Little v. County of Nassau

EASTERN DISTRICT OF NEW YORK

----------------------------------------------------------------------X

SHAKERIA LITTLE, Individually and as Administrator

of the Estate of Antwan Brown, Deceased

Plaintiff, MEMORANDUM & ORDER

14-CV-00125 (JMA) (SIL)

-against-

COUNTY OF NASSAU, NASSAU COUNTY

CORRECTIONAL CENTER, NASSAU COUNTY

SHERIFF’S DEPARTMENT, CORRECTION OFFICER

ROBERT LOBOSCO, CORRECTION OFFICER

THOMAS WALLACE, CORRECTION OFFICER

JEFFREY COLLETI, and CORPORAL KEVIN

CZUBAKOWSKI,

Defendants.

----------------------------------------------------------------------X

AZRACK, United States District Judge:

Presently before the Court is the motion by Defendants County of Nassau (“Nassau

County”), Nassau County Correctional Center (“NCCC”), Nassau County Sheriff’s Department

(“Sheriff’s Department”), Correction Officer Robert Lobosco (“Lobosco”), Correction Officer

Thomas Wallace (“Wallace”), Correction Officer Jeffrey Colleti (“Colleti”), and Corporal Kevin

Czubakowski (“Czubakowski,” and together with Lobosco, Wallace, and Colleti, the “Individual

Defendants”) for summary judgment dismissing this civil rights action pursuant to Federal Rule

of Civil Procedure 56. (ECF No. 114). Plaintiff Shakeria Little’s claims stem from the killing of

her brother, Antwan Brown (“Brown”), in the NCCC by another inmate on January 7, 2012.

For the reasons set forth below, the motion is GRANTED and this action is DISMISSED.

A. Facts

1. Brown’s Arrest and Guilty Plea

On November 25, 2010, Brown was arrested and charged with, among other things,

“Assault 2: With Intent To Cause Physical Injury To Officer/Fireman/EMT” in violation of N.Y.

PENAL LAW § 120.05-3. (Plaintiff’s Local Civil Rule 56.1 Statement of Material Facts (“Pl. 56.1”),

ECF No. 115-17 ¶ 7.) Following his arrest, Brown was held at the NCCC. (See id. ¶ 1.) On

January 4, 2012, Brown pled guilty to “attempted assault in the second degree” in violation of

PENAL LAW § 110. (Plea Transcript, ECF No. 114-6 at 2-3, 7-11; see also id. at 10 (Brown’s

allocution).) The New York State Supreme Court, Nassau County Criminal Term accepted

Brown’s plea “in full satisfaction of the entire indictment” and scheduled sentencing for February

6, 2012. (Id. at 11.)

2. Relevant Histories of Brown and Charles Creekmur Before January 7, 2012

On July 31, 2011 at 8:10 a.m., nonparty Charles Creekmur (“Creekmur”), an inmate at the

NCCC, requested to be placed in administrative segregation because he reported that he “ha[d]

been threatened by” unidentified Bloods gang members, he was “afraid” of unidentified Bloods

gang members, and he “d[id] not want any problems.” (Administrative Segregation Report, ECF

No. 115-12 at 2-3.) While NCCC documents dated January 8, 2012, report that Brown was a

Bloods gang member (Gang Intel Report, ECF No. 115-14), Creekmur’s request in July 2011 that

he be placed in administrative segregation did not mention Brown. (see generally, Administrative

Segregation Report, ECF No. 115-12.) The NCCC granted Creekmur’s request. (Id.)

On July 31, 2011 at 2:02 p.m., Brown was in an altercation with another inmate, Michael

Henney. (Disciplinary Report, ECF No. 115-13; see Defendants’ Reply Local Civil Rule 56.1

2

nonparty corrections officer observed Brown and Mr. Henney “fighting” and reported that both

inmates complied with verbal commands to stop fighting “w[ithout] further incident.”

(Disciplinary Report, ECF No. 115-13.) As a result of this event, Brown was deemed a sufficient

“threat to safety, security and good order of the facility” to warrant detention prior to the resulting

disciplinary hearing. (Id.)

3. The Killing of Brown on January 7, 2012

On January 7, 2012, the Individual Defendants comprised the four-person correction

officer “crew” assigned to the NCCC’s Blocks E-1-A and E-1-B. (Pl. 56.1, ECF No. 115-17 ¶ 16.)

Wallace was assigned to Block E-1-A, Lobosco was assigned to Block E-1-B, Colleti was assigned

to the control room, and Czubakowski was assigned to oversee both Blocks E-1-A and E-1-B. (See

id. ¶¶ 9-12.)

Block E-1-B contains fifty-two cells, with twenty-six cells on the first floor and twenty-six

cells on the second floor. (Id. ¶ 13.) On the second floor of that block, Brown was housed in cell

thirty-one and Creekmur was housed in cell thirty-three. (Id. ¶¶ 14-15; Def. 56.1, ECF No. 116-6

¶ 6). “Just after 6:00 AM,” Czubakowski counted the inmates in their cells. (Def. 56.1, ECF No.

116-6 ¶ 13.) Following that count, the cells on one level were opened and inmates were allowed

to eat the breakfast served in the common area. (Pl. 56.1, ECF No. 115-17 ¶ 17.) When the

breakfast line diminished, the cells on the other level were opened. (Id.) After the inmates were

afforded time to eat breakfast, “the gates [were] ‘racked,’ which indicated [to] the inmates that

they were to return to their cells.” (Id. ¶ 18.) “Following breakfast, each inmate was to be locked

1 Paragraph citations to Def. 56.1, ECF No. 116-4 correspond to Defendants’ responses to the numbered

paragraphs from Plaintiff’s counter statement of facts set forth in Pl. 56.1, ECF No. 115-17.

3

15.)

Creekmur, however, entered Brown’s cell and began to attack Brown shortly before the

cell’s door closed at approximately 6:45 a.m. (See, e.g., New York State Commission of

Correction Final Report, ECF No. 114-14 at ¶ 5 (documenting that Creekmur’s “undetected”

entrance into Brown’s cell allowed the two inmates to be “locked in Brown’s cell together” during

the attack).) Two inmates attest that the assault continued uninterrupted for several minutes.2 (See

Declaration of Devon A.L. Adams (“Adams Declaration”), ECF No. 115-7 ¶ 17 (reporting that

eight to ten minutes passed before corrections officers arrived); Statement from Richard Patterson

(“Patterson Statement”), ECF No. 115-15 at 2 (reporting that it was “a while” before corrections

officers arrived).3) Thereafter, Lobosco, who was on the first floor, “heard inmates

yelling[,] . . . went to the second tier of Block B to investigate[,] and signaled to Officer Colleti

and Corporal Czubakowski” in the control room for assistance. (Pl. 56.1, ECF No. 115-17 ¶ 19.)

Upon his arrival at cell 31, Lobosco observed that Brown and Creekmur were locked in Brown’s

cell together, Creekmur had Brown in a choke hold, and Creekmur was “hammer-fist[]” punching

Brown’s head. (Def. 56.1, ECF No. 116-6 ¶ 35.) Lobosco instructed Creekmur to release Brown,

but Creekmur refused and continued the attack. (Id.) Lobosco then deployed oleoresin capsicum

spray, otherwise known as pepper spray, on Creekmur. (Id.; see Lobosco Dep. Tr., ECF No. 114-

2 Defendants do not counter that the uninterrupted portion of the assault was shorter. (See Def. 56.1, ECF No.

116-6 ¶¶ 32, 46).

3 The Court accepts the Patterson Statement as sworn because it acknowledges that any false statements therein

are punishable under N.Y. PENAL LAW section 210.45. (Patterson Statement, ECF No. 115-15 at 1); see People v.

Sincerbeaux, 27 N.Y.3d 683, 688 (2016) (finding statement acknowledging consequences of PENAL LAW § 210.45

was sworn); see also Gelzer v. Fischer, No. 07-CV-2282, 2007 WL 3539598, at *7 (E.D.N.Y. Nov. 14, 2007)

(explaining that PENAL LAW § 210.45 allows prosecution for submitting a false written statement even if the statement

is not sworn before a judge or a notary).

4

dispute what happened next.

According to Defendants, the pepper spray “immediately” forced Creekmur to release

Brown, Czubakowski arrived “seconds” later, Lobosco stated “we have two guys in there

fighting,” and Lobosco signaled to the control room to open the cell. (Lobosco Dep. Tr., ECF No.

114-8 at 72:22-75:6.) Then, Colleti opened Brown’s cell from the control room, alerted Wallace

to the situation, and called medical personnel. (Colleti Dep. Tr., ECF No. 114-9 36:2-25; see Pl.

56.1, ECF No. 115-17 ¶ 26 (Plaintiff agreeing that Colleti called the medical team within 35

seconds of learning about the situation).) Next, Lobosco and Czubakowski (1) entered the cell,

(2) observed Brown breathing on the ground while making “gurgling” noises, (3) took Creekmur,

once medical personnel arrived, to “decontaminate” from the pepper spray, (4) moved Creekmur

to a cell on Block E-1-A, and (5) returned to Brown’s cell on Block E-1-B. (See Lobosco Dep.

Tr., ECF No. 114-8 at 81:4-83:9; Czubakowski Dep. Tr, ECF No. 114-10 at 61:2-25). Defendants

report that these events occurred across approximately two minutes, and that the medical staff’s

efforts to aid Brown—which involved CPR and a defibrillator—continued thereafter. (Lobosco

Dep. Tr., ECF No. 114-8 at 81:23-83:25.)

According to Adams, an inmate who reportedly saw part of the assault but “could not see

it all”, Lobosco deploying pepper spray into the cell was “not effective,” it took “two to three”

additional minutes before NCCC personnel went into the cell and “pulled Creekmur off of Brown,”

and “between six and ten” additional minutes passed before medical personnel arrived and

rendered aid to Brown. (Adams Decl., ECF No. 115-7 ¶¶ 12, 17-18. But see Patterson Statement,

ECF No. 115-15 at 2 (reporting that Creekmur “stopped beating up” Brown when the pepper spray

“got into his eyes”).)

5

compression sustained from Creekmur’s attack. (Def. 56.1, ECF No. 116-6 ¶ 36.) On July 10,

2014, Creekmur was convicted of First Degree Manslaughter in violation of PENAL LAW § 125.20

for killing Brown. (Pl. 56.1, ECF No. 115-17 ¶ 33.)

B. Procedural History

On January 7, 2014, Plaintiff, who in addition to being Brown’s sister is also the

administrator of Brown’s estate, commenced this civil rights action by filing the Complaint. (ECF

No. 1.) On May 28, 2015, Plaintiff filed the operative pleading: the Second Amended Complaint

(“SAC”). (ECF No. 42.) The SAC brought the following two causes of action against the instant

Defendants under 42 U.S.C. § 1983 (“Section 1983”): (1) violations of the Fourteenth Amendment

based on the Individual Defendants’ failure to “adequately prevent and respond to” the assault on

Brown; and (2) municipal liability under Monell v. Dep’t of Soc. Servs. of City of New York, 436

U.S. 658 (1978) and its progeny.4 (Id. ¶¶ 58-93). Plaintiff brought her claims against the

Individual Defendants in both their individual and official capacities. (Id. ¶¶ 14-17.)

On July 22, 2022, Defendants requested a pre-motion conference pursuant to the

undersigned’s Individual Practice Rules to obtain leave to file the instant motion. (ECF No. 103.)

After the Court waived its pre-motion conference requirement, adopted the parties’ initial proposed

briefing schedule, and granted multiple joint requests to extend the briefing schedule (see Orders

dated Aug. 22, 2022, Oct. 3, 2022, Dec. 12, 2022, Feb. 13, 2023), briefing for the motion concluded

on April 28, 2023. (ECF Nos. 114-116).

4 The SAC also brought negligence and medical malpractice claims against certain additional defendants in

connection with the aid provided to Brown after the attack. (See ECF No. 42 ¶¶ 94-118.) Those defendants were

dismissed with Plaintiff’s consent on September 6, 2018. (ECF No. 80.)

6

A. Summary Judgment

Summary judgment must be granted when 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). “An issue

of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party. A fact is material if it might affect the outcome of the suit under the governing

law.” Choi v. Tower Research Capital LLC, 2 F.4th 10, 16 (2d Cir. 2021); see McKinney v. City

of Middletown, 49 F.4th 730, 737 (2d Cir. 2022) (“No genuine dispute of material fact exists when

the record taken as a whole could not lead a rational trier of fact to find for the non-moving

party.” (internal quotation marks omitted)). “The moving party bears the initial burden of showing

that there is no genuine dispute as to a material fact.” Jaffer v. Hirji, 887 F.3d 111, 114 (2d Cir.

2018) (internal quotation marks omitted). For any burden of proof that rests with the nonmoving

party, the movant can “point[] to a lack of evidence to go to the trier of fact on an essential element

of the nonmovant’s claim.” Id. (internal quotation marks and alterations omitted). Once the

moving party carries its burden, “the nonmoving party must come forward with evidence that

would be sufficient to support a jury verdict in its favor.” McKinney, 49 F.4th at 738 (internal

quotation marks omitted). In this analysis, the Court must “construe the evidence in the light most

favorable to the non-moving party and draw all reasonable inferences in its favor.” ING Bank N.V.

v. M/V Temara, 892 F.3d 511, 518 (2d Cir. 2018). Ultimately, “[t]he role of the district court on

summary judgment is ‘not to resolve disputed issues of fact but to assess whether there are any

factual issues to be tried.’” McKinney, 49 F.4th at 738 (quoting Brod v. Omya, Inc., 653 F.3d 156,

164 (2d Cir. 2011)).

7

“Section 1983 provides a civil claim for damages against any person who, acting under

color of state law, deprives another of a right, privilege or immunity secured by the Constitution

or the laws of the United States.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999);

see 42 U.S.C. § 1983. “It is well-settled that § 1983 does not create a federal right or benefit; it

simply provides a mechanism for enforcing a right or benefit established elsewhere.” Morris-

Hayes v. Bd. of Educ., 423 F.3d 153, 159 (2d Cir. 2005); see Moroughan v. Cnty. of Suffolk, 514

F. Supp. 3d 479, 511 (E.D.N.Y. 2021) (similar). Accordingly, “[t]he factors necessary to establish

a § 1983 violation will vary with the constitutional provision at issue because the elements of

different constitutional violations vary.” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020)

(internal quotation marks and alterations omitted); see Albright v. Oliver, 510 U.S. 266, 271 (1994)

(“The first step in any [Section 1983] claim is to identify the specific constitutional right allegedly

infringed.”).

To “establish a defendant’s individual liability in a suit brought under § 1983, a plaintiff

must show . . . the defendant’s personal involvement in the alleged constitutional deprivation.”

Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013). To do so, “a plaintiff must plead

and prove ‘that each Government-official defendant, through the official’s own individual actions,

has violated the Constitution.’” Tangreti, 983 F.3d at 618 (quoting Ashcroft v. Iqbal, 556 U.S. 662,

676 (2009)).

A Section 1983 claim against a municipality is governed by Monell v. Dep’t of Soc. Servs.

of City of New York, 436 U.S. 658 (1978) and its progeny. “Monell expressly prohibits respondeat

superior liability for municipalities . . . meaning that a plaintiff must demonstrate that ‘through its

deliberate conduct, the municipality was the “moving force” behind the injury alleged.’” Agosto

8

Brown, 520 U.S. 397, 404 (1997)). “The elements of a Monell claim are (1) a municipal policy or

custom that (2) causes the plaintiff to be subjected to (3) the deprivation of a constitutional right.”

Id. at 97; see Frost v. New York City Police Dep’t, 980 F.3d 231, 257 (2d Cir. 2020).

III. DISCUSSION

A. The Claims Against The NCCC, Sheriff’s Department, and Individual Defendants in

Their Official Capacities Must Be Dismissed

Defendants contend that the NCCC and Sheriff’s Department must be dismissed as non-

suable entities, and the official capacity claims against the Individual Defendants must be

dismissed as redundant to the claims against Nassau County. (See Defendants’ Memorandum Of

Law (“Def. Mem.”), ECF No. 114-16 at 13-15). Plaintiff failed to respond to those arguments.

(See generally, Plaintiff’s Opposition Memorandum Of Law (“Opp.”), ECF No. 115-18.) Courts

may “infer from a party’s partial opposition [to summary judgment] that relevant claims or

defenses that are not defended have been abandoned.” Jackson v. Fed. Express, 766 F.3d 189, 198

(2d Cir. 2014). Accordingly, Plaintiff abandoned those claims. See id. at 196-97 (affirming

dismissal of claims as abandoned during summary judgment briefing); Malik v. City of N.Y., 841

F. App’x 281, 284 (2d Cir. 2021) (similar).

Even if Plaintiff had not abandoned them, the claims against the NCCC and Sheriff’s

Department must be dismissed. “Under New York law, departments that are merely administrative

arms of a municipality do not have a legal identity separate and apart from the municipality and,

therefore, cannot sue or be sued.” E.g., Rose v. Cnty. of Nassau, 904 F. Supp. 2d 244, 247

(E.D.N.Y. 2012). For that reason, “[i]t is well established” that Plaintiff cannot maintain her claims

against the NCCC and the Sheriff’s Department. Gazzola v. Cnty. of Nassau, No. 16-CV-0909,

9

2019 WL 4754326, at *14 (E.D.N.Y. Sept. 30, 2019).

Likewise, even if Plaintiff had not abandoned them, the claims against the Individual

Defendants in their official capacities must be dismissed. “[A]n official-capacity suit against a

municipal official ‘is, in all respects other than name, to be treated as a suit against the

governmental entity.’” Quinones v. City of Binghamton, 997 F.3d 461, 466 n.2 (2d Cir. 2021)

(quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)) (internal alterations omitted). For that

reason, “[w]ithin the Second Circuit, where a plaintiff names both the municipal entity and an

official in his or her official capacity, district courts have consistently dismissed the official

capacity claims as redundant.” Phillips v. Cnty. of Orange, 894 F. Supp. 2d 345, 385 n.35

(S.D.N.Y. 2012) (collecting cases). Thus, “because the County is named in the [SAC], the claims

against [the Individual Defendants] in their official capacities must be dismissed as duplicative

and redundant.” Stancati v. Cnty. of Nassau, No. 14-CV-2694, 2015 WL 1529859, at *2 (E.D.N.Y.

Mar. 31, 2015); see Gleeson, 2019 WL 4754326, at *13 n.21 (similar); Reid v. Nassau Cnty.

Sheriff’s Dep’t, No. 13–CV–1192, 2014 WL 4185195, at *11 (E.D.N.Y. Aug. 20, 2014) (similar).

B. Brown was Protected By The Fourteenth Amendment on January 7, 2012

The parties dispute whether, when he was killed, Brown was protected by the Fourteenth

Amendment or the Eighth Amendment. See Darby v. Greenman, 14 F.4th 124, 128 (2d Cir. 2021)

(describing the differences in how these Amendments apply and their standards for challenging

conditions of confinement). Defendants contend that Brown was subject to the Eighth Amendment

on January 7, 2012 because he pled guilty three days earlier. (Def. Mem., ECF No. 114-16 at 3-

4.) Defendants argue that Plaintiff’s claims for violations of the Fourteenth Amendment must

therefore be dismissed. (Id.) Plaintiff counters that her Fourteenth Amendment claims are proper

10

Darby, 14 F.4th at 128 (explaining that, before the Eighth Amendment applies, the Fourteenth

Amendment provides due process rights that “are at least as great as” Eighth Amendment

protections (internal quotation marks omitted)).

The Court agrees with Plaintiff that Brown was subject to Fourteenth Amendment

protections on January 7, 2012. The Supreme Court has long held that “the Eighth Amendment’s

protections d[o] not attach until after conviction and sentence.” Graham v. Connor, 490 U.S. 386,

392 n.6 (1989) (emphasis added); see also Adamson v. Miller, 808 F. App’x 14, 19 n.3 (2d Cir.

2020) (same); United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999) (same). Accordingly, the

Court will not dismiss Plaintiff’s claims for Fourteenth Amendment violations on the ground that

Brown was instead subject to the Eighth Amendment.5

C. The Fourteenth Amendment Failure To Protect Claims Fail

“[P]rison officials have a duty to protect prisoners from violence at the hands of other

prisoners.” Walker v. Schult, 717 F.3d 119, 128 (2d Cir. 2013) (quoting Farmer v. Brennan, 511

U.S. 825, 833 (1994)). Not every injury suffered by one inmate at the hands of another imposes

constitutional liability on officials responsible for the victim’s safety. Farmer, 511 U.S. at 834.

Rather, an official must act with “deliberate indifference to a substantial risk of serious harm to an

inmate.” Id. at 828.

A plaintiff must make two showings to prove a deliberate-indifference claim under the

Fourteenth Amendment, including when invoking a theory of failure to protect against (i.e.,

5 Defendants erroneously argued that this Court “recently found” that “upon a plea of guilty, the Fourteenth

Amendment is inapplicable.” (Def. Mem., ECF No. 114-16 at 4 (citing Neira v. Cnty. of Nassau, No. 13-CV-07271,

2022 WL 4586045, at *15 n.15 (E.D.N.Y. Sept. 29, 2022)).) On the contrary, the undersigned did not determine when

the Eighth Amendment applied in Neira; the undersigned noted there that the plaintiff’s claims failed under both the

Fourteenth and Eighth Amendment standards. See 2022 WL 4586045, at *15 n.15.

11

were sufficiently serious to constitute objective deprivations of the right to due process.” Darnell

v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). The second is “a ‘subjective prong’ . . . showing that

the officer acted with at least deliberate indifference to the challenged conditions.” Id. Defendants

assert that Plaintiff put forth no admissible evidence to support either showing on a failure to

protect claim. (Def. Mem., ECF No. 114-16 at 6.) The Court agrees with Defendants.

1. Plaintiff Failed To Satisfy the Objective Prong

To establish an objective deprivation, Plaintiff “must show that the conditions, either alone

or in combination, pose[d] an unreasonable risk of serious damage to [Brown’s] health.” Darnell,

849 F.3d at 30 (quoting Walker, 717 F.3d at 125). In other words, the conditions must pose a

“substantial risk of serious harm.” Lewis v. Siwicki, 944 F.3d 427, 431 (2d Cir. 2019) (applying

objective prong in Eighth Amendment context); see also Darnell, 849 F.3d at 30 (explaining that

the objective prong is the same under the Eighth and Fourteenth Amendments). There is no “static

test” to determine whether a deprivation is sufficiently serious; instead, “the conditions themselves

must be evaluated in light of contemporary standards of decency.” Darnell, 849 F.3d at 30 (quoting

Blissett v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995)); Walker, 717 F.3d at 125 (quoting Jabbar v.

Fischer, 683 F.3d 54, 57 (2d Cir. 2012)). In cases brought under a failure to protect theory, “it does

not matter . . . whether a prisoner faces an excessive risk of attack for reasons personal to him or

because all prisoners in his situation face such a risk.” Farmer, 511 U.S. at 843. Thus, “a plaintiff

may satisfy the objective element by showing either a substantial risk of harm from ‘a specific

assailant’ or ‘a more general risk of harm due to the conditions at the time of the attack.’” Ataroua

v. Tamir, No. 22-CV-10371, 2023 WL 2216139, at *3 (S.D.N.Y. Feb. 22, 2023) (quoting Hurst v.

Perez, No. 15-CV-4703, 2017 WL 187532, at *2 (S.D.N.Y. Jan. 13, 2017)).

12

case, is a sufficiently serious deprivation” to satisfy the objective prong. (Opp., ECF No. 115-18

at 4.) Some courts in this Circuit have found that suffering severe injuries independently satisfies

the objective prong. See Gordon v. Drummond, No. 19-CV-8405, 2021 WL 5314604, at *7

(S.D.N.Y. Nov. 16, 2021) (collecting cases), report and recommendation adopted, 2022 WL

884971 (S.D.N.Y. Mar. 25, 2022). The undersigned, however, agrees with the many courts in this

Circuit that held “the focus of inquiry must be, not the extent of the physical injuries sustained in

an attack, but rather the existence of a ‘substantial risk of serious harm.’” Heisler v. Kralik, 981

F. Supp. 830, 837 (S.D.N.Y. 1997) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)), aff’d, 164

F.3d 618 (2d Cir. 1998); e.g., Walker v. George, No. 21-CV-6070, 2022 WL 2290634, at *5

(S.D.N.Y. June 24, 2022) (same). To accept that the mere occurrence of a serious harm satisfies

the objective prong of a claim for failure to protect against an inmate attack would eschew

determining whether “the risk” of such an attack and resulting injuries “was substantial.” Lewis,

944 F.3d at 432 (emphasis added). To be sure, the Second Circuit has made clear that part of what

must “be[] assessed” is the “variable concept” of “risk.” Id.; see also id. at 431-33 (accepting that

a slash to the face was a serious harm and separately analyzing whether the risk of that harm was

substantial). Accordingly, this Court will evaluate the existence of a substantial risk of serious

harm from the assailant and general circumstances at the time of the attack. See, e.g., Ataroua,

2023 WL 2216139, at *3; Hurst, 2017 WL 187532, at *2.

a. Plaintiff Put Forth no Evidence That Brown Faced a Substantial Risk of Serious

Harm From Creekmur

“Courts may find a substantial risk of serious harm where there is evidence of a previous

altercation between a plaintiff and his attacker, coupled with a complaint by the plaintiff regarding

the altercation or a request by the plaintiff to be separated from the attacker.” Colds v. Smyth, No.

13

Orange, No. 19-CV-10485, 2020 WL 5209816, at *3 (S.D.N.Y. Sept. 1, 2020)). The evidence

Plaintiff put forth cannot substantiate this showing.

Plaintiff contends that “some type of conflict” occurred on January 6, 2012 between Brown

and Creekmur on a handball court. (Def 56.1, ECF No. 116-6 ¶ 8.) Plaintiff supports that vague

assertion with notes from the police investigation into Brown’s death, which summarize dozens of

inmate interviews (“Inmate Interview Notes”). (Id. (citing Inmate Interview Notes, ECF No. 115-

5).) “Police reports contain double hearsay—i.e., the first level being the report itself, and the

second level the hearsay in the document. Double hearsay is admissible if each level of hearsay

satisfies a hearsay exception.” Hardy v. Adams, 654 F. Supp. 3d 159, 172 (N.D.N.Y. 2023)

(quoting United States v. Carneglia, 256 F.R.D. 384, 392 (E.D.N.Y. 2009)); see United States v.

Bortnovsky, 879 F.2d 30, 34 (2d Cir. 1989) (holding that a party must establish that both a report

and the third-party statements recounted therein fall within a hearsay exception). “[A]t summary

judgment, the ‘proponent of an out-of-court statement [offered for its truth] bears the burden of

proving it fits into a hearsay exception.’” Great Lakes Reinsurance (UK) SE v. Herzig, No. 16-

CV-9848, 2023 WL 4266012, at *5 (S.D.N.Y. June 29, 2023) (quoting Evans v. Port Auth. of New

York & New Jersey, 192 F. Supp. 2d 247, 263 n.121 (S.D.N.Y. 2002)) (internal alterations omitted).

Plaintiff, however, offers no reason why she should be able to rely on the hearsay statements in the

Inmate Interview Notes. (See Opp., ECF No. 115-18 at 15 (discussing Inmate Interview Notes).)

As such, the Court disregards those inadmissible hearsay statements. See Delaney v. Bank of Am.

Corp., 766 F.3d 163, 169-70 (2d Cir. 2014) (affirming refusal to consider document on summary

judgment because it contained “inadmissible hearsay—an out-of-court statement that [plaintiff]

would rely on to show the truth of the matter asserted”); United States v. Scali, No. 16-CR-466,

14

law enforcement notes were inadmissible hearsay), aff’d, 820 F. App’x 23 (2d Cir. 2020); Brown

v. Pagan, No. 08-CV-8372, 2010 WL 1430702, at *1 (S.D.N.Y. Apr. 8, 2010) (declining to admit

certain statements recounted in a police report absent an applicable hearsay exception).

Similarly, Plaintiff relies on the portion of the Adams Declaration asserting that Creekmur

wanted to injure Brown because the latter called the former a “faggot” on January 6, 2012. (Opp.,

ECF No. 115-18 at 16.) These statements too are based on hearsay. Adams admits he “became

aware” of that reported verbal exchange “through conversations” with others (Adams Decl., ECF

No. 115-7 ¶¶ 4-7). Again, Plaintiff provides no argument that the statements made to Adams

reporting this event fall into a hearsay exception. (See Opp., ECF No. 115-18 at 16); Herzig, 2023

WL 4266012, at *5; Evans, 192 F. Supp. 2d at 263 n.121. Accordingly, the Court disregards this

portion of the Adams Declaration.6 See FED. R. CIV. P. 56(e) (requiring affidavits submitted on

summary judgment to be based on “personal knowledge” and set forth facts “as would be

admissible in evidence” to which the affiant could competently testify); Major League Baseball

Properties, Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008) (holding that “[h]earsay

testimony that would not be admissible if testified to at the trial may not properly be set forth in

[an] affidavit” on summary judgment (internal quotation marks omitted)); Amnesty Am. v. Town

of W. Hartford, 361 F.3d 113, 131 n.12 (2d Cir. 2004) (similar).

6 In any event, the reported “verbal statements alone do not indicate a substantial threat of serious harm.”

Dennis v. Westchester Cnty. Jail Corr. Dep’t, 485 F. App’x 478, 481 (2d Cir. 2012) (internal quotation marks omitted)

(addressing inmate calling another inmate a “faggot”); see Hines v. Lacy, 189 F.3d 460, No. 98–2961, 1999 WL

642915, at *3 (2d Cir. Aug. 20, 1999) (summary order) (“Hines’s sketchy description of a verbal confrontation does

not sufficiently allege conditions posing a substantial risk of serious harm . . . .” (internal quotation marks omitted));

Ewers v. City of New York, No. 17-CV-1116, 2021 WL 2188128, at *6 (S.D.N.Y. May 28, 2021) (similar), motion

for relief from judgment denied, 2023 WL 1869036 (S.D.N.Y. Feb. 9, 2023).

15

between Brown and Creekmur.7 See McDaniel v. City of New York, No. 19-CV-8735, 2022 WL

421122, at *9 (S.D.N.Y. Jan. 11, 2022) (dismissing failure to protect claims because plaintiff failed

to “establish[] a previous altercation with” the assailant); report and recommendation adopted,

2022 WL 421122 (S.D.N.Y. Feb. 11, 2022); Ewers, 2021 WL 2188128, at *6 (similar); James v.

Orange Cnty. Corr. Facility, No. 09-CV-7226, 2011 WL 5834855, at *6 (S.D.N.Y. Nov. 18, 2011)

(similar).

Finally, even assuming for the sake of argument that Plaintiff provided evidence of a prior

altercation between Brown and Creekmur, Plaintiff still failed to offer evidence showing that

Brown complained about any such altercation or otherwise requested to be separated from

Creekmur.8 See Colds, 2023 WL 6258544, at *7 (finding no serious risk of harm from an attacker

where plaintiff had not previously “told anyone about the threats or otherwise made a complaint”);

Leckie v. City of New York, No. 18-CV-3917, 2021 WL 84234, at *5 (E.D.N.Y. Jan. 11, 2021)

(granting summary judgment dismissing failure to protect claim where plaintiff had not previously

“complained about his attackers” or “raised concerns about his safety”); McDaniel, 2022 WL

421122, at *9 (similar).

7 The evidence showing that Brown, the victim, had previously been in a fight and was a gang member does

not indicate that Creekmur, the perpetrator, posed a risk of harm to Brown. See Williams v. Salvucci, No. 20-CV-

5098, 2022 WL 17586326, at *9 (S.D.N.Y. Dec. 12, 2022) (“[A]n inmate’s own violent tendencies are not the type of

‘substantial risk of serious harm’ protected by the Constitution.” (quoting Louis-Charles v. Courtwright, No. 11-CV-

147, 2014 WL 457951, at *6 (N.D.N.Y. Feb. 4, 2014) (collecting cases))). Even if the same attributes instead applied

to Creekmur, they would not be independently sufficient to show that Creekmur posed a substantial risk of serious

harm to Brown. See Dietrich, 2020 WL 5209816, at *3 (finding allegations that assailant was a dangerous, combative,

gang member known as a violent offender who instigated inmate fights were insufficient to allege a substantial risk

of serious harm); Smolen v. Brown, No. 18-CV-7621, 2020 WL 1233762, at *4 (S.D.N.Y. Mar. 13, 2020) (similar);

Thomas v. Demeo, No. 15-CV-9559, 2017 WL 3726759, at *8 (S.D.N.Y. Aug. 28, 2017) (similar).

8 The evidence most closely related to this point is that Creekmur, the perpetrator, complained about threats

from unidentified Bloods gang members and opted to enter administrative segregation on July 31, 2011. (See

Administrative Segregation Report, ECF No. 115-12).

16

A sufficient general risk of harm exists where “a substantial risk of inmate attacks was

longstanding, pervasive, [or] well-documented.” Farmer, 511 U.S. at 842. Thus, relying on a

general risk of harm requires a showing “of a history of prior inmate-on-inmate attacks similar to

the one suffered by the plaintiff and that the measures th[at] should have taken in response to such

prior attacks would have prevented the attack on the plaintiff.” Parris v. N.Y. State Dep’t Corr.

Servs., 947 F. Supp. 2d 354, 363 (S.D.N.Y. 2013). According to Plaintiff, a general risk of harm

existed because the Individual Defendants failed to perform a post-breakfast inmate count before

closing the cells, and the Individual Defendants otherwise failed to prevent Creekmur from

entering Brown’s cell.9 (See Opp, ECF No. 115-18 at 5-11.) Plaintiff’s reliance on those facts is

misplaced. Plaintiff cannot establish that a general substantial risk of harm existed at the relevant

time because she offers no evidence of a history of similar attacks. See Parris, 947 F. Supp. 2d at

363 (finding no general risk of harm given the lack of any “history of serious inmate-on-inmate

assaults in the six block yard . . . or that such prior assaults were similar enough to the attack

[plaintiff] suffered that remedial actions would have prevented that attack”); Dietrich, 2020 WL

5209816, at *3 (finding one prior attack on an unspecified date “falls far short of the longstanding,

pervasive, well-documented history of similar attacks necessary to state a failure-to-protect claim

based on a general risk of harm” (internal quotation marks omitted)).

9 The Individual Defendants acknowledge that they do not always verify that inmates are in their cells prior to

the post-breakfast closing of the cell doors. (See Lobosco Dep. Tr., ECF No. 114-8 at 53:8-54:23). Instead, the

Individual Defendants reportedly conduct patrols every thirty minutes. (See id. at 26:25-27:21; Wallace Dep. Tr.,

ECF No. 114-7 at 56:7-57:2.)

17

Even assuming Plaintiff could satisfy the objective prong, her failure to protect claim would

fail on the subjective prong. To establish the necessary subjective showing under the Fourteenth

Amendment, i.e. show deliberate indifference, Plaintiff must prove that a given Individual

Defendant “recklessly failed to act with reasonable care to mitigate the risk that the condition

posed to [Brown] even though the defendant-official knew, or should have known, that the

condition posed an excessive risk to health or safety.” Darnell, 849 F.3d at 35. Though called the

“subjective prong,” this determination “is defined objectively” and “can be violated when an

official does not have subjective awareness that the official’s acts (or omissions) have subjected

the pretrial detainee to a substantial risk of harm.” Id.

“As a general matter, surprise attacks do not suggest deliberate indifference by a

corrections officer.” Licari v. Toulon, No. 22-CV-00148, 2022 WL 493210, at *5 (E.D.N.Y. Feb.

17, 2022) (internal quotation marks omitted); see Rivera v. Royce, No. 19-CV-10425, 2021 WL

2413396, at *8 (S.D.N.Y. June 11, 2021) (“It is well-established that prison officials cannot be

deliberately indifferent to a surprise attack.”). Plaintiff seeks to avoid that principle by arguing

that the attack was not a surprise. To that end, Plaintiff asserts that (1) Plaintiff’s expert, Gary

Raney, concluded that the Individual Defendants failed to sufficiently monitor and separate

Creekmur and Brown, (2) the Inmate Interview Notes and the Adams Declaration show Creekmur

and Brown had prior verbal altercations, and (3) several minutes elapsed between Creekmur

commencing the attack and Lobosco arriving on scene. (Opp., ECF No. 115-18 at 13-17.)

None of those arguments undermine that the attack was a surprise. First, Raney’s expert

report is unsworn (see ECF No. 115-6) and it is undisputed that Raney did not later swear to the

contents of the report (see Defendants’ Reply Memorandum Of Law (“Reply Mem.”), ECF No.

18

judgment.”10 Fed. Trade Comm’n v. RCG Advances, LLC, ___ F. Supp. 3d___, No. 20-CV-4432,

2023 WL 6281138, at *12 n.8 (S.D.N.Y. Sept. 27, 2023); see Condoleo v. Guangzhou Jindo

Container Co., 427 F. Supp. 3d 316, 330 (E.D.N.Y. 2019) (“Courts in this Circuit have uniformly

held that unsworn expert reports do not satisfy the admissibility requirements of Fed. R. Civ. P.

56(e), and cannot be used [on] a motion for summary judgment without additional affidavit

support.”), report and recommendation adopted, 427 F.Supp.3d 316 (E.D.N.Y. 2019). Second, the

Inmate Interview Notes and relevant portion of the Adams Declaration are inadmissible hearsay

that cannot be considered.11 (See supra Part III.C.1.a). Third, whether several minutes elapsed

between the time the attack began and the time Lobosco arrived to it does not undermine that—as

Plaintiff acknowledges—Lobosco was unaware that Creekmur entered Brown’s cell until Lobosco

went there upon hearing inmates screaming. (Pl. 56.1, ECF No. 115-17 ¶ 19; Def. 56.1, ECF No.

116-6 ¶ 29; see also Lobosco Dep. Tr., ECF No. 114-8 at 70:2-3 (“[A]fter I heard [screaming] I

responded as fast as I can.”)). The argument that “intervention was delayed” in response to a

sudden inmate attack “does not tend to demonstrate that [corrections officers] knew of and

10 Considering the substance of the report would not move the needle. Even if it were true that the NCCC and

Lobosco’s purported failures to follow NCCC rules and generally accepted jail practices means they “could have done

things that would have interrupted Creekmur’s plans and potentially prevented the homicide” (Raney Expert Report,

ECF No. 115-6 at 13-15), that conclusion does not support that any Individual Defendant “knew, or should have

known” that Creekmur “posed an excessive risk to [Brown’s] health or safety.” Darnell, 849 F.3d at 35. Indeed, the

failure to man a security post and notice an inmate assault is nonactionable mere negligence. See Parris, 947 F. Supp.

2d at 364; Dietrich, 2020 WL 5209816, at *4; Fernandez v. New York City Dep’t of Correction, No. 08-CV-4294,

2010 WL 1222017, at *4 (S.D.N.Y. Mar. 29, 2010). Similarly, failing to follow jail rules “does not rise to the level

of a constitutional violation.” Charles v. Rockland Cnty. Off. of the Sheriff, No. 16-CV-166, 2019 WL 1299804, at

*4 (S.D.N.Y. Mar. 21, 2019); see House v. City of New York, No. 18-CV-6693, 2020 WL 6891830, at *17 (S.D.N.Y.

Nov. 24, 2020) (similar).

11 Even if their substance is considered, the Inmate Interview Notes and Adams Declaration do not show that

the Individual Defendants knew or should have known about any prior altercations between Brown and Creekmur, let

alone an incident that could show Creekmur posed a substantial risk of harm to Brown. (See Inmate Interview Notes,

ECF No. 115-5; Adams Decl., ECF No. 115-7.)

19

Stewart v. Schiro, No. 13-CV-3613, 2015 WL 1854198, at *8 (E.D.N.Y. Apr. 22, 2015); see Parris,

947 F. Supp. 2d at 364 (finding that responding to an attack despite failing to notice it “for several

minutes” does not constitute deliberate indifference).

Accordingly, Plaintiff identifies no evidence in the record that would allow a reasonable

jury to find that the Individual Defendants should have known Brown faced an impending attack

from Creekmur (or any other inmate). See House, 2020 WL 6891830, at *16 (dismissing failure

to protect claims for lack of evidence defendant should have known about the attack); Charles,

2019 WL 1299804, at *4 (same); Gordon, 2021 WL 5314604, at *10 (recommending dismissal

under these circumstances); see also Carrasco v. Annucci, No. 17-CV-9643, 2020 WL 5038561, at

*3 (S.D.N.Y. Aug. 26, 2020) (“Courts routinely deny deliberate indifference claims based upon

surprise attacks.” (internal quotation marks omitted)).

D. The Fourteenth Amendment Failure To Intervene Claims Are Deficient

Defendants assert that Plaintiff similarly put forth no evidence that could substantiate the

failure to intervene claim. (See Def. Mem., ECF No. 114-16 at 4-9.) The Court again agrees with

Defendants.

“Allowing an attack on an inmate to proceed without intervening is a constitutional

violation in certain circumstances.” Rosen v. City of New York, 667 F. Supp. 2d 355, 359

(S.D.N.Y. 2009); see Davidson v. Cannon, 474 U.S. 344, 348 (1986) (recognizing a constitutional

violation lies “where officials simply stood by and permitted the attack to proceed”). “[F]ailing to

intervene is a Fourteenth Amendment violation where the officer acted with ‘deliberate

indifference to a substantial risk of serious harm to an inmate.’” Rosen, 667 F. Supp. 2d at 359–

60 (quoting Farmer, 511 U.S. at 828). The standard applied above to the claims for deliberate

20

claims for deliberate indifference in failing to intervene in the attack once it commenced. See

Darnell, 849 F.3d at 33 n.9 (“[D]eliberate indifference means the same thing for each type of claim

under the Fourteenth Amendment.”). Once it commenced, Creekmur’s attack that involved

ultimately fatal striking and choking posed a substantial risk of serious harm satisfying the

objective prong of the failure to intervene analysis. See Blake v. Sexton, No. 12-CV-7245, 2016

WL 1241525, at *4 (S.D.N.Y. Mar. 24, 2016) (finding inmate attack involving punches to the skull

satisfied the objective prong of a failure to intervene claim).

Nonetheless, the Court concludes Plaintiff has not put forth evidence that could satisfy the

second element, which requires showing that the Individual Defendants were at least deliberately

indifferent to the risk posed by that attack. See Darnell, 849 F.3d at 29. “In the context of a failure

to intervene claim, an officer displays deliberate indifference when he has adequate time to assess

a serious threat against an inmate and a fair opportunity to protect the inmate without risk to

himself, yet fails to intervene.” Leckie, 2021 WL 84234, at *5 (quoting Rosen, 667 F. Supp. 2d at

360). This requires Plaintiff to show that the Individual Defendants “observed or had reason to

know” about the ongoing attack and “had an extended opportunity to stop the attack but failed to

take any action to do so.” Fredricks v. Parrilla, No. 20-CV-5738, 2022 WL 3053654, at *11

(S.D.N.Y. Aug. 3, 2022) (internal quotation marks omitted); Stewart, 2015 WL 1854198, at *8

(internal quotation marks omitted). Plaintiff’s failure to intervene claim fails because “[n]othing

in the record indicates that the [Individual] Defendants failed to intervene in the incident, let alone

21

failure to intervene claim where, as here, the undisputed facts showed that correction officers

responded to an inmate attack by “attempting to restrain [the assailant], requesting back up

assistance, and separating [the involved inmates]”); see Fredricks, 2022 WL 3053654, at *11

(similar); Leckie, 2021 WL 84234, at *5 (similar).

E. Municipal Liability Is Unavailable

Where, as here, a plaintiff brings a Section 1983 claim against both a municipality and the

municipal actors alleged to have committed the underlying constitutional tort, the plaintiff’s failure

to show that the municipal actors committed the underlying constitutional tort “preclude[s] a

judgment against the municipality.” Askins v. Doe, 727 F.3d 248, 253 (2d Cir. 2013). As explained

above, a reasonable jury could not find for Plaintiff on her claims that the Individual Defendants

violated Brown’s Fourteenth Amendment rights. See supra Parts III.C, III.D. Accordingly,

Plaintiff’s claim for municipal liability must be dismissed. See Goe v. Zucker, 43 F.4th 19, 34 (2d

Cir. 2022) (affirming dismissal of Monell claim for lack of an underlying constitutional violation

by the individual defendants); Anilao v. Spota, 27 F.4th 855, 874 (2d Cir. 2022) (same); Matican

v. City of N.Y., 524 F.3d 151, 159 (2d Cir. 2008) (same).

12 Plaintiff insists that that the time reported in the Adams Declaration between Creekmur commencing the

attack and Lobosco arriving on scene reflects deliberate indifference in failing to intervene in the assault. (See Opp.,

ECF No. 115-18 at 17-18). Not so. The Adams Declaration states, consistent with Lobosco’s testimony, that

corrections officers responded to “yells and screams” from Creekmur and various “other detainees” arising from the

assault. (Adams Decl., ECF No. 115-7 ¶¶ 16-17; see Lobosco Dep. Tr., ECF No. 114-8 at 64:21-70:9.) The Adams

Declaration further explained that the corrections officer response was delayed because, in that chaos, “[t]he officers

appeared to have no clue where the screaming was coming from.” (Adams Decl., ECF No. 115-7 ¶ 17.) The

undisputed effort to respond to the screams caused by the assault (see Pl. 56.1, ECF No. 115-17 ¶ 19), even if delayed

by the need to locate the sources and causes of those screams, followed by the undisputed efforts to stop Creekmur’s

attack are inconsistent with deliberate indifference. See Parris, 947 F. Supp. 2d at 364 (finding the failure to man a

security post and notice an inmate assault for “several minutes” before responding to it was nonactionable “mere

negligence”).

22

In addition to their merits-based arguments, Defendants contend that Plaintiff’s claims are

barred by qualified immunity. (See Def. Mem. at 16-20.) Because Defendants showed that they

are entitled to summary judgment, the Court need not address the issue of qualified immunity. See,

e.g., Kee v. City of New York, 12 F.4th 150, 161 n.12 (2d Cir. 2021) (declining to consider qualified

immunity because no constitutional violation occurred).

G. Plaintiff Erroneously Requests That the Court Exercise Jurisdiction Over State Law

Claims

Plaintiff asked the Court to “exercise pendent jurisdiction over the Plaintiff’s state law

claims.” (Opp., ECF No. 115-18 at 25). But the only state law claims asserted in the SAC were

the negligence and medical malpractice claims against defendants who have since been dismissed.

(See SAC, ECF No. 42 ¶¶ 104-118; Order Dismissing Parties, ECF No. 80.) Thereafter, Plaintiff’s

only remaining claims were the Section 1983 claims against the instant Defendants. (See SAC,

ECF No. 42 ¶¶ 58-93; see also Reply Mem., ECF No. 116-7 at 1 (“Plaintiff does not assert any

state law claims . . . .”).) Thus, there are no state law claims over which this Court may exercise

jurisdiction.13

13 The Court would decline to exercise jurisdiction over additional state law claims even if the SAC asserted

them. A district court “may decline to exercise supplemental jurisdiction over” a state-law claim if, as here, it “has

dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Thus, “after properly granting

summary judgment on [federal] claims, the District Court ha[s] discretion not to exercise supplemental jurisdiction

over the state law claims.” Boyd v. J.E. Robert Co., 765 F.3d 123, 126 (2d Cir. 2014); see Souza v. Exotic Island

Enters., 68 F.4th 99, 123 (2d Cir. 2023) (reaffirming this principle). In considering that discretion, district courts

balance “values of judicial economy, convenience, fairness, and comity.” Klein & Co. Futures, Inc. v. Bd. of Trade

of the City of N.Y., 464 F.3d 255, 262 (2d Cir. 2006). Those factors would weigh against exercising supplemental

jurisdiction over additional state law claims here. See, e.g., Boyd, 765 F.3d at 126 (affirming district court’s refusal

to exercise supplemental jurisdiction over state law claims after granting summary judgment dismissing all federal

claims); Hu v. City of New York, No. 22-183, 2023 WL 3563039, at *3 (2d Cir. May 19, 2023) (same).

23

For the reasons stated above, Defendants’ motion for summary judgment is GRANTED

and this action is DISMISSED. The Clerk of the Court is respectfully directed close this case.

SO ORDERED.

Dated: December 21, 2023

Central Islip, New York

/s/ JMA

JOAN M. AZRACK

UNITED STATES DISTRICT JUDGE

24