09-1929-pr
Jean-Laurent v. Wilkerson, et al.

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after
January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this
Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party
must cite either the Federal Appendix or an electronic database (with the notation “summary order”).
A party citing a summary order must serve a copy of it on any party not represented by counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel
Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 8th day
of February, two thousand twelve.


PRESENT:

                   JOSÉ A. CABRANES,
                   CHESTER J. STRAUB,
                   DEBRA ANN LIVINGSTON,

                              Circuit Judges.
__________________________________________

Phillip Jean-Laurent,

                   Plaintiff-Appellant,

                            v.                                          09-1929-pr

C.O. Wilkerson1, #11281, Cpt. Matos, #856, Cpt. Burrows, #997, C.O. Rodriguez, #15262, C.O.
Robinson, #15169, Warden Jergenson, #1 John Doe, John Doe #2, Commissioner Martin F. Horn,
Dominick Martinez,

                   Defendants-Appellees,

Cpt. Martinez, #1218, Patrick Walsh, C.O. Deidra Colds, #12735, C.O. Terry Fowler, #3291,

         1
          C.O. Wilkerson is alternatively addressed as “Wilkinson” and “Wilinson” at various points
in the parties’ briefs and the Record on Appeal. As he is identified as Wilkerson on both the District
Court and Court of Appeals docket sheets, we will leave well enough alone.

                                                1
Donald McCarthy,

            Defendants.
__________________________________________

FOR APPELLANT:                 Phillip Jean-Laurent, pro se, South Ozone Park, NY.

FOR APPELLEES:                 Tahirih M. Sadrieh, Assistant Corporation Counsel (Francis Caputo,
                               Assistant Corporation Counsel, of counsel), for Michael A. Cardozo,
                               Corporation Counsel of the City of New York, New York, NY.

       Appeal from a judgment of the United States District Court for the Southern District of
New York (David Hittner, United States District Judge for the Southern District of Texas, sitting by
designation).2

        UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court is AFFIRMED in part, with respect to the
dismissal of the claims against defendants Walsh, Fowler, Colds, Horn, and the City of New York,
VACATED in part, with respect to its dismissal of plaintiff’s state-law claims, and REMANDED
for further proceedings.

         Appellant Phillip Jean-Laurent, proceeding pro se, appeals from various orders and decisions
of the District Court during the course of his lawsuit against certain officers of the City of New
York Department of Correction (“DOC”), which ended in a jury verdict in his favor on claims
against two defendants for conducting an unreasonable strip search and using excessive force, and
against two supervisory defendants for negligent supervision. The jury returned a verdict in favor of
four other defendants on claims of failure to intervene and negligent supervision. The jury awarded
Jean-Laurent nominal compensatory damages and $15,000 in punitive damages. We assume the
parties’ familiarity with the underlying facts and procedural history of the case, and the issues on
appeal.

I.     Decision Partially Granting Motion to Dismiss

        Jean-Laurent first challenges the District Court’s decisions dismissing his claims against
Warden Patrick Walsh and Officers Terry Fowler and Deidra Colds. “We review de novo a district
court’s dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally,


       2
         This case was originally assigned to Southern District Judge Victor Marrero, who ruled on
the motions that are the subject of the appeal, before being transferred to Judge Hittner prior to
trial.

                                              2
accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the
plaintiff's favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). A complaint must
plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). A claim will have “facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009). Although factual
allegations in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.”
Id.

        With respect to Jean-Laurent’s claims against Warden Patrick Walsh, we affirm the District
Court’s decision of July 6, 2006, dismissing these claims substantially for the reasons stated by the
District Court. See Jean-Laurent v. Wilkerson, 438 F. Supp. 2d 318, 326 (S.D.N.Y. 2006).



         We decline to address Jean-Laurent’s argument that his First Amended Complaint should
have been liberally construed to allege that Warden Walsh implemented an unconstitutional policy
related to the use of excessive force, as he raises this argument for the first time on appeal. See In re
Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 132 (2d Cir. 2008) (“It is a well-established general rule
that an appellate court will not consider an issue raised for the first time on appeal.”) (alteration
omitted).

         To the extent that Jean-Laurent has reiterated his argument that Warden Walsh was aware
of, yet failed to prevent, the unconstitutional conduct of his subordinates, the District Court
correctly determined that Jean-Laurent’s pleadings contained no specific factual allegations
suggesting that this may have been the case.

          We also affirm, substantially for the reasons stated by the District Court, its judgment
dismissing Jean-Laurent’s claims against Officers Terry Fowler and Deidra Colds, for failing to
intercede on his behalf. “A law enforcement officer has an affirmative duty to intercede on the
behalf of a citizen whose constitutional rights are being violated in his presence by other officers.”
O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988). “Failure to intercede results in liability where an
officer observes excessive force is being used or has reason to know that it will be.” Curley v. Village
of Suffern, 268 F.3d 65, 72 (2d Cir. 2001). However, “[i]n order for liability to attach, there must have
been a realistic opportunity to intervene to prevent the harm from occurring.” Anderson v. Branen, 17
F.3d 552, 557 (2d Cir. 1994).

       Here, Jean-Laurent did not allege in his First Amended Complaint that Fowler or Colds
observed, or had reason to know of, the second alleged violation of his rights, during which he was


                                                 3
allegedly taken to a stairwell, ordered to strip, and struck in the face. Rather, he alleged only that
they were present during the first alleged violation of his rights, when he “was stood to his feet by
the collar of his shirt by officer Wilkinson and slammed against the wall as officer Wilkinson got in
plaintiff’s face and continued to verbalize him and as ADW Jorgensen, Cpt. Burrows, Matos, C.O.
Fowler, and Colds stood by and watched.”

        The District Court properly concluded that the First Amended Complaint failed to allege
facts showing that Fowler and Colds had a reasonable opportunity to intercede to stop the first
alleged violation and that they observed, or had reason to know of, the second violation, in the
stairwell. Although Jean-Laurent argued in papers opposing the motion to dismiss that Fowler and
Colds should have known that his rights would be violated in the stairwell because they allegedly had
witnessed the first assault, were nearby and had heard another inmate scream from the vicinity of the
stairwell, and had observed Jean-Laurent being escorted to the stairwell, the District Court was
required only to address the sufficiency of the allegations actually made in the First Amended
Complaint. In the absence of allegations in the First Amended Complaint that would plausibly
support the inference that Fowler and Colds observed, or had reason to know, that Jean-Laurent’s
rights were being violated, and had an opportunity to intercede, the District Court properly
dismissed these claims.

II.     Decision Partially Granting Summary Judgment

        Next, Jean-Laurent challenges the District Court’s decision, on summary judgment,
dismissing Jean-Laurent’s claims alleging supervisory liability on the part of Commissioner Horn and
municipal liability on the part of the City of New York. We review an order granting summary
judgment de novo, and ask whether the District Court properly concluded that there were no genuine
issues of material fact with respect to a particular claim and that the moving party was entitled to
judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.
2003). In determining whether there are genuine issues of material fact, we are “required to resolve
all ambiguities and draw all permissible factual inferences in favor of the party against whom
summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (internal quotation
marks omitted). However, “conclusory statements or mere allegations [are] not sufficient to defeat a
summary judgment motion.” Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002).

        Here, substantially for the reasons stated by the District Court in its Decision and Order of
March 24, 2008, see Jean-Laurent v. Wilkerson, 540 F. Supp. 2d 501 (S.D.N.Y. 2008), we affirm the
District Court’s decision to grant the defendants’ summary judgment motion with respect to the
claim against Commissioner Horn and any arguable claim that he had raised against the City under
Monell v. Department of Social Services., 436 U.S. 658 (1978). The moving party is entitled to summary


                                                4
judgment where “the plaintiff has failed to come forth with evidence sufficient to permit a
reasonable juror to return a verdict in his or her favor” on an essential element of a claim on which
the plaintiff bears the burden of proof. In re Omnicom Grp., Inc. Sec. Litig., 597 F.3d 501, 509 (2d Cir.
2010).

         In the circumstances presented here, Jean-Laurent had the burden of establishing the
existence of a municipal policy or custom that caused a deprivation of his constitutional rights,
whether implemented by Commissioner Horn or otherwise. See Hartline v. Gallo, 546 F.3d 95, 103
(2d Cir. 2008) (“To prevail against a municipality on a § 1983 claim, a plaintiff must demonstrate
both an injury to a constitutionally protected right and that the injury was caused by a policy or
custom of the municipality or by a municipal official responsible for establishing final policy.”
(internal quotation marks omitted)); Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993)
(noting that a plaintiff must offer “proof of . . . a [municipal] custom or policy in order to permit
recovery on claims against individual municipal employees in their official capacities, since such
claims are tantamount to claims against the municipality itself”), overruled on other grounds by Leatherman
v. Terrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993).

        Jean-Laurent did not carry this burden, inasmuch as he offered no relevant or admissible
evidence in support of his assertion that the City of New York had established a policy or custom of
“use of excessive and brutal physical force against inmates/detainees by correctional officers,” and
he did not establish that the deprivation of his constitutional rights was caused by any such policy.
Jean-Laurent’s citation to various lawsuits involving inmate claims for the excessive use of force is
not probative of the existence of an underlying policy that could be relevant here. Similarly,
purported inadequacies in the investigations of complaints against DOC officers are not probative
of the existence of a policy under which Jean-Laurent was deprived of a constitutional right.

III.    Religious Rights Claims Under §§ 1983 and 2000cc-1

         Jean-Laurent next argues that the District Court erroneously precluded him from proceeding
to trial on his claims for violation of his religious rights under the First Amendment and the
Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc-1, et seq. It is true that
the District Court did not address these purported claims in its order on the defendants’ motion for
summary judgment, but this appears to be because the Second Amended Complaint states no such
claims. To be sure, the District Court had previously held, with respect to the First Amended
Complaint, that Jean-Laurent had sufficiently stated claims under the First Amendment and §
2000cc-1, Jean-Laurent v. Wilkerson, 438 F. Supp. 2d 318, 324 (S.D.N.Y. 2006), but the operative
complaint at the time the District Court ruled on defendants’ motion for summary judgment was the
Second Amended Complaint. See Dluhos v. Floating & Abandoned Vessel Known as “New York”, 162


                                                 5
F.3d 63, 68 (2d Cir. 1998) (“[I]t is well established that an amended complaint ordinarily supersedes
the original, and renders it of no legal effect.”). Indeed, the District Court stated, at a pretrial
conference, that it did “not have any understanding that this trial was going to be about that
religious claim.” As the Court explained, “[t]he summary judgment ruling that the court issued on
24 March 2008 addresses all of the issues that the court understood were in the case at that point.
Those all derived from the amended complaint that [Magistrate] Judge Eaton allowed.”

        Based on our review, the Second Amended Complaint contains no allegations relating to
Jean-Laurent’s religious beliefs nor any facts from which one might infer an allegation of
infringement on his religious liberty. Accordingly, the District Court did not err when it prevented
Jean-Laurent from trying claims before a jury that were not stated in the Second Amended
Complaint.

IV.     Decision Partially Denying Motion In Limine

         Jean-Laurent next challenges the District Court’s decision granting defendants’ in limine
motion to preclude him from calling a fellow inmate, Louis Ramon, as a witness at trial. We review
a district court’s decision to admit or preclude evidence for “abuse of discretion.” See Pescatore v. Pan
Am. World Airways, Inc., 97 F.3d 1, 16 (2d Cir. 1996); cf. Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008)
(“A district court has abused its discretion if it based its ruling on an erroneous view of the law or on
a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within
the range of permissible decisions.” (internal quotation marks, citations, and modifications omitted)).
A new trial is warranted if the court’s abuse of discretion clearly prejudiced the outcome of the trial.
See Hygh v. Jacobs, 961 F.2d 359, 365 (2d Cir. 1992). We will grant a new trial only if we are
“convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage
of justice.” Pescatore, 97 F.3d at 17 (internal quotation marks omitted).

         Here, although the precise reason for the District Court’s decision to preclude Jean-Laurent
from calling Ramon at trial is not clear, we may affirm that decision on any ground appearing in the
record. Freedom Holdings, Inc. v. Cuomo, 624 F.3d 38, 49 (2d Cir. 2010). Ramon’s testimony would
have been relevant had he witnessed the strip search and assault of Jean-Laurent in the staircase, but
Jean-Laurent’s contention that Ramon witnessed these events is belied by the record. Jean-Laurent
testified during his deposition that, though Ramon was initially present when the defendants led him
to the stairwell, the defendants immediately “dragged [Ramon] out of the staircase,” at which point
Jean-Laurent was “in the staircase alone.” In addition, he conceded at a pretrial conference on the in
limine motion that Ramon was not an eyewitness to the events.




                                                6
         Further, in his motion in limine, Jean-Laurent suggested that he intended to elicit Ramon’s
testimony with respect to “assaultive conditions” to which the defendants had subjected Ramon
immediately prior to assaulting Jean-Laurent. Such evidence of alleged “similar acts” has a high
potential for causing undue prejudice. See Huddleston v. United States, 485 U.S. 681, 691 (1988). As a
result, the District Court would not have abused its discretion in concluding that the probative value
of his testimony was substantially outweighed by the danger of unfair prejudice under Federal Rule
of Evidence 403, or that his testimony was inadmissible as evidence of a similar act offered to prove
character under Fed. R. Evid. 404(b). Accordingly, we affirm without reaching the question of
prejudice or Jean-Laurent’s remaining challenges to the preclusion of Ramon’s testimony.

V.      State Law Claims

         Following the partial dismissal of his First Amended Complaint, Jean-Laurent sought leave
to file a Second Amended Complaint. The motion was automatically referred to the assigned
Magistrate Judge, pursuant to the District Judge’s standing referral order under 28 U.S.C. §
636(b)(1)(A), for “General Pretrial” matters, including “scheduling, discovery, non-dispositive
pretrial motions, and settlement.”

        The proposed Second Amended Complaint included the state-law claims that the District
Court had allowed to go forward in its order on defendants’ earlier motion to dismiss, as well as
certain new claims. In opposing the motion to amend, the defendants argued that Jean-Laurent
should be precluded from raising any state-law claims on the ground that he had failed to file a
notice of claim pursuant to New York General Municipal Law (“N.Y. Gen. Mun. Law”) § 50-e(1).3
Jean-Laurent responded that he was not obligated to file a notice of claim because he was suing the
defendants individually for intentional wrongdoing undertaken outside the scope of their
employment.4


        3
          Under N.Y. Gen. Mun. Law § 50-e(1)(a), “[i]n any case founded upon a tort where a notice
of claim is required by law as a condition precedent to the commencement of an action . . . against a
public corporation . . . or any officer, appointee or employee thereof, the notice of claim shall
comply with and be served in accordance with the provisions of this section within ninety days after
the claim arises.” A notice of claim is a condition precedent to the filing of an action against an
employee of the City of New York. Id. § 50-k(6). However, as discussed further below, where an
action is filed against an employee, but not against the City, a notice of claim is only required if the
City has a statutory obligation to indemnify the employee. Id. § 50-e(1)(b).
        4
         As prefaced above, where a plaintiff brings an action against an employee of a public
corporation, “but not against the public corporation, service of the notice of claim upon the public
corporation shall be required only if the corporation has a statutory obligation to indemnify such
person under this chapter or any other provision of law.” N.Y. Gen. Mun. Law § 50-e(1)(b)

                                                7
          The Magistrate Judge granted Jean-Laurent’s motion for leave to file a second amended
complaint, but (among other conditions) expressly “den[ied] plaintiff leave to serve any amended
complaint to the extent it contains any state-law claims.” In so doing, the Magistrate Judge not only
denied plaintiff leave to plead new claims, but effectively dismissed Jean-Laurent’s existing state-law
claims, which had survived the defendant’s motion to dismiss. This amounted to a ruling on a
dispositive matter, something that exceeds a magistrate judge’s authority under 28 U.S.C. §
636(b)(1)(A). See Williams v. Beemiller Inc., 527 F.3d 259, 265 (2d Cir. 2008) (holding that a magistrate
judge may not make an order that is “functionally equivalent to an order of dismissal”) (internal
quotation marks omitted). Although under 28 U.S.C. § 636(b)(1)(B), a magistrate judge may submit
“recommendations for the disposition, by a judge of the court,” of dispositive motions, such
recommendations are subject to de novo review by the presiding district judge. Id. § 636(b)(1)(C). See
generally Kiobel v. Millson, 592 F.3d 78, 106 (2d Cir. 2010) (Jacobs, J., concurring) (“When a district
court refers a matter to a magistrate judge under § 636(b), the extent of the magistrate judge’s
authority turns generally on whether the matter is ‘dispositive.’ As to nondispositive matters, the
magistrate judge may rule, but as to dispositive matters, the magistrate judge may do no more than
recommend. In turn, the district court reviews a magistrate judge’s order on nondispositive matters
under a clearly erroneous standard, but reviews its recommendation de novo.” (internal quotation
marks and citations omitted)).

          The District Court adopted the Magistrate Judge’s ruling in an order dated November 30,
2007. In so doing, the District Court applied the standard of review for district courts evaluating a
magistrate judge’s ruling on a nondispositve matter under 28 U.S.C. 636(b)(1)(A). See Jean-Laurent v.
Wilkerson, 523 F. Supp. 2d 386, 387 (S.D.N.Y. 2007) (“A district court evaluating a Magistrate
Judge’s order with respect to a matter not dispositive of a claim or defense may adopt the Magistrate
Judge’s findings and conclusions as long as the factual and legal bases supporting the ruling are not
clearly erroneous or contrary to law.” (emphasis added)). Under the circumstances, the District Court
should have conducted a de novo review of the Magistrate Judge’s ruling effectively dismissing Jean-


(emphases added). Under § 50-k(3):

                The city shall indemnify and save harmless its employees in the amount
                of any judgment obtained against such employees in any state or federal
                court . . . provided that the act or omission from which such judgment
                or settlement arose occurred while the employee was acting within the
                scope of his public employment and in the discharge of his duties and
                was not in violation of any rule or regulation of his agency at the time
                the alleged damages were sustained; the duty to indemnify and save
                harmless prescribed by this subdivision shall not arise where the injury
                or damage resulted from intentional wrongdoing or recklessness on the
                part of the employee.

                                                8
Laurent’s state-law claims. Because Jean-Laurent is “entitled to the District Court’s de novo review of
the Magistrate Judge’s” ruling, Beemiller, 527 F.3d at 266, we vacate the District Court’s November
30, 2007, order and remand for it to undertake such a review.

         In so doing, we note in passing that the interplay between § 50-e(1) and § 50-k(3) is quite
complicated and there does not appear to be clear authority addressing whether Jean-Laurent was
obliged to file a notice of claim under the circumstances presented here. Whereas the question of
whether a City employee is entitled to representation by the Corporation Counsel under § 50-k(2) is
for the Corporation Counsel to decide in the first instance, there is no such role accorded to the
Corporation Counsel with respect to the question of indemnification under § 50-k(3). See Hassan v.
Fraccola, 851 F.2d 602, 603–05 (2d Cir. 1988) (discussing distinction between the duty to defend and
the duty to indemnify); Banks v. Yokemick, 214 F. Supp. 2d 401, 408 (S.D.N.Y. 2002) (observing that
the language of § 50-k(3) “implies that, barring a settlement before trial, a final indemnification
determination will await a judgment against the employee on the merits in the underlying action”
and, “unlike § 50-k(2), does not explicitly indicate who conducts the requisite inquiry”).

        We need not resolve this question on the record before us. Instead, we hold that the
Magistrate Judge exceeded his authority under 28 U.S.C. § 636(b)(1)(A) by effectively dismissing
Jean-Laurent’s state-law claims and the District Court applied the incorrect standard in reviewing the
Magistrate Judge’s decision. Accordingly, we vacate the District Court’s decision of November 30,
2007, adopting the Magistrate Judge’s reasoning under a “clearly erroneous” standard of review, and
remand to the District Court for de novo reconsideration of the Magistrate Judge’s March 8, 2007,
order in light of the discussion above and any additional arguments of the parties.5




                                          CONCLUSION
        To summarize:

               (1) We affirm the District Court’s judgment of July 6, 2006, dismissing Jean-
Laurent’s claims against defendants Walsh, Fowler, and Colds;




        5
          We note as well, that the District Court on remand may, in its discretion, decline to exercise
supplemental jurisdiction over the state law claims. See 28 U.S.C. § 1367(c) (“The district courts may
decline to exercise supplemental jurisdiction over a claim . . . if . . . the claim raises a novel or
complex issue of State law . . . .”).

                                                9
               (2) We affirm the District Court’s judgment of March 24, 2008, dismissing Jean-
Laurent’s claims against Commissioner Horn and the City under Monell;

                 (3) We find no error in the District Court’s decision to prevent Jean-Laurent from
trying his purported claims of religious discrimination under the First Amendment and 42 U.S.C. §§
2000cc-1, et seq.;

                (4) We find no error in the District Court’s order precluding Jean-Laurent from
calling inmate Ramon as a witness at trial; and

              (5) We vacate the District Court’s orders adopting the Magistrate Judge’s decision
denying Jean-Laurent leave to file a second amended complaint to the extent it raised any state-law
claims and remand for de novo reconsideration of the Magistrate Judge’s order of March 8, 2007;

         Accordingly, for the foregoing reasons, the judgment of the District Court is hereby
AFFIRMED in part, with respect to the dismissal of the claims against defendants Walsh, Fowler,
Colds, Horn, and the City of New York; VACATED in part, with respect to its dismissal of
plaintiff’s state-law claims; and REMANDED for further proceedings consistent with this ruling.

         Upon remand, the District Court may, in its discretion, decline to exercise supplemental
jurisdiction over the remaining state-law claims. We express no view on that question.

                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




                                               10
