Stinson v. The City of New York

Full title: AVION STINSON, Plaintiff, v. THE CITY OF NEW YORK, et al., Defendants.

Court: United States District Court, Southern District of New York

Date published: Jul 6, 2021

18-CV-0027 (LAK)(BCM) (S.D.N.Y. Jul. 6, 2021)

Opinion

18-CV-0027 (LAK)(BCM)

07-06-2021

AVION STINSON, Plaintiff, v. THE CITY OF NEW YORK, et al., Defendants.

BARBARA MOSES UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

BARBARA MOSES UNITED STATES MAGISTRATE JUDGE

TO THE HON. LEWIS A. KAPLAN

Plaintiff Avion Stinson filed this action on January 2, 2018, asserting claims against the City of New York (City); three high-ranking officials of the City's Department of Corrections (DOC) - former Commissioner Joseph Ponte, former Chief of Department Martin Murphy, and former Deputy Commissioner Michael Blake (the Supervisory Defendants); and various DOC Correction Officers, including three who were served and appeared in this action - Stanley Ambrose, Reginald Rothwell, and Gregory Lopez (the CO Defendants). Plaintiff's claims arise from a series of incidents on July 17, 2015, while she was detained at the Rikers Island jail complex. In her Amended Complaint (Am. Compl.) (Dkt. No. 33), plaintiff alleges that the Supervisory Defendants and the CO Defendants violated her constitutional rights under the First, Fourth, and Fourteenth Amendments by using excessive force, retaliating against her for complaining about unconstitutional practices, and denying her medical attention; and that the CO Defendants violated her constitutional rights under the Equal Protection Clause, as well as the New York State and City Human Rights Laws, because their conduct was motivated by animus on the basis of her sex, gender, and sexual orientation. Am. Compl. ¶¶ 61-77.¹ Plaintiff further alleges that the City is liable to her because it "permitted, tolerated, and was deliberately indifferent to" a pattern and practice of unconstitutional abuse at Rikers Island. Id. ¶ 79.

1 Plaintiff identifies as transgender, Am. Compl. ¶ 54, and has referred to herself throughout this litigation as Ms. Stinson. The Court follows suit. However, while at Rikers Island, plaintiff was housed in units designated for males, including the George Motchan Detention Center (GMDC). On June 22, 2015, the Prisoner's Rights Project of the Legal Aid Society sent an email to the DOC asserting that "Mr. Stinson is a homosexual inmate who reports being subjected to continuous harassment from both inmates and officers" and requesting that plaintiff, who was then housed at GMDC, "be transferred to protective custody in another facility where other gay inmates are housed." (Dkt. No. 107.) The underlying records from Rikers Island consistently refer to plaintiff as "Mr. Stinson."

On March 6, 2020, defendants moved for summary judgment on all claims. (Dkt. No. 121.) For the reasons that follow, I recommend that the motion be granted as to CO Ambrose, the Supervisory Defendants, and the City. As to COs Rothwell and Lopez, I recommend that the motion be granted in part and denied in part.

I. BACKGROUND

A. Facts

The following facts, which unless otherwise noted are undisputed, are taken from (i) Defendants' Statement of Undisputed Facts Pursuant to Local Civil Rule 56.1 (Def. 56.1 St.) (Dkt. No. 123); (ii) the underlying evidentiary materials, which are attached to the Declaration of Daniel Saavedra (Saavedra Decl.) (Dkt. No. 125), including plaintiff's complete deposition transcript (Pl. Dep. Tr.) (Saavedra Decl. Ex. A), portions of plaintiff's medical records from Rikers Island (id. Ex. B), and video footage from Rikers Island security cameras (id. Ex. C; Dkt. No. 150); (iii) plaintiff's declaration, dated May 13, 2020 (Pl. Decl.) (Dkt. 137), submitted in opposition to defendants' motion; (iv) additional video footage showing one of the alleged assaults on plaintiff, which neither side formally submitted in connection with the present motion but which plaintiff refers to and relies on in her deposition testimony and elsewhere (Dkt. No. 150); and (v) certain records and photographs submitted by plaintiff as exhibits to a document entitled "Evidence in Support of this Case in Support of Local Rule 56.2" (Pl. Evid. in Supp.) (Dkt. Nos. 106, 107.)

On July 17, 2015, plaintiff was a pre-trial detainee housed at GMDC. Def. Rule 56.1 St. ¶ 1. During morning recreation, plaintiff experienced chest pains and was taken to the GMDC medical clinic. Id. ¶¶ 2-3; Pl. Dep. Tr. at 57:2-8. The clinic took her vitals, and finding nothing wrong, released her. Pl. Dep. Tr. at 57: 9-12. Officer Rothwell then escorted plaintiff from the clinic to the intake unit, where plaintiff believed she was going to be beaten by other inmates in retaliation for complaints she had recently made to "Prisoner's Rights" about CO Ambrose and others. Def. Rule 56.1 St. ¶¶ 4-5; Pl. Dep. Tr. at 57:14-58:2; Pl. Decl. at ECF page 3.²

2 At deposition, plaintiff explained that her complaints had resulted in CO Ambrose being suspended for making "racial comments towards me." Pl. Dep. Tr. at 59:6-24. Plaintiff further testified that on July 16, 2015 (by which time Ambrose had "come off suspension"), he told her that "these things were going to happen on the 17th." Id. at 59:9; 65:2-10; see also Pl. Decl. at ECF page 3 (plaintiff was "threatened that it would happen by Officer Ambrose" on July 16, 2015). Defendants have neither confirmed nor denied the alleged disciplinary action against CO Ambrose. However, it is undisputed that Ambrose was not present for any of the incidents that took place on July 17, 2015. Def. Rule 56.1 St. ¶ 36; Pl. Dep. Tr. at 99:23-25, 101:19-21.

1. The Intake Unit - Morning Incident

Upon arriving at the intake unit, shortly before 9:00 a.m., plaintiff overheard other inmates in the "pen" talking about assaulting someone and - fearing for her personal safety - refused to enter the intake holding cell. Def. Rule 56.1 St. ¶¶ 6-7; Pl. Dep. Tr. at 61:7-12. Officer Rothwell, joined by a female DOC captain, explained to plaintiff that she had to go through intake because she had been removed from "mental health housing," did not qualify for protective custody, and had to go to "GP" (general population). Def. Rule 56.1 St. ¶¶ 8-9; Pl. Dep. Tr. at 67:10-14. Plaintiff resisted being taken into the holding cell, compelling the officers, now numbering four or five (including Rothwell and Lopez), to carry her. Def. Rule 56.1 St. ¶¶ 10-11; Pl. Dep. Tr. at 68:4-7, 11-15. As the officers approached the holding cell, plaintiff grabbed the leg of a nearby table and refused to let go. Def. Rule 56.1 St. ¶ 12; Pl. Dep. Tr. at 68:8-10, 71:14-21. After gentler attempts to dislodge her failed, Officer Lopez twice deployed pepper spray on plaintiff, each time for about two seconds. Def. Rule 56.1 St. ¶ 13; Saavedra Decl. Ex. C; Pl. Dep. Tr. at 69:24-70:1, 72:2-5. Plaintiff continued to hold on, letting go of the table only after the officers flipped it over and "slid me off the leg." Def. Rule 56.1 St. ¶¶ 14-15; Saavedra Decl. Ex. C; Pl. Dep. Tr. at 72:21-24.³

3 The summary judgment record includes video footage (lodged with the Clerk of Court under seal) which clearly captures this incident from two angles.

Once removed from the leg of the table, plaintiff was placed on a stretcher. Def. Rule 56.1 St. ¶ 16; Pl. Dep. Tr. at 73:2-4, 22-23. At that point - while still in the intake unit - plaintiff states that she was assaulted by three to five officers who punched her in her face and chest with closed fists for about two minutes, which "knocked out my teeth." Def. Rule 56.1 St. ¶ 17; Pl. Dep. Tr. at 73:9-21, 75:2-5. However, plaintiff could not see which officers were punching her because of the pepper spray in her eyes. Def. Rule 56.1 St. ¶ 18; Pl. Dep. Tr. at 74:16-21.⁴

4 The video footage shows plaintiff being placed on a wheeled stretcher in the intake unit. It also shows plaintiff heaving herself off the stretcher, landing on the floor, being placed back on the stretcher, and then attempting to bite one of the correction officers as they restrain her. The video does not show any officers punching plaintiff in the face (or elsewhere). At deposition, plaintiff testified that defendants "didn't turn in that part of the video." Pl. Dep. Tr. at 77:16-17.

2. The GMDC Clinic

Following this alleged assault, several officers escorted plaintiff back to the GMDC clinic. Def. Rule 56.1 St. ¶ 20; Pl. Dep. Tr. at 75:7-10, 16-17, 77:5-11. According to plaintiff, the nurses at the clinic refused to treat her because she had too much pepper spray on her body. Def. Rule 56.1 St. ¶ 21; Pl. Dep. Tr. at 77:23-78:1. Instead of taking her to wash off the pepper spray, the officers left her on the stretcher in a clinic hallway. Def. Rule 56.1 St. ¶ 22; Pl. Dep. Tr. at 78:214.

While she was lying on the stretcher in the hallway, plaintiff states that she was again assaulted by unidentified correction officers, who punched her in the chest with closed fists for three or four minutes. Def. Rule 56.1 St. ¶¶ 22-23; Pl. Dep. Tr. at 75:24-76:3, 79:2-13. Plaintiff kept her eyes closed during this attack because she still had pepper spray in her eyes. Def. Rule 56.1 St. ¶ 24; Pl. Dep. Tr. at 79:3-4. According to plaintiff, the officers kept punching and hitting her until she acted like she was dead, at which point they left. Pl. Dep. Tr. at 79:3-13.

Plaintiff then noticed an open bathroom door. Def. Rule 56.1 St. ¶ 25; Pl. Dep. Tr. at 76:810, 79:14-16. Although her hands were cuffed behind her back and her feet were attached to the stretcher, plaintiff made her way to the bathroom to wash the pepper spray out of her eyes. Def. Rule 56.1 St. ¶ 26; Pl. Dep. Tr. at 76:12-15, 79:18-19. Because she was dragging the stretcher with her as she moved, her approach to the bathroom attracted the attention of COs Rothwell and Lopez, who entered the bathroom and, according to plaintiff, started hitting and kicking her. Def. Rule 56.1 St. ¶ 26-27; Pl. Dep. Tr. at 76:10-13, 18-22; 80:4-6, 82:7-12.

Following this second alleged assault inside the clinic, plaintiff waited for "a whole shift" before anyone gave her medical attention. Def. Rule 56.1 St. ¶ 28; Pl. Dep. Tr. at 80:7-14, 21-24, 82:14-19; see also Pl. Decl. at ECF page 3 ("I was denied any proper medical evaluation or attention."). According to plaintiff, her arms, hands, and face were bleeding; her right eyebrow was "gashed open"; and she had broken teeth, a black eye, and a "boot print on the side of my face which didn't go away for a week." Pl. Dep. Tr. at 80:25-81:16. The clinic doctor "recorded everything" but the medical staff "didn't do anything" other than take her vitals. Id. at 80:24, 81:11, 82:18-19. Plaintiff's testimony is at odds with the clinic's records, which reflect that she was treated at 11:53 a.m. by physician's assistant (PA) Esperance Ndayishimiye, who, in addition to taking her vitals, noted "NO VISIBLE SIGN OF INJURY." Def. Rule 56.1 St. ¶¶ 29-30; Saavedra Decl. Ex B, at ECF pages 23-24.⁵

5 There is no video footage of the alleged assaults inside the clinic. Plaintiff explained at deposition that there are "no cameras" in that location, enabling Rothwell and Lopez to "have fun with me." Pl. Dep. Tr. at 78:19-20.

3. The Intake Unit - Afternoon Cell Extraction

After being seen at the clinic, plaintiff was taken back to intake and placed in a cell, in handcuffs. Def. Rule 56.1 St. ¶ 31; Pl. Dep. Tr. at 83:23-24. Plaintiff called out for medical treatment and continued to complain about the pepper spray on her body, Pl. Dep. Tr. at 84:2385:3, until the (unidentified) captain on duty threatened to beat her if she kept yelling and screaming. Id. at 84:4-12. When the new shift started in the afternoon, a group of officers came into the cell, wearing "combat vests," to perform a cell "extraction." See Pl. Dep. Tr. at 86:7-21, 110:1-9; Saavedra Decl. Ex. B, at ECF page 19. According to plaintiff, these officers "were beating me up," "punching me with closed fists in my face, choking me," with "their hands over my face so I couldn't scream," "pulling my hair," and "kicking me in the head. Def. Rule 56.1 St. ¶¶ 32-33; Pl. Dep. Tr. at 85: 6-10, 87:8-13. During this episode, plaintiff states, the officers "cracked [her] jaw," broke her teeth, and left a boot print across her face. Pl. Dep. Tr. at 87:20-88:3.

None of the CO Defendants was physically present during the extraction, which began at approximately 4:15 p.m. on July 17. Def. Rule 56.1 St. ¶¶ 34-36; Pl. Dep. Tr. at 101:19-21, 110:19. Moreover, plaintiff's testimony is markedly at odds with the video record of the extraction, which begins with Captain Edwin Skepple stating that the "anticipated use of force" was authorized because plaintiff had refused to leave the main intake unit to be transported to "C-71" for a mental health evaluation.⁶ The video then shows plaintiff repeatedly refusing to leave the cell or follow other CO directions. Told to "get up" from the bench she was on for transport to C-71, plaintiff repeatedly stated, "I'm not going," while remaining seated, accusing the officers of knocking her teeth out, and demanding the return of her "gold tooth" and (unspecified) property. Told again to "stand up," plaintiff instead sat on the floor of the cell, locking her legs under the bench. After plaintiff refused several additional orders to stand up, the officers entered the cell, removed her from the bench, dressed her (she had no pants on), put a spit hood on her head, placed her on a wheeled stretcher, and transported her back to the GMHC clinic.⁷

6 The video footage of the cell extraction, which was taken by a member of the extraction team using a handheld video camera, was produced in discovery and initially submitted to the Court in 6 connection with a judicially supervised settlement conference that took place on September 11, 2018. Plaintiff never formally re-submitted the extraction footage in opposition to defendants' summary judgment motion. However, she repeatedly refers to that video in her deposition testimony, stating that the beating she received during the extraction was "on camera," Pl. Dep. Tr. at 85:13, and that "if you look at the video I cooperated with everything they said to do respectfully and you all still beat the shit out of me." Id. at 86:9-11; see also id. at 108:17-109:8 ("If you look at the video its clear as [to] what they said . . . I followed [their] direct orders."). I conclude from this that plaintiff believes that the extraction video is in the record for summary judgment purposes and intends to rely on it in opposition to defendants' motion. Mindful of the "special solicitude" that "should be afforded pro se litigants generally, when confronted with motions for summary judgment," Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988), I have lodged the extraction video with the Clerk of Court under seal and treated it, in accordance with plaintiff's intent, as part of the summary judgment record.

7 The video footage does not show the officers punching or kicking plaintiff's face, choking her, or pulling her hair during the extraction. However, the camera operator did not always have a clear view of plaintiff's head. At deposition, plaintiff stated that "they turned the camera towards my feet while they were beating up my head." Pl. Dep. Tr. at 86:12-13.

At the clinic, plaintiff was examined by PA Scott Parks, who took her vitals at 4:55 p.m. Def. Rule 56.1 St. ¶ 37; Pl. Dep. Tr. at 88:20-89:3; Saavedra Decl. Ex. B, at ECF pages 19-20. Plaintiff told Parks that her front tooth "was knocked out during the extraction." Saavedra Decl. Ex. B, at ECF page 19. Parks observed that plaintiff had a bruise on her right eyelid, for which she was given ice; irrigated her eyes, because she complained of burning; and noted that plaintiff was missing an upper central incisor (front tooth) and that another incisor was broken, but that there was no active bleeding and the mandible (jaw) was "nontender." Id. at ECF pages 19-20. According to plaintiff, Parks recommended X-rays, but the officers refused to take her because they had orders to transfer her to another facility. Pl. Dep. Tr. at 90:8-20, 91:8-13. The clinic's records do not reflect this alleged exchange.

4. Post-July 17 Medical Treatment

Following her afternoon visit to the clinic, plaintiff was taken to another housing unit, the Anna M. Kross Center (AMKC), where she alleges that a "Captain Thompson" (not named as a defendant herein) placed her in a holding cell and left her there for two days. Def. Rule 56.1 St. ¶ 41; Pl. Dep. Tr. at 93:1-3, 16-19. From there, plaintiff was moved to the C-71 mental health unit, also known as Hart Island, where she says she was left in an intake cell for five additional days with no medical attention. Def. Rule 56.1 St. ¶¶ 42, 44; Pl. Dep. Tr. at 94:23-25, 96:21-25. Plaintiff asserts that she waited a total of eight days before she received any treatment for the injuries suffered on July 17, 2015. Def. Rule 56.1 St. ¶ 44; Pl. Dep. Tr. at 83:3-5, 87:5-7. However, her medical records show that she was seen by medical staff at the AMKC clinic on July 19, July 21, and July 23, 2015. Def. Rule 56.1 St. ¶ 45; Saavedra Decl. Ex. B, at ECF pages 5-15.⁸

8 The July 19 visit was in connection with plaintiff's referral to "MO" (mental health observation) housing. Nurse Practitioner Stephanie English assessed plaintiff with schizoaffective disorder, bipolar type, and antisocial personality disorder, and continued plaintiff's prescriptions for Zoloft and Risperdal. Saavedra Decl. Ex. B, at ECF pages 12-14. At the July 21 visit, plaintiff complained that hot water was splashed on her body as a result of an "inmate-on-inmate fight," but denied that she was injured. Id., at ECF page 8. No blisters were noted. Id., at ECF page 9. The reason for the July 23 visit was another "injury report" resulting from an inmate-on-inmate fight, but plaintiff once again denied that she was injured, "nor assaulted by anyone," and no visible injuries were noted. Id. at ECF page 5.

The July 19, July 21, and July 23 records do not reflect any complaint by plaintiff about the events of July 17, 2015. However, on July 30, 2015, plaintiff "made an allegation that [she] was assaulted by DOC staff on July 17, 2015, causing injury." Pl. Evid. in Supp. Ex. C, at ECF page 12. The resulting "Injury to Inmate" report, signed by correctional staff, medical staff, and plaintiff, recites that no injury was noted "visually on head, neck, chest [or] abdomen," and that plaintiff refused treatment. Id.⁹ Photographs of plaintiff's head and face dated July 30, 2015, show no visible injuries. Id. Ex. A, at ECF pages 25, 34-35, 37.¹⁰ Photographs of her mouth, also dated July 30, 2015, show multiple teeth missing, broken, and/or decayed, including a missing upper front tooth. Id., at ECF pages 26-28, 30-33. On October 1, 2015, a Rikers Island dentist, with plaintiff's consent, extracted three "painful, abscessed, and grossly carious" teeth. Id. Ex. B, at ECF page 20. The extracted teeth (#3, #13, and #14) are all still visible in the July 30 photographs. Pl. Evid. in Supp. Ex. A, at ECF pages 26-28, 30-33.

9 This document, like others filed by plaintiff on September 16 and 17, 2019, as exhibits to her "Evidence in Support" submission, is unauthenticated. See Pl. Evid. in Supp. at ECF pages 3-7. However, in light of the "special solicitude" due to pro se litigants, Graham, 848 F.2d at 344, I have reviewed all of those exhibits and treated them as documentary evidence proffered in opposition to the present summary judgment motion.

10 Plaintiff states that this is because the photographs were "falsified," having actually been taken on October 1, 2015, after the injuries healed. Pl. Evid. in Supp at ECF pages 4-5.

B. Procedural History

Plaintiff filed this action, through counsel, on January 2, 2018. Her original Complaint named the City, the Supervisory Defendants, and COs Ambrose, Rothwell, and Lopez as defendants, and alleged that she was subjected to "a relentless campaign of harassment and violence at the hands of correction officers and fellow inmates" that "reached a crescendo on July 17, 2015, when throughout the day multiple correction officers beat [her] multiple times, in multiple locations within Riker's Island." Compl. (Dkt. No. 6) ¶¶ 57-59. In her first claim, asserted pursuant to 42 U.S.C. § 1983, plaintiff alleged that all of the individual defendants violated her constitutional rights under the First, Fourth, and Fourteenth Amendments by using excessive force, retaliating against her for complaining about unconstitutional practices, and denying her medical attention. Compl. ¶¶ 63-67. In her second claim, plaintiff alleged that the City was also liable to her, pursuant to § 1983, because it "permitted, tolerated, and was deliberately indifferent to" a pattern and practice of unconstitutional abuse, including "brutality," retaliation, and denial of medical care, at Rikers Island. Id. ¶¶ 68-71.

On January 19, 2018, the Honorable Lewis Kaplan, United States District Judge, referred this matter to me for general pretrial management and report and recommendation on dispositive motions. (Dkt. No. 8.) The defendants named in the original Complaint answered it on April 23, 2018. (Dkt. No. 23.) On July 10, 2018, following several months of written discovery, plaintiff filed her Amended Complaint, which added eleven additional individual defendants¹¹ and three new claims, alleging that the CO Defendants violated her constitutional rights under the Equal Protection Clause, as well as her rights under the New York State and New York City Human Rights Laws, because their conduct was motived by animus based on plaintiff's sex, gender, and sexual orientation. Am. Compl. ¶¶ 66-77. Additionally, plaintiff expanded her municipal liability claim to allege that the City "permitted, tolerated, and was deliberately indifferent to" a pattern and practice of discrimination on the basis of sex, gender, and sexual orientation. Id. ¶¶ 79-80.

11 The newly named defendants were Amanda Black, Akeem Cardoza, Derek Debianchi, Lawrence Hall, David Haynie, Hope Kirkland, Anthony Lawrence, Trudie Monteforte, Jacob Saldana, Edwin Skepple, and Edwin Stevenson. Am. Compl. ¶ 16.

On July 12, 2018, electronic summonses were issued as to the newly-named individual defendants. (Dkt. No. 37.) On September 11, 2018, I extended the deadline for service of process on those defendants to October 10, 2018. (Dkt. No. 40.)

On September 22, 2018, following the September 11, 2018 settlement conference, plaintiff's counsel moved to withdraw (Dkt. No. 43); in response, plaintiff requested that her counsel "be relieved from this case" for "trying to squeeze me into taking a settlement I don't want." (Dkt. No. 48.) In connection with the withdrawal proceedings, I stayed discovery (Dkt. No. 42), as well as the time for service of the Amended Complaint on the newly-named defendants. (Dkt. No. 47.) On October 15, 2018, I granted counsel's motion to withdraw (Dkt. No. 52), and on October 25, 2018, plaintiff filed a Notice of Pro Se Appearance. (Dkt. No. 57.) On November 26, 2018, I lifted the stay on discovery and service and reminded plaintiff of her responsibility to comply with all of her discovery and other pretrial obligations, including service of process.¹²After several extensions, discovery closed on May 1, 2019. (Dkt. Nos. 87, 90, 91.) However, insofar as the record reflects, plaintiff made no effort to serve the Amended Complaint on any of the defendants first named therein, and none of them has appeared.

12 The Order Lifting Stay (Dkt. No. 63) stated, on page 1: "Plaintiff Stinson is reminded that even though she is proceeding pro se, she must still comply with all of her discovery and other pretrial obligations, including . . . her obligation to effect service of process on the individual defendants first named in the Amended Complaint."

1. Defendants' First Summary Judgment Motion

On July 1, 2019, defendants filed a summary judgment motion, accompanied by a Rule 56.1 statement, a brief, a declaration of counsel, and a Notice to Pro Se Litigant, in accordance with Local Civil Rule 56.2, advising plaintiff of her obligation to "submit evidence" in opposition to the motion. (Dkt. Nos. 94-98.) Instead, after obtaining an extension of time to respond to the motion (Dkt. No. 101), plaintiff filed a 21-page document on August 13, 2019, entitled "As to Violation of Constitutional and Human Rights and of Any and All Law in Support of Plaintiff's Motion for Opposing Summary Judgment," in which she, inter alia, complained about her former attorneys, questioned the integrity of defendants' counsel, accused defendants of tampering with evidence, and listed in conclusory terms the various ways she contends her rights were violated, without identifying any record evidence to support her claims. (Dkt. No. 102.) Along with this document, plaintiff submitted a 4-page, unsigned declaration, recounting some of the events of July 17, 2015 and asserting that the evidence supporting her claims was "corrupted." (Dkt. No. 103.) On August 28, 2019, defendants submitted a reply brief in further support of their initial summary judgment motion. (Dkt. No. 105.)

On September 16, 2019, plaintiff submitted her unsigned "Evidence in Support," naming six witnesses who, she asserted, would support her claims. Pl. Evid. in Supp. at ECF page 6. No witness affidavits were attached. Plaintiff did attach, as Exhibits A-C, various Injury to Inmate reports (id. at ECF pages 9-15)¹³; the dental records reflecting her October 1, 2015 tooth extraction (id. at ECF pages 19-23); and the July 30, 2015 photographs of her face, head and mouth. Id. at ECF pages 25-37). The following day, she submitted an additional Exhibit D (apparently omitted inadvertently the day before), consisting of eight emails and one letter sent by the Legal Aid Society, on her behalf, to various DOC personnel from June through September 2015. (Dkt. No. 107.)¹⁴ On October 7, 2019, I denied defendants' letter-application requesting that I "decline to consider" plaintiff's September 16 and 17 submissions. (Dkt. No. 110.)

13 As relevant here, there are two such reports dated July 17, 2015, corresponding to plaintiff's visits to the GMHC clinic after the morning incident in the main intake unit and the afternoon cell extraction, and consistent with the medical records generated by the clinic and placed into evidence by defendants. Pl. Evid. in Supp. Ex. C, at ECF pages 14, 15. Another report, dated July 21, 2015, corresponds to plaintiff's visit to the AMKC clinic on that date and is consistent with the medical record of that visit placed into evidence by defendants. Id. at ECF page 13. The last relevant Injury to Inmate report is dated July 30, 2015, and - as noted above - documents plaintiffs allegation that she "was assaulted by DOC staff on July 17, 2015, causing injury," id. at ECF page 12, but also states that she "refused medical services" and that the PA who examined her could detect "no injury" to her head, neck, chest, or abdomen. Id.

14 None of the Legal Aid Society communications submitted by plaintiff makes any reference to the events of July 17, 2015.

On January 28, 2020, I issued an order noting that defendants' pending motion was addressed to plaintiff's original Complaint, rather than the operative Amended Complaint. (Dkt. No. 111.) I directed the moving defendants to advise the Court in writing by January 31 whether they wished to stand on their pending motion or withdraw it without prejudice to refiling "a motion addressed to the claims framed by the Amended Complaint." Id. On January 31, 2020, defendants advised that they would withdraw their pending motion and proposed a briefing schedule for the motion they intended to refile, which I adopted. (Dkt. Nos. 112-13.)

2. Defendants' Second Summary Judgment Motion

On March 6, 2020, defendants filed an answer to the Amended Complaint (Dkt. No. 128) and the summary judgment motion which is now before the Court, accompanied by their Rule 56.1 statement; a brief (Def. Mem.) (Dkt. No. 124); the Saavedra Declaration; and a Notice to Pro Se Litigant once again advising plaintiff of her obligation to "submit evidence" in opposition to the motion. (Dkt. No. 122.) Defendants argue that they are entitled to summary judgment because (1) the Supervisory Defendants "were not personally involved in any alleged constitutional violations," Def. Mem. at 5-8; (2) plaintiff's excessive force claims fail as a matter of law, id. at 814, because (a) the use of force during the pepper spray incident was reasonable; (b) no rational juror could believe plaintiff's allegations as to the incident in the clinic bathroom, which is contradicted by clinic records showing that she had no visible injuries thereafter; and (c) plaintiff did not identify any of the three CO Defendants as her assailant in any of the remaining incidents alleged, concedes that that Officer Ambrose was not present for any of them, and further concedes that Officers Rothwell and Lopez were not present for the cell extraction; (3) plaintiff's deliberate indifference claim fails as a matter of law, id. at 14-18, because (a) plaintiff did not suffer a "sufficiently serious injury" to implicate the Constitution; (b) plaintiff concedes that she was given medical treatment on July 17 and her testimony about the lack of treatment thereafter is "directly contradicted by the medical records"; and (c) there is no evidence that any of the individual defendants had any responsibility for plaintiff's medical treatment after July 17; (4) plaintiff's municipal liability claim fails for lack of any underlying constitutional violation and for lack of evidence, id. at 18-27; (5) plaintiff's Equal Protection claim fails for lack of evidence of discriminatory intent on the part of any individual defendant, id. at 27-29; and (6) her state law claims fail with it. Id. at 30-31. In the alternative, defendants request that the Court "decline supplemental jurisdiction" over the state law claims. Id. at 31.

During a telephonic status conference on March 17, 2020, I explained to plaintiff her obligations to respond to the motion on time and with evidence, and directed her to do so by May 8, 2020, "in accordance with Rule 56 of the Federal Rules of Civil Procedure and Local Civil Rule 56.1." (Dkt. No. 132.) Thereafter, plaintiff requested, and I granted, two extensions of her time to respond, ultimately giving her a deadline of July 24, 2020. (Dkt. Nos. 135, 140.)

On various dates in May and June, 2020, plaintiff filed what appears to be an opposing brief (Pl. Mem.) (Dkt. No. 136); two versions of her opposing declaration (Dkt. Nos. 137, 148)¹⁵; three copies of the "Evidence in Support" document first filed on September 16, 2019, without exhibits (Dkt. Nos. 138, 143, 144); and a two-page document entitled Plaintiff's Response [to] Defendants Local Rule 56.2 Notice (Dkt. No. 147), which states that plaintiff had already "submitted evidence in this case sufficient and overwhelming," but does not otherwise respond to defendants' moving papers. On July 24, 2020, defendants submitted a reply brief (Dkt. No. 149), urging the Court to deem their factual assertions and admitted and declare many of plaintiff's claims abandoned.

15 Although the signature line on the fourth page of plaintiff's declaration is missing (Dkt. No. 137) or blank (Dkt. No. 148), plaintiff appears to have signed the first page of each version of the document before a notary public. Mindful of the Court's obligation to read the papers submitted by a pro se litigant "liberally," Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), I have treated this document as I would a signed and sworn affidavit.

II. LEGAL STANDARDS

A. Summary Judgment

A court may grant a motion for summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Holt v. KMI-Cont'l, Inc., 95 F.3d 123, 128-29 (2d Cir. 1996). The moving party bears the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine dispute as to any material fact. Fed.R.Civ.P. 56(c); Celotex, 477 U.S. at 322; Koch v. Town of Brattleboro, 287 F.3d 162, 165 (2d Cir. 2002). In evaluating the record, the court must construe the evidence in the light most favorable to the non-moving party and must draw all reasonable inferences in the non-moving party's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); In re "Agent Orange" Prod. Liab. Litig., 517 F.3d 76, 87 (2d Cir. 2008). "In applying this standard, the court should not weigh evidence or assess the credibility of witnesses. These determinations are within the sole province of the jury." Frost v. New York City Police Dep't, 980 F.3d 231, 242 (2d Cir. 2020) (quoting Hayes v. New York City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996)).

If the moving party meets its initial burden, the burden then shifts to the non-moving party to establish a genuine dispute of material fact. Celotex, 477 U.S. at 322; Beard v. Banks, 548 U.S. 521, 529 (2006); Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001). The non-moving party must present specific, admissible evidence in support of her contention that there is a genuine dispute as to the material facts. Celotex, 477 U.S. at 324; see also Jeffreys v. City of New York, 426 F.3d 549, 553-54 (2d Cir. 2005); D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998) (nonmoving party must offer "some hard evidence showing that its version of the events is not wholly fanciful"). Furthermore, the evidence must be sufficient to permit a reasonable jury to return a verdict in the non-moving party's favor. Anderson, 477 U.S. at 242, 248; Nick's Garage, Inc. v. Progressive Casualty Ins. Co., 875 F.3d 107, 113 (2d Cir. 2017) ("A genuine issue of material fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.") (internal quotation marks omitted). Thus, "conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996).

B. Local Civil Rule 56.1

In Southern District of New York, the moving party must submit a "short and concise statement, in numbered paragraphs," of the material facts that the moving party contends to be undisputed, with citations to the underlying evidence. Local Civil Rule 56.1(a). The non-moving party must then respond in kind, with numbered paragraphs that correspond "to each numbered paragraph in the statement of the moving party." Local Civ. R. 56.1(b). To the extent not "specifically controverted" by the non-moving party, the statement of material facts submitted by the moving party may be "deemed to be admitted for purposes of the motion." Local Civ. R. 56.1(c); see also Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003) ("If the opposing party then fails to controvert a fact so set forth in the moving party's Rule 56.1 statement, that fact will be deemed admitted.").

C. Pro Se Parties

Where, as here, the party opposing summary judgment is proceeding pro se, the court should read her papers "liberally," and "interpret them to raise the strongest arguments that they suggest." Burgos, 14 F.3d at 790 (2d Cir. 1994); see also Mikinberg v. Baltic S.S. Co., 988 F.2d 327, 330 (2d Cir. 1993); Haines v. Kerner, 404 U.S. 519, 520-21 (1972). While "pro se litigants are ‘not excused from meeting the requirements of Local Rule 56.1, '" Diggs v. Volpe, 2013 WL 4015758, at *1 n.1 (S.D.N.Y. Aug. 7, 2013) (quoting Wali v. One Source Co., 678 F.Supp.2d 170, 178 (S.D.N.Y. 2009)), the court has "broad discretion" to "overlook a [pro se] party's failure to comply with local court rules," and may exercise that discretion to "conduct an assiduous review of the record" even where - as here - the pro se party has failed entirely to file a statement complying with Local Civil Rule 56.1(b). Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (quoting Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 292 (2d Cir. 2000)); accord Feelings v. Stukes, 2017 WL 3601241, at *5 n.1 (S.D.N.Y. Aug. 21, 2017); Cain v. Esthetique, 182 F.Supp.3d 54, 63 (S.D.N.Y. 2016), aff'd sub nom. Cain v. Atelier Esthetique Inst. of Esthetics Inc., 733 Fed.Appx. 8 (2d Cir. 2018); Vann v. Fischer, 2014 WL 4188077, at *6 (S.D.N.Y. Aug. 25, 2014).¹⁶

16 I have done so here, carefully reviewing plaintiff's entire deposition transcript, all the pleadings, letters, declarations, and other submissions (sworn and unsworn) that she filed in response to defendants' summary judgment motions, and a series of (unsworn) letters and other submissions that she filed prior to the first summary judgment motion (Dkt. Nos. 58, 59, 92, 93), to determine if there are genuinely contested issues of material fact that defendants have overlooked. I have also looked behind defendants' assertions of uncontested fact, accepting them only if they are supported by citations to admissible evidence. See Holtz, 258 F.3d at 73 (the moving party's "allegations of uncontested fact cannot be deemed true simply by virtue of their assertion in a Local Rule 56.1 statement"); Giannullo, 322 F.3d at 140 (reversing grant of summary judgment to defendants where "the record does not support certain critical assertions in the defendant's Rule 56.1 statement on which the district court relied"); Cain, 182 F.Supp.3d. at 63 (the court "must be satisfied that the citation to evidence in the record supports the moving party's assertions").

The court is not obligated, however, to accept a pro se litigant's factual assertions where they contradict her own previous statements or are otherwise "beyond belief." Shabazz v. Pico, 994 F.Supp. 460, 470 (S.D.N.Y. 1998) (Sotomayor, D.J.) (quoting Dawes v. Coughlin, 964 F.Supp. 652, 657 (N.D.N.Y.1997)), vacated on other grounds by 205 F.3d 1324 (2d Cir. 2000). Nor need the court accept testimony which is so "blatantly contradicted" by the video evidence "that no reasonable jury could believe it." Scott v. Harris, 550 U.S. 372, 380 (2007).

D. Section 1983

Section 1983 permits civil suits against those who, acting "under color" of state law, have deprived the plaintiff of "any rights, privileges, or immunities secured by the Constitution" or laws of the United States. 42 U.S.C. § 1983. "Section 1983 does not create any federal rights; rather, it provides a mechanism to enforce rights established elsewhere." Soberanis v. City of New York, 244 F.Supp.3d 395, 400 (S.D.N.Y. 2017) (citing Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002)). To state a claim under § 1983, "a plaintiff must allege that (1) the defendant was a state actor, i.e., acting under color of state law, when he committed the violation and (2) the defendant deprived the plaintiff of 'rights, privileges or immunities secured by the Constitution or laws of the United States.'" Milan v. Wertheimer, 808 F.3d 961, 964 (2d Cir. 2015) (citation omitted). Plaintiff Stinson seeks damages pursuant to § 1983 on four distinct theories: (1) that defendants violated the Fourth and Fourteenth Amendments by using excessive force against her on July 17, 2015; (2) that they violated the Due Process Clause of the Fourteenth Amendment by denying her adequate medical care on that date and for eight days thereafter; (3) that they violated the First and Fourteenth Amendments by mistreating her in retaliation for complaints she previously made about her treatment at Rikers Island; and (4) that the CO Defendants violated the Equal Protection Clause, because their misconduct was motivated by animus on the basis of her sex, gender, and sexual orientation. Am. Compl. ¶¶ 61-77.

1. Excessive Force

To prevail on an excessive force claim against jail officials, a pretrial detainee must show that the use of force was deliberate and that the degree of force used was "objectively unreasonable" under the circumstances, taking into account the "facts and circumstances of each particular case," and viewing the issue "from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight." Kingsley v. Hendrickson, 576 U.S. 389, 395-97 (2015) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). Factors bearing on whether the use of force was reasonable or unreasonable include "the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting." Kingsley, 576 U.S. at 397. "The factfinder must also "take account of the legitimate interests in managing a jail, acknowledging as part of the objective reasonableness analysis that deference to policies and practices needed to maintain order and institutional security is appropriate." Frost, 980 F.3d at 252 (quoting Kingsley, 576 U.S. at 2474). "Additionally, an officer enjoys qualified immunity and is not liable for excessive force unless he has violated a 'clearly established' right, such that 'it would [have been] clear to a reasonable officer that his conduct was unlawful in the situation he confronted.'" Kingsley, 576 U.S. at 400 (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).

2. Deliberate Indifference

Claims by pretrial detainees for inadequate medical care are analyzed under the Due Process Clause using a "two-pronged standard," Lloyd v. City of New York, 246 F.Supp.3d 704, 717 (S.D.N.Y. 2017), to determine whether the defendant officials were "deliberately indifferent" to the detainee's "serious medical needs." Id. at 718. First, the plaintiff must show that the alleged deprivation of medical care was "sufficiently serious in the sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exists." Yancey v. Robertson, 828 Fed.Appx. 801, 803 (2d Cir. 2020) (summary order) (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal quotation marks omitted). Second, the plaintiff must show that the defendant official "'knew, or should have known' that his or her conduct 'posed an excessive risk to health or safety.'" Lloyd, 246 F.Supp.3d at 719 (quoting Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017)). See also Charles v. Orange Cty., 925 F.3d 73, 86 (2d Cir. 2019) ("in Darnell, we clarified that deliberate indifference, in the context of a Fourteenth Amendment due process claim, can be shown by something akin to recklessness, and does not require proof of a malicious or callous state of mind.").

3. Retaliation

To prevail on a First Amendment retaliation claim, "a prisoner must show (1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action." Dolan v. Connolly, 794 F.3d 290, 294 (2d Cir. 2015) (quoting Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)); see also Gomez v. Cty. of Westchester, 649 Fed.Appx. 93, 96 (2d Cir. 2016) (summary order) (applying Espinal test to pretrial detainees). The causal connection must be clear, because "virtually any adverse action taken against a prisoner by a prison official - even those otherwise not rising to the level of a constitutional violation - can be characterized as a constitutionally proscribed retaliatory act." Dolan, 794 F.3d at 295. Thus, "courts in the Second Circuit 'approach prisoner retaliation claims with skepticism and particular care.'" Williams v. King, 2018 WL 565719, at *3 (S.D.N.Y. Jan. 24, 2018) (quoting Dolan, 794 F.3d at 295), aff'd, 763 Fed.Appx. 36 (2d Cir. 2019). Even where there is evidence of a retaliatory motive, "a defendant may be entitled to summary judgment if he can show . . . that even without the improper motivation the alleged retaliatory action would have occurred." Scott v. Coughlin, 344 F.3d 282, 287-88 (2d Cir. 2003); accord West v. Goord, 2017 WL 3251253, at *7 (W.D.N.Y. July 31, 2017).

4. Equal Protection

"To prove an equal protection violation, [a plaintiff] must prove purposeful discrimination, directed at an identifiable or suspect class." Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir.1995) (citations omitted). "In other words, '[t]o prove a violation of the Equal Protection Clause . . . a plaintiff must demonstrate that he was treated differently than others similarly situated as a result of intentional or purposeful discrimination.'" Randle v. Alexander, 960 F.Supp.2d 457, 476 (S.D.N.Y. 2013) (quoting Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005) (citation omitted)); see B. Braxton/Obed-Edom v. City of New York, 368 F.Supp.3d 729, 740 (S.D.N.Y. 2019) (the plaintiff must show "'that similarly situated persons have been treated differently'" (quoting Gagliardi v. Vill. of Pawling, 18 F.3d 188, 193 (2d Cir. 1994)). Additionally, in a prison setting, the plaintiff must demonstrate "that his treatment was not "reasonably related to [any] legitimate penological interests." Phillips, 408 F.3d at 129 (quoting Shaw v. Murphy, 532 U.S. 223, 225 (2001)).¹⁷

17 Similarly, under the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL), a plaintiff must show that the defendant engaged in "discriminatory acts," Jong-Fwu Lee v Overseas Shipholding Group, Inc., 2002 WL 1929490, at *21 (S.D.N.Y. Aug. 21, 2002) (citations omitted), with a "discriminatory motive." See Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 110 (2d Cir. 2013) ("The plaintiff still bears the burden of showing that the conduct is caused by a discriminatory motive."); Tchatat v. City of New York, 2015 WL 5091197 (S.D.N.Y. Aug. 28, 2015) ("As was the case for Plaintiff's [federal] claim, discriminatory motive is critical to state a claim under the NYCHRL."). The discriminatory motive may be established through evidence that the defendant treated the plaintiff "less well" than others "similarly situated." Gorman v. Covidien, LLC, 146 F.Supp.3d 509, 530 (S.D.N.Y. 2015) (citations omitted).

5. Supervisory Liability

Regardless of the constitutional right involved, prison officials, like others acting under color of state law, can only be held liable for their own conduct. As the Supreme Court explained in Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009), "vicarious liability is inapplicable" to § 1983 suits. Consequently, a § 1983 plaintiff must both plead and prove "that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Id.; see also Boley v. Durets, 687 Fed.Appx. 40, 41 (2d Cir. 2017) (summary order) ("[t]o establish a § 1983 claim, a plaintiff must show the defendants' personal involvement in the alleged constitutional violation"); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) ("personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983" (internal quotation marks and citations omitted)), abrogated on other grounds, Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020).

Personal involvement must be demonstrated both for line officers, see, e.g., McGrier v. City of New York, 849 Fed.Appx. 268, 272 (2d Cir. 2021) (summary order) (upholding grant of summary judgment to Rikers Island correction officer involved in cell extraction where there was "some evidence" that excessive force was used in the extraction but "no reasonable jury could find [the named officer] directly responsible for applying [the] unconstitutionally excessive force"), and for supervisory officials. See Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985) (supervisory liability requires "a showing of more than the linkage in the prison chain of command [because] the doctrine of respondeat superior does not apply"). Moreover, after Iqbal, there is no "special test for supervisory liability." Tangreti, 983 F.3d at 616. In evaluating whether a supervisory official can be liable for injuries inflicted by others, the court must analyze the same elements that define the constitutional tort for direct actors. Id.; see also Dumel v. Westchester Cty., 2021 WL 738365, at *7 (S.D.N.Y. Feb. 25, 2021) ("whatever the alleged constitutional violation may be, '[t]he violation must be established against the supervisory official directly'" (quoting Tangreti, 983 F.3d at 618)). Thus, for example, "for deliberate-indifference claims under the Eighth Amendment against a prison supervisor, the plaintiff must plead and prove that the supervisor had subjective knowledge of a substantial risk of serious harm to an inmate and disregarded it." Tangreti, 983 F.3d at 618.

6. Municipal Liability

Under the Supreme Court's decision in Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978), a municipality may be held liable under § 1983 only if the plaintiff shows the existence of a constitutional violation "'that was caused by an official municipal policy or custom.'" Frost, 980 F.3d at 257 (quoting Bellamy v. City of New York, 914 F.3d 727, 756 (2d Cir. 2019)). "There are three elements to a Monell claim: '(1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.'" McGrier, 849 Fed.Appx. at 272 (quoting Lucente v. Cnty. of Suffolk, 980 F.3d 284, 297 (2d Cir. 2020)); accord Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007).

III. DISCUSSION

A. CO Ambrose

It is undisputed that CO Ambrose was not present for any of the events of July 17, 2015. He therefore cannot be liable for any excessive force used against her that day by other officers. See Arminio v. Holder, 2019 WL 176804, at *3 (S.D.N.Y. Jan. 11, 2019) (quoting Russo v. DeMilia, 894 F.Supp.2d 391, 414 (S.D.N.Y. 2012)) (a correction officer "is personally involved in the use of excessive force if he either: (1) directly participates in an assault; or (2) was present during the assault, yet failed to intercede on behalf of the victim even though he had a reasonable opportunity to do so"); Univ. Calvary Church v. City of New York, 2000 WL 1538019, at *4 (S.D.N.Y. Oct. 17, 2000) (granting summary judgment to defendant Parrish because "[t]here is no showing that he was involved in or even present at the time the arrest or use of force occurred.").

Similarly, plaintiff does not claim that Ambrose played any role in denying her medical care (or, for that matter, that he had any awareness of her alleged injuries). He therefore cannot be liable to her on a deliberate indifference theory. See Simpson v. Town of Warwick Police Dep't, 159 F.Supp.3d 419, 444 (S.D.N.Y. 2016) ("Maslanka and Sisco are entitled to summary judgment on Simpson's deliberate indifference claim because, as stated above, the record shows that neither officer participated in Simpson's arrest or detention at the Warwick police station or Orange County jail. As such, there is no reason to believe that either officer was personally involved in, or even aware of, any alleged deprivation of medical care."); Lara-Grimaldi v. Cty. of Putnam, 2018 WL 1626348, at *11 (S.D.N.Y. Mar. 29, 2018) (dismissing deliberate indifference claim against Smith where there was no allegation that Smith "was involved in, aware of, or somehow permitted" the alleged deprivation of adequate care, nor even that he "interacted with Grimaldi or any of the PCCF employees responsible for making the screening recommendation for Grimaldi during the two days Grimaldi was . . . incarcerated [at] PCCF").

Plaintiff's retaliation, equal protection, and discrimination claims should also be dismissed as against Ambrose. According to plaintiff, Ambrose threatened her on July 16, 2015, because she "got [him] suspended." Pl. Dep. Tr. at 59:7-24. "[T]he filing of prison grievances is a constitutionally protected activity," Davis v. Goord, 320 F.3d 346, 352-53 (2d Cir. 2003), and I see no reason why a complaint made to an outside agency (like the Legal Aid Society) and relayed to prison authorities by email should be treated any differently. However, the retaliatory threat that Ambrose allegedly made - and that plaintiff says she believed - was that other inmates were going to beat her in the holding cell of the intake unit, Pl. Dep. Tr. at 63:9-11, where there were "no cameras." Id. at 68:9-10. That never happened. Instead, due to her fear of inmate-on-inmate violence, plaintiff refused to enter the cell at all, id. at 63:18-66:24, obliging the officers escorting her to carry her. She then "snatched loose from their grip," "grabbed a table," id. at 68:6-10, and refused to let go, requiring the officers, in turn, to use force to dislodge her. On this record, no reasonable jury could conclude that Ambrose was responsible for that use of force, much less that there was a "causal connection," see Dolan, 794 F.3d at 294, between plaintiff's allegedly protected speech and the "adverse action" she experienced at the hands of other officers, after repeatedly refusing to follow their orders, on July 17, 2015. See Williams, 2018 WL 565719, at *3-4 (granting summary judgment to defendant King where plaintiff had previously filed a grievance against King but produced no evidence suggesting that King assigned Mead to conduct plaintiff's disciplinary hearing in retaliation for that grievance, nor that King "had any reason to believe that Mead would conduct the disciplinary hearing in a biased manner").

Moreover, while plaintiff has testified to her belief that Ambrose's threat was retaliatory, she presents no evidence that it was discriminatory; that is, that it arose from any animus relating to her sex, gender, or sexual orientation. The fact that plaintiff presented as a gay man when the threat was made does not, standing alone, support an inference of animus on that basis. See White v. City of New York, 206 F.Supp.3d 920, 931 (S.D.N.Y. 2016) (dismissing equal protection claim brought by transgender man against officers who, according to plaintiff, were insufficiently responsive to his request for police assistance, but did not otherwise display any "discriminatory animus").¹⁸ Nor does she point to any evidence that otherwise "similarly situated persons" of a different sex, gender, or sexual orientation were "treated differently" by Ambrose. B. Braxton/Obed-Edom, 368 F.Supp.3d at 740. I therefore recommend, respectfully, that summary judgment be granted to CO Ambrose on all of plaintiff's claims.

18 According to plaintiff, the misconduct for which she got Ambrose suspended was "making comments, racial comments towards me while I was on the phone with Prisoner's Rights." Pl. Dep. Tr. at 59:10-12. Plaintiff has not offered any other details about this incident.

B. COs Lopez and Rothwell

1. Excessive Force

a) The Intake Unit - Morning Incident

The use of pepper spray "constitutes a significant degree of force" and can, in certain cases, form the basis of a constitutional violation. Tracy v. Freshwater, 623 F.3d 90, 98 (2d Cir. 2010); Berry v. City of New York Dep't of Corr., 2014 WL 2158518, at *5 (S.D.N.Y. May 22, 2014), aff'd sub nom. Berry v. New York City Dep't of Correction, 622 Fed.Appx. 10 (2d Cir. 2015). However, if the force was "applied in a good-faith effort to maintain or restore discipline," it "will not amount to excessive force under Second Circuit law." Adilovic v. Cnty. of Westchester, 2011 WL 2893101, at *6 n. 12 (S.D.N.Y. July 14, 2011) (internal citation omitted) (quoting Sims v. Artuz, 230 F.3d 14, 21 (2d Cir. 2000)); accord Berry, 2014 WL 2158518, at *5; see also Walton v. Lee, 2019 WL 1437912, at *6 (S.D.N.Y. Mar. 29, 2019) ("The use of pepper spray is not an actionable constitutional violation where there is no lasting injury, and where the subject was not cooperating with law enforcement.")

In this case, the facts surrounding Officer Lopez's use of pepper spray on plaintiff are undisputed, and the incident is clearly depicted on the video footage submitted by defendants, Saavedra Decl. Ex. C, which shows that: (1) plaintiff actively resisted efforts to deliver her to the intake holding cell, first by struggling as she was half-carried, half-dragged towards the door of the cell, ¹⁹ and then by twisting out of the officers' grip and anchoring herself to the leg of a large metal table; (2) plaintiff continued to disobey as the officers made efforts to obtain compliance without force²⁰; and (3) after giving plaintiff what appeared to be a last warning, Officer Lopez delivered two short bursts of chemical spray towards plaintiff from at least six feet away. Even after being sprayed, plaintiff did not move. Several minutes later, it took a group of five officers to hold onto plaintiff while lifting the entire table up and out of her grip. Under these circumstances, the use of pepper spray was both justified - because "the subject was not cooperating with law enforcement," Walton, 2019 WL 1437912, at *6 - and proportional. See Kopy v. Howard, 2010 WL 3808677, at *3 (N.D.N.Y. Aug. 11, 2010) (correction officer was entitled to use pepper spray on detainee to "forcibly move[]" him after he "refused several direct orders to return to his cell"), report and recommendation adopted, 2010 WL 3807166 (N.D.N.Y. Sept. 21, 2010).²¹ Moreover, although plaintiff complained of burning eyes - treated later that day - she suffered no "long lasting injury" from the spray. Walton, 2019 WL 1437912, at *6.

19 Although plaintiff's feet were on the ground, she was being pulled toward the holding cell - with difficulty - by two correction officers who held her by the upper arms and, at times, by her shirt.

20 Although the video footage is silent, it shows that that after Officer Lopez (wearing a mask and holding a cannister) got into position to administer the pepper spray, a senior officer gestured to Lopez to hold off, then walked over to plaintiff, touched her shoulder, and spoke with her for a few moments before walking away and permitting Lopez to proceed.

21 It could be argued - with the benefit of hindsight - that the officers should have attempted to lift up the table before using the pepper spray. However, that approach also involved considerable physical force, as well as considerable risk to the five officers it took to separate plaintiff (whose legs were not shackled) from the metal table. Moreover, the Court is required to view a claim of excessive force based on "what the officer[s] knew at the time, not with the 20/20 vision of hindsight." Kingsley, 576 U.S. at 395-97.

Since no reasonable jury could find Officer Lopez's conduct "objectively unreasonable," Kingsley, 576 U.S. at 397, plaintiff's excessive force claim, to the extent arising from the use of pepper spray on her, must fail. See Kopy, 2010 WL 3807166, at *1 (granting summary judgment to officer who used pepper spray to force detainee to return to his cell); Casiano v. Ashley, WL 281460, at *4 (W.D.N.Y. Jan. 28, 2021) (granting summary judgment to deputies who used physical force, including pepper spray to the face, after plaintiff disobeyed orders to remove her clothing for a strip search and then refused to place both hands behind her back); Quinones v. Rollison, 2020 WL 6420181, at *4 (S.D.N.Y. Nov. 1, 2020) (granting summary judgment to Rikers Island CO who used pepper spray to break up a fight between two prisoners after they disregarded his orders to stop); Walton, 2019 WL 1437912, at *5-6 (granting summary judgment to Rikers Island CO who used pepper spray to "subdue" a detainee who "rushed past officers" when they opened his cell door and "continued to advance away from them").

Even assuming that Lopez used excessive force when he sprayed plaintiff, he would be entitled to qualified immunity as to this incident, because "there is no clearly established law forbidding [the] use [of pepper spray] against individuals who refuse to comply with officer instructions after a warning." Taylor v. Nieves, 2020 WL 7028907, at *3 (S.D.N.Y. Nov. 30, 2020) (granting summary judgment, on qualified immunity grounds, to COs who sprayed plaintiff twice after he left his cell against instructions and after the COs' initial efforts "to cajole Taylor to return to his cell were ineffective"). See also Brown v. City of New York, 862 F.3d 182, 190 (2d Cir. 2017) (affirming grant of summary judgment, on qualified immunity grounds, to police officer who used pepper spray to subdue a suspect who "refused to comply with the instructions to place her hands behind her back for handcuffing").

Plaintiff alleges that, after she was pepper-sprayed, separated from the table leg, and placed on the stretcher, she was assaulted again, this time by three or four officers who gratuitously punched her in her face and chest. Pl. Dep. Tr. at 73:9-21, 75:2-5. It is possible that Officers Lopez and Rothwell were among the group that remained with plaintiff after she was placed on the stretcher and restrained.²² That possibility, however, is insufficient to defeat summary judgment as to this alleged incident. As noted above, plaintiff could not be sure of any of the officers who remained with her for this episode, much less identify those who punched her. Def. Rule 56.1 St. ¶ 18; Pl. Dep. Tr. at 74:16-21. Thus, even assuming that her assertions are truthful, she has offered no evidence that COs Rothwell and Lopez, "as opposed to one of the other officers," punched her or otherwise used excessive force on her once she was on the stretcher. McGrier v. City of New York, 2019 WL 1115053, at *10 (S.D.N.Y. Mar. 11, 2019) (granting summary judgment to Officer Robles, who was part of a six-officer team that allegedly punched and kicked plaintiff while he was handcuffed during a cell extraction, because plaintiff "failed to offer any facts tending to show that it was Robles who punched or kicked him while he was handcuffed, other than Robles's presence at the scene") (emphasis in the original), aff'd, 849 Fed.Appx. 268 (2d Cir. 2021); Gutierrez v. New York, 2021 WL 681238, at *6 (E.D.N.Y. Feb. 22, 2021) (granting summary judgment to three of the defendant police officers because, although it was "likely" they were involved in the arrest of a group of alleged robbers or the ensuring investigation, "there is no evidence that they participated in, and were therefore personally involved with, Plaintiff's arrest"). In the absence of any admissible evidence showing that Rothwell and Lopez were present for and personally participated in this alleged assault, plaintiff cannot maintain an excessive force claim against either of them with respect to any of the morning incidents in the intake unit.

22 As plaintiff correctly notes, the video footage submitted by defendants ends shortly after she was secured on the stretcher. No punching, gratuitous or otherwise, is visible on the footage that was supplied.

b) The GMDC Clinic

For the same reason, plaintiff cannot maintain an excessive force claim against Rothwell and Lopez for beating her in the hallway of the GMDC clinic. By her own admission, plaintiff kept her eyes closed during this alleged attack, Pl. Dep. Tr. at 79:3-13, and there is no video footage of any such incident. Absent some admissible evidence showing that Rothwell and Lopez personally participated in this alleged assault, they are entitled to summary judgment. McGrier, 2019 WL 1115053, at *10.

Summary judgment would be inappropriate, however, with respect to the alleged assault in the clinic bathroom. As to this incident, plaintiff clearly identified Rothwell and Lopez as the officers who - in her telling - came inside the bathroom when she was washing her face and started hitting and kicking her. Pl. Dep. Tr. at 76:18-22 ("they both started kicking me real hard"), 80:4-6 (Rothwell "started kicking me and him and Lopez . . . drug me to the mental health part [where] there [are] no cameras"), 82:8-9 ("Lopez and Rothwell came and beat me up in the bathroom").

Defendants urge the Court to grant summary judgment as to this alleged incident because plaintiff's allegations are "fanciful" and "directly contradicted by the medical records" of her next clinic visit, "which show that plaintiff did not have any visible injuries." Def. Mem. at 13. Defendants primarily rely on Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005), an excessive force case in which the Court of Appeals affirmed the grant of summary judgment against a plaintiff who "relie[d] almost exclusively on his own testimony, much of which [was] contradictory and incomplete," and Shabazz, 994 F.Supp. at 468-71, another excessive force case, in which then-District Judge Sotomayor granted summary judgment after noting the absence of any corroborating evidence in the record and highlighting the many inconsistencies and contradictions within the plaintiff's deposition testimony and affidavits. In both of those cases, however, the plaintiffs repeatedly contradicted themselves as to the basic facts of their claims, including both the way in which they were injured and the nature of their injuries.²³ Here, although plaintiff's allegations are both uncorroborated and inconsistent with the clinic's medical records (to the extent those records report that she had "no visible injuries" later that same morning, Saavedra Decl. Ex. B, at ECF pages 23-24, and only minor injuries that evening, after the cell extraction, id. at ECF pages 19-20), her own account has largely been consistent, beginning when she told PA Ndayishimiye that she was injured in an "attack by staff," id., and she has clearly identified Rothwell and Lopez as her alleged assailants, explaining that she opened her eyes before she made her way to the bathroom. Pl. Dep. Tr. at 79:14-17. Moreover, there is no evidence directly contradicting her account of the assault itself. There was no video, and defendants did not submit any testimony from Rothwell, Lopez, or clinic personnel. Cf. Jeffries, 426 F.2d at 551-53 (summarizing contrary testimony of police officer defendants and medical expert).

23 In Jeffries, the plaintiff told multiple interviewers that he jumped out of a third-story classroom window, while burglarizing a school, in order to evade police officers who were at the door of the classroom. 426 F.3d at 552. Nine months later, he alleged for the first time that he surrendered to the police but was then beaten and thrown out the window by officers he could not identify or describe. Id. at 551. He also alleged, for litigation purposes, that he lost consciousness, although he told the EMTs who responded to the scene, as well as the physician who examined him hours later, that he had not. Id. at 553. Similarly, in Shabazz, the plaintiff's version of the events in question underwent "at least one significant revision," when he abandoned his allegations that he was beaten "outside the transfer van" and manhandled from that location into the Greenhaven Prison, where he was further abused, and asserted instead "that the beating occurred only inside the van." 994 F.Supp. at 470 (emphasis in the original). Moreover, Shabazz "changed his allegations regarding his injuries a number of times during the course of this litigation," several times alleging that he suffered serious physical injuries (uncorroborated by the relevant medical records, which he claimed to be inaccurate), but then testifying, at deposition, that "he suffer[ed] only from 'emotional and psychological scars.'" Id. at 469.

On this record, I cannot recommend that plaintiff's claims as to the alleged assault in the clinic bathroom be dismissed on summary judgment. In Nielsen v. Rabin, 746 F.3d 58 (2d Cir. 2014), the Court of Appeals held that the District Judge erred in relying on the contents of medical records (the accuracy of which was disputed) to deny leave to amend to a pro se plaintiff who sued two emergency room doctors for failing to properly diagnose and treat serious injuries that he claimed to have sustained during his arrest. "In doing so," the appellate court explained, the trial court "inappropriately resolved questions of fact." id. at 63, because "[t]he medical records' description of his complaints is only the defendants' version of the events." Id. at 63 n.4. "By assuming that the records are true where they contradict the allegations in the complaint, the dissent turns the Rule 12(b)(6) standard on its head." Id.

Here, of course, the standard is supplied by Rule 56, which also prohibits the court - except in the "rare circumstances" presented in Jeffries, 426 F.3d at 554 - from weighing the evidence or assessing the credibility of witnesses. In an ordinary case, such as this one, those determinations "are within the sole province of the jury." Frost, 980 F.3d at 245-46 (characterizing Jeffries as a "narrow exception" to the rule against weighing the evidence on summary judgment and holding that although there were many reasons to be skeptical of a bare-bones declaration from a recanting witness, the district court "erred both in discrediting Vega's declaration at the summary judgment stage and in dismissing Frost's due process claim as a result"); see also Gutierrez, 2021 WL 681238, at *4 (although "[p]laintiff's version of events" was implausible, in that it conflicted with the records submitted by defendants, court declined to "discredit" that version on summary judgment, because plaintiff did not "sufficiently contradict[] himself to render [his] testimony incredible"); Jeanty v. City of Utica, 2021 WL 149051, at *22 (N.D.N.Y. Jan. 14, 2021) (denying summary judgment to police officer who allegedly fabricated evidence where plaintiff's account was "not 'so replete with inconsistencies and improbabilities that no reasonable juror would undertake the suspension of disbelief necessary to credit' his testimony" (quoting Jeffreys, 426 F.3d at 551)), adhered to on reconsideration, 2021 WL 2525061 (N.D.N.Y. Apr. 15, 2021).

Construing the evidence in the light most favorable to plaintiff, as I must, I conclude that although her account of the alleged assault in the clinic bathroom and her resulting injuries is materially inconsistent with the Rikers Island medical records submitted by defendants, her testimony - which is not otherwise contradicted by any of defendants' evidence - is neither internally self-contradictory nor inherently so far-fetched as to be "beyond belief," Shabazz, 994 F.Supp. at 470, as a matter of law. Moreover, if the attack occurred as plaintiff claims, and produced some or all of the injuries she describes, a rational juror could find that COs Rothwell and Lopez deliberately used a degree of force that was "objectively unreasonable" under the circumstances. Kingsley, 576 U.S. at 395-97. In my view, therefore, summary judgment should not be granted to these defendants as to the incident in the clinic bathroom.

c) The Intake Unit - Afternoon Cell Extraction

Because plaintiff admits that Rothwell and Lopez were not present during the cell extraction after plaintiff was returned to the intake unit, her excessive force claims against them arising from this incident should be dismissed. Univ. Calvary Church, 2000 WL 1538019, at *4.

2. Deliberate Indifference

Officers Rothwell and Lopez cannot be liable to plaintiff for denying her adequate medical care during the morning of July 17, 2015, because they delivered her to the GMDC clinic after the morning incident in the intake unit (and then again, according to plaintiff, after the alleged assault in the clinic bathroom). See Pl. Dep. Tr. at 82:14-19. To be sure, plaintiff complains that the clinic staff "gave me half ass medical attention where they only did my vitals," and failed to record her injuries accurately, id. at 80: 13-24. However, since she does not allege (much less submit any evidence demonstrating) that Rothwell or Lopez had any personal involvement in directing her medical care or influencing the preparation of her medical records, they cannot be liable in damages for any substandard medical care by the clinic staff.

Plaintiff was taken to the clinic again a few hours later, after the afternoon cell extraction. Even if she were not given prompt treatment, however, Rothwell and Lopez could not be liable on a deliberate indifference theory in relation to that incident, because it is undisputed that they were not present for the extraction, and thus could not have known that she needed additional medical attention. Darnell, 849 F.3d at 33. The same is true with respect to plaintiffs claims that she was denied adequate medical attention after she was transferred to AMKC. Since there is no evidence that Rothwell and Lopez ever "interacted" with plaintiff at AMKC, much less that they played some role in denying her medical attention, plaintiff's deliberate indifference claim should be dismissed against these defendants in its entirety. Lara-Grimaldi, 2018 WL 1626348, at *11; see also Simpson, 159 F.Supp.3d at 444.

3. Retaliation

Plaintiff's retaliation claims should also be dismissed as against Rothwell and Lopez. There is no suggestion in the evidentiary record that plaintiff filed any grievances against these two officers (or complained about them to Prisoner's Rights), nor that they were aware of her complaints about Officer Ambrose. As to COs Rothwell and Lopez, therefore, plaintiff has presented no evidence as to two of the three necessary elements of a retaliation claim: (relevant) protected speech or conduct and a causal connection between the protected speech or conduct and the adverse action of which she complains. Dolan, 794 F.3d at 294; Espinal, 558 F.3d at 129.

4. Equal Protection, NYSHRL, and NYCHRL

Finally, COs Rothwell and Lopez are entitled to summary judgment on plaintiffs equal protection and state law discrimination claims, because there is no evidence in the record that either of these defendants harbored a discriminatory motive relating to plaintiff's sex, gender, or sexual orientation, nor that they treated plaintiff "differently than others similarly situated" on that basis. Phillips, 408 F.3d at 129; see also Bradshaw v. Hernandez, 788 Fed.Appx. 756, 759 (2d Cir. 2019) (summary order) (affirming that "conclusory allegations . . . do not support an Equal Protection claim" where the plaintiff has no "competent evidence that any of the individual defendants were motivated by . . . discrimination").

C. The Supervisory Defendants

Plaintiff does not so much as mention the Supervisory Defendants in her deposition, nor in any of the papers she submitted in opposition to summary judgment. Her claims against them may therefore be deemed abandoned. See Hayes v. Cnty. of Sullivan, 853 F.Supp.2d 400, 418 (S.D.N.Y. 2012) (claim deemed abandoned where plaintiff failed to address it "in either of his affidavits in response to Defendants' motions for summary judgment").

Even if plaintiff did not intend to abandon her claims against the Supervisory Defendants, those claims would be subject to dismissal because there is no evidence, anywhere in the record, showing that former Commissioner Ponte, former Chief of Department Murphy, or former Deputy Commission Blake was personally involved in the alleged use of excessive force by COs Rothwell and Lopez in the clinic bathroom on July 17, 2015. See Blyden v. Mancusi, 186 F.3d 252 (2d Cir. 1999) ("[F]or a supervisor to be liable under Section 1983, there must have been an underlying constitutional deprivation."). Nor, for that matter, is there any evidence showing that they were personally involved in any of the other constitutional violations alleged against the CO Defendants. The lack of such evidence is fatal, because every constitutional violation "must be established against the supervisory official directly," based on "what the supervisor did or caused to be done, 'the resulting injury attributable to his conduct, and the mens rea required of him to be held liable, which can be no less than the mens rea required of anyone else.'" Tangreti, 983 F.3d at 618 (quoting Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010)). The Supervisory Defendants are therefore entitled to summary judgment on all of plaintiff's claims.

D. Municipal Liability

Monell liability, like supervisory liability, requires an underlying constitutional or statutory violation by a human officer. Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007). It also requires proof that the underlying violation "was caused by an official municipal policy or custom." Frost, 980 F.3d at 257. "Where a plaintiff can show only 'misbehaving officers,' . . . but has not offered proof of an official policy that led to the constitutional or statutory violation, his claim must fail." Adilovic v. Cty. of Westchester, 2011 WL 2893101, at *8 (S.D.N.Y. July 14, 2011) (Turpin v. Mailet, 619 F.2d 196, 203 (2d Cir. 1980)).

Here, as in Adilovic, "the record contains no evidence of an official policy authorizing, sanctioning, encouraging, or promoting the use of excessive force against inmates." Id. Nor has plaintiff made any effort (beyond the allegations in her Amended Complaint) to posit the existence of such a policy. The City is therefore entitled to summary judgment on all of plaintiff's claims. Id. (in the absence of any evidence of a municipal policy or custom, "even if Adilovic's claims rose to the level of a constitutional violation, they indicate only 'a single incident of unconstitutional activity [which] is not sufficient to impose liability under Monell.'" (quoting City of Oklahoma City v. Tuttle, 471 U.S. 808, 841 (1985))).

IV. CONCLUSION

After an assiduous review of the record, which I have construed in the light most favorable to the plaintiff, I have been unable to identify any triable issue of material fact that could defeat defendants' motion for summary judgment, with the exception of plaintiff's excessive force claim against COs Lopez and Rothwell arising out of the alleged incident in the bathroom of the GMDC medical clinic on the morning of July 17, 2015. Accordingly, I respectfully recommend that defendants' summary judgment motion be GRANTED in favor of individual defendants Ambrose, Ponte, Murphy, and Blake, and the City of New York, on all of plaintiff's claims. As to defendants Lopez and Rothwell, I recommend that the motion be GRANTED IN PART, and that all claims against them be dismissed except for the portion of plaintiff's First Claim seeking damages pursuant to § 1983 for the force that they allegedly used on her in the bathroom of the GMDC clinic.

I further recommend that plaintiff's claims against unserved defendants Black, Cardoza, Debianchi, Hall, Haynie, Kirkland, Lawrence, Monteforte, Saldana, Skepple, and Stevenson be dismissed without prejudice pursuant to Fed.R.Civ.P. 4(m). See Zapata v. City of New York, 502 F.3d 192, 199 (2d Cir. 2007).

The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to the plaintiff.

NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

The parties shall have fourteen days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed.R.Civ.P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Lewis A. Kaplan at 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned magistrate judge. Any request for an extension of time to file objections must be directed to Judge Kaplan. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Frydman v. Experian Info. Sols., Inc., 743 Fed.Appx. 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).