UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

-------------------------------------------------------------------x 

 : 

MARVIN SANDERS, : 

 : 

 Plaintiff, : 

 : 

 -against- : 

 : 07-cv-3390 (SHS) 

 : 

NEW YORK CITY DEPARTMENT OF : MEMORANDUM OPINION

CORRECTIONS; MARTIN F. HORN, Commissioner; : & ORDER

CAPTAIN LOCKHARD, Security Capt. North : 

Infirmary Command; JEROME I. DAVIS, Dep. of : 

Security, N.I.C.; C.O. DAVIS, N.I.C.; : 

C.O. D’AMMICO; FRANK SQUILLANTE, : 

Warden, N.I.C. : 

 : 

 Defendants. : 

 : 

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SIDNEY H. STEIN, U.S. District Judge. 

 Plaintiff Marvin Sanders brings this action pro se pursuant to 42 U.S.C. § 1983 

against defendant New York City Department of Corrections (“DOC”) and defendants 

Martin F. Horn, Jerome I. Davis, Frank Squillante, “Captain Lockhard,” “C.O. Davis, 

N.I.C.,” and “C.O. D’Ammico” in their individual capacities.1

 The lawsuit arises from 

injuries suffered by Sanders at the hands of a fellow prisoner while incarcerated at Rikers 

Island in April 2003. Read liberally, the complaint alleges that defendants denied 

Sanders his constitutional rights through their (1) deliberate indifference to his personal 

safety, and (2) deliberate indifference to his medical needs. Plaintiff seeks 

$350,000,000.00 in damages. 

 

1

 As discussed further below, while “Captain Lockhard,” “C.O. Davis, N.I.C.,” and “C.O. D’Ammico” 

were named in plaintiff’s complaint, they were never served with the summons and complaint and therefore 

are not formally parties to this litigation. 

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Following discovery, defendants have moved for summary judgment on all 

claims, arguing that (1) plaintiff’s claims are time barred by the applicable statute of 

limitations; (2) plaintiff fails to allege the personal involvement of any of the properly 

named and served defendants; (3) plaintiff fails to state a claim for deliberate indifference 

under section 1983; and (4) plaintiff can not demonstrate deliberate indifference to his 

medical needs.2 Because the Court finds that no issues of material fact remain in dispute 

and that defendants are entitled to judgment as a matter of law, summary judgment is 

granted to defendants on all claims. 

I. BACKGROUND 

Viewing the evidence in the light most favorable to plaintiff on defendants’ 

motion for summary judgment and resolving all factual disputes in his favor, the 

following facts are relevant to the present motion:

In April 2003, plaintiff Marvin Sanders was housed, as a pre-trial detainee, in the 

North Infirmary Command Facility of New York City Department of Corrections, located 

on Rikers Island. On the evening of April 27, 2003, Sanders learned of a threat to him 

made by another prisoner, Raheim Kyser (“Kareem”)3

 (Dep. of Marvin Sanders dated 

Mar. 19, 2008 (“Sanders Dep.”) at 49:20-50:12.) The threat was brought to the attention 

of a correction officer on duty, “Ms. Johnson,” who brought Sanders and Kareem 

 

2

 Defendants also assert, in support of their motion for summary judgment, that (1) the City defendants are 

protected by the doctrine of qualified immunity; (2) The New York City Department of Corrections is not a 

suable entity; and (3) plaintiff cannot sustain any state law claims against City defendants. (Defs.’ Mem. of 

Law in Supp. of Mot. for Summ. J. dated June 30, 2008, 2). First, the Court is able to resolve this motion 

without addressing issues of qualified immunity and therefore expresses no opinion regarding the subject. 

Second, as discussed further below, the Court will substitute the City of New York for the Department of 

Corrections as a named defendant. Finally, after reviewing the complaint, the Court finds it asserts no state 

law claims. 

3

 Because Mr. Kyser is referred to as “Kareem” by plaintiff, the Court will also refer to Mr. Kyser as 

Kareem. 

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together to discuss the matter at approximately 10:30 p.m. and was assured by both men 

at that time that no further trouble would ensue. (Sanders Dep. at 52:21-54:17.) 

Unable to sleep, however, Sanders alerted the overnight supervisor, “Captain 

Lockhard,” that he “[didn’t] feel comfortable,” some time between 1 and 3 a.m. (Sanders 

Dep. at 55:18-56:25.)4

 While Sanders told Lockhard that “I feel my life is in danger” 

(Sanders Dep. at 57:2) and requested to be relocated to another unit, he did not specify 

the basis for his fear, and, in particular, made no mention of Kareem or the alleged threat 

made earlier that evening. (Sanders Dep. at 57:22 -58:16.) Captain Lockhard was 

unsympathetic to Sanders’ fears and told him to “get on your F-ing bunk.” (Sanders Dep. 

at 56:16-25; 57:10.) 

 At approximately 4 a.m. on the morning of April 28, 2003,5

 Sanders was attacked 

by Kareem, resulting in a four-inch laceration along the right side of Sanders’ face. 

Sanders immediately notified prison guards of the attack and was promptly removed from 

his cell and taken first to the prison intake center and then transferred to an urgent care 

center. (Sanders Dep. at.78:10 -79:11.) At approximately 5:30 a.m. Sanders received 

nearly fifty sutures to close the wound. (Injury to Inmate Report dated Apr. 28, 2003, Ex. 

F to Decl. of Gabriel Harris dated June 30, 2008 (“Harris Decl.”).) As a result of the 

attack, Sanders has a four-inch scar on his face, and complains of discomfort and lasting 

psychological trauma. (Sanders Dep. at 68:17-69:4; 90:9-91:16.) 

 On September 29, 2003, plaintiff filed a lawsuit naming the DOC, Martin F. 

Horn, “Captain Lockhard,” Jerome I. Davis, “C.O. Davis,” “C.O. D’Ammico,” and Frank 

 

4

 Plaintiff’s memory of the time this conversation took place has ranged from 1 to 3 a.m. For purposes of 

the the pending motion, the exact time of the conversation is irrelevant. 

5

 Plaintiff’s complaint alleges the events in question occurred on the morning of April 29, 2003. Having 

reviewed the entire record, including prison and medical reports, the Court is satisfied the events in 

question actually occurred on the morning of April 28, 2003. 

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Squillante as defendants. The complaint can be fairly read to allege deliberate 

indifference by defendants to plaintiff’s safety and his medical needs while in custody. 

Sanders v. Dep’t of Corrections, et al., 03-civ-7668 (S.D.N.Y. Sept. 29, 2003) 

(complaint). That action was assigned to Judge Richard Conway Casey, who referred the 

matter for general pretrial proceedings to Magistrate Judge Richard Ellis. 

 On October 11, 2005, Magistrate Judge Ellis issued a Report and 

Recommendation. Finding that the plaintiff had never served any of the defendants with 

the summons or a copy of the complaint, Magistrate Judge Ellis recommended the suit be 

dismissed, without prejudice, pursuant to Federal Rule of Civil Procedure 4(m). Sanders 

v. Dep’t of Corrections, et. al., 03-civ-7668 (S.D.N.Y. Oct. 11, 2005). A copy of the 

Report and Recommendation was mailed to defendants and to plaintiff at the Rikers 

Island address provided by him, informing the parties of the recommended course of 

action and instructing them to file any written objections within ten days. No party filed 

objections, and, on November 5, 2003, Judge Casey issued an order adopting Magistrate 

Judge Ellis’s recommendation in its entirety and dismissing the suit. Sanders v. Dep’t of 

Corrections, et al., No. 03-civ-7668 (S.D.N.Y. Nov. 3, 2005). 

On April 27, 2007, plaintiff instigated the present action by filing a complaint 

naming the same defendants and raising the same substantive claims as in the first suit. 

Plaintiff averred the new action should be allowed to proceed due to “mitigating 

circumstances,” in particular, that defendants “did not hand to Plaintiff, mail from the 

Court, thus forcing a dismissal.” (Compl. at 1.) This litigation was assigned to this Court 

and was referred to Magistrate Judge Michael H. Dolinger for general pretrial 

proceedings. 

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Under Magistrate Judge Dolinger’s supervision, the parties proceeded with 

discovery, and defendants deposed plaintiff in March 2008. Plaintiff moved for 

appointment of counsel to assist in the prosecution of this case, and on June 20, 2008, 

Magistrate Judge Dolinger issued an order granting that motion. Sanders v. Dept’ of 

Corrections, et. al., No. 07-civ-3390 (S.D.N.Y. July 9, 2008). 

On June 30, 2008, defendants moved for summary judgment. By letter dated 

August 8, 2008, Magistrate Judge Dolinger informed plaintiff that he would have to 

respond to defendants’ motion regardless of whether or not appointed counsel had yet 

been provided and that any response would be due by August 30, 2008. (Letter from 

Magistrate Judge Michael T. Dolinger to Marvin Sanders, dated Aug. 8, 2008.) To date, 

no response from plaintiff has been received. 

II. ANALYSIS 

A. The Summary Judgment Standard

Summary judgment is appropriate if the evidence shows that there is no genuine 

issue of material fact and the moving party is entitled to judgment as a matter of law. 

Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A 

genuine issue of material fact exists where the record taken as a whole could lead a 

reasonable trier of fact to find for the non-moving party. Matsushita Elec. Indus. Co. v. 

Zenith Radio Corp., 475 U.S. 574, 587 (1986). 

In determining whether a genuine issue of material fact exists, the Court “is to 

resolve all ambiguities and draw all permissible factual inferences in favor of the party 

against whom summary judgment is sought.” Patterson v. County of Oneida, 375 F.3d 

206, 219 (2d Cir. 2004). Where the non-moving party is a pro se litigant, the court must 

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“liberally construe his pleadings” so as to “interpret his complaint to raise the strongest 

arguments it suggests.” Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). The nonmoving party, however, “may not rely on mere conclusory allegations nor speculation, 

but instead must offer some hard evidence” in support of its factual assertions. D’Amico 

v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). 

The court has a special obligation to ensure that a pro se litigant is aware of the 

consequences of a motion for summary judgment. Irby v. N.Y. City Transit Auth., 262 

F.3d 412, 414 (2d Cir. 2001) (per curiam); see also S.D.N.Y. R. 56.2 (represented party 

must inform pro se opponent of consequences of motion for summary judgment).6 A 

party’s failure to oppose summary judgment can not serve, in and of itself, as grounds for 

granting the motion. Vt. Teddy Bear Co., Inc. v. 1-800-BEARGRAM Co., 373 F.3d 241, 

244 (2d Cir. 2008). Even when a summary judgment motion is unopposed, the district 

court has the responsibility to search the entire record to determine if issues of material 

fact remain in dispute. Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) 

(failure to do so “would derogate the truth-finding functions of the judicial process by 

substituting convenience for facts”). 

B. Statute of Limitations

 Claims brought pursuant to 28 U.S.C. § 1983 are subject to the statute of 

limitations imposed by the appropriate state’s law for personal injury actions. Wilson v. 

Garcia, 471 U.S. 261, 276 (1985). In New York, the applicable statute of limitations is 

three years, and it begins to run “once the plaintiff knows of the injury on which a claim 

is based.” Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 331 (2d Cir. 1997) 

(citations omitted). 

 

6

 Plaintiff was served with that notice pursuant to local rule 56.2 on August 13, 2008. 

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 Here, the events and injuries underlying plaintiff’s claims occurred on April 27-

28, 2003. (Def.’s Local Civil Rule 56.1 Statement of Undisputed Facts (“Def.’s 56.1”) ¶¶ 

8-10, 18.) The three-year statute of limitations for any claims arising from those events 

therefore expired on April 28, 2006. Being as generous as possible to the plaintiff in 

terms of the statute of limitations, this Court is prepared to accept that the present suit 

was “filed” the very day it was signed and witnessed—March 15, 2007. That date is 

almost one year after the statute of limitations expired. 

 As noted above, however, Sanders had previously filed, within the applicable 

statute of limitations, a suit raising the same claims as in this action and premised on the 

same events. That suit, filed in August 2003, was dismissed without prejudice in 

November 2005 for failure to comply with Fed. R. Civ. P. 4(m). Sanders v. New York 

City Dep’t of Corrections, et al., 03-cv-7688 (S.D.N.Y. Nov. 3, 2005). Plaintiff contends, 

in his present complaint and at his deposition, that defendants improperly denied him 

access to mailings and information regarding the status of that case, thereby precluding 

him from filing objections to the magistrate’s recommendation that the action be 

dismissed pursuant to Fed. R. Civ. P. 4(m). (Compl. at 1; Sanders Dep. at 126:12-16.) 

Assessing plaintiff’s complaint in the most favorable light, it can be read to assert that the 

statute of limitations should be tolled to account for the delay he alleges defendants 

caused in his prosecution of this case. 

 Although federal law determines when a section 1983 action accrues, courts look 

to state tolling rules to determine whether the statute of limitations should be tolled. 

Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002). New York law recognizes 

the doctrines of equitable tolling and equitable estoppel, which can overcome a statute of 

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limitations defense if the “plaintiff was induced by fraud, misrepresentations or deception 

to refrain from filing a timely action.” Abbas, 480 F.3d at 642. However, if a “plaintiff 

cannot articulate any acts by defendants that prevented him from commencing suit, then 

he has failed to meet his burden of showing he was wrongfully induced by defendants not 

to commence suit.” Id. (citing authority) (internal alterations, quotations omitted). 

 The doctrine of equitable estoppel is unavailing for Sanders here for two reasons. 

First, he is unable to point to any specific fraudulent, misrepresentative, or deceptive 

statements or acts by defendants that precluded him from filing or prosecuting this suit in 

a timely fashion. Plaintiff’s sole allegation in this regard—that defendants somehow 

denied him access to Magistrate Judge Ellis’s Report and Recommendation informing 

him that the first suit was to be dismissed—is neither sufficiently specific nor supported 

by anything beyond plaintiff’s bare assertion. 

 Second, plaintiff’s failure to receive Magistrate Judge Ellis’ Report, assuming he 

did not in fact receive it, appears to be the result of his own omission. Defendants 

contend, and Sanders does not deny, that he was no longer at the same address listed on 

his complaint at the time Magistrate Judge Ellis issued his Report in October of 2005.7

 

Plaintiff argues, however, that defendants were aware of his new location and were under 

an obligation to ensure that mail sent to him at his previous prison address was properly 

forwarded. (Sanders Dep. at 103:12-18.) This is simply not the case. See Handlin v. 

Garvey, No. 91-civ-6777, 1996 U.S. Dist. LEXIS 17281, at *13 (S.D.N.Y. Nov. 20, 

 

7

 There is some disagreement in the record over precisely where Sanders was located on October 11, 2005. 

Defendants contend Sanders had been released from DOC confinement on October 4, 2005, and therefore 

was no longer under their control. (Def’s 56.1 ¶ 34.) Plaintiff suggests he was “on Rikers Island in C-76” 

at the time (Sanders Dep. at 103:14.) The dispute need not be resolved at this stage, however, since the 

Court is able to conclude that, by any account, the plaintiff had changed addresses since filing his 

complaint and had not notified the court of his change of address. 

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1996) (duty to inform court of change of address is “an obligation that rests with all pro 

se plaintiffs”).8

Nevertheless, a litigant is entitled to notice and an opportunity to be heard before 

his suit is dismissed, even if the dismissal is without prejudice. Snider v. Melindez, 199 

F.3d 108, 113 (2d Cir. 1999). Unless it is “unmistakably clear” that the complaint is 

defective, the Second Circuit has decried as “bad practice” dismissal “without affording a 

plaintiff to be heard in opposition.” Id. Constitutionally sufficient notice need not be 

actual notice but must at least be “reasonably calculated, under all the circumstances, to 

apprise interested parties of the pendency of the action and afford them an opportunity to 

present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 

314 (1950). 

Here, such notice was provided when Magistrate Judge Ellis mailed a copy of his 

Report and Recommendation to Sanders, directing him to respond with any objections by 

a certain date. The notice was reasonably calculated to apprise Sanders of his rights—it 

was sent, via U.S. Mail, to the address listed by Sanders on his complaint. If Sanders had 

been transferred or released by then, he was under an obligation to inform the court of his 

new contact information. Handlin, 1996 U.S. Dist. LEXIS 17281, at *13; see also Dong 

v. United States, No. 02-civ-7751, 2004 U.S. Dist. LEXIS 3125 (S.D.N.Y. Mar. 2, 2004). 

It was neither the court’s nor the defendants’ obligation to monitor plaintiff’s movements 

or to independently update their records. Dansby v. Albany County Corr. Facility Staff, 

No. 95-cv-1525, 1996 U.S. Dist. LEXIS 4782, at *1 (W.D.N.Y. Apr. 10, 1996) 

(collecting cases). 

 

8

 Finally, it is worth noting that plaintiff offers no explanation whatsoever for his failure to serve 

defendants in the first action during the nearly two years between filing his complaint and the time at which 

Magistrate Judge Ellis issued his Report and Recommendation. 

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Sanders’ complaint, in sum, was filed after the three-year statute of limitations 

had run and cannot be saved through equitable tolling.9 Moreover, he was given legally 

sufficient notice that his initial action would be dismissed before the court in fact 

dismissed it. His present suit is therefore time barred and must be dismissed. 

C. Lack of Personal Involvement of Served Defendants

In a section 1983 action, a plaintiff must allege with specificity the personal 

involvement of each named defendant in the alleged constitutional deprivations. Colon v. 

Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (personal involvement is a “prerequisite to an 

award of damages under § 1983”). Here, while plaintiff named seven defendants in his 

complaint, only defendants Horn, Squillante, Jerome Davis, and the City of New York 

were properly served.10 Defendants Captain Lockhard, Corrections Officer Keisha Davis 

(sued as “C.O. Davis, N.I.C.”), and C.O. D’Ammico were never served, and the Court 

therefore dismisses the complaint against them pursuant to Fed. R. Civ. P. 4(m). 

Because plaintiff has failed to allege sufficiently the personal involvement of the 

remaining defendants—Commissioner Martin Horn, Warden Frank Squillante, and 

Assistant Deputy Warden Jerome Davis (“supervisory defendants”)—or to allege a 

custom or policy sufficient to state a claim against the City, his complaint must be 

dismissed. 

 

9

 Nor is Sanders entitled to take advantage of the filing date of his original action by “relating back” claims 

raised in the present complaint. Federal Rule of Civil Procedure 15(c) credits parties making certain 

amendments to existing pleadings with the original filing date of those pleadings when considering whether 

subsequent amendments are time barred, but the rule—and the doctrine—has no applicability where, as 

here, the party files an entirely new complaint. See Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000); 

see also Neverson v. Bissonnette, 261 F.3d 120, 126 (1st Cir. 2001) (“Rule 15(c) simply does not apply 

where . . . the party bringing suit did not seek to ‘amend’ or ‘supplement’ his original pleading, but, rather, 

opted to file an entirely new petition at a subsequent date.”). 

10 Although Sanders named the New York City Department of Corrections as a defendant, city law 

provides that all actions “shall be brought in the name of the city of New York and not in that of any 

agency, except where otherwise provided by law.” N.Y. City Charter ch. 17 § 396. Plaintiff successfully 

served a copy of the complaint on Corporation Counsel for the City of New York. The Court will therefore 

substitute the City of New York for the Department of Corrections as a named defendant in this action. 

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1. Supervisory Defendants

Commissioner Horn, Warden Squillante, and Assistant Deputy Warden Davis are 

all DOC supervisors. A plaintiff can establish the personal involvement of a supervisory 

employee in a section 1983 action through evidence that: “(1) the defendant participated 

directly in the alleged constitutional violation, (2) the defendant, after being informed of 

the violation through a report or appeal, failed to remedy the wrong, (3) the defendant 

created a policy or custom under which unconstitutional practices occurred, or allowed 

the continuance of such policy or custom, (4) the defendant was grossly negligent in 

supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited 

deliberate indifference to the rights of inmates by failing to act on information indicating 

that unconstitutional acts were occurring.” Id. (citing Wright v. Smith, 21 F.3d 496, 501 

(2d Cir. 1994) (quoting Williams v. Smith, 781 F.2d 319, 323-23 (2d Cir. 1986))). 

On its face, plaintiff’s complaint fails to allege any of the above. Indeed, the 

complaint fails to mention any of the supervisory defendants beyond the initial caption, a 

fact plaintiff concedes (Sanders Dep. at 111:13-112:1.) and instead focuses on the alleged 

misconduct of “Captain Lockhard” and Corrections Officer Keisha Davis, neither of 

whom has been served with the complaint. 

In his subsequent deposition, plaintiff suggested that the served defendants failed 

to supervise, train, and instruct Lockhard and Corrections Officer Davis. (E.g., Sanders 

Dep. at 113:22-114:10). Such allegations are not contained in the complaint, and, 

moreover, plaintiff has been unable to point to concrete evidence of any failure to 

supervise, train, or instruct by the served defendants. In fact, plaintiff has provided no 

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evidence linking the named supervisory defendants in any way to the events underlying 

plaintiff’s claims or even suggesting awareness by them of these events. 

Plaintiff’s “bare assertions,” which were not present in his complaint and which 

lack any supporting evidence, are insufficient to survive summary judgment. The 

complaints therefore must be dismissed against the supervisory defendants. 

 2. City of New York

 For a municipality to have “personal involvement” for purposes of a section 1983 

claim, a plaintiff must establish (i) “the existence of a municipal policy or custom” and 

(ii) a “causal connection . . . between the policy and the deprivation of his constitutional 

rights.” Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (citing 

Oklahoma City v. Tuttle, 471 U.S. 808, 818-23 (1985)). The policy or custom 

requirement can be met by alleging the existence of “(1) a formal policy officially 

endorsed by the municipality, (2) actions taken by government officials responsible for 

establishing the municipal policies that caused the particular deprivation in question, (3) a 

practice so consistent and widespread that it constitutes a custom or usage sufficient to 

impute constructive knowledge of the practice to policymaking officials, (4) a failure by 

policymakers to train or supervise subordinates to such an extent that it amounts to 

deliberate indifference to the rights of those who come into contact with the municipal 

employees.” Allan v. City of New York, 386 F. Supp. 2d 542, 545 n.3 (S.D.N.Y. 2005) 

(internal citations omitted). 

 The complaint fails to make any such allegations. In particular, Sanders fails to 

allege the existence of any custom or policy even remotely related to the harms he 

suffered, let alone a causal connection between a custom or policy and his injuries. The 

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absence of such allegations, coupled with Sanders’s failure to adduce any evidence of 

“personal involvement” by New York City, is fatal to his complaint against it, and his 

claims against the City must therefore also be dismissed. 

D. The Merits

 While plaintiff’s action must be dismissed first as time barred and second because 

it fails to allege the personal involvement of any of the defendants still a party to the suit, 

the Court is also able to conclude on the basis of this record that no issues of material fact 

remain in dispute and that defendants are entitled to judgment as a matter of law on each 

of plaintiff’s claims. 

 The complaint can be read to assert two potentially cognizable section 1983 

claims: deliberate indifference to plaintiff’s safety, and deliberate indifference to 

plaintiff’s medical needs. Both claims turn on a showing of “deliberate indifference” by 

defendants, a term the Supreme Court has explained “describes a state of mind more 

blameworthy than negligence.” Farmer v. Brennan, 511 U.S. 825, 835 (1994). 

Establishing deliberate indifference requires a showing that the defendant “knows of and 

disregards an excessive risk to inmate health or safety.” Id. at 837. To meet that 

standard, “the official must both be aware of facts from which the inference could be 

drawn that a substantial risk of harm exists, and he must also draw the inference.” Id. 

Where the defendant is a municipality, plaintiff must establish a policy or custom of 

permitting such deliberate indifference, or a failure by policymakers to train or supervise 

subordinates to such an extent that it amounts to deliberate indifference. Cf. Allan, 386 F. 

Supp. at 545 n.3. 

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