# Ransom v. C.O. Bank

> District Court, S.D. New York · March 14, 2022

URL: https://www.frixlaw.com/law-library/cases/10339437

## Case

- **Court:** District Court, S.D. New York
- **Decided:** March 14, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT E DL OE CC #T :R ONIC ALLY FILED
SOUTHERN DISTRICT OF NEW YORK DATE FILED: 3/14/20 22
CHRISTOPHER RANSOM,
Plaintiff,
1:20-cv-10232 (MKV)
-against-
CORRECTION OFFICER BANKS, CAPTAIN OPINION AND ORDER
KELLY, CAPTAIN SMART, and CAPTAIN GRANTING DEFENDANTS’
ALEXIS, MOTION TO DISMISS
Defendants.
MARY KAY VYSKOCIL, United States District Judge:
Plaintiff Christopher Ransom brings this action pro se under 42 U.S.C. § 1983 against
Defendants Correction Officer Banks, Captain Kelly, Captain Smart, and Captain Alexis.
Plaintiff asserts excessive force and deliberate indifference claims, and an action under state law
for assault, arising from Plaintiff’s pretrial detention at the Manhattan Detention Complex
(“MDC”). Defendants have moved to dismiss the Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). [ECF No. 21] (“Mot. Dismiss”). For the reasons discussed herein,
Defendants’ Motion is granted.
BACKGROUND
I. Factual Background
On this motion, the Court is “constrained to accept as true the factual allegations
contained in the complaint and draw all inferences in plaintiff’s favor.” Glob. Network
Commc’ns, Inc. v. City of New York, 458 F.3d 150, 154 (2d Cir. 2006); Oakley v. Dolan, 980
F.3d 279, 283 (2d Cir. 2020). The following facts are taken from Plaintiff’s Complaint [ECF
No. 1] (“Compl.”).
On August 17, 2020, Plaintiff was held in an intake holding cell at the MDC along with
four other detainees. Compl. ¶¶ 1-2. While being processed for intake, Plaintiff was not “given
a mask dur[ing] the COVID-19 pandemic,” nor was he “able to physically social[ly] distance
[from] the other detainees.” Compl. ¶ 3. Correction Officer Banks, Captain Kelly, and Captain

Alexis (“the Correction Officer Defendants”) approached the holding cell to remove one of the
other detainees. Compl. ¶¶ 4-5. While opening the cell, a fight broke out between the
Correction Officer Defendants and two other detainees. Compl. ¶¶ 4-5. In an attempt to subdue
the other detainees, the Correction Officer Defendants sprayed “chemical agents” into the
holding cell. Compl. ¶ 6. Plaintiff, as well as other detainees present, inadvertently inhaled the
chemical agents. Compl. ¶¶ 6, 11. The Correction Officer Defendants “did not offer” Plaintiff
an opportunity to “decontaminate” himself; however, Plaintiff was later escorted to a medical
clinic by Defendant Captain Smart. Compl. ¶¶ 7-8. At the clinic, Captain Smart told Plaintiff
that he should decline medical examination in order to go back to his housing unit and sleep.
Compl. ¶ 9. A few days later, Plaintiff returned to the medical clinic with complaints of chest

pain, wheezing, and shortness of breath. Compl. ¶ 10.
II. Procedural Background
Plaintiff commenced this action on October 8, 2020, in the Eastern District of New York,
alleging that Defendants violated 42 U.S.C. § 1983 by using excessive force and being
deliberately indifferent to his medical needs. See Compl. ¶¶ 12, 14. He also asserted a cause of
action for assault under New York state law. See Compl. ¶ 13. The action was subsequently
transferred to the Southern District sua sponte under 28 U.S.C. § 1406(a), which provides for the
transfer of cases filed in the wrong venue. [ECF No. 7] (“Transfer Order”).1 This matter was
then assigned to this Court.
Plaintiff seeks $2 million in compensatory damages for the claims against Correction
Officer Banks, Captain Kelly, and Captain Alexis and $1 million for the claims against Captain

Smart. Compl. ¶¶ 17-18. Additionally, Plaintiff seeks $30,000 in punitive damages against each
Defendant. Compl. ¶ 19.
Defendants filed a motion to dismiss this action pursuant to Federal Rule of Civil
Procedure 12(b)(6) and a memorandum of law in support of their motion. [ECF No. 24] (“Defs.’
Mem. Law”). Plaintiff filed an opposition to Defendants’ motion. [ECF No. 26] (“Pl.’s. Opp.”).
The Defendants thereafter filed a reply. [ECF No. 30] (“Reply”). Months after this case was
fully briefed, Plaintiff filed a letter asking the Court to grant leave to file a sur-reply or “take a
close look at the cases that the defendants are using to support [their] arguments.” [ECF No. 33]
(“Pl.’s Letter”). The Court considers that letter and the arguments made in it in connection with
Defendants’ motion.

LEGAL STANDARD
To withstand dismissal for failure to state a claim pursuant to Rule 12(b)(6), a pleading
“must contain sufficient factual matter . . . 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)). Thus, a plaintiff must plead “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). Although the plausibility standard is “not akin to a ‘probability

1 The Eastern District of New York was not a proper venue for this action as all alleged conduct giving rise to
Plaintiff’s claims occurred at MDC in New York County, which is in the Southern District of New York, and all
Defendants are residents of New York County. See Transfer Order at 2; 28 U.S.C. § 112(b).
requirement,’ . . . it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Id. In deciding a motion to dismiss under Rule 12(b)(6), a court must accept factual allegations
as true and construe all reasonable inferences in the plaintiff’s favor. ECA, Local 134 IBEW
Joint Pension Tr. of Chi. v. JP Morgan Chase Co., 553 F.3d 187, 196 (2d Cir. 2009).

Where a plaintiff is proceeding pro se, courts liberally construe the complaint, which,
“however inartfully pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). This maxim applies with
particular force when a pro se plaintiff alleges a violation of his civil rights. Sealed Plaintiff v.
Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Thus, this Court affords Plaintiff “special
solicitude” by interpreting his complaint “to raise the strongest claims that it suggests.”
Hardaway v. Hartford Public Works Dep't, 879 F.3d 486, 489 (2d Cir. 2018) (quotation marks
omitted). However, a pro se plaintiff must still “allege ‘enough facts to state a claim to relief
that is plausible on its face.’” Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 387 (2d Cir.
2015) (quoting Twombly, 550 U.S. at 570).

DISCUSSION
Plaintiff’s pro se Complaint raises questions of federal and state law. The Court will first
address Plaintiff’s federal claims brought under 42 U.S.C. § 1983 for alleged violations of the
Fourteenth Amendment before addressing Plaintiff’s pendant state law claim for assault. For the
reasons that follow, the Court grants Defendants’ Motion to Dismiss; however, the Court will
grant Plaintiff the opportunity to amend his Complaint.
I. Plaintiff’s Section 1983 Claims Fail to State
a Claim Upon Which Relief Can be Granted
To state a claim under Section 1983, a plaintiff “must allege that (1) defendants are state
actors or acted under color of state law at the time of the challenged action, and (2) the
challenged action deprived him of a right secured by the Constitution or federal law.” Dawkins
v. Copeland, No. 17-CV-09926 (ER), 2020 WL 1529161, at *6 (S.D.N.Y. Mar. 31, 2020) (citing
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)). “Section 1983 itself creates no
substantive rights; it provides only a procedure for redress for the deprivation of rights

established elsewhere.” Id. (quoting Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993)).
Although Plaintiff’s pleadings allege violations under the Eighth Amendment, a pretrial
detainee’s claim for excessive force and deliberate indifference are evaluated under the Due
Process Clause of the Fourteenth Amendment, as “[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.” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). The Court therefore construes
Plaintiff’s Complaint as alleging constitutional claims under the Due Process Clause of the
Fourteenth Amendment. Specifically, the Court liberally construes Plaintiffs Complaint to allege
three constitutional claims: excessive force, deliberate indifference to medical needs, and
deliberate indifference to safety.

A. Excessive Force
“[T]he right of pretrial detainees to be free from excessive force amounting to
punishment is protected by the Due Process Clause of the Fourteenth Amendment.” United
States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999). To state a claim upon which relief could be
granted, “a pretrial detainee must show only that the force purposely or knowingly used against
him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015).2

2 Although the Kingsley decision resolved the standard to be applied at a jury trial, courts have
applied the same standard on a motion to dismiss. See e.g., Edrei v. Maguire, 892 F.3d 525, 534
(2d Cir. 2018); Holmes v. City of New York, No. 17cv3874, 2018 WL 4211311, at *5 (S.D.N.Y.
Sept. 4, 2018); Vargas v. New York City Dep't of Corr., No. 17 Civ. 2544 (JGK), 2018 WL
3392873, at *2 (S.D.N.Y. July 12, 2018).
While the Supreme Court left open the possibility that the reckless use of force may suffice to
give rise to a cognizable claim in certain cases, the Court has reiterated that the accidental or
negligent infliction of harm “is categorically beneath the threshold of constitutional due
process.” Id. at 396 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998)). The

objective reasonableness of any force used is analyzed using contextual factors such as 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.” Edrei, 892 F.3d at 534 (internal quotation marks
omitted). These non-exhaustive considerations “inform the ultimate Fourteenth Amendment
inquiry: whether the governmental action was rationally related to a legitimate governmental
objective.” Id. at 536. As relevant here, “wide ranging deference must be accorded to the
actions of prison officials in responding to an inmate confrontation.” McArdle v. Ponte, No.
17cv2806, 2018 WL 5045337 (S.D.N.Y. Oct. 17, 2018), at *4 (internal citations omitted).

Plaintiff alleges the Correction Officer Defendants used excessive force when they
sprayed him with a chemical agent. As Plaintiff states in both the Complaint and his opposition,
he was not the intended target of the spraying. Compl. ¶ 6; Pl.’s Opp. at 2, 4. Instead, the
Corrections Officer Defendants inadvertently sprayed him while subduing other detainees during
an altercation. Compl. ¶ 6; Pl.’s Opp. at 2, 4. Courts in this District have repeatedly found that
the secondhand inhalation of pepper spray does not typically give rise to a constitutional claim.
Holmes, 2018 WL 4211311, at *5 (S.D.N.Y. Sept. 4, 2018) (dismissing claim where plaintiff
conceded that the spray “was intended for other inmates” and therefore that “his exposure to
chemical spray was accidental or negligent” as a matter of law); McArdle, 2018 WL 5045337, at
*4 (dismissing claim where plaintiff’s allegations that he was an “innocent bystander in the
vicinity where pepper spray was deployed” to “de-escalate prisoner conflicts . . . suggest that his
exposure to pepper spray, while unfortunate, was at most negligent or accidental. Those
allegations are insufficient as a matter of law.”); Vargas, 2018 WL 3392873, at *3 (dismissing

claim where plaintiff alleged that that he was sprayed in the face when the officer-defendant
attempted to stop a fight between other inmates because the officer's conduct was “[a]t most”
negligent as a matter of law).
Plaintiff attempts to distinguish this case from others by alleging that he was exposed to
firsthand inhalation, rather than secondhand inhalation, because he was in the same holding cell
as the intended targets. Pl.’s Opp. at 2. The law does not draw such a distinction. Inhalation of
chemical spray is characterized as secondhand if the plaintiff is not the intended target,
regardless of the distance between the plaintiff and the target. See e.g., McArdle, 2018 WL
5045337, at *4 (characterizing inhalation as secondhand when plaintiff alleged that he was an
“innocent bystander in the vicinity where pepper spray was deployed”); Vargas, 2018 WL

3392873, at *3 (characterizing inhalation as secondhand when plaintiff alleged that he was
sprayed in the face when the officer-defendant attempted to stop a fight nearby).
Plaintiff’s supplemental letter filed after briefing was complete further argues that cases
on which Defendants rely—specifically McNair v. Ponte and Gutierrez v. City of New York—are
inapposite because they do not actually reach the merits of the excessive force claims. See Pl.’s
Letter at 1-2. Both McNair and Gutierrez resolved excessive force claims on motions for
summary judgment. The Court does not rely on the decisions in those cases here, where the
Court resolves whether, as a matter of law, Plaintiff’s allegations state a claim upon which relief
can be granted. The Court notes, however, that contrary to Plaintiff’s arguments, McNair and
Gutierrez held that the respective plaintiff’s excessive force claims failed because secondhand
inhalation of a chemical agent is generally not sufficient to support a claim for excessive force.
See Gutierrez v. City of New York, No. 13 Civ. 3502(JGK), 2015 WL 5559498, at *8 (S.D.N.Y.
Sept. 21, 2015) (“[T]he secondhand inhalation of pepper spray by persons who were not the

intended targets of the discharge does not typically give rise to a constitutional claim.”); McNair
v. Ponte, 17 Civ. 2976 (AT) (GWG), 2020 WL 3402815, at *10 (S.D.N.Y. June 18, 2020) (“[The
defendant’s] use of OC spray was aimed at the inmates fighting, and not at [the plaintiff], and
therefore an excessive force claim against [the defendant] would fail because ‘the secondhand
inhalation of pepper spray by persons who were not the intended targets of the discharge does
not typically give rise to a constitutional claim.’” (quoting Gutierrez, 2015 WL 5559498, at *8).
Plaintiff’s allegations at most suggest that his exposure to chemical spray was accidental
or negligent—not purposeful or knowing. Because such infliction of harm is “categorically
beneath the threshold of constitutional due process,” Kingsley, 576 U.S. at 396, Plaintiff fails to
state an excessive force claim upon which relief can be granted, and the claim must be dismissed.

B. Deliberate Indifference
The Court construes Plaintiff’s Complaint as alleging two separate constitutional
violations for deliberate indifference: one for deliberate indifference to his medical needs against
Captain Smart and another for deliberate indifference to his safety against the Correction Officer
Defendants.3 As Defendants observe, Plaintiff does not raise any arguments concerning a
deliberate indifference claim in his opposition to Defendants’ Motion to Dismiss. See Reply at 3.
Accordingly, the Court has the discretion to view the deliberate indifference claims as abandoned

3 Plaintiff’s Complaint is unclear about which facts and claims are apply to which Defendant. Best read, the
Complaint asserts separate claims against Captain Smart and the Correction Officer Defendants. However, even if
the Court construed the facts and claims to apply to all Defendants, the outcome would be the same.
by the Plaintiff. See e.g., Robinson v. Fischer, No. 09 Civ 8882(LAK)(AJP), 2010 WL 5376204,
at *10 (S.D.N.Y. Dec. 29, 2010) (“Federal courts have the discretion to deem a claim abandoned
when a defendant moves to dismiss that claim and the plaintiff fails to address in their opposition
papers defendants' arguments for dismissing such a claim.”); Masciotta v. Clarkstown Cent. Sch.

Dist., No. 14-CV-7128 (KMK), 2016 WL 4449660, at *28 n.10 (S.D.N.Y. Aug. 23, 2016)
(exercising discretion to dismiss claims on the merits, despite the pro se plaintiff’s opposition not
discussing the claims). Given Plaintiff’s pro se status, the Court, in its discretion, does not deem
the deliberate indifference claims as abandoned. Rather, the Court has reviewed the allegations
Plaintiff set forth in his Complaint and determines that they fail to state a claim.
1. Deliberate Indifference to Medical Needs
To adequately plead a Fourteenth Amendment Due Process claim, “a plaintiff alleging
failure to provide medical treatment to a prisoner must show ‘deliberate indifference to serious
medical needs.’” Man Zhang v. City of New York, No. 17 Civ. 5415 (JFK), 2018 WL 3187343,
at *7 (S.D.N.Y. June 28, 2018) (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1864 (2017)). Courts
analyze deliberate indifference to medical needs on a motion to dismiss under a two-prong

objective-subjective test. A plaintiff must first satisfy an objective prong, which requires the
alleged medical need to be “sufficiently serious, in the sense that a condition of urgency, one that
may produce death, degeneration, or extreme pain, exists.” Holmes, 2018 WL 4211311, at *6
(quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)). However, “[t]here is no settled,
precise metric to guide a court in its estimation of the seriousness of a prisoner’s medical
condition.” Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003). A court’s inquiry at the motion
to dismiss stage, therefore, “must be tailored to the specific circumstances of each case.” Smith
v. Outlaw, No. 15-CV-9961 (RA), 2017 WL 4417699, at *2 (S.D.N.Y. Sept. 30, 2017) (quoting
Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003)).
The second prong of a deliberate indifference to medical needs analysis is subjective and
requires a court to consider a defendant’s mental state. Under this prong, a pretrial detainee must
allege “that the defendant-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.” Valdiviezo v. Boyer, 752 F. App’x 29, 32
(2d Cir. 2018) (quoting Darnell, 849 F.3d at 35). A defendant’s “actions [must be] more than
merely negligent.” Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006).
Construing the alleged facts in Plaintiff’s favor, see White v. City of New York, No. 16
Civ. 6183 (LGS), 2017 WL 3575700, at *2 (S.D.N.Y. Aug. 17, 2017), Plaintiff claims that the
Defendants acted with deliberate indifference to his medical needs when Captain Smart failed to
offer to let him clean himself after he was exposed to second-hand spray and allegedly
subsequently instructed him to refuse a medical examination so he could return to his housing
unit and go to sleep. It is undisputed that the Plaintiff was brought to the medical clinic

following his exposure to the chemical agent. Compl. ¶ 8. Therefore, Plaintiff’s claim turns on
whether the delay before Plaintiff was taken to the medical clinic constituted deliberate
indifference.
A delay in treatment after being pepper sprayed may sometimes give rise to a cognizable
claim for denial of medical care. See, e.g., West v. City of New York, No. 13 Civ. 5155(PAE),
2014 WL 4290813, at *5 (S.D.N.Y. Aug. 28, 2014) (finding that a plaintiff stated a claim for
deliberate indifference where a named defendant “sprayed him with mace,” “left him in the
shower for approximately two hours” while he was “was coughing and struggling to breathe; his
skin was burning; and he may have been suffering complications related to his preexisting heart
murmur,” and where that defendant “delayed his access to medical care for the sole purpose of
extending his suffering.”). However, the Second Circuit “has reserved such a classification for
cases in which, for example, officials deliberately delayed care as a form of punishment; ignored
a life-threatening and fast-degenerating condition for three days; or delayed major surgery for

over two years.” Johnson v. Tucker, No. 17-CV-2739 (KMK), 2018 WL 2976022, at *5
(S.D.N.Y. June 12, 2018) (quoting Feliciano v. Anderson, 15-CV-4106 (LTS) (JLC), 2017 WL
1189747, at *13 (S.D.N.Y. Marc 30, 2017)).
Here, Plaintiff fails to allege with any specificity how long he was denied treatment or
whether the delay itself caused or exacerbated any injury. The only injuries Plaintiff alleges
were chest pain, wheezing, and shortness of breath as a “result of being sprayed by chemical
agents multiple times,” Compl. at ¶ 10, not as a result of any delay in providing access to
medical care. See Valdiviezo, 752 F. App’x at 32 (“When the basis for a prisoner’s claim ‘is a

temporary delay or interruption in the provision of otherwise adequate medical treatment,’ this
Court examines whether the delay itself created a risk of harm.” (quoting Carpenter, 316 F.3d at
185-86). In fact, Plaintiff affirmatively alleges that his symptoms developed “a few days later,”
and does not draw a plausible nexus between his symptoms and the delayed treatment following
his exposure to the chemical spray. Compl. ¶ 10. “[W]hile undoubtedly uncomfortable and
painful,” the “temporary effects of chemical spray,” without more, “are not serious medical
needs because they do not rise to the level of producing death, degeneration, or extreme pain.”
Holmes, 2018 WL 4211311, at *7. Because the Complaint fails to allege any symptoms beyond
the temporary effects of the chemical spray or any impact of the purposeful delay in access to
medical care, Plaintiff’s claim has not satisfied the objective prong for deliberate indifference.
The Court therefore grants Defendants’ Motion to Dismiss Plaintiff’s deliberate indifference to
medical needs claim.4
2. Deliberate Indifference to Safety
The Court liberally construes Plaintiff’s Complaint to allege that the Correction Officer
Defendants were deliberately indifferent when they did not provide him with a mask, and he was

unable to socially distance as a protective measure against COVID-19. “A pretrial detainee may
establish a § 1983 claim for allegedly unconstitutional conditions of confinement by showing
that the officers acted with deliberate indifference to the challenged conditions.” Darnell, 849
F.3d at 29. Courts analyze such claims at the motion to dismiss stage under a two-prong test
analogous to that used to evaluate a claim for deliberate indifference to medical needs. Thus, to
state a cognizable claim a plaintiff must plausibly allege “that the challenged conditions were
sufficiently serious,” and defendants “acted with at least deliberate indifference to the challenged
conditions.” Monroe v. Jouliana, No. 20 CV 6807 (VB), 2021 WL 6052162, at *3 (S.D.N.Y.
Dec. 20, 2021) (quoting Darnell, 849 F.3d at 29).
Under the objective prong, a pretrial detainee must plausibly allege the challenged

conditions, “either alone or in combination, pose[d] an unreasonable risk of serious damage to
his health.” Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013). 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.’” Monroe, 2021 WL 6052162
(quoting Darnell, 849 F.3d at 30). Of course, although “the Constitution does not mandate
comfortable prisons, prisoners are entitled to basic human needs—e.g., food, clothing, shelter,

4 Because Plaintiff's claim fails under the objective prong, the Court need not reach the second,
subjective prong of the deliberate indifference test.
medical care, and reasonable safety.” Randle v. Alexander, 960 F. Supp. 2d 457, 474-75
(S.D.N.Y. 2013).
The subjective prong for a deliberate indifference to safety claim is the same as for
deliberate indifference to medical needs. That standard requires that a pretrial detainee plausibly

allege “the defendant-official acted intentionally to impose the alleged conditions, or recklessly
failed to act with reasonable care to mitigate the risk that the condition posed . . . even though the
defendant-official knew, or should have known,” of the risk. Monroe, 2021 WL 6052162, at *2
(quoting Darnell, 849 F.3d at 35.) Mere negligence by the officials, however, cannot satisfy the
subjective prong. Id. (citing Darnell, 849 F.3d at 36).
Plaintiff’s Complaint off-handedly references the Correction Officer Defendants’ failure
to provide him a mask or give him the ability to socially distance himself from others during
intake. Compl. ¶ 3. Plaintiff does not appear to argue in his opposition that this perceived
failure was a basis for a separate cause of action in his Complaint. See Pl.s’ Opp. at 2-3 (arguing
that the Complaint “states a claim for excessive force.”). However, given that Plaintiff is

proceeding pro se the Court construes Plaintiff’s Complaint liberally to raise all claims possible,
including a possible deliberate indifference claim. See White, 2017 WL 3575700, at *2.
The pithy facts contained in Plaintiff’s Complaint—that the Correction Officer
Defendants did not give him a mask or allow for social distancing—nonetheless fail to give rise
to a plausible claim for deliberate indifference here. To be sure, “correctional officials have an
affirmative obligation to protect inmates from infectious disease,” Jolly v. Coughlin, 76 F.3d
468, 477 (2d Cir. 1996), and “COVID-19 stands with the roster of infectious diseases from
which correctional officials have an affirmative obligation to protect inmates.” Fernandez-
Rodriguez v. Licon-Vitale, 470 F. Supp. 3d 323, 349 (S.D.N.Y. 2020) (internal quotation marks
omitted). Some courts have found that “an inmate can face a substantial risk of serious harm in
prison from COVID-19 if a prison does not take adequate measures to counter the spread of the
virus.” Chunn v. Edge, 465 F. Supp. 3d 168, 200 (E.D.N.Y. 2020) (citing cases). But this case is
a far cry from the situations other courts have recognized may give rise to a cognizable deliberate

indifference to safety claim. Plaintiff fails to plead the necessary facts regarding the specific
conditions at the MDC to evaluate the risk of harm by not being provided with a mask. While
inadequate measures to protect detainees against COVID-19 can give rise to a claim for
deliberate indifference, that substantial risk of serious harm must be evaluated “in light of the
totality of the conditions and precautions taken at the prison.” Monroe, 2021 WL 6052162, at *9
(citing Chunn, 465 F. Supp at 200-01); see also Gil-Cabrera v. Dep't of Corr., 1:20-cv-09493
(LTS) (SDA), 2021 WL 5282620, at *4 (S.D.N.Y. Sept. 27, 2021) (serious harm from COVID-
19 plausibly alleged by a lack of social distancing and failure to screen new inmates). Thus, the
risk of serious harm to Plaintiff arising out of the failure immediately upon intake to provide a
mask and inability to socially distance must necessarily be considered alongside the related

conditions and precautions at the MDC. Further, Plaintiff does not allege in his Complaint a
COVID-related harm or risk of harm. Plaintiff’s claims are the type of vague allegations that
have not sustained a claim for a constitutional violation. See e.g., Monroe, 2021 WL 6052162, at
*4 (finding serious harm from COVID-19 not plausibly alleged by prison officials failing to
provide a detainee with a mask and there being “definitely a lack of social distancing,” even with
the inclusion of additional allegations of “definitely insufficient cleaning,” “the possibility that
[the facility] doesn’t have [the] antiviral filters that are required,” and a “risk of ‘numerous’
inmates exposed to COVID-19.”) Plaintiff’s allegations about indifference to his safety, to the
extent Plaintiff attempts to plead such a deliberate indifference claim in his Complaint, fails to
state a claim upon which relief can be granted and must be dismissed.5
II. Qualified Immunity
Defendants argue that the Complaint should be dismissed because Defendants are
protected by qualified immunity. Defs.’ Mem. Law at 12-19. Qualified immunity “protects

government officials from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted;
citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “In determining whether a right was
clearly established at the time defendants acted, [courts] examine whether the right was defined
with reasonable specificity; whether the decisional law of the Supreme Court and the applicable
circuit court supports its existence; and whether, under preexisting law, a defendant official
would have reasonably understood that his acts were unlawful.” Rodriguez v. Phillips, 66 F.3d
470, 476 (2d Cir. 1995) (citation omitted). Even where the official violates a clearly established
right, the defense of qualified immunity is nevertheless available if “it was ‘objectively

reasonable’ for [the official] to believe that his actions were lawful at the time of the challenged
act.” Cerrone v. Brown, 246 F.3d 194, 199 (2d Cir. 2001) (quoting Lennon v. Miller, 66 F.3d
416, 420 (2d Cir. 1995) (internal quotations omitted)).
Where, as here, there are no constitutional violations properly alleged, then the
Defendants are entitled to dismissal “not because of qualified immunity, but because [the
Defendants] did nothing wrong.” Quezada v. Roy, 14 Civ. 4056(CM), 2015 WL 5970355, at *10

5 Because Plaintiff's claim fails under the objective prong, the Court does not reach the second,
subjective prong of the deliberate indifference test.
(S.D.N.Y. Oct. 13, 2015) (quoting Dolson v. Vill. of Washingtonville, 382 F. Supp. 2d 598, 602
(S.D.N.Y. 2005)). Since the Court dismisses Plaintiff’s Section 1983 claims for failure to state a
claim, the Court does not reach the question of qualified immunity.
III. Plaintiff’s State Law Assault Claim Must Be Dismissed
for Failure to Comply with New York Notice of Claim Requirement
Plaintiff also alleges an assault claim under state law against the Correction Officer
Defendants. State law claims brought in federal court are subject to state procedural rules.
Felder v. Casey, 487 U.S. 131, 152 (1988) (“[F]ederal courts are constitutionally obligated to
apply state law to state claims.”). New York General Municipal Law provides that “[n]o
action . . . shall be prosecuted or maintained against the city . . . or any employee . . . unless a

notice of a claim shall have been made and served upon the city.” N.Y. Gen. Mun. Law § 50-
i(1). A plaintiff bringing tort claims against a municipality or its agent must plead “that (1) the
plaintiff has served the notice of claim; (2) at least thirty days have elapsed since the notice was
filed (and before the complaint was filed); and (3) in that time the defendant has neglected to or
refused to adjust or to satisfy the claim.” Hardy v. N.Y.C. Health & Hosp. Corp., 164 F.3d 789,
793 (2d Cir. 1999). “Notice of claim requirements are construed strictly by New York state
courts, and failure to abide by their terms mandates dismissal of the action for lack of subject-
matter jurisdiction.” Tullino v. City of N.Y., No. 15-CV-7106 (JMF), 2016 WL 2967847, at *3
(S.D.N.Y. May 19, 2016).
Here, there are no facts alleged to suggest that Plaintiff has completed a notice of his state

law claims as required by the statute. Defendants assert that the Plaintiff failed to serve a timely
notice of claim, an assertion to which the Plaintiff did not respond, let alone dispute. See Defs.’
Mem. Law at 20; Reply at 5. Although the Court must construe the pro se Plaintiff’s Complaint
liberally, the Court cannot exempt Plaintiff from the notice of claim requirements under New
York law. Accordingly, Plaintiff’s claim for assault under state law must be dismissed at this
stage.
IV. Leave to Amend
Leave to amend a complaint should be freely given “when justice so requires,” Fed R.
Civ. P. 15(a)(2), and pro se plaintiffs are generally given leave to amend a deficient complaint.

See Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795-96 (2d Cir. 1999). It is “within the
sound discretion of the district court to grant or deny leave to amend.” McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007).
The Second Circuit has indicated that district courts should not dismiss a complaint
“without granting leave to amend at least once when a liberal reading of the complaint gives any
indication that a valid claim might be stated.” Shabazz v. Bezio, 511 F. App’x 28, 31 (2d Cir.
2013). Because Plaintiff has not previously had an opportunity to amend his complaint, and in
light of Plaintiff’s pro se status, Plaintiff is granted leave to amend to address the deficiencies
identified in this opinion.
* * *

The Court has carefully reviewed Plaintiff’s Complaint and the parties’ briefs. Any
remaining allegations or claims not specifically discussed in this opinion are without merit and
fail to state a claim upon which relief can be granted.
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss is GRANTED. If Plaintiff
elects to amend his Complaint—which must take into account the pleading deficiencies
identified in this opinion—any amendment shall be filed on or before April 14, 2022. The Clerk
of the Court is respectfully requested to terminate the motion pending at ECF No. 21 and the
related letter request at ECF No. 19 and to mail a copy of this order to Plaintiff at the address of
record.
SO ORDERED.

Date: March 14, 2022 i So Vi feo
New York, NY MARY □□□ WVYSHOCIL
United StatesDistrict Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10339437. Public record. Not legal advice.