### 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.INDEX NO. 158949/2018 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 04/01/2024

1 of 19 

### SUPREME COURT OF THE STATE OF NEWYORK NEWYORK COUNTY PRESENT: HON. NICHOLAS W. MOYNE Justice X MONTE BARRETT, Plaintiff,-vMANHATTAN DETENTION COMPLEX, THE CITY OF NEW YORK, THE NEWYORK 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 Barrettcommenced this action seekingto recover for personal injuries allegedly sustained onJuly 29, 2017, when hisright hand was crushed in an electronic sliding door while he was incarcerated at Manhattan Detention Complex. Plaintiffmoves for an order, pursuant to CPLR § 3025, granting him leave to amend the complaint to add and/or reinstate his Second Cause ofAction: a claim ofmunicipal liability arising out ofan alleged violation ofhis Eighth Amendment rights. Defendants, Manhattan Detention Complex, The City ofNew York, and The New York City Department ofCorrections (collectively "City defendants"), oppose the motionto amend and/orreinstate and cross-move for an order, pursuant to CPLR § 3211 (a)(7), dismissing the plaintiffs Federal Cause ofAction for the failure to state a claim. Alternatively, the City seeks

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2 of 19 an order bifurcating theMonellclaim for discovery and trial and staying discovery and trial on theMonell claim until afterthe conclusion ofplaintiff's remaining claims. RelevantProcedural History: In Motion Sequence 003, the City defendants movedto dismiss and the plaintiffcrossmoved for leave to amend the complaint. In the decision and order, plaintiff's Second, Third, and Fourth Causes ofAction were dismissed, and the cross-motion was denied. However, despite this denial the decision also permitted theplaintiffto 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 ofAction, the Federal Cause ofAction for Monell liability based on a purported violation ofhis Eighth Amendmentrights and deliberate indifference to his medical needs, was dismissed becausethecomplaint failed to adequately ' . . . allege a policy or custom as required to sustain a Monell claim. lnMotion Sequence 004, plaintiffmoved for a defaultjudgment for the City defendants' failure to timely answer his proposed amended complaint and the City defendants cross-moved to compel acceptance ofan 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. Plaintiffwas afforded an additional subsequent opportunity to seek leave to amend the complaint, pursuant to
a motion made incompliance with CPLR §3025 (see NYSCEF Doc. No. 136). CPLR§ 3025: On a CPLR § 3025 motion, applications fo amend pleadings are within the sound discretion ofthe trial court, 

### with the consideration that leave shall be freely given upon such terms as may bejust(KimsoApartments, LLCv Gandhi, 24 NY3d 403,411 [2014]). Motions for

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3 of 19 leave shall be freely granted, absent prejudice or surprise resulting therefrom, unless the proposed amendment is palpably insufficient or patently devoid ofmerit (MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499,499 [1st Dept 2010]). A movant need not establishthe merit ofthe proposed new allegations, however in order to conservejudicial resources, examination ofthe underlying rnerit ofthe 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 ofaction, 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 ofaction (Connolly v LongIs. Power Auth., 30 NY3d 719, 728 [2018]). The question is whether the complaint '.1dequately alleged facts giving rise to a cause ofaction, not whether itproperly 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 ofaction 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:. EighthAmendment: The Eighth Amendment guarantees freedom from cruel and unusual punishment and imposes a duty onprison officials to ensure that inmates receive adequate medical care (Jones v Westchester County Dept. of Corrections Med. Dept.; 557 F Supp 2d408,413 [SONY 2008]). A

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4 of 19 violation ofthe EighthAmendment canbe proven only ifan inmate can demonstratethat prison officials have acted withdeliberate indifference to his orher serious medical needs (Matter of Wooley vNew York State Dept. a/CorrectionalServices, 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, plaintiffalleges that the City defendants "violated plaintiffs Eighth Amendment Rightofthe United States Constitution whenthey engaged in a deliberate indifference to serious medical needs ofprisoners, specifically, theplaintifftherein" (proposed amended complaint

## ,r 47). Plaintiffalleges that for days and/or weeks following his injury on July 29, 2017, the City defendants continued to deny, andnever provided, plaintiffadequate, prompt, orpropermedical care (Id. 

## ,r 48). Plaintiffalleges that the City defendants demonstrated
a deliberate indifference to his medical needs by failing to provide medical carethat 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 denyingproper and necessary treatment, and/or knowingly interfering withplaintiffsmedical treatment, exacerbated his injury (Id 

## ,r,r 49, 50). However, it is well-settled that a municipal defendant is subjectto statutory liability for deliberate indifferenceto medical needs under42 U.S.C. 1983 only where
an injury results from the execution ofar) unconstitutional policy orpractice (Small v St, Barnabas Hosp., 165 AD3d 576,576 [1stDept 2018]). Monell Liability: Therefore, in seeking to reinstate the claim, plaintiffcontends that theproposed amended complaintnow sets forth the necessary elements ofa Monell claim by demonstrating an official policy orpractice when it comes to administering medical care to inmates in the City defendants' care, 42 U.S.C. 1983 isthe statutory vehicleby which a plaintiffmay bring a civil claim based

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5 of 19 on an alleged violation or deprivation ofthe 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 ormunicipality may be held liable under 1983 for the deprivation ofConstitutional rights caused as a result ofan official policy orcustom (MoneUv 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 ofits employees on a theory ofrespondeat superior, rather the plaintiffmust 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 ofits employees, a plaintiff.is required to plead and prove three elements: (I) an official policy_or ' custom (2) that causes the plaintiffto be subjected to (3) a denial ofa constitutional right (Wray v City of New York, 490 F3d 189, 195 [2d Cir 2007]). A plaintiffseeking 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 ofthe pattern orplan will not suffice without a causal link and absent a showing ofa causal linkbetween an official policy or custom and the plaintiffs injury,afinding ofHability against the City is prohibited (Batista v Rodriguez, 702 F2d 393, 397 [2d Cir I983]). The injury alleged must consist ofa constitutional violation (Tirado v City of New York, 19CV10377LAKSN, 2021 WL 11646299, at *8 [SDNY Jan. 25, 2021]; see also City of LosAngeles v Heller, 475 US 796, 799, 106 S Ct 1571, 1573, 89 L Ed 2d 806 [1986]).

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6 of 19 A plaintiffmay showthe existence ofapolicy or custom by any ofthe following; (I}an express policy or custom; (2) an authorization ofa policymaker ofthe unconstitutional practice; (3) failure ofthe municipality to train or supervise its employees, which exhibits a deliberate indifference to the rights ofits citizens; or ( 4) a practice ofthe municipal employees that is so permanent and well settled so as to imply the constructive acquiescence ofseniorpolicymaking 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], affdsub nom. Corley v Wittner, 811 Fed Appx 62 [2d Cir 2020][summary order]). Whichevertheory plaintiff offers, boilerplate assertions ofa municipal policy are insufficientto 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 ofa custom, policy, or practice with respect to the City defendants alleged provision ofinadequate medical care, the proposed amended complaint includes a portion ofexcerpts ofcomplaints received in response to a Freedom oflnformation Law (FOIL) request, a news article about the experiences ofDr. HomerVenters, and two articles discussing the unfortunate deaths oftwo inmates. Plaintiffcontends that the factual allegations and exhibits inthe proposed amended complaint are sufficientto plead that the City defendants had an official policy that (I) was established by the actions or decisions ofa 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 '

Page 6 of 19 

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7 of 19 Policymaking Official: Plaintiffhas failed to adequately plead a claim ofliability basedon an official policy or custom estabiished by the actions ordecisions ofa municipal official. Even a single action by a . deeisionmaker who possesses final authority to establish municipal policy with respect to the action ordered may deprivethe plaintiffofhis orher constitutional rights (Montero v 

### Cityof Yonkers, 

### New York, 890 F3d 386, 403 (2d Cir 20181). When a non-decisionmakercommitted the violation, a plaintiffmust allege facts suggesting that an officerwith final policymaking authority ordered; ratified, orwas aware ofa subordinate's unconstitutional actions and consciously chose to ignore them, effectively ratifying the actions 

### (Hu v City of 

### New York, 927 F3d 81, I05 [2d Cir20191). The plaintiffmust show that the official has final policymaking power and that the challenged actions are within that official's area ofpolicymaking authority (Roe v 

### City of Waterbury, 542 F3d 31, 37 [2d Cir 2008)). Theproposed amended complaint includes an allegation thattheCity defendants, "by their policy-making agents, servants and employees, authorized sanctioned and/orratified the individual defendant's wrongful acts" (proposed amended complaint 

## ,r 54). However, the plaintifffails 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 vAntonini, 21 CIV. 1877 (NSR], 2022 WL 4387357, at *7 [SDNY Sept. 22, 2022); see also Schwab vSmalls, 435 Fed Appx 37, 40 [2d Cir 20II)). Accordingly, plaintiffalso fails to plead any factual allegations which would plausibly suggest thatany policymaking official was involved with, informed of, or otherwise made aware ofthe conduct which comprises his claim.

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8 of 19 Further, the article cited in the proposed amended complaint, entitled "Do Jails Kill People" and written about the fonner ChiefMedical 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. Plaintiffcontends thatthis article, from a person ofpower and authority, confirmsthe City defendants' alleged policy or practice ofadministering inadequate care which "camefrom the top down starting all the way at the Mayor's office" (affirmation ofplaintiff's counsel in opposition to cross mot

### 'I; 3 3). However, none ofthe factual allegations in the proposed amended complaint demonstrate that Dr. Venterwas an official with final policymaking power, reference the extent ofhis authority, or mention whether he exercised this authority to deprive inmates ofmedical care (Clarke vAntonini, 21 CIV. 1877 [NSR], 2022 WL 4387357, at •7 [SDNY Sept. 22, 2022]; see also Zherka vCity of New York, N. Y, 08 CV 9005 LAP, 2010 WL 4537072, at *4 [SDNYNov. 9, 201

### OJ, ajfdsub nom. Zherka v City of New York, 459 Fed Appx 10 [2d Cir2012]). Nor does the article includes allegations suggesting that other municipal officials, with final policymakingpowerregarding the provision ofmedical care to incarcerated individuals, had notice ofany unconstitutional conduct orordered, ratified, or consciously ignored the alleged practice ofdenying 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 ofbrutality v.'ithin Rikers (see Sifonte v City of New York, 194 AD3d 435,436 [1st Dept2021]). Therefore, the proposed amended

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

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9 of 19 caused by a City official with final policymaking authority 

### (see Hu v City of New York, 927 F3d 81, 105 [2d Cir2019]). 

### WidespreadPractice orPolicy: Plaintiffhas also failed to adequately plead the existence ofa policy orpractice that is so persistent and widespread it constitutes a custom through which constructive notice may have been imposed. An official policy requirement maybe met by alleging a practice so persistent and widespread, orpermanent and well settled, as to constitute

## acustom orusage with the force of law and to imply the constructive knowledge ofpolicymaking officials 

### (Felix v 

### Cityof New York, 344F Supp 3d 644, 653 [SONY 2018], citing

### Sorlucco v

### New York CityPolice Dept., 97l F2d 864, 870 [2d Cir 1992]). Such

# a policy may bepronounced ortacit and reflected in either action orinaction 

### (Lucente v

### County ofSl!ffolk, 980 F3d 284, 297 (2d Cir2020]). A practice is widespread when it is common orprevalent throughout the entity and underthis category, a policymaker indirectly causes the misconduct ofa subordinate by acquiescing in a longstanding prn.ctice or custom which may be fairly saidto represent official policy 

### (Buari v 

### City of New York, 530 F Supp 3d 356,398 (SONY 2021]). Therefore, to demonstrate a 

### defacto policy or custom, a plaintiffmust show that a policymaker was aware ofasubordinate'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 orpolicy offailing 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 ofa persistent orwidespread practice, plaintiffalleges that the

City defendants have been the subject ofnumerous complaints, grievances, lawsuits, and/or investigations withrespectto the provision ofmedical treatment or care 

### (see proposed amended

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10 of 19 complaint

## ,r,r 58, 6I). In support ofthis allegation, plaintiffcites to excerpts ofcomplaints 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 overthe deaths oftwo inmates at Rikers Island. These supporting exhibits, whether reviewed separately or in conjunction, fail to enable the plaintiffto adequately allege a claim. In the proposed amended.complaint, plaintiffoffers excerpts ofcomplaints that were made to 311 which he received through FOIL from "just a limited time prior to and including the time period ofthe subject incident," regarding the medical care ofinmates (proposed amended complaint

## ,r 61). Plaintiffalleges that these complaints demonstrate a longstanding policy or custom to ignore or disregard the medical complaints ofinmates and deprive them ofreasonable medical care (proposed amended complaint

## ,r ,r 60, 61). However, contemporaneous or subsequent conduct cannot establish a pattern ofviolations that would provide notice to the City and the opportunity to confirm to constitutional dictates (Douglas v City of Peekskill, 2l-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 plaintiffhimselfdescribes as being from a limited time before and during the time ofplaintiffs incident, do not support an inference ofa well-settled or longstanding practice ofwhich officials could have had notice. Notwithstanding, these 311. complaints are also insufficient to plead the existence ofa pattern orpractice ofproviding inadequate medical care that is consistent and widespread across the entity. Ofthe 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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11 of 19 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 partiesincluding inmates, family, and representatives, using various means and/or methods, and most ofwhich donot 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 ofa common orprevalentpractice throughout 

### the entity considering that the overwhelming majority are about/from Rikers Island, with very few coming from otherfacilities. 

### In addition, only a small number ofthese grievances contain allegations which attribute any conductto a specific ornamed employee within a facility and ofthese allegations, none implicate the same conduct oremployees. Finally, both the proposed amended complaint and these 311 complaints fail to include factual allegations that any relevant official orsupervisor
was aware ofthe complaints orthe allegations ofconduct within, yetconsciously 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 ofsimilar viol_ations to constitute an official policy or custom. Next, the "Do Jails Kill People" article is also insufficientto demonstrate the City defendants had a persistent or widespread practice ofproviding inadequate medical care to inmates. The article is based on Dr. Homer Venters' book, "Life and Death inRikers Island", about his personal observations while employedat Riker's Island. Aspreviously mentioned, this is a different facility than the one where plaintiffwas incarcerated, and the article makes no references to any other DOC facilities. As the articles are based on this one facility, itis insufficient to plead a common orprevalentpractice 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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12 of 19 neither can be saidto have provided notice to the Citydefendants ofany ofthe unconstitutional

.

## " conduct which may have been alleged within 

### (see Felix v City of New York, 344 F Supp 3d 644, 658 fSDNY 2018] [a plaintiffmay not rely on a later-publishedreport.when there does not appear to be any indication that officials

## had earlier notice oftheir 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 accompaniedby a date oryear. Ofthe incidents acc-0mpanied by a year, they are temporally distant and·involve misconduct that is not similarto that which comprisesthe plaintiffs alleged constitutional injury. The article orbook also contains more general allegations suggesting customs or practices which are not accompanied by
a date. However, without factual allegations in eitherthe proposed amended complaint and/or the article to plausibly suggest that these customs or usages were still the same atthe 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 ofa persistent and widespread pattern orpractice. A plaintiffmay allege a persistent orwidespread practiceby pleading that "the local r government, 'faced v.ith a pattern ofmisconduct 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 oftolerant awareness by supervisors ofthe conductto support an inference thatthey had a policy, custom, orusage ofacquiescence in ~uch conduct 

### (Lucente v County of Suffolk, 980F3d 284,297 (2d Cir 2020]). A plaintiffmay also bolster their claim by providing evidencethatthe municipality had notice ofbutrepeatedly failed tomake any

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13 of 19 meaningful investigation into allegations ofconstitutional violations, such as by citing to similar incidents from otherlawsuits 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]). 

## Aplaintiffmay plead_the existence ofa 

### defacto policy by citing to complaints in othercases that contain similar allegations 

### (Buari v City of New York, 530 F Supp 3d 356,399 (SONY 2021)). Such complaints must involve factually similarmisconduct, be contemporaneous to the misconduct at issue in the plaintiff's case, and result in an adjudication ofliability (Id.). Accordingly, the two news articles involving lawsuits overthe deaths oftwo inmates at Rikers Island which are ·referenced in theproposed amended complaint are insuflicient to allege
a 

### defacto custom orpolicy. Neither ofthe two v.Tongful death lawsuits highlighted by these articles resulted in adjudication on liability butrather bothcases ended in settlement without an admission or finding ofliability. The two articles also involve misconduct that is temporally distant, with the cases arising out ofevents 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 oractors 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 insufficientto plead the existence of
a 

### defacto custom orusage ofwhich the City defendants hadnotice. 

### Failure to Train orSupervise:

1 Notwithstanding, these articles are insufficient to establish a persistent or longstanding practice as one ofthese articles discusses that afterthe 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 theCity agency NYC Health & Hospitals would b_e taking over the provision of medical care injails (see NY5CEF Doc. No. 90). Accordingly, these articles do notsuggest an inference oftolerant awareness or acquiescence by the City defendants (see Outlawv City of Hartford, 884 F3d 351, 380 [2d Cir 2018)). 1589491201B BARRETT, MONTEvs. MANHATT AN DETENTION COMPLEX 

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14 of 19 Finally, the proposed amended complaint fails to set forth a claim ofMonell liability undertheories ofthe City defendants' failure to train orfailure to supervise its subordinates, such that it amounted to deliberate indifference. The official policy requirement may be metby identifying a failure to train or supervise subordinates in a relevant respect, amounting to a deliberate indifference to the rights ofthose 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 ofcurrentpractices so likely to result in thedeprivation offederal rights, that the municipality
... can be found deliberatelyindifferent to the need"' (Pettifordv City of Yonkers, 14 CIV. 6271 [JCM], 2021_WL 2556172, at *6 [SONY June 21, 2021] quoting Reynolds v Giuliani, 506 F3d l83, 192 [2d Cir2007)). However, a 1983 claim against a municipality is at its weakest where it turns on an alleged failure to train or supervise (Greene v Cityof New York, 742 Fed Appx 532, 536 [2d Cir2018] quoting Connick v Thompson, 563 US 51, 61, 131 S Ct 1350, 1360, 179 L Ed 2d 417 (2011]). Claims ofmunicipal 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 plaintiffmust allege that a municipality's failure to train its employees in a relevantrespect amounted to a deliberate indifference to the rights ofpersons with whom the untrained employees come into contact (Hernandez v UnitedStates, 939 F3d 191,207 [2d Cir 2019]). _Deliberate indifference is a stringent standard offault, and for liability to attach in this circumstance, the identified deficiency in a city'strainingprogram must be closely related to the ultimate injury (Hernandez

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15 of 19 v UnitedStates, 939 F3d 191,207 [2d Cir 2019J). The proposed amended complaint does not set forth factual allegations thatthe City defendants failed to train suhordinates orthat suggest an obvious need for more ordifferent 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 bettertraining, identify deficiencies in the City defendants' training ofits·subordinates, orotherwiseimplicate a failure to train in somerespect (Felix v City of New York, 344 F Supp 3d 644, 660 [SDNY 2018]). Considering, plaintiffhas 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 plaintiffmust plausibly allege that the City'spolicymakers 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 onAmnesty Am. v Town o/W. Hartford, 361 F3d 113, 127 [2d Cir 2004]). In the proposed amended complaint, plaintiffalleges that all acts and omissions were carried out pursuant to overlapping policies andpractices ofthe City defendants, which were in existence at the time ofthe conduct alleged and were engaged in with the full knowledge, consent and cooperation and underthe supervisory authority ofthe City defendants (proposed amended complaint 

### ,i 53). Additionally, ' . plaintiffalleges that the City defendants, by theirpolicy-making agents, servants and employees, authorized, sanctioned, and/orratified 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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16 of 19 To establish a custom or policy through a municipality's deliberate indifference to a failure to supervise, the plaintiffmust show that the need for more orbetter supervision to protect against constitutional violations was obvious (see Vasquez v Cityof New York, 20-CV4641 [ER], 2023 WL 8551715, at *6 [SONY Dec. 11, 2023); relying on Vann v City of New York, 72 F3d I040, I049 [2d Cir 19951). A plaintiffmay plead a failure to superviseby showing (1) a pattern ofallegations oforcomplaints about, ora pattern ofactual, 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 resultin a formal finding ofmisconduct for such complaints to support findings offailure 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 proofthat a municipal actor disregarded a known
or ob.vious consequence (Yousef v County of Westchester, I9-CV-1737 [CS), 2020 WL 2037177, at *11 [SONY Apr. 28, 2020]). A plaintiffmustplead sufficient facts to make it plausible that the municipality was on notice ofsimilar 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 plaintifffailed toplead a claim ofa persistent and widespread practice, plaintiffhas also failed to plead a claim for the failure to supervise based on
an obvious need forbetter supervision. Plaintiffhas failed to include factual allegations which. allege a pattern ofsimilarviolations or misconduct, norinclude allegations which would suggest the City defendants' notice. Further, even ifthe allegations in the proposed aniended complaint were sufficient to allege a pattern orpractice, the plaintiffhas failed to adequately allege the City defendants'

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17 of 19 deliberate indifference to such. An allegation ofnwnerousclaims ofthe underlying constitutional wrong by itselfis insufficientto raise an inference ofdeliberate 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 plaintiffmust allege that meaningful attemptsto 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 ratherthan to conscious choice (Outlaw v Cityof 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 ofindividuals similarly situated and demonstrated their deliberate indifference to medical complaints not only ofthe plaintiff, but ofcountless inmates before him (proposed amended complaint,i 

## ,r 58, 60). Additionally, plaintiffalleges thatthe City defendants, by their policy0making agents, servants and employees, authorized, sanctioned, and/orratified the individual defendants' acts as alleged, and/or failed to preventor 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 consistentfailure to investigate or forestall incidents. The. proposed amended complaint fails to allege thatdespite notice ofother similar complaints, there was a consistent failure to orlack ofany meaningful attempt to investigate. Nor do the additional sources included in the proposed amended complaint plead the City defendants' deliberate indifference to the provision ofinadequate medical care. In fact, within the 311 complaints provided by the plaintiffand ofthe ones involving the need or requests for medical care, there are responses and/or indication that those matters were forwarded for review.

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18 of 19 and/or were being investigated by staffat the facilities (see NYSCEF Doc. No. 88 at 222-223; 224-232; 233-236; 241-243; 250). These responses indicate that the complaintmatter was either addressed, resolved, and/orthe complaint was found tobe unsubstantiated (Id.). Considering, the plaintiffhas failed to adequately allege a failure to supervise claim based onthe City defendants' deliberate indifference. Causation: Finally, supposing the plaintiffplausibly allege~ an official policy orcustom, his claim against the City defendants would nevertheless fail as he has not alleged a constitutional violation that was caused by said custom orpolicy. Plaintiffmerely alleges that the City defendants "clearly have established an official policyor custom which causes plaintiffs and others similarly situatedto him, to be subjected to a denial ofa constitutional right" (proposed· amended complaint at 60).Butmunicipalities may only be held liable when the municipality itselfdeprives an individual ofa constitutional right (Dume! v Westchester County, 19-CV-2161 [KMK], 2021 WL 738365, at •4 [SDNY Feb. 25, 2021)). Therefore, a plaintiffmust show a direct oraffirmative causal link between a municipal policy or custom and the alleged constitutional deprivation (Outlaw v City of Hartford, 884 F3d 35l, 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 "movingforce" behind plaintiffs' injury- a showing that amountstoproximate cause (Felix v Cityof New York, 344 F Supp 3d 644, 654 [SDNY 2018]). Plaintiffhas not included factual allegations to plausibly connect his asserted injury to the alleged policy or custom, orwhich would otherwise support an inference that the City defendants' policy orpractices 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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19 of 19 I:19-CV-03887-MKV, 2021 WL 466974, al *7 [SDNY Feb. 9, 2021]). As the plaintiffhas not adequately alleged a causal linkbetween an official policy orcustom and his alleged, his claim based onMonell 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 orderofthe 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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