Faulk v. New York City Department of Corr. et al

Filing 121

OPINION AND ORDER re: 109 MOTION for Summary Judgment filed by Barnes, Reyes, Pringles, Madan, Robert Shaw, Swanzi, Guzman, Jenkins, City of New York. For the reasons discussed above, Defendants' Motion for summary judgment dismissing all of P laintiff's claims against the City of New York and defendants Shaw, Madan, Pringles, Reyes, Jenkins, Barnes, Guzman and Swanzi is hereby GRANTED. Additionally, the claims against defendants Abrams, Bannister, Battles, Davis, Griswald, Henry, Oca sio and Jean are hereby dismissed without prejudice under Rule of Civil Procedure 4(m). The Clerk of Court is directed to close the motion at docket number 109, to close this case, and to mail a copy of this Opinion and Order to the pro se Plaintiff. (Signed by Judge Lorna G. Schofield on 1/21/2014) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
ALFONZO FAULK,
:
Plaintiff,
:
:
-against:
:
NEW YORK CITY DEPARTMENT OF
:
CORRECTIONS, et al.,
:
Defendants. :
:
------------------------------------------------------------- X

01/21/2014

08 Civ. 01668 (LGS)
OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge:
Plaintiff Alfonso Faulk brings this action pro se pursuant to 42 U.S.C. § 1983 against the
City of New York and Warden Shaw, as well as various corrections officers, legal coordinators
and medical personnel, for violations of his constitutional rights while incarcerated at the
Manhattan Detention Complex and the George R. Vierno Center in 2007. Plaintiff asserts claims
of conspiracy; deliberate indifference to his medical needs; excessive force; violation of a right
of access to the courts; supervisory liability; and municipal liability. Defendants City of New
York, Warden Shaw, Correction Officer Madan, Correction Officer Pringles, Correction Officer
Reyes, Legal Coordinator Jenkins, Doctor Barnes, Doctor Guzman and Physician Assistant
Swanzi (collectively “Defendants”) move for summary judgment dismissing Plaintiff’s
complaint in its entirety (“Motion”). For the reasons discussed below, Defendants’ Motion is
granted.
I.

Background
A. Procedural Background
Plaintiff filed his complaint in this action on February 20, 2008. Plaintiff amended his

complaint on May 30, 2008 and again on April 7, 2009.
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1. Dismissal of Certain Defendants
On August 16, 2012, Magistrate Judge Michael Dolinger issued a Report and
Recommendation (“R&R”), recommending that the Court grant Plaintiff a 30-day extension to
properly serve defendants Abrams, Bannister, Battles, Davis, Griswald, Henry and Ocasio, for all
of whom previous service had been improper. The R&R also recommended that the Court direct
Plaintiff to provide additional identifying information as to defendant Jean within 10 days and
that the claims against Jean be dismissed if he remained unidentified within an additional 30
days. Additionally, the R&R recommended that the claims against defendants Butler and Etere
be dismissed without prejudice due to failure of proper service after multiple extensions.
On September 13, 2012, Judge George Daniels issued an Order adopting each of these
recommendations, with the variance of granting Plaintiff a 60-day extension to properly serve
defendants Abrams, Bannister, Battles, Davis, Griswald, Henry and Ocasio. To date, Plaintiff
has not filed proof of service with the Court as to these seven defendants or as to defendant Jean.
Accordingly, the claims against defendants Abrams, Bannister, Battles, Davis, Griswald, Henry,
Ocasio and Jean are hereby dismissed without prejudice under Rule of Civil Procedure 4(m).
This narrows the defendants in this case to only those whose Motion is currently before the
Court.
2. Summary Judgment Motion
Defendants timely filed their Motion on June 18, 2013. Plaintiff’s opposition was due
July 9, 2013. On July 17, 2013, Defendants requested that the Court declare their Motion fully
briefed, as Plaintiff had failed to file any opposition. At this time, the Court enlarged Plaintiff’s
deadline to file his opposition to August 28, 2013 and ordered that the Motion would be declared
fully briefed if Plaintiff had not filed any opposition by that date. On July 22, 2013, Plaintiff
wrote to the court, saying, “I write to apologize for my lateness to answer the defendants’ motion
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for summary judgment, due to an emergency in my family” and requesting a 14-day extension.
At this time, the Court referred Plaintiff to its July 17, 2013 Order, reiterating that Plaintiff had
until August 28, 2013 to file his opposition. Copies of each of these orders were mailed to
Plaintiff. Plaintiff did not ever file any opposition to Defendants’ Motion.
B. Factual Background
The facts are taken from Defendants’ 56.1 Statement, Plaintiff’s deposition on the record
and Plaintiff’s Second Amended Complaint (“SAC”) and, as is required on this Motion,
construed in the light most favorable to Plaintiff, the non-moving party.
From February 8, 2007 through August 8, 2007, Plaintiff was incarcerated at the
Manhattan Detention Complex. On May 30, 2007, C.O. Pringles and two other correction
officers issued Plaintiff a disciplinary ticket. That same day, after an investigation, a captain in
the prison voided the ticket.
On May 31, 2007, Plaintiff was attacked by other inmates, sustaining injuries to his neck,
jaw, mouth, eyes, and knees. “An hour or two” after the assault, Plaintiff was seen by Dr.
Barnes. Dr. Barnes sent Plaintiff to the dentist to address the injuries to Plaintiff’s mouth and
jaw. Dr. Barnes requested that Plaintiff sign an “injury report,” but Plaintiff refused because,
while the report documented some of Plaintiff’s injuries, it excluded the injuries to his knees,
among others. Dr. Barnes told Plaintiff that he could not treat him for his knee injuries until the
next day, and Plaintiff would have to show up for “sick call” to have these injuries treated.
Plaintiff showed up for sick call the next day, and his knees were cleaned and bandaged.
On July 24, 2007, Plaintiff was scheduled to go on a “medical trip” for surgery on his eye
due to an infection. Plaintiff, at this time, was housed in an area for high-security inmates.
Before escorting Plaintiff on his medical trip, C.O. Madan instructed other officers in the prison
to “put maximum restraints” on Plaintiff. Plaintiff refused to wear the restraints “because of
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[his] shoulder injury,” which he claimed would have caused him “a lot of pain” while wearing
the restraints. C.O. Madan told Plaintiff that his refusal to wear the restraints meant that he could
not go on the medical trip. Plaintiff was given the opportunity to change his mind regarding the
restraints, but he still refused to wear them, so he was not taken on his medical trip that day.
Plaintiff obtained the eye surgery he needed after being transferred to Livingston Correction
Facility on November 28, 2007.
On July 26, 2007, Plaintiff was entering his cell, and C.O. Madan was operating the
automatic metal doors, which closed on Plaintiff’s hand. Plaintiff’s hand and wrist became
swollen as a result of this incident, and Plaintiff received x-rays, showing that no bones were
broken. Plaintiff believes that C.O. Madan closed the door on his hand purposefully due to her
“attitude” toward Plaintiff.
On August 7, 2007, for about three hours, C.O. Pringles denied Plaintiff access to his cell
to use the bathroom. At this time, Plaintiff claimed that he was experiencing “complications
from a previous surgery for urethra stricture,” so that holding in his urine caused him pain. After
three hours, Plaintiff passed out, fell and was taken to the emergency clinic. After Plaintiff
urinated, his pain subsided.
From August 8, 2007 through November 8, 2007, Plaintiff was incarcerated at the George
R. Vierno Center. From August 29, 2007 through August 31, 2007, Plaintiff had a gash on his
gums, causing them to bleed, as well as pain in his knees, back, and right shoulder. During this
same time period, Plaintiff attempted to receive medical treatment for his injuries and pain from
P.A. Swanzi, but was unsuccessful.
In August of 2007, Plaintiff sought to have a motion notarized at the George R. Vierno
Center’s law library for one of his criminal proceedings. Plaintiff was represented by counsel in
this proceeding until around September 17, 2007. On August 29, 2007, Legal Coordinator Ms.
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Jenkins returned Plaintiff’s motion, which was not notarized. Ms. Jenkins also wrote Plaintiff a
note, which was attached to the motion and explained that she could not notarize the motion due
to incomplete information provided by Plaintiff. On August 31, 2007, Ms. Jenkins sent a second
note to Plaintiff, explaining why she could not copy or notarize Plaintiff’s motion, specifically,
that Plaintiff needed to add his aliases to the motion. Plaintiff believes he was eventually able to
file his motion.
On October 10, 2007, C.O. Reyes “sent an unidentified officer” to bring some legal
documents to Plaintiff’s cell, which Plaintiff had requested on September 27, 2007. All of these
legal documents were redacted or “wiped out,” and on some of the documents only the name of
the motion was visible to Plaintiff.
On October 3, 2007, October 12, 2007 and October 27, 2007, Plaintiff spoke to Warden
Shaw about being denied access to the law library. Plaintiff also had conversations with Warden
Shaw about his concerns regarding his medical treatment.
On November 23, 2007, Dr. Guzman prescribed Plaintiff the medication Bactrim, but did
not inform Plaintiff of this prescription or that Plaintiff had been infected with MRSA. Plaintiff
was handed the Bactrim prescription when he was picking up some other medical supplies at the
prison pharmacy on November 24, 2007. On November 25, 2007, Plaintiff was informed that he
was infected with MRSA when he attempted to return the Bactrim to the pharmacy, assuming it
was not his.
On November 28, 2007, Plaintiff was transferred to Livingston Correction Facility.
II.

Legal Standard
The standard for summary judgment is well established. Summary judgment is

appropriate where the record before the court establishes that there is no “genuine dispute as to

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any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a).
The moving party bears the initial burden of informing the court of the basis for the
summary judgment motion and identifying those portions of the record that demonstrate the
absence of a genuine dispute as to any material fact. Fed. R. Civ. P. 56(c); see, e.g., Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Koch v. Town of Brattleboro, 287 F.3d 162, 165 (2d
Cir. 2002). The court must construe the evidence in the light most favorable to the non-moving
party and must draw all reasonable inferences in the non-moving party’s favor. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); In re “Agent Orange” Prod. Liab. Litig., 517
F.3d 76, 87 (2d Cir. 2008).
If the non-moving party has the burden of proof on a specific issue, the moving party
may satisfy its own initial burden by demonstrating the absence of evidence in support of an
essential element of the non-moving party’s claim. See, e.g., Celotex, 477 U.S. at 322-23;
PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002). In other words, summary
judgment is warranted if a party “fails to make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Celotex, 477 U.S. at 322.
If the moving party carries its initial burden, then the non-moving party bears the burden
of demonstrating a genuine issue of material fact. See, e.g., id. at 322; Beard v. Banks, 548 U.S.
521, 529 (2006); Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001). The non-moving party
cannot “rely merely on allegations or denials” of the factual assertions of the moving party. Fed.
R. Civ. P. 56(e)(2); see, e.g., Amaker v. Foley, 274 F.3d 677, 680-81 (2d Cir. 2001). Moreover,
“conclusory statements, conjecture, or speculation by the party resisting the motion will not
defeat summary judgment.” Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996).
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The non-moving party must present specific evidence in support of its contention that
there is a genuine dispute as to the material facts. See, e.g., Celotex, 477 U.S. at 324; Scotto v.
Almenas, 143 F.3d 105, 114 (2d Cir.1998). Furthermore, to demonstrate a genuine dispute as to
the material facts, the non-moving party must come forward with sufficient evidence to permit a
reasonable jury to return a verdict in his favor. See, e.g., Anderson, 477 U.S. at 242, 248; Byrnie
v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001).
“Although pro se plaintiffs are entitled to special latitude, when defending against
summary judgment motions, absent a showing of concrete evidence from which a reasonable
juror could return a verdict in [the non-moving party’s] favor, summary judgment must be
granted to the moving party.” Jermosen v. Coughlin, 877 F. Supp. 864, 867 (S.D.N.Y. 1999)
(alteration in original) (citations omitted) (internal quotation marks omitted). “Evidence which is
merely colorable, conclusory, speculative or not significantly probative is insufficient to
withstand a summary judgment motion.” Id. (internal quotation marks omitted).
Summary judgment may not be granted simply due to the fact that the non-moving party
did not file an opposition, as the moving party must still satisfy its burden. See Amaker, 274
F.3d at 681. However, where no opposition is filed and the moving party has satisfied its initial
burden, then a grant of summary judgment is appropriate. See Fed. R. Civ. P. 56(e)(2); Amador
v. Andrews, No. 03 Civ. 0650, 2010 WL 2365855, at *2 (S.D.N.Y. June 10, 2010).
III.

Discussion
A. Conspiracy
Plaintiff alleges in his SAC that on May 30, 2007, C.O. Pringles and two other correction

officers “conspired and wrote a disciplinary ticket” against Plaintiff, which was voided upon
investigation by a captain. Plaintiff also alleges in his SAC that on May 31, 2007, Dr. Barnes,
another doctor and prison officials “conspired to deny [Plaintiff] adequate medical treatment” by
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tailoring Plaintiff’s medical report to “corroborate the incident and disciplinary reports” of the
prison officials. Plaintiff’s claims for conspiracy against both C.O. Pringles and Dr. Barnes fail
as a matter of law.
To prove conspiracy under 42 U.S.C. § 1983, a plaintiff must show “(1) an agreement
between two or more state actors or between a state actor and a private entity; (2) to act in
concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal
causing damages.” Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). “Broad allegations
of conspiracy are insufficient; the plaintiff must provide some factual basis supporting a meeting
of the minds, such that defendants entered into an agreement, express or tacit, to achieve the
unlawful end.” Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009) (internal quotation marks
omitted). “Unsubstantiated speculation” will not defeat summary judgment as to a § 1983
conspiracy claim. See Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
Here, Plaintiff’s allegations of conspiracy are broad, conclusory and unsubstantiated.
The evidence in the record is insufficient for a reasonable jury to find that Plaintiff has
established the three elements required to prove conspiracy. Accordingly, Defendants’ Motion
for summary judgment on Plaintiff’s conspiracy claims is granted.
B. Deliberate Indifference to Serious Medical Needs
Plaintiff makes several factual allegations in his SAC that, construed liberally, attempt to
state claims against Dr. Barnes, C.O. Madan, C.O. Pringles, Dr. Guzman, and P.A. Swanzi for
deliberate indifference to Plaintiff’s serious medical needs. However, all of Plaintiff’s claims for
deliberate indifference to his serious medical needs fail as a matter of law.
To prove deliberate indifference to serious medical needs under 42 U.S.C. § 1983, a
plaintiff must satisfy a two-prong test, one prong being objective and the other subjective.
Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006).
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The objective prong requires the plaintiff to demonstrate that the alleged deprivation of
medical care was “sufficiently serious.” Id. (internal quotation marks omitted). A deprivation is
sufficiently serious where “a condition of urgency, one that may produce death, degeneration, or
extreme pain exists.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal quotation
marks omitted). In determining whether a deprivation is sufficiently serious, the court conducts
two inquiries. Salahuddin, 467 F.3d at 279.
First, the Court examines whether the prisoner was actually deprived of adequate medical
care. Id. A prisoner is not deprived of adequate medical care where prison officials act
“reasonably” in response to an inmate’s medical situation. Id. (internal quotation marks
omitted). “So long as the treatment given is adequate, the fact that a prisoner might prefer a
different treatment,” or “mere disagreement over the proper treatment, does not create a
constitutional claim.” Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998).
Second, the Court inquires whether the inadequacy in medical care is sufficiently serious,
specifically examining “how the offending conduct is inadequate and what harm, if any, the
inadequacy has caused or will likely cause the prisoner.” Salahuddin, 467 F.3d at 280. If the
inadequate medical care is a complete failure to provide treatment, courts examine “whether the
inmate’s medical condition is sufficiently serious.” Id. However, “where the inadequacy is in
the medical treatment given, the seriousness inquiry is narrower.” Id. If “the offending conduct
is an unreasonable delay or interruption in . . . treatment, the seriousness inquiry focus[es] on the
challenged delay or interruption in treatment rather than the prisoner’s underlying medical
condition alone.” Id. (second alteration in original) (internal quotation marks omitted).
The subjective prong requires the plaintiff to demonstrate that the prison official acted
with a “sufficiently culpable state of mind.” Id. Specifically, a plaintiff must prove that the
official acted with “deliberate indifference,” which is a state of mind “equivalent to subjective
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recklessness.” Id. “This mental state requires that the charged official act or fail to act while
actually aware of a substantial risk that serious inmate harm will result.” Id. “Negligence, even
if it constitutes medical malpractice, does not, without more, engender a constitutional claim.”
Chance, 143 F.3d at 703.
1. Dr. Barnes
Plaintiff alleges in his SAC that on May 31, 2007, Dr. Barnes “refused to treat and
examine” certain “injuries suffered” by Plaintiff in an assault by other inmates and that Dr.
Barnes “deliberately minimized” Plaintiff’s injuries in his medical report. Plaintiff also alleges
that Dr. Barnes should have sent Plaintiff for x-rays instead of to the dentist. However, the
record does not contain sufficient evidence to permit a reasonable jury to find that Plaintiff has
established Dr. Barnes’ conduct amounted to a constitutional violation.
First, Plaintiff has not produced any evidence that his injuries on May 31, 2007 were
sufficiently serious. Plaintiff describes his injuries primarily as swelling, bleeding and
lacerations. Plaintiff does mention in his deposition that he may have sustained a broken jaw.
However, the record shows that Dr. Barnes sent Plaintiff to the dentist to address the injuries to
his mouth and jaw. Therefore, even if Plaintiff’s jaw injury was sufficiently serious, Dr. Barnes
acted reasonably in response to the situation by sending him for treatment. While Plaintiff
maintains that he should have been sent for x-rays, disagreement regarding proper medical
treatment does not give rise to a constitutional claim.
Second, Plaintiff has not produced any evidence that the delay in treatment was
sufficiently serious. The record shows that Dr. Barnes did not immediately treat Plaintiff for his
knee injuries, but that these injuries were tended to the next day.
Accordingly, Defendants’ Motion for summary judgment on Plaintiff’s claim for
deliberate indifference to his serious medical needs against Dr. Barnes is granted.
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2. C.O. Madan
Plaintiff alleges in his SAC that on July 24, 2007, C.O. Madan influenced other officers
not to take Plaintiff on his medical trip because he refused to wear mechanical restraints.
However, the record does not contain sufficient evidence to permit a reasonable jury to find that
Plaintiff has established C.O. Madan’s conduct amounted to a constitutional violation.
First, Plaintiff has not produced any evidence that his injuries on July 24, 2007 were
sufficiently serious. He describes the surgery at issue as a surgery to correct “floaters” around
his eyes, as well as an infection on the side of his eyes. Second, Plaintiff has not produced any
evidence that the delay in treatment was sufficiently serious. The record shows that Plaintiff did
obtain the eye surgery he needed after being transferred to Livingston Correction Facility on
November 28, 2007.
Third, Plaintiff has not produced any evidence that C.O. Madan possessed the requisite
culpable state of mind. Plaintiff concedes that he was housed with high risk inmates at the time
of the medical trip at issue and that the restraints he was asked to wear were “for high risk
inmates.” Plaintiff also concedes that he was informed that his refusal to wear the restraints
would result in his not going on the medical trip and that he was given the chance to change his
mind.
Accordingly, Defendants’ Motion for summary judgment on Plaintiff’s claim for
deliberate indifference to his serious medical needs against C.O. Madan is granted.
3. C.O. Pringles
Plaintiff alleges in his SAC that on August 7, 2007, C.O. Pringles “deliberately denied
[Plaintiff] access to his cell to use the bathroom” even though Plaintiff was experiencing
“complications from a previous surgery for urethra stricture.” However, the record does not

11

contain sufficient evidence to permit a reasonable jury to find that Plaintiff has established C.O.
Pringles’ conduct amounted to a constitutional violation.
First, Plaintiff has not produced any evidence that his injuries on August 7, 2007 were
sufficiently serious. Plaintiff does claim in his SAC that he “passed out, injuring [himself] from
the fall” after he was “force[d] to hold in his urine.” However, he also claims that he was then
taken to the emergency clinic. Therefore, even if Plaintiff’s fall was sufficiently serious, C.O.
Pringles acted reasonably in response to the situation by sending him for treatment. Second,
Plaintiff has not produced any evidence that the delay in treatment was sufficiently serious.
Plaintiff testified that once he urinated, his pain subsided.
Accordingly, Defendants’ Motion for summary judgment on Plaintiff’s claim for
deliberate indifference to his serious medical needs against C.O. Pringles is granted.
4. Dr. Guzman
Plaintiff alleges in his SAC that on November 23, 2007, Dr. Guzman prescribed Plaintiff
the medication Bactrim “without ever informing [Plaintiff] that he [had] been infected with
MRSA.” However, the record does not contain sufficient evidence to permit a reasonable jury to
find that Plaintiff has established Dr. Guzman’s conduct amounted to a constitutional violation.
The record shows, at most, that Dr. Guzman was negligent, which does not give rise to a
constitutional claim. Moreover, Plaintiff has not produced any evidence that Dr. Guzman’s
actions harmed him in any way. Accordingly, Defendants’ Motion for summary judgment on
Plaintiff’s claim for deliberate indifference to his serious medical needs against Dr. Guzman is
granted.
5. P.A. Swanzi
Plaintiff alleges in his SAC that from August 29, 2007 through August 31, 2007, P.A.
Swanzi “refused to treat” Plaintiff for a gash on his gums, as well as pain in his knees, back, and
12

right shoulder. However, the record does not contain sufficient evidence to permit a reasonable
jury to find that Plaintiff has established P.A. Swanzi’s conduct amounted to a constitutional
violation. Plaintiff has not produced any evidence that his injuries from August 29, 2007
through August 31, 2007 were sufficiently serious. Accordingly, Defendants’ Motion for
summary judgment on Plaintiff’s claim for deliberate indifference to his serious medical needs
against P.A. Swanzi is granted.
C. Right of Access to the Courts
Plaintiff makes several factual allegations in his SAC that, construed liberally, attempt to
state claims against Ms. Jenkins and C.O. Reyes for violation of Plaintiff’s right of access to the
courts. However, both of Plaintiff’s claims for violation of Plaintiff’s right of access to the
courts fail as a matter of law.
To prove violation of a plaintiff’s right of access to the courts under 42 U.S.C. § 1983, a
plaintiff must establish that “the defendant's actions resulted in actual injury to the plaintiff such
as the dismissal of an otherwise meritorious legal claim.” Davis v. Goord, 320 F.3d 346, 351 (2d
Cir. 2003) (internal quotation marks omitted). “The constitutional right of reasonable access to
the courts is not violated by [i]nterferences that merely delay an inmate’s ability to work on a
pending cause of action or to communicate with the courts.” Smith v. City of New York, No. 03
Civ. 7576, 2005 WL 1026551, at *7 (S.D.N.Y. May 03, 2005) (alteration in original) (internal
quotation marks omitted). Moreover, “if an inmate is represented by counsel, there can be no
violation of his constitutional right to access to the courts as a matter of law.” Santiago v. N.Y.C.
Dep’t of Corr., No. 97 Civ. 9190, 2003 WL 1563773, at *6 n.2 (S.D.N.Y. Mar. 06, 2003)
(internal quotation marks omitted).

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1.Ms. Jenkins
Plaintiff alleges in his SAC that on August 29 through 31, 2007, Ms. Jenkins “refus[ed]
to copy or notarize [Plaintiff’s] motion.” However, the evidence in the record is insufficient for
a reasonable jury to find that Plaintiff has established Ms. Jenkins’ conduct amounted to a
constitutional violation. The record shows that on the dates at issue, Plaintiff was represented by
counsel. Moreover, the record shows that Plaintiff believes that he was able to file his motion.
Accordingly, Defendants’ Motion for summary judgment on Plaintiff’s claim for violation of
Plaintiff’s right of access to the courts against Ms. Jenkins is granted.
2. C.O. Reyes
Plaintiff alleges in his SAC that on October 10, 2007, C.O. Reyes “sent an unidentified
officer” to bring some legal documents to Plaintiff, and these legal documents were redacted or
“wiped out,” in some cases with only the name of the motion visible to Plaintiff. However, the
evidence in the record is insufficient for a reasonable jury to find that Plaintiff has established
C.O. Reyes’ conduct amounted to a constitutional violation. The record does not contain any
evidence that receiving the documents in this form resulted in actual injury to Plaintiff.
Additionally, the record does not contain any evidence that Officer Reyes was even involved in
altering the documents or delivering them to Plaintiff. Accordingly, Defendants’ Motion for
summary judgment on Plaintiff’s claim for violation of Plaintiff’s right of access to the courts
against C.O. Reyes is granted.
D. Excessive Force
Plaintiff alleges in his SAC that on July 26, 2007, C.O. Madan “intentionally opened and
shut the automatic metal cell doors on [Plaintiff’s] hand.” Plaintiff’s claim for excessive force
against C.O. Madan fails as a matter of law.

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To prove excessive force under 42 U.S.C. § 1983, a plaintiff must show that the
defendant had a “sufficiently culpable state of mind” and that the force was applied “maliciously
and sadistically to cause harm” as opposed to “in a good-faith effort to maintain or restore
discipline.” Hudson v. McMillian, 503 U.S. 1, 7-8 (1992) (internal quotation marks omitted).
Moreover, negligence is not enough to impose liability for excessive force under § 1983.
Daniels v. Williams, 474 U.S. 327, 333-35 (1986).
Here, the record does not contain sufficient evidence to permit a reasonable jury to find
that Plaintiff has shown that C.O. Madan possessed a culpable state of mind or that she acted
maliciously or sadistically. Plaintiff’s only evidence that C.O. Madan closed the door on his
hand purposefully is his testimony about her “attitude” toward Plaintiff. The record shows, at
most, that C.O. Madan was negligent. Accordingly, Defendants’ Motion for summary judgment
on Plaintiff’s excessive force claim is granted.
E. Supervisory Liability
Plaintiff alleges in his SAC that on October 3, 2007, October 12, 2007 and October 27,
2007, Plaintiff spoke to Warden Shaw about being denied access to the law library. Plaintiff also
alleges that he had conversations with Warden Shaw about Plaintiff’s concerns regarding his
medical treatment. Construing these allegations liberally, Plaintiff attempts to state a claim
against Warden Shaw for supervisory liability. However, this claim fails as a matter of law.
To prove supervisory liability under 42 U.S.C. § 1983, a plaintiff must establish that the
defendant had “personal involvement” in a constitutional violation against the plaintiff. Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (internal quotation marks omitted). The Second
Circuit held:
The personal involvement of a supervisory defendant may be shown by evidence
that: (1) the defendant participated directly in the alleged constitutional violation,
(2) the defendant, after being informed of the violation through a report or appeal,
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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 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.
Id.
However, the United States Supreme Court clarified that a supervisor’s mere “knowledge
and acquiescence” cannot establish personal involvement under § 1983. Ashcroft v. Iqbal, 556
U.S. 662, 677 (2009). “Thus, under Iqbal, a defendant can be liable under section 1983 only if
that defendant took an action that deprived the plaintiff of his or her constitutional rights.”
Joseph v. Fischer, No. 08 Civ. 2824, 2009 WL 3321011, at *14 (S.D.N.Y. Oct. 08, 2009). “A
defendant is not liable under section 1983 if the defendant’s failure to act deprived the plaintiff
of his or her constitutional right.” Id. Moreover, mere complaints made to supervisory
defendants are not enough to establish supervisory liability under § 1983. See Rivera v. Goord,
119 F. Supp. 2d 327, 344-45 (S.D.N.Y. 2000) (plaintiff’s allegations that supervisory defendants
ignored his complaints were insufficient to state a claim for supervisory liability).
Here, the evidence in the record is insufficient for a reasonable jury to find that Plaintiff
has established that Warden Shaw was personally involved in any constitutional violations
against Plaintiff. The only evidence in the record is that Plaintiff spoke to Warden Shaw several
times about his grievances. Accordingly, Defendants’ Motion for summary judgment on
Plaintiff’s supervisory liability claim is granted.
F. Municipal Liability
Plaintiff attempts to state a claim against the City of New York for municipal liability;
however, this claim fails as a matter of law.

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To prove municipal liability under 42 U.S.C. § 1983, a plaintiff must prove that “the
municipality itself cause[d] the constitutional violation at issue.” Jenkins v. City of New York,
478 F.3d 76, 93-94 (2d Cir. 2007). In other words, “a plaintiff must establish that the violation
of his constitutional rights resulted from a municipal custom or policy.” Vann v. City of New
York, 72 F.3d 1040, 1049 (2d Cir. 1995); see Monell v. Dep’t of Soc. Servs. of the City of New
York, 436 U.S. 658, 690-91 (1978). If a plaintiff is unable to establish that a municipal policy or
practice was the moving force behind a constitutional violation, then the municipality cannot be
held liable. See Monell, 436 U.S. at 694. A municipality cannot be held responsible under §
1983 based only on a theory of respondeat superior. Id.
Here, the record does not contain any evidence to permit a reasonable jury to find that
Plaintiff has shown that his rights were violated as a result of municipal policy or practice.
While Plaintiff has named the City of New York as a defendant, he has not alleged any facts to
even suggest the existence of a municipal policy or practice that caused his constitutional rights
to be violated. Accordingly, Defendants’ Motion for summary judgment on Plaintiff’s municipal
liability claim is granted.
IV.

Conclusion
For the reasons discussed above, Defendants’ Motion for summary judgment dismissing

all of Plaintiff’s claims against the City of New York and defendants Shaw, Madan, Pringles,
Reyes, Jenkins, Barnes, Guzman and Swanzi is hereby GRANTED. Additionally, the claims
against defendants Abrams, Bannister, Battles, Davis, Griswald, Henry, Ocasio and Jean are
hereby dismissed without prejudice under Rule of Civil Procedure 4(m).

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The Clerk of Court is directed to close the motion at docket number 109, to close this
case, and to mail a copy of this Opinion and Order to the pro se Plaintiff.
Dated: January 21, 2014
New York, New York

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