# Summers

> District Court, S.D. New York · September 29, 2025

URL: https://www.frixlaw.com/law-library/cases/11222587

## Case

- **Full name:** Baysir Summers v. Christopher Perry, Santos Deleon, and Wolf
- **Court:** District Court, S.D. New York
- **Decided:** September 29, 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/11222587

## How later opinions describe it (automated extraction)

- reversing a grant of summary judgment for defendants where correctional officers’ failure to act on a four-month-old threat was deemed unreasonable after Plaintiff was attacked by gang members

## Opinion text

USDC SDNY
UNITED STATES DISTRICT COURT DOCUMENT
SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED
BAYSIR SUMMERS, ae peas ODS
Plaintiff,
~against- 23-cv-10784 (NSR)

CHRISTOPHER PERRY, SANTOS
DELEON, AND WOLF,
Defendants.

NELSON S. ROMAN, United States District Judge:
Pro se Plaintiff Baysir Summers (“Plaintiff”) initiated this action on December 11, 2023,
alleging deprivation of rights under 42 U.S.C. § 1983 (“Section 1983”), claiming violations of the
Eighth Amendment and Fourteenth Amendment, as well as bringing forth a negligence claim
against Superintendent Edward Burnett (““Supt. Burnett” or “Bumett”), Sergeant Nicholas Cicala
(“Cicala”), Correctional Officer Marianna Cordovano (“Cordovano”), Correctional Officer
Christopher Perry (“Perry”), Sergeant Santos Deleon (“Deleon”), and Wolf (a medical examiner)
(collectively, “Defendants”). (ECF No. 1, “Compl.”)
Presently before the Court is Defendants’ Motion to Dismiss pro se Plaintiff’s claims
pursuant to Federal Rules of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”). ECF No. 28 & 29.) For
the following reasons, the motion is GRANTED in part and DENIED in part.
BACKGROUND
The following facts are derived from the Complaint and are taken as true and constructed
in the light most favorable to the Plaintiff at this stage.
Plaintiff, while incarcerated within the Fishkill Correctional Facility (“Fishkill”), was
approached by two unidentified prisoners demanding that Plaintiff pay them $500 if he wished to

stay in the housing unit B-West. (Compl. ¶ 1.) Plaintiff states that B-West was “known throughout
the facility for being a Gang run dormitory.” (Id. ¶ 2.) Plaintiff approached Cordovano and advised
him “the[re] was a t[h]reat to [his] safety.” (Id. ¶ 5.) Deleon was also informed of the threat. (Id. ¶
6.) Later on, Plaintiff also told Perry and a female corrections officer (“Jane Doe #1”) of his
concern for the perceived threat to his safety. (Id. ¶ 8.) On a separate occasion, Plaintiff further
informed Cicala that gang members were attempting to extort him in the amount of $500 and that
there was a threat to his safety. (Id. ¶ 15.) Beyond stating that gang members were demanding $500
from Plaintiff and stating generally there was a threat to his safety, Plaintiff does not offer any
allegations as to the specifics of the threats made by the gang members, who the gang members
were, and whether there was a culture and history of violence and threats to prisoners’ safety at

Fishkill. (See generally Id.)
After speaking with Cicala, Plaintiff “was suddenly jumped by . . . about 5 prisoners from
the housing unit and was severely injured.” (Id. ¶ 20.) Plaintiff states that he cried out in pain, at
which point “the officer c[a]me out of his office and pulled his pin,” which made the assailants
immediately leave. (Id. ¶ 22.) Plaintiff was then escorted to the medical unit by the security team.
(Id. ¶ 26.)
Based on the foregoing, Plaintiff brings Section 1983 claims alleging violations of the
Eighth Amendment and Fourteenth Amendment, as well as a state law claim of negligence against
Defendants.

PROCEDURAL HISTORY
On December 11, 2023, Plaintiff commenced this action against Defendants in his
Complaint. (ECF No. 1). On August 30, 2024, Defendants filed their motion to dismiss and
memorandum of law in support. (ECF Nos. 28 and 29.) Plaintiff did not file an opposition, and
therefore Defendants did not file a reply in further support of their motion.
LEGAL STANDARD
A. Rule 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), dismissal is proper unless the complaint
“contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). When there are well-pled factual allegations in the complaint, “a court
should assume their veracity and then determine whether they plausibly give rise to an entitlement
to relief.” (Id. at 679.) While the Court must take all material factual allegations as true and draw
reasonable inferences in the non-moving party’s favor, the Court is “not bound to accept as true a
legal conclusion couched as a factual allegation,” or to credit “mere conclusory statements” or

“[t]hreadbare recitals of the elements of a cause of action.” (Id. at 678) (quoting Twombly, 550
U.S. at 555). The Second Circuit “deem[s] a complaint to include any written instrument attached
to it as an exhibit or any statements or documents incorporated in it by reference . . . and documents
that plaintiffs either possessed or knew about and upon which they relied in bringing the suit.”
Rotham v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000) (internal citations omitted). The critical inquiry
is whether the Plaintiff has pled sufficient facts to nudge the claims “across the line from
conceivable to plausible.” Twombly, 550 U.S. at 570. A motion to dismiss will be denied where
the allegations “allow[] the court to draw the reasonable inference that the Defendant is liable for
the misconduct alleged.” Iqbal, 556 U.S. at 678.

B. Section 1983
Section 1983 provides, in relevant part, that “[e]very person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected,
any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws shall be liable to the party injured.” Section 1983 “is not itself
a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by
those parts of the United States Constitution and federal statutes that it describes.” Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979); see Patterson v. County of Oneida, 375 F.3d 206, 225
(2d Cir. 2004). To assert a claim under Section 1983, a plaintiff must allege “(1) the challenged
conduct was attributable to a person who was acting under color of state law and (2) the conduct
deprived the plaintiff of a right guaranteed by the U.S. Constitution.” Castilla v. City of New York,
No. 09-CV-5446(SHS), 2013 WL 1803896, at *2 (S.D.N.Y. April 25, 2013); see Cornejo v. Bell,
592 F.3d 121, 127 (2d Cir. 2010). Therefore, a Section 1983 claim has two essential elements: (1)
the defendant acted under color of state law, and (2) as a result of the defendant’ s actions, the
plaintiff suffered a denial of his federal statutory rights, or his constitutional rights or privileges.

See Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir. 1998); Quinn v. Nassau Cty. Police
Dep’ t, 53 F. Supp. 2d 347, 354 (E.D.N.Y. 1999) (Section 1983 “furnishes a cause of action for the
violation of federal rights created by the Constitution.”).
C. Pro Se Pleading Standard
Where a litigant is pro se, the Court is empowered to consider “new facts raised in
opposition papers to the extent they are consistent with the complaint, treating the new factual
allegations as amending the original complaint.” Davila v. Lang, 343 F. Supp. 3d 254, 267
(S.D.N.Y. 2018). A Court may consider “new claims appearing for the first time in the briefing ‘if
the claims could have been asserted based on the facts alleged in the complaint.” McFadden v.

Keyser, No. 23-CV-802 (NSR), 2025 WL 846371, at *3 (S.D.N.Y. Mar. 18, 2025) (citing Vlad-
Berindan v. MTA New York City Transit, No. 14-cv-675, 2014 WL 6982929, at *5 (S.D.N.Y. 2014).
Courts are to read a pro se litigant’s papers “liberally” and “interpret them to raise the strongest
argument that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 791 (2d Cir. 1994).
DISCUSSION
Plaintiff brings claims pursuant to Section 1983, alleging violations of the Eighth
Amendment and Fourteenth Amendment, as well as a state law claim of negligence. The Court
addresses them in turn.
A. Eighth Amendment Deliberate Indifference to Medical Needs Claim
For a Plaintiff to state an Eighth Amendment deliberate indifference claim, an objective and
subjective analysis must be satisfied. McFadden, 2025 WL 846371 at *4. In the case of showing
deliberate indifference to medical needs, the objective analysis requires that the Plaintiff show a
sufficiently serious deprivation was caused. In order to demonstrate a great deal of severity of
medical burden, the condition being suffered from must be, “one that may result in death,

degeneration, or chronic and substantial pain”. Green v. Senkowski, 100 F. App’x 45, 46 (2d Cir.
2004). The subjective analysis to show deliberate indifference to medical need requires a Plaintiff
to show that a Defendant acted with a culpable mindset, in which they intentionally deny care
and/or disregard known threat(s) to Plaintiff’s health or safety. Farmer v. Brennan, 511 U.S. 825,
834-37, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994).
Plaintiff claims that while being treated by Defendant ‘Wolf’, a medical personnel at
Fishkill Correctional Facility, the Defendant failed to sufficiently document the extent of Plaintiff’s
injuries, and “provide[d] the minimal care possible for the injuries sustained, especially for head
trauma, being ‘Deliberately Indifferent’ to [P]laintiff health, safety and medical care”. (Compl. ¶

29.) Plaintiff suggests that he requested both X-ray and MRI imaging, and these requests were
denied along with “proper medication”. (Id. ¶ 30.) The Plaintiff also states that he has continued
to, “request sick call and medical attention that goes unanswered and ignored, causing severe pain
and suffering, and worsening of conditions have occurred, with severe pain in plaintiff’s head,
neck, back, ribs, etc.” (Id. ¶ 41.) On account of these claims, Plaintiff alleges that his medical
conditions resulting from his sustained injuries have remained ongoing and have affected both his
physical and mental health.
In this instance, the Plaintiff’s deliberate indifference claim fails to satisfy both the
objective and subjective analysis that are required to assert an Eighth Amendment deliberate
indifference claim. As for the objective analysis, Plaintiff fails to suggest that the medical burden
and deprivation he experienced was serious enough to meet the required standard. The Plaintiff
alleges that his sustained injuries consisted of his, “neck, back, ribs, facial bruises, busted lip,
bloody nose, blacken eye, and [Plaintiff] was hit in the head with a blunt object that caused a severe
laceration on the top of my head, leaving a permanent scar.” (Id. ¶ 24.) Plaintiff also claims that
he continues to suffer from migraines and severe neck, back, and rib pain which cause him trouble

sleeping, along with depression and anxiety after the incident. (Id. ¶ 25.) While Plaintiff did sustain
injuries, his assertions lack specificity. He does not sufficiently allege that his conditions,
“contemplate a ‘condition of urgency’ that may result in ‘degeneration’ or ‘extreme pain’”. Chance
v. Armstrong, 143 F. 3d 698, 702 (2d Cir. 1998). The Plaintiff’s deliberate indifference claim also
fails subjective analysis, as Plaintiff does not offer substantive allegations that indicate Defendant
‘Wolf’ was acting with a culpable mindset. Plaintiff was treated by ‘Wolf’ who administered pain
relievers for his injuries and filled out a record in accordance with the Plaintiff’s visit to the health
facility. Disagreement with a medical treatment provided is not grounds for an Eighth Amendment
deliberate indifference claim, nor does it permit a subjective analysis that shows that a Defendant

is acting with a culpable mindset. Therefore, because Plaintiff is unable to satisfy the objective or
subjective component of an Eighth Amendment deliberate indifference to medical needs claim, the
motion to dismiss must be granted without prejudice.
B. Eighth Amendment Failure to Protect Inmate Claim
In order to make an Eighth Amendment failure to protect claim as an inmate, a Plaintiff
must be able to satisfy both an objective and subjective analysis which must conclude that a prison
official showed and acted with deliberate indifference to an inmate’s safety. McFadden, 2025 WL
846371 at *4.
The objective analysis requires that the prison official in question was made fully aware of
a substantial risk to an inmate’s safety and knew that the inmate was facing a serious risk of harm.
(Id.) The subjective analysis requires that after knowing of the objective risk to the inmate’s safety,
the prison official showed deliberate indifference to that risk by consciously disregarding it. (Id.)
Therefore, in order to be successful, failure to protect claims must show simultaneously that a

Plaintiff properly and clearly informed a Defendant of an excessive and unreasonable risk to their
safety, and that after learning of said risk, the Defendant acted in a way that was deliberately
indifferent to the Plaintiff’s concerns, which resulted in undue harm.
Plaintiff claims that upon being approached by gang members in his housing unit, B-West
at Fishkill, Plaintiff feared for his safety and sought protection from the correctional officer on

duty at the time, Defendant Cordovano, requesting that she allow Plaintiff to see the sergeant.
(Compl. ¶ 5.) After Defendant Cordovano allegedly informed Defendant Deleon, the sergeant on
duty, of Plaintiff’s concerns, Defendant Deleon informed the Plaintiff that his shift was over, and
that Plaintiff would have to seek assistance from the next tour sergeant. (Id. ¶ 6.) Afterward,
Plaintiff alleges that he was again approached by the gang members, who were, “clearly… agitated
and wanted to see results”. (Id. ¶ 7.) The Plaintiff next claims that he went to the correctional office
himself, where Defendant Perry and Defendant Jane Doe #1 were working, and “fully explained
to them [Defendants] both of the imminent danger I [Plaintiff] was in”. (Id. ¶ 8.) Plaintiff claims
that in response to his concerns, Defendants Perry and Jane Doe #1, “falsely informed [the
Plaintiff] that there wasn’t any sergeant on site”. (Id. ¶ 10.) Plaintiff then alleges pleading with
Defendant Perry to help him, and in response Defendant Perry told him to, “Go back to your
[Plaintiff] cubicle before you really are in danger.” (Id. ¶ 12.) When Plaintiff began to walk out of
the office, he then claims that he ran into Defendant Cicala, who was the tour sergeant on duty,
and “‘Fully informed him of everything going on’, and the fact that I [Plaintiff] was attempting to
be extorted by gang members”. (Id. ¶ 15.) Defendant Cicala allegedly told Plaintiff that he was
unable to address the threat and took Plaintiff back in front of the housing unit where the gang
members had been threatening Plaintiff. (Id. ¶ 16.) After Plaintiff once more pleaded with
Defendant Cicala to protect him from being “assaulted by these prisoners”, Defendant Cicala
reiterated that he could not help him, and left him in front of the housing unit, where Plaintiff was

“jumped and assaulted for on or about two minutes, by multiple prisoners”. (Id. ¶¶ 18-21.) After
the assault, Defendant Perry found the Plaintiff, then allegedly walked over to him and asked, “So
what happen you fell?”, before other security team members escorted Plaintiff to the medical unit.
(Id. ¶¶ 23-26.) (internal quotations omitted).
a. Whether Plaintiff Made Defendants Fully Aware of the Risk to His Safety.

Plaintiff does, at times, use conclusory language in his Complaint, such as stating that,
“[Plaintiff] fully explained to them both [Defendants Perry and Jane Doe #1] of the imminent
danger [he] was in”, “both officers [Defendants Perry and Jane Doe #1] were on notice and made
fully aware of a threat to [his] health and safety”, and, “[Plaintiff] immediately rushed to him
[Defendant Cicala] and ‘fully informed [Defendant Cicala] of everything going on’”. (Compl. ¶¶
8-9, 15). In order to state a §1983 claim, a Plaintiff must present specific allegations of misconduct
and identify specific individuals who have committed said misconduct, lest the allegations be
deficient for engaging in conclusory language and improper group pleading. Zielinski v.
Martuscello, No. 24-CV-150 (NSR), 2025 WL 1160357 at *2 (S.D.N.Y. Apr. 21, 2025).
These kinds of conclusory statements are not, however, wholly representative of the
content alleged in Plaintiff’s Complaint against Defendants Perry, Jane Doe #1, and Cicala in
particular. As per the United States Supreme Court, it is the duty of correctional officers, “to protect
prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833,
114 S. Ct. 1970, 1976 (1994)(quoting Cortes-Quiones v. Jimenez-Nettleship, 842 F.2d 556, 558
(1st Cir. 1988)). It is not the case that “[b]eing violently assaulted in prison” is a punishment that
is constitutional for those who are convicted of crimes, which is why the failure of a correctional
officer to protect an inmate from impending danger constitutes an Eighth Amendment violation.
(Id.)
Plaintiff avers that on the day that the assault took place, May 26, 2023, he informed

Defendant Cicala, “that I [Plaintiff] was attempting to be extorted by the gang members, and that
there was a threat to my [Plaintiff] health and safety.” (Compl. ¶ 15.) Plaintiff also asserts in his
Complaint that both Defendant Jane Doe #1 and Defendant Perry were informed that the Plaintiff
was facing “imminent danger”, and that there was “a threat to my [Plaintiff] health and safety”.
(Id. ¶¶ 8-9.) The concerns for his safety that Plaintiff alleges outlining to Defendants Perry, Jane
Doe #1, and Cicala are clear and specific; they describe that there is imminent danger, that
Plaintiff’s safety and health is at risk, and that the individuals who are threatening Plaintiff are
gang affiliated. While Plaintiff could not provide the specific names of his attackers, that does not
take away from Plaintiff’s allegations that he informed multiple officers on multiple occasions that

he feared for his safety, as he was being extorted by gang members. The fact that Plaintiff did not
know the exact names or identities of his future assailants—other than noting that they were
wearing the color red— does not make the threat of assault any less serious nor imminent. (Id. ¶
2.)
Defendants assert in their motion that the claims brought forth by the Plaintiff mirror those
in the case of Haughton v. Clinton, in which “Haughton offers only the conclusory allegation that
he ‘feared for [his] safety,’ without alleging that an attack was imminent or expected from a
particular inmate.” Haughton v. Clinton, No. 15-CV-1160 (JPO), 2015 WL 9244398 at *2
(S.D.N.Y. Dec. 17, 2015). This case is markedly different from Haughton, though, as Plaintiff
alleges that he both specified that the attack he would experience was “imminent”, and that his
attackers were “gang members” who were wearing red, even if he was unable to identify them by
name. (Compl. ¶¶ 2, 8, 15.) Other case law additionally points to threats of impending attack
warranting a response from correctional officers. For example, in the case of Gordon v. Drummond,
the Court stated, “If a correctional officer knows that a specific person or group intends to assault

a… inmate, the officer must take reasonable steps in response to the substantial risk posed.”
Gordon v. Drummond, No. 19CIV8405GBDGWG, 2021 WL 5314604, at *9 (S.D.N.Y. Nov. 16,
2021), report and recommendation adopted, No. 19CIV8405GBDGWG, 2022 WL 884971
(S.D.N.Y. Mar. 25, 2022). In this case, the inverse is true. Defendants were allegedly aware of a
substantial risk to an inmate’s safety, knew the identity of the inmate who would be attacked, but
did not know the identities of the attackers other than the fact that they were supposedly gang
members who were housed in B-West. When there is a substantial risk of safety being posed to an
inmate, there is an expectation that correctional officers will respond even if the response does not
ultimately prevent the attack. See Farmer, 511 U.S. at 841-42, 847.

Furthermore, Plaintiff’s assault would not constitute a “surprise attack”. Case law
corroborates this. Even if the attack had happened months in the future following the initial threat,
correctional officers still have a responsibility to protect an inmate from said attack if given
appropriate and specific notice of the threat. Lewis v. Siwicki, 944 F.3d 427, 433 (2d Cir. 2019)
(reversing a grant of summary judgment for defendants where correctional officers’ failure to act
on a four-month-old threat was deemed unreasonable after Plaintiff was attacked by gang
members). In this case, Plaintiff knew he would be attacked imminently and by whom, regardless
of whether he knew their specific names. Moreover, even if Defendants were unaware that gang
activity was supposedly prevalent within B-West, Plaintiff still allegedly relayed to the Defendants
that his attackers were gang-affiliated. (Compl. ¶ 2.)
b. Whether Defendants were Acting with a Culpable State of Mind
As aforementioned, in order to successfully fulfill the subjective prong to make an Eighth
Amendment failure to protect claim, a Plaintiff must allege that a prison official deliberately
disregarded an objective threat to a prisoner’s safety after learning that one exists. Here,
Defendants Perry, Jane Doe #1, and Cicala satisfy the requirements for this subjective analysis.

Defendant Perry and Jane Doe #1 were both allegedly informed of the specific threat to Plaintiff’s
safety, yet did not take reasonable action to prevent the attack. Once Defendants Perry and Jane
Doe #1 both supposedly heard from Plaintiff that he was in danger of being assaulted, both
Defendants were required to take some action to ensure the safety of Plaintiff, such as contacting
a superior who could separate Plaintiff from the assailants. In this case, Plaintiff’s concerns were
not addressed because Plaintiff was allegedly told that there was no sergeant on site and to “go
back to your [Plaintiff’s] cubical”. (Compl. ¶¶ 10, 12.) Allegedly aware that Plaintiff faced a
substantial risk and has been informed of a specific and imminent attack, Defendants Perry and
Jane Doe #1 were in a position to intervene or mitigate that risk but, according to Plaintiff, failed
to do so.

Defendant Cicala, similarly, was also allegedly informed of the specific threat to Plaintiff’s
safety. Plaintiff claims that he explained to Defendant Cicala the circumstances of which his attack
would occur—that he was being extorted by gang members and facing a threat to his health and
safety— and did not receive a reaction from Defendant Cicala that would constitute a reasonable
response to this threat. (Id. ¶ 15.) Furthermore—according to Plaintiff—rather than addressing the
risk to Plaintiff’s safety, Defendant Cicala asked Plaintiff to follow him back to the housing unit,
where the assailants were residing, and where Plaintiff claimed that the danger he was facing was
imminent. (Id. ¶ 17.) After purportedly being informed that an attack on Plaintiff was impending,
Defendant Cicala was in a position to intervene or mitigate the threats to Plaintiff’s safety but,
according to Plaintiff, did not do so. (Id. ¶ 18.)
As aforementioned, Plaintiff has sufficiently pled a failure to protect claim against
Defendant Perry, Defendant Jane Doe #1, and Defendant Cicala, and the Court declines to dismiss
Plaintiff’s Eighth Amendment failure to protect claims against these Defendants.
Conversely, the Eighth Amendment failure to protect claims against Defendant Burnett, are

a matter of supervisory liability, which Plaintiff improperly relies on, and do not meet the
requirements for Plaintiff to bring forth a §1983 claim against him. See Richardson v. Goord, 347
F.3d 431, 435 (2d Cir. 2003) (“[M]ere linkage in the prison chain of command is insufficient to
implicate a state commissioner of corrections or a prison superintendent in a § 1983 claim.”).
Defendants Deleon and Cordovano, while meeting the criteria for the objective analysis required
to make a failure to protect claim, do not satisfy the subjective prong. Defendant Cordovano, after
being informed of the threat to Plaintiff’s safety, reported the threat to the sergeant on duty,
Defendant Deleon. (Compl. ¶ 6.) As alleged, Defendant Cordovano took reasonable action to
ensure Plaintiff’s safety, even if the harm was not ultimately averted. See Farmer, 511 U.S. at 832.

Defendant Deleon, similarly, was informed by Defendant Cordovano of the threat to Plaintiff’s
safety, and informed Plaintiff that since his tour as sergeant was over, and Plaintiff would instead
have to go to the next tour sergeant with his concerns. (Compl. ¶ 6.) Defendant Deleon’s conduct,
as alleged, was also a reasonable response to the perceived risk Plaintiff was facing, even if
Plaintiff did not ultimately avoid the assault. See Farmer, 511 U.S. at 832.
For these reasons the following Defendants are dismissed from all Eighth Amendment
failure to protect claims without prejudice: Defendant Burnett, Defendant Deleon, and Defendant
Cordovano.
C. Fourteenth Amendment Equal Protection Claim
In order to plausibly allege a Fourteenth Amendment equal protection claim, a plaintiff
must first show that “he was treated differently than others similarly situated as a result of
intentional or purposeful discrimination and that such treatment “was not reasonably related to any
legitimate penological interests.” Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005).
Here, Plaintiff offers no allegations whatsoever that he was treated disparately. (See
Compl.) Without any such factual averments, the Court cannot discern a viable Fourteenth

Amendment equal protection claim, and, consequently, the Court dismisses Plaintiff’s Fourteenth
Amendment equal protection claim without prejudice.
D. Negligence Claim
Plaintiff seeks to assert a negligence claim against Defendants; however, per New York
Correction Law § 24, “Section 24 shields employees of a state correctional facility from being
called upon to personally answer a state law claim for damages based on activities that fall within
the scope of the statute.” Heyliger v. Gebler, 496 F. Supp. 2d 250, 252 (W.D.N.Y. 2007).
Plaintiff’s negligence claim stems from activities arising out of “DOCS employee[s’] act
performed within the scope of [their] employment, [such claim] may be maintained only in the

New York Court of Claims as a claim against the State of New York.” (Id.) Therefore, the Court
dismisses with prejudice Plaintiff’s negligence claim.
E. Qualified Immunity
“The doctrine of qualified immunity protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In order to determine whether
or not qualified immunity applies, the court considers: “(1) whether the plaintiff has shown facts
making out violation of a constitutional right; (2) if so, whether that right was clearly established
at time of defendant’s alleged misconduct; (3) even if the right was clearly established, whether it
was objectively reasonable for the officer to believe the conduct at issue was lawful.” Gonzalez v.
City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013) (quoting Taravella v. Town of Wolcott, 599
F.3d 129, 133-34 (2d Cir. 2010)).
In this instance, the Court must decide whether Defendants are able to rely on a qualified
immunity defense against Plaintiff’s Eighth Amendment failure to protect claims against them. As

already acknowledged, Plaintiff has sufficiently pled an Eighth Amendment failure to protect claim
against Defendants Perry, Jane Doe #1, and Cicala, satisfying the first prong of the qualified
immunity analysis.
For the second consideration, at the time of the Defendants’ failure to protect Plaintiff,
Plaintiff had a clearly established constitutional right under the Eighth Amendment to be protected
from substantial risks of violence stemming from the conditions of their confinement. See Farmer,
511 U.S. at 847. Given there was ample precedent at the time of Defendants’ conduct, the Court
must conclude that Plaintiff’s Eighth Amendment rights were clearly established at the time
Defendants allegedly committed the referenced constitutional rights violations.

At the time of the assault, any correctional officer would have reasonably known that
allowing a prisoner to be attacked, when they were informed that a specific attack was imminent,
would be unlawful. A prison environment that allows violence to go unpunished constitutes as a
“condition of confinement that objectively poses an unreasonable risk of serious harm to [the
prisoner’s] current or future health” and would additionally constitute as an environment which
shows deliberate indifference to inmate safety. Vega v. Semple, 963 F.3d 259, 273 (2d Cir. 2020).
This is further supported by case law, which holds that an Eighth Amendment failure to protect
against inmate violence under similar circumstances constitutes an exception to qualified
immunity. Lefler v. Ferraro, No. 22-CV-6468-FPG, 2025 WL 489331 (W.D.N.Y. Feb. 13, 2025)
(finding that defendants were not eligible for qualified immunity after being warned about an
impending assault on an inmate and allegedly failing to protect him). Therefore, the Court finds
that Defendants Perry, Jane Doe #1, and Cicala in their individual capacities are not entitled to a
qualified immunity defense against Plaintiff’s Eighth Amendment claims.
F. Eleventh Amendment Official Capacity
The Eleventh Amendment provides that states have immunity from litigation in federal

court by citizens of other states or foreign entities. This immunity extends to state actors when
damages against a state official are sought in their official capacity. Will v. Mich. Dep't of State
Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989) ("[A] suit against a state official
in his or her official capacity is not a suit against an official but rather is a suit against the official's
office."). Therefore, state governments cannot be sued in federal court; to revoke Eleventh
Amendment immunity for a state actor, the state must waive its own Eleventh Amendment
immunity. Jenkins v. Officer S (Downstate), No. 19-CV-10728 (KMK), 2021 WL 4392611
(S.D.N.Y. Sept. 24, 2021).
Accordingly, since there has been no waiver of state immunity in this case, the individuals

involved cannot be sued for monetary damages in their official capacities. In addition, under §
1983, a plaintiff may not seek monetary relief from officials in their official capacities. Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 109 S. Ct. 2304. Since seeking monetary damages from
state officials in their official capacities is barred under the Eleventh Amendment, Plaintiff’s claims
against Defendants in their official capacities are dismissed with prejudice.
G. Valentin Order
By Order dated January 19, 2024, the Court directed the New York State Attorney
General’s Office (“NYSAG”), as counsel for and agent of the New York State Department of
Corrections and Community Supervision (“NYS DOCCS”), to ascertain the identity and badge
number of each John Doe whom Plaintiff seeks to sue. (ECF No. 6.) In response, the NYSAG
identified Chris Churns as “John Doe #1,” and either Mario Malvarosa, the Facility Health
Services Director (“FHSD”), and/or Latasha Jackson-Smith, the Deputy Superintendent of Health
Services (“DSHS”), as “John Doe #2,” the individual responsible for overseeing the medical unit.
(ECF No. 9.) The NYSAG, however, was unable to identify “Jane Doe #1,” reporting that “no
woman-identified officer was on duty in B-West on May 26, 2023,” the location of the alleged

incident. If Plaintiff wishes to pursue a claim against “Jane Doe #1,” he must provide additional
information to the NYSAG no later than November 17, 2025, to enable a further attempt at
identification. Accordingly, should Plaintiff file an amended pleading consistent with this Order,
he must substitute John Doe #1 and John Doe #2 with their proper names.
Lastly, NYSAG identified “Wolf” as Janice Wolf-Friedman in a letter dated March 29,
2025. (ECF No. 19.) However, Defendant Wolf has not yet been properly named in this action.
Plaintiff is therefore directed to file an amended pleading properly naming Janice Wolf-
Friedman as a defendant. Upon the filing of such an amended pleading, Defendant Wolf must be
re-served. The Court will issue a separate service order directing the U.S. Marshals to re-serve

Defendant Wolf once the amended pleading is filed.
CONCLUSION
For the foregoing reasons, the Court GRANTS in part and DENIES in part Defendants’
motion. That portion of the motion seeking to dismiss Plaintiff’s claims is GRANTED with
prejudice to the extent the each of the named Defendants are sued in their official capacity.
Plaintiff's Eight Amendment claim for deliberate indifference to medical needs as against
defendant Wolf is GRANTED without prejudice.! Plaintiff’s Eight Amendment claim for failure
to protect is GRANTED without prejudice as against Defendants Supt. Burnett, Deleon and
Cordovano and DENIED as against Defendants Perry, Jane Doe #1, and Cicala. Plaintiff’s
Fourteenth Amendment equal protection claim is GRANTED without prejudice. Thus, the only
remaining claims are Plaintiff’s Eighth Amendment failure to protect claims against Defendants
Perry, Jane Doe #1 and Cicala.
Pro se Plaintiff is granted leave to file an Amended Complaint. Pro se Plaintiff will have
until November 17, 2025, to do so, consistent with this order. Pro se Plaintiff is advised that the
Amended Complaint will replace, not supplement, the original Complaint, and so any claims he
wishes to pursue must be included in, or attached to, the Amended Complaint. If pro se Plaintiff
files an Amended Complaint, Defendants are directed to answer or otherwise respond to the
Amended Complaint by December 8, 2025.
If pro se Plaintiff fails to file an Amended Complaint within the time allowed, those claims
dismissed without prejudice by this order will be deemed dismissed with prejudice. Additionally,
if pro se Plaintiff fails to timely file an Amended Complaint, Defendants Perry, Jane Doe #1 and
Cicala are directed to file an answer the original Complaint by December 8, 2025.
The Clerk of Court is respectfully directed to terminate the motions at ECF No. 28 and to
mail a copy of this Opinion to the pro se Plaintiff at the address listed on ECF and to show proof
of service on the docket.
Dated: September 29, 2025 ne CBDEREDY
White Plains, New York SO gee

NELSON S, ROMAN
United States District Judge

' The Court notes that Defendant Wolf has yet to be ween service of process.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11222587. Public record. Not legal advice.