United States District Court, S.D. New York
February 5, 2004.
WILLIE BAINES, Plaintiff, -v.- THE CITY OF NEW YORK, EDWARD BENOIT, GARY LEWIS, and MICHAEL CONNORS, Defendants
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
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.
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.
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.
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
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,
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")
(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
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).
II. SUMMARY JUDGMENT STANDARD
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,
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.
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
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
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
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.
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
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
to an alleged assault, the deliberate indifference claim is not
excluded under the terms of the [`Inmate Grievance Resolution
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
prison official, or lack of due care, will not suffice to establish
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."
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
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
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.
PROCEDURE FOR FILING OBJECTIONS TO THIS
REPORT AND RECOMMENDATION
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