Balentine v. Red

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

MICHAEL ANDERSON BALENTINE,

Plaintiff,

vs.

9:22-CV-285

(MAD/ML)

CALEIGH SHURGOT and ASHLEE GREEN,

Defendants.

____________________________________________

APPEARANCES: OF COUNSEL:

HODGSON, RUSS LAW FIRM CHRISTIAN SOLLER, ESQ.

677 Broadway – Suite 401 SERA YOON, ESQ.

Albany, New York 12207

Attorneys for Plaintiff

OFFICE OF THE NEW YORK NICHOLAS W. DORANDO, AAG

STATE ATTORNEY GENERAL

The Capitol

Albany, New York 12224

Attorney for Defendants

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff commenced this action pursuant to 42 U.S.C. § 1983, alleging that on December

27, 2021, Defendant Caleigh Shurgot assaulted him, and Defendant Ashlee Green failed to

intervene in violation of the Eighth Amendment. See Dkt. No. 10 at 3-5.

Trial is scheduled to commence on October 16, 2023. In advance of trial, Plaintiff and

Defendants have moved in limine to admit and/or preclude certain evidence. See Dkt. Nos. 36,

46. Plaintiff seeks to preclude evidence of the following: (1) Plaintiff's criminal history;

(2) Plaintiff's disciplinary history; and (3) prior lawsuits brought by Plaintiff. See Dkt. No. 36 at

2-6. Defendants seek the following relief: (1) to admit evidence of Plaintiff's prior criminal acts;

(2) to permit Defendants to cross examine Plaintiff about the essential facts of his criminal

convictions; (3) to preclude evidence of a conspiracy; (4) to preclude evidence of Defendants'

disciplinary histories, personnel files, and prior lawsuits; (5) to preclude evidence of other

grievances filed against Defendants by non-party incarcerated individuals; (6) to preclude

reference to a specific dollar amount of damages; (7) to preclude reference to indemnification;

and (8) to preclude evidence related to dismissed claims. See Dkt. No. 46 at 3-15.1 In their pre-

trial brief, Defendants have also moved to dismiss Plaintiff's state law claims pursuant to New

York Correction Law section 24. See Dkt. No. 39 at 7-8. Plaintiff's and Defendants' respond in

opposition to each other's motions. See Dkt. Nos. 53, 54, 55.

As set forth below, Plaintiff's and Defendants' motions are granted in part and denied in

part.

II. DISCUSSION

A. Motions in Limine

A motion in limine enables the Court to make an advance ruling on the admissibility of

certain anticipated trial evidence. See Luce v. United States, 469 U.S. 38, 40 n.2 (1984); see also

Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996). "A court should exclude evidence on a

motion in limine only when the evidence is clearly inadmissible on all potential grounds."

1 In Defendants' preliminary statement, they contend that Plaintiff should be precluded from

calling any non-party witnesses at trial. See Dkt. No. 46 at 2. However, Defendants did not

include any argument pertaining to this issue in the body of their motion. See id. at 3-15. The

Court is not required to consider arguments that are not briefed, and Defendants' motion is denied

on this ground.

Coleman v. Durkin, 585 F. Supp. 3d 208, 212 (N.D.N.Y. 2022). Generally, all "[r]elevant

evidence is admissible" unless otherwise provided by an Act of Congress, the United States

Constitution, or the Federal Rules of Evidence. FED. R. EVID. 402. For instance, Rule 403 grants

"the trial court broad discretion to exclude even relevant evidence if its probative value is

substantially outweighed by the danger of confusion of the issues or if it would be needlessly

cumulative." United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1193 (2d Cir. 1989)

(citing FED. R. EVID. 403; United States v. Carter, 801 F.2d 78, 83 (2d Cir. 1986); United States

Martinez, 775 F.2d 31, 37 (2d Cir. 1985)). Courts considering motions in limine may reserve

decision until trial so that the motion is placed in the appropriate factual context. See Nat'l Union

Fire Ins. Co. v. L.E. Myers Co. Group, 937 F. Supp. 276, 287 (S.D.N.Y. 1996). The Court is also

"free, in the exercise of sound judicial discretion, to alter a previous in limine ruling" at trial as

"the case unfolds, particularly if the actual testimony differs from what was contained in the

[movant's] proffer." Luce, 469 U.S. at 41-42.

1. Plaintiff's Prior Convictions

Plaintiff seeks to preclude evidence of his (1) 2019 conviction for promoting the sexual

performance of a child; (2) 2004 conviction for promoting or possessing sexual performance by a

child; and (3) prior convictions for petite larceny and criminal possession of a forged instrument.

See Dkt. No. 36-1 at 2-5. Defendants seek to admit only Plaintiff's 2019 conviction. See Dkt. No.

46 at 3-8; Dkt. No. 54 at 1-2.

Federal Rule of Evidence 609 vests broad discretion in the district court to admit or

exclude evidence of prior convictions. See United States v. Pedroza, 750 F.2d 187, 202 (2d Cir.

1984). Rule 609 provides that

(a) In General. The following rules apply to attacking a witness's

character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by

death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or

in a criminal case in which the witness is not a defendant; and

(B) must be admitted in a criminal case in which the witness

is a defendant, if the probative value of the evidence

outweighs its prejudicial effect to that defendant; and

(2) for any crime regardless of the punishment, the evidence must be

admitted if the court can readily determine that establishing the

elements of the crime required proving--or the witness's admitting--

a dishonest act or false statement.

(b) Limit on Using the Evidence After 10 Years. This

subdivision (b) applies if more than 10 years have passed

since the witness's conviction or release from confinement for

it, whichever is later. Evidence of the conviction is admissible

only if:

(1) its probative value, supported by specific facts and

circumstances, substantially outweighs its prejudicial

effect; and

(2) the proponent gives an adverse party reasonable

written notice of the intent to use it so that the party

has a fair opportunity to contest its use.

FED. R. EVID. 609.

Under Rule 609(b), criminal convictions more than ten years old are not admissible

"unless the court determines that, in the interest of justice, the probative value of the conviction

substantially outweighs its prejudicial effect." Walker v. Schult, 365 F. Supp. 3d 266, 281-82

(N.D.N.Y. 2019) (citation omitted). "[W]hen convictions more than ten years old are sought to be

introduced into evidence pursuant to Rule 609(b) the district judge should make an on-the-record

determination supported by specific facts and circumstances that the probative value of the

evidence substantially outweighs its prejudicial effect." United States v. Mahler, 579 F.2d 730,

736 (2d Cir. 1978). "'[C]onvictions over 10 years old [should] be admitted very rarely and only in

exceptional circumstances,' as 'convictions over ten years old generally do not have much

probative value.'" United States v. Brown, 606 F. Supp. 2d 306, 312 (E.D.N.Y. 2009) (second

alteration in original) (quoting FED. R. EVID. 609(b), Advisory Committee's Note).

Plaintiff alleges that Defendant Shurgot called Plaintiff a "fagot rapo" after "he answered

her truthfully" as to "what he was in prison for." Dkt. No. 10 at 3. Plaintiff contends that his

answer motivated Defendant Shurgot's use of force. See id. at 3-5. Plaintiff's 2004 conviction for

promoting or possessing sexual performance by a child is plausibly relevant to his claims as he

does not specify precisely what he said to Defendant Shurgot. However, Defendants do not seek

to admit Plaintiff's 2004 conviction, and because the conviction is almost twenty years old, the

probative value does not substantially outweigh its prejudicial effect. See Dkt. No. 46 at 3-8. As

such, Plaintiff's motion is granted in this regard.

Second, Rule 609(a)

requires district courts to admit the name of a conviction, its date,

and the sentence imposed unless the district court determines that

the probative value of that evidence "is substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of

time, or needless presentation of cumulative evidence."

United States v. Estrada, 430 F.3d 606, 621 (2d Cir. 2005) (citation omitted). In "balancing

probative value against prejudicial effect under [Rule 609], courts examine the following factors:

(1) the impeachment value of the prior crime, (2) the remoteness of the prior conviction, (3) the

similarity between the past crime and the conduct at issue, and (4) the importance of the

credibility of the witness." Daniels v. Loizzo, 986 F. Supp. 245, 250 (S.D.N.Y. 1997) (citing,

inter alia, United States. v. Hayes, 553 F.2d 824, 828 (2d Cir. 1977)). "Although all of these

factors are relevant, '[p]rime among them is [the first factor, i.e.,] whether the crime, by its nature,

is probative of a lack of veracity.'" Brown, 606 F. Supp. 2d at 312 (alterations in original)

(quoting United States v. Ortiz, 553 F.2d 782, 784 (2d Cir. 1977)).

Defendants do not seek to admit Plaintiff's larceny and criminal possession of a forged

document convictions. See Dkt. No. 46 at 3-8. "The crime of larceny is a crime of theft which

bears upon credibility[.]" Diggs v. Guynup, 621 F. Supp. 3d 315, 321 (N.D.N.Y. 2022) (citation

omitted). Similarly, as a conviction for forged documents concerns an act of deceit, it bears on

Plaintiff's credibility. See Estrada, 430 F.3d at 617. However, neither party provides the dates of

those convictions. See Dkt. Nos. 36, 46. As Defendants do not seek admission of the convictions

and the Court is not aware of the dates of conviction, Plaintiff's motion is denied.

Defendants seek to admit Plaintiff's 2019 conviction for promoting the sexual performance

of a child. See Dkt. No. 46 at 3-8. As to the first balancing factor, although Rule 609(a)(1)

presumes that all felonies are at least somewhat probative of a witness' propensity to testify

truthfully, all Rule 609(a)(1) felonies are not equally probative of credibility. See Estrada, 430

F.3d at 617-18. "[C]rimes of violence" rank low "on the scale of probative worth on

credibility[.]" Id. at 618; see also Thomas v. Leifeld, No. 9:13-CV-321, 2018 WL 3387690, *2

(N.D.N.Y. July 12, 2018) ("[The p]laintiff's convictions for Rape in the First Degree, Attempted

Rape in the First Degree, Sexual Abuse in the First Degree, Sexual Abuse in the Second Degree,

and Assault in the Second Degree are not particularly probative as to honesty and veracity.").

"[C]rimes that involve evasions of responsibility or abuse of trust, a category that includes . . .

even sexual abuse of children in [the witness's] care," tend to be "high on the scale" of "veracity-

related crimes[.]" Id. Here, Plaintiff's 2019 conviction falls more on the side of an evasion of

trust or responsibility-related crime than a violent or assaultive crime. Thus, the conviction is

probative of his credibility. Moreover, Plaintiff alleges that this conviction was part of Defendant

Shurgot's motivation for assaulting him. See Dkt. No. 10 at 3-4. As such, this evidence is directly

relevant to Plaintiff's claims.

As to the second factor, Plaintiff was convicted in 2019. See Dkt. No. 46-1 at 5. As the

conviction is recent, this factor weighs in favor of admission.

"The third criterion, similarity of the crimes, deals with the similarity of the charged

crimes, or the incident at issue in the pending case, to the conviction. The less similar the pending

case to the prior conviction, the less prejudicial its admission is." Somerville v. Saunders, No.

9:11-CV-556, 2014 WL 272415, *9 (N.D.N.Y. Jan. 24, 2014) (citation and quotation marks

omitted). "On the other hand, a conviction for a crime that bears a close resemblance to actions

alleged in the current case might cause 'unfair prejudice to the party against whom they are

offered by suggesting that the party has a propensity to commit such acts.'" Id. (quoting Lewis v.

Velez, 149 F.R.D. 474, 483 (S.D.N.Y. 1993)). Here, there is no similarity between Plaintiff's

conviction and the conduct at issue in this trial. As such, this factor weighs in favor of admission.

Finally, it is undisputed that Plaintiff's credibility is a central issue in this case. "[W]here

the credibility of a given witness is particularly important because there is little other

documentary or supporting evidence and 'success at trial probably hinges entirely on [the

witness's] credibility with the jury,' the fourth factor weighs in favor of admission of the prior

conviction." Somerville, 2014 WL 272415, at *9 (quoting Jean-Laurent v. Hennessy, 840 F.

Supp. 2d 529, 544 (E.D.N.Y. 2011)). Therefore, this factor weighs in favor of admitting the 2019

conviction for impeachment purposes pursuant to Rule 609.

In addition to the factors discussed above, the Court must also consider the standard Rule

403 factors: "unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting

time, or needlessly presenting cumulative evidence." FED. R. EVID. 403. Here, these factors also

weigh in favor of permitting Defendants to question Plaintiff regarding the statutory name and

date of his 2019 conviction. Limiting the evidence to the statutory name and date of conviction

reduces any risk of unfair prejudice.

Based on the foregoing considerations, the Court finds that the probative value of the

name and date of Plaintiff's 2019 felony conviction outweigh the prejudicial effect of this

evidence. See Young v. Calhoun, No. 85-CV-7584, 1995 WL 169020, *4 (S.D.N.Y. Apr. 10,

1995) ("As plaintiff's complaint concerns events that occurred during his incarceration [ ], the jury

will be informed that plaintiff has been convicted of a crime by the very nature of the case").

However, the probative value of the facts of the underlying conviction is substantially outweighed

by the danger of unfair prejudice. See Brown, 606 F. Supp. 2d at 312 ("In the Second Circuit, it is

within the discretion of the district courts to further limit the evidence of the prior conviction to

exclude the nature or statutory name of the offense"). Of course, if Plaintiff opens the door on

this issue by attempting to bolster his own credibility or raising the issue of his underlying

conviction, Defendants will be permitted to cross-examine him on the relevant details of the

conviction. Based on the foregoing, this aspect of Plaintiff's and Defendants' motions in limine is

granted in part and denied in part.

2. Plaintiff's Disciplinary History; and Defendants' Disciplinary Histories, Personnel

Files, and Grievances

Plaintiff and Defendants seek to preclude evidence of their respective disciplinary

histories. See Dkt. No. 36-1 at 5; Dkt. No. 46 at 10-11. Defendants also seek to preclude

evidence of their personnel files and grievances filed against them by non-party incarcerated

individuals. See Dkt. No. 46 at 10-11.

Rule 404(b) provides that "[e]vidence of any other crime, wrong, or act is not admissible

to prove a person's character in order to show that on a particular occasion the person acted in

accordance with the character." FED. R. EVID. 404(b)(1). The Rule "prohibits the introduction of

character evidence to show that an individual has a certain predisposition, and acted consistently

with such predisposition during the event in question." Starmel v. Tompkin, 634 F. Supp. 3d 41,

46 (N.D.N.Y. 2022) (citation omitted). However, such evidence may be admissible if offered for

a different purpose "such as proving motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident," subject to a Rule 403 analysis. FED. R. EVID.

404(b)(2). Thus, "[c]ourts may admit evidence of prior bad acts if the evidence is relevant to an

issue at trial other than the [person's] character, and if the probative value of the evidence is not

substantially outweighed by the risk of unfair prejudice." United States v. Barret, 677 Fed. Appx.

21, 23 (2d Cir. 2017) (citation and quotation marks omitted).

"In particular, disciplinary records of a state ward plaintiff, e.g., a prison inmate or

psychiatric patient, are almost always inadmissible." Starmel, 634 F. Supp. 3d at 46 (citation

omitted). "Complaints against officers are [also] not probative of a . . . witness's truthfulness or

untruthfulness unless the underlying conduct involves dishonesty." Bryant v. Serebrenik, No. 15-

CV-3762, 2017 WL 713897, *2 (E.D.N.Y. Feb. 23, 2017) (citing United States v. Horsford, 422

Fed. Appx. 29, 30 (2d Cir. 2011)).

In response to Plaintiff's motion in limine, Defendants assert that they do not intend to

introduce evidence of Plaintiff's disciplinary history unless Plaintiff opens the door to discussions

of his behavior. See Dkt. No. 54 at 3. Plaintiff does not provide the Court with any disciplinary

records, personnel files, or grievances that he seeks to introduce into evidence. See Dkt. No. 55.

Accordingly, this aspect of the parties' motions is denied.

3. Prior Lawsuits

Both parties move to preclude evidence of prior lawsuits. See Dkt. No. 36-1 at 5; Dkt. No.

46 at 11. "It is well settled that it is improper for a court to admit evidence of prior lawsuits for

the purpose of demonstrating that a plaintiff is a 'chronic litigant.'" Hickey v. Myers, No. 09-CV-

01307, 2013 WL 2418252, *4 (N.D.N.Y. June 3, 2013) (quoting Outley v. City of New York, 837

F.2d 587, 591-93 (2d Cir. 1998)). "Prior lawsuits have been found admissible at trial, however, if

they are offered for purposes other than to prove a party's litigiousness." Id. (citations omitted).

Neither party states that it intends to offer evidence concerning other lawsuits. See Dkt.

No. 54 at 3; Dkt. No. 55. As such, the Court denies this aspect of both motions in limine.

4. Conspiracy

Defendants contend that, because Plaintiff has not advanced a conspiracy claim, he should

be precluded from eliciting testimony or argument that Defendants, their peers, or employer

conspired to harm Plaintiff. See Dkt. No. 46 at 8-10. The Court agrees.

Any evidence of a conspiracy is irrelevant, as it has no tendency to make a fact "more or

less probable than it would be without the evidence" and is of "no consequence in determining the

action." FED. R. EVID. 401. Plaintiff has implicated a finite number of Defendants with specific

motivations, and he does not have a conspiracy claim before the Court. Moreover, even if such

evidence was relevant, it is nonetheless subject to preclusion because its probative value is

"substantially outweighed" due to "unfair prejudice." FED. R. EVID. 403. Any discussion of an

alleged conspiracy would confuse the issues and mislead the jury. Accordingly, the Court grants

this aspect of Defendants' motion in limine.

5. Damages

Defendants seek to preclude Plaintiff's counsel from presenting a specific dollar amount of

damages to the jury. See Dkt. No. 46 at 13. Defendants argue that permitting a party to request a

specific dollar amount is generally disfavored. See id. In response, Plaintiff argues that he should

be permitted to request a specific dollar amount because there is no per se prohibition on doing

so. See Dkt. No. 55. "While specifying target amounts for the jury to award is disfavored, [t]he

determination of whether to allow a plaintiff to request a specific damage amount from the jury is

within the court's discretion." Brown v. Cornell, No. 9:17-CV-01036, 2021 WL 2711511, *9

(N.D.N.Y. July 1, 2021) (citation and quotation marks omitted) (alteration in original).

The Court "is not inclined at this time to preclude Plaintiff from offering a specific dollar

amount regarding [] damages to the jury at closing." Brown, 2021 WL 2711511, at *9. "[T]he

Court will provide the jurors with a limiting instruction stating that the amount provided by

Plaintiff is not evidence but only a suggestion as to the amount, if any, to be awarded." Id. (citing

Sokolow v. Palestine Liberation Org., No. 04-CV-397, 2015 WL 13675738, *3 (S.D.N.Y. Aug.

24, 2015). Accordingly, the Court denies this aspect of Defendants' motion in limine.

6. Indemnification

Defendants argue that Plaintiff should be prohibited from discussing potential

indemnification of Defendants should the jury find one or both Defendants liable. See Dkt. No.

46 at 14. Defendants argue it is irrelevant and prejudicial. The Court agrees. Reference to

potential indemnification would be unduly prejudicial and is irrelevant. All references to

indemnification or potential indemnification will be precluded. See Nunez v. Diedrick, No. 14-

CV-4182, 2017 WL 4350572, *2 (S.D.N.Y. June 12, 2017) (holding that "the Court, like several

other district judges in this Circuit, finds that references to . . . potential indemnification

obligations would serve no probative value and potentially cause unwarranted prejudice"); see

also Coleman, 585 F. Supp. 3d at 217 ("The Court agrees with [d]efendants that, during the

upcoming trial, indemnification would not be relevant to any issue before the jury and would run

a significant risk of unfairly prejudicing [d]efendants").2

7. Dismissed Claims

Defendants seek preclusion of evidence "relating to Plaintiff's various claims that the

Court has already dismissed on IFP review and on Defendants' prior motions." Dkt. No. 46 at 14

(citing Dkt. Nos. 6, 11).

Previously dismissed claims are not relevant to the issues which will be presented at trial.

See Diggs, 621 F. Supp. 3d at 325-26 (citation omitted) ("[T]he Court agrees with [d]efendant that

evidence relating solely to previously dismissed claims is irrelevant to the issues remaining for

trial and is therefore inadmissible"). Plaintiff does not respond to this aspect of Defendants'

motion, but as dismissed claims are not relevant to the remaining issues in the case, the Court

grants this part of Defendants' motion.

8. State Law Claims

In their pre-trial brief, Defendants argue that Plaintiff's state law assault, battery, and

intentional infliction of emotional distress ("IIED") claims must be dismissed pursuant to New

York Correction Law section 24 because Defendants were acting within the scope of their

employment at all relevant times. See Dkt. No. 39 at 7-8. In response, Plaintiff notes that

2 Should the jury find that Plaintiff is entitled to an award of punitive damages, Plaintiff may be

permitted to introduce evidence relating to an indemnification agreement. See Mathie v. Fries,

121 F.3d 808, 816 (2d Cir. 1997) ("Although we do not decide the question of whether a fact-

finder can rely upon the existence of an indemnity agreement in order to increase an award of

punitive damages, we rule that a fact-finder can properly consider the existence of such an

agreement as obviating the need to determine whether a defendant's limited financial resources

justifies some reduction in the amount that would otherwise be awarded.").

Defendants failed to raise this defense in their answer or a pre-trial dispositive motion. See Dkt.

No. 53 at 4. Plaintiff then argues that section 24 is inapplicable to Plaintiff's state law claims

because Defendants were acting for purely personal reasons which were outside the scope of their

employment. See id. at 4-5.

New York Correction Law section 24 states,

No civil action shall be brought in any court of the state, except by

the attorney general on behalf of the state, against any officer or

employee of the department, which for purposes of this section shall

include members of the state board of parole, in his or her personal

capacity, for damages arising out of any act done or the failure to

perform any act within the scope of the employment and in the

discharge of the duties by such officer or employee.

N.Y. Correct. Law § 24(1). "The statute 'provides DOCCS employees immunity from lawsuits

based on acts or omissions within the course of their employment. Such actions must be brought

in the New York Court of Claims as a claim against the state.'" Balentine v. Anzalone, No. 9:21-

CV-1383, 2023 WL 4905093, *3 (N.D.N.Y. July 12, 2023) (quoting Purcelle v. Thomas, 9:18-

CV-77, 2020 WL 1516421, *15 (N.D.N.Y. Mar. 6, 2020)). "[A]n employee's actions are deemed

to be within the scope of their employment when 'the act was done while the servant was doing

his master's work, no matter how irregularly, or with what disregard of instructions.'" Francis v.

Fiacco, No. 9:15-CV-00901, 2016 WL 3448617, *4 (N.D.N.Y. June 20, 2016) (quoting Ierardi v.

Sisco, 119 F.3d 183, 187 (2d Cir. 1997)).

For purposes of New York Correction Law [section] 24, the courts

have looked to the following factors to determine whether actions

fall within the actor's scope of employment:

the connection between the time, place and occasion for the

act; the history of the relationship between employer and

employee as spelled out in actual practice; whether the act is

one commonly done by any employee; the extent of

departure from normal methods of performance; and

whether the specific act was one that the employer could

reasonably have anticipated.

Id. (quoting Ierardi, 119 F.3d at 187). "Employees . . . are not found to be acting within their

employment scope when their conduct, while in the course of employment, is for purely personal

reasons unrelated to the employer's interests and a substantial departure from the normal methods

of performing [their] duties." Balentine, 2023 WL 4905093, at *3 (citations and quotation marks

omitted).

Here, Plaintiff alleges that Defendant Shurgot called him a "faggot rapo," kicked him, and

slapped him while she was conducting a pat frisk. Dkt. No. 10 at 3-4. The majority of cases to

consider the issue have concluded that assault, battery, and IIED claims cannot proceed under

section 24 where the allegations relate to a defendant's conduct that occurred while he or she was

on duty as a corrections officer, interacting with an incarcerated individual. See, e.g., Solano v.

New York, No. 9:20-CV-01378, 2021 WL 4134793, *9-10 (N.D.N.Y. Sept. 10, 2021); Flint v.

Jun, 541 F. Supp. 3d 284, 288 (W.D.N.Y. 2021); Purcelle v. Thomas, No. 9:18-CV-77, 2020 WL

1516421, *15 (N.D.N.Y. Mar. 6, 2020); Mann v. Martingano, No. 9:19-CV-478, 2020 WL

872441, *6 (N.D.N.Y. Jan. 30, 2020); James v. Doty, No. 9:17-CV-1145, 2019 WL 1474309, *7

(N.D.N.Y. Jan. 4, 2019); Robinson v. Tillotson, No. 16-CV-5420, 2018 WL 4682226, *8

(S.D.N.Y. Sept. 27, 2018); Nix v. Lester, No. 9:16-CV-00828, 2017 WL 3610576, *12 (N.D.N.Y.

Aug. 4, 2017); see also Balentine, 2023 WL 4905093, at *4 (citations omitted) ("Immunity under

N.Y. Correction Law section 24 has been applied numerous times in the context of an IIED claim.

However, other '[c]ourts that have considered the issue have held that personal harassment

unrelated to an employee's assigned duties does not entitle a corrections department employee to

Section 24 immunity'").

The few cases which have allowed state law claims to proceed against corrections officers

relate to conduct beyond the use of a derogatory slur and/or the use of force during a routine

prison procedure. For example, Ierardi concerned a DOCCS employee who was sexually

harassed and touched by a DOCCS corrections officer. See Ierardi, 119 F.3d at 185. The Second

Circuit concluded that the corrections officer was not acting within the scope of his employment

because the "purported sexual harassment . . . was not undertaken in the discharge of his duties.

He was not 'doing [his] employer's work.'" Id. at 188 (quoting Gore v. Kuhlman, 217 A.D.2d 890,

890 (3d Dep't 1995)).

In Ozzborn v. New York, the plaintiff was "singled out [] for a 'random' pat frisk[,]" the

defendant planted a weapon on the plaintiff, and the defendant placed the plaintiff in solitary

confinement. Ozzborn v. New York, No. 9:17-CV-1039, 2018 WL 3104448, *1 (N.D.N.Y. June

22, 2018). The Court concluded that the state law assault, battery, and false imprisonment claims

were not barred under section 24 because "planting a weapon on an inmate is not an act

commonly performed by a prison guard" and "such conduct is clearly a radical departure from a

prison guard's 'normal methods of performance.'" Id. at *5 (citation omitted). Additionally, the

Court noted that "it is not reasonably foreseeable that a guard, whose duties include keeping

contraband out of the hands of inmates, would smuggle a weapon into the prison for the purpose

of planting it on an inmate." Id.

Here, in the context of a corrections officer and an incarcerated individual in a prison, it is

reasonably foreseeable for a corrections officer to conduct a pat frisk of an incarcerated individual

before allowing that individual to enter a new cell block. This is an act commonly performed. It

is also reasonably foreseeable that a corrections officer would inquire about the crime which

resulted in the incarcerated individual's imprisonment and to order them to stand "on the wall" to

conduct a pat frisk. Dkt. No. 10 at 4. Although an unprovoked assault is not "is not the ordinary

conduct of a DOCCS employee[,]" Tranchina, 2018 WL 3037377, at *3, because Defendant

Shurgot's alleged conduct occurred within the scope of her typical duties as a DOCCS' employee,

the Court concludes that the claims against her are barred under section 24. See Balentine, 2023

WL 4905093, at *6 (collecting cases) ("Many of the cases which have held that section 24 bars a

plaintiff's IIED claim relate to uses of physical force by correctional officers during an allegedly

provoked attack and/or concern the medical care that the plaintiff received"); see also Robinson,

2018 WL 4682226, at *1, *8 (concluding that the plaintiff's state law claims were barred under

section 24 where they related to an alleged assault and battery during a pat frisk upon admission

into the suicide watch program inside a prison). Thus, Plaintiff's state law claims against

Defendant Shurgot are dismissed.

As to Defendant Green, in his pre-trial brief, Plaintiff does not argue that Defendant Green

was acting outside the scope of her employment. See Dkt. No. 53 at 4-5. Plaintiff's argument

concerning section 24 relates only to Defendant Shurgot. See id. at 5. Regardless, it is

undisputed that Defendant Green was working as a DOCCS employee at the time she was

observing Defendant Shurgot conduct the pat frisk. The act of observing another correction

officer conduct a pat frisk is one commonly done by a DOCCS employee and is one that could

reasonably have been anticipated. Plaintiff has not alleged that Defendant Green engaged in any

conduct that constitutes a substantial departure from normal employment practices. Plaintiff does

allege that Defendant Green said, "I don't understand why they keep sending these fu**ing guys

here." Dkt. No. 10 at 4. This could indicate that she failed to intervene for personal or harassing

reasons. However, because Plaintiff has not alleged that Defendant Green engaged in conduct

that is a substantial departure from normal methods of performance, the Court finds that section

24 bars any state law claims against Defendant Green. As such, Plaintiff's state law claims

against Defendant Green are dismissed.

IH. CONCLUSION

After carefully reviewing the entire record in this matter, Plaintiff's submissions,

Defendants’ submissions, and the applicable law, and for the reasons set forth above, the Court

hereby

ORDERS that Plaintiff's motion in limine (Dkt. No. 36) is GRANTED in part and

DENIED in part; and the Court further

ORDERS that Defendants’ motion in limine (Dkt. No. 46) is GRANTED in part and

DENIED in part; and the Court further

ORDERS that Plaintiff's state law claims are dismissed;* and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision

and Order on the parties in accordance with the Local Rules.

IT ISSO ORDERED.

Dated: October 11, 2023 J) i D 5 p

Albany, New York /) py 7 4c a Ceeg :

Mae A. D’ Agostino”

U.S. District Judge

> Dismissal of Plaintiff's state law claims is without prejudice to him filing the claims in the

appropriate state court. The Court makes no determination about Plaintiff's ability to successfully

bring those claims.

17