The Court notes with disapproval that the Defendants through
their attorneys, Alan D. Sheinkman, the Westchester County
Attorney, and Thomas J. Schrempf, Assistant County Attorney of
Counsel, not only fail to acknowledge this split in authority but
go so far as to affirmatively represent that the courts within
the Southern District of New York have "routinely" held that the
exhaustion requirement applies to excessive force claims. That
representation, inaccurate to the point of being unethical, is
especially problematic where, as here, the Defendants' adversary
is pro se. A continuation of such conduct would be sanctionable.
Turning to the merits of the exhaustion question, the reasoning
of those courts which have found that the exhaustion requirement
to an Eighth Amendment claim for excessive force is persuasive
and is adopted herein. See, e.g., Carter v. Kiernan, No. 98 Civ.
2664, 1999 WL 14014, at *2-*5 (S.D.N.Y. Jan. 14, 1999)
(exhaustion requirement does not apply to excessive force
claims); Baskerville, 1998 WL 778396, at *2-*5 (same); but see,
e.g., Cuoco v. U.S. Bureau of Prisons, No. 98 Civ. 9009, 2000 WL
347155, at *4-*6 (S.D.N.Y. March 31, 2000) (exhaustion
requirement applies to excessive force claims); Beeson v.
Fishkill Correctional Facility, 28 F. Supp.2d 884, 892 (S.D.N.Y.
Warren contends that exhaustion is not required because the
remedy he seeks, monetary damages, is not authorized under the
applicable administrative procedures and therefore is not
"available" within the meaning of Section 1997e(a). The
Defendants oppose this argument.*fn7 This issue need not be
resolved, however, because as just explained Section 1997e(a)
does not apply to Warren's excessive force claim.
II. The Summary Judgment Motion Is Granted
A. The Standard For Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides
that a motion for summary judgment may be granted when "there is
no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." The Second
Circuit has repeatedly noted that "as a general rule, all
ambiguities and inferences to be drawn from the underlying facts
should be resolved in favor of the party opposing the motion, and
all doubts as to the existence of a genuine issue for trial
should be resolved against the moving party." Brady v. Town of
Colchester, 863 F.2d 205, 210 (2d Cir. 1988) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 330 n. 2 (1986) (Brennan, J.,
dissenting)); see Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d
Cir. 1995); Burrell v. City Univ., 894 F. Supp. 750, 757
(S.D.N.Y. 1995). If, when viewing the evidence produced in the
light most favorable to the non-movant, there is no genuine issue
of material fact, then the entry of summary judgment is
appropriate. See Burrell, 894 F. Supp. at 758 (citing Binder v.
Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991)).
Materiality is defined by the governing substantive law. "Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). "[T]he mere existence of factual
issues — where those issues are not material to the claims
before the court — will not suffice to defeat a motion for
summary judgment." Quarles v. General Motors Corp., 758 F.2d 839,
840 (2d Cir. 1985).
While all reasonable ambiguities and inferences should be
resolved against the moving party, those inferences must be
supported by affirmative facts and must be based on relevant,
admissible evidence. See Fed.R.Civ.P. 56. A party seeking to
defeat a summary judgment motion cannot "`rely on mere
speculation or conjecture as to the true nature of facts to
overcome the motion.'" Lipton v. Nature Co., 71 F.3d 464, 469 (2d
Cir. 1995) (citation omitted).
These standards apply where the plaintiff is pro se, however,
the court should read the submissions of a pro se litigant
"liberally and `interpret them to raise the strongest arguments
they suggest.'" McPherson v. Coombe, 174 F.3d 276, 279 (2d Cir.
1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.
B. There Is No Liability On The Part Of The Municipality
Or The Individual Defendants In Their Official Capacity
Although Warren has not specifically named the County of
Westchester as a defendant he has named the Individual Defendants
in their official capacities. Warren is therefore deemed to have
named the municipality as a defendant because "[t]he real party
in interest in an official-capacity suit is the governmental
entity and not the named official." Hafer v. Melo, 502 U.S. 21,
25 (1991); see also Goldberg v. Town of Rocky Hill, 973 F.2d 70,
73 (2d Cir. 1992).
Since a municipality can only act through its employees, the
question of its liability under Section 1983 turns on whether it
can be held liable for any unconstitutional conduct of those
employees.*fn8 Municipal liability under Section 1983 cannot be
based on a theory of respondeat superior. See Board of the County
Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397,
404-5 (1997). Rather, the Section 1983 plaintiff must show that
the constitutional violation by a municipal employee resulted
from a custom, policy, or practice of the municipality. See
Hafer, 502 U.S. at 25 (citations omitted); Monell v. New York
City Dept. of Social Services, 436 U.S. 658, 694 (1978)); Vann v.
City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995).
A municipal custom, policy, or practice may be shown by
establishing that an official who is a final policymaker directly
committed or commanded the constitutional violation, or by
showing that a policymaker indirectly caused the misconduct of a
subordinate municipal employee. See Monell, 208 F.2d at 60;
Pembauer v. City of Cincinnati, 475 U.S. 469, 483-84 (1986);
Jeffes v. Barnes, 208 F.3d 49, 61 (2d Cir. 2000). Liability based
on indirect causation can be established by showing
"`acquiescence in a longstanding practice or custom which
constitutes the `standard operating procedure' of the local
governmental entity,'" see Jeffes, 208 F.3d at 61 (citation
omitted), or a failure by policymakers to train or supervise
their subordinates amounting to "deliberate indifference" to the
rights of those who come in contact with the municipal employees,
see City of Canton v. Harris, 489 U.S. 378, 388 (1989).
It is undisputed that none of the Individual Defendants are
policymakers within the County government. Nor does Warren
premise his claim on the theory that County policymakers directly
committed or commanded the use of excessive
force.*fn9 Instead, Warren contends that the use of excessive
force is so widespread within the Westchester County Jail that
it rises to the level of a custom in which the municipality has
Warren avers that he "will demonstrate" this alleged municipal
practice at trial by eliciting testimony from inmates named in
his Brutality List. The Brutality List consists of names of other
inmates at Westchester whom Warren alleges were victims of
excessive force. Warren explained in his deposition that he based
his list either on his own conversations with the inmates named
or on conversations with other inmates who said the named inmates
had been the victim of force at the hands of a Westchester County
Neither the Brutality List nor Warren's deposition testimony
are sufficient to meet Warren's evidentiary burden to defeat a
motion for summary judgment. Both the list and testimony by
Warren as to incidents involving other inmates, based on accounts
by those inmates or on third-hand accounts from still other
inmates, would be inadmissible hearsay at trial if offered to
prove those incidents occurred. Thus, Warren essentially offers
nothing more than his own conjecture as to what the evidence at
trial "will demonstrate." Speculation and conjecture, however,
are not sufficient to defeat a motion for summary judgment. See
Lipton, 71 F.3d at 469.
Warren could have submitted sworn declarations or affidavits by
the inmates identified in his Brutality List as to the incidents
in question. Such statements could have been considered in
deciding this summary judgment motion because, although the
statements themselves would be hearsay if offered at trial, such
statements are evidence of what the declarants or affiants will
testify at trial. Warren failed, however, to submit any such
material. This failure cannot be excused on the ground that he is
pro se because he was properly notified pursuant to Local Rule
56.2 as to the need to submit evidence, such as witness
statements and documents, in order to defeat the Defendants'
summary judgment motion.
Thus, although the Defendants' insistence that Warren can only
prevail if he witnessed the incidents involving other inmates
first hand is manifestly incorrect, Warren has nonetheless failed
to meet his burden to show evidence of a widespread practice of
excessive force at the jail.
Warren's papers also reference a "fail[ure] to supervise" on
the part of the County as a basis for municipal liability. He has
offered no evidence, however, of such a failure, and the mere
recitation of this allegation is not sufficient. See Oklahoma
City v. Tuttle, 471 U.S. 808, 832 (1985) (Section 1983 plaintiff
alleging failure to supervise or train must put forward evidence
that municipality has acted or consciously not acted in this
regard); Walker v. City of New York, 974 F.2d 293, 296 (2d Cir.
1992) (same). Nor will a single incident, especially if it only
involves actors below the policymaking level, generally suffice
to raise an inference of a policy of inadequate supervision or
training. See Tuttle, 471 U.S. at 830; Dwares v. City of New
York, 985 F.2d 94, 100 (2d Cir. 1993). Indeed, the highest
ranking officer involved in the January 14 incident, Sergeant
Orlando, acted appropriately by trying,
as Warren put it, to "get the situation under control".
Therefore, Warren's claims against the County and the
Individual Defendants in their official capacity must be
C. There Is No Personal Liability On The Part Of
The Individual Defendants
Warren has also sued the Individual Defendants in their
individual or personal capacity. Even where the municipality is
not liable, and its employees are not liable in their official
capacity, those employees may be personally liable under Section
1983 for their unconstitutional conduct. See Hafer, 502 U.S. at
25-26. As explained below, however, Warren has not met his burden
to sustain the claims against the Individual Defendants.
The Eighth Amendment prohibits the infliction of "cruel and
unusual punishments," U.S. Const. amend. VIII, including the
"`unnecessary and wanton infliction of pain.'" Griffen v.
Crippen, 193 F.3d 89, 91 (2d Cir. 1999) (quoting Gregg v.
Georgia, 428 U.S. 153, 173 (1976).*fn10 In order to establish a
constitutional violation under the Eighth Amendment, a plaintiff
must satisfy both an objective and a subjective component. See
Hudson v. McMillian, 503 U.S. 1, 9-10 (1992). The objective
component requires that the alleged violation be "sufficiently
serious" by objective standards. Farmer v. Brennan, 511 U.S. 825,
834 (1994). This component is "context specific, turning upon
`contemporary standards of decency.'" Blyden v. Mancusi,
186 F.3d 252, 262 (2d Cir. 1999) (citations omitted). The subjective
component requires that the inmate show that the prison officials
involved had a "wanton" state of mind when they engaged in the
alleged conduct. Hudson, 503 U.S. at 9-10; Davidson v. Flynn,
32 F.3d 27, 29 (2d Cir. 1994).
Specifically, the factors to be weighed in determining whether
there has been an unconstitutional application of excessive force
The need for the application of force, the relationship
between the need and the amount of force that was used,
the extent of injury inflicted, and whether 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,