Opinion
1:21-cv-01469 (VEC) (SDA)
05-19-2023
Antonio Capolongo, Plaintiff, v. Cynthia Brann and Patsy Yang, Defendants.
TO THE HONORABLE VALERIE E. CAPRONI, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE
INTRODUCTION
Plaintiff Antonio Capolongo (“Plaintiff” or “Capolongo”) brings this action under 42 U.S.C. § 1983, alleging that defendants Cynthia Brann (“Brann”), then Commissioner of the New York City Department of Correction (“DOC”) and Patsy Yang (“Yang”), Senior Vice President of Correctional Health Services (“CHS”) (together, “Defendants”), violated his constitutional rights while he was detained at the Vernon C. Bain Center (“VCBC”) by failing to adequately protect him from the threat of COVID-19. (Compl., ECF No. 1.)Currently before the Court is Defendants' motion for summary judgment. (Mot. Summary J., ECF No. 42.)
At the time he filed his Complaint, Plaintiff was proceeding pro se. (See Compl. p. 7.) On August 8, 2022, counsel appeared on behalf of Plaintiff. (Not. of Appearance, ECF No. 32.)
For the reasons set forth below, I respectfully recommend that Defendants' motion be GRANTED.
FACTUAL BACKGROUND
I. Plaintiff
Capolongo was detained at the VCBC from January 6, 2021 May 26, 2021. (Defs.' Rule 56.1 Statement of Undisputed Facts (“Defs.' SOF”), ECF No. 45, ¶ 2.) Capolongo alleges that Brann and Yang were deliberately indifferent by ignoring COVID-19 guidelines set by the Center for Disease Control, including regarding social distancing, as well as ignoring policies regarding capacity restrictions. (Compl. at pp. 4-5.) Capolongo alleges that Defendants authorized his assignment to VCBC, even though it was already over 95% capacity, and that they forced him into Dormitory 2-BA even though he told “staff” he feared for his safety. (Id.) Capolongo further alleges that Dormitory 2-BA was at 60% of maximum capacity with no ability to social distance and that the beds were 3 to 4 inches behind one another and 3 to 4 feet across from one another with no dividers or other safety guards. (Id. at p. 5.) In addition, Capolongo alleges that he made two complaints to 311, on February 4, 2021 and February 9, 2021, which Brann and Yang ignored. (Id.) Plaintiff was repeatedly tested for COVID-19. (Defs.' SOF ¶ 67.) On March 5, 2021, after he filed the Complaint in this action, Plaintiff tested positive for COVID-19. (Id.) Plaintiff was offered the vaccine but declined to take it. (Id. ¶ 70.) Plaintiff asserts that, as a result of contracting COVID-19, he suffered an exacerbation of his asthma. (Zelenetsky Decl. ¶ 13.)
Plaintiff did not file a paragraph-by-paragraph response to Defendants' 56.1 Statement as required by Local Civil Rule 56.1. However, Plaintiff did file a “Counterstatement of Facts” in which he denied the allegations contained in paragraphs 18-20, 25 and 30 of Defendant's Statement of Facts. (Pl.'s Counterstmnt., ECF No. 51-1, ¶ 1.) Accordingly, the Court considers the remaining paragraphs of Defendants' Statement of Facts as undisputed. See Brown v. City of New York, No. 21-CV-04632 (PGG) (SLC), 2023 WL 2908661, at *5 (S.D.N.Y. Jan. 30, 2023), report and recommendation adopted, 2023 WL 2496089 (S.D.N.Y. Mar. 14, 2023) (“[a] nonmoving party's failure to respond to a Rule 56.1 statement permits the court to conclude that the facts asserted in the statement are uncontested and admissible.”) (quoting T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009)).
II. COVID-19 Protocols At VCBC
Additional countermeasures taken by DOC and CHS in response to COVID-19 are set forth in the Declaration of Acting Assistant Chief and Former VCBC Warden Tanisha Mills, dated March 18 2022, and the Declaration of Patsy Yang, dated March 21, 2022, originally filed in Prendergast v. Brann et al., No. 20-CV-09418. (See Mills Decl., Alexander Decl. Ex. E, ECF No. 44-5; Yang Decl., Alexander Decl. Ex. F, ECF No. 44-6.) Although Plaintiff argues that these declarations do not apply to him (see Zelenetsky Decl., ECF No. 51, ¶¶ 25-29), except where otherwise indicated, he has not presented any evidence that these policies were not the policies at VCBC during the relevant time period. Here, the Court summarizes the countermeasures most relevant to Plaintiff's claims that are not disputed by Plaintiff.
Beginning on or around May 4, 2020, all new admissions to VCBC were offered a COVID-19 test. (Defs.' SOF ¶ 4.) Inmates who agreed to be tested were held in a housing area for newly admitted individuals with pending COVID-19 test results. (Id.) Only when a negative test was received was the inmate transferred to general population housing. (Id.) New inmates who declined testing were quarantined for 10 to 14 days before they were housed. (Id.) If an inmate tested positive for COVID-19, that person was removed to a designated area and any housing areas where that inmate had been housed during the infectious period were designated as Asymptomatic Exposed (AE) units and offered subsequent rounds of testing. (Id. ¶¶ 48-50.)
DOC painted social distancing cues on chairs and benches in dayroom and intake areas in order to help individuals understand and maintain safe distance from one another in communal spaces. (Defs.' SOF ¶ 31.) In January 2021, CHS began offering the COVID-19 vaccine to incarcerated individuals. (Id. ¶ 47.)
PROCEDURAL HISTORY
Plaintiff filed his Complaint on February 18, 2021. On May 18, 2021, Judge Caproni referred this action to me for general pretrial management. (Order of Ref., ECF No. 7.) On October 20, 2021, Judge Caproni referred this action to me for dispositive motions. (Am. Order of Ref., ECF No. 12.) On January 14, 2022, Defendants filed an Answer to the Complaint. (Answer, ECF No. 22.) Following discovery, on February 7, 2023, Defendants filed the motion for summary judgment that is now before the Court on, along with their supporting papers. (Mot. Summary J.; Defs.' Mem., ECF No. 46; Alexander Decl., ECF Nos. 43 & 44; Defs.' SOF.) Plaintiff filed his opposition on March 29, 2023. (Zelenetsky Decl., ECF No. 51.) Defendants filed their rely on April 19, 2023. (Defs.' Reply, ECF No. 52.)
Defendants filed two versions of the Alexander Declaration, together with its exhibits. The version filed at ECF No. 43 was filed under seal since it included Exhibit B, which contains CHS records pertaining to Plaintiff's medical condition. By separate Order, the Court will grant Defendants' Letter Motion to Seal. (Defs.' 2/7/23 Ltr. Mot., ECF No. 41.)
LEGAL STANDARDS
I. Rule 56
Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). The moving party has the initial burden of demonstrating the absence of a disputed issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 321-23 (1986). A dispute concerning material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (quoting Anderson, 477 U.S. at 248). A disputed fact is “material” only if it “might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248. In making its determination, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Id. at 255.
II. Section 1983
To state a claim under Section 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a ‘state actor.'” Griffin v. Corporation Counselet al., No. 22-CV-08521 (LTS), 2022 WL 16926117, at *2 (S.D.N.Y. Nov. 14, 2022) (citing West v. Atkins, 487 U.S. 42, 48-49 (1988)). The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. The Eighth Amendment requires that prion officials provide humane conditions of confinement and take reasonable measures to guarantee the safety of inmates in their custody. See Farmer v. Brennan, 511 U.S. 825, 832-34 (1994). “The failure to protect a prisoner constitutes cruel and unusual punishment when correction officials exhibit ‘deliberate indifference' to a substantial risk of serious harm to the prisoner.” Vazquez v. City of New York, No. 21-CV-01573 (PAE), 2021 WL 1966397, at *6 (S.D.N.Y. May 17, 2021) (quoting Farmer, 511 U.S. at 828).
Because Plaintiff asserts that he is a “convicted and sentenced ‘state ready' inmate” (Compl. at p. 5), the Court analyzes his claim under the Eighth Amendment, rather than pursuant to the Due Process Clause of the Fourteenth Amendment, which governs similar claims brought by pretrial detainees. See Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017).
“Deliberate indifference claims include an objective component and a subjective component.” Vazquez, 2021 WL 1966397, at * 5 (citing Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)). “Under both the Eighth and Fourteenth Amendments, to establish an objective deprivation, ‘the inmate must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health.'” Darnell, 849 F.3d at 30 (citation omitted). To establish the subjective element under the Eighth Amendment, “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837; see also Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (“Deliberate indifference requires more than negligence, but less than conduct undertaken for the very purpose of causing harm.”). In order for a prison official to act with deliberate indifference, he must know of and disregard an excessive risk to an inmate's health or safety. See Hathaway, 37 F.3d at 66.
Further, “a defendant in a § 1983 action may not be held liable for damages for constitutional violations merely because [he or she] held a high position of authority.” Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). Instead, “the plaintiff must directly plead and prove that ‘each Government-official defendant, through the official's own individual actions, has violated the Constitution.'” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 676); see also Boley v. Durets, 687 Fed.Appx. 40, 41 (2d Cir. 2017) (“As a fundamental prerequisite to establishing a § 1983 claim, a plaintiff must show the defendants' personal involvement in the alleged constitutional violation.”) “Assertions of personal involvement that are merely speculative are insufficient to establish a triable issue of fact.” Tarrant, 2022 WL 17070062, at *4 (citing Keesh v. Quick, No. 19-CV-08942, 2022 WL 2160127, at *9 (S.D.N.Y. June 15, 2022)).
DISCUSSION
Defendants first argue that they should be granted summary judgment because Plaintiff failed to exhaust his administrative remedies. (Defs.' Mem. at 10-12.) Defendants also argue that Plaintiff's claim fails on the merits. (Id. at 12-23.)
I. Failure To Exhaust Administrative Remedies
Defendants argue that they are entitled to summary judgment because Plaintiff has failed to exhaust his administrative remedies as provided by the Prison Litigation Reform Act (“PLRA”). (See Defs.' Mem at 10-12.) The Court agrees.
The PLRA states “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This action falls within the purview of this provision as the Supreme Court has established “[t]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes[.]” Porter v. Nussle, 534 U.S. 516, 532 (2002); see also 18 U.S.C. § 3626(g)(2) (defining the term “civil action with respect to prison conditions” to mean “any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison[.]”).
“As the Supreme Court and Second Circuit have instructed, ‘proper exhaustion . . . means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).'” Ortiz v. Annucci, No. 17-CV-03620 (RJS), 2019 WL 1438006, at *8 (S.D.N.Y. Mar. 29, 2019) (quoting Hernandez v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009)); see also Ford v. Aramark, No. 18-CV-02696 (NSR), 2020 WL 377882, at *4 (S.D.N.Y. Jan. 23, 2020) (“[T]o satisfy the exhaustion requirement, an inmate must use all available administrative mechanisms, including appeals, through the highest level for each claim.”) (internal quotation marks omitted).
The procedure for exhaustion is not defined by the PLRA, but rather by the rules of the facility in which the inmate-plaintiff is incarcerated. See Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009). “Because failure to exhaust is an affirmative defense . . . defendants bear the initial burden of establishing, by pointing to legally sufficient source[s] such as statutes, regulations, or grievance procedures, that a grievance process exists and applies to the underlying dispute[.]” Hubbs v. Suffolk Cnty Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015) (internal quotation marks omitted). If the defendants satisfy this initial burden, it is then up to the plaintiff to “demonstrate that other factors . . . rendered a nominally available procedure unavailable as a matter of fact.” Id. “Exhaustion, even where the facts are disputed, is a matter of law for the Court to decide.” Brooks v. Mullen, No. 14-CV-06690 (FPG), 2020 WL 6158614, at *5 (W.D.N.Y. Oct. 21, 2020); see also Ortiz, 2019 WL 1438006, at *9 (“factual disputes related to administrative exhaustion are properly resolved by the Court rather than a jury”) (citing Messa v. Goord, 652 F.3d 305, 309 (2d Cir. 2011)).
At Rikers Island, which includes VCBC, “grievance procedures are governed by the Inmate Grievance and Request Program (‘IGRP').” Hickman v. City of New York, No. 20-CV-04699 (RA) (OTW), 2021 WL 3604786, at *3 (S.D.N.Y. Aug. 12, 2021).Courts in this Circuit routinely take judicial notice of the IGRP. See Hickman, 2021 WL 3604786, at *3. “The IGRP applies to ‘[a]ny inmate who is directly and personally affected by an issue, condition, practice, service, or lack of an accommodation with regard to any issue that may arise in connection with their incarceration or action relating to their confinement.'” Massey v. City of New York, No. 20-CV-05665 (GBD) (DF), 2021 WL 4943564, at *7 (S.D.N.Y. Aug. 30, 2021) (alteration in original).
See also Defs.' SOF ¶¶ 71-74.
“The IGRP involves four steps: 1) submission of a complaint for informal resolution; 2) in the event an informal resolution is not reached within five days, request of a formal hearing; 3) appeal to the commanding officer; and 4) appeal to the Central Office Review Committee.” Hickman, 2021 WL 3604786, at *3; see also N.Y.C. Dep't of Corr., Directive 3376R-A at § V available at https://www1.nyc.gov/assets/doc/downloads/directives/Directive3376R-A.pdf (last accessed May 18, 2023). “The inmate must take each of the four steps to exhaust the administrative grievance process.” Sanders v. City of New York, No. 16-CV-07426 (PGG), 2018 WL 3117508, at *4 (S.D.N.Y. June 25, 2018).
During his deposition, Plaintiff testified that he did not file a grievance related to the allegations set forth in the Complaint. (Defs.' SOF ¶ 75; see also Pl.'s Tr., Alexander Decl. Ex. E, ECF No. 44-3, at PDF p. 13.) Although Plaintiff testified that he made two complaints to 311 and complaints to Correction Officers (see Pl.'s Tr. at PDF p. 12), that is not sufficient to satisfy the exhaustion requirement. See Massey, 2021 WL 4943564, at *7 (311 call alone is not sufficient to satisfy exhaustion requirement of PLRA). Similarly, “[i]nformal efforts to put prison officials on notice of inmate concerns do not satisfy the exhaustion requirement.” Stevenson v. Quiros, No. 20-CV-01518 (VLB), 2022 WL 1443967, at *11 (D. Conn. May 6, 2022) (citing Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007)). In his opposition papers, Plaintiff states that he filed a timely Notice of Claim. (Zelenetsky Decl. ¶ 33.) However, Plaintiff cites to no authority, and the Court is aware of none, to suggest that filing a Notice of Claim impacts the exhaustion requirement of the PLRA.
Finally, to the extent Plaintiff asks the Court to find “under the totality of the circumstances” that Plaintiff sufficiently exhausted his administrative remedies, the mandatory language of the PLRA “means a court may not excuse a failure to exhaust, even to take [special] circumstances into account.” Ross v. Blake, 578 U.S. 632, 639 (2016). As the Supreme Court explained, the only textual exception to mandatory exhaustion under the PLRA is when an administrative remedy is unavailable. See id. at 642. Here, Plaintiff does not argue that administrative remedies were unavailable and the Court lacks discretion to excuse the failure to exhaust on other grounds. Accordingly, I recommend that Defendants' motion for summary judgment be granted. See Morales v. Brann, No. 20-CV-10126 (VEC) (SDA), 2022 WL 18108561, at *6 (S.D.N.Y. Dec. 15, 2022), report and recommendation adopted, No. 20-CV-10126 (VEC), 2023 WL 35255 (S.D.N.Y. Jan. 4, 2023); Handy v. City of New York, No. 19-CV-03885 (MKV) (OTW), 2021 WL 4482548, at *6 (S.D.N.Y. Aug. 27, 2021), report and recommendation adopted, 2021 WL 4481600 (S.D.N.Y. Sept. 30, 2021) (granting summary judgment for failure to exhaust when there were “neither allegations in the pleadings nor evidence in the record that Plaintiff exhausted his administrative remedies or that such remedies were not available to Plaintiff”).
The Court notes that Plaintiff testified that he did not file a formal grievance because “[t]hey don't take the grievances seriously” and “[t]hey threaten you with other stuff to try to harm you or ship you off like a rag doll.” (Pl.'s Tr. at PDF pp. 13-14.) An administrative remedy may be unavailable “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 578 U.S. at 644. However, the Court finds that Plaintiff's vague testimony regarding threats is insufficient to create a genuine issue of material fact and Plaintiff in opposition to Defendants' summary judgment motion does not argue that there are any issues of fact to determine. (See Zelenetsky Decl. ¶¶ 33-36.)
II. Merits
If the Court adopts my recommendation that Defendants' motion be granted because Plaintiff failed to exhaust administrative remedies, the Court need not address Plaintiff's claim on its merits. See Gil-Cabrera v. City of New York, No. 20-CV-09493 (LTS) (SDA), 2023 WL 2601132, at *6 (S.D.N.Y. Mar. 22, 2023). If the Court does reach the merits of Plaintiff's claim, I also recommend that Defendants' motion for summary judgment be granted.
It is well settled that “correctional officials have an affirmative obligation to protect inmates from infectious disease.” Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996). Moreover, “[i]t is ‘undisputed-and, indeed, by now common knowledge-that COVID-19 is a highly dangerous disease that poses a significant risk of severe illness and death.'” Gil-Cabrera v. Dep't of Corr., No. 20-CV-09493 (LTS) (SDA), 2021 WL 5282620, at *4-5 (S.D.N.Y. Sept. 27, 2021), report and recommendation adopted, 2021 WL 5910055 (S.D.N.Y. Dec. 14, 2021) (quoting James v. Annucci, No. 20-CV-06952 (CJS), 2021 WL 3367530, at *2 (W.D.N.Y. Aug. 3, 2021)); see also Fernandez-Rodriguez v. Licon-Vitale, 470 F.Supp.3d 323, 349 (S.D.N.Y. 2020) (“Put simply, COVID-19 stands with the roster of infectious diseases from which correctional officials have an affirmative obligation to protect inmates.”) (citing Jolly, 76 F.3d at 477) (internal quotation marks omitted). Accordingly, courts have found that “an inmate can face a substantial risk of serious harm in prison from COVID-19 if a prison does not take adequate measures to counter the spread of the virus.” Chunn v. Edge, 465 F.Supp.3d 168, 200 (E.D.N.Y. 2020); see also Caraballo v. Dep't of Corr. City of New York, No. 22-CV-00971 (JLR), 2022 WL 16555313, at *4 (S.D.N.Y. Oct. 31, 2022) (“under certain circumstances, an inmate's exposure to COVID-19 could ‘pose an unreasonable risk of serious damage to his health,' thereby satisfying the objective prong”) (quoting Shomo v. Dep't of Corr. & Cmty. Supervision, No. 21-CV-00128 (PMH), 2022 WL 1406726, at *12 (S.D.N.Y. May 4, 2022)). The relevant inquiry is whether a petitioner has shown a substantial risk of serious harm from COVID-19 at a correctional facility in light of the countermeasures that the facility has in place. See Chunn, 465 F.Supp.3d at 201.
Here, the Court need not decide whether there is a genuine issue of material fact as to the objective prong, however, because Plaintiff cannot satisfy the subjective prong. In his Complaint, Plaintiff alleges Brann and Yang both were aware that his dormitory did not meet social distancing or capacity guidelines (Compl. at p. 5), but in opposing summary judgment, he has not presented any evidence to support this allegation. In his opposition, Plaintiff further asserts that Defendants failed to follow policies regarding screening and separation of inmates with increased risk of complications from COVID-19, such as himself, and failed to follow policies regarding cleaning and sanitizing measures and mask-wearing by staff and inmates. (See Zelenetsky Decl. ¶¶ 1, 12-24.) However, Plaintiff has not presented any evidence that Brann or Yang were aware that these policies were not being followed. See Farmer, 511, U.S. at 837 (“a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety”).
Moreover, Plaintiff has not presented any evidence that Brann or Yang personally were involved in the alleged violations. Accordingly, I recommend that Defendants' motion be granted with respect to Plaintiff's conditions of confinement claim against Defendants in their individual capacities. See Tangreti, 983 F.3d at 618 (liability exists only where the “defendant, through the official's own individual actions, has violated the Constitution”); cf. Shomo, 2022 WL 1406726, at *7-8 (dismissing § 1983 claims for lack of personal involvement) (citing cases); Gibson v. State of New York et al., No. 21-CV-04251 (GHW), 2021 WL 4267683, at *1-2 (S.D.N.Y. Sept. 20, 2021) (dismissing § 1983 claims against DOC supervisors alleging deliberate indifference to serious risk of contracting COVID-19 when complaint lacked facts about how supervisory officials were personally involved in alleged violations).
I also recommend that Defendants' motion be granted with respect to Plaintiff's claims against Defendants in their official capacities. Official capacity claims are equivalent to claims “against the entity of which an officer is an agent[.]” Crosby v. Petermann, No. 18-CV-09470 (JGK), 2020 WL 1434932, at *4 (S.D.N.Y. Mar. 24, 2020) (citing Kentucky v. Graham, 473 U.S. 159, 16566 (1985)). Because Plaintiff has failed to establish that his constitutional rights have been violated, he cannot prevail on a claim for municipal liability. See Vickers-Pearson v. City of New York, No. 18-CV-08610 (KPF), 2020 WL 5732028, at *9 (S.D.N.Y. Sept. 24, 2020) (“there can be no municipal liability without an underlying constitutional violation”) (granting summary judgment). Moreover, Plaintiff has not alleged, let alone presented evidence to establish, an official policy or custom that caused him to be subjected to the denial of a constitutional right. See Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978); see also Clay v. Bishop, No. 22-CV-00983 (GTS) (ML), 2023 WL 3352903, at *6 (N.D.N.Y. Feb. 7, 2023), report and recommendation adopted, 2023 WL 2910545 (N.D.N.Y. Apr. 12, 2023) (“In an official capacity suit against a municipal employee, a plaintiff must show that the acts were performed pursuant to a policy or custom.”) (citing Patterson v. Cnty. of Oneida, 375 F.3d 206, 226 (2d Cir. 2004)).
CONCLUSION
For the foregoing reasons, I respectfully recommend that Defendants' motion for summary judgment be GRANTED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Any requests for an extension of time for filing objections must be addressed to Judge Caproni.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).