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United States District Court, S.D. New York

February 5, 2004.


The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge


Willie Baines has brought this pro se action under 42 U.S.C. § 1983 against the City of New York and Corrections Officers Edward Benoit, Gary Lewis and Michael Connors. Baines is currently incarcerated at the Southport Correctional Facility in Pine City, New York. Defendants have now moved for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons stated below, their motion should be granted.


  In considering the defendants' motion for summary judgment, the Court accepts as true Baines's version of the facts where supported by admissible evidence and draws all factual inferences in Baines's favor. See, e.g., McPherson v. Coombe. 174 F.3d 276, 280 (2d Cir. 1999).

  A. Factual Background

  On March 5, 1998, Baines was assigned to the Central Punitive Segregation Unit ("CPSU") of the Otis Bantum Correctional Center at Rikers Island Correctional Facility ("Rikers Island"). See Deposition of Willie Baines, May 8, 2003 ("Baines Dep.") (annexed as Ex. C to Page 2 Declaration of Vikrant Pawar in Support of Motion for Summary Judgment, filed July 30, 2003 (Docket #43) ("Pawar Decl.")), at 26, 53. The CPSU is a disciplinary unit for inmates who have been found guilty of various infractions. See Declaration of Edward Benoit in Support of Motion for Summary Judgment, dated July 23, 2003 ("Benoit Decl.") (annexed as Ex. F to Pawar Decl.), ¶ 4. Baines was classified as an inmate who had exhibited violent behavior and posed a safety risk to others. Baines Dep. at 49; Benoit Decl. ¶ 5; see Ex. K to Pawar Decl. Such inmates carry a red identification card and are thus termed "Red-ID" inmates. Benoit Decl. ¶ 5; The City of New York Department of Correction Operations Order #15/94, Identification. Tracking and Monitoring of Weapon Carriers, dated September 23, 1994 ("Operations Order #15/94") (reproduced in Plaintiffs' [sic] Motion in Opposition to Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment, dated December 5, 2003 ("Pl. Mem.")), at 1-3. Red-ID inmates are considered a threat to the safety of prison officials and other inmates. Benoit Decl. ¶¶ 6, 8.

  Each day, inmates at CPSU are escorted to a recreation yard for exercise and recreation time. Baines Dep. at 55, 63-65. All CPSU inmates go to the recreation yard at the same time, chained together in groups. Id. at 63-64. They stay there for approximately one hour. Id. at 64. Before entering the yard, all inmates are subjected to a three-point search that is designed to prevent unauthorized items from being transported from their cells to the yard. Id. at 80-82. Under this procedure, an officer comes to an inmate's cell door, cuffs him behind his back, and takes him to the search area. Id. at 80. In the search area, the inmate must remove his clothes and any jewelry and then proceed through a magnetometer. Id. at 80-81. The officers search the inmate's clothing and shoes to ensure that he does not possess any weapons or contraband. Id. at Page 3 81. The inmate is then permitted to get dressed. Id. After the search, the inmates are brought cuffed to the recreation yard where they are then uncuffed and placed into "cages." Id. at 81, 116. The recreation yard has several single-inmate cages for Red-ID inmates and four "big" cages for other inmates. Id. at 57-58. These other inmates, referred to as "non-Red-ID" inmates, are not considered a threat to Red-ID inmates. Benoit Decl. ¶ 8. While the inmates are in the cages, officers walk around the cages and monitor them. Baines Dep. at 58-59.

  On March 5, 1998, Baines was subjected to this three-point search and taken outside to the recreation yard. Id. at 65-66, 80-82. Once outside, he noticed that an "old rival" named "Bambi" was in one of the non-Red-ID cages along with other inmates. Id. at 84-85, 87. Bambi had threatened and been violent to Baines outside of prison in the past but Baines had never seen him at Rikers Island prior to March 5. Id. at 89-90. Baines noticed that Bambi was standing inside the cage staring at him. Id. at 91. Upon seeing Bambi, Baines stated to defendant Corrections Officers ("CO") Gary Lewis and Michael Connors that he did not belong in a non-Red-ID cage because he was a Red-ID prisoner. Id. at 73, 82-83, 86-87. Baines "plead[ed]" with them not to be put in the cage, telling them "I cannot go in the cage." Id. at 91. However, there is no evidence that Baines ever told the officers that there was an individual in the cage whom he believed to be a threat to him. See id. at 91-95; see also id at 91 ("Q. Did you point to [Bambi] and point out to the officer the individual known as Bambi? A. No."). Notwithstanding Baines's plea, CO Lewis and CO Connors put Baines in the non-Red-ID cage. Id. at 87-88.

  Once Baines was in the cage, he was attacked by two inmates. Voluntary Inmate Statement, dated March 5, 1998 ("Baines Statement") (annexed as Ex. I to Pawar Decl.), at 1. Baines fought back but does not know which inmates assaulted him. Baines Dep. at 107-08, Page 4 114-15; Baines Statement at 1. Officers demanded that the inmates cease fighting and sprayed them with a chemical agent when they refused to comply. 24 Hour Report — Communication Control Center — From 0600 Hrs. March 5, 1998 to 0559 Hrs. March 6, 1998 ("24 Hour Report") (annexed as Ex. G to Pawar Decl.), at 1: see also Benoit Decl. ¶ 10(c) ("At times, chemical agent is needed to help quell the violence and to ensure the safety of prison officials and others when inmates refuse to cease fighting and pose a potentially greater risk."). When the violence subsided, Baines was taken out of the cage. Baines Dep. at 116. He had been cut on his face by a sharp object and had suffered scrapes and bruises to his neck, face and knees. Id. at 111-12; Baines Statement at 1; Injury to Inmate Report, Form #167R, dated March 5, 1998 ("Injury Report") (annexed as Ex. J to Pawar Decl.), at 1.

  Before receiving any medical treatment at the clinic, Baines was taken to an inmate-intake area. Baines Dep. at 116-17. This procedure is followed to ensure that no inmate takes a weapon to the clinic and to flush out an inmate's eyes when a chemical agent has been used. Benoit Decl. ¶ 11. Baines was then taken to the clinic where he received medical treatment, including approximately nine stitches for his cut. Baines Dep. at 116; 24 Hour Report at 2. Baines arrived at the clinic for treatment approximately 90 minutes after the incident in the cage was reported. See Injury Report at 1.

  B. Procedural History

  On June 2, 1999, Baines filed with the New York Court of Claims a document captioned "Claim" in which he alleged that the City was negligent. See Claim, dated April 12, 1999 ("Claim") (annexed as Ex. D to Pawar Decl.), at 1. According to Baines, that case was dismissed on statute-of-limitations grounds. See Complaint, filed March 28, 2001 (Docket #2) ("Compl") Page 5 (annexed as Ex. A to Pawar Decl.), ¶ I(B)(5).

  The complaint in the instant action was received by the Southern District of New York Pro Se Office on January 30, 2001 and was filed on March 28, 2001. Id. at 1. That complaint named as defendants "Captain Gram" and "C.O. John Doe." Id. After failed attempts at serving these defendants, the Court ordered the Corporation Counsel of the City of New York to identify the defendants referred to in the complaint. Order, filed July 24, 2001 (Docket #7), at 1-2.

  On October 10, 2001, Baines filed an amended complaint naming as defendants the instant defendants. See Amended Complaint, filed October 10, 2001 (Docket #8), at 1. Defendants moved to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). See Notice of Motion, filed February 14, 2002 (Docket #14). Baines then submitted a second amended complaint, which the Court ordered docketed without prejudice to defendants' arguments that it did not cure the alleged defects in the first amended complaint. Order, filed April 11, 2002 (Docket #21); see Second Amended Complaint, filed April 11, 2002 (Docket #24). Defendants moved to dismiss the second amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). See Notice of Motion, filed May 2, 2002 (Docket #25). Baines then moved for leave to amend the second amended complaint, which was granted. See Memorandum Endorsement, filed September 13, 2002 (Docket #29). On September 13, 2002, Baines filed his third amended complaint. Plaintiff's Third Amended Complaint, filed September 13, 2002 (Docket #32) ("Third Am. Compl.") (annexed as Ex. B to Pawar Decl.).

  The complaint alleges that the defendants failed to protect Baines from the assault by the other inmates and that they were deliberately indifferent to his medical needs by failing to provide him with adequate medical treatment. See id. ¶ 12-22, 26. In addition to these claims, Page 6 which were brought under 42 U.S.C. § 1983, the complaint also asserts municipal liability against the City of New York. See id. ¶¶ 23-25, 28. Finally, Baines asserts state law claims of negligence. See id ¶ 27. Baines seeks compensatory damages of $500,000 for physical and emotional injuries and $500,000 in punitive damages. See id. at 10. He also seeks a declaratory judgment that, inter alia, the defendants violated the Eighth Amendment. See id. at 9.

  Defendants have now moved for summary judgment under Fed.R.Civ.P. 56, arguing that (1) Baines has not established his failure to protect claim; (2) Baines's inadequate medical treatment claim must be dismissed because he failed to exhaust his administrative remedies or, in the alternative, because the claim is insufficient; (3) the individual defendants are entitled to qualified immunity; (4) Baines has failed to state a claim for municipal liability against the City; and (5) Baines's state law claims are time-barred. See Notice of Motion for Summary Judgment, filed July 30, 2003 (Docket #43); Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment, filed July 30, 2003 (Docket #44).


  A district court may grant summary judgment only if "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c): see Celotex Corp. v. Catrett. 477 U.S. 317, 322 (1986). A genuine issue is one that "may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 250 (1986); accord McPherson. 174 F.3d at 280. A genuine issue of "material" fact is a "dispute[] over facts that might affect the outcome of the suit under the governing law." Anderson. 477 U.S. at 248. Thus, "`[a] reasonably disputed, legally Page 7 essential issue is both genuine and material'" and precludes a finding of summary judgment. McPherson. 174 F.3d at 280 (quoting Graham v. Henderson. 89 F.3d 75, 79 (2d Cir. 1996)); accord Alien v. Cuomo. 100 F.3d 253, 258 (2d Cir. 1996) (the moving party "must prevail if the [non-moving party] fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to [his] case" (citing Anderson. 477 U.S. at 247-48)).

  When determining whether a genuine issue of material fact exists, all factual inferences must be drawn and all ambiguities resolved in favor of the non-moving party. See, e.g., Savino v. City of New York. 331 F.3d 63, 71 (2d Cir. 2003) (citing Anderson. 477 U.S. at 255); McPherson. 174 F.3d at 280. However, "[c]onclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (citation omitted); accord Harlen Assocs. v. Incorporated Vill. of Mineola. 273 F.3d 494, 499 (2d Cir. 2001).


  A. Section 1983

  Under 42 U.S.C. § 1983, a plaintiff must show that there has been a denial of a constitutional or federal statutory right and that the deprivation of such right occurred under color of state law. See 42 U.S.C. § 1983; West v. Atkins. 487 U.S. 42, 48 (1988). Section 1983 does not grant any substantive rights but rather "provides only a procedure for redress for the deprivation of rights established elsewhere," such as in the Constitution. Sykes v. James. 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted), cert. denied. 512 U.S. 1240 (1994).

  The defendants do not contest that they were acting under color of state law. The Page 8 constitutional basis for Baines's claims is the Eighth Amendment right to be free from cruel and unusual punishment. See Pl. Mem. at 16; Third Am. Compl. at 1. Baines has stated two claims under section 1983: a claim for deliberate indifference to his medical needs and a claim that the officers failed to protect him from the assault. Each is discussed separately.

  B. Deliberate Indifference to Medical Needs Claim

  1. Exhaustion

  Under the Prison Litigation Reform Act ("PLRA"), "[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). While the PLRA speaks only of "prison conditions," its exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle. 534 U.S. 516, 532 (2002): see also Booth v. Churner. 532 U.S. 731, 741 (2001) (exhaustion requirement applies even where the plaintiff is seeking monetary damages, rather than injunctive or other equitable relief). The exhaustion requirement of the PLRA mandates exhaustion, where available, in instances where an inmate is alleging that prison officials were deliberately indifferent to his medical needs. See, e.g., Renelique v. Doe. 2003 WL 23023771, at *2, *11 (S.D.N.Y. Dec. 29, 2003); Arrovo v. City of New York. 2003 WL 22211500, at *1 (S.D.N.Y. Sept. 25, 2003); Dixon v. Laboriel. 2003 WL 21729834, at *3-*4 (S.D.N.Y. July 24, 2003); Burns v. Moore. 2002 WL 91607, at *3-*4 (S.D.N.Y. Jan. 24, 2002).

  New York City's exhaustion requirement is set forth in a Department of Correction's Directive entitled "Inmate Grievance Resolution Program." See Directive, Inmate Grievance Page 9 Resolution Program, dated March 4, 1985 ("Grievance Directive") (annexed as Ex. E to Pawar Decl.), at 1. Under this Directive, grievances may be filed for any "complaint pertaining to any written or unwritten policy of the Department of Correction, or any of its service units, or the manner in which these policies are carried out." Id. However, "complaints pertaining to an alleged assault or verbal harassment" are not grievable. Id. at 2. The grievance procedure provides for five levels of review: (1) informal review by the Inmate Grievance Resolution Committee ("IGRC"); (2) formal review by the IGRC; (3) review by the IGRC's Commanding Officer; (4) review by the Central Office Review Committee; and (5) review by the Board of Correction and the Commissioner of Correction. Id. at 6-7. If a decision is not timely issued at any step of the process, the prisoner may take an immediate appeal to the next level. Id. at 7; accord Renelique. 2003 WL 23023771, at *10. In order to satisfy the PLRA's exhaustion requirement, a prisoner "must pursue his challenge to the conditions in question through the highest level of administrative review prior to filing his suit." Flanagan v. Maly. 2002 WL 122921, at *2 (S.D.N.Y. Jan. 29, 2002) (citations omitted): accord Renelique. 2003 WL 23023771, at *11.

  2. Discussion

  It is undisputed that Baines never filed a grievance as to his claim that the defendants were deliberately indifferent to his medical needs through their failure to provide him with adequate medical treatment. Defendants have submitted a declaration from Edward Benoit, the Assistant Deputy Warden with the City Department of Correction, stating that there is no record of any grievance regarding medical treatment filed by Baines concerning the March 5 incident. See Benoit Decl. ¶¶ 13-14. In addition, defendants have submitted a Department of Correction's Page 10 memorandum indicating that a search of the grievance records was conducted for the period from December 1997 through March 1998 and that the search demonstrated that no grievance was filed by Baines. See Department of Correction — Intradepartmental Memorandum from Stacey Jenkins to Arthur Harris, dated July 22, 2003 (annexed as Ex. H to Pawar Decl.). Finally, Baines himself admits that he knew a grievance procedure was available to him and that he did not pursue his claim through that procedure. See Compl. ¶¶ II(A)-(B). Baines's claim is thus unexhausted.

  The only justification Baines has offered for the failure to exhaust is his contention that the issue was not grievable. See Pl. Mem. at 19. In support, he cites to a portion of the Grievance Directive stating that "complaints pertaining to an alleged assault or verbal harassment" are not grievable. Id. (citing Grievance Directive at 2). Baines's claim as to his treatment, however, does not "pertain[] to an . . . assault" by another inmate. Rather, Baines's claim is that medical personnel did not provide him with proper medical services. Such a claim is analytically distinct from his claim that the prison officials failed to protect him from an assault. Moreover, requiring exhaustion in this situation fits within the Grievance Directive's purpose of providing an administrative avenue for redressing "a complaint pertaining to any written or unwritten policy of the Department of Correction, or any of its service units, or the manner in which these policies are carried out," Grievance Directive at 1: see Dixon, 2003 WL 21729834, at *3-*4 (claim of deliberate indifference to medical needs was required to have been exhausted under the City's "Inmate Grievance Resolution Program"); accord Burns. 2002 WL 91607, at *4-*8; Rivera v. State of New York. 1999 WL 13240, at *4 (S.D.N.Y. Jan. 12, 1999); see also Renelique, 2003 WL 23023771, at *2 ("Unlike the failure to protect claim, which relates Page 11 to an alleged assault, the deliberate indifference claim is not excluded under the terms of the [`Inmate Grievance Resolution Program'].").

  Accordingly, there is no genuine issue of material fact that a procedure was available for grieving this claim and that Baines failed to utilize it. Because his claim has not been exhausted, the PLRA bars its consideration here. Thus, there is no need to consider the defendants' alternative arguments that the claim fails on its merits and that the individual defendants are entitled to qualified immunity.

  C. Failure to Protect Claim

  The defendants do not argue that Baines was required to exhaust his failure to protect claim — nor could they, as the Inmate Grievance Resolution Program excludes "complaints pertaining to an alleged assault or verbal harassment," Grievance Directive at 2; accord Renelique. 2003 WL 23023771, at *2. The PLRA requires exhaustion only where an administrative remedy is "available." 42 U.S.C. § 1997e(a). Accordingly, this claim is considered on the merits.

  Prison officials have a duty to protect prisoners from violent attacks by other inmates. See Farmer v. Brennan. 511 U.S. 825, 832-33 (1994). However, "[t]he standard for prisoner `failure to protect' claims brought under 42 U.S.C. § 1983 is quite high." Rivera. 1999 WL 13240, at *8 (citing McGriff v. Coughlin. 640 F. Supp. 877, 879 (S.D.N.Y. 1986)). To succeed on such a claim, the prisoner must establish both that a substantial risk to his safety actually existed and that the offending prison officials knew of and consciously disregarded that risk. See Farmer. 511 U.S. at 834, 837-39; accord Haves v. N.Y.C. Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996); see also Davidson v. Cannon. 474 U.S. 344, 347-48 (1986) (mere negligence of a Page 12 prison official, or lack of due care, will not suffice to establish deliberate indifference).

  Putting aside the question of whether a substantial risk to Baines's safety existed upon his entry into the non-Red-ID cage, Baines's claim fails because there is no evidence that any prison officials actually knew of any risk. Baines's argument is premised entirely on his contention that the placement of a Red-ID inmate in close proximity to one or more non-Red-ID inmates inherently creates a substantial risk to the safety of a Red-ID inmate. See, e.g., Pl. Mem. at 6-7. This argument is rejected. Red-ID inmates are classified as such because they pose a safety risk to prison officials and other inmates, including non-Red-ID inmates — not the other way around. Benoit Decl. ¶¶ 5-6, 8. There is thus no reason for an officer to believe that a non-Red-ID inmate poses a threat to a Red-ID inmate. In other words, while placing Baines in the cage might have presented a risk to the non-Red-ID inmates, the placement did not alert the officers that there was any risk to Baines, a Red-ID inmate.*fn1

  Baines makes much of the fact that he perceived a risk due to the presence of his "old rival," Bambi, in the cage. See Pl. Mem. at 12-13. But Baines has put forward no evidence that the officers were aware that his "old rival" was in the cage. Indeed, in his memorandum of law, Baines goes so far as to argue that he "was not required to inform the officer that `Bambi' was in the cage that he was going in and that he was an `old rival' nor was he required to point him out." Page 13 Id. at 1. Baines has also offered an explanation of why he did not tell the officers about Bambi's presence: he did not want to "forever ruin[] his reputation amongst all of his other fellow prisoners and be known as an informant, snitch, or rat." Third Am. Compl. ¶ 11. But whatever reasons underlay Baines's decision not to inform the officers of the threat he perceived in going into the non-Red-ID cage with Bambi, the fact remains that the officers were ignorant of any threat to Baines.

  Baines implied at his deposition that the officers should have seen the "stare" in Bambi's eyes and thus known that Baines was in danger. See Baines Dep. at 91. Baines also makes a statement in his opposition papers that he has "present[ed] direct evidence of retaliation" by the officers. Pl. Mem. at 12. However, there is no factual basis in the record for either of these contentions. What is clear from the record is that Baines did not in any way direct the officers' attentions to the fact that an "old rival" was in the cage. See Baines Dep. at 91, 95, 97-99, 101-06; PL Mem. at 1; Third Am. Compl. ¶ 11.

  In sum, because there is no evidence that any of the individual defendants had any knowledge that Baines faced a substantial risk of harm, summary judgment must be granted in their favor. See Whitfield v. Scullv. 1996 WL 706932, at *3 (S.D.N.Y. Dec. 6, 1996) (granting summary judgment to defendants on failure to protect claim because "[p]laintiff has provided no evidence from which a reasonable jury could conclude that defendants were actually aware of a substantial risk of harm to plaintiff), affd. 164 F.3d 620 (2d Cir. 1998); Hazelwood v. Monroe. 1996 WL 312355, at *2 (S.D.N.Y. June 11, 1996) (dismissing claim because plaintiff failed to allege any "facts indicating that [the officer] was actually aware that plaintiff was subject to a Page 14 substantial risk of being attacked by another inmate").*fn2 Thus, there is no need to consider the defendants' alternative argument that the officers are entitled to qualified immunity.

  D. State Law Claims

  Defendants are also entitled to summary judgment on Baines's negligence claims under state law. Under New York law, the filing of a notice of claim within 90 days of the accrual of a cause of action is a condition precedent to bringing a tort action against the City or any of its officers. N.Y. Gen. Mun. Law § 50-e. This requirement has been strictly construed. See, e.g., Shakur v. McGrath. 517 F.2d 983, 985 (2d Cir. 1975) (per curiam); Baez v. N.Y.C. Health & Hosps. Corp., 80 N.Y.2d 571, 576 (1992): accord White v. City of New York, 285 A.D. 69, 69-70 (1st Dep't 1954) (per curiam) (suit precluded where notice of claim was filed one day late). A plaintiff's failure to file a notice of claim pursuant to state law requires a federal court to dismiss pendent state tort claims against the City or its officers for failure to state a cause of action. See, e.g., Hardy v. N.Y.C. Health & Hosps. Corp., 164 F.3d 789, 793 (2d Cir. 1999) ("New York's 90-day notice-of-claim requirement applies to state tort claims brought as pendent claims in a federal action." (citing Fincher v. County of Westchester. 979 F. Supp. 989, 1002 (S.D.N.Y. 1997))); accord Jones v. Nassau County Sheriff Dep't. 285 F. Supp.2d 322, 327 (E.D.N.Y. 2003); Brown v. Metro. Transp. Auth., 717 F. Supp. 257, 259 (S.D.N.Y. 1989).

  Here, Baines did not file a notice of claim within the 90 days following the accrual of his cause of action. The alleged assault occurred on March 5, 1998. His "Claim" — which was the Page 15 first notice received by the City — was not filed with the New York Court of Claims until June 2, 1999, almost 15 months after the incident. See Claim at 1.*fn3

  Baines appears to make two arguments in an attempt to avoid the bar contained in N.Y. Gen. Mun. Law § 50-e. First, he intimates that the limitations period contained in N.Y. Gen. Mun. Law § 50-i applies to the deadline for filing a notice of claim. See Pl. Mem. at 30. That provision states in relevant part that a lawsuit against the City must be brought within one year and 90 days of the incident. N.Y. Gen. Mun. Law § 50-i(1)(c). Baines's argument must be rejected because section 50-i states explicitly that a litigant must still comply with section 50-e. See id. § 50-i(1)(a). Second, Baines argues that the requirement of filing a notice of claim does not apply because his lawsuit was brought under a federal statute, 42 U.S.C. § 1983. See Pl. Mem. at 30. Baines is correct that the notice-of-claim requirement does not apply to actions under section 1983. However, as already noted, the notice-of-claim requirement does apply to state law causes of action brought in federal court under pendent jurisdiction. See, e.g., Hardy. 164 F.3d at 793.

  Accordingly, Baines's state law claims should be dismissed.


  For the foregoing reasons, defendants' motion for summary judgment should be granted and the case dismissed. Page 16


  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. P. Kevin Castel, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Castel. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Am. 474 U.S. 140 (1985).

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