Neira v. Nassau County Sheriffs Department

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK For Online Publication Only

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JONATHAN NEIRA,

Plaintiff,

-against- MEMORANDUM AND ORDER

13-CV-07271 (JMA) (AYS)

COUNTY OF NASSAU, NASSAU COUNTY

SHERIFF’S DEPARTMENT, NASSAU FILED

COUNTY CORRECTIONS CENTER, CLERK

MICHAEL J. SPOSATO, individually,

4:06 pm, Sep 29, 2022

and as Sheriff of Nassau County,

JOHN DOES #1-10, representing Nassau County U.S. DISTRICT COURT

Corrections Officers in their individual and official EASTERN DISTRICT OF NEW YORK

Capacities, whose names are currently unknown to LONG ISLAND OFFICE

the Plaintiff but are known to the Defendants,

ARMOR CORRECTIONAL HEALTH SERVICES,

INC., ARMOR CORRECTIONAL HEALTH

SERVICES OF NEW YORK, INC., and

JOHN AND JANE DOES #11-20, representing

Armor Correctional Health Services Employees and

Agents in their individual and official capacities,

whose names are currently unknown to the Plaintiff

but are known to the Defendants,

Defendants.

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APPEARANCES:

David Antwork

1757 Merrick Avenue, Suite 205

Merrick, New York 11566

Attorney for Plaintiff

Callan Wright Tauster

Liora M. Ben-Sorek

Nassau County Attorney’s Office

1 West Street

Mineola, New York 11501

Attorneys for Defendants County of Nassau, Nassau County Sheriff’s Department,

Nassau County Corrections Center and Michael J. Sposato

AZRACK, United States District Judge:

Plaintiff Jonathan Neira (“plaintiff”) brings this civil rights action pursuant to 42 U.S.C. §

1983 (“Section 1983”) against defendants the County of Nassau (the “County”), Nassau County

Sheriff’s Department (the “NCSD”), Nassau County Corrections Center (the “NCCC”), Sheriff

Michael J. Sposato (“Sheriff Sposato”) (collectively the “County defendants”), and John Does #1-

10 (“John Does”), representing Nassau County Corrections Officers. The Second Amended

Complaint alleges violations of the Eighth and Fourteenth Amendments of the United States

Constitution and various state-law claims.

Currently pending before the Court is the County defendants’ motion for summary

judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons discussed

below, the Court grants the defendants’ motion for summary judgment on the federal claims and

dismisses all of plaintiff’s federal claims. Having disposed of the federal claims, the Court declines

to exercise supplemental jurisdiction over the remaining state law claims. Accordingly, plaintiff’s

Second Amended Complaint is dismissed in its entirety.

I. BACKGROUND

A. Factual Background

In 2011, plaintiff was shot in the back of the head by an individual named Rochelle Davis

(“Davis”) and suffered a traumatic brain injury leaving him with cortical blindness and a seizure

disorder. (Plaintiff’s Rule 56.1 Statement (“Pl. 56.1”) ¶¶ 1, 5, 39, 89, ECF No. 134.) As a result

of the shooting, plaintiff has bullet fragments in the back of his brain and has been declared legally

blind.1 (Id. ¶¶ 1, 39.)

1 Defendants dispute that plaintiff is legally blind. (Defs. Mot. at 12.)

On August 18, 2013, plaintiff was arrested for possession, and was remanded to the NCCC

on August 20, 2013.2 (Declaration of Callan W. Tauster (“Tauster Decl.”), Plaintiff’s Deposition,

Nov. 15, 2019 (“Pl. Dep.”) 24:21-25:26:7; 26:24-27:6, Ex. A, ECF No. 133-5, Pl. 56.1 ¶ 91.) At

the time of his admittance to the NCCC, plaintiff was withdrawing from drugs. (Defendants’ Rule

56.1 Statement (“Defs. 56.1”) ¶ 17, ECF No. 133-2.) Prior to his incarceration, plaintiff had been

using prescribed oxycodone and snorting heroin. (Pl. Dep. 127–28.)

Following his arrest, but prior to his admission to the NCCC, plaintiff was strip searched

at Hempstead District Court where illegal substances were found on his person. (Tauster Decl.,

Disciplinary Report, Aug. 20, 2013, (“Def. Ex. C”), ECF No. 133-7; Pl. Dep. 56:5-17.) As a result,

plaintiff received ninety-days lock-in and loss of commissary for three weeks.3 (Defs. Ex. C; Defs.

56.1 ¶ 74.)

Upon being admitted to the NCCC on August 20, 2013, plaintiff received an initial medical

evaluation that same day. At all relevant times during plaintiff’s incarceration, Armor Correctional

Health Services of New York, Inc. (“Armor”) was the provider of medical care at the NCCC

pursuant to its contract with the County. (Pl. 56.1 ¶ 37.)

Plaintiff’s commitment papers indicate “MED. ATTN. AS NEEDED,” note his legal

blindness and seizure disorder, and state that he is to have “no contact with Davis, Rochelle,” who

was also incarcerated at the NCCC awaiting trial on charges related to shooting plaintiff. (Id. ¶¶

93, 94, 103; Declaration of David A. Antwork (“Antwork Decl.”), Plaintiff’s Commitment Form,

(“Pl. Ex. B”), ECF No. 134-2.)

2 The NCCC is a correctional facility operated by the NCSD, an agency of Nassau County.

3 Plaintiff claims that he was ultimately subjected to six months of lock-in. However, none of his claims concern

this lock-in.

1. The Assault

Shortly after plaintiff’s initial medical evaluation on August 20, plaintiff was assaulted by

three unidentified correction officers in the hallway while he was being escorted to his housing

unit. (Pl. 56.1 ¶ 11; Defs. 56.1 ¶ 80; Pl. Dep. 61:9-18.) Plaintiff claims that he had asked one of

the “approximately 5 [correction officers] present” to walk in front of him because he could not

see well. (Pl. 56.1 ¶ 11.) In response, “[t]he officer growled, kicked him from the back and

punched him on the right side of his head, causing him to stumble forward to the ground.” (Id.)

The officer called him “a piece of shit, tough guy, MS-13,” and two or three more correction

officers joined in “kicking plaintiff all over his body, including his head, arms, and legs while he

was on the ground.” (Id.) According to plaintiff, one of the officers then grabbed both of his

shoulders from behind, walked him to his unit and slammed the right side of his head into the gate

before throwing him in his cell. (Id.)

Plaintiff was unable to identify the correction officers who assaulted him because of his

blindness. (Id. ¶ 13.) While plaintiff testified, at his deposition, that an “elder gentleman” in his

housing area witnessed the assault, plaintiff could not identify this alleged witness other than to

say that he was of Dominican decent and possibly named Domingas. (Id. ¶ 15.) Plaintiff believes

the witness resides on Bellmore Avenue in East Meadow, New York.4 (Id.) Plaintiff testified that,

at the time of the assault, he was sedated because of his heroin use. (Pl. Dep. 68:2-69:5.)

2. Plaintiff’s Report of the Assault and Treatment in August and September 2013

The parties dispute the extent to which plaintiff was able to see medical staff and obtain

medical treatment between August 20—the date of the alleged assault—and September 4, 2013.

4 In a November 9, 2014 letter that plaintiff submitted pro se to the Court, plaintiff indicated that this witness was an

individual named “Sergio Diaz,” who allegedly lived at 109 Bellmore Rd. in East Meadow. (ECF No. 28.)

Armor Progress notes indicate that plaintiff was seen by medical staff on August 21, 23,

26 and August 27. As explained infra, Plaintiff provided vague, confusing, and contradictory

deposition testimony concerning these consultations.

According to Armor Progress notes, on August 21, 2013, plaintiff was referred by

psychiatric for a detox evaluation, but refused to show up at the medical clinic and told the nurse

who went to his cell that he did not want to “go anywhere or see anyone.” (Tauster Decl., Armor

Progress notes, (“Defs. Ex. L”), ECF No. 133-16.) Plaintiff testified that he did not recall seeing

a nurse on August 21. (Pl. Dep. 84.) At the time, plaintiff was going through withdrawal.

An August 23, 2013 Armor Progress note states that: (1) plaintiff complained of chronic

head pain for which he was prescribed 600 milligrams of Ibuprofen; and (2) plaintiff had “bullet

wounds” and was taking Keppra for seizures. (Id.) An August 26, 2013 progress note states that

plaintiff complained of heartburn and appears to have been prescribed Prilosec. (Id.) A progress

note dated August 27, 2013 indicates that plaintiff complained about a chronic headache and

mentioned the 2011 gunshot wound to his head. (Id.) The progress notes from August 23, 26, and

27 indicate that plaintiff was examined at the medical department as they include, -in-te-r- a-li-a, his

blood pressure readings, weight, and other examination findings. (Id.)

At his deposition, plaintiff testified that he could not recall whether he was seen by medical

staff on these three dates. When asked if he went to medical anytime between August 20 and

September 5, plaintiff responded: “I don’t remember exactly because I was trying to and I don’t

know how long did it take for me to get there or didn’t. I can’t remember. It’s been a very long

time.” (Pl. Dep. 80.) When asked specifically about the August 23 examination, plaintiff testified

that he did not recall being seen by medical professionals on that date. (Pl. Dep. 85.) When asked

about the August 26 visit, plaintiff stated “these things are documented, but I don’t remember.”

(Pl. Dep. 86:2–3.) When asked about the August 27 visit, plaintiff testified that he could not recall

a visit on “that date, but . . . I’m pretty sure these are things I was trying to address because of the

things I was going through.” (Pl. Dep. 86:10-12.) At one point, plaintiff testified that, after his

initial medical visit on August 20, he believed that he was not seen by medical again until

“numerous” days later. (Pl. Dep. 75:18–19.) However, he could not recall if his second visit to

medical occurred more than a week after August 20. (Pl. Dep. 75, 76, 80.)

Later in his deposition, plaintiff gave some testimony suggesting that he never went to the

medical unit on these three dates in August and only spoke with staff who delivered medications

to his cell.5 (Pl. Dep. 85:19-88:13.) In this testimony, plaintiff states that he was unable to obtain

5 At his deposition, the following colloquy occurred:

Q: Okay. So we’ve just discussed – I’m just going to count -- looks like you were seen by medical

on the 21st, the 23rd or at least these records reflect you were seen on the 21st , the 23rd, the 26th ,

27th, and then there are multiple subsequent dates. There are several case entries for 8/27. So my

question to you , sir, is that, is it still your testimony that you were denied medical treatment

immediately following your assault?

A: Yeah.

Q: Okay. And is it your testimony that these progress notes are inaccurate , that you weren’t in fact

treated?

A: I just don’t remember. Um . . .

Q: So your testimony is that you don’t recall, but in fact you might have been seen by medical

professionals, you just don’t recall?

MR . ANTWORK: Objection .

A: Um, all right , so bottom line, I was seen by -- not by medical, but by the people that would bring

the medicine on a daily basis , but I wasn’t able to get any appointment or to see the doctor because

they wouldn’t give me a slip, and every time I told them something, they would tell me to just put

in a slip.

Q: Did you explain to them that you were being denied slips?

A: I said those things. They didn’t really care, so that’s why I said I most likely wrote all these

things, but I wasn’t seen .

Q: MR . ANTWORK: Did you write these (indicating)?

an appointment at the medical clinic because the corrections officers ignored his requests for a sick

call slip and would not give him a pencil or a slip. (Pl. Dep. 79, 88:7-89:4.) This testimony

suggests that during this time period he only spoke to the individuals who delivered medication to

him and never went to the medical department. (Pl. Dep. 88.) Plaintiff admits that he never told

the staff who delivered his medication that he had been assaulted by corrections officers. He

maintains that he did not mention the assault to the staff who brought him his medication because

he did not want to report the assault in front of the corrections officers. (Pl. Dep. 88.)

According to plaintiff, “numerous days after” the assault he was finally able to obtain a

sick call slip and pencil from other inmates, which resulted in plaintiff being seen at the medical

department on September 5. (Id. 83:8-10.)

Plaintiff first reported the August 20, 2013 assault on September 5, 2013, to Correction

Officer Boyd who worked in the medical unit where plaintiff was being seen for a medical visit.

(Def. 56.1 ¶ 60.) Once plaintiff reported the assault on September 5, he was immediately examined

by medical staff. (Defs. Ex. E, F, ECF Nos. 133-9, 133-10.) Plaintiff reported that he had pain in

his head and jaw as a result of the assault. (Defs. Ex. E.) Plaintiff, however, has not contended

A: Well, no, no, not these, but I’m saying the sick calls because, I guess if they’re going by these

dates (indicating).

Q: And it’s your testimony that they told you that in order to go to medical, you needed to fill out

a sick slip?

A: A sick call. A sick call, okay.

Q: Did you tell anyone who was coming to see you to give you medication, did you tell them that

you were assaulted by jail staff?

A: Um, no. I wanted to get to medical and I wasn’t able to .

Q: I’m sorry. My question was, did you tell, them, yes or no?

A: No, because the COs were there.

(Pl. Dep. 86–88.)

that, on September 5, he had any visible injuries from the assault.6 (Pl. Opp’n Br. at 8 (admitting

that “Plaintiff’s physical injuries may have dissipated by [September 5]”); see also Def. Ex. F

(noting no injuries); Def. Ex. M (stating that no injuries were found), ECF No. 133-17). Plaintiff

was given Tylenol and Motrin for pain and was told to place a sick call if his symptoms persisted

or worsened. (Pl. 56.1 ¶¶ 24, 79).

Plaintiff was interviewed by Sergeant McCann about the assault. He was unable to provide

any of the officers’ names, but did identify the date and area of the assault. (Defs. Ex. M.) The

incident was reported to Internal Affairs, photos were taken, and an investigator deposed plaintiff

on September 6, 2013. (Id.; Pl. 56.1 ¶ 86.) On September 12, 2013, Internal Affairs determined

that no further action was warranted, noting that plaintiff had waited two weeks to report the

matter, he could not identify any of the officers, and no injuries were found. (Defs. Ex. M; Pl. 56.1

¶ 87.) The Internal Affairs report does not reference any attempt to interview the officers or other

staff working at the time and in the location of the assault. (Pl. 56.1  ¶ 111.) Plaintiff maintains

that he was not informed that his internal affairs case was closed on September 12. (Id.)

After his medical examination on September 5, plaintiff filed a sick call request on

September 12, 2013, stating that, after the assault, his jaw has been hurting on the right side. (Pl.

Ex. F.) Plaintiff also complained that “my head still hurts no one wants to give me pain medicine,

I have multiple bullet fragments inside my head.” (Id.) That same day, plaintiff also submitted

another sick call request about other issues unrelated to the assault. Plaintiff was seen by Dr.

Sanchez later that day. (Def. Ex. L.) The progress notes for this visit state that plaintiff “[illegible]

me for [illegible] for his headache which I am willing to prescribe him.” (Id.)

6 There is no evidence in the record that plaintiff had any visible injuries immediately after the alleged assault.

3. Plaintiff’s Other Sick Call Requests and Grievances

While incarcerated at the NCCC, plaintiff filed at least ten grievances related to: (1) the

assault; (2) his housing assignment; and (3) his requests for medical care, including pain

medication, anti-seizure medication, a neurologist referral, and a CAT scan. (Pl. Dep. 104:25-

105:7; Antwork Decl., Grievances, (“Pl. Ex. E”), ECF No. 134-7.) The particulars of some of

these grievances, plaintiff’s related sick call requests, and the treatment he received are addressed

infra in the discussion of plaintiff’s respective claims.

After September 2013, plaintiff submitted certain subsequent sick call requests that asked

for stronger pain medication. These sick calls requests reference the bullets in his head and say

nothing about the alleged assault.

On December 4, 2013, plaintiff submitted a sick call request seeking Neurontin for the pain

in his head. (Pl. Ex. F. at NCSD 000254, ECF No. 134-8.) Plaintiff also submitted a sick call

request on December 7, 2013 requesting pain medicine for the bullet fragments in his head because

the cold makes it hurt a lot. (Id. at NCSD 000255.) Plaintiff was eventually prescribed Neurontin.

(Pl. 56.1 ¶ 29.)

Plaintiff submitted another sick call request on January 6, 2014 stating that Tylenol is not

enough and that he “need[s] the right pain medicine for the bullet fragments in [his] head. (Pl. Ex.

F at NCSD 000257.)

Between January 9, 2014 and January 24, 2013, plaintiff submitted two sick call slips and

one grievance requesting that he be seen by a neurologist and be given a CAT scan. (Def. Ex. E;

Pl. Ex. F. In response to these grievances, plaintiff was seen in the medical unit on January 10,

17, 20, 24, and February 12, 2014.

Prior to his incarceration, Plaintiff was under the care of Dr. Holtzman, a neurosurgeon.

(Pl. 56.1 ¶ 27.) Plaintiff testified that Dr. Holtzman informed him that he should have a CAT scan

every six to twelve months because of the multiple bullet fragments in his head from the 2011

shooting. (Pl. 56.1 ¶ 122; Pl. Dep. 122:12-123:23.) Plaintiff testified that, prior to his August

2013 arrest, he had a CAT scan at some unspecified point in 2013. (Tr. 123.)

On January 9, 2014, Plaintiff submitted a sick call slip requesting a CAT scan. (Pl. Ex. F.)

On January 10, 2013, plaintiff was seen at the medical unit where he reiterated his request for a

CAT scan. (Def. Ex. E.) Plaintiff submitted another sick call slip on January 21, 2013, which

references “Dr. Parrinella” and states that he needs a CAT scan and was told that he would be seen

by a neurologist. (Id.) On January 23, 2014, plaintiff requested pain medication for the bullet

fragments in his head. (Id. at NCSD 000262.)

On January 24, 2014, plaintiff filed a grievance about his attempts to see a neurologist and

obtain a CAT scan. In his January 24 grievance, plaintiff complained that “Dr. Parrinello” had

told him that he would go see a neurologist, but that a “[l]ady doctor said that is not necessary.”

(Tauster Decl., Jan. 24, 2014 Grievance, (“Defs. Ex. K”), ECF No. 133-15.)

The grievance investigation form for the January 24 grievance indicates that: (1) plaintiff

was seen by medical on January 24, 2014; (2) a neurology consultation was requested on January

24, 2014; and (3) as of January 30, 2013, a decision on the neurology appointment was pending

approval. (Id.) Plaintiff was seen again by medical on February 12, 2014 and the progress note

for that visit indicates that plaintiff’s “neurology referral [was] deferred for more info.” (Defs. Ex.

L at 3, -se-e -a-ls-o Def. Ex. K.) This progress note explains that plaintiff was supposed to complete

an “ROI” (release of information) to obtain records from his neurosurgeon. (Def. Ex. L at 3.)

There is no evidence in the record that plaintiff ever completed the ROI referenced in the

February 12, 2014 progress note. Nor is there any evidence indicating when, if at all, Dr. Holtzman

responded to a request from Armor for plaintiff’s medical records.

Plaintiff testified that, at some unspecified time, he was granted clearance for a neurologist

visit and approved for transportation for a visit, but ultimately never saw a neurologist. (Pl. 56.1

¶ 27; Pl. Dep. 123.) Plaintiff testified that he followed up by making unspecified sick call requests

and speaking to the woman doctor referenced in his grievance. (Pl. Dep. 124.) However, the only

relevant sick call requests in the record are from January 2014. Plaintiff has not claimed that he

filed any grievances concerning the neurology consultation and CAT scan after January 24, 2014

or any sick call requests after his February 12, 2014 visit to the medical unit.

4. Plaintiff’s Release in 2014 and Subsequent Events

Plaintiff eventually entered into a plea bargain and was released from the NCCC to

outpatient treatment on May 23, 2014. (Pl. Dep. 145; July 3, 2014 Ltr., ECF No. 22.) Plaintiff

did not receive a CAT scan or see a neurologist before being released in May 2014.

While plaintiff was out of jail and receiving outpatient treatment for his drug addiction, he

was rearrested and sent again to the NCCC in or around November 2014. (Pl. Dep. 146, 148; Nov.

9. 2014 Ltr., ECF No. 28.) Plaintiff was eventually transferred from the NCCC to a prison upstate

sometime in 2015. (Pl. Dep. 149; Aug. 7, 2015 Ltr., ECF No. 44)

The record does not indicate whether, after being released in May 2014, plaintiff saw his

neurologist or made any attempt to obtain a CAT scan before he was arrested again and sent back

to the NCCC in approximately November 2014. The record does not reference any grievances or

sick calls that plaintiff submitted during his second tenure at the NCCC, which began around

November 2014. Plaintiff was eventually released from custody in 2016.

At plaintiff’s deposition, which occurred in November 2019—three years after his 2016

release from prison upstate—plaintiff briefly testified about follow-up treatment he received from

his neurologist. Plaintiff testified that, at some unspecified time, he saw Dr. Holtzman when he

was out of prison and obtained a CAT scan and other unspecified “tests.” (Pl. Dep. 154–55.) Dr.

Holtzman did not make any diagnosis about plaintiff’s jaw. (Pl. Dep. 156.) At his deposition,

plaintiff testified that since the assault occurred, his jaw has been locking and he is in more pain

than before. (Pl. Dep. 155:4-9.)

5. Sheriff Sposato

Sheriff Sposato was employed by the County as Acting Sheriff from 2007-2011, and

Sheriff of Nassau County from 2011- 2017. (Pl. 56.1 ¶¶ 42, 45-46; Antwork Decl., Sheriff Sposato

Deposition, Feb. 5, 2020, (“Sposato Dep.”), ECF No. 134-6, 16:4-5.) As the Sheriff, Sposato was

the overall oversight manager of approximately forty divisions, including the NCCC. (Pl. 56.1

¶ 47.) Sposato testified that he first became aware of plaintiff when the County Attorney’s Office

forwarded him plaintiff’s Second Amended Complaint. (Def. 56.1 ¶ 48.) He testified that he could

not recall if he knew about the alleged assault prior to the commencement of plaintiff’s lawsuit.

(Id. ¶ 58.)

B. Procedural History

On December 20, 2013, plaintiff, proceeding pro se, initiated the instant action asserting

claims against Armor and the NCSD. (Compl., ECF No. 1.) The case was initially assigned to

then-District Court Judge Joseph F. Bianco. On April 23, 2014, Armor moved to dismiss

plaintiff’s complaint. (ECF No. 18.) On August 20, 2014, plaintiff’s claims against Armor were

voluntarily dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1).

(ECF No. 27.) On October 5, 2015, the Court granted plaintiff’s motion to amend the Complaint

(ECF No. 47), and plaintiff filed an Amended Complaint. (Amend. Compl., ECF No. 48.)

On January 25, 2016, the Court granted plaintiff’s request to reinstate his claims against

Armor and also reinstated Armor’s motion to dismiss. (ECF No. 54.) On April 4, 2016, in

accordance with Federal Rule of Civil Procedure 41(a)(1)(A)(i) and 41(a)(1)(B), the Court

dismissed the claims against Armor with prejudice and plaintiff informed the Court that he wished

to “concede to” Armor’s motion to dismiss. (ECF No. 61.)

On September 9, 2016, counsel appeared on behalf of plaintiff (ECF No. 64), and on

December 1, 2016, plaintiff filed a Second Amended Complaint. (SAC, ECF No. 71.) On

September 15, 2017, the Court denied the NCSD’s motion to dismiss the Second Amended

Complaint and denied plaintiff’s cross-motion to set aside the Court’s April 4, 2016 Order

dismissing the claims against Armor. (ECF No. 95.) On May 31, 2019, the case was reassigned

to the undersigned. (Electronic Order, May 31, 2019.) On January 31, 2022, defendants filed a

fully briefed motion for summary judgment. (ECF No. 133-135.)

II. DISCUSSION

A. Standard of Review

Summary judgment is appropriate when the pleadings, depositions, interrogatories, and

affidavits demonstrate that “there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); -se-e -al-so- -C-el-o-te-x- C-o-r-p.- v-. -C-a-tr-et-t,

477 U.S. 317, 322 (1986). The movant bears the burden of demonstrating that “no genuine issue

of material fact exists.” Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002)

(citations omitted). “An issue of fact is ‘material’ for these purposes if it ‘might affect the outcome

of the suit under the governing law,’” while “[a]n issue of fact is ‘genuine’ if ‘the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.’” Konikoff v. Prudential

Ins. Co. of Am., 234 F.3d 92, 97 (2d Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986)).

When determining whether any material facts are in dispute, the court “must examine the

evidence in the light most favorable to, and draw all inferences in favor of, the non-movant[.]”

Marvel Characters, 310 F.3d at 286 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986); Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000)). To defeat

a properly supported motion for summary judgment, “the nonmoving party must come forward

with specific facts showing that there is a genuine issue for trial.” Matsushita, 475 U.S. at 587

(internal quotation marks and citation omitted). The nonmoving party, however, “must do more

than simply show that there is some metaphysical doubt as to the material facts.” Id. at 586

(citations omitted). Mere conclusory allegations, speculation, or conjecture will not avail a party

resisting summary judgment. See Shannon v. New York City Transit Auth., 332 F.3d 95, 99 (2d

Cir. 2003). Unless the non-moving party produces “significant probative evidence” demonstrating

that a factual dispute exists, summary judgment is appropriate. Anderson, 477 U.S. at 249.

B. Claims Against the John Doe Defendants

Defendants seek summary judgment of plaintiff’s claims against the “John Doe”

defendants because plaintiff has failed to identify the unnamed defendants. (Defs. Mot. at 9-13.)

The Court agrees.

Using “John Doe” in lieu of an individual defendant’s name does not adequately identify

that person. See Coward v. Town & Vill. of Harrison, 665 F. Supp. 2d 281, 300 (S.D.N.Y. 2009).

However, “[c]ourts typically resist dismissing suits against John Doe defendants until the plaintiff

has had some opportunity for discovery to learn the identities of responsible officials.” Id.

(internal quotation marks and citation omitted). Nonetheless, where a plaintiff has had ample time

to identify a John Doe defendant and still has not done so, a plaintiff cannot continue to maintain

a suit against the John Doe defendant. Id.; see also Watkins v. Doe, 04-CV-0138, 2006 WL

648022, at *3 (S.D.N.Y. Mar. 14, 2006) (dismissing without prejudice claims against “Doe”

defendants where “despite having the full opportunity to conduct discovery, plaintiff has not yet

identified and served [those] defendants”).

Here, plaintiff has had ample time to identify the John Doe officer defendants, but has

failed to do so. In the Court’s September 15, 2017 Order, Judge Bianco denied the County’s

motion to dismiss plaintiff’s complaint against the John Doe defendants as premature,

acknowledging that Second Circuit law requires that plaintiff be afforded an opportunity to learn

the identities of the responsible officials. (Sept. 15, 2017 Order, ECF No. 95; see transcript of

proceedings, ECF No. 117.) Specifically, Judge Bianco noted:

The fact that the plaintiff is blind here, and obviously would have additional issues

with trying to identify who the officers were, you get another reason why, I think,

the court should give the plaintiff the opportunity to obtain discovery and seek to

identify the individual officers. . . . Obviously, if the plaintiff gets all the discovery

in the case, and still can’t identify the officers, th[en] the county can certainly raise

that again with the court in a summary judgment motion.

(Tauster Decl., partial transcript of J. Bianco’s Sept. 15, 2017 proceedings, (“Defs. Ex. S”), ECF

No. 133-23, 4:24-5:7.)

Discovery has now been completed, yet plaintiff has neither moved to substitute the names

of the individual officers nor has indicated that he has learned the identity of the officers. Fact

discovery began on February 20, 2014 and was extended six times, ultimately ending on

September 25, 2020—four years after plaintiff obtained counsel. On November 12, 2018,

defendants responded to plaintiff’s discovery requests with copies of line-up sheets, identifying

the NCCC staff on duty on August 20, 2013, and their respective security post assignments.

(Tauster Decl., County defendants’ Discovery Response, (“Defs. Ex. P”), ECF No. 133-20.)

Despite the Court granting of multiple requests by the parties to extend discovery, plaintiff never

sought additional discovery to identify the officers nor did he depose anyone other than Sheriff

Sposato. Further, as defendants point out, despite his claim that an individual named Domingas

witnessed the alleged assault, plaintiff never sought any information during discovery that would

have enabled him to locate this potential witness. (Defs. Mot. at 12.)

Plaintiffs’ arguments against dismissal of the John Doe defendants are meritless.

First, plaintiff argues that Defendants’ responses to discovery were incomplete and

inadequate. Plaintiff contends that the County’s November 12, 2018 discovery response was

incomplete because it was missing a page—bate stamped #000378—which would list the

correction officers assigned to the medical unit on August 20, 2013. (Pl. Opp’n at 10.) Plaintiff

also insists that Sposato, who was deposed, was also the County’s 30(b)(6) witness and was not

adequately prepared to serve in that role.

Plaintiff’s opposition papers in response to a summary judgment motion are not the place

to litigate these untimely discovery disputes. Plaintiff, who was represented by counsel during

discovery, could have filed a motion to compel production of the purportedly deficient document

production any time between defendants’ 2018 production and the end of the lengthy discovery

period two years later. Similarly, plaintiff had an opportunity to raise any issues involving the

30(b)(6) deposition before the close of discovery.7

Furthermore, plaintiff’s attempt to stave off summary judgment on the basis of these

purported discovery deficiencies also fails, procedurally, under Rule 56.

7 The County disputes that Sposato was ever designated as a 30(b)(6) witness. This dispute is ultimately irrelevant

because, plaintiff should have raised this 30(b)(6) issue and other discovery disputes before the close of discovery.

Federal Rule of Civil Procedure 56(d) states:

If a nonmovant shows by affidavit or declaration that, for specified reasons, it

cannot present facts essential to justify its opposition, the court may:

(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or declarations or to take discovery; or

(3) issue any other appropriate order.

Fed. R. Civ. P. 56(d).

Plaintiff has not submitted an affidavit or declaration pursuant to Rule 56(d). Accordingly,

his argument based on defendants’ purportedly deficient discovery responses fails and is not a

ground to fend off dismissal of the John Doe defendants.

Second, plaintiff’s argument that his legal blindness excuses him from identifying the John

Doe defendants is equally unavailing. Judge Bianco’s order denying defendant’s motion to

dismiss acknowledged plaintiff’s blindness and provided him with more than ample time to

conduct discovery to identify the officers.

Third, plaintiff’s reliance on Webb v. Miller, No. 18CV610, 2020 WL 1227155, at *3

(N.D.N.Y. Mar. 12, 2020) is misplaced. In Webb, a pro se plaintiff was unable to identify two

John Doe defendants. While discovery in Webb was already closed, the court nevertheless denied

a motion to dismiss the John Doe defendants, directed the Attorney General’s Office to identify

these two defendants, and granted the pro se plaintiff an extension of time to serve those

defendants. Notably, in Webb, the court had issued, at the outset of the litigation, an order—

pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d. Cir. 1997) (per curiam)—which directed the

Attorney’s General’s Office to identify the John Doe defendants in plaintiff’s complaint given

plaintiff’s pro se status. Despite this order, the Attorney General’s Office had failed to identify

the John Doe defendants at issue.

Webb is distinguishable on multiple grounds. Critically, Webb involved an incarcerated

pro se plaintiff who, unlike Neira, did not have the benefit of counsel during discovery. Moreover,

here, the County was not previously directed, in a Valentin order, to identify the John Doe

defendants.8 It is also notable that the court in Webb denied the motion to dismiss the John Doe

defendants less than two years after the filing of plaintiff’s complaint and the issuance of the

Valentin order. By contrast, the instant case has been pending since 2013 and plaintiff’s counsel

had four years in which to seek any necessary discovery in order to identify the John Doe

defendants.

Finally, plaintiff cites to a number of inapposite cases involving challenges to prison

disciplinary hearings. See, e.g., Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991).

None of these cases support plaintiff’s attempt to avoid dismissal of the John Doe plaintiffs.

Based on the foregoing, the Court finds plaintiff was afforded ample opportunity to identify

the John Doe officer defendants, yet has failed to do so. Therefore, plaintiff’s claims against the

John Doe defendants must be dismissed. See Caravalho v. City of New York, No. 13-CV-4174,

2016 WL 1274575, at *11 (S.D.N.Y. Mar. 31, 2016) (dismissing claims against John Doe officers

on summary judgment after plaintiffs were unable to discern their identities through discovery).

Accordingly, the Court dismisses the Second Amended Complaint as against the John Doe

defendants, without prejudice, in light of plaintiff’s failure to identify and serve them after the

completion of discovery.

8 The Court also notes that Valentin orders are particularly appropriate when a pro se plaintiff is incarcerated. Here,

plaintiff was not only represented by counsel during four years of discovery, but plaintiff was also released from prison

in 2016 and was apparently out of prison during most, if not all, of the ensuing four years during which discovery was

conducted. (ECF No. 63.)

C. Claims Against the NCCC and NCSD:

Plaintiff names the NCCC and the NCSD as defendants. However, “[i]t is well-established

that departments that are merely administrative arms of a municipality do not have an independent

legal identity apart from the municipality and, therefore, cannot sue or be sued.” Davis v.

Riverhead Correction Facility, No. 11-CV-5667, 2011 WL 6131791, at * 2 (E.D.N.Y. Dec. 6,

2011); see Gleeson v. County of Nassau, No. 15-CV-6487, 2019 WL 4754326, at *14 (E.D.N.Y.

Sept. 30, 2019) (finding NCSD and NCCC were not proper parties because they are administrative

arms of Nassau County). Since the NCCC and the NCSD are administrative arms of Nassau

County, without a legal identity separate and apart from the County, they lack the capacity to be

sued.

Accordingly, plaintiff’s claims against the NCCC and the NCSD are dismissed with

prejudice.

D. General Standards for Section 1983 Claims

Plaintiff alleges that the remaining defendants—the County and Sheriff Sposato—violated

his constitutional rights because he was denied adequate medical care, placed in the same housing

unit as the individual that had previously shot him in the head, and subjected to excessive force.

Plaintiff further claims that the County is liable for the acts of these individual defendants pursuant

to Monell v. Dep’t of Social Services, 436 U.S. 658 (1978) and that Sheriff Sposato is liable both

personally, and in his official capacity as a supervisory employee of the County.

Section 1983 provides a remedy for constitutional deprivations occasioned by state actors.

To maintain a Section 1983 claim, the plaintiff must establish that the conduct complained of: (1)

was committed by a person acting under color of state law; and (2) deprived the plaintiff of rights,

privileges, or immunities secured by the United States Constitution or laws of the United States.

See Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). Further, to sustain a Section 1983 action

against an individual defendant, “a plaintiff must show, inter alia, the defendant’s personal

involvement in the alleged constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d

133, 138 (2d Cir. 2013).

When a plaintiff asserts a Section 1983 claim against a municipal defendant, plaintiff must

also demonstrate that the constitutional deprivation “resulted from a municipal custom or policy.”

Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 122 (2d Cir. 1991). Municipal liability is “an

extension of liability, not an independent cause of action, and therefore requires an underlying

constitutional violation.” Soto v. City of New York, 132 F. Supp. 3d 424, 459 (E.D.N.Y. 2015)

(citing Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006)).

For the reasons discussed below, plaintiff’s Section 1983 claims fail as a matter of law.

E. Excessive Force

Plaintiff alleges excessive force claims under the Fourth and Fourteenth Amendments.9

Though his excessive force claim was dismissed as against the John Doe officers, the Court must

still address the County’s potential liability for plaintiff’s excessive force claim because

municipalities may be liable even where the plaintiff does not sue the individual tortfeasors and

proceeds solely against the municipality. Askins v. Doe No. 1, 727 F.3d 248, 253-54 (2d Cir.

2013). Additionally, the Court must evaluate plaintiff’s excessive force claim against Sheriff

Sposato in his individual capacity.10

9 The Court will evaluate plaintiff’s excessive force claim under the Fourteenth Amendment which protects pre-trial

detainees from the use of excessive force; whereas, the Fourth Amendment protects arrestees from excessive force

during an arrest. Graham v. Connor, 490 U.S. 386, 394, 395 n. 10 (1989). Additionally, the Court notes that plaintiff’s

second cause of action, a Section 1983 claim for cruel and unusual punishment, is duplicative of his first cause of

action, a Section 1983 claim for use of excessive force.

10 Plaintiff’s claims against Sherriff Sposato in his official capacity are redundant to the claims against Nassau County

and are therefore dismissed.

Plaintiff has identified the date and location of the alleged force and described the alleged

force. The Court assumes that plaintiff’s deposition testimony and evidentiary proffers would

allow a jury to find that the correction officers used excessive force during the alleged assault on

August 20.

However, as discussed below, because there is no evidence of municipal liability or

Sposato’s individual liability, plaintiff’s excessive force claims against the County and Sheriff

Sposato must be dismissed.

1. County’s Liability under Monell

Establishing the liability of the municipality requires a showing that the plaintiff suffered

a tort in violation of federal law committed by the municipal actors and, in addition, that their

commission of the tort resulted from a custom, policy or usage of the municipality. Monell, 436

U.S. at 690-91; Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012). Absent such a custom,

policy, or usage, a municipality cannot be held liable on a respondeat superior basis for the tort of

its employee. Monell, 436 U.S. at 691; -se-e -al-so- -C-on-n-i-ck- -v.- T-h-o-m-p-s-o-n, 563 U.S. 51, 60 (2011)

(holding that under Section 1983, governmental bodies are not vicariously liable for their

employees’ actions). Further, “it is not enough for a § 1983 plaintiff merely to identify conduct

properly attributable to the municipality. The plaintiff must also demonstrate that, through its

deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.” Bd. of

Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 404 (1997). A municipality is the

moving force behind the alleged injury where there is “a direct causal link between a municipal

policy or custom and the alleged constitutional deprivation.” Outlaw v. City of Hartford, 884 F.3d

351, 373 (2d Cir. 2018).

“[I]solated acts of excessive force by non-policymaking municipal employees are generally

not sufficient to demonstrate a municipal custom, policy, or usage that would justify municipal

liability.” Jones, 691 F.3d at 81 (citing Villante v. Department of Corrections of the City of New

York, 786 F.2d 516, 519 (2d Cir. 1986). However, “such acts would justify liability of the

municipality if, for example, they were done pursuant to municipal policy, or were sufficiently

widespread and persistent to support a finding that they constituted a custom, policy, or usage of

which supervisory authorities must have been aware, or if a municipal custom, policy, or usage

would be inferred from evidence of deliberate indifference of supervisory officials to such abuses.”

Id. (citing Amnesty, 361 F.3d at 125–26.) A plaintiff may “prevail against a municipality by

showing that the policymaking official was aware of the employee’s unconstitutional actions and

consciously chose to ignore them.” Id. (citing Amnesty Am., 361 F.3d at 126.) “Deliberate

indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a

known or obvious consequence of his action[,]” Connick, 563 U.S. at 61 (quotations and citation

omitted), and “requires a showing that the official made a conscious choice, and was not merely

negligent.” Jones, 691 F.3d at 81.

Plaintiff fails to meet this standard.

The bulk of plaintiff’s “Monell” evidence is unrelated to plaintiff’s excessive force claim

and instead concerns alleged deficiencies in the provision of medical care at the NCCC by Armor

and the County and other issues involving conditions of confinement at the NCCC, including

overcrowding.

In an effort to establish Monell liability for his excessive force claim, plaintiff relies

primarily on a Department of Justice (“DOJ”) investigation from 2000 which found that conditions

at the NCCC rose to the level of constitutional violations because the facility was deliberately

indifferent to inmates’ serious medical needs and the use of excessive force against inmates. (Pl.

Opp’n at 15; Pl. 56.1 ¶ 130; Antwork Decl., (“Pl. Ex. L”), ECF No. 134-14.) As a result of this

investigation, in 2002, the United States Attorney General filed a complaint in this Court alleging,

inter alia, that the NCCC engaged in a pattern or practice of using excessive force against inmates,

failed to train and supervise correctional staff adequately to prevent the use of excessive force,

failed to maintain policies pertaining to the use of force and failed to investigate complaints

alleging the use of excessive force. (Pl. Ex. L.) The lawsuit resulted in a consent decree that

directed the NCCC to make significant changes to its policies regarding the use of force and

required DOJ monitoring of the jail until 2008. (Id.) The consent decree, however, was vacated

in 2008 after it was determined that the jail was in compliance. (Id.; Pl. 56.1 ¶ 130.)

This report, litigation, and consent decree—which concerned conditions at the NCCC years

before plaintiff’s assault—is too attenuated to establish Monell liability on plaintiff’s excessive

force claim. See Zander v. City of New York, No. 17-CV-611, 2019 WL 1409440, at *6 (S.D.N.Y.

Mar. 28, 2019) (finding causal relationship between assault of plaintiff in 2015 and DOJ Report

addressing conduct between 2011 through 2013 was too attenuated to survive summary judgment

on Monell claim). Moreover, plaintiff’s reliance on this evidence is undermined by the fact that

the consent decree at issue was vacated in 2008 after it was determined that the jail was in

compliance with the consent decree.

None of plaintiff’s other Monell evidence establishes Monell liability for plaintiff’s

excessive force claim.

Plaintiff cites to a 1990 amendment to the Nassau County Charter that required the County

Executive to appoint a Board of Visitors for the NCCC. (Pl. Ex. L; Marone v. Nassau Cnty, 967

N.Y.S.2d 583, 585 (N.Y. Sup. Ct. 2013)) The Board of Visitors was tasked with, inter alia,

investigating inmate complaints and grievances. (Pl. Ex. L.) For years, no members were

appointed to the Board of Visitors. (Id.) In 2012, a civil suit was brought by the New York Civil

Liberties Union (“NYCLU”) to compel the Nassau County Executive to appoint members to the

Board of Visitors. (Id.) In March 2013, a state court ordered the County Executive to appoint a

full slate of seven members to the Board of Visitors within 90 days. (Id.) This evidence about the

County’s failure to appoint the Board of Visitors is too generalized and attenuated to establish

Monell liability for plaintiff’s excessive force claim.11 A jury could not find “a direct causal link”

between vacancies on the Board of Visitors and “the alleged constitutional deprivation” here.

Outlaw, 884 F.3d at 373.

Plaintiff also relies on two lawsuits filed by the NYCLU. In 2012, the NYCLU brought an

action on behalf of NCCC inmates concerning five inmate suicides occurring between 2010 and

2012 and the prison’s failure to meet minimum standards for medical care. (Pl. 56.1 ¶ 136; Pl.

Exs. H, L.) This is the same lawsuit discussed above in which the plaintiffs sought to compel the

County Executive to appoint members to the Board of Visitors. This lawsuit involved allegations

of inadequate medical care and the record does not indicate that this lawsuit even involved

allegations of excessive force. Plaintiff also cites to another lawsuit that the NYCLU filed against

the NCCC in 2011 for its alleged failure to comply with FOIL requests for the release of

information concerning the medical and mental health care of inmates. (Pl. 56.1 ¶ 134.)

These two lawsuits do not support plaintiff’s Monell claim as neither suit even involved

allegations of excessive force. Moreover, even if these suits did involve claims of excessive force,

11 Plaintiff’s 56.1 statement asserts, based on “information and belief,” that “after much delay, the board members

were only recently nominated and . . . confirmed by the County legislature.” (Pl. 56.1 ¶ 129.) A 56.1 statement is not

a complaint where facts may be alleged based on “information and belief.” Rather, a 56.1 statement must reflect

evidence that is actually in the record before the Court. In any event, even assuming that this is what occurred, it is

insufficient to establish Monell liability here.

“a plaintiff’s citation to a few lawsuits involving claims of alleged excessive force is not probative

of the existence of an underlying policy by a municipality, police department, or department of

corrections[.]” Ameduri v. Vill. of Frankfort, 10 F. Supp. 3d 320, 341 (N.D.N.Y. 2014) (citing

Jean–Laurent v. Wilkerson, 461 F. App’x. 18, 22–23 (2d Cir. 2012)).

Plaintiff also cites to a 2009 report from the New York State Commission of Correction

which found that the NCCC was not in compliance with the minimum standards for correctional

facilities. Notably, the 2009 report itself is not even part of the record before this Court. Instead,

plaintiff relies on a state court decision from the 2012 NYCLU lawsuit which summarizes this

report. (Pl. Ex. L.) According to the state court’s brief summary of the 2009 report, the report

identified twenty-five steps that the NCCC needed to take in order to comply with the required

minimum standards. The state court decision identifies three of these steps, stating that that the

NCCC needed to: (1) establish a sanitary shower environment; (2) provide laundry detergent; and

(3) stop ignoring inmate grievances. (Pl. Ex. L.) The record before this Court does not identify

the other twenty-two steps identified in the 2009 report and there is no evidence before the Court

that this report addressed allegations of excessive force. The evidence of the 2009 report before

this Court is clearly insufficient to establish Monell liability for plaintiff’s excessive force claim.12

Finally, plaintiff mentions, with no further explanation, that there were no cameras on

block B2A where plaintiff was assaulted. (Pl. Opp’n. at 16; Pl. 56.1 ¶¶ 56.1 61, 137). The Court

assumes that plaintiff is claiming that the County is liable because it failed to monitor the activities

occurring in the prison. However, “[i]f Plaintiff’s argument were correct, it would require

surveillance cameras to be installed in all areas at every prison where inmates” are at a risk of

12 At best, the general reference in this report to the jail ignoring inmate grievances might be somewhat helpful to

plaintiff. However, the record before this Court—which provides no further detail on this point—is insufficient to

establish Monell liability on plaintiff’s excessive force claim.

suffering unconstitutional misconduct. Lewis v. Hanson, No. 18-CV-12, 2020 WL 1812556, at

*11 (N.D.N.Y. Apr. 9, 2020) (rejecting claim that failure to install video surveillance cameras at

prison was grossly negligent). The fact that there were no cameras in the hallway where plaintiff

was assaulted is insufficient to raise a genuine issue of material fact that would preclude summary

judgment.

The Court has considered all of plaintiff’s Monell evidence cumulatively and concludes

that a reasonable jury could not find the County liable, under Monell, for the excessive force claim.

Beyond the facts of his own isolated incident, plaintiff has not identified sufficient evidence

suggesting the existence of any municipal policy or custom with respect to excessive force at the

NCCC. See Jones, 691 F.3d at 81; City of Oklahoma v. Tuttle, 471 U.S. 808, 823-824 (1985)

(“Proof of a single incident of unconstitutional activity is not sufficient to impose liability under

Monell, unless proof of the incident includes proof that it was caused by an existing,

unconstitutional municipal policy, which policy can be attributed to a municipal policymaker.”).

Therefore, because there is no evidence from which a reasonable jury could find that the alleged

violation of plaintiff’s rights was the result of a policy, practice, or custom of the County, the

County is entitled to summary judgement on plaintiff’s excessive force claim.

2. Sheriff Sposato’s Liability

“It is well-settled that personal involvement of defendants in alleged constitutional

deprivations is a prerequisite to an award of damages under § 1983.” Spavone v. New York State

Dep’t of Corr. Servs., 719 F.3d 127, 135 (2d Cir. 2013) (citation omitted). “An individual cannot

be held liable for damages under § 1983 ‘merely because he held a high position of authority[.]’”

Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 127 (2d Cir. 2004) (quoting

Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996)).

“Supervisory liability is a concept distinct from municipal liability, and is imposed against

a supervisory official in his individual capacity for his own culpable action or inaction in the

training, supervision, or control of his subordinates.” Carter, 394 F. Supp. 3d at 243 (quoting

Burwell v. Peyton, 131 F. Supp. 3d 268, 302 (D. Vt. 2015).  Until recently, plaintiffs could establish

the liability of a supervisory official for a subordinate’s conduct under Section 1983 by showing

that:

(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 the plaintiffs by failing to act on information indicating that

unconstitutional acts were occurring.

Tangreti v. Bachmann, 983 F.3d 609, 616 (2d Cir. 2020) (brackets omitted) (quoting Colon v.

Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). However, the Second Circuit recently held that “after

Iqbal, there is no special rule of liability for supervisors,” and instead, “[t]he violation must be

established against the supervisory official directly.” Id. at 618. Therefore, a government or prison

official is not personally involved in the violation of a plaintiff’s constitutional rights simply “by

reason of [the official’s] supervision of others who committed the violation.” Id. at 619. Rather,

“a plaintiff must plead and prove that each Government-official defendant, through the official’s

own individual actions, has violated the Constitution.” Id. at 618, 619 (explaining that, to establish

an Eighth Amendment deliberate indifference claim against a supervisory official, “the official

must know[ ]of and disregard[ ] 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 must also draw that inference.”) (internal quotations omitted).

Plaintiff has not met this standard on his excessive force claim. Plaintiff asserts, in

conclusory fashion, that Sheriff Sposato demonstrated deliberate indifference to his constitutional

rights by “fail[ing] to remedy the known, ongoing, constitutionally offensive conditions of the

NCCC and that he created, tolerated and/or condoned the policy and custom under which such

violations occurred.” (Pl. Opp’n. at 23). Yet plaintiff offers no evidence to establish that Sheriff

Sposato had any personal involvement in plaintiff’s alleged constitutional deprivation with respect

to the assault. Instead, plaintiff simply argues that “having been Sheriff from 2007 through 2017,

[Sposato] was charged with being: the overall oversight manager for multiple divisions in the

sheriff’s department; overall manager of the jail, including management of correction officers, . .

.; and the overall manager of the NCCC.” (Id.) Plaintiff cites to emails and reports sent to Sheriff

Sposato regarding conditions at the NCCC related to allegations of inadequate medical care and

inmate suicides between 2011 and 2012. (Pl. Ex. H.)13 Such evidence fails to demonstrate that

Sheriff Sposato knew of and disregarded an excessive risk to plaintiff’s health or safety. See

Tangreti, 983 F.3d at 619. Further, Sheriff Sposato testified that he did not even become aware of

the plaintiff until the County Attorney’s Office forwarded him plaintiff’s Second Amended

Complaint. (Sposato Dep. 27:23-28:21.) Even before Tangreti, courts recognized that “mere

‘linkage in the prison chain of command’ is insufficient to implicate a state commissioner of

corrections or a prison superintendent in a § 1983 claim.” Richardson v. Goord, 347 F3d 431, 435

13 Plaintiff’s Ex. H is a compilation of 23 pages of emails and reports that Sposato received concerning issues at the

Nassau County jail. Almost all of the emails concern issues involving medical care at the jail. Plaintiff’s 56.1

statement does not identify any emails concerning claims of excessive force. The Court notes that one email in this

exhibit dated April 15, 2011 does concern a claim of excessive force. Plaintiff, however, does not rely on this specific

email and, in any event, this email is clearly insufficient to establish Sposato’s personal involvement in the 2013

assault on plaintiff. The April 15, 2011 email simply recounts an internal affairs investigation into the allegations of

a single inmate who alleged that excessive force was used against him. Moreover, this email is not even helpful to

plaintiff as it indicates that Internal Affairs conducted a thorough investigation into the alleged use of excessive force.

This email—which plaintiff never even explicitly relies on—is clearly insufficient to establish Sposato’s personal

involvement or Monell liability on plaintiff’s excessive force claim.

(2d Cir. 2003) (quoting Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985); see also Wright v.

------------

Smith, 21 F.3d 496, 501 (2d Cir. 1994) (noting that a defendant in a Section 1983 action may not

be held liable for constitutional violations merely because he held a high position of authority).

Therefore, because there is no evidence to create a genuine issue of material fact that

Sheriff Sposato violated plaintiff’s constitutional rights, the Fourteenth Amendment excessive

force claim against him must be dismissed.

F. Inadequate Medical Care Claims – Deliberate Indifference

Plaintiff contends that defendants are liable under the Eighth and Fourteenth amendments

for the inadequate medical care he received while detained at the NCCC. Specifically, plaintiff

alleges that defendants violated his constitutional rights by: (1) denying him medical care

following the alleged assault, (SAC ¶ 47); (2) denying or unreasonably delaying his requests for

medical care and medication related to his pre-existing conditions, (SAC ¶ 51); and (3) denying or

ignoring his requests for a neurology visit and CAT scan. (SAC ¶ 52). He also claims that:

(1) given his blindness, he should have been given a bottom cell so that he would not fall down

the stairs; (2) he was not given necessary nutritional supplements; and (3) defendants caused him

to contract MRSA and failed to adequately treat this infection.

As discussed below, defendants are entitled to summary judgment because plaintiff has

failed to establish that he received inadequate medical care while he was incarcerated at the

NCCC.14

14 Defendants also argue that they are entitled to summary judgment on these claims because: (1) plaintiff cannot

establish Monell liability for these claims; and (2) plaintiff already dismissed Armor from this lawsuit. The dismissal

of Armor does not absolve the County of its potential liability for Armor’s conduct, see Gil v. Vogilano, 131 F. Supp.

2d 486, 493 (S.D.N.Y. 2001). As for the County’s Monell arguments, with one exception addressed below, the Court

declines to address the issue of Monell liability for plaintiff’s claims concerning his medical care because those

underlying claims fail on the merits.

1. Standard for Deliberate Indifference

To establish a claim based on constitutionally inadequate medical treatment, the plaintiff

must allege “acts or omissions sufficiently harmful to evidence deliberate indifference to serious

medical needs.”15 Estelle v. Gamble, 429 U.S. 97, 106 (1976). To prevail on a Fourteenth

Amendment deliberate indifference claim, a plaintiff must satisfy a two-part test: “(1) that the

alleged deprivation [of medical treatment] ‘pose[d] an unreasonable risk of serious damage to his

health,’ and (2) ‘that the defendant-official acted intentionally to impose the alleged condition, or

recklessly failed to act with reasonable care to mitigate the risk that the condition posed.’”

Adamson v. Miller, 808 F. App’x 14, 18 (2d Cir. 2020) (quoting Darnell, 849 F.3d at 30, 35).

The first part of the test is an objective determination, requiring the plaintiff to demonstrate

that “the inadequacy in medical care is sufficiently serious.” Salahuddin v. Goord, 467 F.3d 263,

280 (2d Cir. 2006). Analyzing this objective requirement involves two inquiries: “whether the

prisoner was actually deprived of adequate medical care,” and “whether the inadequacy in medical

care is sufficiently serious,” which in turn “requires the court to examine how the offending

conduct is inadequate and what harm, if any, the inadequacy has caused or will likely cause the

prisoner.” Id. at 279-80 (citations omitted) (“Only deprivations denying the minimal civilized

measure of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment [or

15 Plaintiff invokes both the Eighth and Fourteenth Amendments of the Constitution. However, it is unclear from the

record whether plaintiff was a pretrial detainee or an incarcerated prisoner at the time of the alleged constitutional

violations. This distinction is relevant as the Second Circuit held that the standard for deliberate indifference depends

on whether the plaintiff is a pre-trial detainee, in which case the claim arises under the Fourteenth Amendment, or a

convicted prisoner, in which case the claim arises under the Eighth Amendment. Darnell v. Pineiro, 849 F.3d 17, 32-

36 (2d Cir. 2017); see, e.g., A.T. ex rel. Tillman v. Harder, 298 F. Supp. 3d 391, 413 (N.D.N.Y. 2018) (discussing

relaxation of deliberate indifference standard for Section 1983 claims brought by pre-trial detainees). The record

suggests that plaintiff was a pretrial detainee until at least February 2014 when he pled guilty. Ultimately, whether

analyzed under the Eighth Amendment or the Fourteenth Amendment, plaintiff’s claims of deliberate indifference

fail. Thus, for purposes of this Memorandum and Order, the Court will consider plaintiff’s claims under the Fourteenth

Amendment which provides “slightly greater protection” to pre-trial detainees than the Eighth Amendment standard

applied to convicted prisoners. Carter v. Broome County, 394 F. Supp. 3d 228, 240 (N.D.N.Y. 2019) (citation

omitted).

Fourteenth Amendment] violation.”). “For a constitutional violation to occur based on deliberate

indifference to a prisoner’s medical need, the deprivation of medical care must be ‘sufficiently

serious’ in the sense that ‘a condition of urgency, one that may produce death, degeneration, or

extreme pain’ exists.” Yancey v. Robertson, 828 F. App’x 801, 803 (2d Cir. 2020) (summary

order) (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)). If a plaintiff alleges that

the prison provided inadequate care—rather than a failure to provide any treatment—the inquiry

focuses on “the particular risk of harm faced by a prisoner due to the challenged deprivation of

care, rather than the severity of the prisoner’s underlying medical condition, considered in the

abstract[.]” Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003) (citing Chance v. Armstrong,

143 F.3d 698, 702-03 (2d Cir. 1998)).

The second component of the deliberate indifference standard, the subjective prong, or

“mens rea prong” is defined objectively and requires showing that the defendant “acted with a

sufficiently culpable state of mind”— that is, with at least “deliberate indifference.” Warren v.

City of N.Y. Dep’t of Corr. Med. Staff, No. 17-CV-1125, 2021 WL 1163105, at *9 (E.D.N.Y.

Mar. 26, 2021); -se-e- a-ls-o -D-a-rn-el-l, 849 F.3d at 29. To satisfy the subjective prong, a plaintiff must

show that a defendant “acted intentionally to impose the alleged condition, or recklessly failed to

act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even

though the [defendant] knew, or should have known, that the condition posed an excessive risk to

health or safety.” Darnell, 849 F.3d at 35. Thus, a plaintiff must prove “that an official acted

intentionally or recklessly, and not merely negligently.” Id. at 36. “[M]ere medical malpractice

is not tantamount to deliberate indifference, but it may rise to the level of deliberate indifference

when it involves culpable recklessness, i.e., an act or a failure to act . . . that evinces ‘a conscious

disregard of a substantial risk of serious harm.’” Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir.

2000) (quoting Chance, 143 F.3d at 703 (internal quotation marks omitted)). Moreover, it is well-

established that “[a] claim based on an inmate’s disagreement with the defendants’ medical

judgment as to the proper course of treatment cannot support a constitutional claim for deliberate

indifference.” Mena v. City of New York, No. 13-CV-2792, 2018 WL 4328827, at *5 (E.D.N.Y.

Sept. 11, 2018) (citing Simpson v. Oakes, 640 F. App’x 86, 88 (2d Cir. 2016)).

2. Treatment for Plaintiff’s Injuries from the Alleged Assault

Plaintiff brings deliberate indifference claims for the allegedly insufficient treatment he

received for his injuries from the assault. These claims fail on multiple grounds.

i. Plaintiff’s Alleged Injuries Do Not Demonstrate a Sufficiently Serious Medical

Need

Plaintiff has not established, as a threshold matter, that his purported injuries were

sufficiently serious to give rise to a deliberate indifference claim. The entire record—including

plaintiff’s testimony, the Armor Progress notes, and the September 5 examination of plaintiff—

does not show that plaintiff suffered a sufficiently serious injury as a result of the assault. See,

e.g., Hathaway, 37 F.3d at 66 (condition must be a “condition of urgency, one that may produce

death, degeneration, or extreme pain”). “It is well established that more than minor discomfort or

injury is required in order for a plaintiff to demonstrate a serious medical need.” Cain v. Jackson,

No. 05-CV-3914, 2007 WL 2193997, at *5 (S.D.N.Y. July 27, 2007) (citation omitted). According

to the Armor Progress notes, prior to September 5, 2013 plaintiff complained about other ailments,

but made no mention of the assault, any injury caused by the assault, or any pain in plaintiff’s jaw.

Moreover, when plaintiff was examined on September 5, he had no visible injures. (Pl. Opp’n Br.

at 8 (admitting that “Plaintiff’s physical injuries may have dissipated by [September 5]); see also

Def. Ex. F (noting no injuries); Def. Ex. M (stating that no injuries were found).) A jury could not

find that plaintiff suffered a sufficiently serious injury as a result of the assault.

Moreover, even assuming arguendo that plaintiff’s injuries were sufficiently serious to

require some treatment under the Fourteenth Amendment, plaintiff does not have viable claims

based on the allegedly inadequate treatment he received.

ii. Alleged Delay in Treatment Between August 20 and September 5

Plaintiff claims that following the August 20, 2013 assault, corrections officers ignored his

request to go to the medical department and requests for a pencil and medical slip so that he could

request a sick visit at the medical department. (Pl. Dep. 75–81; Pl. Opp’n. at 17-18; Pl. 56.1 ¶

102.) Plaintiff contends that the corrections officers’ actions prevented him from obtaining

medical care for his injuries until September 5. Plaintiff asserts that the corrections officers

prevented him from receiving medical treatment in an effort to cover up the assault. (SAC ¶ 47.)

Plaintiff’s deliberate indifference claim based on these allegations fails.

First, there is insufficient evidence for a reasonable jury to find that corrections officers

prevented plaintiff from visiting the medical department between August 21 and September 4.

Plaintiff contends that he did not visit the medical unit during this time period and, instead, only

spoke with staff who delivered his medication. As a factual matter, this claim is patently absurd

given both the Armor progress notes and plaintiff’s own testimony that he could not recall or

remember when questioned about the specific interactions documented in these notes. Notably,

the handwriting and signatures on these progress notes indicate that three different individuals

entered detailed information regarding plaintiff’s health between August 22 and August 27, 2013.

And the information entered on these notes—which includes examination findings and

prescriptions for medication—makes it clear that these notes were the result of examinations at the

medical unit and were not from plaintiff’s interactions with the staff who simply delivered

medication to plaintiff’s cell.16 A reasonable jury could not find, based on plaintiff’s vague and

equivocal testimony and the Armor progress notes, that plaintiff was prevented from obtaining

appointments at the medical office between August 21 and September 4. As such, plaintiff’s claim

that he was denied medical treatment by the corrections officers fails.

Second, even assuming arguendo that a jury could find that the corrections officers

prevented plaintiff from going to the medical unit between August 20 and September 4, in order

for the County or Sheriff Sposato to be held liable, plaintiff would have to establish Monell liability

for the County and Sposato’s personal involvement in the violation. As explained previously,

plaintiff does not have a viable claim under either theory against defendants based on the alleged

conduct of the corrections officers in assaulting plaintiff. Relatedly, plaintiff also does not have

viable arguments under either theory to hold these two defendants liable for an underlying claim

based on the corrections officers withholding medical slips and preventing plaintiff from obtaining

a medical appointment between August 20 and September 4. Plaintiff has not pointed to any

Monell evidence which suggests a custom or policy involving correction officers withholding

medical slips and preventing inmates from being seen at the medical unit. Notably, even plaintiff

maintains that the officers’ actions were intended to cover up the assault. There is simply

insufficient evidence to establish Monell liability or Sposato’s liability for either the assault or the

attempted cover-up, which the corrections officers allegedly orchestrated by preventing plaintiff

16 Nothing in the record indicates that staff who are tasked with delivering medication to inmates can provide

additional medication for an inmate without the inmate first visiting the medical clinic.

from going to the medical department.17 Accordingly, defendants are entitled to summary

judgment on plaintiff’s claims against them based on the correction officers’ post-assault conduct.

iii. The Allegedly Inadequate Pain Medication that Plaintiff Received to Treat His Pain

from the Assault

Plaintiff appears to assert that, after he reported the assault on September 5, the treatment

he subsequently received was inadequate because he should have been given stronger pain

medication.18 (See Pl. 56.1 ¶ 123.) This claim fails.

Plaintiff’s claim that medical staff should have given him stronger medication than Tylenol

and Motrin for his pain does not demonstrate that Armor personnel were deliberately indifferent

to his medical condition. See Veloz v. New York, 339 F. Supp. 2d 505, 525 (S.D.N.Y. 2004)

(medical providers’ decision to prescribe Tylenol rather than stronger pain medication for

prisoner’s back condition did not state a claim for deliberate indifference); Vail v. Lashway, 9:12-

CV-1245, 2014 WL 4626490, at *14 (N.D.N.Y. Sept. 15, 2014) (“[T]he decision to choose one

form of pain medication over another . . . is not indicative of deliberate indifference.”). Given the

record concerning plaintiff’s purported injuries from the assault, a reasonable jury could not

conclude that the facility’s refusal to prescribe him stronger pain medication constituted deliberate

indifference.

17 Plaintiff maintains that there is evidence of widespread and patent deficiencies in the medical care that Armor

provided to inmates at the NCCC. As such, plaintiff maintains that he can establish Monell liability for his underlying

claims that he received inadequate medical care at the NCCC, including Armor’s failures to prescribe him necessary

medication and to send him for a CAT scan. (Because those claims of inadequate medical care ultimately fail on the

merits, it is unnecessary to reach the question of Monell liability for those claims). The Court notes that the specific

claim addressed above—namely, that the corrections officers withheld medical slips and prevented him from going to

the medical department in order to cover up the assault—is categorically different than plaintiff’s claims that Armor

provided inadequate medical care to plaintiff and other inmates who were seen by medical staff in the medical clinic.

Plaintiff’s “Monell” evidence concerning deficient medical care by Armor is insufficient to establish Monell liability

based on the actions of corrections officers who, in an effort to cover up the assault, prevented him from securing an

appointment at the medical unit.

18 Plaintiff does not identify any other specific actions that he claims the medical staff should have taken in September

2013 to treat his purported injuries from the alleged assault.

Notably, prior to his August 2013 arrest, plaintiff was using heroin and abusing the

oxycodone he had been prescribed. (Pl. Dep. 127–28, 137.) Upon his admission to the NCCC,

Plaintiff suffered through withdrawal. (Pl. 56.1 ¶ 17; Pl. Dep. 68:4-8.) Given all the circumstances

here, there was ample reason not to prescribe oxycodone for plaintiff’s complaints of pain and to

instead treat his pain with other medication. See Wright v. Genovese, 694 F. Supp. 2d 137, 160

(N.D.N.Y. 2010) (“[C]oncern about prescribing narcotic pain medication, on which inmates with

possible substance abuse issues could become dependent, may inform a medical judgment about

what drug to prescribe.”). Plaintiff cannot establish deliberate indifference concerning the pain

medication he received.

3. Plaintiff’s Pre-existing Condition from the Gunshot Wounds to His Head

With regard to plaintiff’s pre-existing condition, there is no dispute that plaintiff’s

traumatic brain injury and seizure disorder constitute serious medical conditions. However, the

evidence fails to demonstrate that defendants “failed to act with reasonable care to mitigate the

risk that his condition posed.” Darnell, 849 F.3d at 35. In fact, the evidence establishes that

plaintiff was treated somewhat regularly by medical staff at the NCCC and was prescribed

medications to treat his pre-existing conditions. (See Defs. Ex. L; Antwork Decl., Sick call

requests, (“Pl. Ex. F”), ECF No. 134-8.)

Plaintiffs raises various claims concerning the treatment he received for his pre-existing

conditions. All of these claims fail.

i. Plaintiff’s Pain Medication

Plaintiff argues that he should have been given stronger pain medication to treat the pain

from his pre-existing brain injury. This claim fails.

Plaintiff’s claim that medical staff should have given him stronger medication than Tylenol

and Motrin for his pain does not demonstrate that Armor personnel were deliberately indifferent

to his medical condition. See Veloz, 339 F. Supp. 2d at 525; Vail, 2014 WL 4626490, at *14.

Other points in the record further confirm why plaintiff does not have a viable deliberate

indifference claim based on the purportedly inadequate pain medication he received. In addition

to Tylenol and Motrin, Plaintiff was also eventually prescribed Neurontin, another medication to

treat pain. (Pl. Dep. 126; Pl. 56.1 ¶ 29.) And, as explained earlier, given plaintiff’s abuse of heroin

and oxycodone prior to his incarceration, there was ample reason not to prescribe oxycodone for

plaintiff’s complaints of pain and to instead treat his pain with other medication. See Wright, 694

F. Supp. 2d at 160. A reasonable jury could not find, based on the entire record, that stronger pain

medication was necessary here. Plaintiff cannot establish deliberate indifference concerning the

pain medication he received.

ii. Plaintiff’s Keppra Prescription

Plaintiff also raises a meritless claim concerning his Keppra medication, which he was

prescribed to treat seizures stemming from his brain injury.

Plaintiff complains that, while at NCCC, he was only given two doses of Keppra a day.

(Pl. 56.1 ¶ 30; Pl. Ex. F at NCSD 000248). Before his incarceration, plaintiff had been prescribed

three 500 mg dosages of Keppra per day by his neurologist and asserts that he should have received

the same dosage in jail. (Pl. 56.1 ¶¶ 28–30.) However, plaintiff’s Keppra blood levels were

checked at the NCCC. (Pl. 56.1 ¶ 31.) Armor progress notes indicate that, with this two dose

regimen, his Keppra levels were within normal limits. (Def. Ex. E (Jan. 20, 2014 progress note);

see also Def. Ex. J.) Plaintiff has no evidence to the contrary. At his deposition, plaintiff merely

testified that he did not know whether this test indicated that the level of Keppra in his blood was

within normal limits. (Pl. Dep. 134–35.) Plaintiff’s evidence concerning his Keppra prescription

is clearly insufficient to survive summary judgment.

It is also notable that plaintiff has not pointed to any evidence in the record that he actually

suffered from any seizures while he was housed at the NCCC and was taking only two doses of

Keppra per day. (See also Def. Ex. (Jan. 20, 2014 progress note stating that plaintiff had “no recent

seizures).) This point further supports the adequacy of his Keppra regimen and undermines his

claim here. See Price v. Reilly, 697 F. Supp. 2d 344, 359 (E.D.N.Y. 2010) (stressing that the

“mere fact that plaintiff’s underlying renal disease is a serious medical condition does not mean”

that the allegedly incorrect medication dosage he received in prison posed an objectively serious

health risk and noting that the plaintiff “failed to produce any evidence that his medication dosage

at the NCCC caused him any objectively serious harm”).

Plaintiff also filed a grievance about Keppra in which he complained that on one particular

day—September 10, 2013—he did not receive his Keppra medication. (Pl. 56.1 ¶ 81; Def. Ex. H.)

Medical records indicated that plaintiff did receive his seizure medication twice on September 10.

(Defs. Ex. H). Notably, when asked about this grievance at his deposition, plaintiff did not assert

that he received no Keppra on September 10 and instead claimed that his medication was

inadequate because he believed he was supposed to receive a third dose. (Pl. Dep. 133:6-10.) As

explained above, plaintiff’s claim that he needed to receive three doses of Keppra per day fails.

Even if plaintiff had offered evidence that he received no doses of Keppra on September

10, that would be insufficient to establish a viable claim. A failure to provide plaintiff with any

Keppra on one particular day would constitute a minor and inconsequential lapse in treatment—

that does not establish deliberate indifference. See Smith, 316 F.3d at 186 (explaining that a

“substantial risk of injury” may be absent where “although an inmate suffers from an admittedly

serious medical condition . . . the alleged lapses in treatment are minor and inconsequential”).

Plaintiff’s claims concerning Keppra are meritless and are dismissed.

iii. Neurologist Referral and CAT Scan

As an initial matter, it is “generally understood that ‘the ultimate decision of whether or

not to administer a treatment or medication is a medical judgment that, without more, does not

amount to deliberate indifference.’” Laurent v. Edwin, 28 F. Supp. 3d 69, 87 (E.D.N.Y. 2021)

(quoting Jacks v. Annucci, No. 18-CV-3291, 2019 WL 3239256, at *4 (S.D.N.Y. July 18, 2019)).

-Se-e-, -al-so- -e.-g-., -Sm--al-ls- v-. -W-r-ig-h-t, 807 F. App’x 124, 126 (2d Cir. 2020) (“[Defendants’] decisions

not to order an MRI and not to refer [plaintiff] to a specialist constitute matters of medical

judgment that do not give rise to [a constitutional] violation.”); Scott v. Laux, 07–CV–936, 2008

WL 4371778, at *4 (N.D.N.Y. Sept. 18, 2008) (“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 § 1983 claim.”).

Here, plaintiff cannot establish that his inability to obtain a neurology appointment and

CAT scan in the approximately four-month period between January and May 2014 resulted in

inadequate medical care and constituted deliberate indifference. By plaintiff’s own account, his

neurosurgeon told him that he was supposed to receive a CAT scan every six-to-twelve months.

Plaintiff has not even established that he went twelve months without a CAT scan while he was

incarcerated at the NCC between August 2013 and May 2014. Plaintiff admits that he received a

CAT scan sometime in 2013 prior to his August 2013 arrest, and that he was released in May 2014.

As such, plaintiff has not established that the alleged inadequacy in his medical care was

sufficiently serious or that Armor personnel were deliberately indifferent. “[I]t is the particular

risk of harm faced by the Plaintiff due to a challenged deprivation of care, rather than the severity

of [his] underlying medical condition, considered in the abstract, that is relevant” for a claim of

deliberate indifference. Cain, 2007 WL 2193997, at *6.

Additionally, even assuming arguendo that Armor should have ultimately approved a

neurology appointment and CAT scan, plaintiff cannot show that his inability to obtain that

appointment and CAT scan before his release in May 2014 constituted sufficiently inadequate

medical care to violate the Fourteenth or Eighth Amendments. While lengthy delays in waiting to

see a specialist can, in some circumstances, rise to the level of constitutional violation, here, only

around four months elapsed between plaintiff’s initial request for a neurology consultation and

CAT scan, and his release. Moreover, the Armor progress notes from February 2014 indicate that

the neurology visit was delayed because Armor was attempting to obtain plaintiff’s medical

records from his neurosurgeon. Such conduct does not establish deliberate indifference.

Defendants are entitled to judgment as a matter of law with respect to plaintiff’s deliberate

indifference claim concerning the neurology appointment and CAT scan.

iv. Bunk on Lower Floor

Plaintiff’s 56.1 Statement references a December 4, 2013 grievance in which plaintiff

requested a “bottom cell” so that he would not fall down the stairs due to his blindness. (Pl. 56.1

¶ 123.) The record contains no additional evidence about this issue, which does not appear to have

been addressed anywhere in plaintiff’s deposition testimony. It does not appear that this claim

was even raised in plaintiff’s most recent complaint. In any event, the record for this claim is

clearly insufficient to establish a deliberate indifference claim.

4. Nutritional Supplements

Plaintiff testified that he repeatedly requested nutritional supplements. (Pl. Dep. 137.) The

record, however, is devoid of any evidence to support plaintiff’s claim that he was denied adequate

nutrition. At his deposition, plaintiff explained that he made these requests because, prior to his

incarceration, he was “misusing” his oxycodone and using street drugs, which led to him losing a

lot of weight. (Pl. Dep. 137.) No doctor, however, told him that he needed nutritional supplements

and he never made any complaints about the nutritional quality of the food he received in prison.

(Pl. Dep. 137:3-140:12.) The record is clearly insufficient to establish that anyone at the NCCC

was deliberately indifferent for failing to provide plaintiff with nutritional supplements. Notably,

plaintiff’s summary judgment papers do not even identify what his weight was prior to, during,

and after his incarceration. (See Pl. Dep. 136 (plaintiff’s testimony that he could not remember

how much weight he had lost).)

5. MRSA

Plaintiff argues that as a result of defendants’ failure to properly treat plaintiff or address

his injuries from the assault he contracted MRSA. This claim is meritless.

At his deposition, plaintiff could not recall when or how he contracted MRSA. (Pl. Dep.

140–41.) Plaintiff, however, did recall that, at some point, he asked to be tested for MRSA. (Pl.

Dep. 141–42.) Records shows that, on September 19 and September 20, plaintiff submitted sick

call slips requesting that he be tested for MRSA. (Pl. Ex. F.) The medical staff then tested him

and, as a result of his positive test, he was treated with antibiotics and placed in isolation until he

recovered. (Id. 143:23-145:10.) Armor progress notes indicate that plaintiff was seen about this

infection on September 23, 2016 and the lab results came back on September 26, 2014 confirming

that plaintiff had MRSA. (Def. Ex. L; -se-e -a-ls-o Pl. Ex. G.) Plaintiff’s papers never articulate how

this evidence suggests deliberate indifference. There is simply no evidence that defendants’

treatment of plaintiff’s infection was deficient in any way.

G. Failure to Protect Claim

Plaintiff claims that defendants violated his Eighth Amendment rights by placing him in

fear for his life when they assigned him to the same housing area as prisoner Davis, who was

awaiting trial for shooting plaintiff in the head. (Pl. Opp’n. at 20-21.)

1. Background

Following his initial medical evaluation, on August 20, 2013, plaintiff was housed in BA2

for at least two weeks. (Pl. 56.1 ¶ 7.) According to plaintiff, he was then placed in E1G housing.

Plaintiff testified that he “believe[d]” that Davis—the person who shot him—was also housed in

E1G given the nature of their alleged crimes. (Id. ¶ 103; Pl. Dep. 36:22-37:22, 41:22; 50:14.)

When plaintiff was initially admitted to the NCCC on August 20, a notation was placed in his file

that he was to have no contact with Davis. (Pl Ex. B.)

On September 20, 2013, plaintiff was placed in “administrative segregation” because he

stated that he felt unsafe in his housing area, but provided no further information. (Tauster Decl.,

Administrative Segregation report, (“Defs. Ex. D”), ECF No. 133-8.) The Administrative

Segregation report states that plaintiff “tried to bring drugs into the jail when he was admitted,”

and notes that he has a friend in protective custody and that he “may be trying to manipulate his

housing location by stating he feels unsafe.” (Id.)

Plaintiff testified that, at the time, Davis and other inmates were sending him affidavits to

sign to help Davis’ defense in his upcoming trial for shooting plaintiff in the head. (Pl. Dep. 40:24-

42:3.) He stated that he became fearful of being housed with Davis after comments were made

about him “being a snitch and [Davis] having a shank.” (Id. 44:19-45:10; Pl. 56.1 ¶ 103.)

Plaintiff’s deposition testimony, however, does not indicate that he ever personally interacted with

Davis during his time at the NCCC. (See Pl. Dep. 44 (plaintiff’s testimony about unspecified “note

passing” and other inmates making “jokes” about Davis “being there”).)

According to his statement during an administrative segregation interview on September

23, 2013, plaintiff did not want to be in administrative segregation and stated that “[he] can live in

EIG/17. . . I think the person that shot me is in this housing area. I’m not saying anything.” (Defs.

Ex. D.) Plaintiff disputes whether he requested to be returned to general housing, but admits that,

in this report, he did, in fact, write that he was willing to live in the E1G/17 unit even though he

“believed” that Davis was located there. (Pl. Dep. 49:7-51:14.) Plaintiff testified that he “was

actually in a very bad shape at th[at] time” and that he made the September 23 report for

investigative purposes — to find out if Davis was actually located in E1G. (Pl. Dep. 49:12-51:2.)

Ultimately, a determination was made that plaintiff did not meet the criteria for protective

custody and was returned to general housing per his request. (Defs. Ex. D.) Plaintiff was

eventually moved from the E1G unit to a different housing unit. (Pl. Dep. 51:18–19.) The record

does not identify when this occurred.

In their reply papers, defendants submit additional evidence which indicates that Davis and

plaintiff were, in fact, never placed in the same housing area at the same time. (See Tauster Reply

Decl., housing assignments, (“Defs. Reply Ex. B.”) Specifically, defendants submitted a list of

Davis’ housing assignments from 2011 through 2016 and plaintiff’s housing assignments from

August 20, 2013 through January 23, 2014.19 (Id.)

19 The Court will consider this additional evidence that was submitted with defendants’ reply brief. Notably, Plaintiff

did not seek to file a sur-reply to address this additional evidence. See Ruggiero v. Warner-Lambert Co., 424 F.3d

249, 252 (2d Cir. 2005) (finding that “it is hard for [the non-moving party] to claim unfair prejudice now, because she

could have claimed surprise in the district court and sought to file a responsive sur-reply”); Bayway Ref. Co. v.

Oxygenated Mktg. & Trading A.G., 215 F.3d 219, 227 (2d Cir. 2000) (finding the district court properly considered

evidence submitted with plaintiff’s reply brief where, inter alia, the opposing party but did not seek leave to file a sur-

reply to respond to the new evidence).

2. Analysis

Plaintiff’s failure to protect claim assumes that Davis was, in fact, placed in the same

housing unit as Plaintiff. If, however, Davis was never actually housed with plaintiff, plaintiff’s

failure to protect claim necessarily fails. As explained below, a reasonable jury could not find,

based on the evidence in the record, that Davis was actually housed with plaintiff. Thus, plaintiff’s

failure to protect claim fails. Plaintiff’s claim also fails because he cannot establish Monell liability

for the County or Sposato’s individual liability for any underlying failure to protect claim.

The housing reports reveal that plaintiff was never actually housed with Davis during his

time at the NCCC from August 20, 2013 through January 23, 2014. According to the housing

assignment reports, when plaintiff was admitted to the NCCC on August 20, 2013, Davis was

housed in the E2E unit, where he remained until October 18, 2013 when he was moved to the B3C

unit. (Defs. Reply Ex. B at 3.) On November 22, 2013, Davis was moved to the B4D dorm. (Id.)

By contrast, plaintiff was housed in B2 housing until August 27, 2013 when he was moved

to E1G housing where he remained until October 21, 2013. (Id. at 5.) Plaintiff was not placed in

E2A housing until October 21, 2013 — three days after Davis was removed from E2E and placed

in the B3C unit. (Id.) Thus, the evidence demonstrates that plaintiff was never housed in the same

location as Davis during his incarceration in 2013 at the NCCC.

Moreover, even if the evidence submitted with defendants’ reply is not considered, the

other evidence in the record still fails to establish that plaintiff and Davis were ever housed in the

same unit. Plaintiff testified that when he was placed in B2A housing after his initial evaluation,

Davis was not there. (Pl. Dep. 36:19-37:2.) According to plaintiff’s testimony, approximately

two weeks later, he was placed in E1G housing and he “believe[d]” that Davis was also housed in

E1G given the “nature of the[ir] crime[s].” (Pl. Dep. 37:12-22, 42:4-22 (emphasis added).)

Plaintiff informed staff that “he thinks the person that shot him was in the same housing area, and

that he was in fear for his life.” (Pl. 56.1 ¶ 116; Defs. Ex. D at 2.) However, plaintiff never

definitively stated that Davis was, in fact, in the same housing area as him and has offered no

evidence to support this contention. Plaintiff’s speculative belief about Davis’s purported presence

in the same housing unit does not demonstrate that, in fact, he was ever actually housed with Davis.

Plaintiff even admitted at his deposition that he submitted his September 23 report about his

housing issue for investigative purposes because he was trying to confirm whether or not Davis

was located in his housing unit.

As the evidence in the record establishes that plaintiff was not placed in the same housing

unit as Davis, plaintiff cannot survive summary judgment on his failure to protect claim.

Finally, even if plaintiff could establish an underlying failure to protect claim based on

Davis’s housing assignment, plaintiff’s failure to protect claims against the County and Sposato—

the only defendants before the Court—would fail. There is insufficient evidence in the record to

establish Monell liability or Sposato’s individual liability on this failure to protect claim. Plaintiff

has not pointed to any evidence suggesting that the County had a custom or policy of failing to

protect inmates or any evidence that would establish Sposato’s personal involvement in this

alleged violation. Thus, plaintiff’s failure to protect claims fails on this ground as well.

E. State Law Claims

Having dismissed all of plaintiff’s federal claims, the Court declines to exercise

supplemental jurisdiction over plaintiff’s various state law claims. See In re Merrill Lynch Ltd.

P’ships Litig., 154 F.3d 56, 61 (2d Cir. 1998).

III. CONCLUSION

For the reasons set forth above, the Court GRANTS the defendants’ motions for summary

judgment and DISMISSES all of plaintiff’s federal claims with prejudice. Further, the Court

declines to exercise supplemental jurisdiction over any of plaintiff’s state law claims and

DISMISSES those state law claims without prejudice.

Although plaintiff paid the filing fee to commence this action, the Court certifies pursuant

to 28 U.S.C. § 1915(a)(3) that, should he seek in forma pauperis status for the purpose of an appeal,

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any appeal from this order would not be taken in good faith and therefore in forma pauperis status

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is denied. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

Dated: September 29, 2022 _____________/s/ (JMA)_____________

Central Islip, New York Joan M. Azrack

United States District Judge