Villalobos v. Captain Smith

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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JORGE VILLALOBOS and CINDY MARTINEZ,

Plaintiffs,

20-cv-9736 (PKC)

-against-

OPINION AND ORDER

CAPTAIN SMITH, CAPTAIN OLOGUN,

DEPUTY WARDEN SHARLISA WALKER,

OFFICER SMALL, CITY OF NEW YORK, and

JOHN AND JANE DOE 1-10,

Defendants.

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CASTEL, U.S.D.J.

Plaintiff Jorge Villalobos, a physician assistant at Rikers Island, alleges that he

was kidnapped and taken hostage by non-party Peter Rodriguez, an inmate at Rikers Island.

According to Villalobos, in the presence of correctional officers, Rodriguez repeatedly

threatened Villalobos’s life during an approximately three-hour period. Villalobos alleges that

the correctional officers named in this action helped create and prolong the hostage situation,

first by failing to properly restrain Rodriguez, and then by failing to call the Emergency Services

Unit once he was taken hostage.

Villalobos and plaintiff Cindy Martinez, his wife, now bring claims against

defendants the City of New York (the “City”), and officers Captain Paul Smith, Captain Oladapo

Ologun, Deputy Warden Sharlisa Walker, Officer Durell Small and John and Jane Doe 1-10 of

the City’s Department of Corrections (“DOC”).1 First, Villalobos brings a section 1983 claim

1 To date, no John or Jane Doe defendant has been identified and none have been served. The time for doing so has

expired under Rule 4(m), Fed. R. Civ. P. Plaintiffs are on notice that the Court will dismiss the John Doe defendants

against Smith, Ologun, Walker and Small, asserting that their conduct deprived Villalobos of a

substantive due process right, specifically, his right protected under the Fourteenth Amendment

to the United States Constitution to be free from state-created dangers. 42 U.S.C. § 1983. (Am.

Compl. ¶¶ 120-53.) No federal claim is asserted against the defendant City. Second, Villalobos

asserts a New York state negligence claim against all defendants, including the City. (Id. ¶¶ 154-

185.) Third, Cindy Martinez asserts a state law claim for loss of consortium, services, support,

society and companionship against all defendants stemming from the impact of Villalobos’s

injuries allegedly caused by defendants. (Id. ¶¶ 186-92.) Defendant City and the four named

DOC officer defendants now move to dismiss the Amended Complaint under Rule 12(b)(6), Fed.

R. Civ. P. (Doc 38, 41.)

As will be explained, viewed in a light most favorable to Villalobos, he has

plausibly alleged a claim for relief under section 1983 against defendants Smith, Ologun and

Small but not as to Deputy Warden Walker, who was not personally involved in the events

giving rise to liability. As to the state law claims, the Court will continue to exercise

supplemental jurisdiction under 28 U.S.C. § 1367. The Court also concludes that the state law

claims against Walker and Ologun are not time-barred and that Villalobos’s lack of physical

injury does not preclude Martinez’s loss-of-consortium claims under New York law.

Defendants’ motions to dismiss will be granted in part and denied in part.

BACKGROUND

The Court summarizes the Amended Complaint’s factual allegations, and, for the

purposes of the motion, accepts them as true, drawing all reasonable factual inferences in favor

at the expiration of seven days from the issuance of this Opinion and Order. For the purposes of this Opinion and

Order, “defendants” will refer to the moving defendants: the City, Smith, Ologun, Walker and Small.

of the plaintiffs as the non-movants. See In re Hain Celestial Grp., Inc. Sec. Litig., 20 F.4th 131,

133 (2d Cir. 2021).

On September 24, 2019, Villalobos, then 58 years old, was working as a

physician assistant and administering medical treatment to inmates on Rikers Island at the

medical clinic in the George R. Vierno Center (“GRVC”), a housing unit within Rikers Island

(Am. Compl. ¶¶ 1, 29.) At the time, Villalobos had served as a physician assistant at Rikers for

29 years. (Id. ¶ 30.) On the date of the incident, Villalobos was assigned to a rotation at the

GRVC’s “11 mini clinic,” which was used to provide medical care to segregated inmates housed

in the central punitive segregation unit and was known to be frequented by dangerous and

potentially violent inmates. (Id. ¶¶ 32-33.)

The mini clinic consists of three parts separated by walls with doors: a waiting

area, an examining room, and a nursing station. When inmates come in for examination, they

come to the waiting area where there are three holding pens, a desk for correctional officers, and

a door connecting the waiting area to the examining room, which is itself connected by a door to

the nursing station, which is only accessible to medical personnel and not to inmates. (Id. ¶¶ 36-

39.) The nursing station has a large plexiglass window so that one can see the examining room

through it, and vice-versa. (Id. ¶ 39.)

At around noon, inmate Peter Rodriguez was escorted into the waiting area,

accompanied by correctional officers Smith, Ologun and Small. (Id. ¶¶ 40, 46-49.) Rodriguez

was a pre-trial detainee at the GRVC awaiting trial for allegedly stabbing and killing his

roommate over rent money. (Id. ¶ 41.) Rodriguez was also known to be a highly dangerous

individual who had assaulted members of the medical staff on Rikers Island, putting a physician

in a headlock and “sucker punching” another physician assistant, and this reputation was

allegedly known by the three officers. (Id. ¶ 42.) When Rodriguez was brought into the mini

clinic waiting area, he was handcuffed, but without shackles around his waist or ankles, even

though as an inmate designated for the central punitive segregation unit, Rodriguez was required

to be shackled around his waist—his hands then cuffed to his waist shackles—and shackled

around his ankles when being brought to the clinic for examination. These DOC protocols were

not followed when the Smith, Ologun and Small brought Rodriguez to the mini clinic on the day

of the incident. (Id. ¶¶ 44-45.) Instead, defendants Smith and Ologun placed him on an

examining table in the examination room, with one hand cuffed to the wall bar. (Id. ¶ 46.)

Villalobos performed a medical assessment on Rodriguez, who did not exhibit visible signs of

injuries, filled out a report and handed the report to Small. (Id. ¶ 47.)

Following the medical assessment, Rodriguez got into a heated argument with

DOC staff members, including Smith, Ologun and Small, making demands for sneakers and

other items and stating that he would not return to his housing area unless his demands were met.

(Id. ¶ 48.) At this point, Small instructed Rodriguez to step into the holding pen in the waiting

area at the mini clinic, as required by safety protocols. (Id. ¶ 49.) But Rodriguez refused,

stating, “I’m not going in there. You know who I am.” Instead of securing compliance with

their instructions, Smith, Ologun and Small allegedly acquiesced and allowed Rodriguez to roam

around outside the holding pen without the proper restraints. (Id. ¶¶ 50-51.)

After Villalobos attended to a second inmate at the mini clinic, DOC staff,

including Captain Smith, Captain Ologun and Officer Small, let Rodriguez back into the

examining room and placed him on the examining table again. In so doing, Smith, Ologun and

Small violated internal DOC safety protocols by failing to return Rodriguez to his housing area

or, at a minimum, keep him restrained in the holding pen in the waiting area. (Id. ¶ 53.) In

contrast, the other inmates Villalobos attended to that day, including the second examined

inmate, were promptly escorted out of the clinic after their examinations. (Id. ¶ 54.)

Villalobos verbally expressed his discomfort at Rodriguez’s refusal to leave and

requested that Rodriguez be escorted out of the mini clinic before Villalobos would see his third

inmate patient for the day. Villalobos informed Smith, Ologun and Small that he would go to a

different clinic for a few minutes to lock it and would return to the 11 mini clinic to see if the

area was clear of Rodriguez so he could see the next patient. (Id. ¶ 55.) Smith, Ologun and

Small, however, allegedly ignored Villalobos’ concerns and instead allowed Rodriguez to remain

without restraints other than his front-cuffs. As a result, when Villalobos returned to the 11 mini

clinic, he found Rodriguez still in the examining room on the examining table, under less

supervision—Small had left the mini clinic in Villalobos’s absence. According to the

allegations, the remaining Captain Smith and Captain Ologun were sitting together in the waiting

area, appearing relaxed and talking to each other without paying any attention to Rodriguez, who

was still not shackled around his waist and ankles, and at this point, not restrained to a wall post

as he had been previously. (Id. ¶¶ 56-59.)

Villalobos asked Smith and Ologun why Rodriguez was still at the 11 mini clinic

and where his third patient was. Smith allegedly responded that the third patient had already left

and that Rodriguez would leave in a few minutes. When Villalobos expressed his safety

concerns, Smith and Ologun dismissed them and told Villalobos not to worry. (Id. ¶¶ 60-61.) In

response, Villalobos went into the nursing station of the 11 mini clinic to call and inform a DOC

administrator or supervisor that Rodriguez was still in the clinic and refusing to leave.

Allegedly, no one picked up Villalobos’s call. (Id. ¶ 66.)

At approximately 1 p.m., when Villalobos hung up the phone and turned around,

he found Rodriguez standing right behind him in the nursing station, asking for a glass of water.

According to the allegations, Smith and Ologun, who were still in the medical clinic, did not

interfere or seek to restrain Rodriguez, who had found his way to the innermost part of the clinic

with Villalobos. (Id. ¶ 67.) When Villalobos told Rodriguez that he could not be in the nursing

station and told him to leave the area, Rodriguez pushed Villalobos, took Villalobos’s keys and

locked the door connecting the examining room and the nursing station, barricading himself in

the nursing station with Villalobos. (Id. ¶¶ 68-69, 72.)

Upon being locked in with Rodriguez, Villalobos started banging on the

Plexiglass window between the nursing station and the examining room to catch Ologun and

Smith’s attention. Meanwhile, Rodriguez was barricading the entrance of the nursing station

with a desk and other medical equipment. (Id. ¶ 71.) Smith and Ologun responded by asking

Villalobos to open door, to which Villalobos replied that he was obviously unable to open the

door because Rodriguez was blocking the entrance and had the keys. (Id. ¶ 73.)

Several DOC officers then rushed into the area and unsuccessfully attempted to

verbally persuade Rodriguez to open the door to the nursing station. (Id. ¶ 74.) Allegedly, none

of the DOC officers, including the individual defendants, initially called the Emergency Service

Unit (“ESU”), which was the proper protocol for immediately defusing a volatile and high-risk

situation. (Id. ¶ 75.) According to the Amended Complaint, once the ESU is called per DOC

protocols, the incident is widely known and representatives of the City, including the mayor, are

notified and potentially become involved. (Id. ¶ 84.) Allegedly, Smith and Ologun, along with

other DOC officers, attempted to handle the negotiation with Rodriguez without involving the

ESU for a significant period of time. For example, a nurse from the GRVC main clinic, known

as Nurse Razak, called the nursing station twice to speak to Rodriguez, who then mocked the

nurse, told her that she was a “bad negotiator,” and hung up the phone. Nurse Razak is alleged

not to have any training, education, or qualification to engage in such a hostage negotiation, and

Villalobos felt that her failures and the DOC officers’ loud arguments with Rodriguez would

further agitate Rodriguez and endanger Villalobos himself. (Id. ¶¶ 84-86.) In fact, Rodriguez

himself made several verbal requests for the Smith and Ologun to call the ESU because he

wanted to convey his demands to the ESU directly, but they allegedly refused. (Id. ¶ 87.)

Villalobos alleges that for the next three hours, Rodriguez continued to hold him

hostage in the nursing station, during which Smith, Ologun and Walker, present at the scene at

various times, refrained from intervening directly and also refused to call the ESU. (Id. ¶¶ 76-

77, 82.) For example, at around 2 p.m., approximately an hour into the crisis, defendant Walker,

the deputy warden, showed up in person to assess the situation. Villalobos observed that Walker

was acting in a nonchalant manner, with hands in her pockets, looking at Villalobos and

Rodriguez in the nursing station through the Plexiglass window. After speaking with DOC

officers, Walker left the clinic, without attempting to engage with Villalobos or Rodriguez in any

way. (Id. ¶ 83.)

During the three hours in which Rodriguez held Villalobos hostage, Rodriguez

made numerous threats to kill, assault, bite and otherwise gravely injure Villalobos. For

example, Rodriguez specifically threatened to “chew [Villalobos’s] face off, and that he would

use an oxygen tank, which he had placed on a desk, “to smash the doctor’s head,” and announce

that it would be the individual defendants’ fault that Villalobos would get hurt. (Id. ¶ 78.)

Rodriguez also shouted threats, including that he was “going to f—k this guy up” and that he

“don’t care if I kill [Villalobos].” (Id. ¶ 79.) At one point, Rodriguez asked Villalobos where the

scalpels were, to which Villalobos responded that they do not carry any sharp instruments in the

mini clinic. Rodriguez proceeded to search around the nursing station looking for scalpels,

ripping off computer wires and electrical cables, threatening Villalobos by telling him, “you

better be right or you are going to regret it.” (Id. ¶ 80.) Contrary to what Villalobos told his

captor, there were indeed scalpels in the nursing station. (Id. ¶ 39.) During his captivity,

Villalobos feared for his life and prayed that he would die quickly, as he observed Rodriguez

grow increasingly agitated, hostile and volatile. (Id. ¶¶ 80-81.)

Finally, at around 3 p.m. or 4 p.m., a member of the ESU team arrived and

informed Rodriguez that unless he opened the door within 30 seconds, they would bring the door

down. Rodriguez complied within a few minutes, and Villalobos was able to leave the nursing

station, shaking, short of breath, unable to speak, and with a blood pressure measured at 188/122.

(Id. ¶¶ 83, 88-90.)

As a result of the incident, Villalobos suffers from debilitating post-traumatic

stress disorder associated with flashbacks, panic attacks, anxiety, nightmares, sleep disturbances

and hypervigilance. (Id. ¶ 93.) He finds himself living in constant fear—to the extent of being

afraid to close the bathroom door while showering—as well as feeling aloof and disconnected

even when he is with his family. (Id.) He also alleges that he has lost his sex drive, which has

affected his relationship with his wife, Martinez. (Id.) Between September 25, 2019 and April

1, 2020, Villalobos exhausted his accumulated sick days and took a medical leave of absence.

(Id. ¶ 94.) He returned to work on April 1, 2020 as the sole income-earner of his family, but in a

limited role as a telehealth provider overseeing nurses, as he can no longer interact with patients

due to his post-traumatic stress disorder. (Id.) Following this incident, the City suspended Smith

and Ologun. (Id. ¶ 115.)

MOTION TO DISMISS STANDARD

To survive a motion to dismiss under Rule 12(b)(6), “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)). Legal conclusions are not entitled to the presumption of truth, and a court

assessing the sufficiency of a complaint disregards them. Iqbal, 556 U.S. at 678. Instead, the

Court must examine only the well-pleaded factual allegations, if any, “and then determine

whether they plausibly give rise to an entitlement to relief.” Id. at 679. A complaint must

include non-conclusory factual allegations that “‘nudge[]’” its claims “‘across the line from

conceivable to plausible.’” Id. at 680 (quoting Twombly, 550 U.S. at 570).

In addition to the complaint’s allegations, a court “may consider any written

instrument attached to the complaint, statements or documents incorporated into the complaint

by reference, legally required public disclosure documents filed with the SEC, and documents

possessed by or known to the plaintiff and upon which it relied in bringing the suit.” ATSI

Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).

DISCUSSION

A. Section 1983 Claims

The Court concludes that Villalobos has plausibly pled under section 1983 that

Smith, Ologun and Small violated his right to substantive due process under the state created

danger doctrine that Villalobos expressly invokes. (Am. Compl. ¶¶ 120-21.) The Court

concludes that Villalobos has failed to plead a section 1983 claim against Walker.

i. Applicable Law

“Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to

the deprivation of any rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding

for redress . . . .” 42 U.S.C. § 1983. An individual may be held liable under section 1983 “only

if that individual is ‘personally involved in the alleged deprivation.’” Littlejohn v. City of New

York, 795 F.3d 297, 314 (2d Cir. 2015) (quoting Back v. Hastings On Hudson Union Free Sch.

Dist., 365 F.3d 107, 126 (2d Cir. 2004)). As relevant here, “[p]ersonal involvement can be

established by showing that . . . the defendant participated directly in the alleged constitutional

violation.” Id.

“Although ‘[a]s a general matter . . . a State’s failure to protect an individual

against private violence simply does not constitute a violation of the Due Process Clause,’ state

actors may be liable under section 1983 if they affirmatively created or enhanced the danger of

private violence.” Okin v. Vill. of Cornwall-On-Hudson Police Dep’t, 577 F.3d 415, 427-28 (2d

Cir. 2009) (quoting DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 197

(1989) and citing Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir. 1993)). “[T]hough an

allegation simply that . . . officers had failed to act upon reports of past violence would not

implicate the victim’s rights under the Due Process clause, an allegation that the officers in some

way had assisted in creating or increasing the danger to the victim would indeed implicate those

rights.” Okin, 577 F.3d at 428 (quoting Dwares, 985 F.2d at 99).

In conducting this analysis, the Second Circuit has held that “the Due Process

Clause may be violated when . . . officers’ affirmative conduct—as opposed to passive failures to

act—creates or increases the risk of private violence, and thereby enhances the danger to the

victim.” Id. (emphases in original). “[W]here the state actors actually contributed to the

vulnerability of the plaintiff, or where the state actors aided and abetted a private party in the

deprivation of a plaintiff’s civil rights, a violation of the Due Process Clause does occur.” Id.

The Second Circuit has also found that “repeated, sustained inaction by

government officials in the face of potential acts of violence, might constitute ‘prior assurances,’

. . . rising to the level of an affirmative condoning of private violence, even if there is no explicit

approval or encouragement.” Id. (quoting Dwares, 985 F.2d at 99). For example, when “state

officials communicate to a private person that he or she will not be arrested, punished, or

otherwise interfered with while engaging in misconduct that is likely to endanger the life, liberty

or property of others, those officials can be held liable under section 1983 for injury caused by

the misconduct under Dwares. This is so even though none of the defendants [is] alleged to have

communicated the approval directly.” Id. (quoting Pena v. DePrisco, 432 F.3d 98, 111 (2d Cir.

2005)). In other words, “the Due Process Clause could be violated by [state officials’] implicit

message that they condoned” the private actor’s misconduct, which was likely to endanger the

life, liberty or property of others. Id.

In addition, “[t]o establish a violation of substantive due process rights, a plaintiff

must demonstrate that the state action was ‘so egregious, so outrageous, that it may fairly be said

to shock the contemporary conscience.’” Okin, 577 F.3d at 428 (quoting Cnty. of Sacramento v.

Lewis, 523 U.S. 833, 847 n.8 (1998), abrogated on other grounds by Saucier v. Katz, 533 U.S.

194 (2001)). Notably, it is the action of the state actor, not the private party directly inflicting

the harm, that is the focus of this inquiry.

“‘[L]iability for negligently inflicted harm is categorically beneath the threshold

of constitutional due process,’ but ‘injuries . . . produced with culpability falling within the

middle range, following from something more than negligence but less than intentional conduct,

such as recklessness or gross negligence, is a matter for closer calls.’” Bolmer v. Oliveira, 594

F.3d 34, 142-43 (2d Cir. 2010) (quoting Lewis, 523 U.S. at 849). “Deliberate indifference that

shocks in one environment may not be so patently egregious in another,” and the Supreme Court

has instructed that the “concern with preserving the constitutional proportions of substantive due

process demands an exact analysis of circumstances before any abuse of power is condemned as

conscience shocking.” Lewis, 523 U.S at 850. For example, the Supreme Court has

distinguished situations like “high-speed law enforcement chases,” from “the custodial situation

of a prison, [where] forethought about an inmate’s welfare is not only feasible but obligatory

under a regime that incapacitates a prisoner to exercise ordinary responsibility for his own

welfare.” Id. at 851. In interpreting Supreme Court precedent, the Second Circuit has

emphasized the importance of recognizing situations where government officials “were subjected

to the ‘pull of competing obligations,’” Matican v. City of New York, 524 F.3d 151, 159 (2d Cir.

2008), because when “great harm is likely to befall someone no matter what a government

official does, the allocation of risk may be a burden on the conscience of the one who must make

such decisions, but does not shock the contemporary conscience.” Id. (holding that officers’

decision to use force in the arrest of a “potentially violent drug dealer” did not “shock the

conscience” because the officers “were obliged to protect their own safety as well as [the

plaintiff’s]”).

ii. Application

As alleged in the Amended Complaint, Smith, Ologun and Small’s conduct both

preceding and during the hostage taking is deeply troubling and raises serious and legitimate

concerns about their failure to follow DOC’s internal protocols that are intended to protect the

physical well-being of the medical staff. Of course, violation of internal protocols does not

equate with a constitutional violation and, indeed, compliance with protocols does not foreclose

a finding that a constitutional right was violated. See e.g., Collado v. City of New York, 2017

WL 4533772, at *3 (S.D.N.Y. Sept. 27, 2017) (Batts, J.) (noting that “[a]lthough a violation of

[department protocol] is not necessarily a violation of constitutional rights just as a violation of

constitutional rights is not necessarily a violation of [department protocol],” such protocol “is

relevant in determining how a reasonable officer might comport himself under the

circumstances.”) The Court concludes at the pleading stage that if the facts alleged were proven,

a reasonable factfinder could conclude that the Smith, Ologun and Small’s failures to properly

restrain and supervise Rodriguez may have had the effect of “creating or increasing the danger”

posed by Rodriguez to Villalobos—because Rodriguez was not properly restrained or

supervised, he was able to enter the nursing station and take Villalobos hostage. The alleged

actions of these officers in allowing Rodriguez to roam freely in the mini clinic and later the

nursing station could lead a factfinder to conclude that they amounted to more than “fail[ures] to

act upon reports of past violence,” such as reports of Rodriguez’s assaulting medical staff. Okin,

577 F.3d at 428.

To succeed in arguing that Smith, Ologun and Small’s inaction amounted to a

deprivation of his substantive due process rights under the state created danger doctrine,

Villalobos must show that the “repeated, sustained inaction by government officials in the face

of potential acts of violence,” “constitute[d] ‘prior assurances,’ rising to the level of an

affirmative condoning of private violence, even if there is no explicit approval or

encouragement.” Okin, 577 F.3d at 428. In other words, Villalobos must allege that the Smith,

Ologun or Small “communicate[d], explicitly or implicitly, official sanction of private violence.”

Id. at 429 (citing Pena, 432 F.3d at 111, Hemphill, 141 F.3d at 419, Dwares, 985 F.2d at 99).

This case does not neatly fit the contours of other cases successfully invoking the

doctrine, but three interrelated allegations help nudge this complaint over the plausibility hurdle.

First, the Amended Complaint implicitly alleges that the individual officers acceded to

Rodriguez’s threats of violence directed to them. When Small directed Rodriguez to enter the

holding pen in the waiting area at the mini clinic, Rodriguez refused, stating “I’m not going in

there. You know who I am.” (Am. Compl. ¶ 50.) If competent evidence of the remark were

introduced at trial, a reasonable fact finder could conclude that it was a threat that he, Rodriguez,

would forcibly resist efforts by the officers to force him into the pen and thereby expose the

officers to a risk of injury. In violation of the protocols, the officers did not force him into the

pen thereby increasing the risk of harm of Villalobos. Second, when Villalobos expressed his

discomfort with Rodriguez’s continued presence at the nursing station, Smith and Ologun

dismissed them and told Villalobos not to worry. (Id. ¶¶ 60-61.) Third, while the officers on the

scene knew that the ESU could and should be called to the scene once Villalobos was taken

hostage by Rodriguez, they refrained from doing so. A reasonable fact finder could conclude

that this was more than passive inaction but a conscious choice not to elevate the visibility of the

incident and thereby expose their earlier failure to properly restrain and supervise Rodriguez.

The Court concludes that if these interrelated allegations were proven at trial, a

reasonable factfinder could conclude that the officers’ continued inaction and failure to properly

restrain and supervise Rodriguez conveyed an official sanction of Rodriguez’s decision to remain

in and wander around the mini clinic—a sanction which Rodriguez procured with implied threats

of violence against the officers and led directly to his holding Villalobos against his will behind a

locked door.2 Like in Okin, where the Second Circuit noted that a “reasonable factfinder

undoubtedly could conclude that defendants . . . conveyed to [the aggressor] that he could

continue to engage in domestic violence with impunity,” Okin, 577 F.3d at 430-31), here a

reasonable factfinder could conclude that Smith, Ologun and Small implicitly conveyed to

Rodriguez their acquiescence to his acting out and roaming around a restricted area in the

presence of vulnerable medical staff, and that this conveyance, coupled with the officers’

knowledge of his reputation for violence, including prior acts of violence against medical staff,

amounts to condonation of private violence within the meaning of Okin.

A reasonable factfinder, if the allegations were proven, could also conclude that

the conduct of Smith, Ologun and Small “shocks the contemporary conscience.” Okin, 577 F.3d

at 428. At trial, Villalobos may prove that Smith, Ologun and Small knew that Rodriguez had

been charged with stabbing his roommate to death and had assaulted multiple medical staff at

Rikers Island. This knowledge, coupled with the decision to restrain Rodriguez with only front

handcuffs and to allow him to roam freely about the medical clinic, resulting in the inmate taking

a 58-year-old hostage for three hours in a locked room, and the fact that Smith and Ologun

delayed notifying the ESU who could have brought the incident to an early end, could support a

finding that the officers’ actions shock the contemporary conscience.

2 The Court need not decide at the pleadings stage whether Small’s departure before the actual hostage taking breaks

the chain of causation for the consequences of the hostage taking.

At the pleading stage, drawing reasonable inferences in favor of Villalobos as the

non-movant, Villalobos’s allegations meet the requirements of the state created danger doctrine

and he has stated a plausible claim to relief under section 1983 against Smith, Ologun and Small.

iii. Qualified Immunity Defense for Smith, Ologun and Small

Based on the allegations of the Amended complaint, the Court concludes that at

the current motion-to-dismiss stage, defendants Smith, Ologun and Small have failed to establish

a defense of qualified immunity.

“The doctrine of qualified immunity shields officials from civil liability so long as

their conduct ‘does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quoting

Pearson v. Callahan, 55 U.S. 223, 231 (2009)). “A clearly established right is one that is

‘sufficiently clear that every reasonable official would have understood that what he is doing

violates that right.’” Id. (quoting Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)). In so

reviewing, courts “do not require a case directly on point, but existing precedent must have

placed the statutory or constitutional question beyond debate.” Id. (quoting Ashcroft v. al-Kidd,

563 U.S. 731, 741 (2011). “Put simply, qualified immunity protects ‘all but the plainly

incompetent or those who knowingly violate the law.’” Id. (quoting Malley v. Briggs, 475 U.S.

335, 341 (1986)).

The Supreme Court has “repeatedly told courts . . . not to define clearly

established law at a high level of generality.” Id. (quoting al-Kidd, 563 U.S. at 742). In the

Second Circuit, “[w]e look to Supreme court and Second Circuit precedent existing at the time of

the alleged violation to determine whether the conduct violated a clearly established right,” here,

on September 24, 2019. Okin, 577 F.3d at 433. Courts may also examine “statutory or

administrative provisions in conjunction with prevailing circuit or Supreme Court law to

determine whether an individual had fair warning that his or her behavior would violate the

victim’s constitutional rights.” Id. at 433-34. As early as 2009, the Second Circuit has held that

circuit precedent “gave notice of the rule that a police officer can violate a person’s due process

rights by affirmatively creating or increasing the risk of private violence against that person,”

and that “the state-created danger theory . . . [had] clearly established that police officers are

prohibited from affirmatively contributing to the vulnerability of a known victim by engaging in

conduct, whether explicit or implicit, that encourages intentional violence against the victim.”

Id. at 434 (emphasis in original).

As relevant here, on a motion to dismiss, a qualified immunity defense “‘faces a

formidable hurdle . . .’ and is usually not successful.” Field Day, LLC v. Cnty. of Suffolk, 463

F.3d 167, 191-92 (2d Cir. 2006) (quoting McKenna v. Wright, 386 F.3d 432, 434 (2d Cir.

2004)). “Dismissal under Rule 12(b)(6) is only appropriate if ‘it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which would entitle him to belief.’” Id.

at 192.

As noted, by September 24, 2019, it was “clearly established that police officers

are prohibited from affirmatively contributing to the vulnerability of a known victim by engaging

in conduct, whether explicit or implicit, that encourages intentional violence against the victim.”

Okin, 577 F.3d at 434 (emphasis in original). Although Smith, Ologun and Small were

correctional officers, not police officers, the Supreme Court has “ma[de] clear that officials can

still be on notice that their conduct violates established law even in novel factual circumstances

. . . . [T]he salient question . . . is whether the state of the law in [2019] gave [them] fair

warning” that their alleged treatment of Villalobos was unconstitutional. Hope v. Pelzer, 536

U.S. 730, 741 (2002).

At the motion-to-dismiss stage, individual defendants face a “formidable hurdle”

for establishing a qualified immunity defense, Field Day, 463 F.3d at 191-92. Drawing all

reasonable inferences in favor of Villalobos as the non-movant, the Court concludes that Smith,

Ologun and Small were on notice that their actions violated Villalobos’s clearly established right

to be free from state-created danger.

Accepting the allegations of the Amended Complaint as true, it is “hard to

fathom” how a reasonable official in Smith, Ologun and Small’s shoes could have believed that

he was acting in a constitutionally permissible fashion. Id. at 195. To be specific, in leading up

to the hostage situation, Smith, Ologun and Small: (1) brought a “dangerous inmate” (City Br. at

18) awaiting trial for murder and well known for assaulting other medical staff at Rikers Island,

without the proper restraints (he was only handcuffed from the front, without any waist or ankle

shackles); (2) allowed him to roam about the mini clinic after he defiantly refused their

instruction to step into the holding pen and instead told them that “[y]ou know who I am;” (3)

did not remove the dangerous inmate from the mini clinic after he had already been examined by

Villalobos and presumably had no further business at the mini clinic, despite Villalobos’s

repeated requests to do so and even after Villalobos’s temporary departure from the mini clinic

in protest; and (4) upon Villalobos’s return, Smith and Ologun (Small had left at this point)

allowed this dangerous inmate to walk into the innermost part of the mini clinic (which stored

potentially dangerous medical equipment such as scalpels) where Villalobos, with his back to the

door, was trying to call an administrator to remove the insufficiently restrained and supervised

Rodriguez from the mini clinic.

Accordingly, at the pleading stage, the Court concludes that as to Smith, Ologun

and Small, qualified immunity is not available as a basis for dismissing the claim.

iv. Section 1983 Claims Against Walker

The Court concludes that Villalobos has failed to state a plausible claim to relief

under section 1983 as against Walker. Based on the Amended Complaint, Walker briefly

stopped by for the first time during the hostage situation and left, without seemingly intervening

herself or calling the ESU. Her actions cannot be characterized as actively creating or increasing

the danger of the hostage situation to Villalobos, which was already fully underway, nor did she

communicate that Rodriguez would go unpunished for the hostage taking. As another

independently fatal failure, Villalobos has not adequately pled that Walker’s actions shock the

contemporary conscience, as required for a due process claim under section 1983.

Accordingly, the motions to dismiss Villalobos’s section 1983 claims against the

individual defendants will be denied as to Smith, Ologun and Small and granted as to Walker..

B. Negligence and Loss-of-Consortium Claims

Defendants urge that the plaintiffs’ state law claims are time-barred as against

Walker and Ologun, who were not named as plaintiffs until the Amended Complaint was filed on

August 24, 2021, more than a year and ninety days after the incident on September 24, 2019.

(City Br. at 19-20, 22-23 (citing N.Y. Gen. Mun. Law 50-i).) As to the loss-of-consortium

claims, defendants argue that Martinez has failed to allege that Villalobos was physically injured

during the incident as required to plausibly state a claim to relief under New York law. (City Br.

at 20-21.)

The Court concludes that the state law claims against Walker and Ologun are not

time-barred and that the lack of an alleged physical injury by Villalobos does not bar Martinez’s

recovery on her derivative loss-of-consortium claims under New York law.

i. Timeliness of the State Law Claims Against Walker and Ologun

Defendants argue that “[p]ursuant to New York General Municipal Law 50-i, an

action must be commenced within one year and ninety days after the happening of the event on

which the claim is based.” (City Br. at 22.) They argue that because plaintiffs did not name

Walker and Ologun by their true names, but instead as “the Warden of GRVC” and “Captain

Ohagbon” until plaintiffs filed the Amended Complaint on August 24, 2021—more than a year

and ninety days after September 24, 2019—the state law claims must be dismissed against both

Walker and Ologun. (Id.)

Defendants’ argument is misplaced. New York General Municipal Law § 50-i

applies to actions against “a city, county, town, village, fire district or school district,” not to

claims against individual officers, such as Walker and Ologun.3 N.Y. Gen. Mun. Law § 50-i(1)

(McKinney 2019). As the defendants themselves note, “[w]hether a claim against the City is

timely filed is an issue separate and apart from the timeliness of the filing as to an individual

defendant.” (City Reply Br. at 10.) As to the timeliness of filing a suit against an individual

defendant, New York’s general statute of limitations for actions seeking to recover damages for

personal injury, including negligence claims and loss-of-consortium claims, is three years. N.Y.

3 More fully, New York General Municipal Law § 50-i states: “(1) No action or special proceeding shall be

prosecuted against a city, county, town, village, fire district or school district for personal injury, wrongful death or

damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of

such city, county, town, village, fire district or school district or of any officer, agent or employee thereof . . .

[unless] the action or special proceeding shall be commenced within one year and ninety days after the happening of

the event upon which the claim is based.” N.Y. Gen. Mun. Law § 50-I (McKinney 2019).

C.P.L.R. § 214(5) (McKinney 2021). The Amended Complaint, with the correct names for

Walker and Ologun, was filed on August 24, 2021, within three years of September 24, 2019.

Accordingly, the Court concludes that the state claims against Walker and Ologun

are not time-barred and the motions to dismiss these claims on statute-of-limitations grounds will

be denied.

ii. Loss-of-Consortium Claims and Allegations of Physical Injury

Defendants also argue that “Martinez cannot sustain a state law claim for loss of

consortium on behalf of Martinez because Villalobos has failed to allege a physical injury, as he

must, to allow his wife to pursue this derivative claim.” (City Br. at 20.) However, “in New

York, a derivative claim for loss of consortium can be asserted even where the principal claim is

based on emotional rather than physical injuries.” Pratt v. Ocean Med. Care, P.C., 236 A.D.2d

380, 381 (2d Dep’t 1997). See also Garrison v. Sun Printing & Publishing Ass’n, 207 N.Y. 1, 10

(1912) (“[T]he question is presented whether a husband may recover for loss of services of his

wife caused by her sickness resulting from mental distress . . . . I recommend that the judgment

appealed from be affirmed, with costs, and the question certified to us answered in the

affirmative.”).

Accordingly, the motions to dismiss Martinez’s loss-of-consortium claims solely

because Villalobos has not alleged a physical injury will be denied.

CONCLUSION

After consideration of all the arguments of the parties, including those not

expressly referenced, the motions to dismiss the Amended Complaint are DENIED as to: (1) the

section 1983 claims against Smith, Ologun and Small; (2) the New York state negligence claims

against all defendants; and (3) the New York state loss-of-consortium claims against all

defendants and GRANTED as to the section 1983 claim against Walker. The Clerk is

respectfully directed to terminate the motions (Doc 38, 41).

SO ORDERED.

LZ Peers Pl

United States District Judge

Dated: New York, New York

May 16, 2022

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