Bradshaw v. The City of New York et al

Filing 62

OPINION & ORDER: re: 47 MOTION for Summary Judgment, filed by The City of New York, Alphonse, Hernandez, Bailey, Latanya Brown. For the reasons set forth above, defendants' motion for partial summary judgment (Dkt. No. 47 ) is GRANTED, except DENIED as to the state law claim of assault and battery against Officer Alphonse. Bradshaw's claims against the City of New York, and his claims against the individual defendants for denial of medical care, violation of t he Equal Protection Clause, negligence, wrongful confinement and intentional infliction of emotional distress are dismissed. Bradshaw's following claims survive for trial: (1) failure to intervene under 42 U.S.C. § 1983 against Officer He rnandez; (2) excessive force under 42 U.S.C. § 1983 against Officer Alphonse; and (3) assault and battery under New York law against Officer Alphonse. The Joint Pretrial Order is due by December 29, 2017. The Court will hold the final pretrial conference on January 4, 2018 at 11A.M. in courtroom 20D, 500 Pearl Street. Defense counsel is to make the necessary arrangements with the prison for Mr. Bradshaw to appear telephonically by calling 212-805-0036 at the time of the conference. Couns el shall come to the conference with available dates for trial in January, likely the week of January 15 or January 29, 2018, and as further set forth in this order. (Pretrial Order due by 12/29/2017. Final Pretrial Conference set for 1/4/2018 a t 11:00 AM in Courtroom 20D, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Andrew J. Peck.), Motions terminated: 47 MOTION for Summary Judgment, filed by The City of New York, Alphonse, Hernandez, Bailey, Latany a Brown, Latanya Brown (Shield #821, Individually and as a Member of the New York City Department of Correction), The City of New York, Bailey (Individually and as a Member of the New York City Department of Correction) and Jay Bradshaw terminated. (Signed by Magistrate Judge Andrew J. Peck on 12/7/2017) Copies Mailed by Chambers. (ap)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------x
JAY BRADSHAW,
:
Plaintiff,

:
:

17 Civ. 1199 (AJP)

:

OPINION & ORDER

-against-

THE CITY OF NEW YORK, et al.,

:

Defendants.

:

:
--------------------------------------x
ANDREW J. PECK, United States Magistrate Judge:
Plaintiff Jay Bradshaw, pro se, brought this action under 42 U.S.C. § 1983 against
defendants after being assaulted in prison. (Dkt. No. 2: Compl.) Presently before the Court is
defendants' partial summary judgment motion. (Dkt. No. 47.) The parties have consented to
decision of the case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 35.) For the
reasons set forth below, defendants' motion is GRANTED (except DENIED as to the state law claim
of assault and battery against Officer Alphonse).
FACTS
The following relevant facts are undisputed for purposes of this motion. (See
generally Dkt. Nos. 49 & 56: Def. & Bradshaw Rule 56.1 Stmts.; see also Def. Rule 56.1 Stmt. n.1.)
The November 20, 2015 Incident
On November 20, 2015, Bradshaw was incarcerated at the Manhattan Detention
Center ("MDC"). (Dkt. No. 2: Compl. ¶ 15; Dkt. Nos. 49 & 56: Def. & Bradshaw Rule 56.1 Stmts.
¶ 1.) At approximately 8:40 P.M., Bradshaw was approached by three Hispanic inmates while

2
watching television in the prison common area where defendant Correction Officer Hernandez stood
guard. (Compl. ¶¶ 16-18; Def. & Bradshaw Rule 56.1 Stmts. ¶¶ 2-3; Def. Rule 56.1 Stmt. Ex. B:
Bradshaw Dep. at 28-30, 37.) The inmates told Bradshaw to "lock in," i.e., return to his cell, and
"told [Officer Hernandez] to turn off the TV," which he did, even though it was twenty minutes
before the prison's 9 P.M. "lock in time." (Bradshaw Dep. at 36, 52.) When Bradshaw responded
that it was not yet 9 P.M., the inmates threatened Bradshaw and "call[ed] [him] racial slurs."
(Bradshaw Dep. at 37, 53.) The inmates continued threatening Bradshaw as he walked to his cell;
Bradshaw claims that Officer Hernandez, who "was standing right there," never ordered them to stop
and "was all for it." (Bradshaw Dep. at 37, 53; Def. & Bradshaw Rule 56.1 Stmts. ¶ 4.)
Officer Hernandez observed the inmates follow Bradshaw into his cell that was "in
pla[in] view" of the common area. (Bradshaw Dep. at 53-54; Def. & Bradshaw Rule 56.1 Stmts.
¶ 6.) The inmates attacked Bradshaw, punching and kicking him in his upper body and head, and
one inmate bit Bradshaw on his back. (Bradshaw Dep. at 53-57; Def. & Bradshaw Rule 56.1 Stmts.
¶¶ 7-9; Compl. ¶ 16.) Bradshaw suffered a bloody lip and hand, a bite mark on his back, back pain,
a headache, and bruising on his face. (Bradshaw Dep. at 65-66, 83; Def. & Bradshaw Rule 56.1
Stmts. ¶ 15; Compl. ¶ 19.)
Bradshaw screamed for help during the attack, but Officer Hernandez, who was
"looking into [Bradshaw's] cell" from the common area and "watching it" happen, did nothing to
intervene. (Bradshaw Dep. at 58-59, 66, 95; Def. & Bradshaw Rule 56.1 Stmts. ¶¶ 10-11; Compl.
¶¶ 17-18.) The attack lasted five to seven minutes, after which Bradshaw observed Officer
Hernandez "still present in the same place" in the common area, approximately "three to four feet
away from [his] cell." (Bradshaw Dep. at 58-59, 62-65; Compl. ¶ 16; Def. & Bradshaw Rule 56.1
Stmts. ¶ 11.)

3
Bradshaw suspects that Officer Hernandez did not intervene because Officer
Hernandez and the assailants are Hispanic, and Bradshaw is black. (Bradshaw Dep. at 29, 49-52;
Def. & Bradshaw Rule 56.1 Stmts. ¶ 13.) On one occasion, Bradshaw "kept asking [Officer
Hernandez] for a blanket . . . in the cold winter and he didn't get it"; Bradshaw stated that "when
Hispanic prisoners ask [Officer Hernandez] for things, it's done more immediately." (Bradshaw
Dep. at 51-52.) Bradshaw also noted that when his assailants asked Officer Hernandez to shut off
the television prior to the assault, Officer Hernandez did so. (Bradshaw Dep. at 49, 53.) Bradshaw
admits, however, that he "can't really say" that Officer Hernandez was "being . . . racist." (Bradshaw
Dep. at 52; Def. & Bradshaw Rule 56.1 Stmts. ¶ 13.)
Afterwards, Bradshaw told defendant Captain Bailey about the assault and that
Officer Hernandez did not intervene. (Bradshaw Dep. at 67; Def. & Bradshaw Rule 56.1 Stmts. ¶
16; Compl. ¶ 21.) Captain Bailey instructed Bradshaw to "lock in," and "threatened to call the Probe
Team" when Bradshaw requested medical treatment and to be removed from the housing unit as he
feared for his safety. (Bradshaw Dep. at 68-69; Def. & Bradshaw Rule 56.1 Stmts. ¶¶ 17-18;
Compl. ¶¶ 22-23.) However, "after an argument" with Bradshaw, Captain Bailey moved Bradshaw
to the intake area. (Bradshaw Dep. at 69-70; Def. & Bradshaw Rule 56.1 Stmts. ¶ 19; Compl. ¶ 23.)
While in the intake area, Bradshaw claims that defendant Captain Latanya Brown
was deliberately indifferent by (i) threatening to physically force [Bradshaw] in[to]
the 7 North housing unit where he was removed due to threats of assault by the
regular 7-3 tour officer; (ii) threatening to physically force [Bradshaw] in[to] the 5
West housing unit where he was attacked; (iii) denying [Bradshaw's] request for
necessary medical assistance; (iv) disregarding [Bradshaw's] need to be re-located;
and (v) having [Bradshaw] remain in the Intake [unit] without a bed for seven (7)
days.

4
(Compl. ¶ 24; see Def. & Bradshaw Rule 56.1 Stmts. ¶ 21.) Bradshaw's intake area cell contained
a sink, toilet, and a concrete bench. (Bradshaw Dep. at 110; Def. & Bradshaw Rule 56.1 Stmts. ¶
34.)
Bradshaw received medical treatment on the evening of November 24, 2015 into
November 25, 2015 for the injuries he sustained during the November 20, 2015 attack. (Bradshaw
Dep. at 79; Def. & Bradshaw Rule 56.1 Stmts. ¶¶ 22-23; Def. Rule 56.1 Stmt. Ex. C: 11/24/1511/25/15 Grandoit Notes; Compl. ¶ 26.) PA Jean Grandoit examined Bradshaw and noted that
Bradshaw "was involved in a fight with another inmate on . . . 11/20/2015 [and] claimed he was bit[]
by another inmate in the back." (11/25/15 Grandoit Notes at 1; Def. & Bradshaw Rule 56.1 Stmts.
¶ 25.) PA Grandoit observed that Bradshaw had a "healed human bite [mark] in the left upper back
area," "a small scratch mark in the 2nd digit of the left hand" and "[t]iny bruises on [his] forehead."
(11/25/15 Grandoit Notes at 1-2; Def. & Bradshaw Rule 56.1 Stmts. ¶ 26; Compl. ¶ 27.) Bradshaw
was not prescribed any medication nor was he referred to a physician for further treatment.
(Bradshaw Dep. at 83-84; Def. & Bradshaw Rule 56.1 Stmts. ¶ 27.) Bradshaw's injuries did not
prevent him from eating, drinking, walking, sitting or sleeping, and aside from back pain from the
bite which lasted a week, his pain completely subsided "[t]wo to three days" after the incident.
(Bradshaw Dep. at 83-86; Def. & Bradshaw Rule 56.1 Stmts. ¶¶ 28-29.)
Bradshaw testified that he believes that New York City Department of Corrections
("DOC") policy mandates that correction officers protect inmates from assaults by other inmates.
(Bradshaw Dep. at 99; Def. & Bradshaw Rule 56.1 Stmts. ¶ 30.) However, according to Bradshaw,
DOC has "an unwritten policy of allowing inmates to assault other inmates and to try to cover up
those assaults by not documenting it and reporting them as they [are] supposed to." (Bradshaw Dep.
at 100; Def. & Bradshaw Rule 56.1 Stmts. ¶ 31.) Bradshaw testified that he did not know "how

5
many officers . . . allow inmates to fight without intervening." (Bradshaw Dep. at 100; Def. &
Bradshaw Rule 56.1 Stmts. ¶ 32.)
The November 25, 2015 Incident
On November 25, 2015, Bradshaw remained in an MDC intake unit cell that had a
rectangular food slot built into the door. (Dkt. Nos. 49 & 56: Def. & Bradshaw Rule 56.1 Stmts. ¶¶
33, 37; Def. Rule 56.1 Stmt. Ex. B: Bradshaw Dep. at 107, 110.) At approximately 1 P.M.
(Bradshaw Dep. at 135), defendant Correction Officer Alphonse opened the door slot and passed
a food tray to Bradshaw (Bradshaw Dep. at 113; Def. & Bradshaw Rule 56.1 Stmts. ¶ 37). After
Officer Alphonse handed Bradshaw the tray, Bradshaw "kept [his] hand[s] in the slot so that . . .
Officer Alphonse wouldn't close it," because Bradshaw "was trying to get the attention of the captain
[Brown] who was ignoring [him] all day, [as he] was requesting to see mental health." (Bradshaw
Dep. at 116; Def. & Bradshaw Rule 56.1 Stmts. ¶¶ 35-36, 38-40.)
Officer Alphonse "immediately" closed the slot without first asking Bradshaw to
remove his hands. (Bradshaw Dep. at 117-18; Def. & Bradshaw Rule 56.1 Stmts. ¶¶ 41-43.)
"Officer Alphonse . . . leaned his body against [the slot] for approximately a minute or two" while
Bradshaw's hands remained trapped. (Bradshaw Dep. at 116-17, 119; Def. & Bradshaw Rule 56.1
Stmts. ¶¶ 42-43; Dkt. No. 2: Compl. ¶ 28.) At some point, Officer Alphonse "stopped leaning on
the slot with his body," but "still kept the pressure on the slot with . . . one hand," and used the other
to hit Bradshaw's left hand with his radio "three or four times." (Bradshaw Dep. at 122-24; Def. &
Bradshaw Rule 56.1 Stmts. ¶¶ 44-46; Compl. ¶ 28.) Bradshaw eventually pulled his hands from the
slot (Bradshaw Dep. at 123); Bradshaw threw a cup of water at Officer Alphonse "in retaliation" "as
soon as [he] got [his] hand out of the slot" (Bradshaw Dep. at 126-27; Def. & Bradshaw Rule 56.1
Stmts. ¶ 48).

6
Officer Alphonse "proclaim[ed] that he was coming in [Bradshaw's cell] to beat [him]
up," but Captain Brown prevented him from doing so. (Bradshaw Dep. at 128-29.) Bradshaw
claims that Captain Brown must have witnessed Officer Alphonse shut Bradshaw's hands in the food
slot "because of how the intake area is . . . set up." (Bradshaw Dep. at 129; Def. & Bradshaw Rule
56.1 Stmts. ¶ 49.) Bradshaw alleges that DOC has a "policy [of] officers assaulting prisoners and
falsifying reports and records and proclaiming that the prisoner[] was the one . . . that did the
assault." (Bradshaw Dep. at 133; Def. & Bradshaw Rule 56.1 Stmts. ¶ 59.)
Bradshaw sustained a gash to his left middle finger as a result of the incident
(Bradshaw Dep. at 124-25, 133-34; Def. & Bradshaw Rule 56.1 Stmts. ¶ 47), and he asked Captain
Brown and other DOC staff for medical treatment (Bradshaw Dep. at 134; Def. & Bradshaw Rule
56.1 Stmts. ¶ 50). Bradshaw obtained medical treatment at approximately 10:30 P.M. that evening
from Dr. David Kerrison. (Bradshaw Dep. at 135-36; Def. & Bradshaw Rule 56.1 Stmts. ¶¶ 51-52;
Def. Rule 56.1 Stmt. Ex. D: 11/25/15 Kerrison Notes at 1; Compl. ¶¶ 30-31.) Dr. Kerrison's notes
state: "Patient had L hand slammed in metal slot door. L 2nd finger in[j]ured. Sustained laceration
to palmar surface of L 2nd finger & he c/o pain & swelling." (11/25/15 Kerrison Notes at 1; Def.
& Bradshaw Rule 56.1 Stmts. ¶ 52; Compl. ¶ 32.) Dr. Kerrison diagnosed Bradshaw with a finger
contusion and "L 2nd finger laceration" with swelling and tenderness. (11/25/15 Kerrison Notes at
2; Def. & Bradshaw Rule 56.1 Stmts. ¶ 52.)
Dr. Kerrison cleaned and bandaged Bradshaw's finger wound and prescribed
ibuprofen, before referring Bradshaw to Urgicare "for wound closure of L 2nd digit laceration & for
splint if deemed necessary." (11/25/15 Kerrison Notes at 2; Def. & Bradshaw Rule 56.1 Stmts. ¶
53.) Urgicare physicians "glued the wound[] shut" and performed an x-ray of Bradshaw's hand that
revealed no fractures. (Bradshaw Dep. at 136-38; Def. & Bradshaw Rule 56.1 Stmts. ¶¶ 54-56.)

7
Following his treatment with Dr. Kerrison and Urgicare, Bradshaw requested no further treatment
because he felt that his wounds were fully treated, and fully healed within two weeks. (Bradshaw
Dep. at 138; Def. & Bradshaw Rule 56.1 Stmts. ¶¶ 57-58.)
Bradshaw's Complaint And Defendants' Partial Summary Judgment Motion
Bradshaw brings claims under 42 U.S.C. § 1983 against the individual defendants
(Officers Hernandez and Alphonse, and Captains Bailey and Brown) for excessive force, failure to
intervene, denial of medical treatment and a violation of the Equal Protection Clause, along with a
Monell claim against the City for its alleged policy of subjecting inmates to excessive force and for
negligent hiring, training and supervision, among other claims. (See Dkt. No. 2: Compl. ¶¶ 35-64.)
Bradshaw also brings New York state law claims for negligence; assault; battery; false
imprisonment; negligent hiring, training and supervision; and intentional infliction of emotional
distress. (Compl. ¶¶ 65-89.) Defendants move for partial summary judgment, arguing that
Bradshaw's Monell claim against the City, denial of medical treatment claim, Equal Protection claim
and state law claims should be dismissed. (See generally Dkt. No. 50: Def. Br.)
ANALYSIS
I.

SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides that the "court shall grant

summary judgment if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also, e.g., Celotex
Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Humphreys v. Cablevision Sys. Corp., 553 F.
App'x 13, 14 (2d Cir. 2014); Connolly v. Calvanese, 515 F. App'x 62, 62 (2d Cir. 2013); Lang v.
Ret. Living Publ'g Co., 949 F.2d 576, 580 (2d Cir. 1991).

8
The burden of showing that no genuine factual dispute exists rests on the party
seeking summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct.
1598, 1608 (1970); Alzawahra v. Albany Med. Ctr., 546 F. App'x 53, 54 (2d Cir. 2013); Chambers
v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd.
P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating
to the Court that there is an absence of evidence to support the non-moving party's case on an issue
on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at
323, 106 S. Ct. at 2552-53; Dolan v. Cassella, 543 F. App'x 90, 90 (2d Cir. 2013).
To defeat a summary judgment motion, the non-moving party "'must do more than
simply show that there is some metaphysical doubt as to the material facts.'" Scott v. Harris, 550
U.S. 372, 380, 127 S. Ct. 1769, 1776 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986)). Instead, the non-moving party must "cit[e]
to particular parts of materials in the record" to show that "a fact . . . is genuinely disputed." Fed.
R. Civ. P. 56(c)(1); see, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587,
106 S. Ct. at 1356; Alzawahra v. Albany Med. Ctr., 2013 WL 6284286 at *1; Weinstock v.
Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (at summary judgment, "[t]he time has come . . .
'to put up or shut up'"), cert. denied, 540 U.S. 811, 124 S. Ct. 53 (2003).
In evaluating the record to determine whether there is a genuine issue as to any
material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are
to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S. Ct. at 2513.1/

1/

See also, e.g., Crown Castle NG E. Inc. v. Town of Greenburgh, N.Y., 552 F. App'x 47, 49
(2d Cir. 2014); Alzawahra v. Albany Med. Ctr., 2013 WL 6284286 at *1; Feingold v. New
York, 366 F.3d 138, 148 (2d Cir. 2004); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 36;
(continued...)

9
The Court draws all inferences in favor of the non-moving party only after determining that such
inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v.
DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S. Ct. 489 (1987). "If, as to
the issue on which summary judgment is sought, there is any evidence in the record from any source
from which a reasonable inference could be drawn in favor of the nonmoving party, summary
judgment is improper." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 37.
In considering a motion for summary judgment, the Court is not to resolve contested
issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See,
e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v.
U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S. Ct. 1570 (1987).
To evaluate a fact's materiality, the substantive law determines which facts are critical and which
facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S. Ct. at 2510.
While "disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or
unnecessary will not be counted." Id. at 248, 106 S. Ct. at 2510 (citations omitted); see also, e.g.,
Knight v. U.S. Fire Ins. Co., 804 F.2d at 11-12.
"The Court recognizes that it must extend extra consideration to pro se plaintiffs" and
that "pro se parties are to be given special latitude on summary judgment motions." Salahuddin v.
Coughlin, 999 F. Supp. 526, 535 (S.D.N.Y. 1998) (Peck, M.J.) (citations & internal quotations
omitted); see, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's
pleadings should be read liberally and interpreted "'to raise the strongest arguments that they

1/

(...continued)
Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d at 1223.

10
suggest'").2/ "Nevertheless, proceeding pro se does not otherwise relieve a litigant from the usual
requirements of summary judgment, and a pro se party's 'bald assertion,' unsupported by evidence,
is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, 93 Civ. 5981, 1999
WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing cases).3/
II.

DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON BRADSHAW'S
MUNICIPAL LIABILITY CLAIMS
A.

Legal Standards Governing Municipal Liability Claims
It is well established that a municipality may not be held liable under Section 1983

for alleged unconstitutional actions by its employees below the policy-making level solely upon the
basis of respondeat superior. E.g., Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 694,
98 S. Ct. 2018, 2037-38 (1978); Johnson v. N.Y.C. Police Dep't, No. 15-1379, 2016 WL 3277261
at *2 (2d Cir. June 8, 2016); Littlejohn v. City of N.Y., 795 F.3d 297, 314-15 (2d Cir. 2015).4/

2/

See also, e.g., Ferran v. Town of Nassau, 471 F.3d 363, 369 (2d Cir. 2006); Fuller v.
Armstrong, 204 F. App'x 987, 988 (2d Cir. 2006), cert. denied, 552 U.S. 906, 128 S. Ct. 209
(2007); Gildor v. U.S. Postal Serv., 179 F. App'x 756, 758 (2d Cir. 2006); Porter v.
Coughlin, 421 F.3d 141, 144 n.2 (2d Cir. 2005); Hemphill v. New York, 380 F.3d 680, 687
(2d Cir. 2004); Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003); Johnson v. Buffalo
Police Dep't, 46 F. App'x 11, 12 (2d Cir. 2002), cert. denied, 539 U.S. 959, 123 S. Ct. 2645
(2003).

3/

See also, e.g., United States v. Acomb, No. 99-6308, 216 F.3d 1073 (table), 2000 WL
899482 at *1 (2d Cir. June 29, 2000); James v. Phillips, 05 Civ. 1539, 2008 WL 1700125
at *3 (S.D.N.Y. Apr. 9, 2008); Thompson v. Tracy, 00 Civ. 8360, 2008 WL 190449 at *5
(S.D.N.Y. Jan. 17, 2008); Bunting v. Nagy, 452 F. Supp. 2d 447, 454 (S.D.N.Y. 2006);
Rodriguez v. McClenning, 399 F. Supp. 2d 228, 234 & n.52 (S.D.N.Y. 2005); Pack v. Artuz,
348 F. Supp. 2d 63, 78 (S.D.N.Y. 2004); Rector v. Sylvania, 285 F. Supp. 2d 349, 353
(S.D.N.Y. 2003); Walker v. Vaughan, 216 F. Supp. 2d 290, 296-97 (S.D.N.Y. 2002);
Hussein v. The Waldorf-Astoria, 134 F. Supp. 2d 591, 596 (S.D.N.Y. 2001), aff'd, 31 F.
App'x 740 (2d Cir. 2002).

4/

See also, e.g., Patterson v. Cty. of Oneida, 375 F.3d 206, 226 (2d Cir. 2004); DeCarlo v. Fry,
141 F.3d 56, 61 (2d Cir. 1998); Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995);
(continued...)

11
Rather, in order to hold a municipality liable under § 1983 for the unconstitutional acts of its
employees, the plaintiff must plead and prove that the violation of constitutional rights resulted from
a municipal custom or policy. See, e.g., Connick v. Thompson, 563 U.S. 51, 60, 131 S. Ct. 1350,
1359 (2011); Pembaur v. City of Cincinnati, 475 U.S. 469, 478-83, 106 S. Ct. 1292, 1297-300
(1986); Johnson v. N.Y.C. Police Dep't, 2016 WL 3277261 at *2; Littlejohn v. City of N.Y., 795
F.3d at 314-15.5/
The plaintiff need not identify an explicit, official policy or practice. See, e.g.,
Littlejohn v. City of N.Y., 795 F.3d at 314-15; Newton v. City of N.Y., 779 F.3d 140, 152 (2d Cir.
2015), cert. denied, 136 S. Ct. 795 (2016).6/ It is sufficient to show a widespread pattern of behavior
that constitutes a "custom or usage with the force of law" or "the constructive acquiescence of senior

4/

(...continued)
Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 122 (2d Cir. 1991); White v. Cty. of
Dutchess, 15 Civ. 8744, 2016 WL 4449720 at *5 (S.D.N.Y. Aug. 23, 2016); Walker v.
Ponte, 14 Civ. 8507, 2016 WL 4411415 at *8 (S.D.N.Y. Aug. 18, 2016); Muhammad v.
N.Y.C., 15 Civ. 5603, 2016 WL 4367970 at *5 (S.D.N.Y. Aug. 12, 2016); Roberts v. City
of N.Y., 14 Civ. 5198, 2016 WL 4146135 at *7 (S.D.N.Y. Aug. 2, 2016).

5/

See also, e.g., Costello v. City of Burlington, 632 F.3d 41, 49 (2d Cir. 2011); Batista v.
Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983); Masciotta v. Clarkstown Cent. Sch. Dist., 14
Civ. 7128, 2016 WL 4449660 at *11 (S.D.N.Y. Aug. 23, 2016); Jones v. City of N.Y., No.
16-CV-1289, 2016 WL 4435220 at *2 (E.D.N.Y. Aug. 19, 2016); Walker v. Ponte, 2016 WL
4411415 at *8; Sanabria v. Tezlof, 11 Civ. 6578, 2016 WL 4371750 at *8 (S.D.N.Y. Aug.
12, 2016); Muhammad v. N.Y.C., 2016 WL 4367970 at *5; Roberts v. City of N.Y., 2016
WL 4146135 at *7.

6/

See also, e.g., Prince v. Cty. of Nassau, 563 F. App'x 13, 16 (2d Cir. 2014); Patterson v. Cty.
of Oneida, 375 F.3d at 226; Sorlucco v. N.Y.C. Police Dep't, 971 F.2d 864, 870 (2d Cir.
1992); White v. Cty. of Dutchess, 2016 WL 4449720 at *5-6; Campbell v. Ponte, 15 Civ.
8048, 2016 WL 3948103 at *4 (S.D.N.Y. July 19, 2016); Cofield v. Nassau Cty., No.
15CV5768, 2016 WL 3460377 at *3 (E.D.N.Y. June 21, 2016); Goodwine v. City of N.Y.,
15 Civ. 2868, 2016 WL 3017398 at *9 (S.D.N.Y. May 23, 2016); Thomsen v. City of N.Y.,
15 Civ. 2668, 2016 WL 590235 at *10 (S.D.N.Y. Feb. 11, 2016), appeal withdrawn (May
23, 2016).

12
policy-making officials." Patterson v. Cty. of Oneida, 375 F.3d at 226 (quotations omitted); see,
e.g., Connick v. Thompson, 563 U.S. at 61, 131 S. Ct. at 1359 ("Official municipal policy includes
the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so
persistent and widespread as to practically have the force of law."); Belpasso v. City of N.Y., 07 Civ.
3627, 2008 WL 2676579 at *5 (S.D.N.Y. July 2, 2008); Gorton v. Gettel, 04 Civ. 0236, 2007 WL
2154193 at *9 (S.D.N.Y. June 22, 2007), aff'd, 554 F.3d 60 (2d Cir. 2009). "A policy, custom, or
practice may also be inferred where 'the municipality so failed to train its employees as to display
a deliberate indifference to the constitutional rights of those within its jurisdiction.'" Patterson v.
Cty. of Oneida, 375 F.3d at 226; see, e.g., Connick v. Thompson, 563 U.S. at 61, 131 S. Ct. at 1359.
Any analysis of an allegation of municipal liability under § 1983 begins with "the question whether
there is a direct causal link between a municipal policy or custom and the alleged constitutional
deprivation." City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 1203 (1989).
B.

Bradshaw Cannot Establish Municipal Liability
Bradshaw's complaint states that Captain Bailey and Captain Brown are responsible

for the November 20 and November 25, 2015 incidents, respectively, "by being deliberately
indifferent to the rights of others in failing to properly supervise and train their subordinate
employees." (Dkt. No. 2: Compl. ¶ 42.) Bradshaw claims that DOC policies include "subjecting
inmates to attack by other inmates, intentionally delaying inmates medical care and subjecting
inmates to excessive force." (Compl. ¶ 56.) "In addition, the City of New York engaged in a policy
. . . of inadequate screening, hiring, retaining, training, and supervising its employees." (Compl. ¶
57.)
Bradshaw testified that he believes that DOC policy requires correction officers to
protect inmates from assaults by other inmates, and that this policy was violated when he was

13
assaulted by three inmates on November 20, 2015 and Officer Hernandez failed to intervene. (See
pages 1-2, 4-5 above.) Bradshaw claims that DOC "ha[s] . . . an unwritten policy of allowing
inmates to assault other inmates and to try to cover up those assaults by not documenting it and
reporting them as they [are] supposed to." (See page 4 above.) Bradshaw testified that he did not
know "how many officers . . . allow inmates to fight without intervening." (See pages 4-5 above.)
With respect to the November 25, 2015 incident, Bradshaw claimed that he was injured because
DOC has a "policy [of] officers assaulting prisoners and falsifying reports and records and
proclaiming that the prisoner[] was the one . . . that did the assault." (See page 6 above.)
1.

Decisions By Final Policymakers

While "a single action on a policymaker's part is sufficient to create a municipal
policy, [and thus] a single instance of deliberate indifference to subordinates' actions can provide
a basis for municipal liability," Bradshaw provides no evidence that any defendant had
policymaking authority. Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 127 (2d Cir. 2004).
"The fact that a particular official—even a policymaking official—has discretion in the exercise of
particular functions does not, without more, give rise to municipal liability based on an exercise of
that discretion. The official must also be responsible for establishing final government policy
respecting such activity before the municipality can be held liable." Pembaur v. City of Cincinnati,
475 U.S. 469, 481-83, 106 S. Ct. 1292, 1299-300 (1986); see also, e.g., Jeffes v. Barnes, 208 F.3d
49, 57 (2d Cir.) ("It does not suffice for these purposes that the official has been granted discretion
in the performance of his duties."), cert. denied, 531 U.S. 813, 121 S. Ct. 47 (2000). Bradshaw

14
cannot establish that the individual defendants were municipal policymakers without further
evidence regarding their respective roles and authority within DOC.7/
2.

Deliberate Indifference To A Widespread Practice

To establish municipal liability, a plaintiff may show that "'a discriminatory practice
of municipal officials was so persistent or widespread as to constitute a custom or usage with the
force of law, or that a discriminatory practice of subordinate employees was so manifest as to imply
the constructive acquiescence of senior policy-making officials.'" Littlejohn v. City of N.Y., 795
F.3d 297, 315 (2d Cir. 2015); see also, e.g., Amnesty Am. v. Town of W. Hartford, 361 F.3d 113,
126 (2d Cir. 2004) ("[W]here a policymaking official exhibits deliberate indifference to
constitutional deprivations caused by subordinates, such that the official's inaction constitutes a
'deliberate choice,' that acquiescence may 'be properly thought of as a city "policy or custom" that
is actionable under § 1983.'"); Jeffes v. Barnes, 208 F.3d 49, 61 (2d Cir.) ("[I]t is well established

7/

See, e.g., Moton v. City of N.Y., 15 Civ. 6485, 2017 WL 2779784 at *3 (S.D.N.Y. June 15,
2017) ("Plaintiff does not claim that Captain Williams had any policymaking authority.");
Delrosario v. City of N.Y., 07 Civ. 2027, 2010 WL 882990 at *6 (S.D.N.Y. Mar. 4, 2010)
("Plaintiff did not . . . depose any prison officials, including [Captains] Boden and Vasaturo,
or produce any discovery relating to the role of Boden and Vasaturo at Riker's. Plaintiff has
produced no evidence as to what authority each had, what guidelines and policies they were
subject to, and what oversight was in place. Accordingly, the Court cannot allow this claim
to go forward on a theory that either Captain Vasaturo or Boden had final policymaking
authority."); Springle v. Metro. Transp. Auth., 06 Civ. 734, 2008 WL 331362 at *7
(S.D.N.Y. Feb. 1, 2008) (Plaintiff "has failed to adduce any evidence demonstrating that
Kennedy was an official with 'final policymaking authority.'"); Rubio v. Cty. of Suffolk, No.
01-CV-1806, 2007 WL 2993833 at *7 (E.D.N.Y. Oct. 9, 2007) ("[P]laintiffs failed to show
how the several named lieutenants and sergeants, as well as the Chief of Police, had the
policymaking authority necessary to bind the County. The fact that the sergeants,
lieutenants, or the Chief of Police had discretion to process or investigate [plaintiff's]
complaint does not alone give rise to liability."), aff'd, 328 F. App'x 36 (2d Cir. 2009);
Stovall v. City of N.Y., 87 Civ. 4961, 1988 WL 249389 at *4 (S.D.N.Y. Dec. 8, 1988)
("There is nothing in the papers submitted in support of this motion to indicate that Captain
Ridge had any such final policymaking authority so that his decisions became municipal
'policy' for the purposes of § 1983 liability.").

15
that a municipal policymaker may be found to have caused subordinate officials' conduct by reason
of the policymaker's 'acquiescence in a longstanding practice or custom which constitutes the
"standard operating procedure" of the local governmental entity.'"), cert. denied, 531 U.S. 813, 121
S. Ct. 47 (2000).
The Court considers whether Bradshaw's allegations of Officer Hernandez's failure
to intervene during an inmate assault and Office Alphonse's use of excessive force (see pages 1-6
above) suffice to establish deliberate indifference to a widespread practice.8/
Bradshaw cannot establish that these incidents "were done pursuant to municipal
policy, or were sufficiently widespread and persistent to support a finding that they constituted a
custom, policy, or usage of which supervisory authorities," i.e., municipal policymakers, "must have
been aware" but ignored. Jones v. Town of E. Haven, 691 F.3d 72, 81 & n.6 (2d Cir. 2012), cert.
denied, 134 S. Ct. 125 (2013). The handful of alleged incidents were committed by nonpolicymaking employees and, while close in time and within the same facility, were not so
"widespread and persistent" as to trigger municipal liability on these facts. See, e.g., Rubio v. Cty.
of Suffolk, 328 F. App'x 36, 38 (2d Cir. 2009) ("[W]e agree with the District Court that 'a few
violations by a small group of subordinate County employees with no policymaking authority
[cannot] amount to the pervasive and widespread custom or practice necessary for municipal

8/

Bradshaw also challenges Captain Bailey and Captain Brown's refusal to provide prompt
medical care after each incident. (See pages 3-6 above.) Because these two alleged denials
of medical care do not, for reasons discussed below, rise to the level of a constitutional
violation, they cannot support municipal liability. See, e.g., Borg v. Town of Wesport, 685
F. App'x 10, 11 n.2 (2d Cir. 2017) ("[W]ithout an underlying constitutional violation,
Plaintiffs' claim under Monell . . . cannot stand."); Segal v. City of N.Y., 459 F.3d 207, 219
(2d Cir. 2006) ("Because the district court properly found no underlying constitutional
violation, its decision not to address the municipal defendants' liability under Monell was
entirely correct.").

16
liability.'"); Giaccio v. City of N.Y., 308 F. App'x 470, 472 (2d Cir. 2009) (Plaintiff "identifies, at
most, only four examples where the defendants might have disclosed positive drug test results. This
evidence falls far short of establishing a practice that is 'so "persistent or widespread'" as to justify
the imposition of municipal liability."); Joseph v. Doe, No. 16-CV-2004, 2017 WL 4233024 at *9
(E.D.N.Y. Sept. 22, 2017) ("[T]hree examples of police officers carrying out unlawful arrests is not
enough to plausibly allege a pattern of violations in a police department consisting of tens of
thousands of officers."); Calicchio v. Sachem Cent. Sch. Dist., 185 F. Supp. 3d 303, 316 (E.D.N.Y.
2016) ("'There is no ''magic number'' of instances of unconstitutional conduct that will suffice to
permit the inference of a broader municipal policy or custom.' However, courts in this Circuit have
rejected the notion that two, three or even four incidents will support such an inference." (citation
omitted, citing cases)).
3.

Failure To Train, Supervise, Discipline and Screen
a.

Failure To Train

To establish a failure-to-train claim, "at the summary judgment stage, plaintiffs must
'identify a specific deficiency in the city's training program and establish that that deficiency is
closely related to the ultimate injury, such that it actually caused the constitutional deprivation.'"
Green v. City of N.Y., 465 F.3d 65, 81 (2d Cir. 2006); see also, e.g., Okin v. Vill. of
Cornwall-On-Hudson Police Dep't, 577 F.3d 415, 440 (2d Cir. 2009) ("The plaintiff must offer
evidence to support the conclusion that the training program was inadequate."); Amnesty Am. v.
Town of W. Hartford, 361 F.3d 113, 129 (2d Cir. 2004); Williams v. City of N.Y., 16 Civ. 4315,
2017 WL 4158903 at *5 (S.D.N.Y. Sept. 14, 2017). "A pattern of misconduct, while perhaps
suggestive of inadequate training, is not enough to create a triable issue of fact on a failure-to-train
theory." Okin v. Vill. of Cornwall-On-Hudson Police Dep't, 577 F.3d at 440. Bradshaw cites no

17
evidence regarding the City or DOC's training procedures, let alone that those procedures were
inadequate and "actually caused" his injuries.9/
b.

Failure To Supervise

To prevail on a failure to supervise claim, "plaintiffs must establish [the
municipality's] deliberate indifference by showing that 'the need for more or better supervision to
protect against constitutional violations was obvious,' but that [the municipality] made 'no
meaningful attempt' to forestall or prevent the unconstitutional conduct." Amnesty Am. v. Town
of W. Hartford, 361 F.3d 113, 127 (2d Cir. 2004). "An obvious need may be demonstrated through
proof of repeated complaints of civil rights violations; deliberate indifference may be inferred if the
complaints are followed by no meaningful attempt on the part of the municipality to investigate or
to forestall further incidents." Vann v. City of N.Y., 72 F.3d 1040, 1049 (2d Cir. 1995); see also,
e.g., An v. City of N.Y., 230 F. Supp. 3d 224, 230-31 (S.D.N.Y. 2017); Walker v. City of N.Y., 14
Civ. 808, 2015 WL 4254026 at *10 (S.D.N.Y. July 14, 2015) ("In order for a plaintiff to prove
deliberate indifference with respect to failure to supervise/discipline, he must plead one of two

9/

See, e.g., Amnesty Am. v. Town of W. Hartford, 361 F.3d at 130 ("Plaintiffs here have
proffered no evidence of the Town's training programs or advanced any theory as to how a
training deficiency caused the police officers to use excessive force at the second
demonstration. Plaintiffs' failure to train theory is based solely on their evidence that the
police used excessive force on two successive occasions."); Marsh v. Town of E. Hartford,
No. 16-CV-928, 2017 WL 3038305 at *7 (D. Conn. July 18, 2017) ("The failure to offer
evidence regarding the Town's training program will make it impossible for the plaintiff to
identify a specific deficiency in that program, let alone that the deficiency actually caused
the alleged constitutional violation."); Boyd v. Smereczynsky, No. 16-CV-394, 2017 WL
1100426 at *4 (D. Conn. Mar. 23, 2017) (Plaintiff "does not allege any specific deficiency
in New Haven's police officer training regimen that caused her injuries, a fatal gap.");
Delrosario v. City of N.Y., 07 Civ. 2027, 2010 WL 882990 at *7 (S.D.N.Y. Mar. 4, 2010)
("In this case, Plaintiff has failed to conduct any discovery as to the training that prison
officials undergo regarding the housing of cooperating witnesses, the provision of medical
care or—for that matter—any training at the DOC in general.").

18
combinations of facts. First, a plaintiff may establish that (1) 'there was a pattern of allegations of
or complaints about similar unconstitutional activity,' and (2) 'that the municipality consistently
failed to investigate those allegations.' Alternatively, a plaintiff may plead (1) 'that there was a
pattern of actual similar constitutional violations,' and (2) 'the municipality consistently failed to
discipline those involved.'" (citation omitted)).
Aside from his own allegedly unconstitutional treatment, Bradshaw points to no
evidence that City or DOC officials failed to act when presented with an obvious need for more or
better supervision. Nothing in the record describes the supervision DOC employees received,
defendants' disciplinary history, or what investigation was conducted by the City or DOC following
Bradshaw's, or any other inmate's, allegations. See, e.g., Missel v. Cty. of Monroe, 351 F. App'x
543, 546 (2d Cir. 2009) (Plaintiff "has made insufficient factual allegations that the County
Defendants were on notice of and took no action in response to [Deputy] Hildreth's conduct, or that
Hildreth had a history of such behavior that Defendants deliberately ignored."); Selvaggio v.
Patterson, 93 F. Supp. 3d 54, 79 (E.D.N.Y. 2015) ("[E]ven if these five varied allegations over the
course of a ten-year-period were sufficient to put the City on notice of a constitutional problem,
Plaintiff has failed to come forward with evidence to suggest that the City did not meaningfully
investigate the allegations; indeed, she has 'presented no evidence as to the municipality's response
to any prior incident of misconduct.'"); Walker v. City of N.Y., 63 F. Supp. 3d 301, 312 (E.D.N.Y.
2014) ("Plaintiffs have not identified any additional, similar examples of unconstitutional practices
beyond the events they complain of here . . . . The failure to identify any such example is fatal to
Plaintiffs' failure-to-supervise claim." (record citation omitted)), aff'd, 621 F. App'x 74 (2d Cir.
2015).

19
c.

Failure To Discipline

"[M]unicipal inaction such as the persistent failure to discipline subordinates who
violate civil rights could give rise to an inference of an unlawful municipal policy of ratification of
unconstitutional conduct within the meaning of Monell." Batista v. Rodriguez, 702 F.2d 393, 397
(2d Cir. 1983). "'Where plaintiffs seek to hold a municipality liable under a theory of failure to . .
. discipline, . . . they must also show that the municipal policymaker acted with deliberate
indifference.'" Swanson v. City of N.Y., No. 16-CV-3231, 2017 WL 3130322 at *14 (E.D.N.Y. July
21, 2017); accord, e.g., Moses v. Westchester Cty. Dep't of Corr., 10 Civ. 9468, 2017 WL 4386362
at *14 (S.D.N.Y. Sept. 29, 2017).
As with Bradshaw's failure to supervise claim, there is no evidence that City or DOC
officials have inadequately disciplined DOC personnel who violated prisoners' constitutional rights
in this case or any other. See, e.g., Harris v. City of Newburgh, 16 Civ. 2731, 2017 WL 4334141
at *7 (S.D.N.Y. Sept. 27, 2017) ("Plaintiff's conclusory allegation that 'the City Council and City
Manager have failed and refused to punish or attempt to punish police officers who have engaged
in conduct abusive of citizens' rights,' does not contain sufficient facts to allow the Court to draw
the inference that there is a history of consistently failing to discipline officers." (record citation
omitted)); Ferreira v. City of Binghamton, No. 13-CV-107, 2016 WL 3129224 at *7 (N.D.N.Y. June
2, 2016) ("Plaintiff points to no systematic and repeated failures to discipline and oversee officers'
conduct in a way that would lead a juror to conclude 'that the city's policymakers were "knowingly
and deliberately indifferent to the possibility that the police officers were wont" to violate the
constitutional rights of arrestees.' The evidence cited by the Plaintiff instead points to the failings
of the Binghamton Police in this particular incident." (citation omitted)); Delrosario v. City of N.Y.,
07 Civ. 2027, 2010 WL 882990 at *8 (S.D.N.Y. Mar. 4, 2010) ("Plaintiff has failed to put forth any

20
evidence that the City or DOC failed to adequately discipline its personnel. The record is
completely silent with respect to how the DOC responded to complaints against its personnel.").
d.

Failure to Screen Employees

Municipal liability claims asserting a failure to screen employees also require a
showing of deliberate indifference. See, e.g., Aquino v. City of N.Y., 16 Civ. 1577, 2017 WL
384354 at *6 (S.D.N.Y. Jan. 25, 2017); Lehal v. Cent. Falls Det. Facility Corp., 13 Civ. 3923, 2016
WL 7377238 at *8 (S.D.N.Y. Nov. 21, 2016). However, "[o]nly where adequate scrutiny of an
applicant's background would lead a reasonable policymaker to conclude that the plainly obvious
consequence of the decision to hire the applicant would be the deprivation of a third party's federally
protected right can the official's failure to adequately scrutinize the applicant's background constitute
'deliberate indifference.'" Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 411,
117 S. Ct. 1382, 1392 (1997); accord, e.g., Lehal v. Cent. Falls Det. Facility Corp., 2016 WL
7377238 at *8. "[A] finding of culpability simply cannot depend on the mere probability that any
officer inadequately screened will inflict any constitutional injury. Rather, it must depend on a
finding that this officer was highly likely to inflict the particular injury suffered by the plaintiff."
Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. at 412, 117 S. Ct. at 1392; accord, e.g.,
Aquino v. City of N.Y., 2017 WL 384354 at *6.
Bradshaw presents no evidence regarding the backgrounds of any of the individual
defendants, or that the City's or DOC's screening procedures were deficient. See, e.g., Noonan v.
City of N.Y., 14 Civ. 4084, 2015 WL 3948836 at *5 (S.D.N.Y. June 26, 2015) ("Plaintiff has
pleaded no facts that would support an inference that the City had reason to believe that Becker's
background would predispose him to sexual misconduct, nor any facts indicating prior wrongdoing
by Becker."); Rogoz v. City of Hartford, No. 11-CV-00500, 2012 WL 4372189 at *7 (D. Conn.

21
Sept. 24, 2012) ("Plaintiff has provided no facts in support of his failure to screen theory. Plaintiff's
complete failure to mention how the particular backgrounds of the Defendant Officers would have
in any way made it more likely that these officers would violate his federally protected rights is fatal
to his claim.").
***
Defendants are GRANTED summary judgment as to Bradshaw's municipal liability
("Monell") claims with respect to each of the theories in his complaint.
III.

DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON BRADSHAW'S
DENIAL OF MEDICAL TREATMENT CLAIM
A.

Legal Standards Governing Denial Of Medical Treatment Claims
"[N]ot every lapse in medical care is a constitutional wrong." Salahuddin v. Goord,

467 F.3d 263, 279 (2d Cir. 2006). Rather, a deliberate indifference to medical needs claim contains
two requirements:
First, the deprivation of medical care must have been 'sufficiently serious.' Second,
the defendant must have acted or failed to act with 'a sufficiently culpable state of
mind,' which, 'in prison conditions cases' is 'deliberate indifference to inmate health
or safety.' Under the Fourteenth Amendment, deliberate indifference is measured
from an objective perspective.
Smith v. Outlaw, 15 Civ. 9961, 2017 WL 4417699 at *2 (S.D.N.Y. Sept. 30, 2017) (citations
omitted); see also, e.g., McKinney v. New Haven Police Dep't, No. 17-CV-1663, 2017 WL 5137583
at *4 (D. Conn. Nov. 6, 2017); Davis v. McCready, 14 Civ. 6405, 2017 WL 4803918 at *4-5
(S.D.N.Y. Oct. 23, 2017).10/

10/

Neither party addressed whether Bradshaw was convicted or a pretrial detainee in November
2015. (See generally Dkt. No. 50: Def. Br.; Dkt. No. 57: Bradshaw Br.) However,
Bradshaw's complaint states: "On November 20, 2015, Plaintiff [was in] the care, custody
and control of DOC in connection with a pending criminal proceeding and was incarcerated
(continued...)

22
As to the first requirement, "[o]nly deprivations denying the minimal civilized
measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment
violation." Salahuddin v. Goord, 467 F.3d at 279 (quotations omitted). Determining whether an
objectively serious deprivation occurred involves two inquiries:
The first inquiry is whether the prisoner was actually deprived of adequate medical
care. As the Supreme Court has noted, the prison official's duty is only to provide
reasonable care. Thus, "prison officials who act reasonably [in response to an
inmate-health risk] cannot be found liable under the Cruel and Unusual Punishments
Clause," and, conversely, failing "to take reasonable measures" in response to a
medical condition can lead to liability.
Second, the objective test asks whether the inadequacy in medical care is
sufficiently serious. This inquiry requires the court to examine how the offending
conduct is inadequate and what harm, if any, the inadequacy has caused or will likely
cause the prisoner. For example, if the unreasonable medical care is a failure to
provide any treatment for an inmate's medical condition, courts examine whether the
inmate's medical condition is sufficiently serious. Factors relevant to the seriousness
of a medical condition include whether "a reasonable doctor or patient would find
[it] important and worthy of comment," whether the condition "significantly affects
an individual's daily activities," and whether it causes "chronic and substantial pain."
In cases where the inadequacy is in the medical treatment given, the seriousness

10/

(...continued)
at Manhattan Detention Center." (Dkt. No. 2: Compl. ¶ 15, emphasis added.) Claims for
deliberate indifference to medical needs brought by pretrial detainees are analyzed under the
Fourteenth Amendment's Due Process Clause, not the Eighth Amendment. See, e.g., Smith
v. Outlaw, 2017 WL 4417699 at *2 ("Plaintiff was a pretrial detainee of the City during the
events giving rise to his claims and his allegations are thus assessed under the Due Process
Clause of the Fourteenth Amendment. Deliberate indifference claims of pretrial detainees
are not assessed under the Eighth Amendment because such detainees 'have not been
convicted of a crime and thus may not be punished in any manner—neither cruelly nor
otherwise.'" (citation omitted)). While the subjective element under the Fourteenth
Amendment varies from Eighth Amendment cases, the objective element remains the same.
See, e.g., White v. City of N.Y., 16 Civ. 6183, 2017 WL 3575700 at *3 (S.D.N.Y. Aug. 17,
2017) ("The objective prong is the same regardless of whether the plaintiff is a pretrial
detainee or a prisoner."); Fernandini v. United States, 15 Civ. 3843, 2017 WL 3208587 at
*7 n.5 (S.D.N.Y. July 26, 2017) (same); Cuffee v. City of N.Y., 15 Civ. 8916, 2017 WL
1134768 at *5 (S.D.N.Y. Mar. 27, 2017) (same). The Court in any event does not reach the
subjective element of Bradshaw's claim as he cannot establish a "sufficiently serious"
deprivation in care.

23
inquiry is narrower. For example, if the prisoner is receiving on-going treatment and
the offending conduct is an unreasonable delay or interruption in that treatment, the
seriousness inquiry "focus[es] on the challenged delay or interruption in treatment
rather than the prisoner's underlying medical condition alone." Thus, although we
sometimes speak of a "serious medical condition" as the basis for an Eighth
Amendment claim, such a condition is only one factor in determining whether a
deprivation of adequate medical care is sufficiently grave to establish constitutional
liability.
Id. at 279-80 (citations omitted); see also, e.g., Cooper v. Orange Cty., 15 Civ. 10075, 2017 WL
3309754 at *3-4 (S.D.N.Y. Aug. 2, 2017); Fernandini v. United States, 2017 WL 3208587 at *7.11/

11/

As the above passage from Salahuddin indicates, "'cases regarding inadequate medical care
generally fall into two categories: denial of treatment and delay in treatment [and . . . ] the
analyses are subtly different.'" Ray v. Zamilus, 13 Civ. 2201, 2017 WL 4329722 at *8
(S.D.N.Y. Sept. 27, 2017). "[W]hen medical treatment is denied for a prolonged period of
time, or when a degenerative medical condition is neglected over sufficient time, the alleged
deprivation of care can no longer be characterized as 'delayed treatment' but may properly
be viewed as a 'refusal' to provide medical treatment." Smith v. Carpenter, 316 F.3d 178,
189 n.10 (2d Cir. 2003); see also, e.g., Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000)
("This is not a case of delayed treatment as the dissent suggests. Defendants' conduct on this
record can be construed as: (1) a flat refusal of medical treatment for a condition that if left
untreated is serious and painful; or (2) a conditional refusal of such treatment, subject to
Harrison's consent to undergo an unwanted medical procedure that would deprive him of a
body part he wished to keep."). Bradshaw does not claim that he was denied treatment
altogether or that the treatment he received was inadequate; rather, Bradshaw's allegations
focus on the delay in treatment until four days after the November 20, 2015 incident and
nine hours after the November 25, 2015 incident. (See generally Dkt. No. 2: Compl.; see
pages 2-6 above.) Bradshaw's injuries did not result in a "degenerative medical condition,"
and his treatment (except as further noted below) was not so delayed that it could be
considered a denial of treatment altogether. See, e.g., Salahuddin v. Goord, 467 F.3d at 281
& n.7 (five-month lapse in "course of treatment for an inmate's Hepatitis C" treated as delay
in care); Fernandini v. United States, 2017 WL 3208587 at *8-9 ("Plaintiff alleges that he
was bitten by a rat on his arm on January 6, 2014. On January 9, 2014—three days
later—Plaintiff received medical treatment for his bite . . . . The allegations in the
[complaint] do not suggest that the three-day delay in receiving medical treatment was
'needlessly prolonged.'" (record citation & fn. omitted)); Pierre v. Cty. of Broome, No. 05CV-332, 2007 WL 625978 at *5 (N.D.N.Y. Feb. 23, 2007) ("[T]his is not a failure to treat
case, but a delayed treatment case . . . . Plaintiff offers insufficient evidence to show that the
two to three month delay in the provision of proper medication presented a substantial risk
of harm."). The Court accordingly interprets Bradshaw's allegations as raising only a delay
in treatment claim.

24
"Where the plaintiff alleges delay or interruption in treatment rather than failure to
receive treatment, 'the serious medical need inquiry can properly take into account the severity of
the temporary deprivation alleged by the prisoner.'" Patterson v. Westchester Cty., 13 Civ. 0194,
2014 WL 1407709 at *5 (S.D.N.Y. Apr. 11, 2014) (Peck, M.J.), R. & R. adopted, 2014 WL 2759072
(S.D.N.Y. June 16, 2014). Thus, "it's the particular risk of harm faced by a prisoner due to the
challenged deprivation of care, rather than the severity of the prisoner's underlying medical
condition, considered in the abstract, that is relevant for Eighth Amendment purposes." Smith v.
Carpenter, 316 F.3d at 186; see also, e.g., Ray v. Zamilus, 2017 WL 4329722 at *8 ("Where a
plaintiff 'suffered from a delay in treatment, rather than a complete lack of treatment, [however,] the
objective element must be satisfied by harm that resulted from the delay.'"); Demeo v.
Koenigsmann, 11 Civ. 7099, 2017 WL 2937619 at *8 (S.D.N.Y. July 7, 2017).
That is not to say that proof of physical harm is required. "[A]n Eighth Amendment
claim may be based on a defendant's conduct in exposing an inmate to an unreasonable risk of future
harm." Smith v. Carpenter, 316 F.3d at 188; see also, e.g., Shepherd v. Hogan, 181 F. App'x 93, 95
(2d Cir. 2006) ("A future risk can suffice to constitute a substantial risk of serious harm, even if an
inmate experiences no present symptoms."). "Yet, although demonstrable adverse medical effects
may not be required under the Eighth Amendment, the absence of present physical injury will often
be probative in assessing the risk of future harm." Smith v. Carpenter, 316 F.3d at 188 (fn. omitted).
The Court thus is "entitled to consider the absence of adverse medical effects in evaluating the
objective sufficiency of [a plaintiff's] Eighth Amendment claim." Id. at 187.12/

12/

See also, e.g., Smith v. Carpenter, 316 F.3d at 187 ("The absence of adverse medical effects
or demonstrable physical injury is one such factor that may be used to gauge the severity of
the medical need at issue. Indeed, in most cases, the actual medical consequences that flow
(continued...)

25
B.

Bradshaw Has Not Established A Sufficiently Serious Deprivation
Following the November 20, 2015 inmate assault, Bradshaw alleges that Officer

"Hernandez, Captain Bailey and Captain Brown intentionally delayed [Bradshaw] access to medical
care [for] almost four (4) days [until November 24, 2015] and w[ere] deliberately indifferent to
[Bradshaw's] health and safety." (Dkt. No. 2: Compl. ¶ 38.) On November 25, 2015, Officer
Alphonse allegedly assaulted Bradshaw at approximately 1 P.M., but Bradshaw did not receive
treatment until approximately 10:30 P.M. that evening. (See pages 5-6 above.)
Bradshaw cannot establish that the respective four day and nine hour delays in
treatment following these incidents were sufficiently serious. Bradshaw's November 20, 2015
injuries did not prevent him from eating, drinking, walking, sitting or sleeping, and, aside from back
pain which lasted a week, his pain completely subsided "[t]wo to three days" after the incident. (See
page 4 above.)13/ PA Grandoit observed that Bradshaw had a "healed human bite [mark] in the left

12/

(...continued)
from the alleged denial of care will be highly relevant to the question of whether the denial
of treatment subjected the prisoner to a significant risk of serious harm." (citations & fn.
omitted)); Ray v. Zamilus, 2017 WL 4329722 at *8; Villafane v. Sposato, No. 16-CV-3674,
2017 WL 4179855 at *20 (E.D.N.Y. Aug. 22, 2017), R. & R. adopted, 2017 WL 4157220
(E.D.N.Y. Sept. 15, 2017).

13/

Even if Bradshaw's claim as to the November 20, 2015 incident can be viewed as a complete
denial of medical care because much of his condition allegedly resolved prior to receiving
treatment, defendants are still entitled to summary judgment given the lack of severity of
Bradshaw's medical condition. See, e.g., Armand v. Simonson, 12 Civ. 7709, 2016 WL
1257972 at *14 (S.D.N.Y. Mar. 30, 2016) ("Here, Plaintiff has alleged that she had (1)
scrapes on her legs, back, elbow, and arm, and (2) a 'pounding' headache. Numerous
decisions by courts in the Second Circuit have held that scrapes are not sufficiently serious
to implicate the Eighth Amendment." (record citation omitted, citing cases)); Goodwin v.
Kennedy, No. 13-CV-1774, 2015 WL 1040663 at *12 (E.D.N.Y. Mar. 10, 2015) ("Courts
in this Circuit have consistently held that cuts, lacerations, bruises, and other superficial
injuries similar to those Plaintiff sustained here 'are not sufficiently serious to support' a
deliberate indifference claim." (citing cases)); Dallio v. Hebert, 678 F. Supp. 2d 35, 44
(continued...)

26
upper back area," "a small scratch mark in the 2nd digit of the left hand" and "[t]iny bruises on [his]
forehead." (See page 4 above.) Bradshaw was not prescribed any medication nor was he referred
to a physician for further treatment. (Id.) On November 25, 2015, Dr. Kerrison treated Bradshaw's
cut finger several hours later by cleaning and bandaging the wound and prescribing ibuprofen;
Urgicare physicians "glued the wound[] shut" and performed an x-ray of Bradshaw's hand that
revealed no fractures. (See page 6 above.)
As to either incident, Bradshaw has not produced any evidence that his injuries
worsened, or that he was subjected to an unreasonable risk of future harm, because of any delay.
See, e.g., Fernandini v. United States, 15 Civ. 3843, 2017 WL 3208587 at *9 (S.D.N.Y. July 26,
2017) ("The allegations in the [complaint] do not suggest that the three-day delay in receiving
medical treatment was 'needlessly prolonged.' While the Court accepts as true that Plaintiff felt pain
from the bite, and that he experienced 'a burning sensation and numbness radiating up his arm and
down to his hand,' nothing in the [complaint] suggests that the three-day wait time caused 'chronic
and substantial pain' or worsened Plaintiff's condition."); Gantt v. Horn, 09 Civ. 7310, 2013 WL
865844 at *9 (S.D.N.Y. Mar. 8, 2013) (Plaintiff "has not alleged that any delays in his treatment
caused any symptoms of his underlying illnesses to worsen, or that any delays materially altered the
way his diseases have since affected him. Furthermore, [plaintiff] has not alleged, beyond making

13/

(...continued)
(N.D.N.Y. 2009) (Plaintiff's "cuts, bruises and pain sustained in an excessive force incident
. . . [did] not amount to a condition of urgency that may produce death, degeneration or
extreme pain." (citing cases)); Benitez v. Straley, 01 Civ. 0181, 2006 WL 5400078 at *12
(S.D.N.Y. Feb. 16, 2006) (Plaintiff "claims [defendants] were indifferent to his medical
needs by refusing to render aid to a cut on his head . . . [and] his wrist injuries. [Plaintiff]
has failed to demonstrate that these injuries were sufficiently serious. They are not
permanent and there is no claim that they affect his daily activities." (record citations
omitted)).

27
conclusory claims, that any delay in treatment, or any inadequacy of such treatment, has put him at
an 'unreasonable risk of future harm.'"); Ferguson v. Cai, 11 Civ. 6181, 2012 WL 2865474 at *4
(S.D.N.Y. July 12, 2012) (Plaintiff "has not alleged that the single delay in treatment caused any
symptoms of his underlying illness to worsen, nor that it materially altered the way in which his
disease thereafter affected him."). Moreover, Bradshaw's wounds were largely superficial, and
either resolved on their own or were treated effectively despite the delay.14/
Defendants' summary judgment motion is GRANTED as to Bradshaw's denial of
medical treatment claim.
IV.

DEFENDANTS ARE GRANTED SUMMARY JUDGMENT ON BRADSHAW'S
EQUAL PROTECTION CLAIM
The Fourteenth Amendment provides that "[n]o State shall . . . deny to any person

within its jurisdiction the equal protection of the laws." U.S. Const. Amend. XIV § 1. "[T]he Equal
Protection Clause 'is essentially a direction that all persons similarly situated should be treated
alike.'" Kwong v. Bloomberg, 723 F.3d 160, 169 (2d Cir. 2013), cert. denied, 134 S. Ct. 2696
(2014). "To prove a violation of the Equal Protection Clause, . . . a plaintiff must demonstrate that
he was treated differently than others similarly situated as a result of intentional or purposeful
discrimination." Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005); accord, e.g., Mishtaku v.
Espada, 669 F. App'x 35, 36 (2d Cir. 2016).

14/

Compare Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003) ("[T]he failure to provide
treatment for an otherwise insignificant wound may violate the Eighth Amendment if the
wound develops signs of infection, creating a substantial risk of injury in the absence of
appropriate medical treatment."); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)
("A prisoner who nicks himself shaving obviously does not have a constitutional right to
cosmetic surgery. But if prison officials deliberately ignore the fact that a prisoner has a
five-inch gash on his cheek that is becoming infected, the failure to provide appropriate
treatment might well violate the Eighth Amendment.").

28
"To state a race-based claim under the Equal Protection Clause, a plaintiff must
allege that a government actor intentionally discriminated against him on the basis of his race."
Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir. 2000). "A plaintiff could point to a law or
policy that 'expressly classifies persons on the basis of race.' Or, a plaintiff could identify a facially
neutral law or policy that has been applied in an intentionally discriminatory manner. A plaintiff
could also allege that a facially neutral statute or policy has an adverse effect and that it was
motivated by discriminatory animus." Id. (citations omitted); accord, e.g., Bryant v. S. Country
Cent. Sch. Dist., No. 14-CV-5621, 2017 WL 1216553 at *8 (E.D.N.Y. Mar. 31, 2017).
Bradshaw alleges that "the individual defendants[] failed to protect or delayed
[Bradshaw] access to medical care intentionally because of his national origin, and/or race." (Dkt.
No. 2: Compl. ¶ 43.) "By virtue of the foregoing," Bradshaw claims he "was deprived of his rights
under the Equal Protection Clause of the United States Constitution." (Compl. ¶ 44.) Bradshaw
suspects that Officer Hernandez did not intervene because Officer Hernandez and the assailants are
Hispanic, and Bradshaw is black. (See page 3 above.) Bradshaw testified that on one occasion he
"kept asking [Officer Hernandez] for a blanket . . . in the cold winter and he didn't get it"; Bradshaw
stated that "when Hispanic prisoners ask [Officer Hernandez] for things, it's done more
immediately." (Id.) Bradshaw also noted that when his assailants asked Officer Hernandez to shut
off the television prior to their assault, Officer Hernandez did so. (Id.)
Bradshaw's observation that Officer Hernandez acts "more immediately" for Hispanic
prisoners is entirely vague, and Bradshaw can only speculate that Officer Hernandez was racially
motivated because he is Hispanic and Bradshaw is black. These conclusory allegations do not
support an Equal Protection claim. See, e.g., Clyburn v. Shields, 33 F. App'x 552, 555 (2d Cir.
2002) ("[C]laims of race-based discrimination under the Equal Protection Clause . . . require that

29
intentional discrimination be alleged in a non-conclusory fashion."); Traylor v. Hammond, 94 F.
Supp. 3d 203, 215 (D. Conn. 2015) ("'[I]t is hornbook law that the mere fact that something bad
happens to a member of a particular racial group does not, without more, establish that it happened
because the person is a member of that racial group.' 'The naked assertion by [a] plaintiff that "race
was a motivating factor" without a fact-specific allegation of a causal link between defendant's
conduct and the plaintiff's race is too conclusory to survive a motion to dismiss.'" (citation omitted)).
Moreover, Bradshaw does not submit any evidence that the other defendants were racially
motivated, or that any other prisoners, similarly situated or otherwise, were treated differently.
Bradshaw's claim that the individual defendants failed to intervene, denied him
medical care, or otherwise treated him differently than other inmates based on his race thus is wholly
speculative.15/ See, e.g., Fleurizard v. City of New Haven, No. 16-CV-01206, 2017 WL 4273614
at *7 (D. Conn. Sept. 26, 2017) ("Beyond alleging that Hines used racial epithets, [plaintiff] has not

15/

Generally, a plaintiff is required to show similarly situated comparators whether pursuing
a selective enforcement or "class of one" Equal Protection claim. See, e.g., 33 Seminary
LLC v. City of Binghamton, 670 F. App'x 727, 729-30 (2d Cir. 2016), cert. denied, 2017 WL
3036772 (Oct. 2, 2017); Artec Constr. & Dev. Corp. v. N.Y.C. Dep't of Hous. Pres. & Dev.,
15 Civ. 9494, 2017 WL 782911 at *2-3 (S.D.N.Y. Feb. 27, 2017). The Second Circuit,
however, has clarified that "a plaintiff who . . . alleges an express racial classification, or
alleges that a facially neutral law or policy has been applied in an intentionally
discriminatory race-based manner, or that a facially neutral statute or policy with an adverse
effect was motivated by discriminatory animus, is not obligated to show a better treated,
similarly situated group of individuals of a different race in order to establish a claim of
denial of equal protection." Pyke v. Cuomo, 258 F.3d 107, 110 (2d Cir. 2001); accord, e.g.,
Patterson v. City of N.Y., No. 16-CV-3525, 2017 WL 3432718 at *9 (E.D.N.Y. Aug. 9,
2017). Yet plaintiffs still, "of course, [are] required to substantiate their claim that the
[alleged violation] was motivated by racial discrimination." Pyke v. Cuomo, 258 F.3d at
110. To be clear, Bradshaw's claim fails because he has no competent evidence that any of
the individual defendants were motivated by racial discrimination. The Court's reference to
other similarly situated prisoners should not be interpreted as imposing a heightened
evidentiary burden on Bradshaw; rather, the Court notes the absence of such evidence solely
to clarify that Bradshaw has not presented any evidence—direct or circumstantial—to
support an Equal Protection violation.

30
alleged any facts indicating that his treatment by the defendants was because of his race, nor has he
alleged that persons of another race were treated differently. . . . Additionally, mere racial epithets
are alone insufficient to state a claim under the Fourteenth Amendment, without some additional
allegation linking the racial epithet to adverse treatment in violation of his rights."); West v. Goord,
No. 05-CV-447, 2017 WL 3251253 at *16 (W.D.N.Y. July 31, 2017) ("Here, Plaintiff submits no
evidence sufficient to raise a triable issue of fact that he was treated differently or intentionally
discriminated against as an African-American inmate. . . . Plaintiff does not argue, much less submit
any proof, that the restriction in facility access was either racially motivated or that it was applied
to him and not other, similarly-situated inmates."); Bennett v. Care Corr. Sol. Med. Contracter, 15
Civ. 3746, 2017 WL 1167325 at *10 n.17 (S.D.N.Y. Mar. 24, 2017) ("[T]he Court could construe
Plaintiff's claim that he was 'racially profiled' as an Equal Protection Claim under the Fourteenth
Amendment. . . . Here, Plaintiff has not pled any facts that suggest he was treated differently than
other prisoners based on his race."). Defendants' summary judgment motion as to Bradshaw's Equal
Protection claim is GRANTED.
V.

DEFENDANTS ARE GRANTED SUMMARY JUDGMENT ON BRADSHAW'S
STATE LAW NEGLIGENCE CLAIMS, BUT NOT THE INTENTIONAL TORT
CLAIMS, AGAINST THE INDIVIDUAL DEFENDANTS
A.

Legal Standards Governing New York's Notice Of Claim Statutes
"[I]n a federal court, state notice-of-claim statutes apply to state-law claims." Hardy

v. N.Y.C. Health & Hosp. Corp., 164 F.3d 789, 793 (2d Cir. 1999); see also, e.g., Santiago v. City
of N.Y., 697 F. App'x 36, 38 (2d Cir. 2017) ("Finally, to the extent [plaintiff] argues that, because
he filed suit in federal court, his state law claims are not subject to dismissal for failure to comply
with New York State's notice-of-claim requirement, N.Y. Gen. Mun. Law § 50-e, he is mistaken.").
State notice of claim statutes apply even where a plaintiff brings suit under, for example, § 1983 and

31
includes pendent state law claims. See, e.g., Hardy v. N.Y.C. Health & Hosp. Corp., 164 F.3d at
793; Hardy v. Daly, 16 Civ. 8443, 2017 WL 3917162 at *3 (S.D.N.Y. Sept. 6, 2017); Cruz v. City
of N.Y., 232 F. Supp. 3d 438, 448 (S.D.N.Y. 2017).
Subject to certain exceptions, a notice of claim is a condition precedent to suit against
the City or its employees. See, e.g., Jean-Laurent v. Wilkerson, 461 F. App'x 18, 24 n.3 (2d Cir.
2012) ("A notice of claim is a condition precedent to the filing of an action against an employee of
the City of New York."); Harvey v. City of N.Y., No. 16-CV-00901, 2017 WL 5027886 at *3
(E.D.N.Y. Oct. 30, 2017); Johnson v. City of N.Y., 15 Civ. 8195, 2017 WL 2312924 at *7 (S.D.N.Y.
May 26, 2017); Vargas v. City of N.Y., 105 A.D.3d 834, 836, 963 N.Y.S.2d 278, 280 (2d Dep't
2013) ("'[P]ersons seeking to recover in tort against a municipality are required, as a precondition
to suit, to serve a Notice of Claim.'"). "Notice of claim requirements 'are construed strictly by New
York state courts.' Failure to comply with these requirements ordinarily requires a dismissal for
failure to state a cause of action." Hardy v. N.Y.C Health & Hosp. Corp., 164 F.3d at 793-94
(citations omitted); accord, e.g., Kennedy v. Arias, 12 Civ. 4166, 2017 WL 2895901 at *12
(S.D.N.Y. July 5, 2017); Molina v. Cty. of Westchester, 16 Civ. 3421, 2017 WL 1609021 at *6
(S.D.N.Y. Apr. 28, 2017).
New York's notice of claim statute, titled "Civil actions against employees of the city
of New York," states: "No action or proceeding instituted hereunder . . . shall be prosecuted or
maintained against the city or any agency or an employee unless notice of claim shall have been
made and served upon the city in compliance with section fifty-e of this chapter and within ninety
days after the claim arises." Gen. Mun. Law § 50-k(6). Section 50-e, in turn, states:
In any case founded upon tort where a notice of claim is required by law as a
condition precedent to the commencement of an action . . . against a public
corporation, as defined in the general construction law, or any officer, appointee or

32
employee thereof, the notice of claim shall comply with and be served in accordance
with the provisions of this section within ninety days after the claim arises.
Gen. Mun. Law § 50-e(1)(a). The general construction law defines "public corporation" as including
"a municipal corporation," which itself is defined as "a county, city, town, village [or] school
district." Gen. Constr. Law § 66(1)-(2).
B.

Bradshaw's Claims Against The City Are Dismissed For Failure to Serve A
Notice Of Claim
Bradshaw brings six state law tort claims against defendants for negligence; assault;

battery; false imprisonment; negligent hiring, training and supervision; and intentional infliction of
emotional distress. (Dkt. No. 2: Compl. ¶¶ 65-89.)16/ Defendants argue that Bradshaw never served
a notice of claim in accordance with New York law. (Dkt. No. 50: Def. Br. at 16-17.) In response,
Bradshaw claims that he "filed a timely notice of claim notarized February 5, 2016 regarding [the]
incident on November 25, 201[5]," but not the incident on November 20, 2015. (Dkt. No. 57:
Bradshaw Br. ¶ 8.) Bradshaw does not specify how he served the notice form or on whom, although
the caption of the notice states, "SUPREME COURT OF THE STATE OF NEW YORK COUNTY
OF BRONX: CIVIL TERM." (Bradshaw Br. Ex. 1 at 1.)
Notice of claim forms must be served in accordance with Gen. Mun. Law § 50-e:

16/

See, e.g., 2002 Lawrence R. Buchalter Alaska Tr. v. Philadelphia Fin. Life Assur. Co., 96
F. Supp. 3d 182, 216 (S.D.N.Y. 2015) ("Under New York law, negligence sounds in tort.");
Junior v. City of N.Y., Hous. Pres. & Dev. Corp., 12 Civ. 3846, 2013 WL 646464 at *3
(S.D.N.Y. Jan. 18, 2013) ("[N]egligent supervision . . . sounds in tort."); Gonzalez v. City
of N.Y., 133 A.D.3d 65, 67, 17 N.Y.S.3d 12, 15 (1st Dep't 2015) (discussing "New York's
long recognized tort of negligent hiring and retention"); Burks v. State, 119 A.D.3d 1302,
1303, 989 N.Y.S.2d 922 (3d Dep't 2014) (discussing "the intentional tort of false
imprisonment"); Rueckert v. Cohen, 116 A.D.3d 1026, 1026, 983 N.Y.S.2d 894 (2d Dep't
2014) (discussing "the torts of assault and battery"); Reilly v. Garden City Union Free Sch.
Dist., 89 A.D.3d 1075, 1076, 934 N.Y.S.2d 204, 206 (2d Dep't 2011) (discussing "the tort
of intentional infliction of emotional distress").

33
The notice shall be served on the public corporation against which the claim is made
by delivering a copy thereof personally, or by registered or certified mail, to the
person designated by law as one to whom a summons in an action in the supreme
court issued against such corporation may be delivered, or to an attorney regularly
engaged in representing such public corporation or, in a city with a population of
over one million, by electronic means in a form and manner prescribed by such city.
Gen. Mun. Law § 50-e(3)(a); see also Gen. Mun. Law § 50-k(6). "The person designated by law
to receive the notice of claim, on behalf of the City of New York, is the Corporation Counsel, or his
designee, or the New York City Comptroller." Viruet v. City of N.Y., 181 Misc. 2d 958, 961, 695
N.Y.S.2d 663, 666 (Sup. Ct. Bronx Cty. 1999) (fns. & citations omitted), aff'd, 277 A.D.2d 33, 715
N.Y.S.2d 406 (2000), certified question answered & aff'd, 97 N.Y.2d 171, 738 N.Y.S.2d 2 (2001);
see also C.P.L.R. § 311(a)(2); N.Y.C. Admin. Code § 7-201.
Bradshaw presents no evidence that he served the notice personally, electronically,
or via registered or certified mail (or in any other way) on Corporation Counsel or the City
Comptroller. Bradshaw's vague statement that he "filed a timely notice of claim," especially where
his form is captioned for Supreme Court, Bronx County, does not permit the Court to infer that
service was made in accordance with the statute, or even indicate who received the notice, if anyone.
See, e.g., Hardy v. N.Y.C. Health & Hosp. Corp., 164 F.3d 789, 793–94 (2d Cir. 1999) ("Notice of
claim requirements 'are construed strictly by New York state courts.' Failure to comply with these
requirements ordinarily requires a dismissal for failure to state a cause of action." (citations
omitted)).17/

17/

The Court adds that defendants deny receiving Bradshaw's notice via proper service or
otherwise (Def. Br. at 17), and thus the savings provision contained in Gen. Mun. Law §
50-e(3)(c) cannot benefit Bradshaw. It states:
If the notice is served within the period specified by this section, but in a manner not
in compliance with the provisions of this subdivision, the service shall be valid if the
(continued...)

34
Summary judgment therefore is GRANTED on all of Bradshaw's state law tort claims
against the City for failure to comply with the statutory notice of claim requirements. See, e.g.,
Purcell v. N.Y. Police Dep't, No. 17-CV-5673, 2017 WL 4792236 at *2 (E.D.N.Y. Oct. 23, 2017)
("[I]n order to proceed on state law claims against the City of New York, Plaintiff . . . must allege
that she filed a timely notice of claim with the City."); Barnes v. City of N.Y., 13 Civ. 7283, 2015
WL 5052508 at *8 (S.D.N.Y. Aug. 26, 2015) ("To the extent that Plaintiff brings state-law tort
claims against the City of New York, those claims are dismissed for failure to f[ile] a notice of
claim, a statutory condition precedent to suit.").
C.

Bradshaw's Intentional Tort Claims Against The Individual Defendants Survive
When a tort claim is brought against a city employee in his or her individual capacity,

the Notice requirement is triggered only where the city has a statutory indemnification obligation:
Service of the notice of claim upon an . . . employee of a public corporation shall not
be a condition precedent to the commencement of an action or special proceeding
against such person. If an action or special proceeding is commenced against such

17/

(...continued)
public corporation against which the claim is made demands that the claimant or any
other person interested in the claim be examined in regard to it, or if the notice is
actually received by a proper person within the time specified by this section, and the
public corporation fail[s] to return the notice, specifying the defect in the manner of
service, within thirty days after the notice is received.
Gen. Mun. Law § 50-e(3)(c). "[S]ection 50-e (3)(c), which saves claims from dismissal on
account of defects in the manner of service, does not excuse a plaintiff's failure to serve a
timely notice of claim on the correct public entity." Scantlebury v. N.Y.C. Health & Hosps.
Corp., 4 N.Y.3d 606, 608, 797 N.Y.S.2d 394, 395 (2005). Bradshaw had an "obligation to
comply with [Gen. Mun. Law § 50-e](3)(a) by serving the correct public entity before
defects in the manner of service may be excused." Scantlebury v. N.Y.C. Health & Hosps.
Corp., 4 N.Y.3d at 613, 797 N.Y.S.2d at 399; accord, e.g., Castro-Castillo v. City of N.Y.,
78 A.D.3d 406, 910 N.Y.S.2d 68, 68 (1st Dep't 2010) ("It is well settled that service of the
requisite notice of claim must be made upon the correct party, and a plaintiff may not avoid
dismissal in that regard by invoking the savings provision of General Municipal Law §
50–e(3)(c)." (citation omitted)).

35
person, but not against the public corporation, service of the notice of claim upon the
public corporation shall be required only if the corporation has a statutory obligation
to indemnify such person under this chapter or any other provision of law.
Gen. Mun. Law § 50-e(1)(b). The indemnification provision states:
The city shall indemnify and save harmless its employees in the amount of any
judgment obtained against such employees in any state or federal court . . . provided
that the act or omission from which such judgment . . . arose occurred while the
employee was acting within the scope of his public 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 damages were sustained; the duty to indemnify and save harmless
prescribed by this subdivision shall not arise where the injury or damage resulted
from intentional wrongdoing or recklessness on the part of the employee.
Gen. Mun. Law § 50-k(3).
Defendants argue that because Bradshaw's remaining claims against the individual
defendants are "founded upon tort," Gen. Mun. Law § 50-e(1)(a), and the City is obligated to
indemnify the individual defendants under Gen. Mun. Law § 50-e(1)(b) and § 50-k(3), the individual
defendants are entitled to summary judgment on those claims. (Dkt. No. 50: Def. Br. at 17.) As
evidence that indemnification is required, defendants argue that "the City has answered for the
[defendant] correction officers and captains, which demonstrates that the City has determined that
the employees were acting in the scope of their employment, in furtherance of their duties,
consistently with agency rule and regulations, and are eligible for representation under the GML."
(Id.)
Defendants blur the distinction between eligibility for representation and
indemnification, conflating two separate, if overlapping, inquiries.18/ Although the individual

18/

See, e.g., Jean-Laurent v. Wilkerson, 461 F. App'x 18, 25-26 (2d Cir. 2012) ("[T]he interplay
between [Gen. Mun. Law] § 50-e(1) and § 50-k(3) is quite complicated and there does not
appear to be clear authority addressing whether [plaintiff] was obliged to file a notice of
claim under the circumstances presented here. Whereas the question of whether a City
(continued...)

36
defendants are represented by Corporation Counsel, they are not entitled to City indemnification for
any "injury or damage" that Bradshaw sustained resulting from their "intentional wrongdoing or
recklessness." Gen. Mun. Law § 50-k(3). Defendants do not explain why the individual defendants
are entitled to summary judgment despite the indemnification provision's clear language and
Bradshaw's numerous allegations of intentional wrongdoing that, for purposes of this motion, are
undisputed. (See Dkt. No. 49: Def. Rule 56.1 Stmt. at n.1); see, e.g., Jackson v. City of N.Y., 14
Civ. 5755, 2015 WL 5698535 at *18 (S.D.N.Y. Sept. 28, 2015) ("The movants failed to make any
arguments on the issue of individual liability, whether the City of New York is required to
indemnify Vairo and whether she was acting within the scope of her employment. Thus, dismissing
the state-law claims against Vairo in her individual capacity, based on the plaintiff's failure to state
a claim, is not warranted.").
Summary judgment accordingly is DENIED as to Bradshaw's intentional tort claims
against the individual defendants for assault, battery, false imprisonment and intentional infliction
of emotional distress (although the latter two claims are dismissed for the reasons discussed in
sections VI, VII below).19/ See, e.g., Tulino v. City of N.Y., 15 Civ. 7106, 2016 WL 2967847 at *3

18/

(...continued)
employee is entitled to representation by the Corporation Counsel under § 50-k(2) is for the
Corporation Counsel to decide in the first instance, there is no such role accorded to the
Corporation Counsel with respect to the question of indemnification under § 50-k(3).");
Higgins v. Town of Southampton, 613 F. Supp. 2d 327, 330 (E.D.N.Y. 2009) ("[I]t is clear
that the Town has a duty to defend Schaffer. . . . Whether the Town is obligated to
indemnify Schaffer is an issue of fact that will be determined at a later stage in these
proceedings.").

19/

See, e.g., Lombardoni v. Boccaccio, 160 A.D.2d 1089, 1091, 553 N.Y.S.2d 249, 250 (3d
Dep't 1990) ("[F]alse imprisonment . . . and intentional infliction of emotional distress[] are
intentional torts."); Mazzaferro v. Albany Motel Enters., Inc., 127 A.D.2d 374, 376, 515
N.Y.S.2d 631, 632-33 (3d Dep't 1987) ("[A]ny right to recover for resultant injuries was on
(continued...)

37
(S.D.N.Y. May 19, 2016) (Plaintiff "argues that a notice of claim was not required because . . . her
claims are for intentional torts based on acts committed outside the scope of employment. The
Court agrees. Plaintiff's claims for assault, battery, and defamation are premised on alleged conduct
that would almost certainly be 'in violation of . . . rule[s] or regulation[s]' and beyond the scope of
the individual Defendants' employment." (record citation omitted)); Vesterhalt v. City of N.Y., 667
F. Supp. 2d 292, 301 (S.D.N.Y. 2009) ("Because trespass and false arrest are intentional torts under
New York law, plaintiff's claims, by definition, constitute 'intentional wrongdoing' that does not
qualify for indemnification.

Therefore, plaintiff's trespass and false arrest claims are not

procedurally barred by her failure to file a Notice of Claim." (citations omitted)); Kavazanjian v.
Rice, No. 03-CV-1923, 2008 WL 5340988 at *6 (E.D.N.Y. Dec. 22, 2008) ("[T]he alleged
conduct—assault and battery and intentional infliction of emotional distress—would, by definition,
have constituted 'intentional wrongdoing.' The Court, therefore, holds that [plaintiff's] state-law
intentional tort claims are not procedurally barred by his failure to file a Notice of Claim." (citations
omitted)).
D.

Bradshaw's Negligence Based State Law Tort Claims Are Dismissed
In contrast to intentional torts, the individual defendants are entitled to

indemnification for ordinary negligence that occurred within the scope of their employment. See,
e.g., Allen v. Antal, 665 F. App'x 9, 14 (2d Cir. 2016) ("[T]he district court correctly dismissed
[plaintiff's] negligence claim against County Clerk Kendall on the ground that [plaintiff] failed to

19/

(...continued)
the basis of the intentional tort of assault and battery, rather than in negligence. New York
has adopted the prevailing modern view that, once intentional offensive contact has been
established, the actor is liable for assault and not negligence, even when the physical injuries
may have been inflicted inadvertently.").

38
comply with New York's notice of claim requirements.").20/ Moreover, as a substantive matter, the
Court agrees with defendants that Bradshaw's allegations focus on defendants' alleged "deliberate
indifference" and other intentional, not negligent, conduct.21/

Even if some of Bradshaw's

allegations fell outside the scope of "intentional wrongdoing or recklessness on the part of the
[defendant] employee[s]," Gen. Mun. Law § 50-k(3), Bradshaw has not shown, or even argued, why
he would be exempt from the Notice requirement in such a case.
***
Summary judgment therefore is GRANTED as to all of Bradshaw's state law claims
against the City and his negligence claims against the individual defendants.

20/

Only the negligence claim is at issue here because Bradshaw pled his negligent hiring,
training and supervision claim against the City, not the individual defendants. (Dkt. No. 2:
Compl. ¶¶ 81-82.)

21/

(See Compl. ¶ 17 ("Officer Hernandez . . . had been deliberately indifferent to Plaintiff's
health and safety."); ¶ 22 ("Captain Bailey was deliberately indifferent to Plaintiff['s]
medical need by her failure to obtain medical assistance."); ¶ 24 ("Captain Brown . . . was
deliberately indifferent" by threatening Bradshaw and denying his request for medical
assistance.); ¶ 31 ("Officer Alphonse . . . assaulted" Bradshaw.); Dkt. No. 50: Def. Br. at 21
("[I]t is unclear upon what factual allegations plaintiff bases his purported negligence claim.
Even if he were clear, the defendants' actions as he alleges them were intentional."));
Newton v. City of N.Y., 779 F.3d 140, 157 n.17 (2d Cir. 2015) ("'[T]he Courts of Appeals
have routinely equated deliberate indifference with recklessness.'"), cert. denied, 136 S. Ct.
795 (2016); Bogart v. City of N.Y., 13 Civ. 1017, 2016 WL 4939075 at *13 (S.D.N.Y. Sept.
6, 2016) ("'Various federal courts within this circuit have held . . . that under New York State
law, when a plaintiff brings excessive force and assault claims which are premised upon a
defendant's allegedly intentional conduct, a negligence claim with respect to the same
conduct will not lie.'" (citing cases)); Lozada v. Weilminster, 92 F. Supp. 3d 76, 107
(E.D.N.Y. 2015) ("While Plaintiff is generally permitted to plead different causes of action
in the alternative, other District Courts in this Circuit have held that when a plaintiff's factual
allegations are 'only consistent with a theory of intentional, or perhaps reckless, conduct,'
negligence claims must be dismissed.").

39
VI.

DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON BRADSHAW'S
WRONGFUL CONFINEMENT CLAIM
"'Some New York courts have described the tort of wrongful confinement as a

'species of false imprisonment.' To recover for wrongful confinement, a prisoner must demonstrate
that 'he had been subjected to punitive segregation for no legitimate reason and without the
rudimentary protections of due process.'" McGowan v. United States, 825 F.3d 118, 126 (2d Cir.
2016) (citation omitted); see also, e.g., Willey v. Kirkpatrick, 801 F.3d 51, 70-71 (2d Cir. 2015).22/
"Absent a showing of an expressed intent to punish, the determination whether a condition is
imposed for a legitimate purpose or for the purpose of punishment 'generally will turn on whether
an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and
whether it appears excessive in relation to the alternative purpose assigned [to it].'" Benjamin v.
Fraser, 264 F.3d 175, 188 (2d Cir. 2001); accord, e.g., Patterson v. Ponte, 16 Civ. 3156, 2017 WL
1194489 at *3 (S.D.N.Y. Mar. 30, 2017), R. & R. adopted, 2017 WL 1405753 (S.D.N.Y. Apr. 17,
2017), appeal dismissed (Aug. 14, 2017).
Bradshaw claims that Captain Brown forced him to remain in the intake unit for
seven days "without due process." (Dkt. No. 2: Compl. ¶ 78; see pages 3-4 above.) Bradshaw's
claim is different from the vast majority of wrongful confinement claims brought in this Circuit
where an inmate is transferred to restricted housing because of an alleged disciplinary infraction.

22/

The Court notes that while defendants argue that Bradshaw must show that the conditions
of his segregation imposed an "'atypical and significant hardship'" (Dkt. No. 50: Def. Br. at
18), that standard is inapplicable to pretrial detainees. See, e.g., Wilson v. Calderon, 14 Civ.
6209, 2017 WL 2881153 at *12 n.11 (S.D.N.Y. July 6, 2017) ("[A] pretrial detainee 'need
not show that an imposed restraint imposes atypical and significant hardships to state
deprivation of a liberty interest protected by procedural due process.'"), R. & R. adopted,
2017 WL 3209148 (S.D.N.Y. July 27, 2017); Parson v. York, No. 16-CV-167, 2017 WL
1076536 at *4 (N.D.N.Y. Feb. 28, 2017) (same), R. & R. adopted, 2017 WL 1066677
(N.D.N.Y. Mar. 21, 2017).

40
In those cases, "[p]rocedural due process requires that a pretrial detainee be given 'written notice,
adequate time to prepare a defense, a written statement of the reasons for action taken, and a limited
ability to present witnesses and evidence' before being subjected to punitive as opposed to
administrative measures." Almighty Supreme Born Allah v. Milling, No. 16-1443-PR, --- F.3d ----,
2017 WL 5615989 at *5 n.3 (2d Cir. Nov. 22, 2017). Moreover, "New York adopted regulations
. . . which provide more protection to inmates than the constitution requires." Bethune v. State, 50
Misc. 3d 1216, 1216, 36 N.Y.S.3d 46, 46 (N.Y. Ct. Cl. 2015) (table); see also, e.g., Laureano v.
Kuhlmann, 75 N.Y.2d 141, 146, 551 N.Y.S.2d 184, 187 (1990).
Here, however, Bradshaw requested to be moved from his housing unit out of fear
for his safety, and he does not claim that he was denied any particular state or federal procedural
protections either before or during his stay in the intake unit. See, e.g., Davidson v. Flynn, 32 F.3d
27, 31 (2d Cir. 1994) ("[P]laintiff's conclusory allegation [of due process violations] without any
indication of what aspect of required procedure was not provided, renders his due process claim
insufficient."); Banks v. Pinker, 10 Civ. 4139, 2012 WL 1066799 at *3 (S.D.N.Y. Mar. 22, 2012).
Thus, while Bradshaw may be able to show that his confinement was "punitive," he has not shown
that his placement there was for "'no legitimate reason and without the rudimentary protections of
due process.'" McGowan v. United States, 825 F.3d at 126; see also, e.g., Callender v. State, 38
Misc. 3d 651, 659, 956 N.Y.S.2d 792, 799 (N.Y. Ct. Cl. 2012) ("It is, in any event, claimant's burden
to demonstrate how defendant ran afoul of governing regulations.").
Defendants' summary judgment motion is GRANTED as to Bradshaw's wrongful
confinement claim.

41
VII.

DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON BRADSHAW'S
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIMS
In New York, there are "four elements of a cause of action for intentional infliction

of emotional distress ["IIED"]: '(i) extreme and outrageous conduct; (ii) intent to cause, or disregard
of a substantial probability of causing, severe emotional distress; (iii) a causal connection between
the conduct and injury; and (iv) severe emotional distress.'" Chanko v. Am. Broad. Cos. Inc., 27
N.Y.3d 46, 56, 29 N.Y.S.3d 879, 886 (2016). "Liability has been found only where the conduct has
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 community." Id.
(quotations omitted). "IIED, although providing relief for plaintiffs upon occasion . . . , remains a
'highly disfavored [tort] under New York law.' It 'is to be invoked only as a last resort.'" Turley v.
ISG Lackawanna, Inc., 774 F.3d 140, 158 (2d Cir. 2014) (citation omitted); see also, e.g., Howell
v. N.Y. Post Co., 81 N.Y.2d 115, 122, 596 N.Y.S.2d 350, 353 (1993) ("[T]he 'requirements of the
rule are rigorous, and difficult to satisfy.' Indeed, of the intentional infliction of emotional distress
claims considered by this Court, every one has failed because the alleged conduct was not
sufficiently outrageous." (citations omitted)).
Defendants do not move on the merits of Bradshaw's IIED claims. (See Dkt. No.
50: Def. Br. at 18-19.) Rather, defendants argue that an IIED claim cannot survive where it falls
within the ambit of "'traditional tort liability.'" (Def. Br. at 19.) Defendants argue that because
Bradshaw "sets forth various alternate theories of liability, excessive force, failure to intervene,
assault and battery, false imprisonment, and negligent hiring and training," "[t]he intentional
infliction of emotional distress claim is unnecessary." (Id.) Bradshaw's assault and battery claims
against Officer Alphonse survive summary judgment, as does his claim against Officer Hernandez

42
for failure to intervene during the November 20, 2015 assault. "[S]tate courts and federal district
courts in this Circuit 'have consistently held that the tort of intentional infliction of emotional
distress may not be used as a substitute for an available traditional tort theory." Caravalho v. City
of N.Y., 13 Civ. 4174, 2016 WL 1274575 at *23 (S.D.N.Y. Mar. 31, 2016); see also, e.g., DiRuzza
v. Lanza, 685 F. App'x 34, 36 (2d Cir. 2017) (IIED "may be invoked 'only as a last resort,' that is,
only when other theories of tort recovery are unavailable."). The Court accordingly dismisses
Bradshaw's IIED claims against Officers Alphonse and Hernandez as duplicative of his remaining
claims. See, e.g., Salmon v. Blesser, 802 F.3d 249, 256 (2d Cir. 2015) ("[T]he New York Court of
Appeals has questioned whether an intentional infliction claim can ever be brought where the
challenged conduct 'falls well within the ambit of other traditional tort liability.' All four Appellate
Division courts have answered the question and held that it cannot." (citation omitted, citing cases));
Warr v. Liberatore, No. 13-CV-06508, 2017 WL 3872491 at *11 (W.D.N.Y. Sept. 5, 2017) (Plaintiff
"argues that his intentional infliction of emotional distress claim is proper because of the officers'
excessive use of force and the injuries resulting therefrom. [Plaintiff's] claims resulting from the
incident are wholly encompassed in the other intentional torts alleged by [Plaintiff]—i.e., false
arrest, excessive use of force, assault, and battery."); Jackson v. City of N.Y., 29 F. Supp. 3d 161,
183 (E.D.N.Y. 2014) ("Plaintiff's IIED claim must be dismissed because it overlaps with his claims
of assault, battery, and false arrest."); Universal Calvary Church v. City of N.Y., 96 Civ.4606, 2000
WL 1538019 at *12 (S.D.N.Y. Oct. 17, 2000) ("Under the circumstances here, [plaintiff's] claim for
intentional infliction of emotional distress is subsumed under his excessive force claim.").
Defendants' summary judgment motion as to Bradshaw's intentional infliction of
emotional distress claims is GRANTED.

43
CONCLUSION AND SCHEDULING23/
For the reasons set forth above, defendants' motion for partial summary judgment
(Dkt. No. 47) is GRANTED, except DENIED as to the state law claim of assault and battery against
Officer Alphonse. Bradshaw's claims against the City of New York, and his claims against the
individual defendants for denial of medical care, violation of the Equal Protection Clause,
negligence, wrongful confinement and intentional infliction of emotional distress are dismissed.
Bradshaw's following claims survive for trial:
(1)

failure to intervene under 42 U.S.C. § 1983 against Officer Hernandez;

(2)

excessive force under 42 U.S.C. § 1983 against Officer Alphonse; and

(3)

assault and battery under New York law against Officer Alphonse.

The Joint Pretrial Order is due by December 29, 2017. The Court will hold the final
pretrial conference on January 4, 2018 at 11A.M. in courtroom 20D, 500 Pearl Street. Defense
counsel is to make the necessary arrangements with the prison for Mr. Bradshaw to appear
telephonically by calling 212-805-0036 at the time of the conference. Counsel shall come to the
conference with available dates for trial in January, likely the week of January 15 or January 29,
2018.
SO ORDERED.
Dated:

New York, New York
December 7, 2017

Copies to:

23/

________________________________
Andrew J. Peck
United States Magistrate Judge

Counsel (ECF), Mr. Bradshaw (mail)

If Bradshaw requires copies of any of the cases reported only in Westlaw, he should request
copies from defense counsel. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009);
SDNY-EDNY Local Civil Rule 7.2.