# Khozouri-Zadeh v. County of Nassau

> District Court, E.D. New York · January 30, 2025

URL: https://www.frixlaw.com/law-library/cases/10791026

## Case

- **Court:** District Court, E.D. New York
- **Decided:** January 30, 2025
- **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/10791026

## How later opinions describe it (automated extraction)

- affirming dismissal of claims as abandoned during summary judgment briefing
- holding that four-hour delay in treating plaintiff’s broken ankle did not constitute sufficiently serious deprivation of medical treatment
- affirming dismissal of Monell claim for lack of an underlying constitutional violation by the individual municipal actors

## Opinion text

EASTERN DISTRICT OF NEW YORK For Online Publication Only
----------------------------------------------------------------------X
HESKELL KHOZOURI-ZADEH,

Plaintiff, MEMORANDUM & ORDER
21-cv-4601 (JMA) (AYS)

FILED
-against-
CLERK

1/30/2025 9:25 am
COUNTY OF NASSAU et al.,
U.S. DISTRICT COURT
Defendants. EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
----------------------------------------------------------------------X
AZRACK, United States District Judge:
Presently before the Court is the motion by Defendants County of Nassau (“Nassau
County”), Nassau County Police Department, and Nassau County Police Emergency Ambulance
Bureau for summary judgment pursuant to Federal Rule of Civil Procedure 56. (ECF No. 33.)
Plaintiff’s claims stem from a July 25, 2020 altercation with another individual that resulted in
both individuals being arrested by officers of the Nassau County Police Department. Plaintiff
commenced this action pursuant to 42 U.S.C. § 1983, alleging claims for false arrest, malicious
prosecution, violation of right to counsel, deliberate indifference, and conspiracy. (ECF No. 1.)
For the reasons set forth below, Defendants’ motion for summary judgment is GRANTED
and this action is DISMISSED.
I. BACKGROUND1
A. Factual Background
On the evening of July 25, 2020, Plaintiff was visiting the home of Isadora Miale in
Syosset, New York. (Compl. ¶¶ 29-31.) Plaintiff’s daughter was friends with Miale’s daughter,

1 The facts set forth in this Opinion are drawn from Plaintiff’s Complaint, (ECF No. 1 (“Compl.”)), and the parties’
submissions in connection with Defendants’ motion for summary judgment. The Court draws from Defendants’ Local
Civil Rule 56.1 Statement of Material Undisputed Facts (ECF No. 33-2 (“Defs.’ 56.1”)), Plaintiff’s Deposition
Transcript (ECF No. 33-27 (“Pl. Dep. Tr.”)), Police Officer Manuel Dias’s Deposition Transcript (ECF No. 33-28
Isadora Miale lives at the home with her husband, Frank Miale, and their children. (Id. ¶ 31.)

Shortly after 9:00 p.m., Frank Miale arrived at the house, and an altercation ensued between
Plaintiff and Mr. Miale. (Id. ¶¶ 34-37; Pl. Dep. Tr. 18-20.) Prior to the altercation, Plaintiff
observed Mr. Miale opening the driver’s side door of Plaintiff’s car, which had been parked in Mr.
Miale’s driveway. (Defs.’ 56.1 ¶ 6.) Mr. Miale began to drive the car out of the driveway, and
Plaintiff pulled himself onto the side of the car while telling Mr. Miale to stop the vehicle. (Pl.’s
Dep. Tr. 18-19.) During this incident, Plaintiff was thrown to the ground to the side of the moving
vehicle. (Id.)
When Plaintiff stood up, he felt a burning pain in his right leg and observed Mr. Miale

walking towards him. (Defs.’ 56.1 ¶¶ 7-9.) At this point, Plaintiff and Mr. Miale engaged in a fist
fight in the street in front of the Miales’ home, with both individuals punching each other. (Id.
¶¶ 9-10; B. May Dep.) According to Plaintiff, he was trying to defend himself after seeing Mr.
Miale walk towards him aggressively while swinging his fists. (Pl.’s Dep. Tr. 21.) An eyewitness
reported that he saw both individuals engaged in a physical altercation while punching each other.
(B. May Dep.) During the physical altercation, Plaintiff again fell to the ground on his injured
right leg. (Defs.’ 56.1 ¶ 10.) Bystanders called 911, and officers from the Nassau County Police
Department arrived at the scene at approximately 9:43 p.m. (Compl. ¶¶ 41-43.)
Nassau County police officers arrived and observed a chaotic scene in the aftermath of the

altercation between Plaintiff and Mr. Miale, with both individuals screaming. (Defs.’ 56.1 ¶ 12;

(“Dias Dep. Tr.”)), EMT Goodwin’s Deposition Transcript (ECF No. 33-26 (“Goodwin Dep. Tr.”)), and the
Supporting Deposition of Brian May (ECF No. 33-13 (“B. May Dep.”)). Citations to a party’s Rule 56.1 Statement
incorporate by reference the documents and testimony cited therein. For ease of reference, the Court refers to
Defendants’ brief in support of their motion for summary judgment as “Defs.’ Br.” (ECF No. 33-3), to Plaintiff’s
opposition brief as “Pl.’s Opp.” (ECF No. 33-22), and to Defendants’ reply brief as “Defs.’ Reply Br.” (ECF No. 33-
33.)
(“Officer Dias”) secured the scene by separating both individuals and requesting emergency

medical services (“EMS”). (Defs.’ 56.1 ¶ 13; Dias Dep. Tr. 55.) While waiting for EMS, Officer
Dias rendered aid to both individuals by speaking to them, evaluating their injuries, and checking
for blood loss. (Defs.’ 56.1 ¶ 14; Dias Dep. Tr. 62.) Officer Dias observed that both individuals
were conscious, alert, and breathing at this time. (Dias Dep. Tr. 62.) At approximately 9:49 p.m.,
EMS arrived at the scene, and EMT Jeffrey Goodwin (“EMT Goodwin”) began attending to
Plaintiff. (Goodwin Dep. Tr. 37-38; Nassau Cty. Patient Care Report, ECF No. 33-25 at 2.) EMT
Goodwin observed that Plaintiff was laying on the ground when he first arrived. (Goodwin Dep.
Tr. 38.) EMT Goodwin and officers on the scene assisted Plaintiff by placing him on a stretcher
and putting him in the ambulance (Id. at 39-40.) Plaintiff alleges that while he was being helped

onto the stretcher, he was “screaming and yelling” in pain. (Pl. Dep. Tr. 23-24.)
During EMT Goodwin’s interaction with Plaintiff in the ambulance, EMT Goodwin
observed that Plaintiff was stable, breathing, talking, and able to hold a conversation with a normal
demeanor. (Goodwin Dep. Tr. 40, 48-49.) EMT Goodwin noted that throughout the entire time
they were together, Plaintiff remained conscious and alert with stable vital signs. (Id. at 62.) EMT
Goodwin observed that Plaintiff was in pain, and Plaintiff informed EMT Goodwin that he had
injured his right leg in a physical altercation with Mr. Miale. (Id. at 38-40.) EMT Goodwin
attempted to give Plaintiff an IV with morphine for the pain, but the IV could not be successfully
inserted. (Nassau Cty. Patient Care Report at 2; Goodwin Dep. Tr. 65, 84.)

After Plaintiff was loaded onto the ambulance, the ambulance remained at the scene for
approximately one hour and fifty minutes before departing for Nassau University Medical Center
at approximately 11:40 p.m. (Nassau Cty. Patient Care Report at 2; Dias Dep. Tr. 99.) Plaintiff
alleges that, during this time, the Nassau County police officers asked him what happened and
he informed the officers that he wanted to press charges, and the officers repeatedly asked Plaintiff

if he wanted to drop the charges against Mr. Miale. (Id. at 26-27.) Plaintiff alleges that the officers
informed him that he would be arrested if he did not drop the charges because Mr. Miale also
wanted to press charges against him. (Id. at 27.) Plaintiff alleges that he told the officers that he
had a broken leg and needed to go to the hospital and repeatedly confirmed that he wanted to press
charges against Mr. Miale. (Id.) According to Plaintiff, the ambulance only left to go to the
hospital after his wife called an attorney, who then called the police station and asked why Plaintiff
was not being transported to the hospital. (Compl. ¶ 60; Pl. Dep. Tr. 34-35.) Plaintiff alleges that
a police supervisor then arrived at the scene, and Plaintiff was transported to the hospital shortly
thereafter. (Pl. Dep. Tr. 35.)

As noted earlier, Plaintiff testified at his deposition that while he was being helped onto the
stretcher he was “screaming and yelling” in pain. (Pl. Dep. 23–24.) Additionally, Plaintiff told
EMT Goodwin and the officers that he had injured his leg and needed to go to the hospital. (Id. at
27.) There is, however, no other evidence concerning what, if anything, Plaintiff told EMT
Goodwin or officers about the pain he was experiencing while Plaintiff was waiting in the
ambulance.
According to EMT Goodwin, he believed the officers were conducting their investigation
into the incident during the time in which the ambulance remained on the scene. (Defs.’ 56.1 ¶ 17;

Goodwin Dep. Tr. 43.) This investigation included taking statements from Plaintiff, Mr. Miale,
and an eyewitness who observed the physical altercation. (Defs.’ 56.1 ¶ 17.) The eyewitness
informed officers in a sworn supporting deposition that he observed both Plaintiff and Mr. Miale
punching each other. (B. May Dep.) After determining that probable cause existed to make arrests,
the officers arrested both Plaintiff and Mr. Miale for Assault in the third degree. (Defs.’ 56.1 ¶ 19.)
to press charges and never attempted to discourage him from pressing charges. (Dias Dep. Tr. 93,

106.)
At his deposition, Officer Dias testified that, according to Nassau County Police
Department policy, two officers must accompany an arrestee who is being transported to the
hospital. (Id. at 67.) According to Officer Dias, this may have been a reason for the one hour and
fifty-minute delay before the ambulance left to go to the hospital. (Id. at 108, 118-20.)
At approximately 12:00 a.m., Plaintiff arrived at the hospital, where he received x-ray scans
and was diagnosed and treated for a right tibial pilon fracture and right fibula fracture. (Compl. ¶
37; Pl. Dep. Tr. 42.) At the hospital, Plaintiff was given fentanyl for his pain and subsequently

underwent multiple surgeries to treat and stabilize the fractures in his right leg. (Pl.’s Opp. 11;
Nassau Medical Record, ECF Nos. 33-23, 33-24 at 6, 204.) Nassau County police officers
accompanied Plaintiff to the hospital, where they took a sworn witness statement from him based
on his account of the altercation with Mr. Miale. (Pl. Dep. Tr. 37-38; Dias Dep. Tr. 84-86.) The
assault charge against Plaintiff was eventually dismissed on March 21, 2022. (Pl.’s Cert. of
Disposition, ECF No. 33-31.)
On August 26, 2021, Plaintiff commenced this civil rights action by filing the Complaint
against the Defendants. (ECF No. 1.) In the Complaint, Plaintiff asserts causes of action under 42

U.S.C. § 1983 (“Section 1983”) for false arrest, malicious prosecution, violation of right to
counsel, deliberate indifference, and conspiracy. (See ECF No. 1.) Plaintiff brought his claims
against Nassau County as a municipal corporation and against Nassau County Police Department
and Nassau County Police Emergency Ambulance Bureau as public benefits corporations. (Id. ¶¶
14-17.)
judgment, which was filed on April 29, 2024. (ECF No. 33.)

II. LEGAL STANDARDS
A. Summary Judgment
Summary judgment must be granted when there is “no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “An issue
of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party. A fact is material if it might affect the outcome of the suit under the governing
law.” Choi v. Tower Research Capital LLC, 2 F.4th 10, 16 (2d Cir. 2021); see McKinney v. City
of Middletown, 49 F.4th 730, 737 (2d Cir. 2022) (“No genuine dispute of material fact exists when
the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.”)
(internal quotation marks omitted). “The moving party bears the initial burden of showing that

there is no genuine dispute as to a material fact.” Jaffer v. Hirji, 887 F.3d 111, 114 (2d Cir. 2018)
(internal quotation marks omitted). For any burden of proof that rests with the nonmoving party,
the movant can “point[ ] to a lack of evidence to go to the trier of fact on an essential element of
the nonmovant’s claim.” Id. (internal quotation marks and alterations omitted). Once the moving
party carries its burden, “the nonmoving party must come forward with evidence that would be
sufficient to support a jury verdict in its favor.” McKinney, 49 F.4th at 738 (internal quotation
marks omitted). In this analysis, the Court must “construe the evidence in the light most favorable
to the non-moving party and draw all reasonable inferences in its favor.” ING Bank N.V. v. M/V
Temara, 892 F.3d 511, 518 (2d Cir. 2018). Ultimately, “[t]he role of the district court on summary

judgment is ‘not to resolve disputed issues of fact but to assess whether there are any factual issues
to be tried.’” McKinney, 49 F.4th at 738 (quoting Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.
2011)).
Plaintiff failed to submit a statement in opposition to Defendants’ summary judgment

motion pursuant to Rule 56.1 of the Local Rules of the United States District Courts for the
Southern and Eastern Districts of New York (“56.1 statement”). In moving for summary judgment
or answering such a motion pursuant to Rule 56, litigants in this district are required by the Local
Rules to provide a statement setting forth purported undisputed facts or, if controverting any fact,
responding to each assertion. Local Rule 56.1(a)–(b); see Genova v. County of Nassau, 851 F.
App’x 241, 243 (2d Cir. 2021) (noting the requirements under Local Rule 56.1). In both instances,
the party must support its position by citing to admissible evidence from the record. Local Rule
56.1(b), (d); see also Fed. R. Civ. P. 56(c) (requiring reliance on admissible evidence in the record
in supporting or controverting a purported material fact). “[Local] Rule 56.1 is strict: ‘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.’” Genova, 851 F. App’x at 243 (first quoting Local Rule 56.1(c);
and then citing T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 418 (2d Cir. 2009)). “In the typical
case, failure to respond [to a 56.1 statement] results in a grant of summary judgment once the court
assures itself that Rule 56’s other requirements have been met.” Genova, 851 F. App'x at 243
(alteration in original) (quoting T.Y., 584 F.3d at 418).
Since Plaintiffs did not submit a Rule 56.1 Statement, the Court may deem the facts in
Defendant’s 56.1 Statement as admitted where supported by the record. See Est. of Keenan v.

Hoffman-Rosenfeld, 833 F. App’x 489, 491 (2d Cir. 2020) (“[The] district court did not abuse its
discretion in deeming admitted the facts set forth in the [defendants’ 56.1 statements] . . . [where
the] defendants submitted statements of facts with numbered paragraphs and in response, [the]
statements.”). Still, the Court retains “broad discretion . . . to overlook a party’s failure to comply

with local court rules.” Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001). Even in
exercising this discretion, however, after having “conduct[ed] an assiduous review of the record,”
id., the Court nonetheless grants Defendants’ motion for summary judgment.
C. Section 1983
“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); see 42
U.S.C. § 1983. “It is well-settled that § 1983 does not create a federal right or benefit; it simply
provides a mechanism for enforcing a right or benefit established elsewhere.” Morris-Hayes v.

Bd. of Educ., 423 F.3d 153, 159 (2d Cir. 2005); see Moroughan v. Cnty. of Suffolk, 514 F. Supp.
3d 479, 511 (E.D.N.Y. 2021) (similar). Accordingly, “[t]he factors necessary to establish a § 1983
violation will vary with the constitutional provision at issue because the elements of different
constitutional violations vary.” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (internal
quotation marks and alterations omitted); see Albright v. Oliver, 510 U.S. 266, 271 (1994) (“The
first step in any [Section 1983] claim is to identify the specific constitutional right allegedly
infringed.”).
A Section 1983 claim against a municipality is governed by Monell v. Dep’t of Soc. Servs.
of City of New York, 436 U.S. 658 (1978) and its progeny. “Monell expressly prohibits respondeat

superior liability for municipalities . . . meaning that a plaintiff must demonstrate that ‘through its
deliberate conduct, the municipality was the “moving force” behind the injury alleged.’” Agosto
v. N.Y.C. Dep’t of Educ., 982 F.3d 86, 97-98 (2d Cir. 2020) (quoting Bd. of the Cty. Comm’rs v.
Brown, 520 U.S. 397, 404 (1997)). “The elements of a Monell claim are (1) a municipal policy or
Id. at 97; see Frost v. New York City Police Dep’t, 980 F.3d 231, 257 (2d Cir. 2020).

III. DISCUSSION
A. The Claims Against the Nassau County Police Department and the Nassau County
Police Emergency Ambulance Bureau Must Be Dismissed
Defendants contend that the Nassau County Police Department and Nassau County Police
Emergency Ambulance Bureau must be dismissed as non-suable entities. (See Defs.’ Br. at 4-5).
Plaintiff failed to respond to those arguments. (See generally, Pl.’s Opp.) Courts may “infer from
a party’s partial opposition [to summary judgment] that relevant claims or defenses that are not
defended have been abandoned.” Jackson v. Fed. Express, 766 F.3d 189, 198 (2d Cir. 2014).
Accordingly, Plaintiff abandoned those claims. See id. at 196-97 (affirming dismissal of claims as
abandoned during summary judgment briefing); Malik v. City of N.Y., 841 F. App’x 281, 284 (2d
Cir. 2021) (similar).
Even if Plaintiff had not abandoned them, the claims against the Nassau County Police
Department and Nassau County Police Emergency Ambulance Bureau must be dismissed. “Under
New York law, departments that are merely administrative arms of a municipality do not have a

legal identity separate and apart from the municipality and, therefore, cannot sue or be sued.” Rose
v. Cnty. of Nassau, 904 F. Supp. 2d 244, 247 (E.D.N.Y. 2012) (collecting cases). Indeed, courts in
this district have repeatedly held that Nassau County Police Department is not a suable entity. See,
e.g., Burris v. Nassau County, No. 11-CV-0119, 2015 WL 8665445, at *3 (E.D.N.Y. 2015)
(dismissing claims against NCPD as a non-suable entity); Stewart v. Nassau County, No. 12-CV-
0320, 2014 WL 204615, at *3 (E.D.N.Y. 2014) (same). Accordingly, the claims against Nassau
County Police Department and Nassau County Police Emergency Ambulance Bureau are
dismissed.
Conspiracy Claims
Defendants’ motion for summary judgment argues that they are entitled to judgement as a
matter of law with respect to all of Plaintiff’s causes of action and that therefore all of Plaintiff’s
claims must be dismissed. (Defs.’ Br. at 2, 6-7.) Plaintiff’s opposition only responds by arguing
that he has established a claim for deliberate indifference due to a delay in medical treatment. (See
generally Pl.’s Opp.) Plaintiff has therefore abandoned the claims for false arrest, malicious
prosecution, violation of right to counsel, and conspiracy.

Since Plaintiff only responds to Defendants’ motion for summary judgment by arguing that
he has established a deliberate indifference claim for a delay in medical care, the Court finds that
Plaintiff has abandoned all other claims. See Banyan v. Sikorski, No. 17-CV-4942, 2021 WL
2156226, at *2 (S.D.N.Y. 2021) (concluding that the plaintiff abandoned claims where the plaintiff
“provided no argumentation in his brief in opposition explaining why [certain] claims . . . should
not be dismissed”) (citing Taylor v. Rodriguez, 238 F.3d 188, 196–97 (2d Cir. 2001)).
Even if Plaintiff had not abandoned these claims, the claims must be dismissed because
Plaintiff has not alleged any facts to support municipal liability for these claims. “To establish

municipal liability under 42 U.S.C. § 1983, a plaintiff must demonstrate that the deprivation of his
constitutional rights was “caused by a governmental custom, policy, or usage of the municipality.”
Deferio v. City of Syracuse, 770 F. App’x 587, 589 (2d Cir. 2019) (citing Jones v. Town of E.
Haven, 691 F.3d 72, 80 (2d Cir. 2012)). Absent such a custom, policy, or usage, a municipality
cannot be held liable based on a respondeat superior basis for the acts of its employees. Monell,
436 U.S. at 691. Beyond the facts of his own isolated incident, Plaintiff has not identified sufficient
evidence suggesting the existence of any Nassau County municipal policy or custom with respect
to these claims. See Jones, 691 F.3d at 81. Therefore, because there is no evidence from which a
reasonable jury could find that these alleged violations of Plaintiff’s rights were the result of a
claims.

Accordingly, the Court grants Defendants’ motion for summary judgment as to Plaintiff’s
false arrest, malicious prosecution, violation of right to counsel, and conspiracy claims.
C. The Deliberate Indifference Claim Fails
Defendants argue that they are entitled to summary judgment on Plaintiff’s deliberate
indifference to medical needs claim because Officer Dias and EMT Goodwin immediately
rendered aid to Plaintiff upon arriving at the scene and because the delay in transporting Plaintiff
to the hospital does not constitute deliberate indifference. (See Defs.’ Br. at 11-12.) Defendants
assert that Plaintiff’s deliberate indifference claim fails as a matter of law because “it does not

satisfy the two-part test adopted by the Second Circuit.” (Id. at 12.)
A pretrial detainee’s claim for deliberate medical indifference is analyzed under the
Fourteenth Amendment. See Bruno v. City of Schenectady, 727 F. App’x 717, 720 (2d Cir. 2018);
accord Sims v. City of New York, 788 F. App’x 62, 63 (2d Cir. 2019).2 To succeed under the
Fourteenth Amendment standard, a plaintiff must satisfy: (1) “an objective prong showing that the
challenged conditions were sufficiently serious to constitute objective deprivations of the right to
due process;” and (2) a subjective prong “showing that the defendants acted with at least deliberate
indifference to the challenged conditions.” Sims, 788 F. App’x at 63 (internal quotation marks and
alterations omitted). “The [first prong] requires a condition of urgency, one that may produce

death, degeneration, or extreme pain.” Bruno, 727 F. Apex at 720 (internal quotation marks
omitted). The second prong requires proof that the defendant either “acted intentionally to impose

2 Plaintiff’s opposition brief incorrectly cites to the Eighth Amendment in arguing that he has established a deliberate
indifference claim, but it is clearly established that a pretrial detainee’s deliberate indifference claims are evaluated
under the Fourteenth Amendment. See Valdiviezo v. Boyer, 752 F. App’x 29, 32 (2d Cir. 2018); Darnell v. Pineiro,
849 F.3d 17, 29 (2d Cir. 2017)). Furthermore, Plaintiff’s claim for torture is duplicative of his Fourteenth Amendment
deliberate indifference claim and therefore analyzed as part of this claim.
condition posed to the pretrial detainee even though the defendant[ ] knew, or should have known,

that the condition posed an excessive risk to health or safety.” Id. (emphasis, internal quotation
marks, and citation omitted).
When the basis for a plaintiff’s claim is “a temporary delay or interruption in the provision
of otherwise adequate medical treatment, it is appropriate to focus on the challenged delay or
interruption in treatment rather than the [plaintiff’s] underlying medical condition alone in
analyzing whether the alleged deprivation is, in objective terms, sufficiently serious.” Smith v.
Carpenter, 316 F.3d 178, 186 (2d Cir. 2003) (internal quotation marks omitted). “Stated differently,
‘it’s the particular risk of harm faced by the [plaintiff] due to the challenged deprivation of care,

rather than the severity of the [plaintiff’s] underlying medical condition, considered in the abstract,
that is relevant for [Section 1983] purposes.’” Goris v. Breslin, 402 F. App’x 582, 585 (2d Cir.
2010) (quoting Smith, 316 F.3d at 186). In considering whether a delay caused a risk of harm, a
court may consider “[t]he absence of adverse medical effects or demonstrable physical injury.”
Smith, 316 F.3d at 187. Although a delay in providing necessary medical care may in some cases
constitute unconstitutional deliberate indifference, such a classification is reserved for when
“officials deliberately delayed care as a form of punishment; ignored a ‘life-threatening and fast-
degenerating’ condition for three days; or delayed major surgery for over two years.” Sims, 788
F. App’x at 64 (quoting Demata v. N.Y. State Corr. Dep’t of Health Servs., 198 F.3d 233 (2d Cir.
1999).

1. Plaintiff Failed To Satisfy the Objective Prong
Plaintiff’s deliberate indifference claim based on delayed treatment fails to demonstrate the
existence of a genuine issue of fact as to the first prong regarding a serious risk of harm. Only one
hour and fifty minutes elapsed between the ambulance arriving at the scene and Plaintiff being
injury was in any way exacerbated or at serious risk of exacerbating as a result of this delay. While

the Court recognizes that Plaintiff suffered serious injuries with regards to his right tibial pilon
fracture and right fibula fracture, Plaintiff’s allegations do not show how Defendants’ actions
worsened his condition or resulted in any specific harm owing to the delay in his treatment.
Although Plaintiff alleged that he remained in pain during the one hour and fifty-minute wait, he
does not allege that the delay exacerbated his injuries. See Valdiviezo v. Boyer, 752 F. App’x 29,
32 (2d Cir. 2018) (affirming district court’s dismissal of claim based on delay of medical care
because “[a]lthough [Plaintiff] alleged that he remained in pain during the hour-long wait, he [did]
not allege that the delay exacerbated his injuries.”)

In Washington v. Artus, 708 F. App’x 705, 708 (2d Cir. 2017), the Second Circuit affirmed
a district court’s grant of summary judgment on a deliberate indifference claim where the plaintiff
had argued that the defendants demonstrated deliberate indifference to his broken ankle by
allowing four hours to pass before transporting him to the emergency room. Id. at 708-09. In
Washington, the Second Circuit noted that the plaintiff “proffered no evidence, nor did he even
allege, that any delay exacerbated his injury.” Id. The Second Circuit also observed that
“defendants carried [Plaintiff] on a stretcher to the infirmary soon after the incident, treated his
broken ankle with a splint and ice, and arranged to have him transported to the emergency room
after consulting with an outside doctor.” Id. The Second Circuit went on to hold that “on this
record, no reasonable jury could find that the approximately four hours that elapsed between his

injury and his arrival at the emergency room was a sufficiently serious deprivation of medical care
or that the defendants were deliberately indifferent to his needs during that period.” Id.
Here, as in Washington, no reasonable jury could find that the one hour and fifty minutes
that elapsed between Plaintiff’s injury and his transportation to the emergency room was a
Officer Dias immediately requested EMS and began rendering aid to Plaintiff by speaking to him,

evaluating his injuries, and checking for blood loss. (Defs.’ 56.1 ¶ 14; Dias Dep. Tr. 62.) Officer
Dias observed that Plaintiff was conscious, alert, and breathing at this time. (Dias Dep. Tr. 62.)
Approximately six minutes after Nassau County police officers arrived at the scene, EMS arrived,
and EMT Goodwin worked with officers to stabilize Plaintiff’s injuries by helping him onto a
stretcher and placing him in the ambulance. (Goodwin Dep. Tr. 37-40; Nassau Cty. Patient Care
Report at 2.) EMT Goodwin took Plaintiff’s vital signs and noted that Plaintiff was stable,
breathing, talking, and able to hold a conversation with a normal demeanor. (Goodwin Dep. Tr.
40, 48-49.) EMT Goodwin attempted to give Plaintiff an IV with morphine for the pain, but the
IV could not be successfully inserted. (Nassau Cty. Patient Care Report at 2; Goodwin Dep. Tr.

65, 84.) Once he arrived at the hospital, Plaintiff was given fentanyl for his pain and subsequently
underwent multiple surgeries to treat and stabilize the fractures in his right leg. (Pl.’s Opp. at 11;
Nassau Medical Record at 6, 430.)
Courts have consistently rejected deliberate indifference claims under circumstances
involving relatively brief delays or interruptions in treatment and a dearth of evidence that the
plaintiff’s pain or medical condition worsened as a result. See, e.g., Davis v. Furey, No. 19-CV-
1867, 2021 WL 2827366, at *6 (D. Conn. 2021) (“Davis has not presented any evidence that he
experienced any serious risk of harm as a result of the asserted two-hour delay in receiving
treatment . . .”); Liverpool v. Davis, 442 F. Supp. 3d 714, 737 (S.D.N.Y. 2020) (granting summary

judgment where plaintiff waited three hours for medical treatment but did “not allege[ ] that the
delay in treatment caused his condition to worsen”); Rodriguez v. Mercado, No. 00-CV-8588,
2002 WL 1997885, at *9 (S.D.N.Y. 2002) (dismissing deliberate indifference claim based on eight
or nine-hour delay, and noting that patients “seeking care for a non-life-threatening injury generally
that Plaintiff was in pain in the ambulance while awaiting transportation to the hospital, his stable

vital signs and consistent ability to hold a conversation with a normal demeanor indicate that he
was not in the type of “extreme pain” that might potentially be sufficient to satisfy objective prong
of the analysis.3 Compare Martinez v. City of New York, 564 F. Supp. 3d 88, 105 (E.D.N.Y. 2021)
(finding objective prong satisfied on summary judgment in light of evidence that plaintiff was
“screaming and crying” for hours and repeatedly told an officer that she was in too much pain to
be fingerprinted), with Ridge v. Davis, 18-CV-8958, 2022 WL 357020, at *15 (S.D.N.Y. 2022)
(granting summary judgment where plaintiff’s “sporadic complaints as well as [his] ability to hold
a conversation” indicated that he was not in the type of “extreme pain” to potentially satisfy the
objective prong).

Moreover, although Plaintiff alleges that the Officers were punishing him and attempting
to pressure him not to press charges against Mr. Miale during the time he was waiting in the
ambulance, this conclusory assertion is not enough to survive summary judgment. According to
Plaintiff, the officers repeatedly asked Plaintiff if he wanted to drop the charges against Mr. Miale
when he was in the ambulance and informed him that he would be arrested if he did not drop the
charges because Mr. Miale also wanted to press charges against him. (Pl. Dep. 26-27.) Plaintiff
alleges that he repeatedly responded that he wanted to press charges and that the officers were
keeping him on the scene in an attempt to dissuade him from pressing charges. (Id.) However,
there is no evidence specifically connecting the alleged delay in Plaintiff’s treatment to an

improper motive, and Plaintiff’s claim cannot survive solely on the basis of this conclusory
allegation. Compare Ridge, 2022 WL 357020, at *15 (S.D.N.Y. 2022) (holding that “no rational

3 As noted earlier, while there is evidence that Plaintiff was screaming when being placed in the ambulance, there is
no further evidence indicating what, if any, complaints about pain Plaintiff made to officers and EMT Goodwin after
Plaintiff was placed into the ambulance. Instead, EMT Goodwin observed that Plaintiff was stable, breathing, talking,
and able to hold a conversation with a normal demeanor. (Goodwin Dep. Tr. 40, 48-49.)
defendant allegedly told plaintiff he “shouldn’t have made [defendant] run like that” after

apprehending him), with Cumberbatch v. Port Auth. of New York & New Jersey, 2006 WL
3543670, at *2, *9 (S.D.N.Y. Dec. 5, 2006) (finding genuine issues of material fact as to officers’
intent to delay treatment as punishment due to evidence that “continued requests for medical
attention were met with” an officer’s reply that “they wanted him to ‘marinate’”). Based on this
record, a reasonable jury could not find that the “officials deliberately delayed care as a form of
punishment.” Sims, 788 F. App’x at 64.4
Other than his assertion of suffering pain while he was in the ambulance, Plaintiff has
adduced no evidence that his underlying conditions worsened due to the short delay between being

place in the ambulance and arriving at the hospital. Although Plaintiff may have experienced pain
resulting from his injury while he waited to go to the hospital, no evidence suggests that the delay
exacerbated his pain or injury. As such, the brief delay in Plaintiff’s medical treatment after his
injury is insufficient to satisfy the objective prong of a Fourteenth Amendment deliberate
indifference claim. See Washington, 708 F. App’x at 709 (holding that four-hour delay in treating
plaintiff’s broken ankle did not constitute sufficiently serious deprivation of medical treatment);
Valdiviezo, 752 F. App’x at 32 (holding that one-hour delay in treating plaintiff who complained
of “excruciating pain” after a fall did not constitute sufficiently serious deprivation of medical
treatment); see also Martin v. City of N.Y., No. 11-CV-4507, 2016 WL 11431027, at *5 (E.D.N.Y.

4 Furthermore, in order to allege municipal liability as part of Plaintiff’s Monell claim for deliberate indifference,
Plaintiff must demonstrate that the deprivation of his constitutional rights was “caused by a governmental custom,
policy, or usage of the municipality.” Deferio, 770 F. App’x at 589. Plaintiff’s only argument in support of
municipal liability for this claim is that the police officers delayed transporting him to the hospital while acting
pursuant to Nassau County Police Department policy, which allegedly requires two officers to accompany an
arrestee who is being transported to the hospital. (Pl.’s Opp. at 13-14.) Plaintiff, however, has not pointed to any
municipal policy or custom involving Nassau County police officers delaying treatment in order to discourage
citizens from pressing charges (or even more generally, delaying treatment in order to punish citizens). Therefore,
even if there was a disputed factual issue as to whether the individual officers intentionally delayed Plaintiff’s
treatment as a form of punishment, Plaintiff could still not prevail because he does not have a viable Monell claim
based on this theory.
than two hours] in treatment in any way exacerbated plaintiff's injury or caused him any harm

except for the discomfort and . . . pain he experienced while waiting to receive treatment”).
As such, the Court finds that a reasonable trier of fact could only determine that the delay
in Plaintiff’s treatment did not amount to a substantial risk of serious harm.
2. Plaintiff Failed to Satisfy the Subjective Prong
Additionally, the record is inadequate to support a finding that the officers or the EMT
acted with deliberate indifference to satisfy the second prong. “A plaintiff can prove deliberate
indifference by showing that the [municipal actor] recklessly failed to act with reasonable care to
mitigate the risk that the condition posed to the pretrial detainee even though the [municipal actor]

knew, or should have known, that the condition posed an excessive risk to [the plaintiff’s] health
or safety.” Charles v. Orange County, 925 F.3d 73, 87 (2d Cir. 2019) (alteration in original)
(emphasis and quotation omitted).
There is nothing in the record here to suggest that the police officers or EMT Goodwin
“recklessly failed to act with reasonable care” to mitigate the risk that Plaintiff’s injuries posed to
him. Instead, as noted supra, Officer Dias immediately rendered aid to Plaintiff and called EMS
upon arriving at the scene. (Defs.’ 56.1 ¶ 13; Dias Dep. Tr. 55.) The officers and EMT Goodwin
then helped Plaintiff onto a stretcher and placed him in the ambulance, stabilizing his injured leg.
(Goodwin Dep. Tr. 38-40.) EMT Goodwin treated Plaintiff by taking his vital signs and noted that

throughout the entire time they were together, Plaintiff remained conscious and alert with stable
vital signs. (Goodwin Dep. Tr. 40, 48-49, 62.) EMT Goodwin also attempted to administer
morphine to Plaintiff on the scene. The record is devoid of evidence to suggest that the officers
and EMT Goodwin knew or should have known that the one hour and fifty-minute delay in
transporting Plaintiff to Nassau University Medical Center would result in a serious risk of harm
him pain, the record reflects that Plaintiff remained stable, conscious, and alert throughout the time

period that the officers and EMT Goodwin were with him. (Defs.’ 56.1 ¶ 16; (Goodwin Dep. Tr.
40, 48-49, 62.); see Stewart v. City of New York, No. 15-CV-4335, 2018 WL 1633819, at *9
(S.D.N.Y. 2018) (dismissing deliberate indifference claim where defendants “took various steps to
alleviate [plaintiff’s] pain and discomfort.”).
Accordingly, Defendants’ motion for summary judgment regarding Plaintiff’s deliberate
indifference claim is granted in its entirety.
3. Municipal Liability

Plaintiff cannot establish municipal liability under Monell because Plaintiff has failed to
show that the municipal actors committed any underlying constitutional violations. Where, as
here, a plaintiff brings a Section 1983 claim against a municipality, the plaintiff’s failure to show
that the municipal actors committed the underlying constitutional tort “preclude[s] a judgment
against the municipality.” Askins v. Doe, 727 F.3d 248, 253 (2d Cir. 2013). As explained above,
a reasonable jury could not find for Plaintiff on his deliberate indifference to medical needs claim.
(See supra Section III. C.) Accordingly, Plaintiff’s claim for municipal liability based on this
violation must be dismissed. See Goe v. Zucker, 43 F.4th 19, 34 (2d Cir. 2022) (affirming dismissal
of Monell claim for lack of an underlying constitutional violation by the individual municipal

actors).
For the reasons stated above, Defendants’ motion for summary judgment is GRANTED

and this action is DISMISSED.
SO ORDERED.
Dated: January 30, 2025
Central Islip, New York
/s/ (JMA)
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10791026. Public record. Not legal advice.