Taylor v. Trigeno

UNITED STATES DISTRICT COURT ELECTRONICALLY FILED

DOC #: _________________

SOUTHERN DISTRICT OF NEW YORK

DATE FILED: 8/17/2023

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ROY TAYLOR, :

:

Plaintiff, :

: 1:16-cv-1143-GHW

-against- :

: MEMORANDUM

RIKERS C.O. QUAYYUM and CITY OF NEW : OPINION & ORDER

YORK :

:

Defendants. :

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GREGORY H. WOODS, United States District Judge:

I. INTRODUCTION

In January 2016, Plaintiff Roy Taylor, a pretrial detainee on Rikers Island, was waiting in line

for a visit to the health clinic. Louis Dorsey, another inmate, was standing just three feet from Mr.

Taylor. Mr. Dorsey cursed at Correction Officer Nayab Qayyum. Without more provocation than

that, despite pleas from the inmates for calm, Officer Qayyum sprayed Mr. Dorsey in the eyes with

mace. When Mr. Dorsey ducked toward Mr. Taylor, Officer Qayyum sprayed him in the face too.

Mr. Taylor, acting pro se, brought this action against Officer Qayyum and the City of New

York asserting claims under 42 U.S.C. § 1983 for the excessive use of force and state law claims for

assault and battery. The defendants moved for summary judgment with respect to those claims.

However, in preparing their motion, the defendants disregarded substantial record evidence

supporting Mr. Taylor’s view of the incident—one in which Officer Qayyum’s act was unprovoked

and, therefore, at least arguably unreasonable. Because there are disputed issues of material fact

regarding whether Officer Qayyum’s use of force was reasonable, the defendants’ motion is

DENIED.

II. BACKGROUND

A. Factual Background1

From Mr. Taylor’s perspective, the facts of this case are straightforward. At the time of the

incident at issue in this motion, Mr. Taylor was a pretrial detainee housed at the Robert N. Davoren

Complex on Rikers Island (the “RNDC”). Defendants’ Rule 56.1 Statement (“Defs. 56.1”), Dkt.

No. 233, ¶ 1. On January 25, 2016, Mr. Taylor was brought to the corridor near the facility’s

medical clinic. Id. ¶ 2. Ten or more inmates were in the area waiting with Mr. Taylor. Declaration

of Amanda Rolon, Dkt. No. 232 (“Rolon Decl.”), Ex. G Deposition of Roy Taylor (“Taylor Dep.”),

at 17:6-13. One of the inmates was Louis Dorsey. Taylor Dep. at 17:14-17. One or two correction

officers were also in the area. Defs. 56.1 ¶¶ 4, 5; Taylor Dep. at 16:10-12. One of those officers was

the defendant, Correction Officer Nayab Qayyum.

Mr. Dorsey argued with Officer Qayyum. Mr. Taylor heard Mr. Dorsey complaining to

Officer Qayyum. Taylor Dep. at 32:23-33:19. Mr. Dorsey was not using a “normal voice”—the

Court understands that his voice was elevated—and he “may have cussed [Officer Qayyum out. He

may have used profanity.” Id. at 33:11-15; 34:2-3. Although Mr. Dorsey was insulting Officer

Qayyum, he “wasn’t in an aggressive stance, nothing . . . . He was relaxed, and he just voiced how

he felt.” Id. at 33:22-24. “It [sic] wasn’t no threats posed or – he never acted out or was in any

stance to that effect.” Id. at 19:25-20:1. To Mr. Taylor, it appeared that Officer Qayyum was “kind

of insulted by [Mr. Dorsey] cussing him out.” Id. at 19:23-24. “And he responded by pulling his

mace out.” Officer Qayyum held the mace and pointed it at Mr. Dorsey. Id. at 36:3-14; see also

1 The facts are drawn from Defendants’ Local Civil Rule 56.1 statement and the parties’ other submissions in

connection with these motions. The facts are either undisputed or viewed “in the light most favorable to the party

opposing summary judgment”—Plaintiff—while “drawing all reasonable inferences in [his] favor.” M.A. ex rel. H.R. v.

Rockland Cnty. Dep’t of Health, 53 F.4th 29, 35 (2d Cir. 2022) (quoting Guan v. City of New York, 37 F.4th 797, 804 (2d Cir.

2022)). Many of the facts described here are disputed; where facts are disputed, the narrative presented here is that

provided by Plaintiff.

Taylor Affidavit, Dkt. No. 252 at ECF pp. 32-34 (“Taylor Aff.”) (“This occurred [due] to a verbal

confrontation between detainee Louis Dorsey & Quayyum which went viral and turned irrational by

CO Quayyum . . . .”).

Mr. Taylor was just feet away from Mr. Dorsey during Mr. Dorsey’s altercation with Officer

Qayyum. Mr. Taylor testified that he was most likely 3-4 feet away from him. Id. at 49:9-12.2 After

he saw Officer Qayyum take out his mace, Mr. Taylor warned the officer not “to display that”

around him. Id. at 25:8. Mr. Taylor and two other inmates said directly to Officer Qayyum “don’t

spray over here. He’s not doing anything to warrant spray.” Id. at 35:9-10; 35:18-20.

While Mr. Taylor and the other inmates were telling Officer Qayyum not to spray Mr.

Dorsey, Mr. Dorsey “calmed down somewhat.” Id. at 35:25. Mr. Dorsey, his hands down, said to

Officer Qayyum “don’t’ spray me with that mace, don’t spray me with that mace. I wasn’t doing

anything to warrant spray.” Id. at 36:23-27:3. Mr. Dorsey never approached the officer. Id. at 37:4-

6; ; see also Taylor Aff. at 32 (“at no time was Dorsey aggressive or made any threatening gestures and

the use of mace [was] uncalled for . . . .”).

Nevertheless, without warning, Officer Qayyum sprayed Mr. Dorsey: he “just quickly

sprayed.” Id. at 36:15-17. Officer Qayyum sprayed the mace straight into Mr. Dorsey’s eyes. Id. at

38:9-10. When he sprayed, the can of mace was very close to Mr. Dorsey’s face—“like two inches

from his face.” Id. at 38:11.

Mr. Dorsey tried to duck the spray and moved in the direction of Mr. Taylor—who was just

3-4 feet away from Mr. Dorsey when Officer Qayyum discharged his mace. Id. at 43:9-17; 44:17-24.

Officer Qayyum, apparently tracking Mr. Dorsey’s movements, aimed towards Mr. Taylor and other

inmates. Id. at 43:9-14. The chemical spray hit Mr. Taylor in his face—in particular, his chin and

eyes. Id. at 45:7-9; see also Taylor Aff. at 32 (“I was sprayed directly in the face after missing Dorsey

2 Mr. Taylor earlier testified that he was six feet from Mr. Dorsey. Taylor Dep. 32:5.

who ducked in my close proximity.”). Mr. Taylor’s shirt was stained with the orange chemical from

the spray. Id. at 45:10-13. And the mace suffused the air in the area where Mr. Taylor was standing.

Mr. Taylor does not contend that Officer Qayyum intentionally targeted him with mace. Id.

at 43:22-24. Instead, he believes that when Officer Qayyum sprayed the mace “he sprayed it sort of

recklessly, and it affected me.” Id. at 44:2-3.

After Officer Qayyum sprayed Mr. Dorsey, Mr. Taylor and some of the other inmates,

another correction officer asked the inmates to face the wall in the corridor. Id. at 25:16-21. Mr.

Taylor went into the medical clinic after the spraying started to avoid the spray. Id. at 37:10-18.

From there, he was directed to line up with other inmates and was taken back to his unit. Id. at 40:2-

8.

After being sprayed, Mr. Taylor experienced a number of symptoms: coughing, sneezing,

burning eyes and skin irritation. Id. at 51:15-24. The coughing did not last long—about 30 minutes

after his exposure. Id. at 52:20-21. Nor did his sneezing—which lasted for approximately 5

minutes. Id. at 53:11-13. But his other symptoms lasted longer: his eyes burned for two to three

days, id. at 52:3-8, and his skin remained irritated for an equivalent amount of time. Id. at 53:21-23.

His immediate symptoms resolved themselves. Id. at 54:5-6. But Mr. Taylor speculates that the

incident may have contributed to his need for a later surgery on his nose. Id. at 54:24-55:2 (“Q:

And why did you need a nose surgery? A. They say it was complications from either chemical agent

or a drug use perhaps. I’m not sure. They couldn’t determine.”).

The defendants dispute many aspects of Mr. Taylor’s narrative of the incident. In the

narrative that they present in their Local Rule 56.1 statement, an unconscious inmate was lying on

the floor of the corridor, leading one Captain Harris to instruct all of the inmates to place their

hands on the wall of the corridor. Defs. 56.1 ¶¶ 5-6. Then, in the defendants’ narrative, Officer

Qayyum asked Mr. Dorsey to place his hands on the wall. Id. ¶ 8. But Mr. Dorsey did not comply,

and instead began to curse at the officer. Id. ¶¶ 9-10. Officer Qayyum states that Mr. Dorsey

advanced toward him “in a threatening manner with closed fists while yelling expletives.” Id. ¶ 11.

Because he feared for his safety, and for “the safety of staff and other inmates,” Officer Qayyum

asserts, he deployed a single, two second burst of spray at Mr. Dorsey’s face. Id. ¶¶ 12-14. In the

defendants’ account of events, Mr. Taylor was much further away during the spraying incident than

in Mr. Taylor’s version—10 feet—rather than the 3-4 feet described by Mr. Taylor. Id. ¶ 10. The

defendants acknowledge, however, that Mr. Taylor was exposed to the chemical spray in the air, and

that some of the chemical spray “made contact with his shirt and facial area when Louis Dorsey

moved toward plaintiff.” Id. ¶ 19. What the defendants do not seem to acknowledge, however, is

that the Court must accept Mr. Taylor’s version of events as recounted in his affidavit and in his

deposition for purposes of evaluating their motion.

B. Procedural History

Mr. Taylor was arrested by the New York City Police Department on December 26, 2015.

Dkt. No. 2, at ECF 8. That arrest led to criminal charges against him in New York State Supreme

Court. Complaint (“Compl.”), Dkt. No. 8, Ex. A. Mr. Taylor commenced this action pro se on

February 9, 2016 asserting claims for false arrest in relation to his December 26, 2015 arrest, and

asserting claims for the use of excessive force and deliberate indifference to his medical needs in

relation to the January 25, 2016 incident at the RNDC. Compl. at 8–12. On June 3, 2016, Judge

Richard Sullivan, who was then presiding over this case, stayed the entire action pending the

resolution of Plaintiff’s criminal case. Dkt. No. 9.

On March 11, 2019, Mr. Taylor moved to amend his original complaint to add additional

claims relating to his criminal prosecution. Dkt. No. 79. The Court granted him leave to do so.

Dkt. No. 80. Plaintiff then filed his First Amended Complaint on May 9, 2019, Dkt. No. 87, after

which—and without leave of Court—he filed his Second Amended Complaint (the “SAC”). Dkt.

No. 90. On December 10, 2020, with the resolution of Mr. Taylor’s criminal charges still on the

horizon, the Court partially lifted the stay, permitting him to proceed with the litigation of his claims

related to the incident at the RNDC. Dkt. No. 132.

Officer Qayyum and the City of New York (the “City Defendants”) filed a motion to

dismiss the complaint on December 30, 2020, arguing that because Mr. Taylor had failed to plead

his claims related to the incident at the RNDC against the City Defendants in the SAC, the City

Defendants should be dismissed from this action. See Dkt. No. 135 at 6–7. In the alternative, the

City Defendants argued that Mr. Taylor had failed to plead sufficient facts to support his claims for

excessive force and deliberate indifference to his medical condition under 42 U.S.C. § 1983 and that

he had failed to plead the existence of any municipal policy, practice, or custom sufficient to

establish liability under Monell v. Dep’t of Social Servs. of City of New York, 436 U.S. 658 (1978). Id. at 7–

12. Plaintiff filed his opposition on February 9, 2021. Dkt. No. 150. The City Defendants filed a

reply on March 22, 2021. Dkt. No. 151.

The Court granted the motion to dismiss in part, dismissing without prejudice Plaintiff’s

claim of deliberate indifference against Officer Qayyum, his municipal liability claim against the City

of New York, and his claims for intentional infliction of emotional distress against both Officer

Qayyum and the City of New York. Dkt. No. 200. The Court also granted Plaintiff leave to amend

his complaint for the third time. Id. On January 20, 2022, Mr. Taylor filed his Third Amended

Complaint (the “TAC”). Dkt. No. 210.

On June 6, 2022, the City Defendants filed this motion for summary judgment to dismiss

Plaintiff’s federal and state claims. Dkt. No. 231 (notice of motion); Dkt. No. 234 (“Ds Mem.”). In

support of the motion, the City Defendants submitted a Local Rule 56.1 Statement, Dkt. No. 233, as

well as a supporting affidavit by Assistant Corporation Counsel, Amanda Rolon. Dkt. No. 232. The

City Defendants also served a notice, pursuant to Local Rule 56.2 informing the plaintiff that,

among other things, “THE CLAIMS YOU ASSERT IN YOUR COMPLAINT MAY BE

DISMISSED WITHOUT A TRIAL IF YOU DO NOT RESPOND TO THIS MOTION by filing

sworn affidavits and other papers as required by Rule 56(e) of the Federal Rules of Civil Procedure

and by Local Civil Rule 56.1.” Dkt. No. 233 at 1.

After several extensions of time granted by the Court, on July 27, 2022, Plaintiff filed an

opposition to Defendants’ motion. Dkt. No. 252 (“Opp.”). Notwithstanding the warning to him

contained in the City Defendants’ Local Rule 56.2 notice, Mr. Taylor did not respond to the Local

Rule 56.1 statement submitted by the City Defendants. He did, however, file a short affidavit in

support of his motion. See Taylor Aff. He attached to his response a number of loose, unidentified

and unauthenticated documents. The motion was fully briefed when the City Defendants filed their

reply on September 2, 2022. Dkt. No. 259 (“Reply”).

III. LEGAL STANDARD

A. Federal Rule of Civil Procedure 56

Defendants are entitled to summary judgment on a claim if they can “show[] that there is no

genuine dispute as to any material fact and [they are] entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“[S]ummary judgment is

proper ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the

moving party is entitled to a judgment as a matter of law.’” (quoting former Fed. R. Civ. P. 56(c))).

A genuine dispute exists where “the evidence is such that a reasonable jury could return a verdict for

the nonmoving party,” while a fact is material if it “might affect the outcome of the suit under the

governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Factual disputes that are

irrelevant or unnecessary will not be counted.” Id.

The movant bears the initial burden of demonstrating “the absence of a genuine issue of

material fact,” and, if satisfied, the burden then shifts to the non-movant to present “evidence

sufficient to satisfy every element of the claim.” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.

2008) (citing Celotex, 477 U.S. at 323–24). To defeat a motion for summary judgment, the non-

movant—in this case, Plaintiff—“must come forward with ‘specific facts showing that there is a

genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

(quoting Fed. R. Civ. P. 56(e)). “[M]ere speculation or conjecture as to the true nature of the facts”

will not suffice. Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v. Atex, Inc., 68

F.3d 1451, 1456 (2d Cir. 1995)). A plaintiff “must do more than simply show that there is some

metaphysical doubt as to the material facts,” Matsushita, 475 U.S. at 586, and “may not rely on

conclusory allegations or unsubstantiated speculation,” Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d

423, 428 (2d Cir. 2001) (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)).

In determining whether there exists a genuine dispute as to a material fact, the Court is

“required to resolve all ambiguities and draw all permissible factual inferences in favor of the party

against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012)

(quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)). The Court’s job is not to “weigh the

evidence or resolve issues of fact.” Lucente v. IBM Corp., 310 F.3d 243, 254 (2d Cir. 2002); see also

Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996) (“In applying th[e] [summary

judgment] standard, the court should not weigh evidence or assess the credibility of witnesses.”).

“Assessments of credibility and choices between conflicting versions of the events are matters for

the jury, not for the court on summary judgment.” Jeffreys v. City of New York, 426 F.3d 549, 553–54

(2d Cir. 2005) (quoting Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996)). “[T]he judge must ask

. . . not whether . . . the evidence unmistakably favors one side or the other but whether a fair-

minded jury could return a verdict for the plaintiff on the evidence presented.” Id. at 553 (quoting

Anderson, 477 U.S. at 252); see also Battino v. Cornelia Fifth Ave., LLC, 861 F. Supp. 2d 392, 400

(S.D.N.Y. 2012) (“To avoid summary judgment, all that is required of the non-moving party is a

showing of sufficient evidence supporting the claimed factual dispute as to require a . . . jury’s

resolution of the parties’ differing versions of the truth.” (citing Kessler v. Westchester Cnty. Dep’t of Soc.

Servs., 461 F.3d 199, 206 (2d Cir. 2006))).

Where, as here, the party opposing summary judgment is proceeding pro se, the Court must

construe that party’s submissions “liberally and interpret them to raise the strongest arguments that

they suggest.” Corcoran v. N.Y. Power Auth., 202 F.3d 530, 536 (2d Cir. 1999) (internal quotation

marks and citation omitted). “It is well established that a court is ordinarily obligated to afford a

special solicitude to pro se litigants,” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010), “particularly

where motions for summary judgment are concerned,” Jackson v. Fed. Express, 766 F.3d 189, 195 (2d

Cir. 2014); accord Harris v. Miller, 818 F.3d 49, 57 (2d Cir. 2016). Proceeding pro se, however, “does

not . . . relieve [a pro se party opposing summary judgment] from the usual requirements of”

opposing such a motion. Fitzpatrick v. N.Y. Cornell Hosp., No. 00-cv-8594, 2003 WL 102853, at *5

(S.D.N.Y. Jan. 9, 2003).

B. Local Rule 56.1

Local Civil Rule 56.1 of the Southern and Eastern Districts of New York sets forth specific

requirements about how the facts relied upon by the moving party and disputed by the opposing

party are to be presented. A party moving for summary judgment must annex to its notice of

motion “a separate, short and concise statement, in numbered paragraphs, of the material facts as to

which the moving party contends there is no genuine issue to be tried.” L.R. 56.1(a). Local Rule

56.1(b) requires the party opposing the motion to “include a correspondingly numbered paragraph

responding to each numbered paragraph in the statement of the moving party, and if necessary,

additional paragraphs containing a separate, short and concise statement of additional material facts

as to which it is contended that there exists a genuine issue to be tried.” L.R. 56.1(b). All statements

made in a Local Rule 56.1 statement “must be followed by citation to evidence which would be

admissible.” L.R. 56.1(d). “Each numbered paragraph in the statement of material facts set forth in

the statement required to be served by the moving party will be deemed to be admitted for purposes

of the motion unless specifically controverted by a correspondingly numbered paragraph in the

statement required to be served by the opposing party.” L.R. 56.1(c).

Pro se litigants must also comply with Local Rule 56.1. Local Rule 56.2 “plays a valuable role

in alerting pro se litigants to the potentially serious consequences of a motion for summary judgment,

and to the requirements for opposing such a motion.” L.R. 56.2 Committee Note. Under Local

Rule 56.2, “[i]f the moving party seeks summary judgment against a pro se litigant, the moving party

is also required to notify the pro se litigant of the requirements of Rule 56 and Local Civil Rule 56.1.”

Wali v. One Source Co., 678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009). “Pro se litigants are then not

excused from meeting the requirements of Local Rule 56.1.” Id. (citing Vt. Teddy Bear Co. v. 1–800–

BEARGRAM Co., 373 F.3d 241, 246 (2d Cir. 2004)).

While Local Rule 56.1 provides that the failure to respond to an asserted fact results in the

fact being “deemed to be admitted for purposes of the motion,” a 56.1 statement “is not itself a

vehicle for making factual assertions that are otherwise unsupported in the record.” Giannullo v. City

of New York, 322 F.3d 139, 140 (2d Cir. 2003) (quoting Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 74

(2d Cir. 2001)). “[I]n determining whether the moving party has met this burden of showing the

absence of a genuine issue for trial, the district court may not rely solely on the statement of

undisputed facts contained in the moving party’s Rule 56.1 statement. It must be satisfied that the

citation to evidence in the record supports the assertion.” Vt. Teddy Bear Co., 373 F.3d at 244.

“Where . . . the record does not support the assertions in a Local Rule 56.1 statement, those

assertions should be disregarded and the record reviewed independently.” Holtz, 258 F.3d at 74. “A

party who declines to respond to a Rule 56.1 statement in the proper form eschews its right to have

the Court search the record to determine whether the allegedly undisputed fact is in fact disputed.”

Keawsri v. Ramen-Ya Inc., No. 17-CV-2406 (LJL), 2021 WL 3540671, at *3 (S.D.N.Y. Aug. 10, 2021)

(citing Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001)).

“[W]here a pro se plaintiff fails to submit a proper Rule 56.1 statement in opposition to a

summary judgment motion, the Court retains some discretion to consider the substance of the

plaintiff’s arguments, where actually supported by evidentiary submissions.” Wali, 678 F. Supp. 2d

at 178 (citing Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001)). “A court has broad

discretion to overlook a failure to comply with Local Rule 56.1 and may choose instead to conduct

its own ‘assiduous review of the record.’ For example, that authority can and has been exercised on

behalf of pro se litigants.” Keawsri, 2021 WL 3540671, at *3 (quoting Holtz, 258 F.3d at 73).

The Court will not treat Plaintiff’s failure to respond to the defendants’ 56.1 statement as an

admission of the facts asserted in that statement. The Court’s decision is driven by the fact that the

record evidence clearly contradicts the narrative presented by the defendants in that statement. Mr.

Taylor presented an affidavit in support of his opposition in which he asserts that Officer Qayyum’s

use of force was not provoked by any threat by Mr. Dorsey or any other inmate. The defendants

entirely overlook Mr. Taylor’s affidavit in their reply briefing. Moreover, although one of the

documents submitted by the defendants in support of their motion was the transcript of the

plaintiff’s deposition, the defendants ignore evidence in it that contradicts their preferred narrative.

The defendants’ 56.1 statement cites to his deposition as source materials for certain of the

assertions contained in it. See, e.g., Defs. 56.1 ¶ 10. Therefore, to satisfy its obligation “to be

satisfied that the citation to evidence in the record supports the assertion” in the 56.1 statement, the

Court reviewed the deposition transcript. Vt. Teddy Bear Co., 373 F.3d at 244. Mr. Taylor’s

deposition is short—only 106 pages long. A review of the transcript of Mr. Taylor’s testimony

revealed the narrative detailed above, which conflicts substantially with the narrative promoted by

the defendants.

As a result, the Court has exercised its discretion to excuse Mr. Taylor’s failure to comply

with Local Rule 56.1 in connection with this motion, and has, instead, undertaken its own assiduous

review of the record. In this instance, it would be unjust to treat the narrative presented in the

defendants’ 56.1 statement as admitted merely because Mr. Taylor—a pro se litigant—failed to

respond to it. The Court knows that admissible evidence—Mr. Taylor’s sworn deposition testimony

and his affidavit—contradicts many of the assertions in the defendant’s 56.1 statement. To ignore

knowingly Mr. Taylor’s sworn testimony would—at least—be inconsistent with the special solicitude

due to pro se litigants.

In its review of the record, the Court has not considered the content of the January 27, 2016

“Inmate Voluntary Statement” by Mr. Dorsey that was provided to the Court by the defendants.

Rolon Aff. Ex. F. That document is witnessed, but is unsworn, and does not contain a declaration

pursuant to 28 U.S.C. § 1746. Therefore, it is inadmissible hearsay that should not be considered by

the Court in the context of this motion for summary judgment. See LeBoeuf, Lamb, Greene & MacRae,

L.L.P. v. Worsham, 185 F.3d 61, 65 (2d Cir. 1999).3

3 The Court observes that, as with Mr. Taylor’s deposition, the defendants have been very selective in their presentation

of the facts in this document. They fail to present in their 56.1 statement, or to acknowledge in their briefing, the facts

contained in it that are inconsistent with the narrative that they have presented to the Court. The defendants cite to Mr.

Dorsey’s statement to support the proposition that an inmate was lying on the floor in the corridor before the incident

and that Mr. Dorsey cursed at Officer Qayyum. Defs. 56.1 ¶¶ 4. 10. The defendants did not present to the Court other

parts of the statement that are inconsistent with their preferred narrative, such as the following statement by Mr. Dorsey:

“I then said Oh Sh*t, Oh Sh*t, when I was approached by C.O. Qayyum . . . and told to shut the f**k up ***hole. I

replied, my father’s been dead thirty yrs, who you talking to like that. C.O. Qayyum . . . looked me dead in my eyes; and

then commenced to spray me with MK9. He sprayed three blasts, that was so profuse, that everyone in the area (staff

included) was affected by this deadly chemical agent.” The statement in the document contradicts the defendants’

assertion that Officer Qayyum sprayed just once, and arguably supports Mr. Taylor’s narrative that Officer Qayyum

acted at least precipitously, and arguably maliciously, when he sprayed Mr. Dorsey. The Court does not consider the

facts in the document at all for purposes of this opinion, but believes that the defendants’ selective presentation of the

information contained in the source materials underlying their 56.1 statement is worthy of note.

IV. DISCUSSION

The defendants move for summary judgment with respect to Mr. Taylor’s claims arising

from the January 25, 2016 incident. First, they argue that the undisputed facts do not support Mr.

Taylor’s claim against Officer Qayyum for the use of excessive force against him, and that, in any

event, Officer Qayyum is entitled to qualified immunity. Second, they contend that because Mr.

Taylor has failed to plead compliance with New York’s notice of claim requirements that his state

law claims should be dismissed. The Court takes up each argument in turn below.

A. Excessive Force Claim Against Officer Qayyum

i. Legal Standard

“Section 1983 provides a civil claim for damages against any person who, acting under color

of state law, deprives another of a right, privilege or immunity secured by the Constitution or the

laws of the United States.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999) (citations omitted).

“Analysis of a claim for use of excessive force begins with ‘identification of the specific

constitutional right allegedly infringed by the challenged application of force.’” Wright v. Goord, 554

F.3d 255, 268 (2d Cir. 2009) (brackets omitted) (quoting Graham v. Connor, 490 U.S. 386, 394 (1989)).

“While the Eighth Amendment’s protection does not apply ‘until after conviction and sentence,’ the

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) (citation omitted) (quoting Graham, 490 U.S at 392 n.6). As a pretrial detainee, Plaintiff’s

excessive force claim arises under the Fourteenth Amendment.

To succeed in an excessive force claim under the Fourteenth Amendment, a pretrial detainee

like Mr. Taylor must first show that the defendant used force “purposefully, knowingly, or (perhaps)

recklessly.” Edrei v. Maguire, 892 F.3d 525, 534 (2d Cir. 2018) (citing Kingsley v. Hendrickson, 576 U.S.

389, 395–96 (2015)). This is because “accidental or negligent acts are not subject to Fourteenth

Amendment liability.” Id.

A pretrial detainee must then show that “the force purposely or knowingly used against him

was objectively unreasonable.” Kingsley, 576 U.S. at 397. “A court (judge or jury) cannot apply this

standard mechanically. Rather, objective reasonableness turns on the ‘facts and circumstances of

each particular case.’” Id. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)) (internal citation

omitted). The determination whether given conduct was objectively reasonable must be made by

the court “from the perspective of a reasonable officer on the scene,” accounting for the “legitimate

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

detained . . . .” Id. (quoting Bell v. Wolfish, 441 U.S. 520, 540 (1979)). The Supreme Court identified

six non-exhaustive considerations that “may bear on the reasonableness or unreasonableness of the

force used: [(1)] the relationship between the need for the use of force and the amount of force

used; [(2)] the extent of the plaintiff’s injury; [(3)] any effort made by the officer to temper or to limit

the amount of force; [(4)] the severity of the security problem at issue; [(5)] the threat reasonably

perceived by the officer; [(6)] and whether the plaintiff was actively resisting.” Id.

Judge Carter has observed that “granting summary judgment against plaintiffs on excessive

force claims is rarely appropriate.” Anderson v. City of New York, No. 1:16-cv-02583 (ALC), 2019 WL

1426723, at *8 (S.D.N.Y. Mar. 28, 2019) (citing Amnesty America v. Town of W. Hartford, 361 F.3d 113,

123 (2d Cir. 2004)). That is unsurprising because whether a “use of force was” justified is a “fact

intensive inquiry” that often must be “left for a jury to decide.” Olutosin v. Lee, No. 14-cv-685

(NSR), 2016 WL 2899275, at *9 (S.D.N.Y. May 16, 2016) (quoting Landy v. Irizarry, 884 F. Supp.

788, 797 (S.D.N.Y. 1995) (collecting cases)). And as noted, “[a]ssessments of credibility and choices

between conflicting versions of the events are matters for the jury, not for the court on summary

judgment.” Anderson, 2019 WL 1426723, at *8 (quoting Rule, 85 F.3d at 1011). For those reasons,

“[c]ourts are hesitant ‘to dismiss complaints alleging excessive force even at the summary judgment

stage if conflicts exist in the record regarding the degree and justification of force.’” Id. (quoting

Atkins v. County of Orange, 372 F. Supp. 2d 377 (S.D.N.Y. 2005)); see also Jeanty v. Cty. of Orange, 379 F.

Supp. 2d 533, 541 (S.D.N.Y. 2005) (quoting Evering v. Rielly, No. 98-cv-6718 (DB), 2001 WL

1150318, at *7 (S.D.N.Y. Sept. 28, 2001) (collecting cases)).

ii. Application

Disputed issues of material fact preclude the entry of summary judgment against Mr. Taylor

with respect to his excessive force claim. Officer Qayyum intentionally sprayed mace and directed it

toward Mr. Dorsey, and then, as Mr. Dorsey moved to avoid the spray, toward Mr. Taylor. His use

of force was deliberate and not accidental.

Whether Officer Qayyum intended to harm Mr. Taylor in particular is immaterial for

purposes of this analysis. It is undisputed that the officer intentionally and knowingly deployed his

spray. His can of spray did not “go[] off by accident.” Kingsley, 576 U.S. at 396. Because Mr.

Taylor’s claim arises under the Fourteenth Amendment, the question then is whether the

defendant’s intentional or knowing use of force was objectively reasonable, not whether the officer

subjectively intended to harm his victim.4

4 The defendants conflate the two parts of the test under Kingsley. And some recent district court opinions, including

that by Judge Amon in Brown v. New York City Dep’t of Corr., No. 16-cv-6077 (CBA)(LB), which is discussed below, seem

to have embraced reasoning that adopts the argument advanced by the defendants. In Brown, for example, while

acknowledging that Officer Qayyum intentionally sprayed the inmates to end a fight, Judge Amon wrote that “Qayyum’s

spraying of Brown in addition to Dorsey was, if anything, negligent, and the Supreme Court has made clear that ‘liability

for negligently inflicted harm is categorically beneath the threshold of constitutional due process.’ Kingsley, 135 S. Ct. at

2472.” Brown, Memorandum & Order, Dkt. No. 99 (E.D.N.Y Mar. 18, 2020), at 15. But this analysis is hard to

reconcile with the analytical framework for an excessive force claim under the Fourteenth Amendment. “[E]xcessive

force claims involve two separate state-of-mind questions.” Edrei, 892 F.3d at 534 (internal quotation omitted). “The

first concerns the official’s state of mind with respect to his physical acts.” Id. “Accidental or negligent physical acts are

not subject to Fourteenth Amendment liability while those committed purposefully, knowingly, or (perhaps) recklessly

are.” Id. (emphasis added): see also Kingsley, 576 U.S. at 396 (“Thus, if an officer’s Taser goes off by accident or if an

officer unintentionally trips and falls on a detainee, causing him harm, the pretrial detainee cannot prevail on an

excessive force claim. But if the use of force is deliberate—i.e., purposeful or knowing—the pretrial detainee’s claim

may proceed.”). “The second mental state . . . concerns the defendant’s state of mind with respect to whether his use of

force was excessive.” Id. (internal quotations omitted). Kingsley—as amplified by the Second Circuit in Edrei—makes

clear that the question is whether the physical act constituting the use of force was intentional; not whether the force used

And a reasonable jury could find that the force intentionally employed by Officer Taylor was

objectively unreasonable. As a result of the Officer Qayyum’s act, Mr. Taylor suffered from burning

eyes and skin for days. See Tracy v. Freshwater, 623 F.3d 90, 98 (2d Cir. 2010) (“Unquestionably,

infliction of pepper spray on an arrestee has a variety of incapacitating and painful effects, and, as

such, its use constitutes a significant degree of force.”) (internal citation omitted).

Most importantly, on the facts presented by Mr. Taylor, the provocation for Officer

Qayyum’s use of force was disproportionate to the amount of force used. Mr. Dorsey cursed at the

officer. But Mr. Dorsey did not threaten the officer: his hands were down, and he did not approach

the officer. Mr. Dorsey and the other inmates in the corridor had not disobeyed any order by

Officer Qayyum or any other correction officer. Officer Qayyum sprayed the inmates without

warning or any attempt at an alternative use of force. On the facts recounted by Mr. Taylor, a

reasonable jury could conclude that Officer Qayyum’s use of force was objectively unreasonable.

The defendant’s argument that this Court should reach the same conclusion as Judge Amon

in Brown v. New York City Dep’t of Corr., No. 16-cv-6077 (CBA)(LB) does not have merit. In Brown,

Judge Amon entered summary judgment in favor of Officer Qayyum in a suit brought by another

inmate caught up in the January 25, 2016 spraying incident. Brown, Memorandum & Order, Dkt.

No. 99 (E.D.N.Y Mar. 18, 2020). But the undisputed facts presented to Judge Amon in Brown

painted a very different picture of the incident than Mr. Taylor describes in his affidavit and

deposition testimony. In Brown, Officer Qayyum was acting to break up a fight between Mr. Dorsey

and another inmate, and Mr. Dorsey failed to comply with Officer Qayyum’s orders “aimed at

was intended to cause a particular degree of harm to a particular victim. The defendants’ arguments conflate the two

steps. Some courts also appear to have followed suit and to have merged the two steps outlined in Kingsley in their

analysis of cases involving second-hand exposure to mace by pretrial detainees. This Court does not believe that

approach to be consistent with Kingsley and Edrei. An intentional physical act that harms an unintended victim is

actionable under Kingsley.

deescalating the situation.” Brown at 10. And the injuries suffered by the plaintiff in Brown “were not

severe.” Id. at 16.

On that record, Judge Amon was able to conclude that “no reasonable juror could find that

Qayyum’s response to the threat presented by inmate Dorsey and the crowd of other inmates was

objectively unreasonable.” Id. at 15. But on the facts that the Court must accept for purposes of

this motion, Mr. Dorsey and the “crowd of other inmates,” including Mr. Taylor, did not present a

threat to Officer Qayyum. Simply put, the Court must decide this motion based on the facts

presented to it in connection with this motion, not those presented to another court in a different

case.

B. Qualified Immunity

i. Legal Standard

Officer Qayyum is not entitled to qualified immunity. Qualified immunity is a judge-made

doctrine that “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) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). The doctrine “balances two important interests—the need to hold public

officials accountable when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.” Id.

“[T]he familiar standards that govern resolution of motions for summary judgment apply

equally to such motions based on an assertion of qualified immunity.” Sloley v. Vanbramer, 945 F.3d

30, 36 (2d Cir. 2019) (citing Tolan v. Cotton, 572 U.S. 650, 656-57 (2014)). Courts “evaluate claims of

qualified immunity at summary judgment using a two-part inquiry: (1) ‘whether the facts, taken in

the light most favorable to the party asserting the injury, show the officer’s conduct violated a

federal right’ and (2) ‘whether the right in question was clearly established at the time of the

violation.’” Id. (quoting Tolan, 572 U.S. at 656). “Courts have discretion in deciding the order in

which to analyze the two prongs but under either, they ‘may not resolve genuine disputes of’

material fact.” Id. (quoting Tolan, 572 U.S. at 656 and citing Pearson, 555 U.S. at 236).

“‘Clearly established’ means that, at the time of the officer’s conduct, the law was sufficiently

clear that every reasonable official would understand that what he is doing is unlawful.” Dist. of

Columbia v. Wesby, 583 U.S. 48, 63 (2018) (quotation omitted). “[E]xisting law must have placed the

constitutionality of the officer’s conduct beyond debate.” Id. (quotation omitted). “This demanding

standard protects all but the plainly incompetent or those who knowingly violate the law.” Id.

(quotation omitted). The Supreme Court has “repeatedly stressed that courts must not define clearly

established law at a high level of generality, since doing so avoids the crucial question whether the

official acted reasonably in the particular circumstances that he or she faced.” Id. at 63-64 (quotation

omitted).

Qualified immunity protects an officer so long as “it was objectively reasonable for the

officer to believe the conduct at issue was lawful.” Mudge v. Zugalla, 939 F.3d 72, 79 (2d Cir. 2019)

(quoting Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013)). “An officer is entitled to

qualified immunity if any reasonable officer, out of the wide range of reasonable people who enforce

the laws in this country, could have determined that the challenged action was lawful.” Muschette v.

Gionfriddo, 910 F.3d 65, 70 (2d Cir. 2018) (quoting Figueroa v. Mazza, 825 F.3d 89, 100 (2d Cir. 2016)).

ii. Analysis

Officer Qayyum is not entitled to qualified immunity. The Court has determined that, taking

the facts in the light most favorable to Mr. Taylor, there is adequate record evidence to preclude

summary judgment on his claim for violating his Fourteenth Amendment rights. On the facts

presented to the Court, Officer Qayyum deployed his mace with no provocation other than the fact

that an inmate had cursed at him. The inmate had not resisted commands or acted threateningly.

No reasonable officer could have determined that it was appropriate to deploy his mace at an inmate

directly in the face without warning merely because the inmate cursed at him, without any other

accompanying threatening actions, where the inmate had not failed to comply with commands

issued by the officer. It is clearly established that pepper spraying a restrained or cooperative person

is excessive. Tracy v. Freshwater, 623 F.3d 90, 98-99 & n.5 (2d Cir. 2010) (“[I]t [is] well established . . .

that the use of entirely gratuitous force is unreasonable and therefore excessive, . . . [so] no

reasonable officer could have believed that he was entitled to use pepper spray gratuitously against a

restrained and unresisting arrestee” (citations omitted)). On the facts presented by Mr. Taylor, Mr.

Dorsey, Mr. Taylor and the other inmates in the corridor were not disobeying the officer or resisting

his commands.

The defendants’ argument regarding the application of qualified immunity is very thin. After

reciting the basic legal principles, it consists merely of the following three sentences:

As discussed above, there is no evidence to suggest that defendant Qayyum’s use of

a chemical agent in response to a security threat was objectively unreasonable.

Indeed, it was not. Moreover, defendant Qayyum did not violate a clearly

established law prohibiting the use of chemical agent spray in the particular

circumstances before him.

Defs. Mem. at 10.

The argument rests on the defendants’ failure to acknowledge Mr. Taylor’s version of the

events at issue, and their selective presentation of the record. As described above, there is evidence

that supports the conclusion that Officer Qayyum’s conduct was objectively unreasonable. Indeed,

in Mr. Taylor’s account of events, there was no security threat that justified it. Perhaps because the

defendants’ argument rests on a one-sided presentation of the evidence, their brief presents no

substantive argument regarding whether or not Officer Qayyum’s conduct as described by Mr.

Taylor violated clearly established law. The Court is not required to develop an argument to

support a finding of qualified immunity that was not presented to it by the defendants’ counsel.

C. State Claims

i. Legal Standard

The Court cannot grant the defendants summary judgment with respect to Mr. Taylor’s state

law claims because he testified in his deposition that he filed a timely notice of claim. Under New

York law, a notice of claim is a condition precedent to bringing a tort claim against a municipality

and any of its officers, agents, or employees. N.Y. Gen. Mun. Law §§ 50-e(1), 50-i(1); C.S.A.

Contracting Corp. v. N.Y. City Sch. Constr. Auth., 833 N.E.2d 266, 268 (N.Y. 2005); see also Fincher v. Cty.

of Westchester, 979 F. Supp. 989, 1002 (S.D.N.Y. 1997); Rose v. Cty. of Nassau, 904 F. Supp. 2d 244,

247–48 (E.D.N.Y. 2012). “The purpose of the notice-of-claim requirement is to afford the

municipality an adequate opportunity to investigate the claim in a timely and efficient manner and,

where appropriate, to settle claims without the expense and risks of litigation.” Hardy v. N.Y. City

Health & Hosp. Corp., 164 F.3d 789, 794 (2d Cir. 1999) (quoting Fincher, 979 F. Supp. at 1002). “The

notice of claim must provide, among other things, the nature of the claim and must be filed within

ninety days after the claim arises.” Rose, 904 F. Supp. 2d at 248 (citing N.Y. Gen. Mun. Law § 50-e).

“In addition, the plaintiff must plead in his complaint that: (1) he 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 satisfy the claim.”

Id. (citing § 50-i). “‘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.” Tulino v. City of New York, No. 15-cv-7106 (JMF), 2016 WL 2967847, at *3 (S.D.N.Y.

May 19, 2016) (quoting AT&T Co. v. N.Y.C. Dep’t of Human Res., 736 F. Supp. 496, 499 (S.D.N.Y.

1990) (collecting cases)).

The notice-of-claim requirement does not apply to federal claims brought under Section

1983. See, e.g., Bordeau v. Metro. Transit Auth., No. 06-cv-6781-DLI, 2008 WL 4455590, at *1

(E.D.N.Y. Sept. 30, 2008). However, “in a federal court, state notice-of-claim statutes apply to

state-law claims.” Hardy, 164 F.3d at 793 (emphasis in original) (citation omitted); see also Cruz v. City

of New York, 232 F. Supp. 3d 438, 448 (S.D.N.Y. 2017) (quoting Fincher, 979 F. Supp. at 1002) (“The

notice of claim requirements apply equally to state tort claims brought as pendent claims in a federal

civil rights action.”).

ii. Application

There is a disputed issue of material fact regarding whether Mr. Taylor filed a notice of

claim. In his deposition testimony, Mr. Taylor asserts that he filed a timely notice of claim. Taylor

Dep. 9:19-10:21.5 And as part of his opposition, Mr. Taylor has presented an October 27, 2016

letter from the Legal Aid Society in which a paralegal confirmed the filing of a notice of claim with

the Office of the New York City Comptroller. Opp. at 10. That letter does not establish the date of

the filing of the notice of claim. Nor does it indicate that the January 25, 2016 incident was within

the scope of the notice that it describes. Id. However, the letter provides some support for the clear

testimony by Mr. Taylor in his deposition that he did file a timely notice of claim with the

Comptroller. Because there is a disputed issue of material fact regarding whether Mr. Taylor filed a

timely notice of claim, the Court must deny the defendants’ motion for summary judgment with

respect to Plaintiff’s state law claims.

The Court pauses to note an unusual aspect of the defendants’ briefing on this topic. The

defendants’ motion is framed as a motion for summary judgment. The legal standard described in

their briefing is the standard that applies to a motion brought under Rule 56 of the Federal Rules of

5 “Q. Did you file a Notice of Claim for the alleged 20 January 25th, 2016 incident? A. Yes, I did. Q. Did you file a

Notice of Claim with the Comptroller’s office? A. Yes. Q. Do you remember when you filed the Notice of Claim? A.

I’m not sure exactly. It was -- I think it was probably a month there after the incident. Q. And what process did you

follow or take to file that Notice of Claim? A. I filed a Notice of Claim by way of certified mail I believe, if I’m not

mistaken. Q. And was that addressed to the Comptroller’s office or somewhere else? A. To the Comptroller’s office.

And I also filed a complaint to the Prisoners’ Rights Project, which they filed a Notice.”

Civil Procedure. See Defs. Mem. at 3-4. And the defendants include in their 56.1 statement an

assertion that the notice of claim was never filed. Defs. 56.1 ¶ 23. As a result, the Court has

evaluated the motion as one brought for summary judgment under Rule 56 and has evaluated the

record to determine whether there is a disputed issue of material fact regarding the filing of a notice

of claim—there is.

However, in the memorandum filed in support of the motion, the defendants argue that

judgment should be entered in their favor on this issue not because the undisputed facts support the

conclusion that Mr. Taylor never filed a notice of claim, but rather because “the TAC does not

allege that a Notice of Claim was filed for this incident at any point, let alone within 90 days of the

alleged incident.” Defs. Mem. at 5. This is an argument regarding the sufficiency of the pleadings,

not one regarding the sufficiency of the evidence. A motion testing the sufficiency of the pleadings

should be brought under Rule 12 of the Federal Rules of Civil Procedure, not Rule 56. The

defendants did not raise this argument in their previous motion to dismiss. And they did not alert

the pro se litigant that their motion with respect to this issue was brought under Rule 12. The Court

does not take a position regarding whether the defendants’ might still seek to challenge the

sufficiency of the plaintiff’s pleadings under Federal Rule of Civil Procedure 12(c). However, the

Court declines to convert sua sponte the defendants’ motion for summary judgment into a motion for

judgment on the pleadings, given that Mr. Taylor is proceeding pro se and was not provided notice of

such a motion.6

V. CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment is DENIED.

6 The defendants argue that “even if plaintiff could amend the complaint for a fourth time, he could not cure this failure

[to file a timely notice of claim].” Defs. Mem. at 5. In evaluating any argument that such an amendment would be futile,

the Court would be required to consider Mr. Taylor’s testimony at his deposition that he did file a timely notice of claim.

The Court requests that counsel for the City Defendants provide Plaintiff with copies of

unpublished cases cited in this decision pursuant to Local Rule of the United States District Courts

for the Southern and Eastern Districts of New York 7.2.

The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order

would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal.

See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

The Clerk of Court is directed to mail a copy of this order by first class mail to Plaintiff and

to terminate the motion pending at Dkt. No. 231.

SO ORDERED.

Dated: August 17, 2023 A tis A

New York, New York Cocos H. WOODS

United States District Judge

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