# Williams, Jr. v. City of New York

> District Court, S.D. New York · August 28, 2024

URL: https://www.frixlaw.com/law-library/cases/10662156

## Case

- **Court:** District Court, S.D. New York
- **Decided:** August 28, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10662156

## How later opinions describe it (automated extraction)

- noting the “common-law rule . . . that a supervisor is liable if he directs or permits tortious conduct by those under his supervision or fails to exercise proper control over them.” (internal quotation marks omitted)

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ALEXANDER WILLIAMS, JR.,
Plaintiff,
23-CV-2700 (JPO)
-v-
OPINION AND ORDER
CITY OF NEW YORK, et al.,
Defendants.

J. PAUL OETKEN, District Judge:
Plaintiff Alexander Williams, Jr. brings this action asserting claims for unlawful
conditions of confinement, denial of access to counsel, and retaliation for protected speech while
he was a pretrial detainee at the George R. Vierno Center (“GRVC”) on Rikers Island. Before
the Court is Defendants’ joint motion to dismiss all counts pursuant Rule 12(b)(6) of the Federal
Rules of Civil Procedure. (ECF No. 31.) For the reasons that follow, the motion to dismiss is
granted in part and denied in part.
I. Background
The following facts are drawn from Plaintiff’s Amended Complaint, (ECF No. 7
(“AC”))1 and are presumed true for purposes of this opinion. All reasonable inferences are
drawn in Plaintiff’s favor. Fink v. Time Warner Cable, 714 F.3d 739, 740-41 (2d Cir. 2013).
A. The Judicial Lockdown and Command Level Orders
On January 18, 2023, Judge Vincent Del Giudice of the New York Supreme Court
entered a Judicial Lockdown Order (“JLO”), finding that Plaintiff had threatened witnesses and
engaged in other concerning conduct, and mandating that Plaintiff be subject to restricted

1 Because the Amended Complaint is not paginated, this opinion refers to paragraphs
where possible, and otherwise refers to the page of the filed PDF document.
housing and visitation. (AC at 80-82 (Exhibit K).) Specifically, the JLO required that Plaintiff
“be housed in a highly secure area . . . on a 23 hour lock-in status daily,” “be separated from all
other inmates,” be “barred from having any visits other than with his attorney[s] . . . or his
investigators,” and be “precluded from making any telephone calls other than to his

attorney[s] . . . or his investigators.” (Id.)
The JLO was implemented via a generic Command Level Order (“CLO”) authorized by
the Warden and effective since July 19, 2021. (AC at 36-42 (Exhibit A).) The CLO serves to
“establish policy and procedures for the Care, Custody and Control of the inmates under Court
Order lockdown status.” (Id. at 37.) Regarding general procedures, the CLO requires 23-hour
“lock-in, feed-in status,” and restricts the property that inmates are “allowed to possess . . . in
their cell.” (Id.) Regarding security, the CLO requires that only one inmate subject to lockdown
“be allowed out of his cell at any one time,” that inmates “be restrained in leg irons, wrist chains
and mitts,” that inmates be regularly strip searched, and that inmates “not be permitted to refuse
to attend court because of complaints of health problems unless the physician examine [sic] this

defendant certifies in writing that the attendance . . . would likely result in serious impairment
to . . . health.” (Id. at 38.) Regarding outside contact, the CLO bars inmates “from Visits and
Telephone calls to anyone other than their attorney of record.” (Id. at 39.) And, regarding
“Medical/Mental Health Services,” the CLO provides that “[a]ny necessary medical or mental
health services are to be provided to these inmates in the housing area,” and that “[t]hey will not
be removed to go to the Clinic unless it is physically impossible to provide them with necessary
medical services in the cell/housing area.” (Id. at 40.) The CLO provides for hospitalization at
Bellevue Hospital in the event of a “medical emergency.” (Id. at 41.)
After the JLO was issued on January 18, 2023, the Deputy Warden of GVRC (Defendant
Matos) issued a “Security Memorandum” applying the general terms of the 2021 CLO to four
inmates, including Plaintiff. (AC at 74 (Exhibit L) (“Memorandum”).) That Memorandum
determined that Plaintiff was “[p]rohibited form [sic] having any visits other than his

attorney[s] . . . or his investigators . . . .” (Id.)
B. Plaintiff’s Medical Concerns
Plaintiff details a variety of medical concerns. They include: a painful condition
affecting his left foot for which he has received physical therapy and for which a GRVC doctor
recommended surgery (AC ¶¶ 37, 39); rectal pain due to hemorrhoids for which he was due to
receive corrective surgery (AC ¶¶ 5-6); mental health issues including depression and thoughts
of suicide (AC at 101 (Exhibit T)); and an acute reaction to exposure to “[c]hemical agents” after
a nearby inmate was sprayed with pepper spray (AC ¶¶ 7, 9-14). Plaintiff alleges that he was
denied treatment for all of these conditions. (AC ¶ 6 (denial of access to routine care); ¶¶ 7-14
(chemical exposure incident).)

C. Plaintiff’s Concerns Related to Access to Legal Counsel
Although the Security Memorandum expressly permitted Plaintiff to receive visits from
his attorneys, Plaintiff alleges that he was prevented from communicating with them. (See, e.g.,
AC ¶¶ 21, 22, 26.) For example, Plaintiff alleges that a scheduled video visit on March 1, 2023
with his counsel was cut short after five minutes, and that Defendant Lindsey-Smith stated to
him “I [don’t] have to make sure you see your attorney[s].” (AC ¶ 29.) Plaintiff alleges that on
March 9, 2023, he requested a call with his counsel in order to “prepare in his [m]urder trial,” but
that Defendant Matos responded that she did not “give a fuck about your attorney and your trial
outcome you sued me and published a book about my facility” before denying his request.
(AC ¶ 27.) On March 15, 2023, Plaintiff alleges, Defendant Griffin told him that he would not
allow Plaintiff to speak with his attorneys until after he was convicted because “plaintiff had
named him in a lawsuit.” (AC ¶ 31.) Plaintiff alleges that these denials induced him to ask his
attorneys to settle his pending criminal case “because he was [afraid] that the restriction on the
communication with these attorney[s] [was] placing a [substantial] amount of burden on his

matters [and] would end in an unfavorable manner.” (AC ¶ 26.)
D. Plaintiff’s Concerns Related to Religious Observance
Plaintiff alleges in the Amended Complaint that he is a “Known Jewish Observer” who
was prohibited from practicing his faith due to the CLO. However, Plaintiff expressly abandons
these claims in his Opposition to the Motion to Dismiss. (ECF No. 37 (“Opp.”) at 16.)2
II. Legal Standards
A. Motion to Dismiss Under Rule 12(b)(6)
Rule 12(b)(6) authorizes a district court to dismiss a complaint for “failure to state a
claim upon which relief can be granted.” To survive a motion to dismiss for failure to state a
claim, a complainant must state “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
This means that a complaint is properly dismissed where “the allegations in a complaint,
however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 558. A
complaint is also properly dismissed “where the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 679. Plaintiff must also

2 As with the Amended Complaint, the Opposition is not paginated. This opinion
accordingly refers to the page of the filed PDF document.
make “specific factual allegations against the individual defendants,” and may not “rely on group
pleading.” Bertuglia v. City of New York, 839 F. Supp. 2d 703, 723 n.4 (S.D.N.Y. 2012).
In assessing the sufficiency of the complaint, a court may consider “any written
instrument attached to it as an exhibit, materials incorporated in it by reference, and documents

that, although not incorporated by reference, are integral to the complaint.” Sira v. Morton, 380
F.3d 57, 67 (2d Cir.2004) (citations and internal quotation marks omitted). “Integral” documents
are those “either in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in
bringing suit.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002) (quoting Brass
v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993)). In order for a document to be
“integral,” however, a plaintiff must actually have relied on its terms and effect in drafting the
complaint; mere possession or notice is not enough. Id.
Plaintiff is proceeding pro se. “It is well established that the submissions of a pro se
litigant must be construed liberally and interpreted to raise the strongest arguments that they
suggest.” Meadows v. United Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020). “Nonetheless, a pro

se complaint must state a plausible claim for relief.” Id. “In pro se cases, a court may consider
new allegations raised by the plaintiff in opposition to a motion to dismiss.” Rodriguez v.
Rodriguez, No. 10-CV-891, 2013 WL 4779639, at *1 (S.D.N.Y. July 8, 2013) (collecting cases).
B. Qualified Immunity
“Qualified immunity shields government officials from liability for civil damages as a
result of their performance of discretionary functions and serves to protect government officials
from the burdens of costly, but insubstantial, lawsuits.” Lennon v. Miller, 66 F.3d 416, 420 (2d
Cir. 1995). “Government actors performing discretionary functions are ‘shielded 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.’” Id. (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). “The objective reasonableness test is met—and the
defendant is entitled to immunity—if ‘officers of reasonable competence could disagree’ on the
legality of the defendant’s actions.” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
The doctrine “protects all but the plainly incompetent or those who knowingly violate the law.”

City of Tahlequah, 142 S. Ct. 9, 11 (2021) (quoting District of Columbia v. Wesby, 138 S. Ct.
577, 589 (2018)) (quotation marks omitted). “Only Supreme Court and Second Circuit
precedent existing at the time of the alleged violation is relevant in deciding whether a right is
clearly established.” Torcivia v. Suffolk Cty., New York, 17 F.4th 342, 367 (2d Cir. 2021). “[I]f
a reasonable officer might not have known for certain that the conduct was unlawful—then the
officer is immune from liability.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017).
“Qualified immunity is an affirmative defense, on which the defendant officials bear the
burden of proof.” Sudler v. City of New York, 689 F.3d 159, 174 (2d Cir. 2012). While qualified
immunity may be successfully asserted on a motion to dismiss . . . the defense faces a formidable
hurdle at the pleading stage.” Horn v. Stephenson, 11 F.4th 163, 169–70 (2d Cir. 2021) (internal

quotation marks omitted). To carry its burden, a defendant must show that “the facts supporting
the defense appear on the face of the complaint,” and that “it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Brown
v. Halpin, 885 F.3d 111, 117 (2d Cir. 2018) (internal quotation marks omitted). “[T]he plaintiff
is entitled to all reasonable inferences from the facts alleged, not only those that support his
claim, but also those that defeat the immunity defense.” McKenna v. Wright, 386 F.3d 432, 436
(2d Cir. 2004).
III. Discussion
Plaintiff asserts fourteen distinct causes of action in the Amended Complaint. The Court
construes the first, second, third, sixth, ninth, and tenth causes of action as individual liability
claims under 42 U.S.C. § 1983 (“Section 1983”); the fourth and fifth causes of action as
municipal liability claims under Section 1983; the seventh, eighth, eleventh, and thirteenth
causes of action as New York common law tort claims; and the twelfth cause of action as a
constitutional tort claim under New York common law, based on the New York Constitution.

The fourteenth cause of action alleges violations of 42 U.S.C. §§ 1985-86.
A. Individual Claims Under Section 1983
To state a claim under Section 1983, a plaintiff must “allege that ‘(1) the challenged
conduct was attributable at least in part to a person who was acting under color of state law and
(2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United
States.’” Flynn v. James, 513 F. App’x 37, 39 (2d Cir. 2013) (summary order) (quoting Snider v.
Dylag, 188 F.3d 51, 53 (2d Cir. 1999)); see also Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir.
2010). “[G]enerally, a public employee acts under color of state law while acting in his official
capacity or while exercising his responsibilities pursuant to state law.” West v. Atkins, 487 U.S.
42, 50 (1988). “[A]cts of officers in the ambit of their personal pursuits are plainly excluded.”
Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir. 1994) (quoting Screws v. United States, 325 U.S.

91, 111 (1945)) (internal quotation marks omitted). Section 1983 does not create any
independent substantive rights but rather is a vehicle to “redress . . . the deprivation of [federal]
rights established elsewhere.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999).
To sustain a Section 1983 action against an individual defendant, a “plaintiff must show,
inter alia, the defendant’s personal involvement in the alleged constitutional deprivation.”
Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013); see also Provost v. City of
Newburgh, 262 F.3d 146, 155 (2d Cir. 2001) (requiring “personal participation by one who has
knowledge of the facts that rendered the conduct illegal”). Conversely, “a supervisor’s mere
knowledge” is an insufficient basis for individual liability under Section 1983, Bellamy v. Mount
Vernon Hosp., No. 07-CV-1801, 2009 WL 1835939, at *4 (S.D.N.Y. June 26, 2009), aff’d, 387
F. App’x 55 (2d Cir. 2010) (summary order) (quoting Iqbal, 556 U.S. at 677), though a
“persistent failure to supervise or discipline” can be a basis for municipal liability, House v. City
of New York, No. 18-CV-6693, 2020 WL 6891830, at *19 (S.D.N.Y. Nov. 24, 2020).

1. Conditions of Confinement
The Court construes Plaintiff’s claims regarding denial of adequate medical care as a
Section 1983 claim for unconstitutional conditions of confinement. As a pretrial detainee in state
custody, Plaintiff’s “claims of unconstitutional conditions of confinement are governed by the
Due Process Clause of the Fourteenth Amendment.” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir.
2017). Plaintiff “may establish a § 1983 claim for allegedly unconstitutional conditions of
confinement by showing that the officers acted with deliberate indifference to the challenged
conditions.” Id. That requires showing both that “challenged conditions were sufficiently
serious to constitute objective deprivations of the right to due process”—an “objective prong”—
and that Defendants “acted with at least deliberate indifference to the challenged conditions”—a
“subjective prong.” Id. “Deliberate indifference” is roughly akin to “recklessness” in either the

subjective (“what a person actually knew, and disregarded”) or objective (“what a reasonable
person . . . should have known”) sense. Id.
Plaintiff has four overarching denial of care claims. First, he alleges that he has a
preexisting “deformity” of his left foot, that the condition has been recognized by facility
clinicians, and that lack of care has led to worsening pain. (AC ¶¶ 37, 39.) Although he was
previously receiving physical therapy, he alleges that he was not produced to “30 plus physical
therapy appointments” (AC at 50 (Exhibit E)), for a period of “over 24 months” (AC at 101
(Exhibit T)). In a grievance form dated March 20, 2023, Plaintiff stated that this lack of physical
therapy caused him to become “unable to place any substantial amount of weight on the [foot]
which has caused great pain that is unbearable,” and that this “has caused [him] to become
mental[ly] depressed” and suicidal. (Id.) When he was eventually seen in the facility clinic in
March 2023, Plaintiff alleges that the examining doctor determined that his condition had
worsened so severely that it required surgery. (Id. ¶ 39.)

With respect to the objective prong of the denial-of-care standard, Plaintiff alleges a
sufficiently serious harm to be unconstitutional. A serious medical condition exists where
“failure to treat . . . could result in further significant injury or the unnecessary and wanton
infliction of pain.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quotation marks
omitted). “Factors that have been considered include the existence of an injury that a reasonable
doctor or patient would find important and worthy of comment or treatment; the presence of a
medical condition that significantly affects an individual’s daily activities; or the existence of
chronic and substantial pain.” Id. (quotation marks and brackets omitted).3 Here, Plaintiff
alleges that failure to treat his foot caused him serious pain, along with an unnecessary
worsening of his condition. He also alleges that an examining physician concluded that the

condition eventually became serious enough to warrant surgery. This is sufficient to state a valid
claim.

3 Although this standard formally applies to claims brought under the Eighth
Amendment, the Second Circuit has applied it on multiple occasions in the Fourteenth
Amendment context as well. See, e.g., Charles v. Orange Cnty., 925 F.3d 73, 86 (2d Cir. 2019)
(civil immigration detainee); Mills v. Fenger, 216 F. App’x 7, 10 (2d Cir. 2006) (summary order)
(criminal detainee); Shenk v. Cattaraugus Cnty., 305 F. App’x 751, 753 (2d Cir. 2009) (summary
order) (criminal detainee). As it appears the Supreme Court has not articulated a lesser standard
for objective seriousness in Fourteenth Amendment context, and because the Court “do[es] not
think that the outcome depends on which standard applies,” the Court applies the factors noted
above. Cf. Shenk, 305 F. App’x at 752.
Plaintiff does not generally plead the personal involvement of any Defendant in specific
denials of access to the facility clinic.4 Rather, he asserts that the CLO itself barred him from
visiting the facility clinic, and therefore from receiving treatment. (AC ¶ 3, 19, 39.) The only
individuals alleged to have had a direct role in issuing the CLO are Defendants Cort and Matos.

Defendant Matos allegedly “signed and endorsed [the CLO] acknowledging and ordering the
enforcement of such, giving her direct involvement . . . .” (Opp. at 4 (cleaned up).) Both
Defendants Cort and Matos were allegedly “directly responsible” for the housing unit governed
by the CLO (id.), which “clearly ties the CLO directly to [them] (id. at 5). Both also allegedly
enforced the CLO and disciplined lower-level officers who deviated from its requirements. (Id.
at 4.) Defendants do not appear to dispute this characterization, acknowledging that “[t]he
Warden . . . issued a corresponding Command Level Order . . . implementing the terms of the
JLO.” (ECF No. 32 (“MoL”) at 10.) The Court therefore dismisses Plaintiff’s Section 1983
claims relating to his foot against all individual Defendants except Cort and Matos.5
Second, Plaintiff alleges that he has rectal pain due to hemorrhoids and was denied a

medically necessary surgery. (AC ¶¶ 5-6; see also AC at 48 (“Exhibit D”) (alleging that medical
made “numerous” appointments for “surgeries with rectal doctors that DOC officials have not
produced me to”).) This led to pain and “[b]leeding on numerous occasion[s] from the rectal
areas leading to medical emergencies.” (AC ¶ 19.)

4 With the exception of Defendant Phillips. See infra pp. 11-12.
5 Because a supervisor’s mere awareness of a violation is not enough for individual
liability under Section 1983, Matos’s supervisor, Griffin, is not liable here. See Tangreti v.
Bachmann, 983 F.3d 609, 618 (2d Cir. 2020). While Griffin allegedly played a more direct role
in Mr. Williams’ lack of access to counsel, see infra Section III.A.2, he is at most alleged to have
been aware of Mr. Williams’ various medical complaints.
As with Plaintiff’s foot, Plaintiff’s rectal injury is sufficiently serious to be cognizable
under Section 1983. Plaintiff also adequately links the worsening of his condition to the denial
of access to the facility clinic, which stemmed from the CLO. Plaintiff has thus stated a claim
for individual liability against Defendants Cort and Matos. Plaintiff’s Section 1983 claims

relating to his rectal pain are dismissed against all other individual Defendants.
Third, Plaintiff claims that he was not produced to “mental health bi-weekly sessions”
and “mental health [appointments]” (AC ¶ 6), and that his “mental health clinician [was] forced
to meet with me in housing unit” rather than the facility clinic (AC at 50 (Exhibit E)). Plaintiff
alleges that, as a result, he became depressed and suicidal. (AC at 101 (Exhibit T).)
Plaintiff’s claims, again, are sufficiently serious. See Langley v. Coughlin, 888 F.2d 252,
254 (2d Cir.1989) (“We think it plain that from the legal standpoint [that] psychiatric or mental
health care is an integral part of medical care” and “must be provided to prisoners”); Allah v.
Kemp, No. 08-CV-1008, 2010 WL 5860290, at *8–9 (N.D.N.Y. Nov. 9, 2010), adopted in full,
2011 WL 705210 (N.D.N.Y. Feb. 22, 2011) (rejecting a qualified immunity argument “in [the]

inmate suicide context”). As before, Plaintiff’s allegations stem from the CLO, so only
Defendants Cort and Matos are liable. Plaintiff’s Section 1983 claims related to his mental
health appointments are therefore dismissed as to the other individual Defendants.
Fourth, Plaintiff alleges that he experienced complications following accidental contact
with pepper spray, and that Defendants failed to provide him adequate treatment. (AC ¶¶ 7-14.)
Specifically, he was exposed to “[c]hemical agents . . . when another inmate was sprayed” by an
unnamed “correction official.” (Id. ¶ 7.) He informed an Officer Wolonski that he was allergic
to the chemical and showed Wolonski “at his cell door that he was coughing up blood and unable
to breathe.” (AC ¶ 9.) Wolonski then “attempted to assist” Plaintiff by calling for help, but
afterwards informed Plaintiff that the “tour commander . . . did not want Plaintiff to receive
medical care because he had published a book about Rikers Island and her co-worker . . . .”
(AC ¶ 12 (cleaned up).) Plaintiff alleges that this denial of care violated Department of
Corrections and Community Supervision (“DOCCS”) rules and regulations, including a directive

specifying that individuals exposed to chemical agents must be brought outside into fresh air or
be placed in front of a fan. (AC ¶ 9.) Although Plaintiff initially identified the supervisor who
ordered the treatment denial as Jane/John Doe in the Amended Complaint, the officers on duty at
the time of the spraying incident were later identified as ADW Chanele Henry, Captain Jimmy
Guan, and ADW Denise Phillips. (ECF No. 20 (“August 25, 2023 Letter”).) In his Reply,
Plaintiff alleges that Defendant Phillips is the one who made the allegedly retaliatory statements
to Officer Wolonski. (Opp. at 5.) The Court accordingly dismisses the claims against
Defendants Henry and Guan.
Plaintiff has adequately pleaded a Fourteenth Amendment violation as to Defendant
Phillips regarding the pepper spray incident. Again, the alleged conduct is sufficiently serious,

involving severe pain, coughing blood, and vomiting. Plaintiff has also alleged sufficient detail
for the Court to reasonably infer that his account is true, and that Defendant Phillips
demonstrated deliberate indifference when she instructed care be withheld in retaliation for
Plaintiff’s prior speech.6 Iqbal, 556 U.S. at 678. And, accepting Plaintiff’s allegations that DOC
rules and regulations required medical treatment, Defendants cannot establish as a matter of law
that they would have taken the same course of action in the absence of retaliatory intent.

6 Defendants respond that “Plaintiff only alleges that at the particular time he made the
request the cell door could not be opened because CO Wolonski was waiting on instructions
from security,” but do not acknowledge Plaintiff’s allegations of retaliatory intent.
Unlike the first two medical claims, Plaintiff does not allege that this failure to treat
stemmed from the CLO, instead linking it solely to Phillip’s retaliatory conduct. (See AC ¶ 12;
Opp. at 5-6.) Plaintiff’s Section 1983 claims related to the pepper spray incident are therefore
dismissed as to all individual Defendants except Phillips.

Defendants do not specifically apply the general qualified immunity defense to Plaintiff’s
medical claims. Regardless, a prisoner’s right to be free from deliberate indifference to his
serious medical needs has long been clearly established. See Darnell v. Pineiro, 849 F.3d 17, 30
(2d Cir. 2017) (“Under both the Eighth and Fourteenth Amendments . . . prisoners may not be
deprived of . . . medical care.”); see also Estelle v. Gamble, 429 U.S. 97, 102-03 (1976) (“[T]he
[Eighth] Amendment proscribes more than physically barbarous punishments . . . . [Supreme
Court precedents] establish the government’s obligation to provide medical care for those whom
it is punishing by incarceration.”).7 In addition, “[w]hile clearly established law should not be
defined at a high level of generality for purposes of qualified immunity analysis, it is error to
demand the specificity of a factual twin.” Soukaneh v. Andrzejewski, No. 21-2047, 2024 WL

3747703, at *10 (2d Cir. Aug. 12, 2024) (internal quotation marks and brackets omitted). “[T]he
absence of legal precedent addressing an identical factual scenario does not necessarily yield a
conclusion that the law is not clearly established because the absence of a reported case with
similar facts could demonstrate nothing more than widespread compliance with the well-
recognized applications of the right at issue on the part of government actors.” Id. (internal
quotation marks and brackets omitted). Here, the well-established nature of the right to adequate
medical care, combined with the objectively severe nature of Plaintiff’s alleged ailments, allows

7“[T]he due process rights of a person in [Plaintiff’s] situation are at least as great as the
Eighth Amendment protections available to a convicted prisoner.” City of Revere v.
Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983).
the Court to infer that reasonable officers should have known that denying Plaintiff the necessary
care was unconstitutional, and that there was no reasonable institutional purpose for doing so.
Defendants argue that they were acting pursuant to a valid JLO and CLO. (MoL at 13.).
“Although it is true that low-level employees have been granted qualified immunity where they

followed orders promulgated by their superiors,” Sorensen v. City of New York, 42 F. App’x 507,
511 (2d Cir. 2002) (summary order), that is not the case here. Rather, Plaintiff’s claims based on
the CLO lie only against Defendants Cort and Matos, who are the supervisors responsible for
promulgating and enforcing the CLO. While the CLO is an implementation of the JLO, the
unconstitutional conduct that Plaintiff alleges consists of deviations from or expansions of the
JLO, which does not direct any withholding of medical care. Plaintiff therefore has a plausible
argument that the CLO is not facially valid with respect to his medical care. Defendants also
point to no language in either order that would justify Defendant Phillips’ failure to treat Plaintiff
after he was pepper sprayed. Thus, qualified immunity protects neither Defendant Matos nor
Defendant Phillips here.

2. First Amendment Retaliation
Plaintiff next alleges various forms of retaliation against him for protected speech.
“[O]therwise constitutional acts may be actionable if taken in retaliation for the exercise of First
Amendment rights.” Soto v. Iacavino, No. 01-CV-5850, 2003 WL 21281762, at *2 (S.D.N.Y.
June 4, 2003). A plaintiff asserting such claims must allege “(1) that the speech or conduct at
issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that
there was a causal connection between the protected speech and the adverse action.” Espinal v.
Goord, 558 F.3d 119, 128 (2d Cir. 2009) (quoting Gill v. Pidlypchak, 389 F.3d 379, 380 (2d
Cir.2004)). “Only retaliatory conduct that would deter a similarly situated individual of ordinary
firmness from exercising his or her constitutional rights constitutes an adverse action for a claim
of retaliation.” Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003) (quoting Dawes v. Walker, 239
F.3d 489, 493 (2d Cir.2001)).
Plaintiff alleges two forms of retaliation. First, Plaintiff adequately states a claim based
on the pepper spray incident. See supra pp. 11-12. Plaintiff alleges, based on Officer

Wolonski’s statements, that Defendant Phillips denied his request to be removed from his cell
after being sprayed in retaliation for publishing a book that named her. Id. Publishing a book is
clearly protected speech. Simon & Schuster, Inc. v. Members of New York State Crime Victims
Bd., 502 U.S. 105 (1991). While it is true that prisoners have limited constitutional liberties, “[a]
prison inmate retains those First Amendment rights that are not inconsistent with his status as a
prisoner or with the legitimate penological objectives of the corrections system.” Burns v.
Martuscello, 890 F.3d 77, 86 (2d Cir. 2018) (quoting Shakur v. Selsky, 391 F.3d 106, 113 (2d
Cir. 2004)). Defendants here claim no such legitimate objection to Plaintiff’s book. Defendants
offer no alternative explanation for why he was not promptly removed from his cell,8 and
Plaintiff alleges that the failure to do so was in violation of governing DOC policies. Plaintiff

also adequately alleges harm, stating that the denial of treatment after being pepper sprayed
caused him to experience severe pain, vomit, and cough up blood.
Second, Plaintiff alleges that he was denied access to both civil and criminal counsel in
retaliation for previous lawsuits and grievances he filed against Defendants and DOC.
(AC ¶¶ 21, 24.) To support this, Plaintiff attached to his Complaint copies of grievance letters
filed since February 2023. (See AC at 92 (“Exhibit P”); AC at 88 (“Exhibit N”); AC at 85
(“Exhibit M”); AC at 87 (“Exhibit N”).) Plaintiff also alleges that defendants Lindsey-Smith,

8 Defendants respond that “Plaintiff only alleges that at the particular time he made the
request the cell door could not be opened because CO Wolonski was waiting on instructions
from security” (MoL at 11) but do not acknowledge Plaintiff’s allegations of retaliatory intent.
Matos, and Griffin all made statements to Plaintiff that restrictions on contact with counsel were
imposed in retaliation for Plaintiff’s civil lawsuits against the City and Department of
Corrections. (AC ¶ 21.) For example, Plaintiff alleges that Defendant Matos told him “I don’t
give a fuck about your attorney and your trial outcome you sued me and published a book about

my facility . . . .” (AC ¶ 27 (capitalization altered).) Plaintiff alleges that Defendant Lindsey-
Smith told him “I don[’t ]have to make sure you see your attorney[s].” (AC ¶ 29 (capitalization
altered).) Plaintiff also alleges that Defendant Lindsey-Smith denied Plaintiff’s request to speak
with his civil attorneys and stated, “I will not allow you to go and call the same people
who . . . are utilizing the courts to sue my officers.” (AC ¶ 30 (cleaned up).) Plaintiff alleges
that Lindsey-Smith implicated Defendant Rivera, telling Plaintiff that “he would never speak to
his attorneys via telephone as long as she was the admin captain,” and that “DW Rivera co-
signed any call she made.”9 (AC ¶ 35 (cleaned up).) Finally, Plaintiff alleges that, while in the
presence of Defendant Cort, Defendant Griffin told him that he was aware of Plaintiff’s
grievance letters regarding access to counsel, and that “he was going to make it his business to

make sure I never speak to [my] attorney until after [I am sentenced to life in prison].”
(AC ¶ 31.)

9 Plaintiff also alleges at various points in the Complaint that his classification as
requiring “Captain escort” when outside of his cell was unconstitutional because it was done
without a “due process hearing.” AC ¶ 18-19. While Plaintiff alleges that the implementation of
the classification was excessively harsh and that this was retaliatory in nature, he does not allege
that the classification itself was retaliatory. Defendants correctly note that the classification was
pursuant to facially valid lockdown orders, and thus served a legitimate penological purpose.
Pretrial detainees also lack a liberty interest in judicial process prior to the imposition of heighted
security classification. See Pugliese v. Nelson, 617 F.2d 916, 925 (2d Cir. 1980) (“[J]udicial
intervention into the classification of prisoners for monitoring and control purposes would almost
inevitably involve the federal courts in the day-to-day operations of our prison system, which are
better left to the expertise of prison administration authorities.”). Plaintiff has thus not stated a
substantive or procedural due process claim based on his classification as requiring an escort.
As with publishing a book, “it is well established that ‘retaliation against a prisoner for
pursuing a grievance violates the right to petition government for the redress of grievances
guaranteed by the First and Fourteenth Amendments and is actionable under § 1983.’” Dolan v.
Connolly, 794 F.3d 290, 294 (2d Cir. 2015) (quoting Graham v. Henderson, 89 F.3d 75, 80 (2d

Cir. 1996)). Based on the statements recounted in the Complaint, Plaintiff has adequately
pleaded retaliatory intent. And, because a valid Memorandum implementing the CLO granted
Plaintiff the right to speak with his lawyers, Defendants cannot assert an alternate institutional
purpose for denying him access. In any event, “the non-retaliatory justifications for the
defendants’ actions are insufficient to dismiss his claim,” and at “this early state of the
proceedings, he should have the opportunity to develop facts to demonstrate his claim.” Kotler
v. Boley, No. 21-1630, 2022 WL 4589678, at *3 (2d Cir. Sept. 30, 2022) (summary order)
(internal quotation marks omitted).
Plaintiff adequately alleges the personal involvement of Defendants Lindsey-Smith,
Matos, and Griffin based on express statements of retaliatory purpose, involvement of Defendant

Rivera based on the allegation that she co-signed Lindsey-Smith’s denials of access, and
involvement of Defendant Cort based on her alleged presence when Griffin’s retaliatory
statements were made. (Cf. MoL at 21-22.) Conversely, while Plaintiff alleges that Defendant
Molina was made aware of Plaintiff’s allegations through letters sent by Plaintiff’s attorneys,
mere awareness is insufficient to state a claim for supervisory liability under Section 1983.
Plaintiff’s Section 1983 claims based on First Amendment retaliation are therefore dismissed
against all individual defendants except Defendants Phillips, Griffin, Cort, Matos, Lindsey-
Smith, and Rivera.
Defendants do not address Plaintiff’s retaliation claims in their discussion of qualified
immunity, nor do they ask the Court to apply any heightened pleading standards to Plaintiff’s
allegations of improper intent. In any event, higher standards are inappropriate where, as here,
the alleged intent is an element of the constitutional violation, and the constitutional violation is

clearly established. See Crawford-El v. Britton, 523 U.S. 574, 593 (1998).
3. Sixth Amendment
Plaintiff also brings his access-to-counsel claims under the Sixth Amendment, which
guarantees the “right of a pretrial detainee, in a case brought against him by the state, to utilize
counsel in his defense.” Benjamin v. Fraser, 264 F.3d 175, 186 (2d Cir. 2001). By its terms, the
Sixth Amendment protects access to only criminal defense counsel, not civil counsel that a
detainee might be utilizing in other legal matters, even if those matters relate to the conditions of
his confinement. Id. (“[D]etainees need access to the courts and counsel is not to present claims
to the courts, but to defend against the charges brought against them.”). Detainees must have a
“reasonable opportunity to seek and receive the assistance of attorneys,” and “[r]egulations and
practices” must not “unjustifiably obstruct the availability of professional representation.”

Procunier v. Martinez, 416 U.S. 396, 419 (1974), overruled on other grounds by Thornburgh v.
Abbott, 490 U.S. 401, 413-14 (1989). While detainees are not entitled to unlimited phone calls
to counsel at any time of day, restrictions on such communications “must be reasonably
necessary to address . . . legitimate penological concerns.” Anduze v. City of New York, No. 21-
CV-519, 2022 WL 4586967, at *12 (S.D.N.Y. Aug. 8, 2022), adopted in full in 2022 WL
4547420 (Sept. 29, 2022). When restrictions are imposed on a detainee’s access to counsel, “the
practice must be evaluated in the light of the central objective of prison administration,
safeguarding institutional security.” Bell v. Wolfish, 441 U.S. 520, 547 (1979).
Applying Procunier and Bell, the Second Circuit has held that restrictions on access to
counsel must have a “reasonable relationship” to the institutional interests served and must be
reasonable in light of available alternatives. Benjamin, 264 F.3d at 187-88. Importantly,
Plaintiff needs not demonstrate “actual injury” to adequately plead a Sixth Amendment violation.
Id. at 187-88 (collecting cases).10

Here, Plaintiff alleges that he was prevented from communicating with criminal defense
counsel beginning on January 18, 2023. (AC ¶ 21.) Plaintiff, as already noted, alleges that such
restrictions were motivated by retaliatory intent on the part of Defendants Lindsey-Smith, Matos,
Griffin, Cort, and Rivera. See supra pages 14-17. Defendants respond that Plaintiff’s account of
the statements made to him by Defendants is “conclusory,” and that there is no “right to
unrestricted phone use.” (MoL at 6.) Defendants also argue that, in light of the JLO, the
restrictions on Plaintiff’s access to counsel had the legitimate penological purpose of ensuring
that he was “not threatening or intimidating witnesses.” (Id.)
The Court views Plaintiff’s account as sufficiently detailed to state a claim at this early

stage in the proceedings. The alleged statements of retaliatory purpose and the fact that the
restrictions were in conflict with the Security Memorandum allow an inference that the
restrictions were substantively unreasonable. Plaintiff adequately alleges the personal

10 Defendants do not raise, but the Court notes, that Heck v. Humphrey, 512 U.S. 477
(1994), may apply to Plaintiff’s Sixth Amendment claims, insofar as they impugn the validity of
his conviction. See, e.g., Zarro v. Spitzer, 274 F. App’x 31, 34-35 (2d Cir. 2008) (summary
order) (affirming dismissal of a Sixth Amendment access-to-counsel claim because it “would
necessarily impugn the validity of Plaintiff’s conviction”). However, while the Court observes
that Heck may bar Plaintiff from seeking damages that stem from the fact of his guilty plea or the
duration of his conviction, cf. AC ¶ 26, the availability of at least nominal damages here means
the Court “need not consider at this stage of the proceedings whether any of Plaintiff’s
incarceration-based damages are Heck-barred.” Poventud v. City of New York, 750 F.3d 121,
136 n.18 (2d Cir. 2014); see also Anduze, 2022 WL 4586967, at *12-13 (declining to dismiss
similar Sixth Amendment claims where defendants did not raise Heck).
involvement of Defendants Lindsey-Smith, Matos, Griffin, Rivera, and Cort based on their
express or adopted retaliatory statements. His Section 1983 claims based on the Sixth
Amendment are dismissed against the other individual Defendants.
Defendants claim entitlement to qualified immunity, both because the denial of access to

counsel falls in a “grey area” rather than being clearly unconstitutional, and because their actions
were taken pursuant to a “facially valid directive.” (Id. at 13.) Here, however, Plaintiff alleges
that the denials of access to counsel were in conflict with such directives, including the JLO,
CLO, and Security Memorandum. (AC ¶ 20 (“[Defendants] were in contempt of the . . . court
order issue[d] by [Judge] Vincent Del-Giudice”); id. at 15 (Third Cause of Action) (“Defendants
purposefully engaged in conduct that was adverse to Plaintiff’s updated Court Order.” (cleaned
up)).) Plaintiff also alleges that the denials were retaliatory in nature. It is clearly established
that restrictions on access to counsel must be reasonable in light of a legitimate institutional goal,
and that retaliation is not such a goal. Bell, 441 U.S. at 547. Nor have Defendants articulated
any other legitimate institutional goal plausibly served by the denials. Defendants have thus not

pointed to facts in the pleadings that support the application of qualified immunity here, nor have
they demonstrated a sufficient level of certainty that Plaintiff cannot later prove facts that would
defeat the defense.
4. Equal Protection
Plaintiff asserts an equal protection claim based on the additional restrictions imposed on
him relative to “inmates . . . who are not court order lockdown inmates.” (AC at 22 (Tenth
Cause of Action) (cleaned up).) To state a claim under the Equal Protection Clause, Plaintiff
must allege “facts indicating either that he was ‘selectively treated’ as ‘compared with others
similarly situated’ or that ‘such selective treatment was based on impermissible considerations.’”
Brown v. City of New York, No. 18-CV-3287, 2020 WL 1819880, at *3 (S.D.N.Y. Apr. 9, 2020)
(quoting LaTrieste Restaurant & Cabaret Inc. v. Village of Port Chester, 40 F.3d 587, 590 (2d
Cir. 1994)). If, as here, a plaintiff does not allege membership in a protected class, he can still
prevail in a class of one equal protection claim by showing that he was “intentionally treated
differently from other similarly[]situated individuals without any rational basis.” Clubside, Inc.

v. Valentin, 468 F.3d 144, 159 (2d Cir.2006). For prisoners, a disparity in treatment is
unconstitutional only if it is “not reasonably related to any legitimate penological interests.”
Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir.2005).
Plaintiff does not allege that he was treated differently from similarly situated inmates,
but rather that all inmates subject to lockdown orders were subject to the same restrictions. In
addition, Defendants had a legitimate institutional reason to treat Plaintiff differently than non-
lockdown inmates—namely, the JLO ordering that they do so. The Court therefore grants the
motion to dismiss as to Plaintiff’s equal protection claim.
B. Municipal Liability Under Section 1983
To plead liability under Section 1983, a plaintiff must plausibly allege: “(1) an official
policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional

right.” Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007) (internal quotation marks
and citation omitted). To allege an official policy in satisfaction of the first element, a plaintiff
must plead facts supporting a plausible inference that the constitutional violation “took place
pursuant either to a formal course of action officially promulgated by the municipality’s
governing authority or the act of a person with policymaking authority for the municipality.”
Missel v. Cnty. of Monroe, 351 F. App’x 543, 545 (2d Cir. 2009) (summary order). A plaintiff
may alternatively plead “a practice so consistent and widespread that, although not expressly
authorized, constitutes a custom or usage of which a supervising policy-maker must have been
aware” or “a failure by policymakers to provide adequate training or supervision to subordinates
to such an extent that it amounts to deliberate indifference to the rights of those who come into
contact with the municipal employees.” Tieman v. City of Newburgh, No. 13-CV-4178, 2015
WL 1379652, at *13 (S.D.N.Y. Mar. 26, 2015) (quoting Brandon v. City of New York, 705 F.
Supp. 2d 261, 276–77 (S.D.N.Y. 2010)).

Plaintiff alleges two bases for municipal liability here. First, he claims that the CLO
itself is an official policy.11 (See, e.g., AC ¶ 17 (“[T]he CLO that governs court order
lockdown . . . is to blame . . . which would leave liable defendant City . . . .” (cleaned up)).)
When alleging an official policy, “a plaintiff must make factual allegations that support a
plausible inference that the constitutional violation took place pursuant either to a formal course
of action officially promulgated by the municipality’s governing authority or the act of a person
with policymaking authority for the municipality.” Missel, 351 F. App’x at 545. Bare
allegations of a policy are insufficient; rather, a plaintiff must plead “facts suggesting the
policy’s existence.” Id. That said, “[e]ven a single action by a decisionmaker who possesses
final authority to establish municipal policy with respect to the action ordered may deprive the

plaintiff of his or her constitutional rights.” Montero v. City of Yonkers, New York, 890 F.3d 386,
403 (2d Cir. 2018) (internal quotation marks omitted).
The Court is satisfied for now that the CLO qualifies as “a formal policy which is
officially endorsed by the municipality.” Iacovangelo v. Corr. Med. Care, Inc., 624 F. App’x 10,
13 (2d Cir. 2015) (summary order). Although brief, Plaintiff’s filings do allege that the
promulgation and enforcement of the CLO was an official policy. (Opp. at 5). While some
courts have questioned whether discrete actions by wardens qualify as policies, Anduze, 2022

11 Defendants mistakenly argue that “Plaintiff does not even mention or refer to the
existence of any policy, practice, or custom.” MoL at 18.
WL 4586967, at *21 (collecting cases), the key question appears to be whether the individual in
question possesses “final” policymaking authority regarding the challenged conduct, see, e.g., id.
(accepting the warden’s policymaker status at the motion to dismiss stage); Graham v. City of
New York, No. 05-CV-5428, 2009 WL 909620, at *2 (E.D.N.Y. Mar. 31, 2009) (calling for more

evidence on the question); Joseph v. City of New York, No. 20-CV-1676, 2020 WL 3129159, at
*2 (E.D.N.Y. June 12, 2020) (dismissing for lack of alleged facts showing that the warden was
“the final policymaking authority for inmate complaints”). Here, Deputy Warden Matos and
Warden Cort promulgated a CLO that Plaintiff alleges, and Defendants acknowledge, was
binding throughout the facility, and pertained to numerous inmates. (See AC ¶ 17 (alleging that
the CLO “governs” the lockdown unit); MoL at 13 (arguing that officers were acting “at the
direction of a facially valid directive – in this case the CLO”).) Although the factual record is
incomplete on this question, Plaintiff’s allegations are sufficient to support a reasonable
inference that Defendants Matos and Cort were acting as policymakers at this stage in the
proceedings.

The City is thus potentially liable under Section 1983 for any constitutional violations
that were caused by the CLO. As explained above, the CLO (and interpretive Memorandum)
implemented an official policy of granting Plaintiff access to lawyers, and the alleged denials of
access were instead due to retaliatory animus. Likewise, Plaintiff alleges that failure to treat his
pepper spray injuries was a retaliatory act by Defendant Phillips, rather than based on the CLO.
The City is therefore not liable for these claims. Plaintiff does, however, link his other medical
claims to the CLO. Specifically, he alleges that he was denied physical therapy and surgery for
his left foot, surgery for his rectal pain, and necessary mental health treatment, because, under
the CLO, he was “not [] allowed to the facility clinic area for any reason [other than] an acute
emergency.” (AC ¶ 1 (cleaned up).) The Court therefore declines to dismiss Plaintiff’s claims
against the City concerning his left foot, rectal injury, and mental health issues.
Plaintiff’s second theory of municipal liability sounds in failure to train and supervise.
“[A] municipality’s persistent failure to train or supervise subordinates who violate civil rights

could give rise to Monell liability if the severity of such failure rises to the level of deliberate
indifference to a plaintiff’s rights.” White v. City of New York, No. 17-CV-2404, 2019 WL
1428438, at *3 (S.D.N.Y. Mar. 29, 2019) (quoting Sarus v. Rotundo, 831 F.2d 397, 401 (2d Cir.
1987)) (internal quotation marks and brackets omitted). Deliberate indifference requires that a
municipal actor have “disregarded a known or obvious consequence of his action.” Bd. of Cnty.
Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 410 (1997). This requirement can be
satisfied if “city policymakers are on actual or constructive notice” that their failure to train or
supervise is leading to violations of constitutional rights. Connick v. Thompson, 563 U.S. 51, 61
(2011).
Plaintiff alleges that both Deputy Warden Matos and Warden Cort were actually aware

that Plaintiff was being denied access to counsel in violation of the CLO and Memorandum.
(Opp. at 8.) While wardens may or may not always be policymakers, Plaintiff here alleges that
both Defendants Matos and Cort possessed the requisite authority for promulgating a CLO, and
that they were responsible for supervising their subordinates to ensure that the CLO was being
enforced. (Opp. at 4-5.) Plaintiff also alleges, and Defendants do not dispute, that Defendant
Griffin told Plaintiff that he was aware of Plaintiff’s complaints about access to counsel, and that
he intended to deliberately continue to prevent Plaintiff from speaking with his attorneys in
retaliation for his previous civil litigation. (AC ¶ 31.) Defendant Griffin is Assistant
Commissioner of the Department of Corrections and Community Supervision (AC at 1), ranking
above Warden Cort (AC at 20 (Seventh Cause of Action)). Plaintiff alleges that “a
comm[i]ssioner” “can create a policy [in] city jails and other prisons.” (Opp. at 5.) Beyond
citations to inconclusive case law, Defendants do not articulate any reason why Defendants
Matos, Cort, or Griffin lacked policymaking authority in this context. (MoL at 17-18.)

At this stage in the litigation, and in light of the liberal treatment of pro se pleadings, the
Court is satisfied that Plaintiff has sufficiently alleged that Defendants Matos, Cort, and Griffin
qualify as policymakers, and that they were deliberately indifferent to the retaliatory denial of
Plaintiff’s access to counsel. The Court therefore declines to dismiss Plaintiff’s claims against
the City alleging denial of access to counsel in violation of the First and Sixth Amendments.12
Finally, regarding the pepper spray incident, Plaintiff does not allege that Defendant
Phillips was a municipal official, nor can the Court discern a reason to believe she had
policymaking authority. Plaintiff does not allege that any other official was aware of or
indifferent to the incident. The Court accordingly dismisses Plaintiff’s Section 1983 claim
against the City relating to the pepper spray incident.

C. Individual Negligence
In addition to his federal claims, the Court construes Plaintiff as asserting a state-law
negligence claim for both denial of medical care and denial of access to his attorneys. The Court
understands these claims as applying to all individual Defendants alleged to have personally
participated in or approved of such denials—that is, Defendants Lindsey-Smith, Matos, Cort,
Phillips, Rivera and Griffin. Defendants respond only to a supposed claim for “negligent
training and supervision” and do not otherwise mention Plaintiff’s ordinary individual

12 Plaintiff also alleges that Defendant Molina was aware of his complaints. The Court
need not reach that issue, since the other officials’ alleged conduct is a sufficient basis for
municipal liability at this stage in the proceedings.
negligence claims. (See MoL at 16-17.) Defendants also decline to assert any state-law
immunity, and their qualified immunity defense applies only to federal causes of action. See
Stein ex rel. Stein v. Barthelson, 419 Fed. App’x 67, 71 (2d Cir. 2011) (“[T]he doctrine of
qualified immunity applies to federal causes of action but is not generally understood to protect
officials from claims based on state law.” (internal quotation marks omitted)).13 As the Court is

satisfied that Plaintiff has met his burden of stating individual negligence claims against the
listed Defendants, the Court declines to dismiss such claims sua sponte.14
D. Intentional Infliction of Emotional Distress
Plaintiff also asserts state-law claims for intentional infliction of emotional distress
(IIED) against all Defendants. Under New York law, the first element for such a claim is
“extreme and outrageous conduct.” Howell v. N.Y. Post Co., 81 N.Y.2d 115, 121 (1993). The
standard for this element is exacting: “[l]iability has been found only where the conduct has been
so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”
Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 303 (1983) (quoting Restatement (Second)

of Torts § 46, cmt. d). Indeed, the threshold for outrageousness is so demanding that, “of the
intentional infliction of emotional distress claims considered by the [New York] Court of
Appeals, ‘every one has failed because the alleged conduct was not sufficiently outrageous.’”
Seltzer v. Bayer, 709 N.Y.S.2d 21, 23 (App. Div. 1st Dep’t 2000) (quoting Howell, 81 N.Y.2d at
122). The mere commission of torts—“constitutional or otherwise”—does not mean that

13 New York common law grants an immunity similar to federal qualified immunity,
Stein, 419 Fed. App’x at 71, but Defendants have not raised that defense here.
14 While the Court is skeptical that some elements of Plaintiff’s negligence claims would
survive summary judgment, no special solicitude is due to counseled parties and dismissal would
be inappropriate at this stage without briefing on the matter from Defendants.
conduct rises to the level of outrageousness necessary to qualify as IIED. Perez v. de la Cruz,
No. 09-CV-264, 2013 WL 2641432, at *11 (S.D.N.Y. June 12, 2013).
Although Defendants do not specifically address Plaintiff’s IIED claims, under this
standard, the denial of access to medical care alleged here is not sufficiently outrageous,

atrocious, or intolerable to sustain the cause of action. See, e.g., Vail v. City of New York, No.
18-CV-9169, 2020 WL 127639, at *4 (S.D.N.Y. Jan. 10, 2020) (dismissing an IIED claim based
on similar facts). The same conclusion holds a fortiori for Plaintiff’s claims regarding denial of
access to counsel. Plaintiff’s IIED claims are therefore dismissed.
E. Vicarious Liability
Plaintiff asserts claims for negligent failure to train and supervise, and against the City
under a theory of respondeat superior. Plaintiff also asserts claims based on a respondeat
superior theory against Defendants Griffin, Cort, and Matos, which the Court construes as
vicarious liability claims for the negligent failure to supervise.15
1. Negligent Failure to Train and Supervise
“To state a claim for negligent supervision or retention under New York law, in addition

to the standard elements of negligence, a plaintiff must show: (1) that the tort-feasor and the
defendant were in an employee-employer relationship; (2) that the employer knew or should
have known of the employee’s propensity for the conduct which caused the injury prior to the
injury’s occurrence; and (3) that the tort was committed on the employer’s premises or with the

15 Plaintiff’s eleventh cause of action is entitled “abuse of power.” (SAC at 23.) The
Court is unaware of any such tort under New York law, and, in any event, Plaintiff’s description
is indistinguishable from his claims for individual negligence and vicarious liability. The Court
therefore declines to construe the eleventh cause of action as raising independent claims.
employer’s chattels.” Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004) (internal
citations and quotation marks omitted).
Plaintiff alleges that the City failed to instruct the Defendant officers regarding the
“importance of abiding by [the JLO]” and the importance of protecting detainees’ rights

“regardless of a detainee’s record of civil litigation.” (AC at 16 (Fourth Cause of Action)
(cleaned up).) Plaintiff also alleges that the City was actually aware of improper restrictions on
his access to counsel “in light of the complaints filed by the plaintiff.” (AC at 17 (Fourth Cause
of Action).) Defendants do not dispute that they were in fact employed by the City and that the
conduct alleged occurred on City property.
Defendants argue that the alleged negligence must have been “an independent act of
negligence outside the scope of employment.” (MoL at 16-17 (quoting House, 2020 WL
6891830, at *21).) At the very least, Plaintiff’s claims based on retaliatory animus meet this
requirement. See, e.g., Degrafinreid v. Ricks, 452 F. Supp. 2d 328, 334 (S.D.N.Y. 2006) (“New
York and federal courts have on occasion found that the on-the-job conduct of DOCS employees

was outside the scope of employment . . . [when] the conduct ‘was prompted purely by personal
reasons unrelated to the employer’s interest . . . .’” (quoting Ierardi v. Sisco, 119 F.3d 183, 188
(2d Cir. 1997)).
Defendants also state without explanation that Plaintiff’s claim is “conclusory” and
“fail[s] to allege any facts about any relevant City training program and/or to allege a specific
deficiency in that program.” (MoL at 17.) The Court need not decide whether Plaintiff has
pointed to any specific training program—rather, it is sufficient for now that the Amended
Complaint adequately states a claim for failure to supervise based on Plaintiff’s claims that
supervisors were actually aware of the alleged retaliation. The Court therefore declines to
dismiss Plaintiff’s negligence claims against the City based on Defendants’ retaliatory conduct.
2. Respondeat Superior
It is well settled that “a municipality cannot be held liable under § 1983 on a respondeat
superior theory.” Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978).

However, “[u]nlike cases brought under § 1983, municipalities may be liable for the common
law torts, like false arrest and malicious prosecution, committed by their employees under the
doctrine of respondeat superior.” L.B. v. Town of Chester, 232 F. Supp. 2d 227, 239 (S.D.N.Y.
2002). “No municipal custom or policy need be proven to establish the liability of the City for
violation of that state law, for ‘[m]unicipalities surrendered their common-law tort immunity for
the misfeasance of their officers and employees long ago.’” Lore v. City of Syracuse, 670 F.3d
127, 168 (2d Cir. 2012) (alteration in original) (quoting Tango v. Tulevech, 61 N.Y.2d 34, 40
(1983)). Unlike failure to supervise claims, “[u]nder the doctrine of respondeat superior, an
‘employer may be liable . . . so long as the tortious conduct is generally foreseeable and a natural
incident of the employment,’ and the employee is acting in the scope of his employment.”

House, 2020 WL 6891830, at *22 (quoting Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932,
933 (1999)).
Defendants’ only response to this claim is that respondeat superior “is not an
independent cause of action, but a theory that must attach to an underlying claim.” (MoL at 18
26 (quoting Miller v. Cty. of Erie, No. 17-CV-928, 2021 WL 4481195 at *9 (W.D.N.Y. Sept. 30,
2021)).) Here, however, Plaintiff has adequately alleged state-law negligence claims against
City employees relating to non-retaliatory denials of access to medical care and counsel. Unlike
the retaliation claims, these are plausibly within the scope of Defendant officers’ employment.
And, given Plaintiff’s repeated attempts to notify high-level supervisors about his claims, it is
reasonable to infer that they were foreseeable. Absent any other arguments, the Court therefore
declines to dismiss Plaintiff’s claim against the City on a respondeat superior theory for
Defendants’ non-retaliatory but negligent conduct.
3. Supervisory Liability
The Court construes the Amended Complaint also asserting individual failure-to-

supervise claims against Defendants Griffin, Cort, and Matos. (AC at 20.) Under New York
law, “a supervisor will generally only be held liable for the actions of a subordinate where the
supervisor directed or permitted the subordinate to act in a manner that created an unreasonable
risk of harm.” Tabchouri v. Hard Eight Rest. Co., LLC, 219 A.D.3d 528, 533 (2d Dep’t 2023);
see also Ruggiero v. Miles, 125 A.D.3d 1216, 1217 (3d Dep’t 2015) (noting the “common-law
rule . . . that a supervisor is liable if he directs or permits tortious conduct by those under his
supervision or fails to exercise proper control over them.” (internal quotation marks omitted)).
Here, Plaintiff asserts that Defendants Griffin, Cort, and Matos are liable for all of the conduct of
their subordinates. Such a broad claim clearly exceeds the scope of common-law liability.
However, Plaintiff more narrowly alleges that Defendants Griffin and Cort were aware that

Plaintiff was being denied access to counsel for retaliatory reasons, and either directed or
permitted that conduct to continue. (AC ¶ 31-32; Opp. at 8.) Plaintiff also alleges that Matos
was aware of and approved such denials based on her direct statements. (AC ¶ 24.)
Regarding Plaintiff’s medical claims, Defendants Cort and Matos promulgated the CLO
restricting Plaintiff’s access to medical treatment, thereby directly creating the risk of harm.
(Opp. at 4.) Plaintiff also alleges that Defendants Cort and Matos routinely toured the lockdown
unit to monitor compliance with the CLO and disciplined subordinate officers who did not
enforce it. (Id.) It is thus reasonable to infer that both Cort and Matos were aware of the CLO
and directly responsible for the manner in which it was being implemented. Plaintiff does not
allege that Defendant Griffin was specifically aware of Plaintiff’s medical issues, nor that any of
the three Defendants were aware of the pepper spray incident.
Defendants do not specifically address these allegations in their briefing. Plaintiff’s
claims of individual supervisory liability must therefore be dismissed insofar as they assert

blanket liability for all conduct by subordinate employees, but not to the extent that they are
based on Defendants’ actual knowledge and approval as described above. Accordingly, the
motion to dismiss is granted as to Griffin with respect to all of Plaintiff’s medical claims, and to
Cort and Matos with respect to claims based on the pepper spray incident, but otherwise denied.
F. Claims Under State Constitution
Plaintiff asserts a claim under New York State’s constitutional guarantee of freedom of
speech. See N.Y. Const. art 1, § 8. The Court construes this cause of action as a constitutional
tort claim under state common law. While there is no statutory basis in New York for such a
claim, the New York Court of Appeals has recognized the validity of “damage claims against the
State based upon violations of the State Constitution.” Brown v. State, 89 N.Y.2d 172, 183
(1996). “New York courts have [also] consistently accepted jurisdiction of such claims against

individuals or corporations.” Id. (internal quotation marks omitted).
“[Retaliation] claims under the First Amendment to the U.S. Constitution and Article I
§ 8 of the New York State Constitution are subject to the same analysis.” Almontaser v. New
York City Dept. of Educ., No. 07-CV-10444, 2009 WL 2762699, at *2 n. 1 (S.D.N.Y. Sept. 1,
2009); see also Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir.2006). Therefore, as
with his First Amendment claims, Plaintiff has adequately pleaded his retaliation claims under
the New York Constitution against Defendants Lindsey-Smith, Matos, Cort, Griffin, Rivera, and
Phillips, as well as against the City based on the involvement of policymaking officials.
While New York courts will “only [infer] a private right of action under the state
constitution where no alternative remedy is available to the plaintiff,” Ahmad v. New York City
Health & Hosps. Corp., No. 20-CV-675, 2021 WL 1225875, at *35 (S.D.N.Y. Mar. 31, 2021)
(quoting Felmine v. City of New York, No. 09-CV-3768, 2012 WL 1999863, at *6 (E.D.N.Y.

June 4, 2012)), the Court recognizes that some of Plaintiff’s other claims may fail later in these
proceedings. The Court thus views Plaintiff’s claims under the state constitution as pleaded in
the alternative and declines to dismiss them at this time.
G. Claims Under Sections 1985 and 1986
Finally, Plaintiff alleges conspiracy claims under 42 U.S.C. §§ 1985 and 1986. To
survive a motion to dismiss on a Section 1985 conspiracy claim, a plaintiff must plausibly allege:
“(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or
class of persons of equal protection of the laws, or of equal privileges and immunities under the
laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his
person or property or deprived of any right of a citizen of the United States.” Mian v.
Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087-88 (2d Cir. 1993) (citing United

Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 828–29 (1983)). “Furthermore, the
conspiracy must also be motivated by some racial or . . . otherwise class-based, invidious
discriminatory animus.” Id. at 1088 (internal quotation marks omitted).
Here, Plaintiff has failed to assert an underlying violation of the Equal Protection Clause.
See supra § III.A.4. In addition, Plaintiff has not alleged any racial or class-based animus. The
Court therefore dismisses Plaintiff’s Section 1985 claims. Because Section 1986 does not
provide an independent right of action and must be based on an underlying § 1985 claim, the
Court dismisses Plaintiff’s Section 1986 claims as well. See Gagliardi v. Vill. of Pawling, 18
F.3d 188, 194 (2d Cir. 1994) (“A claim under section 1986 . . . lies only if there is a viable
conspiracy claim under section 1985.”).
IV. Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss is GRANTED in part and
DENIED in part as explained in the foregoing opinion.

Regarding Plaintiff’s Section 1983 claims based on conditions of confinement, the
Motion is DENIED as to Defendants Cort, Matos, Phillips, and the City, and GRANTED as to
all other Defendants.
Regarding Plaintiff’s Section 1983 claims based on First Amendment retaliation, the
Motion is DENIED as to Defendants Phillips, Griffin, Cort, Matos, Lindsey-Smith, and Rivera,
and GRANTED as to all other Defendants. The Motion is DENIED as to the City except with
respect to Plaintiff’s claims based on Defendant Phillips’ conduct, as to which it is GRANTED.
Regarding Plaintiff’s Section 1983 claims based on the Sixth Amendment, the Motion is
DENIED as to Defendants Griffin, Cort, Matos, Lindsey-Smith, Rivera, and the City, and
GRANTED as to all other Defendants.

Regarding Plaintiff’s individual negligence claims under state law, the Motion is
DENIED.
Regarding Plaintiff’s intentional infliction of emotional distress claims under state law,
the Motion is GRANTED.
Regarding Plaintiff’s state-law claims against the City based on supervisory negligence
and under a theory of respondeat superior, the Motion is DENIED.
Regarding Plaintiff’s state-law vicarious negligence claims against Defendant Griffin, the
Motion is DENIED with respect to Plaintiff’s claims based on denial of access to counsel and
GRANTED with respect to all other claims. Regarding Plaintiff’s state-law vicarious negligence
claims against Defendants Cort and Matos, the Motion is DENIED except with respect to the
pepper spray incident, as to which it is GRANTED.
Regarding Plaintiffs’ claims under the New York Constitution, the Motion is DENIED.
Regarding Plaintiff's conspiracy claims under Sections 1985 and 1986, the Motion is
GRANTED.
Defendants shall file answers to the remaining claims within 14 days after the date of this
opinion and order.
The Clerk of Court is directed to close the motion at Docket Number 31.
The Clerk of Court is directed to mail a copy of this opinion and order to the Plaintiff.
SO ORDERED.
Dated: August 28, 2024
New York, New York

United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10662156. Public record. Not legal advice.