McDaniel v. Department of Correction

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

CURTIS A. McDANIEL,

Plaintiff,

19 Civ. 8735 (KPF) (RWL)

-v.-

OPINION AND ORDER

THE CITY OF NEW YORK, SHIRLONDA

ADOPTING REPORT AND

GOLDEN, Shield No. 5890, IRWIN

RECOMMENDATION

DELEON, Shield No. 1284, CAPTAIN

SONIA MANZO, Shield No. 1360,

Defendants.

KATHERINE POLK FAILLA, District Judge:

Pro se plaintiff Curtis McDaniel brings this action pursuant to 42 U.S.C.

§ 1983 alleging that while he was a pretrial detainee at Rikers Island,

Defendants were deliberately indifferent to his safety and certain correction

officers used excessive force against him, all in violation of his constitutional

rights. Defendants have moved for summary judgment pursuant to Rule 56 of

the Federal Rules of Civil Procedure. Now pending before this Court is the

January 21, 2022 Report and Recommendation issued by United States

Magistrate Robert W. Lehrburger (the “Report” (Dkt. #86), copy attached),

which recommends that Defendants’ motion be granted in full.

The Court has examined the Report and notes that no party has objected

within the fourteen-day period from its service, as provided by 28 U.S.C.

§ 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. For the

reasons set forth below, the Court finds no error in the Report and adopts it in

its entirety.

BACKGROUND

The Court incorporates by reference the recitation of the facts provided in

the Report, to which no party objects. (See Report 2-3).

On September 20, 2019, Plaintiff filed the underlying complaint in this

matter. (Dkt. #2). On November 22, 2019, this matter was referred to Judge

Lehrburger for general pretrial supervision. (Dkt. #6, 9). On May 28, 2020,

Plaintiff filed an Amended Complaint, which is the operative pleading in this

matter. (Dkt. #29). Three of the Defendants, the City of New York, Shirlonda

Golden, and Sonia Manzo, answered the Amended Complaint on July 24, 2020.

(Dkt. #34). On December 14, 2020, Defendant Irwin DeLeon filed his answer to

the Amended Complaint. (Dkt. #48). Fact discovery concluded on March 25,

2021. (Dkt. #58). Thereafter, on May 10, 2021 Defendants filed a motion for

summary judgment (Dkt. #63-68), which motion the Court referred to Judge

Lehrburger for a report and recommendation (Dkt. #69). Plaintiff filed an

opposition to Defendant’s motion on July 9, 2021. (Dkt. #73-76). Defendants

filed their reply brief on August 28, 2021. (Dkt. #80).

On January 21, 2022, Judge Lehrburger issued the Report,

recommending that the Court grant Defendants’ motion for summary

judgment. (Dkt. #86). The deadline for the parties to file objections to the

report was February 4, 2022. (See Report 24-25). To date, no objections have

been filed.

DISCUSSION

A court may accept, reject, or modify, in whole or in part, the findings or

recommendations made by a magistrate judge. See 28 U.S.C. § 636(b)(1); Fed.

R. Civ. P. 72(b); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). A court may

also accept those portions of a report to which no specific, written objection is

made, as long as the factual and legal bases supporting the findings are not

clearly erroneous. See Ramirez v. United States, 898 F. Supp. 2d 659, 663

(S.D.N.Y. 2012) (citation omitted). A magistrate judge’s decision is clearly

erroneous only if the district court is “‘left with the definite and firm conviction

that a mistake has been committed.’” Easley v. Cromartie, 532 U.S. 234, 242

(2001) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

“A party’s failure to object to a report and recommendation, after receiving clear

notice of the consequences of such a failure, operates as a waiver of the party’s

right both to object to the report and recommendation and to obtain appellate

review.” Grady v. Conway, No. 11 Civ. 7277 (KPF) (FM), 2015 WL 5008463, at

*3 (S.D.N.Y. Aug. 24, 2015) (citing Frank v. Johnson, 968 F.2d 298, 300 (2d

Cir. 1992)).

As neither party has submitted objections to the Report, review for clear

error is appropriate. See Phillips v. Reed Grp., Ltd., 955 F. Supp. 2d 201, 211

(S.D.N.Y. 2013). The Court has reviewed the Report and finds that its

reasoning is sound and that it is grounded in fact and law. More specifically,

the Court agrees with the Report’s conclusions that: (i) Plaintiff failed to provide

any evidence in support of his claim for municipal liability (Report 11-13);

(ii) neither Manzo nor Golden had personal involvement in the alleged

deprivations of Plaintiff’s constitutional rights, as necessary to give rise to

liability under Section 1983 (id. at 13-15); (iii) Plaintiff failed to establish that

the circumstances of his incarceration posed a substantial risk of serious harm

or that Defendants were deliberately indifferent to such a risk, both of which

are necessary elements for a claim for deliberate indifference to Plaintiff’s safety

(id. at 15-19); (iv) the record does not contain any evidence suggesting that

Defendants applied excessive force to Plaintiff (id. at 19-22); and (v) Plaintiff’s

negligence claim fails because Defendants did not breach their duty to protect

Plaintiff from impending harm (id. at 22-24). Having reviewed the record, the

Court finds no clear error and adopts the Report in its entirety.

Furthermore, because the Report explicitly states that “[f]ailure to file

timely objections will result in waiver of objections and preclude appellate

review” (Report 25), both parties’ failure to object operates as a waiver of

appellate review, see Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir.

2008) (citing Small v. Sec’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.

1989) (per curiam)).

CONCLUSION

The Court agrees completely with Judge Lehrburger’s well-reasoned

Report and hereby adopts its reasoning by reference. Accordingly, it is ordered

that summary judgment be GRANTED in Defendants’ favor in its entirety.

The Clerk of Court is directed to terminate all pending motions, adjourn

all remaining dates, and close this case. The Clerk of Court is further directed

to mail a copy of this Opinion and Order to Plaintiff at his address of record.

SO ORDERED.

Dated: February 11, 2022 ] hi ;

New York, New York Kathe fal Ciba

KATHERINE POLK FAILLA

United States District Judge

Case 1:19-cv-08735-KPF-RWL Document 86 Filef □□□ Page 1 0

| DOCUMENT

ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT □□□

SOUTHERN DISTRICT OF NEW YORK DATE FILED:__ 1/21/2022

wenn ne ee eee X

CURTIS A. MCDANIEL, :

: 19-CV-8735 (KPF) (RWL)

Plaintiff, :

- against - REPORT AND RECOMMENDATION

: TO HON. KATHERINE P. FAILLA

: SUMMARY JUDGMENT

THE CITY OF NEW YORK, et al.,

Defendants.

wenn ne ee eee X

ROBERT W. LEHRBURGER, United States Magistrate Judge.

Plaintiff Curtis McDaniel (“McDaniel”), proceeding pro se, filed this lawsuit against

the City of New York (the “City’) and several Correction Officers: Captain Sonia Manzo

(“Manzo”) and Officers Shirlonda Golden (“Golden”) and Irwin DeLeon (“DeLeon”)

(collectively, “Defendants”) pursuant to 42 U.S.C. § 1983. McDaniel alleges that while he

was incarcerated at Rikers Island, the Defendants were negligent and deliberately

indifferent to his safety and that certain correction officers used excessive force against

him. Defendants have moved for summary judgment pursuant to Rule 56 of the Federal

Rules Of Civil Procedure. (Dkt. 63.) For the following reasons, | recommend that

Defendants’ motion be GRANTED and that judgment be entered in favor of Defendants

and against McDaniel.

Case 1:19-cv-08735-KPF-RWL Document 86 Filed 01/21/22 Page 2 of 25

FACTS1

At all relevant times, McDaniel was a pretrial detainee housed at the Anna M. Kross

Correctional Facility (“AMKC”) at Rikers Island operated by the New York City Department

Of Correction. (SOF ¶¶ 1-2.) When he entered AMKC on March 9, 2019, McDaniel was

initially housed in the W18LB housing unit. (SOF ¶ 2.) Two weeks later, McDaniel was

transferred within AMKC to a housing unit called Dorm 2 Upper. (Compl. at 5; 2 SOF ¶ 8.)

On March 30, 2019, McDaniel had a physical altercation with N.O., another pretrial

detainee, while they were in an area where phone calls could be made.3 N.O. demanded

that McDaniel “sell” him his phone calls, which McDaniel refused to do. (Compl. at 5;

SOF ¶¶ 17-18.) N.O. followed McDaniel from the calling area to McDaniel’s bunk and

continued to “harass” and “threaten” him. (Compl. at 6; McDaniel Dep. at 91-92, 99.4)

N.O. insisted that the two go to the bathroom to fight. (McDaniel Dep. at 91; SOF ¶ 19.)

Initially McDaniel refused, but he ultimately went to the bathroom and engaged in some

1 Unless otherwise noted, the facts are drawn from Defendants’ Statement Of Undisputed

Facts Pursuant To Local Civil Rule 56.1 (“SOF”) (Dkt. 67), to which McDaniel provided

no counterstatement, Defendants’ supporting exhibits attached to the Declaration of Peter

W. Brocker (Dkt. 64), and the procedural docket. Additionally, mindful of the duty to

extend special solicitude to pro se litigants, the Court has conducted a thorough review

of the available record and considered McDaniel’s admissible evidence. The Court draws

all reasonable inferences and resolves all ambiguities in favor of McDaniel, the

nonmoving party. The consequences of McDaniel’s failure to file a Rule 56.1 statement

are discussed further below.

2 “Compl.” refers to Plaintiff’s Amended Complaint at Dkt. 29.

3 McDaniel does not name this individual in his Complaint, and the Defendants refer to

the individual by his initials.

4 “McDaniel Dep.” refers to the transcript of the deposition of Curtis McDaniel conducted

on March 24, 2021. (Dkt. 64, Ex. B.) The page numbers cited by the Court refer to the

internal pagination on the transcript.

2

Case 1:19-cv-08735-KPF-RWL Document 86 Filed 01/21/22 Page 3 of 25

kind of altercation with N.O.5 (Compl. at 6; SOF ¶¶ 19-25; McDaniel Dep. at 104.)

McDaniel left the bathroom and walked into the dayroom followed by N.O., who “started

screaming and yelling.” (Compl. at 7; SOF ¶ 26; McDaniel Dep. at 104.)

Another unidentified correction officer intervened by physically placing himself

between McDaniel and N.O.6 The correction officer attempted to restrain N.O. but was

unable to do so. N.O. lunged at McDaniel several times. Although McDaniel successfully

pushed N.O away, N.O. was able to grab McDaniel. The two began to fight, and N.O.

held McDaniel in a headlock. (Compl. at 3; SOF ¶¶ 27-34; McDaniel Dep. at 104-05.)

The unidentified correction officer requested back up, and another correction officer

entered the area and attempted to break up the fight. The officer grabbed McDaniel and

pulled him away from N.O.; however, when he realized that N.O. had McDaniel in

headlock, he ordered N.O. to release McDaniel, and N.O. complied. (Compl. at 3; SOF

¶¶ 38-41; McDaniel Dep. at 106.) The two men were separated, and McDaniel was

removed from the dayroom. (Compl. at 7; SOF ¶ 43; McDaniel Dep. at 106.)

McDaniel claims that as a result of the incident he suffered a pulled neck muscle

and injuries to his arm, head, and tongue. (Compl. at 8; McDaniel Dep. at 165.)

5 In the Amended Complaint, McDaniel alleges that “as I went in the bathroom [N.O.]

jumped in front of me and cut me on the arm with some sharp rock or something.” (Compl.

at 6.) During his deposition, McDaniel testified that N.O. “reached in his waistband as if

he was going to grab a weapon or something, and I flinched at him, and I walked out of

the bathroom because I didn’t know what he had or what was going to happen.”

(McDaniel Dep. at 104.)

6 McDaniel identified this correction officer as Defendant DeLeon in the Amended

Complaint but testified as his deposition that he did not know which officer intervened and

ended the fight.

3

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PROCEDURAL HISTORY

On September 20, 2019, McDaniel filed his original complaint. (Dkt. 2.) McDaniel

filed the operative Amended Complaint on May 28, 2020, which additionally named

Defendants Golden and DeLeon.7 (Dkt. 29.)

The parties proceeded through discovery, which concluded on March 25, 2021.

(Dkt. 58.) On May 10, 2021, Defendants filed the instant motion for summary judgment.

(Dkt. 63.) Defendants filed a declaration and a memorandum in support of the motion as

well as a statement of undisputed material facts pursuant to the Southern District of New

York’s Local Civil Rule 56.1. (Dkts. 64, 65, 67.) Along with the supporting Declaration of

Peter Brocker, Defendants submitted several exhibits including: (1) the New York City

Department of Correction Inmate Movement History regarding McDaniel’s transfers within

Rikers Island; (2) excerpts of McDaniel’s deposition, dated March 24, 2021; (3) the New

York City Department of Correction New Admission Screening Report for McDaniel;

(4) the New York City Department of Correction Injury to Inmate Report for McDaniel,

dated March 30, 2019; and (5) a Notice of Personal Injury Claim Form submitted by

McDaniel on April 16, 2019.

On May 12, 2021, the case was referred to me for report and recommendation on

the Defendants’ motion for summary judgment. (Dkt. 69.) McDaniel filed an opposition

to Defendants’ motion on July 9, 2021 (Dkt. 73),8 and Defendants filed their reply on

7 Correction Officer Gordon, previously named in the first complaint, was not named in

the Amended Complaint. (Dkt. 29.)

8 McDaniel filed duplicate copies of his opposition at Dkts. 73 and 76.

4

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August 28, 2021. (Dkt. 80.) McDaniel did not submit a Rule 56.1 Statement of

Undisputed Facts.

LEGAL STANDARDS

The Court sets forth the relevant legal standards regarding summary judgment,

review of pro se pleadings, and the requirements for deliberate indifference and excessive

force claims under 42 U.S.C. § 1983.

A. Summary Judgment

“[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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct.

2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505,

2509-10 (1986). The Court’s task is not to resolve contested issues of fact but rather to

determine whether there exists any disputed issue of material fact. Donahue v. Windsor

Locks Board Of Fire Commissioners, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. U.S. Fire

Insurance Co., 804 F.2d 9, 11 (2d Cir. 1986). “‘A fact is material when it might affect the

outcome of the suit under governing law.’” Gorham-DiMaggio v. Countrywide Home

Loans, Inc., 421 F. App’x 97, 101 (2d Cir. 2011) (summary order) (quoting McCarthy v.

Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007)). A dispute “is ‘genuine’ … if

the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson, 477 U.S. at 248, 106 S. Ct. at 2510.

“The moving party bears the initial burden of demonstrating ‘the absence of a

genuine issue of material fact.’” Federal Deposit Insurance Corp. v. Great American

Insurance Co., 607 F.3d 288, 292 (2d Cir. 2010) (quoting Celotex, 477 U.S. at 323, 106

5

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S. Ct. at 2553). Once that burden is met, “the opposing party must come forward with

specific evidence demonstrating the existence of a genuine dispute of material fact.” Id.

(citing Anderson, 477 U.S. at 249, 106 S. Ct. at 2510).

“‘All evidence submitted on the motion is to be construed in the manner most

favorable to the nonmoving party.’” Okin v. Village Of Cornwall-On-Hudson Police

Department, 577 F.3d 415, 427 (2d Cir. 2009) (quoting Horvath v. Westport Library

Association, 362 F.3d 147, 151 (2d Cir. 2004)). However, “[t]o defeat a summary

judgment motion, the non-moving party ‘must do more than simply show that there is

some metaphysical doubt as to the material facts,’ and ‘may not rely on conclusory

allegations or unsubstantiated speculation.’” Federal Deposit Insurance Corp., 607 F.3d

at 292 (first quoting Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S.

574, 586, 106 S. Ct. 1348, 1356 (1986), then quoting Scotto v. Almenas, 143 F.3d 105,

114 (2d Cir. 1998)). While “disputes over facts that might affect the outcome of the suit

under the governing law will properly preclude the entry of summary judgment[,] [f]actual

disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at

248, 106 S. Ct. 2510; see also Knight, 804 F.2d at 11-12 (“‘the mere existence of factual

issues – where those issues are not material to the claims before the court – will not

suffice to defeat a motion for summary judgment’” (alteration omitted)) (quoting Quarles

v. General Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985) (per curium)).

Where, as here, a plaintiff is pro se, district courts must read his or her pleadings

“liberally and interpret them to raise the strongest arguments that they suggest.”

Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (internal quotation marks

omitted). Courts “are less demanding of [pro se] litigants generally, particularly where

6

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motions for summary judgment are concerned.” Jackson v. Federal Express, 766 F.3d

189, 195 (2d Cir. 2014). A pro se litigant thus is given “special solicitude” in responding

to a motion for summary judgment. Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010);

see also Knowles v. New York City Department Of Corrections, 904 F. Supp. 217, 220

(S.D.N.Y. 1995) (same). This solicitude, however, “does not relieve [the pro se litigant]

of his duty to meet the requirements necessary to defeat a motion for summary judgment.”

Jorgensen, 351 F.3d at 50 (internal quotation marks omitted).

B. Consequences of McDaniel’s Failure to Provide a Rule 56.1 Statement

Pursuant to Rule 56(c) of the Federal Rules Of Civil Procedure, a party asserting

that a fact cannot be, or is, genuinely disputed “must support the assertion by” either

“citing to particular parts of materials in the record” or “showing that the materials cited do

not establish the absence or presence of a genuine dispute, or that an adverse party

cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The

court need only consider the cited materials, although it may consider other materials in

the record. Fed. R. Civ. P. 56(c)(3). The Southern District of New York’s local rules

require the parties to submit enumerated statements of undisputed and disputed material

facts. Local Civil Rule 56.1(a)-(b). Consistent with Rule 56(c) of the Federal Rules of

Civil Procedure, “[e]ach statement by the movant or opponent . . . including each

statement controverting any statement of material fact, must be followed by citation to

evidence which would be admissible.” Local Civil Rule 56.1(d).

“Pro se litigants . . . are not excused from meeting the requirements of Local Civil

Rule 56.1” when a party moving for summary judgment provides notice to a pro se party

consistent with Local Civil Rule 56.2. Wali v. One Source Co., 678 F. Supp. 2d 170, 178

7

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(S.D.N.Y. 2009); see also Berry v. Marchinkowski, 137 F. Supp. 3d 495, 502 n.1 (S.D.N.Y.

2015) (“A pro se litigant is not excused from [Local Civil Rule 56.1]”). If the pro se party

fails to file a Rule 56.1 statement, a court may deem all factual allegations of the moving

party as true or, in the alternative, may “opt to conduct an assiduous review of the record.”

Battle v. Day Care Council, Local 205, DC 1707 Welfare Fund, No. 11-CV-4043, 2012

WL 3055574, at *1 n.1 (S.D.N.Y. July 26, 2012) (internal quotation marks and citation

omitted); see Brandever v. Port Imperial Ferry Corp., No. 13-CV-2813, 2014 WL 1053774,

at *3 (S.D.N.Y. March 13, 2014) (concluding that because the pro se plaintiff did not

submit a Rule 56.1 statement in response to the defendant's statement of facts, “there

[were] no material issues of fact”); see also Anand v. New York State Division of Housing

and Community Renewal, No. 11-CV-9616, 2013 WL 4757837, at *7 (S.D.N.Y. Aug. 29,

2013) (same).

While Defendants filed a Rule 56.1 statement, McDaniel did not. Nor did McDaniel

directly object to Defendants’ Rule 56.1 statement in whole or in part, despite the fact that

Defendants served McDaniel with the requisite Notice To Pro Se Litigants. (Dkt. 66.)

Instead, McDaniel submitted only an opposition to Defendants’ motion, addressing only

two of Defendants’ arguments and containing few factual contentions. The Court

therefore accepts as true Defendants’ factual assertions in its Rule 56.1 statement, but

also credits, for purposes of this motion, McDaniel’s factual assertions to the extent they

are based on personal knowledge and not unduly speculative.

C. Section 1983 Claims

To state a cause of action under 42 U.S.C. § 1983, “‘a plaintiff must allege that

some person acting under color of state law deprived him of a federal right.’” Ahlers v.

8

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Rabinowitz, 684 F.3d 53, 60-61 (2d Cir. 2012) (quoting Washington v. James, 782 F.2d

1134, 1138 (2d Cir. 1986)). Because § 1983 does not provide its own substantive right,

plaintiffs must identify the federally protected right that was allegedly violated. See

Gonzaga University v. Doe, 536 U.S. 273, 285, 122 S. Ct. 2268, 2276 (2002) (plaintiffs

cannot simply claim a violation of § 1983, because § 1983 “‘by itself does not protect

anyone against anything’”) (quoting Chapman v. Houston Welfare Rights Organization,

441 U.S. 600, 617, 99 S. Ct. 1905, 1916 (1979)). Accordingly, the plaintiff must show

that (1) the defendant acted under color of state law and that (2) as a result of the

defendant’s actions, the plaintiff suffered a denial of federal statutory rights or

constitutional rights or privileges. Annis v. County Of Westchester, 136 F.3d 239, 245

(2d Cir.1998). Additionally, “in all § 1983 cases, the plaintiff must prove that the

defendant’s action was a proximate cause of the plaintiff's injury.” Gierlinger v. Gleason,

160 F.3d 858, 872 (2d Cir. 1998); see also White v. City Of New York, No. 16-CV-6183,

2017 WL 3575700, at *5 (S.D.N.Y. Aug. 17, 2017).

Read liberally, the Amended Complaint asserts claims for deliberate indifference

to safety and excessive force. Because he was a pre-trial detainee at the time the incident

in question occurred, McDaniel’s 1983 claims arise under the Fourteenth Amendment.

See Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (“A pretrial detainee’s claims are

evaluated under the Due Process Clause because[ ] [p]retrial detainees have not been

convicted of a crime and thus may not be punished in any manner – neither cruelly and

unusually nor otherwise”) (internal quotation marks and citations omitted); Barnes v.

Harling, 368 F. Supp. 3d 573, 596 (W.D.N.Y. 2019) (“Under current Second Circuit law,

when a pretrial detainee plaintiff brings § 1983 claims alleging deliberate indifference,

9

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including claims alleging failure to protect or intervene,” a district court analyzes these

claims under the Fourteenth Amendment using the standard set forth in Darnell); Graham

v.Conner, 490 U.S. 386, 395 n.10, 109 S. Ct. 1865, 1871 n.10 (1989) (“the Due Process

Clause [of the Fourteenth Amendment] protects a pretrial detainee from the use of

excessive force that amounts to punishment”); Edrei v. Maguire, 892 F.3d 525, 533 (2d

Cir. 2018) (“pretrial detainees … rely on the constitutional guarantee of ‘due process’”).

1. Deliberate Indifference To Prisoner Safety - Failure To Intervene

To state a claim of deliberate indifference under the Due Process Clause of the

Fourteenth Amendment, a plaintiff’s allegations must satisfy a two-prong test comprised

of both objective and subjective standards. “[T]o 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. … There is no static test to determine

whether a deprivation is sufficiently serious; instead, the conditions themselves must be

evaluated in light of contemporary standards of decency.” Molina v. County of

Westchester, No. 16-CV-3421, 2017 WL 1609021, at *2 (S.D.N.Y. Apr. 28, 2017) (internal

citations and quotation marks omitted). To satisfy the second, subjective prong, “[a]

pretrial detainee must prove that the defendant-official acted intentionally … or recklessly

failed to act with reasonable care to mitigate the risk … even though the defendant-official

knew, or should have known, of the risk of harm.” Id. at *3 (internal quotations marks

10

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omitted); see also Darnell, 849 F.3d at 35 (same and referring to this subjective prong

as the “mens rea prong”).

2. Excessive Force

A claim of excessive force under the Fourteenth Amendment arises under the Due

Process Clause. See United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999). To prevail

on a Fourteenth Amendment excessive force claim, a pretrial detainee must show that

“the force purposely or knowingly used against him was objectively unreasonable.”

Kingsley v. Hendrickson, 576 U.S. 389, 396-97, 135 S. Ct. 2466, 2473 (2015). In contrast

to both the subjective and objective elements of the deliberate indifference claim, an

excessive force claim under the Fourteenth Amendment uses a wholly objective standard.

See id. at 397, 135 S. Ct. at 2473.

DISCUSSION

As discussed below, McDaniel’s claims should be dismissed on summary

judgment. McDaniel’s claims against the City should be dismissed as there is no

evidence of municipal liability. The claims against officers Manzo and Golden should be

dismissed because there is no evidence by which a reasonable juror could find Manzo

and Golden were personally involved in any actionable conduct or absence of conduct.

Further, there is no evidence to establish the objective element of either Section 1983

claim or the subjective element of the deliberate indifference claim.

A. No Evidence Of Municipal Liability

Municipalities cannot be vicariously liable under Section 1983 for their employees’

acts. Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S. Ct. 2018, 2037

(1978). Municipalities are only liable under Section 1983 for constitutional deprivations

11

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resulting from a governmental policy or custom. Id., 98 S. Ct. at 2037-8. A plaintiff may

demonstrate that such a policy or custom exists by introducing evidence of one of the

following: “(1) a formal policy officially endorsed by the municipality; (2) actions taken by

government officials responsible for establishing the municipal policies that caused the

particular deprivation in question; (3) a practice so consistent and widespread that,

although not expressly authorized, constitutes a custom or usage of which a supervising

policy-maker must have been aware; or (4) a failure by policymakers to provide adequate

training or supervision to subordinates to such an extent that it amounts to deliberate

indifference to the rights of those who come into contact with the municipal employees.”

Jones v. Westchester County, 182 F.Supp.3d 134, 158 (S.D.N.Y. 2016) (quoting Brandon

v. City of New York, 705 F.Supp.2d 261, 276–77 (S.D.N.Y. 2010)). To prevail on a Monell

claim, a plaintiff must also show that “there is a direct causal link between [the] municipal

policy or custom and the alleged constitutional deprivation” he suffered. City of Canton,

Ohio v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 1203 (1989).

The City is a municipality and therefore cannot be sued as a defendant absent a

viable Monell claim. McDaniel has not provided any evidence, let alone particularized

allegations, of any policies or widespread practices or customs related to the alleged

action, or inaction, of the correction officers. Nor has McDaniel provided any evidence,

or even claimed, that a need for better monitoring and training was otherwise obvious.

Rather, the facts as alleged and for which proof has been presented concern a specific

one-time incident involving a physical altercation between McDaniel and another inmate.

Those allegations are not enough to indicate a customary practice or existence of a

particular policy. See City Of Oklahoma City v. Tuttle, 471 U.S. 808, 841, 105 S. Ct. 2427,

12

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2445 (1985) (“Proof of a single incident of unconstitutional activity is not sufficient to

impose liability under Monell, unless proof of the incident includes proof that it was caused

by an existing, unconstitutional municipal policy, which can be attributed to a municipal

policymaker”). Despite naming the City as a defendant, the Amended Complaint does

not even address the City and contains no allegations connecting policymaking officials

with the alleged misconduct or alleging failure to train or supervise. Accordingly, the

Complaint fails to state an actionable civil rights claim against the City. Similarly, the

record is devoid of any evidence to support such a claim. Judgment should be granted

in favor of the City.

B. No Proof Of Personal Manzo Or Golden’s Personal Involvement

“It is well settled in this Circuit that personal involvement of defendants in alleged

constitutional deprivations is a prerequisite to an award of damages under § 1983.”

Johnson v. Newburgh Enlarged School District, 239 F.3d 246, 254 (2d Cir. 2001); see

also Lloyd v. City of New York, 43 F. Supp. 3d 254, 266 (S.D.N.Y. 2014) (“Personal

involvement is a question of fact and must be satisfied as to each individual defendant”).

Personal involvement can be established by showing that the individual “(1) directly

participated in the violation, (2) failed to remedy the violation after being informed of it by

report or appeal, (3) created a policy or custom under which the violation occurred,

(4) was grossly negligent in supervising subordinates who committed the violation, or

(5) was deliberately indifferent to the rights of others by failing to act on information that

constitutional rights were being violated.” Rahman v. Fisher, 607 F. Supp. 2d 580, 585

(S.D.N.Y. 2009) (quoting Iqbal v. Hasty, 490 F.3d 143, 152–153 (2d Cir.2007)). McDaniel

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has not presented evidence by which a reasonable juror could find the requisite personal

involvement of either Manzo or Golden.

McDaniel testified that Manzo was not present for the incident “until it was all over.”

(McDaniel Dep. at 98-99.) When asked whether Manzo had an opportunity to intervene

and stop the fight between him and N.O., McDaniel stated that he was “not sure.”

(McDaniel Dep. at 191.)

Similarly, Defendant Golden was not directly involved in the altercation between

McDaniel and N.O. Golden was stationed in the “bubble” – the housing area’s command

center, which is “[a]bout 25, 30 feet away” from where the incident occurred. (McDaniel

Dep. at 107.) McDaniel testified that he did not tell Golden that he was going to fight with

N.O. and that Golden did not have an opportunity to stop the fight. (McDaniel Dep. at

109, 191). McDaniel also indicated that Golden could not “particularly see out of the

bubble into the dorm per se.” (McDaniel Dep. at 107.)

McDaniel has presented no evidence that either Defendant Golden or Manzo

directly participated in the incident, failed to address a violation, developed or enforced a

problematic policy related to the violation, failed to supervise the correction officers who

allegedly committed the violation, or were in any other way deliberately indifferent to

McDaniel’s rights. McDaniel’s conclusory allegations are not sustainable. See Brown v.

Doe, No. 13-CV-8409, 2014 WL 5461815, at *8 (S.D.N.Y. Oct. 28, 2014) (“Conclusory

accusations regarding a defendant's personal involvement in the alleged violation,

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standing alone, are not sufficient”) (internal quotation marks omitted). Without more, the

claims against Manzo and Golden cannot stand and should be dismissed.

C. No Deliberate Indifference Claim

“Prison officials have a duty … to protect prisoners from violence at the hands of

other prisoners.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 1976 (1994)

(internal quotation marks omitted). Therefore, in certain circumstances, “[a]llowing an

attack on an inmate to proceed without intervening is a constitutional violation.” Rosen v.

City of New York, 667 F. Supp. 2d 355, 360 (S.D.N.Y. 2009) (internal quotation marks

omitted). However, “[n]ot every injury that a prisoner suffers at the hands of another

results in constitutional liability for the officials responsible for that prisoner's safety.”

Taylor v. City Of New York, No. 16-CV-7857, 2018 WL 1737626, at *11 (S.D.N.Y. March

27, 2018) (citing Farmer, 511 U.S. at 834, 114 S. Ct. 1970, 1977). McDaniel’s deliberate

indifference claims requires him to demonstrate (1) that the alleged violation was

“sufficiently serious” and (2) that the Defendants knowingly disregarded an excessive risk

to his health or safety. Defendants argue that McDaniel cannot establish either the

objective or subjective prong of his deliberate indifference claim. The Court agrees.

As an initial matter, McDaniel concedes that an unidentified Correction Officer, and

later Defendant DeLeon, did intervene during the altercation with N.O. (Compl. at 7.)

Presumably, McDaniel alleges that a Correction Officer should have intervened earlier to

prevent the fight. Defendants argue that they were not on notice of the incident prior to

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its occurrence and therefore could not have taken steps to intervene before the fight

began.

1. No Substantial Risk Of Serious Harm

To meet the objective prong for a claim based on failure to protect, McDaniel must

show that he was incarcerated under conditions that posed a substantial risk of serious

harm. Although there is not litmus test for what is considered “sufficiently serious” the

Second Circuit has explained that “prisoners may not be deprived of their basic human

needs—e.g., food, clothing, shelter, medical care, and reasonable safety—and they may

not be exposed to conditions that pose an unreasonable risk of serious damage to their

future health.” Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012) (internal brackets and

quotation marks omitted). For a failure to protect claim in the context of violence between

incarcerated individuals, “[a] substantial risk of serious harm can be demonstrated where

there is evidence of a previous altercation between a plaintiff and an attacker, coupled

with a complaint by plaintiff regarding the altercation or a request by plaintiff to be

separated from the attacker.” Gilmore v. Rivera, No. 13–CV–6955, 2014 WL 1998227,

at *3 (S.D.N.Y. May 14, 2014).

McDaniel argues that moving him to the Dorm 2 Upper exposed him to serious

risk, of which Defendants were or should have been aware. McDaniel alleges that

Defendants knew that members of a certain gang were targeting him and that they

purposely moved him to a housing unit in which many members of that gang were also

housed. (Compl. at 5.) McDaniel provides no details to support these allegations and

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does not offer any evidence showing that on the day in question, he was at substantial

risk of harm.

Upon his arrival to AMKC, McDaniel was asked if he knew of any reason why he

would be at risk or need special protection. He indicated that he did not. (SOF ¶¶ 3-5;

McDaniel Dep. at 77.) McDaniel asserts that in the moments leading up the altercation

with N.O., he informed the Correction Officer posted near the phone that “N.O. was angry,

and that he has some kind of psychological problem, and that he is stalking me and he’s

threatening me” and that he told N.O. in front of this officer that he did not want to engage

in a fight. (McDaniel Dep. at 84.) McDaniel does not know which Correction Officer he

spoke to because there were two officers on the floor – the unidentified Defendant Doe

and Defendant DeLeon. (McDaniel Dep. at 85.) Without more, McDaniel’s claim cannot

survive.

At no point either before or after his transfer to the new housing unit did McDaniel

report to Defendants that he was afraid of or targeted by N.O. (SOF ¶¶ 12-13; McDaniel

Dep. at 85.) Moreover, McDaniel had interacted with N.O. a few times before the March

30, 2019 altercation without any threats of violence or cause for concern. (SOF ¶¶ 15-

16; McDaniel Dep. at 90.)

McDaniel has not established a previous altercation with N.O. or that he

complained about N.O. or made a request to be separated from N.O. prior to the

altercation. McDaniel thus cannot meet the objective standard of establishing that he was

subject to a sufficiently serious risk of harm. See e.g., Ewers v. City Of New York, No.

17-CV-1116, 2021 WL 2188128, at *6 (S.D.N.Y. May 28, 2021) (granting summary

judgment to defendants on the first prong of plaintiff’s failure to protect claims because

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“Plaintiff has not provided any evidence that he and [the other inmate] engaged in prior

physical altercations that should have indicated to Officer Haywood that there was an

unreasonable risk of serious harm to plaintiff, as is required for plaintiff to succeed on his

failure to protect claim”); Leckie v. City Of New York, No. 18-CV-3917, 2021 WL 84234,

at *5 (E.D.N.Y. Jan. 11, 2021) (granting defendants’ summary judgment motion regarding

claims of deliberate indifference because plaintiff “does not demonstrate that he was

incarcerated in conditions that posed a substantial risk of harm, because prior to this

attack he testified that he did not fear for his life or safety; further, [plaintiff] had not

complained about his attackers, raised concerns about his safety in Housing Area 6B, or

otherwise provided notice to [defendants] that he was at a substantial risk of harm”);

Gilmore, 2014 WL 1998227 at *3 (dismissing claim as a matter of law where “nothing

suggests that [the Department of Corrections] or the other Defendants would have known

[prior to the incident] that Plaintiff himself was at risk”); Stewart v. Schiro, No. 13-CV-

3613, 2015 WL 1854198, at *7 (E.D.N.Y. Apr. 22, 2015) (dismissing failure to protect

claim where plaintiff had never been involved in an attack before and had no reason to

suspect that he would be attacked on the day of the incident).

2. No Deliberate Indifference

For the same, and additional reasons, McDaniel cannot establish the second

requirement that Defendants were deliberately indifferent. To assess the deliberate

indifference element, the question is whether an official “acted intentionally to impose the

alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that

the condition posed to the pretrial detainee even though the defendant-official knew, or

should have known, that the condition posed an excessive risk to health or safety.”

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Darnell, 849 F.3d at 35.

McDaniel has offered no evidence indicating that the Defendants either

intentionally or recklessly failed to act to mitigate the risk. In the context of prisoner safety,

a prison official’s failure to intervene violates a pretrial detainee’s Fourteenth Amendment

rights only where the officer acted with “deliberate indifference to a substantial risk of

serious harm” to the detainee. Farmer, 511 U.S. at 836, 114 S. Ct. at 1978 (internal

quotation marks omitted). “In the context of a failure to intervene claim, an officer displays

deliberate indifference when he has adequate time to assess a serious threat against an

inmate and a fair opportunity to protect the inmate without risk to himself, yet fails to

intervene.” Rosen, 667 F. Supp. 2d at 360 (internal quotation marks omitted). Here, the

undisputed facts show that Correction Officers responded to the altercation by directly

intervening between McDaniel and N.O., attempting to restrain N.O., requesting back up

assistance, and separating McDaniel from N.O. Nothing in the record indicates that the

Defendants failed to intervene in the incident, let alone that they did so with deliberate

indifference. Accordingly, the Defendants are entitled to summary judgment with respect

to McDaniel’s deliberate indifference claims.

D. No Excessive Force Claim

To make a successful excessive force claim under the Fourteenth Amendment,

McDaniel must show that the used against him was objectively unreasonable. Kingsley,

576 U.S. at 396-97, 135 S. Ct. at 2472-73. Factors bearing on the objective

reasonableness of the force 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

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issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively

resisting.” Edrei, 892 F.3d at 534 (internal quotation marks omitted).

The record here is devoid of any evidence of unreasonable use of force. The

parties agree that while McDaniel and N.O. were engaged in a physical altercation, a

correction officer pulled McDaniel away from N.O.9 Because N.O. had McDaniel in a

headlock, the correction officer pulling on McDaniel gave N.O. a direct order to release

McDaniel, which N.O. complied with, and then the officer separated the two men. (Compl.

at 7; SOF ¶¶ 38-41; McDaniel Dep. at 105-06.) Grabbing or pulling a detainee may

constitute a significant use of force and in certain cases may form the basis of a

constitutional violation. However, “if the force was applied in a good-faith effort to

maintain or restore discipline, it is unlikely to be repugnant to the conscience of mankind,

and will not amount to excessive force under Second Circuit law.” Quinones v. Rollison,

No. 18-CV-1170, 2020 WL 6420181, at *4 (S.D.N.Y. Nov. 1, 2020) (internal quotation

marks omitted).

McDaniel does not dispute that the sole purpose of the officer’s use of force was

to end the fight between the two detainees. In a prison setting, the use of force to restore

order can be reasonable. See e.g., Quinones, 2020 WL 6420181 at *4 (granting summary

judgment to Correction Officer who used pepper spray to break up a fight between

prisoners); Dobbins v. Ponte, No. 15-CV-3091, 2017 WL 3309726, at *5 (S.D.N.Y. Aug.

2, 2017) (granting summary judgment to the defendants as to the plaintiff's Fourteenth

9 It is unclear which Correction Officer allegedly used excessive force against McDaniel.

The Amended Complaint states that Defendant DeLeon pulled McDaniel away from N.O.,

but at his deposition, McDaniel indicated that he was not sure if it was Defendant DeLeon

or another officer. (Compl. at 7; McDaniel Dep. at 106.)

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Amendment excessive use of force claim because the plaintiff “was indisputably acting in

a belligerent and defiant manner”); Barnes v. Harling, 368 F. Supp. 3d 573, 593 (W.D.N.Y.

2019) (finding that a correction officer’s use of force to break up a fight did not rise to the

level of constitutional violation).

Defendants argue that given the circumstances, the officers’ actions were

reasonable and no reasonable juror could find otherwise. Noting the Court’s duty to “take

account of the legitimate interests in managing a jail” and deferring to “policies and

practices needed to maintain order and institutional security is appropriate,” the Court

agrees that the minimal force used to separate McDaniel from N.O. was objectively

reasonable. Frost v. New York City Police Department, 980 F.3d 231, 252 (2d Cir. 2020)

(quoting Kingsley, 576 U.S. at 399-400, 135 S. Ct. at 2474).

Additionally, McDaniel has presented no evidence that his injury was incurred

while an officer was separating him from N.O. as compared to when N.O. first put

McDaniel in a headlock. But even if he had, the injury alleged by McDaniel is de minimis.

McDaniel alleges that the officer’s use of force led him to suffer a pulled neck muscle.

The Second Circuit has clearly ruled, however, that “[n]ot every push or shove, even if it

may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's

constitutional rights.” Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997). Rather,

plaintiffs must “show that the harm incurred was more than de minimis.” Berry v. City Of

New York Department Of Corrections., No. 12-CV-7819, 2014 WL 2158518, at *5

(S.D.N.Y. May 22, 2014), aff'd sub nom., 622 F. App’x 10 (2d Cir. 2015); see also Lynch

v. City Of New York, 952 F.3d 67, 77 (2d Cir. 2020) (“there is a de minimis level of

imposition with which the Constitution is not concerned”) (internal quotation marks

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omitted); Lewis v. Huebner, No. 17-CV-8101, 2020 WL 1244254, at *5 (S.D.N.Y. Mar. 16,

2020) (“claims for excessive force under the Fourteenth Amendment must involve force

that is either more than de minimis or repugnant to the conscience of mankind”) (internal

quotation marks omitted).

Based on the foregoing, a reasonable juror could not conclude that the officers

used excessive force while intervening in the altercation between McDaniel and N.O.

Consequently, McDaniel’s excessive force claim cannot proceed.

E. Qualified Immunity

Defendants argue that if claims against Defendant DeLeon survive summary

judgment, he is nonetheless entitled to qualified immunity. Defendants have established

that there is insufficient evidence to establish either deliberate indifference or excessive

force. They are entitled to summary judgment on that basis. Accordingly, the Court need

not address the issue of qualified immunity.

F. Negligence Claim

In addition to the Section 1983 claims, McDaniel asserts a state law negligence

claim; i.e., that Defendants neglected their duty to protect him from N.O. (Compl. at 8-9.)

This claim too should be dismissed on the merits.10

10 Where, as here, a federal court dismisses all federal claims, the court may exercise its

discretion to decline supplemental jurisdiction and dismiss remaining state law claims

without prejudice. See 28 U.S.C. § 1367(c)(3); see also Blackrock Balanced Capital

Portfolio v. HSBC Bank USA, National Association, 95 F. Supp. 3d 703, 708-09 (S.D.N.Y.

2015) (district court “may decide to refuse to exercise supplemental jurisdiction if ... the

district court has dismissed all other claims over which it had federal jurisdiction....”);

Rosario v. International Auto Mall & Leasing Center, Inc., No. 12-CV-4059, 2013 WL

1144893, at *4 (S.D.N.Y. March 19, 2013) (dismissing state claim where the court “has

no independent basis for federal jurisdiction”). Conversely, the Court may exercise its

discretion to resolve the state court claims. See Carlsbad Technology, Inc. v. HIF Bio,

Inc., 556 U.S. 635, 639, 129 S. Ct. 1862, 1866 (2009) (“A district court's decision whether

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Under New York law, plaintiffs alleging negligence must establish “(1) the

existence of a duty on defendant’s part as to plaintiff; (2) a breach of this duty; and

(3) injury to the plaintiff as a result thereof.” Sackin v. TransPerfect Global, Inc., 278 F.

Supp. 3d 739, 747 (S.D.N.Y. 2017) (quoting Caronia v. Philip Morris USA, Inc., 715 F.3d

417, 428 (2d Cir. 2013)). “[I]t is well-established in New York that when the State

assumes physical custody of inmates or detainees, who cannot protect and defend

themselves in the same way as those at liberty can, the State owes a duty of care to

safeguard those individuals from harm.” Maldonado v. Town Of Greenburgh, 460 F.

Supp. 3d 382, 400 (S.D.N.Y. 2020). That duty extends to attacks from other incarcerated

persons; however, it does not “render the State an insurer of inmate safety.” Sanchez v.

State Of New York, 99 N.Y.2d 247, 252 784 N.E.2d 675, 678(N.Y. 2002). Rather, “the

scope of the State’s duty to protect inmates is limited to risks of harm that are reasonably

foreseeable.” Id.

As discussed above in the context of McDaniel’s § 1983 claims, Defendants were

not on notice of any specific threat or impending harm to McDaniel, and N.O’s attack was

not reasonably foreseeable. Defendants thus did not breach their duty with respect to

McDaniel’s safety, and Defendants are entitled to summary judgment.11 See Case v.

to exercise that jurisdiction after dismissing every claim over which it had original

jurisdiction is purely discretionary”). Given the lack of merit to McDaniel’s claims, and that

the state law negligence claim can be disposed of for some of the same reasons as the

§ 1983 claims, the Court recommends resolving the state law claim as set forth above.

11 Defendants also contend that McDaniel’s negligence claim is deficient for failure to

comply with the strict requirements to file and plead a notice of claim against municipal

entities or their employees. See N.Y. Gen. Mun. Law § 50-i(1), 50-e. McDaniel

apparently did timely file a notice of claim and described the manner in which the claim

arose and the injuries claimed. (See Dkt. 64, Ex. E.) Although McDaniel did not allege

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Anderson, No. 16-CV-983, 2017 WL 3701863, at *24 (S.D.N.Y. Aug. 25, 2017) (“Although

a duty of care is owed by prison authorities with respect to the health and safety of their

charges, the State's duty to prisoners does not mandate unremitting surveillance in all

circumstances”) (internal citation and quotation marks omitted). Courts in this district

have dismissed negligence claims against prison staff in similar circumstances. See,

e.g., House v. City Of New York, No. 18-CV-6693, 2020 WL 6891830, at *21 (S.D.N.Y.

Nov. 24, 2020) (granting summary judgment in favor of defendants and dismissing

plaintiff’s negligence claim where Plaintiff failed to establish that his risk of harm was

reasonably foreseeable by prison staff); Kovalchik v. City Of New York, No. 09-CV-4546,

2014 WL 4652478, at *9 (S.D.N.Y. Sept. 18, 2014) (granting Defendant’s summary

judgment motion for section 1983 and negligence claims because “no jury could find that

reasonable care required the City to … provide greater supervision of [plaintiff]”).

CONCLUSION

For the foregoing reasons, I recommend that Defendants’ motion for summary

judgment be GRANTED in its entirety and that McDaniel’s claims be dismissed in their

entirety.

DEADLINE FOR OBJECTIONS AND APPEAL

Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal

Rules of Civil Procedure, the parties have fourteen (14) days to file written objections to

this Report and Recommendation. Such objections shall be filed with the Clerk of Court,

with extra copies delivered to the Chambers of the Honorable Katherine P. Failla, United

filing of the notice of claim in his complaint, the Court does not recommend granting

summary judgment on that basis.

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States Courthouse, 40 Foley Square, New York, New York 10007, and to the Chambers

of the undersigned, 500 Pearl Street, New York, New York 1007. FAILURE TO FILE

TIMELY OBJECTIONS WILL RESULT IN WAIVER OF OBJECTIONS AND

PRECLUDE APPELLATE REVIEW.

RESPECTFULLY SUBMITTED.

ROBERT W. LEHRBURGER

UNITED STATES MAGISTRATE JUDGE

Dated: January 21, 2022

New York, New York

Copies transmitted this date to all counsel of record. The Clerk’s Office is respectfully

directed to mail a copy of this Report and Recommendation to Plaintiff pro se and note

service on the docket:

Curtis McDaniel

#20A0242

Barehill Correctional Facility

Caller Box 20

181 Brand Road

Malone, NY 12953

25