Foreseeability and Realistic Opportunity to Intervene: Second Circuit Reaffirms Deliberate Indifference Pleading Standards and Duplicative Official-Capacity Claims in Montgomery v. Orange County

Introduction

In Montgomery v. Orange County, No. 25-180 (2d Cir. Oct. 15, 2025) (summary order), the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of an incarcerated plaintiff’s 42 U.S.C. § 1983 claims arising from an assault by another inmate at the Orange County Correctional Facility (OCCF). The plaintiff, Isaiah Montgomery, alleged that a fellow inmate heated water in a microwave in a recreation room and poured it on him, causing injury. He sued Orange County, Sheriff Carl E. DuBois, and Corrections Officer Andrew Hankins for failing to protect him, asserting Eighth and Fourteenth Amendment deliberate indifference claims.

The appeal challenged a Rule 12(b)(6) dismissal entered by the Southern District of New York (Karas, J.). The Second Circuit, in a nonprecedential summary order, concluded that Montgomery’s complaint did not plausibly allege that either Officer Hankins or Sheriff DuBois knew, or should have known, of a substantial risk that the attack would occur, nor that Hankins had time to intervene once the attack began. The panel also affirmed dismissal of official-capacity claims as duplicative of the claim against the municipality under Monell and held the municipal claim rose and fell with the policymaker claim against Sheriff DuBois.

Although the order has no precedential effect, it can be cited under Federal Rule of Appellate Procedure 32.1 and the Second Circuit’s Local Rule 32.1.1. The decision offers a clear, practically valuable restatement of deliberate indifference pleading requirements in inmate-on-inmate assault cases, the “split-second” exception to failure-to-intervene theories, and the redundancy of official-capacity claims when the municipality is named.

Summary of the Opinion

Standard of review: De novo review of the Rule 12(b)(6) dismissal, accepting all well-pleaded facts as true and drawing reasonable inferences for the plaintiff (citing Mazzei v. Money Store and Green v. DOE of NYC).
Official-capacity claims dismissed as duplicative: The court affirmed dismissal of official-capacity claims against Sheriff DuBois and Officer Hankins as duplicative of the claim against Orange County under Monell (citing Monell; Tanvir v. Tanzin; Hafer v. Melo; Reynolds v. Giuliani).
Individual-capacity claims fail on deliberate indifference: Applying the two-prong Farmer v. Brennan framework (objective risk and subjective knowledge), the court held Montgomery failed to allege facts that either defendant actually drew, or should have drawn, the inference of a substantial risk of the specific attack. For Hankins, the court additionally found no realistic opportunity to intervene during a rapidly unfolding assault (citing O’Neill v. Krzeminski; Williams v. Vincent).
Eighth vs. Fourteenth Amendment standards: While pretrial detainees proceed under the Due Process Clause (Darnell v. Pineiro) and convicted prisoners under the Eighth Amendment (Farmer), the complaint failed under either standard because it lacked facts showing actual or constructive knowledge of a substantial risk.
Municipal liability tethered to policymaker knowledge: The claim against Orange County rose and fell with the deliberate indifference of its alleged final policymaker, Sheriff DuBois (citing Torcivia v. Suffolk County). Because DuBois was not plausibly alleged to have known or should have known that unsupervised microwave access posed a substantial risk of the attack, the Monell claim failed.
Disposition: Judgment affirmed in full.

Analysis

Precedents Cited and How They Shaped the Decision

Monell v. Department of Social Services, 436 U.S. 658 (1978): Establishes that municipalities are liable only for constitutional violations caused by a policy, practice, or custom, and that official-capacity claims are effectively suits against the municipality. Guided the dismissal of official-capacity claims as duplicative and framed the analysis of the county’s liability.
Hafer v. Melo, 502 U.S. 21 (1991), Tanvir v. Tanzin, 894 F.3d 449 (2d Cir. 2018), aff’d, 592 U.S. 43 (2020), and Reynolds v. Giuliani, 506 F.3d 183 (2d Cir. 2007): Reinforce that official-capacity suits target the governmental entity, not the individual, confirming duplicativeness when the municipality is already named.
Farmer v. Brennan, 511 U.S. 825 (1994): The touchstone for Eighth Amendment deliberate indifference: plaintiffs must plead (1) an objectively serious risk and (2) a subjective mental state—officials knew of and disregarded the risk. This set the core framework for the individual-capacity claims against Hankins and DuBois.
Vega v. Semple, 963 F.3d 259 (2d Cir. 2020): Restates Farmer’s two-prong test in the Second Circuit and underscores the need for facts supporting both the objective and subjective prongs at the pleading stage.
Darnell v. Pineiro, 849 F.3d 17 (2d Cir. 2017): For pretrial detainees under the Fourteenth Amendment, the mens rea is objective recklessness—officials knew or should have known of an excessive risk. The panel noted that even under this more lenient standard for pretrial detainees, Montgomery’s allegations did not suffice.
O’Neill v. Krzeminski, 839 F.2d 9 (2d Cir. 1988): Establishes that when an attack unfolds in “rapid succession,” a bystander officer may lack a realistic opportunity to intervene, defeating failure-to-intervene claims. Applied to the rapidity of the hot-water assault.
Williams v. Vincent, 508 F.2d 541 (2d Cir. 1974): Cited for the principle that split-second conduct in the face of sudden danger does not plausibly support failure-to-protect liability.
Torcivia v. Suffolk County, 17 F.4th 342 (2d Cir. 2021): Confirms that where municipal liability turns on the conduct of a final policymaker, the Monell claim rises or falls with the policymaker’s constitutional violation. Used to dispose of the claim against Orange County once the allegations against Sheriff DuBois failed.
Mazzei v. Money Store, 62 F.4th 88 (2d Cir. 2023), and Green v. DOE of NYC, 16 F.4th 1070 (2d Cir. 2021): Provide the 12(b)(6) de novo review standard and the obligation to accept factual allegations as true while requiring plausible inferences.

Legal Reasoning

The court’s analysis proceeded in three steps: disposing of duplicative official-capacity claims, assessing individual-capacity claims under deliberate indifference principles, and then addressing municipal liability through the alleged policymaker.

1) Official-Capacity Claims Are Duplicative of Monell Claims

The panel affirmed that official-capacity claims against Sheriff DuBois and CO Hankins were redundant because Orange County—the real party in interest—was also named. This reflects the well-settled principle that an official-capacity suit is effectively a suit against the government entity itself. Dismissal streamlines the litigation to focus on the Monell claim against the county and the individual-capacity claims.

2) Individual-Capacity Deliberate Indifference: Knowledge and Foreseeability Are Key

Applying Farmer and its Second Circuit articulation in Vega, the court focused on the subjective component: Did the defendants know, or should they have known (for any Fourteenth Amendment aspect), that a substantial risk of serious harm existed and fail to act?

Officer Hankins: The complaint did not allege facts showing Hankins was aware of, or drew, an inference of a substantial risk that the other inmate would heat water in the microwave to attack Montgomery. The court also underscored the temporal dimension: the assault unfolded too quickly for Hankins to have a realistic chance to intervene, citing O’Neill’s “rapid succession” principle and Williams’s “split-second” recognition of danger. Absent prior warnings, threats, or specific red flags, and given the suddenness of the event, the failure-to-protect and failure-to-intervene theories were implausible at the pleading stage.
Sheriff DuBois (as an individual): The complaint lacked allegations that DuBois knew, or should have known, that allowing inmates access to microwaves or heating devices in these circumstances created a substantial risk of inmate-on-inmate scalding assaults. Without allegations of prior similar incidents, policy notices, grievances, safety audits, or other indicators that would put a policymaker on notice, the subjective/recklessness element was not plausibly pleaded.

The panel noted that Montgomery’s status spanned both pretrial detention and post-conviction incarceration. Under Darnell, pretrial detainees need only show officials knew or should have known of an excessive risk (objective recklessness), while Farmer requires actual subjective knowledge for convicted prisoners. The court expressly concluded that the claim would fail under either standard for want of factual allegations supporting knowledge or constructive knowledge.

3) Municipal Liability Rises and Falls with the Policymaker Claim

Because Montgomery predicated Orange County’s liability on the actions or omissions of its alleged final policymaker (the Sheriff in his capacity over OCCF), the court applied Torcivia to hold that the municipal claim “rises and falls” with the Sheriff’s deliberate indifference. Having found the allegations against DuBois insufficient, the Monell claim likewise failed. The order does not explore whether an independent unconstitutional policy or custom existed apart from the Sheriff’s knowledge; the theory presented and analyzed was tethered to the policymaker’s awareness of risk.

Impact and Practical Implications

While nonprecedential, this decision has significant persuasive weight for practitioners litigating failure-to-protect claims involving inmate-on-inmate assaults, especially those using common-area implements such as microwaves:

Pleading knowledge is critical: Plaintiffs must move beyond general hazard assertions (e.g., “microwaves can heat water”) and allege facts supporting foreseeability of the specific risk: prior similar incidents at the facility; complaints, grievances, or reports warning of misuse; known conflicts or threats between the assailant and victim; classification or supervision decisions ignored despite red flags; or policies deviating from established safety norms.
Rapid attacks can defeat failure-to-intervene claims: Absent allegations that a supervising officer had sufficient time to perceive and respond, courts will rely on O’Neill and similar authority to reject failure-to-intervene theories where events unfold in seconds.
Official-capacity claims add redundancy without benefit: Naming both the municipality and officials in their official capacities is typically duplicative. Plaintiffs should either target the municipality (Monell) or seek distinct injunctive relief that an official-capacity claim uniquely advances.
Monell theories anchored to a final policymaker require policymaker notice: When the municipal claim is premised on a policymaker’s deliberate indifference, plaintiffs must allege facts showing the policymaker’s knowledge or objective recklessness. Alternatively, plaintiffs can plead a broader policy, custom, or practice independent of personal knowledge (e.g., widespread practices, failure-to-train with a pattern of similar violations) but must support those theories with concrete facts.
Fourteenth Amendment leniency has limits: Even under Darnell’s “knew or should have known” standard, courts will not infer knowledge without factual content. Bare allegations that a condition could be dangerous will not suffice; link the danger to known, specific risks in context.

Administratively, correctional facilities may take comfort that providing access to microwaves, without more, is not inherently unconstitutional. But facilities should proactively document risk assessments, training, supervision protocols, and responses to any prior incidents; the presence of notice in the record could transform a similar case in the future.

Complex Concepts Simplified

Deliberate indifference (Eighth Amendment): Liability turns on two parts: (1) an objectively serious risk and (2) the official’s subjective awareness of that risk and disregard of it. It’s not enough that a condition could be dangerous; the defendant must have actually appreciated the risk and ignored it.
Deliberate indifference (Fourteenth Amendment pretrial detainees): The second prong is objective recklessness: the official knew or should have known of an excessive risk. Actual knowledge isn’t required, but it still demands facts supporting foreseeability.
Failure to intervene: Officers can be liable for failing to stop harm only if they had a realistic opportunity to do so. If an attack happens in “rapid succession,” there is often no time to intervene, so liability doesn’t attach.
Official-capacity vs. individual-capacity suits: Official-capacity suits are essentially suits against the government entity. Individual-capacity suits target the person’s own conduct and require personal involvement and the requisite mental state.
Monell municipal liability: A municipality is not liable just because it employs a wrongdoer. Plaintiffs must show a policy, custom, or practice (or action by a final policymaker) caused the constitutional violation.
Final policymaker: An official whose decisions represent government policy for the issue at hand. If the municipal claim is tethered to that policymaker, it rises or falls with the policymaker’s constitutional liability.
Rule 12(b)(6) pleading standard: The complaint must plausibly state a claim with facts—not conclusions—supporting each element. Courts accept factual allegations as true but reject mere labels and threadbare recitals.

Practical Guidance for Future Cases

For plaintiffs:
- Allege specific facts showing foreseeability: prior similar incidents with microwaves or hot liquids; documented warnings; classification decisions that ignored known risks; explicit threats; grievances reporting misuse; or safety assessments noting the hazard.
- Detail the timeline of the incident to show a realistic opportunity to intervene—seconds vs. minutes matters greatly.
- When pursuing Monell liability, consider independent policy or practice theories (e.g., patterns of similar incidents, failure to train or supervise) supported by concrete examples, not just the single incident.
- Avoid duplicative official-capacity claims if the municipality is named unless you seek unique, forward-looking relief.
For municipalities and correctional officials:
- Maintain and document risk assessments, training, and supervision protocols for common-area devices (microwaves, hot-water dispensers).
- Respond to and log incidents, complaints, or grievances about misuse of heating devices. Patterns of notice matter.
- Ensure staffing and line-of-sight or monitoring protocols reflect foreseeable risks in recreation areas.

What the Court Did Not Decide

The court did not resolve whether access to microwaves in a jail recreation room satisfies Farmer’s objective prong; it found dismissal appropriate on the knowledge/foreseeability prong.
The court did not address any independent failure-to-train or widespread custom theories for Monell liability beyond the policymaker-knowledge pathway presented.
The court did not discuss the availability of leave to amend; it affirmed the dismissal as entered by the district court.

Conclusion

The Second Circuit’s summary order in Montgomery v. Orange County reinforces core doctrines that regularly determine the viability of inmate-on-inmate assault claims at the pleading stage. First, official-capacity claims are duplicative where the municipality is named under Monell. Second, deliberate indifference requires facts supporting foreseeability and knowledge (or objective recklessness for pretrial detainees), not just a generalized possibility of harm. Third, failure-to-intervene claims must surmount the “rapid succession” barrier by alleging a realistic opportunity to act. Finally, municipal liability tethered to a final policymaker rises and falls with the sufficiency of allegations against that policymaker.

As a practical matter, plaintiffs should build the record of notice—prior incidents, warnings, and specific risks—while defendants should document risk mitigation and responses. Though nonprecedential, the order provides a clear, persuasive roadmap for courts and counsel confronting similar failure-to-protect and Monell claims, particularly those arising from the use of common-area heating devices in correctional settings.