Pizarro v. Ponte et al

Filing 103

OPINION AND ORDER re: 70 MOTION for Summary Judgment filed by Geradeau, The City of New York, Joseph Ponte, N.Y.C. H.M.H. For the foregoing reasons, Defendants' motion for summary judgement is GRANTED in part and DENIED in part. Summary judgment is granted as to all Defendants on all claims except the (1) § 1983 excessive force claim against Defendants Morris, Geradeau, Overton and Peters for the alleged May 2, 2017, attack, and (2) assault and battery claim against Defendants Geradeau, Overton and Peters, for which summary judgment is denied. For clarity, the only remaining claims are the (1) § 1983 excessive force claim against Defendants Morris, Geradeau, Overton and Peters for the alleged May 2, 2017, attack (but not the handcuffing), and (2) assault and battery claim against Defendants Geradeau, Overton and Peter. The Clerk of Court is respectfully directed to close the motion at Docket Number 70 and to ma il a copy of this Opinion and Order to pro se Plaintiff. Separate orders will be issued setting trial dates and requesting pro bono counsel for Plaintiff. (Signed by Judge Lorna G. Schofield on 2/11/2019) (mro) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------ X
:
:
JOSE PIZARRO,
:
Plaintiff,
:
:
-against:
:
JOSEPH PONTE, et al.,
Defendants. :
------------------------------------------------------------ X

2/11/2019

17 Civ. 4412 (LGS)
OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge:
Pro se Plaintiff Jose Pizarro brings this action under 42 U.S.C. § 1983 and New York
state law against Defendants the City of New York (“the City”), New York City Department of
Health and Mental Hygiene (“HMH”), New York City Department of Correction (“DOC”), New
York City Board of Correction (“BOC”), Commissioner Cynthia Brann,1 former Commissioner
Joseph Ponte, Captain Morris, Correction Officer (“C.O.”) Geradeau, C.O. Overton and C.O.
Peters.2 Defendants move for summary judgment on all claims under Federal Rule of Civil
Procedure 56. For the following reasons, Defendants’ motion is granted in part and denied in
part.3

1

Brann is the current Commissioner of the Department of Correction. Pursuant to Federal Rule
of Civil Procedure 25(d), Brann is substituted for former Commissioner Joseph Ponte in the
claims against Ponte in his official capacity. Corr. Officers’ Benevolent Ass’n v. City of New
York, No. 17 Civ. 2899, 2018 WL 2435178, n.1 (S.D.N.Y. May 30, 2018).
2
Defendants’ names are taken from the Complaint, Amended Complaint and Second Amended
Complaint collectively. Captain Goeed was initially named as a Defendant but is dismissed
because, at the October 10, 2018, initial pretrial conference, Plaintiff narrowed his claims to
those arising out of his May 2, 2017, rehousing, and Goeed was not involved in that incident.
3
Plaintiff did not respond to Defendants’ Rule 56.1 statement, which ordinarily would be
construed as a concession under Local Rule 56.1. On July 24, 2018, Plaintiff filed a document
styled as a motion for summary judgment. Given Plaintiff’s pro se status and the instruction that
“[t]he submissions of a pro se litigant must be construed liberally,” Williams v. Annucci, 895
F.3d 180, 187 (2d Cir. 2018), the failure to respond is excused, see, e.g., Roland v. Ponte, No. 17
Civ. 2758, 2018 WL 4609109, at *1 n. 1 (S.D.N.Y. Sept. 25, 2018), and Plaintiff’s July 24, 2018,
filing is construed as Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment.

BACKGROUND
The facts below are drawn from the record and are construed in favor of Plaintiff as the
nonmoving party. See Nick’s Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 113 (2d
Cir. 2017). Plaintiff’s claims arise from events on May 2, 2017, when he was transferred from
the Mental Observation unit to General Population at the Anna M. Kross Correctional Facility
(“AMKC”) on Rikers Island.
From February 2016 until August 2018, Plaintiff was incarcerated by DOC. In April
2017, Plaintiff was housed in the Mental Observation unit.
On May 1, 2017, Plaintiff had a medication follow-up appointment with Aleen BoydMckoy, a nurse practitioner. At this appointment, Plaintiff told Boyd-Mckoy that he was feeling
depressed and paranoid. When Boyd-Mckoy asked Plaintiff how he felt living in the Mental
Observation unit, he told Boyd-Mckoy that he felt safer there because of the unit’s private cells
and that he did not want to be moved into General Population. Boyd-Mckoy agreed with
Plaintiff and told him not to worry because he would not be moved into General Population any
time soon.
On May 2, 2017, Dr. Kristila Brace completed a Housing Disposition report for Plaintiff.
The report states that Plaintiff was discharged from the Mental Observation unit because his
symptoms had stabilized and that observation had “revealed [the] absence of symptoms
warranting [Mental Observation] housing.”
On May 2, 2017, C.O. Geradeau came to Plaintiff’s cell and ordered Plaintiff to submit to
a strip search. Geradeau told Plaintiff that if he did not comply with the order, he would be
discharged from the Mental Observation unit and rehoused in General Population. Plaintiff told
Geradeau that the law required that a doctor approve his discharge and that his doctor, who he

2

had seen the day before, did not say he would be discharged. Geradeau told Plaintiff that HMH
had signed him out of the Mental Observation unit. Before leaving Plaintiff’s cell, Geradeau told
Plaintiff that he would be strip searched and discharged from the mental health dorm “the hard
way.”4
Geradeau returned with C.O. Overton, who opened Plaintiff’s cell door and told him to
remove his clothing for a strip search so that he could be discharged from the Mental
Observation unit and sent to General Population. Plaintiff then removed his clothing, squatted
and put his hands on his head.5 Geradeau and Overton verbally abused him while they waited
for Captain Morris to come. When Plaintiff asked them where the legally-required cameras were
during this strip search, the C.O.s said that they were the law.
Morris arrived, told Plaintiff that he “shouldn’t fuck with her,” that he would “get [his],”
and ordered him to pack his things while naked. When Plaintiff instead started getting dressed,
Morris told him to stop and instructed the officers to go into Plaintiff’s cell. Overton threw
Plaintiff to the ground,6 after which Geradeau, Overton and C.O. Peters assaulted Plaintiff with
punches. When Plaintiff yelled for help, Overton put him in a chokehold7 and Peters held his
hands down. Plaintiff passed out and awoke to a slap from Peters. Morris -- who was outside or
almost in Plaintiff’s cell -- told Plaintiff, who was dizzy and in pain, to get dressed. The guards
handcuffed Plaintiff and moved him to General Population. During the transfer, Overton twisted

4

During his deposition, Plaintiff asserted that prior to Captain Morris’s arrival no one had told
Plaintiff he would be transferred, but Plaintiff later stated that Geradeau told Plaintiff he would
be moved to General Population if Plaintiff did not remove his clothes.
5
At the October 10, 2017, initial pretrial conference, Plaintiff said he refused the strip search. At
his deposition, however, he asserted that he had been strip searched.
6
During his deposition, Plaintiff stated that Overton threw Plaintiff on the bed.
7
During his deposition, Plaintiff maintained that “Officer Overton smothered [him] with a pillow
so [he] couldn’t breathe,” and stated several times that Overton suffocated him.
3

Plaintiff’s wrist. Plaintiff told Overton to stop twisting his wrist and asked Morris to tell Overton
to comply. Plaintiff’s medical record from the day of the incident states that his left wrist had
mild swelling, redness and a limited range of movement. The “impression” section of Plaintiff’s
May 3, 2017, x-ray record states “[n]o fracture.” As a result of the May 2, 2017, assault,
Plaintiff maintains that he suffers nerve damage in his left wrist and mental illnesses including
post-traumatic stress disorder, anxiety, depression and insomnia. Plaintiff also has injuries in his
right shoulder and left knee.8
Over the next few days, Plaintiff sent letters to the BOC, Commissioner Joseph Ponte, the
Warden of AMKC and the Deputy of Security of AMKC complaining about the May 2, 2017,
incident. Plaintiff also submitted a grievance form in which Plaintiff stated that he was strip
searched, verbally abused and beaten in his cell. Plaintiff never received a response to his
grievance and did not appeal the non-response.
LEGAL PRINCIPLES
A.

Summary Judgment

Summary judgment is appropriate if the record establishes 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). “A genuine issue of material fact exists if ‘the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Nick’s Garage, 875 F.3d at
113 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The evidence is
construed in the light most favorable to the nonmoving party and all reasonable inferences are
drawn in the nonmoving party’s favor. See id.

8

During his deposition, Plaintiff stated that his knee and shoulder injuries stemmed from
incidents in 2016.
4

B.

Pro se Pleadings and Briefs

Where, as here, a party appears pro se, a court must construe “the submissions of a pro se
litigant . . . liberally” and interpret them “to raise the strongest arguments that they suggest.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal
quotation marks omitted) (emphasis in original) (collecting cases); accord Smith v. Fischer, 803
F.3d 124, 127 (2d Cir. 2015). Pro se status does not, however, “relieve [a non-movant] of his
duty to meet the requirements necessary to defeat a motion for summary judgment.” Jorgensen
v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (internal quotation marks and citation
omitted); accord O’Callaghan v. Uber Corp. of Cal., No. 17 Civ. 2094, 2018 WL 3302179, at *5
(S.D.N.Y. July 5, 2018).
DISCUSSION
Plaintiff’s pleadings are construed to assert claims under § 1983 for denial of procedural
due process for moving him from the Mental Observation unit to General Population, and for
excessive force; and under state law for assault and battery.9
In order to succeed on a claim under § 1983, a plaintiff must establish that “(1) the
defendant was a state actor, i.e., acting under color of state law, when he committed the violation
and (2) the defendant deprived the plaintiff of rights, privileges or immunities secured by the
Constitution or laws of the United States.” Milan v. Wertheimer, 808 F.3d 961, 964 (2d Cir.

9

Plaintiff’s submissions are not construed to include a denial of medical care claim because no
Defendant is a medical professional, and Defendants acted in accordance with the
recommendations of a medical professional who cleared Plaintiff for transfer. Even if Plaintiff
had claimed that a medical professional denied medical care by approving his transfer, it is
unlikely that the claim would rise to the level of constitutional challenge. See, e.g., Figueroa v.
Cty. of Rockland, No. 16 Civ. 6519, 2018 WL 3315735, at *6 (S.D.N.Y. July 5, 2018)
(“Medical malpractice, misdiagnosis and the decision not to treat based on an erroneous view
that the condition is benign or trivial does not rise to the level of deliberate indifference.”)
(internal quotation marks omitted).
5

2015) (internal quotation marks omitted); accord Gumora v. City of New York, No. 17 Civ. 2300,
2018 WL 736018, at *3 (S.D.N.Y. Feb. 5, 2018). A plaintiff must also establish the personal
involvement of each defendant in the alleged constitutional violation. See Spavone v. N.Y. State
Dep’t of Corr. Servs., 719 F.3d 127, 135 (2d Cir. 2013); accord Hansen v. Town of Smithtown,
342 F. Supp. 3d 275, 294 (E.D.N.Y. 2018).
For the following reasons, summary judgment is granted as to all Defendants on all
claims, except (1) the excessive force claim against Morris, Geradeau, Overton and Peters, and
(2) the assault and battery claim against Geradeau, Overton and Peters.
A.

DOC and BOC

Defendants DOC and BOC are dismissed from this action because they are not suable
entities. The New York City Charter states that “[a]ll actions and proceedings for the recovery
of penalties for the violation of any law shall be brought in the name of the [C]ity of New York
and not in that of any agency, except where otherwise provided by law.” N.Y.C. Charter Ch. 17,
§ 396; see also Moore v. City of New York, No. 15 Civ. 6600, 2017 WL 35450, at *8 (S.D.N.Y.
Jan. 3, 2017) (noting that plaintiff had been “direct[ed] [] to name the City of New York as the
proper Defendant for his allegations against the DOC”); Colon-Rodriguez v. N.Y. City Dep’t of
Corr., No. 07 Civ. 8126, 2009 WL 995181, at *5 (S.D.N.Y. Apr. 13, 2009) (dismissing claims
against BOC as a non-suable entity). Claims against DOC and BOC are properly brought against
the City, which is already a Defendant.
B.

Exhaustion of Administrative Remedies
1. Law

Under the Prison Litigation Reform Act (“PLRA”), “[n]o action shall be brought with
respect to prison conditions under [42 U.S.C. § 1983] . . . by a prisoner confined in any jail,

6

prison, or other correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). “Failure to exhaust administrative remedies is an affirmative
defense under the PLRA . . . .” Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016).
“[D]efendants bear the initial burden of establishing the affirmative defense of non-exhaustion
‘by pointing to “legally sufficient sources” such as statutes, regulations, or grievance procedures’
which demonstrate that ‘a grievance process exists and applies to the underlying dispute.’” Id. at
126 n.6 (quoting Hubbs v. Suffolk Cty. Sheriff’s Dep’t, 788 F.3d 54, 59 (2d Cir. 2015)). Once a
defendant has sufficiently established that a grievance process exists, the inmate plaintiff must
show that he has properly exhausted his claims, “which means using all steps that the prison
grievance system holds out, and doing so properly (so that the prison grievance system addresses
the issues on the merits).” Id. at 122 (alterations, emphasis and internal quotation marks omitted)
(quoting Woodford v. Ngo, 548 U.S. 81, 90 (2006)).
“[T]he PLRA does not require the exhaustion of all administrative remedies, but only
those that are ‘available’ to the inmate.” Hubbs, 788 F.3d at 59; accord Ross v. Blake, 136 S. Ct.
1850, 1858 (2016). An inmate’s failure to exhaust administrative remedies is excused when the
prison’s grievance mechanisms are literally or constructively “unavailable” to him. Priatno, 829
F.3d at 123; see, e.g., Ross, 136 S. Ct. at 1858. “Whether an administrative remedy was
available to a prisoner in a particular prison or prison system is ultimately a question of law, even
when it contains factual elements.” Hubbs, 788 F.3d at 59; accord Grafton v. Cty. of Nassau,
No. 15 Civ. 4564, 2016 WL 8711072, at *3 (E.D.N.Y. July 15, 2016).
“[P]risoners must complete the administrative review process in accordance with the
applicable procedural rules -- rules that are defined not by the PLRA, but by the prison grievance
process itself.” Johnson v. Killian, 680 F.3d 234, 238 (2d Cir. 2012) (quoting Jones v. Bock, 549

7

U.S. 199, 218 (2007) (internal citation and quotation marks omitted)); accord Sanders v. City of
New York, No. 16 Civ. 7246, 2018 WL 3117508, at *4 (S.D.N.Y. June 25, 2018). As a Rikers
Island detainee during the relevant period, “Plaintiff’s grievance is governed by the Inmate
Grievance and Request Program (‘IGRP’) . . . .” See Sanders, 2018 WL 3117508, at *4; see also
Girodes v. City of New York, No. 17 Civ. 6789, 2018 WL 3597519, at *3 (S.D.N.Y. July 26,
2018) (“The [IGRP] sets out the grievance procedures for inmates at Rikers Island.”). The IGRP
steps for prisoners are: first, submit a complaint for informal resolution; second, if the inmate
“disagree[s] with the proposed resolution, [the inmate has] five business days to appeal and
request a formal hearing”; third, if the inmate “disagree[s] with the [Inmate Grievance
Resolution Committee]’s disposition, [the inmate has] five business days to appeal to the
commanding officer”; fourth, if the inmate disagrees with the commanding officer’s disposition,
the inmate has “five business days to appeal to the Central Office Review Committee”, who
“will render a disposition within 15 business days of receiving the appeal.” IGRP § IV(D)-(J),
Attachment B.10 “The inmate must take each of the four steps to exhaust the administrative
grievance process.” Sanders, 2018 WL 3117508, at *4 (internal quotation marks omitted); see
IGRP § II.E (“As a matter of law, an inmate is often required to ‘exhaust administrative
remedies’ such as those available through the IGRP before seeking relief from the judicial
system or any other external agency. Failure to file a grievance or request with the IGRP may
prevent an inmate from seeking external relief.”).

10

The Court takes judicial notice of the IGRP. See, e.g., Sanders, 2018 WL 3117508, at *4 n.1
(“It is a common practice in this District to take judicial notice of the version of the IGRP in
effect at the time of the events giving rise to [a prisoner’s] claim.”) (internal quotation marks
omitted) (alteration in original).
8

2. Due Process Rehousing Claim
Plaintiff failed to exhaust his administrative remedies with regard to the due process
rehousing claim, which is subject to the IGRP. See, e.g., Houston v. Horn, No. 09 Civ. 801,
2010 WL 1948612, at *6–8 (S.D.N.Y. May 13, 2010) (noting that housing transfers are “subject
to resolution through the IGRP” and granting the defendants summary judgment on the issues for
which the defendants raised non-exhaustion). In his deposition, Plaintiff stated that he did not
appeal his grievance regarding his May 2, 2017, housing transfer beyond the first step “because
it was never answered.” Failing to pursue a grievance for which no response is received is not
excused. See Mena v. City of New York, No. 13 Civ. 2430, 2016 WL 3948100, at *3 (S.D.N.Y.
July 19, 2016) (collecting cases) (“[T]he law is well-settled that an inmate’s failure to take an
available administrative appeal, even when the initial grievance receives no response, constitutes
a failure to exhaust available administrative remedies.”) (internal quotation marks omitted).
Summary judgment is granted on Plaintiff’s claim arising from his transfer from the Mental
Observation unit to General Population.
3. Excessive Force Claim
The IGRP exempts certain categories of complaints from its own administrative process.
These include complaints for the use of force or assault. IGRP § IV.B.2.b (“Inmate allegations
of physical or sexual assault or harassment by either staff or inmates are not subject to the IGRP
process.”). As a result, a prisoner’s claims for excessive force and assault are not subject to the
affirmative defense of failure to exhaust administrative remedies because he failed to use the
IGRP process. See Taylor v. City of New York, No. 16 Civ. 7857, 2018 WL 1737626, at *4
(S.D.N.Y. Mar. 27, 2018) (collecting cases).

9

Because the IGRP was not available to Plaintiff for the excessive force claim and assault
and battery claims, he has not failed to exhaust available administrative remedies. Defendants
have not “point[ed] to legally sufficient sources such as statutes, regulations, or grievance
procedures which demonstrate that a grievance process exists and applies to the underlying
dispute.” Priatno, 829 F.3d at 126 n.6 (internal quotation marks omitted).
In support of their contention that Plaintiff failed to satisfy the PLRA’s exhaustion
requirement for his excessive force claim, Defendants cite three cases: Richardson v. New York
State Department of Corrections, No. 13 Civ. 6189, 2014 WL 3928785, at *5–7 (S.D.N.Y. Aug.
11, 2014), affirmed, 633 F. App’x 816 (2d Cir. 2016); Perez v. City of New York, No. 14 Civ.
7502, 2015 WL 3652511, at *2–4 (S.D.N.Y. June 11, 2015); and Diezcabeza v. Lynch, 75 F.
Supp. 2d 250, 255 (S.D.N.Y. 1999). These cases are distinguishable.
Richardson and Diezcabeza involved exhaustion in the New York State corrections
system, but here Plaintiff was in the custody of -- and subject to the rules of -- the City DOC, not
the State. See, e.g., Kearsey v. Williams, No. 99 Civ. 8646, 2004 WL 2093548, at *3–4
(S.D.N.Y. Sept. 20, 2004) (vacating a dismissal based on the defendant’s assertion that the State
IGP applied when plaintiff was subject to the City’s IGRP); see also Mojias v. Johnson, 351 F.3d
606, 610 (2d Cir. 2003) (“Courts should be careful to look at the applicable set of grievance
procedures, whether city, state or federal.”). Perez involved a condition of confinement claim
that, unlike allegations of staff-on-inmate assault, is not expressly exempted from the IGRP.
Perez, 2015 WL 3652511, at *1; see IGRP App. A at 1 (listing “Environmental,” “Housing,”
“Law Library,” “Medical (complaints involving Department personnel),” “Personal Hygiene,”
“Phone,” “Property” and “Recreation” as “categories/issues . . . subject to the [IGRP] process”).

10

For these reasons, Defendants’ failure to exhaust administrative remedies affirmative
defense is dismissed as to Plaintiff’s excessive force claim.
C.

Excessive Force Claim

Plaintiff’s excessive force claim has two components -- the first relates to his
handcuffing, and the second relates to the alleged attack. Summary judgment is granted to
Defendants on the handcuffing claim, but denied as to the alleged attack.
1. Handcuffing
“[E]xcessively tight handcuffing that causes injury can constitute excessive force . . . .”
Shamir v. City of New York, 804 F.3d 553, 557 (2d Cir. 2015); accord Ali v. Ramos, No. 16 Civ.
01994, 2018 WL 1353210, at *5 (S.D.N.Y. Mar. 14, 2018). “Courts apply a separate standard to
claims for excessive force in the use of handcuffs. The modified standard reflects the need for a
careful balance.” Sullivan v. City of New York, No. 17 Civ. 3779, 2018 WL 3368706, at *10
(S.D.N.Y. July 10, 2018) (internal quotation marks and citation omitted). “‘[I]n evaluating the
reasonableness of handcuffing, courts typically consider evidence that: (1) the handcuffs were
unreasonably tight; (2) the defendants ignored the [plaintiff’s] pleas that the handcuffs were too
tight; and (3) the degree of injury to the [plaintiff’s] wrists.’” Rivera v. Samilo, No. 16 Civ.
1105, 2018 WL 1701935, at *10 (E.D.N.Y. Mar. 30, 2018) (alterations in original) (quoting
Lloyd v. City of New York, 246 F. Supp. 3d 704, 724 (S.D.N.Y. 2017)). “Courts in this Circuit
have generally found that handcuffing does not suffice for an excessive force claim unless it
causes some injury beyond temporary discomfort or bruising. The injuries need not be severe or
permanent, but must be more than merely de minimis.” Othman v. City of New York, No. 13
Civ. 4771, 2018 WL 1701930, at *7 (E.D.N.Y. Mar. 31, 2018) (internal quotation marks and
citation omitted).

11

Plaintiff’s excessive force claim fails because his injuries of mild swelling, redness and
limited movement are insufficient to state a constitutional violation as a matter of law. See
Sullivan, 2018 WL 3368706, at *10 (collecting cases in which bruising, swelling and contusions
are insufficient to support a handcuffing excessive force claim). Plaintiff’s medical records from
the day of the incident note that his left wrist had mild swelling, redness and a limited range of
movement. The x-ray did not reveal a fracture. Although Plaintiff alleges that he suffers nerve
damage as a result of the incident, “unsubstantiated claims of nerve damage, in the absence of
corroborating medical evidence, are insufficient to sustain a claim of excessive force from
handcuffing.” Cancel v. Kelly, No. 13 Civ. 6007, 2016 WL 590230, at *5 (S.D.N.Y. Feb. 11,
2016) (internal quotation marks omitted); accord Scalpi v. Amorim, No. 14 Civ. 2126, 2018 WL
1606002, at *22 (S.D.N.Y. Mar. 29, 2018). Summary judgment is granted to Defendants on the
excessive force claim as it relates to handcuffing.
2. Physical Attack
Resolving all factual disputes in favor of Plaintiff as the non-moving party, a reasonable
fact finder could conclude that, based on the evidence in the record, Defendants Geradeau,
Overton and Peters attacked Plaintiff with excessive force.
At the summary judgment stage, a court “may not make credibility determinations or
weigh the evidence.” Proctor v. LeClaire, 846 F.3d 597, 607–608 (2d Cir. 2017) (internal
quotation marks omitted). “On a motion for summary judgment, the court is to
identify factual issues, not to resolve them.” In re Dana Corp., 574 F.3d 129, 156 (2d Cir.
2009); see also Serrano v. Lopez, No. 14 Civ. 560, 2015 WL 5305948, at *5 (S.D.N.Y. Sept. 10,
2015). “[D]istrict courts should not ‘engage in searching, skeptical analyses of parties’
testimony in opposition to summary judgment.” Rivera v. Rochester Genesee Reg’l Transp.

12

Auth., 743 F.3d 11, 20 (2d Cir. 2014) (quoting Rojas v. Roman Catholic Diocese of Rochester,
660 F.3d 98, 106 (2d Cir. 2011)). “If there is a plausible explanation for discrepancies in a
party’s testimony, the court considering a summary judgment motion should not disregard the
later testimony because of an earlier account that was ambiguous, confusing, or simply
incomplete.” Jeffreys v. City of New York, 426 F.3d 549, 555 n.2 (2d Cir. 2005) (alteration
omitted); accord Spizz v. United States, 291 F.Supp.3d 447, 459 n.9 (S.D.N.Y. 2017).
Here, even though some of the details of Plaintiff’s story have changed, the heart of the
claim remains the same -- that he was assaulted on May 2, 2017, when he was removed from his
cell and transferred from the Mental Observation unit to General Population. Whether or not the
assault in fact occurred is an issue of material fact that requires determining Plaintiff’s credibility
and weighing the evidence -- a role reserved for a jury. See, e.g., Proctor, 846 F.3d at 607–608
(“Credibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge.”) (internal quotation marks
omitted).
Defendants assert that, based on the record, no reasonable factfinder could believe
Plaintiff’s allegation that he was pummeled by officers. This argument is unpersuasive. In
excessive force cases, a district court may grant summary judgment against a plaintiff “where
undisputed medical records directly and irrefutably contradict a plaintiff’s description of his
injuries.” See Henry v. Pierce, No. 11 Civ. 845, 2017 WL 3610507, at *2 (S.D.N.Y. Aug. 21,
2017) (emphasis in original) (internal quotation marks omitted). But the medical records in this
case do not directly and irrefutably contradict Plaintiff’s description of what happened on May 2,
2017. Of interest, the medical record states that Plaintiff was generally “well-appearing, no
acute distress,” and that his head was “normocephalic, atraumatic” -- i.e. normal. Although

13

Plaintiff’s physical exam does not directly affirm Plaintiff’s story, unlike the cases cited by
Defendants, it also does not “directly and irrefutably contradict” Plaintiff’s version of the May 2,
2017, attack. Compare, e.g., Jeffreys, 426 F.3d at 554–55 (unreasonable to believe the plaintiff’s
allegation that he had been beaten with a flashlight and thrown out a window by a police officer
when multiple doctors expressly found no evidence of head trauma and the plaintiff thrice
admitted that he had jumped out of a window while fleeing police until, nine months after the
incident, he changed his story to allege that he had been thrown out of the window); Henry v.
Brown, No. 14 Civ. 2828, 2016 WL 3079798, at *3 (E.D.N.Y. May 27, 2016) (unreasonable to
believe the plaintiff’s allegation that the defendant pushed the plaintiff, causing a leg injury so
severe the plaintiff almost lost his leg and a head injury that rendered the plaintiff unconscious in
pool of blood for over an hour, where medical records stated that the plaintiff’s leg had minor
bleeding caused by plaintiff picking an old scab, that plaintiff’s head was normal and that
plaintiff was ambulatory the day of the incident) with Burks v. Perrotta, No. 13 Civ. 5879, 2015
WL 2340641, at *6 (S.D.N.Y. May 15, 2015) (denying summary judgment where there was a
plausible explanation for the inconsistencies in the plaintiff’s story).
Summary judgment is denied on Plaintiff’s claims for excessive force resulting from the
alleged assault on May 2, 2017.
D.

The City and HMH11

A plaintiff may bring suit against a local government or municipality under § 1983 if the
injury complained of resulted from the “execution of a government’s policy or custom . . .

11

HMH is a suable entity. N.Y.C. Charter Ch. 22, § 564 (“The department may sue and be sued
in and by the proper name of ‘Department of Health and Mental Hygiene of the City of New
York’ . . . .”); accord Rivera v. Bloomberg, No. 11 Civ. 4325, 2012 WL 3655830, at *11
(S.D.N.Y. Aug. 27, 2012).
14

[which] may fairly be said to represent official policy.” Monell v. Department of Social Services,
436 U.S. 658, 694 (1978). “Absent such a custom, policy, or usage, a municipality cannot be
held liable on a respondeat superior basis for the tort of its employee.” Jones v. Town of East
Haven, 691 F.3d 72, 80 (2d Cir. 2012); accord Corso v. City of New York, No. 17 Civ. 6096,
2018 WL 4538899, at *12 (S.D.N.Y. Sept. 20, 2018).
The record contains no evidence that the City or HMH had a “policy or custom” to
mistreat prisoners upon their transfer from a Mental Observation unit to General Population.
See, e.g., Youngblood v. City of New York, No. 15 Civ. 3541, 2016 WL 3919650, at *5 (S.D.N.Y.
July 27, 2016) (“Without more, [p]laintiff’s bare allegations of the existence of a custom and
policy and his conclusory assertion that the policy was linked to his constitutional injuries are
insufficient to state a Monell claim.”). Defendants the City and HMH are granted summary
judgment on the claims against them.
E.

Official Capacity Claims

“It is settled that suits against officers in their official capacity . . . are directed at the
office itself.” Annucci, 895 F.3d at 187 (alteration in original) (internal quotation marks
omitted); see Hafer v. Melo, 502 U.S. 21, 25 (1991). “In an official capacity suit, ‘the real party
in interest . . . is the governmental entity and not the named official.’” Tanvir v. Tanzin, 894
F.3d 449, 459 (2d Cir. 2018) (alteration in original) (quoting Hafer, 502 U.S. at 25). Because
Plaintiff’s claims against the City are identical to all his claims against the individual Defendants
in their official capacities, the official capacity claims are duplicative and dismissed. See, e.g.,
Ball v. N.Y. City Council, No. 17 Civ. 4828, 2018 WL 4625625, at *2 (S.D.N.Y. Sept. 26, 2018).

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F.

Commissioner Ponte

“It is well settled in this Circuit that personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of damages under § 1983.” Spavone,
719 F.3d at 135 (internal quotation marks omitted). Traditionally, personal involvement can be
established in five ways:
(1) the defendant participated directly in the alleged constitutional violation, (2)
the defendant, after being informed of the violation through a report or appeal,
failed to remedy the wrong, (3) the defendant created a policy or custom under
which unconstitutional practices occurred, or allowed the continuance of such a
policy or custom, (4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts, or (5) the defendant exhibited
deliberate indifference to the rights of inmates by failing to act on information
indicating that unconstitutional acts were occurring.
Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (emphasis omitted) (quoting
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)).12
The evidence is insufficient to find Defendant Commissioner Ponte personally liable as a
matter of law. A May 4, 2017, letter from Plaintiff to Ponte is the only evidence in the record
that relates to him. Ponte’s alleged receipt and failure to respond to Plaintiff’s letter is
insufficient to establish personal liability. See Morgan v. Dzurenda, No. 14 Civ. 00966, 2018

12

The Second Circuit has yet to determine how Ashcroft v. Iqbal, 556 U.S. 662 (2009), affects
Colon. See Grullon, 720 F.3d at 139 (recognizing possible conflict among the cases); Dunham v.
City of New York, 295 F. Supp. 3d 319, 330 n.9 (S.D.N.Y. 2018) (“The continuing validity
of Colon remains unresolved and the issue continues to be a matter of disagreement among
District Judges within the Circuit.”). This issue is not presented and need not be addressed in
this case because Plaintiff has failed to establish Defendant Ponte’s personal involvement under
any of the Colon categories as a matter of law. See Ross v. Correct Care Sols. LLC, No. 11 Civ.
8542, 2013 WL 5018838, at *5 n.10 (S.D.N.Y. Sept. 13, 2013) (“The Supreme Court’s decision
in Iqbal, which found that a supervisor can be held liable only ‘through the official’s own
individual actions,’ arguably casts doubt on the continued viability of some of the categories set
forth in Hastings on Hudson and Colon. For the purposes of this case, however, it is not
necessary to explore this issue because the complaint fails to plead that [the individual
defendants] were personally involved under any of the Hastings on Hudson categories.”)
(internal citations omitted).
16

WL 4096630, at *9 (D. Conn. Aug. 28, 2018) (an unanswered inmate request form addressed to
the Warden was insufficient to establish personal liability); Inesti v. Hogan, No. 11 Civ. 2596,
2013 WL 5677046, at *8 (S.D.N.Y. Sept. 30, 2013) (no personal liability because “letter
complaints alone do not establish personal involvement”). Summary judgment is granted to
Ponte on all claims.
G.

Captain Morris

An officer “is personally involved in the use of excessive force if the officer either: (1)
directly participates in an assault; or (2) is present during the assault, and fails to intercede on
behalf of the victim even though he had a reasonable opportunity to do so.” Othman v. City of
New York, 2018 WL 1701930, at *8 (internal quotation marks omitted); see also Figueroa v.
Mazza, 825 F.3d 89, 106 (2d Cir. 2016) (“A police officer is under a duty to intercede and
prevent fellow officers from subjecting a citizen to excessive force, and may be held liable for
his failure to do so if he observes the use of force and has sufficient time to act to prevent it.”);
Holland v. City of New York, 197 F. Supp. 3d 529, 549 (S.D.N.Y. 2016) (“Correction officers
can be held liable under Section 1983 for not intervening to protect the constitutional rights of
inmates from infringement by other officers.”).
A reasonable fact finder could conclude that Defendant Captain Morris was personally
involved in committing the alleged constitutional violation. Morris was present during the
incident and did not intervene, even though she arguably could have, given her role as the
officers’ supervisor and her physical proximity to the scene. Morris is denied summary
judgment for Plaintiff’s excessive force claim.

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H.

State Law Claims -- Assault and Battery

“[W]ith the exception of the state actor requirement, the elements of a Section 1983
excessive force claim and state law assault and battery claims are substantially identical.” Lloyd,
246 F. Supp. 3d at 729 (internal quotation marks omitted). For the reasons stated above,
summary judgment is denied for the state claims of assault and battery against Defendants
Geradeau, Overton and Peters.13 See, e.g., Christopher o/b/o N.C. v. City of Mount Vernon, No.
16 Civ. 00137, 2018 WL 4757963, at *7 (S.D.N.Y. Sept. 28, 2018) (denying summary judgment
on an assault and battery claim relying on the analysis used for a § 1983 excessive force claim).
Defendants argue that New York General Municipal Law § 50-k(6) prevents Plaintiff
from pursuing state law claims because Plaintiff failed to serve a notice of claim. This argument
is unpersuasive. The notice of claim requirement in § 50-k(6) does not apply “when the claim
alleges injuries resulting from intentional wrongdoing or recklessness, misconduct for which the
City has no obligation to indemnify an employee.” Hardee v. City of New York, No. 10 Civ.
7743, 2014 WL 4058065, at *8 (S.D.N.Y. Aug. 14, 2014) (internal quotation marks omitted); see
N.Y. Gen. Mun. Law § 50–k(3) (“[T]he 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.”). “Under New York Law, ‘[a]n “assault” is an
intentional placing of another person in fear of imminent harmful or offensive contact.’ A
“battery” is an intentional wrongful physical contact with another person without consent.’”
Girden v. Sandals Int’l, 262 F.3d 195, 203 (2d Cir. 2001) (quoting United Nat’l Ins. Co. v.

13

Unlike the federal claim of excessive force, the state claims of assault and battery do not
survive against Defendant Morris because she did not engage in “intentional physical conduct
placing [] [P]laintiff in imminent apprehension of harmful contact” or otherwise touch Plaintiff,
which is required for individual liability on these claims. See Thaw v. N. Shore Univ. Hosp., 12
N.Y.S.3d 152, 155 (2d Dep’t 2015).
18

Waterfront N.Y. Realty Corp., 994 F.2d 105, 108 (2d Cir. 1993)); see Thaw v. N. Shore Univ.
Hosp., 12 N.Y.S.3d 152, 155 (2d Dep’t 2015). “To succeed on an assault or battery claim in the
law enforcement context, a plaintiff must demonstrate that defendants’ conduct ‘was not
reasonable within the meaning of the New York statute concerning justification for law
enforcement’s use of force in the course of performing their duties.’” Randolph v. Metro.
Transportation Auth., No. 17 Civ. 1433, 2018 WL 2943744, at *6 (S.D.N.Y. June 12, 2018)
(quoting Nimely v. City of New York, 414 F.3d 381, 391 (2d Cir. 2005)). To find Defendants
Geradeau, Overton and Peters liable for assault or battery, a trier of fact would have to conclude
that Defendants acted intentionally and unreasonably -- conduct that falls outside of § 50-k. See
id. Plaintiff’s failure to file a notice of claim does not preclude pursuit of his assault and battery
claims against Defendants Geradeau, Overton and Peters.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgement is GRANTED in
part and DENIED in part. Summary judgment is granted as to all Defendants on all claims
except the (1) § 1983 excessive force claim against Defendants Morris, Geradeau, Overton and
Peters for the alleged May 2, 2017, attack, and (2) assault and battery claim against Defendants
Geradeau, Overton and Peters, for which summary judgment is denied. For clarity, the only
remaining claims are the (1) § 1983 excessive force claim against Defendants Morris, Geradeau,
Overton and Peters for the alleged May 2, 2017, attack (but not the handcuffing), and (2) assault
and battery claim against Defendants Geradeau, Overton and Peter.

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The Clerk of Court is respectfully directed to close the motion at Docket Number 70 and
to mail a copy of this Opinion and Order to pro se Plaintiff. Separate orders will be issued
setting trial dates and requesting pro bono counsel for Plaintiff.
Dated: February 11, 2019
New York, New York

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