Opinion
19-CV-3885 (MKV) (OTW)
08-27-2021
JEFFREY HANDY, Plaintiff, v. CITY OF NEW YORK and CORRECTIONAL OFFICER DAVID ALVARADO, Defendants.
To the Honorable MARY KAY VYSKOCIL, United States District Judge:
REPORT & RECOMMENDATION
ONA T. WANG, United States Magistrate Judge:
Plaintiff Jeffrey Handy, proceeding pro se, brings this action under 42 U.S.C. § 1983 against the City of New York (the “City”) and New York City Department of Correction (“NYC DOC”) Officer David Alvarado (“Alvarado, ” and together with the City, “Defendants”). Plaintiff alleges violations of his constitutional rights arising from Alvarado's spraying of a chemical agent in his proximity while he was in pretrial detention at the Vernon C. Bain Center. Defendants move for summary judgment on all claims brought by Plaintiff. The motion is unopposed. For the reasons stated below, I recommend that the motion be GRANTED.
The following facts are drawn from the parties' pleadings and submissions, including Defendants' Local Civil Rule 56.1 Statement (“56.1”) and supporting evidence, as well as Plaintiff's verified first amended complaint. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (“A verified complaint is to be treated as an affidavit for summary judgment purposes, and therefore will be considered in determining whether material issues of fact exist, provided that it meets the other requirements for an affidavit under Rule 56[c].”), abrogated on other grounds by Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020). The facts are undisputed except where otherwise noted. I have drawn all reasonable inferences in favor of Plaintiff, as the nonmovant. See Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011).
On the afternoon of October 10, 2017, at the Vernon C. Bain Center (“VCBC”), a fight broke out between two inmates in the dayroom area of housing area 1AB. 56.1 ¶ 1; Kalmbach Decl., Ex. A (Handy Dep.) at 15:06-12. At the time, there were at least 16 other inmates in the room and two correction officers, including Alvarado. 56.1 ¶ 3. Alvarado was equipped with a canister of “OC Spray, ” which is a “chemical irritant akin to pepper spray.” Id. ¶ 4; McNair v. Ponte, No. 17-CV-2976 (AT) (GWG), 2020 WL 3402815, at *1 (S.D.N.Y. June 18, 2020). When the fight started, Alvarado rose from his chair, removed his canister of OC spray, and yelled at the fighting inmates for about five seconds. 56.1 ¶¶ 4-5. Alvarado deployed a two-second burst of OC spray in the direction of the two inmates, who then stopped fighting. Id. ¶¶ 6, 8. At the time Alvarado discharged the spray, Plaintiff was standing behind and to the right of the fighting inmates; Plaintiff claims the spray hit his face. Kalmbach Decl., Ex. B (Video 1) at 00:15-00:16.
Plaintiff alleges that Alvarado counted to three before administering the pepper spray but “fail[ed] to provide a verbal command.” FAC ¶ 1. While the surveillance footage provided by Defendants has no audio, Alvarado is clearly shown to be yelling. Kalmbach Decl., Ex. C (Video 2) at 00:07-00:12.
As illustrated by the video footage, before the fight began, Plaintiff was standing at the far right of the dayroom. Ex. B at 00:00-00:02; 56.1 ¶ 2. Plaintiff has identified himself as the individual standing to the left of the television, wearing a long-sleeve white shirt. 56.1 ¶ 2. Plaintiff exited the dayroom and entered the dorm-side of housing area 1AB. Ex. B at 00:03-00:05. He is shown returning to the far right of the dayroom after the fight began, about two seconds before the spray was administered. Ex. B at 00:12-00:15. Plaintiff then returned to the dorm-side of 1AB where he is shown, among other things, standing with others, changing, and wrapping a shirt around his face. He re-entered the dayroom about three minutes after the spray was administered. Id. at 03:00.
Approximately four-and-a-half minutes later, Plaintiff fell to the floor of the dayroom. 56.1 ¶ 9. Alvarado approached and stood next to Plaintiff, who remained lying on the floor. Id. ¶ 10. Alvarado reached for Plaintiff's arm, though Plaintiff pulled away and pushed himself up onto his side. Id. ¶ 11; Ex. B at 5:20-5:27; Ex. C at 5:17-5:24. While Plaintiff remained on the floor, several other inmates were in the dayroom and one repeatedly threw chairs. 56.1 ¶ 12. Approximately two minutes after Plaintiff fell to the floor, Plaintiff was assisted out of the dayroom by other inmates. Id. ¶ 13. Later that day, Plaintiff was treated at the facility's medical clinic, where records show he complained of “wheezing and difficulty breathing” but denied other symptoms, such as headache, dizziness, visual disturbances, nausea, and vomiting. Id. ¶ 14. He was treated for chemical exposure and asthma exacerbation and then released. Id. ¶ 15; Ex. Kalmbach Decl., Ex. D (Medical Records), at ¶ 000167-68. Records from an optometry appointment on November 22, 2017 reflect that Plaintiff's “eyes stayed red” for one week following the October 10th incident but then “cleared, ” and that Plaintiff showed “no signs of chemical injury.” Ex. D at ¶ 000129. At the November 22nd visit, Plaintiff was diagnosed with “hypermetropia, bilateral” (i.e., far-sightedness) and a “regular astigmatism, bilateral.” Id.
While Plaintiff alleges that, upon being sprayed, he “began to choke and immediately vomited blood, and fell to the floor, ” FAC ¶ 2, the surveillance footage contradicts this timeline, as further detailed in the above footnote. See supra note 3; Ex. B at 00:16-04:58; Ex C. at 00:13-04:45.
Plaintiff alleges he lost consciousness while waiting for medical assistance in the hallway area. FAC ¶ 3.
It is undisputed that, at most, a few hours elapsed between Plaintiff being sprayed and being taken to the medical clinic. See Ex. A at 15:09-13 (deposition statement by Plaintiff that the incident occurred “a little late in the afternoon”); Ex. C at ¶ 000166 (medical records showing Plaintiff was seen by the medical clinic by 5:30 p.m.); see also FAC ¶ 3 (alleging he was “eventually” taken to “medical” on October 10, 2017).
Plaintiff alleges in the FAC that his eyes were blood-shot for at least 20 days and that he, for an unspecified period, experienced blurry vision in both eyes, loss of vision in his right eye, extreme pain and headaches, and significant mental and physical stress. FAC ¶ 4. He alleges he has to wear glasses due to damage to his eyes. Id. ¶ 5.
II. Procedural History
On April 29, 2019, Plaintiff, proceeding pro se and in forma pauperis, filed this action against the City, NYC DOC, and an unnamed “DOC Officer” pursuant to 42 U.S.C § 1983. Claims against NYC DOC were subsequently dismissed sua sponte. (ECF 7). On June 25, 2019 the case was referred to me for general pretrial matters and dispositive motions. (ECF 9). After the City identified the unnamed officer as David Alvarado, Plaintiff filed the operative First Amended Complaint, naming the City and Alvarado as defendants. (ECF 13, 16). The City filed an Answer on August 30, 2019, and Alvarado filed an Answer on February 10, 2020 (ECF 15, 29).
Following an Initial Pretrial Conference on January 9, 2020 and submission of an updated Proposed Case Management Plan on February 27, 2020, I set a discovery deadline of June 29, 2020. (ECF 25, 30-32). The discovery deadline was extended to August 28, 2020 due to the COVID-19 pandemic, and extended again to October 27, 2021 so that Plaintiff could review surveillance footage before his deposition and the conclusion of discovery. (ECF 35, 43-49). On October 27, 2020, Defendants requested leave to file a motion for summary judgment, notwithstanding that Plaintiff had not responded to Defendants' document requests and interrogatories or executed an authorization for medical records related to additional treatment mentioned by Plaintiff during his deposition. (ECF 52). I ordered Defendants to meet and confer with Plaintiff and submit a joint proposed briefing schedule, which I so ordered on November 17, 2020. (ECF 55).
Defendants filed and served their motion for summary judgment on November 11, 2020. (ECF 57-62). The motion included a “Notice to Pro Se Litigant” (“Notice”), as required by Local Civil Rule 56.2; the Notice, inter alia, warned Plaintiff that his claims may be dismissed without trial if he did not respond by filing sworn affidavits and other papers in compliance with Federal Rule of Civil Procedure 56 and Local Civil Rule 56.1 (both rules were attached to the Notice). (ECF 61). Plaintiff failed to respond by his January 12, 2021 opposition deadline, instead submitting a letter dated January 2, 2021 inquiring as to the status of the case, as well as a letter dated January 25, 2021 stating that he had moved to Five Points Correctional Facility (“Five Points”). (ECF 63, 66). On January 28, 2021, I sua sponte extended the deadline to March 31, 2021 and ordered Defendants to mail filings related to Defendants' motion for summary judgment to Plaintiff. (ECF 65). Defendants served Plaintiff at Five Points and filed an affidavit of service, an email with UPS tracking information, and a proof of delivery notice. (ECF 67).
By letter received on February 25, 2021, Plaintiff requested pro bono counsel. (ECF 68). On April 7, 2021, I denied Plaintiff's request without prejudice, with permission to renew his request if his claims survive Defendants' summary judgment motion. I again sua sponte extended Plaintiff's opposition deadline to May 21, 2021, directed Plaintiff to refer to the Notice, and warned Plaintiff that “[f]ailure to file an opposition will result in the Court considering Defendants' motion for summary judgment to be unopposed and may result in dismissal of the action.” (ECF 69). I directed Defendants to re-mail their summary judgment papers to Plaintiff, and they subsequently filed an affidavit of service and notice of delivery reflecting service on Plaintiff at Five Points. (ECF 69, 72, 73). The New York State Inmate Lookup website confirms that Plaintiff remains incarcerated at Five Points, where he has been served with Defendants' summary judgment motion and related orders. To date, Plaintiff has failed to file any opposition to Defendants' motion for summary judgment, and Defendants ask the District Court to grant their summary judgment motion and dismiss Plaintiff's claims as abandoned. (ECF 64, 73).
III. Discussion
A. Legal Standard
Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate when the record shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Fay v. Oxford Health Plan, 287 F.3d 96, 103 (2d Cir. 2002). The moving party has an initial burden “to demonstrate that no genuine issue respecting any material fact exists.” Gallo v. Prudential Residential Servs., Ltd. P'Ship, 22 F.3d 1219, 1223 (2d Cir. 1994). “Where the moving party demonstrates the absence of a genuine issue of material fact, the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (internal citations omitted). “There is no issue of material fact where the facts are irrelevant to the disposition of the matter.” See Chartis Seguros Mexico, S.A. de C. V. v. HLI Rail & Rigging, LLC, 967 F.Supp.2d 756, 761 (S.D.N.Y. 2013). An issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248.
In deciding a summary judgment motion, a court must “view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the non-moving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (internal citations omitted). Courts may not assess credibility nor may they decide between conflicting versions of events, because those matters are reserved for the jury. Jeffreys v. City of New York, 426 F.3d 549, 553-54 (2d Cir. 2005). However, “[t]he mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252. The non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts, ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and “may not rely on conclusory allegations or unsubstantiated speculation.” Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir.2001) (internal citations omitted).
Pro se litigants are afforded “special solicitude” on motions for summary judgment. Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988). Courts read the pleadings, briefs, and opposition papers of pro se litigants liberally and construe them to raise the strongest arguments they suggest. McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999). Still, “pro se status does not exempt a party from compliance with relevant rules of procedural and substantive law.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal citations omitted).
When a motion for summary judgment is unopposed, courts may not grant the motion “without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial, ” and in doing so “may not rely solely on the statement of undisputed facts contained in the moving party's Rule 56.1 statement.” Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). To deem a fact undisputed, a court “must be satisfied that the citation to evidence in the record supports the assertion.” Id. A court may also “rely on other evidence in the record even if uncited.” Jackson v. Federal Exp., 766 F.3d 189, 198 (2d Cir. 2014). Ultimately, a court may grant an unopposed motion for summary judgment against a pro se plaintiff if: “(1) the plaintiff has received adequate notice that failure to file any opposition may result in dismissal of the case; and (2) the [c]ourt is satisfied that the facts as to which there is no genuine dispute show that the moving party is entitled to judgment as a matter of law.” McNair, 2020 WL 3402815, at *3 (internal citations omitted).
Plaintiff's FAC does not specify the bases for his claims, whereas Plaintiff's original complaint states that he is pursuing claims under 42 U.S.C. § 1983 for “denial of medical treatment, due process.” (ECF 1 at 5). Defendants interpret the FAC as asserting claims under 42 U.S.C. § 1983 for excessive force and deliberate indifference to a detainee's medical needs in violation of the Due Process Clause of the Fourteenth Amendment. I agree with this interpretation. However, to the extent the FAC can be interpreted to also state claims for deliberate indifference to conditions of confinement arising from Alvarado's use of pepper spray, that claim fails for the same reasons as Plaintiff's excessive force claim, i.e., because Plaintiff's exposure to pepper spray was at most negligent or accidental. McArdle v. Ponte, No. 17-CV-2806 (WHP), 2018 WL 5045337, at *4-5 (S.D.N.Y. Oct. 17, 2018); see infra Section III.B. Additionally, to the extent that the FAC can be read to state claims under New York law, I recommend declining to assume supplemental jurisdiction over any such claims. See infra Section III.E.
I construe the FAC to allege that Alvarado's use of pepper spray amounts to excessive force. 42 U.S.C. § 1983 imposes liability on individuals who, while acting under color of state law, deprive a plaintiff of a federal right. See Gomez v. Toledo, 446 U.S. 635, 640 (1980). “A pretrial detainee who is subjected to excessive force may bring a claim under § 1983 .” Cunningham v. Rodriguez, No. 01-CV-1123 (DC), 2002 WL 31654960, at *4 (S.D.N.Y. Nov. 22, 2002). Because the Eight Amendment's protection from cruel and unusual punishment does not apply until after conviction and sentence, “the 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 (2d Cir. 1999); see Virella v. Pozzi, No. 05-CV-10460 (RWS), 2006 WL 2707394, at *3 (S.D.N.Y. Sept. 20, 2006) (“The Second Circuit applies the same standard to excessive force claims brought under the Fourteenth Amendment as under the Eighth Amendment.”).
Plaintiff's original complaint and Defendants' motion papers suggest that he was a pretrial detainee at the time of the October 10, 2017 incident. (ECF 1, 60). Consistent with this suggestion, the New York State inmate lookup website indicates that Plaintiff was originally received into New York State Department of Corrections custody, following a felony conviction, on January 9, 2018. Regardless, I need not inquire further into Plaintiff's status on October 10, 2017 as Plaintiff's claims cannot survive even under the standards applicable to pretrial detainees, which are the same or more forgiving than those applicable to convicted prisoners. See, e.g., Smith v. City of New York, No. 18-CV-33 (JPO), 2020 WL 1689752, at *3 n.5 (S.D.N.Y. Apr. 6, 2020).
The central concern is “whether the government action was rationally related to a legitimate government objective.” Edrei v. Maguire, 892 F.3d 525, 536 (2d Cir. 2018). “While liability for reckless use of force remains an open question in this Circuit, ‘liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.'” McArdle, 2018 WL 5045337, at *4 (quoting Kingsley v. Hendrickson, 576 U.S. 389, 396 (2015)). Plaintiff's allegations must demonstrate that “the force purposely or knowingly used against him was objectively unreasonable.” Kingsley, 576 U.S. at 397. As relevant here, “wide ranging deference must be accorded to the actions of prison officials in responding to an inmate confrontation.” McArdle, 2018 WL 5045337, at *4 (internal citations omitted).
Contextual factors bearing on the objective reasonableness of the force include “the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.” McArdle, 2018 WL 5045337, at *5 (quoting Edrei, 892 F.3d at 534). “These non-exhaustive considerations ‘inform the ultimate Fourteenth Amendment inquiry: whether the governmental action was rationally related to a legitimate governmental objective.'” Holmes v. City of New York, No. 17-CV-3874 (WHP), 2018 WL 4211311, at *5 (S.D.N.Y. Sept. 4, 2018) (quoting Edrei, 892 F.3d at 536).
Courts in this District have repeatedly found that “the secondhand inhalation of pepper spray by persons who were not the intended targets of the discharge does not typically give rise to a constitutional claim.” Gutierrez v. City of New York, No. 13-CV-3502, 2015 WL 5559498, at *8 (S.D.N.Y. Sept. 21, 2015) (collecting cases); see McNair, 2020 WL 3402815 at *4 (granting summary judgment for defendants where “it [was] undisputed that [plaintiff] was not the intended subject of [defendant-officer's] use of the spray and any contact the spray had with [plaintiff] was accidental”); McArdle, 2018 WL 5045337, at *4 (dismissing claim where plaintiff's allegations that he was an “innocent bystander in the vicinity where pepper spray was deployed” to “de-escalate prisoner conflicts . . . suggest that his exposure to pepper spray, while unfortunate, was at most negligent or accidental. Those allegations are insufficient as a matter of law.”); Holmes, 2018 WL 4211311, at *5 (dismissing claim where plaintiff conceded that the spray “was intended for other inmates” and therefore that “his exposure to chemical spray was accidental or negligent”); Vargas v. New York City Dep't of Corr., No. 17-CV-2544 (JGK), 2018 WL 3392873, at *3 (S.D.N.Y. July 12, 2018) (dismissing claim where plaintiff alleged that that he was sprayed in the face when the officer-defendant attempted to stop a fight between other inmates because the officer's conduct was “[a]t most” negligent).
“Where courts have allowed secondhand pepper spray inhalation claims to go forward, exacerbating circumstances existed, including the presence of young children and conflicting factual accounts, ” which are not present here. Gutierrez, 2015 WL 5559498, at *8 (citing Rivers v. O'Brien, 83 F.Supp.2d 328, 337 (N.D.N.Y.2000)).
Here, it is undisputed that the two fighting inmates, not Plaintiff, were the intended targets of Alvarado's use of spray, and any contact the spray had with Plaintiff was accidental. Moreover, the amount of force used by Alvarado was objectively reasonable because the surveillance footage shows that Alvarado, while in a room with one other officer and more than a dozen inmates, was attempting to stop a fight between inmates-a legitimate governmental objective for a NYC DOC officer-and used only a two-second burst of spray to quell the altercation. See Vargas, 2018 WL 3392873, at *3 (S.D.N.Y. July 12, 2018). Because Plaintiff's excessive force claim fails as a matter of law and Plaintiff received adequate notice that failure to file an opposition could result in dismissal of his case, summary judgment is appropriate as to the excessive force claim.
C. Deliberate Indifference to Serious Medical Needs Claim
The FAC can also be construed to allege a claim of deliberate indifference to Plaintiff's medical needs after contact with the spray. To state a claim for deliberate indifference to serious medical needs under § 1983, a pretrial detainee must satisfy a two-prong test. White v. City of New York, No. 16-CV-6183, 2017 WL 3575700, at *3 (S.D.N.Y. Aug. 17, 2017). “The first requirement is objective: the alleged deprivation of adequate medical care must be sufficiently serious.” Spavone v. N.Y. State Dep't of Corr. Servs., 719 F.3d 127, 139 (2d Cir. 2013) (internal citations omitted). A medical need is “sufficiently serious” where it “contemplates a condition of urgency such as one that may produce death, degeneration, or extreme pain.” Charles v. Orange County, 925 F.3d 73, 85 (2d Cir. 2019). Further, where the basis for the claim is a temporary delay or interruption in the provision of medical treatment, the relevant inquiry is whether the “particular risk of harm faced by a [detainee] due to the challenged deprivation of care, rather than the severity of the [detainee's] underlying medical condition, considered in the abstract.” Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003).
The second prong, on the other hand, requires a court to consider the defendant's mental state. Specifically, a plaintiff must show either that “the defendant-official acted intentionally to impose the alleged condition” or that he “recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety.” Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017).
1. Exhaustion of Administrative Remedies
As an initial matter, Plaintiff's claim for deliberate indifference to his medical needs is barred for failing to exhaust his administrative remedies. Under the Prison Litigation Reform Act (“PLRA”), “[n]o action shall be brought with respect to prison conditions under . . . 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). The PLRA's exhaustion requirement “applies to all inmate suits about prison life.” Porter v. Nussle, 534 U.S. 516, 532 (2002). “Because failure to exhaust [administrative remedies] is an affirmative defense, [D]efendants bear the initial burden of establishing, by pointing to legally sufficient sources such as statutes, regulations, or grievance procedures, that a grievance process exists and applies to the underlying dispute.” Hubbs v. Suffolk Cnty. Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015) (internal citations omitted). If Defendants meet their initial burden, the burden shifts to Plaintiff to show that he properly exhausted his claims or “demonstrate that other factors-for example, threats from correction officers-rendered a nominally available procedure unavailable as a matter of fact.” Id.
NYC DOC “provides a multi-step Inmate Grievance Resolution Program (‘IGRP'), and the failure to make use of the IGRP constitutes failure to exhaust under the PLRA.” Blocker v. City of New York, No. 14-CV-7215, 2015 WL 4002588, at *2 (S.D.N.Y. July 1, 2015). The operative IGRP when Plaintiff's claim arose required inmates to exhaust the following four steps before bringing suit in federal court: (1) submit a complaint for informal resolution within ten business days of the incident; (2) if the inmate disagreed with the proposed resolution, the inmate had five business days to appeal and request a formal hearing; (3) if the inmate disagreed with the Inmate Grievance Resolution Committee's disposition, the inmate had five business days to appeal to the facility's commanding officer; and (4) if the inmate disagreed with the commanding officer's disposition, the inmate had five business days to appeal to the Central Office Review Committee, which would render a disposition within fifteen business days of receiving the appeal. IGRP § IV(D)-(J), Attachment B.
I take judicial notice of the IGRP in effect at the time of the conduct alleged in the FAC, “as courts in this [D]istrict have regularly done.” McNair, 2020 WL 3402815, at *6 n.4; see, e.g., Sanders v. City of New York, No. 16-CV-7246, 2018 WL 3117508, at *4 n.1 (S.D.N.Y. June 25, 2018) (“It is a common practice in this District to take judicial notice of the version of the IGRP in effect at the time of the events giving rise to [an inmate's] claim.”) (internal citations omitted). The applicable IGRP can be found on the NYC DOC's website. See N.Y. City Dep't of Correction, Directive 3376 (effective Sept. 10, 2012), available at https://nyc.gov/html/doc/downloads/pdf/Directive3376InmateGrievanceRequestProgram.pdf.
Here, there are neither allegations in the pleadings nor evidence in the record that Plaintiff exhausted his administrative remedies or that such remedies were not available to Plaintiff. In fact, Plaintiff specifically noted in his original verified complaint that he did not exhaust his administrative remedies. (ECF 1 at 5). Thus, because Plaintiff's failure to exhaust administrative remedies regarding his deliberate indifference claim is undisputed and Plaintiff received adequate notice that his claims might be dismissed, summary judgment is also appropriate as to Plaintiff's deliberate indifference claim.
§ IV.B.2.b (“Inmate allegations of physical or sexual assault or harassment by either staff or inmates are not subject to the IGRP process.”); see, e.g., Pizarro v. Ponte, No. 17-CV-4412 (LGS), 2019 WL 568875, at *5 (S.D.N.Y. Feb. 11, 2019) (recognizing that the IGRP exempted complaints for use of force or assault and finding that because the IGRP was not available to the NYC DOC inmate's excessive force claim, that claim was not subject to dismissal for failure to exhaust administrative remedies); cf. McNair, 2020 WL 3402815, at *5 (granting summary judgment as to the deliberate indifference claim for failure to exhaust and as to the excessive force claim on other grounds). Only Plaintiff's deliberate indifference claim is dismissed on the basis of failure to exhaust administrative remedies. Defendants do not argue that Plaintiff's excessive force claim should be dismissed for failure to exhaust administrative remedies, and the applicable IGRP explicitly exempted complaints for the use of force. IGRP
2. Merits
Because Plaintiff plainly did not exhaust his administrative remedies under the PLRA, I need not reach the merits of Plaintiff's claim of deliberate indifference to his medical needs. See, e.g., Johnson v. Barney, No. 04-CV-10204 (LBS), 2007 WL 2597666, at *2 (S.D.N.Y. Aug. 30, 2007), aff'd, 360 Fed.Appx. 199 (2d Cir. 2010). However, I briefly note that Plaintiff's claim also would fail on the merits because there is no evidence or allegation that Alvarado intentionally injured Plaintiff or that Alvarado denied or delayed his medical care. Indeed, while the FAC suggests that Plaintiff faults Alvarado for administering the spray, Plaintiff does not allege that Alvarado was even involved in his medical care. See Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.2006) (holding that personal involvement is a prerequisite to an award of damages under § 1983); McNair, 2020 WL 3402815, at *5 (granting defendants' motion for summary judgment and finding that plaintiff failed to allege the personal involvement of multiple officer-defendants, including the officer who administered pepper spray, with respect to plaintiff's alleged denial of medical care); Vargas, 2018 WL 3392873, at *4 (S.D.N.Y. July 12, 2018) (dismissing deliberate indifference claim against officer that sprayed inmate where “plaintiff ha[d] not alleged any facts in his Complaint to suggest that [the officer] was involved at all in his medical care or lack of medical care”). Accordingly, summary judgment as to Plaintiff's deliberate indifference claim is also appropriate on this basis.
See FAC ¶ 3 (alleging that after Plaintiff left the dayroom area, he “lost consciousness when the medical staff failed to arrive” and that Plaintiff was “eventually” taken by unnamed “officers” to “medical”); Ex. B at 05:00-07:00 (showing that Alvarado checked on and remained close to Plaintiff before he was carried out of the dayroom); Ex. D at ¶ 000166 (showing that Plaintiff was seen by the medical clinic by 5:30 p.m.).
Having concluded that Alvarado did not violate Plaintiff's constitutional rights-and that Plaintiff did not exhaust his deliberate indifferent claim-I need not reach the question of qualified immunity. See, e.g., Farrell, 449 F.3d at 499 (“Because we have found no cognizable violation of [plaintiff's] rights in this case, we need not reach the question of qualified immunity.”); Johnson, 2007 WL 2597666, at *2 (“Because plaintiff has failed to exhaust his administrative remedies under the PLSA, the Court need not reach the issue of whether [officer-defendant's] conduct constituted a Constitutional violation, or the issue of qualified immunity.”); Stephenson v. Rosa, No. 03-CV-8503 (LAP), 2006 WL 464081, at *3 (S.D.N.Y. Feb. 24, 2006) (“[T]his Court need not decide the issue of qualified immunity as Defendants are entitled to judgment on the statute of limitations and the merits, as outlined above.”).
D. Claims Against the City
Even if Plaintiff had colorable § 1983 claims against Alvarado, which he does not, Plaintiff cannot sustain claims against the City. A municipality may not be held liable under § 1983 for an employee's misconduct under a respondeat superior theory. Monell v. Dep't. of Soc. Servs., 436 U.S. 658, 691 (1978). Instead, a plaintiff must plead and prove “(1) an official policy or custom that (2) cause[d] the plaintiff to be subjected to (3) denial of a constitutional right.” Torraco v. Port Auth. of N.Y. & N.J., 615 F.3d 129, 140 (2d Cir. 2010) (internal citations omitted).
Municipal liability must arise from the “execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” Monell, 436 U.S. at 694. A plaintiff may establish such a policy or custom by:
(1) a formal policy officially endorsed by the municipality; (2) actions or decisions made by municipal officials with decision-making authority; (3) a practice so persistent and widespread that it constitutes a custom of which policymakers must have been aware; or (4) a failure by policymakers to properly train or supervise their subordinates, such that the policymakers exercised deliberate indifference to the rights of the plaintiff and others encountering those subordinates.Roundtree v. City of New York, No. 15-CV-8198 (WHP), 2018 WL 1586473, at *13 (S.D.N.Y. Mar. 28, 2018) (quoting McLennon v. City of New York, 171 F.Supp.3d 69, 94 (E.D.N.Y. 2016)). “[W]holly conclusory” accusations originating from “isolated incidents that affected [the plaintiff]” are insufficient to support a claim. Roundtree, 2018 WL 1586473, at *13; see, e.g., Santiago v. City of Yonkers, No. 13-CV-1077 (TPG), 2015 WL 6914799, at *4 (S.D.N.Y. Oct. 30, 2015) (“A single incident of unconstitutional activity is insufficient to infer a custom, policy or practice as required by Monell to impose municipal liability.”).
Here, although Plaintiff names the City as a defendant, he makes no allegations whatsoever regarding the City and does not allege any institutional policy or practice to bolster his claims; instead, he only supports his claims with reference to the October 10, 2017 incident. Thus, Plaintiff's claims against the City fail as a matter of law and Defendants' motion for summary judgment as to any § 1983 claims against the City should be granted.See, e.g., Murray v. City of New York, No. 18-CV-6978 (AT), 2020 WL 3871456, at *4 (S.D.N.Y. July 9, 2020) (granting defendants' unopposed motion for summary judgment and finding that plaintiff “had not established a claim against the City” where he “fail[ed] to plead the existence of a municipal policy or custom pursuant to which the [i]ndividual [d]efendants allegedly acted, or that such a policy or custom caused a violation of the Plaintiff's constitutional rights”).
E. State Law Claims
The District Court has original jurisdiction over this action by virtue of Plaintiff's federal claims, 28 U.S.C. § 1331, and its authority to decide any state law claims is premised on its supplemental jurisdiction pursuant to 28 U.S.C. § 1367. A district court may decline to exercise supplemental jurisdiction over a claim if it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Further, “in the usual case in which all federal law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine-judicial economy, convenience, fairness, and comity-will point toward declining to exercise jurisdiction over the remaining state-law claims.” Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003) (quoting Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n.7 (1988)). Accordingly, district courts commonly refuse to exercise supplemental jurisdiction after dismissing all federal claims on a motion for summary judgment. See, e.g., Barnes v. City of New York, 338 F.Supp.3d 317, 325 (S.D.N.Y. 2018); see also Matican v. City of New York, 524 F.3d 151, 155 (2d Cir. 2008) (affirming district court's grant of summary judgment and emphasizing that “if [plaintiff] has no valid claim under § 1983 against any defendant, it is within the district court's discretion to decline to exercise supplemental jurisdiction over the pendent state-law claims”).
Here, Plaintiff does not explicitly bring any state law claims. However, construed liberally, Plaintiff's complaint may assert state law tort claims, such as for assault and battery. Still, because I have recommended dismissal of Plaintiff's § 1983 claims, i.e., the federal claims over which the District Court has original jurisdiction, I recommend declining to exercise supplemental jurisdiction over any state law claims.
Even if the District Court is inclined to exercise jurisdiction over Plaintiff's potential state court claims, the District Court should dismiss them as time-barred. Under New York General Municipal Law, a tort action against a city or its employees, including claims for assault and battery against correction officers, must be “commenced within one year and ninety days after the happening of the event upon which the claim is based.” N.Y. Gen. Mun. L. § 50-i(1)(c); see, e.g., Mangum v. City of New York, No. 15-CV-8810 (PAE), 2016 WL 4619104, at *10 (S.D.N.Y. Sept. 2, 2016) (exercising jurisdiction over assault and battery claims because they were “so easily held deficient” as untimely under § 50-i); Perez v. Johnson, No. 07-CV-3761 (NRB), 2008 WL 2876546, at *3 (S.D.N.Y. July 23, 2008) (explaining that “[e]ven if we were to exercise jurisdiction over plaintiff's state law claims, we would find them time-barred” under § 50-i). Because all of Plaintiff's claims are based on the events of October 10, 2017, Plaintiff was required to bring any personal injury claims by January 8, 2018, but he did not initiate suit until April 29, 2019.
IV. Conclusion
For the foregoing reasons, I recommend that Defendants' motion for summary judgment be GRANTED. (ECF 57). The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to the pro se Plaintiff.
V. OBJECTIONS TO THIS REPORT AND RECOMMENDATION
In accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See Fed. R. Civ. P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Objections, and any responses to objections, shall be addressed to the Hon. Mary Kay Vyskocil. Any requests for an extension of time for filing objections must be directed to Judge Vyskocil. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983). If Plaintiff wishes to review, but does not have access to, cases cited herein that are reported on Westlaw, he should request copies from Defendants. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009).