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Cunningham v. City of New York


January 5, 2006


The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge.


I. Introduction

Plaintiff Kenneth Cunningham ("Cunningham") brings this pro se civil rights action, pursuant to 42 U.S.C. § 1983, against the City of New York ("City"), Laurence Rezkalla, M.D. ("Rezkalla"), and Kyaw Aung, M.D. ("Aung") (collectively, the "defendants"), alleging that they violated his constitutional rights by denying him adequate medical treatment after he suffered a back and hip injury while he was a pretrial detainee at the George Mochtan Detention Center ("GMDC") on Rikers Island. More specifically, Cunningham contends that GMDC medical staff failed to monitor his condition properly, denied him needed physical therapy, and refused to refill his prescription for Naprosyn, a pain killer.

Following the close of discovery, the City has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (See Docket Nos. 21, 22). For the reasons set forth below, the City's motion for summary judgment should be granted and this case dismissed.

II. Facts

Unless otherwise noted, the following facts are undisputed or are set forth in the light most favorable to Cunningham.

A. Alleged Deliberate Indifference

Cunningham was detained at the GMDC from November 2002 to July 2003. (See Def.'s R. 56.1 Stmt. ¶ 4). On February 20, 2003, Cunningham pulled a muscle in his right knee while exercising in his cell. (Id. at ¶ 5; Dep. of Kenneth Cunningham, taken on March 10, 2005 ("Cunningham Dep."), at 129). GMDC medical personnel gave Cunningham crutches as a result of this injury. (Def.'s R. 56.1 Stmt. ¶ 5; Cunningham Dep. at 133-34).

On February 21, 2003, as he was walking with his crutches at approximately 11:25 a.m., Cunningham fell down a flight of stairs, injuring his back and hip. (Def.'s R. 56.1 Stmt. ¶ 6; Decl. of Brian Morgan, Esq., dated June 3, 2005 ("Morgan Decl."), Ex. D (Feb. 21, 2003 Injury to Inmate Report); Cunningham Dep. at 133-35, 137). With the assistance of two other inmates, Cunningham proceeded to the mess hall. (Cunningham Dep. at 137). There, Correctional Officer Kiesha Gorham ("Gorham") was directed to file a report and call the medical unit. (Id. at 137-38).

After he left the mess hall, Cunningham walked up three flights of stairs with the assistance of other inmates and returned to the housing unit. (Id. at 139, 141). Once Cunningham arrived there, Gorham locked the inmates in their cells, called the medical unit, filled out an incident report, and gave Cunningham his own report to complete. (Id.; see also Morgan Decl. Ex. D). By no later than 5:05 p.m., Cunningham was examined and treated by Ida Brown ("Brown"), a physician's assistant at the GMDC Clinic. (Def.'s R. 56.1 Stmt. ¶ 11; Morgan Decl. Ex. C at 13).*fn1 Brown noted "no visible injury" and observed further that Cunningham had "mild tenderness," but was "comfortable . . . [and] not in severe pain." (Def.'s R. 56.1 Stmt. ¶ 12; Morgan Decl. Exs. C at 13-14, D). Brown requested that Cunningham be x-rayed and gave him a four-day supply of Motrin. (Def.'s R. 56.1 Stmt. ¶ 14; Cunningham Dep. 158; Morgan Decl. Ex. C at 14).

On February 27, 2003, when Cunningham returned to the GMDC Clinic to learn the results of his X-rays, Rezkalla informed him that he had a "spinal defect" from birth which was exacerbated by his fall down the stairs. (Cunningham Dep. 159; Morgan Decl. Ex. C at 16). Cunningham disagreed, telling Rezkalla that he had limited range of movement in his back following a car accident in 1996. (Cunningham Dep. 159). Cunningham also gave Rezkalla contact information for the chiropractor who had been treating him prior to his confinement. (Id.). That same day, after reviewing Cunningham's X-rays, Aung, who was the Site Medical Director at GMDC, scheduled Cunningham for a consult at the Orthopedic Clinic. (Def.'s R. 56.1 Stmt. ¶ 18; Morgan Decl. Ex. C at 16).

From February 2003 to April 2003, Cunningham was treated by medical personnel at the GMDC Clinic at least four times for his back injury. (See Cunningham Dep. 180; Def.'s R. 56.1 Stmt. ¶ 16; Morgan Decl. Ex. C at 13-21). During this same period, however, Cunningham refused to go to the Orthopedic Clinic on at least four occasions. (Cunningham Dep. at 188-89; Morgan Decl. Ex. C at 18-24). Cunningham allegedly refused because the clinic physician originally had recommended that he see a physical therapist and because attendance at the Orthopedic Clinic would have required that he wake up at 5:30 a.m. (Cunningham Dep. 192).

On March 6, 2003, Cunningham woke up and "couldn't move [his] legs." (Cunningham Dep. 150). Cunningham started screaming and was carried down the stairs to a stretcher by two inmates. (Id. at 165-66). The medical staff "came immediately" after Cunningham began to scream. (Id. at 166). When Cunningham arrived at the GMDC Clinic, a nurse gave him 500 milligrams of Naprosyn and the "pain went away." (Id. at 176; Morgan Decl. Ex. C at 17). He returned to the clinic on March 10, 23, and 31, 2003, complaining of back pain. (Morgan Decl. Ex. C at 17-19). During at least one of these visits, Cunningham received a prescription of Naprosyn for his pain. (Id. at 17, 19; Cunningham Dep. at 149-50). Despite this treatment, Cunningham contends that he should have been given more pain medication and "needed to see a doctor more" for his back injury. (Cunningham Dep. at 156, 180, 197). Although he complains about the severity of his condition, Cunningham went back to work at a job in the GMDC that required him to pick up garbage and strip, buff, and wax floors. (Id. at 171-72).

Cunningham filed two grievance complaints regarding his inadequate medical treatment in March and April 2003. (Id. at 197; Def.'s R. 56.1 Stmt. ¶ 31). He put the first complaint in the grievance box himself. (Cunningham Dep. at 197). After receiving no response over the next several weeks, Cunningham delivered his second complaint personally to a grievance officer, who explained that the office was "real backed up," but that he would "try to push [Cunningham's grievance] forward." (Id. at 197, 202).*fn2

B. Procedural History

Cunningham's original complaint is dated December 17, and was received by the Pro Se Office of the Court on December 22, 2003. (See Docket No. 2 at 1). Thereafter, by order dated November 15, 2004, Chief Judge Mukasey granted Cunningham's request to proceed in forma pauperis, but directed that he submit an amended complaint within sixty days. (See Docket No. 3).

On or about April 2, 2004, Cunningham filed an amended complaint substituting the "City of New York" for the "Department of Corrections" as a named defendant and naming several "John Doe" defendants. (See Docket No. 5). On or about April 9, 2004, the case was reassigned to Your Honor, who referred the case to me on June 2, 2004, for general pretrial supervision and a report and recommendation regarding any dispositive motions. (See Docket Nos. 4, 6).

On April 8, 2005, I directed the City to provide Cunningham with service addresses for Brown, Gorham, Rezkalla, and Aung, the four individuals whom Cunningham sought to substitute for the previously-named "John Doe" defendants. (See Docket No. 15). On April 15, 2005, the City complied with this order. (See Morgan Decl. Ex. I).

On or about July 27, 2005, the Pro Se Office received a second amended complaint in which Cunningham substituted Rezkalla and Aung for the "John Does." (See Docket No. 23).*fn3 Although he has had sufficient service information concerning Rezkalla and Aung for many months, Cunningham has never served either of them. (See Docket Nos. 28-30).

III. Discussion

A. Summary Judgment

Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate only when: 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.

In deciding a motion for summary judgment, the court must "view the evidence in the light most favorable to the party against whom summary judgment is sought and . . . draw all permissible inferences in favor of that party." Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997). The Court also must accept as true the non-moving party's evidence, if supported by affidavits or other evidentiary material. See Kulak v. City of New York, 88 F.3d 63, 70 (2d Cir. 1996). Assessments of credibility, choosing between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court. Fischl, 128 F.3d at 55. See also Fed. R. Civ. P. 56(e) 1963 advisory committee's note. Thus, "[t]he court's function is not to resolve disputed issues of fact but only to determine whether there is a genuine issue of material fact to be tried." Fischl, 128 F.3d at 55.

To defeat a motion for summary judgment, the non-moving party cannot merely rely upon allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the non-moving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

Although the same summary judgment rules apply to a party proceeding pro se, special latitude is appropriate to ensure that a meritorious claim is not foreclosed simply because the papers submitted in opposition to the motion are inartfully worded. See Morris v. Citibank, N.A., No. 97 Civ. 2127 (JGK), 1998 WL 386175, at *2 (S.D.N.Y. July 8, 1998); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976) (pro se complaint should be held to less stringent standard than formal pleadings drafted by counsel); McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (pro se pleadings should be read liberally and interpreted to "raise the strongest arguments that they suggest") (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). By the same token, however, "a pro se party's 'bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Odom v. Keane, No. 95 Civ. 9941 (SS), 1997 WL 576088, at *3 (S.D.N.Y. Sept. 17, 1997) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1995)). Accord Jorgensen v. Careers BMG Music Publ'g, No. 01 Civ. 0357 (LAP), 2002 WL 1492123, at *3 (S.D.N.Y. July 11, 2002).

B. Exhaustion of Administrative Remedies

The Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under § 1983 . . . , or any other Federal law, 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). An inmate consequently may not maintain an action challenging prison conditions under Section 1983 without first exhausting all available administrative remedies. Richardson v. Goord, 347 F.3d 431, 434 (2d Cir. 2003) (per curiam). This 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).

The PLRA's exhaustion requirement applies equally to civil rights actions brought by pretrial detainees. See, e.g., Baez v. Parks, No. 02 Civ. 5821 (PKC)(DF), 2004 WL 1052779, at *4 (S.D.N.Y. May 11, 2004); U.S. v. Al-Marri, 239 F. Supp. 2d 366, 367-68 (S.D.N.Y. 2002). As Judge Hellerstein has explained, the Inmate Grievance Resolution Program ("IGRP") established by the New York City Department of Correction provides such detainees with four opportunities for review:

First, they can file a grievance with the IGRP, after which an attempt is made to resolve the grievance informally within five business days. Should initial resolution prove impossible, the inmate may request a formal hearing before the Inmate Grievance Resolution Committee, which issues a formal recommendation. The inmate can appeal that recommendation to the Warden, who must render a decision within five business days. The Warden's decision can in turn be appealed to the Board of Corrections, which issues an advisory recommendation to the Commissioner, who is then given twenty business days to convey a decision to the inmate.

Orta v. City of New York Dep't of Corr., No. 01 Civ. 10997 (AKH), 2003 WL 548856, at *2 (S.D.N.Y. Feb. 25, 2003).

Courts in this District have at times excused thefailure to pursue all potential levels of administrative exhaustion when an inmate makes a "reasonable attempt" to do so, "especially where it is alleged that corrections officers failed to file the inmate's grievances or otherwise impeded or prevented his efforts." O'Connor v. Featherston, No. 01 Civ. 3251 (HB), 2002 WL 818085, at *2 (S.D.N.Y. Apr. 29, 2002); see also Rodriguez v. Hahn, No. 99 Civ. 11663 (VM), 2000 WL 1738424, at *2 (S.D.N.Y. Nov. 22, 2000) (letters in the possession of inmate suggested that he made a "reasonable attempt" to file grievances with corrections officers).

In this case, Cunningham claims to have filed two grievance complaints concerning his inadequate medical treatment claims. At his deposition, he testified under oath that he placed the first complaint "in the grievance box [him]self" and that, when there was no response, he prepared a second grievance complaint and "dropped . . . [it] off personally to the grievance officer." (Cunningham Dep. 197). Arguably, then, Cunningham attempted to pursue at least the first level of his available administrative remedies.

The defendants allege that the Grievance Coordinator at the GMDC has no record of either of Cunningham's alleged complaints. (See City Mem. at 16-17). However, the only "evidence" that they proffer in support of this contention is an unsworn memorandum prepared after this suit was filed, (see Morgan Decl. Ex. G), which plainly is inadmissible. See Fed. R. Civ. Proc. 56(e).

In these circumstances, although Cunningham has not shown that he fully exhausted his available remedies, I will assume, for purposes of the present motion, that Cunningham made a "reasonable attempt" to do so, and consider the merits of his claim.

C. Merits

1. Controlling Law

The Eighth Amendment's proscription of "cruel and unusual punishment" is violated by "deliberate indifference to [the] serious medical needs of prisoners." Estelle, 429 U.S. at 104. Since Cunningham alleges a deprivation of medical treatment while he was a pretrial detainee at GMDC rather than a convicted inmate, his claims must be analyzed under the Due Process Clause of the Fourteenth Amendment rather than the Eighth Amendment. See City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983); Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996). Although the Supreme Court "has left unresolved what standard applies" to such a claim, "a pretrial detainee's due process rights to adequate medical treatment are at least as great as the Eighth Amendment protections available to prison inmates." Bryant v. Maffucci, 923 F.2d 979, 983 (2d Cir. 1991) (citing City of Revere, 463 U.S. at 244)). The custodian of a pretrial detainee therefore may be found liable if he denied the detainee "treatment needed to remedy a serious medical condition and did so because of . . . deliberate indifference to that need." Weyant, 101 F.3d at 856.

The deliberate indifference standard thus incorporates both an objective and subjective test. First, a detainee must show that the alleged deprivation was, in objective terms, "sufficiently serious." See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). Second, the detainee must establish that the prison official acted with a "sufficiently culpable state of mind." Id. Under this standard, "only the deliberate infliction of punishment, and not an ordinary lack of due care for prisoner interests or safety, lead[s] to liability." Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999).

2. Application of Law to Facts

Turning to the first element of a deliberate indifference claim, courts have held that severe back pain can constitute a serious medical condition. See Flemming v. Velardi, No. 02 Civ. 4113 (AKH), 2003 WL 21756108, at *2 (S.D.N.Y. July 30, 2003) (quoting Nelson v. Rodas, No. 01 Civ. 7887 (RCC)(AJP), 2002 WL 31075804, at *14 (S.D.N.Y. Sept. 17, 2002) ("Severe back pain, especially if lasting an extended period of time, can amount to a 'serious medical need' under the Eighth Amendment.")); Branch v. Brown, No. 01 Civ. 8295 (DC), 2003 WL 21730709, at *14 (S.D.N.Y. July 25, 2003) (claim of chronic back pain may give rise to a deliberate indifference claim).

Cunningham argues with respect to the second subjective element of his claim that the GMDC medical staff's delay in responding to his injury on the day of the incident, its alleged failure to monitor his condition adequately and to refill his prescription for pain, and the denial of the physical therapy treatment he requested all constitute "deliberate indifference" to his serious medical needs. (See Cunningham Mem. at 3-9). Each of these contentions lacks merit.

On the date he fell down the stairs, Cunningham's injury was promptly reported to the GMDC medical staff. Thereafter, when he was seen by a physician's assistant, Cunningham had no visible injury and exhibited only mild tenderness. The physician's assistant who examined him nevertheless ordered that Cunningham be xrayed and supplied him with Motrin. He therefore was treated for the symptoms he presented under circumstances which do not suggest any deliberate indifference to his needs on the part of GMDC personnel. While he arguably might have been seen sooner, Cunningham has not shown that the delay was so egregious as to have threatened his health. See Evans v. Bonner, 196 F. Supp. 2d 252, 256 (E.D.N.Y. 2002) ("alleged injury to the plaintiff resulting from not getting his medicine 'on time' does not rise to a 'sufficiently serious' level"). Indeed, as the City accurately points out, the delay in this case likely was no longer than what Cunningham might have encountered had he been seen in a hospital emergency room in the New York area. (See City Reply Mem. at 4).

Additionally, rather than failing to monitor his condition, the GMDC staff plainly sought to diagnose and treat it by sending him for an outside orthopedic consultation. Indeed, Cunningham's medical chart shows, and he does not deny, that he was repeatedly urged to see the orthopedist, but refused to comply. (See Morgan Decl. Ex. C at 18 ("Refused ortho on 2/28/03"), 19 (Mar. 31, 2003, entry noting refusal "this AM"), 20 (noting that Cunningham "refused to go to orthopedic clinic on April 16, 2003, even though the "[r]isk [was] explained"), 21 (Apr. 23, 2003, note indicating that Cunningham was "refusing . . . orthopedic clinic this AM"), 22-24 (Refusal of Treatment Progress Notes). In light of this undisputed record, there is no basis for Cunningham's contention that the GMDC medical staff failed to attend to his condition. See Rodas, 2002 WL 31075804, at *16 (citing Brown v. Selwin, 250 F. Supp. 2d 299, 308 (S.D.N.Y. 1999) (rejecting deliberate indifference claim where plaintiff refused medical treatment on several occasions)).

Although Cunningham alleges that he should have continued to receive Naprosyn to control his "chronic to extreme back pain" after his initial supply ran out, (see Cunningham Mem. at 8), he has failed to adduce any expert testimony that this was medically necessary. Moreover, even if such testimony were part of the record, in the absence of any showing that the GMDC staff acted with a culpable mental state, Cunningham's assertion that additional medication was warranted at most amounts to an allegation of malpractice. It is settled law, however, that this is not enough to make out a deliberate indifference claim. See, e.g., Wandell v. Koenigsmann, No. 99 Civ. 8652 (WHP), 2000 WL 1036030, at *5 (S.D.N.Y. July 27, 2000) ("[d]efendants' decision to provide plaintiff with over-the-counter pain medication rather than prescription medication . . . may be actionable as a claim of malpractice but does not rise to the level of a constitutional violation").

Finally, Cunningham's complaint that the GMDC medical staff refused to send him to a physical therapist is nothing more than an attempt to second-guess the course of treatment that he was prescribed. In his papers, Cunningham seeks to draw a distinction between orthopedics, which he defines (without attribution) as "the branch of medicine dealing with the correction of deformities of bones and muscles," and physical therapy, which he defines (again without attribution) as "the treatment of disease, injury or deformities by physical methods such as massage, heat treatment, and exercise rather than by drugs or surgery." (Cunningham Mem. at 4). Cunningham also states that he previously had received treatment from his own chiropractor, and that if Rezkalla had talked to that provider, "he would've known that physical therap[]y is the best treatment for [his] injury." (Id.). Even if Cunningham is correct that physical therapy would have been a more effective response to his complaints -- a claim which is sheer speculation -- it is settled law that a mere disagreement as to the proper course of treatment is not enough to give rise to a constitutional claim. See Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) ("So long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation."); Muhammad v. Francis, No. 94 Civ. 2244 (SS), 1996 WL 657922, at *6 (S.D.N.Y. Nov. 13, 1996) ("It is well established that mere differences in opinion regarding medical treatment do not give rise to an Eighth Amendment violation."); McCloud v. Delaney, 677 F. Supp. 230, 232 (S.D.N.Y. 1988) (Although a prisoner is entitled to medical care, "there is no right to the medical treatment of one's choice.").

In sum, Cunningham has failed to adduce evidence from which a reasonable juror could conclude that the GMDC medical staff acted with deliberate indifference in its treatment of a serious medical condition.

D. Municipal Liability Under Section 1983

Even if Cunningham were able to establish deliberate indifference on the part of GMDC medical staff members, the City cannot be held liable as their employer on a respondeat superior theory. See Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690-91 (1978). Instead, to prevail on a Fourteenth Amendment claim against the City, Cunningham would have to establish that the City was, "in the language of [Section 1983], 'the person who . . . subject[ed], or cause[d] [him] to be subjected,' to the deprivation of his constitutional rights." Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 817 (1985) (first brackets added)). He therefore must "first prove the existence of a municipal policy or custom in order to show that the municipality took some action that caused his injuries" and, second, "establish a causal connection . . . between the policy and the deprivation of his constitutional rights." Id.

"The policy or custom used to anchor liability need not be contained in an explicitly adopted rule or regulation." Sorlucco v. New York City Police Dep't, 971 F.2d 864, 870 (2d Cir. 1992). Rather, as Judge Sweet recently explained,

[a] plaintiff may satisfy the "policy, custom or practice" requirement in one of four ways. See Moray v. City of Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y. 1996). The plaintiff may allege the existence of (1) a formal policy officially endorsed by the municipality, see Monell, 436 U.S. at 690; (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question, see Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986) (plurality opinion); Walker v. City of New York, 974 F.2d 293, 296 (2d Cir. 1992); (3) a practice so consistent and widespread that it constitutes a custom or usage sufficient to impute constructive knowledge of the practice to policymaking officials, see Monell, 436 U.S. at 690-91; or (4) a failure by policymakers to train or supervise subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees. See City of Canton v. Harris, 489 U.S. 378, 388 (1989).

Allan v. City of New York, 386 F. Supp. 2d 542, 545 n.3 (S.D.N.Y. 2005).

In this case, Cunningham alleges only that the City should be held liable because he was "in the custody, care and control" of the GMDC, which therefore was "responsible for [his] safety . . . [and] health." (Cunningham Surreply Mem. at 3). Indeed, he goes so far as to suggest that he became "City property" upon his arrival at the GMDC. (Id. at 4). Even if the Court were to accept this argument, for the City to be held liable for the alleged misconduct of the GMDC medical staff, Cunningham would have to prove the existence of a policy, custom, or practice that caused the violation of his constitutional rights. Here, he plainly has not. Accordingly, his claim against the City must be dismissed.

E. Individual Defendants

Finally, even if Cunningham were able to establish a violation of his constitutional rights by the GMDC staff, his claims against the individual defendants would also have to be dismissed since they were never served. Under Rule 4(m) of the Federal Rules of Civil Procedure, the summons and complaint in an action ordinarily must be served within 120 days after the complaint is filed.

Here, Cunningham's original complaint was officially docketed on March 15, 2004. (See Docket No. 2 at 1). Thereafter, summonses were issued on March 23, 2004. (See Docket No. 7) (Letter from Cunningham to the Court dated June 20, 2004). For that reason, by memorandum endorsement dated June 24, 2004, I directed Cunningham to effect service by August 23, 2004. (Id.). Although I subsequently extended the time for service on several occasions, and directed the City to supply service addresses for the individual defendants, Cunningham has never caused Rezkalla or Aung to be served. (See Docket Nos. 8, 15, 17, 18). In his surreply memorandum, Cunningham alleges that his time for service should not have expired because he had until August 22, 2005, to serve a second amended complaint. (See Cunningham Surreply Mem. at 6). However, even if that calculation was correct, Cunningham has not effected service on Rezkalla and Aung, the only individuals named in his second amended complaint, in the many months since then. Accordingly, even if Cunningham were able to establish a violation of his constitutional rights, his claim against the individual defendants would have to be dismissed pursuant to Rule 4(m) for failure to effect service.

IV. Conclusion

For the foregoing reasons, defendant City's motion for summary judgment should be granted and this case dismissed.

V. Notice of Procedure for Filing of Objections to this Report and Recommendation

The parties shall have ten days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a) and (e). Any such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Richard C. Casey at the United States Courthouse, 500 Pearl Street, New York, New York 10007, to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. Any requests for an extension of time for filing objections must be directed to Judge Casey. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72(b).

FRANK MAAS United States Magistrate Judge

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