Rodriguez v. City of New York et al

Filing 38

ORDER for 33 Report and Recommendations. For the reasons stated above, this Court adopts Judge Maas's recommendation that Defendants' motion to dismiss be denied with respect to (1) Plaintiff's Eighth Amendment excessive forc e claim against Officer Allen, Officer Williams, Captain Aldmodovar, and Captain Myke; and (2) Plaintiff's First Amendment retaliation claim against Officer Allen, Officer Williams, Captain Aldmodovar, Captain Myke, and Captain Williams . Plaintiff's remaining claims are dismissed. The Clerk of the Court is directed to terminate the motion (Dkt. No. 26) and to mail a copy of this Order to Tyler Rodriguez, 149 Stephens Ave., Apt. 1, Bronx, New York 10473. Thi s Court will conduct a conference in this matter on October 6, 2016, at 10:45 a.m. in Courtroom 705 of the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, New York. (As further set forth in this Order) (Signed by Judge Paul G. Gardephe on 9/28/2016) (kl)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TYLER RODRIGUEZ,

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATEFILED:

Vz97/Z

Plaintiff,

ORDER
- against 14 Civ. 8647 (PGG) (FM)
CITY OF NEW YORK, ANTONIO CUIN,
Warden of Manhattan Detention Complex NYC Dept. of Corr., CAPTAIN
ALMODOVAR, Shield # 103 8,
CORRECTION OFFICER WILLIAMS,
Shield# 12782, CAPTAIN MYKE, Shield#
416, CORRECTION OFFICER ALLEN,
Shield # 72219, CAPTAIN WILLIAMS,
Shield # 820,
Defendants.

PAUL G. GARDEPHE, U.S.D.J.:
Prose Plaintiff Tyler Rodriguez brings this action, pursuant to 42 U.S.C. § 1983,
against the City ofNew York (the "City"); Antonio Cuin, Warden of the Manhattan Detention
Complex ("MDC"); Captains Almodovar, Myke, and Williams; and Corrections Officers Allen
and Williams (collectively, the "Defendants"). Plaintiff- formerly an inmate at the MDCalleges that Defendants violated his constitutional rights by exposing him to pepper spray,
threatening to harm him if he reported an assault committed by corrections officers, and
transferring him to another facility after he filed a grievance. (Cmplt. (Dkt. No. 1) 1; Am. Cmplt.

1

The Complaint is spread over four docket entries. (See Dkt. Nos. 1-1; 1-2; 1-3; 1-4) This
Order cites to both the Complaint and the Amended Complaint, because the Amended Complaint
submitted by Plaintiff appears to be missing pages, including those that describe the assault that
is at the heart of Plaintiffs case.

(Dkt. No. 17)) Defendants have moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt.
No. 26)
On November 30, 2015, this Court referred Defendants' motion to Magistrate
Judge Frank Maas for a Report and Recommendation ("R&R"). (Dkt. No. 32) On August 2,
2016, Judge Maas issued a 28-page R&R recommending that Defendants' motion to dismiss be
granted in part and denied in part. (Dkt. No. 33) This Court will adopt the R&R as outlined
below.
BACKGROUND 2

On September 10, 2014, while assigned to a sanitation work detail at the MDC,
Rodriguez witnessed corrections officers assaulting an unidentified inmate (the "Inmate").
(Crnplt. (Dkt. No. 1-1)) At about 4:45 p.m. that day, Rodriguez was instructed to report for work
on the third floor of the MDC. (Id. at 1)3 As Rodriguez filled a mop bucket in a closet, he
"hear[d] some yelling ... and []saw about 4 correction[s] officers an[d] a capt[a]in an[d] [the
Inmate]." (Id.) Rodriguez alleges that the officers involved were Captain Almodovar, Officer
Williams, Officer Allen, Captain Myke, and Officer Handly, a non-party to this action. (See
Cmplt. (Dkt. No. 1-1) at 1; see also Am. Cmplt. (Dkt. No. 17) at 1-2, 4) Rodriguez states that he

2

The Court's factual statement is drawn from the Complaint and Amended Complaint. See
Cmplt. (Dkt. No. 1-1); Arn. Cmplt. (Dkt. No. 17); see also Sathianathan v. Smith Barney, Inc.,
No. 04 Civ. 7122 (DAB) (FM), 2006 WL 538152, at *13 (S.D.N.Y. Feb. 24, 2006), report and
recommendation adopted as modified, 2007 WL 576097 (S.D.N.Y. Feb. 21, 2007) ("[P]ro se
pleadings may be read together to determine whether a plaintiff conceivably could be entitled to
relief."). Rodriguez's factual allegations are presumed true for purposes ofresolving
Defendants' motion to dismiss. See Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 237
(2d Cir. 2007).
3
All references to page numbers in this Order are as reflected in this District's Electronic Case
Filing system.
2

attempted to leave the closet, but that "Handly ... told me to get back in there[,] an[ d] left the
door ajar[]." (Cmplt. (Dkt. No. 1-1) at 1)
Rodriguez heard more yelling, so he "looked through a square hole in the door ...
to see what[] [was] happening." (Id.) Rodriguez heard Captain Myke yell, "take the hand cuffs
off this wanna be gang[s]ter[,] he wanna be a [tough] [g]uy."4 (Id.) The Inmate pleaded,
"[D]on't take them off." (Id.) Ignoring the Inmate's pleas, Captain Almodovar removed the
handcuffs and told the Inmate, "[Y]ou uncuffed[,] now pop off." (Id.) The Inmate begged the
officers to "put the handcuffs back on," adding "you got it[,] you got it[,] you win." (Id.)
Captain Myke responded, "[P]ut the hand cuffs back on this punk. I knew this pussy was all
talk." (Id.) Officer Williams then said, "[Y]ou punk ass bitch[,] talking all that shit and you
ain[']t doin[g] shit." (Id. at 2) Williams then "punched [the] Inmate in his face[,] .. and [he] fell
to the floor." (Id.)
Although Rodriguez's view was obstructed, "[i]t sound[ ed] like they were just
hit[t]ing him an[d] hit[t]ing him." (Id.) The Inmate yelled, "Stop[,] stop[,] please[,] please."
(Id.) The Inmate then threatened to sue the officers. One of the officers responded that he
"knew [the Inmate] was going to say that." (Id.) Rodriguez then "hear[d] them beating on him
more." (Id.) The Inmate cried, "I[']m not g[o]nna say anything[.] I['ll] hold it down[.] I['ll]
hold it down[,] please. [T]hat[']s my word[.] I swear to god[.] I swear to my [d]ead
gran[d]mother[.] I swear." (Id.) Captain Myke retorted, "[Y]ou gonna hold it down now[.]
Spray him like a roach." (Id.) Rodriguez "hear[d] the Inmate crying an[d] [it] sound[ed] like he
was chok[]ing." (Id.)

4

The Complaint refers to "a capt[a]in," and not to Captain Myke by name. (Cmplt. (Dkt. No. 11) at 1) However, Plaintiff refers to Captain Almodovar by name throughout his narrative, and
Captain Myke was the only other supervisor present. (See R&R (Dkt. No. 33) at 3 n.4)
3

After the spray was used, Rodriguez started to "cough an[d] and cough." (Id. at
3) Rodriguez "took 3 pumps of [his asthma inhaler]," and "started to choke on [his] spit." (Id.)
He "took [his] shirts off fast[,] wet [his] white T[-]shirt, [and] put it around [his] mouth." (Id.)
Unable to bear the fumes from the spray any longer, Rodriguez "banged on the door of the closet
and pushed it open[]." (Id.) The Defendants then directed Rodriguez to go to the "3-2 cells."
(Id.)
The next day, September 11, 2014, Rodriguez was serving sandwiches to other
inmates on the second floor of the MDC. Officer Allen told Rodriguez to "hurry up[,] keep it
mov[]ing." (Id. at 5) After Rodriguez responded that he was 'just doing [his] job," Allen told
Rodriguez, "I don[']t give a fuck[.] I've been doing this shit for years[,] an[d] I already know
about you[.] [S]o if you do[n't] want to take the [n]ext bus to Rikers[,] an[d] [have] good time
taken away[,] I su[gg]est you keep it [m]ov[ Jing before I write [your] ass up." (Id.) Later that
afternoon, Captain Almodovar approached Rodriguez and said, "[W]hat is this I hear you talking
... about what happen[ ed] yest[e]rday[?] . . . [I]f I [were] you[,] I would shut the fuck up an[ d]
keep [your] mouth shut [be]cause if it gets back to me that you [are] talking there[']s going to be
a problem. So keep [your] mouth shut about what happen[ ed] [be ]cause the same shit can
happen to you." (Id. at 7)
On September 12, 2014, Captain Williams5 approached Rodriguez and asked
whether he would like to "go see the psychiatrist." (Id. at 9) On the way to the psychiatrist,
Captain Williams told Rodriguez that he had heard that Rodriguez was having a problem with a
corrections officer, and asked whether one of his staff members had threatened Rodriguez. (Id.)

5

Captain Williams - not to be confused with Officer Williams - is not alleged to have been
present during the September 10 assault.
4

Rodriguez told Captain Williams that he was "verbally threatened by a correction[ s] officer"
after seeing something he "was not supposed to see." (Id.) Captain Williams told Rodriguez that
the officers who had committed the assault would "[d]o everything in their power" to say that
Rodriguez was not present at the assault, and would "try to cover their asses for the safety of
their job[s]." (Id. at 9-10) Captain Williams "tr[i]ed to have [Rodriguez] write a statement ...
and say what happened." (Id. at 10) When Rodriguez refused to give a written statement,
Captain Williams "looked very mad." (Id. at 11)
Within two weeks of these events, Rodriguez filed a grievance at the MDC. A
short time later, Rodriguez was transferred to Rikers Island. (Cmplt. (Dkt. No. 1-4) at 1)
Rodriguez alleges that as a result of the events described in the Complaint, he is seeing a
psychiatrist, taking medication, having nightmares and flashbacks, and suffering from
depression. (Am. Cmplt. (Dkt. No. 17) at 11)
Rodriguez's original complaint, dated September 25, 2014, was received by this
District's Pro Se Office on October 28, 2014. (Cmplt. (Dkt. No. 1-4)) On March 17, 2015, this
Court issued an order directing Rodriguez to amend the original complaint to identify the Doe
Defendants. (Dkt. No. 15) On April 2, 2015, Rodriguez filed an Amended Complaint. (Dkt.
No. 17) On October 9, 2015, Defendants filed a motion to dismiss. 6 (Dkt. No. 26) On
November 30, 2015, this Court referred the motion to Magistrate Judge Maas for an R&R. (Dkt.
No. 32) On August 2, 2016, Judge Maas issued an R&R, recommending that Defendants'
motion be granted in part and denied in part. (Dkt. No. 33)

6

Rodriguez has not filed an opposition to the motion to dismiss. (See Dkt. No. 30) "This
Court, therefore, will assess the merits of the defendant's motion without any input from the
plaintiff." Parris v. Attorney Gen., No. 02 CIV.4225 (GBD), 2003 WL 367842, at *1 (S.D.N.Y.
Feb. 19, 2003).

5

Judge Maas concluded that, read liberally, Rodriguez's pleadings asserted claims
for (1) excessive force under the Eighth Amendment; (2) violations of procedural due process
under the Fourteenth Amendment; (3) unlawful retaliation under the First Amendment; and (4)
intentional infliction of emotional distress under New York state law. (R&R (Dkt. No. 33) at 7)
Judge Maas recommended that Defendants' motion to dismiss be granted except as to (1)
Rodriguez's Eighth Amendment claim against Officers Allen and Williams and Captains
Almodovar and Myke; and (2) Rodriguez's the First Amendment retaliation claim against
Officers Allen and Williams and Captains Almodovar, Myke, and Williams. (Id. at 27) Judge
Maas's R&R gave notice that any objections were to be filed within fourteen days from service
of the R&R, and that "the failure to file ... timely objections will result in a waiver of those
objections for purposes of appeal." (Id. at 28)
On August 31, 2016, Defendants filed objections to the R&R, arguing that
Defendant's motion to dismiss should be granted in its entirety. (Dkt. No. 37) Plaintiff has
submitted no objections to the R&R.

DISCUSSION
I.

LEGAL STANDARD

A.

Review of Magistrate Judge's Report and Recommendation
In evaluating a magistrate judge's R&R, a district court "may accept, reject, or

modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28
U.S.C. § 636(b)(l). Under 28 U.S.C. § 636(b)(l) and Fed. R. Civ. P. 72(b), a party may submit
objections to the magistrate judge's R&R. Any objections must be "specific" and "written," and
must be made "[w]ithin 14 days after being served with a copy of the recommended disposition."
Fed. R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(l).

6

Where, as here, a party submits timely objections to an R&R, 7 "[the district judge]
shall make a de novo determination of those portions of the report or specified proposed findings
or recommendations to which objection is made." 28 U.S.C. § 636(b)(l); see also Fed. R. Civ.
P. 72(b)(3). "However, when a party makes only conclusory or general objections, or simply
reiterates his original arguments, the Court reviews the Report and Recommendation only for
clear error." Renelique v. Doe, No. 99 Civ. 10425 (LTS) (HBP), 2003 WL 23023771, at *l
(S.D.N.Y. Dec. 29, 2003). A decision is "clearly erroneous" when, "upon review of the entire
record, [the court is] left with the definite and firm conviction that a mistake has been
committed." United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006) (quotation marks and
citation omitted).
Here, Defendants have made specific objections to Judge Maas' findings
concerning Rodriguez's Eighth Amendment excessive force claim and First Amendment
retaliation claim. Accordingly, the portions of the R&R addressing those claims will be
reviewed de novo. The remainder of the R&R will be reviewed for clear error. See Covington
v. Warden, Five Points Corr. Facility, No. 11 Civ. 8761 (AT) (FM), 2016 WL 3407845, at *1
(S.D.N.Y. June 16, 2016) ("The court may adopt those portions of the R & R to which no
objection is made 'as long as no clear error is apparent from the face of the record."' (quoting
Oquendo v. Colvin, No. 12-cv-4527-RA-RLE, 2014 WL 4160222, at *2 (S.D.N.Y. Aug. 19,
2014))).

7

Judge Maas issued his R&R on August 2, 2016. (Dkt. No. 33) On August 19, 2016, this Court
extended Defendants' time to file objections until August 31, 2016. (Dkt. No. 35) Defendants
filed their objections on August 31, 2016. (Dkt. No. 36)

7

B.

Motion to Dismiss Standard

Defendants have moved to dismiss the Amended Complaint for failure to state a
claim under Fed. R. Civ. P. 12(b)(6). "To 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."'
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). "In considering a motion to dismiss ... the court is to accept as true all facts
alleged in the complaint," Kassner, 496 F.3d at 237 (citing Dougherty v. Town ofN. Hempstead
Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir. 2002)), and must "draw all reasonable
inferences in favor of the plaintiff" Id. (citing Fernandez v. Chertoff, 471F.3d45, 51 (2d Cir.
2006)).
A complaint is inadequately pled "if it tenders 'naked assertion[ s]' devoid of
'further factual enhancement,"' Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557), and
does not provide factual allegations sufficient "to give the defendant fair notice of what the claim
is and the grounds upon which it rests." Port Dock & Stone Corp. v. Oldcastle Ne, Inc., 507 F.3d
117, 121 (2d Cir. 2007) (citing Twombly, 550 U.S. at 555).
Because Rodriguez is proceeding pro se, this Court is required to read his
pleadings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("A document filed prose is
'to be liberally construed."') (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Accordingly,
this Court will construe Rodriguez's pleadings '"to raise the strongest arguments that they
suggest."' Fulton v. Goord, 591F.3d37, 43 (2d Cir. 2009) (quoting Green v. United States, 260
F.3d 78, 83 (2d Cir. 2001)). However, "the court need not accept as true 'conclusions oflaw or
unwarranted deductions of fact."' Whitfield v. O'Connell, No. 09 Civ. 1925 (WHP), 2010 WL

8

1010060, at *4 (S.D.N.Y. Mar. 18, 2010) (quoting First Nationwide Bank v. Gelt Funding Corp.,
27 F.3d 763, 771 (2d Cir. 1994)).
II.

DEFENDANTS' OBJECTIONS REGARDING THE
EIGHTH AMENDMENT EXCESSIVE FORCE CLAIM

The R&R concludes that Rodriguez "pleaded facts sufficient to state an Eighth
Amendment excessive force claim based on a transferred intent theory." (R&R (Dkt. No. 33) at
12) In their objections to the R&R, Defendants complain that, "[a]lthough prose complaints
should be liberally construed to assert otherwise unartfully pled causes of action, nowhere in
plaintiff's complaint does he allege the facts recited in the [R&R]." (Def. Obj. Br. (Dkt. No. 37)
at 8) Defendants further contend that the R&R' s analysis is internally inconsistent, and that
Judge Maas erred in concluding that Rodriguez had pleaded sufficient facts to state a claim for
excessive force. (Id. at 10-13)
A.

Applicable Law

"The Eighth Amendment, which applies to the states through the Due Process
Clause of the Fourteenth Amendment, prohibits the infliction of 'cruel and unusual
punishments,' including the 'unnecessary and wanton infliction of pain."' Sims v. Artuz, 230
F .3d 14, 20 (2d Cir. 2000) (internal citations omitted). "A claim of cruel and unusual
punishment ... has two components - one subjective, focusing on the defendant's motive for his
conduct, and the other objective, focusing on the conduct's effect." Id. (citing Hudson v.
McMillian, 503 U.S. 1, 7-8 (1992); Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999)).
"Subjectively, the plaintiff must demonstrate that the defendant acted wantonly. The essential
question is 'whether force was applied in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm."' Virella v. Pozzi, No. 05 Civ. 10460 (RWS), 2006
WL 2707394, at *3 (S.D.N.Y. Sept. 20, 2006) (citing Hudson, 503 U.S. at 7) (internal citation
9

omitted). "Objectively, the plaintiff must show that the violation is 'sufficiently serious or
harmful."' Id. (quoting United States v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999)). "[A] claim of
excessive force may be established even if the victim does not suffer 'serious' or 'significant'
injury, provided that the amount of force used is more than 'de minimis,' or involves force that is
'repugnant to the conscience of mankind." Walsh, 194 F.3d at 47-48 (quoting Estelle, 429 U.S.
at 106; Hudson, 503 U.S. at 9-10) (internal citation omitted).
B.

Defendants' Objections
1.

The Magistrate Judge's Interpretation
of Plaintiff's Factual Allegations

Defendants contend that Judge Maas "erroneously inserted material facts into the
Complaint in order to find an adequately pled excessive force claim." (Def. Obj. Br. (Dkt. No.
37) at 7) Specifically, Defendants claim that Judge Maas improperly inferred that Plaintiff had
pled that (1) he "inhaled ... 'spray' used on another inmate"; (2) "that the spray was a 'chemical
agent"'; and (3) "that he 'took off his shirt, wet it, and put it around his mouth in an attempt to
counteract the effects of the spray.'" (Id. at 8-9) Defendants argue that the "'spray' could just as
easily be construed to be a spray of water as oppose[d] to any 'chemical agent.'" (Id. at 9 n.2)
As noted above, this Court "must construe [Plaintiffs pleadings] liberally, 'to
raise the strongest arguments that [they] suggest."' Fulton, 591 F.3d at 43 (quoting Green, 260
F.3d at 83). "This is especially true when dealing with civil rights complaints like this one."
Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001).
Here, Rodriguez alleges that, after the corrections officers "sprayed [the Inmate],"
Rodriguez heard the Inmate "crying an[d] sound like he was chok[]ing." (Cmplt. (Dkt. No. 1-1)
at 2) Rodriguez then "started to cough an[d] cough," so he "took [his] [a]s[t]hma pump out that
[he] carr[ies] an[d] took 3 pumps." (Id. at 3) Rodriguez then "started to choke on [his] spit,"
10

"took [his] shirts off fast[,] wet [his] white [t-]shirt[, and] put it around [his] mouth." (Id.)
Given these allegations, and the obligation to read them liberally, this Court perceives no error in
Judge Maas's interpretation of Rodriguez's factual narrative. Although Rodriguez does not
describe the precise nature of the spray, there is an ample basis from which to infer that the
corrections officers used some type of chemical agent or pepper spray, including the following:
(1) Captain Myke ordered that the Inmate be sprayed "like a roach"; (2) Rodriguez heard the
Inmate "crying an[d] sound like he was chok[]ing" after being sprayed; (3) the spray caused
Rodriguez to suffer a coughing fit that required him to use his asthma inhaler multiple times; and
(4) Rodriguez reacted to the spray's fumes by wrapping a wet t-shirt around his face, in an
obvious effort to block the fumes from the spray. (See Cmplt. (Dkt. No. 1-1) at 2-3) Given
these allegations, Judge Maas's reading of Rodriguez's pleadings was reasonable.

2.

The Consistency of the Magistrate Judge's
Findings Regarding the Force that Was Used

Defendants contend that the R&R is internally inconsistent, because Judge Maas
found that the Defendants' "alleged conduct ... rose to the level of malicious and sadistic
[conduct necessary] to satisfy the subjective element of an excessive force claim," while also
concluding that the "same conduct was not sufficiently outrageous to rise to the level of the state
tort action of intentional infliction of emotional distress." (Def. Obj. Br. (Dkt. No. 37) at 10)
There is no inconsistency in Judge Maas's findings, which are dictated by the different standards
that apply to each claim.
In Harrell v. Cty. ofNassau, No. 10-CV-5894 (MKB), 2013 WL 5439137
(E.D.N.Y. Sept. 27, 2013), plaintiff alleged that he had been assaulted by the police and brought
claims for, inter alia, excessive force and intentional infliction of emotional distress. Harrell,
2013 WL 5439137, at *I. In (1) denying defendants' motion for summary judgment on the
11

excessive force claim, and (2) granting defendants' motion on the intentional infliction of
emotional distress claim, the court stated:
In New York, a claim for intentional infliction of emotional distress is "extremely
disfavored," and "[ o]nly the most egregious conduct has been found sufficiently
extreme and outrageous to establish" such a claim. Medcalfv. Walsh, No. 12
Civ. 509(PAE), 2013 WL 1431603, at *7 (S.D.N.Y. Apr. 9, 2013); see also
Tebbenhoffv. Elec. Data Sys. Corp., 244 F. App'x 382, 384 (2d Cir. 2007)
(observing that New Yark's standard for extreme and outrageous conduct is
"rigorous, and difficult to satisfy"). The "extreme and outrageous conduct"
element requires that the conduct rise to the level of being "so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious and utterly intolerable in a civilized
society." Rubinow v. Boehringer Ingelheim Pharms., Inc., 496 F. App'x 117, 119
(2d Cir. 2012) (citation and internal quotation marks omitted); see also Margrabe
v. Sexter & Warmflash, P.C., 353 F. App'x 547, 550 (2d Cir. 2009) ("[C]ourts are
reluctant to allow recovery under the banner of intentional infliction of emotional
distress absent a deliberate and malicious campaign of harassment or intimidation.
. . . [A] court may decide whether alleged conduct is sufficiently outrageous as a
matter oflaw." (citations and internal quotation marks omitted)); Lan Sang v.
Ming Hai, No. 12 Civ. 7103, 2013 WL 3215458, at *16 (S.D.N.Y. June 27, 2013)
('" [T]he rigor of the outrageousness standard is well established.' Conduct must
have been 'so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized society.'" (citations omitted)).
Id. at* 13.
Given the extremely high pleading hurdle that applies to an intentional infliction
of emotional distress claim, it is not surprising that Judge Maas recommends dismissal of that
claim while simultaneously recommending that the excessive force claim be permitted to
proceed. Having reviewed the R&R and the record, this Court finds no error in that
recommendation.

3.

Whether the Magistrate Judge Relied on
Force Employed Against Another Inmate

Defendants contend that the R&R "erroneously considered all of the force alleged
to have been used ... as opposed to just the portion of the assault that the [R&R] concluded

12

affected [Plaintiff] (i.e., the "spray")." (Def. Obj. Br. (Dkt. No. 37) at 12-13) Defendants argue
that Judge Maas should "have concluded ... that the minimal amount of force arguably used on
plaintiff was not more than de minim[i]s." (Id. at 13)
In concluding that Plaintiff had pled sufficient facts to satisfy the objective prong
of an excessive force claim, Judge Maas relied on Plaintiffs allegation "that his inhalation of the
chemical agent used on the other inmate caused him to choke and have an asthmatic episode."
(R&R (Dkt. No. 33) at 10) While noting that Rodriguez had made "limited allegations of
physical injury" (id. at 11-12), Judge Maas concluded that Plaintiffs allegations concerning the
effect of the spray on him were sufficient at the motion to dismiss stage. (Id.)
"'The Eighth Amendment's prohibition of "cruel and unusual" punishments
necessarily excludes from constitutional recognition de minimis uses of physical force, provided
that the use of force is not of a soli repugnant to the conscience of mankind."' Wilkins v. Gaddy,
559 U.S. 34, 37-38 (2010) (quoting Hudson, 503 U.S. at 9-10). "But 'celiain actions, including
the malicious use of force to cause harm, constitute Eighth Amendment violations~ se. '"
Harris v. Miller, 818 F.3d 49, 64 (2d Cir. 2016) (quoting Blyden, 186 F.3d at 263). Moreover,
the Supreme Couli has cautioned district coulis against concluding that "the absence of' some
arbitrary quantity of injury' requires automatic dismissal of an excessive force claim." Wilkins,
559 U.S. at 39 (quoting Hudson, 503 U.S. at 9).
Here, Defendants asseli that this Couli should conclude now, as a matter of law,
that Plaintiffs exposure to the chemical or pepper spray was the consequence of no more than a
de minimis use of physical force. Defendants cite no cases involving the use of chemical or
pepper sprays, however, even though there is a substantial body of case law documenting that
exposure to such substances causes "'a variety of incapacitating and painful effects."' Toliver v.

13

New York City Dep't of Corr., No. 10-cv-5355 (RJS), 2016 WL 4705166, at *3 (S.D.N.Y. July
29, 2016) (quoting Tracy v. Freshwater, 623 F.3d 90, 98-99 (2d Cir. 2010) ("Unquestionably,
infliction of pepper spray on an arrestee has a variety of incapacitating and painful effects.")
(collecting cases)). This Court concludes that Plaintiff has pled sufficient facts concerning the
effect of the spray on him to survive a motion to dismiss.

III.

DEFENDANTS' OBJECTIONS REGARDING
THE FIRST AMENDMENT RETALIATION CLAIM
Judge Maas concluded that Rodriguez has stated a First Amendment retaliation

claim. (R&R (Dkt. No. 33) at 16-19) In a three-sentence objection, Defendants argue that Judge
Maas's "finding was erroneous and should be reviewed de novo" because "the [R&R] accepted
plaintiffs conclusory allegations that he was transferred from MDC and lost his job assignment
as a result of filing a grievance." (Def. Obj. Br. (Dkt. No. 37) at 14) Since this objection does
no more than reiterate an argument considered and rejected by Judge Maas (see Def. Motion to
Dismiss Br. (Dkt. No. 28) at 22 (arguing that "plaintiff conclusorily alleges that he filed a
grievance complaining of the 'threats, treatment, and abuse' and 'was transferred out of [MDC] .
. . as a result)), this portion of Judge Maas's recommendation will be reviewed for clear error.
See Renelique, 2003 WL 23023771, at *1.

A.

Applicable Law
"[T]o sustain a First Amendment retaliation claim, a prisoner must demonstrate

the following: '(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."' Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004)
(quoting Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled on other grounds,
Swierkiewicz v. Sorema, 534 U.S. 506 (2002)). "These allegations may not be conclusory; they
14

must have some basis in specific facts that are not inherently implausible on their face." Jones v.
Harris, 665 F. Supp. 2d 384, 397 (S.D.N.Y. 2009). Furthermore, "[c]ourts have been cautioned
to approach First Amendment retaliation claims by prisoners with skepticism and particular
care." Id. (citing Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003)).
An "adverse action" is conduct "that would deter a similarly situated individual of
ordinary firmness from exercising his or her constitutional rights." Dawes, 239 F.3d at 493; see
also Davis, 320 F.3d at 353 ("[R]etaliation against an inmate must be likely to 'chill a person of
ordinary firmness from continuing to engage' in a protected activity.") (quoting Thaddeus-Xv.
Blatter, 175 F.3d 378, 397 (6th Cir. 1999)). "In making this determination, 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."' Davis, 320 F.3d at 353 (quoting
Dawes, 239 F.3d at 493 (quoting Thaddeus-X, 175 F.3d at 398)) (alterations in original).
In evaluating the causal connection requirement, the Second Circuit has stated
that courts should "exercise [their] judgment about the permissible inferences that can be drawn
from temporal proximity" between the exercise of a constitutional right and retaliatory action.
Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009).

B.

Analysis
Rodriguez has alleged that he filed a grievance "complain[ing] about the threats,

treatment and abuse [from corrections officers]," and was then "transferred out of [MDC] to
[the] Eric M. Taylor Center [at Rikers Island]." (Cmplt. (Dkt. No. 1-4) at 1) "[R]etaliation
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

15

under§ 1983." Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996). The Court concludes that
Rodriguez has sufficiently alleged that he engaged in protected speech.
To satisfy the second prong of a First Amendment retaliation claim, Rodriguez
must allege facts demonstrating that Defendants "took adverse action" against him. As noted
above,.an "adverse action" is conduct "that would deter a similarly situated individual of
ordinary firmness from exercising his or her constitutional rights." Dawes, 239 F.3d at 493; see
also Davis, 320 F.3d at 353.
Whether Rodriguez's transfer to another prison would deter a "similarly situated
individual of ordinary firmness" cannot be resolved as a matter oflaw at this stage of the
proceedings. The Second Circuit has held, however, that a prison transfer may constitute an
adverse action. See Davis v. Kelly, 160 F.3d 917, 920 (2d Cir. 1998) ("prison authorities may
not transfer an inmate in retaliation for the exercise of constitutionally protected rights").
"Therefore, 'at this early state, the[se] allegation[s] ... must be construed as describing an
adverse action,' and ... [Plaintiff] 'should have the opportunity to develop facts that would
demonstrate that [Defendants' actions] would deter a reasonable inmate from pursuing
grievances."' Davis, 320 F.3d at 354 (quoting Morales v. Mackalm, 278 F.3d 126, 131-32 (2d
Cir. 2002), abrogated on other grounds by Porter v. Nussle, 534 U.S. 516 (2002)).
With respect to causation, "[a] plaintiff can establish a causal connection that
suggests retaliation by showing that protected activity was close in time to the adverse action."
Espinal, 558 F.3d at 129 (citing Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001);
Gorman-Bakos v. Cornell Coop. Extension, 252 F.3d 545, 554 (2d Cir. 2001)). As Judge Maas
explained, Rodriguez does "not specif[y] when he filed his grievance, [but] it is clear that he
must have done so by September 25, 2014, when he gave his Complaint to prison officials for

16

mailing .... Since his transfer clearly also was effected by that date, there was at most a twoweek gap between his grievance and transfer." (R&R (Dkt. No. 33) at 18) Given the close
temporal proximity between Rodriguez's grievance and his transfer, this Court finds that
Rodriguez has adequately alleged a causal connection.
Accordingly, Defendants' motion to dismiss Rodriguez's First Amendment
retaliation claim will be denied. 8
C.

DEFENDANTS' OBJECTIONS TO THE
MAGISTRATE JUDGE'S FINDING THAT THEY
ARE NOT ENTITLED TO QUALIFIED IMMUNITY
The individual defendants object to Judge Maas's "finding that Defendants are

not entitled to qualified immunity on plaintiffs Eighth Amendment excessive force claim."
(Def. Obj. Br. (Dkt. No. 37) at 14) They contend that Judge Maas erred in rejecting their
"argu[ment] that there is no clearly established right to be free from witnessing force used on
another individual." (Id.) Defendants also contend that they are entitled to qualified immunity
with respect to their use of the chemical or pepper spray - which caused Plaintiff to suffer the
symptoms discussed above - because Plaintiff was an "unintended recipient of force." (Id.)
Given Defendants' concession that they are reiterating an argument already rejected by Judge
Maas, this Court reviews this portion of the R&R for clear error.
As a general matter, correctional officers who violate a plaintiffs constitutional
rights are nevertheless entitled to qualified immunity if their "conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known."

8

Judge Maas recommends granting Defendants' motion to dismiss "to the extent that Rodriguez
seeks to assert a Fourteenth Amendment procedural due process claim as a result of his transfer
to Rikers Island and consequent loss of his MDC job assignment." (R&R (Dkt. No. 33) at 15)
There are no objections to this portion of the R&R, and this Court has identified no clear error on
the face of the record. Accordingly, this claim will be dismissed.
17

Stephenson v. Doe, 332 F.3d 68, 77 (2d Cir. 2003) (citation omitted). "In determining if a right
is clearly established, this Court looks to whether (1) it was defined with reasonable clarity, (2)
the Supreme Court or the Second Circuit has confirmed the existence of the right, and (3) a
reasonable defendant would have understood that his conduct was unlawful." Doninger v.
Niehoff, 642 F.3d 334, 345 (2d Cir. 2011) (citing Young v. Cty. of Fulton, 160 F.3d 899, 903 (2d
Cir. 1998)). "It is indisputable that freedom from the use of excessive force is a clearly
established constitutional right." Atkins v. Cty. of Orange, 372 F. Supp. 2d 377, 401 (S.D.N.Y.
2005). But "a determination of whether the right at issue was 'clearly established' 'must be
undertaken in light of the specific context of the case, not as a broad general proposition."'
Doninger, 642 F.3d at 345 (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001), abrogated on
other grounds by Pearson v. Callahan, 555 U.S. 223 (2009)).
Here, the allegations in Rodriguez's complaints foreclose the application of
qualified immunity to his Eighth Amendment excessive force claim at this stage of the
proceedings. As an initial matter, Plaintiff pleads facts demonstrating that Defendants engaged
in a vicious assault of another inmate - conduct that a reasonable officer "would have
understood ... was unlawful." Id. It can reasonably be inferred from the pleaded facts that the
Defendants were aware that Rodriguez was in close proximity to the alleged assault, because he
was observed standing in a nearby hallway closet prior to the assault. Moreover, one of the
corrections officers present - Officer Handly - "told [Plaintiff] to get back in there an[ d] left the
door [of the hallway closet] ajar[]." (Cmplt. (Dkt. No. 1-1) at 1) Rodriguez further alleges thatdespite being aware that Plaintiff was present in the adjacent hallway closet- Defendants
proceeded to use the chemical or pepper spray in what reasonably can be inferred to have been
an indiscriminate manner. (Id. at 1-2) Whether or not Plaintiff was the "[]intended recipient of

18

[Defendants'] force" (Def. Obj. Br. (Dkt. No. 37) at 14), he suffered the consequences of
Defendants' use of the chemical or pepper spray, and the alleged respiratory effects suffered by
Plaintiff - based on the facts pleaded in the complaints - would have been reasonably
foreseeable to Defendants. Defendants' use of the chemical or pepper spray in the circumstances
described in the complaints would run counter to clearly established Second Circuit law
requiring that such substances "not be used lightly or gratuitously" by police and corrections
officers. Tracy, 623 F.3d at 98; see also Alston v. Daniels, No. 3:15-cv-669 (CSH), 2015 WL
7257896, at *4 (D. Conn. Nov. 17, 2015 ("In the Second Circuit, a prison guard's use ofa
chemical agent ... on an inmate may, under certain circumstances, constitute unnecessary and
wanton infliction of pain in violation of the Eighth Amendment." (citing Tracy, 623 F.3d at 98)).
Accordingly, "the Court is not prepared to find [at this stage of the proceedings] that
[Defendants'] decision to [use] pepper-spray ... was objectively reasonable, as it must for
Defendant[s] to prevail on [their] qualified immunity argument." Toliver, 2016 WL 4705166, at
*5 (citing Tracy, 623 F.3d at 99 n.5 ("[I]t was well established at the time of the underlying
altercation that the use of entirely gratuitous force is unreasonable and therefore excessive, see,
~,Breen

v. Garrison, 169 F.3d 152, 153 (2d Cir. 1999), and in light of this precedent, we

presume that no reasonable officer could have believed that he was entitled to use pepper spray
gratuitously against a restrained and unresisting arrestee.")). Defendants' motion to dismiss
Plaintiff's Eighth Amendment excessive force claim on grounds of qualified immunity will be
denied.
Defendants do not object to Judge Maas's conclusion that they are not entitled to
qualified immunity on Rodriguez's First Amendment retaliation claim, and this Court sees no
error in that determination.

19

IV.

CLAIMS AGAINST THE CITY AND WARDEN CUIN
Judge Maas concluded that Rodriguez's claims against the City and Warden Cuin

must be dismissed, because Plaintiff "has failed to allege facts sufficient to hold either ... liable"
for his excessive force claim or First Amendment retaliation claim. (R&R (Dkt. No. 33) at 21)
"Although plaintiff names [both the City and Warden Cuin] in the caption of his complaint, he
does not allege any facts in the body of his complaint to support [such] claim[s]." Jones v. City
ofNew York, No. 16-CV-1289 (KAM)(LB), 2016 WL 4435220, at *2 (E.D.N.Y. Aug. 19,
2016). This Court finds no clear error in Judge Maas's recommendation. Accordingly, those
claims will be dismissed.

V.

LIMITATION OF DAMAGES UNDER THE
PRISON LITIGATION REFORM ACT
Judge Maas recommended that this Court reject Defendants' contention "that

Rodriguez is not entitled to recover damages for mental and emotional injuries because he has
not alleged physical injury." (R&R (Dkt. No. 33) at 25) Defendants have not objected to this
recommendation. Accordingly, this Court reviews this recommendation for clear error.
Section 1997e(e) of the Prison Litigation Reform Act (the "PLRA") bars
"damages for mental or emotional injury for a constitutional violation in the absence of a
showing of actual physical injury." Thompson v. Carter, 284 F.3d 411, 417 (2d Cir. 2002).
Here, as discussed above in connection with Rodriguez's excessive force claim, there are
allegations of physical injury. (See Cmplt. (Dkt. No. 1-1) at 3) At this stage, these allegations
are sufficient to overcome the Section 1997e(e) bar. Frieson v. City of New York, No. 11 Civ.
4611 (JGK), 2012 WL 1948782, at *2 (S.D.N.Y. May 30, 2012) ("[A]t the motion to dismiss
stage, the Court cannot, and need not, conclusively resolve the factual question of whether or not
the plaintiff suffered physical injury in addition to his claimed mental and emotional injury.").
20

Rodriguez may also recover for "intangible deprivations of [his] liberty and
personal rights." R&R (Dkt. No. 33) at 26; see also Kerman v. City ofNew York., 374 F.3d 93,
125 (2d Cir. 2004) ("The damages recoverable for [a plaintiffs Fourth Amendment claims] are
separable from damages recoverable for such injuries as physical harm, embarrassment, or
emotional suffering."). Accordingly, Rodriguez can pursue compensatory damages on his First
Amendment retaliation claim. See Lipton v. Cty. of Orange, 315 F. Supp. 2d 434, 457 (S.D.N.Y.
2004) ("[T]here is an exception to the aforementioned PLRA preclusion of compensatory
damages in the absence of physical injury that is applicable to cases wherein the constitutional
right that is allegedly violated arises under the First Amendment.").
Moreover, as the R&R acknowledges, the PLRA does not place "limitations on
injunctive and declaratory relief [or] nominal and punitive damages." R&R (Dkt. No. 33) at 2526; see Thompson, 284 F.3d at 418. Rodriguez is therefore entitled to pursue these remedies
with respect to his remaining claims.
CONCLUSION
For the reasons stated above, this Court adopts Judge Maas's recommendation
that Defendants' motion to dismiss be denied with respect to (1) Plaintiffs Eighth Amendment
excessive force claim against Officer Allen, Officer Williams, Captain Aldmodovar, and Captain
Myke; and (2) Plaintiffs First Amendment retaliation claim against Officer Allen, Officer
Williams, Captain Aldmodovar, Captain Myke, and Captain Williams. Plaintiffs remaining
claims are dismissed.
The Clerk of the Court is directed to terminate the motion (Dkt. No. 26) and to
mail a copy of this Order to Tyler Rodriguez, 149 Stephens Ave., Apt. 1, Bronx, New York
10473.

21

This Court will conduct a conference in this matter on October 6, 2016, at 10:45
a.m. in Courtroom 705 of the Thurgood Marshall United States Courthouse, 40 Foley Square,
New York, New York.
Dated: New York, New York
September23, 2016

SO ORDERED.

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