Toliver v. Dept. of Corrections et al

Filing 119

REPORT AND RECOMMENDATION re: 102 MOTION for Partial Summary Judgment filed by McArdle, Banks, Pressley, Burton: For the foregoing reasons, I recommend that the defendants' motion for partial summary judgment be granted in part and denied in p art. Specifically, I recommend that the motion be granted as to (1) Mr. Toliver's excessive force and failure to intervene claims as against Captain Pressley, Captain Banks, and Officer McArdle, (2) his deliberate indifference to medical need cl aim as against all defendants, and (3) his destruction of property claim as against all defendants. However, I recommend that the motion be denied as to state law claims insofar as they relate to his claim of excessive force by Officer Burton. Pursu ant to 28 U.S.C. § 636(b) (1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from this date to file written objections to this Report and Recommendation. Such objections shall be f iled with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Sidney H. Stein, U.S.D.J., Room 1010, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review. Objections to R&R due by 12/27/2013 (Signed by Magistrate Judge James C. Francis on 12/10/2013) Copies Mailed By Chambers. (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
MICHEL TOLIVER,
: 10 Civ. 5806 (SHS) (JCF)
:
Plaintiff,
:
REPORT AND
:
RECOMMENDATION
- against :
:
THE CITY OF NEW YORK, COMMISSIONER :
OF THE DEPT. OF CORRECTIONS, CHIEF :
OF THE DEPT. OF CORRECTIONS,
:
WARDEN OF G.R.V.C., D.O.C. CAPTAIN :
PRESSLEY # 1176, D.O.C. CAPTAIN
:
BANKS #819, D.O.C. OFFICER BURTON :
# 14371, D.O.C. OFFICER McARDLE
:
# 17893
:
:
Defendants.
:
- - - - - - - - - - - - - - - - - -:
TO THE HONORABLE SIDNEY H. STEIN, U.S.D.J.:
Michel Toliver brings this action pro se pursuant to 42 U.S.C.
§ 1983 against Captain Pressley, Captain Banks, Correction Officer
Burton1, and Correction Officer McArdle.2

Mr. Toliver alleges that

the defendants violated his civil rights by subjecting him to
excessive force, failing to provide for his medical needs, and
destroying his property, all while he was detained at George R.
Vierno

Center

(“GRVC”)

on

Rikers

Island

in

May

2010.

The

1

Mr. Toliver refers to this defendant as “Burton” in the
second amended complaint, and as “Burton,” “Burtton,” “Buntton,”
and “Bentton” in his opposition papers; the City defendants refer
to this defendant as “Bunton.” In this report and recommendation,
he is refered to as “Burton.”
2

The parties have not provided the first names of the
individual defendants.
1

defendants concede that there is a dispute of material fact
pertaining to Mr. Toliver’s claim of excessive force against
Officer Burton.

The defendants move for partial summary judgment

pursuant to Rule 56 of the Federal Rules of Civil Procedure on all
other claims.

For the following reasons, I recommend that the

motion be granted in part and denied in part.
Background
A. Facts
The following facts are taken from the parties’ statements
pursuant to Rule 56.1 of the Local Rules of the Southern and
Eastern Districts of New York (“Local Civil Rules”) and the
accompanying affidavits and exhibits.

(See Defendants’ Statement

of Undisputed Facts Pursuant to Local Civil Rule 56.1 (“Def. 56.1
Statement”); Plaintiff’s Answer to Defendants’ Undisputed Facts to
Local Civil Rule 56.1 (“Pl. 56.1 Statement”); Plaintiff’s Second
Amended Complaint (“2d Am. Compl.”)).

The following facts are

viewed in the light most favorable to the plaintiff.3

3

Rule 56.1 requires a motion for summary judgment to be
accompanied by a statement of the material facts that the movant
believes undisputed, with citations to admissible evidence. Local
Civil Rule 56.1(a) & (d). The party opposing summary judgment must
submit, with his opposition, a statement responding to each of the
proposed undisputed facts, also with citations to admissible
evidence.
Local Civil Rule 56.1(b) & (d).
Where the court’s
independent review of the record yields evidence contrary to a
given assertion in the moving party’s Local Rule 56.1 statement, or
where a party fails to support an assertion by citing admissible
2

On May 11, 2010, Captain Pressley, Captain Banks, Officer
Burton, and Officer McArdle approached Mr. Toliver while he was
locked in his cell at GRVC.

(2d Am. Compl. at 7).4

The captains

ordered that Mr. Toliver's cell be opened and informed him that
they were going to conduct a “routine search.”
7).

(2d Am. Compl. at

The captains then ordered the officers to strip search Mr.

Toliver, and after he had re-dressed, the officers began to search
his cell.

(2d Am. Compl. at 7, 11).

During the search, Officer

Burton allegedly “tore up most of [Mr. Toliver’s] legal work . . .
and flushed it down the toilet[,] and threw the rest of [his] files
outside the cell so that sanitation could sweep it up and destroy
it.”

(2d Am. Compl. at 11; Def. 56.1 Statement, ¶ 5).

The legal

evidence, the court may reject that assertion.
Holtz v.
Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001). Conversely,
where the moving party’s Local Rule 56.1 statement is not
contradicted by the court’s review of the record, then the party’s
assertions will be “deemed admitted as a matter of law” for the
purposes of a summary judgment motion. See, e.g., Chitoiu v. UNUM
Provident Corp., No. 05 Civ. 8119, 2007 WL 1988406, at *1 n.1
(S.D.N.Y. July 6, 2007) (granting summary judgment against pro
se plaintiff who failed to respond to defendant’s Local Rule 56.1
statement of facts). Mr. Toliver agrees with the defendants’ Local
Rule 56.1 statement except for ¶ 27. (Pl. 56.1 Statement at 2).
For all other facts my review of the record did not reveal anything
to contradict the facts as set forth in the defendants’ Rule 56.1
Statement. Therefore, I have taken those facts, excluding ¶ 27, as
true.
4

As the plaintiff’s Second Amended Complaint is not fully
paginated, I refer to the page numbers on the Second Amended
Complaint assigned by the Case Management/Electronic Case Filing
(CM/ECF) system.
3

papers included sworn affidavits of witnesses in Mr. Toliver’s
criminal case, pictures, statements, copies of letters he had sent
to government agencies, transcripts, notices of claim, documents
from the City of New York, documents from a commissioner’s office,
and answers to complaints.

(Def. 56.1 Statement, ¶ 7).

When Mr.

Toliver complained, he was ordered to “‘shut up’ . . . or ‘[he]
would be dropped to the floor[,]’ handcuffed[,] and escorted
outside the cell.”

(2d Am. Compl. at 11).

Officer McArdle

allegedly threatened Mr. Toliver, telling him, “I will drop your
fucking Homo faggottay [sic], snitching Ass on the floor [if you]
say one more word.”

(2d Am. Compl. at 11).

After the search was completed, the captains ordered Mr.
Toliver to sit on the bed in his cell, and Captain Pressley ordered
Officer Burton to remove his handcuffs.

(2d Am. Compl. at 12).

Officer Burton then “punched and slapped [Mr. Toliver] in the face
[while he] was still handcuffed,” and “[n]either captain responded
to the assault.”

(2d Am. Compl. at 12).

According to Mr. Toliver,

the two blows occurred in quick succession.
¶ 12).

(Def. 56.1 Statement,

As a result of the incident, Mr. Toliver “suffered

significant bruises to [his] jaw and face”, and afterward, he was
denied immediate treatment for his injuries despite asking Captain
Banks, Captain Pressley, and several other officers for medical
attention.

(2d Am. Compl. at 12; Def. 56.1 Statement, ¶ 16-17).
4

Mr. Toliver asserts, “I am an overt homosexual and because of my
sexual orientation this was done to me along with my filing
complaints and grievances.”

(2d Am. Compl. at 12).

Mr. Toliver

ultimately received medical attention three days later, after he
met with investigators. (Def. 56.1 Statement, ¶ 17). At that time
he received antibiotic ointment and painkillers.

(Def. 56.1

Statement, ¶ 22).
B. Procedural History
Mr. Toliver filed his 2d Am. Compl. on February 17, 2012, and
in response to the defendants’ motion, the Honorable Sidney H.
Stein, U.S.D.J., issued an Order on January 14, 2013,

dismissing

the claims against the City of New York, the Commissioner of the
Department

of

Correction,

the

Chief

of

the

Department

of

Correction, and the Warden of GRVC.
On July 31, 2013, the remaining defendants, Captain Pressley,
Captain Banks, Officer McArdle, and Officer Burton, filed the
instant motion for partial summary judgment.
Discussion
A.

Standard of Review

Summary judgment is appropriate where “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); accord Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir.
5

2011). A dispute regarding a material fact is “genuine” where “the
evidence is such that a reasonable jury could return a verdict for
the nonmoving party,” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986); accord SCR Joint Venture L.P. v. Warshawsky, 559
F.3d 133, 137 (2d Cir. 2009), and a material fact is one that
“‘might affect the outcome of the suit under the governing law,’”
Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008) (quoting
Anderson, 477 U.S. at 248). “In deciding whether a genuine dispute
exists,

a

court

must

‘construe

the

facts

in

the

light

most

favorable to the non-moving party and must resolve all ambiguities
and draw all reasonable inferences against the movant.’” Seeman v.
Local 32B-32J, Service Employees Union, 769 F. Supp. 2d 615, 620
(S.D.N.Y. 2011) (quoting Dallas Aerospace, Inc. v. CIS Air Corp.,
352 F.3d 775, 780 (2d Cir. 2003)).
The moving party bears the initial burden of identifying those
portions of the record that demonstrate “the absence of a genuine
issue of material fact,” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986), following which the opposing party must come forward
with specific facts showing a genuine issue for trial. The parties
can support their claims with discovery materials, stipulations,
affidavits, or other evidence, see Fed. R. Civ. P. 56(c)(1)(A);
however, “‘only admissible evidence need be considered by the trial
court in ruling on a motion for summary judgment,’” Presbyterian
6

Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 264 (2d
Cir. 2009) (quoting Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir.
1997)).

Thus, the parties cannot rely on “‘conclusory allegations

or unsubstantiated speculation’” to support or defeat a motion for
summary judgment.

Jeffreys v. City of New York, 426 F.3d 549, 554

(2d Cir. 2005) (quoting Fujitsu Ltd. v. Federal Express Corp., 247
F.3d 423, 428 (2d Cir. 2001)).
Where a litigant is pro se, his pleadings should be read
liberally and interpreted “‘to raise the strongest arguments that
they suggest.’”

Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009)

(quoting Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001)).
Nevertheless, proceeding pro se does not relieve a litigant from
the usual requirements of summary judgment, and a pro se party’s
“bald

assertion,

completely

unsupported

by

evidence,

sufficient to overcome a motion for summary judgment.”

is

not

Geldzahler

v. New York Medical College, 746 F. Supp. 2d 618, 620 n.1 (S.D.N.Y.
2010) (internal quotation marks omitted).

But even where the

plaintiff has received notice pursuant to Local Rule 56.2 regarding
the requirements for opposing a summary judgment motion, the court
may conduct “‘an assiduous review of the record’ to determine if
there is any evidentiary support for his assertions of fact that do
not cite to evidence and to determine if there are any other
material issues of fact.”

Id. (quoting Lee v. Coughlin, 902 F.
7

Supp. 424, 429 (S.D.N.Y. 1995)).
B.

Excessive Force and Failure to Intervene

It is well settled in the Second Circuit that “‘personal
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)).

“Personal

involvement,” however, is not limited to direct participation in
the deprivation of rights at issue.

A defendant who occupies a

supervisory position may be “personally involved” in a deprivation
of constitutional rights in several ways, including: (1) directly
participating

in

the

infraction;

(2)

after

learning

of

the

violation, failing to remedy the wrong; (3) creating a policy or
custom under which unconstitutional practices occurred, or allowing
such a policy or custom to continue; (4) being grossly negligent in
managing subordinates who caused the unlawful condition or event;
or

(5)

demonstrating

“gross

negligence”

or

“deliberate

indifference” to the constitutional rights of an individual by
having actual or constructive notice of unconstitutional practices
and failing to act.

See Wright, 21 F.3d at 501 (citing Williams v.

Smith, 781 F.2d 319, 323–24 (2d Cir. 1986)); McCann v. Coughlin,
698 F.2d 112, 125 (2d Cir. 1983).
The defendants argue that Captain Pressley, Captain Banks, and
8

Officer McArdle are entitled to summary judgment on Mr. Toliver’s
claim of excessive force because they did not personally use force
and did not have a reasonable opportunity to intercede.

Mr.

Toliver’s position is that all the defendants were present and
heard Officer McArdle threaten and then assault him.
Compl. at 25-26).

(2d Am.

There is no dispute that Officer Burton was the

only individual who allegedly struck Mr. Toliver.

(Def. 56.1

Statement, ¶ 11).
Although Mr. Toliver does not claim that Captain Pressley,
Captain Banks, or Officer McArdle directly participated in the
alleged use of excessive force, “a correctional officer has an
affirmative duty to intercede on behalf of an inmate when he
witnesses a violation of that inmate’s [constitutional] rights by
. . . [his] fellow officers.”

Kee v. Hasty, No. 01 Civ. 2123, 2004

WL 807071, at *26 (S.D.N.Y. April 14, 2004); O’Neill v. Krzeminski,
839 F.2d 9, 11 (2d Cir. 1988).

However, liability attaches “only

[] if ‘(1) the officer had a realistic opportunity to intervene and
prevent the harm; (2) a reasonable person in the officer’s position
would know that the victim’s constitutional rights were being
violated; and (3) the officer does not take reasonable steps to
intervene.’”

Tavares v. City of New York, No. 08 Civ. 3782, 2010

WL 234974, at *4 (S.D.N.Y. Jan. 19, 2010) (quoting Jean-Laurent v.
Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008)); see also
9

Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994).

“Whether an

officer

capable

had

sufficient

time

to

intercede

or

was

of

preventing the harm being caused by another officer is a question
of fact,” unless the evidence shows that “a reasonable jury could
not possibly conclude otherwise.”

Anderson, 17 F.3d at 557.

Mr. Toliver alleges that Officer McArdle “worked along with
[Officer Burton], threatening plaintiff,” that Captain Banks “was
alerted and was made aware of the threats,” and that their failure
to intervene to stop both the threats and the physical attacks
violate Section 1983.

(Declaration of Plaintiff’s Opposition to

Defendants’ Motion [for] Partial Summary Judgment (“Pl. Opp.”) at
3).5

The defendants counter that they are entitled to summary

judgment because they had no realistic opportunity to prevent the
harm.
Mr. Toliver has failed to demonstrate that there is sufficient
evidence to permit a jury to conclude that the failure of Captain
Banks and Officer McArdle to intercede was a proximate cause of the
beating and that there was sufficient time for them to prevent the
harm.

After Mr. Toliver complained about the destruction of his

property, Officer Burton struck Mr. Toliver in the face twice in

5

Mr. Toliver states that he is prepared to dismiss this claim
against Captain Pressley. (Pl. Opp. at 3; Def. 56.1 Statement ¶
28).
10

succession. (Def. 56.1 Statement, ¶¶ 11-12). Mr. Toliver does not
contest that the two blows were sudden and provides no evidence
showing that there was enough time after the first blow to prevent
the second.

(Pl. 56.1 Statement at 2).

Therefore, Captain Banks,

and Officer McArdle are entitled to summary judgment on Mr.
Toliver’s excessive force and failure to intervene claim.

See

O’Neill, 839 F.2d at 11-12 (finding no failure to intervene claim
where excessive force based on repeated physical blows was not of
“sufficient duration to support a conclusion that an officer who
stood by without trying to assist the victim became a tacit
collaborator.”).
C.

Deliberate Indifference to Medical Needs

Mr.

Toliver

argues

that

all

the

defendants

violated

his

constitutional rights by failing to heed his cries for help and
denying him immediate medical attention after he was struck by
Officer Burton.

(Pl. Opp. at 6; Excerpts from Transcript of

Deposition of Michel Toliver dated June 21, 2013 (“Toliver Dep.”),
attached as Exh. A to Declaration of Joshua A. Lax dated July 31,
2013, at 111-12).

The defendants respond that Mr. Toliver cannot

show that he suffered from a serious medical condition or that they
acted with a sufficiently culpable state of mind.

(Defendants’

Memorandum of Law in Support of Their Motion to Partial Summary
Judgment at 6).
11

“To establish an unconstitutional denial of medical care, a
prisoner must prove deliberate indifference to [his] serious medical
needs.”

Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)

(alteration in original) (internal quotation marks omitted).

The

test for deliberate indifference has both objective and subjective
components.

First, as an objective matter, the alleged

Id.

deprivation must be “‘sufficiently serious.’”
v. Seiter, 501 U.S. 294, 298 (1991)).

Id. (quoting Wilson

“This standard contemplates

a [showing by the prisoner that his medical need was] a condition
of urgency, one that may produce death, degeneration, or extreme
pain.”

Lucas v. McCoy, No. 10 Civ. 9611, 2011 WL 6005164, at *2

(S.D.N.Y.

Nov.

30,

2011)

quotation marks omitted).

(alteration

in

original)

(internal

When the basis for the deliberate

indifference claim is that treatment was delayed, “the relevant
concern is the ‘particular risk of harm faced by a prisoner due to
the challenged deprivation of care, rather than the severity of the
prisoner’s underlying medical condition.’” Rodriguez v. City of New
York, 802 F. Supp. 2d 477, 482 (S.D.N.Y. 2011) (quoting Smith v.
Carpenter, 316 F.3d 178, 186 (2d Cir. 2003)).

The actual medical

consequences attributable to the delay in care are usually “‘highly
relevant

to

the

question

of

whether

the

denial

of

treatment

subjected the prisoner to a significant risk of serious harm.’” Id.
(quoting Smith, 316 F.3d at 187).
12

Second, the prisoner must show that the charged official acted
“with a sufficiently culpable state of mind,” meaning that the
“official kn[ew] of and disregard[ed] an excessive risk to inmate
health or safety.” Hathaway, 37 F.3d at 66 (citing Wilson, 501 U.S.
at 298, and Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

“[T]he

official must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he must
also draw the inference.”

Id. at 66 (internal quotation marks

omitted).
As to the objective element, Mr. Toliver alleges that he
suffered bruising, broken skin, a bloody nose, and a swollen jaw.
(Toliver Dep. at 111; 2d Am. Compl. at 7).

He alleges that he

requested medical attention “for days and did not get it.” (Toliver
Dep. at 111).

When Mr. Toliver finally received treatment three

days later, the medical examiner gave him painkillers and applied
antibiotic ointment to his skin.

(Toliver Dep. at 120).

Although

the plaintiff does not specifically complain of continuing pain
before being treated, it is reasonable to assume that he experienced
some pain.

A medical condition is deemed “serious” if it is “one

that has been diagnosed by a physician as requiring treatment or one
that is so obvious that a lay person would easily recognize the
necessity for a doctor’s attention.” Sonds v. St. Barnabas Hospital
Correctional Health Services, 151 F. Supp. 2d 303, 310 (S.D.N.Y.
13

2001) (quoting Hunt v. Uphoff, 199 F.3d 1220 (10th Cir. 1999)).
Thus, where “unnecessary and wanton infliction of pain” results, or
where the denial of treatment causes an inmate to suffer a life-long
handicap or permanent loss, the medical need may be considered
serious.

Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000);

Sonds, 151 F. Supp. 2d at 310.

Mr. Toliver fails to proffer

evidence of a sufficiently serious injury.

The minimal treatment

that he ultimately received -- treatment he does not complain about
-- leads to the conclusion that his injuries were not serious.

See

Dallio v. Hebert, 678 F. Supp. 2d 35, 60 (N.D.N.Y. 2009) (two black
eyes, bruising in kidney area, kick marks and open laceration on
knees not serious medical condition); Rodriguez v. Mercado, No. 00
Civ. 8588, 2002 WL 1997885, at *8 (S.D.N.Y. Aug. 28, 2002) (bruises
to head, back, and wrists sustained during excessive force incident
not sufficiently serious); Sonds, 151 F. Supp. 2d at 310 (holding
that bleeding finger with ripped skin does not constitute serious
medical condition). Furthermore, Mr. Toliver has not shown that any
harm was caused by the delay between the time of the incident and
his later treatment by medical staff.

See Rodriguez, 802 F. Supp.

2d at 482 (granting defendants’ summary judgment on the plaintiff’s
deliberate indifference claim where “plaintiff presents no evidence
that his condition worsened as a result of the three-day delay
between his request and receipt of medical attention”); Grant v.
14

Borroughs, No. 96 Civ. 2753, 2000 WL 1277592, at *4 (S.D.N.Y. Sept.
8. 2000) (even assuming plaintiff was in pain for two months,
plaintiff’s pain was not so severe as to constitute serious medical
condition).

For these reasons, I recommend that the defendants’

motion for summary judgment be granted on the plaintiff’s claim for
deliberate indifference to his medical needs.6
D.

Destruction of Property

Liberally construed, Mr. Toliver’s complaint alleges that
Officer

Burton

committed

multiple

constitutional

violations

pertaining to the destruction of his property, including (1) denial
of access to the courts based on the alleged destruction of his
legal documents, (2) retaliation for engaging in constitutionally
protected actions, and (3) deprivation of personal property without
due process.
1.

Denial of Access to Courts

“It is [] established beyond doubt that prisoners have a
constitutional right of access to the courts.” Bounds v. Smith, 430
U.S. 817, 821 (1977).

The active interference of prison officials

in the preparation or filing of legal documents may constitute
6

Because I recommend that defendants be granted summary
judgment on the failure to intervene and denial of medical need
claims, there is no need to address the question of qualified
immunity. See Barrett v. Orange County Human Rights Commission,
194 F.3d 341, 344 (2d Cir. 1999) (finding immunity no longer of
consequence because individual defendants found not to have
infringed plaintiff’s rights).
15

denial of access.

See Lewis v. Casey, 518 U.S. 343, 350 (1996).

However, a prisoner must show an actual injury in order to sustain
such a claim, id. at 349, and actual injury occurs only when “the
loss of [the plaintiff's] materials prejudiced his ability to pursue
a

legal

claim.”

Santiago

v.

New

York

City

Department

of

Corrections, No. 97 Civ. 9190, 2003 WL 1563773, at *5 (S.D.N.Y.
March 6, 2003); see also Davis v. Goord, 320 F.3d 346, 352 (2d Cir.
2003). Accordingly, to survive summary judgment, the plaintiff must
introduce evidence to establish that his ability to pursue some
criminal or civil case was hindered by the destruction of his legal
papers.

See, e.g., Thomas v. Thomas, No. 97 Civ. 4541, 2000 WL

307391, at *3 (S.D.N.Y. March 23, 2000).
Mr. Toliver fails to describe a legal injury resulting from the
destruction of his property. He merely states that “the only reason
someone in defendants’ position would logically destroy legal
documents

along

with

other obvious property would be to hinder

. . . litigation and . . . the progress of my criminal matter.”
(Pl. Opp. at 8).

Such conclusory statements are not evidence that

Mr. Toliver suffered an actual injury sufficient to support a claim
of denial of access to the courts.
2.

Retaliation

Mr. Toliver alleges that the defendants destroyed his property
in retaliation for his filing complaints and grievances against
16

other correction officers at Rikers Island.

Such actions are

prohibited under the Constitution because “retaliatory actions may
tend to chill individuals’ exercise of constitutional rights.” ACLU
v. Wicomico County, 999 F.2d 780, 785 (4th Cir. 1993).
Courts approach such retaliation claims “with skepticism and
particular care,” since “virtually any adverse action taken against
a prisoner by a prison official -- even those not rising to the
level of a constitutional violation -- can be characterized as a
constitutionally proscribed retaliatory act.” Dawes v. Walker, 239
F.3d 489, 491 (2d Cir. 2001), overruled on other grounds by
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).

To survive

summary judgment, a plaintiff alleging retaliation must show “(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.”

Id. at 492; see also Winthrow v. Donnelly, 356 F.

Supp. 2d 273, 275 (W.D.N.Y. 2005) (applying Dawes standard to
summary judgment motion); Contes v. Porr, 345 F. Supp. 2d 372,
377-78 (S.D.N.Y. 2004) (same).
Mr. Toliver has satisfied the first Dawes factor because a
prisoner’s filing of lawsuits or administrative grievances is
constitutionally protected.

See Bounds, 430 U.S. at 821 (holding

that access to courts is an established constitutional right).
17

In

addition, Mr. Toliver also meets the second Dawes factor.

Although

a routine cell search may not give rise to a retaliation claim, the
confiscation or destruction of property taken at the time of the
search may.

Smith v. City of New York, No. 03 Civ. 7576, 2005 WL

1026551, at *3 (S.D.N.Y. May 3, 2005) (“[R]etaliatory destruction
of

a

prisoner's

personal

property

has

previously

been

found

substantial enough to qualify as an adverse action.”); Soto v.
Iacavino, No. 01 Civ. 5850, 2003 WL 21281762, at *2 (S.D.N.Y. June
4,

2003)

(holding

deliberately

that

destroyed

allegation
inmate's

that

property

corrections
in

officers

retaliation

for

grievances stated viable claim).
To satisfy the third prong, the plaintiff must establish a
casual connection between the filing of his lawsuits and the
retaliatory event.

“The causal connection must be sufficient to

support the inference ‘that the speech played a substantial part in
the [] adverse [] action.’”

Diesel v. Town of Lewisboro, 232 F.3d

92, 107 (2d Cir. 2000) (quoting Ezekwo v. New York City Health &
Hospital Corp., 940 F.2d 775, 780-81 (2d Cir. 1991)).

Here, Mr.

Toliver’s allegations are conclusory and his pleadings contain few,
if any, specific facts relating to the defendants’ involvement in
the destruction of his personal property.

In his Second Amended

Complaint, Mr. Toliver asserts cryptically that “this” was done to
him because of his sexual orientation and his “filing of complaints
18

and grievances.”

(2d Am. Compl. at 12).

Mr. Toliver neither cites

to specific complaints and grievances nor provides any evidence that
might establish a causal connection between the filing of grievances
and the destruction of his property.

Since there is insufficient

evidence supporting an inference of retaliatory motive, Mr. Toliver
cannot maintain a retaliation claim for the destruction of his
property.
3.

Denial of Due Process

Whether negligent or deliberate, the destruction of an inmate’s
property caused by a prison officer’s unauthorized conduct does not
give rise to a claim under the Due Process Clause if the state
provides that inmate with an adequate postdeprivation remedy.
Hudson

v.

Palmer,

468

U.S.

517,

533–36

(1984).

It

is

well

established that New York provides inmates with the opportunity for
a meaningful postdeprivation hearing through state law causes of
action for “negligence, replevin, or conversion which could fully
compensate [the plaintiff] for his alleged property loss.”

Cook v.

City of New York, 607 F. Supp. 702, 704 (S.D.N.Y. 1985); see also
Dove v. City of New York, No. 99 Civ. 3020, 2000 WL 342682, at *3
(S.D.N.Y. March 30, 2000); Smith v. O’Connor, 901 F. Supp. 644, 647
(S.D.N.Y. 1995).

Mr. Toliver does not claim that he was denied

adequate postdeprivation procedures by which to seek compensation
for the destruction of his property.
19

“Plaintiff's failure to take

advantage of the state [law] does not convert his cause of action
into a constitutional due process claim.”

Smith, 901 F. Supp. at

647; see also Morello v. James, 810 F.2d 344, 347 (2d Cir. 1987)
(“[S]ection 1983 [can]not be made a vehicle for transforming mere
civil tort claims into constitutional injuries.”).

Therefore, Mr.

Toliver cannot sustain a claim for violation of his due process
rights.
E.

State Law Claims

The defendants seek dismissal of pendant state law claims
because they allege Mr. Toliver failed to comply with New York State
statutory requirements.

New York law requires that, in order for

an action to be brought against the City of New York or any
employee, a notice of claim must be served on the municipality
within 90 days after the claim arose.
50-e(1)(a) & 50-k(6).

N.Y. Gen Mun. Law §§

“Federal courts do not have jurisdiction to

hear state law claims brought by plaintiffs who have failed to
comply with the notice of claim requirement, nor can a federal court
grant a plaintiff permission to file a late notice of claim.”
Dingle v. City of New York, 728 F. Supp. 2d 332, 348-49 (S.D.N.Y.
2010).

“The burden is on the plaintiff to demonstrate compliance

with the Notice of Claim requirement.”

Horvath v. Daniel, 423 F.

Supp. 2d 421, 423 (S.D.N.Y. 2006).
Mr. Toliver responds that he filed several Notices of Claim
20

with the City Comptroller’s office, and he provided a copy of one
such Notice with his Second Amended Complaint.

Thus, there is a

genuine issue of material fact pertaining to whether he successfully
filed Notices of Claim.

As the only federal cause of action that

survives summary judgment is Mr. Toliver’s claim for excessive force
against Officer Burton, the defendants’ motion to dismiss any state
law claims arising from that claim should be denied.

There is no

federal supplemental jurisdiction over any other potential state
claims

because

they

would

not

rise

from

controversy” as the remaining federal claim.

the

same

“case

or

28 U.S.C. § 1367(a);

United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966)
(exercise of supplemental jurisdiction proper where “state and
federal claims [] derive from a common nucleus of operative fact”).
Conclusion
For the foregoing reasons, I recommend that the defendants’
motion for partial summary judgment be granted in part and denied
in part.

Specifically, I recommend that the motion be granted as

to (1) Mr. Toliver’s excessive force and failure to intervene claims
as against Captain Pressley, Captain Banks, and Officer McArdle, (2)
his deliberate indifference to medical need claim as against all
defendants, and (3) his destruction of property claim as against all
defendants.

However, I recommend that the motion be denied as to

state law claims insofar as they relate to his claim of excessive
21

force by Officer Burton.
Pursuant to 28 U.S.C.

636(b) (1) and Rules 72, 6(a), and 6(d)

§

of the Federal Rules of Civil Procedure,

the parties shall have

fourteen (14) days from this date to file written objections to this
Report and Recommendation.

Such objections shall be filed with the

Clerk of the Court, with extra copies delivered to the chambers of
the Honorable Sidney H.

Stein,

U. S. D. J.,

Room 1010,

and to the

chambers of the undersigned, Room 1960, 500 Pearl Street, New York,
New York 10007.

Failure to file timely objections will preclude

appellate review.
Respectfully submitted,

a

~

.
\
Dated:

AMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE

New York, New York
December 10, 2012

Copies mailed this date:
Michel Toliver
10-A-4565
Shawangunk Correctional Facility
P.O. Box 700
Walkill, NY 12589
Joseph A. Marutollo, Esq.
Joshua A. Lax, Esq.
Assistant Corporation Counsel
100 Church Street
New York, New York 10007

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