# Liverpool v. Davis

> District Court, S.D. New York · February 26, 2020

URL: https://www.frixlaw.com/law-library/cases/10321117

## Case

- **Court:** District Court, S.D. New York
- **Decided:** February 26, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10321117

## How later opinions describe it (automated extraction)

- holding that the test for deliberate indifference is subjective in the Eighth Amendment Context and objective in the case of suits brought by pretrial detainees under the Fourteenth Amendment
- declining to consider new claims raised in a pro se plaintiff’s opposition papers

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ANTON F. LIVERPOOL,
Plaintiff,
-v.-
CAPTAIN DAVIS, Shield #1282; 17 Civ. 3875 (KPF)
OFFICER GREEN, Shield #7507;
OPINION AND ORDER
OFFICER LARAQUE, Shield #3665;
CAPTAIN KISTE, Shield #958; and
CORRECTION OFFICER LLARCH,
Shield #3352,
Defendants.
KATHERINE POLK FAILLA, District Judge:
Plaintiff Anton Liverpool, proceeding pro se, brings this action under 42
U.S.C. § 1983, against certain correction officers at the Otis Bantum
Correctional Center at Rikers Island (“OBCC”), namely Charles Davis, Brandon
Green, James Laraque, Gustavo Kiste, and William Llarch (collectively,
“Defendants”), stemming from incidents that occurred while Plaintiff was
confined at OBCC. Before the Court now is Defendants’ motion for summary
judgment, in which Defendants argue: (i) Plaintiff’s claims against Defendants
Kiste and Llarch are barred by the statute of limitations; and (ii) Plaintiff’s
claims against all Defendants fail as a matter of law. For the reasons that
follow, the Court concludes that Plaintiff’s claims against Defendants Kiste and
Llarch are indeed untimely, and therefore grants the motion for summary
judgment as to those defendants. The Court also grants Defendants’ motion
for summary judgment against Plaintiff’s Eighth Amendment deliberate
indifference to medical needs claim. But Plaintiff’s Eighth Amendment failure
to protect claim against the remaining defendants survives summary judgment
and will not be dismissed on qualified immunity grounds. Accordingly,

Defendants’ motion is denied in part as to Defendants Davis, Green, and
Laraque.
BACKGROUND1
A. Factual Background
On July 9, 2014, Plaintiff was convicted of a crime under New York State
law. (Def. 56.1 ¶ 2). On July 10, 2014, Plaintiff was being detained inside the
Main Intake area of OBCC, waiting to be transferred from OBCC to a building
for sentenced inmates. (Id. at ¶ 3). During this time, Plaintiff was held in

1 The facts stated herein are drawn from Plaintiff’s Third Amended Complaint (“TAC”
(Dkt. #39)), Defendants’ Rule 56.1 Statement of Material Facts Not in Dispute (“Def.
56.1” (Dkt. #59)), and Plaintiff’s Rule 56.1(b) Counterstatement of Disputed Material
Facts (“Pl. 56.1” (Dkt. #81)), the latter of which comprises both responses to
Defendants’ assertions of material facts not in dispute and material facts ostensibly in
dispute. The Court also draws facts from certain exhibits attached to the Declaration of
Nicholas Manningham in Support of Defendants’ Motion for Summary Judgment
(“Manningham Decl.” (Dkt. #57)). Finally, the Court cites to certain of Plaintiff’s
Exhibits in Opposition to the Motion for Summary Judgment (Dkt. #85), using the
Bates number designations at the bottom of each page.
Citations to the parties’ Rule 56.1 Statements incorporate by reference the documents
and deposition testimony cited therein. See Local Rule 56.1(d). Generally speaking,
where facts stated in a party’s Local Rule 56.1 Statement are supported by testimonial
or documentary evidence, and denied with only a conclusory statement by the other
party, the Court finds such facts to be true. See Local Rule 56.1(c), (d); Biberaj v.
Pritchard Indus., Inc., 859 F. Supp. 2d 549, 553 n.3 (S.D.N.Y. 2012) (“A nonmoving
party’s failure to respond to a Rule 56.1 statement permits the court to conclude that
the facts asserted in the statement are uncontested and admissible.” (internal quotation
mark omitted) (quoting T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 418 (2d Cir. 2009))).
For ease of reference, Defendants’ Memorandum of Law in Support of Their Motion for
Summary Judgment will be referred to as “Def. Br.” (Dkt. #58); Plaintiff’s Memorandum
of Law in Opposition to Defendants’ Motion for Summary Judgment as “Pl. Opp.” (Dkt.
#69); and Defendants’ Memorandum of Law in Further Support of Their Motion for
Summary Judgment as “Def. Reply” (Dkt. #74).
Pen #6 of the Main Intake area, along with approximately eight other inmates.
(Id. at ¶ 5). Three other inmates were being held in Pen #1, which was across
the hall from Pen #6. (Id. at ¶¶ 6-7). Both cells had bars facing the hallway.

(Id.). Defendants Davis, Green, Laraque, and Larch were among the correction
officers working in the Main Intake area of OBCC at that time. (Id. at ¶¶ 4, 11).
At some point during the evening of July 10, 2014, one of Plaintiff’s
fellow inmates in Pen #6, Inmate Brown, began to mix together his feces,
saliva, and urine with toilet water, with the intention of throwing it at the three
inmates in Pen #1. (Def. 56.1 ¶ 8). One of the correction officers in the Main
Intake area saw Brown “relieving himself,” and asked him something along the
lines of “Why you doing that? Doesn’t the toilet work?,” but did not otherwise

seek to stop him (Id. at ¶ 9).2 Plaintiff implored Brown not to throw the
mixture of human waste that he was concocting. (Id. at ¶ 10). Plaintiff then
told Defendants Davis, Green, Laraque, and Llarch that Brown was going to
throw the mixture and asked that he be let out of Pen #6. (Id. at ¶ 11). The
parties agree that Plaintiff did not tell the correction officers specifically that
Brown was going to throw the mixture at him, but Plaintiff did tell the officers
that he did not want to be in Pen #6 when Brown began throwing his mixture.
(Id. at ¶¶ 12-13; Pl. 56.1 ¶ 12). One correction officer spoke to Brown through

the bars of Pen #6 and tried to prevent Brown from throwing the mixture. (Def.
56.1 ¶ 14). Brown threatened to throw the mixture at that correction officer if

2 Plaintiff argues that the officer who asked this question did so in a mocking tone and
was not earnestly investigating the situation. (Pl. 56.1 ¶ 9).
she did not move away. (Id.). The correction officer departed without taking
further action, and no other correction officers took preventative action.
Roughly 20 to 30 minutes after Plaintiff alerted the correction officers to

the situation (Manningham Decl., Ex. C at 19:3-16), Brown began throwing the
mixture at the three inmates in Pen #1. (Def. 56.1 ¶ 15). The parties agree
that, as Brown threw the mixture at the pen across the hallway, it was
“spraying all over the place” and hit Plaintiff as it rebounded off of Pen #6’s
bars. (Id. at ¶ 16). Plaintiff adds that some of the mixture hit Plaintiff as it was
thrown, and not merely after it came in contact with the pen’s bars. (Pl. 56.1
¶ 16). In retaliation, the inmates in Pen #1 began throwing their own mixtures
of human waste at the inmates in Pen #6. (Def. 56.1 ¶ 17; Pl. 56.1 ¶ 17).

Plaintiff estimates that other inmates were throwing mixtures of human waste
intermittently over the course of approximately one hour. (Manningham Decl.,
Ex. C at 20:3-19; but cf. Pl. 56.1 ¶ 19 (claiming that only one inmate in Pen #1
was throwing “urine/[bodily] waste” back to Pen #6). Defendants do not
contest this.
As these events unfolded, the correction officers in the Main Intake Area
made verbal attempts to stop the inmates from throwing their respective
excretory mixtures. (Def. 56.1 ¶ 18). Plaintiff claims that the officers’ words

were delivered in a mocking tone, and that they did not sincerely try to stop the
misbehavior. (Pl. 56.1 ¶ 18).3 Inmate Brown and the inmates in Pen #1 did

3 Indeed, at his deposition, Plaintiff recounted that:
They just sat back. Everyone that was in the immediate area, they
just lean[ed] back on the officers’ station and watched and, you
not comply. (Def. 56.1 ¶ 19). At some point, Defendant Davis radioed for
assistance. (Id.; Pl. 56.1 ¶ 19). Around midnight, a response team, supervised
by Defendant Kiste, arrived in response to this call for assistance. (Def. 56.1

¶¶ 20, 22).
Upon entering the Main Intake area, Defendant Kiste observed feces and
water on the floor and walls. (Def. 56.1 ¶ 23). The response team then ordered
all the inmates in Pens #1 and #6 to turn their backs to the hallway and face
the walls of their pens. (Id. at ¶ 24). The three inmates in Pen #1 initially
refused to comply with the orders to turn around, causing Kiste to disperse
three one-second bursts of “OC spray” — a chemical irritant akin to pepper
spray — to the facial area of each of those inmates. (Id. at ¶¶ 26, 27). The

record indicates that the third one-second burst was administered after the
third inmate had complied by facing the wall, and was arguably unwarranted.
(Pl. 56.1 ¶ 25; Dkt. #85, Def. 101).4 The parties dispute whether the OC spray
was at any point directed into Pen #6, where Plaintiff was being held. (Def.
56.1 ¶ 27; Pl. 56.1 ¶ 27). A video recording of the incident, which the Court
has reviewed, suggests that the OC spray was not directed at Pen #6.

know, sat in the officers’ station and watched it and commented,
like it was a sports event.
(Manningham Decl., Ex. C at 20:22-21:1).
4 Plaintiff argues that each of the three bursts of OC spray was sustained for longer than
one second. (Pl. 56.1 ¶ 26). But, as discussed in further detail below, Plaintiff’s bare
assertions, unsupported by the record in this matter, do not create a genuine dispute of
material fact. The Court has examined a video of the incident in which the OC spray
was administered, and each of the bursts lasted approximately one second.
(Manningham Decl., Ex. E).
(Manningham Decl., Ex. E).5 But an Incident Report Form generated after the
incident suggests that OC spray was directed at Brown, who was held in Pen
#6. (Dkt. #85, Def. 99). This Incident Report Form suggests the possibility

that the video may not have captured the full incident.
The response team ordered the inmates in Pen #6, including Plaintiff, to
lay on the ground. (Def. 56.1 ¶ 28). Plaintiff, who was shirtless, put a white
cloth on the floor and laid on top of it, in compliance with the correction
officers’ order. (Id. at ¶ 30). The inmates were then handcuffed and escorted
out of the Main Intake area, beginning with the inmates held in Pen #1. (Id. at
¶¶ 31, 32). At some point roughly three hours later, Plaintiff was given a
medical shower. (Id. at ¶ 35; Pl. 56.1 ¶ 35). At around 3:32 a.m., Plaintiff was

seen by a physician’s assistant in the clinic. (Def. 56.1 ¶ 36). The physician’s
assistant noted that Plaintiff had been exposed to OC spray, but had no visible
injuries or signs of chemical irritation or burn. (Id. at ¶ 38). Plaintiff reported
feeling throat irritation for about 24 hours after the incident and felt facial
burning for three or four days. (Id. at ¶ 39).

5 Plaintiff claims that he has been unable to view the video recording of the incident in
which Defendant Kiste deployed the OC spray while he has been incarcerated. (Pl.
Opp. 8; Pl. 56.1 ¶ 29). The Court has viewed the video, which begins as the response
team entered the Main Intake area and ends after the inmates held in Pens #1 and #6
have been removed from those areas and are being held in a hallway. Where Plaintiff’s
or Defendants’ statements of fact are contradicted by the video recording, the Court
views “the facts in the light depicted by the videotape.” Scott v. Harris, 550 U.S. 380,
381 (2007). Because the Court does not accept wholesale Defendants’ version of the
facts, and because the Court ultimately dismisses Plaintiff’s claims arising out of the
events depicted on the video recording for untimeliness, Plaintiff has not been
prejudiced by his inability to view the video recording. Nevertheless, the Court
reiterates its belief that incarcerated, pro se plaintiffs should — whenever practicable —
be permitted to view all materials produced in discovery.
B. Procedural Background
Plaintiff filed his Complaint in this action on May 22, 2017. (Dkt. #1).6
Plaintiff named as Defendants Davis, Laraque, Green, and a John Doe
defendant. (Id.). On June 15, 2017, the Court issued an Order of Service,

including a provision directing the New York City Law Department to provide
Plaintiff with the identity of the John Doe defendant named in the Complaint
on or before August 15, 2017, in accordance with Valentin v. Dinkins, 121 F.3d
72 (2d Cir. 1997). (Dkt. #7). The Court further ordered Plaintiff to amend his
Complaint to include the name of the John Doe defendant within 30 days of
receiving the name. (Id.). Defendants Davis, Laraque, and Green answered the
complaint on September 5, 2017. (Dkt. #12).
On November 9, 2017, the New York City Law Department filed a letter

identifying Gustavo Kiste as the John Doe defendant in Plaintiff’s Complaint.
(Dkt. #18). Plaintiff filed a First Amended Complaint on February 6, 2018,
substituting Defendant Kiste in place of John Doe. (Dkt. #27, 29). Plaintiff
filed a Second Amended Complaint on February 13, 2018, adding Defendant
Llarch as a defendant for the first time. (Dkt. #31). Plaintiff filed a Third
Amended Complaint on March 19, 2018. (Dkt. #39). Defendants answered the
Third Amended Complaint on August 29, 2018. (Dkt. #47). On August 21,

6 Throughout this Opinion, in referring to the date that Plaintiff filed documents in this
case, the Court will list the date that the filing was received by the Court and filed on
the public docket. The Court takes note that, because Plaintiff filed these documents
through the mail, the documents are typically dated several days earlier than the date
on which they were filed. The differences in these dates would not impact the Court’s
decisions regarding the timeliness of Plaintiff’s claims.
2018, the Court granted Defendants leave to file their motion for summary
judgment, and set a briefing schedule. (Dkt. #46).
On March 7, 2019, Defendants filed their motion for summary judgment

and supporting papers, including a Local Rule 56.1 Statement of Undisputed
Facts. (Dkt. #56, 57, 58, 59). On May 22, 2019, Defendants filed a letter,
noting that Plaintiff had failed to oppose their motion for summary judgment
and requesting that the motion be granted. (Dkt. #65). On May 30, 2019, the
Court received a letter from Plaintiff, requesting additional time to oppose
Defendants’ motion for summary judgment. (Dkt. #66). The Court granted
Plaintiff this extension on May 31, 2019. (Dkt. #67). Plaintiff filed his brief in
opposition to Defendants’ motion for summary judgment on June 18, 2019.

(Dkt. #69). Defendants filed their reply brief in further support of their motion
for summary judgment on July 18, 2019. (Dkt. #74).
On July 24, 2019, the Court received a letter from Plaintiff, requesting
leave to file an opposition to Defendants’ Rule 56.1 Statement. (Dkt. #75). The
Court granted Plaintiff leave to file a counterstatement on July 31, 2019. (Dkt.
#76). Plaintiff filed his Rule 56.1 Counterstatement on September 20, 2019.
(Dkt. #79). The Court then granted Plaintiff leave to file exhibits in support of
his Rule 56.1 Counterstatement on or before December 15, 2019. (Dkt. #84).

The motion became fully briefed when the Court received Plaintiff’s exhibits in
support of his Rule 56.1 Counterstatement on December 27, 2019. (Dkt. #85).
DISCUSSION
A. Applicable Law
1. Motions for Summary Judgment Under Federal Rule of Civil
Procedure 56
Under Federal Rule of Civil Procedure 56(a), a “court shall grant
summary judgment if the movant shows 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).7
A fact is “material” if it “might affect the outcome of the suit under the
governing law,” and is genuinely in dispute “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Jeffreys v. City of New
York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson).
“It is the movant’s burden to show that no genuine factual dispute
exists” and a court “must resolve all ambiguities and draw all reasonable
inferences in the non-movant’s favor.” Vt. Teddy Bear Co., Inc. v. 1-800
Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). If the movant has met its
burden, “its opponent must do more than simply show that there is some

metaphysical doubt as to the material facts” and, toward that end, “must come
forward with specific facts showing that there is a genuine issue for trial.”

7 The 2010 Amendments to the Federal Rules of Civil Procedure revised the summary
judgment standard from a genuine “issue” of material fact to a genuine “dispute” of
material fact. See Fed. R. Civ. P. 56, advisory comm. notes (2010 Amendments) (noting
that the amendment to “[s]ubdivision (a) … chang[es] only one word — genuine ‘issue’
becomes genuine ‘dispute.’ ‘Dispute’ better reflects the focus of a summary-judgment
determination.”). This Court uses the post-amendment standard, but continues to be
guided by pre-amendment Supreme Court and Second Circuit precedent that refer to
“genuine issues of material fact.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)
(internal citations and quotation marks omitted). The nonmoving party may
not rely on “mere speculation or conjecture as to the true nature of the facts to

overcome a motion for summary judgment.” Knight v. U.S. Fire Ins. Co., 804
F.2d 9, 12 (2d Cir. 1986).
In deciding a motion for summary judgment, “a district court generally
‘should not weigh evidence or assess the credibility of witnesses.’” Rojas v.
Roman Catholic Diocese of Rochester, 660 F.3d 98, 104 (2d Cir. 2011) (quoting
Hayes v. N.Y.C Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996)). But to that
general rule, the Second Circuit has recognized an exception:
in the rare circumstance where the plaintiff relies
almost exclusively on his own testimony, much of which
is contradictory and incomplete, it will be impossible for
a district court to determine whether “the jury could
reasonably find for the plaintiff,” and thus whether
there are any “genuine” issues of material fact, without
making some assessment of the plaintiff’s account.

Jeffreys, 426 F.3d at 554 (internal citation omitted) (quoting Anderson, 477
U.S. at 252). In this rare setting, a court considering a summary judgment
motion may make credibility determinations. SEC v. Jankovic, No. 15 Civ.
1248 (KPF), 2017 WL 1067788, at *8 (S.D.N.Y. Mar. 21, 2017). Even then, the
Second Circuit has cautioned that, “[i]f there is a plausible explanation for
discrepancies in a party’s testimony, the court considering a summary
judgment motion should not disregard the later testimony because of an earlier
account that was ambiguous, confusing, or simply incomplete.” Jeffreys, 426
F.3d at 555 n.2 (emphasis and citation omitted). Instead, such credibility
assessments are to be reserved for “extraordinary cases, where the facts alleged
are so contradictory that doubt is cast upon their plausibility.” Rojas, 660 F.3d
at 106 (citation and quotation marks omitted). A district court “must ask not

whether the evidence unmistakably favors one side or the other but whether a
fair-minded jury could return a verdict for the [non-moving party] on the
evidence presented.” Simpson v. City of New York, 793 F.3d 259, 265 (2d Cir.
2015).
2. Motions for Summary Judgment in Pro Se Cases
In a pro se case, the court must take an additional step and liberally
construe the pro se party’s pleadings “to raise the strongest arguments that
they suggest.” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)
(quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).

This task has been complicated by Plaintiff’s imperfect compliance with
Local Rule 56.1. Under that rule, a movant is required to identify admissible
evidence in support of each factual assertion in his or her Rule 56.1 statement.
See S.D.N.Y. Local Rule 56.1(d) (“Each statement by the movant … pursuant to
Rule 56.1(a) … must be followed by citation to evidence which would be
admissible, set forth as required by Fed. R. Civ. P. 56(c).”). Conversely, a
non-movant seeking to controvert these factual assertions must also cite to
admissible evidence, and where properly supported facts in a Local Rule 56.1

statement are denied with only conclusory assertions, the court will find such
facts to be true. See id.; id. at 56.1(c) (“Each numbered paragraph in the
statement of material facts set forth in the statement required to be served by
the moving party will be deemed to be admitted for purposes of the motion
unless specifically controverted by a correspondingly numbered paragraph in
the statement required to be served by the opposing party.”). Plaintiff has

made clear which of Defendants’ proffered facts he disputes, but has not
identified any admissible evidence in support of his disputes. (See Pl. 56.1).
“Pro se litigants are … not excused from meeting the requirements of
Local Rule 56.1.” Wali v. One Source Co., 678 F. Supp. 2d 170, 178 (S.D.N.Y.
2009) (citing Vt. Teddy Bear , 373 F.3d at 246). Nevertheless, even where there
is incomplete compliance with the Local Rules, a court retains discretion “to
consider the substance of the plaintiff’s arguments.” Id. (citing Holtz v.
Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (“[W]hile a court is not

required to consider what the parties fail to point out in their Local Rule 56.1
Statements, it may in its discretion opt to conduct an assiduous review of the
record even where one of the parties has failed to file such a statement.”
(internal quotation marks omitted))); see also Hayes v. Cty. of Sullivan, 853 F.
Supp. 2d 400, 406 n.1 (S.D.N.Y. 2012) (“In light of Plaintiff’s pro se status, the
Court overlooks his failure to file a Local Rule 56.1 Statement and conducts its
own independent review of the record.”). To be fair to all parties, the Court will
rely principally on its own assiduous review of the record.

B. Analysis
Plaintiff’s Third Amended Complaint brings two claims against
Defendants, each alleging a violation of his Eighth Amendment right to be free
from cruel and unusual punishment: (i) Defendants Davis, Green, Laraque,
and Llarch failed to satisfy their duty to protect Plaintiff from being assaulted
with human waste; and (ii) Defendant Kiste employed excessive force in
utilizing the OC spray. Defendants have moved for summary judgment on both

of these claims, on the bases that: (i) the claims against Defendants Kiste and
Llarch are untimely; (ii) the failure to protect claim must fail as a matter of law;
and (iii) even if the excessive force claim against Defendant Kiste were timely, it
must fail as a matter of law. In his brief in opposition, Plaintiff raises a
separate Eighth Amendment claim for deliberate indifference to medical needs,
which claim Defendants argue also fails as a matter of law.
The Court first addresses Defendants’ arguments concerning the
timeliness of the claims brought against Defendants Kiste and Llarch. The

Court determines that these claims were filed outside the statute of limitations
and do not relate back to timely-filed claims, and therefore grants summary
judgment as to these defendants. But the Court concludes that there is a
genuine dispute of material fact concerning Plaintiff’s failure to protect claim,
brought against Defendants Davis, Green, and Laraque, and denies the motion
for summary judgment as to them. Finally, the Court considers, and grants
summary judgment in favor of Defendants as to Plaintiff’s deliberate
indifference to medical needs claim.

1. Plaintiff’s Claims Against Defendants Kiste and Llarch Are
Untimely
Defendants argue that Plaintiff’s claims against Defendants Kiste and
Llarch are barred by the statute of limitations. (Def. Br. 5-9). “Section 1983
does not provide a specific statute of limitations. Thus, courts apply the
statute of limitations for personal injury actions under state law.” Hogan v.
Fischer, 738 F.3d 509, 517 (2d Cir. 2013) (citing Owens v. Okure, 488 U.S.
235, 249-51 (1989)); Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir.

2002)). In New York, personal injury actions are subject to a three-year statute
of limitations. See Pearl, 296 F.3d at 79. The limitations period begins to run
when: (i) the plaintiff knows or has reason to know of the injuries caused by an
individual defendant, see Singleton v. City of New York, 632 F.2d 185, 191 (2d
Cir. 1980), cert. denied, 450 U.S. 920 (1981); or (ii) the plaintiff knows or has
reason to know that a municipal defendant has an unconstitutional “policy or
custom,” see Pinaud v. County of Suffolk, 52 F.3d 1139, 1157 (2d Cir. 1995).
Generally speaking, plaintiffs are not allowed to circumvent New York’s

three-year statute of limitations by filing a complaint against a John Doe
defendant within the three-year window, and then amending the complaint to
name the defendant at a later time. Hogan, 738 F.3d at 517 (citing Aslanidis v.
U.S. Lines, Inc., 7 F.3d 1067, 1075 (2d Cir. 1993)). As a result, if a plaintiff
seeks to amend a complaint to name a John Doe defendant, and the statute of
limitations has already run, the plaintiff must show that the amended
complaint “relates back” to the original, timely-filed complaint under Federal
Rule of Civil Procedure 15(c). Id.; see also S.A.R.L. Galerie Enrico Navarra v.

Marlborough Gallery, Inc., No. 10 Civ. 7547 (KMW), 2013 WL 1234937, at *3
(S.D.N.Y. Mar. 26, 2013) (stating that it is the plaintiff’s burden to establish
that an amended claim relates back to the date of the original complaint).
In this case, Plaintiff knew or had reason to know of the injuries allegedly
caused by Defendants at the time those injuries occurred: July 10 and 11,
2014. (See generally TAC). As a result, Plaintiff was required to file any claims

that arose out of that incident by July 11, 2017. Plaintiff filed the original
Complaint before that date, on May 22, 2017, naming Defendants Davis,
Green, Laraque, and a John Doe defendant. (Dkt. #1). But Plaintiff did not
manifest an intent to substitute Defendant Kiste in place of the John Doe
defendant until January 29, 2018 (Dkt. #23), and did not in fact make the
substitution until February 6, 2018 (Dkt. #27). Furthermore, Plaintiff did not
add Defendant Llarch as a defendant until he filed his Second Amended
Complaint on February 13, 2018. (Dkt. #31). Because the claims against

Defendants Kiste and Llarch are otherwise untimely, the Court considers
whether these claims “relate back” to the original Complaint under Federal
Rule of Civil Procedure 15(c). Hogan, 738 F.3d at 517.
a. Federal Rule of Civil Procedure 15(c) Generally
Federal Rule of Civil Procedure 15(c) lays out three situations in which
an amendment to a pleading relates back to the original pleading:
(A) The law that provides the applicable statute of
limitations allows relation back;

(B) the amendment asserts a claim or defense that arose
out of the conduct, transaction, or occurrence set out —
or attempted to be set out — in the original pleading; or

(C) the amendment changes the party or the naming of the
party against whom a claim is asserted, if
Rule 15(c)(1)(B) is satisfied and if, within the period
provided by Rule 4(m) for serving the summons and
complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not
be prejudiced in defending on the merits; and

(ii) knew or should have known that the action would
have been brought against it, but for a mistake
concerning the proper party’s identity.

Fed R. Civ. P. 15(c)(1).
For an amended complaint to “relate back” to an original complaint
under Rule 15(c)(1)(C), it must meet four criteria: (i) any new claim “must have
arisen out of conduct set out in the original pleading”; (ii) any newly named
defendant “must have received such notice that it will not be prejudiced in
maintaining its defense”; (iii) any newly named defendant must have known
that “but for a mistake of identity, the original action would have been brought
against [him]”; and (iv) “the second and third criteria [must be] fulfilled within
[the period provided by Rule 4(m) for serving the summons and complaint],
and ... the original complaint [must have been] filed within the limitations
period.” Barrow v. Wethersfield Police Dept., 66 F.3d 466, 468-69 (2d Cir.
1995); see also Ceara v. Deacon, 916 F.3d 208, 211 (2d Cir. 2019).
Rule 15(c)(1)(A) also permits an amended pleading to relate back when
the law that provides the applicable statute of limitations allows relation back.
Hogan, 738 F.3d at 518. Thus, “if the applicable statute of limitations is
determined by state law — as is the case here — courts should assess both the
state and federal relation back doctrines and apply whichever law is more
generous.” Anderson v. City of Mount Vernon, No. 09 Civ. 7082 (ER) (PED),
2014 WL 1877092, at *2 (S.D.N.Y. Mar. 28, 2014).
b. Plaintiff’s Claim Against Defendant Llarch Does Not
Relate Back to the Original Complaint
The Second Circuit has interpreted Rule 15(c)(1)(C) “to preclude relation
back for amended complaints that add new defendants, where the newly added
defendants were not named originally because the plaintiff did not know their
identities.” Hogan, 738 F.3d at 517. “Rule 15(c) explicitly allows the relation
back of an amendment due to a ‘mistake’ concerning the identity of the
parties ... [;] the failure to identify individual defendants when the plaintiff
knows that such defendants must be named cannot be characterized as a

mistake.” Barrow, 66 F.3d at 470.
Here, Plaintiff cannot claim that, “but for a mistake of identity,” he would
have brought claims against Defendant Llarch in the original Complaint. The
original Complaint named four defendants: Defendants Davis, Green, Laraque,
and a John Doe defendant later named as Defendant Kiste. The Complaint did
not make any allegations concerning a misidentified individual who was
actually Defendant Llarch. Nor did Plaintiff substitute Defendant Llarch in

place of a previously named defendant upon realizing that there had been a
mistake of identity.
Instead, Plaintiff named Defendant Llarch as an additional party on
February 13, 2018, after the statute of limitations had run. Courts within this
District have held that the relation-back provision of Rule 15(c) does not apply
in such circumstances. See, e.g., Chunn v. Amtrak, No. 14 Civ. 6140 (PAC)
(HBP), 2017 WL 9538164, at *11 (S.D.N.Y. May 11, 2017) (quoting Pikos v.
Liberty Maint., Inc., No. 09 Civ. 4031 (WFK) (RER), 2015 WL 6830670, at *3-4
(E.D.N.Y. Nov. 6, 2015)); Hahn v. Office & Prof’l Emps. Int’l Union, 107 F. Supp.
3d 379, 384-86 (S.D.N.Y. 2015) (finding no mistake where “[t]he plaintiff has
sued [who he believes is] the right defendant, and simply neglected to sue

another defendant who might also be liable” (quoting In re Vitamin C Antitrust
Litig., 995 F. Supp. 2d 125, 129 (E.D.N.Y. 2014)).
The result would be no different if the Court were to apply New York’s
relation-back rules. New York’s general relation-back statute, § 203 of the Civil
Practice Law and Rules, is “patterned largely after the Federal relation back
rule.” Buran v. Coupal, 87 N.Y.2d 173, 179 (1995); see also Abdell v. City of
New York, No. 05 Civ 8453 (KMK) (JCF), 2006 WL 2620927, at *2 (S.D.N.Y.
Sept. 12, 2006) (“The New York relation-back doctrine tracks the federal rule.”).

As the New York Court of Appeals has explained, the New York rule also
requires that a plaintiff make a “mistake” as to the identity of the proper
parties. Buran, 87 N.Y.2d at 176. Plaintiff’s failure to mention Llarch, or any
John Doe entity standing in the place of Llarch, in the original Complaint is
“not the type of ‘mistake’ contemplated by New York’s relation-back rule.” See
Nollah v. New York City, No. 17 Civ. 634 (JPO), 2018 WL 4636847, at *2-3
(S.D.N.Y. Sept. 27, 2018).
For these reasons, Plaintiff’s untimely claim against Defendant Llarch

does not relate back to his timely original Complaint. Because Plaintiff did not
bring his claim against Defendant Llarch until after the statute of limitations
had run, Defendants’ motion for summary judgment is granted as to Defendant
Llarch.
c. Plaintiff’s Claim Against Defendant Kiste Does Not
Relate Back to the Original Complaint
Nor does Plaintiff’s claim against Defendant Kiste relate back to the
original Complaint. Plaintiff did not know Defendant Kiste’s identity when he
filed the original Complaint — he attributed Kiste’s actions to a John Doe
defendant. And Plaintiff did not learn Defendant Kiste’s identity until after the
statute of limitations had run. (See Dkt. #18, 27). The Second Circuit has held
that a lack of knowledge about a defendant’s identity cannot be characterized
as a “mistake of identity.” Hogan, 738 F.3d at 517-18. As a result,

Rule 15(c)(1)(C) “preclude[s] relation back” in cases like this one, where a
plaintiff names a John Doe defendant because he does not know who the
identity of the defendant until the statute of limitations has run. Id. (citing
Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999); Barrow, 66 F.3d at 470);
see also Ceara, 916 F.3d at 213 (upholding lower court ruling that “Rule 15(c)
does not allow an amended complaint adding new defendants to relate back if
the newly-added defendants were not named originally because the plaintiff did

not know their identities.” (quoting Barrow, 66 F.3d at 470)).
But the Second Circuit has also held that, pursuant to Rule 15(c)(1)(A),
New York’s “more forgiving” principle of relation back for cases involving John
Doe defendants must be considered. Hogan, 738 F.3d at 518-19. Section
1024 of the New York Civil Practice Law and Rules allows a plaintiff “who is
ignorant, in whole or in part, of the name or identity of a [defendant], [to]
proceed against such [defendant] as an unknown party.” If the plaintiff later
learns the name of the defendant, he may amend the original complaint to
reflect that name. See N.Y. C.P.L.R. § 1024 (McKinney 2013); Hogan, 738 F.3d
at 518-19. To take advantage of § 1024, a plaintiff must meet two
requirements: “First, the [plaintiff] must exercise due diligence, prior to the

running of the statute of limitations, to identify the defendant by name.
Second, the [plaintiff] must describe the John Doe party in such form as will
fairly apprise the party that [he] is the intended defendant.” Hogan, 738 F.3d
at 519 (internal quotation marks and citations omitted).
The Court concludes that Plaintiff did not satisfy the first of these
requirements, because he did not exercise due diligence to identify Defendant
Kiste before the statute of limitations had run. Plaintiff filed the original
Complaint on May 22, 2017, more than two years and ten months after the

incident had occurred. This did not allow ample time to obtain a “Valentin
order (which is routinely issued in this district) in order to identify the [person]
he wanted to sue.” Sherrad v. City of New York, No. 15 Civ. 7318 (CM), 2016
WL 1574129, at *4 (S.D.N.Y. Apr. 15, 2016). Plaintiff has neither alleged nor
argued that he took any steps during that time to identify the individual who
had allegedly used excessive force against him, or that he was prevented from
filing the suit earlier “when a timely Valentin order could have yielded the
information he needed well before the cut-off date.” Id. at *6; Smith v. Baugh,

No. 16 Civ. 906V (F), 2018 WL 1918283, at *3 (W.D.N.Y. Apr. 24, 2018)
(collecting cases and holding that “a plaintiff’s failure to more timely initiate a
§ 1983 action in federal court to allow sufficient time to exercise various
discovery devices available to litigants in such actions counts against a plaintiff
who seeks relief pursuant to § 1024”); Galberth v. Washington, No. 14 Civ. 691
(KPF), 2016 WL 1255738, at *11 (S.D.N.Y. Mar. 29, 2016) (finding that the
plaintiff failed to exercise due diligence to identify defendants by “wait[ing]

more than two and one-half years after alleged misconduct to file his [§ 1983]
[c]omplaint”), aff’d, 743 F. App’x 479 (2d Cir. 2018) (summary order).
Nor is there any indication that Plaintiff undertook any effort in the 50
days between the filing of the original Complaint and the running of the statute
of limitations on July 11, 2017, to identify the John Doe defendant. To the
contrary, the record reflects that Plaintiff treated his case with negligence
during this time period: Plaintiff failed to provide the Court with an up-to-date
mailing address, causing mailings to Plaintiff to be returned as undeliverable,

and prompting the Court to order Plaintiff to show cause why his case should
not be dismissed for failure to prosecute. (Dkt. #13).8

8 Plaintiff failed to address Defendants’ timeliness arguments in his brief in opposition to
the motion for summary judgment. (Compare Def. Br. 5-9, with Pl. Opp.). In his
Rule 56.1 Counterstatement, however, Plaintiff argues that he was granted additional
time to file an amended complaint that would substitute Defendant Kiste for John Doe.
(Pl. 56.1 at 6). It is true that in January 2018, after Defendants had provided Plaintiff
with Defendant Kiste’s name, Plaintiff wrote to the Court concerning challenges he was
facing in filing an amended complaint that would substitute Defendant Kiste. (Dkt.
#21, 23). In response, the Court merely provided Plaintiff with forms needed to file an
amended complaint; it did not purport to decide whether any claims made in that
amended complaint would be timely. (Dkt. #22, 24). And to the extent Plaintiff’s
communications with the Court in January 2018 could be interpreted as diligent efforts
to identify Defendant Kiste, such efforts were made after the statute of limitations had
already run in July 2017. Section 1024 requires that diligent efforts be made “prior to
the running of the statute of limitations.” N.Y. C.P.L.R. § 1024 (McKinney 2013).
“Plaintiff’s diligence after the limitations period ended cannot compensate for his lack of
diligence” beforehand. Galberth v. Washington, No. 14 Civ. 691 (KPF), 2016 WL
1255738, at *11 (S.D.N.Y. Mar. 29, 2016), aff’d, 743 F. App’x 479 (2d Cir. 2018)
(summary order).
In light of Plaintiff’s failure to exhibit diligence in attempting to ascertain
the identity of the John Doe defendant, the claim against Defendant Kiste does
not relate back to the original Complaint. Accordingly, Defendants’ motion for

summary judgment is granted as to Defendant Kiste.
2. Plaintiff’s Failure to Protect Claim Survives Defendants’
Motion for Summary Judgment
With summary judgment having been granted in favor of Defendants
Kiste and Llarch, three defendants remain: Defendants Davis, Green, and
Laraque (collectively, the “Remaining Defendants”). The Third Amended
Complaint is best interpreted as asserting that these three correction officers
violated Plaintiff’s Eighth Amendment rights by failing to protect him from the
actions of Inmate Brown, who threw a mixture of his urine, feces, saliva, and
toilet water, hitting Plaintiff and inciting an hour-long war of excrement with
other inmates in which Plaintiff was collateral damage. The Remaining
Defendants argue that their conduct does not, as a matter of law, amount to a
failure to protect in violation of Plaintiff’s Eighth Amendment rights. They

claim both that: (i) they did not violate Plaintiff’s Eighth Amendment rights by
failing to protect him; and (ii) even if they did violate Plaintiff’s Eighth
Amendment rights, they are entitled to qualified immunity. For the reasons
discussed below, the Court disagrees.
a. Failure to Protect Generally
It is well settled that “[p]rison officials have a duty to ... protect prisoners
from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S.
825, 828 (1994) (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556,
558 (1st Cir. 1977)); see also Ross v. Correction Officers John & Jane Does 1-5,
610 F. App’x 75, 76-77 (2d Cir. 2015) (summary order); Villante v. Dep’t of
Corr., 786 F.2d 516, 522-23 (2d Cir. 1986). In order to state an Eighth

Amendment claim for failure to protect an inmate, a plaintiff must show that
he was incarcerated under conditions posing a substantial risk of serious
harm, and that prison officials acted with deliberate indifference to that risk
and the inmate’s safety. See Farmer, 511 U.S. at 835-36. A plaintiff must
show that prison officials had knowledge of, and disregarded, “an excessive risk
to inmate health or safety.” Id. at 837.
Courts apply a two-pronged test to analyze claims brought under the
Eighth Amendment.9 First, under the objective prong, the alleged deprivation

must be “sufficiently serious.” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir.
2006) (citation omitted); Darnell v. Pineiro, 849 F.3d 17, 30 (2d Cir. 2017)
(“Under both the Eighth and Fourteenth Amendments, to establish an objective
deprivation, the inmate must show that the conditions, either alone or in
combination, pose an unreasonable risk of serious damage to his health, which
includes the risk of serious damage to physical and mental soundness.”
(internal quotation marks and citations omitted)). Second, under the subjective
prong, a plaintiff must demonstrate that the charged defendant acted with a

“sufficiently culpable state of mind.” Salahuddin, 467 F.3d at 280 (citation
omitted). A prison official acts with a sufficiently culpable state of mind when

9 Plaintiff was a convicted inmate, and not a pretrial detainee, and thus the Court
analyzes his claims under the Eighth Amendment.
he is “deliberately indifferent” to the health or safety of an inmate. Farmer, 511
U.S. at 834. Accordingly, to state a claim, a plaintiff must allege facts showing
that a defendant knew of and disregarded an excessive risk of inmate health

and safety or that he was aware of facts from which it could reasonably be
inferred that a substantial risk of serious harm existed. Farmer, 511 U.S. at
837; Darnell, 849 F.3d at 30-33.
b. A Triable Issue Exists Concerning Whether the
Conditions of Plaintiff’s Confinement Were Objectively
Sufficiently Serious
As the Remaining Defendants acknowledge, there is no static test to
determine whether a deprivation is sufficiently serious to meet the objective
prong. “[I]nstead, ‘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)). A plaintiff must show that the
deprivation results in a denial of “the minimal civilized measure of life’s
necessities,” Wilson v. Seiter, 501 U.S. 294, 298 (1991) (citation omitted), but
need not show that he suffered “serious injury” to succeed on an Eighth
Amendment claim, Willey v. Kirkpatrick, 801 F.3d 51, 68 (2d Cir. 2015).
The objective prong may be satisfied where an inmate is subjected to
violent acts at the hands of other inmates. Hendricks v. Coughlin, 942 F.2d
109, 113 (2d Cir. 1991) (holding that “an inmate’s claim that prison officials

failed, as a result of their deliberate indifference, to protect him from the violent
actions of other inmates may state a viable § 1983 cause of action”). It may
also be satisfied where prison officials fail to provide “humane conditions of
confinement” and take reasonable measures to “guarantee the safety of the
inmates.” Berry v. N.Y.C. Dep’t of Corr., No. 12 Civ. 7819 (RWS), 2014 WL
2158518, at *3 (S.D.N.Y. May 22, 2014), aff’d, 622 F. App’x 10 (2d Cir. 2015)

(summary order). With regard to claims relating to conditions of confinement,
the Second Circuit has held that exposure to human waste may satisfy the
objective prong, depending on the “duration and the severity of the exposure.”
Willey, 801 F.3d at 68. Thus, exposure to human waste, even for periods of
short duration, may constitute an objectively serious deprivation. Darnell, 849
F.3d at 30.
The conditions Plaintiff was forced to endure would seem to exceed
contemporary standards of decency. Plaintiff had a mixture of human waste —

feces, urine, saliva, and toilet water — thrown at him by a fellow inmate. (Def.
56.1 ¶¶ 15, 16, 17).10 As the mixture hit the bars of Pen #6 — which it did
multiple times, as the inmate threw his waste repeatedly — it sprayed around
the cell, causing Plaintiff to come into further contact with the waste. (Id.).
When an inmate in Pen #1 retaliated by throwing urine back at Pen #6, Plaintiff
was exposed to yet more waste. And though Plaintiff does not claim to have
suffered a serious injury as a result, a substantial risk of serious harm did
exist. The Centers for Disease Control and Prevention states that exposure to

human waste or sewage may cause an “increased risk of becoming ill from

10 The Court does not imply that Inmate Brown intentionally threw the mixture at
Plaintiff; the record indicates that Brown had been attempting to hit another individual
in Pen #1. (Manningham Decl., Ex. C at 18:7-15). Nevertheless, Plaintiff was hit by the
mixture, directly and as it ricocheted off the bars.
waterborne diseases.” Centers for Disease Control and Prevention, Guidance
for Reducing Health Risks to Workers Handling Human Waste or Sewage,
https://www.cdc.gov/healthywater/global/sanitation/workers_handlingwaste.
html (last visited February 24, 2020).11

Further, a reasonable juror could conclude that throwing human waste
at another person constitutes an act of violence. The New York Penal Law
would seem to support this categorization: Section 240.32 makes it a felony
for an inmate to cause or attempt to cause an employee of a correction facility
“to come into contact with blood, seminal fluid, urine, feces, or the contents of
a toilet bowl, by throwing, tossing or expelling such fluid or material.” Thus, a
jury could find that Plaintiff was subjected to violence at the hands of another

prisoner, which would constitute an objective deprivation under the Eighth
Amendment. Farmer, 511 U.S. at 828 (holding that it is well settled that
“[p]rison officials have a duty to ... protect prisoners from violence at the hands
of other prisoners”).
Finally, the Court finds that the unsanitary conditions from which the
Remaining Defendants allegedly failed to protect Plaintiff would suffice to
satisfy the objective prong. The Second Circuit directs courts to evaluate the
“severity and duration” of unsanitary conditions on a case-by-case basis when

evaluating whether conditions of confinement amount to a constitutional
violation, and has rejected a “bright-line durational requirement” or a “minimal

11 Under the Federal Rules of Evidence, a “court may judicially notice a fact that is not
subject to reasonable dispute” where it “can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2).
level of grotesquerie” requirement for viable unsanitary-conditions claims.
Darnell, 849 F.3d at 31 (quoting Willey, 801 F.3d at 68). While “the severity of
an exposure may be less quantifiable than its duration, [] its qualitative offense

to a prisoner’s dignity should be given due consideration.” Id.
The Remaining Defendants argue that Plaintiff’s exposure to waste was
not severe enough to meet the objective prong because he was nothing “more
than a bystander,” was “splashed with residual bodily waste,” and “was not
forced to stay in the cell for very long.” (Def. Br. 11). The Court disagrees with
these factual assertions, as well as the legal significance ascribed to them.
While Plaintiff was not the intended target of Inmate Brown’s attack, he ceased
to be a mere bystander when Inmate Brown hit him with human waste.

Plaintiff was then forced to stay in the cell for roughly one hour, during which
time human waste was intermittently thrown back and forth between inmates.
(Def. 56.1 ¶¶ 15, 16, 17, 22; Manningham Decl., Ex. C at 20:3-19). As the
waste was thrown, it “spray[ed] all over the place,” hitting Plaintiff. (Def. 56.1
¶¶ 16, 17).
These conditions are comparable to those present in Fruit v. Norris, 905
F.2d 1147, 1151 (8th Cir. 1990). There, inmates were forced to clean a portion
of a prison’s raw-sewage lift-pump well. Id. at 1148-49. For ten minutes at a

time, inmates entered the well, into which a continuous stream of raw sewage
was being pumped, without safety equipment. Id. In Willey, the Second
Circuit held that the factual scenario presented in Fruit — a ten-minute
exposure to a “shower of human excrement without protective clothing and
equipment” — was sufficient to state a claim for an Eighth Amendment
violation. 801 F.3d at 68. Plaintiff here was subjected to a comparable factual
scenario. (Def. 56.1 ¶¶ 15, 16, 17, 22; Manningham Decl., Ex. C at 20:3-19).

The severity of his exposure was compounded by the manner in which it
occurred: Plaintiff was forced to watch Inmate Brown mix his own bodily waste
in anticipation of an assault on other inmates, and pleaded to be moved,
knowing what awaited those detained in Pens #1 and #6. When those pleas fell
on deaf ears, Plaintiff’s direst predictions were fulfilled; he was the recipient of
waste thrown by Brown himself, and then was forced to shelter in place as the
two pens’ occupants hurled waste at each other for nearly an hour. After
prison officials arrived to quell the dispute, Plaintiff was forced to lie down on

an excrement-strewn floor. The ensuing humiliation is especially offensive to
an inmate’s — indeed, any person’s — dignity. The Court concludes that a
triable dispute exists as to whether Plaintiff has demonstrated a deprivation
that was sufficiently serious to satisfy the first, objective prong of the Eighth
Amendment failure-to-protect analysis.
c. A Triable Issue Exists Concerning Whether the
Remaining Defendants Had a Sufficiently Culpable
State of Mind
The uncontested facts would also permit a reasonable jury to find that
the Remaining Defendants acted with deliberate indifference towards Plaintiff
in failing to take any action to prevent the debasement to which he was
subjected. The parties agree that Plaintiff warned the Remaining Defendants
that Inmate Brown was mixing his bodily waste; that Brown planned to throw
that waste; and that Plaintiff did not want to be in Pen #6 when the waste was
thrown. (Def. 56.1 ¶¶ 11, 13). A correction officer then approached Brown to
prevent him from throwing the mixture, and Brown responded by threatening

to throw the mixture at the officer. (Def. 56.1 ¶ 14). There is no indication that
the Remaining Defendants took any further actions to stop Brown, or to protect
Plaintiff.
The Remaining Defendants argue that the subjective prong has not been
met for two reasons: (i) they were not aware that the waste was going to be
thrown at Plaintiff; and (ii) even if they were, the Remaining Defendants
responded reasonably to that risk. (Def. Br. 10-13). The Court disagrees on
both counts.

First, the Remaining Defendants argue that they were not deliberately
indifferent, because Plaintiff did not specifically advise them that Inmate Brown
planned to throw the mixture of human waste at Plaintiff; rather, Plaintiff
merely reported that Brown was going to throw the mixture. (Def. Br. 12). The
Remaining Defendants claim that, from this generalized report, they “could not
have drawn the inference that plaintiff faced an imminent, substantial risk of
serious harm,” and could only have inferred that “plaintiff would be present
when Brown threw his bodily fluids at a different inmate.” (Id.). In essence,

the Remaining Defendants argue that, because Plaintiff did not expressly say
that Brown was going to throw the mixture of bodily waste at him, no
reasonable jury could find that the Remaining Defendants were aware of a
substantial risk that Plaintiff would be hit by that waste. But this argument,
which reads a “magic words” requirement into the standard for subjective
deliberate indifference, must be rejected.
To review, the test for deliberate indifference in the context of an Eighth

Amendment claim brought by a convicted inmate is a subjective, not an
objective one. See Darnell, 849 F.3d at 34-36 (holding that the test for
deliberate indifference is subjective in the Eighth Amendment Context and
objective in the case of suits brought by pretrial detainees under the
Fourteenth Amendment). Thus, Plaintiff must establish that the Remaining
Defendants were “subjectively aware” of a substantial risk, not merely that they
should have known of the substantial risk. Id. Nevertheless, “[w]hether ...
prison official[s] had the requisite knowledge of a substantial risk is a question

of fact subject to demonstration in the usual ways, including inference from
circumstantial evidence, and a fact finder may conclude that ... prison
official[s] knew of a substantial risk from the very fact that the risk was
obvious.” Farmer, 511 U.S. at 842.
Based on the record before it, and drawing all inferences in favor of
Plaintiff, the Court concludes that a reasonable jury could find that the
Remaining Defendants were aware of a substantial risk that Plaintiff would be
exposed to Inmate Brown’s bodily waste. See Anderson, 477 U.S. at 248

(holding that a genuine dispute of material fact exists “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party”); see
also Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 620-21 (2d Cir. 1996) (finding
that affirmative inferences in favor of the non-movant are required when
deciding motions for summary judgment concerning the subjective deliberate
indifference of prison officials). The Remaining Defendants indisputably knew
that Brown intended to throw a mixture of his bodily waste from within Pen #6,

which he shared with Plaintiff, and that Plaintiff had requested not to be
present in the cell when the throwing began. (Def. 56.1 ¶¶ 11, 13). The
seriousness of Brown’s intention was underscored by his threat to throw the
waste at the one correction officer who attempted to intercede. (Id. at ¶ 14).
From this alone, a jury could find that the risk of Plaintiff being exposed to
human waste if he remained in Pen #6 was so obvious that the Remaining
Defendants knew of it.
Second, the Remaining Defendants argue that, even if they were aware of

the substantial risk Plaintiff faced, they are not liable for any harm suffered
because they responded reasonably to that risk. (Def. Br. 11-13). The
Remaining Defendants are correct that “prison officials who actually knew of a
substantial risk to inmate health or safety may be found free from liability if
they responded reasonably to the risk, even if the harm ultimately was not
averted.” Farmer, 511 U.S. at 844. But the record does not support the
Remaining Defendants’ contention that they undertook reasonable efforts to
protect Plaintiff from harm. After learning that Inmate Brown intended to

throw the bodily waste that he was accumulating in plain view, a single
correction officer tried, verbally, to persuade Brown not to do so. (Def. 56.1
¶ 14). When this attempt failed, and Brown threatened to throw the waste at
the officer, the officer promptly left the scene. (Id.; Manningham Decl., Ex. C at
19:5-12). Aside from that single attempt to intercede, the Remaining
Defendants made no effort to stop Brown or to remove Plaintiff from the
situation in the twenty minutes that preceded the incident.

The “reasonable response” exception to liability for failure to protect has
been successfully invoked in situations where officers took steps that were
reasonably calculated to resolve the underlying risk to the inmate. See Ford v.
Deacon, — F. App’x —, No. 18-3269, 2019 WL 6271702, at *3 (2d Cir. Nov. 25,
2019) (summary order) (affirming grant of summary judgment against failure to
protect claim where inmate filed grievance concerning condition of cell, and
officers inspected the cell and repaired any issues found); see also El-Hanafi v.
United States, No. 13 Civ. 2072 (GHW), 2015 WL 72804, at *17-18 (S.D.N.Y.

Jan. 6, 2015) (finding prison medical official not liable for failing to diagnose an
inmate’s illness when the official ordered medical testing for the inmate to
assist in diagnosing). Here, the Remaining Defendants were aware that the
officer’s attempt to stop Inmate Brown had failed and yet made no other efforts
to respond to the risk Brown’s conduct created. Even after the incident began,
and inmates were throwing bodily waste around the cells, the Remaining
Defendants did not take any action to restore order, other than a verbal
attempt — the sincerity of which is contested — to stop the inmates. By the

time a response team arrived, the incident had been ongoing for roughly an
hour and the harm to Plaintiff had already occurred. (Manningham Decl.,
Ex. C at 20:3-19; Def. 56.1 ¶¶ 19, 20, 22). A jury could easily reject the
Remaining Defendants’ argument that this conduct was reasonably calculated
to prevent the risk of harm to Plaintiff.
The Court concludes that Plaintiff has put forth evidence that would

permit a reasonable jury to find that the Remaining Defendants were
subjectively deliberately indifferent to the risk Plaintiff faced. Thus, a triable
issue exists concerning the second prong of the Eighth Amendment analysis.
d. The Remaining Defendants Are Not Entitled to Qualified
Immunity at This Stage of the Proceedings
Finally, the Remaining Defendants argue that, even if they violated
Plaintiff’s Eighth Amendment rights by failing to protect him, summary
judgment should be granted in their favor because they are entitled to qualified
immunity. Because the Remaining Defendants are being sued for actions
taken in the course of their official duties, the doctrine of qualified immunity
would shield them from liability for civil damages “unless [the] plaintiff pleads
facts showing [i] that the official violated a statutory or constitutional right, and
[ii] that the right was ‘clearly established’ at the time of the challenged

conduct.” Ricciuti v. Gyzenis, 834 F.3d 162, 167 (2d Cir. 2016) (quoting
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). At the summary judgment
stage, a claim may be dismissed on qualified immunity grounds only when a
court finds that an official has met his or her burden of demonstrating that no
rational jury could find these two prongs to be satisfied. Coollick v. Hughes,
699 F.3d 211, 219 (2d Cir. 2012).
The Court has already concluded that a rational jury could find that the
Remaining Defendants violated Plaintiff’s Eighth Amendment rights by failing
to protect him. All that remains is to determine whether such a right was
“clearly established” as of July 2014. To begin, the Court acknowledges that
the Supreme Court has “lately emphasized the breadth of qualified immunity

protection,” particularly with regard to the clearly established prong. Francis v.
Fiacco, 942 F.3d 126, 145-46 (2d Cir. 2019) (citing City of Escondido v.
Emmons, — U.S. —, 139 S. Ct. 500, 503 (2019) (per curiam)). While the
Supreme Court “does not require a case directly on point for a right to be
clearly established, existing precedent must have placed the statutory or
constitutional question beyond debate.” White v. Pauly, — U.S. —, 137 S. Ct.
548, 551 (2017) (per curiam) (internal quotation marks, citation, and brackets
omitted). That precedent “must be clear enough that every reasonable official

would interpret it to establish the particular rule the plaintiff seeks to apply.”
District of Columbia v. Wesby, — U.S. —, 138 S. Ct. 577, 590 (2018). Moreover,
the Supreme Court has “repeatedly told courts ... not to define clearly
established law at a high level of generality,” City of San Francisco v. Sheehan,
575 U.S. 600 (2015) (quoting al-Kidd, 563 U.S. at 742), instead emphasizing
that “clearly established law must be ‘particularized’ to the facts of the case,”
White, 137 S. Ct. at 552 (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). In short, qualified immunity “gives government officials breathing

room to make reasonable but mistaken judgments about open legal questions”
and “protects ‘all but the plainly incompetent or those who knowingly violate
the law.’” al-Kidd, 563 U.S. at 743 (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)).
At the time of the incident, inmates such as Plaintiff had a clearly
established right to be protected from “violence at the hands of other
prisoners.” Farmer, 511 U.S. at 828. Further, inmates had a clearly

established right to “humane conditions of confinement,” with prison officials
providing “reasonable measures to guarantee the safety of inmates.” Id. at 832.
The Remaining Defendants argue, however, that these rules are defined at too
high a level of generality to have clearly established that their conduct would
violate the law. (Def. Br. 14). Specifically, the Remaining Defendants note that
there are no “Second Circuit cases which say there is a duty to protect inmates
from being near other inmates who are throwing feces or urine.” (Id.).
And while the Remaining Defendants are correct on this narrow point,

there is Second Circuit case law clearly establishing that prison officials
“spraying an inmate with vinegar, excrement, and machine oil” violates the
Eighth Amendment. Hogan, 738 F.3d at 516-17. It is true that Hogan dealt
with prison officials, not fellow inmates, spraying an inmate with excrement.
Id. That does not render Hogan irrelevant for purposes of clearly establishing
law in this case. The Second Circuit need not have issued a decision finding
that the precise conduct in which the Remaining Defendants engaged violated
the Constitution for such a violation to be clearly established. Wesby, 138 S.

Ct. at 590. All that is necessary is a body of relevant case law, particularized to
the facts of the case, that makes plain that the Remaining Defendants’ conduct
was in violation of the Eighth Amendment. Id.
Such a body of relevant case law exists here. The facts and ruling of
Hogan, read in conjunction with black-letter law providing that “prison officials
may not abuse prisoners directly, nor may they indirectly subject prisoners to

harm by facilitating abuse at the hands of prisoners’ fellow inmates,” Randle v.
Alexander, 960 F. Supp. 2d 457, 471 (S.D.N.Y. 2013) (collecting Second Circuit
case law), places it beyond debate that a prison official cannot permit one
inmate to spray another inmate with human waste. See also Francis v. City of
New York, No. 17 Civ. 1453 (LAK) (HBP), 2018 WL 4659478, at *4 (S.D.N.Y.
Aug. 21, 2018) (“Courts have found that, when an inmate informs corrections
officers about a specific fear of assault and is then assaulted, this is sufficient
to proceed on a claim of failure to protect.” (quoting Beckles v. Bennett, No. 05

Civ. 2000 (JSR), 2008 WL 821827 at *17 (S.D.N.Y. Mar. 26, 2008))). Because a
reasonable jury could find that the Remaining Defendants were aware of a
substantial risk that Plaintiff would be exposed to repeated sprays of bodily
waste over the course of an hour, that jury could find that the Remaining
Defendants violated a clearly established right in failing to protect Plaintiff.12
A second body of case law forecloses qualified immunity in this case: the
Eighth Amendment’s clearly established protections against unsanitary

12 The premise of the Remaining Defendants’ argument, that they are entitled to qualified
immunity unless there is a precedential case establishing that there is a duty to protect
inmates from being sprayed by another inmate’s bodily waste, would require a “case
directly on point” before qualified immunity can be defeated. (Def. Br. 13-14). But the
Supreme Court has explicitly held the law “does not require a case directly on point for
a right to be clearly established,” so long as “existing precedent [has] placed the
statutory or constitutional question beyond debate.” White v. Pauly, — U.S. —, 137 S.
Ct. 548, 551 (2017) (per curiam) (internal quotation marks, citation, and brackets
omitted).
conditions of confinement. See Gaston v. Coughlin, 249 F.3d 156, 164-66 (2d
Cir. 2001). Whether this right has been violated through exposure to human
waste “depends on both the duration and the severity of the exposure.” Willey,

801 F.3d at 68 (collecting intra- and inter-Circuit case law that predates July
2014). In Fruit, a 1990 decision cited in Willey, the Eighth Circuit held that a
reasonable jury could find that the Eighth Amendment had been violated when
an inmate was exposed to a “shower of excrement without protective clothing
and equipment” for ten minutes. Fruit, 905 F.2d at 1151. The conditions to
which Plaintiff was exposed here — human waste being splashed around his
cell repeatedly over the course of an hour while prison officials provided
running commentary from an adjoining room but no assistance — are

analogous. And while it is true that the Second Circuit’s Willey decision was
issued after the events at issue here, this Court finds that its legal conclusions
were obvious, and would have been obvious to a competent officer in July
2014.
Typically, only decisions by the Supreme Court or the Second Circuit
suffice to “clearly establish” that conduct is unlawful within this Circuit. See
Lynch v. Ackley, 811 F.3d 569, 578-79 (2d Cir. 2016); but see id. at 579 n.9.
But the Second Circuit has recognized that law may be clearly established by

decisions from other circuits, if those decisions “clearly foreshadow a particular
ruling on the issue.” Terebesi v. Torreso, 764 F.3d 217, 231 (2d Cir. 2014).
Willey’s reliance on Fruit, and the two Circuits’ identical analyses of conditions
of confinement claims, makes clear that Fruit foreshadowed the Second
Circuit’s own ruling on the issue. Wiley, 801 F.3d at 68. More fundamentally,
Fruit reflects that the “contours of the right in question [were] clearly
established” when Fruit was decided in 1990: exposing an inmate to a shower

of human waste, even for a short period of time, violates the Eighth
Amendment. Id. at 231 n.12. Given the law and the facts addressed in this
section, a reasonable jury could find that the Remaining Defendants’ failure to
protect Plaintiff from unsanitary conditions violated a clearly established right.
The Remaining Defendants simply could not have believed, based on the
governing law at the time, that their studied inaction in the face of grotesque,
unsanitary chaos accorded with the Eighth Amendment. For all of the reasons
discussed above, the Court concludes that the Remaining Defendants have

failed to meet their burden of demonstrating that no rational jury could
conclude “[i] that the official violated a statutory or constitutional right, and
[ii] that the right was clearly established at the time of the challenged conduct.”
Coollick, 699 F.3d at 219 (quoting al-Kidd, 131 S. Ct. at 2080). Thus, the
Remaining Defendants are not entitled to qualified immunity from Plaintiff’s
failure to protect claim at this point in the proceedings.
3. Summary Judgment Is Granted As to Plaintiff’s Deliberate
Indifference to Medical Needs Claim
Plaintiff’s brief in opposition to Defendants’ motion for summary
judgment contains a few sentences that appear to assert a claim for deliberate
indifference to medical needs in violation of the Eighth Amendment: Plaintiff
claims that, after the response team had arrived in the Main Intake area and
removed him from Pen #6, he was “held in the hallway for an unreasonable
amount of time (hours)” before he was given medical treatment in the form of a
medical shower, an eye wash, and an evaluation by a physician’s assistant.
(Pl. Opp. 7). Similarly, Plaintiff’s Local Rule 56.1 Counterstatement contains

allegations (unsupported by citations to the record), that Plaintiff was held in
the hallway for approximately three hours while other inmates were given
medical treatment before he was given any treatment. (Pl. 56.1 ¶ 35).
Defendants argue that the operative Complaint does not include any
allegations that would suggest that it asserted a claim for deliberate
indifference to medical needs. (Def. Reply 6-7). The Court agrees. The Third
Amended Complaint merely alleges that Plaintiff was given an eye wash and a
medical shower; it does not contain any information about how long Plaintiff

waited to have this treatment provided, nor does it include any suggestion that
Plaintiff believed the delay in treatment or treatment itself was unreasonable.
(See generally TAC). Because Plaintiff’s deliberate indifference to medical needs
claim is not present in the operative complaint, the Court need not consider it.
See King v. Puershner, No. 17 Civ. 1373 (KMK), 2019 WL 4519692, at *10
(S.D.N.Y. Sept. 19, 2019) (finding that “[i]t is well settled that a [pro se] litigant
may not raise new claims not contained in the complaint in opposition to a
motion for summary judgment” (quoting Mediavilla v. City of New York, 259 F.

Supp. 3d 82, 106 (S.D.N.Y. 2016))); Mira v. Argus Media, No. 15 Civ. 9990
(RJS), 2017 WL 1184302, at *3 n.4 (S.D.N.Y. Mar. 29, 2017) (“Although district
courts sometimes consider new factual allegations made in a pro se plaintiff’s
opposition briefs where they are consistent with those in the complaint ... they
do not consider entirely new claims.”); Carby v. Holder, No. 11 Civ. 5775 (DLC),
2013 WL 3481722, at *7 (S.D.N.Y. July 10, 2013) (“Discovery has concluded,
and [plaintiff] has made no request to amend her complaint to include this

claim. It is generally inappropriate for a [pro se] plaintiff to raise new claims for
the first time in opposition to a motion for summary judgment.”).
That being said, the Court takes notice of the fact that Plaintiff’s original
Complaint (Dkt. #1), First Amended Complaint (Dkt. # 29), and Second
Amended Complaint (Dkt. #31), do contain some allegations about the amount
of time that Plaintiff was forced to wait for medical treatment after he was
removed from Pen #6. Read liberally, these pleadings could be construed as
asserting a claim for deliberate indifference to medical needs. And the Second

Amended Complaint was the operative complaint for the majority of fact
discovery, suggesting that Defendants might have been on notice to seek
discovery concerning such a claim. (Dkt. #20, 29). Because Defendants were
aware that Plaintiff took issue with the timing in which they provided him
access to medical treatment, it could be argued that they would not be
prejudiced by inclusion of the denial of medical treatment claim at this point in
the proceedings. See Simpson v. Town of Warwick Police Dep’t, 159 F. Supp. 3d
419, 440 (S.D.N.Y. 2016) ( “However, under Federal Rule of Civil Procedure

15(b), the Court may consider claims outside those raised in the pleadings ‘so
long as doing so does not cause prejudice’ to defendants. Accordingly, in
contrast to claims that are ‘entirely new,’ claims that are ‘related to or are mere
variations of previously pleaded claims ... may be raised on a motion for
summary judgment where the defendant was clearly on notice from the
complaint and was not unfairly prejudiced.’” (quoting, first, Cruz v. Coach
Stores, Inc., 202 F.3d 560, 569 (2d Cir. 2000), and second, Henry v. Metro.

Transp. Auth., No. 07 Civ. 3561 (DAB), 2014 WL 4783014, at *10 (S.D.N.Y.
Sept. 25, 2014))).
Even if the Court were to consider Plaintiff’s deliberate indifference to
medical needs claim and read the allegations in Plaintiff’s opposition brief and
56.1 Counterstatement as amending the Third Amended Complaint, the claim
would fail. “[I]n cases where a prisoner alleges ‘a temporary delay or

interruption in the provision of otherwise adequate medical treatment, it is
appropriate to focus on the challenged delay or interruption in treatment rather
than the prisoner's underlying medical condition alone.’” Benjamin v. Pillai, —
F. App’x —, 2019 WL 5783304, at *2 (2d Cir. Nov. 6, 2019) (summary order)
(quoting Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003)). Moreover, “the
seriousness of a delay in medical treatment may be decided ‘by reference to the
effect of delay in treatment. Consequently [,] delay in medical treatment must
be interpreted in the context of the seriousness of the medical need, deciding

whether the delay worsened the medical condition, and considering the reason
for delay.’” Smith, 316 F.3d at 186 (alterations and emphasis omitted) (quoting
Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1188 (11th Cir. 1994)). Here,
Plaintiff has alleged that he was forced to wait three hours to receive medical
attention after being exposed to human waste and OC spray. (Pl. Opp. 7). He
has not alleged that the delay in treatment caused his condition to worsen.
Nor has he challenged the reasonableness of the medical treatment that he
eventually received. And the reason that Plaintiff has identified for the delay in
treatment is, at worst, benign: Defendants were providing medical treatment to

each affected inmate in turn, starting with the inmates who suffered the worst
injuries, including the inmates who were directly targeted with the OC spray.
(Pl. Opp. 7; Pl. 56.1 ¶ 35). These allegations would not support a plausible
claim for deliberate indifference to medical needs. See Bilal v. White, 494 F.
App’x 143, 145-146 (2d Cir. 2012) (summary order) (holding that allegations of
“temporary delay or interruption in the provision of otherwise adequate medical
treatment” lasting “only a few hours” did not, without more, support a viable
Eighth Amendment claim).13

CONCLUSION
For the reasons set forth above, Defendants’ motion for summary
judgment is GRANTED IN PART and DENIED IN PART. The motion is
GRANTED as to Defendants Kiste and Llarch. The motion is DENIED as to
Defendants Davis, Green, and Laraque. The Clerk of Court is directed to

13 Plaintiff’s brief in opposition also contains a conclusory allegation that a medic “sent
him back to a partially decontaminated cell where contact with cell bars reactivated
[the] O.C. chemical agent’s burning sensations. Any contact with the structure of [the]
cell was equivalent to a second exposure.” (Pl. Opp. 7). A similar allegation was present
in Plaintiff’s original Complaint (Dkt. #1), but no similar facts are alleged in the First
Amended Complaint, Second Amended Complaint, Third Amended Complaint, or 56.1
Counterstatement. (Dkt. #29, 31, 39, 79). This allegation does not suggest that any
named Defendant was responsible for Plaintiff’s alleged second exposure to the OC
spray and could not have put Defendants on notice of such a claim against them. It
would be prejudicial to Defendants to allow the second-exposure allegation, which was
not present in the operative Complaint, to amend Plaintiff’s pleadings such that it is
asserted against them. Thus, the Court will not consider this allegation, raised for the
first time in Plaintiff’s opposition. See Pandozy v. Segan, 518 F. Supp. 2d 550, 554 n. 1
(S.D.N.Y. 2007) (declining to consider new claims raised in a pro se plaintiff’s opposition
papers), aff’d, 340 F. App’x 723 (2d Cir. 2009) (summary order).
terminate the motion at docket entry 56. The Clerk of Court is directed to
terminate Defendants Llarch and Kiste from this proceeding.
In order address potential next steps in this matter, the parties are

hereby ORDERED to appear for a telephonic conference in this matter on
March 23, 2020, at 2:00 p.m., in Courtroom 618 of the Thurgood Marshall
Courthouse, 40 Foley Square, New York, New York 10007.
At the appointed date and time for the conference, the Warden or other
official in charge of the Intake Center shall produce prisoner Anton F.
Liverpool, Identification No. 155581, at a suitable location within the Intake
Center equipped with a telephone, for the purpose of participating by telephone
in the conference with the Court and defense counsel in the above referenced

matter. At the appointed time, the parties shall call (888) 363-4749 and enter
access code 6624801. Please note, the phone conference line will not be
available prior to 2:00 p.m. Counsel for Defendants must (i) transmit this
Order to the Warden forthwith; (ii) contact the Intake Center forthwith to
arrange the call and to determine the telephone number at which pro se
plaintiff will be reachable at the above time and date; and (iii) telephone the
Court with pro se plaintiff on the line at the time and date of the conference.
SO ORDERED.
Dated: February 26, 2020 Kathe fal. fild-
New York, New York
KATHERINE POLK FAILLA
United States District Judge

Sent by First Class Mail to:
Anton Liverpool
No. 155581
Intake Center PO Box 8249
Cranston, Rhode Island 02920

44

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10321117. Public record. Not legal advice.