Barrett v Manhattan Detention Complex

2024 NY Slip Op 31074(U)

March 29, 2024

Supreme Court, New York County

Docket Number: Index No. 158949/2018

Judge: Nicholas W. Moyne

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
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SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

PRESENT: HON. NICHOLAS W. MOYNE 

Justice 

X 

MONTE BARRETT, 

Plaintiff, 

-vMANHATTAN DETENTION COMPLEX, THE CITY OF NEW 

YORK, THE NEW YORK CITY DEPARTMENT OF 

CORRECTIONS, JOHN DOE NO. 1, OHN DOE NOS. 2-10 

Defendant. 

------------X 

PART 

INDEX NO, 15894912018 

MOTION DATE 08/18/2023 

MOTION SEQ. NO. 005 

DECISION + ORDER ON 

MOTION 

52 

The following e-filed documents, listed by NYSCEF document number (Motion 005) 139, 140, 141, 142, 

144,145,146,147, 148,149,150,151,152,153,154,155,156,157, 158,159,160,161,162,163,164, 

165 

were read on this motion to/for AMEND CAPTION/PLEADINGS 

Upon the foregoing documents, it is 

Plaintiff, Monte Barrett commenced this action seeking to recover for personal injuries 

allegedly sustained on July 29, 2017, when his right hand was crushed in an electronic sliding 

door while he was incarcerated at Manhattan Detention Complex. Plaintiff moves for an order, 

pursuant to CPLR § 3025, granting him leave to amend the complaint to add and/or reinstate his 

Second Cause of Action: a claim of municipal liability arising out of an alleged violation of his 

Eighth Amendment rights. 

Defendants, Manhattan Detention Complex, The City ofNew York, and The New York 

City Department of Corrections ( collectively "City defendants"), oppose the motion to amend 

and/or reinstate and cross-move for an order, pursuant to CPLR § 3211 (a)(7), dismissing the 

plaintiffs Federal Cause of Action for the failure to state a claim. Alternatively, the City seeks 

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Mntlnn Nn nn5 

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an order bifurcating the Monell claim for discovery and trial and staying discovery and trial on 

the Monell claim until after the conclusion of plaintiff's remaining claims. 

Relevant Procedural History: 

In Motion Sequence 003, the City defendants moved to dismiss and the plaintiff crossmoved for leave to amend the complaint. In the decision and order, plaintiff's Second, Third, and 

Fourth Causes of Action were dismissed, and the cross-motion was denied. However, despite this 

denial the decision also permitted the plaintiff to move for leave to amend his complaint to 

attempt to comply with pleading requirements for Monell claims against the City (see NYSCEF 

Doc. No. 85). The plaintiff's Second Cause of Action, the Federal Cause of Action for Monell 

liability based on a purported violation of his Eighth Amendment rights and deliberate 

indifference to his medical needs, was dismissed because the complaint failed to adequately ' . . . 

allege a policy or custom as required to sustain a Monell claim. 

ln Motion Sequence 004, plaintiff moved for a default judgment for the City defendants' 

failure to timely answer his proposed amended complaint and the City defendants cross-moved 

to compel acceptance of an answer and to dismiss claims in the proposed amended complaint. In 

the decision and order, plaintiff's motion was denied as this amended complaint was 

procedurally improper and the City defendants' cross-motion was denied as moot. Plaintiff was 

afforded an additional subsequent opportunity to seek leave to amend the complaint, pursuant to 

a motion made in compliance with CPLR § 3025 (see NYSCEF Doc. No. 136). 

CPLR§ 3025: 

On a CPLR § 3025 motion, applications fo amend pleadings are within the sound 

discretion of the trial court, with the consideration that leave shall be freely given upon such 

terms as may be just (Kimso Apartments, LLC v Gandhi, 24 NY3d 403,411 [2014]). Motions for 

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Motion No. 005 

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leave shall be freely granted, absent prejudice or surprise resulting therefrom, unless the 

proposed amendment is palpably insufficient or patently devoid of merit (MBIA Ins. Corp. v 

Greystone & Co., Inc., 74 AD3d 499,499 [1st Dept 2010]). A movant need not establish the 

merit of the proposed new allegations, however in order to conserve judicial resources, 

examination of the underlying rnerit of the proposed amendments is mandated (Thompson v 

Cooper, 24 AD3d 203,205 [1st Dept 2005]). Accordingly, leave will be denied where the 

proposed amendment, as pleaded, fails to state a cause of action, or is palpably insufficient as a 

matter oflaw (Id.). 

CPLR§ 3211 {a){7): 

On a CPLR § 3211 (a)(7) motion to dismiss, the defendants bear the burden of 

establishing that the complaint fails to state a viable cause of action ( Connolly v Long Is. Power 

Auth., 30 NY3d 719, 728 [2018]). The question is whether the complaint '.1dequately alleged facts 

giving rise to a cause of action, not whether it properly labeled or artfully stated one (Sassi v 

' 

Mobile Life Support Services, Inc., 37 NY3d 236,239 [2021]}. On a motion to dismiss claims for 

the failure to state a cause of action which include claims arising under 42 U.S.C. 1983, New ; 

York Courts apply the standard under CPLR § 3211 (a)(7) rather than federal pleading standards 

(Vargas v City of New York, 105 AD3d 834,837 [2d Dept 2013]; see generally (Jorge v City of 

New York, 220 AD3d 593, 593 [1st Dept 2023]). 

Eighth Amendment & Municipal Liability:. 

Eighth Amendment: 

The Eighth Amendment guarantees freedom from cruel and unusual punishment and 

imposes a duty on prison officials to ensure that inmates receive adequate medical care (Jones v 

Westchester County Dept. of Corrections Med. Dept.; 557 F Supp 2d 408,413 [SONY 2008]). A 

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violation of the Eighth Amendment can be proven only if an inmate can demonstrate that prison 

officials have acted with deliberate indifference to his or her serious medical needs (Matter of 

Wooley v New York State Dept. a/Correctional Services, 15 NY3d 275,282 [2010); relying on 

Estelle v Gamble, 429 US 97, 105, 97 S Ct 285,291, 50 L Ed 2d 251 [1976]). In the proposed 

amended complaint, plaintiff alleges that the City defendants "violated plaintiffs Eighth 

Amendment Right of the United States Constitution when they engaged in a deliberate 

indifference to serious medical needs of prisoners, specifically, the plaintiff therein" (proposed 

amended complaint ,r 47). Plaintiff alleges that for days and/or weeks following his injury on 

July 29, 2017, the City defendants continued to deny, and never provided, plaintiff adequate, 

prompt, or proper medical care (Id. ,r 48). Plaintiff alleges that the City defendants demonstrated 

a deliberate indifference to his medical needs by failing to provide medical care that would 

prevent permanent and/or debilitating injuries and alleges that due to the City defendants 

intentionally and/or negligently withholding medical care, delaying and/or denying proper and 

necessary treatment, and/or knowingly interfering with plaintiffs medical treatment, exacerbated 

his injury (Id ,r ,r 49, 50). However, it is well-settled that a municipal defendant is subject to 

statutory liability for deliberate indifference to medical needs under 42 U.S.C. 1983 only where 

an injury results from the execution of ar) unconstitutional policy or practice (Small v St, 

Barnabas Hosp., 165 AD3d 576,576 [1st Dept 2018]). 

Monell Liability: 

Therefore, in seeking to reinstate the claim, plaintiff contends that the proposed amended 

complaint now sets forth the necessary elements of a Monell claim by demonstrating an official 

policy or practice when it comes to administering medical care to inmates in the City defendants' 

care, 42 U.S.C. 1983 is the statutory vehicle by which a plaintiff may bring a civil claim based 

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Motion No. 005 

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on an alleged violation or deprivation of the rights, privileges, and immunities guaranteed by the 

United States Constitution and/or federal Jaw (see 42 USC 1983). The Supreme Court ~fthe 

United States held that a local government or municipality may be held liable under 1983 for the 

deprivation of Constitutional rights caused as a result of an official policy or custom (MoneU v 

Dept. of Social Services of City of New York, 436 US 658,690 [1978]). Under 1983, a· 

municipality cannot be held liable for the acts of its employees on a theory of respondeat 

superior, rather the plaintiff must demonstrate that, through its deliberate conduct, the 

municipality was the moving force behind the alleged injury (Lucente v County of Suffolk, 980 

F3d 284,297 [2d Cir 2020]; Monell v Dept. of Social Services of City of New York, 436 US 6.58, 

690 [1978]). Accordingly, to hold a city liable under 1983 for the unconstitutional actions of its 

employees, a plaintiff.is required to plead and prove three elements: (I) an official policy_ or 

' 

custom (2) that causes the plaintiff to be subjected to (3) a denial of a constitutional right (Wray v 

City of New York, 490 F3d 189, 195 [2d Cir 2007]). 

A plaintiff seeking to impose liability on a municipality must prove that action pursuant 

to official municipal policy caused their injury (Connick v Thompson, 563 US 51, 60, 131 S Ct 

1350, 1359, 179 L Ed 2d 417 [2011]). The mere invocation of the pattern or plan will not suffice 

without a causal link and absent a showing of a causal link between an official policy or custom 

and the plaintiffs injury,a finding ofHability against the City is prohibited (Batista v Rodriguez, 

702 F2d 393, 397 [2d Cir I 983]). The injury alleged must consist of a constitutional violation 

(Tirado v City of New York, 19CV10377LAKSN, 2021 WL 11646299, at *8 [SDNY Jan. 25, 

2021]; see also City of Los Angeles v Heller, 475 US 796, 799, 106 S Ct 1571, 1573, 89 L Ed 2d 

806 [1986]). 

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A plaintiff may show the existence ofa policy or custom by any of the following; (I} an 

express policy or custom; (2) an authorization of a policymaker of the unconstitutional practice; 

(3) failure of the municipality to train or supervise its employees, which exhibits a deliberate 

indifference to the rights of its citizens; or ( 4) a practice of the municipal employees that is so 

permanent and well settled so as to imply the constructive acquiescence of senior policymaking 

officials (Swinson v City of New York, 19 CV. 11919 [KPF], 2022 WL 142407, at *5 [SDNY 

Jan. 14, 2022], relying on Corley v Vance, 365 F Supp 3d 407,'438 [SDNY 2019], affd sub nom. 

Corley v Wittner, 811 Fed Appx 62 [2d Cir 2020][summary order]). Whichever theory plaintiff 

offers, boilerplate assertions of a municipal policy are insufficient to state a claim for Monell 

liability, facts supporting the policy's existence must be pied (Felix v City of New York, 344 F 

Supp 3d 644,653 [SDNY 2018]). 

In an attempt to make out a claim of a custom, policy, or practice with respect to the City 

defendants alleged provision of inadequate medical care, the proposed amended complaint 

includes a portion of excerpts of complaints received in response to a Freedom oflnformation 

Law (FOIL) request, a news article about the experiences of Dr. Homer Venters, and two articles 

discussing the unfortunate deaths of two inmates. Plaintiff contends that the factual allegations 

and exhibits in the proposed amended complaint are sufficient to plead that the City defendants 

had an official policy that (I) was established by the actions or decisions of a policymaker; (2) 

pervasive or widespread so as to constitute a custom or usage; and (3) demonstrates the failure of 

the municipality to train or supervise its employees, constituting deliberate indifference. The 

Court disagrees. 

158949/2018 BARRETT, MONTE vs. MANHATTAN DETENTION COMPLEX . 

Motion No. 005 

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Policymaking Official: 

Plaintiff has failed to adequately plead a claim of liability based on an official policy or 

custom estabiished by the actions or decisions of a municipal official. Even a single action by a . 

deeisionmaker 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 F3d 386, 403 (2d Cir 20181). When a non-decisionmaker committed the 

violation, a plaintiff must allege facts suggesting that an officer with final policymaking 

authority ordered; ratified, or was aware of a subordinate's unconstitutional actions and 

consciously chose to ignore them, effectively ratifying the actions (Hu v City of New York, 927 

F3d 81, I 05 [2d Cir 20191). The plaintiff must show that the official has final policymaking 

power and that the challenged actions are within that official's area of policymaking authority 

(Roe v City of Waterbury, 542 F3d 31, 37 [2d Cir 2008)). 

The proposed amended complaint includes an allegation that the City defendants, "by 

their policy-making agents, servants and employees, authorized sanctioned and/or ratified the 

individual defendant's wrongful acts" (proposed amended complaint ,r 54). However, the 

plaintiff fails to name or identify any individuals and/or officials in the proposed amended 

complaint let alone those with final policy or decision-making authority with respect to how, 

when, and to whom medical services were to be administered at the corrections facility (see 

Bektic-Marrero v Goldberg, 850 F Supp 2d 418,430 {SDNY 2012]; Clarke v Antonini, 21 CIV. 

1877 (NSR], 2022 WL 4387357, at *7 [SDNY Sept. 22, 2022); see also Schwab v Smalls, 435 

Fed Appx 3 7, 40 [2d Cir 20 I I)). Accordingly, plaintiff also fails to plead any factual allegations 

which would plausibly suggest that any policymaking official was involved with, informed of, or 

otherwise made aware of the conduct which comprises his claim. 

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Motion No. 005 

Pago 7 ol 19 

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Further, the article cited in the proposed amended complaint, entitled "Do Jails Kill 

People" and written about the fonner Chief Medical Officer for the New. York City Correctional 

Health Services Dr. Homer Venters, is insufficient to allege that the City defendants had a policy 

that was established by a policymaking official. Plaintiff contends that this article, from a person 

of power and authority, confirms the City defendants' alleged policy or practice of administering 

inadequate care which "came from the top down starting all the way at the Mayor's office" 

( affirmation of plaintiff's counsel in opposition to cross mot 'I; 3 3 ). However, none of the factual 

allegations in the proposed amended complaint demonstrate that Dr. Venter was an official with 

final policymaking power, reference the extent of his authority, or mention whether he exercised 

this authority to deprive inmates of medical care (Clarke v Antonini, 21 CIV. 1877 [NSR], 2022 

WL 4387357, at •7 [SDNY Sept. 22, 2022]; see also Zherka v City of New York, N. Y, 08 CV 

9005 LAP, 2010 WL 4537072, at *4 [SDNY Nov. 9, 201 OJ, ajfd sub nom. Zherka v City of New 

York, 459 Fed Appx 10 [2d Cir 2012]). Nor does the article includes allegations suggesting that 

other municipal officials, with final policymaking power regarding the provision of medical care 

to incarcerated individuals, had notice of any unconstitutional conduct or ordered, ratified, or 

consciously ignored the alleged practice of denying medical care. (see Roe v City of Waterbury, 

542 F3d 31, 37 [2d Cir 2008)). Finally, contrary to plaintiff's claim, the article does not state that 

the Mayors' office, either through action or inaction, established an official policy to provide 

inadequate care to inmates. Rather the article speculatively relays that Dr. Venters blamed City 

Hall and former mayors for the condition and culture of brutality v.'ithin Rikers (see Sifonte v 

City of New York, 194 AD3d 435,436 [1st Dept 2021]). Therefore, the proposed amended 

· complaint fails to raise a plausible inference that plaintiff's alleged constitutional injury was 

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caused by a City official with final policymaking authority (see Hu v City of New York, 927 F3d 

81, 105 [2d Cir 2019]). 

Widespread Practice or Policy: 

Plaintiff has also failed to adequately plead the existence of a policy or practice that is so 

persistent and widespread it constitutes a custom through which constructive notice may have 

been imposed. An official policy requirement may be met by alleging a practice so persistent and 

widespread, or permanent and well settled, as to constitute a custom or usage with the force of 

law and to imply the constructive knowledge of policymaking officials (Felix v City of New 

York, 344 F Supp 3d 644, 653 [SONY 2018], citing Sorlucco v New York City Police Dept., 97 l 

F2d 864, 870 [2d Cir 1992]). Such a policy may be pronounced or tacit and reflected in either 

action or inaction (Lucente v County ofSl!ffolk, 980 F3d 284, 297 (2d Cir 2020]). A practice is 

widespread when it is common or prevalent throughout the entity and under this category, a 

policymaker indirectly causes the misconduct of a subordinate by acquiescing in a longstanding 

prn.ctice or custom which may be fairly said to represent official policy (Buari v City of New 

York, 530 F Supp 3d 356,398 (SONY 2021]). Therefore, to demonstrate a de facto policy or 

custom, a plaintiff must show that a policymaker was aware ofa subordinate's unconstitutional 

actions, and consciously chose to ignore them, effectively ratifying the actions (Id.). 

The proposed amended complaint includes an allegation that the City defendants have 

engaged in a widespread practice or policy of failing to provide adequate and/or aeceptable 

medical care to inmates in their custody and control (proposed amended complaint ,i 58). In an 

· attempt to allege the existence of a persistent or widespread practice, plaintiff alleges that the 

City defendants have been the subject of numerous complaints, grievances, lawsuits, and/or 

investigations with respect to the provision of medical treatment or care (see proposed amended 

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complaint ,r ,r 58, 6 I). In support of this allegation, plaintiff cites to excerpts of complaints and/or 

grievances which were received in resp~nse to a FOIL request, the aforementioned news article 

about Dr. Homer Venter, and includes two news articles discussing the settlements reached in 

lawsuits over the deaths of two inmates at Rikers Island. These supporting exhibits, whether 

reviewed separately or in conjunction, fail to enable the plaintiff to adequately allege a claim. 

In the proposed amended.complaint, plaintiff offers excerpts of complaints that were 

made to 311 which he received through FOIL from "just a limited time prior to and including the 

time period of the subject incident," regarding the medical care of inmates (proposed amended 

complaint ,r 61 ). Plaintiff alleges that these complaints demonstrate a longstanding policy or 

custom to ignore or disregard the medical complaints of inmates and deprive them of reasonable 

medical care (proposed amended complaint ,r ,r 60, 61 ). However, contemporaneous or 

subsequent conduct cannot establish a pattern of violations that would provide notice to the City 

and the opportunity to confirm to constitutional dictates (Douglas v City of Peekskill, 2 l-CV10644 [KMK], 2023 WL 2632217, at *8 [SONY Mar. 24, 2023]; Badia v City of New York, 214 

AD3d 551,553 [1st Dept 2023]; quoting Connickv Thompson, 563 US 51, 63,131 S Ct 1350, 

1360, 179 L Ed 2d 417 [2011 ]). These complaints, which plaintiff himself describes as being 

from a limited time before and during the time of plaintiffs incident, do not support an inference 

of a well-settled or longstanding practice of which officials could have had notice. 

Notwithstanding, these 311. complaints are also insufficient to plead the existence of a 

pattern or practice of providing inadequate medical care that is consistent and widespread across 

the entity. Of the complaints and/or grievances provided, many contain allegations speaking to 

possible violations or misconduct which is not at issue in the plaintiffs case; including, 

complaints about facility conditions, requests for different materials/furnishings, and requests for 

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certain documentation or transfers (see Roman v City of Mount Vernon, 21-CV-2214 [KMK], 

2022 WL 2819459, at *21 [SDNY July 19, 2022]). Further, these 311 complaints were made by 

both.various parties including inmates, family, and representatives, using various means and/or 

methods, and most of which do not contain an indication.that they were reviewed, and/or 

whether they were investigated or substantiated (see Id.). Further, these complaints do not 

support an inference of a common or prevalent practice throughout the entity considering that the 

overwhelming majority are about/from Rikers Island, with very few coming from other facilities. 

In addition, only a small number of these grievances contain allegations which attribute any 

conduct to a specific or named employee within a facility and of these allegations, none 

implicate the same conduct or employees. Finally, both the proposed amended complaint and 

these 311 complaints fail to include factual allegations that any relevant official or supervisor 

was aware of the complaints or the allegations of conduct within, yet consciously chose to ignore 

them (Douglas v City of Peekskill, 21-CV-10644 [KMK], 2023 WL 2632217, at *8 [SDNY Mar. 

24, 2023)). Therefore, these complaints are insufficient to demonstrate a widespread practice or 

pattern of similar viol_ations to constitute an official policy or custom. 

Next, the "Do Jails Kill People" article is also insufficient to demonstrate the City 

defendants had a persistent or widespread practice of providing inadequate medical care to 

inmates. The article is based on Dr. Homer Venters' book, "Life and Death in Rikers Island", 

about his personal observations while employed at Riker's Island. As previously mentioned, this 

is a different facility than the one where plaintiff was incarcerated, and the article makes no 

references to any other DOC facilities. As the articles are based on this one facility, it is 

insufficient to plead a common or prevalent practice throughout the entity. As both the article 

and the book on which it is based were published in 2019, post-dating the plaintiff's claim, 

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neither can be said to have provided notice to the City defendants of any of the unconstitutional 

. " 

conduct which may have been alleged within (see Felix v City of New York, 344 F Supp 3d 644, 

658 fSDNY 2018] [a plaintiff may not rely on a later-published report.when there does not 

appear to be any indication that officials had earlier notice of their contents]). Finally, the book is 

centered on Venters' experiences from the years of2008 to 2017 and the article mentions 

allegations or incidents which are sparsely accompanied by a date or year. Of the incidents 

acc-0mpanied by a year, they are temporally distant and· involve misconduct that is not similar to 

that which comprises the plaintiffs alleged constitutional injury. The article or book also 

contains more general allegations suggesting customs or practices which are not accompanied by 

a date. However, without factual allegations in either the proposed amended complaint and/or the 

article to plausibly suggest that these customs or usages were still the same at the time of 

plaintiffs claim, these allegations are insufficient (see Yousefv County of Westchester, 19~CV1737 [CS], 2020 WL 2037177, at *12 [SDNY Apr. 28, 2020]). Accordingly, the article fails to 

support an inference of a persistent and widespread pattern or practice. 

A plaintiff may allege a persistent or widespread practice by pleading that "the local r 

government, 'faced v.ith a pattern of misconduct and does nothing,' has 'compelled the 

condusiort that the local government has acquiesced in or tacitly authorized its subordinates' 

unlawful actions"' (Tirado v City of New York, !9CV10377LAKSN, 2021 WL ll646299, at *IO 

[SDNY Jan. 25, 2021], quoting Reynolds v Giuliani, 506 F3d 183, 192 [2d Cir 2007]). There 

must be sufficient instances of tolerant awareness by supervisors of the conduct to support an 

inference that they had a policy, custom, or usage of acquiescence in ~uch conduct (Lucente v 

County of Suffolk, 980 F3d 284,297 (2d Cir 2020]). A plaintiff may also bolster their claim by 

providing evidence that the municipality had notice of but repeatedly failed to make any 

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meaningful investigation into allegations of constitutional violations, such as by citing to similar 

incidents from other lawsuits or settlements (Tirado v City of New York, 19CV10377LAKSN, 

2021 WL 11646299, at* 10 [SONY Jan. 25, 2021]., accord Lucente v County of Suffolk, 980 F3d 

284,297 [2d Cir 2020]). A plaintiff may plead_the existence of a de facto policy by citing to 

complaints in other cases that contain similar allegations (Buari v City of New York, 530 F Supp 

3d 356,399 (SONY 2021)). Such complaints must involve factually similar misconduct, be 

contemporaneous to the misconduct at issue in the plaintiff's case, and result in an adjudication 

of liability (Id.). 

Accordingly, the two news articles involving lawsuits over the deaths of two inmates at 

Rikers Island which are ·referenced in the proposed amended complaint are insuflicient to allege 

a de facto custom or policy. Neither of the two v.Tongful death lawsuits highlighted by these 

articles resulted in adjudication on liability but rather both cases ended in settlement without an 

admission or finding of liability. The two articles also involve misconduct that is temporally 

distant, with the cases arising out of events which occurred in 2013 and 2002, respectfully. 1 

Further, these articles discuss lawsuits which are factually .distinguishable from the plaintiff's 

claim and do not include_ comparab_le misconduct or actors as those alleged in the proposed 

amended complaint (see Clarke v Antonini, 21 CIV. 1877 [NSRJ, 2022 WL 4387357, at *8 

[SONY Sept. 22, 2022]). Therefore, these news articles are insufficient to plead the existence of 

a de facto custom or usage of which the City defendants had notice. 

Failure to Train or Supervise: 

1 Notwithstanding, these articles are insufficient to establish a persistent or longstanding practice as one of these 

articles discusses that after the Investigation Department released its findings on the then-prison healthcare 

company in 2015, it was announced the City was letting its contract with that provider.lapse and the City agency 

NYC Health & Hospitals would b_e taking over the provision of medical care in jails (see NY5CEF Doc. No. 90). 

Accordingly, these articles do not suggest an inference of tolerant awareness or acquiescence by the City 

defendants (see Outlaw v City of Hartford, 884 F3d 351, 380 [2d Cir 2018)). 

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Finally, the proposed amended complaint fails to set forth a claim of Monell liability 

under theories of the City defendants' failure to train or failure to supervise its subordinates, such 

that it amounted to deliberate indifference. The official policy requirement may be met by 

identifying a failure to train or supervise subordinates in a relevant respect, amounting to a 

deliberate indifference to the rights of those whom the municipality's employees come into 

contact (Felix v City of New York, 344 F Supp 3d 64{ 653 [SONY 2018]). Therefore,.municipal 

liability may be based on a municipality's inaction, if 'the need to act is so obvious, and the 

inadequacy of current practices so likely to result in the deprivation of federal rights, that the 

municipality ... can be found deliberately indifferent to the need"' (Pettiford v City of Yonkers, 

14 CIV. 6271 [JCM], 2021 _WL 2556172, at *6 [SONY June 21, 2021] quoting Reynolds v 

Giuliani, 506 F3d l 83, 192 [2d Cir 2007)). However, a 1983 claim against a municipality is at its 

weakest where it turns on an alleged failure to train or supervise (Greene v City of New York, 742 

Fed Appx 532, 536 [2d Cir 2018] quoting Connick v Thompson, 563 US 51, 61, 131 S Ct 1350, 

1360, 179 L Ed 2d 417 (2011 ]). Claims of municipal liability for the failure to train or failure to 

supervise are analyzed separately (Buari v City of New York, 530 f Supp 3d 356,399 [SDNY 

2021]) .. 

Failure (o Train: 

To state a claim for liability based on a failure to train, a plaintiff must allege that a 

municipality's failure to train its employees in a relevant respect amounted to a deliberate 

indifference to the rights of persons with whom the untrained employees come into contact 

(Hernandez v United States, 939 F3d 191,207 [2d Cir 2019]). _Deliberate indifference is a 

stringent standard of fault, and for liability to attach in this circumstance, the identified 

deficiency in a city's training program must be closely related to the ultimate injury (Hernandez 

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v United States, 939 F3d 191,207 [2d Cir 2019J). The proposed amended complaint does not set 

forth factual allegations that the City defendants failed to train suhordinates or that suggest an 

obvious need for more or different training. Further, the proposed amended complaint does not 

identify a training program, poliey, or procedure, or otherwise allege a specific deficiency within· 

said training. Nor do the additional sources cited by the proposed amended complaint include 

allegations regarding the need for better training, identify deficiencies in the City defendants' 

training of its ·subordinates, or otherwise implicate a failure to train in some respect (Felix v City 

of New York, 344 F Supp 3d 644, 660 [SDNY 2018]). Considering, plaintiff has failed to plead a · 

claim based on a failure to train. 

Failure to Supervise: 

As with a failure to train, under a failure to supervise theory, a plaintiff must plausibly 

allege that the City's policymakers were knowingly and deliberately indifferent to the possibility . 

that its' employees were likely to commit constitutional violations (Tirado v City of New York, 

19CV10377LAKSN, 2021 WL ll646299, at *12 [SONY Jan. 25, 2021]; relying on Amnesty 

Am. v Town o/W. Hartford, 361 F3d 113, 127 [2d Cir 2004]). In the proposed amended 

complaint, plaintiff alleges that all acts and omissions were carried out pursuant to overlapping 

policies and practices of the City defendants, which were in existence at the time of the conduct 

alleged and were engaged in with the full knowledge, consent and cooperation and under the 

supervisory authority of the City defendants (proposed amended complaint ,i 53). Additionally, ' . 

plaintiff alleges that the City defendants, by their policy-making agents, servants and employees, 

authorized, sanctioned, and/or ratified the individual defendants' acts as. alleged, and/or failed to 

prevent or stop those acts and/or allowed those acts to continue (proposed amended complaint ,i 

54). However, these allegations are insufficient. 

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To establish a custom or policy through a municipality's deliberate indifference to a 

failure to supervise, the plaintiff must show that the need for more or better supervision to 

protect against constitutional violations was obvious (see Vasquez v City of New York, 20-CV4641 [ER], 2023 WL 8551715, at *6 [SONY Dec. 11, 2023); relying on Vann v City of New 

York, 72 F3d I 040, I 049 [2d Cir 19951). A plaintiff may plead a failure to supervise by showing 

( 1) a pattern of allegations of or complaints about, or a pattern of actual, similar unconstitutional 

activity, and (2) the municipality consistently failed to investigate those allegations, 

demonstrating deliberate indifference (Atadzhanov v City of New York, 21-CV-5098 [LJLJ, 2022 

WL 4331304, at * 11 [SONY Sept. 19, 2022]). There is no requirement that complaints result in a 

formal finding of misconduct for such complaints to support findings of failure to supervise 

(Buari v City of New York, 530 F Supp 3d 356,400 [SDNY 2021]). However, the deliberate 

indifference standard is stringent and requires proof that a municipal actor disregarded a known 

or ob.vious consequence (Yousef v County of Westchester, I 9-CV-1737 [CS), 2020 WL 2037177, 

at * 11 [SONY Apr. 28, 2020]). A plaintiff must plead sufficient facts to make it plausible that 

the municipality was on notice of similar misconduct (Mancuso v Vil. of Pelham, J S-CV-7895 

[KMK], 2016 WL 5660273, at *10 [SONY Sept. 29, 2016]). 

Therefore, for the same reasons that plaintiff failed to plead a claim of a persistent and 

widespread practice, plaintiff has also failed to plead a claim for the failure to supervise based on 

an obvious need for better supervision. Plaintiff has failed to include factual allegations which. 

allege a pattern of similar violations or misconduct, nor include allegations which would suggest 

the City defendants' notice. 

Further, even if the allegations in the proposed aniended complaint were sufficient to 

allege a pattern or practice, the plaintiff has failed to adequately allege the City defendants' 

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deliberate indifference to such. An allegation ofnwnerous claims of the underlying 

constitutional wrong by itself is insufficient to raise an inference of deliberate indifference due to 

- a failure to supervise (Taranto v Putnam County, 21-CV-2455 [KMK], 2023 WL 6318280, at 

*20 [SDNY Sept. 28, 2023]). Rather, the plaintiff must allege that meaningful attempts to 

investigate repeated claims are absent (Id.). A 1983 claim for deliberate indifference by a 

municipality is not sustainable where its failure is attributable to mere negligence rather than to 

conscious choice (Outlaw v City of Hartford, 884 F3d 351,379 [2d Cir 2018]). 

The proposed amended complaint alleges that the City defendants have engaged in 

repeated practices exhibiting deliberate indifference to the constitutional rights of individuals 

similarly situated and demonstrated their deliberate indifference to medical complaints not only 

of the plaintiff, but of countless inmates before him (proposed amended complaint ,i ,r 58, 60). 

Additionally, plaintiff alleges that the City defendants, by their policy0making agents, servants 

and employees, authorized, sanctioned, and/or ratified the individual defendants' acts as alleged, 

and/or failed to prevent or stop those acts and/or allowed those acts to continue (proposed 

amended complaint ,i 54). However, these conclusory assertions are insufficient to plead 

deliberate indifference without additional factual allegations suggesting a consistent failure to 

investigate or forestall incidents. 

The. proposed amended complaint fails to allege that despite notice of other similar 

complaints, there was a consistent failure to or lack of any meaningful attempt to investigate. 

Nor do the additional sources included in the proposed amended complaint plead the City 

defendants' deliberate indifference to the provision of inadequate medical care. In fact, within 

the 311 complaints provided by the plaintiff and of the ones involving the need or requests for 

medical care, there are responses and/or indication that those matters were forwarded for review. 

158949/2018 BARRETT, MONTE vs. MANHATTAN DETENTION COMPLEX 

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and/or were being investigated by staff at the facilities (see NYSCEF Doc. No. 88 at 222-223; 

224-232; 233-236; 241-243; 250). These responses indicate that the complaint matter was either 

addressed, resolved, and/or the complaint was found to be unsubstantiated (Id.). Considering, the 

plaintiff has failed to adequately allege a failure to supervise claim based on the City defendants' 

deliberate indifference. 

Causation: 

Finally, supposing the plaintiff plausibly allege~ an official policy or custom, his claim 

against the City defendants would nevertheless fail as he has not alleged a constitutional 

violation that was caused by said custom or policy. Plaintiff merely alleges that the City 

defendants "clearly have established an official policy or custom which causes plaintiffs and 

others similarly situated to him, to be subjected to a denial of a constitutional right" (proposed· 

amended complaint at 60). But municipalities may only be held liable when the municipality 

itself deprives an individual of a constitutional right (Dume! v Westchester County, 19-CV-2161 

[KMK], 2021 WL 738365, at •4 [SDNY Feb. 25, 2021)). Therefore, a plaintiff must show a 

direct or affirmative causal link between a municipal policy or custom and the alleged 

constitutional deprivation (Outlaw v City of Hartford, 884 F3d 35 l, 373 [2d Cir 2018]; see also 

Dumel.v Westchester County, 19-CV-2161 [KMK], 2021 WL 738365, at *4 [SDNY Feb. 25, 

2021 ]). Liability requires that the alleged unconstitutional policy was the "moving force" behind 

plaintiffs' injury- a showing that amounts to proximate cause (Felix v City of New York, 344 F 

Supp 3d 644, 654 [SDNY 2018]). Plaintiff has not included factual allegations to plausibly 

connect his asserted injury to the alleged policy or custom, or which would otherwise support an 

inference that the City defendants' policy or practices were the moving force behind his alleged 

constitutional injury, such that the City may be held responsible (see Lopez v City a/New York,. 

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I :19-CV-03887-MKV, 2021 WL 466974, al *7 [SDNY Feb. 9, 2021]). As the plaintiff has not 

adequately alleged a causal link between an official policy or custom and his alleged, his claim 

based on Monell liability fails (Batista v Rodriguez, 702 F2d 393, 397 [2d Cir 1983]). 

Conclusion: 

Accordingly, it is hereby 

ORDERED that the plaintiff's motion for leave to amend the complaint is denied; and it 

is further 

ORDERED that the cross-motion by the City defendants to dismiss the Second Cause of 

Action in the plaintiff's proposed amended complaint is GRANTED. 

This constitutes the decision and order of the court, 

3/2912024 

DATE 

CHECK ONE: 

NICHOLAS W. MOYNE, J.S.C. 

'APPLICATION; 

CHECK IF APPROPRIATE: ~ CASE DISPOSED . 

GRANTED □ DENIED 

SETTLE ORDER 

INCLUDES TRANS~ER/REASSIGN 

~QN.flNAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIOUCIARY APPOINTMENT 

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0 OTHER 

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