Alicea v. The City of New York et al

Filing 102

ORDER granting in part and denying in part 88 Motion for Summary Judgment. For the foregoing reasons, Defendants' motion for summary judgment is GRANTED in part and DENIED in part. Counsel for the parties shall discuss settlement and shall i nform the Court by letter no later than May 1, 2020, as to the status of the action. The Clerk of the Court shall close the open motion [dkt. no. 88] and mail a copy of this order to Mr. Alicea. SO ORDERED. (Signed by Judge Loretta A. Preska on 3/31/2020) (va) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DAVE ALICEA,
Plaintiff,
No. 16 Civ. 7347 (LAP)
-versusORDER
CITY OF NEW YORK, et al.,
Defendants.
LORETTA A. PRESKA, Senior United States District Judge:
Plaintiff Dave Alicea (“Mr. Alicea”) alleges that he was
attacked by another inmate, causing a hand injury, while he was
a pretrial detainee on Riker’s Island.

He brings this action

against the City of New York (“City”) and Corrections Officer
Dorothy

Harrison

(“Officer

Harrison”),

asserting

claims

of

deliberate indifference to safety and municipal liability under
42 U.S.C. § 1983.

Defendants move for summary judgment under

Federal Rule of Civil Procedure 56(a).
June 14, 2019 [dkt. no. 88].)

(Notice of Motion, dated

As explained below, their motion

for summary judgment is GRANTED in part and DENIED in part.
I.

BACKGROUND
On August 24, 2013, Mr. Alicea was housed in Dorm 4B of the

North

Infirmary

Command

on

Riker’s

inmate Kenneth Law (“Mr. Law”).

Island

along

with

fellow

(See Plaintiff’s Rule 56.1

Counterstatement, dated July 19, 2019 (“Pl. 56.1”) [dkt. no. 96]
¶¶ 1-2.)

Mr. Alicea, who had been in Dorm 4B since 2012, and

1

Mr. Law, who had been there for about a month, never had an
altercation before and spoke casually about TV, magazines, and
dominoes.

(Id. ¶ 2-4.)

Dorm 4B was separated into multiple

spaces -- including living quarters, a pantry, a dayroom, and a
laundry room -- and had a security desk where a correctional
officer (the “B Post Officer”) could sit, make entries into a
logbook, and view most of Dorm 4B.

(Id. ¶¶ 5-6.)

On August 24, 2013, Mr. Alicea woke up around 5:00 a.m. to
serve breakfast to his fellow inmates.

(Id. ¶ 7.)

At around

11:00 a.m., he returned to bed and, before taking a nap, saw the
B Post Officer at the security desk.

(Id. ¶¶ 8, 49.)

At around

12:00 p.m., Officer Harrison arrived at Dorm 4B to relieve the B
Post Officer; Mr. Alicea was asleep at the time and did not see
Officer

Harrison

come

in.

(Id.

¶¶ 9,

10.)

Upon

arriving,

Officer Harrison started her required tour of Dorm 4B.
¶ 11.)

(Id.

Tours were done every half hour and could last about ten

minutes depending on where inmates were located.

(Id. ¶ 12.)

On a tour, the corrections officer would make sure doors were
locked and rooms clean, check for weapons or contraband, and
inspect inmates for signs of life.

(Id. ¶ 12.)

As Officer Harrison was making her tour, a loud noise woke
Mr. Alicea from his nap.

(Id. ¶ 13.)

The noise was caused by

Mr. Law, who was banging a cane or crutch against the windowsill
near Mr. Alicea’s bed.

(Id.)

Mr. Law had previously been cited

2

by the Department of Corrections for violent behavior against an
inmate on at least one occasion.

(Id. ¶ 42.)

Responding to the

noise, Mr. Alicea asked Mr. Law to stop banging on the window,
but Mr. Law refused, saying: “No.
bang.

I’ll bang whenever I want to

I don’t care because this is where I feed my bird.”

¶¶ 14, 15.)

(Id.

Mr. Alicea testified that after he looked toward

the security desk and saw no corrections officer, Mr. Law said,
“You think you’re tough[?],” and ran at Mr. Alicea swinging a
piece of the crutch and a cane.

(Id. ¶¶ 16-17.)

In the ensuing

scuffle, which, according to Mr. Alicea, lasted between 11-13
minutes, Mr. Alicea suffered a broken hand.

(Id. ¶¶ 18, 23.)

The parties agree that Officer Harrison was in another part
of Dorm 4B when the attack started and heard a loud thud from
the living quarters, but they offer differing accounts on how
she responded to the attack.

(Id. ¶ 21.)

Upon arriving to the

scene, Officer Harrison did not activate her personal body alarm
or immediately request backup, and, according to Mr. Alicea, the
backup team arrived two minutes later despite being stationed
close

to

the

site

of

the

attack.

(Id.

¶ 57)

Mr.

Alicea

testified that Officer Harrison watched the attack for over a
minute before Mr. Alicea was able to dislodge the objects out of
Mr.

Law’s

hands.

(Id.

¶¶ 23-24.)

For

her

part,

Officer

Harrison testified that she responded and immediately instructed
the inmates to stop fighting and to put the objects down, which

3

they did, making it unnecessary for her to activate her personal
body alarm.

(See id. ¶¶ 24-26.)

Officer Harrison then notified

the area supervisor, who responded immediately, and Mr. Alicea
and Mr. Law were escorted out of the area.

(Id. ¶ 26.)

The parties also give competing versions of the steps Mr.
Alicea took to obtain relief after the incident.

Mr. Alicea

offered testimony and evidence that he sent grievance letters to
Riker’s Island staff that went unanswered.
68.)

Defendants,

in

turn,

submitted

(See id. ¶¶ 41, 67-

affidavits

from

prison

staff stating that Mr. Alicea never filed any such grievance
letters.

(See Defendants’ Response to Plaintiff’s Rule 56.1

Counterstatement, dated August 2, 2019 [dkt. no. 98] ¶ 41.)
Mr. Alicea filed this lawsuit pro se on September 20, 2016.
The operative complaint alleges that Officer Harrison violated
Mr. Alicea’s constitutional rights by abandoning her post and
leaving Dorm 4B unsupervised, failing to protect him from Mr.
Law, and failing to intervene to stop Mr. Law’s attack.
Amended Complaint, dated Nov. 1, 2017 [dkt. no. 47].)

(See

Liberally

construed, the complaint pleads a claim under 42 U.S.C. § 1983
and

a

claim

for

common

law

negligence.

On

June

14,

2019,

Defendants filed their motion for summary judgment.
II.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 56(a), a court shall
grant a motion for summary judgment “if the movant shows that

4

there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

Fed. R.

A fact is material if it “might affect the

outcome of the suit under the governing law,” and an issue is
genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson v. Liberty

When ruling on a motion

for summary judgment, the Court must “resolve all ambiguities,
and

credit

all

factual

inferences

that

could

rationally

drawn, in favor of the party opposing summary judgment.”

be

Cifra

v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001).
III. DISCUSSION
Defendants move for summary judgment on five grounds: (1)
Mr. Alicea’s 42 U.S.C. § 1983 claim is barred because he did not
exhaust his pre-suit administrative remedies as required by the
Prison Litigation Reform Act of 1995 (“PLRA”); (2) even if the
claim is not barred, Mr. Alicea cannot establish liability under
§ 1983; (3) Officer Harrison is protected by qualified immunity;
(4) Mr. Alicea failed to establish municipal liability against
the City; and (5) Mr. Alicea’s common law negligence claim is
time-barred.
a.

The Court will address each issue in turn.

Exhaustion of Administrative Remedies

The PLRA provides that “[n]o action shall be brought with
respect to prison conditions under section 1983 of this title

5

. . . until such administrative remedies as are available are
exhausted.”
available
Ross

v.

42

U.S.C.

remedies,
Blake,

§ 1997e(a).

but

136

S.

need
Ct.

not

1850,

Inmates

exhaust
1858

“must

exhaust

unavailable

(2016).

To

ones.”

properly

exhaust administrative remedies, inmates must comply with the
applicable administrative rules, which “are defined not by the
PLRA, but by the prison grievance process itself.”

Jones v.

Bock, 549 U.S. 199, 218 (2007).
Defendants argue that satisfying the exhaustion requirement
here required complying with the New York City Department of
Correction’s Inmate Grievance Process (“IGRP”), which requires
inmates to file an initial grievance with the IGRP office and
then advance through several tiers of administrative appellate
review before filing suit.

(See Defendants’ Memorandum of Law,

dated June 14, 2019 (“Def. Br.”) [dkt. no. 89] at 6; Declaration
of Bridgette Nunez Figueroa, dated June 14, 2019 [dkt. no. 91],
Ex.

R

(“IGRP

Directive”)

§§

IV(D)-(J).)

The

IGRP

requires

inmates to pursue all levels of the administrative procedure
even

if

they

do

not

grievance.

(See

IGRP

acknowledge,

however,

receive
Directive
that

the

a

response

to

their

§ IV(D)(10)(a).)
IGRP

contains

initial

Defendants

exemptions

that

free inmates who are making certain categories of complaints
from going through the full IGRP process.

6

(See Def. Br. at 7.)

One

such

exemption

applies

here

and

defeats

Defendants’

motion for summary judgment.

Specifically, the IGRP provides

that

physical

“[i]nmate

allegations

of

or

sexual

assault

by

either staff or inmates are not subject to the IGRP process.”
(IGRP Directive § IV(B)(2)(b).)

Courts in this Circuit have

held that claims involving a correctional officer’s failure to
protect an inmate from another inmate’s attack falls within that
IGRP process exception.

See Taylor v. City of New York, No. 16

Civ. 7857 (NRB), 2018 WL 1737626, at *5 (S.D.N.Y. Mar. 27, 2018)
(a

failure

to

protect

claim

involved

“inmate

allegations

of

physical assault by [other] inmates, and [were] therefore not
grievable”);

Taylor

v.

Swift,

21

F.

Supp.

3d

237,

241-44

(E.D.N.Y 2014) (allegation “that prison officials stood idly by
while

[plaintiff]

inmates’”

was

not

suffered

an

‘assault

subject

to

grievance

. . .

process),

dismissed, No. 14-3382 (2d Cir. Mar. 10, 2015). 1
Alicea’s

complaint

alleges

an

assault

by

by

another

[other]
appeal

Because Mr.
inmate,

it

1
Although Defendants cite cases in their opening brief in
which courts dismissed failure to protect claims on exhaustion
grounds, none of those cases examined whether the claims were
exempt from the IGRP’s procedures.
(See Def. Br. at 5-6); see
also, e.g., Cicio v. Wenderlich, 714 Fed. App’x 2d Cir. 2018).
In their reply brief, Defendants do not address Mr. Alicea’s
exemption argument, instead reiterating their earlier point that
he failed to follow all the steps laid out in the IGRP before
filing suit.
(See Defendants’ Reply Memorandum of Law, dated
August 2, 2019 (“Reply”) [dkt. no. 97] at 3-6.)

7

comes within the IGRP exception and is not subject to the full
suite of IGRP procedures.
The parties agree that when an IGRP exception applies, the
inmate must still file a grievance to satisfy his exhaustion
requirement, though he need not go through the rest of the IGRP
processes.

(See Def. Br. at 7; Plaintiff’s Memorandum of Law in

Opposition to Defendants’ Summary Judgment Motion, dated July
19, 2019 (“Opp.”) [dkt. no. 94] at 9.)

Mr. Alicea submitted

evidence of two grievance letters he purportedly sent regarding
the incident with Officer Harrison.

(See Pl. 56.1 41, 67-68.)

Although Defendants contend that Mr. Alicea never actually filed
those letters, that point merely highlights an area of factual
dispute

that

the

Court

cannot

resolve

at

this

juncture.

2

2
Defendants ask the Court to ignore Mr. Alicea’s grievance
letters because he failed to produce them during discovery.
(See Reply at 2-3.) The Court will not do so. Federal Rule of
Civil Procedure 37(c)(1) provides that “if a party fails to
provide information as required by Rule 26, the party is not
allowed to use that information to supply evidence unless the
failure was substantially justified or harmless.”
Spencer v.
City of New York, No. 06 Civ. 2852 (KMW), 2011 WL 13257640, at
*2 (S.D.N.Y. July 18, 2011). Although Mr. Alicea perhaps could
have produced the letters at an earlier point, he litigated much
of this case as a pro se plaintiff, and his delay caused
Defendants no prejudice.
There is therefore no basis for
excluding his letters under Rule 37(c)(1), especially given that
doing so would effectively result in dismissal of his case on
exhaustion grounds.
See Fed. R. Civ. P. 36(c)(1), Advisory
Committee Notes to 1993 Amendments (explaining that Rule
36(c)(1)’s
exceptions
for
“substantially
justified”
and
“harmless” violations of the disclosure rules were designed “to
avoid unduly harsh penalties,” including in situations involving
“lack of knowledge of a pro so litigant of the requirement to
make disclosures”).

8

Defendants’

motion

for

summary

judgment

based

on

failure

to

exhaust administrative remedies is therefore denied.
b.

Failure to Intervene Claim Under § 1983

“The Eighth Amendment . . . requires prison officials to
take reasonable measures to guarantee the safety of inmates in
their custody.”

Blandon v. Aitchison, No. 17 Civ. 65 (KMK),

2019 WL 1206370, at *6 (S.D.N.Y. Mar. 14, 2019) (citing Farmer
v. Brennan, 511 U.S. 825, 833 (1994)).
Amendment

applies

only

to

“Because the Eighth

convicted

prisoners,

pre-trial

detainees” -- like Mr. Alicea at the time of the incident -- “are
protected

by

Amendment.”

the

Due

Process

Clause

of

the

Fourteenth

Fair v. Weiburg, No. 02 Civ. 9218 (KMK), 2006 WL

2801999, at *4 (S.D.N.Y. Sept. 28 2006) (citing Weyant v. Okst,
101 F.3d 845, 856 (2d Cir. 1996)).

Courts nevertheless apply

the same failure to protect standard developed under the Eighth
Amendment

to

claims

Fourteenth Amendment.
Although

brought

by

pretrial

detainees

under

the

Id.

“[p]rison

officials

have

a

duty

to

protect

prisoners from violence at the hands of other inmates,” Lee v.
Artuz, No. 96 Civ. 8604, 2000 WL 231083, at *4 (S.D.N.Y. Feb.
29, 2000), not “every injury suffered by one prisoner at the
hands of another . . . translates into constitutional liability
for

prison

officials

responsible

for

the

victim’s

Farmer v. Brennan, 511 U.S. 825, 834 (1994).

9

safety.”

To establish a

failure to protect claim, the plaintiff must show that (1) he
was incarcerated under conditions that posed a substantial risk
of serious harm, and (2) the defendant acted with deliberate
indifference to the plaintiff’s safety.

Molina v. County of

Westchester, 16 Civ. 3421, 2017 WL 1609021, at *2-3 (S.D.N.Y.
Apr. 28, 2017); see also Hayes v. New York City Dep’t of Corr.,
84

F.3d

614,

620

(2d

Cir.

1996)

(“[T]he

plaintiff

must

demonstrate that he is incarcerated under conditions posing a
substantial risk of serious harm” and “that the defendant prison
officials possessed sufficient culpable intent.”).
Mr. Alicea advances two theories for his failure to protect
claim.

(See Opp. at 13-16.)

First, he contends that Officer

Harrison exposed him to conditions presenting a substantial risk
of harm by abandoning her post and failing to supervise Mr. Law
despite Mr. Law’s history of violence and access to objects he
could use as weapons.

Second, Mr. Alicea argues for liability

based on Officer Harrison’s failure promptly to intervene after
Mr. Law started assaulting him.

The Court grants Defendants’

motion for summary judgment with respect to Mr. Alicea’s first
theory but not his second.
As

to

the

first

theory,

Mr.

Alicea

has

not

adduced

sufficient evidence from which reasonable jurors could find that
he faced a condition posing a substantial risk of serious harm.
See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (the

10

condition must be one of “urgency” that “may produce death,
degeneration, or extreme pain” (quoting Nance v. Kelly, 912 F.2d
605, 607 (2d Cir. 1990) (Pratt, J., dissenting))).

Although he

previously assaulted another detainee (Pl. 56.1 ¶ 42), Mr. Law
never had a prior violent encounter with Mr. Alicea, and before
the incident at issue here, the two inmates had a more or less
friendly

relationship.

(Id.

¶ 4.)

Given

those

undisputed

facts, the Court rules as a matter of law that leaving the two
inmates unsupervised did not pose a substantial risk of serious
harm to Mr. Alicea or reflect a deliberate disregard to his
safety.

See, e.g., Desulma v. City of New York, 98 Civ. 2078,

2001

798002,

WL

at

summary

judgment

when

inmates

but

no

had

*6-7

(S.D.N.Y.

plaintiff
previous

July

received

physical

6,

2001)

verbal

(granting

threats

altercations

with

from
his

attackers); Fernandez v. N.Y.C. Dep’t of Corr., No. 08 Civ. 4294
(KMW), 2010 WL 1222017, at *4 (S.D.N.Y. Mar. 29, 2010) (“Absent
clear notice of a risk of harm to the prisoner, courts routinely
deny

deliberate

indifference

claims

based

upon

surprise

attacks.” (citation and internal quotation marks omitted)).
As

to

questions

Mr.

of

Alicea’s

fact

second

preclude

failure

entry

of

to

protect

summary

theory,

judgment.

Mr.

Alicea testified that Officer Harrison stood and watched for one
minute

after

fighting.

discovering

that

(Pl. 56.1 ¶¶ 23-24.)

11

Mr.

Alicea

and

Mr.

Law

were

Although Defendants contend

that

Officer

Harrison

acted

quickly

and

appropriately,

reasonable jurors could conclude that, if true, her decision to
wait roughly one minute

without taking measures to halt

the

attack exposed Mr. Alicea to a substantial risk of serious harm.
See George v. Burton, No. 00 Civ. 143 (NRB), 2001 WL 12010, at
*3 (S.D.N.Y. Jan. 4, 2001) (“Certainly, the ‘pervasive risk of
harm’ requirement is met when prison guards simply stand by and
permit an attack on an inmate by another inmate to proceed.”
(quoting Davidson v. Cannon 474 U.S. 344, 348 (1986)).
facts

and

reasonableness

of

Officer

Harrison’s

The

conduct

after

discovering the attack are questions to resolve at trial.
c.
The

Qualified Immunity
Court

also

declines

to

grant

summary

Officer Harrison’s qualified immunity defense.

judgment

on

A defendant is

entitled to qualified immunity if (1) his or her conduct did not
violate

clearly

established

law,

or

(2)

it

was

objectively

reasonable for him or her to believe that the conduct did not
violate such law.
1999).

As

to

Warren v. Keane, 196 F.3d 330, 332 (2d Cir.

the

first

prong,

“the

Supreme

Court

clearly

established that, when a prison official stands by and watches
an

inmate

attack

another

inmate,

he

has

violated

constitutional rights of the inmate under attack.”
Vandyke,

No.

09

Civ.

759

(FJS)(DRH),

2008

WL

the

Villante v.

163596,

at

*3

(N.D.N.Y. Jan. 15, 2008) (citing Davidson v. Cannon, 474, U.S.

12

344, 348 (1986)).
Officer

Here, there are fact questions as to whether

Harrison

watched

the

attack

without

whether her delay, if any, was reasonable.

intervening

and

Summary judgment is

therefore inappropriate on the qualified immunity issue.
d.

Municipal Liability

The City is entitled to summary judgment on the municipal
liability claim.
“person”

within

A municipality cannot face liability as a
the

meaning

of

42

municipality itself was at fault.
U.S. 808, 810 (1985).

U.S.C.

§ 1983

unless

the

Okla. City v. Tuttle, 471

To establish municipal liability, “[t]he

plaintiff must first prove the existence of a municipal policy
or

custom

action

in

that

order
caused

to
his

misbehaving officer.”
F.2d

40,

44

(2d

show

Cir.

that

injuries

the

municipality

beyond

merely

took

employing

some
the

Vippolis v. Village of Haverstraw, 768
1985).

“Second,

the

plaintiff

must

establish a causal connection -- an ‘affirmative link’ -- between
the policy and the deprivation of his constitutional rights.”
Id. (quoting Tuttle, 471 U.S. at 824 n.8.)
Here, Mr. Alicea makes absolutely no showing of any policy
or custom established by the City that is causally connected to
his injuries.

Instead, Mr. Alicea tries to pump air into the

events surrounding his attack, hoping to inflate what transpired
into a larger, institutional failure.
evidence,

however,

shows

only

a

13

(See Opp. at 19.)

singular

incident

The

involving

Officer Harrison.

With no policy or custom in play, there can

be no municipal liability.

See Dwares v. City of New York, 985

F.2d 94, 100 (2d Cir. 1993) (“A single incident alleged in a
complaint,

especially

policymaking
inference

of

level,
the

if

it

involved

generally

existence

only

will

not

a

custom

of

actors

suffice
or

below

to

the

raise

policy.”).

an
The

municipal liability claim is therefore dismissed.
e.

Statute of Limitations

Defendants argue that Mr. Alicea’s common law negligence
claim is time barred.
of

limitations

for

(Def. Br. at 19-20.)
negligence

New York’s statute

claims

against

municipal

defendants is one year and ninety days, meaning that under a
straightforward

application

of

the

limitations

period,

Mr.

Alicea’s negligence claim would have expired on November 22,
2014, nearly two years before he filed suit.
L. § 50-i(1)(c).
that

statutes

inmate

The Court of Appeals has recognized, however,

of

completes

See N.Y. Gen. Mun.

limitations
the

PLRA

are

equitably

administrative

tolled

exhaustion

while

the

process.

Gonzalez v. Hasty, 651 F.3d 318, 323-24 (2d Cir. 2011) (noting
that

without

tolling,

prison

officials

could

“exploit

the

exhaustion requirement through indefinite delay in responding to
grievances” (quoting Lewis v. Washington, 300 F.3d 829, 833 (7th
Cir.

2002)).

The

extent

to

which

Mr.

Alicea

benefits

from

tolling, if at all, hinges on the details of his administrative
exhaustion efforts, which, as discussed above, remains an open

14

question

of

fact.

Accordingly,

the

Court

denies

summary

judgment on the statute of limitations defense.
IV.

CONCLUSION

For the foregoing reasons, Defendants’ motion for summary
judgment is GRANTED in part and DENIED in part.

Counsel for the

parties shall discuss settlement and shall inform the Court by
letter
action.

no

later

than

May

1,

2020,

as

to

the

status

of

the

The Clerk of the Court shall close the open motion

[dkt. no. 88] and mail a copy of this order to Mr. Alicea.

SO ORDERED.

Dated:

March 31, 2020
New York, New York

___________________________
LORETTA A. PRESKA
SENIOR U.S. DISTRICT JUDGE

15