MEMORANDUM-DECISION AND ORDER*fn1
This action was filed by Plaintiff, Francisco J. Molina ("Plaintiff") on December 2, 2008 in the Eastern District of New York. By stipulation of the parties, the action was transferred to the Northern District of New York on April 21, 2009. Dkt. Nos. 7-8. Plaintiff's Complaint (Dkt. No. 1) alleges, pursuant to 42 U.S.C. § 1983, violations of his rights under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments, as well as claims of negligence and assault and battery.
On December 4, 2006, Plaintiff was allegedly violently assaulted by Defendants Cyril Stephens ("Stephens"), Arthur Myers ("Myers"), Scott Pelky ("Pelky"), and John and Jane Does (collectively, "the Detention Aides"), Detention Aides at the Louis Gossett Jr. Residential Center ("Gossett"), a youth correctional facility operated and maintained by the State of New York Office of Children and Family Services ("OCFS"). Compl. ¶¶ 7-9. At the time, Plaintiff was 17 years old and in the custody of Gossett. Id. Plaintiff claims that the assault occurred after he failed to immediately respond to a Detention Aide's command to stop performing push-ups in the Gossett gym. Plaintiff alleges that the Detention Aides grabbed him, shoved him against a wall, placed him in a choke hold, twisted his arm behind his back and pushed on it with the full weight of their bodies until it "popped." Allegedly, during the assault, Plaintiff begged for relief, but the Detention Aides did not stop until they realized that they had broken Plaintiff's arm. Id. ¶¶ 11-16. Plaintiff alleges that, despite the obviously severe injury he had sustained, he was not provided with immediate medical care. Id. ¶¶ 19, 22. Plaintiff alleges that the assault left him with a severe fracture requiring surgery, Radial Nerve Palsy, and other physical and mental injuries from which he remains disabled and which will require ongoing medical care with associated costs. Id. ¶¶ 23-24.
OCFS provides for a grievance procedure available to any resident wishing to formally complain about any aspect of their residency in an OCFS facility, including circumstances of a physical restraint. Preston Aff. (Dkt. 11-2) ¶ 2. Plaintiff alleges that, immediately after the incident, he filed a "Grievance Form" but received no response from anyone at Gossett. Pl.'s Aff. (Dkt. No. 23-4) ¶ 4. Gossett's Grievance Log shows no record of any grievance being filed. Preston Aff. ¶ 3. Despite there being no record of a formal complaint, OCFS sent Plaintiff's father a letter noting a report made to the New York State Child Abuse and Maltreatment Register dated December 5, 2006 that named Plaintiff as the subject of an inquiry. Dkt. No. 23-3. That report notes allegations of inappropriate custodial conduct resulting in Plaintiff's fracture. Id. It also includes the following narrative: "On December 4, 2006 . . . Cyril (Duty Officer) restraint Francisco (age 17) after the child was behaving inappropriately . . . . At some point during the incident the child sustained a broken right arm. There is reason to believe that excessive force was being used . . ." Id. Plaintiff contends that this Report is evidence that he did report the incident. Pl.'s Aff. ¶ 5.
Plaintiff alleges that Defendants State of New York, OCFS, Division of Youth ("DOY"), Gossett, Joseph Impicciatore ("Impicciatore"), John Johnson ("Johnson"), and the Detention Aides (collectively, "Defendants") failed to provide him with "safe and secure custody consistent with good and accepted practices in the field of youthful detention." Compl. ¶ 25. Plaintiff claims Defendants subjected him to wanton and unnecessary infliction of pain and emotional distress, unreasonable excessive force, and unsafe restraint holds; provided inadequate training of the Detention Aides; and inadequately responded to Plaintiff's injuries. Id.
Plaintiff claims that the above actions and omissions demonstrated deliberate indifference and/or willful neglect and resulted in the violation of his right to be free from cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Id ¶¶ 44-45, 63. He further alleges that Defendants' actions and failure to provide him with safe custodial care and adequate medical care deprived him of his liberty without due process as guaranteed by the Fifth and Fourteenth Amendments. Id ¶¶ 50, 67. Plaintiff further claims that Defendants' failure to provide him with adequate protection from retaliation, safe custody, and immediate medical care deprived him of his right to free speech under the First and Fourteenth Amendments. ¶¶75-76. Plaintiff also alleges that Defendants' conduct constituted an unreasonable search and seizure in violation of his rights under the Fourth and Fourteen Amendments. ¶¶ 79-80. Finally, Plaintiff alleges negligence and/or gross negligence and assault and battery on the part of Defendants. Id ¶¶ 57, 71. He seeks compensatory and punitive damages for his injuries and alleged civil rights violations.
Defendants filed a Motion for summary judgment for failure to exhaust remedies, or, in the alternative, Motion for summary judgment with regard to Defendant Impicciatore and Motion to dismiss (a) all Plaintiff's claims in their entirety against Defendants State of New York, OCFS, DOY, Gossett, Johnson and Impicciatore; and (b) Plaintiff's First, Fourth, Fifth, and Fourteenth Amendment claims against all Defendants; and (c) Plaintiff's Fifth Cause of Action alleging deliberate indifference or willful neglect in violation of the Eighth Amendment against Defendants Stephens, Myers, and Pelky. (Dkt. No. 11).
Federal Rule of Civil Procedure 56 provides that summary judgment is proper 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." FED. R. CIV. P. 56(c); Beard v. Banks, 548 U.S. 521, 529 (2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). A court must "'resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing the judgment.'" Brown v. Henderson, 257 F.2d 246, 251 (2d Cir. 2001) (quoting Cifra v. General Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
If the moving party meets its initial burden of demonstrating that no genuine issue of material fact exists for trial, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Corp., 475 U.S. 574, 586 (1986) (citations omitted). The non-movant "must come forth with evidence sufficient to allow a reasonable jury to find in her favor." Brown, 257 F.3d at 251 (citation omitted). The nonmoving party "may not rely merely on allegations or denials in its own pleadings" and bald assertions unsupported by evidence are insufficient to overcome a motion for summary judgment. FED. R. CIV. P. 56(e)(2); see Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990).
When considering a motion to dismiss under 12(b)(6), a district court must accept the factual allegations made by the non-moving party as true and "draw all inferences in the light most favorable" to the non-moving party. In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007). "The movant's burden is very substantial, as 'the issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims.'" Log On America, Inc. v. Promethean Asset Mgmt. L.L.C., 223 F. Supp. 2d 435, 441 (S.D.N.Y. 2001) (quoting Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995) (internal quotation and citations omitted)). In order to survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, U.S. , 29 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. Next, if plaintiff provides well-pleaded factual allegations, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.
A. Exhaustion of Remedies
Defendants' move for summary judgment on the grounds that Plaintiff failed to exhaust his administrative remedies pursuant to the Prison Litigation Reform Act ("PLRA"). Defs.' Mot. to Dismiss (Dkt. No. 11). At summary judgment, Defendants have the burden of proving failure to exhaust as an affirmative defense. Lewis ex rel. Lewis v. Gagne, 281 F. ...