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Brooks v. Brennan

United States District Court, N.D. New York

November 17, 2014

DERRICK BROOKS, Plaintiff,
v.
RYAN P. BRENNAN, Secure Care Treatment Aide, CNYPC; CHRISTOPHER D. SMITH, Secure Care Treatment Aide, CNYPC; LAURA SMITH-CREASER, R.N., Ward Nurse/Supervisor for Ward 605, CNYPC; and BRETT DAVIS, Secure Care Treatment Aide, CNYPC, Defendants.

DERRICK BROOKS, Plaintiff Pro se, #172542, Central New York Psychiatric Center, Marcy, New York.

CATHY Y. SHEEHAN, ESQ., Assistant Attorney General. HON. ERIC T. SCHNEIDERMAN, Attorney General for the, State of New York, Attorney for Defendants Ryan Brennan, Christopher D. Smith, Laura Smith-Creaser, The Capitol, Albany, New York 12224-0341.

ARMOND J. FESTINE, ESQ., Attorney for Defendant Brett Davis, Utica, New York 13502.

REPORT-RECOMMENDATION AND ORDER[1]

CHRISTIAN F. HUMMEL, Magistrate Judge.

Plaintiff pro se Derrick Brooks, who is currently involuntarily committed as a patient at the Central New York Psychiatric Center ("CNYPC"), brings this action pursuant to 42 U.S.C. § 1983, alleging that defendants Brett Davis, Ryan P. Brennan, Christopher D. Smith - Secure Care Treatment Aides ("SCTA") at CNYPC - and Laura Smith-Creaser, ward nurse/supervisor at CNYPC, violated his constitutional rights under the Eighth Amendment. Compl. (Dkt. No. 1). In a Report-Recommendation and Order of this court dated June 19, 2013 (Dkt. No. 26), defendants' motion to dismiss (Dkt. No. 21) was granted insofar as (a) the Eleventh Amendment bar for claims against the individual defendants in their official capacities; (b) defendants Hogan, Bosco, Nowicki, and Maxymillian's personal involvement defense; and (c) the Eighth Amendment verbal threat claims against defendants Brennan and Smith; and (2) denied as to the Eighth Amendment (a) excessive force claims against defendants Brennan and Smith; and (b) failure to protect claims against defendants Davis and Smith-Creaser. Dkt. No. 26, at 18-19; Dkt. No. 28. Presently pending are (1) defendant Davis's motion for summary judgment (Dkt. No. 39), and (2) defendants Brennan, Smith, and Smith-Creaser's motion for summary judgment (Dkt. No. 41), all pursuant to Fed.R.Civ.P. 56.

I. Failure to Respond

The Court notified Brooks of the response deadline. Dkt. No. 42. Defendants Brennan, Smith, and Smith-Creaser also provided notice of the consequence of failing to respond to the motion for summary judgment. Dkt. No. 41-1. Despite this notice, Brooks did not respond.

"[S]ummary judgment should not be entered by default against a pro se plaintiff who has not been given any notice that failure to respond will be deemed a default." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996). Thus, "[t]he fact that there has been no response to a summary judgment motion does not... mean that the motion is to be granted automatically." Id. at 486. Even in the absence of a response, defendants are entitled to judgment only if the material facts demonstrate their entitlement to judgment as a matter of law. Id .; FED. R. Civ. P. 56 (c). "A verified complaint is to be treated as an affidavit... and therefore will be considered in determining whether material issues of fact exist...." Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995) (internal citations omitted); see also Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir.2004) (same). The facts set forth in defendants' Rule 7.1 Statements of Material Facts (Dkt. No. 39-2; Dkt. No. 41-3) are accepted as true as to those facts that are not disputed in Brooks's complaint. N.D.N.Y.L.R. 7.1 (a) (3) ("The Court shall deem admitted any properly supported facts set forth in the Statement of Facts that the opposing party does not specifically controvert.").

II. Background

A. Brooks's Version of Events

The facts are reviewed in the light most favorable to Brooks as the non-moving party. See subsection II(A) infra. At all relevant times, Brooks was involuntarily committed in CNYPC's Sex Offender Treatment Program ("SOTP"). Compl. ¶ 1. On May 24, 2011, Brooks alleges that, pursuant to the facility policy, he asked defendant Davis to notify the nurse administrator that he wanted to switch wards because he feared for his safety. Compl. ¶ 17. Davis told Brooks that he would not notify the nurse administrator of his request. Id . Subsequently, defendant Smith-Creaser came out of the nurse's station and told Brooks that there was no nurse administrator available and that she would not contact one for him. Id . ¶ 19. Defendant Brennan, who had overheard the discussion between Brooks and Smith-Creaser, came out of the break room and ordered Brooks to go into the "side room" - a room "used to temporarily separate one resident from the others" -and Brooks complied. Compl. ¶ 20; Dkt. No. 39-3, at 2. Brennan then made a phone call to another ward, and five minutes later, defendant Smith arrived at the side room and spoke with Brennan. Compl. ¶ 20. Brooks alleges that defendants Brennan and Smith then "jumped" him by knocking him to the floor, and punching and kicking him in the head, shoulders, arms, and sides. Id .; Dkt. No. 1-2, at 2.[2] Brooks further alleges that the assault took place in the presence of defendants Brooks and Smith-Creaser, and lasted for 15 minutes before Smith-Creaser requested assistance by "drop[ping] the Red-Phone."[3] Compl. ¶ 21; Dkt. No. 25, at 6-7.

Brooks's complaint suggests that Brennan was the aggressor and does not discuss whether he used force against either defendant. Compl. ¶ 21. However, the record provides that Brooks pleaded guilty to assault in the third degree in violation of New York State Penal Law § 120.00 for assaulting defendant Brennan during this incident. Dkt. No. 41-6, at 2.[4] After accepting the guilty plea, Brooks was granted a conditional discharge if he followed CNYPC's rules and stayed out of trouble for one year. Id . The record provides that at an appearance on the revocation of the conditional discharge, Brooks conceded that he assaulted Brennan on May 24, 2011, but contended that he was acting in self-defense. Dkt. No. 47-1, at 58.

Brooks contends that Smith-Creaser gave him a physical examination the same day as the alleged assault. Compl. ¶ 22. He also states that a representative from the office of risk management interviewed him and took pictures of his "injuries and bruises." Id . Brooks alleges that he suffered cuts; bruises; swelling of the eyes, face, and mouth; headaches; pain in the neck, back, arms, and hands; and had difficulty moving his arms. Dkt. No. 25, at 6, 9.

After the May 24 incident, Brooks was placed on a "one on one level."[5] Compl. ¶ 23. Smith-Creaser did not provide Brooks with an explanation for the designation. Id . In addition, Brooks alleges that, despite an order of separation instructing defendants Brennan and Smith to avoid contact with Brooks, Smith would come to Brooks's ward and would "mak[e] jokes" about the May 24 incident and threaten him by telling him "this is not over." Id . ¶ 24. Defendant Smith told Brooks that he would "kill [his] black ass." Id . ¶¶ 24-25, 27.

Brooks seeks declaratory and injunctive relief and compensatory and punitive damages. Compl. at 8-9.

B. Defendants Smith and Brennan's Version of Events

Defendants Smith and Brennan contend that, during dinner on May 24, 2011, Brooks threatened a resident after he refused to give Brooks his tray of food. Dkt. No. 41-2, at 1. Defendant Brennan told Brooks that such conduct was inappropriate. Id .; Dkt. No. 1-1, at 17. Shortly thereafter, Brooks took a bag of clean personal clothing from another resident's room. Dkt. No. 1-1, at 17. Brennan asked Brooks why he had the clean clothing when it was not his laundry day. Id . Brooks replied, "mind your own fucking business bitch." Dkt. No. 41-2, at 1. Brennan told Brooks that his actions were "inappropriate and would be documented." Id . Within five minutes of the laundry incident, Brennan observed Brooks taking a radio from another resident's room. Id . When Brennan told Brooks that his conduct was in violation of CNYPC's policy and ordered him to return the radio, Brooks stated, "yo man why you ducking with me. I ain't gonna take this shit much longer, treating me like a bitch nigga." Id .; Dkt. No. 1-1, at 17. Brennan alleges that Brooks then raised his voice at staff and clenched his fists, so Brennan directed Brooks to go to the side room. Dkt. No. 41-2, at 2. Brooks entered the side room, mumbling words under his breath, and ignored orders to sit in a chair in the back of the side room. Id . Instead, Brooks stood in the doorway of the side room and yelled "your [sic] all pussys" to staff down the hall. Id . Brennan approached Brooks and told him to sit in the blue chair at the back of the side room, to which Brooks responded, "ya know... you're a bitch nigga." Id.

Thereafter, Brooks "charged Defendant Brennan, throwing multiple punches at Defendant Brennan's face and head areas." Dkt. No. 41-2. at 2. In response, Brennan "attempted multiple punch defections and then wrapped [Brooks's] upper body to prevent plaintiff [from] striking him anymore." Id .; Dkt. No. 1-1, at 17. The struggle resulted in Brooks and Brennan falling into the right side of the door frame. Id . Once Brooks and Brennan were on the ground, Brooks "continued to smash Brennan's body into the side room door frame and wall." Dkt. No. 41-2, at 2. Thereafter, "extra staff" came to the side room to assist Brennan. Id . Brennan, along with "[a]nother [SC]TA performed a two person manual removal placing... Brooks back into the side room." Id . During this struggle, Brooks tripped Brennan and punched him in the neck and shoulder. Id. at 3. Brennan then left the side room. Id.

Dr. Joseph Colosi, director of CNYPC's medical department, also examined Brooks on May 24. Dkt. No. 41-3. Medical records taken that day reveal that Brooks's injuries were: a small abrasion to the left side of his head with mild tenderness; left elbow pain; minimal swelling of the elbow; some "facial bone tenderness"; and pain in the fourth and fifth knuckles of his left hand, with "some swelling and tenderness noted." Dkt. No. 41-4, at 2; Dkt. No. 41-3, at 1-2. X-rays of Brooks's left hand came back negative. Dkt. No. 41-2, at 3. Dr. Colosi opined that Brooks's injuries were more consistent with a struggle than being punched or kicked. Dkt. No. 41-3, at 2. Dr. Colosi also noted that, shortly after the alleged assault, Brooks was seen punching a wall with the hand he claimed was injured by defendants. Dkt. No. 41-4, at 2.

C. Defendant Davis's Version of Events

Defendant Davis contends that on the evening of May 24, 2011 Brooks witnessed a conversation between defendants Brennan and Smith-Creaser by the nurses' station, wherein Brennan told Smith-Creaser that he observed Brooks in the dining area bullying other residents. Dkt. No. 39-3, at 2. Davis also "vaguely recall[ed]" a conversation about Brooks taking clean laundry belonging to other residents. Id . After witnessing this conversation, Davis went to the day room, which was at the other end of the hall from the nurses' station. Id. at 3. "Very shortly after" going to the day room, Davis "became aware that someone had dropped a red phone, ' as [he] heard the sound of people walking quickly, doors opening and closing... The residents in the day room that were then under [his] supervision became aware that something was amiss...." Id . Davis contends that he "did not witness the incident as occurring between [Brooks] and defendants Brennan and... Smith. [He] was some 50-60 feet away, at another end of the ward" and that he "at all times remained in the day room supervising those residents who were present therein." Id.

III. Discussions[6]

Brooks argues that defendants Brennan and Smith violated the Eighth Amendment's prohibition on cruel and unusual punishment by using excessive force against him. He further contends that defendants Smith-Creaser and Davis violated the Eighth Amendment by failing to protect him from Brennan and Smith's assault.

A. Legal Standard

A motion for summary judgment may be granted if there is no genuine issue as to any material fact, it was 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 providing the court with 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, Inc., 477 U.S. 242, 248 (1986). All ambiguities are resolved and all reasonable inferences 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, and must do more than show that there is some doubt or speculation as to the true nature of the facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). For a court to grant a motion for summary judgment, it must be apparent that no rational finder of fact could find in favor of the non-moving party. Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223-24 (2d Cir.1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir.1988).

Where, as here, a party seeks judgment against a pro se litigant, a court must afford the non-movant special solicitude. See Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.2006). As the Second Circuit has stated,

[t]here are many cases in which we have said that a pro se litigant is entitled to "special solicitude, "... that a pro se litigant's submissions must be construed "liberally, "... and that such submissions must be read to raise the strongest arguments that they "suggest, ".... At the same time, our cases have also indicated that we cannot read into pro se submissions claims that are not "consistent" with the pro se litigant's allegations, ... or arguments that the submissions themselves do not "suggest, "... that we should not "excuse frivolous or vexatious filings by pro se litigants, "... and that pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law....

Id. (citations and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92 (2d Cir.2008).

B. Eighth Amendment

Brooks contends that defendants Smith and Brennan violated the Eighth Amendment prohibition on cruel and unusual punishment because they maliciously and sadistically used excessive force against him. He further asserts that defendants Smith-Creaser and Davis violated the Eighth Amendment for failing to protect him from the abuse. In response, defendants contend that only minimal force was used as was necessary to control Brooks after he attacked defendants Brennan and Smith. Although Brooks raises his excessive force claim under the Eighth Amendment, because he had been released by the New York State Department of Corrections and Community Supervision to CNYPC upon the completion of his prison term, remaining at CNYPC as a civilly-committed sex offender, his claims predicated on violations of the Eighth Amendment will be analyzed under the Due Process clause of the Fourteenth Amendment. See, e.g., Yeldon v. Sawyer, 10-CV-266 (TJM/RFT), 2012 WL 1995839, at *4 (N.D.N.Y. Apr. 26, 2012) (holding that an involuntarilycommitted individual's allegations of cruel and unusual punishment "are instead analyzed and evaluated under the due process clause of the Fourteenth Amendment") (citations omitted); Lane v. Carpinello, 07-CV-751 (GLS/DEP), 2009 WL 3074344, at *18, *22 (N.D.N.Y. Sept. 24, 2009) (citing Youngberg v. Romeo, 457 U.S. 307, 312 (1982)). In general, however, the standards to evaluate excessive force involve the same analysis under both the Eighth and Fourteenth Amendments. See Groves v. Davis, 11-CV-1317 (GTS/RFT), 2014 WL 4684998, at *8, citing Youngsberg, 457 U.S. at 315-16 (additional citations omitted).

1. Excessive Force

A plaintiff seeking to demonstrate a claim of excessive force must demonstrate both objective and subjective components. The subjective component focuses on the defendant's motive for his or her conduct ( Hudson v. McMillian, 503 U.S. 1, 7-8 (1992)), and requires a showing that the defendant "had the necessary level of culpability, shown by actions characterized by wantonness" in light of the particular circumstances surrounding the challenged conduct. Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir.1999) (quoting Wilson v. Seiter, 501 U.S. 294, 299 (1991)); see, e.g., Sims v. Artuz, 230 F.3d 14, 21 (2d Cir.2000); Davidson v. Flynn, 32 F.3d 27, 30, n.2 (2d Cir.1994). The objective component focuses on the effect of the conduct, or the "harm done, in light of contemporary standards of decency." See Wright v. Goord, 554 F.3d 255, 268 (2d Cir.2009) (quoting Hudson, 503 U.S. at 7-8).

In addressing excessive force claims for civilly-committed plaintiffs, the Second Circuit has stated that a reviewing court is to consider:

the need for the application of force, the relationship between the need and amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.... [I]f the force was maliciously or sadistically [employed] for the very purpose of causing harm in the absence of any legitimate government objective and it results in substantial emotional suffering or physical injury, then the conduct is presumptively unconstitutional.... [M]alicious and sadistic abuses of government power that are intended only to oppress or to cause injury and serve no legitimate government purpose unquestionably shock the conscience.... [C]onduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.

Johnson v. Newburgh Enlarged School Dist., 239 F.3d 246, 251-52 (2d Cir.2001) (internal quotation marks and citations omitted).

Here, Brooks argues that defendants Brennan and Smith used excessive force because they ambushed him, apparently without provocation, and then beat him throughout his entire body for a period of fifteen minutes, resulting in injuries. Compl. ¶ 21. Conversely, defendants insist that they used only the force necessary to control Brooks after he assaulted Brennan, and that any injures Brooks suffered are de minimis. Dkt. No. 41-8, at 4. In support of this claim, defendants submit a CNYPC internal report describing the incident; Dr. Colosi's report concluding that Brooks's injuries were likely from a struggle, rather than an assault; and Brooks's plea colloquy wherein he pleaded guilty to assaulting defendant Brennan. Dkt. No. 1-1, at 17; Dkt. No. 41-3, at 6-9; Dkt. No. 41-6.

a. Estoppel

Although defendants have not explicitly raised an estoppel argument in their motion for summary judgment, they have contended that Brooks's assault conviction requires dismissal of his excessive force claim on the merits. To properly address such argument, it appears appropriate to the undersigned to assess what consequences, if any, the assault conviction may have on Brooks's excessive force claim.

An assault conviction does not bar an individual from bringing a claim for excessive force under section 1983, even where the conviction arises out of the same occurrence and involves the same defendants if excessive force was not relevant to, and not raised in, the criminal action. See Jeanty v. County of Orange, 379 F.Supp.2d 533, 544 (S.D.N.Y. 2005) (holding that the plaintiff's conviction for assaulting a corrections officer did not collaterally estop the plaintiff's later excessive force claim brought under section 1983 where the criminal court "did not find that [the] plaintiff was not assaulted nor that [the] plaintiff was not subjected to unnecessary and wanton infliction of pain."). Moreover, Brooks's section 1983 claim is not barred by Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that

in order to recover damages for [an] allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus."

Id. at 486-87. If Brooks succeeded in his excessive force claim, the success would not necessarily demonstrate the invalidity of his conviction for assault in the third degree. In Douglas v. Smith, the court concluded that if the plaintiff were successful on his excessive force claim, his second degree assault conviction would be invalidated because, as part of the assault plea, the plaintiff admitted that he assaulted the defendant with the intent to disrupt the officer from his lawful duties and cause injury. No. 05-CV-1000, 2009 WL 789450, at *2 (N.D.N.Y. Jan. 26, 2009). Since disruption of lawful duties was an element of the second degree assault charge to which the plaintiff had pleaded guilty, the court concluded that his contradictory argument in his 1983 claim could invalidate that criminal conviction if accepted by the court. Id . By contrast, in Caban v. Hendry, the plaintiff's assault plea did not necessarily require him to contend that he prevented the defendant from performing his lawful duty. 09-CV-1227 (DNH/GHL), 2011 WL 2600620, at *4 (N.D.N.Y. Jun. 2, 2011). Thus, the court concluded that a successful excessive force claim would not invalidate the assault conviction. Id.

Like in Caban, Brooks's plea to Penal Law § 120.00 did not require him to admit that he attempted to prevent Brennan from exercising his lawful duties. Id .; Penal Law § 120.00. Further, it can be true that Brooks assaulted defendant Brennan and that, in response, defendants Brennan and Smith utilized force maliciously and sadistically. Indeed, Brooks contends that defendants beat him for a period of fifteen minutes and that the assault continued even after he collapsed to the floor. Dkt. No. 25, at 6, 11. Further, even if, arguendo, Brooks' excessive force claim would be barred due to the assault conviction against defendant Brennan, there is no assault conviction arising out of this incident with respect to defendant Smith.

Here, based on the record provided, it appears that when Brooks pleaded guilty to assault in the third degree, the only issue raised was whether he assaulted defendant Brennan. It does not appear that the court addressed whether Brooks used force on defendant Smith, whether either defendant used excessive force on Brooks, or if it decided which party was the aggressor. Further, although Brooks later stated that he assaulted Brennan in self-defense, he conceded that he pleaded guilty to the assault. Dkt. No. 47-1, at 58.

Therefore, the fact that Brooks pleaded guilty to assaulting Brennan in connection with the May 24 incident does not mean that Brooks is precluded from bringing his excessive force claim against Brennan and others.

b. Merits of Excessive Force Claim

Affording Brooks due solicitude, if Brooks's recitation of the facts are proven, the severity of Brennan and Smith's use of force in response to Brooks's assault on Brennan was unreasonable. In Jeanty, the court provided that, "whether the individual defendants were justified in using force... to restrain the plaintiff after he assaulted [the officer] is analytically different from whether they used appropriate amount of force.... particularly where [the] plaintiff alleges that they continued to beat him after he was subdued." 379 F.Supp.2d at 545. Although Brennan and Smith contend that Brooks was the aggressor and only minimal force was used during this period, Brooks claims that defendants punched him in the face, eyes, nose, mouth, ears, head, neck, back, arms, side, stomach, and chest for period fifteen minutes, and continued to do so even after he collapsed to the floor. Dkt. No. 25, at 6, 9, 11. It is not entirely clear from Brooks's complaints and submissions whether he was restrained at the time he fell to the floor. However, viewing the facts in the light most favorable to Brooks, defendants' use of force in excess of what was needed to maintain control and order serves no legitimate governmental purpose and is in violation of the Fourteenth Amendment. Johnson, 239 F.3d at 251-52.

Thus, there are several issues of material fact that preclude summary judgment on this ground. Even acknowledging Brooks's assault conviction, the parties dispute the amount of force used by defendants, whether defendants' use of force was reasonable in relation to the need to maintain control over Brooks, and whether defendants or Brooks acted as the aggressor. Where "competing evidence rests on the credibility of [the plaintiff] on one hand and defendants on the other... the governing law that the evidence must be viewed in the light most favorable to the non-moving party, leaves no choice but to credit [the plaintiff's] version of events...." Espinosa v. McCabe, 2012 WL 4108884, *9 (N.D.N.Y. Aug. 28, 2012). Further, in a cause of action for excessive force, "[r]esolution of credibility conflicts and the choice between these conflicting versions are matters for the jury and [are] properly not decided by the district court on summary judgment." Robison v. Via, 821 F.2d 913, 924 (2d Cir.1987).

Accordingly, because material issues of fact exist, it is recommended that Brennan and Smith's motion for summary judgment be denied on this ground.

2. Failure to Protect

Brooks alleges that defendants Davis and Smith-Craser failed to protect him because (1) they ignored his request to switch wards out of his fear for his personal safety, and (2) they failed to immediately intervene to protect him from Brennan and Smith's assault. Like a claim of excessive force, an involuntarily civilly-committed plaintiff's failure to protect claims are analyzed under the Fourteenth Amendment; however, the court notes that the "Second Circuit has yet to address the correct standard to be applied when evaluating a failure to protect claim arising out of an involuntary commitment, and there appears to be some uncertainty regarding the matter." Lane, 2009 WL 3074344, at *18.

Courts in this circuit have acknowledged that it is unclear whether a failure to protect claim set forth by a civilly-committed individual should be analyzed under a "substantial departure standard, " a general substantive due process analysis, or under the less burdensome standard of deliberate indifference. See Yeldon, 2012 WL 1995839, at *7. The substantial departure standard requires the plaintiff to demonstrate that an official's decision was a "substantial departure from accepted professional judgment, practice or standards" Vallen v. Carrol, 02-Civ-5666 (PKC), 2005 WL 2296620, *8 (S.D.N.Y. Sept. 20, 2005), (quoting Youngberg, 457 U.S. at 323). A general substantive due process analysis would ask the plaintiff to show that the defendant "intended to injure [plaintiff] in some way unjustified by [any]... governmental interest and most likely rise to the conscience-shocking level." Id . (quoting County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998)). Finally, a deliberate indifference analysis requires the plaintiff to demonstrate that prison officials acted with "deliberate indifference" in failing to protect the inmate from harm. See Farmer v. Brennan, 511 U.S. 825, 834.

Courts that have addressed which standard is most appropriate to apply to an involuntarily-committed plaintiff's failure to protect claims have indicated, in dicta, that the substantial departure standard and the general substantive due process standard are inapplicable to an analysis of involuntarily-committed plaintiff's failure to protect claim. McChesney v. Hogan, 08-CV-0563 (NAM/DEP), 2010 WL 3613806, at *5 (N.D.N.Y. Aug. 11, 2010) (concluding that the deliberate indifference standard "best accommodates the constitutional concerns implicated in connection with section 1983 claims brought by involuntarily committed mental patients based on alleged failures to protect them in violation of their substantive due process rights"); Parks v. City of New York, 04 Civ. 2490(DC), 2006 WL 944659, at *5 (S.D.N.Y. Apr. 11, 2006) (citation omitted) ("Failure-to-protect claims are treated as challenges to conditions of confinement and, accordingly, [the] plaintiff must demonstrate deliberate indifference."); Vallen 2005 WL 2296620, at *8-*9 (concluding that substantial departure analysis and substantive due process analysis ill-suited for addressing an involuntarily-committed plaintiff's failure to protect claim). For example, in Vallen v. Carroll, the court concluded that the substantial departure standard had "no applicability, " to a failure to protect claim brought by an involuntarily-committed plaintiff. Id . In doing so, the court noted that, the standard's "professional judgment" analysis was not appropriate where the defendants were "low-level staff members" who were addressing day-to-day issues, rather than "higher-level decisions." Id.[7]

Next, the Vallen court also concluded that application of the conscious-shocking analysis of the general substantive due process standard "demands too much of such plaintiffs' substantive due process claims, " and suggested that it placed too a heavy burden on an involuntarily-committed plaintiff. 2005 WL 2296620, at *9; see also McChesney, 2010 WL 3613806 at *5. Thus, the undersigned agrees with the Vallen court and its progeny that the most appropriate standard to apply when assessing involuntarilycommitted plaintiff's failure to protect claims brought under section 1983 is the deliberate indifference analysis applied to Eighth Amendment claims.

As discussed above, the deliberate indifference analysis requires the plaintiff to demonstrate that the defendants were (1) aware of a substantial risk of harm and (2) that they were deliberately indifferent to that harm. The plaintiff must show that the deprivation was "sufficiently serious" and that the defendant had a culpable state of mind. Branham v. Meachum, 77 F.3d 626, 630-31 (2d Cir.1996); see also Farmer, 511 U.S. at 837; Hayes v. New York City Dept. of Corr., 84 F.3d 614, 620 (2d Cir.1996). A plaintiff meets his or her burden of demonstrating a sufficiently serious deprivation where he or she alleges that the deprivation posed a substantial risk of serious harm. Farmer, 511 U.S. at 834. The second prong, or the "deliberate indifference" prong, is met where the defendant knew of and disregarded an excessive risk to the plaintiff's health or safety by failing to take reasonable measures to avoid the harm. Id.

First, Brooks contends that Davis and Smith-Creaser were aware of a substantial risk of harm - an assault by defendants Smith and Brennan -because he informed them that he wanted to switch wards because feared for his safety. Compl. ¶¶ 17-19; Dkt. No. 25, at 2. Although Brooks alleges that he informed Smith-Creaser that he feared for his safety, he does not specifically argue that he told Smith-Creaser that what he feared was an assault at the hands of Smith and Brennan. Compl. ¶ 17. The record is similarly unclear as to whether Brooks specifically told Davis that he feared an assault by Smith and Brennan or whether Brooks assumed that Davis knew the source of Brooks's fear. Dkt. No. 25, at 2 ¶¶ 4-5. Brooks suggests that Davis refused his request to speak with a nurse administrator because Davis did not want to get Smith and Brennan into trouble. Dkt. No. 25, at 2, 5. Because Brooks fails to explicitly state that he told Smith-Creaser and Davis that he wanted a transfer because he feared that Smith and Brennan would harm him, he has not proven that Smith-Creaser or Davis had actual knowledge of a serious risk of harm based on his statement that he feared for his safety. See e.g. Shell v. Brun, 585 F.Supp.2d 465 (W.D.N.Y. 2008) (holding that, to establish deliberate indifference, a plaintiff must demonstrate that defendants had knowledge of a specific risk to the plaintiff's safety); see also Farmer, 511 U.S. at 838 (holding that a defendant's failure to alleviate a significant risk that he or she should have perceive, but did not, will not establish deliberate indifference).

Brooks next appears to suggest that, even absent his verbal complaints on May 24, 2011, Davis and Smith-Creaser were aware of the serious risk that Brennan posed to him because they were aware of Brennan's history of threatening Brooks with physical harm. Dkt. No. 1-1, at 3-4. Brooks provides evidence that Mental Hygiene Legal Services contacted CNYPC's quality management office on his behalf to inform them that Brennan harassed Brooks and made threats against his safety in 2009 and 2010. Id . However, "verbal statements alone do not indicate a substantial threat of serious harm." See, e.g., Desulma v. City of New York, No. 98 Civ. 2078, 2001 WL 798002, at *6-*7 (S.D.N.Y. July 6, 2001). Thus, Brennan's past harassing behaviors is insufficient to establish defendants' knowledge of a substantial risk of harm.

Brooks also alleges that Davis and Smith-Creaser were aware of a risk of serious harm because they knew that both Brennan and Smith had a history of assaulting CNYPC residents. Dkt. No. 1-1, at 3-4. However, Brooks's unsupported allegation that Brennan and Smith had a history of assaulting patients at CNYPC is not persuasive. Brooks does not provide any factual support for this claim. Cf. Farmer, 511 U.S. at 842-43 (concluding that evidence of an official's "longstanding, pervasive, well-documented" history of attacks, along with "circumstances suggest[ing] that the defendant-official being sued had been exposed to [this] information" sufficient to allow a trier of fact to conclude that the defendant had actual knowledge of the risk). Although a plaintiff may base his or her deliberate indifference claim on a general risk of harm that a defendant poses to all individuals at a facility, Brooks fails to contend that the earlier assaults were similar enough to the assault in question such that "remedial actions would have prevented that attack." Parris v. New York State Dept. of Corr. Services, 947 F.Supp.2d 354, 363 (S.D.N.Y. 2013) (citation omitted). Thus, Brooks fails to establish a failure to protect based in Davis and Smith-Creaser's actual or constructive knowledge of defendants' history of assaulting residents at CNYPC.

Finally, Brooks argues that Davis and Smith-Creaser failed to protect him because they observed defendants Brennan and Smith assault him for a period of fifteen minutes, but did not intervene. In response, Davis contends that he was down the hall in the day room and did not observe the assault. Dkt. No. 39-3, at 2-3. Similarly, Smith-Creaser suggests that she did not fail to protect Brooks because she "would have no reason to believe that [Brooks] was in a position of substantial harm. To the contrary, she did have reason to believe that defendants Brennan and Smith were the ones in a position of substantial harm." Dkt. No. 41-8, at 8.

Construing the facts in the light most favorable to Brooks, if Davis and Smith-Creaser failed to intervene as they observed Brennan and Smith maliciously and sadistically assaulting Brooks, rather than exerting the minimal force necessary to gain control and order over him, Brooks will meet his burden of demonstrating that they were deliberately indifferent to a substantial risk of harm. George v. Corr. Officer Burton, No. Civ. 00-143 (NRB), 2001 WL 12010, at *3 (S.D.N.Y. Jan. 4, 2001) (citing Davidson v. Cannon, 474 U.S. 344, 348 (1986) (A failure to protect violation occurs "when prison guards simply stand by and permit an attack on an inmate by another inmate to proceed."). Due to the conflicting evidence offered by Brooks and defendants, summary judgment cannot be granted on this ground. See Nimley v. City of New York, 414 F.3d 381, 390 (2d Cir.2005).

Accordingly, it is recommended that defendants Davis and Smith-Creaser's motions for summary judgment on this ground be denied.

C. Qualified Immunity

Qualified immunity shields public officials from being sued for conduct undertaken in the course of their duties so long as that conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Eng v. Coughlin, 858 F.2d 889, 895 (2d Cir.1988).

It is clearly established that civilly-committed individuals have a constitutional right to be free from excessive force. See Youngberg, 457 U.S. at 315-16. Here, is unclear whether the force allegedly used by defendants Brennan and Smith continued beyond what was necessary under the circumstances and, thus, was a malicious and sadistic application of force intended solely for the purpose of harming Brooks. Similarly, because of this clearly established right to be free from malicious excessive force, it also cannot be said that it would be reasonable for defendants Davis and Smith-Creaser to allow use of force beyond what was needed to subdue Brooks. Granting summary judgment on the basis of a qualified immunity defense is not appropriate where there are facts in dispute that are material to a determination of a defendant's reasonableness. Thomas v. Roach, 165 F.3d 137, 143 (2d Cir.1999). Here, it would be premature for this court to hold that no reasonable fact finder could conclude that it was objectively unreasonable for defendants Brennan and Smith to believe that they were acting in a manner not in violation of a clearly established constitutional right. See Lee v. Sandberg, 136 F.3d 94, 102 (1997); see also Tafari v. McCarthy, 714 F.Supp.2d 317, 353-54 (N.D.N.Y. 2010).

Accordingly, it is recommended that (1) defendant Davis's motion for summary judgment on the basis of qualified immunity, and (2) defendants Smith, Smith-Creaser, and Brennan's motion for summary judgment on the basis of qualified immunity be denied.

IV. Conclusion

For the reasons stated above, it is hereby RECOMMENDED that

(1) Defendants' Brennan, Smith, and Smith-Creaser's motion for summary judgment (Dkt. No. 41) be DENIED and;
(2) defendant Davis's motion for summary judgment (Dkt. No. 39) be DENIED.

Pursuant to 28 U.S.C. § 636 (b) (1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court "within fourteen (14) days after being served with a copy of the... recommendation." N.Y.N.D.L.R. 72.1(c) (citing 28 U.S.C. § 636 (b) (1) (B)-(C)).

FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Small v. Sec'y of Heath and Human Servs., 892 F.2d 15 (2d Cir.1989); 28 U.S.C. § 636(b)(1); FED. R. Civ. P. 72, 6 (a), 6 (e).

Attorneys and Law Firms

Luis Caban, Alden, NY, pro se.

Hon. Eric T. Schneiderman, Attorney General for the State of New York, Douglas J. Goglia, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.

REPORT-RECOMMENDATION

GEORGE H. LOWE, United States Magistrate Judge.

*1 This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable David N. Hurd, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Luis Caban ("Plaintiff') alleges that Defendants violated his Eighth Amendment rights by subjecting him to excessive force. (Dkt. No. 6 ¶ 24.) Currently pending before the Court is Defendants' motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (Dkt. No. 25.)For the reasons that follow, I recommend that Defendants' motion be denied.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff alleges that on April 2, 2009, he and another inmate fought. (Dkt. No. 6 ¶ 11.) He claims "[t]he other inmate appeared [to] have numerous puncture wounds as a result of a pick type weapon, '" but staff recovered no weapon. Id. After the fight, Plaintiff was taken to the prison infirmary. There, Defendant Sgt. Kieth Hendry, Defendant Sgt. William Kline, and Defendant Correctional Officer James Patch surrounded him. Id. ¶ 12. They asked Plaintiff where the weapon was. Id. When he failed to respond, Defendant Hendry told him "[l]isten you fucking spic, you're going to tell me where that fucking shank is at" and then banged his head with a walkie-talkie. Id. ¶ 13. Plaintiff claims that he "threw his hands up for cover so to preven[t] any further blows to the head and was immediately jumped on by Defendants Kline and Patch." Id. He alleges that Defendant Patch beat his head and face with closed fists, put him in a choke hold, and slammed him on the floor as Defendant Hendry continued to beat him with closed fists. Id. ¶¶ 14-15.

Plaintiff claims that he struggled and attempted to get up as Defendants Kline, Hendry, and Patch beat him. Id. ¶ 16. The beating lasted about a minute, until Plaintiff "became placid from the hard blows." Id. Plaintiff alleges that Defendants Hendry, Kline, and Patch "continued slapping, punching and kicking" him after he was handcuffed. Id. Plaintiff was then yanked to his feet. Id. ¶ 17. He claims that Defendant Hendry punched him in the back of his head "causing his face to slam hard against a wall." and that "[b]oth [Defendant] Kline and [Defendant] Patch repeatedly slapped [Plaintiffs] face and head several more times." Id.

Plaintiff alleges that Defendant Sgt. D. Winchip later arrived. Id. ¶ 18. Plaintiff claims that Defendant Winchip "without premable, slapped [Plaintiff] in the face" and "yelled where's the weapon?'" Id. Plaintiff did not answer and Defendant Winchip punched him in the stomach and he fell to the floor. Id. Plaintiff alleges that he was threatened with criminal charges if he did not reveal the weapon's location and was escorted to the Special Housing Unit for refusing to talk. Id. ¶ 19.

*2 On May 13, 2009, Plaintiff was indicted for assaulting Defendant Hendry.[1] (Dkt. No. 25-3.)On December 7, 2009, he pleaded guilty to one count of attempted assault in the second degree in violation of New York Penal Law §§ 110 and 120.05(7). (Dkt. No. 25-4.) During the plea allocution, the judge asked Plaintiff whether he "with the intent to cause physical injury to another, attempt[ed] to cause such physical injury to Corrections Sergeant... Hendry?" Id. at 13:11-14. Plaintiff replied "Yes. I tried to defend myself." Id. at 13:15-16. The judge asked again: "[D]id you, with the intent to cause physical injury to another, attempt to cause such physical injury to Corrections Sergeant... Hendry?" Id. at 13:23-14:1. Plaintiff replied "yes." Id. at 14:2. Plaintiff was sentenced to a term of imprisonment of one and a half to three years as a result of his guilty plea. (Dkt. No. 25-5 at 6:18-24.)

Plaintiff filed this action after he was indicted but before he pleaded guilty to attempting to assault Defendant Hendry. (Dkt. No. 1.) The operative complaint is the amended complaint. (Dkt. No. 6.) Plaintiff requests $500, 000 in compensatory damages and $100, 000 in punitive damages. Id. at ¶¶ 25-26. Defendants now move for a judgment on the pleadings. (Dkt. No. 25.)Plaintiff has not opposed the motion.

II. LEGAL STANDARD GOVERNING MOTIONS FOR JUDGMENT ON THE PLEADINGS

"The standard for addressing a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b) (6) motion to dismiss for failure to state a claim." Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006). In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The requirement that a plaintiff "show" that he or she is entitled to relief means that 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. ___, ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) (emphasis added). "Determining whether a complaint states a plausible claim for relief... requires the... court to draw on its judicial experience and common sense... [W]here the wellpleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief." Id. at 1950 (internal citation and punctuation omitted).

"In reviewing a complaint for dismissal under Rule 12(b) (6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiffs favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.1994) (citation omitted). Courts are "obligated to construe a pro se complaint liberally." Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949.

III. ANALYSIS

*3 Defendants argue that the rule in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) bars Plaintiffs § 1983 excessive force claim for damages because Plaintiffs success in this action would imply the invalidity of his criminal conviction for attempting to assault Defendant Hendry. (Dkt. No. 25-1 at 4-7.)Defendants' argument is without merit because Plaintiffs success in this action would not necessarily demonstrate the invalidity of his conviction for attempted assault in the second degree.

In Heck, the Supreme Court held that:

in order to recover damages for [an] allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.

Heck, 512 U.S. at 486-87. Under Heck and its progeny, "a state prisoner's § 1983 action is barred (absent prior invalidation) - no matter the relief sought (damages or equitable relief)... - if success in that action would necessarily demonstrate the invalidity of confinement or its duration."Wilkinson v. Dotson, 544 U.S. 74, 81-82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) (emphasis omitted). If a plaintiff whose success would necessarily demonstrate the invalidity of the confinement or its duration does not satisfy Heck's favorable termination' rule, he must seek relief through the federal habeas corpus statute rather than through § 1983. Peralta v. Vasquez, 467 F.3d 98, 104 (2d Cir.2006)

Defendants argue that "if this matter somehow results in a judgment in favor of Plaintiff, it unquestionably would imply the invalidity of his conviction. Plaintiffs claim of excessive force therefore is not cognizable..." (Dkt. No. 25-1 at 6.) Defendants cite Douglas v. Smith, No. 05-CV-1000, 2009 U.S. Dist. LEXIS 130720, 2009 WL 789450 (N.D.N.Y. Jan. 26, 2009), [2] which they characterize as being "[a]lmost directly on point." (Dkt. No. 25-1 at 6.)

In Douglas, the plaintiff was involved in an altercation with several officers, including an officer named Rae. After the incident, Douglas was criminally charged with assaulting Officer Rae. He pleaded guilty to a reduced charge of attempted assault. The conviction was not overturned on appeal. Douglas filed a § 1983 action alleging that the officers violated his Eighth Amendment rights by subjecting him to excessive force. To prevail on the cause of action, Douglas needed to prove that the officers applied force "maliciously and sadistically to cause harm" rather than "in a good-faith effort to maintain or restore discipline." Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). Officer Rae, but not the other officers, moved for summary judgment. The court granted Officer Rae's motion, finding that:

*4 Douglas was convicted of attempted assault in the second degree, admitting that he intended to prevent Rae from performing his lawful duty by attempting to cause Rae physical injury. Douglas' contention here that Rae initiated the assault and that Douglas was merely attempting to protect himself directly contradict his conviction based on his allocution and plea and mandates the implication of the invalidity of that conviction and appeal... [I]f Douglas' current version of the relevant facts were accepted, Rae would not have been performing a lawful duty and Douglas' plea would become invalid.

Douglas, 2009 WL 789450, at *2.

Douglas is distinguishable from the case at bar. This is primarily because Douglas and Plaintiff pleaded guilty to different subsections of Penal Law § 120.05. Douglas pleaded guilty to subsection three, which states that a person is guilty of assault in the second degree if "[w]ith intent to prevent a peace officer... from performing a lawful duty... he causes physical injury to such peace officer." N.Y. Penal Law § 120.05(3) (McKinney 2004). Judge Homer reasoned that if Douglas succeeded in his Eighth Amendment excessive force claim against Officer Rae by proving that Officer Rae applied force maliciously and sadistically rather than in a good faith effort to maintain or restore discipline, it would necessarily demonstrate the invalidity of Douglas' conviction because it would show that Officer Rae had not been performing a lawful duty.

Here, Plaintiff pleaded guilty to the subsection of § 120.05 that states that a person is guilty of assault in the second degree if "while confined in a correctional facility... with intent to cause physical injury to another person, he causes such injury to such person or to a third person." N.Y. Penal Law § 120.05(7) (McKinney 2004). Thus, Plaintiff did not plead guilty to a charge that includes the assault victim's "performance of a lawful duty" as an element. Success in this action would not invalidate Plaintiffs conviction because both propositions could be true: Defendants may have acted maliciously and sadistically and Plaintiff may have intended to harm Defendant Hendry. Nothing in Plaintiffs complaint contradicts the facts that he admitted when he pleaded guilty to attempting to assault Defendant Hendry. Indeed, Plaintiff admits that he struggled' against Defendants. (Dkt. No. 6 ¶ 16.) The complaint also states that Plaintiff "became placid" after "approximately a minute, " which suggests that Plaintiff was not "placid" before that point. Id. Therefore, I find that Plaintiffs claim is not barred by Heck.

I note, also, that the Douglas court granted summary judgment in favor of only Defendant Rae. The other officers who Douglas alleged used excessive force did not move for summary judgment on the basis of Heck. Here, all of the defendants have moved for judgment on the pleadings, not just Defendant Hendry. Defendants have not cited any case holding that a prisoner's conviction for assaulting one officer bars his excessive force claims against other officers. Therefore, I recommend that the Court deny Defendants' motion for judgment on the pleadings.

*5 ACCORDINGLY, it is

RECOMMENDED that Defendants' motion for judgment on the pleadings (Dkt. No. 25) be DENIED.

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir.1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir.1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a).

ELLIS, Magistrate J.

I. INTRODUCTION

*1 Pro se incarcerated plaintiff Chrisner Desulma ("Desulma") sued the City of New York and two Department of Corrections officers alleging violation of his Eighth and Fourteenth Amendment rights while he was an inmate on Rikers Island. Compl.[1] His claims were thereafter dismissed except as against defendant Goolsby, who has brought the instant motion for summary judgment. For the reasons which follow, I respectfully recommend Goolsby's motion be GRANTED.

II. BACKGROUND

A. Factual Background

The following account is based on Desulma's complaint and deposition testimony. The events which give rise to this cause of action occurred on December 27, 1996, when Desulma was incarcerated in the Adolescent Detention and Reception Center ("ADRC") at Rikers Island Compl. ¶ 8. At midday, Desulma and approximately fifty other inmates from his housing unit were escorted in a line to the mess hall by officers Goolsby and an unidentified officer, "Jane Doe." Id. ¶ 9; Tr. at 83. Two inmates standing near Desulma in the line began "menacing" him by making unspecified threats and racial insinuations. Tr. at 58-59, 75-77. Desulma testified that officer Goolsby witnessed these threats. Tr. at 63, 79-80. Desulma requested protection, but Goolsby told him to defend himself. Tr. at 81.

During the meal, Desulma sat away from the inmates who bothered him. Tr. at 85. After the meal, as the group was preparing to leave the mess hall, Desulma attempted to ask Goolsby for protective measures against these inmates, whom he feared. Tr. at 134, 138. Although he did not find Goolsby, Desulma succeeded in speaking to Doe. Id. at 133-35. Desulma claims that Doe ignored his request for protective measures and instructed him to get into the line. Tr. at 134-135.

The inmates who had earlier threatened Desulma were again standing near him in line. Id. at 138. They began to "bother" Desulma, telling him that he "smell led]." Tr. at 141. Desulma later submitted changes to his deposition in which he claims the inmates said, "kill this negro, get you, we are going to get you stinky."Tr. Ch. 6.[2] Following their verbal abuse, the inmates attacked Desulma using their fists and a sharp weapon. Tr. at 141-43. They beat Desulma all over his body and slashed his face with the weapon, leaving a permanent scar. Id. at 143.

Desulma called for help during the attack, but the escorting officers did not intervene. Id. at 145. As Desulma attempted to run away from his attackers, he fell onto the floor near Doe's feet. Id. Desulma alleges that no correctional officer sought medical assistance until he "fell to the floor in a pool of blood, " Compl. ¶ 18, at which point Doe called for emergency assistance over her radio transmitter. Id. at ¶ 21. Desulma originally testified that Goolsby was not on the scene until Doe called for help, Tr. at 134, 138, 149, but later asserted that he had seen Goolsby "a few seconds" before and after the incident. Tr. Ch. at 6.

*2 Approximately twenty-five officers responded to Doe's call. Tr. at 147-49. The officers transported Desulma to the facility's medical clinic, Tr. at 150, where he received treatment requiring a total of twelve stitches. Com pl. ¶ 19-20. Desulma was subsequently transferred to live in a separate housing unit. Glass. Decl. ¶ 22.[3]

B. Procedural Background

Desulma filed the instant complaint on January 5, 1998, against the City of New York and correctional officers Goolsby and Jane Doe, in their individual and official capacities, for failure to protect Desulma from other inmates during an incident at Riker's Island. He alleges violation of his Eighth and Fourteenth Amendment rights, see Compl. ¶ 32, and various tort violations under New York state law. Id. ¶ 34. Specifically, he alleges that Goolsby, "with deliberate indifference, " failed to separate him from a group of inmates who had threatened him and "deliberately refused" to grant his request for protection. Id. ¶ 29-30.

At a status conference before Judge Shira A. Sheindlin on November 5, 1998, the complaint was dismissed with respect to all defendants except officer Goolsby. The ruling was confirmed in a written order issued by Judge Richard M. Berman on December 21, 1998. On December 3, 1998, Goolsby served an answer to the complaint, and discovery progressed as ordered. Desulma was deposed on April 23, 1999 and May 17, 1999.

In January 1999, Desulma requested that discovery materials be translated into Creole and that counsel be appointed to assist him. The Court denied those requests by order dated March 16, 1999. On October 13, 1999, after the close of discovery, Goolsby filed the present motion. Desulma requested and received an extension of time, until January 14, 2000, in which to respond to Goolsby's motion. On December 24, 1999, Desulma requested an audiotape recording of his deposition. See Glass Decl., Exh. C. In an Order dated February 25, 2000, the Court denied the request, as no tapes existed, but granted Desulma permission to submit corrections to his deposition transcripts by April 21, 2000. Id., Exh. D.

On April 20, 2000, Desulma filed, and served Goolsby with, fourteen pages of changes to the deposition. Id., Exh. A. Goolsby objected and, on June 1, 2000, moved to have the changes declared null and void for failure to comply with Rule 30(e) of the Federal Rules of Civil Procedure. Goolsby argued that the changes were "a deliberate attempt by plaintiff to tailor his testimony to defeat defendant's previously served summary judgment motion."See Glass Decl.

On June 19, 2000, the Court ordered Desulma to have his changes signed and sworn, to fully explain each change, and to respond to Goolsby's motion by July 19, 2000. Desulma responded on July 11, 2000, by submitting to the Court the same fourteen pages of deposition transcript changes he had originally filed, along with a sworn affidavit and a declaration of service. He did not, however, submit explanations for his changes or respond to Goolsby's motion. Instead, Desulma requested, and was granted, extensions of time in which to comply with the court's Order of June 19, 2000, and in which to respond to Goolsby's motion for summary judgment. Desulma filed his response on November 16, 2000. The case was referred to the undersigned on December 28, 2000, and the motion was fully submitted when Goolsby filed reply papers on January 5, 2001.

C. The Instant Motion

*3 Goolsby argues that Desulma did not establish the elements of an Eighth Amendment "failure to protect" claim under § 1983 for three reasons: (1) he failed to show he was incarcerated under conditions posing a substantial risk of serious harm; (2) he failed to show Goolsby acted with a sufficiently culpable state of mind; and (3) Goolsby is immune from liability under the doctrine of qualified immunity. See Def. Mem.[4]

Relying primarily on the deposition transcript changes he filed, Desulma contends that officer Goolsby acted with deliberate indifference to his safety and well-being by disregarding his requests for protective measures and by failing to intervene in the attack. Pl. Resp. at 11, 19, 22, 25.[5] Desulma also contends that Goolsby is not immune under the doctrine of qualified immunity. Id. at 17-18. Goolsby argues that Desulma should not be permitted to rely on the deposition transcript changes, and that, even if the changes were accepted into the record, Desulma cannot establish that Goolsby was deliberately indifferent to a substantial risk of serious harm to plaintiff. See Def. Rep.[6]

III. DISCUSSION

A. Standards for Motion for Summary Judgment

A court shall grant a motion for summary judgment if it determines that "there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law."Fed.R.Civ.P. 56(c). Under this standard, summary judgment is proper if "viewing the record in the light most favorable to the nonmoving party, the evidence offered demonstrates that there is no genuine issue of fact and that the moving party is entitled to judgment as a matter of law. " Pension Benefit Guar. Corp. v. LTV Corp., 875 F.2d 1008, 1015 (2d Cir.1989) (internal quotations omitted), rev'd on other grounds, 496 U.S. 633 (1990). In making this determination, the court does not resolve disputed factual issues, but reaches a conclusion as to whether there exists "a genuine and material issue for trial. " Hudson Hotels Corp. v. Choice Hotels Int'l, 995 F.2d 1173, 1175 (2d Cir.1993). An issue of fact is "genuine" if it provides a basis for "a rational trier of fact to find for the non-moving party. " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If the record contains evidence which supports a reasonable inference in favor of the nonmoving party on the issues presented in the motion, summary judgment is not appropriate. SeeKnowles v. New York City Dept. of Corrections, 904 F.Supp. 217, 220 (S.D.N.Y.1995).

The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact. SeeConsarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568 (2d Cir.1993) ( citingAdickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). This burden may be met by demonstrating that there is a lack of evidence to support the nonmoving party's claim. SeeCelotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving party must then set forth "specific facts showing that there is a genuine issue for a trial."Fed.R.Civ.P. 56(e); Celotex Corp., 477 U.S. at 321-22. A nonmoving party may not rely on conclusory allegations or conjecture to create disputed fact issues. Lipton v. Nature Co., 71 F.3d 464, 469 (2d cir.1995); Thomas v. Keane, 2001 WL 410095 (April 23, 2001). Even in cases involving pro se plaintiffs, where the court has an obligation to construe the plaintiffs papers liberally, Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir.1988), these same standards for dismissal apply. Thomas, 2001 WL 410095, at *3 ( citingLee v. Artuz, 2000 WL 231083, at *2 (S.D.N.Y. Feb. 29, 2000)).

B. Deposition Transcript Changes

*4 Rule 30(e) of the Rules of Federal Procedure permits a witness to review the transcript of her deposition and make changes "in form or in substance" within thirty days of notification by the court reporter that the transcript is ready for review, and requires that the deponent sign a statement setting forth the reasons for each change. Rule 30(e), Fed.R.Civ.P. Courts have construed the Rule broadly, even accepting changes which contradict original testimony. Hlinko v. Virgin Atlantic Airways, 1997 WL 68563 (S.D.N.Y. Feb. 19, 1997) ( citing, inter alia, Podell v. Citicorp Diners Club, Inc., 914 F.Supp. 1025, 1034 (S.D.N.Y.1996). Original answers remain admissible at trial as admissions of a party. Podell., 914 F.Supp. at 1034.

Desulma's submission of transcript changes include the following material changes to his initial testimony: (1) the two inmates who attacked him had harassed him the day before the incident, Tr. Ch. at 2; (2) he alerted Goolsby about the harassment the day before the incident, id.; (3) Goolsby was actually on the scene during the incident, Tr. Ch. at 6; (4) the two inmates threatened him with a knife when they verbally harassed him prior to the incident, Tr. Ch. at 4; (5) and the attackers said "kill this negro, get you, we are going to get you stinky, " before attacking him. Tr. Ch. at 6.

Goolsby argues that the Desulma's changes should be rejected because they were tailored to oppose Goolsby's motion for summary judgment and do not comply with Rule 30(e). See Def. Rep. Desulma never submitted explanations as ordered by this Court on July 19, 2000, but maintains that the transcript changes were warranted because his interpreter had not translated his answers accurately. Pl. Resp. at 13. Although Rule 30(e)"does not require a judge to examine the sufficiency, reasonableness, or legitimacy of the reasons for the changes, " Podell v. Citicorp Diners Club, Inc., 914 F.Supp. at 1035, a court is free to reject changes in extreme situations. See, e.g., Baker v. Ace Advertiser's Service, 134 F.R.D. 65 (S.D.N.Y.1991) (changes rejected where they were so far-reaching as to render the transcript a nullity). A court may reopen deposition if the changes to the transcript are made without adequate reasons, or if they are so substantial as to render the transcript incomplete or useless. SeeHlinko v. Virgin Atlantic Airways, 1997 WL 68563, *1 ( citingAllen & Co. v. Occidental Petroleum Corp., 49 F.R.D. 337, 341 (S.D.N.Y.1970).

Here, although Desulma's changes are not so substantial as to render the transcript incomplete or useless, Desulma never submitted explanations for his changes as required by Rule 30(e) and as ordered by this Court on July 19, 2000. The explanation Desulma offers in his opposition papers to the instant motion (that his changes were made to correct the mistranslation of his Creole interpreter, see Pl. Resp. at 13) does not constitute "a statement reciting such changes and the reasons given by the deponent for making them."Fed.R.Civ.P. Rule 30(e). Furthermore, Desulma's explanation does not satisfy this Court's July 19, 2000 order instructing plaintiff to "fully explain each and every change made to the transcript."Desulma's changes are therefore unacceptable.

*5 Moreover, to allow Desulma's changes under these circumstances would permit him to tailor his testimony to meet specific deficiencies in his evidence. As a general proposition, a party may not rely on an affidavit that contradicts his deposition testimony in order to defeat a pending motion for summary judgment. See, e.g., Hale v. Mann, 219 F.3d 61, 74 (2d Cir.2000) ("[I]t is well settled in this circuit that a party's affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment.") ( quotingMack v. United States, 814 F.2d 120, 124 (2d Cir.1987)). Similarly, Desulma's contradictory deposition changes, submitted to the Court six months after Goolsby filed her motion for summary judgment, should not provide a basis for avoiding summary judgment. The Court finds that, even if Desulma's changes did conform to the requirements of Rule 30(e), Desulma would not be permitted to rely upon them in opposing the instant motion.

C. 42 U.S.C. § 1983

In order to maintain a claim under Section 1983, a plaintiff must allege that (1) the challenged conduct was attributable at least in part to a person who was acting under color of state law, and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States. Mendez v. Walker, 110 F.Supp.2d 209, 213 ( citingDwares v. City of New York, 985 F.2d 94, 98 (2d Cir.1993)). Desulma has properly alleged that Goolsby, as a correctional officer, was acting under color of state law and that her conduct resulted in a violation of his Eighth Amendment rights.

As a prerequisite to bringing suit, a plaintiff must also show a defendant's direct or personal involvement in the alleged Constitutional deprivation. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994). Personal involvement may take one of four forms: (1) direct participation in the infractions; (2) failure of a supervisory official to remedy wrong after learning of violation; (3) creation or sanction by a supervisory official of policy or custom under which unconstitutional practices occur; or, (4) gross negligence in managing subordinates. Williams v. Smith, 781 F.2d 319, 323 (2d Cir.1986).

Goolsby maintains that she is not liable because she was not present at the time of the slashing. Def. Mem. at 16-17. In fact, the record does not establish Goolsby's location during the slashing. Desulma testified that he was unable to locate Goolsby as the inmates were leaving the mess hall, Tr. 134, and did not see her again until after the incident when Doe called for assistance. Tr. 138, 149. In his reply papers, Desulma claims he "was assaulted in [the] presence of the same two corrections officers, Goolsby and Doe. "Pl. Rep. at 22. And in his changes to the transcript, Desulma claims that he saw Gooslby "before and after" the slashing. Tr. Ch. at 6. Whether Desulma saw Goolsby is not dispositive. Goolsby may have been present even if Desulma did not see her. Defendant has not offered any evidence to suggest that she was not there. Moreover, Desulma need not prove Goolsby's presence at the scene to prevail on his claim that she was deliberately indifferent to a substantial risk of serious harm to him. Construing all pleadings and evidence in Desulma's favor, Goolsby's knowledge of the events leading up to the attack would be enough to establish personal involvement for the purposes of 42 U.S.C. § 1983.

C. Eighth Amendment

*6 The Eighth Amendment, applicable to the states through the Fourteenth Amendment, prohibits the infliction of cruel and unusual punishment. Failure-to-protect claims, because they are treated as challenges to conditions of confinement, are analyzed under the Eighth Amendment. See, e.g., Farmer v. Brennan, 511 U.S. 826 (1994); Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir.1997) (stating that Eighth Amendment imposes on prison officials "a duty to protect prisoners from violence at the hands of other prisoners"); Edney v. Karringan, 69 F.Supp.2d 540, 544 n. 1 (S.D.N.Y.1999).

To prevail in a failure-to-protect case, a prisoner must establish that (1) he is incarcerated under conditions posing a "substantial risk of serious harm, " Farmer, 511 U.S. at 834 ( citingHelling v. McKinney, 509 U.S. 25 (1993)), and that (2) the prison official acted with "deliberate indifference" to the prisoner's health or safety. Farmer, 511 U.S. at 828 ( citingHelling, 509 U.S. 25; Wilson v. Seiter, 501 U.S. 294 (1991); Estelle v. Gamble, 429 U.S. 97 (1976)).

While the first part of the test is an objective determination about the severity of the conditions under which plaintiff is incarcerated, seeFarmer, 511 U.S. at 834, the second part of the test invokes a subjective standard akin to criminal recklessness such that the defendant must "consciously disregard" a substantial risk of serious harm. Id. at 839-40. The official "has sufficient culpable intent if he has knowledge that an inmate faces a substantial risk of serious harm and he disregards that risk by failing to take reasonable measures to abate the harm." Hayes, 84 F.3d at 620. The official must be aware of the risk or aware of facts from which the inference of risk could be drawn, and she must also draw the inference. Farmer, 511 U.S. at 837; Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir.1998) ( quotingHathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996)).

1. Objective Test: Conditions of Plaintiff's Incarceration

Desulma does not succeed in showing that he was incarcerated under conditions posing a substantial risk of serious harm, a standard which "contemplates a condition of urgency, one that may produce death, degeneration, or extreme pain, "Hathaway, 37 F.3d at 66 ( quotingNance v. Kelly, 912 F.2d 605, 607 (2d Cir.1990) (Pratt, J., dissenting)), for two reasons. First, Desulma does not show that the risk he faced was substantial. Second, he fails to show that the risk - to the extent that one existed - was one of serious harm.

Desulma had no prior altercations with the inmates who attacked him. He testified that he had never complained about them or requested separation from them before, id. at 160; that he did not know his attackers at the time of the incident, Tr. 52; and that he only became "enemies" with them en route to the mess hall. Tr. at 60. Desulma later asserts, by changing "no" answers to "yes" answers in the deposition transcript, that he did have an altercation with the same inmates previously, Tr. Ch. 2-3, 8, and adds that he had previously asked Goolsby for protection from the inmates. Id. at 8-9. Desulma does not describe the prior altercation.

*7 Nothing on the record or in the revisions shows that the inmates posed a substantial threat. By Desulma's account, the inmates told him he was "going to pay a price" and told him to get away from them because "he smell[ed]." Tr. at 59-60. These verbal statements alone do not indicate a substantial threat of serious harm. Indeed, Desulma even surmised that "the officers thought that was just words; they didn't believe anything could happen."Tr. at 63, 80. Finally, although Desulma changed his testimony to reflect that the inmates had actually threatened him with a knife, Tr. Ch. at 4, that fact alone would not be enough to establish a substantial risk.

2. Subjective Test: Defendant's Mental State

Desulma is also unable to show that Goolsby acted with the state of mind necessary to establish an Eighth Amendment violation. Desulma may properly rely on circumstantial evidence to prove Goolsby acted with the requisite mental state, because "[d]irect evidence that prison officials knew of and disregarded a serious risk of harm to a prison inmate will rarely be available, " Matthews v. Armitage, 36 F.Supp. 121, 125 (N.D.N.Y.1999) ( citingCoppage v. Mann, 906 F.Supp. 1025, 1036 (E.D.Va.1995)). The evidence he submits, however, fails to support the conclusion he argues before this Court. The record supports the conclusion that Goolsby was aware that Desulma feared his attackers because Desulma requested protective measures en route to the mess hall, [7] and because Goolsby witnessed the verbal altercation. However, given the lack of a prior history of violence between Desulma and those inmates, and the nature of the inmates' verbal threats against Desulma, Goolsby had no reason to infer the existence of a threat of harm, much less a life-threatening danger, as Desulma claims. Pl. Rep. at 21.

Goolsby's failure to intervene in the attack is not, by itself, a basis for liability. Although "[a] correctional officer's presence at an attack of an inmate, where he does nothing to stop an assault, may be sufficient to establish a claim under Section 1983, "Dresdner v. Brockton ( citingMorales v. New York State Department of Corrections, 842 F.2d 27 (2d Cir.1988)), an isolated omission to act by a state prison guard must be accompanied by evil intent, recklessness, or at least deliberate indifference to the consequences of the conduct. Bass v. Jackson, 790 F.2d 260, 262-63 (2d Cir.1986) ( quotingAyers v. Coughlin, 780 F.2d 205, 209 (2d Cir.1985); Williams v. Vincent, 508 F.2d 541, 546 (2d Cir.1974)). The defendant must also be shown to have had "an extended opportunity to stop the attack but failed to take any action to do so. "Rucco v. Howard, 1993 WL 299296 (S.D.N.Y. Aug. 4, 1993) ( citing Williams, 508 F.2d at 546).

Here, there is no evidence that Goolsby deliberately disregarded Desulma's safety or had an opportunity to intervene in the attack. The fact that Doe called for help and Goolsby appeared shortly thereafter suggests that both officers responded immediately to the attack. At most, Goolsby's failure to heed Desulma's initial request for protection was negligent, and negligence is not a sufficiently culpable mental state for liability to attach in a failure-to-protect cases. SeeDavidson v. Cannon, 474 U.S. 344 (1986); Hayes v. New York City Dep't of Corrections, 84 F.3d 614, 620 (2d Cir.1996).

C. Qualified Immunity

*8 Under 42 U.S.C. § 1983, a public official is entitled to qualified immunity if her acts did not violate clearly established rights of which a reasonable officer would have known, or if she reasonably believed that her conduct did not violate those rights. SeeHarlow v. Fitzgerald, 457, U.S. 800, 818 (1982); Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir.1998); Brown v City of Oneonta, N.Y., Police Dept., 106 F.3d 1125, 1130-31 (2d Cir.1997). The test is whether, in light of the clearly established federal right, it was objectively reasonable for the official to believe that his or her actions were constitutional. Warren v. Dwyer, 906 F.2d 70, 74 (2d Cir.), cert. denied, 498 U.S. 967 (1990).

An official is entitled to qualified immunity "if reasonable officials could disagree regarding whether the actions at issue violated the Constitution."Def. Mem. at 14. However, summary judgment will be granted on the basis of qualified immunity only if "no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiff, could conclude that it was objectively reasonable for the defendant to believe that he was acting in a fashion that did not clearly violate an established federally protected right. " Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.1995) ( quotingRobison v. Via, 821 F.2d 913, 921 (2d Cir.1987)). See also Williams v. Greifinger, 97 F.3d 699, 706 (2d Cir.1996); Noguera v. Hasty, 2000 WL 1011563, * 18 (S.D.N.Y. July 21, 2000). Thus, "[i]f any reasonable trier of fact could find that the defendants' actions were objectively unreasonable, then the defendants are not entitled to summary judgment." Lennon, 66 F.3d at 420.

Goolsby argues that she and Doe acted in an objectively reasonable manner. Def. Mem. at 15. Based on the verbal harassment which preceded the attack, Goolsby argues, "reasonable correction officers at least could differ as to whether these comments alone were concrete enough to create a substantial risk of harm to plaintiff of imminent physical attack." Id. On summary judgment it is necessary to show that no reasonable trier of fact could find that the defendants' actions were objectively unreasonable. In this case, where the only notice of potential harm to Desulma was a request for protection and an incident of verbal harassment, Goolsby was, at most, merely negligent in failing to protect Desulma from the inmates who attacked him. She responded quickly to the attack, separating the inmates and transporting Desulma to the medical unit. On these facts, no reasonable jury could conclude that it was anything but objectively reasonable for Goolsby to believe her acts did not clearly violate an established federally protected right. She is therefore entitled to qualified immunity.

IV. CONCLUSION

Because no genuine issue of material fact exists with respect to Desulma's claims, I respectfully recommend that defendant's motion for summary judgment be GRANTED.

*9 Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Richard M. Berman, 40 Centre Street, Room 201, and to the chambers of the undersigned, 500 Pearl Street, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. SeeThomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir.1989) ( per curiam ); 28 U.S.C. § 636(b)(1) (West Supp.1995); Fed.R.Civ.P. 72, 6(a), 6(e).

Parallel Citations

50 Fed.R.Serv.3d 865

Attorneys and Law Firms

Ellis Douglas, Pine City, NY, pro se.

Law Offices Of Gregory J. Teresi, Gregory J. Teresi, Esq., of Counsel, Albany, NY, for Plaintiff.

Hon. Andrew M. Cuomo, Attorney General for the State of New York, Michael G. McCartin, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.

REPORT-RECOMMENDATION AND ORDER[1]

DAVID R. HOMER, United States Magistrate Judge.

*1 Plaintiff Ellis Douglas ("Douglas"), an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants, eight DOCS employees, [2] violated his constitutional rights under the First, Fourth, Eighth, and Fourteenth Amendments. Compl. (Docket No. 1). In an order signed February 14, 2008, defendants' motion for summary judgement was granted with respect to all claims except Douglas' Eighth Amendment excessive force claim against the eight remaining defendants. Docket No. 54.Presently pending is defendants' motion for summary judgment as to one defendant, J. Rae, pursuant to Fed.R.Civ.P. 56. Docket No. 68.Douglas has not opposed the motion. For the following reasons, it is recommended that defendants' motion be granted.

I. Background

A. Failure to Respond

Douglas did not oppose defendants' motion.[3] Under the rules of this district, "[t]he Court shall deem admitted any facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert."N.D.N.Y.L.R. 7.1(A) (3) (emphasis omitted). Because Douglas has not responded to raise any question of material fact, the facts as set forth in defendants' Statement of Material Facts are accepted as true. SeeDocket No. 68-9) [hereinafter "Defs. Statement"]; see also Adirondack Cycle & Marine, Inc. v. American Honda Motor Co., No. 00-CV-1619, 2002 WL 449757, at *1 (N.D.N.Y. Mar. 18, 2002) (McAvoy, J.) (citing Lopez v. Reynolds, 998 F.Supp. 252, 256 (W.D.N.Y.1997)).

B. Statement of Facts

The facts and procedural history of this case are set forth in the Report-Recommendation and Order filed January 22, 2008, familiarity with which is assumed. SeeDocket No. 53.

As relevant here, Douglas has asserted two excessive force claims. Defendant Rae was allegedly involved only in one of those claims. Defs. Statement ¶¶ 1-3. On June 30, 2004, on the way back to his cell, Douglas and defendants Rae, Ketzer, and Cross became involved in an altercation. Id. ¶ 3; Compl. ¶ 14, 17-18. Douglas claims that Rae "punched [him] in the face [and] as [he] turned to protect himself from the assault, Sgt. Rae threw a barrage of punches striking Douglas in the face area."Compl. ¶ 17.

As a result of the June 30 altercation, Douglas was charged criminally with assaulting a corrections officer, "pleaded guilty to the reduced charge of attempted assault..., and was sentenced as a second felony offender in accordance with the plea agreement to a prison term of 2 to 4 years, to be served consecutively to a sentence he was then serving. " People v. Douglas, 831 N.Y.S.2d 585, 586 (3d Dep't 2007); see alsoDocket No. 68-4, 5, 6. Douglas attempted to appeal the guilty plea, but the appeal was ultimately denied because the court "f[ound] that [Douglas] entered a knowing, voluntary and intelligent plea of guilty... [and] his allocution sufficiently establishe[d] the essential elements of the crime." Id. at 586-87.This action followed.

II. Discussion

*2 The remaining causes of action in Douglas' complaint allege two instances of excessive force in violation of the Eighth Amendment. Defendants move for summary judgment as to Rae contending that (1) Douglas' claim is barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); (2) Douglas' claim is barred by collateral estoppel; and (3) Douglas' excessive force claim is meritless.

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; 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. Favorable Termination Rule

The favorable termination rule of Heck provides that if a determination favorable to the plaintiff in a § 1983 action "would necessarily imply the invalidity of his conviction or sentence, " a plaintiff must prove that the conviction or sentence has been reversed on direct appeal or declared invalid in order to recover damages under § 1983. Edwards. v. Balisok, 520 U.S. 641 (1997). While the application of the favorable termination rule has been precluded in claims where the alleged "use of excessive force lacks the requisite relationship to the conviction, " this case is patently different. Jackson v. Suffolk County Homicide Bureau, 135 F.3d 254, 257 (2d Cir.1998).

In this case, Douglas was convicted of attempted assault in the second degree, admitting that he intended to prevent Rae from performing his lawful duty by attempting to cause Rae physical injury. See Douglas, 831 N.Y.S.2d at 586-87; Docket No. 68-6 at 10.Douglas' contentions here that Rae initiated the assault and that Douglas was merely attempting to protect himself directly contradict his conviction based on his allocution and plea and mandates the implication of the invalidity of that conviction and appeal. See Dye v. Virts, No. 03-CV-6273, 2004 WL 2202638, at *4 (W.D.N.Y. Sept. 28, 2004) (barring a prisoner's federal claims regarding a correction officer's alleged assault pursuant to Heck because (1) the plaintiff had previously "ple[d] guilty to assault in the second degree... for causing physical injury to [the corrections officer] in order to prevent him from performing a lawful duty, " (2) the conviction had been affirmed on appeal, and (3) if the prisoner was merely defending himself, the corrections officer would not have been performing a lawful duty.). As in Dye, if Douglas' current version of the relevant facts were accepted, Rae would not have been performing a lawful duty and Douglas' plea would become invalid. Additionally, there is no evidence that Douglas' criminal conviction was ever otherwise vacated. Therefore, because his recovery of damages for excessive force would necessarily imply the invalidity of his criminal conviction, his claim here cannot stand.

*3 Accordingly, defendants' motion as to Douglas' claim against Rae should be granted.

C. Collateral Estoppel

Under the Full Faith and Credit Clause of the Constitution, federal courts must grant state court judgments the same preclusive effects as those given to other courts located within the state. Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994) (citing Migra v. Warren City Sch. Dist., 465 U.S. 75, 81 (1984))."[I]n New York, a guilty plea precludes relitigation in a subsequent civil action of all issues necessarily determined by the conviction [and t]hus, for collateral estoppel purposes, a guilty plea is equivalent to a conviction after trial. " Marinaccio v. Boardman, No. 02-C831 (NPM), 2005 WL 928631, at *11 (N.D.N.Y. Apr. 19, 2005) (internal quotations and citations omitted). Collateral estoppel is applicable:

[I]f (1) there has been a final determination on the merits of the issue sought to be precluded; (2) the party against whom... preclusion is sought has a full and fair opportunity to contest the decision...; and (3) the issue sought to be precluded by the earlier suit is the same issue involved in the later action.

Davis v. Halpern, 813 F.2d 37, 39 (2d Cir.1987) (citation omitted). The requirement of a full and fair opportunity to contest requires that the plaintiff "was fully able to raise the same factual or legal issues" in the prior litigation as asserted in the present case. LaFleur v. Whitman, 300 F.3d 256, 274 (2d Cir.2002).

In this case, the state court has established that Douglas voluntarily and intelligently pled guilty to the charge of attempted assault in the second degree stemming from the same events which gave rise to this action. See Douglas, 831 N.Y.S.2d at 586-87; Docket No. 68-6 at 10.Specifically, Douglas pled guilty to intentionally interfering with Rae's ability to perform his lawful duties and attempting to assault him, as opposed to Douglas' current contentions that Douglas did not instigate the altercation and was only acting in self-defense. Thus, the guilty plea constituted a final determination on the merits of the case.

This leaves the question of whether a defendant who pleads guilty to a crime, in lieu of trial, has had a full and fair opportunity to litigate... [to which n]umerous courts have answered in the affirmative, holding that a defendant is not denied the chance to contest issues in a criminal proceeding merely because he pleds guilty, so long as the plea was voluntary and intelligent.

Downing v. King, No. 06-CV-363 (GLS/RFT), 2007 WL 4191765, at *2 (N.D.N.Y. Nov. 26, 2007) (internal citations and quotations omitted). Therefore, Douglas has also had a full and fair opportunity to contest the decision, despite the lack of a trial in light of his voluntary and intelligent guilty plea.

Accordingly, in the alternative defendants' motion for summary judgment should be granted on this ground.

III. Conclusion

*4 For the reasons stated above, it is hereby RECOMMENDED that defendants' motion for summary judgment as to defendant Rae (Docket No. 68) be GRANTED in all respects and that judgment be entered in favor of Rae on all remaining claims against him.

Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Small v. Sec y of HHS, 892 F.2d 15 (2d Cir.1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

MEMORANDUM-DECISION and ORDER

HON. GLENN T. SUDDABY, District Judge.

On August 8, 2005, Ellis Douglas ("Plaintiff') filed this pro se prisoner civil rights action pursuant to 42 U.S.C. § 1983, against nine employees of the New York State Department of Correctional Services ("Defendants"), alleging that they violated his constitutional rights under the First, Fourth, Eighth and Fourteenth Amendments. (Dkt. No. 1.) On February 14, 2008, Senior U.S. District Judge Lawrence E. Kahn granted in part, and denied in part, Defendants' first motion for summary judgment. In so doing, he dismissed certain of Plaintiffs claims, including all claims against three of the nine Defendants - namely, Correctional Officer R. Davies, Superintendent Joseph T. Smith and Nurse Skies. (Dkt. No. 54, at 2, adopting Dkt. No. 53, at 21-23, 29-31.)[1] Remaining in the action after Judge Kahn's Decision and Order were only Plaintiffs Eighth Amendment excessive force claim against six Defendants, including J. Rae.

Currently before the Court are (1) Defendant Rae's second motion for summary judgment (Dkt No. 68), and (2) United States Magistrate Judge David R. Homer's Report-Recommendation that Defendant Rae's motion be granted (Dkt. No. 81). Plaintiff has filed, through counsel, timely Objections to the Report-Recommendation. (Dkt.Nos.82-85.) For the reasons set forth below, the Report-Recommendation is adopted and accepted in its entirety, Defendant Rae's second motion for summary judgment is granted, and Plaintiffs claims against Defendant Rae are dismissed.

I. STANDARD OF REVIEW

When specific objections are made to a magistrate judge's report-recommendation, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C).[2] When only general objections are made a magistrate judge's report-recommendation, the Court reviews the report-recommendation for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir.1999).[3] Similarly, when a party makes no objection to a portion of a report-recommendation, the Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-C2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.); Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Edition. After conducing the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).

II. LEGAL STANDARD ON MOTION FOR

SUMMARY JUDGMENT

*5 Under Fed.R.Civ.P. 56, summary judgment is warranted if "the pleadings, the discovery and disclosure materials on file, and any affidavits 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). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In addition, "[the moving party] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the... [record] which it believes demonstrate[s] the absence of any genuine issue of material fact. " Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). This burden has appropriately been characterized as "modest."[4] When the moving party has met this initial responsibility, the nonmoving party must come forward with "specific facts showing a genuine issue [of material fact] for trial."Fed.R.Civ.P. 56(e)(2).

A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party. " Anderson, 477 U.S. at 248. As a result, "[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]; see alsoFed.R.Civ.P. 56(e)(2). As the Supreme Court has famously explained, "[The nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts" [citations omitted] Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).

As for the materiality requirement, a dispute of fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. "Factual disputes that are irrelevant or unnecessary will not be counted." Id. [citation omitted].

Implied in the above-stated burden-shifting standard is the fact that, where a nonmoving party fails to adequately respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute-even if that nonmoving party is proceedingpro se. [5] (This is because the Court extends special solicitude to the pro se litigant largely by ensuring that he or she has received notice of the consequences of failing to properly respond to the motion for summary judgment.)[6] As has often been recognized by both the Supreme Court and Second Circuit, even pro se litigants must obey a district court's procedural rules.[7] For this reason, this Court has often enforced Local Rule 7.1(a)(3) by deeming facts set forth in a moving party's statement to have been admitted where the nonmoving party has failed to properly respond to that statement[8] - even where the nonmoving party was proceeding pro se in a civil rights case.[9]

III. RELEVANT BACKGROUND

*6 On July 3, 2008, Defendant Rae filed his second motion for summary judgment. (Dkt. No. 68.)In his motion papers, Defendant Rae gave Plaintiff sufficient notice of the consequences of failing to properly oppose his motion. (Dkt. No. 68, Part 1.) Moreover, in Defendant Rae's first motion for summary judgment, he gave Plaintiff a similar notice, and attached the Northern District's form "Notification of the Consequences of Failing to Respond to a Summary Judgment Motion."(Dkt. No. 41, Part 1.) Plaintiffs response to Defendant Rae's second motion for summary judgment was due on July 29, 2008. ( See Docket Entry for 7/3/08.)

On July 10, 2008, Attorney Gregory J. Teresi (who had been appointed Plaintiffs trial counsel on March 12, 2008), sent Plaintiff a letter, advising him that he was Plaintiffs counsel only for purposes of trial. (Dkt. No. 69; see also Dkt. No. 56, at 1 & n. 1.) In the letter, Attorney Teresi specifically advised Plaintiff, "[I]t is still your responsibility to respond to [Defendant Rae's second motion for summary judgment] if you so choose unless Judge Kahn issues an Order... [expanding the scope of] my assistance [to you]." (Dkt. No. 69.)Later that month, on July 28, 2008, Attorney Teresi sent Judge Kahn a letter regarding a pre-trial motion, at the end of which he requested, on Plaintiffs behalf, an extension of the deadline by which Plaintiff had to respond to Defendant Rae's second motion for summary judgment. (Dkt. No. 72.)

It does not appear that the request for an extension was ever decided. ( See generally Docket Sheet.) Rather, it appears from the Court's internal notes that, on September 15, 2008, Attorney Teresi was contacted by Magistrate Judge Homer's Chambers regarding the possibility of his filing a response, on behalf of Plaintiff, to Defendant Rae's second motion for partial summary judgment. During that conversation, it appears that Attorney Teresi advised Judge Homer's Chambers of the following: (1) a telephone conference between Attorney Teresi and Plaintiff was scheduled for September 29, 2008, during which Plaintiff was expected to confirm his intent to withdraw the claim against Defendant Rae, which was at issue in Defendant Rae's second motion for summary judgment; and (2) after that telephone conference on September 29, 2008, Attorney Teresi would contact Judge Homer's Chambers to advise Judge Homer whether Plaintiff has confirmed his intent to withdraw the claim (in which case Defendant Rae's motion would be moot), or whether the claim would go forward (in which case, Attorney Teresi would file a response to the motion). The Court's notes also reflect that, in the event the claim would go forward, a response date would be set by the Court.

The docket sheet reflects no further communication from either Plaintiff or Attorney Teresi for the next three months (except a change-of-address notice filed by Plaintiff). ( See Docket Sheet.) As a result, on January 26, 2009, Magistrate Judge Homer issued his Report-Recommendation on Defendant Rae's second motion for summary judgment. (Dkt. No. 81.)[10] In that Report-Recommendation, Judge Homer expressly and repeatedly found that Plaintiff had not opposed the motion. ( Id. at 2 & n. 3.)

*7 On February 2, 2009, Attorney Teresi filed, on Plaintiffs behalf, Objections to the Report-Recommendation. (Dkt. No. 82.)Generally, in his Objections, Plaintiff argues that Defendant Rae's motion should be denied for three alternative reasons: (1) Defendant Rae's faulty Rule 7.1 Statement precludes him from meeting his threshold burden in support of that motion; (2) neither the "favorable termination" rule nor the doctrine of collateral estoppel preclude Plaintiffs claim against Defendant Rae; and (3) Plaintiff has adduced admissible record evidence that his Eighth Amendment excessive force claim against Defendant Rae arises from Defendant Rae's use of force after Plaintiff was placed in handcuffs, and Defendant has not adduced any admissible record evidence controverting that fact. ( Id; see also Dkt. Nos. 83-85). In addition, Plaintiff argues that, under the circumstances, the Court should consider Attorney Teresi's Rule 7.1 Response, Opposition Memorandum of Law, and Attorney Declaration and Exhibits. ( Id. )

IV. ANALYSIS

When Magistrate Judge Homer prepared his Report-Recommendation on Defendant Rae's second motion for summary judgment, he was considering an unopposed motion. As a result, assuming that Plaintiff had received adequate notice of the consequences of failing to properly oppose Defendant Rae's second motion for summary judgment, [11] all that Defendant Rae needed to do to succeed on his motion was "demonstrate entitlement" to the relief requested.[12] An inquiry into whether a movant has met its "burden to demonstrate entitlement" to the relief requested under Local Rule 7.1(b)(3) is a more limited endeavor than a review of a contested motion.[13] This is because, as a practical matter, the burden requires only that the movant present an argument that is "facially meritorious."[14] After conducting a de novo review of Magistrate Judge Homer's Report-Recommendation, the Court concludes that Judge Homer correctly found that Defendant Rae had met his lightened burden on his unopposed motion.

The Court rejects Plaintiffs argument that (purported) defects in Defendant Rae's Rule 7.1 Statement preclude him from meeting his threshold burden in support of his motion. As required by Local Rule 7.1(a)(3), Defendant Rae's Rule 7.1 Statement set forth, in eight (8) numbered paragraphs, each material fact about which Defendant Rae contended there exists no genuine issue, and supported each factual assertion with a specific citation to the record where the fact was established. (Dkt. No. 68, Part 9.) In his Objections, Plaintiff does not contest these facts. (Dkt. No. 83, 111 [Plf.'s Proposed Rule 7.1 Response, admitting the facts in question].) Rather, he contends that the facts were not "complete, " as required by Local Rule 7.1(a)(3). (Dkt. No. 82, at 1; Dkt. No. 84, at 2-3.)Specifically, he argues that Defendant Rae "blatant[ly]" and "plainly ignored" the fact that the "barrage of kicks" that Defendant Rae allegedly inflicted on Plaintiff were inflicted - not before Plaintiff was handcuffed (as is assumed in Defendant Rae's Rule 7.1 Statement), but after Plaintiff was handcuffed. (Dkt. No. 83, ¶ 2; Dkt. No. 84, at 5.)

*8 The Court finds that Defendant Rae's Rule 7.1 Statement was sufficiently "complete" in order for him to meet his modest threshold burden under Local Rule 7.1(a)(3). Defendant Rae addressed what he asserts to be Plaintiffs version of the incident, in Paragraph 3 of his Rule 7.1 Statement. Plaintiff may disagree with whether that account is accurate. However, that disagreement does not render the Rule 7.1 Statement "incomplete" for purposes of Local Rule 7.1(a)(3).

Furthermore, it should be emphasized that, when Defendant Rae implied in Paragraph 3 of his Rule 7.1 Statement that the "barrage of kicks" were inflicted before Plaintiff was handcuffed, Defendant Rae was merely quoting from Paragraph 17 of Plaintiffs own Complaint. (Dkt. No. 68, Part 9, ¶ 3.) Paragraph 17 of Plaintiffs Complaint, which is verified, contains Plaintiffs sworn assertions regarding when the "barrage of kicks" were inflicted. (Dkt. No. 1, ¶ 17.) Moreover, Paragraph 18 of Plaintiffs Complaint starts with the words, "Officer Cross then jumped on Douglas['] back as Ketzer tightly cuffed Douglas['] wrist." ( Id. at ¶ 18.)As a result, Plaintiffs own Complaint swears that the "barrage of kicks" were inflicted before the handcuffing of Plaintiff. This sworn assertion is implicitly echoed in Paragraph 28 of Plaintiffs Complaint, which refers to the handcuffing after referring to the kicking. ( Id. at ¶ 28.)Simply stated, under the circumstances, Defendant Rae did not have a duty to cite Plaintiffs deposition transcript in order to render his Rule 7.1 Statement "complete" for purposes of Local Rule 7.1(a) (3)[15]

Turning to Plaintiffs arguments regarding the "favorable termination" rule and the doctrine of collateral estoppel, the success of both of these arguments depends on the Court's willingness to (1) accept as timely Plaintiffs Rule 7.1 Response, and (2) permit the expansion of the record before the Court to include Plaintiffs deposition transcript. (Dkt. No. 84, at 3-5.)Plainly stated, those two things are the vehicles by which Plaintiff attempts to bring before the Court evidence that Plaintiff continued to be kicked by Defendant Rae after he was handcuffed. ( Id. )

As an initial matter, the Court declines - at this late stage of its decision of Defendant Rae's motion - to accept as timely Plaintiffs Rule 7.1 Response, and permit the expansion of the record before the Court to include Plaintiffs deposition transcript.[16] Plaintiff should have presented these materials to Magistrate Judge Homer for his review and consideration. Plaintiff does not argue that his deposition transcript was not previously available to him during the time period in which he had to respond to Defendant Rae's motion, nor does he proffer any justification (reasonable or otherwise) for his failure to present it (along with his Rule 7.1 Response) to Judge Homer. (Dkt. Nos.82-85.)[17] To permit Plaintiff to introduce these materials now, without sufficient justification, would undermine the purpose (and work) of magistrate judges, encourage neglectful behavior by non-movants, and deprive Defendant Rae of an opportunity to reply to the evidence.[18]

*9 In any event, even assuming that the Court were to inclined to consider Plaintiffs deposition testimony at this late stage of deciding Defendant Rae's motion (which, again, it is not inclined to do), the Court would find that deposition testimony insufficient to create a genuine issue of material fact. In his motion papers, Defendant Rae met his modest threshold burden of showing that Plaintiffs conviction precludes his excessive force claim against Defendant Rae (because of the "favorable termination" rule and/or the doctrine of collateral estoppel). As a result, the burden shifted to Plaintiff to adduce admissible record evidence from which a rational fact-finder could conclude that his criminal conviction for attempted assault in the second degree on June 30, 2004, did not preclude his excessive force claim (because that conviction did not resolve, to his detriment, his claim that Defendant Rae kicked him after he was handcuffed). Even with the benefit of his deposition transcript, Plaintiff would fail to meet this burden. ( See generally Dkt. Nos. 82-85.)

The plea allocution between the Court and Plaintiff states that, "by pleading guilty to the reduced charge of attempted assault in the second degree, you are admitting that... on or about the 30th day of June, 2004, with intent to prevent a [peace] officer from performing a lawful duty, you attempted to cause physical injury to that peace officer, that being Sergeant John Rae of the Shawangunk Correctional Facility."(Dkt. No. 68, Part 6, at 5-7 [attaching pages "4" to "6" of Plaintiffs plea allocution].) In the portion of the deposition transcript adduced by Plaintiff during his Objection, there is no testimony that Plaintiffs conviction did not partially arise out of, or resolve the lawfulness of, Defendant Rae's alleged kicking Plaintiff after he was handcuffed, and while he was on the ground continuing to resist arrest.[19]

For all of these reasons, the Court rejects Plaintiffs arguments.

ACCORDINGLY, it is

ORDERED that Magistrate Judge Homer's Report-Recommendation (Dkt. No. 81) is ACCEPTED and ADOPTED in its entirety; and it is further

ORDERED that Defendant Rae's second motion for summary judgment (Dkt. No. 68) is GRANTED, and that judgment be entered in favor of Defendant Rae as to all claims against him; and it is further

ORDERED that the Clerk of the Court shall amend the docket sheet to indicate that Plaintiffs claims against Superintendent Smith and Nurse Skies were terminated on February 14, 2008.

Attorneys and Law Firms

Catalino Espinosa, Alden, NY, pro se.

Hon. Eric T. Schneiderman, New York State Attorney General, Dean J. Higgins, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.

REPORT-RECOMMENDATION AND ORDER[1]

DAVID R. HOMER, United States Magistrate Judge.

*1 Plaintiff pro se Catalino Espinosa ("Espinosa"), an inmate in the custody of the New York State Department of Correctional and Community Services ("DOCCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that eight DOCCS employees violated his constitutional rights under the Eighth Amendment. Compl. (Dkt. No. 1). Presently pending are (1) defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56 (Dkt No. 40); (2) Espinosa's motion to amend the complaint (Dkt. No. 47); and (3) Espinosa's motion to amend his opposition to defendants' motion for summary judgment (Dkt. No. 54). All motions are opposed. For the following reasons it is recommended that defendants' motion be granted in part and denied in part and it is ordered that Espinosa's motions be granted in part and denied in part.

I. Background

The facts are related herein in the light most favorable to Espinosa as the non-moving party. See Ertman v. United States, 165 F.3d 204, 206 (2d Cir.1999).

A. Use of Force

On July 26, 2007, Espinosa was issued a misbehavior report while he was housed in the dormitories at Bare Hill Correctional Facility. Espinosa Dep. (Dkt. No. 40-4) at 10 (hereinafter "Dep."); Dkt. No. 40-5 at 90.[2] Espinosa was then escorted from his housing unit dormitory to the Special Housing Unit ("SHU")[3] by defendant Corrections Officers Carter and Southworth and defendant Sergeant McCabe. Compl. at 4; Dep. at 11. Upon arriving at SHU, Espinosa was met by defendant Corrections Officer Arquette. Compl. at 4. Once inside the unit, Espinosa was escorted into a separate room used to perform strip searches. Id. at 4; Dep. at 13.

After being instructed to remove his clothing, Espinosa stated that McCabe "abruptly, viciously and without provocation... struck [Espinosa]... [in] his left eye, which cause [Espinosa] to fall to the ground." Compl. at 4; Dep. at 17. The remaining three defendants began kicking Espinosa in his legs, knees, and body. Compl. at 4; Dep. at 17-18, 20. The defendants then lifted Espinosa to his feet and began punching his head and body. Compl. at 4; Dep. at 20. McCabe then approached Espinosa, grabbed his throat, and choked him. Compl. at 4; Dep. at 20. Espinosa again fell to the floor where the remaining defendants continued to kick and punch him until he lost consciousness. Compl. at 4; Dep. at 20-21. Throughout the course of the assault, Espinosa contends he never resisted or used force. Compl. at 4.

McCabe, Carter, and Southworth escorted Espinosa from his dormitory to the SHU. McCabe Decl. ¶ 7; Carter Decl. (Dkt. No. 40-9) ¶ 5; Southworth Decl. (Dkt. No. 40-10) ¶ 5; No. 40-6 at 16. Upon arrival at SHU, Espinosa was turned over to Arquette for further processing without incident and Carter and Southworth remained outside of the SHU. Carter Decl. ¶¶ 6-7; Southworth Decl. ¶ ¶ 6-7; No. 40-6 at 16-17. Carter and Southworth assert they never assaulted Espinosa and never witnessed any other defendant strike him. Carter Decl. ¶ 8; Southworth Decl. ¶ 8; No. 40-6 at 16. They also never observed any injuries upon Espinosa's person. Carter Decl. ¶ 9; Southworth Decl. ¶ 9. McCabe was responsible for supervising Espinosa's admission to the SHU, which included a number of health and safety procedures, one of which was a strip frisk. McCabe Decl. (Dkt. No. 40-8) ¶¶ 4-5; Dkt. No. 40-6 at 12. Arquette performed the strip frisk on Espinosa with McCabe present, and concluded that SHU admissions process was professionally completed, without incident, and without any use of force by either himself or McCabe. Arquette Decl. (Dkt. No. 40-7) ¶¶ 4-7; McCabe Decl. ¶¶ 6, 20, 22; No. 40-6 at 12, 15, 18.

*2 During the frisk, Espinosa was not cooperative, indicating that he did not understand English and did not comprehend what was occurring. McCabe Decl. ¶ 8; No. 40-6 at 12. McCabe gestured to Espinosa, "such as pulling on [his] shirt, in an effort to convey to [Espinosa] what he needed to do, " which ultimately resulted in Espinosa cooperating with the strip frisk. McCabe Decl. ¶¶ 9-10; see also No. 40-6 at 12. McCabe had previously interacted with Espinosa, occasionally using an interpreter, often enough to "know, from experience, that Espinosa understood and c[ould] respond to simple questions." McCabe Decl. ¶¶ 11-12; see also No. 40-6 at 12.

B. Medical Treatment[4]

After Espinosa lost consciousness, he was awakened by the sound of nurse Hugaboom[5] calling his name. Compl. at 4; Dep. at 21. Espinosa claims to have been left without receiving any medical assistance by Arquette, Carter, Southworth, and McCabe, despite Espinosa's alleged moans of pain. Id. at 6. It is undisputed that Arquette, Carter, Southworth, and McCabe had no responsibilities to provide medical care to Espinosa. Arquette Decl. ¶ 8; McCabe Decl. ¶ 23; Carter Decl. ¶ 10; Southworth Decl. ¶ 10. Defendants also deny that they were aware of any medical injury requiring any reporting to medical personnel. McCabe Decl. ¶ 23; Carter Decl. ¶ 11; Southworth Decl. ¶ 11. Espinosa asserts that Hugaboom and defendant Arquette moved him into a SHU cell and leaving him, despite his pleas for medical attention. Compl. at 4; Dep. at 21-22. McCabe denies that Espinosa ever lost consciousness or received injuries which required treatment. McCabe Decl. ¶ 21.

McCabe contends that after completing the strip frisk, Hugaboom was called into the room and "attempted to ask questions pertaining to the frisk and explain facility sick call procedures, " Which Espinosa acknowledged. McCabe Decl. ¶¶ 13-14; see also Hugaboom Decl. (Dkt. No. 40-11) ¶¶ 5-7; No. 40-6 at 12, 21. Hugaboom "did a complete viewing... and observed no injuries or medical issues." McCabe Decl. ¶ 15; Hugaboom Decl. ¶¶ 5, 8; No. 40-6 at 21. Medical records reflect the same. Dkt. No. 41 at 174. Espinosa also failed to allege to Hugaboom any complaints of assault by staff. Decl. ¶ 8. McCabe attempted to continue the admissions procedure, but Espinosa again indicated that he did not understand, so Espinosa was escorted to his SHU cell, without incident, to await the arrival of non-party Serrano who acted as an interpreter and assisted Espinosa in completing the remainder of the admissions forms. McCabe Decl. ¶¶ 16-18; Serrano Decl. (Dkt. No. 40-12) ¶¶ 4-8; No. 40-6 at 12, 14. At that time, Espinosa made no complaints of injury to Serrano and there were no visual signs that he had been previously assaulted. McCabe Decl. ¶ 19; Serrano Decl. ¶¶ 9-10; No. 40-6 at 14.

The following day, Serrano returned to Espinosa's cell on his rounds. Serrano Decl. ¶ 13. It was at that time that Espinosa said that he was physically abused during his SHU admission. Serrano Decl. ¶ 13; No. 40-6 at 14. Espinosa "claimed that he had fallen during the admission, was picked up by the neck, and that someone had stepped on his knee." Serrano Decl. ¶ 14; see also No. 40-6 at 14. Espinosa showed Serrano "a thumb-sized bruise under his right upper arm, " and Serrano informed Security. Serrano Decl. ¶¶ 15-16; see also No. 40-6 at 14. Espinosa was escorted to medical where he was examined by nurse Mulverhill[6] Compl. at 5. Espinosa contends that no notes were taken during their interaction. Id. at 5. The inmate injury report indicates that there were "red marks [with] ecchymosis[7] noted to interior biceps, bilateral [complaints of right] knee discomfort, states has an old injury to the area [and complaints of] pain to [the right] shoulder." No. 40-6 at 24. The medical notes indicate that Espinosa was viewed in his shorts after the alleged assault with no additional details. Dkt. No. 41 at 173. Espinosa was also previously scheduled to meet with the doctor for preoperative testing. No. 40-6 at 24.

*3 Espinosa then had x-rays taken of his knee in connection with the previously scheduled testing, but contends that medical staff failed to obtain additional x-rays of his face where there was visible damage. Compl. at 5; Dep. at 31-33; No. 40-6 at 24. X-ray results from Espinosa's knee and shoulder showed unremarkable findings with mild degenerative joint disease noted in his knee. Dkt. No. 41 at 188; see also Dkt. No. 41 at 187 (x-ray results showing similar findings of "moderate osteroarthritic changes" taken in March 2008);182 (x-ray results showing "[m]inimal narrowing of the medial and lateral components... probably on the basis of cartilage degeneration, " and a screw, which was surgically implanted prior to the use of force, still running "transversely through the... tibia" taken in January of 2010). The medical staff also called non-party Officer Gonzales to act as an interpreter and explain the medical statement which had been prepared by Mulverhill in connection with the alleged use of force. Compl. at 5; No. 40-6 at 22-23. According to Espinosa, Gonzales merely read the statement, handed it to Espinosa, and instructed him to sign it. Id. at 5. Gonzalez attests that "this interview was translated exactly the way the inmate told [him and]... at all time while conducting the interpretation... [Gonzalez] conducted [him]self in a professional manner." No. 40-6 at 23. The inmate injury report which was translated and ultimately signed by Espinosa indicated an alleged assault with Espinosa's sole statement being that he "had a problem on the dorm yesterday and was taken to the box." No. 40-6 at 24.

Photographs were taken of Espinosa in his shorts. Compl. at 5; No. 40-6 at 25-27. Espinosa contends that the pictures are not illustrative of his true injuries because they were taken from such a great distance that the details of the bruising on his face are unrecognizable. Dep. at 35, 37. Espinosa was then escorted back to his cell. Compl. at 5. Espinosa contends that a Catholic priest came to his cell on July 27 and that he was responsible for "put[ting] everything in motion so that they would take [Espinosa] to the hospital and... take the pictures." Dep. at 39. However the priest remains unidentified. Dep. at 40.

Espinosa contends the lack of treatment persisted throughout his remaining twenty days at Bare Hill Correctional Facility. Compl. at 6; Dep. at 44 (explaining that he received no treatment for his eyes at Bare Hill). Espinosa contends that he "pled with [defendant] Superintendent Donelli to intervene; however, the Superintendent also chose to do nothing." Compl. at 6. Espinosa's medical records indicate that he was seen frequently by medical staff at Bare Hill, six times in two weeks, until his transfer to Auburn. Dkt. No. 41 at 171-73. Subsequent visits to medical reveal no additional complaints of any eye, head, knee, or shoulder injuries. Id. Additionally, records indicate that Espinosa was being provided with several prescription medications, as well as over-the-counter pain relievers, for a variety of health conditions. Id.

*4 Due to his the injuries, Espinosa contends he suffered permanent damage to his eye, throat, and knee. Compl. at 5; Dep. at 22-23, 26; but see Dep. at 28 (admitting that he had previous issues with his knee, including surgical intervention and the placement of pins). Espinosa is now classified as legally blind. Dep. at 23. Espinosa's medical records indicate that he has had visual complications, including a "h[istory] of decreasing vision." for twenty years "from [an] old traumatic injury." Dkt. No. 41-1 at 8. Espinosa was referred to a specialist multiple times from 2008 through 2010, and his medical records also indicate at least one eye appointment while housed at Bare Hill. Dkt. No. 41-1 at 8-11, 19. An appointment in June 2008 at the Harrison Eye Center indicated subjective reports of blurry vision since the trauma he suffered during the use-of-force incident. Dkt. No. 41-1 at 11. The eye clinic founmd possible optic nerve damage and requested a retinal evaluation. Id. After an appointment with an ophthalmologist and various testing in September 2008 at Wende Correctional Facility, glaucoma was suspected as the reason for Espinosa's visual difficulties. Dkt. No. 41-1 at 16.

Espinosa had another examination with Strong Memorial Hospital in November of 2008 where he reported continual gradual loss of vision in both eyes and it was found that he had "questionable optic neuropathy" and was suggested to be referred to a neuro-opthalmology clinic. Dkt. No. 41-1 at 15. Espinosa returned to Strong Memorial in January 2009 and was assessed as having a "functional visual loss" and was recommended to return in three months to the clinic. Dkt. No. 41-1 at 7. By April 2009, Espinosa reported that his vision was improving, but that he has been having headaches. Dkt. No. 41-1 at 6. The headaches were assessed as a type of migraine and the doctor "suspect[ed] that [the] episodes of transient bilateral visual loss are related to the migraine." Id. Thus, he recommended a different medication "which works much better for migraine prevention, especially for [Espinosa's] types of spells." Id. During his follow-up appointment in April 2010, there was little noted and it was recommended that he return in another year. T. 41-1 at 5.

Espinoi's medical records also indicate complaints of a sore throat and persistent headaches which he attributed to the use of force. Dkt. No. 41 at 76, 114, 120, 128, 168. Espinosa was given throat lozenges, warm salt water gargles, and sent to multiple specialists to have his throat scanned and scoped. Dkt. No. 41 at 47, 70, 79, 92, 95, 110, 120-21, 152, 184-86, 220-21, 223. Medical professionals wanted to biopsy the tissue for fear of cancerous tumors and ensure that there was not a stricture which was impeding his ability to swallow. Dkt. No. 41 at 218-19, 222. Espinosa was even scheduled for surgery to remove his tonsils. Dkt. No. 41 at 52-53, 56-59, 213-15, 219. Ultimately, it was determined that Espinosa did not require surgery and that there were no growths or lesions in his throat, though he did have acid reflux. Dkt. No. 41 at 202-05. Espinosa was counseled on appropriate diet and prescribed medication. Id. There is nothing in the record to indicate that these health conditions were attributable to the alleged assault.

*5 Espinosa was seen bi-weekly by medical staff for blood pressure checks because throughout his incarceration he was non-compliant with his medication resulting in uncontrolled hypertension. Dkt. No. 41 at 129-30, 133, 140-41, 158-63, 166. In November 2007, Espinosa was first placed in the infirmary and ordered to be supervised by nurses when taking his medication to ensure compliance. Dkt. No. 41 at 247-54. During this treatment, Espinosa was informed that his headaches were probably associated with his uncontrolled blood pressure. Dkt. No. 41 at 254 ("c [omplaints of] h[eadache]. Explained via interpreteur [sic] - h[eadache] cause by [increased] b[lood]p[ressure].") Espinosa was placed in the infirmary again for noncompliance in July 2008. Dkt. No. 41 at 244-46. Espinosa also indicated that he had suffered a head injury in 2005. Dkt. No. 41 at 168. There is nothing in the medical record that links the alleged assault with Espinosa's subsequent headaches.

C. Grievances[8]

On July 31, 2007, Espinosa filed a grievance related to the alleged assault. Dkt. No. 40-5 at 70-74. The Superintendent denied the grievance after receiving the investigatory findings. Dkt. No. 40-5 at 69; Dkt. No. 40-6 at 4, 10-11. Espinosa had been interviewed in conjunction with the investigation, but stated he had nothing additional to add. Dkt. No. 40-5 at 69; No. 40-6 at 31. Serrano was interviewed as well and stated that he did not recall any useof-force incident occurring. Dkt. No. 40-5 at 69; Dkt. No. 40-6 at 12-13. McCabe and Arquette also denied any and all allegations, along with Carter and Southworth, though the latter two defendants also stated that they never entered the SHU. Dkt. No. 40-5 at 69. Hugaboom also observed no injuries to Espinosa during the course of the admissions. Dkt. No. 40-5 at 69. The following day, Espinosa was escorted to medical where photos and x-rays were taken, though the x-rays were in conjunction with an unrelated, upcoming, medical procedure. Dkt. No. 40-5 at 69. Marks were also noted on Espinosa's body, as were complaints of pain to Espinosa's knee, though that was attributed to a prior injury. Dkt. No. 40-5 at 69. The medical statement ultimately signed by Espinosa at the conclusion of the examination also failed to indicate alleged abuse. Dkt. No. 40-5 at 69. Espinosa again appealed the findings. Dkt. No. 40-5 at 68, 69, 75-78. Denial of the grievance was ultimately affirmed by CORC on October 31, 2007, citing "a proper investigation, " and insufficient evidence to overturn the denial. Dkt. No. 40-5 at 67.

Espinosa also filed multiple grievances in early 2008, contending that he was receiving inadequate medical treatment. Dkt. No. 40-5 at 84-88. These grievances were also denied due to the fact that in the prior six months he had been seen by either a nurse practitioner or facility physician on five occasions. Dkt. No. 40-5 at 81. The grievance was appealed and ultimately denied by CORC. Dkt. No. 40-5 79-80, 82, 89.

II. Discussion

*6 Espinosa alleges that his Eighth Amendment rights were violated when were deliberately indifferent to his serious medical needs. Additionally, Espinosa alleges that his Eighth Amendment rights were violated when McCabe, Arquette, Carter, and Southworth used excessive force against him. Defendants seek dismissal because (1) his constitutional claims are meritless; (2) no evidence exists of the personal involvement of various defendants; and (3) the Eleventh Amendment prohibits suit against defendants in their official capacities.

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; 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).

When, as here, a party seeks summary judgment against a pro se litigant, a court must afford the non-movant special solicitude. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.2006); see also Sealed Plaintiff v. Sealed Defendant # 1, 537 F.3d 185, 191-92 (2d Cir.2008) ("On occasions too numerous to count, we have reminded district courts that when [a] plaintiff proceeds pro se, ... a court is obliged to construe his pleadings liberally.' "(citations omitted)). However, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson, 477 U.S. at 247-48.

B. Personal Involvement

Defendants contend that Espinosa has failed to establish that Donelli was personally involved in any of the alleged constitutional deprivations and that McCabe, Carter, Arquette, and Southworth were personally involved with his medical care. "c[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. Id.; Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.1996). Supervisory personnel may be considered "personally involved" if:

*7 (1) [T]he defendant participated directly in the alleged constitutional violation;
(2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong;
(3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom;
(4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts; or
(5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986)).[9]

1. Donelli

Espinosa contends that Donelli was personally involved because he pled with Donelli to intervene and Donelli failed to act. During his deposition, Espinosa stated that because Donelli was "the superintendent of the prison... he should know." Dep. at 34. In essence, it appears that Espinosa claims Donelli is responsible because of his position in a chain of command, which is insufficient to establish personal involvement. Wright, 21 F.3d at 501. Furthermore, "[t]he law is well established... that a failure to process, investigate or respond to a prisoner's grievances does not in itself give rise to a constitutional claim." Rosales v. Kikendall, 677 F.Supp.2d 643, 650 (W.D.N.Y.2010) (internal quotation marks and citation omitted).

It is unclear when or how Espinosa approached Donelli. However, even construing the facts in the light most favorable to Espinosa, the alleged single notice, after the event occurred, is still insufficient. See Harnett v. Barr, 538 F.Supp.2d 511, 524 (N.D.N.Y.2008) (concluding that a distinction lies between a supervisory official that is "confronted with an alleged violation that has ended or... is... a continuing violation, " as with the latter the supervisory officially is deemed "personally involved if he is confronted with a situation that he can remedy directly.") (internal quotation marks and citations omitted). Moreover, if Espinosa communicated with Donelli via mail, such correspondence is also not enough as receipt of a letter, without personally investigating or acting on the letter or grievance, is also insufficient to establish personal involvement. See, e.g., Rivera v. Fischer, 655 F.Supp.2d 235, 238 (W.D.N.Y.2009) (citing cases); Boddie v. Morgenthau, 342 F.Supp.2d 193, 203 (S.D.N.Y.2004) ("While mere receipt of a letter from a prisoner is insufficient to establish individual liability... [p]ersonal involvement will be found... where a supervisory official receives and acts on a prisoner's grievance or otherwise reviews and responds to a prisoner's complaint.").

Accordingly, defendants' motion on this ground should be granted as to Donelli.

2. McCabe, Arquette, Carter, and Southworth

*8 Espinosa contends that these defendants abandoned him in a cell, while he was moaning and writhing in pain, instead of taking him to the infirmary to receive medical attention. While it is undisputed that these defendants are not medical providers and thus were not responsible for Espinosa's medical care, Espinosa asserts that they directly interfered with the provision of his care by leaving him in isolation instead of alerting the appropriate medical officials. This suffices to allege direct involvement in an alleged constitutional violation. See Baumann v. Walsh, 36 F.Supp.2d 508, 512 (N.D.N.Y.1999) ("Non-medical prison personnel engage in deliberate indifference where they intentionally deny access to medical care when the inmate was in extreme pain and has made his medical problem known....") (internal quotation marks and citations omitted).

Accordingly, defendants' motion on this ground should be denied as to these defendants.

C. Eighth Amendment

The Eighth Amendment explicitly prohibits the infliction of "cruel and unusual punishment." U.S. Const. amend. VIII. Eighth Amendment obligations include the duty to protect prisoners from other known harms. Farmer v. Brennan, 511 U.S. 825, 829 (1970); Matthews v. Armitage, 36 F.Supp.2d 121, 124 (N.D.N.Y.1999) (citations omitted). It also includes the provision of medical care. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994). The test for a § 1983 claim is twofold. First, the prisoner must show that the condition to which he was exposed was sufficiently serious. Farmer, 511 U.S. at 834. Second, the prisoner must show that the prison official demonstrated deliberate indifference by having knowledge of the risk and failing to take measures to avoid the harm. Id. "[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted." Id. at 844.

1. Excessive Force

Inmates enjoy an Eighth Amendment protection against the use of excessive force and may recover damages for its violation under § 1983. Hudson v. McMillian, 503 U.S. 1, 9-10 (1992). The Eighth Amendment's prohibition against cruel and unusual punishment precludes the "unnecessary and wanton infliction of pain." Gregg v. Georgia, 428 U.S. 153, 173 (1976); Sims v. Artuz, 230 F.3d 14, 20 (2d Cir.2000). To bring a claim of excessive force under the Eighth Amendment, a plaintiff must establish both objective and subjective elements. Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir.1999).

The objective element is "responsive to contemporary standards of decency" and requires a showing that "the injury actually inflicted is sufficiently serious to warrant Eighth Amendment protection." Hudson, 503 U.S. at 9 (internal citations omitted); Blyden, 186 F.3d at 262. However, "the malicious use of force to cause harm constitute [s] [an] Eighth Amendment violation per se" regardless of the seriousness of the injuries. Blyden, 186 F.3d at 263 (citing Hudson, 503 U.S. at 9). "The Eighth Amendment's prohibition of cruel and unusual' punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Hudson, 503 U.S. at 9-10 (citations omitted). "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.'" Sims, 230 F.3d at 22 (citation omitted).

*9 The subjective element requires a plaintiff to demonstrate the "necessary level of culpability, shown by actions characterized by wantonness." Id. at 21 (citation omitted). The wantonness inquiry "turns on whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.'" Id. (quoting Hudson, 503 U.S. at 7). In determining whether defendants acted in a malicious or wanton manner, the Second Circuit has identified five factors to consider: "the extent of the injury and the mental state of the defendant [;]... the need for the application of force; the correlation between that need and the amount of force used; the threat reasonably perceived by the defendants; and any efforts made by the defendants to temper the severity of a forceful response." Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir.2003) (internal quotation marks and citations omitted).

Defendants' contend that Espinosa's claims are insufficient to establish an Eighth Amendment violation because they are "unsupported and inconsistent with witness accounts and the medical records prepared at the time of the alleged event." Defs. Mem. of Law (Dkt. No. 40-13) at 8. Espinosa contends that he was viciously attacked by four unprovoked corrections officers while he was being compliant and non-resistant. As a result of being punched in the face, kicked throughout the head and body, and choked, Espinosa contends he suffered permanent damage to his eye, head, throat, and knee. Espinosa's medical records indicate continued treatment for headaches, vision loss, sore throats, and knee pain. Such injuries could be indicative of suffering multiple blows to the head and body. Moreover, such injuries resulting from the events as described by Espinosa could represent a per se constitutional violation. See Baskerville v. Mulvaney, 411 F.3d 45, 48-49 (2d Cir.2005).

Similar defects in defendants' argument are noted when evaluating the subjective prong of the analysis. Defendants' contend that on the date in question, Espinosa was escorted into the SHU admissions room, subjected to a strip frisk without any force being used, examined by medical staff who saw no visible injuries, escorted to his cell without incident, and further exposed to a corrections counselor who noticed no visible bodily injuries and noted no complaints of violence. Conversely, Espinosa contends that upon entering the room and disrobing, he was viciously assaulted by McCabe, Carter, Arquette and Southworth, thrown into a cell by Hugaboom and Arquette without receiving medical assistance, and essentially implied that Hugaboom and Serrano lied about the documents that they filed allegedly witnessing Espinosa, without injuries, prior to and after the strip frisk. These allegations were consistently asserted by Espinosa in the inmate incident report, grievance, complaint, and deposition.

This competing evidence rests on the credibility of Espinosa on the one hand and defendants on the other. In these circumstances, the governing law that the evidence must be viewed in the light most favorable to the non-moving party, leaves no choice but to credit Espinosa's version of events for purposes of this motion. See In re Dana Corp., 574 F.3d 128, 152 (2d Cir.2009) (holding that a court faced with a motion for summary judgment must draw all reasonable inferences in favor of the non-moving party and may not make credibility determinations or weigh the evidence, functions which are reserved to a jury and not a judge) (citing cases).

*10 As described above, Espinosa's evidence would establish that the use of force was an unnecessary tactic implemented not to restore or maintain order, but to maliciously assault an inmate for no apparent reason. Moreover, such actions in assaulting this inmate could constitute a per se constitutional violation. Thus, viewing the facts in the light most favorable to Espinosa, he has proffered sufficient evidence to raise an issue of fact as to the objective prong of the Eighth Amendment analysis to require resolution by a jury. Furthermore, if Espinosa's evidence is credited, the actions of McCabe, Arquette, Carter, and Southworth could be found wanton and malicious. The need for force in response to behavior which was both compliant and non-threatening could be deemed malicious. This conduct could be found unreasonable and unnecessary to sustain institutional order and safety. Thus, such actions, as alleged by Espinosa, are more than sufficient as well to raise a question of material fact as to the subjective prong of the Eighth Amendment analysis.

Accordingly, defendants' motion for summary judgment on this ground should be denied.

2. Medical Care

"Because society does not expect that prisoners will have unqualified access to healthcare, ' a prisoner must first make [a] threshold showing of serious illness or injury" to state a cognizable claim. Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir.2003) (quoting Hudson, 503 U.S. at 9). Because there is no distinct litmus test, a serious medical condition is determined by factors such as "(1) whether a reasonable doctor or patient would perceive the medical need in question as important and worthy of comment or treatment, ' (2) whether the medical condition significantly affects daily activities, and (3) the existence of chronic and substantial pain." Brock v. Wright, 315 F.3d 158, 162-63 (2d Cir.2003) ( citing Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998)). The severity of the denial of care should also be judged within the context of the surrounding facts and circumstances of the case. Smith, 316 F.3d at 185.

Deliberate indifference requires the prisoner "to prove that the prison official knew of and disregarded the prisoner's serious medical needs." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998). Thus, prison officials must be "intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Estelle v. Gamble, 429 U.S. 97, 104 (1976). "Mere disagreement over proper treatment does not create a constitutional claim" as long as the treatment was adequate. Chance, 143 F.3d at 703. Thus, "disagreements over medications, diagnostic techniques (e.g., the need for X-rays), forms of treatment, or the need for specialists... are not adequate grounds for a section 1983 claim." Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F.Supp.2d 303, 312 (S.D.N.Y.2001).

*11 Here, Espinosa contends that defendants failed to provide him with appropriate medical care for his eye, head, knee, and shoulder and interfered with the provision of such care.

a. Provision of Medical Care

While Espinosa did not identify any medical professionals by name in his complaint, he proffers general complaints of inadequate medical care. The medical record shows entries for both the day that the alleged assault occurred, as well as the day after. Espinosa was also seen by medical staff six times in the following two weeks. There were no additional complaints of pain or injury to his eyes, head, throat, shoulder or knee. Records also indicate the provision of several medications for his various health care needs. Such repeated contacts and the provision of medication belie a claim of deliberate indifference.

Furthermore, Esprosa received an x-ray of his knee and shoulder and was photographed in conjunction with his incident injury report. Espinosa's contentions that his radiology testing should have encompassed additional body parts or that the photographs should have been taken in a different manner are insufficient to establish an Eighth Amendment claim. Chance, 143 F.3d at 703. The injury report also indicated a medical examination by documenting the bruises on his arms and complaints of pain to both the knee and shoulder. The medical record also reflects that overthe-counter pain relievers were provided to Espinosa when he was seen by medical staff four days later. Documentation of injuries and provision of pain relievers also obviate claims of deliberate indifference.

Accordingly, defendants' motion should be granted on this ground.

b. Interference with Provision of Medical Care

Espinosa contends that McCabe, Arquette, Carter, Southworth, and Hugaboom also left him in his cell, while injured, refusing to refer medical to him for provision of much needed medical care. "Non-medical prison personnel engage in deliberate indifference where they intentionally deny access to medical care when the inmate was in extreme pain and has made his medical problem known...." See Baumann v. Walsh, 36 F.Supp.2d 508, 512 (N.D.N.Y.1999) (internal quotation marks and citations omitted). Viewing the facts in the light most favorable to Espinosa, he asserts that after being assaulted and losing consciousness, McCabe, Carter and Southworth abandoned him and failed to provide notification to the proper individuals that medical assistance was necessary. Moreover, defendants Arquette and Hugaboom moved Espinosa, who was moaning in pain, to a cell where they left him. Aide did not come until the next morning and, regardless of whose version of events is credited, medical was not notified by any of the above named defendants. Thus, their actions or inaction raise a question of material fact as to whether they intentionally delayed Espinosa's access to medical care.

Accordingly, defendants' motion should be denied on this ground.

D. Conspiracy

*12 Espinosa alleges that the Arquette, Carter, Southworth, and McCabe conspired to use excessive vorce against Espinosa. In order to support a claim for conspiracy pursuant to § 1985, there must be "(1) an agreement...; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." Ciambriello v. County of Nassau, 292 F.3d 307, 324-25 (2d Cir.2002); Cusamano v. Sobek, 604 F.Supp.2d 416, 468 (N.D.N.Y.2009). An agreement must be alleged with specificity as bare allegations of a conspiracy supported only by allegations of conduct easily explained as individual action is insufficient. See Iqbal v. Hasty, 490 F.3d 143, 177 (2d Cir.2007); see also Gyadu v. Hartford Ins. Co., 197 F.3d 590, 591 (2d Cir.1999). Thus, Espinosa must "make an effort to provide some details of time and place and the alleged effects of the conspiracy... [including] facts to demonstrate that the defendants entered into an agreement, express or tacit, to achieve the unlawful end." Warren v. Fischl, 33 F.Supp.2d 171, 177 (E.D.N.Y.1999) (citations omitted). While exact specifics are not required, "the pleadings must present facts tending to show agreement and concerted action." Anilao v. Spota, 774 F.Supp.2d 457, 512-13 (E.D.N.Y.2011) (citations omitted). Conclusory, vague, and general allegations are insufficient to support a conspiracy claim. Ciambriello, 292 F.3d at 325.

Espinosa alleges a general conspiracy between all defendants employed by DOCCS. These claims are conclusory and fail to establish how, when or why defendants at different levels of management colluded and formed these alleged schemes. While specifics are unnecessary, Espinosa fails to provide any plausible information which would lend credence to his claims of an explicit or implicit agreement between any or all of these defendants. Accordingly, defendants' motion as to the claims of conspiracies should be granted.

E. Eleventh Amendment

Espinla sues the defendants in both their individual and official capacities. Compl. Defendants seek summary judgment on Espinosa's claims against them in their official capacities. The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. "[D]espite the limited terms of the Eleventh Amendment, a federal court [cannot] entertain a suit brought by a citizen against his [or her] own State." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984) (citing Hans v. Louisiana, 134 U.S. 1, 21 (1890)). Regardless of the nature of the relief sought, in the absence of the State's consent or waiver of immunity, a suit against the State or one of its agencies or departments is proscribed by the Eleventh Amendment. Halderman, 465 U.S. at 100. Section 1983 claims do not abrogate the Eleventh Amendment immunity of the states. See Quern v. Jordan, 440 U.S. 332, 340-41 (1979).

*13 A suit against a state official in his or her official capacity is a suit against the entity that employs the official. Farid v. Smith, 850 F.2d 917, 921 (2d Cir.1988) ( citing Edelman v. Jordan, 415 U.S. 651, 663 (1974)). "Thus, while an award of damages against an official in his personal capacity can be executed only against the official's personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself, " rendering the latter suit for money damages barred even though asserted against the individual officer. Kentucky v. Graham, 473 U.S. 159, 166 (1985). Here, Espinosa seeks monetary damages against defendants in their official capacities for acts occurring within the scope of their duties with DOCCS. Thus, the Eleventh Amendment bar applies and serves to prohibit EspincW claim for monetary damages against defendants in their official capacities.

Accordingly, it is recommended that defendants' motion on this ground be granted.

III. Motion to Amend

Rule 15(a) provides that a court should grant leave to amend "freely... when justice so requires." When exercising its discretion, a court must examine whether there has been undue delay, bad faith, or dilatory motive on the part of the moving party. Evans v. Syracuse City School District, 704 F.2d 44, 46 (2d Cir.1983) ( citing Foman, 371 U.S. at 182). The court must also examine whether there will be prejudice to the opposing party. See, e.g., Ansam Associates Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir.1985) (permitting proposed amendment would be especially prejudicial once discovery has been completed and a summary judgment motion filed). Finally, where it appears that granting leave to amend is unlikely to be productive or the amendment is futile, it is not an abuse of discretion to deny leave to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.1993) (citations omitted).

Espinosa seeks to add various defendants to his claim and new causes of action. For the reasons articulated below the motion to amend should be granted in part and denied in part.

1. Individual Defendants

a. Serrano and Hugaboom

Espinosa seeks leave to substitute Serrano and Hugaboom for two of the "John Doe" defendants. Serrano and Hugaboom were both previously identified and interviewed by defendants, providing affidavits in support of the present motion for summary judgment. When determining whether to properly dismiss a John or Jane Doe defendant, dismissal on 4(m) grounds is precluded when the inmate has "provide[d] information necessary to identify the defendant.... " Murray v. Pataki, 378 Fed.Appx. 50, 52 (2d Cir.2010) (citations omitted). Using similar logic, it appears that given defendants' actual knowledge of Hugaboom's alleged activity in the present case, his easy identification, and defendants' actions in already interviewing him, they will suffer no prejudice with him being added as a defendant. While Serrano was not initially named in any capacity. The same argument holds true. Defendants have had the opportunity and benefit of his testimony, thus even though the timing of the motion to amend is late, it is not prejudicial in this respect.

*14 Addition of both of these defendants is also relevant to the issues concerning Espinosa's Eighth Amendment interference with medical treatment claims. Both defendants have been identified as speaking and seeing to Espinosa on the date of the alleged assault and neither informed medical personnel of Espinosa's proffered severe injuries. Thus, the divergence in testimony results in a credibility determination and also a question about the material facts of the case.

Accordingly, Espinosa's motion to amend with respect to these defendants is granted.

b. Mulverhill, Gonzalez and LaRock

Espinosa also seeks to substitute these three defendants for "John/Jane Doe" defendants. For the reasons stated above, Mulverhill should be substituted as the named Jane Doe defendant. However, addition of claims against Mulverhill, Gonzalez or LaRock would be futile for the reasons articulated above. These three individuals were involved in the medical interview and treatment provided on July 27, the day subsequent to the alleged assault. It is uncontroverted that during that appointment Espinosa was examined, given an x-ray, photographed, and provided with pain medication. While Espinosa disagrees with the type of pain medication provided ( See Proposed Am. Compl. (Dkt. No. 47) ¶ 54, preferring pain relief stronger than an over the counter medication, or amount of radiology reports or photographs taken, such decisions are within the purview of the medical department. Disagreements with diagnoses and courses of treatment are insufficient to establish an Eighth Amendment claim. Sonds, 151 F.Supp.2d at 312. Moreover, for reasons discussed infra Espinosa had no constitutional right to an investigation or grievance program. Therefore, to the extent that these photographs were to be used in conjunction with an investigation or the grievance program, such complaints are insufficient to establish a constitutional claim. Accordingly, Espinosa's motion to amend to add these three as defendants is denied on this ground.

c. Jubert

Espinosa seeks to add Jubert for his position as an acting Superintendent and dissemination of a memorandum that apparently misinformed other officers how to initiate and complete an investigation. Proposed Am. Compl. ¶ 14. Addition of this defendant would also be futile for similar reasons outlined with Donelli. Position in a hierarchical chain of command is insufficient to establish personal involvement, which is necessary in a § 1983 claim. Wright, 21 F.3d at 501. Moreover, Espinosa failed to establish that, as acting Superintendent, Jubert was responsible for the creation of the aforementioned policy. Even if he was, the amendment would still be futile for multiple reasons. First, for reasons discussed infra, Espinosa is not entitled to any particular investigation as an inmate. Second, Espinosa misstates the policy, which instructs individuals to gather all information, including concise and direct written statements unequivocally expressing the parties' sides, and "evaluate [the evidence and prepare a statement]... to the extent that it supports or refutes the allegations made by the [inmate]." Dkt. No. 47-1 at 40. This memorandum promotes objective findings after an investigation where contact is to be made with all relevant parties, including both the corrections officers against who the grievance was filed as well as the inmate making the complaints. Id. Therefore, Espinosa's motion to amend is denied on these grounds.

d. Johnson

*15 Espinosa seeks to add Johnson as a defendant based upon how he conducted the investigation into Espinosa's use of force grievance. Proposed Am. Compl. ¶ 16. This amendment is futile because even viewing the facts in the light most favorable to Espinosa, he has failed to state a claim upon which relief can be granted because he has no constitutional right to an investigation. See Carrasquillo v. City of N.Y., 324 F.Supp.2d 428, 438 (S.D.N.Y.2004) (holding that prisoners have "no constitutional or federal right to an investigation into... [an] accident, or to have his requests for an investigation answered"). Therefore, Espinosa's motion to amend should be denied on these grounds.

e. Jane Doe

Espinosa also seeks to add a Jane Doe nurse to his complaint. Proposed Am. Compl. ¶ 17. This is presumably the same Jane Doe from his initial complaint which, unlike Hugaboom and Mulverhill, have not been identified by either Espinosa or defendants throughout the course of discovery. Rule 4(m) of the Federal Rules of Civil Procedure provides in part:

If a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

Accordingly, as more than 120 days have passed, this defendant should be dismissed from the original complaint. For these same reasons, allowing amendment to include this defendant is futile. Accordingly, Espinosa's motion to amend is denied on these grounds.

f. The State of New York

Espinosa also seeks to add the State of New York as a defendant in his complaint. Proposed Am. Compl. ¶ 19. Such amendments would be futile because Eleventh Amendment immunity bars § 1983 suits against the state of New York. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984) (citing Hans v. Louisiana, 134 U.S. 1, 21 (1890)); Quern v. Jordan, 440 U.S. 332, 340-41 (1979). Accordingly, Espinons motion on this ground is denied.

g. County of Franklin

Espinosa also seeks to add the County of Franklin as a defendant in his complaint. Proposed Am. Compl. ¶ 18. Espinosa contends that Franklin County "failed to establish proper and effective safeguards to protect a prisoner/inmate from being abused by prison officials and prison nurses.... "Id. Espinosa fails to articulate how the county was involved or which policies it created or endorsed which were unconstitutional. Accordingly, allowing amendment of the complaint would be futile and Espinosa's motion on this ground is denied.

2. Causes of Action

a. Use of Force

Defendants' discovery has concerned the actions and inactions which occurred on July 26, including testimony, documentation, and medical records from the previously named defendants, as well as the two just recommended to be added to the complaint. Accordingly, Espinosa's amended complaint should be granted to the extent that it encompasses the events which occurred on July 26, before and after the use of force. Proposed Am. Compl. ¶ 22-34.

b. Failure to Investigate & Follow DOCCS Grievance Procedures

*16 As previously stated, Espinosa's claims relating to his right to an investigation are not cognizable and, thus, are futile. Carrasquillo, 324 F.Supp.2d at 438. To the extent that Espinosa contends any defendant failed to follow DOCCS procedures related to investigations or the grievance program, such claims are similarly futile. Proposed Am. Compl. ¶¶ 55-64. This is because any contentions alleging compensation for defendants' failure to comply with DOCS policies and protocols for investigating grievances are not recognized as constitutional rights. Bolden v. Alston, 810 F.2d 353, 358 (2d Cir.1987) ("State procedural requirements do not establish federal constitutional rights. At most, any violation of state procedural requirements would create liability under state law...."). Furthermore, "inmate grievance programs created by state law are not required by the Constitution and consequently allegations that prison officials violated those procedures does not give rise to a cognizable § 1983 claim." Shell v. Brzezniak, 365 F.Supp.2d 362, 370 (W.D.N.Y.2005) (citations omitted); see also Cancel v. Goord, No. 00-C2042 (LMM), 2001 WL 303713, at *3 (S.D.N.Y. Mar. 29, 2001) ("[I]nmate grievance procedures are not required by the Constitution and therefore a violation of such procedures does not give rise to a claim under § 1983.") (citations omitted).

Thus, to the extent Espinosa complains about the mechanics of how his grievance was initiated, investigated, or decided, such contentions are meritless.[10]

c. Conspiracy

Espinosa also alleges that the defendants he sought to add to the complaint were involved in a global conspiracy. Proposed Am. Compl. ¶¶ 35, 52. While exact specifics are not required, "the pleadings must present facts tending to show agreement and concerted action." Anilao v. Spota, 774 F.Supp.2d 457, 512-13 (E.D.N.Y.2011) (citations omitted). Conclusory, vague, and general allegations are insufficient to support a conspiracy claim. Ciambriello, 292 F.3d at 325. For the same reasons stated above, these vague and conclusory allegations also fail to establish how, when or why defendants' different levels of management colluded and formed these alleged schemes. Espinosa similarly fails to provide any plausible information which would lend credence to his claims of an explicit or implicit agreement between any or all of these defendants. Therefore, Espinosa's motion to amend as to the conspiracy claim is denied.

IV. Espinosa's Motion to Amend His Response to Defendants' Motion for Summary Judgment

The motion to amend/correct is composed of a statement of material facts, memorandum of law, and proposed stipulation of consent to defendants' counsel. Dkt. No. 54. Defendants have opposed that motion. Dkt. No. 55. Espinosa's motion to amend/correct has been reviewed and considered, as the submission primarily represents his legal arguments and does not include additional proof which was not otherwise in evidence and previously evaluated by the undersigned. Accordingly, consideration of Espinosa's motion was not prejudicial to defendants, the motion is granted, and there is no need for defendants to file a reply.

V. Conclusion

*17 For the reasons stated above, it is hereby:

1. RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 40) be:

A. DENIED as to all Eighth Amendment claims against defendants McCabe, Arquette, Carter, and Southworth; and

B. GRANTED as to all other claims and defendants;

2. ORDERED that:

A. Espinosa's motion for leave to file an amended complaint (Dkt. No. 47) be:

1. GRANTED as to ¶¶ 22-34 and to the extent that it adds Hugaboom and Serrano as defendants;

2. DENIED as to all other proposed claims and defendants; and

3. Espinosa shall file and serve an amended complaint in accordance with this decision on or before September 15, 2012; and

B. Espinosa's motion to amend/correct his summary judgment response (Dkt. No. 54) is GRANTED.

Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Small v. Sec'y of HHS, 892 F.2d 15 (2d Cir.1989); 28 U.S.C. § 636(b) (1); Fed.R.Civ.P. 72, 6(a), 6(e).

Attorneys and Law Firms

Muriel Goode-Trufant, Esq., Assistant Corporation Counsel, New York.

Joseph George, Groveland Correctional Facility, Sonyea.

MEMORANDUM AND ORDER

BUCHWALD, District J.

*1 Plaintiff Joseph George ("George" or "plaintiff'), acting pro se, filed this complaint pursuant to 42 U.S.C. § 1983 against Correction Officer Burton ("C.O.Burton"), Correction Officer Cascio ("C.O.Cascio"), Correction Captain Corrall ("C.C.Corrall"), New York City Department of Correction Services ("DOCS"), Warden Anthony Serra ("Warden Serra") and Inmate Flores ("Flores") (collectively "defendants"), alleging that defendants violated his constitutional rights by failing to prevent Inmate Flores' assault on plaintiff. Defendants move to dismiss pursuant to Fed.R.Civ.P. 12(c). For the following reasons, defendants' motion is granted.

BACKGROUND[1]

At the time of the events in question, plaintiff was a "nonsentenced detainee"[2] at the Riker's Island DOCS facility. Plaintiff was assigned to be a Suicide Watch Aid in the Inmate Protective Custody Unit. On various dates between October 1997 and February 10, 1998, defendants C.O. Burton and C.O. Cascio instructed plaintiff to carry "feed-up" food trays into the Special Housing Unit ("SHU") and to give them to three inmates housed therein: Inmate Mohommad, Inmate Escobar and Inmate Flores (collectively "the inmates"). On several occasions, plaintiff protested to defendants C.O. Burton, C.O. Cascio and C.C. Corral that he had been threatened by inmates in the Special Housing Unit.

On February 10, 1998, at approximately 5:10 a.m., C.O. Burton instructed plaintiff to bring feed-up trays to the inmates. Plaintiff delivered the food-trays to Mohammad and Escobar without incident. After plaintiff delivered each tray, C.O. Burton locked and secured the inmate's cell. Upon entering Flores' cell, plaintiff observed "what appeared to be a sock' wrapped around inmate Flores' hand."Flores is normally confined to a wheelchair but was sitting on his bed that morning. Flores swung at plaintiff and struck him "upon his left eye", rendering him momentarily unconscious. When plaintiff regained consciousness, people were dragging him out of the cell screaming "Get away from him! leave him alone! Stop hitting him!" Plaintiff observed C.O. Burton yelling to C.O. Cascio to lock the door and to assist him in restraining Flores.

Plaintiff was brought to C.O. Cascio's security post and then escorted to the infirmary by two unidentified officers. Plaintiff asked the officers to arrange to have his injuries photographed. He was treated at the infirmary and released the next day. Upon later medical examination, plaintiff learned that he had received permanent damage to his left eye that would require him to use corrective eyewear.

Plaintiff filed suit in this Court on January 10, 2000 and amended his complaint on August 9, 2000. Now before us is defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b) (6).

DISCUSSION

I. Legal Standard Applicable to Motion to Dismiss

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of, in this case, the complaint, and should be granted "only if it is clear that no relief could be granted under any set of facts consistent with the allegations. " Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) ( citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In this context, our function is "merely to assess the legal feasibility of the complaint, not to assay the legal feasibility of the evidence which might be offered in support thereof." Geiskr v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980). We acknowledge, towards this end, the well-settled principle that the movant bears the burden of persuasion and that the nonmovant's well-pleaded factual allegations must be accepted as true. Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991). Moreover, a complaint submitted pro se must be liberally construed and held to a less rigorous standard of review than formal pleadings drafted by an attorney. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Salahuddin v. Coughlin, 781 F.2d 24, 28 (2d Cir.1986).

II. Claims Against the DOCS

*2 Plaintiff has named the DOCS as a defendant, but not New York City ("the City") itself. This violates provisions of the City's Charter and is a sufficient ground for dismissing plaintiffs claims against the DOCS. See N.Y. City Charter Ch. 17 § 396.[3] Nevertheless, even construing plaintiffs complaint as having named the City, his claim is improperly pled. Specifically, plaintiff has failed to allege that a municipal policy, practice, or custom caused his injuries, as required for a finding of municipal liability under Monell v. Department of Social Servs., 436 U.S. 658, 690-91 (1978). Furthermore, plaintiff has failed to proffer any facts in his complaint from which we can infer such a pattern or practice. Accordingly, plaintiffs claims against the DOCS are dismissed with prejudice.

III. Claims Against Correction Officers

Prison administrators "are under an obligation to take reasonable measures to guarantee the safety of the inmates. " Hudson v. Palmer, 468 U.S. 517, 526-527 (1984); accord Ayers v. Coughlin, 780 F.2d 205, 208 (2d Cir.1985) (citing United States v. Bailey, 444 U.S. 394, 423 (1980))."In particular, as the lower courts have uniformly held, and as we have assumed, prison officials have a duty... to protect prisoners from violence at the hands of other prisoners." Farmer v. Brennan, 511 U.S. 825, 833 (1994) (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558, cert. denied, 488 U.S. 823 (1988)). In Farmer, the Supreme Court made it clear that "[b]eing violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society." Farmer, 511 U.S. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). "It is not, however, every injury suffered by one prisoner at the hands of another that translates into constitutional liability for prison officials responsible for the victim's safety." Id.

As will be discussed in greater detail below, the case law has not yet developed fully to define the content of the standard of protection owed a pretrial detainee such as plaintiff. However, it is clear that the due process clause of the Fourteenth Amendment provides protections "at least as great as the Eighth Amendment protections available to a convicted prisoner."Cily of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244-45 (1983).[4] Nonetheless, the well-developed case law under the Eighth Amendment provides a framework for the required analysis. For an inmate to establish an Eighth Amendment violation against a prison official, two requirements must be met: (1) the deprivation alleged must have been sufficiently serious, and (2) the official must have had a sufficiently culpable state of mind. See Farmer, 511 U.S. at 834. Judged under even the most lenient standard, see discussion infra, plaintiffs pleadings fail to state a due process violation giving rise to liability.

A. Sufficiently Serious Deprivation

*3 The first prong of the inquiry requires that the alleged deprivation must be sufficiently serious to establish an injury of a constitutional magnitude. In this connection, "[f]or a claim... based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm." Id. at 1977 (citing Helling v. McKinney, 509 U.S. 25, (1993)). The Court in Farmer explicitly refused to address at what point a risk of inmate assault rises to the level of a constitutional deprivation. Id. at 1977 n.3.

Certainly, the "pervasive risk of harm" requirement is met when prison guards simply stand by and permit an attack on an inmate by another inmate to proceed. Davidson v. Cannon, 474 U.S. 344, 348 (1986); accord Morales v. DOC, 842 F.2d. 27, 30 (2d Cir.1988). However, plaintiff pleads no such indifference on defendant officers' part. Indeed, he specifically alleges that defendants dragged him out of harm's way, yelled at Inmate Flores to cease his assault and stopped the attack.

The "pervasive risk of harm" requirement may also be satisfied where there is prior hostility between inmates, or a prior assault by one inmate on another, and those inmates are not kept out of contact from one another. See, e.g., Villante v. DOC, 786 F.2d 516, 523 (2d Cir.1986) (prisoner should be afforded the chance to prove that prison official knew of a pervasive risk of harm due to his complaints about sexual assault prior to the incident giving rise to the cause of action); Bass v. Jackson, 790 F.2d 260, 261 (2d Cir.1986) (prison officials' failure to separate inmates whom they knew had a growing feud was sufficient to constitute deliberate indifference when a prisoner was injured in the subsequent violence); Ayers v. Coughlin, 780 F.2d 205, 209 (2d Cir.1985) (prisoner states claim for deliberate indifference to pervasive risk of harm by alleging that prison official knew that inmate who poured boiling water on plaintiff had previously issued death threats to plaintiff); Morales v. DOC, 842 F.2d 27, 30 (2d Cir.1983) (defendant's alleged knowledge of an inmate's previous attack on plaintiff before plaintiff was assaulted in his sleep was sufficient to reinstate action against defendant).

The present case appears distinguishable from the cases mentioned above because plaintiff does not allege any incidents of assault or a continuing pattern of threatening behavior. However, plaintiff does allege that he "protested having to carry feed-up trays to the [Special Housing Unit] inmates because of threats by them."Because this Court can imagine facts supporting this statement that would also be sufficient to establish a "pervasive risk of harm, " we assume plaintiff has met the first prong for the purposes of this motion.

B. Culpable State of Mind

The second prong of the inquiry examines whether a defendant had a sufficiently culpable state of mind. Although neither the Second Circuit nor the Supreme Court has precisely defined the standard by which jailers' duty to protect preconviction detainees from other prisoners should be judged, it is clear that plaintiffs complaint fails under even the most lenient standard. In reviewing the closely analogous question of whether a prisoner's inadequate medical care violated the Fourteenth Amendment, [5] the Second Circuit held that "while the Due Process standard has not yet been precisely articulated, it is clear that Plaintiff must demonstrate more than simple negligence." ' Arac v. Bodek, 213 F.3d 625 (2d Cir.2000) ( citing Bryant v. Maffucci, 923 F.2d 979, 984 (2d Cir.1991)). Although in dicta it has gone further and suggested that the Eighth Amendment's "deliberate indifference" standard should be applied, see Arroyo v. Schaefer, 548 F.2d 47 (2d Cir.1977) ("While the Eighth Amendment may not, strictly speaking, be applicable to pretrial detainees, as Judge Friendly noted in Johnson v. Glick [citation omitted], due process requires no more in this [medical indifference] context.") (emphasis added), it has repeatedly passed on opportunities to establish a standard.[6] See Arac, 213 F.3d at 625; Bryant, 923 F.2d at 983-984. In the absence of Second Circuit guidance, lower courts have disagreed about what standard is appropriate.[7] However, it is unnecessary for us to determine the appropriate standard because plaintiffs claims fail to clear even the lowest bar.

*4 Plaintiff has failed to plead that defendants acted with "more than simple negligence." Indeed, plaintiff specifically pled that defendants acted "neglegently [sic]." This defect cannot be cured through re-pleading because the specific facts alleged simply do not support a finding of more than negligence. According to plaintiffs complaint, C.O. Burton escorted him through his rounds, securing the cell of each inmate plaintiff served. As soon as Inmate Flores (who was usually bound to a wheelchair) assaulted plaintiff, several correction officers pulled plaintiff to safety and apprehended Flores. Immediately thereafter, they took him to the infirmary for medical treatment. Plaintiff alleges no facts suggesting that the defendant officers exercised recklessness, gross negligence or deliberate indifference in failing to protect plaintiff from other inmates. Plaintiffs job involved risk insofar as any interaction with prison inmates inherently involves risk, but there is no indication that plaintiffs situation was obviously more dangerous than that of any other working prisoner.

Therefore, viewed in the light most favorable to plaintiff, we find that no facts could exist underlying plaintiffs allegations that would establish defendant officers acted with "more than simple negligence." Accordingly, plaintiffs claims against defendant officers are dismissed with prejudice. Because any liability for Warden Serra would be derivative of the defendant officers' liability, plaintiffs claims against Warden Serra are similarly dismissed.

IV. Claims Against Inmate Flores

Plaintiff names Inmate Flores as a defendant in this suit. However, Flores cannot be sued under § 1983 because he was in no way a state actor. Plaintiffs potential claims against Flores lie in state tort action. Accordingly, plaintiffs federal claims against Flores are dismissed with prejudice.

CONCLUSION

For the reasons stated above, plaintiffs claims against all defendants are hereby dismissed with prejudice.[8]

IT IS SO ORDERED.

Attorneys and Law Firms

Kenneth Carl Groves, Sr., Marcy, NY, pro se.

Hon. Eric T. Schneiderman, Attorney General for the State of New York, Colleen D. Galligan, Esq., Assistant Attorney General, of Counsel, Albany, N.Y. for Defendants Sill and Nicolette.

Hon. Mark Curley, Corporation Counsel for the City of Utica, Armond J. Festine Assistant Corporation Counsel, of Counsel, Utica, NY, for Defendant Davis.

DECISION and ORDER

GLENN T. SUDDABY, District Judge.

*1 Currently before the Court, in this pro se prisoner civil rights action filed by Kenneth Carl Groves, Sr. ("Plaintiff') against the three above-captioned individuals ("Defendants"), is United States Magistrate Randolph F. Treece's Report-Recommendation recommending that Defendant Davis' motion for summary judgment be denied, and that Defendant Sill and Nicolette's motion for summary judgement be denied. (Dkt. No. 72.) Defendant Davis has filed no Objection to the Report-Recommendation, and the deadline by which to do so has expired. ( See generally Docket Sheet.) Defendant Sill and Nicollette have filed an Objection, in which they argue that Magistrate Judge Treece's recommendation regarding their motion should be rejected because that recommendation is based solely on hearsay, specifically, Paragraph 5(c) of the affidavit of Plaintiffs fellow inmate, Floyd Yelle. (Dkt. No. 75.)

When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). When no objection is made to a portion of a report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a "clear error" review, "the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) ("I am permitted to adopt those sections of [a magistrate judge's] report to which no specific objection is made, so long as those sections are not facially erroneous.") (internal quotation marks and citations omitted).

Based upon a careful review of this matter, the Court can find no clear error with Magistrate Judge Treece's Report-Recommendation regarding Defendant Davis' motion for summary judgment. (Dkt. No. 72.) Nor can the Court find any error whatsoever with Magistrate Judge Treece's Report-Recommendation regarding Defendant Sill and Nicollette's motion for summary judgment. ( Id. ) Magistrate Judge Treece employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. ( Id. ) As a result, the ReportRecommendation is accepted and adopted in its entirety for the reasons stated therein.

The Court would add only three points. First, while Paragraph 5(c) of the affidavit of Floyd Yelle does contain a piece of inadmissible hearsay (i.e., the statement by non-party Kenneth Williams "That's what we'll do [, ] Brett"), it contains a statement by a party opponent under Fed.R.Evid. 801(d)(2) (i.e., Defendant Davis' statement "Yah, he'll get his !"), as well as a statement that either is not offered for the truth of the matter asserted or is a verbal act under Fed.R.Evid. 801(c)(2) (i.e., the repeated mention of Grove's name).

*2 Second, and perhaps more importantly, Paragraph 5(c) was not the only portion of Yelle's affidavit relied on by Magistrate Judge Treece. Magistrate Judge Treece also relied on the fact that Paragraphs 2(c), 2(d), 3, 3(a) and 3(c) of the affidavit stated that, approximately 20 minutes before the above-referenced statements occurred, Defendant Nicollete came out of nurses' station as Defendant Davis was yelling at Plaintiff (as a result of Plaintiffs saying something derogatory about him). (Dkt. No. 72, at 19.) Moreover, Magistrate Judge Treece relied on the fact that Paragraphs 6(f) and 6(h) of the affidavit stated that, less than two hours before the alleged assault, Defendant Nicollete heard Defendant Davis threaten Plaintiff. ( Id. at 19-20.) Furthermore, Magistrate Judge Treece relied on the fact that Paragraph 10(a) of the affidavit stated that one of the first employees to come to Defendant Davis' assistance (during the incident with Plaintiff) was Defendant Nicollette. ( Id. at 20.)

Third, and finally, because of the record evidence also establishing that Defendant Sill held Plaintiffs legs during the alleged assault, a rational fact finder could conclude that Defendant Sill was personally involved in a malicious and sadistic attack on Plaintiff for the very purpose of inflicting harm. ( See, e.g., Dkt. No. 1, at page "VIII" [Plf.'s Verified Compl.]; Dkt. No. 55, Attach. 1, at ¶¶ 24-31 [Defs.' Rule 7.1 Statement].)

For all of these reasons, the Court must reject Defendant Sill and Nicollette's Objection.

ACCORDINGLY, it is

ORDERED that Magistrate Juge Treece's Report-Recommendation (Dkt. No. 72) is ACCEPTED and ADOPTED in its entirety; and it is further

ORDERED that Defendant Davis' motion for summary judgment (Dkt. No. 52) is DENIED; and it is further

ORDERED that Defendants Sill and Nicolette's motion for summary judgement (Dkt. No. 55) is DENIED; and it is further

ORDERED that Pro Bono Counsel be appointed for the Plaintiff for purposes of trial only; any appeal shall remain the responsibility of the plaintiff alone unless a motion for appointment of counsel for an appeal is granted; and it is further

ORDERED that upon assignment of Pro Bono Counsel, a final pretrial conference with counsel will be scheduled in this action, at which time the Court will schedule a jury trial on Plaintiffs Eighth Amendment claims of excessive force against Defendants Davis and Sill, plaintiffs supervisory liability/failure to protect claims against Defendant Nicollete and Plaintiffs deliberate indifference claims against Defendant Sill and Nicolette. Counsel are directed to appear at the final pretrial conference with settlement authority from the parties.

REPORT - RECOMMENDATION and ORDER

Hon. RANDOLPH F. TREECE, United States Magistrate Judge.

Pro se Plaintiff Kenneth Carl Groves, Sr., brings this Complaint, pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights under the Fourth and Fourteenth Amendments by conspiring to physically assault him, physically assaulting him, and/or failing to protect him from physical assault while he was a resident at the Central New York Psychiatric Center ("CNYPC") in Marcy, New York. See generally Dkt. No. 1, Compl. Now before this Court are two separate Motions for Summary Judgment. See generally Dkt. Nos. 52, Defs.' Mot. for Sum. J. (hereinafter "Davis Mot."), & 55, Mot. for Sum. J. (hereinafter "Sill & Nicolette Mot."). Plaintiff opposes the Motions. Dkt. Nos. 59-1, Pl.'s Mem. of Law, & 60, Pl.'s Exs.[1] Also before this Court is Plaintiffs Motion to Amend/Supplement his Complaint, Dkt. No. 62, and Motion to proceed In forma Pauperis ("IFP"), Dkt. No. 63. All three Defendants oppose Plaintiffs Motion to Amend. Dkt. Nos. 65, Def.'s Opp'n (hereinafter "Davis Opp'n"), & 66 Defs.' Opp'n (hereinafter "Sill & Nicolette Opp'n"). For the reasons that follow, it is RECOMMENDED that both Motions for Summary Judgment be DENIED, and it is ORDERED that Plaintiffs Motion to Amend and Motion to Proceed IFP be DENIED.

I. BACKGROUND

*3 Plaintiff has been a civilly committed resident of the CNYPC in Marcy, New York, and a participant in its Sex Offender Treatment Program ("SOTP"), since June 18, 2008. Dkt. No. 59-2, Pl.'s Statement Pursuant to Rule 7.1(a)(3) (hereinafter "Pl.'s 7.1 Statement"), at ¶¶ 1-2; Dkt. No. 52-3, Def.'s Statement Pursuant to Rule 7.1(a)(3) (hereinafter "Davis 7.1 Statement"), at ¶¶ 1-2; Dkt. No. 55-1, Defs.' Statement Pursuant to Rule 7.1(a)(3) (hereinafter "Sill & Nicolette 7.1 Statement"), at ¶ 1. It is undisputed by all parties that, on August 8, 2011, a physical incident occurred involving Plaintiff and Defendants Brett Davis and David Sill, both secure care treatment aids ("SCTA") at CNYPC. See Sill & Nicolette Mot., Ex. C, Kenneth Carl Groves, Sr., Dep., dated Jan. 3, 2012 (hereinafter "Groves Dep."), at p. 35; Davis 7.1 Statement at ¶ 4; Sill & Nicolette 7.1 Statement at

¶ 6. It is further undisputed by the parties that following this incident Plaintiff was convicted of harassment in the second degree in Marcy Town Court. Sill & Nicolette Mot., Ex. A., Cert. of Conviction, dated August 19, 2013; Groves Dep. at pp. 26-28. Additionally, formal disciplinary charges were filed against Defendant Davis by his employer on November 21, 2011, which ultimately led to binding arbitration between CNYPC and Defendant Davis. Davis 7.1 Statement at ¶¶ 10 & 13; Davis Mot., Ex. 3, Arbitration Op. & Award, dated Mar. 1, 2013. Notwithstanding their agreement as to the foregoing, the parties' accounts materially differ with regard to the details of the relevant events.

A. Parties' Versions of Relevant Events

1. Plaintiffs Account

According to Plaintiffs Deposition testimony, the following occurred on August 8, 2011: At approximately 5:30 p.m., while walking from the dayroom to his own room with Mr. Yelle, a fellow CNYPC resident, Plaintiff stated that "[Defendant Davis is] always trying to intimidate people walking around with his chest puffed out." Groves Dep. at pp. 45-46. Defendant Davis overheard this comment and "came running up the ward... stopped [Plaintiff] in the hallway, got in [his] face and started yelling at [him], saying... that if [he] didn't watch [his] mouth, ... [he['d get [his] ass kicked." Id. at pp. 46-47. Plaintiff replied, "okay" or "you got it" and went to his room; there was no physical interaction between the parties at that time. Id. at pp. 47-48. Defendant Nicolette, a nurse at CNYPC, was standing outside of his door and observed the incident. Id. at p. 48.

Later that evening, at approximately 6:00 p.m., Plaintiff went to the yard for recreation with the rest of the residents in his ward; the residents were accompanied by Defendants Davis, Sill, and Nicolette. Id. at pp. 50-51. Plaintiff noticed that Defendants Davis, Sill, and Nicolette were "talking to each other at another table, [and] looking directly at [him]." Id. at pp. 51 & 69-70. Although Plaintiff acknowledges that he could not hear what was being discussed between the Defendants "[he] believe[s] - and [he] feel[s] that they were talking about the incident and what was going to happen." Id. at pp. 70-71.

*4 At about 8:00 p.m., after returning from the yard, Defendant Nicolette began distributing medications to the residents in the dayroom. Id. at p. 51. Plaintiff told Defendant Nicolette that he did not want Defendant Davis to pour his water, and Defendant Davis told Plaintiff that if he did not take his pills he would be cited for refusing to take his medication. Id. at pp. 51-52, & 55. Plaintiff took his medication (but not the water offered by Defendant Davis), and while returning to the dayroom, stated that "[he] wouldn't be in here forever." Id. at pp. 55-56. Plaintiff remained in the dayroom watching television until approximately 8:30, when he returned to his room. Id. at pp. 57-58.

At approximately 9:30 p.m., while Plaintiff was seated at his desk in his room, his "door fl[ew] open, " Plaintiff turned in his chair and saw Defendant Davis "flying across the room." Id. at pp. 63-64. Defendant Davis hit him in the right side of his temple with his left fist, knocking Plaintiff out of his chair and onto the bed, then Davis jumped on top of Plaintiff and started punching him in the face and the side of his head. Id. at p. 64. Defendant Davis continued punching Plaintiff and the two rolled onto the floor between the bed and the desk. Id. Defendant Davis was screaming "[g]et the bed! He beat me! Help! Help! He's hitting me!, " while holding Plaintiff in a headlock and continuing to beat the Plaintiff At this time, Defendant Sill[2] came in and grabbed Plaintiff by the ankles, holding him down - while Davis continued to punch Plaintiff - until other SCTAs entered the room. Id. at pp. 64-65; see also Dkt. No. 59-1, Pl.'s Mem. of Law at p. 1. Despite knowing that the incident would occur, Defendant Nicolette remained in the nurses office until after Defendant Sill called for further help. Groves Dep. at p. 72-73.

As a result of the altercation, Plaintiff suffered a black eye, a bruise under his right eye, redness on his temple and the side of his face, bloodshot eyes, and trouble seeing out of one eye; however his vision problems have now all but subsided. Id. at pp. 73-75; see also Compl., Exs. 1 & 2, Pictures.

2. Defendant Davis's Account

Defendant Davis acknowledges that a non-physical interaction occurred at 5:30 p.m. on August 8, 2011, however, he does not further elaborate as to the details of that interaction. Davis 7.1 Statement at ¶ 4. Davis also acknowledges that a physical altercation occurred between himself and Plaintiff at approximately 9:00 p.m. the same day, and that during that altercation, "Plaintiff was taken down to the floor and sustained bruises to his face." Id. at ¶¶ 6 & 7. However, Davis's account materially differs from that of the Plaintiff in that he asserts that the altercation began when "Plaintiff [ ] grabb[ed] [his] shirt as he walked by the [Plaintiffs] room entrance, and pull[ed] him toward the inside of the room. "Id. at ¶ 6. That is when he took Plaintiff down to the ground and called for help. Id. at ¶ 7. The first person to respond was Defendant Sill, who assisted Davis in restraining Plaintiff until additional staff responded to the scene. Id.

3. Account of Defendants Sill & Nicolette

*5 Defendants Sill and Nicolette also acknowledge that an altercation between Defendant Davis and Plaintiff occurred at approximately 9:30 p.m. on August 8, 2011, and that prior to that event "Plaintiff had several interactions with CNYPC staff. "Sill & Nicolette 7.1 Statement at ¶ 6. During the 5:30 interaction, "Plaintiff made some unkind remarks about Defendant Davis.... Defendant Davis overheard these remarks and words were exchanged.... [However, ] [n] either Defendant Sill nor Defendant Nicolette were involved in the 5:30 exchange." Id. at ¶ 7. Defendants Sill and Nicolette further acknowledge that they were in the yard with Defendant Davis and Plaintiff between 5:45 and 7:45 p.m. that evening, and that although they were "speaking to one another and looking in Plaintiffs direction, Plaintiff did not hear, and does not know what Defendants were saying." Id. at ¶ 8. They further acknowledge that, while Nurse Nicolette was distributing medication after recreation, "[w]ords were exchanged between Plaintiff and Defendant Davis." Id. at ¶¶ 11-14.

As for the altercation which occurred around 9:30 p.m., Defendants Sill and Nicolette maintain that while Plaintiff was in his room, Defendant Davis was walking the dormitory hallway doing a check of the dorm rooms. Id. at ¶¶ 16-17. Defendant Sill was sitting near the nurses' station at the opposite end of the hallway from Plaintiffs dorm room watching Defendant Davis as he checked the residents' rooms. Id. at ¶¶ 18-19. It looked to Defendant Sill like "[Plaintiff] was either poking or grabbing [Defendant Davis] and the next thing [he] kn[e]w, Mr. Davis was in [Plaintiffs] room." Id. at 41120. Defendant Sill could not see what was happening in Plaintiffs dorm room, but, at the point that Davis disappeared from his view, he ran down the hallway, yelled for another SCTA who was in the dayroom, and dropped a "red phone"[3] as he continued down the hallway to Plaintiffs room. Id. 21-22. When he arrived at the room he saw "Mr. Davis and [Plaintiff] on the floor between the bed and the desk. They were laying on the left side. Mr. Davis had [Plaintiff] in a wrap, ... [and Defendant Sill] immediately grabbed Plaintiffs legs and waited for help." Id. at ¶¶ 23-24. "Plaintiff struggled a little bit but was generally under control. Id. at ¶ 25.

II. SUMMARY JUDGMENT

A. Standard of Review

Pursuant to FED. R. CIV. P. 56(a), summary judgment is appropriate only where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."The moving party bears the burden to demonstrate through "pleadings, depositions, answers to interrogatories, and admissions on file, together with [] affidavits, if any, " that there is no genuine issue of material fact. F.D.I. C. v. Giammettei, 34 F.3d 51, 54 (2d Cir.1994) (quoting Celotex Corp. v. Cafrett, 477 U.S. 317, 323 (1986))."When a party has moved for summary judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure 56(e) ] and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir.1992).

*6 To defeat a motion for summary judgment, the non-movant must set out specific facts showing that there is a genuine issue for trial, and cannot rest merely on allegations or denials of the facts submitted by the movant. FED. R. CIV. P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.2003) ("Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case."); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.1994). To that end, sworn statements are "more than mere conclusory allegations subject to disregard... they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion" and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995)).

When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir.1998)."[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir.1994). Furthermore, where a party is proceeding pro se, the court must "read [his or her] supporting papers liberally, and... interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994), accord, Soto v. Walker, 44 F.3d 169, 173 (2d Cir.1995). Nonetheless, mere conclusory allegations, unsupported by the record, are insufficient to defeat a motion for summary judgment. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991).

B. Defendant Davis's Motion for Summary Judgment

Plaintiffs sole claim against Defendant Davis is that he used excessive force during the physical altercation that occurred on August 8, 2011. See Dkt. No. 7, Am. Mem. Decision & Order, dated Mar. 2, 2012; see also Compl. at p. VIII. Defendant Davis argues that findings of fact made by the Marcy Town Court in Plaintiffs criminal harassment trial and/or those of the arbitrator in Defendant's employment arbitration proceeding are entitled to preclusive effect in the instant action and obviate any genuine issue of material fact with respect to Plaintiffs excessive force claim. In the alternative, Davis argues that the force he used against Plaintiff was not excessive, and that he is entitled to qualified immunity. See generally Dkt. No. 52-8, Davis Mem. of Law. For the reasons that follow, we find that neither the factual findings of the arbitrator nor those of the criminal court are entitled to preclusive effect in the instant litigation, Plaintiff has established the existence of a genuine issue of material fact with regard to his excessive force claim, and Defendant Davis is not entitled to qualified immunity.

1. Collateral Estoppel

*7 It is "clear that issues actually litigated in a state-court proceeding are entitled to the same preclusive effect in a subsequent federal § 1983 suit as they enjoy in the courts of the State where the judgment was rendered. " Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 83 (1984). Federal courts look to the law of the state in which the underlying decision was issued to determine "what preclusive effect the prior judgment" might have upon the current case. Giakoumelos v. Coughlin, 88 F.3d 56, 59 (2d Cir.1996). Here, the prior judgmentsm[4] were rendered in New York, and, "[u]nder New York law, the doctrine of collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same. " Burgos v. Hopkins, 14 F.3d 787, 792 (2d Cir.1994) (quoting Ryan v. New York Tel. Co., 62 N.Y.2d 494, 478 (1984) (internal quotations omitted)).

For a previously litigated issue to have a preclusive effect in future litigation it must meet two requirements: "(1) [t]here must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and (2) there must have been a full and fair opportunity to contest the decision now said to be controlling." Id. (citing Schwartz v. Public Admir of Bronx, 24 N.Y.2d 65, 71 (1969) (internal quotations omitted)). Initially, the burden falls on the moving party to establish the "identity of the issues, " then the burden shifts to the challenging party to establish that "he or she did not have a full and fair opportunity to adjudicate the claims involving those issues." Khandhar v. Elfenbein, 943 F.2d 244, 247-48 (2d Cir.1991) (citing Kaufman v. Eli Lilly and Co., 65 N.Y.2d 449, 456 (1985)).

a. Arbitration Opinion & Award

Defendant Davis argues that pursuant to University of Tennessee v. Elliot, 478 U.S. 788 (1986), and Burkybile v. Bd. of Educ. of the Hastings-on-Hudson Union Free Sch. Dist., 411 F.3d 306 (2d. Cir.2005), an employmer disciplinary arbitration is a "quasi-judicial administrative action" and, that therefore, the arbitrator's opinion and award is entitled to preclusive effect. See Dkt. No. 52-8, Davis Mem. of L. at pp. 2-7. However, we need not, and do not, determine whether such is the case. Indeed, even if the arbitration opinion and award is the equivalent of a state court judgment for purposes of collateral estoppel/issue preclusion, it would still not be entitled to preclusive effect in the instant case.

While Plaintiff may have testified at the hearing, see Davis Mot., Ex. 3, Arbitration Op. & Award at p. 5, he was neither represented by counsel nor a party to the arbitration. Therefore, Plaintiff did not have a "full and fair opportunity" to litigate the issues Defendant now urges this Court to preclude in the instant action. Burgos v. Hopkins, 14 F.3d at 792; see also Burkybile v. Bd. of Educ. of Hastings-On-Hudson Union Free Sch. Dist., 411 F.3d at 312 (finding that even where a quasi-judicial school district's employee disciplinary arbitration award was being considered for purposes of collateral estoppel/issue preclusion, the party being precluded must have had an adequate opportunity to litigate the issue(s)).

*8 Accordingly, we recommend that Defendant Davis's Motion be DENIED in this regard.

b. Criminal Trial

As a result of the physical altercation which occurred between Plaintiff and Defendants Davis and Sill on August 8, 2011, Plaintiff was convicted of harassment in the second degree. Sill & Nicolette Mot., Ex. A., Cert. of Conviction; Groves Dep. at pp. 26-28.

The Second Circuit has held that "[A] claim of excessive force would not be precluded by the plaintiffs prior convictions for resisting arrest and harassment unless facts actually determined in his criminal conviction that were necessary to the judgment of conviction are incompatible with the claim of excessive force being raised in the subsequent civil suit." Sullivan v. Gagnier, 225 F.3d 161, 166 (2d Cir.2000) ( per curiam ). However, in the instant case, Defendant Davis has utterly failed to meet his burden of establishing the similarity of the issues. Id. at 166 ("The burden of proof with respect to whether an issue is identical to one that was raised and necessarily decided in the prior action rests squarely on the party moving for preclusion.") (citation omitted).

Indeed, other than a passing reference to the criminal trial in his Memorandum of Law, he provided only a copy of the certificate of conviction in his papers. See generally Davis Mem. of Law, & Davis Mot., Ex. 4, Cert. of Conviction, dated Aug. 19, 2013. Although it is undisputed that Plaintiff was convicted of second degree harassment, Davis Mot., Ex. 4, Cert. of Conviction; Groves Dep. at pp. 26-27, it is also possible that Plaintiffs conviction was based on the trial court's conclusion that Plaintiff merely threatened or attempted to make physical contact with Defendant Davis, [5] see N.Y. PENAL L. § 246.26(1) (a person is guilty of second degree harassment if "with intent to harass, annoy or alarm another person... [h]e or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same." ) (emphasis added).

It is impossible to tell from the certificate of conviction alone what findings of fact were made by the trial court, and more importantly, how such findings would affect the instant litigation. See Sullivan v. Gagnier, 225 F.3d at 166 (faced with a similarly sparse record of the underlying criminal proceedings, [6] the Sullivan Court stated that "[t]he doctrine of collateral estoppel requires a detailed examination of the record in the prior state criminal case, including the pleadings, the evidence submitted and the jury instructions, in order to determine what issues were actually litigated and necessary to support a final judgment on the merits").

Accordingly, we recommend that Defendant Davis's Motion be DENIED in this regard.

2. Excessive Force

Claims of excessive force brought by civilly committed persons are adjudged under the Due Process Clause of the Fourteenth Amendment rather than the Eighth Amendment's prohibition against cruel and unusual punishment; nonetheless, the same standard is used to evaluate both types of claims. See Youngburg v. Romeo, 457 U.S. 307 (1982); see also Johnson v. City of New York, 2011 WL 1044852, at *3 (S.D.N.Y. Mar. 18, 2011) (citing cases for the proposition that excessive force claims under the Fourteenth Amendment are evaluated under the same standard as those brought under the Eighth Amendment).

*9 The Eighth Amendment prohibits the infliction of cruel and unusual punishment and is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 666-67 (cited in Tramell v. Keane, 338 F.3d 155, 161 (2d Cir.2003)). In Hudson v. McMillian, 503 U.S. 1 (1992), the Supreme Court clarified the standards for determining whether an Eighth Amendment violation occurred in the context of excessive force. Specifically, the Court stated that, "whenever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is that set out in Whitley [v. Albers, 475 U.S. 312 (1986) ]: whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm."503 U.S. at 6-7 (quoted in Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir.1994)). To validly assert a violation of the Eighth Amendment through the use of excessive force, an inmate must prove two components: (1) objectively, that the defendant's actions violated "contemporary standards of decency, " and (2) subjectively, that the defendant acted wantonly and in bad faith. Blyden v. Mancusi, 186 F.3d 252, 262-63 (2d Cir.1999) (internal quotation marks and citations omitted).

Regarding the objective element, we note initially that "a de minimis use of force will rarely suffice to state a constitutional claimll " Romano v. Howarth, 998 F.2d 101, 105 (2d Cir.1993). In that respect, "[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights." Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973) (quoted in Hudson v. McMillian, 503 U.S. at 10). However, the malicious use of force to cause harm constitutes an Eighth Amendment violation per se because in such instances "contemporary standards of decency always are violated. " Blyden v. Mancusi, 186 F.3d at 263 (citing Hudson v. McMillian, 503 U.S. at 9). For example, "when a prison guard applies force against a prisoner that poses no reasonable threat simply because the guard loses his or her temper and wishes to wantonly inflict pain on the prisoner, a per se violation of the Eighth Amendment occurs. " Beckford v. Portuondo, 151 F.Supp.2d 204, 216 (N.D.N.Y.2001) (citation omitted).

In assessing the objective component, the court should consider the seriousness of the injury, however, "the use of excessive physical force against a prisoner may constitute cruel and unusual punishment [even] when the inmate does not suffer serious injury;" thus, "the seriousness of the injury is relevant to the Eight Amendment inquiry, but does not end it." Davidson v. Flynn, 32 F.3d 27, 29-30 n. 1 (2d Cir.1994) (alterations in original) (quoting Hudson v. McMillian, 503 U.S. at 4).

With regard to the subjective component, a court should consider whether the defendant had a wanton state of mind when engaging in the alleged misconduct. To determine whether a defendant acted wantonly or maliciously, several factors should be examined, including

*10 the extent of the injury and the mental state of the defendant, as well as the need for the application of force; the correlation between that need and the amount of force used; the threat reasonably perceived by the defendants; and any efforts made by defendants to temper the severity of a forceful response.

Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir.2003) (internal quotation marks and citations omitted); see also Hudson v. McMillian, 503 U.S. at 7).

In the instant case, Plaintiff suffered significant bruising to the left side of his face. Compl., Exs. 1 & 2, Pictures. In addition, Plaintiff suffered a "subconjunctival hemorrhage [ ] a bright red patch on the white of the eye.... [caused by] [b]lood leaking from a broken blood vessel in the eye... [the] injury is not serious and usually disappears without treatment within 2 to 3 weeks without treatment."Dkt. No. 60-1, Pl.'s Exs. at p. 44, [7] Discharge Instructions, dated Oct. 1, 2011. Within the Second Circuit, such injuries are typically considered de minimus for purposes of the Eighth Amendment. See Tafari v. McCarthy, 714 F.Supp.2d 317, 352 (N.D.N.Y.2010) (surveying cases). However, this is only one factor to be considered; even if Plaintiffs injuries are merely de minimus it is still possible that the force used by Defendant Davis was excessive.

Plaintiff alleges that he was seated in his chair when Defendant Davis came flying into his room and punched him in the face, knocking him out of his chair, and that he continued pummeling him as they fell to the floor. Groves Dep. at pp. 63-64. If true, such an unnecessary and unprovoked use of force would be per se excessive, because such malicious and sadistic behavior "always violates contemporary standards of decency. "See Blyden v. Mancusi, 186 F.3d at 262-63. Contrariwise, it is also possible that a reasonable juror accepting Defendant Davis's construction of the facts - that Plaintiff started the incident by grabbing his shirt and pulling him into his room requiring Defendant Davis to take Plaintiff down to the ground - could conclude that Davis's actions were nothing more than a good faith effort to maintain order which resulted in mere de minimus injuries. However, decisions as to whether Defendant Davis's account is more credible than that of the Plaintiff require the type of credibility assessment which can only be made by a jury or other finder of fact. See Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir.1998); see also Scott v. Coughlin, 344 F.3d at 289.

Accordingly, because there is a genuine issue of material fact with regard to Plaintiffs excessive force claim against Defendant Davis, we recommend that the Defendant Davis's Motion for Summary Judgment be DENIED.

3. Qualified Immunity

Qualified immunity is an affirmative defense that must be raised and proven by those seeking it's protection. Vincent v. Yelich, 718 F.3d 157, 166 (2d Cir.2013) (citing Gomez v. Toledo, 446 U.S. 635, 640 (1980), Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982), & Sudler City of New York, 689 F.3d 159, 174 (2d Cir.2012)). Qualified immunity shields public officials from being sued for conduct undertaken in the course of their duties so long as that conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. at 818; Eng v. Coughlin, 858 F.2d 889, 895 (2d Cir.1988). The doctrine "provides ample protection to all but the plainly incompetent or those who knowingly violate the law[.] " Malley v. Briggs, 475 U.S. 335, 341 (1986)).

*11 In assessing qualified immunity, courts conduct "a twopart inquiry, exercising flexibility in deciding which question to address first. We ask whether the plaintiff has adduced facts sufficient to make out a violation of a constitutional right and whether the right at issue was clearly established at the time of defendant's alleged misconduct." See Vasquez v. Klie, 513 F.Appx. 85, 86 (2d Cir.2013) (internal citations and quotation marks omitted). To be clearly established "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). In determining whether an officials actions were reasonable in light of existing law, we do not consider "how courts or lawyers might have understood the state of the law at the time, " but rather whether it would have been clear to a reasonable official that his conduct was unlawful under the circumstances. Id. (citing Saucier v. Katz, 533 U.S. 194, 202 (2001)).

It is clear that civilly committed persons have a constitutionally protected right to be free from the use of excessive force. See Youngburg v. Romeo, 457 U.S. at 315-16. In the instant case it is unclear whether the force used by Defendant Davis was justified or necessary under the circumstances or merely a malicious and sadistic application of force intended solely for the purpose of harming Plaintiff. See supra Part II.B.2. Thus, it would be patently premature for this Court to conclude that, "no reasonable jury... could conclude that it was objectively unreasonable for [Defendant Davis] to believe that he was acting in a fashion that did not clearly violate an established federally protected right." See Lee v. Sandberg, 136 F.3d at 102; see also Tafari v. McCarthy, 714 F.Supp.2d at 353-54 (denying summary judgment on qualified immunity grounds where there was an outstanding question of material fact regarding the malicious intent of the defendant). Therefore, we recommend that Defendant Davis's Motion for Summary Judgment be DENIED as to qualified immunity.

C. Defendants Sill's and Nicolette's Motion for Summary Judgment

Plaintiff claims that Defendant Sill used excessive force against him on August 8, 2011, and that both Defendant Sill and Defendant Nicolette were aware of Defendant Davis's plan to attack Plaintiff, but were deliberately indifferent by failing to take any steps to prevent it from occurring. See generally Compl.; see also Dkt. No. 7, Am. Mem. Decision & Order, at pp. 8-9. Defendants Sill and Nicolette argue that the basis for Plaintiffs allegations - the notion that Defendant Sill and Nicolette had prior knowledge the attack would occur - lacks any factual support, that the amount of force used by Defendant Sill was not excessive, and that both Defendants are entitled to qualified immunity. See generally Dkt. No. 59-6, Defs.' Mem. of Law (hereinafter "Sill & Nicolette Mem. of Law"). As explained below, genuine issues of fact remain with regard to Plaintiffs claims against Defendants Sill and Nicolette, and therefore, we recommend that their Motion for Summary Judgment be DENIED.

1. Prior Knowledge of the Attack

*12 Plaintiff claims that while standing together in the recreation yard prior to evening medication distribution, Defendants Sill, Nicolette, and Davis discussed Davis's alleged plan to attack him. Groves Dep. at pp. 69-73. However, Plaintiff also freely acknowledges that he could not hear the substance of that conversation; but he claims that because they were looking at him and laughing, he "believed" that they were planning the attack at that time. Id. Defendants Sill and Nicolette adopt Plaintiffs claims that they congregated in the recreation yard with Defendant Davis on August 8. See Sill & Nicolette 7.1 Statement at ¶¶ 8-9 (adopting by reference Plaintiffs Deposition testimony). However, they argue that Plaintiffs self confessed ignorance as to the substance of their conversation establishes that Plaintiff cannot plausibly allege a cause of action for excessive force or failure to protect against either Defendant. Sill & Nicolette Mem. of Law at pp. 2-3. Yet, as demonstrated below, the sworn Affidavit of Floyd Yelle, a fellow resident at CNYPC, corroborates Plaintiffs suspicions and is sufficient, at this stage, to raise a genuine issues of material fact as to whether they were aware of Davis's alleged plan prior to the physical altercation.[8] See Scott v. Coughlin, 344 F.3d at 289.

In his Affidavit, Yelle avers that he was present in the yard with Plaintiff on August 8, that he was walking laps around the yard, and that as he did so he passed by Defendants Davis, Sill, Nicolette, and SCTA Kenneth Williams[9] who were talking with one another. Dkt. No. 59-3, Floyd Yelle Aff., dated Nov. 20, 2013, at pp. Yelle claims that he overheard bits and pieces of the group's conversation. Id. at p. III. Specifically, Yelle claims that he heard the group mention Plaintiffs name several times, SCTA Kenneth Williams say "[t]hat's what we'll do Brett[, ]" and Defendant Davis respond "[y]ah, he'll get his!" Id. Additionally, Yelle corroborated Plaintiffs account of the other interactions between Plaintiff and Defendant Davis which occurred on August 8, 2011.

According to Yelle, at about 5:25 p.m., he and Plaintiff were returning to their rooms from their evening meal, when Plaintiff made the comment that "[Defendant Davis] always struts around here with his chest puffed out attempting to intimidate and frighten the residents, but he ain't [sic] nothing." Id. at p. I. Yelle claims that Defendant Davis overheard the conversation and "came rushing over to where we were... stood in [Plaintiffs] face and began yelling, Groves, ... shut the fuck up or 111 beat the shit out of you. " Id. at p. II. Yelle further contends that Defendant Nicolette witnessed this interaction. Id.

Yelle also stated that around 7:45 p.m., he observed a second incident between Plaintiff and Defendants Davis and Nicollete. According to Yelle, Defendant Nicolette was distributing medication, and Defendant Davis was pouring cups of water for the residents. Although he took his medication, Plaintiff did not take a cup of water from Defendant Davis. As Plaintiff walked away from the medication cart, Defendant Davis shouted "[y]ou'll get yours soon rape-o! You'll get yours." Id. at pp. III-IV.

*13 Finally, Yelle claims that, at approximately 9:30 p.m., he witnessed Defendant Davis "quickly and quietly pass [his] room... [and saw Defendant Davis] fling open [Plaintiffs] room and rush inside yelling [g]ot your ass now!' then heard what sounded like a hand or fist hitting bare skin, then what sounded like a struggle and what sounded like furniture slamming on the floor.'" Id. at p. IV. Next, Yelle claims he witnessed an unidentified SCTA come down the hall, drop a red phone, and proceed into Plaintiffs room where Defendant Davis was yelling "[g]et the bed! Help! [H]elp! Get the Bed' over and over." Id. Yelle then saw several other unidentified SCTA's go to Plainitffs room, followed by Defendant Nicolette. Id. at p. V.

In short, Yelle's Affidavit provides admissible evidence in support of Plaintiffs account of the events of August 8, 2011. Given Yelle's averments, it would not be unreasonable for a juror crediting the accounts of Plaintiff and Yelle, to conclude that Defendant Nicolette witnessed Defendant Davis threaten Plaintiff on at least two occasions prior to the physical altercation at 9:30, and that while in the yard Defendants Sill and Nicolette were privy to a conversation in which Defendant Davis discussed his alleged plan to assault Plaintiff. In other words, Plaintiff has established the existence of a genuine issue of fact as to whether Defendants Sill and Nicolette knew of Davis's intent to assault Plaintiff. Moreover, as explained below, this issue is material to Plaintiffs claims against Defendants Sill and Nicolette.

2. Defendant Nicolette

Plaintiff alleges that Defendant Nicolette was personally involved in the actions of Defendant Davis by virtue of his supervisory position, and/or that he was aware Davis would attack Plaintiff and failed to protect him. Compl. at p. VIII; Dkt. No. 7, Am. Mem. Decicion & Order at pp. 8-9.

Plaintiff alleges that Defendant Nicolette was "a Registered Nurse and Ward Supervisor on [his] Ward."Compl. at pp. I-II. Defendants Sill and Nicolette do not contest Plaintiffs allegations that Defendant Nicolette was a ward supervisor. Furthermore, Plaintiff alleges that Defendant Nicolette remained in the nurses' office during the 9:30 p.m. attack despite the fact that he knew the attack would occur. Id. at pp. IV-V. Defendants Sill and Nicolette contend that Defendant Nicolette had no prior knowledge of the attack, and therefore, had no ability or duty to intervene. Sill & Nicolette Mem. of Law at pp. 5-6.

A prison inmate has a constitutional right under the Eighth and Fourteenth Amendments to be free from the "unnecessary and wanton infliction of pain." Hendricks v. Coughlin, 942 F.2d 109, 112 (2d Cir.1991) (citation omitted)." The Eighth Amendment requires prison officials to take reasonable measures to guarantee the safety of inmates in their custody." Hayes v. New York City Dep't of Corr., 84 F.3d 614, 620 (2d Cir.1996) (citing Farmer v. Brennan, 511 U.S. 825, 832-33 (1994)); Heisler v. Kralik, 981 F.Supp. 830, 837 (S.D.N.Y.1997) ("Prison officials have a constitutional duty to act reasonably to ensure a safe environment for a prisoner when they are aware that there is a significant risk of serious injury to that prisoner."); see also Avincola v. New York State Dep't of Corr. Servs., 1998 WL 146280, at *3 (N.D.N.Y. Mar. 27, 1998).

*14 In order to state such a claim, the prisoner must demonstrate that the prison officials "acted with deliberate indifference with respect to his safety or with an intent to cause harm to him." Hendricks v. Coughlin, 942 F.2d at 113. A showing of mere negligence on behalf of the defendants is not enough to state a constitutional claim. Whitley v. Albers, 475 U.S. 312, 319 (1986) (cited in Hendricks v. Coughlin, 942 F.2d at 113). The key element of a failure to protect claim is the existence or potential existence of a substantial risk of serious harm and not the actual harm which may or may not ensue. Farmer v. Brennan, 511 U.S. at 836. To prove deliberate indifference, the plaintiff must show that the "official [knew] of and disregard[ed] an excessive risk to inmate health or safety." Id. at 837 (cited in Ramirez v. Mantello, 1998 WL 146246, at *2 (N.D.N.Y. Mar. 24, 1998))."[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. (emphasis added).

Further, a supervisor can be held liable when he or she has actual or constructive notice of unconstitutional practices, but similarly acted with gross negligence or deliberate indifference in failing to act. See Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir.1989)." Such a supervisor may not escape the consequences of his or her failure to act by pleading the doctrine of qualified immunity." Fossett v. Morris, 1991 WL 67093, at *3 (S.D.N.Y. Apr. 22, 1991).

As noted above, whether Defendant Nicolette was aware of Defendant Davis's alleged plan to assault Plaintiff remains a genuine issue of material fact. Supra Part II.C.1. Furthermore, Defendants Sill and Nicolette have not challenged Plaintiffs claim that Defendant Nicolette was a ward supervisor. Accordingly, we cannot conclude that it would be unreasonable for a juror, crediting Plaintiffs version of events, to find that Defendant Nicolette knew of an impending risk to the health and safety of Plaintiff, was deliberately indifferent to that risk by not reporting Defendant Davis, and/or was personally involved in the incident by virtue of his knowledge that the attack would occur and his failure to intervene. See Bhuiyan v. Wright, 2009 WL 3123484, at *7 (N.D.N.Y. Sept. 29, 2009) ("An officer's failure to intervene during another officer's use of excessive force can itself constitute an Eighth Amendment violation unless the assault is "sudden and brief, " and the defendant had no real opportunity to prevent it."); Jeffreys v. Rossi, 275 F.Supp.2d 463, 474 (S.D.N.Y.2003) (holding that an officer may be personally involved in the use of excessive force if he either directly participates in the assault or if he was present during the assault, yet failed to intervene on behalf of the victim, even though the officer had a reasonable opportunity to do so).

*15 Accordingly, we recommend that Defendants Sill's and Nicolette's Motion for Summary Judgment be DENIED as to Plaintiffs supervisory liability/failure to protect claims against Defendant Nicolette.

3. Defendant Sill

Plaintiff claims that Defendant Sill acted with excessive force when he knowingly helped Defendant Davis carry out his plan to assault Plaintiff by diving on Plaintiffs legs while Defendant Davis continued to punch Plaintiff in the face. Compl. at p. VIII; Pl.'s Opp'n at p. I.

It is difficult to imagine how Sill's act of merely holding the Plaintiffs legs could amount to an excessive use of force, particularly in light of the fact that Plaintiff does not allege that he was injured in anyway by Defendant Sill. However, as noted above, a genuine issue of material fact exists with regard to whether Defendant Sill knew about the alleged attack before it occurred. See supra Part II.C.1. Accepting this allegation as true, as well as Plaintiffs further allegations that Defendant Davis was still punching Plaintiff in the head when Defendant Sill dove on his legs, it is possible that a reasonable juror could conclude that Defendant Sill was personally involved in a malicious and sadistic attack on Plaintiff for the very purpose of inflicting harm; a per se violation of the Eighth and Fourteenth Amendments. See supra Part II.B.2. And, while Defendant Sill's account - that he new nothing of the attack in advance, that he witnessed Plaintiff poking Defendant Davis and pulling him by his shirt into Plaintiffs room, that Defendant Davis had Plaintiff in a wrap when he arrived at Plaintiffs room (but was not punching Plaintiff), and that he responded only with the minimum amount of force necessary - if credited by a jury, might well absolve him of any culpability, the decision as to which competing version of events is more credible remains a task that can only be completed by a jury or other finder of fact.

Accordingly, we recommend that Defendants Sill's and Nicolette's Motion for Summary Judgment be DENIED as to Plaintiffs excessive force claim against Defendant Sill.

4. Qualified Immunity

Defendants Sill and Nicolette argue that they are entitled to qualified immunity. However, as a supervisor, Defendant Nicolette "may not escape the consequences of his... failure to act by pleading the doctrine of qualified immunity." Fossett v. Morris, 1991 WL 67093, at *3. Consequently, given that it remains a genuine issue of fact as to whether Defendant Nicolette knew of the impending attack, see supra Part II.C.2, to excuse Defendant Nicolette at this stage would be premature.

Similarly, given the existence of outstanding issues of material fact regarding whether Defendant Sill merely reacted to a cry for help by Defendant Davis, or knowingly participated in a per se violation of Plaintiffs constitutional right to be free from excessive force when he held down Plaintiffs legs, a finding that he is entitled to qualified immunity would likewise also be premature at this stage. See supra Part II.B.3; see also Tafari v. McCarthy, 714 F.Supp.2d at 353-54. Accordingly, we recommend that Defendants Sill's and Nicolette's Motion for Summary Judgment be DENIED.

III. MOTION TO AMEND

A. Standard of Review

*16 While some of the claims Plaintiff seeks to add arise out of the same facts and events as the claims in his initial Complaint and are therefore governed by FED. R. CIV. P. 15(a), the vast majority of the claims and allegations in Plaintiffs Proposed Amended/Supplemental Complaint arise out of events which Plaintiff claims transpired after the filing of his initial Complaint, and are therefore, more appropriately categorized as supplemental claims under FED. R. CIV. P. 15(d).

FED. R. CIV. P. 15(a) provides that "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served... Otherwise a party may amend the party's pleading by leave of the court... and leave shall be freely given when justice so requires." Whereas, FED. R. CIV. P.15(d) states:

On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim or defense. The court may order that the opposing party plead to the supplemental pleading within a specified time.

Although the two statutory provisions are similar, "[t]he function of FED.R.CIV.P. 15(a) is to permit a party to assert matters that were either overlooked or unknown at the time when the party's original complaint was prepared[ ] [whereas] [t]he function of FED.R.CIV.P. 15(d) is to enable the party to set forth in supplemental pleadings transactions or occurrences or events which have happened since the date of the original pleadings." Carter v. Artuz, 1998 WL 782022, at *2 (S.D.N.Y. Nov. 6, 1998) (citations omitted); Albrecht v. Long Island Rail Road, 134 F.R.D. 40, 41 (E.D.N.Y.1991); see also McLean v. Scully, 1991 WL 274327, at *1 (S.D.N.Y. Dec. 9, 1991) (the supplemental pleading should be "adequately related to the originally stated claims"). The standard for a motion to supplement is the same as for a motion to amend the pleadings under Rule 15(a). Klos v. Haskell, 835 F.Supp. 710, 715 (W.D.N.Y.1993).

Generally, the court has discretion over whether or not to grant leave to amend a pleading. Foman v. Davis, 371 U.S. at 182; Quentin Group LLC. v. Interlink Prod. Intl, Inc., 1997 WL 313156, at *2 (S.D.N.Y. June 9, 1997) (citing Quarantino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir.1995)). In deciding whether to exercise its discretion, the court must examine whether there has been undue delay, bad faith, or dilatory motive on the part of the moving party. Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 46 (2d Cir.1983) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). The court must also examine whether there will be prejudice to the opposing party. Kovian v. Fulton Cnty. Nat'l Bank, 1992 WL 106814 (N.D.N.Y. May 13, 1992). As noted by the Supreme Court:

*17 In the absence of any apparent or declared reason - such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. - the leave sought should... be "freely given."

Foman v. Davis, 371 U.S. at 182.

Where futility is the basis in opposing a motion to amend, the appropriate review standard is a motion to dismiss pursuant to Rule 12(b)(6). On a motion to dismiss, the allegations of the complaint must be accepted as true. See Cruz v. Beto, 405 U.S. 319, 322 (1972). Nevertheless, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added). In that respect, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Iqbal at 678 (citation omitted). Thus, in spite of the deference the court is bound to give to the plaintiffs allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts [which he or she] has not alleged or that the defendants have violated the... laws in ways that have not been alleged." Assoc. Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).

Moreover, while Rule 15 of the Federal Rules of Civil Procedure generally governs the amendment of complaints, in the case of proposed amendments where new defendants are to be added, the Court must also look to Rules 20 and 21 Ward v. LeClaire, 2008 WL 182206, at *3 (N.D.N.Y. Sept. 26, 2007) (citing United States v. Chilstead Building Co., No. 96-CV-0641 (N.D.N.Y. Nov. 7, 1997) (citations omitted)). Rule 21 states that a party may be added to an action "at any time [and] on just terms." FED. R. CIV. P. 21.[10] Rule 21 is "intended to permit the bringing in of a person, who through inadvertence, mistake or for some other reason, had not been made a party and whose presence as a party is later found necessary or desirable." Goston v. Potter, 2010 WL 4774238, at *5 (N.D.N.Y. Sept. 21, 2010) (quoting United States v. Commercial Bank of North America, 31 F.R.D. 133, 135 (S.D.N.Y.1962) (internal quotations marks omitted)). The addition of parties under Rule 21 is guided by the same liberal standard as a motion to amend under Rule 15. See Ward v. LeClaire, 2008 WL 182206, at *3; Varela v. Cnty of Rensselaer, 2012 WL 1355212, at *7 (N.D.N.Y. Apr. 18, 2012) (quoting Fair Housing Dev. Fund Corp. v. Burke, 55 F.R.D. 414, 419 (E.D.N.Y.1972)).

B. Discussion

By his Motion to Amend, Plaintiff seeks to supplement his Complaint by adding a swath of new claims involving a host of new defendants, based primarily on events which occurred after he filed his initial complaint - specifically, that he was the victim of a massive conspiracy to coverup the alleged August 8, 2011 assault. See Proposed Am. Compl. at ¶¶ 119 & 123. In addition Plaintiff attempts to resurrect claims which were already determined by this Court to be untimely and futile when he first attempted to amend his Complaint on June 11, 2013 - namely, that SCTA Kenneth Williams knew of Davis's alleged plan to assault Plaintiff and failed to protect him. Dkt. No. 47, Decision and Order, dated July 23, 2013. Defendants argue, in separate Memorandums of Law, that Plaintiffs proposed amendments are untimely, prejudicial, and futile. See generally Dkt. Nos. 65 & 66. As explained below, the proposed amendments are untimely, and therefore, Plaintiffs Motion to Amend is DENIED.

*18 With regard to Plaintiffs attempt to resubmitt his claim against Kenneth Williams, the Court notes that Plaintiff already proposed a nearly identical request to add Williams as a defendant On June 11, 2013. Dkt. No. 43, Pl.'s Mot. to Amend. This Court denied that request on July 23, 2013. In our Decision and Order, we noted, inter alia, that allowing Plaintiff to add another claim and defendant would have been unjustifiably prejudicial to the Defendants given the Court's refusal to extend or re-open, what was at that time, the rapidly impending discovery deadline of August 19, 2013, and/or the dispositive motion deadline of September 19, 2013. Dkt. No. 47, Dec. & Ord., dated July 23, 2013, at pp. 6-7. Plaintiffs present attempt to resurrect his claims against Kenneth Williams is only all the more untimely and potentially prejudicial to Defendants in light of the fact that both deadlines have now long since expired. Therefore, Plaintiffs Motion is DENIED with regard to his claims against Defendant Williams.[11]

In addition to his claims against Kenneth Williams, Plaintiffs Proposed Amended Pleading also alleges that:

the defendants Moreen Bosco, Jeff Nicolett, Charmaine Bill, Robert Bauer, Doreen St. Thomas, David W. Kozyra, Gerald DeRuby, David A. Ball and Frank J. Nebush Jr. did in fact conspire and act together to cover-up the attacks on the plaintiff and numerous other residents of the Sex Offender Treatment Program at Central New York Psychiatric Center by going so far as the filing of false and fabricated reports, statements with incomplete and inadequate investigations reports then the filing of false and fabricated criminal charges with the New York State Police, Marcy, New York substation, Oneida County District Attorney and the Town of Marcy Court, and to be unprofessionally defended by Doreen St. Thomas of the Oneida County Public defenders Office.

Proposed Am. Compl. at ¶ 123.

This request is also untimely. The sum and substance of Plaintiffs supplemental conspiracy claim arises out of events surrounding his criminal prosecution for second degree harassment. Plaintiff was charged with criminal harassment on September 21, 2011, and convicted at trial on January 24, 2012. See Davis Mot., Ex. 4, Cert. of Conviction. Thus, the facts relevant to his supplemental claims were well known to Plaintiff when he filed his first motion to amend on June 11, 2013.[12] Dkt. No. 43, Pl.'s Mot. to Am.

Yet, Plaintiff offers no explanation for his failure to interpose these claims during his first motion to amend. Nor does Plaintiff explain why he waited an additional six months, until January 14, 2014, well after the close of discovery and the termination of the dispositive motion deadline, before attempting to do so. As we made clear in our July 23, 2013 Decision and Order, the Court does not intend to reopen discovery in this matter. Therefore, we cannot now, in fairness to Defendants, permit Plaintiff to add an additional ten defendants and multiple claims on the eve of trial. Accordingly, Plaintiffs Motion to Amend is DENIED.[13]

IV. IFP MOTION

*19 In light of the fact that Plaintiff was already granted the right to proceed IFP in this action, Dkt. No. 7, Am. Mem. Decision & Order, dated Mar. 2, 2012, at p. 3, it is ORDERED that Plaintiffs second Motion to proceed IFP be DENIED as moot.

V. CONCLUSION

For the reasons stated herein, it is hereby

ORDERED, that Plaintiffs Motion to Amend (Dkt. No. 62) and Motion to proceed IFP (Dkt. No. 63) are DENIED; and it is further

RECOMMENDED, that Defendant Davis's Motion for Summary Judgment (Dkt. No. 52) be DENIED; and it is further

RECOMMENDED, that the Motion for Summary Judgment submitted by Defendants Sill and Nicolette (Dkt. No. 55) be DENIED; and it is further

RECOMMENDED, that this case be deemed trial ready; and it is further

ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order upon the parties to this action.

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir.1989)); see also 28 U.S.C. § 636(b) (1); FED. R. CIV. P. 72 & 6(a).

Date: August 11, 2014.

Attorneys and Law Firms

Warren Lane, Bronx, NY, pro se.

Hon. Andrew M. Cuomo, Attorney General of the State of New York, Dean J. Higgins, Assistant Attorney General, of Counsel, Albany, NY, for the Defendants.

ORDER

GARY L. SHARPE, District Judge.

*1 The above-captioned matter comes to this court following a Report-Recommendation by Magistrate Judge David E. Peebles, duly filed August 31, 2009. Following ten days from the service thereof, the Clerk has sent the file, including any and all objections filed by the parties herein.

No objections having been filed, and the court having reviewed the Magistrate Judge's Report-Recommendation for clear error, it is hereby

ORDERED, that the Report-Recommendation of Magistrate Judge David E. Peebles filed August 31, 2009 is ACCEPTED ED in its entirety for the reasons state therein, and it is further

ORDERED, that the plaintiffs motion for partial summary judgment (Dkt. No. 57) is DENIED, defendants' cross-motion for summary judgment (Dkt. No. 79) is GRANTED, and the plaintiffs complaint is DISMISSED in its entirety, and it is further

ORDERED, that the Clerk of the court serve a copy of this order upon the parties in accordance with this court's local rules.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

DAVID E. PEEBLES, United States Magistrate Judge.

Plaintiff Warren Lane, a former New York State prison inmate who alleges that he is "legally blind", has commenced this civil rights action pursuant to 42 U.S.C. §§ 1983, 1984, 1985 and 12, 101 against ten defendants, eight of whom are employed at the Central New York Psychiatric Center ("CNYPC"), alleging various constitutional and statutory violations committed by the defendants during the period of his confinement in CNYPC. In his complaint, plaintiff asserts claims relating to his involuntary confinement at CNYPC in 2006, commencing upon his conditional release date from prison. Plaintiff maintains that he was transferred into CNYPC in violation of his constitutional right to due process, and that while there he was subjected to further violations, including discrimination based upon his disability, excessive force, failure to intervene to protect him from harm, indifference to his medical needs, and retaliation. Plaintiff requests redress in the form of compensatory and punitive damages as well as declaratory relief.

Currently pending before the court in connection with this action are two motions. Plaintiff initiated the motion process by seeking partial summary judgment with respect to his claim that he was denied due process with regard to his commitment to CNYPC and for violations of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12, 101 et seq., while he was held there. Defendants responded in opposition and cross-moved for summary judgment requesting dismissal of plaintiffs complaint in its entirety. Having carefully reviewed the extensive record now before the court, I recommend that plaintiffs motion for partial summary judgment be denied, defendants' motion for summary judgment be granted, and plaintiffs complaint be dismissed in its entirety.

I. BACKGROUND [1]

Plaintiff, who is visually impaired, was incarcerated by the New York State Department of Correctional Services ("DOCS") for approximately twenty-five years following his conviction for multiple sex offenses.[2] Plaintiff's Motion for Partial Summary Judgment (Dkt. No. 57-4) p. 1. Prior to his DOCS conditional custody release date, plaintiff was evaluated by two physicians from the New York State Office of Mental Health ("OMH"); based upon their evaluations, on September 12, 2006, on application of the superintendent of the Sullivan Correctional Facility made pursuant to section 9.27 of the New York Mental Hygiene Law ("MHL"), plaintiff was admitted involuntarily into CNYPC under close observation for participation in the sex offender treatment program ("SOTP").[3] Lane Aff. (Dkt. No. 57-2) ¶¶ 1-5. Although his stay at the CNYPC lasted for less than two months, plaintiffs many complaints regarding his commitment and treatment at that facility give rise to this suit.

*2 Admission records reflect that upon being admitted to CNYPC, plaintiff was "very agitated due to his admission to the SOTP and was making statements that he would due [sic] whatever it took to violate and get sent back to prison."Higgins Decl. (Dkt. No. 79-4) Exh. D, p. 92.[4] When admitted to CNYPC, plaintiffs mobility cane, which he claims to require when he is outdoors or in an unfamiliar environment, was confiscated by defendant Steven Coppola, a treatment assistant at the facility. Complaint (Dkt. No. 1) p. 6. According to defendants, plaintiffs cane was taken pursuant to a CNYPC safety and security policy that precludes any resident of the center from possessing such an item. Nowicki Aff. (Dkt. No. 79-5) ¶ 7. Plaintiff alleges that thereafter he was denied reasonable accommodations for his blindness despite his numerous requests. Complaint (Dkt. No. 1) p. 6. Defendant Jeffrey Nowicki, who was at all times relevant to plaintiffs complaint the Team Leader of the SOTP at CNYPC and is currently the Chief of Mental Health Treatment Services of the SOTP, explains that while plaintiffs cane was confiscated, he was offered a wheelchair or walker, both of which plaintiff refused. Nowicki Aff. (Dkt. No. 79-5) ¶¶ 1, 7-8. Nowicki states further that staff at CNYPC were aware of plaintiffs left eye prosthesis and that plaintiff was given medical support for this condition. Id. ¶ 10. Plaintiffs in-patient nursing assessment conducted on September 12, 2006, upon his admission to CNYPC, reflects plaintiffs mobility status as fully independent without any notations that a cane or walker was needed. Higgins Decl. (Dkt. No. 79-4) Exh. D, p. 38.

On October 13, 2006, one month after his transfer into CNYPC, plaintiff wrote a letter to defendant Donald Sawyer, director of the facility, demanding compliance with the ADA and that he be provided with reasonable accommodations for his disability, including a laptop computer with zoom text, a scanner and inkjet color printer, a 7x magnifier, books on tape, a high intensity lamp and 20/20 pens. Complaint (Dkt. No. 1) p. 9; Plaintiffs Motion for Partial Summary Judgment (Dkt. No. 57-4) Exh. C; see also Defendants' Response to Plaintiffs Statement Pursuant to Local Rule 7.1(a)(3) (Dkt. No. 78) ¶ 5. Plaintiff claims that, in response, defendant Nowicki told him that accommodations were unnecessary because plaintiff "would not remain at CNYPC for much longer."Complaint (Dkt. No. 1) p. 9. Feeling threatened by Nowicki's statement, Lane sent a letter to defendant Sharon Carpinello, Commissioner of the OMH, requesting that she place him into protective custody and transfer him from CNYPC. Id. Plaintiff did not receive a response to that letter. Id. Plaintiff claims to have been subjected to three separate attacks during his stay at CNYPC. On September 18, 2006, while in the recreation yard, plaintiff was struck by a football and subsequently attacked by a fellow patient, suffering injury to his face, nose and jaw.[5] Complaint (Dkt. No. 1) p. 7; Plaintiffs Deposition Transcript ("Tr.") pp. 27-33.[6] Plaintiff claims that upon requesting medical attention he was told by defendant J. Crociata, a nurse at CNYPC, "[t]here's nothing wrong with you, " and denied treatment. Complaint (Dkt. No. 1) p. 7. Plaintiffs CNYPC records contradict his version of the events, instead reflecting that defendant Crociata witnessed plaintiff arguing with another patient near the recreation yard door entrance and tried to intervene. Higgins Decl. (Dkt. No. 79-4) Exh. D, p. 114. When Crociata approached Lane and inquired if he was injured, Lane stated that he was not touched and became angry when Crociata asked what had happened, accusing Crociata of being a racist. Id. Plaintiff was visited by a doctor later that evening during rounds; although the doctor offered to see him, plaintiff again said he was "okay" and declined any treatment. Id.

*3 Following the September 18, 2009 incident, plaintiff demanded that he be permitted to file criminal charges against the patient who assaulted him, but was allegedly denied the opportunity to contact law enforcement authorities by Nowicki and defendants Michael Babula and Frank Menz, both of whom are treatment assistants at CNYPC. Complaint (Dkt. No. 1) p. 7. Nowicki informed plaintiff that mediation was available to handle such disputes, making it unnecessary to contact the State Police.[7] Id. Plaintiff claims defendant Nowicki then threatened that if he insisted on filing criminal charges, Nowicki would have his parole violated. Id. As a result of the September 18 attack plaintiff no longer felt safe, particularly in light of his blindness, and was fearful of losing his remaining ability to see in another altercation. Id. Plaintiff requested that Nowicki either transfer him to another facility or place him in protective custody.[8] Id. After both requests were denied, plaintiff subsequently sent a written request to defendants Sawyer and Sharon Barboza, Director of the SOTP at CNYPC, again asking for protective custody and transfer. Id. Plaintiff received no response from either Sawyer or Barboza. Id.

Plaintiffs CNYPC records show that a call was placed to the New York State Police when plaintiff indicated that he wanted to pursue criminal charges, and that plaintiff became belligerent and threatening after the incident, touting his lengthy disciplinary record in prison and warning not only that he would "kick the shit" out of the other patient with whom he had the problem, but also that he would soon be running the ward.[9] Higgins Decl. (Dkt. No. 79-4) Exh. D, pp. 116-19. Plaintiff did contact his parole officer regarding the incident and also filed a complaint with Nowicki. Id.

The next relevant incident occurred on September 22, 2006 when, plaintiff claims, defendant Nowicki called him to a hallway and ordered defendants Menz and Coppola to "take him down" after Lane refused to speak with Nowicki. Complaint (Dkt. No. 1) p. 8. As a result, plaintiff was thrown to the floor and kicked and punched, put in restraints, and placed on a gurney, even though he claims he did not resist.[10] Id. Plaintiff alleges that he was denied medical treatment for the shoulder, lower back, and face injuries that he sustained and was instead held captive in a room for two to three days, forced to sleep on the floor, and provided only one meal during that time period. Complaint (Dkt. No. 1) p. 8; Tr. p. 55.

Once again, defendants' version of what occurred on that occasion is markedly different. Defendant Nowicki states that on September 22, 2006 plaintiff became hostile toward both staff and the residents, and threatened to instigate a riot. Nowicki Aff. (Dkt. No. 79-5) ¶¶ 21-30; see also Higgins Decl. (Dkt. No. 79-4) Exh. D, pp. 139-50. Nowicki attempted to counsel Lane in the "side room"; plaintiff rebuffed those efforts and instead attempted to re-enter the day room. Nowacki Aff. (Dkt. No. 79-5) ¶¶ 23-24. As a result, plaintiff was placed in four point restraints, pursuant to a doctor's orders, for a period of seven minutes and physically removed to the side room. Id. ¶ 25.When plaintiffs threats continued, he was left in the side room under supervision, consistent with hospital policy, from September 22, 2006 at 1:00 p.m. until September 25 at 9:30 a.m., during which time he was provided food, a mattress and a chair. Id. ¶¶ 26-30.When plaintiff was visited by a psychiatrist, he stated that he was upset because he felt that he was being treated differently than other patients with respect to unit policies, and denied any intention to hurt anyone, despite his threats. Higgins Decl. (Dkt. No. 79-4) Exh. D, p. 150. Detailed CNYPC progress notes recording plaintiffs status at fifteen minute intervals show that Lane was provided and ate all of his meals during the time he was confined to the side room. Id. pp. 153-81. Plaintiffs parole officer was called to CNYPC, but found that there was insufficient evidence to bring parole violation charges against plaintiff Id. p. 186; see also Nowicki Aff. (Dkt. No. 79-5) ¶ 27 (reflecting that the parole officer was summoned at plaintiffs request).

*4 Following the events of September 18 and 22, 2006, plaintiff and his wife made several written complaints and placed telephone calls to various New York and federal agencies and officials. Complaint (Dkt. No. 1) p. 8. Plaintiff complains that neither he nor his wife were ever contacted by New York State Mental Hygiene Legal Services, that Prisoners Legal Services declined to represent him because he was no longer incarcerated, and that defendant Beebe, the person with the New York State Commission for Quality Care of Persons with Disabilities, assigned to investigate plaintiffs complaint, never visited CNYPC while Lane was there, and failed to interview plaintiff or his wife. Id. Defendants, by contrast, contend that defendant Beebe had either personal telephone conversations or exchanged voice mail messages with plaintiffs wife, Denise Lane, on October 1, October 23, November 1, November 3, and November 7, 2006. Defendants' Response to Plaintiffs Request for Admissions (Dkt. No. 62-3) ¶ 8. Defendant Beebe also visited CNYPC on November 21, 2006 to investigate plaintiffs complaints. Higgins Aff. (Dkt. No. 79-4) Exh. E, pp. 32-33.

Plaintiff asserts that in early October of 2006, he was again "attacked" by another patient whom, he maintains, has a history of assaultive behavior. Complaint (Dkt. No. 1) p. 9; Tr. p. 39. While plaintiff admits that there was no physical contact between the two, he states that out of fear he immediately requested placement in protective custody, a request that was once again denied. Id. After the incident, plaintiff was brought to the side room and is reported to have said that the fellow patient kept threatening him, and that he would take matters into his own hands if required. Higgins Decl. (Dkt. No. 79-4) Exh. D, p. 214. It was noted that CNYPC staff members were becoming increasingly concerned regarding plaintiffs menacing behavior and his apparent attempts to control and rally other patients, and that Lane stated that he felt like killing the other patient. Id., pp. 214, 220.

The final incident of which plaintiff complains occurred on October 31, 2006, when Lane, upset after seeing another patient attacked, requested and was given permission to return to his room instead of remaining queued with the other patients proceeding to the dining room. Complaint (Dkt. No. 1) p. 9. After returning to his room plaintiff was approached by defendant Lucenti regarding the incident; responding to Lucenti, Lane said, "[w]hat are you people waiting for someone to get stabbed?"Complaint (Dkt. No. 1) p. 9. When plaintiff left his room later that day he was confronted by defendants Nowicki, Lucenti, Menz, Coppola and Babula, at which time Nowicki allegedly stated, "[w]e got you now." Complaint (Dkt. No. 1) p. 10. Plaintiff appears to have interpreted this statement to mean that defendants falsified documents to make it seem that plaintiff had threatened defendant Lucenti. Id.; Tr. pp. 43-44. As a result of the incident plaintiffs parole status was revoked, and he was removed that day from CNYPC and transferred into the Oneida County Jail. Nowicki Aff (Dkt. No. 78-2) ¶¶ 6, 19; Tr. p. 18.

*5 According to defendants the events of October 31, 2006 were precipitated by plaintiffs refusal to stay in line and his subsequent threat, when approached regarding the incident, to put a knife to the neck of one of the CNYPC staff members. Higgins Decl. (Dkt. No. 79-4) Exh. D, pp. 296-301. According to defendant Lucenti, when he went to speak with the plaintiff about getting out of line,

Mr. Lane then got in my face, he said he was going to put a knife in a TA's [treatment assistant's] neck, a knife or something in a TA's neck. He said I am serious, I will put a knife in one of their necks, I will lay them out cold. You better call parole. I'm tired of all this, I am going to the side room.

Parole Hearing Tr. (Dkt. No. 84-5) p. 32; Higgins Decl. (Dkt. No. 79-4) Exh. D, p. 296. Lucenti considered this to be a serious threat. Parole Hearing Tr. (Dkt. No. 84-5) p. 32. Plaintiff demanded that he be moved to the side room and returned to prison, and was informed that arrangements were being made to return him to the custody of the DOCS as soon as possible; plaintiff went to the side room, his parole officer was called, a violation was issued, and Lane was returned to prison. Id.

II. PROCEDURAL HISTORY

Plaintiff commenced this action on July 19, 2007, and was thereafter granted leave to proceed in forma pauperis on August 1, 2007. Dkt. Nos. 1, 4.In his complaint plaintiff names ten defendants, including Sharon E. Carpinello, the Commissioner of the OMH; Barbara Beebe, [11] a facility review specialist from the State of New York Commission on Quality of Care for Persons with Disabilities; Donald Sawyer, the Director of the CNYPC; Sharon E. Barboza, M.D., the Director of the SOTP at CNYPC; Jeffrey Nowicki, a team leader of the SOTP at CNYPC; and Anthony Lucenti, Michael Babula, Frank Menz, Steven Coppola, and J. Crociata, all staff members at the facility. Alleging violations of the ADA as well as the First, Fourth, Fifth, Eighth and Fourteenth Amendments of the United States Constitution, plaintiffs complaint asserts ten enumerated causes of action, including denial of due process, failure to provide reasonable accommodations for his disability, excessive use of force, deliberate indifference to his medical needs, failure to intervene and/or protect, retaliation, conspiracy and failure to investigate his complaints. Id.

On October 2, 2008, following joinder of issue and the close of discovery, plaintiff moved for partial summary judgment on his due process claim as it relates to his commitment to CNYPC as well as his claims under the ADA. Dkt. No. 57. In support of his motion, relying on the doctrines of res judicata and collateral estoppel, plaintiff asserts that the procedures under which he was involuntarily committed to CNYPC were determined to be unconstitutional by the New York State Court of Appeals in Harkavy v. Consilvio, 7 N.Y.3d 610, 825 N.Y.S.2d 702 (2006), that he was unlawfully denied a mobility guide for his blindness, and that his parole violation was "fruit of a poisonous tree" and would not have occurred had he not been unlawfully detained at CNYPC in violation of the Fourth Amendment. Dkt. No. 57.

*6 Defendants opposed plaintiffs motion and cross-moved for summary judgment, advancing several grounds for rejection of all of plaintiffs claims, including that 1) plaintiffs section 1983 claims against defendants, acting in their official capacities, are barred by the Eleventh Amendment; 2) plaintiff has failed to establish a valid cause of action under the ADA, and defendants cannot be held individually liable for damages under that Act; 3) plaintiff has not established claims of failure to protect, deliberate indifference to his medical needs, denial of access to courts, retaliation, excessive use of force, or conspiracy; 4) plaintiff has failed to demonstrate the requisite personal involvement by defendants Carpinello and Sawyer to support a finding of liability against them; 5) plaintiff has no cognizable constitutional interest in filing a criminal complaint, or in the pursuit of an investigation regarding his complaints made while housed at CNYPC; 6) defendants are not bound by the Court of Appeals decision in Harkavy, which was decided after plaintiff was released from CNYPC, and that decision does not create a constitutional right that is redressable in this court; and 7) in any event, defendants are shielded from suit by the doctrine of qualified immunity. Dkt. No. 79-3.Plaintiff has since responded in opposition to defendants' motion. Dkt. No. 84.

Both of the pending summary judgment motions, which are now ripe for determination, have been referred to me for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed.R.Civ.P. 72(b).

III. DISCUSSION

A. Summary Judgment Standard

Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, summary judgment is warranted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir.2004). A fact is "material", for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.2005) (citing Anderson, 477 U.S. at 247, 106 S.Ct. at 2509-10). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

A moving party seeking summary judgment bears the initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n. 4, 106 S.Ct. at 2511 n. 4; Security Ins., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material issue of fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Where a party is proceeding pro se, the court must "read [his or her] supporting papers liberally, and... interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994). Though pro se plaintiffs are entitled to special latitude when defending against summary judgment motions, to successfully resist summary judgment they must establish more than mere "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); but see Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir.1999) (noting obligation of court to consider whether pro se plaintiff understood nature of summary judgment process).

*7 When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences from the facts, in a light most favorable to the nonmoving party. Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir.1998). The entry of summary judgment is warranted only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. See Building Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir.2002) (citation omitted); see also Anderson, 477 U.S. at 250, 106 S.Ct. at 2511 (summary judgment is appropriate only when "there can be but one reasonable conclusion as to the verdict"). In a case such as this, where parties have interposed cross-motions for summary judgment, each motion must be independently assessed, using this standard as a backdrop. See Light Sources, Inc. v. Cosmedico Light, Inc., 360 F.Supp.2d 432, 434 (D.Conn.2005).

B. Fourteenth Amendment Procedural Due Process Claim Plaintiff challenges his involuntary commitment to CNYPC as violative of his right to due process and moves for summary judgment on this claim, arguing that the New York State Court of Appeals decision in Harkavy, should be given res judicata or collateral estoppel effect in this action. In Harkavy, the Court of Appeals held that the DOCS' resort to Article 9 of the MHL to institute commitment procedures for sex offenders in its custody was improper, observing that

in the absence of a clear legislative directive in regard to inmates nearing their release from incarceration, we believe that [New York] Correction Law § 402 is the appropriate method for evaluating an inmate for postrelease involuntary commitment to a mental facility.

Harkavy, 7 N.Y.3d at 614, 825 N.Y.S.2d 702, 859 N.E.2d 508.[12] Having been committed to CNYPC under MHL § 9.27, plaintiff now argues that Harkavy renders his commitment unconstitutional, and that defendants are bound by that decision. Defendants counter that since plaintiff was already removed from CNYPC and returned to prison by the time Harkavy was decided, the case has no bearing on his circumstances.

1. Res Judicata

Under the doctrine of res judicata, known also as "claim preclusion, " a final judgment on the merits of an action precludes the parties, or those in privity with the parties, from relitigating issues that were or could have been raised in that action. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980); Jacobson v. Fireman's Fund Insurance Co., 111 F.3d 261, 265 (2d Cir.1997); Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir.1994)."It is a cardinal principle of res judicata that the first suit and the subsequent case must involve the same cause of action[, ]' otherwise, res judicata will not bar the second action." Thompson v. County Franklin, No. 92-CV-1258, 1996 WL 341988, at *3 (June 18, 1996) (McCurn, S.J.) (quoting Bloomquist v. Brady, 894 F.Supp. 108, 114 (W.D.N.Y.1995)). In the Second Circuit, there are three separate but related factors which together inform the analysis of the preclusive effect to be given a prior judgment, including "[w]hether the same transaction or connected series of transactions is at issue, whether the same evidence is needed to support both claims, and whether the facts essential to the second were present in the first."[13] Woods v. Dunlop Tire Corp., 972 F.2d 36, 38 (2d Cir.1992) (quoting NLRB v. United Technologies, 706 F.2d 1254, 1260 (2d Cir.1983) (internal quotations omitted)).

*8 Neither Lane nor the defendants were parties to Harkavy. That lawsuit was a habeas corpus proceeding filed against the DOCS by the New York Mental Hygiene Legal Services seeking the immediate release of certain individuals whose prison terms had expired and were being held at the Manhattan Psychiatric Center. While it is arguable that defendants in this action are in privity with the DOCS, see Browdy v. Lantz, 3:03CV1981, 2006 WL 2711753, at *5 (D.Conn. Sept.21, 2006), plaintiff, who had been released from CNYPC at the time Harkavy had been decided, was not a party to that action, does not allege any privity with the petitioners in Harkavy, and was never held in the Manhattan Psychiatric Center. Accordingly, the two actions do not arise from the same core of operative facts, nor would they involve the same evidence. In addition, although both Harkavy and this action involve MHL § 9.27, Harkavy did not determine the constitutionality of the DOCS' use of MHL § 9.27 to commit sex offenders leaving their custody. Rather, the issue presented and addressed by the New York Court of Appeals in that case was whether the DOCS' use of the MHL procedure, as distinct from that set forth in Correction Law § 402, was proper, and the court held only that it was not. Harkavy, 7 N.Y.3d at 610, 825 N.Y.S.2d 702, 859 N.E.2d 508. For these reasons, the Harkavy decision does implicate the doctrine of res judicata in this action.

2. Collateral Estoppel

The doctrine of collateral estoppel, or claim preclusion, is equally inapplicable in this case. Once a court has decided an issue of fact or law necessary to its judgment, a party to the first action, or one in privity with the party, cannot relitigate that specific issue in a subsequent lawsuit/Wen, 449 U.S. at 94; Burgos, 14 F.3d at 792; Ryan v. N.Y. Telephone Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487, 490 (1984). Under New York law, collateral estoppel applies only if 1) the issue in question was necessarily decided in the prior proceeding and is decisive of the present proceeding; and 2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding. Burgos, 14 F.3d at 792; Khandhar v. Elfenbein, 943 F.2d 244, 247 (2d Cir.1991). The party asserting collateral estoppel has the burden of showing that the identical issue was previously decided, while the party opposing estoppel must show the absence of a full and fair opportunity to litigate in the prior proceeding. Burgos, 14 F.3d at 792. Because the issue decided in Harkavy was not identical to the issue raised in this lawsuit, collateral estoppel does not preclude litigation of the constitutionality of defendants' actions in this case.

3. Due Process

Turning to the merits of plaintiffs due process claim, I begin by noting that to successfully state a claim under 42 U.S.C. § 1983 for denial of procedural due process, a plaintiff must show that he or she 1) possessed an actual liberty interest, and 2) was deprived of that interest without being afforded sufficient procedural safeguards. See Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir.2000) (citations omitted); Hynes, 143 F.3d at 658; Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir.1996). It is undeniable that [i]nvoluntary confinement, including civil commitment, constitutes a significant deprivation of liberty, requiring due process." Abdul v. Matiyn v. Pataki, 9:06-CV-1503, 2008 WL 974409, at *10 (N.D.N.Y. April. 8, 2008) (Hurd, J. and Homer, M.J.) (quoting Fisk v. Letterman, 401 F.Supp.2d 362, 374 (S.D.N.Y.2005) (citations omitted)."When a person's liberty interests are implicated, due process requires at a minimum notice and an opportunity to be heard." Mental Hygiene Legal Service v. Spitzer, 2007 WL 4115936, at * 5 (citing Hamdi v. Rumsfeld, 542 U.S. 507, 533, 124 S.Ct. 2633, 2648, 159 L.Ed.2d 578 (2004) (plurality opinion)). The Supreme Court has approved the use of involuntary confinement where there has been a determination that the person in question currently suffers from a "mental abnormality" and is likely to pose a future danger to the public. Abdul, 2008 WL 974409, at *10 (citing Kansas v. Hendricks, 521 U.S. 346, 371, 117S, S.Ct. ___, S ___, ___ L.Ed.2d ___, ___, ___, S.Ct. 2072, 2086(1997)).

*9 Plaintiff was committed to CNYPC by way of the procedures set out in MHL § 9.27, rather than Correction Law § 402. Lane was not afforded notice and an opportunity to be heard before, or even after, his transfer to that facility. In light of these facts, and for the reasons underpinning the Court of Appeals' decision in Harkavy, it appears that plaintiffs due process rights were violated in connection with his commitment. Abdul, 2008 WL 974409, at *10; see also Wheeler v. Pataki, No. 9:07-CV-0892, 2009 WL 674152, at *6-7 (N.D.N.Y. March 11, 2009) (McAvoy, S.J. and Lowe, M.J.). I therefore recommend denial of defendants' motion for summary judgment dismissing plaintiffs due process claim to the extent that defendants' basis for dismissal is addressed to the merits of that cause of action.[14]

4. "Fruit of the Poisonous Tree"

In an apparent effort to make a claim for violation of his Fourth Amendment rights, plaintiff next argues that if he had not been committed to CNYPC under the MHL, he would not have been "illegally" confined and therefore would not have threatened defendant Lucenti and violated his parole. In a creative attempt to draw upon principles that do not translate well into this setting, Lane argues that the conduct giving rise to his parole revocation is "tainted" under the "fruit of the poisonous tree" principles.

"The fruit of the poisonous tree doctrine excludes evidence obtained from or as a consequence of lawless official acts." Townes v. City of New York, 176 F.3d 138, 145 (2d Cir.1999) (quoting Costello v. United States, 365 U.S. 265, 280, 81 S.Ct. 534, 542, 5 L.Ed.2d 551 (1961)). It does not apply in this context where plaintiff apparently objects to use of evidence of his threats as a basis for a parole violation. See Rabb v. McMaher, No. 94-CV-614, 1998 WL 214425, at *7 (N.D.N.Y. Apr.24, 1998) (Pooler, J.) ("This doctrine applies to evidence that is obtained during a criminal investigation as a result of an unconstitutional search; it does not apply to to prison disciplinary hearings."). Simply stated, the fmit of the poisonous tree doctrine cannot link the conduct allegedly violating plaintiffs Fourth Amendment rights to his return to prison and establish an actionable claim, since this evidentiary doctrine is inapplicable in a civil section 1983 setting. Townes, 176 F.3d at 145.

C. Qualified Immunity

As one of the bases for their summary judgment motion, defendants assert their entitlement to qualified immunity from suit. Qualified immunity shields government officials performing discretionary functions from liability for damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) (citations omitted). Accordingly, governmental officials sued for damages "are entitled to qualified immunity if 1) their actions did not violate clearly established law, or 2) it was objectively reasonable for them to believe that their actions did not violate such law." Warren v. Keane, 196 F.3d 330, 332 (2d Cir.1999) (citing Salim v. Proulx, 93 F.3d 86, 89 (2d Cir.1996)); see also Zellner v. Summerlin, 494 F.3d 344, 367 (2d Cir.2007); Iqbal v. Hasty, 490 F.3d 143, 152 (2d Cir.2007), rev'd on other grounds, sub. nom. Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 173 L.Ed.2d 868 (May 18, 2009). The law of qualified immunity seeks to strike a balance between overexposure by government officials to suits for violations based upon abstract rights and an unduly narrow view which would insulate them from liability in connection with virtually all discretionary decisions. Locurto v. Safir, 264 F.3d 154, 162-63 (2d Cir.2001); Warren, 196 F.3d at 332. As the Second Circuit has observed,

*10 [q]ualified immunity serves important interests in our political system, chief among them to ensure that damages suits do not unduly inhibit officials in the discharge of their duties by saddling individual officers with personal monetary liability and harassing litigation.

Provost v. City of Newburgh, 262 F.3d 146, 160 (2d Cir.2001) (internal quotations omitted) (citing, inter alia, Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 456 F.2d 1339, 1348 (2d Cir.1972)).

Until recently, it was generally agreed that a proper qualified immunity analysis entailed a three step inquiry. Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206, 211-12 (2d Cir.2003). As a threshold matter a court considering the issue was charged with first determining whether, based upon the facts alleged, the plaintiff had facially established a constitutional violation. Id.; Gilles v. Repicky, 511 F.3d 239, 243-44 (2d Cir.2007). If the answer to this inquiry was in the affirmative, then the focus turned to whether the right in issue was clearly established at the time of the alleged violation. Id. (citing Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001)); see also Poe v. Leonard, 282 F.3d 123, 132-33 (2d Cir.2002). Finally, upon determining that the plaintiff had a clearly established, constitutionally protected right which was violated, the court next considered whether it was nonetheless objectively reasonable for the defendant to believe that his or her action did not abridge that established right. Harhay, 323 F.3d at 211; Poe, 282 F.3d at 133 (quoting Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir.1998) (quoting, in turn, Salim, 93 F.3d at 89)).

The United States Supreme Court recently had the opportunity to reconsider the analysis prescribed by Saucier, holding that while the sequence of the inquiry set forth in that case is often appropriate, it should no longer be regarded as compulsory. Pearson v. Callahan, 555 ___ U.S. ___, 129 S.Ct. 808, 820, 172 L.Ed.2d 565 (Jan. 21, 2009). In Pearson, the Court reasoned that while the Saucier protocol promotes the development of constitutional precedent and is "especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable, " the rigidity of the rule comes with a price. Id. at 818.The inquiry often wastes both scarce judicial and party resources on challenging questions that have no bearing on the outcome of the case. Id. Given that the purpose of the qualified immunity doctrine is to ensure that insubstantial claims are resolved prior to discovery, the Court opined that the algorithm prescribed by Saucier may serve to defeat this goal by requiring the parties "to endure additional burdens of suit - such as the cost of litigating constitutional questions and delays attributable to resolving them - when the suit otherwise could be disposed of more readily." Id. (quotations and citations omitted).

*11 As a result of its reflection on the matter, the Pearson Court concluded that because "the judges of the district courts and courts of appeals are in the best position to determine the order of decision making [that] will best facilitate the fair and efficient disposition of each case", those decision makers "should be permitted to exercise their sound discretion in deciding which of the... prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand." Id. at 818, 821.In other words, as recently emphasized by the Second Circuit, the courts "are no longer required to make a threshold inquiry' as to the violation of a constitutional right in a qualified immunity context, but we are free to do so." Kelsey v. County of Schoharie, 567 F.3d 54, 61 (2d Cir.2009) (citing Pearson, 129 S.Ct. at 821) (emphasis in original)."The [ Saucier twostep] inquiry is said to be appropriate in those cases where discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all.'" Id. (quoting Pearson, 129 S.Ct. at 818).

The question is whether "upon viewing the allegations of the complaint in the light most favorable to the plaintiff and drawing all inferences favorable to the plaintiff, [a] reasonable jury could conclude that it was objectively unreasonable for the defendants to believe that they were acting in a fashion that did not violate an established federally protected right, " in which case the motion to dismiss must be denied. Quartararo v. Catterson, 917 F.Supp. 919, 959 (E.D.N.Y.1996) (quoting Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d. Cir.1993); see also Schwartz v. Dennison, 518 F.Supp.2d 560, 571 (S.D.N.Y.2007), affd 2009 WL 2172510 (2d Cir. July 22, 2009).

Although I have determined that plaintiffs right to due process was violated when he was involuntarily committed to CNYPC, I also find that the inability of state officials, including defendants and any DOCS official that may have been involved, to rely on MHL § 9.27 was not clearly established at that time. At the time of plaintiffs commitment the Court of Appeals had not yet decided Harkavy. Indeed, before plaintiffs commitment, the New York State Supreme Court Appellate Division, First Department, in that case had endorsed the DOCS' ability to utilize MHL § 9.27, finding that provision to be consonant with the petitioners' Fourteenth Amendment rights to due process. Harkavy v. Consilvio, 29 A.D.3d 221, 812 N.Y.S.2d 496 (1st Dep't 2006). In addition to the unsettled state of the law in New York, it appears that no federal court decision had been issued forecasting the ultimate finding in Harkavy before plaintiffs confinement to CNYPC. In fact, prior to Harkavy, the Second Circuit had generally approved of MHL § 9.27 as meeting both substantive and procedural due process requirements. See, e.g., Project Release v. Provost, 722 F.2d 950, 972-975 (2d Cir.1983). Accordingly, I conclude that the parameters of plaintiffs constitutional right to due process were not clearly established at the time of his commitment and that, as a matter of law, it was objectively reasonable for defendants, as well as the DOCS, to rely on MHL § 9.27 in committing plaintiff to CNYPC. I therefore recommend a finding that, to the extent that any of the defendants were involved in the decision to commit plaintiff to CNYPC on his parole release date, they are entitled to qualified immunity with respect to plaintiffs claims for violation of his Fourteenth Amendment rights to due process, in light of the fact that it was objectively reasonable for them to believe that they were acting in a manner that did not violate any of plaintiffs protected rights.

D. Eleventh Amendment

*12 Although not specifically stated, plaintiffs claims in this action appear to be asserted against defendants both individually and in their official capacities as state employees. Complaint (Dkt. No. 1) ¶ 3. Defendants contend that plaintiffs claims against them in their official capacities are subject to dismissal on the basis of the immunity that the Eleventh Amendment affords.

The Eleventh Amendment protects a state against suits brought in federal court by citizens of that state, regardless of the nature of the relief sought Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 3057-58, 57 L.Ed.2d 1114 (1978). This absolute immunity, which states enjoy under the Eleventh Amendment, extends both to state agencies and in favor of state officials sued for damages in their official capacities when the essence of the claim involved seeks recovery from the state as the real party in interest.[15] Richards v. State of New York Appellate Div., Second Dept, 597 F.Supp. 689, 691 (E.D.N.Y.1984) (citing Pugh and Cory v. White, 457 U.S. 85, 89-91, 102 S.Ct. 2325, 2328-29, 72 L.Ed.2d 694 (1982)). To the extent that a state official is sued for damages in his official capacity the official is entitled to invoke the Eleventh Amendment immunity belonging to the state. See Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985); Hafer v. Melo, 502 U.S. 21, 26, 112 S.Ct. 358, 361, 116 L.Ed.2d 301 (1991). Eleventh Amendment immunity does not extend, however, to employees who are sued in their personal or individual capacity. Schwartz, 518 F.Supp.2d at 570 (citing Farid v. Smith, 850 F.2d 917, 921 (2d Cir.1988)).

Since plaintiffs damage claims against the named defendants in their official capacities are in reality claims against the State of New York, thus exemplifying those against which the Eleventh Amendment protects, they are subject to dismissal. Daisernia v. State of New York, 582 F.Supp. 792, 798-99 (N.D.N.Y.1984) (McCurn, J.). I therefore recommend that this portion of defendants' motion be granted, in part, and that all damage claims, except for those asserted against the defendants in their official capacities under the ADA, be dismissed.[16]

E. Failure to Provide Reasonable Accommodations Under the ADA

Plaintiff asserts that defendants knew, or should have known, that he is legally blind and that their refusal to provide him with reasonable accommodations for this alleged disability was in contravention of the ADA. Lane now moves for summary judgment in his favor on this claim, apparently on the grounds that his legal blindness constitutes a disability as a matter of law and that he has sufficiently demonstrated defendants' denial of reasonable accommodation for this disability. Defendants respond that they are entitled to dismissal of this claim because plaintiff has failed to allege that his legal blindness substantially limits a major life activity and also has failed to prove that he was excluded from participation in, or denied benefits of, some service or program. Defendants argue further that the taking of plaintiffs cane was not motivated by discriminatory animus. Finally, defendants contend that plaintiffs' claims against them in their individual capacities are not permitted under the ADA and damages against them in their official capacities are barred by the Eleventh Amendment.

*13 The ADA provides that

no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

42 U.S.C. § 12132 (1990). CNYPC, operated by the New York OMH, is considered a public entity for the purposes of the ADA, and as such is required to provide "reasonable modifications to rules, policies, or practices.." See 42 U.S.C.A. § 12131(1)(B) & 42 U.S.C.A. § 12131(2). Public entities are not required to provide substantively different services to the disabled under the disability statutes, but instead must provide "reasonable accommodations' to enable meaningful access' to such services as may be provided, whether such services are adequate or not." Wright v. Giuliani, 230 F.3d 543, 548 (2d Cir.2000).

It is well established that under the ADA, suits against defendants in their individual capacities as state officials are barred. Garcia v. S.U.N.Y. Health Sciences Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir.2001) (collecting cases). Accordingly, I recommend dismissal of plaintiffs ADA claim to the extent that it seeks recovery of damages against defendants as individuals. The issue of whether defendants are immune in their official capacities is significantly more complicated.

1. Eleventh Amendment: ADA Claims

In Henrietta D. v. Bloomberg , the Second Circuit held that under Ex Parte Young an ADA plaintiff can assert a prospective claim for injunctive relief against a state official in his or her official capacity, as opposed to against the state directly. 331 F.3d 261, 287 (2d Cir.2003), cert denied., 541 U.S. 936, 124 S.Ct. 1658, 158 L.Ed.2d 356 (2004) (citing Ex Parte Young, 209 U.S. 123, 155-56, 28 S.Ct. 441, 452, 52 L.Ed. 714 (1908)). That court has not explicitly held likewise for ADA plaintiffs who seek money damages. Nonetheless, a request for monetary damages from state officials in their official capacities is the functional equivalent of a claim for damages directly from the State of New York, and Eleventh Amendment sovereign immunity therefore ordinarily protects a defendant in his or her official capacity to the same extent that it protects the State. See, e.g., Garcia, 280 F.3d at 107 (citing inter alia, Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989)).

It is well settled under Eleventh Amendment jurisprudence that neither a state nor one of its agencies can be sued without either express or implied consent, or an express abrogation by Congress of the state's sovereign immunity. See, e.g., Kilcullen v. N.Y. State Dep't of Labor, 205 F.3d 77, 79 (2d Cir.2000), implicitly overruled on other grounds by Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 368, 121 S.Ct. 955, 965, 148 L.Ed.2d 866 (2001); Hallett v. N.Y. State DOCS, 109 F.Supp.2d 190, 197 (S.D.N.Y.2000) (citations omitted). In this respect, the Eleventh Amendment, while not directly controlling, confirms the broader, "background principle of sovereign immunity [.]'" Garcia, 280 F.3d at 107 (quoting Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72, 116 S.Ct. 1114, 1131, 134 L.Ed.2d 252 (1996)). When abrogating sovereign immunity, Congress must both unequivocally intend to do so and act pursuant to a valid grant of constitutional authority. Garrett, 531 U.S. at 363, 121 S.Ct. at 962 (citing, inter alia, Seminole Tribe, 517 U.S. at 54, 116 S.Ct. at 1122); Garcia, 280 F.3d at 108 (citations omitted). The pivotal question, in determining whether defendants are entitled to protection under the Eleventh Amendment when sued in their official capacities, is whether, and if so to what extent, that amendment protects the states from liability under Title II of the ADA.[17]

*14 The question of whether the Eleventh Amendment bars ADA claims under Title II against a state is an unsettled question among the circuits. In Garrett, the Supreme Court held that Congress had failed to validly abrogate state sovereign immunity under Title I of the ADA. 531 U.S. at 374, 121 S.Ct. at 967-68. In doing so, the Court was careful to distinguish Title II from its analysis, inasmuch as the issue had not been briefed by the parties, but did note that the remedial scheme of Title II is very different from that of Title I. Id. at 360 n. 1, 121 S.Ct. at 960 n. 1. The courts appear to be divided as to whether Garrett should extend to Title II of the ADA, especially since Pennsylvania Dep't of Corr. v. Yeskey - which held that Title II of the ADA applies to prisons - had been decided in the term previous to Garrett, but did not address sovereign immunity. 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998); compare, e.g., Popovich v. Cuyahoga Cty. Ct. of Common Pleas, 276 F.3d 808, 813-16 (6th Cir.2002) (holding that sovereign immunity validly abrogated by Congress as to the Due Process Clause), cert. denied, 537 U.S. 812, 123 S.Ct. 72 (2002), with Alsbrook v. City of Manuelle, 184 F.3d 999, 1007 (8th Cir.1999), cert. dismissed 529 U.S. 1001, 120 S.Ct. 1265, 146 L.Ed.2d 215 (2000) (finding that Congress exceeded authority by extending Title II of the ADA to the states and therefore did not validly abrogate sovereign immunity).

The Second Circuit has taken a slightly different approach than various other federal courts in addressing this question. In Muller v. Costello, decided before the Supreme Court issued its opinion in Garrett, the Second Circuit found that Congress had validly abrogated sovereign immunity within its authority under section five of the Fourteenth Amendment, subjecting states to potential monetary liability under the ADA.[18] 187 F.3d 298, 310 (2d Cir.1999). More recently, however, in Garcia v. S.U.N.Y. Health Sciences Ctr ., the Second Circuit found that Garrett had "implicitly abrogated" its prior position that the states were not immune from ADA claims. 280 F.3d at 113 n. 3.

In Garcia, the Second Circuit found that Congress could not validly abrogate sovereign immunity under the Commerce Clause, one of the two empowering provisions cited in support of its enactment of Title II. Garcia, 280 F.3d at 108. The circuit court went on to find, however, that Congress could exercise its authority under section five of the Fourteenth Amendment - the "sweep of congressional authority" allowing Congress to "enforce the [F]ourteenth [A]mendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities" - when enacting Title II of the ADA, as a whole, though it found the power to have been exceeded through enactment of Title II, since that provision conferred upon Congress the right to abrogate sovereign immunity and allow for private parties to sue non-consenting states for money damages. Garcia, 280 F.3d at 108-10.

*15 Turning to the specific question of whether Congress, through proper invocation of its section five powers, effectively abrogated sovereign immunity in the case of private damage suits under Title II, however, the Second Circuit found that the ADA's broad remedial scheme, borrowed from the Rehabilitation Act and Title VI of the Civil Rights Act of 1964, included a judicially implied private cause of action, thus allowing that court latitude to shape a remedy. Id. at 110-112. Specifically, in Garcia the Second Circuit concluded that Title II claims against the states for monetary damages and injunctive relief could be reconciled with the prohibitions of the Eleventh Amendment if permitted in limited circumstances - that is, in cases where a plaintiff establishes that a Title II violation was motivated by discriminatory animus or ill will based on disability. Garcia, 280 F.3d at 111 see Doe v. Goord, No. 04-CV-0570, 2004 WL 2829876, at *15 (S.D.N.Y. Dec. 10, 2004); Lighthall v. Vadlamudi, No. 9:04-CV-0721, 2006 WL 721568, at *18 (N.D.N.Y. Mar.17, 2006) (Mordue, C.J.). In other words, defendants' conduct must be "based on irrational prejudice or wholly lacking a legitimate government interest." Garcia, 280 F.3d at 111. Since I find defendants' are not immune from suit under the Eleventh Amendment in their official capacities for alleged violations of the ADA, it is necessary to evaluate the merits of plaintiffs claim under that provision.

2. McDonnell Douglas Analysis

The court in Garcia conceded that it may be a difficult burden for a plaintiff to establish that an ADA violation resulted from discrimination, or ill will, and held that a plaintiff can rely on the McDonnell Douglas burden-shifting technique, or a motivating factor analysis under Price Waterhouse, to establish such a claim. Garcia, 280 F.3d at 112.

Under the McDonnell Douglas protocol, a plaintiff must first establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 76 (2d Cir.2001) (citing Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000)). Upon establishment of a prima facie case, the burden of production shifts to the defendant, who at that juncture must come forward and articulate a legitimate, non-discriminatory reason for the adverse action in issue. McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817, 36 L.Ed.2d 668; Holtz, 258 F.3d at 77 (quoting James v. New York Racing Ass'n, 233 F.3d 149, 154 (2d Cir.2000)); Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir.2003). Once the defendant has successfully shouldered this burden, the focus then reverts to the plaintiff, who must establish that the alleged, nondiscriminatory rationale offered did not genuinely prompt the adverse action, but instead is a mere pretext for discrimination. McDonnell Douglas Corp., 411 U.S. at 804, 93 S.Ct. 1817, 36 L.Ed.2d 668; Graham v. Long Island R.R., 230 F.3d 34, 43 (2d Cir.2000) (citing Hargett v. Nat'l Westminster Bank, USA, 78 F.3d 836, 839 (2d Cir.1996), cert denied, 519 U.S. 824, 117 S.Ct. 84, 136 L.Ed.2d 41 (1996)). While under the McDonnell Douglas paradigm the burden of production alternates back and forth between the parties, a plaintiff claiming intentional discrimination is tasked ultimately with establishing discrimination by a preponderance of the evidence. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981); Holcomb v. lona College, 521 F.3d 130, 138 (2d Cir.2008).

*16 Under Price Waterhouse, if the plaintiff can establish that the prohibited discrimination played "a motivating part" in the adverse action, the defendant must then demonstrate that he or she "would have made the same decision in the absence of discrimination". Price Waterhouse v. Hopkins, 490 U.S. 228, 252-53, 109 S.Ct. 1775, 1792, 104 L.Ed.2d 268 (1989). A party seeking the benefit of this defense bears the burden of establishing by a preponderance of the evidence that it would have taken the same action, irrespective of the plaintiffs disability. See Bookman v. Merrill Lynch, No. 02 CIV. 1108, 2009 WL 1360673, at *10-16 (S.D.N.Y. May 14, 2009).

To state a valid violation of the ADA, a plaintiff must show "1) [he is a] qualified [individual]' with a disability; 2) that the defendants are subject to the ADA; and 3) that [plaintiff was] denied the opportunity to participate in or benefit from defendants' services, programs, or activities, or were otherwise discriminated against by defendants, by reason of plaintiffs disabilities." Henrietta D. v. Bloomberg, 331 F.3d at 272 (citing Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir.1998)).

a. Plaintiffs Disability

A person is considered to have a disability if he or she has "a) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; B) a record of such an impairment; or C) [is] regarded as having such impairment."42 U.S.C. § 12102(2). Major life activities include "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working."42 U.S.C. § 12102(2)(A).

In support of his motion, plaintiff has presented evidence of an eye examination performed on July 22, 2005, while Lane was incarcerated at Sullivan Correctional Facility, diagnosing him as having a prosthesis of the left eye and glaucoma and increasing myopia in the right eye. Plaintiffs Motion for Partial Summary Judgment (Dkt. No. 57-4) Exh. B. Defendants admit their awareness of plaintiffs sight limitations, though they question his allegations regarding the severity of the vision impairment of his right eye. Notably, in and of itself, "monocular vision" is not a per se disability within the meaning of the ADA. Hoehn v. Intl Sec. Services & Investigations, Inc., 244 F.Supp.2d 159, 167 (W.D.N.Y.2002) (citing Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 556, 119 S.Ct. 2162, 2169, 144 L.Ed.2d 518 (1999)."[R]ather, whether monocular vision substantially limits a major life activity of a particular individual is to be determined on a case by case basis and in terms of the impairment's impact on the individual Id.; see also Ditullio v. Village of Massena, 81 F.Supp.2d 397, 405 (N.D.N.Y.2000). To determine the particular impact of monocular vision upon a plaintiff, for purposes of the ADA disability calculus, the court should consider "1) the degree of visual acuity in the weaker eye; 2) the age at which the vision loss occurred; 3) the extent of the individual's compensating adjustments in visual techniques; and, 4) the ultimate scope of the restrictions on the individual's abilities. " Hoehn, 244 F.Supp.2d at 167 (citing Kirkingburg, 527 U.S. at 566, 119 S.Ct. at 2169). Even though most people with monocular vision will meet the ADA'S definition of disability, they are still required to prove their loss is substantial. Id.; see also, Gibbs v. City of New York, No. 02-CV-2424-LB, 2005 WL 497796, at *5 (S.D.N.Y. Jan.21, 2005). Moreover, the fact that one can be characterized as "legally blind" does not, as a matter of law, establish a disability within the meaning of the ADA. See Rivera v. Apple Indus. Corp., 148 F.Supp.2d 202, 207, 213 (E.D.N.Y.2001); Hoehn, 244 F.Supp.2d at 162, 171; EEOC v. United Parcel Serv., Inc., 306 F.3d 794, 799, 803 (9th Cir.2002).

*17 Plaintiff has failed to come forward with sufficient evidence to establish that he is disabled as a matter of law. While plaintiff states that, in addition to a left eye prosthesis, he has glaucoma and increasing myopia of the right eye, the evidence as to the actual restrictions that he suffers and whether such restrictions affect a major life activity is equivocal, at best. Plaintiff contends that he is unable to read without the use of a magnifier and cannot participate in recreation without sports goggles and ankle braces. Defendants, on the other hand, assert that while housed at CNYPC, plaintiff demonstrated no signs of difficulty relating to his ability to write, read, or use a calculator without any supplemental aids or services, and that he was able to fully participate in his treatment programs. Affording defendants the benefit of all inferences, it appears that material questions of fact exist as to whether plaintiff is disabled within the meaning of the ADA, thus precluding the entry of summary judgment in his favor on the ADA cause of action set forth in his complaint.

b. Plaintiffs Participation

Even assuming that plaintiff sufficiently established that he suffers from a cognizable disability, his motion for summary judgment on his ADA claim nonetheless must fail. Plaintiff easily satisfies the second applicable requirement; since CNYPC and OMH are agencies of the State, defendants are required to adhere to the ADA. See 42 U.S.C. § 12131(1)(B). The third prong of the ADA analysis, however, entails analysis of whether Lane was denied the opportunity to participate in services, programs, or activities as a result of his alleged disability; again, this issue presents questions of fact not susceptible to resolution on the motion for summary judgment. Plaintiff argues that as a result of not receiving reasonable accommodations, he was unable to participate in recreation without his requested sport goggles and ankle braces, and he was unable to read until his family provided him with a magnifier. Tr. p. 62-63. Plaintiff also claims that after his mobility cane was taken upon admittance to CNYPC, he was never offered another means of assistance and instead was told to by defendant Coppola to "crawl or feel his way". Lane Aff. (Dkt. No. 84-2) ¶ 6. In contrast, defendants contend that throughout plaintiffs stay at CNYPC, he demonstrated no signs of difficulty in his ability to write, read, or use a calculator without any supplemental aids or services and that he was able to fully participate in his treatment groups. Nowicki Aff. (Dkt. No. 79-5) ¶¶ 11, 12, 14. From these competing claims, it is readily apparent that questions of fact preclude a finding in favor of plaintiff on the issue of whether he was denied reasonable accommodations.

c. Discriminatory Animus

If the plaintiff is able to establish a prima facie claim under the ADA at trial, the burden will shift to defendants to come forward with a legitimate non-discriminatory reason for their conduct. While denying their awareness that plaintiff required accommodations for his visual impairment, defendant Nowicki asserts that upon being admitted to CNYPC, plaintiffs mobility cane was confiscated for safety and security purposes, and that plaintiff was immediately offered a wheelchair or walker, both of which he refused. Nowicki Aff. (Dkt. No. 79-5) ¶¶ 7-8. Defendants contend further that plaintiffs records did not indicate that he experienced mobility problems, and that he indicated that he could read and write, a fact that became evident to them as result of Lane's active participation in the program. Id. at ¶¶ 9-12.

*18 Defendants have thus articulated legitimate nondiscriminatory reasons for their actions. In response, plaintiff has neither offered evidence of pretext, nor has he produced evidence of discriminatory animus. Indeed, plaintiff's complaint is devoid of any allegation that defendants actions were motivated by irrational discriminatory animus or ill will based upon his visual impairment, and Lane has produced no evidence that would support such a claim. See Garcia, 280 F.3d at 112.

In view of the foregoing, I recommend denial of plaintiff's motion for summary judgment on his ADA claim. And, based upon plaintiffs failure to produce any evidence of discriminatory animus, I further recommend that defendants' motion for summary judgment dismissing plaintiffs ADA claim against defendants in their official capacities be granted.

F. Fourteenth Amendment Substantive Due Process Claims

Several claims alleged in plaintiffs complaint are predicated upon alleged violations of the Eighth Amendment, although plaintiff also makes reference to the Fourteenth Amendment throughout his complaint. When plaintiff was released by the DOCS to CNYPC, he had served his prison term, subject to release on parole, and was no longer a prison inmate. The Eighth Amendment, prohibiting cruel and unusual punishment of those convicted of crimes, is therefore not applicable under the circumstances. Youngberg v. Romeo, 457 U.S. 307, 312, 102 S.Ct. 2452, 2456, 73 L.Ed.2d 28 (1982). Because plaintiff was not a prison inmate at the time of the alleged deprivation of his federal rights, any claim arising from his confinement must be asserted and evaluated under the Due Process Clause of the Fourteenth Amendment. Dove v. City of New York, No. 03-CV-5052, 2007 WL 805786, at * 7 (S.D.N.Y. March 15, 2007) (citing cases).

Patients who are involuntarily committed unquestionably are entitled to certain rights under the Fourteenth Amendment; as the Supreme Court has noted, "[i]f it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the involuntarily committed... in unsafe conditions." Youngberg, 457 U.S. at 315-16, 102 S.Ct. at 2458. "The Supreme Court has explained that when the State takes a person into its custody and holds [her] there against [her] will, the Constitution imposes upon it a corresponding duty to assume responsibility for [her] safety and general well-being.'" Beck v. Wilson, 377 F.3d 884, 889 (8th Cir.2004) (quoting DeShaney v. Winnebago Couty Dept of Soc. Servs., 489 U.S. 189, 199-200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)). Plaintiffs claims of failure to protect, excessive force, and medical indifference, all framed as arising under the Eighth Amendment, relate to allegedly unsafe conditions while he was involuntarily confined at CNYPC, and must be analyzed within the framework of the Fourteenth Amendment.

1. Failure to Protect

The Second Circuit has yet to address the correct standard to be applied when evaluating a failure to protect claim arising out of an involuntary commitment, and there appears to be some uncertainty regarding the matter. The Supreme Court "established [in Youngberg ] that involuntarily committed mental patients have substantive due process rights, ... [and]... held that only an official's decision that was a substantial departure from accepted professional judgment, practice or standards' would support a substantive due process claim brought by an involuntarily committed mental patient." Vallen v. Carrol, No. 02 Civ. 5666(PKC), 2005 WL 2296620, at * 8 (S.D.N.Y. Sept.20, 2005) (quoting Youngberg, 457 U.S. at 323). In Vallen, the court examined Youngberg and whether the substantial departure standard evolving from that decision should be applied where the plaintiff, who was a patient involuntarily committed to the Mid-Hudson Forensic Psychiatric Facility, alleged that he was subjected to violence and that the defendants, security hospital treatment assistants, failed to prevent those incidents. Distinguishing Youngberg, the court stated that

*19 [u]nlike the defendants in Youngberg, the defendants here are low-level staff members. The nature of such an employee immediately addressing patient-on-patient assault or theft differs significantly from higher-level decisions like patient placement and the adequacy of supervision. For the latter decisions, it is readily possible to apply a test based on professional judgment, practice or standards. In this case, professionals made none of the challenged decisions, and thus the "substantial departure" test has no applicability.

Vallen, 2005 WL 2296620, at *8. The court went on to acknowledge that the general approach to substantive due process claims asserted under section 1983 requires that a plaintiff show that the defendants' actions, taken under color of state law, involved "conduct intended to injure [plaintiff] in some way unjustified by [any]... governmental interest and most likely rise to the conscience-shocking level". Id. (quoting County of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S.Ct. 1708, 1718, 140 L.Ed.2d 1043 (1998)). Ultimately, however, the court suggested that this test would result in an unduly heavy burden being placed upon a plaintiff and also would be inconsistent with the state's central role in supervising and caring for the involuntarily committed. Vallen, 2005 WL 2296620, at *9. Instead, citing Lewis and analogizing the plaintiffs rights to those of pre-trial detainees, the court suggested its agreement with the "deliberate indifference" standard employed in such circumstances by the Eighth Circuit. Id. at *9 (citing Moore v. Briggs, 381 F.3d 771, 773 (8th Cir.2004)).[19]

In Dove v. City of New York , a claim similar to that raised by Lane was interposed by the plaintiff, another involuntarily committed individual, arising out of altercations with other patients. Rejecting the applicability of the Eighth Amendment to the plaintiffs circumstances, the court likewise acknowledged the lack of certainty as to whether the claim against the defendants should be measured by a "substantial departure" or "deliberate indifference" standard. Dove, 2007 WL 805786, at *8. Citing Vallen, the court failed to reach the issue of which standard would apply, finding that under either no reasonable factfinder could conclude that defendants violated plaintiffs constitutional rights. Id.

I tend to agree with the Vallen court's conclusion that the "standard of deliberate indifference'" best accommodates constitutional concerns in connection with section 1983 claims brought by involuntarily committed mental patients based on alleged failures to protect them in violation of their substantive due process rights.[20] Vallen, 2005 WL 2296620, at * 9. Deliberate indifference, under the Eighth Amendment, exists if an official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he [or she] must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970 1979, 128 L.Ed.2d 811 (1994); Leach v. Dufrain, 103 F.Supp.2d 542, 546 (N.D.N.Y.2000) (citing Farmer, 511 U.S. at 837, 114 S.Ct. at 1979); Waldo v. Goord, No. 97-CV-1385, 1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998) (same). "In Lewis, the Court equated deliberate indifference for substantive due process and Eighth Amendment purposes." Moore, 381 F.3d at 774 (citing Lewis, 523 U.S. at 849-40, 118 S.Ct. 1708, 140 L.Ed.2d 1043).

*20 As in Vallen and Dove, however, I find it unnecessary to resolve the issue of which standard may here be appropriate since under any of the potentially applicable standards plaintiffs claim of failure to protect must fail. Plaintiffs complaint describes two occasions on which he was allegedly assaulted or attacked by other patients during his commitment at the CNYPC. The first incident occurred on September 18, 2006, shortly after plaintiff was admitted. Complaint (Dkt. No. 1) p. 7. Lane concedes that he was first struck by a football and then became involved in an altercation with a fellow patient, as a result of which he claims to have suffered injury to his face, nose and jaw. Complaint (Dkt. No. 1) p. 7; Tr. pp. 27-33. Plaintiff also admits that he is unable to distinguish between the injuries that he received from being hit by the football and those resulting from the ensuing altercation. See Plaintiffs Response to Defendants' Local Rule 7.1(a)(3) Statement (Dkt. No. 84). The only treatment that was required for plaintiffs resulting injuries was pain medication for his discomfort.

According to plaintiffs CNYPC records, upon observing the altercation defendant Crociata attempted to intervene by getting between the two patients and preventing further contact. Higgins Decl. (Dkt. No. 75-4) Exh. D, p. 114. Immediately after the other patient was escorted away from the area, Crociata approached plaintiff to see if he was hurt. Id. Plaintiff told Crociata that he had not been touched, and refused to let Crociata speak to him any further. Id. While plaintiff disputes telling Crociata that he was not touched, he does admit that after the incident Crociata approached him and asked him what had happened; Lane claims, however, that Crociata saw everything and states that he was angered by Crociata's question, apparently interpreting it as racist. Complaint (Dkt. No. 1) p. 7; see also Tr. pp. 31-32. Plaintiff also admits that Crociata saw him for his injuries, but alleges Crociata did not examine him. Tr. pp. 27-33.

Significantly, plaintiff does not allege that he had any previous difficulties with the patient with whom he was involved in the altercation, or that the defendants had reason to know of the danger in exposing the two to each other. In fact, plaintiff states that he had "absolutely no" prior interaction with that patient. Tr. p. 28. Additionally, plaintiff has failed to allege that any other defendant had any involvement in this incident. Based on these facts, no reasonable factfinder could conclude that any of the defendants engaged in conduct that shocked the conscience, substantially departed from accepted professional judgment, practices or standards, or was deliberately indifferent to plaintiffs safety. Simply stated, the record discloses that the September 18, 2006 encounter stemmed from an unforseen accident that escalated into an altercation and that CNYPC staff immediately intervened and took appropriate action to secure both individuals involved.

*21 The second alleged incident occurred somewhere in the beginning of October, when plaintiff claims he was "attacked" by another patient. Complaint (Dkt. No. 1) p. 9. Plaintiff does not identify a specific date or recount the circumstances surrounding the alleged attack, nor does he claim to have suffered any injury. The record suggests an incident occurred between plaintiff and another patient on October 3, 2006 in which he and the other patient "had words." Higgins Decl. (Dkt. No. 75-4) Exh. D, p. 214. There is no evidence in the record that plaintiff was physically touched or in any way injured as a result of this incident. To the contrary, plaintiff admits that the only incident in which he received physical injury occurred on September 18. Tr. p. 44. With regard to the October instance, I find that plaintiff has failed to establish a sufficiently serious deprivation to show that he was subjected to an unreasonably unsafe condition and trigger the Fourteenth Amendment's protections.

In view of the foregoing, I find that plaintiff has failed to establish a Fourteenth Amendment claim for failure to protect and/or intervene and, accordingly, I recommend defendants' motion for summary judgment relating to this claim be granted.

2. Medical Care

"Courts have consistently held, in a variety of contexts, that the due process rights of persons in a nonpunitive detention are greater than the Eighth Amendment protections afforded to convicted prisoners."Haitian Centers Council, Inc. v. Sale, 823 F.Supp. 1028, 1043 (E.D.N.Y.1993) (citing cases); Owens v. Colburn, 860 F.Supp. 966, 974 (N.D.N.Y.1994), aff'd60 F.3d 812 (2d Cir.1995) (citing cases)."Persons in nonpunitive detention have a right to reasonable medical care, ' a standard demonstrably higher than the Eighth Amendment standard that protects prisoners: deliberate indifference to serious medical needs.'" Owens, 860 F.Supp. at 974 (quoting Haitian Centers Council, 823 F.Supp. at 1043-44). At a minimum, due process forbids conduct that is deliberately indifferent to one that is involuntarily committed. Haitian Centers Council, 823 F.Supp. at 1044.

Plaintiffs medical indifference claim has as it genesis the now familiar September 18, 2006 incident. Plaintiff claims that after being struck by a football and subsequently attacked by a fellow patient on that date, he sought medical treatment from defendant Crociata; Lane also alleges that he suffered back pain as a result of the events of that day. Complaint (Dkt. No. 1) p. 7; Tr. pp. 27-33. As was previously noted, plaintiff was unable to distinguish the injuries sustained from being hit by the football from those allegedly resulting from the altercation, if any. Tr. pp. 29-30. Lane alleges that when defendant Crociata saw him, Crociata told him, "Where's nothing wrong with you" and failed to perform an actual examination. Complaint (Dkt. No. 1) p. 7.

Plaintiffs CNYPC records contradict plaintiffs version, revealing that Crociata approached plaintiff immediately after the altercation to see if he was hurt, at which time plaintiff told him "I wasn't touched, " and refused to let Crociata speak to him any further. Higgins Decl. (Dkt. No. 79-4) Exh. D, p. 114. Later in the day, plaintiff apologized to Crociata for his behavior, and complained of general discomfort. Id. As a result, Crociata promptly prescribed 600 milligrams of Motrin for plaintiffs pain. Id. A follow-up note by Nurse Jane Helfert shows that after receiving the Motrin plaintiff slept through the night, and made no further complaints about his pain. Id. p. 115.

*22 Plaintiff himself acknowledges that he did not report his injuries to Crociata, never complained to anyone that his back was hurting, and did not request any sort of pain medication for his alleged injuries. Tr. pp. 32-33, 35-36. Plaintiff also concedes that he was provided with ibuprofen and other pain medication when requested, including the day after the altercation. Tr. p. 34. Moreover, plaintiff is unable to articulate what follow up treatment he believes was constitutionally required.[21] Id. at 38.

Based upon these facts, I have determined that no reasonable factfinder could conclude that there was an unreasonable or deliberately indifferent "denial" or delay in treatment of plaintiff on September 18, 2006. I therefore recommend that defendants' motion to dismiss plaintiffs medical indifference claim be granted.[22]

3. Excessive Force

Plaintiff claims that on September 22, 2006, as a result of his refusal to talk to defendant Nowicki, he was beaten and held in restraints and thereby subjected to excessive force. Complaint (Dkt. No. 1) p. 8. As with plaintiff's failure to protect claim, the proper framework for analysis of this claim is the Fourteenth, and not the Eighth, Amendment. Youngberg, 457 U.S. at 312, 102 S.Ct. at 2456. "It bears remembering... that not all bodily harm caused by a government actor is actionable as a constitutional violation." West v. Whitehead, No. 04-CV-9283, 2008 WL 4201130, at * 14 (S.D.N.Y. Sept. 11, 2008) (citations omitted)."Only when bodily harm is caused by government action so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience, ' will a constitutional violation result." Id. (quoting Lombardi v. Whitman, 485 F.3d 73, 81 (2d Cir.2007)).

In the Second Circuit, it is recognized that individuals in the non-seizure, non-prisoner environment have a substantive due process right to be free from the use of excessive force by their custodians. See Johnson v. Newburgh Enlarged School Dist., 239 F.3d 246, 253 (2d Cir.2001) (citing Rodriguez v. Phillips, 66 F.3d 470, 476 (2d Cir.1995)). Factors to be considered in examining excessive force claims include: "the need for the application of force, the relationship between the need and amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Id. at 251-52 (quoting Metzger v. Osbeck, 841 F.2d 518, 520 (3d Cir.1988)). With respect to the last factor, the Second Circuit has explained that

[i]f the force was maliciously or sadistically [employed] for the very purpose of causing harm in the absence of any legitimate government objective and it results in substantial emotional suffering or physical injury, the conduct is presumptively unconstitutional.... [M]alicious and sadistic abuses of government power that are intended only to oppress or to cause injury, and serve no legitimate purpose unquestionably shock the conscience... [C]onduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.

*23 Id. at 252 (citations omitted)."Whether conduct rises to the level of unconstitutional excessive force depends on the totality of circumstances." West, 2008 WL 4201130, at * 15 (citing Johnson, 239 F.3d at 254).[23] This analysis was found applicable by the court in West to an excessive use of force claim asserted under section 1983 by a profoundly mentally retarded individual committed to a state-operated facility for developmentally disabled individuals. West, 2008 WL 4201130, at *14-15.

Plaintiff claims that on September 22, 2006 he was called from the day room by Nowicki, who said that he wanted to talk to plaintiff in the side room. Tr. p. 45. Plaintiff responded by stating that he did not have anything to say to Nowicki, at which point, plaintiff claims, Nowicki directed the twenty treatment assistants that were standing there to "take him down." Tr. p. 46. Plaintiff claims that he was then kicked and struck about his body, placed in restraints and transported by gurney to some other location where he was kept without being given food for two to three days, except for a sausage sandwich; plaintiff admits being offered drinks but states that he refused. Tr. pp. 45-61.

According to defendants, on the day of the alleged incident plaintiff had been hostile toward staff and residents, threatened to start a riot, and refused counseling by Nowicki in the side room. Nowicki Aff. (Dkt. No. 79-5) ¶¶ 22-23. Plaintiff was recorded as saying "[d]on't try to take me to the side room or try to shoot me up, because when I come out of it, there will be trouble. That's a promise, not a threat."Higgins Decl. (Dkt. No. 79-4) Exh. D, p. 146. Because plaintiff attempted to return from the hallway to the day room, he was placed into a four point restraint for seven minutes, pursuant to doctor's orders, and transported to the side room "without injury or physical altercation". Nowicki Aff. (Dkt. No. 79-5) ¶¶ 24-25; Higgins Decl. (Dkt. No. 79-4), Exh. D, p. 146.

Nowicki states that after being restrained plaintiff continued to make threats and, consistent with hospital policy, remained in the side room with one-to-one supervision from 1:00 p.m. September 22, 2006 until 9:30 a.m. on September 25, 2006, during which time he was provided food and a mattress, slept and ate, and attended to his own daily self-care activities. Nowicki Aff. (Dkt. No. 79-5) ¶¶ 24-29. Plaintiffs CNYPC records also indicate that plaintiffs activity was monitored at fifteen minute intervals and that plaintiff was provided meals, saw a psychiatrist and was permitted to meet with his parole officer. Higgins Decl. (Dkt. No. 79-4) Exh. D, pp. 146-80. The record also reveals, and plaintiff admits, that at various times over this three-day period Lane refused to interact with staff, and plaintiff acknowledges that the purpose in putting him in isolation was behavior modification. Tr. pp 53-55, 60.

While the parties' versions of the events of September 22, 2006 vary, I do not find the differences material to the determination of this claim. Plaintiff does not dispute that he refused to go to the side room to speak with Nowicki, nor does he deny making threats in the day room. The decision to put plaintiff in a four point restraint was made by a physician in light of plaintiffs history, his serious threats, and his refusal to follow staff direction. Plaintiff does not claim to have been restrained for a period longer than that necessary to transport him. Plaintiff has produced no evidence that the force that was used was malicious or sadistic, for the very purpose of causing him harm.

*24 Although plaintiff generally alleges that he sustained injury to his back, shoulders and neck and was denied medical treatment as a result of the incident, plaintiff does not specifically identify any injury or treatment that was needed with specificity, and he does not allege that he has suffered any continuing problems. There is no evidence of any relevant injury noted in plaintiffs CNYPC records. The record indicates, and plaintiff admits, that within two hours of being placed in the side room, he was seen by a doctor, with whom he refused to speak. Significantly, plaintiffs allegation that he was denied medical treatment on that date directly contradicts his deposition testimony to the effect that the only time he was denied treatment was on September 18, 2006. Tr. p. 36.

Based upon the record now before the court, no reasonable fact:Cinder could find defendant's conduct conscienceshocking. Rather, the record establishes that defendants were attempting in good faith to discipline plaintiff and restore order as a result of his failure to follow directions and his continuous threats to patients and staff at the facility. I therefore recommend that defendants' motion for summary judgment as to this claim be granted, and that plaintiffs excessive force claim be dismissed.[24]

G. First Amendment

"The First Amendment Guarantees the right to petition the Government for a redress of grievances.'" McKithen v. Brown, 565 F.Supp.2d 440, 458 (E.D.N.Y.2008) (quoting U.S. Const. amend. I). Out of the Petition Clause of that amendment arises the right of access to courts, City of New York v. Beretta U.S.A Corp., 524 F.3d 384, 397-98 (2d Cir.2008), cert. denied ___ U.S. ___, 129 S.Ct. 1579, 173 L.Ed.2d 675 (2009), as well the right to petition for redress for grievances without retaliation. Franco v. Kelly, 854 F.2d 584, 589 (2d Cir.1988).

1. Access to the Courts

Although not specifically stated in his complaint, defendants suggest that when liberally construed in light of his deposition testimony plaintiffs complaint makes a claim of denial of access to the courts.[25]

Without question, an inmate's constitutional right to "meaningful" access to the courts is firmly established.[26] Bounds v. Smith, 430 U.S. 817, 823, 97 S.Ct. 1491, 1495, 52 L.Ed.2d 72 (1977) (citations and internal quotation marks omitted)."However, this right is not an abstract, freestanding right to a law library or legal assistance and cannot ground a Section 1983 claim without

a showing of actual injury." Collins v. Goord, 438 F.Supp.2d 399, 415 (S.D.N.Y.2006) (quoting Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (internal quotations omitted). Thus, "[t]o survive a motion for summary judgment, plaintiff must present evidence showing that he has suffered actual injuiy." Jarecke v. Hensley, No. 3:07-cv-1281, 2009 WL 2030394, at *9 (D.Conn. July 9, 2009) (citing Lewis v. Casey, 518 U.S. at 351-52). To prove an actual injury, a plaintiff must show that a non-frivolous legal claim was frustrated or impeded due to the actions of the defendants.[27] Abdul-illatiyn, 2008 WL 974409, at * 13.

*25 Plaintiff has failed to prove his claim that defendants' failure to provide him with a laptop computer with zoom text, a scanner and inkjet color printer, 7x magnifier, books on tape, high intensity lamp and 20/20 pens as requested in his letter to defendant Sawyer on October 13, 2006, resulted in his inability to pursue any legal action. See Plaintiffs Motion for Partial Summary Judgment (Dkt. No. 57-4), Exh. C. In fact, plaintiff admits he was able to file all of the legal proceedings that he desired. Tr. p. 67. Moreover, as defendants explain in their motion for summary judgment, CNYPC patients are afforded access to the Mental Hygiene Legal Services ("MHLS"), which provides "legal services, advice and assistance, including representation, with regards to the resident's hospitalization."Dkt. No. 79-3, p. 12. Plaintiff admits that he was familiar with the services MHLS provides, and actually attempted to bring an action with the assistance of that agency, but was transferred from CNYPC before the proceeding could move forward. Tr. p. 10. Because there is no evidence that plaintiff suffered actual injury due to defendants' alleged interference with his access to the courts, I recommend that any claim by plaintiff that he was denied such access be dismissed.

2. Retaliation

In his complaint plaintiff alleges that defendants retaliated against him because he and his family complained to various governmental agencies and officials, and he insisted on filing criminal charges against another patient. Complaint (Dkt. No. 1) p. 11. "[C]riticism of governmental agencies is protected speech under the First Amendment." Olesen v. Morgan, No. 1:06-CV-959, 2008 WL 5157459, at *4 (N.D.N.Y. Dec.8, 2008) (quoting Economou v. Butz, 466 F.Supp. 1351, 1361 (S.D.N.Y.1979) (footnote omitted)). When adverse action is taken by governmental officials against a person being held in custody, motivated by his or her exercise of a right protected under the Constitution, including the free speech provisions of the First Amendment, a cognizable retaliation claim under 42 U.S.C. § 1983 lies. See Franco, 854 F.2d at 588-90.

In order to state a prima facie claim under section 1983 for retaliatory conduct, a plaintiff must advance non-conclusory allegations establishing that 1) the conduct at issue was protected; 2) the defendants took adverse action against the plaintiff; and 3) there exists a causal connection between the protected activity and the adverse action - in other words, that the protected conduct was a "substantial or motivating factor" in the prison officials' decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir.2007); Dawes v. Walker, 239 F.3d 489, 492 (2d Cir.2001). If the plaintiff carries this burden, then to avoid liability the defendants must show by a preponderance of the evidence that they would have taken action against the plaintiff "even in the absence of the protected conduct." Mount Healthy, 429 U.S. at 287, 97 S.Ct. at 576. If taken for both proper and improper reasons, state action may be upheld if the action would have been taken based on the proper reasons alone. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996) (citations omitted).

*26 Analysis of retaliation claims thus requires thoughtful consideration of the protected activity in which the inmate plaintiff has engaged, the adverse action taken against him or her, and the evidence tending to link the two. When such claims, which are exceedingly case specific, are alleged in only conclusory fashion and are not supported by evidence establishing the requisite nexus between any protected activity and the adverse action complained of, a defendant is entitled to the entry of summary judgment dismissing plaintiffs retaliation claims. Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983), overruled on other grounds, Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002).

The right to file a grievance and petition the government for redress is "among the most precious of the liberties safeguarded by the Bill of Rights." Franco, 854 F.2d at 589 (quoting United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 222, 88 S.Ct. 353, 356, 19 L.Ed.2d 426 (1967)). Plaintiff therefore easily meets the first prong of the governing test by demonstrating that he engaged in protected activity.

It is in connection with the requirement that the two be linked that plaintiffs retaliation claim falls short. Plaintiff first claims that defendants retaliated against him by falsifying documents in order to have him removed from the facility. Complaint (Dkt. No. 1) p. 11. Lane has failed to offer proof, however, showing that any document was falsified by defendants with the intent to have plaintiff removed from CNYPC. As District Judge David N. Hurd recognized in his decision in Barclay v. New York, 477 F.Supp.2d 546 (N.D.N.Y.2007), in cases involving allegations of retaliation based on the filing of allegedly false misbehavior reports, "[t]he difficulty lies in establishing a retaliatory motive." Barclay, 477 F.Supp.2d at 558. More than conclusory allegations are required to survive a summary judgment motion; the "types of circumstantial evidence that can show a causal connection between the protected conduct and the alleged retaliation include temporal proximity, prior good discipline, finding of not guilty at the disciplinary hearing, and statements by defendants as to their motives." Id. (citations omitted); see also Rivera v. Goord, 119 F.Supp.2d 327, 339 (S.D.N.Y.2000).

Here, the evidence in the record overwhelmingly demonstrates that from the outset and repeatedly throughout his confinement at CNYPC, plaintiff voiced both his discontent with being placed at the facility and his desire to return to prison. There is ample evidence in the record demonstrating that while confined at CNYPC plaintiff was involved in more than one altercation and made repeated threats to the safety of staff and other patients, including threats to start a riot and to kill another patient; the event finally precipitating his removal was his threat to cut the throat of a treatment assistant. Conversely, there is no evidence in the record that suggests that any document authored by any defendant was false, let alone that falsification of such document was motivated by a desire to retaliate against the plaintiff for his written complaints to various governmental agencies. Moreover, the incident that caused plaintiffs removal from CNYPC also formed the basis for the parole violation that precipitated plaintiffs return to prison, for which he was afforded a hearing, was represented by counsel, and was permitted to cross-examine witnesses and present his own evidence, and he was ultimately found guilty.

*27 The second incident that plaintiff attributes to retaliatory animus relates to his September 22-26, 2006 confinement in an isolated room after he insisted on filing criminal charges against a fellow patient who assaulted him. Complaint (Dkt. No. 1) p. 11. On this count, plaintiff fails to demonstrate that the alleged adverse action was prompted by protected conduct. Preliminarily, it should be noted that plaintiff has repeatedly complained that he was prevented from filing any criminal charges, yet admits that following the September 18, 2006 altercation he participated in mediation with the other patient, leading to resolution of the matter. Even assuming that plaintiff pursued criminal charges, his claim would fail as it is well established that "a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973). Accordingly, plaintiff had no constitutionally protected right to file a criminal complaint. Finally, even if plaintiff had sufficiently established that he engaged in protected activity, he has failed to adduce any evidence demonstrating that his confinement in isolation was in any way related to his effort to pursue criminal charges in regard to the attack that occurred several days prior, or that it was maliciously motivated by a retaliatory animus.

Because plaintiff has failed to produce any evidence to support his retaliation claims, I recommend that this portion of defendants' motion for summary judgment be granted, and that those claims be dismissed.

3. Investigation of Complaints

Plaintiffs tenth cause of action purports to allege a claim for the acts or omissions of defendant Beebe in failing to investigate plaintiffs complaints regarding the conditions of confinement at the CNYPC. Complaint (Dkt. No. 1) p. 8, 12. Although the right to petition government is well established, there is no corresponding duty on the part of the government to act. Prestopnik v. Whelan, 253 F.Supp.2d 369, 375 (N.D.N.Y.2003) (citations omitted), affd 83 Fed.Appx. 363 (2d Cir.2003); Wolf v. Town of Mount Pleasant, No. 06 Civ. 3864, 2009 WL 1468691, at *6 (S.D.N.Y. April 27, 2009) (citing Bernstein v. New York, 591 F.Supp.2d 448, 460 (S.D.N.Y.2008)). Plaintiff has, therefore, failed to allege a cognizable claim.[28]

I therefore recommend that all claims against defendant Beebe be dismissed.

H. Personal Involvement

Defendants move to dismiss all claims asserted by Lane against defendants Carpinello and Sawyer based upon their lack of personal involvement in the allegedly offending conduct. At the outset, because the court has determined that plaintiff was not denied a constitutional right, his supervisory claims against Carpinello and Sawyer should be dismissed. See Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983). Even if there were a cognizable claim, however, the claims against Carpinello are subject to dismissal based upon a lack of personal involvement.

*28 Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under section 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991) and McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978)). In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show some tangible connection between the constitutional violation alleged and that particular defendant. See Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.1986). A supervisor can be found to have personal involvement in a constitutional violation if the evidence shows:

1) the defendant participated directly in the alleged constitutional violation,

2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, 3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowing the continuance of such a policy or custom, 4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or 5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.

Colon v. Coughlin, 58 F.3d 865, 873 (1995) (quoting Wright, 21 F.3d at 501).

Plaintiffs claims against defendant Carpinello, Commissioner of the New York State OMH, and defendant Sawyer, the director of CNYPC, are premised exclusively upon their roles as supervisors. Plaintiff alleges that Carpinello was involved in the refusal of plaintiffs requests for accommodations under the ADA, refused to hire a disabilities rights coordinator, demonstrated deliberate indifference to his needs, failed to supervise employees at the facility, and instituted policies and procedures that she knew, or should have known, were unlawful. Complaint (Dkt. No. 1) pp. 9-12. For this claim plaintiff relies on a letter that he wrote to Carpinello in mid-October asking to be placed in protective custody and transferred from CNYPC. Complaint (Dkt. No. 1) p. 9. Plaintiff admits that he never received a response to his letter. Complaint (Dkt. No. 1) p. 9.

Plaintiffs allegations against Sawyer are similar. On October 13, 2006 plaintiff sent defendant Sawyer a letter requesting certain accommodations under the ADA, including such things as a laptop computer, a magnifier and books on tape. Dkt. No. 57-4, Exh. C. Additionally, plaintiff alleges that Carpinello and Sawyer should have been aware of his complaints by virtue of the letters that he and his wife had written to various state agencies and public officials. The mere receipt of a letter of complaint alone, however, is insufficient to establish personal involvement and liability under section 1983. Porter v. Goord, No. 04-CV-0506F, 2009 WL 2386052, at *5 (W.D.N.Y. July 20, 2009) (citations omitted); Lyerly v. Phillips, No. 04 Civ. 3904(PKC), 2005 WL 1802972, at *7 (S.D.N.Y. July 29, 2005) (Castel, J.) (citing Johnson v. Wright, 234 F.Supp.2d 352, 363 (S.D.N.Y.2002)).[29]

*29 Plaintiff also claims that there existed an unwritten policy and custom of patient abuse and assault at CNYPC, which had been in place for many years. Yet, plaintiff has produced no evidence of instances of alleged assault or abuse of patients, aside from the incident on September 22, 2006, of which he now complains. In opposition to defendants' motion, Lane offers the affidavit of John Palombo (Dkt. No. 84-6), a former patient confined at CNYPC from July, 2006, until November of 2007. The Palombo affidavit, however, is fatally conclusory. Palombo states that he personally witnessed staff members attack and beat patients at CNYPC on a least six different occasions, but fails to identify with any specificity the dates on which such beatings allegedly occurred, the patients that were involved, or the circumstances surrounding the alleged beatings. Id. ¶ 13.Nor does Palombo allege that supervisors were notified or aware of the matter, or that complaints were made about these incidents. In fact, plaintiff has produced no evidence of any complaints of abuse made by or on behalf of patients, other than his own. In view of the foregoing, I conclude that the evidence in the record is insufficient to permit a reasonable juror to find the existence of an unwritten policy or custom of patient abuse at CNYPC. See Upton v. County of Orange, 315 F.Supp.2d 434, 447 (S.D.N.Y.2004).

For the foregoing reasons, I recommend that defendants' motion for summary judgment dismissing the claims against Carpinello and Sawyer for lack of personal involvement be granted.[30]

I. Conspiracy

Embedded within plaintiffs complaint, though not separately stated, is a conspiracy claim asserted under 42 U.S.C. §§ 1983 and 1985.[31] Defendants also seek dismissal of that claim.

1. Section 1983

To sustain a conspiracy claim under 42 U.S.C. § 1983, a plaintiff must demonstrate that a defendant "acted in a wilful manner, culminating in an agreement, understanding or meeting of the minds, that violated the plaintiffs rights... secured by the Constitution or the federal courts." Malsh v. Austin, 901 F.Supp. 757, 763 (S.D.N.Y.1995) (citations and internal quotation marks omitted). Conclusory, vague or general allegations of a conspiracy to deprive a person of constitutional rights do not state a claim for relief under section 1983. See Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir.1983), (per curiam) cert. denied, 464 U.S. 857, 104 S.Ct. 177, 78 L.Ed.2d 158(1983). In order to support a claim of conspiracy to commit a civil rights violation, a plaintiff must establish the existence of such a deprivation; a claim of conspiracy, standing alone, is insufficient to support a finding of liability under section 1983. Britt v. Garcia, 457 F.3d 264, 269-70 (2d Cir.2006); Leon v. Murphy, 988 F.2d 303, 311 (2d Cir.1993) (collecting cases).

Plaintiffs conspiracy claim, if existing at all, appears to rest entirely upon an e-mail from defendant Babula, a treatment assistant, to defendant Barboza, the director of the SOTP at CNYPC, dated October 20, 2006, which plaintiff construes as a concerted effort to have plaintiffs parole violated. Lane Aft (Dkt. No. 84-2) Exh. C, p. 12. In the e-mail Babula expresses his concerns relating to plaintiffs continuing threatening conduct and goes on to say, "Sharon if there is a way to get this man violated, and you could do it, you need to..."Id. While this e-mail reflects defendant Babula's safety concerns about plaintiffs continued presence at CNYPC, it is not sufficient to raise a question of fact precluding summary judgment dismissing plaintiffs claim of conspiracy.

*30 I note that because I have not found that plaintiffs complaint states a sustainable claim for deprivation of a constitutional right, his conspiracy claim is likewise subject to dismissal for failure to state a cause of action. Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir.1997). Moreover, plaintiff has offered only conclusory allegations that defendants acted in a wilful manner, culminating in an agreement, understanding or meeting of the minds, to violate plaintiffs rights, and for this reason as well his claim of conspiracy fails.

2. Section 1985

Plaintiffs complaint also alleges violation of 42 U.S.C. § 1985. To sustain a cause of action for conspiracy to violate civil rights under section 1985(3), a plaintiff must allege and demonstrate that defendants acted with racial or other class-based animus in conspiring to deprive the plaintiff of his or her equal protection of the laws, or of equal privileges and immunity secured by law. United Brotherhood of Carpenters & Joiners, Local 610, AFL-CIO v. Scott, 463 U.S. 825, 834-39, 103 S.Ct. 3352, 3359-61, 77 L.Ed.2d 1049 (1983); Gagliardi v. Village of Pawling, 18 F.3d 188, 194 (2d Cir.1994); Gleason v. McBride, 869 F.2d 688, 694 (2d Cir.1989); Patterson v. County of Oneida, No. 5:00-CV-1940, 2002 WL 31677033, at *4 (N.D.N.Y. Oct.30, 2002) (Hurd, J.), aff'd in relevant part, 375 F.3d 206 (2d Cir.2004); Benson v. United States, 969 F.Supp. 1129, 1135-36 (N.D.III.1997) (citing, inter alia, United Brotherhood, 463 U.S. at 434-37); see also LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 427 (2d Cir.1995). A plaintiff asserting a claim under section 1985(3) need not necessarily offer proof of an explicit agreement; a conspiracy can, in the alternative, be evidenced circumstantially, through a showing that the parties had a "tacit understanding to carry out the prohibited conduct.'" LeBlanc-Sternberry, 67 F.3d at 427 (quoting United States v. Rubin, 844 F.2d 979, 984 (2d Cir.1988)). This notwithstanding, in order to properly plead such a claim, a plaintiff must make more than "conclusory, vague, or general allegations of conspiracy." Sommer v. Dixon, 709 F.2d at 175; Williams v. Reilly, 743 F.Supp. 168, 173 (S.D.N.Y.1990) (" [u]nsubstantiated, conclusory, vague or general allegations of a conspiracy to deprive constitutional rights are not enough to survive [even] a motion to dismiss"). "[D]iffuse and expansive allegations are insufficient, unless amplified by specific instances of misconduct." Ciambriello v. County of Nassau, 292 F.3d 307, 325 (2d Cir.2002) (quoting Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.1993)). Moreover, it is well settled that a plaintiff attempting to establish a claim under section 1985(3) must demonstrate that the defendant under consideration acted with classbased, invidiously discriminatory animus. Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 266-68, 113 S.Ct. 753, 758-759, 122 L.Ed.2d 34(1993).

*31 Plaintiffs claim of conspiracy under section 1985 fails for the same reasons that require dismissal of his conspiracy claim alleged under section 1983. Plaintiffs section 1985 claim is also subject to dismissal based upon the fact that plaintiff has produced no evidence of any class-based discriminatory animus.

In view of the foregoing, I recommend that defendants' motion as to plaintiffs conspiracy claims be granted, and that plaintiffs conspiracy claims be dismissed.[32]

IV. SUMMARY AND RECOMMENDATION

Plaintiff asserts a variety of claims in his complaint relating to his involuntary commitment to CNYPC in September and October of 2006. Having carefully reviewed the extensive record before the court and considered both plaintiffs motion for partial summary judgment and defendants' cross motion for summary judgment, I find that defendants are entitled to qualified immunity with regard to plaintiffs claim that he was committed to CNYPC in violation of his right to procedural due process[33] and that defendants are entitled to immunity under the Eleventh Amendment for all of plaintiff's claims against them in their official capacities and for alleged violations of the ADA in their individual capacities, and that such claims should therefore be dismissed. As to plaintiff's remaining claims under the ADA, I conclude that he has failed to prove any violation of his rights under Title II of that statute, and that these claims should also be dismissed on the merits, as a matter of law. In addition, I find that plaintiff cannot state a claim under the Eighth Amendment for conditions arising out of his confinement in CNYPC, and that he has failed to establish claims under the Fourteenth Amendment for failure to protect and/or intervene, medical indifference, or excessive use of force, and that these claims therefore are similarly subject to dismissal. Likewise, I have determined that plaintiff has failed to establish that he was denied access to the courts, that defendants' retaliated against him, or that he was otherwise denied his First Amendment rights, including by defendant Beebe's alleged failure to investigate, and accordingly recommend that all First Amendment claims asserted by Lane be dismissed. Because I find that plaintiff has failed to establish a constitutional violation or violation of the ADA, plaintiff's claims of conspiracy as well as those for supervisory liability against defendants Carpinello, Sawyer and Barboza are also subject to dismissal. Additionally, I find that plaintiff has failed to produce any evidence of a conspiracy, or of the personal involvement of Carpinello, Sawyer and Bathoza, and therefore recommend dismissal of plaintiffs conspiracy claims and those against Carpinello, Sawyer and Bathoza on this basis as well. Accordingly, it is hereby respectfully

RECOMMENDED that plaintiffs motion for partial summary judgment (Dkt. No. 57) be DENIED, defendants' cross motion for summary judgment (Dkt. No. 79) be GRANTED, and plaintiffs complaint be DISMISSED in its entirety.

*32 NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court within 1EN days. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a) and 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir.1993).

It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.

Attorneys and Law Firms

David McChesney, Marcy, NY, pro se.

Hon. Andrew M. Cuomo, Office of Attorney General, State of New York, Dean J. Higgins, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.

REPORT AND RECOMMENDATION

DAVID E. PEEBLES, United States Magistrate Judge.

*1 Plaintiff David McChesney, a convicted sex offender who has been civilly committed to the Central New York Psychiatric Center ("CNYPC") or ("Center") for in-patient sex offender treatment, has commenced this action pursuant to 42 U.S.C. § 1983 claiming that he was deprived of his civil rights during the course of his confinement at the Center. In his complaint plaintiff recites three instances on which he was assaulted by fellow patients on two separate days, asserting that the attacks resulted from defendants' failure to properly protect him from harm in violation of his constitutional rights. Plaintiff's complaint seeks declaratory and injunctive relief, as well as awards of compensatory and punitive damages.

Currently pending before the court is a motion by the defendants seeking judgment dismissing plaintiff's claims against them, both on the merits and based upon the lack of any showing of their personal involvement in the constitutional violations alleged. For the reasons set forth below I recommend defendants' motion, which plaintiff has not opposed, be granted.

I. BACKGROUND [1]

Plaintiff, a convicted sex offender, was involuntarily committed to the care and custody of the New York State Office of Mental Health ("OMH"), and designated to the CNYPC on or about December 6, 2007, pursuant to the mandates of the New York Mental Hygiene Law Article 10.[2] Complaint (Dkt. No. 1) ¶ 3; see also McChesney v. Hogan, No. 9:08-CV-1186 (NAM/DEP), Dkt. No. 23 at pp. 4-5. The Center is an adult psychiatric facility located in Marcy, New York, with a 210 bed maximum security inpatient capacity from which the 150 bed Sexual Offender Treatment Program ("SOTP") is operated. Defendants' Local Rule 7.1(a)(3) Statement (Dkt. No. 34-1) ¶¶ 1-2.[3] During the times relevant to his claims, plaintiff was assigned to unit 304, located within a Motivation On Deck ("MOD") wing. Bill Decl. (Dkt. No. 34-8) ¶ 6. Residents are assigned to MOD units based upon a history of violence, threats of violence, or other chronic treatment interfering behaviors, and are treated in a setting which permits more intense containment and observation. Defendants' Local Rule 7.1(a)(3) Statement (Dkt. No. 34-1) ¶ 19.

On March 19, 2008 plaintiff became involved in an altercation with another patient at the Center.[4] Complaint (Dkt. No. 1) ¶¶ 15-17; Defendants' Local Rule 7.1(a)(3) Statement (Dkt. No. 34-1) ¶¶ 20-27. The two were separated by staff members, and plaintiff was escorted to a side room. Complaint (Dkt. No. 1) ¶¶ 17-18. Defendants' Local Rule 7.1(a)(3) Statement (Dkt. No. 34-1) ¶ 27. Prior to the incident, plaintiff had no prior difficulties with the fellow patient. Defendants' Rule 7.1(a)(3) Statement (Dkt. No. 34-1) ¶ 28.

Later that day plaintiff returned to the day room, where the earlier altercation had occurred, and while there was struck by another patient. Complaint (Dkt. No. 1) ¶¶ 19-21; Defendants' Local Rule 7.1(a)(3) Statement (Dkt. No. 34-1) ¶¶ 30-39. The two patients were separated, and plaintiff was placed in a secure location from 4:00 p.m. until 10:00 p.m. for his own protection. Complaint (Dkt. No. 1) ¶ 22; Defendants' Local Rule 7.1(a)(3) Statement (Dkt. No. 34-1) ¶ 40.

*2 A second, seemingly unrelated incident occurred on April 29, 2008 when plaintiff became embroiled in a verbal dispute with a fellow resident in charge of handing out extra packets of sugar for the evening meal. Complaint (Dkt. No. 1) ¶ 25; Defendants' Local Rule 7.1(a)(3) Statement (Dkt. No. 34-1) ¶¶ 42-56. Although the oral confrontation subsided, the resident with whom plaintiff had words later came up from behind plaintiff and struck him in the back of the head, knocking him unconscious and requiring that he undergo emergency medical treatment at a local hospital. Complaint (Dkt. No. 1) ¶¶ 26-30. Defendants' Local Rule 7.1(a)(3) Statement (Dkt. No. 34-1) ¶¶ 56-57.[5] As a result of the incident plaintiff suffers from residual affects of the head injury including head and neck pain and memory loss. Complaint (Dkt. No. 1) ¶¶ 31-32, 38-40.

II. PROCEDURAL HISTORY

Plaintiff commenced this action on May 28, 2008. Dkt. No. 1. Named as defendants in plaintiff's complaint are Michael Hogan, Ph.D., Commissioner of the New York OMH; Donald Sawyer PhD., the Executive Director of the CNYPC; Terri Maxymillian, a licensed doctoral psychologist and the director of the SOTP;[6] Corey Connelly, the Chief of Security at the Center; Charmine Bill, R.N., a Registered Nurse and a treatment team leader at the CNYPC; William Owen, the Chief of Security at the CNYPC; and Regina Anderson, R.N., also a treatment team leader at the Center.[7] Complaint (Dkt. No. 1) ¶¶ 5-12; Defendants' Local Rule 7.1(a)(3) Statement ¶¶ 6-14. Plaintiff's complaint asserts a single cause of action, complaining of defendants' failure to protect him from harm while involuntarily detained at the Center. See generally Plaintiff's Complaint (Dkt. No. 1).

Following joinder of issue and the completion of discovery, which included the taking of plaintiff's deposition, on October 6, 2009 the defendants moved for summary judgment dismissing plaintiff's claims in their entirety. Dkt. No. 34. Despite passage of the October 26, 2009 deadline for responding, plaintiff has failed to file any papers in opposition to defendants' motion, which is now ripe for determination and has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1) (B) and Northern District of New York Local Rule 72.3(c). See also Fed.R.Civ.P. 72(b).

III. DISCUSSION

A. Plaintiff's Failure to Oppose Defendants' Motion

Before turning to the merits of plaintiff's claims, a threshold issue to be addressed is the legal significance, if any, of his failure to oppose defendants' summary judgment motion, and specifically whether that failure automatically entitles defendants to summary judgment dismissing plaintiff's complaint.

This court's rules provide that

[w]here a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the non-moving party's failure to file or serve any papers as this Rule requires shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause is shown.

*3 N.D.N.Y.L.R. 7.1(b)(3). Undeniably, pro se plaintiff's are entitled to some measure of forbearance when defending against summary judgment motions. See Jemzura v. Public Serv. Comm'n, 961 F.Supp. 406, 415 (N.D.N.Y.1997) (McAvoy, C.J.). The deference owed to pro se litigants, however, does not extend to relieving them of the ramifications associated with Local Rule 7.1(b)(3). Robinson v. Delgado, No. 96-CV-169, 1998 WL 278264, at *2 (N.D.N.Y. May 22, 1998) (Pooler, J. & Hurd, M.J.); Cotto v. Senkowski, No. 95-CV-1733, 1997 WL 665551, at *1 (N.D.N.Y. Oct. 23, 1997) (Pooler, J. & Hurd, M.J.); Wilmer v. Torian, 980 F.Supp. 106, 106-07 (N.D.N.Y.1997) (Pooler, J. & Hurd, M.J.).[8] Accordingly, absent a showing of good cause defendants' unopposed summary judgment motion should be granted, if determined to be facially meritorious. See Allen v. Comprehensive Analytical Group, Inc., 140 F.Supp.2d 229, 231-32 (N.D.N.Y.2000) (Scullin, C.J.); Leach v. Dufrain, 103 F.Supp.2d 542, 545-46 (N.D.N.Y.2000) (Kahn, J.).

It should also be noted that the plaintiff's failure to properly oppose defendants' summary judgment motion is not without further consequences. By failing to submit papers in opposition to their motion, plaintiff has left the facts set forth in defendants' Local Rule 7.1(a)(3) Statements unchallenged, thus permitting the court to deem facts set forth in the defendants' statement of material facts not in dispute to have been admitted based upon his failure to properly respond to that statement.[9] See Elgamil v. Syracuse Univ., No. 99-CV-611, 2000 WL 1264122, at *1 (N.D.N.Y. Aug. 22, 2000) (McCurn, S.J.) (listing cases); see also Monahan v. New York City Dep't of Corrs., 214 F.3d 275, 292 (2d Cir.2000) (discussing district courts' discretion to adopt local rules like 7.1(a)(3)).

Based upon plaintiff's failure to oppose defendants' motion I recommend that the court review the motion for facial sufficiency, accepting defendants' assertions of facts as set forth in their Local Rule 7.1(a)(3) Statement as uncontroverted, and that the motion be granted if determined to be facially meritorious.[10]

B. Summary Judgment Standard

Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, summary judgment is warranted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir.2004). A fact is "material", for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.2005) (citing Anderson ). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. " Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

*4 A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n. 4, 106 S.Ct. at 2511 n. 4; Security Ins., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material issue of fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Though pro se plaintiff's are entitled to special latitude when defending against summary judgment motions, they must establish more than mere "metaphysical doubt as to the material facts. " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); but see Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir.1999) (noting obligation of court to consider whether pro se plaintiff understood nature of summary judgment process).

When deciding a summary judgment motion, a court must resolve any ambiguities and draw all inferences from the facts in a light most favorable to the nonmoving party. Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir.1998). The entry of summary judgment is warranted only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. See Building Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir.2002) (citation omitted); see also Anderson, 477 U.S. at 250, 106 S.Ct. at 2511 (summary judgment is appropriate only when "there can be but one reasonable conclusion as to the verdict").

C. Merits of Plaintiff's Claim

The essence of plaintiff's claim is that the defendants failed to take appropriate measures to protect him from harm at the hands of the fellow patients who attacked him during the course of the two incidents at issue. In their motion, defendants maintain that no reasonable factfinder could conclude, when applying the requisite standard, that defendants violated plaintiff's constitutional rights during the course of those events.

Plaintiff's claim in this action purports to be brought under both the Eighth Amendment and the due process clause of the Fourteenth. The Eighth Amendment prohibits cruel and unusual punishment of those convicted of crimes. Youngberg v. Romeo, 457 U.S. 307, 312, 102 S.Ct. 2452, 2456, 73 L.Ed.2d 28 (1982). When plaintiff was released by the DOCS into the SOTP program at the Center, he had completed serving his prison term, subject to release on parole, and was no longer a prison inmate; as such, the Eighth Amendment is not applicable under the circumstances. Id. Plaintiff's claims are therefore subject to analysis under the due process clause of the Fourteenth Amendment. Dove v. City of New York, No. 03-CV-5052, 2007 WL 805786, at * 7 (S.D.N.Y. March 15, 2007) (citing cases).

*5 Patients who are involuntarily committed unquestionably are entitled to certain rights under the Fourteenth Amendment; as the Supreme Court has noted, "[i]f it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the involuntarily committed... in unsafe conditions." Youngberg, 457 U.S. at 315-16, 102 S.Ct. at 2458. "The Supreme Court explained that when the State takes a person into its custody and holds [her] there against [her] will, the Constitution imposes upon it a corresponding duty to assume responsibility for [her] safety and general well-being.'" Beck v. Wilson, 377 F.3d 884, 889 (8th Cir.2004) (quoting DeShaney v. Winnebago Couty Dep't of Soc. Servs., 489 U.S. 189, 199-200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)). Plaintiff's claim of failure to protect, although framed as arising under the Eighth Amendment, relates to allegedly unsafe conditions encountered while he was involuntarily confined at CNYPC, and must be analyzed within the framework of the Fourteenth Amendment.

The Second Circuit has yet to articulate the proper standard to be applied when evaluating a failure to protect claim arising out of an involuntary commitment, and there appears to be some uncertainty regarding the matter. The Supreme Court "established [in Youngberg ] that involuntarily committed mental patients have substantive due process rights, ... [and]... held that only an official's decision that was a substantial departure from accepted professional judgment, practice or standards' would support a substantive due process claim brought by an involuntarily committed mental patient." Vallen v. Carrol, No. 02 Civ. 5666(PKC), 2005 WL 2296620, at * 8 (S.D.N.Y. Sept.20, 2005) (quoting Youngberg, 457 U.S. at 323). In Vallen, the court examined Youngberg and whether the substantial departure standard evolving from that decision should be applied where the plaintiff, who was a patient involuntarily committed to the Mid-Hudson Forensic Psychiatric Facility, alleged that he was subjected to violence and that the defendants, security hospital treatment assistants, failed to prevent those incidents. Distinguishing Youngberg, the court stated that

[u]nlike the defendants in Youngberg, the defendants here are low-level staff members. The nature of such an employee immediately addressing patient-on-patient assault or theft differs significantly from higher-level decisions like patient placement and the adequacy of supervision. For the latter decisions, it is readily possible to apply a test based on professional judgment, practice or standards. In this case, professionals made none of the challenged decisions, and thus the "substantial departure" test has no applicability.

Vallen, 2005 WL 2296620, at *8.

The court in Vallen went on to acknowledge that the general approach to substantive due process claims asserted under section 1983 requires that a plaintiff show that the defendants' actions, taken under color of state law, involved "conduct intended to injure [plaintiff] in some way unjustified by [any]... governmental interest and most likely rise to the conscience-shocking level". 2005 WL 2296620, at *8 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S.Ct. 1708, 1718, 140 L.Ed.2d 1043 (1998)). Ultimately, however, the court suggested that this test would result in an unduly heavy burden being placed upon a plaintiff and also would be inconsistent with the state's central role in supervising and caring for the involuntarily committed. Id. at *9. Instead, citing Lewis and analogizing the plaintiff's rights to those of pre-trial detainees, the court suggested its agreement with the "deliberate indifference" standard employed in such circumstances by the Eighth Circuit.[11] Id. at *9 (citing Moore v. Briggs, 381 F.3d 771, 773 (8th Cir.2004)).

*6 In Dove v. City of New York , a claim similar to that now raised by McChesney was interposed by the plaintiff, another involuntarily committed individual, arising out of altercations with other patients. Rejecting the applicability of the Eighth Amendment to the plaintiff's circumstances, the court likewise acknowledged the lack of certainty as to whether the claim against the defendants should be measured by a "substantial departure" or "deliberate indifference" standard. Dove v. City of New York, No. 03-CV-5052, 2007 WL 805786, at *8 (E.D.N.Y. Mar. 15, 2007). Citing Vallen, the court failed to reach the issue of which standard would apply, finding that under either no reasonable factfinder could conclude that defendants violated plaintiff's constitutional rights. Id.

I am inclined to agree with the Vallen court's conclusion that the "standard of deliberate indifference'" best accommodates the constitutional concerns implicated in connection with section 1983 claims brought by involuntarily committed mental patients based on alleged failures to protect them in violation of their substantive due process rights.[12] Vallen, 2005 WL 2296620, at * 9. Deliberate indifference, for purposes of the Eighth Amendment, exists if an official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he [or she] must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970 1979, 128 L.Ed.2d 811 (1994); Leach v. Dufrain, 103 F.Supp.2d 542, 546 (N.D.N.Y.2000) (citing Farmer, 511 U.S. at 837, 114 S.Ct. at 1979); Waldo v. Goord, No. 97-CV-1385, 1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998) (same). "In Lewis, the Court equated deliberate indifference for substantive due process and Eighth Amendment purposes." Moore, 381 F.3d at 774 (citing Lewis, 523 U.S. at 849-40, 118 S.Ct. 1708, 140 L.Ed.2d 1043).

As in Vallen and Dove, however, I find it unnecessary to resolve the issue of which standard may here be appropriate since under any of the potentially applicable standards plaintiff's claim of failure to protect must fail. Plaintiff's complaint describes two occasions on which he was allegedly assaulted or attacked by other patients while at the CNYPC. There is no evidence that prior to those incidents plaintiff complained with regard to either of the other civilly committed individuals involved. Nor is there any indication in the record, including the extensive notes of plaintiff's daily treatment, of circumstances which should have alerted the defendants and others at the Center to the potential for danger. Accordingly, regardless of which standard is ultimately applied, there is no evidence in the record suggesting that any defendant knew of and disregarded a serious risk of harm to plaintiff, or that any defendant substantially departed from accepted practices or standards, and no reasonable factfinder could conclude that defendants' actions deprived plaintiff of a constitutionally - protected right. I therefore recommend dismissal of plaintiff's claims on the merits.

D. Personal Involvement

*7 In their motion, defendants also assert that McChesney's claims against them are subject to dismissal based upon his failure to alleged their personal involvement in the claimed failure to protect him from harm.

Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under section 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991) and McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978)). In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show some tangible connection between the constitutional violation alleged and that particular defendant. See Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.1986).

Many of the defendants named in plaintiff's complaint are nowhere referenced in the body, which contains the factual allegations giving rise to his claims. Certain of them appear to have been named exclusively based upon their supervisory capacities. A supervisor, however, cannot be liable for damages under section 1983 solely by virtue of being a supervisor; there is no respondeat superior liability under section 1983. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.2003); Wright, 21 F.3d at 501. Culpability on the part of a supervisory official for a civil rights violation can only be established where that individual 1) has directly participated in the challenged conduct; 2) after learning of the violation through a report or appeal, has failed to remedy the wrong; 3) created or allowed to continue a policy or custom under which unconstitutional practices occurred; 4) was grossly negligent in managing the subordinates who caused the unlawful event; or 5) failed to act on information indicating that unconstitutional acts were occurring. Iqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir.2007), rev'd on other grounds sub nom., Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); see also Richardson, 347 F.3d at 435; Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); Wright, 21 F.3d at 501.

The only named defendants against whom specific allegations of fact are made are defendants Bill, Owens, and Maxymillian. Plaintiff alleges that following the first incident, defendant Bill arrived on the scene and, after discussing the incident, sent him back into the day room where he was again assaulted, although by a different individual. Complaint (Dkt. No. 1) ¶ 19. Plaintiff further alleges that defendant Bill placed plaintiff's antagonist back in the same ward as plaintiff, although there is no allegation that any further incidents involving that person thereafter occurred. Id. ¶ 36. These allegations fail to suffice with regard to establishing defendant Bill's personal involvement in a failure to protect the plaintiff from harm.

Defendant Terry Maxymillian is also specifically referenced in plaintiff's complaint, but only as having ordered defendant Bill to remove plaintiff from Ward 304 after the individual who had previously attacked him was reassigned there. Id. ¶ 47. This allegation does not form an integral part of plaintiff's failure to protect claims.

*8 The sole remaining defendant named in the body of plaintiff's complaint is defendant Owens who, it is alleged, was assigned to take photographs of the plaintiff following the first incident. Complaint (Dkt. No. 1) ¶ 23. Once again, this does not appear to implicate defendant Owens in any claimed failure to protect McChesney from harm.

It is true that, in a wholly conclusory fashion, plaintiff alleges at one point in his complaint that "[u]pon information and belief, Defendants knew or reasonably should have known, from the Single Detail Progress Notes in both [the second assailant's] and [the third attacker's] clinical records what each of them did to vulnerable people, as if the people were victims of prey."Complaint (Dkt. No. 1) ¶ 43. This is allegation, however, falls in the category of potentially shocking, but since it is lacks any factual support, it has no meaning. Barr v. Abrams, 810 F.2d 358, 363 (2d cir.1987).

Simply stated, plaintiff's complaint does not contain sufficient factual allegations establishing plausible claims of personal involvement in his failure to protect cause of action on the part of any of the defendants named in his complaint. I therefore recommend dismissal of plaintiff's claims against each of the defendants on this independent, alternative basis.

IV. SUMMARY AND RECOMMENDATION

Plaintiff's complaint asserts that defendants failed to protect him from known harm while confined within the CNYPC to receive sex offender treatment. The record now before the court, however, contains no evidence from which a reasonable factfinder could conclude that the defendants knew or should have reasonably been aware of the exposure of plaintiff to danger, and that they were deliberately indifferent to that potential threat. The record also fails to establish a basis to conclude that any of the defendants in this case should be held personably liable for the constitutional deprivations alleged. Accordingly, it is hereby respectfully

RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 34) be GRANTED, and that plaintiff's complaint in this action be dismissed in all respects, with leave to replead.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir.1993).

It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.

Attorneys and Law Firms

Mohmude Parks, Attica Correctional Facility, Attica, New York, Plaintiff pro se.

Michael A. Cardozo, Corporation Counsel for the City of New York, By: Hillary A. Frommer, New York, New York, for Defendants.

MEMORANDUM DECISION

CHIN, J.

*1 In this case, prose plaintiff Mohmude Parks claims that the defendants, the City of New York, the New York City Department of Corrections ("DOC"), Martin F. Horn, the Commissioner of DOC, Rafael Olivo, the Deputy Warden of Rikers Island Correctional Facility ("Rikers"), Captain Michelle Echeverria, Captain Jonelle Shivraj, and Officer Regina East, are responsible for the injuries plaintiff sustained when he was stabbed by another inmate while incarcerated at Rikers. Specifically, plaintiff alleges that his constitutional rights under the Eighth and Fourteenth Amendments were violated because Horn, Olivo, East, Echeverria, and Shivraj failed to protect him from the attack. In addition, plaintiff contends that Olivo and Horn were negligent in the performance of their duty to train and East, Echeverria, and Shivraj failed to provide adequate medical care for his injuries. Plaintiff brings this action for damages pursuant to 42 U.S.C. § 1983.

Defendants move for summary judgment under Fed.R.Civ.P. 56 on the following grounds: plaintiff failed to establish that defendants acted with deliberate indifference in violation of his constitutional rights; defendants provided plaintiff with immediate medical treatment; defendants Horn and Olivo had no personal involvement in the incident; the individual defendants are entitled to qualified immunity; DOC is a non-suable entity; and plaintiff has failed to establish municipal liability against the City. For the reasons set forth below, the motion is granted.

BACKGROUND

A. Facts

Construed in the light most favorable to Parks, the facts are as follows:[1]

Following his arrest and arraignment for first-degree robbery in December 2002, Parks was detained at Rikers, initially at the Adolescent Reception and Detention Center ("ARDC") and then at the Anna M. Kross Center ("AMKC").[2] (Frommer Decl. Exs. A-F). Plaintiff remained a pre-trial detainee at Rikers, housed at the Quadrant Upper 11 dormitory ("Quad 11") of the AMKC on August 3, 2003. (Comp1. ¶¶ 20-22).

At approximately 12:40 p.m. on August 3, 2003, plaintiff was involved in a fight with three other inmates, inmate Gonzalez, inmate Reily, and inmate Goines, in Quad 11. (Frommer Decl. Exs. F, J; Compl. ¶ 26). At the time of the incident, East was assigned as the "post meal relief officer" for Quad 11. As post meal relief officer, her responsibilities included monitoring sixty-two inmates in two separate units. As East was conducting a tour of Quad 11, she heard a commotion coming from the rear of the unit. She ran to the location of the commotion where she observed plaintiff, Gonzalez, and another inmate surrounded by a crowd of inmates. East ordered the crowd to disperse but was ignored. East then observed Gonzalez attempt to stab Reily in the face with a writing pen. Reily ducked and Gonzalez stabbed plaintiff in the eye with the pen. East immediately activated her personal alarm ("PBA") and told the "A" officer to call the control room and summon medical assistance. East then observed Parks walking through the crowd with a pen in his left eye. (Frommer Decl. Ex. F; East Aff. ¶¶ 4-12; Compl. ¶¶ 23-28).

*2 The facility probe team, medical staff, and other responding officers arrived at Quad 11 "within seconds" of the fight. (Frommer Decl. Ex. F; East Aff. ¶ 13). East and the responding officers locked all inmates in Quad 11 who were not involved in the fight in their cells. (Frommer Decl. Ex. F; East Aff. ¶ 16). Echevierra, who was the supervisor of the building in which Quad 11 is located at the time of the incident, went to Quad 11 upon hearing of the disturbance over the loudspeaker. (Echeverria Aff. ¶¶ 5-7, 14-16). By the time she arrived, the fight had ended. ( Id. ¶¶ 14-16). Shivraj, who was on duty but not a supervisor of the floor on which Parks was housed at the time of the incident, also responded to Quad 11. (Shivraj Aff. ¶¶ 3-7).

When Shivraj arrived, she observed plaintiff, with what appeared to be a pen stuck in his eye, standing up and talking to other captains. ( Id. ¶¶ H). Shivraj briefly questioned inmate Reily, and he informed Shivraj that Parks and other inmates had attacked him and tried to stab him with a pen. ( Id. ¶¶ 12-13, 15; Frommer Decl. Ex. F). Because Reily ducked, Gonzalez had stabbed Parks with the pen instead of Reily. (Shivraj Aff. ¶ 15; Frommer Decl. Ex. F). Shivraj escorted Reily, who had been stabbed in the back, to the clinic without speaking with Parks. (Shivraj Aff. ¶¶ 17-19; Frommer Decl. Ex. F). Parks was quickly removed from the area by Captain Glass and taken to the clinic for immediate medical attention. (Frommer Decl. Ex. F; East Aff. ¶ 14). Inmates Gonzalez and Goines were handcuffed and taken to the intake office. (Frommer Decl. Ex. F).

At approximately 1:15 p.m., Dr. Hasan examined plaintiff at the clinic at Rikers. Hasan determined that plaintiff, who was described as alert and oriented, had been stabbed in the left eye ball with a pen, which remained stuck in his eye. At approximately 1:20 p.m., plaintiff was transferred to Elmhurst Hospital by the Emergency Services Unit with a writing pen still embedded in his eye. At Elmhurst Hospital, the pen was surgically removed from plaintiff's eye ball. As a result of this incident, plaintiff is now completely blind in his left eye. (Frommer Decl. Exs. F, J; Compl. ¶¶ 29-30).

Echeverria investigated the incident, obtaining statements from East, Shivraj, and other inmates in the housing area at the time of the incident. Those statements revealed that the altercation began because plaintiff and Gonzalez were attempting to steal inmate Reily's jewelry. During the fight, Reily sustained two puncture wounds in the upper back and several scratches and bruises on his face and head. He was also transported to Elmhurst hospital for treatment. A search team recovered a six-inch long metal object near the slop sink in Quad 11, which was the weapon used to stab Reily. Following the investigation, infractions were issued against all inmates involved in the fight. Plaintiff was rearrested and charged with (1) gang assault in the first decree, (2) assault in the second degree, (3) promoting prison contraband in the second degree, (4) assault in the third decree, and (5) criminal possession of a weapon in the fourth degree. Plaintiff was subsequently indicted for all of those charges in the Supreme Court, Bronx County. He pled guilty in full satisfaction of the indictment. (Frommer Decl. Exs. F, N; Echeverria Aff. ¶¶ 22-26; East Aff. ¶¶ 20-21; Complaint ¶ 33).

*3 Quad 11 was fully staffed on August 3, 2003. (DiCarlo Aff. ¶ 8; Olivo Aff. ¶ 15). During her tours of Quad 11 on August 3, 2003, Echeverria did not observe any problems with plaintiff or observe plaintiff involved in any altercations with any other inmate. (Echeverria Aff. ¶¶ 6-12). At no time prior to this incident did plaintiff complain to any of the defendants that he feared for his safety. Likewise, at no time did he request to be transferred from Quad 11 or to be separated from Gonzalez, Reily, or Goines. Prior to August 3, 2003, East, Echeverria, and Shivraj had never witnessed plaintiff fighting with any other inmates, including Gonzalez, Reily, and Goines. (Echeverria Aff. ¶¶ 33-38; East Aff. ¶¶ 23-29; Shivraj ¶¶ 22-29). Olivo, who was the Acting Warden of Rikers on August 3, 2003, had no personal knowledge of plaintiff before the date of the incident. Neither Horn nor Olivo ever received any correspondence from plaintiff indicating that he feared for his safety nor were they aware of any reason to believe there was a risk of foreseeable violence to plaintiff (Olivo Aff. ¶¶ 3-10, 13, 16-19; DiCarlo Aff. ¶¶ 2-6). Following plaintiff's discharge from the hospital, he was separated from the other inmates involved in the fight. (Olivo Aff. ¶ 14; Echeverria ¶ 32).

B. Procedural History

Plaintiff filed this action on March 30, 2004, alleging the following claims: (1) failure to protect against East, Echeverria, Shivraj, Horn, Olivo, and "John Doe"; (2) negligent performance of duties against Horn, Olivo, and "John Doe"; (3) failure to provide first aid and obtain qualified medical treatment against East, Echeverria, and Shivraj; (4) false arrest against Olivo, Echeverria, Officer Terrence Felix, and East and (5) malicious prosecution against Olivo, Echeverria, Felix, and East. Following plaintiff's guilty plea to the acts charged in the underlying criminal indictment arising out of the August 3, 2003, altercation, the claims for malicious prosecution and false arrest were dismissed with prejudice on consent.[3] (1/26/05 Order). The parties engaged in discovery, and, on November 21, 2005, defendants filed this motion for summary judgment.

On December 19, 2005, only two days before opposition papers were due, plaintiff's attorney, Michael P. Mays, informed the Court that plaintiff had requested that he do no further work on this matter.[4] By order dated December 29, 2005, Mays & Associates was relieved as counsel and plaintiff's time to oppose the motion for summary judgment was extended until January 23, 2006. By order dated January 4, 2006, I granted plaintiff until February 23, 2006, to oppose the motion.

Plaintiff's letter to Mays indicated that he had retained the law firm of Ginsberg & Broome, P.C. The Court contacted Ginsberg & Broome, which provided the Court with the history of the firm's relationship with Parks by letter dated December 29, 2005. The letter indicated that Parks and his mother had contacted Ginsberg & Broome a short time after the altercation, but they never retained the firm. Following a series of letters from Ginsberg & Broome and the City and orders of the Court, Ginsberg & Broome eventually decided not to appear in this case. Other than by a March 21, 2006, letter from plaintiff and an undated letter from plaintiff's mother, Ernestine Parks, received in chambers on February 1, 2006, plaintiff has not opposed the motion.

DISCUSSION

A. Applicable Law

1. Summary Judgment Standard

*4 Summary judgment will be granted when "there is no genuine issue as to any material fact and... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). Summary judgment is inappropriate if, resolving all ambiguities and drawing all inferences against the moving party, there exists a dispute about a material fact "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); accord Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir.1991). To defeat a motion for summary judgment, however, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus., 475 U.S. at 586. There is no issue for trial unless there exists sufficient evidence in the record favoring the party opposing summary judgment to support a jury verdict in that party's favor. Anderson, 477 U.S. at 249. As the Court held in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (internal citations omitted). Further, the "non-moving party may not rely on conclusory allegations or unsubstantiated speculation" to show that a genuine issue of fact exists. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998).

Where a prose litigant is involved, the court has an obligation to "read the pleadings of a prose plaintiff liberally and interpret them to raise the strongest arguments they suggest." ' McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)). Further, " prose litigant[s] should be given special latitude in responding to a summary judgment motion." Knowles v. New York City Dep't of Corr., 904 F.Supp. 217, 220 (S.D.N.Y.1995) (quotation marks and citation omitted). Nonetheless, the same standards for summary judgment apply. Id.

2. Section 1983 and Challenges to Prison Conditions

To state a § 1983 claim, a plaintiff must allege a violation of his constitutional or statutory rights by a person acting under the color of state law. 42 U.S.C. § 1983. To be liable under § 1983, the defendant must have been personally involved in the alleged violation. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994); Tolliver v. Wilson, No. 99 Civ. 9555(JGK), 2000 WL 1154311, at *5 (S.D.N.Y. Aug. 14, 2000). Personal involvement, in this context, means "direct participation, or failure to remedy the alleged wrong after learning of it, or creation of a policy or custom under which unconstitutional practices occurred, or gross negligence in managing subordinates." Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.1996); see also Wright, 21 F.3d at 501. "Liability may not be premised on the respondeatsuperior or vicarious liability doctrines, nor may a defendant be liable merely by his connection to the events through links in the chain of command." Prince v. Edwards, No. 99 Civ. 8650(DC), 2000 WL 633382, *6 (S.D.N.Y. May 17, 2000) (internal citation and quotation marks omitted).

*5 The Eighth Amendment, which applies to states under the Fourteenth Amendment due process clause, guarantees freedom from cruel and unusual punishment. Under the Eighth Amendment, prison officials are required "to take reasonable measures to guarantee the safety of inmates in their custody." Hayes v. New York City Dep't of Corr., 84 F.3d 614, 620 (2d Cir.1996); see also Farmer v. Brennan, 511 U.S. 825, 832 (1994); Knowles, 904 F.Supp. at 220. "Prison officials have a duty to protect prisoners from violence at the hands of other inmates since being violently assaulted in prison is simply not part of the penalty that criminal offenders pay for their offenses against society.'" Lee v. Artuz, 96 Civ. 8604(JGK), 2000 WL 231083, at *4 (S.D.N.Y. Feb. 29, 2000) (quoting Farmer, 511 U.S. at 834). Nevertheless, "not... every injury suffered by one prisoner at the hands of another... translates into constitutional liability for prison officials responsible for the victim's safety." Farmer, 511 U.S. at 834.

Pre-trial detainees are protected by the due process clause of the Fourteenth Amendment rather than the Eighth Amendment, which applies only to convicted prisoners. See, e.g, Weyant v. Okst, 101 F.3d 845, 856 (2d Cir.1996); Vallen v. Carrol, 02 Civ. 5666(PKC), 2005 WL 2296620, *8 (S.D.N.Y Sept. 20, 2005). Because "it is plain that an unconvicted detainee's rights are at least as great as those of a convicted prisoner, " Weyant, 101 F.3d at 856, courts have applied the same "deliberate indifference" test developed under the Eighth Amendment to claims involving pre-trial detainees arising under the Fourteenth Amendment. See Heisler v. Kralik, 981 F.Supp. 830, 835 n. 1, 836 (S.D.N.Y.1997).

To successfully challenge prison conditions under the Eighth or Fourteenth Amendments, a prisoner must show that the prison official or state actor, acting with deliberate indifference to the prisoner's safety, subjected the prisoner to a sufficiently serious deprivation. See McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999). This requires a showing of both objective and subjective elements. With respect to the objective element, the alleged deprivation must be so serious as to be "considered cruel and unusual." Crawford, 143 F.Supp.2d at 258-59 (S.D.N.Y.2001) (citing Farmer, 511 U.S. at 834 (stating that a "prison official's act or omission must result in the denial of the minimal civilized measure of life's necessities")). With respect to the subjective element, "the prison official involved must have acted with a sufficiently culpable state of mind." McPherson, 174 F.3d at 280 (quoting Farmer, 511 U.S. at 834).

B. Application

1. Claims Against East, Echeverria, and Shivraj

a. Failure to Protect

Plaintiff alleges that East, Echeverria, Shivraj, Olivo, and "John Doe" violated his Eighth and Fourteenth Amendment rights by failing to foresee the altercation and failing to prevent plaintiff's injuries. Failure-to-protect claims are treated as challenges to conditions of confinement and, accordingly, plaintiff must demonstrate deliberate indifference. See Lee, 2000 WL 231083, at *3 (citing Edney v. Karrigan, 69 F.Supp.2d 540, 544 n. 1 (S.D.N.Y.1999)). Thus, to succeed on a claim for failure to protect, plaintiff must show that, objectively, the conditions of his incarceration posed a substantial risk of serious harm, and, subjectively, the named defendants acted with deliberate indifference. See Farmer, 511 U.S. at 834. Here, a reasonable jury could not find that East, Echeverria, or Shivraj acted with the requisite state of mind.

*6 In failure-to-protect cases, "a prison official acts with deliberate indifference and thus has sufficient culpable intent if he has knowledge that an inmate faces a substantial risk of serious harm and he disregards that risk by failing to take reasonable measures to abate the harm.'" Lee, 2000 WL 231083, at *5 (quoting Hayes, 84 F.3d at 620). In this case, Parks never informed East, Echeverria, or Shivraj that he feared for his safety, nor did he request a transfer. East, Echeverria, and Shivraj never observed Parks in a fight with any inmate, including the inmates involved in this incident. Indeed, there is nothing concrete in the record to suggest that East, Shivraj, or Echeverria had any reason to suspect plaintiff faced a risk of harm or that they could have done anything to prevent the incident. To the contrary, it appears that Parks was involved in a plan to rob Reily-he pled guilty to this crime. In other words, he was an instigator. Further, the evidence demonstrates that the officers responded quickly and appropriately to the altercation. Accordingly, defendants' motion to dismiss the failure-to-protect claim against East, Echeverria, and Shivraj is granted.

b. Failure to Provide First Aid and Obtain Proper Medical Treatment

Plaintiff alleges that East, Echeverria, and Shivraj failed to provide first aid and obtain proper medical treatment. Allegations that prison officials failed to provide adequate medical care likewise require that plaintiff show deliberate indifference. To show deliberate indifference in this context, the Second Circuit recently held that a

prisoner must prove that the alleged deprivation of medical treatment is, in objective terms, "sufficiently serious"-that is, the prisoner must prove that his medical need was "a condition of urgency...." Second, the prisoner must prove that the charged official acted with a "sufficiently culpable state of mind".... This requires that the prisoner prove that the charged official "kn [ew] of and disregard[ed] an excessive risk to inmate health or safety." Johnson v. Wright, 412 F.3d 398, 403 (2d Cir.2005) (internal citations omitted). Thus, mere negligence will not suffice. Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996).

Plaintiff offers no evidence, and only his conclusory allegations, to support his claim that defendants acted with deliberate indifference. Certainly, plaintiff's medical condition was "a condition of urgency"; plaintiff is permanently blind in his left eye as a result of this incident. Nevertheless, no reasonable jury could find that defendants acted with the requisite culpable state of mind. East immediately signaled her alarm and requested medical assistance. Medical help arrived with the probe team almost immediately. Within moments, Shivraj and Echeverria responded to Quad 11 as well. By 1:15 p.m., approximately half an hour after the incident, plaintiff had been examined by the doctor at Rikers, and five minutes later he was transported to the hospital for surgery. Plaintiff has not presented any evidence from which a jury could conclude that the defendants disregarded the urgency of the situation or acted with the requisite culpable state of mind. Therefore, the claim for failure to provide adequate medical care is also dismissed.

2. Claims Against Horn and Olivo

*7 Plaintiff alleges that Horn and Olivo failed to protect him from harm and negligently trained East, Echeverria, and Shivraj. In actions under § 1983, a supervisor is not automatically liable for the acts of his subordinates; rather, to be liable, a supervisor must have been personally involved in the acts. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994). A plaintiff may demonstrate that a supervisor was personally involved by presenting evidence that:

(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report of appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995). As discussed, however, a plaintiff cannot rely on conclusory allegations alone to defeat a motion for summary judgment. See, e.g., Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998).

Neither Horn nor Olivo were "personally involved, " either directly or indirectly, in the alleged constitutional violations. Indeed, Horn and Olivo had no knowledge of Parks prior to the August 3, 2003, incident. Before the altercation, plaintiff never complained to Horn or Olivo that he feared for his safety nor did he give any other indication that he might be at risk. Further, after the incident, plaintiff was moved to a different housing unit. Nevertheless, Plaintiff claims that Horn and Olivo inadequately staffed Quad 11, failed to train East, Shivraj, and Echeverria, and created a policy and custom under which Parks was attacked. In support of these claims, however, he offers no evidence and only conclusory allegations. Accordingly, because plaintiff has not shown any facts by which a reasonable jury could find that Horn or Olivo were personally involved in the incident, plaintiff's claims against Horn and Olivo are dismissed.

3. Claims Against DOC and the City of New York

Defendants also move for summary judgment on the bases that the individual defendants are entitled to qualified immunity, plaintiff has failed to establish municipal liability against the City, and DOC is a non-suable entity. Because I have already dismissed the claims against Horn, Olivo, East, Echeverria, and Shivraj, I need not reach defendants' argument that the individual defendants are entitled to qualified immunity. Plaintiff has not offered any evidence that any of the alleged violations of his rights was the result of a policy or custom of New York as he must to establish municipal liability under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978). Accordingly, the claims against the City are dismissed. Further, because it is "well settled that an agency of the City of New York cannot be sued independently, " the claims against DOC are also dismissed. Winkfield v. New York City Dept of Corr., 97 Civ. 2183(HB), 1998 WL 778390, *1 (S.D.N.Y. Nov. 6, 1998) (dismissing action against DOC).

CONCLUSION

*8 For the foregoing reasons, defendants' motion for summary judgment is granted and plaintiff's claims are dismissed. The Clerk of the Court shall enter judgment dismissing the complaint, with prejudice but without fees or costs.

SO ORDERED.

MEMORANDUM AND ORDER

CASTEL, J.

*1 Plaintiff Barry Lee Vallen brings this action, pursuant to 42 U.S.C. § 1983, alleging that he was the victim of multiple patient-to-patient assaults and deprivations of property during the time that he resided at the Mid-Hudson Forensic Psychiatric Center ("Mid-Hudson"), a facility operated by an agency of the state of New York. In a Memorandum and Order dated September 2, 2004, I dismissed defendants New York State Office of Mental Health and Mid-Hudson on the basis of the state's constitutionally-based immunity from suit. Vallen v. Mid-Hudson Forensic Office of Mental Health, 2004 WL 1948756 (S.D.N.Y. Sept. 2, 2004). I concluded that the Complaint set forth allegations sufficient to state claims against the individual defendants for deliberate indifference to confinement conditions that were seriously and dangerously unsafe. Id. at *3. I held that plaintiff's claim did not arise under the Eighth Amendment because he was not serving a term of imprisonment pursuant to a conviction, but, generously construed, his prose Complaint could be read as alleging that persons acting under color of state law had deprived him, as an involuntarily detained person, of rights protected by the Fourteenth Amendment. Id.

Discovery in this action is now closed. The defendants have moved for summary judgment dismissing the plaintiff's claims. For the reasons explained below, the defendants' motion is granted.

Background

The following facts are taken from plaintiff's pleadings, his sworn deposition testimony or are otherwise not disputed. Where multiple inferences can be drawn from the facts, I have considered only the one most favorable to Mr. Vallen, the non-movant.

In 1984, the plaintiff was charged with two counts of second-degree murder in connection with the death of his parents. (Vallen Dep. at 169) Plaintiff pleaded not guilty by reason of mental illness or defect and was diagnosed as a paranoid-schizophrenic. (Vallen Dep. at 169-71) A Justice of the New York Supreme Court, Orange County, found that, at that point in time, the plaintiff suffered from a dangerous mental illness and ordered that he be committed to a psychiatric facility. (Vallen Dep. at 170) Subsequently, plaintiff was discharged to outpatient care on two occasions, but in each instance he was later recommitted. (Vallen Dep. at 172-84) From April 18, 1997 through June 14, 2000, plaintiff was an inpatient at Mid-Hudson. (Dickson Aff. ¶ 5)

In an order dated July 22, 2002, Chief Judge Michael B. Mukasey dismissed plaintiff's deprivation of property claim and ruled that the State of New York provided adequate post-deprivation remedies for the recovery of lost property. (July 22, 2002 Order at 3) He also ruled that the Complaint inadequately detailed the assault claims, and dismissed those claims without prejudice. (July 22, 2002 Order at 2, 4-5) Plaintiff filed an Amended Complaint ("AC") dated January 24, 2003.

The AC alleges that, during his three years of treatment at Mid-Hudson Forensic Psychiatric Facility, the plaintiff was subjected to violence and threats of violence, and that the individual defendants promoted or failed to prevent these incidents. The individual defendants were employed as security hospital treatment assistants ("SHTAs") who were responsible for assisting psychiatric patients in their day-to-day needs and activities. (DeLusso Aff. ¶¶ 2-3)

*2 Each of the incidents set forth in the AC are discussed below. Generally described, the plaintiff alleges that the defendants either encouraged or failed to intervene in violent attacks that other patients inflicted upon the plaintiff. According to the AC, the defendants were aware that various Mid-Hudson patients had violent histories, and placed these patients in close proximity to the plaintiff On other occasions, the AC alleges that the defendants displayed pleasure at the attacks on plaintiff that allegedly took place. Plaintiff notes, by way of contrast, that since the year 2000 he has resided at a facility in Rochester, New York, and has never been threatened or assaulted.

Helpfully, as part of their motion papers, the defendants have organized the allegations set forth in the Complaint into sixteen distinct incidents or clusters of incidents. Solely for the purposes of facilitating evaluation and discussion of the incidents, I will refer to the sixteen incidents by the number and descriptive title employed in the defendants' motion papers. (Appendix to this Memorandum and Order) I do not in any way treat the defendants' submission as having any evidentiary quality to it.

Summary Judgment Standard

Summary judgment "shall be rendered forthwith 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). It is the initial burden of a movant on a summary judgment motion to come forward with evidence on each material element of his claim or defense, demonstrating that he or she is entitled to relief. A fact is material if it "might affect the outcome of the suit under the governing law..." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The evidence on each material element must be sufficient to entitle the movant to relief in its favor as a matter of law. Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004).

When the moving party has met this initial burden and has asserted facts to demonstrate that the non-moving party's claim cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial, " and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Fed.R.Civ.P. 56(e). In raising a triable issue of fact, the nonmovant carries only "a limited burden of production, " but nevertheless "must demonstrate more than some metaphysical doubt as to the material facts, ' and come forward with specific facts showing that there is a genuine issue for trial.'" Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir.2004) (quoting Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir.1993)).

An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. Caution is particularly warranted when considering a summary judgment motion in a discrimination action, since direct evidence of discriminatory intent is rare, and often must be inferred. Forsyth v. Fed'n Empl. & Guidance Serv., 409 F.3d 565, 569 (2d Cir.2005). The Court must "view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party." Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir.1995) (quotations and citations omitted); accord Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). In reviewing a motion for summary judgment, the court must scrutinize the record, and grant or deny summary judgment as the record warrants. See Fed.R.Civ.P. 56(c). In the absence of any disputed material fact, summary judgment is appropriate. Id.

*3 The defendants have served the prose plaintiff with the notice explaining the manner in which a party may oppose summary judgment, as required by Local Rule 56.2. I am mindful of the latitude afforded to a prose party opposing a summary judgment motion. See Forsyth, 409 F.3d at 570 ("special solicitude" owed to prose litigants opposing summary judgment); Shabtai v. U.S. Dep't of Educ., 2003 WL 21983025, at *5 (S.D.N.Y. Aug. 20, 2003) (obligation to construe leniently prose opposition papers on a summary judgment motion). However, a party's prose status does not alter the obligation placed upon the party opposing summary judgment to come forward with evidence demonstrating that there is a genuine dispute regarding material fact. Miller v. New York City Health & Hosp. Corp., 2004 WL 1907310, at *9 (S.D.N.Y. Aug. 25, 2004).

Discussion

1. Statute of Limitations Defense

The applicable limitations period for Section 1983 actions is found in the state statute of limitations for personal injury actions. Owens v. Okure, 488 U.S. 235, 249-50 (1989). "Accordingly... New York's three-year statute of limitations for unspecified personal injury actions, New York Civil Practice Law and Rules § 214(5), governs section 1983 actions in New York." Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir.1997). The statute of limitations begins to accrue "when the plaintiff knows or has reason to know of the injury which is the basis of his action.'" Id. (quoting Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir.1980)).

This action was filed in the prose office on December 10, 2001, although the Complaint was not formally accepted for filing until July 22, 2002. The timeliness of the Complaint for statute of limitations purposes is measured from the delivery to the prose office on December 10, 2001. SeeOrtiz v. Cornetta, 867 F.2d 146 (2d Cir.1999); Toliver v. Sullivan County, 841 F.2d 41 (2d Cir.1988). It is undisputed that some of the events alleged in the AC occurred more than three years prior to such delivery, i.e. prior to December 10, 1998.

Here, plaintiff argues that he is entitled to tolling under New York law by reasons of insanity. Once the defendant demonstrates that the claim facially falls within the limitations period, the plaintiff, not the defendant, bears the burden of proof on tolling. See Doe v. Holy See (State of Vatican City), 17 A.D.3d 793, 794 (3d Dep't 2005); Assad v. City of New York, 238 A.D.2d 456, 457 (2d Dep't 1997).

CPLR 208 provides for tolling when "a person entitled to commence an action [was] under a disability because of infancy or insanity at the time the cause of action accrues...." While the words of the statute, taken at face value, might appear to be broad enough to apply to any person suffering from a debilitating mental illness, the New York Court of Appeals has interpreted the statute more narrowly. McCarthy v. Volkswagen of Am., 55 N.Y.2d 543 (1982). The McCarthy Court reviewed the legislative history of the provision and concluded that the legislature intended that CPLR 208 be "narrowly interpreted" Id. at 548. In the words of the Court: "we believe that the Legislature meant to extend the toll for insanity to only those individuals who are unable to protect their legal rights because of an over-all inability to function in society." Id. at 548-549. New York courts have consistently applied the McCarthy standard to claims of tolling by reason of insanity. See, e.g., Eberhard v. Elmira City School Dist., 6 A.D.3d 971, 973 (3d Dep't 2004) ( McCarthy standard not satisfied by claim of post-traumatic stress syndrome); Burgos v. City of New York, 294 A.D.2d 177, 178 (1st Dep't 2002) ("The doctor's affirmation... was vague and conclusory in asserting that plaintiff's dementia and psychotic disorder [are] due to multiple medical conditions [that] have existed for many years and are permanent, ' and thus insufficient to raise an issue of fact" on CPLR 208 tolling under the McCarthy standard).

*4 The standard articulated in McCarthy has two components. First, the party must be "unable to protect [his] legal rights" and, second, the reason he is unable to protect his legal rights is "because of an over-all inability to function in society". I assume for the purposes of this motion that, during the period for which plaintiff seeks tolling, he had "an over-all inability to function in society."In this regard, plaintiff has had several "retention hearings" that have resulted in findings that Vallen should remain in an institutional setting. (Vallen Decl. ¶ 1) However, I still must consider whether plaintiff has raised a triable issue of fact as to his ability to protect his legal rights during the period for which he seeks tolling.

As part of their summary judgment burden, the defendants have come forward with evidence of Vallen's direct, personal and vigorous pursuit of his legal rights in judicial proceedings instituted during the period for which he claims tolling. In November 1998, plaintiff commenced an action in the Court of Claims of the State of New York alleging that the state had been negligent in permitting seven inmate assaults on him over the course of one and one-half years. (Peeples Aff., Ex. C) He was then familiar with the necessity of timely filing a claim, as evidenced by his handwritten complaint dated November 16, 1998, which recites as follows: "This claim is filed within 3 years after the claim accrued, as required by law."(Peeples Aff., Ex. C)[1] Vallen v. State of New York, Claim No. 100141 (N.Y. Ct. Cl. Sept. 1, 1999). He filed a second Court of Claims action in or around July 1999 alleging that the state had been negligent by permitting a patient identified as C.J. to initiate a physical attack.[2] (Peeples Aff. Ex. D) Vallen v. State of New York, Claim No. 100803 (N.Y.Ct.Cl. Apr. 17, 2001). Plaintiff filed a third Court of Claims action in July 1999, alleging that the state was negligent in permitting the theft of his personal property; in that action, he set forth a detailed list of each item of lost property and its value, including a "suit for court" ($279) and a pair of ostrich leather western boots ($350) (Peeples Aff. Ex. E) Vallen v. State of New York, Claim No. 100804 (N.Y.Ct.Cl. Apr. 17, 2001). Also in July 1999, he filed a Section 1983 action in this District alleging that his constitutional rights had been violated. (Peeples Aff. Ex. I) Vallen v. Connelly, 99 Civ. 9947(SAS).[3] In March 2000, plaintiff filed a fourth suit in the Court of Claims alleging that falsified claims had been levied against him. (Peeples Aff. Ex. F) Vallen v. State of New York, Claim No. 102160 (N.Y.Ct.Cl. Sept. 1, 2000). In toto, between November 1998 and March 2000, Vallen, proceeding prose, filed five separate lawsuits in two different fora in an effort to enforce and protect his legal rights. In two of the pleadings, he affirmatively expressed an understanding of the applicable statute of limitations. The 1999 federal court action evinces an awareness of a federal remedy and the procedural means to invoke it. Cf. Cerami v. City of Rochester Sch. Dist., 82 N.Y.2d 809, 813 (1993) (considering, inter alia, the numerous lawsuits filed by the party claiming toll in rejecting such a claim).

*5 In response to the defendants' evidence submitted on their summary judgment motion, plaintiff has been unable to raise a triable issue of fact as to his ability to protect his legal rights during the period for which he claims tolling. The plaintiff has had a full opportunity to conduct discovery. In his papers in opposition to summary judgment, he has exhibited an understanding of the requirements of Rule 56, which were explained to him in the Local Rule 56.2 Notice. Yet, nowhere does he address his ability or inability to protect his rights during the time he has been in a mental health facility. Indeed, rather than rebut the defendants' evidence, plaintiff notes that, during the period for which he seeks tolling, he "pressed charges and the patient C.J. was convicted and sent to Orange County jail."(Pro Se Affidavit in support to deny [sic] summary judgment) The closest he comes to responding to the defendant's argument is the assertion that he lost some or all of his lawsuits on the basis of "simple technicalities", thereby demonstrating that he was unable to protect his rights. (Pro Se Mot. to Den. Summ. J. at 1) But it does not follow that because other claims he asserted were dismissed on various grounds that, therefore, he was unable to assert the claims that he belatedly asserted in this action. He also asserts that the express reference to the statute of limitations in two of his filings "was only a mere statement I read in a book...." (Pro Se Mot. to Den. Summ. J. at 1) The source of his awareness of his rights is not relevant to this motion.

To the state employees who are named as individual defendants in plaintiffs Section 1983 claim, it is no small matter to allow a stale claim to stand when there is no basis in the record for tolling. These individuals would be required to defend themselves against allegations concerning events that occurred long ago brought by a plaintiff who has amply demonstrated his ability to file a lawsuit in a timely manner in other instances where he has felt aggrieved.

I conclude that the plaintiff has failed to raise a triable issue of fact on his claim that he was "unable to protect [his] legal rights" for the period commencing from November 18, 1998, the date of his first Court of Claims Complaint. On the issue of tolling, the plaintiff bore the burden of proof and, in response to defendant's motion, he failed to come forward with evidence sufficient to require a trial on this issue. Holy See (State of Vatican City), 17 A.D.3d at 794; Assad, 238 A.D.2d at 457. However, there remains the question of which incidents occurred more than three years prior to the commencement of this action, i.e. prior to December 10, 1998.

Plaintiff has stated that in the "first few months" after his May 18, 1997 assignment to Mid-Hudson, defendant Gonzales predicted that violence would be "coming [his] way." (Vallen Dep. at 216) This is Incident No. 1 in the Appendix. According to the AC, during his first months at Mid-Hudson, defendant SHTA Carrol predicted that the plaintiff would have some accidents, defendant SHTA Malfatone was aware that patient John Doe No. 1 had violent tendencies, and defendant SHTA Gonzales failed to intervene during an assault that John Doe No. 1 made against the plaintiff (AC at 3, 5, 8; Vallen Tr. at 216, 219-20) Additionally, on November 8, 1998, a patient identified in the AC as "Reshawn" physically attacked the plaintiff in front of defendant Gantz, who allegedly failed to intervene. (Complaint at 17) This is Incident No. 9 in the Appendix. One to two weeks later, defendant SHTA Gantz allegedly threatened and punched the plaintiff. (Vallen Dep. Tr. at 56-59) This is Incident No. 10 in the Appendix. Sometime between the Reshawn incident and the Gantz incident, Malfatone instructed the plaintiff to stop drinking from a water fountain, and knocked him to the ground. (Vallen Dep. Tr. at 230) This is Incident No. 13 in the Appendix.

*6 The plaintiff does not dispute that these incidents all occurred between May 18, 1997 and late November 1998. The three-year statute of limitations for these incidents accrued, and plaintiff's claims were thus time-barred, prior to the commencement of this action on December 10, 2001.[4] The defendants' summary judgment motion is granted as to Incident Nos. 1, 9, 10 and 13 set forth in the Appendix, and this portion of the plaintiff's action is dismissed. Though claims based upon these occurrences are barred by the statute of limitations, I will consider the underlying facts to the extent they are relevant to plaintiff's opposition to the other prongs of defendants' motion. See Jute v. Hamilton Sanstrand Corp., Docket No. 04-3927 (2d Cir. August 23, 2005) (considering such facts in the context of Title VII).

2. Lack of Showing of a Defendant's Personal Involvement

The defendants, each of whom is individually accused of having deprived plaintiff of constitutionally-protected rights, argue that certain of the plaintiff's claims should be dismissed because there is no evidence of personal involvement in the events giving rise to the asserted claims. "It is well settled in this Circuit that personal 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)).

There are five ways in which a plaintiff may show the personal involvement of a defendant in a constitutional deprivation: (1) the defendant directly participated in the alleged constitutional violation, (2) the defendant, having been informed of a violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which constitutional violations occurred, or allowed the continuation of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed wrongful acts, or (5) the defendant displayed deliberate indifference to the inmates' rights by failing to act on information that unconstitutional acts were occurring. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995). Liability may not be anchored in a theory of respondeatsuperior. Collins v. City of Harker Heights, 503 U.S. 115, 122 (1992)."The bare fact that [a defendant] occupies a high position in the [institutional] hierarchy is insufficient to sustain [a] claim." Colon, 58 F.3d at 874.

The defendants identify six separate incidents for which they claim that the plaintiff can set forth no facts that indicate personal involvement on the part of the various defendants. The plaintiff alleges that a Mid-Hudson patient, C.J., stabbed him with a pen near his eye while SHTA Nelson and John Doe defendants Nos. 2 and 3 were supposed to be supervising. (AC at 11-12) This is Incident No. 4 in the Appendix. SHTA Nelson was never served and is not a party to this action, and the plaintiff has been unable to identify John Does Nos. 2 and 3.[5] (Vallen Dep. Tr. at 106-07) As such, his claims arising from this incident (No. 4) are dismissed.

*7 The plaintiff alleges that in a separate incident, patient C.J. approached him, stabbed him near the eye, and attempted to gouge out his eye with his fingers. (AC at 14) This is Incident No. 5 in the Appendix. Plaintiff asserts that John Doe defendants Nos. 1, 2 and 3 observed this incident and failed to intervene. (AC at 14) However, the plaintiff is unable to identify John Does Nos. 1, 2, and 3. (Vallen Dep. Tr. at 120-21) Because there is no evidence of personal involvement on the part of any defendant remaining in this action, plaintiff's claim arising from this incident (No. 5) is dismissed.

In a third incident involving patient C.J., plaintiff alleges that two Mid-Hudson employees permitted C.J. to assault him in a facility dining room. (AC at 10-11) This is Incident No. 6 in the Appendix. Plaintiff alleges that afterward, defendant Carrol laughed about the incident and expressed regret that he had not been present to observe the assault. (AC at 11) However, the plaintiff does not identify any employee who observed the assault, and the alleged after-the-fact laughter and comments of defendant Carrol, while callous and distasteful, do not rise to the level of a constitutional violation. Cf. Moncrieffe v. Witbeck, 2000 WL 949457, at *3 (N.D.N.Y. June 29, 2000) (allegation that corrections officer laughed at plaintiff does not state an Eighth Amendment claim). Plaintiff's claims arising out of this incident (No. 6) are dismissed.

Next, the plaintiff asserts that another Mid-Hudson patient, A.A., had a long history of attacking people, and that Mid-Hudson staff intentionally placed A.A. in the plaintiff's proximity. (AC at 15-16) This is Incident No. 7 in the Appendix. Plaintiff alleges that SHTA Nelson positioned A.A. close to the plaintiff, and that A.A. attacked him. (AC at 15-16) However, Nelson was not served in this action, and the plaintiff has identified no other Mid-Hudson employees who were involved in the incident. Because there are no facts in the record before me indicating that any defendant to this action was personally involved in or supervised A.A.'s attack, plaintiff's claim arising out of this incident (No. 7) is dismissed.

The plaintiff claims that SHTA March shouted at him and pushed him in a bathroom. (AC at 23) This is Incident No. 11 in the Appendix. However, March was not served in this action, and none of the defendants who are parties to this action were implicated in these events. Because there are no facts in the record before me indicating that any defendant to this action was personally involved in the attack, plaintiffs claim arising out of this incident (No. 11) is dismissed.

Lastly, defendants move for summary judgment seeking the dismissal of plaintiff's claims arising from three incidents loosely raised in the AC. Plaintiff alleged that another patient, N., kicked and punched him, and that staff members laughed because N. was an older man. (AC at 24-25) This is Incident No. 14 in the Appendix. In another incident, the plaintiff alleges that an unidentified staff member gave another patient a key to plaintiff's locker, leading that patient to steal $35. (AC at 25) This is Incident No. 15 in the Appendix. In the third incident, the plaintiff alleges that patient B. punched him in a bathroom. (AC at 25) This is Incident No. 16 in the Appendix. However, the plaintiff has not identified by name any members of the Mid-Hudson staff who were involved in these incidents. As a result, all claims arising from these three incidents (Nos.14-16) are dismissed as to all defendants.

3. Defendants' summary judgment Motion as to plaintiff's remaining claims

*8 Defendants move for summary judgment dismissing plaintiffs remaining claims and assert that, in response to their motion, plaintiff has come forward with no facts from which a reasonable fact-finder could conclude that that he was deprived of any rights under the Fourteenth Amendment. In Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982), the Court concluded that an involuntarily committed person has substantive rights under the Due Process Clause of the Fourteenth Amendment to be free from unsafe conditions of confinement. The Court reasoned that "[i]f it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the involuntarily committed-who may not be punished at all-in unsafe conditions." Id. See also DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 199 (1989) ("[T]he substantive component of the Fourteenth Amendment's Due Process Clause requires the State to provide involuntarily committed mental patients with such services as are necessary to ensure their reasonable safety' from themselves and others.").

Although Youngberg established that involuntarily committed mental patients have substantive due process rights, the standard articulated in the opinion for adjudicating claims based on those rights does not control here. Like Mr. Vallen, the plaintiff in Youngberg had been involuntarily committed to a state institution-albeit one for mentally retarded individuals and had experienced violent attacks from other residents while staying there. See Youngberg, 457 U.S. at 310. The plaintiff alleged that the institution's director and two supervisors had known, or should have known, that the plaintiff was suffering injuries and that they failed to institute appropriate preventive measures. Id. The Court held that only an official's decision that was a "substantial departure from accepted professional judgment, practice or standards" would support a substantive due process claim brought by an involuntarily committed mental patient. Id. at 323. This standard reflected the Court's conclusion that a decision in this setting, "if made by a professional, is presumptively valid." Id. In defining its use of the term "professional", the Court appeared to include nonprofessionals acting under the direction of professional supervisors. Id. at 323 n. 30. Unlike the defendants in Youngberg, the defendants here are low-level staff members. The nature of such an employee immediately addressing patient-on-patient assault or theft differs significantly from higher-level decisions like patient placement and the adequacy of supervision. For the latter decisions, it is readily possible to apply a test based on professional judgment, practice or standards. In this case, professionals made none of the challenged decisions, and thus the "substantial departure" test has no applicability.

In addition, the general approach to substantive due process claims appears inappropriate in this case. Usually, in order to establish a substantive due process violation for purposes of Section 1983, a plaintiff must show that the defendant's actions taken under color of state law involved "conduct intended to injure [plaintiff] in some way unjustifiable by any government interest [and]... most likely to rise to the conscience-shocking level."County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998). However, for pretrial detainees protected by the Fourteenth Amendment, but not the Eighth Amendment, the Court has applied the lower standard of "deliberate indifference" to Section 1983 claims arising from state officials' inattention to their medical needs.[6] In Lewis, the Court reasoned:

*9 "Since it may suffice for Eighth Amendment liability that prison officials were deliberately indifferent to the medical needs of their prisoners, it follows that such deliberately indifferent conduct must also be enough to satisfy the fault requirement for due process claims based on the medical needs of someone jailed while awaiting trial."
Id. at 850 (citations omitted). As in the case of pretrial detainees, the involuntary commitment of mentally ill individuals does not constitute punishment for purposes of the Eighth Amendment. See DeShaney, 489 U.S. at 199 ("[T]he State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law.") (citations omitted). However, the Fourteenth Amendment still protects these individuals, including the plaintiff in this case. See, e.g., Lombardo v. Stone, 2001 WL 940559, *7 n. 7 (S.D.N.Y. Aug. 20, 2001) (rejecting the Eighth Amendment as a basis for claims of a patient at a psychiatric facility who had not been convicted of a crime and analyzing them instead under the Fourteenth Amendment). Moreover, the state's central role in supervising and caring for the involuntarily committed-like the pretrial detainees considered in Lewis-suggests that the conscience-shocking standard demands too much of such plaintiffs' substantive due process claims.

I am inclined to agree with the Eighth Circuit that the standard of "deliberate indifference" is the correct one for Section 1983 claims brought by involuntarily committed mental patients and based on alleged failures to protect them that violated their substantive due process rights. See Moore v. Briggs, 381 F.3d 771, 773 (8th Cir.2004). However, I do not need to reach the issue because whether the defendants' actions are measured under the "conscience-shocking", the "substantial departure" or the "deliberate indifference" standard, the result is the same: no reasonable fact-finder could conclude based upon the evidence, drawing all inferences in plaintiff's favor, that the defendants' conduct either shocked the conscience, was deliberately indifferent or substantially departed from accepted professional judgment, practices or standards.

Defendants argue that four incidents (Nos.2, 3, 8, 12) set forth in the AC should be dismissed because there are no triable issues of fact that support plaintiff's claim. I address them each in turn.

First, the plaintiff asserts that defendant Jones and that SHTA John Does Nos. 1 and 2 permitted patient C.J. to circle the plaintiff, and that C.J. then punched the plaintiff in the face several times. (Vallen Dep. Tr. at 89-96; AC at 9-10) This was the first alleged assault that C.J. inflicted upon the plaintiff, and is designated as Incident No. 2 in the Appendix. The defendants assert that summary judgment is warranted because the plaintiff cannot point to any facts supporting a conclusion that defendant Jones had any advance knowledge of C.J.'s assault upon plaintiff or was deliberately indifferent to the assault once he observed it. The defendants point to Vallen's deposition testimony that Jones "flew out from behind the desk and threw [C.J.] to the ground or something" when he saw that C.J. was attacking the plaintiff. (Vallen Dep. Tr. at 96) There is no dispute that once an attack was underway, Jones actively intervened to stop a physical attack against the plaintiff. After intervening in the attack, Jones told the plaintiff that he saw C.J. "circling you, I knew he was going to do something, and then he did it."(Vallen Dep. Tr. at 95) While such a statement may be open to multiple inferences, this remark standing alone is insufficient to raise a triable issue of fact. Based on the plaintiff's own account, as soon as C.J. began the assault upon plaintiff, defendant Jones immediately intervened and restrained C.J. Defendant Jones's conduct was not indifferent to Vallen's fate but rather proactive and protective of him. Plaintiff's claim does not survive under any of the arguably applicable standards-conscience-shocking conduct, deliberate indifference or substantial departure from accepted judgment standards or practices. Defendants' motion for summary judgment as to this incident (No. 2) is therefore granted.

*10 Next, the defendants assert that summary judgment is appropriate for an incident in which defendant SHTA Leper told Mid-Hudson patient C.J. to enter a bathroom that the plaintiff was using because it would not bother the plaintiff. (AC at 16) This is Incident No. 8 in the Appendix. Defendants assert that summary judgment is appropriate because Leper did not infringe the plaintiff's constitutional rights when he suggested that C.J. enter the bathroom. (Def.'s Mem. 20-21) In opposition, the plaintiff asserts that C.J. posed a risk of violence to him at that time, but he does not indicate that he endured any physical injury from C.J.'s presence. (Opp'n Decl. ¶ 8) However embarrassing this incident may have been to the plaintiff, it does not rise to the level of a Constitutional violation. See, e.g., Rodriguez v. Ames, 287 F.Supp.2d 213, 219-20 (W.D.N.Y.2003) (doctor was not deliberately indifferent to inmate's privacy rights when he conducted examination of inmate's bowel condition in prison cell because of lower privacy baseline in prison facilities); Robinson v. Middaugh, 1997 WL 567961, at *4 (N.D.N.Y. Sept. 11, 1997) ("plaintiff's claims that he was made to shower, dry off with a pillow case, and his private parts exposed due to the wearing of a paper suit', and sleeping on an unsanitized mattress do not rise to the level of deliberate indifference or the wanton infliction of pain."). The deprivation implicated is not sufficiently serious and does not deprive him of the minimal civilized measure of life's necessities. Cf. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The defendant's motion is granted as to this incident (No. 8), and it is dismissed from this case.

Defendants move for summary judgment as to the plaintiff's claims concerning defendant SHTA Brown and Mid-Hudson patient F. This is Incident No. 12 in the Appendix. According to the plaintiff, F. commenced an attack on the plaintiff and began to kick him from behind. (AC at 24) At that point, according to the AC, "S.H.T.A. Brown jumped in to protect the patient who kicked me."(AC at 24) The AC does not assert that S.H.T.A. Brown was responsible for the attack, encouraged the attack, or had foreknowledge of the attack. To the contrary, the record and the allegations indicate only that once an attack was underway, defendant Brown attempted to restrain patient F. from attacking the plaintiff. In his deposition, the plaintiff volunteered that defendant Brown intervened when the plaintiff himself "started to go at [patient F.]." (Vallen Dep. Tr. at 229) Because the record does not support an inference that defendant Brown's conduct shocked the conscience, resulted from deliberate indifference or departed substantially from professional standards or practices, the defendants' motion for summary judgment is granted as to the incident (No. 12), and it is dismissed.

Finally, the defendants' motion for summary judgment is granted as to claims arising from an incident with Mid-Hudson patient S.W. This is Incident No. 3 in the Appendix. Defendants argue that the plaintiff can point to no admissible evidence from which a reasonable fact-finder could find in plaintiffs favor."In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995); see also Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223-24 (2d Cir.1994) ("[T]he moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case."). The plaintiff alleges that he was walking up the staircase when S.W. punched him in the face. (AC at 9-10; Vallen Dep. Tr. at 97-98) He asserts that defendant SHTA Malfatone was present. (Vallen Dep. Tr. at 98) However, there is nothing in the record that shows whether SHTA Malfatone observed the attack and failed to act or intervene, or whether Malfatone was indifferent to the plaintiff's health or safety. As a result, the defendants' summary judgment motion seeking the dismissal of plaintiff's claim based upon this incident (No. 3) is granted because plaintiff has failed to raise a triable issue of fact under any of the applicable standards.

4. Qualified Immunity and Law of the Case

*11 Because claims arising from these incidents are dismissed on other grounds, I do not consider the defendants' contention that defendants Carrol, Jones and Leper are entitled to qualified immunity. Similarly, I need not consider the defendants' contention that the law of the case bars plaintiff from continuing to pursue his lost property claim for the $35 stolen from his locker.

CONCLUSION

The defendants' summary judgment motion is GRANTED. The Clerk is directed to enter judgment in favor of the defendants, and to dismiss this case.

SO ORDERED.

APPENDIX TO MEMORANDUM AND ORDER IN VALLEN V. CARROL, 02 CIV. 5666(PKC)

1. Allegations Based on Events that Occurred During Plaintiff's First Few Months at Mid-Hudson Forensic

SHTA Carrol told plaintiff that he was going to have some accidents. (AC at 3, 5) SHTA Gonzales told Plaintiff that violence was coming his way. (AC at 5) SHTA Gonzales heard patient John Doe # 1 threaten plaintiff, and stood by as patient John Doe # 1 hit plaintiff in the head. (AC at 5) SHTA Malfatone "and other S.H.T.A. staff" were aware that this same patient, John Doe # 1, was violent, but laughed and did nothing when patient John Doe # 1 followed plaintiff to his room and punched him. (AC at 8) The next morning, patient John Doe # 1 came up behind plaintiff at a sink and put a hair pick to his eyes and said that he wanted no more trouble out of plaintiff. (AC at 8) SHTA Gonzales told plaintiff to stop causing trouble. (AC at 8) These events (the "Initial Incidents") allegedly occurred within the first few months of plaintiff's arrival at Mid-Hudson Forensic-within a few months of April 8, 1997. (Vallen Dep. Tr. 216, 219-20)

2. The First Patient C.J. Allegation

SHTA Jones and SHTAs John Doe # 1 and # 2 "let" patient C.J. "circle around" plaintiff until he got behind plaintiff. (AC at 9) Patient C.J. then punched plaintiff in the face and "tried to take [plaintiff's eye out."(AC at 9) Plaintiff does not know who John Doe # 1 and # 2 are. (Vallen Dep. Tr. 96) This was the first time patient C.J. had assaulted plaintiff. (Vallen dep. Tr. at 89-91, 95-96; AC at 9-10)

3. The Patient S.W. Allegation

Patient S.W. punched plaintiff on a staircase, and SHTAs Malfatone and Nelson were there (the "S.W. Incident"). (AC at 9-10)

4. The Second Patient C.J. Allegation

Patient C.J. was on assault precautions in the high observation area in the dayroom. SHTA Nelson and SHTAs John Doe # 2 and # 3 were watching the ward. Patient C.J. walked to where plaintiff was watching television, and stabbed plaintiff near his eye with a pen. (AC at 11-13) Plaintiff cannot identify SHTAs John Doe # 2 and # 3. (Vallen Dep. Tr. 106-07)

5. The Third Patient C.J. Allegation

Patient C.J. took a pen and left the precaution area while SHTAs John Doe # 1, # 2 and # 3 were observing, walked to where plaintiff was seated watching television, stabbed plaintiff near the eye, and tried to gouge plaintiff's eye with his fingers. (AC at 14) Plaintiff cannot identify John Does # 1, # 2 or # 3. (Vallen Dep. Tr. 120-21)

6. The Fourth Patient C.J. Allegation

*12 SHTAs John Doe # 1 and # 2 allowed patient C.J., who was on assault precautions, to leave his line in the dining room, and patient C.J. then assaulted plaintiff while plaintiff was carrying his tray. (AC at 10-11, Vallen Dep. Tr. at 101) Plaintiff cannot identify SHTAs John Doe # 1 or # 2. (Vallen Dep. Tr. at 101) An hour later, SHTA Carrol laughed and said he wished he had been present to watch the assault. (AC at 11)

7. The Patient A.A. Allegation

Unidentified staff "indicated" that plaintiff was "a good target." (AC at 15) Patient A.A. was attacking people, and after SHTA Nelson placed patient A.A. in a chair a few feet from plaintiff, patient A.A. jumped from his chair and attacked plaintiff (AC at 15-16)

8. The Allegation Against SHTA Leper

Plaintiff was in the bathroom, and SHTA Leper told patient C.J. to go into the bathroom because it would not bother plaintiff if patient C.J. went in (the "Leper Bathroom Incident"). (AC at 16-17)

9. The "Reshawn" Allegation

After SHTA Gantz had given plaintiff permission to do laundry, a patient whom plaintiff identifies as "Reshawn" pushed plaintiff in front of Gantz. (AC at 17) Reshawn then punched plaintiff in the mouth. (AC at 17-21) The blow split plaintiff's lip and broke one tooth and loosened another. (Vallen Dep. Tr. at 37-38) Plaintiff received fourteen stitches to his lip. (Vallen Dep. Tr. at 222-23) The Reshawn Incident occurred on November 8, 1998. (Vallen Dep. Tr. at 24; Peeples Aff., Exh. C, at 1)

10. The Gantz Bathroom Allegation

SHTA Gantz threatened plaintiff and punched him in the chest in a bathroom (AC at 21-22; Vallen Dep. Tr. at 56-59) The Gantz Bathroom Incident occurred a week or two after the Reshawn Incident, which occurred on November 8, 1998. Vallen Dep. Tr. at 24, 56-57; Peeples Aff., Exh. C, at 1)

11. The SHTA March Bathroom Allegation

SHTA March came into the bathroom at the Canteen, screamed at plaintiff, and pushed plaintiff across a room. (AC at 23)

12. The SHTA Brown Allegation

Patient F. kicked plaintiff from behind, and SHTA Brown jumped in to protect patient F. because plaintiff "started to go at" patient F. (AC at 24; Vallen Dep. Tr. at 229)

13. The SHTA Malfatone Water Allegation

SHTA Malfatone told plaintiff to stop drinking water from a water fountain in the yard, and came over and knocked plaintiff to the ground. (AC at 24) The Malfatone Water Incident occurred before the Reshawn Incident. (Vallen Dep. Tr. at 231-32)

14. The Patient N. Allegation

Patient N. kicked and punched plaintiff, and unidentified staff laughed because patient N. was an old man. (AC at 24-25) Plaintiff cannot identify the staff members. (AC at 24-25; Vallen Dep. Tr. at 233-35)

15. The $35.00 Allegation

An unidentified staff member gave the key to plaintiff's locker to another patient, who then took $35.00 in quarters from plaintiff's locker (the "$35.00 Incident"). (AC at 25) Plaintiff cannot identify the staff members. (AC at 25; Vallen Dep. Tr. at 235-39)

16. The Patient B. Bathroom Allegation

*13 Patient B. punched plaintiff in the bathroom, and plaintiff chased patient B. out of the bathroom. (AC at 25) Unidentified staff saw plaintiff chasing patient B, but did not see patient B. assault plaintiff in the bathroom. (AC at 25; Vallen Dep. Tr. at 238-39)

[1] [2] [3]

Attorneys and Law Firms

Willie James Yeldon, Marcy, NY, pro se.

Hon. Eric T. Schneiderman, New York State Attorney General, Dean J. Higgins, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.[4]

REPORT-RECOMMENDATION and ORDER

RANDOLPH F. TREECE, United States Magistrate Judge.

*1 Pro se Plaintiff Willie James Yeldon, who is currently confined at the Central New York Psychiatric Center, commenced this action pursuant to 42 U.S.C. § 1983, alleging that the Defendants used excessive force against him and failed to protect him from the use of such excessive force. Dkt. No. 1, Compl. Defendants now bring a Motion for Summary Judgment under Federal Rule of Civil Procedure 56. Dkt. Nos. 41 & 45. Plaintiff opposes the Motion. Dkt. No. 47. For the reasons that follow, this Court recommends that Defendants' Motion be granted in part and denied in part.

I. BACKGROUND

The following facts were derived mainly from the Defendants' Statement of Material Facts, submitted in accordance with this District's Local Rules of Practice, which was not specifically countered nor opposed by Plaintiff. See N.D.N.Y.L.R. 7.1(a)(3) ( "The Court shall deem admitted any facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert. ") (emphasis in original).[5]

At all times relevant to the claims included in the Complaint, Plaintiff was under civil commitment and participating in the sexual offender treatment program at the Central New York Psychiatric Center ("CNYPC") located in Marcy, New York. Dkt. No. 41-2, Defs.' Statement Pursuant to Rule 7.1(a)(3) [hereinafter "Defs.' 7.1 Statement"], at ¶ 1. On November 18, 2009, Plaintiff was moved from Ward 305 to a holding ward side room in Ward 604 for disciplinary reasons and was kept there until the other residents returned from recreational activities. Id. at ¶¶ 15-16. Plaintiff initially resisted his transport to the holding ward by refusing to move, but he eventually consented. See Dkt. No. 45-1, Pl.'s Dep., at pp. 24-25.Plaintiff was very upset that he had to wait in this side room. Defs.' 7.1 Statement at ¶ 17.

At approximately 6:30 p.m., Plaintiff was escorted back to Ward 305 by various Secure Care Treatment Assistants ("TA"), TA Piracha, and Nurse Madia. Id. at ¶ 18; Pl.'s Dep. at p. 28.0n the elevator, Plaintiff told Defendant Piracha that he "didn't want him in [Plaintiff's] face, " and when they arrived on Ward 305, Defendant Madia told Plaintiff to go into the side room. Pl.'s Dep. at pp. 28-29; Defs.' 7.1 Statement at ¶ 19.

Plaintiff claims that when he was in the side room of Ward 305, Defendant TA Davis came into the side room and called in "all of the other [D]efendants... [who] rushed in and threw [Plaintiff] to the floor, started kicking [him] and beating [him]." Pl.'s Dep. at p. 33 ;see also Defs.' 7.1 Statement at ¶ 22. Plaintiff claims this beating lasted about twenty minutes. Defs.' 7.1 Statement at ¶ 35.

Defendants submit evidence claiming that Plaintiff was very upset at his confinement in the side room on Ward 305 and was arguing with Defendant Piracha and loudly threatening the CNYPC staff. Id. at ¶¶ 21 & 25-26.After Piracha left the side room and stood in the hallway, out of Plaintiff's sight, Plaintiff started screaming, "I'm going to kill that little m-f-er" and attempted to push the door to the hallway open. Dkt. No. 41-16, Nicholas Hollenbeck Decl., dated Sept. 21, 2011, at ¶¶ 19-30. As Plaintiff "pointed to Piracha, " and screamed, "I'm going to kill that m-f-er, " he punched Defendant Hollenbeck in the left ear. Id. at ¶¶ 30-31; Defs.' 7.1 Statement at ¶ 30. Other TAs, including Defendant McCann, responded and grabbed Plaintiff and took him to the ground, but it "wasn't a hard takedown." Hollenbeck Decl. at ¶¶ 32-34 & 39; Defs.' 7.1 Statement at ¶¶ 31-33. Plaintiff struggled hard until he was placed in restraints on the bed in the room. Hollenbeck Decl. at ¶¶ 41-46.

*2 Conversely, Plaintiff testified that he did not punch nor hit any of the staff, and that he did not have any particular problem with Defendant Piracha, but rather that the Defendants gathered on this occasion as a "beat-up crew" to assault the Plaintiff. Pl's Dep. at pp. 34-35, 41 & 64.He claimed that he saw "all of the other defendants listed in [his] [C]omplaint" in or around the side room on Ward 305. Id. at p. 39. He also claims that Defendant Madia was the "boss, " such that she would give TAs directions, and that Madia, Crocket, Forstie, Gray, and Delmedico were present but did not hit Plaintiff, and instead "looked the other way and let [the abuse] happen." Id. at pp. 36-37 & 42. In his deposition, Plaintiff specifically names Defendants Ashley, Brennan, Davis, Espinosa, Fairbrother, Fical, Frazier, Hollenbeck, Leonardi, Parrish, Piracha, Searcy, McCann, and Nardoza as participating in the attack. Id. at pp. 43-46. He states that Charmaine Bill, Maxymillian, Morgan, and Sawyer were not present at the time of the assault, and that he sued them solely because of their supervisory roles. See id. at pp. 43-47. He did not know who Defendant Barrett was when asked during his deposition. Id. at p. 44.

Lastly, Plaintiff claims that Defendant Dr. Bahl administered medication to him while he was in restraints. Id. at p. 47. However, Defendants submit evidence that Dr. Bahl did not see Plaintiff after he was transferred from Ward 604 back to Ward 305, nor did he have any role in Plaintiff's restraints or medication. See Dkt. No. 41-8, Kumar Bahl, M.D., Decl., dated Sept. 21, 2011. The evidence shows that Plaintiff's injuries were relatively minor. See Pl.'s Dep. at pp. 62-64 (describing headaches treated with pain medication, swelling and bruises that have gone away, and a treatment of ointment for abrasions on Plaintiff's legs); Defs.' 7.1 Statement at ¶ 36. Plaintiff refused any medical evaluation or treatment after he was released from his restraints, but wanted his "slightly swollen" left ear area and "superficial abrasions [that looked liked] scrapes as if from going up a ladder" on his right lower leg documented. See Dkt. No. 41-19, Stephanie Oldick Decl., dated Sept. 26, 2011.

II. DISCUSSION

A. Standard of Review

Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits... 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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); accord F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir.1994). The moving party bears the burden to demonstrate through "pleadings, depositions, answers to interrogatories, and admissions on file, together with [] affidavits, if any, " that there is no genuine issue of material fact. F.D.I. C. v. Giammettei, 34 F.3d at 54 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986))."When a party has moved for summary judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure 56(e)] and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir.1992).

*3 To defeat a motion for summary judgment, the nonmovant must set out specific facts showing that there is a genuine issue for trial, and cannot rest merely on allegations or denials of the facts submitted by the movant. FED. R. CIV. P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.2003) ("Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case."); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.1994).

When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir.1998)."[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir.1994). Furthermore, where a party is proceeding pro se, the court must "read [his or her] supporting papers liberally, and... interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994); accord, Soto v. Walker, 44 F.3d 169, 173 (2d Cir.1995). This liberal standard, however, does not excuse a pro se litigant from following the procedural formalities of summary judgment. Showers v. Eastmond, 2001 WL 527484, at *2 (S.D.N.Y. May 16, 2001).

B. Unserved Defendants

Under Federal Rule of Civil Procedure 4(c)(1), the plaintiff is responsible for service of the summons and complaint for each defendant within a specified time period. Specifically, the plaintiff must effectuate service of process within 120 days of the filing of the complaint. FED. R. CIV. P. 4(m).[6] Failure to properly serve any defendant in accordance with the Federal Rules will result in the court, upon motion or on its own initiative, dismissing the case without prejudice as to that defendant. Id.

In this case, there is no indication that Defendants Crocket or McCann have been properly served. See Dkt. Nos. 11, Summons Returned Unexecuted as to Crocket, McCann, & 29, Summons Again Returned Unexecuted as to Crocket. In a Letter-Motion and Notice of Appearance, Dean Higgins, Esq., Attorney for the Defendants, notified Plaintiff and this Court that Defendants McCann and Crocket - as well as Defendant Nardozza - "no longer work at the Central New York Psychiatric Center, " and that their whereabouts were unknown. See Dkt. No. 15.

More than the required 120 days have passed since the complaint was filed herein. Further, the Discovery deadline in this litigation has expired as of June 19, 2011. Plaintiff has provided no explanation nor good cause for his failure to serve these Defendants. Under these circumstances, the claims against Defendants Crocket and McCann should be dismissed without prejudice to renew, pursuant to FED. R. CIV. P. 4(m).

C. Excessive Force

*4 Plaintiff claims that on November 18, 2009, he was beaten, held in restraints, and administered medication against his will. Defendants maintain that only a modest amount of force was used to maintain order after Plaintiff attacked a TA, and thus they should be entitled to summary judgment.

As an initial matter, Plaintiff asserts that certain policies and restrictions imposed on him at the CNYPC amount to cruel and unusual punishment in violation of the Eighth Amendment. Plaintiff, however, was released by the New York State Department of Corrections and Community Supervision to CNYPC upon the completion of his prison term and thus is no longer a prison inmate. The Eighth Amendment, which prohibits the "cruel and unusual punishment of those convicted of crimes, is therefore not applicable under the circumstances." Lane v. Carpinello, 2009 WL 3074344, at * 18 (N.D.N.Y. Sept. 24, 2009) (citing Youngberg v. Romeo, 457 U.S. 307, 312 (1982)). This does not mean that a patient involuntarily committed for treatment is without constitutional protections; rather, "[i]f it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the involuntarily committed... in unsafe conditions." Youngberg v. Romeo, 457 U.S. at 315-16 (1982).[7] Plaintiff's claims predicated upon violations of the Eighth Amendment are instead analyzed and evaluated under the Due Process clause of the Fourteenth Amendment. See Lane v. Carpinello, 2009 WL 3074344, at * 18 & *22 (citing Dove v. City of New York, 2007 WL 805786, at *7 (S.D.N.Y. Mar. 15, 2007) and Johnson v. Newburgh Enlarged School Dist., 239 F.3d 246, 253 (2d Cir.2001) for the proposition that "individuals in the non-seizure, non-prisoner environment have a substantive due process right to be free from the use of excessive force by their custodians"). However, the Eighth and Fourteenth Amendment tests that apply to the claims of excessive force are essentially the same. See United States v. Walsh, 194 F.3d 37, 48 (2d Cir.1999) (citing Hudson v. McMillian, 503 U.S. 1 (1992)).

To determine whether an excessive force violation occurred, the "core judicial inquiry is... whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. at 6-7 (quoted in Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir.1994)). To validly assert an excessive force claim, the plaintiff must show (1) objectively, that the defendants' actions violated "contemporary standards of decency, " and (2) subjectively, that the defendants acted wantonly and in bad faith. Blyden v. Mancusi, 186 F.3d 252, 262-63 (2d Cir.1999) (internal quotations and citations omitted). The Second Circuit has provided additional guidance in evaluating an excessive force claim in the non-prisoner environment, noting that the district court must consider

*5 the need for the application of force, the relationship between the need and amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.... [I]f the force was maliciously or sadistically [employed] for the very purpose of causing harm in the absence of any legitimate government objective and it results in substantial emotional suffering or physical injury, then the conduct is presumptively unconstitutional.... [M]alicious and sadistic abuses of government power that are intended only to oppress or to cause injury and serve no legitimate government purpose unquestionably shock the conscience.... [C]onduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.

Johnson v. Newburgh Enlarged School Dist., 239 F.3d at 251-52 (internal quotation marks and citations omitted).

Here, the record shows two conflicting views of what transpired in the side room on Ward 305. Plaintiff claims that a "beat-up crew" consisting of Defendants Ashley, Brennan, Davis, Espinosa, Fairbrother, Fical, Frazier, Hollenbeck, Leonardi, Parrish, Piracha, Searcy, McCann and Nardoza threw Plaintiff on the floor, punched and kicked him for about twenty minutes. See generallyDkt. No. 45-1, Pl.'s Dep. He was then placed in restraints, and Defendant Bahl administered medication to him against his will. Id. at p. 47.Plaintiff claims his injuries consisted of a swollen ear and his shin being scraped. Id. at pp. 62-64; see also Dkt. No. 41-4, Ex. A, Investigative Report, at pp. 85-87 (photos taken of the Plaintiff's injuries). Defendants, on the other hand, submit considerable evidence that Plaintiff, agitated at being placed in the holding ward in Ward 604 during recreation time, verbally threatened the CNYPC staff, pushed open the door of the side room in Ward 305, shouted obscenities at Defendant Piracha, and punched Defendant Hollenbeck in the left ear. See, e.g., Dkt. Nos. 41-10, Brett Davis Decl., dated Sept. 22, 2011; 41-16, Nicholas Hollenbeck Decl.; 41-19, Stephanie Oldick Decl.; & 41-21, Qasim Piracha Decl., dated Sept. 21, 2011. Further, many Defendants claim to have not been present on Ward 305 at the time Plaintiff was restrained. See, e.g., Dkt. No. 41-8, Kumar Bahl, M.D., Decl., dated Sept. 21, 2011 (also stating he did not administer medication to Plaintiff); 41-12, Michael Fairbrother Decl., dated Sept. 21, 2011; & 41-22, Jason Searcy Decl., dated Sept. 25, 2011; see also Dkt. No. 41-23, Christopher Smith Decl., dated Sept. 22, 2011 (stating that he was on Ward 305 and "heard the commotion from the sideroom... [but that Smith] remained where [he] was because there were enough staff with Resident Yeldon already and [he] was monitoring the dayroom"). Lastly, Defendants submit evidence that the abrasion on Plaintiff's left leg was self-inflicted and caused from picking a scab off. See Dkt. No. 41-15, Luis Hernandez, M.D Decl., dated Sept. 21, 2011 (noting that Dr. Hernandez, who is not a Defendant in his action, examined Plaintiff while in restraints and did not find any injury, but later noticed red area on right shin that "appeared to be an old lesion that [Plaintiff] had picked the scab off").

*6 If the circumstances of Plaintiff's restraint were as Defendants' evidence states that they were, Plaintiff's claim should be dismissed on summary judgment as Defendants only used de minimis force for a limited period of time and only for the purpose of restoring order. However, if Plaintiff's sworn testimony in his deposition is to be believed, Defendants assaulted Plaintiff without any "reason, because [he] didn't do anything to them.... [Plaintiff] was complying with the rules."Pl.'s Dep. at p. 50. Despite Defendants' overwhelming evidence, a genuine issue of material fact exists as to whether "force was maliciously or sadistically [employed] for the very purpose of causing harm in the absence of any legitimate government objective." Johnson v. Newburgh Enlarged School Dist., 239 F.3d at 251. These two versions of the event are best reconciled by a jury, rather than by this Court on a summary judgment review. See, e.g., Robbins v. Aetna Life Ins. Co., 2006 WL 2589359, at *10 (E.D.N.Y. Sept. 8, 2006) ("In light of the conflicting... evidence, the court finds that neither party has succeeded in eliminating any genuine issue of material fact, making summary judgment on the merits inappropriate."). Therefore, we recommend that Defendants' Motion for Summary Judgment be denied as it relates to Plaintiff's claim that Defendants Ashley, Brennan, Davis, Espinosa, Fairbrother, Fical, Frazier, Hollenbeck, Leonardi, Parrish, Piracha, Searcy, Nardoza, and Bahl used excessive force in the Ward 305 side room.

This Court additionally notes that Plaintiff also claims that Defendants Hollenbeck and Piracha kick, beat, punched, hit, and "sexually harassed" him while he was in the side room in Ward 604, before being brought down to Ward 305. See Dkt. No. 1, Compl., at ¶ 52. In his Deposition, however, Yeldon explicitly stated that no one placed their "hands on [Plaintiff] or assaulted [Plaintiff]... until [he] returned back to 305 Ward."Pl.'s Dep. at pp. 31-32. Plaintiff provides this Court with no other evidence regarding this assault allegation in Ward 604. Accordingly, because no issue of material fact exists such that a reasonable jury could find that Plaintiff was subjected to excessive force while he was in the side room of Ward 604, it is recommended that Defendants' Motion for Summary Judgment be granted as to any such claim.

D. Failure to Protect

Plaintiff also brings claims against Defendants Madia, Crocket, Forstie, Gray, and Delmedico, the medical staff at CNYPC, for failing to protect Plaintiff during the incident in Ward 305, who he claims instead "looked the other way and let [the abuse] happen." See Pl.'s Dep. at pp. 36-37 & 42.

As with excessive force claims, claims of failure to protect by patients who are involuntarily committed are analyzed within the framework of the Fourteenth Amendment, instead of the Eighth Amendment. See, e.g., Beck v. Wilson, 377 F.3d 884, 889 (8th Cir.2004) ("The Supreme Court explained that when the State takes a person into its custody and holds [her] there against [her] will, the Constitution imposes upon it a corresponding duty to assume some responsibility for [her] safety and general well-being.") (quoting DeShaney v. Winnebago Couty Dep't of Soc. Servs., 489 U.S. 189, 199-200 (1989) (alterations in original)). However, the "Second Circuit has yet to address the correct standard to be applied when evaluating a failure to protect claim arising out of an involuntary commitment, and there appears to be some uncertainty regarding the matter." Lane v. Carpinello, 2009 WL 3074344 at * 18.

*7 As the Supreme Court established in Youngberg, "involuntarily committed mental patients have substantive due process rights, .... [and] held that only an official's decision that was a substantial departure from accepted professional judgment, practice or standards' would support a substantive due process claim brought by an involuntarily committed mental patient." Vallen v. Carrol, 2005 WL 2296620, *8 (S.D.N.Y. Sept. 20, 2005) (quoting Youngberg v. Romeo, 457 U.S. at 310). However, some courts in this district have held that the general approach to substantive due process claims asserted under section 1983, which requires that a plaintiff show that the defendants' actions involved "conduct intended to injure [plaintiff] in some way unjustified by [any]... governmental interest and most likely rise to the conscience-shocking level, " would result in an unduly heavy burden being placed upon a plaintiff who is under the care and control of the state. Id. at *8-*9.Analogizing the plaintiffs rights to those of a pretrial detainee, these courts have suggested their agreement with the "deliberate indifference" standard employed in analyzing such circumstances. See id. at *9 (citing County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998)).

We need not resolve this issue here, because whether the Defendants' actions are measured under the "conscience-shocking" and "substantial departure" standard or the "deliberate indifference" standard, the result is the same. The evidence posits two conflicting stories. If the Defendants' narrative and evidence is to be believed, Plaintiff was unruly, violent, and presented a danger to staff and to himself. In that situation, "failing to protect" Plaintiff from being restrained and administered medication would neither shock the conscience or consist of deliberate indifference towards Plaintiff's health or safety. However, if Plaintiff's answers in his Deposition are truthful, Defendants Madia, Crocket, Forstie, Gray, and Delmedico stood idle outside the Ward 305 side room while other CNYPC staff assaulted the Plaintiff, without provocation, for about twenty minutes. This action would violate both of the above-listed standards. The Court may not now, on a motion for summary judgment, "assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute [our] judgment for that of the jury." Nimely v. City of New York, 414 F.3d 381, 390 (2d Cir.2005) (quoting LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 429 (2d Cir.1995). Therefore, as with Plaintiffs claims of excessive force, we recommend that Defendants' Motion for Summary Judgment on Plaintiffs failure to protect claims against Defendants Madia, Forstie, Gray, and Delmedico be denied.

E. Personal Involvement

It is well settled that the personal involvement of a defendant is a prerequisite for the assessment of damages in a § 1983 action. McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977). Furthermore, the doctrine of respondeat superior is inapplicable to § 1983 claims. See Polk County v. Dodson, 454 U.S. 312, 325 (1981) (internal citations omitted); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995). Thus, a defendant may not be liable for damages simply by virtue of holding a supervisory position. See, e.g., Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.1996). Rather, the personal involvement of a supervisory defendant may be shown when:

*8 (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.

Colon v. Coughlin, 58 F.3d at 873.[8]

Defendants contest that Defendants Maxymillian, Sawyer, Bill, and Morgan were personally involved in any of Plaintiff's alleged constitutional violations; rather, they were included by virtue of their supervisory positions only. Dkt. No. 41-24, Defs.' Mem of Law, at p. 15. All evidence in the record agrees with that contention. In his deposition, Plaintiff explicitly states that he included these Defendants in his lawsuit because they were "the head person[s] of the program" but were not "directly involved in the assault." Pl.'s Dep. at pp. 43-47. Our review of the record undisputedly establishes that Plaintiff has failed to show any direct participation by Defendants Maxymillian, Sawyer, Bill, and Morgan in the alleged violations, that the Defendants' policies allowed the continuance of constitutional violations, or that the Defendants were negligent in their supervision of subordinates. Therefore, Defendants' Motion for Summary Judgment should be granted and Plaintiffs claims against Defendants Maxymillian, Sawyer, Bill, and Morgan should be dismissed for want of personal involvement.

Likewise, Defendant Barrett should be dismissed from this action. In his Complaint, Plaintiff claims that Barrett was also present during the assault on him, and that Barrett wrote a note on November 19, 2009, stating that Plaintiff had refused to take his insulin medication. Compl. at ¶¶ 45 & 54. However, Plaintiff made no allegations against Barrett at his Deposition. See Pl.'s Dep. at p. 43. Plaintiff has submitted no evidence that Defendant Barrett was involved in any wrongdoing in his action, and accordingly, this Court recommends dismissal of any claims against him as lacking in personal involvement.

F. Eleventh Amendment

Defendants also raise in their Motion for Summary Judgment dismissal of Plaintiff's claims made against them in their official capacity, pursuant to the Eleventh Amendment. See Defs.' Mem of Law at p. 6-7.

The Eleventh Amendment states, "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."Although by its terms, the amendment bars suit by citizens of one State against another State, the Supreme Court has held that such amendment similarly bars suits against a State by its own citizens. Hans v. Louisiana, 134 U.S. 1 (1890)."The Eleventh Amendment thus affirm[s] that the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. III.'" Richardson v. New York State Dep't of Corr. Servs., 180 F.3d 426, 447-48 (2d Cir.1999) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)). Thus, sovereign immunity provided for in the Eleventh Amendment prohibits suits against the State, including a state agency in federal court. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. at 98; Severino v. Negron, 996 F.2d 1439, 1441 (2d Cir.1993); Daisernia v. State of New York, 582 F.Supp. 792, 796 (N.D.N.Y.1984). To the extent a state official is sued for damages in his official capacity, "such a suit is deemed to be a suit against the state, and the official is entitled to invoke the eleventh amendment immunity belonging to the state." Rourke v. New York State Dep't. of Corr. Servs., 915 F.Supp. 525, 539 (N.D.N.Y.1995) (citing, inter alia, Berman Enters., Inc. v. Jorling, 3 F.3d 602, 606 (2d Cir.), cert. denied, 510 U.S. 1073 (1994)); see also Mathie v. Fries, 121 F.3d 808, 818 (2d Cir.1997) ("A claim against a government officer in his official capacity is, and should be treated as, a claim against the entity that employs the officer....").

*9 In appropriate circumstances, the jurisdictional bar of the Eleventh Amendment may immunize a state official acting in his or her official capacity. See In re Deposit Ins. Agency, 482 F.3d 612, 617 (2d Cir.2007) (citation omitted). However, under the doctrine of Ex Parte Young, 209 U.S. 123 (1908), a suit may proceed against a state official in his or her official capacity - notwithstanding the Eleventh Amendment - when a plaintiff "(a) alleges an ongoing violation of federal law and (b) seeks relief properly characterized as prospective."In re Deposit Ins. Agency, 482 F.3d at 618 (quotations and citations omitted).

Here, Plaintiff seeks injunctive relief as well as compensatory damages against state employees. See Compl. at ¶ 55. Therefore, as state officials, Defendants cannot be sued in their official capacities in a claim for money damages. However, Plaintiff may seek monetary damages from them in their individual capacities. Further, Plaintiff may sue the Defendants for declaratory and injunctive relief in both their individual and official capacities because "official-capacity actions for prospective relief are not treated as actions against the State." Cruz v. Gomez, 202 F.3d 593, 595 n. 2 (2d Cir.2000) (quoting Willy. Michigan Dep't of State Police, 491 U.S. 58, 71 n. 10 (1989)). Accordingly, Defendants' Motion for Summary Judgment should be granted to the extent that Plaintiff asserts claims for monetary relief against them in their official capacities.

III. CONCLUSION

For the reasons stated herein, it is hereby

RECOMMENDED, that Defendants' Motion for Summary Judgment (Dkt. No. 41) be granted in part and denied in part as follows:

1. Defendants McCann and Crocket should be dismissed from this action based upon Plaintiff's failure to effectuate service of process within 120 days of the filing of his Complaint, pursuant to Federal Rule of Civil Procedure 4(m);

2. To the extent asserted, Plaintiff's excessive force claims against Defendants Ashley, Brennan, Davis, Espinosa, Fairbrother, Fical, Frazier, Hollenbeck, Leonardi, Parrish, Piracha, Searcy, Nardoza, and Bahl, relating to an assault on Plaintiff in the CNYPC side room of Ward 305, should survive Defendants' Motion;

3. To the extent asserted, Plaintiff's excessive force claims against Defendants Hollenbeck and Piracha, relating to an assault on Plaintiff in the side room in Ward 604, should be dismissed;

4. To the extent asserted, Plaintiff's failure to protect claims against Defendants Madia, Forstie, Gray, and Delmedico, relating to an assault on Plaintiff in the CNYPC side room of Ward 305, should survive Defendants' Motion;

5. To the extent asserted, Defendants Maxymillian, Sawyer, Bill, Morgan, and Barrett should be dismissed from this action based upon Plaintiff's failure to assert their personal involvement in any wrongdoing;

6. All causes of action seeking monetary relief should be dismissed, pursuant to the Eleventh Amendment, insofar as they are stated against the Defendants in their official capacities; and it is further

*10 ORDERED, that the Clerk of the Court update the Docket to reflect the correct spellings of the names of Defendants Charmaine Bill, Qasim Piracha, and Marianna Madia; and it is further

ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order upon the parties to this action.

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir.1989)); see also 28 U.S.C. § 636(b) (1); FED. R. CIV. P. 72 & 6(a).


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