Correa v. Ginty

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ANTHONY CORREA,

MEMORANDUM OPINION

Plaintiff,

AND ORDER

-against-

20-CV-02875 (PMH)

SGT. LYNCH, et al.,

Defendants.

PHILIP M. HALPERN, United States District Judge:

Plaintiff Anthony Correa (“Plaintiff”), proceeding pro se and in forma pauperis, brings this

action under 42 U.S.C. § 1983 against Captain James Ginty (“Ginty”), Sergeant Lynch (“Lynch”),

Corporal Matis (“Matis”), Deputy CO Anthony Gurrieri (“Gurrieri”), Deputy Torres (“Torres”),

and Nurse Wendy (“Wendy,” and collectively, “Defendants”) for violating his constitutional rights

while he was incarcerated at the Sullivan County Jail (“SCJ”).1 (Doc. 2, “Compl.”). Generally,

Plaintiff alleges that on January 9, 2020: (1) Ginty, Lynch, Matis, Gurrieri, and Torres either used

excessive force against him or failed to intervene in the use of that force; and (2) Wendy was

deliberately indifferent to his serious medical needs following the use of excessive force. (See id.

at 5-8). Plaintiff also alleges a violation of N.Y. Corr. Law § 137(5). (Id. at 4).

Lynch filed a motion to dismiss the claims against him under Federal Rule of Civil

Procedure 12(b)(6) on September 29, 2020. (Doc. 34; Doc. 37, “Lynch Br.”). The following day,

September 30, 2020, Matis, Gurrieri, and Torres2 moved to dismiss the claims against them under

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 39; Doc. 42, “Matis Br.”). Both

1 The Court sua sponte dismissed Ginty from this action in its April 20, 2020 Order of Service because

Plaintiff failed to “allege any facts showing how . . . Ginty was personally involved” in the underlying

events. (Doc. 6 at 3). Wendy filed an Answer on July 31, 2020. (Doc. 20).

2 For ease of reference, Matis, Gurrieri, and Torres are referred to collectively as the “Matis Defendants.”

motions, and their supporting papers, were served on Plaintiff. (See Doc. 38; Doc. 44). Although

papers opposing the pending motions were scheduled to be filed and served on or before November

2, 2020, the Court has received no correspondence from Plaintiff since September 17, 2020, when

he notified the Court that his address had changed. (See Doc. 29; Doc. 32). The Court will consider,

however, Plaintiff’s opposition to Lynch’s and the Matis Defendants’ pre-motion conference

letters. (Doc. 28, “Pl. Ltr.”).

For the reasons below, the motions to dismiss are DENIED except as indicated herein.

BACKGROUND

On January 9, 2020, Plaintiff was incarcerated at SCJ as a pretrial detainee. (Compl. at 5,

10).3 At approximately 9:45 p.m. that evening, Plaintiff kicked his cell gate “with the bottom of

[his] foot” because he had been denied access to the law library “several times prior [that] date.”

(Id. at 5). As Plaintiff kicked, Lynch, Matis, Gurrieri, and Torres responded to Plaintiff’s cell;

Plaintiff claims that those individuals opened his cell, “rushed” toward him with their “fist[s] up,”

and “punch[ed] at [him].” (Id.). Plaintiff says that he shielded his face with his hands “to protect

[his] face from getting hit . . . and getting hurt.” (Id.). As Plaintiff hid his face, Lynch and Matis

“picked [him] up into the air and slammed [his] body to the floor,” causing his head to “bounce[]

off of the ground.” (Id.). After being slammed into the ground, unspecified individuals bound

Plaintiff’s hands. (Id.). At this juncture, Lynch “place[d] his right knee onto [Plaintiff’s] neck,”

applying pressure and making it difficult for Plaintiff to breathe. (Id. at 5-6). Although Plaintiff

pled with Lynch to stop, the latter applied more pressure and left Plaintiff “gasping for air.” (Id. at

6). As Plaintiff struggled to breathe, Lynch, Matis, and Torres punched Plaintiff; they taunted him,

asking him, “Stop what[?] Stop what[?]” (Id.). The trio beat Plaintiff to tears. (Id.).

3 Citations to the Complaint correspond to the pagination generated by ECF.

As Plaintiff wept, Matis and Torres lifted him by his restraints and escorted him to the

infirmary. (Id.). Upon arrival at the infirmary, Wendy questioned Plaintiff about what transpired

and, thereafter, spoke with Matis and Torres. (Id.). After speaking with the officers, Wendy

“checked [Plaintiff] real quick,” and ignored Plaintiff’s injuries, commenting, “Oh, you’ll be fine.”

(Id. at 6-7). Plaintiff told Wendy about pain in his head, his blurred vision, and that he spat up

blood; he also had open wounds on his legs, hip, neck, and left shoulder, in addition to “numerous

scrapes and bruises all over [his] body.” (Id. at 7). Plaintiff was neither evaluated nor treated. (Id.).

Although Plaintiff requested to be taken to the hospital, he was escorted back to his cell without

care of any kind. (Id. at 6-7). This suit followed.

STANDARD OF REVIEW

I. Federal Rule of Civil Procedure 12(b)(6)

A Rule 12(b)(6) motion enables a court to dismiss a complaint for “failure to state a claim

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is

not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant

has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). The factual allegations pled “must

be enough to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555.

“When there are well-ple[d] factual allegations, a court should assume their veracity and

then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.

Thus, the Court must “take all well-ple[d] factual allegations as true, and all reasonable inferences

are drawn and viewed in a light most favorable to the plaintiff[].” Leeds v. Meltz, 85 F.3d 51, 53

(2d Cir. 1996). The presumption of truth, however, “‘is inapplicable to legal conclusions,’ and

‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.’” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556

U.S. at 678 (alteration in original)). Therefore, a plaintiff must provide “more than labels and

conclusions” to show entitlement to relief. Twombly, 550 U.S. at 555.

A complaint submitted by a pro se plaintiff, “however inartfully ple[d], must be held to

less stringent standards than formal pleadings drafted by lawyers . . . .” Estelle v. Gamble, 429

U.S. 97, 106 (1976) (internal quotation marks omitted). Because pro se plaintiffs “‘are often

unfamiliar with the formalities of pleading requirements,’ courts must ‘apply a more flexible

standard in determining the sufficiency of a pro se [complaint] than they would in reviewing a

pleading submitted by counsel.’” Smith v. U.S. Dep’t of Justice, 218 F. Supp. 2d 357, 361

(W.D.N.Y. 2002) (quoting Platsky v. Cent. Intel. Agency, 953 F.2d 26, 28 (2d Cir. 1991)).

However, while “[p]ro se complaints are held to less stringent standards than those drafted by

lawyers, even following Twombly and Iqbal,” dismissal is proper “where a plaintiff has clearly

failed to meet minimum pleading requirements.” Thomas v. Westchester Cty., No. 12-CV-6718,

2013 WL 3357171, at *2 (S.D.N.Y. July 3, 2013) (internal citations omitted); see also Chavis v.

Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (“Even in a pro se case . . . although a court must

accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal

conclusions, and threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” (internal quotation marks omitted)). Therefore, while the

Court must “draw the most favorable inferences that [a plaintiff’s] complaint supports, [it] cannot

invent factual allegations that [a plaintiff] has not pled.” Chappius, 618 F.3d at 170. Yet, the Court

has also a duty to interpret “the pleadings of a pro se plaintiff liberally and interpret them ‘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)).

Moreover, when deciding an essentially unopposed motion to dismiss, as is the case here,

“the Court is to ‘assume the truth of a pleading’s factual allegations and test only its legal

sufficiency. Thus, although a party is of course to be given a reasonable opportunity to respond to

an opponent’s motion, the sufficiency of a complaint is a matter of law that the court is capable of

determining based on its own reading of the pleading and knowledge of the law.’” Law v. Corizon

Med. Servs., No. 13-CV-5286, 2014 WL 2111675, at *3 (S.D.N.Y. May 12, 2014) (quoting McCall

v. Pataki, 232 F.3d 321, 322-23 (2d Cir. 2000)). Therefore, it is appropriate for the Court to test

the legal sufficiency of the Complaint even without the benefit of formal opposition to the motions.

II. Documents Considered

On a Rule 12(b)(6)4 motion, “the Court is entitled to consider facts alleged in the complaint

and documents attached to it or incorporated in it by reference, documents ‘integral’ to the

complaint and relied upon in it, and facts of which judicial notice may properly be taken under

Rule 201 of the Federal Rules of Evidence.” Heckman v. Town of Hempstead, 568 F. App’x 41,

4 The Matis Defendants argued that the failure to exhaust administrative remedies, as required by the Prison

Litigation Reform Act (“PLRA”), addressed infra, is a jurisdictional defect requiring dismissal under

Federal Rule of Civil Procedure 12(b)(1). (Matis Br. at 9 (“Plaintiff did not comply with the PLRA . . . and

therefore . . . this Court lacks subject matter jurisdiction.”). However, the Second Circuit has explained that

“exhaustion is not jurisdictional.” Richardson v. Goord, 347 F.3d 431, 433 (2d Cir. 2003); see also Arnold

v. Goetz, 245 F. Supp. 2d 527, 531 (S.D.N.Y. 2003) (“Federal Rule of Civil Procedure 12(b)(1) provides

for the dismissal of a complaint when the court lacks jurisdiction over the subject matter. However, the

PLRA’s exhaustion requirement is not jurisdictional in nature.” (internal citations and quotation marks

omitted)). As such, the Matis Defendants’ motion to dismiss under Rule 12(b)(1) is denied because there is

no basis for such a motion on the facts presented. While exhaustion may be a complete defense here,

adjudication of this issue is inappropriate at this stage of the litigation.

43 (2d Cir. 2014); see also Manley v. Utzinger, No. 10-CV-2210, 2011 WL 2947008, at *1 n.1

(S.D.N.Y. July 21, 2011) (“The Court may consider . . . documents incorporated into the complaint

by reference, and documents possessed by or known to the plaintiff and upon which plaintiff relied

in bringing the suit.”). Still, “[w]here an extrinsic document is not incorporated by reference, the

district court may nevertheless consider it if the complaint relies heavily upon its terms and effect,

which renders the document integral to the complaint.” Schafer v. Direct Energy Servs., LLC, No.

20-3084-CV, 2021 WL 1621595, at *1 (2d Cir. Apr. 27, 2021) (internal quotation marks omitted).

Both motions are supported by affidavits signed by Harold L. Smith, Jr. (“Smith”), the

highest-ranking officer at SCJ and the Jail Administrator at that facility since January 2005. (Doc.

36 ¶ 1; Doc. 41 ¶ 1). Annexed to the affidavits are copies of: (1) the SCJ Inmate Rule Book in its

entirety (Doc. 36-1; 41-1); (2) the personal property envelope Plaintiff signed acknowledging

receipt of the SCJ Inmate Rule Book (Doc. 36-2; Doc. 41-2); (3) the specific portion of the SCJ

Inmate Rule Book outlining the inmate grievance procedure (Doc. 36-3; Doc. 41-3); (4) the

Informal Grievance Form for Grievance No. 20-015 (Doc. 36-4); (5) documents associated with

Grievance No. 20-031 and Grievance No. 20-032 (Doc. 36-5; Doc. 41-4); and (6) an April 21,

2020 letter from Plaintiff requesting copies of Grievance No. 20-031 and Grievance No. 20-032

(Doc. 41-5). Lynch argues that the Court may consider these documents now because “the

Complaint itself contains an allegation regarding the PLRA’s exhaustion requirement.” (Lynch Br.

at 5). The Matis Defendants likewise argue that the Court may consider these extraneous

documents because Plaintiff referenced exhaustion. (Matis Br. at 8-9). The Court disagrees.

The Complaint’s lone reference to grievances reads as follows:

I also understand that prisoners must exhaust administrative

procedures before filing an action in federal court about prison

conditions, 42 U.S.C. § 1997e(a), and that my case may be

dismissed if I have not exhausted administrative remedies as

required.

(Compl. at 11). This reference to the PLRA’s exhaustion requirement in the abstract does not

incorporate SCJ’s grievance procedure—or grievances themselves—into to the Complaint.5 Were

the Court to hold otherwise, it would contradict precedent holding squarely that incarcerated

individuals need not establish compliance with the PLRA as a prerequisite to bringing suit. See

Jones v. Bock, 549 U.S. 199, 216 (2007) (“[I]nmates are not required to specially plead or

demonstrate exhaustion in their complaints. We understand the reasons behind the decisions of

some lower courts to impose a pleading requirement . . . but that effort cannot fairly be viewed as

an interpretation of the PLRA.”); Allah v. Switz, No. 14-CV-5970, 2017 WL 519269, at *5

(S.D.N.Y. Feb. 8, 2017) (declining to consider extraneous grievance documents where the plaintiff

“ma[de] no reference” to the documents submitted and noting that “[e]xhaustion is not ‘integral’

to Plaintiff’s claims—it is an affirmative defense that Defendants bear the burden of proving”); cf.

Gunn v. Annucci, No. 20-CV-02004, 2021 WL 1699949, at *3 (S.D.N.Y. Apr. 29, 2021)

(concluding that extraneous grievance documents could be considered because they were “integral

to and referenced in” the complaint in light of the facts plaintiff pled).

As such, the Court will not consider the documents submitted by Lynch and the Matis

Defendants in support of their motions to dismiss.6

5 Plaintiff asserted in his opposition to the pre-motion conference requests that he complied with the PLRA

and filed timely grievances that were “denied because they were not timely processed by the

administration.” (Pl. Ltr. ¶¶ 3, 7).

6 Both Lynch and the Matis Defendants argue that, should the Court decline to consider the extraneous

documents, their motions be converted into motions for summary judgment under Federal Rule of Civil

Procedure 56. (Lynch Br. at 8-9; Matis Br. at 18-19). This Court has “complete discretion in determining

whether to convert” motions to dismiss into motions for summary judgment, Abbey v. 3F Therapeutics,

Inc., No. 06-CV-409, 2009 WL 4333819, at *5 (S.D.N.Y. Dec. 2, 2009), and declines to do so here.

ANALYSIS

I. Failure to Exhaust Administrative Remedies

The PLRA provides that “[n]o action shall be brought with respect to prison conditions

under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison,

or other correctional facility until such administrative remedies as are available are exhausted.” 42

U.S.C. § 1997e(a). This provision “applies to all inmate suits about prison life, whether they

involve general circumstances or particular episodes,” Hernández v. Coffey, 582 F.3d 303, 305 (2d

Cir. 2009) (quoting Porter v. Nussle, 534 U.S. 516, 532 (2002)), and it is “‘mandatory’: [a]n inmate

‘shall’ bring ‘no action’ (or said more conversationally, may not bring any action) absent

exhaustion of available administrative remedies.” Ross v. Blake, 136 S.Ct. 1850, 1856 (2016)

(citation omitted). “Moreover, the PLRA ‘requires proper exhaustion, which means using all steps

that the prison grievance system holds out.’” Ayala-Rosario v. Westchester Cty., No. 19-CV-3052,

2020 WL 3618190, at *4 (S.D.N.Y. July 2, 2020) (quoting Williams v. Priatno, 829 F.3d 118, 122

(2d Cir. 2016)). This “means that ‘prisoners must complete the administrative review process in

accordance with the applicable procedural rules—rules that are defined not by the PLRA, but by

the prison grievance process itself.’” Gottesfeld v. Anderson, No. 18-CV-10836, 2020 WL

1082590, at *6 (S.D.N.Y. Mar. 6, 2020) (quoting Johnson v. Killian, 680 F.3d 234, 238 (2d Cir.

2012)). Compliance with the PLRA “is an affirmative defense, not a pleading requirement, and

therefore a motion to dismiss for failure to exhaust may only be granted if it is clear from the face

of the complaint that the plaintiff failed to exhaust” his administrative remedies. See Gunn v.

Beschler, No. 16-CV-6206, 2020 WL 7398751, at *4 (W.D.N.Y. Dec. 17, 2020).

The Complaint makes no reference to the grievance process apart from acknowledging the

fact that this “case may be dismissed” for failure to comply with the PLRA. (Compl. at 11). It is,

therefore, not clear from the face of the Complaint that Plaintiff failed to exhaust his administrative

remedies. See Woodhouse v. City of Mount Vernon, No. 13-CV-00189, 2016 WL 354896, at *8

(S.D.N.Y. Jan. 27, 2016) (“If exhaustion is not an affirmative pleading requirement, then plaintiff[]

cannot be penalized for what [he] do[es] not say in [his] pleadings about [his] efforts to exhaust.”

(alterations in original, internal quotation marks omitted)); (see also Pl. Ltr. ¶¶ 3-4, 7 (asserting

that Plaintiff complied with the PLRA)). The motions to dismiss on the basis of Plaintiff’s failure

to exhaust his administrative remedies are, therefore, denied. Lynch and the Matis Defendants may

renew this argument at summary judgment, should they be so advised.

II. Failure to State an Excessive Force Claim Against Lynch

Lynch argues that the excessive force claim against him should be dismissed because the

pro se litigant identified the wrong constitutional right. Lynch’s argument reads, in toto, as follows:

Plaintiff’s claim of cruel and unusual punishment must be dismissed

because the Eighth Amendment only applies to those convicted of a

crime and Plaintiff was a pre-trial detainee at the time of the alleged

incident.

(Lynch Br. at 7). Lynch is correct that Plaintiff erred by invoking the Eighth Amendment because,

as Plaintiff was a pretrial detainee during the events in question, the claim would be governed by

the Fourteenth Amendment. See Gerard v. City of New York, 843 F. App’x 380, 382 (2d Cir. 2021)

(“The Fourteenth Amendment’s ‘Due Process Clause protects a pretrial detainee from the use of

excessive force that amounts to punishment.’” (quoting Kingsley v. Hendrickson, 576 U.S. 389,

397 (2015))); Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). However, given the special

solicitude granted to pro se litigants and the liberality with which the Court must view their

pleadings, McPherson, 174 F.3d at 280, the fact that Plaintiff invoked the Eighth as opposed to the

Fourteenth Amendment is no basis to dismiss the claim, see, e.g., Saidock v. Carrington-McClain,

No. 19-CV-1319, 2019 WL 4450678, at *3 (D. Conn. Sept. 16, 2019) (analyzing pro se pretrial

detainee’s claim under the Fourteenth Amendment although the plaintiff sought relief under the

Eighth Amendment); Hester-Bey v. Ford, No. 13-CV-4656, 2015 WL 4910570, at *3 (E.D.N.Y.

June 8, 2015) (evaluating pro se plaintiff’s claim as one under Bivens v. Six Unknown Agents of

the Federal Bureau of Narcotics, 403 U.S. 388 (1971), despite the fact that the plaintiff invoked

42 U.S.C. § 1983 and the Eighth Amendment), adopted by 2015 WL 4910576 (E.D.N.Y. Aug. 13,

2015). Moreover, the Supreme Court case Lynch cites in support of his argument—Graham v.

Connor, 490 U.S. 386 (1989)—explains simply that when one complains about force used during

an arrest or other “seizure,” the claim is governed by the Fourth Amendment. That principle is

inapplicable here. (See Lynch Br. at 7).

Consequently, Lynch’s argument that Plaintiff’s excessive force claim against him should

be dismissed because Plaintiff failed to invoke the Fourteenth Amendment is denied.

III. Failure to Plead Gurrieri’s Personal Involvement in a Constitutional Violation

The Matis Defendants argue that Gurrieri must be dismissed because Plaintiff failed to

plead facts establishing Gurrieri’s personal involvement in the alleged use of excessive force.

(Matis Br. at 11). As a fundamental prerequisite, “[t]o establish a § 1983 claim, a plaintiff must

show the defendants’ personal involvement in the alleged constitutional violation.” Boley v.

Durets, 687 F. App’x 40, 41 (2d Cir. 2017) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir.

1994)). Failing to allege that a defendant was personally involved in, or responsible for, the

conduct complained of renders a complaint “fatally defective on its face.” Alfaro Motors, Inc. v.

Ward, 814 F.2d 883, 886 (2d Cir. 1987) (internal quotation marks omitted). Moreover, as recently

emphasized by the Second Circuit, the fact that a defendant is a supervisor is not enough to impute

personal involvement onto that actor; rather, even “supervisory liability requires that the

‘defendant, through the official’s own individual actions, has violated the Constitution.’” Williams

v. Novoa, No. 19-CV-11545, 2021 WL 431445, at *6 (S.D.N.Y. Feb. 5, 2021) (quoting Tangreti

v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020)); see also Greene v. Sampson, No. 18-CV-6103,

2021 WL 355477, at *4 (S.D.N.Y. Feb. 2, 2021).

In order to establish Gurrieri’s participation in the use of excessive force, Plaintiff must

either plead facts establishing direct participation or that Gurrieri “failed to intervene to protect the

plaintiff from a violation of his constitutional rights by another person.” McGrier v. City of New

York, No. 16-CV-5667, 2019 WL 1115053, at *10 (S.D.N.Y. Mar. 11, 2019), aff’d, No. 19-2665,

2021 WL 716993 (2d Cir. Feb. 24, 2021); see also Snoussi v. Bivona, No. 05-CV-3133, 2010 WL

3924255, at *3 (E.D.N.Y. Feb. 17, 2010), adopted by 2010 WL 3924683 (E.D.N.Y. Sept. 29,

2010). Bearing this in mind, “if Plaintiff were to state . . . the names of each person who was

present during the assault[], and that these [D]efendants either directly participated in the excessive

force or failed to intervene, such allegations would be sufficient to allege personal involvement.”

Green v. Garcia, No. 18-CV-1745, 2020 WL 1467359, at *5 (S.D.N.Y. Mar. 25, 2020) (alterations

and emphasis in original, internal quotation marks omitted). Gurrieri’s presence in the Complaint

is limited to the fact that he—along with Lynch, Matis, and Torres—opened Plaintiff’s cell, rushed

toward him with their fists up, and “punch[ed] at [him].” (Compl. at 5). This allegation places

Gurrieri in the cell, alongside the individuals purportedly beating Plaintiff to tears; reading the

Complaint liberally and granting Plaintiff every inference, the Court concludes that Plaintiff has

alleged Gurrieri’s personal involvement insofar as Gurrieri failed to intervene in the use of

excessive force. See Holland v. City of New York, 197 F. Supp. 3d 529, 549 (S.D.N.Y. 2016)

(outlining elements of failure to intervene claim).

The Matis Defendants’ motion on this basis is, accordingly, denied.

IV. The Qualified Immunity Doctrine

Both Lynch and the Matis Defendants argue that the case should be dismissed against them

on the basis of qualified immunity. The Matis Defendants posit that they are entitled to qualified

immunity because Plaintiff pled that he was “misbehaving and clearly a danger to himself and to

the facility” and he “admits to kicking the gate and refusing to stop.” (Matis Br. at 13). The Matis

Defendants maintain that these facts justify any use of force—whether excessive or not—because

they had to subdue Plaintiff, protect him from himself, and prevent damage to the cell. (Id. at 13-

14). Lynch insists also that he is entitled to qualified immunity because any force he used reacted

to Plaintiff’s “damaging jail property, disturbing the order of the facility, and/or threatening

physical harm to others.” (Lynch Br. at 7). Lynch argues that, on these facts, no reasonable officer

would have known that the use of excessive force violated a clear constitutional right. (Id.).

“[Q]ualified immunity protects government officials from liability for civil damages unless

a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and

(2) that the right was clearly established at the time of the challenged conduct.” Dixon v. von

Blanckensee, 994 F.3d 95, 101 (2d Cir. 2021) (quoting McGowan v. United States, 825 F.3d 118,

124 (2d Cir. 2016) (alteration in original)). “A Government official’s conduct violates clearly

established law when, at the time of the challenged conduct, the contours of a right are sufficiently

clear that every reasonable official would have understood that what he is doing violates that right.”

Almighty Supreme Born Allah v. Milling, 876 F.3d 48, 59 (2d Cir. 2017) (quoting Ashcroft v. al-

Kidd, 563 U.S. 731, 741 (2011)).Whether a right is “[c]learly established . . . cannot be defined at

a high level of generality, but must be particularized to the facts of the case, so as to give a

reasonable officer fair notice that” their conduct is unlawful. Gerard v. City of New York, 843 F.

App’x 380, 382 (2d Cir. 2021) (internal citations and quotation marks omitted). This is especially

so “in the excessive force context because ‘[i]t is sometimes difficult for an officer to determine

how the relevant legal doctrine . . . will apply to the factual situation the officer confronts.’” Id.

(quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015) (alterations in original)). This standard “do[es]

not require a case directly on point for a right to be clearly established; nevertheless, existing

precedent must have placed the statutory or constitutional question beyond debate.” Sloley v.

VanBramer, 945 F.3d 30, 40 (2d Cir. 2019) (internal quotation marks omitted)). As “qualified

immunity is not only a defense to liability, but also provides immunity from suit . . . the defendant’s

entitlement to qualified immunity should be resolved at the earliest possible stage in litigation.”

Lynch v. Ackley, 811 F.3d 569, 576 (2d Cir. 2016) (internal quotation marks omitted).

There is no doubt that well before January 9, 2020, the date of the subject incident, “the

law was clearly established that [Plaintiff] had a constitutional right to be free from excessive

force.” Szabo v. Parascandolo, No. 16-CV-3683, 2019 WL 481925, at *7 (E.D.N.Y. Feb. 7, 2019)

(quoting Henry v. Dinelle, 929 F. Supp. 2d 107, 128 (N.D.N.Y. 2013) (alteration in original)),

appeal dismissed sub nom. Szabo v. Cascone, 799 F. App’x 77 (2d Cir. 2020). So the question,

then, is whether Plaintiff pled facts establishing that Lynch and the Matis Defendants violated that

constitutional right in this scenario. The Court concludes that he has done so.

When a pretrial detainee presses a claim for excessive force, he need “show only that the

force purposely or knowingly used against him was objectively unreasonable.” Kingsley, 576 U.S.

at 396-97. The analysis “turns on the facts and circumstances of each particular case,” and “[a]

court must make this determination from the perspective of a reasonable officer on the scene . . .

.” Id. at 397 (internal quotation marks omitted). “A court must also account for the legitimate

interests that stem from [the government’s] need to manage the facility in which the individual is

detained, appropriately deferring to policies and practices that” jail officials believe are needed to

maintain order, discipline, and security. Id. (alteration in original, internal quotation marks

omitted). Factors speaking to reasonableness include: “the relationship between the need for the

use of force and the amount of force used; the extent of the plaintiff’s injury; any effort made by

the officer to temper or to limit the amount of force; the severity of the security problem at issue;

the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.” Id.

(internal quotation marks omitted); see also Quinones v. Rollison, No. 18-CV-1170, 2020 WL

6420181, at *4 (S.D.N.Y. Nov. 1, 2020).

Here, Plaintiff had a tantrum and kicked his cell gate. (Compl. at 5). In response, Plaintiff

was punched, picked up and slammed into the floor, and beaten after having his hands restrained.

(Id. at 5-6). Accepting Plaintiff’s version of events and granting him every inference, the force

used by Lynch, Matis, and Torres—in Gurrieri’s presence—would be unreasonable. See Ben-

Reuben v. Westchester Cty., No. 17-CV-9156, 2019 WL 1406868, at *3 (S.D.N.Y. Mar. 28, 2019)

(noting that “the use of entirely gratuitous force is unreasonable and therefore excessive” (internal

quotation marks omitted)); see also Tracy v. Freshwater, 623 F.3d 90, 99 n.5 (2d Cir. 2010).

In light of the above, the motions to dismiss on the basis of qualified immunity are denied;

the parties may, however, renew this argument at summary judgment.

V. State Law Claims

The final argument, advanced by Lynch, is that the Court should dismiss Plaintiff’s state

law claims for failure to comply with the notice of claim requirements set by New York General

Municipal Law.7 (Lynch Br. at 7-8).

7 Lynch also argued that the Court should decline to exercise supplemental jurisdiction over Plaintiff’s state

law claims because “dismissal of Plaintiff’s federal claims deprives this Court of supplementary jurisdiction

over Plaintiff’s remaining state and local law claims.” (Lynch Br. at 7 (internal quotation marks omitted)).

Given the fact that the Court has not dismissed Plaintiff’s claims under federal law, the Court need not and

does not address this branch of Lynch’s argument.

Without regard to the notice of claim requirements, Plaintiffs only reference to relief under

New York State law is a single reference to New York Correction Law § 137(5). (Compl. at 4).

That provision provides, inter alia, that “[n]o inmate in the care or custody of the department shall

be subjected to degrading treatment, and no officer or other employee of the department shall

inflict any blows whatever upon any inmate, unless in self defense, or to suppress a revolt or

insurrection.” N.Y. Corr. Law § 137(5). Assuming that this provision even applies to Sullivan

County, see N.Y. Corr. Law § 2(1) (“‘Department’ means the state department of corrections and

community supervision”), there is no right of action under this statute, Jones v. State, 98 N.Y.S.3d

366, 369 (App. Div. 2019), appeal dismissed, 127 N.E.3d 308 (N.Y. 2019).

Accordingly, Plaintiffs lone claim against Lynch under state law—violation of N.Y. Corr.

Law § 137(5)—is dismissed because that law does not create a private right of action.

CONCLUSION

For the foregoing reasons, that Matis Defendants’ motion is DENIED and Lynch’s motion

is GRANTED IN PART. Both Lynch and the Matis Defendants are directed to file their Answers

within fourteen (14) days of the date of this Memorandum Opinion and Order. The Court will issue

an Initial Pretrial Conference Order and set a conference date in short order.

The Clerk of the Court is respectfully directed to terminate the motion sequences pending

at Doc. 34 and Doc. 39, and to mail a copy of this Memorandum Opinion and Order to Plaintiff.

SO ORDERED:

Dated: White Plains, New York

May 20, 2021 (Ray

PHILIPM.HALPERN =——<“i‘“CSCS

United States District Judge

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