[After] Rogoz ... fled through the City of Hartford, [he]
eventually dr[ove] onto Route 2 eastbound; ...
Rogoz did not realize that he was being pursued by police
vehicles until he saw the police lights and heard the
sirens; ...
Upon this realization, Rogoz immediately pulled over onto
the shoulder of the highway; ...
When Rogoz stopped the vehicle, Rogoz was directed by
an officer to exit the vehicle with his hands up, and he
complied;...
Rogoz was ordered by the officers to lay face down on the
ground with his hands behind his back, and he complied;...
Rogoz complied with each of the officers' commands, and
did not resist in any way;...

Rogoz was lying face down on the ground, with his hands
behind his back, awaiting to be handcuffed, when one of
the officers, believed to be George Watson, jumped onto
Rogoz's back, landing knees first....The force of the impact
fractured one of Rogoz's ribs and fractured his spine in two
places....
(Rogoz brief on appeal at 5–6 (internal quotation marks
omitted) (emphases ours).) Watson and the other officers state
in their brief on appeal that they “accept for the purpose of this
Motion for Summary Judgment Plaintiff's characterization
that Detective George Watson jumped on Mr. Rogoz's back,
landing knees first, and fracturing Mr. Rogoz's ribs and
spine.” (Watson brief on appeal at 5–6 (emphases added).)

B. The Present Action and Defendants' Motion for
Summary Judgment
Rogoz was charged with three state-law crimes: possession
of narcotics, reckless driving, and disobeying an officer's
signal to stop in order to escape. He pleaded guilty to the
narcotics charge and was fined $300; the other two charges
were dismissed.
Rogoz commenced the present § 1983 action in 2011
against the City, its Chief of Police, and the police officer
defendants, asserting various claims under, inter alia, the
Fourth Amendment and state law in connection with his
arrest, including false arrest, false imprisonment, and use
of excessive force. To the extent pertinent to this appeal,
which pursues only the excessive-force-related claims against
the police officer defendants and the City, the complaint
included allegations that, at the Lawrence Street area, the
man who exited the red Honda had “charged toward the
Plaintiff's vehicle” and “failed to identify himself as a police
officer in any respect ” (Complaint ¶ 15 (emphasis added));
that Rogoz had fled the area “[b]elieving himself to be in
imminent danger” (id. ¶ 16); that when Rogoz became aware
on the highway that he was being pursued by police officers,
he immediately stopped his vehicle on the shoulder of the
highway (see id. ¶¶ 17–18); and that he “complied with the
Defendant Officers' commands to show his hands, exit his
vehicle and lie face down with his hands behind his back,
offering no resistance of any sort ” (id. ¶ 19 (emphasis
added)). Then,
*3 [w]hile the Plaintiff was on the ground, the Defendant
Officers subjected his upper back to severe physical
assault, causing him to suffer excruciating pain ....

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Rogoz v. City of Hartford, --- F.3d ---- (2015)
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21. After the Plaintiff was placed in custody, he requested
but did not receive prompt medical care for two days.
22. Upon finally receiving medical care, the Plaintiff was
informed that he had sustained severe muscular strain and
multiple fractures to his back and ribs.

12. While I was lying on the ground, one or two of
the defendant officers jumped onto me with their knees,
landing on my back.
13. The force of the impact fractured one of my ribs and
fractured my spine in two places, and my face was slammed
into the ground.

(Complaint ¶¶ 20–22.)
In his deposition, Rogoz testified that when he was in the
Lawrence Street area he had no idea who the man who exited
the Honda was. “He never showed nothing, you know. I had
no idea who it was....” (Deposition of David William Rogoz
(“Rogoz Dep.”) at 86; see also id. at 67 (“Q. Do you recall
any gesture from the person that was in this Honda at all to
you, any arm movement, anything like that? A. No, no.”).)
Rogoz testified, “[i]t's not the best area over there” (id. at 67–
68), and that he “was trying to get out of there.... I just didn't
know what was going on. I was afraid” (id. at 65).
As to his arrest, Rogoz testified that when he had lain face
down on the ground as instructed,
that was when ... someone came up
on me, and it was boom. Someone
like threw all their weight on me. I
could feel like their knees in my back
smashed me, smashed my face into the
pavement.”
(Rogoz Dep. at 79.) “It felt like he like jumped, you know....
[I]t seemed like, you know, he just like jumped on me is what
it felt like, just hit so hard.”(Id. at 80.) “It seemed like he ran
up and jumped with his weight onto my back....” (Id. at 81.)
The officer who jumped on Rogoz's back then handcuffed
him; since a police report said that Rogoz was handcuffed by
Watson, Rogoz inferred that the officer who jumped on his
back was Watson. (See id. at 84–85.)
In an affidavit opposing defendants' motion for summary
judgment, Rogoz's description of the scene of his arrest on the
highway was similar to the allegations in his complaint:
[w]hen I saw the [police] lights I immediately pulled over
onto the shoulder of the highway.
11. After I stopped, the police officers ordered me to show
my hands, to exit the vehicle and to lie face down with my
hands behind my back, and I complied with their directions,
and did not resist in any way.

(Affidavit of David Rogoz dated December 24, 2012 (“Rogoz
Aff.”), ¶¶ 10–13.) Rogoz said that “although [he] was in
horrible pain from [his] injuries [he] initially did not ask for
medical treatment because [he] was afraid of the police.”(Id.
¶ 14.)
Defendants' motion for summary judgment dismissing
Rogoz's excessive force claims was accompanied by, inter
alia, a Statement pursuant to Local Rule 56(a)1 of the
facts defendants contended were undisputed (“Defendants'
Rule 56(a)1 Statement”), by documents including a police
incident report filed by Watson on the date of Rogoz's arrest
(“Watson Report” or “Report”), and by a memorandum of
law (“Defendants' Summary Judgment Memorandum”). In
his Report, Watson stated that he had been surveilling the
Lawrence Street area and observed what appeared to be a
purchase of narcotics by Rogoz, followed by Rogoz's parking
nearby at “a common location where drug users pull over
and ingest the recently purchased drugs.”(Watson Report at
2.) Watson stated, “I parked my vehicle in front of Rogoz
and approached the passenger side of his vehicle. I had
my badge displayed while verbally identifying myself as
Hartford Police.”(Id.) The Report contains a description of
Rogoz's ensuing flight that is similar, although not identical,
to Rogoz's own description. With regard to Rogoz's arrest on
the highway, Watson stated in the Report that, after being
“stopped by marked Hartford police vehicles[,].... Rogoz was
taken out at gun point and laid onto the ground at which time
I approached and handcuffed him.”(Id.) The Report made no
mention of any application of force.
*4 In their Rule 56(a)1 Statement, defendants described
Rogoz's actions in the Lawrence Street area much as those
actions had been recounted by Rogoz and the Watson
Report. Defendants stated that after Watson exited the red
Honda and “approach[ed] Rogoz's” car, “Rogoz tried to
get away” (Defendants' Rule 56(a)1 Statement ¶¶ 7–8); but
their Rule 56(a)1 Statement did not assert that Watson had
identified himself to Rogoz as a police officer. Defendants'
Rule 56(a)1 Statement stated that on the highway, Rogoz had
complied with officers' directions to exit his car and to lie face

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3

Rogoz v. City of Hartford, --- F.3d ---- (2015)
2015 WL 4716570

down on the ground with his hands behind his back (see id.
¶¶ 16–17); it made no mention of any injury to Rogoz's back.
In their accompanying memorandum of law, defendants
argued that “[i]rrespective of whether Detective Watson,”
as Rogoz alleged, “ ‘jumped’ on him with his weight and
knee placed on the plaintiff's back which caused him to
suffer a back injury,” Watson was entitled to summary
judgment on the merits because “it was objectively reasonable
for Detective Watson to have used force” (Defendants'
Summary Judgment Memorandum at 14) on the basis that
Rogoz was charged with serious crimes (see id. at 16),
“posed an immediate threat to the safety of the officers
or others” (id.), and had “attempted to evade arrest by
flight” (id. at 17). Defendants also argued that “[e]ven
assuming plaintiff's version of events is true [for purposes of]
summary judgment,” Watson would be entitled to summary
judgment on the basis of qualified immunity because Rogoz
did not have “a clearly established right not to be subject to
having the force employed by Detective Watson to effectuate
his arrest under these circumstances presented to Detective
Watson.”(Id. at 18 n. 1.) And defendants argued that the
police officer defendants other than Watson were entitled to
summary judgment because Rogoz was unable to show any
“personal involvement” in the use of force against Rogoz
“by any of the defendant officers[ ] aside from Detective
Watson.”(Id. at 11.)
In his affidavit opposing defendants' summary judgment
motion, Rogoz denied having knowingly fled from, or having
intended to flee from, law enforcement. He stated:
4. I did not know that th[e red Honda that pulled in front
of me in the Lawrence Street area] was a City of Hartford
police vehicle, or that the vehicle contained police officers.
5. One of the occupants quickly exited the vehicle and ran
toward the passenger door of my car.
6. I did not know that the person running toward my car
was a police officer, and this person did not identify himself
as an officer in any way.
(Rogoz Aff. ¶¶ 4–6 (emphases added).)

C. The Decision of the District Court
The district court granted the motion to dismiss Rogoz's
excessive force claims, adopting the arguments put forth
by defendants. SeeD.Ct. Op., 2013 WL 3816580, at *12.
The court rejected Rogoz's contention that Watson's use

of force was unreasonable because Rogoz was unaware in
the Lawrence Street area that Watson was a police officer,
and that Rogoz had fled only from an unidentified man
who he reasonably suspected was threatening him, not from
law enforcement officials. Noting that “Watson recounted in
his Report that he ‘approached the passenger side of [the]
vehicle’ with his badge displayed and verbally identified
himself as Hartford Police,”id. at *3, the court found it
“eminently reasonable for Detective Watson to believe ... that
Rogoz had fled after Watson had identified himself as a police
officer verbally and by displaying his badge,”id. at *14. The
court found that “[a]lthough Rogoz had complied with the
officers' orders to pull over [on the highway], exit his vehicle,
and lie face down on the ground, he did so only after having
failed to obey Watson's orders to stop [i]n [the Lawrence
Street area]....”Id. at *15. The court reasoned that,
*5 [b]ased on the totality of the
circumstances known to Detective
Watson at the time, it was reasonable
for Watson to conclude that quickly
transferring his weight to Mr. Rogoz's
back and ribs—after having followed
Mr. Rogoz's urgent flight from law
enforcement through Hartford's streets
—in order to assure that Rogoz did
not resume this flight, to ensure the
safety of Mr. Rogoz, the officers on
the scene, and other drivers on the side
of a busy highway, and to effectuate
Rogoz's arrest would not violate Mr.
Rogoz's right to be free from the
use of excessive force. [S]ome degree
of physical force is incident, and
even necessary, to making an arrest,
especially in situations where the
suspect has previously refused to
comply with the officers' orders....
Here, Rogoz had actively resisted
Watson's attempt to apprehend him
after he had purchased heroin. It was
reasonable for Watson to employ some
force against Rogoz after Rogoz's
traffic stop given that Watson had
witnessed first-hand Rogoz's earlier
volatility in response to his attempt to
stop Rogoz.
Id. (internal quotation marks omitted) (emphases ours).

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The district court also concluded that Watson was entitled to
qualified immunity. It stated that
Watson ... reported that as he
approached Rogoz's vehicle he
displayed his badge and verbally
identified himself as a police officer.
While Rogoz disputes that Watson
provided identification, his dispute is
tempered by the urgency with which
Rogoz undertook to flee a perceived
dangerous situation and his inability to
recall any details as to the individual
who approached his car. Given the
circumstances, while it was perhaps
reasonable for Rogoz to have believed
that Watson was not a police officer,
it was also reasonable for Watson to
believe that Rogoz had attempted to
flee from law enforcement by way
of reckless driving and to respond
accordingly. Thus, even if Watson's
use of force was constitutionally
excessive, it was based heavily on a
reasonable mistake of fact and thus
merits qualified immunity.
D.Ct. Op., 2013 WL 3816580, at *16 (“not” emphasized in
original; other emphases added).
The court also stated that it was not clearly established law
“that a use of force to subdue an individual in circumstances
akin to those in this case, after the individual has fled from
police but prior to the individual being placed in handcuffs
on the side of a highway, would violate such an individual's
Fourth Amendment rights.”Id. at *17 (emphases in original).
It stated that
while the right to be free from the use
of excessive force under the Fourth
Amendment is clearly established,
Green [v. Montgomery], 219 F.3d
[52,] 59 [ (2d. Cir.2000) ], the right
of a potential felon who has just
engaged in a drug transaction and has
fled from law enforcement to be free
from an officer's forceful placement of
his weight on such suspect's back to
effectuate the suspect's arrest and to

keep him from fleeing is much less
clearly defined.
*6 D.Ct. Op., 2013 WL 3816580, at *17 (citing Davis v.
Callaway, 3:05–CV–00127, 2007 WL 1079988 20 (D.Conn.
Apr. 9, 2007) (emphases ours)).
“On the other hand,” the district court noted, “courts often find
to be excessive similar force used against an arrestee ...where
the arrestee offered no resistance.” D.Ct. Op., 2013 WL
3816580, at *17 (emphases added).See, e.g., id.(noting that
summary judgment has been found inappropriate in a case
involving the use of “gratuitous force beyond what [wa]s
necessary to subdue” (internal quotation marks omitted)).
The court granted summary judgment dismissing Rogoz's
failure-to-intercede claims against the police officers other
than Watson on the ground that Rogoz had presented
no evidence that the other officers had an opportunity to
intervene. It noted that Rogoz claimed that Watson ran
and jumped on his back, a single instantaneous application
of force, and it concluded that no reasonable jury could
“conclude that the officers on the scene of Rogoz's arrest
had a realistic opportunity to prevent the injuries he allegedly
sustained.”Id. at *19 (internal quotation marks omitted).
Having concluded that Rogoz's federal excessive-forcerelated claims against all of the police officer defendants
lacked merit, the court dismissed on the merits
Rogoz's analogous state-law claims, declined to exercise
supplemental jurisdiction over other state-law claims, and
found it unnecessary to address his state-law claims
against the City for negligent infliction of harm or for
indemnification, seeConn. Gen. Stats. §§ 52–557n, 7–465.
SeeD.Ct. Op., 2013 WL 3816580, at *18, *24–*25.

II. DISCUSSION
On appeal, Rogoz contends principally that the district court
failed to view the record in the light most favorable to him
and to draw all reasonable inferences in his favor, and thereby
erred in ruling (a) that Watson's jumping on Rogoz's back
with sufficient force to break his rib and break his spine in two
places was reasonable as a matter of law, (b) that Watson was
entitled to qualified immunity as a matter of law with respect
to the use of such force, and (c) that the other police officer
defendants had no reasonable opportunity to prevent the use
of excessive force by Watson. For the reasons that follow,

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we conclude that the district court erred in granting summary
judgment in favor of Watson.

A. Summary Judgment Principles
“A motion for summary judgment may properly be granted—
and the grant of summary judgment may properly be affirmed
—only where there is no genuine issue of material fact to be
tried, and the facts as to which there is no such issue warrant
the entry of judgment for the moving party as a matter of
law.”Kaytor v. Electric Boat Corp., 609 F.3d 537, 545 (2d
Cir.2010) (“Kaytor”); seeFed.R.Civ.P. 56(a); see, e.g., Jasco
Tools, Inc. v. Dana Corp., 574 F.3d 129, 151 (2d Cir.2009)
(“Jasco”).“The function of the district court in considering
the motion for summary judgment is not to resolve disputed
questions of fact but only to determine whether, as to any
material issue, a genuine factual dispute exists.”Kaytor, 609
F.3d at 545; see, e.g., Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249–50 (1986) (“Liberty Lobby ”).
*7 In reviewing the evidence and the inferences that may
reasonably be drawn, the court “may not make credibility
determinations or weigh the evidence....‘Credibility
determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury
functions, not those of a judge.’“ Reeves [v. Sanderson
Plumbing Products, Inc.], 530 U.S. [133,] 150... [ (2000) ]
(quoting Liberty Lobby, 477 U.S. at 255... (emphases
ours)); see, e.g., Agosto v. INS, 436 U.S. 748, 756 ... (1978)
(“a district court generally cannot grant summary judgment
based on its assessment of the credibility of the evidence
presented”).
Kaytor, 609 F.3d at 545–46.
“Summary judgment is inappropriate when the admissible
materials in the record ‘make it arguable’ that the claim
has merit,”id. at 545 (quoting Jasco, 574 F.3d at 151
(other internal quotation marks omitted)), “for the court in
considering such a motion ‘ “must disregard all evidence
favorable to the moving party that the jury is not required
to believe,” ‘ “ Kaytor, 609 F.3d at 545 (quoting Jasco, 574
F.3d at 152 (quoting Reeves, 530 U.S. at 151 (emphasis in
Jasco ))). And in light of “the fact-specific nature of the
inquiry” on an excessive force claim (see Part II.B. below),
“granting summary judgment against a plaintiff on [such
a claim] is not appropriate unless no reasonable factfinder
could conclude that the officers' conduct was objectively
unreasonable,” Amnesty America v. Town of West Hartford,
361 F.3d 113, 123 (2d Cir.2004) (“Amnesty America ”).

In sum, summary judgment is proper only when, if all
permissible inferences and credibility questions are resolved
in favor of the party against whom judgment is sought,
“there can be but one reasonable conclusion as to the
verdict,”Liberty Lobby, 477 U.S. at 250, i.e.,“it is quite clear
what the truth is,”Poller v. Columbia Broadcasting System,
Inc., 368 U.S. 464, 467 (1962) (internal quotation marks
omitted).

B. The Fourth Amendment, Excessive Force, and
Qualified Immunity
“Fourth Amendment jurisprudence has long recognized that
the right to make an arrest or investigatory stop necessarily
carries with it the right to use some degree of physical
coercion or threat thereof to effect it.”Graham v. Connor, 490
U.S. 386, 396 (1989). However, it is also well established that
law enforcement officers violate the Fourth Amendment if the
amount of force they use is “ ‘objectively [un]reasonable’ in
light of the facts and circumstances confronting them.”Id. at
397. “[P]roper application” of “[t]he test of reasonableness”
in this context
requires careful attention to the facts and circumstances of
each particular case, including 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. See Tennessee v. Garner, 471 U.S. [1], 8–9 [ (1985) ]
(the question is “whether the totality of the circumstances
justifie[s] a particular sort of ... seizure”).
*8 Graham, 490 U.S. at 396 (internal quotation marks
omitted) (emphases ours). Further,
[t]he 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.
Id. at 396–97. “The ‘reasonableness' of” the amount of
force used thus “must be judged from the perspective of a
reasonable officer on the scene .... at the moment” the force is
used. Id. at 396; see, e.g., Maxwell v. City of New York, 380
F.3d 106, 108 (2d Cir.2004) (“Maxwell”); Amnesty America,
361 F.3d at 123; O'Bert ex rel. Estate of O'Bert v. Vargo,

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331 F.3d 29, 36 (2d Cir.2003). In sum, the “standard” to be
applied in determining whether “the amount of force” used
exceeded the amount that was “necessary” in the particular
circumstances is “reasonableness at the moment.” Graham,
490 U.S. at 396, 397; see, e.g., Amnesty America, 361 F.3d at
123 (“In other words, the factfinder must determine whether,
in light of the totality of the circumstances faced by the
arresting officer, the amount of force used was objectively
reasonable at the time.”).
The doctrine of “[q]ualified immunity shields government
officials from civil damages liability unless the official
violated a statutory or constitutional right that was clearly
established at the time of the challenged conduct.”Reichle
v. Howards, 132 S.Ct. 2088, 2093 (2012); see, e.g., Tracy
v. Freshwater, 623 F.3d 90, 95–96 (2d Cir.2010); Papineau
v. Parmley, 465 F.3d 46, 55 (2d Cir.2006). Officials are
“entitled to qualified immunity [when] their decision was
reasonable, even if mistaken,”Hunter v.. Bryant, 502 U.S.
224, 229 (1991); the doctrine “ ‘gives ample room for
mistaken judgments' by protecting ‘all but the plainly
incompetent or those who knowingly violate the law,’ “
id.(quoting Malley v. Briggs, 475 U.S. 335, 343, 341 (1986)).
“[W]hen a defendant official invokes qualified immunity as a
defense in order to support a motion for summary judgment, a
court must consider two questions: (1) whether the evidence,
viewed in the light most favorable to the plaintiff, makes out a
violation of a statutory or constitutional right, and (2) whether
that right was clearly established at the time of the alleged
violation.” Tracy v. Freshwater, 623 F.3d at 96 (emphasis
added).
In the present case, we have several problems with the grant
of summary judgment to Watson, both on the merits of the
excessive force claim—as to which Rogoz of course has the
burden of proof—and on the issue of qualified immunity—an
affirmative defense on which Watson has the burden of proof
either at trial or on a motion for summary judgment, see, e.g.,
Gomez v. Toledo, 446 U.S. 635, 640 (1980). As to the merits,
at least two of the Graham factors that must be considered
in determining whether the force used was necessary or
was instead excessive could not properly be found to have
been established as a matter of law. Defendants stated as
undisputed facts that on the highway, when Rogoz “noticed
two Hartford Police cruisers with lights activated,” he “pulled
over”; that “Rogoz was directed by an officer to exit his
vehicle with his hands up, and he complied”; and that “Rogoz
was directed by officers to lay face down on the ground with
his hands behind his back, and he complied.”(Defendants'

Rule 56(a)1 Statement ¶¶ 15–17.) Accordingly, the police
officer defendants expressed in their brief on appeal “no
material disagreements” (Watson brief on appeal at 5) with
Rogoz's assertions that, before Watson broke his back and rib,
Rogoz had “complied with each of the officers' commands”
and had “not resist[ed] in any way” (Rogoz brief on appeal at
6). Based on these facts a jury could easily infer that Rogoz
—out of his car, prone on the ground, and compliant when
Watson jumped on his back—did not “pose[ ] an immediate
threat to the safety of the officers or others” and was not
“actively resisting arrest or attempting to evade arrest by
flight,”Graham, 490 U.S. at 396. That permissible inference
could not properly be rejected as a matter of law.
*9 The police officer defendants contend that it is
“[im]material” that Rogoz “was complying with officers'
directions at the very moment in time that force was used
against him.”(Watson brief on appeal at 7.) This contention is
meritless for two reasons. First, it is contrary to the Graham
principle that, in the assessment of “[t]he ‘reasonableness' of a
particular use of force ... from the perspective of a reasonable
officer on the scene” in light of the particular circumstances, a
“standard of reasonableness at the moment applies,”490 U.S.
at 396. While the district court found that “the totality of the
circumstances sp[oke] to a level of urgency that preclude[d]
a finding in Rogoz's favor,”D.Ct. Op., 2013 WL 3816580, at
*15, we cannot agree that that is so as a matter of law. Given
the undisputed facts that on the highway, Rogoz had pulled
over when he noticed the police vehicles, had complied with
officers' orders to exit his car, and had complied with their
orders to lie face down on the ground with his hands behind
his back, and had done so without any show of resistance, a
jury could find that, by that time, there was no urgency that
necessitated jumping on Rogoz's back. And if the jury were to
find that Watson in fact proceeded to jump on Rogoz's back
with such force that he broke Rogoz's rib and/or his spine, it
could well find that Watson had used more force than was
necessary. Of course, the jury is not compelled to find either
that Watson jumped on Rogoz's back—an assertion by Rogoz
that is conceded by the police officer defendants only “for
the purpose of” defending “Summary Judgment” (Watson
brief on appeal at 5–6)—or that the amount of force used
by Watson in fact broke Rogoz's spine and rib, an issue that
remains in dispute. But if Watson jumped on the back of
the prone, compliant Rogoz, breaking his spine and rib, it is
surely at least arguable that the force used was excessive.
Second, in seeking to divert focus from the undisputed
fact that Rogoz was compliant and prone on the ground

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with his hands behind him at the moment Watson jumped
on his back, the police officer defendants argue that we
must consider “the undisputed facts that led up to the
moment of his arrest,” which they describe as “including ...
Rogoz's attempt to evade a law officer ” (Watson brief
on appeal at 7 (emphasis added)). And indeed, this view
of Rogoz as having previously tried to escape capture by
law enforcement was a major premise of the district court's
grant of summary judgment in favor of Watson. See, e.g.,
D.Ct. Op., 2013 WL 3816580, at *15 (stating that “Rogoz
had actively resisted Watson's attempt to apprehend him
after he had purchased heroin” (emphasis added); referring
to “Rogoz's urgent flight from law enforcement through
Hartford's streets” (emphasis added); stating that Watson's
use of force was reasonable “to assure that Rogoz did
not resume this flight” (emphasis added); stating that force
is reasonable “where the suspect has previously refused
to comply with the officers' orders” (internal quotation
marks omitted) (emphases ours)). The court also found, in
concluding that Watson was entitled to qualified immunity,
that “it was ...reasonable for Watson to believe that Rogoz
had attempted to flee from law enforcement.... “ Id. at *16
(emphases added). Thus, both as to the merits of Rogoz's
excessive force claim and as to Watson's defense of qualified
immunity, the district court's conclusion that the force Watson
used was warranted, or was reasonably believed to be
warranted, rested on the premise that Rogoz, in fleeing from
the Lawrence Street area, was knowingly fleeing from law
enforcement.
*10 Yet the only factual foundation for the proposition
that Rogoz had fled “from law enforcement” and had
“previously” refused to comply with an “officer['s]” orders
was the premise that Watson, in the Lawrence Street area, had
identified himself to Rogoz as a police officer. That premise,
however, was clearly in dispute. Although defendants argue
on this appeal that Watson, after exiting the Honda in the
Lawrence Street area, “held up his badge and identified
himself as a police officer” (Watson brief on appeal at 4;
see also City brief on appeal at 2), Rogoz stated in his
affidavit opposing summary judgment that the man who
exited the Honda “did not identify himself as an officer in
any way” (Rogoz Aff. ¶¶ 4–6; see alsoRogoz Dep. at 67, 86
(the man who exited the Honda did not make “any gesture”
or “any arm movement,” “[h]e never showed nothing”)).
Thus, defendants' contention that Watson identified himself
as a police officer in the Lawrence Street area was nowhere
mentioned in their Rule 56(a)1 Statement of undisputed
facts. Indeed, defendants' memorandum of law purported to

accept Rogoz's version of the facts (see, e.g., Defendants'
Summary Judgment Memorandum at 17 (arguing that Watson
was entitled to summary judgment in his favor “[e]ven
assuming the facts as Plaintiff presents them are true”); id.
at 18 n. 1 (“[e]ven assuming plaintiff's version of events is
true”)); and the “FACTUAL BACKGROUND” section of
their memorandum stated that when Watson's Honda pulled
in front of Rogoz's car in the Lawrence Street area, “Plaintiff
drove quickly away from” the Honda “[b]elieving he was in
imminent danger,” as the “detective [who] exited the vehicle
and ran toward the passenger door of Plaintiff's car, ... ‘failed
to identify himself as a police officer in any respect ’ “ (id. at
2 (citing and quoting Complaint ¶¶ 14–16 (emphases ours))).
The district court nonetheless found that it was “eminently
reasonable for Detective Watson to believe ... that Rogoz had
fled after Watson had identified himself as a police officer
verbally and by displaying his badge,” D.Ct. Op., 2013 WL
3816580, at *14 (emphasis added). But if in fact Watson, in
the Lawrence Street area, did not identify himself as a police
officer in any way, there was no basis in the record for the
district court's findings (a) that Rogoz had previously resisted
arrest, or (b) that he had knowingly fled from law enforcement
officers, or (c) that Watson could reasonably believe Rogoz
had resisted arrest or fled from law enforcement.
The district court disregarded the dispute as to whether
Watson had identified himself in the Lawrence Street area,
apparently finding Rogoz's affidavit and deposition testimony
not credible. The court said that,
[w]hile Rogoz disputes that Watson
provided identification, his dispute is
tempered by the urgency with which
Rogoz undertook to flee a perceived
dangerous situation and his inability to
recall any details as to the individual
who approached his car.
*11 D.Ct. Op., 2013 WL 3816580, at *16 (emphasis added).
This may explain why the court itself would not credit
Rogoz's statement that Watson did not identify himself. But
Rogoz's assertions as to this material fact, made under oath
in his affidavit and his deposition, clearly created a genuine
dispute. The question of Rogoz's credibility was a matter for
the factfinder; it was not a matter that the court could properly
resolve on a motion for summary judgment.
In addition to making a credibility determination and
resolving against Rogoz the material factual issue of whether

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Watson had identified himself to Rogoz as a police officer,
the district court failed in other respects to view the record
in the light most favorable to Rogoz. In finding that it
was “reasonable for Detective Watson to conclude that
subduing Mr. Rogoz quickly and efficiently by putting his
knee or knees on Mr. Rogoz's back immediately before ...
handcuff[ing him],”D.Ct. Op., 2013 WL 3816580, at *15
(emphases added), and that Watson was entitled to qualified
immunity because it was clearly established that such action
was reasonable, see id., the district court analogized to cases
such as Mongeau v. Jacksonville Sheriff's Office, 197 F. App'x
847, 851 (11th Cir.2006), in which an officer placed his knee
on an arrestee's back to subdue him, after the arrestee had
resisted and had refused to exit his vehicle; Massaro v. Jones,
323 F. App'x 68, 70 (2d Cir.2009), in which the officers dealt
with a suspect who they knew had previously been convicted
of crimes involving weapons and who had hesitated before
complying with their orders; and Davis v. Callaway, 2007 WL
1079988, in which, as the district court here noted, the officers
dealt with a suspect who had been involved in an altercation,
and who had obeyed an order to sit on the ground but then
“jumped up to protest treatment of [an]other arrestee,”D.Ct.
Op., 2013 WL 3816580, at *15. These cases are not analogous
to the present case, however, if the record here is viewed
properly, in the light most favorable to Rogoz as the party
opposing summary judgment. Viewed in that light, there was
no resistance by Rogoz to the officers' orders, no history
of crimes of violence, and no disobedience; he was entirely
compliant; he was already subdued.

compliant, Watson's jumping on his back with such force as
to break his spine and rib was excessive.

The court also failed to view the evidence in the light most
favorable to Rogoz in analyzing the amount of force that
was employed against him. In discussing excessive force
principles, the court referred neither to any break or fracture
of any of Rogoz's bones, nor to any violent conduct such as
a jump onto Rogoz's back. Rather, it referred, for example,
to the propriety of using “[s]ome degree of physical force,”
id.(internal quotation marks omitted) (emphasis added); to
whether “[i]t was reasonable for Watson to employ some
force against Rogoz,”id.(emphasis added); to “plac[ing] a
knee (or knees) on [Rogoz's] back,” id. at *9 (emphasis
added); to Watson's “putting his knee or knees on Mr. Rogoz's
back,” id. at *15 (emphasis added); to “put [ting] his weight
on Rogoz's back to effectuate his arrest,” id. at *17 (emphasis
added). The question was not whether “some” force was
unnecessary, or whether Watson's “put[ting]” his “weight”
and “plac[ing]” his “knee” on Rogoz's back was acceptable;
it was whether, with the record viewed in the light most
favorable to Rogoz, with Rogoz prone on the ground and

Finally, had the district court properly disregarded
defendants' contention that Watson had identified himself
to Rogoz as a police officer in the Lawrence Street area—
as it was required to do on a summary judgment motion,
since a jury would be entitled to discredit such trial
testimony by Watson—the court could not have found that
the law was insufficiently clear for Watson to know he
was violating Rogoz's Fourth Amendment rights. Without
Watson's identifying himself as an officer, there was no
evidence whatever that Rogoz had disobeyed any police order
or had in any way resisted arrest. As the court itself noted,
“courts often” have found the “gratuitous” use of “similar
force” against an arrestee “where the arrestee offered no
resistance,” to be “excessive.” D.Ct. Op., 2013 WL 3816580,
at *17 (emphases added).

*12 Having framed the issue as whether “[s]ome degree of
force” and “plac [ing]” “weight” on a suspect's back could
be reasonable, the court found that Watson was entitled to
qualified immunity on the basis that the law was not clearly
established that such force would violate a suspect's rights
under the Fourth Amendment. However, actions by officers
far less extreme than jumping on the back of a prone and
compliant suspect, and apparently resulting in injuries far
less serious than broken spines and ribs, had long been held
sufficient to support a Fourth Amendment claim of use of
excessive force. See, e.g., Maxwell, 380 F.3d at 109 (a 2004
decision reversing a grant of summary judgment dismissing
an excessive force claim where an officer shoved the plaintiff
into the back seat of a police car and the plaintiff's head
“struck a hard surface of the car” causing “pain in[ ] her arm
and lower back and ... a post-concussive syndrome” (internal
quotation marks omitted)); see also id. at 108 (“we have
permitted a plaintiff's claim to survive summary judgment
on allegations that, during the course of an arrest, a police
officer twisted her arm, ‘yanked’ her, and threw her up against
a car, causing only bruising, Robison v. Via, 821 F.2d 913,
924–25 (2d Cir.1987)”). In light of these rulings, no officer
in 2009 could reasonably have believed it permissible under
the Fourth Amendment to jump on the back of a prone and
compliant suspect gratuitously, with sufficient force to break
his spine and rib.

For the foregoing reasons, we conclude that Watson was not
entitled to summary judgment either on the merits of Rogoz's
excessive force claim or on Watson's defense of qualified

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immunity to that claim. We vacate so much of the judgment as
dismissed Rogoz's Fourth Amendment claim against Watson
for the use of excessive force.
Given the reinstatement of that claim, we also vacate the
district court's dismissals of Rogoz's state-law claims that
were related to it, including the analogous state constitutional
claim that the court found meritless, the state-law claims as to
which the court declined to exercise supplemental jurisdiction
because all federal claims were being dismissed, and the
claims against the City under Conn. Gen. Stats. §§ 52–557n,
7–465, for negligent infliction of harm or for indemnification,
which the court found it unnecessary to address.

C. Failure To Intercede
*13 We affirm the entry of summary judgment in favor of
the defendant police officers other than Watson substantially
for the reasons stated in the district court's opinion. In order
for a law enforcement officer to be held liable for another
officer's use of excessive force, “there must have been a
realistic opportunity [for the former] to intervene to prevent
the harm from occurring.”Anderson v. Branen, 17 F.3d 552,
557 (2d Cir.1994).

up and jumped ... onto my back” (Rogoz Dep. at 79, 81).
As Rogoz's counsel stated at oral argument of this appeal,
Rogoz described Watson's jumping on his back as “fairly
immediate.” Rogoz did not proffer any evidence from which a
juror could rationally infer that the officers who were present
had a realistic opportunity to prevent Watson's jump.

CONCLUSION
We have considered all of the parties' arguments on this
appeal, and, except as indicated above, have found them to be
without merit. The judgment of the district court is vacated
to the extent that it dismissed Rogoz's § 1983 claim against
Watson for the use of excessive force and his state-law claims
related to the use of excessive force; in all other respects
the judgment is affirmed. The matter is remanded for further
proceedings not inconsistent with this opinion.
Costs to plaintiff.

All Citations
--- F.3d ----, 2015 WL 4716570

As Rogoz described his arrest, when he placed himself prone
on the ground as instructed, “that was when” Watson “ran
End of Document

© 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works.

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