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United States District Court, Southern District of New York

April 15, 2003


The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge



In a complaint filed on February 21, 1996, and later amended on March 23, 2000, pro se incarcerated plaintiff Andrew A. Brown ("Brown"), brought this action pursuant to 42 U.S.C. § 1983, alleging state law negligence claims and violations of his constitutional rights under the Eighth and Fourteenth Amendments. Brown alleges that defendant Christopher Garvey ("Garvey"), a correction officer at Rikers Island James A. Thomas Detention Center, violated his constitutional rights when he placed Brown in the same holding cell as an inmate who had threatened and subsequently harmed Brown. The complaint also alleges that defendant Anthony Picarelli ("Picarelli"), Garvey's supervising captain, failed to (1) properly train and supervise Garvey, (2) sufficiently supervise the detention center's intake area, and (3) ensure proper functioning of security machinery. Furthermore, Brown alleges that he received inadequate medical care for his injuries.

On April 25, 2002, defendants filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, asserting that Brown fails to establish a claim under § 1983 because (a) neither defendant was personally involved in the alleged violations, and (b) Brown cannot demonstrate that the conditions of his incarceration posed a substantial risk of har or that any "deliberate indifference" by defendants led to his serious injury. Defendants also claim that they are shielded from liability by the doctrine of qualified immunity. In response, Brown argues that genuine issues of material fact exist as to all of the issues raised by defendants. He further argues that defendants were not entitled to qualified immunity because defendants knew or should have known that their conduct would violate his constitutional rights.

For the reasons that follow, I respectfully recommend that defendants' motion be GRANTED.


On July 27, 1994, Brown was summoned from his cell at the Rikers Island Detention Center for a court appearance. Amended Complaint ("Amd.Compl.") at ¶ 9. Brown was escorted by correction officers from his cell to the strip-search area. Id. at ¶ 10; Deposition of Andrew Brown ("Brown Dep."), dated June 14, 2001, at 48:16-23. Brown noticed that twelve other inmates were also escorted from their cells to the strip-search area. Brown Dep. at 49:10-16. While Brown was on line in the strip-search area, another inmate, Fitzroy McNeil ("McNeil"), allegedly demanded that Brown hand over the gold chain around his neck, saying, "You are going to give that chain up." Id. at 59:25-60:6. Brown told McNeil, in a "not too loud" voice, id. at 61:6-8, "I'm not giving you nothing." Id. at 61:9. Brown alleges that McNeil threatened him with physical violence. Amd. Compl. at ¶ 12. Brown also testified that he assumed, but was unsure, that Garvey heard his exchange with McNeil because Garvey was looking in their direction. Brown Dep. at 63:9-14.

McNeil was subsequently strip-frisked and placed in a holding cell. Id. at 65:15-66:4; Amd. Compl. at ¶ 13. After the officers searched Brown, Garvey allegedly placed him in the same holding cell with McNeil. Amd. Compl. at ¶ 14. Brown had not requested that correction officers place him in a different cell from McNeil. Brown Dep. at 67:6-9. Upon realizing he had been placed in the same cell as McNeil, Brown did not call out to any of the officers. Id. at 68:11-15. Close to five minutes after being left in the holding cell, McNeil approached Brown from the opposite end of the cell, again demanding that Brown give up his gold chain. Id. at 68:6-70:2. Brown again refused to give McNeil the chain, but still did not call out to any correction officers. Id. at 70:6-19.

McNeil proceeded to cut Brown's head and face with a razorblade that he had hidden on his person. Amd. Compl. at ¶ 15. Brown did not see the blade prior to being cut by McNeil. Brown Dep. at 71:25-72:4. The fight lasted approximately five to seven minutes, and once Brown realized he was bleeding, he called out to the officers. Id. at 73:11-19. At that point, McNeil stopped attacking Brown. Id. at 74:5-8. Garvey responded to the incident and immediately took Brown out of the holding cell. Id. Following the incident, Garvey informed Picarelli, who instructed Garvey to escort Brown to receive medical treatment. Id. at 74:15-25; see also Defendants' Notice of Motion for Summary Judgment ("Def. Mot.") at Exh. E. Brown was taken to the Rikers Island Clinic, where his wounds were cleaned and wrapped in gauze to stop the bleeding. Id. at 75:2-77:22. He was also given iodine and his injuries were stitched. Id. at 78:5-13; Amd. Compl. at ¶ 19.

In an Incident Report Form submitted by Picarelli on July 28, 1994, Picarelli stated that all inmates who enter the intake area are strip-searched and walked through a magnetometer machine, while their belongings are put under a fluoroscope. Def. Mot. at Exh. D. When Picarelli searched McNeil following the incident, a razor wrapped in gauze fell from McNeil's buttocks area. Def. Mot. at Exhs. D and F. His report stated that the razor recovered from McNeil was put through the magnetometer, but was not detected, and he concluded that this was probably how the razor entered the intake area. Id. According to Brown, these statements indicate that the machinery was not working properly, and that Picarelli was directly responsible for the injuries sustained. Amd. Compl. at ¶¶ 17-18. McNeil was issued an infraction for assault with injury and assault with a weapon. Def. Mot. at Exh. D.


A. Motion for Summary Judgment

Summary judgment should not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. at 323. Once the party moving for summary judgment has met its initial burden of showing the absence of a genuine issue of material fact, the burden shifts to the nonmoving party to bring forth specific facts to show there is a factual question that must be resolved at trial. See FED.R.CIV.P. 56(e); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Additionally, the court is required to construe the evidence in the light most favorable to the nonmoving party, and draw all reasonable inferences in its favor. Id. at 252; Celotex, 477 U.S. at 330, n. 2; see also Pauling v. Sec. of the Dept. of the Interior, 160 F.3d 133, 136 (2d Cir. 1998).

In considering the motion, the court's responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party. Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 36-37 (2d Cir. 1994); see also Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932 (1987). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48. The nonmoving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256. Summary judgment should be granted where no reasonable trier of fact could find in favor of the nonmoving party, H. L. Hayden Co. of New York, Inc. v. Siemens Med. Sys., Inc., 879 F.2d 1005, 1011 (2d Cir. 1989), thereby "dispos[ing] of meritless claims before becoming entrenched in a frivolous and costly trial." Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987). Additionally, if the nonmoving party fails to respond by "affidavits or as otherwise provided in [Rule 56, and] set forth specific facts showing that there is a genuine issue for trial[,] summary judgment, if appropriate, shall be entered against the adverse party." FED.R.CIV.P. 56(e).

B. Section 1983

In order to state a cause of action under 42 U.S.C. § 1983, a plaintiff must show that the conduct in question was committed by a person acting under color of state law, and that the conduct deprived the plaintiff of his "rights, privileges, or immunities secured by the Constitution or the laws of the United States." Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). A prerequisite to an award of monetary damages in a civil rights action is a showing of the defendant's personal involvement in the constitutional violation. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Thus, a plaintiff must "allege a tangible connection between the acts of the defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). A defendant occupying a supervisory position may be personally involved if: "(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring." Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).

Here, the record does not indicate that Garvey was personally involved in violating any of Brown's constitutional rights, see Wright v. Smith, 21 F.3d at 501, or that any of the five conditions articulated in Colon, 58 F.3d at 873, apply to Picarelli. For instance, Brown's complaint and deposition testimony demonstrate that McNeil assaulted Brown only after Garvey turned and walked away from the holding pen. See Amd. Compl. at ¶ 15; Brown Dep. at 67-74. In addition, the record clearly establishes that Picarelli learned of the alleged assault after it occurred. See Picarelli Declaration ("Picarelli Decl."). at ¶¶ 4-5; Brown Dep. at 74:22-24. Furthermore, as to Brown's allegation of inadequate medical treatment, the record is clear that neither defendant was in any way personally involved in providing medical treatment to Brown. A nurse treated Brown for his injuries after Garvey, as instructed by Picarelli, escorted Brown to the clinic for examination. See Brown Dep. at 74:20-78:13; Picarelli Decl. at ¶ 6; Garvey Declaration ("Garvey Decl.") at ¶¶ 9-10. The evidence is clear, therefore, that neither defendant directly participated in the alleged constitutional violations.

Second, the record establishes that both defendants promptly moved to remedy the wrong. There is nothing to indicate that defendants either ignored the incident or delayed in responding to it.

Third, neither Garvey nor Picarelli created a policy or custom under which inappropriate conduct occurred. Rather the record reveals that procedures followed by defendants sought to remedy plaintiffs alleged injury, and not to encourage occurrence of the incident. For instance, after learning of the incident, Picarelli immediately notified the correction facility warden, who ordered a complete strip search of all inmates who were in the holding pen where the alleged assault occurred. See Picarelli Decl. at ¶¶ 6-7. Picarelli oversaw the search and discovered the weapon McNeil used to assault Brown. Id. at ¶¶ 7, 9; Def. Mot. at Exh. D. Picarelli also conducted an investigation of the incident, which revealed that McNeil slashed Brown with a razor and that Garvey did not see the incident occur. See Picarelli Decl. at ¶ 15; Def. Mot. at Exh. D. Subsequently, Picarelli issued McNeil an infraction, charging him with assault, and gave him an interrogation warning. See Picarelli Decl. at ¶ 16.

Fourth, neither Garvey nor Picarelli can be found grossly negligent in supervising subordinates who committed wrongful acts, for there is no evidence that any of defendants' subordinates, in fact, violated Brown's constitutional rights. Furthermore, there is no evidence to support Brown's contention that Garvey and Picarelli were deliberately indifferent to Brown's rights based on a failure to act, as Brown presents no evidence that establishes that the defendants knew of the events that preceded McNeil's attack or that he faced any threat of harm prior to the assault. By his own testimony, Brown admitted that he did not know whether Garvey or any other correction officer actually heard McNeil threaten him with violence. See Brown Dep. at 63:9-65:14. He merely assumed that correction officers standing in the strip-search area heard the alleged argument between McNeil and him because they looked in the inmates' direction when the argument occurred. Id. at 63:9-14. Brown was unclear, however, whether Garvey was, in fact, one of those correction officers. Id. at 64:16-21. Even supposing that the correction officers did hear the argument between the inmates, Brown presents no evidence that the officers heard McNeil actually threaten Brown, as to alert them that unconstitutional acts might occur.*fn1 Furthermore, even if Picarelli was responsible for ensuring that the security machinery was in proper working order, Brown does not allege facts to support that Picarelli was grossly negligent in performing his duties, or that he was on notice of any problems with the machinery. Thus, Brown presents no evidence to support an allegation that defendants were deliberately indifferent to his rights based on a failure to act.

Fifth, the record shows that Brown did not inform Garvey, Picarelli, or any other correction officer that he faced a threat of harm prior to the alleged assault. Id. at 67:6-9. Although Brown thought that he might be placed in the same holding pen as McNeil, he did not inform anyone that he did not want to be placed there. Id. at 66:22-67:9. Brown also did not call out to anyone when he realized he had been placed in the same pen with McNeil, or when McNeil approached him and demanded his jewelry. Id. at 68:11-72:14. Instead, Brown called out to a correction officer for help only after he realized he had been slashed and was bleeding. Id. at 73:13-22. The evidence, therefore, demonstrates that neither defendant was deliberately indifferent to Brown's rights.

Brown cannot demonstrate that defendants were personally involved in the alleged constitutional violations. Nor can he establish that defendants directly participated in his alleged injury, that they failed to remedy the wrong he suffered immediately upon discovery of the incident, that they were grossly negligent or deliberately indifferent to his rights, or that they promulgated a policy or custom that gave rise to his injury and thereby violated his constitutional rights. Therefore, because Brown fails to establish the requisite personal involvement of Garvey and Picarelli, his claims against them should be dismissed.

1. Eighth Amendment Claim

Even if Brown could demonstrate defendants' personal involvement in the alleged constitutional violations, he has not put forth evidence sufficient to demonstrate violations of his Eighth Amendment rights. Brown contends that Garvey knew McNeil had threatened him with violence and, therefore, was negligent in placing him in the holding pen with McNeil. See Amd. Compl. at ¶ 20. In addition, Brown alleges that Picarelli was negligent in his failure to properly supervise the strip-search area and ensure that the security machinery, the magnetometer, detected all contraband on inmates. Id. at ¶ 18. Thus, according to Brown, McNeil was able to smuggle a razor into the intake area, which he used to slash Brown. Id. at ¶ 21. Furthermore, Brown contends that both Garvey and Picarelli failed to ensure that Brown received proper medical treatment and therefore caused him pain and suffering. Id. at ¶ 19; Plaintiffs Brief and Memorandum in Opposition to Defendant's Motion for Summary Judgment ("Pl. Mem.") at 10. Accordingly, Brown contends that all of defendants' actions subjected him to cruel and unusual punishment in violation of his Eighth Amendment rights.

The Eighth Amendment, which applies to the States through the Due Process Clause of the Fourteenth Amendment, "prohibits the infliction of `cruel and unusual punishments' on those convicted of crimes." Wilson v. Seiter, 501 U.S. 294, 297 (1991); U.S. CONST. amend. VIII; See also Estelle v. Gamble, 429 U.S. 97, 102 (1976). The Amendment applies to prison officials when they provide medical care to inmates, see Estelle, 429 U.S. at 103, and it imposes a duty upon prison officials to "take reasonable measures to guarantee safety of the inmates," particularly to protect inmates from violence from other inmates. See Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations omitted); Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997). "Proof of mere negligence [by an official] will not give rise to a constitutional violation." Hendricks v. Coughlin, 942 F.2d 109, 113 (2d Cir. 1991). In addition, not every assault by one prisoner upon another constitutes a constitutional violation. Farmer, 511 U.S. at 834. In order to make an Eighth Amendment claim based on conditions of incarceration, a plaintiff must show that officials subjected him to a substantial risk of serious harm or that officials were deliberately indifferent to the prisoner's health or safety. Id.

The deliberate indifference standard constitutes both an objective and subjective component. Farmer, 511 U.S. at 834-35. To satisfy the first component, the plaintiff must demonstrate that the deprivation was "sufficiently serious." Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (quoting Wilson v. Seiter, 501 U.S. at 298). A deprivation violates the Eighth Amendment if it presents "`a condition of urgency,' one that may produce death, `degeneration,' or `extreme pain.'" Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Hathaway, 37 F.3d at 66). To determine a "sufficiently serious" medical condition, courts may consider several factors such as "[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain." Chance, 143 F.3d at 702 (citations omitted).

Next, the plaintiff must show that the official acted with a "sufficiently culpable state of mind," Hathaway, 37 F.3d at 66, the equivalent of criminal recklessness. Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). An official acts with the requisite deliberate indifference when he "knows of and disregards an excessive risk to inmate health or safety; the official must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837. Thus, "the plaintiff must demonstrate that the defendant actually wish[ed] him harm or at least [was] totally unconcerned with his welfare." LaBounty v. Gomez, 1997 WL 104959, at *5 (S.D.N.Y. March 10, 1997) (quoting Hathaway, 37 F.3d at 69) (internal quotations and citations omitted).

a. Failure to Protect

In the instant case, Brown's failure to protect claim fails to meet the deliberate indifference standard. As an initial matter, Brown cannot demonstrate that the conditions under which he was incarcerated "pos[ed] a substantial risk of serious harm." See Farmer, 511 U.S. at 834. Moreover, he cannot show that Garvey and Picarelli knew of, and disregarded, that risk. Id. at 837.

Brown testified that he did not know McNeil before the date of the alleged assault and had never had an argument with McNeil prior to that date. See Brown Dep. at 50:15-51:10. Moreover, the exchange of words between Brown and McNeil was insufficient to put Garvey or Picarelli on notice that Brown faced a substantial risk of serious harm.

He was like, "You are going to give that chain up," and stuff like that. So I started arguing with him, saying that, "I'm not giving nothing up. I don't even know you." He was like, "You got to give that stuff up." It was like that.
Id. at 59:24-60:5. Moreover, Brown never expressed concern for his safety to either defendant or any other correction officer after the two inmates exchanged words. Only after Brown noticed that he was bleeding, following the altercation with McNeil, did he call out for help. Id. at 73:14-19. Accordingly, there is insufficient evidence from which defendants could have inferred that Brown faced a substantial risk of harm.

As to the subjective component of the deliberate indifference standard, nothing in the record indicates that Garvey or Picarelli knew of, and consciously disregarded, a substantial risk to Brown's health and safety. As previously discussed, Brown failed to notify either defendant or any correction officers of any potential threat he faced from McNeil. In addition, he testified that the exchange of words was not particularly loud, stating "kind of, loud enough because I mean other inmates were there minding their business," Id. at 60:11-13. Thus, if the inmates in the same line as Brown and McNeil did not show any reaction to their alleged argument, it is unlikely that the correction officers stationed in the search area heard the exchange. Brown also testified that he responded to McNeil in a "not too loud" voice. Id. at 61:7.

Brown alleges that the officers, including Garvey, were looking in his direction, but gives no other evidence that they could hear or did hear the exchange with McNeil. Id. at 63. His testimony therefore fails to support his claim that Garvey heard the argument between Brown and McNeil. Even if Garvey did overhear their argument and nevertheless placed the two inmates in the same cell, such actions might constitute, at most, negligence. Allegations of negligence are insufficient to give rise to a constitutional violation. See Hendricks, 942 F.2d at 113. Similarly, even if Picarelli had a duty to properly maintain the magnetometer and failed to do so, this would constitute simple negligence. Accordingly, Brown cannot maintain his failure to act claim against Garvey and Picarelli.

b. Medical Care

Brown's medical care claims also fail to meet the objective and subjective prongs of the deliberate indifference standard. First, Brown cannot demonstrate that his injury was serious enough to present "a condition of urgency that may result in degeneration or extreme pain." See Chance, 143 F.3d at 702 (internal quotations omitted). The nature of the treatment Brown received and his testimony concerning the treatment demonstrate that his injuries were minimal and did not amount to a serious medical condition.

While Brown claimed he was cut across his right ear, face, and on the back of his head, he also claimed that the nurse he saw cleaned his wounds and wrapped them in gauze, which stopped the bleeding. See Brown Dep. at 75:2-77:22. Brown likened his treatment to "a bandaid and stuff like that," which he was dissatisfied with and considered improper medical treatment. Id. at 75:8-10. However, Brown contended that he received iodine and stitches for his injuries. Id. at 78:6-11. Brown also testified that he received Tylenol for swelling. Id. at 78:23-79:4. He further testified that the scar on his face was not greatly disfiguring, stating, "Well, you can't tell I got a scar on my face. It's been quite a while, wasn't like a deep scar, but it was a scratch." Id. at 79:9-11. As to the scar on the back of his head, no one could see it unless he shaved his head. Id. at 79:14-15. Although Brown testified that he felt pain from the wounds to his head and ear, he was unsure whether he made any complaint about the pain, stating, "I believe I did at some point, but I am not really accurate like I should have been doing." Id. at 80:15-18. Completely crediting this testimony,*fn2 Brown's medical condition was not sufficiently serious for constitutional purposes.

Second, Brown cannot demonstrate that defendants acted with the sufficient culpable state of mind to meet the deliberate indifference standard. A prisoner is not entitled to every form of treatment available or to every form available to non-incarcerated individuals. "At a minimum, there must be at least some allegations of a conscious or callous indifference to a prisoner's rights." Zaire v. Dalsheim, 698 F. Supp. 57, 59 (S.D.N.Y. 1998), aff'd, 904 F.2d 33 (2d Cir. 1990). "Medical decisions will constitute `indifference' only when they are contrary to accepted medical standards." Ramos v. Artuz, 2003 WL 342347, at *7 (S.D.N.Y. Feb. 14, 2003) (citing Harding v. Kuhlmann, 588 F. Supp. 1315, 1316 (S.D.N.Y. 1984), aff'd, 762 F.2d 990 (2d Cir. 1985)). Here, there is no evidence that the treatment Brown received constituted inadequate care. Brown confirmed that his wounds stopped bleeding after he was treated by the nurse and that his facial and head scars from the wounds were more like scratches, which later faded and became undetectable by others. See Brown Dep. at 79. In addition, Brown reveals that he neither asked for, nor received treatment for any pain allegedly associated with his injuries. Id. at 79-80. Thus, not only were Brown's injuries minimal for constitutional purposes, but the treatment he received was consistent with accepted medical standards. Therefore, Brown's claim of inadequate medical care is insufficient to maintain an Eighth Amendment claim against Garvey and Picarelli.

C. Qualified Immunity

Qualified immunity shields public officials from liability for their discretionary acts "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Saucier v. Katz, 533 U.S. 194, 200-202 (2001); Poe v. Leonard, 282 F.3d 123, 131 (2d Cir. 2002). In determining whether qualified immunity applies, "the first inquiry must be whether a constitutional right would have been violated on the facts alleged." Saucier, 533 U.S. at 200. If a violation has been made out, the Court must proceed to determine whether the right in question was "clearly established" at the time of the violation. Id. at 201. In this regard, the right must be established with a level of specificity that is beyond the statement of a general proposition. Id. at 201-02; Poe v. Leonard, 282 F.3d at 135. In essence, the court must inquire "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, supra, at 202. This test does not require a defendant to have understood the complexities of the case law. Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir. 1998). On the other hand, "[q]ualified immunity does not protect those who are plainly incompetent or those who knowingly violate the law." Weyant v. Okst, 101 F.3d 845, 858 (2d Cir. 1996).

In the instant case, Brown has not alleged facts which would constitute a constitutional violation. As detailed above, his allegations do not rise to the level of cruel and unusual punishment under the Eighth Amendment. Defendants did not act with deliberate indifference to Brown's safety. Because defendants were unaware of any danger to Brown or the existence of any serious medical condition, there is no knowing violation of the law. Brown has therefore failed to present facts to defeat the qualified immunity defense.

Accordingly, I respectfully recommend that defendants' motion to dismiss be GRANTED.

D. State Law Negligence Claims

In addition to his federal claims against defendants, Brown has brought state law negligence claims. Pursuant to 28 U.S.C. § 1367 (a), the District Court has supplemental jurisdiction over claims related to and part of the cause of action for which the Court has original jurisdiction. Supplemental jurisdiction, however, "is a doctrine of discretion, not of plaintiffs right." United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). "In most circumstances, a district court should decline supplemental jurisdiction if all federal claims have been dismissed at the pleading stage." Lerner v. Fleet Bank, N.A., 318 F.3d 113 (2d Cir. 2003) (citing Gibbs, 383 U.S. at 726). Accordingly, I respectfully recommend that the Court decline its supplemental jurisdiction over Brown's state law claims.


Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Richard M. Berman, 40 Centre Street, Room 201, and to the chambers of the undersigned, 500 Pearl Street, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989) (per curiam); 28 U.S.C. § 636(b)(1) (West Supp. 1995); Fed.R. Civ. P. 72, 6(a), 6(e).

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