Cucchiara v. Hollinsworth et al
OPINION & ORDER re: 97 FIRST MOTION for Summary Judgment Notice of Motion, filed by Naralyn Ortega, Cernyak, Mitchell, Dentist C-73, Julissa Santos, Leman, 92 FIRST MOTION for Joinder of the City of New York in a Thir d-Party Action, filed by Hollinsworth. For the reasons set forth above, the Court hereby GRANTS the City's motion for summary judgment (ECF No. 97) and DENIES defendant Hollingsworth's motion for leave to implead the City (ECF No. 92) . In addition, plaintiff is ordered to show cause within fourteen days as to why his claims against defendant Hollingsworth should not be dismissed based on a failure to exhaust his administrative remedies. The Clerk of Court is directed to terminate the motions at ECF Nos. 92 and 97. (Signed by Judge Katherine B. Forrest on 10/14/2016) (cla)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
C.O. HOLLINGSWORTH et al.,
DOC #: _________________
DATE FILED: October 14, 2016
OPINION & ORDER
KATHERINE B. FORREST, District Judge:
Plaintiff Gregory Cucchiara brought this action pursuant to 42 U.S.C. § 1983
(“Section 1983”) against seven employees of the New York City Department of
Correction (“DOC”) alleging various violations of his constitutional rights while
incarcerated at the George Motchan Detention Center (“GMDC”) and Manhattan
Detention Complex (“MDC”). All but one of the defendants—defendant Correction
Officer Hollingsworth—are represented by the City of New York (the “City”).
The City has moved for summary judgment with respect to all claims against
the defendants it represents (the “City Defendants”) (ECF No. 97), and defendant
Hollingsworth has moved for leave to implead the City (ECF No. 92). For the
reasons set forth below, the Court GRANTS the City’s motion and DENIES
defendant Hollingsworth’s. As a result, the sole surviving claims are plaintiff’s
Section 1983 claims against defendant Hollingsworth. However, as noted below,
the Court believes these claims are subject to dismissal due to plaintiff’s failure to
exhaust available administrative remedies.
Plaintiff alleges that on January 2, 2013, he was “attacked by C.O.
Hollin[g]sworth” while incarcerated at GMDC. (ECF No. 2 at 3.) Specifically,
plaintiff contends that defendant Hollingsworth grabbed and scratched his neck
(ECF No. 100-1 (“Cucchiara Dep.”) at 67:19-68:3), punched him in the left temple
(id. at 70:11-70:19) and kicked him on the lateral side of his left knee (id. at 71:971:25).
Plaintiff testified that, following the alleged altercation with defendant
Hollingsworth, he sustained a “red ball on the side of [his] head  that eventually
turned into a very, very light bruise” as well as “scratches on [his] neck . . . right
above the Adam’s apple”. (Id. at 88:7-15.) Plaintiff also testified that the
altercation “re-aggravated” a pre-existing injury in his knee for “[a] few months”.
(Id. at 88:16-89:4.) Plaintiff further alleges that defendants Santos and Ortega
“ignore[d] [his] plea for medical attention.” (ECF No. 2 at 3; see also Cucchiara
Dep. at 112:3-9.)
On January 6, 2013, plaintiff was seen by Dr. Michael Latunji at the GMDC
medical center. (ECF No. 101 (“City Defs.’ 56.1”) ¶ 4.) Plaintiff informed Dr.
Latunji that he had been kicked in the right knee by a DOC staff member. (Id.) Dr.
Latunji examined plaintiff’s right knee2 and observed that plaintiff had full range of
The facts set forth herein are undisputed unless otherwise noted.
The Court notes that there are conflicting allegations of whether plaintiff’s alleged injury occurred
to his left or right knee. However, as neither party has focused on this, the Court assumes for
purposes of this motion that the injury occurred to the same knee that was examined by Dr. Latunji.
motion and that there was no swelling or superficial reddening of the area.
(Id. ¶ 7.) Ultimately, Dr. Latunji assessed that plaintiff had a contusion on the
right knee that should be treated with naproxen, a non-steroidal, anti-inflammatory
drug. (Id. ¶ 8.) Dr. Latunji also examined plaintiff’s head and neck and noted that
both were in normal condition without significant abnormalities or swelling.
(Id. ¶¶ 5-6.) Dr. Latunji observed no lacerations and plaintiff did not require
stitches or an X-ray. (Id. ¶¶ 9, 11.)
Plaintiff alleges that he was transferred to MDC on January 15, 2013, and
that “[f]rom then on problems d[ue] to negligence increased on a mass scale”.
(ECF No. 2 at 3-4.) Plaintiff further alleges that, while at MDC, he was placed by
defendant Cernyak in a mental observation unit “for no reason”, and that he
continues to experience oral sensitivity to hot and cold due to the manner in which a
DOC dentist (named in the complaint as “Dentist C-73” and later identified as
defendant Mullins (ECF No. 25)) pulled his tooth. (ECF No. 2 at 4.) Plaintiff also
alleges that he has suffered emotional distress because, on several occasions at
MDC, his “prison comm[i]ssary” was stolen and he was subjected to gang violence.
(Id. at 4-5.) These latter claims are not asserted against any particular defendant.
Plaintiff’s Complaint and the City’s Motion for Summary
On January 15, 2015, plaintiff filed this Section 1983 action against seven
DOC employees. (ECF No. 2.) Plaintiff principally alleges that, on January 2, 2013,
he was subjected to excessive force by defendant Hollingsworth and subsequently
denied medical treatment by the staff at GMDC and MDC, where he was then
incarcerated. (Id.) Although plaintiff instituted the action pro se (see ECF No. 2),
he later obtained representation (ECF No. 40).
On August 8, 2016, the City moved for summary judgment on plaintiff’s
claims against the six City Defendants. (ECF No. 97.) Plaintiff did not oppose the
City’s motion. (See ECF No. 86 (setting deadline for oppositions to motions for
summary judgment (other than Hollingsworth’s) on August 29, 2016.)
Consequently, on September 6, 2016, the City filed a letter requesting that the
Court consider its motion for summary judgment “fully-briefed and unopposed”.
(ECF No. 104.)
The City’s Representation of Defendant Hollingsworth
On April 22, 2015, defendant Hollingsworth executed a waiver of service in
this action. (ECF No. 7.) The City submits that it began representing defendant
Hollingsworth on December 16, 2015. (ECF No. 95 ¶ 4.) On December 21, 2015, the
City filed an answer on behalf of defendant Hollingsworth. (ECF No. 43.)
The City represents that, in the course of preparing for defendant
Hollingsworth’s upcoming deposition scheduled for June 17, 2016, a conflict of
interest arose between defendant Hollingsworth and the Office of Corporation
Counsel. (ECF No. 95 ¶¶ 5-6.) By letter dated June 17, 2016, the City notified
defendant Hollingsworth that it had decided to withdraw its representation of him
in this matter. (ECF No. 93-3 at 2; ECF No. 94 at 4; ECF No. 96 at 3.) The
declination letter stated, in relevant part:
Section 50-k(2) of the General Municipal Law states, among other things,
that the City shall provide for the defense of an employee in an action
“arising out of any alleged act or omission which the Corporation Counsel
finds occurred while the employee was acting within the scope of his
employment and in the discharge of his duties and was not in violation of any
rule or regulation of his agency at the time the alleged act or omission
occurred.” We have concluded that we cannot make the requisite findings
under Section 50-k(2), and, consequently, we are unable to represent you.
(ECF No. 93-3 at 2.) On June 28, 2016, the City filed a motion to withdraw as
counsel for defendant Hollingsworth. (ECF No. 82.) The accompanying cover letter
reiterated the City’s request to withdraw as counsel for defendant Hollingsworth
and further stated that “[t]he conflict of interest at issue is based on information
which is protected by the ongoing attorney-client privilege between [the Office of
Corporation Counsel] and Correction Officer Hollingsworth”. (ECF No. 81 at 2.)
On June 29, 2016, the Court granted the City’s request to withdraw its
representation of defendant Hollingsworth. (ECF No. 85.) On July 6, 2016, Julie
Ann Ortiz filed a notice of appearance on behalf of defendant Hollingsworth
(ECF No. 87) and submitted a letter requesting (1) an extension of fact discovery for
defendant Hollingsworth; and (2) permission to file a motion for leave to implead
the City as a third-party defendant to defendant Hollingsworth’s proposed
representation and indemnification claims (ECF No. 88). On July 11, 2016, the
Court granted both requests. (ECF No. 91.) On July 25, 2016, defendant
Hollingsworth filed a motion for leave to implead the City (ECF No. 92), which the
City opposed on August 5, 2016 (ECF No. 96).
Summary Judgment Standard
Summary judgment may not be granted unless a movant shows, based on
admissible evidence in the record, “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). The moving party bears the initial burden of demonstrating “the
absence of a genuine issue of material fact”. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). When the moving party does not bear the ultimate burden on a
particular claim or issue, it need only make a showing that the non-moving party
lacks evidence from which a reasonable jury could find in the non-moving party's
favor at trial. Id. at 322-23. This burden remains even when a party’s motion is
unopposed. See Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244
(2d Cir. 2004) (quoting Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001)).
In making a determination on summary judgment, the court must “construe
all evidence in the light most favorable to the nonmoving party, drawing all
inferences and resolving all ambiguities in its favor”. Dickerson v. Napolitano, 604
F.3d 732, 740 (2d Cir. 2010) (citing LaSalle Bank Nat’l Ass’n v. Nomura Asset
Capital Corp., 424 F>3d 195, 205 (2d Cir. 2005)). Once the moving party has
discharged its burden, the opposing party must set out specific facts showing a
genuine issue of material fact for trial. Wright v. Goord, 554 F.3d 255, 266 (2d Cir.
2009). “A party may not rely on mere speculation or conjecture as to the true
nature of the facts to overcome a motion for summary judgment,” as “mere
conclusory allegations or denials cannot by themselves create a genuine issue of
material fact where none would otherwise exist”. Hicks v. Baines, 593 F.3d 159,
166 (2d Cir. 2010) (internal quotation marks, citations and alterations omitted). In
addition, “only admissible evidence need be considered by the trial court in ruling
on a motion for summary judgment”. Porter v. Quarantillo, 722 F.3d 94, 97 (2d Cir.
2013) (internal quotation marks, citation and alterations omitted).
Prison Litigation Reform Act
The Prison Litigation Reform Act (“PLRA”) “instructs that ‘[n]o action shall
be brought with respect to prison conditions under [42 U.S.C. § 1983] . . . by a
prisoner . . . until such administrative remedies as are available are exhausted.’”
Williams v. Correction Officer Priatno, 829 F.3d 118, 122 (2d Cir. 2016) (quoting 42
U.S.C. § 1997e(a)). “Failure to exhaust administrative remedies is an affirmative
defense under the PLRA”. Id. (citations omitted). However, an inmate is not
obligated to exhaust administrative remedies that are “officially on the books” but
“not capable of use to obtain relief”, and hence practically unavailable. Id. at 123
(quoting Ross v. Blake, __ U.S. __, 136 S. Ct. 1850, 1859 (2016)). An administrative
remedy is unavailable for practical purposes if it (1) “operates as a simple dead
end—with officers unable or consistently unwilling to provide any relief to
aggrieved inmates”; (2) is “so opaque” that “no ordinary prisoner can discern or
navigate” the process to obtain relief; or (3) is blocked by prison administrators who
“thwart inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Id. (quoting Ross, 136 S. Ct. at
1859-60) (internal quotation marks omitted)).
Rule 14(a) of the Federal Rules of Civil Procedure “permits a defending party
to implead another ‘who is or may be liable to the third-party plaintiff for all or part
of the plaintiff’s claim against the third-party plaintiff’”. Bank of India v. Trendi
Sportswear, Inc., 239 F.3d 428, 437-38 (2d Cir. 2000) (quoting Fed. R. Civ. P. 14(a)).
The third party’s liability “must be dependent on, or derivative of, the main or
third-party claim”. Id. at 438 (citation omitted); see also Kenneth Leventhal & Co.
v. Joyner Wholesale Co., 736 F.2d 29, 31 (2d Cir. 1984) (per curiam).
A defendant must obtain leave of court to implead a third party if it seeks to
do so more than fourteen days after serving its original answer. Fed. R. Civ. P.
14(a)(1). “The decision whether to permit a defendant to implead a third-party
defendant rests in the trial court's discretion.” Kenneth Leventhal & Co., 736 F.2d
at 31 (citation omitted). “‘Relevant factors in determining whether to grant leave to
implead include: (i) whether the movant deliberately delayed or was derelict in
filing the motion; (ii) whether implead[er] would unduly delay or complicate the
trial; (iii) whether implead[er] would prejudice the third-party defendant; and (iv)
whether the third-party complaint states a claim upon which relief can be granted.’”
Trepel v. Dippold, No. 4-cv-8310 (DLC), 2005 WL 2206800, at *2 (S.D.N.Y. Sept. 12,
2005) (quoting Nova Prods., Inc. v. Kisma Video, Inc., 220 F.R.D. 238, 240 (S.D.N.Y.
28 U.S.C. § 1367 provides district courts “with both the power to exercise
supplemental jurisdiction [over state law claims] and the discretion, in specified
circumstances, to decline to entertain such claims”. Itar-Tass Russian News Agency
v. Russian Kurier, Inc., 140 F.3d 442, 445 (2d Cir. 1998). “District courts have
supplemental jurisdiction over state-law claims that ‘form part of the same case or
controversy’ as other claims over which the court has original jurisdiction.”
Kroshnyi v. U.S. Pack Courier Servs., Inc., 771 F.3d 93, 102 (2d Cir. 2014) (quoting
28 U.S.C. § 1367(a)). However, a district court “may decline to exercise
supplemental jurisdiction over [such a] claim” if:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which
the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original
(4) in exceptional circumstances, there are other compelling reasons for
28 U.S.C. § 1367(c). “Courts must consider ‘the values of judicial economy,
convenience, fairness, and comity’ when deciding whether to exercise supplemental
jurisdiction. Kroshnyi, 771 F.3d at 102 (quoting Carnegie-Mellon Univ. v. Cohill,
484 U.S. 343, 350 (1988)).
The City’s Representation and Indemnification Obligations
The contours of the City’s obligation to represent and indemnify its
employees in federal and state civil actions are set forth in four key provisions of
Section 50-k of the New York General Municipal Law. See N.Y. Gen. Mun. § 50k(2)-(5). As a general matter, the City must, upon request, represent its employees
in such proceedings and indemnify the full amount of any resulting judgment,
provided the Office of Corporation Counsel finds the alleged act or omission
“occurred while the employee was acting within the scope of his public employment
and in the discharge of his duties” and the employee was not then “in violation of
any rule or regulation of his agency”. Id. § 50-k(2) (representation), 50-k(3)
There are certain exceptions to this general rule. First, the City’s duties to
defend and indemnify its employees are conditioned on “the full cooperation of the
employee in the defense of such action or proceeding”. Id. § 50-k(4). Section 50-k(4)
In the event that the [C]orporation [C]ounsel shall assume an employee’s
defense and thereafter the employee fails to or refuses to cooperate in the
formation or presentation of his defense, the court shall permit the
[C]orporation [C]ounsel to withdraw his representation ten days after giving
written notice to the employee of his intention to discontinue such
Id. Second, under Section 50-k(5), if “the act or omission upon which the court
proceeding against the employee is based was or is also the basis of a disciplinary
proceeding by the employee’s agency against the employee”, representation and
indemnification may be withheld “until such disciplinary proceeding has been
resolved” and unless the employee is “exonerated” in the disciplinary proceeding.
Id. § 50-k(5). Third, the City may not indemnify its employees for injury or damage
arising from “intentional” or “reck[less]” misconduct. Id. § 50(k)(3).
The issue of whether a particular employee’s acts were committed within the
scope of his employment—and thus, whether that employee is entitled to
representation and indemnification by the City—is a matter “‘to be determined in
the first instance by the Corporation Counsel . . . and his determination may be set
aside only if it lacks a factual basis, and in that sense, is arbitrary and capricious’”.
Banks v. Yokemick, 144 F. Supp. 2d 272, 278 (S.D.N.Y. 2001) (quoting Williams. v.
City of New York, 476 N.E.2d 317, 318 (1985)); see also Lara v. City of New York,
No. 13-cv-6684 (DLC), 2014 WL 5463374, at *1 (S.D.N.Y. Oct. 22, 2014) (citing
Williams, 476 N.E.2d at 318).
“Claims for indemnification do not generally ripen until a judgment in the
underlying action is paid.” See, e.g., Harris v. Rivera, 921 F. Supp. 1058, 1062
(S.D.N.Y. 1995) (citations omitted); Nevares v. Morrissey, No. 95-cv-1135 (JGK),
1998 WL 265119, at *6 (S.D.N.Y. May 22, 1998) (quoting Harris, 921 F. Supp. at
1062); Woo v. City of New York, No. 93-cv-7007 (AJP)(HBD), 1996 WL 457337, at
*14 (S.D.N.Y. Sept. 6, 1996) (same); Wong v. Yoo, 649 F. Supp. 2d 34, 76 (E.D.N.Y.
2009) (same); Jocks v. Tavernier, 97 F. Supp. 2d 303, 312 (E.D.N.Y. 2000), vacated
on other grounds, 316 F.3d 128 (2d Cir. 2003) (citing Nevares, 1998 WL 265119, at
*6). Some courts have, however, have permitted defendants to assert
indemnification cross-claims “before they are technically ripe” in order to promote
“fairness and judicial economy”. See, e.g., Harris, 921 F. Supp. at 1062; Woo, 1996
WL 457337, at *14 (quoting Harris, 921 F. Supp. at 1062); Wong, 649 F. Supp. 2d at
76 (same); Jocks v. Tavernier, 97 F. Supp. 2d at 312 (citing Nevares, 1998 WL
265119, at *6).
The City’s Motion for Summary Judgment
The City has moved for summary judgment on all claims asserted against the
six defendants it represents: defendants Cernyak, Mullins (a.k.a. “Dentist C-73”),
Leman, Mitchell, Ortega and Santos. (ECF No. 97.) Plaintiff has not opposed the
motion. Having reviewed the record, the Court agrees with the City that summary
judgment is appropriate as to each of the City Defendants.
Defendants Cernyak and Mullins
Defendants Cernyak and Mullins must be dismissed from the case because
plaintiff never served them and the time to do has long since passed. See Fed. R.
Civ. Pro. 4(m). Absent a showing of good cause by the plaintiff, “[i]f a defendant is
not served within 90 days after the complaint is filed, the court . . . must dismiss the
action without prejudice against that defendant or order that service be made
within a specified time”. Id. The deadline to serve defendant Cernyak expired on
April 15, 2015, 90 days after plaintiff filed the complaint. See id. The deadline to
serve defendant Mullins expired on December 21, 2015, a date set by the Court
after plaintiff identified defendant Mullins by name instead of by the alias “Dentist
C-73” referenced in the complaint. (See ECF No. 27 (requiring service within 120
days of August 21, 2015).) Neither defendant Cernyak nor defendant Mullins has
been served well over a year after their respective service deadlines expired, and
plaintiff—who has been represented by counsel for at least ten months—has
proffered no explanation for the failure. Dismissal is therefore appropriate with
respect to these defendants.
Defendants Leman and Mitchell
The City is also entitled to summary judgment dismissing all claims against
defendants Leman and Mitchell, neither of whom is mentioned in the complaint
outside of the caption.3 “To establish a section 1983 claim, a ‘plaintiff must
establish a given defendant’s personal involvement in the claimed violation in order
to hold that defendant liable in his individual capacity.’” Warren v. Pataki, 823
F.3d 125, 136 (2d Cir. 2016) (quoting Patterson v. Cty. of Oneida, N.Y., 375 F.3d
206, 229 (2d Cir. 2004)).4 “Where the complaint names defendants in the caption
but contains no allegations indicating how they violated the law or injured the
plaintiff, dismissal [as to those defendants] is appropriate.” Inside Connect, Inc. v.
Fischer, No. 13-cv-1138 (CS), 2014 WL 2933221, at *10 (S.D.N.Y. June 30, 2014)
(dismissing Section 1983 claims against named defendant not mentioned in
complaint) (internal quotation marks, citation and alteration omitted); see also
Askew v. Lindsey, No. 15-cv-7496 (KMK), 2016 WL 4992641, at *7 (S.D.N.Y. Sept.
16, 2016) (same) (internal quotation marks and citations omitted); Roberts v. City of
New York, No. 14-cv-5198 (GHW), 2016 WL 4146135, at *7 (S.D.N.Y. Aug. 2, 2016)
(same); Hobbs v. Police Officers of the City of New York, No. 10-cv-5717
The original complaint mentions Captain “Carter” in lieu of Captain “Mitchell”. On September 3,
2015, upon receiving a letter from the City regarding the identities of these defendants, the Court
deemed the complaint amended to effect this substitution. (ECF No. 31.)
Personal involvement may be proven through one of five means: “(1) the defendant participated
directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation
through a report or appeal, failed to remedy the wrong, (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 [the plaintiffs] by
failing to act on information indicating that unconstitutional acts were occurring.” Id. (quoting
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)).
(SHS)(HBP), 2014 WL 502030, at *8 (S.D.N.Y. Feb. 6, 2014) (report and
recommendation) (recommending entry of summary judgment on Section 1983
claims against two named defendants not mentioned in complaint). Since plaintiff
has failed to plead a single fact supporting defendant Leman’s or Mitchell’s relation
to the allegations in the complaint, the Court enters summary judgment dismissing
all claims against them.
Defendants Ortega and Santos
With respect to defendants Ortega and Santos, the City proffered unrebutted
evidence of plaintiff’s failure to exhaust available administrative remedies. Under
such circumstances, dismissal is appropriate. See 42 U.S.C. § 1997e(a);
Williams, 829 F.3d at 122. “The correctional facility's requirements, and not the
PLRA, ‘define the boundaries of proper exhaustion.’” Myers v. City of New York,
No. 11-cv-8525 (PAE), 2012 WL 3776707, at *4 (S.D.N.Y. Aug. 29, 2012), aff'd, 529
F. App'x 105 (2d Cir. 2013) (quoting Espinal v. Goord, 558 F.3d 119, 124 (2d Cir.
The inmate grievance process in place at the GMDC and the MDC is the
DOC’s four-step5 Inmate Grievance and Request Program (the “IGRP”). (City Defs.’
56.1 ¶¶ 15-23; see also ECF No. 98-1 (“Directive No. 3376”).) The IGRP requires
inmates to (1) submit a grievance form to the relevant grievance supervisor within
ten business days of the alleged condition or issue; (2) request a formal hearing
Some cases construe a previous iteration of the IGRP, which required that, as a fifth step, the
aggrieved inmate appeal any unfavorable decision by the CORC to the New York City Board of
Correction. See, e.g., Myers, 2012 WL 3776707, at *4; Johnson v. New York Dep’t. of Correction, No.
13-cv-6799 (CM), 2014 WL 2800753, at *3 (S.D.N.Y. June 16, 2014). The current version of Directive
No. 3376 instead requires the CORC to automatically apprise the Board of Correction of an appeal to
the CORC and afford it the opportunity to be heard.
before the Inmate Grievance Resolution Committee (“IGRC”) within five days of the
prior decision; (3) appeal any unfavorable decision by the IGRC to the commanding
officer within five days; and (4) appeal any unfavorable decision by the commanding
officer to the Central Office Review Committee (“CORC”) within five days. Myers,
2012 WL 3776707, at *4; Johnson, 2014 WL 2800753, at *3. (See also City Defs.’
56.1 ¶¶ 17-23; Directive No. 3376 at 1-3.) “The CORC’s disposition constitutes the
[DOC’s] final decision on the inmate’s request or grievance.” (Directive No. 3376 at
2-3.) Inmates who do not receive a response at any point in the IGRP process and
wish to pursue their grievance must appeal to the next level of the process in a
timely fashion in order to exhaust his or her available administrative remedies.
Johnson, 2014 WL 2800753, at *4 (citing Gantt v. Horn, No. 09-cv-7310 (PAE), 2013
WL 865844, at *6 (S.D.N.Y. Mar. 8, 2013)); Williams v. Ramos, No. 13-cv-826 (VB),
2015 WL 864888, at *2 (S.D.N.Y. Feb. 9, 2015); see generally Williams, 829 F.3d at
122 (describing PLRA exhaustion requirement). (See also City Defs.’ 56.1 ¶ 23;
Directive No. 3376 at 14.)
“It is well settled that an inmate must complete all requisite steps of the
IGRP in order to fully exhaust his administrative remedies”. Johnson, 2014 WL
2800753, at *4; see also Myers, 2012 WL 3776707, at *4 (“‘An inmate's
administrative remedies are not exhausted until he proceeds through all [four]
levels of the IGRP.’”) (quoting Houston v. Horn, No. 09-cv-801, 2010 WL 1948612, at
*6 (S.D.N.Y. May 13, 2010)). Here, while the City and plaintiff disagree about
whether plaintiff ever filed a grievance concerning the allegations in the complaint
(compare City Defs.’ 56.1 ¶¶ 26-27 (stating the City has no record of plaintiff filing
any grievance relating to the incident in question from January 1, 2013 to January
1, 2014) with ECF No. 2 at 6 (alleging plaintiff filed grievances concerning “all”
claims in the complaint)), it is undisputed that plaintiff never appealed to the
CORC as required for exhaustion.
Plaintiff’s allegation that his grievances and complaints to “capt[a]ins and
staff” were “ignored” (ECF No. 2 at 6; City Defs.’ 56.1 ¶ 25) does not excuse his
failure to pursue all four steps of the IGRP—he was still required to timely request
a formal hearing before the IGRC, to appeal to the commanding officer, and
ultimately, to the CORC. See Seymore v. City of New York, No. 12-cv-6870
(GBD)(HBP), 2014 WL 1259563, at *8 (S.D.N.Y. Mar. 26, 2014) (“The fact that
plaintiff claims he received no response to his grievance and request for a hearing
does not excuse him from the obligation of exhausting his administrative appeals.”)
(citations omitted). In the absence of any evidence that these routes were
“unavailable” to plaintiff, see Williams, 829 F.3d at 123, the Court finds the PLRA
precludes plaintiff’s action against defendants Ortega and Santos.
While defendant Hollingsworth has not sought dismissal for failure to
exhaust available administrative remedies, the Court notes sua sponte that the
facts pertinent to exhaustion vis-à-vis defendant Hollingsworth are no different
than those vis-à-vis defendants Ortega and Santos. (See Section III.A.3 supra.)
Accordingly, the Court orders plaintiff to show cause within fourteen days of the
date hereof as to why the Court should not dismiss the claims against defendant
Hollingsworth as well. If plaintiff does not respond within fourteen days, the Court
will dismiss the claims against him sua sponte.
Defendant Hollingsworth’s Motion to Implead the City as a ThirdParty Defendant
Defendant Hollingsworth seeks leave to implead the City as a third-party
defendant so that he may assert claims for wrongful denial of representation and
indemnification. (ECF Nos. 92, 94 at 6.) As the Court has already noted (see
Section III.A.4 supra), the Court believes plaintiff’s action as to defendant
Hollingsworth is subject to dismissal, and therefore the following portion of the
opinion may soon become moot. However, given that plaintiff has not yet had an
opportunity to show cause as to why dismissal of his claims against defendant
Hollingsworth is inappropriate, the Court addresses defendant Hollingsworth’s
motion, and the City’s response thereto.
The City argues that impleader is inappropriate because the Court lacks
jurisdiction over these claims and the proposed indemnification claim is not ripe.
(ECF No. 96 at 2.) These arguments go to the fourth factor relevant to impleader,
i.e., whether the proposed complaint states a claim. The Court therefore addresses
this factor first. As set forth below, the Court declines to exercise supplemental
jurisdiction over defendant Hollingsworth’s proposed claims. In any event, the
Court finds impleader inappropriate because in the context of the facts pled here,
the indemnification claim is not ripe. Given these conclusions, the Court need not
address the remaining three factors governing the impleader analysis.
The Court Declines to Exercise Supplemental Jurisdiction Over
the Representation and Indemnification Claims.
The Court agrees with the City that it should decline to exercise
supplemental jurisdiction over defendant Hollingsworth’s representation and
indemnification claims. Although “the weight of opinion among courts in this
District” is that defendants may assert claims for representation and
indemnification for the first time via third-party claims in federal court, Yokemick,
144 F. Supp. 2d at 277 (collecting cases); see also Barnes v. Banks, No. 10-cv-4802
(RJS)(JLC), 2011 WL 4943972, at *4 (S.D.N.Y. Oct. 18, 2011), no New York State
court has ever considered federal court or an Article 78 proceeding to be the
exclusive forum in which to challenge the City’s denial of representation or
indemnification, see, e.g., Yokemick, 144 F. Supp. 2d at 277 (collecting cases);
Nevares, 1998 WL 265119, at *3 (same).
This silence, when coupled with several other open questions concerning the
application of Section 50-k, raise the sort of “novel and complex issues” of New York
State law that are best suited for New York courts to decide. See Nevares, 1998 WL
265119, at *9 (declining to exercise supplemental jurisdiction over indemnification
cross-claim); Yokemick, 144 F. Supp. 2d at 281-82, 288 (discussing “open issues
relating to the application of G.M.L. § 50-k” and inviting parties to stipulate that
indemnification cross-claim be litigated in state court given the “many state law
Defendant Hollingsworth’s Indemnification Claim Is Not Ripe.
The City additionally contends that Mr. Hollingsworth’s indemnification
claim is “premature”. (ECF No. 96 at 2.) The Court agrees. “Claims for
indemnification do not generally ripen until a judgment in the underlying action is
paid.” See, e.g., Harris, 921 F. Supp. at 1062; Nevares, 1998 WL 265119, at *6
(quoting Harris, 921 F. Supp. at 1062); Woo, 1996 WL 457337, at *14 (same); Wong,
649 F. Supp. 2d at 76 (same); Jocks, 97 F. Supp. 2d at 312 (citing Nevares, 1998 WL
265119, at *6). The City has represented in this case and others that the Office of
Corporation Counsel does not make a final determination on whether it will
indemnify an employee until after a verdict has been entered in the underlying
action. (See ECF No. 96 at 7-8); see also Yokemick, 144 F. Supp. 2d at 284;
Nevares, 1998 WL 265119, at *7.
In light of the ripeness doctrine and the City’s policy, courts have generally
taken two approaches when third-party defendants assert indemnification claims
before judgment. In Nevares, Judge Koeltl dismissed the indemnification crossclaim as not ripe, requiring plaintiff to file suit in state court after judgment was
rendered. See Nevares, 1998 WL 265119, at *7 (dismissing indemnification crossclaim because, inter alia, “the City represents that it does not make a decision
whether to indemnify an employee until after the jury has returned a verdict in the
action in which the employee was named as a defendant.”). Other courts have
permitted defendants to assert indemnification cross-claims “before they are
technically ripe” in order to promote “fairness and judicial economy”, but have
deferred consideration of the indemnification cross-claim until after a verdict as to
liability has been entered; then, in a post-verdict proceeding, these courts apply
New York law to assess the indemnification claim. See Yokemick, 144 F. Supp. at
287 (“this Court will consider the [indemnification] claim as a matter of law after
the jury has returned its verdict on the plenary action, and after the City has had a
reasonable opportunity, following its assessment of the evidence at trial, to decide
whether or not it will indemnify”); Harris, 921 F. Supp. at 1062 (bifurcating trial
such that “[o]nly if the jury decides in favor of the plaintiff will the jury be given the
defendant’s claim against the City”); Hogan v. City of New York, No. 04-cv-3298
(JFB)(SMG), 2008 WL 189891, at *2 (E.D.N.Y. Jan. 18, 2008) (rejecting City’s
request for pre-trial review of a third-party plaintiff’s indemnification claim).
Even if the Court exercised supplemental jurisdiction over defendant
Hollingsworth’s indemnification claim, it would decline leave to implead under the
former approach. See Nevares, 1998 WL 265119, at *7. Here, the interests of
“judicial economy and fairness” are not furthered by permitting impleader of an
unripe claim for at least four reasons. First, contrary to plaintiff’s assertion (ECF
No. 94 at 7), requiring plaintiff to proceed in state court would not meaningfully
delay any potential recovery because indemnification will be litigated post-judgment
regardless of the forum. Second, given the Court’s above ruling on plaintiff’s motion
for summary judgment (see supra at Section III.A), the City is no longer a
defendant to the primary action brought by plaintiff. Granting impleader would
inequitably force the City to remain involved in this lawsuit through verdict even
though its interest arises only if defendant Hollingsworth is found liable to the
plaintiff. Third, in the event the case is resolved before verdict or a verdict is
returned in defendant Hollingsworth’s favor, judicial economy would be saved by
foregoing joinder of an unripe claim. Fourth, and finally, it is possible that the
City’s dismissal from this case will in itself resolve the alleged conflict of interest
that presently precludes the City from representing and indemnifying defendant
Hollingsworth. See Mercurio v. City of New York, 758 F.2d 862, 864-65 (2d Cir.
1985) (discussing conflicts of interest that may arise “if both the City and the
individual [employees] are named as defendants in an action”). Taken together,
these considerations weigh in favor of not joining the unripe indemnification claim.
For the reasons set forth above, the Court hereby GRANTS the City’s motion
for summary judgment (ECF No. 97) and DENIES defendant Hollingsworth’s
motion for leave to implead the City (ECF No. 92). In addition, plaintiff is ordered
to show cause within fourteen days as to why his claims against defendant
Hollingsworth should not be dismissed based on a failure to exhaust his
The Clerk of Court is directed to terminate the motions at ECF Nos. 92 and
New York, New York
October 14, 2016
KATHERINE B. FORREST
United States District Judge
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