United States District Court, N.D. New York
MANN LAW FIRM, PC MATTHEW J. MANN, ESQ. Attorneys for Plaintiffs Latham, New York
DREYER, BOYAJIAN LAW FIRM JOHN B. CASEY, ESQ. Attorneys for Defendants Albany, New York.
MEMORANDUM-DECISION AND ORDER 
CHRISTIAN F. HUMMEL, Magistrate Judge.
Plaintiffs Luis Lluberes ("Lluberes") and Eric Gillette ("Gillette") bring this action pursuant to 42 U.S.C. § 1983 alleging that defendants, the City of Troy, Troy Police Department ("Troy PD"), ten Troy PD officers, two public information officers of Troy, and John and Jane Does, violated his constitutional rights under the First, Fourth, and Fourteenth Amendments. Compl. (Dkt. No. 1). Plaintiffs also assert pendent state law claims. Id . Presently pending are defendants' and plaintiffs' motions for summary judgment pursuant to Fed.R.Civ.P. 56. Dkt. Nos. 60, 62. Both parties filed responses and replies. Dkt. Nos. 66, 68, 72, 74. For the following reasons, defendants' motion is granted in part and denied in part and plaintiffs' motion is denied.
At all relevant times, the allegations and events occurred in Troy, New York.
On August 29, 2010, just after midnight, Lluberes, a Rensselaer Polytechnic Institute ("RPI") engineering student, left a party on Thirteenth Street with a gathering of people to attend another party on Fifteenth Street. Compl. ¶ 25; Lluberes Dep. (Dkt. No. 60-3 at 137-235) at 141, 151-56. Prior to leaving the Thirteenth Street party, Lluberes had consumed a drink containing four to five shots of Vodka and a cup of beer and was intoxicated. Lluberes Dep. at 151-57.
On Fifteenth Street, Lluberes entered a house located between Sage Avenue and Peoples Avenue. Lluberes Dep. at 159-60. Inside the house, Lluberes engaged in a physical confrontation with a RPI hockey player. Id. at 25-27. A group of RPI hockey players escorted Lluberes out of the house and to the sidewalk. Id. at 164-66. Lluberes became upset and testified that someone pushed him twice from behind as he walked away from the house. Id. at 166-67, 169-74. Lluberes next recalls being handcuffed in the middle of Fifteenth Street. Id. at 174-75. Lluberes does not recall how he became facedown on the street. Id. at 182.
Lluberes alleges that when he was pushed into the street, defendants and Troy PD Police Officers Anderson, Ashe, Charles Castle ("Castle"), Brandon Cipperly ("Cipperly"), William Fitch ("Fitch"), and J. McNall ("McNall") accosted and arrested him. Compl. ¶¶ 7-9, 11-12, 16, 26, 30; Lluberes Dep. at 168. Lluberes denies having been told to disperse. Compl. ¶¶ 27, 49; Lluberes Dep. at 3. During the arrest, Lluberes was thrown to the ground, beaten by the officers with hands, batons, and booted feet, and charged with resisting arrest pursuant to New York Penal Law § 205.30, harassment in the second degree pursuant to New York Penal Law § 240.26(1), and disorderly conduct pursuant to New York Penal Law § 240.20(6). Compl. ¶¶ 29, 52; Dkt. No. 1-3 (arrest record dated 08/29/10); Dkt. No. 178 (certificate of disposition).
Specifically, Lluberes testified that when he was lying on the ground, an officer kneed him in the back while he was struggling to bring his arms behind him. Lluberes Dep. at 177. Lluberes recalls yelling for help when he was being handcuffed and was told to keep quiet. Id. at 177-78. Lluberes recalls receiving three strikes to the head with a baton even though he was already handcuffed. Id. at 179. After being hit in the head, Lluberes felt blood coming down his face and into his mouth. Id. at 181. Lluberes received an appearance ticket that night. Id. at 198; Dkt. No. at 60-6 at 183 (appearance ticket).
Photographs of Lluberes taken at the police station show cuts on the back of the head, right knee, and left elbow and blood dried all over the face and head. Dkt. No. 68-11 at 2-6. A video recording of the incident shows the tail-end of an arrest where an individual is lying on the ground with the hands behind the back. Dkt. No. 68-10 at 150. Although unclear, it appears a police officer is kneeling on the individual on the ground. Id . At the end of the video, an officer approaches and asks the person filming the incident to disperse. Id.
Sarah Weisberg ("Weisberg"), a RPI student and an acquaintance of Lluberes, saw Lluberes on the porch of a fraternity house when she heard a commotion. Weisberg Aff. (Dkt. No. 68-9 at 110-13) ¶¶ 2, 5-6. Weisberg saw Lluberes moving away from the commotion with his hands in the air. Id . ¶ 6. Four officers arrived at the scene. Id . ¶ 7. A "large and stocky" officer came up from behind Lluberes and placed his hand on Lluberes's right shoulder. Id . ¶ 9. Lluberes shrugged off the officer's hand. Id . ¶ 10. Weisberg attested that Lluberes never shoved an officer. Id . ¶ 11. Weisberg then witnessed three male officers beating Lluberes and heard Lluberes cry for help. Id . ¶ 14. Weisberg heard Lluberes state that he could not put his hands behind his back because he was being kneed in the spine. Id . Weisberg saw the stocky officer strike Lluberes three times in the back of the head while Lluberes was on the ground. Id . ¶ 15. Weisberg attested that Lluberes did not resist arrest. Id . ¶ 16.
Defendants proffer a different account of the August 29, 2010 incident. After midnight on August 29, 2010, Cipperly, Fitch, Castle, and Ashe arrived at Fifteenth Street on a "park, walk, and talk" overtime detail to patrol for rowdy RPI students. Ashe Dep. (Dkt. No. 60-5 at 61-116) at 71; Castle Dep. (Dkt. No. 60-4 at 115-66) at 129; Cipperly Dep. (Dkt. No. 60-4 at 167-232) at 180-81; Fitch Dep. (Dkt. No. 60-5 at 2-59) at 12-13; Hoffman Dep. (Dkt. No. 60-6 at 2-31) at 15. The officers were in the RPI area due to several citizen complaints about noise volume and RPI students leaving debris in the road or destroying property. Castle Dep. at 129; Cipperly Dep. at 181. The officers observed a large crowd on the sidewalk and proceeded to disperse it. Ashe Dep. at 72; Castle Dep. at 129; Cipperly Dep. at 174, 185; Fitch Dep. at 14-15.
When Cipperly attempted to disperse the crowd, Lluberes approached him, screaming obscenities. Cipperly Dep. at 185. Fitch witnessed Lluberes running towards and grabbing Cipperly. Fitch Dep. at 16, 18. Cipperly informed Lluberes to leave or Lluberes would be arrested; however, Lluberes refused to leave. Cipperly Dep. at 185. Cipperly told Lluberes that he was under arrest. Id . Lluberes pushed Cipperly in the chest with two hands. Ashe Dep. at 75; Castle Dep. at 130, 136; Cipperly Dep. at 185; Fitch Dep. at 20; Dkt. Nos. 60-6 at 193 (Castle Report), at 195 (Fitch Report), at 199 (Cipperly Control/Restraint Report). Cipperly then struck Lluberes three times in the leg with his baton as Lluberes stood punching and kicking. Cipperly Dep. at 190; Cipperly Control/Restraint Report. Fitch grabbed Lluberes from behind because Lluberes refused to put his hands behind his back. Fitch Dep. at 26. Lluberes swung his arms at the officers, refused to go down, and pulled the officers into the street. Id. at 28-29.
Ashe, Fitch, and Cipperly took Lluberes to the ground in the street. Ashe Dep. at 78; Fitch Dep. at 29. Ashe had grabbed Lluberes by the waist and pushed him over her right leg. Ashe Dep. at 78. Once he was on the ground, Lluberes continued to push himself off the ground, kicking and swinging at the officers. Fitch Dep. at 30. While on the ground, Lluberes grabbed at Cipperly's baton and refused to put his hands behind his back. Ashe Dep. 86-87; Fitch Dep. at 30-31; Hoffman Dep. at 13-14; Fitch Report; Cipperly Control/Restraint Report. This led Ashe to knee Lluberes in the left side four times. Ashe Dep. at 81. Fitch kneed Lluberes twice. Fitch Dep. at 34-41; Fitch Report. Cipperly testified that during the struggle, he attempted to strike Lluberes in the shoulder but because Lluberes moved, he struck Lluberes in the head. Cipperly Dep. at 191, 194; Cipperly Control/Restraint Report. Altogether, Cipperly hit Lluberes three times in the legs, twice in the shoulders, and once on the head. Cipperly Dep. at 194.
McNall drove to the scene and observed Cipperly lying on top of Lluberes on the streets. McNall Dep. (Dkt. No. 60-5 at 118-69) at 135-38. McNall approached and struck Lluberes in the right knee with his baton because Lluberes refused to comply with orders to put his hands behind his back and resisted arrest. McNall Dep. at 140-42; Dkt. No. 60-6 at 191 (McNall Report).
Castle was speaking to two students when he saw Lluberes pushing Cipperly with both hands. Castle Dep. at 130, 136. By the time Castle arrived at the incident, Lluberes was already handcuffed. Id. at 136. Castle did not witness the arrest because a crowd of people was in his line of vision. Id. at 139.
On May 8, 2011, at approximately 4:00 a.m., Lluberes was arrested by Troy PD and charged with two counts of disorderly conduct of making unreasonable noise pursuant to New York Penal Law § 240.20(2) and refusing to move pursuant to New York Penal Law § 240.20(6). Compl. ¶¶ 33, 60; Lluberes Dep. at 69, 77; see also Dkt. No. 1-4 (arrest record dated 05/08/11); Dkt. No. 179 (certificate of disposition). Lluberes alleges that defendant Anderson was involved in that incident. Compl. ¶¶ 17-18, 61. Lluberes testified that he was intoxicated and walking home with a group of people. Lluberes Dep. at 207.
Tedesco and Sergeant Thomas Hoffman testified that, based on their review, the use of force in the August 29, 2010 arrest was reasonable and justified. Tedesco Dep. (Dkt. No. 60-6 at 32-84) at 45, 48, 50-51, 69; Hoffman Dep. at 22. When Hoffman arrived at Fifteenth Street, Lluberes was in custody in the back of a patrol car. Hoffman Dep. at 9-10.
On February 7, 2011, the Troy City Court dismissed the disorderly conduct charge accrued from the August 29, 2010 arrest, finding the charge to be insufficiently pled on the face of the accusatory instrument. Dkt. No. 62-6 at 117.
On October 21, 2011, before the Troy City Court, Lluberes pled guilty to one count of New York Penal Law § 240.20(3) in full satisfaction of all pending charges from the August 29, 2010 and May 8, 2011 arrests. Dkt. No. 60-6 at 178-79 (certificate of disposition), 181 (plea sheet). One pending charge was pursuant to § 240.20(6), accrued on May 8, 2011. Dkt. No. 60-6 at 181. The terms of the plea included a waiver of appeal. Id.
On or about November 19, 2010, Lluberes served a notice of claim on the City of Troy. Compl. ¶ 44; Dkt. No. 1-1 (notice of claim). The notice of claim alleged that Lluberes suffered from a laceration to his head and scalp which required hospitalization and suturing as well as psychological and emotional distress. Dkt. No. 1-1.
On December 30, 2010, Gillette, an engineer, had returned home from work and consumed an estimate of three drinks of whiskey before walking to a bar. Gillette Dep. (Dkt. No. 60-3 at 2-84) at 6, 20-22; Gillette 50-h (Dkt. No. 60-3 at 86-134) at 106. Gillette testified that he probably also drank at the bar. Gillette Dep. at 23. After midnight, Gillette was intoxicated, left the bar stumbling with blurry vision, and was accosted by defendants and Troy PD Police Officers Anderson, Cipperly, Hoffman, Christopher Parker ("Parker"), and Charles Rockwell ("Rockwell"). Compl. ¶¶ 13-15, 34-35; Gillette Dep. at 26-27, 29-30; Gillette 50-h at 107-108. Gillette and the officers exchanged words and Gillette remembers an officer stating, "you must feel pretty stupid now." Gillette Dep. at 28-29;
Gillette 50-h at 114. Gillette recalls being turned around, shoved against a vehicle, thrown to the ground, and assaulted throughout the body with hands, batons, and booted feet. Compl. ¶¶ 73, 76; Gillette Dep. at 31, Gillette 50-h at 111-12, 123. Gillette does not recall who had hit him or being told that he was under arrest. Gillette Dep. at 32-33. Gillette testified that he recalls drafting a statement dated January 13, 2011, in which he wrote that he was sitting in a snowbank when officers helped him to his feet. Id. at 44; Dkt. No. 60-3 at 136 (Gillette statement). However, he did not remember anything else about that situation. Gillette Dep. 44. Gillette testified he would not be able to identify the officers who accosted him because he was intoxicated. Gillette 50-h at 109.
Gillette recalls being placed in the back of a police vehicle and held at a police station. Gillette Dep. at 33-34. The next morning, Gillette received a ticket to reappear and was released. Id. at 37-38. In short, Gillette had physical contact with the police officers but cannot proffer any specifics of the contact nor can he recall being arrested and processed at the police station. Id. at 32-36.
Defendants argue a different set of facts. Defendants contend that on December 30, 2010, at approximately 1:43 a.m., Cipperly called out through a radio transmission that Gillette was sleeping on a stairwell on Fourth Street. McNall Dep. (Dkt. No. 66-5 at 118-169) at 149; Rockwell Dep. (Dkt. No. 60-5 at 171-93) at 179. Gillette was highly intoxicated. Parker Dep. (Dkt. No. 60-5 at 194-217) at 204; Dkt. No. 60-6 at 162 (Arrest Report dated 12/30/10). McNall, Parker, and Rockwell responded to the scene. McNall Dep. at 149; Rockwell Dep. at 179. Gillette was screaming in the middle of the street in the presence of Cipperly and Parker. Cipperly Dep. (Dkt. No. 60-4 at 167-232) at 210; Dkt. No. 60-6 at 160 (Incident Report dated 12/30/10). Upon Gillette's refusal to Cipperly's repeated orders to leave, Cipperly and Parker told Gillette that he was under arrest yet Gillette refused to place his hands behind his back. Incident Report dated 12/30/10.
Cipperly, McNall, Parker, and Rockwell attempted to place Gillette in custody but Gillette resisted. Dkt. No. 60-6 at 169 (Rockwell Report), 171 (McNall Report), 173 (Cipperly Report), 175 (Parker Control/Restraint Report); Rockwell Dep. at 181. Parker took Gillette to the ground and fought with Gillette to get the hands out from underneath the body. Parker Control/Restraint Report. Rockwell struck Gillette several times in the shoulder with his flashlight, two of which glanced off Gillette's shoulder and landed on the back of his head. Rockwell Dep. at 181-82; Rockwell Report. Cipperly struck Gillette in the upper right back with a baton because Gillette refused to comply with orders to stop resisting and put his hands behind his back. Cipperly Report. McNall put pressure on Gillette's foot to stop him from kicking and when Gillette continued, McNall struck Gillette twice in the buttocks with his baton and once in the right lower leg. McNall Dep. at 150-51; McNall Report. Force was used until Parker handcuffed Gillette. Cipperly Dep. at 214.
Gillette was charged with disorderly conduct in violation of Penal Law § 240.20(2) and resisting arrest in violation of Penal Law § 205.30, which were disposed by an adjournment in contemplation of dismissal ("ACD") in February 2011. Compl. ¶ 36; Gillette Dep. at 39, 55-56, 61-62; Arrest report dated 12/30/10; Dkt. No. 60-6 at 165 (criminal complaints sworn to 12/30/10). Gillette maintains that he is not the type of person who would behave in the manner as charged. Gillette Dep. at 59. As a result of the incident, Gillette contends that he suffered from injuries to the hands, fingers, face, left shoulder, back, and neck. Compl. ¶ 77; Gillette Dep. at 49-51, 53-55. Photographs taken of Gillette show a cut above the left eyebrow. Dkt. No. 60-6 at 163.
Gillette alleged that on or about March 25, 2011, he served a notice of claim on the City of Troy. Compl. ¶ 45; Dkt. No. 62-5 at 44-45 (notice of claim).
C. New York Freedom of Information Law
On October 21, 2010, plaintiffs' counsel made requests for information pursuant to New York Freedom of Information Law ("FOIL"). Compl. ¶ 131; Dkt. No. 1-5 (FOIL Request). On June 6, 2011, plaintiffs' counsel made another FOIL request. Compl. ¶ 132; Dkt. No. 1-6 (FOIL Request to Pirro).
On August 25, 2011, defendant and Public Information Officer Jeffrey Pirro, denied such requests. Compl. ¶¶ 20, 40, 134; Dkt. No. 1-7. Pirro stated that the FOIL requests dated June 6, 2011 and August 22, 2011 were denied due to pending litigation. Dkt. No. 1-7. Pirro was aware that a notice of claim was filed on behalf of Lluberes and believed it commenced a legal action. Pirro Dep. (Dkt. No. 60-6 at 143-58) at 7. On August 26, 2011, plaintiffs' counsel appealed the denial to defendant and Corporation Counsel Charles Sarris, Esq. Compl. ¶ 135; Dkt. No. 1-8. On September 2, 2011, Sarris granted in part and denied in part the appeal. Compl. ¶¶ 21, 41, 136; Dkt. No. 1-9; Sarris Dep. (Dkt. No. 60-6 at 86-141) at 45. Plaintiffs' counsel sought reconsideration on September 14, 2011, which Sarris denied on September 16, 2011. Compl. ¶ 137; Dkt. Nos. 1-10, 1-11.
D. Monell Claim
Plaintiffs submit a letter dated January 27, 2005 from the Honorable Chief Judge Gary L. Sharpe to Chief Nicholas Kasier of Troy PD. Dkt. No. 68-10 at 2-3. The letter indicates that after a recent jury trial involving Troy PD, the jurors were upset that the Troy PD "did not have a commitment to investigating citizen use of force complaints.... It was their distinct view... that there was no real effort by internal affairs to investigate those complaints." Dkt. No. 68-10 at 2.
By memorandum dated December 12, 2007, Tedesco wrote to then Troy Corporation Counsel David Mitchell, indicating that the Internal Affairs' investigation in the department was suspect. Dkt. No. 68-10 at 5. Tedesco asked Corporation Counsel to intervene and conduct a proper examination of a witness. Id.
Plaintiffs submit Troy PD's General Order No. 06.01 on the use of physical force. Dkt. No. 68-11 at 10-13. The policy states that "[p]olice officers may use only the level of physical force necessary in the performance of their duties...." Further, police officers may use force "[t]o effect the lawful arrest of a person resisting arrest or attempting to flee from custody... [or i]n self-defense or in the defense of another person." Id. at 10.
Lluberes challenges the constitutionality of § 240.20(6) and contends that the individual defendants violated his First Amendment right to assemble by enforcing the statute. Compl. ¶¶ 50, 61; Dkt. No. 59 at ¶ 2. Lluberes contends that the individual defendants violated his (1) Fourth Amendment rights by falsely arresting and imprisoning and using excessive force against him and (2) Fourteenth Amendment due process rights by enforcing Penal Law § 240.20(6) and failing to intervene the assaults against him. Compl. ¶¶ 48, 50-51, 59, 65, 69, 96-97; Dkt. No. 59 ¶ 2. Gillette contends that the individual defendants violated his (1) Fourth Amendment rights by falsely arresting and imprisoning and using excessive force against him and (2) Fourteenth Amendment due process rights by failing to intervene the assaults against him. Compl. ¶¶ 72, 74, 82. Plaintiffs also contend that certain defendants violated their rights under NY FOIL. Compl. ¶¶ 43, 131-40.
Plaintiffs further assert Monell claims against defendants the City of Troy, Troy PD, and Tedesco based on Tedesco's failure to supervise, train, and discipline subordinates and deliberate indifference to the misconduct of subordinates. Compl. ¶¶ 79-80, 84-87, 90-93; Dkt. No. 59 ¶ 3. Specifically, plaintiffs contend that Tedesco either failed to institute written policies on issues such as the use of force or instituted such policies but was deliberately indifferent to their violations. Dkt. No. 59 ¶ 3. Plaintiffs also bring pendent state law claims of false arrests, assault and battery, and excessive force against the individual defendants and contend that the City of Troy, Troy PD, and Tedesco are liable for these claims based on a theory of respondeat superior. Compl. ¶¶ 138-39, 143-45, 148-49, 150, 153-55, 157, 159-60, 162, 164-65, 167-69, 171-73. Plaintiffs allege that due to defendants' actions, they sustained physical injuries, loss of income, and emotional distress. Compl. ¶¶ 88, 98, 102.
Defendants asserted a counterclaim seeking reasonable attorney's fees if they become the prevailing party. Dkt. No. 4 ¶ 200.
Defendants move for summary judgment, arguing that: (1) the arrests of Lluberes and Gillette were grounded on probable cause; (2) defendants Anderson, Castle, Hoffman, and Tedesco were not personally involved in the alleged violations; (3) excessive force was not used against Lluberes and Gillette; (4) they are entitled to qualified immunity; (5) plaintiffs' Monell claims should be dismissed; (6) Lluberes lacks standing to challenge the constitutionality of Penal Law § 240.20(6); (7) there is no private cause of action under FOIL and defendants Pirro and Sarris cannot be held liable under FOIL; (8) the FOIL claim and the constitutional challenge to § 240.20(6) should be severed from the § 1983 claims; (9) the claims of Lluberes and Gillette should be severed or bifurcated into separate trials; and (10) John and Jane Doe defendants should be dismissed for failure to prosecute.
Plaintiffs argue for summary judgment on the following: (1) Penal Law § 240.20(6) is unconstitutional; (2) the City of Troy and other defendants are liable for enforcing Penal Law § 240.20(6); (3) defendants falsely arrested plaintiffs; (4) defendants violated their NY FOIL rights; and (5) defendants' counterclaim should be stricken as a sanction for violating a court order.
A. Legal Standard
A motion for summary judgment may be granted if there is no genuine issue as to any material fact if supported by affidavits or other suitable evidence and the moving party is entitled to judgment as a matter of law. The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). Facts are material if they may affect the outcome of the case as determined by substantive law. Anderson v. Liberty Lobby , 477 U.S. 242, 248 (1986). All ambiguities are resolved and all reasonable inferences are drawn in favor of the non-moving party. Skubel v. Fuoroli , 113 F.3d 330, 334 (2d Cir. 1997).
The party opposing the motion must set forth facts showing that there is a genuine issue for trial. The non-moving party must do more than merely show that there is some doubt or speculation as to the true nature of the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs. , 22 F.3d 1219, 1223-24 (2d Cir. 1994); Graham v. Lewinski , 848 F.2d 342, 344 (2d Cir. 1988).
B. Municipal Liability
This Court sua sponte addresses municipal liability and claims against defendants in their official capacities. See Hines v. City of Albany , 542 F.Supp.2d 218, 227 (N.D.N.Y. 2008) (addressing such claims despite defendants' failure to do so).
Municipalities are considered "persons" who can be sued under § 1983. Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 690 (1978). "A police department is an administrative arm of the municipal corporation." Leland v. Moran , 100 F.Supp.2d 140, 145-46 (2000) (citing Baker v. Willett , 42 F.Supp.2d 192, 198 (N.D.N.Y. 1999). Further, "[a] police department cannot sue or be sued because it does not exist separate and apart from the municipality and does not have its own legal identity." Id . (citing inter alia East coast Novelty Co. v. City of New York , 781 F.Supp. 999, 1010 (S.D.N.Y. 1992)). Here, plaintiffs' claims against the City of Troy and the Troy PD are redundant. Because the Troy PD is an administrative arm of the City of Troy, the claims asserted against the Troy PD are dismissed. The real party in interest here is the City of Troy. Leland , 100 F.Supp.2d at 145-46. Moreover, plaintiffs are barred from suing the individual defendants in their official capacities. This is because "claims against a government employee in his official capacity are treated as a claim against the municipality." Hines , 542 F.Supp.2d at 227 (citing Hafer v. Melo, 502 u.S. 21, 25 (1991)). Thus, all claims against the individual defendants in their official capacities are dismissed.
Accordingly, plaintiffs' claims against the Troy PD and individual defendants in their official capacities are dismissed from this action.
C. Personal Involvement
Defendants argue that defendants Anderson, Castle, Hoffman, and Tedesco are not personally involved in the alleged constitutional violations. "[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith , 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield , 950 F.2d 880, 885 (2d Cir. 1991)). Thus, supervisory officials may not be held liable merely because they held a position of authority. ...