OPINION AND ORDER

DENISE COTE, District Judge:

Plaintiff Rodney Boomer ("Boomer"), who is proceeding pro Se, brought this action on July 26, 2000, pursuant to 42 U.S.C. § 1983 ("Section 1983"), alleging excessive force and deprivation of medical treatment in violation of the Fourteenth Amendment in connection with a cell extraction which occurred on the night of September 14, 1999, at the Central Punitive Segregation Unit ("CPSU") of the Otis Bantum Correctional Center at Riker's Island, where Boomer was a pre-trial detainee. Boomer also alleges assault, battery, and negligence under state law. On August 29, 2001, Dr. Patel ("Patel") and St. Barnabas Hospital ("St. Barnabas") (collectively, the "Hospital Defendants") moved to dismiss. By Opinion and Order dated December 17, 2001, this Court denied that motion. Boomer v. Lanigan, No. 00 Civ. 5540 (DLC), 2001 U.S. Dist. LEXIS 20833 (S.D.N.Y. 2001). Following discovery,. Gary Lanigan ("Lanigan"), L. Grant ("Grant"), Randy Wheeler ("Wheeler") and Andre White ("White"), Ervin Weatherl ("Weatherl"), Ronnie Santana ("Santana"), Elliot Martin ("Martin"), and Peter Conquet ("Conquet") (collectively, the "DOCS Defendants") moved for summary judgment. The Hospital Defendants also moved for summary judgment. For the reasons stated below, defendants' motions for summary judgment are granted in part and denied in part.

BACKGROUND

The following facts are undisputed or as described by Boomer unless noted otherwise. Boomer has a history of epilepsy resulting from a head injury sometime in 1996 or 1997, and walks with a cane because of an injury sustained during a fight with an inmate. Boomer also has a long history of back pain for which he has received physical therapy.

On September 14, 1999, Boomer was a pre-trial detainee housed in an isolation cell in the CPSU. At approximately noon on September 14, Boomer began feeling "dizzy headed," which he described in his deposition testimony as "the same feeling when I'm about to go into a seizure." In his verified second amended complaint, Boomer states that, at approximately 2:00 p.m. and again at approximately 7:00 p.m., he told corrections officers, whom he is unable to identify, of his condition. The DOCS Defendants state that they have no record that Boomer informed anyone of his condition. According to Boomer, the corrections officer to whom he spoke at approximately 7:00 p.m. left the food slot of his cell door open and told him "to get some air" until medical personnel arrived. In his second amended complaint, Boomer states that no medical staff visited his cell. Boomer thereafter refused to remove his arm from the food slot of his cell door and was generally being loud and disruptive.

At approximately 9:45 p.m., a cell extraction team consisting of Captain Wheeler and Corrections Officers White, Weatherl, Santana, Martin, and Conquet (the "Extraction Team") assembled outside Boomer's cell. Boomer states that he attempted to explain to Wheeler that he was epileptic and feeling sick, but that Wheeler "swiftly cut [him] off by spraying chemical agent into [his] eyes, face and hair." A video tape made of the incident, which begins at 9:45 p.m., shows that Wheeler gave several orders to Boomer to remove his left arm from the food slot, but Boomer refused to do so. Wheeler then stated to the video camera that he received authorization from Assistant Deputy Warden Moran to remove plaintiff from his cell, and that he had received authorization from Igwe to use a chemical agent, but not an electronic immobilization shield.

According to the video tape evidence, at approximately 9:49 p.m., the Team opened the door of Boomer's cell slightly and Wheeler sprayed a one-second burst of a chemical agent. The Team then closed the door and waited for the chemical agent to take effect. Wheeler occasionally attempted to guide Boomer's arm back through the food slot. At approximately 9:53, Boomer began to slap his hand against the outside of the cell door below the food slot. At approximately 9:55 p.m., his left arm began to shake spasmodically.

In his second amended complaint, Boomer states that Wheeler ordered the Team to open and close the cell door several times while he was having convulsions and his arm was still hanging out of the food slot. According to the video tape evidence, however, the door to Boomer's cell remained closed until approximately 9:56 p.m., when the Team entered Boomer's cell, handcuffed Boomer, who was apparently unconscious, and carried him to an elevator, took him to another floor of the CPSU, and placed him on a stretcher. At approximately 10:04 p.m., the Team removed Boomer from the stretcher and carried him to a shower cell. At 10:05, the video tape of the incident temporarily stops.

Igwe states that at approximately 10:25 p.m., he examined Boomer at the shower area because Boomer refused to go to the examination room. Boomer states in his second amended complaint that although he was experiencing "severe head and neck pain and could have suffered a serious life threatening head concus[s]ion or brain damage during his extreme violent seizure attack," Igwe did not conduct an examination of him. Igwe's notes indicate that Boomer refused a "full evaluation." There is no video tape evidence of Igwe's examination.

At approximately 11:04 p.m., the video tape resumed and continued to record until 11:33 p.m. Wheeler stated to the video camera that Boomer had been examined by medical personnel and was being escorted to the "housing area." Boomer appears on the tape standing in the shower cell and does not appear to be in any pain. He waited patiently and watched through the shower cell door as the Team attempted to determine which key opened the door. Upon opening the door, the video tape shows the Team escorting Boomer to an elevator and then to another floor. Boomer walked without any apparent pain and appeared to be calm.

The video tape shows that when the Team then attempted to insert Boomer into another holding cell, Boomer became physically aggressive, threatening and spitting at a corrections officer not pictured. The tape shows that a scuffle ensued between Boomer and the Team, which consisted essentially of the Team leaning into Boomer to hold him against the wall until he settled down. While they were holding him against the wall, various Team members sought to talk Boomer into voluntarily entering the holding cell. The video tape further shows that after a few minutes, at approximately 11:12 p.m., the Team pushed him into the holding cell, and that Boomer never lost his footing when they did so. The video tape shows that inside the cell, the Team attempted to uncuff Boomer, but he resisted. The Team responded by again leaning against Boomer, who was now seated on a bench in the cell, to hold him in place until he again settled down. The video tape shows that at approximately 11:15 p.m., the Team ceased leaning against Boomer. They stood around him with only their hands resting on his shoulders and talked with him as he said that he would not stay in the holding cell and wanted to be returned to his original cell.

The tape shows that at 11:22 p.m., Wheeler attempted to explain to Boomer why he would remain in the holding cell. Boomer responded with aggressive language. The Team continued to stand around Boomer until 11:30 p.m., when they escorted him to the medical clinic. Boomer walked without any apparent pain or injury. At 11:33 p.m., Boomer was inserted without incident into a holding cell in the medical clinic. The tape then temporarily stops.

At 12:18 p.m., the video tape resumes. At 12:20 a.m. on September 15, Boomer was escorted out of the holding cell in the medical clinic to an examining table. The tape shows that at 12:21 a.m., Boomer was secured to the examining table. The tape then temporarily stops.

At 12:25 a.m., Boomer was examined by Patel. This examination is not recorded on tape. In his second amended complaint, Boomer states that he was "only verbally interviewed but once again obtain [ed] no medical treatment or exam" with regard to his epileptic condition.

The video tape resumes at 12:27 a.m. It shows the Team waiting for the examination to conclude. At 12:28 a. in., the tape temporarily stops. It resumes at 12:29 a.m. and shows the Team escorting Boomer to his original cell without incident. At 12:32 a.m., the tape recording concludes.

Boomer states in his second amended complaint that on September 20, 1999, he filed an "institutional grievance complaint" with respect to the cell extraction of September 14, 1999. Boomer states, however, that the grievance was returned to him and that he was "informed that [the CPSU] Grievance program do[es] not handle matters of staff assault, misuse of force and lack or denial in medical issues." Boomer does not specify who gave him this information. In this connection, Boomer has submitted an affidavit by inmate Ronald Henderson ("Henderson") in which Henderson states that DOCS' staff frequently mishandles inmate grievances.

In his "Second Opposition," Boomer states that he is unable to submit a copy of the grievance because his legal documents were taken from him while he was an inmate at Sing Sing Correctional Facility. In connection with the St. Barnabas Defendants' Motion to Dismiss, however, Boomer did submit a copy of the grievance that he states he filed. See Boomer, 2001 U.S. Dist. LEXIS 20838, at *7 In that grievance, which Boomer erroneously dated September 14, 1998, Boomer writes that he informed a corrections officer that he was epileptic and feeling ill. Thereafter,

[t]he officer left my food slot open telling me to get some air while he contact[s the] medical unit. Medical staff never showed up, and approximately (30) minutes later a[n] unknown captain and several officers showed up in full riot gear. As I started to explain to [the] captain that I am feeling ill and that I am a[n] epileptic person, [t]his captain swiftly cut me off by spraying chemical agent in my eyes, nose and face. I immediately went into a violent seizure attack while one of my arms remained extended out of [the] food slot. I was flopping around violently during my seizure attack and one could eas[i]ly see that I was undergoing an epileptic attack. However, this captain continued to order the cell door open while one of my arms remained extended out of [the] slot. They continued their assault while I remained unconscious and undergoing my seizure attack. I was taken to CPSU clinic and verbally interviewed by [a] doctor. I received no examination despite th[e] fact that I told him my back, head, [and] neck was hurting severely.

The DOCS Defendants' records do not reflect any filing of a grievance by Boomer in connection with the September 14, 1999 extraction. Their records show that Boomer filed three grievances from September 1999 to August 2000, and that none of these addressed the September 14 extraction.

Boomer admits in his "Second Opposition" that he took no action to appeal the CPSU staff's refusal to accept his grievance. Boomer states, however, that he "was powerless in this matter because he was CPSU-confined (23) twenty-three hours a day with absolutely no available hands on access to IGP [Inmate Grievance Procedure] Department, committee, warden or IGP staff person."

In his second amended complaint, Boomer further states that on September 21, an "investigator from the New York City Commission Department of Investigation for DOCS" named Willoughby ("Willoughby") visited Boomer's cell to obtain a written statement regarding the cell extraction. Boomer states that Willoughby also interviewed an inmate who witnessed the extraction.

Boomer states that he contacted Jonathan Chasan ("Chasan") of the New York City Prisoners' Rights Project and that Chasan obtained the video tape recordings of the September 14 cell extraction. Boomer states that he did not thereafter receive any more information from either Willoughby or Chasan.

Standard

Summary judgment may not be granted unless the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The substantive law governing the case will identify those issues that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1987). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the Court must view all facts in the light most favorable to the nonmoving party. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 465-66 (2nd Cir.), cert. denied, 151 L.Ed.2d 378, 122 S.Ct. 460 (2001). When the moving party has asserted facts showing that the nonmovant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of his pleadings. Fed.R.Civ.P. 56(e); see also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2nd Cir. 1995). In deciding whether to grant summary judgment, this Court must, therefore, determine (1) whether a genuine factual dispute exists based on the evidence in the record, and (2) whether the facts in dispute are material based on the substantive law at issue. Where, as here, a party is proceeding pro se, this Court has an obligation to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2nd Cir. 1999).

DISCUSSION

I. Federal Claims A. Excessive Force

"[T]he right of pretrial detainees to be free from excessive force amounting to punishment is protected by the Due Process Clause of the Fourteenth Amendment." United States v. Walsh, 194 F.3d 37, 47 (2nd Cir. 1999). In the Second Circuit, the same standard applies to excessive force claims under the Fourteenth Amendment as applies under the Eighth Amendment. Id. at 48. To establish a constitutional violation under either amendment, an inmate must meet both a subjective and an objective requirement. Id. at 48-49. "[T]he subjective requirement is satisfied if the defendant has a sufficiently culpable state of mind, shown by actions characterized by wantonness." Id. at 50 (citations omitted). The core of the inquiry is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillan, 503 U.S. 1, 7 (1992). As to the objective requirement, it is well established in this Circuit that "[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights." Boddie v. Schnieder, 105 F.3d 857, 862 (2nd Cir. 1997) (citation omitted). The plaintiff must show that the violation is "objectively sufficiently serious or harmful enough," Walsh, 194 F.3d at 50, and not de minimis, id.

Boomer argues that the DOCS Defendants used excessive force when they (1) used a chemical agent on him, (2) opened and closed his cell door repeatedly while he was experiencing a seizure, (3) entered his cell, and (4) pushed him into the holding cell. With respect to the use of the chemical agent, Boomer asserted in his second amended complaint that Wheeler used the spray as he was attempting to explain his medical problems to him. Boomer has failed to address, however, the video tape evidence that covers the approximately four minutes before the spray was used. It shows, and Boomer has not disputed, that the Wheeler used a chemical agent only after repeated orders to Boomer that he remove his arm from the food slot. In his opposition, Boomer argues that Wheeler simply ordered him to close his food slot without asking him why he refused to do so, and that this somehow constitutes excessive force. Boomer has failed to explain, however, why he should not have obeyed a repeated order of a corrections officer or why Wheeler, the commanding officer of a cell extraction team who had received authorization to extract Boomer from his cell, was obligated to listen to Boomer's complaint.

The DOCS Defendants have also shown, and Boomer has not disputed, that Wheeler used a minimal, one-second burst of the agent, after receiving authorization to do so from Igwe. Given these undisputed facts, Boomer has not presented evidence to raise an issue of fact that, as a subjective matter, the DOCS Defendants' actions were "characterized by wantonness."

With respect to the other incidents which Boomer alleged in his pleadings constituted excessive force, Boomer has failed to address the video tape evidence that the Team did not open and close his cell door repeatedly, that the Team entered his cell when he was unconscious and applied no force whatsoever to him at that time, and that when the Team pushed him into the holding cell, it did so with minimal force and only after holding him in place for several minutes in an effort to settle him down. In his submissions in opposition to the motions for summary judgment, Boomer has essentially abandoned his excessive force allegations with respect to these incidents. He has presented no evidence in response to the DOCS Defendants' video tape or motion papers. Given this undisputed evidence, Boomer cannot establish that the Team acted with "wantonness" or that their use of force constituted an objectively sufficiently serious deprivation of his constitutional rights. For these reasons, Boomer's claims of excessive force must be dismissed.

B. Deliberate Indifference to Medical Needs

While a convicted prisoner's right to medical care stems from the Eighth Amendment's ban on cruel and unusual punishments, see Farmer v. Brennan, 511 U.S. 825, 827 (1994), the analogous right of a pretrial detainee arises under the Due Process Clause of the Fourteenth Amendment. Henderson v. Sheahan, 196 F.3d 839, 845 n. 2 (7th Cir. 1999); Lopez v. LeMaster, 172 F.3d 756, 764 (10th Cir. 1999); Weyant v. Okst, 101 F.3d 845, 856 (2nd Cir. 1996); Ali v. Szabo, 81 F. Supp.2d 447, 463 (S.D.N.Y. 1999) "[W]hile the Supreme Court has not precisely limned the duties of a custodial official under the Due Process Clause to provide needed medical treatment to a pretrial detainee, it is plain that an unconvicted detainee's rights are at least as great as those of a convicted prisoner." Weyant, 101 F.3d at 856.

"[T]he official custodian of a pretrial detainee may be found liable for violating the detainee's due process rights if the official denied treatment needed to remedy a serious medical condition and did so because of his deliberate indifference to that need." Id. To prove a violation, a plaintiff must show deliberate indifference under an objective and a subjective test. Hathaway v. Coughlin, 99 F.3d 550, 553 (2nd Cir. 1996). To satisfy the objective prong, the alleged deprivation must be of a "sufficiently serious" condition, one that "may produce death, degeneration, or extreme pain." Morales v. Mackalm, et al., 278 F.3d 126, 132 (2nd Cir. 2002) (citation omitted). The subjective prong requires the plaintiff to demonstrate that the official acted with a sufficiently culpable state of mind, which must be "the equivalent of criminal recklessness," namely, when the official "knows of and disregards an excessive risk to inmate health or safety." Hathaway, 99 F.3d at 553 (citation omitted) Mere negligence or medical malpractice does not constitute deliberate indifference id nor do mere differences of opinion between the prisoner and the defendants concerning the proper course of treatment. Chance v. Armstrong, 143 F.3d 698, 703 (2nd Cir. 1998). Rather, officials must "intentionally deny or delay access to medical care or intentionally interfere with the treatment once prescribed." Estelle, 429 U.S. at 104-05.

Boomer argues that defendants were deliberately indifferent to his medical needs when they (1) failed to provide him with medical attention after he initially reported feeling dizzy, (2) used a chemical agent upon him despite his epileptic condition, (3) failed thoroughly to examine him in the shower cell, and (4) failed thoroughly to examine him at 12:25 a.m.

With respect to the first issue, Boomer has raised a material question of fact as to whether he informed corrections personnel that he was feeling dizzy at 2:00 p.m. and 7:00 p.m. on September 14, and as to whether any medical personnel visited his cell before the Team approached his cell at approximately 9:45 p.m. Ignoring requests for medical care made by a prisoner known to be an epileptic may constitute deliberate indifference to serious medical needs, particularly when it is undisputed that the inmate suffered a seizure after making those requests.

As to the use of the chemical agent, it is undisputed that Igwe was aware of Boomer's history of epilepsy when he authorized the use of a chemical agent during the cell extraction. In light of the undisputed facts that Boomer experienced a seizure upon being sprayed with the agent and that he required medical attention after that seizure, Boomer has raised a question of fact as to whether the authorization to use a chemical agent on an inmate with a history of epilepsy constituted deliberate indifference to that inmate's medical needs.

With respect to the final two issues, the thoroughness of the examinations, Boomer does not dispute that Igwe examined him at approximately 10:25 p.m. and that Patel examined him at approximately 12:25 a.m. Boomer's argument is that the examinations, neither of which was recorded on video tape, were not thorough enough given his epileptic condition and given the "excruciating" pain he states he was experiencing. The medical records do not reflect that Boomer was given any pain medication after his seizure. Boomer has raised a question of fact as to whether Igwe and Patel were deliberately indifferent to his medical needs in failing to treat the extreme pain he states he was experiencing. Boomer has not identified other treatment that his condition required and that he was denied during these two examinations.

C. Exhaustion

The Prison Litigation Reform Act ("PLRA") provides that

no action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

Each of the deliberate indifference claims that has survived defendants' motions for summary judgment was sufficiently identified in the copy of the grievance Boomer asserts that he submitted to the prison. Boomer states that the grievance was returned to him and that we was told, in effect, that the CPSU grievance process did not handle the claims he was grieving. Boomer failed to appeal this refusal to accept his grievance, but contends that he was unable to do so because of the restrictions associated with his confinement in CPSU. Boomer has also presented evidence, in the form of Henderson's affidavit, that the CPSU staff often failed properly to handle grievances. Boomer presents this evidence in support of the argument that but for the CPSU staff's failure to handle his grievance properly, he would have exhausted his administrative remedies. This evidence creates issues of fact regarding Boomer's exhaustion of his administrative remedies.

D. Qualified Immunity

Defendants argue that they are immune from liability under the doctrine of qualified immunity. "Qualified immunity shields public officials from liability for civil damages if their actions were objectively reasonable, as evaluated in the context of legal rules that were clearly established at the time." Poe v. Leonard, 282 F.3d 123, 132 (2nd Cir. 2002) (citation omitted) The first step in a qualified immunity analysis is to "determine whether the plaintiff ha[s] alleged a violation of a constitutional right." African Trade Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355, 359 (2nd Cir. 2002); see also Caldarola v. Calabrese, 298 F.3d 156, 160 (2nd Cir. 2002). The second step is to "determine whether the right was clearly established at the time of the alleged violation." African Trade, 294 F.3d at 359. Thus "a qualified immunity defense is established when . . . the defendant's action did not violate clearly established law." Poe, 282 F.3d at 133 (citation omitted). Because it was clearly established at the time of the alleged conduct that deliberate indifference to an inmate's medical needs violates an inmate's constitutional rights, the defense of qualified immunity is not available to any defendant who was deliberately indifferent.

II. State Law Claims A. Assault and Battery

Under New York law, an assault is "an intentional placing of another person in fear of imminent harmful or offensive contact," and a battery is "an intentional wrongful physical contact with another person without consent." United Nat'l Ins. Co. v. Waterfront N.Y. Realty Corp., 994 F.2d 105, 108 (2nd Cir. 1993); see also Johnson v. Suffolk County Police Department, 665 N.Y.S.2d 440, 440 (N.Y.App.Div. 1997). Neither tort requires a physical injury. See Hassan v. Marriott Corp., 663 N.Y.S.2d 558, 559 (N.Y.App.Div. 1997) ("Physical injury need not be present for an assault"); Zgraggen v. Wilsey, 606 N.Y.S.2d 444, 445 (N.Y.App.Div. 1994) ("An action for battery may be sustained without a showing that the actor intended to cause injury as a result of the intended contact.") The DOCS Defendants have not responded to Boomer's assault and battery claim other than to argue that it is barred by his failure to file a notice of claim with the Comptroller of the City of New York, which is addressed below.

B. Negligence

Boomer's claim that the Hospital Defendants were "negligent" in their treatment of him is governed by New York's medical malpractice law. "To establish a claim of medical malpractice under New York law, a plaintiff must prove (1) that the defendant breached the standard of care in the community, and (2) that the breach proximately caused the plaintiff's injuries." Milano v. Freed, 64 F.3d 91, 95 (2nd Cir. 1995) (citation omitted). "New York law further provides that, except as to matters within the ordinary experience and knowledge of laymen, expert medical opinion evidence is required to make out both of these elements." Id. (citing state court cases) See also Barnes v. Anderson, 202 F.3d 150, 259-60 (2nd Cir. 1999); Einaugler v. Supreme Court, 109 F.3d 836, 841 (2nd Cir. 1997) The requirement for expert medical testimony applies to pro se inmate plaintiffs. See, e.g., Perez v. State of New York, 742 N.Y.S.2d 140, 142 (3d Dept 2002).

Boomer has failed to present any expert medical testimony in support of this claim. Since Boomer's analogous Fourteenth Amendment; claims have survived summary judgment, he will be given a further opportunity to obtain expert medical testimony to support his state law claims of medical malpractice.

C. Notice of Claim

Defendants argue that Boomer's state law claims should be dismissed because he failed to file a notice of claim with the Comptroller of the City of New York. In federal court, state law notice of claim requirements apply to pendent state law claims such as Boomer's. Hardy v. N.Y. City Health Hosps. Corp., 164 F.3d 789, 793 (2nd Cir. 1999). It is well established that a plaintiff suing a New York City employee must serve a notice of claim on the City if, at the time the alleged injury occurred, the employee was acting within the scope of his duty such that the City may be required to indemnify the employee. See, e.g., Silverman v. City of N.Y, 98 Civ. 6277 (ILG), 2001 WL 218943, at *8 (E.D.N.Y. Feb. 2, 2001); Ortega v. City of N.Y., 95 Civ. 7206 (LMM), 2000 WL 358459, at *2 (S.D.N.Y. Apr. 7, 2000); Sussman v. N.Y. City Health Hosp. Corp., 94 Civ. 8461 (DBS), 1997 WL 334964, at *17 (S.D.N.Y. June 16, 1997); D'Angelo v. City of N.Y., 929 F. Supp. 129, 135 (S.D.N.Y. 1996); Alifieris v. Am. Airlines, Inc., 63 N.Y.2d 370, 377 (1984) (interpreting Section 50-j); cf. Shakur v. McGrath, 517 F.2d 983, 985 (2nd Cir. 1975) (notice of claim required in suit against employee doctors and the City "as their indemnitor") Under New York General Municipal Law Sections 50-e and 50-i, a plaintiff may not maintain a tort claim against a municipality unless that claim has been preceded by a notice of claim served upon the municipality within ninety days of the time the cause of action arose. See N.Y. Gen. Mun. Law §§ 50-e, -i (McKinney 1999) A plaintiff required to file a notice of claim fails to state a cause of action if he does not plead the following in the complaint: "that (1) the plaintiff has served the notice off claim; (2) at least thirty days have elapsed since the notice was filed (and before the complaint was filed); and (3) in that time the defendant has neglected to or refused to adjust or to satisfy the claim." Hardy, 164 F.3d at 793.

While the notice of claim requirement is applicable to certain claims against municipal employees, it does not, however, apply to all such claims. Section 50-e(1) does not itself create an obligation to file a notice of claim, but sets a ninety-day Lime limit for filing the notice "[i]n 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 . . . or any . . . employee thereof." N.Y. Gen. Mun. Law § 50-e(1)(a).

It appears that: Section 50-k is the source of the duty to file a notice of claim when suing City employees. Section 50-k, entitled "Civil actions against employees of the city of New York," provides for the defense and indemnification of City employees for certain tort claims. Indemnification is limited to acts that

occurred while the employee was acting within the scope of his public employment and in the discharge of his duties and w[ere] not in violation of any rule or regulation of his agency at the time the alleged damages were sustained; the duty to indemnify. shall not arise where the injury or damage resulted from intentional wrongdoing or recklessness on the part of the employee.

Defendants have not cited or discussed Section 50-k(6) or shown that they may be entitled to indemnification by the City. Accordingly, summary judgment on Boomer's state law claims based on his failure to plead the filing of a notice of claim is not available without a further showing.

CONCLUSION

For the reasons stated, defendants' motions for summary judgment are granted in part and denied in part. They are granted with respect to Boomer's excessive force claim. They are denied with respect to Boomer's deliberate indifference to medical needs claims and negligence claims arising from the alleged failure timely to provide Boomer with medical attention after he reported feeling dizzy, the authorization of the use of a chemical agent, and the failure to treat his pain at the 10:25 p.m. and 12:25 a.m. examinations. They are also denied with respect to the assault and battery claims. A Scheduling Order governing the further litigation of these issues will also be issued.