The opinion of the court was delivered by: Hurd, United States Magistrate Judge.
Plaintiff, Eugene Baker ("Baker" or "plaintiff") commenced this action
on August 11, 1997, against the defendants as a result of injuries
sustained while he was an inmate at the Warren County Jail in Lake
George, New York. Baker asserts causes of action under 42 U.S.C. § 1983
and 1988, the First, Fourth, Fifth, and Fourteenth Amendments, and a
pendent state law claim. The defendants have moved for summary judgment
pursuant to Fed. R.Civ.P. 56. This matter was submitted for decision
without oral argument.
The following is most favorable to the nonmoving plaintiff. On April
29, 1996, Baker was sitting on a metal table, his feet not touching the
ground, watching television from a catwalk adjacent to his cell. When
defendant Sheldon Willett ("Willett"), a corrections officer employed by
the defendant Warren County Sheriffs Department, stood in front of the
screen, an unidentified inmate called Willett a "fat boy" and demanded
that he move out of the way. Willett subsequently stopped in front of
Baker, who told Willett, "Keep going fat boy." Willett left to continue
his rounds of the jail, returning several minutes later. Baker was
conversing with another inmate and did not notice Willett return. When
Baker was not looking, Willett pushed him in the back, causing him to
fall off of the table and strike his head on the metal bars of his cell
approximately four to five feet away from where he had been sitting.
Plaintiff sustained a laceration on his forehead which required sutures.
Willett completed an incident report that evening. The division commander
informed Undersheriff Larry Cleveland ("Undersheriff Cleveland") of the
incident. Undersheriff Cleveland reviewed the incident and spoke to both
Baker and Willett. No formal investigation was conducted and Willett was
The causes of action alleged against Willett, in his individual and
official capacities, are for excessive use of force and assault and
battery; and against the defendants County of Warren ("County") and the
Warren County Sheriffs Department are for deliberate indifference as a
result of negligent training and supervision of personnel.*fn1
Defendants' motion asserts that there is no basis for municipal
liability, that Willett did not use excessive force, and that he is
entitled to qualified immunity. In addition, defendants claim that
plaintiffs pendent state claim for assault and battery is barred by the
Statute of Limitations because plaintiff did not file a notice of claim
within ninety days, and did not file suit within one year and ninety days
of the alleged conduct which is the subject of his complaint. Plaintiff
opposes the motion.
A. Summary Judgment Standard
Summary judgment must be granted when the pleadings, depositions,
answers to interrogatories, admissions, and affidavits show that there is
no genuine issue as to any material fact, and that the moving party is
entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56;
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580
(2d Cir. 1991). The moving party carries the initial burden of
demonstrating an absence of a genuine issue of material fact.
Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d
Cir. 1990). Facts, inferences therefrom, and ambiguities must be viewed
in a light most favorable to the nonmovant. Matsushita Elec. Indns. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986); Project Release v. Prevost., 722 F.2d 960, 968 (2d Cir. 1983).
When the moving party has met the burden, the non-moving party "must do
more than simply show that there is some metaphysical doubt as to the
material facts." Matsushita Elec. Indns. Co., 475 U.S. at 586, 106 S.Ct.
1348. At that point, the non-moving party "must set forth specific facts
showing that there is a genuine issue for trial." Fed.R.Civ.P. 56:
Liberty Lobby Inc., 477 U.S. at 250, 106 S.Ct. 2505; Matsushita Elec.
Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348. To withstand a summary
judgment motion, evidence must exist upon which a reasonable jury could
return a verdict for the nonmovant. Liberty Lobby, Inc., 477 U.S. at
248-249, 106 S.Ct. 2505; Matsushita Elec. Indus. Co., 475 U.S. at 587,
106 S.Ct. 1348. Thus,
summary judgment is proper where there is "little or no evidence in
support of the non-moving party's case." Gallo v. Prudential Residential
Serv's., 22 F.3d 1219, 1223-1224 (2d Cir. 1994) (citations omitted).
B. Excessive Use of Force Claim against Willett
The Eighth Amendment prohibits "the unnecessary and wanton infliction
of pain." Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d
251 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909,
49 L.Ed.2d 859 (1976)). When prison officials are accused of using
excessive force, the standard is "whether [the] force was applied in a
good faith effort to maintain or restore discipline or maliciously and
sadistically for the very purpose of causing harm." Whitley v. Albers,
475 U.S. 312, 320-21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (quoting
Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied,
414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)). Conduct must be
"`inconsistent with contemporary standards of decency' and `repugnant to
the conscience of mankind'" to be actionable under the Eighth Amendment.
Id. at 327, 106 S.Ct. 1078 (quoting Estelle, 429 U.S. at 103, 106, 97
S.Ct. 285). Five factors relevant in determining whether officers acted
maliciously are: The need for force, the relationship between the need
and the amount of force used, the extent of the injury suffered, the
extent of the threat to the safety of staff and inmates, and any efforts
made to temper the severity of a forceful response. See id. at 321, 106
S.Ct. 1078 (citing Glick, 481 F.2d at 1033); see also Hudson v.
McMillian, 503 U.S. 1, 7, 112 S.Ct. ...