Sanchez v. Nassau CountySanchez v. Nassau County
- Reporters:
- ,
- Before:
- Kiyo A. Matsumoto
KIYO A. MATSUMOTO, United States District Judge:
Plaintiff Pierre Sanchez (“Plaintiff”), acting pro se, commenced the instant
Presently before the Court are Defendant Ryan’s motion for summary judgment and Nassau County Defendants’ motion for summary judgment. (ECF Nos. 215, 216.) For the reasons set forth below, the Court finds as follows:
- Defendant Ryan’s motion for summary judgment is GRANTED as to the failure to intervene claim against Defendant Ryan and is DENIED as to the failure to protect claim against Defendant Ryan.
- Nassau County Defendants’ motion for summary judgment is GRANTED as to the failure to protect claim against Defendant James, but is DENIED as to the failure to protect claim against Defendant
Hollingshead. - Nassau County Defendants’ motion for summary judgment is DENIED as to the failure to intervene claims against Defendant James and Defendant Hollingshead.
- Nassau County Defendants’ motion for summary judgment is DENIED as to the supervisory liability claim against Defendant Sposato.
- Nassau County Defendants’ motion for summary judgment is DENIED as to the municipal liability claim against the County.
Accordingly, the remaining claims are Plaintiff’s failure to protect claims against Defendants Ryan and Hollingshead; his failure to intervene claims against Defendants James and Hollingshead; his supervisory liability claim against Defendant Sposato; and his municipal liability claim against the County.
BACKGROUND
The following facts are drawn from the parties’ submissions in connection with this motion, including Defendants’ Rule 56.1 Statements of Facts, Plaintiff’s Counter 56.1 Statements, and Defendants’ Reply 56.1 Statements.2 Upon consideration of a motion for summary judgment, the Court must construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 n.1 (2d Cir. 2005).
The Court initially notes that, in their responses to Plaintiff’s Counter 56.1 Statement, neither Nassau County Defendants nor Defendant Ryan submitted Reply Rule 56.1 Statements that comply with
In their submissions, Nassau County Defendants dispute a significant number of Plaintiff’s opposing factual statements in his Counter 56.1 Statement, but Defendants repeatedly fail to offer or cite to admissible evidence to support their opposition, in violation of
In his Reply 56.1 Statement, Defendant Ryan also repeatedly disputes Plaintiff’s proffered facts without citing to admissible record evidence, including by stating only that “Plaintiff has merely regurgitated his deposition testimony as a material fact not in dispute.” (See, e.g., ECF No. 194, Def. Ryan Reply 56.1 at ¶¶ 187-88; 195-203.)
Accordingly, because Defendants are the moving parties, to the extent that Plaintiff’s Counter 56.1 Statement establishes facts in dispute which the Defendants oppose but do not cite to record evidence in support of their opposition, those facts will be considered in the light most favorable to Plaintiff, unless the Court has identified record evidence supporting a contrary view. See
Unless otherwise noted, the following facts are undisputed, or the opposing party has not proffered evidence in the record to dispute them. Disputes are noted where the parties have submitted admissible evidence to establish a factual dispute.
I. Factual Background
A. New York State Corrections Officer Training Materials
The New York State Commission of Correction has model training materials (“Model Instructions”) for corrections officers, which provide sample lesson plans for corrections officers’ training. (ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 133; ECF No. 196, County Defs Reply 56.1 at ¶ 133.) The Model Instructions, inter alia, state the following:
STAFF SUPERVISE INMATES.
If you don’t monitor and manage inmates, you are not properly supervising inmates therefor [sic] you are not doing your job!
All too often, inmate escapes, assaults and disturbances have occurred due to lack of proper supervision.3
B. Inmate Handbook at NCCC
At NCCC, the “Inmate Handbook” describes the administrative procedure for filing a complaint, or grievance, concerning the facility. (Pl. Resp. County Defs. 56.1 at ¶ 344; ECF No. 196, County Defs. Reply 56.1 at ¶ 344.) The Inmate Handbook states that a detainee “must file a grievance within five (5) days of the date of the act or occurrence leading to the grievance.” (Pl. Resp. County Defs. 56.1 at ¶ 345; ECF No. 196, County Defs. Reply 56.1 at ¶ 345.) Nassau County Defendants assert that “every inmate gets [a handbook],” but there is no evidence in the record as to how the handbook is disseminated to inmates. (ECF No. 188-43, Exhibit 54 (“Ex. 54”) at 96:19-97:08.)
C. Policies in Nassau County and at NCCC
From 2011-2018, Defendant Sposato was the Sheriff of Nassau County and had responsibility for NCCC.5 (ECF No. 184-1, County Defs. 56.1 at ¶ 8; ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 8; ECF No. 188-42, Ex. 54 at 38:21-38:23, 39:09-39:16). As Sheriff, Defendant Sposato rarely changed NCCC policies or created new policies.6 (ECF No. 188-43, Ex. 54 at 51:14-52:01.)
The parties dispute whether there are policies to deter assaults at NCCC, including whether there was any formal written policy on investigating assaults on detainees and whether NCCC recorded or preserved video footage after assaults. (ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶¶ 181-82; ECF No. 196, County Defs. Reply 56.1 at ¶¶ 181-82.)
i. Training
During Defendant Sposato’s tenure, newly hired corrections officers at NCCC attended a training academy with classroom coursework on various subjects. (ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 152; ECF No. 196, County Defs. Reply 56.1 at ¶ 152.) The parties dispute whether NCCC corrections officers received training regarding detainee supervision techniques or NCCC’s policies for detainee supervision.8 (ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 154; ECF No. 196, County Defs. Reply 56.1 at ¶ 154; ECF No. 42, Exhibit 53 (“Ex. 53”) at 63:15-63:22.) After graduating, NCCC corrections officers attended annual “in service” trainings. (ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 156; ECF No. 196, County Defs. Reply 56.1 at ¶ 156.) The parties dispute whether there were any “in service” trainings on preventing and responding to detainee assaults. (ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 157; ECF No. 196, County Defs. Reply 56.1 at ¶ 157.)
ii. Supervision Policies
The parties dispute whether corrections officers are required by any policies or procedures to engage in “active supervision” when detainees are not in their individual cells, e.g., when detainees are in the recreation yard. (ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶¶ 167-68; ECF No. 196, County Defs. Reply 56.1 at ¶¶ 167-68; ECF No. 42, Ex. 53 at 44:20-45:10, 54:3-54:9.) The parties dispute whether the custom or procedures at NCCC permitted
D. 2007 Incident at NCCC
In 2007, Plaintiff filed a grievance that he was assaulted by corrections officers. (Def. Ryan 56.1 at ¶ 8; Pl. Resp. Def. Ryan 56.1 at ¶ 8.) Plaintiff filed a lawsuit alleging that he was assaulted by NCCC correction officers, in which he attached copies of his grievance paperwork as an exhibit. (ECF No. 47, Exhibit 188-59 (“Ex. 59”) at 26:23-27:24; Def. Ryan 56.1 at ¶ 10; Pl. Resp. Def. Ryan 56.1 at ¶ 10.) In 2009, the case settled. (ECF No. 188-56, Exhibit 9 (“Ex. 9”) at 3.)
E. 2017 Incident at NCCC
In 2017, Plaintiff was detained at NCCC from July 31, 2017 to December 27, 2017, while awaiting trial. (County Defs. 56.1 at ¶ 3; Pl. Resp. County Defs. 56.1 at ¶¶ 3, 40.) During this five-month period when Plaintiff was in custody at NCCC, Defendant Sposato was the Nassau County Sherriff overseeing NCCC and Defendants Hollingshead, James, and Ryan all worked as corrections officers at NCCC. (County Defs. 56.1 at ¶¶ 9-11; Pl. Resp. County Defs. 56.1 at ¶¶ 9-11.)
In 2017, NCCC had a computer database that held information on detainees, including their disciplinary histories. (ECF No. 196, County Defs. Reply 56.1 at ¶ 160.) The reports on each detainee in the database were called “inmate pedigrees.” (Id. at ¶ 161.) A hash mark notation in an inmate pedigree signified, informally, that a detainee had a history of assaulting corrections staff.9 Plaintiff’s inmate pedigree contained a hash mark notation on most pages.10 (ECF No. 196, County Defs. Reply
In the fall of 2017, Defendant Ryan was assigned to the E1-B housing unit, where Plaintiff was housed. (ECF No. 188-40, Exhibit 51 (“Ex. 51”) at 114:2-114:7.) Four formal complaints had been filed against Defendant Ryan in the preceding nine months-by a visitor, two inmates, and an attorney-and he was reassigned to the E1-B housing unit, without a firearm, while the complaints were being investigated. (ECF No. 196, County Defs. Reply 56.1 at ¶¶ 224-25; ECF No. 194, Def. Ryan Reply 56.1 at ¶¶ 129, 137, 143, 162, 166-68.) The Sheriff’s Department Internal Affairs Unit (“IAU”) closed each investigation after finding that the complaints were “not sustained.”11 (ECF No. 194, Def. Ryan Reply 56.1 at ¶¶ 135, 142, 160, 170.)
The parties dispute the following events. Plaintiff asserts that in late October or early November 2017, he asked Defendant Ryan if he could be assigned to a job working the food cart, which was a desirable position for detainees at NCCC. (Id. at 114:11-114:16.) Plaintiff contends that Defendant Ryan told Plaintiff that Defendant Ryan would “go check it out.” (Id.) Later that day, Defendant Ryan called Plaintiff a “snitch” while walking by Plaintiff’s cell, loudly enough for other detainees to hear. (Id. at 114:16-114:23.) Plaintiff asserts that there was a “weird silence” in his housing unit afterwards. (ECF No. 188-47, Exhibit 59 (“Ex. 59”) at 101:2-101:16.) Plaintiff asserts that, around two weeks later, Defendant Ryan called Plaintiff a “fucking snitch,” in front of multiple other detainees while they were gathered watching television, and that the other detainees moved away from Plaintiff afterwards. (Id. at 110:6-111:4.)
Defendant Ryan broadly disputes this account, including asserting that (1) he does not recall being assigned to the E1B housing units; (2) he has no recollection of having a conversation with Plaintiff in the fall of 2017; and (3) he had never heard the word “snitch” in the context of his work as a corrections officer. (ECF No. 188-48, Exhibit 60 (“Ex. 60”) at 122:6-10; 123:5-123:13; 126:13-127:3.) He also asserts that he had never used the word ‘snitch’ in the context described by Plaintiff. (Id. at 134:12-134:23.)
The parties do not dispute, however, that Defendant Ryan was aware that referring to a detainee as a “snitch” could put a detainee in danger. (ECF No. 187, Pl. Resp. Def. Ryan 56.1 at ¶ 204; ECF No. 194, Def. Ryan Reply 56.1 at ¶ 204.) The parties dispute whether Plaintiff feared for his safety prior to the incident on November 18, 2017, which occurred as follows. (ECF No. 184-1, County Defs. 56.1 at ¶ 31; 197-20, Exhibit T (“Ex. T”) at 103:18-104:5; ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 31; 197-20, Ex. T at 104:7-104:21.)
The parties dispute the size of the yard, but agree that it included a small see-through “shack” with plexiglass walls. (ECF No. 184-1, County Defs. 56.1 at ¶ 23; ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 23; County Defs. Reply 56.1 at ¶ 270.) The shack was around seven feet away from the entrance of the yard and overlooked the entire yard. (Id.) The parties dispute the extent to which Defendants Hollingshead and James could see detainees in the yard from the shack. (ECF No. 184-1, County Defs. 56.1 at ¶ 27; ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 27; ECF No. 188-43, Ex. 54 at 117:13-117:19.) From the shack, correction officers were able to intervene if they observed a threat to a detainee, and they could communicate by radio and telephone with other NCCC staff.12 (ECF No. 196, County Defs. Reply 56.1 at ¶¶ 279-80.) The parties dispute whether it was customary at NCCC for corrections officers to remain in the shack during a recreation period. (ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 281; ECF No. 196, County Defs. Reply 56.1 at ¶ 281.)
There were no metal detectors in the yard, but there was at least one camera, stationed above the door leading from the E1B housing unit. (ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 267; ECF No. 188-39, Exhibit 50 (“Ex. 50”) at 35:6-35:21.) The camera did not record the incident on November 18, 2017, and there was no video evidence of the incident. (ECF No. 196, County Defs. Reply 56.1 at ¶¶ 268-69.) The parties dispute whether the cameras were generally inoperable. (Id. at ¶¶ 267-69; see ECF No. 189-9, Exhibit 31 (“Ex. 31”) at 2.)
At some point during the recreation period, Sanchez was attacked by unknown detainees, who slashed his right cheek from his mouth to his ear and beat him on the ground. (ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶¶ 283-85; ECF No. 196, County Defs. Reply 56.1 at ¶¶ 283-85.) Plaintiff was bleeding from the cut and his clothing was bloodstained. (ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶¶ 283-85.) Afterwards, the detainees “scattered into the recreation yard.” (ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 286; ECF No. 196, County Defs. Reply 56.1 at ¶ 286.)
Defendants Hollingshead and James saw Plaintiff with a laceration on the right side of his face. (ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 32.) The parties dispute how they became aware of the laceration. Plaintiff asserts that Defendants Hollingshead and James were directly behind him in the shack when he was assaulted. (ECF
The parties agree that Defendant Hollingshead stayed with Plaintiff, while Defendant James directed the other detainees to their housing unit. (ECF No. 184-1, County Defs. 56.1 at ¶ 39; ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 295.) Plaintiff asserts that Hollingshead told him to “calm down” and that “things come full circle,” which Nassau County Defendants dispute. (ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 296; ECF No. 188-40, Ex. 51, at 90:10-91:2, 179:20-180:24.) Defendants Hollingshead and James contacted their supervisors and a medic, and allowed Plaintiff to go to the bathroom to attend to his wound. (ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶¶ 40-41.) Plaintiff was taken to the medical unit by a third officer, and then taken to the hospital via ambulance. (Id. at ¶¶ 43-44.) Plaintiff was treated at the hospital for his injury and returned to NCCC later that afternoon. (ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 55; ECF No. 197-19, Exhibit S (“Ex. S”) at 5.)
Defendants Hollingshead and James notified Sergeant Jonathan Bertin, among others, about the incident. (ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶¶ 40-41.) Sergeant Bertin was the first-floor building sergeant for the E housing unit. (ECF No. 188-46, Ex. 58 at 21:6-21:13.) Bertin supervised the officers assigned to the first floor, and conducted preliminary investigations of inmate assaults. (Id. at 21:20-22:16.) He was responsible for carrying out the preliminary investigation of Plaintiff’s assault. (Id. at 114:7-114:17.) There was no NCCC policy that Bertin knew of that described how a building sergeant should investigate an inmate assault, or secure and identify contraband when an assault involved an unknown object.13 (Id. at 121:5-121:18.)
for an investigation was learned on-the-job or through supervisor directions.14 (ECF No. 196, County Defs. Reply 56.1 at ¶ 307; ECF No. 188-46, Ex. 58 at 121:11-121:18.) There was no staff handbook that listed NCCC policies or procedures. (ECF No. 188-41, Ex. 42 at 26:06-26:07.) Corrections officers could access policies on a computer, but there was no search function on the intranet page that listed the policies. (Id. at 26:08-28:19.)
After the incident, the detainees were not searched prior to returning from the recreation yard to the housing unit. (Id. at ¶ 45.) Bertin did not ask Defendants Hollingshead or James if they had searched any detainees who were in the A-B recreation yard, or if they had searched the yard or adjoining areas after Plaintiff was attacked, or if they had identified any suspects. (ECF No. 196, County Defs. Reply 56.1 at ¶¶ 312.) Around 40 minutes after the end of the recreation period, the E1A and B blocks of the E1 housing unit were locked down. (ECF No. 186, Pl.
A: Or through supervisory direction.
(ECF No. 188-46, Ex. 58 at 121:11-121:18.) The following exchange also took place during Bertin‘s deposition:
Q: Is there a standard operating procedure or policy in place at NCCC to secure and identify contraband when there‘s been an assault on an inmate with an unknown object?
A: I don‘t know.
Q: Okay. But you, as the building sergeant, you know, for this housing block in 2018, do not recall such a policy being in place?
A: No, I don‘t recall.
(Id. at 143:16-144:1.)
Resp. County Defs. 56.1 at ¶¶ 46; ECF No. 188-56, Exhibit 58 (“Ex. 58”) at 176:9-176:17; ECF No. 189-9, Ex. 31.) Two hours later, NCCC staff searched the E1A and B blocks to locate contraband used in the assault. (ECF No. 196, County Defs. Reply 56.1 at ¶ 317; ECF No. 188-46, Ex. 58 at 194:6-194:25.) The recreation yard was also searched. (ECF No. 186, Pl. Resp. County Defs. at ¶ 50; ECF No. 197-21, Exhibit U (“Ex. U”) at 49). No weapon or contraband of any kind was found. (ECF No. ECF No. 196, County Defs. Reply 56.1 at ¶ 328; ECF No. 197-21, Exhibit U (“Ex. U”) at 49.)
Later that same day, November 18, Bertin reported the assault to the Criminal Investigation Unit (“CIU”) and the Gang Investigation Unit (“GIU”) for further investigation. (Id.; ECF No. 46, Ex. 58, 215:22-216:21.) Generally, CIU would follow up on a report within 24 hours. (ECF No. 46, Ex. 58 at 216:22-217:7.) Neither CIU nor GIU began conducting interviews about the assault within 24 hours. (Id. at 216:22-217:22.) GIU or CIU usually conducted interviews and then informed supervisory staff at NCCC as to how to proceed. (Id. at 219:20-220:3.) Because neither GIU nor CIU had begun interviews by November 19, 2017, the day after the assault, Bertin was instructed by Captain Fratto to begin a preliminary investigation. (Id. at 219:20-221:2.) Bertin investigated by (1) asking corrections officers if any detainee had provided information about the assault; and (2) making a general announcement about seeking information about the assault,
and then walking through the housing unit to see if detainees would disclose any information. (Id. at 221:21-224:3.) NCCC never identified the individuals who assaulted Plaintiff. (ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 329; County Defs. 56.1 at ¶ 329.)
F. After the November 18, 2017 incident
Plaintiff was placed in involuntary protective custody (“IPC”) after he returned from the hospital. (ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 329; ECF No. 197-21, Ex. U at 6.) On November 21, 2017, Plaintiff requested to be moved out of IPC and placed in general population and stated that the assault was a “random incident.” (ECF No. 188-23, Exhibit 27 (“Ex. 27”).) Plaintiff feared for his safety while in IPC because (1) IPC housing was populated with members of violent criminal gangs; (2) his cell was being cleaned out to remove blood when he arrived at IPC, after an assault on a detainee in that cell; (3) members of a gang who were in IPC told Sanchez that they had attacked the detainee who had previously occupied his
On November 29, 2017, CIU15 interviewed Plaintiff about the assault. (ECF No. 184-1, County Defs. 56.1 at ¶ 59; ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 59.) The parties dispute what Plaintiff told the CIU investigators. (ECF No. 184-1, County Defs. 56.1 at ¶ 59; ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 59.) Nassau County Defendants assert that Plaintiff told the investigator that he did not know who cut him and that he did not want to elaborate further, and then signed a form declining to consult with the District Attorney‘s office regarding possible criminal prosecution. (ECF No. 197-30, Exhibit DD (“Ex. DD”) at 39-40.)
Plaintiff disputes this account, and asserts that he told the CIU investigator that he “was cut and beat up right in front of two corrections officers, and they did nothing to help [him], and that [he] had a prior situation with an officer that referred to [him] as a snitch.” (ECF No. 40, Ex. 51 at 126:14-126:21.) Plaintiff also asserted that he was uncomfortable speaking to the CIU investigator because the interview took place in a room that was visible to a significant number of detainees, a concern which he told the investigator. (Id. at 121:23-122:16.) He asserts that he signed the form because he wanted to leave the room as quickly as possible. (Id. at 128:20-129:7.)
In December 2017, Plaintiff wrote letters to various members of NCCC staff, including staff in the housing unit and the warden, stating that he wanted to be transferred to Rikers Island. (ECF No. 196, County Defs. Reply 56.1 at ¶¶ 367-69; ECF No. 188-40, Ex. 51 at 208:7-211:7.) In his letters, Plaintiff stated that his request was connected to an incident with a corrections officer and to his assault, and that he would explain further once he had been moved.16 (ECF No. 196, County Defs. Reply 56.1 at ¶¶ 367-69; ECF No. 188-40, Ex. 51 at 208:7-211:7.) On December 18, 2017, Plaintiff, pro se, filed the first complaint in this action. (ECF No. 1.)
Plaintiff was transferred to Rikers Island on December 27, 2017. (County Defs. 56.1 at ¶ 5; Pl. Resp. County Defs. 56.1 at ¶ 5). After his transfer, he called 3-1-1, “spoke to two captains” at Rikers, submitted written statements about the incidents at NCCC, and wrote numerous letters documenting the incident to various parties, including a second letter to the NCCC warden.17 (ECF No. 196, County Defs. Reply 56.1 at ¶¶ 367-69; ECF No. 188-40, Ex. 51 at 214:18-215:10.)
Plaintiff was transferred back to NCCC on April 4, 2018. (ECF No. 184-1, County Defs. 56.1 at ¶ 6; ECF No. 186, Pl. Resp.
On May 18, 2018, the Sheriff‘s Department Internal Affairs Unit (“IAU”) interviewed Plaintiff about the Judge Bianco letter. (ECF No. 196, County Defs. Reply 56.1 at ¶ 382; ECF No. 189-12, Exhibit 40 (“Ex. 40”) at 2.) During the interview, Plaintiff stated that he had been assaulted on November 18, 2017, and that he believed that the assault had been provoked by corrections officers in retaliation for his 2007 lawsuit. (ECF No. 196, County Defs. Reply 56.1 at ¶ 383.) Plaintiff stated that he had not immediately reported this suspicion because corrections officers “run the jail.”19 (Id. at ¶ 385; Exhibit 63 (“Ex. 63”) at 3:35-
3:49.) Plaintiff also stated that “it wasn‘t every officer . . . it‘s like two or three, it‘s not like it was a big conspiracy.”20 (Id. at ¶ 385; Ex. 63 at 6:15-6:49.) In response to questioning from the IAU investigator as to why Plaintiff had waited to report his suspicions until he wrote the Judge Bianco letter, Plaintiff stated:
I filed a lawsuit immediately, when I went to Rikers, I told them immediately. I spoke to captains and put it in writing, all that. But I just didn‘t want to have it in the open here [at NCCC] because what are you going to do? Ask for a grievance? You know what I‘m saying, what is that going to do? I have to ask the corporal for a grievance and then they‘ll be like ‘why.’ . . . I just wanted to get moved. That‘s what I really wanted. I wanted to get the fuck out of this jail.21
(Ex. 63 at 11:20-11:46.)
On June 12, 2018, Plaintiff was transferred to Fishkill Correctional Facility. (ECF No. 196, County Defs. Reply 56.1 at ¶ 388.) On August 29, 2019, Plaintiff was released from custody. (Id. at 389.)
G. Other Assault Incidents at NCCC
From 1999-2018, at least 11 detainees filed complaints about being assaulted while in custody at NCCC, either by other detainees
or by corrections officers.22 (See ECF No. 186, Pl. Resp. County Defs. 56.1
attack other detainees.23 Additionally, criminal gangs operated inside NCCC in 2017, and Defendant James was aware of gang violence incidents in the facility.24
II. Procedural History
On December 18, 2017, Plaintiff, pro se, filed the original complaint in this action against Defendant Nassau County and against NCCC. (ECF No. 1.) The action was assigned to Judge Bianco. On May 2, 2018, Plaintiff filed an amended complaint
because he “sent the wrong front cover.” (ECF No. 19.) On May 30, 2018, Judge Bianco granted Plaintiff’s motion to amend and ordered the Nassau County Attorney and the United States Marshals Service to help ascertain the names and identities of John Does #1 and #2, named in the second amended complaint, and serve them. (ECF No. 22.) The second amended complaint was entered on the docket on May 31, 2018 and included as defendants John Does #1-5. (ECF No. 21.) After Armor Medical Group moved to dismiss for failure to state a claim, Plaintiff moved for summary judgment against all defendants. (ECF Nos. 47, 52.) In March 2019, Armor‘s motion to dismiss was granted and Plaintiff’s motion for summary judgment was denied. (ECF Nos. 74, 79.)
In April 2019, the case was reassigned to the undersigned. In June 2019, the Nassau County Attorney identified John Does #1 and #2 as Defendants Hollingshead and James. (ECF No. 99.) After the parties agreed to mediation, Plaintiff secured pro bono counsel. (ECF Nos. 101, 110.) Armor and Plaintiff agreed to a settlement, and stipulated to a dismissal with prejudice. (ECF No. 116, 118.) After the parties engaged in discovery, Plaintiff filed what he designated as a fourth amended complaint on April 1, 2020.26 In July 2020, Plaintiff alerted the Court that he
identified John Doe #3 through photographs produced during discovery. (ECF No. 150.)
Accordingly, Plaintiff filed the operative fifth amended complaint, including claims against Defendant Ryan, on August 5, 2020.27 (ECF No. 151.) He asserts the violation of his Fourteenth Amendment rights by (1) a failure to protect and intervene, against Defendants Ryan, Hollingshead, and James; (2) supervisory liability for unsafe conditions at NCCC, against Defendant Sposato; and (3) municipal liability for failure to train and supervise employees, against Nassau County. On March 28, 2022, Defendants moved for summary judgment. (ECF Nos. 215, 216.)
LEGAL STANDARD
Summary judgment is appropriate when a movant demonstrates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
ambiguities and draw all reasonable inferences in favor of the non-moving party. See Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir. 2010).
When bringing a motion for summary judgment, the movant carries the burden of demonstrating the absence of any disputed issues of material fact and entitlement to judgment as a matter of law. Rojas, 660 F.3d at 104. The movant must point to evidence in the record, “including depositions, documents . . . [and] affidavits or declarations,”
Once the moving party has met its burden, 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.” Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008) (citing Celotex Corp., 477 U.S. at 322-23). The non-movant cannot rely on the allegations in his or her pleadings,
conclusory statements, or on “mere assertions that affidavits supporting the motion are not credible.” Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citations omitted). In deciding a motion for summary judgment, the Court is not to weigh evidence, assess the credibility of witnesses, or resolve issues of fact. United States v. Rem, 38 F.3d 634, 644 (2d Cir. 1994) (citations omitted).
DISCUSSION
I. PLRA Exhaustion
The PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 . . . 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.”
The NCCC provides an administrative remedy through its “Inmate Grievance Program.” (ECF No. 188-7, Exhibit 10 (“Pl. Ex. 10”) at 9.) NCCC‘s “Inmate Handbook” states the following regarding the process for filing grievances:
You may attempt to resolve your complaint in an informal manner with the housing area officers and/or supervisors prior to filing a written (formal) grievance. If the housing area officers and/or supervisors are unable to resolve your complaint, or if you do not wish to attempt to resolve your complaint in an informal manner, you may access the grievance process by completing a Grievance form.
The parties agree that Plaintiff did not file a grievance at NCCC within five days of the alleged assault against Plaintiff. (See ECF Nos. 215-4, Nassau County Defs Mem. of Law at 11-12; 215-11, Pl. Mem. at 16-17; 216-2 Def Ryan Mem. of Law at 16.) Defendants assert that Plaintiff’s failure to file a grievance within five days constitutes failure to exhaust under the PLRA and bars Plaintiff’s action in its entirety. (See ECF Nos. 215-4, Nassau County Defs Mem. of Law at 11-12; 216-2 Def Ryan Mem. of Law at 16-17.) Plaintiff counters that he was not a prisoner when the operative complaint (the fifth amended complaint) in this action was filed, and thus the PLRA’s exhaustion requirement does not bar his claims. (ECF No. 215-11, Pl. Mem. at 13-14.)
A. Application of the PLRA to Amended Pleadings
“The relevant time at which a person must be ‘a prisoner’ within the meaning of the PLRA in order for the Act’s restrictions to apply is ‘the moment the plaintiff files his complaint.‘” Jones v. Cuomo, 2 F.4th 22, 26 (2d Cir. 2021) (alteration and citation omitted) (concluding plaintiff was not subject to PLRA‘S exhaustion requirement because he was detained under a civil sex offender confinement statute when he filed his complaint). The Second Circuit has stated that “[t]he natural reading of the text of the PLRA is that, to fall within the definition of ‘prisoner,’ the individual in question must be currently detained as a result of an accusation, conviction, or sentence for a criminal offense.” Id. at 25. Here, neither party disputes that Plaintiff was a prisoner for the purposes of the PLRA at the time he filed the original complaint in this action, on December 28, 2017, (ECF No. 1, Compl.), and that Plaintiff was released from custody on August 29, 2019. (ECF No. 188-33, Pl. Ex. 45, at 2.) Therefore, he was not incarcerated when he filed the operative complaint, the fifth amended complaint, on August 5, 2020. (ECF No. 151, Fifth Am. Compl.) Accordingly, Plaintiff was not a prisoner for purposes of the PLRA when he filed the operative fifth amended complaint in this action. See Jones, 2 F.4th at 25.
The Second Circuit has not yet decided, however, whether the PLRA‘S exhaustion requirement applies when a plaintiff was a
prisoner at the time of the filing of the original complaint, but is no longer a prisoner when an amended complaint is filed. There is a split among the circuit courts that have addressed the issue, which the Supreme Court has not yet resolved. Compare Garrett v. Wexford Health, 938 F.3d 69 (3d Cir. 2019) (holding that the PLRA’s exhaustion requirement did not apply to a formerly incarcerated plaintiff’s amended complaint), cert. denied 140 S. Ct. 1611 (2020); Saddozai v. Davis, 35 F.4th 705 (9th Cir. 2022) (same); with Harris v. Garner, 216 F.3d 970 (11th Cir. 2000) (en banc) (holding that release from prison after a lawsuit was filed was irrelevant to a different PLRA requirement, irrespective of a later amended complaint); Smith v. Terry, 491 F. App’x 81 (11th Cir. 2012) (summary order) (applying the holding in Harris to the PLRA’s exhaustion requirement); May v. Segovia, 929 F.3d 1223 (10th Cir. 2019) (holding that PLRA exhaustion applied to any claims brought prior to a plaintiff’s release from prison).28
In Jones v. Bock, 549 U.S. 199, 212 (2007),
Circuit courts have cited the Supreme Court‘s reasoning in Jones to hold that PLRA exhaustion does not apply where a plaintiff who was a prisoner at the time of an original complaint files an amended or supplemental complaint after release. In Jackson v. Fong, 870 F.3d 928, 931 (9th Cir. 2017), the Ninth Circuit addressed a lawsuit that a prisoner-plaintiff initiated while in custody. The prisoner-plaintiff first had submitted a claim to the California Department of Corrections and Rehabilitation‘s administrative review process, and appealed the denial of his claim. Id. at 931-32. When his appeal was denied, the prisoner-plaintiff sought review both through the administrative process and in federal court: after appealing to the “third and final level of [administrative] review,” but before receiving a decision, he filed suit in federal court. Id. at 932. Before he received a decision on his still-pending appeal, he was released from custody, and his administrative appeal was closed due to his release. Id. He later filed a third amended complaint. Id. The district court granted summary judgment to the defendants due to the prisoner-plaintiff’s lack of PLRA exhaustion at the time of his original complaint. Id.
Accordingly, the Ninth Circuit looked to the Federal Rules of Civil Procedure for guidance on whether the PLRA‘S exhaustion requirement barred a formerly incarcerated plaintiff’s amended complaint, analyzing the amended complaint as a supplemental complaint under
The Ninth Circuit recently reaffirmed Jackson‘s holding in Saddozai v. Davis, 35 F.4th 705 (9th Cir. 2022). In Saddozai, the Ninth Circuit noted that “[b]oth parties agree[d] that Plaintiff had not exhausted his administrative remedies at the time he filed his initial complaint in federal court. The parties also agree[d] that Plaintiff had fully exhausted by the time he filed his third amended complaint,” or the operative complaint. 35 F.4th at 708. The Ninth Circuit stated that it had made clear in Jackson that the PLRA exhaustion requirement applied “based on when a plaintiff files the operative complaint.” Id. It was
irrelevant that the prisoner-plaintiff in Jackson had been released from custody at the time of the operative complaint, whereas the prisoner-plaintiff in Saddozai had not been. Id. The cure for the initial lack of PLRA exhaustion in Jackson was not due to plaintiff’s new “status as a non-prisoner,” but was “because [he] filed a new operative complaint at a time when the PLRA exhaustion requirement no longer applied to him.” Id. (emphasis added). In Saddozai, therefore, what mattered was that the prisoner-plaintiff had added facts concerning administrative exhaustion in his operative complaint. Id. at 708-09. The Ninth Circuit considered the operative complaint to be a supplemental complaint under
In Garrett v. Wexford Health, 938 F.3d 69, 88 (3d Cir. 2019), the Third Circuit similarly held that the PLRA‘s exhaustion requirement did not bar a former prisoner‘s third and fourth amended complaints, filed after his release. In Garrett, the original complaint “acknowledged on the first page . . . that, although [the prisoner-plaintiff] had filed grievances concerning his claims, the grievance process was not complete.” Id. at 76. He
was later released from custody. Id. at 78. When he filed a third amended complaint, post-release, the record showed that he had fully exhausted at least three of his claims prior to his release. Id. at 79. After his third amended complaint was dismissed for lack of PLRA exhaustion at the time of the original lawsuit, he filed a fourth amended complaint, which was again dismissed for failure to exhaust. Id. at 79-80.
The Third Circuit analyzed the amended complaints under
Though the third amended complaint in Garrett did not explicitly allege that the plaintiff was not a prisoner at the time of its filing, it was “obvious” from the face of the third amended complaint that he was not. Id. at 84 n.20. Therefore, the third amended complaint cured the lack of PLRA exhaustion at the filing of the original complaint. Id. at 84. The Third Circuit noted that Jones supported this holding because Jones “teaches . . . that the usual procedural rules apply to PLRA cases unless the PLRA specifies otherwise.” Id. at 87.
Other circuit courts, however, reject the premise that a post-release amended complaint cures a plaintiff‘s prior failure to exhaust his or her claims under the PLRA. In Harris v. Garner, 216 F.3d 970 (11th Cir. 2000) (en banc); see
In a later unpublished opinion, Smith v. Terry, 491 F. App‘x 81, 83 (11 Cir. 2012) (per curiam), the Eleventh Circuit explicitly extended Harris‘s reasoning to the PLRA‘s exhaustion requirement. In Smith, a prisoner-plaintiff filed a complaint in federal court after submitting a claim for administrative review, but before receiving a decision on his appeal of the initial denial of his claim. Id. at 82. He then filed a supplemental complaint after receiving the denial of his appeal, and argued that his supplemental complaint cured the original lack of PLRA exhaustion. Id. The Eleventh Circuit stated that the “only facts pertinent to determining whether a prisoner has satisfied the PLRA‘s exhaustion requirement are those that existed when he filed his original complaint,” and thus any supplemental complaint could not cure a PLRA exhaustion defect. Id. at 83.
In May v. Segovia, 929 F.3d 1223 (10th Cir. 2019),
The Tenth Circuit reasoned that an amended complaint does not render an original complaint inoperative for all purposes: an “amended complaint, as the operative complaint, supersedes the original complaint‘s allegations but not its timing.” Id. at 1229. Because exhaustion is an affirmative defense and not a pleading requirement, the “question under the PLRA [was] the timing of the claim alleged, not the sufficiency of the allegations.” Id. Therefore, the Tenth Circuit held that PLRA exhaustion could not be cured by an amended complaint: later, superseding allegations would not change the fact that a plaintiff was a prisoner at the time he first “brought” an unexhausted claim. Id.
As noted above, the Second Circuit has not decided whether a lack of PLRA exhaustion bars an amended or supplemental complaint filed by a non-prisoner plaintiff where the original complaint was filed while the plaintiff was in custody. The few courts in this Circuit to address the issue have yielded opposite conclusions.31 Compare Ojo v. United States, No. 15-CV-6089 (ARR), 2018 WL 3863441, at *8 n.5 (E.D.N.Y. Aug. 14, 2018) (rejecting defendants’ argument about plaintiff‘s “end run” around the PLRA and noting that “federal courts have found that the PLRA‘S exhaustion requirement does not apply when a plaintiff files suit while incarcerated but later amends the complaint after release“); with Makell v. Cnty. of Nassau, No. 19-CV-6993 (BMC), 2022 WL 1205096, at *3 (E.D.N.Y. Apr. 22, 2022) (reasoning that amended complaints override original complaints “only regarding the determination of whether the amended complaint states a plausible claim” and that an original complaint “continues to have force and effect for all other purposes“).
This Court analyzes the application of the PLRA‘s exhaustion requirement following the Supreme Court‘s instructions in Jones that “courts should generally not depart from the usual practice under the Federal Rules on the basis of perceived policy concerns [in the PLRA].” 549 U.S. at 212. The PLRA “deal[s] extensively with the subject of exhaustion” but, similarly to Jones, “is silent” on the issue of whether an action is “brought” by a plaintiff at the time of the filing of the original complaint or at the time of the filing of the operative complaint. Id.;
It is true that, as the Eleventh Circuit stated in Harris,
Here, the Court considers Sanchez‘s fifth amended complaint to be an amended complaint under
As stated above, a supplemental complaint can cure defects from a prior complaint. See Saddozai, 35 F.4th at 709; Travelers Ins. Co. v. 633 Third Assoc., 973 F.2d 82, 87-88 (2d Cir. 1992) (finding that district court could grant leave to amend even though original pleading was defective for purposes of standing); see also Wright, Miller, & Kane, Federal Practice and Procedure: Civil 3d § 1507, pg. 273 (“[E]ven though [
Indeed, the Supreme Court addressed a similar issue in Mathews v. Diaz, wherein a plaintiff had failed to exhaust procedures for his Medicare application, as required by
Although
42 U.S.C. § 405(g) establishes filing of an application as a nonwaivable condition of jurisdiction, [the plaintiff] satisfied this condition while the case was pending in the District Court. A supplemental complaint in the District Court would have eliminated this jurisdictional issue; since the record discloses, both by affidavit and stipulation, that the jurisdictional condition was satisfied, it is not too late, even now, to supplement the complaint to allege this fact.
Id. at 75; see also Rockwell Int‘l Corp. v. United States, 549 U.S. 457, 473-74 (2007) (“[W]hen a plaintiff files a complaint in federal court and then voluntarily amends the complaint, courts look to the amended complaint to determine jurisdiction.“).
In May, the Tenth Circuit stated that Diaz‘s holding does not apply in the context of PLRA exhaustion. 929 F.3d at 1229. The Tenth Circuit noted that the exhaustion requirement in
This Court respectfully disagrees. Several months before Diaz, the Supreme Court stated in Mathews v. Eldridge, 424 U.S. 319 (1976), that
In May, as noted above, the Tenth Circuit distinguished PLRA exhaustion from
Further, courts do recognize the allegations in amended and supplemental complaints for at least limited purposes when considering PLRA exhaustion. Otherwise, a plaintiff could not use allegations in an amended complaint to establish that administrative remedies were “unavailable,” the narrow exception to PLRA exhaustion recognized by the Supreme Court. See Ross v. Blake, 578 U.S. 632, 648 (2016). It is true that plaintiffs need not plead exhaustion in a complaint and that defendants must assert PLRA exhaustion as an affirmative defense. Jones, 549 U.S. at 216. But courts regularly rely on the facts asserted in amended and supplemental complaints to determine if PLRA exhaustion has been met, once the affirmative defense is raised. See, e.g., Rucker v. Giffen, 997 F.3d 88, 90, 93 (2d Cir. 2021) (concluding that exhaustion was “unavailable” to plaintiff based on allegations in amended complaint). Indeed, albeit in dicta, the Supreme Court has noted that a defect in PLRA exhaustion in an original complaint “was arguably cured” by later amended complaints-supporting the conclusion that courts may assess PLRA exhaustion as of the date of the filing of an operative amended complaint. See Ramirez v. Collier, 142 S. Ct. 1264, 1276 (2022) (citing Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (“As a general rule, when a plaintiff files an amended complaint, the amended complaint supercedes[sic] the original, the latter being treated thereafter as non-existent.“)).
Accordingly, this Court concludes that Plaintiff is not barred by the PLRA exhaustion requirement. The Second Circuit recognizes that plaintiffs who file actions “after release from confinement are no longer ‘prisoners’ for purposes of
Defendants argue that the PLRA bars Plaintiff‘s action, but only briefly address whether PLRA exhaustion may be assessed at the time of Plaintiff‘s filing of an operative amended complaint. Nassau County Defendants contend that an amended complaint cannot cure a defect in exhaustion, but do not cite any controlling legal authority in support of this assertion. (ECF No. 215-15, Nassau County Defs. Reply Mem. of Law, at 1.) Defendant Ryan argues that Berry v. Kerik, 366 F.3d 85 (2d Cir. 2004), precludes the conclusion that PLRA exhaustion may be assessed relative to an amended complaint. (ECF No. 216-4, Def. Ryan Reply Mem. of Law, at 7.) He argues that the PLRA exhaustion analysis in Berry turned “on whether a plaintiff [was] a confined prisoner at the time he files suit.” (Id.) Berry, however, is distinguishable. The alleged mistreatment that the Berry plaintiff suffered occurred in 1998, and he was released from custody in 1999. 366 F.3d at 86-87. After his release, however, he returned to custody after being arrested for larceny. Id. at 87. While incarcerated on the subsequent larceny charge, he filed two
B. Availability of PLRA Exhaustion
Even if the Court assumes that PLRA exhaustion can be assessed only as of the filing date of the original complaint, however, lack of exhaustion could not be decided on summary judgment in this case. “Under the PLRA, a prisoner need exhaust only ‘available’ administrative remedies.” Ross, 578 U.S. at 638. The Supreme Court has established “three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief,” and thus is unavailable to exhaust. Id. at 643. An administrative remedy may be unavailable when (1) “it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates“; (2) it is “so opaque that it becomes, practically speaking, incapable of use“; or (3) “when prison administrators
Once a defendant meets the “burden of establishing the existence and applicability of the grievance policy,” the plaintiff bears the burden of establishing de facto unavailability. Saeli v. Chautauqua Cnty., NY, 36 F.4th 445, 453 (2d Cir. 2022). Availability of administrative procedures is determined objectively: the Court asks if “a similarly situated individual of ordinary firmness [would] have deemed them available.” Lucente, 980 F.3d at 311-12 (quoting Hemphill v. New York, 380 F.3d 680, 688 (2d Cir. 2004), abrogated on other grounds by Ross, 578 U.S. at 637, 643)).
Often, however, courts must analyze disputed facts when assessing the availability of remedies for purposes of PLRA exhaustion. Every circuit to consider the issue, including the Second Circuit, has held that judges may address factual disputes relevant to PLRA exhaustion without the participation of a jury. See Messa v. Goord, 652 F.3d 305, 3009 (2d Cir. 2011) (per curiam); Lee v. Willey, 789 F.3d 673, 678 (6th Cir. 2015); Small v. Camden Cnty., 728 F.3d 265, 271 (3d Cir. 2013); Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010); Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008); Bryant v. Rich, 530 F.3d 1368, 1373-77 (11th Cir. 2008); Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir. 2003), overruled on other grounds by Albino v. Baca, 747 F.3d 1162, 1166, 1170-71 (9th Cir. 2014); see also Carbajal v. McCann, 808 F. App‘x 620, 639 (10th Cir. 2020) (summary order). Although “a
The majority of circuit courts to address the issue, however, have held that district courts may only decide factual disputes relevant to PLRA exhaustion “that are not bound up with the merits of the underlying dispute.” Messa, 652 F.3d at 309 (“[T]he factual disputes relating to exhaustion are not intertwined with the merits of [plaintiff‘s] underlying excessive force claim.“); Willey, 789 F.3d at 678 n.3 (noting that “the factual disputes concerning exhaustion were not intertwined with the merits of Lee‘s underlying Eighth Amendment claim“); Small, 728 F.3d at 270 (“[T]he
Here, the factual disputes relevant to PLRA exhaustion go to and are inextricably entangled with the merits of Plaintiff‘s underlying claims. As noted above, the parties do not dispute (1) that the NCCC provides an administrative remedy through its “Inmate Grievance Program,” which requires inmates to file a grievance within five days; or (2) that Plaintiff failed to do so within five days of the alleged assault. [ECF No. 188-7, Pl. Ex. 10 at 9; ECF Nos. 215-4, Nassau County Defs Mem. of Law at 11-12; 215-11, Pl. Mem. in Opp. at 16-17; 216-2 Def Ryan Mem. of
Plaintiff argues that the grievance process was unavailable because of intimidation by prison staff. See Lucente, 980 F.3d at 312 (“[W]e have noted that ‘threats or other intimidation by prison officials may well deter a prisoner of ordinary firmness from filing an internal grievance, but not from appealing directly to individuals in positions of greater authority within the prison system, or to external structures of authority such as state or federal courts‘) (quoting Hemphill, 380 F.3d at 688)). He asserts that (1) he had filed and settled a prior lawsuit against NCCC corrections officers based on a 2007 incident involving excessive force against a detainee; (2) partially in retaliation, Defendant Ryan loudly called him a ‘snitch’ several times within the hearing of other inmates; (3) shortly after being called a snitch, he was slashed across the face and beaten by other inmates in front of Defendants Hollingshead and James, who did not intervene; (4) he was later told by different corrections officers that “things come full circle” and “you should learn to keep your mouth shut“; (5) he was interviewed by law enforcement about the assault in a room with windows where many other inmates could see him, and he advised the law enforcement officers of his concerns about safety; and (6) he filed grievances and a lawsuit upon his transfer to a different facility, where he did not fear repercussions. (ECF No. 215-11, Pl. Mem. in Opp. at 16-18; ECF No. 188, Millson Declaration, at ¶ 52; Exhibit 63, Audio Recording: May 11, 2018 Interview of Pierre Sanchez by Internal Affairs Unit (“Ex. E“) at 02:35-02:45); ECF No. 40, Ex. 51 at 214:18-215:10.)
Defendants agree that Plaintiff settled a lawsuit with NCCC staff concerning a 2007 incident, but dispute the other facts that Plaintiff asserts in support of his argument that administrative remedies were unavailable due to intimidation by prison officials. (ECF No. 215-4, Nassau County Defs Reply at 1-4; ECF No. 196, County Defs. Reply 56.1 at ¶¶ 282, 290-293, 353-54, 384; ECF No. 216-2, Def Ryan Mem. of Law at 16-20; ECF No. 194, Def. Ryan Reply 56.1 at ¶¶ 196-202.) Nassau County Defendants argue that Plaintiff has changed his assertions surrounding the alleged assault, and that he initially “told investigators that he did not want to pursue the matter,” meaning that administrative remedies were available to him. (ECF No. 215-4, Nassau County Defs. Reply at 2.) Defendant Ryan contends that Plaintiff asserts only a “generalized fear of retaliation,” which is insufficient to establish that administrative remedies were unavailable. (ECF No. 216-2, Def Ryan Mem. of Law at 16-20).
The above disputed facts-including whether Defendant Ryan twice called Plaintiff a ‘snitch’ within the hearing of other detainees, and whether Defendants Hollingsworth and James ignored Plaintiff during the alleged assault-go straight to the merits of Plaintiff‘s underlying failure to protect claims against Defendants Hollingsworth, James, and Ryan. Because of this “peculiarity . . . [of] overlap between the factual issues relating to exhaustion and those relating to the merits” in this case, the
intertwined with Plaintiff‘s substantive claim . . . the Court will leave it to the jury to determine the factual issues.“); Rickett v. Orsino, No. 10-CV-5152 (CS)(PED), 2013 WL 1176059, at *23 (S.D.N.Y. Feb. 20, 2013), report and recommendation adopted, 2013 WL 1155354 (S.D.N.Y. Mar. 21, 2013) (concluding that “the exhaustion-related factual disputes are not amenable to pre-trial resolution because the facts pertaining to Plaintiff‘s exhaustion excuses are intertwined with the merits of his underlying claims“). Accordingly, the Court concludes that the disputed facts concerning the availability of administrative remedies for purposes of PLRA exhaustion cannot be decided on summary judgment.
II. Section 1983
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . .
To prevail on a
A. Failure to Protect35
“Prison officials have a duty . . . to protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal quotation marks and citation omitted). Not every injury, however, “translates into constitutional liability for prison officials responsible for the victim‘s safety.” Id. at 834. In Darnell v. Pineiro, the Second Circuit held that pretrial detainees’ “claims of unconstitutional conditions of confinement are governed by the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishments Clause of the Eighth Amendment,” which is the standard for convicted prisoners. 849 F.3d 17, 29 (2d Cir. 2017). Because pretrial detainees have not been convicted of a crime, they “may not be punished in any manner—neither cruelly and unusually nor otherwise.” Id. (internal quotations and citations omitted); see also House v. City of New York, No. 18-CV-6693 (PAE)(KNF), 2020 WL 6891830, at *11 (S.D.N.Y. Nov. 24, 2020). Failing to protect a pretrial detainee from assault rises to the level of a constitutional violation of the Fourteenth Amendment only where an official acted with “deliberate indifference to a substantial risk of serious harm” to the detainee. Id. at 836 (internal quotation marks omitted) (citations omitted).
To establish deliberate indifference for a failure to protect claim, a plaintiff must satisfy a “two-prong test comprised of both objective and subjective standards.” McDaniel v. City of New York, No. 19-CV-8735 (KPF)(RWL), 2022 WL 421122, at *6 (S.D.N.Y. Feb. 11, 2022)
i. Defendant Ryan
Defendant Ryan primarily argues that Plaintiff is unable to establish a failure to protect claim because Plaintiff‘s alleged interactions with Ryan never happened and Defendant Ryan never called Plaintiff a snitch. (ECF No. 216-2, Def Ryan Mem. of Law at 10-12.)
These assertions, however, are disputed material facts that cannot be resolved by the Court at summary judgment. Defendant Ryan‘s and Plaintiff‘s deposition testimony are directly at odds as to whether Defendant Ryan encountered Plaintiff or called him a snitch. (Compare ECF No. 188-40, Ex. 51 at 110:6-111:4, 114:16-114:23, with ECF No. 188-48, Ex. 60 at 134:12-134:23.) Defendant Ryan contends that, regardless of that central factual dispute, Plaintiff made “only vague and conclusory statements and fails to sufficiently support or corroborate” his claims. (ECF No. 216-2, Def Ryan Mem. of Law at 12.) Plaintiff‘s deposition testimony, however, was neither vague nor conclusory. He testified to the alleged incident in detail, as shown by the following excerpt:
When he was walking past my cell, I asked him if I could get on the food cart when it was possible. He said, let me go check it out. Then he went and finished his round. Then I didn‘t see him for a while. When he did his next round . . . when he walked past my cell, I wasn‘t paying attention to outside my cell at that point . . . I didn‘t hear the first thing he said, but he blurted out snitch at the end of when he was walking past my cell. There was one other time that—and this was a couple of weeks after that, but there was another time that he was standing by the television, and he walked by . . . and he looked right at me in front of a couple of inmates standing around the television, and he looked right at me and called me a snitch and kept moving. Everybody looked at me when he called me a snitch.
(ECF No. 188-40, Ex. 51 at 114:11-115:9.) Plaintiff also testified that after Defendant Ryan called him a snitch, “people start[ed] filtering away from me. It‘s not, like, a mass incident, it‘s like they ran away from me, but as I‘m standing there, I could feel people, like, moving away from me.” (ECF No. 188-47, Ex. 59 at 114:13-114:24.)
Such deposition testimony is admissible for purposes of summary judgment under
If a rational fact finder resolved these disputed issues of fact in Plaintiff‘s favor, Plaintiff would be able to establish a failure to protect claim as a matter of law. The objective prong of a Fourteenth Amendment failure to protect claim requires Plaintiff to establish that conditions were “sufficiently serious” to trigger constitutional protection. Courts in this Circuit have found that “when an inmate is the victim of an undisputedly unprovoked attack, sufficiently severe injuries may constitute per se showings of a sufficiently serious condition of confinement.” Gordon v. Drummond, No. 19-CV-8405(GBD)(GWG), 2021 WL 5314604, at *7 (S.D.N.Y. Nov. 16, 2021) (alterations and citations omitted), report and recommendation adopted, 2022 WL 884971 (S.D.N.Y. Mar. 25, 2022); see also House, 2020 WL 6891830, at *13 (collecting cases where victims were subjected to unprovoked attacks and thus met objective prong); Warren v. Goord, 579 F. Supp. 2d 488, 491, 494 (S.D.N.Y. 2008), aff‘d, 368 F. App‘x 161 (2d Cir. 2010) (where inmate watching television was attacked with a razor by another inmate, resulting in a three-inch face wound and stitches); Knowles v. N.Y.C. Dep‘t of Corr., 904 F. Supp. 217, 221 (S.D.N.Y. 1995) (finding that objective prong was “easily satisfie[d]” after plaintiff‘s “face [was] suddenly and unexpectedly slashed with a sharp instrument possessed by a fellow inmate” resulting in a “deep cut to his face“); see King v. Dep‘t of Correction, No. 95-CV-3057 (JGK), 1998 WL 67669, at *5 (S.D.N.Y. Feb. 18, 1998) (“[T]he injury sustained by the plaintiff, a cut to his face, neck, and shoulder requiring 12-13 stitches, and the manner in which he received the injury, are sufficient to satisfy the objective requirement of the Eighth Amendment claim.“).
Here, it is undisputed that Plaintiff was slashed across the face from his ear to his mouth and required medical attention, including numerous stitches. Further, Defendant Ryan does not argue that Plaintiff did anything to provoke the attack; conversely, he asserts that “the assault was a sudden and random incident in the recreation yard between inmates.” (ECF No. 216-2, Def Ryan Mem. of Law at 12.) Such a severe and unprovoked attack constitutes a “per se showing[]” of the objective prong of a Fourteenth Amendment failure to protect claim. Gordon, 2021 WL 5314604, at *7, report and recommendation adopted, 2022 WL 884971.
Even if Plaintiff was unable to establish the objective prong due to the unprovoked and serious nature of the assault, sufficiently serious conditions of confinement may also be established by “a particularized, substantial risk of serious harm.” House, 2020 WL 6891830, at *12. Courts in this Circuit have noted that “a claim for deliberate indifference may lie where a corrections officer identifies an inmate as
As to the subjective prong of a Fourteenth Amendment failure to protect claim, if a jury were to credit Plaintiff‘s account and find that Defendant Ryan repeatedly called Plaintiff a snitch in front of other inmates, Plaintiff could establish that Defendant Ryan “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, 849 F.3d at 35. It is undisputed that Defendant Ryan was aware that referring to someone as a “snitch” in a prison setting could put them in danger. (See ECF No. 194, Def. Ryan Reply 56.1 at ¶ 204; see also ECF No. 188-45, Ex. 57 at 25-27.) There is also record evidence, undisputed by Defendant Ryan, that other prison officials understood that referring to a detainee as a “snitch” could be dangerous. (See ECF No. 194, Def. Ryan Reply 56.1 at ¶ 203; ECF No. 188-41, Ex. 52 at 152:10-153:7.) One NCCC official, Lieutenant Arthur Krueger, testified in his deposition that it would be a “no-no” for a corrections officer to refer to an inmate as a snitch around other inmates; that it could lead to “anything from . . . [that inmate] being ostracized to maybe a physical assault,“; and that an officer would “quite possibly” be disciplined for engaging in such behavior. (ECF No. 188-41, Ex. 52 at 152:10-153:7.) Further, the Second Circuit noted that “courts have found an Eighth Amendment violation where a guard publicly labels an inmate as a snitch, because of the likelihood that the inmate will suffer great violence at the hands of fellow prisoners.” Burns, 890 F.3d at 91; Hamilton, 2013 WL 3784153, at *15 (noting “courts have recognized that being labeled a snitch in the prison environment can indeed pose a threat to an inmate‘s health and safety in violation of the Eighth Amendment” (internal quotation marks and citations omitted)); Tate v. City of New York, No. 16-CV-1894 (KAM)(SMG), 2017 WL 10186809, at *11 (E.D.N.Y. Sept. 29, 2017) (noting that plaintiff can meet subjective prong “by identifying a specific threat or any facts rendering it likely that plaintiff would be subject to imminent, physical harm” (internal quotation marks omitted)). It is
Nassau County Defendants, however, contend that all individual defendants, including Defendant Ryan, are entitled to qualified immunity. (ECF No. 215-4, Nassau County Defs. Mem. of Law at 22.) Setting aside whether the Court should consider an argument not raised by Defendant Ryan, the Court finds that qualified immunity does not bar this claim against Defendant Ryan. The Supreme Court “does not require a case directly on point for a right to be clearly established,” but “existing precedent must have placed the statutory or constitutional question beyond debate.” White v. Pauly, 580 U.S. 73, 79 (2017) (alterations, internal quotation marks and citation omitted). Accordingly, a clearly established violation requires “a body of relevant case law, particularized to the facts of the case, that makes plain that [Defendant Ryan‘s] conduct was in violation of the [Fourteenth] Amendment.” Liverpool v. Davis, 442 F. Supp. 3d 714, 734 (S.D.N.Y. 2020).
Assuming the facts in Plaintiff‘s favor, a body of relevant case law exists here. It has long been “clearly established” that “[p]rison officials have a duty . . . to protect prisoners from violence at the hands of other prisoners.” Farmer, 511 U.S. at 833 (internal quotation marks and citation omitted). Indeed, the Second Circuit has stated plainly that “[i]n the prison context, the clearly established standard for [a failure to protect] claim is that the official acted with deliberate indifference toward the safety of the prisoner.” Gordon v. City of New York, No. 05-CV-0351, 2005 WL 2899863, at *1 (2d Cir. Nov. 3, 2005) (citing Hayes v. N.Y.C. Dep‘t of Corr., 84 F.3d 614, 620-21 (2d Cir. 1996)). And, in Darnell, the Second Circuit clearly held that deliberate indifference occurs where a “defendant-official acted intentionally to impose the alleged condition, or 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.” 849 F.3d at 35.
The case law encompasses the facts of this case. In Burns v. Martuscello, the Second Circuit stated that it is “well understood that inmates known to be snitches are widely reviled within the correctional system” and that “a number of courts have found an Eighth Amendment violation where a guard publicly labels an inmate as a snitch, because of the likelihood that the inmate will suffer great violence at the hands of fellow prisoners.” 890 F.3d at 91 (emphasis added) (citing intra- and inter-Circuit case law that predates November 2017). The Second Circuit concluded that, therefore, being unmasked as an alleged informant, whether or not true, “may well prompt life-threatening physical harm.” Id. In Benefield v. McDowall, a 2001 decision cited by Burns, the Tenth Circuit reiterated a prior holding that “labeling an inmate a snitch satisfies the Farmer standard, and constitutes deliberate indifference to the safety of that inmate,” and noted that at least four other circuits had “recognized that labeling an inmate a snitch has the potential for great harm and may violate constitutional guarantees.” 241 F.3d 1267, 1271 (10th Cir. 2001). Though it is true that the Second Circuit‘s Burns decision was issued shortly after the events at issue here, this Court “finds that its legal conclusions were obvious, and would have been obvious to a competent officer” in November 2017. Liverpool, 442 F. Supp. at 735. Indeed, none of the Defendants
Further, though typically “only decisions by the Supreme Court or the Second Circuit suffice to clearly establish that conduct is unlawful within this Circuit,” the Second Circuit “has recognized that law may be clearly established by decisions from other circuits, if those decisions ‘clearly foreshadow a particular ruling on the issue.‘” Liverpool, 442 F. Supp at 735 (quoting Terebesi v. Torreso, 764 F.3d 217, 231 (2d Cir. 2014)). Although Burns’ discussion of Benefield takes place in the context of a First Amendment claim regarding prison informants, Benefield clearly foreshadowed the Second Circuit‘s reasoning that “violence may well befall” prison snitches who are “unmasked.” Burns, 890 F.3d at 91. And, importantly, Benefield directly states that not only is it “clearly established” in the Tenth Circuit that being called a snitch—and having that label be publicized to other inmates—violated the Eighth Amendment,36 but that many other circuits have recognized the “potential for great harm” in publicly labeling inmates as snitches. 241 F.3d at 1271. The number of cases regarding the obvious risk of harm created by labeling an inmates as a “snitch” in front of other detainees constitute the type of situation the Supreme Court has described as a “consensus of cases of persuasive authority” establishing “that a reasonable officer could not have believed that his actions were lawful.” Wilson v. Layne, 526 U.S. 603, 617 (1999).
Accordingly, the Court “cannot conclude that it was objectively reasonable for [Defendant Ryan] to believe that his actions (as they are alleged by [Plaintiff]) did not violate” the Constitution. Dennis v. Westchester Cnty. Jail Corr. Dep‘t, 485 F. App‘x 478, 481 (2d Cir. 2012) (summary order). For all of the reasons discussed above, Defendant Ryan has failed to meet the burden of demonstrating that “no rational jury could conclude (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.” Coolick v. Hughes, 699 F.3d 211, 219 (2d Cir. 2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).
The Court need not, however, come to a decision on the merits of qualified immunity. There exist genuine and material disputes of fact at this stage, including whether Defendant Ryan called Plaintiff a snitch, that preclude summary judgment based on qualified immunity. See Thevenin v. French, 850 F. App‘x 32, 36-38 (2d Cir. 2021) (summary order) (affirming the district court‘s denial of summary judgment based on qualified immunity where the record contained disputed issues of fact); Bonilla v. United States, 357 F. App‘x 334, 335 (2d Cir. 2009) (summary order) (“Although qualified immunity is a question of law for the [c]ourt, if there are factual disputes that bear directly upon whether it was objectively reasonable for an official to believe that he was acting lawfully, these disputes must be resolved by a jury before the legal question can be addressed.” (citation omitted)). Accordingly, summary judgment is denied as to Plaintiff‘s failure to protect claim against Defendant Ryan.
ii. Defendants Hollingshead and James
Nassau County Defendants argue that Plaintiff cannot establish a failure to protect claim against Defendants Hollingshead and James because he has not introduced evidence of deliberate indifference. (ECF No. 215-4, Nassau County Defs. Mem. of Law at 17.) They assert that (1) Plaintiff‘s allegations that Defendant Ryan called him a snitch “cannot satisfy the objective prong“; (2) Hollingshead and James had no knowledge that Plaintiff allegedly was called a snitch prior to the assault; and (3) Plaintiff never advised either defendant that he feared for his safety prior to the incident. (Id. at 19.)
As with Defendant Ryan, Nassau County Defendants do not argue that the attack was provoked by Plaintiff, asserting instead that the assault was “a random incident.” (ECF No. 215-4, Nassau County Defs. Mem. of Law at 19.) Thus, as this Court determined above, the “undisputedly unprovoked attack” on Plaintiff, which led to severe injury, satisfies the objective prong of his failure to protect claim. Gordon, 2021 WL 5314604, at *7; see Knowles, 904 F. Supp. at 221 (objective prong “easily satisfie[d]” where plaintiff‘s face was “suddenly and unexpectedly slashed with a sharp instrument,” yielding a deep cut that required stiches).
Regarding the subjective prong, however, Plaintiff has provided limited evidence to establish that Defendants Hollingshead and James knew, or should have known, that Plaintiff was facing “an excessive risk to health or safety.” Darnell, 849 F.3d at 35. Plaintiff asserts—and Nassau County Defendants dispute—that Defendants Hollingshead and James were in direct proximity to Plaintiff, located approximately three feet away in the plexiglass shack, when Plaintiff was assaulted in the recreation yard. Nassau County Defendants also dispute that they failed to protect Plaintiff by not responding to the slashing or beating as it was occurring, and by not providing aid after the assault until the end of the recreation period. (See ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶¶ 233-34; ECF No. 188-40, Ex. 51, at 80:18-80:23; ECF No. 184-1, County Defs. 56.1 at ¶¶ 33-34.) Even though a rational fact finder could find Plaintiff‘s assertions credible, such assertions alone do not establish that Defendants Hollingshead and James knew or should have known of an excessive risk to Plaintiff—i.e., that he was repeatedly called a snitch by Defendant Ryan in front of other inmates—in advance of the assault.
Plaintiff did provide additional evidence, however, regarding Defendant Hollingshead‘s knowledge that Plaintiff faced an excessive risk to his safety and that Defendant Hollingshead recklessly failed to act to mitigate that risk. Plaintiff testified that when Defendant Hollingshead approached him in the recreation yard after the assault, Defendant Hollingshead stated that “things come full circle.” (ECF No. 188-40, Ex. 51 at 90:22-91:13.) Although this statement is disputed, rational factfinders could resolve this disputed fact in Plaintiff‘s favor. The jury then could reasonably find that Defendant Hollingshead‘s statement demonstrated
Accordingly, Plaintiff has established a genuine issue of material fact as to whether Defendant Hollingshead knew or should have known of an excessive risk to Plaintiff‘s health and safety. But because Plaintiff does not provide any evidence to establish that Defendant James knew or should have known that Plaintiff was called a snitch in advance of the assault, Plaintiff fails to establish the subjective prong of his failure to protect claim against Defendant James. Thus, Defendant James is granted summary judgment on Plaintiff‘s failure to protect claim.
Nassau County Defendants assert that qualified immunity bars this claim as to Defendant Hollingshead. (ECF No. 215-4, Nassau County Defs. Mem. of Law at 22.) As noted above, however, it was clearly established that corrections officers must take reasonable measures to abate a substantial risk of serious harm if the officers learn of such a risk to an inmate, Farmer, 511 U.S. at 832-33, 844-45, and that publicly designating an inmate as a snitch constitutes a substantial risk. As such, because a reasonable jury could find Plaintiff‘s version of the facts to be true, “a
reasonable officer could not have believed that his actions were lawful.” Wilson, 526 U.S. at 617. At this stage, the Court will not grant summary judgment to Defendant Hollingshead based on qualified immunity because of the genuine dispute as to whether Defendant Hollingshead said to Plaintiff after the assault that “things come full circle.” See, e.g., Jefferson v. Reddish, 718 F. App‘x 94, 96 (2d Cir. 2018) (summary order) (“[G]enuine disputes of material fact preclude our determining as a matter of law whether defendants are entitled to qualified immunity.“); Newkirk v. Cnty. of Suffolk, No. 17-CV-2960 (MKB), 2022 WL 824137, at *6 (E.D.N.Y. Mar. 18, 2022) (“In view of the conflicting evidence creating disputed issues of fact, the Court denies Defendants’ motion for summary judgment based on qualified immunity.“).
Therefore, summary judgment is denied as to Plaintiff‘s failure to protect claim against Defendant Hollingshead, but granted as to Plaintiff‘s failure to protect claim against Defendant James.37
Just as prison officials may be liable for failing to protect an inmate from an assault of which they had knowledge or should have had knowledge, they also may be liable for failing to intervene in an assault. Velez v. City of New York, No. 17-CV-9871 (GHW), 2019 WL 3495642, at *3 (S.D.N.Y. Aug. 1, 2019). “Allowing an attack on an inmate to proceed without intervening is a constitutional violation in certain circumstances.” Rosen v. City of New York, 667 F. Supp. 2d 355, 359 (S.D.N.Y. 2009) (citation omitted). “A claim that an officer failed to intervene rises to the level of a constitutional violation where the officer acted with deliberate indifference to a substantial risk of serious harm to an inmate.” Velez, 2019 WL 3495642, at *3 (internal quotation marks and citation omitted).
Failure to intervene claims brought by pretrial detainees arise under the
The subjective prong is met where an officer “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.” McDaniel, 2022 WL 421122, at *10; see also Williams v. Salvucci, No. 20-CV-5098 (CS), 2022 WL 17586326, at *8 (S.D.N.Y. Dec. 12, 2022). Courts may ask whether a defendant “observed or had reason to know the plaintiff was involved in a physical altercation” and “had an extended opportunity to stop the attack but failed to take any action to do so.” Blake v. Sexton, No. 12-CV-7245 (ER), 2016 WL 1241525, at *4 (S.D.N.Y. Mar. 24, 2016) (alterations and internal quotation marks omitted). McDaniel, 2022 WL 421122, at *10.
As previously discussed, Plaintiff has established the objective prong of a deliberate indifference claim: his undisputed injuries establish that the conditions were “sufficiently serious.” Darnell, 849 F.3d at 35; see also Blake, 2016 WL 1241525, at *4 (“[The] documented injuries suffered by Plaintiff support the inference that conditions were urgent-i.e., sufficiently
Therefore, the Court addresses whether Plaintiff has established the subjective prong of a failure to intervene claim.
i. Defendant Ryan
Plaintiff does not submit any record evidence establishing that Defendant Ryan “observed or had reason to know” that Plaintiff was being assaulted in the recreation yard on November 17, 2018, Blake, 2016 WL 1241525 at *4, and thus that Defendant Ryan had “adequate time” to assess and address the “serious threat” to Plaintiff. McDaniel, 2022 WL 421122, at *10. Accordingly, Plaintiff cannot establish the subjective prong of his failure to intervene claim against Defendant Ryan, and summary judgment is granted to Defendant Ryan as to that claim.
ii. Defendants Hollingshead and James
Nassau County Defendants assert that Plaintiff‘s failure to intervene claim-alleging that Defendants Hollingshead and James, while in the plexiglass shack, observed Plaintiff being attacked in the recreation yard but did not leave the shack to assist him-is “pure baseless speculation specifically denied by the officers” and is “unsupported by any facts.” (ECF No. 215-4, Nassau County Defs. Mem. of Law at 17.) In support of their assertions, Defendants Hollingshead and James submit their deposition testimonies. (Id. at 18; ECF No. 188-44, Ex. 55; ECF No. 188-39, Ex. 50.) They contend that neither defendant saw the assault nor learned of the assault until the end of the recreation period.
(Id.) Plaintiff counters that the assault was “long enough and close enough” to Defendants that Defendants Hollingshead and James were “at least reckless in failing to notice” it, and also cites the Model Instructions’ provision that staff must remain within “earshot” of inmates during periods of active supervision, such as when inmates are in a recreation yard. (ECF No. 215-11, Pl. Memo in Opp. at 20-21; ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 133; ECF No. 189-18, Ex. 64 at 6.) Plaintiff also cites the provision of the Model Instructions that states that “[s]upervision cannot be met by staying behind an officer‘s work station.” (ECF No. 189-18, Ex. 64 at 6.)
Whether Defendants failed to intervene involves disputed facts that cannot be resolved by the Court at summary judgment. The parties agree that Defendants Hollingshead and James were in the shack in the recreation yard, and it is undisputed that the shack was see-through with plexiglass walls and overlooked the entire yard. (ECF No. 184-1, County Defs. 56.1 at ¶ 23; ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶ 23; County Defs. Reply 56.1 at ¶ 270.) The parties, however, dispute (1) the extent to which Defendants Hollingshead and James could see detainees in the yard from the shack; (2) whether they saw anything about the attack; and (3) when they responded to Plaintiff. (ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶¶ 27, 232; ECF No. 188-40, Ex. 51, at 80:18-81:3, 81:25-82:12; ECF No. 184-1, County Defs. 56.1 at ¶ 27.)
Thus, there are genuine disputes of fact as to whether Defendants Hollingshead and James had “adequate time to assess a serious threat” against Plaintiff before and during the attack, and whether they had time to intervene. McDaniel, 2022 WL 421122, at *10; see also Rosen, 667 F. Supp. 2d at 360 (summary judgment denied where factual disputes existed as to “what, if anything, [defendant] saw of the fight” and “how long [defendant] was watching the fight, and whether he had a reasonable opportunity to intervene“).
Nassau County Defendants contend that qualified immunity bars Plaintiff‘s failure to intervene claim against Defendants Hollingshead and James. It has long been “clearly established” that a constitutional violation occurs where correctional officers stand by and allow an inmate-on-inmate attack to proceed without interference. See Davidson v. Cannon, 474 U.S. 344, 348 (1986) (distinguishing meritless
Accordingly, summary judgment is denied as to Plaintiff‘s failure to intervene claim against Defendants Hollingshead and James.
C. Supervisory Liability
Plaintiff asserts a claim of supervisory liability against Defendant Sposato
Previously, courts in the Second Circuit relied on the factors set forth in Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995), to determine personal involvement for purposes of supervisory liability.39 The Second Circuit recently clarified in Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020), that the Supreme Court‘s ruling in Ashcroft v. Iqbal, 556 U.S. 662 (2009), requires that there be no “special rule for supervisory liability.” 983 F.3d at 612. A plaintiff must plead that “each Government-official defendant, through the official‘s own individual actions, has violated the Constitution,” and thus must establish the constitutional violation against a supervisory official directly. Id. at 612, 616 (citation omitted).
Therefore, to establish supervisory liability for a
Plaintiff, however, also argues that Defendant Sposato knew or should have known of violent attacks against NCCC detainees by other detainees and corrections officers. Post-Tangreti, district courts in the Circuit have determined that personal involvement still may be established for a supervisory defendant if he or she “created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom.” Stone #1 v. Annucci, No. 20-CV-1326 (RA), 2021 WL 4463033, at *8 (S.D.N.Y. Sept. 28, 2021); see also Brunache v. Annucci, No. 22-CV-196 (JLS), 2023 WL 146850, at *12 (W.D.N.Y. Jan. 9, 2023); Latimer v. Annucci, No. 21-CV-1275 (VB), 2022 WL 1137055, at *3 (S.D.N.Y. Apr. 18, 2022); Swinson v. City of New York, No. 19-CV-11919 (KPF), 2022 WL 142407, at *7 (S.D.N.Y. Jan. 14, 2022). This is because an “individual who creates a policy or custom whereby the constitution is violated . . . is more directly and personally involved in the constitutional violation than someone who is only negligent in his supervision of the official committing the underlying offense.” Stone, 2021 WL 4463033 at *8. Thus “where a plaintiff can establish that a senior official promulgated an unconstitutional policy with a culpable mental state . . . such official could be deemed to be personally involved in a constitutional violation.” Id.
Accordingly, this Court must assess if there is a genuine issue of material fact as to whether Defendant Sposato created or continued an unconstitutional policy, practice, or custom and did so with deliberate indifference. Darnell, 849 F.3d at 35. In other words, the Court must examine whether Plaintiff has established genuine disputes of material fact that could create (1) an inference that Defendant Sposato knew or should have known of a serious risk of harm or injury to detainees; and (2) an inference that Defendant Sposato intentionally or recklessly disregarded that risk by failing to enact adequate policies and practices to protect against it. See Myers ex rel. Myers v. Davenport, No. 21-CV-0922 (LEK) (CFH), 2022 WL 3017367, at *7 (N.D.N.Y. July 29, 2022) (finding facts sufficient to allege supervisory liability claim for
Plaintiff has established sufficient disputed material facts to meet the forgoing standard. Defendant Sposato testified in his deposition that he was briefed on any use of force by inmates against other inmates or corrections officers, pursuant to a policy change that he had implemented, because, inter alia, “there were always lawsuits and stuff. You get lawsuits and you want to know.” (ECF No. 188-43, Ex. 54 at 81:09-81:22, 88:09-88:17, 89:20-89:25.) Record evidence also shows that there were at least 11 lawsuits filed against the County in which pretrial detainees alleged that they were assaulted while in custody at NCCC, either by other detainees or by corrections officers. (See ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶¶ 106-116, 118, 120, 123.) Further, the news articles submitted by Plaintiff, although inadmissible for the truth of the matters asserted, establish that Defendant Sposato was or should have been on notice of a significant number of complaints of assaults, including slashings of detainees. Cf. Edwards v. City of New York, No. 14-CV-10058 (KBF), 2015 WL 5052637, at *6 (S.D.N.Y. Aug. 27, 2015) (explaining that plaintiff‘s “news articles and eighteen prior lawsuits plausibly demonstrate” that policymakers had knowledge of a situation within a prison); (see ECF No. 21, Exhibit 24; ECF No. 22, Exhibit 25; ECF No. 34, Exhibit 46.) Indeed, Defendant Sposato testified in his deposition that corrections officers at NCCC “very rarely” found weapons after an inmate assault, and that he knew that failing to find such weapons had “security implications for inmates.” (ECF No. 188-43, Ex. 54 at 131:10-131:23, 131:24-132:06.) Based on the evidence before the Court, a rational juror could resolve factual disputes in Plaintiff‘s favor and find that Defendant Sposato knew or should have known of a serious risk of harm or injury to detainees.
Additionally, there is enough evidence to support an inference that Defendant Sposato intentionally or recklessly disregarded that risk of serious harm by failing to enact adequate policies and practices to protect against it. Defendant Sposato testified in his deposition that he had final policymaking authority at NCCC as acting Sheriff and Sheriff and that “every county has their own policies, their own rules.” (ECF No. 188-43, Ex. 54 at 32:22-32:24,
Accordingly, summary judgment is denied as to Plaintiff‘s supervisory liability claim against Defendant Sposato.
D. Municipal Liability
To establish a municipal liability claim, a plaintiff must establish three elements: “(1) an official policy or custom that (2) caused him to be subjected to (3) a denial of a constitutional right.” Torcivia v. Suffolk Cnty., 17 F.4th 342, 355 (2d Cir. 2021) (alterations omitted) (quoting Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007)). To establish an official policy or custom, a plaintiff must prove either “(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.” McDonald v. City of New York, No. 20-CV-4614 (MKB), 2022 WL 1469395, at *4 (E.D.N.Y. May 10, 2022) (citations omitted). A policy “may be pronounced or tacit” and “reflected in either action or inaction.” Lucente, 980 F.3d at 297 (internal quotation marks omitted). Inaction rises to the level of policy “where a local government is faced with a pattern of misconduct and does nothing, compelling the conclusion that the local government has acquiesced in or tacitly authorized its subordinates’ unlawful actions.” Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007).
Plaintiff argues that four policies, practices, and customs create liability for the County for the deprivation of his constitutional rights: (i) [a widespread practice of] ‘supervising’ the recreation yard by having officers sit in the [recreation yard] shack; (ii) [a widespread practice of] failing to properly investigate assaults; (iii) [a widespread practice of] maintaining a secret classification system to mark disfavored detainees; and (iv) failing to supervise and discipline officers.” (ECF No. 215-11, Pl. Mem. at 21.) Nassau County Defendants counter that Plaintiff only made “bare assertions with no supportive facts” and cannot establish a “causal link” between any custom or policy and the alleged constitutional
i. Failure to Adequately Supervise Recreation Yard
“To demonstrate a de facto policy or custom through a widespread practice, a plaintiff must show that the policymaker was aware of a subordinate‘s unconstitutional actions, and consciously chose to ignore them, effectively ratifying the actions.” Rodriguez v. City of New York, 607 F. Supp. 3d 285, 292 (E.D.N.Y. 2022) (internal quotation marks and citation omitted).
There are numerous disputed facts as to whether Defendant Sposato, de facto policymaker for NCCC, was aware of and consciously ignored the practice of officers supervising the NCCC recreation yard by remaining in the plexiglass shack, amounting to a widespread practice sufficient to establish municipal liability on behalf of the County. Defendant James testified that he generally walked around the yard “every 15 to 30 minutes, possibly.” (ECF No. 188-44, Ex. 55 at 50:17-51:08.) Other officers testified that corrections officers typically stayed in the shack while supervising the recreation yard. (See ECF No. 188-46, Ex. 58 at 97:08-97:18; ECF No. 188-48, Ex. 60 at 93:03-94:12). Plaintiff asserts that remaining in the shack during the entire recreation period counters New York‘s minimum standards, as described in the Model Instructions, requiring “active supervision” of inmates wherever inmates have “immediate access” to other inmates, such as in a recreation yard. (ECF No. 189-4, Ex. 6 at 12-13; No. 215-11, Pl. Mem. at 25). Even assuming this practice was contrary to state minimum standards, that does not necessarily make it unconstitutional.
Plaintiff, however, argues that even if the practice of sitting in the shack during recreation is not itself unconstitutional, supervisory knowledge of the lack of “active supervision” and indifference to the risk of attacks and actual attacks in the recreation yard “may be highly probative” as to municipal liability in the context of other evidence showing unconstitutional conduct. (ECF No. 215-11, Pl. Mem. at 25 (quoting Lucente, 980 F.3d at 305)). Plaintiff has provided evidence that a rational juror could resolve in his favor to establish that the County-through NCCC policymaker Defendant Sposato-was aware of a widespread practice of lack of “active supervision” that posed a serious risk to detainees in the recreation yard, including Defendant Sposato‘s testimony that all inmate assaults were reported to him, and evidence of numerous lawsuits arising from alleged assaults on and by inmates at NCCC that occurred in areas of “active supervision.” (ECF No. 188-43, Ex. 54 at 81:09-81:22, 88:09-88:17, 89:20-89:25). A rational juror could conclude that the County had notice of an ongoing failure to protect inmates at NCCC from the risks of serious harm resulting from a lack of policies and practices regarding active supervision, including in the recreation yard, but “consciously chose to ignore” it, given Defendant Sposato‘s testimony that he instituted new policies only when it was “something [he] felt we needed to do” and at least two corrections officers’ testimony that they did not always engage in “active supervision” in the recreation yard. (See ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶¶ 106-116, 118, 120, 123; ECF No. 188-43, Ex. 50 at 51:15-52:04, 52:14-52:19; See ECF No. 188-46, Ex. 58 at 97:08-97:18; ECF No. 188-48, Ex. 60 at 93:03-94:12.) Accordingly, the Court finds sufficient evidence in the record to create a genuine dispute of material fact as to whether there was a practice of failing to engage in “active supervision“-leading to a constitutional failure to protect inmates from assaults-that was sufficiently widespread, but which the
ii. Failure to Adequately Investigate Assaults
Plaintiff also raises genuine disputes of material fact in support of the County‘s municipal liability based on a failure to properly investigate inmate assaults. This claim, although framed as a municipal policy (or lack thereof), is fairly construed to articulate a claim that the County was aware of and ignored a widespread practice or custom of constitutionally inadequate investigations of inmate assaults and allowed the assaults to continue unabated. Construing factual disputes in Plaintiff‘s favor, the record evidence shows that (1) after Plaintiff was assaulted, his housing unit and the recreation yard were not searched until two hours after the attack, and inmates who had been in the yard were returned to their units without being searched (ECF No. 188-46, Ex. 58 at 194:6-194:25; ECF No. 197-21, Ex. U at 49); (2) CIU, a department in the Sheriff‘s Office assigned to conduct the investigation, did not appear to investigate the assault (ECF NO. 46, Ex. 58 at 216:22-217:22, 219:20-221:03); and (3) an investigation into the assault against Plaintiff did not begin until over 24 hours after the attack occurred (ECF No. 46, Ex. 58 at 219:20-221:02). Further, if factual disputes are resolved by a jury in favor of Plaintiff, the record establishes that (1) Defendant Sposato testified that an investigation should be carried out any time an inmate claimed they were assaulted or slashed, but there is no evidence that he, as the County‘s policymaker for NCCC, implemented practices or procedures to adequately investigate assaults (ECF No. 188-43, Ex. 54 at 93:07-93:14); (2) Sergeant Bertin, the housing unit supervisor at NCCC, did not know of any formal policy that described how to investigate an inmate assault (ECF No. 188-46, Ex. 58 at 121:11-121:18; 143:16-144:1); (3) any procedure for such an investigation instead was learned on-the-job or through a supervisor‘s directions (ECF No. 188-46, Ex. 58 at 121:11-121:18); (4) Sergeant Bertin could not recall even one instance in which he recovered contraband, such as a weapon, after an investigation into an inmate assault, which suggests that practices and procedures were inadequate (ECF No. 188-46, Ex. 58 at 150:06-150:20); and (5) Defendant Sposato testified that corrections officers at NCCC “very rarely” found weapons after an assault, which a jury could find established constitutionally inadequate procedures to protect NCCC detainees (ECF No. 188-43, Ex. 54 at 131:10-131:23). Indeed, Defendant Sposato acknowledged in his testimony that NCCC‘s failure to find weapons used in an assault could have “security implications for inmates.” (Id. at 131:24-132:6.) Finally, the record shows that assaults and slashings were required to be reported to the “State Commission of Corrections,” and that numerous lawsuits were filed against the County regarding inmate assaults at NCCC, many of which alleged the use of contraband weapons in the assault. (Id. at 94:14-94:19; ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶¶ 106-116, 118, 120, 123.) Therefore, the Court finds sufficient evidence in the record to create a genuine dispute of material fact as to whether there was a practice of inadequate investigations of inmate assaults-leading to a constitutional failure to protect inmates from assaults and the use of contraband in assaults-that was “so persistent or widespread as to constitute a custom or usage with the force of law” of which the County must have been aware. Okin v. Vill. of Cornwall-On-Hudson Police Dep‘t, 577 F.3d 415, 440 (2d Cir. 2009) (alterations, internal quotation marks, and citation omitted).
The same cannot be said regarding Plaintiff‘s allegations about the unofficial hash mark classification system. Although there is evidence that at least some of the corrections officers knew about the hash mark classification system, there is no evidence in the record that Defendant Sposato-or through him, the County-was aware of the unofficial hash mark classification system to identify inmates who had assaulted corrections officers. (ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶¶ 162-63; ECF No. 188-45, Ex. 57 at 24; ECF No. 188-44, Ex. 55 at 70:05-71:18.)
iv. Failure to Train
Plaintiff also argues for municipal liability on the basis that the corrections officers’ failure to protect or intervene was a result of a failure to train by the County.40 To establish municipal liability under a failure to train theory, Plaintiff must establish that the County‘s failure to train its employees “is so obvious, and the inadequacy of current practices so likely to result in a deprivation of federal rights, that the [County] can be found deliberately indifferent to the need.” Reynolds, 506 F.3d at 192 (citation omitted.) To do so, Plaintiff must “identify a specific deficiency in the . . . training program and establish that [the] deficiency is ‘closely related to the ultimate injury,’ such that it ‘actually caused’ the constitutional deprivation.” Tate, 2017 WL 10186809, at *13 (quoting Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 129 (2d Cir. 2004)).
Plaintiff has met his burden for the failure to train claim. Plaintiff has established material disputed facts as to whether the training for corrections officers was deficient in preventing or responding to inmate assaults. Multiple corrections officers testified that there was no ongoing training (other than initial training at the academy) for preventing or responding to inmate assaults, or if there was, they could not recall it. (ECF No. 188-44, Ex. 55 at 23:18-21:23, 128:07-158:12; ECF No. 188-41, Ex. 52 at 49:03-49:13; ECF No. 188-39, Ex. 50 at 15:10-15:22, 59:06-59:18.) There was no staff handbook that listed NCCC policies or procedures regarding the prevention of inmate assaults, if officers chose to seek out additional training on such policies for themselves, and policies and procedures were not posted in break areas for corrections officers. (ECF No. 188-41, Ex. 52 at 24:16-25:03; 26:06-26:07.) Though corrections officers could access NCCC policies on a computer, there was no search function, and they would have to read through all policies to find guidance and train themselves on the issue they sought out. (Id. at 26:08-28:19.) At least one NCCC official was “unaware” if there was anyone on staff at NCCC who could train a corrections officer who had questions about a particular policy or procedure. (Id. at 27:13-27:20.)
Plaintiff also establishes sufficient disputed facts concerning causation, or whether the lack of ongoing training “actually caused” the constitutional violations of failure to protect and intervene. Amnesty Am., 361 F.3d at 129. Plaintiff has provided more evidence than “the mere fact that the misconduct occurred in the first place“; as noted above, multiple corrections officers testified to a lack of specific ongoing training on preventing and responding to inmate assaults, and there is a disputed issue of fact as to whether anyone at NCCC could respond to corrections officers’ questions. Id. at 130. Further, the specific deficiency that Plaintiff identifies-that there was no training about inmate assaults-is “closely related” to Plaintiff‘s ultimate injury, stemming from failing to protect inmates and failing to intervene in an inmate assault. Tate, 2017 WL 10186809, at *13. A rational factfinder could conclude that the corrections’ officers actions in failing to protect or intervene occurred as a result of training deficiencies.
v. Failure to Supervise
Plaintiff also has provided sufficient evidence establishing genuine factual disputes regarding municipal liability on the basis of failure to supervise. A failure to supervise occurs where “the need for more or better supervision to protect against constitutional violations was obvious, but [the County] made no meaningful attempt to forestall or prevent the unconstitutional conduct.” Tate, 2017 WL 10186809, at *13 (quoting Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995)). Such inaction “may constitute an official policy or custom if the failure amounts to ‘deliberate indifference’ to the rights of those with whom the [municipal] employees interact.” Wray, 490 F.3d at 195. Deliberate indifference occurs where “defendants knew to a moral certainty that the [County] would confront a given situation; the situation presented the [County] with a difficult choice or there was a history of its mishandling the situation; and the wrong choice by the [County] would frequently cause the deprivation of plaintiffs’ rights.” Reynolds, 506 F.3d at 192.
Plaintiff has provided sufficient evidence, from which a jury could resolve disputes in his favor, that the County “had notice of a potentially serious problem of unconstitutional conduct, such that the need for corrective action or supervision was ‘obvious‘.” Vann, 72 F.3d at 1049. One corrections officer testified that there were “so many assaults [on inmates] throughout the week” that he could not keep track of them, and Defendant James testified that there were assaults at least several times a year, sometimes as often as “weekly.” (ECF No. 188-42, Ex. 53 at 96:23-96:09; ECF No. 188-44 at 26:21-27:10.) These assaults on inmates were reported to Defendant Sposato, the final policymaker for the County in his role as Acting Sheriff and Sheriff. (ECF No. 188-43, Ex. 54 at 32:22-32:24, 81:14-81:19.) Defendant Sposato actively changed the policy to require that “all uses of force be reported to the Sheriff.” (Id. at 88:09-88:17). The County was also aware of at least 11 lawsuits alleging assaults on inmates between October 2006 and February 2016. See Vann, 72 F.3d at 1049 (stating that an “obvious need may be demonstrated through proof of repeated complaints of civil rights violations“). A rational juror could find from this evidence that the County knew to a moral certainty of the assaults on inmates and that the “need for more or better supervision to protect against constitutional violations was obvious.” Id.
Similarly, a rational juror could also find that, rather than address the obvious need for closer supervision, the County failed to take meaningful action. Defendant Sposato, the County‘s policymaker for NCCC, testified that the creation of new policies while he was Acting Sheriff or Sheriff was “very rare” and occurred only when he got guidance from the state or it was “something
Plaintiff also has established genuine disputes of fact as to whether the County knew “to a moral certainty” that NCCC officers would face inmate assaults, and that there was a history of, at the least, allegations that the County had previously mishandled such situations. Cf. Edwards, 2015 WL 5052637, at *6 (explaining that plaintiff‘s “news articles and eighteen prior lawsuits plausibly demonstrate that policymakers knew to a moral certainty that DOC officers routinely confront situations in which detainees provoke them and that there is a history of DOC officers mishandling such situations by responding with excessive force“). A jury could reasonably infer that the failure to supervise corrections officers and staff would cause “frequent constitutional deprivations,” Rodriguez, 607 F.Supp.3d at 295, especially given evidence in the record that some corrections officers at NCCC encouraged detainees to attack other detainees. (See ECF No. 188-40, Ex. 51 at 171:04-173:06.)
Accordingly, Plaintiff presents genuine issues of material fact as to whether the County is subject to municipal liability on a theory of widespread practice and custom, a theory of failure to train, and a theory of failure to supervise. Summary judgment is therefore denied as to Plaintiff‘s claim against the County for municipal liability.
CONCLUSION
For the forgoing reasons, the Court ORDERS as follows:
- Defendant Ryan‘s motion for summary judgment is GRANTED as to the failure to intervene claim against Defendant Ryan but is DENIED as to the failure to protect claim against Defendant Ryan.
- Nassau County Defendants’ motion for summary judgment is GRANTED as to the failure to protect claim against Defendant James, but is DENIED as to the failure to protect claim against Defendant Hollingshead.
- Nassau County Defendants’ motion for summary judgment is DENIED as to the failure to intervene claims against Defendant James and Defendant Hollingshead.
- Nassau County Defendants’ motion for summary judgment is DENIED as to the supervisory liability claim against Defendant Sposato.
- Nassau County Defendants’ motion for summary judgment is DENIED as to the municipal liability claim against the County, on theories of widespread practice or custom; failure to train; and failure to supervise.
SO ORDERED
Dated: March 11, 2023
Brooklyn, New York
HON. KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
Notes
Q: Is there a policy in place that lays out the steps that a building sergeant should take to investigate an inmate assault?
A: Not that I know of.
Q: Okay. So this is another thing at NCCC that would be learned on the job?
Plaintiff‘s Counter Rule 56.1 Statement includes details concerning lawsuits and alleged assaults on NCCC detainees. (See ECF No. 186, Pl. Resp. County Defs. 56.1 at ¶¶ 106-123.) To support these factual statements, Plaintiff cites to the complaint filed in each case, as well as news articles. (Id.) To each of those factual statements, Nassau County Defendants state the following: “Disputed, and neither relevant nor material. The statement is a recitation of allegations only; there has been no finding of fact establishing this allegation.” (See ECF No. 196, County Defs. Reply 56.1 at ¶¶ 106-116, 118, 120, 123.) Defendant Ryan states the following to each factual statement:
Defendant can neither confirm or deny this fact. Defendant objects to this statement in that it is neither material as required by Local Rule 56.1, nor relevant. Additionally, Local Rule 56.1 requires the moving party to list material facts not in dispute, Plaintiff has merely regurgitated the allegations contained in his amended complaints. This is a clear violation of Rule 56.1 and a waste of the Court‘s time.
(See ECF No. 194, Def. Ryan Reply 56.1 at ¶¶ 106-116, 118, 120, 123.)
The Court notes that complaints and news articles generally are not considered admissible evidence for the purpose of supporting or opposing a motion for summary judgment. See Henek v. CSC Holdings, LLC, 449 F. Supp. 3d 35, 38 n.2 (E.D.N.Y. 2020) (collecting cases); Outerbridge v. City of New York, No. 13 CIV. 5459 (AT), 2015 WL 5813387, at *4 (S.D.N.Y. Sept. 30, 2015) (“It is well-established that “newspaper articles offered for the truth of the matters asserted therein are inadmissible hearsay that may not be considered by the Court in deciding a motion for summary judgment.”).
Here, however, although the news articles and complaints are inadmissible to prove the truth of the matters asserted, they may be admissible to establish that Defendants had notice of the articles and lawsuits alleging assaults on NCCC inmates. See generally Fiacco v. City of Rensselaer, 783 F.2d 319, 328 (2d Cir. 1986) (“Whether or not the claims had validity, the very assertion of a number of such claims put the City on notice.”). The factual statements therefore are material and relevant to Plaintiff‘s claim against the County for deliberate indifference to Plaintiff‘s constitutional rights by failing to train and supervise its employees. As discussed below, a plaintiff must establish for such a claim “that the need for more or better supervision to protect against constitutional violations was obvious“; further, that “obvious need may be demonstrated through proof of repeated complaints of civil rights violations.” Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995). The Court discusses the legal elements of this claim in detail below, including whether the complaints and news articles cited to by Plaintiff are sufficient to establish notice.