Opinion
No. 17-CV-839 (KMK)
09-23-2019
MYLES DEANTE CLAY HARRIS, Plaintiff, v. WESTCHESTER COUNTY DEPARTMENT OF CORRECTIONS; C.O. HINKSON; C.O. KENDALL; and SGT. JOHNSON, Defendants.
Appearances: Myles Deante Clay Harris Marcy, NY Pro Se Plaintiff Loren Zeitler, Esq. Taryn A. Chapman, Esq. Westchester County Department of Law White Plains, NY Counsel for Defendants
OPINION & ORDER
Appearances: Myles Deante Clay Harris
Marcy, NY
Pro Se Plaintiff Loren Zeitler, Esq.
Taryn A. Chapman, Esq.
Westchester County Department of Law
White Plains, NY
Counsel for Defendants KENNETH M. KARAS, District Judge:
Plaintiff Myles Deante Clay Harris ("Plaintiff"), currently incarcerated at Mid-State Correctional Facility, brings this pro se Action under 42 U.S.C. § 1983 against Defendants Westchester County Department of Corrections ("WCDOC"), Corrections Officer ("C.O.") Kendall ("Kendall"), C.O. Hinkson ("Hinkson"), and Sergeant Johnson ("Johnson") (collectively, "Defendants"), alleging that Defendants violated his constitutional rights by failing to break up a fight between Plaintiff and another inmate which resulted in Plaintiff breaking his arm. (See Compl. 3 (Dkt. No. 2).) Before the Court is Defendants' Motion for Summary Judgment (the "Motion"). (See Not. of Mot. (Dkt. No. 54).) For the following reasons, Defendants' Motion is granted in part and denied in part
I. Background
A. Factual Background
The following facts are taken from Defendants' statement pursuant to Local Civil Rule 56.1, (Defs.' Local Rule 56.1 Statement ("Defs.' 56.1") (Dkt. No. 56)), Plaintiff's Complaint, (Compl.), Plaintiff's Declaration in Opposition to the Motion, (Decl. of Myles Deante Clay Harris ("Pl.'s Decl.") (Dkt. No. 62)), Plaintiff's Memorandum in Opposition to the Motion, (Pl.'s Mem. in Opp'n to Mot. for Summ. J. ("Pl.'s Mem.") (Dkt. No. 63)), a letter Plaintiff filed on March 26, 2018, (Letter from Myles Deante Clay Harris to Court ("Pl.'s Letter") (Dkt. No. 40)), and the admissible evidence submitted by the Parties. Defendants have sent the required Rule 56.2 Notice to Plaintiff. (See Dkt. No. 57.)
Although "a plaintiff's pro se status does not allow him to rely on conclusory allegations or unsubstantiated speculation to overcome a motion for summary judgment," Almonte v. Florio, No. 02-CV-6722, 2004 WL 60306, at *3 n.10 (S.D.N.Y. Jan. 13, 2004) (citation and italics omitted), where a plaintiff "verifie[s] his complaint by attesting under penalty of perjury that the statements in the complaint [are] true to the best of his knowledge," the "verified complaint is to be treated as an affidavit for summary judgment purposes," Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995); see also Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004) ("[A] verified pleading . . . has the effect of an affidavit and may be relied upon to oppose summary judgment."); Fitzgerald v. Henderson, 251 F.3d 345, 361 (2d Cir. 2001) (holding that plaintiff "was entitled to rely on [his verified amended complaint] in opposing summary judgment"). Here, Plaintiff's Complaint includes a signed verification page stating that Plaintiff declares the contents of those filings to be true under the penalty of perjury. (Compl. 7.) Therefore, the Court will accept for purposes of this Motion all admissible statements set forth in Plaintiff's Complaint that are based on Plaintiff's personal knowledge and about which Plaintiff is competent to testify. See Colon, 58 F.3d at 872 ("A verified complaint is to be treated as an affidavit for summary judgment purposes, . . . provided that it meets the other requirements for an affidavit under Rule 56(e) . . . requiring affidavits to be made on personal knowledge, to set forth facts that would be admissible in evidence, and to demonstrate the affiant's competency to testify to the matters in the affidavit . . . ."); James v. Gage, No. 15-CV-106, 2019 WL 1429520, at *7 (S.D.N.Y. Mar. 29, 2019) (finding it appropriate to consider pro se plaintiff's first amended complaint as well as opposition papers in deciding a motion to dismiss).
The Court notes that Plaintiff's Declaration, Memorandum, and Letter do not include a declaration page and are not verified documents. The Court will nonetheless consider these documents to the extent they are based on Plaintiff's personal knowledge. See Berry v. Marchinkowski, 137 F. Supp. 3d 495, 530 (S.D.N.Y. 2015) (considering unsworn memorandum of law in opposition to summary judgment because memorandum was based on persona knowledge and because of "special solicitude due to pro se parties"); Hamm v. Hatcher, No. 05-CV-503, 2013 WL 71770, at *7 (S.D.N.Y. Jan. 7, 2013) (considering unsworn statements in pro se plaintiff's memorandum of law, but "only to the extent that they are based on personal knowledge or supported by other admissible evidence in the record").
Local Civil Rule 56.1(a) requires the moving party to submit a "short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried." The nonmoving party must then submit "a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short[,] and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried." Local Civ. R. 56.1(b). "If the opposing party . . . fails to controvert a fact set forth in the movant's Rule 56.1 statement, that fact will be deemed admitted pursuant to the local rule." Baity v. Kralik, 51 F. Supp. 3d 414, 418 (S.D.N.Y. 2014) (citation and quotation marks omitted); see also T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009) (same). "A pro se litigant is not excused from this rule," Brandever v. Port Imperial Ferry Corp., No. 13-CV-2813, 2014 WL 1053774, at *3 (S.D.N.Y. Mar. 13, 2014) (citation and italics omitted). Here, Plaintiff did not submit a 56.1 Statement but did submit a Declaration and a Memorandum in opposition to Defendants' Motion contravening several of the facts alleged in Defendants' 56.1 Statement.
Although Plaintiff has not submitted a 56.1 Statement in form, in light of the "special solicitude" afforded to pro se litigants "when confronted with motions for summary judgment," Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988), the Court will "in its discretion opt to conduct an assiduous review of the record," when deciding the instant Motion, Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (citation and quotation marks omitted); see also Houston v. Teamsters Local 210, Affiliated Health & Ins. Fund-Vacation Fringe Ben. Fund, 27 F. Supp. 3d 346, 349 (E.D.N.Y. 2014) ("Although [the] plaintiffs did not file a Rule 56.1 statement, the Court has independently reviewed the record to ensure that there is uncontroverted evidence to support the paragraphs referenced in [the] defendants' Rule 56.1."); Pagan v. Corr. Med. Servs., No. 11-CV-1357, 2013 WL 5425587, at *2 (S.D.N.Y. Sept. 27, 2013) (explaining that "[t]he [c]ourt ha[d] considered the [motions for summary judgment] in light of the entirety of the record to afford [the pro se] [p]laintiff the special solicitude to which he [was] entitled" where the plaintiff failed to submit a Rule 56.1 response (citation omitted)); Cherry v. Byram Hills Cent. Sch. Dist., No. 11-CV-3872, 2013 WL 2922483, at *1 (S.D.N.Y. June 14, 2013) ("[W]here a pro se plaintiff fails to submit a proper . . . Rule 56.1 statement in opposition to a summary judgment motion, the [c]ourt retains some discretion to consider the substance of the plaintiff's arguments, where actually supported by evidentiary submissions." (citation, italics, and quotation marks omitted)). The Court will therefore consider whether any evidence in the record contradicts Defendants' 56.1 Statements.
Where possible, the Court has relied on the undisputed facts in Defendants' 56.1 Statement and Plaintiff's submissions. However, direct citations to the record have also been used where relevant facts were not included in any of the Parties' submissions, or where the Parties did not accurately characterize the record.
1. The Altercation
a. The Events of January 6, 2015
In January 6, 2015, Plaintiff was confined in the Westchester County Jail (the "Jail") as a pre-trial detainee. (Defs.' 56.1 ¶ 1 (citing Decl. of Lauren Zeitler, Esq. ("Zeitler Decl.") Ex. C (Affidavit of Captain Christopher Smith ("Smith Aff.") ¶ 6 (Dkt. No. 55-3))).) On January 6, 2015, Plaintiff was escorted to the Old Jail Gymnasium (the "gym") for recreation. (Id. (citing Smith Aff. Ex. A (Pl.'s Criminal Record)).) Inmate Shawn Gaillard ("Gaillard") was the other inmate participating in indoor recreation in the gym at that time. (See Incident Report at Johnson Response Report, Hinkson Response Report, Kendall Response Report.)
Exhibit A to Smith's Affidavit appears to be a copy of Plaintiff's criminal record and does not support Defendants' statement that Plaintiff was being escorted to recreation. However, Exhibit B to Smith's Affidavit is the "Alarm or Incident Response and Use of Force Report" regarding the January 6, 2015 attack, and there is evidence in that Report that Plaintiff was escorted to the gym for recreation as stated. (See Smith Aff. Ex. B ("Incident Report").) Hinkson, Kendall, and Johnson's Incident Response Reports each state that the three of them were escorting Plaintiff to recreation in the gym immediately before the altercation. (Incident Report 5 ("Johnson Response Report"), 9 ("Hinkson Response Report"), 11 ("Kendall Response Report").)
Plaintiff states that on January 6, 2015 at approximately 3:20 p.m. in the "old jail gymnasium," (Compl. 2), he was involved in an altercation with another inmate, specifically Gaillard, (id. at 3). Plaintiff was walking to the other side of the gym when Gaillard charged toward him in a fighting stance. (Id.) Plaintiff put up his hands to defend himself until Gaillard threw a punch that broke Plaintiff's arm. (Id.) Plaintiff states that he felt his bone snap and he told Kendall, Hinkson, and Johnson that his arm was broken, but they allowed the altercation to continue "for a short period." (Id. at 3.) According to Plaintiff, Kendall, Hinkson, and Johnson "looked on for approximately 5-10 minutes before C.O. Hinkson intervened." (Id.) Thereafter, staff interfered and transported Plaintiff to the old jail clinic in a wheelchair. (Id.)
Plaintiff's filings do not have consistent pagination. To avoid confusion, the Court cites to the ECF-generated page numbers at the top right corner of the relevant page.
After the incident, Plaintiff was given Motrin and sent to Westchester Medical Center. (Compl. 3.) There, an x-ray was taken, his left arm was "set," put in a sling, and "splint wrapped" in a "bandage." (Id.) Plaintiff states that in addition to his injury he has suffered "permanent damage, mental anguish, emotional distress, pain and suffering, humiliation," and has "slipped into a deep depression . . . [and has] gained over 20 pounds." (Id. at 5.)
Defendants have submitted a video recording of the incident. (Zeitler Decl. Ex. A ("Video").) There are six CCTV cameras located in the gym. Those CCTV cameras are kept in a fixed position and cannot be manipulated. The cameras are installed, maintained, and periodically inspected as part of the normal course of business of the WCDOC. (Defs.' 56.1 ¶ 7 (citing Smith Aff. ¶ 11).)
The cameras that recorded the incident are designated "Camera 5" and "Camera 8" within the correctional facility, and the corresponding recordings are labeled as such in the video file provided by Defendants. (Defs.' 56.1 ¶ 8 (citing Smith Aff. ¶ 12).) Where the Court references the Video, it is referring to the recordings from Cameras 5 and 8.
The Video shows two COs entering the empty gym with Gaillard at 15:13:45, removing his handcuffs at 15:13:57. (Video at Camera 5.) At approximately 15:14:11, Plaintiff, whose handcuffs had already been removed, walks into the gym, accompanied by another CO. (Defs.' 56.1 ¶ 9 (citing Smith Aff. ¶ 13); Video at Camera 5.) Almost immediately, Plaintiff and Gaillard move aggressively towards each other. (Video at Camera 5.) Beginning at approximately 15:14:15, Plaintiff and Gaillard begin sparring without making physical contact. (Defs.' 56.1 ¶ 10 (citing Smith Aff. ¶ 14); Video at Camera 5.) Plaintiff began kicking at Gaillard at approximately 15:14:18. (Defs.' 56.1 ¶ 12 (citing Smith Aff. ¶ 15); Video at Camera 5.) At approximately 15:14:20, Plaintiff grabbed Gaillard's legs, lifted or attempted to lift him up, and the two began to wrestle. (Defs.' 56.1 ¶ 13 (citing Smith Aff. ¶ 16); Video at Camera 5.) At approximately 15:14:26, Plaintiff fell to the ground and Gaillard was over him and began to punch him. (Defs.' 56.1 ¶ 15 (citing Smith Aff. ¶ 17); Video at Camera 5.) During this period, the three COs stand back, move away, seemingly talk to each other and at times even look away—they make no motions or gestures towards the two fighting inmates. (Video at Camera 5, 15:14:16-26.) Plaintiff then said that his arm was broken and that the fight was over. (Defs.' 56.1 ¶ 16 (citing Kendall Response Report).) At approximately 15:14:30, Gaillard walked away from Plaintiff. (Id. ¶ 17 (citing Smith Aff. ¶ 18); Video at Camera 5.) During the approximate four-second period from when Plaintiff fell to the floor to when Gaillard walked away, Gaillard punched Plaintiff repeatedly and kicked him once. (Defs.' 56.1 ¶ 22 (citing Smith Aff. ¶ 19).) Approximately 15 seconds passed from the time that Plaintiff and Gaillard first began fighting to when Gaillard walked away. (Id. ¶ 18 (citing Smith Aff. ¶ 19).) During the fight, Plaintiff and Gaillard were repeatedly ordered to stop fighting but did not comply. (Id. ¶ 14 (citing Johnson Response Report).) However, at no time when Plaintiff started walking aggressively towards Gaillard, or when Plaintiff and Gaillard started fighting, did the officers appear to move closer or take any action to separate the two or stop the fight; the fight only comes to a stop when Gaillard walks away. (See Video at Camera 5, 15:14:15-35.)
The Court notes that the timestamps on the Video and the other evidence submitted by Defendants clearly refutes Plaintiff's statement that the altercation lasted between five to ten minutes, and makes clear that the fight lasted approximately 15 seconds.
b. Calling a Code
Defendants cite Johnson's Response Report for the proposition that a "Code 1" was called as soon as Plaintiff and Gaillard began to fight. (Defs.' 56.1 ¶ 11 (citing Johnson Response Report).) Johnson stated in his Response Report that a "code 1 signal (inmate fight) occurred in the gymnasium" at 15:13 p.m. (Johnson Response Report.) Johnson further stated that "[d]ue to [Plaintiff] claiming that his arm was broken, [] Hinkson called in a Code Signal 3." (Johnson Response Report.) In response to the "Code 3," medical personnel arrived. (Id.)
Kendall states in his Response Report that he called the Code 1 when Plaintiff and Gaillard began to fight, and the Code 3 when Plaintiff stated that his arm was broken and it looked visibly limp. (Kendall Response Report.)
Sergeant Craig Coletti ("Coletti"), who was part of the Emergency Response Team ("E.R.T."), stated that the E.R.T. responded to a "Code-1 (inmate fight)" at the gym, and that while the team was responding, a "Code-3 (medical emergency)" was also called to the gym. (Incident Report 7 (Coletti Response Report).)
Plaintiff states that Defendants did not call a code to central control during the altercation. (Pl.'s Mem. 7.) Plaintiff states that Kendall was involved in a previous, unrelated incident on May 16, 2014, in which Plaintiff was also involved, and that in the disciplinary report issued in the aftermath of that incident, Kendall recounted using "proper policy and procedure," including calling a code. (Id.) Plaintiff attaches copies of Kendall's disciplinary reports from May 2014 and January 2015, and correctly points out that Kendall did indeed list calling a code in the May 2014 report. (Compare Pl.'s Mem. 34, Ex. E (Pl.'s Disciplinary Report by Kendall January 2015) with Pl.'s Mem. 65, Ex. K (Pl.'s Disciplinary Report by Kendall May 2014).) Plaintiff includes these examples of previous disciplinary reports written by Kendall to argue that Kendall knew that calling a code was required and that he had previously done so and recorded doing so in his reports. (Pl.'s Mem. 7.) However, as the Court notes above, Kendall also stated that he called a Code 1 and a Code 3 after the January 6, 2015 incident at issue in this Action. (Kendall Response Report.)
c. The Attacker
According to Captain Christopher S. Smith ("Smith"), the commanding officer of WCDOC's Technical Services Unit, he reviewed WCDOC's files and confirmed there were no incidents prior to January 6, 2015 reported, or "keep separate" orders entered, concerning Plaintiff and Gaillard. (Defs.' 56.1 ¶ 4 (citing Smith Aff. ¶ 26).) "Keep separate" orders were implemented with respect to Plaintiff and Gaillard immediately following the incident. (Id. ¶ 5 (citing Smith Aff. ¶ 27).)
Plaintiff states that Gaillard was a known violent inmate, who had been in the Special Housing Unit ("SHU") and had only been returned to general population housing 24 hours before the altercation. (Pl.'s Mem. 8.) Plaintiff also states that he had previously been involved in incidents with Gaillard. However, none of the exhibits Plaintiff cites in support of this proposition—which reference previous violent incidents Plaintiff was involved in—reference Gaillard. (Pl.'s Mem. 10, 66, Ex. L (March 23, 2014 Grievance Report Against Plaintiff Involving Inmate Moore), 67 Ex. M (July 8, 2014 Grievance Report Against Plaintiff Involving Inmate Tingle), 68 (May 24, 2014 Grievance Report Against Plaintiff Involving Inmates Tingle and Jones).) Plaintiff further claims that he was housed "in a high-risk, high classification, disciplinary housing unit among the most dangerous detainees in the facility" and that this "clearly pose[d] a risk of serious harm." (Pl.'s Mem. 10.) But, Plaintiff does not identify any evidence, other than his own statements, that Gaillard and Plaintiff had a history of violent interactions, or specifically what risk of serious harm he faced.
2. WCDOC Policies
The WCDOC has an Alarm Response Policy that was created for the purpose of maintaining the security of the facility and initiating a response in the event of an emergency. (Defs.' 56.1 ¶ 25 (citing Zeitler Decl. Ex. D (Affidavit of Warden Keith Camera ("Camera Aff.") ¶ 10, Ex. A (WCDOC Policy and Procedure: Section 01 - Emergency Procedures ("Alarm Response Policy")) (Dkt. No. 55-4))).) The WCDOC also has a Use of Force Policy that was created for the stated purpose of providing guidelines and procedures for staff when they are confronted with a situation requiring the use of force. (Id. ¶ 26 (citing Camera Aff. ¶ 11, Ex. B (WCDOC Policy and Procedure: Section 18 - Use of Control and Security Equipment ("Use of Force Policy")) (Dkt. No. 55-4))).) In determining what degree of intervention should be used in a situation, a staff member is trained to base his or her judgment on the totality of the circumstances, (id. ¶ 27 (citing Camera Aff. ¶ 12)), and a staff member does not need to choose a degree of intervention that he or she believes may compromise his or her safety, (id. ¶ 28 (citing Camera Aff. ¶ 13)). When reviewing the actions of a staff member during an emergency situation, a reviewing facility administrator considers three factors, specifically, whether the staff member acted pursuant to (1) WCDOC policy, (2) the law, and (3) WCDOC training. (Id. ¶ 29 (citing Camera Aff. ¶ 14)).) After the incident, none of the individual Defendants was cited or counseled for his response to the incident. (Id. ¶ 30 (citing Camera Aff. ¶ 15).) Indeed, administrative review of the Incident concluded that the individual Defendants were in compliance with the Use of Force Policy at the WCDOC. (Id. ¶ 31 (citing Smith Aff. ¶ 23); Incident Report 2-3 (Use of Force Review Board).) No recommendations or other issues concerning the response to the incident were noted by the DOC administrative review. (Id. ¶ 32 (citing Smith Aff. ¶ 24).)
Plaintiff alleges, in relevant part, that all Defendants violated Section 01 as well as Section 18 of the WCDOC Policy and Procedures. (Pl.'s Mem. 4.) Section II.A of WCDOC's Use of Force Policy states in relevant part that "Force is restricted to justifiable self-defense, protection of others, protection of property and prevention of escapes and then only as a last resort." (Use of Force Policy 1.) Section IV.C.1 outlines the circumstances under which a staff member may use force, including in relevant part, "a. [t]o protect self or others against the use of unlawful force; b. [t]o protect self or others against death or serious bodily harm." (Id. at 3.) Plaintiff claims that under several of the prongs of Section IV.C.1, the use of force to protect him from bodily injury was reasonable and necessary, especially given that Gaillard ignored the officer's repeated verbal commands to stop fighting. (Pl.'s Mem. 5.) Plaintiff further argues that Defendants were required by law to intervene and failed to do so even though he was clearly being subjected to serious physical bodily harm. (Id.) Plaintiff cites Section IV.A, which states in relevant part that "[a]uthority for the use of force and security equipment shall rest with the supervisor" and that "[s]taff is authorized to use appropriate force when an escape is in progress or that danger to persons or damage to property is imminent." (Use of Force Policy 2.) Plaintiff states that Johnson was present during the attack, that he had rank of Sergeant and had the authority to authorize the use of force, but instead "folded his arms across his chest and did absolutely nothing to prevent Plaintiff from being seriously injured." (Pl.'s Mem. 5.)
3. Plaintiff's Grievance
Plaintiff checked boxes on his Complaint form indicating that the grievance procedure at the jail did not cover some or all of his claims and that he did not file a grievance in the jail where the claim arose or in any other facility related to this incident. (Compl. 4.) Plaintiff stated that his reason for not filing a grievance was that he was provided medical attention and was "unaware that this was a grievable issue." (Id.) Plaintiff states, however, that he informed several officials of him claim. He informed Kendall, Hinkson, and Johnson during and immediately after the incident. (Id. at 5.) Plaintiff states he also informed Sergeant Scott ("Scott"), Sergeant Vanlierop ("Vanlierop"), and other officers by word of mouth after the incident while he was housed in the Jail infirmary. (Id.) Plaintiff also informed "Ms. Elamane" and other "medical staff" who helped him in the old Jail clinic. (Id.) Plaintiff states that Captain Watkins and other staff viewed the video footage sometime after the incident and taunted him for getting "beat up." (Id. at 3.)
Plaintiff's handwriting is unclear and "Vanlierop" is the last name of the other Sergeant Plaintiff identifies as best as the Court can tell.
In a letter to the Court in response to a discovery dispute, Plaintiff further stated that he wrote a grievance about the January 6, 2015 altercation, and handed the grievance and a hand-written letter to Vanlierop and Scott. (Pl.'s Letter 1-2.) Scott took the grievance and later informed Plaintiff that she could not file it because the grievance was about medical issues. Scott allegedly told Plaintiff, "you can't grieve medical," and told him she would deliver the hand-written letter to Deputy Commissioner Wanda Smithson ("Smithson"). (Id.) Plaintiff states that this exchange with Scott is what he was referencing when he indicated on his Complaint that he did not file a grievance because the issue was not "grievable." (Id. at 2.) Plaintiff also specifically asked for discovery into whether he was told he could not file a grievance with respect to the incident at issue here. (Id.) Plaintiff restates this account in his Memorandum. (Pl.'s Mem. 5-6.) Defendants notably do not include any evidence from Vanlierop or Scott denying or otherwise discussing whether and what if anything they told Plaintiff about filing a grievance regarding the altercation.
Plaintiff further states that he wrote the letter to Smithson as instructed by Scott. (Pl.'s Mem. 6.) The letter is dated January 12, 2015 and details the January 6, 2015 incident. (Id. at 35, Ex. F. (Pl.'s Grievance Letter).) The letter states in relevant part that Hinkson, Kendall, and Johnson were all present at the time of the incident and did not intervene even though they saw the attack happening. (Id. at 1.) Plaintiff further details the inadequate medical treatment he received after the incident and states that he attempted to grieve the issue but was told by Scott and Vanlierop that he could not because the grievance was about a medical issue. (Id.)
Plaintiff also states that he was also never successfully able to grieve any of the related medical issues in his case. Plaintiff states that he was "victimized by staff resulting in the exacerbation of [his] left arm injury," and that he "handed Sergeant Jeremy Hurley a grievance with a written statement form alleging on 3-5-2015 . . . ERT used force on him." (Pl.'s Mem. 7, 62, Ex. J ("Pl.'s March 2015 Grievance Form").)
Defendants point out that Plaintiff filed grievances related to medical issues before he attempted to file a grievance related to the January 6, 2015 incident. Approximately nine months prior to the incident, on April 8, 2014, Plaintiff filed a grievance, No. P-31-14, that concerned medical issues. (Defs.' 56.1 ¶ 35 (citing Zeitler Decl. Ex. B (Affidavit of Captain Christopher Roberts ("Roberts Aff.") Ex. B ("Grievance No. P-31-14") (Dkt. No. 55-2))).) The Grievance Coordinator decided that Plaintiffs grievance lacked merit because all of the sick calls he claims went unanswered were found to have been answered. (Id. ¶ 37 (citing Grievance No. P-31-14 at 3).) Plaintiff refused to read the Decision of the Grievance Coordinator to indicate whether he accepted or appealed the answer, and his grievance was subsequently voided. (Id. ¶¶ 38-39 (citing Grievance No. P-31-14 at 1).) Plaintiff filed another medical grievance on April 22, 2014, wherein he complained that his medicine was being discontinued. (Id. ¶ 40 (citing Roberts Aff. Ex. C ("Grievance No. P-37-14")).)
Defendants do not include any evidence regarding how this grievance was ultimately resolved.
The Parties contest whether Plaintiff was aware of the relevant grievance procedure. Defendants state that Plaintiff was aware of the grievance procedure at the Jail, (Defs.' 56.1 ¶ 33), and cite to the Affidavit of Captain Christopher Roberts, who states that Plaintiff received the Inmate Rules and Regulations outlining the grievance procedure when he was admitted to the Jail, (Roberts Aff. ¶ 6). Defendants submit Plaintiff's signed Admission Form dated October 7, 2013. (Roberts Aff. Ex. A ("Plaintiff Admission Form").) The Form contained a checked box stating that Plaintiff received the Institutional Rules and Regulations. (Id.) Plaintiff denies that he received a copy of the WCDOC Institutional Rules and Regulations Handbook. (Pl.'s Mem. 6.) Plaintiff states that he was incapacitated at the time Defendants say he signed the Admission Form. Plaintiff submits copies of a Temporary Order of Observation and an Order for a Psychiatric Evaluation issued by the Mount Vernon City Court dated October 15, 2013, (Pl.'s Mem. 59, Ex. I (Pl.'s Temporary Order of Observation and Order for a Psychiatric Evaluation)), to argue that he was mentally incapacitated at the time Defendants claim he signed an Inmate Admission Form stating that he had received a copy of the Handbook, (Pl.'s Mem. 6).
B. Procedural Background
Plaintiff filed his Complaint on February 2, 2017. (Compl.) By order dated February 13, 2017, the Court granted Plaintiff's request to proceed in forma pauperis. (Dkt. No. 4.) Defendants filed their Answer on June 29, 2019. (Dkt. No. 13.) On September 13, 2017, the Court held an initial conference, (Dkt. (minute entry Sept. 13, 2017)), adopted a Case Management Order, (Dkt. No.15), and referred the case to a Magistrate Judge for general pretrial matters, (Dkt. No. 16). The Parties thereafter engaged in discovery. (Dkt. Nos. 18-46.)
On March 5, 2018, Plaintiff submitted an application for the Court to request pro bono counsel. (Dkt. No. 33.) On April 10, 2018, the Court denied Plaintiff's request without prejudice. (Dkt. No. 45.)
On May 2, 2018, and June 19, 2018, the Court held status conferences to resolve outstanding discovery issues. (Dkt. (minute entries for May 2, 2018 and June 19, 2018).) On July 13, 2018, Defendants submitted a pre-motion letter to the Court requesting a pre-motion conference to discuss Defendants' proposed Motion for Summary Judgment. (See Letter from Loren Zeitler, Esq., to Court (Dkt. No. 47).) On July 19, 2018, the Court held a pre-motion conference, (Dkt. (minute entry for July 19, 2018)), and adopted a briefing schedule, (Dkt. No. 49).
On September 28, 2018, Defendants filed their Motion for Summary Judgment and accompanying papers and exhibits. (Not. of Mot.; Zeitler Decl.; Defs.' 56.1; Defs.' Mem. of Law. in Supp. of Mot. for Summ. J. ("Defs.' Mem.") (Dkt. No. 58).) That same day, Defendants sent a Rule 56.2 Notice to Plaintiff. (Dkt. No. 57.)
On November 13, 2018, Plaintiff filed a Memorandum of Law and a Declaration in opposition to Defendants' Motion. (Pl.'s Decl.; Pl.'s Mem.) On December 7, 2018, Defendants filed their reply. (Defs.' Reply Mem. of Law in Further Supp. of Mot. for Summ. J. ("Defs.' Reply") (Dkt. No. 66).)
II. Discussion
A. Standard of Review
Summary judgment is appropriate where 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 Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123-24 (2d Cir. 2014) (same). "In determining whether summary judgment is appropriate," a court must "construe the facts in the light most favorable to the non-moving party and . . . resolve all ambiguities and draw all reasonable inferences against the movant." Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quotation marks omitted); see also Borough of Upper Saddle River v. Rockland Cty. Sewer Dist. No. 1, 16 F. Supp. 3d 294, 314 (S.D.N.Y. 2014) (same). "It is the movant's burden to show that no genuine factual dispute exists." Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also Berry, 137 F. Supp. 3d at 521 (same).
"However, when the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant's claim," in which case "the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." CILP Assocs., L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (alteration and quotation marks omitted). Further, "[t]o survive a [summary judgment] motion . . . , [a nonmovant] need[s] to create more than a 'metaphysical' possibility that his allegations were correct; he need[s] to 'come forward with specific facts showing that there is a genuine issue for trial,'" Wrobel v. County of Erie, 692 F.3d 22, 30 (2d Cir. 2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), "and cannot rely on the mere allegations or denials contained in the pleadings," Guardian Life Ins. Co. v. Gilmore, 45 F. Supp. 3d 310, 322 (S.D.N.Y. 2014) (quotation marks omitted); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) ("When a motion for summary judgment is properly supported by documents or other evidentiary materials, the party opposing summary judgment may not merely rest on the allegations or denials of his pleading . . . ."). And, "[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007).
"On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law." Royal Crown Day Care LLC v. Dep't of Health & Mental Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (quotation marks omitted). At this stage, "[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried." Brod, 653 F.3d at 164 (quotation marks omitted). Thus, a court's goal should be "to isolate and dispose of factually unsupported claims." Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir. 2004) (quotation marks omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). However, a district court should consider only evidence that would be admissible at trial. See Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 746 (2d Cir. 1998). "[W]here a party relies on affidavits . . . to establish facts, the statements 'must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant . . . is competent to testify on the matters stated.'" DiStiso, 691 F.3d at 230 (quoting Fed. R. Civ. P. 56(c)(4)).
As a general rule, "district courts may not weigh evidence or assess the credibility of witnesses at the summary judgment stage." Jeffreys v. City of New York, 426 F.3d 549, 551 (2d Cir. 2005); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (noting that at the summary judgment stage, the court is not to "weigh the evidence and determine the truth of the matter"); Vital v. Interfaith Med. Ctr., 168 F.3d 615, 622 (2d Cir. 1999) ("Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.") (quotation marks omitted). Where the evidence presents "a question of 'he said, she said'" the court "cannot . . . take a side at the summary judgment stage." Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 726 (2d Cir. 2010); see also Kassel v. City of Middletown, 272 F. Supp. 3d 516, 535 (S.D.N.Y. 2017) (noting that "it is not the role of the [c]ourt at summary judgment to resolve [a] factual clash"); Bale v. Nastasi, 982 F. Supp. 2d 250, 258-59 (S.D.N.Y. 2013) (stating that "[w]here each side . . . tells a story that is at least plausible and would allow a jury to find in its favor, it is for the jury to make the credibility determinations and apportion liability, and not for the court."). "Although [Plaintiff's] evidence may be thin, [Plaintiff's] own sworn statement is adequate to counter summary judgment." Scott v. Coughlin, 344 F.3d 282, 290-91 (2d Cir. 2003) (holding that "[t]he credibility of [Plaintiff's] statements and the weight of contradictory evidence may only be evaluated by a finder of fact.").
Finally, the Second Circuit has instructed that when a court considers a motion for summary judgment, "special solicitude" should be afforded a pro se litigant, Graham, 848 F.2d at 344; accord Mercado v. Div. of N.Y. State Police, No. 96-CV-235, 2001 WL 563741, at *7 (S.D.N.Y. May 24, 2001) (same), and a court should 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) (italics and quotation marks omitted). And, "the failure to oppose a motion for summary judgment alone does not justify the granting of summary judgment." Vt. Teddy Bear Co., 373 F.3d at 244; see also Jackson v. Fed. Exp., 766 F.3d 189, 196 (2d Cir. 2014) (explaining that "an examination of the legal validity of an entry of summary judgment should . . . be[] made in light of the opposing party's pro se status" (italics omitted)). "Nonetheless, proceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party's bald assertions unsupported by evidence . . . are insufficient to overcome a motion for summary judgment." Houston, 27 F. Supp. 3d at 351 (alterations, italics, and quotation marks omitted); see also Flores v. City of New York, No. 15-CV-2903, 2017 WL 3263147, at *2 (S.D.N.Y. July 31, 2017) (same).
B. Analysis
Defendants argue that Plaintiff has failed to exhaust his administrative remedies, (Defs.' Mem. 3-6), that Plaintiff's claims against WCDOC should be dismissed because it is not a separate legal entity, (id. at 6), that Plaintiff's claims against the County and the individual Defendants in their official capacity fail because Plaintiff has not established Monell liability, (id. at 7-9), that Plaintiff's failure-to-protect claim fails as a matter of law, (id. at 9-11), that Plaintiff's failure-to-intervene claim fails as a matter of law, (id. at 11-12), and that the individual Defendants are entitled to qualified immunity, (id. at 13-15).
Defendants also argue that Plaintiff's state law claims fail because Plaintiff failed to file a notice of claim. (Defs.' Mem. 15-16.) The Court does not construe Plaintiff's Complaint to have raised any state law claims and therefore need not address this argument.
1. Claims Against WCDOC
Defendants argue that Plaintiff's claims against WCDOC should be dismissed because it is not a separate legal entity, but rather a department within the County of Westchester. (Defs.' Mem. 6.) Under Federal Rule of Civil Procedure 17(b), "an entity can only be sued in federal court if it would be suable under the laws of the state where it was created," New York law in this case. MetroPCS N.Y., LLC v. City of Mount Vernon, 739 F. Supp. 2d 409, 419 (S.D.N.Y. 2010). "In New York . . . agencies of a municipality are not suable entities because they are merely administrative arms of a municipality, and do not have a legal identity separate and apart from the municipality." Id. (quotation marks and original alterations omitted); see also Schweitzer v. Crofton, 935 F. Supp. 2d 527, 551 (E.D.N.Y. 2013) (dismissing claim against the Suffolk County Department of Social Services "because it is not a suable entity"), aff'd, 560 F. App'x 6 (2d Cir. 2014). In light of Plaintiff's pro se status, the Court construes Plaintiff's claims against WCDOC as claims against the County of Westchester. See Ong v. Park Manor (Middletown Park) Rehab. & Healthcare Ctr., No. 12-CV-974, 2015 WL 5729969, at *25 (S.D.N.Y. Sept. 30, 2015) (construing pro se plaintiff's claims against a county agency as claims against the county). WCDOC is therefore dismissed from this Action and the County of Westchester is substituted as a Defendant.
2. Exhaustion
Defendants argue that Plaintiff has failed to exhaust his administrative remedies. (Defs.' Mem. 3-6.) The Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under [§] 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." 42 U.S.C. § 1997e(a). This "language is 'mandatory': An inmate 'shall' bring 'no action' (or said more conversationally, may not bring any action) absent exhaustion of available administrative remedies." Ross v. Blake, 136 S. Ct. 1850, 1856 (2016) (citation and some quotation marks omitted). The exhaustion requirement applies to "all inmate suits about prison life," Porter v. Nussle, 534 U.S. 516, 532 (2002), and includes actions for monetary damages even if monetary damages are not available as an administrative remedy, see Booth v. Churner, 532 U.S. 731, 741 (2001). Moreover, the PLRA "requires proper exhaustion, which means using all steps that the prison grievance system holds out." Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016) (citations, alterations, and quotation marks omitted). Indeed, the PLRA demands "strict compliance with the grievance procedure . . . , or else dismissal must follow inexorably." McCoy v. Goord, 255 F. Supp. 2d 233, 246 (S.D.N.Y. 2003) (citations, alteration, and quotation marks omitted).
The PLRA contains a "textual exception to mandatory exhaustion." Ross, 136 S. Ct. at 1858. "[T]he exhaustion requirement hinges on the 'availability' of administrative remedies: An inmate . . . must exhaust available remedies, but need not exhaust unavailable ones." Id. Available "grievance procedures . . . are capable of use to obtain some relief for the action complained of." Id. at 1859 (citation and quotation marks omitted). In Ross, the Supreme Court identified "three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief." Id. An administrative remedy is unavailable: (1) where "it operates as a simple dead end — with officers unable or consistently unwilling to provide any relief to aggrieved inmates," id. (citation omitted); (2) where the procedure is "so opaque that it becomes, practically speaking, incapable of use" such that "no ordinary prisoner can discern or navigate it," id.; or (3) where "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation," id. at 1860. It bears noting, however, that the "three circumstances discussed in Ross do not appear to be exhaustive," Williams, 829 F.3d at 123 n.2, but rather "guide the Court's inquiry," Khudan v. Lee, No. 12-CV-8147, 2016 WL 4735364, at *5 (S.D.N.Y. Sept. 8, 2016) (citation omitted). Finally, failure to exhaust is an affirmative defense, not a pleading requirement. Jones v. Bock, 549 U.S. 199, 216 (2007); Grullon v. City of New Haven, 720 F.3d 133, 141 (2d Cir. 2013). As such, Defendants bear the burden of proving failure to exhaust. See McCoy, 255 F. Supp. 2d at 248.
Here, Plaintiff admits in his Complaint that he did not file any grievances related to the January 6, 2015 altercation because he was provided medical attention and was "unaware that this was a grievable issue." (Compl. 4.) Plaintiff clarified in later submissions to the Court that he wrote a grievance related to the altercation and handed the grievance and a hand-written letter to Vanlierop and Scott. Scott took the grievance but later told Plaintiff, "you can't grieve medical," and told him she would deliver the hand-written letter to Smithson. (Pl.'s Letter 1-2; Pl.'s Mem. 5-6.) Plaintiff wrote the letter to Smithson as instructed by Scott detailing the altercation. (Pl.'s Mem. 6; Pl.'s Grievance Letter.) Plaintiff also denies Defendants' statements that he was aware of the grievance procedure at the Jail because he received the WCDOC Institutional Rules and Regulations Handbook. (Defs.' 56.1 ¶ 33; Roberts Aff. ¶ 6; Plaintiff Admission Form.) Plaintiff states that he did not receive a copy of the Handbook that would have advised him of grievance procedure, (Pl.'s Mem. 6), and that he was incapacitated at the time Defendants say he signed the Admission Form, (id.; Pl.'s Temporary Order of Observation and Order for a Psychiatric Evaluation). However, Defendants cite to two previous grievances related to medical issues as proof of Plaintiff's awareness that he could file a grievance related to the incident. (Defs.' Mem. 4; Grievance No. P-31-14; Grievance No. P-37-14.) Defendants do not, however, include any evidence in the Motion papers related to Scott and Vanlierop's alleged statements to Plaintiff that his grievance could not be filed.
Defendants' argument that Plaintiff has previous filed grievances related to medical issues does not address Plaintiff's claim that he was expressly told by Vanlierop and Scott, after handing them his grievance, that he could not file a grievance and that he followed their instruction to send a letter to Smithson instead. As noted, an administrative remedy is unavailable where "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation," including where "officials misled or threatened individual inmates so as to prevent their use of otherwise proper procedures." Ross, 136 S. Ct. at 1860 (emphasis added). "Where prison officials misinform an inmate regarding next steps in the grievance procedure or represent that additional steps are not necessary, administrative remedies arguably are not 'available' to the inmate, and thus the [c]ourt may potentially excuse his failure to exhaust." Spence v. Armor Correctional Health, No. 12-CV-3131, 2013 WL 3189165, at *2 (E.D.N.Y. June 18, 2013) (citation omitted); Williams v. Suffolk County, No. 11-CV-5198, 2012 WL 6727160, at *5-6 (E.D.N.Y. Dec. 28, 2012) (same). Here, "[d]efendants' failure to submit evidence refuting or explaining Plaintiff's claim that he was told his complaint was not grievable leaves material issues of fact regarding" whether Plaintiff's failure to exhaust was excusable. Price v. Oropallo, No. 13-CV-563, 2014 WL 4146276, at *8 (N.D.N.Y. Aug. 19, 2014); see Dizak v. Hawks, No. 15-CV-1171, 2018 WL 1894542, at *11-12 (N.D.N.Y. Jan. 9, 2018) (holding that confusion caused by grievance office's mis-numbering of grievance, the office's subsequent failure to reply to the plaintiff's inquiries, and the office's failure to correct the error, rendered exhaustion procedure unavailable); Randle v. Alexander, 170 F. Supp. 3d 580, 590 (S.D.N.Y. Mar. 16, 2016) (denying summary judgment on exhaustion grounds where the plaintiff had previously filed grievances, those grievances were denied and the opinions expressly disclaimed jurisdiction over the grieved issue, and the plaintiff believed formal grievance channels were closed to him); Smith v. City of New York, No. 12-CV-3303, 2013 WL 5434144, at *27 (S.D.N.Y. Sept. 26, 2013) (holding that the plaintiff's failure to exhaust may be excusable where an officer "allegedly misrepresented that his issue was non-grievable"); Spence, 2013 WL 3189165, at *2 (declining to dismiss on exhaustion grounds because the complaint raised potential for excusing exhaustion requirement where the plaintiff allegedly failed to appeal grievance denials because a prison official allegedly misinformed him about appeal procedure); Lewis v. Cunningham, No. 05-CV-9243, 2007 WL 2412258, at *2 (S.D.N.Y. Aug. 23, 2007) (finding the plaintiff's failure to exhaust justified where a supervisor told him that filing a medical grievance was improper and to instead write a letter to the chief medical officer, which the plaintiff did); Partee v. Goord, No. 06-CV-15528, 2007 WL 2164529, at *4 (S.D.N.Y. July 25, 2007) (excusing exhaustion requirement where the plaintiff was told in reply to his grievance that his claim was outside the purview of the grievance process, and he reasonably understood this to mean his dispute was not grievable).
Defendants have failed to meet their burden of production in that they have submitted no evidence to counter Plaintiff's statement that he was informed by Vanlierop and Scott that his grievance could not be filed, and thus a question of fact remains as to whether Plaintiff's failure to exhaust was excusable. See Washington v. Chaboty, No. 09-CV-9199, 2015 WL 1439348, at *8 (S.D.N.Y. Mar. 30, 2015) (denying summary judgment where the defendants failed to carry "their burden of demonstrating that [the plaintiff] failed to exhaust his administrative remedies"); see also Vt. Teddy Bear Co., 373 F.3d at 243 ("If the evidence submitted in support of the summary judgment motion does not meet the movant's burden of production, then summary judgment must be denied even if no opposing evidentiary matter is presented." (citation, emphasis, and quotation marks omitted)).
3. Monell Liability
Defendants argue that Plaintiff's claims against the County and the individual Defendants in their official capacities fail because Plaintiff has not established Monell liability. (Defs.' Mem. 7-9.) "Congress did not intend municipalities to be held liable [under § 1983] unless action pursuant to official municipal policy of some nature caused a constitutional tort." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). Thus, "to prevail on a claim against a municipality under [§] 1983 based on acts of a public official, a plaintiff is required to prove: (1) actions taken under color of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an official policy of the municipality caused the constitutional injury." Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008) (citation omitted). The fifth element reflects the notion that a Monell defendant "may not be held liable under § 1983 solely because it employs a tortfeasor." Bd. of County Comm'rs v. Brown, 520 U.S. 397, 403 (1997); Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986) (holding that a municipality may not be liable under § 1983 "by application of the doctrine of respondeat superior" (italics omitted)). Rather, "municipalities may only be held liable when the municipality itself deprives an individual of a constitutional right." Newton v. City of New York, 566 F. Supp. 2d 256, 270 (S.D.N.Y. 2008).
A plaintiff may satisfy the "policy, custom[,] or practice" requirement by alleging one of the following:
(1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question; (3) a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage of which a supervising policy-maker must have been aware; or (4) a failure by policymakers to provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees.Brandon v. City of New York, 705 F. Supp. 2d 261, 276-77 (S.D.N.Y. 2010) (citations omitted); see also Patterson, 375 F.3d at 226-27 (describing methods of establishing Monell liability).
Plaintiff does not allege the existence of any County policy or custom, or any failures of training or supervision. Rather, Plaintiff details an isolated incident between him and County employees that was the cause of his alleged constitutional injuries. However, "Monell liability does not derive from individual incidents of wrongdoing by non-policymakers." Treadwell v. County of Putnam, No. 14-CV-10137, 2016 WL 1268279, at *4 (S.D.N.Y. Mar. 30, 2016) (citation omitted); see also Sorlucco v. N.Y.C. Police Dep't, 971 F.2d 864, 870 (2d Cir. 1992) (noting that a municipality "may not be liable under § 1983 simply for the isolated unconstitutional acts of its employees"); Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991) (noting that "a single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice to show a municipal policy" (citations omitted)). Thus, Plaintiff has failed to state Monell liability and all claims against the County must be dismissed.
Additionally, it is well settled that a "claim asserted against an individual in his official capacity . . . is in effect a claim against the governmental entity itself." Lore v. City of Syracuse, 670 F.3d 127, 164 (2d Cir. 2012) (citing Monell, supra at 691 n.55). "Failure to establish municipal liability results in dismissal of Plaintiff's claims against the individual defendants in their official capacities." Simms v. De Paolis, No. 99-CV-2776, 2000 WL 1134564, at *4 (S.D.N.Y. Aug. 2, 2000). Because Plaintiff has failed to allege Monell liability, all claims against the individual Defendants in their official capacities also fail. See Voltaire v. Westchester County Dep't of Soc. Servs., No. 11-CV-8876, 2016 WL 4540837, at *7 (S.D.N.Y. Aug. 29, 2016) (dismissing claims against municipal employees in their official capacities where the complaint "provided no facts that would allow [the court] to plausibly infer that [the defendants] acted pursuant to a municipal custom or practice").
4. Failure to Intervene Claim
Defendants next argue that Plaintiff's failure to intervene claim fails as a matter of law. (Defs.' Mem. 11-13.) Prison officials have a duty, imposed under either the Eighth Amendment with respect to convicted prisoners, or the Due Process Clauses of the Fifth and Fourteenth Amendments with respect to pretrial detainees, see Caiozzo v. Koreman, 581 F.3d 63, 70-71 (2d Cir. 2009) (holding that the same "deliberate indifference" standard applies to claims challenging prison conditions under the Eighth Amendment and the Due Process Clauses of the Fifth and Fourteenth Amendments), to "ensure that inmates receive adequate food, clothing, shelter, and medical care, and [to] take reasonable measures to guarantee the safety of the inmates," Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations and quotation marks omitted). Prison officials must "take reasonable measures to guarantee the safety of inmates in their custody." Hayes v. N.Y.C. Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996); see also McRae v. Gentile, No. 14-CV-783, 2015 WL 7292875, at *2 (N.D.N.Y. Oct. 20, 2015) (same).
"A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence." O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988) (collecting cases). In order to establish a failure to intervene claim, the plaintiff must show:
(1) that [the prison official] observed or had reason to know that the [p]laintiff was involved in a physical altercation with another inmate; (2) that [the prison official] had a reasonable opportunity to intervene to prevent the attack from continuing [i.e.,] the attack must have been of sufficient duration that an officer present as the scene would have had a reasonable opportunity to attempt to prevent the attack from continuing[ ]; (3) that in failing to intervene [the prison official was] deliberately indifferent to a substantial risk of harm to [the][p]laintiff; and (4) that [the prison official's] deliberate indifference to a substantial risk of harm was a risk that caused [the][p]laintiff some harm."Rosen v. City of New York, 667 F. Supp. 2d 355, 360 (S.D.N.Y. 2009) (citation omitted); Henry v. County of Nassau, No. 13-CV-7427, 2015 WL 2337393, at *7-8 (E.D.N.Y. May 13, 2015) (same); see also Jean-Laurent v. Wilkerson, 438 F. Supp. 2d 318, 327 (S.D.N.Y. 2006) ("Liability will attach only when (1) the officer had a realistic opportunity to intervene and prevent the harm; (2) a reasonable person in the officer's position would know that the victim's constitutional rights were being violated; and (3) the officer does not take reasonable steps to intervene."), aff'd, 461 F. App'x 18 (2d Cir. 2012).
"In the context of a failure to intervene claim, an officer displays deliberate indifference when he has adequate time to assess a serious threat against an inmate and a fair opportunity to protect the inmate without risk to himself, yet fails to intervene." Rosen, 667 F. Supp. 2d at 360 (citation, quotation marks, and alterations omitted). "Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is a question of fact, unless the evidence shows that a reasonable jury could not possibly conclude otherwise." Toliver v. City of New York, No. 10-CV-5806, 2013 WL 6476791, at *3 (S.D.N.Y. Dec. 10, 2013) (citation and quotation marks omitted), adopted by 2014 WL 549402 (S.D.N.Y. Feb. 11, 2014); see also Tafari v. McCarthy, 714 F. Supp. 2d 317, 362-63 (N.D.N.Y. 2010) (holding that whether an officer had a "reasonable opportunity" to intervene "can be decided as a matter of law only if 'considering all the evidence, a reasonable jury could not possibly conclude' that the officer had a reasonable opportunity to intervene" (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)).
Defendants argue that because the altercation lasted approximately 15 seconds, oral orders were repeatedly given for the inmates to stop fighting, a Code 1 was called, and the response of each individual Defendant was found to be in compliance with WCDOC policy by the administrative review board, no reasonable jury could find that Defendants failed to intervene or had a reasonable opportunity to further intervene by breaking up the fight. (Defs.' Mem. 13.) Even accepting each of these facts as true, the Court cannot conclude as a matter of law that Defendants did not have a reasonable opportunity to intervene by separating the inmates, and that their intervention was sufficient to safeguard Plaintiff's safety. A reasonable jury could view the Video and find that the COs could have stopped the fight at various points—when Plaintiff started walking over to Gaillard, once the two started hitting each other, or once the two were on the floor. A reasonable jury also could conclude that the officers were not outnumbered and that, because of the nature of this particular fight, there were safe opportunities to intervene. A reasonable jury could even conclude that there was something altogether suspect about how the officers appeared to bring the two inmates together, let them charge at each other, and then stood at a distance and even turned away as they fought.
The Second Circuit's holding in Figueroa v. Mazza, 825 F.3d 89 (2d Cir. 2016) is instructive. In Figueroa, the Second Circuit reversed the district court's grant of summary judgment for defendant officers where the plaintiff was assaulted in the back of a police car by an officer for approximately between twenty seconds and two minutes, holding that "even assuming that the assault lasted less than twenty seconds," the court could not hold "that the assault occurred so quickly that the . . . officers lacked time to intercede as a matter of law." Id. at 107-08. Whether Defendants had a reasonable opportunity to intervene, and whether calling a Code 1 and verbally telling the inmates to stop fighting was a reasonable response, are material questions of fact for a jury, not this Court. See Randle, 170 F. Supp. 3d at 591 (denying summary judgment on failure to intervene claim where dispute of material fact remained as to whether defendant prison official was present during portions of the fight between inmates); Tafari, 714 F. Supp. 2d at 362-63 (denying summary judgment on failure to intervene claim where dispute of material fact remained as to whether the defendant prison officer had a reasonable opportunity to intervene, given that evidence showed another officer eventually did intervene); Rosen, 667 F. Supp. 2d at 360 (denying summary judgment on failure to intervene claim where dispute of material fact remained as to how much of fight between inmates the defendant prison official witnessed, and whether there was a reasonable opportunity to intervene).
The Court is mindful that Figueroa is a case involving an altercation between an arrestee and another police officer, rather than between two inmates, and that the risk of harm to intervening officers is potentially greater in the context of an inmate-on-inmate altercation. However, the Second Circuit did not base its holding on the fact that an officer-arrestee fight was at issue. Rather, the Court reasoned that there were numerous material fact questions as to the possibility of intervention that remained and therefore declined to "stray[] into the realm of improper fact-finding." Figueroa, 825 F.3d at 107. A jury in this case may well conclude that the fight between Plaintiff and Gaillard was too risky a fight for the COs to intervene in—but this Court cannot as a matter of law conclude so, especially in light of Figueroa, and certainly not on the basis of the 15-second duration of the fight alone.
Defendants cite cases in which district courts held as a matter of law that prison officials did not have a reasonable opportunity to intervene in inmate fights that lasted longer than the fight in question here, including fights lasting several minutes. (Defs.' Mem. 12-13 (citing Henry, 2015 WL 2337393, at *7-8; Stewart v. Schiro, No. 13-CV-3613, 2015 WL 1854198, at *8 (E.D.N.Y. Apr. 22, 2015); Desulma v. City of New York, No. 98-CV-2078, 2001 WL 798002, at *7 (S.D.N.Y. July 6, 2001)).) The Court, however, is bound by the Second Circuit's holding in Figueroa, which notably postdates the cases Defendants cite. 825 F.3d at 107-08. In any event, the Court is persuaded by the district court cases cited above holding, in circumstances similar to those presented here, that whether an officer had a reasonable opportunity to intervene is a question for the fact finder.
This Court must not "stray[] into the realm of improper fact-finding," Figueroa, 825 F.3d at 107, and cannot hold as a matter of law that the 15-second fight was not of sufficient duration for the officers to attempt to intervene by breaking up the fight. A reasonable jury could find that Defendants had sufficient time to break up the fight, that they were deliberately indifferent in not doing so, and that Plaintiff's arm may not have been broken if Defendants had intervened beyond calling a Code 1 and telling the inmates to stop fighting. Defendants' Motion with respect to Plaintiff's failure to intervene claim is therefore denied.
5. Failure to Protect Claim
Defendants argue that Plaintiff's failure to protect claim fails as a matter of law. (Defs.' Mem. 9-11.) Prison officials must "take reasonable measures to guarantee the safety of inmates in their custody." Hayes, 84 F.3d at 620 (citing Farmer, 511 U.S. at 832). Specifically, "[p]rison officials have a duty to protect prisoners from violence at the hands of other inmates since being violently assaulted in prison is 'simply not part of the penalty that criminal offenders pay for their offenses against society.'" Lee v. Artuz, No. 96-CV-8604, 2000 WL 231083, at *4 (S.D.N.Y. Feb. 29, 2000) (quoting Farmer, 511 U.S. at 834). However, "not . . . every injury suffered by one prisoner at the hands of another . . . translates into constitutional liability for prison officials responsible for the victim's safety." Farmer, 511 U.S. at 834. Instead, "the prisoner must allege actions or omissions sufficient to demonstrate deliberate indifference; mere negligence will not suffice." Hayes, 84 F.3d at 620.
To satisfy the deliberate indifference standard, a plaintiff must show that (1) "he is incarcerated under conditions posing a substantial risk of serious harm," and (2) "the defendant prison officials possessed sufficient culpable intent." Id. (citing Farmer, 511 U.S. at 834). The first prong is objective and requires that prison officials provide inmates with "basic human needs, one of which is 'reasonable safety.'" Helling v. McKinney, 509 U.S. 25, 33 (1993) (citation omitted). "The second prong of the deliberate indifference test, culpable intent, . . . involves a two-tier inquiry." Hayes, 84 F.3d at 620. "[A] prison official acts with deliberate indifference and thus 'has sufficient culpable intent if he has knowledge that an inmate faces a substantial risk of serious harm and he disregards that risk by failing to take reasonable measures to abate the harm.'" Lee, 2000 WL 231083, at *5 (quoting Hayes, 84 F.3d at 620); see also Price, 2014 WL 4146276, at *8 (explaining that to establish deliberate indifference, "a plaintiff must prove that the defendant official actually knew of and disregarded an excessive risk of harm to the plaintiff's safety"). "A substantial risk of serious harm can be demonstrated where there is evidence of a previous altercation between a plaintiff and an attacker, coupled with a complaint by plaintiff regarding the altercation or a request by [a] plaintiff to be separated from the attacker." Gilmore v. Rivera, No. 13-CV-6955, 2014 WL 1998227, at *3 (S.D.N.Y. May 14, 2014) (citation omitted).
Here, Defendants submitted evidence that there were no previous incidents and no "keep separate" orders involving Plaintiff and Gaillard until after the January 6, 2015 incident at the center of this case. (Smith Aff. ¶ 27.) Defendants argue that Plaintiff thus fails to prove that Defendants had the requisite culpable state of mind to show they were deliberately indifferent. (Defs.' Mem. 10.) Plaintiff, on the other hand, states that he had a history of violent incidents with Gaillard, that Gaillard had been released from SHU shortly before the incident, and that Defendants knew Gaillard was dangerous. (Pl.'s Mem. 8-10.) Plaintiff does not, however, state that any Defendant had any knowledge of the alleged previous incidents between Plaintiff and Gaillard, nor does Plaintiff specify why Gaillard was especially dangerous, especially given that Plaintiff states that the whole unit he was housed in was highly dangerous, and what if anything Defendants knew about any particular risk he posed to Plaintiff. This failure to offer evidence that Defendants had any knowledge or were on notice that Gaillard posed a risk to Plaintiff dooms Plaintiff's failure to protect claim. See Charles v. Rockland County Office of the Sherriff, No. 16-CV-166, 2019 WL 1299804, at *4 (S.D.N.Y. Mar. 21, 2019) (granting summary judgment on failure to protect claim where the plaintiff failed to introduce evidence that defendants had knowledge of any previous incidents of violence between the plaintiff and another inmate or of any specific threats the plaintiff faced); Morgan v. Dzurenda, No. 14-CV-966, 2017 WL 1217092, at *5-6 (D. Conn. Mar. 31, 2017) (granting summary judgment on failure to protect claim where the plaintiff failed to introduce evidence of the prison official's knowledge of threats another inmate made to the plaintiff); Murray v. Goord, 668 F. Supp. 2d 344, 358-59 (N.D.N.Y. 2009) (granting summary judgment on failure to protect claim where the plaintiff was attacked by another inmate after being placed in cell with that inmate failed to establish that the defendant officials who placed him in the cell were actually aware of any risk of harm to the plaintiff); Shell v. Brun, 585 F. Supp. 2d 465, 470 (W.D.N.Y. 2008) (granting summary judgment on failure to protect claim where the plaintiff had expressed concern to the defendant officials about being transferred back to a maximum-security prison in which he had previously been assaulted, but failed to introduce evidence that the officials knew or were on notice of an actual and specific threat to the plaintiff); Torres v. Mazzuca, 246 F. Supp. 2d 334, 339 (S.D.N.Y. 2003) (dismissing failure to protect claim where there the plaintiff failed to allege "facts that show [the defendant] . . . had knowledge of, or reason to have knowledge of, any danger to [the plaintiff] prior to the [i]ncident that could place particular responsibility on [the defendant] for protecting [the plaintiff] from the [i]ncident").
Accordingly, Defendants are entitled to summary judgment on Plaintiff's failure to protect claim.
6. Qualified Immunity
Finally, Defendants argue that the individual Defendants are entitled to qualified immunity because no reasonable jury could find that it was not objectively reasonable for the Defendants to believe their actions did not violate a clearly established right. (Defs.' Mem. 13- 15). "The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citation and quotation marks omitted). Because qualified immunity is "an affirmative defense [that] . . . reflects an immunity from suit rather than a mere defense to liability[,] . . . it is appropriate to decide the issue of qualified immunity, when raised, at an early stage of the litigation, such as when deciding a pre-answer motion to dismiss." Betts v. Shearman, No. 12-CV-3195, 2013 WL 311124, at *4 (S.D.N.Y. Jan. 24, 2013) (italics, citations, and quotation marks omitted), aff'd, 751 F.3d 78 (2d Cir. 2014). In determining whether a right is clearly established, the "inquiry turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken." Pearson, 555 U.S. at 244 (citation and quotation marks omitted). "In the Second Circuit, a right is clearly established if (1) the law is defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has recognized the right, and (3) a reasonable defendant would have understood from the existing law that his conduct was unlawful." Schubert v. City of Rye, 775 F. Supp. 2d 689, 702 (S.D.N.Y. 2011) (citation and quotation marks omitted).
Here, Plaintiff alleges that Defendants violated his clearly established constitutional right under the Eighth Amendment by acting with deliberate indifference to his safety in failing to protect him from harm from another inmate. Defendants argue they are entitled to qualified immunity because they called a Code 1, instructed the inmates to break up the fight, and that these actions were objectively reasonable under the circumstances. However, "[d]ismissal on the basis of a qualified immunity defense is not appropriate . . . where there are facts in dispute that are material to a determination of reasonableness." Rosen, 667 F. Supp. 2d at 360 (citing Thomas v. Roach, 165 F.3d 137, 143-45 (2d Cir. 1999); Lennon v. Miller, 66 F.3d 416, 421 (2d Cir. 1995)). "As discussed above, there are too many unresolved factual disputes for the Court to determine that Defendants have satisfied their burden of proving" that their actions "were objectively reasonable" in not preventing or breaking up the fight between Plaintiff and Gaillard. Rosen, 667 F. Supp. 2d at 362-63; see also Jean-Laurent, 540 F. Supp. 2d at 514-15 (declining to grant defendant prison officials qualified immunity where material issues of fact remained regarding the reasonableness of a strip search, the amount of force used in an excessive force incident, and the officials' knowledge of unconstitutional conduct). Therefore, the Court declines to grant Defendants qualified immunity at this stage.
III. Conclusion
For the foregoing reasons, the Court grants Defendants' Motion with respect to Plaintiff's failure to protect claim, and denies Defendants' Motion with respect to Plaintiff's failure to intervene claim. The Clerk of Court is respectfully directed to terminate the pending Motion. (Dkt. No. 54.) The Court will hold a Status Conference on November 7, 2019 at 3:00 p.m. SO ORDERED. Dated: September 23, 2019
White Plains, New York
/s/_________
KENNETH M. KARAS
UNITED STATES DISTRICT JUDGE