ZUK v. ONONDAGA COUNTY

¶ 137, Ex. 6; Doc. 91, ¶ 137.) Conversely, he testified "as the incident took place you gotta understand that I was in a trance." (Doc. 84, ¶ 138, Ex. 6; Doc. 91, ¶ 138.) When Williams was asked how he would hide his facial wounds, he responded "I have no — you know, that statement that [Senior Officer Murray] made was surprising to me. . . . you can't hide this. . . . This is plain view. You can't hide this." (Doc. 84, ¶ 139, Ex. 6; Doc. 91, ¶ 139.) Williams confirmed that Murray called for assistance and when he was asked why Murray would call for assistance if Williams was not to snitch, he replied "I don't have no idea." (Doc. 84, ¶ 140, Ex. 6; Doc. 91, ¶ 140.)

Although Gabrielson and Edinger testified that Williams was designated as a member of the Bloods gang, Gabrielson also identified him as an associate of the Bloods gang, explaining that he was "not a full member but somebody that hangs around with them and does their work for them trying to become a member. (Doc. 84, ¶¶ 84, 85, Exs. 7, 18) Conversely, Williams testified that he was attacked by a member of the Bloods and felt threatened by them. (Doc. 91, ¶ 84.)

Both Gabrielson and Edinger also testified that Fulton is a member of the Bloods gang. (Doc. 84, ¶ 86, Ex. 7; Doc. 91, ¶ 86.) Gabrielson testified that Fulton was the leader of the New York Bloods and he was not concerned about housing Williams and Fulton together because Williams "really looked up to [Fulton] due to the fact that [Williams] was an associate of the New York Bloods. And he seemed like a puppet for [Fulton]." (Doc. 84, ¶¶ 87, 88, Ex. 7.) Williams's testimony contradicts Gabrielson's testimony in that Williams stated that he did not know Fulton was from New York until after they were celled together. (Doc. 91, ¶ 88, Ex. 6.) Specifically, the first day they were housed together Williams learned that Fulton was a member of a gang, that he was from New York, and that he was "a Blood or something like that." (Doc. 84, ¶¶ 89, 90, Ex. 6; Doc. 91, ¶¶ 89, 90.)

Although Williams testified that "I wasn't afraid to be in the cell with an individual that I didn't have a problem with. . . . I wasn't afraid to be in a cell with him . . . I'm a man. You a man. So I'm not afraid," he also testified that he felt his life was threatened if he was housed with a member of the New York gang. (Doc. 84, ¶ 91, Doc. 91, ¶ 91.) While he also felt his "life would be in danger [if housed] in the cell with a guy from New York or D.C.," he admitted because Fulton showed no hostility toward him, he felt "that everything [was] all right." (Doc. 84, ¶ 92, Ex. 6, Doc. 91, ¶ 92.) Even though he had previously indicated that housing him with a member of the New York gang would be a threat to his life, he did not say anything about being housed with Fulton, explaining "I would have if it had been a problem occurred and I felt my life was in danger and hostile. Of course, I would have made a move to try to get out the cell." (Doc. 84, ¶ 93, Ex. 6, Doc. 91, ¶ 93.) In describing his relationship with Fulton, Williams testified "we never had a disturbance or a (sic) argument or a disagreement or any attempt to see to get in an assault or fight or anything of that nature" and "[t]here was no disagreement, no argument, not even type of signs of a threat among each other." (Doc. 84, ¶¶ 94-95, Ex. 6.) Gabrielson confirmed that these two inmates lived together without incident until November 27, 2005. (Doc. 84, ¶ 96, Ex. 16.) However, Williams testified that the members of the D.C. and New York gangs were trying to "rock [him] to sleep" so that he would not be ready for an attack. (Doc. 91, ¶ 96, Ex. 1.)

The BOP's Office of Internal Affairs ("OIA") conducted an investigation regarding Williams' allegations that Murray did not try to stop Fulton from assaulting him, failed to call for assistance, and was aware of a problem between he and Fulton. (Doc. 84, ¶ 142, Ex. 27; Doc. 91, ¶ 142.) OIA concluded that there was no evidence to support Williams' claims that Murray failed to protect Williams or call for assistance in a timely manner. Doc. 84, ¶ 143, Ex. 27; Doc. 91, ¶ 143.) OIA reported its conclusion and a summary of the statements taken in the investigation to Warden Troy Williamson on December 26, 2006. (Doc. 84, ¶ 144, Ex. 28; Doc. 91, ¶ 144.)

As the Warden of USP Lewisburg, Smith was bound by BOP policy, but it was not his responsibility to enact it. (Doc. 84, ¶ 145, Ex. 8; Doc. 91, ¶ 145.) Smith was responsible for the overall operation of USP Lewisburg. (Doc. 84, ¶ 146, Ex. 8; Doc. 91, ¶ 146.) He was not involved in the day to day operation of the SHU, specifically, in cell or cellmate assignments. (Doc. 84, ¶ 147, Ex. 8; Doc. 91, ¶ 147.) Smith testified if an inmate has a fight with a gang that is associated with New York, it is impossible to separate that inmate from everybody from New York just because he had a fight with somebody else from a gang associated with New York. (Doc. 84, ¶ 149, Ex. 29; Doc. 91, ¶ 149.) Smith further testified that he has seen "inmates from two separate gangs g[e]t into a fight and were back out on the compound after their disciplinary sanctions." (Doc. 84, ¶ 150, Ex. 29; Doc. 91, ¶ 150.)

In 2005, Edinger was a special investigative technician and gang specialist. Edinger testified that he has never been a SHU lieutenant. (Doc. 84, ¶¶ 151, 153 (, Ex. 18; Doc. 91, ¶¶ 151, 153.) He disputes that he was responsible for placing Williams in the recreation cage on July 28, 2005. (Doc. 84, ¶ 152, Ex. 6.) He further testified that he had no involvement in cell assignments. (Doc. 84, ¶ 154, Ex. 18; Doc. 91, ¶ 154.) Although Edinger testified that he did not have any communications with Williams and that he was not aware that Williams was afraid of some D.C. gangs and New York gangs, Williams testified that he informed Edinger that he wanted to be housed in a different cell because of concerns for his safety and the possibility of being attacked by New York and D.C. gang members. (Doc. 84, ¶¶ 155-56, Ex. 18; Doc. 91, ¶¶ 155-56, Ex. 1.) Edinger also testified that "[c]ity, state doesn't really have anything to do with a person being in a gang." (Doc. 84, ¶ 157, Ex. 18; Doc. 91, ¶ 157.) He further testified that he would not "classify someone as being in a New York gang or a D.C. gang[,]" explaining "[t]hat's location, and that has nothing to do with gangs." (Doc. 84, ¶ 158, Ex. 18; Doc. 91, ¶ 158.) He explained that an inmate who has a fight with another inmate from D.C. is not a reason to separate that inmate from every inmate from D.C. (Doc. 84, ¶ 159, Ex. 18; Doc. 91, ¶ 159.) Additionally, Edinger explained that Bloods from all over the United States have been housed at USP Lewisburg and that USP Lewisburg houses New York Bloods, St. Louis Bloods, Texas Bloods, and California Bloods, and "[t]hey all run together . . . [s]o does the location of where they're from dictate anything, not really." (Doc. 84, ¶¶ 160-61, Ex. 18; Doc. 91, ¶¶ 160-61.) He also explained that D.C. Bloods do not fight New York Bloods. (Doc. 84, ¶ 162, Ex. 18; Doc. 91, ¶ 162.)

A review of the BOP's administrative remedy exhaustion records regarding Williams reveals that he completed the administrative remedy process regarding the November 27, 2005 incident. (Doc. 84, ¶ 164, Ex. 30; Doc. 91, ¶ 164.) However, he did not attempt to file any requests for administrative remedies concerning either the July 18, 2005 incident or July 28, 2005 incident. (Doc. 84, ¶ 165, Ex. 30; Doc. 91, ¶ 165.) Williams conceded he did not complete a BP-8 for the July 18, 2005 incident. (Doc. 84, ¶ 166, Ex. 6; Doc. 91, ¶ 166.) Williams also conceded he did not complete a BP-8 for the July 28, 2005 incident, despite being advised to prepare a BP-8: "they were like, you know, write a BP-8 and stuff like that. I never wrote a BP-8." (Doc. 84, ¶ 167, Ex. 6; Doc. 91, ¶ 167.)

When Williams was asked who was involved in the conspiracy, he admitted "I'm not aware of that." (Doc. 84, ¶ 168, Ex. 6.) Williams further admitted that he did not write his complaint and he received assistance from other inmates. (Doc. 84, ¶ 169, Ex. 6; Doc. 91, ¶ 169.) He explained that someone else prepared his complaint: "that's something he probably put together." (Doc. 84, ¶ 170, Ex. 6; Doc. 91, ¶ 170.) He also testified that "there is no conspiracy claim . . . [t]hat I know of." (Doc. 84, ¶ 171, Ex. 6.)

With regard to Williams' due process claim, he could not testify as to why his due process rights were violated, stating "I don't know. I don't know." (Doc. 84, ¶ 172, Ex. 6.)

Williams testified that his equal protection rights were violated because he "wasn't separated from other individuals from D.C. and New York. . . . I wasn't housed by myself." (Doc. 84, ¶ 173, Ex. 6; Doc. 91, ¶ 173.) Williams claims that he was treated differently than Fulton because Williams saw Fulton in "a rec[reation] cage by hisself." (Doc. 84, ¶ 174, Ex. 6; Doc. 91, ¶ 174.)

II. Standard of Review

Through summary adjudication the court may dispose of those claims that do not present a "genuine issue as to any material fact" and for which a jury trial would be an empty and unnecessary formality. See FED. R. CIV. P. 56(c). The burden of proof is upon the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); Fed.R.Civ.P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986);Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see also FED. R. CIV. P. 56(c), (e). Only if this threshold is met may the cause of action proceed. Pappas, 331 F. Supp. 2d at 315.

III. Discussion

A. Administrative Remedies

The Prison Litigation Reform Act (PLRA) requires prisoners to present their claims through an administrative grievance process before seeking redress in federal court. The act specifically provides as follow:

No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a). Prisoners must exhaust administrative remedies as to any claim that arises in the prison setting, regardless of any limitations on the kind of relief that may be gained through the grievance process. See Porter v. Nussle, 534 U.S. 516, 532 (2002); Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001). "[I]t is beyond the power . . . of any . . . [court] to excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis." Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000) (quoting Beeson v. Fishkill Corr. Facility, 28 F. Supp. 2d 884, 894-95 (S.D.N.Y. 1998) (citing Weinberger v. Salfi, 422 U.S. 749, 766 (1975)). The PLRA "completely precludes a futility exception to its mandatory exhaustion requirement." Nyhuis, 204 F.3d at 71. The PLRA also mandates that inmates "properly" exhaust administrative remedies before filing suit in federal court. Woodford v. Ngo, 126 S.Ct. 2378, 2387 (2006). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 2386. Such requirements "eliminate unwarranted federal-court interference with the administration of prisons, and thus seeks to `affor[d] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.'"Id. at 2387 (quoting Nussle, 534 U.S. at 525)).

A prisoner does not have to allege in his complaint that he has exhausted administrative remedies. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002). Failure to exhaust available administrative remedies is an affirmative defense that must be pleaded and proven by the defendants. Id.; see also Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002).

Defendants contend that Williams failed to take any steps to complete the administrative remedy process with respect to either of the July 2005 incidents. In opposition, Williams states that "Defendants engaged in one continuous series of unlawful conduct that culminated when Williams was attacked by a cellmate on November 27, 2005. As conceded by Defendants, Williams has exhausted all available administrative remedies with respect to the November attack. Therefore, all of Williams' Bivens claims, which did not come to full fruition until the November attack, are properly before this Court." (Doc. 88, at p. 7.) It is undisputed that Williams exhausted his administrative remedies with respect to the claim that defendants failed to protect him from members of D.C. and New York gangs. Defendants motion will be denied in this respect.

B. Statute of Limitations

The statute of limitations for a Bivens claim, as for claims arising under 42 U.S.C. § 1983, is borrowed from the forum state's personal injury statute. Owens v. Okure, 488 U.S. 235, 250 (1989); Wilson v. Garcia, 471 U.S. 261, 276 (1985); see Kost v. Kozakiewicz, 1 F.3d 176, 190 (3d Cir. 1993). In Pennsylvania, the statute of limitations for personal injury actions is two years. 42 PA.C.S.A. § 5524. The statute of limitations "begins to run from the time when the plaintiff knows or has reason to know of the injury which is the basis of the Section 1983 action."Gentry v. Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir. 1991) (citations omitted.)

The principles and analysis applicable to § 1983 actions are equally applicable to Bivens-type actions. See Schrob v. Catterson, 948 F.2d 1402, 1408 (3d Cir. 1991) (". . . courts have generally relied upon the principles developed in the case law applying to § 1983 to establish the outer perimeters of a Bivens claim against federal officials.")

Defendants argue that "Williams' constitutional claim of `violent encounters' with members of D.C. and New York gangs prior to July 18, 2005 accrued prior to July 18, 2005 when such encounters occurred; thus, the limitations period expired sometime prior to July 18, 2007. Additionally, Williams' constitutional claim of a fight on July 18, 2005 accrued on the date of the fight, July 18, 2005; thus, the limitations period expired on July 18, 2007. This case began, at the earliest, upon the filing of the original complaint when Williams mailed it on July 26, 2007. (Ex. 1, Complaint (Doc. 1) at p. 15). Therefore, any claims of `violent encounters' prior to July 18, 2005 or on July 18, 2005 are time-barred." (Doc. 13, at p. 14-15.) In opposition, Williams argues that "while . . . he had several violent encounters with members of the New York and D.C. gangs prior to July 18, 2005, the Defendants' conduct for which Williams complains did not occur until after Defendants knew that Williams should be separated from members of the New York and D.C. gangs for safety reasons; this did not occur until after Williams was attacked by Long, a D.C. gang member, on July 18, 2005. The first time Defendants knowingly placed Williams into a cell where his safety was at risk was on July 27, 2005. Therefore, because Williams makes no claim occurring prior to or on July 18, 2005, any statute of limitations argument related thereto is futile." (Doc. 88, at 9.) The court agrees. Defendants summary judgment argument with respect to the statute of limitations is without merit.

C. Personal Involvement/ Respondeat Superior

Defendants argue that Smith is entitled to summary judgment based on his lack of personal involvement in conduct amounting to a constitutional violation. "A defendant in a civil rights action must have personal involvement in the alleged wrongs. . . . Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence." Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988); see also, Rizzo v. Goode, 423 U.S. 362 (1976); Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003). Thus, individual liability can be imposed under Section 1983 only if the state actor played an "affirmative part" in the alleged misconduct. Rode, supra. Alleging a mere hypothesis that an individual defendant had personal knowledge or involvement in depriving the plaintiff of his rights is insufficient to establish personal involvement. Rode, 845 F.2d at 1208.

Additionally, liability cannot be predicated solely on the operation of respondeat superior. Rizzo, 423 U.S. 362; Rode v. Dellarciprete, 845 F.2d at 1207. Therefore, to maintain a claim for supervisory liability, plaintiff "must show: 1) that the supervising official personally participated in the activity; 2) that the supervising official directed others to violate a person's rights; or 3) that the supervising official had knowledge of and acquiesced in a subordinate's violations." Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293 (3d Cir. 1997); Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995).

It is undisputed that William's counsel forwarded to Smith a letter on August 16, 2005, notifying him of the July 27, 2005 assault, and requesting that the matter be investigated and that measures be taken for the safety and well being of Williams. (Doc. 84 ¶ 75, Ex. 17.) Defendants' motion for summary judgment on this ground will be denied.

D. Eighth Amendment

The Eighth Amendment prohibits "cruel and unusual punishments." U.S. Const. amend. VIII. In the context of prisoner confinement, it is well-established that "the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Helling v. McKinney, 509 U.S. 25 (1993)). Not only must prison officials refrain from the use of excessive force against prisoners, see Hudson v. McMillan, 503 U.S. 1, 6-7 (1992), and ensure that prisoners receive adequate food, clothing, and medical care, Farmer, 511 U.S. at 832-33, but they must also "take reasonable measures to guarantee the safety of the inmates" vis-a-vis other inmates, Hudson v. Palmer, 468 U.S. 517, 526-27 (1984); see also Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997). As the Supreme Court has stated, "Being violently assaulted in prison is simply `not part of the penalty that criminal offenders pay for their offenses against society.'"Farmer, 511 U.S. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).

Thus, the Eighth Amendment places upon prison officials a duty to "take reasonable measures to protect prisoners from violence at the hands of other prisoners." Hamilton, 117 F.3d at 746 (quoting Farmer, 511 U.S. at 833). In order for a plaintiff to prove a constitutional violation in a failure-to-protect case, a claimant must demonstrate that: (1) he is "incarcerated under conditions posing a substantial risk of serious harm;" and (2) the prison officials acted with "deliberate indifference to his health and safety." Farmer, 511 U.S. at 834; see also Beers-Capital v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001);Hamilton, 117 F.3d at 746.

The court must conduct an objective analysis under the substantial risk prong of the inquiry, see Farmer, 511 U.S. at 834; Hamilton, 117 F.3d at 746, and as such, the inquiry ordinarily will not be satisfied by evidence of a single incident or isolated incidents, see Riley v. Jeffes, 777 F.2d 143, 147 (3d Cir. 1985). An objectively substantial risk of harm, however, may be "established by much less than proof of a reign of violence and terror." Id. (quoting Shrader v. White, 761 F.2d 975, 978 (4th Cir. 1985)).

In cases of prisoner incarceration, Eighth Amendment liability attaches only to the "unnecessary and wanton infliction of pain."Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). Thus, not only must a prisoner's conditions of incarceration be sufficiently serious, but prison officials must possess a "sufficiently culpable state of mind" in allowing such a condition to persist. Beers-Capital, 256 F.3d at 125. This second prong of the Eighth Amendment inquiry requires the court to analyze whether prison officials were, from a subjective standpoint, deliberately indifferent to an inmate's health or safety. Farmer, 511 U.S. at 834. Specifically, the question is whether an official consciously knew of and disregarded an excessive risk to the prisoner's well being. See Farmer, 511 U.S. at 840-44; Hamilton, 117 F.3d at 747. It is not enough to show that the prison official was "aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists." Farmer, 511 U.S. at 837. Rather, the prison official "must also draw the inference." Id. The official's actual knowledge may be proven by circumstantial evidence. Beers-Capital, 256 F.3d at 131.

The record demonstrates that there are issues of material fact with regard to the claim of whether defendants failed to protect Williams from members of D.C. gangs and N.Y. gangs which preclude the entry of summary judgment. This claim will proceed to trial at the convenience of the court.

Defendants alternatively argued that they are entitled to qualified immunity. (Doc. 37, at 27.) This argument is rejected. Qualified immunity, as the Supreme Court has explained, is the principle that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A prisoner's Eighth Amendment right to be protected against violence at the hands of another inmate is well-established; defendants' argument that they acted properly is a defense on the merits, not a qualified immunity defense. See Beers-Capitol, 256 F.3d at 142 n. 15.

E. Fourteenth Amendment Equal Protection

"The Equal Protection Clause commands that no State shall `deny to any person within its jurisdiction the equal protection of the laws.'" Vacco v. Quill, 521 U.S. 793, 799 (1997); U.S. Const. amend. XIV, § 1. This is not a command that all persons be treated alike, but, rather, a direction that all persons similarly situated be treated alike. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). "The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race," Whren v. United States, 517 U.S. 806, 813 (1996), or any other suspect classification. See, e.g., Bakke v. California Bd. of Regents, 438 U.S. 265, 291 (1978) ("the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color" and "racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination").

Williams testified that his equal protection rights were violated because he "wasn't separated from other individuals from D.C. and New York. . . . I wasn't housed by myself." (Doc. 84, ¶ 173, Ex. 6; Doc. 91, ¶ 173.) Williams claims that he was treated differently than Fulton because Williams saw Fulton in "a rec[reation] cage by hisself." (Doc. 84, ¶ 174, Ex. 6; Doc. 91, ¶ 174.) Instantly, Williams comes forward with no evidence that he was treated any differently from those who were similarly situated to him. The party adverse to summary judgment must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion and cannot survive by relying on unsupported assertions, conclusory allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989). Beyond his conclusory statements, Williams literally presents no evidence, documentary or otherwise, to support his equal protection claim. Consequently, defendants are entitled to an entry of summary judgment on the equal protection claim.

F. Conspiracy

In order to set forth a cognizable conspiracy claim, a plaintiff cannot rely on broad or conclusory allegations. D.R. by L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1377 (3d Cir. 1992); Rose v. Bartle, 871 F.2d 331, 366 (3d Cir. 1989); Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir. 1989). The Third Circuit has noted that a civil rights conspiracy claim is sufficiently alleged if the complaint details the following: (1) the conduct that violated the plaintiff's rights, (2) the time and the place of the conduct, and (3) the identity of the officials responsible for the conduct. Oatess v. Sobolevitch, 914 F.2d 428, 432 n. 8 (3d Cir. 1990). See also, Colburn v. Upper Darby Twp., 838 F.2d 663 (3d Cir. 1988).

The essence of a conspiracy is an agreement or concerted action between individuals. See D.R. by L.R., 972 F.2d at 1377; Durre, 869 F.2d at 545. A plaintiff must therefore allege with particularity and present material facts which show that the purported conspirators reached some understanding or agreement or plotted, planned and conspired together to deprive plaintiff of a protected federal right. See id.; Rose, 871 F.2d at 366. Where a civil rights conspiracy is alleged, there must be specific facts in the complaint which tend to show a meeting of the minds and some type of concerted activity. Deck v. Leftridge, 771 F.2d 1168, 1170 (8th Cir. 1985). A plaintiff cannot rely on subjective suspicions and unsupported speculation. Young, 926 F.2d at 1405 n. 16.

Defendants argue that Williams has done nothing more than present bare conclusory allegations of a conspiracy. The court agrees. Viewing the complaint in the light most favorable to Williams, he has failed to state a viable conspiracy claim against defendants. His allegations that defendants "did conspire to interfere with the civil, constitutional, and statutory rights of the plaintiff, through such overt and covert acts as herein above set forth to interfere and/or deprive the plaintiff of his Constitutional and Statutorily protected rights, equal privileges and immunities under the law," are conclusory, and do not meet the requirement that a civil rights conspiracy claim must contain specific facts that tend to show a meeting of the minds and concerted activity. (Doc. 1, at 11, ¶ VI.) As noted above, the party adverse to summary judgment cannot survive by relying on unsupported assertions, conclusory allegations, or mere suspicions. Williams, 891 F.2d at 460. Judgment will be entered in defendants' favor on the conspiracy claim will be granted.

G. Fifth Amendment Due Process

The Fifth Amendment provides as follows:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

U.S. Const. amend. V. Because the Fifth Amendment is not implicated by Williams's complaint, defendants will be granted summary judgment on Williams's due process claim.

IV. Conclusion

Based on the foregoing, defendants' motion for summary judgment (Doc. 79) will be will be granted in part and denied in part.

An appropriate order will issue.

ORDER

AND NOW, this 30th day of September, 2010, upon consideration of defendants' motion for summary judgment (Doc. 79), and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:

1. Defendants' motion (Doc. 79) is GRANTED IN PART and DENIED IN PART.

2. The motion is GRANTED with respect to plaintiff's Fourteenth Amendment equal protection, Fifth Amendment due process, and civil conspiracy claims. Entry of Judgment is DEFERRED pending final disposition of the matter.

3. The motion is DENIED with respect to plaintiff's Eighth Amendment failure to protect claim.

4. The matter will proceed to trial at the convenience of the court.

didates. (Dkt. No. 59, Attach. 40.)

At his disciplinary hearing, Plaintiff waived his right to an immediate due process hearing and was presented with a written reprimand for the violations. ( Compare Dkt. No. 59, Attach. 5, at ¶ 67 with Dkt. No. 59, Attach. 5, at ¶¶ 69-70.) Plaintiff objected to the reprimand, and chose to proceed to arbitration. ( Id.)

On February 26, 2005, Defendant Walsh promoted Deputy-Sheriff Joseph Bernardini, who had the same examination score as Plaintiff. (Dkt. No. 59, Attach. 40.) Three days earlier, on February 23, 2005, an arbitrator issued a decision requiring Defendant Walsh to issue a public apology to the deputy whom Plaintiff's wife had accused of having alcohol in his system during work.

In August of 2005, another Deputy-Sheriff Sergeant position became available. ( Compare Dkt. No. 59, Attach. 5, at ¶ 81 with Dkt. No. 72, at ¶ 81.) Again, Plaintiff was not selected for the promotion. ( Id.) Plaintiff subsequently met with a promotion panel member to discuss ways in which he could improve his chances for promotion. ( Compare Dkt. No. 59, Attach. 5, at ¶ 82 with Dkt. No. 72, at ¶ 82.)

In March of 2006, another Deputy-Sheriff Sergeant position became available. ( Compare Dkt. No. 59, Attach. 5, at ¶ 84 with Dkt. No. 72, at ¶ 84.) Plaintiff's score on the civil service examination was the second highest among eligible candidates. (Dkt. No. 59, Attach. 57.) Plaintiff was not promoted. (Dkt. No. 59, Attach. 5, at ¶ 84 with Dkt. No. 72, at ¶ 84.) Instead, a candidate who's examination score was tied for third among the eligible candidates was promoted. (Dkt. No. 59, Attach. 57.)

In May of 2006, two more positions for promotion became available. ( Compare Dkt. No. 59, Attach. 5, at ¶ 85 with Dkt. No. 72, at ¶ 85.) Though Plaintiff's examination score was still second among eligible candidates, two of the three candidates chosen for promotion had lower scores on the examination than Plaintiff. ( Id.; see also Dkt. No. 59, Attach. 59 [Relevant Pages of Onondaga County Dept. of Personnel Cert. of Eligibles, dated May 1, 2006].)

In June of 2007, another Deputy-Sheriff Sergeant position became available. ( Compare Dkt. No. 59, Attach. 5, at ¶ 139 with Dkt. No. 72, at ¶ 139.) Plaintiff was interviewed by the promotion panel for the position. ( Compare Dkt. No. 59, Attach. 5, at ¶ 140 with Dkt. No. 72, at ¶ 140.) During the interview, the promotion panel asked Plaintiff to discuss his supervisor's memorandum related to Ms. Holmes. ( Compare Dkt. No. 59, Attach. 5, at ¶ 141 with Dkt. No. 72, at ¶ 141.) Plaintiff, however, refused to do so, and was denied this promotion as well. ( Id.) Subsequently, Defendant Gonzalez offered Plaintiff the opportunity to discuss ways in which he could improve his chances of being promoted, but Plaintiff refused to speak with him, and did not ask to speak to anyone else. ( Compare Dkt. No. 59, Attach. 5, at ¶ 143-145 with Dkt. No. 72, at ¶ 143-145.) In August 2007, another Deputy Sheriff Sergeant-Custody position became available, but Plaintiff was not selected for the promotion. ( Id.)

This promotion panel was compromised of the following persons: Police Division Assistant Chief Botsford, Custody Division Chief Carbery, Assistant Chief Wasilewski, then-Lieutenant Brisson, and Captain Gonzalez. ( Compare Dkt. No. 59, Attach. 5, at ¶ 140 with Dkt. No. 72, at ¶ 140.)

Though Plaintiff disputes this fact, he acknowledges that he refused to discuss the topic any further in his deposition. (Dkt. No. 60, Attach. 24, at 135-136.)

The position of Deputy Sheriff Sergeant-Custody once again became available in October of 2007. ( Compare Dkt. No. 59, Attach. 5, at ¶ 146 with Dkt. No. 72, at ¶ 146.) Although Plaintiff was not selected for the promotion, he and certain other candidates were given the opportunity to interview for another Deputy Sheriff Sergeant-Custody position. ( Compare Dkt. No. 59, Attach. 5, at ¶ 147 with Dkt. No. 72, at ¶ 147.) As a result, Plaintiff and certain other candidates re-interviewed with the promotion panel in order to (1) provide the promotion panel with additional information not mentioned during the initial interview, and (2) advise the promotion panel on what they had been up to since originally interviewing for the position. ( Id.) At his interview, Plaintiff did not provide any additional information in support of his qualifications for the promotion. ( Id.) In December of 2007, May of 2008, and August of 2008, eligibility lists were certified, but Plaintiff was not selected for promotion. ( Compare Dkt. No. 59, Attach. 5, at ¶¶ 148, 149 with Dkt. No. 72, at ¶¶ 148, 149.)

E. Plaintiff's Grievances

On April 5, 2007, Plaintiff filed a charge of discrimination with the EEOC, alleging national-origin discrimination and retaliation. ( Compare Dkt. No. 59, Attach. 5, at ¶ 179 with Dkt. No. 72, at ¶ 179.) On April 13, 2007, the EEOC issued a Dismissal and Notice of Rights letter. ( Id.)

More specifically, Plaintiff alleged as follows: (1) he is a Brazilian male; (2) the issuance of the supervisor's memorandum following the incident with Ms. Holmes was based on lies; (3) he was not promoted because of that supervisor's memorandum; and (4) he was not promoted in retaliation for complaining about the written reprimand in 2005. (Dkt. No. 59, Attach. 90.)

In June of 2007, Plaintiff filed an internal discrimination and harassment complaint, alleging that he was discriminated against and harassed because of his national origin. The harassment portion of the complaint concerned the 2005 written reprimand based on his submission of late time sheets, and alleged that Defendant Gonzalez lied to and harassed him. ( Compare Dkt. No. 59, Attach. 5, at ¶ 114, 115 with Dkt. No. 72, at ¶ 114, 115.)

Plaintiff met with Assistant Chief Wasilewski to discuss the complaint. ( Compare Dkt. No. 59, Attach. 5, at ¶ 117 with Dkt. No. 72, at ¶ 117.) Assistant Chief Wasilewski asked Plaintiff to provide specific details about the allegations in order to enable him to conduct an investigation. ( Compare Dkt. No. 59, Attach. 5, at ¶¶ 118-119 with Dkt. No. 72, at ¶¶ 118-119.) Plaintiff, however, declined to do so, and instead requested that the matter be forwarded to the Division of Employee Relations. ( Compare Dkt. No. 59, Attach. 5, at ¶¶ 119-120 with Dkt. No. 72, at ¶¶ 119-120.)

Assistant Chief Wasilewski needed more information because the written reprimand was issued when Plaintiff was under the supervision of Caption Albanese, who, at the time of the meeting, was deceased. ( Compare Dkt. No. 59, Attach. 5, at ¶ 118 with Dkt. No. 72, at ¶ 118.)

On September 5, 2007, Plaintiff met with the Director of the Division of Employee Relations. ( Compare Dkt. No. 59, Attach. 5, at ¶ 121 with Dkt. No. 72, at ¶ 121.) However, Plaintiff chose not to proceed any further because (1) he was disappointed, (2) he had discussed with other employees how complaints were addressed, and (3) he had already commenced litigation. ( Id.)

IV. ANALYSIS

A. Plaintiff's Claim of National-Origin Discrimination Under Title VII Due to Issuance of Reprimand and Denial of Promotion

As stated above in Part I.A. of this Decision and Order, Plaintiff claims that Defendants discriminated against him based on his national origin, in violation of Title VII, by issuing him an unjustified written reprimand (for failing to submit his time sheets) and by wrongfully denying him a promotion to Deputy-Sheriff Sergeant on ten separate occasions. In support of their motion, Defendants argue as follows: (1) the claims against Defendants Walsh and Gonzalez, in their official capacity, should be dismissed; (2) Plaintiff failed to exhaust the mandatory administrative remedies before instituting this action in federal court, and therefore his Second-Amended Complaint should be dismissed; (3) Plaintiff's claims pursuant to Title VII are barred by the applicable statute of limitations; and (4) Plaintiff has failed to adduce admissible record evidence establishing a cause of action for national-origin discrimination, and therefore this claim should be dismissed. (Dkt. No. 59, Attach. 95, at 9.) Based on the current record, the Court accepts Defendants' first and fourth arguments, and therefore need not, and does not, consider Defendants' two other grounds for dismissal.

Though Plaintiff's Second-Amended Complaint asserts that he was denied promotions on fourteen (14) separate occasions, the record reflects only ten (10) occasions on which Plaintiff was denied a promotion.

1. Plaintiff's Claims Against Defendants Gonzalez and Walsh

"[O]fficial-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 n. 55 (1978). "To succeed on a claim against a municipal officer in their official capacity, the plaintiff `must still show that a [municipal] custom, policy or practice was the moving force behind the alleged constitutional violations.'" Carmody v. Village of Rockville Centre, 661 F. Supp.2d 299, 329 (E.D.N.Y. 2009) (quoting Escobar v. City of New York, 05-CV-3030, 2007 WL 1827414, at *3 [E.D.N.Y. June 24, 2007]). As a result, "[a] suit for damages against a municipal officer in their official capacity is the equivalent of a damage suit against the municipality itself." Escobar, 2007 WL 1827414, at *3 (citations omitted). "Based upon the understanding that it is duplicative to name both a government entity and the entity's employees in their official capacity, courts have routinely dismissed corresponding claims against individuals named in their official capacity as `redundant and an inefficient use of judicial resources.'" DeJean v. County of Nassau, 06-CV-6317, 2008 WL 111187, at *5 (E.D.N.Y. Jan. 8, 2008) (quoting Escobar, 2007 WL 1827414) (citing cases).

Because of the foregoing, Plaintiff's claims against Defendants Gonzalez and Walsh are "merely duplicative of the action against the [County]." Escobar, 2007 WL 1827414, at *3 (citing cases). For these reasons, Plaintiff's claims against these individual Defendants are dismissed. See Carmody, 661 F. Supp.2d at 329 (collecting cases).

2. Plaintiff's Claim Against Onondaga County

Employment discrimination claims are analyzed under the same burden-shifting framework of McDonnell Douglas. "To establish a prima facie case of employment discrimination under Title VII and the ADEA, a plaintiff must show that: (1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified for his position; (3) the plaintiff suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of discrimination." Deluca v. Bank of Tokyo-Mitsubishi UFJ, Ltd., 06-CV-5474, 2008 WL 857492, at *5 (S.D.N.Y. Mar. 31, 2008) (citing, inter alia, McDonnell Douglas v. Green, 411 U.S. 792, 802).

See, e.g., Hurd v. New York City Health Hosp. Corp., 07-CV-1250, 2008 WL 5120624, at *1 (2d Cir. Dec. 8, 2008).

"The Second Circuit has characterized the evidence necessary for the plaintiff to satisfy this initial burden as `minimal' and `de minimis.'" Zhao v. State Univ. of New York, 472 F. Supp.2d 289, 307 (E.D.N.Y. 2007) (citing Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 381 [2d Cir. 2001]).

"If the plaintiff meets his minimal burden of establishing a prima facie case, the burden of production then shifts to the defendant to offer a legitimate, nondiscriminatory rationale for the adverse employment action." Deluca, 2008 WL 857492, at *5 (citations omitted). "If the defendant articulates a legitimate reason for the action, the presumption of discrimination raised by the prima facie case drops out, and the plaintiff has the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision and that the plaintiff's membership in a protected class was." Id. (citations omitted). "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

a. Written Reprimand

On February 15, 2005, progressive discipline was sought against Plaintiff for failing to submit his time sheets in violation of Part 1.1 and 1.11 of the OCSO Duty Manual. Plaintiff previously received instruction on submitting his time sheets in accordance with OCSO policy, and received a supervisor's memorandum indicating that his failure to properly submit his time sheets in the future would result in progressive discipline.

Plaintiff argues that the written reprimand was issued in a discriminatory manner based on the fact that (1) "no other deputy had ever received a written reprimand for receiving time sheets late," (2) "other deputies . . . were similarly situated [to him,] but [he] was the only one of Brazilian nation[al] origin," and (3) the written reprimand was issued, pursuant to OCSO policy, at the time that he elected to pursue arbitration, resulting in his "[attending] arbitration guilty as charged." (Dkt. No. 60, at 12, 17, 18.)

As an initial matter, it is undisputed that Plaintiff is able to satisfy the first three prongs of his prima facie case for discriminatory discharge under the McDonnell Douglas analysis. Having said that, the Court finds that he has failed to establish a prima facie case of discrimination arising from Defendants' issuance of a written reprimand based on his failure to comply with OCSO's policy regarding time sheet submissions. Instead, Plaintiff has merely alleged, in conclusory fashion, that, because "no other deputy had ever received a written reprimand for receiving time sheets late," and he was the only deputy of Brazilian decent, his receipt of the written reprimand must have been because of his national origin. This is not enough.

The Court is mindful of the fact that "[a] showing of disparate treatment-that is, a showing that an employer treated plaintiff `less favorably than a similarly situated employee outside his protected group'-is a recognized method of raising an inference of discrimination for the purposes of making out a prima facie case." Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003). However, "[a] plaintiff alleging discrimination based on disparate disciplinary treatment must demonstrate, in applying the McDonnell Douglas test, that he was subject to an adverse employment action `and that a similarly situated employee not in the relevant protected group received better treatment.'" Carter v. New Venture Gear, Inc., 310 F. App'x 454 (2d Cir. Feb. 18, 2009) (quoting McGuinness v. Lincoln Hall, 263 F.3d 49, 53 [2d Cir. 2001]). "When considering whether a plaintiff has raised an inference of discrimination by showing that he was subjected to disparate treatment, . . . the plaintiff must show he was `similarly situated in all material respects' to the individuals with whom he seeks to compare himself." Graham, 230 F.3d at 39 (citing Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 [2d Cir. 1997]). Here, Plaintiff has merely alleged, in conclusory fashion, that he was similarly situated to the individuals with whom he seeks to compare. This is not enough. See Pergament v. Fed. Express Corp., 03-CV-1106, 2007 WL 1016993, at *9 (E.D.N.Y. Mar. 30, 2007) ("Notwithstanding success on the first three prongs, however, the Court finds that Worthy is unable to make out the fourth element [of a prima facie case] because she has not shown that her final warning letter and termination occurred under circumstances giving rise to an inference of discrimination on the basis of her sex or race. Worthy's allegations of racism and sexism by her superiors — and in particular, Malebranche-are, for the most part, highly conclusory and completely unsupported by record evidence. Indeed, Worthy's `evidence' in this respect consists primarily of her own speculation-as well as that of Mary Anne Leach . . ., a former coworker and friend-that Worthy's race and sex, and not the dismal performance of the station she supervised, must have been the `true' reasons behind Malebranche's decision to terminate Worthy."); Alfieri v. SYSCO Food Servs., 192 F. Supp.2d 14, 20 (W.D.N.Y. 2001) (observing that it is well-settled that "[f]or a plaintiff in a discrimination case to survive a motion for summary judgment, he or she must do more than present conclusory allegations of discrimination . . . he or she must offer concrete particulars to substantiate the claim") (internal citations omitted).

Moreover, even assuming, for the sake of argument, that Plaintiff has established a prima facie case of discrimination, the Court finds that Defendants have articulated a legitimate, non-discriminatory basis for their actions. More specifically, Defendants have introduced evidence of the following: (1) the timely submission of time sheets is necessary for OCSO to calculate payment for overtime and work-related incidences; (2) beginning in June 2004, the Human Resources Manager, Lieutenant Metz, began sending emails to department chiefs seeking assistance in obtaining missing time sheets from numerous employees; (3) upon receipt of this email, Chief Callisto ordered his supervisory personnel to begin issuing supervisor's memorandums for first time offenders and requests for discipline for those who had offended before; (4) Plaintiff had previously received a supervisor's memorandum regarding his submission of late time sheets in November 2003; (5) the supervisor's memorandum warned Plaintiff of the consequences of failing to timely submit time sheets in the future; (6) Plaintiff commented on the supervisor's memorandum that he would "make every effort possible to turn [the time sheets] in on time"; (7) Plaintiff subsequently failed to timely submit time sheets for the payroll period of May 29, 2004 to June 11, 2004; (8) as a result, on June 30, 2004, Sergeant Banks sent out a memorandum to Captain Albanese for progressive discipline.

Such record evidence establishes the following: (1) that a legitimate basis existed for issuing written reprimands for failure to timely submit time sheets; (2) that Plaintiff failed, on multiple occasions, to timely submit his time sheets prior to receiving a written reprimand; and (3) that, through a supervisor's memorandum, Plaintiff was warned of the consequences of his continued failure to timely submit his time sheets. In addition, Defendants have introduced the following evidence, which rebuts Plaintiff's allegation that he was treated differently than were similarly situated, non-Brazilian employees: (1) Lieutenant Rys, who is a naturalized United States citizen, also received formal discipline for submitting late time sheets; and (2) progressive discipline has been sought for other individuals who have had multiple violations of the time submission policy.

In fact, Plaintiff admitted, during his deposition, that, since filing his Complaint, he has learned that (1) Sergeant Banks received a written reprimand for submitting late time sheets "many years prior" to the date that Plaintiff received his written reprimand for submitting late time sheets, and (2) at some point in time after Plaintiff received his written reprimand, Sergeant Bucci received a written reprimand for submitting late time sheets. (Dkt. No. 59, Attach. 17, at 7.)

Furthermore, Plaintiff has failed to adduce record evidence establishing that (1) Defendants' proffered, non-discriminatory rationale is merely a pretext for discrimination, (2) the other individuals who were issued written reprimands were issued these reprimands in the same manner as was Plaintiff, and were also members of the same national origin as Plaintiff (i.e., they were treated the same as Plaintiff because they too are Brazalian), and (3) to the extent the other individuals who were issued written reprimands were non-Brazilian, they were not issued the referenced reprimands before their arbitration hearings (i.e., they received more favorable treatment than did Plaintiff).

For these reasons, Plaintiff's claim of discrimination based on Defendants' issuance of a written reprimand arising out of Plaintiff's failure to timely submit time sheets is dismissed.

The Court does not liberally construe Plaintiff's Second-Amended Complaint as asserting a claim of discrimination based on Defendant Gonzalez's issuance of a supervisor's memorandum in response to Plaintiff's email to Melody Holmes. However, the Court notes that, even if it were to liberally construe Plaintiff's Second-Amended Complaint as asserting this claim, it would not survive Defendants' motion for summary judgment. This is because (1) Plaintiff has not established a prima facie case of discrimination with regard to this issue (for the same reasons that Plaintiff did not establish prima facie case of discrimination with regard to the written reprimand), and (2) Defendants have offered a non-discriminatory reason for issuing the memorandum, i.e., that a number of supervisory officials interpreted the content of the email to be inappropriate, and (3) Plaintiff has failed to adduce record evidence establishing that Defendants' proffered, non-discriminatory rationale is merely a pretext for discrimination.

b. Denial of Promotion

As previously stated, in order to be considered for a promotion, a candidate must have received higher than, or equal to, the third highest score on the civil service examination. Candidates meeting such qualifications are then interviewed by a promotion panel. After the interview, the promotion panel evaluates each candidate and, based on those evaluations, submits its recommendations to Defendant Walsh. In making its recommendations, the promotion panel evaluates candidates according to a number of factors, including, but not limited to, prior discipline, performance evaluations, supervisor's memorandums, and the candidate's performance during the interview.

Plaintiff first became eligible for a promotion on or about February 7, 2005. Despite being eligible for a promotion on this date, as well as on nine other occasions, and despite interviewing for various promotions, Plaintiff was never promoted. Plaintiff argues that he was repeatedly denied promotions because of his national origin.

As an initial matter, it is undisputed that Plaintiff is able to satisfy the first three prongs of his prima facie case for discriminatory discharge under the McDonnell Douglas analysis. Having said that, the Court finds that Plaintiff has failed to establish a prima facie case of discrimination arising from the promotional panel's failure to promote him on ten separate occasions. Instead, Plaintiff has merely alleged, in conclusory fashion, that he was not promoted as a result of his national origin. Again, this is not enough.

See, supra, note 39 of this Decision and Order; see also Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001) ("[T]he court must respect the employer's unfettered discretion to choose among qualified candidates. . . . Our role is to prevent unlawful hiring practices, not to act as a `super personnel department' that second guesses employers' business judgments.").

Moreover, even assuming, for the sake of argument, that Plaintiff has established a prima facie case of discrimination (based on his conclusory allegation that he was treated less favorably than similarly situated, non-Brazilian employees during the interview process), the Court finds that Defendants have articulated a legitimate, non-discriminatory basis for their actions. More specifically, Defendants' have introduced evidence of the following: (1) despite sometimes scoring higher than the individuals who were promoted, Plaintiff was not promoted because, on at least three occasions in which he was interviewed by the promotion panel, he was not ranked high enough to be recommended for a promotion; (2) Plaintiff's rank was based on the shared opinion from members of the promotion panel that he did not possess the qualities necessary to be promoted; (3) in making a promotion determination, Defendants do not rely exclusively on a candidate's score on the civil service examination; and (4) at least some of the members of the promotion panel were not aware that Plaintiff was a naturalized citizen (let alone an individual of Brazilian descent).

(Dkt. No. 59, Attach. 4, at ¶ 22 [Brisson Affid.]; Dkt. No. 59, Attach. 3, at ¶ 29.)

(Dkt. No. 59, Attach. 4, at ¶¶ 16, 19, 22-24 [Brisson Affid.]; Dkt. No. 59, Attach. 3, at ¶¶ 26, 29; Dkt. No. 59, Attach. 8, at 38-39 [Wasilweski Dep. Tr.]; Dkt. No. 59, Attach. 10, at 105-106 [Gonzalez Dep. Tr.].)

(Dkt. No. 59, Attach. 16, at 29-31; Dkt. No. 59, Attach. 3, at ¶ 31; Dkt. No. 59, Attach. 8, at 36; Dkt. No. 59, Attach. 4, at ¶ 18.)

Such record evidence establishes the following: (1) there was a legitimate basis for denying Plaintiff a promotion; and (2) at least some of the promotion panel members could not have even considered denying Plaintiff a promotion based on his national origin because they were unaware that he was even a naturalized citizen. In addition, Defendants have introduced evidence that, on more than one occasion, Plaintiff was not the only candidate not promoted who scored higher than the individuals who were promoted. This evidence rebuts Plaintiff's allegation that he was treated differently than similarly situated, non-Brazilian employees.

(Dkt. No. 59, Attach. 55, at 2; Dkt. No. 59, Attach. 57, at 2; Dkt. No. 59, Attach. 59, at 2; Dkt. No. 59, Attach. 81, at 2.)

The Court notes that there is no evidence in the record that these other eligible candidates, who were not promoted but scored higher than the individuals who were promoted, have the same national origin as Plaintiff.

Furthermore, Plaintiff has failed to adduce record evidence establishing either that (1) Defendants' proffered, non-discriminatory rationale is merely a pretext for discrimination, or (2) the other individuals who were not promoted, who scored higher than the individuals who were promoted, have the same national origin as Plaintiff. Instead, Plaintiff only argues, in conclusory fashion, that it should be presumed that he was not promoted because of his national origin given that (1) Defendants had access to his personnel file (and certain individuals reviewed the file when contemplating disciplinary action or promotion), and they were therefore aware of his nationality, and (2) he was more qualified for the promotion than those promoted. Such a conclusory argument, based entirely on speculation, is not enough to withstand a motion for summary judgment. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) ("[E]ven in the discrimination context, a plaintiff must prove more than conclusory allegations of discrimination to defeat a motion for summary judgment."); see also Goenaga v. March of Dimes Birth Found, 51 F.3d 14, 18 (2d Cir. 1995) ("The party opposing summary judgment may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible.").

Plaintiff argues that Defendants failure to produce the promotion panel's scoring and ranking of those promoted gives rise to an inference that he was more qualified than those candidates.

For these reasons, Plaintiff's claim of discrimination based on his being denied a promotion because of his national origin is dismissed.

B. Plaintiff's Claim of Hostile Work Environment Under Title VII Due to Verbal Harassment

In addition to claiming that he was issued an unjustified written reprimand and wrongfully denied a promotion based on his national origin, Plaintiff claims that he was subjected to a hostile work environment based on his national origin, due to the verbal harassment by Defendants (including Defendant Gonzalez) that he experienced on multiple occasions. In support of their motion, Defendants argue as follows: (1) the claims against Kevin E. Walsh and Esteban Gonzalez, in their official capacity, should be dismissed; (2) Plaintiff failed to exhaust the mandatory administrative remedies before instituting this action in federal court, and therefore his Second-Amended Complaint should be dismissed; (3) Plaintiff's claims pursuant to Title VII are barred by the applicable statute of limitations; and (4) Plaintiff has failed to adduce record evidence establishing his hostile work environment claim.

For the reasons stated in Part IV.A.1. of this Decision and Order, Plaintiff's claims against Defendants Gonzalez and Walsh are dismissed. In addition, because the Court accepts Defendants' fourth argument (i.e., that Plaintiff has failed to adduce record evidence establishing this hostile work environment claim), it need not, and does not, consider Defendants' two other grounds for dismissal.

"To establish a claim of hostile work environment, a plaintiff must show that: (1) he or he was subjected to harassment because of his or her membership in a protected class that was so severe or pervasive as to alter the conditions of his or her employment; and (2) there is a specific basis for imputing the harassment to the defendant." Little v. Nat'l Broad. Co., Inc., 210 F. Supp.2d 330, 388 (S.D.N.Y. 2002) (citing Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 118 S. Ct. 2257 (1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998) [other citation omitted]).

"The test for the first prong is whether the employment environment was `objectively hostile'-that is, whether the environment was permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Little, 210 F. Supp.2d at 388 [citations and internal quotations omitted]. "The Supreme Court has emphasized that the standard for judging whether a work environment is objectively hostile must be sufficiently demanding so as to prevent Title VII from becoming a general civility code." Little, 210 F. Supp.2d at 388 [internal quotation marks and citations omitted]. "Courts must distinguish between merely offensive and boorish conduct and conduct that is sufficiently severe or pervasive as to alter the conditions of employment." Id. [internal quotation marks and citations omitted].

"In determining whether a workplace is objectively hostile, a court should look at the totality of the circumstances." Id. (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23). Factors that courts should examine include "the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance." Forklift Sys., Inc., 510 U.S. at 23. "When evaluating the `quantity, frequency, and severity' of the incidents, the court must look at the incidents `cumulatively in order to obtain a realistic view of the work environment.'" Little, 210 F. Supp.2d at 389 (citing Schwapp v. Town of Avon, 118 F.3d 106, 111 [2d Cir. 1997]). The conduct in question must be "severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive." Feingold v. N.Y., 366 F.3d 138, 150 (2d Cir. 2004). The Second Circuit has noted, however, that "[w]hile the standard for establishing a hostile work environment is high, . . . [t]he environment need not be `unendurable' or `intolerable.'" Terry v. Ashcroft, 336 F.3d 128, 147 (2d Cir. 2003) (quoting Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 [2d Cir. 2000]). Moreover, although a hostile work environment generally consists of "continuous and concerted" conduct, "a single act can create a hostile work environment if it in fact work [s] a transformation of the plaintiff's workplace." Feingold, 366 F.3d at 150 (quotations and citation marks omitted) (alternation in original).

As an initial matter, Plaintiff has failed to allege facts plausibly suggesting that the actions of Defendants-including Defendant Gonzalez-were discriminatory in nature. In any event, even assuming, for the sake of argument, that Plaintiff has alleged facts plausibly suggesting the actions in question (e.g., the hearsay statements about what an employee told Plaintiff that Gonzalez said, or what Gonzalez told Plaintiff that Melody Holmes said) were discriminatory in nature, Plaintiff has failed to adduce admissible record evidence establishing he was subjected to conduct that was so severe or pervasive as to alter the conditions of his employment. For example, Plaintiff has not adduced admissible record evidence establishing that the incidents (1) were caused by his national origin, (2) were frequent, (3) were objectively severe, (4) were physically threatening, or (5) otherwise unreasonably interfered with his ability to work.

For example, with regard to Defendant Gonzalez's actions, Plaintiff's Second-Amended Complaint specifically alleges as follows: (1) on July 26, 2006, Sergeant Banks served him with a Supervisor's Memorandum, on the orders of Defendant Gonzalez, which "reprimand[ed] and chastis[ed] [him] for unprofessional conduct" stemming from Plaintiff's email exchange with Melody Holmes; (2) Sergeant Banks told Plaintiff that Defendant Gonzalez stated that Plaintiff was "condescending" to Holmes; (3) "several months later," during a meeting with Banks and Gonzalez, Plaintiff asked Gonzalez to retract the Supervisor's Memorandum, but he refused, and "further commented that in addition to being[] `condescending,' [Holmes] said [he] was `abrasive'"; (4) Gonzalez order Plaintiff not to communicate with Holmes; (5) "a week or so later," Banks told Plaintiff that Gonzalez did not want Plaintiff "writing anything down about the meal times" on the Ramadan list; (6) on December 8, 2006, Plaintiff "unexpectedly met [Holmes,]" who told Plaintiff that she "never thought [he was] condescending or abrasive[, and] never said anything in that manner to Gonzalez"; (7) "in January or February of 2007," Gonzalez had a co-worker call Plaintiff at home about "stats" for the annual report for 2006; and (8) on or about June 21, 2007, Plaintiff was interviewed for a promotion, and during the interview, which Gonzalez was present for, then-Lieutenant Brisson asked Plaintiff "about the supervisor's memorandum [he] received for responding by email to [Holmes]." (Dkt. No. 35.)

For these reasons, Plaintiff's hostile work environment claim is dismissed.

C. Plaintiff's Claim of Retaliation Under Title VII Due to Issuance of Reprimand and Denial of Promotion

As stated above in Part I.A. of this Decision and Order, Plaintiff claims that Defendants violated his rights under Title VII by issuing him an unjustified written reprimand and by wrongfully denying him a promotion to Deputy-Sheriff Sergeant, in retaliation for his filing grievances and appeals, seeking arbitration, and filing a complaint with the EEOC regarding the written reprimand. Plaintiff also claims that he was issued an unjustified written reprimand and wrongfully denied a promotion in retaliation for his wife's involvement in federal district court proceedings, as well as her participation in disciplinary hearings involving other deputies.

In support of their motion, Defendants argue that Plaintiff's retaliation claim should be dismissed because (1) Plaintiff cannot establish that he was participating in a statutorily protected activity, and (2) Plaintiff cannot establish a causal connection between the protected activity and the adverse employment action. (Dkt. No. 59, Attach. 95, at 14-19.) Based on the current record, the Court accepts a majority of Defendants' first argument, as well as the entirety of Defendants' second argument.

In adjudicating retaliation claims, courts follow the McDonnell Douglas burden-shifting approach. Kaytor v. Elec. Boat Corp., 609 F.3d 537, 552 (2d Cir. 2010) (citations omitted). "At the summary judgment stage, if the plaintiff presents at least a minimal amount of evidence to support the elements of the claim, the burden of production shifts to the defendant to proffer a legitimate non-retaliatory reason for the adverse employment action." Kator, 609 F.3d at 552-53 (citations omitted). "If the employer produces such evidence, the employee must, in order to avoid summary judgment, point to evidence sufficient to permit an inference that the employer's proffered non-retaliatory reason is pretextual and that retaliation was a substantial reason for the adverse employment action." Id. at 553 (internal quotation marks and citations omitted).

"In order to establish a prima facie case of retaliation, [a plaintiff] must show (1) that []he participated in an activity protected by Title VII, (2) that h[is] participation was known to h[is] employer, (3) that h[is] employer thereafter subjected h[im] to a materially adverse employment action, and (4) that there was a causal connection between the protected activity and the adverse employment action." Kaytor, 609 F.3d at 552 (2d Cir. 2010) (citations omitted). "`Protected activity' refers to an action taken to protest or oppose statutorily prohibited discrimination." Berry v. Empire Homes Servs. LLC, 06-CV-2354, 2010 WL 1037948, at *10 (E.D.N.Y. Mar. 18, 2010) (citing 42 U.S.C. §§ 2000e- 3).

Plaintiff alleges that he engaged in the following protected activity, for which he was retaliated against: (1) on February 15, 2005, he filed a grievance in response to being issued a written reprimand for failing to timely submit time sheets; (2) in or about August 2005, he proceeded to arbitration regarding this incident; (3) on August 4, 2006, he filed a grievance over the supervisor's memorandum issued for the email that he sent to Ms. Holmes; and (4) on or about April 5, 2007, he filed a charge of discrimination with the EEOC.

Plaintiff also alleges that his wife engaged in the following protected activity, for which he was retaliated against: (1) in 1997, roughly seven years before marrying Plaintiff, his wife brought a lawsuit against the County of Onondaga based on alleged gender discrimination by Sergeant O'Dell (whom the County terminated shortly after she filed her Human Rights Complaint), which she ultimately discontinued; (2) in 2003, his wife reported to her supervisor that she smelled alcohol on a deputy's breath, and, based on an arbitrator's finding that the complaint was without merit and that a public apology was necessary, on March 10, 2005, Assistant Chief Wasilewski issued a public apology to the deputy; and (3) in 2006, Plaintiff's wife was subpoenaed to testify in a federal lawsuit filed by Deputy Veronica Casolare against the County of Onondaga and Sergeant O'Dell, but she never testified because the case settled.

A review of the docket sheet in Casolare v. Onondaga County, 00-CV-1500 (N.D.N.Y.) reveals the following: (1) the subpoena was issued sometime in 2006; and (2) the case settled on December 12, 2006.

As an initial matter, only two of the above-described actions were taken to protest or oppose statutorily prohibited discrimination: (1) Plaintiff's filing of his EEOC complaint; and (2) Plaintiff's wife's complaint of gender discrimination in 1997. As a result, to the extent that Plaintiff's retaliation claim arises out of any of the other above-identified issues, the claim is dismissed.

See, e.g., Holder v. City of Yonkers, 04-CV-10314, 2006 WL 1582081, at *6 (S.D.N.Y. June 7, 2006) (noting that the filing of a charge of employment discrimination with the EEOC constitutes protected activity).

See, e.g., Bampoe v. Coach Stores, Inc., 93 F. Supp.2d 360, 372 (S.D.N.Y. 2000) (noting that, under Title VII, even informal complaints about discrimination, such as complaints to management, constitute protected activities); but see Ebanks v. New York City Dept. of Environmental Protection, 05-CV-3172, 2009 WL 891796, at *7 (E.D.N.Y. Mar. 31, 2009) ("The filing of a union grievance . . . is not a `protected activity' under Title VII and, therefore, cannot form the basis for a Title VII retaliation claim.").

The Court notes that, with regard to Plaintiff's wife's involvement in the Casolare lawsuit, without more, the fact that she was (1) mentioned in a Decision and Order denying the defendants' motion for summary judgment, and (2) subpoenaed to testify, does not constitute engagement in "protected activity." In fact, being mentioned in a decision and ordered to provide testimony does not constitute "activity" of any sort.

Moreover, with regard to Plaintiff's wife's complaints of gender discrimination, the Court finds that, under the circumstances, those complaints do not give rise to a Title VII retaliation claim on behalf of Plaintiff. For the sake of much-needed brevity, the Court will assume that "third-party retaliation claims" under Title VII are cognizable, despite the existence of well-reasoned authority to the contrary. Even assuming that a third-party's engagement in protected activity may constitute protected activity by a plaintiff for purposes of a Title VII retaliation claim, the Court finds that no rational juror could find, based on the current record, that the protected activity engaged in by Theresa Spaulding gave rise to the Title VII retaliation claim asserted by Plaintiff in this action. The Court makes this finding for three reasons: (1) Plaintiff was not married to Ms. Spaulding at the time that she complained of gender discrimination; (2) approximately eight years elapsed from Ms. Spaulding's filing of the complaint (in 1997) and Plaintiff's experience of adverse action (in 2005); and (3) legitimate grounds existed warranting the adverse action taken against Plaintiff. Simply stated, these three facts render implausible the alleged causal connection between the two events in question.

See Genao v. New York City Dep't of Parks, 04-CV-2893, 2005 WL 1220899, at *5-6 (E.D.N.Y. May 23, 2005) (collecting cases on both sides, noting that "the Second Circuit has not addressed the question of third-party retaliation claims under Title VII").

See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) ("The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be `very close[.]' Action taken (as here) 20 months later suggests, by itself, no causality at all.").

Finally, with regard to Plaintiff's filing of his EEOC complaint on or about April 5, 2007, the Court finds that Plaintiff has made out a prima facie case of retaliation. This is because, subsequent to April 5, 2007, Plaintiff was denied promotions (specifically in June of 2007, October of 2007, December of 2007, May of 2008, and August of 2008). However, the Court has already found, in Part III.A. of this Decision and Order, that Defendants have satisfied their burden of demonstrating a legitimate, non-discriminatory reason for denying Plaintiff promotion opportunities. For this same reason, the Court finds that Defendants have articulated a legitimate, non-retaliatory reason for denying him promotion opportunities. As a result, the burden shifts to Plaintiff to demonstrate that Defendants' proffered non-retaliatory reason for denying him a promotion in June of 2007, October of 2007, December of 2007, May of 2008, and August of 2008 was pretextual, and that retaliation was a substantial reason for the adverse employment action.

See Mormol v. Costco Wholesale Corp., 364 F.3d 54, 57 (2d Cir. 2004) ("A tangible employment action . . . constitutes a significant change in employment status, such as . . . failing to promote. . . ." [internal quotations and citations omitted]).

See Simpson v. New York State Dep't of Civil Serv., 02-CV-1216, 2005 WL 545349, at *20 (N.D.N.Y. Mar. 1, 2005) (McCurn, J.) ("As it did in connection with plaintiff's discrimination claim, and for substantially the same reasons, the court finds that the Department has met its burden of articulating a legitimate, non-retaliatory reason for terminating plaintiff. . . . The burden thus shifts back to plaintiff Simpson to establish pretext."); Reznick v. Aramark Corp., 97-CV-18977, 1999 WL 287724, at *13 (E.D.N.Y. May 5, 1999) (noting that defendant's non-discriminatory reasons for adverse action also established non-retaliatory reasons for adverse action).

"A plaintiff may establish a Title VII violation even when a retaliatory motive is not the sole cause of the adverse employment action, . . . or when there were other objectively valid grounds for a discharge." Rainola v. Bratton, 243 F.3d 610, 625 (2d Cir. 2001) (citations omitted). However, "[a] retaliatory motive must be . . . `at least a `substantial' or `motivating' factor behind the adverse action." Rainola, 243 F.3d at 625 (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287) (other citation omitted). As the Second Circuit has explained, "[a] plaintiff may prove retaliation was a substantial or motivating fact behind an adverse employment action either (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similarly conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant." Id. (internal quotation marks and citation omitted). "Under some circumstances, retaliatory intent may also be shown, in conjunction with the plaintiff's prima facie case, by sufficient proof to rebut the employer's proffered reason for the [adverse action]." Id. (citation omitted). However, "[t]emporal proximity, standing alone, is insufficient to carry plaintiff's burden at step three[, the pretext element.]" Pellegrino v. County of Orange, 313 F. Supp.2d 303, 316 (S.D.N.Y. 2004) (internal quotation marks and citation omitted).

See also Hines v. Hillside Children's Ctr., 73 F. Supp.2d 308, 323-24 (W.D.N.Y. 1999) (noting that "[i]t is true that a `strong temporal correlation' between an employee's protected activity and an adverse job action can constitute some evidence of a retaliatory motive," but holding that temporal proximity was not enough to establish pretext for retaliation); Vails v. Police Dep't of the City of New York, 54 F. Supp.2d 367, 378 (S.D.N.Y. 1999) (finding a one-day difference between complaint and termination a "coincidence" and therefore insufficient); Valentine v. Standard Poor's, 50 F. Supp.2d 262, 291 (S.D.N.Y. 1999) ("Despite the temporal correlation between plaintiff's filing of the EEOC charge and his termination, he has failed to establish that S P's proffered reason for dismissing him, his misconduct, was false and that unlawful retaliation was the true reason for his discharge.")

Here, Plaintiff has failed to adduce any evidence establishing that a retaliatory motive was a substantial or motivating factor behind the adverse action. For example, other than temporal proximity, Plaintiff has not adduced other circumstantial evidence, such as disparate treatment of fellow employees who engaged in similar conduct. Nor has he adduced direct evidence of retaliatory animus directed against him by Defendants (or one of his supervisors).

For each of these reasons, Plaintiff's Title VII retaliation claim is dismissed.

D. Plaintiff's Claim of Denial of Right to Free Speech Under 42 U.S.C. § 1983 and First Amendment

As stated in Part I.A. of this Decision and Order, Plaintiff claims that Defendant Gonzalez unjustifiably suppressed his speech, in violation of 42 U.S.C. § 1983 and the First Amendment. In support of their motion, Defendants argue that Plaintiff's Section 1983 claim should be dismissed because (1) "the speech alleged to have been curtailed was made pursuant to Plaintiff's position as a public employee, and was well within the discretion of the County . . . its Sheriff's Office[,] and its employees to restrict[,]" and (2) even assuming that Plaintiff is able to establish that Defendant Gonzalez violated his right to free speech, because this claim is brought against Defendant Gonzalez in his official capacity, the claim is actually a claim of municipal liability against the County, and Plaintiff has failed to establish the existence of a custom or policy. Based on the current record, the Court accepts Defendants' arguments.

"[T]he First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). However, the First Amendment does not protect public employees' speech when made pursuant to their official duties. See Garcetti, 547 U.S. at 421 (noting that "[r]estricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen . . .[,] [i]t simply reflects the exercise of employer control over what the employer itself has commissioned or created").

In determining whether a public employee is entitled to constitutional protections for his or her speech, a court must embark on two separate inquiries. Garcetti, 547 U.S. at 418. "The first requires determining whether the employee spoke as a citizen on a matter of public concern." Id. (citations omitted). "If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech." Id. (citation omitted). "If the answer is yes, then the possibility of a First Amendment claim arises." Id. "The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public." Id. (citation omitted).

Here, Plaintiff alleges that Defendant Gonzalez violated his free speech rights when he told Plaintiff not to have further contact with Melody Holmes, and told a co-worker of Plaintiff's to tell Plaintiff to remove the remarks Plaintiff made regarding mealtimes on the inmate Ramadan meal registration list. Clearly these are not maters of public concern. Rather, they relate to restrictions of Plaintiff's work-related speech.

In addition, the Court agrees with Defendants that, because Plaintiff has brought this claim against Defendant Gonzalez in his official capacity, the claim is actually a claim of municipal liability against the County. Furthermore, Plaintiff has failed to allege facts plausibly suggesting a custom or policy of suppressing employee speech, let alone adduce record evidence establishing the existence of a custom or policy of suppressing employee speech.

Similarly, Plaintiff has failed to allege facts plausibly suggesting a custom or policy of retaliating against employees for engaging in protected activity, let alone adduce record evidence establishing the existence of a custom or policy of retaliation based on engagement in protected activity. As a result, to the extent that Plaintiff's Second-Amended Complaint can be liberally construed to assert a claim of retaliation against Onondaga County under 42 U.S.C. § 1983 (Plaintiff's claims against Defendants Walsh and Gonzalez are brought against them in their official capacity), that claim is also dismissed.

For these reasons, Plaintiff's free-speech claim is dismissed.

E. Plaintiff's Cross-Motion to File a Third-Amended Complaint

As an initial matter, the Court rejects Plaintiff's request for leave to file a Third-Amended Complaint, because that request was already considered and denied by Magistrate Judge Peebles. ( See Text Minute Entry for 2/17/09.) Plaintiff never filed an appeal from that denial, and the deadline in which to do so has expired.

Moreover, Plaintiff's request was submitted, not as a proper motion, but merely as an argument raised in his response memorandum of law. As a result, Plaintiff's request is unaccompanied by an affidavit, a specific identification of the proposed amendments, and a copy of the proposed amended pleading, as required by the Local Rules of Practice for this Court. See N.D.N.Y. L.R. 7.1(a)(4) (noting that "[a] party moving to amend a pleading pursuant to Fed.R.Civ.P. 14, 15, 19-22 must attach an unsigned copy of the proposed amended pleading to its motion papers").

The Court notes that, on January 2, 2008, Plaintiff filed a motion to amend his Complaint, and attached to his motion a proposed Amended Complaint. (Dkt. No. 26.) Although the Court initially rejected the proposed Amended Complaint (Dkt. No. 34), it is clear that Plaintiff was aware of the requirement that he file a motion to amend his Complaint and attach his proposed Amended Complaint in order for the Court to consider the relief requested.

Furthermore, Plaintiff's request is not contained in a response to a motion to dismiss for failure to state a claim (which typically occurs relatively early in an action), but in a response to a motion for summary judgment. As a result, Plaintiff's request was filed nearly one year and ten months after the signing of his Complaint, and more than three months after the conclusion of discovery. ( See generally Docket Sheet.) Simply stated, permitting Plaintiff to drastically change the landscape of his claims at such a late stage of the action would unduly prejudice Defendants, who spent the time and expense of filing two comprehensive and lengthy motions for summary judgment on the claims asserted in Plaintiff's Second-Amended Complaint, and who would not have the benefit of conducting discovery on such new claims before trial.

See Matiyn v. Allen, 06-CV-1503, Decision and Order, at 8-9 n. 9 (N.D.N.Y. Sept. 28, 2010) (Suddaby, J.) [collecting cases].

In any event, even if the Court were to overlook these flagrant procedural errors, the Court would nonetheless deny Plaintiff's request on grounds of futility. This is because there is no evidence in the record from which a rational factfinder could conclude that Onondaga County, through its policymaking officials, had (or has) a custom or policy of denying individuals (1) their due process rights when such individuals sought (or seek) to challenge the issuance of written reprimands and/or the denial of promotions, or (2) their equal protection right to be treated in the same manner as all other similarly situated individuals (or that such differential treatment was (or is) based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person). To the contrary, the record evidence adduced by the parties establishes that Onondaga County, through the OCSO, has express anti-harassment, anti-discrimination, and anti-retaliation policies. In addition, OCSO maintains internal procedures for aggrieved employees to seek redress for conduct that is discriminatory, harassing, and/or retaliatory.

In order for a municipality to be liable pursuant to Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), the conduct causing the plaintiff's injury must have occurred pursuant to "policy or custom, . . . made by [the municipality's] lawmakers or by those whose edicts or acts may fairly be said to represent official policy." Monell, 436 U.S. at 694.

For each of these alternative reasons, Plaintiff's cross-motion to file a Third-Amended Complaint is denied.

ACCORDINGLY, it is

ORDERED that Defendants' motion for summary judgment (Dkt. No. 59) is GRANTED in its entirety; and it is further ORDERED that Plaintiffs' Second-Amended Complaint (Dkt. No. 35) is DISMISSED with prejudice in its entirety. The clerk is directed to enter judgment in favor of the defendants and close this case.

Dated: September 30, 2010

Syracuse, New York